Criminal Procedure

CAUTION

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Professional Legal Training Course 2021

Practice Material Criminal Procedure

Recent Contributors: Drew J. Beesley Ellen Leno John Caldwell Micah Rankin Sara Clouston Nicholas Reithmeier Gordon S. Comer Ann Seymour Kasandra Cronin, QC Patti Tomasson Lionel Farmer Derek Wiebe Baljinder Girn

Practice Material Editor: Katie McConchie

September 2021

A requirement for admission to the bar of British Columbia, the Professional Legal Training Course is supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia. © 2021 The Law Society of British Columbia. See lawsociety.bc.ca >Terms of use.

CRIMINAL PROCEDURE CONTENTS

INTRODUCTION

[§1.01] Introduction 1 [§1.02] The Essentials 1 [§1.03] Further Reading 2 1. Annotated Codes, Digests and Reports 2 2. Criminal Procedure 2 3. Evidence 2 4. Substantive Law 2 5. Canadian Charter of Rights and Freedoms 3 6. Advocacy 3 7. Sentencing 3 8. Youth Criminal Justice 3

PRELIMINARY MATTERS

[§2.01] Taking the Case 4 [§2.02] Compelling Appearance and Judicial Interim Release (Bail) 7 [§2.03] Release by Police 7 [§2.04] Release by the Court 8 1. Objectives 8 2. Procedure at the Bail Hearing 9 3. Evidence 11 [§2.05] Bench Warrants, Judicial Referral Hearings, and s. 524 Hearings 12 [§2.06] Charges in Other Jurisdictions 12 [§2.07] Sureties 12 [§2.08] Bail Variations in Provincial Court 13 [§2.09] Bail Reviews in Supreme Court 13 [§2.10] Section 525 Detention Reviews 14 [§2.11] Bail Review Documents (ss. 520 and 521) 14 1. Notice of Application 14 2. Notice to Person(s) Served 15 3. Affidavit in Support 15 4. Transcript of Provincial Court Hearing 15 5. Order After Bail Review 15 [§2.12] Information for Bail Hearings 15 1. Attendance 15 2. Protection of the Public 16 3. Confidence in the Administration of Justice 16 (ii)

[§2.13] Estreatment Procedures 16 [§2.14] Mental Disorder 17 1. Introduction 17 2. Fitness to Stand Trial 17 3. The Defence of Mental Disorder 18 4. Disposition—Accused Not Criminally Responsible by Reason of Mental Disorder 19 5. Sentencing—Accused Has Minor Mental Illness 19 6. The Review Board 19

PREPARATION FOR TRIAL

[§3.01] Introduction 21 [§3.02] Preparation Generally 21 [§3.03] Disclosure of Particulars 21 1. Purpose 21 2. Content 22 3. How and When to Request Particulars 22 4. Limitations 23 5. Remedies for Lack of Disclosure 24 [§3.04] Court Records, Informations, Transcripts 24 [§3.05] Informations and Indictments 25 [§3.06] Limitation Periods 26 [§3.07] Alternatives to Prosecution 26 [§3.08] Early Disposition 27 [§3.09] Plea Resolution 27 [§3.10] Criminal Caseflow Management Rules 29 [§3.11] Initial Appearances 29 [§3.12] Arraignment Hearing 30 [§3.13] Pleas 31 [§3.14] Elections 32 [§3.15] Re-Election 33 [§3.16] Interim Appearances and Pre-Trial Conferences in Provincial Court 33 1. Interim Appearances and Pre-Trial Conferences to Ensure Trial Readiness 33 2. Pre-Trial Conferences During COVID-19 34 [§3.17] Assignment to a Judge and Courtroom 34 [§3.18] Adjournment 35 [§3.19] Motion for Particulars 36 [§3.20] Joinder and Severance 36 [§3.21] Stays of Proceedings, Withdrawals and Dismissals for Want of Prosecution 36 [§3.22] Interviewing Clients 37 1. Client 37 2. Offence 37 (iii)

3. Arrest, Detention and Searches 37 4. Statements and Confessions 38 5. Evidence 38 6. Real Evidence 38 7. Physical Injuries or Complaints 38 8. Witnesses and Defence Evidence 38 9. Advice for Client 38 [§3.23] Witness and Client Statements 39 [§3.24] Witnesses 39 [§3.25] Expert Witnesses 40 [§3.26] Character Witnesses 40 [§3.27] Withdrawal as Counsel 40

APPENDICES—NOT AVAILABLE IN ONLINE VERSION Appendix 1 – Criminal Offences Flowchart 44 Appendix 2 – Provincial Offences Flowchart 45

THE TRIAL

[§4.01] The Preliminary Inquiry 46 1. Election Procedure 46 2. Election Considerations—Trial or Preliminary Inquiry? 46 3. Limiting the Scope of a Preliminary Inquiry 47 4. Evidence on the Preliminary Inquiry 47 5. Order Following Preliminary Inquiry 49 6. By-passing the Preliminary Inquiry 50 7. Re-election 50 8. Review by Certiorari 50 [§4.02] Disclosure Applications 50 1. General 50 2. Medical and Third Party Records 51 3. Defence Disclosure 52 [§4.03] Pre-Trial Conferences 52 [§4.04] Jury Selection 52 [§4.05] The Crown’s Case 54 [§4.06] Opening in Non-Jury Trials 54 [§4.07] Opening Addresses by the Crown in Jury Trials 55 [§4.08] Direct Examination 55 [§4.09] Leading Questions 55 1. When Permitted 55 2. Exceptions 56 [§4.10] Refreshing a Witness’s Memory 56 [§4.11] Admissions of Fact 57 [§4.12] Witnesses and Exhibits 57 (iv)

[§4.13] Cross-Examination 58 [§4.14] Limits of Cross-Examination 59 [§4.15] Re-Examination 60 [§4.16] No-Evidence Motion 60 1. The Rule 60 2. Circumstantial Evidence 60 [§4.17] Insufficient Evidence Motion 61 [§4.18] Defence Case 61 1. Whether to Call Evidence 61 2. Presenting the Evidence 61 [§4.19] Cross-Examination of the Accused 62 1. Scope of Cross-Examination 62 2. Previous Convictions 62 [§4.20] Defence Re-Examination 63 [§4.21] Rebuttal or Evidence in Reply 63 1. When Rebuttal is Proper 63 2. Examples of Rebuttal 64 [§4.22] Surrebuttal 64 [§4.23] Addresses of Counsel 64 1. Order 64 2. Content 65 3. Crown 65 4. Defence 65 [§4.24] Judge’s Charge on a Jury Trial 65

EVIDENCE

[§5.01] Burden of Proof and Standard of Proof 67 1. General Rule 67 2. Statutory Presumptions That Shift the Burden of Proof 68 3. Inferences From Evidence 68 [§5.02] Eyewitness Identification of the Accused 69 1. Descriptions of the Accused 69 2. Police “Line-ups” and Photo Packs 69 3. Accused Sitting in Body of Courtroom 70 4. Video Evidence of an Offence 70 [§5.03] Voir Dire 70 [§5.04] Statements of the Accused 70 1. General 70 2. Persons in Authority 71 3. Voluntariness 71 4. Charter Sections 7 (Right to Silence) and 10(b) (Right to Counsel) 72 [§5.05] Statements of Non-Accused Witnesses 72 [§5.06] Hearsay 73 1. General Rule 73 2. Traditional Exceptions 73 (v)

3. The “Principled Approach” 74 4. Application of the “Principled Approach” to Prior Inconsistent Statements 74 5. Documents as Hearsay—Statutory Exceptions 75 [§5.07] Character Evidence 75 1. Evidence of the Good or Bad Character of the Accused 75 2. “Putting Character in Issue” 76 3. Character of Non-Accused Witness 76 4. Criminal Records 77 5. Impermissible Questions 77 [§5.08] Opinion Evidence 77 1. General 77 2. Admissibility of Expert Evidence 78 3. Factual Basis for Expert Opinion 78 4. Procedure 78 [§5.09] Rebuttal Evidence 79

CHARTER REMEDIES

[§6.01] Introduction 80 1. Legal Framework 80 [§6.02] Jurisdiction 80 1. Challenges to the Constitutionality of Legislation (s. 52) 80 2. Challenges to State Conduct (s. 24) 80 [§6.03] Notice and Timing 81 [§6.04] Standing 81 1. Public Interest Standing 81 2. Private Interest Standing 81 [§6.05] Unconstitutional Legislation (s. 52) 82 1. Section 1 Analysis 82 [§6.06] Unconstitutional State Conduct (s. 24) 83 1. Establishing the Charter Breach 83 2. Seeking an Effective Remedy 83 3. Procedure and Burden 83 [§6.07] Exclusion of Evidence 84 1. Test for Exclusion Under s. 24(2) 84 [§6.08] Section 7 Rights 84 1. Vague or Overbroad Legislation 84 2. Abuse of Process 84 3. Disclosure 85 4. Pre-Charge Delay 85 [§6.09] Rowbotham Applications (s. 7 and s. 11(d)) 86 [§6.10] Effective Assistance of Counsel (s. 7 and s. 11(d)) 86 [§6.11] Search and Seizure (s. 8) 87 1. Authorized by Law 87 2. Conducted in a Reasonable Manner 87 3. Nexus Between the Breach and the Evidence 87 4. Searches of Law Offices 88 (vi)

[§6.12] Right to Counsel (s. 10(b)) 88

[§6.13] Post-Charge Delay (s. 11(b)) 89 1. Procedure 89 2. Legal Test 89 [§6.14] Cruel and Unusual Punishment (s. 12) 89 [§6.15] Costs or Damages 90 1. Costs Against the Crown in Criminal Proceedings 90 2. Damages for Charter Violations in Civil Proceedings 90 [§6.16] Bans on Publication 90

THE YOUTH CRIMINAL JUSTICE ACT

[§7.01] Introduction 91 1. Preamble 91 2. Interpretation 91 3. Declaration of Principle 91 4. Overview of Recent Changes 91 5. Further Resources 92 [§7.02] Jurisdiction 92 [§7.03] Alternatives to Charging an Offence 92 1. Extrajudicial Measures 92 2. Extrajudicial Sanctions 93 [§7.04] First Appearance 93 [§7.05] Detention and Release Before Sentencing (Bail) 93 [§7.06] Conferencing 94 [§7.07] Trial 94 1. Venue 94 2. Evidence 94 [§7.08] Youth Sentences 95 1. The Purpose and Principles of Sentencing 95 2. Available Sentences 96 [§7.09] Appeals and Reviews 96 1. Appeals 96 2. Reviews 96 [§7.10] Provincial Statutory Offences 97

SENTENCING

[§8.01] Introduction 98 [§8.02] A Sentencing Hearing—The Process 98 1. Preliminary Issues 98 2. Crown’s Submissions 99 3. Defence Submissions 102 [§8.03] Preparing Submissions on Sentence 104 (vii)

[§8.04] Available Sentences 105 1. Absolute Discharge 105 2. Conditional Discharge 105 3. Probation Orders 106 4. Suspended Sentence and Probation Order 106 5. Fines 107 6. Fine Plus Probation Order 108 7. Restitution 108 8. Conditional Sentence Order of Imprisonment 108 9. Intermittent Sentence of Imprisonment 112 10. Intermittent Sentence of Imprisonment and Probation 112 11. Intermittent Sentence of Imprisonment and Fine 112 12. Imprisonment for 2 Years Less a Day, or Less (“Provincial Time”) 113 13. Imprisonment for 2 Years Less a Day, or Less (“Provincial Time”) and Probation 113 14. Imprisonment and Fine 113 15. Imprisonment for a Term of 2 Years or More (“Federal Time” or “Penitentiary Time”) 113 16. Imprisonment for a Term of 2 Years and Probation 114 17. Imprisonment of 2 Years or More and Fine 114 18. Sentences of Life Imprisonment 115 19. Additional Considerations for Sentences of Imprisonment 115 20. Dangerous Offenders and Long-Term Offenders 117 [§8.05] Firearms and Weapon Prohibition Orders 118 1. Mandatory Firearm and Weapon Prohibition Orders 118 2. Discretionary Firearm and Weapon Prohibition Orders 119 3. Preventative Firearm and Weapon Prohibition Orders 119 4. Lifting of Firearm and Weapon Prohibition Orders 119 5. Surrender and Forfeiture Orders 119 [§8.06] DNA Orders 120 1. Generally 120 2. Primary Designated Offences 120 3. Secondary Designated Offences 120 4. Collection of DNA Sample 120 5. Failing to Comply With DNA Order 120 6. Use of DNA Information 120 [§8.07] Sex Offender Information Registration Act (“SOIRA”) Orders 120 1. Purpose and Applicability of SOIRA 120 2. Appeals and Termination 121 3. Obligations if SOIRA Order Imposed 121 [§8.08] Immigration Consequences of Sentencing 122 [§8.09] Record Suspensions and Pardons 123

APPEALS—SUMMARY CONVICTION OFFENCES

[§9.01] Introduction 124 [§9.02] Procedure 124 1. Jurisdiction 124 2. Documents and Timelines 124 3. Extension of Time to Appeal 125 4. Pre-Hearing Conferences and Applications for Directions 126 (viii)

[§9.03] Other Forms of Appeal 126 1. Trial de Novo 126 2. Summary Appeals on the Transcript or an Agreed Statement of Facts 126 3. Section 830 Appeals 126 [§9.04] Bail Pending Appeal 126

[§9.05] Hearing the Appeal 127 1. Grounds of Appeal 127 2. The Hearing 127 [§9.06] Orders 127 [§9.07] Further Appeals for Summary Convictions 127

APPEALS—INDICTABLE OFFENCES

[§9.08] Governing Provisions 127 [§9.09] Notice of Appeal 128 [§9.10] Grounds of Appeal 129 1. From Conviction 129 2. From Acquittal 129 3. From Sentence 129 [§9.11] Bail Pending Appeal 129 1. Bail Pending Appeal From Conviction 129 2. Bail Pending Appeal From Sentence 129 3. Review of Initial Decision 130 4. Bail Pending New Trial 130 [§9.12] Extension of Time to File 130 [§9.13] Transcripts and Appeal Books 130 [§9.14] Factums 130 [§9.15] Abandonment 131 [§9.16] Setting Down the Hearing 131 [§9.17] Raising a New Issue on Appeal 131 [§9.18] The Hearing of the Appeal 131 1. Appeals From Conviction 131 2. Appeals From Acquittal 132 3. Appeals From Sentence 132 [§9.19] Miscellaneous Appeal Provisions 133 [§9.20] Appeals to the Supreme Court of Canada 133 [§9.21] Prerogative Writs 134

APPENDIX—NOT AVAILABLE IN ONLINE VERSION

Appendix 3 – Appellate Flowchart 135 1 Chapter 1 [§1.02] The Essentials All criminal law lawyers must have at least one current annotated Criminal Code, R.S.C. 1985, c. C-46. Mar- 1 tin’s Annual Criminal Code and Tremeear’s Annual Introduction Criminal Code (both from Thomson Reuters) are the most commonly used versions. These annotated Codes include the following statutes relevant to criminal practice: [§1.01] Introduction Criminal Code Lawyers who intend to specialize in the practice of crim- Canada Evidence Act inal law must be familiar with a wide variety of statutory, regulatory, evidentiary, procedural and administra- Canadian Charter of Rights and Freedoms tive materials. Controlled Drugs and Substances Act One excellent way for criminal law lawyers to keep up Youth Criminal Justice Act to date on developments in this area of the law is to become active in local Criminal Justice Subsections of the Tremeear’s also includes other useful statutes such as BC Branch of the Canadian Bar Association (CBA) and the DNA Identification Act, the Firearms Act and the to attend section meetings. These meetings bring togeth- Interpretation Act. Martin’s includes an “Offence Grid” er Crown and defence counsel to discuss current issues. and Tremeear’s includes “Offence Tables,” all of which Local judges or other speakers often attend and provide are useful in setting out possible sentences and ancillary input on specific issues in criminal law and practice. For orders for each offence. information, contact the CBA in Vancouver at While these publications are very useful tools, counsel 604.687.3404 or through their website (www.cba.org). should never assume that they accurately set out the cur- Lawyers should also regularly attend courses and rently in force provisions of the Criminal Code. Legisla- seminars relating to the practice of criminal law. The tive amendments are ongoing, and it is impossible to Continuing Legal Education Society of BC frequently keep a yearly text completely current. Supreme Court of hosts such programs, some of which are available by Canada and British Columbia Court of Appeal decisions live webinar or though webinar archives. The materials can also affect substantive and procedural criminal law produced for these programs are topical and current, and at any time. Criminal law lawyers need to stay informed materials from courses conducted in previous years are of both legislative reforms and court decisions affecting also available. Courthouse Libraries BC also provides the practice of criminal law. webinars, both live and in their online archives. In addition to an annotated Code, criminal law lawyers The Federation of Law Societies of Canada provides an should know and have access to the Criminal Rules of excellent educational opportunity each summer. The the Supreme Court of BC, the Provincial Court of BC National Criminal Law Program presents, in alternating Criminal Caseflow Management Rules and the BC years, a Substantive Law Program and a Criminal Evi- Criminal Appeal Rules, 1986. These rules govern crimi- dence and Procedure Program. nal practice in the various levels of court. They are supplemented by practice directions published on the Criminal law lawyers seeking practice advice, including courts’ websites. Most of these rules and practice direc- on ethical issues, should consider contacting senior de- tions are gathered together in the British Columbia fence or Crown counsel, a Practice Advisor, or the Rules of Court and Related Enactments, published by CBA’s Criminal Practice Advisory Committee. The the Queen’s Printers for British Columbia, and can also Committee consists of senior criminal counsel who are be found in BC Annual Criminal Practice (Thomson prepared to give guidance on such matters. The names Reuters). of current members of the Committee may be obtained from the CBA or from the CBABC Lawyers’ Directory, Online services and websites also afford access to rele- published annually by the BC Branch of the CBA. vant legislation and case law. Specialized criminal-law content is available online from LexisNexis’s Quicklaw Defence counsel should be aware that many prosecutors service in their “Criminal Essentials” package, and from are willing to assist them, if asked, by discussing proce- Carswell’s Westlaw service in their “Criminal Source” dural questions and other matters of mutual concern. package. Portions of the LexisNexis and Carswell services are available for free at BC Courthouse Libraries. CanLII provides free access to case law and statutory 1 Micah Rankin, Crown Counsel, Prosecution Support Unit, kindly materials. Provincial and federal statutes are available revised this chapter in April 2021. This chapter was previously re- online (www.bclaws.ca and www.laws.justice.gc.ca/). vised by Joseph J. Blazina (2016, 2018, and 2019), and by Tina L. The Courts of British Columbia website contains recent Dion in 2002 for Aboriginal law content. judgments and court schedules, as well as court policies, Criminal Procedure 2 procedures and rules (www.bccourts.ca). Court Services Quigley, Tim, Procedure in Canadian Criminal Online, BC’s electronic court registry, allows users to Law, 2nd ed. Toronto: Thomson Reuters (loose- search for upcoming court dates by client name or court leaf). file number (justice.gov.bc.ca/cso/index.do/). Salhany, The Honourable R.E., Canadian Criminal Note that during the COVID-19 pandemic, there have Procedure, 6th ed. Toronto: Thomson Reuters been several procedural changes in the courts in order to (loose-leaf). ensure the functioning of the court system in a safe Salhany, The Honourable R.E., Criminal Trial manner. The Provincial Court, Supreme Court and Court Handbook. Toronto: Thomson Reuters (loose-leaf). of Appeal have issued practice directives and notices Watt, D., and J. Di Luca, Carswell’s Forms and related to matters such as court protocols, scheduling, Precedent Collection: Criminal Law Precedents, filing, and remote appearances. The Practice Material: 2nd ed. Toronto: Thomson Reuters (loose-leaf). Criminal Procedure does not generally cover these or other COVID-19 related measures. For information on 3. Evidence modified procedures during COVID-19, consult each court’s website. (a) Generally Casey Hill, The Honourable S., et al, [§1.03] Further Reading McWilliams’ Canadian Criminal Evidence, 5th ed. Toronto: Carswell (loose-leaf). Listed below are law reports, texts and loose-leaf services for the working library of a criminal law lawyer. Fuerst, Michelle, et al, Sopinka, Lederman & These resource materials are available through the vari- Bryant – The Law of Evidence in Canada, 5th ous branches of the BC Courthouse Library Society and ed. Toronto: LexisNexis, 2018. in the libraries of the law schools in the province. Gibson, John L., and Henry Waldock, Criminal Law Evidence, Practice and 1. Annotated Codes, Digests and Reports Procedure. Toronto: Carswell (loose-leaf). British Columbia Law Reports: Criminal Cases Hageman, Cecilia, et al, DNA Handbook, 2nd Canada Supreme Court Reports ed. Toronto: LexisNexis, 2008. Criminal Reports (C.R.) Rose, David and Lisa Goos, DNA: A Practical Canadian Abridgment: Criminal Law Digest Guide. Toronto: Carswell (loose-leaf). Crankshaw’s Criminal Code of Canada Salhany, The Honourable R.E., The Practical Guide to Evidence in Criminal Cases, 8th ed. Canadian Criminal Cases (C.C.C.) Toronto: Carswell, 2013. Martin’s Annual Criminal Code Segal, M., Disclosure and Production in Supreme Court of Canada Judgments (Lexum) Criminal Cases. Toronto: Carswell (loose- Tremeear’s Annual Criminal Code leaf). Weekly Criminal Bulletin (W.C.B.) Watt, David, Watt’s Manual of Criminal CLE Criminal Case Digests Evidence 2018. Toronto: Carswell. (b) Search & Seizure 2. Criminal Procedure Fontana, James, and David Keeshan, The Law Ewaschuk, E.G., Criminal Pleadings and Practice of Search and Seizure in Canada, 11th ed. in Canada, 2nd ed. Toronto: Thomson Reuters Toronto: LexisNexis, 2019. (loose-leaf). Gold, A.D., The Practitioner’s Criminal Code, Hutchison, Scott C., Hutchison’s Search 2020 ed. Toronto: LexisNexis, 2019. Warrant Manual 2015. Toronto: Carswell. Hamilton, K., Judicial Interim Release—Bail Hutchison, Scott C., Search and Seizure Law Manual, 4th ed. Toronto: LexisNexis (loose-leaf). in Canada. Toronto: Carswell (loose-leaf). Kenkel, J.F., Criminal Lawyers’ Trial Book. 4. Substantive Law Toronto: LexisNexis (loose-leaf). McEwan, J.K., Sopinka on the Trial of an Action, (a) Generally 3rd ed. Toronto: LexisNexis, 2016. Barrett, J. and Shandler, R., Mental Disorder Pearson, Jeffrey E. and Lori A. Thompson, in Canadian Criminal Law. Toronto: Carswell Criminal Procedure: Canadian Law and Practice, (loose-leaf). 2nd ed. Toronto: LexisNexis (loose-leaf).

Criminal Procedure 3 Coughlan, S., et al, Annual Review of Criminal 6. Advocacy Law 2017. Toronto: Carswell. (a) Witnesses Gibson, John L., and Henry Waldock, Levy, Earl J., QC, Examination of Witnesses in Canadian Criminal Code Offences. Toronto: Criminal Cases, 7th ed. Toronto: Carswell, Carswell (loose-leaf). 2016. Gordon, John M., and Susan Brown, Working Mewett, Alan W., QC, and Peter Sankoff, Manual of Criminal Law. Toronto: Carswell Witnesses. Toronto: Carswell (loose-leaf). (loose-leaf). Salhany, The Honourable R.E., et al, Cross- Manning, Morris, and Peter Sankoff, Manning, Examination: The Art of the Advocate, 4th ed. Mewett & Sankoff – Criminal Law, 5th ed. Toronto: LexisNexis, 2016. Toronto: LexisNexis, 2015. (b) Jury Trials Stuart, D., Canadian Criminal Law: A Treatise, 7th ed. Toronto: Carswell, 2014. Der, Balfour Q.H., The Jury—A Handbook of Law and Procedure. Toronto: LexisNexis (b) Drinking and Driving (loose-leaf). Gold, Alan D., Defending Drinking, Drugs Ferguson, G.A., et al, Canadian Criminal Jury and Driving Cases 2019. Toronto: Thomson Instructions (CRIMJI). Vancouver: CLEBC, Reuters, 2019. 2019 (online). Jokinen, Karen, and Peter Keen, Impaired (c) Appeals Driving and other Criminal Code Driving Offences: A Practitioner’s Handbook. Bennett, Elizabeth, Indictable Appeals in Toronto: Emond, 2018. British Columbia. Toronto: Carswell, 1995. McLeod, R., QC, et al, Breathalyzer Law in Karimjee, Moiz, Issues in Criminal Trials and Canada: The Prosecution and Defence of Summary Appeal Law, 2nd ed. Toronto: Drinking and Driving Offences, 5th ed. LexisNexis, 2018. Toronto: Carswell (loose-leaf). Gelowitz, Mark, et al, Sopinka and Gelowitz Segal, M., Manual of Motor Vehicle Law, 3rd on the Conduct of an Appeal, 4th ed. ed. Toronto: Carswell (loose-leaf). LexisNexis Canada, 2018. Segal, M., Motor Vehicle Reports. Toronto: 7. Sentencing Carswell. Nemet-Brown, S., Canada Criminal Sentencing (c) Drugs Digest. LexisNexis Canada (loose-leaf). Brucker, Theresa M., The Practical Guide to Nadin-Davis, P., and C. Sproule, Canadian the Controlled Drugs and Substances Act, 4th Sentencing Digest Quantum Service. Toronto: ed. Toronto: Carswell, 2008. Carswell (loose-leaf). MacFarlane, Bruce A., QC, et al, Cannabis Green, Ross Gordon, Justice in Aboriginal Law. Toronto: Canada Law Book, 2018. Communities: Sentencing Alternatives. Ottawa: MacFarlane, Bruce A., QC, et al, Drug Of- Canadian Electronic Library, 2016. fences in Canada, 4th ed. Toronto: Canada Ruby, C., et al, Sentencing, 9th ed. Toronto: Law Book (loose-leaf). LexisNexis, 2017. 5. Canadian Charter of Rights and Freedoms 8. Youth Criminal Justice Asma, Matthew and Matthew Gourlay, Charter Harris, Peter J., and Miriam H. Bloomenfeld, Youth Remedies in Criminal Cases: A Practitioner’s Criminal Justice Act Manual. Toronto: Canada Handbook. Toronto: Emond, 2018. Law Book (loose-leaf). Dunn, Melanie, and Andrew Bernstein, Canadian Tuck-Jackson, The Honourable Andrea E.E., et al, Charter of Rights Annotated. Toronto: Canada Law Annotated Youth Criminal Justice Act, 2nd ed. Book (loose-leaf). Toronto: LexisNexis (loose-leaf). McLeod, R.M., QC, et al, Canadian Charter of Tustin, L. and R. Lutes, QC, A Guide to the Youth Rights: The Prosecution and Defence of Criminal Criminal Justice Act, 2020/2021 ed. Toronto: and Other Statutory Offences. Toronto: Carswell LexisNexis, 2019. (loose-leaf). Stuart, Don. Charter Justice in Canadian Criminal Law, 7th ed. Toronto: Carswell, 2018.

Criminal Procedure

4  responsibility for the whole of the case (this is Chapter 2 the most common situation); or  responsibility for several charges against the same accused (also a very common situation). 1 Preliminary Matters A general introduction by a lawyer at a court appearance implies that the lawyer is prepared to see the matter through to the conclusion of the case. It is important that This chapter deals with preliminary matters in a criminal seeing the matter through to the conclusion of the case case, including taking the case and bail. include compliance with the Criminal Caseflow Man- agement Rules (“CCFM Rules”) as amended (available An Act to amend the Criminal Code, the Youth Criminal on the Provincial Court website: www.provincialcourt. Justice Act and other Acts and to make consequential bc.ca). The CCFM Rules are designed to manage adult amendments to other Acts, S.C. 2019, c. 25 (former and youth criminal cases in Provincial Court. The Bill C-75) made changes to the bail regime. These CCFM Rules set out the obligations and expectations of changes came into force on December 18, 2019. Among Crown counsel, defence counsel and the court for re- other things, the changes increase the types of conditions quired pre-trial court appearances. An example of a pre- that police can impose on an accused person, provide trial appearance is an arraignment hearing. See Chapter 3 guidance on bail conditions, and require that the bail for more on the CCFM Rules. court consider the circumstances of Indigenous accused and accused from vulnerable populations. It is best practice that a lawyer who acts for a client only in a limited capacity should promptly disclose the lim- [§2.01] Taking the Case ited retainer to the court and to any other interested person in the proceeding, if failure to disclose would mis- A lawyer’s first decision concerning a criminal matter lead the court or that other person. See also the Code of will be whether to take the case. This decision can be Professional Conduct for British Columbia (the “BC made irrevocably at the outset, or it may be reserved to a Code”), section 3.2-1.1 (“Limited Scope Retainers”). later stage in the proceedings or even depend upon com- In deciding whether to take a case, the lawyer should pletion of certain conditions. The lawyer may take on the consider several factors: entire case until completion or take on a limited part of the proceedings only. 1. the nature of the charge and the complexity of the case, including whether the lawyer is competent in These services are commonly provided: that area of law;  interview with the accused or associate of the 2. the probable time required, and the lawyer’s accused—preliminary advice given and no workload; further services provided; 3. the amount of the fee, and the prospects of being  attendance for a police interview of the accused paid; who is surrendering on a warrant—no further 4. whether the client is in custody, and if so, whether services; the location is remote;  attendance to all matters up to conclusion of bail 5. the effect of the case on the position of the lawyer hearing—no further services; in the community;  application for a Rowbotham order, obliging the 6. the position of the client in the community as it state to pay for or make a contribution to the affects the position of the lawyer in the case; cost of the accused’s defence; 7. the lawyer’s relationship with others involved in  attendance to all matters up to conclusion of pre- the case, including the judge, prosecutor, victims, liminary hearing—no further services; relatives, witnesses, co-accused, co-counsel, etc. (i.e. whether there are any conflicts of interest); 8. whether the client previously retained other counsel for this matter; and 1 Ellen Leno, Administrative Crown Counsel, Vancouver Provin- cial Crown Counsel, kindly revised this chapter in December 9. proceeds of crime legislation and anti-money 2020. Previously revised by Mornè Coetzee (2019); Ellen Leno laundering rules (see Practice Material: Profes- (2017); Adrienne V. Lee (2011 and 2012); Richard Hewson sionalism: Practice Management, Chapter 7, for (2006); Kenneth D. Madsen (2003–2005); Thomas E. Burns more on this topic). (1996–2002); and Bronson Toy (1994). Reviewed by Tina L. Dion in 2002 for Aboriginal law content.

Criminal Procedure 5 The weight given to these and other factors will vary in . Notice of 24-Hour Prohibition, and Notice each case. For example, a lawyer might decide not to of 90-Day Administrative Driving Prohibi- defend a client who has a history of firing counsel just tion, in impaired driving cases. before hearings (see 8. above), or a lawyer in a small The lawyer should obtain background information town may decide against defending a local accused be- about the client: cause of the lawyer’s relationship with others in the case (see 7. above).  full name; There are many ways to establish the solicitor-client re-  age (and possibly birth date) and birthplace; lationship. Often, the client initiates the relationship by  present residence, whether owned or rented, etc.; contacting the lawyer directly or through an intermediary such as a friend or relative. Legal aid administrators  past addresses, and how long at each; might contact the lawyer who has registered to provide  present employment status, the name of employ- legal aid services. When the client contacts the lawyer er, position held, etc.; directly, the lawyer may immediately begin considering the case and whether to accept it. If an intermediary is  employment history; involved, the lawyer’s first task is to determine whether  marital status, length of marriage, etc.; the intermediary has authority and is accurately representing the wishes of the client. The lawyer should make  immediate family—names, ages, sex, etc.; every effort, as soon as possible, to confirm that the cli-  other relatives; ent wants the lawyer to consider taking the case. In addition, instructions received through intermediaries must  friends and other roots in the community; be confirmed with the client, as soon as possible. Court  education; proceedings may be delayed and counsel may be embarrassed when there is confusion about who (if anyone) is  special training; acting as counsel, or if there is uncertainty about the  clubs, social and religious affiliations, etc.; lawyer’s instructions. These difficulties occur less often when the lawyer deals directly with the client.  criminal record; Prompt, direct contact with clients is always important to  psychiatric history; reassure them that their interests are being addressed.  other outstanding charges; This is critical with clients who are in custody. In practice, telephone contact can almost always be made at any  summary of financial position; and detention facility, although the lawyer may have to leave  health problems (affects trial date). a message and wait a few minutes for the client to call back. It may be unwise in the initial stages to ask the accused for their version of the circumstances of the offence. The initial contact with the client can vary from a short Confine your inquiry at this stage to obtaining telephone message to a full interview. Whatever contact background details. is made, certain information must be obtained from the client immediately: When a client has been released by the police, other information from the police may not be available until af-  the full legal name of the client; ter charges have been approved by Crown counsel. Doc-  the name under which the client is charged; uments that should be obtained as soon as possible after that time include the following:  the date and time of the next court appearance; 1. The court registry number for the file (which  the location of the court where the appearance may be obtained from the daily court list). must be made; 2. The sworn Information (Form 2) showing the  the address and telephone number for the client; registry file number, the charges and the date the  bail information if the client is in custody; and charge was laid. A copy is usually available from the court clerk or from the prosecutor at  copies of any documents in the client’s posses- one of the initial appearances. sion, which may include: 3. Particulars of the Crown’s case against the ac- . the release order (Form 11); cused (also known as circumstances—see . Certificate of Qualified Technician, in §3.03). The lawyer should also obtain the crimi- impaired driving cases involving a breath nal record of the client and any statements the sample; client made, including verbal statements that have been recorded by the police.

Criminal Procedure 6 4. Informations to Obtain Search Warrants say with confidence that they will proceed to specific (Form 1) and copies of the search warrants stages, where they will have to reconsider the matter. themselves. Although it is possible to accept a case with minimal 5. Copies of all documents in the possession of the information, it is advisable to be as well informed as Crown, including: possible when deciding to accept the client’s case. Fur- ther interviews with the client are often difficult to ar-  notices pertaining to certificates, greater range, so it is best to interview the client thoroughly and penalties, etc.; carefully at the beginning. The client’s background in-  certificates themselves (Certificate of formation not only familiarizes the lawyer with the client Qualified Technician, fingerprint, drug but will be useful in later proceedings. For example, it analysis, etc.); may be useful at a bail hearing, may come out if the client gives evidence at trial, or may be used when making  written statements by the accused and submissions on sentence. In addition to its courtroom witnesses; uses, the background information may help the lawyer in  business records such as invoices, etc.; other ways.  experts’ reports (e.g. handwriting If the client is Indigenous, their experiences with inter- examinations); generational trauma from the effects of colonization or residential school may be relevant in making Gladue  photographs, plans, etc.; and submissions or requesting a Gladue report. Bail or sen-  psychiatric or other medical reports. tencing of Indigenous people may be heard in one of BC’s Indigenous Courts (also called “First Nations For some of these documents to be admissible at trial, Courts” or “Gladue courts”). See “First Na- the Crown must give the defendant notice of its intention tions/Indigenous Courts” at aboriginal.legalaid.bc.ca. to produce the document. If notice has not been served, Also, the Native Courtworker Program may be able to defence counsel may not want to alert the Crown to the assist the client with culturally appropriate resources. oversight by requesting copies of the documents. See www.nccabc.ca/justice/native-courtworkers. Some counsel suggest that at the initial interview, coun- If the client’s background includes psychiatric history or sel should explain the charge and give the client a brief mental health issues, the Forensic Psychiatric Services outline of the possible defences to the charge, together Commission provides court-ordered assessments includ- with a request that the client make notes immediately on ing assessments of fitness to stand trial and evaluations everything relevant that occurred. It is particularly im- of criminal responsibility. portant that the client try to recall statements made by or to the police; information about how many police offic- Obtaining particulars, notices and documents will be ers were present (and their names or identification num- dealt with later in these materials as part of preparation bers, if known); names and addresses of other witnesses; for trial. Gather this information early to help you decide and information specific to the charge. Such information whether to represent the client, assess the costs of repre- might include, for instance, the client’s eating and drink- sentation, and give the client a well-informed opinion ing patterns if the charges concern impaired driving, or a about how best to proceed with the matter. history of arguments if the charges involve assaults. Once the lawyer decides to represent the client, it is pru- These notes may help refresh the client’s memory if the dent to prepare a written retainer so that client and law- client is called to testify. yer both know exactly what service is being provided at The issue of conflict of interest requires attention at this what cost. Bonus billing occurs in only the rarest of stage. Generally, it is best to avoid acting for more than criminal cases (see Campney & Murphy v. Arctic Instal- one accused in the same matter. Counsel who interview lations (Victoria) Ltd. (1994), 86 B.C.L.R. (2d) 226 co-accused run the risk, at the very least, of having to (C.A.)). A retainer agreement should also contain provi- withdraw from representing one of them if the respective sions for contingencies, such as non-payment of fees. interests of the co-accused later conflict. Counsel should Lawyers who want to withdraw in a criminal matter also consider whether prior relationships with others in- should be mindful of R. v. Cunningham, 2010 SCC 10, volved in the file, such as victims, creates a conflict. in which the court sets out the circumstances under Counsel must be alive to such potential difficulties from which a lawyer may withdraw from acting for a client. the outset to avoid putting themselves and their clients at When the withdrawal is for non-payment of fees the risk. court may exercise its discretion to refuse to allow the Considering the above information and concerns will withdrawal. There is also an obligation to advise the help a lawyer to decide whether or not to represent a par- court and other parties of your withdrawal: see the BC ticular client. Ideally, the lawyer will take the entire Code, sections 3.7-1 to 3.7-10 and Practice Material: case. In some circumstances, however, lawyers can only Criminal Procedure, §3.27.

Criminal Procedure 7 When the retainer is to be arranged through legal aid, Principle of restraint counsel must be sure that the client has filled out the ap- 493.1 In making a decision under [Part XVI- propriate documents and has been approved for funding. Compelling Appearance of Accused before a Jus- Counsel who intend to act on legal aid retainers must tice and Interim Release] a peace officer, justice have a billing number. Counsel may obtain a billing or judge shall give primary consideration to the number by contacting Legal Aid BC. release of the accused at the earliest reasonable Once the lawyer has gathered all the necessary infor- opportunity and on the least onerous conditions mation, obtained preliminary instructions, decided to that are appropriate in the circumstances, includ- represent the client, and been retained, often the next ing conditions that are reasonably practicable for step is to consider the custody status of the client. the accused to comply with, while taking into account the grounds referred to in subsection [§2.02] Compelling Appearance and Judicial 498(1.1) or 515(10), as the case may be. Interim Release (Bail) This provision reflects the Supreme Court of Canada’s Two issues arise immediately when an individual is al- decision in R. v. Antic, [2017] 1 SCR 509, where the leged to have committed an offence: how to make the court summarized the “ladder principle” of bail: “[T]he accused aware of the charge, and how to compel the ac- ladder principle means ‘that release is favoured at the cused to appear to answer the charge. The bail provi- earliest reasonable opportunity and . . . on the least oner- sions in Part XVI of the Criminal Code are concerned ous grounds’” (Antic at para. 29, citing R. v. Anoussis, with securing attendance of the accused to answer the 2008 QCCQ 8100). See also R. v. Zora, 2020 SCC 14, charge. They should be read in detail. which reiterated the need for restraint, with the default position being bail without conditions. When bail condi- When the police arrest an individual (with or without tions are imposed, they must be necessary, reasonable, warrant) the police will want to ensure that the accused and linked to the grounds of detention under s. 515(10) will attend court to answer the charge. For this purpose, (i.e. securing the accused’s attendance in court, ensuring the police are authorized to release the accused, provided the protection or safety of the public, and maintaining they follow the procedures in the Criminal Code. confidence in the administration of justice). Any bail In some circumstances the court issues a summons to conditions imposed should be the least onerous neces- compel the accused to attend in court to answer the sary to address the risks listed in s. 515(10). charge. If a summons is issued, the accused is not taken Section 493.2 requires that the circumstances of Indige- into custody. nous accused and of accused from vulnerable popula- The following are the processes by which an accused tions be considered in making decisions about interim may initially be compelled to attend court: release or bail: 1. appearance notice (Criminal Code, ss. 496, 497, Aboriginal accused or vulnerable populations 499, 500; Offence Act, s. 39); 493.2 In making a decision under this Part, a 2. undertaking given by the accused to a peace of- peace officer, justice or judge shall give particular ficer (Criminal Code, ss. 498, 499, 501); attention to the circumstances of 3. summons (Criminal Code, ss. 509); (a) Aboriginal accused; and 4. warrant (Criminal Code, ss. 512, 512.1, 512.2, (b) accused who belong to a vulnerable popula- 512.3); or tion that is overrepresented in the criminal justice system and that is disadvantaged in ob- 5. arrest without warrant (Criminal Code, s. 495). taining release under this Part. Generally, police or court authorities prepare these documents without lawyers intervening. The documents [§2.03] Release by Police should be examined for errors: non-compliance with the forms prescribed in Part XVI may mean that jurisdiction Section 498 of the Criminal Code sets out the powers of is lost. However, jurisdiction can usually be regained by a peace officer to release a person who has been arrested issuing a new process. Section 485 is a broad curative without a warrant for an offence other than one listed in provision with respect to questions of loss of s. 469 (which lists certain serious offences including jurisdiction. murder, treason and war crimes). The peace officer must, as soon as practicable, release the person from custody if The recent amendments streamlined the means by which (a) the peace officer intends to compel the person’s ap- an accused could be compelled to attend court. The pearance by issuing a summons, (b) the peace officer amendments also legislate a principle of restraint for issues an appearance notice to the person, or (c) the per- peace officers and courts in making decisions about re- son gives an undertaking to the peace officer (s. 498(1)). lease or bail:

Criminal Procedure 8 This mandatory release is subject to s. 498(1.1), that is, er specified person, at the officer’s or specified the peace officer must not release the person if the peace person’s request during those hours; officer believes on reasonable grounds that the detention (h) abstain from possessing a firearm, crossbow, is necessary in the public interest considering all of the prohibited weapon, restricted weapon, prohibit- circumstances, including because release would impair ed device, ammunition, prohibited ammunition the ability to identify the person arrested, the ability to or explosive substance, and surrender those that preserve evidence relating to the offence, or the ability to are in their possession to the peace officer; ensure the safety of a victim or witness to the offence. The mandatory release provisions also do not apply if (i) promise to pay an amount specified in the under- the offence is one described in s. 503(3). taking, which shall not be more than $500, if they fail to comply with any condition of the un- Also, a peace officer may release an individual arrested dertaking; with a warrant for an offence other than one listed in s. 469, if the peace officer issues an appearance notice to (j) deposit, with the peace officer specified in the the person or the person gives an undertaking to the undertaking, money or other valuable security peace officer (s. 499). The warrant must be endorsed in whose value does not exceed $500 if, at the time order for the police to release the accused. The required of giving the undertaking, the accused is not or- contents of an appearance notice are set out in s. 500 and dinarily resident in the province or does not or- the required contents of an undertaking are set out in dinarily reside within 200 kilometres of the s. 501. Both release procedures must compel the accused place in which they are in custody; and to appear in court (s. 500(1)(c); s. 501(2)). The appear- (k) comply with any other specified condition for ance notice or undertaking may also require the accused ensuring the safety and security of any victim of to attend for fingerprinting and photographing pursuant or witness to the offence. to the Identification of Criminals Act, R.S.C. 1985, c. I- 1. Section 502 provides mechanisms for modifying the conditions of the undertaking. The undertaking may be The Criminal Code authorizes the police to release indi- varied at any time with the written consent of the prose- viduals on an undertaking taken before a peace officer; cution and the accused. In the absence of consent be- see ss. 499(2). The intent of these sections is to expedite tween the prosecution and the accused, either may apply the release of accused individuals. The recent amend- to a justice to replace the undertaking. If the prosecution ments increase the types of conditions peace officers can is making the application, the prosecution must give impose on accused persons. three days’ notice to the accused. The undertaking must include a condition that the ac- When an individual is arrested and detained by police at cused attend court at the time and place stated in the un- a time when the court is not sitting (weekends, evenings, dertaking. The additional potential conditions that can be or holidays), bail applications are addressed through the imposed on the accused by an undertaking include the Justice Centre by Judicial Justices (“JJs,” addressed in following (s. 501(3)): court as “your worship”). Crown counsel in Vancouver (a) report at specified times to the peace officer or are available outside of court sitting hours to participate other specified persons; in bail hearings. In these instances, conference calls are set up with the JJ to address bail. Crown counsel or the (b) remain within a specified territorial jurisdiction; accused can apply to adjourn the hearing to the next (c) notify the peace officer or other specified person court date, or the Crown may seek to remand the accused of any change in their address, employment or to custody pursuant to s. 516, for no more than three occupation; clear days (unless the accused consents to longer). See the Provincial Court Practice Direction, CRIM 05 (d) abstain from communicating, directly or indi- Hearing of Bail Applications (26 November 2019). rectly, with any victim, witness or other person identified in the undertaking, except in accord- [§2.04] Release by the Court ance with any specified conditions; (e) abstain from going to any specified place or en- 1. Objectives tering any geographic area related to any person Sometimes the accused will not be released by the referred to in paragraph (d), except in accord- peace officer and will be brought before the court ance with any specified conditions; for a hearing. The hearing determines judicial (f) deposit all their passports with the peace officer interim release and is referred to as a “bail hearing” or other specified person; or a “show cause hearing.” (g) reside at a specified address, be at that address at The purpose of a bail hearing is to determine if con- specified hours and present themselves at the en- tinued detention of the accused is justified. trance of that residence to a peace officer or oth-

Criminal Procedure 9 Generally, the presumption is against detention, and (c) notify a peace officer or other person desig- the Crown must show cause why continued deten- nated in the order of any change in their ad- tion is necessary according to the grounds listed in dress, employment or occupation; s. 515(10), that is, to ensure that the accused will at- (d) abstain from communicating, directly or intend court, to protect the public, or to maintain con- directly, with any victim, witness or other fidence in the administration of justice. If the person identified in the order, except in ac- Crown cannot satisfy the onus on at least one cordance with any specified conditions that ground, the accused is entitled to release on reason- the justice considers necessary; able bail, and the outcome of the bail hearing is restricted to how the accused is to be released (on (e) abstain from going to any place or entering what conditions, if any). any geographic area specified in the order, except in accordance with any specified However, for certain offences, the onus is on the conditions that the justice considers neces- accused to show why the grounds do not justify de- sary; tention—this applies to offences listed in s. 469 and offences listed under s. 515(6), described later in (f) deposit all their passports as specified in the this chapter. order; (g) comply with any other specified condition 2. Procedure at the Bail Hearing that the justice considers necessary to ensure The Crown can consent to release on certain terms the safety and security of any victim of or which can be agreed upon with defence. Part XVI witness to the offence; and uses the term “justice” to describe the individual (h) comply with any other reasonable conditions presiding at a bail hearing. In British Columbia, a specified in the order that the justice consid- justice can be a Judicial Justice, a Provincial Court ers desirable. judge, a Supreme Court judge, or a judge of the Court of Appeal (Provincial Court Act, s. 30(3)). The order may also include any of the following (s. 515(2)): The justice presiding at a bail hearing is typically a Provincial Court judge, unless the hearing is (a) an indication that a release order does not outside regular court hours. However, only a include any financial obligations; Supreme Court judge has jurisdiction to grant bail on offences listed in s. 469 (which include certain (b) the accused’s promise to pay a specified serious charges such as murder, treason, and crimes amount if they fail to comply with a condi- against humanity). On these charges, the accused is tion of the order; detained under s. 515(11), bail must be sought by (c) the obligation to have one or more sureties, petition to the Supreme Court (s. 522), and the onus with or without the accused’s promise to is on the accused to show why detention is not pay a specified amount if they fail to com- justified. ply with a condition of the order; When the accused is charged with an offence other (d) the obligation to deposit money or other than one listed in s. 469, the judge presiding at the bail hearing is governed by s. 515(1). The accused valuable security in a specified amount or (who does not plead guilty) will be released without value, with or without the accused’s prom- conditions, unless the Crown shows cause why ise to pay a specified amount if they fail to there should be conditions on release. If the judge comply with a condition of the order; or does not release the accused without conditions un- (e) if the accused is not ordinarily a resident in der s. 515(1), then the accused will be released with the province in which they are in custody, conditions under s. 515(2), unless the Crown shows or does not ordinarily live within 200 kilo- cause why detention is justified. metres of the place in which they are in Release Orders custody, the obligation to deposit money or Under s. 515(2), the judge making a release order other valuable security in a specified with conditions may order that the accused comply amount or value, with or without the ac- with any of the following conditions listed in cused’s promise to pay a specified amount s. 515(4): by the justice if they fail to comply with a condition of the order and with or without (a) report at specified times to a peace officer, sureties. or other person, designated in the order; (b) remain within a specified territorial jurisdiction;

Criminal Procedure 10 The Crown has the onus of proving each additional a criminal offence or interfere with the condition under 2(b) to (e) is necessary. Section administration of justice; and 515(2.01) provides: (c) the tertiary grounds, where the detention is The justice shall not make an order containing necessary in order to maintain confidence in the conditions referred to in one of the para- the administration of justice, having regard to graphs (2)(b) to (e) unless the prosecution all the circumstances, including: shows cause why an order containing the con- (i) the apparent strength of the prosecu- ditions referred to in the preceding paragraphs tion’s case; for any less onerous form of release would be inadequate. (ii) the gravity of the offence; Any condition must relate to ensuring the attend- (iii) the circumstances surrounding its com- ance of the accused, preventing further offences or mission including whether a firearm was ensuring there is no interference with the course of used; and justice, or the safety and security of any victim or (iv) the potential for a lengthy term of im- witness. prisonment or, in an offence that in- Firearms prohibitions are mandatory bail conditions volves a firearm, a minimum punish- for certain offences (s. 515(4.1)). With offences ment for a term of three years or more. listed in s. 515(4.3) it is also mandatory for the See R. v. St. Cloud, 2015 SCC 27, for the frame- court to consider the safety and security of victims work of the tertiary grounds. Though it is only and witnesses and determine if no-communication listed in the tertiary grounds under s. 515(10)(c), or other conditions should be included (s. 515(4.2)). many judges consider the strength of the Crown’s The release order is in Form 11 and includes the case in determining an appropriate form of bail. conditions that apply to the accused, consequences As noted earlier in this chapter, the onus is usually for non-compliance, and any financial obligations on the Crown to show why the continued detention included in the order (such as a promise to pay a of the accused is necessary. However, the onus is specified amount if the accused fails to comply with on the accused to show why they should not be de- the conditions). The Form 11 is signed by the ac- tained in the following “reverse onus” situations cused; any surety (if applicable); and the judge, jus- under s. 515(6): tice, or clerk of the court. (a) the accused is charged with an indictable of- As stated in the Form 11, the conditions of the re- fence other than an offence listed in s. 469: lease order may be varied with the written consent of the accused, Crown, and any sureties (s. 519.1), (i) alleged to have occurred while the ac- or the accused or Crown may apply to the court to cused was at large after being released have a condition in the release order cancelled or for another indictable offence; changed. (ii) as a participant in a criminal Counsel should discuss appropriate bail conditions organization; before the bail hearing, because most judges are (iii) that is a terrorism offence; sympathetic to joint bail submissions, and consent releases can be worked out with Crown. The court (iv) that is an offence under s. 16(1) or (2), has wide discretion as to what evidence or circum- 17(1), 19(1), 20(1) or 22(1) of the Secu- stances to consider (s. 518(1)(a), as discussed in R. rity of Information Act; v. Cheung, 2016 BCCA 221). (v) that is an offence under certain other Detention sections of the Security of Information Act committed in relation to an offence Under s. 515(10), the detention of an accused is jus- referred to in (iv); tified only on the following grounds: (vi) that is an offence under s. 99, 100 or 103 (a) the primary grounds, where the detention is of the Criminal Code; necessary to ensure the accused’s attendance in court; (vii) that is an offence under certain sections and is alleged to have been committed (b) the secondary grounds, where the detention is with a firearm; or necessary for the protection or safety of the public, including any victim or witness, (viii) that is alleged to involve a firearm or having regard to all the circumstances other listed item while the accused was including any substantial likelihood that the under a prohibition order within the accused will, if released from custody, commit meaning of s. 84(1);

Criminal Procedure 11 (b) the accused is charged with an indictable of- Before making submissions at the bail hearing, it is fence other than an offence listed in s. 469, important to do as much groundwork as possible to and the accused is not ordinarily a resident in assist the court and present a workable alternative Canada; to detention. For example, make telephone calls to determine if the client is acceptable for bail super- (b.1) the accused is charged with an offence in the vision, suitable (where applicable) for the Native commission of which violence was allegedly Courtworkers services, able to reside at a particular used, threatened or attempted against their place, etc. Also canvass with the client whether al- intimate partner, and the accused has been ternatives such as curfews or area restrictions are previously convicted of an offence in the acceptable (will they conflict with work or resi- commission of which violence was used, dence?) and investigate whether acceptable sureties threatened or attempted against any intimate are available. If the client has mental health issues partner of theirs; you may wish to consult the local Forensic Outpa- (c) the accused is charged with an offence under tient Client as to what services they might provide. ss. 145(2)–(5) (e.g. failure to attend court, It may also be useful to have family or friends of failure to comply with an appearance notice the accused in court to reassure the court that re- or summons, failure to comply with an un- sponsible people are concerned about the accused dertaking, failure to comply with a condition and able to provide support. Client information under a release order, etc.) that is alleged to forms may also be useful in interviewing and have been committed while they were at speaking to bail. large after being released; or Especially in a serious case, it may be useful to file (d) the accused is charged with an offence pun- letters at the bail hearing to establish that the ac- ishable by imprisonment for life under any of cused has a place to live, a place to work, and a ss. 5–7 of the Controlled Drugs and Sub- good reputation in the community. stances Act or conspiring to commit such an Even if the accused is already detained on other offence. charges, or is in custody serving a sentence, they In reverse onus situations it is customary for the may seek bail on the new charge under s. 515. Of Crown to proceed first, although the court can re- course, if bail is granted it does not become effec- quire the defence to proceed first. The Crown usu- tive until detention on the other charges ends. ally outlines the facts of the most recent alleged of- When a new Information is sworn charging an ac- fence, the accused’s record of criminal convictions, cused with the same offence as the original Infor- and the outstanding charges that give rise to the re- mation or an included offence (additional charges verse onus, and then indicates the Crown’s position may be added), the bail order made on the original on bail. Defence counsel replies to the allegations Information continues to apply to the new Infor- of the Crown regarding the circumstances of the mation under s. 523(1.1). In such circumstances, ei- present offence and submits that, for the reasons ther the Crown or defence may apply under outlined, the accused has shown cause why further s. 523(2)(c), without the consent of the other party, detention in custody is not required. to vary the original order. The release order may al- Defence counsel’s argument in a bail hearing so be varied with the written consent of the ac- should be that the accused’s detention is not neces- cused, Crown, and any sureties (s. 519.1). sary to ensure the accused’s attendance in court, to On cases that are likely to attract some notoriety, prevent the commission of further offences, or to counsel should consider applying under s. 517 for maintain confidence in the administration of justice. an order prohibiting publication of the evidence Counsel should organize the facts to support the ar- taken at a bail hearing. gument. If it appears that Crown counsel is only relying on one ground, defence counsel might ask the A more detailed list of relevant factors for both reg- judge, “Do you wish me to argue on the other ular and reverse onus show cause bail hearings ap- grounds, or are you satisfied that my client is not pears at §2.12 of this chapter. Although the check- likely to fail to appear?” The judge may then indi- list is designed for Crown counsel making submis- cate that the court’s only concern is on a specific sions at the bail hearing, the factors outlined are ground and counsel can confine argument to that is- equally pertinent to defence counsel and of interest sue. Remember that the best strategy for obtaining to the judge at the bail hearing. bail is to present a realistic alternative to detention, and that strict bail conditions are preferable to no 3. Evidence bail. Sections 518(1)(a)–(e) set out the material on which the justice may base a decision at a bail hearing. The justice may receive and base the decision on

Criminal Procedure 12 evidence considered “credible or trustworthy” by [§2.06] Charges in Other Jurisdictions the justice in the circumstances of each case. This includes evidence ordinarily inadmissible at trial An accused may be arrested without warrant on the basis (such as hearsay) so long as the other party has a that a peace officer has information that there is an out- fair opportunity to correct or contradict it (Re standing warrant for an indictable offence in another Powers v. R. (1972), 9 C.C.C. (2d) 533 (Ont. province, or in another part of British Columbia. If the H.C.)). Both the common practice and the formal alleged offence took place outside the province but with- requirements for “evidence” on bail hearings are set in Canada, the justice will usually remand the accused in out in R. v. Woo (1994), 90 C.C.C. (3d) 404 custody for six days under s. 503(3) to await the execu- (B.C.S.C.). tion of the warrant and the arrival of an escort of peace officers from the other province. If the escort of peace The evidentiary burden upon the Crown during a officers has not arrived by the sixth day, the accused bail hearing is the balance of probabilities (R. v. must be released. In this situation, the original warrant Julian (1972), 20 C.R.N.S. 227 (N.S.S.C.)). The has never been executed or cancelled. The warrant is still burden is on the accused in reverse onus situations. active, and the accused may be arrested again later. [§2.05] Bench Warrants, Judicial Referral As an alternative to a six-day remand, the accused may Hearings, and s. 524 Hearings be released pending execution of the warrant if the prosecutor consents under s. 503(3.1). Counsel may want to An accused who succeeds in obtaining initial judicial contact the originating jurisdiction to discuss a consent interim release may (and often does) return to custody release. on the charge. The most common situation is when an When dealing with an outstanding warrant from another accused fails to attend court and a bench warrant is is- area in the province, most jurisdictions grant a three day sued under ss. 512, 512.1 or 512.2. adjournment to the prosecution under s. 516(1) to allow Another situation that commonly arises is that an ac- a police escort to attend to execute the warrant and cused breaches conditions of their release or commits transport the accused to the issuing jurisdiction (see R. v. other administration of justice offences. Recent amend- Ragan (1974), 21 C.C.C. (2d) 115 (B.C. Prov. Ct.)). ments to the Criminal Code introduced a new process, Provincial Court judges increasingly are exercising their the judicial referral hearing, to address these circum- province-wide jurisdiction under the Provincial Court stances. The judicial referral hearing is intended to re- Act to conduct show cause hearings on offences from duce the number of prosecutions for certain administra- other areas of the province. This eliminates the need to tion of justice offences. As an alternative to laying transport the accused before the bail hearing but reduces charges, if a peace officer has reasonable grounds to be- local involvement. lieve that the accused has failed to comply with a sum- The justice may allow the accused to appear at the show mons, appearance notice, undertaking or release order, cause by telephone or video conferencing (s. 515(2.2)). or to attend court as required, the peace officer may issue This procedure offers an alternative to transporting the an appearance notice to the accused to appear at a judi- accused. Consent of all parties is required if evidence is cial referral hearing under s. 523.1 (s. 496). At the judi- to be taken from a witness and the accused cannot ap- cial referral hearing, if the judge or justice finds that the pear by video conferencing (s. 515(2.3)). accused failed to comply with the summons, appearance notice, etc., but that the failure did not cause harm to a [§2.07] Sureties victim, the judge or justice can review the accused’s release conditions and take no action, release the accused The primary obligations of a surety are to ensure that the on new conditions, or detain the accused. accused appears in court for the trial or other appearance Where there are reasonable grounds to believe an ac- and keeps out of trouble. A surety’s responsibilities are cused has contravened (or is about to contravene) a outlined under ss. 515.1(1) and 764. summons, appearance notice or undertaking, or has If a judge or justice directs release of an accused with committed an indictable offence while on release, a one or more sufficient sureties, those sureties must be peace officer can arrest the accused without a warrant acceptable to the court. A person is typically unaccepta- under s. 495.1 for the purpose of bringing them before a ble as a surety if the person: judge or justice to be dealt with under s. 524. A justice may also issue a warrant on this basis under s. 512.3 to (a) has a previous criminal record; require the accused to appear before a justice under (b) is acting as a surety for someone else; s. 524. At the s. 524 hearing, the Crown will seek to have the accused’s earlier release cancelled under (c) is charged with a criminal offence; s. 524(3). (d) is a co-accused;

Criminal Procedure 13 (e) is being indemnified for acting as a surety (e.g. a [§2.08] Bail Variations in Provincial Court bail bondsperson); In limited circumstances, the original order may be re- (f) does not have sufficient funds, in the opinion of visited and modified in Provincial Court. In practice, the justice, to satisfy any order should the ac- very few, if any, Provincial Court judges will interfere cused default on their appearance; or with the order of another judge, unless there has been a (g) is the lawyer for the accused (R. v. Orme (1980), major change in circumstances. Even then, some Provin- 4 W.C.B. 357 (Ont. Co. Ct)). cial Court judges will request that the matter go back before the judge who presided at the bail hearing. While the determination of a suitable surety is usually left to the justice of the peace, s. 515(2.1) allows the Non-consensual bail variations are possible in two situa- judge who makes the bail order to name particular per- tions. First, if the accused is before the Provincial Court sons as sureties in the bail order. judge before whom the accused is being or is to be tried in the future, that judge can change bail under Before a person can be named as a surety they must sign s. 523(2)(a). Second, a Provincial Court judge can a declaration in Form 12. The declaration includes such change bail once the preliminary inquiry is completed information as the surety’s contact information and their under s. 523(2)(b). In each of these instances, the prose- acknowledgement that they understand the role and re- cutor does not need to consent. sponsibilities of a surety (see s. 515.1(1)). Exceptions to this requirement are listed under s. 515(2). If Crown counsel consents to a bail variation, then s. 523(2)(c) applies and the Provincial Court judge who When the accused later wants to change sureties, made the original order, or any other judge, may make s. 767.1 allows the court to substitute another suitable an order. Most bail variations in the Provincial Court person for the original surety without taking the accused occur under this section. Some prosecutors will consent into custody again. Otherwise, when any change is made to rehearing bail but oppose the change that is sought. If to a surety bail, the accused will be remanded in custody the prosecution, any sureties, and the accused consent in until the surety agrees to accept the altered bail. Prudent writing to the variation of the bail, then s. 519.1 permits counsel will ensure someone arranges easy contact with a written variation without any court appearance. the surety whenever a bail change is likely. When an application is made under s. 523 and the bail is Section 766(1) gives power to a surety to be relieved of varied, then, subject to the Lee case below, no bail re- obligations under a recognizance by obtaining an order view on that order can be taken to the Supreme Court: R. from a justice of the peace to have the accused arrested. v. Archambeault (1980), 20 C.R. (3d) 157 (B.C.S.C.). If Defence counsel should be extremely cautious about no variance is made in the original order, further bail contacting potential sureties. Defence counsel must review can be taken in the Supreme Court. Consequent- make it clear they are representing the accused and ly, defence counsel applying under s. 523 may want to should not pressure potential sureties nor guarantee that suggest to the presiding judge that, if the original bail the accused will comply with the conditions of release. will not be substantially changed, the presiding judge Some counsel refuse to contact potential sureties, while exercise discretion not to deal with the original bail, ra- others limit their contact to a message that the accused ther than substituting the judge’s own order and poten- has asked them to telephone and make the request. tially ousting the jurisdiction of a higher court to review Counsel should warn the surety of the consequences bail. In R. v. Lee (1982), 69 C.C.C. (2d) 190 (B.C.S.C.), should the accused breach their recognizance, and em- the court held that Archambeault does not apply if the phasize that the decision is the surety’s alone. Prudent accused has been denied the right to reasonable bail un- counsel will suggest to the potential surety that the sure- der s. 11(e) of the Charter and that under s. 24 of the ty obtain independent legal advice. Charter a Supreme Court judge may vary the bail order. Note also the following BC Code provisions with respect A judge cannot vary a bail order on the judge’s own mo- to a lawyer acting as a surety: tion, although this is sometimes unlawfully done after committal on a preliminary hearing. The judge can only Judicial interim release order the accused into custody “upon cause being 3.4-40 A lawyer must not act as a surety shown” (R. v. Braithwaite (1980), 57 C.C.C. (2d) 351 for, deposit money or other valuable securi- (N.S.S.C.-A.D.)). ty for, or act in a supervisory capacity to an accused person for whom the lawyer acts. [§2.09] Bail Reviews in Supreme Court 3.4-41 A lawyer may act as a surety for, The accused or Crown may apply to have the original deposit money or other valuable security for or act in a supervisory capacity to an bail order reviewed under ss. 520 and 521, on applica- accused who is in a family relationship tion to the Supreme Court. A bail review is like an ap- with the lawyer when the accused is repre- peal of the original bail order. sented by the lawyer’s partner or associate.

Criminal Procedure 14 On a bail review the onus is on the appellant to show any initial judicial interim release hearing and from any that the judge who fixed the original bail made an error subsequent review (Myers at para. 48). in law or principle, that circumstances have changed, or Not all accused in custody are eligible for a s. 525 re- that it would be unjust not to order release (R. v. Vukel- view hearing. In Myers, the court expanded those eligi- ich (1993), 32 B.C.A.C. 81). ble for a review hearing to include accused persons who The accused also can bring an application for certiorari have consented to remain in custody or chosen not to to quash a bail order (Re Keenan v. The Queen (1979), have a bail hearing in the first instance. In these instanc- 57 C.C.C. (2d) 267 (Que. C.A.)). This procedure permits es, the judge is required to conduct the full bail hearing a further appeal to the Court of Appeal. “from the ground up” in accordance with the “ladder principle” articulated in Antic (see §2.02), taking into Applications are also the possible under the Charter, as account the time the accused has already spent in pre- previously noted. trial custody (Myers at para. 56). As well, the phrase The Supreme Court cannot review a bail decision made “other narrow circumstances” referred to in Myers has by a judge under s. 522 with respect an offence listed in since been interpreted to allow an accused to have a s. 469; such decisions must be reviewed under s. 680 by s. 525 hearing where bail was granted but not yet per- the Court of Appeal. fected: R. v. Khafisov, 2019 BCSC 1088. However, those in custody during a trial or while awaiting sentenc- [§2.10] Section 525 Detention Reviews2 ing continue to be ineligible for reviews under s. 525. In response to Myers, the BC Supreme Court instituted a When an accused has been charged with an offence other comprehensive interim Practice Direction CPD-4 on than an offence listed in s. 469 and has been in custody s. 525 hearings. Legal Aid BC has also published infor- for 90 days, the court must review bail in order to deter- mation for defence counsel relating to s. 525 hearings. mine whether the accused should be released.3 The review under s. 525 is automatic—the accused is not re- [§2.11] Bail Review Documents (ss. 520 quired to make such an application. and 521) Section 525 places an obligation on the “jailer” to apply for the detention review hearing immediately upon the A bail review may be taken if the accused is detained or expiration of 90 days following the day on which the cannot make the bail that has been set. Although a re- accused was initially taken before a justice under s. 503. view by the Supreme Court may be taken anywhere in Since the s. 525 hearing is automatic, it also imposes a British Columbia (s. 520), this practice is discouraged. mandatory obligation on the judge to fix a date at the The general rule is that applications should be brought in earliest opportunity. the location where the offence occurred (see Criminal Rules of the Supreme Court of British Columbia, Rule In R. v. Myers, 2019 SCC 18, the Supreme Court of 2(4)). Exceptions will be considered when there are valid Canada held that the “overarching question” for a re- grounds for bringing the application elsewhere, particu- viewing judge to consider is whether “the continued de- larly when Crown and defence counsel have agreed to a tention of the accused in custody [is] justified within the change of location. Frequently, urgency and the availa- meaning of s. 515(10).” The accused is not required to bility of a judge are the deciding factors in determining show that there has been “unreasonable delay” in pro- the appropriate venue for a bail review. ceeding to trial in order to have a review hearing, although it is a factor that can be considered by the review- At least two clear days’ notice must be given to Crown ing judge. counsel. The Crown will frequently try to accommodate the schedule of defence counsel, and some reviews have The hearing is a “review” of the detention. As such, def- been set down on only a few hours’ notice. Short service erence will be afforded for any findings of fact made by is permitted by s. 520(2). the initial decision-maker. However, the reviewing judge is entitled to consider the lapse of time and any other Once a review has been taken, a further review is pre- relevant factors and can receive any evidence “consid- cluded for 30 days (s. 520(8)). ered credible or trustworthy.” The reviewing judge can There are five documents required on a s. 520 and 521 also rely upon the transcript, exhibits and reasons from bail review.

1. Notice of Application

The original plus one copy must be filed in the reg- 2 This section was kindly updated by Baljinder Girn, Public Prose- istry. There also must be a copy each for Crown and cution Service of Canada in November 2019. defence, for a total of four. When filing bail review 3 Prior to the coming into force of Criminal Code amendments (on applications, copies of all Informations relating to December 18, 2019), the threshold was 30 days for summary conviction offences; the amendments replaced this threshold with a 90- the charges for which the bail review is sought must day threshold for all offences. be filed along with the material for the application.

Criminal Procedure 15 See Applications for Bail Reviews (Supreme Court courtroom, find out where the other party will be Practice Direction, 22 September 2005), available at over the next few hours so that you may obtain their www.bccourts.ca/supreme_court/practice_and_proc signature. The order must state where bail is to be edure/. An Information can be made an exhibit to perfected. Discuss this in detail with the registry the affidavit of the accused. The facts upon which staff. If you want to be safe, you can specify in the the application is based must be in numbered para- order that bail may be perfected in either the Pro- graphs. Usually, these are a summary of the infor- vincial Court registry or the Supreme Court regis- mation in the affidavit of the accused or another try. person or both. Finally, the application must have details of the documents supporting it—the affida- [§2.12] Information for Bail Hearings vits. The following is a suggested list of information that 2. Notice to Person(s) Served should be gathered by the Crown for bail hearings. The list is by no means exhaustive, nor will all the sugges- The original plus one copy must be filed in the reg- tions be relevant to each bail hearing. Although written istry. There also must be a copy each for Crown and from the prosecution perspective, it emphasizes areas of defence, for a total of four. This document is filed concern to the court that are frequently addressed by and served with the application. both counsel. Defence counsel will prepare for the show cause hearing by taking a more positive approach to the 3. Affidavit in Support enumerated factors. The list is only intended to provide The original plus one copy must be filed in the reg- some guidance. istry. There also must be a copy each for Crown and defence, for a total of four. This document 1. Attendance should be filed and served with the application, alt- Section 515(10)(a)—detention necessary to ensure hough this is often difficult when the accused is in attendance in court. This is sometimes referred to as custody, or when a friend or relative is swearing an the “primary” ground of detention. Relevant evi- affidavit in support and is not available to swear the dence could include any of the following: affidavit before the documents are filed. Affidavits that are anticipated should be referred to in the ap- (a) age; plication as “such further material as counsel may (b) education; advise.” The Crown usually does not object to documents filed later, provided the Crown received an (c) place of residence; accurate unfiled copy earlier. The affidavit should be in the usual form with information in numbered (d) citizenship (is the accused a Canadian citi- paragraphs. (See the Supreme Court Civil Rules zen, and if not, what roots has the accused and the Practice Material: Civil for general rules in the community, and should their passport regarding affidavits.) be seized); (e) assets in the community (ownership or 4. Transcript of Provincial Court Hearing rental of a home, general financial assets); The original must be filed in the registry. There (f) potential consequences (or length of jail must be a copy each for Crown and defence, for a term) if convicted of the offence charged; total of three. The transcript should be ordered immediately after the bail hearing to avoid delays. On (g) criminal record: legal aid files it is necessary to get authority from . outstanding charges under s. 145, Legal Aid BC before bringing the application and especially before ordering the transcript. This au- . previous convictions for failing to ap- thority should be requested immediately, because pear or breach of probation; there may be some delay. (h) addiction to alcohol, drugs and whether attempts have been made at treatment; 5. Order After Bail Review (i) employment status; If the application is successful, a fifth document is prepared. The successful party or the registry draws (j) present environment: the order if one is necessary. Attend the registry to . friends and relatives in the community, determine if an order is necessary to secure the re- . whether living with spouse or family, lease. If counsel must prepare an order, get instruc- and tions from the registry staff about the appropriate language for the order. The opposing party must . whether associating with known approve the order as to form. Before you leave the criminals;

Criminal Procedure 16 (k) character witnesses; (e) impediments to investigation—has the accused threatened witnesses or tried to pre- (l) circumstances of apprehension: vent a police investigation; . did the accused surrender into custody, and if not, why not; (f) deliberation—whether the crime the accused is charged with involved planning; . was the accused fleeing from prosecution in this or another jurisdiction; (g) risk of loss—would releasing the accused present a significant risk to property, in- . was the accused in breach of probation cluding risks that counterfeit money could or parole; be distributed, proceeds of crime could be (m) distance from the accused’s residence to laundered, or evidence could be destroyed; the court; and and (n) history of the accused complying with past (h) any other outstanding charges. bail supervision orders. 3. Confidence in the Administration of Justice 2. Protection of the Public Section 515(10)(c)—detention to maintain confi- Section 515(10)(b)—detention for the protection or dence in the administration of justice. This is some- safety of the public. This is sometimes referred to as times referred to as the “tertiary” ground of deten- the “secondary” ground of detention. Relevant evi- tion. Relevant evidence could include any of the dence could include any of the following: following: (a) the accused’s criminal record: (a) the apparent strength of the prosecution’s case; . how long since the last offence, how similar it is to the current charge and (b) the gravity of the offence; whether it suggests a pattern; (c) the circumstances surrounding the commis- . circumstances of past offences may not sion of the offence, including whether a be evident from the record, so get as firearm was used; and much information as possible (for ex- (d) the fact that the accused is liable for a po- ample, the record may identify assault tentially lengthy term of imprisonment, or but not the severity of the offence or where the offence involves a firearm a the relationship to the victim, etc.); mandatory minimum punishment of im- (b) circumstances of the current offence: prisonment of a term of three years or more. . violence—whether the accused has a history of violence and, if so, whether Up-to-date criminal records should be secured for the it is associated with alcohol or drugs; bail hearing. Where the accused is on parole or probation, these authorities should be consulted for infor- . victims—whether alleged victims were mation about whether the accused has been living up to known to the accused or were random the conditions of their parole, probation, etc. strangers; and . property—whether the alleged offence [§2.13] Estreatment Procedures includes property theft or damage, and if so, the amount involved and whether Part XXV of the Criminal Code governs estreatment the property was recovered; proceedings that may be taken by the Crown against the principal (i.e. the accused) or the sureties (or both) if the (c) the accused’s known associations: accused has defaulted on a recognizance. The judge . is the accused a leader of a peer group hears the application by the Crown for an order against or known to influence potential offend- the principal or sureties to make them judgment debtors ers who pose a risk in the community; to the Crown under s. 771(2). The judge will hear first from the Crown regarding the accused’s failure to appear . does the accused’s detention affect the at one or more appearances. The judge will then hear rate of serious crime in the community; from the principal as to the reason for the failure to ap- (d) prior releases—if the accused was previ- pear, and from the sureties as to what efforts they made ously released, did the accused stay out of to ensure the accused’s appearance. The factors the court trouble; considers in determining whether or not to grant the order are set out in R. v. Sahota (1979), 9 B.C.L.R. 385 (S.C.). Sureties should attend estreatment hearings

Criminal Procedure 17 because judges are frequently sympathetic to defences will address the fitness to stand trial criteria in s. 2 by the surety and may return all or part of the bail. This of the Criminal Code. is especially true if some efforts were made by the surety Section 672.21 of the Criminal Code deals with to get the accused to appear in court. protected statements. A “protected statement” is a [§2.14] Mental Disorder statement made by an accused during the course of an assessment, or during the course of treatment directed by a disposition, to the person carrying out 1. Introduction the assessment or disposition, or to any person act- This portion of this chapter is simply an overview ing under that person’s direction. The limited pur- of a very complex area of criminal procedure and poses for which such a statement may be used are law. While dealt with as a preliminary matter here, set out in s. 672.21(3). if mental disorder is an issue at all, it may remain an issue throughout the trial process. Further, de- 2. Fitness to Stand Trial pending on where one is in the trial process, differ- After an examination by a doctor (usually a general ent aspects need to be considered. practitioner), Crown counsel reviews the doctor’s An accused who has a mental illness may be a per- report. If the doctor is of the opinion that the ac- son who is: cused is fit to stand trial, the matter proceeds. If, however, the doctor is of the opinion that the ac-  not “criminally responsible” as defined in cused is unfit to stand trial, Crown counsel or de- s. 16 of the Criminal Code; fence counsel may apply to have the court order an  “unfit to stand trial” as defined in s. 2 of the assessment under s. 672.11. Alternatively, the Criminal Code; or Crown may seek to remand the accused in custody under s. 516. A doctor (usually a psychiatrist) may  involuntarily admissible to a health unit as see the accused during the remand period and give a person with a mental disorder under s. 22 evidence at a subsequent fitness hearing, should one of the Mental Health Act. occur. Since the legal test for each of these categories is The definition of “unfit to stand trial” is set out in different, such an accused may fall under one, all or s. 2 of the Criminal Code: none of these categories. “unfit to stand trial” means unable on ac- Mental health issues may become important at any count of mental disorder to conduct a de- of the following stages: fence at any stage of the proceedings before (a) on the initial appearance of the accused in a verdict is rendered or to instruct counsel the Provincial Court for the bail hearing or to do so, and, in particular, unable on ac- the initial appearance in a trial court; count of mental disorder to (b) on the return of an accused after an assess- (a) understand the nature or the ment made pursuant to an order under object of the proceedings; s. 672.11 of the Criminal Code, or after a (b) understand the possible con- finding of fitness by a Review Board under sequences of the proceedings; s. 672.48; or (c) at any time during the preliminary hearing (c) communicate with counsel. or trial when the issue of mental disorder or fitness to stand trial is raised; and The core question that must be addressed in any fitness assessment is whether, if found unfit, an ac- (d) at any time where there is evidence that the cused can be rendered fit, within 60 days, through a accused had a mental disorder at the time course of treatment (an assessment report may also of the offence. address the issue). When observations of the behaviour of the accused An assessment will normally take place over a pe- or circumstances of the alleged offence indicate that riod of five days (travel days are not counted), but the accused might be a person with a mental with the consent of the accused, the assessment or- disorder, the police officers involved will so advise der may be continued in force for up to 30 days. Crown counsel. As a result of this, or on Crown counsel’s own initiative after a review of the Regardless of the time allowed, assessment orders circumstances of the offence, Crown counsel may may take place on either an outpatient or inpatient ask a doctor to examine the accused (see basis. It is important to note that the Criminal Code s. 672.16(1), which contemplates the availability of contains a presumption against custody during the a doctor’s report). In most cases, the doctor’s report assessment period, unless the court is shown cause

Criminal Procedure 18 why custody of the accused is necessary responsibility . . . until the contrary is proved on the (s. 672.16). Note also that the assessment order balance of probabilities.” “Mental disorder” is cannot direct the accused to undergo treatment defined in s. 2 of the Criminal Code as a “disease of (s. 672.19). Treatment may, however, be given the mind.” under the Mental Health Act while the accused is Under s. 16(1), the test is whether the accused has a being assessed, if other prerequisites are met. No disease of the mind to the extent that it renders the conditions for judicial interim release may be made accused incapable of appreciating the nature and once the assessment order is in force (s. 672.17). quality of the physical character and physical For out-of-custody assessments, this means that if consequences of an act or omission, or of knowing there are any “bail-like” conditions that the Crown that the act or omission is morally wrong. This wants to have the court impose on an accused, these means morally wrong in the sense that the accused conditions, if imposed, must be part of the assess- is incapable of understanding that the act is wrong ment order. according to the ordinary moral standards of Once an accused returns from an assessment, the reasonable members of society (R. v. Chaulk court may hold a fitness hearing. If the accused is (1990), 62 C.C.C. (3d) 193 (S.C.C.), and R. v. found to be fit, the trial proceeds as if the issue of Landry (1991), 62 C.C.C. (3d) 117 (S.C.C.)). fitness had never been raised. If the court returns a In R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.), verdict of unfit, the court has four options: the Supreme Court of Canada fashioned a new (a) order a further assessment for up to 30 days common law rule regarding when evidence of men- under s. 672.11(d) to help in determining an tal disorder can be raised in a trial. Under the rule, appropriate disposition; the Crown may lead evidence of mental disorder in only two circumstances. (b) order treatment of the accused for up to 60 days under s. 672.58 if there is evidence First, the Crown may raise the issue at the conclu- that a course of treatment is likely to return sion of the trial after a verdict of guilty has been the accused to fitness; reached, but before the entry of a conviction. At that point, after the finding of guilt, the Crown may (c) proceed directly to a disposition hearing lead evidence of mental disorder, which evidence under s. 672.45. For those found unfit, a the trier of fact will then consider in determining court may order that the accused be re- whether the proper verdict should be a conviction or leased subject to conditions or placed in a verdict of not guilty by reason of mental disorder. custody; Under this branch of the rule, the Crown is required (d) defer disposition to the Review Board, in to prove both the actus reus and the mens rea of the which case the Review Board must make charge beyond a reasonable doubt before leading its disposition within 45 days under any evidence of a mental disorder. s. 672.47(1). The second circumstance in which the Crown is The import of these provisions is that the Criminal permitted to lead evidence of mental disorder is if Code allows the court to make the initial determina- the accused’s own defence has put their own cation of fitness and an interim disposition but gives pacity for criminal intent in issue. In this case, the the Review Board full jurisdiction over the unfit Crown is entitled to lead evidence of mental disor- accused afterwards. It is left to the Review Board to der without waiting first for a verdict of guilty. determine whether an unfit accused will remain in The accused is entitled to raise the issue of mental custody or be conditionally released. Release with- disorder at any stage of the trial. The accused also out conditions is not an option at this stage. It is al- may wait until the trier of fact has concluded that so the Review Board that determines when the ac- the accused is guilty of the offence charged and at cused is fit to stand trial. that point adduce evidence of mental disorder, be- As a practical note, currently in BC, most in- fore a verdict of guilt is entered. custody psychiatric assessments are conducted at In cases where the Crown opposes the defence of the Forensic Psychiatric Institute in Port Coquitlam. “not criminally responsible on account of mental Out-of-custody assessments are provided through disorder” (“NCRMD”), the Crown may call rebuttal the outpatient clinics of Adult Forensic Psychiatric psychiatric evidence after the defence case. This is Services. allowed even when defence counsel has given notice before the Crown’s case that the issue will be 3. The Defence of Mental Disorder raised (Chaulk). In other cases, the “facts” of the Section 16(2) of the Criminal Code provides that offence may be put before the court through agreed “[e]very person is presumed not to suffer from a admissions, and the Crown evidence may support a mental disorder so as to be exempt from criminal finding of NCRMD.

Criminal Procedure 19 The persuasive burden of showing that the accused (c) directing that the accused be detained in was suffering from a mental disorder at the time of custody in a hospital designated under the the offence is on the person advancing it (R. v. Her- Criminal Code by the provincial Minister bert (1954), 113 C.C.C. 97 (S.C.C.) and Chaulk). of Health. Even if the Crown and the defence agree that the 5. Sentencing—Accused Has Minor Mental Illness accused was not NCRMD, it is still up to the trier of fact to make the final decision on this issue. A psychiatric assessment may be helpful to the Although the evidence of psychiatrists is very judge sentencing an accused who has a mental ill- important, it is not determinative with respect to the ness that does not give rise to the defence of issue of whether or not the accused was suffering NCRMD. In these circumstances and when request- from a “disease of the mind” (R. v. Rabey (1977), ed by the court, the Crown commonly arranges a 37 C.C.C. (2d) 461 (Ont. C.A.), aff’d (1980), 54 psychiatric examination and a medical report as part C.C.C. (2d) 1 (S.C.C.)). of a presentence report. Defence counsel may want a referral to a psychiatrist of their own choosing ra- 4. Disposition—Accused Not Criminally Respon- ther than to a psychiatrist retained by the Forensic sible by Reason of Mental Disorder Psychiatric Services Commission. In the latter situation, the court does not pay for the psychiatric as- To help the court evaluate the accused’s state of sessment and it does not form part of the presen- mind at the time of the commission of an act or of tence report. an omission, the court may order an assessment, for up to 30 days, under s. 672.11(b) of the Criminal An accused who is to be seen by a Commission Code. Again, the presumption is that the assessment psychiatrist will be directed to the psychiatric clinic will be conducted out of custody unless the Crown at 307 West Broadway in Vancouver or to another can show cause why an in-custody assessment is clinic in British Columbia. If the accused is in cus- necessary. tody, however, a Commission psychiatrist will conduct the examination at the Remand Centre. When an accused is found to be NCRMD, the court has three options. First, the court may move directly Finally, where the accused has a minor criminal to a disposition hearing under s. 672.54 to decide on record or none at all, the circumstances of the of- placement of the individual. Second, the court may fence are not serious, and the accused is a person defer to the Review Board to make the disposition. with a mental disorder as defined by the Mental Third, the court may order a psychiatric assessment Health Act, the Crown may decide to let the matter of the accused under s. 672.11, for up to 30 days, be dealt with as a medical problem and enter a stay for the purpose of aiding it in making the appropri- of proceedings once it is clear that a mental health ate disposition. facility will admit the accused. In determining whether the court or a Review Board 6. The Review Board should make the initial disposition after a NCRMD verdict, the following matters, set out in ss. 672.54, One important feature of the mental disorder 672.5401 and 672.541, are to be considered: provisions in the Criminal Code is the provincial Review Board established under s. 672.38. After the (a) the safety of the public, which is the para- initial verdict of unfit to stand trial or NCRMD is mount consideration (see s. 672.5401); rendered in court, and after the initial disposition is (b) the mental condition of the accused; made if the court chooses to make it, full authority over continuing dispositions is transferred to the (c) the reintegration of the accused into society Review Board. This includes a mandatory annual and the other needs of the accused; and review of all persons found unfit or not criminally (d) the victim impact statement if one has been responsible. filed. The Criminal Code gives the Review Board full Using these considerations, the court or Review jurisdiction over its own procedures. Appeals from Board must make the disposition that is the least the Review Board go directly to the Court of onerous and the least restrictive. The options are as Appeal. follows: The Review Board is now the forum in which deci- (a) directing that the accused be discharged sions are made with respect to the difficult issue of absolutely; how to best protect the public from unfit and NCRMD accused who may pose a danger to others (b) directing that the accused be discharged as a result of their disorder. It is this tribunal that from custody on such conditions as are determines if the accused should be placed in or out appropriate; or of custody. Unlike a court, which can only make a

Criminal Procedure 20 disposition for a maximum of 180 days, the Review Board has the power to renew or alter its orders on a yearly basis. In making dispositions for those who are unfit or NCRMD, the Review Board has the same options and must deal with the same considerations as the court. Persons found to be NCRMD may be discharged absolutely, discharged on conditions, or held in custody, subject to the considerations set out in s. 672.54 of the Criminal Code. Accused people who may be unfit are subject to a two-stage hearing: first, with respect to whether they remain unfit to stand trial; and second, as to whether they should be placed in custody or released on conditions. Again, any conditions must be included on the order that the Board makes. If the Review Board concludes that the accused is fit, the accused is returned to court for a hearing.

Criminal Procedure

21 Defence counsel should always remember that the onus Chapter 3 is on the Crown to prove its case beyond a reasonable doubt. Defence counsel should be cautious when entering into discussions or making requests for information, Preparation for Trial1 because those actions might alert the Crown to deficien- cies in the case that the Crown has overlooked. Both Crown counsel and defence counsel should turn [§3.01] Introduction their minds at an early stage in the proceedings to pre- serving evidence—especially witnesses’ memories. This chapter canvasses the practical and legal issues that Failure to preserve evidence early can result in the loss counsel must address before proceeding to a trial of a of material that only assumes significance later in the criminal case. It includes description of some of the mo- case. Crown counsel will request that the police obtain tions and applications that may be appropriate before the statements from all relevant witnesses. Defence counsel trial or hearing begins. should ensure that statements from possible defence witnesses are obtained at the earliest opportunity. When the Each case is unique and will have its own requirements client can afford it, defence counsel may also consider and features that counsel must deal with. However, there retaining the services of a private investigator to conduct are broad common steps that counsel should take in eve- interviews of key witnesses as quickly as possible. ry case. This chapter describes these steps in the most typical sequence. Several steps may also be occurring Defence counsel may also want to visit the scene of the contemporaneously. alleged offence before it changes (if possible). Ultimate- ly, a visit may reveal inconsistencies or impossibilities in [§3.02] Preparation Generally the Crown’s evidence at trial. Photographs or video recordings of the scene may be useful as long as there is a Preparation is the key to effective and competent presen- witness for either the Crown or defence (preferably other tation of a case on behalf of a client to the court. It also than the accused) who can identify the scene and testify will establish a positive reputation with other counsel, that the visual aids accurately depict the scene at the judges of the court, and clients. A good reputation is one time of the alleged offence (in terms of distance, size, of counsel’s most valuable assets. lighting, etc.). Trial counsel must always be prepared for the unex- Both Crown and defence counsel should also try to iden- pected and recognize very few trials unfold exactly as tify legal issues as early as possible so that the law can anticipated. The goals of preparation generally are as be researched and factual underpinnings explored. follows: Crown and defence counsel should carefully read the statute under which the accused is charged, paying atten-  ensuring that the client fully understands what tion to sections containing definitions, presumptions, choices and options are available, and the pros procedures and penalties. These sections may be in dif- and cons of those alternatives; ferent sections of the statute than the offence section.  understanding as thoroughly and completely as possible what evidence exists against the client [§3.03] Disclosure of Particulars in support of the charges that the client is facing; 1. Purpose  anticipating and being prepared for all the legal issues that might arise during the trial, and the The onus is upon the Crown to prove its case factual issues that the trier of fact will have to against the accused. determine at the conclusion of the trial; and The common law and the Code of Professional  identifying any evidence that may be required Conduct for British Columbia (the “BC Code”) es- for presentation during the case and presenting tablish the Crown’s obligation to disclose all rele- that evidence efficiently and effectively. (This vant information in its possession to an accused. includes witnesses, real evidence, documents, This obligation is also constitutionally entrenched photographs, etc.) in s. 7 of the Charter (see §6.08(3) regarding the Charter and the right to disclosure). The duty of Crown counsel to provide full disclosure was can- 1 Revised by Ann Seymour, Administrative Crown Counsel, BC vassed at length by the Supreme Court of Canada in Prosecution Service, in December 2020. Previously revised by R. v. Stinchcombe, [1991] 3 S.C.R. 326 and R. v. Mornè Coetzee (2019); Christie Lusk (2017); Lesley Ruzicka McNeil, 2009 SCC 3. (2005, 2008, 2010 and 2012); D. Allan Betton (2006); Kenneth D. Madsen (2003 and 2004); Thomas Burns (1995–2002); and Bronson Toy and Thomas Burns (1994). Reviewed in 2002 by Tina Dion for Aboriginal law content.

Criminal Procedure 22 2. Content is a reasonable possibility that it may assist the appellant in prosecuting an appeal: McNeil. Subject to certain limits, the Crown is under a general duty to disclose all relevant information in its 3. How and When to Request Particulars possession or control, regardless of whether the evidence is inculpatory or exculpatory (R. v. Chaplin, When the police have concluded their investigation [1995] 1 S.C.R. 727 at 739). Relevant information of a matter, they will submit a document entitled a includes not only information related to those mat- Report to Crown Counsel, which is used by the ters the Crown intends to adduce in evidence Crown in the charge approval process. Once charg- against the accused, but also any information in re- es have been laid, those particulars are available to spect of which there is a reasonable possibility that the defence. it may assist in the exercise of the right to make full Initial disclosure should occur before the accused is answer and defence. called upon to elect the mode of trial or plead: The BC Code requires the Crown to disclose all rel- Stinchcombe at para. 28. The Provincial Court’s evant facts and known witnesses, whether tending Criminal Caseflow Management Rules (the “CCFM to show guilt or innocence. Crown counsel should Rules”) require the Crown to make the disclosure disclose evidence regardless of whether Crown required by law at the initial appearance or as soon counsel intends to adduce it. The information need as practicable after it, and fuller and better disclo- not be credible nor capable of becoming evidence sure as it becomes available or as required by law, itself. See rules 2.1-1, 5.1-3 and commentary [1] but in a timely manner (Rule 6). to 5.1-3. Counsel must obtain initial disclosure at the earliest At the initial disclosure stage, the particulars will opportunity. It is impossible to interview the ac- generally include the Report to Crown Counsel and cused properly, and difficult to conduct a proper ar- copies of witness statements, police notes, exhibits, raignment hearing or estimate the length of the any statement made by the accused, and a copy of hearing accurately, without reviewing the particu- the accused’s criminal record. The particulars may lars (see §3.13–§3.15 on pleas, elections and re- also include photographs, audio and video tapes, elections). and relevant police disciplinary records (see While it may be expedient to make verbal requests McNeil). Defence counsel should closely review the for disclosure from the Crown, defence counsel Report to Crown Counsel to determine if other should consider making a well-crafted written items are relevant and should be requested. Often, disclosure request. A complete and thorough many of the documents referred to in §3.04 will be written request for disclosure crystallizes some of included. the Crown’s obligations, and the written request can Defence counsel should also obtain copies of notic- serve as a very useful tool if disclosure issues arise es or certificates if the Crown intends to produce as the trial approaches, or during the course of a these in court. The client will often have these doc- trial. Defence counsel should include requests for uments, but counsel should ensure that they have a all business and medical documents in the written complete set. request for particulars. Defence counsel should also obtain from the prose- If, after reviewing the initial particulars, defence cutor a copy of any psychiatric or doctor’s report counsel determines that additional disclosure is re- concerning the accused that has been prepared at quired, defence counsel should request those partic- the request of the Crown. ulars from Crown counsel in a timely manner. In certain cases, documents from businesses or fi- In Provincial Court, if the Crown does not agree nancial institutions will be produced in court. When that the disclosure is required or does not respond to counsel anticipates this, counsel should obtain pho- a request in good time, the CCFM Rules specify tocopies of these documents as part of the particu- that an application may be brought to a judge for lars. The accused and defence counsel are entitled “directions” or for “further and better disclosure.” to inspect any documents that the Crown will pro- Applications for further disclosure must be brought duce under the business records exception to the in a timely manner (Rule 6). hearsay rule (s. 30(7) of the Canada Evidence Act). At the BC Supreme Court, outstanding requests for The Crown has a continuing obligation to provide disclosure can also be addressed at a pre-trial con- disclosure throughout the proceedings. Further, the ference, although any actual pre-trial applications Crown’s obligation to provide disclosure extends for disclosure must be brought in accordance with beyond the trial. In the appellate context, the Crown the Criminal Rules of the Supreme Court of British is required to disclose any information where there Columbia, SI/97-140 (Rule 2).

Criminal Procedure 23 Courts may be unsympathetic to complaints that full Not all records in the possession of the police are disclosure has not been made where the defence has subject to the first party disclosure regime. While not pursued disclosure in a timely manner: Stinch- the investigating police force (or other investigating combe at para. 24; R. v. Bramwell (1996), 106 agency) stands on the same “first party” footing as C.C.C. (3d) 365 (B.C.C.A.), aff’d (1996), 111 the Crown for the purpose of fulfilling its obligation C.C.C. (3d) 32 (S.C.C.). to provide the Crown with all relevant material pertaining to its investigation of the accused, the po- Requests for further disclosure may arise at any lice and Crown are unquestionably separate and in- stage of the proceedings. For example, cross- dependent entities, both in fact and in law. examination at the preliminary inquiry of the police Information in the possession of the police or other officer in charge of the investigation may reveal in- government departments that is unconnected to the formation not previously known to the defence that investigation giving rise to the charges (such as triggers disclosure obligations. criminal investigation files involving third parties) generally falls outside of the scope of first party 4. Limitations disclosure, and its production will instead be gov- Crown counsel does retain some discretion to delay erned by the third party “O’Connor” regime: or refuse disclosure on the basis that the material McNeil at paras. 13, 22–25. sought is beyond the control of the Crown, clearly Notably, information about maintenance of breatha- irrelevant, privileged, or falls within one of the stat- lyzers was formerly subject to first party Stinch- utory exceptions to the general rules relating to combe disclosure, pursuant to R. v. Phangura, 2010 prosecutorial disclosure (see Stinchcombe, Chaplin, BCSC 944. The Supreme Court of Canada in 2018 McNeil, and ss. 278.1–278.9 of the Criminal Code). decided that such information is subject to the rules Further, the Crown retains discretion as to the man- for information in the hands of third parties. An ac- ner and timing of the disclosure where the circum- cused must apply to court and show the documents stances are such that disclosure in the usual course are likely relevant in order to obtain them: R. v. may result in harm to anyone or prejudice to the Gubbins, 2018 SCC 44. public interest. For example, non-disclosure may be justified based on public interest immunity, such as The Crown does have a role to play in “bridging the police informer privilege (see e.g. R. v. Kelly gap” between first party disclosure and third party (1995), 99 C.C.C. (3d) 367 (B.C.C.A.)). Withhold- production. The Crown, in fulfilling its Stinch- ing or delaying production of information may also combe disclosure obligations, does not have to be justified out of concern for the security or safety make inquiries of every state authority. However, if of witnesses or persons who have supplied infor- the Crown is “put on notice” about the existence of mation to the investigation, or to protect the identity relevant information in the hands of other agencies of police officers engaged in an ongoing investiga- pertaining to the case against the accused, or to the tion: Stinchcombe at paras. 16, 22. credibility or reliability of a witness in the case, the Crown has a duty to make reasonable inquiries of The Crown’s disclosure obligation to the defence those other Crown agencies or departments and, if it extends only to “first party” records or “Stinch- is reasonably feasible to do so, obtain the infor- combe disclosure,” also referred to as the “fruits of mation: McNeil at paras. 13, 48–51. the investigation.” This is material relating to the accused’s case in the possession or control of the Where the accused is seeking disclosure of third prosecuting Crown entity: McNeil at para. 22. The party records, and the third party asserts that the investigating police force (or other investigating documents are either not relevant or attract a priva- state authority) has a corresponding obligation to cy interest, defence counsel must bring a formal provide the Crown with all relevant material per- third party records application for production of the taining to its investigation of the accused. There- information: see McNeil at para. 27. The procedure fore, it is not open to Crown counsel to explain a to be followed on a third party records application is failure to disclose this material on the basis that the as follows (see McNeil): investigating police force failed to disclose it: 1. The accused first obtains a subpoena duces McNeil at paras. 14, 24. tecum under ss. 698(1) and 700(1) of the The Crown’s disclosure obligation to defence does Criminal Code and serves it on the third par- not extend to “third party records” (i.e. information ty record holder. The subpoena compels the in the hands of other government agencies or third person to whom it is directed to attend court parties). The Crown cannot disclose what it does with the targeted records or materials. not have or cannot obtain. Instead, production of 2. The accused also brings an application, sup- these records is generally governed by the two-part ported by appropriate affidavit evidence, test for production set out in R. v. O’Connor, [1995] showing that the records sought are likely to 4 S.C.R. 411, discussed below.

Criminal Procedure 24 be relevant in their trial. Notice of the appli- must be given notice of the application. The application is given to the prosecuting Crown, the cation must be brought before the trial judge (see person who is the subject of the records, and A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; any other person who may have a privacy O’Connor). interest in the records targeted for production. 5. Remedies for Lack of Disclosure 3. The application is brought before the judge When defence counsel is concerned that full disclo- seized with the trial, although it may be sure has not been made, these concerns should be heard before the trial commences. If produc- put on the record and counsel should consider tion is unopposed, the application for pro- scheduling a pre-trial disclosure motion as contem- duction becomes moot and there is no need plated in Stinchcombe. See §6.08(3), regarding the for a hearing. Charter and the right to disclosure. 4. If the record holder or some other interested The Crown’s decision not to disclose information party advances a well-founded claim of priv- may be reviewed by the trial judge on a voir dire, in ilege, the existence of privilege will effec- which the Crown bears the onus of justifying the tively bar the accused’s application for pro- non-disclosure: Stinchcombe at paras. 21-23. On reduction, unless the accused’s innocence is at view, the trial judge should be guided by the gen- stake. Issues of privilege are best resolved at eral principle that information ought not to be with- the outset of the application process. held if there is a reasonable possibility that the withholding of information will impair the right of 5. Where privilege is not in question, the judge the accused to make full answer and defence, unless determines whether production should be the non-disclosure is justified by the law of privi- compelled in accordance with the two-stage lege or on the basis that the information is irrele- test established in R. v. O’Connor, [1995] 4 vant: Stinchcombe at para. 22. S.C.R. 411. At the first stage, if the judge is satisfied that the record is likely relevant to [§3.04] Court Records, Informations, the proceedings against the accused, the Transcripts judge may order production of the record for the court’s inspection. At the next stage, Defence counsel should also consider obtaining the fol- with the records in hand, the judge deter- lowing documents as part of preparation for the hearing: mines whether, and to what extent, production should be ordered to the accused. 1. a photocopy of the Information (refer to the discussion of Informations and Indictments at Special rules apply where an accused is seeking a §3.05); “record” relating to a complainant or witness in proceedings for one of the sexual offences listed in 2. a photocopy of the Record of Proceedings which s. 278.2(1), whether it is in the hands of a third indicates when appearances were made, what party or Crown counsel. Crown counsel may refuse occurred on appearance dates, the next appear- to disclose records on the basis that they fall within ance, bail disposition, etc.; the statutory exceptions to disclosure set out in 3. photocopies of the police booking sheets that ss. 278.1–278.9 of the Criminal Code. The provide information such as a full description of constitutionality of these sections was upheld in R v the accused, where the accused was arrested, Mills, [1999] 3 S.C.R. 668, and these sections are condition of the accused upon arrest, what sometimes referred to as the “Mills regime.” belongings the accused had at the time of the To apply to obtain the records in these circumstanc- arrest, etc.; es, counsel must bring a formal written application 4. photocopies of any other relevant documents in for production pursuant to the procedure outlined the court file, such as probation orders, release ss. 278.2–278.9 of the Criminal Code. “Record” is orders, etc.; defined in s. 278.1 as “any form of record that contains personal information for which there is a rea- 5. photocopies of any warrants that have been is- sonable expectation of privacy” and includes medi- sued pursuant to the Information; cal, psychiatric, therapeutic, counselling, education, 6. photocopies of all search warrants, including the employment, child welfare, adoption and social ser- Information to Obtain a Search Warrant. The In- vices records, as well as personal journals and dia- formation to Obtain may provide useful disclo- ries. This procedure applies regardless of whether sure about the police investigation; it may also the records are in the possession of the Crown or a provide a basis to attack the search warrant at third party. The holder of those records, as well as trial as part of an application to have evidence the persons who have an interest in the material, seized under the search warrant excluded under

Criminal Procedure 25 the Charter (see §6.11, regarding the Charter 4. Does the Information contain sufficient particu- and unreasonable searches); larity to raise the charges from the general to the particular? 7. photocopies of all affidavits sworn in support of any Authorizations to Intercept Private Commu- Criminal Pleadings and Practice in Canada, by E. G. nications. To obtain these, counsel must apply to Ewaschuk, is an excellent source of material on the court prior to the preliminary inquiry or trial Informations and Indictments. Martin’s Annual Criminal (Dersch v. Canada (Attorney General) (1990), Code also has a useful appendix that contains charge 60 C.C.C. (3d) 132 (S.C.C.)); s. 187 of the wording for most sections under the Criminal Code, Code). As a practical matter, the Crown will of- although counsel must remember that other wordings ten make the application. Subject to editing by may be equally valid, and wordings in Martin’s may be the prosecutor—for example, to protect a confi- defective. dential informant—the defence is entitled to a To challenge an Information or Indictment, defence copy of all affidavits in support of such Authori- counsel must make a motion to quash under s. 601(1) of zations or Renewals so that the accused may be the Criminal Code. Such an objection must be made be- able to make full answer and defence. The de- fore plea or with leave of the court. Remember that in fence may seek an order from the judge for dis- most cases, when an objection is made before plea, any closure of any edited portion; serious prejudice to an accused can be avoided by an 8. transcripts from any preliminary matters which adjournment to allow the accused time to prepare to face may be relevant for the hearing of the matter; the “cured” Indictment. and Lamer C.J.C. set out the current attitude towards amend- 9. transcripts from other related criminal or civil ing Informations and Indictments in R. v. Webster court proceedings in which potential witnesses (1993), 78 C.C.C. (3d) 302 (S.C.C.): have testified about the matters before the court. Since the enactment of our Criminal Code in [§3.05] Informations and Indictments 1892 there has been, through case law and punc- tual amendments to s. 529 [now s. 601] and its predecessor sections, a gradual shift from requir- The Indictment or Information is the document charging ing judges to quash to requiring them to amend the accused. Both Crown and defence counsel should them instead; in fact, there remains little discre- review the Information or Indictment closely and as ear- tion to quash. Of course, if the charge is an abso- ly as possible because this is the document that guides lute nullity, an occurrence the conditions of the proceedings. which the Chief Justice has set out clearly in his The definition of “Indictment” in s. 2 of the Criminal reasons, no cure is available as the matter goes Code includes “an information or a count therein.” to the very jurisdiction of the judge. … But, if Therefore, the law relating to the sufficiency, amending, the charge is only voidable, the judge has juris- and quashing of Indictments also applies to Infor- diction to amend. Even failure to state some- mations. thing that is an essential ingredient of the offence (and I am referring to s. 529(3)(b)(i) [now Historically, many cases were decided on technical ar- s. 601(3)(b)(i)]) is not fatal; in fact, it is far from guments concerning Informations and Indictments. The being fatal, as the section commands that the modern approach is to reject minute analysis of Infor- judge “shall” amend. mations and Indictments. Generally, an Information will be sufficient if it reasonably informs the accused of the A controversial issue is when a court can quash an In- charges against that person and raises the allegations formation that is allegedly an abuse of process. A trial from the general to the particular. As long as the Infor- court judge has a residual discretion to stay proceedings, mation discloses an offence known to law, the courts are but a judge should exercise this power only in the likely to cure any defect in the charging document by “clearest of cases” (see §6.08(2), regarding the Charter amending the document and granting the defence an ad- and judicial stays for abuse of process). Direct indict- journment. ments similarly have withstood motions to stay when they were argued to be “without foundation” (R. v. Den- Counsel should review the Information and consider the bigh (1988), 45 C.C.C. (3d) 86 (B.C.S.C.)). following questions: When determining whether an amendment is appropri- 1. Does the Information charge an offence known ate, the focus is on prejudice to the accused and the pos- to law? sibility of an injustice. Unless the charge is an “absolute 2. Is the Information properly sworn? nullity,” the judge has very wide powers to cure a defect through amendment, and must do so unless the amend- 3. Was the Information laid within the applicable ment would cause injustice in that the accused has been time frames? misled or prejudiced by the defect. Even if there has

Criminal Procedure 26 been such an injustice, the court should amend and ad- Formal “alternative measures” to prosecution were in- journ rather than quash. troduced in the Criminal Code in 1995—see s. 717. Section 601 of the Criminal Code sets out the circum- Conditions for approval of an alternative measures plan stances in which an amendment can be made. Several are set out in s. 717. They include that the plan must: cases address the issue of when amendments can be  not be inconsistent with the protection of made: society; 1. before election (R. v. ITT Industries of Canada  be part of a program of alternative measures au- Ltd. (1987), 39 C.C.C. (3d) 268 (B.C.C.A.)); thorized by the Attorney General; 2. at the preliminary hearing (s. 601);  be appropriate to the needs of the accused and 3. after a no-evidence motion (R. v. Powell, [1965] the interests of society and the victim; and 4 C.C.C. 349 (B.C.C.A.));  be entered into 4. after an insufficient evidence motion, but if the . by a fully informed accused who fully and motion to amend is allowed, then the accused freely consents to participation in the al- should be permitted to re-elect to call evidence ternative measure after being advised of (R. v. Wiley (1982), 65 C.C.C. (2d) 190 (Ont. their right to counsel; C.A.)); . by an accused who accepts responsibility 5. after the defence case closes (R. v. Hagen for the act or omission that formed the ba- (1969), 6 C.R.N.S. 365 (B.C.C.A.)); sis of the offence; and 6. during final submissions of counsel (R. v. Clark . in cases where the prosecution is of the (1974), 19 C.C.C. (2d) 445 (Alta. S.C. App. opinion that there is sufficient evidence to Div.)); and proceed with the offence and the prosecu- 7. on appeal (R. v. Morozuk (1986), 24 C.C.C. (3d) tion of the offence is not in any way 257 (S.C.C.) and R. v. Irwin (1998), 123 C.C.C. barred by law. (3d) 316 (Ont. C.A.)). Alternative measures may be considered at any time throughout the prosecution. Crown counsel may on oc- [§3.06] Limitation Periods casion make a referral to alternative measures prior to laying an Information if the referral and any program can Section 786(2) imposes a limitation period of 12 months be completed prior to the expiration of the limitation 2 for summary conviction offences. There is generally no period and is otherwise appropriate. There are ad- limitation for indictable offences. When the offence vantages to defence counsel contacting Crown counsel charged is a “hybrid offence” (summary or indictable at to seek alternative measures at the earliest possible time the election of the Crown) and when the charge has been in order to influence prosecutorial decisions before they laid more than 12 months after the date of the offence, become entrenched in the formal charge process. the Crown must proceed by indictment on the charge, if appropriate. When considering an application to the prosecution for an alternative measure, defence counsel may want to Counsel can waive a summary conviction limitation review the ALT 1—Alternative Measures for Adult Of- period under s. 786 (2). There may be situations in fenders Policy, in the Crown Counsel Policy Manual, which the defence wants a summary conviction trial Criminal Justice Branch, Ministry of Attorney General rather than an indictable proceeding where the charge (a public document), so that counsel can tailor the re- was sworn outside the 12-month limitation period. In quest to address the factors contained in the Policy. With these circumstances it may be worthwhile to approach respect to the federal Crown, counsel should explore Crown counsel to see if they will consent to a summary alternative measures with the Public Prosecution Service conviction proceeding. of Canada or its agent in their area. [§3.07] Alternatives to Prosecution The process will usually start with a submission by defence counsel to the Crown in which the responsibility Once defence counsel has reviewed the particulars and of the client is admitted, full antecedents of the client are the Information, counsel should consider whether the provided, and an explanation is given as to why the of- accused might be eligible for alternative measures. Note fence occurred and why it will not occur in the future. that “alternative measures” programs are occasionally Reference letters may help. The Crown will review the referred to colloquially as “diversion” because they “di- material and make a referral to a service provider (usual- vert” offenders out of the criminal justice system. ly Community Corrections) for a report. The agency will investigate the accused’s suitability for alternative 2 Prior to the coming into force of amendments to the Criminal measures and report back to Crown counsel. Any report Code, the limitation period was six months. that recommends alternative measures will also include Criminal Procedure 27 an alternative measures plan. Crown counsel may accept, would benefit from a “package deal” (dealing reject, or modify the proposed plan. Many alternative with both charges at the same time). measures agreements include some form of supervision, 4. Counsel is satisfied that a guilty plea is monitoring, or other involvement by a third party. otherwise appropriate, and the accused cannot No admission, confession or statement accepting respon- tolerate any delay and wants to enter the plea as sibility in an alternative measures agreement is admissi- soon as possible. ble in evidence against that person in any civil or crimi- 5. The accused has been detained or has consented nal proceeding (s. 717(3)). Entry into an alternative to remain in custody and a determination of guilt measures arrangement does not prevent laying of an In- is probable. However, remember that time spent formation or bar a prosecution. However, if a prosecu- in custody awaiting trial (pre-disposition custo- tion is commenced, the accused may ask the court to dy) may be taken into account by the sentencing dismiss the charge under s. 717(4) if the terms and con- judge in reducing the length of the sentence ul- ditions of the alternative measures plan have been com- timately imposed (see §8.04(19)(a)). pletely complied with, or if they have been partially complied with and the court is of the opinion that the 6. Several cases can be manipulated to the ad- prosecution would be unfair having regard to the cir- vantage of the accused without misleading the cumstances of the case and the person’s performance of court. For example, an accused may have charg- the alternative measures. es in several jurisdictions. Separate pleas can be arranged without the prosecution knowing what Generally, alternative measures agreements in British is happening in the other areas, resulting in the Columbia must be completed within three months. How- offences being treated as isolated instances, and ever, there may be exceptional cases that require a long- sentences that result being concurrent. The “Jus- er time period than three months. Police and government tin case-tracking system” makes this more diffi- agencies retain records of alternative measures (ss. 717.2 cult to do than it used to be. Alternatively, coun- and 717.3). The records may be disclosed in limited cir- sel may consider waiving all charges to a single cumstances under s. 717.4. jurisdiction where the most favourable disposi- When an accused is not eligible for alternative measures, tion is possible. defence counsel may want to consider an early There are, of course, other additional factors not set out disposition. here that support early disposition. [§3.08] Early Disposition [§3.09] Plea Resolution Once the lawyer has agreed to take the case and obtained While there may be some debate over the desirability of initial disclosure, and the custodial status of the client plea bargaining, the reality is that discussions and nego- has been determined, the lawyer can consider early dis- tiations leading to compromise by the Crown or defence position of the case. are a fact of criminal practice. No one can predict with Although the majority of cases are set for hearing (even certainty what the outcome of a trial will be. if some of them are ultimately resolved by means other From an accused’s perspective, it is imperative that they than a full hearing), in some cases the matter is disposed know what alternatives exist in order to be able to make of by guilty plea, stay of proceedings, withdrawal, or by fully informed decisions about whether to proceed to various combinations of these, on the very first appear- trial. The accused is the person who knows what oc- ance of the accused, or on a very early appearance. curred and whether the charges are well-founded or not. A guilty plea is only appropriate where the client accepts Defence counsel rarely can know with certainty whether responsibility for having committed the crime. they are being told all of what the accused knows. The An early guilty plea may be beneficial in the following accused, for a variety of reasons, may not be entirely situations: honest or complete in what they tell defence counsel. Consequently, each accused needs to know what the al- 1. The Crown file is deficient. For example, the ternatives are so that they can assess what is the best for criminal record is missing or is incomplete, or a themselves. police investigation is ongoing. Rules 5.1-7 and 5.1-8 (“Agreement on Guilty Plea”) of 2. The lawyer and the accused find the judge, pros- the BC Code state the duties of defence counsel as ecutor, or police presently dealing with the mat- follows: ter to be to their liking, and want to avoid the possibility of less favourable opponents assum- 5.1-7 Before a charge is laid or at any time after a ing responsibility for the matter later. charge is laid, a lawyer for an accused or potential accused may discuss with the prosecutor the possible 3. Another charge against the same accused must be dealt with and it is apparent that the accused

Criminal Procedure 28 disposition of the case, unless the client instructs 3. a guilty plea to the charge in consideration for otherwise. the Crown not proceeding by Notice to Seek Greater Penalty; 5.1-8 A lawyer for an accused or potential accused may enter into an agreement with the prosecutor 4. a guilty plea on the understanding that the about a guilty plea if, following investigation, Crown will take a certain position on sentence; (a) the lawyer advises his or her client about 5. a guilty plea on the understanding that the guilty the prospects for an acquittal or finding of plea or sentence will occur on certain specified guilt; dates; or (b) the lawyer advises the client of the implica- 6. a guilty plea on the understanding that the tions and possible consequences of a guilty charges against other persons will be dropped. plea and particularly of the sentencing au- It is improper for the Crown to conceal any of an ac- thority and discretion of the court, includ- cused’s previous convictions from a sentencing judge by ing the fact that the court is not bound by “not alleging” them as part of a plea bargain. However, any agreement about a guilty plea; when such convictions are brought to the judge’s atten- (c) the client voluntarily is prepared to admit tion, the Crown may state that they are not material be- the necessary factual and mental elements cause of their age or nature. of the offence charged; and In order to arrange a plea bargain, defence counsel (d) the client voluntarily instructs the lawyer to should contact the Crown in charge of the case and pro- enter into an agreement as to a guilty plea. pose a position the Crown should take if the client were to plead guilty either to the offence charged or some oth- Commentary [1] The public interest in the proper er offence. Defence counsel frequently use this oppor- administration of justice should not be sacrificed in tunity to provide the Crown with new information, espe- the interest of expediency. cially on the background of the accused, to assist the The Crown views resolution discussions as essential to Crown in reviewing the proposal. Tactically, defence the functioning of the justice system when they are con- counsel should decide beforehand whether the proposal ducted properly, in a principled manner, and in accord- is the one hoped for or simply a negotiable position. ance with the charge approval standard. See RES-1 When the proposal is accepted, it must be conditional on “Resolution Discussions and Stays of Proceedings” in confirmation from the client. This confirmation must be the Crown Counsel Policy Manual for the factors the done promptly. Crown considers when engaging in resolution discus- The accused’s hope is that, as a result of the discussions, sions. Resolution discussions are beneficial because they the sentence will be somewhat lower than it would be allow Crown counsel to consider information known after trial, disposition will occur at a time to suit the ac- only to the defence concerning the strength of the cused’s convenience, disposition by guilty plea will be Crown’s case. The early resolution of criminal charges less expensive than a trial, fewer convictions will appear reduces stress and inconvenience to victims and witness- on the accused’s record, and the likely outcome will be es. It also results in a more efficient justice system when known in advance. Where Crown and defence are in full trials are either not necessary, or are shorter, due to the agreement as to the exact sentence as a result of negotia- focusing of proceedings on those facts which are clearly tions, the likely outcome will be known in advance. A in issue. During resolution discussions, Crown counsel judge will only reject a joint submission if it would bring must act in the public interest at all times. the administration of justice into disrepute or be other- Generally, as part of the initial disclosure package, the wise contrary to the public interest: R. v. Anthony-Cook, Crown will give defence counsel a completed form 2016 SCC 43 at paras. 32–34. The threshold is a high called the Crown Counsel’s Initial Sentencing Position one: (“ISP”). The ISP outlines what sentence the Crown will Rejection [of a joint submission] denotes a seek if the accused enters an early guilty plea. The ISP submission so unhinged from the circumstanc- also alerts defence counsel to what additional infor- es of the offence and the offender that its ac- mation the Crown requires in order to determine a sen- ceptance would lead reasonable and informed tencing position. persons, aware of all the relevant circumstanc- Plea negotiation can result in many things, including: es, including the importance of promoting certainty in resolution discussions, to believe that 1. a guilty plea to some charges in return for other the proper functioning of the justice system charges being dropped; has broken down. 2. a guilty plea to a lesser charge in return for the In practice, when judges are considering departing from primary charge being dropped; a joint submission, they will advise counsel of their concerns and invite further submissions on those concerns.

Criminal Procedure 2 9 If a judge has concerns about a joint submission, an ac- ties that the plea was invalid is not easily discharged: R. cused may also be allowed to withdraw a guilty plea, but v. Alec, 2016 BCCA 282. not always. Defence counsel must remember to com- When disposition or alternative measures are not possi- municate clearly to the client that although a plea ble at an early stage, the next step is to set the matter for agreement with the Crown lends greater predictability to a hearing. a case, the court is not bound by the bargain and may impose a sentence quite different from that agreed to by [§3.10] Criminal Caseflow Management Rules defence and Crown. Section 606(1.1) of the Criminal Code sets out the con- Counsel who appear in the Provincial Court need to be ditions for a court accepting a guilty plea. A court may familiar with the Criminal Caseflow Management Rules only accept a guilty plea if it is satisfied that the accused (the “CCFM Rules”). The objectives of the CCFM Rules is making the plea voluntarily and that the accused un- include reducing time to trial, using judicial resources derstands the following: more effectively, and increasing accessibility of the court.  that the plea is an admission of the essential elements of the offence; The CCFM Rules were amended in 2013 to allow initial appearances and uncontested, non-adjudicative adminis-  the nature and consequences of the plea; and trative appearances to be before a Judicial Case Manager  that the court is not bound by any agreement rather than before a Provincial Court judge. The revi- made between the accused and the prosecutor. sions also reduced the number of times an accused person must appear in court before trial. It is important to remember the consequences of a guilty plea. A guilty plea is a formal admission of guilt. It in- Counsel should also be familiar with two key Practice volves an acknowledgement of all the legal elements Directions that provide clarification and guidance about necessary to constitute the crime. To constitute a valid criminal procedure under the CCFM Rules: guilty plea, the plea must be voluntary and unequivocal.  Practice Direction—Criminal Caseflow Man- The plea must also be informed, in that the accused must agement Rules Simplified Front End Criminal be aware of the nature of the allegations made against Process (No. 2013/CPD-1), as updated June 12, them, the effect of their plea, and the consequence of 2020 (the “2013 CPD-1 CCFM Practice Direc- their plea. See e.g. R. v. Singh, 2014 BCCA 373. tion”); and A trial judge has the discretion to permit a guilty plea to  CRIM 08 Criminal Caseflow Management Rules be withdrawn at any time before sentence is imposed. Simplified Front End Process (2013) Forms and The onus is on the accused to satisfy the court that there Procedure (the “CRIM 08 Forms and are “valid reasons” for a court to exercise its discretion Procedure”). to permit a guilty plea to be withdrawn. There are several factors for the court to consider in determining wheth- These Practice Directions support the objectives of the er to exercise its discretion: Adgey v. The Queen (1973), revised rules and process by, among other things, assign- 13 C.C.C. (2d) 177 (S.C.C.); R. v. M.(D.L.), 2012 ing most administrative and remand matters to Judicial BCSC 538. Case Managers. CRIM 08 Forms and Procedure also introduces the Consent Requisition, Consent Remand, An accused seeking to appeal a conviction based on a and Consent Arraignment forms. Where the precondi- guilty plea can only succeed under s. 686(1)(a)(iii) of the tions are met (as set out in CRIM 08 Forms and Proce- Criminal Code: see Singh. The accused must satisfy the dure), counsel may use these forms to negate the need appellate court that the acceptance of the guilty plea was for a pre-trial/hearing personal appearance. Appropriate a miscarriage of justice and resulted in prejudice to the use of the Consent Arraignment forms will be discussed accused: R. v. Wong, 2018 SCC 25. The accused must in more detail below in §3.12. establish that the plea was not voluntary in the sense that the accused did not appreciate the nature of the charge or For the most current version of the CCFM Rules and the the consequences of the plea: Singh. Though some ap- relevant Practice Directions and forms, consult the Pro- pellate courts have required that an accused establish an vincial Court website (www.provincialcourt.bc.ca/), un- “articulable route to acquittal” before the plea will be set der “Criminal Caseflow Management Rules” and “Crim- aside, the Supreme Court of Canada rejected this ap- inal & Youth Court Matters Practice Directions.” Be proach in Wong. The applicable standard of proof is one aware that practice in this area varies considerably of “reasonable possibility”; that is, the accused must throughout the province. show that there is a “reasonable possibility” that a similarly situated person would have proceeded differently if [§3.11] Initial Appearances aware of the legally relevant consequences at the time of the plea. The onus of showing on a balance of probabili- The CCFM Rules contain specific provisions relating to an accused’s initial appearance (Rule 5). Judicial Case

Criminal Procedure 30 Managers preside over initial appearances. All Judicial their duties pertaining to arraignment of accused per- Case Managers are required to be Justices of the Peace. sons, as set out in the Notice to the Profession, NP03 – Assignment of Duties to Judicial Case Managers. An initial appearance includes the first attendance of a person in court in respect of a charge, and adjournments The guidance directs Judicial Case Managers to continue from such appearances. with the arraignment process where an accused person has indicated an election before a Provincial Court judge The main purpose of initial appearances is to set a timely or an intention to plead not guilty, and to solicit infor- date for the accused’s arraignment hearing, unless the mation about the number of witnesses, anticipated Char- accused indicates to the justice that they intend to plead ter applications, and time estimates. Judicial Case Man- guilty, in which case the justice will set the matter before agers may not record a plea, but will schedule the matter a judge for the taking of a plea and sentencing for trial with the direction to parties that the plea is to be (Rules 5(1) and 5(5)). entered before the trial judge on the first day of trial. Ju- To this end, initial appearances allow an accused to ob- dicial Case Managers are also authorized to take and tain initial disclosure (Rule 6) and to obtain counsel if record an election from a person represented by counsel, and to schedule a preliminary inquiry where one is re- the accused wishes to do so (Rule 5). quested. Once counsel is retained, the usual practice in initial appearance court is for defence counsel to wait for the As a matter of practice, in some locations, including court clerk (or Crown counsel in some jurisdictions) to Vancouver (222 Main Street), Judicial Case Managers call the case by number and name. Defence counsel then will conduct arraignment hearings for summary matters introduces themselves (spelling their name unless the only (except for recording the intended plea). Judicial spelling is obvious), advises whether the client is pre- Case Managers will schedule dates for trial and will di- sent, and states the purpose of the appearance. When rect the parties to enter the plea on the first day of trial. counsel is prepared to appear only on a limited basis for In indictable matters, once the Judicial Case Manager is the client—for example, for the preliminary hearing on- satisfied that the purposes of the initial appearance have ly—counsel should state these limitations at this time. been addressed, the case will be adjourned to a judge for the purposes of recording the election and not guilty plea When the client is not present, counsel should explain before fixing a trial date. the client’s absence so that the court can determine whether an appearance by counsel or agent will be ac- [§3.12] Arraignment Hearing cepted. Counsel may appear as counsel or agent for a client charged with a summary conviction offence (see Rule 8(1) of the CCFM Rules sets out who must attend s. 800(2) of the Criminal Code), although the court may an arraignment hearing, whether for a summary or in- require the accused to appear personally. Counsel must dictable proceeding. Unless a “justice orders otherwise” have precise instructions from the client to appear in the prosecutor, legal counsel for the accused or other court on a certain date as an agent. After such an appear- legal counsel designated for the purpose of that hearing, ance, counsel must inform the client of what transpired and of the date of the client’s next court appearance. and the accused must attend the arraignment hearing. Failure to appear may result in a warrant being issued by In some locations (currently only Vancouver Island and the court for the client’s arrest. On indictable offences, the Northern Regions) no in-court appearance may be the client must appear personally unless a counsel desig- required in an adult criminal matter if the Crown and nation notice has been filed. See s. 650.01 for the cir- defence counsel have discussed the matter and agree the cumstances in which defence counsel can appear pursu- matter is ready to be set for trial, preliminary inquiry, ant to a counsel designation notice. sentencing or other hearing; agree that an in-court ar- At the first appearance on a hybrid offence matter, de- raignment or appearance is not required; and have filed a fence counsel may want the Crown to state, on the rec- Form 4 Consent Arraignment form that has been accept- ord, whether the Crown intends to proceed by way of ed by the Judicial Case Manager office in advance summary conviction or by indictment. This will prevent (CRIM 08 Forms and Procedure). If submitted and any uncertainty or confusion at a later stage. accepted prior to the pre-set arraignment event, the Judi- cial Case Manager will vacate the future arraignment Once counsel is retained (if an accused wishes to retain appearance. counsel), the Judicial Case Manager will ask the accused to indicate an intention concerning plea and election (if At an arraignment hearing before a judge, the judge may the Information carries a right of election). Where an call on the accused to make an election (if the accused is accused person refuses to do so, the Judicial Case Man- entitled to an election) and enter a plea. In addition, a ager will refer that person to a judge as soon as possible. judge may make inquiries or orders, or give directions to facilitate a trial or preliminary inquiry and to dispose of A document dated June 30, 2016, entitled JCM Guid- or simplify the issues. If necessary, the judge will ad- ance on Arraignment, was distributed by the Chief Judge journ the arraignment hearing to enable compliance with to Judicial Case Managers to assist them in fulfilling any order or direction. The judge may also hear applica- Criminal Procedure 31 tions, if convenient and practicable for the court and all 3. autrefois acquit (ss. 607–610, 808(2)); parties. 4. autrefois convict (ss. 607–610, 808(2)); and At the arraignment hearing, the case may be disposed of 5. pardon (s. 607). by plea and set for sentencing, adjourned for pre-trial applications, or set for trial. Where the matter is being With Crown consent, the accused may plead not guilty set for trial, counsel should be prepared to discuss the to the offence charged but guilty to any other offence probable length of the case, how many witnesses will arising out of the same transaction (s. 606(4)). It need likely be called, and whether there will be any pre-trial not be an included offence. When an accused refuses to or Charter applications. plead or does not answer directly, a plea of not guilty is entered. Once the arraignment hearing is conducted, counsel will be directed to the office of the Judicial Case Managers to For a discussion of the plea of autrefois acquit, see R. v. schedule a hearing date based on the time estimate de- Petersen (1982), 69 C.C.C. (2d) 385 (S.C.C.), in which termined at the arraignment hearing. If the judge directs the court held that the plea of autrefois acquit should it, the trial scheduler will also set a time for the hearing succeed where an accused has been placed in jeopardy of applications in respect of the case. Dates will be set at on the same matter on an earlier occasion before a court the convenience of the court, Crown witnesses, and de- of competent jurisdiction and there was a disposition in fence counsel. the accused’s favour resulting in an acquittal or dismissal of the charges. There need not be a disposition “on Defence counsel should consult the client about conven- the merits” (R. v. Riddle (1979), 48 C.C.C. (2d) 365 ient days for trial to determine if the client can take a day (S.C.C.)). off from work or school. The client may want an early trial date if detained in custody, or want to have a jail When charges are “quashed” after plea as defective, sentence or licence suspension finished by a certain time even if there has been no trial on the merits, the plea of of year or before an upcoming trip or job. Alternatively, autrefois acquit will normally be available and there will the client may want a delay to locate witnesses, to im- be few circumstances where the Crown can successfully prove their situation for sentencing purposes, or simply just re-lay the charge—the Crown must appeal (R. v. to postpone an inevitable jail sentence, fine, or licence Moore, [1988] 1 S.C.R. 1097). If the Information is suspension. quashed before plea, autrefois acquit will not lie, and the Crown may re-lay the charge (R. v. Pretty (1989), 47 When scheduling dates, counsel should also keep in C.C.C. (3d) 70 (B.C.C.A.)). In cases where there is au- mind that if there are difficulties scheduling a trial with- trefois acquit or autrefois convict, it may be productive in an acceptable time frame, the trial scheduler may refer for defence counsel to advise the Crown in advance be- the case to the judge who presided at the arraignment cause verification of the previous acquittal or conviction hearing. This is particularly important given the frame- may well result in the charge being stayed. work for assessing the reasonableness of delay under s. 11(b) of the Charter: R. v. Jordan, 2016 SCC 27. When the plea is guilty, the hearing may proceed directly to sentencing. The facts are “read in” by the Crown.  For trials in Provincial Court, delay that exceeds The defence is usually asked if it disputes the facts. Even 18 months from charge to anticipated or actual if not asked directly, it is still important that the defence end of trial is presumptively unreasonable. make it clear if a relevant fact is in dispute. Factual as-  For trials in the superior court, the presumptive sertions made in submissions are not “evidence.” A ceiling is 30 months. judge can accept a fact advanced solely through submission only if that fact is non-contentious. Any clear and Delay caused or waived by the defence does not count unequivocal dispute as to a relevant fact must be re- towards the presumptive ceiling. If delay falls below the solved by calling admissible evidence, which can in- ceiling, then to show the delay was unreasonable, de- clude credible and trustworthy hearsay: R. v. Pahl, 2016 fence counsel will need to demonstrate that it took BCCA 234 at paras. 53–56. meaningful, sustained steps to expedite proceedings. The burden is on the Crown to prove any disputed ag- Counsel should think about the effect any position they gravating fact beyond a reasonable doubt. There is a cor- take with respect to available dates may have on a future responding burden on the accused to prove any disputed s. 11(b) breach claim. Before waiving any delay, counsel mitigating fact on a balance of probabilities (R. v. Gar- must have their client’s informed instructions. diner (1982), 68 C.C.C. (2d) 477 (S.C.C.); s. 724(3)). [§3.13] Pleas Any major dispute as to facts alleged may require an adjournment in order to marshal evidence. To avoid unnecessary delay, counsel should discuss the facts on The following pleas are available to an accused: which the plea is based in advance. 1. not guilty; A trial judge has the discretion to permit a guilty plea to 2. guilty; be withdrawn at any time before the sentence is

Criminal Procedure 32 completed (R. v. Atlay (1992), 70 C.C.C. (3d) 553 mation with electable offences, the accused’s election of (B.C.C.A.); R. v. M.(D.L.), 2012 BCSC 538). a superior court forum will apply to all offences. Generally, a guilty plea should not be entered on behalf Also, even on an indictable offence where a Provincial of a client without having first canvassed all available Court judge has absolute jurisdiction, at any time before disclosure, considered and discussed with Crown the the accused has entered upon their defence, a judge who possibility of any compromise regarding the charges or determines there is good reason for the charge to be circumstances related to those charges, Crown’s position prosecuted in a superior court may decide not to adjudi- on sentence, the facts Crown intends to allege, or any cate, inform the accused of the decision (s. 555(1)), and other issues such as scheduling that might be important put the accused to an election of trial by judge or judge to the client’s decision to plead. and jury (s. 555(1.1)). If the accused is entitled to a preliminary inquiry and the accused or the prosecutor re- [§3.14] Elections quests one, the provincial court judge will continue the proceedings as a preliminary inquiry (s. 555(1.2)). This discretion is exercised sparingly but does occur from Some judges permit an accused to waive the reading of time to time (see e.g. R. v. Pappajohn (1980), 14 C.R. an Information or an election. This practice varies from (3d) 243 (S.C.C.), aff’g (1978), 45 C.C.C. (2d) 67 judge to judge. Before agreeing to waive either of these (B.C.C.A.). procedural safeguards, defence counsel must ensure that the accused fully appreciates and understands the op- For all other indictable offences (except when a direct tions available. indictment is preferred), the accused has an election as to the forum in which the trial will be held. For summary conviction offences, whether federal or provincial, the forum is the Provincial Court. The ac- An accused is put to an election on the Information as a cused has no right of election for trial in a higher court whole, and may not make separate elections on each for summary conviction offences. count in the Information (R. v. Watson (1979), 12 C.R. (3d) 259 (B.C.S.C.)). There are several offences in the Criminal Code and other federal statutes that are either indictable or summary, If an accused does not elect when put to an election un- at the choice of the Crown. These are often referred to as der s. 536, they are deemed to have elected judge and “hybrid offences.” When the accused is charged with a jury (s. 565(1)(b)). hybrid offence, the Crown has the discretion to proceed If Crown counsel exercises the Crown’s power under by summary conviction or by indictment. s. 568 to proceed by a jury trial, then the accused has no If there are mixed hybrid and summary or indictable of- election or the accused’s election becomes irrelevant. If fences in an Information, then all counts must be pro- the Attorney General prefers a direct indictment under ceeded with by the Crown in the same manner or the s. 577, the accused is deemed to have elected judge and counts will have to be severed for separate hearings (R. jury and no preliminary inquiry, though an accused may v. Chartrand, [1974] B.C.D. Crim. Conv. (C.A.) and R. re-elect to judge alone (s. 565(2)). v. Morelli (1970), 2 C.C.C. (2d) 138 (Ont. C.A.)). Under s. 567, if not all jointly charged accused elect or Indictable offences are triable in one of three forums: are deemed to elect the same mode of trial, the justice or Provincial Court judge may decline to record the elec- 1. Provincial Court (no jury); tions or deemed elections and simply hold a preliminary 2. Supreme Court without a jury; and inquiry. When this occurs, there is a deemed election of trial by judge and jury (s. 565(1)(a)). 3. Supreme Court with a jury. Part XVIII of the Criminal Code governs elections and For some offences, the court that will hear the matter is preliminary inquiries. Counsel should read Part XVIII determined automatically by operation of statute. For carefully. (See also §4.01.) In brief, if the accused is example, the offences listed in s. 469 must, subject to charged with an indictable offence punishable by im- s. 473(1), be tried by a Supreme Court judge and jury. prisonment of 14 years or more, and elects trial by a Su- In other cases, a Provincial Court judge under s. 553 of preme Court judge alone, or judge and jury, a prelimi- the Criminal Code has absolute jurisdiction over the of- nary inquiry will be held where either the Crown or the fence. On absolute jurisdiction offences, the accused has accused request it. Absent a request for a preliminary no choice as to the forum for hearing and the offences inquiry, the Provincial Court judge will set a date in Su- are triable only in the Provincial Court. However, abso- preme Court to schedule a trial. lute jurisdiction is not exclusive jurisdiction. By opera- If a preliminary inquiry is requested, the party requesting tion of ss. 468 and 469, any superior court of criminal the inquiry must define the issues to be addressed, and jurisdiction also has jurisdiction over these offences (R. the required witnesses. In addition, recent amendments v. Cave (1978), 9 B.C.L.R. 19 (S.C.)). As such, where allow the justice conducting the preliminary inquiry to absolute jurisdiction offences are joined on an Infor- limit the scope of the preliminary inquiry to specific is-

Criminal Procedure 33 sues and witnesses (s. 537(1.01)). (See Chapter 4 for preliminary inquiry, failure to take a plea after re- more on preliminary inquiries.) election may result in an acquittal being set aside (R. v. Atkinson (1977), 37 C.C.C. (2d) 416 (S.C.C.)). Unless [§3.15] Re-Election there is agreement that evidence taken on the preliminary inquiry be evidence on the trial, the evidence must Section 561 is the main provision in the Criminal Code be repeated after the plea (R. v. Matheson (1981), 59 regarding re-elections. C.C.C. (2d) 289 (S.C.C.)).

When considering re-election, timing is important. Alt- [§3.16] Interim Appearances and Pre-Trial hough in some instances the accused may re-elect as of Conferences in Provincial Court right, this right may be lost after specified time deadlines have passed, and then Crown consent will be required. This section describes both the process for pre-trial con- (See s. 561 for timelines.) ferences that has been in place for some time, and a new As a practical matter, defence counsel should contact the type of pre-trial conference introduced during the appropriate Crown counsel to discuss the proposed re- COVID-19 pandemic. election. In cases where consent is required, the Crown’s 1. Interim Appearances and Pre-Trial Conferences position might as well be known before further steps are to Ensure Trial Readiness taken, and in many cases the process will go more smoothly because a date can be agreed upon for the re- After a plea of not guilty and election (if required) election and the Crown may be able to assist in arrang- that results in the scheduling of a Provincial Court ing this date with the appropriate registry. trial, the trial scheduler may consult with counsel to determine whether a pre-trial appearance before a When the re-election is being done following committal, judge or Judicial Case Manager is appropriate to often a convenient time to do it is at the Supreme Court ensure the parties are ready for trial. trial fix date because the accused should also be present to confirm their consent. For matters scheduled to take more than eight days of court time, a judge is assigned, and a pre-trial The proper forum to hear a re-election is the court where conference will be scheduled. Pre-trial conferences the Indictment or Information will ultimately be placed are meant to ensure that the parties do not end up (R. v. Ishmail (1981), 6 W.C.B. 148 (B.C.S.C.)). needing to reschedule trial dates in order to deal If not all jointly charged accused are seeking to re-elect with unresolved issues. to the same mode of trial, the judge may decline to rec- A Judicial Case Manager may schedule an interim ord the re-election (s. 567). appearance to confirm trial readiness, including There has been some jurisprudential controversy as to where the matter is set for more than three days, whether the re-election provisions in the Code are ex- where after consultation with counsel the Judicial haustive such that an accused cannot re-elect without the Case Manager deems it appropriate, or where an Crown’s consent where statutorily required (see e.g. R. accused is self-represented. Counsel may also re- v. Diamonti (1981), 61 C.C.C. (2d) 483 (B.C.S.C.)). The quest an interim appearance, but no interim appear- weight of appellate authority now appears to hold that a ance will be set for summary matters unless the Ju- trial judge has no discretion to permit re-election in such dicial Case Manager determines it is required (2013 circumstances unless the Crown’s exercise of discretion CPD-1 CCFM Practice Direction at paras. 44–45). in refusing to consent to re-election amounts to an abuse Cases where counsel may wish to request an interim of process: R. v. E.(L) (1994) 94 C.C.C. (3d) 228 (Ont. appearance before a Judicial Case Manager or judge C.A.). A failure to provide reasons for withholding con- include cases where disclosure issues have arisen, sent does not in itself show an abuse of process (R. v. there are unanticipated Charter issues, or the time Ng, 2003 ABCA 1, leave to appeal dismissed [2004] reserved for the proceeding has become inadequate. S.C.C.A. No. 33). As a practical matter, provided a timely request is received so that witnesses are not inconven- If counsel becomes aware that it is necessary to ad- ienced and trial time is not lost, the Crown will usually journ a trial or preliminary inquiry, counsel must consent to re-election from judge and jury to judge make an application to a judge at the earliest oppor- alone, and will usually give the necessary consents to tunity (CCFM Rule 11; Form 5). facilitate a re-election for the purpose of a guilty plea In indictable matters, if an accused elects trial in before a court that is already dealing with the accused Supreme Court, then in most cases a pre-trial con- for disposition on other matters. ference will be held in that court. See §4.03 for in- Failure to follow the re-election wording in the Criminal formation about pre-trial conferences in Supreme Code precisely is not fatal: substantial compliance is all Court. that is necessary (MacKenzie). However, when an accused re-elects trial by a Provincial Court judge during a

Criminal Procedure 34 2. Pre-Trial Conferences During COVID-19 also deliver them to the Judicial Case Manager to deliver to the pre-trial conference judge. The parties During the COVID-19 pandemic, Practice Direction are encouraged to exchange materials that may as- CRIM 12 Criminal Pre-Trial Conferences During sist with resolution and trial management. Crown Covid-19 was issued (and updated effective Febru- counsel must provide a Crown Synopsis in Form 1, ary 1, 2021). The files subject to this Practice Di- a copy of the Information that the Crown is pro- rection must have a pre-trial conference after the ar- ceeding on, and any criminal record of the accused. raignment hearing and before the scheduling of a trial or a preliminary inquiry. At the pre-trial conference, all counsel must be prepared to make decisions about the resolution of the The purpose of these pre-trial conferences is to en- matter; disclosure; applications that the parties will sure only those files truly requiring a trial are set for bring at trial (e.g. Charter applications); the wit- hearing, and to manage the files that will be set for nesses the Crown intends to call at the preliminary trial in order to accurately estimate how much time inquiry or trial; admissions the parties are willing to they will require, so as to avoid trials running over make; legal issues that the parties anticipate may their scheduled dates and generating delay. It ap- arise in the proceeding; and an estimate of the time pears likely that some version of this form of pre- needed to complete the proceeding. trial conference will continue after the pandemic is over, as its focus is on addressing concerns— The pre-trial conference judge will pursue resolu- namely, inefficiencies in the criminal justice sys- tion in order to avoid the need to set trial dates, and tem—that existed before the pandemic. will canvass the issues to reduce them to only those requiring adjudication. The judge may make case The Practice Direction applies to the following management directions; confirm admissions made adult and youth criminal files in Provincial Court: on the record; confirm or change the time estimates  In the Fraser, Interior, and Vancouver Re- for trial; adjourn the matter to the Judicial Case gions, for files requiring three days or more Manager to set dates for another pre-trial confer- of trial or preliminary inquiry time, or for ence, disposition, preliminary inquiry, or trial; or files requiring at least at least one day, take any other steps consistent with the Practice Di- where both counsel request a pre-trial con- rection. ference. Consult CRIM 12 Criminal Pre-Trial Conferences  In the Northern and Vancouver Island Re- During Covid-1 for the full requirements under this gions, for files requiring three days or more Practice Direction. of trial or preliminary inquiry time, or for Note that the separate form of pre-trial conference files requiring at least one day, where both described above (at 1. Interim Appearances and counsel request a pre-trial conference. Pre-Trial Conferences to Ensure Trial Readiness) The Practice Direction only applies when the ac- may still be required later in the process. cused is represented by counsel. (Self-represented accused with trials requiring one day or more of tri- [§3.17] Assignment to a Judge and al time will have a pre-trial conference with a judge, Courtroom as described in NP 19—Court Operations During COVID-19.) All Provincial Court locations in BC have a delayed assignment scheduling model. Seven locations have an Pre-trial conferences under this Practice Direction “Assignment Court” (explained below) to better support are held via videoconference or audioconference that objective: Port Coquitlam, Vancouver (222 Main and off the record (unless otherwise ordered). The Street), Robson Square, Victoria, Kelowna, Abbotsford conferences must be attended by Crown counsel and Surrey. and counsel for the accused, and are before the pre- trial conference judge, who will not be the trial Delayed assignment is an important feature of the Pro- judge if the matter proceeds to trial. If the matter is vincial Court scheduling model. It recognizes the high resolved prior to trial, the disposition may be done collapse rate of scheduled matters, and strives to allow by the pre-trial conference judge or assigned to an- the court to make the most efficient use of its time. Ex- other judge. cept where a judge has been pre-assigned (such as where a matter is expected to take more than eight days), judg- Before the pre-trial conference, Crown counsel and es are assigned to locations, not cases. The Judicial Case counsel for the accused must have thoroughly re- Manager will schedule a case for particular days, but viewed their files and discussed with each other all will not assign a judge to the case until close to the day of the issues which will form the subject of the pre- of trial (or on the day of trial, in Assignment Court loca- trial conference. At least three business days before tions), after efforts have been made to confirm the matter the pre-trial conference, the parties must exchange is proceeding as scheduled. copies of all materials for the conference and must

Criminal Procedure 35 In locations with an Assignment Court, at the time of It is usually the Crown who needs to request an ad- charge approval Crown counsel will designate a file as a journment because a witness is absent. If the test in Dar- special assignment (“SA”), general assignment (“GA”), ville has been met, and if it is the first such application, or summary proceedings court (“SPC”) file. SPC files the Crown will likely obtain the adjournment. are matters that are less complex and with time estimates Both Crown and defence counsel should strive to make of a day or less. When scheduled, each SPC file is given any applications to adjourn a trial date well in advance a single time slot in the summary proceedings court. of the first day scheduled for trial or preliminary hearing. When a file is designated SA or GA, it will be assigned The CCFM Rules require counsel to apply to a judge at to a particular prosecutor prior to arraignment if not the earliest opportunity after becoming aware that an sooner. If no judge is pre-assigned, then when the Judi- adjournment of trial or preliminary inquiry is necessary cial Case Manager schedules the matter for trial, prelim- (Rule 11). In order to facilitate that, the 2013 CPD-1 inary hearing, or disposition the matter is returnable to CCFM Practice Direction also notes that the court ex- Assignment Court. pects counsel to contact the Judicial Case Manager as In Assignment Court, a Judicial Case Manager will as- soon as possible in the event of a contested or uncontest- sess readiness before a case is assigned to a judge and ed adjournment application (para. 39). At least two days courtroom. Assignment court opens at 8:45 a.m. and before the application for an order to adjourn is to be cases are assigned based on who is ready first. Counsel heard, notice of the application in Form 5 must be given is required to be present for the calling of the list at to the court and counsel, unless a judge dispenses with 9:00 a.m. to answer questions about readiness (an agent notice (CCFM Rule 11(3)). If defence counsel gives ear- is not acceptable). Cases that are ready to proceed will ly notice of an application to adjourn a trial or prelimi- be assigned to a particular courtroom and judge for a nary inquiry, the Crown will be more likely to consent, 9:30 a.m. start. Cases that are not ready to proceed may although the Crown may still ask the defence to formally be stood down to the office of the Judicial Case Manag- waive delay. However, it is not always possible for ers, but counsel who are not ready to proceed until later counsel to say with certainty whether an adjournment in the day risk a courtroom being unavailable. As such, will be necessary before the first day of trial, in which opposing counsel should discuss the case prior to the case the adjournment application will have to be brought Assignment Court date, and defence counsel should ar- on the day of trial. rive with instructions from their client. When there are objections to the adjournment, both de- Counsel should make all possible efforts to remove cases fence and Crown counsel should place their objections to from the Assignment Court list in advance if they know the delay, and the reasons for them, on the record for use a guilty plea will be entered or a trial will otherwise not on future s. 11(b) Charter applications. be proceeding. Crown and defence are encouraged to use There may be tactical reasons for the defence not to op- the Consent Requisition form so they will not have to be pose the Crown’s application to adjourn. It may be that in Assignment Court for 9:00 a.m. if their trial is not such an adjournment works to the accused’s advantage. proceeding as scheduled. It may also serve some benefit in discussions or negotia- [§3.18] Adjournment tions with Crown for the resolution of the file, or some issue associated with the file. However, counsel should be mindful of the impact that not opposing a Crown ap- Adjournment requests may arise before the first day plication to adjourn may have on any future claim of a scheduled for trial, on the first day scheduled for trial, or breach of their client’s s. 11(b) rights. When counsel is partway through the hearing and for various reasons, agreeing to or not opposing a Crown application to ad- including the unavailability of counsel and witnesses. journ because it seems inevitable that it will succeed, but To be entitled to an adjournment on the ground that wit- delay is still of concern to their client, counsel will wish nesses are absent, a party must show that: to have that noted on the record, and explore if there is  the absent witnesses are material witnesses in any way to minimize the amount of delay for the pur- the case; pose of any future application under the Charter.  the party applying has been guilty of no laches In indictable matters, whether in Provincial or Supreme or neglect in omitting to endeavour to procure Court, when a trial or preliminary hearing date is ad- the attendance of the witnesses; and journed, if the client appears or defence counsel is appearing pursuant to a counsel designation notice, the  there is a reasonable expectation that the wit- matter can be adjourned directly to a new date. In sum- nesses can be procured at the future time to mary conviction matters, the lawyer may appear as agent which it is sought to put off the trial. to adjourn a trial, when the lawyer has the client’s ex- See R. v. Darville (1956), 116 C.C.C. 113 at 117 press instruction to do so, and properly and adequately (S.C.C.). informs the client. Otherwise, the client must still appear on the old or an intervening date to be formally adjourned to the new date.

Criminal Procedure 36 As set out above, the Crown and the court may ask Criminal Code concern joinder of counts in an Infor- whether the accused is prepared to waive their rights mation, and s. 591(3) concerns severance of accused. under s. 11(b) of the Charter in respect of the time peri- The prosecution has a broad discretion to determine how od between the date of the adjournment request and any charges are laid. The courts generally permit multiple new trial date set. Defence counsel must ensure that the counts and multiple accused when there is a legal or client fully understands the ramifications of waiving factual nexus between the incidents or parties. Two such rights, in case the client later claims to not have accused may be joined on one Information even though been aware of their rights and tries to invoke this Char- they are not jointly charged on a common count, if there ter right at a later point in the proceedings. is a factual nexus supporting the charges (R. v. Kennedy [§3.19] Motion for Particulars (1971), 3 C.C.C. (2d) 58 (Ont. C.A.)). The court may only sever counts or accused when it is satisfied that the ends of justice require it. After reviewing the Information or Indictment, defence counsel may want to make a motion for particulars. Sec- The severance application should be brought before the tion 587 of the Criminal Code defines what is meant by trial judge. A Provincial Court judge on a preliminary formal particulars. A distinction should be drawn be- inquiry has no jurisdiction to sever counts. Severance is tween “particulars” as defined in s. 587, and “disclosure” granted after the election is put to the accused and only if of the sort made by Crown counsel to defence counsel the trial proceeds (R. v. Anderson (1971), 2 C.C.C. (2d) before trial: “Particulars” constitute a precise statement 449 (B.C.S.C.)). The application is usually presented at of the essential elements of the charge faced by the ac- the beginning of the trial, although case management cused. “Disclosure” refers to the relevant information in practices may affect this timing. the Crown’s possession or control related to the alleged Severance of counts is usually sought on the basis that offence. (For a discussion of the disclosure of particu- the prosecution is too complex to be defended readily, lars, see §3.03.) there is no factual or legal nexus between the counts, the The court can order particulars under s. 587 but these counts prejudice the accused because there is a risk evi- orders are extremely rare. Section 587 contemplates that dence will be misapplied on various accounts or findings these “formal” particulars be delivered in writing at trial of guilt on various counts will prejudice consideration of and that they be entered in the trial record. Once entered the evidence on other counts, and the accused wishes to in the trial record these particulars assume the same im- testify on some counts but not others. portance as the allegations made in the Information or Common grounds for applications to sever accused are Indictment itself. The Crown is bound to prove these that one accused wants to call the co-accused as a wit- particulars beyond a reasonable doubt, with failure to do ness at the trial, the defences of the accused are antago- so resulting in acquittal. The Crown generally opposes nistic, and evidence which is admissible against one ac- applications for particulars because the Crown must then cused but inadmissible against the other implicates the prove these further elements of the charge. Note that a other accused (for example, a confession). Provincial Court judge at a preliminary hearing has no power to order particulars (R. v. Hayes, Ex parte Chew, The arguments against severance of counts or accused [1965] 2 C.C.C. 326 (Ont. H.C.)). are that it results in multiplicity of trials and inconsistent verdicts. Generally, the informal particulars provided by Crown counsel by way of disclosure far exceed those that would In R. v. Clunas (1992), 70 C.C.C. (3d) 115, the Supreme be ordered by the court under s. 587, so applications for Court of Canada ruled that a trial court can conduct a particulars are rarely made. single trial on two separate Informations when the parties consent. This also permits simultaneous multiple When a charge alleges “with intent to commit an indict- trials on indictable and summary conviction offences at able offence,” it has been common for defence counsel the same time. to ask for particulars specifying the indictable offence. The Ontario Court of Appeal held in R. v. Khan (1982), A charge under the Criminal Code that is proceeded 66 C.C.C. (2d) 32, that it would be inappropriate to re- with summarily may be joined with a provincial sum- quire the Crown to furnish particulars limiting the In- mary conviction offence (R. v. Massick (1985), 21 dictment so as to charge an intent to commit one offence C.C.C. (3d) 128 (B.C.C.A.)). and not another. [§3.21] Stays of Proceedings, Withdrawals [§3.20] Joinder and Severance and Dismissals for Want of Prosecution After reviewing the Information or Indictment, defence counsel may also want to consider applying for either Stays of proceedings in the case of indictable offences joinder or severance. Joinder and severance apply to are dealt with under s. 579 of the Criminal Code. both counts and accused. Sections 589 and 591 of the

Criminal Procedure 37 Section 795 makes s. 579 applicable to stays of retained to do a job for the client, and should have the proceedings of summary conviction offences as well. freedom to do the job in their own way, according to the rule of law and the ethical obligations of the lawyer to In the Provincial Court, Crown stays are “entered” by the profession and to the court. The lawyer takes Crown counsel simply directing the court clerk (either in instructions but does not follow orders. It is solely on or out of court) to make an entry on the Information that this basis that the interview with the client begins. proceedings are stayed. The power to enter a stay of proceedings under s. 579 of the Criminal Code is totally The objective of the interview is to obtain information within the discretion of the prosecutor; neither the judge about the following matters: nor defence counsel have any say in the matter. 1. Client Proceedings may be recommenced within one year after the date proceedings were stayed, except that summary Name, date of birth, marital status, education, em- conviction proceedings must be recommenced within the ployment history, citizenship, previous police con- original time limitation period. If the Crown fails to re- tacts (as accused, victim or witness), roots in the commence indictable proceedings within a year of the community, immigration status, medical disabilities date the stay was entered, the Crown is not precluded or impairments, doctors’ names, references, social from commencing a new process or from issuing a direct contacts, etc. Much of this information will have indictment. been obtained when securing pre-trial release and will be useful when speaking to sentence. This is a The Crown has a right of withdrawal separate and dis- useful way to begin the interview since the client tinct from the ability to direct a stay of proceedings. feels more at ease when providing this information There is no provision in the Criminal Code allowing the than when speaking about the offence. “withdrawal of the Information.” However, the Attorney General’s authority to withdraw an Information at its 2. Offence discretion prior to plea and with leave of the presiding judge after plea has been recognized in the case law: see Obtain the client’s version of the incident. There is R. v. Carr (1984), 58 N.B.R. (2d) 99 (N.B.C.A.); R. v. a wide variation in practice and technique in how McHale, 2010 ONCA 361. This procedure is not com- you obtain it. Ethical aspects are a major issue here. monly used by Crown counsel in BC, who instead direct The following are some approaches: a stay of proceedings. If a prosecutor were to withdraw a  Let the client say anything, no matter how charge, the customary procedure is for the prosecutor to inculpatory. Such statements during the in- apply to the judge for “leave to withdraw” the charge, terview are not on oath. If the client later giving a short explanation as to why. At times, the com- contradicts themselves in the witness box, plainant will be asked to tell the court their own position it can be rationalized that it is the “state- respecting the application. ment on oath that counts,” and the lawyer On occasion, when the Crown is not able to proceed on should not be concerned about the contra- the trial date, the Crown may, instead of entering a stay diction. of proceedings, allow a matter to be dismissed for want  Let the client say anything, and if the client of prosecution. This may occur, for example, when a incriminates themselves and insists on giv- Crown adjournment request has been refused, because it ing exculpatory evidence inconsistent with is considered by some to be an affront to the judge to what they have said to be the truth, they then stay the charge. When dismissing a charge for want will be referred to other counsel. of prosecution, the Information is read to the accused, an election is taken if necessary, and the accused then  Tell the client not to say anything if the cli- pleads not guilty. No evidence is called, and the charge ent will be incriminating themselves. Ad- is dismissed. vise the client as to the available defences and what facts would support such defenc- [§3.22] Interviewing Clients es, and then ask for their rendition of the events. Ideally, defence counsel should conduct two distinct Since the interview raises ethical and other profes- interviews with the client. The pre-bail interview will sional issues, the approach that will be taken on the not include the depth of detail necessary for the pre-trial interview should be carefully thought out before the interview. At the pre-trial stage, defence counsel may interview starts. permit the client some latitude in venting frustrations, but counsel should control the interview. Counsel must 3. Arrest, Detention and Searches control the client; control the mood, manner and method of the interview; control the facts of the case (by limiting Obtain information on these matters from the client. discussion to certain matters); and control the issues that Pay attention to possible Charter violations. are emerging. The lawyer is an independent contractor

Criminal Procedure 38 4. Statements and Confessions lawyer. The client can then be advised, in a general way, as to the procedural steps that will occur. Whether the statements or confessions were made to police or otherwise, obtain full details with par- A final, important matter is agreeing on your fee. Pro- ticular attention to voluntariness (threats, promises, vide the client with as accurate an estimate as possible of oppression, operating mind, or other trickery) and the ultimate cost of conducting the defence. In addition, possible Charter violations (including breach of the advise the client of how and when the client should right to counsel enshrined in s. 10 of the Charter). make payment, and the extent to which you can expend funds for the client. Advise the client that if the client 5. Evidence does not honour the fee obligation, you will apply to withdraw from the record. Dealing with the matter of Were fingerprints, photographs, or blood, hair or fees at the first opportunity, in a forthright manner, re- urine samples taken? Was a lineup held, and if so, duces the possibility of misunderstandings later. under what circumstances? See Chapter 5. Counsel acting in criminal matters should also be aware 6. Real Evidence that they cannot withdraw for non-payment if there is insufficient time before trial for the client to obtain the Did the police seize any documents, clothing, services of another lawyer and for that other lawyer to firearms, other weapons, money, contraband, or prepare adequately for trial, and an adjournment would property of any nature, and if so, under what be adverse to the client’s interests (BC Code rule 3.7-5). circumstances? The rights of counsel to withdraw and obligations not to do so in certain situations are discussed in more detail in 7. Physical Injuries or Complaints §3.27. Obtain full details of physical injuries or The following would be an acceptable format for inter- complaints. viewing the client (see also the much more detailed “Criminal Procedure” and “Client Identification and 8. Witnesses and Defence Evidence Verification Procedure” checklists in the Law Society’s As defence witnesses and evidence often vanish Practice Checklists Manual): quickly, obtain full details including names, ad- (a) verify the client’s identity as required by Law dresses and whereabouts of incident witnesses. Re- Society Rules 3-98 to 3-110, and obtain ante- view the location and preservation of real evidence, cedents to help prepare the case; such as receipts or photographs. Consider suggesting to your client that they should tell defence wit- (b) explain the Information to the client so that the nesses to make notes to themselves of their evi- client understands the nature of the charges; dence while it is still relatively fresh in their minds. (c) tell the client about the police particulars; Although it is preferable that defence counsel communicate directly with each of the defence wit- (d) ask the client to tell their own side of the story nesses, often the client is in a better position to and allow the client to give the narrative without speak with such people. interruption, categorizing the issues and defences; 9. Advice for Client (e) ask the client to repeat the story, focusing on the Depending on the background of the client, it may critical issues; be necessary to provide basic information on the (f) give the client advice and decide on a course of workings of the legal system and what steps will be action; and taken in the prosecution (for example, options for trials, preliminary hearing, etc.). Practical steps the (g) discuss the fee. client can take should also be considered. It may be The above information will help when preparing the case useful at an early stage to plan a course of action to for hearing and will also be relevant for sentencing. If cover client problems such as alcohol and drug you obtain full information at this stage, it will be un- abuse, if the client is willing to start a rehabilitative necessary to have more than a very short interview when program that will assist in the event of ultimate preparing to speak to sentence. conviction or guilty plea. The importance of witnesses, and of appearing for court, should also At this time, you might also canvass these matters: be covered.  discussing possible sentences with the client After the above information is obtained, the client (which should be canvassed at the first should be advised that under no circumstances should interview); they discuss these matters with anyone other than the  getting suggestions from the client as to which type of sentence the client would prefer;

Criminal Procedure 39  discussing the client’s ability to pay a fine; [§3.24] Witnesses  discussing whether the client needs time to pay an anticipated fine; and There are three basic categories of witnesses: incident witnesses, expert witnesses, and character witnesses. As  discussing whether the client would prefer incident witnesses and evidence often vanish quickly, straight or intermittent incarceration. obtain full details, including names, addresses and pre- For specific advice about preparing to speak to sentence, sent whereabouts, as soon as possible. Eyewitnesses see Chapter 8. should be interviewed without delay. Obtain a written statement from them. It is good practice to obtain from [§3.23] Witness and Client Statements these witnesses not only their version of the incident, but also sufficient antecedents to remember the witness and When preparing for a hearing, Crown and defence coun- provide you with sufficient background to identify the sel will want to closely review the statements of all wit- witness to the court. nesses and the accused. The Crown is required to pro- Be sure to make it clear to the accused whether they are vide defence counsel with copies of all statements responsible for arranging for all incident and character relevant to the case. These statements include written witnesses to attend interviews. statements given by civilian Crown witnesses to the police. Similarly, the Crown is also required to provide the Section 698(1) sets out the test for obtaining a subpoena: defence with copies of all statements that have been see R. v. Blais, 2008 BCCA 389. When it is necessary to made by the accused and any co-accused. subpoena a witness, defence counsel should have the subpoena typed on forms that are available at the court When witnesses provided written statements, defence registries. The subpoena should comply with Form 16 counsel will want to have copies of them. The form and (s. 699). Deliver the subpoena to the appropriate court condition of the document on which the statement is registry to be signed by a justice of the peace (Provincial written and the character of the handwriting itself will Court) or clerk of the court (Supreme Court). Then, ar- give some indication of the circumstances under which range for service. the statement was taken. Also, at trial, counsel will want to check that the evidence provided by the witness in For service of a subpoena to be valid, the subpoena must court is consistent with the statement. be served by a peace officer (ss. 701 and 509 of the Criminal Code, taken together). As such, if counsel will When a statement has been recorded or videotaped, it is be seeking a “material witness” warrant to enforce the important to listen to or watch the statement, as there appearance, the subpoena must be served by a peace of- may be important features of the witness’s demeanor, ficer. Notwithstanding the broad definition of “peace language, or presentation that will assist counsel in officer” in s. 2 of the Criminal Code, it appears that preparing to examine or cross-examine the witness that “Parliament intended to restrict its meaning to a person may not be evident from simply reading a transcript. employed in an official capacity to serve a Crown- The witness may use a copy of the statement to help re- appointed officer or a court” (R. v. Burns (2002), 170 fresh their memory and, if so, may be asked to produce it C.C.C. (3d) 288 (Man. C.A.)). in court for inspection and to be cross-examined upon it. Sheriff services do not normally advise the Crown of Statements made by a witness who later recants at trial defence subpoenas, but in the rare case when the defence may themselves be given in evidence and used for the is particularly anxious to ensure that the Crown not learn truth of those statements as exceptions to the hearsay the whereabouts of a witness, counsel might consider rule—see the discussion in Chapter 5, §5.06. serving subpoenas by other means. The Crown, for ex- Remember that the trial judge has discretion, upon ap- ample, mails subpoenas to some willing witnesses. Simi- plication by either party, to admit the witness statement larly, an accused or someone on the accused’s behalf can as an exhibit. This should be done rarely: the damaging give a subpoena to a witness. However, this form of ser- nature of a statement so admitted may outweigh the advice relies on the witness’s goodwill or ignorance be- vantages gained by inconsistencies disclosed. An edited cause if the witness does not appear, no “material wit- version may be made an exhibit instead of the entire ness” warrant can be obtained to enforce the appearance statement (R. v. Rodney (1988), 46 C.C.C. (3d) 323 (see s. 698(2)). (B.C.C.A.)). When the registry issues (signs) the subpoena, no copy is Due to illness or absence abroad, a witness may not be kept and defence counsel need not file the copy with the available to give their evidence at the time of trial. In completed affidavit of service, unless a material witness such circumstances, counsel should consider making an warrant is being sought for a witness who fails to appear application to obtain the witness’s evidence on (see s. 698(2)). In such cases, when a subpoena has been commission pursuant to ss. 709 and 712 or to permit the properly served and the witness is material, the court witness to testify by audio or video link pursuant to will normally grant an adjournment to allow time for the ss. 714.1–714.8. witness to be arrested on the warrant.

Criminal Procedure 40 When interviewing witnesses (and clients who are going [§3.26] Character Witnesses to testify), it may be useful to simulate some cross- examination questions and to go through questions to be Defence counsel can sometimes overlook the importance asked in chief. This is not to coach answers, but rather to of using character witnesses. Effective character evi- make witnesses aware of and comfortable with the pro- dence goes to the improbability of the accused commit- cess, and to test their demeanour in assessing whether to ting the offence and to the accused’s credibility if the call them. accused gives evidence (R. v. Tarrant (1981), 63 C.C.C. (2d) 385 (Ont. C.A.); see also R. v. H.(C.W.) (1991), 68 Counsel must not advise a witness to refuse to com- C.C.C. (3d) 146 (B.C.C.A.)). municate with an opposing party or the party’s lawyer as “there is no property in a witness.” However, it is not Before calling this type of evidence, carefully consider improper for counsel to advise a witness that if the wit- what the Crown might be able to call in rebuttal. The ness decides, for any reason, that they do not want to be accused or any witness, including prosecution witnesses interviewed by either Crown or defence counsel, they during cross-examination, may put character in issue by cannot be compelled to submit to an interview before asserting the accused is of good character. This allows testifying at either a preliminary inquiry or trial. the Crown to call rebuttal evidence of bad character. The particulars as provided by the Crown seldom Character witnesses are often presented without enough contain the addresses of Crown witnesses. Counsel who preparation so that their evidence is not given in the wish to interview a Crown witness may ask the most effective and convincing manner. Many defence prosecutor to disclose the contact information for those counsel seem unsure of exactly what evidence the char- witnesses whom defence counsel may want to interview. acter witness should give. Preparing a witness is often However, the prosecutor will likely have concerns about done at the last minute. It is very important to have a both the safety and privacy of witnesses. Therefore, thorough interview with character witnesses so that they Crown counsel will likely relay the defence request to are prepared to give evidence on the following four mat- the witness who can then decide whether to call defence ters: counsel. Alternatively, defence counsel may decide to 1. the character witness’s own credibility and repu- bring an application for disclosure of the witness contact tation (this must be established as a foundation information: R. v. Pickton, 2005 BCSC 967; R. v. to the rest of their evidence); Charlery, 2011 ONSC 2952. 2. the witness’s contact with and exposure to the Defence counsel should take great care to ensure their accused person; client does not get into a situation in which an allegation of tampering with a Crown witness is made. Although 3. the witness’s ability to comment on the ac- “there is no property in a witness,” it may be wise to cused’s general reputation in the community for seek the Crown’s cooperation when arranging defence the character trait involved; and interviews with Crown witnesses. 4. the general reputation of the accused in the The Crown must disclose all potential witnesses to the community regarding the relevant character trait. defence (R. v. Franks (1991), 67 C.C.C. (3d) 280 (B.C.C.A.)). Having done so, the Crown is under no ob- [§3.27] Withdrawal as Counsel ligation to call a witness who would contradict or impeach other Crown evidence, unless that witness is es- Counsel do not have an unfettered right to withdraw. sential to the unfolding of the narrative. The fiduciary nature of the solicitor-client relationship means that counsel is constrained in their ability to with- [§3.25] Expert Witnesses draw from a case once they have chosen to represent an accused: R. v. Cunningham, 2010 SCC 10 at para. 9. The possibility of using expert witnesses is often over- These constraints are outlined in the rules of professional looked. When preparing for trial, defence counsel should conduct issued by the provincial or territorial law socie- consider how to make better and more frequent use of ties. expert evidence. If the decision is made to use expert Section 3.7 of the BC Code governs the right of counsel evidence, the expert should be properly prepared to en- to withdraw from criminal cases (and from other mat- sure that they give evidence in the most effective and ters). See specifically rules 3.7-4, 3.7-5, 3.7-6 and com- understandable manner. Unfortunately, some experts use mentary [1] (“Withdrawal from Criminal Proceedings”): incomprehensible language and tend to assume everyone understands what they say. This problem can be resolved 3.7-4 If a lawyer has agreed to act in a criminal case by a careful interview. and the interval between a withdrawal and the trial of the case is sufficient to enable the client to obtain Section 657.3 sets out the provisions governing expert another lawyer and to allow such other lawyer ade- evidence called by both the Crown and defence. For quate time for preparation, the lawyer who has more on expert evidence, also refer to Chapter 5, §5.08. agreed to act may withdraw because the client has

Criminal Procedure 41 not paid the agreed fee or for other adequate cause Examples of a client instructing the lawyer “to act con- provided that the lawyer: trary to professional ethics” would be when a client indicates to a lawyer that the client intends to offer false tes- (a) notifies the client, in writing, that the lawyer timony or intends to suborn the perjury of a witness. is withdrawing because the fees have not been paid or for other adequate cause; The technical manner of withdrawal is governed by rules 3.7-8 and 3.7-9 of the BC Code. A lawyer must promptly (b) accounts to the client for any monies notify the client, other counsel and the court or tribunal received on account of fees and of the lawyer’s withdrawal from a file (rule 3.7-9). disbursements; The Law Society Ethics Committee3 recommends that a (c) notifies Crown counsel in writing that the lawyer who proposes to withdraw because of a client’s lawyer is no longer acting; failure to comply with the financial terms of a retainer (d) in a case when the lawyer’s name appears on should take the following steps: the records of the court as acting for the ac-  advise the client in writing that the lawyer will cused, notifies the clerk or registrar of the apply to withdraw from the case unless the client appropriate court in writing that the lawyer provides the necessary retainer by a certain date. is no longer acting; and The date must be one that leaves the client (e) complies with the applicable rules of court. enough time to retain other counsel if the client is unable to come up with the necessary funds; 3.7-5 If a lawyer has agreed to act in a criminal case or and the date set for trial is not such as to enable the client to obtain another lawyer or to enable another  act for the client in a limited capacity only, and lawyer to prepare adequately for trial and an do not go on the record for the client until the adjournment of the trial date cannot be obtained client has provided the necessary retainer for the without adversely affecting the client’s interests, the trial or other matters requiring representation. lawyer who agreed to act must not withdraw because In criminal matters, a judge may exercise their discretion of non-payment of fees. to prevent withdrawal by counsel if the withdrawal is a 3.7-6 If a lawyer is justified in withdrawing from a result of non-payment of the lawyer’s fees: Cunningham. criminal case for reasons other than non-payment of Where counsel seeks to withdraw far enough in advance fees and there is not a sufficient interval between a of any scheduled proceedings and an adjournment will notice to the client of the lawyer’s intention to with- not be necessary, the court should allow the withdrawal draw and the date on which the case is to be tried to without inquiring into counsel’s reasons for withdrawing enable the client to obtain another lawyer and to en- (para. 47). In such cases, it may be that an application to able such lawyer to prepare adequately for trial, the withdraw is not required; rather counsel may withdraw first lawyer, unless instructed otherwise by the cli- by notifying the client, the Crown and the registry. ent, should attempt to have the trial date adjourned However, if timing is an issue (i.e. an adjournment of the and may withdraw from the case only with the trial is required), counsel should attend court to apply to permission of the court before which the case is to withdraw. In those circumstances, the court is entitled to be tried. inquire further (para. 48). Commentary [1] If circumstances arise that, in the If counsel is withdrawing for ethical reasons, the court opinion of the lawyer, require an application to the must grant the request to withdraw (para. 49). Counsel court for leave to withdraw, the lawyer should may cite “ethical reasons” as the reason for withdrawal promptly inform Crown counsel and the court of the if, for example, the accused is requesting that counsel act intention to apply for leave in order to avoid or min- in violation of their professional obligations, or if the imize any inconvenience to the court and witnesses. accused refuses to accept counsel’s advice on an important trial issue (para. 48). However, if the real reason In some circumstances a lawyer is obliged to withdraw. for the withdrawal is non-payment of fees, counsel can- This is governed by rule 3.7-7 of the BC Code, which not represent to the court that they seek to withdraw for states: “ethical reasons” (para. 48). 3.7-7 A lawyer must withdraw if: (a) discharged by a client; (b) a client persists in instructing the lawyer to act contrary to professional ethics; or

(c) the lawyer is not competent to continue to 3 Material in this section is reproduced from “Withdrawal of handle a matter. counsel in criminal matters – implications of R. v. Cunningham” in Benchers’ Bulletin, Summer 2010 at pp. 16–17. Edited for PLTC.

Criminal Procedure 42 If the disclosure of information related to the payment of As the timeliness of the application for withdrawal is a the lawyer’s fees is unrelated to the merits of the case factor that may influence the court’s decision whether to and does not prejudice the accused, the lawyer may inquire into the reasons for the withdrawal, counsel properly disclose such information to the court as the should consider bringing their applications early enough non-payment of legal fees does not attract the protection in the proceedings that an adjournment of the trial will of solicitor-client privilege (para. 31). However, in either not be necessary. When a lawyer decides to withdraw in the case of withdrawal for ethical reasons or non- a way that contravenes section 3.7 of the BC Code, the payment of fees, the court must accept counsel’s answer Benchers may take disciplinary action. at face value and not enquire further so as to avoid If a lawyer’s reason for withdrawal goes to the merits of trenching on potential issues of solicitor-client privilege the case or would cause prejudice to the client, solicitor- (para. 48). client privilege may attach to the information: Cunning- Where counsel is applying to withdraw for non-payment ham at para. 31. The Law Society Ethics Committee of fees, the court may exercise its discretion to refuse suggests a lawyer may give the following explanations counsel’s request. The court’s discretion must be exer- to the court: cised “sparingly” and only when necessary to prevent What can lawyers say to the court? serious harm to the administration of justice. “Harm to the administration of justice” is not simply administra- … tive inconvenience, but rather recognizes that there are If the lawyer’s withdrawal is for ethical reasons other persons affected by the ongoing and prolonged criminal proceedings (i.e. complainants, witnesses, ju- If a lawyer seeks to withdraw from a case because rors and society at large) (para. 51). the lawyer is in a conflict, has received instructions from the client that require the lawyer to cease In Cunningham at para. 50, the Supreme Court of Cana- acting or for other reasons relating to the lawyer’s da set out the following non-exhaustive list of factors ethical obligations, the lawyer may advise the court that a court should consider when determining whether that they are withdrawing “for ethical reasons.” allowing withdrawal would cause serious harm to the administration of justice: If the lawyer’s withdrawal occurs under BC Code 1. feasibility of the accused to represent them- rule 3.7-2 selves; In other circumstances, if the lawyer is permitted to 2. other means of obtaining representation; withdraw under section 3.7 of the BC Code, but the circumstances do not engage the lawyer’s ethical ob- 3. impact on the accused from delay in proceed- ligations, the lawyer may be permitted to advise the ings, particularly if the accused is in custody; court that the lawyer’s reasons for withdrawing do 4. conduct of counsel, e.g. if counsel gave reasona- not involve the lawyer’s financial arrangements with ble notice to the accused to allow the accused to the client. Such circumstances could occur under seek other means of representation, or if counsel rule 3.7-2 of the BC Code which permits a lawyer to sought leave of the court to withdraw at the ear- withdraw when there has been a serious loss of con- liest possible time; fidence between lawyer and client. Commentary [1] to rule 3.7-2 states: 5. impact on the Crown and any co-accused; A lawyer may have a justifiable cause for 6. impact on complainants, witnesses and jurors; withdrawal in circumstances indicating a 7. fairness to defence counsel, including considera- loss of confidence, for example, if a lawyer tion of the expected length and complexity of is deceived by the client, the client refuses to the proceedings; and accept and act upon the lawyer’s advice on a significant point, a client is persistently un- 8. the history of the proceedings, e.g. if the accused reasonable or uncooperative in a material re- has changed lawyers repeatedly. spect, or the lawyer is facing difficulty in The application of the above factors must be undertaken obtaining adequate instructions from the cli- in a manner consistent with the “last resort” nature of the ent. However, the lawyer should not use the remedy. The threshold for refusing leave to withdraw is threat of withdrawal as a device to force a a high one (para. 54). Courts should not interfere with hasty decision by the client on a difficult counsel’s withdrawal unless it is necessary to do so in question. order to prevent serious harm to the administration of justice (para. 45). However, a court’s order refusing If the lawyer’s withdrawal is for non-payment of fees counsel’s request to withdraw may be enforced by the If a lawyer seeks to withdraw because a client has court’s contempt power (para. 50). failed to pay the lawyer’s fees, the lawyer must disclose that information to the court when asked to

Criminal Procedure 43 explain the withdrawal. (See rule 3.7-9.1 and commentary [1]). What if a lawyer cannot disclose the reason for withdrawal? If a lawyer is unable to answer a court’s request for the reason for withdrawal because the reason goes to the merits of the case or the client will be prejudiced by disclosing the information, the lawyer should simply advise the court of that fact. A lawyer who expects to be in such a position may want to consult a Bencher or Law Society Practice Advisor. When must counsel appear in court to withdraw from a criminal matter? If counsel’s withdrawal raises no issue about adjournment of the case, counsel may withdraw from a criminal case by notifying the client, the Crown and the appropriate registry of the withdrawal. If the withdrawal may raise such an issue, however, counsel should attend at court to withdraw.

Criminal Procedure

46 Chapter 4 The judge can also limit the issues and witnesses at the preliminary inquiry (s. 537). 1 The Provincial Court Criminal Caseflow Manage- The Trial ment Rules (the “CCFM Rules”) are in effect throughout British Columbia and provide for a simplified process of appearances and scheduling hear- [§4.01] The Preliminary Inquiry ings and trial dates where such matters are uncontested. The CCFM Rules are supplemented by Prac- tice Directions issued by the Chief Judge. In 2013, 1. Election Procedure the authority of Judicial Case Managers (also called When an accused who is charged with an indictable “JCMs”) was expanded to enable most non- offence punishable by 14 years or more of impris- contested appearances to occur before a JCM. Both onment elects to have a trial in Supreme Court, ei- the CCFM Rules and various Practice Directions ther before a judge alone or a judge and jury, the provide for a simplified process which utilizes con- Provincial Court judge who takes the accused’s sent remands and arraignment to allow counsel to election (or another judge of the same court) will facilitate initial appearances. hold a preliminary inquiry if the accused or Crown Practice Directive CRIM 02 requires that an ar- requests one. raignment hearing be held for all indictable matters. An accused charged with multiple counts on an In- Disclosure, admissibility issues, Charter arguments formation may be entitled to request a preliminary and possible admissions are discussed at the ar- inquiry for some counts on the Information but not raignment hearing. Elections pursuant to s. 536(2) others. For example, where both aggravated assault and 536(2.1) of the Criminal Code must be taken at and assault with a weapon are charged on the same the arraignment hearing, and all preliminary inquiry Information and the election is made for a Supreme procedures described in ss. 536(4) and 536.3 will Court trial, a preliminary inquiry can only be re- be completed at that hearing (CCFM Rules, Rule 8 quested with respect to the count alleging aggravat- and Practice Directive CRIM 02). ed assault. The election must be recorded under In addition, the court on its own motion, or at the s. 526(2) for the aggravated assault count and request of counsel, may order a “focusing” hearing. s. 526(2.1) for the assault with a weapon count. While a focusing hearing is not mandatory, the An accused who wants a preliminary inquiry must purpose is to help the parties identify the issues on request one when electing the mode of trial. If no which evidence will be given at the preliminary in- request for a preliminary inquiry is made, the jus- quiry, help the parties identify the witnesses to be tice is required to fix a date for trial in the event of heard, and encourage the parties to consider any a Provincial Court election, or a date to attend to other matters that would promote a fair and expedi- the Superior Court to fix a date for trial if there has tious inquiry (s. 536.4). The result of the focusing been an election for trial in that place (see hearing, including any admissions, is recorded on s. 536(2),(4), and (4.3)). Where there are jointly the record. The judge who conducts the preliminary charged accused, a request by one accused for a inquiry will also conduct the focusing hearing. preliminary inquiry triggers a mandatory prelimi- Whether or not a focusing hearing is held, the pros- nary inquiry by all co-accused (s. 536(4.2)). ecutor and the accused may agree to limit the scope If the accused requests a preliminary inquiry, coun- of the preliminary inquiry to specific issues. This sel for the accused must provide the court and the agreement is to be filed with the court and will de- Crown with a statement that identifies the issues on termine which issues must be considered regarding which the requesting party wants evidence to be the test for committal to trial. given at the inquiry and the witnesses that the re- 2. Election Considerations—Trial or Preliminary questing party wants to hear (s. 536.3). The request Inquiry? for witnesses is intended to force counsel to think about whom they really want to hear from and does While the strict purpose of a preliminary inquiry is not affect the ultimate discretion of the prosecution simply to determine if there is sufficient evidence as to who it will call on the preliminary inquiry. to put the accused on trial (s. 548(1)), its practical value to the accused is much greater. When properly conducted, a preliminary inquiry allows the accused’s counsel to hear and test the evidence that 1 Patti Tomasson, Crown Counsel, reviewed this chapter in the Crown will lead at trial. March 2021 and updated it in 2020 and 2018. Previously updated by Michael J. Brundrett (2010, 2012, and 2016); Mark Jetté When deciding whether to elect to have a prelimi- (1999–2004); James Bahen (1997 and 1998); Karen Walker nary inquiry or to proceed directly to trial in the (1996); and Terence A. Schultes (1995). Criminal Procedure 47 Provincial Court, the defence will consider the na- qualified, and hearsay is subject to the usual legal ture and seriousness of the offence, and the extent tests for admissibility. to which full disclosure of the Crown’s evidence Though less frequently used, s. 540(7) of the Code has been provided. If the offence is serious and the permits a justice to receive any evidence in a pre- disclosure made by the Crown is incomplete, the liminary inquiry they consider “credible and trust- prudent choice is usually to have a preliminary in- worthy in the circumstances of the case” (the same quiry so that the defence can assess the strength of test used for show causes). This subsection includes the case against the accused. If the offence is less the ability to tender statements provided by wit- serious and the Crown’s evidence has been fully nesses that would not otherwise be admissible. disclosed, a trial in the Provincial Court carries the Reasonable notice is required (s. 540(8)). The op- advantage of the generally lower sentences that are posing party may require “any person whom the imposed in that court in the event of a conviction. justice considers appropriate to appear for examination or cross-examination” with respect to the evi- 3. Limiting the Scope of a Preliminary Inquiry dence tendered in this manner (s. 540(9)). Evidence tendered pursuant to s. 540(7) cannot be read in at a A preliminary inquiry may be limited to specific is- subsequent trial (s. 646). sues if the prosecutor and the accused agree (s. 549(1.1)). For example, the prosecution and de- The transcript of evidence given by a police officer fence may agree that identification is not in issue. If at a preliminary inquiry may be admitted at trial, that admission is reduced to writing and filed with provided reasonable notice is given by the Crown. the court, Crown counsel will not be required to (s. 715.01) lead evidence of what would otherwise be an essen- One significant difference from a trial is that Char- tial element of the offence in order to obtain a ter remedies are not available on a preliminary in- committal for trial (ss. 536.5 and 549(1.1)). If quiry. A justice presiding at a preliminary inquiry is counsel agree to limit the scope of the preliminary not a “court of competent jurisdiction” for the pur- inquiry, the justice, without recording evidence on pose of excluding evidence under s. 24(2) of the any other issues, may order the accused to stand tri- Charter (R. v. Hynes (2001), 159 C.C.C. (3d) 359 al after a limited preliminary inquiry (s. 549(1.1)). (S.C.C.); R. v. Mills (1986), 25 C.C.C. (3d) 481 The clear purpose of this provision is to permit (S.C.C)). This restriction can contribute to an air of counsel to focus on key issues and save valuable unreality at a preliminary inquiry, where the de- court time (ss. 536.5 and 549(1.1)). Under amend- fence can expose flagrant Charter violations when ments that came into force in September 2019, the cross-examining investigating police officers, but preliminary inquiry judge can also limit the issues the sitting judge cannot grant a Charter remedy. and witnesses at the preliminary inquiry (s. 537(1.01)). As will be discussed later, most judges recognize that the preliminary inquiry can provide an 4. Evidence on the Preliminary Inquiry important discovery function and will at least permit a full exploration of Charter breaches in After the accused elects to have a trial in Supreme anticipation that an application for a remedy will be Court and requests a preliminary inquiry, the made at trial. Crown will call its evidence on the preliminary inquiry. If counsel for the accused so requests, the The nature and scope of cross-examination by the court must order a ban on publication under s. 539. defence on a preliminary inquiry highlights the ten- sion between the ostensible purpose of the inquiry The procedure followed often resembles that of a according to the Criminal Code, and its actual val- trial: witnesses are called by the Crown, cross- ue to the defence. Technically, nothing achieved by examined by the defence, and if necessary, re- the defence, short of a total absence of proof of es- examined by the Crown. Note that a sitting justice sential elements of the charge(s), will affect the may order the immediate cessation of any part of an outcome of a preliminary inquiry since the judge is examination or cross-examination of a witness that not determining guilt but only assessing the suffi- is, in the opinion of a justice, abusive, too repetitive ciency of evidence. As a practical matter, however, or otherwise inappropriate (s. 537(1.1)). there is probably no more valuable tool in the prep- Many of the rules of evidence are the same as those aration for trial than effective cross-examination at for a trial. For example, the Crown must prove the a preliminary inquiry. Although the Crown adheres statements of the accused to be voluntary on a voir to a policy of full disclosure of all relevant material dire, must provide notice to the defence of its in its possession, whether favourable or unfavoura- intention to enter business records pursuant to s. 30 ble to the defence, the oral evidence of a witness is of the Canada Evidence Act, experts must be inevitably more detailed than any written statement or summary of expected evidence could ever be. No

Criminal Procedure 48 advance disclosure by the Crown can anticipate the uncover the existence of additional sources of evi- actual evidence that will emerge in court when a dence favourable to the defence, and to explore the witness is under oath. In addition, the physical outside limits of the evidence a witness is able to presence of the Crown’s witnesses at a preliminary give. For example, an investigating police officer inquiry gives the defence a crucial opportunity to might be asked if other witnesses were spoken to assess their demeanour when giving evidence and whose names do not appear in the police report, or to decide on the most effective approach to cross- whether exhibits seized by the police have been examining them at trial. tested forensically. Similarly, a complainant in a sexual assault case might be asked for the names of Most important to the defence is the opportunity relatives or friends who would have been around at that a preliminary inquiry provides to commit the the time of the alleged offences, or for the names of Crown’s witnesses to their evidence under oath. any counselors or therapists who have been in- Where at trial the witness departs in a material way volved in treating the complainant before or since from evidence given under oath at the preliminary the offences were disclosed. The information re- inquiry, cross-examination on that inconsistency ceived from the witnesses in answer to this type of with the aid of a transcript can be very effective. questioning will often allow defence counsel to ap- While cross-examining Crown witnesses on the ba- ply to the trial judge for an order that the Crown sis of inconsistent statements to the police is a use- disclose the full details of the evidence uncovered ful tactic, the witnesses can often explain any in- in cross-examination. This technique, together with consistencies with their present testimony by refer- “hallway” interviews before the witnesses give evi- ring to their emotional state at the time of the dence, will alert counsel to dangerous areas in the statement, to the inadequacy of the police officer’s witnesses’ evidence, which may be avoided before questions in taking the statement, or to the fact that the trier of fact at a trial. they were not under oath when they spoke to the police. But with a properly conducted, thorough In the limitation approach, defence counsel narrows cross-examination, there may be no such easy ave- the evidence and commits the witness to specific nues of escape when a witness gives different evi- assertions, so that the witness is bound by those an- dence from that given at a preliminary inquiry. At swers at trial. For example, where the offence is al- trial, whatever excuses the witness gives for “mis- leged to consist of numerous incidents that have takes” in the evidence they gave at the inquiry, the taken place over an extended time period, the wit- witness cannot escape the fact that those mistakes nesses should be encouraged during cross- were made after they had sworn an oath to tell the examination to commit to a specific number of in- truth. For this reason, the heart of any effective cidents within a definite time period. Any deviation cross-examination at trial is the skillful exploitation by witnesses at trial from those precise answers of inconsistencies between the witness’s evidence will allow defence counsel to impeach credibility. at trial and what was said on the same point at the Similarly, when a witness purports to narrate con- preliminary inquiry. Given how important cross- versations with the accused, counsel makes the wit- examination at the preliminary inquiry is to an ef- ness commit to specific words that the accused is fective defence, it is obvious that counsel must pre- alleged to have spoken and has the witness confirm pare thoroughly. Too many defence counsel treat that there are no other conversations relating to this the fact that a preliminary inquiry is not a determi- subject matter. Again, witnesses cannot allege addi- nation of guilt as an excuse for not preparing. Fail- tional conversations at trial without impairing their ing to fully explore the evidence at a preliminary own credibility. inquiry will hurt a client’s chances for ultimate It may be unwise to challenge and confront Crown success at trial. witnesses directly when cross-examining at the Defence counsel must develop a coherent theory of preliminary inquiry. Credibility is not in issue and the defence based on a thorough review of the the sitting justice lacks the jurisdiction to prefer the particulars provided by the Crown and the evidence of one witness over that of another. As a accused’s instructions. Then, defence counsel must matter of tactics, a direct challenge to credibility determine what portion of the expected Crown will alert the witness to counsel’s line of attack at evidence is damaging to the theory of the defence trial, and will make the witness less willing to and devise strategies for approaching this evidence provide the kind of detailed and cooperative during cross-examination. The most useful of these answers that make a preliminary inquiry useful. On strategies may be described as “discovery” and the other hand, there may be circumstances that “limitation.” arise in the course of a cross-examination that will make confrontation at this early stage a worthwhile In the discovery approach, defence counsel at a pre- gamble. Where defence counsel can demonstrate to liminary inquiry asks the witnesses non- Crown counsel that the witness is not believable, a confrontational, open-ended questions designed to stay of proceedings or a plea to some lesser charge

Criminal Procedure 49 short of trial might result. Judgment is always scope of the inquiry and the witnesses called at the required when deciding whether the tactic of preliminary hearing. confrontation might successfully move the witness to a more agreeable place in their evidence, or the 5. Order Following Preliminary Inquiry Crown toward significant compromise or even Once the accused has called any witnesses on be- surrender. half of the defence, or has indicated that no wit- Once the Crown has called all its witnesses at the nesses will be called, the preliminary inquiry judge preliminary inquiry, it will close its case, and the will call on defence and Crown counsel for submis- judge will then address the accused in the words of sions as to whether or not the accused should be s. 541(2). This address asks whether the accused ordered to stand trial. If there is evidence to clearly wishes to say anything in answer to the evidence support an order to stand trial, experienced defence and warns the accused that anything that is said in counsel will often make no submission. The test to answer to the charge may be recorded and given in be applied by the judge in deciding this question is evidence at the trial. Since nothing that is said by whether or not there is any evidence upon which a the accused at this point can affect the outcome of reasonable jury properly instructed could return a the preliminary inquiry, there is almost never an verdict of guilty (U.S.A. v. Sheppard (1976), 30 advantage to making such a statement and the best C.C.C. (2d) 424 at 427 (S.C.C.)). The judge does advice to give to the accused is to say nothing. not weigh the evidence heard at the preliminary inquiry, nor does the judge assess the credibility of After addressing the accused, the judge will ask if the witnesses. The Crown must simply have put any witnesses will be called on behalf of the de- forward a prima facie case, which amounts to some fence. Again, given the purpose of a preliminary evidence directed at each element of the offence(s) inquiry, there is rarely anything to be gained by alleged. The Crown is not required at a preliminary calling defence witnesses. However, if the Crown inquiry to prove its case beyond a reasonable doubt. refuses to call a witness who is crucial to preparing the defence, defence counsel might consider calling The accused will be discharged if the Crown fails that person on behalf of the defence at the prelimi- to call evidence on an essential element of the of- nary inquiry pursuant to s. 541(5) of the Criminal fence. For example, if the accused has not been Code. Unfortunately, any advantage gained by hav- identified as the offender, or if there is no evidence ing the witness available to the defence will likely that property found in the possession of the accused be outweighed by the fact that this witness must be was obtained by the commission of an indictable examined in chief by defence counsel and may be offence, the accused will be discharged on that cross-examined by the Crown. Since the likely rea- count. It is only the entire absence of evidence on son for the Crown refusing to call the witness in the an essential element that will lead to a discharge at first place was the witness’s hostility to the prose- a preliminary inquiry; if there is any evidence at all, cution and the Crown’s belief that the witness is the case will be left for the trier of fact at trial. unreliable, the Crown may benefit from the oppor- Pursuant to s. 548(1)(a) of the Criminal Code the tunity to cross-examine and thereby limit or dam- judge may order the accused to stand trial if “there age the witness’s evidence. is sufficient evidence to put the accused on trial for There may be circumstances in which calling a wit- the offence charged, or any other indictable offence ness is the only way to preserve vital evidence. For in respect of the same transaction.” This means that example, counsel may know that a key witness is an accused may be committed for offences that do seriously ill and may die, or is planning to leave the not appear on the Information, so long as evidence country before the trial, never to return. Calling this meeting the test for committal has been tendered witness may be the only way to preserve critical ev- before the court. A committal on offences different idence for use at trial. This evidence in transcript from those charged may also arise when the evi- form may be admissible at trial pursuant to s. 715 dence led does not meet the required standard for of the Criminal Code, which permits the reading in that offence, but does meet the test for some lesser of transcript evidence from a preliminary inquiry in included offence. For example, if the charge is rob- certain limited circumstances. Nevertheless, the bery, but the evidence fails to show any violence or situations will be rare where defence witnesses will any threat of violence surrounding the taking of be called at a preliminary inquiry. It is better to per- property, the accused may simply be ordered to suade the Crown to call that witness, if at all possi- stand trial on the offence of theft. ble. Rather than seeking a committal on other charges at Note that the defence’s and the Crown’s ability to the preliminary hearing, the Crown may later exer- call witnesses is limited in the same way under cise its option, under Criminal Code s. 574(1)(b), s. 537(1.01), which allows the judge to limit the of adding to the Supreme Court indictment any

Criminal Procedure 50 charge founded on the facts disclosed by the evi- Provincial Court trial is a possibility, it is best for dence taken on the preliminary inquiry. counsel to alert the judge before commencing the preliminary hearing, as the judge’s attention and If an accused is charged on an Information with note-taking will differ markedly depending upon multiple counts, any argument concerning commit- the nature of the hearing. tal should relate to only those counts that were the subject of the preliminary inquiry, that is, those 8. Review by Certiorari counts punishable by 14 years imprisonment or more. When a preliminary inquiry judge orders an accused to stand trial in the absence of any evidence 6. By-passing the Preliminary Inquiry on an essential element of the offence, defence The Criminal Code also provides several methods counsel may seek a review of the order in Supreme for avoiding a preliminary inquiry entirely. Where Court by certiorari. the accused does not request a preliminary inquiry, Once again, the standard placed upon a Provincial the case is referred directly to the trial court, be it Court judge is quite minimal: if there was some ev- the Provincial or Supreme Court, to fix a date for idence before the judge upon which a reasonable trial. (As noted earlier, under recent amendments, jury could convict, the order to stand trial will not an accused can only request a preliminary inquiry if be interfered with. The reviewing court will not they are charged with an indictable offence punish- substitute its opinion for that of a Provincial Court able by 14 years or more of imprisonment.) judge as to whether the evidence relied upon was in Pursuant to s. 577, the Crown may obtain a “direct fact sufficient (R. v. Russell (2001), 157 C.C.C. indictment” from the Attorney General, so that the (3d) 1 (S.C.C.)). It is only the entire absence of evi- accused goes directly to the Supreme Court without dence on an essential element that will lead to a having had a preliminary inquiry. Before R. v. Jor- quashing of the order to stand trial. When the dan, 2016 SCC 27, this was done only in the most Crown’s evidence is merely weak on a given ele- serious cases, such as murder or conspiracy. Jordan ment rather than non-existent, defence counsel established reasonable lengths of time for an ac- should save the argument for trial. cused to wait for trial. Since Jordan, direct indict- There are other potential grounds for a certiorari ment has become more common. application. One is the denial of procedural fair- Pursuant to s. 549, the accused may consent to be ness, in particular the denial of a full opportunity to committed to trial at any stage of the preliminary cross-examine a witness on a matter central to the inquiry, with the Crown’s agreement. This section making of full answer and defence. A superior is used only in exceptional cases. For example, if court may quash the committal and send the matter an accused is charged with murder and indicates a back before the Provincial Court judge with an or- wish to plead guilty without having had a der that cross-examination of a particular witness preliminary inquiry, then a consent committal will proceed at the preliminary inquiry (see Forsyth v. be needed because the Provincial Court does not R. (1980), 53 C.C.C. (2d) 225 (S.C.C.)). have the jurisdiction to sentence the accused. When the client wants a trial, a consent committal is undesirable because it means a loss of the discovery [§4.02] Disclosure Applications benefits that may flow from a preliminary inquiry. 1. General 7. Re-election The Crown must make full and timely disclosure to If things are going particularly well for the defence the defence of all relevant material in its posses- during a preliminary inquiry, defence counsel may, sion, whether favourable or unfavourable to the ac- with the consent of the Crown, re-elect before the cused. This duty is subject to certain exceptions: Provincial Court judge and convert the preliminary the Crown need not disclose clearly irrelevant ma- inquiry into a trial (Criminal Code s. 561(1)(a)). terial, privileged material, or matters relating to in- Because the preparation by the Crown for a prelim- formers. The Crown must, however, disclose all inary inquiry is so different from that for a trial, the material that may possibly be relevant to either the Crown may not consent to a re-election when diffi- prosecution or defence of the charge. The timing of culties in its case arise. disclosure may be delayed where early disclosure would prejudice a continuing investigation (see R. However, if the Crown has called a full case at the v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.)). preliminary inquiry, and no additional evidence may be expected to emerge before the trial, the The Crown in British Columbia complies with both Crown will often consent, particularly when an ac- the letter and the spirit of Stinchcombe, so that in quittal is inevitable at trial. When re-election to a most cases defence counsel will have received

Criminal Procedure 51 complete disclosure of the case against the accused applicant if the judge is satisfied that the record, or well before the trial date. Occasionally, however, part of it, is likely relevant to an issue at trial or to situations will occur in which defence counsel asks the competence of a witness to testify, and its the Crown to produce material that is in the posses- production is necessary in the interests of justice sion of third parties, or to produce material when (s. 278.7). While making that determination, the relevance is in dispute. In these cases, the defence court is to consider the salutary and deleterious must apply to court, before trial, for an order for effects of disclosure on the accused’s right to make production of the contentious material. full answer and defence and on the right to privacy and equality of the person to whom the record If the Crown possesses but refuses to disclose rele- relates. The Supreme Court of Canada found these vant materials (such as records of related police in- provisions to be constitutional in L.C. (the vestigations or criminal records of Crown witness- complainant) and the Attorney General for Alberta es), defence counsel may apply to the court for an v. Mills, (1999) 139 C.C.C. (3d) 321. order compelling disclosure. Counsel prepares an application, together with any available supporting The above provisions only apply to certain sched- material demonstrating why the requested material uled sexual offences in the Criminal Code is relevant to a matter in issue, and why disclosure (s. 278.2). For production of materials from third is necessary in order for the accused to make full parties in relation to offences that do not appear on answer and defence. Where possible, disclosure this list, the common law rules outlined by the Su- applications should be made well before the trial preme Court of Canada in O’Connor apply. The date so that the defence will not have to seek an ad- common law rules are similar to the procedures journment once the requested material is received. provided in the Criminal Code for sexual offences, These applications must be made to a trial court; a but in some respects are somewhat less restrictive preliminary inquiry justice does not have jurisdic- for the applicant seeking disclosure. See also R. v. tion to compel Crown disclosure (see Stinch- McNeil (2009), 238 C.C.C. (3d) 535 (S.C.C.) re- combe). specting police disciplinary records. To obtain disclosure of such records, defence coun- 2. Medical and Third Party Records sel must apply formally to the trial judge and must If the application is for medical or psychiatric rec- serve notice on the Crown, the person in possession ords that are in the possession of third parties (such of the records, the complainant to whom the rec- as therapists) or the Crown, the procedure to be fol- ords relate, and any other person with an interest in lowed is set out in ss. 278.1–278.91 of the Criminal the confidentiality of the records. Code (the “Mills regime”). These provisions were implemented in response to the decision of the Su- No matter how obtained, an order for disclosure to preme Court of Canada in R. v. O’Connor (1995), the defence of third party records does not include 103 C.C.C. (3d) 1 (S.C.C.). an automatic right to use any of that material in court, for cross-examination or otherwise. Cross- The application will proceed in stages. The defend- examination may be restricted and rulings may be ant brings an application after having given notice required before certain types of testimony can be to the records custodian and anyone whose privacy given. The ultimate relevance of the evidence de- interests may be affected by disclosure (most com- rived from this disclosure is a matter for the trial monly the complainant). The custodian also re- judge. ceives a subpoena. Counsel need to pay special attention to rules re- A judge may order the person who has possession stricting questions regarding a complainant’s prior or control of the record to produce it to the court sexual activity. Section 276 of the Criminal Code for review, once the judge is satisfied that the ap- sets out a procedure that must be followed where plicant has established that the record is likely rele- these questions are proposed. The procedure re- vant to an issue at trial or to the competence of a quires that a notice of motion be filed. The notice witness to testify, and that the production of the must describe the specific instances of sexual activ- record is necessary in the interests of justice ity, how that activity is relevant to an issue at trial, (s. 278.5(1)). This section then sets out the factors and why it is that this evidence has significant pro- the court will consider in determining whether the bative value that is not substantially outweighed by court will order production of the record for this prejudice to the proper administration of justice review. (see ss. 276–276.4). If the judge orders that the record be produced, the judge must review the record in the absence of the parties to determine whether any part of it should be produced to the accused (s. 278.6). A judge may order a record to be produced to an accused

Criminal Procedure 52 3. Defence Disclosure In the Supreme Court of British Columbia, pre-trial conferences are held for all jury trials, trials by direct in- There are some circumstances in which the defence dictment, longer judge-alone trials of four days or more, is required to disclose material to the Crown. Case and extradition hearings (see Criminal Code s. 625.1, law has established that where the defence elects to Rule 5 of the Criminal Rules for the Supreme Court of call an expert witness to give opinion evidence at British Columbia, 1997, and Rules 6-7 of the Supreme trial, documents such as a report prepared by that Court Criminal Practice Direction—Criminal Pre-Trial expert witness for the defence may, in limited cir- Conference Process, 2012 (CPD-1)). cumstances, result in an order that the report and other supporting documents be disclosed to the At the pre-trial conference, the Crown and defence Crown, even before the witness gives evidence in counsel attend in chambers before a judge of the chief. The court will rule that the act of calling the Supreme Court, who may not be the judge who will hear defence expert constitutes waiver of any privilege the trial. The accused often attends, although this is not attaching to the report, and may find that a refer- mandatory. The Crown must file a synopsis of its case, ence to the report in defence counsel’s opening ad- which is used only as a case management tool. The dress is similarly a waiver of privilege giving rise to presiding judge asks counsel about such matters as the an order that the report be disclosed to the Crown anticipated length of the trial, the likelihood of any (R. v. Stone (1999), 134 C.C.C. (3d) 353 (S.C.C.)). Charter applications, the adequacy of disclosure by the Crown, and whether the jury should attend on the first Following on the heels of Stone, Parliament legis- day of the trial. The judge may make orders about the lated defence disclosure of expert reports. Sec- conduct of the trial and may schedule additional tion 657.3 of the Criminal Code requires that a par- conferences before the trial if any important issues ty (Crown or defence) who intends to call a person remain unresolved. as an expert witness shall, at least 30 days before the trial begins, give notice to the other side of their In practice, the effectiveness of pre-trial conferences is intention to do so. That notice must include the directly related to how well counsel prepare. If both name of the witness, a description of their area of counsel are well-prepared, valuable court time can be expertise, and a statement of qualifications. The saved by focusing on the matters at trial that will be in Crown must provide a copy of its expert report to issue. In some cases, guilty pleas follow the conference. the defence “within a reasonable period before the Counsel who want to make the conference productive trial,” while the defence must disclose its report to should write to the other side in advance, setting out the the Crown “not later than the close of the case for issues to be resolved, and seeking agreement on non- the prosecution….” Failure to meet these notice contentious matters so that the discussions of counsel at provisions will not render the report inadmissible, the conference will have a meaningful framework. but may give rise to other remedies, including ad- Additional procedural mechanisms have been adopted to journments and the calling of evidence in rebuttal. assist in the management of large trials. A “case man- The Crown is not permitted to produce into evi- agement judge” may be appointed by the Chief Justice dence any part of the material disclosed by the de- or Chief Judge under s. 551.1(1) to assist in promoting a fence when, for whatever reason, the defence fair and efficient criminal trial. In addition, where there chooses not to tender the report into evidence. are related trials with similar issues and a joint hearing The common law has long required timely and spe- would assist, the Chief Justice or Chief Judge may make cific disclosure of the defence of alibi. If the de- an order under s. 551.7(1) for a joint hearing. fence presents evidence of an alibi for the accused, but fails to disclose the details of the alibi to the [§4.04] Jury Selection Crown before trial, the trier of fact can give less weight to the alibi. The timing of the notice must Every person who is charged with an indictable offence, leave sufficient time before trial to allow the Crown except those offences listed in s. 553 of the Criminal to act on the notice and attempt to verify specific Code, is entitled to a trial by a jury, unless the accused details of the alibi defence (R. v. Cleghorn (1995), chooses to be tried by a judge of the Supreme Court sit- 100 C.C.C. (3d) 393 (S.C.C.)). ting without a jury, or by a Provincial Court judge.

[§4.03] Pre-Trial Conferences See s. 536 of the Criminal Code for the available elections, and s. 11(f) of the Charter for the constitutional right to a jury trial. Subsection 625.1(2) of the Criminal Code requires that a pre-trial conference be held for all jury trials. Such a If the trial is by judge and jury, the proceedings begin conference may be held for other kinds of trials, with the with the selection of the jury. For jury trials in New consent of the Crown and defence (s. 625.1(1)). Westminster and Vancouver, potential jury members are assembled in groups on designated jury selection days,

Criminal Procedure 53 often weeks before the scheduled trial dates. In other Under the Jury Act, certain individuals are disqualified jurisdictions, juries are picked just before the trial starts. from serving as a juror, and would be excused for that reason. Examples include those who are not Canadian Jury selection starts with taking the accused’s plea. If citizens, not resident in British Columbia, under the age the plea is “not guilty,” the selection of the jury proof 19, certain federal civil servants, lawyers, peace of- ceeds. A jury panel of sufficient size to fill all the re- ficers and correctional officers. quired juries, allowing for the fact that not all prospective jurors will be suitable, will be assembled in the Prior to September 19, 2019, counsel for the Crown and courtroom. The panel can number up to 200 people, de- the defence could challenge a juror they did not wish to pending on how many trials require juries. These people have on the panel for cause or peremptorily (as of right). have been chosen at random from the voters list. It is Recent amendments to the Criminal Code abolished from this panel that each jury of 12 persons is selected. peremptory challenges. However, in British Columbia, Lists of the names, addresses, and occupations of the where an accused elected (or was deemed to have jurors are provided to each counsel who will be select- elected) trial by judge and jury prior to September 19, ing the juries. Section 631(2.2) of the Criminal Code 2019, the previous provisions governing jury selection now permits a judge to order that 13 or 14 jurors, in- apply, including the right to peremptory challenges (R. stead of 12, be sworn in if it is advisable in the interests v. Subramaniam, 2019 BCSC 1601). of justice, for instance in particularly long trials. A prosecutor or an accused is entitled to challenge for The court clerk draws the names of individual jurors cause for the grounds listed in s. 638, for instance, if the from a box. The selection is random. At the instance of juror’s name does not appear on the list, the juror is not the presiding judge, an arbitrary number of potential a Canadian citizen, or a juror does not speak either of jurors (usually 10 to 20) will be called forward and will the official languages of Canada. Under s. 638(1)(b), a stand at the front of the courtroom. The sheriff then calls prosecutor or accused is entitled to argue that a juror is each potential juror forward one at a time. At this point, not impartial and invoke a challenge for cause. This may the potential juror may indicate to the judge that they are encompass situations in which a juror or pool of jurors unable to serve on the jury. has been subjected to extensive media coverage, or when there is some evidence of racial or other bias in The judge may excuse a juror at any time before trial for the community that may prejudice a fair trial. A party any of the following reasons: personal interest in the who demonstrates a realistic potential for bias has the matter to be tried, relationship with the judge, accused, right to challenge potential jurors for cause. The court counsel or prospective witness, personal hardship, or will usually resolve doubts in favour of the right to chal- other reasonable cause (s. 632). The judge may also di- lenge, but the challenger must satisfy the court: rect a juror to “stand aside” for reasons of personal hardship, maintaining public confidence in the admin- (a) a widespread bias exists in the community; istration of justice, or any other reasonable cause and (s. 633). These provisions were recently amended by An (b) some jurors may be incapable of setting aside Act to amend the Criminal Code, the Youth Criminal the bias and rendering an impartial decision, Justice Act and other Acts and to make consequential despite trial safeguards. amendments to other Acts, S.C. 2019, c. 25. As described in the Legislative Background to the Act, “main- The presumption that prospective jurors are indifferent taining public confidence in the administration of jus- or impartial must be displaced before they can be chal- tice” ensures an impartial jury: lenged and questioned in these areas (see R. v. Williams, [1998] 1 S.C.R. 1128; R. v. Find (2001), 154 C.C.C. The Act amends s. 633 to permit a judge to (3d) 97 (S.C.C.)). stand aside a juror to maintain public confidence in the administration of justice. This tool helps A notice of application to challenge potential jurors for to ensure that potential jurors are impartial and cause must be filed and delivered to the opposing party capable of performing their duties, if selected. 30 days in advance of jury selection: see BC Supreme The concept of maintaining public confidence in Court Notice—Challenging Potential Jurors – Applica- the administration of justice is already used in tion for Leave (NP: 29 July 1999). other parts of the Criminal Code and has been Prior to September 19, 2019, a challenge for cause was interpreted by the SCC in St-Cloud (2015) heard by lay persons called “triers.” After September 19, [2015] 2 S.C.R. 328 in the context of bail. In 2019, the judge determines whether or not the juror shall this context, decisions are made on a case by be sworn (s. 640). case basis and are based on all relevant circumstances, including the importance of ensuring Once the jury has been chosen, the judge may invite the that the jury is impartial, competent and repre- jury to retire and choose a foreperson from among them, sentative. The amendment recognizes and en- although the usual practice is to instruct the jury to wait hances the role of judges in promoting an impar- a day or two after the trial begins so they get to know tial, representative and competent jury. each other before they select a foreperson. After a jury

Criminal Procedure 54 has been chosen, the judge instructs the court clerk to Every jury trial (and most non-jury trials) follows a set begin the selection of the next jury. If no other juries are pattern that begins with the opening address by the to be selected, the judge instructs the remaining mem- Crown, the case for the Crown, the opening address for bers of the jury panel of the date and time they are to the defence, the case for the defence, rebuttal evidence return to participate in the selection process for the next (if any), and closing addresses by both Crown and de- group of trials. fence counsel. Section 631(2.1) of Criminal Code provides a procedure In Provincial Court, the Crown usually calls the case. In for selecting additional or “alternate” jurors where there Supreme Court, the clerk will call the case. After both is to be a break in time between jury selection and the counsel have introduced themselves, the accused is ar- commencement of trial. This kind of delay often occurs raigned. The charge is read, any relevant elections are when lengthy voir dires are to be completed before the made and the plea is taken. The Crown or defence may jury will be required. Courts routinely must replace one ask for an order excluding witnesses. The Crown will or more jurors when after selection but before the trial then call its first witness. starts, a juror advises the court of a problem or circum- With multiple accused, the order of names on the instance that would justify a discharge from jury duties. dictment determines the order of the questioning of wit- Sections 631(2.1) and 631(2.2) of the Criminal Code nesses, the order in which each accused will be called allow for the selection of one or two alternate jurors. upon to call defence, if any, and the order of closing ad- Where 13 or 14 jurors remain after the charge to the ju- dresses: R. v. Sandham (2009), 248 C.C.C. (3d) 392 ry, s. 652.1 provides for the reduction of the jury to 12 at (Ont. S.C.J.).2 the end of the trial after the charge and before the jury retires. [§4.06] Opening in Non-Jury Trials If the number of jurors falls below 10, s. 644(3) permits the judge, with the consent of the parties, to discharge A brief, concise outline of the case assists the court in the jurors, continue the trial without a jury, and render a gaining an overview of the case for the Crown. In Pro- verdict. vincial Court and in non-jury trials in Supreme Court, openings by the Crown are not as common as in jury [§4.05] The Crown’s Case trials. This is unfortunate because a Crown opening is an excellent opportunity for the Crown to outline its case Crown counsel must be fair and impartial throughout the with precision and clarity, and any “heads up” as to the hearing. The Crown’s role is to present to the court rele- key issues or important evidence in the case is extremely vant, admissible evidence in a clear, precise, and firm helpful to the trial judge. manner. While the role of the Crown excludes the notion Openings usually include a short summary of the of winning or losing (see R. v. Boucher (1954), 110 following: C.C.C. 263 (S.C.C.)), Crown counsel would not be performing their role properly if the case for the Crown was  alleged circumstances; not presented in a manner designed to convince the jury  number of witnesses and their anticipated or judge of the worthiness of the Crown’s case. The evidence; Crown may not express a personal opinion that the ac-  anticipated issues; and cused is guilty or innocent.  more important exhibits. No duty is cast on the Crown to call any particular witness, provided that in deciding not to call a witness the If there are many exhibits, it is preferable, with the con- Crown is not acting for an oblique or improper reason. sent of the court and defence, to prepare a list of exhibits Generally, the Crown may be expected to call all wit- to present to the court at the outset of the hearing. If nesses who are essential to the unfolding of the narra- many documents are involved, they should be properly tive. While the Crown may not be required to call a giv- tabbed and indexed. en witness, the failure of the Crown to call a witness

may leave a gap in the Crown’s case which will leave the Crown’s burden of proof undischarged and entitle the accused to an acquittal (R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.)). There is a duty on the Crown to provide particulars to defence counsel of any evidence that has a bearing on any issue in the trial, and this of course includes disclosing the existence of wit- 2 R. v. Sandham also states that the order on the indictment de- nesses who may have relevant evidence even though the termines the order in which peremptory challenges are exer- Crown will not be calling them. cised. Peremptory challenges have been eliminated under recent amendments to the Code, but are still available for cases in which the accused elected trial by judge and jury prior to Sep- tember 19, 2019. Criminal Procedure 55 [§4.07] Opening Addresses by the Crown in [§4.08] Direct Examination Jury Trials The procedure of calling witnesses is designed to elicit After the jury has reassembled, and the accused has been the necessary evidence to prove all the essential ele- put “in charge of the jury,” the trial continues. The first ments of the offence charged, and to permit this evi- order of business is the opening by Crown counsel. dence to be tested before the court. The role of examination-in-chief (or “direct examination”) is to allow this The opening address is a very useful tool for the Crown, evidence to emerge in a convincing, complete, and or- not simply to present the jury with an overview of the derly way. case, but also to acquaint the jury with the theory of the Crown and how the evidence fits into that theory. When examining a witness on behalf of the Crown, particularly before a jury, it is important to consider how The prosecutor’s opening generally consists of a brief the evidence is being received. Can the witness be outline of the case that the Crown intends to prove. This heard? Is the evidence being followed? Should the wit- outline is designed to provide the jury with an overall ness speed up, slow down, or give more explanation? view of the case so they can see how the various pieces Often it is best to ask questions that allow a witness to of evidence fit together. The prosecutor will usually narrate in their own words; constantly interrupting a warn the jury that what the prosecutor is saying is not witness tends to throw the witness off balance and frag- evidence. Unless a voir dire has been held before the ment the evidence. At the end of a trial, the jury will be opening, in which contentious evidence has been ruled left with an impression of the witness, including credi- admissible, Crown counsel cannot refer to contested bility, so direct examination should be conducted so as evidence (for example, a statement by the accused). If to allow the witness to make a favourable impression. the jury is made aware of evidence that the judge does The jury can be reminded later of specific pieces of evi- not later admit, a mistrial is possible. For this reason, it dence, but the jury’s impression of the witness is formed is always preferable for the Crown to seek rulings on while the witness is in the box. disputed pieces of evidence before making the opening address. If, during pre-trial interviews, counsel becomes aware that a witness wants to change their testimony from that Crown counsel must not engage in any type of argument contained in a pre-trial statement or in a preliminary in the opening statements. The Crown’s opening state- hearing transcript, counsel should, during direct exami- ment should amount to an impartial summary of the evi- nation, point out the inconsistency and ask the witness dence that it expects to call. to give an explanation. By following this procedure, The accused is shielded by the presumption of inno- counsel will remove a potent weapon from opposing cence and the Crown must be most careful to respect counsel. and honour that presumption. Inflammatory language, personal opinions as to guilt or [§4.09] Leading Questions innocence, and legal argument masquerading behind a series of rhetorical questions have no place in Crown A leading question is one phrased to suggest a particular counsel’s opening remarks before a jury. Mistrials have answer to the witness. The objection is that through a been declared in many cases in which these boundaries leading question, counsel is influencing testimony. Gen- have not been observed. erally, a witness is more favourably disposed to the party calling them, and psychologically may be open to After finishing the opening address to the jury, the pros- suggestion as to what evidence they will give. The mere ecutor will then begin to call witnesses. fact that the answer to a question is “yes” or “no” does In some circumstances a trial judge will permit defence not make it a leading question. It is only if the question counsel to address the jury immediately after the Crown suggests an answer to the witness that it offends against opening. This has been permitted in cases that are com- the rule. plex and when it is anticipated that the Crown’s evidence will take a long time to present. It has also been 1. When Permitted permitted when defence counsel has wanted to com- Subject to certain exceptions, leading questions are municate to the jury that the accused is making signifi- not permitted on direct examination or re- cant admissions, which will help the jury to focus upon examination. They are, of course, allowed on cross- the remaining contentious issues as between the Crown examination since the essence of cross-examination and defence (R. v. Sipes, 2011 BCSC 695; R. v. Johal et is making suggestions to the witness in the hope al., [1995] B.C.J. No. 3010 (B.C.S.C.); R. v. Gibson, that the suggestions will be adopted. The judge has [1999] B.C.J. No. 1050 (B.C.S.C.)). discretion to allow leading questions in any situation where justice demands (R. v. Maynard and McKnight (1959), 126 C.C.C. 46 (B.C.C.A.); and Ref. Re R. v. Coffin (1955), 116 C.C.C. 215

Criminal Procedure 56 (S.C.C.)). Appropriate cases in which leading ques- generally (R. v. Coffin (1956), 114 C.C.C. 1 (S.C.C.); R. tions would be permitted might include witnesses v. Figliola, 2011 ONCA 457). In practice, applications of limited intellectual capacity, or very young child to declare a witness hostile or adverse are rare and can witnesses. usually be avoided with proper planning and witness Using leading questions inappropriately or exces- preparation. sively, even when permitted by a judge, may severely diminish the strength of a witness’s evi- [§4.10] Refreshing a Witness’s Memory dence. It does not affect its admissibility (Moor v. Moor, [1954] 2 All E.R. 458 (C.A.)). An answer on A forgetful witness can be aided by asking a moderately a critical issue elicited by a leading question is enti- leading trigger question which directs the witness’s tled to little if any weight (R. v. Williams (1982), 66 mind to the subject area counsel is canvassing. Failing C.C.C. (2d) 234 (Ont. C.A.)). that, a witness may refresh their memory by referring to a prior transcript or statement, or even a picture or re- 2. Exceptions cording (R. v. Fliss, 2002 SCC 16). Leave of the court is Leading questions are permitted on direct and re- required before refreshing the memory of a witness on examination in the following situations: the record. (a) for introductory matters such as address, occu- The practice of allowing police officers and civilian pation, time and place; witnesses to refresh their memories by looking at notes of the incident made at the time (or at prior statements) (b) for matters not in dispute (this saves time and is common. Typically, the witness will be first asked to clarifies the case, and often defence counsel exhaust their memory on the subject, though there is will advise the Crown before the hearing as to some debate about whether this is required (R. v. Carroll the contested issues, or the Crown will ask de- (1999), 118 B.C.A.C. 219; R. v. Fliss, 2002 SCC 16; R. fence if it might lead in certain areas); v. Violette, 2009 BCSC 503). (c) for summarizing or repeating evidence about After establishing that reference to an earlier statement which the witness has already testified; would refresh that memory, counsel can simply hand the (d) for counsel to simply direct the witness’s at- witness a copy of their statement or preliminary hearing tention to a specific area of the evidence; and transcript, refer to the particular place of interest, ask them to read it silently, and then ask if it refreshes their (e) for stimulating or fixing the witness’s recollec- memory. This technique is usually successful. tion of a name, date or place after an attempt by counsel to exhaust the witness’s memory. As for notes made at the time of the incident, the Crown will lay the foundation to allow the witness to stimulate In criminal cases where a witness gives evidence incon- their current recollection by asking: “Were the notes sistent with a prior written or recorded statement, and an made at the time or shortly after the event?” and “Did attempt at refreshing the witness’s memory has failed, you use your notes to refresh your memory before testi- an application to cross-examine the witness on the issue fying today?” may be made pursuant to s. 9(2) of the Canada Evidence Act. In such case, the procedure in R. v. Milgaard In R. v. Bengert, Robertson (No. 2) (1978), 15 C.R. (3d) (1971), 4 C.C.C. (2d) 206 (Sask. C.A.) must be closely 7 (B.C.S.C.); aff’d (1980), 15 C.R. (3d) 114 at 160 followed. (B.C.C.A.), Berger J. held that a witness who had prepared a notebook relating to meetings with the accused, In practice, where an honest witness is simply mistaken, using his own recollections and notes made by a police another option is to refresh the memory of the witness officer of the information that the witness had passed on (see §4.10) or ask for a break and show the witness the to that officer, could use the notebook to refresh his contradictory part of their statement in order to assist memory during his testimony. It was not the notebook their memory while being mindful that the witness’s out- that was to be the evidence but the recollection of the of-court conversation with counsel may be the subject of witness, refreshed by using the notebook. cross-examination. The witness can then be recalled and asked if their memory has changed (R. v. Fedan, 2016 In R. v. Burns, (1979), 51 C.C.C. (2d) 27 (B.C. Co. Ct.), BCCA 26). Resort to the procedure in s. 9(2) is usually Anderson J. ruled that the police officer in that case was better reserved for hostile witnesses. entitled to give his evidence by reference to his notes before exhausting his memory. After approving Bengert, Where a witness demonstrates more generally that they Anderson J. stated: are “adverse,” an application may be made under s. 9(1) of the Canada Evidence Act to cross-examine the wit- . . . in my view it is only a matter of ness at large but only on the circumstances of the mak- common sense that the evidence that ing of the prior statement. Additionally, a witness can be this witness has to offer be presented in declared “hostile” at common law and cross-examined an orderly and sensible manner and that

Criminal Procedure 57 he be permitted to refer to his notes in the complainant describe the actual injuries for the jury. giving this evidence to the court. The Provided that the evidence is not led solely for its in- notes, as I understand it, were made at flammatory effect, it is quite proper for Crown counsel or about the dates and times in question. to reject offered admissions and insist on leading certain They were made by Sergeant Barguent evidence before the jury. as part of his duties as a police officer. If admissions are agreed upon, it is good practice to have As a result of Stinchcombe, the production of notes them reduced to writing before the trial. Reducing ad- made by Crown witnesses is routine. Police notes should missions to writing is expected in Supreme Court trials. always be requested, and their content can be a fruitful Written admissions are marked as an exhibit and may area for cross-examination. later be examined by the jury. For a useful discussion of how to cross-examine a witness on a prior statement, see R. v. Smith (1983), 35 [§4.12] Witnesses and Exhibits C.R. (3d) 86 (B.C.C.A.). Crown counsel should have a firm knowledge and a If a witness has no present memory of certain events and clear picture of the case for the Crown as a whole. This reference to a prior statement does not refresh the wit- is impossible without thorough personal interviews with ness’s memory, the evidence may still be placed before Crown witnesses because police reports to Crown coun- the court if certain conditions are met. If a witness made sel often lack detail. a statement at a time when the events were fresh in their mind and the witness can testify that the statement was The prosecutor must make it clear to the witness why true at the time it was made, the statement itself may the witness is being called and the points the witness become evidence under the doctrine of past-recollection will establish. In Provincial Court, heavy caseloads and recorded (R. v. Fliss, 2002 SCC 16; R. v. Rouse and last-minute movement of cases from one prosecutor to McInroy (1977), 36 C.C.C. (2d) 257 (B.C.C.A.)). another may mean the Crown has insufficient opportunity to interview witnesses at length. Still, it is a danger- [§4.11] Admissions of Fact ous practice for the Crown to call a witness who has not been interviewed in advance, however briefly. Evidence may be adduced by agreed admissions of fact In the interests of justice, the prosecutor must permit the under s. 655 of the Criminal Code. witness to give the witness’s whole testimony, whether or not it is favourable to the case for the Crown. In Su- Section 655 applies to indictable proceedings, and to preme Court trials, the Crown should inform the defence summary proceedings through s. 795. For preliminary well before of any witnesses who are to be called at the inquiries, the authority is Re Ulrich and R. (1977), 38 trial who were not called at the preliminary hearing. If C.C.C. (2d) 1 (Alta S.C.T.D.). this is not done and defence counsel is taken by surprise, There is no specific provision in the Criminal Code al- defence counsel will usually be allowed an adjournment lowing for Crown admissions. However, it has long been in order to prepare cross-examination of the witness. the practice that the Crown may, at the request of the The Crown should consider carefully whether the wit- accused, waive technicalities of proof in relation to facts ness is essential and whether the witness’s evidence is known by the Crown, to help bring out all facts tending required in light of the evidence of other witnesses. If to strengthen the accused’s defence. the witness’s testimony would be superfluous, the wit- Admissions of fact are made in order to shorten the trial ness should not be called. The Crown should simplify and narrow the issues. Accused persons may admit any the case and sift out the essential from the non-essential facts alleged against them in order to dispense with the facts. Good counsel have the ability to do so effectively. necessity of proving those facts. For example, on a trial Before giving evidence, a witness over the age of 14 for “failing to appear,” the accused may admit all the years must swear the oath, or solemnly affirm. A party allegations in the Information except “without lawful may challenge a witness’ ability to testify. If the witness excuse.” Those admissions form the case for the Crown, is over the age of 14 years, this procedure is governed and the defence then calls the accused to testify as to the by s. 16 of the Canada Evidence Act. The witness can be excuse for failing to appear in court. challenged on their ability to understand the nature of an Although Crown counsel generally should embrace any oath or a solemn affirmation and whether the person is opportunity to expedite the progress of the trial through able to communicate the evidence. Witnesses under the admissions by the defence, Crown counsel should be age of 14 years can also be challenged but only for their aware that experienced defence counsel may offer ad- ability to understand and respond to questions. This pro- missions as a means of diminishing the impact of some cedure is governed by 16.1 of the Canada Evidence Act. aspects of the Crown’s case. For example, defence Witnesses under the age of 14 years testify upon promis- counsel may seek to admit that a complainant suffered ing to tell the truth, and cannot be questioned on their “bodily harm” rather than have the doctor who treated

Criminal Procedure 58 understanding of the oath, solemn affirmation or promis- from the Crown. Defence counsel is also entitled to in- ing to tell the truth. terview Crown witnesses so long as they agree to be interviewed; there is “no property in a witness.” This is To help the court follow the evidence, the Crown’s case often the best method of testing a response to a question should be led in a logical order. In cases with many ex- that might otherwise be too dangerous to chance before hibits, the Crown will often start by calling the “exhibit the trier of fact. officer” (the officer who seized all of the police exhibits) to have the exhibits tendered into evidence (even if Counsel must decide whether to cross-examine each only for the purpose of later identification by the witness witness. Protracted and irrelevant cross-examination is who can actually describe the relevance of the exhibits bad technique and a waste of time. Cross-examination to the case). For example, a knife might be marked an can be harmful if a witness merely repeats unfavourable exhibit, “for identification” on the testimony of the ex- evidence given on direct. Cross-examination will proba- hibit officer that “this knife was given to me by Consta- bly not be able to shake an essentially true story. ble Smith.” When you are on firm ground with your case, ask only a Unless admitted, the Crown will have to lead further few questions or none at all. Further questions may elicit evidence to prove the “continuity” of the exhibit, linking unexpected explanations that may sink your case. Never it to the crime or to the accused. For example, Constable ask a really critical question—the answer to which may Smith may testify that while present at the autopsy of destroy your case—unless you know the answer or the the deceased, he received the knife from the pathologist answer will not harm your case no matter what it is. Be who removed it from the deceased. At the time such fur- cautious and know when to sit down. Stopping is one of ther evidence is led, the “exhibit for identification” may the most effective tools. For example, the witness may be marked as a full exhibit in the trial and can be con- answer a question and be expecting to say more with a sidered as evidence by the jury. If it appears obvious qualification or explanation, when counsel either chang- that the Crown will prove continuity, or if the defence es the topic of cross-examination or does not question wants the exhibit in the trial, continuity can be admitted further. so that the item can be entered directly as an exhibit in Counsel must know the objective of their cross- the trial as soon as the exhibit officer produces it. examination. Determine first what facts are in issue and In a jury trial, rather than marking exhibits for identifi- ask yourself the following questions: cation, objections to the admissibility of exhibits should  Can I elicit new evidence from this witness that fa- be resolved in a voir dire so that exhibits objected to vours my case? will not be seen by the jurors before the issue has been determined.  Has the witness hurt my case and if so, how can I weaken, qualify or destroy the witness’s evidence? It is also common when witnesses will be referring to maps, plans, or photographs, either to file these items at  Can I discredit the witness’s testimony or use it to the commencement of the trial by consent, or to call as discredit the unfavourable testimony of other the first witnesses those who will prove these items. witnesses? In many cases it is the exhibits, or “real evidence” that Counsel should stop once the objective of cross- will convict an accused. In serious cases it may be par- examination is attained. To continue is to risk that the ticularly useful for both the Crown and defence to exam- witness will modify evidence and destroy the value of ine the exhibits in advance to ensure there will be no the objective that was reached. unpleasant surprises. Defence counsel should generally avoid asking questions to which the answers are unknown because an un- [§4.13] Cross-Examination expected answer may be devastating to your case. The time to have asked such questions is at the preliminary When a witness gives evidence, opposing counsel has a inquiry. However, there may be circumstances where right to cross-examine. Cross-examination is a powerful counsel must risk asking such a question if a favourable weapon for testing the accuracy and completeness of the answer is essential to the defence and failure to put such evidence and the veracity of the witness. It enables the a question would likely lead to conviction. trier of fact to weigh or evaluate the evidence in the Cross-examination of a witness by Crown Counsel is case. qualitatively different in that the prosecutor will usually Before trial, defence counsel should find out from the want a defence witness to provide details and elaborate Crown which witnesses will be called and in what order, upon their testimony so that an assessment can be made so as to anticipate their effect on the case. It is extremely as to whether the details make sense and fit with other helpful to have some background on the witnesses, their evidence. While Crown Counsel may use some of the involvement in the case, and anything they have to say. same cross-examination methods, fear of an unexpected Defence counsel has a right to demand such information answer is less important for the Crown than fully explor-

Criminal Procedure 59 ing the logic and credibility of any explanation for the exhibits, and against the evidence of other witnesses accused’s conduct. who are reliable. Anticipate the answers to your questions as much as possible. The witness may be delicately The dangers of suggesting to a witness that they have “lured” into saying something that can be disproved only recently concocted a story should be kept in mind. through other witnesses, or into saying something illogi- Cross-examination on recent fabrication of evidence will cal. If so, pursue the matter. entitle the Crown to lead evidence in re-examination or from other witnesses of previous consistent statements Cross-examine as to powers of observation, intelligence, by that witness to show the evidence has not been re- memory, and accuracy. Impeach the credibility of the cently fabricated (R. v. Ellard, 2009 SCC 27). witness by showing, for example, bias, previous convictions or prior contradictory statements. Watch witnesses Cross-examination is often the whole of the case for the carefully and listen to their voices, adapting your style to defence. Counsel is entitled to ask leading questions on their personality. It is good practice to ask Crown coun- cross-examination, a great advantage in eliciting fresh sel for copies of criminal records of those civilian wit- evidence that puts a new light on direct examination. nesses you hope to discredit. In some cases, it may also The result is to build up one’s own case and weaken that be possible to obtain either the cooperation of the Crown of the other side. or a court order for the production of police reports Note the following special rules: which explain the surrounding facts leading to those convictions. This information, in the hands of skillful  If you intend to directly contradict a Crown witness defence counsel, can be a devastating weapon in cross- with testimony from your own witness, you must examination. put your version to the Crown witness (R. v. Dyck, [1970] 2 C.C.C. 283 (B.C.C.A.)). In his book, The Technique of Advocacy, John Munkman describes several techniques of cross-examination:  If you do not put the contrary version to the witness, the trial judge is entitled (but not obliged)  “confrontation”—confronting the witness with to weigh the failure to cross-examine against the damaging facts which the witness cannot deny and accused (R. v. MacKinnon (1992), 72 C.C.C. (3d) which are inconsistent with the witness’s evidence; 113 (B.C.C.A.)).  “probing”—inquiring thoroughly into details of the Rarely will counsel be able to completely destroy ad- story to discover flaws; and verse evidence. Witnesses will almost never admit to  “insinuation”—the building up of a different ver- lying or colouring their testimony. The breakdown and sion of the evidence in chief by bringing out new confession while in the witness box is something seen facts and possibilities. only on television. Counsel, with preparation and experience, will develop Sometimes counsel is fortunate and has an opportunity their own style of cross-examination tailored to the con- to destroy a verbose witness who has offered an unlikely text. story on direct. The witness can be pressed for more and more detail. Silence on the part of counsel can be a good technique, driving the witness further and further into [§4.14] Limits of Cross-Examination defensive explanations. Although the scope of cross-examination is much wider Another method of attack is to draw statements from the than that of direct examination, it is not an unfettered witness that are inconsistent with the rest of their story right. or that can be disproved by other evidence. The cross-examiner may not intentionally insult or abuse Pre-trial statements made by a witness that conflict with a witness. In R. v. Ma, Ho and Lai (1978), 6 C.R. (3d) that witness’s testimony at trial may be used to impeach 325, the British Columbia Court of Appeal adopted the the credibility of the witness. Moreover, the prior incon- following guidelines from R. v. McLaughlin (1974), 15 sistent statement may be admitted as evidence of the C.C.C. (2d) 562 at 572 (Ont. C.A.): truth of its contents if, during a voir dire, the trial judge is satisfied that the statement is necessary and reliable. I acknowledge that the trial Judge has the right For example, a prior inconsistent statement may be ad- and duty to restrict cross-examination in all missible for the truth of its contents if it was made under cases where the evidence sought to be oath, a videotaped record of the statement exists, and the obtained is irrelevant, repetitive or in any other opposing party has a full opportunity to cross-examine manner incompatible with a fair and proper the witness at trial (R. v. B. (K.G.), [1993] 1 S.C.R. 740). trial. He must be vigilant in protecting a witness against vexatious and abusive More often, counsel will try to weaken evidence so that questioning… the judge cannot attach much weight to it. This can be effective when the evidence is circumstantial. Test the See also Brownell v. Brownell (1909), 42 S.C.R. 368 witness’s story against items of real evidence, such as (relevancy); R. v. Prince (1945), 85 C.C.C. 97

Criminal Procedure 60 (B.C.C.A.) (harassment); and R. v. Daly (1992), 16 ness interviews may be permitted to clear up honest mis- W.C.B. (2d) 622 (Ont. C.A.) (sarcasm). takes, ambiguities, or to clarify the points left obscure by cross-examination. While there are some situations in The answer to cross-examination on a collateral matter which communication may not be appropriate, the court (that is, a matter that is not relevant to a fact in issue) is will readily grant leave in most cases. See R. v. Mont- final and cannot be contradicted by other witnesses; you gomery (1998), 126 C.C.C. (3d) 251 (B.C.S.C.); “When are stuck with the answer given by the witness (R. v. May Counsel Talk To A Witness During Trial? – The Shewfelt (1972), 6 C.C.C. (2d) 304 (B.C.C.A.)). Cross- Unwritten Rules” by Brian McLaughlin in (1989) 47 examination on matters related to the credibility of the The Advocate 237 and “Speaking to Your Witness” in witness is permitted, but will be considered collateral if (1990) 48 The Advocate 565. not relevant to a matter in issue at the trial (R. v. Jackson and Woods (1974), 20 C.C.C. (2d) 113 (Ont. H.C.) and Dyck). Where the cross-examination on credibility is [§4.16] No-Evidence Motion directly relevant to a trial issue, answers given by the witness are not final and can be contradicted by other At the close of the Crown’s case, the defence has the evidence (R. v. Cassibo (1982), 70 C.C.C. (2d) 498 option to make a motion of no evidence. The basis of (Ont. C.A.); R. v. Jackson, [1985] B.C.D. Crim. Conv. such a motion is that the Crown has led no evidence to 5380-01 (C.A.)). prove one or more essential elements of the offence. If a jury is sitting, the motion is called a motion for a It is improper to ask one witness to comment on the ve- directed verdict. A successful no-evidence or directed racity of another witness, for example, by asking a wit- verdict motion will end with an order of acquittal. If ness to agree that another witness must be lying because unsuccessful, the trial continues, and the accused is put of inconsistent testimony (R. v. Brown and Murphy to their election on the calling of evidence. (1982), 1 C.C.C. (3d) 107 (Alta. C.A.), aff’d (1985), 21 C.C.C. (3d) 477 (S.C.C.); R. v. Ellard, 2003 BCCA 38). The defence can make a no-evidence motion, yet reserve its right to call evidence if the motion fails. The defence A witness may be cross-examined on the witness’s own must make it clear that it is reserving this right to avoid criminal record because the record is relevant in as- the judge ruling not just on the motion, but on the whole sessing credibility. A non-accused witness may also be case (R. v. Kavanagh (1972), 8 C.C.C. (2d) 296 cross-examined regarding the facts surrounding the of- (Ont. C.A.)). fences for which the witness was convicted. An accused person as a witness may be cross-examined on their own 1. The Rule criminal record pursuant to s. 12 of the Canada Evi- dence Act, but may not be cross-examined on the details For such a motion to succeed there must be no evi- of the offences (R. v. Menard (1996), 108 C.C.C. (3d) dence on which a jury, properly instructed and act- 424 (Ont. C.A.), aff’d (1998), 125 C.C.C. (3d) 416 ing reasonably, could have convicted the accused. (S.C.C.); and R. v. Bricker (1994), 90 C.C.C. (3d) 268 This is a question of law. The issue is the existence (Ont. C.A.)). or non-existence of evidence on a crucial element. The judge is not entitled to weigh or evaluate the [§4.15] Re-Examination evidence and must assume that a jury would have accepted all the evidence as tendered by the Crown’s witnesses. Neither is the judge entitled at The right to re-examine occurs when new matters have this point to assess the credibility of witnesses nor arisen on cross-examination. The purpose of re- to choose which parts of their evidence to accept or examination is to qualify or explain fresh evidence or reject (R. v. Morabito (1949), 93 C.C.C. 251 variations on evidence elicited on cross-examination. (S.C.C.) and U.S.A. v. Sheppard). New topics cannot be introduced, since counsel should have elicited any relevant evidence on direct examina- If a no-evidence motion is successful, the trial tion. Since counsel is examining their own witness, judge will acquit (when sitting without a jury) or, in counsel cannot ask leading questions; this is a very a jury trial, withdraw the case from the jury and en- common mistake and opposing counsel should be alert ter an acquittal (R. v. Rowbotham (1994), 90 C.C.C. for leading questions in re-examination. (3d) 449). Frequently, cross-examination will bring out an aspect 2. Circumstantial Evidence of direct evidence that a clever cross-examiner will leave unfinished. The re-examiner is prevented from At trial, the jury will be instructed that before bas- touching on it when the cross-examiner says “it arose on ing a guilty verdict on circumstantial evidence, they direct and you should have dealt with it there.” must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable infer- Counsel may not discuss the case with their witness be- ence to be drawn from the proven facts. As this is a tween cross-examination and re-examination unless op- question of weight to be attached to the evidence, a posing counsel consents or the court grants leave. Wit-

Criminal Procedure 61 matter solely within the purview of the trier of fact, 1. Whether to Call Evidence a no-evidence motion must of necessity fail when it The defence must determine whether to call the ac- is open to the trier of fact to infer guilt from a body cused or other witnesses at all. Some factors to of circumstantial evidence (R. v. Cooper (1997), 34 consider include the existence of a criminal record C.C.C. (2d) 18 (S.C.C.); R. v. Monteleone (1982), (which may be put to the accused on cross- 67 C.C.C. (2d) 489 (Ont. C.A.)). examination by the Crown or on direct by defence [§4.17] Insufficient Evidence Motion counsel), and the impression the accused is likely to have on the court (that is, does the accused appear to be a credible witness with a valid defence, or is An insufficient evidence motion is an argument at the the accused inarticulate or unimpressive). end of the Crown’s case, on the evidence as a whole. This time, the judge does weigh and evaluate the The accused may be convicted on a prima facie evidence and assess the credibility of the witnesses. The case and runs this risk if no evidence is called to judge draws proper inferences from proven facts and rebut it. However, the point at which the accused rules as to whether the Crown has proved its case should explain “can only be the point where the beyond a reasonable doubt. It is defence counsel’s final prosecution’s evidence, standing alone, is such that argument to the judge, since the submission is not made it would support a conclusion of guilt beyond a rea- until defence counsel has unequivocally elected to call sonable doubt” (R. v. Johnson (1993), 79 C.C.C. no evidence for the defence. The defence can first make (3d) 42 (Ont. C.A.)). a no-evidence motion and, if this fails, elect to call no Often, defence counsel will not know until the evidence in the defence’s own case and pursue an close of the Crown’s case whether to call evidence. argument of insufficient evidence. The most important Defence counsel may be able to rely on weaknesses factor is that by electing to bring this motion, the in the Crown’s case and its failure to prove essen- defence has first elected to call no evidence; if the tial elements on its own direct examination. De- motion fails, there will be a guilty verdict, and that is the fence counsel should not call a defence if they do end of the matter. not need to; otherwise counsel takes the risk of damaging the case for the defence. Request a brief [§4.18] Defence Case adjournment at the close of the Crown’s case. Ana- lyze the evidence presented so far to see if the When the defence elects to call evidence, counsel is en- Crown has made out its case. This is a critical and titled to make an opening statement to the court (see difficult decision in both complex and simple cases. s. 651(2)). As in the case of Crown openings, the defence opening is a unique opportunity to outline the case 2. Presenting the Evidence for the defence. The same general considerations apply Again, counsel should try to present the evidence as as in the Crown’s opening. Defence counsel should only effectively and persuasively as possible. This open in detail if counsel is confident that the defence means preparing it. Have a theory to which all the witnesses, including the accused, will deliver what is questions in direct and cross-examination will be promised. In a jury trial, any issue regarding the admis- directed. Get the story from the witnesses and pre- sibility of evidence should be addressed before the trial pare them as to dates, times, and the order in which judge and in the absence of the jury, before the evidence certain areas will be dealt with. Instruct them to lis- is referred to in the opening address. It is both embar- ten to the questions and to answer briefly and simp- rassing and potentially disastrous for the client if evi- ly. Ask them to speak loudly. dence is referred to in an opening address but is not led before the jury because of a valid objection raised by the Try to present the evidence in a logical order (often Crown, or if heard, becomes subject to a special instruc- chronological) and make every effort to find out be- tion from the trial judge that the evidence is not to be fore trial the answers the witnesses will give to any considered in deliberations. question asked either in direct or cross- examination. This may prevent the disastrous result In Canada, there is no rule as to the order in which wit- of having the client convicted through the client’s nesses for the defence can be called. The accused or de- own mouth or those of their own witnesses. fence counsel is completely free to decide whether the accused will testify and if so, in what order or sequence the accused will be called in relation to other defence witnesses. However, if a witness (including an accused) is in court while other witnesses testify, the trier of fact can give that evidence less weight given that it might have been tainted by exposure to other testimony.

Criminal Procedure 62 [§4.19] Cross-Examination of the Accused nesses. If the Crown seeks to cross-examine an accused on a statement made to a person in authority, The same basic considerations apply as in the Crown’s that statement must first have been subject to a voir case. Counsel acting for a co-accused must cross- dire and ruled voluntary and admissible (see Chap- examine a defence witness before the prosecutor cross- ter 5, §5.04—Statements of the Accused). Howev- examines (R. v. Woods and May (1853), 6 Cox C.C. 224 er, if there is more than one accused, the trial judge (C.C.)). has broad discretion to permit cross-examination of one accused by counsel for a co-accused on state- 1. Scope of Cross-Examination ments made to the police, without the necessity of a voir dire and without showing the statement to be Accused persons cannot be compelled to testify, but voluntary (R. v. Ma, Ho and Lai). if they give evidence, they must bear the consequences. Generally, the Crown cannot adduce evidence tending to show that the accused has been guilty of In the United States, a witness may decline to an- criminal acts other than those covered by the swer a question on the grounds that it may incrimi- Information for the purpose of inviting the nate them. In Canada, where we have a “use im- inference that the accused is a person likely from munity model,” an accused must answer incriminat- their criminal conduct and character to have ing questions but restrictions are imposed on use of committed the offence for which they are being such testimony in future proceedings. An accused tried. There may be cases in which Crown counsel witness may invoke the protection of s. 5 of the is able to successfully argue that conduct outside Canada Evidence Act, in which case, the answer the four corners of the indictment is relevant and given shall not be “used or admissible in evidence probative under the “similar fact” rule of evidence. against him” in another proceeding. The accused A voir dire is required to determine what part, if witness may rely also on s. 13 of the Charter of any, of a body of evidence outside the offence Rights and Freedoms. The Charter protection is charged may be lead in chief by the Crown, which broader and largely makes the s. 5 Canada Evi- in turn determines the availability of that evidence dence Act protection redundant. for cross-examination of the accused should he While the witness must claim the protection of s. 5, elect to testify (R. v. B.(C.R.) (1990), 55 C.C.C. s. 13 will automatically protect the witness and (3d) 1 (S.C.C.)). prevent the use of previous testimony for the pur- Subject to what would be proper “similar fact” pose of incrimination at any subsequent proceed- evidence, it is not open to the Crown to prove ing. through cross-examination that an accused is of bad Section 13 reads as follows: character in order to show that the accused is thereby more likely to have committed the offence A witness who testifies in any or is not credible (R. v. Davison, De Rosie and proceedings has the right not to MacArthur (1974), 20 C.C.C. (2d) 424 at 444 (Ont. have any incriminating evidence C.A.), adopted in R. v. Morris (1978), 6 C.R. (3d) so given used to incriminate that 36 at 54-55 (S.C.C.)). witness in any other proceedings, except in a prosecution for per- 2. Previous Convictions jury or for the giving of contradictory evidence. Any witness, including the accused, may be cross- examined as to previous convictions, but this is rel- While the Crown cannot simply produce a tran- evant only to the credibility of the witness (Canada script of the evidence of an accused from one trial Evidence Act, s. 12(1) and R. v. Burgar, 2010 as part of its evidence in chief to prove criminality ABCA 318). Proof of previous convictions by ad- at a second trial, the Crown may put to an accused mission of the accused or otherwise is not proof their prior inconsistent statements to impeach cred- that the accused committed the offence for which ibility. If this is done, the statement is not tendered they are being tried. as evidence to establish the proof of its contents, but is tendered for the purpose of revealing a con- Section 12 allows admission only of prior convic- tradiction between what the accused is saying now tions and not prior charges (R. v. Koufis (1941), 76 and what the accused said on a previous occasion. C.C.C. 161 (S.C.C.); R. v. McLaughlan (1974), 20 However, cross-examination on prior inconsistent C.C.C. (2d) 59 (Ont. C.A.)). testimony aimed solely at incriminating the accused The accused may also be examined in direct regard- will not be permitted (R. v. Nedelcu, 2012 SCC 59). ing their prior criminal record and this does not The accused can be cross-examined as to prior con- thereby put their character in issue if done for tacti- tradictory statements in the same way as other wit- cal reasons (if it is admitted). But if the criminal

Criminal Procedure 63 record is denied, this opens up character under [§4.20] Defence Re-Examination s. 666 (Morris). The considerations are the same as those in re- In addition to having specific convictions put to examination by the Crown (see §4.15). The defence will them, the accused may be asked simply: Do you try to weaken and qualify any damaging new matters have a criminal record? (R. v. Clark (1977), 41 that have arisen on cross-examination by the Crown. C.C.C. (2d) 561 (B.C.C.A.)). Such cross- examination also permits questions concerning a juvenile “record”: Morris. Discharges are not con- [§4.21] Rebuttal or Evidence in Reply victions that can be put to the accused (R. v. Dan- son (1982), 66 C.C.C. (2d) 369 (Ont. C.A.)). Rebuttal evidence is evidence tendered by the Crown. It happens after the close of the case for the defence and it Crown counsel will sometimes agree not to put is used to rebut or contradict evidence adduced by the highly prejudicial past convictions to an accused on defence. It should not be confused with the re-opening cross-examination. of the Crown’s case, which, at times, may be permitted The trial judge has a discretion to prevent cross- after the Crown’s case is closed. See e.g. R. v. Robillard examination on criminal records (R. v. Corbett (1978), 41 C.C.C. (2d) 1 (S.C.C.); R. v. M.P.B. (1994), (1988), 41 C.C.C. (3d) 385 (S.C.C.)). Since Cor- 89 C.C.C. (3d) 289 (S.C.C.) and R. v. G. (S.G.) (1997), bett, the courts have been somewhat inconsistent in 116 C.C.C. (3d) 193 (S.C.C.), on the latitude given to their exercise of this discretion. For many years fol- the Crown to re-open its case to lead evidence which lowing Corbett, trial judges were generally pre- may have been omitted due to inadvertence, or even pared to prohibit Crown counsel from cross- newly-discovered evidence which is material and examining on offences which, unlike theft and probative. fraud and the like, lack a “dishonesty” component. The general rule is that rebuttal may not merely confirm For example, the trial court might prohibit cross- or restate the case for the Crown, but must be strictly examination regarding prior convictions for offenc- confined to rebutting or contradicting the evidence ad- es involving violence, particularly where the induced in the case for the defence (R. v. John (1985), 23 dictment before the court alleged similar conduct. C.C.C. (3d) 326 (S.C.C.)). Our courts have moved away from that approach, ruling more and more often that cross-examination 1. When Rebuttal is Proper on any sort of prior criminal history is fair game. The BC Court of Appeal endorsed this approach in The decision to let the Crown call rebuttal evidence R. v. Fengstad, 1989 CanLII 5168 (B.C.C.A.). is within the discretion of the judge. The Crown will apply to call such evidence when, for example, If permitted, and if not already part of the accused’s the accused puts forward a defence which takes the evidence in chief, the Crown in cross-examination Crown by surprise. The Crown may foresee a cer- will put the accused’s criminal record to the ac- tain defence without being able to assume it will in cused. A jury will be instructed that they may con- fact emerge (R. v. Coombs (1977), 35 C.C.C. (2d) sider the criminal record of the accused solely and 85 (B.C.C.A.)). The general rule is that rebuttal ev- exclusively for the purpose of determining the de- idence should not be allowed when it was both in gree of credibility which might be attached to the the possession of the Crown and relevant to the accused evidence. They will also be instructed that Crown’s case in chief. What constitutes proper a criminal record is not evidence that the accused is Crown rebuttal was authoritatively reviewed by the more likely to have committed criminal acts in gen- Supreme Court of Canada in R. v. Krause (1986), eral, or the particular offences in the indictment be- 29 C.C.C. (3d) 385 at 390: fore the court (R. v. Leforte (1961), 130 C.C.C. 318 (B.C.C.A.); R. v. Williams and Irvine, [1969] 3 The general rule is that the Crown, or in C.C.C. 108 (Ont. C.A.)). civil matters the plaintiff, will not be allowed to split its case. The Crown or the When providing proof of previous convictions, evi- plaintiff must produce and enter in its own dence of the date, location, offence and sentence case all the clearly relevant evidence it imposed are the only admissible aspects of the has, or that it intends to rely upon, to es- criminal record of the accused. When the accused is tablish its case with respect to all the is- being cross-examined, the circumstances of past of- sues raised in the pleadings, in a criminal fences are not admissible (R. v. Bricker (1994), 90 case, the indictment and any particu- C.C.C. (3d) 268 (Ont. C.A.)). lars … This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence—as much as it

Criminal Procedure 64 deemed necessary at the outset—then to  character of the accused put in issue by the ac- close the case and after the defence is cused—the Crown can rebut evidence of good complete to add further evidence to bol- character by evidence of bad character (R. v. ster the position originally advanced. The McFadden (1981), 28 C.R. (3d) 33 underlying reason for this rule is that the (B.C.C.A.)); and defendant or the accused is entitled at the  defence evidence led to impeach the credibil- close of the Crown’s case to have before it ity of a Crown witness. The Crown may call the full case for the Crown so that it is rebuttal to rehabilitate the witness (Toohey v. known from the outset what must be met Metropolitan Police Commissioner (1964), 49 in response. Cr. App. R. 148 (H.L.)). The plaintiff or the Crown may be allowed to call evidence in rebuttal after [§4.22] Surrebuttal completion of the defence case, where the defence has raised some new matter or de- If the Crown’s rebuttal evidence is new evidence, the fence which the Crown has had no oppor- defence may have the opportunity to call surrebuttal ev- tunity to deal with and which the Crown idence to meet the Crown’s rebuttal evidence. For ex- or the plaintiff could not reasonably have ample, the Crown may introduce evidence denying the anticipated. But rebuttal will not be per- position advanced by the defence or establishing an al- mitted regarding matters that merely con- ternate explanation for the accused’s conduct, which is firm or reinforce earlier evidence adduced inconsistent with the defence. If the defence did not in the Crown’s case, which could have have the opportunity to deal with that evidence in its been brought before the defence was own case, then the defence may be entitled to call surre- made. It will be permitted only when it is buttal evidence. necessary to insure that at the end of the day each party will have had an equal op- The right of an accused to fully answer the case against portunity to hear and respond to the full them also applies to rebuttal evidence, so the rules re- submissions of the other. garding the permissible scope of surrebuttal will be applied liberally in favour of the accused (see R. v. Ewert Also see the Supreme Court of Canada’s treatment (1989), 52 C.C.C. (3d) 280 (C.A.)). of this rule in R. v. Aalders (1993), 82 C.C.C. (3d) 215, in which Crown counsel was entitled to lead The calling of rebuttal and surrebuttal evidence is ex- rebuttal evidence relevant to a robbery, which was ceedingly rare. itself determined to be an integral and essential aspect of a case of planned and pre-meditated first degree murder. [§4.23] Addresses of Counsel Although rebuttal on collateral matters is generally 1. Order not allowed, keep statutory provisions allowing rebuttal in mind. For example, s. 11 of the Canada The accused or the accused’s counsel is entitled to Evidence Act allows the proof of a previous incon- present argument to the judge last if the defence has sistent statement relative to the subject matter of called no witnesses to give evidence (ss. 650(3) and the case where such a statement is not admitted in 651(3)). However, if the defence has called wit- cross-examination, and s. 12 of the Act allows the nesses, or if any witnesses are called on behalf of proof of convictions that are denied by the witness. one of the accused in a joint trial, then the defence presents argument first (s. 651(3) and (4)). 2. Examples of Rebuttal The constitutional validity of those sections in the Examples of subject matter for rebuttal include: Criminal Code that mandate the order of addresses where defence evidence is called has been  self-defence or provocation—the Crown can- challenged. The Supreme Court of Canada not assume the accused will be called to give determined in R. v. Rose, [1998] 3 S.C.R. 262, that such evidence; these sections of the Criminal Code did not infringe  alibi—note that the Crown may only attack the the Charter. The court also recognized that “in the material parts of the alibi (R. v. Latour (1976), clearest of cases” (that is, almost never), there may 33 C.C.C. (2d) 377 (S.C.C.)); be a limited right of reply following Crown counsel’s address to the jury. The court held that  drunkenness; the right of reply would arise when some part of the  mental disorder; Crown’s address could not adequately be dealt with in the judge’s charge, and to deny a reply would impact upon the defendant’s ability to make full

Criminal Procedure 65 answer and defence or prejudice the defendant’s counsel anticipates from the other side. If there is right to a fair trial. The court offered as examples: a not much in the way of affirmative evidence as a Crown address which advanced a significant defence, base defence argument upon what the change in the Crown’s theory of liability against an Crown has failed to prove. At a trial before a judge accused which could not fairly have been alone, defence counsel should have copies of any anticipated by the defence; or a situation in which authorities to be cited or relied upon for the judge the Crown has simply misled the defence as to its and the Crown. Defence counsel should formulate theory of liability. the general principles of law that the defence wants the court to accept and offer the cases in support. 2. Content Be selective, highlighting the main points, and Counsel should plan an address, make notes during speaking simply yet with conviction. the trial, and think about a logical order for presentation. [§4.24] Judge’s Charge on a Jury Trial Counsel may urge the judge to find the existence of disputed facts if they are capable of rational infer- Once both counsel have completed their addresses, the ence from the existence of proven facts and not judge will charge the jury. When charging the jury, the merely speculation. All references to the evidence judge will probably recollect relevant facts. The judge must be absolutely accurate. will also deal with the theory of the Crown and with the theory of the defence. The judge will then proceed to Counsel should be prepared to argue the charges on deal with the law as it relates to the charge before the the Information. On included offences counsel jury. should be prepared to argue also that some of the charges overlap and that conviction on all counts is It is important to thoroughly prepare for the charge to inappropriate. For the general principles, see R. v. the jury ahead of time. It has become increasingly com- Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.); R. mon for trial judges to give counsel a draft copy of the v. Rinnie (1970), 3 C.C.C. 218 (Alta. S.C. App. charge before the judge delivers it to the jury. This is Div.); R. v. Fergusson (1961), 132 C.C.C. 112 counsel’s opportunity to make suggestions regarding the (S.C.C.); R. v. Manuel (1960), 128 C.C.C. 383 trial judge’s treatment of both the evidence and the law. (B.C.C.A.); and R. v. Luckett (1980), 50 C.C.C. Even if the judge is not using a written draft charge, it is (2d) 489 (S.C.C.). common for the judge to seek the input and submissions from counsel on particular issues before the charge is given to the jury. 3. Crown Counsel should be particularly careful to follow the The Crown will stress the evidence that establishes judge’s charge so that they can make the judge aware of the proof of each essential element of its case be- any errors or omissions concerning the law that the yond a reasonable doubt, and then deal with any de- judge has set out to the jury. Once the judge completes fence raised or anticipated. The Crown must be fair the charge, the jury will be excused and the judge will and, while firmly highlighting probative evidence, then invite counsel to comment upon the charge. At this not press for conviction unless this is justified on time, counsel should advise the judge of any errors in the evidence. the charge that counsel feels may have occurred. The judge may invite the jury back and correct the charge, or 4. Defence the judge may feel that this is not appropriate, in which Defence counsel will try to emphasize weaknesses case the jury will be allowed to continue with its delib- in the case for the Crown and stress the evidence erations. The judge’s charge to the jury has been de- for the defence. scribed as also being the judge’s address to the Court of Appeal. It is important to remember that there are sever- The defence should first explain the theory of the al types of errors that should be brought to the judge’s defence simply, and then expand the theory using a attention for correction, including the following: thorough analysis of the evidence or absence of evidence which defence counsel argues should leave  errors that are unfavourable to the accused and the jury in a state of reasonable doubt. that, when corrected, will make acquittal more likely (failure to seek a correction may weigh Defence counsel should point out inconsistencies against the accused on an appeal); and and contradictions in the evidence and attack the credibility of the witnesses (where reasonable to do  errors that are favourable to the accused and so). Defence counsel should examine each item of that, if uncorrected, may allow a Crown appeal adverse evidence to see if counsel can draw some (whether the defence should raise such errors favourable argument from it. Counsel should try to will depend on their nature). explain adverse facts and answer arguments that

Criminal Procedure 66 The nature of the jury charge differs with the circum- During the deliberations of the jury, you may find that stances of each individual case, but the following is a the jury requests further instructions from the judge. The list of points that the judge will almost inevitably deal request may be about a point of law or it may be in the with in the charge to the jury: nature of a request to clarify some of the evidence. On occasion you may find that a portion of a person’s evi-  facts for the jury alone to decide upon; dence is read to the jury by the court reporter. If there is  law for the judge alone to set down; some dispute as to the propriety of the jury receiving certain information or instruction, counsel may be called  the facts are those that the jury recalls; upon to argue the correct course of action to be followed  presumption of innocence; by the judge. For this reason, it is advisable to remain clear-headed during the occasionally lengthy jury delib-  onus of proof on Crown; erations.  proof beyond a reasonable doubt;

 definition of reasonable doubt;  consider whole of the evidence;  case decided on evidence alone;  what credibility means;  jury can accept whole or part of any witness’s evidence;  definition of direct evidence;  definition of circumstantial evidence;  the Rule in Hodge’s Case;  the law with respect to the offence;  what the evidence consists of;  verdicts open to the jury;  verdicts must be unanimous;  theory of the Crown;  theory of the defence;  corroboration;  accomplice evidence;  similar fact evidence;  doctrine of recent possession;  included offences; and  particular defences: drunkenness, self-defence, mental disorder, duress, accident, identity, consent, provocation, defence of property, entrapment. This list is not exhaustive. Counsel should create a similar list and check off the various points as the judge deals with them in the charge. CLE’s loose-leaf manual Canadian Criminal Jury In- structions (CRIMJI), by Professor G.A. Ferguson, Mad- am Justice Elizabeth Bennett, and Mr. Justice Michael Dambrot, is the preferred resource in British Columbia. It includes standard jury charges and annotations. The Canadian Judicial Council’s model jury instructions (available online) and Watt’s Manual of Criminal Jury Instructions are also useful.

Criminal Procedure

67 Chapter 5 In deciding whether the Crown has proven guilt beyond a reasonable doubt, a trier of fact must look at the evidence as a whole, rather than deciding whether each individual piece of evidence has been Evidence1 proven beyond a reasonable doubt. The standard of proof beyond a reasonable doubt is not to be applied to individual pieces of evidence (R. v. Morin, For further discussion of topics covered by this chapter, [1988] 2 S.C.R. 345). Since the Crown bears the practitioners may refer to the following texts: burden of proof beyond a reasonable doubt, a trier of fact need not accept a given piece of evidence as  Lederman, Bryant & Fuerst, Sopinka, Lederman true in order for that evidence to raise a reasonable and Bryant—The Law of Evidence, 5th ed. doubt (R. v. Miller (1991), 68 C.C.C. (3d) 517 (Ont. Toronto: LexisNexis, 2018 (civil and criminal C.A.). In a case where the accused testifies and de- law); nies their guilt, this principle means that the trier of  The Honourable Justice S. Casey Hill, et al, fact need not accept the accused’s (exculpatory) McWilliams’ Canadian Criminal Evidence, testimony to acquit the accused. 5th ed. Toronto: Thomson Reuters (loose-leaf); The Supreme Court of Canada in R. v. W.(D.)  David M. Paciocco, Palma Paciocco, and Lee (1991), 63 C.C.C. (3d) 397 held that, when an Stuesser, The Law of Evidence, 8th ed. Toronto: accused testifies, a trial judge should instruct a jury Irwin Law, 2020 (a well-regarded summary of (or the judge, in a judge-alone trial), as follows: the law); First, if you believe the evidence of the  The Honourable Mr. Justice David Watt, Watt’s accused, obviously you must acquit. Manual of Criminal Evidence. Toronto: Secondly, if you do not believe the Carswell, 2020 (a very helpful courtroom aid); testimony of the accused but you are left in  Annual Review of Law & Practice. Vancouver: reasonable doubt by it, you must acquit. Continuing Legal Education Society of British Thirdly, even if you are not left in doubt by Columbia (summarizes recent decisions); and the evidence of the accused, you must ask  Wigmore on Evidence (the most-cited historical yourself whether, on the basis of the treatise, available on Heinonline.org). evidence which you do accept, you are convinced beyond a reasonable doubt by [§5.01] Burden of Proof and Standard of that evidence of the guilt of the accused. Proof The British Columbia Court of Appeal supplemented this model instruction in Regina v. C.W.H. 1. General Rule (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) with the following: The Crown has the primary or “legal” burden of proof throughout the trial and must prove all essen- If, after a careful consideration of all of tial elements of the offence, including the actus re- the evidence, you are unable to decide us and the mens rea of the offence, beyond a rea- whom to believe, you must acquit. sonable doubt. The accused is presumed innocent In R. v. J.H.S., 2008 SCC 30, the Supreme Court re- until the Crown proves the accused’s guilt to the interpreted the test from R. v. W.(D.), holding that standard of “proof beyond a reasonable doubt” the three steps are not a “magic incantation” requir- (Woolmington v. D.P.P., [1935] A.C. 462; Canadi- ing specific wording. However, a judge or jury an Charter of Rights and Freedoms, s. 11(d)). A must understand these key principles: “reasonable doubt” is a doubt arising from the evidence or the lack of evidence, and is closer to a cer-  an accused’s lack of credibility does not tainty than to proof on the balance of probabilities prove the accused’s guilt; (R. v. Lifchus, [1997] 3 S.C.R 320; R. v. Starr,  one may accept some of an accused’s testi- [2000] 2 S.C.R. 144). mony while disbelieving other parts;

 one must consider all of the evidence in de- 1 Micah Rankin, Crown Counsel, Prosecution Support Unit, ciding whether there is any reasonable kindly updated this chapter in February 2021. Previously revised doubt; and by Joseph J. Blazina (2016–2019); Marian K. Brown (2004–  any reasonable doubt must be resolved in 2010); S. David Frankel (1996–2001); Geoffrey Barrow (1995); favour of the accused. and Michael Klein (1994).

Criminal Procedure 68 Although the Crown always bears the burden of A number of these statutory presumptions have proof beyond a reasonable doubt, when the accused been challenged under s. 11(d) of the Charter, advances a so-called “affirmative” defence, such as which enshrines the right to be presumed innocent the defence of self-defence, provocation or intoxi- until proven guilty. In R. v. Oakes (1986), 24 cation, the accused bears an “evidentiary” burden C.C.C. (3d) 321 (S.C.C.), the court held that the of pointing to some evidence that has been adduced Charter requires, at a minimum, that an individual at trial, either in the Crown’s case in chief or in the must be proven guilty beyond a reasonable doubt, defence case, that gives an air of reality to that par- and the state must bear that burden of proof. In R. ticular defence. If there is no air of reality to the de- v. Downey, [1992] 2 S.C.R. 10, the court held that a fence, the accused cannot rely on it. If the evidence statutory presumption will not infringe the Charter supports an air of reality to the defence, the burden only where proof of a basic fact included in a pre- shifts back to the Crown to disprove that defence sumption leads “inexorably” to proof of the pre- on the standard of proof beyond a reasonable doubt sumed fact. (R. v. Cinous; 2002 SCC 29; R. v. Fontaine, 2004 In some cases, reverse onus provisions were found SCC 27). to infringe s. 11(d) of the Charter but were upheld as being demonstrably justified under s. 1 of the 2. Statutory Presumptions That Shift the Burden Charter. In R. v. Chaulk (1990), 62 C.C.C. (3d) of Proof 193, the Supreme Court of Canada upheld the re- The Criminal Code includes certain statutory pre- quirement that an accused prove the defence of sumptions that shift the burden of proving or dis- what was then called “insanity” (now, “not crimi- proving a particular fact from the Crown to the ac- nally responsible by reason of mental disorder”) on cused. Some such presumptions only require the a balance of probabilities. Similar reasoning was accused to point to “some” evidence, either in the applied in R. v. Stone (1999), 134 C.C.C. (3d) 353 Crown case or adduced by the accused, in order to (S.C.C.) with regard to the defence of automatism. raise a reasonable doubt as to the existence (or ab- It should be noted that the recent amendments to sence) of the presumed fact. These presumptions the Criminal Code abolished several of the remain- are said to shift an “evidentiary” or “secondary” ing statutory presumptions, many of which were of burden of proof onto the accused. limited application in any event. The Criminal Code also includes other presumptions that shift the “primary” or “legal” burden of 3. Inferences From Evidence proof to the accused. These are often referred to as A judge or jury may make logical inferences from “reverse onus” provisions. The trier of fact is re- evidence, especially in cases of circumstantial evi- quired to apply the presumption unless the accused dence. For instance, possession of property or disproves it on a balance of probabilities. An ex- drugs can be inferred from their presence in a resi- ample of this type of presumption is found in dence over which the accused has exclusive or s. 320.35 of the Criminal Code: primary care and control (R. v. Fisher, 2005 BCCA In proceedings in respect of an offence un- 444). Similarly, an accused may be convicted of a der section 320.14 or 320.15, if it is proved break and enter where the accused’s fingerprints that the accused occupied the seat or posi- are found on an item inside the premises (R. v. tion ordinarily occupied by a person who O’Neill, [1996] 71 B.C.A.C. 295). operates a conveyance, the accused is pre- Other common evidentiary inferences include: sumed to have been operating the conveyance unless they establish that they did not (a) The “common sense inference” that people in- occupy that seat or position for the purpose tend the natural consequences of their actions of setting the conveyance in motion. (Regina v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.)) (But note that In some cases, a single Criminal Code section may any evidence that creates a reasonable doubt contain both types of presumptions. One example about the accused’s actual intent will displace of this type of provision is s. 349, which defines the this inference.); and offence of being unlawfully in a dwelling house. Section 349(1) requires an accused to establish (on (b) The “doctrine of recent possession,” which a balance of probabilities) the existence of a “law- provides that on a charge of possession of sto- ful excuse” to be in the dwelling house, and len property, the unexplained possession of re- s. 349(2) provides that in the absence of “any evi- cently-stolen goods permits an inference that dence to the contrary”, the absence of such a lawful the accused knew that the goods were stolen excuse is proof that the accused entered the dwell- (R. v. Kowlyk [1988], 2 S.C.R. 59). This infer- ing house with the intent to commit an indictable ence is not mandatory and cannot be drawn if offence therein. the accused gives an explanation for posses-

Criminal Procedure 69 sion of the goods which could reasonably be 932 (Ont. S.C.J.)). While a witness’s testimony true. identifying an accused may be challenged if the witness has given different descriptions at different Where the accused does not testify, the accused’s times, the trier of fact may only rely on prior res gestae statements to other witnesses may pro- descriptions given by the witness for the limited vide an explanation that will displace the inference purpose of assessing the reliability and credibility (R. v. Crossley (1997), 117 C.C.C. (3d) 533 of the witness’s testimony. Evidence of the (B.C.C.A.)). witness’s prior descriptions is only admissible for the truth of its substantive contents if it satisfies the [§5.02] Eyewitness Identification of the “principled approach” to the rule against hearsay or Accused is admissible as past recollection recorded (R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.); R. v. Highly-publicized cases of wrongful convictions have Campbell, 2006 BCCA 109). resulted in close scrutiny of all identification evidence, The weaknesses and dangers inherent in identifica- and judges now carefully caution themselves, or the ju- tion evidence are most pronounced where a witness ry, regarding identification of the accused (R. v. So- is asked to identify a person previously unknown to phonow (No. 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.), the witness whom the witness saw only briefly. leave to appeal refused (1986), 54 C.R. (3d) xxvii Where the witness purports to recognize someone (S.C.C.)). whom the witness has known quite well for some A prudent Crown will warn witnesses to be fair and cau- time prior to the sighting, the issue is not really one tious with respect to identification of the accused. of identification—the issue is whether the circum- Where identity is in issue, competent defence counsel stances at the time of the offence were such that the will often find much to cross-examine those witnesses witness could reliably recognize the accused (R. v. about, including the length of time they had to make the Aburto, 2008 BCCA 78; R. v. Bardales (1995), 101 observation, the quality of the lighting or the witness’s C.C.C. (3d) 289 (B.C.C.A.), aff’d [1996] 2 S.C.R. eyesight, the presence of objects or persons that inter- 461). fered with the witness’s observations, and the level of detail in the identification itself. In many cases, identifi- 2. Police “Line-ups” and Photo Packs cation of the accused does not depend solely upon eyewitnesses, but rather depends upon a combination of Physical “line-ups” of suspects are rare now, but a circumstantial evidence, eyewitness evidence, and some- suspect is entitled to consult a lawyer before being times forensic evidence. Normally, there are discrepan- presented for viewing by a witness (R. v. Leclair cies among eyewitness descriptions, and sometimes and Ross (1989), 46 C.C.C. (3d) 129 (S.C.C)). Re- there are irregularities in police procedure. Counsel for fusal to participate in a line-up must not be regard- the defence need to bring these matters to the attention ed as evidence of guilt (R. v. Shortreed (1990), 54 of the judge or jury, whose responsibility it is to careful- C.C.C. (3d) 292 (Ont. C.A.)). An unfair line-up, ly consider all the evidence, including its flaws (see R. v. where the suspect is presented alone or with dissim- Whitford, 2006 BCCA 32). ilar persons, will greatly weaken the identification. More commonly, witnesses are shown a photo pack 1. Descriptions of the Accused or series of photographs, which counsel should scrutinize for fairness in the choice of photographs A witness’s identification of an accused in the and the manner in which police presented them to a courtroom, by itself, is usually accorded little witness. Although the report on the Sophonow In- evidentiary weight (see the reasons of Madam quiry recommended certain specific procedures for Justice Rowles, in dissent, in R. v. Reitsma (1997), police officers who show photo packs to witnesses, 97 B.C.A.C. 203, adopted at [1998] 1 S.C.R. 769). those recommendations do not have the force of To have evidentiary weight, in-court recognition law, and photo identification is not excluded if should be supported by the witness’s testimony those procedures were not followed. Instead, the describing what the witness remembers about weight of photo identification depends upon the details of the accused’s appearance when first seen fairness of the procedure used in the particular case (R. v. McKay (1996), 61 W.W.R. 528 (B.C.C.A.); (R. v. Doyle, 2007 BCCA 587). R. v. Williams (1982), 66 C.C.C. (2d) 231 (Ont. C.A.)). The “honest but mistaken” witness is not Where a witness has seen or been shown a photo- uncommon in identification cases, as the witness’s graph of the accused prior to court and was advised ability to observe detail is always dependent upon or led to believe that the person in that photograph distance, angle, lighting, duration, and other factors is the person who committed the offence, this may which should be explored in examination and taint their subsequent in-court identification of the cross-examination (R. v. Gordon, [2002] O.J. No. accused as the offender. Similarly, if the witness

Criminal Procedure 70 has seen images of the accused in media, that too Evidence on a voir dire may consist of the examination may taint their courtroom identification evidence and cross-examination of witnesses, including the ac- (R. v. Hibbert (2002), 163 C.C.C. (3d) 129 cused. If the accused testifies on a voir dire, their evi- (B.C.C.A.); R. v. Smierciak, (1946), 87 C.C.C. 175 dence is not part of the trial, and the accused need not (Ont. C.A.)). testify later during the trial. Exhibits such as an expert’s report or the recorded statements of the accused are en- Even if a witness at trial no longer recognizes the tered as exhibits on the voir dire, separate from exhibits accused, the Crown can lead evidence that the wit- that are evidence on the trial. ness previously identified the accused’s photograph, provided that the witness confirms in court Counsel should advise the court at the pre-trial confer- that they previously identified the photograph (Tat). ence, or at the beginning of the trial, if counsel anticipates any voir dire. Since the application is based on an objection to the admissibility of the evidence, the appli- 3. Accused Sitting in Body of Courtroom cation for a voir dire must be made before, and certainly When identification of the accused is in issue, de- no later, than when the evidence is tendered (R. v. fence counsel may apply to the judge to permit the Kutynec (1991), 70 C.C.C. (3d) 289 (Ont. C.A.)). accused to sit in the public area of the courtroom, In a trial without a jury, the judge declares a voir dire, so that a witness will not make any assumption hears the evidence at issue, and rules on its about the offender’s identity based on where the admissibility. If the evidence is ruled admissible, Crown accused is sitting (R. v. Levogiannis (1993), 85 and defence counsel can agree that the evidence in the C.C.C. (3d) 327 (S.C.C.)). Of course, seating an ac- voir dire (or part of it) then becomes evidence in the cused in an otherwise empty courtroom where only trial, to avoid repeating the evidence. When “rolling counsel and the judge are present does little to ad- over” evidence from a voir dire into the trial, counsel vance the objective of an impartial identification. must take care to clearly state on the record which pieces of evidence are admissible and inadmissible in 4. Video Evidence of an Offence the trial proper: R. v. Ahmed-Kadir, 2015 BCCA 346. Photographs and video recordings may be tendered During a jury trial, counsel should advise the court as exhibits upon testimony by a witness (not neces- whenever admissibility of evidence is at issue (without sarily the photographer) who can say that the imag- saying what the evidence is) so that the jury can be ex- es accurately depict what they purport to show (R. cused, and the voir dire commenced. The judge hears v. Bannister (1936), 66 C.C.C. 38 (N.B.S.C. App. the evidence and arguments and decides whether the Div.)). The judge or jury may recognize the ac- evidence is admissible. If the judge rules that the evi- cused in a video recording of the offence, if the re- dence is admissible, the evidence is called again before cording is of sufficient clarity and duration (R. v. the jury. In jury trials, voir dires are often heard and de- Nikolovski (1996), 111 C.C.C. (3d) 403 (S.C.C.)). cided after the jury has been empanelled but before the Normally, it is for the trier of fact to decide if the jury is required to attend court to begin hearing evi- video or photo evidence sufficiently identifies an dence. accused. In some cases, however, a witness who In some circumstances it may not be necessary to call knows the accused well may be called upon to iden- evidence on a voir dire. The BC Court of Appeal has tify the accused (R. v. Leaney [1989] 2 S.C.R. 393). directed trial judges to consider in each case whether a The judge must permit counsel to tender any other formal voir dire with oral testimony is required, or evidence about the identification or the video re- whether the issues can be determined on the basis of a cording, and to make submissions on any limita- summary of the evidence and submissions of counsel (R. tions of the video images (R. v. T.A.K., 2006 BCCA v. Vukelich, (1996), 108 C.C.C. (3d) 193). Given this 105). directive, counsel seriously contesting the admissibility of evidence should be prepared to explain the need for a [§5.03] Voir Dire formal voir dire.

A voir dire is a procedure in which the trial proper is [§5.04] Statements of the Accused suspended, and the court embarks upon a trial within a trial to determine the admissibility of a certain item of 1. General evidence. Any type of evidence that requires a ruling as to admissibility may be the subject of a voir dire. Some Only the Crown may choose to tender as evidence examples are the admissibility of statements of the ac- the utterances or statements of an accused; the accused; the admissibility of hearsay; and the admissibility cused may not tender “self-serving” evidence of of evidence obtained in a search that is alleged to violate what the accused said to police or other persons the Charter. (with the exception of evidence that is admissible

Criminal Procedure 71 as part of the res gestae; see the discussion of res voluntariness and dispense with the need for a voir gestae statements at §5.06(2)). Also, an accused’s dire, but such waiver must be clear and utterances or statements can only be used as evi- unequivocal (R. v. Park (1981), 59 C.C.C. (2d) 385 dence with regard to that accused, and are not ad- (S.C.C.)). missible as evidence with regard to any co-accused. An accused’s utterance that is the actus reus, or Perhaps the most common reason to hold a voir part of the offence charged, is admissible without a dire is to determine whether statements of the ac- voir dire. These are some examples: cused, made to a person in authority, are (a) volun-  threatening words, where the offence is ut- tary and (b) obtained without violating either the tering threats; Charter right to silence (s. 7) or right to counsel (s. 10(b)). A single voir dire may deal with all these  words about refusing to give a breath sam- issues, but the onus of proof differs: there is an ple, where the offence is refusal; onus on the Crown to prove voluntariness of the  false or misleading information given to accused’s statements beyond a reasonable doubt, police, such as giving a false name or re- and there is an onus on the defence to prove Char- fusing to identify oneself, where the of- ter violations on a balance of probabilities. fence is obstruction or public mischief; and In a Charter voir dire, although the application and  words such as “stick ‘em up,” where the the burden of proof are both the accused’s, the offence is robbery. Crown will often call police officers or other witnesses to testify in chief, so that the accused can cross-examine them. To prove a Charter breach, 2. Persons in Authority the defence may either rely solely on the cross- Voluntariness is at issue only when the accused examination of witnesses called by the Crown, or speaks to a “person in authority,” typically a police may choose to call its own witnesses, including the officer or prison guard. It may be argued that an accused. employer, parent, or other person is “in authority” To prove voluntariness, the Crown will usually call if the accused reasonably believed that the person as witnesses on the voir dire all police officers and could influence or control the investigation or pros- other “persons in authority” who dealt directly with ecution. Defence counsel must seek a voir dire in the accused to such an extent that they may have af- such cases, or the judge may declare a voir dire of fected the voluntariness of the accused’s utterances. the judge’s own motion (R. v. S.G.T., 2010 SCC 20; Again, the defence may rely solely on the evidence R. v. Hodgson, [1998] 2 S.C.R. 449; R. v. Wells, of Crown witnesses, or may call its own witnesses, [1998] 2 S.C.R. 517). including the accused. An undercover police officer is not regarded as a An accused is entitled to testify on a voir dire “person in authority” if the accused did not subjec- without prejudice to the accused’s right to not take tively believe that person to be a police officer and the stand before the jury. The accused may be therefore felt no duty to speak (R. v. Liew (1999), examined and cross-examined about statements 137 C.C.C. (3d) 353 (S.C.C.); R. v. Grandinetti, made to persons in authority, but not about their 2005 SCC 5). A Justice of the Peace or a Provincial innocence or guilt (R. v. Erven, [1979] 1 SCR 926). Court judge presiding at a bail hearing is also not a Crown counsel are not permitted to use a voir dire person in authority, and an accused’s statements at as a forum for unfair questioning of the accused a bail hearing need not be proven voluntary (R. v. and must confine cross-examination to what is Tran, 1995 BCCA 535). If the statements in issue necessary to determining the issues on the voir dire. were made by the accused’s lawyer, they cannot be Inconsistencies between the testimony of an directly attributed to the accused. accused on a voir dire and at trial can be used to impugn credibility but not to establish culpability 3. Voluntariness (R. v. Cochrane, 2018 ABCA 80). The classic expression of the “confessions rule” is The Crown must prove that the accused’s found in R. v. Ibrahim, [1914] A.C. 599 at 609, statements were voluntary, both if the Crown where Lord Sumner stated: intends to tender those statements as part of its case, and also if the Crown wants to be able to … no statement by an accused is admissi- cross-examine the accused on those statements ble in evidence against him unless it is should the accused choose to testify (Lizotte v. R. shown by the prosecution to have been a (1980), 61 C.C.C. (2d) 423). Voluntariness must be voluntary statement, in the sense that it has proven, whether a statement is inculpatory or not been obtained from him either by fear exculpatory (or both). Defence counsel may admit

Criminal Procedure 72 of prejudice or hope of advantage exer- duration and still qualify as effective access to cised or held out by a person in authority. counsel. However, if a young or mentally limited suspect receives only brief, incomplete information In R. v. Hodgson, [1998] 2 S.C.R. 449, Cory J. af- from counsel regarding a very serious charge, a firmed that an accused’s statement to a person in court may hold that there was no effective access to authority must not have been coerced or induced, counsel and the suspect’s subsequent confession and must have been the product of an “operating may be excluded (R. v. Osmond, 2007 BCCA 470, mind.” To meet these requirements, accused per- leave to appeal refused [2007] S.C.C.A. No. 545). sons must be able to understand what is said, be able to understand that their utterances could be In Canada, a suspect is not entitled to have a lawyer used against them, and be able to choose to remain present during police questioning, and generally po- silent (R. v. Whittle (1994), 92 C.C.C. (3d) 11 lice are not required to cease questioning simply (S.C.C.)). These requirements aim to ensure that because suspects state repeatedly that they do not only reliable and fairly obtained statements are ad- want to talk to the police. Police are permitted to at- mitted into evidence. tempt to persuade suspects to forgo their right to silence, but depending upon a suspect’s mental and The Supreme Court of Canada comprehensively re- emotional states, there may be an issue as to wheth- viewed the law of voluntariness in R. v. Oickle er police pressure has overcome a suspect’s free (2000), 147 C.C.C. (3d) 321. Threats or induce- will, or a suspect’s ability to choose whether or not ments by police or other persons in authority, and to talk. Thus, the confessions rule and the right to oppressive conditions of interrogation, may render silence have become “functionally equivalent” (R. an accused’s statement unreliable and involuntary. v. Singh, 2007 SCC 48). There also may be an issue as to whether police trickery deprived the accused of the choice to re- In general, a detainee is only entitled to an initial main silent. A statement that is involuntary due to consultation with legal counsel in order to fulfill any of these factors will be excluded from evi- their s. 10(b) rights (R. v. Sinclair, [2010] 2 S.C.R. dence. Generally, whenever the police offer some- 310). However, in some instances, a detainee may thing in return for a statement (quid pro quo), the be entitled to a renewed legal consultation, such as admissibility of the statement will be in question. when there is a discrete change in jeopardy the de- However, an experienced and confident suspect tainee faces (e.g. new charges) or a new non- who bargains with police may be freely deciding routine investigative procedure is deployed by po- whether or not to speak, so that the accused’s lice (e.g. a polygraph or line up). statements remain voluntary (R. v. Spencer, 2007 If police breach a suspect’s Charter rights in ob- SCC 11). taining a statement, and police later attempt to obtain another statement, the initial breach may 4. Charter Sections 7 (Right to Silence) and 10(b) “taint” and render the later statement inadmissible, (Right to Counsel) if the initial breach and the later statement are part of the same transaction or course of conduct, or if Violations of the right to silence and the right to there are temporal or causal connections (R. v. counsel normally result in the exclusion of the ac- Wittwer, 2008 SCC 33; R. v. I.(L.R.) and T.(E.), cused’s statement under s. 24(2) of the Charter. [1993] 4 S.C.R. 504). Procedurally, evidence with respect to such alleged violations is often led in the same voir dire in which the voluntariness of the statement is deter- [§5.05] Statements of Non-Accused mined, and the issues are often related. For exam- Witnesses ple, a severely intoxicated person may lack the operating mind required for voluntariness, and may Like the accused, witnesses may be cross-examined on also be unable to appreciate the consequences of their prior inconsistent statements. Generally, incon- waiving the right to counsel (R. v. Clarkson (1986), sistent statements are admissible only for the purpose of 25 C.C.C. (3d) 207 (S.C.C.)). assessing a witness’s credibility, unless the witness If a detainee (person being detained) tells the police adopts the prior inconsistent statement as the truth, in they want to speak with counsel, any statements which case it becomes the witness’s evidence. Cross- elicited by the police before the detainee has had a examination on a written inconsistent statement of an chance to do so will commonly be excluded from opposing witness is governed by s. 10(1) of the Canada evidence. In practice, police officers usually make Evidence Act. Where the witness does not admit making the phone calls and then pass the phone along to the the prior statement, pursuant to s. 11 of the Canada Evi- detainee so that the detainee may speak either with dence Act, counsel may call evidence to prove that the the Brydges duty counsel, or with counsel of witness in fact did make the statement. Exceptionally, a choice. Contact with counsel may be of a brief party may apply for leave to cross-examine their own

Criminal Procedure 73 witness on a written inconsistent statement, pursuant to or of some other person in whose presence s. 9(2) of the Act (R. v. Milgaard (1971), 2 C.C.C. (2d) the statement was made. 206 (Sask. C.A.), leave to appeal refused (1971), 4 More recently, in R. v. Khelawon, [2006] 2 S.C.R. C.C.C. (2d) 566n (S.C.C.); R. v. Rouse (sub nom. McIn- 787, the Supreme Court of Canada defined hearsay roy v. R.) (1979), 42 C.C.C. (2d) 481 (S.C.C.)). Counsel as follows: may also attempt to have their witness declared hostile: Reference Re R. v. Coffin, [1956] S.C.R. 191. See also The essential defining features of hearsay §5.06(4) (Application of the “Principled Approach” to are therefore the following: (1) the fact Prior Inconsistent Statements) below. Needless to say, if that the statement is adduced to prove the the trial has come to the point where counsel is applying truth of its contents and (2) the absence of to cross-examine their own witness, things are not going a contemporaneous opportunity to cross- as planned. examine the declarant. Witnesses’ prior consistent statements are regarded as The key is the purpose for which the evidence is self-serving. They are generally not admissible in evi- being tendered. If during a trial you hear evidence dence, and do not corroborate the truth of that witness’s that sounds suspiciously like hearsay, stand up and testimony (R. v. Bevan, [1993] 2 S.C.R. 599; R. v. object by asking the purpose for which the state- Beland, [1987] 2 S.C.R. 398; R. v. Kokotailo, 2008 ment is being tendered. If evidence is not tendered BCCA 168). for the truth of what was said, but for another purpose—such as to show the state of mind of either In exceptional cases, a prior consistent statement may be the speaker or the person who heard the state- admissible to rebut an allegation or suggestion of “re- ment—it may not be hearsay and may be admissi- cent fabrication”; in other words, if the apparent posi- ble (R. v. Ly (1997), 119 C.C.C (3d) 479 (S.C.C.); tion of the opposing party is that the witness has made R. v. Nguyen and Bui, 2003 BCCA 556). up a false story since the alleged offence. However, even when tendered to rebut fabrication, a prior consistent statement is relevant only to credibility and is not inde- 2. Traditional Exceptions pendent corroborative evidence (R. v. Evans, [1993] 2 The rule against hearsay has always been subject to S.C.R. 629; R. v. Stirling, 2008 SCC 10). A prior con- various common-law exceptions. Some, such as the sistent statement may also be admissible “as part of the exception for dying declarations and the exception narrative” for the limited purpose of showing the fact for declarations against penal interest, are rarely in- and timing of a complaint, which may assist in assessing voked. The exception for statements of intent made a complainant’s credibility (R. v. Dinardo, 2008 SCC by persons who are since deceased sometimes aris- 24; R. v. Ay (1994), 93 C.C.C. (3d) 456 (B.C.C.A.)). On es in homicide cases, notably R. v. Smith, [1992] 2 the other hand, in sexual assault cases, especially cases S.C.R. 915; R. v. Chahley (1992), 72 C.C.C. (3d) of abuse within families, the fact that a complainant did 193 (B.C.C.A.); and R. v. Mafi (1998), 130 C.C.C. not report the offence should never reduce that com- (3d) 329 (B.C.C.A.). plainant’s credibility (R. v. D.(D.), [2000] 2 S.C.R. 275). Perhaps most commonly invoked by the defence is the exception for res gestae statements, which are [§5.06] Hearsay utterances made at the time of, or soon after, an allegedly criminal act. The res gestae exception 1. General Rule often arises in cases of possession of drugs, weapons, stolen property, or counterfeit money. A A classic statement of the rule against hearsay is set statement by the accused which the defence seeks out in the case of Subramanian v. D.P.P., [1956] 1 to have admitted a res gestae statement may be W.L.R. 965 at 970 (P.C.): elicited in the defence’s cross-examination of the Evidence of a statement made to a witness arresting officer or of whichever other Crown by a person who is not himself called as a witness heard the statement. The jurisprudence on witness may or may not be hearsay. It is this topic was thoroughly reviewed in R. v. hearsay and inadmissible when the object Crossley (1997), 117 C.C.C. (3d) 533 (B.C.C.A.). of the evidence is to establish the truth of Factors to be considered when assessing the what is contained in the statement. It is not admissibility of such utterances include the hearsay and is admissible when it is pro- spontaneity of the statement and the degree of posed to establish by the evidence, not the contemporaneity to the act in issue; whether the truth of the statement, but the fact that it declarant had any motive, or any time or was made. The fact that the statement was opportunity to concoct the statement; and the made, quite apart from its truth, is fre- mental and emotional state of the declarant (R. v. quently relevant in considering the mental Risby, [1978] 2 S.C.R. 139; and R. v. Slugoski state and conduct thereafter of the witness (1985), 17 C.C.C. (3d) 212 (B.C.C.A.)).

Criminal Procedure 74 3. The “Principled Approach” statement, administration of an oath, and warning the declarant about the consequences The law of hearsay in Canada was substantially of lying. However, some form of cross- changed by a long series of cases from R. v. Khan, examination, as for example of a recanting [1990] 2 S.C.R. 531 to R. v. Khelawon, 2006 SCC witness at trial, is usually also required. 57; R. v. Baldree, 2013 SCC 35; and R. v. Bradshaw, [2017] 1 S.C.R. 865. In R. v. Smith, (2) Substantive reliability is established where the [1992] 2 S.C.R. 915, Lamer C.J.C. wrote: “Hearsay hearsay statement is inherently trustworthy. evidence is now admissible on a principled basis, To determine whether the statement is inher- the governing principles being the reliability of that ently trustworthy, a trial judge considers the evidence, and its necessity.” However, subsequent circumstances in which the statement was decisions have clarified that courts should first made and any evidence that corroborates or consider whether a statement is admissible under conflicts with the statement. The standard for any traditional exception to the hearsay rule (R. v. substantive reliability is high: the judge must Starr, 2000 SCC 40; R. v. Mapara, 2005 SCC 23). be satisfied that the statement is so reliable Where admission under a traditional exception is that contemporaneous cross-examination on it successfully opposed, or where no traditional would add little if anything to the process. exception applies, courts should resort to the Procedural and substantive reliability are not mutu- “principled approach” and should assess necessity ally exclusive. They may work in tandem, in that and “threshold reliability.” elements of both can combine to overcome the spe- The requirement of “necessity” is usually met by cific hearsay dangers a statement might present, proof that the speaker cannot testify because the even when each, on its own, would be insufficient speaker is unavailable, either because the speaker is to establish reliability. now deceased (R. v. Blackman, 2008 SCC 37), Admission of hearsay evidence is also subject to incompetent to give testimony (R. v. Hawkins the trial judge’s residual discretion to exclude evi- (1996), 111 C.C.C. (3d) 129 (S.C.C.)), or has no dence where its probative value is slight and where present memory of events due to an intervening in- it would unduly prejudice the accused (Smith). jury or illness. Note that the principled approach to Once hearsay is admitted, the trier of fact must de- hearsay developed largely in response to the di- cide the “ultimate reliability” of the hearsay evi- lemma of the fearful and silent child complainants dence; that is, whether the statements were actually in Khan and R. v. Rockey (1996), 110 C.C.C. (3d) made, were accurately reported, and were truthful. 481, and in these cases the criterion of necessity As with all evidence, the trier of fact also decides was satisfied even though the witnesses were phys- what weight (if any) to accord to such statements. ically available to testify. The parameters of “threshold reliability” were rede- 4. Application of the “Principled Approach” to fined in Khelawon. Threshold reliability is estab- Prior Inconsistent Statements lished when the hearsay is “sufficiently reliable to overcome the dangers arising from the difficulty of In R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257, the testing it.” The hearsay dangers relate to the diffi- Supreme Court of Canada decided that the prior in- culties of assessing the declarant’s perception, consistent statements of a witness who recants memory, narration or sincerity without the tradi- those statements at trial may be admissible under tional safeguards of the declarant giving the evi- the new principled approach to the admissibility of dence in court (under oath or its equivalent) and hearsay evidence. Under the common law rules, subject to contemporaneous cross-examination. such statements were admissible only to impeach a witness’ credibility, and not as evidence of the truth In Bradshaw, the Supreme Court of Canada de- of the statement. However, in R. v. B.(K.G.), the scribed two general means of establishing threshold Supreme Court decided that the fact the witness re- reliability: canted at trial made admission of the prior state- (1) Procedural reliability is established when ments necessary, and the criterion of “reliability” there are adequate substitute safeguards for could be met if other factors were present at the testing the evidence, despite the fact that the time the statements were made. Specifically, the declarant has not given the evidence in court, court found that there were sufficient “circumstan- under oath, and under the scrutiny of contem- tial guarantees of reliability” to permit admission of poraneous cross-examination. These substi- the prior statement where the statement was made tutes must allow the trier of fact to rationally under oath or solemn affirmation following a warn- evaluate the truth and accuracy of the hearsay ing about criminal sanctions, the statement was statement. Among the substitutes for tradi- videotaped in its entirety, and the witness could be tional safeguards are video-recording the

Criminal Procedure 75 cross-examined at trial. Its weight as evidence document at the preliminary inquiry is sufficient would remain to be assessed by the trier of fact. notice (R. v. Norris (1993), 35 B.C.A.C. 133). In general, the remedy for late notice or lack of notice The Supreme Court left open the possibility that is an adjournment. there might be guarantees of threshold reliability other than those defined in R. v. B.(K.G.). Some in- Further guidance on the law of documentary evi- teresting fact patterns have since founded the ad- dence may be found in Nightingale’s The Law of mission of the prior inconsistent statements of re- Fraud and Related Offences (Toronto: Carswell, canting witnesses. In R. v. U.(F.J.), the statement of 2019, supplemented text) and in Electronic Evi- a young girl who recanted the allegation that her fa- dence in Canada, (Toronto: Carswell, 2019, sup- ther had repeatedly sexually assaulted her was ad- plemented text.) mitted on the basis that it was “strikingly similar” Other statutory exceptions to the rule against hear- to the father’s own voluntary statement about the say appear in ss. 715.1-715.2 of the Criminal Code, same offences. In R. v. Naicker, 2007 BCCA 608, which permit video-recorded statements of disabled leave to appeal denied [2008] S.C.C.A. No. 45, a witnesses and witnesses under the age of 18 to be convicted former co-accused refused to testify (and entered into evidence at trial, providing the witness therefore could not be cross-examined), but his adopts the statement in their testimony (R. v. C.C.F. statement incriminating the accused was admitted (1997), 120 C.C.C. (3d) 225 (S.C.C.)). However, because it had various indicia of reliability (and it recorded statements admitted under this provision had been admitted on his own conviction). Similar- are not independent corroboration of the witness’s ly, in R. v. Adam, 2006 BCSC 1355, where contrary testimony (R. v. L.(D.O.), [1993] 4 S.C.R. 419; R. v. to their plea agreements two of the accused’s’ co- S.(K.P.), 2007 BCCA 397). conspirators refused to testify, their prior statements were admitted. A rare example of hearsay tendered by the defence, which was found inadmis- [§5.07] Character Evidence sible due to lack of threshold reliability, appears in R. v. Post, 2007 BCCA 123. 1. Evidence of the Good or Bad Character of the Accused Generally, the admissibility of a “K.G.B.” statement is determined in a voir dire, which begins under the The Crown must not tender evidence that indicates terms of s. 9(2) of the Canada Evidence Act, and or suggests that the accused is of bad character or continues with evidence on the necessity and relia- has a propensity to commit offences, unless the ev- bility of the statement. However, there are alterna- idence is relevant to some other issue in the case, tive procedures under s. 9(1) of the Canada Evi- and unless the probative value of the evidence out- dence Act (R. v. Uppal, 2003 BCSC 1922 and 2003 weighs its prejudicial effect upon the defence (R. v. BCSC 1923), or in Crown re-examination of a B.(F.F.), [1993] 1 S.C.R. 697; R. v. G.(S.G.), witness who has recanted on cross-examination [1997] 2 S.C.R. 716). Sometimes the accused’s (R. v. Glowatski, 2001 BCCA 678). other bad behaviour, before or after the offence, may be relevant to their motive or intent to commit the offence. For instance, “relationship evidence” 5. Documents as Hearsay—Statutory Exceptions tendered to prove motive in cases of spousal vio- Generally, when the author or maker of a document lence. However, counsel should take great care to does not testify, that document is hearsay, but there determine legal relevance and admissibility before are many statutory exceptions to this rule. The such evidence is heard by a jury. Where such evi- Canada Evidence Act provides for admission of dence is admitted for a limited purpose only, the business records, banking records, and government trial judge must carefully instruct the jury on the records (ss. 26-30); the provincial Motor Vehicle limited admissibility of the evidence, and warn the Act provides for the admission of motor vehicle jury against convicting the accused because the ac- records (s. 82); the Criminal Code provides for the cused is a “bad” person or is “likely” to have com- admission of breath analysis certificates (now mitted the offence. s. 320.31; formerly s. 258); and the Controlled In general, the accused’s character is not a fact in Drugs and Substances Act provides for the issue in a criminal case. While it is open to the ac- admission of drug analysts’ certificates (s. 51). cused to make it so by adducing evidence of their These exceptions generally are subject to notice general good reputation for a character trait in is- provisions in each statute and counsel should al- sue, such as truthfulness or nonviolence, counsel ways read the notice provisions carefully. Notice is for the accused must recognize that in most cases valid if served on the accused, counsel, an articled such evidence will put the accused’s character in student, or perhaps even office staff. If the statute issue, opening the door for the Crown not only to does not explicitly require written notice, filing the cross-examine the accused on their character in

Criminal Procedure 76 general, past convictions and their details, and any Once the accused has put their character in issue, other specific instances demonstrating the ac- the Crown may cross-examine the accused and de- cused’s bad behaviour, but also to call evidence in fence witnesses, as well as lead rebuttal evidence reply to demonstrate the accused’s bad character. on the accused’s bad reputation, disposition or character traits relevant to the offence, on details of Where the defence does choose to adduce evidence any previous convictions, and on any prior bad acts of the accused’s good character, it may do so by that are similar to the offence charged (R. v. Far- eliciting testimony as to the accused’s general repu- rant, [1983] 1 S.C.R. 124; R. v. McNamara (No. 1) tation for a relevant character trait, but witnesses (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), aff’d sub are not permitted to express their personal opinion nom. R. v. Canadian Dredge and Dock Co., [1985] of the accused or to describe the accused’s prior 1 S.C.R. 662; R. v. Brass (2007), 226 C.C.C. (3d) specific good acts. The accused, however, may tes- 216 (Sask. C.A.); Alcius v. R. (2007), 226 C.C.C. tify as to specific acts of good conduct demonstrat- (3d) 544 (Q.C.A.)). ing the relevant trait, or may tender expert evidence as to the accused’s disposition which renders their Remember, however, that evidence of the accused’s participation in the offence less likely (R. v. Mohan, bad character (reputation or disposition, or propen- [1994] 2 S.C.R. 9). sity to have committed the offence), can only be used to rebut the evidence of the accused’s good Evidence of the accused’s good character is rele- character, or to rebut the disposition evidence led to vant both to the accused’s credibility, and to render show that a third party is more likely to have com- unlikely the accused’s participation in the offence. mitted the offence. The trier of fact must be careful, (R. v. Kootenay (1994), 27 C.R. (4th) 376 (Alta. or be warned, not to use such evidence to reason C.A.); R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 that because of the accused’s bad character or dis- (B.C.C.A.)). With respect to specific offences such position, they are more likely to be guilty (R. v. as sexual assault upon children, however, the trier Dvorak (2001), 46 C.R. (5th) 160 (B.C.C.A.); R. v. of fact is entitled to find that evidence of good Chambers, [1990] 2 S.C.R. 1293). character has limited probative value (R. v. Profit (1993), 85 C.C.C. (3d) 232 (Ont. C.A.)). 3. Character of Non-Accused Witnesses 2. “Putting Character in Issue” Crown and defence witnesses other than the accused may be cross-examined on their bad charac- It is often difficult to determine whether the acter, including unrelated disreputable conduct, facts cused has put their character in issue by the conduct underlying previous convictions, disposition to lie, of their defence. The accused does not put their association with others, and habits of life (R. v. character in issue simply by denying the Cullen (1989), 52 C.C.C. (3d) 459 (Ont. C.A.)). prosecution’s allegations, or by advancing a posi- While trial judges have a discretion to decide tive defence or justification, such as self-defence. whether tendered evidence should be admitted, af- However, where the accused asserts, either express- ter weighing the probative value of the evidence ly or impliedly, that they are unlikely to have com- against its prejudicial effect, the exercise of that mitted the offence due to good character, then the discretion will be more closely scrutinized where accused has put their character in issue. Where de- the effect of the ruling is to preclude the defence fence counsel is approaching the boundary of this from leading evidence. However, trial judges will issue, senior Crown will often rise to advise the only rarely allow any witness to testify as to wheth- court, and their friend, that they believe the line is er they would believe another witness’s sworn tes- fast approaching. timony (R. v. Clarke (1998), 129 C.C.C. (3d) 1 There are several ways in which counsel can put (Ont. C.A.) and R. v. R.I.L., 2005 BCCA 257). the accused’s character in issue, and it would be A jury must be given a “clear and sharp” warning unwise to attempt to list them all. Some of the more of the danger of relying upon the unsupported tes- obvious examples, however, include adducing evi- timony of any witness who cannot be trusted to tell dence that the accused is a nonviolent person when the truth under oath due to their amoral character, they are charged with assault; eliciting evidence criminal activities, past dishonesty, or motives to with respect to the accused’s financial probity when lie, including involvement in the offence or benefits they are charged with fraud; adducing evidence to from the police or the prosecution. Such a show that a third party, by reason of disposition, is “Vetrovec” warning is usually required regarding more likely to have committed the offence; and of the testimony of in-custody informers and accom- course where the accused, when asked if they plices. The warning alerts the jury: committed the offence, testifies that “I would never do such a thing.”  drawing the jury’s attention to each witness whose testimony requires special scrutiny;

Criminal Procedure 77  explaining why the testimony requires spe- Where the Crown has indicated that they intend to cial scrutiny, with reference to the charac- do so, a voir dire is usually held at the end of the teristics of the witness which put their ve- Crown’s case to decide which, if any, of the ac- racity in doubt; cused’s prior convictions the Crown may put to them in cross-examination. Defence counsel may  cautioning that it would be dangerous to outline what the accused would say in their testi- convict in reliance on the unconfirmed or mony, to allow the judge to assess the potential ef- unsupported testimony of the witness; and fect of cross-examination regarding particular con-  directing the jury’s attention to independent victions. The trial judge has the duty to exclude evidence that is capable of confirming or those convictions whose prejudicial effect out- supporting material parts of the witness’s weighs their probative value (R. v. Corbett, [1988] testimony. 1 S.C.R. 670; R. v. Underwood [1988] 1 S.C.R. 77). (See R. v. Khela (2009), 238 C.C.C. (3d) 489; R. v. Cross-examination on convictions involving dis- Smith (2009), 238 C.C.C. (3d) 481; R. v. Bevan honesty is generally permitted, but in jury trials, (1993) 82 C.C.C. (3d) 310.) cross-examination on prior convictions that are similar to the charge at trial may be prohibited as The general rules regarding character evidence ap- being too prejudicial. A trial judge’s ruling will al- ply to witnesses who are victims of alleged sexual so be affected by how vigorously the accused has offences, except that ss. 276–277 of the Criminal attacked the character of Crown witnesses. Code generally prohibit evidence of a victim’s prior sexual activity or sexual reputation. An evidentiary Absent error in principle, appellate courts are reluc- hearing may be held to determine whether evidence tant to overturn a trial judge’s ruling on the admis- of specific instances of sexual activity is relevant to sibility of the accused’s record. (R. v. Fengsted and the offence charged, and to determine whether the Stewart, 117 B.C.A.C. 95; R. v. Gibson, 2001 probative value of such evidence outweighs its BCCA 297). However, the BC Court of Appeal did prejudicial effect. order a new trial in a case where the trial judge failed to consider editing the accused’s lengthy record in order to ensure the accused’s fair trial (R. v. 4. Criminal Records Madrusan, 2005 BCCA 609). Of course, the Crown A witness’s criminal record is a particular form of has the discretion to refrain from cross-examining character evidence. An ordinary witness may be on all or part of the accused’s criminal record, and examined and cross-examined about prior convic- counsel may agree on “editing” the record without tions and the facts of prior offences which resulted a voir dire or a “Corbett” application. in convictions. In contrast, the accused may be examined and cross-examined about prior convic- 5. Impermissible Questions tions but not about the facts of prior offences, unless the accused has put character in issue. Many It is improper for either counsel to ask a witness if defence counsel pre-empt cross-examination of the another witness could be lying (R. v. Brown and accused on their criminal record by leading the rec- Murphy (1982), 1 C.C.C. (3d) 107 (Alta. C.A.)); ord in direct examination. Crown counsel may do and it may be fatal for the Crown to ask the accused the same with Crown witnesses. Section 12 of the why witnesses would lie about the accused (R. v. Canada Evidence Act provides the statutory basis Ellard, 2003 BCCA 68). authorizing adducing evidence of prior convictions, and proving those prior convictions where a wit- [§5.08] Opinion Evidence ness denies them. Section 666 of the Criminal Code authorizes the Crown to cross-examine an accused 1. General on the specific circumstances underlying prior convictions where the accused puts character in issue. An “opinion” is an inference from observed facts. The common law rules of evidence generally limit Evidence of an accused’s prior convictions is only any witness to describing what that witness directly admissible and only has probative value to impugn observed, and prohibit the witness from expressing the accused’s credibility, and (if applicable) to re- any opinions the witness may have drawn from but any evidence of the accused’s good character. those observations (R. v. Collins (2001), 160 Prior convictions must not be used to infer that the C.C.C. (3d) 85 (Ont. C.A.)). Notwithstanding this accused has a propensity to commit offences (R. v. exclusionary rule, opinion evidence is often ad- W.(L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.)). duced at trial. The accused has the constitutional right to know First, numerous apparent statements of fact—such whether the Crown intends to cross-examine on as a person’s age, height, weight and sobriety, the their record before they decide whether to testify.

Criminal Procedure 78 speed of a vehicle, and the identification of people The BC Court of Appeal has held that “the admis- or things—are arguably no more than expressions sion of expert evidence regarding human behaviour of a witness’s opinion. So long as the opinions are or psychological factors relevant to credibility is within the realm of ordinary experience and the justified where the evidence goes beyond the ordi- witness formed the opinions based on the constella- nary experience of a lay person” (R. v. Meyn, 2003 tion of facts observed at the time, such evidence is BCCA 401), but has also warned that courts are of- commonly admitted (Graat v. R., [1982] 2 ten “overly eager” to abandon their fact-finding re- S.C.R. 819). sponsibilities to such experts, and “should be wary” of accepting evidence of experts in the behavioural Second, if a witness has special training, skill or sciences (R. v. Orr, 2015 BCCA 88). experience in an area that is outside the knowledge of the trier of fact, that witness may be allowed to Expert evidence will be treated as “novel” scientific give an opinion based on the witness’s specialized evidence where there is no established practice of knowledge, that is, to give expert evidence. In de- admitting that particular kind of evidence. Where termining whether the witness qualifies as an ex- such evidence is tendered, it is subject to special pert, the question is whether the witness has “by scrutiny trial judges must determine whether such dint of training and practice, acquired a good evidence meets a threshold of scientific reliability, knowledge of the science or art concerning which and will pay particular attention to whether such his opinion is sought, and the practical ability to evidence is truly “necessary” (R. v. J.(J.-L.), 2000 use his judgment in that science” (R. v. Kinnie SCC 51). While once novel, DNA evidence has (1989), 52 C.C.C. (2d) 112 (B.C.C.A.)). long since become generally accepted (R. v. Terceira (1998), 123 C.C.C. (3d) 1 (Ont. C.A.), aff’d [1999] 3 S.C.R. 866). 2. Admissibility of Expert Evidence In R. v. Mohan (1994), 89 C.C.C. (3d) 402, the Su- 3. Factual Basis for Expert Opinion preme Court of Canada held that the following criteria govern the admissibility of expert evidence: A party who tenders expert evidence must establish (a) relevance; in evidence the facts upon which the expert’s opinion is based (R. v. Abbey (1982), 68 C.C.C. (2d) (b) the necessity of expert evidence to assist the 394 (S.C.C.)). Expert opinion may be based, in cer- trier of fact; tain circumstances, on hearsay, but this will impact (c) the absence of any rule excluding the particu- upon any weight that may be attached to it (R. v. lar evidence; and Lavalee (1990), 55 C.C.C. (3d) 97 (S.C.C.)). How- ever, the expert’s opinions must be specific to the (d) a properly qualified expert. case before the court (R. v. Li (No. 2) (1980), 59 The burden is on the party calling the evidence to C.C.C. (2d) 79 (B.C.S.C.)). establish that each of these criteria is satisfied, on the balance of probabilities. 4. Procedure The modern legal framework for the admissibility Section 657.3 of the Criminal Code requires both of expert opinion based on Mohan is divided into the Crown and defence to give notice, 30 days be- two stages. First, the evidence must meet the fore the trial, of an intention to call expert evidence. four Mohan factors: (1) relevance, (2) necessity, (3) In addition, the Crown must provide a copy of its absence of an exclusionary rule, and (4) special ex- expert’s report, or at least a summary of its expert’s pertise. Second, the trial judge must weigh potential opinion, within a reasonable time before trial. The risks against the benefits of admitting the evidence defence must provide its report or summary of ex- (White Burgess Langille Inman v. Abbott and Hali- pert evidence no later than the close of the Crown’s burton Co., [2015] 2 S.C.R. 182). At the second case. stage, the trial judge retains the discretion to exclude evidence that meets the threshold require- Before an expert may give opinion evidence, the ments for admissibility if the risks in admitting the expert must be “qualified” (R. v. Marquard, [1993] evidence outweigh its benefits. Appellate courts 4 S.C.R. 223). Counsel tendering the expert evi- have particularly scrutinized the “necessity” of ad- dence should advise the judge that counsel is seek- mitting expert evidence in the realm of the behav- ing a ruling that the witness is qualified to give ioural sciences to address questions of motivation opinion evidence in a specified field, for example, or credibility. In R. v. D.D., 2000 SCC 43, the court the identification of firearms and toolmarks. A voir held that expert evidence regarding children’s re- dire is then held for direct examination and cross- luctance to report sexual abuse is not necessary be- examination of the expert regarding the expert’s cause public understanding is sufficient now for the education, training, and experience in the specified topic to be addressed by a suitable jury instruction. field. The limitations of an opposing expert’s quali-

Criminal Procedure 79 fications should be carefully probed. The judge will then rule on whether the witness is qualified to give evidence in that field. In a jury trial, such a “qualification” voir dire, unlike other voir dires, is usually conducted in the presence of the jury. Counsel should be aware that by virtue of ss. 320.12 and 320.31(5) of the Criminal Code, a drug recognition expert is legislatively qualified as an expert for the purposes of providing an expert opinion on im- pairment (see R. v. Bingley, 2017 SCC 12). Often, the expert’s qualifications are known and admitted by the opposing party, but it is still wise for the party tendering the witness to briefly elicit their qualifications, in order to enhance the weight of their opinions. Once the expert is “qualified,” opposing counsel should be quick to object if the witness ranges beyond the specified field of expertise.

[§5.09] Rebuttal Evidence

The rule against the Crown splitting its case is well established. The Crown must call all the evidence it intends to rely on before the accused is required to decide whether to present a defence (R. v. Krause, [1986] 2 S.C.R. 466). An accused has the constitutional right to know the case they must meet before answering the Crown’s case (R. v. Latimer, 2001 SCC 1). The Crown cannot lead in rebuttal evidence which it should or could have led as part of the Crown’s case (R. v. Moir, 2013 BCCA 36). However, if the Crown could have led certain evidence, but the evidence did not become relevant or did not become a “live issue” until during the defence case, then the Crown may lead the evidence in rebuttal (John v. R., [1985] 2 S.C.R. 476; R. v. Aday, 2008 BCSC 397).

Criminal Procedure

80 Chapter 6 [§6.02] Jurisdiction

1. Challenges to the Constitutionality of Charter Remedies1 Legislation (s. 52) An inferior court (e.g. the Provincial Court of BC) [§6.01] Introduction or administrative tribunal may decide that a law is inconsistent with the Charter, but it is only able to The Canadian Charter of Rights and Freedoms came use that determination in resolving the matter be- into force in 1982, and forms part of Canada’s Constitu- fore it (i.e. it cannot make a formal declaration of tion. invalidity). In addition, these decisions are not bind- ing on others. Only superior courts (e.g. the Su- Challenging a statute or a government action for uncon- preme Court of BC) have jurisdiction to invalidate stitutionality requires careful and early preparation and legislation (R. v. Lloyd, 2016 SCC 13; Nova Scotia planning. Counsel should pay close attention to the no- (Workers’ Compensation Board) v. Martin, 2003 tice requirements, legal analysis, evidentiary foundation, SCC 54). and availability of the remedy sought. 2. Challenges to State Conduct (s. 24) 1. Legal Framework Only a “court of competent jurisdiction” may hear Laws of all levels of government throughout Cana- an application brought pursuant to s. 24 of the da, including statutes, regulations, and the common Charter. Courts of competent jurisdiction possess: law, must be consistent with the Constitution (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 1. jurisdiction over the subject matter; 573). 2. jurisdiction over the person; and Section 52(1) of the Constitution Act, 1982 (the 3. jurisdiction to grant the remedy (R. v. Mills, “Charter”) proclaims the Constitution as “the su- [1986] 1 S.C.R. 863). preme law of Canada” and declares any law inconsistent with the Constitution, “to the extent of the (a) Criminal Trial Court inconsistency, of no force or effect.” This subsec- The criminal trial court is a court of competent tion provides the basis for constitutional challenges jurisdiction for most Charter remedies, unless it to laws on the basis that they either violate the is necessary to obtain a remedy prior to trial to Charter in purpose or effect, or are inconsistent prevent a continuing violation, or a lower court with other parts of the Constitution (i.e. under a di- is itself in violation of the Charter (Mills). vision of powers analysis). (b) Superior Courts Section 24(1) of the Charter allows those whose constitutional rights have been infringed or denied Superior courts have constant and concurrent to apply to “a court of competent jurisdiction” for jurisdiction to hear s. 24(1) applications, to en- such remedy as is “appropriate and just in the cir- sure there is always a court of competent juris- cumstances.” diction (Doucet-Boudreau v. Nova Scotia (Min- ister of Education), 2003 SCC 62). The trial Section 24(2) allows for the exclusion of evidence court, however, is the preferred forum for hear- “obtained in a manner that infringed or denied any ing such applications as it is in the best position rights or freedoms guaranteed by this Charter” to consider all the circumstances (R. v. Menard, where the admission of that evidence “would bring 2008 BCCA 521). the administration of justice into disrepute.” Like s. 24(1), it provides a remedy for an unconstitution- (c) Provincial Court Hearings (Other Than Trials) al government act, but the only remedy available is A provincial court hearing a preliminary in- the exclusion of evidence. quiry is not a court of competent jurisdiction because the court exercises only a “limited screening function” to “determine whether there is sufficient evidence to proceed to trial” (R. v. Hynes, 2001 SCC 82). Likewise, a provincial court judge presiding over a judicial interim re- 1 Gordon S. Comer and Drew J. Beesley revised this chapter in lease (bail) hearing is not a court of competent December 2020. Previously written and revised by M. Joyce DeWitt-Van Oosten (2004–2006, 2008, 2010 and 2016); Oliver jurisdiction (Menard). Butterfield (2001–2003); Ravi R. Hira (1998 and 1999); David M. Towill (1998); Andrew G. Strang (1997); and William B. Smart (1995 and 1996).

Criminal Procedure 81 (d) Administrative Tribunals 2. they have a real stake or genuine interest in A tribunal that can decide questions of law will the validity of the legislation; and be a court of competent jurisdiction for granting 3. the litigation is a reasonable and effective Charter remedies, unless that power has been way to bring the issue before the courts. removed in the enabling legislation. Whether a (Canada (AG) v. Downtown Eastside Sex tribunal can grant a particular remedy is a ques- Workers United Against Violence Society, tion of whether the remedy accords with the tri- 2012 SCC 45). bunal’s mandate, function, and structure (R. v. Conway, 2010 SCC 22). Any accused, including a corporation, may challenge the constitutionality of the charging statute [§6.03] Notice and Timing because “no one can be convicted of an offence under an unconstitutional law” (R. v. Big M Drug Anyone challenging the constitutional validity or ap- Mart, [1985] 1 S.C.R. 295). plicability of legislation, or seeking a s. 24(1) Charter remedy, must give at least 14 days’ notice to the Attor- 2. Private Interest Standing neys General of British Columbia and Canada (Constitu- An applicant whose rights have been directly af- tional Question Act (the “CQA”) s. 8). Sufficient notice fected by the unconstitutional law or state conduct is required by Crown counsel and the court in order to may be granted private interest standing. An appli- ensure the matter is fairly and efficiently determined. cant may not, however, rely on a breach of the Formal notice of an application to exclude evidence un- rights of a co-accused or accomplice (R. v. Ed- der s. 24(2) is not required under the CQA. The prosecu- wards, [1996] 1 S.C.R. 128; R. v. Hyatt, 2003 tion, however, must still be given reasonable notice of BCCA 27). the intention to seek exclusion, with particulars. This There must be a causal connection between the im- notice should occur before the evidence is tendered, to pugned law or state action and the impact on the ac- ensure a fair and efficient process (R. v. Kutynec (1992), cused’s Charter right. An uncertain, speculative, or 70 C.C.C. (3d) 289 (Ont. C.A.); R. v. Bhander, 2010 hypothetical connection will not suffice (Blencoe v. BCSC 1980). British Columbia (Human Rights Commission), Where sufficient notice is not provided, the usual reme- 2000 SCC 44). dy is for the court to grant the Crown an adjournment. In Standing may also be granted for anticipated exceptional circumstances, the court may refuse to hear breaches in order to prevent harm, if the applicant the application (R. v. Loveman (1992), 71 C.C.C. (3d) can establish the threat of a probable future viola- 123 (Ont. C.A.)). tion (United States of America v. Kwok, 2001 SCC The evidentiary basis for Charter breaches must be laid 18). either in a pre-trial hearing or at trial. It is only in excep- Corporations cannot claim infringement of Charter tional cases that a Charter application can be brought for rights associated with personal freedoms, such as the first time on appeal. Appellate courts are reluctant to the rights of “life, liberty and security of the per- make Charter rulings without an evidentiary foundation son” or the right of freedom of conscience and reli- (R. v. Lilgert, 2014 BCCA 493). gion. As such, they may be precluded from pursuing an individualized s. 24 remedy. Instead, they [§6.04] Standing may defend themselves by arguing that the law is constitutionally invalid under s. 52 (R. v. Wholesale Applicants must be granted standing before they can Travel Group, [1991] 3 S.C.R. 154). seek Charter remedies. There are two types of standing: “private interest” or “public interest.” Either category (a) Private Interest Standing to Argue a Breach of entitles a litigant to challenge the constitutionality of s. 8 Privacy Interests legislation under s. 52, but only those granted private Section 8 protects against unreasonable search interest standing may seek a s. 24 remedy (R. v. Fergu- and seizure (discussed at §6.11). To establish son, 2008 SCC 6). standing the applicant must have a “reasonable expectation of privacy” in the place that was 1. Public Interest Standing searched or the item that was seized. Whether Those not directly affected by the law may be an accused has a reasonable expectation of pri- granted public interest standing if they establish: vacy is determined on the totality of the circumstances, including: 1. there is a serious justiciable issue (with respect to the validity of the legislation or 1. the accused’s presence at the time of administrative action); the search;

Criminal Procedure 82 2. whether the accused had possession or [§6.05] Unconstitutional Legislation (s. 52) control of the property or place searched; When a court finds a law inconsistent with the Charter, it must determine the extent of the inconsistency and 3. ownership of the property or place then determine the most appropriate judicial response searched; that will remedy it (R. v. Schachter, [1992] 2 S.C.R. 4. historical use of the place searched; 679). Available remedies for unconstitutional laws include: 5. the ability to regulate access; and 6. the existence of a subjective expecta-  striking down the provision in its entirety; tion of privacy (Edwards; see also R. v.  “severing”—declaring the inconsistent portion Tessling, 2004 SCC 67; R. v. Patrick, of the law invalid; 2009 SCC 17).  “reading in”—inserting what the statute In Edwards, the appellant had no privacy inter- wrongly excludes or omits; and est to challenge the admissibility of drugs that were found in his girlfriend’s apartment be-  “reading down”—shrinking the legislative cause he was a visitor who only stayed over oc- reach of the statute so as to remove its uncon- casionally. Similarly, two accused who claimed stitutional impact. to be babysitters were denied standing to challenge a search warrant because they did not Courts may grant a temporary suspension of a declara- have a reasonable expectation of privacy in the tion of invalidity in order to give the legislature an op- residence (R. v. Khuc, 2000 BCCA 20). portunity to address the issue with new legislation. Such suspensions should rarely be granted, “only when an It is conceptually difficult to describe the place identifiable public interest, grounded in the Constitution, of the search or location of the seized item is endangered by an immediate declaration to such an where information is seized from electronic de- extent that it outweighs the harmful impacts of delaying vices and may exist in multiple locations. The the declaration’s effect” (Ontario (Attorney General) v. courts have therefore focused on the nature of G, 2020 SCC 38). In such cases, under s. 24(1), courts the seized information: the claimant must have may grant individual exemptions from compliance with a direct interest in the seized material and an the temporarily valid law. objectively reasonable expectation it would be private (R. v. Marakah, 2017 SCC 59). 1. Section 1 Analysis For example, Marakah sent text messages about If the applicant establishes that the legislation is in- firearms to an accomplice. Police seized the ac- consistent with a Charter right or freedom, the bur- complice’s cell phone and extracted the mes- den falls on the Crown to prove under s. 1 of the sages, without a warrant. The court ruled that Charter that the infringement is “a reasonable limit Marakah had a reasonable expectation of priva- prescribed by law as can be demonstrably justified cy in the messages and should have been grant- in a free and democratic society.” ed standing to seek their exclusion because text messages can reveal much personal infor- The framework for the s. 1 analysis is set out in R. v mation, a sender’s objectively reasonable ex- Oakes, [1986] 1 S.C.R. 103. To save the provision, pectation of privacy in them may endure even the Crown must first demonstrate that the objective after they are sent, and control over the infor- of the legislation is “of sufficient importance to mation is not lost simply because another per- warrant overriding a constitutionally protected right son possesses it or can access it. or freedom.” Second, it must show that the means chosen to achieve the objective are reasonable and Not all electronic communications, however, demonstrably justified. This requires the means to will attract a reasonable expectation of privacy be rationally connected to the objective and to im- (Marakah). For example, it is not objectively pair the right or freedom as little as possible. Final- reasonable to expect that a threatening text ly, the court will look to the proportionality be- message would not be turned over to police (R. tween the effects of the impugned provision and the v. Pelucco, 2015 BCCA 370). See also R. v. importance of the objective. In R. v Sharpe, 2001 Mills, 2019 SCC 22, where the relationship be- SCC 2, the test was described this way: tween the communicating parties (or rather, the lack thereof) was determinative. Mills commu- . . . The goal must be pressing and sub- nicated online with a police officer who was stantial, and the law enacted to achieve posing as a child. The court held that privacy that goal must be proportionate in the cannot be reasonably expected by an adult who sense of furthering the goal, being care- sends online messages to an unknown child. fully tailored to avoid excessive impair-

Criminal Procedure 83 ment of the right, and productive of ben- Examples of s. 24(1) remedies include: efits that outweigh the detriment. . .  an adjournment; Three general principles guide the s. 1 analysis:  a reduction in sentence; 1. The test “must be applied flexibly,” considering “the factual and social context of each  a disclosure order; case” (RJR-MacDonald Inc. v. Canada  the exclusion of evidence; (AG), [1995] 3 S.C.R. 199).  permission to recall witnesses; 2. Common sense and inferential reasoning may supplement the evidence tendered in  a declaration of a mistrial; support of justification (Sharpe). In some cases, certain aspects of the s. 1 analysis  an award of costs against the Crown; and may be self-evident, such as the importance  a judicial stay of proceedings. of a legislative objective. 3. The Charter does not demand perfection. 3. Procedure and Burden The legislature need not adopt the least re- An accused is not entitled to a Charter hearing as of strictive means of achieving its objective. It right. Counsel must first provide the court with a is sufficient if “the means adopted fall with- summary of the basis for the application and the an- in a range of reasonable solutions to the ticipated evidence (R. v. Feldman (1994), 91 C.C.C. problem confronted” (Sharpe). (3d) 256). Where this summary does not provide a For a discussion of how these principles are ap- basis for a remedy, the court may decline to hear plied, see Canada (Attorney General) v. Bedford, the application (R. v. Vukelich (1996), 108 C.C.C. 05 SCC 66). 2013 SCC 72 and Carter v. Canada (Attorney Gen- (3d) 193 (B.C.C.A.); R. v. Lising, 20 eral), 2015 SCC 5. Normally the court will hear the evidence relating to the alleged breach on a voir dire, and then rule on [§6.06] Unconstitutional State Conduct the issue. Often the parties will agree that the evi- (s. 24) dence taken in the voir dire can be admitted (as appropriate) into the trial proper. 1. Establishing the Charter Breach Counsel should be cautious of presenting evidence To successfully establish that state conduct has on a voir dire in summary form, or by an agreed breached a Charter right, an applicant must: statement of facts, as doing so may leave important considerations unexplored: 1. bring the claim in the proper venue, at the correct stage, with proper notice; . . . Without the benefit of direct examination and cross-examination of witness- 2. establish the evidentiary foundation; and es, there is a very real risk of prejudice to the accused. The practice of finding guilt 3. persuade the court that, on a balance of or innocence on an agreed statement of probabilities, the applicant’s Charter rights facts should be discouraged except where have been violated. the facts are such that viva voce evidence Courts will not permit “collateral attacks” on court would not have the potential of affecting or administrative orders (such as a Charter chal- the outcome (R. v. Leng, 1992 CanLII 177 (B.C.C.A.)). lenge) except in proceedings “whose specific object is the reversal, variation or nullification of the or- The applicant bears the legal burden of persuading der” (R. v. Bird, 2019 SCC 7). the court, on a balance of probabilities, that the applicant’s Charter right was infringed. The applicant Once the applicant proves the Charter right, the also bears the evidentiary burden of presenting evi- court will consider the appropriate remedy. dence in support of the alleged breach, unless the breach arises from the Crown’s case alone. For cer- 2. Seeking an Effective Remedy tain issues, however, the burden shifts to the Subsection 24(1) gives broad discretion to provide Crown, such as the question of whether the accused remedies for unconstitutional state action. Courts would not have acted differently had the right to take a purposive approach to this remedial provi- counsel not been infringed (R. v. Bartle, [1994] 3 sion in order to fashion appropriate, effective and S.C.R. 173). responsive remedies that promote the purpose of the Once the Charter breach is established, the question right being protected (R. v. 97649 Ontario Inc., of whether the matter can be “saved” under s. 1 will 2001 SCC 81; Doucet-Boudreau v. Nova Scotia be determined. Evidence relating to this line of in- (Minister of Education), 2003 SCC 62).

Criminal Procedure 84 quiry is sometimes tendered after the court has tions. It contains broad language protecting life, liberty, ruled on whether there has been a Charter breach. and security of the person, and the right not to be deprived of those rights except in accordance with the [§6.07] Exclusion of Evidence principles of fundamental justice. These rights protect physical and psychological integrity, as well as the abil- Applications to exclude evidence based on Charter ity to make important and fundamental life choices breaches are normally brought under s. 24(2). The appli- (Carter; Blencoe). cant must show that its admission could bring the administration of justice into disrepute. 1. Vague or Overbroad Legislation Alternatively, evidence may be excluded pursuant to Legislation which is vague or overbroad can be s. 24(1), where the evidence was obtained in conformity challenged under s. 7 as offending principles of with the Charter but its admission would result in an fundamental justice. Laws must neither be so lack- unfair trial or otherwise undermine the integrity of the ing in precision that they fail to give guidance for justice system (R. v. White, [1999] 2 S.C.R. 417). Exclu- legal debate (vagueness), nor too sweeping in rela- sion of evidence under s. 24(1) is only available “where tion to the objective (overbreadth). Nor can laws be a less intrusive remedy cannot be fashioned to safeguard arbitrary (having no connection between the pur- the fairness of the trial process and the integrity of the pose and effect of the law) or grossly disproportion- justice system” (R. v. Bjelland, 2009 SCC 38). ate (where the seriousness of the deprivation is totally out of sync with the objective of the law) (Bed- 1. Test for Exclusion Under s. 24(2) ford; Carter). Vague or overbroad laws can some- Once a breach has been established, the analysis times be read down by severing the offending por- moves to the question of exclusion, and the appli- tions (R. v. Hall, 2002 SCC 64; Schachter v. Cana- cant must establish that the admission of the im- da, [1992] 2 S.C.R. 679). pugned evidence would bring the administration of justice into disrepute. 2. Abuse of Process A court hearing an application for exclusion must Abuse of process applications are brought under assess and balance the effect of admitting the evi- s. 7 because life, liberty, or security of the person dence on society’s confidence in the justice system. must not be deprived through state conduct that is There are three lines of inquiry: oppressive or vexatious (R. v. O’Connor, [1995] 4 S.C.R. 411). 1. the seriousness of the state conduct; An abuse of process may arise from state conduct 2. the impact of the breach on the accused’s that either: interests; and  compromises trial fairness (i.e. causing irrepa- 3. society’s interest in an adjudication on the rable damage to the ability to make full an- merits (R. v. Grant, 2009 SCC 32). swer and defence) (the “main” category); or On the first question, the more severe and deliberate the conduct, the more a court will want to dissociate  risks undermining the integrity of the judicial itself from it by excluding the evidence. On the sec- process (the “residual” category) (R. v. Babos, ond question, the court evaluates the extent to 2014 SCC 16). which the breach undermined the Charter-protected Regardless of the category, a judicial stay for abuse interests. More serious incursions carry the greatest of process is only available where: risk that admission will bring the administration of justice into disrepute. On the third question, the 1. the prejudice caused by the abuse will be man- court considers whether the truth-seeking function ifested, perpetuated or aggravated through the of the criminal trial process is better served by ad- conduct of the trial, or by its outcome; mitting or excluding the evidence, having regard to 2. there is no other remedy available that is rea- the reliability of the evidence and its importance to sonably capable of removing that prejudice; the Crown’s case. and There is no automatic exclusionary rule. Each case must be assessed independently in light of all the 3. the balance of interests favours granting a stay circumstances under the s. 24(2) framework. over society’s interests in a final decision on the merits. [§6.08] Section 7 Rights With the “main” category, the third stage of the analysis is only reached where uncertainty about the Section 7, which guarantees both substantive and proce- appropriateness of a stay of proceedings remains af- dural fairness, is a source of diverse Charter applica- ter the first two stages. With the “residual” catego-

Criminal Procedure 85 ry, the third stage is always considered (Babos; R. v. 621). The Crown’s discretion in this regard is not Bacon, 2020 BCCA 140). A judicial stay is “the reviewable by the court, unless the information is most sweeping and drastic remedy in the arsenal of obviously relevant. Instead, the defence must bring remedies” (R. v. Erickson, 1984 CanLII 527 an O’Connor application for the information (R. v. (BCCA)) and is therefore reserved only for the Nicholson, 2015 BCSC 772). “clearest of cases” (R. v. Regan, 2002 SCC 12). Third-party records which come into the possession of the Crown are generally disclosable, subject to 3. Disclosure the Stinchcombe principles. An exception exists for It is a principle of fundamental justice that a person proceedings for sexual offences, where disclosure is charged with an offence has the right to make full governed by ss. 278.1–278.91 of the Criminal Code answer and defence. The Crown’s duty to provide (see R. v. Mills, [1999] 3 S.C.R. 668). Under this full, fair, and timely disclosure flows from this statutory regime, a court must determine that the right (R. v. Carosella, [1997] 1 S.C.R. 80). The records are likely relevant to an issue at trial or the Crown must disclose all information unless it is: competence of a witness to testify. If so, the court must also determine whether, amongst other things, 1. beyond the control of the prosecution; the need for disclosure to make full answer and de- 2. clearly irrelevant; fence outweighs the detrimental impact on privacy. For offences not governed by this statutory regime, 3. privileged; or a similar balancing process is provided for in 4. otherwise prohibited by law (R. v. O’Connor (see also McNeil; R. v. Quesnelle, 2014 O’Connor, [1995] 4 S.C.R. 411) SCC 46). The Crown has a continuing duty to disclose all rel- Remedies available for a breach of an accused’s evant information that it has in its control or posses- right to disclosure include: sion. This obligation applies to both inculpatory and  an order for disclosure of the information; exculpatory evidence. Relevance is defined in terms of the information’s usefulness to the accused; it  an adjournment of the trial for further disclo- does not matter whether the prosecution plans on sure (possibly with an order for costs); tendering the evidence at trial. Information is disclosable if it can reasonably be used by the accused  the exclusion of late disclosed evidence; in meeting the Crown’s case, advancing a defence,  an order for a new trial where disclosure is or making a decision about the conduct of the de- made after the verdict has been entered (R. v. fence. When in doubt, the Crown must err on the side of inclusion (R. v. Stinchcombe, [1991] 3 Illes, 2008 SCC 57); or S.C.R. 326).  a judicial stay of proceedings. Defence counsel must be diligent in pursuing dis- In determining the appropriate remedy, the court closure from the Crown: “A lack of due diligence is will balance the right of the accused to a fair trial a significant factor in determining whether the with the interest of society in the efficient admin- Crown’s non-disclosure affected the fairness of the istration of justice, and grant the least severe reme- trial process” (R. v. Dixon, [1998] 1 S.C.R. 244). dy that will cure the prejudice to the accused. A The duty to disclose includes an obligation to pre- stay of proceedings will only be imposed in the serve relevant evidence. Evidence which has been clearest of cases, either where no alternative remedy inadvertently lost or destroyed, however, does not will cure the prejudice to the accused to make full automatically result in a finding of a Charter answer and defence, or irreparable prejudice would breach. The test is whether the evidence was lost or be caused to the integrity of the judicial system (R. destroyed due to unacceptable negligence, having v. Taillefer, 2003 SCC 70; Bjelland). regard to: 4. Pre-Charge Delay  whether the Crown (or police) took reasonable steps to preserve the evidence; and Pre-charge delay which results in demonstrated prejudice to the accused’s fair trial rights or  the perceived relevance of the evidence at the amounting to an abuse of process, can be a breach time (R. v. La, [1997] 2 S.C.R. 680). of s. 7 (see dissent of Hoegg J.A. in R. v. Hunt, 2016 NLCA 61, aff’d 2017 SCC 25). It is not the Crown counsel have a duty to make reasonable in- length of the delay that is at issue, but its effect. The quiries when put on notice of potentially relevant accused must establish that they suffered actual or material in the hands of the police or other Crown substantial prejudice, that: entities (R. v. McNeil, 2009 SCC 3; David Layton, Ethics and Criminal Law, 2nd ed. (Irwin Law) at

Criminal Procedure 86  compromised trial fairness affecting the right A Rowbotham application will be granted only in excep- to make a full answer and defence—e.g. lost tional cases. The factors a court may consider include: or degraded evidence, missing witnesses, loss 1. the accused’s financial situation; of memory; or 2. the complexity of the legal and factual issues;  risks undermining the integrity of the judicial and process—e.g. egregious and inexcusable inac- 3. the likelihood of imprisonment (R. v. Crich- tion on the part of the police or Crown or se- ton, 2015 BCCA 138). rious state-imposed psychological stress (Mills v. The Queen, [1986] 1 S.C.R. 863; see If the application is successful, the judge will direct a also Blencoe). stay of proceedings until the government provides funds for counsel. Such an order may sometimes result in the The usual remedy for pre-charge delay is a judicial Crown discontinuing the prosecution. The Crown has a stay of proceedings (R. v. Underwood, 2008 ABCA right of appeal from the stay of proceedings. 263). Other remedies are possible, such as admitting witness statements under the principled excep- The appointment of counsel can also be made pursuant tion, or disallowing evidence sought to be tendered to a provision of the Criminal Code, such as at a fitness by the Crown. hearing (s. 672.24), for the cross-examination of certain witness (s. 486.3), or in proceedings at the Court of Ap- To warrant a judicial stay, the pre-charge delay peal (s. 684). must so adversely affect the fairness of the trial or the accused’s ability to make full answer and de- [§6.10] Effective Assistance of Counsel (s. 7 fence that it offends the principles of fundamental and s. 11(d)) justice (R. v. L.J.H., [1997] 120 C.C.C. (3d) 88 (M.B.C.A.)). It is insufficient to merely establish The right to the “effective assistance of counsel” is a that evidence is missing or no longer available. To principle of fundamental justice under ss. 7 and 11(d) of establish a breach, the accused must show the miss- the Charter. A convicted offender can be granted a new ing evidence would have materially assisted their trial on appeal where ineffective representation by de- defence and therefore caused actual prejudice: R. v. fence counsel results in a miscarriage of justice (R. v. A.(D.) (1993), 76 C.C.C. (3d) 1 (Ont. C.A.). The G.B.D., 2000 SCC 22). prejudice must be “of such magnitude and importance that it amounts to a deprivation of the op- The offender must substantiate the alleged ineffective portunity to make full answer and defence” (R. v. assistance with evidence establishing that: Leuenberger, 2014 BCCA 156).  counsel’s acts or omissions constituted in- Where the accused is seeking a judicial stay, the s. 7 competence (the “performance component”); hearing should be heard after all the evidence is be- and fore the court. Judges cannot assess the fairness of the trial or the ability to make full answer and de-  the ineffective representation resulted in prej- fence in an evidentiary vacuum (R. v. La, [1997] 2 udice causing a miscarriage of justice (the S.C.R. 680). “prejudice component”). In determining competence, the conduct of counsel is [§6.09] Rowbotham Applications (s. 7 and assessed against a reasonableness standard and there is a s. 11(d)) strong presumption in favour of competence. Reasonable minds may disagree on strategies to employ in conduct- The courts have an interest in ensuring that an unrepre- ing a defence and it is not enough to simply say, in hind- sented accused has a fair trial. Where the absence of de- sight, that counsel should have handled the case differ- fence counsel is a barrier to a fair trial, the courts will ently (G.B.D.; R. v. Trejo, 2020 BCCA 302; R. v. Baylis, explore every reasonable way to address the issue. 2015 ONCA 477). The Charter does not expressly guarantee the right of an In 2013, the Court of Appeal for British Columbia issued indigent accused to be provided with state-funded coun- a Criminal Practice Directive regarding appeals of this sel. Nevertheless, in cases where provincial legal aid is nature, requiring, among other things, that trial counsel denied, ss. 7 and 11(d) require funded counsel to be pro- be notified. This gives trial counsel an opportunity to vided if the accused wants legal representation but can- respond to the allegations of incompetence. See Ineffec- not afford a lawyer, and representation of the accused by tive Assistance of Trial Counsel (Criminal Practice Di- counsel is essential to a fair trial. A Charter application rective, 12 November 2013). by the accused for the appointment of funded counsel is called a “Rowbotham Application,” after the leading case (R. v. Rowbotham, [1988] 41 C.C.C. (3d) 1 (O.N.C.A.)).

Criminal Procedure 87 [§6.11] Search and Seizure (s. 8) the issuance of a search warrant may result in the warrant being ruled invalid, thereby estab- Everyone has the right to be secure against unreasonable lishing a s. 8 breach. search and seizure (s. 8). The right protects information- Material non-disclosure by the affiant, or delib- al privacy. Accordingly, police are required, for exam- erate misrepresentation, may also invalidate a ple, to obtain a warrant to gather subscriber information warrant. However, the mere presence of non- for internet users (R. v. Spencer, 2014 SCC 43). When disclosure or misinformation is not fatal. Ra- real evidence (physical evidence) is tendered at trial, its ther, the reviewing court must ask whether, set- admission is frequently challenged under s. 8 of the ting aside the erroneous or fraudulent infor- Charter. If successful, the evidence can be excluded un- mation, there was a sufficient basis to issue the der s. 24(2). warrant (R. v. Bisson, [1994] 3 S.C.R. 1097; R. A search will be reasonable only if: v. Garofoli, [1990] 2 S.C.R. 1421). 1. it is authorized at law (pursuant to statute, the (b) Warrantless Searches common law or a prior judicial authorization); Warrantless searches are prima facie unreason- 2. it is conducted in a reasonable manner, namely, able. The burden thus shifts to the Crown to it is carried out in accordance with the proce- demonstrate, on a balance of probabilities, that dural and substantive requirements the law pro- the search was reasonable (Hunter. v. Southam vides; and Inc., [1984] 2 S.C.R. 145). The same principle applies to the seizure of items that fall outside 3. the scope of the search is limited to what is au- of a search warrant’s express parameters (R. v. thorized (R. v. Caslake, [1998] 1 S.C.R. 51). Mandziak, 2014 BCCA 41). For example, a computer can only be searched as part of a war- 1. Authorized by Law ranted search when the warrant specifically al- Examples of statutory provisions that authorize lows it to be done (R. v. Vu, 2013 SCC 60). searches are s. 487(1) of the Criminal Code and s. 11 of the Controlled Drug and Substances Act, 2. Conducted in a Reasonable Manner both of which allow for the issuance of a search Even if a search is found to be authorized by law, it warrant. They also specifically authorize warrant- must also be conducted in a reasonable manner. less searches in exigent circumstances. For example, “strip searches” or searches of bodily The police also have common law search powers, cavities, even when incident to a lawful arrest, must including the power to search incident to a lawful not be carried out routinely. The manner of the arrest, and the power to detain and search where search must be reasonable, namely: there are reasonable grounds to suspect that the person is connected to a particular crime and detention  the search should be carried out in a police is necessary to investigate that crime. In the latter station, in privacy; circumstances, if there are reasonable grounds to believe that the officer’s safety or the safety of oth-  the search should be supervised by a senior ers is at risk, a protective “pat-down” search is war- officer; ranted to prevent avoidable harm (R. v. MacDonald,  police must ensure the health and safety of the 2014 SCC 3; R. v. Patrick, 2017 BCCA 57). suspect; and (a) Warranted Searches  the search should involve minimal force (R. v. Warranted searches can be attacked by focusing Golden, 2001 SCC 83; R. v. Saeed, 2016 SCC on defects on the face of the warrant or on 24). problems associated with the way it was obtained. For a further example, police may search a cell phone seized incident to a lawful arrest only to the The defence may also try to show that there extent that the search is reasonably necessary to were insufficient grounds for the warrant to be achieve some valid purpose connected to the arrest. issued, even though this goes behind a facially Police must also take detailed notes of the search valid warrant (R. v. Williams (1987), 38 C.C.C. (R. v. Fearon, 2014 SCC 77). Failing this, the (3d) 319 (Y.C.A.)). The defence can challenge search will not have been conducted in a reasonable the affidavit prepared by the police setting out manner. the grounds for the warrant (the “Information to Obtain” or “ITO”). Leave of the court is re- 3. Nexus Between the Breach and the Evidence quired to cross-examine the ITO affiant (R. v. Lising, 2005 SCC 66). Insufficient grounds for The applicant must show that the evidence was “obtained in a manner that infringed or denied” a Char-

Criminal Procedure 88 ter right. As such, there must be a causal, temporal trol over the movement of a person through a or contextual connection between the Charter demand or direction which may have signifi- breach and the evidence (R. v. Wittwer, 2008 SCC cant legal consequences (e.g. a demand for a 33). breath sample); or In R. v. Goldhart, [1996] 2 S.C.R. 463, for example, 3. psychological restraint (without legal compul- the police searched a house and discovered a mari- sion)—where a person interacting with police juana grow operation. The house had three occu- acquiesces in a deprivation of their liberty, pants, including the accused, and all three were ar- reasonably believing that they have no choice rested. One occupant subsequently pleaded guilty but to comply with the police direction or de- and testified at the trial of the accused. The accused mand and that they are not free to leave (R. v. sought the exclusion of this testimony on the Therens, [1985] 1 S.C.R. 613; R. v. Grant, grounds that it was the product of an illegal search. 2009 SCC 32). The court found there was no temporal link given To establish a detention, the accused must demonstrate the many intervening events between the search and an element of compulsion or coercion (Therens). Not the testimony, and the causal connection between every conversation or physical interaction between po- the illegal search and the witness’s decision to testi- lice and a suspect will amount to a detention. There must fy was extremely tenuous. be an element of significant physical or psychological restraint at the hands of the state (R. v. Suberu, 2009 4. Searches of Law Offices SCC 33). Searches of law offices and seizure from lawyers The purpose of s. 10(b) is to ensure that those under in- must comply with a strict regime established to pro- vestigation and under the control of the state are given a tect the privacy interests of lawyers and their cli- meaningful opportunity to seek legal advice on issues ents. Solicitor-client privilege is a principle of fun- such as disclosure, judicial interim release and the right damental justice protected by s. 7, and the privilege to silence (R. v. Bartle, [1994] 3 S.C.R. 173). The police is prima facie at risk in this situation. The seized have an “informational duty” to advise the person in cus- material must be sealed until privilege can be as- tody of the right to counsel, that immediate and free le- serted and the issue adjudicated by the court (see gal advice can be provided, and how to access the advice Lavallee v. Canada (Attorney General), 2002 SCC (R. v. Brydges, [1990] 1 S.C.R. 190). 61). Police also have “implementation duties” that are only The Law Society of British Columbia has issued triggered after the detainee asserts the right to counsel. guidelines on its website for law office search war- Police must provide the detainee with a reasonable op- rants to help ensure privilege is protected. If client portunity to exercise that right, except in urgent and files become the subject of a search or seizure by dangerous circumstances. Police must also refrain from police or other authorities, you should assert privi- eliciting evidence from the detainee until the right has lege promptly and, where possible, seal the materi- been exercised (R. v. Prosper, [1994] 3 S.C.R. 236; als in packages. You should also contact the Law Bartle). Society immediately. Detainees who assert the right to counsel must be dili- [§6.12] Right to Counsel (s. 10(b)) gent in exercising it, or police may continue their investigation (R. v. Ross, [1989] 1 S.C.R. 3; R. v. Smith, Everyone detained or arrested has the right to retain and [1989] 2 S.C.R. 368). The accused, however, should be instruct counsel without delay, and to be promptly in- allowed a reasonable amount of time to consider exercis- formed of that right (s 10(b)). ing the right before questioning begins (R. v. Hollis (1992), 76 C.C.C. (3d) 421 (B.C.C.A.)). Absent evi- An arrest involves the seizure or touching of a person’s dence that the accused did not understand the right when body with a view to detaining that individual, or the ut- informed of it, the onus falls on the accused to show the terance of words to that effect to a person who submits accused was either denied the right when requested or to an arresting officer. An arrest can arise de facto; it is was denied the opportunity to ask for it (R. v. Baig, the substance of what occurred that matters, not the pre- [1987] 2 S.C.R. 537). Once police properly inform a de- cise form of words used by the officer (R. v. Latimer, tainee of the right to counsel, the onus is on the detainee [1997] 1 S.C.R. 217). to assert it; the police have no obligation to go further A detention, for Charter purposes, can arise in three and ask the detainee whether they want to speak with a ways: lawyer (R. v. Knoblauch, 2018 SKCA 15; Hollis; Baig). 1. physical restraint; As s. 10(a) requires the police to provide the reasons for the arrest or detention; the right to counsel can only be 2. psychological restraint (with legal compul- exercised in a meaningful way if the extent of jeopardy sion)—where a state authority assumes con- is known. Where the offence under investigation be-

Criminal Procedure 89 comes significantly more serious or is a new, unrelated trial judge (R. v. Fagan, 1998 CanLII 5018 offence, the detainee should be advised of this change, (B.C.C.A.)). The motion should be supported by ei- and again be afforded both components of the right to ther an agreed statement of facts, or an affidavit set- counsel (R. v. Evans, [1991] 1 S.C.R. 869; R. v. Sinclair, ting out the reasons for the delays, and referencing 2010 SCC 35). Where the accused would have been able the relevant portions of the transcript of proceed- to appreciate the extent of the jeopardy, or the investiga- ings. tive shift arises out of or is easily envisaged as part of the initial investigation, a new s. 10(b) advisement may 2. Legal Test not be required (R. v. Boomer, 2001 BCCA 220; R. v. A delay, between charge and the anticipated end of O’Donnell, 1991 CanLII 2695 (N.B.C.A.)). trial, of more than 18 months for trials in the Pro- Once an accused asserts the right to counsel, the accused vincial Court, or more than 30 months for trials in is entitled to immediately contact a lawyer of choice. If the Superior Court, is presumptively unreasonable. the accused is unable to reach the lawyer of choice, po- Delay caused or waived by the defence does not lice must give the accused a reasonable opportunity to count toward these limits. To rebut the presumption consult with someone else before proceeding to gather of unreasonableness, the Crown must establish the evidence from the accused (R. v. McCrimmon, 2010 presence of exceptional circumstances, which may SCC 36). Facilitating contact with the lawyer of choice arise from (1) discrete, unexpected events; or assists in ensuring that the right to counsel is exercised (2) case complexity. If the Crown is unable to rebut in a “meaningful” way (R. v. Badgerow, 2008 ONCA the presumption, the delay will be found unreason- 605). able and a stay of proceedings must follow. Where the delay falls short of the presumptive ceilings, it is The prosecution bears the burden of establishing that the still open to the accused to argue that the delay is accused waived the right to counsel (Bartle). The waiver nonetheless unreasonable within the context of the must be voluntary, clear, informed, and unequivocal case (R. v. Jordan, 2016 SCC 27). (Prosper). Waivers will be scrutinized closely where the accused is vulnerable because of age, mental capacity or Section 11(b) also applies to unreasonable delay be- extreme intoxication. Where an accused has initially as- tween the conclusion of trial and when the judge serted the right, but then indicates a desire to waive the renders a decision. Such delay is unreasonable right, police must again advise the accused of the right to where the trial judge took “markedly longer” than a reasonable opportunity to contact counsel, and also reasonably necessary (R. v. K.G.K., 2020 SCC 7). advise the accused that the police must hold off on gath- Finally, s. 11(b) applies to unreasonable delay be- ering evidence until the accused has had that reasonable tween conviction and sentencing. This delay, how- opportunity (Prosper; R. v. Smith, 1999 CanLII 3713 ever, is considered separately from pre-trial delay (O.N.C.A.)). using the analytical framework set out in R. v. Morin (R. v. S.C.W., 2018 BCCA 346). The right to counsel does not include a right to have a lawyer present during police questioning (Sinclair). Section 11(b) does not apply to pre-charge delay. As discussed above, prejudice that arises from pre- When a denial of the right to counsel occurs, statements charge delay is addressed under s. 7 of the Charter. or confessions obtained by police from are likely to be excluded pursuant to s. 24(2), because their admission [§6.14] Cruel and Unusual Punishment would adversely impact trial fairness (R. v. Elshaw, (s. 12) [1991] 3 S.C.R. 24; Evans).

[§6.13] Post-Charge Delay (s. 11(b)) Everyone has the right not to be subjected to cruel and unusual treatment or punishment (s. 12). Challenges to the constitutionality of mandatory minimum sentences Everyone charged with an offence has the right to be are brought under this section. tried within a reasonable time (s. 11(b)). A judicial stay of proceedings is the only remedy available for a breach To constitute cruel and unusual punishment, the sentence of this right. must be “grossly disproportionate,” meaning the sentence is “so excessive as to outrage standards of decen- 1. Procedure cy” and is “abhorrent or intolerable” to society (R. v. Lloyd, 2016 SCC 13). These applications are usually made pre-trial. As always, the accused should give reasonable notice Courts will first consider whether the minimum sentence of the application, and should supply both the is grossly disproportionate for the offender being sen- Crown and the court with written material in sup- tenced. If not, they will then consider whether the mini- port of the application. mum sentence would be grossly disproportionate in a “reasonably hypothetical” situation advanced by the of- These applications should be made to the trial court, fender (R. v. Nur, 2015 SCC 15). and preferably heard by a different judge than the

Criminal Procedure 90 The only available remedy is a declaration that the min- with good governance (i.e. policy considerations) imum sentence is of no force and effect, due to incon- (Vancouver (City) v. Ward, 2010 SCC 27). For ex- sistency with the Charter. A constitutional exemption ample, damages were awarded against the Crown under s. 24(1) is not appropriate (R. v. Ferguson, 2008 for intentionally withholding material disclosure, SCC 6). thus causing a miscarriage of justice (Henry v. Brit- ish Columbia (Attorney General), 2015 SCC 24). A reduction in sentence below the mandatory minimum sentence, however, may be available as a remedy under Damages will only be available where state conduct s. 24(1) for egregious and unconstitutional state conduct taken pursuant to law was clearly wrong, in bad (R. v. Nasogaluak, 2010 SCC 6). faith, or an abuse of power. Damages are not otherwise available for harm caused by a law that is Section 12 only protect human beings, so corporations subsequently declared to be unconstitutional cannot use it to challenge punishments imposed on them (Mackin v. New Brunswick (Minister of Finance), for provincial (and likely criminal) offences (Quebec 2002 SCC 13). (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32). [§6.16] Bans on Publication [§6.15] Costs or Damages Publication bans may flow from statute or common law. They can be automatic, mandatory (upon meeting pre- Criminal courts are courts of “competent jurisdiction” to conditions), or discretionary. Some bans are designed to award costs against the Crown under s. 24(1). Only protect the accused’s the Charter rights, such as the pre- courts hearing civil actions, however, are courts of sumption of innocence and right to a fair trial. These “competent jurisdiction” to order damages awards include bans on the publication of the evidence taken at against the Crown for unconstitutional conduct. a bail hearing or preliminary inquiry (Criminal Code ss. 517, 539; Toronto Star Newspapers v. Canada, 2010 1. Costs Against the Crown in Criminal SCC 21). Proceedings Costs are an available remedy under s. 24(1) in criminal proceedings for a Charter breach involving prosecutorial misconduct, but not police misconduct in which the Crown did not participate (R. v. Le- Blanc, 1999 NSCA 170). Mere negligence by the Crown is not enough (R. v. Singh, 2016 ONCA 108). Costs are a rare and exceptional remedy available in cases involving “a marked and unacceptable departure from the reasonable standards expected of the prosecution” (R. v. 974649 Ontario Inc., 2001 SCC 81). The trial court may not be the best venue to hear an application for costs where the Crown needs to be able to make full answer and defence. In this situation, the procedure governing civil actions provides a more appropriate framework for the application with pleadings, discovery of the parties, and the discovery of documents (R. v. McGillivary (1990), 56 C.C.C. (3d) 304 (N.B.C.A.)).

2. Damages for Charter Violations in Civil Proceedings Damages under s. 24(1) may be awarded in a civil action where the claimant demonstrates (1) that the state (police or Crown) breached their Charter rights and (2) a damages award would provide just compensation, vindication of the right, or deter future breaches. If established, the onus then shifts to the state to rebut the claim based on countervailing considerations. These include the availability of alternative remedies and the potential interference

Criminal Procedure

91 Chapter 7 3. Declaration of Principle Section 3 sets out the guiding principles of the YCJA, which include the following: (a) the youth criminal justice system is intended to protect the public by holding The Youth Criminal Justice Act1 young people accountable and promoting their rehabilitation and reintegration; (b) the criminal justice system for young people must be separate from that of [§7.01] Introduction adults, since: (i) it presumes that young people are The Youth Criminal Justice Act, S.C. 2002, c. 1 (the less blameworthy than adults, due to “YCJA”) was enacted on April 1, 2003. It replaced the their youth, and Young Offenders Act, R.S.C. 1985, c. Y-1 (the “YOA”). The YCJA enacted some changes: (ii) there must be timely intervention that reinforces the link between the (a) it provides a broader range of sentences than offending behaviour and its conse- the YOA; quences; (b) it narrows the circumstances in which a young (c) sentencing should be meaningful in light person may be detained pending trial; of the youth’s circumstances, and should (c) it strictly limits the availability of custodial respect gender, ethnicity, cultural and lin- sentences; and guistic differences, including the needs of Indigenous youth and youth with special (d) it eliminates applications to transfer young needs; and people to trial in adult court, by instituting sentencing hearings to determine whether an adult (d) a young person charged with a criminal sentence should be imposed. offence must be given the right to be heard and to meaningfully participate at The YCJA starts by setting out its guiding principles. every stage of the legal decision-making process (this principle reflects Canada’s 1. Preamble ratification of the United Nations Con- vention on the Rights of the Child, as not- The YCJA begins with a strong statement of the ed in the Preamble). values underlying our youth justice system; namely, accountability, respect, responsibility and Lawyers who represent young people must under- fairness. stand and start from these guiding principles. The YCJA Preamble also sets moral and legal standards for the protection and care of young peo- 4. Overview of Recent Changes ple in Canada, and how they should be treated by Amendments to the YCJA under An Act to amend the youth justice system. The Preamble recognizes the Criminal Code, the Youth Criminal Justice Act the United Nations Convention on the Rights of the and other Acts and to make consequential amend- Child, which was ratified by Canada in 1991 and ments to other Acts, S.C. 2019, c. 25, came into guarantees enhanced procedural protection for force in September 2019 and December 2019. The young people. amendments include changes to the treatment of administration of justice offences, which are of- 2. Interpretation fences against the integrity of the justice system, Section 2 defines terms used throughout the YCJA, such as failure to appear in court. The amendments including new definitions introduced in 2012, such encourage alternatives to charges in response to as “serious offence,” “violent offence” and “serious administration of justice offences, and narrow the violent offence.” circumstances in which custodial sentences can be imposed for them. They also restrict the conditions that can be imposed on young persons at bail or 1 Derek Wiebe, Defence Lawyer, and Lionel Farmer, Defence sentencing, to ensure conditions imposed on youth Lawyer, kindly revised this chapter in August 2020 and Novem- are reasonable in the circumstances and necessary ber 2016. It was updated by PLTC in 2018 and 2019. Jennifer for criminal justice purposes. Duncan wrote this chapter in January 2004 and updated it in 2005, 2006 and 2008.

Criminal Procedure 92 A number of the amendments are aimed at reducing The YCJA prohibits the publication of any information unnecessary delay. This is consistent with the Su- that could identify an accused or convicted young per- preme Court of Canada’s direction in R. v. Jordan, son. This ban is subject to exceptions listed in s. 110, 2016 SCC 27, to review criminal rules and proce- such as where the young person was given an adult sen- dures to ensure they are conducive to timely justice tence. Access to Youth Justice Court records is restrict- and focus on what is necessary for a fair trial. As ed, and is governed by ss. 117–129. noted earlier in the Practice Material: Criminal, the court’s decision in R. v. Jordan set out ceilings [§7.03] Alternatives to Charging an Offence beyond which delay is considered presumptively unreasonable. In R. v. K.J.M., 2019 SCC 55, the Not every offence alleged to have been committed by a court confirmed that those timeframes apply to young person will end up as a charge before the Youth youth cases as well, and declined to make them Justice Court, particularly if the transgression is minor shorter for youth. and does not involve bodily harm. As described below, under the YCJA, police must con- 5. Further Resources sider alternatives to forwarding a Report to Crown For practising in this area of law, these are recom- Counsel for charge approval, and the Crown will rou- mended resources: tinely look at alternatives to charging young persons. Still, defence counsel should always ask the Crown if  Bala, Nicholas, and Sanjeev Anand, Youth extrajudicial measures were considered. Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012). 1. Extrajudicial Measures  Direnfeld, Rochelle, et al., Annotated Youth Section 6 of the YCJA requires a police officer in- Criminal Justice Act, 2nd ed. (Toronto: vestigating an offence that is alleged to have been LexisNexis, loose-leaf). committed by a young person to consider whether other measures would be adequate, such as the fol-  Harris, Justice Peter J., and Justice Miriam lowing: Bloomenfeld, Youth Criminal Justice Act Manual (Toronto: Carswell, loose-leaf).  taking no further action;  LexisNexis, Youth Criminal Justice NetLetter.  warning the young person or administering a caution; or  Tustin, Lee, and Robert E. Lutes, A Guide to the Youth Criminal Justice Act, 2020/2021 ed.  referring the young person to a community- (Toronto: LexisNexis, 2019). based agency that may help the young person stay out of trouble. [§7.02] Jurisdiction Section 4.1(1) sets out circumstances in which extrajudicial measures are presumed to be adequate The YCJA, s. 2, defines a “young person” as being at for certain administration of justice offences, such least 12 but under 18 years of age. Persons under 12 as breaches of conditions or of community-based cannot be charged with crimes. Persons who are 12–17 youth sentences. If extrajudicial measures would may be tried in Youth Justice Court, a division of the not be adequate, s. 4.1(2)(b) directs that, as an al- BC Provincial Court. Accused persons who are 18 years ternative to proceeding with a charge, an appear- old or older go to trial in adult court. ance notice should be issued under the new judicial referral hearing process in the Criminal Code, or Youth Justice Court hears cases involving criminal of- the youth sentence should be reviewed under the fences under the YCJA as well as violations of provin- YCJA provisions relating to reviews of community cial law under the Youth Justice Act (for provincial sentences, if either of those measures would be ad- prosecutions, see §7.10). equate. Persons who are 12–17 are entitled to free legal repre- Extrajudicial measures by police are informal sentation through legal aid. (much like warnings instead of tickets for speeding infractions). They do not require that the young Proof of age can come from the testimony of a parent, a person admit guilt or accept responsibility. birth certificate, a business record of a society that has Crown counsel also have some authority to use ex- care or control of the young person, any information the trajudicial measures, such as issuing a caution let- court considers reliable, or from inferences drawn from ter rather than approving a charge. the person’s appearance or statements made in direct or cross-examination (s. 148).

Criminal Procedure 93 2. Extrajudicial Sanctions [§7.05] Detention and Release Before Sentencing (Bail) Extrajudicial measures described in s. 6 may not be appropriate in some cases, due to the seriousness of Section 28 of the YCJA incorporates the bail provisions the offence, a history of offences by the young per- from Part XVI of the Criminal Code, with certain excep- son, or the presence of aggravating factors. If the tions and modifications. measures set out in s. 4.1(2)(b) would also not be adequate, extrajudicial sanctions pursuant to Peace officers and judges are prohibited from detaining ss. 10–12 may be appropriate, so long as the fol- a young person in custody or imposing conditions of lowing criteria are met: release as a substitute for providing proper child protection, mental health, or other social measures (s. 28.1).  the accused young person accepts responsibility for the behaviour; Section 29(1) sets out the limited circumstances for imposing conditions under s. 515(4)–(4.2) of the Criminal  the young person is informed of the young Code on a young person: person’s right to be represented by counsel; (a) the condition must be necessary to ensure the  the Attorney General considers there is young person’s attendance in court or for the enough evidence to prosecute; and protection or safety of the public, including any  the young person’s parents are informed. victim of or witness to the offence; The victim is entitled to know the name of the (b) the condition must be reasonable, having regard young person who proceeds with extrajudicial to the circumstances of the offending behaviour; sanctions. and A program of extrajudicial sanctions might include (c) the young person must reasonably be able to community service, apology and restitution, attend- comply with the condition. ing school or a program of study, counselling, or Section 29(2) sets out the limited circumstances for de- probation. The Justice Education Society of BC taining a young person before sentencing: provides information about youth justice and examples of extrajudicial sanctions: www.ycja.ca (a) the young person has been charged with /?q=youth/extrajudicial-measures/in-depth. (i) a “serious offence” as defined in s. 2, or There is a record of a young person’s compliance (ii) an offence other than a serious offence, with extrajudicial sanctions. If the young person but the young person has a record that in- fails to comply with sanctions, the young person dicates a pattern of outstanding charges or can be prosecuted for the offence. The admission findings of guilt; and the young person made in order to be considered for extrajudicial sanctions cannot be used against (b) the court has found on a balance of probabilities the young person should the matter proceed to trial. that detention is necessary (i) to ensure the young person’s attendance [§7.04] First Appearance at court, (ii) for the protection and safety of the public, At the young person’s first appearance on a charge in or Youth Justice Court, a judge has several obligations under s. 32(1): (iii) if release would undermine the public’s confidence in the administration of jus- (a) to read the charges to the young person; tice; and (b) if the young person is not represented by (c) the court is satisfied that any risks identified un- counsel, to inform the young person of the der (b) could not be addressed by imposing con- right to retain and instruct counsel; and ditions of release. (c) if the Crown gives notice that it intends to The court must inquire whether a “responsible person” seek an adult sentence, to inform the young is available to care for a young person who would oth- person that if there is a finding of guilt, the erwise be detained in custody (s. 31). The responsible court might impose an adult sentence. person must be willing and able to take care of and exercise control over the young person, and the young person must be willing to be placed in the care of that person. A person who agrees to act as a “responsible person” under s. 31, and wilfully fails to comply with the undertaking required by s. 31, can be found guilty of an

Criminal Procedure 94 offence (s. 139). A “responsible person” who fails to YCJA. Just as the Crown may proceed by direct in- meet the obligations required by s. 31 may also face civ- dictment against an adult and require that the adult il liability. be tried by judge and jury, the Crown may also require that a young person be tried by judge and jury Unlike in adult court, where Part XVI of the Criminal pursuant to s. 67(6), despite the young person’s Code dictates that in some circumstances the onus of election. proof in a bail hearing may shift to the accused, in Youth Justice Court the onus to establish that detention 2. Evidence is necessary always remains with the Crown (s. 29(3)). Evidence is led before a Youth Justice Court as it Section 525 of the Criminal Code requires that pre-trial would be in an adult criminal court, except con- detention be reviewed by the Supreme Court 90 days cerning the statements of accused young persons. after the accused is first brought before the court. This The statements of accused young persons are gov- provision of the Criminal Code applies to youth, except erned by s. 146. The YCJA recognizes that young that where a youth is being prosecuted summarily, the persons are not adults: additional procedural pro- 90-day time limit is reduced to 30 days by s. 30.1 of the tections are necessary to meet the special needs of YCJA. young people. For the oral or written statement of a young person that was given to a peace officer or [§7.06] Conferencing person in authority to be admitted into evidence, in addition to compliance with Charter rights upon A conference may be convened by a youth judge, pro- arrest or detention, the Crown must prove the fol- vincial director, police officer, justice of the peace, lowing: prosecutor, or youth worker for the purpose of making a decision under the YCJA (s. 19). For instance, a confer-  the statement was voluntary, in the common ence may be held to determine appropriate extrajudicial law sense (s. 146(2)(a)); sanctions, bail terms, or sentences. After a justice in  the person taking the statement clearly ex- Youth Justice Court has found a young person guilty of plained to the young person, in age- an offence, a conference may be convened for recom- appropriate language, that the young person mendations on sentencing (s. 41). was under no obligation to make a statement (s. 146(2)(b)(i)), that any statement made [§7.07] Trial could be used in evidence against the young person (s. 146(2)(b)(ii)), that the young per- 1. Venue son had the right to consult counsel and a parent or other person (s. 146(2)(b)(iii)), The trial will be before a Provincial Court judge, and that the statement must be made in the unless the Crown serves notice that it will seek an presence of counsel and a parent (or other adult sentence if the young person is convicted. person chosen by the young person), unless The Crown may serve notice that it will seek an the young person decided otherwise adult sentence if the young person is charged with (s. 146(2)(b)(iv)); an offence for which the maximum available sanc-  the young person was given a reasonable tion under the Criminal Code is two years or more, opportunity before making the statement to and the young person is over the age of 14 (s. 64). consult with counsel and a parent, adult rel- This notice must be served either before a plea is ative, or person of choice, so long as that entered or with leave of the court. Following recent person was not a co-accused or under inves- amendments, prosecutors do not need to consider tigation for the same offence (s. 146(2)(c)); seeking adult sentences for serious violent offences and or advise the court if they decide not to seek an adult sentence.  if the young person chose to consult with a person, the young person was given a rea- If the Crown has served notice that it will seek an sonable opportunity to make the statement adult sentence, then the young person may access in the presence of that person (s. 146(2)(d)). all the procedural options that would be available to an adult facing an indictable Information. Spe- Under s. 146(6) of the YCJA, a statement may be cifically, the young person may elect the mode of admitted into evidence despite a technical irregular- trial in the same way and with the same options for ity, if the admission of the statement would not a trial that would be available to an adult in Su- bring into disrepute the principle that youth are en- preme Court, with a judge, or judge and jury, and titled to enhanced procedural protection. with a preliminary inquiry if the offence is punish- Young persons may waive their rights under the able by 14 years or more of imprisonment. Election YCJA and give statements without consulting any- as to mode of trial is governed by s. 67 of the

Criminal Procedure 95 one or having anyone present. The waiver must be (ii) the young person will reasonably be in writing, or audio- or videotaped (s. 146(4)). If able to comply with the condition, the waiver is technically irregular (for example, if and the audiotape fails to record), the statement may (iii) the condition is not used as a substi- still be admitted (s. 146(5)). tute for appropriate child protection, The statement provisions do not apply to spontane- mental health or other social ous statements to a peace officer or other person in measures; and authority if the spontaneous statements were given (f) subject to paragraph (c), the sentence may before there had been a reasonable opportunity to have the following objectives: comply with the requirements of the YCJA (s. 146(3)). (i) to denounce unlawful conduct, and (ii) to deter the young person from commit- [§7.08] Youth Sentences ting offences. Section 38(3) requires the sentencing judge to con- 1. The Purpose and Principles of Sentencing sider the degree to which the young person partici- The YCJA, s. 38, sets out the purpose and princi- pated in the offence, the harm done and whether it ples of youth sentencing. Also, if the youth is In- was intentional or reasonably foreseeable, any rep- digenous, Gladue factors will apply: see §8.02(3). aration made by the young person, any time spent in pre-trial custody, previous findings of guilt, and The purpose of youth sentencing is to hold the any aggravating or mitigating circumstances rele- young person accountable by imposing just sanc- vant to the purpose and principles of youth sentenc- tions that have meaningful consequences and pro- ing. mote the young person’s rehabilitation and reintegration into society, thereby contributing to the Section 39(1) places very specific restrictions on long-term protection of the public (s. 38(1)). the use of custody. The court must not impose custody unless: Principles of youth sentencing are listed in s. 38(2): (a) the young person has been found guilty of a (a) the sentence must not result in greater violent offence (as defined in s. 2 of the punishment than an adult convicted of the YCJA); same offence in similar circumstances would receive; (b) the young person has previously been found guilty of an offence under s. 137 of the YCJA (b) the sentence must be similar to the sentences (failure to comply with a sentence or disposi- imposed in the region on similar young tion, i.e. breach of conditions) in relation to persons found guilty of the same offence more than one sentence and, if the court is committed in similar circumstances; imposing a sentence for an offence under (c) the sentence must be proportionate to the sess. 145(2)─(5) of the Criminal Code or riousness of the offence and the young per- s. 137 of the YCJA, the young person caused son’s degree of responsibility for it; harm, or a risk of harm, to the safety of the public in committing that offence; (d) all available alternatives to custody that are reasonable in the circumstances should be (c) the young person is guilty of an indictable of- considered, with particular attention paid to fence for which an adult can be sentenced to the circumstances of Indigenous youth; and imprisonment for more than two years, and has a history that indicates a pattern of extra- (e) subject to (c), the sentence shall be the least judicial sanctions or of findings of guilt; or restrictive one that is capable of achieving the purpose in s. 38(1), be the one most like- (d) in exceptional cases, the court may impose a ly to rehabilitate and reintegrate the young custodial sentence if the offence is indictable person into society, and promote a sense of and the aggravating circumstances would responsibility and acknowledgement of harm make a non-custodial sentence inconsistent done to victims and the community. with s. 38 of the YCJA. (e.1) if this Act provides that a youth justice court If any of s. 39(1)(a) through (c) applies, the court may impose conditions as part of the sen- must still consider all alternatives to custody that tence, a condition may be imposed only if are reasonable in the circumstances, and may not impose custody unless no alternative (or combina- (i) the imposition of the condition is nec- tion of alternatives) would achieve the purpose and essary to achieve the purpose set out principles of sentencing (s. 39(2)). A judge who in s. 38(1),

Criminal Procedure 96 imposes custody must give reasons why a non- (q) for murder, a custody and conditional super- custodial sentence would not achieve the purpose vision order (a maximum of 10 years for of youth sentencing, including (if applicable) the first-degree murder, including custody for up reasons why the case is exceptional (s. 39(9)). The to six years followed by conditional supervi- judge must consider a pre-sentence report, unless it sion, and a maximum of seven years for sec- is waived (ss. 39(6) and 40). ond-degree murder, including custody for up to four years followed by conditional super- 2. Available Sentences vision); The available youth sentences are found in s. 42(2) (r) an intensive rehabilitative custody and super- and are as follows: vision order for a maximum of two years (unless the Criminal Code maximum for the of- (a) a judicial reprimand; fence is life, in which case it must not exceed (b) an absolute discharge; three years, or the offence is first-degree murder, in which case it must not exceed (c) a conditional discharge, in accordance with 10 years, or the offence is second-degree s. 38(2)(e.1); murder, in which case it must not exceed (d) a fine to a maximum of $1,000; seven years); and (e) an order to pay compensation or damages to (s) any other conditions that the court considers another person; to be appropriate, in accordance with s. 38(2)(e.1). (f) an order to return property to another person; (g) an order to compensate any innocent pur- As indicated above, all custodial sentences under chaser of property where the court has made the YCJA include an order for supervision of the a restitution order; young person in the community following the period of custody. (h) an order to compensate any person in kind or by way of personal services; A recognizance under s. 810 of the Criminal Code (commonly referred to as a “peace bond”) is also (i) an order to perform community service; an available sanction for youth by virtue of (j) any order of prohibition, seizure or forfeiture ss. 14(2) and 20(2) of the YCJA. The Youth Justice that may be imposed under any Act of Par- Court may impose a peace bond instead of impos- liament (other than s. 161 of the Criminal ing a sentence under s. 42(2), or may impose one at Code, which involves prohibitions for of- an earlier stage in proceedings, as it does not re- fences against persons under the age of 16, quire a finding of guilt. and s. 51 of the YCJA, which requires the court to impose a mandatory prohibition [§7.09] Appeals and Reviews when the young person is found guilty of an offence referred to in s. 109 of the Criminal Code); 1. Appeals (k) probation to a maximum of two years, with Summary appeals (sentence and conviction) are conditions; filed in the Supreme Court. Indictable appeals are filed in the Court of Appeal. If an Information con- (l) an intensive support and supervision order; tains both summary and indictable offences, they (m) an order to attend a non-residential program; can be appealed together to the Court of Appeal (s. 37(6)). (n) a custody and supervision order (two-thirds custody, one-third supervision in the commu- 2. Reviews nity) to a maximum of two years (unless the offence is one for which an adult could be Two types of sentence review are available under sentenced to life imprisonment, in which case the YCJA: it shall be to a maximum of three years); (a) reviews of non-custodial youth sentences, (o) for attempted murder, manslaughter and ag- such as probation orders, under s. 59; and gravated sexual assault, a custody and super- (b) reviews of custodial sentences, under ss. 87, vision order to a maximum of three years; 94 and 98. (p) deferred custody and supervision for a term Section 59 permits the court to terminate or review not exceeding six months; non-custodial sentences on application by a young person, that young person’s parent, the Attorney

Criminal Procedure 97 General, or the provincial director. The grounds for  failure to comply with a youth sentence; such reviews are set out in s. 59(2), and can include  contraband in, or trespass upon, a youth custody the young person’s inability to comply with the centre or corrections centre; sentence. A review under this section cannot result in a more onerous sentence without the young per-  unlawfully assisting, aiding or counselling a pa- son’s consent, except if the review application is tient to leave a mental health facility; and being made because the young person breached the  trespassing on school grounds. original sentence, or if the sentence must be extended to allow the young person to complete pro- A youth can also be sentenced to not more than 90 days grams included in the sentence (s. 59(8)). custody for driving while prohibited or suspended or for contravening a protective intervention or restraining Section 87 allows a young person serving a custo- order. dial sentence to apply to the court to be moved to a less restrictive level of custody (commonly called Unlike under the YCJA, custodial sentences under the “open custody”) or to a more restrictive level of Youth Justice Act do not include a period of supervision custody (commonly called “closed custody”). The in the community. reason for applying to be moved to closed custody

would typically be to access programs that are only available there. Section 94 provides for the review of custodial sentences, which can result in the Youth Justice Court converting the sentence from custody to conditional supervision. Section 94(1) governs mandatory reviews, and requires that any youth custodial sentence of over one year must be reviewed one year after it was imposed, and at the end of every subsequent year, until its completion. If multiple sentences were imposed, then the year starts from the date the first sentence was imposed (s. 94(2)). Sec- tion 94(3) governs optional reviews of custodial sentences. It permits a young person, the young person’s parent, the Attorney General, or the provincial director to apply for a review of the young person’s sentence. If the sentence is for less than one year, the application can be made after 30 days or one-third of the sentence has elapsed, whichever is greater; if the sentence is for over a year, the application can be made after six months. The Youth Justice Court will only review the sentence where there are grounds for the review, such as a change in the young person’s circumstances (s. 94(5)). Section 98 allows the Attorney General or the provincial director to apply to convert the community supervision portion of a custody and supervision order into custody, if the court finds that there are reasonable grounds to believe that the young person will commit a serious violent offence and that the conditions of the community supervision portions of the sentence would not prevent this.

[§7.10] Provincial Statutory Offences

The Youth Justice Act, S.B.C. 2003, c. 85, governs prosecutions under provincial legislation, such as the Motor Vehicle Act and the School Act. A sentence of custody for not more than 30 days is available for the following offences:

Criminal Procedure

Alternative measures are prohibited if the per- Chapter 8 son denies participation or involvement in the offence or wants the court to deal with the matter. However, no admission, confession or Sentencing1 statement accepting responsibility for an act or omission as a condition of being dealt with by way of alternative measures is admissible in evidence against that person in any civil or [§8.01] Introduction criminal proceeding. One of the most difficult tasks judges face in a criminal When an alternative measures program is matter is imposing sentence. Many counsel spend hours, completed, the Crown directs a stay of pro- days or weeks cross-examining witnesses and arguing ceedings on the charge and no criminal record the finer points of the facts and law on the issue of guilt results. The program is likely to include volun- or innocence and, when their client is found guilty, they teer work in the community and may include spend only a short time preparing for the sentencing pro- attending a workshop or writing a letter of ceeding. Ensuring that a fit sentence is imposed is a vital apology. Counselling is not available through part of the practice of criminal law. This chapter ad- the program. dresses that practice in two parts: the sentencing hearing If the alternative measures program is not and the sentences that are available. completed, the Crown will likely continue to All section references are to the Criminal Code unless proceed with the charge and the matter will otherwise specified. proceed in the usual course to a trial, unless the accused enters a guilty plea in court. If the program has been partially completed, the [§8.02] A Sentencing Hearing—The Process Crown may determine that what was completed is sufficient and will end proceedings. Al- A sentencing hearing starts with either the admission or ternatively, the accused may ask the court to determination of guilt of the accused. Then, the Crown dismiss the charge. The court may dismiss the makes submissions and the defence follows. Each of charge if the court determines that prosecuting these aspects is explored in more detail below. the charge would be unfair having regard to the circumstances and the person’s perfor- 1. Preliminary Issues mance with respect to the alternative measures. (a) Alternative Measures (b) Determination or Admission of Guilt If the accused does not have a criminal record A sentencing hearing starts after either the and wants to admit the allegations, then before judge’s finding of guilt following a trial, or af- a plea is entered, defence counsel should ex- ter the accused pleads guilty to the charges. If plore whether the Crown will agree to approve an accused is intending to enter a guilty plea, an alternative measures program. When decid- defence counsel needs to consider several is- ing whether to refer the accused to alternative sues. measures, the Crown must be satisfied that the measure would be appropriate having regard to Before the client enters a plea, defence counsel the needs of the alleged offender, the interests must be satisfied that the person truly admits of society, and the interests of the victim. the offence and is entering the plea for appropriate reasons (for example, not to “get it over with”). Attempting to plead guilty with an explanation generally results in the plea being 1 Kasandra Cronin, QC and Sara Clouston, LaLiberté Cronin struck and counsel being embarrassed. Also, & Company, updated §8.01–§8.07 of this chapter in January defence counsel should have reviewed the 2021; John W. Conroy, QC, Conroy & Company, updated charges with the client and considered whether §8.09 in June 2017; and the Honourable Peter H. Edelmann any legal defences were available. See updated §8.08 in January 2020. Additional updates by PLTC in s. 606(1.1) for conditions that defence counsel 2019. Previously updated by Kasandra Cronin, QC (§8.01–§8.07 in 2017 and 2019); Michelle Booker, Nicole Jedlinski and Chris- should review with their client before entering tie Lusk (2014); Elizabeth Campbell and Carol Fleischhaker a plea. (2003 and annually thereafter); Jacinta Lawton (2001); Teresa Mitchell-Banks, QC (1998–1999); and John W. Conroy, QC Each person charged with an offence will re- (annually until 1997). ceive an initial sentencing position indicating whether the Crown may seek jail. This is relevant information for the legal aid application

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process. Once retained, defence counsel should The probation officer will not, and should not, discuss the Crown’s position on sentencing give an opinion about what is in their view the with the Crown before speaking to the client appropriate sentence. The probation officer can about a plea. To advise the client properly, assist the court by setting out what resources counsel will want the accused to know exactly are available to the offender in relation to the what sentence or range of sentence the Crown sentencing options. will be seeking. Defence counsel should be Defence counsel should obtain a copy of the aware that the Crown’s position on sentencing pre-sentence report before the sentencing hear- on a guilty plea prior to fixing a date of trial ing and review it carefully to ensure that it will usually be lower than after the trial date is complies with s. 721 and does not contain im- fixed. This is in recognition of the mitigating proper opinions or inaccurate facts. Defence effect of an early guilty plea and the remorse it counsel should also ask the client to review the usually shows. pre-sentence report for inaccuracies. Prior to entering a plea on behalf of a client, Defence counsel should discuss with the counsel should also find out whether the client Crown, prior to the sentencing hearing, any has other outstanding matters before the courts matters defence counsel believes are improper- in any jurisdiction. Charges from other juris- ly included in the pre-sentence report and any dictions can be “waived” into a jurisdiction for factual information that is disputed. Where the a guilty plea, in order to combine it with other Crown does not agree that the information is files. The advantage of dealing with all out- inaccurate and should be corrected, or that the standing files at once is that the “totality” prin- judge should be invited to disabuse their mind ciple should result in a lower ultimate sentence of the information, defence counsel should than many separate sentences that may be or- consider whether an objection is merited. Such dered to be consecutive. The disadvantage is an objection will give the Crown the oppor- that the Crown may argue that the large picture tunity to prove the disputed fact in the pre- shows a higher level of criminality. sentence report: s. 724(3). Absent an objection, (c) Pre-Sentence Reports the judge is entitled to consider all of the contents of the pre-sentence report: R. v. Schnei- Once the accused has entered a guilty plea or der, 2007 BCCA 560. the court finds the accused guilty, the court can order a probation officer to prepare and file a 2. Crown’s Submissions pre-sentence report. These reports are sup- posed to assist the court when imposing a sen- (a) Facts tence or when determining if the offender When a judge has determined guilt following a should be discharged (s. 721). These reports trial, the facts will already be before the court. are based on the description of the offence The court may accept as proven any infor- contained in the police report, unless the court mation disclosed at trial and any facts agreed advises the probation office otherwise. on by the Crown and the defence. If the trial In Vancouver, it takes approximately 6–8 involved a jury, the court must accept as prov- weeks to get a pre-sentence report if the of- en all express or implied facts that are essential fender is not in custody. to the jury’s verdict of guilty. The court may find that additional facts (aggravating or miti- Subsection 721(3) sets out the matters that gating) were proven at trial or the court may must be contained in a pre-sentence report, un- hear additional evidence about that fact by ei- less the court otherwise specifies. These cur- ther party. The court must be satisfied on a rently include: the offender’s age, maturity, balance of probabilities that a disputed fact ex- character, behaviour, attitude and willingness ists before it can rely on it. The party who is to make amends; the offender’s previous rec- seeking to rely on a relevant fact, including ord, including any youth record (subject to the something contained in the pre-sentence re- disclosure restrictions in s. 119(2) of the Youth port, has the burden of proof. If the Crown Criminal Justice Act); and the history of any seeks to rely on a relevant fact as an aggravat- alternative measures used and the offender’s ing factor, and the defence disputes it, the response to them. Crown must prove the fact beyond a reasona- If the offender is Indigenous, the report will al- ble doubt (R. v. Gardiner, [1982] 2 S.C.R. 368; so provide information relevant to the Gladue s. 724 (3)). If the defence seeks to rely on a analysis (Gladue is addressed later in this relevant fact as a mitigating factor, and the chapter).

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Crown disputes it, the defence must prove the (d) Law fact on a balance of probabilities. For Crown counsel the next step in the sen- When an accused enters a guilty plea, the tencing hearing is to refer to any law the Crown will read the facts into the record. The Crown thinks is relevant to the hearing. Crown and defence may also provide the court Counsel will likely want to refer to law from with an “agreed statement of facts.” two sources during a sentencing hearing: (1) If the defence disputes any facts, the Crown the Criminal Code ss. 718–718.201, which set may call evidence at the sentencing hearing to out the purposes and principles of sentencing; prove the facts in issue. The defence may and, (2) sentencing decisions (case prece- cross-examine those witnesses. If the defence dents). When referring to case precedents, intends to dispute any of the facts in the police counsel will look for those cases involving report, it is best to advise Crown so that if it is similar offences and individuals in similar cir- a point the Crown is seeking to prove, the cumstances to the offender. witnesses can be notified and appropriate court Section 718 sets out the following objectives in time can be set aside. Similarly, if the defence sentencing: chooses to call evidence at the hearing, the Crown may cross-examine the witnesses. The (a) denunciation; court may also compel any person to attend to (b) deterrence; assist the court in determining the appropriate sentence (s. 723(4)). (c) protection of the public; (b) Victim Impact Statements (d) rehabilitation of the offender; Following submissions on the facts, Crown (e) reparation to victims; and counsel will often file a victim impact state- (f) promotion of a sense of responsibility in ment (“VIS”) with the court. the offender. Section 722 outlines the content and form of a Counsel should read the decision in R. v. M. VIS. It must be in the prescribed form and may (C.A.), [1996] 1 S.C.R. 500 (known as R. v. detail the emotional and financial impact of the C.A.M.) before conducting a sentencing hear- offence on the victim. There are specific crite- ing for the first time, specifically for the dis- ria defining what information may and may not cussion of “denunciation” and how it relates to be included. For example, the victim cannot the concept of “retribution” and “moral assert unproven facts or give an opinion on blameworthiness” in sentencing. what the sentence should be. Nor should a VIS ask the court to place a value on the life of a Sections 718.01, 718.02, and 718.03 direct deceased victim greater than what is due every sentencing judges to give primary considera- deceased victim of crime (R. v. Bremner, tion to deterrence and denunciation when sen- (2000), 146 C.C.C. (3d) 59 (B.C.C.A); R. v. tencing for any offence involving abuse of a Berner, 2013 BCCA 188.). Defence counsel person under 18 (s. 718.01), for listed offences should review the form and content of any VIS against a peace officer or other justice partici- with the accused and ensure that it includes on- pant, and for animal cruelty. ly properly admissible information. The government introduced new sentencing While the VIS must be in writing, the sentenc- provisions with respect to violence against in- ing judge must permit the victim to read the timate partners and vulnerable people, as part VIS or present the VIS in any other way the of An Act to amend the Criminal Code, the court deems appropriate, if the victim requests Youth Criminal Justice Act and other Acts and (s. 722(5)). to make consequential amendments to other Acts. These provisions require the court to give (c) Criminal Record primary consideration to denunciation and de- The Crown will seek to file a criminal record terrence where the offence involved abuse for the accused if one is alleged. Defence against a vulnerable person (s. 718.04); to con- counsel should make sure that the record is ac- sider the increased vulnerability of women vic- curate before it is filed in court. Defence coun- tims, with particular attention to the sel should alert the Crown if any entries on the circumstances of Aboriginal female victims, alleged record are disputed, because the Crown when imposing a sentence in respect of an of- may seek to adjourn the hearing so that evi- fence that involved the abuse of an intimate dence can be called to prove the record. partner (718.201); and to consider violence

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against an intimate partner to be an aggravat- the leading cases with respect to how ing factor (s. 718.2(a)(ii)). Section 718.3(8) al- s. 718.2(e) should be applied, and the frame- lows the court to impose a term of work for sentencing Indigenous offenders. In imprisonment that is more than the maximum every case involving an Indigenous offender, term for the offence where an accused is con- the judge has a statutory duty, imposed by victed of an indictable offence involving vio- s. 718.2(e), to consider (1) the unique systemic lence used, threatened, or attempted against and background factors which may have their intimate partner. played a part in bringing the particular offender before the court; and (2) the types of sen- Regardless of what objectives are primary in tencing procedures and sanctions which may the given circumstances, a judge must always be appropriate because of the offender’s par- consider the objectives in light of the funda- ticular Indigenous heritage (Gladue; Ipeelee). mental principle that a sentence must be pro- The offender is not required to establish a portionate to the gravity of the offence and causal link between background factors and degree of responsibility of the offender the commission of the offence before being en- (s. 718.1). titled to have those factors considered by the Section 718.2 sets out factors that the court is sentence judge. For the defence position on In- statutorily required to treat as aggravating, indigenous offenders, see §8.02(3)(d). cluding abuse of a child or intimate partner, (f) Sentencing Position and motivations of hate or bias regarding race or sexual orientation. This is not an exhaustive The final step for the Crown is to make a sub- list of factors that may be considered aggravat- mission to the judge as to the sentence the ing. Crown deems appropriate. It is quite appropriate for the Crown to point out the salient fea- Other important sentencing considerations are tures of the offence, any aggravating or also set out in s. 718.2: mitigating circumstances, and an appropriate  Parity is the principle that a sentence sentence within the range suggested by the should be similar to sentences imposed case law. on similar offenders for similar offences Sometimes (usually if the Crown and the de- in similar circumstances: 718.2(b). fence have been negotiating before the sen-  The totality principle says that where tencing hearing) Crown and defence counsel sentences are imposed consecutively, may agree on the appropriate disposition. the combined sentence should not be There is a difference in the legal implications unduly long or harsh: 718.2(c). A sen- of a formal joint submission and a case where tence should not exceed the overall cul- the Crown suggests a range and defence agrees pability of the offender, and may offend that is the appropriate range. Where counsel the totality principle if it is substantially have negotiated a joint submission for a partic- above the normal level of a sentence for ular sentence, they should advise the court. the most serious of the individual of- While sentencing is ultimately a function of fences involved, or its effect is crushing the judge, and the court is not bound by any- and not in keeping with the offender’s thing agreed to by counsel, a court should not record and prospects: R. v. M.(C.A.), depart from a joint submission on sentence un- [1996] 1 S.C.R. 500. less the proposed sentence would bring the administration of justice into disrepute or  An offender should not be deprived of would otherwise be contrary to the public in- liberty if less restrictive principles may terest (R. v. Anthony-Cook, 2016 SCC 43). be appropriate (also known as the principle of restraint): s. 718.2(d). (g) Ancillary Orders  All available sanctions other than im- The Crown may seek ancillary orders prisonment that are reasonable in the appropriate to the offence, potentially circumstances should be considered for including a firearm prohibition (ss. 109, 110); all offenders, with particular attention to forfeiture of weapons and ammunition (s. 491); the circumstances of Indigenous offend- a DNA order (s. 487.051); a prohibition ers: s. 718.2(e). preventing access to children (s. 161); or a SOIRA order concerning the Sex Offender (e) Gladue Information Registration Act (s. 490.012). See R. v. Gladue, (1999), 133 C.C.C. (3d) 385 §8.05–§8.07. (S.C.C.) and R. v. Ipeelee, 2012 SCC 13, are

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3. Defence Submissions  the client’s full correct name, age, and date and place of birth; (a) Facts  the client’s marital status, the name Defence counsel must consider the facts upon of the client’s spouse and their oc- which the sentence will be based because there cupation, and the names and ages of are implications beyond just the sentence. For all dependants; example, if the offender is imprisoned, the details of the offence and the offender will gen-  the client’s education and training erally be given to the institution. Several certifications; decisions affecting the offender during the sen-  the client’s occupation, employment tence may be based on those details. Initially, circumstances and employment his- the offender will be classified to maximum, tory (also relevant to ability to pay a medium or minimum institutions, and case fine or make restitution); workers will select facts from the materials provided and put them into reports to others  the length of time that the client has who will make decisions about the offender. lived or worked in the community Ultimately, a parole officer or other case and their citizenship status; and worker will consider much of the material pro-  the client’s physical and mental vided when preparing reports that will be for- health. warded to provincial corrections officials or the Parole Board of Canada. These decision- Counsel may also want to obtain consents makers will usually accept the facts provided from the client for third parties and insti- in the documentation and may rely on the facts tutions to release medical, school, tax and to decide on the liberty of the offender. Psy- probation records. chiatrists, psychologists and other profession- (ii) Character Evidence als will rely on these facts when assessing offenders and expressing their opinions. In Evidence of good character may be very some cases, an offender may do more time in important to the judge when determining prison because insufficient attention was spent an appropriate sentence. Counsel can in- on the details of the facts at the outset. terview the family of the accused, friends, neighbours, business associates and em- See §8.02(2)(a) with respect to disputes and ployers to find out about the client’s agreements regarding the facts. background. Counsel should ensure that (b) Offender’s Circumstances the witnesses themselves are of good character and are credible and impressive. In order to explain the offender’s circumstanc- On sentencing, specific examples of the es, defence counsel will want to consider good work and conduct of the offender providing the court with detail as to the of- are admissible and helpful to the judge fender’s background, present character, and when assessing the overall character of any criminal record that exists. the offender. Counsel may call witnesses, A Provincial Court judge may hear dozens of or file letters obtained from employers sentencing submissions each day. Defence and character references. The letters are of counsel’s role is to help the judge see the client greater weight where the authors make as an individual in a comprehensive yet con- clear they are aware of the conviction. cise way. Remember this when obtaining in- Defence counsel should vet and provide formation from the client. these materials to Crown in advance. (i) Client’s Background (iii) Criminal Record It is useful for defence counsel to develop Counsel should review the offender’s past a standard Client Information Form that is criminal record, if any, and obtain not on- completed at the first interview with the ly the date, place and description of prior client and is kept up to date. If the client offences, but also the penalties imposed has a sentencing hearing, the lawyer will and if the client pled guilty or was found have the necessary facts about the client guilty after trial. Knowing the circum- ready in a form that the lawyer is familiar stances of past offences is also important with. to address aggravating or mitigating circumstances. A complete analysis of a past Defence counsel should obtain details that include the following:

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criminal record can be extremely helpful An effective practice is to provide the court to a sentencing court. with the current leading Supreme Court of Canada or BC Court of Appeal decision deal- Defence counsel looking at the client’s ing with the applicable sentencing principles in criminal record should ask the following: the type of case before the court: for example,  Is the record accurate? theft from an employer or break and enter of a dwelling place. Then, if you can find recent  If there are previous convictions, case law from British Columbia dealing with how long has it been since the last circumstances as close to your client’s as pos- one, what were the circumstances of sible, provide the court with only those cases. the offences, and how does the cli- If they are from the BC Supreme Court or ent explain previous convictions? Court of Appeal, so much the better.  If the offences were similar, what If the accused was detained, then counsel were the sentences for those offenc- should know the exact time spent in pre-trial es? If the previous offences were of custody. If a custodial sentence is to be im- an entirely different nature, might posed, the judge will generally grant 1.5 days that affect sentencing? credit for every day of pre-sentence custody  Has the accused made any attempt served, provided the accused is not disqualified since that time to rehabilitate? under s. 719(3.1), and provided the Crown does not seek to rebut the inference that the ac- (c) Sentencing Position and Rehabilitation Plan cused would have obtained early release: To formulate a sentencing position and prepare s. 719; R. v. Summers, 2014 SCC 26. Credit for submissions, defence counsel will need to get pre-sentence custody is discussed in more de- details about the offender and the offence(s), tail in §8.04(19). analyze the situation, isolate the relevant prin- In some cases, it may also be important to ciples of sentencing in the circumstances of the ensure that the court knows of the various case, and organize the facts, circumstances and programs and facilities available to assist it in relevant principles into a logical and cohesive tailoring the sentence to fit a particular argument or submission on sentence. individual. Although judges receive some It is important to canvass past sentencing cases information from the Corrections Branch, the involving similar offences and offenders of Correctional Service of Canada and others, similar background. Although counsel will generally the court depends on Crown and rarely find an identical case, a review of the defence counsel to provide this information cases will determine the appropriate range of and to update the court as to the current sentencing. This will help when arguing the programs, facilities and options available. range within which the sentence should fall. Provide the court with concrete solutions and Section 718.2 requires a sentencing court to sentencing suggestions. When the offender has consider, among other factors, the principle a drug addiction or there are other factors for that a sentence should be similar to sentences which a rehabilitation plan is appropriate, put a imposed on similar offenders for similar of- plan together and be able to show the court it is fences committed in similar circumstances. in place, for example, by arranging a bed at a Counsel should consider consulting sources for treatment centre. sentencing cases and ranges, such as Nadin- Section 720(2) allows an offender, with the Davis’s Canadian Sentencing Digest, available consent of the Crown and the court, to delay on Westlaw CriminalSource and through sentencing in order to attend an approved Courthouse Libraries BC, and sentencing cases treatment program. The Drug Treatment Court available through Quicklaw. Quicklaw also is such an approved program, and may be an contains helpful secondary sources such as option for offenders whose crime cycles are Ruby, Chan and Hasan’s Sentencing, 8th edi- motivated by drug use and who wish to engage tion (Toronto: LexisNexis, 2012). in treatment. If an offender convicted of an of- Try to avoid referring the court to a raft of fence under the Controlled Drugs and Sub- cases with limited applicability to your client’s stances Act, S.C. 1996, c. 19 (the “CDSA”) situation. A busy Provincial Court judge will successfully completes this program, the court not appreciate having to wade through a two- is not required to impose the minimum sen- inch thick binder of case law at a sentencing tence for the offence (s. 10(4) and (5) of the hearing involving shoplifting. CDSA).

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In most cases, preparation for sentencing cases involving an Indigenous offender. See commences from the first interview with the §8.02(2)(e). client. When the accused intends to plead The Supreme Court of Canada in R. v. Gladue, guilty and the causes of the criminality can be [1999] 1 S.C.R. 688, examined s. 718.2(e) and identified at an early stage, encourage the cli- determined that the sentencing judge must con- ent to start some rehabilitative action, such as sider the unique systemic and background fac- alcohol and drug counselling or psychological tors that may have contributed to bringing the or psychiatric treatment, before the sentencing Indigenous offender before the court. Judges hearing. These actions help to demonstrate the must take judicial notice of the broad systemic offender’s commitment to rehabilitation and to and background factors affecting Indigenous show that any danger to the public can be con- people generally, and any additional case- trolled by a non-custodial sentence. Up-to-date specific information can come from counsel or progress reports concerning such rehabilitative a pre-sentence report with a Gladue compo- measures should be filed with the court at the nent. The defence may also obtain a standalone time of sentencing. Periods of time on bail or “Gladue report” (by hiring a report writer pri- prior non-custodial sentences that have been vately, requesting legal aid funding for a re- completed satisfactorily should be brought to port, or asking the court to order a Gladue the attention of the court to point to the offend- report) or might make Gladue submissions er’s ability to comply with a supervisory sen- without the benefit of a report. tence and to show that a sentence of incarceration is unnecessary. Practically, when counsel is trying to formulate an appropriate and persuasive submission on Defence counsel must bring to the court’s at- sentence, counsel should be aware of the many tention particulars of any reasonable chance of resources available to Indigenous offenders. rehabilitation outside of custody, raise any rel- For example, the Native Courtworker and evant mitigating circumstances (which may in- Counselling Association of British Columbia is clude an individual’s mental health: R. v. an excellent resource and has offices through- Badhesa, 2019 BCCA 70) or collateral conse- out British Columbia. Native Courtworkers as- quences (R. v. Suter, 2018 SCC 34), urge upon sist people through the court system on a daily the court the least restrictive reasonable alter- basis. They provide an invaluable service to native sentence in the circumstances, and en- both the offender and the courts. Native sure that the sentence is fit and just and within Courtworkers can also help find places for In- the normal range in accordance with the prin- digenous offenders in treatment centres and ciples of sentencing and relevant past applica- counselling programs designed specifically for tions. offenders who are Indigenous. One section of the Code that can help defence Clients who are Indigenous and are pleading counsel to persuade the court to impose a non- guilty to a criminal offence may be able to custodial sentence is s. 718.2(d). This section have their case heard in one of the BC’s Indig- states that an offender should not be deprived enous Courts (also called First Nations Courts of liberty if less restrictive sanctions may be or Gladue courts) for sentencing. These courts appropriate in the circumstances. For example, approach sentencing from the perspective of a conditional sentence involving some form of restorative justice. There are Indigenous “house arrest” may be appropriate as part of a Courts located in Duncan, Kamloops, Merritt, sentence. New Westminster, North Vancouver, Prince (d) Indigenous Offenders George, Williams Lake, and Hazelton (opening in Spring of 2021). Indigenous Justice Centres, When the client is an Indigenous person, located currently in Merritt, Prince George, counsel should be aware of additional and Prince Rupert, may also assist with an of- considerations that apply on the sentencing. fenders’ reintegration and restorative options. Section 718.2(e) requires the court to consider all available sanctions other than imprisonment for every offender, but judges must pay [§8.03] Preparing Submissions on Sentence particular attention the circumstances of offenders who are Indigenous. Section There are resources to help counsel address the factors in 718.2(e) is a remedial provision which was sentencing and prepare to make submissions. For introduced to address the overincarceration of example, see the Provincial Court’s “Sentencing Fact Indigenous people in Canada, and applies in all Sheet,” the Law Society’s “Sentencing Procedure” in the Practice Checklists Manual, and the CLE publication

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“Sentencing Preparation Check Sheet” (November BCCA 91). However, a record does not pre- 2009), prepared by the Honourable Judge Joanne clude the granting of a discharge. Challenger of the BC Provincial Court and Ursula Botz, (b) The Effect of an Absolute Discharge Crown Counsel. When the offender receives an absolute dis- [§8.04] Available Sentences charge, the offender is deemed “not to have been convicted” (ss. 730(1) and (3)). The following paragraphs describe the sentences that are One year following an absolute discharge, the available under the Criminal Code. These sentences are record of the accused’s conviction is to be de- listed in approximate ascending order of severity. leted from the automated criminal conviction records retrieval system kept by the police. No 1. Absolute Discharge department or agency of the Government of Canada (including the police) can disclose the (a) The Imposition of a Discharge existence of the record or discharge without A discharge, either absolute or conditional, can the prior approval of the Solicitor General of be imposed for either summary conviction Canada (s. 6.1 of the Criminal Records Act, offences or indictable offences. A discharge R.S.C. 1985, c. C-47 (the “CRA”)). Exceptions may be granted for offences under the Code, as are made for disclosure to police enforcement well as for provincial offences (R. v. Trow agencies under limited circumstances (s. 6.2 of (1977), 38 C.C.C. (2d) 229 (B.C.S.C.)). A dis- the CRA). charge may be granted even if the offender has Despite these provisions, an absolute discharge previously completed a diversion program (R. will often show on the records retrieval system v. Drew (1978), 45 C.C.C. (2d) 212 for up to 3 years. U.S. customs officers may (B.C.C.A)). have access to these records, and offenders A discharge (either absolute or conditional) sentenced to discharges may be turned away at can only be imposed if two conditions exist: the border.  the offence has no minimum punish- The CRA provisions respecting record suspen- ment; and sions apply only to offenders who have been “convicted” of an offence. Offenders who have  the offence has a maximum punishment been discharged are deemed not to be “con- of less than 14 years imprisonment. victed” pursuant to s. 730(3) of the Criminal (s. 730; R. v. Bradshaw (1975), 21 C.C.C. (2d) Code, and therefore are not part of the pardon 69 (S.C.C.)) system. When these statutory requirements have been 2. Conditional Discharge met, a sentencing judge may impose a discharge (absolute or conditional) if: (a) The Imposition of a Discharge  the discharge is in the best interests of See §8.04(1), “Absolute Discharge” for when a the accused; and conditional discharge may be imposed.  the discharge is not contrary to the pub- (b) The Effect of a Conditional Discharge lic interest. When a sentencing judge directs that an of- (s. 730; R. v. Fallofield (1973), 13 C.C.C. (2d) fender be discharged conditionally, the offend- 450 (B.C.C.A.)) er is placed on probation for a set period of time. Once the probation order expires and the For example, if the offender must support a offender has abided by the conditions of the family and needs to travel outside the country probation order, the conditional discharge be- for work, it would be in the offender’s interests comes absolute. to receive a discharge. A discharge may not be appropriate for violent crimes, including Three years after an offender has been granted crimes involving violence against women (R. a conditional discharge, the criminal record is v. Begley, 2019 BCCA 331), but discharges to be deleted from the automated criminal have been granted in some such cases. conviction records retrieval system kept by the police. No department or agency of the The fact that an offender has previously been Government of Canada (including the police) granted a discharge is a relevant consideration can disclose the existence of the record or at the time of sentencing (R. v. Tan (1974), 22 discharge without the prior approval of the C.C.C. (2d) 184 (B.C.C.A.); R. v. Small, 2001

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Solicitor General of Canada (s. 6.1 of the (d) Breach of a Probation Order CRA). There are exceptions for disclosure to A breach of a probation order occurs when an police enforcement agencies under limited offender who is bound by a probation order circumstances (s. 6.2 of the CRA). fails or refuses to comply with a condition of (c) Revoking a Conditional Discharge the probation order without reasonable excuse (s. 733.1). A conditional discharge may be revoked and a conviction substituted against an offender in Section 733.1 sets out the penalty for breach of two situations: a probation order. The Crown may proceed either by indictment (maximum penalty of 4  the offender is convicted of a new of- years), or summarily. fence while on the probation order; or The Crown must prove all required elements  the offender is convicted of a breach of of the offence—the existence of the probation any of the conditions of the probation order as well as the circumstances that gave order. rise to the breach. Once the existence of the breach is proven, the offender may provide a Once the conditional discharge is revoked, the reasonable excuse. court may enter a conviction and impose a sentence (s. 730(4)). The trial for this offence can be held anywhere in the province where the offender is arrested 3. Probation Orders or found. If the arrest occurs outside the province in which the original order was made, no (a) Imposition of a Probation Order proceedings can be instituted in that province The court may impose a probation order either without the consent of the Attorney General of in combination with a suspended sentence (if the province in which the offender is arrested. there is no minimum punishment), or in addition to a sentence of a fine or imprisonment. 4. Suspended Sentence and Probation Order (Those sentences are described more below.) (a) The Imposition of a Suspended Sentence and The primary purpose of a probation order is to Probation Order secure the good conduct of the convicted per- The court may impose a “suspended sentence” son (R. v. Dashner (1973), 15 C.C.C. (2d) 139 in combination with a probation order. A “sus- (B.C.C.A.)). pended sentence” means that the court sus- The probation order may bind the offender for pends the passing of sentence and directs that up to 3 years after it comes into force the offender be released on conditions as pre- (s. 732.2(2)(b)). scribed in the probation order (s. 731). A suspended sentence is not available when the Before making a probation order, the court offence carries a minimum penalty must consider whether s. 109 or 110 of the (s.731(1)(a)). Code (a firearms prohibition) is applicable (s. 731.1(1)). (b) When a Probation Order Pursuant to a Suspended Sentence Comes into Force (b) Conditions and Variations of Probation Orders A probation order made pursuant to a suspend- Subsection 732.1(2) sets out the compulsory ed sentence comes into force on the day it is conditions of a probation order. Subsection made (s. 732.2(1)(a)). 732.1(3) provides for optional conditions. When an offender is subject to a probation or- The offender, the probation officer or the der and is then convicted of another offence Crown may apply to the court that made the (including the offence of breach of probation), probation order to vary the optional conditions or is imprisoned in default of payment of a fi- in the order (s. 732.2(3)). ne, the probation order continues in force, ex- (c) The Transfer of Probation Orders cept insofar as the sentence renders it The court may transfer a probation order to impossible for the offender to comply with the another area within the province or outside the probation order (s. 732.2(2)(a)). province (s. 733). A transfer outside the prov- (c) Breach of a Probation Order that Is Part of a ince requires the consent of the Attorney Gen- Suspended Sentence eral of the province in which the order was made. When a probation order is made pursuant to a suspended sentence, the offender must be warned that if they breach the probation, they

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may be charged with a separate offence of (b) Changes to Fines Imposed on Individuals breach of probation, and may be brought back before the court and sentenced on the original Following the imposition of a fine, the court offence (s. 732.1(5)). Any failure by the court may hear an application, by or on behalf of the to comply with the obligations as set out in offender, to change any term of the order ex- s. 732.1(5) does not render the probation order cept the amount of the fine (s. 734.3). invalid. The time to pay may be extended by subse- Following a breach, the originating court may quent application, even after the time to pay revoke the suspended sentence where: has expired and a warrant of committal has been issued (R. v. Yamelst (1975), 22 C.C.C.  an offender bound by probation order is (2d) 502 (B.C.S.C.)). convicted of another offence (including a breach of that probation order under (c) Default of Payment s. 733.1); and An offender defaults where payment of the fi-  no appeal has been taken on that convic- ne has not been paid in full by the time set out tion, or an appeal on that conviction has in the order. been taken and has been dismissed or Where an offender defaults on payment, the has been abandoned (s. 732.2(5)). provincial or federal government may refuse to Following the hearing the court may: issue or renew a license, permit, or other similar instrument until the fine is paid in full  revoke the probation order and impose (s. 734.5); the Crown may file and enter the any sentence that could have been im- order as judgment in the amount of the fine posed initially if the sentence had not plus costs in any civil court in Canada that has been suspended; jurisdiction for that amount, and it may then be  make such changes to the optional con- enforced (s. 734.6); or the court may impose a ditions that it deems desirable; or period of imprisonment under s. 734(5).  extend the period for which the (d) Warrant of Committal probation order is to remain in force, When time has been allowed for payment of a provided it does not exceed 1 year fine, the court can only issue a warrant of (s. 732.2(5)(d) and (e)). committal in default of payment of the fine if Revocation applications are rare. (1) the full time allowed for payment has expired; and (2) the court is satisfied that the 5. Fines method of refusing to issue or renew a license or permit or other similar instrument or civil Section 734 outlines the imposition of fines on in- proceedings are not appropriate, or the offend- dividuals. Section 735 outlines how fines are im- er has without reasonable excuse refused to posed on organizations. Fines are imposed rarely. pay the fine or discharge it under the fine op- (a) Imposition of a Fine on an Individual tion program (s. 734.7). The court must be satisfied, on a balance of If no time has been allowed for payment of the probabilities, that the offender is able to pay fine and the offender defaults, the court must the fine. When the court imposes a fine, it must provide reasons for the immediate committal meet the requirements in 734.1–734.2, which in the warrant (s. 734.7(2)). require that the amount and timeline of pay- (e) Reductions by Part Payment ment or partial payment be stated; that the offender has a copy of the order; and that the The default term of imprisonment can be re- offender understands the order, consequences duced proportionately by part payment of the of non-compliance, options of payment includ- fine, whether the payment was made before or ing the fine option program in s. 736, and way after the execution of a warrant of committal. to apply for a change in the terms of the order However, once the warrant of committal is ex- under s. 734.3. ecuted, no amount offered in part payment of the fine will be accepted unless that amount is The probation order is not rendered invalid just sufficient to secure a reduction of the sentence because the court fails to advise the offender of of one day or a whole number of days the information contained in s. 734.2(1) (s. 734.8). (s. 734.2(2)).

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(f) Fines on Organizations (a) Restitution as Part of a Probation Order Any fine imposed on an organization will be at Section 732.1(3)(h) provides that the court the discretion of the court, unless otherwise may order the offender to comply with such provided by law (s. 735(1)(a)). other reasonable conditions as the court considers desirable. This subsection is commonly Fines imposed on organizations convicted of used to direct the offender to pay restitution to summary offences cannot exceed $100,000 the victim of the offence as part of the proba- (s. 735(1)(b)). tion order. (g) Victim Surcharge Failure to pay on time could result in a breach Section 737 of the Criminal Code requires that of probation charge being laid. In order to en- an offender convicted or discharged of an of- sure that this condition is enforceable, the res- fence under the Criminal Code or the Con- titution amount must be made payable before trolled Drugs and Substances Act must pay a the probation order expires. victim surcharge (s. 737). The amount of the (b) Restitution as a Stand-Alone Order surcharge is 30% of any fine imposed for the offence; or, if no fine was imposed, then $100 A stand-alone restitution order under s. 738 is for an offence punishable by summary convic- an entirely separate order, which may be made tion and $200 for an offence punishable by in- alone or in addition to any other punishment dictment. This section was recently amended imposed on the offender. It permits the court to in response to R. v. Boudreault, 2018 SCC 58, order that on offender compensate a victim for where the court struck down the victim sur- damage or destruction of property as a result of charge regime as unconstitutional. The recent the commission of a criminal offence. It may changes (in force as of July 2019) re-enact the be made whether the offender is convicted or victim surcharge regime but provide the court discharged of the offence, and at the court’s in- with the discretion to waive the surcharge in itiative or on application by the Crown. appropriate cases. The court can waive the sur- Where a stand-alone order is not paid, the or- charge if satisfied that the surcharge would der may be filed as a civil judgment in any civ- cause the offender undue hardship or would be il court in Canada. Essentially, s. 738 relieves disproportionate to the gravity of the offence the victim of a criminal offence from having to or the degree of responsibility of the offender. sue the offender to be compensated for their damages. Should the offender later come into 6. Fine Plus Probation Order funds, the judgment may be enforced and the A fine and a probation order may be imposed to- funds collected. gether (s. 731(1)(b)). 8. Conditional Sentence Order of Imprisonment 7. Restitution (a) Nature of Conditional Sentence Order A restitution order requires the offender to pay A conditional sentence order (“CSO”) is a sen- money to the victim of a crime for the victim’s fi- tence of imprisonment served in the communi- nancial losses resulting from the crime. The ra- ty instead of in an institutional setting. For tionale for restitution orders is that they support the certain offences, a court can impose a CSO in- principle of general deterrence. Before making any stead of requiring that the offender serve a tra- restitution order the court must determine the exact ditional jail sentence. amount to be paid and to whom. Therefore, counsel should come to court with the precise amount to be A court should only impose a CSO when a repaid, to whom, and an address for forwarding sentence of imprisonment of less than 2 years funds. is appropriate. The court cannot impose a CSO when the offence is punishable by a minimum Restitution is possible by two methods: term of imprisonment.  as part of a probation order under CSOs include both punitive and rehabilitative s. 732.1(3)(h); or conditions (distinguishing them from  as a “stand alone” order under s. 738. probationary measures, which are primarily rehabilitative). The punitive conditions ought These are two very different orders with very dif- to restrict the offender’s liberty. House arrest ferent consequences to the offender and victims. should be the norm, not the exception (R. v. Proulx, [2000] 1 S.C.R. 61). In practice,

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onerous curfews are often employed to restrict (i) breaking and entering a place the offender’s liberty. other than a dwelling-house (s. 348(a)(e)); The CSO provisions in s. 742.1 are intended to reduce reliance on incarceration and to in- (j) being unlawfully in a dwelling- crease resort to principles of restorative justice house (s. 349); and in sentencing (R. v. Proulx, [2000] 1 S.C.R. 61. (k) arson for fraudulent purpose Note the court’s similar assertions regarding (s. 435). attempts to reduce institutional incarceration for Indigenous offenders in R. v. Gladue, Where a CSO is not specifically excluded, its [1999] 1 S.C.R. 688). availability is governed by whether community safety would be endangered by the offender (b) Pre-Conditions for Imposition of CSO serving the sentence in the community The Safe Streets and Communities Act (the (s. 742.1(a)), whether the imposition of a CSO “SSCA”), otherwise known as the Omnibus would be consistent with the fundamental pur- Crime Bill, was passed March 12, 2012. The pose and principles of sentencing as found in SSCA provides mandatory minimums for a s. 718–718.2 (s. 742.1(a)), and the general number of drug related and sexual assault re- principles set out in R. v. Proulx. Note that R. lated offences, and restricts the use of CSOs. v. Sharma, 2020 ONCA 478, a recent case, held the restrictions on the availability of Pursuant to the amended s. 742.1, for offences CSOs limit the remedial impact of 718.2(e) for committed on or after November 20, 2012, Indigenous offenders. CSOs are not available for any of the following: Where denunciation and general deterrence are the primary sentencing principles, the court is  any offence punishable by a minimum more likely to impose incarceration in an term of imprisonment; institutional setting. However, conditions of a  all offences prosecuted by indictment CSO may be crafted that will satisfy these for which the law prescribes a maximum principles. As with probation orders, the court sentence of 14 years or life, including is required to provide the offender with a copy manslaughter, aggravated assault, arson of the CSO. The court must take reasonable and fraud over $5,000; measures to ensure that the offender understands the CSO (s. 742.3(3)). The court’s  offences prosecuted by indictment and failure to comply with these obligations does subject to a maximum sentence of im- not render the CSO invalid (s. 742.3(4)). prisonment of 10 years, that: (c) Effect of Pre-Sentence Custody (a) resulted in bodily harm; A CSO cannot become available to an offender (b) involved the import/export, traf- who otherwise deserves a penitentiary term ficking and production of drugs; or (more than 2 years) simply because the offend- (c) involved the use of a weapon; and er has spent enough time in pre-sentence custody to reduce the penitentiary term to a  the following offences when prosecuted sentence within the range required for a CSO by indictment: (less than 2 years). The CSO provisions were (a) prison breach (s. 144); not designed for offenders for whom a penitentiary term is appropriate (R. v. Fice, 2005 (b) criminal harassment (s. 264); SCC 32). (c) sexual assault (s. 271); (d) Combining Jail and CSOs (d) kidnapping (s. 279); A court cannot impose a “blended” sentence of (e) trafficking in persons—material a conditional sentence and custodial impris- benefit (s. 279.02); onment for a single offence (R. v. Robertson, 2002 BCCA 579; R. v. Fisher, 2000 CanLII (f) abduction of person under the age 4948 (Ont. C.A.)). However, where an offend- of 14 years (s. 281); er is sentenced for more than one offence, the (g) motor vehicle theft (s. 333.1); court may blend a conditional sentence with custodial imprisonment, provided the com- (h) theft over $5,000 (s. 334(a)); bined sentence does not exceed 2 years less a day, the conditional and custodial sentences

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are not served concurrently, and the require- (h) Electronic Monitoring Program ments of s. 742.1(b) are satisfied at least with The Electronic Monitoring Program (the respect to one of the offences (R. v. Ploumis “EMP”) provides a means of monitoring an in- (2000), 150 C.C.C. (3d) 424 (Ont. C.A.)). dividual who is on house arrest as part of a (e) CSOs, Fines and Probation CSO. It is available in the most densely popu- lated parts of British Columbia. Often a CSO will be followed by a period of probation up to a maximum of 3 years Under the EMP, a bracelet transmitter is (s. 732.2(1((c)). Where a CSO and probation placed on the ankle of the offender and special are ordered in relation to the same offence, no equipment that communicates with the Correc- fine may be imposed (this would offend the tions Branch computer is placed on the offend- “two out of three” rule). However, where the er’s home telephone. A curfew is established offender is convicted of more than one of- with clear start and finish times during which fence, courts have imposed conditional sen- the offender is required to remain in their resi- tences, along with probation and a fine (R. v. dence. If the offender leaves the designated Ladha, [2001] O.J. No. 5818 (S.C.J.); R. v. residence at an unscheduled time, the equip- Krolyk, [1997] O.J. 4207 (Gen. Div.)). ment alerts the Corrections Branch computer and the authorities then take appropriate steps. The Code requires that a conditional sentence, standing alone, be consistent with the funda- To be accepted into the program, offenders mental purpose and principles of sentencing. should meet criteria including the following: Where a conditional sentences does not other-  pose no threat to the safety of the com- wise satisfy that pre-condition, it cannot be munity or to others in the home; supplemented with a fine (R. v. Heidarian, 2007 BCCA 288; leave to appeal refused, 2007  have no history or pattern of violence; S.C.C.A. No. 69; R. v. Joe, 2005 YKCA 9  be serving a sentence of less than 2 (Y.T.C.A.). years; (f) No Burden to Show CSO Is Inappropriate  be willing to obey the rules of the pro- There is no burden on the Crown to establish gram and accept its restrictions; and that an offender should not receive a CSO.  have a home situation suitable for the Thus, when considering whether to impose a program. CSO, the court will likely consider all of the evidence, regardless of which party ultimately Defence counsel, before making submissions tenders the evidence. In practical terms, it will on sentence, should request an adjournment to generally be the offender who is best situated assess the suitability of electronic monitoring. to convince the court that a CSO is indeed ap- The British Columbia Corrections Branch de- propriate (R. v. Proulx, [2000] 1 S.C.R. 61). velops policy and decides who will be placed on electronic monitoring, but only after of- (g) Compulsory and Optional Conditions fenders are carefully assessed for technical The compulsory conditions of a CSO in suitability. s. 742.3(1) are similar to those for a probation (i) Changing Optional Conditions of a CSO order under s. 732.1(2). Some of the optional conditions for a probation order in s. 732.1(3), Changes to the optional conditions of a CSO such as reporting and remaining within the ju- may be proposed by any of the following: risdiction, are compulsory for CSOs.  the CSO supervisor (s. 742.4(1)); The optional conditions for a CSO are also  the offender (s. 742.4(5)); or similar to those for a probation order. Howev- er, the court can order the offender to attend a  the Crown (s. 742.4(5)). treatment program approved by the province, The person proposing the change must give and does not require the offender’s agreement notice to the offender, the Crown, and the (s. 742.3(2)(e)). court of the proposed change and the reasons Further, the other reasonable conditions im- for it. Within 7 days of receiving that notice, posed on a conditional sentence order are sup- the offender or the Crown may ask the court to posed to be designed to secure the good hold a hearing to consider the proposed conduct of the offender and to prevent the of- change. Alternatively, the court may, on its fender from repeating the same offence or any own initiative, order that a hearing be held to other offences (s. 742.3(2)(f)). consider the change (s. 742.4(2)).

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The hearing regarding the proposed change The CSO supervisor’s report is admissible in must be held within 30 days after the court evidence if the Crown has given the offender receives the notice (s. 742.4(2)). These types reasonable notice and a copy of the report of hearings can be held in chambers (s. 742.6(5)). (s. 742.4(6)). With leave of the court, the offender may re- At such a hearing, the court can (s. 742.4(3)): quire the supervisor or any witness to attend at the hearing for cross-examination (s. 742.6(8)).  approve or disapprove the change; and However, often at CSO breach hearings, no  make any other changes to the optional witnesses are called—the Crown simply files conditions it deems appropriate. the report, the offender admits the breach and may testify as to a “reasonable excuse” for the If the CSO supervisor is the one seeking the breach—and the court reevaluates the CSO. change, and the Crown or defence does not request a hearing after receiving notice of the After a hearing of the allegation of breach of a proposed change, or the court does not order a CSO (s. 742.6): hearing within the 7 days, the proposed change  the allegation may be withdrawn; takes effect automatically 14 days after the court receives the notice. The supervisor is re-  the allegation may be dismissed; quired to notify the offender and file proof of  the court may find that the offender had the notice with the court (s. 742.4(4)). a “reasonable excuse” for the breach; or (j) Transfer of CSO  the court may find that offender has, on When an offender moves to a different territo- a balance of probabilities, breached the rial division from the one that made the CSO, CSO without “reasonable excuse.” the court that made the CSO can transfer the When the judge is satisfied, on a balance of CSO to a court in that other territorial division probabilities, the onus of which is on Crown to that would have jurisdiction to make the CSO prove, that the offender has breached the con- in the first place. That latter court can then en- ditional sentence order without reasonable ex- force that CSO in all respects as if it was the cuse, the judge can do any of the following court that made the CSO (s. 742.5(1)). The At- (s. 742.6(9)): torney General of the province in which the CSO was made must consent (s. 742.5(1.1)).  take no action; (k) Breach Hearing for CSO  change the optional conditions; When an offender allegedly breaches a condi-  suspend the CSO and order the offender tion of their CSO, the offender attends a hear- to serve part of the unexpired sentence ing. Usually the judge who imposed the CSO in custody, and order that the CSO re- presides at the CSO breach hearing and deter- sume on release from custody; or mines whether the offender did indeed breach  terminate the CSO and direct the of- the CSO. fender be committed to custody until the Proceedings for hearing a breach allegation expiration of the sentence. must commence within 30 days or as soon as is When the offender breaches a condition with- practicable after the offender’s arrest on the out reasonable excuse, there should be a pre- breach or issuance of a warrant or summons sumption that the offender will serve the (s. 742.6(3)). remainder of their sentence in jail (R. v. Before the hearing, the Crown files with the Proulx, [2000] 1 S.C.R. 61; R. v. Leighton, court a written report, prepared by the offend- 2007 BCCA 42). er’s CSO supervisor, outlining the circum- (l) Suspension of CSO stances of the alleged breach. The CSO supervisor’s report must include signed wit- The running of a conditional sentence is sus- ness statements (s. 742.6(4); R. v. McIvor, pended (“the clock stops ticking”) from the 2006 BCCA 343). Subject to a waiver by the time the warrant or summons issues or the of- offender, failure to comply with this require- fender is arrested on the breach until the court ment will render the supervisor’s report inad- determines if the offender has breached a con- missible under s. 742.6(5), and the court dition (s. 742.6(10)). cannot rely on it to find a breach. When the offender is detained in custody pending the hearing of the breach allegation, the

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CSO starts to run again on the date of the de-  the nature of the offence; tention order (s. 742.6(12)).  the circumstances surrounding its When the offender is not detained in custody commission; and pending the hearing of the breach allegation,  the availability of appropriate accom- the CSO will not start to run again, but the modation to ensure compliance with conditions of the CSO will continue to apply the sentence. (s. 742.9(11)). During times when the offender is not serving (m) Credit Towards CSO Pending Breach Hearing their sentence in jail, the offender must comply An offender may receive some credit for the with the conditions prescribed in a probation time between when the warrant or summons order (s. 732(1)(b)). issues or the offender is arrested on the breach (b) Changes to an Intermittent Sentence of and when the court determines if the offender Imprisonment has breached a condition. Such credit can be obtained whether the offender was in or out of An offender serving an intermittent sentence custody pending the breach hearing, and can, on notice to the prosecutor, apply to the whether the court found or did not find that the court that imposed the sentence to allow the offender breached the CSO. However, the de- offender to serve the sentence on consecutive tention of the offender, and the determination days instead of intermittently (s. 732(2)). at the breach hearing, affect the amount of time (c) Termination of an Intermittent Sentence of credited (ss. 742.6(14)–(17)). Imprisonment Where an alleged breach is withdrawn or dis- When a court imposes a sentence of imprison- missed, or the court finds the existence of a ment on an offender who is subject to an in- “reasonable excuse,” the offender will receive termittent sentence on another offence, the credit towards the time remaining on the CSO unexpired portion of the intermittent sentence (s. 742.9(15)). is to be served on consecutive days, unless the Where the court is satisfied that the offender court orders otherwise (s. 732(3)) has breached the CSO without “reasonable ex- Where the sentence received on another of- cuse,” the court still may order, in exceptional fence (either at the same time or subsequently) circumstances and in the interests of justice, is a CSO, the unexpired portion of the intermit- that some or all of the period of suspension be tent sentence is not required to be served on deemed to be time served under the CSO consecutive days under s. 732(3). A CSO is (s. 742.6(16)). not a “sentence of imprisonment” for purpose (n) Imprisonment for New Offence While on CSO of s. 731(1) or 732(3), and intermittent sentences can be effectively combined with CSOs If an offender who is subject to CSO is imprison other offences: R. v. Middleton, 2009 oned for another offence, whenever commit- SCC 21. ted, the running of the CSO is suspended during the period of imprisonment for that of- 10. Intermittent Sentence of Imprisonment and fence (s. 742.7). Probation 9. Intermittent Sentence of Imprisonment A court must order that an offender is subject to conditions of a probation order while not in con- (a) Imposition of an Intermittent Sentence of finement until the intermittent sentence is complete Imprisonment and may order that probation is to continue for a set When the court imposes a total sentence of period after completion of the intermittent sentence imprisonment of 90 days or less, the court may (s. 732(1)(b)). order, pursuant to s. 732(1), that the sentence be served intermittently at such times as are 11. Intermittent Sentence of Imprisonment and Fine specified in the order. The sentence need not Section 731(1)(b) of the Code allows for probation be completed within 90 days of the date of im- in addition to either a fine or imprisonment, but not position of sentence (R. v. Lyall (1974), 18 both. Since an intermittent sentence requires an of- C.C.C. (2d) 381 (B.C.C.A.)). When imposing fender to be subject to a probation order while not an intermittent sentence, the court must have in custody, and since this probation order can ex- regard to the following (s. 732(1)): tend beyond the completion of the intermittent sen-  the age and character of the offender; tence, some debate has arisen in the case law as to

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whether an offender can receive an intermittent sen-  a consecutive jail sentence is imposed tence and a fine. Given the inconsistent decisions, for another offence at the same time and the best practice may be to not seek a fine with an the cumulative or aggregate jail sentence intermittent sentence, and thus, avoid a possible ap- results in the offender serving 2 years or peal of a sentence. more (R. v. Pawlak, 2005 BCCA 500; R. v. Hackett (1986), 30 C.C.C. (3d) 159 12. Imprisonment for 2 Years Less a Day, or Less (B.C.C.A.); R. v. Autenreith, 2004 (“Provincial Time”) BCCA 321). A person sentenced to imprisonment for a term of 2 The phrase “imprisonment for a term not ex- years less a day or less shall, unless a special prison ceeding 2 years” in s. 731(1)(b) relates only to is prescribed by law, be sentenced to imprisonment the actual term of imprisonment imposed by a in a prison or other place of confinement within the sentencing court at a single sitting. When an province in which that person is convicted, other offender is serving a jail sentence to which a than a penitentiary (s. 743.1(3)). As an exception, term of probation is attached, and then, before when the court convicts a person for escape from the expiration of that jail sentence, receives prison, the court may order the term of imprison- another jail sentence which, in combination ment be served in a penitentiary, even if the time to with the prior sentence, totals more than 2 be served is less than 2 years (s. 149). years, the probation order remains valid (R. v. Knott, 2012 SCC 42). The judge cannot designate the provincial institutions where the offender will receive provincial (b) Order Comes Into Force time. When imprisonment that is less than 2 years (“provincial time”) is imposed with a proba- 13. Imprisonment for 2 Years Less a Day, or Less tion order, the probation order comes into (“Provincial Time”) and Probation force as soon as the offender is released from (a) The Imposition of “Provincial Time” plus prison (R. v. Ivan, 2000 BCCA 452). Probation Order However, when the offender is released by In addition to sentencing an offender to im- way of conditional release (day parole or full prisonment for a term of not more than 2 years, parole), the probation order starts when the the court may direct that the offender comply sentence of imprisonment expires rather than with the conditions prescribed in a probation when the offender receives conditional release order (s. 731(1)(b)). (s. 732.2(1)(b)). A probation order must be in addition to either 14. Imprisonment and Fine a fine or imprisonment, not both. Where both a fine and imprisonment are imposed, there is no The following information regarding imprisonment jurisdiction to order probation (ss. 731(1)(a) and fine applies to all sentences of imprisonment— and (b); R. v. Blacquiere (1975), 24 C.C.C. both “provincial time” and “federal time.” (2d) 168 (Ont. C.A.); R. v. Wright, [1982] When an offence does not require a minimum term B.C.J. No. 701 (C.A.); R. v. Bennicke, [1982] of imprisonment, a court may impose a fine on the O.J. No. 116 (C.A.)). person (other than a corporation) convicted of the The probation order must not exceed 3 years offence in addition to or instead of any other sanc- (s. 732.2(2)(b)). tion that the court is authorized to impose (s. 734(1)(a)). The probation order starts once the sentence of imprisonment expires (s. 732.2(1)(b)). When the offence requires a minimum term of imprisonment for the convicted person (other than a Probation cannot be imposed on a sentence of corporation), the court may impose a fine in addi- imprisonment for less than 2 years in the fol- tion to the minimum term of imprisonment (the lowing situations: court cannot impose a fine instead of a required  a concurrent jail sentence is imposed for minimum term of imprisonment) (s. 734(1)(b)). another offence and this concurrent sentence is for 2 years or more 15. Imprisonment for a Term of 2 Years or More (s. 731(1)(b); R. v. Hackett (1986), 30 (“Federal Time” or “Penitentiary Time”) C.C.C. (3d) 159 (B.C.C.A.); R. v. Fon- (a) Imposing Sentence taine, 2004 BCCA 477; R. v. Weir, 2004 BCCA 529); or A person who is sentenced to 2 years or more, or to two or more terms of less than 2 years

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each that are to be served one after the other  any reports relevant to conviction or for a total of more than 2 years, must serve the sentence that are submitted to the court; time in a penitentiary (s. 743.1). and Once sentenced to federal time, a prisoner will  any other information relevant to admin- not be sent to a federal penitentiary for 15 days istering the sentence. unless the prisoner agrees to be transferred ear- CSC must ensure that the information it uses is lier (s. 12 of the CCRA). The purpose of the accurate, current and complete (s. 24 of the delay is to allow the prisoner to file an appeal CCRA). This duty exists in part because CSC or attend to personal affairs before the transfer is obliged to give to the PBC, provincial gov- takes place. ernments, provincial parole boards, police and A court that sentences or commits a person to a other authorities, any relevant information to penitentiary must forward to the Correctional assist in decision-making, supervision or sur- Services of Canada (“CSC”) (s. 743.2): veillance (s. 25 of the CCRA).  its reasons and recommendations relat- (d) Eligibility for Release ing to the sentence or committal; The CCRA sets out release eligibilities for  any relevant reports that were submitted prisoner serving fixed sentences of federal to the court; and time. Generally, if a federal prisoner does not get day or full parole, they will be released af-  any other information relevant to admin- ter serving 2/3 of their sentence (“statutory re- istering the sentence or committal. lease”). At the conclusion of sentencing, Crown and Despite the CCRA, when sentencing an of- defence counsel should make submissions fender for an offence set out in Schedule I concerning what materials should be forward- (violent offences) or II (serious drug and related to CSC, including whether any parts of the ed offences) of the CCRA, a judge may order materials should be deleted because they might that full parole eligibility be set at one-half of unfairly prejudice the administration of the the sentence or 10 years, whichever is less, on sentence. consideration of the factors in s. 743.6. (b) Where “Federal Time” Is Served 16. Imprisonment for a Term of 2 Years and The judge who imposes sentence has no juris- Probation diction to designate the penitentiary in which the sentence is served. (a) The Imposition of “Federal Time” Plus Probation Order (c) Corrections and Conditional Release Act A probation order can only be imposed with a The Corrections and Conditional Release Act, sentence of “federal time” if that sentence is S.C. 1992, c. 20 (the “CCRA”) governs federal exactly 2 years (s. 731(1)(b)). A probation or- time. The Prison and Reformatories Act, der cannot be ordered with a sentence of “fed- R.S.C. 1985, c. P–20 also has some limited ap- eral time” in excess of 2 years except where an plication. offender is credited with time spent in pre-trial The CCRA authorizes the exchange of service or pre-sentence custody, as this time should agreements between the federal government not be taken into account when determining if and the province so that a person sentenced to the period of imprisonment is such that a pro- federal time can serve their sentence in a probation order may be added (R. v. Goeujon, vincial facility and vice versa. Federal prison- 2006 BCCA 261; R. v. Mathieu, 2008 SCC ers so transferred are subject to the provincial 21). laws and rules of the provincial prison and vice (b) Order Comes Into Force versa. On a two-year sentence that is a federal sen- When an offender receives federal time, the tence, the probation order will commence once Correctional Service of Canada must obtain the sentence expires. the following information (s. 23 of the CCRA):  relevant information about the offender 17. Imprisonment of 2 Years or More and Fine and the offence; See §8.04(14).  any recommendations made at the time of sentencing or appeal;

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18. Sentences of Life Imprisonment As a general rule, the period of parole ineligibility shall be for 10 years, but this can be Under the Criminal Code, life imprisonment is the ousted by a trial judge’s determination that, maximum penalty that can be imposed for certain according to the criteria in s. 745.4, the offend- offences. In some cases, notably first and second er should wait a longer period before having degree murder, the Criminal Code provides for life their suitability to be released into the general imprisonment as a minimum sentence (s. 235 and public assessed (R. v. Shropshire, [1995] 4 s. 745 to 746.1). S.C.R. 227). Except where sentences of life imprisonment are When a parole ineligibility period of more than fixed by the Criminal Code, such sentences are 15 years is imposed and the offender has appropriate only for the worst offences committed served at least 15 years of the sentence, the by the worst offenders. offender may apply for judicial review to (a) First Degree Murder and Parole Eligibility reduce the parole ineligibility period (s. 745.6; R. v. Vaillancourt, 1989 CanLII 7181 An individual convicted of first degree murder (Ont. C.A.); R. v. Swietlinksi (1995), 92 C.C.C. is automatically subject to a minimum of 25 (3d) 449 (S.C.C.)). The application is heard by years before full parole eligibility. Eligibility a jury, which determines whether the for day parole and unescorted temporary applicant’s number of years of imprisonment absences occurs at 22 years. There is no room without eligibility for parole ought to be for submissions by counsel on sentence in reduced, having regard to the factors in these circumstances. The Supreme Court of s. 745.63(1). Canada has held that the combined effect of s. 231(5)(e) and s. 742(a) [now 745(a)] of the 19. Additional Considerations for Sentences of Code does not infringe ss. 7, 9 and 12 of the Imprisonment Canadian Charter of Rights and Freedoms (R. v. Luxton (1990), 58 C.C.C. (3d) 449 (S.C.C.); (a) Credit for Pre-Sentence Custody (Dead Time) R. v. Arkell, [1990] 2 S.C.R. 695). A sentence commences at the time when it is (b) Second Degree Murder and Parole Eligibility imposed, which is after pre-sentence custody has been credited (s. 719(1); R. v. Mathieu, For second degree murder, the sentencing 2008 SCC 21). A court must state on the rec- judge has the power to set the period of parole ord what the sentence would have been if ineligibility between 10 and 25 years (s. 754(c) credit for pre-sentence custody had not been of the Code). On an appeal from a conviction granted (sometimes referred to as the “effec- of first degree murder where the Court of Ap- tive sentence”); the amount of time spent in peal substitutes a conviction for second degree pre-sentence custody and credit granted for murder, the Court of Appeal may also set this that time; and the actual sentence imposed parole ineligibility period (R. v. Kjeldsen (s. 719(3.3)). However, failure to do so does (1980), 53 C.C.C. (2d) 55 (Alta. C.A.), af- not affect the validity of the sentence: firmed [1981] 2 S.C.R. 617). 719(3.4). A jury may make a recommendation regarding Every offender charged after February 22, the parole ineligibility period (s. 745.2 of the 2010, when the Truth in Sentencing Act was Code). This recommendation is based on the enacted, is entitled to credit for each day spent evidence leading to conviction, and not on fur- in custody at a ratio of at least 1 day’s credit ther evidence or submissions from counsel re- for every day spent in pre-sentence custody. garding the proposed recommendations (R. v. Most offenders are given “enhanced credit” at Nepoose (1988), 46 C.C.C. (3d) 421 (Alta. a ratio of 1.5 days’ credit for every day spent C.A.); R. v. Poirier, 2005 CanLII 3583 in pre-sentence custody where the circum- (Ont. C.A.)). The jury’s recommendation (if stances justify it. The maximum credit that can any) is a factor for the trial judge to consider be given is 1.5 days for every day served: R. v. Summers, 2014 SCC 26; R. v. Clarke, 2014 when imposing sentence, but the judge alone SCC 28; s. 719(3); s. 719(3.1). bears the responsibility to impose a fit sentence having regard to the factors specifically set out The rationale for 1.5 credit is that the offender in s. 745.4 of the Code (R. v. Jordan (1983), 7 lost eligibility for parole or early release by C.C.C. (3d) 143 (B.C.C.A.), leave to appeal re- virtue of being in pre-sentence custody. This is fused December 5, 1983; R. v. Cerra, 2004 because only time after the sentence is im- BCCA 594, leave to appeal dismissed, [2004] posed is used to calculate dates for federal pa- S.C.C.A. No. 15). role and statutory release, and gives a provincial offender the opportunity to earn re-

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mission. Without enhanced credit for time (c) Concurrent Terms of Imprisonment spent in pre-sentence custody, the offender Concurrent terms of imprisonment are served who did not receive bail but received statutory at the same time as one another. If two offenc- release after serving 2/3 of his sentence would es are closely linked, concurrent sentences may spend longer in jail than an identical offender be proper (R. v. Munilla (1986), 38 Man. R. 79 who received the same effective sentence but (C.A.); R. v. Hassan, 2012 BCCA 201). did receive bail prior to being sentenced. Generally, unless the court specifically states The Criminal Code is silent on whether credit that a sentence is consecutive or concurrent to should be given for time spent on judicial in- any outstanding sentence, the sentences must terim release. However, case law provides that be served concurrently (Ewing v. Mission Insti- stringent bail conditions (such as curfew, area tution, 1994 CanLII 2390 (B.C.C.A.); R. v. restrictions, and house arrest) should be seen Duguid (1953), 107 C.C.C. 310 (Ont. C.A.)). as a mitigating factor at sentencing, rather than time for which credit is given based on a rigid (d) Consecutive (or Cumulative) Terms of formula. A court should consider the impact of Imprisonment conditions on the offender’s liberty and look at Consecutive (or cumulative) terms of impris- whether the accused was able to carry on with onment are served one after the other. If the many aspects of normal life, such as employ- charges against the offender arose out of sepa- ment (R. v. Cuthbert, 2007 BCCA 585; R. v. rate and distinct transactions, consecutive sen- Downes (2006), 205 C.C.C. (3d) 488 tences should be imposed (R. v. Munilla (Ont. C.A.)). (1986), 38 Man. R. 79 (C.A.); R. v. Grant (b) Release (Parole) Eligibility 2009 MBCA 9). The “relevant date” for the purpose of imposing a consecutive sentence is The Parole Board of Canada (“PBC”) makes the day of sentencing (not the offence date or parole decisions in BC. The Correctional Ser- conviction date) (R. v. Johnson (1998), 131 vice of Canada (“CSC”) supervises parolees. C.C.C. (3d) 274 (B.C.C.A.)). The “totality The PBC is an independent administrative tri- principle” requires that the cumulative sen- bunal that has exclusive jurisdiction and abso- tence does not exceed the overall culpability lute discretion to: of the offender: R. v. M. (C.A.), [1996] 1 S.C.R. 500.  grant parole to an offender; A court that sentences an offender may direct  terminate or to revoke the parole or stat- that the terms of imprisonment be served one utory release of an offender; and after the other (consecutively) where the offences do not arise out of the same event or se-  cancel a decision to grant parole to an ries of events, or one of the offences was offender, or to cancel the suspension, committed while the accused was on bail or termination or revocation of the parole while fleeing from a peace officer. See or statutory release of an offender. 718.3(4) of the Code and s. 139 of the CCRA. This jurisdiction applies to offenders serving a A judge may order a sentence to be served federal sentence and to offenders serving pro- consecutive to another sentence the judge has vincial time where a provincial parole board previously imposed or is imposing. However, has not been established in a province that judge (“judge #1”) cannot order that a (s. 107(1) and 108(1) of the Corrections and sentence be made consecutive to a sentence Conditional Release Act, S.C. 1992, c. 20 (the imposed by another judge (“judge #2”) in an- “CCRA”). other case, unless that sentence had already The CCRA guides PBC policies, operations, been imposed by judge #2 at the time of the training and parole decision making and pro- conviction in the case in which judge #1 is vides the legal framework for the correctional sentencing (s. 718.3(4)(a) and R. v. Paul, and parole system in Canada. [1982] 1 S.C.R. 621). This rule is important to note since adjournments can occur between The Prisons and Reformatories Act, R.S.C. the date of conviction and the date sentence is 1985, c. P-20 (the “PRA”) also provides some imposed. authority with respect to the release of provincial and territorial offenders. Sentences for child pornography and other sexual offences against a child must run con- Criminal lawyers are usually not involved in secutively under s. 718.3(7). parole eligibility matters—these matters are a consequence of sentencing and are generally The imposition of a sentence that is consecu- referred out to specialists. tive to a life sentence is illogical (R. v.

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Cochrane (1994), 88 C.C.C. (3d) 570 . a pattern of repetitive behaviour (B.C.C.A.)). Excessive sentences resulting that shows a failure to restrain from the accumulation of consecutive sen- the offender’s behaviour, and a tences will be tempered by the principle of likelihood of causing death, in- proportionality in circumstances where the jury, or severe psychological fixed sentence begins to exceed the offender’s harm; expected remaining lifespan (R. v. Stauffer, 2007 BCCA 7). . a pattern of persistent aggressive behaviour that shows a substan- 20. Dangerous Offenders and Long-Term Offenders tial degree of indifference to the consequences to other persons; As part of the sentencing process, the Crown may apply to have an offender designated as a “danger- . brutal behaviour associated with ous offender” or a “long-term offender.” These des- the offence that compels the ignations have different consequences for sentence conclusion that the offender is and are described below. Note that in determining unlikely to be inhibited by nor- an appropriate sentence under the dangerous of- mal standards of behavioural re- fender or long-term offender scheme, s. 718.2(e) straint; or and Gladue apply (R. v. Boutilier, 2017 SCC 64).  the offence for which the offender was Where an offender is convicted of a “serious per- convicted is a “serious personal injury sonal injury offence” or an offence referred in offence” set out in paragraph (b) of the 753.1(2)(a) (specified sexual offences), and there definition of “serious personal injury of- are reasonable grounds to believe the offender fence” in s. 752, and the offender has might be found a dangerous offender or long-term shown a failure to control their sexual offender, the court will grant the Crown’s applica- impulses such that harm to other persons tion for a psychiatric assessment of the offender is likely (s. 753(1)(b); R. v. H.(M.B.) (s. 752.1). This is the first step in any dangerous of- (2004), 186 C.C.C. (3d) 62 (Ont. C.A.)). fender or long-term offender application. In some cases, based on an offender’s criminal (a) Dangerous Offenders history, there is now a rebuttable presumption that the criteria in s. 753(1)(a) and (b) are met. A trial judge’s discretion in deciding whether to declare an offender dangerous must be Upon designating an offender a “dangerous guided by the fundamental purposes and prin- offender,” the court must impose an indeter- ciples of sentencing as found in s. 718 to 718.2 minate sentence unless there is a reasonable of the Criminal Code (R. v. Johnson, 2003 expectation on the evidence that a lesser SCC 46). measure will adequately protect the public from the offender committing a murder or a The law on dangerous offenders changed in serious personal injury offence (s. 753(4.1)). If July 2, 2008, and the previous law continues there is such a reasonable expectation, the to apply to offenders who committed the of- court may impose either a determinate sen- fence for which they are being sentenced be- tence of imprisonment of at least 2 years fol- fore that date. However, most dangerous lowed by long-term supervision of up to 10 offender hearings are now governed by the years, or a traditional sentence for the offence current legislation. committed (s. 753(4)). Under the current legislation, the court must If the court does not find the offender to be a declare an offender a dangerous offender dangerous offender, the court may treat the when the following criteria under s. 753(1) (a) application as a long-term offender application or (b) are met: (described below) or hold another hearing for  the offence for which the offender was that purpose (s. 735(5)). convicted is a “serious personal injury Given the matters under consideration, dan- offence” set out in paragraph (a) of the gerous offender applications usually involve definition of “serious personal injury of- disclosure of the offender’s entire corrections fence” in s. 752, and the offender consti- and criminal history and the calling of expert tutes a threat to the life, safety or psychiatric/medical witnesses. physical or mental well-being of other persons on evidence establishing the fol- (b) Long-Term Offenders lowing (s. 753(1)(a) and R. v. H.(M.B.) The Crown can apply for a long-term offender (2004), 186 C.C.C. (3d) 62 (Ont. C.A.)): designation at the outset, or the court may im-

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pose the designation if the evidence does not  as part of a conditional sentence; and meet the legal test for a dangerous offender  as a term of probation. designation but does meet the test for a long- term offender designation. The court may find In some circumstances, the Code requires the court to that an offender is a long-term if satisfied of impose prohibition orders; in other circumstances they the following: are discretionary.  a sentence of imprisonment of 2 years or 1. Mandatory Firearm and Weapon Prohibition more is appropriate for the offence for Orders which the offender has been convicted (s. 753.1(1)(a)); The Criminal Code requires the courts to make prohibition orders where (s. 109(1)):  there is a substantial risk that the offender will reoffend (s. 753.1(1)(b)); and (i) an offender is convicted of an indictable offence for which an offender can re-  there is a reasonable possibility the risk ceive a sentence of 10 years or more and can eventually be controlled in the where violence against a person was community (s. 753.1(1)(c)). used, threatened or attempted; The court must find there is a substantial risk (ii) an offender is convicted of an indictable of reoffending if the criteria listed in offence where violence was used, s. 753.1(2) are met (i.e. the offence is listed threatened, or attempted against the per- in s. 753.1(2); and the offender has shown a son’s intimate partner, the intimate part- pattern of repetitive behaviour that shows a ner’s child or parent, or anyone who likelihood of causing death, injury, or severe resides with the intimate partner. psychological harm to other persons, or by (iii) an offender is convicted of an offence conduct in any sexual matter has shown a under the Code of: likelihood of causing harm to other persons through similar offences). Where these crite- (a) using a firearm or imitation fire- ria are not met, the court may still find a arm in the commission of an of- substantial risk to reoffend: R. v. McLeod, fence in s. 85(1) and (2); 1999 BCCA 347. (b) possession of a prohibited or re- When a court finds that the criteria in stricted firearm with ammunition s. 753.1 (1) (a), (b), and (c) are met, it may in s. 95(1); designate a person a long-term offender. (c) weapons trafficking in s. 99(1); If a person is designated a long-term offend- (d) possession for the purpose of er the court must impose a sentence of a weapons trafficking in s. 100(1); minimum of 2 years’ imprisonment for the offence for which the offender was convict- (e) making an automatic firearm in ed and order long-term supervision for up to s. 102(1); 10 years (s. 753.1(3)). (f) importing or exporting knowing it When a court does not find an offender to be is unauthorized in s. 103(1); or a long-term offender, the court shall impose (g) criminal harassment in s. 264; a sentence for the offence for which the offender was convicted (s. 753.1(6)). (iv) an offender is convicted of an offence under the Controlled Drugs and Sub- stances Act, S.C. 1996, c. 19 (the [§8.05] Firearms and Weapon Prohibition “CDSA”) of: Orders (a) trafficking in a controlled substance in s. 5(1) of the CDSA; Firearms prohibitions can be ordered in the following circumstances: (b) possession for the purpose of trafficking in s. 5(2) of the CDSA;  upon sentence, pursuant to Criminal Code ss. 109 and 110; (c) importing or exporting a controlled substance in s. 6(1) and (2)  pursuant to applications under certain sections of of the CDSA; or the Criminal Code, such as ss. 111, 117.05, 117.011, 810, 810.01, 810.1, and 810.2; (d) producing a controlled substance in s. 7(1) of the CDSA; or

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(v) an offender was subject to a prohibition When the court does not make a prohibition order, order at the time that the offender or makes an order prohibiting the possession of on- committed a new weapons or firearms ly some items, the court is required to give reasons offence. (s. 110(3)). The length of time that a court must impose a man- Discretionary orders may last for any period up to datory prohibition order depends on whether the of- 10 years (s. 110(2)). fence is a first or subsequent offence to which s. 109(1) applies (s. 109(2)): 3. Preventative Firearm and Weapon Prohibition Orders  For offenders who have been convicted of an offence to which an order applies The court may prohibit an individual from pos- for the first time, the court must prohibit sessing weapons, including firearms, without a per- the offender from possessing: son having been convicted of an offence. Preventative firearm and weapon applications are (a) prohibited firearms, restricted fire- rare, and beyond the scope of these materials, but arms, prohibited weapons, prohibit- may arise in two situations: (1) on application of a ed devices, and prohibited peace officer or firearms officer to a provincial ammunition for life; and court judge for an order prohibiting a person from (b) any firearm other than a prohibited possessing firearms and other regulated items firearm, restricted firearm, and any (s. 111); or (2) on application of a peace officer to a cross-bow, restricted weapon, am- justice where an item has been seized (s. 117.05). munition and explosive substance The judge or justice must be satisfied on reasonable for at least 10 years. grounds that it is not desirable in the interests of safety for the person to possess the specified weap-  For offenders who receive subsequent ons. convictions for an offence to which an order applies, the court must prohibit 4. Lifting of Firearm and Weapon Prohibition possession for life (s. 109(3)). Orders 2. Discretionary Firearm and Weapon Prohibition The court may lift prohibition orders only if the Orders person subject to the order can establish the following (s. 113): Unlike a mandatory prohibition order, a discretionary prohibition order is not necessarily a blanket  they require a firearm or restricted weapon prohibition. The court can pick which kinds of for sustenance hunting or employment weapons or firearms to prohibit the offender from purposes; or possessing.  a prohibition order would constitute a vir- The Criminal Code allows a court to impose a dis- tual prohibition against employment in the cretionary prohibition order in the following cir- only vocation open to the person. cumstances (s. 110(1)): Section 113 has also been applied to allow an ex-  when the offender is convicted of an of- ception for hunting for ceremonial purposes. fence in which violence against a person was used, threatened or attempted, other 5. Surrender and Forfeiture Orders than an offence referred to in s. 109; or When a court or “competent authority” makes a  when an offence was committed by an in- prohibition order, the court or “competent authori- dividual who was not subject to a prohibi- ty” may require the prohibited person to surrender tion order at the time of the offence, and to a peace officer, firearms officer or chief firearms which offence involved a firearm, cross- officer (s. 114) the following: bow, prohibited weapon, restricted weap-  anything the order prohibits the person on, prohibited device, any kind of ammu- from possessing that the person possesses nition, or an explosive substance. on the commencement of the order; and When determining whether a discretionary prohibi-  every authorization, licence and registration tion order should be issued, the court shall consider certificate relating to anything the order whether it is desirable, in the interests of safety of prohibits the person from possessing that the offender or any person, to make such an order the person possesses on the commencement (s. 110(1)). of the order.

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When an accused is convicted of an offence in protection of society and the proper administration which a weapon, an imitation firearm, a prohibited of justice (s. 487.051(2) of the Criminal Code; R. v. device, ammunition or an explosive substance was R.C., 2005 SCC 61). used and that thing has been seized, the Crown should seek a forfeiture order pursuant to s. 491. 3. Secondary Designated Offences This order requires that every item that is prohibited “Secondary designated offences” are defined in by the prohibition order and is in the possession of s. 487.04 of the Criminal Code. the prohibited person is forfeited to Her Majesty. Her Majesty can dispose of or otherwise deal with If the accused is convicted, discharged, or found these items as the Attorney General directs (s. 115, not criminally responsible on account of mental s. 491(1)). disorder, of a “secondary designated offence,” the court may, on application by the prosecutor, order When a prohibition order or forfeiture order is the taking of a DNA sample from that offender made, the lawful owner or a person lawfully enti- (s. 487.051(3)(b)). tled to possess the item covered by the order may apply to have the item returned. If the item was de- In deciding whether or not to make such an order, stroyed, the value of the item will be paid to the the court must consider the factors listed in owner (s. 117, s. 491(2)). s. 487.051(3) and give reasons for its decision (s. 487.051(3); R. v. R.C., 2005 SCC 61). [§8.06] DNA Orders 4. Collection of DNA Sample 1. Generally When a court order authorizes the taking of samples of DNA, the court may order the offender to report Following conviction, the Crown may apply for an at a certain place, day and time for the samples to order requiring that a sample of the offender’s DNA be obtained (s. 487.051(4) of the Criminal Code). be taken. Most often the Crown makes such an ap- Samples shall be taken as authorized under the plication during the sentencing hearing. court’s order or as soon as feasible afterwards The Criminal Code permits a court to order the col- (s. 487.056(1) of the Criminal Code). lection and storage of bodily substances from certain convicted offenders. The DNA Identification 5. Failing to Comply With DNA Order Act, S.C. 1998, c. 37 regulates their use and storage. If an offender fails to appear as required by a court When a DNA order is made, a sample of one or order for the DNA sample, a Canada-wide warrant more bodily substances (blood, hair or buccal cells) may issue for the offender to be arrested in order is taken and sent to the National DNA data bank of for the DNA samples to be taken (s. 487.0551(1) Canada. The sample is processed, and a DNA pro- and (2) of the Criminal Code). file is created and put into a database called the Convicted Offender Index. 6. Use of DNA Information 2. Primary Designated Offences The samples of DNA provided by the offender can only be used for investigative purposes For two subcategories of “primary designated of- (s. 487.08(1), (1.1) and (2) of the Criminal Code). fences” a DNA order is mandatory or presumptive. “Primary designated offences” are defined in The information stored in the DNA data bank is not s. 487.04. directly admissible in court proceedings. Should the identity of a suspect become known through infor- Where an accused (adult or young person) is con- mation obtained by the police from the DNA data victed or discharged of one of the “primary desig- bank, the police must seize (or “re-seize”) the DNA nated offences,” listed under paragraph (a) and from the offender pursuant to a DNA warrant under (c.02) of s. 487.04, the court must order the taking s. 487.05 in order for that DNA to be used in a of a DNA sample from that offender prosecution. (s. 487.051(1)).

However, where an accused is convicted or [§8.07] Sex Offender Information discharged of a primary designated offence under Registration Act (“SOIRA”) Orders paragraph (a.1) to (c.01) and (c.03) to (d) of s. 487.04, the court shall order the taking of a DNA 1. Purpose and Applicability of SOIRA sample unless the court is satisfied that the offender has established that the impact of such an order on The Sex Offender Information Registration Act their privacy and security of the person would be (“SOIRA”) came into effect December 15, 2004, es- grossly disproportionate to the public interest in the tablishing the National Sex Offender Registry. The

Criminal Procedure 121 purpose of SOIRA is “to help police services pre- abroad of sexual offences deemed by the Attorney vent and investigate crimes of a sexual nature by General or Minister of Justice as equivalent to a requiring the registration of certain information re- paragraph (a) s. 490.011 designated offence and lating to sex offenders” (s. 2 of SOIRA). The Regis- who enter or re-enter Canada after April 15, 2011. try is maintained by the RCMP and is not accessible to the public. 2. Appeals and Termination The court must make an order requiring the offend- Where the statutory preconditions are met, the court er to register under SOIRA (ss. 490.012(1)) in the has no discretion to refuse to make an order under following circumstances: s. 490.012 requiring compliance with SOIRA.  when an offender is sentenced for an of- There is a right of appeal from the imposition of a fence referred to in paragraph (a), (c), (c.1), SOIRA order under s. 490.012(2) (the section that (d) or (e) of the definition of “designated requires the court to impose an order where the offence” in subsection 490.011(1) (sexual Crown proves a secondary intent). The prosecutor offences); and may also appeal the refusal to make an order under this subsection (s. 490.014).  when the offender is found not criminally responsible by reason of mental disorder for The offender may apply to terminate a SOIRA order such an offence. under s. 490.012 earlier than its term. Various time periods must pass before such an application can No Crown application is required in these circum- proceed, essentially at the half point of the term of stances; the order is mandatory. the order or after 20 years if the term is life: If the offence is one described in paragraph (b) or s. 490.015 of the Criminal Code. (f) of the definition of “designated offence” in sub- The court will terminate an order early if the of- section 490.011(1) (generally, offences against the fender has established that the impact of continuing person that do not necessarily include a sexual in- an order or obligation (including on their privacy or tent, including murder and criminal harassment), liberty) would be grossly disproportionate to the the Crown may also apply to the court under public interest in protecting society through the ef- s. 490.012(2) for an order requiring an offender to fective prevention or investigation of crimes of a register under SOIRA. Where the Crown applies to sexual nature (s. 490.016 of the Criminal Code). the court and establishes beyond a reasonable doubt that the person committed the offence with the in- 3. Obligations if SOIRA Order Imposed tent to commit one of the offences referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the defi- Within 7 days of a s. 490.012 order, or the offend- nition, the court must impose the order. er’s release from custody, the offender must report to the registration centre (s. 4(1) and (2) of SOIRA). If the Crown does not establish a further intent in Failure to register is an offence (s. 490.031 of the the commission of a paragraph (b) or (f) offence, Criminal Code). the Crown may still apply for an order under s. 490.012(3). The court must grant the order if the An offender must provide identifying information Crown establishes the necessary prior history as set including name and any aliases; addresses of resi- out in that section, meaning the offender was dences, places of employment or school; home convicted in the past of certain designated offences phone and cell phone numbers; height; weight; and without having been subject to a SOIRA order or identifying marks. It is an offence to knowingly notice of an obligation under SOIRA. provide false or misleading information under s. 5(1) or s. 6(1) of SOIRA: s. 490.0311 of the Note that a SOIRA order cannot be made for a Code. “young person” as defined in the Youth Criminal Justice Act, unless that young person was given an An order takes effect immediately. An offender adult sentence (s. 490.011(2)). may have a reporting obligation for life, for 20 years, or for 10 years, depending on the maxi- Counsel should be aware that persons may be sub- mum term of imprisonment, whether the offender ject to SOIRA obligations not arising from was convicted of more than one designated offence s. 490.012 orders. For instance, amendments to the in a single proceeding, and whether the offender Code, SOIRA, the National Defence Act, and the In- had previously been subject to an order or notice of ternational Transfer of Offenders Act have been obligation to comply with SOIRA: s. 490.013. made to include Canadian Forces personnel convicted of sexual offences within the military justice system in the Registry and to allow for the inclusion within the Registry of persons convicted

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[§8.08] Immigration Consequences of such as working or studying. A single criminal convic- Sentencing tion for any hybrid offence under an Act of Parliament, even if prosecuted summarily, will render a foreign na- Counsel must be aware of the possible consequences tional inadmissible for criminality and subject to poten- under the Immigration and Refugee Protection Act, S.C. tial deportation. 2001, c. 27 (“IRPA”) that may occur as a result of a con- Criminal procedures may also have other immigration viction and sentence. Prior to trial, sentencing, or any implications. Following certain types of convictions, a plea negotiations, counsel should consider consulting an person who is making a refugee claim or has protected immigration lawyer in order to appropriately advise their person status could face removal from Canada without client. It is important to find out a client’s immigration any assessment of the person’s risk of persecution. Cer- status early in the process, as the range of immigration tain convictions or sentences could affect the ability to consequences that an individual may face will depend on sponsor relatives, eligibility to apply for citizenship or the individual’s status in Canada. There are essentially access to travel documents. Admissions or findings of three relevant levels of immigration status in Canada: fact in criminal matters could also have serious implica- citizen, permanent resident or protected person, and for- tions in immigration processes. Inadmissibility on secu- eign national. rity grounds or on grounds of organized criminality, for A citizen has the most stable status, and under our cur- example, does not require a conviction and could be rent law the only basis upon which citizenship can be based on admissions made in criminal processes. Find- revoked is if it was originally obtained under false pre- ings of fact in a criminal court will also be given signifi- tenses. Note that while a citizen’s status will not be cant weight in equitable appeals or other immigration placed at risk by criminal processes, there can be other proceedings. immigration implications in certain situations, such as Criminal counsel should work closely with competent the citizen losing passport privileges or becoming ineli- immigration counsel as early as possible in the process, gible to sponsor relatives. as there are a number of steps that can be taken at all The status of permanent resident or protected person stages of the process to mitigate or avoid immigration is relatively secure but can be lost in a defined set of cir- consequences if they are well understood. Prior to con- cumstances, including if a permanent resident is found viction, engaging in the plea resolution process in an inadmissible to Canada for serious criminality. Serious informed manner can allow for pleas to lesser or includ- criminality is defined under s. 36(1)(a) with respect to ed offences, the laying of different charges, or other convictions in Canada as “having been convicted in forms of resolution such as peace bonds which avoid Canada of an offence under an Act of Parliament pun- inadmissibility altogether. At the sentencing stage, im- ishable by a maximum term of imprisonment of at least migration consequences are clearly a relevant factor to 10 years, or of an offence under an Act of Parliament for be considered. If a sentencing judge concludes that a which a term of imprisonment of more than six months sentence is in the appropriate range for the offence, the has been imposed.” For the purposes of this section, a judge should consider collateral immigration conse- hybrid offence is deemed to be indictable, so the relevant quences. However, the risk of deportation cannot justify maximum term for a hybrid offence is the maximum a sentence that is inconsistent with the fundamental pur- term for the indictable version of the offence pose and principles of sentencing and should not be used (s. 36(3)(a)). In assessing the length of the term of im- to circumvent the provisions and policies of the IRPA (R. prisonment, pre-sentence custody that is expressly cred- v. Pham, 2013 SCC 15). Post-conviction relief can be ited towards a person’s sentence will count (Canada sought through the pardon or record suspension process, (Minister of Citizenship and Immigration) v. Atwal, 2004 or in the appellate courts—for example, by challenging FC 7), but conditional sentence orders will not (Tran v. the validity of the conviction (R. v. Reid, 2017 Canada (Public Safety and Emergency Preparedness), BCCA 53; R. v. Agbor, 2010 BCCA 278), seeking to 2017 SCC 50). If sentenced to a term of imprisonment in withdraw a guilty plea (R. v. Wong, 2018 SCC 25), or Canada of less than six months, a permanent resident or pursuing a sentence appeal (R. v. Pham, 2013 SCC 15). protected person will generally have a right to appeal Note that the consequences of a plea or sentence will potential loss of status for serious criminality to the Im- often be different under the immigration law of other migration Appeal Division of the Immigration and Ref- countries such as the United States. If future entry into a ugee Board on equitable grounds. This is a very foreign jurisdiction is important to a client, then a refer- important right and could be the most significant protec- ral to a competent practitioner of foreign law is appro- tion the person has from loss of status and deportation priate. from Canada. A foreign national is any person who is not a Canadian citizen or a permanent resident, and has the most precar- ious immigration status. Foreign nationals require authorization to enter Canada and to engage in activities

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[§8.09] Record Suspensions and Pardons disqualifications cannot be removed by a record suspension (s. 2.3(b) of the CRA), including various obligations An offender may seek to minimize the continuing impact to comply with SOIRA and prohibitions under s. 161 of of a past criminal conviction by seeking a record the Code. (However, on receiving a record suspension, a suspension pursuant to the Criminal Records Act, R.S.C. person can also apply to terminate their SOIRA obliga- 1985, c. C-47 (the “CRA”) or, in exceptional tions: s. 490.015.) circumstances, a pardon.2 The benefit of a record suspension is that it results in any Applications for record suspensions and pardons are record of the conviction being kept separate and apart made to the Clemency Division of the Parole Board of from other criminal records. Its existence or content is Canada. Depending upon the nature of the conviction, a not disclosed, except with the prior approval of the Min- person must wait 5 (summary conviction) or 10 (indicta- ister of Public Safety and Emergency Preparedness who ble) years before applying (s. 4(1)(a) and (b) of the may exercise his discretion to do so if it is desirable in CRA).3 the interests of the administration of justice (s. 6(3) of the CRA). Exceptions are made for disclosure to en- Persons who have been convicted of an offence in Cana- forcement agencies under limited circumstances (s. 6.2 da under a federal act or regulation, or a Canadian of- of the CRA). What this means in practical terms is that fender found guilty of an offence in another country and the conviction is removed from the Canadian Police In- transferred to Canada under the International Transfer of formation Centre (“CPIC”) database, and a CPIC search Offenders Act, may apply for a record suspension (s. 3 of should not show the conviction or record suspension. the CRA) unless they are ineligible. However, the fact of a suspended record in relation to a Some offenders are permanently ineligible for a record Schedule 2 conviction is flagged in CPIC in case a for- suspension. For instance, a person is permanently ineli- mer sexual offender applies for a volunteer or employ- gible if they were convicted of more than three offences ment opportunity in a sector dealing with children or prosecuted by indictment or subject to a maximum pun- vulnerable persons and consents to a record check (s. 6.3 ishment of imprisonment for life, and for each was sen- of the CRA). Note as well that whether a record suspen- tenced to imprisonment for 2 years or more (s. 4(2)(b) of sion will allow a person to enter another country is a the CRA). Persons who committed an offence listed in matter of the law of that other country and not Canadian Schedule 1 to the CRA (sexual offences in relation to law. children) are not eligible for a record suspension unless A record suspension may be revoked, within the discre- the offender satisfies the Board that they were not in a tion of the Board, as set out in s. 7 of the CRA. It also position of trust or authority towards the victim and the automatically ceases to have effect in the circumstances victim was not in a relationship of dependency with described in s. 7.2 of the CRA, such as if the person is them; the offender was less than 5 years older than the subsequently convicted of an indictable offence under a victim; and there was no violence, intimidation, or coer- federal statute or regulation. cion used or threatened (s. 4(2)(a)–4(4) of the CRA). As an alternative to a record suspension, and as an ex- The Board may order a record suspension upon being ceptional remedy, a person convicted of a federal of- satisfied that the applicant was of good conduct and not fence may apply for clemency through a pardon under convicted of an offence during the applicable waiting the Criminal Code (s. 748; s. 748.1) or under Her Majes- period. Additional criteria apply if the offence falls un- ty’s royal prerogative of mercy. der s. 4(1)(a) of the CRA (primarily indictable offences) The Board must also be satisfied that the suspension Under the Code, the Governor in Council can grant a would provide a measurable benefit to the applicant, sus- “free pardon” (which recognizes the conviction was in tain rehabilitation, and not bring the administration of error, and after which the person is deemed never to justice into disrepute (s. 4.1(1)(b), 2 and 3 of the CRA). have committed the offence), or a “conditional pardon” (which has the same effect as a record suspension or re- A record suspension does not wipe out a criminal con- sults in parole before the eligibility date, for those sub- viction. It removes most disqualifications imposed as a ject to life and indeterminate sentences). result of a conviction. Some preventative obligations and The Governor General has the authority in Canada to exercise the royal prerogative of mercy. Though the Code does not limit the royal prerogative of mercy, a 2 This section describes the current CRA, and applies to a person request to the Governor General would only be made convicted of an offence on or after March 13, 2012, and not to a when it was not possible to proceed under the Code. person convicted and sentenced before that date or convicted before that date but not sentenced until afterwards. 3 Recent legislative amendments allow Canadians with criminal records for simple possession of cannabis to apply for a pardon with no mandatory waiting period or cost.

Criminal Procedure 124 of Appeal. However, when an accused has pleaded Chapter 9 guilty to a combination of both summary as well as indicted offences and is appealing the sentence, the best approach is to have all matters heard in the Appeals Court of Appeal pursuant to s. 675(1.1) of the Criminal Code. Appeals and reviews for young persons convicted Summary Conviction Offences1 of offences are dealt with in Chapter 7, §7.09. When an appeal is filed, the oral hearing will ordi- [§9.01] Introduction narily be set for a morning or afternoon court sitting (or portion thereof). If more time is required, court A single judge of the Supreme Court hears appeals of scheduling will allot more time when the matter is offences that are prosecuted summarily, and of offences set down for hearing, however, this may result in a prosecuted under provincial statutes and municipal longer wait for a hearing date. by-laws. The Provincial Crown is the respondent for Criminal Code offences, and the Federal Crown (PPSC) Pursuant to s. 814(3) of the Criminal Code, the ap- for those under the Controlled Drugs and Substances Act peal will be heard in the Supreme Court closest to (and other Federal Crown jurisdiction statutes). By-law the Provincial Court where the adjudication under offences are handled by legal counsel for the city. appeal was made. An application may be made under that same section to move the hearing to another The relevant law and procedure for summary conviction courthouse. appeals brought for criminal matters is found in ss. 812– 838 of the Criminal Code and under Rule 6 of the Crim- 2. Documents and Timelines inal Rules of the Supreme Court of British Columbia (the “Rules”). The Rules also include boilerplate forms that Appeals are commenced by filing six copies of the should be used in drafting the applicable documents. notice of appeal (Form 3 Defence, Form 4 Crown) Sections 683–689 (excepting ss. 683(3) and 686(5)), the at the appropriate registry. “Registry” means an of- Court of Appeal sections of the Criminal Code, are ap- fice of the appeal court in the judicial district near- plicable to summary conviction appeals (s. 822). This est to the place where the trial was held (Rule 6(1)). includes applications for the appointment of counsel If the defence appeals, the appeal must be filed pursuant to s. 684 of the Criminal Code. within 30 days after the order under appeal has been Sections 101 to 130 of the Offence Act govern summary pronounced, or within 30 days after the sentence matters under provincial statutes, for example convic- has been imposed (Rule 6(2)). The registry clerk tions under the Motor Vehicle Act. Section 109 of the forwards a copy of the notice of appeal to the Offence Act incorporates ss. 683–689 of the Criminal Crown. The defence may commence a conviction Code (excepting ss. 686(5)) into Offence Act appeals. appeal even though the corresponding sentence has Where the Offence Act is silent on a given point, s. 133 not yet been imposed (R. v. Benson, 1978 CanLII of that legislation make the Criminal Code provisions of 2365 (B.C.C.A.)). summary conviction applicable. If the Crown appeals, the appeal must be filed and served within 30 days after the order under appeal [§9.02] Procedure has been pronounced (Rule 6(3)). The Crown must serve the defendant personally or, if necessary, ap- 1. Jurisdiction ply under Rule 6(4)(c) for directions from the court Determining whether to file a criminal appeal in the for alternative service, or obtain an order for substi- Supreme Court or the Court of Appeal is straight- tuted service if the accused is evading service forward. The appellate jurisdiction of the Supreme (Rule 6(4)(d)). Court is limited to those matters prosecuted sum- The date for hearing the appeal can fixed when the marily under Part XXVII of the Criminal Code. If documents are filed, or soon after. Counsel must the Crown elected to proceed by way of indictment provide available dates to Supreme Court Schedul- on a hybrid offence, the appeal is made to the Court ing, the entity which controls the court calendar. Supreme Court Scheduling is distinct from the reg- 1 Revised by Nicholas Reithmeier, Crown Counsel, Summary istry staff. In some court locations they may be Conviction Appeals, New Westminster, in February 2021, Au- proximately located, in others (for example New gust 2018 and 2016. Previously revised by John Caldwell Westminster) they are on separate places in the (2010); Lisa Falloon (2009); Gillian Parsons (2006); Anita courthouse. A date will not be set off record beyond Ghatak (2005); Gail C. Banning (2004); Adrienne Lee (2002); six months from the date the appeal is filed. Within K. Angela White (1998–2001); Sandra Dworkin (1996 and that 6-month period, the date may be changed with 1997); and Suzanne Williams (1995).

Criminal Procedure 125 agreement of counsel, which is confirmed by filing The statement of argument must be on 8 1/2 x 11- a requisition. Dates beyond the 6-month period can inch paper, be double-spaced, have consecutively only be set with leave of the court (Rule 6(11)), numbered paragraphs, and not exceed 20 pages in which would be done through an in-court applica- length (Rule 6(18)). tion to a Supreme Court judge. Unlike appeals in the Court of Appeal, there is no Most appeals are argued on the transcript. Conse- requirement for appeal books to be filed in sum- quently, within 14 days of serving the notice of ap- mary conviction appeals. However, it will usually peal, the Rules stipulate that the appellant must fur- fall on counsel to arrange for all trial and sentencing nish proof (satisfactory to the registrar) that tran- exhibits to be transferred from the Provincial Court scripts have been ordered (Rule 6(5)). For a convic- registry to the Supreme Court registry where the tion appeal, the evidence and reasons for judgment appeal has been filed. Counsel should make this re- are required. Submissions of counsel are not request of the Supreme Court registry well in advance quired as per the Rules, but can be helpful. In con- of the hearing date. trast, a sentence appeal must include submissions Although all these foregoing provisions are written by counsel. The original and one copy of the re- as mandatory, in practice, many of them (other than quired transcripts and reasons for judgment must be Rule 6(2) and (3)) are rarely strictly enforced. The filed and served within 30 days (sentence appeals) deadlines that follow the filing of the notice of or 45 days (all other appeals) of service of the no- appeal will frequently be given latitude through the tice of appeal (Rule 6(7)). agreement of counsel. Not later than 30 days before the hearing, the appel- An appeal may be abandoned by filing a notice in lant must file a statement of argument and serve one Form 5, or by speaking to the matter in court. copy on the respondent (Rule 6(14)). The appellant’s statement must be concise and must include Rule 6 (subrules (2)–(22)) provides that the re- the circumstances, relevant facts, and points of law spondent or the registrar may apply for dismissal of and fact to be argued (Rule 6(15)). the appeal if the appellant fails to pursue the appeal diligently or fails to comply with the Rules. The respondent must then file a response not later than 14 days before the hearing (Rule 6(14)). The 3. Extension of Time to Appeal respondent’s statement must indicate which portions of the appellant’s circumstances and facts are Applications to file a notice of appeal outside of the accepted, state the respondent’s version of the cir- 30-day limitation period may be made pursuant to cumstances and facts where there is disagreement, Rule 6(25). The application is made to a Supreme and include any additional circumstances or facts to Court judge and the legal principles governing an be relied upon. In addition, the respondent must application for an extension of time are well estab- state a position about the points of law contained in lished. They were succinctly stated by Justice the appellant’s argument and state any additional DeWitt-Van Oosten in R. v. Khungay, 2020 BCCA points to be argued (Rule 6(16)). 269: Though not required by the Rules, three bound cop- [8] A justice of this Court may extend the ies of all case law referred to in the statement of ar- time to file a notice of appeal or application for gument can also be filed. A more modern approach leave to appeal: Court of Appeal Act, R.S.B.C. is to hyperlink the cited cases within a PDF of the 1996, c. 77, s. 10(1). The criteria applicable to argument and forward this to Supreme Court granting an extension of time are found in Da- Scheduling who can then in turn forward it to the vies v. C.I.B.C. (1987), 1987 CanLII 2608 (BC judge assigned to the appeal. If counsel are refer- CA), 15 B.C.L.R. (2d) 256 at 260 (C.A.) and ring to many of the same cases, they should consid- are summarized as follows: er preparing and filing a joint book of authorities. 1) Was there a bona fide intention to appeal? A statement of argument is not required if the ap- 2) When were the respondents informed of the pellant is unrepresented (Rule 6(19)(a)) or if the ap- intention? peal is from sentence only (Rule 6(14)). In sentence appeals, however, it is very useful to file a brief or 3) Would the respondents be unduly preju- memorandum of argument setting out the appel- diced by an extension of time? lant’s (or respondent’s) position. It is also very use- 4) Is there merit in the appeal? ful for the Crown to file an argument when the appellant is self-represented. 5) Is it in the interests of justice that an extension be granted? All statements of argument must refer to the transcript and list the authorities relied upon. Refer- ences to authorities should include the full citation.

Criminal Procedure 126 [9] In Davies, Seaton J.A. for the Court said or verdict of not criminally responsible on account the fifth factor “encompasses” the other factors of mental disorder or of unfit to stand trial or other and “states the decisive question” (at 260). final order or determination of a summary conviction court.” This section gives the Crown a more … expansive scope of appeal than that provided under [10] These same factors apply in the criminal s. 813(b). context: R. v. Smith, 1990 CanLII 1028 An appeal filed under s. 830 precludes the filing of (B.C.C.A.) at 2–3. an appeal under s. 813 (see s. 836). Most summary See also the summary of this law in R. v. Vinet, conviction appeals are launched under s. 813. 2011 BCSC 1928 at para. 15. As can be seen from Section 830 sets out three grounds for appeal: Vinet, time is of the essence when it comes to complying with the Rules for commencing an appeal, (a) it is erroneous in point of law; particularly if the Crown is appealing. The court (b) it is in excess of jurisdiction; or may give greater latitude to defence applications, but all efforts should be made to comply with (c) it constitutes a refusal or failure to exercise Rules 6(2) and (3). jurisdiction. Section 830 could be used to remedy an error that 4. Pre-Hearing Conferences and Applications for would otherwise require the more cumbersome pro- Directions cess of applying for an extraordinary remedy by A pre-hearing conference may be held pursuant to way of prerogative writ (see §9.21). Rule 6(12) and (13). Rule 6(34) also allows either The appellate court has different powers in an ap- party to apply for directions for any matter not pro- peal under s. 830 than under the more usual forms vided for in Rule 6. It may be prudent to use these of appeal. The court’s powers under s. 830 are set provisions if the appeal deals with a complex ques- out in s. 834: the court can affirm, reverse or modi- tion such as the ineffective assistance of counsel or fy the conviction, judgment, verdict, or other final an application to adduce fresh evidence. For the order or determination; or it can remit the matter to former issue, while the Court of Appeal has a Prac- the summary conviction court accompanied by the tice Directive to help the parties navigate such liti- opinion of the appeal court. gation, the Supreme Court does not, but can adopt the steps that are set out within the higher Court’s [§9.04] Bail Pending Appeal directive.

[§9.03] Other Forms of Appeal An appellant may apply for bail pending appeal under s. 816. Unlike s. 679 releases (by the Court of Appeal), s. 816 does not set out what the court must consider 1. Trial de Novo when determining if the applicant should be released. An appeal may be determined by holding a trial de However, the common law has incorporated the consid- novo (new trial) in the Supreme Court (s. 822(4)). erations under s. 679 (R. v. Gill, 2010 BCSC 1987) An application to the court must be made under (these considerations are described in §9.11). Recent Rule 6(8). An appeal may be allowed “because of amendments to the Criminal Code, in force as of De- the condition of the record,” or for any other reason cember 18, 2019, require the court to impose, as a condi- where the interests of justice so require. In practice, tion of release, a date for the accused to surrender them- this section is rarely invoked (R. v. Louis, 2014 selves into custody (s. 816(1)). BCSC 1029). An example would be if there was a An important distinction between applications for bail malfunction in the recording equipment in the trial pending appeal on summary matters and indicted ones is court. that jail sentences for summary matters will typically be shorter. As such, the fact that an appellant will have 2. Summary Appeals on the Transcript or an served most or all of a sentence before an appeal is heard Agreed Statement of Facts is often a significant factor that the court will consider, Sections 829–838 deal with forms of appeal that are especially if there is substantial merit to the ground(s) of rarely filed in practice. The appeal is based either appeal. If the appellant is refused bail pending appeal, on the transcript or an agreed statement of facts, then there is a strong practical purpose in bringing the filed within 15 days of filing the notice of appeal. appeal promptly.

3. Section 830 Appeals Section 830 provides that any party may appeal against a “conviction, judgment, verdict of acquittal

Criminal Procedure 127 [§9.05] Hearing the Appeal [§9.06] Orders

1. Grounds of Appeal (see also §9.18) On defence appeals, the summary conviction appeal court may dismiss the appeal, allow the appeal and order The bases on which an appeal will be allowed or a new trial, or allow the appeal and enter an acquittal. dismissed are found in s. 686 of the Criminal Code. Because ss. 683–689 apply to appeals taken under On Crown appeals, the court may dismiss the appeal, s. 813, the legal grounds of appeal are virtually allow the appeal and order a new trial, or allow the ap- identical to those outlined later in this chapter in peal, set aside the acquittal and enter a conviction. The §9.18. latter order will only be made if the Crown can satisfy the court that all the findings necessary for a conviction One notable exception is that, while there is no ap- were made in the trial court (R. v. Cassidy (1989), 50 peal to the Court of Appeal from findings of fact, C.C.C. (3d) 193 (S.C.C.)). the Crown may appeal in the Supreme Court on questions of fact (R. v. Bassi, 2019 BCSC 1224 at A successful appeal might result in remitting the matter para. 16). back to Provincial Court. If the Crown is seeking detention or conditions of release, the Crown can argue for A second distinction is that the Court of Appeal either on the date of the appeal judgment, applying must grant leave to appeal in some circumstances s. 821 of the Criminal Code. This would be another rea- (for instance, in sentence appeals), while s. 813 of son to require personal attendance on the date of the the Criminal Code provides both the defence and judgment. the Crown with a right of appeal in the Supreme Court. An order form is usually filed with the registry after the conclusion of the appeal. The practice is for the Crown 2. The Hearing to prepare and file the order regardless of whether the Crown is the successful party. Although written submissions are made in advance, there is an oral hearing for all appeals. Counsel are [§9.07] Further Appeals for Summary required to gown for the hearing. A party to the ap- Convictions peal who is represented by counsel need not appear in person at the hearing, unless there is an order An appeal from the judgment of the summary conviction compelling that party to appear. Personal attend- appeal court may be taken to the Court of Appeal on a ance will usually be required if the party is at large question of law alone, with leave of a judge of the Court on a bail order pending appeal or if there is a matter of Appeal (s. 839). that has been stayed pending appeal. Because the judge will typically only be assigned to ______the summary offence appeal the day prior to the oral hearing, counsel should not assume that the judge has had the opportunity to review all the filed Indictable Offences2 material in detail, or at all. [§9.08] Governing Provisions The appellant will start and should not assume that there will be an opportunity to reply following the All indictable offences are appealed directly to the Court respondent’s submissions. of Appeal. The relevant law and procedure is found in The court may give reasons from the bench the day Part XXI of the Criminal Code (Appeals—Indictable of the hearing, or it may reserve judgment. If the Offences) and the Criminal Appeal Rules, 1986. matter is under reserve, the court may give a date The Court of Appeal has no inherent jurisdiction to hear certain for judgment or it may adjourn generally. If appeals or grant remedies. Its jurisdiction and powers are a party is on bail pending appeal or is the benefi- restricted to those specifically conferred by statute. ciary of a stayed order, the decision should go to a date certain so that the party can attend for the rein- Where an offence is pursued by indictment, appeals may stitution of the stayed order in the event the appeal arise from the conviction, sentence, acquittal, or a ver- is unsuccessful. If the matter is adjourned generally, dict tantamount to an acquittal (for example, a stay of the court will often give judgment without a court proceedings) by a trial court. If the proceedings were by appearance by sending the decision to counsel via indictment, but the conviction in question was for an email. 2 Updated by John Caldwell, Crown Counsel, Vancouver, in January 2021 and September 2018. Previously reviewed by Mi- chael J. Brundrett (2008, 2010, 2012, and 2016); Gregory J. Fitch (1997–2008); Kenneth Madsen (2006); and Alexander Budlovsky (1994 and 1996).

Criminal Procedure 128 included offence punishable on summary conviction (see All appeals against conviction and acquittal are now sub- s. 662 of the Criminal Code), the appeal arises out of a ject to specific filing deadlines. See Criminal Convic- “proceeding by indictment” within the meaning of s. 675 tion/Acquittal Appeals Timeline (Criminal Practice Di- of the Criminal Code, and Part XXI of the Criminal rective, 13 January 2014). Barring exceptional circum- Code applies. The Criminal Code does not provide for stances, the aim is to ensure that such appeals are heard appeals from interlocutory rulings, although such rulings within a year of the filing of the notice of appeal. may give rise to appeal at the conclusion of the trial. When appearing before the Court of Appeal, counsel To avoid the unnecessary bifurcation of appeals, when should first review Appearing before the Court (Civil summary conviction offences are tried with indictable and Criminal Practice Directive, 11 October 2019) for offences, and the Crown or defence wants to launch ap- useful information on in-court etiquette, etc. peals on both, Part XXI applies if the conditions set out in ss. 675 (1.1) and 676 (1.1) of the Criminal Code are [§9.09] Notice of Appeal satisfied. In that event, the appeals relating to both the summary conviction and indictable offences are “consol- The proper form to use in filing the notice of appeal, or idated” and heard in the Court of Appeal. Absent these notice of application for leave to appeal, depends on the provisions, a party wanting to appeal from a convic- nature of the appeal, as provided in the Criminal Appeal tion/acquittal or sentence imposed with respect to a Rules. Form 1 is for a notice of appeal against convic- summary conviction offence, and a conviction/acquittal tion and/or sentence where the appellant is represented or sentence imposed for an indictable offence, if those by counsel. Form 1A is for a summary conviction appeal offences were tried at the same time, is obliged to pursue where the appellant is represented by counsel. Form 2 is appeals in both the Supreme Court and Court of Appeal. for a notice of appeal against conviction and/or sentence If indictable and summary conviction matters are consol- where the appellant is not represented by counsel. idated for appeal purposes, leave with respect to the Form 3 is for a Crown appeal against acquittal or sen- summary conviction offences, required by s. 839(1) of tence. Five copies should be filed with the registry. The the Criminal Code, is still necessary (R. v. F.M., 1999 notice of appeal, whether it be from conviction, sen- BCCA 443 (Chambers)). tence, or both conviction and sentence, must be filed 30 days from the pronouncement of sentence. If the Pay special attention to hybrid or Crown-electable of- Crown appeals, the notice of appeal must be filed within fences. If the Crown fails to indicate on the record 30 days after the pronouncement of the order under ap- whether it is proceeding summarily or by way of indict- peal (Rules 3, 4 and 5). If a notice of appeal is not filed ment, and the trial proceeds in Provincial Court, the within 30 days, an application to extend time to appeal Crown is, as a general rule, deemed to have proceeded must be filed—see §9.12 of this chapter. summarily (R. v. Dosangh (1977), 35 C.C.C. (2d) 309 (B.C.C.A.); R. v. Dixon, 2013 BCCA 41). However, the The Court of Appeal registry serves the notice of appeal presumption is rebuttable and the proceedings will be on Crown counsel. Counsel for the appellant must ar- treated as indictable for purposes of appeal, even in the range service on the Crown of all other documents, in- face of the Crown’s failure to make a formal election, if cluding documents related to applications for bail and it is clear from the circumstances that everyone under- other interlocutory matters. Documents for appeals being stood the proceedings to be by indictment (R. v. Tommy, handled by the provincial Attorney General, except for [1989] B.C.J. No. 2207 (C.A.), R. v. R.M. and I.S., 1997 those filed in the Victoria Court of Appeal registry, may CanLII 12499 (B.C.C.A.) and R. v. Coupland (1978), 45 be served on the office of Criminal Appeals and Special C.C.C. (2d) 437 (Alta. C.A.)). Prosecutions: Suite 600, 865 Hornby Street, Vancouver, British Columbia, V6Z 2G3. Documents for appeals in Appellate procedure for young offenders is governed, in the Victoria Court of Appeal registry may be served on part, by s. 37 of the Youth Criminal Justice Act. See the provincial Crown: Criminal Appeals and Special Chapter 7, §7.09. Prosecutions, 3rd Floor, 940 Blanshard St., Victoria, BC, When preparing appeal documents, pay close attention V8W 3E6. The mailing address of the Victoria appeals to the requirements of the Criminal Appeal Rules, 1986, office is P.O. Box 9245 Stn. Prov. Govt., Victoria, BC, so as to avoid the delay and expense of documents being V8W 3E6. Appeals that the Attorney General for Canada rejected by the Court of Appeal registry. A “checklist to will be handling should be served on the Public Prosecu- assist in the filing of appeal books and transcripts,” tion Service of Canada: Suite 900, 840 Howe Street, which details common shortcomings ranging from illeg- Vancouver, British Columbia, V6Z 2S9. ible photocopies to wrongly coloured covers on tran- Since September 7, 2010, when a notice of appeal scripts and appeal books, is available at the registry. The against conviction or acquittal is filed, the registry will civil rules requiring approval of the transcripts and ap- prepare and send a “Criminal Appeal Filing Schedule peal books before they are filed do not apply to criminal Advisory Letter” to the parties or their counsel. This let- matters. Counsel are responsible, however, for filing ter sets out the standard deadlines that govern the case. complete materials to support the grounds of appeal. The registrar will monitor the filing dates and will contact counsel if a filing date is missed.

Criminal Procedure 129 [§9.10] Grounds of Appeal not consider increasing the sentence unless the Crown has given notice to the appellant that an in- In addition to the provisions discussed below, there are crease in the sentence will be sought. This is a pow- appellate provisions regarding dangerous and long-term er that is rarely exercised by the Court of Appeal. offender proceedings (s. 759 of the Criminal Code), An appeal from sentence may be filed by complet- extraordinary remedies (s. 784), and contempt proceeding Form 1 of the Criminal Appeal Rules. Only one ings (s. 10), which are not discussed in this chapter. form is necessary to appeal both conviction and sentence. 1. From Conviction The accused may appeal (without leave) a convic- [§9.11] Bail Pending Appeal tion on any ground of appeal that involves a question of law alone (s. 675(1)(a)(i)). The accused may The law governing applications for bail pending appeal appeal (with leave) on any ground of appeal that in- is set out in s. 679 of the Criminal Code. Pursuant to volves a question of mixed law and fact s. 679(5), Parliament has required that the court impose (s. 675(1)(a)(ii)), or on any other sufficient ground a surrender date as a condition of a release order when- (s. 675(1)(a)(iii)). If there is any doubt about ever an appellant is released on bail pending appeal. whether or not the ground of appeal in question is one of law alone or of mixed fact and law, the ap- 1. Bail Pending Appeal From Conviction pellant should tick off both boxes on the notice of The Criminal Code states that an appellant appeal- appeal or the application for leave to appeal, setting ing conviction may be released if the notice of ap- out the grounds of appeal as either a question of law peal (or notice of application for leave to appeal) alone or a question of mixed law and fact. has been filed and the appellant satisfies the court as to specific concerns: 2. From Acquittal (a) the appeal or application for leave to appeal is The Crown can only appeal on a ground of law not frivolous (s. 679(3)(a)); alone (s. 676(1)(a)). It can be challenging determining what is a question of law alone and (b) the appellant will surrender themselves into what is a question of mixed law and fact. Counsel custody in accordance with the terms of the for an accused/respondent should always scrutinize order (s. 679(3)(b)); and the grounds of appeal on a Crown appeal expecting (c) the appellant’s detention is not necessary in the to argue that the appeal does not raise a question of public interest (s. 679(3)(c)). law alone. There are many cases that distinguish between questions of law alone and other kinds of If the applicant satisfies the court as to the first two questions: see, for example, R. v. Biniaris, 2000 criteria, the court will consider the public interest SCC 15; and R. v. J.M.H., 2011 SCC 45. question from two angles: public safety and public confidence in the administration of justice. If the 3. From Sentence applicant satisfies the court that granting bail would not compromise public safety, then the court will The accused or the Crown may apply for leave to weigh the public interest in enforcing the verdict appeal sentence, asking the Court of Appeal to con- (which could be weighted more heavily in cases of sider the fitness of a sentence imposed by the trial serious crimes) against the public interest in review- court (s. 687). “Sentence” is defined in s. 673. The ing the conviction for serious error: R v. Oland, Supreme Court of Canada recently confirmed the 2017 SCC 17. standard for appellate review of a sentence as follows in R. v. Friesen, 2020 SCC 9 at para. 26: 2. Bail Pending Appeal From Sentence As this Court confirmed in Lacasse, an appel- The Criminal Code sets out conditions for release late court can only intervene to vary a sentence of an applicant who is appealing sentence: if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error (a) leave to appeal has been granted (s. 679(1)(b)); in principle that had an impact on the sentence (b) the appeal has sufficient merit that, in the cir- (para. 44). cumstances, it would cause unnecessary hard- Once the sentence is put in issue by an accused, the ship were the appellant detained in custody court has jurisdiction to increase the sentence, even (s. 679(4)(a)); if the Crown has not filed a cross appeal on sen- (c) the appellant will surrender themselves into tence asking for the sentence to be increased (R. v. custody in accordance with the terms of the Hill (1975), 23 C.C.C. (2d) 321 (S.C.C.)). The poli- order (s. 679(4)(b)); and cy of the Court of Appeal, however, is that it will

Criminal Procedure 130 (d) the appellant’s detention is not necessary in the be, and usually is, addressed when the appeal is heard. public interest (s. 679(4)(c)). The extension application may be heard in advance of the appeal where it will be opposed or will be time- This is a more stringent test than that for bail pend- consuming, or where there are matters (for example, ing appeal against conviction. The court will some- bail) that must be dealt with before the hearing date of times set down an early hearing date on an appeal the appeal. from sentence rather than release the person on bail pending appeal. The court cannot admit an appellant to bail pending appeal without first granting an extension of time to enable 3. Review of Initial Decision the filing of a notice of appeal. A judge’s decisions made under s. 679 may, on the Crown counsel may decide not to oppose applications to direction of the Chief Justice of the Court of Ap- extend time, particularly if the delay is short and ex- peal, be reviewed by that court (s. 680 and plained by the need to obtain approval for legal aid fund- Rule 20). ing or some other sufficient cause.

4. Bail Pending New Trial [§9.13] Transcripts and Appeal Books When either the Court of Appeal or the Supreme For conviction appeals, an appellant is required by Court of Canada orders a new trial, the pre-trial bail Rule 7 to file four copies of the transcript and appeal provisions of the Criminal Code apply (s. 515 or book and deliver one copy of each to the respondent 522) except that those powers are exercised by a within 60 days after filing the notice of appeal. The form judge of the Court of Appeal (s. 679(7.1)). and content of transcripts and appeal books is addressed [§9.12] Extension of Time to File in Rule 8 and Forms 4 and 5. Counsel are directed by Rule 9 to attempt to reduce the size of the transcript and appeal book by excluding exhibits and/or evidence that Extension of time has already been referred to in §9.02 is unnecessary for a proper hearing of the appeal. Writ- and §9.09. ten confirmation of the request for transcripts and appeal Rule 3 of the Criminal Appeal Rules, 1986 provides that books must be filed with the registry within four weeks a person who wishes to appeal against conviction, sen- of the notice of appeal being filed. See Criminal Convic- tence, or conviction and sentence shall, within 30 days tion/Acquittal Appeals Timeline (Criminal Practice Di- after the imposition of the sentence, commence the ap- rective, 13 January 2014). peal by filing an original and four copies of the notice of The time required to prepare and reproduce transcripts appeal. If the prosecutor wants to appeal, the notice of and appeal books sometimes makes it impossible to appeal must be filed within 30 days after the pro- comply with the 60-day period set out in Rule 7. While nouncement of the order under appeal (Rule 4). The some delay will be forgiven in the filing of this material, Crown must also file five copies of the notice of appeal an appellant who fails to file transcripts and appeal (in Form 3). books within a reasonable time risks facing an applica- If the 30 days expires, the appellant must file a notice of tion by the respondent to dismiss the appeal for want of application to extend time to file the notice of appeal. prosecution (Rule 13(1)), or a registrar’s reference Granting an extension of time is a matter within the (Rule 13(3)), which obliges counsel to appear before the court’s discretion. The appellant must establish “special court or a justice to explain the failure to diligently pur- circumstances” for the court to grant an extension. The sue the appeal or comply with the filing requirements set appellant must file an affidavit establishing a bona fide out in the Criminal Appeal Rules, 1986. intention to appeal within the appeal period and setting For relatively straightforward sentence appeals, the out a meritorious basis for the appeal. The affidavit Court of Appeal registry will typically order the neces- should generally explain reasons for the delay (R. v. sary transcripts so long as the proceedings are not undu- Roberge, 2005 SCC 48; R. v. Scheller (No. 2) (1976), 32 ly lengthy. However, for sentence appeals involving C.C.C. (2d) 286 (Ont. C.A); R. v. Smith, [1990] B.C.J. more protracted proceedings, or appeals against both No. 2933 (C.A.)). When the delay in filing the notice of conviction and sentence, responsibility for furnishing the appeal is systemic and flows from necessary steps taken necessary transcripts will fall to the appellant. by Legal Aid BC to determine whether to fund the appeal, an affidavit in support of the extension application [§9.14] Factums may be obtained from Legal Aid BC’s Appeals Coordi- nator. Prepare a notice of application to extend time in Factums must be prepared in Form 6. The factum of an Form 7. appellant should be bound in a buff-coloured cover. The An application for extension of time may be made on respondent’s factum should be bound in a green- two clear days’ notice (s. 678(2) of the Criminal Code coloured cover. The registry will not accept a factum and Rules 16 and 17). The application for extension may longer than 30 pages without the approval of the regis-

Criminal Procedure 131 trar or a judge of the court. Absent exceptional circum- [§9.17] Raising a New Issue on Appeal stances, factums should not exceed 30 pages: Chief Mountain v. Canada (A.G.), 2012 BCCA 69 (Cham- During the trial, counsel should keep in mind that the bers). See Citation of Authorities (Civil and Criminal failure to raise a point or make an objection before the Practice Directive, 30 May 2013) for information about trial judge may be a factor weighed later by the appellate how to cite authorities. Failure to file factums within the court in dismissing an appeal (R. v. Sherman, 1979 Can- time period set out in the Rules may, as with delay in LII 2952 (B.C.C.A)). Counsel should be particularly filing transcripts and appeal books, trigger application of careful about issues of law, especially under the Charter. Rule 13. Generally, new issues cannot be raised for the first time on appeal. This includes applications to exclude evi- The appellant’s factum must be filed within 16 weeks of dence, questions of statutory interpretation and constitu- the date the transcripts and appeal books are filed. If the tional challenges to the validity of the legislation. See R. appellant or appellant’s counsel misses the factum filing v. Vidulich (1989), 37 B.C.L.R. (2d) 391 (C.A.); R. v. deadline, counsel will be expected to appear at a “com- Tomlinson, 2009 BCCA 196, R. v. Lilgert, 2014 BCCA pliance hearing,” usually scheduled for one week after 493, and R. v. Gill, 2018 BCCA 144. the due date for the filing of the appellant’s factum, to canvass reasons for the delay and a revised filing sched- [§9.18] The Hearing of the Appeal ule. The respondent’s factum is to be filed within 18 weeks of the appellant’s factum being filed and not 1. Appeals From Conviction less than 6 weeks before the hearing date. A reply factum (if any) is filed not less than five weeks before the Section 686 states that counsel for the appellant hearing. See Criminal Conviction/Acquittal Appeals should be prepared to demonstrate the error under Timeline (Criminal Practice Directive, 13 January 2014). appeal: the trial court erred so that the verdict is unreasonable or cannot be supported by the evidence, For sentence appeals, arguments are limited to 8 pages or the trial judge erred on a point of law, or there and are filed three weeks (appellant) and two weeks (re- was a miscarriage of justice. These errors are ex- spondent) before the hearing date; see the practice di- plained below in further detail. rective entitled Sentence Appeals (Criminal Practice Di- rective, 11 March 2016) for the correct form, content and (a) Verdict is unreasonable or cannot be supported filing rules for abbreviated written argument. by the evidence

[§9.15] Abandonment The proper test is “whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered” (R. v. Yebes An appellant may abandon an appeal by informing the (1987), 36 C.C.C. (3d) 417 (S.C.C.); Biniaris). court in person, or through counsel, of an intention to When applying the test, an appellate court abandon the appeal, or by signing and filing a notice of must engage in a thorough re-examination of abandonment in Form 11. When the appellant (as op- the evidence and bring to bear the weight of its posed to counsel) personally signs the notice of aban- judicial experience to decide whether, on all donment, the appellant’s signature must be witnessed the evidence, the verdict is a reasonable one. It (Rule 14). is not sufficient for the reviewing court to [§9.16] Setting Down the Hearing simply take a different view of the evidence than the trier of fact. Nor is it sufficient for the appeal court to refer to a vague unease or a For appeals against conviction or acquittal, see Criminal lingering doubt based on its own review of the Conviction/Acquittal Appeals Timeline (Criminal Prac- evidence. An appeal court, if it is to overturn tice Directive, 13 January 2014). the verdict, must articulate the basis upon This directive provides that upon filing of transcripts and which it concludes that the verdict is incon- appeal books, the registrar will contact counsel to ar- sistent with the requirements of a judicial ap- range an agreed hearing date falling within a year from preciation of the evidence. the date the notice of appeal was filed. In practice, hear- (b) Trial judge erred on a point of law ing dates for conviction appeals are often fixed after the appellant’s factum has been filed. Questions of law could include the following: Appeals from sentence are generally set down once the  interpretation of a statute (R. v. Audet, registry has received the sentencing transcript. If a very [1996] 2 S.C.R. 171); short sentence is being appealed, it can usually be set  application of a legal rule or principle down for hearing without significant delay. (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748);

Criminal Procedure 132  instructions to a jury (R. v. Lifchus, [1997] held before a judge without a jury or before a 3 S.C.R. 20, R. v. Russell, [2000] 2 S.C.R. Provincial Court judge. If the Court of Appeal 731, R. v. Avetysan, 2000 SCC 56); or ordered the new trial to be held before a court composed of a judge and jury, the accused may,  failure to provide sufficient reasons for with the prosecutor’s consent, elect to have the trial judgment (R. v. Sheppard, 2002 SCC 26; heard before a judge without a jury or before a R. v. Gagnon, 2006 SCC 17, R. v. R.E.M., Provincial Court judge (s. 686(5) and (5.1)). 2008 SCC 51). (c) Miscarriage of justice 2. Appeals From Acquittal Categories of what constitutes a miscarriage of Appellate courts have “read in” the equivalent of justice are still open. A miscarriage of justice s. 686(1)(b)(iii) to appeals by the Crown from ac- may include a misapprehension of evidence quittals, even though the Criminal Code is silent on (R. v. Morrissey (1995), 97 C.C.C. (3d) 193 this point (R. v. Vezeau (1976), 28 C.C.C. (2d) 81 (Ont. C.A.)) or errors in the trial process af- (S.C.C.); R. v. Graveline (2006), 207 C.C.C. (3d) fecting trial fairness. 481 (S.C.C.)). The Crown must demonstrate that, but for the error of law, the verdict would not nec- The court has an unfettered right on appeal from essarily have been the same. There must be a rea- conviction to order a new trial or direct that a ver- sonable degree of certainty that the error was mate- dict of acquittal be entered (s. 686(2)). Generally, rial to the verdict: see R. v. George (2017), 349 where the verdict is found to be unreasonable or C.C.C. (3d) 371 (S.C.C.). unsupported by the evidence, the remedy is an acquittal. Generally speaking, the Crown is not permitted to change its positon on appeal from an acquittal by The court has the power to dismiss an appeal where raising a new legal argument that was not advanced there is an error on a point of law, if no substantial by the prosecution at trial: R. v. Barton, 2019 SCC wrong or miscarriage of justice has occurred 33; R. v. Suarez-Noa (2017), 350 C.C.C. (3d) 267 (s. 686(1)(b)(iii)). In such a case, the Crown must (Ont. C.A.). satisfy the court that there is no reasonable possibility that the verdict would have been different had The court has the power to enter a guilty verdict ra- the error not been made (R. v. Bevan (1993), 82 ther than order a new trial when, in its opinion, the C.C.C. (3d) 310 (S.C.C.)). accused should have been found guilty but for the error in law, but cannot do so if the appeal is from The court also can dismiss an appeal if there is a an acquittal by a jury (s. 686(4)(b)(ii)). The court procedural error, including one which may go to ju- will not enter a guilty verdict on a Crown appeal risdiction (see s. 686 (1)(b)(iv) and R. v. Cloutier from an acquittal unless it is satisfied that all of the (1988), 43 C.C.C. (3d) 35 (Ont. C.A.)). factual findings necessary to support a verdict of The Court of Appeal also can dismiss the appeal guilty have been made. See R. v. Cassidy (1989), 50 and substitute a conviction for an included offence C.C.C. (3d) 193 (S.C.C.). When a guilty verdict is if an appeal would otherwise be allowed entered on appeal, the Court of Appeal can either (ss. 686(1)(b)(i) and 686(3)). pass sentence or remit the case to the trial court with directions that sentence be imposed by the trial In circumstances where a trial court has convicted court. on one count and entered a conditional stay on another count by reason of the application of the rule 3. Appeals From Sentence against multiple convictions in R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.), an appeal Section 687 sets forth the jurisdiction of the court court can remit the stayed count back to the trial with respect to appeals from sentence. The Supreme court so the trial court can enter a conviction on the Court of Canada has affirmed a highly deferential “Kienapple” charge. This will allow the appellant to standard of review on appeals from sentence. Ab- then appeal that conviction if desired. A court of sent an error in principle, which also had an impact appeal has jurisdiction to make such an order even on the sentence imposed, an appellate court can on- where the Crown has not appealed the conditionally ly intervene to vary a sentence imposed by a sen- stayed count (R. v. P. (D.W.) (1989), 49 C.C.C. (3d) tencing judge if the sentence is “clearly unreasona- 417 (S.C.C.) and ss. 686(2) and (8)). ble” or “demonstrably unfit” (R. v. Lacasse, 2015 SCC 64; R. v. Agin, 2018 BCCA 133; Friesen). When the Court of Appeal orders a new trial, the new trial shall be held before a court composed of a The Court of Appeal does not have jurisdiction to judge and jury if the accused requested this in their hear appeals on a summary conviction matter unless notice of appeal. If the accused does not make the it involves a question of law alone. Quantum of sen- request in the notice of appeal, the new trial will be tence is not a question of law alone.

Criminal Procedure 133 Under Rule 12, the court may order that a post- Under the Criminal Code, the Supreme Court of Canada sentence report be prepared relating to a person in will hear only appeals on questions of law alone. How- respect of whom an appeal against sentence is ever, under s. 40(1) of the Supreme Court Act, issues of outstanding. The court is often reluctant to order a mixed law and fact may be reviewed with leave. post-sentence report given that the appeal typically An accused/appellant has an appeal as of right to the Su- deals with fitness at the time the sentence is preme Court of Canada in the following circumstances: imposed (R. v. Radjenovic, 2013 BCCA 131). (a) where the conviction has been affirmed by the If a probation or conditional sentence order has Court of Appeal but a judge of the court has dis- been suspended pending appeal, the Court of Ap- sented on any question of law; peal must take into account any conditions of an undertaking or recognizance and the period during (b) where an acquittal is set aside by the Court of Ap- which they were imposed in determining whether to peal but a judge of the court has dissented on any vary a sentence (s. 683(7)). question of law;

[§9.19] Miscellaneous Appeal Provisions (c) on any question of law where the Court of Appeal has unanimously set aside an acquittal and entered a verdict of guilty; and Part XXI of the Criminal Code covers several matters that have not been referred to in this material. For exam- (d) where a verdict of not criminally responsible on ple, s. 682 outlines the court’s power to require a report account of mental disorder (NCRMD) or a verdict from the trial court judge (R. v. E. (A.W.) (1993), 83 of unfit to stand trial is affirmed by the Court of C.C.C. (3d) 462 (S.C.C.)). The section also outlines Appeal or a verdict of guilty is entered by the Court what ought to be included in the appeal books (see also of Appeal under s. 686(4)(b)(ii) on any question of Rules 7–10 regarding preparing and filing appeal books law on which a judge of the Court of Appeal dis- and factums). sents (ss. 691–692). Section 683 outlines the Court of Appeal’s other powers, Otherwise, all appeals are dealt with by application for including the power to admit fresh evidence (R. v. Palm- leave to appeal. er and Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.) and The Attorney General may appeal as of right to the Su- R. v. Stolar (1988), 40 C.C.C. (3d) 1 (S.C.C.)). preme Court of Canada where a conviction is set aside Section 688 addresses the right of an appellant to attend by the Court of Appeal, where a Crown appeal from an proceedings on an appeal, as well as the way in which acquittal or order defined in s. 676(1)(b) or (c) or a ver- the appellant will appear (i.e. by audioconference, per- dict of NCRMD or unfit to stand trial is dismissed and, sonally, or by videoconference). in all of these scenarios, a judge of the Court of Appeal has dissented on any question of law. Otherwise, leave Sections 685(1) and (2) provide that the court may dis- to appeal is required (s. 693). miss an appeal summarily where a notice of appeal does not show a substantial ground of appeal or where the The Supreme Court will not hear appeals concerned appeal should have been filed in another court. solely with the quantum of sentence. In rare instances, the court will hear appeals from sentence based on con- Under s. 684, the Court of Appeal or a judge of the stitutional grounds, the jurisdiction to impose a sentence, Court may assign counsel to act on behalf of an unrepre- or the interpretation or application of the fundamental sented party to an appeal if it appears desirable in the principles that guide sentencing proceedings (R. v. Gar- interests of justice that the accused have legal assistance diner (1982), 68 C.C.C. (2d) 477 (S.C.C.)). and if the accused doesn’t have sufficient means to obtain that assistance (R. v. Baig (1990), 58 C.C.C. (3d) Applications for leave to appeal are prepared in written 156 (B.C.C.A.)). See Applications for a Court- form. They must be filed within 60 days from the pro- Appointed Lawyer Under Section 684 of the Criminal nouncement of the Court of Appeal judgment. The Su- Code (Criminal Practice Directive, 19 September 2011) preme Court of Canada may order an oral hearing on the for the procedure to be followed. The Supreme Court of application for leave to appeal, but this is rare. If leave to Canada or a judge of that court has jurisdiction to make appeal is granted, the appellant must file a notice of ap- the same order on appeals to that court (s. 694.1(1)). peal within 30 days.

[§9.20] Appeals to the Supreme Court of In cases of appeals as of right, the appellant must file a Canada notice of appeal within 30 days after the judgment appealed from (s. 43 and ss. 58-60 of the Supreme Court Act and Rules 25–28, 32 and 33–45 of the Rules of the Appeals to the Supreme Court of Canada are governed Supreme Court of Canada). by ss. 691–695 of the Criminal Code, the Supreme Court Act, R.S.C. 1985, c. S-26, and the Supreme Court of Canada Rules.

Criminal Procedure 134 An applicant who is appealing conviction to the Su- preme Court of Canada may apply for bail pending appeal, and s. 679 of the Criminal Code applies. Anyone commencing an appeal in the Supreme Court of Canada should carefully read the Supreme Court Rules. These Rules, especially those pertaining to time limits, are usually strictly enforced.

[§9.21] Prerogative Writs

Part XXVI of the Criminal Code governs extraordinary remedies such as certiorari, prohibition and mandamus in superior courts. Such writs can be used to remedy errors in jurisdiction made in the Provincial Court, but the grant of these remedies is discretionary. It is unlikely that extraordinary relief will issue if an appeal is available as an alternative (s. 776 of the Criminal Code and Cheyenne Realty Ltd. v. Thompson (1974), 15 C.C.C. (2d) 49 (S.C.C.)). The replacement of the stated case provisions with the present provisions for summary appeal on transcript or agreed statement of facts has no doubt narrowed the scope for prerogative writs to review Provincial Court decisions on summary matters. Under s. 830, one can now appeal a summary conviction on the basis of a “refusal or failure to exercise jurisdiction.” The tendency of the courts is to reduce the scope and exercise of jurisdiction on prerogative writs in trial situations, leaving errors in the lower courts to be dealt with as grounds of appeal. Applications for prerogative relief can delay and fragment the holding of trials and may prove academic and unnecessary if the result of the trial is favourable to the side aggrieved by the error. Prerogative writs cannot be used to review decisions of superior courts. Decisions of the Supreme Court of Brit- ish Columbia, therefore, cannot be reviewed by prerogative writ. Review by prerogative writ of rulings on preliminary inquiries is also very limited as few such rulings will amount to a denial of natural justice or a loss of jurisdiction. An order for relief in the nature of certiorari is available to quash a committal for trial in the absence of any evidence upon which the committing justice could have determined that the evidence was sufficient to put the accused on trial (R. v. Skogman, [1984] 2 S.C.R. 93). Applications for relief in the nature of mandamus, prohibition, certiorari, and habeas corpus are further governed by the Criminal Rules of the Supreme Court of British Columbia. The “writs” have been abolished and replaced by “orders” in the nature of certiorari, and the like. Proceedings are commenced by serving and filing a notice of application in Form 1. Note the limitation period of 6 months for certiorari in Rule 4(2).

Criminal Procedure