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=Volume IV: Procedure and Practice=
=Volume IV: Procedure and Practice=
{{Seealso|Topic Index}}
=Volumes=
* [[Full Text:Volume 4A|Full Text:Volume 4A - Police Powers and Bail]]
* [[Full Text:Volume 4B|Full Text:Volume 4B - Pre-trial Matters]]
* [[Full Text:Volume 4C|Full Text:Volume 4C - Preliminiary Inquiry, Trial and Verdict]]
* [[Full Text:Volume 4D|Full Text:Volume 4D - Mental Health]]
* [[Full Text:Volume 4E|Full Text:Volume 4E - Appeals]]
=Introduction to Procedure and Practice=
=Introduction to Procedure and Practice=
{{:Introduction to Procedure and Practice}}
{{:Introduction to Procedure and Practice}}
=Arrest, Detention and Release=
=Arrest and Detention=
{{:Arrest and Detention}}
=Investigative Detention=
{{:Investigative Detention}}
=Warrantless Arrests=
{{:Warrantless Arrests}}
=Post-Charge Detention=
{{:Post-Charge Detention}}
=Warrant Arrests=
{{:Warrant Arrests}}
=Accused Arrest Warrants for Failing to Attend Court=
{{:Accused Arrest Warrants for Failing to Attend Court}}
=Arrest Warrants for Witnesses=
{{:Arrest Warrants for Witnesses}}
=Arrest Warrant for Breach of Court Orders=
{{:Arrest Warrant for Breach of Court Orders}}
=Out of Province Arrest Warrants=
{{:Out of Province Arrest Warrants}}
=Reasonable Suspicion=
{{:Reasonable Suspicion}}
=Procedural Rights=
=Arrest Procedure=
{{:Arrest Procedure}}
=Right to be Informed of Charges=
{{:Right to be Informed of Charges}}
=Right to be Informed of Reasons for Arrest or Detention=
{{:Right to be Informed of Reasons for Arrest or Detention}}
=Right to Counsel=
{{:Right to Counsel}}
=Informational Component to Right to Counsel=
{{:Informational Component to Right to Counsel}}
=Implementation Component to Right to Counsel=
{{:Implementation Component to Right to Counsel}}
=Right to Additional Opportunities to Consult with Counsel=
{{:Right to Additional Opportunities to Consult with Counsel}}
=Post-Charge Detention=
{{:Post-Charge Detention}}
=Waiver of Charter Rights=
{{:Waiver of Charter Rights}}
=Exclusion of Evidence Under Section 24(2) of the Charter=
{{:Exclusion of Evidence Under Section 24(2) of the Charter|Exclusion of Evidence on Rights Violation}}
=Post-Charge Detention=
{{:Post-Charge Detention}}
=Compelling the Accused to Attend Court=
{{:Compelling the Accused to Attend Court|Compelling Attendance}}
=Compelling Attendance by Accused Without Arrest=
{{:Compelling Attendance by Accused Without Arrest}}
=Warrantless Arrests=
{{:Warrantless Arrests}}
=Warrant Arrests=
{{:Warrant Arrests}}
=Laying of an Information=
{{:Laying of an Information}}
=Issuing Process=
{{:Issuing Process}}
=Release by Police=
{{:Release by Police}}
=Procuring the Attendance of a Prisoner=
{{:Procuring the Attendance of a Prisoner}}
=Transfer of Matters to Other Provinces or Territories=
{{:Transfer of Matters to Other Provinces or Territories}}
=Judicial Interim Release / Bail=
{{:Judicial Interim Release|Judicial Interim Release / Bail}}
=Bail Hearings=
{{:Bail Hearings}}
=Grounds for Release=
{{:Grounds for Release}}
=Release With and Without Sureties and Deposits=
{{:Release With and Without Sureties and Deposits|Sureties and Deposits}}
=Terms of Release=
{{:Terms of Release}}
=Breach of Release Conditions=
{{:Breach of Release Conditions}}
=Bail Revocation and Termination=
{{:Bail Revocation and Termination}}
=Estreatment of Recognizance=
{{:Estreatment of Recognizance}}
=Bail Pending Appeal=
{{:Bail Pending Appeal}}
=Bail Review=
{{:Bail Review}}
=Bail for Young Accused=
{{:Bail for Young Accused}}
=Extradition=
{{:Extradition}}
=The Parties in a Proceeding=
=Role of the Crown=
{{:Role of the Crown}}
=Prosecutorial Discretion=
{{:Prosecutorial Discretion}}
=Role of the Defence Counsel=
{{:Role of the Defence Counsel}}
=Conflicts of Interest=
{{:Conflicts of Interest}}
=Role of Law Enforcement=
{{:Role of Law Enforcement}}
=Accused in Court=
{{:Accused in Court|Role of the Accused}}
=Sitting Position of the Accused at Trial=
{{:Sitting Position of the Accused at Trial}}
=Role of Trial Judge=
{{:Role of Trial Judge}}
=Procedural Powers of a Preliminary Inquiry Judge=
{{:Procedural Powers of a Preliminary Inquiry Judge}}
=Judicial Immunity=
{{:Judicial Immunity}}
=Judicial Neutrality and Bias=
{{:Judicial Neutrality and Bias}}
=Functus Officio=
{{:Functus Officio}})
=Role of the Victim and Third Parties=
{{:Role of the Victim and Third Parties}}
=Disclosure=
{{:Crown Duty to Disclose}}
=Types of Disclosable Materials=
{{:Types of Disclosable Materials}}
=Limitations on Access to Disclosure=
{{:Limitations on Access to Disclosure}})
=Police Duty to Collect Evidence=
{{:Police Duty to Collect Evidence}}
=Lost or Destroyed Evidence=
{{:Lost or Destroyed Evidence}}
=Disclosure of Third Party Records=
{{:Disclosure of Third Party Records}}
=Remedy for Breach of Disclosure Obligation=
{{:Remedy for Breach of Disclosure Obligation}}
=Demand for Particulars=
{{:Particulars|Demand for Particulars}}
=Production Orders=
{{:Production Orders}}
=Special Disclosure Issues=
{{:Special Disclosure Issues}}
=Access to Exhibits and Seized Property=
{{:Access to Exhibits and Seized Property}}
=Courts and Charges=
=Criminal Courts and Charges=
=Criminal Courts=
{{:Criminal Courts}}
=Jurisdiction of the Courts=
{{:Jurisdiction of the Courts}}
=Extra-Territorial Jurisdiction of the Courts=
{{:Extra-Territorial Jurisdiction of the Courts}}
=Special Jurisdiction for Offences Over Water=
{{:Special Jurisdiction for Offences Over Water}}
=Procedure for Young Accused=
{{:Procedure for Young Accused}}
=Informations and Indictments=
{{:Informations and Indictments}}
=Laying of an Information=
{{:Laying of an Information}}
=Direct Indictments=
{{:Direct Indictments}}
=Form and Content of Charges=
{{:Form and Content of Charges}}
=Joinder and Severance of Charges=
{{:Joinder and Severance of Charges}}
=Amendments to Charges=
{{:Amendments to Charges}}
=Private Prosecutions=
{{:Private Prosecutions}}
=Types of Offences=
{{:Types of Offences}}
=Public Access to Courts=
=Open Court Principle=
{{:Open Court Principle}}
=Public and Media Restrictions=
{{:Public and Media Restrictions}}
=Statutory Publication Ban on Court Proceedings=
{{:Statutory Publication Ban on Court Proceedings}}
=Excluding People From Court=
{{:Excluding People From Court}})
=Publication Bans Relating to Youth Prosecutions=
{{:Publication Bans Relating to Youth Prosecutions}}
=Access to Records Relating to Youth Prosecutions=
{{:Access to Records Relating to Youth Prosecutions}}
=Access to Exhibits and Seized Property=
{{:Access to Exhibits and Seized Property}}
=Sealing and Unsealing Judicial Authorizations=
{{:Sealing and Unsealing Judicial Authorizations}}
=Pre-Hearing Stages=
=Initial Court Appearances=
=Arraignment and Plea=
{{:Arraignment and Plea}} 
=Plea of Not Guilty and Other Pleas=
{{:Plea of Not Guilty and Other Pleas}}
=Election=
{{:Election}}
=Crown Election=
{{:Crown Election}}
=Defence Election=
{{:Defence Election}})
=Choice of Language=
{{:Choice of Language}}
=Case Management=
{{:Case Management|Case Management Hearings}}
=Applications and Motions Procedure=
{{:Applications and Motions Procedure}}
=Voir Dire=
{{:Voir Dire}}
=Charter Applications=
{{:Charter Applications}}
=Adjournments=
{{:Adjournments}}
=Public and Media Restrictions=
{{:Public and Media Restrictions|Publication Bans}}
=Change of Venue=
{{:Change of Venue}}
=Peace Bonds=
{{:Peace Bonds}}
=Rule Against Collateral Attacks on Court Orders=
{{:Rule Against Collateral Attacks on Court Orders}}
=Judicial Neutrality and Bias=
{{:Judicial Neutrality and Bias}}
==Crown or Judge-Ordered Termination of Proceedings==
=Withdraw and Dismissal of Charges=
{{:Withdraw and Dismissal of Charges}}
=Constitutional Challenges to Legislation=
{{:Constitutional Challenges to Legislation}}
=Mistrials=
{{:Mistrials}}
=Directed Verdicts=
{{:Directed Verdicts}}
=Stay of Proceedings=
{{:Stay of Proceedings}}
=Abuse of Process=
{{:Abuse of Process}},
=Abuse of Process by Crown Counsel=
{{:Abuse of Process by Crown Counsel|By Crown Counsel}}
=Prosecutorial Discretion=
{{:Prosecutorial Discretion}}),
=Abuse of Process by Law Enforcement=
{{:Abuse of Process by Law Enforcement|By Law Enforcement}},
=Abuse of Process Remedies=
{{:Abuse of Process Remedies|Abuse Remedies}}
=Right to a Trial Within a Reasonable Time=
{{:Right to a Trial Within a Reasonable Time}}
=Reasons for Delay=
{{:Reasons for Delay}}
=Prerogative Writs and Judicial Review=
=Mandamus, Certiorari, and Prohibition=
{{:Mandamus, Certiorari, and Prohibition}}
=Habeas Corpus=
{{:Habeas Corpus}}
=Costs=
{{:Costs}}
=Substantive Hearings=
=Preliminary Inquiry=
{{:Preliminary Inquiry}}
=Electing a Preliminary Inquiry=
{{:Electing a Preliminary Inquiry}}
=Preliminary Inquiry Evidence=
{{:Preliminary Inquiry Evidence}}
=Air of Reality Test=
{{:Air of Reality Test}}
=Procedural Powers of a Preliminary Inquiry Judge=
{{:Procedural Powers of a Preliminary Inquiry Judge}}
=Order of Committal to Stand Trial=
{{:Order of Committal to Stand Trial}}
=Trial Process=
{{:Trial Process}}
=Representation at Trial=
{{:Representation at Trial}}
=Opening and Closing Submissions=
{{:Opening and Closing Submissions}}
=Orders to Exclude Witnesses from Court=
{{:Orders to Exclude Witnesses from Court}}
=Testimonial Evidence=
{{:Testimonial Evidence}}
=Examinations=
{{:Examinations}}
=Examinations-in-Chief=
{{:Examinations-in-Chief}},
=Cross-Examinations=
{{:Cross-Examinations}},
=Re-Direct Examinations=
{{:Re-Direct Examinations}})
=Role of Trial Judge=
{{:Role of Trial Judge}}
=Loss of Judge During Proceedings=
{{:Loss of Judge During Proceedings}}
=Juries=
{{:Juries}}
=Jury Selection=
{{:Jury Selection|Selection}}
=Challenge for Cause=
{{:Challenge for Cause}}
=Jury Procedure=
{{:Jury Procedure|Procedure}}
=Jury Instructions=
{{:Jury Instructions|Instructions}}
=Discharging a Juror=
{{:Discharging a Juror}}
=Trial Verdicts=
{{:Trial Verdicts}}
=Analyzing Testimony=
{{:Analyzing Testimony}}
=Weighing Testimony of the Accused=
{{:Weighing Testimony of the Accused}}
=Credibility of Complainants or Victims‎‎=
{{:Credibility of Complainants or Victims‎‎}}
=Credibility and Reliability of Child Witnesses=
{{:Credibility and Reliability of Child Witnesses}})
=Kienapple Principle=
{{:Kienapple Principle}}
=Directed Verdicts=
{{:Directed Verdicts}}
=Mental Health Issues=
=Mental Illness=
{{:Mental Illness}}
=Assessment for Fitness and Criminal Responsibility=
{{:Assessment for Fitness and Criminal Responsibility}}
=Fitness to Stand Trial=
{{:Fitness to Stand Trial}}
=Treatment of an Accused Unfit to Stand Trial=
{{:Treatment of an Accused Unfit to Stand Trial}}
=Not Criminally Responsible Due to Mental Disorder=
{{:Not Criminally Responsible Due to Mental Disorder}}
=Youth Procedure=
==
{{:Procedure Relating to Young Accused}}
=Right of Youth to Notify Parents=
{{:Right of Youth to Notify Parents}}
=Appeals=
{{:Appeals}}
=Right to Appeal=
=Right of Appeal of Verdicts or Sentences for Indictable Offences=
{{:Right of Appeal of Verdicts or Sentences for Indictable Offences}}
=Right of Appeal for Summary Offences=
{{:Right of Appeal of Verdicts or Sentences for Summary Offences}}
=Right of Appeal of Verdicts or Sentences for Indictable Offences=
{{:Right of Appeal of Verdicts or Sentences for Indictable Offences}}
=Right of Appeal of Verdicts or Sentences for Summary Offences=
{{:Right of Appeal of Verdicts or Sentences for Summary Offences}}
=Right of Appeal of a Summary Conviction Appeal Decision=
{{:Right of Appeal of a Summary Conviction Appeal Decision}}
=Appeals Relating to Young Persons=
{{:Appeals Relating to Young Persons}}
=Standard of Appellate Review=
{{:Standard of Appellate Review|Standard of Review}}
=Grounds of Appeal from Verdicts=
{{:Grounds of Appeal from Verdicts}}:
=Unreasonable Verdict=
{{:Unreasonable Verdict}}
=Appeal of an Error of Law=
{{:Appeal of an Error of Law}}
=Appeal on Miscarriage of Justice=
{{:Appeal on Miscarriage of Justice|Miscarriage of Justice}}
=Ineffective Counsel=
{{:Ineffective Counsel}}
=Misapprehension of Evidence=
{{:Misapprehension of Evidence}}
=Sufficiency of Reasons=
{{:Sufficiency of Reasons}}
=Grounds of Appeal from Sentence=
{{:Grounds of Appeal from Sentence}}
=Appeals Other Than Verdicts or Sentences=
{{:Appeals Other Than Verdicts or Sentences}}
=Remedies on Conviction Appeal=
{{:Remedies on Conviction Appeal}}
=Remedies on Acquittal Appeal=
{{:Remedies on Acquittal Appeal}}
=Remedies on Sentence Appeal=
{{:Remedies on Sentence Appeal}}
=Appeal Procedure=
{{:Appeal Procedure}}
=Appeal Procedure For Summary Convictions=
{{:Appeal Procedure For Summary Convictions}}
=Appeal Procedure For Indictable Convictions=
{{:Appeal Procedure For Indictable Convictions}}
=Representation and Attendance on Appeal=
{{:Representation and Attendance on Appeal}}
=Appellate Evidence=
{{:Appellate Evidence}}
=Interim Remedies Pending Appeal=
{{:Interim Remedies Pending Appeal}}
=Bail Pending Appeal=
{{:Bail Pending Appeal}}
=Appeals to the Supreme Court of Canada=
{{:Appeals to the Supreme Court of Canada}}
=Ministerial Review=
{{:Ministerial Review}}
=Appendix=
=Criminal Code and Related Definitions=
{{:Criminal Code and Related Definitions|Definitions}}
=Procedure and Practice Readings List=
{{:Procedure and Practice Readings List|Readings}}
=Criminal Code Forms=
{{:Criminal Code Forms}}
=Misc Procedural Provisions=
{{:Misc Procedural Provisions}}
=Precedents and Checklists=
{{:Precedents and Checklists}}
=Motions Chart=
{{:Motions Chart}}
=Pre-Trial and Trial Motions Checklist=
{{:Pre-Trial and Trial Motions Checklist|Motions Checklist}}
=Trial Preparation Checklist=
{{:Trial Preparation Checklist}}
=Bail Checklist=
{{:Bail Checklist}}
=File Review Checklist=
{{:File Review Checklist}}

Revision as of 13:46, 27 February 2020

Volume IV: Procedure and Practice

See also: Topic Index

Volumes

Introduction to Procedure and Practice

Preface

This text was written as a reference on the procedure for prosecuting and defending Criminal Code offences. The audience for this text will be mostly criminal law practitioners, police officers, and law students, including those who need a convenient way to look up principles and case law. Where possible there are links to cited cases on CanLII for ease of reference.

As of this writing this text remains a work in progress. Errors and omissions should be expected and so it is always recommended that source materials be consulted to confirm the contents of these materials.

Organization of the Section

This section is grouped into three main parts. It is meant to cover all aspects of procedure from the point of initial investigation by police, including arrest and search powers, remedies for charter breaches during investigations, through to bail, which completes the first part. The second part reviews the duties of counsel in preparing for trial, most importantly the right to disclosure. The final part, and biggest, covers many areas of law beginning with the form of charges, pleas, and elections. Motions available before and during trial are then covered. The section also covers the law of preliminary inquiries and trial, focusing on each step of a trial as well as special consideration for jury trials. The last portion of the part involves appeals and cases involving the special procedures around those with mental disorders.

Introduction

Criminal procedure is concerned with manner in which criminal proceedings are conducted within the court. This includes competency of witnesses, oaths and affirmations, and the presentation of evidence.[1]

Adversarial Process

The Canadian system is based on the adversial process. This relies on the assumption that the truth can be best reached through partisan advocacy.[2]

  1. Di Iorio v Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 SCR 152, per Dickson J at 209 (“in one sense, it is concerned with proceedings in the criminal courts and such matters as conduct within the courtroom, the competency of witnesses, oaths and affirmations, and the presentation of evidence.”)
  2. R v Joanisse, 1995 CanLII 3507 (ON CA), 102 CCC (3d) 35, per Doherty JA ("The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”: U.S. v Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence.")

Example Process