Full Text:Volume 4B

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Contents

Volume 4B - Pre-Trial Proceedings

The Parties in a Proceeding

Role of the Crown

General Principles

The Crown's role as a "minister of justice" must enforce the laws of the jurisdiction.

Duty of Knowledge

It is improper for the Crown to be selective as to which laws they wish to enforce except when exercising discretion in a particular case.[1]

Both Crown and defence have a "responsibility in providing relevant case law to assist the court".[2]

Prosecuting Crown as Judicial Office

The role of the prosecuting Crown is "quasi-judicial".[3]

Nevertheless, prosecutions are to be undertaken with "earnestness and vigour".[4]

Discretion

The prosecutor "always has a discretion in prosecuting criminals to the full extent of the law".[5]

Supeonas

It is possible for the Crown to avoid a subpoena to provide evidence justifying the basis for exercising their discretion, such as in a coroner's inquest.[6] However, a subpoena to attend a commission inquiry to explain their actions will be enforceable.[7]

Reviewability of Advice

The Crown's advice on the form charges cannot be reviewable except as a possible abuse of process.[8]

Duties in Handling of Multiple Charges

The powers of the prosecutors include the "power to charge multiple offences".[9]

Where alleged "conduct constitutes an offence under more than one section of the Code, the Crown has a discretion with respect to the offence for which the accused is to be prosecuted".[10]

  1. R v Catagas, 1977 CanLII 1636 (MB CA), per Freedman CJ, at para 2
  2. R v Adams, 2011 NLCA 3 (CanLII), per Welsh JA
  3. R v Bain, [1992] 1 SCR 91, 1992 CanLII 111 (SCC), per Stevenson J
  4. Berger v US 295 US 78 (1935)
    Bain, supra ("[A prosecutor's duty is] to see to it that every material point is made which supports the prosecution case or destroys the case put forward for the defence. But as prosecuting Counsel he should not regard his task as one of winning the case. He is an officer of justice. He must present the case against the prisoner relentlessly, but with scrupulous fairness.")
  5. R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J, at para 64
  6. Picha v Dolan, 2009 BCCA 336 (CanLII), per curiam
  7. Attorney General v Davies, 2009 BCCA 337 (CanLII), per curiam
  8. R v Ghavami, 2010 BCCA 126 (CanLII), per Donald and Huddart JJ
  9. Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170, per Lamer J, at para 40
  10. R v Simon (1979), 45 CCC (2d) 510 (ONCA), 1979 CanLII 2997 (ON CA), per Martin JA, at p. 514

Definition of Crown, Prosecutor and Attorney General

Purpose of Prosecution

A prosecution is a "search for the truth within the confines of a process that provides for procedural and substantive fairness for the accused".[1]

Crown Role Not to Secure Conviction

The role of the Crown is not to secure convictions. Its role is to present to a trier of fact evidence that is considered credible and relevant to the alleged offence.[2] The role is also characterized as one of ensuring that "justice is done".[3]

The role of bringing forward relevant evidence does not oblige the Crown to call certain evidence. This choice is part of the Crown core discretion. Merely disclosing the existence of the evidence is generally sufficient to satsify this duty.[4]

Role Includes Promoting Justice

The Crown's role is to "promote the cause of justice" and not to persuade a trier of fact "to convict other than by reason".[5] The Crown's job includes seeking the truth. However, it does not mean seeking justice for a complainant.

Role Includes Presenting Evidence and Seeking Truth

The Crown is expected to "present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts."[6]

The prosecution of offences is not a contest between the crown and the accused. It is an investigation to determine the truth. It should be done without any feelings of animus.[7]

Crown May Advocate

Nevertheless, the Crown may still "act as a strong advocate within the adversarial process. ...it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability."[8] The Crown should "press fully and firmly every legitimate argument tending to establish guilt, but must be "accurate, fair and dispassionate in conducting the prosecution and in addressing the jury".[9]

The use of rhetorical techniques to distort the evidence or to present misleading and highly prejudicial statements are inappropriate.[10]

Personal Views of Guilt Not Relevant and Impermissible

It is not necessary for the Crown to personally believe in a person's guilt to proceed on charges.[11]

The Crown should not express any personal opinion of guilt or innocence.[12]

Decision to Prosecute

The decision to prosecute is solely in the authority of the crown and should only be reviewable in the clearest of cases.[13]

Duty to Recommend Penalties

Historically, the Crown Counsel was not responsible for making recommendations on penalty in a sentencing hearing.[14]

  1. R v Desjardin, 2019 ABCA 215 (CanLII), per curiam, at para 11 R v Chamandy, (1934) 1934 CanLII 130 (ON CA), 61 CCC 224 (Ont. C.A.), per Riddell JA ("A criminal trial ... is an investigation that should be conducted without animus on the part of the prosecution, with the single view of determining the truth.")
  2. R v Boucher, 1954 CanLII 3, [1955] SCR 16, 110 CCC 263, per Locke J, at para 26
    R v Power, 1993 CanLII 3372 (NL CA), per Marshall JA (2:1) ("This quasi-judicial role precludes the Crown having an interest in procuring a conviction as its duty is to fairly and impartially exhibit all facts to the court. The prosecutorial role excludes any notion of winning or losing")
    Chamandy, supra ("It is the duty of counsel for the Crown at a criminal trial to bring out before the jury all the facts favourable and unfavourable to the accused.") and ("a criminal prosecution is not a contest between the State and the accused in which the State seeks a victory")
    R v Vallières, (1970) 1969 CanLII 1000 (QC CA), 4 CCC 69, per Hyde JA
    R v Charest, 1990 CanLII 3425 (QC CA), per Fish JA ("Crown counsel's duty is not to obtain a conviction, but "to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime"") R v Ahmed, 2019 SKCA 47 (CanLII), per Barrington-Foote JA, at para 28 ("The Crown must bring forward evidence it considers credible that relates to the material facts")
  3. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326(complete citation pending), at p. 333
    Ahmed, supra, at para 28 ("The function of the prosecutor is not to secure a conviction, but to “ensure justice is done” ")
  4. Ahmed, supra, at para 28("...the Crown has the discretion to decide which witnesses will be called, and a court will not interfere with that discretion unless the Crown is influenced by some oblique motive: ... . Further, the duty to bring forward evidence may be satisfied by disclosing the material to the defence...")
    Stinchcombe, supra, at p. 338 R v Harris, 2009 SKCA 96 (CanLII), per Ricards JA, at para 42
    R v JV (1994), 1994 CanLII 5620 (QC CA), 91 CCC (3d) 284 (WL) (Que CA), per Lebel JA, at para 8
  5. R v Proctor, 1992 CanLII 2763 (MB CA), (1992) 69 CCC (3d) 436, per Twaddle JA, at para 59 and adopted in R v Trochym, 2007 SCC 6 (CanLII), per Deschamps J
  6. Trochym, supra
  7. R v Chamandy, 1934 CanLII 130 (ON CA), (1934), 61 CCC 224, per Riddell JA, at p. 227
  8. R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 21
  9. Charest, supra
    R v Pisani, (1970) 1970 CanLII 30 (CSC), 1 CCC (2d) 477 (SCC), per Laskin J, at p. 478
  10. Trochym, supra at 79
  11. Miazga v Kvello Estate, 2009 SCC 51 (CanLII), per Charron J, at paras 65 to 67
  12. Charest, supra ("It is improper for Crown counsel to express his or her opinion as to the guilt or innocence of the accused(9) or as to the credibility of any witness.(10) Such expressions of opinion are objectionable not only because of their partisan nature, but also because they amount to testimony which likely would be inadmissible even if Crown counsel had been sworn as a witness.(11)")
    Boucher, supra, per Locke J, at p. 273
  13. Miazga, supra
  14. R v Butterwasser (1948), 32 Cr. App. Reports 81(*no CanLII links) at 87 (UK decision)
    R v Lapierre, [1976] NSJ 421, (NSCA)(*no CanLII links) , at para 32 ("Crown counsel should never request a specific term of imprisonment and in this province it rarely happens that such is done.")

Discretion of Crown

Relationship with Police

The crown must remain separate from the police. [1] The Crown and police are to consult with each other but the "maintenance of a distinct line between these two functions is essential to the proper administration of justice."[2]

The Crown can be liable for their part in giving advice to police during an investigation.[3]

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[4]

  1. Dix v Canada (AG), 2002 ABQB 580 (CanLII), per Ritter J - fined $200,000 to crown
  2. See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  3. see Dix v Canada (Attorney General), supra
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
  4. R v Regan, 2002 SCC 12, [2002] 1 SCR 297, per LeBel J at 61-70

Negotiations with Defence

The Crown is permitted to negotiate charges, by offering to drop certain charges that are supported by evidence, in exchange for guilty pleas to others. [1] By inference, it may be improper for the Crown to use charges unsupported by evidence as part of a bargain. There is also a requirement that the defence be in possession of a "substantial" portion of the disclosure so that an informed decision can be made.[2]

A plea deal worked out between a particular Crown Attorney and defence counsel may have a binding effect on the Crown on other cases.[3]

  1. R v Babos, 2014 SCC 16 (CanLII), per Moldaver J, at para 59
  2. Babos, ibid., at paras 59 to 60
  3. (UK) R v Mattu, [2009] EWCA Crim 1483 [1]

Judge Shopping

Judge shopping is where counsel attempts to influence which judge will hear a particular matter. Judge shopping by crown counsel is not acceptable as it suggests that the system is partial.[1]

  1. R v Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979, per Cory J
    R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J, at para 61
    R v Pilarinos, 2001 BCSC 1690 (CanLII), per Bennett J, at para 126 ("The principle is clear – judge shopping by Crown counsel is not acceptable in our system of justice. I will return to this issue when I discuss the evidence in this case.")

Non-Appearance of Crown

803
...

Non-appearance of prosecutor

(4) Where the prosecutor does not appear at the time and place appointed for the resumption of an adjourned trial, the summary conviction court may dismiss the information with or without costs.
(5) to (8) [Repealed, 1991, c. 43, s. 9]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.

CCC

Relationship with Witnesses

Crown's should not call witnesses that give evidence that they knew or should have known were lying.[1]

The Crown has an ethical obligation "to ensure that an accused person is not denied a fair trial as a result of their words or deeds". However, it is not to say that Crown counsel cannot "be forceful during closing argument" that may "jeopardize the accused's right to a fair trial".[2]

Obligation to Call Witnesses
  1. (US) United States v Freeman, 691 F.3d 893 (7th Cir. 2012)
    Testimonial Evidence
  2. R v Joyce, 1998 CanLII 12216 (NB CA), per Drapeau JA, at p. 10

Preparation

Guidelines on the preparation of witnesses by crown include:[1]

  • Counsel should not discuss evidence with witnesses collectively
  • It witnesses memory should be exhausted through questioning before any references are made to conflicting evidence
  • Witnesses recollection should be recorded by counsel. Sometimes it should be done in the presence of a third-party or police officer.
  • Question should not be suggestive

Inappropriate preparation and communication with witnesses may contaminate the residence and produce a mistrial.[2]

  1. R v Spence, 2011 ONSC 2406 (CanLII), per Howden J
  2. Spence, ibid.

Crown Undertakings

Agreements made by a Crown Attorney is binding upon the Attorney General. Their word is to be relied upon. Thus, if a subsequent Crown were to repudiate an agreement could be an abuse of process. [1]

  1. Aucoin v Nova Scotia (Attorney General) (1990) 94 N.S.R. (2d) 205(*no CanLII links) -- first crown agrees to withdraw charges, attorney general directs charges to proceed
    R v Hardick, [1990] NSJ No. 305(*no CanLII links) - charges stayed

Abuse of Process

See also: Abuse of Process and Abuse of Process by Crown Counsel

Intervening Crowns

Intervention by the Crown in a collateral case is to be done "sparingly" or "rarely".[1] Granting intervener status may result in unfairness or appearance of unfairness without adding much to the content of the submissions.[2]

When Attorney General does not stay proceedings

579.01 If the Attorney General intervenes in proceedings and does not stay them under section 579 [stay of proceedings by crown], he or she may, without conducting the proceedings, call witnesses, examine and cross-examine witnesses, present evidence and make submissions.
2002, c. 13, s. 47.
[annotation(s) added]

CCC

Intervention by Attorney General of Canada or Director of Public Prosecutions

579.1 (1) The Attorney General of Canada or the Director of Public Prosecutions appointed under subsection 3(1) of the Director of Public Prosecutions Act, or counsel instructed by him or her for that purpose, may intervene in proceedings in the following circumstances:

(a) the proceedings are in respect of an offence for which he or she has the power to commence or to conduct a proceeding;
(b) the proceedings have not been instituted by an Attorney General;
(c) judgment has not been rendered; and
(d) the Attorney General of the province in which the proceedings are taken has not intervened.
Sections 579 and 579.01 to apply

(2) Sections 579 [stay of proceedings by crown] and 579.01 [Attorney General may intervene in certain proceedings] apply, with any modifications that the circumstances require, to proceedings in which the Attorney General of Canada or the Director of Public Prosecutions intervenes under this section.

1994, c. 44, s. 60; 2019, c. 25, s. 265.
[annotation(s) added]

CCC

  1. R v Mayers, 2011 BCCA 268 (CanLII), per Saunders JA, at para 5 - concerning intervening in sentence appeal
    R v Osolin, 1993 CanLII 87 (SCC), [1993] 2 SCR 313, per Sopinka J ("The discretion to allow interventions in criminal appeals has been exercised sparingly by this Court.")
  2. Mayers, supra

Conduct in Trial

Theory of the Case

A Crown does not need to "particularize" as to the manner in which a crime is alleged to have been committed.[1] There is some "fluidity" allowed to the Crown chancing the theory "to accommodate changes in the evidence", including changes arising from the accused testifying.[2]

The Crown is not obliged to prove "particulars" that are given orally at the opening of a trial.[3]

A mistrial can be found where the Crown, at the end of its case, stays the charges against a co-accused, effectively changing its theory of the case.[4]

Changing Theory Mid-trial

The Crown can generally change its theory to conform with the evidence that comes out in trial as long as it is not unfair.[5]

It may not necessarily be unfair for the Crown to change its theory of the case mid-trial to a lesser included offence.<ref> Pawluk, ibid., at para 30

  1. R v Heaton, 2014 SKCA 140 (CanLII), per Jackson JA, at para 22
  2. Heaton, ibid., at para 22
  3. Heaton, ibid., at para 23
  4. R v White, 2009 BCSC 1838 (CanLII), per Griffin J
  5. R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA, at para 30
    R v Khawaja, 2010 ONCA 862 (CanLII), 103 O.R. (3d) 321, per curiam (3:0), aff’d 2012 SCC 69 (CanLII), [2012] 3 SCR 555, per McLachlin CJ (7:0)

See Also

Related

Other Parties

Crown Policy Manuals

Prosecutorial Discretion

General Principles

See also: Role of the Crown

Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences”.[1] It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it".[2] The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed.

The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace".[3]

The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process".[4]

Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.[5]

Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.[6]

Discretion is essential to keep the system from becoming "unworkably complex and rigid."[7]

Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.[8]

The court cannot direct the Crown on what offences they must prosecute.[9]

While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.[10]

Core matters of prosecutorial discretion cannot be reviewed except for abuse of process.

The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"[11]

Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:[12]

  • the decision to prosecute
  • the stay of a charge
  • the withdraw of a charge
  • the acceptance of a lesser charge
  • the Crown election
  • taking control of a private prosecution
  • the decision to appeal
  • the decision to consent to an adjournment [13]
  • consenting or refusal to consent to re-election[14]
  • notice to seek increased penalty[15]

It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.[16]

Constitutionality

The "existence of prosecutorial discretion does not offend the principles of fundamental justice".[17]

  1. R v Anderson, 2014 SCC 41 (CanLII), per Moldaver J, at para 44
  2. Anderson, ibid., at para 44
    Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372{{perSCC|Iacobucci and Major JJ}, at para 47
  3. R v Smythe (1971), 1971 CanLII 30 (ON CA), 3 CCC(2d) 97 (Ont. C.A.), per Wells CJHC, at pp. 105 and 109 aff'd at 1971 CanLII 831 (SCC), per Fauteux CJ
  4. R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at paras 20, 63 to 64
  5. R v Catagas, 1977 CanLII 1636 (MB CA), [1978] 38 CCC (2d) 296, per Freedman CJM, at p. 301
  6. R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux‑Dubé J ("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers ...")
    see also R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux‑Dubé J
  7. R v Beare, [1988] 2 SCR 387, 1988 CanLII 126 (SCC), per La Forest J, at p. 410-411
  8. Power, supra, at pp. 626-627
  9. Power, supra (“A judge does not have the authority to tell prosecutors which crimes to prosecute...”.)
  10. e.g. R v K(M), (1992) 74 CCC (3d) 108, 1992 CanLII 2765 (MB CA), per O'Sullivan JA, at p. 110 - commenting on "zero-tolerance" policy on prosecution
  11. See R v 974649 Ontario Inc., 2001 SCC 81 (CanLII), [2001] 3 SCR 575, per McLachlin CJ
    R v LL, 2015 ABCA 222 (CanLII), per curiam, at para 10
  12. R v DN, 2004 NLCA 44 (CanLII), per Wells JA, at para 17
    Krieger, supra
    Power, supra, at paras 41 to 43
    Beare, supra, at pp. 410-411
  13. DN, supra and Beare, supra, at para 51
  14. R v Ng, 2003 ABCA 1 (CanLII), per Wittmann JA
  15. R v Gill, 2012 ONCA 607 (CanLII), per Doherty JA
  16. Anderson, supra, at paras 29 to 33
  17. Beare, supra, at para 56
    R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC), per La Forest J, at p. 348
    R v Jones, 1986 CanLII 32 (SCC), [1986] 2 SCR 284, per La Forest J, at pp. 303-304

Calling Witnesses

See also: Inferences#Inference from Failing to Call Witnesses and Competence of Witnesses to Testify

The Crown does not need to call any witnesses it considers to be unnecessary.[1] Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.[2]

There is no obligation on the Crown to call any witnesses at all, short of it amounting to an abuse of process.[3]

The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.[4]

  1. Lemay v The King, 1951 CanLII 27 (SCC), [1952] 1 SCR 232, at p. 241
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 14
  2. Jolivet, ibid., at para 29
  3. R v Rezaei, 2017 BCSC 611 (CanLII), per Jenkins J
    R v Cook, 1997 CanLII 392 (SCC), [1997] S.C.J. No. 2, per L'Heureux-Dube J, at para 56
  4. R v LL, 2015 ABCA 222 (CanLII), per curiam

Relationship with Police

The Crown and police are to consult with each other but the "maintenance of a distinct line between these two functions is essential to the proper administration of justice."[1]

The Crown can be liable for their part in giving advice to police during an investigation.[2]

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[3]

  1. See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  2. see Dix v Canada (Attorney General), 2002 ABQB 580 (CanLII), per Ritter J
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
  3. R v Regan, 2002 SCC 12, [2002] 1 SCR 297, per LeBel J at 61-70

Evaluating Whether to Prosecute (Charge Screening)

Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction"[1] and there is a "public interest" in the proceeding.[2]

One cannot evaluate the decisions of the Crown to proceed retroactively. The context of what was known at the time.[3]

Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.[4]

Re-evaluation of proceedings can be based on aspects that come to light at trial:[5]

  • witnesses may not testify in accordance with their earlier statements;
  • weaknesses in the evidence may be revealed during cross-examination;
  • scientific evidence may be proved faulty; or
  • defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
Province's Policy
  1. Some provinces use difference standards such as "realistic prospects of conviction" (NS) or "substantial likelihood" (BC)
  2. Miazga v Kvello Estate, [2009] 3 SCR 339, 2009 SCC 51 (CanLII), per Charron J, at para 64
  3. Miazga v Kvello Estate, ibid., at para 76
  4. R v Harrigan and Graham (1975), 33 C.R.N.S. 60 (Ont. C.A.)(*no CanLII links) , per Henry J, stated, at p. 69 ("In exercising these powers, which vitally concern the right and liberty of the indi­vidual, he must take into account not only the interest of the individual but also what the public interest requires.")
    R v Kenny, 1991 CanLII 2738 (NL SC), per Barry J
  5. Miazga v Kvello Estate, supra, at para 76

Prospects of Conviction

"Reasonable Prospects of Conviction" (RPC) is an objective test.

RPC must be more than establishing a prima facie case against the accused.

RPC does not require that conviction is "likely".

The Crown is generally permitted consideration of the reliability of the complainant or witness. Determinations on the credibility of that person is often not appropriate and is done only exceptionally and on a limited basis.

Public Interest

The determination of public interest is primarily a function of the gravity of the offence and level of culpability of the offender.

While there are many elements that inform the gravity of the offence

The Crown considers the wishes of the alleged victim or complainant, including:

  • the trauma caused by testifying and its effect on rehabilitation
  • the social pressures upon the person from their involvement
  • their willingness to cooperate and testify

There should also be careful consideration on whether it is possible to mitigate these issues through resources with the courts, victim services or police. For example, the use of testimonial aids may assist in the testimony. Real dangers to the person may be mitigated through police protections. Emotional trauma may be mitigated with victim services.

The Crown will usually not force a vulnerable victim to testify in a case where there is clear interest against doing so.

Crown Election

See also: Crown Election

The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system".[1]

  1. R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA, at para 190, appealed to SCC on other issues at 2015 SCC 15 (CanLII), per McLachlin CJ

See Also

Role of the Defence Counsel

General Principles

The defence counsel have several duties including:[1]

  • Duty of loyalty to the client
  • Duty of confidentiality to the client
  • Duty of honesty
  • Duties to the Court

These duties overlap and may occasionally conflict.

Counsel's purpose is to "provide professional assistance and advice" which involves allowing him to "exercise his professional skill and judgment in the conduct of the case".[2] He is responsible to conduct the defence and "exercise independent judgment as to what is in the client's best interests" and decide whether a particular course of action is within counsel's "duties as an officer of the court".[3]

Ethical Standards

Counsel who violates some ethical standard of the profession does not necessarily equate to a breach of the right to effective counsel. The two must be treated separately.[4] Concerns only for counsel performance, without a prejudice having occurred, can only be addressed by the profession's self-governing body.[5]

Conduct

All counsel are required to treat witnesses, counsel and the court with "fairness, courtesy and respect".[6]

Counsel who has been suspended from the bar while conducting trial will not necessarily require a new trial. Overturning the verdict requires that the counsel "ability to effectively represent the [accused] was impaired as a result of that disqualification."[7]

Counsel who is intoxicated during trial will result in an overturning of verdict regardless of the impact on the reliability on verdict.[8]

Retainer

Where counsel appears with an accused it is presumed that they have a general retainer. Counsel should tell the court if that is not the case.[9]

  1. e.g. Myers v Elman, (1940) AC 282 (HL) per Lord Wright ("A solicitor is an officer of the court and owes a duty to the court; he is a helper in the administration of justice. He owes a duty to his client, but if he is asked or required by his client to do something which is inconsistent with this duty to the court, it is for him to point out that he cannot do it and, if necessary, cease to act")
  2. R v Faulkner, 2013 ONSC 2373 (CanLII), per Code J, at para 39
  3. Faulkner, ibid., at para 39
    R v Samra, 1998 CanLII 7174 (ON CA), per Rosenberg JA, at paras 30 to 33
  4. R v GDB, 2000 SCC 22 (CanLII), per LeBel J, at para 5 ("the question of competence of counsel is usually a matter of professional ethics that is not a question for the appellate courts to consider")
  5. GDB, ibid., at para 29
    See also Ineffective Counsel
  6. R v Felderhof, 2003 CanLII 37346 (ON CA), per Rosenberg JA
  7. R v Prebtani, 2008 ONCA 735 (CanLII), per Rosenberg JA
  8. Prebtani, ibid.
  9. R v Harrison and Alonso, 1982 ABCA 152 (CanLII), per curiam
    R v Salha, 2007 ABQB 159 (CanLII), per Lee J, at para 24

Duty to the Court

Both Crown and defence have a "responsibility in providing relevant case law to assist the court".[1]

In registering objections, Counsel only need to do it once to extinguish their duty. Renewing objections "ad nauseam" or quarreling with the judge is not obligated.[2]

Jury Nullification

Defence counsel are not permitted to direct a jury to ignore the law.[3]

  1. R v Adams, 2011 NLCA 3 (CanLII), per Welsh JA
  2. Redican v Nesbitt, [1924] SCR 135, 1923 CanLII 10 (SCC), per Idington J
  3. R v Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90 (SCC), per Dickson J and Beetz J and Wilson J
    R v Latimer, [2001] 1 SCR 3, 2001 SCC 1 (CanLII), per curiam

Duties of Honesty

Defence counsel have an obligation not to call evidence that is believed or known to be false. The lawyer must attempt to dissuade the accused from seeking to call such witnesses and if unsuccessful should withdraw as counsel.[1]

Where an accused admits to committing the offence to counsel, counsel cannot advance any evidence that would tend to contradict this fact.[2] This will also include prohibiting counsel from calling the accused.[3]

A failure to pass a polygraph does not equate to a confession and so does not prevent calling the accused.[4]

When defence counsel become in possession real evidence such as a video of a criminal offence, they are obliged to turn it over to police.[5]

  1. R c Legato, 2002 CanLII 41296 (QC CA), per Biron JA, at para 88
    see also CBA Code of Professional Conduct
  2. R v Li, 1993 CanLII 1314 (BC CA), per McEachern JA, at paras 48 to 74
  3. Li, ibid.
  4. R v Moore, 2002 SKCA 30 (CanLII), per Tallis JA
  5. R v Murray, 2000 CanLII 22378 (ON SC), per Gravely J

Duty of Loyalty and Confidentiality

See also: Conflicts of Interest

A lawyer representing an accused must have undivided loyalty to their client.[1] Loyalty is a fundamental principle of the solicitor-client relationship and is essential to the integrity of system and the public's confidence in it.[2]

The duty of loyalty requires that there be no conflict of interest with the lawyer. A conflict of interest is where there is "a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or third person."[3]

The duty of loyalty includes the duty of candor in relation to retainer fees.[4]

  1. R v MQ, 2012 ONCA 224 (CanLII), per Goudge JA, at para 26
  2. see R v Widdifield, 1995 CanLII 3505 (ON CA), (1996), 25 O.R. (3d) 161 (C.A.), per Doherty JA, at pp. 171-172
  3. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J, at para 31
  4. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J

Decision Making

Where counsel make good faith decisions in the best interests of the client, a court should not look behind it except to prevent a miscarriage of justice.[1]

A retainer can be employed to set out what authority the counsel has to make without the explicit instructions of the client.[2]

Instructions

While it is not necessary to seek express approval for "each and every decision" in relation to the conduct of the defence, certain fundamental decision ethically require counsel to seek explicit instructions:[3]

  • whether to plead guilty or not guilty
  • whether to testify or not to testify
  • whether to chose trial by provincial court, superior court with or without a jury

Failure to get instructions on these fundamental decisions could "raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice".[4]

It is often advisable that counsel have instructions provided to them in writing.[5]

Relationship with Client

The defence counsel is not the alter ego of the client. The function of defence counsel is to provide professional assistance and advice. He must, accordingly, exercise his professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.

There is no principle in law that the defence lawyer is the "mouth-piece" or "alter ego" of the client.[6]

There is no obligation for counsel to "make submissions no matter how foolish or ill-advised or contrary to established legal principle and doctrine, provided that is what the client desires".[7]

In fact, "there are only a small number of fundamental decisions where the client 'calls the shots'".[8]

Trial strategy is the responsibility of defence counsel after consulting with the accused. The accused has the right to terminate the relationship at any time.[9]

  1. R v GDB, [2000] 1 SCR 520, 2000 SCC 22 (CanLII), per Major J, at para 34
  2. E.g. See discussion in Stewart v CBC, 1997 CanLII 12318 (ONSC), per MacDonald J
  3. GDB, supra, at para 34
  4. GDB, supra, at para 34
  5. e.g. see R v Beuk, 2004 CanLII 53603 (ON SC), per Hill J, at para 40
  6. R v Samra, 1998 CanLII 7174 (ON CA), per Rosenberg JA
    R v Faulkner, 2013 ONSC 2373 (CanLII), per Code J, at paras 27, 39
  7. Samra, supra
  8. Faulkner, supra, at para 39
  9. R v Connors, 2011 NLCA 74 (CanLII), per Welsh JA, at para 11

Withdrawing as Counsel

Where there is a request to withdraw well in advance of trial. It should normally be granted without enquiring into the reasons.[1]

Counsel may reveal reasons for the request to withdraw, such as for ethical reasons, non-payment or workload, without risking breach of privilege.[2]

Courts "must accept counsel's answer" on the reasons for withdraw at "face value" and not inquire further.[3]

Withdraw for Ethical Reasons

A judge must grant any request by counsel to withdraw for ethical reasons.[4] For the grounds to be "ethical" related, it must be that it has become "impossible" for counsel to continue in "good conscience", such as a requirement that professional obligations be violated or refusal to listen to advice on an important issue..[5]

A judge may inquire into the reasons for the breakdown between client and counsel in an in camera hearing to see if there is a possibility of reconciliation.[6]

Withdraw for Lack of Payment

A judge had discretion to refuse a request to Withdraw for non-payment of fees.[7]

Factor to consider on a withdraw for failure to pay fees include:[8]

  • whether it is feasible for the accused to represent himself or herself;
  • other means of obtaining representation;
  • impact on the accused from delay in proceedings, particularly if the accused is in custody;
  • conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
  • impact on the Crown and any co‑accused;
  • impact on complainants, witnesses and jurors;
  • fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
  • the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

In all factors, the court must bconsider whether withdraw would cause "serious harm to the administration of justice".[9] The relevant harm will include that harm to other persons affected by prolonging the proceedings, including "ainants, witnesses, jurors and society at large".[10]

Whether the time booked can be used for other purposes is not a relevant factor. Cunningham, supra, at para 51 ("...whether allotted court time can be otherwise usefully filled is not a relevant consideration in this balancing of interests.")</ref>

Returning Documents in Possession of Counsel

A discharged lawyer has a common law right to exercise a lien on documents in his possession.[11] If counsel withholds materials, they must inform the crown and the court that he is doing so.[12]

  1. R v Cunningham, 2010 SCC 10 (CanLII), per Rothstein J, at para 47
  2. Cunningham, ibid., at para 48
  3. Cunningham, ibid., at para 48
  4. Cunningham, ibid., at para 49
  5. Cunningham, ibid., at para 48 ("ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.")
  6. e.g. see R v Denny, 2014 NSSC 334 (CanLII), per Rosinski J, at para 22
  7. Cunningham, supra, at paras 17, 50
  8. Cunningham, supra, at para 50
  9. Cunningham, supra, at para 50
  10. Cunningham, supra, at para 51
  11. R v Gladstone, [1972] 2 OR 127, 1971 CanLII 500 (ONCA), per McGillivary JA
    see also R v Dugan, 1994 CarswellAlta 492 (ABCA) (*no CanLII links)
  12. Dugan, ibid.

Sitting in Court and Order of Matters to be Called

The order in which matters are called is determined by the province's Barrister Act or Law Society Act.[1]

A Justice of the Peace has the authority to order that paralegals not be allowed to sit in the area reserved for Barristers.[2]

In Ontario, it is recommended that the Crown call the list rather than the judge–even where legislation suggests seniority ordering–given that the Crown will "likely has greater knowledge of it than does the judicial officer".[3]

The judicial officer has the jurisdiction to decide what method of ordering is applied, whether it is alphabetically, "first-come, first-served", or seniority of the defending counsel.[4]

Economic impact of being called later in the docket, alone, is not enough to amount to a impugne rights under s. 7 of the Charter.[5]


  1. ON: Law Society Act RSO 19909, c L.8
  2. R v Lippa, 2013 ONSC 4424 (CanLII), per Fuerst J, at paras 21 to 26
  3. Lippa, ibid., at para 36
  4. Lippa, ibid., at para 37
  5. Lippa, ibid., at para 39 (citing Siemens v Manitoba (Attorney General), [2003] 1 SCR 6, 2003 SCC 3 (CanLII), per Major J "ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7")

See Also

Other Parties

Conflicts of Interest

General Principles

The "unifying theme" of conflict of interest rules is one of "divided loyalties and duties".[1]

Purpose

The mischief addressed by the rules of conflict of interest is to prevent the disclosure of confidential information of previous related parties and to prevent counsel from putting himself in a situation where loyalty may be conflicted between present and past parties.[2]

Timing of Raising Issue

Issues of conflict of interest of trial counsel can be raised at any point including on appeal after trial. [3]

Requirements

The party alleging the conflict must demonstrate that:[4]

  1. an actual conflict of interest exists
  2. there is “some impairment of counsel’s ability to represent effectively the interests” of the accused; and
  3. the accused has been “denied the right to make full answer and defence” and “a miscarriage of justice has occurred.”

The test for a "disqualifying conflict of interest" has been alternatively stated as requiring:[5]

  1. Did the lawyer receive information attributable to a solicitor and client relationship, relevant to the matter at hand; and
  2. Is there a risk that it could be used to prejudice the client?

Where it is shown that a lawyer had previously been retained on a related matter, the onus shifts to the lawyer "to prove that no information was provided that could be relevant."[6] The test is what "would a reasonably informed member of the public be satisfied that the new retainer will not give rise to a conflict of interest".[7]

The court must consider the public interest including the public's confidence in the administration of justice. The confidence is undermined by the appearance of an unfair trial such as a cross-examination based on information obtained from prior involvement with the witness.[8]

The court must also consider the lawyer's "duty of loyalty" as well as confidentiality and privilege.[9]

The applicant does not need to establish that the verdict would have been different but for the conflict. [10]

Effect on Right to Choice of Counsel

The accused's right to counsel of choice is limited by the requirement that there be no disqualifying conflict of interest.[11] The standard require to limit the right to counsel is a high one as "a litigant should not be deprived of his or her choice of counsel without good cause".[12]

Procedure

A procedure suggested to consider conflicts goes as follows:[13]

  1. It is clear that the courts have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, in the exercise of the court’s supervisory authority over members of the bar; [14]
  2. The courts must be concerned not only with actual conflicts but also with perceived or potential conflicts that develop as a trial unfolds;
  3. The test must be such that the public, represented by the reasonably informed person, must be satisfied that no use of confidential information would occur;
  4. Litigants ought not to be lightly deprived of their chosen counsel, without good cause or for compelling reasons;
  5. A potential disqualifying conflict of interest must first be established before it can be weighed against the fundamental right to the accused’s choice of counsel;
  6. Typically, these cases require two questions to be answered:
    1. Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? and
    2. Is there a risk that it will be used to the prejudice of the client? Consideration of these two questions is case-specific.
  7. Disqualification of trial defence counsel can be disruptive, and it may require a trial be adjourned in order to allow new counsel to bring themselves “up to speed”.

The courts should balance the accused's right to counsel of choice, public policy, the interest in the administration of justice and fairness.[15]

Judicial Intervention

A judge may not direct that counsel not act on behalf of the accused unless there is a "realistic risk of a conflict of interests".[16]

The court may need to speculate on what risks may arise at trial that could cause a conflict.[17]

Consequence of Forced Withdraw

Requiring counsel to withdraw is not a disciplinary matter, it is preventative to protect the administration of justice and ensure trial fairness.[18]

Accused's Choice of Conflicted Counsel

The right to choice of counsel is not an absolute right.[19]

The accused has not right to counsel who is in conflict.[20]

Effect of Codes of Conduct

The courts are not obliged to enforce codes of conduct. The codes are only statements of public policy.[21]

Duty to Previous Clients

The main duty Counsel as to previous clients is the duty not to misuse confidential information.[22]

Examples

There was no conflict where defence counsel was present at the party where an assault occurred.[23]

  1. Paul M Perell, Conflicts of Interest in the Legal Profession (1995) at 5.
  2. R v Sandhu, 2011 BCSC 1137 (CanLII), per Fitzpatrick J
  3. R v Widdifield, 1995 CanLII 3505 (ON CA), (1995), 25 OR (3d) 161, per Doherty JA at 169
  4. R v Sherif, 2012 ABCA 35 (CanLII), per Hunt JA
  5. R v McCall, 2013 ONSC 4157 (CanLII), per Gunsolus J, at para 26
  6. McCall, supra, at para 27
  7. McCall, supra, at para 27
    Widdifield, supra
    See also MacDonald Estate, supra
  8. McCall, supra, at para 30
    R v Robillard, [1986] OJ No 261 (ONCA), 1986 CanLII 4687 (ON CA), per Lacourciere JA, at p. 5
    R v Brissett, 2005 CanLII 2716 (ON SC), [2005] OJ No 343, per Hill J, at para 39 - a lawyer should not use information obtained from a former client to cross-examine them on a future case.
  9. McCall, supra, at para 31
    MacDonald Estate, supra, at para 41
    See also R v Billy, 2009 CanLII 63957 (ON SC), [2009] OJ No 4737 (SCJ), per Pomerance J, at paras 24 to 25
  10. Sherif, supra, at para 13 (no conflict found)
  11. McCall, supra, at para 24
    R v McCallen, 1999 CanLII 3685 (ON CA), per O'Connor JA, at paras 68 to 72
    Billy, supra, at para 19
  12. MacDonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, per Sopinka J
  13. Brissett, supra
  14. Macdonald Estate v Martin, supra, at p. 1245
  15. R v Speid, 1983 CanLII 1704 (ON CA), per Dubin JA
  16. R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA, at p. 238
  17. WW, ibid.
  18. R v Cunningham, 2010 SCC 10 (CanLII), per Rothstein J, at para 35
  19. R v Cocks, 2012 BCSC 1336 (CanLII), per Silverman J, at para 10
  20. Robillard, supra, at para 10
  21. Cunningham, supra, at para 38
  22. Canadian National Railway Co. v McKercher LLP, [2013] 2 SCR 649, 2013 SCC 39 (CanLII), per McLachlin CJ (9:0)
  23. R v Karmis, 2008 ABQB 525 (CanLII), per MacLeod J

Waivers

An irrevocable waiver of a conflict of interests by the accused, after having received independent legal advice, will usually be sufficient to permit counsel to be retained.[1]

However, the existence of a conflict of interest without waiver will generally result in the disqualification of counsel.[2]

A revocable waiver can also give rise to disqualification.[3]

  1. see e.g. R v Hill, 2014 ABQB 298 (CanLII), per Wilson J
  2. Hill, supra, at para 31
    R v Leask, (1996) 1 C.R. (5th) 132 (*no CanLII links)
    R v Werkman, 1997 CanLII 14735 (AB QB), per Ritter J
  3. see Hill, supra, at para 31

Representing Co-Accused

There is a "heavy onus" on the accused to ensure that there is no conflict when representing multiple accused is a single matter.[1]

There is no fixed rule preventing a lawyer from representing multiple co-accused. [2]

When representing multiple co-accused there is always the risk of conflict.[3] The presence of this conflict may prevent counsel from exploring plea negotiations and the possibility of one counsel testifying against another, presenting evidence incriminating the co-accused, or making sentencing submissions that only mitigate for one and not the other.[4]

A co-accused's counsel may be enjoined from switching clients and representing an accused regardless of the consent of the accused.[5]

Counsel have an obligation to advise them to emphasize evidence that points to co-accused and exonerates them.[6]

  1. R v WW, 1995 CanLII 3505 (ON CA), (1995), 100 CCC (3d) 225 (Ont. C.A.), per Doherty JA
  2. WW, ibid., at p. 13
    R v Silvini, 1991 CanLII 2703 (ON CA), (1991), 68 CCC (3d) 251 (Ont. C.A.), per Lacourciere JA
  3. Silvini, ibid.
  4. Silvini, ibid.
  5. R v Quiriconi, 2011 BCSC 1737 (CanLII), per Rogers J
  6. R v Thanigasalam, [2007] OJ No 5374 (Ont. C.J.) (*no CanLII links) , at para 16

Duty of Loyalty

The duty of loyalty is the foundation of the solicitor-client relationship.[1] This duty includes the duty of confidentiality.[2]

This duty also includes the duty to avoid conflicting interests.[3] The failure to avoid conflict of interest can create prejudice for the client where counsel "'soft peddles' his representation of a client in order to serve his own interests, those of another client, or those of a third party".[4]

The duty of loyalty requires that the counsel put the client's business interests before the counsel's business interests.[5]

Counsel has a duty to "not place herself in a situation that jeopardizes her effective on-going representation of [a] client".[6] There is "no room for doubt" in clients mind as to where the lawyer's loyalty lies.[7]

Once a lawyer is retained, the client has a right to believe that silence from counsel is affirmation that there are no conflicts.[8]

Test for Breach of Duty of Loyalty

A lawyer's acceptance of a new retainer will breach the duty of loyalty of a current client where it is determined:[9]

  1. that the client's "interests are directly adverse to the immediate interests of another current client" or
  2. the lawyer does not reasonably believe he is able to represent each client without adversely affecting the other.

There will be no conflict where both clients consent to the joint representation, after receiving full disclosure and independent legal advice.[10]

This first stage is considered the "bright line" rule.[11]

  1. R v Cocks, 2012 BCSC 1336 (CanLII), per Silverman J, at para 10
  2. Cocks, ibid., at para 10
  3. R v Baharloo, 2017 ONCA 362 (CanLII), per Brown JA, at para 31
  4. Baharloo, ibid., at para 31
    Canadian National Railway Co v McKercher LLP, 2013 SCC 39 (CanLII), [2013] SCR 649 ("CNR"), per McLachlin CJ, at para 23
  5. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J, at para 24( “Loyalty includes putting the client’s business ahead of the lawyer’s business”)
  6. Canadian National Railway, supra, at para 23
  7. R v McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), per O'Connor JA, at p. 67 (“[t]here should be no room for doubt about counsel’s loyalty and dedication to the client’s case”)
    Baharloo, supra, at para 32
  8. Baharloo, supra, at para 32
    Strother v 3464920 Canada Inc., 2007 SCC 24 (CanLII), [2007] SCR 177, per Binnie J, at para 55
  9. Neil, supra Baharloo, supra, at para 34
  10. Baharloo, supra, at para 34
  11. Neil, supra, at para 29

Duty of Confidentiality

Every lawyer has a duty of confidentiality to his client. This duty extends beyond the duration of the legal relationship.[1]

Any lawyer who has obtained confidential information from a client can never act against that client.[2]

A lawyer may act against a former client where "a reasonable member of the public who is in possession of the facts would conclude that no unauthorized disclosure of confidential information has occurred or would occur."[3]

The rule intends to balance the three factors of:[4]

  1. the need to maintain the high standards of the legal profession and the integrity of the justice system;
  2. the right of litigants not to be deprived of their choice of counsel without good cause; and,
  3. permitting reasonable mobility in the legal profession.

Courts should discourage the use of these conflict rules from being used as a weapon or tactic to obstruct proceedings.[5] As such the mischief must be real and not speculative.[6]

Where the conflicted lawyer moves to a different firm, the other lawyers in the new firm are not necessarily conflicted as well. There will only be a conflict if:[7]

  1. the lawyer at the new firm received confidential information attributable to the solicitor-client relationship
  2. is there a risk that the confidential information could be used to prejudice the client

There is a "strong inference" that lawyers working together will share confidential information about clients.[8] This inference is rebutted by "clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur by the ‘tainted lawyer’ to the member or members of the firm who are engaged against the former client."[9]

  1. Canadian National Railway v McKercher, 2013 SCC 39 (CanLII), per McLachlin CJ, at para 23
  2. R v Imperial Tobacco Canada Limited, 2013 BCSC 1963 (CanLII), per N Smith J, at para 22 Macdonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, per Sopinka J, at p. 1261 ("No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out has been gleaned from the client and what was acquired elsewhere.")
  3. Martin, supra, at p. 1263
  4. Martin, supra
    Imperial, supra, at para 25
  5. Imperial, supra, at para 27
  6. Imperial, supra, at para 28
  7. Martin, supra, at p. 1260
    McKercher, supra, at para 24
  8. Imperial, supra, at para 24
    Martin, supra
  9. Martin, supra

See Also

Counsel Appearing by Telepresence

General Principles

See also: Remote Attendance in Court

Depending on what venue and what stage of proceedings a criminal matter is in, counsel for the Crown or defence may be able to appear by tele-presence through video or audio link.

Under Part XX concerning jury trials:

Remote appearance

650.02 The prosecutor or the counsel designated under section 650.01 [designation of counsel] may appear before the court by audioconference or videoconference, if the technological means is satisfactory to the court.

2002, c. 13, s. 61; 2019, c. 25, s. 275.
[annotation(s) added]

CCC

See Also

Role of Law Enforcement

General Principles

See also: Peace Officers
Duty to Investigate

Police have a duty, on behalf of the public interest, to investigate alleged crimes, which includes making inquiries from relevant sources of information, including the accused.[1] While they have a duty to investigate and enforce the law, there is residual discretion on when to engage the judicial process.

Not Agents of Government

Law enforcement is not the agent or servant of the government that employs them. Rather they are servants to the public interest or Crown.[2]

Tort Liability

At common law, an officer is liable for their own conduct under law.[3] However, liability of officers acting in the execution of their duties is governed under federal and provincial legislation.[4]

Peace officers can be liable for harm inflicted upon prisoners held in their custody.[5]

Trickery

Law enforcement should expect to deal with often "sophisticated criminal" and so should not be expected to be governed by "the Marquess of Queensbury rules". [6]

The police are expected to sometimes resort to "tricks or other forms of deceit" when engaged in the investigation of crime.[7]

Unless the police engage in "dirty tricks", courts should not be engaging in determining "good taste or preferred methods of investigation".[8]

Officers have duty to protect those in custody. They may even be held liable if the detainee is assaulted by others and nothing is done to prevent the assault.[9]

Undercover operations

The use of "reverse sting" operations was found illegal.[10] "Mr Big" operations are permitted, however, the evidence collected is presumptively inadmissible unless proven otherwise.[11]

  1. R v Sinclair, [2010] 2 SCR 310, 2010 SCC 35 (CanLII), per McLachlin CJ and Charron J, at para 63
  2. McCleave v City of Moncton, 32 SCR 106, 1902 CanLII 73 (SCC), per Strong CJ
    New South Wales v Perpetual Trustee Co, [1955] AC 457 (PC)
  3. Bainbridge v Postmaster General, [1906] 1 KB 178 (Eng CA)
  4. CAN: Crown Liability Act, s. 3
    ON: Police Services Act, s. 50(1)
    QC: Police Act
    BC: Police Act, s. 21
  5. R v Nixon (1990), 57 CCC (3d) 97 (CA) leave refused 60 CCC (3d) vi(complete citation pending)
  6. R v Rothman, [1981] 1 SCR 640, 1981 CanLII 23 (SCC), per Lamer J ("It must... be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit, and should not through the rule be hampered in their work.")
  7. Rothman, ibid.
  8. R v Skinner, 1992 CanLII 4015 (MB QB), per Scollin J, at p. 14 ("Absent "dirty tricks", the courts should not set themselves up as the arbiters of good taste or of the preferred methods of investigation. It is unrealistic to demand chivalry from those who must investigate what are often heinous offences against blameless victims. ...the courts should not be so indulgent as to preserve the accused from himself and his own untrammelled tongue")
    R v Roberts, 1997 CanLII 3313 (BC CA), per Hall JA, at para 14
    R v Bonisteel, 2008 BCCA 344 (CanLII), per Levine J, at para 89
    R v Figliola, 2012 ONSC 4560 (CanLII), per Whitten J, at para 95
  9. R v Nixon (1990), 57 CCC (3d) 97 (CA)(*no CanLII links) (link pending)
  10. R v Campbell, [1999] 1 SCR 565, 1999 CanLII 676 (SCC)
  11. see Confessions from Mr Big Operations

Police Powers

See also: Ancillary Powers Doctrine

Police are empowered by common law and statutory powers to execute their duties.

Common Law Powers

Police have a number of powers vested by the common law that are related to their duties.[1]

Statutory Powers

Various provincial legislation empowers police to detain, arrest, search and seize. This includes:

  • Liquor and Cannabis Control legislation[2]
  • Motor Vehicle legislation
  • Mental Health legislation[3]
  • Protection of Property legislation[4]
Topics

Authority by Police Type

See also: Peace Officers

The Royal Canadian Mounted Police (RCMP) is the national police force.[5] They are peace officers for all jurisidctions in Canada.[6]

RCMP peace officers have "primary investigative jurisdiction concerning crimes committed in relation to national security or designated protected persons or designated protected sites".[7]

  1. See Ancillary Powers Doctrine
  2. NS: Liquor Control Act, [2]
    ON: Liquor Licence Act
  3. ON: Mental Health Act
    NS: Involuntary Psychiatric Treatment Act
  4. ON: Trespass to Property Act
  5. Royal Canadian Mounted Police Act (RCMPA), R.S.C., 1985, c. R-10, s. 3
  6. s. 3 and 11.1 RCMPA
  7. R v Seguin, 2016 ONCJ 441 (CanLII), per Letourneau J, at para 50
    Security Offences Act, RSC 1985, c S-7 at s. 2 and 6

Note Taking

Duty to Make Contemporaneous Notes

The taking of notes during the course of an investigation is not simply as an aide memoire. They have an obligation to make notes.[1]

It is important for the judicial fact finding process that significant facts be recorded and not left to the "whim of memory".[2]

Consequence of Not Making Notes

Where police fail to take contemporaneous notes, their testimony may be considered unreliable and may not be admitted.[3]

Intentional failure to make notes may have negative consequences if it associated with a Charter breach.[4] However, there is no known principle that says that incomplete notes, by themselves, amounts to a breach of an accused right to full answer and defence under s. 7 adn 11(d) of the Charter.[5]

Police should not be seen to thwart the objectives of Stinchcombe by making less accurate notes.[6]

Special Cases For Notes

There are additional constitutional obligations on peace officers to make detailed notes when engaged in the following:

  1. Wood v. Schaeffer, 2013 SCC 71 (CanLII), per Moldaver J, at para 67 ("...police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation")
  2. R v Lozanovski, 2005 ONCJ 112 (CanLII), per Feldman J, at para 14 ("It is important to the proper functioning of the judicial fact-finding role that significant facts be recorded by police and not left to the whim of memory.")
  3. R v Tweedly, 2013 BCSC 910 (CanLII), per Greyell J, at para 160 ("it is important to recall it has been held innumerable times in our courts that police testimony, without the advantage of contemporaneous notes, is unreliable and often not admitted into evidence for that purpose.")
    R v Zack, [1999] OJ No 5747 (Ont. C.J.), at para 6 ("In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw")
  4. R v Vu, [2013] 3 SCR 657, 2013 SCC 60 (CanLII), per Cromwell J, at para 70 - Officer intentionally avoided taking notes
  5. R v Bailey, 2005 ABCA 61 (CanLII), per Hunt JA, at para 43 to 44
  6. R v Eagle, [1996] OJ No 2867 (Ont. C.J.)(*no CanLII links) referencing the "Martin Report" ("The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less comprehensive notes.")
    R v Satkunananthan, 2001 CanLII 24061 (ON CA), per curiam, at para 78

Special Authorizations

See also: Acting in Authority

See Also

Other Parties

Accused in Court

General Principles

Generally, an accused is expected to be present during the proceedings against him. He must be present for his trial, but may have representation appear on his behalf for non-trial matters.[1]

Appearance of the accused

502.1 (1) Except as otherwise provided in this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], an accused who is required to appear in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] shall appear personally but may appear by audioconference or videoconference, if arrangements are made with the court in advance and those arrangements are satisfactory to the justice.

Witness in Canada

(2) Despite section 714.1 [audioconference and videoconference – witness in Canada], a witness in Canada who is required to give evidence in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] may do so by audioconference or videoconference, if it is satisfactory to the justice.

Witness outside Canada

(3) For greater certainty, sections 714.2 to 714.8 [video and audio evidence] apply when a witness outside Canada gives evidence in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)].

Participants

(4) A participant, as defined in subsection 715.25(1) [definition of participant], who is to participate in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] shall participate personally but may participate by audioconference or videoconference, if it is satisfactory to the justice.

Justice

(5) The justice who is to preside at a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] shall preside personally but may preside by audioconference or videoconference, if the justice considers it necessary in the circumstances.
2019, c. 25, s. 216.
[annotation(s) added]

CCC

This provision came into force on December 18, 2019.

  1. s. 650(1) requires attendance at trial
    s. 650.01 allows counsel to appear on accused behalf for non-trial matters

Accused and Offender Defined

See also: Criminal Code and Related Definitions

2.
...
“offender” means a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt;
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC

Definitions

493. In this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)],
...
“accused” includes

(a) a person to whom a peace officer has issued an appearance notice under section 497 [appearance notice by peace officer], and
(b) a person arrested for a criminal offence;

...
2019, c. 25, s. 209.
[annotation(s) added]

CCC

Definitions

672.1 (1) In this Part [Pt. XX.1 – Mental Disorder (s. 672.1 to 672.95)],
...
“accused” includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered;
...

CCC

Definitions

716. In this Part [Pt. XXIII – Sentencing (s. 716 to 751.1)],
...
“accused” includes a defendant;
...
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).
[annotation(s) added]

CCC


Right to Representation

See also: Representation at Trial

A judge must make adequate inquiries into whether the accused wants to be represented by counsel.[1] He should be "thorough" in his explanation of the importance of exercising the right.[2] Failure to do so may infringe the accused's Charter rights under s. 7.[3]

  1. R v Boone, 2003 MBQB 292 (CanLII), per Darichuk J, at para 15
    R v Hardy, 1990 CanLII 5615 (AB QB), (1990), 62 CCC (3d) 28 (Alta. Q.B.), per Mcdonald J
  2. Boone, supra, at para 16
    R v H(BC), (1990), 58 CCC (3d) 16, 1990 CanLII 10964 (MB CA), per Twaddle JA, at 22
  3. Boone, supra, at #par15 para 15
    see also Hardy, supra

Accused's Presence at Court Other Than For Trial

Section 650 protects the "fundamental right" to be present at trial.[1]

On a summary conviction matter, the accused may appear in person or by counsel or agent.[2]

Section 650 states:

Accused to be present

650 (1) Subject to subsections (1.1) to (2) [various exceptions to requirement of accused being personally present] and section 650.01 [designation of counsel], an accused, other than an organization, shall be present in court during the whole of his or her trial.

Video links

(1.1) Where the court so orders, and where the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken.

Video links

(1.1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken.

Video links

(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel.

Exceptions

(2) The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;
(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or
(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.
To make defence

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.

R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12; 2019, c. 25, s. 274.
[annotation(s) added]

CCC

  1. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA (3:0), at para 9 ("...the right of the accused to be present at trial is a fundamental right protected by s. 650 of the Criminal Code, R.S.C. 1985, c. C-46.")
  2. s. 800(2)

Video-link Appearance

See also: Remote Attendance in Court

800.
...

Video links

(2.1) If the summary conviction court so orders and the defendant agrees, the defendant who is confined in prison may appear by closed-circuit television or videoconference, as long as the defendant is given the opportunity to communicate privately with counsel if they are represented by counsel.
...
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317.

CCC

Condition for remote appearance

848. Despite anything in this Act, if an accused who is in prison does not have access to legal advice during the proceedings, the court shall, before permitting the accused to appear by a means of communication that allows the court and the accused to engage in simultaneous visual and oral communication, be satisfied that the accused will be able to understand the proceedings and that any decisions made by the accused during the proceedings will be voluntary.
2002, c. 13, s. 84.

[Repealed 2019, c. 25, s. 329 on September 19, 2019]

CCC

See also: Procuring the Attendance of a Prisoner

Accused's Presence at Trial

Under s. 650(1) (indictable matters) and 800(2) (summary matters), the accused must be present for the whole of their trial.

The meaning of "trial" is broad and can refer to any proceedings that form part of the "trial process for determining the guilt or innocence of the accused" as well as penalty.[1]The key factor is whether the proceedings involved the accused's "vital interests."[2]

In-chambers discussions without the accused on certain issues of jury selection is preliminary in nature and so does not engage the accused's "vital interests".[3]

Under s.650(1.1) and (1.2), the court may order that the accused appear by way of video link where all the parties agree. This can include parts of the trial where evidence is not being taken so long as there is a means to have defence counsel consult with their client.

The court may exclude the accused from their trial under s.650(2) for three situations: 1) where the accused "misconducts himself by interrupting the proceedings" so much so that it would be infeasible to continue; 2) where the court finds it "proper"; or 3) where the accused's presence may have an adverse effect on the accused's mental health on a hearing for fitness.

The judge may not interview jurors outside of the presence of the accused.[4]

Discussions between the judge and prospective jurors are part of trial and must be in presence of accused.[5]

As a general practice, any communications between prospective jurors and the judge should be recorded. Any reasons for excluding a prospective juror should also be on the record.[6]

Discussion in chambers regarding the credibility of witnesses by the trial judge in absence of accused can violate s. 650(1) right to be present.[7]

The judge talking with the jury constables and reporter after trial when she heard that members of the jury were pressured in their verdict.[8]

Includes Voir Dires

Any voir dire is considered part of the trial and therefore is subject to the requirements of s. 650 the same the actual trial.[9]

Remedy

Where there is a part of the trial without the presence of the accused as a procedural irregularity, it may be cured under s. 686(1)(b)(iv), particularly where there is no prejudice or unfairness against the accused.[10]

  1. R v Sinclair, 2013 ONCA 64 (CanLII), per Rouleau JA, at para 15 : cites many examples
  2. Sinclair, ibid., at para 15
    R v Vezina; R v Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2, per Lamer J
  3. Sinclair, supra, at para 17 (discussions occurred without accused present, however, discussions were summarized to accused in court and only finalized in accused presence.)
    R v Dunbar, (1982), 68 CCC (2d) 13, 1982 CanLII 3324 (ON CA), per Martin JA
  4. Vezina, supra
    R v Fenton, 1984 CanLII 633 (BC CA), (1984), 11 CCC (3d) 109, per Taggart JA
  5. Sinclair, supra
  6. Sinclair, supra
  7. R v James, 2009 ONCA 366 (CanLII), per Rosenberg JA
  8. R v Phillips, 2008 ONCA 726 (CanLII), per MacPherson JA
  9. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA (3:0), at para 9 ("... a voir dire is part of the trial. For the purposes of s. 650 of the Code, there is no distinction between receiving evidence on a voir dire and receiving evidence at the trial proper. Mr. Edwardsen had the same right to be present for the evidence led on the voir dire as he had for any part of the trial.")
  10. Sinclair, supra

Right to Face Accusers

The "right to face one's accusers is not in this day and age to be taken in the literal sense...it is simply the right of an accused to be present in court, to hear the case against him and to make answer and defence to it."[1]

This is a qualified right and can be limited by the availability of witness screens, closed-circuit video testimony, video link testimony, and other statutory and common law protections of witnesses.

  1. R v R(ME) (1989), 49 CCC (3d) 475 (NSCA), 1989 CanLII 7212 (NS CA), per Macdonald JA
    R v JZS, 2008 BCCA 401 (CanLII), per D Smith J, at para 34

Use of Restraints in Court

There is a presumption that the accused should not be in restraints while in court.[1] The crown Bears the burden to establish that the use of restraint is reasonable.[2]

  1. R v McNeill, 1996 CanLII 812 (ON CA), per Morden ACJ
  2. R v Wills, 2006 CanLII 31909 (ON SC), [2006] OJ No 3662 (S.C.J.), per Fuerst J, at para 45

Sitting Position of Accused

Accused Absconding

Where the accused is required to attend an appearance for a summary offence and does not, the court may issue a warrant for their arrest.[1]

From Preliminary Inquiry or Trial

Accused absconding during trial

475 (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,

(a) he shall be deemed to have waived his right to be present at his trial, and
(b) the court may
(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or
(ii) if a warrant in Form 7 [forms] is issued for the arrest of the accused, adjourn the trial to await his appearance,

but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.

Adverse inference

(2) Where a court continues a trial pursuant to subsection (1) [accused absconding during trial], it may draw an inference adverse to the accused from the fact that he has absconded.

Accused not entitled to re-opening

(3) Where an accused reappears at his trial that is continuing pursuant to subsection (1) [accused absconding during trial], he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the court is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the proceedings.

Counsel for accused may continue to act

(4) Where an accused has absconded during the course of his trial and the court continues the trial, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.
R.S., 1985, c. C-46, s. 475; R.S., 1985, c. 27 (1st Supp.), s. 185(F), c. 1 (4th Supp.), s. 18(F).
[annotation(s) added]

CCC

For the purpose of s. 475, "abscond" refers to the avoidance of trial "for the purpose of impeding or frustrating" the trial. Merely failure to attend is not enough.[2]

Section 475 does not violate section 7[3] or section 11(d) right to a fair trial.[4]

Merely failing to attend for a trial continuation and the withdraw of defence counsel does not permit a finding that the accused "absconded" within the meaning of s. 475.[5]

Absconding Accused
Accused absconding during inquiry

544 (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged,

(a) he shall be deemed to have waived his right to be present at the inquiry, and
(b) the justice
(i) may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548 [order to stand trial or discharge, process and consequences], or
(ii) if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.

Adverse inference

(2) Where the justice continues a preliminary inquiry pursuant to subsection (1) [consequence of accused absconding preliminary inquiry], he may draw an inference adverse to the accused from the fact that he has absconded.

Accused not entitled to re-opening

(3) Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1) [consequence of accused absconding preliminary inquiry], he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.

Counsel for accused may continue to act

(4) Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.

Accused calling witnesses

(5) If, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued under subsection (1) [consequence of accused absconding preliminary inquiry], the accused is absent but their counsel is present, the counsel shall be given an opportunity to call witnesses on behalf of the accused, subject to subsection 537(1.01) [power limit issues and witnesses], and subsection 541(5) [depositions of inquiry witnesses] applies with any modifications that the circumstances require.

R.S., 1985, c. C-46, s. 544; 1994, c. 44, s. 55; 2019, c. 25, s. 246.
[annotation(s) added]

CCC

  1. s. 800(2)
  2. R v Taylor, 2010 BCCA 58 (CanLII), per Levine JA
  3. Regina v Czuczman, 1986 CanLII 2714 (ON CA), per Brooke JA
  4. R v Tzimopoulos, 1986 CanLII 152 (ON CA), per curiam
  5. Taylor, supra

Deceased Accused

Generally, a prosecution will terminate by the Court declaring the matter "abated" where the accused dies regardless of the stage of proceedings.[1]

There are is some exception permitted for pending appellate matters.[2]

The Court of Appeal maintains jurisdiction over an appeal where the accused has died. It is in their discretion to either declare the appeal "abated" or considering it on its merits.[3] Discretion should be exercised where the court is satisfied that:[4]

  1. there are serious grounds of appeal and the verdict being appealed carries significant consequences for the party seeking to continue the appeal; or
  2. for any reason where it is in the interests of justice to do so.

The "interests of justice" component will be the predominant consideration and should subsume the other elements.[5]

The "interests of justice" test requires consideration of "all relevant circumstances".[6]

The "overwhelming number" of appeals where the accused dies should result in abatement.[7]

"Scarce judicial resources" should rarely be a "disqualifying consideration".[8]

Fresh evidence leading to factual innocence may be sufficient to be in the interests of justice.[9]

Factors

The court should consider to varying degrees the following non-exhaustive list of factors:[10]

  1. whether the appeal will proceed in a proper adversarial context;
  2. the strength of the grounds of the appeal;
  3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
    1. a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
    2. a systemic issue related to the administration of justice;
    3. collateral consequences to the family of the deceased or to other interested persons or to the public;
  4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
  5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
  1. R v Ssenyonga, [1993] O.J. No. 3273 (Ont. Ct. (Gen. Div.)), 1993 CanLII 14680 (ON SC), per McDermid J
    R v Neufeldt, 2005 ABPC 163 (CanLII), per Norheim J
    R v Douglas, 2004 BCPC 279 (CanLII), per Lenaghan J
  2. R v MacLellan, 2019 NSCA 2 (CanLII), per Beveridge JA (2:1)
    R v Jetté (1999), 141 CCC (3d) 52; [1999] J.Q. No 4641, 1999 CanLII 13411 (QC CA), per Fish JA (3:0) - first case to find discretion to continue
    R v Smith, [2004] 1 SCR 385, 2004 SCC 14 (CanLII), per Binnie J (7:0)
    cf. R v Netter, [1975] BCJ No. 1191 (C.A.)(*no CanLII links)
    Collins v The Queen, [1973] 3 O.R. 672 (C.A.), 1973 CanLII 655 (ON CA), per curiam
    Cadeddu v The Queen (1983), 41 O.R. (2d) 481 (C.A.), 3 C.C.C. (3d) 112 (Ont. C.A.), 1983 CanLII 1763 (ON CA), per curiam
    R v Hay, [1994] O.J. No. 2598 (C.A.)(*no CanLII links)
    R v Lewis (1997), 153 D.L.R. (4th) 184 (B.C.C.A.), 1997 CanLII 3584 (BC CA)
  3. Jette, supra, at para 59 Cadeddu, supra, at pp. 118-119
  4. Jette, supra, at para 60
  5. Smith, supra, at paras 41 and 42
  6. Smith, supra, at para 46
  7. Smith, supra, at para 46
    Cadeddu, supra, at p. 114
  8. Smith, supra, at para 47
  9. e.g. see Jette, supra
  10. Smith, supra, at para 51

Organizations as Accused

An accused who is an organization must appear by counsel or agent.[1] Failure of counsel or agent to attend permits the court to order an ex parte trial.[2]

  1. s. 800(3)
  2. S. 800(3)

See Also

Other Parties

Sitting Position of the Accused at Trial

General Principles

See also: Accused in Court

The Criminal Code is silent on the issue of the sitting position of the accused. It is understood at common law that the sitting arrangement of the accused in the court is in the sole discretion of the trial judge.[1]

Custom dictates that the accused is to be placed in the dock.[2] This expectation does not violate the accused’s Charter rights.[3]

Visibility of Accused

The trier of fact should be able to see the accused during the trial.[4] This interest may prevent the accused from requesting a seat at counsel table to give instructions.[5]

Two Lines of Authority

The primary line of cases suggests that the accused should be placed in the dock unless the accused can establish "sound reason" to allow the accused to sit at counsel table.[6] It has further been suggested that the presumption should prevail unless "a miscarriage of justice has been established."[7]

The second line of cases suggests that the accused should be permitted to sit outside the dock "unless security considerations...[are] demonstrated to be necessary, or at least advisable, to ensure the safety of all involved."[8]

When considering the sitting position the court should take into account the fairness of differential treatment between a person in custody and those released from custody.[9]

Constitutionality

The requirement to sit in the "prisoner's" dock does not violate the accused's charter rights, including the right to the presumption of innocence.[10]

  1. R v Levogiannis, 1993 CanLII 47, [1993] 4 SCR 475, per L'Heureux‑Dubé J, at para 53
    R v Lalande, 1999 CanLII 2388 (ON CA), [1999] OJ No 3267, per Borins JA, at para 19("Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security")
    R v Rafferty, 2012 ONSC 1009 (CanLII), per Heeney J, at para 3
  2. R v Ahmad et al., 2010 ONSC 1777 (CanLII), per Dawson J, at para 4
    R v Gervais, 2001 CanLII 28428 (ON SC), per Campbell J
  3. Gervais, ibid., at para 8
  4. R v Sinclair, 2010 ONSC 7253 (CanLII), per O’Marra J
    Rafferty, supra, at para 13
  5. R v McCarthy, 2012 CanLII 10661 (NL SCTD), per Goodridge J [refused request to sit at counsel table]
  6. Gervais, supra
    Ahmad, supra, at para 4
    R v Vickerson, 2006 CanLII 2409 (ON SC), per DiTomaso J, at para 18
  7. see R v Grandinetti, 2003 ABCA 307 (CanLII), (2003) 178 CCC (3d) 449 (Alta. C.A.), per per McFadyen JA, at para 84
    R v Badhwar, 2009 CanLII 23890 (ON SC), per McIsaac J
  8. Ahmad, supra, at para 5
    R v Smith, 2007 CanLII 24094 (ON SC), [2007] OJ No 2579 (S.C.J.), per Trafford J
    R v Ramanathan, 2009 CanLII 86223 (ON SC), [2009] OJ No 6233 (ON SC), per Corbett J
  9. Ahmad, supra, at para 7
    Gervais, supra, at para 16
  10. Gervais, supra, at para 8
    Vickerson, supra, at para 15 - no violation of presumption of innocence
    Sinclair, supra
    R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 13

Accused in Custody

An accused is custody should remain in the dock unless there are "exceptional circumstances", such as "the length of the trial and the defendant's necessities, such as note taking".[1]

While generally not considered prejudicial, in certain cases, trial fairness should warrant a jury instruction to not draw any inference from the accused's presence in the "prisoner's" dock or the presence of sheriffs flanking the accused.[2]

  1. R v Minoose, 2010 ONSC 6129 (CanLII), per Kane J, at para 32
  2. R v Spagnoli and Shore, 2011 ONSC 4656 (CanLII), per Hambly J, at para 7
    Minoose, supra, at para 33
    Rafferty, supra, at para 11

Sitting with Counsel

Recommendations from the Morin Inquiry suggested that the accused be permitted to sit with counsel absent risk of danger.[1]

The sitting location of the accused is entirely in the discretion of the trial judge.[2] This discretion should not be interfered with unless it affects the right to full answer and defence.[3]

Need to Consult with Counsel

The importance of the accused to be able to consult with counsel is not an important factor where the court may have a recess for the purpose of consultation.[4]

Weapons

There should be consideration of the risks involved with the accused bringing weapons and potentially attacking persons in court.[5]

Burden

The onus is on the accused to establish that he should be permitted to sit at counsel table.[6]

Factors

Factors have been suggested to determine whether to grant the request:[7]

  • the defendant's rights to a fair trial, to make full answer and defence, including the right to instruct counsel and courtroom security;
  • whether the defendant is in custody
  • whether there are security risks in sitting with counsel; and
  • whether visibility by the jury is affected

Security concerns such as the safety of having the accused flanked by Sheriffs at counsel table as opposed to the dock. [8]

The court can consider the likelihood that constant communication between counsel and accused may distract the jury.[9]

Where it is not practical to consider counsel table for seating of accused, it can be a compromise to set-up a table in between the dock and defence counsel table.[10]

  1. see referenced in R v MT, 2009 CanLII 43426 (ON SC), per Nordheimer J
  2. R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 4
  3. JA, ibid., at para 4
    R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per L'Heureux‑Dubé J, at para 34
    R v Faid (1981), 1981 ABCA 139 (CanLII), 61 CCC (2d) 28 (Alta. C.A.), per Harradence JA, at p. 40
  4. R v Arsoniadis, 2007 CanLII 13505 (ON SC), per Sproat J
  5. e.g. R v Lehoux, 1997 CanLII 14559 (BC CA), per Donald JA - accused obsessed with family court result attacks lawyer with weapon
  6. R v Davis, 2011 ONSC 5567 (CanLII), per van Rensburg J, at para 11
  7. Minoose, supra, at para 32
    see also R v GC, 2013 ONSC 2904 (CanLII), per O'Marra J
  8. e.g. Rafferty, supra
  9. Arsoniadis, supra, at para 11
    R v McCarthy, 2012 CanLII 10661 (NL SCTD), per Goodridge J, at para 6
  10. e.g. R v Turner, 2000 CanLII 28390 (NL SCTD), [2000] N.J. No. 379, per Dymond J

Court Appointed Counsel

General Principles

See also: Representation at Trial

State-funded Counsel ("Rowbotham" applications)

There is no constitutional right to state-funded trial counsel.[1] However, the right to a fair trial under s. 7 and 11(d) of the Charter enables the accused to apply for state-funded counsel in certain circumstances.[2]

Burden

The onus is upon the accused seeking counsel to establish their impecuniosity and that representation by counsel is necessary to ensure a fair trial.[3]

Requirements for State-funded Counsel

The central issue is "whether the accused can receive a fair trial".[4]

In order for the court to grant an order requiring the attorney general to pay for counsel of an accused, the applicant must prove on a balance of probabilities:[5]

  1. that he is ineligible for, or has been refused Legal Aid and has exhausted all available appeals;
  2. that he is indigent and has no other means to retain counsel; and,
  3. that counsel is essential to his right to a fair trial.

The third requirement for trial fairness includes the "concept of the ability to make full answer and defence and the appearance of trial fairness."[6]

Appointment of counsel should not limited to "exceptional cases".[7]

Conduct of Accused as a Factor

The right to counsel requires that the accused be "acting in good faith", sincerely wanting legal representation and has been diligent in attempting to retain counsel. It should not be used a tool of delay.[8] Whether the accused acted in good faith or attempted delay proceedings is a finding of fact and given considerable deference.[9]

An accused is the "author of his own misfortune" where he has "forfeited his right to counsel" by his own conduct.[10]

The safeguards for the represented or self-represented accused "cannot be allowed to give rise to a right ...to disrupt the orderly process of a trial."[11]

Reasons for Rejection by Legal Aid

When a person is rejected by legal aid, the court is not to do a review of the reasons for doing so. It largely does not matter why legal aid was refused.[12]

However, refusal for something the accused "has done or failed to do" is important. The applicant must establish that rejection was not due to their non-cooperation or honesty with legal aid in getting qualified.[13]

Financial Means

The case law suggests the applicant must demonstrate financial evidence that details:[14]

  1. extraordinary financial circumstances;
  2. attempts to obtain funds to retain counsel;
  3. prudence with expenses and prioritization of payment of his legal fees;
  4. efforts to save for the cost of counsel and to raise funds by earning additional income;
  5. he has made all reasonable effort to use his assets to raise funds, for example by obtaining loans;
  6. whether he is in a position to pay some of the costs of counsel;
  7. the income and assets of his spouse and family.

It is not unusual for funding to be denied where the applicant was employed or had assets that could be sold.[15]

A lack of financial prudence may disentitle the accused from funding.[16]

Fair Trial

The right to fair trial may be affected where the case is complex.[17]

Those offences that are less serious as they attract lesser penalties will more likely be compelled to proceed to trial unrepresented.[18]

Limited Retainer

It is possible for the court to order a limited retainer for only part of a trial to prevent an unfair trial.[19]

Stay of Proceedings

The court has a limited authority to grant a conditional stay of proceedings where the accused cannot afford counsel and so cannot receive a fair trial without counsel.[20]

Where a provincial court is faced with a person who cannot have a fair trial without representation, it cannot order the province to fund his defence. Rather the only remedy available to the provincial court is a conditional stay of proceedings.[21]

  1. R v Ewing, (1973), 18 CCC (2d) 356 (BCCA)(*no CanLII links)
    R v Rowbotham et al. 1988 CanLII 147 (ON CA), (1988), 25 O.A.C. 321; 41 CCC (3d) 1(CA){{TheCourtONCA}
    R v Rockwood, 1989 CanLII 197 (NS CA), (1989), 91 N.S.R. (2d) 305 (CA), per Chipman JA
  2. R v Dow, 2009 MBCA 101 (CanLII), per Steel JA, at para 25
    R v Lichtenwald, 2017 SKQB 94 (CanLII), per Gabrielson J, at para 5
  3. See R v Baker, 2012 MBCA 76 (CanLII), per Hamilton JA
    Lichtenwald, supra, at para 9
  4. R v Drury (L.W.) et al., 2000 MBCA 100 (CanLII), per Huband JA, at para 23
    Dow, supra, at para 26
  5. R v Imona-Russel, 2019 ONCA 252 (CanLII), per Lauwers JA, at para 38
    R v Tang, 2015 ONCA 470 (CanLII), per curiam, leave to appeal refused, 2016 CarswellOnt 5402 and 5403, at para 9 R v Baksh, 2013 ONCJ 57 (CanLII), per McArthur J, at para 4
    See R v Rowbotham, 1988 CanLII 147 (ON CA), [1988] OJ No 271 (Ont. C.A.), per curiam
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279, per Gordon J, at paras 5 to 7
  6. Imona-Russel, supra, at para 39
    R v Rushlow, 2009 ONCA 461 (CanLII), 96 O.R. (3d) 302, per Rosenberg JA, at para 39 ("The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness.")
  7. Rushlow, supra, at paras 19 to 21
    Dow, supra, at para 28
  8. Dow, supra, at para 16
  9. Dow, supra, at para 21
  10. Dow, supra, at para 17
    R v Bitternose, 2009 SKCA 54 (CanLII), per Wilkinson JA, at para 29
  11. R v Howell, 1995 CanLII 4282 (NS CA), (1995), 146 N.S.R. (2d) 1 (C.A.), per Chipman JA, aff'd at 1996 CanLII 145 (SCC), [1996] 3 SCR 604, per Sopkina J, at para 55 [T]he many safeguards built into the criminal justice system for an accused, particularly an unrepresented one, cannot be allowed to give rise to a right in an accused person to disrupt the orderly process of a trial"
  12. Dow, supra, at para 23
    R v Peterman, 2004 CanLII 39041 (ONCA), per Rosenberg JA, at para 22 ("when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial")
  13. R v Plange, 2017 ONSC 134 (CanLII), per O'Marra J, at para 8
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279 (ON SC), per Gordon J, at para 34
  14. R v Malik, 2003 BCSC 1439 (CanLII), per Stromberg-Stein J, at para 23 R v Rushlow, 2009 ONCA 461 (CanLII), 66 C.R. (6th) 245, per Rosenberg JA, at para 20
  15. e.g. R v Darby, 2001 BCSC 1868 (CanLII), per Grist J
  16. R v Crichton, 2013 BCSC 416 (CanLII), per Bracken J, at para 41
  17. R v Moodie, 2016 ONSC 3469 (CanLII), per Nordheimer J - Stay granted on drug trafficking trial with complex issues including severance, co-conspirator's exception, possible challenge for cause.
    R v Rushlow, 2009 ONCA 461 (CanLII), per Rosenberg JA, at para 24
  18. Moodie, supra, at para 8
    Rushlow, supra
  19. Dow, supra, at paras 32 to 37
  20. R v Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 CCC (3d) 1 (Ont. C.A.), per curiam
  21. e.g. R v Dobson, 2016 NBCA 18 (CanLII), per curiam

Cross-Examination

A self-represented accused will not be permitted to cross-examine a witness in a number of situations, including trials with witnesses under 18, trials for criminal harassment, or otherwise where requested. In such cases, the court may appoint counsel to conduct the cross-examination.

For details see Cross-Examinations#Cross-Examination by Self-Represented Accused

Appeals

See also: Appeals to the Supreme Court of Canada#Legal Assistance for Appeals
Legal assistance for appellant

684. (1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

Counsel fees and disbursements

(2) Where counsel is assigned pursuant to subsection (1) [x] and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

Taxation of fees and disbursements

(3) Where subsection (2) [x] applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements.
R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9.
[annotation(s) added]

CCC

In order for the court to appoint counsel in preparation of an appeal under s. 694, the accused must establish that it is in the "interests of justice". This requires that he show:[1]

  1. the appeal has merit[2] and at least is arguable;[3]
  2. the appellant cannot properly present the issue without counsel; or
  3. the court may not be able to decide the appeal without counsel.
Arguable Issue

An "arguable issue" requires there to be sufficient substance to the ground of appeal that the panel is capable of being convinced to allow the appeal.[4] This assessment must be mindful that there is not a complete record before the chambers justice and that the petitioner may have difficulty in identifying the potential errors.[5]

Complexity

On the second branch of the test, the court must assess the appellant's ability to understand the applicable principles and marshal the arguments.[6]

Consideration should include the appellant's ability to read and write, understand principles, relate principles to the facts, and articulate themselves.[7]

  1. R v Forrest, 2019 NSCA 47 (CanLII), per Beveridge JA, at para 3
  2. R v Robinson, 1989 ABCA 267 (CanLII), (1989), 51 CCC (3d) 452 (Alta. C.A.), per McClung JA
    R v Clark, 2006 BCCA 312 (CanLII), per Donald J
  3. R v Ewanchuk, 2008 ABCA 78 (CanLII), per Berger JA
    R v Ermine, 2010 SKCA 73 (CanLII), per Jackson JA
    R v BLB, 2004 MBCA 100 (CanLII), per Freedman JA
    R v Murray, 2009 NBCA 83 (CanLII)(complete citation pending)
    R v Bernardo, 1997 CanLII 2240 (ON CA), (1997), 121 CCC (3d) 123 (Ont. C.A.), per Doherty JA
    R v Abbey, 2013 ONCA 206 (CanLII), per Watt JA, at para 32
  4. Forrest, supra{, at para 5
  5. Forrest, supra{, at para 5
  6. Bernardo, supra, at para 24 ("This inquiry looks to the complexities of the arguments to be advanced and the appellant’s ability to make an oral argument in support of the grounds of appeal. The complexity of the argument is a product of the grounds of appeal, the length and content of the record on appeal, the legal principles" Forrest, supra, at para 5
  7. Bernardo, supra, at para 24 (" An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including the appellant’s ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of the case, and articulate the end product of that process before the court.")

See Also

Role of Trial Judge

General Principles

An accused person is entitled to a Constitutional right to an impartial trier-of-fact.[1]

A trial judge has a duty to ensure that the trial is fair and there are no miscarriage of justice.[2]

The trial judge is more than just an umpire but "is not to enter the arena and appear to take on the role of an advocate".[3]

Our criminal justice system is on that is "essentially adversarial" where the Crown presents evidence of guilt and the accused points out weaknesses in the evidence and presents contrary evidence. The trier of fact is a neutral arbiter of the dispute.[4] For this reason, it is improper for the judge to usurp the role of counsel in an inquisitorial manner.[5]

Trial judges are presumed to know the elementary principles of law.[6]

The court's inherent jurisdiction is limited by its role within the system of separate branches of government.[7]

Duty to Raise Issues

A trial judge has a duty to "conduct [a] trial judicially quite apart from the lapses of counsel".[8] This may include a duty to conduct a voir dire on issues such as voluntariness absent the request of counsel.[9]

Duty of Restraint

A judge has a duty of restraint during their court work as well as in their personal life.[10] It is a guarantee of judicial independence or impartiality.[11]

Judges are required to be "shielded from tumult and controversy that may taint the perception of impartiality".[12]

  1. See s. 11(d) of the Charter which is the right "...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"
    See also R v Valente, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, (1985), 23 CCC (3d) 193 (SCC), per Le Dain J
    Judicial Immunity
  2. see R v Harris, 2009 SKCA 96 (CanLII), 331 Sask. R. 283, per Richards JA, at para 28
    R v Amell, 2013 SKCA 48 (CanLII), per Lane JA, at para 25
  3. R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 69-72{{{3}}}
    R v Griffith, 2013 ONCA 510 (CanLII), per Rosenberg JA, at para 25
  4. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per McLachlin J (in dissent), at para ?
  5. R v Corbett, 2009 ABQB 619 (CanLII), per Ross J, at para 46
  6. R v Burns, 1994 CanLII 127 (SCC), [1994] 1 SCR 656, 89 CCC (3d) 193, per McLachlin J
  7. Ontario v Criminal Lawyers’ Association of Ontario, [2013] 3 SCR 3, 2013 SCC 43 (CanLII), per Karakatsanis J, at 30 paras 28, 30{{{3}}}, 38
  8. R v Piamonte, 2017 ONSC 2666 (CanLII), per Johnston J, at para 9
    R v Sweezey (1974), 20 CCC (2d) 400 (OCA), 1974 CanLII 1427 (ON CA), per Martin JA
  9. Piamonte, ibid., at para 9
    See also Voluntariness
  10. Ruffo v Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 SCR 267, per Gonthier J
  11. Ruffo, ibid.
  12. Ruffo, ibid.

Right of Parties to be Heard

There is a fundamental tenant that all parties affected by a decision shall be given an opportunity to be heard by the court before the court makes a ruling. This is the principle of audi alteram partem .[1] The right to be heard also provides a person "the right to know the case to be met".[2]

The judge has an obligation to allow each party who may be affected by a ruling to be permitted to respond to the case against them.[3]

A failure to afford each side to present argument before a judgment is a denial of that right will violate procedural fairness and is fatal.[4]

The right is not unqualified. A declaration of a party as a "vexatious litigant" has the effect of removing this right. Accordingly, it is only used sparingly.[5]

Related to this principle is the common law rule that "a person cannot be deprived of his liberty or property without notice."[6]

Refusal to consider an evidentiary objection is an improper refusal to assume jurisdiction that affects trial fairness.[7]

  1. R v Gustavson, 2005 BCCA 32 (CanLII), per Prowse JA at 64
    See also Moreau‑Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), per Arbour J, at para 75
    Canadian Union of Public Employees, Local 301 v Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 SCR 793, per L’Heureux-Dubé J, at para 73 - refereed to as the rule that “no man be condemned unheard"
  2. Devon Canada Corp. v Alberta (Energy and Utilities Board), 2003 ABCA 167 (CanLII), per McFadyen JA, at para 19
  3. Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), per McLachlin CJ, at para 53 ("a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case")
  4. R v Berry, 2014 ABQB 379 (CanLII), per Ross J, at para 7
    R v Graham, 2007 ABCA 153 (CanLII), per Ritter JA, at paras 11 to 12
    Fraser v Fraser, 1994 ABCA 275 (CanLII), (1994) 157 AR 98 (C.A.), per curiam, at para 10
  5. Kallaba v Bylykbashi, 2006 CanLII 3953 (ON CA), (2006), 207 O.A.C. 60, per Cronk and Juriansz JA, at para 31
  6. R v Marton, 2016 ONSC 2269 (CanLII), per Cronk and Juriansz JJA, at para 25
    R v Buchholz, [1958] M.J. No.7; 121 CCC 293 (Man. C.A.), 1958 CanLII 435 (MB CA), per Adamson CJ, at para 8
  7. R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J at 1449 citing R v Dersch, 1987 CanLII 155 (BCCA), per Esson JA

Timing of Interrim Rulings

Where a party seeks exclusion of evidence it is for the trial judge to "decide what procedure should be followed".[1]

With "rare exceptions", a judge is "empowered to reserve on any application until the end of the case".[2] This would include application to quash an indictment.[3]

The judge has discretion to defer rulings on the basis that:[4]

  1. "criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own" and
  2. it "discourages adjudication of constitutional issues without a factual foundation."

An exception for deferment of rulings are where the "interests of justice necessitate an immediate decision".[5] This will include where "the trial court itself is implicated in a constitutional violation" or where "substantial on-going constitutional violations require immediate attention".[6] As well, situations where an"apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial" should be exceptions.[7] This is especially true where the trial is expected to be of considerable duration.[8]

  1. R v Hamill, [1984] 6 WWR 530, 1984 CanLII 39 (BC CA), per Esson JA
  2. R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), per Sopinka J
  3. DeSousa, ibid. ("He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard.")
  4. DeSousa, ibid.
  5. DeSousa, ibid.
  6. DeSousa, ibid.
  7. DeSousa, ibid.
  8. DeSousa, ibid.

Rules of Court

See also: Case Management and Rules of Court

Under s. 482(1) and (2), a superior court and provincial have the power to make rules governing criminal proceedings.

Under s. 482.1, the courts also have the power the makes rules with respect to case management.[1]

  1. See also Case Management

Hearing Evidence at Trial

Must Consider All Admissible Evidence

A trial judge must consider all evidence relating to the issue of innocence or guilt.[1] Failure to do so is an error of law.[2]

However, there is no requirement that the judge "record all or any specific part of the process of deliberation on the facts".[3] A failure to record facts does not give rise to an error unless the judge's reasons demonstrate that not all the facts were considered.[4]

When considering evidence on a multi-count indictment, the judge just give separate consideration to a verdict on each count.[5]

Exposure to Inadmissible Evidence

Judges are regularly required to decide on whether it is properly admissible or not and disregard inadmissible evidence they are exposed to. It will not generally create an apprehension of bias. [6]

Considering Theories of Counsel

Subject to "due process concerns", there is no prohibition on the trial judge making findings of guilt on a theory that has not been advanced by the Crown.[7]


  1. R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286, per Sopinka J at 296 (SCR)
    R v DLW, 2013 BCSC 1327 (CanLII), per Romilly J, at para 3
  2. Morin, supra, at p. 296 (SCR)
  3. Morin, supra, at p. 296
    R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438, per Moldaver J, at para 46
  4. Morin, supra, at p. 296
    Walle, supra, at para 46
  5. R v Howe, 2005 CanLII 253 (ON CA), per Doherty JA, at para 44
  6. R v SS, 2005 CanLII 791 (ON CA), per curiam, at para 3
    R v Novak, 1995 CanLII 2024 (BCCA), per Prowse JA, at para 8
    See Reasonable Apprehension of Bias
  7. R v Dagenais, 2018 ONCA 63 (CanLII), per McCombs JA (ad hoc), at para 55 ("It is well-established that, subject to due process concerns, a conviction may be founded on a theory of liability that has not been advanced by the Crown, provided that theory is available on the evidence")
    R v Pickton, 2010 SCC 32 (CanLII), [2010] 2 SCR 198, per Charron J, at para 19
    R v Khawaja, 2010 ONCA 862 (CanLII), per curiam, at paras 143 to 145
    R v Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1, per Charron JA, at paras 34 to 35
    R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA

Control over Trial Process

A criminal trial court to "control its process" is a fundamental value of the criminal justice system".[1] A judge has "considerable" powers to intervene in a criminal trial to manage the proceedings.[2]

A judge is authorized to make orders "necessary to ensure an orderly trial, without which the administration of justice risks being ...thrown into disrepute".[3]

Superior Court

A Superior Court Justice has the inherent jurisdiction to eliminate any procedural unfairness that arises during a trial.[4]

The Superior court has inherent jurisdiction to control the disclosure process of a matter before the provincial court.[5]

Provincial Court

The "procedural directions contained in the Code are of necessity exhaustive". The powers of a provincial court judge are "entirely statutory."[6] However, "the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a ‘doctrine of jurisdiction by necessary implication’ when determining the powers of a statutory tribunal.” [7]

The inherent powers of a superior court judge to control the court process is said to be equally available to provincial court judges either expressly by statute or by necessary implication.[8]

Consequently, a provincial court judge has implied jurisdiction to "vary one of its own orders in order to correct clerical mistakes or errors arising from an accidental slip or omission or in order to properly reflect the intention of the court"[9]

Reconsidering Judgements

Generally, a "court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus.”[10]

Exclusion of Evidence

There is a limited power of a trial judge to exclude evidence in order to ensure trial fairness where other remedies are not sufficient. However, it is considered an "unusual exercise" of the trial management power. [11]

Prohibition Orders on Defence Conducting their Defence

A judge may limit the examination or cross-examination of witnesses or the right to call defence witness only where it is justified in "clear and compelling circumstances".[12]

Directing Crown Counsel

A trial judge should never direct Crown as to whom they must call to give evidence.[13]

  1. R v Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506, per curiam, at para 56
  2. R v Auclair, 2013 QCCA 671 (CanLII), per curiam, at para 55
  3. Auclair, ibid., at para 55
  4. R v Rose, [1998] 3 SCR 262, 1998 CanLII 768 (SCC), per Cory, Iacobucci and Bastarache JJ
  5. DP v Wagg, 2004 CanLII 39048 (ON CA), (2004), 71 O.R. (3d) 229 (C.A.), per Rosenberg JA
    see Disclosure
  6. R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597, per Ritchie J
  7. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 19
  8. R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597, per Ritchie J ("Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.")
  9. see R v Rhingo, [1997] OJ No 1110 (Ont. C.A.), 1997 CanLII 418 (ON CA), per Charron JA
    R v Robichaud, 2012 NBCA 87 (CanLII), [2012] NBJ No. 175 (C.A.), per Bell JA
  10. R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J, at para 29
  11. R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA
  12. R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J, at para 18
    R v Schneider, 2004 NSCA 99 (CanLII), per Cromwell JA
  13. R v Cook, [1997] 1 SCR 1113, 1997 CanLII 392 (SCC), per L’Heureux-Dubé J, at para 56 ("...nor do I think that a trial judge should ever order the Crown to produce a witness. If the Crown wished to adopt such a procedure in a given case, however, this would, of course, be within the legitimate exercise of its discretionary authority.")

Judicial Intervention

Limiting Evidence

The judge is required to listen to evidence that "advances the work of the court". He or she cannot be required to listen to irrelevant or pointless evidence.[1] The judge may even disallow the submission of non-relevant evidence.[2]

The judge has an obligation to track the admission of evidence to ensure that the record is restricted to what is admissible, and also that it is only used for the purpose for which it was admitted.[3]

The judge has the jurisdiction to edit the evidence, including written statements and oral testimony, as it is given. The judge may edit out portions of the evidence that is prejudicial or otherwise irrelevant or immaterial only so long as it does not distort the probative evidence.[4]

  1. R v Malmo-Levin, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ
  2. R v Schneider, 2004 NSCA 99 (CanLII), per curiam
  3. R v Morrisey, 1995 CanLII 3498 (ON CA), (1995), 22 O.R. (3d) 514, per Doherty JA
    R v Smith, 2011 ONCA 564 (CanLII), per Epstein JA, at para 59
  4. R v Dubois (1986), 27 CCC (3d) 325 (Ont.C.A.), 1986 CanLII 4683 (ON CA), per Morden JA
    R v Toten, 1993 CanLII 3427 (ON CA), (1993), 14 O.R. (3d) 225 (Ont.C.A.), per Doherty JA

Reserving Questions for Decision

Trial continuous

645 (1) ...

Questions reserved for decision

(4) A judge, in any case tried without a jury, may reserve final decision on any question raised at the trial, or any matter raised further to a pre-hearing conference, and the decision, when given, shall be deemed to have been given at the trial.

Questions reserved for decision in a trial with a jury

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) [manner of drawing cards] or (3.1) [power to order calling out names on cards] and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76; 2001, c. 32, s. 43.
[annotation(s) added]

CCC

Exclusion Public from Hearing

Fact Finding

See also: Analyzing Testimony#Findings of Fact

Sitting Position of Accused

Independent Research of the Judge

A judge should not enter "into the fray" by doing self-directed research that puts them in a role of being "advocate, witness and judge".[1]

A judge can only rely on social studies, literature or scientific reports after they have been tested by the parties.[2]

  1. R v Bornyk, 2015 BCCA 28 (CanLII), per Saunders JA (3:0) - judge did separate research on finger print evidence and performed own analysis
    R v BMS, 2016 NSCA 35 (CanLII), per curiam (3:0)
  2. BMS, ibid., at para 17
    R v SDP (1995), 1995 CanLII 8923 (ON CA), 98 CCC (3d) 83 (Ont.C.A.), at 36 paras 33, 36{{{3}}}
    Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 85 O.A.C. 54, per Lacourciere JA, at paras 47, 49 to 51
    R v Désaulniers (1994), 1994 CanLII 5909 (QC CA), 93 CCC (3d) 371, (Que.C.A.), per Tourigny JA, at paras 21, 23-24, 26-27

Judge Bound to Proceedings

Any justice may act before and after trial

790 (1) Nothing in this Act or any other law shall be deemed to require a justice before whom proceedings are commenced or who issues process before or after the trial to be the justice or one of the justices before whom the trial is held.

Two or more justices

(2) Where two or more justices have jurisdiction with respect to proceedings, they shall be present and act together at the trial, but one justice may thereafter do anything that is required or is authorized to be done in connection with the proceedings.
(3) and (4) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 172]
R.S., 1985, c. C-46, s. 790; R.S., 1985, c. 27 (1st Supp.), s. 172.

CCC

Loss of Judge During Proceedings

Doctrine of Functus Officio

Communications with Counsel Out of Court

Ex parte communications (i.e. communications in absence of one of the parties) concerning an ongoing proceedings should be avoided. It is a rule that relates to the "public perception of fairness within the administration of justice". [1] It also preserves "confidence of the public in the impartiality of the judiciary and thereby in the administration of justice".[2]

Ex parte communications between judge and counsel concerning a case will "almost invariably raise a reasonable apprehension of bias".[3]

  1. R v Deleary, 2007 CanLII 71720 (ON SC), per Templeton J, at para 22
  2. R v Jones, 1996 CanLII 8006 (ON SC), (1996), 107 CCC (3d) 517 (Ont. G.D.), per Then J
  3. Jones and Deleary, ibid.

Duty to Make a Record

Under Part XX of the Code, there is a duty upon the court to keep a record of every arraignment and all proceedings after the arraignment.

Record of Proceedings
How recorded

624. (1) It is sufficient, in making up the record of a conviction or acquittal on an indictment, to copy the indictment and the plea that was pleaded, without a formal caption or heading.

Record of proceedings

(2) The court shall keep a record of every arraignment and of proceedings subsequent to arraignment.
R.S., c. C-34, s. 552.

CCC


Endorsements on the Information

Where an election is made to supreme court, either judge alone or judge and jury, the court must endorse the information showing the "nature of the election" and whether anyone requested a preliminary inquiry.[1]

Where an election is made to provincial court before a provincial court judge, the court must endorse the information with that election.[2]

  1. s. 536(4.1)
  2. s. 536(3)

Maintaining Order

Preserving order in court

484. Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.

R.S., 1985, c. C-46, s. 484; R.S., 1985, c. 27 (1st Supp.), s. 203.

CCC

This section permits a judge to make an order of contempt for:

  • persistent refusal of accused to stand on entry of the presiding judge.[1]
  • the use of recording devices in the court against the order of the judge.[2]
  • the high degree of intoxication of the accused appearing at trial[3]

This section cannot be used to order the mode of dress of counsel.[4]

Ordering Sheriff to Detain Accused

Flowing from the trial management powers, the trial judge as a right and responsibility to control proceedings and control the conduct of those before them. This includes directing the sheriffs to detain, handcuff or otherwise interfere with the accused's liberty where necessary.[5]

  1. R v Heer, 1982 CanLII 786 (BC SC), per Andrews J, at para 17
    Re Hawkins, 53 W.W.R. 406, 53 DLR (2d) 453, [1966] 3 CCC 43 (sub nom. R v Hume; Ex parte Hawkins) (B.C.), 1965 CanLII 655 (BC SC), per Branca J
  2. R v Barker (Burke), 1980 ABCA 75 (CanLII), [1980] 4 W.W.R. 202, 53 CCC (2d) 322, 20 A.R. 611 (C.A.), per Morrow JA (3:0)
  3. Heer, supra
  4. Heer, supra, at para 17
    R v Samson; Bardon v Carver Prov. J. (1974), 14 N.S.R. (2d) 592, 29 C.R.N.S. 129, (sub nom. Re Samson and R.) 18 CCC (2d) 552, 50 DLR (3d) 365 (T.D.), 1974 CanLII 1292 (NS SC), per Hart J
  5. R v Millar, 2019 BCCA 298 (CanLII), per Fitch JA, at to 70 paras to 70{{{3}}}

Misc Powers

The judge does not have the power to order that counsel not communicate with a witness who is not in the middle of testimony. The rules of contempt of court and Professional Conduct are the only limitations on counsel's right to speak with witnesses and clients in court.[1]

Execution of Orders

Under s. 3.1 of the Code, any order made by any type of judge will be effective immediately unless otherwise stated:

Effect of judicial acts

3.1 (1) Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

Clerk of the court

(2) Unless otherwise provided or ordered, if anything is done from the bench by a court, justice or judge and it is reduced to writing, the clerk of the court may sign the writing.

2002, c. 13, s. 2; 2019, c. 25, s. 3

CCC

  1. R v Arsenault, (1956) 115 CCC 400 (NBCA)(*no CanLII links)

View

Superior Court Inherent Jurisdiction

All Courts that are created by s. 96 of the Constitution Act, 1867 are vested with "inherent jurisdiction" to make orders on matters that are not necessarily authorized by statute.[1]

The doctrine is of an "amorphous nature".[2] And can be used in "an apparently inexhaustible variety of circumstances and may be exercised in different ways".[3]

The doctrine is available as a "residual source of powers" that is available to a judge "whenever it is just or equitable to do so", which includes:[4]

  • ensuring "the observance of due process of law";
  • preventing "improper vexation or oppression";
  • "do justice between the parties" and
  • securing "a fair trial" between the parties.

It can be used to "supplement under-inclusive legislation or to otherwise fill gaps in appropriate circumstances".[5]

This jurisdiction may allow for the superior court to order the funding of costs associated with a matter before the provincial court where the following criteria are met:[6]

  1. the litigation would be unable to proceed if the order were not made;
  2. the claim to be adjudicated is prima facie meritorious;
  3. the issues raised transcend the individual interest of the particular litigant, are of public importance, and have not been resolved in previous cases.

In considering these criteria, the justice must be satisifed that the matter is "sufficiently special that it would be contrary to the interests of justice to deny the advance costs application".[7]

Limitations

The doctrine may be limited by statute. It cannot be used in such a way that it contravenes any statutory provision.[8]

It is also limited by "institutional roles and capacities that emerge out of our constitutional framework and values".[9]

It generally should be exercised "sparingly and with caution", such as where "inferior tribunals are powerless to act act and it is essential to avoid an injustice that action be taken."[10]

Examples of Application

A publication ban was ordered by inherent jurisdiction.[11] A publication ban can also be removed by inherent jurisdiction.[12]

A superior court has limited inherent powers to reconsider its own orders, except where the legislation otherwise prohibits reconsideration.[13]

  1. R v Caron, 2011 SCC 5, [2011] 1 SCR 78, per Binnie J (8:1), at para 21 (These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner".)
    Ontario v Criminal Lawyers’ Association of Ontario, [2013] 3 SCR 3, 2013 SCC 43 (CanLII), per Karakatsanis J (5:4), at para 18
  2. Ontario v CLAO, supra, at para 22
  3. Caron, supra, at para 29
  4. Ontario v CLAO, supra, at para 20
    Parsons v Ontario, 2015 ONCA 158 (CanLII), per Lauwers JA
  5. CR v Children's Aid Society of Hamilton, 2004 CanLII 34407 (ON SC), per Czutrin J, at para 29
  6. Caron, supra, at para 39
  7. Caron, supra, at para 39
  8. Parsons, supra, at para 71
    Ontario v CLAO, supra, at para 23
  9. Parsons, supra, at paras 72 to 73
    Ontario v CLAO, supra, at para 24
  10. Caron, supra, at para 30
  11. R v Church of Scientology of Toronto, 1986 CarswellOnt 925 (S.C.)(*no CanLII links)
  12. R v Ireland, 2005 CanLII 45583 (ON SC), per Del Frate J
  13. R v Adams, [1995] 4 SCR 707, 1995 CanLII 56 (SCC), per Sopinka J, at para 28 - in context of reconsidering a publication ban under s. 486

Doctrine of Mootness

Under the doctrine of "mootness" suggests that a court may decline to decide a case that "raises merely a hypothetical or abstract question" that "will not have the effect of resolving some controversy which affects or may affect the rights of the parties".[1]

  1. Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342, per Sopinka J, at para 15
    R v Smith, [2004] 1 SCR 385, 2004 SCC 14 (CanLII), per Binnie J

Civility and Professionalism

Tone of Reasons

The reasons for judgement should be "restrained and appropriate, clinical in tone and minimalist in approach".[1]

Sleeping

A judge found to be sleeping during trial will affect trial fairness and warrant a retrial.[2]

  1. Canada v Olumide, 2017 FCA 42 (CanLII), per Stratas JA, at para 39
  2. Cesan v The Queen, (2008) 83 ALJR 43 (Australia High Court)

Validity of Orders

Validity of Forms (Part XXVIII)

Forms

849. (1) The forms set out in this Part [Pt. XXVIII – Miscellaneous (s. 841 to 849)], varied to suit the case, or forms to the like effect are deemed to be good, valid and sufficient in the circumstances for which they are provided.

Seal not required

(2) No justice is required to attach or affix a seal to any writing or process that he or she is authorized to issue and in respect of which a form is provided by this Part [Pt. XXVIII – Miscellaneous (s. 841 to 849)].

Official languages

(3) Any pre-printed portions of a form set out in this Part, varied to suit the case, or of a form to the like effect shall be printed in both official languages.
2002, c. 13, s. 84.
[annotation(s) added]

CCC

Judicial Decisions

When drafting a decision, judges are expected to articulate the contested elements of the offence and give each element "dedicated attention" in their analysis.[1]

  1. R v Bradley, 2020 ONCA 206 (CanLII(complete citation pending), per curiam, at para 9 ("It is always appreciated when trial judges articulate the contested elements of the offence and give each dedicated attention, but it is not an error to fail to do so where it is apparent that the required conclusions were made. That is the case here.")

Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

Misc Authority of Youth Court Justice

Misc Other Authorities

Provincial Court Judges

Officials with powers of two justices

483 Every judge or provincial court judge authorized by the law of the province in which he is appointed to do anything that is required to be done by two or more justices may do alone anything that this Act or any other Act of Parliament authorizes two or more justices to do.
R.S., 1985, c. C-46, s. 483; R.S., 1985, c. 27 (1st Supp.), s. 203.

CCC

Maintaining Records

Application of Parts XVI, XVIII, XX and XXIII

572 The provisions of Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], the provisions of Part XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (s. 535 to 551)] relating to transmission of the record by a provincial court judge where he holds a preliminary inquiry, and the provisions of Parts XX [Pt. XX – Procedure in Jury Trials and General Provisions (s. 574 to 672)] and XXIII [Pt. XXIII – Sentencing (s. 716 to 751.1)], in so far as they are not inconsistent with this Part, apply, with such modifications as the circumstances require, to proceedings under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)].
R.S., 1985, c. C-46, s. 572; R.S., 1985, c. 27 (1st Supp.), s. 203.
[annotation(s) added]

CCC

Under Part XX relating to jury trials:

Taking evidence

646 On the trial of an accused for an indictable offence, the evidence of the witnesses for the prosecutor and the accused and the addresses of the prosecutor and the accused or counsel for the accused by way of summing up shall be taken in accordance with the provisions of Part XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (s. 535 to 551)], other than subsections 540(7) to (9) [adducing hearsay and other credible and trustworthy evidence], relating to the taking of evidence at preliminary inquiries.
R.S., 1985, c. C-46, s. 646; 2002, c. 13, s. 59.
[annotation(s) added]

CCC

See Also

Other Parties

Judicial Intervention During Trial

General Principles

See also: Role of Trial Judge

It is well recognized that judicial intervention may compromise trial fairness.[1] This will become an issue where the judge has created an appearance that they have placed their authority on a side.[2]

Generally, a judge may intervene safely where it is for the purpose of preserving the appearance of trial fairness.[3]

  1. R v Fagbola, 2019 ONSC 1119 (CanLII), per Schreck J, at para 10
    R v Hungwe, 2018 ONCA 456 , 142 O.R. (3d) 22, per Nordheimer JA, at paras 39 to 46
    R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 61 to 72
    R v Valley (1986), 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207 (Ont. C.A.), per Martin JA, at pp. 230-232
  2. Fagbola, supra, at para 10
    Hungwe, supra, at para 49
    Stucky, supra, at para 84
    Valley, supra, at p. 231
    R v Murray, 2017 ONCA 393 (CanLII), 138 O.R. (3d) 500, per Watt JA, at para 105
  3. R v Valley (1986), 26 CCC (3d) 207 (ONCA), 1986 CanLII 4609 (ON CA), per Martin JA

Duty to Intervene

A judge is not permitted to act as a "referee who must sit passively while counsel call the case in any fashion they please".[1]

However, the traditional role of judges as "sphinx" who simply observe the proceedings is no longer acceptable. It should be accepted that judges will intervene "so for justice in fact be done".[2] Where necessary judge should ask questions of witnesses, interrupt testimony and call them to order.[3]

Judges should intervene when counsel make decisions that would "unduly lengthen the trial or lead to a proceedings that is almost unmanageable."[4] Judges are empowered by inherent jurisdiction to "make directions necessary to ensure that the trial proceeds in an orderly manner".[5]

  1. R v Felderhof, 2003 CanLII 37346 (ON CA), (2003), 68 O.R. (3d) 481 (C.A.), per Rosenberg JA, at para 40
    Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47 (CanLII), per O’Connor ACJ and Blair JA, at para 232
  2. R v Brouillard, at p. 44 ("...it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.")
  3. Borouillard, ibid.
  4. Felderhof, supra
  5. Felderhof, supra

Intervention During Examinations

Right to Questioning

All counsel are entitled to question witnesses on direct and cross examination without undue intervention. [1] Undue intervention will exist where the intervention affect trial fairness.[2] This includes intervention that prevents the accused from "telling his story in his own way".[3]

Crown counsel is permitted present its evidence and question its witnesses even where the relevancy is not immediately apparent to the judge.[4]

Both defence and crown must be permitted to present their case before a decision is made.[5]

Presumption of Non-Intervention

There is a presumption that a trial judge has intervened in a trial properly.[6] The judge may often make comments, give directions or ask questions. [7] There is also a strong presumption against [8]

Intervention Alone Not Improper

Merely intervening frequently, by itself, it not enough to amount to a miscarriage of justice.[9]

The judge should not usurp the role of counsel or interfere with the defence.[10]

Trial Fairness

The key issue is whether the intervention affected trial fairness. [11] This is from the perspective of a reasonable observer. [12]

The main issue is not whether the intervention was such that a "reasonably minded person who had been present throughout the trial could conclude that the accused had not received a fair trial, but whether such a person would come to such a conclusion."[13]

Failure to Object

The presence or absence of objections by defence counsel is a factor but not determinative.[14]

Permissible Conduct

A judge may disrupt questioning in order to clear evidentiary ambiguities, pursue subjects left vague by the witness, and ask questions counsel should have asked.[15]

"Interlocutory remarks" of the judge during argument are not "judicial pronouncements"[16]

A judge is permitted to give the jury mid-trial instructions to disregard any erroneous comments made by counsel. If it is given promptly and with an explanation of why it should be disregarded, this can effectively correct any concern that a jury might misuse the information. [17]

There is a presumption that an accused not be restrained while in court. It is upon the Crown to establish grounds to order the restraint of the accused.[18]

The judge is entitled in:[19]

  1. posing questions to a witness to clear up ambiguities in their evidence;
  2. calling a witness to order and focusing him or her on the true matters in issue;
  3. exploring some issue on which the witness’s evidence has been left vague and uncertain; or
  4. putting questions which should have been asked by counsel in order to elicit evidence on some relevant issue.
Impact on Examinations

Unnecessary and repeated interruptions that disrupt the flow and effectiveness of cross-examination may exceed permissible limits.[20] A judge should generally only ask questions after the examination is complete.[21]

Judicial Questioning

The judge should not cross examine the witness.[22] The judge should remain neutral.[23]

Judges may pose any questions to the witness where it is in the interest of justice.[24]

Intrudes on Function and Strategy

Judges should not interfere in a manner that undermines the function of counsel and disrupts or destroys counsel's strategy.[25]

  1. R v Farmer, 1985 ABCA 244 (CanLII), per Belzil JA - new trial ordered due to intervention
    R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207, per Martin JA, at p. 230 leave refused [1986] 1 SCR xiii
    R c Scianna, (1989) 47 CCC (3d) 81, 1989 CanLII 7233 (ON CA), per Krever JA
    Brouillard Also Known As Chatel v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, 1985 CanLII 56 (SCC), per Lamer J, at p. 42
  2. R v Stucky, 2009 ONCA 151 (CanLII), per Weiler and Gillese JJA, at paras 68 to 73
    Valley, supra, at p. 232
  3. R v Fagbola, 2019 ONSC 1119 (CanLII), per Schreck J, at para 12
    R v Lahouri, 2013 ONSC 2085 (CanLII), 280 C.R.R. (2d) 249, per K.L. Campbell J, at para 9
    Valley, supra, at p. 231
  4. Darlyn, supra
  5. R v Wong, 1985 ABCA 54 (CanLII), per Stevenson JA
    Viger
    R v Jahn, 1982 ABCA 97 (CanLII), per Haddad JA
    R v Atkinson (1976), 36 C.R.N.S. 255 (Man. C.A.), 1976 CanLII 1389 (MB CA), per Freedman CJ
  6. R v Lahouri, 2013 ONSC 2085 (CanLII), per Campbell J, at paras 4, 5
  7. Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47 (CanLII), per O’Connor ACJ and Blair JA, at para 231
  8. R v RB, 2017 ONCA 75 (CanLII), per curiam, at para 4
  9. RB, ibid., at para 4
    R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 CCC (3d) 14 (Ont. C.A.), per Doherty JA
  10. Lahouri, supra, at para 8
  11. Valley, supra
    Lahouri, supra, at para 4
  12. R v Stucky, 2009 ONCA 151 (CanLII), per Weiler and Gillese JJA
  13. R v Dugas, 2012 NSCA 102 (CanLII), per Oland JA, at para 37
  14. RB, supra, at para 4
    Lahouri, supra, at para 10
  15. R v Watson, 2004 CanLII 45443 (ON CA), per curiam, at para 10
  16. R v Visscher, 2012 BCCA 290 (CanLII), per Smith J, at para 25
  17. see R v Normand (D.G.), 2002 MBCA 95 (CanLII), per Twaddle JA, at para 20
  18. R v WHA, 2011 NSSC 166 (CanLII), per Rosinski J
  19. Lahouri, supra, at para 8
    R v Giovannini, 2018 NLCA 19 (CanLII), per Hoegg JA, at para 15
    Valley, supra
  20. Watson, supra
  21. Lahouri, supra, at para 8
  22. Lahouri, supra, at para 8
  23. Lahouri, supra, at para 8
  24. Lahouri, supra
    R v Darlyn (1946), 88 CCC 269, 1946 CanLII 248 (BC CA), per O'Halloran JA
  25. R v Switzer, 2014 ABCA 129 (CanLII), per curiam, at para 13

Rules of Court

General Principles

Section 482 authorizes provincial and superior courts to make procedural rules so long as they are not "inconsistent" with any federal legislation.

Rules of Court
Power to make rules

482 (1) Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal.

Power to make rules

(2) The following courts may make rules of court not inconsistent with this Act or any other Act of Parliament that are applicable to any prosecution, proceeding, including a preliminary inquiry or proceedings within the meaning of Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to the prosecution, proceeding, action or appeal:

(a) every court of criminal jurisdiction for a province;
(b) every appeal court within the meaning of section 812 [x] that is not a court referred to in subsection (1) [powers of the superior and appellate court to make rules];
(c) the Ontario Court of Justice;
(d) the Court of Quebec and every municipal court in the Province of Quebec;
(e) the Provincial Court of Nova Scotia;
(f) the Provincial Court of New Brunswick;
(g) the Provincial Court of Manitoba;
(h) the Provincial Court of British Columbia;
(i) the Provincial Court of Prince Edward Island;
(j) the Provincial Court of Saskatchewan;
(k) the Provincial Court of Alberta;
(l) the Provincial Court of Newfoundland and Labrador;
(m) the Territorial Court of Yukon;
(n) the Territorial Court of the Northwest Territories; and
(o) the Nunavut Court of Justice.
Purpose of rules

(3) Rules under subsection (1) [powers of the superior and appellate court to make rules] or (2) [x] may be made

(a) generally to regulate the duties of the officers of the court and any other matter considered expedient to attain the ends of justice and carry into effect the provisions of the law;
(b) to regulate the sittings of the court or any division thereof, or of any judge of the court sitting in chambers, except in so far as they are regulated by law;
(c) to regulate the pleading, practice and procedure in criminal matters, including pre-hearing conferences held under section 625.1 [pre-hearing conference], proceedings with respect to judicial interim release and preliminary inquiries and, in the case of rules under subsection (1) [powers of the superior and appellate court to make rules], proceedings with respect to mandamus, certiorari, habeas corpus, prohibition and procedendo and proceedings on an appeal under section 830 [summary conviction appeal]; and
(d) to carry out the provisions of this Act relating to appeals from conviction, acquittal or sentence and, without restricting the generality of this paragraph,
(i) for furnishing necessary forms and instructions in relation to notices of appeal or applications for leave to appeal to officials or other persons requiring or demanding them,
(ii) for ensuring the accuracy of notes taken at a trial and the verification of any copy or transcript,
(iii) for keeping writings, exhibits or other things connected with the proceedings on the trial,
(iv) for securing the safe custody of property during the period in which the operation of an order with respect to that property is suspended under subsection 689(1) [restitution or forfeiture of property], and
(v) for providing that the Attorney General and counsel who acted for the Attorney General at the trial be supplied with certified copies of writings, exhibits and things connected with the proceedings that are required for the purposes of their duties.
Publication

(4) Rules of court that are made under this section must be published or otherwise made available to the public.

Regulations to secure uniformity

(5) Notwithstanding anything in this section, the Governor in Council may make such provision as he considers proper to secure uniformity in the rules of court in criminal matters, and all uniform rules made under the authority of this subsection prevail and have effect as if enacted by this Act.
R.S., 1985, c. C-46, s. 482; R.S., 1985, c. 27 (1st Supp.), s. 66; 1994, c. 44, s. 35; 2002, c. 13, s. 17; 2015, c. 3, s. 50; 2019, c. 25, s. 186.
[annotation(s) added]

CCC

This provision came into force on December 18, 2019.

Manner of Interpretation

The rules created by a court should be subject to the "ordinary principles of statutory interpretation".[1]

  1. R v Gowenlock, 2019 MBCA 5 (CanLII), per Chartier CJ, at para 73
    Evans v Jensen, 2011 BCCA 279 (CanLII), per Prowse JA
    See also Statutory Interpretation

Rules of the Provinces and Territories

Province Level Title Citation
Alberta Superior Court / Court of Appeal Alberta Rules of Court Alta Reg 124/2010
Alberta Superior Court Court of Queen's Bench for Alberta Summary Conviction Appeal Rules SI/2012-39
British Columbia Provincial Court Provincial Court of British Columbia Criminal Caseflow Management Rules SI/99-104
British Columbia Superior Court Criminal Rules of the Supreme Court of British Columbia SI/97-140
British Columbia Court of Appeal British Columbia Court of Appeal Criminal Appeal Rules, 1986 BC Reg 145/86
Manitoba Superior Court Criminal Proceedings Rules of the Manitoba Court of Queen's Bench SI/2016-34
New Brunswick Superior Court Criminal Procedure Rules of the Court of Queen's Bench of New Brunswick SI/2015-81
New Brunswick Superior Court New Brunswick Court of Queen's Bench Summary Conviction Appeal Rules SI/80-117
Newfoundland Superior Court Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal Appeal Rules (2002) SI/2002-96
Newfoundland Provincial Rules of the Provincial Court of Newfoundland and Labrador in Criminal Proceedings SI/2004-134
Newfoundland Superior Supreme Court of Newfoundland, Trial Division Rules for Orders in the Nature of Certiorari, Habeas Corpus, Mandamus and Prohibition SI/2000-33
Newfoundland Superior Court The Criminal Appeal Rules of the Supreme Court of Newfoundland, Trial Division SI/87-28
Newfoundland Superior Court Newfoundland Rules of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole SOR/89-297
Northwest Territories Court of Appeal Rules of the Court of Appeals for the Northwest Territories as to A. Criminal Appeals B. Bail on Appeals SOR/78-68
Northwest Territories Superior Court Northwest Territories Rules of Practice Respecting Applications and Hearings concerning a Reduction in the Number of Years of Imprisonment Without Eligibility for Parole SOR/98-392
Northwest Territories Superior Court Criminal Procedure Rules of the Supreme Court of the Northwest Territories SI/98-78
Nova Scotia Superior Court / Court of Appeal Nova Scotia Civil Procedure Rules, Nova Scotia Civil Procedure Rules Royal Gaz Nov 19, 2008
Nova Scotia Provincial Provincial Court Rules website
Ontario Superior Court Criminal Proceedings Rules for the Superior Court of Justice (Ontario) SI/2012-7
Ontario Provincial Criminal Rules of the Ontario Court of Justice SI/2012-30, website
Prince Edward Island Court of Appeal Prince Edward Island – Criminal Appeal Rules of Court SI/2011-109
Prince Edward Island Superior Court Prince Edward Island Criminal Rule of Practice Respecting Reduction in the Number of Years of Imprisonment Without Eligibility for Parole SOR/92-383
Quebec Court of Appeal Rules of the Court of Appeal of Quebec in Criminal Matters SI/2006-142
Quebec Superior Court Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002 SI/2002-46
Quebec Provincial Regulation of the Court of Québec CQLR c C-25.01, r 9
Saskatchewan Court of Appeal The Court of Appeal Criminal Appeal Rules (Saskatchewan) SI/2011-9
Saskatchewan Superior Court Saskatchewan Court of Queen's Bench Rules Respecting Pre-Trial Conferences SI/86-158
Saskatchewan Superior Court Court of Queen's Bench for Saskatchewan Summary Conviction Appeal Rules SI/2011-20
Yukon Court of Appeal Yukon Territory Court of Appeal Criminal Appeal Rules, 1993 SI/93-53
Yukon Superior Court Supreme Court of Yukon Summary Conviction Appeal Rules, 2009 SI/2012-64
Yukon Superior Court Yukon Territory Supreme Court Rules for Pre-hearing Conferences in Criminal Matters SOR/88-427


Youth Court

Youth justice court may make rules

17 (1) The youth justice court for a province may, subject to the approval of the lieutenant governor in council of the province, establish rules of court not inconsistent with this Act or any other Act of Parliament or with any regulations made under section 155 regulating proceedings within the jurisdiction of the youth justice court.

Rules of court

(2) Rules under subsection (1) may be made

(a) generally to regulate the duties of the officers of the youth justice court and any other matter considered expedient to attain the ends of justice and carry into effect the provisions of this Act;
(b) subject to any regulations made under paragraph 155(b), to regulate the practice and procedure in the youth justice court; and
(c) to prescribe forms to be used in the youth justice court if they are not otherwise provided for by or under this Act.
Publication of rules

(3) Rules of court that are made under the authority of this section shall be published in the appropriate provincial gazette.

YCJA

Forms, Regulations and Rules of Court
Forms

154 (1) The forms prescribed under section 155, varied to suit the case, or forms to the like effect, are valid and sufficient in the circumstances for which they are provided.

If forms not prescribed

(2) In any case for which forms are not prescribed under section 155, the forms set out in Part XXVIII [Pt. XXVIII – Miscellaneous (s. 841 to 849)] of the Criminal Code, with any modifications that the circumstances require, or other appropriate forms, may be used.

Regulations

155 The Governor in Council may make regulations

(a) prescribing forms that may be used for the purposes of this Act;
(b) establishing uniform rules of court for youth justice courts across Canada, including rules regulating the practice and procedure to be followed by youth justice courts; and
(c) generally for carrying out the purposes and provisions of this Act.

YCJA

See Also

Procedural Powers of a Preliminary Inquiry Judge

General Principles

Powers of justice

537 (1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (s. 535 to 551)] may

(a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of a witness, the inability of a witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason;
(b) remand the accused to custody for the purposes of the Identification of Criminals Act;
(c) except where the accused is authorized pursuant to Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)] to be at large, remand the accused to custody in a prison by warrant in Form 19 [forms];
(d) resume an inquiry before the expiration of a period for which it has been adjourned with the consent of the prosecutor and the accused or his counsel;
(e) order in writing, in Form 30, that the accused be brought before him, or any other justice for the same territorial division, at any time before the expiration of the time for which the accused has been remanded;
(f) grant or refuse permission to the prosecutor or his counsel to address him in support of the charge, by way of opening or summing up or by way of reply on any evidence that is given on behalf of the accused;
(g) receive evidence on the part of the prosecutor or the accused, as the case may be, after hearing any evidence that has been given on behalf of either of them;
(h) order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing;
(i) regulate the course of the inquiry in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry, that is consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) [agreement to be recorded] or agreement made under section 536.5 [agreement to limit scope of preliminary inquiry];
(j) if the prosecutor and the accused so agree, permit the accused to appear by counsel or by closed-circuit television or videoconference, for any part of the inquiry other than a part in which the evidence of a witness is taken;
(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; and
(k) require an accused who is confined in prison to appear by closed-circuit television or videoconference, for any part of the inquiry other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel.
Power provided under paragraph (1)(i)

(1.01) For the purpose of paragraph (1)(i) [power to regulating inquiry], the justice may, among other things, limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.

Section 715 or 715.01

(1.02) If a justice grants a request under paragraph (1)(j.1) [power to permit accused to be absent during inquiry], the Court must inform the accused that the evidence taken during their absence could still be admissible under section 715 [evidence at preliminary inquiry may be read at trial in certain cases] or 715.01 [transcript of evidence of peace officer admissible at trial].

Inappropriate questioning

(1.1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (s. 535 to 551)] shall order the immediate cessation of any part of an examination or cross-examination of a witness that is, in the opinion of the justice, abusive, too repetitive or otherwise inappropriate.

Change of venue

(2) Where a justice changes the place of hearing under paragraph (1)(a) to a place in the same province, other than a place in a territorial division in which the justice has jurisdiction, any justice who has jurisdiction in the place to which the hearing is changed may continue the hearing.

(3) and (4) [Repealed, 1991, c. 43, s. 9]

R.S., 1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22; 2019, c. 25, s. 242.
[annotation(s) added]

Organization

538 Where an accused is an organization, subsections 556(1) [organization to appear by agent or counsel] and (2) [consequence of non-appearance by organization] apply with such modifications as the circumstances require.

R.S., 1985, c. C-46, s. 538; 2003, c. 21, s. 8.
[annotation(s) added]

CCC

Powers described in s. 537 should be "interpreted broadly so that the judge can carry out his mandate effectively."[1]

Disclosure

The accused right to disclosure has no connection with the course of the preliminary inquiry. The power of the court to ensure that disclosure is met is not affected by the inquiry process.[2] Unavailable evidence that would assist in full answer and defence has no bearing on the preliminary inquiry process.[3]

  1. R v Swystun, 1990 CanLII 7682 (SKCA), per Gerwing JA
    R v Stinert, 2015 ABPC 4 (CanLII), per Rosborough J, at para 41
  2. R v Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, 12 CR (5th) 332 (Ont CA), per Doherty JA
    R v Paulishyn, 2017 ABQB 61 (CanLII), per Yamauchi J
  3. Paulishyn, ibid.

Focus Hearings

Order for hearing

536.4 (1) The justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the justice’s own motion, that a hearing be held, within the period fixed by rules of court made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] or, if there are no such rules, by the justice, to

(a) assist the parties to identify the issues on which evidence will be given at the inquiry;
(b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses’ needs and circumstances; and
(c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
Agreement to be recorded

(2) When the hearing is completed, the justice shall record any admissions of fact agreed to by the parties and any agreement reached by the parties.
2002, c. 13, s. 27.
[annotation(s) added]

CCC

Agreement to limit scope of preliminary inquiry

536.5 Whether or not a hearing is held under section 536.4 [order for preliminary inquiry hearing], the prosecutor and the accused may agree to limit the scope of the preliminary inquiry to specific issues. An agreement shall be filed with the court or recorded under subsection 536.4(2) [agreement to be recorded], as the case may be.

2002, c. 13, s. 27; 2019, c. 25, s. 241(E)
[annotation(s) added]

CCC

Publication Bans

See also: Public and Media Restrictions

There are several publication bans available for preliminary inquires:

  • complainant's identity (s. 486.4(1) and (2), 486.4(3) [mandatory]; s. 486.4(1), 486.5(1))
  • accused's confessions (s. 542) [mandatory]
  • evidence of preliminary inquiry (s. 539)
  • witnesse's identity (s. 486.5(1))
  • justice system participant's identity (s. 486.2(5))

Absence of Accused or Video-link Attendance

Powers of justice

537
...

(j) where the prosecutor and the accused so agree, permit the accused to appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the inquiry other than a part in which the evidence of a witness is taken;
(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; and
(k) for any part of the inquiry other than a part in which the evidence of a witness is taken, require an accused who is confined in prison to appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.


...
R.S., 1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22.

CCC

Statement of Issues and Witnesses Under Section 536.3

General Principles

Under s. 536.3, where an accused elects to have a preliminary inquiry, counsel must provide the court and the other party with a statement that identifies the issues that the evidence should cover and a list of the witnesses expected to provide the evidence:

Statement of issues and witnesses

536.3 If a request for a preliminary inquiry is made, the prosecutor or, if the request was made by the accused, counsel for the accused shall, within the period fixed by rules of court made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] or, if there are no such rules, by the justice, provide the court and the other party with a statement that identifies

(a) the issues on which the requesting party wants evidence to be given at the inquiry; and
(b) the witnesses that the requesting party wants to hear at the inquiry.

2002, c. 13, s. 27; 2011, c. 16, s. 3(F).

[annotation(s) added]

CCC

Mandatory Rule

The provisions are said to be "mandatory".[1] However, these provision does not create a mandatory obligation upon the Crown to address all issues and call all witnesses on a list provided by the defence. [2]

Purpose and History

Section 536.3 came into force on June 1, 2004. Its objective was to address "concerns about the efficiency of the preliminary inquiry".[3] It was considered a compromise between those seeking to abolish the hearing and those wishing to keep it.[4]

The purpose of this section is to "streamline the preliminary inquiry process, reduce the number of witnesses who need to be called and shortened the length of the inquiry as a whole."[5]

Appropriate Issues

There is no fixed limitation on how many issues are permitted to be raised in a preliminary inquiry.[6]

The party requesting the inquiry must identify only those "issues" that "are in question in the proceeding and why they are important subjects of litigation".[7] The issues cannot be listed in a "perfunctory manner" or in "overbroad or obscure" terms.[8]

The provision assumes that the party filing notice "will do so in good faith and with a concern for the proper use of court resources".[9]

A Court may refuse to hold a preliminary inquiry where they are not satisfied that a viable issue has been raised.[10]

Improper issues include statements such as "all issues", "credibility", "mens rea and actus reus", "whether the accused was involved in or committed any criminal offence".[11]

The Criminal Rules of the Ontario Court of Justice, SI/2012-30 s. 4.3(3) sets out specific requirements for the list of issues.[12]

Crown Compliance with the List

The Crown has no obligation to call any witnesses listed on the defence's notice, especially if they are not required to address proper issues raised.[13] The only obligation of the Crown in calling evidence at the hearing is to establish a prima facie case.[14]

Defence Failure to List Issues or Witnesses

A failure to comply with s. 536.3 can result in the preliminary inquiry judge applying s. 537 to "deem" the request for a preliminary inquiry to be abandoned.[15]

  1. LeBlanc and Steeves v R., 2009 NBCA 84 (CanLII), per Richard JA
  2. R v Brufatto, 2011 ABPC 347 (CanLII), per Ogle J, at para 10
    R v TP, [2006] N.J. No. 278 (P.C.), 1976 CanLII 1335 (ON SC), per Cory J
  3. R v Stinert, 2015 ABPC 4 (CanLII), per Rosborough J, at para 6
  4. Stinert, ibid., at paras 6 to 17
  5. Stinert, ibid., at para 24
    TP, supra, at paras 26 to 28 (The sections are "designed to expedite and to shorten the length of preliminary inquiries by requiring counsel to focus on issues which are being contested and the witnesses that are relevant to those issues") and ("Section 536.3 of the Criminal Code is designed to limit the scope of the preliminary inquiry").
  6. Stinert, supra, at para 26
    R v Gallant, 2009 NBCA 409 (CanLII), per Richard JA
  7. Stinert, supra, at para 25
  8. Stinert, supra, at para 26
  9. TP, supra, at para 28
  10. R v Morgan, 2006 YKTC 79 (CanLII), per Faulkner J, at paras 20 and 21
  11. See Stinert, supra, at para 29 - lists other examples as well TP, supra, at para 28 ("It assumes that counsel will not file such statements in a perfunctory manner and simply list every witness found in the disclosure provided by the Crown. Such an approach to section 536.3 by counsel would not be consistent with their responsibility as officers of the court to promote the appropriate functioning of the trial process.")
  12. see Stinert, supra, at para 37
  13. TP, supra, at para 28 ("It does not have the effect of requiring the Crown to call every witness listed by the accused in his or her notice.")
    Stinert, supra, at paras 24 to 25
    R v Ward (1976), 31 CCC (2d) 466, 35 C.R.N.S. 117, 1976 CanLII 1335 (ON SC), per Cory J
  14. Ward, ibid.
  15. Stinert, supra, at paras 40 to 45
    R v Callender, 2007 ONCJ 86 (CanLII), per Duncan J, at paras 9 to 10

Rules by Province

See also: Rules of Court

Certain provinces have enacted rules under s. 482 or 482.1 relating to the requirements under s. 536.3.

Ontario

The Criminal Rules of the Ontario Court of Justice, SI/2012-30 state:

Focus hearing, preliminary inquiry

4.3 (1) A proceeding that is to have a preliminary inquiry shall have a hearing under section 536.4 [order for preliminary inquiry hearing] of the Code if the preliminary inquiry judge so directs.
(2) The hearing shall be attended by

(a) counsel who will be conducting the preliminary inquiry, or another counsel designated by him or her with authority to make binding decisions; and
(b) the accused, if he or she is self-represented.
Materials

(3) The party who requested the preliminary inquiry shall serve the following materials on the opposing parties, together with the statement of issues and witnesses required by section 536.3 of the Code, and file them with proof of service, at least three days before the hearing:

(a) a list of witnesses whom the parties seek to have testify in person at the preliminary inquiry and, for each witness named in the list,
(i) a brief synopsis of the expected evidence,
(ii) an explanation of why in-person testimony is necessary, and
(iii) an estimate of the time required to examine or cross-examine the witness;
(b) a list of witnesses whom the parties propose to examine through a discovery process;
(c) a brief statement as to whether committal for trial is in issue, and on what basis; and
(d) a statement of admissions agreed upon between the parties.
Absence of agreement

(4) At the conclusion of the hearing, if the parties do not agree as to the witnesses to be called at the preliminary inquiry, either party may schedule a hearing in accordance with subsections 540(7), (8) and (9) of the Code.

Discovery, preliminary inquiry

4.4 (1) At any time before committal for trial, the evidence of a witness may be taken by means of a discovery process if the parties and the preliminary inquiry judge agree.

Official record

(2) Evidence taken under subrule (1) forms part of the official record of the preliminary inquiry.

Exception, vulnerable witness

(3) Subrule (1) does not apply to a witness who is

(a) less than 18 years old; or
(b) the complainant in a proceeding involving sexual or physical violence.

...

Rules

Alberta

Judicial Immunity

General Principles

The principle of judicial immunity protects judges from testifying to observations made during any proceedings they are administering. This principle derives from the principle of judicial independence which protects judges from certain consequences when making decisions.[1]

This typically means that a judge cannot be compelled to testify regarding "events experienced in the course of their judicial duties" or "matters encountered in the course of exercising a judicial function".[2] However, some suggestion is that this also means they are not competent to testify either.[3]

Where the evidence would concern events from prior to the judge's appointment then they will be compellable.[4]

Judicial immunity will cover chamber discussions in front of the preliminary inquiry judge.[5]

  1. R v Beauregard, 1986 CanLII 24 (SCC), per Dickson J (3:2)
    R v Parente, 2009 CanLII 18685 (ON SC), per Templeton J, at para 7
  2. Parente, ibid., at paras 6, 237tm12
    Ermina v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8969 (FC), per Tremblay-Lamer J, at para 5 - 11 citing MacKeigan v Hickman (1988), 43 CCC (3d) 287 (N.S.T.D.), 1988 CanLII 7124 (NS SC), per Glube CJ
    Beauregard, supra, at p. 69
  3. Parente, supra, at para 10
  4. e.g. R v Wolf, 2007 ONCA 327 (CanLII), per curiam (3:0), at para 10
  5. Parente, supra, at para 16

Judicial Independence

Tribunals are generally not protected by the constitutional rules around judicial independence as their role is largely to affect government policy.[1]

In order to resolve disputes, interpret the law and defend the Constitution it is necessary that courts be "completely separate in authority and function from all other participants in the justice system".[2]

Sources of Judicial Independence

Judicial Independence comes from an "unwritten constitutional principle"[3]

Independence is also derived from the separation of powers between the branches of government.[4]

Two Aspects of Independence

Judicial independence involves two aspects. Independence must have "both an individual and a collective or institutional aspect".[5]

Individual (or personal) independence means that a judge has a "right to refuse to answer to the executive or legislative branches of government ... as to how and why the judge arrived at a particular judicial conclusion".[6]

Purpose

The objective of judicial independence is "to ensure a reasonable perception of impartiality".[7] Independence is a "necessary prerequisite for judicial impartiality".[8]

Salaries

Judicial salaries are a means by which judicial independence is preserved.[9]

Independence requires that independence commissions play a role in the setting of salary rates.[10]

  1. Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), per McLachlin CJ, at para 24
  2. R v Beauregard, [1986] 2 SCR 56, 1986 CanLII 24 (SCC), per Dickson J (3:2)
  3. Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 SCR 3, 1997 CanLII 317 (SCC), per Lamer CJ
  4. Ontario v Criminal Lawyers' Association of Ontario, [2013] 3 SCR 3, 2013 SCC 43 (CanLII), per Karakatsanis J (5:4), at para 28
  5. Beauregard, ibid.
    MacKeigan v Hickman, [1989] 2 SCR 796, 1989 CanLII 40 (SCC), per McLachlin J (5:2)
  6. MacKeigan, ibid.
  7. R v Lippe, [1991] 2 SCR 114, 1990 CanLII 18 (SCC), per Gonthier J
  8. Lippe, ibid.
  9. Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 SCR 3, 1997 CanLII 317 (SCC), per Lamer CJ
    Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 SCR 286, 2005 SCC 44 (CanLII), per curiam
    Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), 2017 BCCA 63 (CanLII), per Saunders JA (3:0)
  10. PEI Reference, supra

See Also

Judicial Neutrality and Bias

General Principles

Obligation of Neutrality

The judge must be neutral. This requires that the judge should "confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions."[1]

Appearance of Impartiality

It is not sufficient that the courts simply be impartial, but rather they must appear to be impartial as well.[2]

The appearance of neutrality is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".[3]

Judge's Degree of Participation

Judge's are not expected to be "silent observers" in a trial.[4]

I judge can "enter the arena" for "the purpose of insisting the counsel move the case forward".[5]

A judge can participate in legal debate, challenge counsel's position and state preliminary views without creating a perception of bias.[6]

Conduct that involves the "[u]njustified reprimands of counsel, insulting and improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate and impatient behaviour may destroy the appearance of impartiality".[7]

Purpose of Neutrality

The justice system only works if it has "the respect and confidence of its society". That requires "trials that are fair" and that appear to be fair to the "informed and reasonable observer". [8]

Disqualification of Judges

The mere fact that a judge previously ruled against a litigant does not automatically disqualify them from future cases.[9] Such a history does not support an apprehension of bias.[10] Judges are presumed capable of disabusing themselves of the accused's history in their future judgement.[11]

The assessment of bias is highly fact specific.[12]

  1. R v Torbiak and Campbell (1974), 18 CCC (2d) 229 (Ont. C.A.), 1974 CanLII 1623 (ON CA), per Kelly JA, at pp. 230-231
  2. Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, per curiam, at para 66 ("the manifestation of a broader preoccupation about the image of justice [because] there is an overriding public interest that there should be confidence in the integrity of the administration of justice")
  3. R v Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259
  4. R v Potter; R. v. Colpitts, 2020 NSCA 9 (CanLII)}}, at [http://canlii.ca/t/j528d#par743 para 743
  5. R v Clarke, 2014 NSSC 431 (CanLII), per Coady J, at para 34
  6. R v Baccari, 2011 ABCA 205 (CanLII), per curiam
  7. Clarke, supra, at para 20 citing Canadian Judicial Council, "Ethical Principles for Judges", at p. 33
  8. R v RDS, [1997] 3 SCR 484, 1997 CanLII 324 (SCC), per Cory J
  9. Broda v Broda, 2001 ABCA 151 (CanLII), 286 AR 120, per curiam, at para 16
    R v Collins, 2011 FCA 171 (CanLII) per Mainville JA , at para 11 ("[t]he simple fact that judges render a judgment which is unfavourable to a party cannot in itself result in a conclusion of bias. Were it otherwise, no judgment could ever be issued. A reasonable apprehension of bias must be shown to exist either in the judgment itself, in the comportment of the judge or by some other means.")
    R v JNS, 2019 ABQB 557 (CanLII), per Mandziuk J
    R v Heisinger, 2007 NWTTC 11 (CanLII) per Schmaltz J, at para 6 ("The case law is clear: an accused having appeared previously before a judge will not require that the judge cannot preside on subsequent matters involving that accused. This applies whether or not an accused appeared as an accused, a party, or a witness, and whether or not credibility findings were made.")
  10. Alberta Health Services v Wang, 2018 ABCA 104 (CanLII), per Slatter JA, at para 9 ("... Making decisions is the essence of the judicial function, and a reasonable person, properly informed, would not conclude that a judge would have a bias towards any one party just because that party was unsuccessful on one particular application.")
  11. R v Bolt, 1995 ABCA 22 (CanLII), per Russell JA, at para 2 ("… It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused. We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them…")
  12. R v Potter; R. v. Colpitts, 2020 NSCA 9 (CanLII)}}, at [http://canlii.ca/t/j528d#par742 para 742
    Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), per Abella J (complete citation pending)

Reasonable Apprehension of Bias

See Also

Reasonable Apprehension of Bias

General Principles

See also: Judicial Neutrality and Bias and Reasonable Person Test

A judge must not only be unbiased but also appear unbiased.[1] A judgement of a court cannot be valid where there is a reasonable apprehension of bias.

Burden and Standard of Proof

The burden of establishing bias is upon the claimant.[2]

Presumption of Integrity

There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.[3] This presumption arises from the "presumption of judicial integrity".[4]

The presumption of integrity is rebutted where there is "cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision".[5]

Test for Bias

The focus of consideration should not be on whether the accused was prejudiced, but whether he would reasonably consider that he did not have a fair trial or whether reasonable-minded people who watched the trial would have believed the trial was not fair.[6]

The test for reasonable apprehension of bias requires the reviewing judge to consider whether a reasonable person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that ... judges swear to uphold" would apprehend that there was bias.[7] It has also been phrased as requiring that "a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias."[8]

An apprehension of bias triggered by allegedly improper cross-examination requires that the court consider whether the "improperly questions" would lead a fully informed person to reasonably conclude the court's ability to decide the case to be impaired.[9]

"Cogent evidence" is required to overcome the presumption.[10]

Circumstances

Where a judge has made findings of fact on sentencing a co-accused for an offence may give rise to an apprehension of bias that would require the judge to withdraw.[11]

The fact that the applicant lost a motion or hearing before the judge, regardless of the similarity of the case, does not preclude the judge from judging the new issue.[12]

A judge referring to the accused as "Mr. Guilty" before a jury will not on its own be sufficient to create an apprehension of bias.[13]

A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.[14]

A judge sighing at an accused with an extended record whom the judge had previously represented and calling him by his first name is not enough.[15]

Procedure

An application for recusal of a judge must be made before the judge against whom bias is alleged.[16]

Appeals
See also: Appeals

A reasonable apprehension of bias is grounds for appeal under either s. 686(1)(a)(i) or (iii) for unreasonable verdict or miscarriage of justice. There is a presumption to judicial integrity. Thus, there needs to be substantial grounds and cogent evidence to support an apprehension.[17]

  1. R v Sussex Justice, Ex Parte McCarthy [1923] All ER Rep 233 ("Not only must justice be done, it must also be seen to be done")
  2. R v Slaney, 2013 NLCA 70 (CanLII), per Barry JA, at para 7
    Miglin v Miglin, 2003 SCC 24 (CanLII), per Bastarache and Arbour JJ, at para 26
    R v RDS, 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J, at para 114
  3. R v Pepe, 2013 ONSC 643 (CanLII), per MacDonnell J, at para 11
    Malton v Attia, 2016 ABCA 130 (CanLII), per curiam
  4. Malton v Attia, ibid., at para 82 ("There is a presumption of judicial impartiality, which must be displaced by the appellants. The threshold is a high one, and properly so.")
  5. R v Arnout, 2015 ONCA 655 (CanLII), per curiam, at para 19
  6. R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207 (Ont. C.A.), per Martin JA, at p. 232
  7. RDS, supra, at para 111
  8. Miglin v Miglin, supra, at para 26
    Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369, per De Grandpre J(dissent) at 394-395
  9. R v Mallory, 2007 ONCA 46 (CanLII), per curiam, at para 318
    Yukon Francophone School Board v Yukon (Attorney General), 2015 SCC 25 (CanLII), per Abella J, at para 37
  10. RDS, supra, at paras 113, 116, 117
    Committee for Justice and Liberty, supra, at p. 395 ("The grounds for [an] apprehension [of bias] must...be substantial")
  11. R v Hayes and Lowe, 2009 NLTD 114 (CanLII), per Dymond J
  12. Broda v Broda, 2001 ABCA 151 (CanLII), per curiam, at para 16
  13. R v Wilson, 2013 ONCA 222 (CanLII), per curiam, at paras 5 to 8
  14. R v Colpitts, 2014 NSSC 431 (CanLII), per Coady J, at para 18
    R v LL, 2013 ABQB 531 (CanLII), per Thomas J, at paras 29 and 31
  15. R v Lapointe, 2010 NBCA 63 (CanLII), per Robertson JA
  16. R v Doung, 1998 CanLII 14950 (ON SC), (1998), 129 CCC (3d) 430 (Ont. C.J. (Gen. Div.)), per Smith ACJ
  17. R v Lupyrypa, 2011 ABCA 324 (CanLII), per curiam, at para 6
    R v S(RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J, at para 142
    Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, per curiam, at paras 57 to 60, 76 to 78

Functus Officio

General Principles

The doctrine of "functus officio" (Latin for “having performed his or her office”) determines when the judge no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished.[1]

A judge has jurisdiction over an outstanding charge up to the point where the charge has been resolved by way of a stay, withdraw, dismissal, acquittal, or sentencing. The doctrine of functus officio refers to the principle that a court no longer has jurisdiction to change any decisions once a charge has reached its ultimate conclusion.

In the case of a conviction being entered, the judicial role of the judge ends once a sentence has been imposed. After that, any changes to or issuance of orders are "ministerial or administrative act[s]".[2]

This common law rule states that the final judgement of a court cannot be reopened. [3] The power to review a decision is transferred by the Judicature Act to the appellate division.

This rule only applies to judgments that have been drawn up, issued and entered.[4]

The purpose of the doctrine is to provide finality of court judgments to allow for potential review by an appellate level of court.[5]

A court has limited power to reconsider or vary judgments so long as it is not functus.[6]

  1. R v E(J), 2013 ONCJ 247 (CanLII), per Nakatsuru J, at para 17
    Chandler v Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, per Sopinka J, at para 19
  2. R v Melvin, 2005 NSSC 368 (CanLII), per Murphy J, at para 13
    R v Fuller, [1969] 3 CCC 349 (Man. C.A.)(*no CanLII links)
  3. originates from Re St. Nazaire Co. (1879), 12 Ch. D. 88
  4. Chandler v Alberta association of architects, supra
    R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J , at para 29
  5. Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, per Iacobucci and Arbour JJ, at para 79
  6. Adams, supra , at para 29

Timing of Conclusion

It is said that a court is functus if and only if "the duties and functions of the [court’s] original commission have been fully accomplished"[1]

A trial judge sitting without a jury is functus officio only after he has imposed his sentence.[2]

In a judge-alone case, the judge becomes functus when he "endorses the indictment".[3]

An intermittent jail sentence cannot be varied by the sentencing court to a non-intermittent.[4] There is some authority suggesting that the court may vary the entry and exit times of the intermittent sentence based on the power of the court to control its own process.[5]

A judge is not fuctus simply by reason that he has given a decision for conviction. In certain circumstances, the judge may hear further evidence on an issue raised in trial after finding of guilt and has the option to reopen the case.[6]

An error made in making a SOIRA order of an illegal duration cannot be amended unless it was the judge's manifest intention to make an order of a lawful duration in which case the court has inherent jurisdiction to amend.[7]

A court will not be functus up until the Court enters an official judgement into the rolls.[8]

Where a mandatory order such as a DNA or 109 Weapons order was omitted there is some suggestion that the court may go back and remedy the omission.[9]

  1. Jacobs Catalytic Ltd. vs International Brotherhood of Electrical Workers, Local #353 2009 ONCA 749; 312 DLR (4th) 250, per Epstein JA, at para 60
  2. R v MacDonald, 1991 CanLII 2424 (NS CA), (1991), 107 N.S.R. (2d) 374, per Clarke CJ
  3. R v Malicia, 2006 CanLII 31804 (ON CA), per MacPherson JA, at para 16
  4. R v Germaine (1980) 39 NSR (2d) 177(*no CanLII links) , at para 5 - no jurisdiction to make intermittent to non-intermittent because not in text of 732
    R v Jules, [1988] BCJ 1605 (*no CanLII links)
  5. R v EK, 2012 BCPC 132 (CanLII), per Gouge J
    cf. R v Crocker, 2012 CanLII 42379 (NL PC), per Gorman J
  6. e.g. R v Boyne, 2012 SKCA 124 (CanLII), per Ottenbreit JA - judge heard disclosure arguments after conviction at trial
  7. R v DM, 2013 ONSC 141 (CanLII), [2013] OJ No 83 (S.C.J.), per Daley J
    R v E(J), 2013 ONCJ 247 (CanLII), per Nataksuru J
  8. R v Villeda, 2010 ABCA 410 (CanLII), per curiam
  9. e.g. R v Field, 2013 NSPC 92 (CanLII), per Scovil J

Exception

There are exceptions to this rule. The court may still interfere with a prior decision where:[1]

  1. where there had been a slip in drawing it up, and,
  2. where there was an error in expressing the manifest intention of the court

A error on the notation of a jury verdict by a judge may be corrected if spotted shortly after the verdict is rendered.[2]

However where the error correction is "in reality" a "reconsideration of the verdict (or sentence}" then it is prohibited.[3] It is also in error "where issues of unfairness or injustice to the accused or reasonable apprehension of bias arise.”[4]

Administrative Amendments

The judge may make corrections to warrants of committal as an administrative act through the clerk of the court.[5]

  1. Chandler v Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, per Sopinka J
  2. R v Burke, 2002 SCC 55 (CanLII), [2002] 2 SCR 857, per Major J
  3. R v Krouglov, 2017 ONCA 197 (CanLII), per Epstein JA, at para 40
  4. Krouglov, ibid., at para 40
  5. R v Melvin, 2005 NSSC 368 (CanLII), per Murphy J, at para 14
    Ewing v Warden of Mission Institution (1994), 1994 CanLII 2390 (BC CA), 92 CCC (3d) 484, per Ryan JA - regarding warrants of committal

See Also

Role of the Victim and Third Parties

Introduction

The victim of crime is not generally a party to criminal proceedings beyond their role as a witness.

Before the finding of guilt, a victim shares the same role as a member of the public or a witness in the proceedings. They can only become a party to proceedings in the limited situations such as:

  • An application for third party records, where the records relate to that person;
  • An application on the part of the Crown or victim for the use of any number of testimonial aids;
  • An application on the part of the Crown or victim for a publication ban identifying the victim; or
  • An application of the victim for a peace bond.

Once there is a finding of guilt, the victim is primarily entitled to participate by way of:

  • a victim impact statement at sentencing;
  • a request for restitution at sentencing;
  • a victim impact statement in a parole ineligibility reduction hearing; and
  • a victim impact statement in a Review Board hearing for persons determined to be not criminally responsible due to mental disorder.

The victim is entitled to notice of proceedings in certain circumstances. Notice may include:

  • notice of release conditions when accused is granted bail;
  • notice of right to file restitution at sentencing;
  • notice of right to file a victim impact statement at sentencing;
  • notice on request of dispositions from a Review Board hearing relating to an offender found "not criminally responsible"; and
  • notice of a "high risk" designation and right to file a victim statement on a review board hearing relating to an offender found "not criminally responsible".

Under ss. 26(1) and 142(1) Corrections and Conditional Release Act requires Corrections Canada and the Parole Board to provide victims of crime with details on the offender. Certain of this information is released on a "case-by-case basis".

Complainants and Victims Defined

See also: Criminal Code and Related Definitions

s. 2
...
“complainant” means the victim of an alleged offence;
...
“victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5 [procedure at disposition hearing], 722 [victim impact statements] and 745.63 [hearing before a jury], a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.

...
R.S., 1985, c. C-46, s. 2; ... ; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12.
[annotation(s) added]

CCC

While "victim" encompasses alleged victims, it is considered "improper" for use in court as it is "obnoxious to the presumption of innocence". The use of the term pre-conviction may be in violation of the right to a presumption of innocence.[1]

  1. R v Villota, 2002 CanLII 49650 (ON SC), per Hill J, at para 79

Notices

Bail

For any order relating to bail that is made under s. 515, a victim of the offence charged can request a copy of the order.

515
...

Copy to victim

(14) If an order is made under this section, the justice shall, on request by a victim of the offence, cause a copy of the order to be given to the victim.
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20; 2018, c. 16, s. 218; 2019, c. 25, s. 225.

CCC

NCR/Fitness

Under s. 674.5(5.1) and (5.2), a victim is entitled to notice on request of any disposition hearings relating to an NCR/Fitness findings and further notice of discharge and accused's intended place or residence.[1]

Under s. 674.5(13.3) to (15.3), a victim is entitled to notice and to file a statement with the court should a review board make a finding of "high risk".[2]

Notice to Victim of Plea Deal

Under s. 606(4.1), Judges are required after accepting the guilty plea for a serious personal injury offence to inquire with the Crown attorney whether "reasonable steps" have been taken to "inform the victims" of the agreement. Failing to take reasonable steps before the guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea."

Under s. 606(4.2), judges are required after accepting a guilty plea for an indictable offence with a maximum penalty no less than 5 years to inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps before the guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea."

606.
...

injury offences

(4.1) If the accused is charged with a serious personal injury offence, as that expression is defined in section 752 [costs to successful party in case of libel – how recovered], or with the offence of murder, and the accused and the prosecutor have entered into an agreement under which the accused will enter a plea of guilty of the offence charged — or a plea of not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence — the court shall, after accepting the plea of guilty, inquire of the prosecutor if reasonable steps were taken to inform the victims of the agreement.

Inquiry of court — certain indictable offences

(4.2) If the accused is charged with an offence, as defined in section 2 of the Canadian Victims Bill of Rights, that is an indictable offence for which the maximum punishment is imprisonment for five years or more, and that is not an offence referred to in subsection (4.1) [inquiry of court  – murder and serious personal injury offences], and the accused and the prosecutor have entered into an agreement referred to in subsection (4.1) [inquiry of court  – murder and serious personal injury offences], the court shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement.

Duty to inform

(4.3) If subsection (4.1) [inquiry of court  – murder and serious personal injury offences] or (4.2) [inquiry of court  – certain indictable offences] applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.

Validity of plea

(4.4) Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.
...
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49; 2015, c. 13, s. 21.
[annotation(s) added]

CCC

Representation of Victims

Acting on victim’s behalf

2.2 (1) For the purposes of sections 606 [pleas], 672.5 [Procedure at review board], 715.37 [remediation agreement], 722 [victim impact statements], 737.1 [restitution] and 745.63 [judicial review of parole ineligibility], any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf:

(a) the victim’s spouse, or if the victim is dead, their spouse at the time of death;
(b) the victim’s common-law partner, or if the victim is dead, their common-law partner at the time of death;
(c) a relative or dependant of the victim;
(d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; and
(e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.
Exception

(2) An individual is not entitled to act on a victim’s behalf if the individual is an accused in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not criminally responsible on account of mental disorder or unfit to stand trial in respect of that offence.

2015, c. 13, s. 4; 2018, c. 12, s. 403.

CCC

Complainants in Sexual Offences

See also: Prior Sexual History and Production of Records for Sexual Offences

The complainant has standing to participate in trial voir dires relating to the use of evidence of the complainant's prior sexual history and the access to the complainant's personal records.

Under s. 278.94(2) and s. 278.94(3) the complainant has a right to make submissions and be represented by counsel.[1] This right under s. 278.94 includes the right to cross-examine any witness called relating to the protected personal information.[2]

  1. R v Boyle, 2019 ONCJ 253 (CanLII), per Doody J
  2. Boyle, ibid., at para 17

Victim Impact Statement

Victims Bill of Rights

As of August 2013, the Federal Government is in a consultation phase before enacting a Victims' Bill of Rights.

Young Offenders

A victim of a young offender has a right to be informed by the police, Attorney General, or victim services of "the identity of the young person and how the offence has been dealt with."

Victim’s right to information

12 If a young person is dealt with by an extrajudicial sanction, a police officer, the Attorney General, the provincial director or any organization established by a province to provide assistance to victims shall, on request, inform the victim of the identity of the young person and how the offence has been dealt with.

Intervenors

See also: Appeal Procedure#Intervenors

Generally, only those who are parties to a criminal proceeding can participate.[1] For criminal matters, there is a risk that by permitting intervention it runs the risk of creating unfairness by requiring the accused to face two prosecutors.[2] Consideration should be given on the purpose and usefulness of intervention.[3]

  1. R v Fraser, 2010 NSCA 106 (CanLII), per Beveridge JA, at para 7 ("I would venture it is trite to say that as a general principle in our adversarial system of justice only the actual parties to the litigation may make written or oral submissions or otherwise participate in legal proceedings before any court or tribunal.")
  2. Fraser, ibid., at para 7 ("Where the proceeding is criminal, there is a heightened concern about the fairness of permitting intervention lest the accused end up, in effect, facing two prosecutors...")
    see also R v Finta (1990), 1990 CanLII 6824 (ON CA), 1 O.R. (3d) 183 (C.A.), per Morden ACJ
    R v Neve (1996), 1996 ABCA 242 (CanLII), 108 CCC (3d) 126 (Alta.C.A.), per Irving JA
    R v BP, 2010 ABQB 204 (CanLII), per Strekaf J
  3. R v KAR (1992), 1992 CanLII 4829 (NS CA), 116 N.S.R. (2d) 418, per Chipman JA, at paras 23 to 25
    Fraser, supra, at para 10

See Also

Other Parties

Disclosure

General Principles

See also: Principles of Fundamental Justice

The Crown must disclose all materials and information that is in its possession or control that is not clearly irrelevant, regardless of if the evidence is to be called at trial or is inculpatory or exculpatory.[1]

The right to disclosures premised upon (1) the right to know the case to meet and (2) the right to make full answer in defence of an offence charged.[2]

Purpose

The right to disclosure is founded in the principle of fair play between parties[3] as well as the right to make full answer and defence. [4]

When the Crown receives evidence it is not information that it holds in trust for the witness, rather it is "property of the public, to ensure that justice is done."[5]

The right to disclosure is "among the most important and fundamental rights guaranteed to an accused in the criminal process".[6]

The right is guaranteed by the right to full answer and defence under s. 7 of the Charter.[7]

There is also a common law duty to provide "full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials".[8]

The obligation also arises from "the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the 'property' of the Crown, but is rather 'the property of the public to be used to ensure that justice is done'"[9]

This right is found codified under s. 650(3) and s. 802 of the Criminal Code which state:

s.650
...

To make defence

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12.

CCC

Right to make full answer and defence

802. (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.
...
R.S., c. C-34, s. 737.

CCC

The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must "take reasonable step to inquire about ...relevant information".[10]

The duty to make disclosure creates a duty upon the crown to obtain the disclosure from the police and, likewise, the police have a corresponding duty to provide disclosure to the crown. [11]

These obligations are jointly held by both Crown and police.[12]

The "Stinchcombe disclosure regime" only applies to "material relating to the accused’s case" that are "in the possession or control" of the Crown.[13]

When confronted by a "pure fishing expedition", the Crown has no obligation to discover or disclose records.[14]

Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to first-party disclosure.[15]

The right does not distinguish between inadmissible and admissible evidence.[16]

The Crown should advise a self-represented accused of the right to disclosure. The judge should not take a plea until satisfied that the accused has been notified.[17]

Case-to-Meet Principle

The doctrine of the "case-to-meet" is a fundamental requirement of a fair trial. It is protected by the common law and the Constitution.[18]

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) at 339 and 343 (Stinchcombe #1)
    See also Stinchcombe #1, ibid., at para 20 ("[w]hile the Crown must err on the side of inclusion, it need not produced what is clearly irrelevant") R v Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 SCR 754, per Sopinka J (7:0) at 755 (Stinchcombe #2)
    R v Wickstead, 1997 CanLII 370, [1997] 1 SCR 307, per Sopinka J (9:0)
    R v McNeil, 2009 SCC 3 (CanLII), per Charron J (8:0), at para 17 (the crown need not produce records that have no "reasonable possibility" of relevance)
    R v Girimonte, 1997 CanLII 1866 (ONCA), per Doherty JA (3:0), at pp. 41 to 42 ("The Crown must disclose to the defence all information whether inculpatory or exculpatory under its control, unless the information is clearly irrelevant or subject to some privilege")
  2. R v Bottineau, 2005 CanLII 63780 (ONSC), per Watt J, at para 31
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SR 668, per McLachlin and Iacobucci JJ (7:1), at pp. 682 to 683 ("the right of an accused ot make full answer and defence is a pillar of criminal justice on which we rely heavily to prevent the conviction of the innocent... The Crown's constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused's ability to raise a reasonable doubt concerning his innocence"
  3. R v Lemay, 1951 CanLII 27 (SCC), [1952] 1 SCR 232, per Locke J (8:1)
    R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16, per Kerwin J (7:2)
  4. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J (5:4), (stated disclosure by the crown is "one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.")
    Girimonte, supra
  5. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) , at para 12
  6. R v Floria, 2008 CanLII 57160 (ON SC), per Croll J, at para 19
  7. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at p. 742
    R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J, at p. 106 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. ")
  8. R v O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), per L'Heureux‑Dubé J (6:3)
  9. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA (3:0), at para 33
    R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, [1991] S.C.J. No. 83, per Sopinka J (7:0), at p. 333 [SCR]
  10. Darwish, supra, at para 31
    R v LAT, 1993 CanLII 3382 (ON CA), per Lacourcière JA (3:0) ("The Crown has a duty to obtain from the police -- and the police have a corresponding duty to provide to the Crown -- all relevant information and material concerning the case.")
    R v Vokey, 1992 CanLII 7089 (NL CA), per Goodridge CJ ("The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel.")
  11. LAT, supra
  12. R v McNeil, 2009 SCC 3 (CanLII), per Charron J (8:0), at para 14
  13. McNeil, supra, at para 22
  14. R v Gingras, 1992 CanLII 2826 (ABCA), per curiam
  15. R v Thompson, 2009 ONCA 243 (CanLII), per Goudge JA (3:0)
    R v Schertzer, 2011 ONSC 65 (CanLII), per Pardu J, at para 41
  16. Bottineau, supra, at para 31
  17. Stinchcombe, supra, at p. 343 ("In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of his right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done.")
  18. R v Heaton, 2014 SKCA 140 (CanLII), per Jackson JA (3:0), at para 24
    R v Underwood, 1998 CanLII 839 (SCC), [1998] 1 SCR 77, per Lamer CJ (5:0), at para 5

First-Party Disclosure Principles and Obligations ("Stinchcombe")

The Martin Committee produced a report considering the decision. The report detailed the principles of the case, at p. 146:

  1. The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction, but, rather, are the property of the public to ensure that justice is done.[1]
  2. The general principle is that all relevant information must be disclosed, whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information, whether it is inculpatory or exculpatory, and must produce all information which may assist the accused. If the information is of no use, then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion, which is reviewable by the trial judge.

Satisfaction of the obligation to disclosure must be read in context and does not have to be "perfect".[2]

Identity of Crown

In the context of all first party or Stinchcombe disclosure issues, the term "Crown" refers only to the "prosecuting crown" and not all crown entities including police. All Crown entities other than the "prosecuting crown" are considered "third-parties". [3]

Disclosure to Crown

The obligations upon the Crown are not reciprocal and there is no obligations upon the defence to disclose anything prior to trial.[4]

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0), at para 12
  2. R v Dunn, [2009] OJ No 5749, 2009 CanLII 75397 (ON SC), per Boswell J ("Disclosure must be considered within this context. It does not have to be perfect, but it does have to be fundamentally fair and sufficient to allow an accused to exercise his or her constitutional right to make full answer and defence.")
    R v Eddy, 2014 ABQB 164 (CanLII), per Acton J, at para 177
  3. Elkins, supra, at para 27
    R v Jackson, 2015 ONCA 832 (CanLII), per Watt JA, at para 80
    Quesnelle, supra, at para 11
    McNeil, supra, at para 22
  4. R v Mitchell, 2018 BCCA 52 (CanLII), per Fisher JA, at para 51

Preservation of Evidence

Stinchcombe obligation also requires the Crown to preserve all relevant evidence.[1]

At common law, there is a principle of “Omnia praesumuntur contra spoliatorem” that suggests that a party who destroys documents must rebut the presumption that the documents were unfavourable to their case.

  1. R v La, 1997 CanLII 309 (SCC), per Sopinka J, at para 17
    R v FCB, 2000 NSCA 35 (CanLII), per Roscoe JA (3:0), at para 10

Sufficiency for Election and Plea

Initial disclosure should be provided before the accused should be required to make election and plea.[1] This is so that the accused can make an informed decision at "all fundamental steps that affect his rights in a crucial way".[2] Many tactical factors can come into play that would influence the choice of manner of trial.[3]

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0), at pp. 342-3
    R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0), at paras 19 to 20
    R v Girimonte (1997), 1997 CanLII 1866 (ON CA), 37 O.R. (3d) 617, 121 CCC (3d) 33 (Ont.C.A.), per Doherty JA (3:0), ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in Stinchcombe, supra, at p. 343 [SCR], at p. 221 [CRR], at p. 14 [CCC], the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process")
    R v NNM, 2006 CanLII 14957 (ON CA), per Juriansz JA (3:0), at para 37 ("Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. .”")
    R v Kovacs-Tator (2004), 2004 CanLII 42923 (ON CA), 192 CCC (3d) 91, per curiam (3:0), at para 47 (Ont. C.A.) ("the Crown is not obliged to disclose every last bit of evidence before a trial date is set")
  2. Egger, supra, at paras 19 to 20
    R v Lahiry, 2011 ONSC 6780 (CanLII), per Code J, at para 114 ("It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.")
  3. e.g. R v Black, 1998 CanLII 5042 (NS SC), per Saunders J- judge lists tactical factors that come into play in making election

Delaying and Withholding Disclosure

The entitlement to disclosure "is neither absolute or unlimited".[1]

Where disclosure is delayed or withheld is it the burden of the Crown to justify it.[2]

Delayed Disclosure

The Crown has a limited discretion to delay disclosure in "rare circumstances" in order "to protect the integrity of an ongoing investigation".[3] Or where it is necessary to protect the safety of certain witnesses.[4]

The Crown also has discretion to determine the most effective manner in which to produce disclosure.[5]

A great amount of deference should be given to the manner and timing of disclosure.[6]

The defence'sc choice to have a preliminary inquiry before setting a matter for trial cannot be used as an excuse for delay of disclosure.[7]

Withheld Disclosure

The most obvious reasons for withholding disclosure in where it is (1) "clearly irrelevant"; (2) the information was privileged; (3) disclosure of the information was governed by law; and (4) premature disclosure may result in harm to an individual or public interest.[8]

Where any disclosure is withheld, the Crown must make it know that they are in possession of those records.[9]

  1. R v Basi, 2009 SCC 52 (CanLII), [2009] 3 SCR 389, per Fish J (7:0), at para 1
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 18
  2. R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0), at p. 466
  3. Stinchcombe, supra, at p. 339
  4. R v Vokey, 1992 CanLII 7089 (NL CA), per Goodridge CJ
  5. Stinchcombe, supra, at p. 339
    R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at para 21
    R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0)
    R v Durette, [1994] 1 SCR 469, 1994 CanLII 123 (SCC), per Sopinka J (4:3)
  6. Stinchcombe, supra, at p. 340
  7. R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0)
  8. McNeil, supra
  9. R v Piaskowski, 2007 MBQB 68 (CanLII), per Sinclair J, at para 84 ("The Crown’s disclosure obligation requires that it must make known to an accused all relevant materials in its possession or under its control.")

When the Obligations Exist

The Crown will only be subject to disclosure obligation where there is evidence in its possession or control and it is relevant. This is will only apply once the defence seeks to exercise its right to disclosure.

Information in possession of the government but not discovered in the course of the investigation is not governed by Stinchcombe. [1] Stincombe will generally only apply to the "fruits of the investigation". [2]

  1. R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J, at para 24
  2. Elkins, ibid., at para 25

Defence Engaging Disclosure Obligations

The right to disclosure is triggered once defence counsel requests it.[1]

The obligation will exist for all evidence for which there is a "reasonable possibility" that the evidence will used in making full answer and defence.[2]

The duty to disclose is engaged once the accused requests information from the crown any time after the charge has been laid. [3] If the defence fails to raise the issue and remains passive, they are less able to claim that non-disclosure affected trial fairness.[4]

Duty of Diligence

The defence has an obligation to diligently pursue disclosure by actively seeking and pursuing disclosure once they become aware or ought to have been aware of it.[5] This means the defence should bring any failure to disclose to the Court's attention at the earliest opportunity so that the judge can remedy any trial unfairness.[6] The defence should review the disclosure and identify anything missing as soon as possible.[7]

The defence cannot claim a lack of disclosure affected trial fairness when they remain passive a tactical decision or due to lack of diligence.[8]

A failure to read the disclosure and discover defects cannot be used to support a finding that there was a Crown breach of the duty to disclose.[9]

Fishing Expeditions

The defence should not engage in disclosure requests that amount to mere "fishing expeditions" as they tend to "undermine the good faith and candour which should govern the conduct of counsel."[10]

  1. R v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC), per Sopinka J (7:0),, at p. 342 ("The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge.")
    R v O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), per Lamer CJ and Sopinka J (dissenting on other issues), at para 5 ("The Crown's duty to disclose information in its possession is triggered when a request for disclosure is made by the accused")
    R v Anderson, 2013 SKCA 92 (CanLII), per Ottenbreit JA (3:0), at para 17
    ("The obligation to disclose will be triggered by a request by or on behalf of the accused")
    R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0), ("The Crown's obligation to disclose is triggered by a request for disclosure from counsel for an accused.")
  2. R v Chaplin, [1995] 1 SCR 727, 1995 CanLII 126 (SCC), per Sopinka J (9:0), at paras 26 to 27 ("The Crown's disclosure obligations are triggered when there is a reasonable possibility the evidence wil lbe useful to the accused in making full answer and defence.")
    see also R v Taillefer, 2003 SCC 70 (CanLII), per LeBel J (9:0), at para 61
  3. Stinchcombe #1, supra, at p. 342
  4. R v Dixon, 1998 CanLII 805 (SCC), per Cory J (5:0), at para 38 ("Whether a new trial should be ordered on the basis that the Crown’s non‑disclosure rendered the trial process unfair involves a process of weighing and balancing. If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial. ...")
  5. Stinchcombe #1, supra, at p. 341
    Dixon, supra, at para 37 ("In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown’s non‑disclosure affected the fairness of the trial process. ... The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.")
  6. Stinchcombe, supra at 341
  7. R v Barbour, 2017 ABCA 231 (CanLII), per curiam, at para 32 ("Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing. The defence must 'exercise due diligence in actively seeking and pursuing Crown disclosure'")
    Dixon, supra, at para 37
    Stinchcombe, supra, at p. 341
  8. Dixon, supra, at para 38
    Barbour, supra, at para 32 ("If the Crown disclosure, or the facts of the case, make it apparent that third parties may have records that will assist in making answer and defence, the accused must act diligently in obtaining that information or in bringing an O’Connor application. The court will not be sympathetic where a tactical decision was made not to pursue known documents")
  9. Barbour, supra, at para 32
  10. Girimonte, supra

Burden

Once the right to disclosure has been invoked by the Defence the onus is upon the Crown to comply with the obligation. The Crown may refuse to disclose certain information, but has the burden of proving why full disclosure should not be applied.[1]

Bases for Refusing Disclosure

The information will not be considered disclosure where it is: [2]

  1. Irrelevant
  2. Not in the control of the Crown
  3. Privileged

Satisfying any one of these requirements will eliminate any disclosure obligations upon the Crown. The Crown may then refuse the request.[3]

Standard of Proof

The grounds to disclose must be established on a balance of probabilities.[4]

Crown Disputing Relevance

If the crown disputes the existence of any particular material, the applicant "must establish the basis that could enable to court to conclude that further material exists that is potentially relevant. The existence of the disputed material must be sufficiently identified, not only to reveal its nature but also to permit the court to conclude that it made meet the test required for prosecutorial disclosure".[5]

The Crown must satisfy the court that the evidence sought is "clearly irrelevant".[6]

  1. R v Durette, 1994 CanLII 123 (SCC), [1994] 1 SCR 469, per Sopinka J, at para 44
    In contrast, if the disclosure is third-party records, the burden is upon the accused.
  2. Chaplin, supra, at para 25 (The Crown "must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged")
    see also R v Bottineau, 2005 CanLII 63780 (ON SC), [2005] OJ No 4034, per Watt J, at para 45
  3. Stinchcombe, supra, at p. 339
    Stinchcombe #2, supra, at p. 755
  4. R v Dixon, [1998] 1 SCR 244, 1998 CanLII 805 (SCC), per Cory J (5:0) , at para 32
  5. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at paras 30 to 33
  6. R v Gubbins, 2018 SCC 44 (CanLII), per Rowe J (8:1), at para 29
    R v Stipo, 2019 ONCA 3 (CanLII), per Watt JA, at para 79
    In comparison the standard for third party disclosure is "likely relevant" (see Stipo, at para 80)

Possession or Control

See also: Disclosure of Third Party Records

Just because a record is in the possession of a Crown entity, does not amount to possession or control.[1]

The law cannot impose an obligation of the crown in relation to materials that "does not have or cannot obtain". [2]

Where evidence is not in the control of the Crown it may be the subject of a common law third party records application, also known as an "O'Connor Application".[3]

In an O'Connor application, the Defence must show that the evidence is "likely relevant".[4]

The prosecuting Crown has an obligation to "make reasonable inquiries of other Crown entities and other third parties" of whether they may be in possession of relevant evidence.[5]

  1. R v NcNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0)
    R v Oleksiuk, 2013 ONSC 5258 (CanLII), per James J, at para 26
  2. R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J, at para 25
    McNeil, supra, at para 22
  3. R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 (SCC), per L'Heureux‑Dubé J
    McNeil, supra
  4. O'Connor, supra
  5. McNeil, supra, at paras 13, 49

Relevance

Not all information in possession of police must be disclosed. It must only be "relevant" evidence.[1] The "threshold question in any instance of non-disclosure is whether the evidence was relevant"[2]

The threshold of relevancy is quite low. The relevancy exists where there is "a reasonable possibility of the information being useful to the accused in making full answer and defence".[3] Full answer and defence is engaged where the evidence can be used:[4]

  1. in meeting the Crown's case;
  2. "advancing a defence";
  3. "otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence".

The scope of relevancy is "broad" and will include materials that "may have only marginal value to the ultimate issues at trial."[5] The Crown "must err on the side of inclusion" when deciding whether to include the materials in disclosure.[6]

Relevance is not limited solely to inculpatory evidence nor only evidence that the Crown would adduce at trial. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the Defence. All possible exclupatory evidence must be provided as well, however, this obligation does not extend to a duty to examine the exculpatory evidence.[7]

Relevance can be related to the usefulness for defence as far as decisions on conducting the defence including whether to call evidence.[8]

Relevant evidence is not limited to admissible evidence and can include that evidence which is not inadmissible at trial.[9]

Limitations on Relevance

Relevancy however can be limited by the need for a "realistic standard of disclosure consistent with fundamental fairness."[10] It must still permit the sustem to be "workable, affordable and expeditious". It should not be so broad as to include "anything that might conceivably be used in cross-examination".[11] It is not meant to include "every scintilla of information" that may have utility to the defence.[12]

There is some authority to suggest that when the relevancy only relates to a voir dire on admissibility of evidence, and not the trial itself, the burden is upon the accused.[13]

Refusal to disclose clearly irrelevant disclosure

The burden is upon the Crown to prove that the information was "clearly irrelevant".[14]

Refusal to disclose is reviewable by the trial judge.[15]


  1. R v Banford, 2011 SKQB 418 (CanLII), [2012] 3 W.W.R. 835, per McLellan J, at para 5 citing Stinchcombe, among others
  2. R v Banford, 2010 SKPC 110 (CanLII), 363 Sask. R. 26 (SKPC), per Toth J, at para 13
  3. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 14 (includes “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.”)
    R v Taillefer, [2003] 3 SCR 307, 2003 SCC 70 (CanLII), per LeBel J (9:0), at para 60
    R v Chaplin, 1995 CanLII 126 (SCC), (1995) 96 CCC (3d) 225 (SCC), per Sopinka J (9:0), at p. 236
    R v Dixon, 1998 CanLII 805 (SCC), (1998) 1 SCR 244, per Cory J (5:0), at paras 20 to 22
    R v Girimonte, 1997 CanLII 1866 (ONCA), per Doherty JA (3:0), at pp. 41 to 42 (information is relevant if "there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence.")
    R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0), at p. 467
    R v Banford, 2011 SKQB 418 (CanLII), per McLellan J, at para 5
  4. Egger, supra, at p. 467
    Dixon, supra, at paras 20 to 22
    R v Anderson, 2013 SKCA 92 (CanLII), per Ottenbreit JA (3:0)
  5. Dixon, supra, at para 23
  6. Chaplin, supra
  7. R v Daley, 2008 BCCA 257 (CanLII), [2008] BCJ No. 1341, per Lowry JA, at paras 13 to 15 and by the Ontario Court of Appeal in R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA (3:0)
    , 252 CCC (3d) 1, at paras 28 to 30 and 39 to 40 leave to SCC denied
  8. R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0), at p. 467 ("if it is of some use, it is relevant and should be disclosed ...This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.")
  9. R v Barbosa (1994), 92 CCC (3d) 131 (Ont. Gen. Div.), 1994 CanLII 7549 (ON SC), per Hill J, at p. 140
    R v Derose, 2000 ABPC 67 (CanLII), per Allen J
  10. O'Connor, supra, at para 194
  11. O'Connor, supra, at para 194
  12. O'Connor, supra, at para 194
  13. R v Ahmed, 2012 ONSC 4893 (*no CanLII links) - disclosure of source handler notes
    R v Cater, 2011 NSPC 86 (CanLII), per Derrick J, at para 26
  14. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 (SCC), per Sopinka J (7:0)
    R v Pena 1996 CarswellBC 2885(*no CanLII links) , at para 17
  15. Stinchcombe, supra, at p. 12

Privilege

See also: Privilege

Privileged materials can take many forms:[1]

  1. protection of persons from harassment or injury[2]
  2. protect informer privilege [3]
  3. protect confidential investigative techniques [4]
  4. protection of confidential information while an investigation is ongoing [5]
  5. Litigation Privilege, Crown work-product privilege
  6. statutory privilege such as under the Code and CEA

Any materials in control of the Crown that is claimed to be privileged cannot be compelled to disclose to either the defence or the court unless there are proper grounds. [6] The McClure threshold test determines the grounds which requires the materials could raise a reasonable doubt of guilt.[7] The threshold test requires:[8]

  1. there be no other source of the information sought;
  2. the accused cannot raise a reasonable doubt in any other way.

Materials that "may put at risk the security and safety of persons who have provided prosecution with information" is protected by informer privilege.[9]

Where the materials are privileged there is no need to address threshold relevance.[10]

Burden

Where the defence seek disclosure of claimed privileged materials, "the accused has the burden of demonstrating why privilege is wrongly claimed".[11]

Crown Counsel's Notes

Where the interview of Crown witnesses discloses new information to the Crown or police, any notes of counsel may be subject to disclosure.[12]

  1. e.g. R v Eddy, 2014 ABQB 164 (CanLII), per Acton J, at para 23
  2. see Stinchcombe #1, supra, at p. 336
  3. see Stinchcombe #1, supra, at p. 336
  4. Richards, 1997 CanLII 3364 (ON CA), per curiam
  5. R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0)
  6. R v Polo, 2005 ABQB 250 (CanLII), per Clackson J, at para 27
    R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at para 27
  7. McClure, supra, at para 27
  8. Polo, supra, at para 15
  9. R v Stinchombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0), at para 16
  10. R v Leipert, [1997] 1 SCR 281, 1997 CanLII 367 (SCC), per McLachlin J (9:0), at para 36
  11. R v Eddy, 2014 ABQB 164 (CanLII), per Acton J, at para 92
    See also R v Polo, 2005 ABQB 250 (CanLII), per Clackson J
  12. R v Reagan, [1991] N.S.J. No. 482(complete citation pending)
    R v Ladouceur (1992), B.C.J. No. 2854 (S.C.)(complete citation pending)
    R v O'Connor (1995), 103 C.C.C. (3d) 1(complete citation pending)

Duration of the Obligation

The obligation to provide disclosure only begins once charges have been laid. There is no right prior to that.[1]

The duty is engaged upon the request of the accused. It is continuous throughout the proceedings up to and including the trial. The Crown may object to the request on the basis that it is irrelevant, outside of their control, or otherwise privileged.[2] The burden is on the Crown to justify the refusal to disclose.

The duty to disclose is ongoing and so any new information received must also be disclosed.[3]

Once the Crown alleges that it has fulfilled the disclosure obligation it has no obligation to justify the "non disclosure of materials the existence of which it is unaware or denies." Unless the applicant is able to "establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant...".[4]

  1. R v Gillis, 1994 ABCA 212 (CanLII), per Fraser CJ (3:0), at para 7
  2. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0)
  3. Stinchcombe #1, supra, at p. 343
  4. Chaplin, supra, at p. 743

After Verdict

Fresh Evidence

The right to disclosure may not extend to the into a conditional sentence breach hearing as there is less of a right to full answer and defence.[1]

The obligation to disclose remains in effect through the appellate process.[2] This obligation covers any materials in the possession of the crown that "may reasonably assist the appellant in the prosecution of his or her appeal, subject to any privilege or overriding third-party privacy interest".[3]

There are some "reasonable parameters" around disclosure post-conviction. The court must be mindful that the "justice system does not become disproportionately overburdened" and cause delay in addressing the "more important issues".[4]

Where in applicant seeks further disclosure on appeal to support a fresh evidence application, he must establish that:[5]

  • There is a connection between "the request for production and the fresh evidence proposed, or in other words the applicant must show that there is a reasonable possibility that the material sought could assist on the application for fresh evidence"
  • There is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
  1. R v Sitaram, 2011 ONCJ 199 (CanLII), per Nakatsuru J
  2. R v Trotta, 2004 CanLII 60014 (ONCA), per Doherty JA (3:0)
    R v Meer, 2015 ABCA 163 (CanLII), per Veldhuis JA (alone)
  3. Trotta, supra, at para 25
    Meer, supra, at para 8
    R v Johnston, 2019 BCCA 107 (CanLII), at paras 56 to 61
  4. hznmd, supra, at para 64
  5. Trotta, supra, at para 23
    Meer, supra, at para 9

Timing of Disclosure

see also: Delayed Disclosure, above

Conceptually, Disclosure can be divided into three phases:[1]

  1. "Initial disclosure": evidence required before there can be an election of mode of trial;[2]
  2. "Intermediate disclosure": evidence required before a plea is entered; and
  3. "Final disclosure": all Disclosure must be provided prior to trial.

It is not always necessary to provide full disclosure prior to a preliminary inquiry as long as full disclosure is made early enough before trial so as not to violate the right to full answer and defence.[3] Where sufficient but incomplete evidence is disclosed, the defence are not entitled "to refuse to proceed to the next step or to set a date for trial".[4]

Consequence of Late Disclosure

Where the late disclosure does not amount to a Charter breach that would require a stay of proceedings, the judge can consider a mistrial, a refusal to admit the evidence or an adjournment.[5]

Witnesses Changing Evidence

Where the Crown learns of a recanting witness and provides immediate notice to the defence counsel on the night before the witness is to testify, it does not violate the right to full answer and defence.[6]

  1. R v Valdirez-Ahumada, 1992 CanLII 875 (BC SC), per unknown J
  2. See also R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0) ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure.")
  3. R v Nova Scotia Pharmaceutical Society, 1992 CanLII 4513 (NS SC), per A Boudreau J
    R v Biscette, 1995 ABCA 234 (CanLII), per Côté JA (2:1)
    R v Adam, 2006 BCSC 350 (CanLII), per Romilly J
  4. R v NNM, 2006 CanLII 14957 (ON CA), per Juriansz JA
  5. R v Barrette, 1976 CanLII 180 (SCC), [1977] 2 SCR 121, per Pigeon J
    R v Davis (1998), 1998 CanLII 18030 (NL CA), 159 Nfld & PEIR 273 (NLCA), per Green JA
  6. R v Buric, 1996 CanLII 1525 (ON CA), per Labrosse JA (2:1)

Sufficiency of Existing Disclosure

It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate.[1]

Experts

See Expert Evidence#Notice to Call Expert Evidence for details on sufficiency of disclosure summarizing the expert's evidence. A failure to provide sufficient disclosure in relation to the experts could result in a mistrial.[2]

  1. see below regarding "Where the Obligation Does Not Exist"
  2. e.g. R v BB, 2016 ABQB 647 (CanLII), per Pentelechuk J - motion for mistrial denied
    R v LAT, 1993 CanLII 3382 (ON CA), per Lacourcière JA (3:0) - new trial ordered for calling rebuttal witness without sufficient disclosure of rebuttal witness.

Duty to Inquire and Obtain Disclosure ("McNeil" Obligations)

See also: Disclosure of Third Party Records

In "appropriate cases", the Crown has an obligation "to make reasonable inquiries" with third-party state authorities who are believed to be in possession of threshold relevant materials.[1]

For the purpose of first-party disclosure obligations, the "Crown" refers to the "prosecuting Crown" only.[2]

It is not a valid argument to simply assert that the inquiry should be made because it is "easy".[3]

Threshold relevance

Where the evidence is “obviously relevant” he Crown must disclose unprompted.[4]

The test for McNeil record is “likely relevant” or “reasonably possible” relevance. McNeil, supra, at paras 43 and 44

Duty of Inquiry

Where an inquiry has failed the crown must notify the accused.[5]

The duty is engaged once the prosecuting Crown becomes aware of the relevancy of certain records.[6]

Example organizations

Relevant records held by Health Canada would be considered McNeil records that the Crown is obliged to seek out.[7]

This may include the provincial securities commission who are known to have undertaken a investigation related to the prosecution. [8]

  1. R v McNeil, 2009 SCC 3 (CanLII), per Charron J (8:0), at para 13
  2. R v Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 (CanLII), per Karakatsanis J (7:0)
    McNeil, supra
  3. R v Woods, 2015 ABPC 23 (CanLII), per Lepp J, at para 31 ("it is important to remember that the accused does not overcome the hurdle of providing evidence that the information sought actually exists and is relevant by showing only that the inquiry is easy to make. If it were otherwise, “easy inquiries” would quickly become the equivalent of first party disclosure and the authorities would suffer death by a thousand cuts.")
  4. McNeil, supra
  5. McNeil, supra
  6. McNeil
  7. R v King (No. 5), 2017 CanLII 15296 (NL SCTD), per Marshall J, at para 53
  8. R v Clarke, Colpitts and Potter, 2013 NSSC 386 (CanLII), per Hood J

Procedure For Enforcing Right

Where disclosure issues arise, the court should consider the issues as follows: [1]

  1. establish a violation of the right to disclosure;
  2. demonstrate on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose;
  3. discharge this burden by demonstrating that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process.
Jurisdiction

A preliminary inquiry judge has no jurisdiction to order the crown to provide disclosure.[2]

Only the trial judge may make an order directing the Crown to disclose information in its control.[3] Accordingly, a provincial court judge cannot order disclosure unless the mode of trial was by provincial court judge.

A preliminary inquiry judge has no power to order disclosure and is not a "court of competent jurisdiction" to make such an order.[4]

Where defence believe initial disclosure is insufficient for making election, the justice may adjourn the election to allow the accused to seek remedy from a superior court.[5]

Where a superior court is the trial court, it will be a "court of competent jurisdiction" under s. 24(1) of the Charter.[6]

A superior court should generally defer motions until the matter is before the trial court rather than still with the inferior court.[7]

In "unusual" or "exceptional" cases a superior court justice may exercise jurisdiction under s. 24(1) of the Charter to order disclosure while the matter is still before a preliminary inquiry judge.[8] The limited jurisdiction to order disclosure does not affect the Crown obligation to provide timely disclosure.[9]

Issues relating to the "manner of disclosure tend to fall within the category of exceptional cases".[10]

  1. R v Ginnish, 2014 NBCA 5 (CanLII), per Green JA (3:0) , at para 24
  2. R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA
  3. R v SSS, 1999 CanLII 15049 (ONSC), per Watt J, at para 34
  4. SSS, ibid., at para 36
    Girimonte, supra, at p. 43
  5. Girimonte, supra
  6. R v Mills, [1986] 1 SCR 863, 1986 CanLII 17 (SCC), per McIntyre J
    R v Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC), per Lamer J (superior courts have "constant, complete and concurrent jurisdiction" with respect to s. 24(1) of the Charter, even when the matter is still before an inferior court)
  7. R v Smith, [1989] 2 SCR 1120, 1989 CanLII 12 (SCC), per Sopinka J (9:0)
    Rahey, supra, at para 16 ("But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate.") cf. R v Blencowe, 1997 CanLII 12287 (ON SC), per Watt J - the superior court has "constant, complete and concurrent jurisdiction with the trial court for applications under Charter s. 24(1)"
  8. R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0) - CA dismisses appeal on disclosure order
    R v Mohammed, 2007 CanLII 5151 (ON SC), per Dawson J, at para 2 - relates to application while matter is before preliminary inquiry judge
    R v Hallstone Products Inc., 1999 CanLII 15107 (ON SC), per LaForme J
    R v Mincovitch, 1992 CanLII 7585 (ON SC), per A Campbell J
  9. Girimonte, supra
  10. Mohammed, supra, at para 2
    Hallstone, supra
    Blencowe, supra

Crown Disclosure Decisions

Review of Decisions

It is the Crown's decision to determine "what material is properly subject to disclosure to the defence".[1]

The decisions of Crown to disclosure certain information and not other is reviewable the trial judge.[2]

In exceptional circumstances any superior court of criminal jurisdiction may review the disclosure under s. 24(1) of the Charter.[3]

Remedy for improper disclosure decisions are "largely, but not exclusively, Charter based."[4]

  1. R v SSS, 1999 CanLII 15049 (ONSC), per Watt J, at para 33
    R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0), at p. 42
  2. SSS, supra}, at para 34
    Girimonte, supra, at p. 43
    R v Laporte (1993), 1993 CanLII 9145 (SK CA), 84 CCC (3d) 343 (Sask. C.A.), per Sherstobitoff JA
  3. SSS, supra, at para 34
    Stinchcombe, supra, at pp. 11 to 12
    R v Mohammed, 2007 CanLII 5151 (ON SC), per Dawson J, at para 2B
    Hallstone Products Inc., 1999 CanLII 15107 (ON SC), per LaForme J, at para 17
    R v Mincovitch, 1992 CanLII 7585 (ON SC), per A Campbell J ("The Supreme Court of Canada and the Court of Appeal have consistently preferred the trial court to resolve Charter applications because trial courts are best suited to resolve conflicting viva voce evidence and because of the great risk of delay and fragmentation of the trial process inherent in the likelihood of interlocutory appeals.")
  4. Girimonte, supra

Form and Types of Disclosure

Where the Obligation Does Not Exist

It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate or defend.[1]

  1. R v Eddy, 2014 ABQB 164 (CanLII), per Acton J, at para 137
    R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA (3:0), at paras 32 to 40
    R v Dias, 2010 ABCA 382 (CanLII), per curiam (3:0), at para 38

Vetting Disclosure

When documents are to be released for disclosure, the police and crown are permitted to vet the materials for the purpose of removing information that may not be disclosable. Types of information that can be validly redacted from the disclosure before going out to the defence include:

  1. clearly irrelevant information
  2. information tending to identify a confidential police source
  3. police investigative techniques
  4. advice that would be covered by solicitor-client privilege (either defence counsel or crown counsel)

See further details on Privilege section.

Restricting Access to Disclosure

Breach of Disclosure Obligation

To engage Stinchcombe the Applicant accused has the burden of proving that there was a "reasonable possibility" that his right to make full answer and defence was impaired by the Crown's actions.[1]

Not every failure to comply with Stinchcombe obligations will result in a Charter breach. There will no Charter breach if the failure "could not possibly affect the reliability of the result reached or the overall fairness of the trial process."[2]

Where relevancy is in dispute, the burden rests on the accused to prove on a balance of probabilities that breach of the Charter right to disclosure has been violated.[3]

Where a breach of the right to full disclosure is found it does not necessarily follow that the right to make full answer and defence was violated.[4] Where the right to make full answer and defence is not implicated, the usual remedy is either an adjournment or order of production.[5] In fact in general, where disclosure has not been given or is given late, the usual remedy is an adjournment.[6]

Where there is a failure on the part of the Crown to meet the Stinchcombe obligations, there is an obligation on the part of the defence to raise the issue.[7]

A failure to disclose will invoke s. 7 and 11(d) of the Charter.[8]

To establish a breach of s. 7 due to non-disclosure does not require that the claimant show actual prejudice.[9] However, a remedy under s. 24(1) to a breach to s. 7 or 11(d) of the Charter "will generally require a showing of actual prejudice to the accused's ability to make full answer and defence".[10]

When considered in the civil context, not all breaches of disclosure are equivalent.[11]

  1. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J
  2. R v Greganti, 2000 CanLII 22800 (ON SC), per Stayshyn J
  3. see R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 (S.C.C), per L'Heureux‑Dubé J J
    R v Bjelland, 2009 SCC 38 (CanLII), [2009] 2 SCR 651, per Rothstein J (4:3)
  4. Dixon, supra, at paras 23 and 24
  5. see Dixon, supra, at paras 31 and 33
  6. R v Demeter (1975) 10 OR 321 (CA), 1975 CanLII 685 (ON CA), per curiam
    R v Caccamo, 1975 CanLII 11 (SCC), [1976] 1 SCR 786, per de Grandpré J
    Bjelland, supra, at para 25
  7. R v Greganti ("When the defence is aware of a failure ... to disclose relevant material, there is an obligation to bring that failure to disclose to the attention of the Crown, and ... the Court.")
  8. O'Connor, supra}, at para 73
    R v Khela, [1995] 4 SCR 201, 1995 CanLII 46 (SCC), per LeBel J, at para 18
  9. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J, at para 37 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice.")
  10. Carosella, ibid., at para 37
    O'Connor, supra, at para 74
    R v La, [1997] 2 SCR 680, 1997 CanLII 309 (SCC), per Sopinka J, at para 25
  11. Henry v British Columbia (Attorney General), 2015 SCC 24 (CanLII), at para 69

Defence Counsel Duties

See also: Role of the Defence Counsel
Obligation to Raise Disclosure Issues

The accused should openly communicate with the court on any issues with disclosure. Likewise, the Crown is entitled to rely on those representations to determine whether disclosure has been completed.[1]

Change of Counsel

When there is a change of counsel or a loss of counsel, previous counsel has a duty to facilitate the transfer disclosure to the accused or their new counsel.[2]

  1. R v Barbour, 2017 ABCA 231 (CanLII), per curiam (3:0), at para 32 ("The accused must communicate openly with the Court and Crown with respect to disclosure issues. The Court and the Crown are entitled to take assurances by the accused at face value. When the appellant represented that she had disclosure, and had spent significant amounts of time reviewing it, the Crown was entitled to assume that its obligation to disclose had been discharged.")
  2. Barbour, ibid., at para 32 ("When there is a change of counsel, or the accused becomes self-represented, there is an obligation on counsel and the accused to ensure that the disclosure is passed along or otherwise obtained by the new counsel or the accused")
    R v Dugan (1994), 149 AR 146(*no CanLII links) , at para 5

See Also

External Links

Types of First-Party Disclosable Materials

General Principles

There is no constitutional obligation to "production of documentary originals".[1] Simply providing access to originals for inspection is sufficient.[2]

Materials including statements and police notes are required to be disclosed under s. 603:

Right of accused

603. An accused is entitled, after he has been ordered to stand trial or at his trial,

(a) to inspect without charge the indictment, his own statement, the evidence and the exhibits, if any; and
(b) to receive, on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the province, a copy
(i) of the evidence,
(ii) of his own statement, if any, and
(iii) of the indictment;

but the trial shall not be postponed to enable the accused to secure copies unless the court is satisfied that the failure of the accused to secure them before the trial is not attributable to lack of diligence on the part of the accused.

R.S., 1985, c. C-46, s. 603; R.S., 1985, c. 27 (1st Supp.), s. 101(E).

CCC

At a minimum, the Crown should disclose "can say" or "will say" statements from any witnesses it proposes to call at trial.[3]

Evidence that is in an undecipherable form, such as unlockable encrypted data, does not need to be given to defence as disclosure as the Crown cannot properly vet it for disclosable and non-disclosable information. [4]

It is defence counsel's obligation to ensure that the accused has been given an opportunity to review any recordings.[5]

The phrase " his own statement" includes both unsworn statements given at the preliminary inquiry as well as statements given to the police.[6] It will include statements made by the accused at the time of arrest.[7] However, it does not include any statement ever taken of the accused.[8]

A judge has the power to order the disclosure of any statements or documents in order to ensure "fundamental fairness to the accused".[9]

  1. R v Stinchcombe, [1995] 1 SCR 754, 1995 CanLII 130 (SCC), per Sopinka J, at paras 1 to 2
    R v Blencowe, 1997 CanLII 12287 (ON SC), per Watt J
  2. Blencowe, ibid.
    Stinchombe (1995), supra
  3. R v Stinchombe, 1991 CanLII 45, [1991] 3 SCR 326, per Sopinka J, at para 30
  4. R v Beauchamp, 2008 CanLII 27481 (ON SC), per R Smith J
  5. MRW, supra, at paras 27, 28
    see also s. 10 of CEA
  6. R v Savion, [1980] OJ No. 580 (CA), 52 CCC (2d) 276, 1980 CanLII 2872 (ON CA), per Zuber JA, at para 25
  7. R v Hieng, 2011 ONSC 4245 (CanLII), per Ramsay J
  8. Hieng, ibid.
  9. Re Regina and Arviv, 1985 CanLII 161 (ON CA), per Martin JA

Format of Disclosure

Accessibility

The disclosure must be in a reasonably "workable" format.

Before disclosure can be "meaningful", the materials must be "organized and formatted" is such a way as to be "reasonably accessible".[1]

The meaningfulness of disclosure is a factual determination based on all the circumstances of the case.[2]

Accused Obligation to Raise Accessibility Issues

The defence has an obligation to review electronic disclosure to ensure that all files can be accessed properly, whether any files are unreadable, and whether additional necessary software would be required to properly access it. [3]

In-custody Accused

In evaluating the reasonableness of the format consideration must be taken where the accused is in custody.[4]

The remand facility must have the equipment to facilitate access to disclosure.[5]

  1. R v Oszenaris, 2008 NLCA 53 (CanLII), per Barry JA, at para 19 ("... that electronic disclosure is meaningful if the disclosure materials are reasonably accessible -- a matter to be assessed in the circumstances of each case. I also agree a significant factor in assessing accessibility is the manner in which the material is electronically organized and formatted. Accessibility may also depend upon the circumstances of the accused, including accused's counsel.")
    R v Beckett, 2014 BCSC 731 (CanLII), per Meiklem J, at paras 7 to 8
  2. R v Zanolli, 2018 MBCA 66 (CanLII), per Hamilton JA, at para 68
  3. Zanolli, ibid., at paras 70 to 71
  4. R v Therrien, 2005 BCSC 592 (CanLII), per Barrow J (custody "is an important circumstance to consider when assessing the reasonableness with which he can access the disclosed material.")
  5. R v Chan, [2003] AJ No 1117, 2003 ABQB 759 (CanLII), per Sulyma J - remand facility must buy computer to let accused listen to wiretap recording on CD-ROM
    See also: R v Cheung, 2000 ABPC 86 (CanLII), [2000] AJ No 704 (ABPC), per Maher J and R v Grant, [2003] MJ No 382 (MBQB)(*no CanLII links)

Electronic and Paper Form

The accused is not entitled to disclosure in their form of choice. It is in the discretion of the Crown what form it will take. This discretion is reviewable.[1] The main reviewable element of disclosure is whether it is "reasonably accessible" and can include whether electronic disclosure was "organized and searchable".[2] Reasonableness must take into account the circumstances and abilities of the particular accused and counsel.[3]

Where the form of disclosure is "such that an accused person is unable to access the information, then it is not meaningful disclosure.".[4]

The "greater the volume of material disclosed, the greater the need for organization and reasonable search capabilities".[5]

The mere absence of computer skills of the accused or counsel will not prevent the use of electronic disclosure so long as the skills are "acquired relatively easily".[6]

Counsel should be able to print out the disclosure in a readable manner so that they can communicate effectively with their client.[7]

There is no absolute right to original documents, however, the Crown must explain if the Crown no longer has possession of it. Lost or destroyed documents due to unacceptable negligence will breach the duty to disclose.[8]

Computer Literacy Expected

There is unlikely merit to suggest that the disclosure should accommodate counsel who is computer illiterate.[9] Counsel are expected to be "in a position to utilize a computer for the management of large volumes of materials".[10]

Index Required on Voluminous Cases

When electronic disclosure becomes particularly voluminous, there is an obligation to provide a meaningful index.[11]

Crown Duty to Familiarize Counsel with Tools

Where the Crown uses electronic disclosure, the Crown has an obligation to ensure that counsel is familiar with necessary software tools to review the materials.[12]


  1. R v Beckett, 2014 BCSC 731 (CanLII), per Meiklem J, at para 8
    cf. R v Hallstone Products, 1999 CanLII 15107 (ONSC), per LaForme J - suggests disclosure requires paper copy, likely not relevant given the change in technology
  2. Beckett
    R v Dunn, 2009 CanLII 75397 (ON SC), per Boswell J - ("form of disclosure must be accessible and adequate to enable an accused to exercise his or her constitutional right to make full answer and defence") and para 55
  3. Beckett, supra
  4. Dunn, supra, at para 53
  5. Dunn, supra, at para 59
  6. Beckett, supra
  7. R v Piaskowski, 2007 MBQB 68 (CanLII), per Sinclair J, at para 84 ("Electronic disclosure must permit counsel to be able to print copies of the documents and images in a readable manner so as to be able to communicate effectively with his or her client.")
  8. R v FCB, 2000 NSCA 35 (CanLII), per Roscoe JA, at para 10
    see Lost or Destroyed Evidence
  9. R v Rose, [2002] QJ 8339, 2002 CanLII 45358 (QC CS), per Martin J, at paras 13 to 14
    R v Jonsson, [2000] SJ No 571 (SKQB), 2000 SKQB 377 (CanLII), per Klebuc J
  10. R v Oszenaris, 2008 NLCA 53 (CanLII), per Barry JA, at para 20
  11. R v Jarvie, [2003] OJ No 5570 (ONSC), 2003 CanLII 64366 (ON SC), per Templeton J
    R v Barges, [2005] OJ No 4137 (ONSC), 2005 CanLII 34815 (ON SC), per Glithero J
  12. Piaskowski, supra, at para 84 ("Where the Crown wishes to make electronic disclosure as opposed to paper disclosure, the Crown has a further obligation to assist counsel lacking familiarity with the software utilized, and an unrepresented accused who bona fide has limited or no computer skills with reasonable access to materials that form part of the disclosure. This further obligation may range from training on the use of the software through the provision of computer equipment and may include the obligation to provide paper copies of all disclosure. This would depend on the circumstances of each case. ")

Tools and Equipment to Examine Evidence

The crown does not necessarily have to provide the proper software necessary to examine the evidence. Software is not "information" and so does not have to be disclosed.[1]

The Crown does not need to pay for the necessary training required to use the software either.[2]

  1. R v Cox, 2003 ABQB 212 (CanLII), per Nation J, at para 15 - Crown does not need to provide copy of EnCase forensic software to defence
    R v Radwanski, 2006 CanLII 43496 (ON SC), per Roccamo J
  2. Radwanski - judge rules no need to give software or training when they could attend the RCMP station and use the police copy

Typical Components of a Disclosure Package

Police compile a package of the evidence consisting of the notes, reports and statements generated during their investigation that is forwarded to the Crown Attorney's office. This usually comprises the initial disclosure package that is made available to the Defence counsel.

Disclosure packages can contain any of the following:

  1. the Information outlining the charges laid;
  2. the Crown Sheet or Crown Brief summarizing in the evidence in narrative form and listing the witnesses that are available;
  3. the Police Notes consisting of handwritten notes made by all the officers involved in the case during their investigation;
  4. the Witness statements consisting of the verbatim recollection of the potential witnesses to the offence (written, audio, or video form);
  5. A Cautioned Statement of the accused
  6. the Criminal record of the accused as recorded in provincial databases or CPIC (Canadian Police Information Centre) printout;
  7. Copies of Court Orders (Probation Orders; Prohibition Orders; Recognizances)
  8. Expert Reports
  9. Certificates of analysis (often for breathalyzer machine results; drug analysis; or firearms test results);
  10. the Medical records of the victim in cases of resultant injuries;
  11. Restitution claims where property has been lost or damaged;
  12. Photographic evidence often consisting of photos of the scene of the incident or injuries.

Further material requested often includes:

  1. Videos or images of accused while in police custody
  2. computer printouts of any police database searches related to the accused
  3. Demands made to client by the police from a script (e.g. Charter caution, breath demand, etc)
  4. Printed logs and audio recordings of police, 911 dispatch, or ambulance transmissions
  5. Notes of any professionals, such as doctors, ambulance crew, fire crew, etc. who was present at scene of incident
  6. records of testing, maintenance, usage, and calibration of breath device used by accused
  7. notes and reports regarding searches of accused (including strip searches)
  8. Police action reports: Use of Force Reports, Use of Pepper Spray Reports
  9. reports and materials related to police procedure on (use of force, taking statements, crowd control, parking violations, use of taser)
  10. discipline record of officers
  11. criminal records of witnesses
  12. police reports regarding witnesses
  13. records of outstanding charges of witnesses
  14. Computer Aided Dispatch (CAD) printouts of the log of all dispatch activities[1]
  15. recordings of dispatch communications
  1. e.g. see R v Holowaychuk, 2013 ABPC 38 (CanLII), per Thietke J, at paras 20 to 22

Specific Disclosable Materials

Can Says

There is no disclosure obligations to obtain and disclose a can-say for a witness who is uncooperative in giving a statement.[1]

All witness statements obtained must be disclosed even if they are not going to be witnesses called by the Crown.[2]

Where there are no statements, other information about the witness, including police notes and records concerning the witness, address and occupation, should be disclosed.[3]

  1. Ministry of Labour v C.S. Bachly Builders Limited et al., 2007 ONCJ 120 (CanLII), per Quon J, at para 51
  2. Stinchcombe, supra, at p. 344
  3. Stinchcombe, supra, at p. 344

Crown Notes

The Crown has an obligation to disclose new information, including inconsistencies in statements, that it learns from pre-trial interviews.[1]

Any Crown notes that relate to opinion or analysis are not disclosable.[2]

Notes of the Crown may be subject to solicitor-client privilege and work product privilege.[3] The burden is upon the Crown to establish that the privilege exists.[4]

Investigative statements taken by the Crown must be disclosed.[5] It should normally be in written form but if time does not permit it should be done in writing and followed up in writing.[6] Disclosing Crown notes may be dangerous as they are often only intended to be an aide memoire and not an accurate rendition of facts. This could be used unfairly at trial.[7]

A peace officer or secretary will usually sit in on meetings with witnesses and take any new statements.[8]

Defence have the burden to prove that the notes exist and are likely relevant.[9] If established, the Crown then has the burden to establish the justification for not disclosing the notes.

  1. R v O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), per J
    R v Armstrong, 2005 CanLII 63811 (ON SC), per Himel J
  2. Armstrong, ibid.
  3. R v Brown, [1997] OJ No 6163
  4. Brown, supra
  5. R v Regan (1997), 174 NSR (2d) 72 (SC)(*no CanLII links) , at para 23
  6. Regan, supra
  7. R v Johal, 1995 CanLII 2426 (BCSC), per Braidwood J
  8. E.g. R v Lalo, [2002] NSJ No 3432 (SC)(*no CanLII links)
    R v Johal, [1995] BCJ No 1271 - will say statement produced by third party used to avoid crown being a witness
  9. Chaplin, supra

Contact Information of Witnesses

Witholding contact information of crown witnesses is in the discretion of the Crown.[1]

Vetting on Security and Privacy Concerns

The contact information of crown witnesses can be withheld for specific security or privacy concerns.[2] This would include situations where threats have been made against witnesses.[3]

Analysis Considerations

Interests to disclose must be balanced against the accused right to make full answer and defence which is enhanced by the ability to contact witness independently.[4]

Courts must still recognize the witnesses right to privacy, and so no party can force a witness to be interviewed.[5] Courts must also protect witnesses from "abusive, harassing, threatening or otherwise improper conduct and to protect witnesses against abusive treatment in and out of Court"[6]

Suggested Protocol

It has been suggested that the following protocol be taken for allowing defence to access crown witnesses:[7]

  1. At the request of the defence, the Crown Attorney shall make available to the defence a room within the courthouse suitable for a confidential interview of the named witnesses by counsel of record;
  2. The interviews are to be strictly confidential; no Crown Attorney or police officer is to be present unless requested by the defence;
  3. The fact of an interview and any and all information obtained during it is to remain strictly confidential. No person, including the witness, the defence counsel, the accused and any other person present for any such interview may disclose any information relating to the interview except as may be necessary in the conduct of the trial itself.
  4. The named witnesses shall be written a letter jointly signed by all principal counsel of record advising them of the request of the defence to interview them at the courthouse. The letter is to advise the witnesses in the clearest of terms of the existence of this ruling and of the right of the accused to interview them subject to their right to decline to participate in any such interview - the decision is strictly theirs to make. Care is to be taken to ensure the witnesses are not left with the impression they should not grant the defence an interview. The letter is to convey to the witnesses that any such interview will be by the defence counsel of record without any police officer or Crown Attorney present. Moreover, they are to be informed of the order of the Court requiring all persons involved in the interview to maintain the confidentiality of the interview process strictly.
Disclosure on Undertakings

When contact information is provided, it may be ordered that the information be disclosed to counsel but only on undertaking not to disclose personally to the accused.[8]

  1. R v Mearow et al, 2013 ONSC 1865 (CanLII), per Koke J, at para 25 citing the Martin Report
  2. e.g. R v Charlery,[2011] O.J. No. 2669(*no CanLII links) - required disclosure due to "general" not "specific" concerns
  3. R v Brown [1997] O.J No. 6165(*no CanLII links)
  4. Mearow, supra, at para 21
  5. Mearow, ibid., at para 26
  6. Mearow, supra, at para 26
  7. Mearow, ibid., at para 74
  8. R v Hitchings, 2017 SKPC 56 (CanLII), per Penner J, at para 33

Source Handler Notes and Source Debriefing Reports

A police officer is assigned as an informer's "handler" who will typically create notes that detail the reliability of the informer, these are the debriefing notes, also known as source debriefing notes (SDRs).[1]

For the purpose of challenging a warrant, the right to full answer and defence only requires that the materials provided to the authorizing justice be made available.[2]

Judges must be "exceedingly cautious" if they engage in editing out information that might disclose a confidential informer as innocuous information may reveal the person's identity.[3] Accordingly, judges should give a great amount of deference to the editing suggested by Crown and investigators.[4]

There is some authority suggesting that there is blanket informer privilege over all SDR and SHN.[5]

  1. R v Barzal, 1993 CanLII 867 (BC CA), (1993) 84 CCC (3d) 289 (BCCA), per curiam
    see also R v Croft, 2013 ABQB 705 (CanLII), per Burrows J
  2. Barzal, supra, at para 44
  3. R v Leipert, 1996 CanLII 471 (BCCA), per Southin JA, at para 35
  4. R v Steeves, 2004 NBQB 039(*no CanLII links) , at para 23
  5. R v Omar, 2007 ONCA 117 (CanLII), per Sharpe JA, at paras 38 to 43
    R v Tingley, 2010 NBQB 284
    cf. R v Way, 2014 NSSC 180 (CanLII), per Arnold J

Preparation of Transcripts

There is no obligation on the crown under s. 10 of the Evidence Act to prepare a transcript of a K.G.B. statement for the purpose of cross-examination.[1]

The request for a transcript takes issue with the form in which the disclosure was provided.[2]

If the Crown obtains a transcript of a defence expert's testimony from a previous hearing that is relevant to the trial it must be disclosed.[3]

  1. R v MRW, 2013 ABCA 56 (CanLII), per curiam, at paras 27, 29
  2. R v Burns, 2010 SKPC 6 (CanLII), per Morgan J
  3. R v L(SE), 2012 ABQB 71 (CanLII), per Hillier J
    See also Expert Evidence

Video Statements

See also: Crown Duty to Disclose

Child Pornographic Materials

See also: Child Pornography (Offence) and Crown Duty to Disclose#Child Pornography

Expert Evidence

See also: Expert Evidence

Under s. 657.3(3)(c), the Defence must disclose a copy of their expert's report or a can-say of their expert witnesses no later than upon the closing of the Crown's case.

Either side intending to submit expert evidence must disclose "the expert's report and any materials which contributed to the foundation of the report or which are clearly relevant to the witness's credibility must be disclosed."[1]

  1. R v Friskie, 2001 CanLII 392 (SK PC), per Snell J, at para 27

List of Witnesses to be Called

The Crown does not need to disclose what witnesses will be called.[1]

  1. R v Pinkus, 1999 CanLII 15054 (ON SC), [1999] O.J. No. 5464, per McKinnon J, at paras 7 to 9, 11 ("The decision whether to call a witness is solely within the discretion of the Crown. ...For the Court to order the Crown to inform defence as to whether a particular witness will be called would effectively trump Crown discretion.")

Device Calibration Records

The "rolling logs" made by Drug Recognition Expert (DRE) of every evaluation they have done is "first party" disclosure.[1]

Historical records relating to the performance of "approved instruments" for an impaired driving investigation are not "first-party" records.[2]

Operational records are not "fruits fo the investigation".[3]

  1. R v Stipo, 2019 ONCA 3 (CanLII), per Watt JA
  2. R v Gubbins, 2018 SCC 44 (CanLII), per Rowe J(8:1)
  3. Stipo, supra, at para 113

Records of Police Misconduct

Misc Police Records

Under RCMP practice, detainees who are brought into cells are logged using a C-13 Form.[1]

  1. R v Schira, 2011 SKPC 140 (CanLII)(complete citation pending), at para 33

Specific Non-Disclosable Materials

Any details on the Crown's review of the records including time, date and completeness of their review is not disclosable.[1]

  1. R v Black, 1998 CanLII 5042 (NS SC), per Saunders J

See Also

Limitations on Access to Disclosure

General Principles

See also: Crown Duty to Disclose

Normally, the Crown must give the accused copies of disclosure without conditions. Any deviation, such as imposing "trust conditions" or undertakings, must be justified by the Crown.[1]

The "facts and complexity" of the case should dictate the "nature and extent" of the crown disclosure.[2]

When considering whether to impose any restrictions on disclosing sensitive materials, a balance of factors are considered including the right to full answer and defence, privacy rights of third parties, and the administration of justice.[3]

  1. R v Mercer (1992), 1992 CanLII 7230 (NL SCTD), 105 Nfld. & P.E.I.R. 1; 331 A.P.R. 1 (Nfld. T.D.), per AyIward J
    R v Little, 2001 ABPC 13 (CanLII), per Meagher J, at paras 33 to 34
    Christopher Sherrin and Philip Downes, “The Criminal Lawyers’ Guide to Disclosure and Production” (Aurora: Canada Law Book Inc., 2000) at 53
  2. R v Petten, 1993 CanLII 7763 (NL CA), per Gushue JA, at para 8
    R v Luff (A.) (1992), 1992 CanLII 7113 (NL CA), per Gushue JA
  3. R v Blencowe, 1997 CanLII 12287 (ON SC), per Watt J

Undertakings and Trust Conditions

The discretionary imposition of explicit conditions upon defence counsel is reviewable by the court.[1]

The Crown has an obligation to protect the privacy of victims when affecting disclosure obligations.[2]

A court may also order "trust conditions" to be binding upon a self-represented accused.[3]

Requirements to Return Disclosure

A trust condition requiring defence counsel to return all disclosure to the Crown should the accused obtain new counsel is not unreasonble.<Rf> R v Barbour, 2017 ABCA 231 (CanLII), per curiam (3:0), at para 33
</ref> Under this condition, the Crown's refusal to make a second copy for new counsel does not breach the duty to disclose.[4]

Experts

Where access is given for the purpose of analysis by a defence expert, the court may order that the expert be identified.[5]

Excessive Conditions

Where the conditions of an undertaking are too onerous, they may be in violation of the Charter including the right to full answer and defence.[6] Remedy can include judicial direction to amend the proposed undertaking.[7]

Example undertakings: R v Floria, 2008 CanLII 57160 (ON SC), per Croll J

  1. R v WAO, 2001 SKCA 64 (CanLII), per Cameron JA, at para 17
    R v Vokey (1991), 1991 CanLII 6987 (NL SCTD), per Bartlett J, at p. 18 ("The manner of disclosure must, for now, be regarded as one of reviewable discretion on the part of Crown counsel. It ought generally to be accomplished by the delivery of photostatic copies of the materials required to be disclosed. There will be circumstances where the provision of photostatic copies is not desirable.")
  2. R v Smith, [1994] SJ 38, 1994 CanLII 5076 (SK QB), per Walker J
  3. R v Muirhead, 1995 CanLII 4064 (SK CA), per Jackson JA
  4. Barbour, ibid.
  5. e.g. R v Hathway, 2006 SKQB 206 (CanLII), per Rothery J
  6. R v Mohammed, 2007 CanLII 5151 (ON SC), per Dawson J
  7. e.g. Mohammed, ibid.

Defence Obligations Accepting Disclosure

The defence must be made aware of the existence of all disclosure including circumstances where the Crown exercises discretion not to release certain parts of it.[1]

  1. R v Petten, 1993 CanLII 7763 (NL CA), per Gushue JA, at para 8

Limiting Sensitive Videos

In sensitive cases of sexual assault involving self-represented accused, the Crown obligation to disclose video statements of a complainant may be satisfied by allowing for a viewing at the Crown office so long as there is no reasonable possibility of impeding the right to full answer and defence.[1]

  1. e.g. R v Papageorgiou, 2003 CanLII 52155 (ON CA), per curiam

Limiting Child Pornography

See also: Types of Disclosable Materials

It is not settled in law whether the defence should get copies of the alleged child pornography in order to prepare for their defence.

It is recognized that child pornographic imagery "do not depict the crime — they are the crime."[1]

Possession and access to child pornography is permitted under s. 163.1(6):

163.1.
...

Defence

(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice...; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.

CCC

Courts have been divided on what form the disclosure of alleged child pornographic materials should take in order to satisfy disclosure obligations. Certain jurisdictions have found that disclosure of the recordings must be given in full subject to a restrictive undertaking.[2] Others have found that simply permitting the accused counsel to review the materials in a controlled, private setting is sufficient. The defence is not therefore entitled to a copy of the materials.[3]

Where the defence seeks mirror copies of the hard drives to perform their own forensic analysis, the Crown is obliged to provide them.[4]

Courts in England and Wales have permitted the limited disclosure of child pornography to defence counsel to prepare for trial.[5]

  1. R v Hunt, 2002 ABCA 155 (CanLII), per curiam, at para 16
  2. R v Blencowe, 1997 CanLII 12287 (ON SC), per Watt J
    R v Garbett, 2007 ONCJ 576 (CanLII), per MacDonnell J, at para 9
    R v Cassidy (2004), 2004 CanLII 14383 (ON CA), 69 O.R. (3d) 585 (Ont. C.A.), per curiam
  3. R v WAO, 2001 SKCA 64 (CanLII), per Cameron JA, at paras 32 to 34 - re video tape of sex assault
    R v Papageorgiou, 2003 CanLII 52155 (ON CA), per curiam - re video tape statements
  4. R v Cassidy, 2004 CanLII 14383 (ON CA), per curiam
  5. see Crown Prosecution Service v LR [2010] EWCA Crim 924 (28 April 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/924.html

Self-represented Accused

Self-represented accused are generally entitled to the same materials as counsel except where "safety, security or privacy interests of any person" are endangered. [1]

However, the courts may restrict a self-represented accused's access to disclosure in certain circumstances.[2]

Where the accused has a history of inappropriate use of disclosure it may be appropriate to impose restrictions such as:[3]

  • accessing disclosure at the crown office in a private setting. No copies can be made but they may take notes;
  • accessing a copy of disclosure kept in the courtroom during trial;
  • keeping copies of transcripts and exhibits;
  1. e.g. see R v Papageorgiou, 2003 CanLII 52155 (ON CA), per curiam
  2. R v Kelly, 2015 ABCA 200 (CanLII), per curiam, at paras 6 and 7
  3. Kelly, ibid., at para 7

)

Police Duty to Collect Evidence

General Principles

See also Analyzing Testimony#Lack of notes

There is no free-standing constitutional right to an "adequate investigation of the charges against him or her". They do not violate the right to full answer and defence.[1]

The Crown does not have an obligation to investigate possible defences.[2]

The Crown has no obligation to send police or other authorities to secure additional statements from witnesses requested by defence.[3]

The police has a duty to provide Crown all relevant materials that are in their possession.[4]

When considering officer conduct as it relates to the integrity of an investigation or officer safety, police should be given "a good deal of leeway".[5]

  1. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA, at para 29 ("An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her...Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence."), leave to SCC refused
    R v Barnes, [2009] OJ No 2123, 2009 ONCA 432 (CanLII), per curiam, at para 1
  2. Darwish, supra
  3. Darwish, supra, at paras 29 to 41
    R v Dias, 2010 ABCA 382 (CanLII), per curiam, at para 38
    R v Levin, 2014 ABCA 142 (CanLII), per curiam, at para 45
  4. R v Jackson, 2015 ONCA 832 (CanLII), per Watt JA, at paras 80 to 81
    R v McNeil, 2009 SCC 3 (CanLII), per Charron J, at paras 23 to 24
  5. R v Wight, 2007 ONCA 318 (CanLII), per Moldaver JA, at para 54 ("...when it comes to officer safety and preserving the integrity of their investigation, police officers should be given a good deal of leeway and second guessing should be avoided.")

Duty to Inquire

There is a "Stincombe-like" duty on the part of the Crown to inquire into areas of potential evidence.[1]

It is recognized that the accused has "limited means to access relevant materials in the hand of those third parties. The Crown is in a better position to bridge the gap between first-party and third-party records by attempting to obtain records when "put on notice of its existence" and it is "reasonably feasible to do so".[2]

Where the Crown can secure third-party cooperation, the Crown may be able to avert the need for court applications.[3]

The Crown should "take reasonable steps to assist an accused in obtaining disclosure of relevant material in the possession of a third party". [4] This, however, does not go so far as to require the Crown to "conduct investigations that may assist the defence". Otherwise, the prosecution will "effectively surrender control of the investigation to the defence, or ultimately face a stay of the criminal charges"[5]

This duty is engaged where the accused provides evidence of “serious misconduct” and identifies third-party information that it believes is “relevant” to that “serious misconduct”. This includes evidence of attempts to fabricate evidence. Where such evidence is put forward the Crown has a duty to make inquiries to third parties and if unsuccessful provide notice to the Defence to make their own O'Connor application. Where any information is retrieved it will be subject to a standard of relevancy.[6]

The duty to inquire does not extend into seeking out forensic audit reports that may support the defence.[7]

  1. R v McNeil, [2009] 1 SCR 66, 2009 SCC 3 (CanLII), per Charron J
    R v Levin, 2013 ABQB 31 (CanLII), per Shelley J, at para 40
  2. McNeil, supra, at paras 48 to 49
    R v JEK, 2016 ABCA 171 (CanLII), per Dinkel JA, at para 57
  3. R v Levin, 2014 ABCA 142 (CanLII), per curiam, at para 44
  4. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA
  5. Darwish, ibid.
  6. Levin, supra, at para 40
  7. Darwish, supra

Collection of Evidence

Generally, there is no violation of the disclosure obligation arising from a failure to collect information.[1]

There is no burden on the police to record evidence of all conversations with witnesses, even important ones.[2]

The police do not have a general obligation to collect evidence in a certain manner or create specific material disclosure and so a failure to do so would not amount to a failure to provide disclosure or impact the right to make full answer and defence.[3]

The police have no obligation "to conduct their investigation in any particular way, to record every word spoken in an interview or to take a written statement from every potential witness who is interviewed."[4]

Investigative police strategies and "tactical information are presumptively not disclosable absent a particularized claim to relevance".[5]

The defence cannot direct the course of an investigation.[6] Accordingly, the defence cannot "conscript the police to undertake investigatory work for the accused" through the use of disclosure demands.[7]

Notes

There is a general duty for an officer "to take complete, accurate and comprehensive notes."[8]

Where the handwritten notes of an officer are illegible, then the obligation of disclosure can require the crown to transcribe the notes or otherwise provide them in legible form.[9]

Preservation of Evidence

The Crown must preserve evidence on a "close case" for the purpose of disclosing it should charges arise.[10]

There is a duty to preserve evidence that arises from the right to full answer and defence.[11]

Police are not obliged "to preserve everything that comes into their hands on the off-chance that it will be relevant in the future."[12]


  1. R v Hanano, 2006 MBQB 202 (CanLII), per Spivak JA, at para 20
  2. R v Wicksted, 1996 CanLII 641 (ON CA), [1996] OJ No 1576, 29 O.R. (3d) 144, per Goodman JA, at p. 155: ("As pointed out by the trial judge, counsel were unable to provide him, nor were counsel able to provide this court with any Canadian authority wherein a stay was granted for the failure of investigating police officers to record conversations with important witnesses.")
  3. R v Korski, 2007 MBQB 185 (CanLII), per Beard J
    Darwish, supra
    R v Barnes, 2009 ONCA 432 (CanLII), per curiam
  4. Korski, supra
  5. R v Pickton, 2005 BCSC 1240 (CanLII), per Williams J, at para 44
  6. R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA, at para 30
  7. R v West, [2001] OJ No 3406, [2001] O.T.C. 711 (S.C.J.)(*no CanLII links) , per Hill J, at para 75
    Darwish, supra, at para 30
  8. R v Bailey, 2005 ABPC 61 (CanLII), per Van de Veen J
  9. R v Bidyk, 2003 SKPC 124 (CanLII), per Whelan J
    R v Abrey, 2007 SKQB 213 (CanLII), per Ball J
  10. R v Satkunananthan, 2001 CanLII 24061 (ON CA), (2001), 152 C.C.C. (3d) 321, per curiam, at para 75 (Ont. C.A.) ("As it was disclosable, the police had an obligation to preserve it so that it could be disclosed")
  11. R v La, [1997] 2 SCR 680, 1997 CanLII 309 (SCC), per Sopinka J, at para 20
  12. R v Lees, 2011 SKPC 98 (CanLII), [2011] S.J. No. 507 (SKPC), per Kalmakoff J

Note-taking

It has been recognized that the "sheer passage of time" can reduce the reliability of memories.[1]

Police officers have a duty to take contemporaneous notes, recording their observations accurately and comprehensively.[2]

The failure to take notes does not "automatically" affect the reliability of the officer's recollections. Rather it is determined on a case-by-case basis.[3]

Methods of Notekeeping

The court has no authority to direct officers on how they should keep their notes.[4] They should not be micromanaging the police's handling of a case.[5]

Possible Charter Breach

Incomplete notes do not breach the right to full answer and defence. As long as the majority of the officer's evidence is recorded in some fashion there will be no violation.[6]

A complete inconsistency between notes and testimony may result in a violation of s. 7 and stay of proceedings.[7]

  1. R v Clark, 2017 ABQB 643 (CanLII), per Renke J, at para 19
  2. Wood v Schaeffer, 2013 SCC 71 (CanLII), per Moldaver J, at paras 62 to 68 ("The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent invetigator")
    R v Davidoff, 2013 ABQB 244 (CanLII), per Graesser J, at paras 25 to 27
  3. R v Turgeon-Myers, 2019 ABQB 493 (CanLII)(complete citation pending), at para 68 ("Nonetheless, the gap in Cst. Burrows’ notes does not have an automatic consequence respecting his reliability ... The effect of absent notes must be assessed on a case-by-case basis.")
    R v Skookum, 2019 YKSC 8 (CanLII), per Campbell J, at para 75 ("The absence of a notation in an officer’s notes regarding a relevant observation or event does not automatically lead to the conclusion that the observation was not made or the event did not occur. The testimony of an officer is the evidence at trial, not his or her notes. The absence of a note is however a factor to consider in assessing the reliability and the credibility of the officer’s testimony")
    Davidoff, supra, at para 27 (" There is no rule of law that says a police officer’s testimony, unsupported by notes, is inadmissible or deemed to be incredible or untrustworthy. Notes, the absence of notes and the quality of notes, are only factors in assessing credibility.")
  4. R v Pickton, 2007 BCSC 2029 (CanLII), [2007] BCJ No. 3100 (B.C. S.C.), per Williams J, at para 9
  5. R v Bailey, 2005 ABPC 61 (CanLII), per Van de Veen J, at paras 38, 46
  6. Bailey, supra, at paras 38, 46
  7. e.g. R v Karunakaran, 2008 ONCJ 397 (CanLII), per Armstrong J

Originals

There is no "absolute right to originals" of records seized by police. However, when originals are not available the Crown should explain their absence.[1]

  1. R v Williams, 2017 ONSC 572 (CanLII), per Munroe J, at para 124

See Also

Lost or Destroyed Evidence

General Principles

See also: Abuse of Process and Stay of Proceedings

Where evidence is in the possession of the Crown or Police, there is a duty to preserve this evidence. Where this evidence goes missing or is destroyed, it can in certain circumstances, form grounds for a stay of proceedings under s. 7 and 11(d) of the Charter. The stay is on the basis that the rights under s. 7 of the Charter to make full answer and defence and under s. 11(d) to a fair trial have been violated.

Lost Originals

There is a limited right to review original documents. Where the originals have gone missing the Crown has an obligation to explain how it went missing.[1]

Reason for Loss

The loss of evidence will not result in the breach of the duty to disclose so long as the conduct of the police was reasonable.[2]

Full Answer and Defence

Where the loss of evidence deprives the accused of an ability to make full answer and defence, such as were the evidence would have likely would have assisted in the accused to meet the case, it may be stayed as abuse of process.[3]

Unacceptable Negligence

There can only be a breach of the duty to disclose where the loss or destroyed evidence was found to due to "unacceptable negligence" [4] A reach of this duty will result in a violation of s. 7 of the Charter.[5] Additionally, it may amount to an abuse of process.[6] The only available remedy would be a stay.[7]

Not every instance where negligence that results in the loss of evidence will result in a Charter breach.[8] Nor will every case loss of evidence will infringe the accused’s right to make full answer and defence. “Owing to the frailties of human nature, evidence will occasionally be lost” [9]. The Crown must explain the loss and satisfy the trial judge that it was not due to unacceptable negligence or an abuse of process. If satisfactorily explained, the onus is on the accused to “establish actual prejudice to his or her right to make full answer and defence” [10]. The principal consideration, in the explanation, “is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence” [11]

Even where it does not amount to "unacceptable negligence", there may still be a breach of section 7 of the Charter where " the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. " The only available remedy would be a stay.[12]

The inquiry should be upon the "reasonableness of the officer's conduct that resulted in the loss of the evidence.[13] The more obvious the importance of the evidence the greater care is expected from the officer.[14]

Notice of Destruction

Notifying the accused ahead of the destruction of property inviting inspection may cure the prejudice caused by the loss of evidence from the destruction of property.[15]

Offence-related Circumstances

Discarding of the mouthpiece used in an alcohol roadside screening device will not violate the right to full answer and defence under s. 7 of the Charter.[16]

Lost Court Record

The loss or destruction of the recording and transcripts of a preliminary inquiry will be sufficient for an acquittal due to failure to make full answer and defence.[17]

Destruction by Third Party

Where records held by a third party are destroyed there may be a stay of proceedings.[18]

Remedy

Where the circumstances permit, a remedy for loss of evidence may include a jury instruction on the importance of the evidence lost.[19]

  1. R v FCB, 2000 NSCA 35 (CanLII), 142 CCC (3d) 540, per Roscoe JA, at pp. 547-48 (N.S. C.A.)
    R v Bero, 2000 CanLII 16956 (ON CA), per Doherty JA, at para 30
  2. R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J, at para 21
  3. R v PSL, 1995 CanLII 8939 (BC CA), per Cumming JA, at para 51("if the defence can establish that the missing evidence was of such potential importance that its destruction deprived the accused of his ability to make full answer and defence, a judicial stay of proceedings may be warranted. This threshold will be met where it is shown that the missing material would have likely assisted the defence in meeting the Crown's case.")
  4. FCB, supra
    Bero, supra, at para 30
  5. FCB, supra
    Bero, supra, at para 30
  6. FCB, supra
    Bero, supra, at para 30
  7. Bero, supra, at para 30
  8. R v Lipovetsky, 2007 ONCJ 484 (CanLII), [2007] OJ No 4135, per Kenkel J, at para 19 ("Even where there is negligence on the part of the Crown, the loss of a videotape does not automatically violate the Charter. A Charter breach is established only where the lost evidence is shown by the applicant to be relevant to the issues at trial.")
    See also R v Dulude, 2004 BCPC 524 (CanLII), [2004] OJ No 3576, per Stansfield J, at para 30
  9. La, supra, at para 20
  10. La, supra, at para 25
  11. La, supra, at para 21
    and see R v Kociuk (R.J.), 2011 MBCA 85 (CanLII), per Chartier JA
  12. RCB, supra
    Bero, supra, at para 30
  13. R v Hersi, 2019 ONCA 94 (CanLII), per Doherty JA, at para 30
  14. Hersi, ibid., at para 30
  15. e.g. R v Berner, 2012 BCCA 466 (CanLII), per Ryan JA - car in collision destroyed by police prior to trial. Officer sent registered mail letter to accused prior to releasing vehicle.
  16. R v Lee, 2010 ONSC 4117(*no CanLII links)
    R v Boylan, 2011 BCPC 235 (CanLII), per Frame J
    R v Goosen, 2014 SKQB 135 (CanLII), per Tholl J
    cf. R v Dhillon, (1999), 41 W.C.B. (2d) 48(*no CanLII links) - stay of proceedings
  17. R v MacLeod, 1994 CanLII 5243 (NB CA), (1994), 93 CCC (3d) 339 (N.B.C.A.), per Ryan JA
  18. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J - rape crisis centre destroyed nurses notes per centre's policy
  19. Hersi, supra, at para 39

Lost Statements of the Complainant

When considering whether a stay is appropriate for a lost statement, the Court should consider "all the surrounding background facts and circumstances of the complainant's evidence" such as:[1]

  • "the emotional or psychological status of the complainant at the time the allegations were made"
  • "the time when the complaints were made in relation to when the allegations occurred, i.e. before or after therapy"
  • "whether the investigating officers who took the statement were available for questioning"
  • "whether the complainant made other statements prior to trial that the defence can use to attack her credibility"
  • "whether the Crown concedes that proposed substitute evidence is a statement of the complainant and may be used for the purposes of cross-examination of the complainant"
  • "whether the statements that do exist appear to contain the same amount of detail as the lost statement"
  • "the extent of the complainant's present ability to recall the contents of the earlier statements"
  • "the complainant's present ability to recall the details surrounding the various alleged incidents of abuse"
  • "any apparent or potential inconsistencies in the complainant's trial testimony or between her other statements and her evidence at the preliminary hearing"
  • "whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance"
  • "whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accused did not retain his own records" and
  • "what other witnesses had to say at the time in support or contradiction of the complainant's allegations"

The emphasis of consideration should be on "whether other available evidence contains essentially the same information as the lost evidence".[2]

  1. R v JGB, 2001 CanLII 24101 (ON CA), per Weiler JA, at para 9
  2. R v Girou, 2016 ABQB 607 (CanLII), per Thomas J, at para 20

See Also

Disclosure of Third Party Records

Production at Common Law / O'Connor Application

See also: Production of Records for Sexual Offences

A party may apply for an order requiring a third party, that is, a party other than the crown or its agents, to produce relevant documents for the purpose of using them in court.

The application, often referred to an as "O'Connor Application"[1], is a two-stage process

  1. First the applicant must satisfy the judge that the record is likely relevant to the proceedings against the accused. If so, the judge may order the production solely for the court's inspection.
  2. Second, the judge must then determine, after inspection, what portions of the documents are to be produced for the defence.[2]

The O'Connor regime is not limited to situations where the third party has a reasonable expectation of privacy over the records. It applies to all third party records.[3]

The Crown has no duty to discover and disclose records on the basis of a "pure fishing expedition".[4]

Third party records have no presumptive relevance. The do not "become relevant by simply suggesting that they relate to credibility 'at large'". It must be established "on a 'specific' and 'material' issue"."[5]

Production of Records for Sexual Offences

Where the records sought to be produced are in relation to a prosecution of a sexual offence, the O'Connor regimes does not apply, instead the hearing is governed by s. 278.1 to 278.91 of the Code.[6]

History

Following the ruling of R v O'Connor[7] Parliament passed Bill C-46 (An Act to amend the Criminal Code (production of records in sexual offence proceedings))[8] which came into force on May 12, 1997. These provisions were upheld in 1999 in the decision of R v Mills.[9]

  1. R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L'Heureux‑Dubé J
  2. O'Connor, ibid.
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 27
  3. McNeil
    R v Oleksiuk, 2013 ONSC 5258 (CanLII), per James J, at para 26
  4. R v Levin, 2014 ABCA 142 (CanLII), per curiam (3:0), at para 49
    R v Gingras, 1992 CanLII 2826 (AB CA), (1992) 120 AR 300, 71 CCC (3d) 53 (Alta CA), per curiam leave denied [1992] SCCA No. 348
  5. Canada v Worden, 2014 SKPC 143 (CanLII), per Kalmakoff J
  6. See Production of Records for Sexual Offences
  7. O'Connor, supra
  8. see List of Criminal Code Amendments (1984 to 1999)
  9. R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC), per McLachlin and Iacobucci JJ

Third Party Records vs Disclosure

See also: Disclosure#Control

A third party includes Crown entities other than the prosecuting authority and so would be subject to an O'Connor application.[1] This does not apply to materials that the police are under a duty to disclose to the crown as the "fruits of the investigation", in which case it would constitute a first party record.[2]

Records of police investigations of third parties and police disciplinary records, usually constitutes third-party records.[3] Unless the misconduct relates to the investigation or could reasonably impact on the case against the accused.[4]

Records will be either in possession of the Crown or a third party depending on several factors:[5]

  1. whether the information is the "fruits of the investigation";
  2. what the purpose the information was created for;
  3. whether the information was created or obtained as a result of, or in connection to, the specific investigation or prosecution of the accused;
  4. whether the information is sufficiently related to the specific investigation or prosecution
  5. whether there is an intrinsic link, i.e. by a factual and evidential link, to the investigation
  6. the nature and content of the information
  7. whether any third parties have a privacy interest in the information
  1. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0) at 13
  2. McNeil, ibid.
  3. McNeil, ibid., at para 25
  4. McNeil, supra
  5. R v Coopsammy, 2008 ABQB 266 (CanLII), per Thomas J

Crown to Duty to Inquire ("McNeil" Obligations)

Production Orders

Production of Records for Sexual Offences

Procedure

The records keeper must be served with the O'Connor application before it can proceed. [1]

The recommended procedure for obtaining third-party records is:[2]

  • The applicant should obtain a subpoena duces tecum under section 698(1) and 700(1) of the code and serve it on the third-party record holder, compelling them to attend court with the requested records;
  • The applicant must also file an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant on the appeal. Notice of the application must be given to the Crown, the person who is the subject of the records and any other person with a privacy interest in the records. If production is unopposed there is no need for a hearing;
  • If the record holder or some other interested person advances a well-founded claim that the records are privileged, this will usually bar the production application in all but the rarest cases where the applicant’s innocence is at stake;
  • If privilege is not at issue, the court must determine whether production should be compelled in accordance with the two-stage test in O'Connor:
    • First, whether the judge is satisfied that the record is likely relevant to the matter, in which case he can order production of the record for his inspection.
    • Second, after reviewing the records the court determines whether and to what extent the production should be ordered.
  1. R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J, at paras 31 and 32
  2. R v Meer, 2015 ABCA 163 (CanLII), per Veldhuis JA, at para 12 - this process was recommended in the appeal process

Disclosing Specific Materials

School records for crown witnesses will require a third party application.[1]

  1. R v Osborne, 2011 ONSC 111 (CanLII), per Dawson J

Training Materials

In advancing a violation of rights by peace officers, the training manuals applicable to the investigation are of limited relevance since they are not indicative of violations.[1]

  1. R v Ferrari, 2001 SKQB 340 (CanLII), per Maurice J, at para 7
    R v Akinchets, 2011 SKPC 88 (CanLII), per Kalmakoff J - considered training materials on sobriety testing

Police Records ("McNeil Disclosure")

Certain types of police misconduct records have been recommended as being treated as primary disclosure.[1]

McNeil disclosure should include types of evidence such as:[2]

  1. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted].
  2. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act.
  3. Any conviction or finding of guilt under any other federal or provincial statute.
  4. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.
  5. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

The "McNeil" obligation only applies to records of misconduct that is "related to the investigation or the finding of misconduct could reasonably impact on the case against the accused."[3]

The police have an obligation to notify the Crown of any relevant misconduct, as well as seek advice from the Crown on whether the misconduct record is relevant.[4]

The Crown are to exercise a gate-keeper function with respect to the disclosure of these materials to the defence.[5]

Where there are records in possession of the police but the investigators were not aware of them during the course of the investigation, these records will not be subject to McNeil obligations and must be obtained by way of an O'Connor application. [6]

  1. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0) ("[W]here the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance".
  2. McNeil, ibid., at para 57 - known as the "Ferguson Five" categories
  3. McNeil, ibid.
  4. R v Boyne, 2012 SKCA 124 (CanLII), per Ottenbreit JA (3:0), at paras 34, 35
  5. Boyne, supra, at para 35
  6. R v Elkin, 2017 BCSC 245 (CanLII), per Sewell J, at para 31

Calibration Records of Screen Devices and Approved Instruments

See also: Screening Device and Proof of Blood Alcohol Levels

It is an unsettled issue in law of whether the calibration records of a screening device (ASD) or an approved breathalyzer instrument are "first party" or "third party" records.[1]

The records for each device are to be treated separately.[2] In Alberta, it has been found that breathalyzer records are first party records, while ASD records are third party records.[3]

One line of Ontario cases suggest that the Crown has the onus to establish that the records are "clearly irrelevant" before they can refuse to provide defence with them.[4]

The other line of Ontario cases suggest that the Defence has the onus of proving the records are "likely relevant".[5]

  1. R v Oleksiuk, 2013 ONSC 5258 (CanLII), per James J, at paras 29 to 32 summarizing controversy
    R v Sutton, 2013 ABPC 308 (CanLII), per Henderson J - found them not to be first party records
  2. Oleksiuk, ibid., at para 29
  3. see R v Kilpatrick, 2013 ABQB 5 (CanLII), [2013] AJ No 41 (A.C.Q.B.), per Graesser J
    R v Black, 2011 ABCA 349 (CanLII), [2011] AJ No 129, 286 CCC (3d) 432 (C.A.), per Ritter JA (2:1) - found ASD records irrelevant to RPGs of officer
  4. Olekwiuk, supra, at para 30
    R v Gubins, 2009 ONCJ 80 (CanLII), per Pringle J
    R v Pfaller, 2009 ONCJ 216 (CanLII), per Green J
    R v Robertson, 2009 ONCJ 388 (CanLII), per Grossman J
    R v Jemmett, 2009 ONCJ 741 (CanLII), per Wong J
    R v George, 2009 ONCJ 470 (CanLII), per Morneau J
    R v Dionne, 2009 ONCJ 609 (CanLII), per Robertson J
  5. Olekwiuk, supra, at para 31
    R v Bensette, Bensette, 2011 ONCJ 30 (CanLII), [2011] OJ No 403 (C.J.), per Campbell J
    R v Ahmed, 2010 ONCJ 130 (CanLII), [2010] OJ No 1500 (C.J.), per Tuck-Jackson J
    R v Batenchuk, 2010 ONCJ 192 (CanLII), [2010] OJ No 2302 (C.J.), per Maund J
    R v Lenti, 2010 ONCJ 554 (CanLII), [2010] OJ No 5081 (C.J.), per LeDressay J
    R v Carriveau, 2011 ONCJ 837 (CanLII), [2011] OJ No 4318 (C.J.), per Dorval J

Publication Prohibition

; Publication prohibited 276.3 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 276.1 [application to admit complainant’s sexual activity];
(b) any evidence taken, the information given and the representations made at an application under section 276.1 [application to admit complainant’s sexual activity] or at a hearing under section 276.2 [application to admit complainant’s sexual activity - jury exclusion];
(c) the decision of a judge or justice under subsection 276.1(4) [application to admit complainant’s sexual activity - judge to decide to hold hearing], unless the judge or justice, after taking into account the complain­ant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under section 276.2 [application to admit complainant’s sexual activity - jury exclusion], unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
1992, c. 38, s. 2; 2005, c. 32, s. 13.

Repealed, 2018, c. 29, s. 22

CCC

Publication prohibited

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3 [application to produce for sexual offences];
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) [in camera hearing for application to produce] or 278.6(2) [review of hearing to produce — who appears]; or
(c) the determination of the judge pursuant to subsection 278.5(1) [judge may order production of record for review] or 278.7(1) [judge may order production of record to accused] and the reasons provided pursuant to section 278.8 [reasons for decision to produce], unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
Offence

(2) Every person who contravenes subsection (1) [publication prohibited on production hearing] is guilty of an offence punishable on summary conviction.
1997, c. 30, s. 1; 2005, c. 32, s. 14.

CCC

Remedy for Breach of Disclosure Obligation

General Principles

Remedies for lost evidence may include "limits on the Crown’s ability to call evidence, to adjournments, to stays of proceedings."[1]

  1. R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J

Mistrial / Re-Trial

See also: Mistrials

At common law, a mistrial may be granted as a remedy where "there is a 'real danger' of prejudice to the accused or danger of a miscarriage of justice".[1] Late disclosure that causes an unfair trial, even after the trial, can result in a new trial.[2] However, this may not constitute a distinct Charter breach.[3]

Late disclosure does not necessarily result in an unfair trial.[4] A number of factors should be considered.[5]

A new trial can be ordered under s. 24(1) of the Charter due to a failure to disclose where the accused can show a violation of his right to full answer and defence. This requires that there be a "reasonable possibility that the non-disclosure affected the outcome at trial" or that "the overall trial fairness" is affected.[6]

The issue is not whether the evidence "would" have made a difference, it is only a matter of whether it "could" have made a difference and created reasonable doubt.[7] Further, there need only be a "reasonable possibility that the overall fairness...was impaired" such as if it could be used to impeach the witness.[8]

  1. R v Burke, 2002 SCC 55 (CanLII), [2002] 2 SCR 857, per Major J, at para 74
  2. R v C(MH), 1991 CanLII 94 (SCC), [1991] 1 SCR 763, per McLachlin J
    R v Bjelland, 2009 SCC 38 (CanLII), per Rothstein J
  3. R v Douglas, 1991 CanLII 7328 (ON CA), (1991) 5 OR 29, per curiam
  4. R v Rejzek, 2009 ABCA 393 (CanLII), per curiam, at para 26
  5. See R v McQuaid, 1998 CanLII 805, [1998] 1 SCR 244, per Cory J, at para 31
  6. R v Dixon, [1998] 1 SCR 244, 1998 CanLII 805 (SCC), per Cory J, at paras 23, 31 to 35
  7. R v Illes, [2008] 3 SCR 134, 2008 SCC 57 (CanLII){{perSCC|LeBel and Fish JJ}
  8. Illes, ibid.

Exclusion of Evidence

Where late disclosure warrants the exclusion of evidence follow the following principles from R v Bjelland[1]:

(a) Remedies under s. 24(1) of the Charter are flexible and contextual. The exclusion of evidence cannot be ruled out under s. 24(1). However, such a remedy will only be available where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.
(b) The Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show “actual prejudice” to his ability to make full to answer and defence.
(c) An accused must receive a fair trial, however, the trial must be fair from both the perspective of the accused and of society more broadly. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused.
(d) A trial judge should only exclude evidence for late disclosure in “exceptional” cases:
(e) where late disclosure renders the trial process unfair, and the unfairness cannot be remedied through an adjournment and disclosure order, or
(f) where exclusion in necessary to maintain the integrity of the justice system.

Non-disclosed evidence of a witness that has the effect of impairing the defence's case in a material way resulted in the exclusion of that evidence in circumstances where no other remedy is appropriate.[2]

  1. 2009 SCC 38 (CanLII), [2009] 2 SCR 651, per Rothstein J
  2. R v D'Onofrio, [2011] OJ No 1790 (*no CanLII links)

Stay of Proceedings

See also: Stay of Proceedings

Within the rights under section 7 of the Canadian Charter of Rights and Freedoms include the "right to full answer and defence". This right requires the Crown to provide all relevant evidence. A failure to do so may violate this right, and a breach of that right may entitle the accused to a stay of proceedings under s. 24(1) of the Charter.

Where a section 7 Charter breach is alleged on the basis of violating the right to make full answer and defence due to failure to make disclosure, the issue will usually be left for the conclusion of trial. Not only to first determine whether there is insufficient evidence for guilt but also that the judge can properly assess whether the right to full answer and defence was violated in context of the case in its entirety.[1]

Delayed disclosure can be a factor but not a sole basis of seeking a stay.[2]

A failure to provide disclosure that has the effect of depriving counsel of ability to assess case and making informed decisions on the preparation of case.[3]

  1. R v FCB2000 NSCA 35 (CanLII), per Roscoe JA
      R v Banford2010 SKPC 110 (CanLII), per Toth J, at para 10 (overturned at 2011 SKQB 418 (CanLII), per McLellan J on other grounds).
      R v Salisbury2011 SKQB 153 (CanLII), [2011] S.J. No. 259 (Sask.Q.B.), per Gerein J
    R v Burwell, 2011 SKPC 188 (CanLII), per Labach J
  2. R v Dias, 2010 ABCA 382 (CanLII), per curiam
  3. R v Green, 2014 BCPC 84 (CanLII), per Woods - failure to disclose important evidence that would have affected defence strategy. Stay of proceedings.

Costs

See also: Costs

Where failure to disclose is flagrant and unjustified, the court may order costs.[1]

  1. R v 974649 Ontario Inc., 2001 SCC 81 (CanLII), [2001] 3 SCR 575, per McLachlin CJ

Civil Liability

See also: Role of the Crown

The Crown may be civilly liable for damages where there was a failure to disclose and it can be proven that the Crown had "intentionally withheld" the disclosure. Malice is not required. However, the standard will be more than gross negligence.[1]

The claimant must establish causation by showing that a legally recognizable harm was caused by the failure to disclose.[2]

The standard of "intentionally withholding" disclosure should not be interpreted to affect the Crown's decision-making process.[3]

  1. Henry v British Columbia (Attorney General), 2015 SCC 24 (CanLII), per Moldaver J
  2. Henry, ibid., at paras 95 to 98
  3. Henry, ibid., at paras 71 to 73

Demand for Particulars

General Principles

An accused can apply for an order requiring the Crown to provide particulars. Section states:

What may be ordered
What may be ordered

587 (1) A court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality of the foregoing, may order the prosecutor to furnish particulars

(a) of what is relied on in support of a charge of perjury, the making of a false oath or a false statement, fabricating evidence or counselling the commission of any of those offences;
(b) of any false pretence or fraud that is alleged;
(c) of any alleged attempt or conspiracy by fraudulent means;
(d) setting out the passages in a book, pamphlet, newspaper or other printing or writing that are relied on in support of a charge of selling or exhibiting an obscene book, pamphlet, newspaper, printing or writing;
(e) further describing any writing or words that are the subject of a charge;
(f) further describing the means by which an offence is alleged to have been committed; or
(g) further describing a person, place or thing referred to in an indictment.
Regard to evidence

(2) For the purpose of determining whether or not a particular is required, the court may give consideration to any evidence that has been taken.

Particular

(3) Where a particular is delivered pursuant to this section,

(a) a copy shall be given without charge to the accused or his counsel;
(b) the particular shall be entered in the record; and
(c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular.

R.S., 1985, c. C-46, s. 587; R.S., 1985, c. 27 (1st Supp.), s. 7.

CCC

The power to order particulars rests in the discretion of the judge. The judge will only order where it is "necessary".[1]

The dual purpose of particulars is to 1) ensure the defence's "ability to make full answer and defence" and 2) facilitate the administration of justice.[2]

There is no absolute right to particulars.[3] The burden is upon the applicant to establish on the balance of probabilities that the "necessity" to "understand and appreciate that which is alleged against him so as to enable him to adequately prepare and defend against said allegations".[4]

The purpose of orders for particulars is: (1) "to give exact and reasonable information to the accused respecting the charges before the court"; and (2) to "facilitate the administration of justice." [5]

The applicable factors to ordering particulars are set out as follows:[6]

  1. The purpose of particulars in a criminal trial is twofold. The first is to give exact and reasonable information to the accused respecting the charge against him as will enable him to establish his defence.[7]

The second purpose is to facilitate the administration of justice.[8]

  1. To facilitate the administration of justice, it is essential that the trial judge has sufficient information before him or her by means of particulars as to what the Crown intends to prove against the accused in order that the trial judge may make “proper, adequate and expeditious rulings on the admissibility or otherwise of evidence sought to be deduced”[9]
  2. In the event a preliminary inquiry was held, particulars and related information available from the transcript thereof are to be taken into account in applications for particulars[10]
  3. The defence carries the burden of satisfying the court that the particulars sought are necessary for a fair trial.
  4. An order for particulars is a discretionary power of the court and not an absolute right of the accused[11]
  5. Section 587 does not require the Crown to give specific details of acts and omissions relevant to the offence charged, save where the same is clearly necessary for the purposes of a fair trial[12]

The request should be granted when the ability to mount a proper defence or the fairness of trial are impacted.[13]

The application should be considered in light of the amount and coverage of the disclosure already provided.[14]

After the rules provided in Stinchcombe requests for particulars has become far less frequent.[15]

The application should not be aimed at discovering the Crown's theory.[16] It should not be used to bind the Crown in preventing them from pursuing one theory or method of proof over another.[17]

Particulars have the effect of forming "part of the indictment and like the other elements of the indictment, must be proven beyond a reasonable doubt".[18]

  1. R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623, per McLachlin CJ, at para 33
  2. R v McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII), per Derrick J, at para 7
    R v Canadian General Electric Co., [1974] OJ No 13 (HCJ), 1974 CanLII 1540 (ON SC), per Pennell J, at paras 33 and 35
  3. R v Hunter, Goshinman and Anderson (1986), 23 CCC (3d) 331 (Alta. C.A.), 1985 ABCA 301 (CanLII), per Lieberman JA, at para 33
  4. R v McLaren, 1995 CanLII 6031 (SK QB), per Grotsky J
  5. Canadian General Electric, supra, at para 35
  6. R v Imperial Tobacco Co. et al., [1940] 1 DLR 397, 1 W.W.R. 124, 73 CCC 18 (Alta. T.D.), 1940 CanLII 238 (AB QB), per McGillivray J
    Canadian General Electric, supra
    R v Cominco Ltd. et al., (1978), 91 DLR (3d) 541, 41 CCC (2d) 514, 13 A.R. 106 (Alta. T.D.), 1978 CanLII 1997 (AB QB), per Brennan J
    cf. R v McGavin Bakeries et al. (1950), 99 CCC 330, 1 W.W.R. (N.S.) 129, 11 C.R. 227 (Alta. T.D.), 1950 CanLII 372 (AB QB), per McBride J
    see also E.G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., (Toronto: Canada Law Book, 2003), at pp. 9-41br>
  7. Canadian General Electric, supra, at p. 443
  8. R v Adduono, 1940 CanLII 109 (ON CA), [1940] 1 DLR 597, 73 CCC 152 (Ont. C.A.), per Masten JA
    See also R v Côté, 1977 CanLII 1 (SCC), [1978] 1 SCR 8, at p. 13, (1977), 73 DLR (3d) 752, 2 W.W.R. 174, 33 CCC (2d) 353, per de Grandpré J
  9. Cominco, supra, at para 15
    R v General Electric, supra, the secondary purpose of particulars was illustrated as follows at 443 (CCC): ". . .When a conspiracy count involves an alleged widespread complicated conspiracy for the accomplishment of a purpose going beyond the performance of individual acts, the particulars furnished will assist the Judge in ruling on the relevancy of the evidence. To adopt a homely form of words, at trial circumscribed by particulars will not wander all over the shop and will foreclose an unreal controversy."
  10. McGavin Bakeries, supra; R v Cominco; R v Leverton, [1917] 2 W.W.R. 584, 34 DLR 514, 28 CCC 61 (Alta. C.A.), 1917 CanLII 378 (AB CA), per Harvey CJ, at pp. 519-22 (DLR)
  11. R v Griffin, [1935] 2 DLR 503, 63 CCC 286 (N.B.S.C.), 1935 CanLII 279 (NB CA), per Grimmer JA
    R v Hunter, 1986 ABCA 81 (CanLII), (1986), 23 CCC (3d) 331 (Alta. C.A.), per Stevenson J, at p. 338
  12. McGavin Bakeries, supra
    Cominco, supra
  13. R v Violette, 2008 BCSC 185 (CanLII), per Romilly J, at para 50
  14. Violette, ibid., at para 50
    R v Cargill Limited -Cargill Limitee, 2000 ABPC 96 (CanLII){, per Stevenson J, at para 14
  15. e.g. see R v Dalton (R.C.), 1999 CanLII 19775 (NL SCTD), per Halley J, at para 12
    R v Badry, 2000 ABPC 126 (CanLII), per Norheim J
  16. R v Sharpe, 2004 BCSC 241 (CanLII), per Edwards J, at paras 8 to 11
    R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ
  17. Thatcher, ibid., at paras 60, 61
  18. McCarthy's Roofing, supra, at para 8
    R v Saunders, [1990] 1 SCR 1020, 1990 CanLII 1131 (SCC), per McLachlin J, at paras 5 and 6
    R v Dalton (R.C.), 1999 CanLII 19775 (NL SCTD), per Halley J, at para 11

See Also

Production Orders

General Principles

A Production Order is a judicial authorization that compels a person, including an organization, to disclose documents and records to an authorized peace officer.[1]

Compared to Search Warrants

A production order cannot be used to circumvent standard search warrant to invade privacy of an accused.[2]

History

On March 9, 2015, Protecting Canadians from Online Crime Act 2014, c. 31 (Bill C-13) came into force re-drafting the production order provisions. General production orders moved from 487.012 to 487.014, 487.013 to 487.018.[3]

Section 487.012 and 487.013 (pre-2015) came into force September 15, 2004.[4]

  1. Canadian Broadcasting Corp. v Manitoba (Attorney General), 2009 MBCA 122 (CanLII), per Steel JA, at para 24 (it compels "third parties in possession of information relevant to a criminal investigation to produce and generate documents and data for law enforcement agencies.")
  2. R v Huynh, 2012 ABCA 37 (CanLII), per curiam, at para 45
  3. see pre-2015 amendment version
  4. see pre-2015 amendment version

Procedure

Unlike warrants, there is no need for the filing of a Report to Justice upon seizing records.[1] The only exception is for Trace Specified Communications Production Orders under s. 487.015(6).

  1. There is varying case law on this point
    cf. R v Croft, 2014 ABQB 206 (CanLII), per Burrows J - albeit under the pre-2014 production provisions

Types of Production Orders

Compelling Production

Particulars — production orders

487.0192 (1) An order made under any of sections 487.014 [general production orders] and 487.016 to 487.018 [production orders for data] must require a person, financial institution or entity to produce the document to a peace officer or public officer named in the order within the time, at the place and in the form specified in the order.

Particulars — production order to trace specified communication

(2) An order made under section 487.015 [production order to trace specified communication] must require a person to produce the document to a peace officer or public officer named in the order as soon as feasible after they are served with the order at the place and in the form specified in the order.

Form of production

(3) For greater certainty, an order under any of sections 487.014 to 487.018 [production orders] may specify that a document may be produced on or through an electro-magnetic medium.

Non-application

(4) For greater certainty, sections 489.1 [restitution of property or report by peace officer] and 490 [detention, access and disposal of things seized] do not apply to a document that is produced under an order under any of sections 487.014 to 487.018 [production orders].
...
2014, c. 31, s. 20.
[annotation(s) added]

CCC

Production Records as Evidence

See also: Documentary Evidence

487.0192
...

Probative force of copies

(5) Every copy of a document produced under section 487.014 [general production orders] is admissible in evidence in proceedings under this or any other Act of Parliament on proof by affidavit that it is a true copy and has the same probative force as the document would have if it were proved in the ordinary way.

Canada Evidence Act

(6) A document that is prepared for the purpose of production is considered to be original for the purposes of the Canada Evidence Act.
2014, c. 31, s. 20.

CCC

Application to Revoke or Vary a Production Order

Application for review of production order

487.0193 (1) Before they are required by an order made under any of sections 487.014 to 487.018 [production orders] to produce a document, a person, financial institution or entity may apply in writing to the justice or judge who made the order  —  or to a judge in the judicial district where the order was made  —  to revoke or vary the order.

Notice required

(2) The person, institution or entity may make the application only if they give notice of their intention to do so to a peace officer or public officer named in the order within 30 days after the day on which the order is made.

No obligation to produce

(3) The person, institution or entity is not required to prepare or produce the document until a final decision is made with respect to the application.

Revocation or variation of order

(4) The justice or judge may revoke or vary the order if satisfied that

(a) it is unreasonable in the circumstances to require the applicant to prepare or produce the document; or
(b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law.

2014, c. 31, s. 20.

CCC


The terms of all production orders can be varied under s. 487.019(3):

487.019
...

Power to revoke or vary order

(3) On ex parte application made by a peace officer or public officer, the justice or judge who made the order  —  or a judge in the judicial district where the order was made  —  may, on the basis of an information on oath in Form 5.0081 [forms], revoke or vary the order. The peace officer or public officer must give notice of the revocation or variation to the person who is subject to the order as soon as feasible.
2014, c. 31, s. 20; 2019, c. 25, s. 193.
[annotation(s) added]

CCC

The decision to vary or revoke under s. 487.0193(4)(b) is a discretionary one on the part of the court.[1]

Revocation or Variance for Reasons of Protected Information

Section 487.0193(4)(b) permits a judge to revoke or vary an order where the order would disclose information that is "privileged or otherwise protected from disclosure by law".[2]

  1. R v Nova Scotia (Ombudsman), 2017 NSCA 31 (CanLII), per Fichaud JA, at para 32
  2. Nova Scotia (Ombudsman), ibid., at para 25

Misc Aspects of Production Orders

Court can add conditions to all types of production orders from s. 487.014 to 487.017.

Conditions in preservation and production orders

487.019 (1) An order made under any of sections 487.013 to 487.018 [provisions on production orders] may contain any conditions that the justice or judge considers appropriate including, in the case of an order made under section 487.014 [general production orders], conditions to protect a privileged communication between a person who is qualified to give legal advice and their client.
...
2014, c. 31, s. 20; 2019, c. 25, s. 193.

CCC

All types of production order from s. 487.014 to 487.017 have national application.

487.019
...

Effect of order

(2) The order has effect throughout Canada.
...
2014, c. 31, s. 20; 2019, c. 25, s. 193.

CCC

Protection From Liability

For greater certainty

487.0195 (1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

No civil or criminal liability

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
2014, c. 31, s. 20.

CCC

Self-incrimination

487.0196 No one is excused from complying with an order made under any of sections 487.014 to 487.018 [production orders] on the ground that the document that they are required to produce may tend to incriminate them or subject them to a proceeding or penalty. However, no document that an individual is required to prepare may be used or received in evidence against them in a criminal proceeding that is subsequently instituted against them, other than a prosecution for an offence under section 132 [perjury – punishment], 136 [witness giving contradictory evidence] or 137 [fabricating evidence].
2014, c. 31, s. 20.

CCC

Breach of Production Orders

Offence — preservation or production order

487.0198 A person, financial institution or entity that contravenes an order made under any of sections 487.013 to 487.018 [provisions on production orders] without lawful excuse is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than six months, or to both.
2014, c. 31, s. 20.
[annotation(s) added]

CCC

Production by Consent

Where documents are voluntarily and lawfully provided to a peace officer who is executing his duties, there is no need for a production order.[1]

Section 25 protects those acting in authority from criminal liability.[2]

Sealing Orders

Costs

A company that is subject to a production order will normally have to bear the costs involved with producing the records. [1]

The authorizing justice does not have power to order that the target of the production order be compensated for the cost associated with compliance.[2]

  1. Canada (Attorney General) v Pacific International Securities Inc., 2006 BCCA 303 (CanLII), per Smith JA
  2. Tele-Mobile Co. v Ontario, [2008] 1 SCR 305, 2008 SCC 12 (CanLII), per Abella J

See Also

Special Disclosure Issues

Disclosure to Crown

There are limited obligations on defence to disclose evidence to the Crown. The primary obligation to disclose defence evidence is when alibi evidence will be advanced.[1]

Where defence is calling expert evidence supported by a report, the report and any other foundation materials must be disclosed to the Crown no later than the time at which the witness is called.[2]

  1. See Alibi
  2. R v Stone, [1999] 2 SCR 290, 1999 CanLII 688 (SCC), per Bastarache J

Pre-Charter and Pre-Stinchcombe Disclosure

Under the common law the Crown has a general duty to disclose material evidence to the defence regardless of whether it is favourable to the Crown and whether the witness will be called by the Crown.[1] A breach of the common law duty render the trial unfair and be ground for appeal.[2]

  1. R v Lemay, 1951 CanLII 27 (SCC), [1952] 1 SCR 232, per Kerwin J
  2. R v C(MH), [1991] 1 SCR 763, 1991 CanLII 94 (SCC), per McLachlin J

Uses of Disclosure Other Than For Defence

When defence take possession of disclosure there is an implied undertaking "not to disclose its contents for any purpose other than making full answer and defence in the proceedings".[1] They have an obligation as officers of the court to not disclose any materials to the public.[2] Disclosure to third-parties is only available where their "examination or possession of the material is in good faith necessary to prepare and conduct the defence".[3]

The Crown can petition the Court to order that defence counsel return any disclosure given to them once the entitlement to the materials have expired.[4]

  1. R v Basi, 2011 BCSC 314 (CanLII), per MacKenzie ACJ, at para 42 ("...I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.")
    R v Little, 2001 ABPC 13 (CanLII), per Meagher J
    R v Mossaddad, 2017 ONSC 5520 (CanLII), per Edwards J, at para 38 ("...the time has come for this court to recognize that whether or not the Crown disclosure provided to defence counsel or a self-represented accused is the subject of a written undertaking, that a deemed undertaking nonetheless would apply such that the only basis upon which the Crown disclosure may be used would be in the context of providing a full answer and defen