Introduction to Procedure and Practice

< 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]

↑ 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.”)
↑ 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.")
Cordell v Second Clanfeild Properties, [1969] 2 CH 9 at p. 16 "translating from Hankford J in 1409, “. . . le ley per bon disputacion serra bien conus”: “Today, as of old, by good disputing shall the law be well known”

Example Process

[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.")
Cordell v Second Clanfeild Properties, [1969] 2 CH 9 at p. 16 "translating from Hankford J in 1409, “. . . le ley per bon disputacion serra bien conus”: “Today, as of old, by good disputing shall the law be well known”

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