CAUTION The Professional Legal Training Course provides the Practice Material to users as an aid to developing entry level competence, with the understanding that neither the contributors nor the Professional Legal Training Course are providing legal or other professional advice. Practice Material users must exercise their professional judgment about the accuracy, utility and applicability of the material. In addition, the users must refer to the relevant legislation, case law, administrative guidelines, rules, and other primary sources. Forms and precedents are provided throughout the Practice Material. The users also must consider carefully their applicability to the client’s circumstances and their consistency with the client’s instructions. The Law Society of British Columbia and the Professional Legal Training Course can accept no responsibility for any errors or omissions in the Practice Material and expressly disclaim such responsibility. 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.