Full Text:Volume 4C

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See also: Full Text:Volume 4

Volume 4B - Pre-Trial Proceedings

The Parties in a Proceeding

Role of the Crown

General Principles

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

Duty of Knowledge

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

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

Prosecuting Crown as Judicial Office

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

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

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."[5]

Discretion

The prosecutor "always has a discretion in prosecuting criminals to the full extent of the law".[6]

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.[7] However, a subpoena to attend a commission inquiry to explain their actions will be enforceable.[8]

Reviewability of Advice

The Crown's advice on the form charges cannot be reviewable except as a possible abuse of process.[9]

Duties in Handling of Multiple Charges

The powers of the prosecutors include the "power to charge multiple offences".[10]

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".[11]

History

Prior to 1879, most prosecutions in England were brought to the court privately.[12]The powers of the Attorney General concerns mainly initiaiting, managing and terminating prosecutions.[13]

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.[14]

  1. R v Catagas, 1977 CanLII 1636 (MB CA), 38 CCC (2d) 296, per Freedman CJ, at para 2
  2. R v Adams, 2011 NLCA 3 (CanLII), 267 CCC (3d) 155, per Welsh JA
  3. R v Bain, 1992 CanLII 111 (SCC), [1992] 1 SCR 91, per Stevenson J
  4. Berger v US 295 US 78 (1935)
    Bain, supra ("[A prosecutor's duty is] to see to it that every material point is made which supports the prosecution case or destroys the case put forward for the defence. But as prosecuting Counsel he should not regard his task as one of winning the case. He is an officer of justice. He must present the case against the prisoner relentlessly, but with scrupulous fairness.")
    • NL [1]: Rule 5.1-3
    • NS [2]: Rule 5.1
    • NB [3]: Rule 5.1-3
    • PEI [4]: Rule 5.1-3
    • ON [5]: Rule 5.1-3
    • MB [6]: Rule 5.1-3
    • SK [7]: 5.1-3
    • AB [8]: Rule 5.1
    • BC [9]: Rule 5.1-3
  5. R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J, at para 64
  6. Picha v Dolan, 2009 BCCA 336 (CanLII), 308 DLR (4th) 614, per curiam
  7. Attorney General v Davies, 2009 BCCA 337 (CanLII), 308 DLR (4th) 577, per curiam
  8. R v Ghavami, 2010 BCCA 126 (CanLII), 253 CCC (3d) 74, per Donald and Huddart JJ
  9. Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170, per Lamer J, at para 40
  10. R v Simon, 1979 CanLII 2997 (ON CA), 45 CCC (2d) 510 (ONCA), per Martin JA, at p. 514
  11. Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372, at para 25
  12. Krieger, ibid., at para 25
  13. Krieger, supra, at para 24
    Regina v Pelletier, 1974 CanLII 596 (ON CA), 18 CCC (2d) 516 citing Wilkes
    Wilkes v The King (1768), Wilm. 322, 97 E.R. 123 (UK) per Wilmot LCJ

Definition of Crown, Prosecutor and Attorney General

Purpose of Prosecution

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

The purpose of a prosecution can be seen as an investigation, without feeling or animus, with a single view to determine the truth.[2]

  1. R v Desjardin, 2019 ABCA 215 (CanLII), per curiam, at para 11 R v Chamandy, 1934 CanLII 130 (ON CA), 61 CCC 224, per Riddell JA ("A criminal trial ... is an investigation that should be conducted without animus on the part of the prosecution, with the single view of determining the truth.")
  2. Chamandy, ibid.("It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining 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".[1]

Crown Role Not to Secure Conviction

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

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

A criminal proceeding is not a contest between a prosecution that seeks to convict and an accused seeking acquittal.[5]

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".[6] 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."[7]

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.[8]

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."[9] 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".[10]

The use of rhetorical techniques to distort the evidence or to present misleading and highly prejudicial statements are inappropriate.[11]

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.[12]

The Crown should not express any personal opinion of guilt or innocence.[13]

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.[14]

Duty to Recommend Penalties

Historically, the Crown Counsel was not responsible for making recommendations on penalty in a sentencing hearing.[15]

  1. Ontario (Attorney General) v Clark, 2021 SCC 18 (CanLII), SCJ No 18, per Abella J (8:1)
  2. R v Boucher, 1954 CanLII 3, , [1955] SCR 16, per Locke J, at para 26
    R v Power, 1993 CanLII 3372 (NL CA), 81 CCC (3d) 1, per Marshall JA (2:1) ("This quasi-judicial role precludes the Crown having an interest in procuring a conviction as its duty is to fairly and impartially exhibit all facts to the court. The prosecutorial role excludes any notion of winning or losing")
    Chamandy, supra ("It is the duty of counsel for the Crown at a criminal trial to bring out before the jury all the facts favourable and unfavourable to the accused.") and ("a criminal prosecution is not a contest between the State and the accused in which the State seeks a victory")
    R v Vallières, 1969 CanLII 1000 (QC CA), 4 CCC 69, per Hyde JA
    R v Charest, 1990 CanLII 3425 (QC CA), 57 CCC (3d) 312, per Fish JA ("Crown counsel's duty is not to obtain a conviction, but "to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime"") R v Ahmed, 2019 SKCA 47 (CanLII), 10 WWR 99, per Barrington-Foote JA, at para 28 ("The Crown must bring forward evidence it considers credible that relates to the material facts")
  3. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J, at p. 333
    Ahmed, supra, at para 28 ("The function of the prosecutor is not to secure a conviction, but to “ensure justice is done” ")
  4. Ahmed, supra, at para 28("...the Crown has the discretion to decide which witnesses will be called, and a court will not interfere with that discretion unless the Crown is influenced by some oblique motive: ... . Further, the duty to bring forward evidence may be satisfied by disclosing the material to the defence...")
    Stinchcombe, supra, at p. 338 R v Harris, 2009 SKCA 96 (CanLII), 2 WWR 477, per Ricards JA, at para 42
    R v R v JV, 1994 CanLII 5620 (QC CA), 91 CCC (3d) 284, per Lebel JA, at para 8
  5. Chamandy, supra("It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.")
  6. R v Proctor, 1992 CanLII 2763 (MB CA), 69 CCC (3d) 436, per Twaddle JA, at para 59 and adopted in R v Trochym, 2007 SCC 6 (CanLII), [2007] 1 SCR 239, per Deschamps J
  7. Trochym, supra
  8. Chamandy, supra, at p. 227
  9. R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 21
  10. Charest, supra
    R v Pisani, 1970 CanLII 30 (SCC), 1 CCC (2d) 477, per Laskin J, at p. 478
  11. Trochym, supra at 79
  12. Miazga v Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339, per Charron J, at paras 65 to 67
  13. Charest, supra ("It is improper for Crown counsel to express his or her opinion as to the guilt or innocence of the accused(9) or as to the credibility of any witness.(10) Such expressions of opinion are objectionable not only because of their partisan nature, but also because they amount to testimony which likely would be inadmissible even if Crown counsel had been sworn as a witness.(11)")
    Boucher, supra, per Locke J, at p. 273
  14. Miazga, supra
  15. Butterwasser (1948), 32 Cr. App. Reports 81 (UK) at 87 (UK decision)
    R v Lapierre, [1976] NSJ 421, (NSCA)(*no CanLII links) , at para 32 ("Crown counsel should never request a specific term of imprisonment and in this province it rarely happens that such is done.")

Discretion of Crown

Relationship with Police

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

A critical part of the Crown's independence is its independence from police.[3]

The Crown can be liable for their part in giving advice to police during an investigation.[4]

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[5]

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.[6]

  1. Dix v Canada (AG), 2002 ABQB 580 (CanLII), 1 WWR 436, per Ritter J - fined $200,000 to crown
  2. See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  3. Ontario (Attorney General) v Clark, 2021 SCC 18 (CanLII), 456 DLR (4th) 361, per Abella J (8:1), at para 41
  4. see Dix v Canada (Attorney General), supra
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
  5. R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J at 61-70
  6. Ontario (Attorney General) v Clark, supra

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.[1]

  1. R v Hills, 2020 ABCA 263 (CanLII), 2 WWR 31, at para 42
    contra R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J ("The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high.")

Negotiations with Defence

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

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

  1. R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at para 59
  2. Babos, ibid., at paras 59 to 60
  3. R v Mattu , [2009] EWCA Crim 1483 (UK) [10]

Relationship with the Courts

Concessions

Any concessions of law that are made by the Crown are non-binding on the Court.[1]

Courts generally take a "dim view" to the Crown conceding constitutional cases given that they have "wide ramifications" to other parties. [2]

However, concessions of a factual nature or mixed fact and law involve tactical and strategic decisions are so are more likely to be honored.[3]

  1. R v Hills, 2020 ABCA 263 (CanLII), 2 WWR 31, per Antonio JA, at para 29 ("If Crown counsel’s position was a concession, it does not bind this Court as to its legal content or effect. “As has been noted on numerous occasions, concessions of law are not binding on courts")
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, at para 100(complete citation pending)
  2. Hill, ibid., at para 29
    M v H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, per Gothier J (dissent on separate issue), at para 210
  3. Hill, supra, at para 30

Crown Undertakings

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

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

Judge Shopping

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

  1. R v Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979, per Cory J
    R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J, at para 61
    R v Pilarinos, 2001 BCSC 1690 (CanLII), 52 WCB (2d) 161, per Bennett J, at para 126 ("The principle is clear – judge shopping by Crown counsel is not acceptable in our system of justice. I will return to this issue when I discuss the evidence in this case.")

Non-Appearance of Crown

803
[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


Note up: 803(4)

Relationship with Witnesses

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

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

Obligation to Call Witnesses
  1. (US) United States v Freeman, 691 F.3d 893 (7th Cir. 2012)
    Testimonial Evidence
  2. R v Joyce, 1998 CanLII 12216 (NB CA), 518 APR 1, per Drapeau JA, at p. 10

Preparation

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

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

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

  1. R v Spence, 2011 ONSC 2406 (CanLII), 85 CR (6th) 72, per Howden J
  2. Spence, ibid.

Abuse of Process

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

Intervening Crowns

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

When Attorney General does not stay proceedings

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

CCC


Note up: 579.01

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


Note up: 579.1(1) and (2)

  1. R v Mayers, 2011 BCCA 268 (CanLII), 307 BCAC 68, per Saunders JA, at para 5 - concerning intervening in sentence appeal
    R v Osolin, 1993 CanLII 87 (SCC), [1993] 2 SCR 313, per Sopinka J ("The discretion to allow interventions in criminal appeals has been exercised sparingly by this Court.")
  2. Mayers, supra

Conduct in Trial

Theory of the Case

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

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

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

Changing Theory Mid-trial

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

It may not necessarily be unfair for the Crown to change its theory of the case mid-trial to a lesser included offence.[6]

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.[7]

Generally, it must be shown that the Crown had broken some agreement, undertaking or quid pro quo.[8]

Crown Duty to Correct the Record

All lawyers, including Crown, have a duty not to mislead the court.[9] That includes a duty not to keep silent in the face of a falsehood.[10]

Crown has a duty to correct any evidence that they know or ought to know is false or misleading.[11]

  1. R v Heaton, 2014 SKCA 140 (CanLII), 318 CCC (3d) 115, per Jackson JA, at para 22
  2. Heaton, ibid., at para 22
  3. Heaton, ibid., at para 23
  4. R v White, 2009 BCSC 1838 (CanLII), per Griffin J
  5. R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA, at para 30
    R v Khawaja, 2010 ONCA 862 (CanLII), 103 OR (3d) 321, per curiam (3:0), aff’d 2012 SCC 69 (CanLII), [2012] 3 SCR 555, per McLachlin CJ (7:0)
  6. Pawluk, ibid., at para 30
  7. R v IC, 2010 ONSC 32 (CanLII), 249 CCC (3d) 510, per R Clark J
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 21 ({"This is the stuff of everyday trial tactics and hardly rises to the level of an “oblique motive”. Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. Where an element of prejudice results (as it did here), remedial action is appropriate.")
  8. R v Sparks and Ritch, 2020 NSSC 116 (CanLII), per Brothers J, at para 24 ("While there are times the Crown will not be permitted to change its position when the defence has reasonably relied on that position, this is not such a case. Absence some quid pro quo, agreement or an undertaking that the Crown intends to be bound by, the Crown is entitled to change its strategy as the evidence unfolds.")
  9. R v Phillion, 2010 ONSC 1604 (CanLII), 256 CCC (3d) 63, per Ratushny J, at para 57
  10. Mark M. Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Sons, 1957) at p. 27
    Phillion, supra, at para 57
  11. Phillion, supra, at para 58 ("In the criminal context, the Honourable Patrick Lesage has recently re-stated this basic principle, that Crown counsel has a duty to correct Crown evidence that he/she knows or ought to have known to be false or misleading. ")
    Hon. Patrick J. LeSage, Report of the Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell (2007) at p. 105

See Also

Related

Other Parties

Crown Policy Manuals

Prosecutorial Discretion

General Principles

See also: Role of the Crown

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutionality

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

  1. R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J, at para 44
  2. Anderson, ibid., at para 44
    Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372, per Iacobucci and Major JJ, at para 47
  3. R v Smythe, 1971 CanLII 30 (ON CA), 3 CCC (2d) 97, per Wells CJHC, at pp. 105 and 109 aff'd at 1971 CanLII 831 (SCC), per Fauteux CJ
  4. R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at paras 20, 63 to 64
  5. R v Catagas, 1977 CanLII 1636 (MB CA), [1978] 38 CCC (2d) 296, per Freedman CJM, at p. 301
  6. R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux‑Dubé J ("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers ...")
    see also R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux‑Dubé J
  7. R v Beare, 1988 CanLII 126 (SCC), [1988] 2 SCR 387, per La Forest J, at p. 410-411
  8. Power, supra, at pp. 626-627
  9. Power, supra (“A judge does not have the authority to tell prosecutors which crimes to prosecute...”.)
  10. e.g. R v K(M), 1992 CanLII 2765 (MB CA), 74 CCC (3d) 108, per O'Sullivan JA, at p. 110 - commenting on "zero-tolerance" policy on prosecution
  11. See R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), [2001] 3 SCR 575, per McLachlin CJ
    R v LL, 2015 ABCA 222 (CanLII), 300 CCC (3d) 345, per curiam, at para 10
  12. R v DN, 2004 NLCA 44 (CanLII), 188 CCC (3d) 89, per Wells JA, at para 17
    Krieger, supra
    Power, supra, at paras 41 to 43
    Beare, supra, at pp. 410-411
  13. DN, supra and Beare, supra, at para 51
  14. R v Ng, 2003 ABCA 1 (CanLII), 173 CCC (3d) 349, per Wittmann JA
  15. R v Gill, 2012 ONCA 607 (CanLII), 96 CR (6th) 172, per Doherty JA
  16. Anderson, supra, at paras 29 to 33
  17. Beare, supra, at para 56
    R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J, at p. 348
    R v Jones, 1986 CanLII 32 (SCC), [1986] 2 SCR 284, per La Forest J, at pp. 303-304

Calling Witnesses

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

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

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

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

  1. Lemay v The King, 1951 CanLII 27 (SCC), [1952] 1 SCR 232(complete citation pending), at p. 241
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 14
    R v Ellis, 2013 ONCA 9 (CanLII), 293 CCC (3d) 541, per Watt JA, at para 44 ("As a matter of general principle, Crown counsel is under no obligation to call a witness whom the Crown considers is unnecessary to the Crown’s case...")
  2. Jolivet, ibid., at para 29
  3. R v Rezaei, 2017 BCSC 611 (CanLII), per Jenkins J
    R v Cook, 1997 CanLII 392 (SCC), [1997] SCJ No 2, per L'Heureux-Dube J, at para 56
  4. R v LL, 2015 ABCA 222 (CanLII), 300 CCC (3d) 345, per curiam

Relationship with Police

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

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

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

  1. See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  2. see Dix v Canada (Attorney General), 2002 ABQB 580 (CanLII), 96 CRR (2d) 1, per Ritter J
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
  3. R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J at 61-70

Evaluating Whether to Prosecute (Charge Screening)

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

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

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

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

  • witnesses may not testify in accordance with their earlier statements;
  • weaknesses in the evidence may be revealed during cross-examination;
  • scientific evidence may be proved faulty; or
  • defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
Province's Policy
  1. Some provinces use difference standards such as "realistic prospects of conviction" (NS) or "substantial likelihood" (BC)
  2. Miazga v Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339, per Charron J, at para 64
  3. Miazga v Kvello Estate, ibid., at para 76
  4. R v Harrigan and Graham (1975), 33 CRNS 60(*no CanLII links) , per Henry J, stated, at p. 69 ("In exercising these powers, which vitally concern the right and liberty of the indi­vidual, he must take into account not only the interest of the individual but also what the public interest requires.")
    R v Kenny, 1991 CanLII 2738 (NL SC), 68 CCC (3d) 36, per Barry J
  5. Miazga v Kvello Estate, supra, at para 76

Prospects of Conviction

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

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

RPC does not require that conviction is "likely".

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

Public Interest

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

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

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

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

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

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

Crown Election

See also: Crown Election

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

  1. R v Nur, 2013 ONCA 677 (CanLII), 303 CCC (3d) 474, per Doherty JA, at para 190, appealed to SCC on other issues at 2015 SCC 15 (CanLII), per McLachlin CJ

See Also

Role of the Defence Counsel

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

General Principles

The defence counsel have several duties including:[1]

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

These duties overlap and may occasionally conflict.

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

Ethical Standards

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

Conduct

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

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

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

Retainer

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

Duty to Streamline

For the purposes of analysis under s. 11(b), the defence have an obligation to avoid promulgating a culture of delay.[10]

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.[11]

  1. e.g. Myers v Elman, (1940) AC 282 (HL) per Lord Wright ("A solicitor is an officer of the court and owes a duty to the court; he is a helper in the administration of justice. He owes a duty to his client, but if he is asked or required by his client to do something which is inconsistent with this duty to the court, it is for him to point out that he cannot do it and, if necessary, cease to act")
  2. R v Faulkner, 2013 ONSC 2373 (CanLII), 282 CRR (2d) 95, per Code J, at para 39
  3. Faulkner, ibid., at para 39
    R v Samra, 1998 CanLII 7174 (ON CA), 129 CCC (3d) 144, per Rosenberg JA, at paras 30 to 33
  4. R v GDB, 2000 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J, at para 5 ("the question of competence of counsel is usually a matter of professional ethics that is not a question for the appellate courts to consider")
  5. GDB, ibid., at para 29
    See also Ineffective Counsel
  6. R v Felderhof, 2003 CanLII 37346 (ON CA), 180 CCC (3d) 498, per Rosenberg JA
  7. R v Prebtani, 2008 ONCA 735 (CanLII), 240 CCC (3d) 237, per Rosenberg JA
  8. Prebtani, ibid.
  9. R v Harrison and Alonso, 1982 ABCA 152 (CanLII), 67 CCC (2d) 401, per curiam
    R v Salha, 2007 ABQB 159 (CanLII), 414 AR 395, per Lee J, at para 24
  10. Delay of Trial
  11. R v ZWC, 2021 ONCA 116 (CanLII), per Strathy CJ, at para 100

Duty to the Court

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

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

Jury Nullification

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

  1. R v Adams, 2011 NLCA 3 (CanLII), 267 CCC (3d) 155, per Welsh JA
  2. Redican v Nesbitt, 1923 CanLII 10 (SCC), [1924] SCR 135, per Idington J
  3. R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson J and Beetz J and Wilson J
    R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam

Duties of Honesty

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

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

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

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

  1. R c Legato, 2002 CanLII 41296 (QC CA), 172 CCC (3d) 415, per Biron JA, at para 88
    see also CBA Code of Professional Conduct
  2. R v Li, 1993 CanLII 1314 (BCCA), 21 WCB (2d) 497, per McEachern JA, at paras 48 to 74
  3. Li, ibid.
  4. R v Moore, 2002 SKCA 30 (CanLII), 163 CCC (3d) 343, per Tallis JA
  5. R v Murray, 2000 CanLII 22378 (ONSC), 144 CCC (3d) 289, per Gravely J

Duty of Loyalty and Confidentiality

See also: Conflicts of Interest

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

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

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

  1. R v MQ, 2012 ONCA 224 (CanLII), 289 OAC 316, per Goudge JA, at para 26
  2. see R v Widdifield, 1995 CanLII 3505 (ON CA), 25 OR (3d) 161, per Doherty JA, at pp. 171-172
  3. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J, at para 31
  4. Neil, supra

Decision Making

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

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

Defence counsel is obliged, "within ethical and legal limits", to protect the interests of their client.[3]

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:[4]

  • 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".[5]

It is often advisable that counsel have instructions provided to them in writing.[6]

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.[7] It is recommended that defence counsel should prefer getting the instructions in writing rather than simply withdrawing as counsel.[8]

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.[9]

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".[10]

In fact, "there are only a small number of fundamental decisions where the client 'calls the shots'".[11]

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.[12]

  1. R v GDB, 2000 SCC 22 (CanLII), [2000] 1 SCR 520, per Major J, at para 34
  2. E.g. See discussion in Stewart v CBC, 1997 CanLII 12318 (ONSC), 150 DLR (4th) 24, per MacDonald J
  3. R v Joanisse, 1995 CanLII 3507 (ON CA), 102 CCC (3d) 35, per Doherty JA (3:0) leave to appeal refused, [1996] SCCA No 347
  4. GDB, supra, at para 34
  5. GDB, supra, at para 34
  6. e.g. see R v Beuk, 2004 CanLII 53603 (ONSC), per Hill J, at para 40
  7. Joanisse, supra
  8. Joanisse, supra at footnote 15
  9. R v Samra, 1998 CanLII 7174 (ON CA), 129 CCC (3d) 144, per Rosenberg JA
    R v Faulkner, 2013 ONSC 2373 (CanLII), 282 CRR (2d) 95, per Code J, at paras 27, 39
  10. Samra, supra
  11. Faulkner, supra, at para 39
  12. R v Connors, 2011 NLCA 74 (CanLII), 981 APR 234, per Welsh JA, at para 11

Withdrawing as Counsel

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

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

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

Right to Discharge

The accused has an unfettered right to discharge their legal counsel at any time for any reason.[4]

Withdraw for Ethical Reasons

A judge must grant any request by counsel to withdraw for ethical reasons.[5] 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.[6]

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.[7]

Withdraw for Lack of Payment

A judge had discretion to refuse a request to Withdraw for non-payment of fees.[8]

Factor to consider on a withdraw for failure to pay fees include:[9]

  • 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".[10] The relevant harm will include that harm to other persons affected by prolonging the proceedings, including "complainants, witnesses, jurors and society at large".[11]

Whether the time booked can be used for other purposes is not a relevant factor.[12]

Returning Documents in Possession of Counsel

A discharged lawyer has a common law right to exercise a lien on documents in his possession.[13] If counsel withholds materials, they must inform the crown and the court that he is doing so.[14]

  1. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 47
  2. Cunningham, ibid., at para 48
  3. Cunningham, supra, at para 48
  4. Cunningham, supra, at para 9 ("An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere with this decision and cannot force counsel upon an unwilling accused")
  5. Cunningham, supra, at para 49
  6. Cunningham, supra, at para 48 ("ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.")
  7. e.g. see R v Denny, 2014 NSSC 334 (CanLII), per Rosinski J, at para 22
  8. Cunningham, supra, at paras 17, 50
  9. Cunningham, supra, at para 50
  10. Cunningham, supra, at para 50
  11. Cunningham, supra, at para 51
  12. Cunningham, supra, at para 51 ("...whether allotted court time can be otherwise usefully filled is not a relevant consideration in this balancing of interests.")
  13. R v Gladstone, 1971 CanLII 500 (ON CA), [1972] 2 OR 127, per McGillivary JA
    see also R v Dugan, 1994 CarswellAlta 492 (ABCA) (*no CanLII links)
  14. Dugan, ibid.

Sitting in Court and Order of Matters to be Called

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

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

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

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

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


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

See Also

Other Parties

Conflicts of Interest

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

General Principles

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

Purpose

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

Timing of Raising Issue

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

Requirements

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

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

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

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

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

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

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

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

Effect on Right to Choice of Counsel

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

Procedure

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

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

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

Judicial Intervention

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

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

Consequence of Forced Withdraw

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

Accused's Choice of Conflicted Counsel

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

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

Effect of Codes of Conduct

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

Duty to Previous Clients

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

Examples

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

  1. Paul M Perell, Conflicts of Interest in the Legal Profession (1995) at 5.
  2. R v Sandhu, 2011 BCSC 1137 (CanLII), 279 CCC (3d) 327, per Fitzpatrick J
  3. R v Widdifield, 1995 CanLII 3505 (ON CA), OR (3d) 161, per Doherty JA at 169
  4. R v Sherif, 2012 ABCA 35 (CanLII), 545 WAC 61, per Hunt JA
    R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA
  5. R v McCall, 2013 ONSC 4157 (CanLII), per Gunsolus J, at para 26
  6. McCall, supra, at para 27
  7. McCall, supra, at para 27
    Widdifield, supra
    See also MacDonald Estate, supra
  8. McCall, supra, at para 30
    R v Robillard, 1986 CanLII 4687 (ON CA), [1986] OJ No 261 (ONCA), per Lacourciere JA, at p. 5
    R v Brissett, 2005 CanLII 2716 (ON SC), [2005] OJ No 343, per Hill J, at para 39 - a lawyer should not use information obtained from a former client to cross-examine them on a future case.
  9. McCall, supra, at para 31
    MacDonald Estate, supra, at para 41
    See also R v Billy, 2009 CanLII 63957 (ON SC), [2009] OJ No 4737 (SCJ), per Pomerance J, at paras 24 to 25
  10. Sherif, supra, at para 13 (no conflict found)
  11. McCall, supra, at para 24
    R v McCallen, 1999 CanLII 3685 (ON CA), 131 CCC (3d) 518, per O'Connor JA, at paras 68 to 72
    Billy, supra, at para 19
  12. MacDonald Estate v Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, per Sopinka J
  13. Brissett, supra
  14. Macdonald Estate v Martin, supra, at p. 1245
  15. R v Speid, 1983 CanLII 1704 (ON CA), 8 CCC (3d) 18, per Dubin JA
  16. R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA, at p. 238
  17. WW, ibid.
  18. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 35
  19. R v Cocks, 2012 BCSC 1336 (CanLII), per Silverman J, at para 10
  20. Robillard, supra, at para 10
  21. Cunningham, supra, at para 38
  22. Canadian National Railway Co. v McKercher LLP, 2013 SCC 39 (CanLII), [2013] 2 SCR 649, per McLachlin CJ (9:0)
  23. R v Karmis, 2008 ABQB 525 (CanLII), 177 CRR (2d) 232, per MacLeod J

Waivers

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

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

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

  1. see e.g. R v Hill, 2014 ABQB 298 (CanLII), per Wilson J
  2. Hill, supra, at para 31
    R v Leask, (1996) 1 CR (5th) 132 (*no CanLII links)
    R v Werkman, 1997 CanLII 14735 (AB QB), 6 CR (5th) 221, per Ritter J
  3. see Hill, supra, at para 31

Representing Co-Accused

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

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

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

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

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.[6]

Counsel have an obligation to advise them to emphasize evidence that points to co-accused and exonerates them.[7]

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".[8] This test applies equally to circumstances where the two accused are involved in different matters.[9]

Consequence of Being in Conflict

Where counsel is in conflict, their representation becomes tainted by a divided loyalty.[10]

  1. R v WW, 1995 CanLII 3505 (ON CA), 100 CCC (3d) 225, per Doherty JA
  2. WW, ibid., at p. 13
    R v Silvini, 1991 CanLII 2703 (ON CA), 68 CCC (3d) 251, per Lacourciere JA
  3. Silvini, ibid.
  4. Silvini, ibid.
  5. R v Quiriconi, 2011 BCSC 1737 (CanLII), per Rogers J
  6. R v Baharloo, 2017 ONCA 362 (CanLII), 348 CCC (3d) 64, per Brown JA, at para 51
  7. R v Thanigasalam, [2007] OJ No 5374 (Ont. C.J.) (*no CanLII links) , at para 16
  8. Baharloo, supra, at para 53
  9. Baharloo, supra, at para 53
  10. Baharloo, supra, at para 52

Duty of Loyalty

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

This duty also includes the duty to avoid conflicting interests.[3] Defence counsel owe a duty to the client to avoid conflicts of interest.[4] This rule protects against:[5]

  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.[6]

Counsel has a duty to "not place herself in a situation that jeopardizes her effective on-going representation of [a] client".[7] There is "no room for doubt" in clients mind as to where the lawyer's loyalty lies.[8]

Once a lawyer is retained, the client has a right to believe that silence from counsel is affirmation that there are no conflicts.[9]

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:[10]

  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.[11]

This first stage is considered the "bright line" rule.[12]

  1. R v Cocks, 2012 BCSC 1336 (CanLII), per Silverman J, at para 10
  2. Cocks, ibid., at para 10
  3. R v Baharloo, 2017 ONCA 362 (CanLII), 348 CCC (3d) 64, per Brown JA, at para 31
  4. R v Faudar, 2021 ONCA 226 (CanLII), per Tulloch JA, at para 55
  5. Faudar, ibid., at para 56
    Baharloo, ibid., at para 31 (conflict of interest can create prejudice for the client where counsel "'soft peddles' his representation of a client in order to serve his own interests, those of another client, or those of a third party".)
    Canadian National Railway Co v McKercher LLP, 2013 SCC 39 (CanLII), [2013] SCR 649, per McLachlin CJ, at para 23
  6. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J, at para 24( “Loyalty includes putting the client’s business ahead of the lawyer’s business”)
  7. Canadian National Railway, supra, at para 23
  8. R v McCallen, 1999 CanLII 3685 (ON CA), 43 OR (3d) 56, per O'Connor JA, at p. 67 (“[t]here should be no room for doubt about counsel’s loyalty and dedication to the client’s case”)
    Baharloo, supra, at para 32
  9. Baharloo, supra, at para 32
    Strother v 3464920 Canada Inc, 2007 SCC 24 (CanLII), [2007] SCR 177, per Binnie J, at para 55
  10. Neil, supra Baharloo, supra, at para 34
  11. Baharloo, supra, at para 34
  12. Neil, supra, at para 29

Duty of Confidentiality

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

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

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

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

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

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

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

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

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

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

See Also

Obligation of Accused to be Present During Proceedings

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

General Principles

See also: Accused in Court and Remote Attendance of Accused

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.[1]

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

Witness in Canada

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

Witness outside Canada

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

Participants

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

Justice

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

CCC


Note up: 502.1(1), (2), (3), (4), and (5)

This provision came into force on December 18, 2019.

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

Accused'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) to (2) [various exceptions to requirement of accused being personally present] and section 650.01 [designation of counsel], an accused, other than an organization, shall be present in court during the whole of his or her trial.
[omitted (1.1), (1.2) 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.
[annotation(s) added]

CCC


Note up: 650(1), (1.1), (1.2), and (3)

Section 650 protects the "fundamental right" and "duty" to be present at trial.[1] Violation of the section will generally render the trial void irrespective of whether any prejudice was caused.[2] Counsel are not permitted to waive this requirement.[3]

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.[4]

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".[5]

It further respects the "right of the accused to fully participate in the proceedings".[6]

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.[7]

History

The statutory requirement was first found in the Criminal Code 1954.[8]

  1. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA (3:0), at para 9 ("...the right of the accused to be present at trial is a fundamental right protected by s. 650 of the Criminal Code, R.S.C. 1985, c. C-46.")
    R v D, 1982 CanLII 3324 (ON CA), 68 CCC (2d) 13, per Martin JA, at para 23 ("Mr. Doherty for the Crown in a most able argument did not dispute the general proposition that, subject to certain exceptions, an accused has not only an absolute right, but a duty, to be present at his trial.") R v Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694, at para 38
  2. R v Meunier, 1966 CanLII 50 (CSC), [1966] RCS 399
  3. R v Dumont, Bellegarde and Yuzicappi, 1984 CanLII 2432 (SK CA), 35 Sask R 112, per Hall JA, at para 5 ("The provisions of s. 577(1) cannot be waived by counsel. Under these circumstances the convictions must be set aside and a new trial ordered.")
  4. R v Mohebtash, 2007 BCCA 307 (CanLII), 220 CCC (3d) 244, per Hall JA, at para 14 ("In my opinion, the short absences of the appellant from the courtroom while legal argument occurred in his absence were of no particular moment in these trial proceedings. I cannot think that a fair‑minded and knowledgeable observer would have any belief that what occurred here had any capacity to work an injustice upon this appellant. I entirely agree with the comment of trial counsel for the appellant that there was no prejudice caused by the events to the appellant. What occurred here was within the terms of s. 686(1)(b)(iv), a procedural irregularity at trial that occasioned no prejudice to the appellant. In those circumstances, I would invoke the provisions of that section.")
  5. R v Chan, 2002 ABQB 866 (CanLII), 169 CCC (3d) 419, per Sulyma J, at para 35
  6. R v Reale, 1973 CanLII 55 (ON CA), [1973] 3 OR 905, 13 CCC (2d) 345 (Ont CA), per curiam
  7. R v Dedam, 2018 NBCA 52 (CanLII), 364 CCC (3d) 360, per Quigg JA
  8. R v Pazder, 2015 ABQB 493 (CanLII), 21 Alta LR (6th) 130, per Germain J, at para 243

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.[1]The key factor is whether the proceedings involved the accused's "vital interests."[2]

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".[3]

This can include any "normal part of the trial process" of "determining guilt".[4]

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":[5]

  • 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.[6]

Discussions between the judge and prospective jurors are part of trial and must be in presence of accused.[7]

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.[8]

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.[9]

The judge talking with the jury constables and reporter after trial when she heard that members of the jury were pressured in their verdict.[10]

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.[11]

  1. R v Sinclair, 2013 ONCA 64 (CanLII), 300 CCC (3d) 69, per Rouleau JA, at para 15 : cites many examples
  2. Sinclair, ibid., at para 15
    R v Vezina; R v Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2, per Lamer J
  3. Sinclair, supra, at para 17 (discussions occurred without accused present, however, discussions were summarized to accused in court and only finalized in accused presence.)
    R v Dunbar, 1982 CanLII 3324 (ON CA), 68 CCC (2d) 13, per Martin JA
  4. R v Hertrich, 1982 CanLII 3307 (ON CA), [1982] OJ No 496, 67 CCC (2d) 510 (CA), at para 50
  5. Hertrich, supra
  6. Vezina, supra
    R v Fenton, 1984 CanLII 633 (BCCA), 11 CCC (3d) 109, per Taggart JA
  7. Sinclair, supra
  8. Sinclair, supra
  9. R v James, 2009 ONCA 366 (CanLII), 244 CCC (3d) 330, per Rosenberg JA
  10. R v Phillips, 2008 ONCA 726 (CanLII), 242 OAC 63, per MacPherson JA
  11. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA (3:0), at para 9 ("... a voir dire is part of the trial. For the purposes of s. 650 of the Code, there is no distinction between receiving evidence on a voir dire and receiving evidence at the trial proper. Mr. Edwardsen had the same right to be present for the evidence led on the voir dire as he had for any part of the trial.")
    R v Ali, Boparai, Khan & Malonga-Massamba, 2020 BCSC 996 (CanLII), per Ehrcke J, at para 10 ("For the purposes of s. 650, a voir dire is considered part of the trial")

Exception

650

[omitted (1), (1.1) and (1.2)]

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.
[annotation(s) added]

CCC


Note up: 650(2)

Whether to excuse an accused from attending is a matter of judicial discretion and should be considered on its own merits.[1]

Considerations should include:[2]

  • 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.[3]

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".[4]

  1. R v Drabinsky, 2008 CanLII 40225 (ON SC), 235 CCC (3d) 350, per Benotto J, at para 12
  2. Drabinsky, ibid., at para 12
  3. R v Ali, Boparai, Khan & Malonga-Massamba, 2020 BCSC 996 (CanLII), per Ehrcke J, at para 13 ("Although the plain wording of s. 650(2)(b) would appear to create an open-ended discretion, historically, the section has been applied with restraint.")
    R v Pazder, 2015 ABQB 493 (CanLII), 21 Alta LR (6th) 130, per Germain J, at para 241 ("As is obvious from this survey, the first fundamental principle is that Criminal Code, s 650(2)(b) should only be used sparingly, and with caution. An accused’s absence should only occur where there is a valid and legitimate reason that does not offend public policy, and that is beneficial to the accused without prejudicing the fair trial rights of the accused and other trial participants.")
  4. Ali, supra

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.[1]

  1. Sinclair, supra

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.

[omitted (2.1) and (3)]
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317

CCC


Note up: 800(1) and (2)

Remote Attendance

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

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


Note up: 715.21


Defined terms: "Act" (s. 2) and "person" (s. 2)

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


Note up: 715.22


Defined terms: "Act" (s. 2) and "person" (s. 2)

Topics

Remote Attendance of Accused

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

General Principles

See also: Remote Attendance of Counsel or Other Participants

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

Video links

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

Video links

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

CCC


Note up: 650(1), (1.1) and (1.2)


Defined terms: "videoconference" (s. 2)

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 personally.

2019, c. 25, s. 292.

CCC


Note up: 715.21


Defined terms: "Act" (s. 2) and "person" (s. 2)

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

Accused
Appearance by audioconference or videoconference

715.‍23 (1) Except as otherwise provided in this Act, the court may order an accused to appear 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 accused;
(b) the costs that would be incurred if the accused were to appear personally;
(c) the suitability of the location from where the accused will appear;
(d) the accused’s right to a fair and public hearing; and
(e) the nature and seriousness of the offence.
Reasons

(2) If the court does not make an order under subsection (1) [appearance by audioconference or videoconference] it shall include in the record a statement of the reasons for not doing so.

Cessation

(3) The court may, at any time, cease the use of the technological means referred to in subsection (1) [appearance by audioconference or videoconference] and take any measure that the court considers appropriate in the circumstances to have the accused appear at the proceeding.

CCC


Note up: 715.23(1), (2) and (3)


Defined terms: "Act" (s. 2) and "audioconference" (s. 2)

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


Note up: 715.24


Defined terms: "Act" (s. 2) and "videoconference" (s. 2)

Audioconference and videoconference

Section 2 defines "audioconference" and videoconference".[1]

Summary Conviction Offences

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

800
[omitted (1) and (2)]

Video links

(2.1) If the summary conviction court so orders and the defendant agrees, the defendant who is confined in prison may appear by closed-circuit television or videoconference, as long as the defendant is given the opportunity to communicate privately with counsel if they are represented by counsel.
[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.

CCC


Note up: 800(2.1)


Defined terms: "summary conviction court" (s. 785) and "videoconference" (s. 2)

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

[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.

CCC


Note up: 537(1)


Defined terms: "justice" (s. 2)

See also

Remote Attendance of Counsel or Certain Other Participants

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

General Principles

See also: Remote Attendance

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:

Participants
Definition of participant

715.‍25 (1) In this section, "participant" means any person, other than an accused, 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 order 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 personally;
(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.
Reasons

(3) If the court does not make an order under subsection (2) [participation by audioconference or videoconference] it shall include in the record a statement of the reasons for not doing so.

Cessation

(4) The court may, at any time, cease the use of the technological means referred to in subsection (2) [participation by audioconference or videoconference] and take any measure that the court considers appropriate in the circumstances to have the participant participate in the proceeding.

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.
[annotation(s) added]

CCC


Note up: 715.25(1), (2), (3), (4), and (5)


Defined terms: "Act" (s. 2), "audioconference" (s. 2), "person" (s. 2), "justice" (s. 2), and "videoconference" (s. 2)

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


Note up: 650.02


Defined terms: "audioconference" (s. 2) and "videoconference" (s. 2)

See Also

Remote Attendance of Witnesses

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

General Principles

See also: Remote Attendance

The truth seeking function of a trial generally requires the presentation of evidence in court.[1] 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".[2]

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".[3]

  1. R v Bradshaw, 2017 SCC 35 (CanLII), [2017] 1 SCR 865, per Karakatsanis J, at para 19 ("The truth-seeking process of a trial is predicated on the presentation of evidence in court. ")
  2. Bradshaw, ibid., at para 19
  3. R v Jeffries, 2021 ONCJ 98 (CanLII), per McKay J, at para 12

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 personally;
(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.

CCC


Note up: 714.1

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.[1]

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."[2] 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" [3]

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."[4]

Where credibility is not at issue, the consideration is a "balance of convenience".[5]

It has been said that only in the "rarest of cases" that a complainant should testify by video-link.[6]

  1. R v Galandie, 2008 BCPC 6 (CanLII), [2008] BCJ No 79 (P.C.), per Blake J
  2. R v Chapple, 2005 BCSC 383 (CanLII), 15 MVR (5th) 141, per Parrett J
  3. Chapple, ibid.
  4. R v Allen, 2007 ONCJ 209 (CanLII), [2007] OJ No 1353 (ONCJ), per Duncan J
  5. R v SDL, 2017 NSCA 58 (CanLII), 352 CCC (3d) 159, per MacDonald JA (3:0), at para 32
  6. R v Dessouza, 2012 ONSC 145 (CanLII), per Ricchetti J, at para 26
    SDL, supra, at para 25

Factors

Factors to consider include:[1]

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.[2]


Nature of the Evidence

A case where credibility is central to the dispute will weigh on the side against the use of video testimony.[3] Courts should be "very reluctant" when an issue of the case is one of credibility.[4]

Some suggestion that video only be considered in "exceptional circumstances" that "personally impact" the witness.[5] And where the witness is a complainant it must be "compelling" reasons.[6]

Cost-Savings

However, "cost saving to the state,...,in and of itself does not justify" the use of video conferencing.[7]

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.[8]

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."[9]

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.[10] This is especially so when credibility is at issue with the witness, in which case "compelling evidence" is required.[11]

See also:

  1. R v Young, 2000 SKQB 419 (CanLII), 150 CCC (3d) 317, per Wright J, at para 8
  2. e.g. R v Osmond, 2010 CanLII 6535 (NL PC), NJ No 54, per Gorman J, at para 29
  3. e.g. R v Petit, 2013 ONSC 2901 (CanLII), per Ellies J, at paras 7, 8
  4. R v Chapple, 2005 BCSC 383 (CanLII), 15 MVR (5th) 141, per Parrett J, at paras 50 to 55
    R v SDL, 2017 NSCA 58 (CanLII), 352 CCC (3d) 159, per MacDonald JA (3:0), at para 26
  5. SDL, supra, at para 32
  6. SDL, supra, at para 32
  7. R v Ross, 2007 BCPC 244 (CanLII), [2007] BCJ No 1753 (P.C.), per Giardini J
  8. R v Denham, 2010 ABPC 82 (CanLII), 500 AR 211, per Rosborough J, -- judge speculated that it "will soon become essential to the conduct of court business"
  9. R v Chehil, 2014 NSSC 421 (CanLII), 353 NSR (2d) 215, per Wood J, at para 6
  10. R v SDL, 2017 NSCA 58 (CanLII), 352 CCC (3d) 159, per MacDonald CJ, at para 27
  11. SDL, ibid., at para 27

Outside Canada

See also: Principles of Fundamental Justice

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


Note up: 714.2(1) and (2)

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"[1]

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.[2]

Up to 2017, all published decisions resulted in a granting of testimony by video link.[3]

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:[4]

  • 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.[5]

  1. R v D'Entremont, 2009 ABPC 374 (CanLII), 486 AR 222, per Fradsham J
  2. D'Entremont, supra, at para 26
  3. R v Al-Enzi, 2017 ONSC 304 (CanLII), per Warkentin J
    R v Christhurajah, 2016 BCSC 2399 (CanLII), per Ehrcke J
    R v Nguyen, 2015 SKQB 382 (CanLII), per McMurtry J
    R v Singh, 2015 ONSC 6823 (CanLII), per Coroza J
    R v Sorenson, 2014 ABQB 464 (CanLII), per Poelman J
    R v Schertzer, 2010 ONSC 6686 (CanLII), per Pardu J
    D'Entremont, supra
    R v Galandie, 2008 BCPC 6 (CanLII), per Blake J
    R v Turner, 2002 BCSC 1135 (CanLII), [2002] BCTC 1135, per Macaulay J
  4. R v Heynen, 2000 YTTC 502(*no CanLII links) , at para 323
  5. s. 714.7

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


Note up: 714.3

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


Note up: 46(1) and (2)

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


Note up: 47

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.

CCC


Note up: 48

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


Note up: 49

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


Note up: 50(1), (1.1), (1.2), and (2)

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


Note up: 51(1) and (2)

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


Note up: 714.4

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


Note up: 714.41

Oath or Affirmation Outside of Canada

See also: Oaths and Affirmations#Administering Oaths and Affirmations for International Audio-Video Link Evidence

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


Note up: 714.7

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


Note up: 714.8

Use of Virtual Presence for Witnesses at the Court of Appeal

See also: Remote Attendance in Court

See Also

Remote Attendance of Judges or Jurors

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

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) 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


Note up: 715.26(1), (2) and (3)

Remote Attendance at the Court of Appeal

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

General Principles

See also: Representation and Attendance on Appeal

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


Note up: 683(2.1) and (2.3)

Appearance by Witnesses

See also: Appellate Evidence

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


Note up: 683(2.2)

See Also

Role of Law Enforcement

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

General Principles

See also: Peace Officers
Duty to Investigate

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

Not Agents of Government

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

Tort Liability

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

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

Trickery

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

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

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

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

Undercover operations

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

Police Representing Crown

While it may have been available in the past, police are not allowed to appear at bail hearings for indictable offences.[12]

  1. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J, at para 63
  2. McCleave v City of Moncton, 1902 CanLII 73 (SCC), 32 SCR 106, per Strong CJ
    New South Wales v Perpetual Trustee Co , [1955] AC 457 (PC) (UK)
  3. Bainbridge v Postmaster General , [1906] 1 KB 178 (Eng CA) (UK)
  4. CAN: Crown Liability Act, s. 3
    ON: Police Services Act, s. 50(1)
    QC: Police Act
    BC: Police Act, s. 21
  5. R v Nixon, 1990 CanLII 10993 (BCCA), 57 CCC (3d) 97, per Legg JA leave refused 60 CCC (3d) vi
  6. R v Rothman, 1981 CanLII 23 (SCC), [1981] 1 SCR 640, per Lamer J ("It must... be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit, and should not through the rule be hampered in their work.")
  7. Rothman, ibid.
  8. R v Skinner, 1992 CanLII 4015 (MB QB), 17 CR (4th) 265, per Scollin J, at p. 14 ("Absent "dirty tricks", the courts should not set themselves up as the arbiters of good taste or of the preferred methods of investigation. It is unrealistic to demand chivalry from those who must investigate what are often heinous offences against blameless victims. ...the courts should not be so indulgent as to preserve the accused from himself and his own untrammelled tongue")
    R v Roberts, 1997 CanLII 3313 (BCCA), 34 WCB (2d) 232, per Hall JA, at para 14
    R v Bonisteel, 2008 BCCA 344 (CanLII), 236 CCC (3d) 170, per Levine J, at para 89
    R v Figliola, 2012 ONSC 4560 (CanLII), per Whitten J, at para 95
  9. R v Nixon, 1990 CanLII 10993 (BCCA), 57 CCC (3d) 97, per Legg JA
  10. R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  11. see Admissions from Mr Big Operations
  12. Hearing Office Bail Hearings (Re), 2017 ABQB 74 (CanLII), 344 CCC (3d) 357, per Wittmann J
    R v Reilly, 2019 ABCA 212 (CanLII), 376 CCC (3d) 497, per Slatter JA, at para 12 ("The Alberta government first sought a judicial declaration that police officers were authorized to represent the Crown at bail hearings. That application was dismissed, with the court declaring that police officers could not appear at bail hearings for indictable offences: ... . The government chose not to challenge that decision, but rather proceeded to change the bail system by replacing police officers with Crown prosecutors.")

Police Powers

See also: Ancillary Powers Doctrine

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

Common Law Powers

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

Statutory Powers

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

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

Authority by Police Type

See also: Peace Officers

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

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

  1. See Ancillary Powers Doctrine
  2. NS: Liquor Control Act, [11]
    ON: Liquor Licence Act
  3. ON: Mental Health Act
    NS: Involuntary Psychiatric Treatment Act
  4. ON: Trespass to Property Act
  5. Royal Canadian Mounted Police Act (RCMPA), R.S.C., 1985, c. R-10, s. 3
  6. s. 3 and 11.1 RCMPA
  7. R v Seguin, 2016 ONCJ 441 (CanLII), per Letourneau J, at para 50
    Security Offences Act, RSC 1985, c S-7 at s. 2 and 6

Note Taking

Duty to Make Contemporaneous Notes

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

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

Consequence of Not Making Notes

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

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

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

Special Cases For Notes

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

  1. Wood v Schaeffer, 2013 SCC 71 (CanLII), SCJ No 71, per Moldaver J, at para 67 ("...police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation")
  2. R v Lozanovski, 2005 ONCJ 112 (CanLII), 64 WCB (2d) 630, per Feldman J, at para 14 ("It is important to the proper functioning of the judicial fact-finding role that significant facts be recorded by police and not left to the whim of memory.")
  3. R v Tweedly, 2013 BCSC 910 (CanLII), per Greyell J, at para 160 ("it is important to recall it has been held innumerable times in our courts that police testimony, without the advantage of contemporaneous notes, is unreliable and often not admitted into evidence for that purpose.")
    R v Zack, [1999] OJ No 5747 (Ont. C.J.)(*no CanLII links) , at para 6 ("In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw")
  4. R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at para 70 - Officer intentionally avoided taking notes
  5. R v Bailey, 2005 ABCA 61 (CanLII), 63 WCB (2d) 614, per Hunt JA, at para 43 to 44
  6. R v Eagle, [1996] OJ No 2867 (Ont. C.J.)(*no CanLII links) referencing the "Martin Report" ("The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less comprehensive notes.")
    R v Satkunananthan, 2001 CanLII 24061 (ON CA), 152 CCC (3d) 321, per curiam, at para 78

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))[1]

Special Authorizations

See also: Acting in Authority

See Also

Other Parties

Authorizations to Commit Illegal Acts

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

General Principles

See also: Role of Law Enforcement

It is a constitutional requirement that everyone, including all public officers, are subject to the ordinary laws of the country.[1]

Unless permitted by statute, a peace officer is not permitted to break the law in order to execute his or her duties.[2]

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]

CCC


Note up: 25(1), (2), (3), (3.1), (3.2), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), and (14)

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]

CCC


Note up: 25.2

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]

CCC


Note up: 25.3(1) and (2)

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


Note up: 25.4(1) and (2)

A civilian can be authorized to commit a criminal act or omission when directed by a public officer or otherwise acting as an agent.[3]

  1. R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J, at para 1(It is a "constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land. ")
  2. R v Brennan, 1989 CanLII 7169 (ON CA), 52 CCC (3d) 366, per Catzman JA - police officer not permitted to ignore stop signs while on duty
  3. R v Lising and Ghavami, 2007 BCSC 369 (CanLII), per Curtis J, at para 78 - includes a sample authorization letter

Accused in Court

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

General Principles

Right to Self-Representation

Accused's Obligation to be Present in Court

Video-link Appearance

See also: Remote Attendance in Court

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.[1]

From Preliminary Inquiry or Trial

Accused absconding during trial

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

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

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

Adverse inference

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

Accused not entitled to re-opening

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

Counsel for accused may continue to act

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

CCC


Note up: 475(1), (2), (3), and (4)


Defined terms: "Act" (s. 2)

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

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

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

Absconding Accused
Accused absconding during inquiry

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

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

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

Adverse inference

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

Accused not entitled to re-opening

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

Counsel for accused may continue to act

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

Accused calling witnesses

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

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

CCC


Note up: 544(1), (2), (3), (4), and (5)

  1. s. 800(2)
  2. R v Taylor, 2010 BCCA 58 (CanLII), 252 CCC (3d) 197, per Levine JA
  3. R v Czuczman, 1986 CanLII 2714 (ON CA), 26 CCC (3d) 43, per Brooke JA
  4. R v Tzimopoulos, 1986 CanLII 152 (ON CA), 29 CCC (3d) 304, per curiam
  5. Taylor, supra

Deceased Accused

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

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

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

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

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

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

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

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

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

Factors

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

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


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."[1]

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

  1. R v R(ME), 1989 CanLII 7212 (NS CA), 49 CCC (3d) 475, per Macdonald JA
    R v JZS, 2008 BCCA 401 (CanLII), 238 CCC (3d) 522, per D Smith J, at para 34

Use of Restraints in Court

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

  1. R v McNeill, 1996 CanLII 812 (ON CA), 108 CCC (3d) 364, per Morden ACJ
  2. R v Wills, 2006 CanLII 31909 (ON SC), [2006] OJ No 3662 (SCJ), per Fuerst J, at para 45

Sitting Position of Accused

Accused and Offender Defined

See also: Definitions of Parties, Persons, Places and Organizations

Right to Representation

See also: Representation at Trial

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

  1. R v Boone, 2003 MBQB 292 (CanLII), 179 Man R (2d) 227, per Darichuk J, at para 15
    R v Hardy, 1990 CanLII 5615 (AB QB), 62 CCC (3d) 28, per Mcdonald J
  2. Boone, supra, at para 16
    R v H(BC), 1990 CanLII 10964 (MB CA), 58 CCC (3d) 16, per Twaddle JA, at 22
  3. Boone, supra, at #par15 para 15
    see also Hardy, supra

Organizations as Accused

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

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

See Also

Other Parties

Sitting Position of the Accused at Trial

General Principles

See also: Accused in Court

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

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

Visibility of Accused

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

Two Lines of Authority

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

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

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

Constitutionality

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

  1. R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per L'Heureux‑Dubé J, at para 53
    R v Lalande, 1999 CanLII 2388 (ON CA), , [1999] OJ No 3267, per Borins JA, at para 19("Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security")
    R v Rafferty, 2012 ONSC 1009 (CanLII), per Heeney J, at para 3
  2. R v Ahmad et al., 2010 ONSC 1777 (CanLII), per Dawson J, at para 4
    R v Gervais, 2001 CanLII 28428 (ON SC), 49 CR (5th) 177, per Campbell J
  3. Gervais, ibid., at para 8
  4. R v Sinclair, 2010 ONSC 7253 (CanLII), OJ No 5749, per O’Marra J
    Rafferty, supra, at para 13
  5. R v McCarthy, 2012 CanLII 10661 (NLSCTD), per Goodridge J [refused request to sit at counsel table]
  6. Gervais, supra
    Ahmad, supra, at para 4
    R v Vickerson, 2006 CanLII 2409 (ONSC), per DiTomaso J, at para 18
  7. see R v Grandinetti, 2003 ABCA 307 (CanLII), 178 CCC (3d) 449, per per McFadyen JA, at para 84
    R v Badhwar, 2009 CanLII 23890 (ON SC), per McIsaac J
  8. Ahmad, supra, at para 5
    R v Smith, 2007 CanLII 24094 (ONSC), [2007] OJ No 2579 (SCJ), per Trafford J
    R v Ramanathan, 2009 CanLII 86223 (ONSC), , [2009] OJ No 6233 (ONSC), per Corbett J
  9. Ahmad, supra, at para 7
    Gervais, supra, at para 16
  10. Gervais, supra, at para 8
    Vickerson, supra, at para 15 - no violation of presumption of innocence
    Sinclair, supra
    R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 13

Accused in Custody

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

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

  1. R v Minoose, 2010 ONSC 6129 (CanLII), [2010] OJ No 4830, per Kane J, at para 32
  2. R v Spagnoli and Shore, 2011 ONSC 4656 (CanLII), per Hambly J, at para 7
    Minoose, supra, at para 33
    Rafferty, supra, at para 11

Sitting with Counsel

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

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

Need to Consult with Counsel

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

Weapons

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

Burden

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

Factors

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

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

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

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

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

  1. see referenced in R v MT, 2009 CanLII 43426 (ONSC), 84 WCB (2d) 644, per Nordheimer J
  2. R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 4
  3. JA, ibid., at para 4
    R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per L'Heureux‑Dubé J, at para 34
    R v Faid, 1981 ABCA 139 (CanLII), 61 CCC (2d) 28, per Harradence JA, at p. 40
  4. R v Arsoniadis, 2007 CanLII 13505 (ONSC), per Sproat J
  5. e.g. R v Lehoux, 1997 CanLII 14559 (BC CA), per Donald JA - accused obsessed with family court result attacks lawyer with weapon
  6. R v Davis, 2011 ONSC 5567 (CanLII), per van Rensburg J, at para 11
  7. Minoose, supra, at para 32
    see also R v GC, 2013 ONSC 2904 (CanLII), OJ No 2279, per O'Marra J
  8. e.g. Rafferty, supra
  9. Arsoniadis, supra, at para 11
    R v McCarthy, 2012 CanLII 10661 (NLSCTD), per Goodridge J, at para 6
  10. e.g. R v Turner, 2000 CanLII 28390 (NLSCTD), , [2000] NJ No 379, per Dymond J

Court Appointed Counsel

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

General Principles

See also: Representation at Trial

State-funded Counsel ("Rowbotham" applications)

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

Burden

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

Requirements for State-funded Counsel

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

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

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

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

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

Conduct of Accused as a Factor

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

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

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

Reasons for Rejection by Legal Aid

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

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

Financial Means

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

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

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

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

Fair Trial

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

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

Limited Retainer

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

Stay of Proceedings

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

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

  1. R v Ewing, 1974 CanLII 1394 (BC CA), 18 CCC (2d) 356 (BCCA), per MacLean JA
    R v Rowbotham et al, 1988 CanLII 147 (ON CA), 41 CCC (3d) 1(CA){{TheCourtONCA}
    R v Rockwood, 1989 CanLII 197 (NS CA), NSR (2d) 305 (CA), per Chipman JA
  2. R v Dow, 2009 MBCA 101 (CanLII), 247 CCC (3d) 487, per Steel JA, at para 25
    R v Lichtenwald, 2017 SKQB 94 (CanLII), per Gabrielson J, at para 5
  3. See R v Baker, 2012 MBCA 76 (CanLII), 280 Man R (2d) 284, per Hamilton JA
    Lichtenwald, supra, at para 9
  4. R v Drury (L.W.) et al., 2000 MBCA 100 (CanLII), 47 WCB (2d) 512, per Huband JA, at para 23
    Dow, supra, at para 26
  5. R v Imona-Russel, 2019 ONCA 252 (CanLII), 145 OR (3d) 197, per Lauwers JA, at para 38
    R v Tang, 2015 ONCA 470 (CanLII), 122 WCB (2d) 411, per curiam, leave to appeal refused, 2016 CarswellOnt 5402 and 5403, at para 9 R v Baksh, 2013 ONCJ 57 (CanLII), 286 CRR (2d) 171, per McArthur J, at para 4
    See Rowbotham, supra
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279, per Gordon J, at paras 5 to 7
  6. Imona-Russel, supra, at para 39
    R v Rushlow, 2009 ONCA 461 (CanLII), 96 OR (3d) 302, per Rosenberg JA, at para 39 ("The purpose of the right to counsel in the context of a Rowbotham case is reflected in the nature of the test itself. Counsel is appointed because their assistance is essential for a fair trial. In my view, fair trial in this context embraces both the concept of the ability to make full answer and defence and the appearance of fairness.")
  7. Rushlow, supra, at paras 19 to 21
    Dow, supra, at para 28
  8. Dow, supra, at para 16
  9. Dow, supra, at para 21
  10. Dow, supra, at para 17
    R v Bitternose, 2009 SKCA 54 (CanLII), 244 CCC (3d) 218, per Wilkinson JA, at para 29
  11. R v Howell, 1995 CanLII 4282 (NS CA), NSR (2d) 1 (CA), per Chipman JA, aff'd at 1996 CanLII 145 (SCC), [1996] 3 SCR 604, per Sopkina J, at para 55 [T]he many safeguards built into the criminal justice system for an accused, particularly an unrepresented one, cannot be allowed to give rise to a right in an accused person to disrupt the orderly process of a trial"
  12. Dow, supra, at para 23
    R v Peterman, 2004 CanLII 39041 (ON CA), 185 CCC (3d) 352, per Rosenberg JA, at para 22 ("when a court makes a Rowbotham order, it is not conducting some kind of judicial review of decisions made by legal aid authorities. Rather, it is fulfilling its independent obligation to ensure that the accused receives a fair trial")
  13. R v Plange, 2017 ONSC 134 (CanLII), per O'Marra J, at para 8
    R v Montpellier, 2002 CanLII 34635 (ON SC), [2002] OJ No 4279 (ONSC), per Gordon J, at para 34
  14. R v Malik, 2003 BCSC 1439 (CanLII), 111 CRR (2d) 40, per Stromberg-Stein J, at para 23 R v Rushlow, 2009 ONCA 461 (CanLII), 66 CR (6th) 245, per Rosenberg JA, at para 20
  15. e.g. R v Darby, 2001 BCSC 1868 (CanLII), BCTC 1868, per Grist J
  16. R v Crichton, 2013 BCSC 416 (CanLII), per Bracken J, at para 41
  17. R v Moodie, 2016 ONSC 3469 (CanLII), per Nordheimer J - Stay granted on drug trafficking trial with complex issues including severance, co-conspirator's exception, possible challenge for cause.
    R v Rushlow, 2009 ONCA 461 (CanLII), 245 CCC (3d) 505, per Rosenberg JA, at para 24
  18. Moodie, supra, at para 8
    Rushlow, supra
  19. Dow, supra, at paras 32 to 37
  20. R v Rowbotham, 1988 CanLII 147 (ON CA), 41 CCC (3d) 1, per curiam
  21. e.g. R v Dobson, 2016 NBCA 18 (CanLII), 129 WCB (2d) 420, per curiam

Cross-Examination

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

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

Appeals

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

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

Counsel fees and disbursements

(2) Where counsel is assigned pursuant to subsection (1) [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


Note up: 684(1), (2) and (3)


Defined terms: "court" and "judge"

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

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

The factors to consider have been stated as:[4]

  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.[5] 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.[6]

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.[7]

Consideration should include the appellant's ability to read and write, understand principles, relate principles to the facts, and articulate themselves.[8]

  1. R v Forrest, 2019 NSCA 47 (CanLII), per Beveridge JA, at para 3
  2. R v Robinson, 1989 ABCA 267 (CanLII), 51 CCC (3d) 452, per McClung JA
    R v Clark, 2006 BCCA 312 (CanLII), 227 BCAC 237, per Donald J
  3. R v Ewanchuk, 2008 ABCA 78 (CanLII), 429 AR 254, per Berger JA
    R v Ermine, 2010 SKCA 73 (CanLII), 7 WWR 605, per Jackson JA
    R v BLB, 2004 MBCA 100 (CanLII), 190 Man R (2d) 6, per Freedman JA
    R v Murray, 2009 NBCA 83 (CanLII), 910 APR 178, per curiam
    R v Bernardo, 1997 CanLII 2240 (ON CA), 121 CCC (3d) 123, per Doherty JA
    R v Abbey, 2013 ONCA 206 (CanLII), 115 OR (3d) 13, per Watt JA, at para 32
  4. R v Kelsie, 2016 NSCA 72 (CanLII), per Farrar JA
  5. Forrest, supra, at para 5
  6. Forrest, supra, at para 5
  7. Bernardo, supra, at para 24 ("This inquiry looks to the complexities of the arguments to be advanced and the appellant’s ability to make an oral argument in support of the grounds of appeal. The complexity of the argument is a product of the grounds of appeal, the length and content of the record on appeal, the legal principles" Forrest, supra, at para 5
  8. Bernardo, supra, at para 24 (" An appellant’s ability to make arguments in support of his or her grounds of appeal turns on a number of factors, including the appellant’s ability to understand the written word, comprehend the applicable legal principles, relate those principles to the facts of the case, and articulate the end product of that process before the court.")

See Also

Amicus Curae

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

General Principles

See also: Representation at Trial

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".[1]

An amicus can play a variety of roles as determined by the Court. There is no fixed role that they must play.[2]

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.[3] However, an accused has no ability to discharge an amicus.[4]

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".[5] The amicus is not a lawyer to the accused, but rather is effectively a lawyer to the court.[6]

An Amicus cannot "control the litigation strategy".[7]

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.[8]

The role played by an Amicus, depending on the case, can range from relatively detached to fully engaged in the accused's behalf.[9]

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."[10]

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.[11]

The judge should be mindful of whether an amicus is necessary to ensure the trial proceeds reasonably.[12]

Terms and Conditions of Amicus

The court may also set the terms and conditions of the appointment related to counsel's compensation.[13]

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.[14]

Amicus for Step Six Garofoli hearings

There is no special or enhanced obligation to appoint an amicus on a "Step Six" Garofoli application.[15]However, it should be done in "particularly difficult cases".[16]

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.[17]

  1. R v Russel, 2011 ONCA 303 (CanLII), 270 CCC (3d) 256, per curiam
    R v Thompson, 2017 ONCA 204 (CanLII), per curiam, at paras 15 to 18
    Ontario v Criminal Lawyers' Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J, at para 44 ("While courts of inherent jurisdiction have no power to appoint the women and men who staff the courts and assist judges in discharging their work, there is ample authority for judges appointing amici curiae where this is necessary to permit a particular proceeding to be successfully and justly adjudicated.")
  2. Criminal Lawyers, ibid., per Fish J (dissent), at para 117
    R v Cairenius, 2008 CanLII 28219 (ON SC), 232 CCC (3d) 13, per Durno J, at paras 52 to 59
  3. R v Imona-Russel, 2019 ONCA 252 (CanLII), 145 OR (3d) 197, per Lauwens JA, at para 67
  4. Imona-Russel, ibid.
  5. Criminal Lawyers, supra, at para 118 ("Regardless of what responsibilities the amicus is given, however, his defining characteristic remains his duty to the court and to ensuring the proper administration of justice.")
  6. Criminal Lawyers, supra, at para 118 ("An amicus’s sole “client” is the court, and an amicus’s purpose is to provide the court with a perspective it feels it is lacking ― all that an amicus does is in the public interest for the benefit of the court in the correct disposal of the case")
  7. Imona-Russel, supra, at para 68
  8. R v Amos, 2012 ONCA 334 (CanLII), 292 OAC 298, per Watt JA
  9. Cairenius, supra, at paras 55 to 56
    Imona-Russel, supra, at para 66
  10. R v Samra, 1998 CanLII 7174 (ON CA), 129 CCC (3d) 144, per Rosenberg JA citing R v Grice, 1957 CanLII 375 (ON SC), 119 CCC 18, per Ferguson J
  11. Russel, supra, at para 69
    R v Rushlow, 2009 ONCA 461 (CanLII), 245 CCC (3d) 505, per Rosenberg JA, at para 21
  12. Russel, supra, at paras 73 to 75
  13. Russel, supra
  14. Russel, supra, at para 68
  15. Thompson, supra
  16. Thompson, supra, at para 17
    R v Shivrattan, 2017 ONCA 23 (CanLII), 346 CCC (3d) 299, per Doherty JA, at paras 65 to 66
  17. Samra, ibid. at 160 per Rosenberg JA

Statutory Forms of Amicus Curae

See also: Cross-Examinations#Cross-Examination_by_Self-Represented_Accused

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.[1] They are not however required to have to be tied to a script approved by the accused.[2] Any objections that the accused has with the line of questions of the amicus can be "mediated" by the trial judge.[3]

  1. R v Lundrigan, 2020 ABCA 281 (CanLII), at para 82
  2. R v Jerace, 2021 BCCA 94 (CanLII), per JA, at para 101
  3. Jerace, ibid., at para 102

Role of Trial Judge

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

General Principles

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

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

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

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.[4] For this reason, it is improper for the judge to usurp the role of counsel in an inquisitorial manner.[5]

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."[6] The judge is also expected to "ensure the proceedings are conducted fairly, properly and according to law, which include the rules governing procedure."[7]

Presumed to Know the Law

Trial judges are presumed to know the elementary principles of law.[8] It is not necessary that a judge cite the leading authorities, it is only necessary that the legal principles be applied properly.[9]

Inherent Jurisdiction

The court's inherent jurisdiction is limited by its role within the system of separate branches of government.[10]

Duty to Raise Issues

A trial judge has a duty to "conduct [a] trial judicially quite apart from the lapses of counsel".[11] This may include a duty to conduct a voir dire on issues such as voluntariness absent the request of counsel.[12]

Duty of Restraint

A judge has a duty of restraint during their court work as well as in their personal life.[13] It is a guarantee of judicial independence or impartiality.[14]

Judges are required to be "shielded from tumult and controversy that may taint the perception of impartiality".[15]

Duty of Technological Competency

It has been suggested that courts and counsel have a duty of "technological competency".[16]

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.[17] This authority has been used to amend charges to conform with the evidence.[18]

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.

  1. See s. 11(d) of the Charter which is the right "...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"
    See also R v Valente, 1985 CanLII 25 (SCC), [1985] 2 SCR 673, (1985), 23 CCC (3d) 193, per Le Dain J
    Judicial Immunity
  2. see R v Harris, 2009 SKCA 96 (CanLII), 331 Sask R 283, per Richards JA, at para 28
    R v Amell, 2013 SKCA 48 (CanLII), 414 Sask R 152, per Lane JA, at para 25
  3. R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 69 to 72
    R v Griffith, 2013 ONCA 510 (CanLII), 309 OAC 159, per Rosenberg JA, at para 25
  4. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per McLachlin J (in dissent), at para ?
  5. R v Corbett, 2009 ABQB 619 (CanLII), 485 AR 349, per Ross J, at para 46
  6. Despres v MacDonald Crane Service Ltd. et al, 2018 NBCA 13 (CanLII), per Richard JA, at para 67
  7. Despres, ibid., at para 67
  8. R v Burns, 1994 CanLII 127 (SCC), [1994] 1 SCR 656, per McLachlin J
  9. R v Al-Rawi, 2021 NSCA 86 per Bourgeois JA at para 92
  10. Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J, at paras 28, 30, 38
  11. R v Piamonte, 2017 ONSC 2666 (CanLII), per Johnston J, at para 9
    R v Sweezey, 1974 CanLII 1427 (ON CA), 20 CCC (2d) 400 (OCA), per Martin JA
  12. Piamonte, ibid., at para 9
    See also Voluntariness
  13. Ruffo v Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 SCR 267, per Gonthier J
  14. Ruffo, ibid.
  15. Ruffo, ibid.
  16. WORSOFF v MTCC 1168, 2021 ONSC 6493 (CanLII), per Myers J, at para 32
  17. R v Powell, 1965 CanLII 671 (BC CA), 4 CCC 349, per Bull JA (2:1)
    R v Spilchen, 2021 NSSC 131 (CanLII), per Coady J
  18. Spilchen, ibid. Powell, ibid.
    R v Clark, 1974 ALTASCAD 59 (CanLII), 19 CCC 445, per Clehent JA

Right of Parties to be Heard

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

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

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

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

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

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

  1. R v Gustavson, 2005 BCCA 32 (CanLII), 193 CCC (3d) 545, per Prowse JA at 64
    See also Moreau‑Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] 1 SCR 249, per Arbour J, at para 75
    Canadian Union of Public Employees, Local 301 v Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 SCR 793, per L’Heureux-Dubé J, at para 73 - refereed to as the rule that “no man be condemned unheard"
  2. Devon Canada Corp. v Alberta (Energy and Utilities Board), 2003 ABCA 167 (CanLII), AJ No 622, per McFadyen JA, at para 19
  3. Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, per McLachlin CJ, at para 53 ("a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case")
  4. R v Berry, 2014 ABQB 379 (CanLII), per Ross J, at para 7
    R v Graham, 2007 ABCA 153 (CanLII), 404 AR 300, per Ritter JA, at paras 11 to 12
    Fraser v Fraser, 1994 ABCA 275 (CanLII), (1994) 157 AR 98 (CA), per curiam, at para 10
  5. Kallaba v Bylykbashi, 2006 CanLII 3953 (ON CA), 207 OAC 60, per Cronk and Juriansz JA, at para 31
  6. R v Marton, 2016 ONSC 2269 (CanLII), per Cronk and Juriansz JJA, at para 25
    R v Buchholz, 1958 CanLII 435 (MB CA), 121 CCC 293, per Adamson CJ, at para 8
  7. R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J at 1449 citing R v Dersch, 1987 CanLII 155 (BC CA), 36 CCC (3d) 435, per Esson JA

Timing of Interrim Rulings

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

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

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

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

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

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

Rules of Court

See also: Case Management and Rules of Court

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

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

  1. See also Case Management

Hearing Evidence at Trial

Must Consider All Admissible Evidence

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

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

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

Using Personal Experience

No judge is expected to be a "tabula rasa".[6]

A judge should only be deciding cases on the evidence adduced in the courtroom.[7]

A judge cannot act based only on personal knowledge and familiarity of a matter without more.[8]

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. [9]

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.[10] 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.[11]

  1. R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286, per Sopinka J at 296 (SCR)
    R v DLW, 2013 BCSC 1327 (CanLII), BCJ No 1620, per Romilly J, at para 3
  2. Morin, supra, at p. 296 (SCR)
  3. Morin, supra, at p. 296
    R v Walle, 2012 SCC 41 (CanLII), [2012] 2 SCR 438, per Moldaver J, at para 46
  4. Morin, supra, at p. 296
    Walle, supra, at para 46
  5. R v Howe, 2005 CanLII 253 (ON CA), 192 CCC (3d) 480, per Doherty JA, at para 44
  6. R v JM, 2021 ONCA 150 (CanLII), 154 OR (3d) 401, per Brown JA, at para 48
  7. , supra, at para 51
  8. R v Potts, 1982 CanLII 1751 (ON CA), 66 CCC (2d) 219, per Thorton JA at p. 204
    JM, supra, at para 51
  9. R v SS, 2005 CanLII 791 (ON CA), per curiam, at para 3
    R v Novak, 1995 CanLII 2024 (BC CA), 27 WCB (2d) 295, per Prowse JA, at para 8
    See Reasonable Apprehension of Bias
  10. R v Dagenais, 2018 ONCA 63 (CanLII), per McCombs JA (ad hoc), at para 55 ("It is well-established that, subject to due process concerns, a conviction may be founded on a theory of liability that has not been advanced by the Crown, provided that theory is available on the evidence")
    R v Pickton, 2010 SCC 32 (CanLII), [2010] 2 SCR 198, per Charron J, at paras 19 to 21
    R v Khawaja, 2010 ONCA 862 (CanLII), 273 CCC (3d) 415, per curiam, at paras 143 to 145
    R v Ranger, 2003 CanLII 32900 (ON CA), 178 CCC (3d) 375, per Charron JA, at paras 34 to 35
    R v Groot (1998), 41 O.R. (3d) 280 (C.A.), at para. 25(complete citation pending)
    R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA
  11. R v RH, 2022 ONCA 69 (CanLII) at para 20(complete citation pending)

Control over Trial Process

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

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

Superior Court

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

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

Provincial Court

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

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

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

Reconsidering Judgements

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

Exclusion of Evidence

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

Prohibition Orders on Defence Conducting their Defence

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

Directing Crown Counsel

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

  1. R v Romanowicz, 1999 CanLII 1315 (ON CA), 138 CCC (3d) 225, per curiam, at para 56
  2. R v Auclair, 2013 QCCA 671 (CanLII), 302 CCC (3d) 365, per curiam, at para 55
  3. Auclair, ibid., at para 55
  4. R v Rose, 1998 CanLII 768 (SCC), [1998] 3 SCR 262, per Cory, Iacobucci and Bastarache JJ
  5. DP v Wagg, 2004 CanLII 39048 (ON CA), 71 OR (3d) 229, per Rosenberg JA
    see Disclosure
  6. R v Doyle, 1976 CanLII 11 (SCC), [1977] 1 SCR 597, per Ritchie J
  7. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 19
  8. Doyle, supra ("Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion that the powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication.")
  9. see R v Rhingo, 1997 CanLII 418 (ON CA), [1997] OJ No 1110, per Charron JA
    R v Robichaud, 2012 NBCA 87 (CanLII), [2012] NBJ No 175 (CA), per Bell JA
  10. R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J, at para 29
  11. R v Spackman, 2012 ONCA 905 (CanLII), 295 CCC (3d) 177, per Watt JA
  12. R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J, at para 18
    R v Schneider, 2004 NSCA 99 (CanLII), 188 CCC (3d) 137, per Cromwell JA
  13. R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 56 ("...nor do I think that a trial judge should ever order the Crown to produce a witness. If the Crown wished to adopt such a procedure in a given case, however, this would, of course, be within the legitimate exercise of its discretionary authority.")

Judicial Intervention

Limiting Evidence

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

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

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

  1. R v Malmo-Levin, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ
  2. R v Schneider, 2004 NSCA 99 (CanLII), 188 CCC (3d) 137, per curiam
  3. R v Morrisey, 1995 CanLII 3498 (ON CA), 22 OR (3d) 514, per Doherty JA
    R v Smith, 2011 ONCA 564 (CanLII), 274 CCC (3d) 34, per Epstein JA, at para 59
  4. R v Dubois, 1986 CanLII 4683 (ON CA), 27 CCC (3d) 325, per Morden JA
    R v Toten, 1993 CanLII 3427 (ON CA), 14 OR (3d) 225, per Doherty JA

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


Note up: 645(4) and (5)

Exclusion Public from Hearing

Fact Finding

See also: Analyzing Testimony#Findings of Fact

Self-Represented Accused

see Right to Self-Representation

Sitting Position of Accused

Independent Research of the Judge

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

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

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.[3]

  1. R v Bornyk, 2015 BCCA 28 (CanLII), 320 CCC (3d) 393, per Saunders JA (3:0) - judge did separate research on finger print evidence and performed own analysis
    R v BMS, 2016 NSCA 35 (CanLII), per curiam (3:0)
  2. BMS, ibid., at para 17
    R v SDP, 1995 CanLII 8923 (ON CA), 98 CCC (3d) 83, at paras 33, 36
    Cronk v Canadian General Insurance Co, 1995 CanLII 814 (ON CA), , 85 OAC 54, per Lacourciere JA, at paras 47, 49 to 51
    R v Désaulniers, 1994 CanLII 5909 (QC CA), 93 CCC (3d) 371, per Tourigny JA, at paras 21, 23-24, 26-27
  3. R v Hernandez-Lopez, 2020 BCCA 12 (CanLII), 384 CCC (3d) 119, per Groberman JA
    R v JM, 2021 ONCA 150 (CanLII), 154 OR (3d) 401, per Brown JA, at paras 75 to 76

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


Note up: 790(1) and (2)


Defined terms: "Act" (s. 2) and "justice" (s. 2)

Loss of Judge During Proceedings

Doctrine of Functus Officio

Communications with Counsel Out of Court

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

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

  1. R v Deleary, 2007 CanLII 71720 (ON SC), 246 CCC (3d) 382, per Templeton J, at para 22
  2. R v Jones, 1996 CanLII 8006 (ON SC), 107 CCC (3d) 517, per Then J
  3. Jones and Deleary, ibid.

Duty to Make a Record

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

Record of Proceedings
How recorded

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

Record of proceedings

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

CCC


Note up: 624(1) and (2)


Endorsements on the Information

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

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

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

Maintaining Order

Preserving order in court

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

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

CCC


Note up: 484


Defined terms: "provincial court judge" (s. 2) and "superior court of criminal jurisdiction" (s. 2)

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

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

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

Ordering Sheriff to Detain Accused

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

  1. R v Heer, 1982 CanLII 786 (BC SC), 68 CCC (2d) 333, per Andrews J, at para 17
    Re Hawkins, 53 WWR 406, 53 DLR (2d) 453, [1966] 3 CCC 43 (sub nom. R v Hume; Ex parte Hawkins, 1965 CanLII 655 (BC SC), 3 CCC 43, per Branca J
  2. R v Barker (Burke), 1980 ABCA 75 (CanLII), 53 CCC (2d) 322, per Morrow JA (3:0)
  3. Heer, supra
  4. Heer, supra, at para 17
    Samson; Bardon v Carver Prov. J., 1974 CanLII 1292 (NS SC), (1974), 14 NSR (2d) 592, 29 CRNS 129, (sub nom. Re Samson and R.) 18 CCC (2d) 552, 50 DLR (3d) 365, per Hart J
  5. R v Millar, 2019 BCCA 298 (CanLII), [2020] 1 CTC 182, per Fitch JA, at paras 68 to 70

Misc Powers

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

Execution of Orders

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

Effect of judicial acts

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

Clerk of the court

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

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

CCC


Note up: 3.1(1) and (2)

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

View

Superior Court Inherent Jurisdiction

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

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

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

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

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

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

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

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

Limitations

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

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

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

Examples of Application

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

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

  1. R v Caron, 2011 SCC 5 (CanLII), [2011] 1 SCR 78, per Binnie J (8:1), at para 21 (These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner".)
    Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J (5:4), at para 18
  2. Ontario v CLAO, supra, at para 22
  3. Caron, supra, at para 29
  4. Ontario v CLAO, supra, at para 20
    Parsons v Ontario, 2015 ONCA 158 (CanLII), 64 CPC (7th) 227, 381 DLR (4th) 667, per Lauwers JA
  5. CR v Children's Aid Society of Hamilton, 2004 CanLII 34407 (ONSC), 70 OR (3d) 618, per Czutrin J, at para 29
  6. Caron, supra, at para 39
  7. Caron, supra, at para 39
  8. Parsons, supra, at para 71
    Ontario v CLAO, supra, at para 23
  9. Parsons, supra, at paras 72 to 73
    Ontario v CLAO, supra, at para 24
  10. Caron, supra, at para 30
  11. R v Church of Scientology of Toronto, 1986 CarswellOnt 925 (S.C.)(*no CanLII links)
  12. R v Ireland, 2005 CanLII 45583 (ON SC), 203 CCC (3d) 443, per Del Frate J
  13. R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J, at para 28 - in context of reconsidering a publication ban under s. 486

Doctrine of Mootness

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

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

Civility and Professionalism

Tone of Reasons

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

Sleeping

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

  1. Canada v Olumide, 2017 FCA 42 (CanLII), [2018] 2 FCR 328, per Stratas JA, at para 39
  2. Cesan v The Queen, (2008) 83 ALJR 43 (Australia High Court)

Validity of Orders

Validity of Forms (Part XXVIII)

Forms

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

Seal not required

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

Official languages

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

CCC


Note up: 849(1), (2) and (3)

Judicial Decisions

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

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.[2]

  1. R v Bradley, 2020 ONCA 206 (CanLII), per curiam, at para 9 ("It is always appreciated when trial judges articulate the contested elements of the offence and give each dedicated attention, but it is not an error to fail to do so where it is apparent that the required conclusions were made. That is the case here.")
  2. R v AA, 2000 CanLII 22813 (ON SC), 150 CCC (3d) 564, per Hill J, at para 9 aff'd 170 CCC (3d) 449

Relationship with the Legislatures

A judge must act as a "constitutionally mandated referee".[1]

It is not courts that limit legislatures, rather it is the constitution that limits them by means of judicial interpretation.[2]

It is the role of the legislature to assume the "responsibility of law reform".[3]

  1. Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (CanLII), [2004] 3 SCR 381, per Binnie J, at para 105
  2. Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory J, at para 56 ("...it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures.")
  3. Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 SCR 750, per McLachlin J at 583-4 (DLR) ("Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.")

Judicial Neutrality and Bias

Sufficiency of Reasons for Judgement

Misc Authority of Youth Court Justice

Misc Other Authorities

Provincial Court Judges

Officials with powers of two justices

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

CCC


Note up: 483


Defined terms: "Act" (s. 2), "province" (s. 35 IA), "provincial court judge" (s. 2), and "two justices" (s. 35 IA)

Maintaining Records

Application of Parts XVI, XVIII, XX and XXIII

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

CCC


Note up: 572


Defined terms: "provincial court judge" (s. 2)

Under Part XX relating to jury trials:

Taking evidence

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

CCC


Note up: 646


Defined terms: "counsel" (s. 2)

See Also

Other Parties

Judicial Intervention During Trial

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

General Principles

See also: Role of Trial Judge and Reasonable Apprehension of Bias

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

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

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.[4] 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.[5]

Presumption of Propriety

There is a "strong presumption" that a judge has not unduly intervened in a trial.[6]

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.[7] Assessment must be from the perspective of a "reasonable observer" who was present throughout the whole trial.[8]

Mere excessive intervention, without more, is not enough.[9]

The absence of objections from counsel is a factor to consider.[10]

  1. R v Fagbola, 2019 ONSC 1119 (CanLII), per Schreck J, at para 10
    R v Hungwe, 2018 ONCA 456 (CanLII), 142 OR (3d) 22, per Nordheimer JA, at paras 39 to 46
    R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 61 to 72
    R v Valley, 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207, per Martin JA, at pp. 230-232
  2. Fagbola, supra, at para 10
    Hungwe, supra, at para 49
    Stucky, supra, at para 84
    Valley, supra, at p. 231
    R v Murray, 2017 ONCA 393 (CanLII), 138 OR (3d) 500, per Watt JA, at para 105
  3. R v Valley, 1986 CanLII 4609 (ON CA), 26 CCC (3d) 207, per Martin JA
  4. R v Groia v Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772, per Moldaver J, at para 3
    R v Gager, 2020 ONCA 274 (CanLII), per Roberts JA, at para 152
  5. Gager, ibid., at para 152
  6. R v RB, 2017 ONCA 75 (CanLII), per curiam, at para 4
    R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, at para 29
  7. RB, ibid., at para 4
  8. RB, ibid., at para 4
    Hamilton, supra, at paras 29 to 30
  9. RB, supra, at para 4
    R v Kitaitchik, 2002 CanLII 45000 (ON CA), 166 CCC (3d) 14
  10. RB, supra, at para 4
    R v Lahouri, 2013 ONSC 2085 (CanLII), 280 CRR (2d) 249, per KL CAmpbell J, at para 10

Duty to Intervene

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

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

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

  1. R v Felderhof, 2003 CanLII 37346 (ON CA), 68 OR (3d) 481, per Rosenberg JA, at para 40
    Chippewas of Mnjikaning First Nation v Ontario (Minister of Native Affairs), 2010 ONCA 47 (CanLII), 265 OAC 247, per O’Connor ACJ and Blair JA, at para 232
  2. Brouillard (Chatel) v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, per Lamer J, at p. 44 (SCR) ("...it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.")
  3. Borouillard, ibid.
  4. Felderhof, supra
  5. Felderhof, supra

Intervention During Examinations

Right to Questioning

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

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

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

Presumption of Non-Intervention

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

Intervention Alone Not Improper

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

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

Trial Fairness

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

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

Failure to Object

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

Permissible Conduct

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

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

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

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

The judge is entitled in:[19]

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

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

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.[22]

  1. R v Farmer, 1985 ABCA 244 (CanLII), 64 AR 340, per Belzil JA - new trial ordered due to intervention
    R v Valley, 1986 CanLII 110 (ON CA), 26 CCC (3d) 207, per Martin JA, at p. 230 leave refused [1986] 1 SCR xiii
    R c Scianna, 1989 CanLII 7233 (ON CA), 47 CCC (3d) 81, per Krever JA
    Brouillard (Chatel) v The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, per Lamer J, at p. 42
  2. R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at paras 68 to 73
    Valley, supra, at p. 232
  3. R v Fagbola, 2019 ONSC 1119 (CanLII), per Schreck J, at para 12
    R v Lahouri, 2013 ONSC 2085 (CanLII), 280 CRR (2d) 249, per K.L. Campbell J, at para 9
    Valley, supra, at p. 231
  4. Darlyn, supra
  5. R v Wong, 1985 ABCA 54 (CanLII), 60 AR 301, per Stevenson JA
    Viger
    R v Jahn, 1982 ABCA 97 (CanLII), 66 CCC (2d) 307, per Haddad JA
    R v Atkinson, 1976 CanLII 1389 (MB CA), (1976), 36 CRNS 255, per Freedman CJ
  6. R v Lahouri, 2013 ONSC 2085 (CanLII), 280 CRR (2d) 249, per Campbell J, at paras 4, 5
  7. Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47 (CanLII), 265 OAC 247, per O’Connor ACJ and Blair JA, at para 231
  8. R v RB, 2017 ONCA 75 (CanLII), per curiam, at para 4
  9. RB, ibid., at para 4
    R v Kitaitchik, 2002 CanLII 45000 (ON CA), 166 CCC (3d) 14, per Doherty JA
  10. Lahouri, supra, at para 8
  11. Valley, supra
    Lahouri, supra, at para 4
  12. R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA
  13. R v Dugas, 2012 NSCA 102 (CanLII), 322 NSR (2d) 72, per Oland JA, at para 37
  14. RB, supra, at para 4
    Lahouri, supra, at para 10
  15. R v Watson, 2004 CanLII 45443 (ON CA), 191 CCC (3d) 144, per curiam, at para 10
  16. R v Visscher, 2012 BCCA 290 (CanLII), 323 BCAC 285, per Smith J, at para 25
  17. see R v Normand (D.G.), 2002 MBCA 95 (CanLII), 166 Man R (2d) 179, per Twaddle JA, at para 20
  18. R v WHA, 2011 NSSC 166 (CanLII), 960 APR 155, per Rosinski J
  19. Lahouri, supra, at para 8
    R v Giovannini, 2018 NLCA 19 (CanLII), per Hoegg JA, at para 15
    Valley, supra
  20. Watson, supra
  21. Lahouri, supra, at para 8
  22. R v Switzer, 2014 ABCA 129 (CanLII), 572 AR 311, per curiam, at para 13

Questioning a Witness

Judges may pose any questions to the witness where it is in the interest of justice.[1]

The judge may ask questions to clarify evidence or have the witness repeat part of an unheard answer.[2]

Leading Questions

The judge should not cross examine the witness.[3] The judge should remain neutral.[4] However, this is not a strict rule and that the mere presence of some leading questions does not amount to the creation of partiality.[5]

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.[6]

  1. Lahouri, supra
    R v Darlyn, 1946 CanLII 248 (BCCA), 88 CCC 269, per O'Halloran JA
  2. R v Schmaltz, 2015 ABCA 4 (CanLII), 320 CCC (3d) 159, per Brown JA (2:1), at para 19
    R v Danial, 2016 ONCA 822 (CanLII), per curiam, at para 3
  3. Lahouri, supra, at para 8
  4. Lahouri, supra, at para 8
  5. Danial, supra, at para 5
  6. Danial, supra, at para 5
    R v Stucky, 2009 ONCA 151 (CanLII), 240 CCC (3d) 141, per Weiler and Gillese JJA, at para 64

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.[1]

Rules of Court

General Principles

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

Rules of Court
Power to make rules

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

Power to make rules

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

(a) every court of criminal jurisdiction for a province;
(b) every appeal court within the meaning of section 812 [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


Note up: 482(1), (2), (3), (4), and (5)

Manner of Interpretation

The rules created by a court should be subject to the "ordinary principles of statutory interpretation".[2]

  1. R v Kennedy, 2021 NSSC 211 (CanLII), per Arnold J, at para 59
  2. R v Gowenlock, 2019 MBCA 5 (CanLII), per Chartier CJ, at para 73
    Evans v Jensen, 2011 BCCA 279 (CanLII), 19 BCLR (5th) 350, per Prowse JA
    See also Statutory Interpretation

Rules of the Provinces and Territories

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


Youth Court

Youth justice court may make rules

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

Rules of court

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

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

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

YCJA


Note up: 17(1), (2) and (3)

Forms, Regulations and Rules of Court
Forms

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

If forms not prescribed

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

YCJA


Note up: 154(1) and (2)

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


Note up: 155

See Also

Procedural Powers of a Preliminary Inquiry Judge

General Principles

Powers of justice

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

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

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

Section 715 or 715.01

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

Inappropriate questioning

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

Change of venue

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

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

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

CCC


Note up: 537(1), (1.01), (1.02), (1.1), and (2)

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


Note up: 538

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

Disclosure

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

  1. R v Swystun, 1990 CanLII 7682 (SK CA), 84 Sask R 238, per Gerwing JA
    R v Stinert, 2015 ABPC 4 (CanLII), 604 AR 151, per Rosborough J, at para 41
  2. R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA
    R v Paulishyn, 2017 ABQB 61 (CanLII), 377 CRR (2d) 29, per Yamauchi J
  3. Paulishyn, ibid.

Focus Hearings

Order for hearing

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

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

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

CCC


Note up: 536.4(1) and (2)

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


Note up: 536.5

Publication Bans

See also: Public and Media Restrictions

There are several publication bans available for preliminary inquires:

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

Absence of Accused or Video-link Attendance

See also: Remote Attendance of Counsel or Other Participants and Remote Attendance by Accused

Statement of Issues and Witnesses Under Section 536.3

General Principles

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

Statement of issues and witnesses

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

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

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

[annotation(s) added]

CCC


Note up: 536.3

Mandatory Rule

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

Purpose and History

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

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

Appropriate Issues

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

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

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

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

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

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

Crown Compliance with the List

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

Defence Failure to List Issues or Witnesses

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

  1. LeBlanc and Steeves v R, 2009 NBCA 84 (CanLII), 250 CCC (3d) 29, per Richard JA
  2. R v Brufatto, 2011 ABPC 347 (CanLII), 528 AR 78, per Ogle J, at para 10
    R v TP, 1976 CanLII 1335 (ONSC), , [2006] NJ No 278 (P.C.), per Cory J
  3. R v Stinert, 2015 ABPC 4 (CanLII), 604 AR 151, per Rosborough J, at para 6
  4. Stinert, ibid., at paras 6 to 17
  5. Stinert, ibid., at para 24
    TP, supra, at paras 26 to 28 (The sections are "designed to expedite and to shorten the length of preliminary inquiries by requiring counsel to focus on issues which are being contested and the witnesses that are relevant to those issues") and ("Section 536.3 of the Criminal Code is designed to limit the scope of the preliminary inquiry").
  6. Stinert, supra, at para 26
    R v Gallant, 2009 NBCA 409 (CanLII), 250 CCC (3d) 29, per Richard JA
  7. Stinert, supra, at para 25
  8. Stinert, supra, at para 26
  9. TP, supra, at para 28
  10. R v Morgan, 2006 YKTC 79 (CanLII), 70 WCB (2d) 693, per Faulkner J, at paras 20 and 21
  11. See Stinert, supra, at para 29 - lists other examples as well TP, supra, at para 28 ("It assumes that counsel will not file such statements in a perfunctory manner and simply list every witness found in the disclosure provided by the Crown. Such an approach to section 536.3 by counsel would not be consistent with their responsibility as officers of the court to promote the appropriate functioning of the trial process.")
  12. see Stinert, supra, at para 37
  13. TP, supra, at para 28 ("It does not have the effect of requiring the Crown to call every witness listed by the accused in his or her notice.")
    Stinert, supra, at paras 24 to 25
    R v Ward, 1976 CanLII 1335 (ONSC), 31 CCC (2d) 466, 35 CRNS 117, per Cory J
  14. Ward, ibid.
  15. Stinert, supra, at paras 40 to 45
    R v Callender, 2007 ONCJ 86 (CanLII), per Duncan J, at paras 9 to 10

Rules by Province

See also: Rules of Court

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

Ontario

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

Focus hearing, preliminary inquiry

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

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

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

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

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

Discovery, preliminary inquiry

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

Official record

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

Exception, vulnerable witness

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

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

...

Rules

Alberta

Judicial Immunity

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

General Principles

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

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

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

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

  1. R v Beauregard, 1986 CanLII 24 (SCC), [1986] 2 SCR 56, per Dickson J (3:2)
    R v Parente, 2009 CanLII 18685 (ON SC), per Templeton J, at para 7
  2. Parente, ibid., at paras 6, 237tm12
    Ermina v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8969 (FC), 167 DLR (4th) 764, per Tremblay-Lamer J, at para 5 - 11 citing MacKeigan v Hickman, 1988 CanLII 7124 (NS SC), 43 CCC (3d) 287, per Glube CJ
    Beauregard, supra, at p. 69
  3. Parente, supra, at para 10
  4. e.g. R v Wolf, 2007 ONCA 327 (CanLII), per curiam (3:0), at para 10
  5. Parente, supra, at para 16

Giving Evidence and Compelling Attendance

A judge is not compellable to give evidence concerning their "process of adjudication".[1] However, a judge may be compellable concerning their administrative functions.[2]

  1. Mackeigan v Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796, per Lamer J
  2. R v Butler, 2014 NLTD 36(complete citation pending)

Judicial Independence

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

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

Sources of Judicial Independence

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

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

Two Aspects of Independence

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

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

Purpose

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

Salaries

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

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

  1. Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), [2001] 2 SCR 781, per McLachlin CJ, at para 24
  2. R v Beauregard, 1986 CanLII 24 (SCC), [1986] 2 SCR 56, per Dickson J (3:2)
  3. Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 SCR 3, per Lamer CJ
  4. Ontario v Criminal Lawyers' Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 SCR 3, per Karakatsanis J (5:4), at para 28
  5. Beauregard, ibid.
    MacKeigan v Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796, per McLachlin J (5:2)
  6. MacKeigan, ibid.
  7. R v Lippe, 1990 CanLII 18 (SCC), [1991] 2 SCR 114, per Gonthier J
  8. Lippe, ibid.
  9. Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 SCR 3, per Lamer CJ
    Provincial Court Judges' Assn. of New Brunswick v New Brunswick (Minister of Justice), 2005 SCC 44 (CanLII), [2005] 2 SCR 286, per curiam
    Provincial Court Judges’ Association of British Columbia v British Columbia (Attorney General), 2017 BCCA 63 (CanLII), 409 DLR (4th) 492, per Saunders JA (3:0)
  10. PEI Reference, supra

See Also

Judicial Neutrality and Bias

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

General Principles

Obligation of Neutrality

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

Appearance of Impartiality

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

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

Judge's Degree of Participation

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

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

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

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

Purpose of Neutrality

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

Disqualification of Judges

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

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

  1. R v Torbiak and Campbell, 1974 CanLII 1623 (ON CA), , 18 CCC (2d) 229, per Kelly JA, at pp. 230-231
  2. Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, per curiam, at para 66 ("the manifestation of a broader preoccupation about the image of justice [because] there is an overriding public interest that there should be confidence in the integrity of the administration of justice")
  3. R v Sussex Justices, Ex parte McCarthy , [1924] 1 K.B. 256 (UK), at p. 259
  4. R v Potter; R v Colpitts, 2020 NSCA 9 (CanLII), per curiam, at para 743
  5. R v Clarke, 2014 NSSC 431 (CanLII), per Coady J, at para 34
  6. R v Baccari, 2011 ABCA 205 (CanLII), 527 WAC 301, per curiam
  7. Clarke, supra, at para 20 citing Canadian Judicial Council, "Ethical Principles for Judges", at p. 33
  8. R v RDS, 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J
  9. Broda v Broda, 2001 ABCA 151 (CanLII), 286 AR 120, per curiam, at para 16
    R v Collins, 2011 FCA 171 (CanLII), 202 ACWS (3d) 820 per Mainville JA , at para 11 ("[t]he simple fact that judges render a judgment which is unfavourable to a party cannot in itself result in a conclusion of bias. Were it otherwise, no judgment could ever be issued. A reasonable apprehension of bias must be shown to exist either in the judgment itself, in the comportment of the judge or by some other means.")
    R v JNS, 2019 ABQB 557 (CanLII), per Mandziuk J
    R v Heisinger, 2007 NWTTC 11 (CanLII) per Schmaltz J, at para 6 ("The case law is clear: an accused having appeared previously before a judge will not require that the judge cannot preside on subsequent matters involving that accused. This applies whether or not an accused appeared as an accused, a party, or a witness, and whether or not credibility findings were made.")
  10. Alberta Health Services v Wang, 2018 ABCA 104 (CanLII), per Slatter JA, at para 9 ("... Making decisions is the essence of the judicial function, and a reasonable person, properly informed, would not conclude that a judge would have a bias towards any one party just because that party was unsuccessful on one particular application.")
  11. R v Bolt, 1995 ABCA 22 (CanLII), 26 WCB (2d) 18, per Russell JA, at para 2 ("… It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused. We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them…")
  12. R v Potter; R v Colpitts, 2020 NSCA 9 (CanLII), at para 742
    Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 SCR 282, per Abella J

Reasonable Apprehension of Bias

See Also

Reasonable Apprehension of Bias

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

General Principles

See also: Judicial Neutrality and Bias, Role of Trial Judge, and Reasonable Person Test

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

Presumption of Integrity

There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.[2] This presumption arises from the "presumption of judicial integrity".[3]

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".[4]

Burden and Standard of Proof

The burden of establishing bias is upon the claimant.[5] The burden is a "heavy" to dislodge the presumption of impartiality.[6]

Test for Bias

The test for bias is on an objective standard.[7] 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.[8]

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.[9] 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."[10]

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.[11]

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.[12]

"Cogent evidence" is required to overcome the presumption.[13]

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.[14]

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.[15]

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.[16]

A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.[17]

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.[18]

Procedure

An application for recusal of a judge must be made before the judge against whom bias is alleged.[19]

Appeals
See also: Appeals

A reasonable apprehension of bias is grounds for appeal under either s. 686(1)(a)(i) or (iii) for unreasonable verdict or miscarriage of justice. There is a presumption to judicial integrity. Thus, there needs to be substantial grounds and cogent evidence to support an apprehension.[20]

  1. R v Sussex Justice, Ex Parte McCarthy [1923] All ER Rep 233 (UK) ("Not only must justice be done, it must also be seen to be done")
  2. R v Pepe, 2013 ONSC 643 (CanLII), per MacDonnell J, at para 11
    Malton v Attia, 2016 ABCA 130 (CanLII), 398 DLR (4th) 350, per curiam
  3. Malton v Attia, ibid., at para 82 ("There is a presumption of judicial impartiality, which must be displaced by the appellants. The threshold is a high one, and properly so.")
  4. R v Arnout, 2015 ONCA 655 (CanLII), 328 CCC (3d) 15, per curiam, at para 19
  5. R v Slaney, 2013 NLCA 70 (CanLII), 344 Nfld & PEIR 144, per Barry JA, at para 7
    Miglin v Miglin, 2003 SCC 24 (CanLII), [2003] 1 SCR 303, per Bastarache and Arbour JJ, at para 26
    R v RDS, 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J, at para 114
  6. R v Esseghaier, 2021 ONCA 162 (CanLII), per curiam, at para 19
    R v Dowholis, 2016 ONCA 801, 341 CCC (3d) 443, per Benotto JA, at para 18
    R v Ibrahim, 2019 ONCA 631 (CanLII), 379 CCC (3d) 414, per curiam, at para 84
  7. Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 SCR 282, per Abella J, at para 22
  8. R v Valley, 1986 CanLII 110 (ON CA), 26 CCC (3d) 207, per Martin JA, at p. 232
  9. RDS, supra, at para 111
  10. Miglin v Miglin, supra, at para 26
    Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369, per De Grandpre J(dissent) at 394-395
  11. R v Gager, 2020 ONCA 274 (CanLII), OJ No 1886, at para 144 ("...a judge’s individual comments or interventions must not be seen in isolation. Rather, the impugned conduct must be considered in the context of the circumstances and in the light of the whole proceeding.")
  12. R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266, per curiam, at para 318
    Yukon Francophone School Board v Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 SCR 282, per Abella J, at para 37
  13. RDS, supra, at paras 113, 116, 117
    Committee for Justice and Liberty, supra, at p. 395 ("The grounds for [an] apprehension [of bias] must...be substantial")
  14. R v Hayes and Lowe, 2009 NLTD 114 (CanLII), 888 APR 212, per Dymond J
  15. Broda v Broda, 2001 ABCA 151 (CanLII), 286 AR 120, per curiam, at para 16
  16. R v Wilson, 2013 ONCA 222 (CanLII), per curiam, at paras 5 to 8
  17. R v Colpitts, 2014 NSSC 431 (CanLII), per Coady J, at para 18
    R v LL, 2013 ABQB 531 (CanLII), 570 AR 287, per Thomas J, at paras 29 and 31
  18. R v Lapointe, 2010 NBCA 63 (CanLII), 936 APR 129, per Robertson JA
  19. R v Doung, 1998 CanLII 14950 (ONSC), 129 CCC (3d) 430), per Smith ACJ
  20. R v Lupyrypa, 2011 ABCA 324 (CanLII), per curiam, at para 6
    R v S(RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J, at para 142
    Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, per curiam, at paras 57 to 60, 76 to 78

See Also

Functus Officio

General Principles

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

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

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

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

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

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

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

History

The doctrine originates from 19th century english case law.[7]

  1. R v E(J), 2013 ONCJ 247 (CanLII), per Nakatsuru J, at para 17
    Chandler v Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, per Sopinka J, at para 19
  2. R v Melvin, 2005 NSSC 368 (CanLII), 772 APR 38, per Murphy J, at para 13
    R v Fuller, [1969] 3 CCC 349(*no CanLII links)
  3. originates from Re St. Nazaire Co (1879), 12 Ch. D. 88 (UK)
  4. Chandler v Alberta association of architects, supra
    R v Adams, 1995 CanLII 56 (SCC), [1995] 4 SCR 707, per Sopinka J , at para 29
  5. Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, per Iacobucci and Arbour JJ, at para 79
  6. Adams, supra , at para 29
  7. Doucet-Boudreau, supra, at para 113
    In re St. Nazaire Co. (1879), 12 Ch. D. 88 (UK)

Timing of Conclusion

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

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

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

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

A judge is not 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.[6]

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

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

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

Appeal Court

An appellate court is not functus until the formal judgement has been drawn up and entered.[10] The essential elements for an appellate court to be functus is:[11]

  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".[12]

The court should consider as factors to re-open an appeal that has been decided:[13]

  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.
  1. Jacobs Catalytic Ltd. vs International Brotherhood of Electrical Workers, Local #353, 2009 ONCA 749 (CanLII), 312 DLR (4th) 250, per Epstein JA, at para 60
  2. R v MacDonald, 1991 CanLII 2424 (NSCA), NSR (2d) 374, per Clarke CJ
  3. R v Malicia, 2006 CanLII 31804 (ON CA), 211 CCC (3d) 449, per MacPherson JA, at para 16
  4. R v Germaine (1980) 39 NSR (2d) 177(*no CanLII links) , at para 5 - no jurisdiction to make intermittent to non-intermittent because not in text of 732
    R v Jules, [1988] BCJ 1605(*no CanLII links)
  5. R v EK, 2012 BCPC 132 (CanLII), per Gouge J
    cf. R v Crocker, 2012 CanLII 42379 (NL PC), per Gorman J
  6. e.g. R v Boyne, 2012 SKCA 124 (CanLII), 293 CCC (3d) 304, per Ottenbreit JA - judge heard disclosure arguments after conviction at trial
  7. R v DM, 2013 ONSC 141 (CanLII), [2013] OJ No 83 (SCJ), per Daley J
    R v E(J), 2013 ONCJ 247 (CanLII), per Nataksuru J
  8. R v Villeda, 2010 ABCA 410 (CanLII), 502 AR 78, per curiam
  9. e.g. R v Field, 2013 NSPC 92 (CanLII), per Scovil J
  10. jbvd0, 2020 ONCA 759 (CanLII), per Watt JA, at para 40
  11. Smithen-Davis, ibid., at para 37
  12. Smithen-Davis, supra, at para 68 ("To succeed in quashing the respondent's application to re-open the appeal, the Crown must be able to establish on the record, as it currently exists, that the application to re-open has no reasonable prospect of success.")
  13. Smithen-Davis, supra, at para 37

Exception

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

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

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

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

Administrative Amendments

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

  1. Chandler v Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848, per Sopinka J
  2. R v Burke, 2002 SCC 55 (CanLII), [2002] 2 SCR 857, per Major J
  3. R v Krouglov, 2017 ONCA 197 (CanLII), 346 CCC (3d) 148, per Epstein JA, at para 40
  4. Krouglov, ibid., at para 40
  5. R v Melvin, 2005 NSSC 368 (CanLII), 772 APR 38, per Murphy J, at para 14
    Ewing v Warden of Mission Institution, 1994 CanLII 2390 (BCCA), 92 CCC (3d) 484, per Ryan JA - regarding warrants of committal

See Also

Role of the Victim and Third Parties

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

Introduction

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

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

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

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

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

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

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

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

Complainants and Victims Defined

See also: Criminal Code and Related Definitions

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.
[annotation(s) added]

CCC


Note up: 2

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

Publication Bans

For the purpose of a publication ban under s. 486.4, the meaning of victim does not include the siblings of the deceased victim.[2]

Victim Impact Statements

For the purpose of filing a victim impact statement, the term "victim" has been found to include the support professional who received a confession from the accused.[3]

  1. R v Villota, 2002 CanLII 49650 (ON SC), 163 CCC (3d) 507, per Hill J, at para 79
  2. R v Clark, 2015 ABQB 729 (CanLII), AJ No 1247, per Strekaf J at para 20 ("Under this definition, the siblings of the deceased child do not qualify as victims for the purposes of section 486.4 and, therefore, no application was properly before the Court on their behalf, nor was there jurisdiction to grant an order on their behalf.")
  3. R v KJ, 2019 ONSC 2335 (CanLII)

Notices

Bail

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

515
[omitted (1), (2), (2.01), (2.02), (2.03), (2.1), (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3), (5), (6), (6.1), (7), (8), (9), (9.1), (10), (11), (12) and (13]

Copy to victim

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

CCC


Note up: 515(14)

NCR/Fitness

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

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

Notice to Victim of Plea Deal

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

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

606
[omitted (1), (1.1), (1.2), (2), (3) and (4)]

injury offences

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

Inquiry of court — certain indictable offences

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

Duty to inform

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

Validity of plea

(4.4) Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.
[omitted (5)]
R.S., 1985, c. C-46, s. 606; R.S., 1985, c. 27 (1st Supp.), s. 125; 2002, c. 13, s. 49; 2015, c. 13, s. 21.
[annotation(s) added]

CCC


Note up: 606(4.1), (4.2), (4.3), and (4.4)

Representation of Victims

Acting on victim’s behalf

2.2 (1) For the purposes of sections 606 [pleas], 672.5 [procedure at disposition hearing], 715.37 [application for court approval, victim interests and other requirements], 722 [victim impact statements], 737.1 [restitution] and 745.63 [hearing before a jury], any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf:

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

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

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

CCC


Note up: 2.2(1) and (2)

Complainants in Sexual Offences

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

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

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

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

Victim Impact Statement

Victims Bill of Rights

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

Young Offenders

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

Victim’s right to information

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

YCJA


Note up: 12

Intervenors

See also: Appeal Procedure#Intervenors

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

  1. R v Fraser, 2010 NSCA 106 (CanLII), 940 APR 281, per Beveridge JA, at para 7 ("I would venture it is trite to say that as a general principle in our adversarial system of justice only the actual parties to the litigation may make written or oral submissions or otherwise participate in legal proceedings before any court or tribunal.")
  2. Fraser, ibid., at para 7 ("Where the proceeding is criminal, there is a heightened concern about the fairness of permitting intervention lest the accused end up, in effect, facing two prosecutors...")
    see also R v Finta, 1990 CanLII 6824 (ON CA), , 1 OR (3d) 183, per Morden ACJ
    R v Neve, 1996 ABCA 242 (CanLII), 108 CCC (3d) 126, per Irving JA
    R v BP, 2010 ABQB 204 (CanLII), AJ No 352, per Strekaf J
  3. R v KAR, 1992 CanLII 4829 (NSCA), , 116 NSR (2d) 418, per Chipman JA, at paras 23 to 25
    Fraser, supra, at para 10

See Also

Other Parties

Disclosure

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

General Principles

See also: Principles of Fundamental Justice

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

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

Materials in possession of the Crown are not the "property" of the Crown but rather is the "property of the public to be used to ensure that justice is done".[3]

Purpose

The right to disclosure is founded in the principle of fair play between parties[4] as well as the right to make full answer and defence. [5]

When the Crown receives evidence it is not information that it holds in trust for the witness, rather it is "property of the public, to ensure that justice is done."[6]

The right to disclosure is "among the most important and fundamental rights guaranteed to an accused in the criminal process".[7]

The right is guaranteed by the right to full answer and defence under s. 7 of the Charter.[8]

The Crown is not an "ordinary litigant". It's "undivided loyalty is to the proper administration of justice".[9]

There is also a common law duty to provide "full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials".[10]

The obligation also arises from "the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the 'property' of the Crown, but is rather 'the property of the public to be used to ensure that justice is done'"[11]

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

s.650
[omitted (1), (1.1), (1.2) 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.

CCC


Note up: 650(3)

Right to make full answer and defence

802 (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.
[omitted (2) and (3)]
R.S., c. C-34, s. 737.

CCC


Note up: 802(1)

The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must "take reasonable step to inquire about ...relevant information".[12]

The duty to make disclosure creates a duty upon the crown to obtain the disclosure from the police and, likewise, the police have a corresponding duty to provide disclosure to the crown. [13]

These obligations are jointly held by both Crown and police.[14]

The "Stinchcombe disclosure regime" only applies to "material relating to the accused’s case" that are "in the possession or control" of the Crown.[15]

When confronted by a "pure fishing expedition", the Crown has no obligation to discover or disclose records.[16]

Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to first-party disclosure.[17]

The right does not distinguish between inadmissible and admissible evidence.[18]

The Crown should advise a self-represented accused of the right to disclosure. The judge should not take a plea until satisfied that the accused has been notified.[19]

Case-to-Meet Principle

The doctrine of the "case-to-meet" is a fundamental requirement of a fair trial. It is protected by the common law and the Constitution.[20]

History

Prior to the 1991 release of the decision of R v Stinchcombe, the general duty to disclosed varied between jurisdictions. The Crown had some discretion to withhold evidence that was deemed uncredible.[21]

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) at 339 and 343 (Stinchcombe #1)
    See also Stinchcombe #1, ibid., at para 20 ("[w]hile the Crown must err on the side of inclusion, it need not produced what is clearly irrelevant") R v Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 SCR 754, per Sopinka J (7:0) at 755 (Stinchcombe #2)
    R v Wickstead, 1997 CanLII 370, [1997] 1 SCR 307, per Sopinka J (9:0)
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 17 d(the crown need not produce records that have no "reasonable possibility" of relevance)
    R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0), at pp. 41 to 42 ("The Crown must disclose to the defence all information whether inculpatory or exculpatory under its control, unless the information is clearly irrelevant or subject to some privilege")
  2. R v Bottineau, 2005 CanLII 63780 (ON SC), 32 CR (6th) 70, per Watt J, at para 31
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ (7:1), at pp. 682 to 683 ("the right of an accused ot make full answer and defence is a pillar of criminal justice on which we rely heavily to prevent the conviction of the innocent... The Crown's constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused's ability to raise a reasonable doubt concerning his innocence"
  3. R v Darwish, 2010 ONCA 124 (CanLII), 252 CCC (3d) 1, per Doherty JA, at para 33
  4. R v Lemay, 1951 CanLII 27 (SCC), [1952] 1 SCR 232, per Locke J (8:1)
    R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16, per Kerwin J (7:2)
  5. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J (5:4), (stated disclosure by the crown is "one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.")
    Girimonte, supra
  6. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) , at para 12
  7. R v Floria, 2008 CanLII 57160 (ON SC), per Croll J, at para 19
  8. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at p. 742
    R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J, at p. 106 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. ")
  9. R v Esseghaier, 2021 ONCA 162 (CanLII), per curiam, at para 26
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at paras 17, 49(complete citation pending)
  10. R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L'Heureux‑Dubé J (6:3)
  11. Darwish, supra, at para 33
    R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, [1991] SCJ No 83, per Sopinka J (7:0), at p. 333 [SCR]
  12. Darwish, supra, at para 31
    R v LAT, 1993 CanLII 3382 (ON CA), 84 CCC (3d) 90, per Lacourcière JA (3:0) ("The Crown has a duty to obtain from the police -- and the police have a corresponding duty to provide to the Crown -- all relevant information and material concerning the case.")
    R v Vokey, 1992 CanLII 7089 (NL CA), 72 CCC (3d) 97, per Goodridge CJ ("The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel.")
  13. LAT, supra
  14. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 14
  15. McNeil, supra, at para 22
  16. R v Gingras, 1992 CanLII 2826 (AB CA), 71 CCC (3d) 53, per curiam
  17. R v Thompson, 2009 ONCA 243 (CanLII), 243 CCC (3d) 331, per Goudge JA (3:0)
    R v Schertzer, 2011 ONSC 65 (CanLII), per Pardu J, at para 41
  18. Bottineau, supra, at para 31
  19. Stinchcombe, supra, at p. 343 ("In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of his right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done.")
  20. R v Heaton, 2014 SKCA 140 (CanLII), 318 CCC (3d) 115, per Jackson JA (3:0), at para 24
    R v Underwood, 1998 CanLII 839 (SCC), [1998] 1 SCR 77, per Lamer CJ (5:0), at para 5
  21. Stinchcombe, supra

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

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

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

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

Identity of Crown

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

Disclosure to Crown

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

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 (SCC), per Sopinka J (7:0), at para 12
  2. R v Dunn, 2009 CanLII 75397 (ON SC), [2009] OJ No 5749, per Boswell J ("Disclosure must be considered within this context. It does not have to be perfect, but it does have to be fundamentally fair and sufficient to allow an accused to exercise his or her constitutional right to make full answer and defence.")
    R v Eddy, 2014 ABQB 164 (CanLII), 583 AR 217, per Acton J, at para 177
  3. Elkins, supra, at para 27
    R v Jackson, 2015 ONCA 832 (CanLII), 332 CCC (3d) 466, per Watt JA, at para 80
    Quesnelle, supra, at para 11
    McNeil, supra, at para 22
  4. R v Mitchell, 2018 BCCA 52 (CanLII), per Fisher JA, at para 51

Preservation of Evidence

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

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

  1. R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J, at para 17
    R v FCB, 2000 NSCA 35 (CanLII), 142 CCC (3d) 540, per Roscoe JA (3:0), at para 10

Sufficiency for Election and Plea

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

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0), at pp. 342-3
    R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0), at paras 19 to 20
    R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0), ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in Stinchcombe, supra, at p. 343 [SCR], at p. 221 [CRR], at p. 14 [CCC], the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process")
    R v NNM, 2006 CanLII 14957 (ON CA), 209 CCC (3d) 436, per Juriansz JA (3:0), at para 37 ("Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. .”")
    R v Kovacs-Tator, 2004 CanLII 42923 (ON CA), 192 CCC (3d) 91, per curiam (3:0), at para 47 (Ont. C.A.) ("the Crown is not obliged to disclose every last bit of evidence before a trial date is set")
  2. Egger, supra, at paras 19 to 20
    R v Lahiry, 2011 ONSC 6780 (CanLII), 283 CCC (3d) 525, per Code J, at para 114 ("It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.")
  3. e.g. R v Black, 1998 CanLII 5042 (NS SC), 515 APR 297, per Saunders J- judge lists tactical factors that come into play in making election

Delaying and Withholding Disclosure

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

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

Delayed Disclosure

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

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

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

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

Withheld Disclosure

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

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

  1. R v Basi, 2009 SCC 52 (CanLII), [2009] 3 SCR 389, per Fish J (7:0), at para 1
    R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 18
  2. R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0), at p. 466
  3. Stinchcombe, supra, at p. 339
  4. R v Vokey, 1992 CanLII 7089 (NL CA), 72 CCC (3d) 97, per Goodridge CJ
  5. Stinchcombe, supra, at p. 339
    R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at para 21
    R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0)
    R v Durette, 1994 CanLII 123 (SCC), [1994] 1 SCR 469, per Sopinka J (4:3)
  6. Stinchcombe, supra, at p. 340
  7. R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0)
  8. McNeil, supra
  9. R v Piaskowski, 2007 MBQB 68 (CanLII), 213 Man R (2d) 283, per Sinclair J, at para 84 ("The Crown’s disclosure obligation requires that it must make known to an accused all relevant materials in its possession or under its control.")

When the Obligations Exist

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

Information in possession of the government but not discovered in the course of the investigation is not governed by Stinchcombe. [1] Stincombe will generally only apply to the "fruits of the investigation". [2] The exception to this exists for records in the possession or control of Crown that is "obviously relevant" to the accused's case.[3] The meaning of "obviously relevant" does not create a new standard of relevance, but applies the normal standard of relevance. However, the certainty to which it would go to full answer and defence is beyond merely "likely" and is something where the use if "easily seen or understood".[4]

  1. R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J, at para 24
  2. Elkins, ibid., at para 25
  3. R v Pascal, 2020 ONCA 287 (CanLII), at para 106 ("However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The police should also disclose to the prosecuting Crown any additional information that are “obviously relevant” to the accused’s case. This “obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.")
    R v Gubbins, 2018 SCC 44 (CanLII), [2018] 3 SCR 35, per Rowe J
  4. R v Sandhu, 2020 ABQB 459 (CanLII), per Achkerl J, at para 36

Defence Engaging Disclosure Obligations

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

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

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

Duty of Diligence

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

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

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

Fishing Expeditions

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

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0),, at p. 342 ("The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge.")
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per Lamer CJ and Sopinka J (dissenting on other issues), at para 5 ("The Crown's duty to disclose information in its possession is triggered when a request for disclosure is made by the accused")
    R v Anderson, 2013 SKCA 92 (CanLII), 300 CCC (3d) 296, per Ottenbreit JA (3:0), at para 17 ("The obligation to disclose will be triggered by a request by or on behalf of the accused")
    R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0), ("The Crown's obligation to disclose is triggered by a request for disclosure from counsel for an accused.")
  2. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at paras 26 to 27 ("The Crown's disclosure obligations are triggered when there is a reasonable possibility the evidence will be useful to the accused in making full answer and defence.")
    see also R v Taillefer, 2003 SCC 70 (CanLII), [2003] 3 SCR 307, per LeBel J (9:0), at para 61
  3. Stinchcombe #1, supra, at p. 342
  4. R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244, per Cory J (5:0), at para 38 ("Whether a new trial should be ordered on the basis that the Crown’s non‑disclosure rendered the trial process unfair involves a process of weighing and balancing. If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial. ...")
  5. Stinchcombe #1, supra, at p. 341
    Dixon, supra, at para 37 ("In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown’s non‑disclosure affected the fairness of the trial process. ... The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.")
  6. Stinchcombe, supra at 341
  7. R v Barbour, 2017 ABCA 231 (CanLII), per curiam, at para 32 ("Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing. The defence must 'exercise due diligence in actively seeking and pursuing Crown disclosure'")
    Dixon, supra, at para 37
    Stinchcombe, supra, at p. 341
  8. Dixon, supra, at para 38
    Barbour, supra, at para 32 ("If the Crown disclosure, or the facts of the case, make it apparent that third parties may have records that will assist in making answer and defence, the accused must act diligently in obtaining that information or in bringing an O’Connor application. The court will not be sympathetic where a tactical decision was made not to pursue known documents")
  9. Barbour, supra, at para 32
  10. Girimonte, supra

Burden

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

Bases for Refusing Disclosure

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

  1. Irrelevant
  2. Not in the control of the Crown
  3. Privileged
  4. Barred by statute

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

Standard of Proof

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

Crown Disputing Relevance

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

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

  1. R v Durette, 1994 CanLII 123 (SCC), 88 CCC (3d) 1, per Sopinka J, at para 44
    In contrast, if the disclosure is third-party records, the burden is upon the accused.
  2. Chaplin, supra, at para 25 (The Crown "must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged")
    see also R v Bottineau, 2005 CanLII 63780 (ON SC), [2005] OJ No 4034, per Watt J, at para 45
  3. Stinchcombe, supra, at p. 339
    Stinchcombe #2, supra, at p. 755
  4. R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244, per Cory J (5:0) , at para 32
  5. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at paras 30 to 33
  6. R v Gubbins, 2018 SCC 44 (CanLII), [2018] 3 SCR 35, per Rowe J (8:1), at para 29
    R v Stipo, 2019 ONCA 3 (CanLII), 370 CCC (3d) 311, per Watt JA, at para 79
    In comparison the standard for third party disclosure is "likely relevant" (see Stipo, at para 80)

Possession or Control

See also: Disclosure of Third Party Records

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

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

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

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

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

  1. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0)
    R v Oleksiuk, 2013 ONSC 5258 (CanLII), 55 MVR (6th) 107, per James J, at para 26
  2. R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J, at para 25
    McNeil, supra, at para 22
  3. R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 (SCC), per L'Heureux‑Dubé J
    McNeil, supra
  4. O'Connor, supra
  5. McNeil, supra, at paras 13, 49

Relevance

See also: Right to Make Full Answer and Defence

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

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

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

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

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

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

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

Limitations on Relevance

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

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

Refusal to disclose clearly irrelevant disclosure

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

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


  1. R v Banford, 2011 SKQB 418 (CanLII), [2012] 3 WWR 835, per McLellan J, at para 5 citing Stinchcombe, among others
  2. R v Banford, 2010 SKPC 110 (CanLII), 363 Sask R 26 (SKPC), per Toth J, at para 13
  3. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 14 (includes “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.”)
    R v Taillefer, 2003 SCC 70 (CanLII), [2003] 3 SCR 307, per LeBel J (9:0), at para 60
    R v Chaplin, 1995 CanLII 126 (SCC), 96 CCC (3d) 225, per Sopinka J (9:0), at p. 236
    R v Dixon, 1998 CanLII 805 (SCC), (1998) 1 SCR 244, per Cory J (5:0), at paras 20 to 22
    R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0), at pp. 41 to 42 (information is relevant if "there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence.")
    R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0), at p. 467
    R v Banford, 2011 SKQB 418 (CanLII), 386 Sask R 141, per McLellan J, at para 5
  4. Egger, supra, at p. 467
    Dixon, supra, at paras 20 to 22
    R v Anderson, 2013 SKCA 92 (CanLII), 300 CCC (3d) 296, per Ottenbreit JA (3:0)
  5. Dixon, supra, at para 23
  6. Chaplin, supra
  7. R v Daley, 2008 BCCA 257 (CanLII), [2008] BCJ No 1341, per Lowry JA, at paras 13 to 15 and by the Ontario Court of Appeal in R v Darwish, 2010 ONCA 124 (CanLII), 252 CCC (3d) 1, per Doherty JA (3:0)
    , 252 CCC (3d) 1, at paras 28 to 30 and 39 to 40 leave to SCC denied
  8. R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0), at p. 467 ("if it is of some use, it is relevant and should be disclosed ...This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.")
  9. R v Barbosa, 1994 CanLII 7549 (ON SC), 92 CCC (3d) 131, per Hill J, at p. 140
    R v Derose, 2000 ABPC 67 (CanLII), 264 AR 359, per Allen J
  10. O'Connor, supra, at para 194
  11. O'Connor, supra, at para 194
  12. O'Connor, supra, at para 194
  13. R v Ahmed, 2012 ONSC 4893(*no CanLII links) - disclosure of source handler notes
    R v Cater, 2011 NSPC 86 (CanLII), 985 APR 46, per Derrick J, at para 26
  14. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 (SCC), per Sopinka J (7:0)
    R v Pena, 1996 CarswellBC 2885(*no CanLII links) , at para 17
  15. Stinchcombe, supra, at p. 12

Privilege

See also: Privilege

Privileged materials can take many forms:[1]

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

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

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

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

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

Burden

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

Crown Counsel's Notes

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

  1. e.g. R v Eddy, 2014 ABQB 164 (CanLII), 583 AR 217, per Acton J, at para 23
  2. see Stinchcombe #1, supra, at p. 336
  3. see Stinchcombe #1, supra, at p. 336
  4. R v Richards, 1997 CanLII 3364 (ON CA), 115 CCC (3d) 377, per curiam
  5. R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0)
  6. R v Polo, 2005 ABQB 250 (CanLII), 195 CCC (3d) 412, per Clackson J, at para 27
    R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0), at para 27
  7. McClure, supra, at para 27
  8. Polo, supra, at para 15
  9. R v Stinchombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0), at para 16
  10. R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281, per McLachlin J (9:0), at para 36
  11. R v Eddy, 2014 ABQB 164 (CanLII), 583 AR 217, per Acton J, at para 92
    See also R v Polo, 2005 ABQB 250 (CanLII), 195 CCC (3d) 412, per Clackson J
  12. R v Reagan, [1991] N.S.J. No 482(*no CanLII links)
    R v Ladouceur (1992), B.C.J. No 2854 (S.C.)(*no CanLII links)
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, 103 CCC (3d) 1, per L'Heureux‑Dubé J

Duration of the Obligation

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

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

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

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

  1. R v Gillis, 1994 ABCA 212 (CanLII), 91 CCC (3d) 575, per Fraser CJ (3:0), at para 7
  2. R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0)
  3. Stinchcombe #1, supra, at p. 343
  4. Chaplin, supra, at p. 743

After Verdict

Fresh Evidence

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

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

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

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

  • There is a connection between "the request for production and the fresh evidence proposed, or in other words the applicant must show that there is a reasonable possibility that the material sought could assist on the application for fresh evidence"
  • There is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
  1. R v Sitaram, 2011 ONCJ 199 (CanLII), 277 CCC (3d) 421, per Nakatsuru J
  2. R v Trotta, 2004 CanLII 60014 (ON CA), 23 CR (6th) 261, per Doherty JA (3:0)
    R v Meer, 2015 ABCA 163 (CanLII), per Veldhuis JA (alone)
  3. Trotta, supra, at para 25
    Meer, supra, at para 8
    R v Johnston, 2019 BCCA 107 (CanLII), at paras 56 to 61
  4. hznmd, supra, at para 64
  5. Trotta, supra, at para 23
    Meer, supra, at para 9

Timing of Disclosure

see also: Delayed Disclosure, above

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

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

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

Consequence of Late Disclosure

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

Witnesses Changing Evidence

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

  1. R v Valdirez-Ahumada, 1992 CanLII 875 (BC SC), per unknown J
  2. See also R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0) ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure.")
  3. R v Nova Scotia Pharmaceutical Society, 1992 CanLII 4513 (NS SC), 320 APR 431, per A Boudreau J
    R v Biscette, 1995 ABCA 234 (CanLII), 99 CCC (3d) 326, per Côté JA (2:1)
    R v Adam, 2006 BCSC 350 (CanLII), 70 WCB (2d) 1008, per Romilly J
  4. R v NNM, 2006 CanLII 14957 (ON CA), 209 CCC (3d) 436, per Juriansz JA (3:0)
  5. R v Barrette, 1976 CanLII 180 (SCC), 29 CCC (2d) 189, per Pigeon J
    R v Davis, 1998 CanLII 18030 (NL CA), 159 Nfld & PEIR 273 (NLCA), per Green JA
  6. R v Buric, 1996 CanLII 1525 (ON CA), 106 CCC (3d) 97, per Labrosse JA (2:1)

Sufficiency of Existing Disclosure

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

Experts

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

  1. see below regarding "Where the Obligation Does Not Exist"
  2. e.g. R v BB, 2016 ABQB 647 (CanLII), per Pentelechuk J - motion for mistrial denied
    R v LAT, 1993 CanLII 3382 (ON CA), 84 CCC (3d) 90, per Lacourcière JA (3:0) - new trial ordered for calling rebuttal witness without sufficient disclosure of rebuttal witness.

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

See also: Disclosure of Third Party Records

In "appropriate cases", the Crown has an obligation "to make reasonable inquiries" with third-party state authorities who are believed to be in possession of threshold relevant materials and it would be "reasonably feasible to do so".[1] This duty may also extend to making inquiries as to the existence of some fact.[2]

For the purpose of first-party disclosure obligations, the "Crown" refers to the "prosecuting Crown" only.[3]

It is not a valid argument to simply assert that the inquiry should be made because it is "easy".[4]

Threshold relevance

Where the evidence is “obviously relevant” the Crown must disclose unprompted.[5]

The test for McNeil record is “likely relevant” or “reasonably possible” relevance. [6] This standard includes all materials that have a "reasonable possibility" to be useful in making full answer and defence.[7]

Duty of Inquiry

Where an inquiry has failed the crown must notify the accused.[8]

The duty is engaged once the prosecuting Crown becomes aware of the relevancy of certain records.[9]

Example organizations

Relevant records held by Health Canada would be considered McNeil records that the Crown is obliged to seek out.[10]

This may include the provincial securities commission who are known to have undertaken a investigation related to the prosecution. [11]

  1. R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 13 and 49
    R v Ahluwalia, 2000 CanLII 17011 (ON CA), 149 CCC (3d) 193, 138 OAC 154 (CA), per Doherty JA, at paras 71 to 72
  2. e.g. R v Esseghaier, 2021 ONCA 162 (CanLII), per curiam, at para 27
  3. R v Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 SCR 390, per Karakatsanis J (7:0)
    McNeil, supra
  4. R v Woods, 2015 ABPC 23 (CanLII), per Lepp J, at para 31 ("it is important to remember that the accused does not overcome the hurdle of providing evidence that the information sought actually exists and is relevant by showing only that the inquiry is easy to make. If it were otherwise, “easy inquiries” would quickly become the equivalent of first party disclosure and the authorities would suffer death by a thousand cuts.")
  5. McNeil, supra
  6. McNeil, supra, at paras 43 and 44
  7. McNeil, supra, at para 44 ("As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.")
  8. McNeil, supra
  9. McNeil
  10. R v King (No. 5), 2017 CanLII 15296 (NLSCTD), per Marshall J, at para 53
  11. R v Clarke, Colpitts and Potter, 2013 NSSC 386 (CanLII), per Hood J

Procedure For Enforcing Right

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

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

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

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

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

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

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

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

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

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

Laporte Inventory

Where there is a dispute over whether there disclosure is complete, the defence may request a "Laporte Inventory", which itemizes all records in the possession of the Crown identifying which records have been disclosed and which records are being held back.[11]

  1. R v Ginnish, 2014 NBCA 5 (CanLII), 1076 APR 156, per Green JA (3:0) , at para 24
  2. R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0)
  3. R v SSS, 1999 CanLII 15049 (ON SC), 136 CCC (3d) 477, per Watt J, at para 34
  4. SSS, ibid., at para 36
    Girimonte, supra, at p. 43
  5. Girimonte, supra
  6. R v Mills, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, per McIntyre J
    R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588, per Lamer J (superior courts have "constant, complete and concurrent jurisdiction" with respect to s. 24(1) of the Charter, even when the matter is still before an inferior court)
  7. R v Smith, 1989 CanLII 12 (SCC), [1989] 2 SCR 1120, per Sopinka J (9:0)
    Rahey, supra, at para 16 ("But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate.") cf. R v Blencowe, 1997 CanLII 12287 (ON SC), 118 CCC (3d) 529, per Watt J - the superior court has "constant, complete and concurrent jurisdiction with the trial court for applications under Charter s. 24(1)"
  8. R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0) - CA dismisses appeal on disclosure order
    R v Mohammed, 2007 CanLII 5151 (ON SC), 152 CRR (2d) 129, per Dawson J, at para 2 - relates to application while matter is before preliminary inquiry judge
    R v Hallstone Products Inc, 1999 CanLII 15107 (ON SC), 140 CCC (3d) 145, per LaForme J
    R v Mincovitch, 1992 CanLII 7585 (ON SC), 74 CCC (3d) 282, per A Campbell J
  9. Girimonte, supra
  10. Mohammed, supra, at para 2
    Hallstone, supra
    Blencowe, supra
  11. R v Laporte, 1993 CanLII 6773 (SK CA), 113 Sask R 34 (CA), per Sherstobitoff JA
    R v Anderson, 2013 SKCA 92 (CanLII), 300 CCC (3d) 296, per Ottenbreit JA (3:0), at para 10

Crown Disclosure Decisions

Review of Decisions

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

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

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

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

  1. R v SSS, 1999 CanLII 15049 (ON SC), 136 CCC (3d) 477, per Watt J, at para 33
    R v Girimonte, 1997 CanLII 1866 (ON CA), 121 CCC (3d) 33, per Doherty JA (3:0), at p. 42
  2. SSS, supra, at para 34
    Girimonte, supra, at p. 43
    R v Laporte, 1993 CanLII 9145 (SK CA), 84 CCC (3d) 343, per Sherstobitoff JA
  3. SSS, supra, at para 34
    Stinchcombe, supra, at pp. 11 to 12
    R v Mohammed, 2007 CanLII 5151 (ON SC), 152 CRR (2d) 129, per Dawson J, at para 2B
    R v Hallstone Products Inc, 1999 CanLII 15107 (ON SC), 140 CCC (3d) 145, per LaForme J, at para 17
    R v Mincovitch, 1992 CanLII 7585 (ON SC), 74 CCC (3d) 282, per A Campbell J ("The Supreme Court of Canada and the Court of Appeal have consistently preferred the trial court to resolve Charter applications because trial courts are best suited to resolve conflicting viva voce evidence and because of the great risk of delay and fragmentation of the trial process inherent in the likelihood of interlocutory appeals.")
  4. Girimonte, supra

Form and Types of Disclosure

Where the Obligation Does Not Exist

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

  1. R v Eddy, 2014 ABQB 164 (CanLII), 583 AR 217, per Acton J, at para 137
    R v Darwish, 2010 ONCA 124 (CanLII), 252 CCC (3d) 1, per Doherty JA (3:0), at paras 32 to 40
    R v Dias, 2010 ABCA 382 (CanLII), 265 CCC (3d) 34, per curiam (3:0), at para 38

Vetting Disclosure

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

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

See further details on Privilege section.

Restricting Access to Disclosure

Breach of Disclosure Obligation

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

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

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

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

Where there is a failure on the part of the Crown to meet the Stinchcombe obligations, there is an obligation on the part of the defence to raise the issue.[7]

A failure to disclose will invoke s. 7 and 11(d) of the Charter.[8]

To establish a breach of s. 7 due to non-disclosure does not require that the claimant show actual prejudice.[9] However, a remedy under s. 24(1) to a breach to s. 7 or 11(d) of the Charter "will generally require a showing of actual prejudice to the accused's ability to make full answer and defence".[10]

When considered in the civil context, not all breaches of disclosure are equivalent.[11]

  1. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J
  2. R v Greganti, 2000 CanLII 22800 (ON SC), 142 CCC (3d) 77, per Stayshyn J
  3. see R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 (SCC), per L'Heureux‑Dubé J J
    R v Bjelland, 2009 SCC 38 (CanLII), [2009] 2 SCR 651, per Rothstein J (4:3)
  4. Dixon, supra, at paras 23 and 24
  5. see Dixon, supra, at paras 31 and 33
  6. R v Demeter, 1975 CanLII 685 (ON CA), (1975) 10 OR 321 (CA), per curiam
    R v Caccamo, 1975 CanLII 11 (SCC), [1976] 1 SCR 786, per de Grandpré J
    Bjelland, supra, at para 25
  7. Greganti, supra ("When the defence is aware of a failure ... to disclose relevant material, there is an obligation to bring that failure to disclose to the attention of the Crown, and ... the Court.")
  8. O'Connor