Full Text:Volume 4C

Role of the Crown

• < Procedure and Practice
• < Role of Parties in Proceedings

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.

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

Prosecuting Crown as Judicial Office

The role of the prosecuting Crown is "quasi-judicial." It has been suggested that counsel ought to regard themselves as "part of the Court rather than as an advocate."

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

Code of Conduct

In each province, there is a code of conduct or code of ethics that applies to lawyers practicing in that province. These rules also contain additional obligations upon Crown counsel.

The province's rules for prosecutors are all largely uniform, requiring prosecutors under Rule 5.1-3: "When acting as a prosecutor, a lawyer must act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect."

Discretion

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

Subpoenas

The Crown may avoid a subpoena seeking them to provide evidence justifying the basis for exercising their discretion, such as in a coroner's inquest. However, a subpoena to attend a commission inquiry to explain their actions will be enforceable.

Reviewability of Advice

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

Duties in Handling of Multiple Charges

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

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".

History

Prior to 1879, most prosecutions in England were brought to the court privately.The powers of the Attorney General concerns mainly initiaiting, managing and terminating prosecutions.

Historically the King was the guardian of the peace and governed the informations and indictments filed with the court. represents the Crown's suits against the accused and are in their control.

Definition of Crown, Prosecutor and Attorney General

• 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".

The purpose of a prosecution can be seen as an investigation, without feeling or animus, with a single view to determine the truth.

Duties of Crown Counsel

The role of a prosecutor is to "assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused".

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. The role is also characterized as one of ensuring that "justice is done".

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.

A criminal proceeding is not a contest between a prosecution that seeks to convict and an accused seeking acquittal.

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". 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." They should not be engaging in "[h]yperbole and overstatement".

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.

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." 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".

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

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.

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

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.

Duty to Recommend Penalties

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

Discretion of Crown

• Prosecutorial Discretion

Relationship with Police

The crown must remain separate from the 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."

A critical part of the Crown's independence is its independence from police.

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

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

The Crown has no legal duties to the police on how they choose to conduct a prosecution. To a degree the law immunizes the Crown against allegation of misfeasance by police.

Relationship with Defence Counsel

Despite the special status of Crown, it is still treated as being in an "adversarial role" to the accused in many respects.

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. 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.

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

Relationship with the Courts

Concessions

Any concessions of law that are made by the Crown are non-binding on the Court.

Courts generally take a "dim view" to the Crown conceding constitutional cases given that they have "wide ramifications" to other parties.

However, concessions of a factual nature or mixed fact and law involve tactical and strategic decisions are so are more likely to be honored.

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.

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.

Non-Appearance of Crown

803
[omitted (1), (2) and (3)]

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 (CanLII), (DOJ)

---

Relationship with Witnesses

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

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".

Obligation to Call Witnesses

• see Prosecutorial_Discretion#Calling_Witnesses

Preparation

Guidelines on the preparation of witnesses by crown include:

• 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.

Intervening Crowns

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

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 (CanLII), (DOJ)

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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 (CanLII), (DOJ)

---

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. There is some "fluidity" allowed to the Crown chancing the theory "to accommodate changes in the evidence", including changes arising from the accused testifying.

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

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.

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.

It may not necessarily be unfair for the Crown to change its theory of the case mid-trial to a lesser included offence.

Crown Changing Position

The Crown can change its trial strategy at its discretion as the trial unfolds unless the defence can show that it is abusive, had an "oblique motive" or prejudicial.

Generally, it must be shown that the Crown had broken some agreement, undertaking or quid pro quo.

Crown Duty to Correct the Record

All lawyers, including Crown, have a duty not to mislead the court. That includes a duty not to keep silent in the face of a falsehood.

Crown has a duty to correct any evidence that they know or ought to know is false or misleading.

Disqualification

Counsel can be disqualified from acting as Crown counsel where there is a loss of objectivity.

Loss of objectivity can be inferred from admissions of bias or enmity, as well as actions and statements.

See Also

• Crown Duty to Disclose

Related

• Definitions of Parties, Persons, Places and Organizations
• Remote Attendance in Court

Other Parties

• Role of the Accused
• Role of the Defence Counsel
• Role of the Trial Judge
• Role of the Victim and Third Parties
• Role of Law Enforcement

Crown Policy Manuals

• BC Crown Policy Manual
• Alberta Policy Manual
• Nova Scotia Crown Policy Manual

Prosecutorial Discretion

• < Procedure and Practice
• < Role of Parties in Proceedings

This page was last substantively updated or reviewed December 2017. (Rev. # 79573)

General Principles

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

This discretion "accord[s]" with and sourced from the principles of fundamental justice. It is an "indisputable device for the effective enforcement of the criminal law."

History

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

Review

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

Application

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

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

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

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.

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

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

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"

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

• 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
• consenting or refusal to consent to re-election
• notice to seek increased penalty

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.

Constitutionality

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

Calling Witnesses

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

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

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.

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."

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

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

Evaluating Whether to Prosecute (Charge Screening)

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

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

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

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

• 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

• Nova Scotia
• Ontario
• Alberta
• British Columbia [14]
• Federal Crown

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

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".

See Also

• Abuse of Process by Crown Counsel

Role of the Defence Counsel

This page was last substantively updated or reviewed March 2021. (Rev. # 79573)

• < Procedure and Practice
• < Role of Parties in Proceedings

General Principles

The defence counsel have several duties including:

• 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". 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".

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. Concerns only for counsel performance, without a prejudice having occurred, can only be addressed by the profession's self-governing body.

Conduct

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

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."

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

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.

Duty to Streamline

For the purposes of analysis under s. 11(b), the defence have an obligation to avoid promulgating a culture of delay.

There is suggestion that defence have some obligation to "identify ... issues that will actually be in play at trial", which should be used to assist the court streamlining evidentiary issues.

Civility

Trials are not "tea parties." But "disruptive and discourteous conduct" is antithetical to peaceful and orderly resolution of disputes. It is also said that a "trial is not open season’ for attacks on opposing counsel and litigants."

A mistrial may be required where the conduct is inappropriate such as in the use of:

• “unrestrained invective” (at para. 34).;
• “excessive rhetoric” (at para. 34).;
• “The tone of [counsel's] submissions … descended from legal argument to irony to sarcasm to petulant invective” (at para. 64).
• “[counsel's] theatrical excess reached new heights …”.
• “[counsel's] conduct on this occasion more resemble guerilla theatre than advocacy in court” (at para. 91).
• “unrestrained repetition of … sarcastic attacks";
• “[counsel's] defence consists largely of attacks on the prosecution, including attacks on the prosecutor’s integrity” (at para. 272).

Duty to the Court

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

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.

Jury Nullification

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

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.

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

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

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.

Duty of Loyalty and Confidentiality

A lawyer representing an accused must have undivided loyalty to their client. 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.

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."

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

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.

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

Defence counsel is obliged, "within ethical and legal limits", to protect the interests of their client.

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:

• 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".

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

Instructions Against Interest

Where counsel receives instructions that will "imperil" imperil the accused's interests, counsel is obligated to resist those instructions, but if unsuccessful, should follow them. It is recommended that defence counsel should prefer getting the instructions in writing rather than simply withdrawing as counsel.

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.

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".

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

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.

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.

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

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

Right to Discharge

The accused has an unfettered right to discharge their legal counsel at any time for any reason.

Withdraw for Ethical Reasons

A judge must grant any request by counsel to withdraw for ethical reasons. 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.

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.

Withdraw for Lack of Payment

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

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

• 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 consider whether a withdrawal would cause "serious harm to the administration of justice". The relevant harm will include that harm to other persons affected by prolonging the proceedings, including "complainants, witnesses, jurors and society at large".

Whether the time booked can be used for other purposes is not a relevant factor.

Returning Documents in Possession of Counsel

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

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.

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

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".

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.

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.

See Also

• Representation at Trial
• Ineffective Counsel
• Guilty Plea
• Remote Attendance in Court

Other Parties

• Role of the Crown
• Role of the Accused
• Role of the Trial Judge
• Role of Law Enforcement
• Role of the Victim and Third Parties

Conflicts of Interest

This page was last substantively updated or reviewed June 2021. (Rev. # 79573)

• < Procedure and Practice
• < Role of Parties in Proceedings

General Principles

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

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.

Timing of Raising Issue

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

Requirements

The party alleging the conflict must demonstrate that:

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:

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." 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."

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.

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

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

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. 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."

Procedure

A procedure suggested to consider conflicts goes as follows:

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;
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.

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."

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

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.

Accused's Choice of Conflicted Counsel

The right to choice of counsel is not an absolute right.

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

Effect of Codes of Conduct

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

Duty to Previous Clients

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

Examples

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

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.

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

A revocable waiver can also give rise to disqualification.

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.

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

When representing multiple co-accused there is always the risk of conflict. 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.

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

It is expected that before accepting a retainer from a co-accused, counsel must "fully disclose to both [co-accused] the issues and risks associated with concurrent representation" as well as get both of their informed consent and conclude that they can represent both co-accused without adversely affecting the each other.

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

Where there is concurrent representation of two co-accused, the issue to be determined with any allegation of divided loyalty is whether "there was actual conflict of interests" and whether "one of the co-accused did not receive effective representation." This test applies equally to circumstances where the two accused are involved in different matters.

Consequence of Being in Conflict

Where counsel is in conflict, their representation becomes tainted by a divided loyalty.

Duty of Loyalty

The duty of loyalty is the foundation of the solicitor-client relationship. This duty includes the duty of confidentiality.

This duty also includes the duty to avoid conflicting interests. Defence counsel owe a duty to the client to avoid conflicts of interest. This rule protects against:

1. prejudice arising from the "misuse of confidential information obtained from a client"; and
2. prejudice arising from the counsel "soft peddling" the representation of one client to the benefit of others, including the other client.

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

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

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

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:

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.

This first stage is considered the "bright line" rule.

Duty of Confidentiality

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

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

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."

The rule intends to balance the three factors of:

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. As such the mischief must be real and not speculative.

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:

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. 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."

See Also

• Role of the Defence Counsel

Obligation of Accused to be Present During Proceedings

This page was last substantively updated or reviewed November 2022. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

Appearance Other Than Trial

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.

Under Part XVI, Compelling Appearance of an Accused Before a Justice and Interim Release, s. 502.1 reads:

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 (ss. 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 (ss. 493 to 529.5)] shall appear in person 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 (ss. 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 (ss. 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 (ss. 493 to 529.5)] shall participate in person 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 (ss. 493 to 529.5)] shall preside in person but may preside by audioconference or videoconference, if the justice considers it necessary in the circumstances.
2019, c. 25, s. 216; 2022, c. 17, s. 30(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

This provision came into force on December 18, 2019.

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.

Section 650 sets out the base requirement that the accused be present for their trial on an indictable matter as well as exceptions and other permitted accommodations. The section states:

Accused to be present

650 (1) Subject to subsections (1.1) and (2) [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 their trial, either in person or, if authorized under any of sections 715.231 to 715.241 , by audioconference or videoconference.
[omitted (1.1) and (2)]

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; 2022, c. 17, s. 39.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Section 650 protects the "fundamental right" and "duty" to be present at trial. Violation of the section will generally render the trial void irrespective of whether any prejudice was caused. Counsel are not permitted to waive this requirement.

The prohibition is more lenient in certain circumstances. Non-presence of the accused during counsel submissions on an admissibility issue, absent prejudice, can be treated as a procedural irregularity and may not require a new trial.

Purpose of s. 650

There are two purposes for the requirement of personal attendance for trial. First, it permits the accused to hear the evidence so as "to put forward a defence". Second, the accused is able to see "that the correct procedure is followed and that the trial is fair".

It further respects the "right of the accused to fully participate in the proceedings".

Meaning of "presence"

Presence includes presence during sentencing.

Presence includes having sufficient "mental capacity to participate in the proceedings in a meaningful way"

A proceeding against an accused who is not "mentally present" is equivalent to proceeding in absentia.

Charter and section 650

Where there is a violation of s. 650, it may also amount to a violation of s. 7 and 11(d) of the Charter of Rights and Freedoms. A Charter violation cannot be treated as a procedural irregularity.

History

The statutory requirement was first found in the Criminal Code 1954.

What Constitutes "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.The key factor is whether the proceedings involved the accused's "vital interests."

Vital Interests

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".

This can include any "normal part of the trial process" of "determining guilt".

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.

Examples

The following are examples that are "part of the trial process":

• arraignment and plea,
• the empanelling of the jury,
• the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence),
• rulings on evidence,
• arguments of counsel,
• addresses of counsel to the jury,
• the judge's charge, including requests by the jury for further instructions,
• the reception of the verdict and
• imposition of sentence if the accused is found guilty.

Contact with Jurors

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

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

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.

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.

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

Trial 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.

Exception

650

[omitted (1) and (1.1)]

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.

[omitted (3)]
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; 2022, c. 17, s. 39.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Whether to excuse an accused from attending is a matter of judicial discretion and should be considered on its own merits.

Considerations should include:

• whether the accused was "fully aware of the consequences of his decision";
• whether the court is content the counsel will represent the interests of the accused;
• not acting under compulsions to avoid delay.

Historically, the exceptions listed in s. 650(2)(b) are applied with restraint.

An accused can waive his right to be present at trial, and be permitted to be excluded under s. 650(2)(b), where the court is satisfied that the wavier is "informed, clear, and unequivocal".

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.

Summary Offences

In Part XXVII concerning summary convictions, s. 800 reads:

When both parties appear

800 (1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.

Counsel or agent

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

(2.1) [Repealed, 2022, c. 17, s. 53]

[omitted (3)]
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317; 2022, c. 17, s. 53.

– CCC (CanLII), (DOJ)

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Remote Attendance

This page was last substantively updated or reviewed January 2020. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

General Principles

Remote Attendance in Court of persons other than witnesses is largely governed by Part XXII.01 of the Criminal Code (s. 715.21 to 715.26).

Attendance

715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

2019, c. 25, s. 292.

– CCC (CanLII), (DOJ)

---

Provisions providing for audioconference or videoconference

715.‍22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

2019, c. 25, s. 292.

– CCC (CanLII), (DOJ)

---

Topics

• Remote Attendance of Judges or Jurors
• Remote Attendance of Accused (715.23 to 715.24)
  • Obligation of Accused to be Present During Proceedings
• Remote Attendance of Witnesses (Remote Testimony)
• Remote Attendance of Counsel or Certain Other Participants (715.25 and 715.26)
• Remote Attendance at the Court of Appeal

Remote Attendance of Accused

This page was last substantively updated or reviewed January 2023. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

General Principles

Accused to be present

650 (1) Subject to subsections (1.1) and (2) [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 their trial, either in person or, if authorized under any of sections 715.231 to 715.241 , by audioconference or videoconference.

Appearance by counsel

(1.1) The court may, with the consent of the prosecutor and the accused, allow the accused to appear by counsel for any part of the trial, other than a part in which the evidence of a witness is taken.

(1.2) [Repealed, 2022, c. 17, s. 39]

[omitted (2) and (3)]
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; 2022, c. 17, s. 39.

– CCC (CanLII), (DOJ)

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PART XXII.‍01 

Remote Attendance by Certain Persons

Principles

Attendance

715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so in person.

2019, c. 25, s. 292; 2022, c. 17, s. 45(E).

– CCC (CanLII), (DOJ)

---

Provisions providing for audioconference or videoconference

715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

2019, c. 25, s. 292.

– CCC (CanLII), (DOJ)

---

General

Reasons

715.221 If the court denies a request respecting a person’s appearance or participation by audioconference or videoconference under this Part, it shall include in the record a statement of the reasons for the denial.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Cessation

715.222 If the court allows or requires a person’s appearance or participation by audioconference or videoconference under this Part, it may, at any time, cease the use of those technological means and take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceedings.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

---

In Part XX.01 concerning remote attendance by certain persons, s. 715.23 reads:

Accused and Offenders

Considerations — appearance by audioconference or videoconference

715.23 Before making a determination to allow or require an accused or offender to appear by audioconference or videoconference under any of sections 715.231 to 715.241, the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the accused or offender;

(b) the costs that would be incurred if the accused or offender were to appear in person;

(c) the suitability of the location from where the accused or offender will appear;

(d) the accused’s or offender’s right to a fair and public hearing; and

(e) the nature and seriousness of the offence.

2019, c. 25, s. 292; 2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

---

Preliminary inquiry

715.231 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at the preliminary inquiry.

2022, c. 17, s. 46

– CCC (CanLII), (DOJ)

---

Trial — summary conviction offence

715.232 The court may allow an accused to appear by videoconference at a trial for a summary conviction offence

(a) if the accused is not in custody, with the consent of the accused and the prosecutor; and

(b) if the accused is in custody, with the consent of the accused.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Trial — indictable offence

715.233 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at a trial for an indictable offence. However, an accused must not appear by videoconference during a jury trial when evidence is being presented to the jury.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Plea

715.234 (1) The court may, with the consent of the prosecutor and the accused, allow an accused to appear by audioconference or videoconference for the purpose of making a plea.

Limitation

(2) The court may allow the accused to appear by audioconference only if it is satisfied that

(a) videoconferencing is not readily available; and

(b) the appearance by audioconference would permit the court to inquire into the conditions for accepting a plea of guilty under subsection 606(1.1) despite the fact that the court would not be able to see the accused.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Sentencing

715.235 (1) The court may, with the consent of the prosecutor and the offender, allow an offender to appear by audioconference or videoconference for sentencing purposes.

Limitation

(2) The court may allow the offender to appear by audioconference only if videoconferencing is not readily available.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Accused in prison

715.‍24 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 videoconference, 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.

– CCC (CanLII), (DOJ)

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Accused in custody — no evidence taken

715.241 Despite sections 715.231 to 715.233, the court may allow or require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Conditions — no access to legal advice

715.242 Despite anything in this Act, before allowing an accused or offender who does not have access to legal advice during the proceedings to appear by audioconference or videoconference, the court must be satisfied that they will be able to understand the proceedings and that any decisions made by them during the proceedings will be voluntary.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

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Communication with counsel

715.243 An accused or offender who appears by audioconference or videoconference must be given the opportunity to communicate privately with counsel if they are represented by counsel.

2022, c. 17, s. 46

– CCC (CanLII), (DOJ)

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Audioconference and videoconference

Section 2 defines "audioconference" and videoconference".

Preliminary Inquiry

Powers of justice

537 (1) A justice acting under this Part may

[omitted (a), (b), (c), (d), (e), (f), (g), (h) and (i)]

(j) if the prosecutor and the accused consent, allow the accused to appear by counsel for any part of the inquiry, other than a part in which the evidence of a witness is taken; and

(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.

[omitted (1,01), (1.02), (1.1) and (2)]
(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; 2022, c. 17, s. 35.

– CCC (CanLII), (DOJ)

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See also

• Obligation of Accused to be Present During Proceedings
• Remote Attendance of Counsel or Other Participants
• Remote Testimony
• Remote Attendance at the Court of Appeal

Remote Attendance of Counsel or Certain Other Participants

This page was last substantively updated or reviewed January 2020. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

General Principles

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.

A participant, including counsel, may appear under s. 715.25:

Definition of participant

715.25 (1) In this section, participant means any person, other than an accused, an offender, a witness, a juror, a judge or a justice, who may participate in a proceeding.

Participation by audioconference or videoconference

(2) Except as otherwise provided in this Act, the court may allow a participant to participate in a proceeding by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the participant;

(b) the costs that would be incurred if the participant were to participate in person;

(c) the nature of the participation;

(d) the suitability of the location from where the participant will participate;

(e) the accused’s right to a fair and public hearing; and

(f) the nature and seriousness of the offence.

(3) [Repealed, 2022, c. 17, s. 47]

(4) [Repealed, 2022, c. 17, s. 47]

Costs

(5) Unless the court orders otherwise, a party who has a participant participate by audioconference or videoconference shall pay any costs associated with the use of that technology.

2019, c. 25, s. 292; 2022, c. 17, s. 47.

– CCC (CanLII), (DOJ)

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Jury Trials

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 (CanLII), (DOJ)

---

See Also

• Obligation of Accused to be Present During Proceedings
• Remote Attendance of Witnesses
• Remote Attendance of Judges or Jurors
• Remote Attendance at the Court of Appeal
• Representation and Attendance on Appeal

Remote Attendance of Witnesses

This page was last substantively updated or reviewed March 2021. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

General Principles

The truth seeking function of a trial generally requires the presentation of evidence in court. However, personal attendance is not always possible. Consequently, sections such as 714.1 and 714.2 provide exception to this rule to allow for evidence to be taken remotely.

"In person" testimony is said to assist in testing "truth telling".

History

Various new provisions relating to remote appearance of witnesses were introduced by Bill C-75. The purposes were aimed at expanding the use of technology to "ensure fair and efficient proceedings while enhancing access to justice".

Inside Canada

Section 714.1 of the Criminal Code allows a court to use “means of technology” to allow a witness to testify as a “virtual presence”.

Audioconference and videoconference — witness in Canada

714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear in person;

(c) the nature of the witness’ anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused’s right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

1999, c. 18, s. 95; 2019, c. 25, s. 290; 2022, c. 17, s. 44(E).

– CCC (CanLII), (DOJ)

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Purpose

The purpose of s. 714.1 is to "address not only the high cost of litigation, but also the inconvenience of disruption to the lives of witnesses" where the witnesses are outside of Canada. Consequently, the higher the cost and inconvenience harder it is to resist video link as an option.

Presumption

There is a presumption that "unless the circumstances warrant dispensing with the usual practice, the witness should be called to the witness stand to testify." Section 714.1 "does not replace the established procedure of calling witnesses to the witness stand in criminal cases or of allowing the accused to face his or her accuser"

Analysis

The court may allow video testimony if it is "appropriate" in "all the circumstances" including:

• the location and personal circumstances of the witness
• the costs that would be incurred if the witness had to be physically present; and
• the nature of the witness’ anticipated evidence.

s. 714.1

The court can do "a sort of distance-cost, benefit-prejudice analysis" to decide. Naturally, most applicants have witnesses that are in "more remote regions of Canada."

Where credibility is not at issue, the consideration is a "balance of convenience".

It has been said that only in the "rarest of cases" that a complainant should testify by video-link.

Factors

Factors to consider include:

1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross‑examine that witness?

2) the nature of the evidence to be introduced from the witness and whether it is non‑controversial and not likely to attract any significant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect to exhibits and the like and other matters that would not attract any particular objection on the part of the accused's counsel;

3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom;

4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance;

5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, personal life and the like;

6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion;

7) the cost to the state of having the witness attend in person; and

8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial.

While the form of the order is at the discretion of the judge, the court should always order that witness be able to testify in a manner in which he can be seen, heard, and questioned by the parties. The court may also request the evidence only be given while the witness is in a courtroom and in the presence of a peace officer.

Nature of the Evidence

A case where credibility is central to the dispute will weigh on the side against the use of video testimony. Courts should be "very reluctant" when an issue of the case is one of credibility.

Some suggestion that video only be considered in "exceptional circumstances" that "personally impact" the witness. And where the witness is a complainant it must be "compelling" reasons.

Cost-Savings

However, "cost saving to the state,...,in and of itself does not justify" the use of video conferencing.

Technology

As the quality of video links improve to a point where the distinction from in-person testimony is "almost negligible", judges have increased their support in their use.

Where the quality of the technology is a concern, there are instances the Court has been given an opportunity to see the proposed video link in operation or "alternatively makes an order conditional on a satisfactory test run."

Procedure

It has been recommended that there needs to be a "strong evidentiary foundation" before a court should permit video link, particularly when the witness is the complainant. This is especially so when credibility is at issue with the witness, in which case "compelling evidence" is required.

See also:

• R v Hinkley, 2011 ABQB 567 (CanLII), 523 AR 400, per Marshall J
• R v Denham, 2010 ABPC 82 (CanLII), 500 AR 211, per Rosborough J

Outside Canada

Sections 714.2 addresses the circumstances where the court may take evidence by video link from a witness located outside of Canada. The section states:

Videoconference — witness outside Canada

714.2 (1) A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

Notice

(2) A party who wishes to call a witness to give evidence under subsection (1) [video conference – witness outside Canada] shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than 10 days before the witness is scheduled to testify.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Once an application is made with proper notice, Section 714.2 creates a presumption that places the onus is upon the party that opposes the use of the video link to establish that its use would be "contrary to the principles of fundamental justice"

The difference in the standard between 714.1 and 714.2 "reflects the mischief being addressed", which includes the high cost of litigation and the disruption to the lives of those witnesses, which will be greater when out of country.

Up to 2017, all published decisions resulted in a granting of testimony by video link.

The court must allow video testimony unless it is contrary to the "principles of fundamental justice", including the right to full answer and defence.

s. 714.2

Factors to Consider

Other factors other than cost include:

• ability or willingness of a witness to attend;
• nature of the testimony;
• dependence on exhibits;
• necessity; and
• reliability.

Costs

The costs associated with any application under s. 714.1 to 714.4 concerning evidence by audio or video link will be covered by the party calling the witness.

Audio-only Testimony

Section 714.1 addresses the circumstances where the court may take evidence from a witness located within Canada by means of audio telecommunication. The section states:

Outside of Canada

Section 714.3 and 714.4 addresses the circumstances where the court may take evidence from a witness located outside of Canada by means of audio telecommunication.

Audioconference — witness outside Canada

714.3 The court may receive evidence given by a witness outside Canada by audioconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including those set out in paragraphs 714.1(a) to (g) [audioconference and videoconference – circumstances].

1999, c. 18, s. 95; 2019, c. 25, s. 290.

– CCC (CanLII), (DOJ)

---

Evidence Outside of Canada

Order for examination of witness in Canada

46 (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.

Video links, etc.

(2) For greater certainty, testimony for the purposes of subsection (1) [order for examination of witness in Canada] may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.
R.S., 1985, c. C-5, s. 46; 1999, c. 18, s. 89.

– CEA

---

Enforcement of the order

47. On the service on the party or witness of an order referred to in section 46 [order for examination of witness in Canada], and of an appointment of a time and place for the examination of the party or witness signed by the person named in the order for taking the examination, or, if more than one person is named, by one of the persons named, and on payment or tender of the like conduct money as is properly payable on attendance at a trial, the order may be enforced in like manner as an order made by the court or judge in a cause pending in that court or before that judge.
R.S., c. E-10, s. 44.

– CEA

---

Expenses and conduct money

48. Every person whose attendance is required in the manner described in section 47 [enforcement of the order] is entitled to the like conduct money and payment for expenses and loss of time as on attendance at a trial.
R.S., c. E-10, s. 45.

– [http://canlii.ca/t/7vf5#sec48

---

Administering oath

49. On any examination of parties or witnesses, under the authority of any order made in pursuance of this Part, the oath shall be administered by the person authorized to take the examination, or, if more than one person is authorized, by one of those persons.
R.S., c. E-10, s. 46.

– CEA

---

Right of refusal to answer or produce document

50 (1) Any person examined under any order made under this Part has the like right to refuse to answer questions tending to criminate himself, or other questions, as a party or witness, as the case may be, would have in any cause pending in the court by which, or by a judge whereof, the order is made.

Laws about witnesses to apply — video links etc.

(1.1) Despite subsection (1), when a party or witness gives evidence under subsection 46(2) [interrogatories – video links], the evidence shall be given as though they were physically before the court or tribunal outside Canada, for the purposes of the laws relating to evidence and procedure but only to the extent that giving the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.

Contempt of court in Canada

(1.2) When a party or witness gives evidence under subsection 46(2) [interrogatories – video links], the Canadian law relating to contempt of court applies with respect to a refusal by the party or witness to answer a question or to produce a writing or document referred to in subsection 46(1), as ordered under that subsection by the court or judge.

Nature of right

(2) No person shall be compelled to produce, under any order referred to in subsection (1) [refusal to comply and contempt], any writing or other document that he could not be compelled to produce at a trial of such a cause.
R.S., 1985, c. C-5, s. 50; 1999, c. 18, s. 90.

– CEA

---

Rules of court

51 (1) The court may frame rules and orders in relation to procedure and to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.

Letters rogatory

(2) In the absence of any order in relation to the evidence to be produced in support of the application referred to in subsection (1) [rules of court], letters rogatory from a court or tribunal outside Canada in which the civil, commercial or criminal matter is pending, are deemed and taken to be sufficient evidence in support of the application.
R.S., 1985, c. C-5, s. 51; 1999, c. 18, s. 91.

– CEA

---

Special Issues of Remote Technology

Refusal or Termination of Remote Technology

Must Give Reasons For Not Taking Evidence Remotely

Reasons

714.4 If the court does not make an order under section 714.1 [audioconference and videoconference – witness in Canada] or does not receive evidence under section 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada], it shall include in the record a statement of the reasons for not doing so.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Cessation

714.41 The court may, at any time, cease the use of the technological means referred to in section 714.1 [audioconference and videoconference – witness in Canada], 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada] and take any measure that the court considers appropriate in the circumstances to have the witness give evidence.

2019, c. 25, s. 290.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Misc Consequences

Costs of Costs of technology

714.7 Unless the court orders otherwise, a party who calls a witness to give evidence by means of the technology referred to in section 714.1 [audioconference and videoconference – witness in Canada], 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada] shall pay any costs associated with the use of the technology.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Consent

714.8 Nothing in sections 714.1 to 714.7 [video and audio evidence] is to be construed as preventing a court from receiving evidence by audioconference or videoconference, if the parties so consent.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Testimonial Aids for Young, Disabled or Vulnerable Witnesses
• Precedent - Testimony by Video-link

Remote Attendance of Judges or Jurors

This page was last substantively updated or reviewed January 2020. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

Remote Attendance by Judge, Justice or Juror

Judge or Justice

Presiding by audioconference or videoconference

715.‍26 (1) Except as otherwise provided in this Act, the judge or justice may preside at the proceeding by audioconference or videoconference, if the judge or justice considers it necessary having regard to all the circumstances, including

(a) the accused’s right to a fair and public hearing;

(b) the nature of the witness’ anticipated evidence;

(c) the nature and seriousness of the offence; and

(d) the suitability of the location from where the judge or justice will preside.

Reasons

(2) The judge or justice shall include in the record a statement of the judge or justice’s reasons for the decision to preside at the proceeding by audioconference or videoconference.

Cessation

(3) The judge or justice may, at any time, cease the use of the technological means referred to in subsection (1) [presiding by audioconference or videoconference] and take any measure that the judge or justice considers appropriate in the circumstances to preside at the proceeding.
2019, c. 25, s. 292.

– CCC (CanLII), (DOJ)

---

Prospective Jurors

Definition of prospective juror

715.27 (1) In this section, prospective juror means a person who has been summoned as a juror and who has not yet been sworn in accordance with Part XX [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)].

Participation by videoconference

(2) The court may, with the consent of the prosecutor and the accused, allow or require any or all prospective jurors to participate in the jury selection process by videoconference if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the challenges related to the in-person participation of prospective jurors;

(b) the nature of the participation;

(c) the suitability of the location from where the prospective jurors will participate;

(d) the privacy and security of the prospective jurors;

(e) the accused’s right to a fair and public hearing; and

(f) the nature and seriousness of the offence.

Location provided

(3) The court may require prospective jurors to participate by videoconference only if the court has approved a location that will be provided for their participation where the technology for videoconferencing is available.

No location provided

(4) The court shall give prospective jurors the option to participate in person if it allows for their participation by videoconference but no location approved by the court is provided for their participation by those means.

2022, c. 17, s. 48.

– CCC (CanLII), (DOJ)

---

{{{4}}}

Remote Attendance at the Court of Appeal

This page was last substantively updated or reviewed January 2020. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence
• < Remote Attendance

Appearance by Parties

683
[omitted (1) and (2)]

Virtual presence of parties

(2.1) In proceedings under this section, the court of appeal may order that the presence of a party may be by any technological means satisfactory to the court that permits the court and the other party or parties to communicate simultaneously.
[omitted (2.2)]

Application of sections 715.25 and 715.26

(2.3) Sections 715.25 [provisions re participants for audio and video conference] and 715.26 [judge or justice appearing by audio or videoconference] apply, with any modifications that the circumstances require, to proceedings under this section.
[omitted (3), (4), (5), (5.1), (6) and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29; 2019, c. 25, s. 281.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Appearance by Witnesses

683
[omitted (1), (2) and (2.1)]

Virtual presence of witnesses

(2.2) Sections 714.1 to 714.8 [video and audio evidence] apply, with any modifications that the circumstances require, to examinations and cross-examinations of witnesses under this section.
[omitted (2.3), (3), (4), (5), (5.1), (6) and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29; 2019, c. 25, s. 281.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

See Also

• Remote Attendance of Counsel or Other Participants
• Remote Attendance of Witnesses
• Representation and Attendance on Appeal

Role of Law Enforcement

This page was last substantively updated or reviewed January 2020. (Rev. # 79573)

• < Procedure and Practice
• < Role of Law Enforcement

General Principles

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. 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.

Tort Liability

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

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

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."

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

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

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.

Undercover operations

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

Police Representing Crown

While it may have been available in the past, police are not allowed to appear at bail hearings for indictable offences.

Police Powers

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.

Statutory Powers

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

• Liquor and Cannabis Control legislation
• Motor Vehicle legislation
• Mental Health legislation
• Protection of Property legislation

Topics

• Investigative Detention
• Warrantless Arrests
• Warrant Arrests
• Warrantless Search in Exigent Circumstances
• Authorized Searches Under s. 487
• Seizure of Property

Authority by Police Type

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

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

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.

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

Consequence of Not Making Notes

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

Intentional failure to make notes may have negative consequences if it associated with a Charter breach. 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.

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

Special Cases For Notes

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

• performing a warrantless search of electronic devices (see Search Incident to Arrest)
• performing a warrantless strip/body cavity searches (Search Incident to Arrest#Strip Searches)
• Justifying the use of force during an arrest or search (see Arrest Procedure and Manner of Search)

Information Sharing

Records containing personal information held by the RCMP are governed by s. 8 of the Privacy Act. RCMP are permitted to share personal information under limited circumstances including sharing with:

• "an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed;" (s. 8(2)(e))

Special Authorizations

• Powers to Suppress Riots
• Authorizations to Commit Illegal Acts

See Also

• Abuse of Process by Law Enforcement
• State and Police Misconduct as a Sentencing Factor
• Peace Officers

Other Parties

• Role of the Accused
• Role of the Defence Counsel
• Role of the Trial Judge
• Role of the Victim and Third Parties
• Role of the Crown

Authorizations to Commit Illegal Acts

This page was last substantively updated or reviewed January 2019. (Rev. # 79573)

• < Procedure and Practice
• < Role of Law Enforcement

General Principles

It is a constitutional requirement that everyone, including all public officers, are subject to the ordinary laws of the country.

Unless permitted by statute, a peace officer is not permitted to break the law in order to execute his or her duties.

Definitions

25.1 (1) The following definitions apply in this section and sections 25.2 to 25.4 [public officer to file annual report].
"competent authority" means, with respect to a public officer or a senior official,

(a) in the case of a member of the Royal Canadian Mounted Police, the Minister of Public Safety and Emergency Preparedness, personally;

(b) in the case of a member of a police service constituted under the laws of a province, the Minister responsible for policing in the province, personally; and

(c) in the case of any other public officer or senior official, the Minister who has responsibility for the Act of Parliament that the officer or official has the power to enforce, personally.

"public officer" means a peace officer, or a public officer who has the powers of a peace officer under an Act of Parliament.
"senior official" means a senior official who is responsible for law enforcement and who is designated under subsection (5) [power to designate senior officials].

Principle

(2) It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.

Designation of public officers

(3) A competent authority may designate public officers for the purposes of this section and sections 25.2 to 25.4 [public officer to file annual report].

Condition — civilian oversight

(3.1) A competent authority referred to in paragraph (a) or (b) of the definition of that term in subsection (1) [protection of law enforcement – definitions] may not designate any public officer under subsection (3) [power to designate a public officers] unless there is a public authority composed of persons who are not peace officers that may review the public officer’s conduct.

Declaration as evidence

(3.2) The Governor in Council or the lieutenant governor in council of a province, as the case may be, may designate a person or body as a public authority for the purposes of subsection (3.1), and that designation is conclusive evidence that the person or body is a public authority described in that subsection.

Considerations

(4) The competent authority shall make designations under subsection (3) [power to designate a public officers] on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally, rather than in relation to any particular investigation or enforcement activity.

Designation of senior officials

(5) A competent authority may designate senior officials for the purposes of this section and sections 25.2 to 25.4 [public officer to file annual report].

Emergency designation

(6) A senior official may designate a public officer for the purposes of this section and sections 25.2 to 25.4 [public officer to file annual report] for a period of not more than 48 hours if the senior official is of the opinion that

(a) by reason of exigent circumstances, it is not feasible for the competent authority to designate a public officer under subsection (3) [power to designate a public officers]; and

(b) in the circumstances of the case, the public officer would be justified in committing an act or omission that would otherwise constitute an offence.

The senior official shall without delay notify the competent authority of the designation.

Conditions

(7) A designation under subsection (3) [power to designate a public officers] or (6) [protection of law enforcement – emergency designation] may be made subject to conditions, including conditions limiting

(a) the duration of the designation;

(b) the nature of the conduct in the investigation of which a public officer may be justified in committing, or directing another person to commit, acts or omissions that would otherwise constitute an offence; and

(c) the acts or omissions that would otherwise constitute an offence and that a public officer may be justified in committing or directing another person to commit.

Justification for acts or omissions

(8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) [persons acting at direction of public officer] — that would otherwise constitute an offence if the public officer

(a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;

(b) is designated under subsection (3) [power to designate a public officers] or (6) [protection of law enforcement – emergency designation]; and

(c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.

Requirements for certain acts

(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10) [persons acting at direction of public officer], unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c) [requirements for public officer immunity from criminal offences], he or she

(a) is personally authorized in writing to commit the act or omission — or direct its commission — by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties; or

(b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to

(i) preserve the life or safety of any person,

(ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or

(iii) prevent the imminent loss or destruction of evidence of an indictable offence.

Person acting at direction of public officer

(10) A person who commits an act or omission that would otherwise constitute an offence is justified in committing it if

(a) a public officer directs him or her to commit that act or omission and the person believes on reasonable grounds that the public officer has the authority to give that direction; and

(b) he or she believes on reasonable grounds that the commission of that act or omission is for the purpose of assisting the public officer in the public officer’s law enforcement duties.

Limitation

(11) Nothing in this section justifies

(a) the intentional or criminally negligent causing of death or bodily harm to another person;

(b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or

(c) conduct that would violate the sexual integrity of an individual.

Protection, defences and immunities unaffected

(12) Nothing in this section affects the protection, defences and immunities of peace officers and other persons recognized under the law of Canada.

Compliance with requirements

(13) Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence.

Exception — Controlled Drugs and Substances Act and Cannabis Act

(14) Nothing in this section justifies a public officer or a person acting at his or her direction in committing an act or omission — or a public officer in directing the commission of an act or omission — that constitutes an offence under a provision of Part I of the Controlled Drugs and Substances Act or of the regulations made under it or a provision of Division 1 of Part 1 of the Cannabis Act.

2001, c. 32, s. 2; 2005, c. 10, s. 34; 2018, c. 16, s. 207.
[annotation(s) added]

– [http://canlii.ca/t/7vf2#sec25

---

Public officer to file report

25.2 Every public officer who commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) [offence by public officers permitted – written authority] or (b) [offence by public officers permitted – exigent circumstances] shall, as soon as is feasible after the commission of the act or omission, file a written report with the appropriate senior official describing the act or omission.
2001, c. 32, s. 2.
[annotation(s) added]

– [http://canlii.ca/t/7vf2#sec25.2

---

Annual report

25.3 (1) Every competent authority shall publish or otherwise make available to the public an annual report for the previous year that includes, in respect of public officers and senior officials designated by the competent authority,

(a) the number of designations made under subsection 25.1(6) [protection of law enforcement – emergency designation] by the senior officials;

(b) the number of authorizations made under paragraph 25.1(9)(a) [offence by public officers permitted – written authority] by the senior officials;

(c) the number of times that acts and omissions were committed in accordance with paragraph 25.1(9)(b) [offence by public officers permitted – exigent circumstances] by the public officers;

(d) the nature of the conduct being investigated when the designations referred to in paragraph (a) or the authorizations referred to in paragraph (b) were made or when the acts or omissions referred to in paragraph (c) were committed; and

(e) the nature of the acts or omissions committed under the designations referred to in paragraph (a) , under the authorizations referred to in paragraph (b) and in the manner described in paragraph (c) .

Limitation

(2) The annual report shall not contain any information the disclosure of which would

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(b) compromise the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer;

(c) endanger the life or safety of any person;

(d) prejudice a legal proceeding; or

(e) otherwise be contrary to the public interest.

2001, c. 32, s. 2.
[annotation(s) added]

– [http://canlii.ca/t/7vf2#sec25.3

---

Written notification to be given

25.4 (1) When a public officer commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) [offence by public officers permitted – written authority] or (b) [offence by public officers permitted – exigent circumstances], the senior official with whom the public officer files a written report under section 25.2 [public officer to file annual report] shall, as soon as is feasible after the report is filed, and no later than one year after the commission of the act or omission, notify in writing any person whose property was lost or seriously damaged as a result of the act or omission.

Limitation

(2) The competent authority may authorize the senior official not to notify the person under subsection (1) [written notification to be given] until the competent authority is of the opinion that notification would not

(a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament;

(b) compromise the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer;

(c) endanger the life or safety of any person;

(d) prejudice a legal proceeding; or

(e) otherwise be contrary to the public interest.

2001, c. 32, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

A civilian can be authorized to commit a criminal act or omission when directed by a public officer or otherwise acting as an agent.

Accused in Court

This page was last substantively updated or reviewed January 2023. (Rev. # 79573)

• < Procedure and Practice
• < Trials

Right to Self-Representation

• Right to Self-Representation

Accused's Obligation to be Present in Court

• Obligation of Accused to be Present During Proceedings

Video-link Appearance

See also: Procuring the Attendance of a Prisoner

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.

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 (CanLII), (DOJ)

---

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. The court must be satisfied that the accused "absented himself... for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences."

The court is permitted to proceed to sentencing in the absence of the accused, where there is sufficient information to do so.

The finding that the accused absconds is not permitted to be used as an aggravating factor to sentencing but can remove mitigating factors.

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

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 (CanLII), (DOJ)

---

Deceased Accused

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

There are some exceptions permitted for pending appellate matters.

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 consider it on its merits. Discretion should be exercised where the court is satisfied that:

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.

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

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

"Scarce judicial resources" should rarely be a "disqualifying consideration."

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

Factors

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

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.

Special Issues of Accused Appearances

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."

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.

Use of Restraints in Court

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

Sitting Position of Accused

• Sitting Position of the Accused at Trial

Right to Representation

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

Organizations as Accused

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

See Also

Other Parties

• Role of the Defence Counsel
• Role of the Trial Judge
• Role of the Victim and Third Parties
• Role of Law Enforcement
• Role of the Crown

Sitting Position of the Accused at Trial

• < Procedure and Practice
• < Trials

General Principles

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.

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

Visibility of Accused

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

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. It has further been suggested that the presumption should prevail unless "a miscarriage of justice has been established."

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."

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.

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.

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".

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.

Sitting with Counsel

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

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

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.

Weapons

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

Burden

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

Factors

Factors have been suggested to determine whether to grant the request:

• 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.

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

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.

Court Appointed Counsel

This page was last substantively updated or reviewed January 2020. (Rev. # 79573)

• < Procedure and Practice

General Principles

State-funded Counsel ("Rowbotham" applications)

There is no constitutional right to state-funded trial counsel. 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.

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.

Requirements for State-funded Counsel

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

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:

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."

Appointment of counsel should not limited to "exceptional cases."

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. Whether the accused acted in good faith or attempted delay proceedings is a finding of fact and given considerable deference.

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

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."

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.

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.

Financial Means

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

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.

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

Fair Trial

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

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

Limited Retainer

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

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.

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.

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

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) [legal assistance for appellant] 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) [legal assistance for appellant – fees and disbursements] 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 (CanLII), (DOJ)

---

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

The factors to consider have been stated as:

1. The merits of the appeal;
2. The complexity of the appeal;
3. The appellant’s capability;
4. The court’s role to assist; and
5. The responsibility of Crown counsel to ensure that the applicant is treated fairly.

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. 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.

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.

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

See Also

• Forms for Court Appointed Counsel (Alberta)

Amicus Curae

This page was last substantively updated or reviewed July 2023. (Rev. # 79573)

• < Procedure and Practice
• < Trials

General Principles

A superior court and provincial court dealing with criminal matters, has the discretion to appoint an amicus curiae counsel who will assist the court in the proceedings. This power arises from their inherent authority to "control their processes in order to function as courts of law" as well as the jurisdiction to " permit a particular proceeding to be successfully and justly adjudicated."

An amicus can play a variety of roles as determined by the Court. There is no fixed role that they must play.

Right to Self-Representation

The accused has a right to represent himself and cannot be forced to apply for counsel through legal aid or by way of a Robotham application. However, an accused has no ability to discharge an amicus.

Duty is Always to the Court

In any circumstances, the "defining characteristic" of an amicus is that their primary duty is to the court and responsibility to ensure "the proper administration of justice." The amicus is not a lawyer to the accused, but rather is effectively a lawyer to the court.

Purpose

An amicus curiae is counsel appointed by the court to assist an accused in representing himself. This is a more limited role than accused's counsel and does not require the confidence or consent of the accused. The amicus will provide assistance such as

1. objecting to perceived legal errors;
2. assisting the appellant in drafting a statement of the defence position;
3. assisting the appellant in subpoenaing any defence witnesses; and
4. advising the appellant on any questions of law.

The role played by an Amicus, depending on the case, can range from relatively detached to fully engaged in the accused's behalf.

The meaning of an amicus curiae "implies the friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong."

Whether to Appoint

The court must consider whether it can provide adequate guidance to an unrepresented accused such that it would permit a fair and orderly trial without an amicus.

The judge should be mindful of whether an amicus is necessary to ensure the trial proceeds reasonably.

The imposition of an amicus should be done "sparingly" and only in "exceptional circumstances."

When Not to Appoint

The use of appointment should not undermine judicial independence, a legal aid scheme, or a ruling denying Rowbotham counsel.

The court should not "impose counsel on an unwilling accused".

Terms and Conditions of Amicus

The court may also set the terms and conditions of the appointment related to counsel's compensation.

The court cannot impose "all of the powers and duties" of defence counsel, but can have them assume "defence-like functions."

An Amicus cannot "control the litigation strategy".

There is no solicitor-client privilege between the amicus and accused but the necessary confidentiality can flow from a Crown undertakign in consenting to the appointment of amicus.

Amicus for Step Six Garofoli hearings

There is no special or enhanced obligation to appoint an amicus on a "Step Six" Garofoli application.However, it should be done in "particularly difficult cases."

Appeal of Appointment

Where the accused discharges their counsel who is subsequently appointed as amicus curiae, the accused can only appeal the appointment if there is an actual conflict of interest between the accused and his counsel.

Statutory Forms of Amicus Curae

Under 486.3(1), in any proceedings involving a cross-examination of a witness under 18 years of age and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination unless the "proper administration of justice requires".

Under 486.3(2), in any proceedings involving a cross-examination of a witness and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination where it is necessary "in order to obtain a full and candid account".

Under 486.3(4), in any proceedings involving a cross-examination of a witness with respect to an offence of criminal harassment (264) and the accused is self-represented, the prosecutor or witness may apply to have counsel appointed to conduct the cross-examination unless the "proper administration of justice requires".

Cross-Examination Counsel

Section 486.3 counsel must confer with the accused to "ensure that all appropriate lines of questioning consistent with the theory of the defence are pursued" during cross-examination. They are not, however, required to have to be tied to a script approved by the accused. Any objections the accused has with the line of questions of the amicus can be "mediated" by the trial judge.

Role of Trial Judge

This page was last substantively updated or reviewed November 2022. (Rev. # 79573)

• < Procedure and Practice
• < Trials

General Principles

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

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

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."

Adversarial System

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. For this reason, it is improper for the judge to usurp the role of counsel in an inquisitorial manner.

The role of the judge in an adversarial process is to "listen to the testimony, assess all the evidence, make assessments of credibility and findings of fact, apply the law to the facts and make an ultimate determination on the merits, keeping in mind throughout the applicable burdens of proof." The judge is also expected to "ensure the proceedings are conducted fairly, properly and according to law, which include the rules governing procedure."

Presumed to Know the Law

Trial judges are presumed to know the elementary principles of law. It is not necessary that a judge cite the leading authorities, it is only necessary that the legal principles be applied properly.

Inherent Jurisdiction

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

Duty to Raise Issues

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

Duty of Restraint

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

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

Duty of Technological Competency

It has been suggested that courts and counsel have a duty of "technological competency."

ex mero motu

The doctrine of "ex mero motu" ("of one's own accord") has traditionally permitted a judge to intervene on its own motion in proceedings by making rules or issuing orders so as to prevent an injustice. This authority has been used to amend charges to conform with the evidence.

History

Currently, Justices of superior courts are required to retire at the age of 75. Prior to a 1960 amendment to the British North America Act, superior court justices had lifetime tenure.

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 . The right to be heard also provides a person "the right to know the case to be met".

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.

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.

This right is protected by s. 7 and 11(d) of the Charter as well as s. 802(1) of the Code.

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.

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

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

The right is not an unlimited right to oral or in-person hearings before the decision-maker.

Often the right can be satisfied by providing parties to make written submissions only.

Timing of Interrim Rulings

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

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

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

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". This will include where "the trial court itself is implicated in a constitutional violation" or where "substantial on-going constitutional violations require immediate attention." 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. This is especially true where the trial is expected to be of considerable duration.

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 to make rules with respect to 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. Failure to do so is an error of law.

However, there is no requirement that the judge "record all or any specific part of the process of deliberation on the facts." 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.

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

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.

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. However, where a judge relies on a theory that has not been argued, fairness requires that the defence be given an opportunity to respond to the avenue of conviction.

Weighing Evidence

No judge is expected to be a "tabula rasa".

A judge should only be deciding cases on the evidence adduced in the courtroom.

A judge cannot act based only on personal knowledge and familiarity of a matter without more.

A judge may not "detach" a part of the evidence.

Control over Trial Process

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

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

The jurisdiction over process includes the power to "penalize counsel for ignoring rules or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire." Penalties can include direction to "comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings."

Inappropriate behaviour is not accorded deference.

However, legitimate tactical decisions should be looked at with deference.

Superior Court

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

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

Provincial Court

The "procedural directions contained in the Code are of necessity exhaustive". The powers of a provincial court judge are "entirely statutory." 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.”

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.

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"

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."

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.

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".

Directing Crown Counsel

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

Judicial Intervention

• Judicial Intervention During Trial

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. The judge may even disallow the submission of non-relevant evidence.

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.

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.

Reserving Questions for Decision

Trial continuous

645
[omitted (1), (2) and (3)]

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 (CanLII), (DOJ)

---

Exclusion Public from Hearing

• Excluding People From Court

Self-Represented Accused

see Right to Self-Representation

Sitting Position of Accused

• Accused in Court

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".

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

It is not inappropriate to use academic articles merely to outline the generally understood features of evidence already reflected in the commentary and practice, adnd are not outside the general knowledge of judges.

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 (CanLII), (DOJ)

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Loss of Judge During Proceedings

• Loss of Judge During Proceedings

Doctrine of Functus Officio

• 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." It also preserves "confidence of the public in the impartiality of the judiciary and thereby in the administration of justice".

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

"Off the Record" communciations

So called "off the record" conversations between the judge and counsel concerning a criminal proceedings are only permitted insofar as they are efforts to reach an informal resolution on the merits of the case. They should not happen mid-trial in front of the trial judge.

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 (CanLII), (DOJ)

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

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

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

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.

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.

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 (CanLII), (DOJ)

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View

• Demonstrative Evidence#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.

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

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:

• 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".

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:

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".

Limitations

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

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

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."

Examples of Application

A publication ban was ordered by inherent jurisdiction. A publication ban can also be removed by inherent jurisdiction.

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

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".

Civility and Professionalism

Tone of Reasons

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

Sleeping

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

Criticizing Judges

It is the public's right to criticize judges as long as it does not cast aspersions on their motives.

Code of Conduct

The Canadian Judicial Counsel (CJC) has a CJC’s Ethical Principles for Judges that all judges must follow.

Courtroom conduct

The judges are expected to display an attitude that reflects their authority. They must not use it to intimidate or belittle others.

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.

Rulings and Orders

The decision to exercise discretion and require the reading of charges despite waiver, is not an order but is a ruling that can be reviewed on certiorari.

No Personal Preferences, Ideologies or Political Beliefs

A judge should not "wander into the public square" by using their decisions to signal their personal preferences, ideologies or political beliefs.

Reading Decisions

Where the decision is lengthy there is no prohibition against reading a summary in the presence of the accused then giving a written version at a later point. It is possible to give reasons part orally and part written. However, it is only the oral reasons that are operative.

The principle of openness and accountability requires that the essential reasoning be given orally.

The essential reasoning should include a "summary [to] clearly set out the offence, the essential reasoning of the trial judge, and the conclusion on the charge".

Delivery of Decisions

When a decision is lengthy, the trial judge may read a summary in court before the accused and then provide a more comprehensive and detailed copy in the written version that is filed on the record. However, it is the reasons given to the accused orally that are the "operative reasons" or "essential reasons". A failure to include sufficient reasons in the oral decision could run afoul of s. 650 and s. 7 and 11(d) of the Charter of Rights and Freedoms. The essential or operative parts of the reasons must include (a) the charges, (b) the verdict on each charge (c) some explanation for the result.

Sufficiency of reasons could be in the range of 9 paragraphs summarizing a 33 page decision.

Supplementary Reasons

The judge may lawfully provide supplementary reasons in the following circumstances:

1. "A trial judge may declare an outcome with "reasons to follow""
2. "The trial judge may have lengthy reasons prepared, and essentially finalized, but due to the length read only a summary, followed by immediate release of the longer version."
3. "The trial judge may announce his or her decision, but then correct that decision when an obvious error or illegality is identified."
   

e.g. R v Vader, 2019 ABCA 191 (CanLII), 89 Alta LR (6th) 146(complete citation pending) at paras. 56-57, (complete citation pending) </ref>

1. "The trial judge gives reasons that appear to deal with all the issues, and outline all of his or her reasons, but then releases truly “supplemental” reasons that add arguments or issues."

How much an initial decision and supplementary reasons can change depends on the circumstances.

Generally, editing for punctuation, grammar, citations are permitted. But changes that revise, correct, or reconsider the words spoken or the substance of the reasoning is not permitted.

Appellate Review of Supplementary Decisions

Parties are permitted to argue the discrepancies between the decisions.

It is open to the appellate court to ignore the supplementary reasons. And may simply review the decision on the initial reasoning.

The appeal courts can examine both sets of reasons when assessing the issue of appeal.

Relationship with the Legislatures

A judge must act as a "constitutionally mandated referee".

It is not courts that limit legislatures, rather it is the constitution that limits them by means of judicial interpretation.

It is the role of the legislature to assume the "responsibility of law reform".

Judicial Neutrality and Bias

• Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

• Sufficiency of Reasons

Misc Authority of Youth Court Justice

• Miscellaneous Authority of a 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 (CanLII), (DOJ)

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See Also

• Judicial Immunity/Judicial Independence
• Judicial Notice
• Trial Verdicts
• Juries
• Criminal Code and Related Definitions#Judges

Other Parties

• Role of the Accused
• Role of the Defence Counsel
• Role of the Victim and Third Parties
• Role of Law Enforcement
• Role of the Crown
• Role of Court Administration

Judicial Intervention During Trial

This page was last substantively updated or reviewed July 2021. (Rev. # 79573)

• < Procedure and Practice
• < Trials

General Principles

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

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

It should be expected on the part of counsel and the judge that a "trial is not a tea party", especially in a criminal case where the stakes are so high. This also means that the judge must be cautious when intervening to balance the risk of trial unfairness against the obligation to control the process, which may require rebuking or correcting counsel.

Presumption of Propriety

There is a "strong presumption" that a judge has not unduly intervened in a trial.

Standard of Review

The issue of whether intervention is inappropriate asks whether the intervention lead to an unfair trial and result in a miscarriage of justice. Assessment must be from the perspective of a "reasonable observer" who was present throughout the whole trial.

Mere excessive intervention, without more, is not enough.

The absence of objections from counsel is a factor to consider.

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."

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." Where necessary judge should ask questions of witnesses, interrupt testimony and call them to order.

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

Intervention During Examinations

Right to Questioning

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

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

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

Presumption of Non-Intervention

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

Intervention Alone Not Improper

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

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

Trial Fairness

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

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."

Failure to Object

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

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.

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

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.

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.

The judge is entitled in:

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. A judge should generally only ask questions after the examination is complete.

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.

Questioning a Witness

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

The judge may ask questions to clarify evidence or have the witness repeat part of an unheard answer.

Leading Questions

The judge should not cross examine the witness. The judge should remain neutral. However, this is not a strict rule and that the mere presence of some leading questions does not amount to the creation of partiality.

Procedure

It is most proper if the judge wait until the end of the witnesses testimony before asking questions and once the questions are complete, invite counsel for further re-examination on the topics raised.

Intervening Outside of Examinations

A judge is well within their authority to ask questions of counsel after closing submissions to clarify submissions. It is commonplace, proper and lawful.

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 (ss. 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 [definition of appeal court] 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) [powers of provincial and territorial coruts to make rules] 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 (CanLII), (DOJ)

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Manner of Interpretation

The rules created by a court should be subject to the "ordinary principles of 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

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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 (ss. 841 to 849)] of the Criminal Code, with any modifications that the circumstances require, or other appropriate forms, may be used.

– YCJA

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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

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See Also

• Precedents, Court Forms and Checklists

Procedural Powers of a Preliminary Inquiry Judge

• < Procedure and Practice
• < Preliminary Inquiry

This page was last substantively updated or reviewed December 2022. (Rev. # 79573)

General Principles

Powers of justice

537 (1) A justice acting under this Part [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 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 (ss. 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];

[omitted (j)]

(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.

(k) [Repealed, 2022, c. 17, s. 35]

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 (ss. 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; 2022, c. 17, s. 35.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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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 (CanLII), (DOJ) CCC]

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

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. Unavailable evidence that would assist in full answer and defence has no bearing on the preliminary inquiry process.

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 (CanLII), (DOJ)

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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 (CanLII), (DOJ)

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Publication Bans

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))

Statement of Issues and Witnesses Under Section 536.3

• < Procedure and Practice
• < Preliminary Inquiry

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 (CanLII), (DOJ)

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Mandatory Rule

The provisions are said to be "mandatory". 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.

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". It was considered a compromise between those seeking to abolish the hearing and those wishing to keep it.

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."

Appropriate Issues

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

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". The issues cannot be listed in a "perfunctory manner" or in "overbroad or obscure" terms.

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".

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

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".

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.

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. The only obligation of the Crown in calling evidence at the hearing is to establish a prima facie case.

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.

Rules by Province

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

• see Form A - Identifying Issues and Witnesses

Judicial Immunity

This page was last substantively updated or reviewed January 2018. (Rev. # 79573)

• < Evidence
• < Testimonial Evidence

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.

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." However, some suggestion is that this also means they are not competent to testify either.

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

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

Giving Evidence and Compelling Attendance

A judge is not compellable to give evidence concerning their "process of adjudication". However, a judge may be compellable concerning their administrative functions.

Judicial Independence

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

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."

Sources of Judicial Independence

Judicial Independence comes from an "unwritten constitutional principle"

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

Two Aspects of Independence

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

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."

Purpose

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

Salaries

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

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

Judicial Privilege

Judicial independence includes a judicial privilege that protects judges from civil suits and an immunity from testimony concerning their conduct in the course of their judicial duties.

This privilege protects the judicial institution not individual judges. It cannot be waived by parties or the individual judges.

See Also

• Competence and Compellability
• Judicial Neutrality and Bias
• Role of the Trial Judge

Judicial Neutrality and Bias

This page was last substantively updated or reviewed January 2021. (Rev. # 79573)

• < Procedure and Practice
• < Trials

• < Procedure and Practice
• < Pre-Trial and Trial Matters

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."

Appearance of Impartiality

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

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."

Judge's Degree of Participation

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

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

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

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."

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."

Disqualification of Judges

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

The assessment of bias is highly fact specific.

Reasonable Apprehension of Bias

• Reasonable Apprehension of Bias

See Also

• Appeals
• Role of the Trial Judge
• Judicial Immunity

Reasonable Apprehension of Bias

This page was last substantively updated or reviewed May 2021. (Rev. # 79573)

• < Procedure and Practice
• < Trials

• < Procedure and Practice
• < Pre-Trial and Trial Matters

General Principles

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

Presumption of Integrity

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

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".

Burden and Standard of Proof

The burden of establishing bias is upon the claimant. The burden is a "heavy" to dislodge the presumption of impartiality.

Test for Bias

The test for bias is on an objective standard. 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.

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. 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."

When the judge's conduct is at play, it must not be considered in isolation. It must be considered in context, including in light of the whole proceeding.

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.

"Cogent evidence" is required to overcome the presumption.

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.

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.

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.

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

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.

Procedure

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

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.

See Also

• Role of Trial Judge
• Judicial Intervention During Trial

Functus Officio

• < Procedure and Practice
• < Trials

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.

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]."

This common law rule states that the final judgement of a court cannot be reopened. 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.

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

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

History

The doctrine originates from 19th century english case law.

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"

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

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

An intermittent jail sentence cannot be varied by the sentencing court to a non-intermittent. 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.

A judge is not functus 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.

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.

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

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.

Appeal Court

An appellate court is not functus until the formal judgement has been drawn up and entered. The essential elements for an appellate court to be functus is:

1. the appeal has been argued and decided on the merits;
2. the court has issued reasons for its decision; and
3. a formal order has been entered or issued recording the disposition of the appeal.

To prevent the appeal from being re-opened, the respondent must establish that there is "no reasonable prospect of success".

The court should consider as factors to re-open an appeal that has been decided:

1. the principle of finality;
2. the interests of justice including finality and the risk of a miscarriage of justice;
3. whether the applicant has established a clear and compelling case to justify a re-opening;
4. whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and
5. whether the error alleged concerns a significant aspect of the case.

Exception

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

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.

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

Administrative Amendments

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

See Also

• Role of the Trial Judge
• Reasonable Apprehension of Bias)

Role of the Victim and Third Parties

This page was last substantively updated or reviewed November 2023. (Rev. # 79573)

• < Procedure and Practice
• < Role of Parties in Proceedings

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

2 In this Act,
...
"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; 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; 2022, c. 17, s. 1.
[annotation(s) added]

– CCC