GENERAL OVERVIEW AND PRELIMINARY MATTERS

THE SOURCES OF CRIMINAL LAW

Offences: Criminal offences are created by statute.
o Exception – contempt of court.
⁃ Common Law cannot be used to create offences – b/c of concerns related to principles of legality, and b/c
criminal offences should be clear, certain, and should pre-exist the act being prosecuted.
Section 9(a) – No person shall be convicted or discharged under s.730(guilty) of an offence at CL.
Frey v Fedoruk – Held – the peeping was “not otherwise criminal and not falling within any category of
offenses defined by the Criminal Law” without more eg. assault. ‘It is up to Parliament, not the courts, to
make a course of conduct criminal’.

Defences: CL defences are available under criminal law and can still be created by the courts.
⁃ The CL can deeply influence the way that statutory criminal offences are interpreted.
Section 8(3) – Every rule and principle of CL that justifies or excuses an act or a defends a charge
continues in force and applies to CC offences.
Levis v Tetrault – SCC recognized the common law defence of “official induced error of law”.
R v Jobidon – Fight outside a bar, Jobidon beat contender so badly he died. Held – The SCC held that
consent cannot be used as a defence for assault which may cause “serious hurt or non-trivial bodily harm”.
Consent would be a valid defence where the harm was trivial or where it is part of a socially valuable activity,
such as sports. minority (Sopinka) held that the victim Haggart could never have consented to such an
beating.

POWER TO CREATE CRIMINAL OFFENCES

Federal Government
⁃ Jurisdiction to create non-criminal offences (regulatory offences) and use jail to enforce these offences.
⁃ Only government able to create “criminal” offences (true crimes)  s. 91(27)
⁃ The procedure during criminal hearings, is governed by Federal rules and by the common law.
R v Malmo-Levine – The criminal law power, they say, includes the protection of vulnerable groups. Thus
the government is able to control activities for the protection of drug users and society. The SCC rejected a
constitutional challenge of the criminalization of marijuana.

Provincial Governments
⁃ Jurisdiction to create non-criminal offences (regulatory offences) and use jail to enforce these offences.
⁃ Provinces have jurisdiction over the administration of justice within the province  s.92(14)

Charter
⁃ The Charter imposes limits on the jurisdiction of all governments  subject to s.1 “reasonable
limitations” clause and the seldom-used s.33 “notwithstanding” clause.
⁃ The Charter can be used by the courts to invalidate offences created by Parliament, and strike down
rules of criminal procedure. Uncommon though.
R v Heywood – H convicted for sexual assault of children. This conviction made him subject to section
179(1)(b), which prevented certain convicted individuals from loitering. He was caught “loitering” at a
playground. Held - The SCC found that section 179(1)(b) for vagrancy was overbroad and thus violated
section 7 Charter and could not be saved under section 1. The offence was struck down.
R v Oakes – Oakes caught with vials of hash oil as well as cash. Charged with trafficking. Section 8 of the
Narcotics Control Act provided for a shift in onus onto the accused to prove that he was not in possession
for the purpose of trafficking. Held – The reverse onus created by the presumption of possession for
purposes of trafficking violated the presumption of innocence (s. 11(d)) and could not be justified under s. 1.
The rule of criminal procedure was struck down.
⁃ The Charter can also be used as an interpretive tool. Courts to permit constitutional values to influence
 the way statutes are interpreted.
R v Labaye – The Charter changed the criminal concept of indecency through a progression of cases
described therein. Held – The Court approved of the harm-only approach and wrote that “harm or significant
risk of harm is easier to prove than a community standard” of decency. The Court went on to establish more
guidelines as to measure harm. The SCC’s decision upheld consensual group sex and swinging activities in
a club and alleged bawdy-house as being consistent with personal autonomy and liberty.

Rules of Practice (not examined)

⁃ The Charter’s largest impact on criminal procedure has been in creating constitutional procedural
protections.
⁃ Section 482 Criminal Code – Permits courts to create rules of practice to govern administrative
mechanics of practice in criminal courts.
R v Gundy – If accused does not challenge admissibility of Breathalyzer results on the basis that Charter
rights were violated, the Crown is not required to establish the officer had reasonable and probable grounds
to make the demand. Reasonable and probable grounds - objective and subjective test. Where grounds
depend upon a “fail”, Crown must prove that officer reasonably believed that he was using an approved
device.

THE CLASSIFICATION OF OFFENCES

Indictable Offences – Generally more serious offences. Usually carry higher maximum penalties.
⁃ Election – For indictable offences, the accused may choose to have a trial by superior court judge and
jury, superior court judge alone or by provincial court judge.
⁃ Section 469– lists a series of offences that must be tried by a judge and jury, so the accused is given no
election.
⁃ Section 553– lists a number of offences that will be tried in provincial court, so the accused is given no
election.
⁃ Section 471 – trial by jury is compulsory for all indictable offences, unless some other Code provision
creates an exception to that requirement.
Summary Offences – Generally less serious. Mode of trial – court of criminal jurisdiction.
⁃ S.768(2) – have a 6 month limitation from when the offence was committed.
⁃ Never greater than 18 month term of imprisonment.
⁃ Only provincial jail.
Hybrid Offences – the prosecutor has the right to elect whether to treat the offence as indictable or
summary.
⁃ Until the prosecutor elects, hybrid offences are treated as indictable offences.
⁃ In every statutory provision that creates an offence, Parliament classifies the offence.
⁃ The classification has implication for the penalties that are possible and the procedure that will be used
(including the mode of trial).
⁃ Classification of offences affects:
o Jurisdiction of the courts over the offence.
o The Scope of police powers
o Procedures for compelling appearance and interim release
o Manner of proceedings in court
o Statute of limitations – indictable = none; summary = 6 months from completion of offence.
o Sentencing – indictable = max. imprisonment exceeds 2 yrs; summary = max. 6 months or fined
$2,000 or both (unless higher penalty prescribed by Parliament).
o Jail – offender sentenced more than 2 years = federal penitentiary (indictable); less than 2 years =
provincial jail (indictable or summary).
o Appeal – Indictable = court of appeal; summary = superior court of the province.

INTERPRETING CRIMINAL PROVISIONS

Interpreting the criminal code is similar to interpreting other statutes. However one must be aware of the
following considerations:
⁃ Definitions – The Criminal Code has definitions for many of the terms used, but they are not always easy
to locate.
o Section 2 Criminal Code – contains definitions that apply through the code.
o Parts – the code is divided into Parts - at the beginning of each Part there will be a definition
section that applies solely to that Part.
o Provision - Sometimes definitions are found in or around the relevant statutory provision to be
interpreted.
⁃ Strict Construction – Historically, criminal statutes were interpreted strictly in favour of the liberty of the
accused. The accused would get the benefit of the doubt or ambiguity in matters of interpretation.
This principle continues to apply, but has been heavily modified by the purposive interpretation.
o R v Pare – See below “purposive interpretation”.
⁃ Purposive Interpretation – Canadian law makes liberal use of purposive interpretation, in which the
language that is used in the provision being construed is interpreted harmoniously with the statute
as a whole, with the underlying purpose of the provision in mind so as to best accomplish its
underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage
cannot be done to the language employed.
o R v Pare – Pare challenged the provision of the first-degree murder law that states that ‘murder is
when a person kills another “while committing” an indecent assault’. In Pare’s case,
indecent assault concluded on a boy before killing him. He claimed he did not fall under
the language of the law. The court held that before using strict interpretation of the
law, a purposive approach is necessary. Under this approach, the purpose of the law
when enacted was to include cases where there is a break between the assault and the
murder, and as a result, the law intended “while committing” to be a continuous sequence
of events forming a single transaction. Pare = guilty.
⁃ French/English – Federal laws, like the Criminal Code are passed in both of Canada’s official
languages.
o Each version is equally authoritative.
o Ambiguities in one language can be clarified by the other.
o R v J(D) - ??
⁃ The Charter – can have an important influence on the way statutory provisions are interpreted b/c of the
presumption that statutes were intended to be constitutionally valid.
o R v Labaye – See above.
o Canadian Foundation for Children & the Law v Canada (The “spanking” Case) – The foundation
argued against section 43 of the CC (corrective force against children if reasonable under
the circumstances), on the basis of vagueness because children under two cannot be
corrected, and children over 12 will only be harmed by corrective force. The court held
that the law was not vague or overbroad, because it delineated who was allowed to use
the force, why the force should be used, and the use of the word reasonable is not
vague, as it is an essential element of the law, and is also an objective test of
conduct which is not vague as such.
o Arbour J: However, while vagueness does not “require that a law be absolutely certain; no law can
meet that standard” However, while discretion is inevitable, a law will be too vague if “the
legislation has given a plenary discretion to do whatever seems best in a wide set of
circumstances”
o Arbour J – “After a comprehensive review of existing s. 43, emphasizing the number of acquittals
she decided that the phrase “reasonable under the circumstances” in s. 43 violated the
children’s security of the person interest in s. 7 and that the principle was not too vague to
be in accordance with fundamental justice.
 THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE

STEP 1 – What is the Question?

⁃ Who are you? Crown or accused.
⁃ Straighten out facts and timeline.
STEP 2 – Go to the Code – Elements of the Offence
⁃ Statutory origin (s. 9)
⁃ Language? Duty? Fault?
⁃ What does the Crown need to prove?
o In order to obtain a conviction for a criminal or regulatory offence the crown must always prove
beyond a reasonable doubt (BARD) that the accused committed the prohibited act (R v
Lifchus).
⁃ All elements of the offence must be present at the same time or there will be no crime (R v Williams).

THE ACTUS REUS

3 COMPONENTS Of ACTUS REUS –
1) WHAT IS THE ACT/OMISSION ID’ed BY THE STATUTE,
2) CAUSATION,
3) VOLUNTARINESS
STEP 3 – Is the offence an act or omission?
⁃ Always start with “was there an act then” go on to was there an omission.
If the offence is an Act:
1) Read the Code and find out if it is a positive act or omission
2) Once you read the code, check the section for defining terms – see s. 2 definitions
3) Read the section for what is required for it to be an act – ie. s.348(1)(a) – offence of break and enter with
intent, Must ‘break’ and ‘enter’ a ‘place’ as defined in Code with mens rea.
4) Is it possible to construe act of the accused, being kind of act described in the provision.
R v D’Angelo – “Public swimming area” includes a swimming pool open to members of a building complex.
If the offence is an Omission:
Whether an offence can occur by “omission” is a question of construction. To be guilty by omission:
1) the offence must contemplate guilt for omissions
2) the accused must be placed under a legal duty to act either by the provision charging him or by some
incorporated provision
3) the omission in question must be a failure to fulfil that legal duty

(i) You need to find a legal duty to act recognized by criminal law (statute or CL) AND
(The charge for the omission will likely come from 1 st group. But Crown will try to anchor the duty in CL, or
CC (2nd group)
Some Criminal Code Provisions criminalize the Other CC provisions impose a legal duty to act,
failure to act: and criminalize breach of this provision:
 Section 215 (providing necessities of life)
 Section 219 (criminal negligence)  Section 216 (undertaking to administer medical
 Section 180 (2) (common nuisance) assistance)
 Section 215 (failure to provide the necessities of  Section 217 (undertaking to do an act)
life)  Section 217.1 (organization liability)
 Section 222 (manslaughter)  Section 252(1) (legal duty to stop at scene of
accident)

Statutory Duty to Act

⁃ S.215 defines duty to provide necessities to those “under their charge”. CL broadly interpreted “under
 their charge” to include elderly and ill parent (R. v. Peterson son neglected old dependent father).
o Test – Would a reasonably prudent person, in charge of another, reasonably foresee that failure to
provide necessaries of life would endanger health or life of person.
⁃ An “undertaking” must be a binding commitment, upon which reliance is reasonably placed, for legal duty
to arise in s.217. (R. v. Browne - court found no undertaking of legal duty. Mere expression of
words indicating a willingness to do an act cannot trigger a legal duty).

CL Duty to Act
⁃ Majority created CL duty to ID yourself to police when caught committing an offence (R. v. Moore - M
biked through red light, committed traffic offence). Failure to ID – obstruct officer in performance of
duties.

***IF THERE IS A BREACH OF DUTY***

STEP 3A – The Act of Possession:

⁃ At times, part of the actus reus of an offence has an inherent mental element to it and the element of
“possession”.
⁃ This illustrates that the divide between actus reus and mens rea is not a solid one.
For the purposes of possession offences, unlawful possession requires = knowledge, consent and
the ability to exercise control.
Section 4(3):
CONSTRUCTIVE POSSESSION - (a) A person has anything in possession when he has it in his personal
possession or knowingly:
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit
of himself or of another person, and
JOINT POSSESSION - (b) where one of two or more persons, with the knowledge and consent of the rest,
has anything in his custody or possession, it shall be deemed to be in the custody and possession of each
and all of them.
Section 2 Controlled Drugs and Substances Act – “Possession” means w/in the meaning of subsection
4(3) of the CC.
MANUAL POSSESSION
R v York – Y found stolen goods in his warehouse and put them in his truck to dispose of them. He was
charged with possession of stolen goods. For Crown to prove possession, they must establish – 1) manual
or physical handing of the prohibited object, 2) knowledge, and 3) control. Personal possession is
established where an accused person exercises physical control over a prohibited object with full knowledge
of its character, however brief the physical contact may be, and where there is some evidence to show the
accused person took custody of the object willingly with intent to deal with it in some prohibited manner.The
accused, having only become aware that the goods were stolen, panicked and drove them away from his
premises. He was not guilty of this offence although he failed to inform the police. His conduct was
inconsistent with any intention to retain or deal with the goods.
CONSTRUCTIVE JOINT POSSESSION
R v Marshall – Passing drugs around in the car, no control over the other people. Passing joint close to
consent. For the purpose of possession offences; possession = control. Not guilty.
R v Terrence – Accused passenger in stolen car. Joyride with buddy driving. Cannot be guilty for simply
being in physical possession of the stolen goods. There is a necessary mens rea element too.
POSSESSION OF MATERIALS FOUND IN A RESIDENCE
R v Pham – Constructive possession requires non-quiescent knowledge and a measure of control. To
constitute joint possession, there must be knowledge, consent, and a measure of control on the part of
the person deemed to be in possession.
STEP 3B – Consent (as an Element of Actus Reus)
⁃ Often the question of absence of consent by the victim is an important actus reus condition that must be
present for offences to occur.
⁃ Subjective test. Burden on the Crown. If the Crown can prove that there was consent, the Act is no longer
unlawful – renders an unlawful act lawful.
R v Jobidon – Fight outside a bar, J beat contender so badly he died. Held – The SCC held that consent
cannot be used as a defence for a criminal act such as assault which may cause “serious hurt or non-trivial
bodily harm”.
R v Cuerrier – C had unprotected sex with 2 women and didn’t disclose HIV status. Charged with
aggravated assault. Held –Failure to disclose HIV status constituted fraud and a prosecutable crime
(aggravated assault). Women’s consent to unprotected sexual activity was invalid b/c obtained by fraud.
Required all criteria to prosecute on these grounds:
⁃ (1) The accused committed an act that a reasonable person would see as dishonest,
⁃ (2) There was a harm, or a risk of harm, to the complainant as a result of that dishonesty,
⁃ (3) The complainant would not have consented but for the dishonesty by the accused.
R v Ewanchuk – E made sexual advances on an interviewee. She said no, but he continued, and she failed
to object further. Argued “implied consent”. Held – Held that there was no defence of “implied consent” to
sexual assault. Actus Reus: 1) touching – objective, 2) sexual nature of the contact – objective, 3) absence
of consent – subjective. Look at complainant’s subjective internal state of mind. Mens Rea: 1) intention to
touch, 2) knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person
touched. Consent is subj & no defence of implied consent. Limits on honest but mistaken belief of consent -
silence, passivity or ambiguous conduct doesn’t constitute consent.
STEP 4 – If it was an Act/Omission, was it Voluntary or Willed?
⁃ Voluntariness is defined as the mental requirement of the actus reus (R. v. Parks) it is the voluntary
movement of your body.
⁃ There can be no actus reus unless the Act described by the offence must be “voluntary” in the sense that
it must be the willed act of the accused. (R. v. King)
⁃ Involuntariness can occur as a result of automatism, sleepwalking, intoxication, OR, bc of external
situation where you had no choice – speeding to the hospital.
Voluntariness cases:
Examples associated with mental disorder Not associated with mental disorder
⁃ Lucki – driving on slippery rd in wrong lane – no
⁃ Rabey – argues non-insane automatism caused
AR, NG (court confuses AR+MR)
by psychological blow from mean letter
⁃ Wolfe – strikes with phone, but reflexsive action
(fails)
(court confuses AR+MR)
⁃ Parks – sleepwalker kills inlaws – gets non-
⁃ Ryan – robbery to win lottery case – reflexive
insane automatism (today would be insane)
action not involuntary if you voluntarily
⁃ Stone – husband stabs 47 times – “swoosh
create dangerous situation
effect” – test for inane vs. Non-insane auto

** This is the foundation for the automatism defence **

STEP 5 – If the Act was Voluntary was there Causation?
⁃ Where the relevant offence prescribes a “consequence” that must occur before the offence is complete.
o Issue arises most frequently in manslaughter, murder, assault causing bodily harm, criminal
negligence causing death – where death occurs later on.
⁃ Crown must prove that the accused made a significant contribution to the consequences that occurred
BARD (of the offence they are being charged under).
⁃ History of causation One-liner:
o The law has evolved in this area from the traditional two-step test (factual, legal), to Smithers “’a’
cause beyond the diminimous range”, to today’s standard from Nette ”a significant
 cause”. As the threshold for causation increases, the Crowns’ job gets more difficult (ie:
smithers was good for crown, nette is good for defence).
R v. Williams – guy finds out he has AIDS – no sufficient causation bc we don’t know if it was transmitted
b4 or after learning he was infected. Significant cause is hard to prove BARD if there are multiple parties,
intervening acts, remoteness. Therefore, if causation is not proved, the accused cannot be convicted of an
offence that requires his act to produce a prohibited consequence.
R v Menezes – Causation is a two-stage analysis, requiring “factual causation” and “legal or imputable
causation”.
R v Nette – N admitted to an undercover officer that he had robbed and killed a 95 year old widow. Held –
The SCC upheld the Smithers test for causation in a criminal charge for manslaughter or murder.
The test for causation for second degree murder need not be expressed as “a contributing cause of
death, outside the de minimis range”. Instead it would be more preferable to use positive terms
such as “significant contributing cause” to the death.
In the case of first degree murder, under s.231(5) code (crime of domination), a jury must also consider the
additional R v Harbottle “a substantial causation” standard but only after finding the accused guilty of
murder. Higher standard of responsibility of imputable cause is required to secure a first-degree murder
conviction. Higher standard of responsibility of imputable cause is required to secure a first-degree
murder conviction.
***Harbottle apply only to 1st degree murder, whereas Smithers all other cases of murder.***

The test for causation for homicide is whether the acts of the accused were a significant contributing cause
to the death (R v Nette).
Both Menezes and Nette illustrate how must imputable causation principles explain why blame can be
assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil
liability.

STEP 6 – Was there an intervening cause that broke the chain of Causation?
⁃ Is the original cause continuing to operate? Or was the intervening cause so overwhelming that it made
the initial act part of the history of events (Smith)?
⁃ Nette – was it a significant contribution?
⁃ Nette thin skull – take your victim as you find them
⁃ Menezes – Drag racing, accused had backed off, deceased continued, crashed and died. Held – not
guilty of criminal negligence causing death, guilty of dangerous driving. Kids decision to keep
driving WAS intervening cause. Deceased, independent agent, chose to maintain excessive
speed, death result of independent action.
⁃
Make sure that all elements of the act are PROVEN BEYOND A REASONABLE DOUBT!
Once you have established the Act, you must move on to the MENS REA.
STEP 7 – Did the Accused have the requisite Mens Rea?
⁃ Mens Rea is the mental elements of the offence. Usually referred to as the “subjective” state of mind of
the accused.
⁃ However, there are now offences that have an “objective” mens rea (ie. negligence).
o Objective mens rea is determined according to what a reasonable person in the position of the
accused would have known or foreseen.
 Interpretation of a true crime will be interpreted as requiring subjective mens rea, unless it is clear
that Parliament wished to impose objective liability.
⁃ Look at the statutory provision of the offence. Is there express language of mens rea?
⁃ If no, is the offence a ‘true crime’ (in Criminal Code) or ‘regulatory offence’?
o If it is a true crime, go to STEP 7A. The mens rea is presumptively, any subjective form of mens
rea (Buzzanga).
o If it is a regulatory offence go to STEP 7C. The mens rea is presumptively, strict liability (Sault St.
 Marie).
⁃ If yes, the language governs. If the offence expressly sets out the mens rea for that offence, then the only
tasks are:
o (1) To ascertain the express words of mens reas
o (2) To determined whether the express words of mens rea, if any, are ‘so low or minimal; that they
violate principles of fundamental justice in s.7 Charter?
⁃ The mens rea expressed in an offence applies to all elements of the actus reus, unless the offence
provides otherwise, expressly or by (judicial) implication. (ie. The mens rea for theft is
"intentionally". Intention applies to all elements of the actus reus: (1) taking, (2) property (3) which
is not your own (4) without the owner's consent).
STEP 7A –
SUBJECTIVE MENS REA
⁃ Subjective mens rea - actual state of mind of the subject of the prosecuting (the accused).
⁃ Presumption – people usually intend the natural consequences of their acts. This holds, unless intention
is communicated.
⁃ The law assumes that the accused knew of the elements of the offence. Unless, the “defence of mistake
of fact” is made out.
⁃ If a true crime is silent as to the mental state, and offence requires a consequence, it is implied that
intention or “recklessness” in bringing out the consequence will suffice.
ELEMENT 1 – If the offence is a true crime, there is a rebuttable presumption that the offence is a full
mens rea offence.
“Subjectivity “ principle: Where the offence is a true criminal offence, the Crown must establish that the
accused who committed the prohibited act did so intentionally or recklessly, or with wilful blindness toward
them: Sault Ste Marie
Thus, there is a presumption of subjective mens rea for true crimes (Sault Ste. Marie)
NB: For subjective mens rea the prosecution must prove intention, recklessness or wilful blindness beyond
a reasonable doubt. Conduct is advertent: Intention, knowledge, recklessness, wilfully

ELEMENT 2 – Presumption can be rebutted if the words or the context of the offence and statute
seem to indicate a mens rea other than the one presumed was intended.
However, the presumption can be displaced by evidence express or implied that the legislature has adopted
an objective test or even absolute liability for some aspect of the offence.

Criminal Code
Fault presumption on silent section: subjective…
but we are moving towards objective.
Look to the language of the offence
Note the difference between negligent conduct
and reckless conduct.
Reckless: requires proof that the accused was
subjectively aware of the prohibited risk and was
reckless as to whether the consequences occurred.
Negligence: Is the failure to act as a reasonable
person without foreseeing the possible
consequences of your action.
Subjective Objective
 1. Clear Language: Look for words such as ought,
should have, negligence, reasonably,
wanton and reckless, good reason,
2. Silent: if the Code is silent say “in the past there
was a presumption that all Code offences
1. Clear Language: Look for words such as intent,
had a subjective fault element. Stu/
wilfully, knowingly, purposely, wilfully blind,
Beaver case support this presumption.
reckless (without wanton), deliberately
SCC has never straight out said this
2. Special Stigma - offence Constitutionally
presumption has changed, however SCC
requires subjective mens rea: Look to
decisions such as Creighton exhibit a
see if it is murder (Martineu), attempted
move towards a presumption of objective
murder (logan), crimes against humanity
fault (gross negligence) for silent Code
(flinta), and theft (obiter in Martinueau)
offences.” Note, in our discussion of
3. Traditional subjective Fault Offences: like
statutory interpretation, the Goulis case
sexual assault and assault offences, these
established that any vagueness in a
are offences held subjective based on
statute is to be interpreted in favour of the
tradition or precedent (Darrach).
accused. Therefore if any ambiguity
4. If these words/ offences are found then you are
arises, based on Goulis, we should
dealing with a subjective fault requirement.
adopt subjective fault at a minimum
5. If you are dealing with subjective you must
(note: this is not what the SCC has been
establish that the accused had a guilty
doing). Wilson thinks the starting point
mind; you must establish BARD that the
should be SF – with OF only in
accused acted with:
exceptional circumstances on clear
⁃ the intent or purpose (not motive!) to achieve the
statutory indication of parliament.
prohibited result or
3. Objective fault “Does the conduct of the accused
⁃ Was wilfully blind to result, or
go beyond a failure to act reasonably and
⁃ Was reckless to result (lowest form of SF)
does it take on a character of a marked
[and substantial] departure from the
***Motive is not a requirement of MR. it is sometimes
reasonable person? “ (Tutton)
useful in defences – duress, necessity, self defence
i. Criminal negligence = marked and
substantial departure
(R. v. J.F.)
ii. All other objective fault crimes = marked
departure – modified
objective test (Beatty)

If the language in the statute indicates it an objective mens rea – go to STEP 7B.

ELEMENT 3 – Where the presumption of full mens rea applies, that mens rea will be satisfied by
proof that the accused committed the offence either intentionally, recklessly, or through wilful
blindness (but does not include committing the crime negligently).

If you are dealing with subjectve mens rea, you must establish that the accused had a guilty mind.
You must establish BARD, that the accused acted with:
Levels of fault from highest standard to lowest:
Intent/Purpose  Knowledge (goes to wilful blindness)  Recklessness Criminal Negligence
Note: Recklessness is the default in statutes that are not clear.

Intention, ulterior Mens Rea - The accused must have the very intention required by the relevant
provision.
R v Vandergraff – V intended to throw the object, but not to make contact with the victim. His “assault” was
not intended and he was not guilty.
R v Murray – Murray intended to hold the Bernardo tapes, but not for the purposes of obstructing justice.
He was therefore not guilty.
R v R(J.S.) – R(J.S.) intended to shoot into a crowd, with intent to kill a human being (albeit not the one
killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the
evidence comes out.

Subjective Mens Rea with Objective Features

⁃ Some criminal offences use standards to define criminal conduct (ie. some assault are sexual, others are
not).
⁃ If accused to have subjective appreciation that relevant criminal standard has been met prior conviction –
would allow content of offence to vary by offender; not sensible.
o Ie. The accused can commit fraud if he intends the relevant transaction, even if he doesn’t
appreciate that a transaction of that nature is ‘dishonest’.
o If it were otherwise objective dishonest people would be held to lower standards that the rest of us.
R v Theroux – The accused was convicted of fraud for accepting deposits from investors in a building
project having told them that he had purchased deposit insurance when in fact he had not. The court
considered the mens rea of fraud under s. 380. Held - The mens rea of fraud is established by proof of
subjective knowledge of the prohibited act, and subjective knowledge that the prohibited act could have as a
consequence the deprivation of another. Conduct and knowledge established = accused guilty; whether
intended prohibited consequences or not. Trier of fact – can infer intent/knowledge from accused’s actions.
There is no requirement that the accused subjectively appreciate the dishonesty of his acts.
⁃ That “an act of deceit which is made carelessly without any expectation of consequence, as for example,
an innocent prank or a statement mad in debate which is not intended to be acted upon, would not
amount to fraud because the accused would have no knowledge that the prank would put the
property of those who heard it at risk”.
R v Chase – The accused was charged with sexual assault with his 15 year-old neighbour, he grabbed her
breast. Held –The act of sexual assault should be looked at objectively, if the act appears to be sexual, then
it is sexual assault. As long as the circumstances of the assault objectively infringe the sexual integrity of the
complainant, then that makes the offence one of sexual assault. The sexual part of the sexual assault is the
actus reus not mens rea. Factors to be considered - Part of the body touched, the nature of the conduct,
the situation in which it occurred, the words and gestures, all other circumstances (including threats), and
intent may also be relevant (i.e. was the person committing the act seeking sexual gratification), but this is
not determinative.
Knowledge
⁃ It is unrealistic for the Crown to prove what the accused knows – thus, it is presumed that the accused
knows the conditions of the actus reus exist.
Unless the accused presents a “mistake of act defence”.
⁃ In sexual offence context, the mistake of fact defence is heavily limited for policy reasons, see below.
R v Ewanchuk – E made sexual advances on an interviewee. She said no, but he continued, and she failed
to object further. It was argued that this constituted “implied consent”. Held – The SCC held that there was
no defence of “implied consent” to sexual assault. Actus Reus: 1) touching – objective, 2) sexual nature of
the contact – objective, 3) absence of consent – subjective. Look at complainant’s subjective internal state
of mind. Mens Rea: 1) intention to touch, 2) knowing of, or being reckless of or wilfully blind to, a lack of
consent on the part of the person touched. No consent exists when complainant fears physical violence –
subjective approach.
Limits on honest but mistaken belief of consent - silence, passivity, lapse of time, or ambiguous
conduct doesn’t constitute consent.

Wilful Blindness
⁃ Wilful blindness is related to, but distinct from recklessness.
⁃ Subjective state of mind – requires the accused to personally foresee the risk of a fact  but then wilfully
avoids confirmation so as to be able to deny knowledge.
⁃ Wilful blindness fits best when used as a substitute for knowledge.
o Courts and Parliament have habit of using “wilful blindness” interchangeably with recklessness.
(See s.273.2 – it is not a defence that that the accused believed that complainant
consented to the activity that forms the subject-matter of the charge, where (a) the
accused’s belief arose from the accused’s … (ii) recklessness or wilful blindness).
o This leads to confusion – the two concepts are not the same, cannot be equated.
⁃ Generally – the accused must know that the conditions, which are set out in the offence, exist before the
offence can occur. The mens rea of wilful blindness can be substituted for full knowledge.
R v Currie – A guy approached Currie and offered him $5 to cash a cheque for him. The cheque had a
signature of endorsement on the back [it was forged by the dude who gave him the cheque]. Currie took it to
the bank, cashed it and gave the cash to the dude. Trial judge accepted as evidence the accused's
testimony that he had no suspicion that the cheque did not belong to the dude. He was charged and
convicted with unlawfully and knowingly uttering a forged document on the basis that he was wilfully blind as
to the forged nature of the endorsement. Did accused know that the endorsement on the cheque was
forged? Held - No. Appeal allowed. Doctrine of Wilful Blindness: Wilful blindness requires that accused
himself deliberately failed to inquire into his suspicions. The fact that a person OUGHT to have or SHOULD
have inquired does not constitute knowledge or wilful blindness. Wilful blindness requires actual suspicion.
R v Duong – Accused charged with accessory after the fact to murder. He allowed an individual wanted for
murder to stay at his apartment. He heard about the killing through the media and the killer told him he was
“in trouble for murder”. Held – Knowledge that the accused may have committed some general crime
is not sufficient. The crown will meet its burden if the accused had actual knowledge of the offence
committed or actual suspicion + with conscious decision not to make inquiries to confirm suspicion. Here
the accused just thought there was some sort of connection. Wilful blindness is sufficient for the
knowledge requirement in s. 23 accessory after the fact.
⁃ Note: Where the accused chooses to make no inquiries, speculation about what the accused would have
learned is irrelevant to the determination of the blameworthiness of that accused’s state of mind.
R v Vinokurov – V was in possession of stolen goods and denied knowing they were stolen. Does
recklessness suffice for knowledge? Held – No. The offence in question requires proof that the accused
"knows" that property had been obtained from the commission of an indictable offence.

Wilful blindness is imputed knowledge, whereas recklessness is something less. Where a statute
requires actual knowledge, wilful blindness will suffice because it is the equivalent of actual
knowledge, whereas recklessness is not and is insufficient.

Recklessness
⁃ Recklessness = subjective state of mind. Requires the accused to continue to act, in spite of actually and
personally foreseeing the risk that their actions will bring about the prohibited consequences.
o Contrast – Negligence which applies if a reasonable person would have foreseen risk (even if
accused does not personally see the risk)
⁃ Recklessness is a subjective mens rea with objective features - exists only where objectively unjustifiable
to take risk accused understood he was taking. The fact that the accused may have felt the risk to
be justifiable would be no answer.
⁃ Recklessness applies where provision creates a consequence  doesn’t require some more limited kind
of mens rea.
R v Theroux – See above.
R v Buzzanga and Durocher – Two francophone men charged with wilfully promoting hatred against an
identifiable group. The accused published an anti-francophone brochure in an attempt to provoke a
backlash against anti-francophones. Elements of the offence: The person must, by (1) communication of
statements, (2) wilfully (3) promote hatred against (4) an identifiable group. Held – “Wilful” in this subsection
means with the intention of promoting hatred and does not include recklessness. “Wilfully” intending to bring
about the proscribed consequences; not wilfully doing the act. Generally, “wilfully” connotes an intention
to bring about a proscribed consequence.

STEP 7B –
OBJECTIVE MENS REA AND TRUE CRIMES
⁃ Objective Mens Rea (fault) standard – not concerned with the accused’s thinking at the time, but rather
evaluating their conduct. Criminal negligence = objective fault = reasonable person.
Murder Convictions
⁃ No objective fault for murder - convictions must be based on subjective mens rea in the form of full-scale
intention (constitutional requirement).
R v Martineau – The SCC held that liability for murder cannot be based on any mens rea less than
subjective foresight of death. B/c of the stigma and punishment for a murder conviction, the principles of
fundamental justice requires this. Thus, constructive murder in s.230 and objective liability in s.229(c) =
unconstitutional.
Principle = The punishment for murder carries with it the greatest punishment and stigma in society
and should be reserved for those who intended to cause death or bodily harm that was likely to
cause death.
Penal Negligence - Marked Departure Test
⁃ For crimes using objective fault as the mens rea, “penal negligence” (a more restricted form of
negligence) is generally required.
⁃ Objective fault – “Does the conduct of the accused go beyond a failure to act reasonably and does it take
on a character of a marked (and substantial) departure from the reasonable person?” (Tutton).
R v Creighton –Drug user doing drugs with victim. Injected cocaine into victims arm with her consent. She
stopped breathing and died. C charged with unlawful act manslaughter offence. Held - Proof of offence -
objective foreseeability of risk of bodily harm - which is neither trivial nor transitory. 1) is the actus reus
established - requires negligence constitute marked departure (test) from standards of a reasonable
person in all the circumstances of the case. 2) is the mens rea is established - standard = reasonable
person in the circumstances of the accused. Inference may be negated by evidence raising reasonable
doubt as to the incapacity to appreciate the risk. Personal factors = not relevant (thin skull rule).
R v Beatty – Accused charged with dangerous operation of motor vehicle causing death – truck crossed
solid highway line, collided w oncoming car, killing all. Held SCC – mens rea of criminal negligence bases
offences - modified objective test = marked departure from civil norm. A mere departure of a reasonably
prudent person = threshold for civil negligence; NOT penal negligence. Mere departure/marked departure
distinction = question of degree. The actus reus requires proof BARD that, objectively, the accused was
operating the vehicle in a manner dangerous to the public. Regard had to – nature, condition, and use of
place car was operated and amount of traffic at time. Momentary lapse of attention, insufficient to found
criminal culpability.
Predicated Offences
⁃ Exception to “penal negligence” requirement - “predicated offences”. They are aggravated forms of
offences that apply when serious consequences result, and that include within their elements
another complete but lesser offence, a “predicate” offence.
⁃ For predicated offences the consequences need not be brought about by “penal negligence”. It is enough
if the accused commits the underlying or predicated offence, and that the aggravated consequence
that has been thereby cause was objectively foreseeable.
⁃ Unlawful act causing harm, unlawful act causing death, aggravated assault. In each case the unlawful act
is interpreted to require objective foresight of harm
R v DeSousa – Fight broke out at a party, accused threw bottle at wall and broken glass flew into victims
arm. Held - The unlawful act must also be objectively dangerous - likely to injure another person.
Reasonable person = realise act would subject person to risk of bodily harm. Bodily harm -more than merely
trivial or transitory and usually involves an act of deliberate violence.

STEP 7C –
REGULATORY OFFENCES
⁃ Regulatory offences can be full mens rea offences (absolute liability), which are true crimes. However, for
a regulatory offence to be interpreted as such there needs to be a clear indication that mens rea is
required.
ELEMENT 1 – If it is a regulatory offence, there is a rebuttable presumption that you are dealing with
objective fault. The starting point is strict liability (Sault Ste. Marie).
⁃ They are presumed to be strict liability offences
o offences that can be committed by simple, non-penal negligence, with the accused bearing the
burden of proving an absence of negligence to avoid conviction.
ELEMENT 2 – Is the presumption rebutted?
⁃ Strict liability – the accused may raise defence. Up to the accused to show that he/she was duly diligent.
Burden of proof lies with the accused. This is presuming culpability not innocence.
(i) Does the wording in the provision exclude a defence of due diligence? (s.84.1 HTA)
(ii)Does the wording lend to an absolute liability offence by expressly excluding the possibility of innocence?
(R v Chapin)
(iii) Look at the nature of the penalty (if there is threat of imprisonment, even default on fine, it cannot
be absolute liability) (SSM/Reference re Motor Vehicle)
(iv) Look at the intention of Parliament and the content of the rest of the statute. Were they silent about
DD on one section and not other? If so, maybe they intent Absolute Liability offence.
(v)Look to the wording of the statute (reckless, wilfully, intent, knowledge) (R v Chapin)

Strict Liability
ELEMENT 3 – If it is a strict liability offence, then the burden shifts to the accused to prove on a balance of
probabilities:
⁃ That he acted with reasonable care or due diligence?
⁃ That the act was a mistake of fact?
⁃ Do not argue ignorance of the law (s. 81 of Provincial Offences Act says not a defence)
Absolute Liability
ELEMENT 4 – If the presumption was rebutted the accused has no defence and the Crown must only prove
that act BARD (including causal link and voluntariness).
⁃ Some regulatory offences operate as absolute liability offences that will be committed whenever the
relevant actus reus is proved, provided this is clearly what the legislators intended when
establishing the offence.
Subjective Fault
ELEMENT 5 - The burden rest on the Crown to prove BARD that the accused had intent (see subjective
analysis).

Cases:
The Emergence of Strict Liability
R v Sault Ste. Marie – Charged with discharging materials into creek and impairing water quality.
Independent contractor hired to dispose of waste, put it in landfill next to creek. City said not responsible b/c
contractor built landfill. Issue was fault requirement. Held – Strict liability. Accused entitled to a new trial. The
court in considering provincial pollution legislation held that there are 3 categories of offences created by
statute distinguished as follows:
(1) full mens rea offences requiring proof by the prosecution of a positive state of mind such as intent,
knowledge or recklessness (True criminal offences)
(2) strict liability offences in which there is no necessity for the prosecution to prove mens rea but
which leave it open to the accused to avoid liability by providing that he took all reasonable care;
 and
a. “Public welfare offences” are prima facie in the second category unless the statute includes the
words such as “wilfully” evidencing an intent that he offence be placed in the first category.
(3) offences of absolute liability where it is not open to the accused to exculpate himself by showing
that he was free of fault.
a. Offences in the third category would be those in respect of which the legislature has made it clear
that guilt would follow proof merely of the proscribed act.

Constitutional Considerations
R v Chapin – Duck hunting & charged with baiting area. Held - Court said not reasonable to make her
check whole area for bait. First, determined if regulatory offence. If yes, presume strict liability, unless
wording says something else (ie. wilfully, intentionally, etc) or if high penalty (ie. jail time). Charter standards.

Reference re Section 94(2) of the Motor Vehicle Act (B.C.) – Driving while license suspended = absolute
liability offence & penalty = mandatory prison time. Held – Not saved here. No record of law offending s. 7
and being saved under s.1 to date. Offence with possibility of jail time cannot be absolute liability under s. 7
of Charter, it offends the principles of fundamental justice. Possible for someone without fault, to be thrown
in jail, offends s. 7. The accused opportunity to defend by demonstrating that they were without fault -
exercised due diligence, operated under an honest/reasonable mistake of fact.

R v Cancoil Thermal – Factory removed guard on machinery b/c interfered with clearing scrap. Employee
loses tip of finger by accident. Violates safety legislation that requires employers to provide guard from
moving parts. Original guard would have prevented. Issue – was fault requirement regulatory and strict
liability b/c includes possible jail time. Good example of vulnerability justification. Held – Absolute liability
offence, but if so, it would offend s. 7. Should interpret in a way that does not violate the charter. The court
considered officially induced error as a defence to a provincial offence.
It was held that the defence is available as a defence to a “regulatory” offence where the accused
reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for
the administration or enforcement of the particular law. Retrial.

Levis (City) v Tetreault – An accused must demonstrate the objective reasonableness of the advice given
and the reliance on the advice. The issue must be considered from the perspective of a reasonable person
in a situation similar to that of the accused. SCC recognized the common law defence of “official induced
error of law”.
EXTENSIONS OF CRIMINAL LIABILITY
⁃ It is not only the person who actually performs the actus reus (the “principal” offender) who can be
convicted of the offence.
AIDING, ABETTING
⁃ Those who aid (physically support) or abet (encourage) the accused to commit the offence can be
convicted.
⁃ Persons who aid and abet an offence can be convicted of offences they did not intended to aid or abet 
provided that offence is a foreseeable outcome of the offence they did intend to aid or abet.
Section 21(1) – Every one is a party to an offence who
(a) Actually commits it;
(b) Does or omits to do anything for the purpose of aiding any person to commit it; or
⁃ To aid under s. 21(1)(b) means to assist or help the actor e.g. drive person to offence: Greyeyes
⁃ ‘omits’ = things that make it easier to commit the offence. E.g. leaving a back door open to make is
easier to get into premises
⁃ MENS REA: In (b) mens rea is expressed as “for the purpose of”
o “for the purpose of” means ‘with intent to’ as per Hibbert 1995
o Therefore can apply to the commercial aider e.g. if gun seller knows you are going to use gun to
 commit a crime he will be liable as he sold to accused with intent to aid in a crime
(c) Abets any person in committing it.
⁃ To abet includes encouraging, instigating, promoting or procuring the crime to be committed: Greyeyes
SCC 1997
⁃ MENS REA: in (c) mens rea is implied because each offence must have a mens rea requirement
o There must be intent or recklessness: Beaver

Common Purpose Rule

Section 21(2) - Where two or more persons form a common intention to:
(i) carry out an unlawful purpose; and
(ii) to assist each other therein and any one of them, in carrying out the common purpose,
(ii) commits an offence, each of them who knew or ought to have known that the commission of the offence
would be a probable consequence of carrying out the common purpose is a party to that offence.
⁃ E.g. common purpose to rob a bank but not commit murder. If murder occurs then other person will not
be liable as outside the common purpose.

Mens Rea Test for s21(2)

⁃ “liable if they knew or ought to have known commission of the offence was a probable consequence”

TEST: “ought to have known” can assess fault based on an objective standard regardless of mens rea for
principal offence.
⁃ Ie person ought to have know an unintended result was likely.

Exception for offences for which subjective mens rea is constitutionally required  Words “or ought to
have known” are constitutionally inoperative e.g. murder, attempted murder: Logan, SCC 1990.

R v Logan - Accused helped plan a robbery (but wasn’t there) - someone was shot and almost killed. The
accused is charged (as a party) with attempted murder for the robbery and injuring of the store cashier.
Appealed on the issue of mens rea for attempted murder - the constitutionality of objective standard
imposed in s. 21(2) – common interest doctrine. Held - Parliament allowed to have different fault levels for
principals and parties, but if offence has constitutionally required minimum fault level, then can’t be
convicted as party w/o meeting that minimum.
Two step process: figure out if there is a constitutionally required minimum and, if not then s.21(2) is
fine and if yes, then make sure that minimum met too.
1) Attempted murder requires subjective mens rea.
2) S. 21(2) is unconstitutional with respect to the objective part, when it is tied to a crime that
constitutionally requires subjective mens rea (murder, attempted murder, war crimes, crimes
with stigma  infer subjective mens rea; therefore no ‘ought’).

Passive Spectator
⁃ There is no liability for being a passive spectator of an offence: Dunlop & Sylvester
⁃ What constitutes a passive presence: Presence at the commission of an offence can be evidence of
aiding and abetting if accompanied by other factors, such as prior knowledge of the principal
offender’s intention to commit the offence or attendance for the purpose of encouragement:
Dunlop & Sylvester

R v Dunlop and Sylvester - Group attack, rape, identified the accused, accepted he had only gone to bring
beer and only stayed for a few minutes. Held - Mere presence at the event or passive acquiescence is not
enough to find someone guilty as aider and abetter.

COUNSELING
⁃ An accused can be convicted of counselling offences, whether or not the offences counselled are actually
committed.
⁃ Counseling = encourage before the act.
Distinguish abetting and counselling
⁃ Abetting = psychological encouragement/support at scene of offence
⁃ Counseling = not at scene of offence but encourages before the illegal act takes place

Section 22 (1) - Where:

(i) a person counsels another person to be a party to an offence; and
(ii) that other person is afterwards a party to that offence, the person who counselled is a party to that
offence, notwithstanding that the offence was committed in a way different from that which was counselled.

The Extended Counselling Rule

(2) Every one:
(i) who counsels another person to be a party to an offence is a party to every offence that the other
commits in consequence of the counselling that the person who counselled knew or ought to have known
was likely to be committed in consequence of the counselling.
⁃ NB: exception for offences which constitutionally require subjective mens rea as “ought to have known”
is unconstitutional i.e. murder , attempted murder (have to show actual intention)

(3) Counselling, defined to include “procure, solicit or incite”.

Mens Rea for Counselling

Mens rea requirement is intention or recklessness. Hamilton (selling ways of doing credit card fraud over
the internet) 6-3 majority held that recklessness was sufficient as he was aware of the risk that someone
may use his programs for fraud even though his intention was not to counsel.

R v Hamilton - Sent out teaser email advertising machine to generate credit card numbers; charged
w/counselling fraud. Trial judge acquitted b/c motivation monetary rather than malicious, but didn’t discuss
mens rea so new trial. Dissent said recklessness not enough for mens rea. Held - Mens rea required for
counselling - recklessness or wilful blindness. Actus reus = actively encouraging crime (if it’s socially
harmful to do it, then it’s just as socially harmful to counsel someone else to do it). Mens rea = intending
offence to be committed or knowing it will likely be committed (can be intent or recklessness, maybe wilful
blindness).

Counselling offence that is NOT committed:

Section 464 – Except where otherwise expressly provided by law, the following provisions apply in respect
of persons who counsel other person to commit offences, namely:
(a)every one who counsels another person to commit an indictable offence is, if the offence is not
committed, guilty of an indictable offence and liable to the same punishment to which a person who
attempts to commit that offence is liable, and
(b) every one who counsels another person to commit an offence punishable on summary conviction
is, if the offence is not committed, guilty of an offence punishable on summary conviction.

ATTEMPTS
Not all crimes need to be completed before an offence arises.

Section 24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the
purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was
possible under the circumstances to commit the offence; (2) The question whether an act or omission by a
person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too
remote to constitute an attempt to commit the offence, is a question of law.

The Discrete Offence of Counselling

Section 463– Attempts, accessories.
Persons who attempt to commit or are accessories after the fact to the commission of offences:
(a) If indictable offence carrying liability to life, and convicted, liable to 14 years.
(b) If indictable offence carrying liability to 14 years or less, and convicted, liable to ½ maximum penalty for
completed offence.
(c)/(d) If summary offence and convicted, liability to full penalty for summary conviction offence.

The offence of conspiracy in which the agreement to commit a crime is a crime

Section 465 – (1) In respect of conspiracy:
(a) Conspires to commit murder or cause another to commit murder, guilty of indictable offence, liable to life
imprisonment.
(b) Conspires to prosecute person for offence they did not commit, guilty of indictable offence and liable:
(i) If offence carries liability for life or term not exceeding 14 years, liable for 10 years.
(ii) If offence carries liability for less than 14 years, liable for 5 years.
(c) Other indictable offences, liable for fully indictable penalty.
(d) Conspires to commit summary offence, liable for full summary penalty.

There is liability for attempting to commit an offence.

Section 660– Where the completed commission of an offence charged is not proved, but the evidence
establishes an attempt to commit the offence, the accused may be convicted of the attempt.

Mens Rea for Attempts

R v Ancio – Husband went to estranged wife’s boyfriend’s place with gun, they struggled and gun went off
(not clear if accident). Issue was mens rea for attempted murder. Held – The level of intent should the
same as for attempted murder or murder. Mens rea of attempt = mens rea of fully crime. Mens rea for
attempted murder requires proof of the specific intent to kill. No lesser mens rea will suffice. The Crown
must prove intent to commit the offence in question (mens rea) and that some steps had been taken
towards the commission of the offence going beyond mere acts of preparation (actus reus).

Mere Preparation vs. Attempt

R v Deustch – The accused was charged with attempting to procure women to have sex with another
person [now s.212(1)(a)]. He placed an ad in the newspaper and interviewed the women explaining that it
would be their job to haves sex with clients. Held - No satisfactory general criteria can be formulated to
determine the difference between mere preparation and an attempt. The distinction between preparation
and attempt is essentially a qualitative one, involving the relationship between the nature and
quality of the act in question and the nature of the complete offence, Last stage test: if there’s nothing
else you can do to carry out the prohibited consequence, that’s got to be enough to constitute an attempt.
⁃ It is a question of law for the judge to decide if the actions of the accused were beyond mere preparation:
24(2)
⁃ The court has accepted a Multi-factor Approach: There is no single determinative test. The court
should consider everything and determine if there has been an attempt (judgment call on the facts).
Factors to take into account: time, location and acts under the control of the accused remaining
to be accomplished: Deutsch
⁃ Also consider if it was the accused ‘last step’ or if he was ‘on the job’ or in ‘proximity’ to the location and
completion of the offence; has there been a ‘substantial step’ from the commencement of the act.

Attempting to Conspire to Commit Substantive Offence

R v Dery – Police overheard the accused attempting to conspire to commit possession of stolen liquor. Held
- Attempting to conspire to commit an offence is not a crime in Canada. This case exposes the limits of
piggy-backing incomplete forms of liability. Attempting to conspire to commit a substantive offence is not a
crime in Canadian law.

CORPORATE AND ASSOCIATION LIABILITY

⁃ Corporations are liable for the acts of their agents for strict and absolute liability offences.
⁃ These offences turn on actus reus alone  no need to use any legal devices to ascribe mens rea to the
corporation. The Criminal Code corporate liability provisions do not apply to regulatory offences.
⁃ For true crimes the Criminal Code sets out standards for corporate and association liability.
Section 22.1 – In respect of an offence that requires the prosecution to prove negligence, an organization
is party to the offence if,
(a) acting within the scope of their authority,
(i) one of its representatives is a party to the once, or
(ii) Two or more of its representatives engage in conduct, whereby the act or omission, such that, if
it had been the conduct of only one representative, that representative would have been a party to
the offence; and
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the
offence departs – or the senior officers, collectively, depart – markedly from the standard of care, in the
circumstances, could reasonably be expected to prevent a representative of the organization from being a
party to the offence.

Applies to objective fault or negligence offences where an association is charged.

Section 22.2 – In respect of an offence that requires the prosecution to prove fault – other than
negligence – an organization is a party to the offence if, with the intent at least in part to benefit the
organization, one of its senior officers,
(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their
authority, directs the work of other representatives of the organization so that they do not act or
make omission specified in the offence, or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does
not take all reasonable measures to stop them from being a party to the offence.
Applies to subjective mens rea offences charged against an association.
SELECT CRIMINAL DEFENCES
MENTAL DISORDER
⁃ Section 16 of the Criminal Code modifies the common law defence of insanity.
⁃ To have access to this defence, the accused must establish that he has a “mental disorder” as defined by
the case law and that it affected him in one or both of the ways described in section 16(1).
Section 16 (1) No person is criminally responsible for an act committed or an omission made while suffering
from a mental disorder that rendered the person incapable of appreciating the nature and quality of the
act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder, until proved on a balance of probabilities.
(3) The burden of proof, that accused suffered mental disorder and should be exempt from criminal
responsibility, is on the party raising the issue.

Definition of Mental Disorder

R v Cooper – The accused strangled someone to death. The accused argues that he blacked out for the
last part of the strangulation and at the time did not have the necessary mens rea (for murder offence mens
rea is knowing that the victim is likely to die). Held – Mens rea at the beginning o the act carries
throughout the whole act. The term “disease of the mind” = any illness, disorder or abnormal condition
which impairs the human mind and its functioning, excluding, however, self-induced states caused by
alcohol or drugs, as well as transitory mental states such as hysteria or concussion. Personality disorders
may constitute disease of the mind.
⁃ This case provides a definition of mental disorder, although it has been modified by R v Park.
R v Parks - Husband kills in laws in sleep. Held - Multi-factor ‘policy’ test – The court said there is no
single test. We will look at and consider everything to determine if there is a Mental Disorder. SCC
acknowledged that there were two distinct approaches to the disease of the mind inquiry: (i) the continuing
danger and (ii) internal cause theories. Concluded: that both theories stemmed from a common concern for
public safety and that both approaches are merely analytical aids in deciding which defence should be
available as a matter of policy.

“Appreciates”
R v Cooper – The word “appreciates” requires beyond mere knowledge of the physical quality of the act
and requires a capacity to apprehend the nature of the act and its consequences.

“Wrong”
R v Oommen – O had paranoid delusion that a killing is necessary in self-defence b/c he thought someone
was after him and he kill them. Held - Issue not whether the accused had a general capacity to know right
from wrong, but rather the ability to know that a particular act was wrong in the circumstances and hence to
make a rational choice of whether to do it or not . Accused not criminally responsible when delusional and
perceives a wrong act as right or justifiable, and b/c of the disordered condition of his mind he is unable to
rationally evaluate his actions. Unnecessary to show that, if the delusions were true, a specific defence such
as self-defence would also apply.

Sociopathic or Psychopathic Offenders

R v Kjeldsen – Personality disorders or psychopathic personalities capable of constituting disease of the
mind. However, the defence of insanity is not made out where the accused has the necessary
understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings
for the victim or lacks feeling of remorse or guilt for what he has done, even though such lack of feeling
stems from disease of the mind.
VOLUNTARY ACTS “NEGATIVING” THE ACTUS REUS AND AUTOMATISM
⁃ Automatism is divided into two categories:
o (1) “insane (or mental disorder) automatism” – If this defence applies, the court is really
applying “mental disorder” defence b/c the accused person who is automatistic because of
a disease of the mind cannot appreciate the nature and quality of his act or have the
capacity to understand that the act is wrong. If not criminally responsible, committed to
institution.
o (2) “non-insane (non-mental disorder) automatism” – If this defence applies, a complete
acquittal is appropriate.
Definition
A state of impaired consciousness (not unconsciousness) where an individual has no voluntary control over
their action. Voluntariness is the key element of automatistic behavior since a defence of automatism
amounts to a denial of the voluntariness component of the actus reus: Stone

Automatism operates where there appears to be some disconnect between the actions of the accused and
his conscious will. The accused’s physical motions were not culpable where they are not voluntary or
thought-directed or conscious.
To satisfy actus reus requirement, acts have to be willed (voluntary).

Voluntariness
R v Swaby – S charged with operating a motor vehicle while having knowledge that another occupant is in
possession of an illegal firearm. S stopped car, passenger bolted. He found out of gun after arrest. Held –
trial judge erred in jury direction. Court held, without voluntariness there was no actus reus to be punished. If
accused only acquired knowledge at the point when the passenger was exiting the vehicle then an acquittal
should be entered.

Non-Insane Automatism Defence

R v Parks – While sleepwalking, drove across town and attacked in-laws (killed mother, injured father).
He’d been under stress and wasn’t sleeping well. Issue was distinction between insane and non-insane
automatism b/c asleep the whole time. Held – sleepwalking not a disease of the mind, it is a form of non-
insane automatism. Since succeed with defence entitled accused to acquittal. Automatism goes to actus
reus (voluntariness).
The SCC acknowledged that there were two distinct approaches to the disease of the mind inquiry: (i)
the continuing danger and (ii) internal cause theories. Internal cause (contra Rabey) and not related to
a mental disease. His "poor sleep hygiene" was a result of a stressful time of life, and with the right
changes the automatistic episode would never happen again. Reaffirms that jury decides whether
suffering condition @ time of act @ judge decides whether condition is a disease of the mind (not
bound to follow psychiatrists). Internal/external cause, distinction insignificant b/c both negate the MR.
The real matter is: is the automatism related to a disease of the mind or not?
⁃ The result of this decision was controversial enough that the SCC took procedural steps to cut the
defence back in R v Stone (it is not clearly an external cause, then it will be considered mental
disorder as under s.16, unless evidence to the contrary).

⁃ R v Stone – Argument with wife. She attacked him with verbal insults. He blacked out, lost
consciousness. He woke up and she was stabbed 47 times. Claimed non-insane automatism. Trial
judge said mental disorder automatism. Held – No. Guilty.
The SCC decided to clarify the law, by these points:
(1) Evidentiary burden – Trial judge to determine if evidence convincing for automatism
defence (great deal of persuasiveness) before the jury can hear it;
(2) Trial judge decide accused’s condition mental disorder or non-mental disorder
automatism;
(3) Burden on accused to prove involuntariness b/c of automatism (BOP);
(4) Expert evidence must confirm involuntariness;
(5) Judge to consider whether condition satisfied the legal test for disease of the mind –
consider (i) internal cause, (ii) continuing danger;
(6) Involuntariness caused by any less severe shock or mere stress is presumed to be
triggered by a factor internal to the accused and thus a disease of the mind;
(7) Jury decides if non-insane automatism applies. Succeeds only if proven on BOP 
that's shifting the burden on the defence. Unless there is a clear external cause (trigger
equivalent to a “shock”) as per the evidence, a claim of automatism will be categorised as
a mental disorder under s.16.

Persuasive Burden
R v Fontaine – Paranoid, on drugs, shot and killed someone. Trial judge said no basis for automatism
despite expert testimony of disease of the mind, so new trial. Held – Trial judge erred. In determining
whether an accused has met the evidential burden necessary to leave the issue with the jury, the trial judge
must assume the truth of the evidence that tends to support the defence and leave questions of reliability,
credibility and weight to be determined by the jury. Automatism should generally be put to jury where
asserted and there’s some corroborating evidence. The jury decides whether persuasive burden discharged.
⁃ Some of the excessive language of Stone was qualified by the Court.

SIMPLE INTOXICATION
⁃ Intoxication NOT a justification or excuse for criminal conduct.
⁃ The law of simple intoxication operates as way of limiting cases where the judge or jury can factor
 intoxication into mens rea determinations.
⁃ “General Intent” – It is assumed that the accused was not intoxicated, even if he was, when determining
if the accused had the relevant mens rea.
⁃ “Specific Intent” - The defence applies if intoxication prevents formation of the specific intent required
by the relevant offence.

Common Law Rule - General/Specific Intent

R v Bernard – The accused was on trial for sexual assault causing bodily harm. Accused forced
complainant to have sex which he did b/c he was too drunk and did not realized what he had done until it
was over. Sexual assault is a general intent offence –can accused raise intoxication as a defence? Held -
The SCC held by a 4-3 majority that the general/specific distinction is upheld. Sexual assault is a general
intent crime for which intoxication due to voluntary consumption is not a defence; voluntary drunkenness
may be a substitute for fault element in crimes of general intent. The evidence of intoxication can only go
to the Trier of fact in general intent offences if there is evidence that the intoxication is so extreme that it is
akin to automatism. HELD: that the accused was morally at fault as he voluntarily got drunk and is
therefore responsible for his actions as a result of that decision. The accused is not morally innocent and
is, indeed, criminally blameworthy.

Jury instructions on intoxication and intent

R v Robinson – Robinson killed a man but claimed to have acted w/o intent b/c he was intoxicated. After
having been instructed on provocation, self-defence and intoxication, the jury found him guilty of second-
degree murder. The instructions to the jury as to the defence of intoxication were erroneous. Held - Rule:
before the trial judge puts forward intoxication to the jury, he or she must be satisfied that the
effect of the intoxication was such that the effect might have impaired the accused foresight of
consequences sufficient to raise a reasonable doubt. Once this is done, then the issue for the jury is
whether the Crown has satisfied beyond a reasonable doubt that the accused has the requisite intent.
Proof of capacity to have the mens rea is not constitutional. It needs to be about whether you had the
actual mens rea for the offence. Just because someone had the capacity to form the intent does not
mean that they actually did form that intent. This is especially true if it’s an essential element of the
offence. THEREFORE, issue when determining intoxication is intent, not capacity.

EXTREME INTOXICATION
⁃ Extreme intoxication is distinct from the simple intoxication defence.
⁃ Where extreme intoxication applies, it can operates as a defence to any offence, whether specific intent
or general intent.
⁃ The theory behind the defence is that a person can become intoxicated enough that his mind may cease
to operate sufficiently to make conscious choices relating to his actions.
Parliament’s response to Daviault – eradicate defence in sexual offence and violence cases
Section 33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of
self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence,
where the accused departed markedly from the standard of care as described in ss(2).
⁃ NB: legislation maintains specific/general intent distinction. Can’t use evidence of intoxication for general
intent offences when intoxication is self induced. Can only use evidence if intoxication for specific
intent offences.
⁃ NB: Intoxication must have been self-induced for s33.1 to have effect.
(2) A person departs markedly from the standard of reasonable care generally recognized in Canadian
society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that
renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or
involuntarily interferes or threatens to interfere with the bodily integrity of another person.
(3) Section applies to an offence that includes as an element an assault or any other interference or threat
of interference by a person with the bodily integrity of another person.
Extreme Intoxication – Defence to General Intent Offence
R v Daviault – Chronic alcoholic raped a woman in a wheelchair, was seriously hammered. Didn’t
remember until he woke up naked in his bed. The extreme intoxication defence was created in this case
under the influence of the Charter. Can a state of drunkenness be so extreme that is constitutes a basis for
defending a crime which requires general intent? Held – The SCC recognized that if extreme intoxication
were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice
and the relevant mens rea would be absent. Thus, self-induced intoxication can be a defence to a general
intent offence, including sexual assault. Extreme drunkenness inducing a state akin to insanity or
automatism is a defence to a general intent offence. However, the burden is on the accused to prove the
defence on a balance of probabilities and the accused’s testimony would have to be supported by expert
evidence.
Note: B/c of the enactment of s.33.1, this ratio only applies to certain general intent offences, and no longer
sexual assault.

DEFENCE OF THE PERSON

⁃ Four statutory defences of self-defence.
⁃ Apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be
unlawfully assaulted, but each of the four separate offences has its own additional requirements
that must be satisfied.
Self-defence against Unprovoked Assault

Section 34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in
repelling force by force if:
⁃ the force he uses is not intended to cause death or grievous bodily harm and is no more than is
necessary to enable him to defend himself.
** Applies whether or not death or grievous bodily harm is caused**

Section 34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in
repelling the assault is justified if:
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with
which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous
bodily harm.
**Applies whether or not the accused provoked the assault being defended against and intends to
cause death or grievous bodily harm**

R v Pintar – Courts should consider which self-defence provisions apply and only instruct on those. Where
a wider defence is available, instruct on that one.
Section 34(2) is broader in scope than 34(1). Section 34(2) applies even if accused provoked
assault and cases involving (intentional) death or GBH. No proportionate force requirement. S.
34(2) question - whether the accused reasonably believed that he could not otherwise preserve
himself from death or GBH. Available for murder charges – whether intended to kill or cause GBH
or not; generally use s.34(2) for murder.

Self-defence in Case of Aggression

Section 35 – Every one who has without justification assaulted another but did not commence the assault
with intent to cause death or grievous bodily harm, or has without justification provoked an assault on
himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person
 whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself form
death or GBH;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm
arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the
necessity of preserving himself from death or grievous bodily harm arose.
** Applies where the accused provoked the assault, but this defence has lost much of its relevance
given that section 34(2), which is less restrictive than section 35, can be used where assaults are
provoked. The concept of provocation is defined for the purposes of self-defence in section 36 **

Provocation
Section 36 – Provocation includes, for the purposes of ss. 34 and 35, provocation by blows, words or
gestures.

Preventing Assault
Section 37(1) Every one is justified in using force to defend himself or any one under his protection from
assault, if he uses no more force than is necessary to prevent the assault or repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is
excessive, having regard to the nature of the assault that the force used was intended to prevent.
** Operates as a general defence that is broad enough to subsume the other defences. Courts tend
not to use it if any of the other provisions apply **

Subjective and Objective Components – Air of Reality TEST

R v Cinous – Accused shot confederates, who he believed intended to kill him. Held - A single air of reality
test applies to all defences.
The question remains whether there is (1) evidence (2) upon which a properly instructed jury acting
reasonably could acquit if it believed the evidence to be true.
No special test for sexual offences. In applying test, trial judge considers totality of the evidence, assuming
evidence from the accused is true.
For the defence to succeed under section 34 there must be: (1) the existence of an unlawful assault; (2) a
reasonable apprehension of a risk of death or GBH; and (3) a reasonable belief that it is not possible to
preserve oneself from harm except by killing the adversary.
Each element has both a subjective and objective component. The accused’s perception of the situation
is the subjective. With respect to each of the three elements, the approach is first to inquire about the
subjective perceptions of the accused, and then to ask whether those perceptions were objectively
reasonable in the circumstances. Here, there was no air of reality to the defence - No evidence that the
accused reasonably believed that his own safety and survival depend on killing the victim at the moment.

Battered Women Context

R v Lavallee – Abusive partner. One night, he threatened her and she shot him as he was leaving room.
Held – Imminent requirement in s. 34(2) – assumed assault must be in progress. However, in battered
women context the issue is whether she reasonably apprehended death or GBH, on the occasion in
question, from a threat by the deceased to kill the accused at some later time. Expert evidence may be used
in battered women context show reasonable apprehension. Modified objective standard: the standard is
what the accused reasonably perceived, given her situation and experience.

Evidence of BWS relevant to determining (Lavallee):

(i) Whether the apprehension was reasonable
(ii) Whether there were reasonable grounds for a belief in the necessity of killing: “learned helplessness”
NECESSITY
⁃ The defence of necessity permits the conduct of the accused to be excused where its elements are met.
The defence is heavily circumscribed.
R v Latimer – Euthanized daughter, who had cerebral palsy; claimed defence of necessity. Held - There are
three elements to the defence of necessity:
(1) imminent peril or danger – Ongoing pain did not constitute emergency.
(2) the absence of a reasonable legal alternative – He could have struggled on.
(3) proportionality between the harm inflicted and the harm to be avoided – Harm inflicted (death) was
“immeasurably more serious than the pain resulting from Tracy’s operation which Mr. Latimer
sought to avoid”.
The first two elements must be evaluated on a modified objective standard that involves an objective
evaluation that takes into account the situation and characteristics of the particular accused person. The
proportionality requirements must be assessed on an objective standard.
There must be an Air of Reality - The evidentiary burden lies on accused and judge can withdraw defence
from jury if no ‘air of reality’.
DURESS
⁃ The defence of duress is available under the Code and at common law.
Statute - Compulsion by threats
Section 17 – A person who commits an offence under compulsion by threats
⁃ of immediate death or bodily harm from a person who is present when the offence is committed
o [“immediate & “present” held to be unconstitutional]
⁃ is excused for committing the offence if the person believes that the threats will be carried out
⁃ and if the person is not a party to a conspiracy or association whereby the person is subject to
compulsion
o [not part of the group that makes you do act i.e. if part of mafia and mafia makes you do
something you cannot claim the defence]
⁃ but this section does not apply where the offence committed is: high treason or treason, murder, piracy,
attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing
bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a
weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an
offence under sections 280 to 283 (abduction and detention of young persons.

Elements:
(1) Immediacy Requirement – immediate threat of death/bodily harm
(2) Presence Requirement – person threatening you must be there
(3) Belief Requirement – the accused must believe that the threat will be carried out (subjective)
(4) Compulsion Requirement - Not a party to conspire or associate
(5) Exclusions – some offences excluded
This section identifies a limited defence, but the CL and Charter have been used to extend its application.

Common Law
R v Hibbert - The accused gets his friend to come down to the lobby, where another person shoots him. He
did it out of fear for his own life. At his trial for attempted murder, the accused relied on the defence of
duress. His argues that he did not have the mens rea for this offence. He did not intend to aid and abet. He
also does not have the mens rea because he did not form a common unlawful purpose to kill his friend.
Held - CL defence of duress available to a party to an offence such as murder or robbery. CL defence of
duress similar to the defence of necessity - can only be invoked where there is no legal way out of
the situation of duress the accused faces. Defence unavailable if safe avenue of escape was available to
the accused. Existence of safe avenue of escape = objective standard. What you have to show is that
compliance with the law is demonstrably impossible.
Modified objective test: if reasonable person in same circumstances would have thought there was
another way out, then defence does not apply. In considering reasonable person - personal circumstances
of the accused are relevant should be considered.
Common law defence of duress:
1) Imminent, not immediate threat.
2) No safe avenue of escape (Hibbert)
3) Proportionality – same as seen in the defence of necessity (Laitmer)

Charter Standard of Moral Involuntariness

R v Ruzic – A woman was given heroin and was told to take it to Canada and threatened that if she did not
then they kill her mother who was in Belgrade. She is caught and charged with importing drugs. She pleads
duress defence. She challenged the constitutionality of s.17 under s.7 of the Charter. Held - An accused
principle offender may rely upon the CL defence of duress (see Hibbert). Moral involuntariness is a principle
of fundamental justice protected by section 7 of the Charter. Can’t convict someone who’s behaviour is
morally involuntary and the technical requirements (immediacy and present requirements) are
inconsistent with this principle of moral voluntariness. There can be situations where you have a threat
of future harm made by someone who is not present when you commit the offence, which can still lead to
behaviour that is morally involuntary.
Thus, the SCC found that the immediate and presence requirements of s.17 violate s.7. Struck down as
unconstitutional.

Duress – Statute vs. Common Law

⁃ Statute applies only to principals (“a person who commits an offence”); CL applies to secondary parties.
⁃ Statute – threat could be against 3rd party, doesn’t have to be against actual person under duress; CL –
no restrictions to person who commits offence.
⁃ Statute – subjective test; CL – objective test
THE CRIMINAL CHARGE
LAYING THE CHARGE
⁃ The time when an information is laid before a justice is the point at which some person passes from being
a “suspect” to being an “accused”. The focus from this point on is to prove the guilt of the person.
⁃ The process of laying the charge consists of both a ministerial and a judicial function.
Section 504 Criminal Code – The justice will receive the information. Indictable offences are charged
when an information is sworn, received and approved by a judicial officer in accordance with this section.
This section states some elementary requirements that must be met before a justice may receive and
consider information.
⁃ An information must be in writing and under oath, and it must allege the commission of an offence by an
identifiable person.
⁃ It must also contain allegations that affirm the territorial jurisdiction of the justice before whom it is laid.
⁃ The informant must declare in the information that he has reasonable grounds to believe that an offence
has been committed.
Part XXVII Criminal Code – Procedure for offences prosecuted by summary conviction, the same as
section 504.

Section 506 Criminal Code – Provides that the information may be laid in the manner set out in Form 2. It
is prudent that the information is laid in this manner.
Section 507 Criminal Code – the judge has the ability to take discretionary and judicial action.
⁃ Private prosecution = The informant is not a peace officer or an agent of the attorney general.
o The Code provides that the attorney general may intervene in any private prosecution that has
been commenced, either to assume carriage of it or to stop it by means of a stay of
proceedings (sections 579.01 and 579.1).
Section 507 Criminal Code – Once the information has been received under section 504, the justice who
receives the information must consider the substance of the informant’s allegations.
⁃ The justice must decide whether to endorse it.
⁃ The Code does not state explicitly the standard that the justice must apply in this decision, but it is clear
that the justice must personally consider and agree that there are reasonable grounds to believe
that an offence was committed by the person being charged (R v Jeffrey).
⁃ If the justice is satisfied, they will sign the information. Thus, the charge is formally laid and prosecution
begins.
⁃ Refusal by a justice  does not prevent the informant from seeking a summons or warrant from a
different justice based on the information.

The Charging Document

⁃ When an accused is tried by a provincial court judge that information is the relevant document. Whereas
when the accused is not tired by a provincial court judge, an indictment is prepared (Section
566(1)).
Section 577 Criminal Code – allows for “direct indictments”, which permit the prosecutor to prefer an
indictment when the accused has not been given the opportunity to request a preliminary inquiry, the
preliminary inquiry has been commenced but not concluded, or the accused was discharged following the
preliminary inquiry.
⁃ This power also applies where a committal for trial has been quashed, or where a trial judge has
specifically declined to order an accused to stand trial on a charge not laid but disclosed in the
evidence at the preliminary trial. As it is a special power, in effect overriding procedures the
accused would otherwise be entitled to benefit from, a Crown prosecutor can only prefer a direct
indictment with the personal consent in writing of the Attorney General.

Jurisdiction
⁃ Almost all criminal cases in Canada are public prosecutions conducted by agents of the attorney general.
⁃ However, anyone may commence a prosecution by laying an information.
Public Prosecutions
⁃ The attorney general is the principal law officer of the Crown, which means that he or she is the chief
barrister and solicitor for the government.
⁃ Prosecutions are almost never conducted personally by the attorney general, but by persons who are
legally authorized to act in his name.
Section 2 Criminal Code – specifies that the attorney general may be represented by his deputy.
⁃ “prosecutor” in section 2 includes counsel appearing for the attorney general with regard to indictable
offences.
⁃ With regard to summary conviction matters, the definition of prosecutor in section 785 allows prosecution
by the attorney general, counsel appearing for him, or an “agent”. In some circumstances, a
summary conviction prosecution may also be conducted by a peace officer.
⁃ Parliament occasionally imposes a requirement that the attorney general consent to the prosecution of
some offences. This requirement is found in section 2 of the Code, or in the provision that creates
the offence, and it is a condition that must be met before a prosecution may be commenced 
consent usually required in relation to offences that are highly sensitive to the public, or
consideration of the public interest is required.
Private Prosecutions
⁃ Any person may commence a criminal prosecution by swearing an information before a competent
judicial authority.
⁃ A private prosecutor is any prosecutor under the Code who is not an agent of the attorney general. They
prosecute in the place of the attorney general.
⁃ Private prosecutions now tend to occur only when the attorney general or her agent has refused to lay
charges.
⁃ A private prosecutor may appear personally or be represented by counsel.
⁃ In all cases, indictable or summary, the attorney general may intervene in a private prosecution for the
purposes of assuming the carriage of the prosecution or for the purposes of entering a stay of
proceedings.
o With respect to indictable offences, this power is recognized expressly in section 579 of the
Criminal Code.
o Section 579.1 Criminal Code- gives power to the Attorney General of Canada with respect to
private prosecutions concerning federal offences outside the Criminal Code in which no
provincial attorney general has intervened.
o With respect to summary conviction offences, the definition of “prosecutor” refers to instances in
which the attorney general has not intervened.
o It is arguable that express provision is not necessary because the power of the attorney general to
intervene is well established at common law.
⁃ The Criminal Code includes procedural steps that must be observed at the commencement of a private
prosecution.
o Section 507.1 requires that any information laid under section 504 by a private informant must be
referred to a judge of the provincial court.
⁃ There are several provisions of the Code that allow for a privately laid information to be received and, if
endorsed, to lead to the issuance of an order for the respondent to be bound over.
o Section 810.

Territorial Jurisdiction
⁃ As a general rule, a person can only be held liable under Canadian criminal law for an offence that he
commits within Canadian territorial limits.
Section 6(2) Criminal Code – The principle of limitation is based upon the historical rationale that a
violation of the criminal law is a violation of the sovereign’s peace. Accordingly, the scope of the criminal law
is normally coextensive with the territorial sovereignty of the state.
⁃ This general principle is subject to exceptions.
o For example, an offence committed abroad but has a “real and substantial” connection to Canada,
it falls within the class of offences committed in Canada (Libman v The Queen).
o There are provisions which explicitly create exceptions giving Canadian courts jurisdiction over
offences committed outside Canadian territorial limits. These provisions reflect obligation
or agreements contracted by Canada in treaties with other states.
⁃ As a generalisation it is safe to say that the Charter is unlikely to have much influence on investigative
techniques employed abroad.
o The Charter was found to apply in R v Cook, where two Canadian police officers went tot the US
and interrogated an accused after having given him a s.10(b) warning that was clearly
deficient. (HOWEVER…)
o The SCC concluded in R v Harpe that the approach to extraterritorial application of Charter in
Cook was wrong.
⁃ Not all offences are committed in a single place. As a result, there can be jurisdiction in more than one
country, more than one province or territory, or more than one judicial district within a province or
territory.
o A prosecution may be conducted in any province or territory in which an element of the alleged
offence occurred  thus allowing for concurrent jurisdiction; so long as some part of the
actus reus of the offence occurred in that district.
o For example, R v Bigelow, the court noted that offences could have elements that mean they were
committed in more than one province. The commission of the overt act of boarding a
plane with the child in Ontario, that this act was part of a pre-planned scheme, and that
 the mother was deprived of her custody rights in Ontario because of this act, was
sufficient to give Ontario courts jurisdiction.
⁃ The Code provides that people alleged to have committed an offence have fled the jurisdiction, may be
transferred to the judicial district in which the offence is alleged to have been committed (section
543).
⁃ A court may accept a guilty plea from an accused of an offence committed in another jurisdiction and
impose sentence, provided the attorney general consent (section 478(3)).
⁃ A trial that is scheduled within the judicial district of the alleged offence may be moved to another district
within the same province.
o Section 599 – provides that a change of venue may be ordered if it is “expedient to the ends of
justice”.
o The accused or the prosecutor must show cause as to why a change is necessary – ie. if the jury is
not impartial, or the applicant can identify a cogent reasons to suggest that the trial would
be unfair or prejudicial to either party if it continued where it began.

THE SIGNIFICANCE OF THE CHARGE

⁃ A trial is not an inquiry into whether the accused committee some criminal offence. It is to determine
whether the Crown prosecutor can prove the specific allegation that has been made, beyond a
reasonable doubt.
⁃ The accused is in jeopardy of conviction only for the offence charged, and for any offences that are
“included” in the criminal charge.
R v G.R. – The court has stressed the importance charging documents (by information or indictment)
holding that “it is fundamental to a fair trial that an accused know the charge or charges he or she must
meet”.

THE VALIDITIY OF THE CHARGE

Joinder and Severance of Charges
⁃ Rules surrounding indictment – was CL, now Code.
⁃ An indictment (Form 4) can contain any number of counts (each count covers a single transaction).
⁃ Possible to hold trial on one or more indictments simultaneously – accused must consent or trial judge
believed it is in the interest of justice.
⁃ The charges are then jointly charged into a single indictment.
o Restrictions – Any charge cannot be joined with murder (s. 589) – exception, if offence arises out
of the same transaction or accused consent to the joinder.
⁃ Section 591(3) – criteria to join counts. Judge can order an indictment to be severed in order to send
some counts or some co-accused to a separate trial.
⁃ Onus on the accused, on BOP, to show separate trials should be held (R v Cross).
⁃ Application to sever may occur later in trial, however some prejudice must arise that was not present at
the beginning (R v D.A.C.).

Joinder and Severance of Accused

⁃ Can sever multiple accused form the same indictment and hold separate trials.
⁃ General Rule – accused who are alleged to have committed a crime together should be tried together.
⁃ Section 591(3) – Judge has discretion to sever trials where required in interest of justice.
⁃ The Court did not to grant separate trials in circumstances b/c there was not sufficient evidence that the
co-accused would actually have given evidence useful to the applicant even if he were made
compellable (Agawa).
⁃ The fact that some evidence will be admissible against one accused but not others is also relevant, but
not sufficient to require severance.

Content of Charges
⁃ Two interrelated rules dealing with indictments:
⁃ (1) Section 581(3) – A count shall contain sufficient detail of the circumstances of the alleged offence to
give the accused reasonable information with respect to the act or omission to be proved against
him and identify the transaction referred to but otherwise the absence or insufficiency of details
does not vitiate the count.
⁃ (2) The Surplusage Rule – It is open to a court to find that detail actually provided in a count is
‘surplusage’ (additional and unnecessary detail), and the fact need not be proven, despite being
alleged.
⁃ R v N.C. – Accused charged with trafficking cocaine. Substance in fact was baby powder and aspirin.
Would be an offence still under NCA. Held – accused charged with trafficking cocaine, thus Crown
obliged to prove substance was cocaine. Failure = acquittal.
⁃ R v Saunders – Multiple accused’s charged with conspiracy to import heroin. Held – Charge would have
stood, if it did not specify heroin; but Crown had to prove conspiracy related to that narcotic.
⁃ R v Hanna – Accused charged with theft of gravel of NSPC. Only evidence of ownership showed gravel
owned by Power Corp. Held – no possibility that the accused could fail to identify the event that
gave rise to the charged.
⁃ Vezina – accused charged with fraud, information specified Bank of Montreal victim. Crown unable to
prove Bank suffered loss. Held – Information would have been valid without specifying victim.
Thus, Crowns inability to prove was mere surplusage. (NO NEED TO PROVE BMO FACED
LOSSES, STILL FRAUD)
⁃ If a detail is to be considered surplsuage depends whether the accused’s defence will be prejudiced 
Saunders – one accused took stand, testified had conspired to import narcotics, but not in this
particular heroin instance. Held – Not holding the Crown to proof of the particular narcotic alleged
would have been prejudicial; Vezina – The accused wouldn’t conduct defence differently had Bank
as victim allegation not been made. No prejudice, thus Crown doesn’t have to prove that fact.

Remedies for a Defective Charge

Potential Remedies
⁃ What to do when a charge is alleged not to be sufficient b/c it does not comply with the necessary
requirements. Error in indictments, can:
o Be so flawed that it is an absolute nullity – a trial judge has no jurisdiction to hear the matter,
charge must be quashed. (The Crown can lay new information and not violate Double
Jeopordy rule).
o The charge might be flawed, but not a nullity – trial judge may amend the charge (grant
adjournment to remedy prejudice).
o Charge contains an error, which can be made smaller by s 601 – which govern amendments to
defective counts.
⁃ These provisions do not completely remove the possibility of a charge being quashed (Moore –
Preference is amendment over quashing. But a technical error here led to acquittal).
⁃ Crown may not be able to amend at all (R v Tremblay – The accused called expert witnesses to show
that acts in a bawdy house were not indecent. After the Crown applied to amend deleting the words
practice of indecency. SCC held trial judge correctly refused, would have caused irreparable
prejudice).
⁃ Crown may be require to provide particulars when count is flawed (s. 587).
⁃ Accused cannot use particulars as a way of limiting the options available to the Crown (R v Thatcher –
Crown thought accused either killed wife personally or hired someone).
⁃ A charge is defective when it departs from the golden rule- that the accused is entitled “to be reasonably
informed of the transaction alleged against him, thus giving him the possibility of a full defence and
a fair trial”.
Insufficient Charges
⁃ Often the requirement in s. 581 that a count must contain sufficient detail to give the accused reasonable
 information and to identify the transaction.
⁃ Test – The indictment must lift the charge “from the general to the particular” (R v Brodie).
⁃ An accused must be reasonably informed of the charge (Cote).
⁃ Meaning of insufficiency – an error egregious enough that the charge must be quashed (Moore).
⁃ An information will not be held to be a nullity if the information specifies the time, place, victim and the
offence. Even if the not precisely stated (ie. exact time).
⁃ R v B.(G.) No 2 - The date of the offence is not generally an essential element of the offence of sexual
assault. It is a crim no matter when it is committed.
⁃ A count can be struck down on the basis that it does not disclose an offence known to law (Regina v
Fremeau).
Duplicitous Charges
⁃ A duplicitous count is one that charges the accused with committing two different offences, and its
objectionable because the ambiguity prevents the accused from knowing the case to meet.
⁃ Essentially, the accused is given too much information.
⁃ This is a distinct rule from s. 581(1), which limits a count to a single factual situation; duplicity rule limits it
to a single legal issue.
⁃ Sault Ste. Marie – Held - the section had created one offence, polluting, which could be committed in a
number of ways. The accused would have no doubt about the case to meet, and so no objection
should be taken to the charge.
⁃ R v Fischer – Charge did not differentiate between general theft section and theft by a person required to
account – suggested the accused was guilty of both; not duplicitous.
⁃ Conspiracy cases – a single count charging an accused with more than one conspiracy = duplicitous.
⁃ If a charge is duplicitous, it is not fatally flaws. Section 590(2)(b) allows an accused to apply to have a
count that is “double or multifarious” either amended or divided into two or more counts, an
application that is to be granted where the ends of justice require it.
⁃ Only trial judge has jurisdiction to divide a count – when it “embarrasses (the accused) in his defence”
(Broad criteria – gives trial judge great discretion).
⁃ An appeal court is not to interfere with the trial judges discretion unless the judge acted unjudicially or the
decision resulted in an injustice (Litchfield).
⁃ Lilly – real estate broker charged with theft. The accused had two separate defences to the single
charge. The count should have been divided when this became apparent at trial; especially b/c jury
trial.
THE ADVERSARIAL PROCEEDING
⁃ A trial is the opportunity for the Crown prosecutor to prove the specific allegations made in the charge
(information or indictment) beyond a reasonable doubt.
⁃ The key characteristics of the Canadian criminal trial is therefore the specific allegation.
⁃ This is done during a trial.
Pleas
⁃ Section 606 – Sets out the pleas available to an accused charged with an offence (guilty, not guilty,
special pleas or autrefois acquit (formally aquitted), autrefois convict (Double Jep), and pardon).
⁃ Special pleas = amount to claim that the matter has already been dealt with.
⁃ Guilty = an admission by the accused of performing the physical actions, that make up to offence,
accompanied by the mental state. Waive trial.
⁃ Not Guilty = demands the Crown proves all elements of the offence and disproves the existence of any
defences.
⁃ An accused can later withdraw a guilty plea if ‘there are valid grounds for being permitted to do so’. This
could lead to a plea being set aside.
⁃ Section 650 – requires an accused to be present in court during the whole trial, and present for a plea.
⁃ Section 800 – permits an accused charged with a summary conviction offence to appear by counsel.
⁃ Pleas entered by counsel to indictable offences, are binding on accused who was present at the time (R
v Dietrich).
Order of Trial
⁃ Trial procedures – set out in Parts XIX, XX, and XXVII.
o Trial proceeds continuously unless adjournment granted.
o Accused to be present - can be excused by judge.
o Judge can ask questions during trial, may raise bias. Juries can ask limited questions.
⁃ Opening Statements – Crown presents case first with opening statement to jury – explain theory and
evidence to be called.
o Crown not obliged to call all witnesses announced; jury may make adverse inferences.
o Normally the defence is not entitled to make an opening address to the jury immediately following
the Crown’s opening remarks.
o Trial judge at discretion to allow this. Defence wont have to wait until end of Crown’s case.
⁃ Presentation of the Crown Case
o Following opening statement – Crown counsel is required to present evidence providing the
charges against the accused.
o Evidence taken under oath, accused entitled to X-Exam witness’s evidence.
o An accused can concede various parts of the Crown’s case.
o Crown has discretion in how it presents its case.
o Crown not required to call every witness – however, trial judge may call ‘court’s witnesses’.
Defence can then X.
o Section 652 – allows a jury to “have a view” in order to see any place person or thing.
o Section 545 – allows a trial judge to imprison a witness who refuses to testify for periods of up to 8
days at a time.
⁃ Presentation of the Defence Case
o Application for a Direct Verdict – an accused may apply for a DV prior to defence presenting it’s
evidence.
o Power arises at CL – direct verdict = no case to meet, accused is not guilty, acquitted.
o Where the Crown fails to providence evidence on an essential element of the offence, the trial
judge can direct the acquittal of the accused.
o Direct verdict can be granted on charge laid, but the trial will continue to decide whether the
accused is guilty of an included offences (R v Titus – acquitted on 1st degree murder, but
trial continued to see if guilty of 2nd degree).
o Defence Presentation of Evidence – Accused that doesn’t succeed or make direct verdict,
entitled to call evidence.
o Defence to exercise discretion on how to present case.
o Accused is a competent witness at trial, but not compellable. Failure to testify cannot be made the
subject of comment by the judge or prosecutor (CEA s.4(6)). (Evidence Act)
⁃ Reopening the Crown’s Case
o After defence presents evidence, trial moves to closing arguments.
o Splitting the case (leading some of the Crown’s evidence after accused’s case has been
presented), not allowed.
o Crown may be able to reopen its case – depends on whether the accused will be prejudiced in
making a defence.
o Decision at trial judges discretion – in the interest of justice.
o Generally this is new evidence – unforseen by the Crown and in the interest of justice.
o R v Sylvester – Officer received phone called after closing arguments. Caller claimed they lied on
the stand. Crown permitted to reopen, present this evidence. Defence allowed to cross
and make further submissions.
⁃ Rebuttal Evidence
o Rebuttal evidence must concern matters that the Crown is reasonably surprised to find in issue. (R
vBiddle)
o If the test for meeting rebuttal evidence is met, then it cannot be said that the accused did not know
 the case to meet.
o Section 650(3) applies where the Crown has led rebuttal evidence, permitting the accused to
make full answer and defence.
⁃ Reopening the Defence Case
o Open to the defence to apply to reopen its case – at trial judge’s discretion.
o Some authorities suggest that it is possible to apply to admit new evidence not only after argument,
but indeed sometime after a verdict has been reached.
⁃ Addresses to the Jury
o Closing Arguments By Counsel – Section 651 – says if the defence has not called evidence,
then the Crown argues first, but if the defence has called evidence, then it argues first.
o Charing the Jury – Section 650.1 permits a judge to confer with Crown and the defence with
regards to what matters should be explained to the jury.
 The purpose of charging the jury is to “decant and simplify” the case, leaving the jury with a
sufficient understanding of the facts as they relate to relevant legal issues.
o Trial judge has considerable discretion regarding the content and form of charge.
o The judge’s charge should be fair, dispassionate, and should be the last thing said to the jury
before they commence their deliberations.
o A charge should review the facts, prosecutor’s/accused’s theories of the case, and the defences
which arise for the jury. Trial judge – charge on all defences that arise on the facts,
whether accuses raised them or not. Particular issues in case – (ie. use of criminal record,
circumstantial evidence, ID evidence, alibi evidence).
o Instructions should cover the procedural aspects of the jury deliberations (ie. hung jury).
o Judge may offer opinions on matters of fact in instructions.
o After charge, judge consults with counsel – opportunity to object to charge.
o Re-charging the Jury – Where a judge re-charges following submissions from counsel, same
criteria apply as the original charge.
o A re-charge may rectify an error in the original charge – thus, whole charge is satisfactory.
o May be required to re-charge after deliberations begin b/c jury has sent questions to judge – this is
significant.
o Jury asking about issue in case – instructions must be repeated, correct and comprehensive.
o An error in a re-charge following a question for the jury cannot be saved under original charge, b/c
the fact that the question was asked shows the jury didn’t adequately understand the
original charge.
The Presumption of Innocence and the Ultimate Standard of Proof
⁃ At a Canadian trial, the accused is presumed to be innocent, a right guaranteed by section 11(d) of the
Charter.
⁃ This means that ultimately, at the end of the whole case, the Crown must prove the guilt of the accused
beyond a reasonable doubt.
⁃ This is the Crown’s ultimate burden in both a criminal or regulatory prosecution.
Proof Beyond A Reasonable Doubt
R v Lifchus – Proof beyond reasonable doubt does not require proof of a case to an absolute certainty. The
reasonable doubt test should never be put in terms of common sense, everyday use. The jury should be
instructed that a reasonable doubt is a doubt based on reason and common sense which must be logically
based on the evidence and it must not be based on sympathy or prejudice and must not be imaginary or
frivolous. Proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable
doubt.
Credibility and BARD
R v Dinardo – When a case turns largely on determinations of credibility, the sufficiency of the reasons
should be considered in light of the deference afforded to trial judges on credibility findings. Deficiencies will
rarely merit intervention on appeal. However, a failure to sufficiently articulate how credibility concerns were
resolved may constitute reversible error. Where the defence rests on the overall lack of credibility and
reliability of the complainants testimony, it is incumbent upon the trial judge to explain, how these difficulties
were resolved to reach a verdict beyond a reasonable doubt.
Jury and BARD
R v J.H.S – Appeal from sexual assault conviction. The accused, who denied all allegations of impropriety,
was tried before a judge and jury. The complainant and the accused were the principal witnesses. The trial
judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was
not a choice between two competing versions of the events. The jury convicted. Held - The reading the
charge as a whole, the instruction to this jury satisfied the ultimate test formulated by Cory J. in W. (D.) as
being whether "the jury could not have been under any misapprehension as to the correct burden and
standard of proof to apply." The SCC was satisfied that the trial judge reminded the jury that they must
consider all of the evidence when determining reasonable doubt and that they should not decide whether
something happened “simply by comparing one version of events with another, or choosing one of them”.

Other Burdens
⁃ While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of the case, there are
other burdens of proof that operate during the criminal process:
o Evidential burdens – that some rules of law impose in order for a party who wishes a matter to be
placed in issue to succeed in having that matter placed in issue.
o The accused must at times satisfy an evidential burden in order to have a matter placed in issue.
o There are numerous rules of evidence called “presumptions” that operate to assign burdens of
proof on the accused. A presumption is a rule of law that directs judges and jury to
assume that a fact is true (known as the “presumed fact”) in any case where the Crown
proves that another fact is true (known as the “basic fact”), unless the accused can rebut
the presumed fact according to the assigned standard of proof. Those presumptions
known as “mandatory presumptions” can be rebutted by the accused simply raising a
reasonable doubt about whether the presumed fact follows from the basic fact. Where a
mandatory presumption is rebutted, the “presumed fact” falls back into issue
notwithstanding the presumption, and must be proved by the Crown in the ordinary way,
without the assistance of the presumption.
⁃ Other presumptions operate as “reverse onus provisions”, deeming the presumed fact to exist where
the Crown proves the basic fact unless the accused disproves the presumed fact on the balance of
probabilities.
⁃ A presumption can be easily recognized as a “mandatory presumption” because the legal rule raising the
presumption will use the term “evidence to the contrary” to describe the burden of rebuttal.
⁃ A presumption will be interpreted as a “mandatory presumption” where it fails to set out the required
standard of rebuttal because of section 25 (1) of the Interpretation Act.
⁃ Many presumptions operate in alcohol driving prosecutions and are used to determine whether the
accused has more than a legal amount of alcohol in his blood while driving or having care or
control of a motor vehicle.
o For example, section 258(1)(a) – a reverse onus provision, ss. 258(1)(c), (d.1), and (g) – all
mandatory presumptions.
⁃ Presumptions are prima facie contrary to the Charter and must be saved under s.1.
R v Arcuri – The meaning of prima facie case. The test for committal is the same whether the evidence is
direct or circumstantial. Where there is direct evidence as to each element of the offence, the accused must
be committed to stand trial; even if the accused adduces exculpatory evidence. If the Crown’s case consists
of circumstantial evidence, the judge must engage in a limited weighing of the evidence because there is an
inferential gap between the evidence and the matter to be established. The judge must determine whether
the evidence is reasonably capable of supporting the inferences that the Crown asks the jury to draw.
R v Cinous – If the accused wants to have a defence considered, the accused must show that the defence
has an “air of reality” to it. If the accused succeeds the judge must consider the defence, and in a jury trial
must direct the jury on the law that applies to that defence. See Defence of Person.
R v Fontaine – same as above for Defence of automatism.
R v Oakes – The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable
and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the
limitation. While the standard of proof under this section 1 is the civil standard, this test must be applied
rigorously and where evidence is required in order to prove the constituent elements of a section 1 inquiry,
and this will generally be the case, it should be cogent and persuasive and made clear to the court the
consequences of imposing or not imposing a limit. The court will also need to know what alternative
measures for implementing the objective were available to the legislators when they made their decisions. It
may be however that there will be cases where certain elements of the analysis under section 1 are obvious
or self-evident.
R v Boucher – The standard of proof that must be met to rebut the presumption of identity and accuracy is
reasonable doubt. The defence has no burden of proof.

The Neutral Impartial Trier

⁃ A neutral, impartial Trier of law makes the legal decisions, whereas a neutral impartial Trier of fact makes
factual findings at the end of the trial.
⁃ Most criminal trials conducted by judge alone - judge performs the role of both the Triers.
⁃ In a Jury trial: judge = Trier of law; jury = Trier of fact.
o Judge makes all legal and procedural decisions during the trial, and directs the jury, by training
them in the law that applies. Jury then makes the factual decision and renders the
holding.
⁃ Sentence is a question of law  sentencing done by judge and not jury.
o The jury should not be told of the possible sentence for fear that his will inspire sympathetic rather
than a legal verdict.
⁃ A neutral, impartial judge does not mean he is passive. Nevertheless, the essence of the adversarial
system is that the parties initiate the proof that is brought forward, not the judge.
R v Gunning – The air of reality test applies to affirmative defences such as self-defence, but it is never the
function of the trial judge in a jury trial to assess the evidence and make a determination that the Crown has
proven one or more of the essential elements of the offence and direct the jury accordingly. It does not
matter how obvious the judge may believe the answer to be or that the judge may be of the view that any
other conclusion would be perverse. The trial judge may give an opinion on the matter but never a direction.
R v Hamilton – In this case, the judge assumed the combined role of advocate, witness and judge. This
fundamentally changed the nature of the proceedings and contributed to errors in principle reflected in the
sentence imposed. A trial judge does not have to remain passive during the sentencing phase of the criminal
process. Trial judges can, and sometimes do, assume an active role in the course of a sentencing
proceeding. In a criminal trial, it is generally left to the parties to choose the issues, stake out their positions,
and decide what evidence to present in support of those positions. The trial judge’s role is to listen, clarify
where necessary, and ultimately evaluate the merits of the competing cases presented by the parties.

Powers of the Court

⁃ Control over the Court Process
o Trial judge significant discretion on how to run trials – curtail X-Exam, prevent irrelevant or
harassing questions, and ask questions of witnesses.
o Test – Whether a reasonably minded person who had been present throughout the trial would
consider that the accused had not had a fair trial.
o Section 485 – preserves the court’s jurisdiction over an accused despite a failure to comply with
any of the Code’s provisions concerning adjournments or remands.
o Judge has discretion around circumstances in which evidence will be heard.
o Judge may exclude some or all members of the public from the trial – this violates section 2(b)
Charter freedom of press, but may be saved s a reasonable limit.
o Section 486.1 gives a judge power in the manner in which some witnesses are allowed to testify.
o Trial judge may express opinions on the facts – but must not create a reasonable apprehension of
bias.

⁃ Publication Bans
o In exceptional circumstances a trial judge may order publication ban.
o Only in certain circumstances b/c they conflict with the open court principle.
o Section 486.4- A judge may ban the publication of any information that would identify the
complainant or a witness in a trial for a variety of listed sexual offences.
o Section 486.5 – bans publication on identity of victim or witnesses.
o Section 276.3 – prevents reporting of information regarding an application to admit evidence of
previous sexual activity.
o Section 648 – prevents the publication of evidence from a trial while jurors are separated before
beginning deliberations.
o CL power of judge to grant publication bans – Dagenais/Mentuck TEST for publication bans:
 A publication ban should be ordered when (a) serious risk to the proper administration of justice is
required b/c reasonably alterative measures will not prevent the risk and (b) the
salutary effects of the ban outweigh the deleterious effects on the rights and
interests of the parties and the public, including the right to free expression, the
right of the accused to a fair and public trial, and the efficacy of the administration
of justice.
 Onus on person seeking ban.

⁃ Contempt of Court
o CL power of finding people in contempt of court is expressly preserved by s.9
o Appeal procedures from contempt of court s. 10.
o Contempt of court – (1) contempt committed in the face of the court; (2) contempt not committed
in the face of the court.
o Superior courts have jurisdiction over both; inferior courts only (1).
o Contempt can cover different behaviours – insolence to the court, refusal to answer questions while
under oath.
o Applied to accused, counsel or witness.
o A judge can respond to contemptuous behaviour either (1) through the ordinary procedures, which
give the accused the usual procedural guarantees of a criminal trial; (2) through a more
summary procedure (only used where urgent and imperative to act immediately).
o Procedure - (1) person is put on notice to show cause as to why she should not be found in
contempt of court; (2) adjournment should be given – for person to obtain counsel; (3)
Found in contempt – allowed to make representations as to sentence.
o Failure to follow process = error of law.

⁃ Mistrials
o Judge has authority to declare a mistrial at virtually any point in the proceedings.
o Inappropriate publicity, errors during jury selection, improper comments by Crown during opening
statement/closing submissions, or inadmissible evidence accidently given to jury  all
can lead to mistrial (remedy of last resort).
o Other remedies – adjournment, reopening the case, clearly instructing the jury that they are to
ignore the submission or information they ought not have heard.
o The general principle is that a mistrial is declared if the Crown’s jury address is so improper that it
deprives the accused of the right to a fair trial.
o Accused or Crown can apply for mistrial – in jury or judge alone case.
o Section 653 –a trial judge may declare a mistrial if satisfied that a jury is unable to agree on a
 verdict.
o A new trial can be held following a mistrial, and the accused cannot plead autrefois acquit or
autrefois convict because of mistrial.

The Role of the Prosecutor

⁃ The prosecutor is an advocate, but also a quasi-judicial officer.
o This means that the prosecutor cannot act solely as an advocate, but must make decisions in the
interest of justice and the larger public interest, including the interests of the accused.
⁃ The prosecutor has many discretionary decisions that can be made and should act as a “minister of
justice”.
R v Cook – There is no duty of the Crown to call particular witnesses including the complainant. References
in case law to the Crown calling all witnesses who are “essential to the narrative” refers only to the burden of
proof in that where the narrative of the case is not adequately set forth, the elements of the offence might
not be properly proven and the Crown risks losing the case. There is no duty on the Crown to call particular
witnesses including the complainant. In the rare case where the tactical disadvantage to the defence calling
a potentially hostile witness would be manifestly unfair, the trial judge is entitled to consider this factor in
determining whether to call the witness him or herself.
R v Proulx – A prosecutor may apply to the court for a probation order in addition to any punishment that
may be imposed for that offence. The offender is required to appear, and the prosecutor is required to be
heard before the court makes the order to change the sentence (s. 732.2).?
Krieger v Law Society of Alberta – This case describes the scope of judicial review generally of the
exercise of powers of the Attorney General. In summary, within the course of prosecutorial discretion, the
courts cannot interfere except in circumstances of flagrant impropriety. Prosecutorial discretion refers to
decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it.
Decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope
of prosecutorial discretion and are governed by the inherent jurisdiction of the court to control its own
processes once the Attorney General has elected to enter into that forum.

The Role of the Defence

⁃ The defence counsel is an officer of the court, and therefore must be respectful and honest with the court
and must not attempt to mislead the court as to the state of the law.
⁃ Subject to this and the rules of law and ethics, the defence counsel is obliged to act solely in the interest
of the accused, advising the accused on the implications of, and propriety, of pleasing guilty,
securing advantage of all procedural and constitutional protections available to the accused that
are not properly waived; and if the accused pleads not guilty, preparing the case fully, challenging
the sufficiency of prosecutorial evidence, and advancing all defences that properly arise.
GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION
POLICE POWERS
⁃ Police officers are independent of the Crown prosecutor. Independence important - permits prosecutor to
act as quasi-judicial officer, and act as an investigator.
⁃ Police often seek legal advice from Crown - wording of search warrants, etc.
⁃ Powers of police constrained by law (derived from statute, CL or implications from either) – in the interest
of securing liberty.
⁃ Police powers limited by Charter - section 8 (unreasonable search and seizure); section 9 (arbitrary
detention).
o Courts balance of police investigations and law enforcement. The law of evidence supports limits
on police powers.
o Unconstitutional search or arbitrary detention - evidence obtained as a result may be excluded
from consideration.
General Police Powers
Statute
⁃ Primary source for police powers is the Code.
⁃ Powers for police to directly enforce the law
o Section 494-528 – allow police officers (and others) to arrest an accused or compel an accused’s
appearance in court via a summons or appearance notice.
o Section 25-33 – powers allowing the use of force to execute powers authorized by law, to prevent
the commission of some offences, or to prevent a breach of the peace.
⁃ Powers aimed at investigating crime – search warrants and wiretaps
o Section 487 – general search warrant provision, allowing a justice to issue a warrant authorizing
the search of a “building, receptacle or place” and the seizure of evidence found there.
o Justice must be satisfied that that search will produce evidence with respect to the commission of
an offence.
o Warrant may be issued on reasonable grounds that a search will find (i) something in respect of
which an offence has been committed; (ii) the whereabouts of a person believed to have
committed an offence; (iii) property intended to be used to commit an offence; or (iv)
property relating to a criminal organization.
o Individual police investigative powers – i) use a tracking device to monitor the location of a person
or object, (ii) install number recorders on a telephone, (iii) obtain blood samples, (iv)
obtain handprints, fingerprints, footprints, or impressions of teeth, (iv) install a wiretap
device.…. Etc.
o Section 487.01 – peace officer can apply for a warrant to ‘use any device or investigative
technique or procedure or do anything’ that would be an unreasonable search and seizure
if it were not done under a warrant.
o Other statutes create investigative techniques – ie. Ontario Coroners Act (take samples of bodily
fluids in death investigations), Customs Act (search of people crossing the border),
Firearms Act (inspectors without a warrant allowed to enter premises to search for
prohibited firearms on reasonable grounds).
Common law powers
⁃ Historical CL Powers – CL powers include power of police to search incident to an arrest or to enter a
private dwelling in “hot pursuit” of a person fleeing arrest.
⁃ Search incident to an arrest – Cloutier v Langlois - power for police officers to search a person who
has already been arrested – to seize possessions, guard safety of police/accused, prevent
escape/provide evidence against prisoner.
⁃ To do more than a ‘frisk’ search, police must have reasonable and probable grounds to believe that a strip
search is necessary in the particular circumstances of the arrest – should be conducted at police
station, unless pressing reason otherwise (R v Golden).
⁃ Arrest in private dwelling – police have the CL power to arrest within a private dwelling without
permission of entry (Eccles v Bourque).
⁃ Hot pursuit case, right extends beyond indictable offences to provincial offences (R v Macooh).
⁃ Warrantless entry into a dwelling to arrest would be prima facie unreasonable and would prima facie
violate the Charter (R v Feeney).
⁃ Ancillary Powers Doctrine (WATERFIELD TEST)
o It is always possible for new CL police powers to be created.
o TEST – whether police act was lawful due to a CL power (Waterfield):
 (1) Does the conduct fall within the general scope of any duty imposed by statute or recognized by
CL
 (2) does the conduct, albeit (although) within the general scope of such a duty, involve an
unjustifiable use of powers associated with the duty
o Test has been used to support police powers to protect foreign dignitaries, to enter premises
without a warrant, to stop cars randomly to check for impaired drivers, set up road blocks,
etc.
o Stenning – Test applied; officer may have been a trespasser, he was in execution of his duty b/c
 he was investigating, and thus, the accused was guilty of assaulting an officer in the
execution of duty (in his home).
⁃ Default CL Powers
o Section 24(2) Charter allows for the exclusion of evidence based on breach of Charter right.
o If no Charter violation is found, the pre-Charter position on evidence applies – no basis to exclude
relevant evidence (so long as it was reliable, means by which it was obtained did not
matter).
o If certain activities will not constitute a Charter breach, police are authorized to engage in those
particular activities despite the absence of any statutory power.
o If no explicit statutory power exists, and no pre-existing or ancillary CL power will be invoked, the
evidence will be admitted just as though the police were acting with authority.
Consent
⁃ Principle - Police need no statutory or CL authority to obtain evidence by making a request of a suspect.
⁃ There is no statutory or CL authority allowing the police to compel lineups, however, consent of a suspect
is a perfectly adequate source of authority from the police perspective.
⁃ Limits on accused consent exist – ie. DNA sample provided for one offence, but used for other purposes
violates guarantees about unreasonable search and seizure. However, if accused provides DNA
samples without attaching limits, no privacy, full consent.
⁃ Mere compliance is not sufficient to show that the accused is actually consenting.
⁃ Consent, even if given initially, can be revoked (R v Thomas – policed entered house, but consent
revoked before owner of the house assaulted police officer. Thus, police officer was not acting in
the execution of duty and the accused was acquitted).

Powers of Search and Seizure

⁃ Barron v Canada – The SCC said that the decision to grant or withhold the warrant requires the
balancing of two interests
o (i) that of the individual to be free of intrusions of the state and
o (ii) that of the state to intrude on the privacy of the individual for the purposes of law enforcement”.
⁃ The state’s statutory ability to intrude on an individual to become greater in recent years.

Search
⁃ “Search” defined with a purposive approach, based on the goal of s. 8 Charter. Intent of section is to
protect individuals from unjustified state intrusions upon their privacy. Thus, a state investigative
technique is or is not a search depending on whether it infringes on a person’s reasonable
expectation of privacy.
⁃ “Seizure” measured based on whether the accused’s reasonable expectation of privacy was infringed.

⁃ There is a distinction between evidence that is seized and evidence that is merely found.
⁃ Stillman – the accused had not abandoned a tissue, since he was in custody for many days and could
not possibly avoid creating bodily samples at some point.
⁃ Nguyen – police officer offered an accused a piece of gum while transporting him from detention to court.
He knew he would discard the gum before entering the courtroom. Held – seizure and s. 8
violation.

Search with a Warrant

⁃ Searching Places - Section 487 – This section allows the issuance of a warrant for the search of a
“building, receptacle or place” if satisfied on oath of reasonable grounds that evidence falling into
one of the 4 categories will be found.
o (i) anything on or in respect o which an offence has been committed;
o (ii) anything that will provide evidence regarding an offence or the location of a person suspect of
committing an offence;
o (iii) anything reasonably believed to be intended to be used to commit an offence for which the
person could be arrested without warrant;
o (iv) offence related to property.
⁃ The warrant must be issued by a justice (Hunter v Southam).
⁃ The warrant is issued to a particular person who is responsible for how the search is carried out (R v
strachan).
⁃ “Place” includes the area surrounding a building – thus, a search of the area without a warrant is prima
facie unreasonable (Hunter).
⁃ Warrants are issued on an ex parte basis.
⁃ Section 448 - a warrant shall be executed by day unless reasonable grounds for executing it by night are
provided to the issuing justice, and the warrant itself authorizes its execution by night.

⁃ Search of the Person – DNA warrants

⁃ Section 487.04 – 487.091 - The basic requirements for a DNA warrant necessitate that a provincial court
judge be satisfied by information on oath that a bodily substance connected with an offence has
been found, that a person was a party to the offence, and that DNA analysis of the substance will
provide evidence about whether the bodily substance was from that person.
⁃ DNA warrants are only available in the case of “designated offences” – predominantly sexual offences
and offences causing death of bodily harm (S. 487.04).
⁃ The judge is required to believe that issuing the warrant is in “the best interest of the administration of
justice”.
⁃ Section 487.05(2) – requires the judge to have regard to “all the relevant matters” – nature of offence,
circumstances of its commission, qualified person available to take sample.
⁃ Section 487.07(1) - Peace officer taking sample is required to inform the suspects of the content of the
warrant, the procedure for taking sample, and authorization to use force.
⁃ Where an accused is convicted of a primary offence (sexual assault or homicide), the court shall order a
DNA sample to be taken for the DNA databank. For secondary designated offences, the court may
order if it is in the best interest of the administration of justice.
⁃ “Impression Warrant” – allows a peace officer to obtain handprint, footprint, tooth impression, or other
body part.

⁃ Other statutory search Warrant Provisions

⁃ Generally these provisions share the basis characteristics of section 487 – warrant can only be issued if a
justice is satisfied by information on oath that there are reasonable grounds to authorize
investigation.
⁃ Some warrants are for purely investigative purposes, others are for tracking devices, etc.
⁃ Reviewing Warrants – there is no provision for appeal from the issuance of a warrant (Knox
Contracting v Canada).
⁃ Can challenge the process used to issue a warrant by:
o Certiorari – review the process by which the warrant was issued. This process does not result in
either the return of the items seized or their exclusion as evidence (R v Zevallos).
Quashing the warrant, renders the search warrantless, thus prima facie unreasonable and
violates s. 8.
⁃ Challenge of warrants best left for trial – violation/remedy dealt w together.
⁃ Central issue in reviewing warrants is whether the requirements for its issuance under the Code have
been met  Q: Whether there was evidence upon which the issuing judge could have decided to
issue the warrant.
⁃ Evidence used to justify the warrant may be removed – then the Q is if the remaining evidence could
have still justified the warrant.
⁃ Reviewing courts can quash a warrant based on either the inadequacy of the material remaining after
some information is excised, or based on behaviour of the police that intentionally misled or
 otherwise subverted the process of prior authorization. Warrant quashed = search conducted on
warrantless basis.

Searches without Warrants

(1) A warrantless search is prima facie unreasonable under s. 8 (Hunter v Southam)
⁃ An accused’s reasonable expectation of privacy is an important consideration in deciding how reasonable
a search or seizure has been.
⁃ Reasonable expectation of privacy requires balancing state and individual’s interests.
o Individuals – person has greater privacy interest when the search involves a body cavity
(Simmons) as opposed to the trunk of ones car (Wise).
o State – a person should reasonably expect less privacy while crossing an international border
(Lewis) or when placing items in a school locker where officials are require to provide a
safe environment, maintain order and discipline (M(M.R.)).
⁃ Edwards – no charter protection for “privileged guests” in an apartment, lacking the ability to regulate
access to it by others.
⁃ Belnavis – a passenger in a car has no reasonable expectation of privacy.
⁃ Reasonable expectation of privacy includes – (1) personal privacy (ie. strip-searched); (2) Territorial
privacy (searches of places contingent on place being searched – ie. home more privacy than
car); (3) Informational privacy. (Tessling – FLIR territorial privacy not informational. Not invaded.
Gives reading on heat. Information alone, meaningless).
(1) Framework for minimum Charter standards are set out in R v Collins.
⁃ Once it has been determined that an individual has a reasonable expectation of privacy, the issue
becomes whether the search itself is reasonable.
(i) Is the search authorized by law?
⁃ Police derive authority from statute, CL and consent.
⁃ The Code and other statutes allow warrantless searches in certain circumstances.
⁃ CL – search incident to arrest, allows warrantless searches.
⁃ Ancillary Power Doctrine – allow creation of new, CL, warrantless powers.
⁃ It is Parliaments role, not the courts, to determine what new search powers are necessary (Wong).
⁃ Statute – CDSA (Controlled Drugs and Substances Act) and Code.
o Section 11 CDSA – allows a peace officer to obtain a warrant to search a place for a controlled
substance, for anything in which a controlled substance is concealed, for offence related
property, or for evidence in respect of an offence under the CDSA.
o Section 11(5) CDSA – a peace officer is entitled to search any person found in the place, if the
officer has reasonable grounds to believe that the person has the controlled substance or
thing set out in the warrant.
o Section 11(7) CDSA – permits an officer to conduct a warrantless search when the grounds for a
warrant exist but exigent circumstances make it impracticable to obtain a warrant.
o Section 487 Code - does not permit search of the person.
⁃ CL – Search of the person often authorized on warrantless, CL, basis.
o Search incident to arrest – do not require the police to have reasonable grounds for the search. It
simply flows from that fact that the accused had been arrested (Debot).
o The Ontario Court of Appeal has decided that searches of a home incident to arrest are not
allowed, other than in exceptional circumstances (R v Golub).
o The actual purpose motivating the search is a central issue (Caslake). The power to search
incident to arrest depends essentially on 3 questions – was the arrest lawful? Was the
search truly incidental to that arrest? Was the search conducted in a reasonable manner?
(Stillman).
o The police must be able to point to reasonable grounds to believe that a strip search, rather than a
usual pat-down, is required in the particular circumstances (Golden).
o Search during an investigative detention – CL power to search during an investigative detention (R
 v Mann).
There must be independent reasonable grounds specifically justifying the search.
o The search must be conducted in a reasonable manner (Collins). The search must be limited to a
pat-down, unless it gives reasonable grounds to believe that a more intrusive search is
necessary.
o Exigent Circumstances - are not the justification for the search itself, but rather for proceeding
without a warrant.
o “Absent exigent circumstances, there is a requirement of prior authorization by a judicial officer as
a precondition to a valid seizure for the criminal law purposes” (Colarusso).
o Exigent circumstances in search and seizure context is “an imminent danger of the loss, removal,
destruction or disappearance of the evidence if the search or seizure is delayed” (Grant).
⁃ Consent – warrantless search will be authorized if the suspect consents to the search.
o Consent valid? Extent of consent?
o “Acquiescence and compliance signal only a failure to object; they don’t constitute consent” (R v
Wills).
o For consent to be a valid waiver of the accused’s s.8 right, the accused must have at least
“sufficient available information to make the preference meaningful” (R v Borden).
o The police must disclose any specific use they intend at the time they take the sample (Arp –
provided hair samples).
(i) Is the law itself reasonable?
⁃ Where a statutory warrantless search power exists, courts tend to read down the power in a way that
makes it coincide with constitutional minimum standards.
⁃ If the power in question is a CL one, asking whether the search is authorized by law require the court to
decide the extent of the CL power.
(i) Was the manner in which the search was carried out reasonable?
⁃ Search power may exist, but the manner in which it was conducted may be unreasonable.
⁃ “Manner” = physical way search carried out.
⁃ Collins – accused searched for drugs, officer grabbed her by the throat. Held – Search power existed,
but search unreasonably carried out.

⁃ Section 487.01 – General Warrant Provision. Creates warrants to “use any device or investigative
technique or procedure or do any thing described in the warrant that would, if not authorized,
constitute unreasonable search and seizure”. May be done on the grounds that an offence “will be
committed” (s.487.01(1)(a)).
⁃ Section 487.01(1)(c) – no other statutory provision can authorize the procedure in question. Intention
behind provision is to show that there are no limits on the techniques that can be authorized.
⁃ It is intended to provide warrants to perform investigative techniques that are not covered by other
criminal code provisions.
⁃ This section is aimed at avoiding loss of evidence in cases of video surveillance and other cases.
⁃ Requirements:
o The warrant can only be issued by a judge or justice, not by a justice of the peace (R v S.A.B).
o The judge can attach conditional “to ensure that any search or seizure authorized by the warrant is
reasonable in the circumstances” (s. 487.01(3)).
o The judge must be satisfied that “it is in the best interests of the administration of justice to issue
the warrant” (s. 487.01(1)(b)).

Power of Detention
⁃ Section 10 Charter – gives various rights on arrest or detention, including right to counsel.
⁃ “Detention” can include situations where police have an actual legal power to compel a person to
remain, but also situations of “psychological detention”, no such power exists, but the person
complied with the police demands nonetheless (R v Thomsen).
⁃ Statute – the ability to make breathalyser demands, random routine traffic stops, custom searches
=legislatively created detentions.
⁃ CL – Courts can create new CL police powers using the Waterfield Test.
o Dedman – used CL power to authorize random stops of cars.
o Mann – used CL powers to create police power of investigative detention short of arrest and to
permit a police roadblock.
⁃ Investigative Detention – A person can be briefly detained for questioning “if the detaining officer has
some articulable cause’ for detention” (R v Simpson).
⁃ There is no general power of detention for investigative purposes (Mann).
o Police cannot detain a person b/c they are suspicious in some general way – they must be
suspicious of a particular person b/c of some suspected connection to a particular crime
already know to them.
⁃ Police Roadblocks – The court approved the actions of the police setting up a roadblock (Clayton).
o The Majority applied the Waterfield Test. They basically said that police have power to do anything
that is reasonable.
⁃ R v Grant - The Court created a number of factors to consider when determining whether a person had
been detained for the purpose of sections 9 and 10 of the Charter. The Court also created a new
test for determining whether evidence obtained by a Charter breach should be excluded under
section 24(2) of the Charter, replacing the Collins Test.
 (1) The majority found that "detention" refers to a suspension of an individual's liberty interest by a
significant physical or psychological restraint. Psychological detention is
established either where the individual has a legal obligation to comply with the
restrictive request or demand, or a reasonable person would conclude by reason
of the state conduct that they had no choice but to comply.
 (2) In cases where there is no physical restraint or legal obligation, it may not be clear whether a
person has been detained. To determine whether the reasonable person in the
individual’s circumstances would conclude the state had deprived them of the
liberty of choice, the court may consider, inter alia, the following factors:
 (a) The circumstances giving rise to the encounter as would reasonably be perceived by the
individual: whether the police were providing general assistance;
maintaining general order; making general inquiries regarding a
particular occurrence; or, singling out the individual for focused
investigation.
 (b) The nature of the police conduct, including the language used; the use of physical contact; the
place where the interaction occurred; the presence of others; and the
duration of the encounter.
 (c) The particular characteristics or circumstances of the individual where relevant, including age;
physical stature; minority status; level of sophistication.
⁃ The majority went on to find that Mr. Grant was psychologically detained when he was told to keep his
hands in front of him and when the other officers moved into position to prevent him from walking
forward. Therefore, he was arbitrarily detained, and denied his right to counsel.

Power to “Break the Law

⁃ Section 25.1-25.4 – permit designated police officers to break the law. The sections talk about such an
officer being justified in doing particular things.
⁃ All these provisions do is protect particular officers from criminal liability in particular situations.
⁃ An officer designated by a federal or provincial minister, “is justified in committing an act or omission that
would otherwise constitute an offence” if the following two conditions are met: TEST
o (1) the officer is investigating an offence or criminal activity.
o (2) Permitted to break the law if, in their judgement, that is a reasonable choice.
⁃ This power is intended for officers performing undercover work, or for other officers on an emergency
 basis.
⁃ Section 25.1(11) – limits on the ability of designated officer to break the law:
o (a) intentional or criminal negligence causing death or bodily harm to another person
o (b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice, or
o (c) conduct that would violate the sexual integrity of an individual.

GETTING TO THE TRIAL: CONTROL OVER THE ACCUSED

SECURING JURISDICTION OVER THE ACCUSED AND INTERIM RELEASE
⁃ The police and non-police have specified powers to arrest individuals.
⁃ Arrest (taking physical control over the subject) is to be used as a last resort - when other measures
available for ensuring the good conduct and attendance before the criminal justice process are not
practical or desirable.
o These are the appearance notice, the promise to appear, and the summons.
⁃ Arrested individual - must be released or given a bail hearing (decides whether released absolutely,
subject release conditions, or held custody pending the trial).
Gaining Jurisdiction Over The Accused
⁃ Central Question –Whether the accused is properly before the court.
o Accused w/n territorial limits of the court’s jurisdiction or the accused has otherwise been lawfully
ordered to appear before that court (s. 470).
⁃ Section 485 – excuses most errors relating to the appearance of the accused. Jurisdiction over an
offence is not lost simply b/c a judge fails to comply w any of the Code provisions respecting
adjourments or remains.
⁃ Section 485(1.1) – jurisdiction over an accused is not lost b/c of non-appearance.
⁃ Section 485(2) – The courts have broad authority to issue process, such as a bench warrant for arrest,
that allows jurisdiction over the person to be regained in the event that it is lost.
⁃ Courts have no jurisdiction - persons under the age of 12 (s. 13 – presumed to be incapable of a
crime), persons immune from prosecution b/c of policy (ie. diplomats, Crown).
⁃ Time limits:
o Indictable offences – Generally not barred by a period of limitation or prescription.
o Summary offences – Barred six months following the completion of the offence.
⁃ Section 11(g) Charter – criminal offences do not have retrospective application, cannot charge conduct
that was not an offence when it occurred.
o Exception – R v Finta – SCC said partial exception for war crimes allegedly committed in Europe
during WWII.
⁃ Section 11(b) Charter – guarantees the right to trial within a reasonable time.
o Unreasonable delay – causes charter violation – remedy = stay of proceedings (effect- no
jurisdiction to proceed).
⁃ Unreasonable delay has 2 possible causes:
o (1) May be attributable to one of the parties, or conceivably the court, but if the responsible party is
the accused there will be no remedy under s. 24 of the Charter.
o (2) Institutional delay, that is attributable to the absence of adequate resources for the
administration of justice in a timely manner.
The Arrest
⁃ An arrest consists of words of arrest accompanied either by touching of the person with a view to
detention, or by the person submitting to the arrest (R v Whitefield).
⁃ The word “arrest” need not actually be used, provided the accused can be reasonably supposed to have
understood that she was under arrest (R v Latimer).

⁃ Arrest with a warrant:

o Section 507 – A summons, rather than a warrant, must be issued unless the evidence discloses
reasonable grounds to believe that it is “necessary in the public interest” to issue a
 warrant.
o Section 513 - the peace officer to whom a warrant is directed must be within the territorial
jurisdiction of the person who issued it.
o Section 703 – A warrant issued by any court other than a justice or a provincial court judge can
automatically be executed anywhere in Canada.
o Section 703(2) – A warrant from a justice or provincial court judge can be executed anywhere in
the province in which it is issued.
o Section 511 – Arrest warrants do not expire, but simply remain in force until executed.
o Section 29 - requires an officer executing a warrant to have it where it is feasible to do so, and to
provide it where requested. Anyone who arrests, with or without warrant, to give notice to
the arrested person of “(a) the process or warrant under which he makes the arrest, or (b)
the reason for the arrest”.
⁃ Arrest without a warrant:
o Section 494 – (1) creates arrest powers available to anyone (2) creates special arrest powers
relating to property owners.
 (1) Anyone may arrest a person whom he finds committing an indictable offence. Or anyone may
perform an arrest when she believes, on reasonable grounds. That some person
has committed a criminal offence and is escaping and being freshly pursued by
some other person with authority to arrest.
 (2) Anyone who owns or is in lawful possession of property can arrest, not only for indictable
offences, but also for any criminal offence they find being committed on or in
relation to their property.
o Section 2 – property = real or personal property.
o Section 495 – (1) creates arrest powers available only to peace officers.
 (1)(a) and (b) allow a peace officer to arrest in any situation but
 2 – (i) where the officer did not find the accused committing the offence, the offence is only a
summary conviction one, or no arrest warrant has been issued, or (ii) where the
officer believes that a summary conviction offence is about to be committed.
⁃ Section 495(1)(a) permits a peace officer to arrest anyone who has committed an indictable offence or
who, on reasonable grounds, he believes has committed or is about to commit an indictable
offence.
⁃ Section 495(1)(b) permits a peace officer to arrest anyone he finds committing a criminal offence.
⁃ Section 495(1)(c) permits a peace officer to arrest a person if he reasonably believes that a warrant
exists for the person’s arrest.
⁃ Section 495(2)
o Applies for relatively less serious offences. (a) – (c) applies to indictable offences in the absolute
jurisdiction of a provincial court judge, hybrid offences and to summary conviction
offences.
o (d) officers may arrest b/c she believes on reasonable grounds that an arrest is the only way to (i)
establish the identity of the person, (ii) secure or preserve evidence of or relating to the
offence; or (iii) prevent the continuation or repetition of the offence or the commission of
another offence.
o (e) arrest b/c it is evident to the officer that an appearance notice will not be sufficient.
⁃ Section 495 (3) – an officer under s. 495(1) is deemed to be in the execution of duty “notwithstanding s.
495(2) – ought to use an appearance notice (not required and leaves arrest possibility open).”

⁃ Section 25(1) – Anyone making a lawful arrest, is justified in using as much force as necessary to do so,
provided she is acting on reasonable grounds.
⁃ Section 26 – An officer is criminally responsible for using excessive force.

⁃ Rights on Arrest
o Section 503 –requires that an arrested person be taken in front of a justice of the peace to
consider the issue of release within 24 hours.
o It depends on a case-by-case basis, but release within 24 hours might still be unreasonable delay
(R v W.(E.)).
o Section 10 (a) Charter – an accused is to be informed promptly of the reasons for the arrest or
detention.
o Section 10 (b) Charter – Guarantees the right “to retain and instruct counsel without delay and to
be informed of that right”.
o Charter rights are subject to the reasonable limits clause in section 1 – subject to “such
reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society”.
o Section 10(b) obligations:
 Informational – an accused must be informed of the right to retain and instruct counsel w/o delay.
Normally done through a “standard caution: that is distributed to police officers,
which they read to the accused.
 Special circumstances require police to ensure the accused understands – ie. language difficulties,
mental disability, etc. (Evans).
 Implementational - (i) Where an arrested person has indicted a wish to speak to counsel, the
police must provide that person with a reasonable opportunity to do so; (ii) when
an arrested person has requested counsel the police must hold off from
questioning or otherwise seeking to elicit evidence from that person until she has
had a reasonable opportunity to contact counsel.
 Implementational duties differ from informational ones in 3 separate but related ways:
 (i) they do not arise for every accused – only arise when an accused has actually indicated a wish
to speak to counsel,
 (ii) they can be waived – requires an accused to have full knowledge of the right giving up; arrested
person can expressly/implied decline to contact counsel.
 (iii) they can be lost through a lack of reasonable diligence – if an arrested person is not being
‘reasonably diligent in exercising his rights’ police are not obliged to hold
off their investigation (R v Tremblay).
⁃ Not an implementational duty – a person who has been arrested and has already spoken with counsel
may then be questioned by police. The person is not required to answer questions, but that does
not mean police cannot ask them (R v Singh).

Compelling Appearance Without Arrest

⁃ The Code provides:
o powers to police to require an accused to attend court through some type of written demand, or to
arrest the person: preference is given to not arresting.
o if possible, appearance should be sought without arrest and detention.
o That where a person is released, preference should be given to the means of compelling
appearance that is least onerous, especially as regards the imposition of a money debt as
a form of security.

⁃ Compelling appearance pre-charge – Ways to compel a person to attend court before an information is
laid, and is actually charged:
o Arrest without warrant (s. 495(1)).
o Appearance notice, a promise to appear, or a recognizance.
⁃ Section 495(2) – Prefers less intrusive means. In the case of less serious offences, an officer should not
necessarily use arrest powers.
o Section 495(2) – Less serious offences are (a) indictable offences listed in s. 553 (those in the
absolute jurisdiction of a provincial court judge); (b) hybrid offences; (c) summary
 conviction offences.
o Section 496 – For s. 495(2) offences, an officer should issue an appearance notice, unless there is
good reason to arrest.
⁃ Section 495 (2) (e) & (d) – “Good reason to arrest” is limited to the possibilities that the person will not
show up in court unless arrested or that there is a need to:
o (i) establish the identity of the person,
o (ii) secure or preserve evidence of or relating to the offence, or
o (iii) prevent the continuation or repetition of the offence or the commission of another offence.
⁃ Section 145 –Failure to appear under an appearance notice is an offence and an arrest warrant can be
issued under s. 508.
⁃ Section 497(1) – Even if a person has been arrested, an officer can release that person with the intention
to compel her appearance by means of a summons or an appearance notice.
⁃ Section 497(1.1)(a)(iv) – a peace officer might also decide not to release the accused after arrest in
order to “ensure the safety and security of any victim of or witness to the offence”.
⁃ In the event that a person is arrested without warrant and taking into custody by the arresting peace
officer, he will be brought before the officer in charge or another peace officer.
⁃ Section 498 – Officer in charge can also decide to release the arrested person and is directed to prefer
this course. Offences for release – summary conviction, hybrid, s. 553 offences, or any other
offence punishable by imprisonment for a term for 5 years or less.
o The officer in charge is able to release by issuing an appearance notice, intent to compel by way of
summons, promise to appear, or recognizance.
⁃ Section 507 - Before the first appearance, an information must be laid before a justice. If the justice is
not satisfied that there are reasonable grounds to believe an offence has been committed, he will
cancel any form or process that has been previously issued by a peace officer, and will direct
notice be given to the person who had been issued such process. If the justice endorses the
information, he either confirms the form of process already issued or cancels it and issues a
summons or warrant for arrest.
⁃ Section 505 – following an accused’s arrest and release, a charge is to be laid “as soon as practicable
thereafter and in any event before the time stated”, for appearing in court in whatever
documentation has been issued to the accused with her release.

⁃ Compelling Appearance Post-Charge - Review by the justice occurs before police interaction with the
accused.
⁃ The justice will issue process in the form of either summons or an arrest warrant.
o Summons – is a document issued by the court commanding the accused named therein to attend
court at a specified time and place. It is in Form 6, and specified the date to appear in
court, a date to appear for fingerprinting and the consequences of non appearance (s.
509(1),(4)&(5)). It is to be served in person, or left with an adult at the person’s last known
address (s. 509(2)).
o Arrest warrant – same details as summons but adds a command to peace officers within local
jurisdiction to arrest the person charged and to bring her to court.
⁃ The judge has discretion to choose summons or arrest warrant.
⁃ Section 507(4) – directs a justice to issue a summons unless there are reasonable grounds to believe
that a warrant is necessary in the public interest.
⁃ Section 507(1)(b) – a judge will decide to issue a warrant in order to “compel the accused to attend
before him or some other justice for the same territorial division”.
⁃ Section 507(6) – The Code allows the justice who issues an arrest warrant to endorse it for the specific
purpose of authorizing the officer in charge of a station or lock-up to release an accused, pending
her appearance in court.
⁃ Section 499 – the officer in charge is then authorized to release the accused.
⁃ Section 503 – if a person is arrested and the police decide not to release under any of the various
 powers to do so, the person must be brought before a justice without reasonable delay, and in any
case within 24 hours.

The Bail Hearing

⁃ The Code creates what is usually referred to as a “ladder” approach to bail. The accused is presumed to
be entitled to release and the Crown must justify each increasing step of intrusiveness.
⁃ Bail hearing:
⁃ Section 515 – the justice shall order that the accused is released on an undertaking without conditions,
unless the Crown shows cause as to why something more restrictive is justified.
⁃ Section 515 (1) - There are only 3 grounds on which continued detention of an accused may be ordered.
The first two are relatively uncontroversial:
o (a) the detention is necessary to ensure the accused’s attendance in court; or
o (b) the detention is necessary for the protection or safety of the public
o (c) on any other just cause being shown and, without limiting the generality of the foregoing, where
detention is necessary in order to maintain confidence in the administration of justice,
having regard to all the circumstances, including the apparent strength of the
prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding
its commission and the potential for a length term of imprisonment.
⁃ Section 515 (2) – Sets out the range of restrictions on liberty, short of detention, that can be imposed on
an accused as conditions of release. They are:
o (a) an undertaking with conditions
o (b) a recognizance without sureties and without deposit – that is, the accused promises to pay a
sum of money if she does not appear as required;
o (c) a recognizance with sureties – that is, a 3rd party also agrees to owe the debt if the accused
does not appear
o (d) a recognizance without sureties but with a deposit for money “or other valuable security” – this
condition can only be imposed with the consent of the prosecutor, and;
o (e) a recognizance with or without sureties and with a deposit of money or other valuable security if
the accused is not ordinarily resident in the province within 200 km’s of the place in which
he is in custody.
⁃ Section 515(3) - A justice cannot make an order under any of paragraphs (b) to (e) unless the prosecutor
shows cause as to why an order under the immediately preceding paragraph would be inadequate.
(LADDER APPROACH)
⁃ Section 515(4) – (4.3) – provide the various types of conditions that may, or may not, be imposed when
an order for release is made under s. 515(2).
R v Hall – The Court held that the portion of section 515(10)(c) permitting detention "on any other just
cause being shown”" was unconstitutional as it gave too much discretion to the judge to deny bail
without just cause. The Court however upheld the portion of section 515(10)(c), which allows the denial
of bail "to maintain confidence in the administration of justice" as it was a valid and just reason to deny
bail. The standard is based on the view that the reasonable member of the community would be
satisified that the denial of bail would be necessary to maintain confidence in the system. (Ie. The test
of vagueness) Holding:
a. “Just Cause” will exist if the denial of bail can occur in a narrow set of circumstances and if the
denial is necessary to promote the proper functioning of the bail system.
b. The need to maintain confidence in the administration of criminal justice is a value which falls
within the ambit of “just cause” in S. 11E. Decisions on bail have the real capacity to
affect the confidence in the AOJ and in the bail system itself.
Exceptions:
⁃ Section 515(6) – The onus is reversed for a number of offences. The justice is directed to order that the
accused shall be detained unless the accused shows cause not to do so.
o Accused not an ordinary resident in Canada.
o Offence was alleged to be committed while the accused was already out on bail
o Offence was a criminal organisation, terrorism, or national security offence
o Offence related to failing to attend court as ordered by some previous process
o The offence was punishable by life imprisonment under the CDSA.
⁃ Section 515(11) – For section 469 offences, ie murder, a justice has no authority to release the accused
and must order her detained to be “dealt with according to law”. The accused in accordance with s.
522, will be taken before a judge of the superior court. There is a reverse onus in this hearing, with
the accused in being requires to justify release (s. 522(2)). If the accused is ordered to be released,
any of the ordinary conditions of release can be imposed.
⁃ Section 520 & 521 – A decision made by a justice concerning release or detention may be reviewed by a
judge upon application of the accused or the prosecutor.
⁃ Section 525 – Where interim release has been denied an accused person in custody is entitled to an
automatic review if the trial has not commenced with a specific time frame.
⁃ Section 523 – A preliminary inquiry judge or trial judge can vacate any previous order (whether for
detention or release) and substitute a different order where cause to do so is shown.
⁃ Section 518 – Sets out the principles of evidence at bail hearings, which allows the justice to “receive
and base his decision on evidence considered credible or trustworthy by him in the circumstances
of each case”. However, a bail hearing cannot be used to interrogate or examine the accused
about the offence itself.
⁃ Section 524 - An accused who has or is about tho violate some condition of release can be arrested with
or without warrant.

GETTING READY FOR TRIAL

DISCLOSURE
⁃ A right of the accused and obligation on the Crown = full disclosure of investigation (information gathered
by police during investigation). Except what is clearly irrelevant or privileged.
⁃ section 536 Disclosure occurs before the accused elects mode of trial for indictable offences.
⁃ Accused may seek relevant “third party records” – applications brought depend on whether charge is
sexual offence or some other offence.
⁃ Issues of proper disclosure - assigned trial judge resolves them.
R v Stinchcombe – The SCC changed the state of affairs of disclosure. They concluded that an accused
person has a right, under s. 7 Charter, to disclosure of the Crown’s case. They stated that “the Crown must
disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to Crown’s
privilege or irrelevant information. Relevant information must be disclosed, regardless if Crown intends on
introducing it into evidence, before election or plea. Statements of persons who provide information must be
disclosed.
1) Creation of Right – The Crown has a duty to disclose evidence to the accused. Must disclose all
material it proposes to use at trial and especially all evidence which may assist the accused even if
the Crown does not propose to adduce it”. (R v Stinchcombe).
2) Structure of Right – The material to be disclosed includes all witness statements, whether the Crown
intends to call the witness or not, and notes or “will say” statements where no actual statements
exist (R v Stinchcombe). The obligation to disclose is a continuing one, the Crown must disclose
any additional information it receives.
o Defence has a continuing obligation to seek disclosure. It is not entitled to assume that it has
received all relevant information (Dixon).
1) Remedy for Breach – The Crown’s discretion with regards to disclosure can be reviewed by the trial
judge if defence counsel disagrees with the way in which it has been exercised (R v
Stinchcombe).
o Non-disclosure – may result in remedy of new trial, stay of proceedings.
o Carosella – accused charged with gross indecency. Complainant visited rape crisis centre.
Accused applied for production of notes. They has been destroyed. Accused has a
 Charter right to disclosure; non-disclosure = breach. A stay should only be granted if (i)
prejudice to the accused cannot be remedies; or (ii) where there would be irreparable
prejudice to the integrity of the justice system if the prosecution continued. Held – both
tests met, stay issued.
o La – police officer taped recorded interview with complainant in sexual assault case, prior to
charges laid. Complainant = 13. Tape lost. Held – Accused s. 7 right not violated. Court
found, despite police best efforts, evidence will sometimes be lost. Where the Crown can
show that evidence was not lost due to unacceptable negligence, the duty to disclose is
not beached. It will be possible for the accused’s right to full answer and defence to be
breached – only when accused can establish actual prejudice.
o Dixon – failure to disclose did not become apparent until after the trial. Held – the right to
disclosure is but one component of the right to make full answer and defence. Although
the right to disclosure may be violated, the right to make full answer and defence may not
be impaired as a result of the violation.
o Taillefer – The court changed the approach in Carosella to a three-part test –
 (1) Was the accused’s right to disclosure breached?
 (2) If so, did that breach violate the accused’s right to make full answer and defence?
 (3) If so, what remedy should be granted?
Privileged Information
⁃ Michaud v Quebec – Obligation to disclose is not absolute. The Crown may justify non-disclosure in
circumstances where ‘the public interest in non-disclosure outweighs the accused’s interest in
disclosure’.

(1) Informer Privilege

⁃ CL Rule - The identity of police informers is entitled to the highest level of protection – to protect
individuals and investigative method (Bisaillon v Keable).
o Innocence at stake exception – If evidence establishes a basis for this exception, identifying
information will be revealed. Ie. the informer is a material witness to the crime, acted as an
agent provocateur, or planted the material found under a search warrant (R v Leipert).
o Only if the accused can establish some basis to conclude that without disclosure the accused’s
innocence is at stake, should the trial judge consider disclosure.
⁃ The Crown has the choice of staying proceedings rather than making disclosure (R v Solosky).
(1) Solicitor-Client Privilege
⁃ CL Rule – It is a principle of fundamental justice (R v McClure).
⁃ Accused may infringe another’s solicitor client privilege in order to make full answer and defence.
⁃ McClure – Just with informer privilege, the obligation to disclose arises only when the accused’s
innocence is at stake. Innocence at stake Test:
o The accused must establish the threshold:
 The information he seeks from the solicitor-client communication is not available from any other
source; and
 He is otherwise unable to raise a reasonable doubt.
⁃ If this has been satisfied, the judge should proceed to the Innocence at stake Test:
o (1) The accused seeking production of the solicitor-client communication has to demonstrate an
evidentiary basis to conclude that a communication exists that could raise reasonable
doubt as to his guilt.
o (2) If such an evidentiary basis exists, the trial judge should examine the communication to
determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the
accused.

(1) Counselling Records – Such as psychiatric, medical, or other counselling records regarding a
complainant.
⁃ Issue usually with production (the handing over of documents in a 3rd parties hands) not disclosure
(handing over documents in the hands of the Crown).
⁃ O’Connor – Accused charged with sexual assault. Disclosure of complainant’s medical, counselling and
school records. SCC set out procedure to be applied for disclosure of 3rd party documents:
o (1) The accused must persuade the judge to examine the records personally.
 Consider: accused’s right to make full answer and defence, weigh 3rd parties privacy interests,
 Accused must satisfy the trial judge “that there is a reasonable possibility that he information is
logically probative to an issue at trial or the competence of a witness to testify”.
o (2) Having looked at the records, the judge is required to decide whether to release it or some
portions of it to the accused.
 Factors – (i) the extent to which the record is necessary for the accused to make full answer and
defence; (ii) the probative value of the record in question; (iii) the nature and
extent of the reasonable expectation of privacy vested in that record; (iv) whether
production of that record would be premised upon any discriminatory belief or
bias, and (v) the potential prejudice to the complainant’s dignity, privacy or
security of the person would be occasioned by production of the record in
question.
STATUTORY RULE
⁃ In response Parliament enacted ss. 278.1 to 278.91 – rules for production of records in the hands of
3rd parties practically replaced O’Connor standards.
o Applies prima facie to all 3rd party records, including records already in the hands of the Crown.
⁃ Section 278.5(2) – the judge must balance the salutary and deleterious effects of producing the record
for the judge’s own inspection.
⁃ Section 278.5(1)(c) – Accused to show that the records likely relevant, and the production is necessary
in the interest of justice. Decision based on 5 factors in O’Connor.
⁃ Section 278.1 – Only records of the type listed in which there is also a reasonable expectation of privacy
will be governed by the scheme.

PRELIMINARY INQUIRIES
⁃ At the preliminary inquiry, the judge must determine whether the Crown has presented a prima facie
case.
⁃ If so, accused is committed to stand trial and the prosecutor will be called upon to draft an indictment ,
which will replace the original information as the new charging document.
⁃ If the Crown does not establish a prima facie case, the accused is discharged and the prosecution on the
charge that has been laid ends.
⁃ A discharge at the preliminary inquiry is not an acquittal.
⁃ The prosecution can relay the charge and try again, but will not do so unless important new evidence is
uncovered.
⁃ Section 577 - The Attorney General also has the authority to lay direct indictment, which gives
jurisdiction to a court to try the accused. The direct indictment can be used to re-institute a
prosecution after a preliminary inquiry discharge, or to bypass a preliminary inquiry altogether by
indicating the accused directly to trial.

⁃ Before an accused is tried on an indictable offence, a preliminary inquiry may be conducted by a justice,
at the request of the prosecution or the accused, unless the offence is within the absolute
jurisdiction of the provincial court judge.
⁃ This can be overridden if the AG elects to proceed by way of direct indictment, (s. 577), which effectively
puts the indictment immediately before the court of trial.
⁃ The function of the preliminary inquiry is to afford the parties an opportunity upon request to test the
evidence of specific witnesses on specific issues in preparation for trial.
Jurisdiction
⁃ There is no inherent jurisdiction. The only powers that may be exercised by the judge are those that are
explicitly granted in the Code or that are necessarily implicit in those provisions.
⁃ Section 537(1)(i) – provides that a judge at the preliminary inquiry may regulate the course of the inquiry
in any way that appears to be desirable and not inconsistent with any other provision of the Code.
⁃ A judge at a preliminary inquiry has no power to grant any remedy other than those contemplated by the
Code.
⁃ The SCC has held that the judge cannot grant a remedy under the Charter, including remedies for delay,
non-disclosure, or the production of evidence obtained in violation of a constitutional right.

(1) Commencement
⁃ Section 536 – an accused who is charged with an indictable offence within the absolute jurisdiction of a
provincial court judge shall be remanded to appear before such a judge for trial within the territorial
jurisdiction in which the offence was allegedly committed.
⁃ The possibility of having a preliminary inquiry in respect of an indictable offence will depend on (i) the
classification of the offence; and (ii) the election of the accused as to a mode of trial.

(1) Scope
⁃ Section 535 – directs the justice of the judge to inquire into the charge of any indictable offence or any
other indictable offence in respect of the same transaction disclosed by the evidence taken in
accordance with Part XVIII.
⁃ The scope of the preliminary inquiry is not limited to the offences as charged in the information.
o It can extend to any indictable offence disclosed by the evidence, provided it arises from the same
transaction (narrative of conduct that may comprise several acts and may disclose several
offences).
⁃ Section 541 – Expressly allows the accused to call evidence and this can include exculpatory evidence
on a matter of defence.
⁃ The preliminary inquiry has also been used as an opportunity to lay an evidentiary foundation for an issue
that can only be decided at trial.
⁃ Section 601 – judge given broad powers to amend the charges in the information at preliminary inquiry.
⁃ Challenges to quash the information at the preliminary inquiry will succeed only in cases where there is a
radical jurisdictional defect that lies beyond the power of amendment in s.601.

(1) Multiple Accused and Multiple Counts

⁃ If multiple accused are charged in a single information, each is entitled to make a request for a
preliminary inquiry, as is the prosecution.
⁃ Section 567 – Empowers a judge not to record the election of an accused if it would necessarily lead to
severance of the accused.
⁃ The judge at the preliminary inquiry cannot inquire into summary-conviction offences and indictable
offences with the absolute jurisdiction of the provincial court.
⁃ If the accused elects trial in provincial court, she waives the preliminary inquiry and thus no issues arises
b/c the provincial court judge has jurisdiction over all of the offences charged.
⁃ If she elects trial by judge alone, or judge and jury, the preliminary inquiry will proceed on the electable
offences and the others would have to be separately charged in another information.

(1) Presence of the Accused

⁃ The accused is entitled to be present that the preliminary inquiry.
⁃ Section 537(1)(j.1) – judge has discretion to excuse the accused from all or part of the inquiry.
⁃ Section 537 (1)(j) and (k) – accused may appear by an electronic connection.
⁃ Section 544 – if the accused absconds during the preliminary inquiry, the accused is deemed to have
waived the right to be present. The justice may continue the inquiry to its conclusion or if an arrest
 warrant has been issued, adjourn it.
⁃ Counsel for the accused is entitled to act for the absconding accused, and may still call witnesses.
⁃ If the accused has absconded, the justice is entitled to draw adverse inferences.

(1) Constitutional Issues

⁃ Mills - The SCC decided that a court conducting a preliminary inquiry is not a “court of competent
jurisdiction” under the charter.
⁃ Thus, if an accused seeks to apply for a constitutional remedy under section 24 or 52, they only forum for
such a motion is the court of trial.
Evidence
(1) Admissibility
⁃ Section 540 – Evidence at the preliminary inquiry is taken under oath and recorded.
⁃ Prosecution witnesses are heard first and may be x-examined by the accused or counsel.
⁃ Evidence tendered at the preliminary inquiry must comply with the principles and rules of admissibility
that apply at trial.
⁃ Section 540(7) – A justice acting under this Part may receive as evidence any information that would not
otherwise be admissible but that the justice considers credible or trustworthy in the circumstances
of the case, including a statement that is made by a witness in writing or otherwise recorded.

(1) Cross-examination of Prosecution Witnesses

⁃ The accused is permitted to x-examine a prosecution witness on any matter that could lead to the
conclusion that the prosecution evidence is insufficient and in a manner that might be useful in a
subsequent trial.
⁃ Section 537(1.1) - The justice has the express power to immediately stop any part of it that is “in the
opinion of the justice, abusive, too repetitive or otherwise inappropriate.
⁃ A judge has no jurisdiction at the preliminary inquiry to order the prosecution to call a witness and cannot
himself call a witness.

(1) Address to Accused

⁃ Section 541(2) - At the close of the prosecution evidence, the Code requires the justice to address an
accused who is not represented by counsel.  Allowing them to say something addressing
charges, but what they say can be held against them at trial.

(1) Defence Evidence

⁃ Section 541 – The defence is entitled to adduce evidence on behalf of the accused, including testimony
by the accused, but is not obliged to call witnesses.
⁃ The preliminary inquiry provides an opportunity for the defence to acquire further discovery of the
case as a whole.
⁃ Section 715 – If evidence was taken on oath at the preliminary inquiry in the presence of the accused,
and the witness either refuses to testify or is dead, insane, too ill to travel, or absent from Canada,
then the evidence can be introduced at trial.
⁃ R v Hawkins – a witness testified at the preliminary inquiry, but then married the accused, thus
incompetent to testify at trial. She was not refusing to testify; thus s. 715 did not apply allowing her
evidence to be led at trial.

(1) Publication Bans

⁃ Section 537(1)(h) and 486 – judge has discretion to exclude the public from court.
⁃ Section 539 – a publication ban is imposed by order of the justice before any evidence is taken – it is
discretionary if sought by the prosecution and mandatory if sought by the accused.
⁃ Section 539(2) – if the accused is not represented by counsel, the Code obliges the judge to inform him
of the right to seek a publication ban.
Committal
⁃ Section 548 - directs the justice or judge at the preliminary inquiry to commit the accused for trial on any
indictable offence if the evidence in support of that charge is sufficient. If also requires that the
accused be discharged in respect of any charge on which the evidence is not sufficient.
⁃ Shephard – The SCC stated that the test of sufficiency at the preliminary inquiry, as for a directed verdict
and for committal in extradition matters, is whether a reasonable jury, properly instructed, could find
the charge proved beyond reasonable doubt.
o Test if sufficiency at preliminary inquiry is concerned with the completeness of the prosecution
evidence on the elements of the offence. Direct evidence on all elements = accused
committed.
⁃ The judge should discharge the accused if no reasonable trier of fact could find the accused guilty on the
evidence adduced by the prosecution.
⁃ If the accused is discharged at the preliminary inquiry, there is no acquittal and thus the accused cannot
claim protection against double jeopardy if the prosecution should subsequently proceed against
him on the same charge or related charges, either by means of fresh information or direct
indictment.
Review
⁃ - Decision to commit or discharge at a preliminary inquiry can only be reviewed on the basis of an action
for certiorari.
⁃ It is open to the Crown to seek certiorari in the case of discharge.
⁃ Section 577 – The Crown has a simpler option of preferring a direct indictment despite the discharge, so
more frequently certiorari applications involve an accused seeking review of a decision to commit.
⁃ Certiorari is only granted if the judge has fallen into jurisdictional error.
o Erroneously excluding evidence, unlikely a jurisdictional error – unless rises to level of denial of
natural justice (Dubois).
⁃ If trial judge fails to comply with a mandatory provision of the Code it is a jurisdictional error.
⁃ Section 548 – requires a judge to commit the accused for trial if “there is sufficient evidence”. It also
requires a preliminary inquiry judge to discharge the accused if “on the whole of the evidence no
sufficient case is made out”.
⁃ Sazant – the accused had been discharged at the preliminary inquiry on a charge of sexual assault.
Preliminary inquiry judge said that there was absolutely no evidence of non-consent. Complainant
had testified he did not want to partake in the sexual activity. Held - The judge had made a
jurisdictional error.
R v Arcuri - Supreme Court of Canada reviewed the test for committal for trial on a preliminary
inquiry and discussed the questions to be asked by a preliminary inquiry judge. The Court ruled
that although the test for preliminary inquiry is the same whether the evidence is direct or
circumstantial, the nature of the judge’s task varies according to the type of evidence advanced by
the Crown.
The judge must therefore weigh the evidence, in the sense of assessing whether it is
reasonably capable of supporting the inferences that the Crown asks the jury to draw. This
weighing, however, is limited. The judge does not ask whether she herself would conclude
that the accused is guilty. Nor does the judge draw factual inferences or assess credibility.
The judge asks only whether the evidence, if believed, could reasonably support an
inference of guilt.

THE JURY TRIAL

⁃ If a jury trial is to be held, a trial judge is assigned, and a jury is selected.
Selecting Mode of Trial
⁃ Section 504 – anyone can lay an information alleging the commission of an offence in front of a justice of
the peace.
⁃ Section 788 - this is the document under which a summary conviction trial will take place.
⁃ Section 507 – the justice of the peace decides whether to issue a summons or a warrant, where “a case
for doing so is made out” to require the accused to attend court.
⁃ Section 505 – If person arrested without a warrant, an obligation exists to present whatever process was
issued to a justice of the peace.
⁃ Section 508 – imposes an obligation on the justice to perform a screening process similar to that in s.
507.
⁃ If the accused was arrested, he or she will (under s. 503) be taken in front of a justice of the peace who
will decide whether to hold or release the accused.
⁃ Section 515 – the bail hearing will be conducted in accordance with these procedures.
⁃ “arraignment” – the accused’s initial appearance in court to answer the charge.
⁃ If the offence is hybrid, the Crown should elect whether to proceed by indictment or summary conviction
at this stage.
⁃ If the matter is summary conviction, automatically or by election, the accused enters a plea and will be
tried on the information in Form 2.
⁃ Section 471 - If the matter is indictable, trial must be by judge and jury unless some other part of the
code specifies otherwise.
⁃ Section 469 – gives a superior court of criminal jurisdiction the ability to try an offence.
⁃ Section 468 – gives a court of criminal jurisdiction the ability to try any offence other than those listed in
s. 469.
⁃ Section 558 – an accused can elect not to have a jury, except for the offences listed in s.469.
⁃ Section 473 – an accused can elect not to have a jury even for the offences listed in s. 469 with the
consent of the AG.
⁃ Section 536(2) – the accused is asked to elect a mode of trial.
⁃ Section 553 – if the offence is listed as in the absolute jurisdiction of a magistrate, then the accused does
not elect and is tried in a provincial court.
⁃ Section 565(1)(c) – if the accused refuses to elect, the trial will be by judge and jury.
⁃ Section 598 – if the accused elects trial by judge and jury, but then fails to appear, then the later trial will
not be in front of a judge and jury unless the accused shows a legitimate excuse.
⁃ Section 579 – the Crown may stay proceedings with the ability to recommence within 1 year.
Jury Selection
⁃ Section 471 – every indictable offence shall be tried by a judge and jury “except where otherwise
expressly provided by law”.
⁃ Section 92(14) Constitution Act – provinces given jurisdiction over the administration of justice in the
province.
⁃ Section 626 – jurors must be qualified in accordance with the laws in the province. No person can be
disqualified from jury service based on sex.
⁃ Generally, a juror is required to be the age of majority in the province, a resident of the province and a
Canadian citizen.
⁃ Disqualification based on 2 justifications – (i) the potential juror would face a conflict in serving on a jury,
or (ii) what the juror does in everyday life is more important than, or for some other reason justifies
a general exemption from, serving on jury duty.
⁃ Selecting Jurors:
o Section 629 – the accused or the prosecutor can challenge the jury array, but it is only based on
“partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the
panel was returned”.
o Criminal trial must commence with 12 jurors.
o Section 644 (1) – allows a judge to discharge a juror based on illness or other reasonable charge,
and a juror previously selected might seek to be excused under this section.
o Section 644(1.1) – provided the jury has not begun to hear evidence, a jury can choose a
replacement juror.
o Section 644 (2) – directs that the jury remains properly constituted, unless the judge orders
 otherwise, provided the number of jurors is not reduced below 10.
⁃ Exemptions
o Section 632 – allows a trial judge to excuse jurors based on any of the three grounds –
(1)personal interest in the matter to be tried; (2)relationship with judge, prosecutor,
accused, counsel for the accused, or a prospective witness; and (3)personal hardship or
other reasonable cause.
o Section 633 – the judge can stand jurors aside. They are only recalled for possible selection if the
array is exhausted without a complete jury.
⁃ Challenges for Cause
o Section 638 – grounds which a juror may be challenged for cause. Both Crown and accused are
entitled to an unlimited number of challenges for cause.
 Some grounds are factual – ie. jurors is an alien.
 Some grounds are based on physical incapacity to perform juror duties – i.e language barrier.
o Section 638 (1) (f) – can challenge on basis that “a juror is not indifferent between the Queen and
the accused”.
 (1) Counsel has to satisfy the trial judge that the challenge for cause should be permitted –
counsel must tell the trial judge the basis for the challenge.
 (2) The challenge itself. Counsel is permitted to ask questions of the jurors to determine whether
the juror will in fact be able to act impartially.
o An unsuccessful challenge for cause does not prevent a peremptory challenge from being used
(Cloutier).
⁃ Peremptory Challenges
o Section 634 – Peremptory challenges allow the accused or the Crown to dismiss a potential juror
w/o explanation.
o Each party has 20 peremptory challenges in cases of high treason or 1st degree murder, 12 for
other offences carrying 5 years or more, and 4 in all other cases.
o If a trial on more than 1 charge, the number of peremptory challenges is for the most serious
offence charged.
o Section 634 - More than 1 accused, each accused receives the proscribed number, Crown
receives that same number as all the accused combined.
o Accused’s use of the challenges = unconstrained.
o Crown must exercise challenges in conformity with Charter principles and values.

PRE-TRIAL MOTIONS
⁃ In either judge alone or jury trials, there will often be preliminary legal issues to be resolved before the
trial gets going  ordinarily dealt with by the assigned trial judge.
⁃ In a jury trial, it is often convenient to assign the judge and to dispose of these matters before a jury is
selected, or if the motions can be resolved expeditiously, select the jury and require it to leave the
courtroom until the motions are completed.

(1) Timing and Means

⁃ Section 645(5) – trial judge, in a jury trial, before the jury has been selected, is authorized to deal with
any matter that would be dealt with in the absence of the jury.
⁃ Some pre-trial motions are specifically permitted in the Code – Ie. application for change of venue (s.
599), for particulars (s. 587), for exclusion of the public from trial or a publication ban (s. 486), or to
server counts (s. 591(3)).
⁃ Section 625.1 – Parties and the court can see whether an agreement can be reached that will expedite
the trial. Ie. if the voluntariness of statements will be admitted.

(1) Particular Pre-Trial Motions

⁃ Charge of Venue:
o At CL, trials are to be held in the area in which the offence occurred.
o Section 599 – it is possible to apply to change the venue in which the trail will be held. Either the
defence or the Crown can apply for a change of venue on the grounds that “(a) it appears
expedient to the ends of justice; or (b) a competent authority has directed that a jury is not
to be summoned at the time appointed in a territorial division where the trial would
otherwise by law be held”.
o Change venue id pre-trial publicity has made it too difficult for the accused to obtain a fair trial .
Prejudice must not be capable of being cured by safeguards in jury selection, instructions
from the trial judge to jury, or by the rules of evidence.

⁃ Fitness to Stand Trial:

o Pre-trial motion to determine if the accuse is fit to stand trial – ie. suffers from mental disorder.
o Part XX.1 – fitness provisions focus on the accused’s mental state at the time of trial, and whether
it is fair to proceed.
o Section 672.22 – Everyone is presumed to be fit to stand trial.
o Requirements:
 (1) Section 2 – “Unfit to stand trial” – requires that accused suffered from a mental disorder.
 (2) Accused is unable to account – to conduct a defence at any stage of the proceedings before
a verdict is rendered or to instruct counsel, and, in particular, unable on account
of mental disorder to (a) understand the nature of the proceedings, (b)
understand the possible consequences of the proceedings, (c) communicate with
counsel.
o A party arguing that the accused is unfit has the burden of proof on a balance of probabilities
(section 672.23(2) and 672.22).
o If the above requirements are met, reasonable grounds are made out that the accused is unfit to
stand trial. Once this is made out, then the actual question of fitness is decided.

⁃ Charter Motions
o Section 11(b) – guarantees any person charged with an offence has the right “to be tried within a
reasonable time”.
o Morin – TEST for s. 11(b) claim. Some delay is inevitable. The question is, at what point does the
delay become unreasonable? 4 considerations must be weighed:
 (1) the length of the delay
 (2) waiver of time periods
 (3) the reasons for the delay, including
 inherent time requirements of the case,
 actions of the accused
 actions of the Crown
 limits on institutional resources, and
 other reasons for delay
 (4) prejudice to the accused
o Askov – 6 – 8 months from committal to trial.
o Morin – affirmed above. Added delay in provincial courts should be 8 – 10 months.
o Accused can strengthen s. 11(b) claim by showing infringements of a liberty or fair trial interests as
well.
o Absent of proof of serious prejudice, s. 11(b) claims have become less likely to be granted.

o Abuse of Process
o Requires that the proceedings are oppressive or vexatious and that they violate the fundamental
principles of justice under the community’s sense of fair play and decency (R v
Keyowski).
o At CL, the issue was society’s interest in a fair process, and whether proceedings had become so
unfair that they were contrary to the interests of justice (R v Power).
o CL and s. 7 have been merged, b/c abuse of process claims can be decided based on whether
they violate the accused right to a fair trial (R v O’Connor).

o Stay of Proceedings
o O’Connor - If the abuse of process has caused prejudice to the accused or threatened integrity of
the justice system, for a STAY to be appropriate, TEST:
 (1) the prejudice caused by the abuse in question will be manifested perpetuated or aggravated
through the conduct of the trial, or by its outcome; and
 (2) no other remedy is reasonably capable of removing that prejudice.
o A stay is intended to prevent the perpetuation of a wrong that will otherwise continue to affect the
parties and the community (Regan).
o If any doubt exists about whether a stay should be granted, the Court has created a third
criterion – “A balancing between the interests of the accused served by granting a stay,
and the interest of society in having a final decision on the merits (Regan)”. THIRD
CRITERIA FOR STAY TEST ABOVE
THE TRIAL VERDICT
JURY TRIALS
⁃ Where there has been a jury trial, the judge will “charge” the jury on the relevant law, and the jury will
retire to deliberate, returning with a general verdict (ie. a verdict delivered without reasons). If there
is a conviction, the judge will conduct a sentencing hearing and impose a sentence.
Jury Sequestration
⁃ Section 647 & 748 – Following the jury charge and re-charge, a trial judge can allow the jury to separate
rather than commence deliberations immediately, and in this even a publication ban is imposed.
⁃ Once the jury begins its deliberations it is sequestered (isolated in a way to keep from it any potential
sources of information).
⁃ The verdict – conviction or acquittal – must be unanimous.
⁃ While sequestered- the jury may send non-administrative inquiries to the judge. The judge is to “(a) read
the communication in open court in the presence of all parties; (b) give counsel an opportunity to
make submissions in open court prior to dealing with the question; (c) answer the question for the
jury in open court in the presence of all parties” (R v Fontaine).
o Ie. request copy of the Code, transcripts of wiretaps, judge’s instructions, re-hear evidence,
clarification of the legal issues.
⁃ A trial judge has discretion and is not obliged to answer every request from the jury precisely as asked.
⁃ A trial judge should consult on how to respond, and propose alternatives or ask the jury to deliberate
further to decide more specifically what their concern is; not simply refuse – s. D(8)(b) (R v
Ostrowski).
⁃ Basic rule – no additional information/evidence that did not come out at trial can be given to the jury
once they have begun deliberating, and it might be necessary to tell the jury that there was no
evidence led on the point in question (R v Templeman).
Exhorting the Jury
⁃ Section 653 - if the jury is unable to reach unanimity, then a trial judge may discharge the jury and order
a new trial.
⁃ If the jury is in a deadlock, the first step is to call them in and exhort them to reach a verdict.
⁃ The exhortation is to focus on the process of deliberation itself, and encourage the jury members to listen
to and consider one another’s views (Sims).
⁃ Provided no improper pressure, irrelevant considerations are imposed and the right to disagree is clear,
the trial judge can urge the jury to find agreement (R v Littlejohn).
⁃ Improper exhortation may lead to a new trial.
Rendering a Verdict
⁃ Once jury deliberations are finished, the jury foreman announces its verdict in court.
⁃ Juries may be polled (every juror asked individually about the verdict) – usually done when there is doubt
that unanimity exists (R v Laforet).
⁃ Once jury has been discharged by the trial judge, neither judge nor jury has authority to act.
⁃ R v Head – foreman announced verdict, not guilty. Jury discharged. Accused acquitted. Foreman
indicated later that the jury could have found the accused guilty of an included offence (never said).
Held – Trial judge was functus officio, no longer had jurisdiction to inquire into matter or correct
error. Acquittal stood.
⁃ R v Burke – Jury’s verdict guilty, court thought foreman said ‘not guilty’. Held – If jury required to
reconsider verdict, functus officio rule applies. TEST: If no reconsideration, trial judge to decide if
reasonable apprehension of bias. If no, judge can correct error. If yes, judge must allow verdict
recorded to stand or declare mistrial (to prevent miscarriage of justice). Thus, judge residual
jurisdiction when there has been an irregularity. Mistrial declared, new trial ordered.
Jury Secrecy
⁃ Section 649 – It is an offence for anyone present in the jury room to disclose any information about the
jury’s deliberations, other than in connection with an investigation of obstruction of justice under s.
139(2).
o At CL, also prevent anyone who overhears, even accidentally, the jury’s deliberations from
disclosing the information.
⁃ R v Pan – Extrinsic matter = some 3rd party has contact with jury or gave information to a juror. Intrinsic
matter = the effect the contact or information had on jury deliberations. CL rule and s. 649, jury
secrecy rule, only prevent intrinsic matters from being disclosed.
⁃ Mercier – could leave evidence that the Crown prosecutor has erased words from the blackboard in the
jury room (extrinsic matter). Evidence concerning effect this had on jury’s reasoning, intrinsic, not
admissible.

JUDICIAL VERDICTS
⁃ Where there has been a judge alone trial, the judge will render the verdict. The judge is obliged to give
reasons for decision. If the accused is convicted, the judge will conduct a sentencing hearing.
⁃ Sheppard – there is no general duty for a trial judge to give reasons, however, in many circumstances
the failure to do so, or do so adequately, will be an error of law giving rise to a ground of appeal.
Held – Trial judge delivered “boiler plate” reasons that indicated, in a single sentence that he had
considered the testimony and burden the Crown. These reasons were insufficient for the accused,
or an appeal court, to know the basis for the conviction. Thus conviction overturned.
⁃ Error of law based on insufficient reasons – (1) the appeal court must ask whether the reasons are
inadequate; (2) it must be determined whether that inadequacy prevents appellate review.
⁃ If both stages of the test are met then a new trial should be ordered (Gagnon).
⁃ Duty to give reasons applies to acquittals. Acquittal = reasonable doubt (vs. conviction = BARD). RD can
arise b/c an inadequate foundation for guilt has been laid. Thus, takes less reasons to be adequate
in the case of acquittal (R v Walker).

DOUBLE JEOPARDY AND ISSUE ESTOPPEL

⁃ Where a verdict has been rendered, the accused cannot be tried again for the same offence or for an
offence based on the same factual allegations he has been acquitted or convicted of.
⁃ Under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from
re-litigating factual issues that have already been decided against the Crown.
Section 11(h) Charter – Any person charged with an offence has the right if finally acquitted of the offence,
not to be tried again, and if finally found guilty and punished for the offence, not to be tried or punished for it
again.
R V Mahalingan – Issue estoppel does not prevent the Crown from leading evidence on any issue raised in
a previous trial resulting in an acquittal. It does preclude the Crown from adducing evidence that is
inconsistent with determinations of issues which were finally resolved in the accused’s favour at a previous
trial, on the basis of either a positive factual finding or reasonable doubt. The accused bears the onus in
establishing that the issue has been conclusively decided in his or her favour.
SENTENCING
GENERAL PRINCIPLES OF SENTENCING
⁃ For the most part, the general principles of sentencing have been codified in the Criminal Code.
Section 718 – Purpose. The fundamental purpose of sentencing is to contribute, along with crime
prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to
the community.

Section 718.01 – Offences against children. When a court imposes a sentence for an offence that
involved the abuse of a persons under the age of 18 years, it shall give primary consideration to the objects
of denunciation and deterrence of such conduct.

Section 718.1 – Fundamental principle. A sentence must be proportionate to the gravity of the offence
and the degree of responsibility of the offender.

Section 718.2 – Other sentencing principles. A court that imposes a sentence shall also take into
consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating
circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or
ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or
any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-
law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of
eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in
relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association
with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in
similar circumstances; (CONSISTENCY)
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the
circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Section 718.3 – Degree of Punishment

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the
punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the
court that convicts a person who commits the offence.
Discretion respecting punishment
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is,
subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person
who commits the offence, but no punishment is a minimum punishment unless it is declared to be a
minimum punishment.
(3) Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of
imprisonment in default of payment of the fine is not specified in the enactment that prescribes the
punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed
the term of imprisonment that is prescribed in respect of the offence.
Cumulative punishments
(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment
that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4)
or 743.5(1) or (2) shall be served consecutively, when
(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in
default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and
both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another
offence; or
(d) subsection 743.5(1) or (2) applies.

Section 719 – Commencement of sentence.

(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release
granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on
the person.
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into
account any time spent in custody by the person as result of the offence.
(4) Notwithstanding (1), a term of imprisonment, whether imposed by a trial court or the court appealed to,
commences or shall be deem dot be resumed, as the case may be, on the day on which the convicted
person is arrested and taken into custody under the sentence.
(5) Notwithstanding (1), where the sentence that is imposed is a fine with a term of imprisonment in default
of payment, no time prior to the day of execution of the warrant of committal counts as a part of the term of
imprisonment.
(6) An application for leave to appeal is an appeal for the purposes of this section

R v C.A.M. – Facts - The accused pleaded guilty to numerous counts of sexual assault, incest and assault
with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual,
physical and emotional abuse inflicted upon his children over a number of years. None of the offences
committed carried a penalty of life imprisonment. The trial judge, remarking that the egregiousness of the
offences, sentenced the accused to a cumulative sentence of 25 years' imprisonment, with individual
sentences running both consecutively and concurrently. The CA reduced the sentence to 18 years and 8
months. Issue - Did the CA err in holding that retribution is not a legitimate principle of sentencing? Held -
Yes; the appeal was allowed and the sentence of 25 years restored. Lamer CJC: The BC Court of Appeal
erred in applying as a principle of sentencing that fixed-term sentences under the Criminal Code ought to be
capped at 20 years, absent special circumstances
⁃ For many of the lesser crimes presently before our courts, a single or cumulative sentence beyond 20
years would undoubtedly be grossly excessive, and probably cruel and unusual
⁃ In other circumstances, such a stern sentence would be both fitting and appropriate
⁃ The ultimate protection against excessive criminal punishment lies within a sentencing judge’s
overriding duty to fashion a “just and appropriate” punishment which is proportional to the
overall culpability of the offender
⁃ A sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly
exceeds an offender’s expected remaining life span that the traditional goals of sentencing have all
but depleted their functional value
Retribution is an accepted, and indeed important, principle of sentencing in our criminal law
⁃ It represents the hallowed principle that criminal punishment, in addition to advancing utilitarian
considerations related to deterrence and rehabilitation, should also be imposed to sanction
the moral culpability of the offender
Retribution bears little relation to vengeance
⁃ Retribution should also be conceptually distinguished from its legitimate sibling, denunciation
⁃ Retribution requires that a judicial sentence properly reflect the moral blameworthiness of the
particular offender
⁃ The objective of denunciation mandates that a sentence should also communicate society's
condemnation of that particular offender's conduct
Retribution must be considered in conjunction with the other legitimate objectives of sentencing.

R v Priest – The primary objectives in sentencing a first offender are individual deterrence and
rehabilitation. The sentence should constitute the minimum necessary intervention that is adequate in the
particular circumstances. Community-based dispositions must be considered and more serious forms of
punishment should be imposed only when necessary. Furthermore, a trial judge should have either a pre-
sentence report or a very clear statement with respect to the accused’s background and circumstances,
before imposing a sentence of imprisonment on the first offender.
R v Boucher – In cases involving violence, arising out of an existing or failed domestic or romantic
relationship, the main sentencing objectives are denunciation and deterrence. Further, sentences imposed
must promote a sense of responsibility in offenders and an acknowledgement of the harm done, not only to
the immediate victim, but also to the community at large. In cases like this, the likelihood of enduring
psychological trauma to the victim from the irrational, controlling and obsessive nature of the misconduct is
significant.

Procedure
Section 720 – Sentencing Proceedings. (1) A court shall, as soon as practicable after an offender has
been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.

Section 721 – Report by probation officer. (1) Subject to regulations made under subsection (2), where
an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer
shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused
for the purpose of assisting the court in imposing a sentence or in determining whether the accused should
be discharged under section 730.

Provincial regulations
(2) The lieutenant governor in council of a province may make regulations respecting the types of offences
for which a court may require a report, and respecting the content and form of the report.
Content of report
(3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the
following matters:
 (a) the offender’s age, maturity, character, behaviour, attitude and willingness to make amends;
(b) subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous
dispositions under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of
guilt under this Act and any other Act of Parliament;
(c) the history of any alternative measures used to deal with the offender, and the offender’s
response to those measures; and
(d) any matter required, by any regulation made under subsection (2), to be included in the report.
Idem
(4) The report must also contain information on any other matter required by the court, after hearing
argument from the prosecutor and the offender, to be included in the report, subject to any contrary
regulation made under subsection (2).
Copy of report
(5) The clerk of the court shall provide a copy of the report, as soon as practicable after filing, to the offender
or counsel for the offender, as directed by the court, and to the prosecutor.

Section 722 – Victim impact statement. (1) For the purpose of determining the sentence to be imposed on
an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence,
the court shall consider any statement that may have been prepared in accordance with subsection (2) of a
victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission
of the offence.
Procedure for victim impact statement
(2) A statement referred to in subsection (1) must be
(a) prepared in writing in the form and in accordance with the procedures established by a program
designated for that purpose by the lieutenant governor in council of the province in which the court
is exercising its jurisdiction; and
(b) filed with the court.
Presentation of statement
(2.1) The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in
accordance with subsection (2), or to present the statement in any other manner that the court considers
appropriate.
Evidence concerning victim admissible
(3) Whether or not a statement has been prepared and filed in accordance with subsection (2), the court
may consider any other evidence concerning any victim of the offence for the purpose of determining the
sentence to be imposed on the offender or whether the offender should be discharged under section 730.
Definition of “victim”
(4) For the purposes of this section and section 722.2, "victim" , in relation to an offence,
(a) means a person to whom harm was done or who suffered physical or emotional loss as a result
of the commission of the offence; and
(b) where the person described in paragraph (a) is dead, ill or otherwise incapable of making a
statement referred to in subsection (1), includes the spouse or common-law partner or any relative
of that person, anyone who has in law or fact the custody of that person or is responsible for the
care or support of that person or any dependant of that person.

Section 723 – Submissions on facts (1) Before determining the sentence, a court shall give the
prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the
sentence to be imposed.
Submission of evidence
(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
Production of evidence
(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require
the production of evidence that would assist it in determining the appropriate sentence.
Compel appearance
(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the
appearance of any person who is a compellable witness to assist the court in determining the appropriate
sentence.
Hearsay evidence
(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to
be in the interests of justice, compel a person to testify where the person
(a) has personal knowledge of the matter;
(b) is reasonably available; and
(c) is a compellable witness.

Section 724 – Information accepted. (1) In determining a sentence, a court may accept as proved any
information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor
and the offender.
Jury
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of
guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear
evidence presented by either party with respect to that fact.
Disputed facts
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court
is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report,
has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the
existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any
aggravating fact or any previous conviction by the offender.
R v Bremner – The appellant received 18 months incarceration on 4 counts of indecent assault committed
in the late 1960’s and early 70’s. The appellant was an officer in a quasi-naval organization and the victims
were sea cadets between 13-16 years old. The court of appeal changed the incarceration to a conditional
sentence. Fairness in the sentencing process was adversely affected by the admission of victim impact
statements containing inappropriate material including recommendations as to the length of sentence,
statements sought to achieve personal revenge and the use of psychiatric diagnostic terms in reference to
the accused.
R v Cromwell – Plea bargain and joint submission. A judge who is considering rejecting a joint
recommendation should so advise counsel and provide them with an opportunity to justify the recommended
sentence.

Incarceration
Section 732 – Making of probation order. (1) Where a person is convicted of an offence, a court may,
having regard to the age and character of the offender, the nature of the offence and the circumstances
surrounding its commission,
(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct
that the offender be released on the conditions prescribed in a probation order; or
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two
years, direct that the offender comply with the conditions prescribed in a probation order.
Idem
(2) A court may also make a probation order where it discharges an accused under subsection 730(1).

Section 743 – Imprisonment with no other provision. Every one who is convicted of an indictable offence
for which no punishment is specially provided is liable to imprisonment for a term not exceeding 5 years.

Section 743.1 – Imprisonment for life or more than 2 years. (1) Except where otherwise provided, a
person who is sentenced to imprisonment for (a) life, (b) a term of two years or more, or (c) two or more
terms of less than two years each that are to be served one after the other and that, in the aggregate,
amount to two years or more, shall be sentenced to imprisonment in a penitentiary.
Subsequent term less than two years
(2) Where a person who is sentenced to imprisonment in a penitentiary is, before the expiration of that
sentence, sentenced to imprisonment for a term of less than two years, the person shall serve that term in a
penitentiary, but if the previous sentence of imprisonment in a penitentiary is set aside, that person shall
serve that term in accordance with subsection (3).
Imprisonment for term less than two years
(3) A person who is sentenced to imprisonment and who is not required to be sentenced as provided in
subsection (1) or (2) shall, unless a special prison is prescribed by law, be sentenced to imprisonment in a
prison or other place of confinement, other than a penitentiary, within the province in which the person is
convicted, in which the sentence of imprisonment may be lawfully executed.
Long-term supervision
(3.1) Despite subsection (3), an offender who is subject to long-term supervision under Part XXIV and is
sentenced for another offence during the period of the supervision shall be sentenced to imprisonment in a
penitentiary.
Sentence to penitentiary of person serving sentence elsewhere
(4) Where a person is sentenced to imprisonment in a penitentiary while the person is lawfully imprisoned in
a place other than a penitentiary, that person shall, except where otherwise provided, be sent immediately to
the penitentiary, and shall serve in the penitentiary the unexpired portion of the term of imprisonment that
that person was serving when sentenced to the penitentiary as well as the term of imprisonment for which
that person was sentenced to the penitentiary.
Transfer to penitentiary
(5) Where, at any time, a person who is imprisoned in a prison or place of confinement other than a
penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that
are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time
amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if
any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or
terms on the day on which that person was transferred under this section amounted to less than two years,
that person shall serve that term or terms in accordance with subsection (3).
(6) For the purposes of subsection (3), “penitentiary” does not, until a day to be fixed by order of the
Governor in Council, include the facility mentioned in subsection 15(2) of the Corrections and Conditional
Release Act.

Section 745 – Sentence of life imprisonment. Subject to section 745.1, the sentence to be pronounced
against a person who is to be sentenced to imprisonment for life shall be
(a) in respect of a person who has been convicted of high treason or first degree murder, that the person be
sentenced to imprisonment for life without eligibility for parole until the person has served twenty-five years
of the sentence;
(b) in respect of a person who has been convicted of second degree murder where that person has
previously been convicted of culpable homicide that is murder, however described in this Act, that that
person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-
five years of the sentence;
(b.1) in respect of a person who has been convicted of second degree murder where that person has
previously been convicted of an offence under section 4 or 6 of the Crimes Against Humanity and War
Crimes Act that had as its basis an intentional killing, whether or not it was planned and deliberate, that that
person be sentenced to imprisonment for life without eligibility for parole until the person has served twenty-
five years of the sentence;
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced
to imprisonment for life without eligibility for parole until the person has served at least ten years of the
sentence or such greater number of years, not being more than twenty-five years, as has been substituted
therefor pursuant to section 745.4; and
(d) in respect of a person who has been convicted of any other offence, that the person be sentenced to
imprisonment for life with normal eligibility for parole.

Section 718.3(4) - Cumulative punishments. The court or youth justice court that sentences an accused
may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that
result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when
(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment,
whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and
imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in
respect of another offence; or
(d) subsection 743.5(1) or (2) applies.

Conditional Sentences of Imprisonment

Section 742 – Definitions. In sections 742.1 to 742.7,
“change”, in relation to optional conditions, includes deletions and additions;
“optional conditions” means the conditions referred to in subsection 742.3(2);
“supervisor” means a person designated by the Attorney General, either by name or by title of office, as a
supervisor for the purposes of sections 742.1 to 742.7.

Section 742.1– Imposing of a Conditional Sentence. If a person is convicted of an offence, other than a
serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization
offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more
or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of
imprisonment of less than two years and is satisfied that the service of the sentence in the
community would not endanger the safety of the community and would be consistent with the
fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the
purpose of supervising the offender’s behaviour in the community, order that the offender serve the
sentence in the community, subject to the offender’s compliance with the conditions imposed under section
742.3.

Section 742.3 – Compulsory Conditions of Conditional Sentence Order. (1) The court shall prescribe,
as conditions of a conditional sentence order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the
conditional sentence order, and
 (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is
obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the
court or the supervisor of any change of employment or occupation.
Optional conditions of conditional sentence order
(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do
one or more of the following:
(a) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations
made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition
by the offender of the same offence or the commission of other offences.
Obligations of court
(3) A court that makes an order under this section shall
(a) cause a copy of the order to be given to the offender;
(b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section
742.4 for a change to the optional conditions; and
(d) take reasonable measures to ensure that the offender understands the order and the
explanations.
For greater certainty
(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.

Section 742.6 – Procedure on breach of condition. (1) For the purpose of proceedings under this section,
(a) the provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a
justice apply, with any modifications that the circumstances require, and any reference in those Parts to
committing an offence shall be read as a reference to breaching a condition of a conditional sentence order;
(b) the powers of arrest for breach of a condition are those that apply to an indictable offence, with any
modifications that the circumstances require, and subsection 495(2) does not apply;
(c) despite paragraph (a), if an allegation of breach of condition is made, the proceeding is commenced by
(i) the issuance of a warrant for the arrest of the offender for the alleged breach,
(ii) the arrest without warrant of the offender for the alleged breach, or
(iii) the compelling of the offender’s appearance in accordance with paragraph (d);
(d) if the offender is already detained or before a court, the offender’s appearance may be compelled under
the provisions referred to in paragraph (a);
(e) if an offender is arrested for the alleged breach, the peace officer who makes the arrest, the officer in
charge or a judge or justice may release the offender and the offender’s appearance may be compelled
under the provisions referred to in paragraph (a); and
(f) any judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction or any justice of
the peace may issue a warrant to arrest no matter which court, judge or justice sentenced the offender, and
the provisions that apply to the issuance of telewarrants apply, with any modifications that the circumstances
require, as if a breach of condition were an indictable offence.
Interim release
(2) For the purpose of the application of section 515, the release from custody of an offender who is
detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed
by subsection 515(6).
Hearing
(3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon
thereafter as is practicable, after
(a) the offender’s arrest; or
(b) the compelling of the offender’s appearance in accordance with paragraph (1)(d).
Place
(3.1) The allegation may be heard by any court having jurisdiction to hear that allegation in the place where
the breach is alleged to have been committed or the offender is found, arrested or in custody.
Attorney General’s consent
(3.2) If the place where the offender is found, arrested or in custody is outside the province in which the
breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in
that place without
(a) the consent of the Attorney General of the province in which the breach is alleged to have been
committed; or
(b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the
conditional sentence order were instituted by or on behalf of the Attorney General of Canada.
Adjournment
(3.3) A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing
for a reasonable period.
Report of supervisor
(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which
report must include, where appropriate, signed statements of witnesses.
Admission of report on notice of intent
(5) The report is admissible in evidence if the party intending to produce it has, before the hearing, given the
offender reasonable notice and a copy of the report.

Requiring attendance of supervisor or witness

(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the
supervisor or of any witness whose signed statement is included in the report.
Powers of court
(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable
excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the
court may
(a) take no action;
(b) change the optional conditions;
(c) suspend the conditional sentence order and direct
(i) that the offender serve in custody a portion of the unexpired sentence, and
(ii) that the conditional sentence order resume on the offender’s release from custody, either with or without
changes to the optional conditions; or
(d) terminate the conditional sentence order and direct that the offender be committed to custody until the
expiration of the sentence.
Warrant or arrest — suspension of running of conditional sentence order
(10) The running of a conditional sentence order imposed on an offender is suspended during the period
that ends with the determination of whether a breach of condition had occurred and begins with the earliest
of
(a) the issuance of a warrant for the arrest of the offender for the alleged breach,
(b) the arrest without warrant of the offender for the alleged breach, and
(c) the compelling of the offender’s appearance in accordance with paragraph (1)(d).
Conditions continue
(11) If the offender is not detained in custody during any period referred to in subsection (10), the conditions
of the order continue to apply, with any changes made to them under section 742.4, and any subsequent
breach of those conditions may be dealt with in accordance with this section.
Detention under s. 515(6)
(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an
order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues
running while the offender is detained under the order.
Earned remission does not apply
(13) Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody
under subsection 515(6).
Unreasonable delay in execution
(14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may,
at any time, order that any period between the issuance and execution of the warrant that it considers
appropriate in the interests of justice is deemed to be time served under the conditional sentence order
unless the period has been so deemed under subsection (15).
Allegation dismissed or reasonable excuse
(15) If the allegation is withdrawn or dismissed or the offender is found to have had a reasonable excuse for
the breach, the sum of the following periods is deemed to be time served under the conditional sentence
order:
(a) any period for which the running of the conditional sentence order was suspended; and
(b) if subsection (12) applies, a period equal to one half of the period that the conditional sentence order
runs while the offender is detained under an order referred to in that subsection.
Powers of court
(16) If a court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the
proof of which lies on the offender, breached a condition of the conditional sentence order, the court may, in
exceptional cases and in the interests of justice, order that some or all of the period of suspension referred
to in subsection (10) is deemed to be time served under the conditional sentence order.
Considerations
(17) In exercising its discretion under subsection (16), a court shall consider
(a) the circumstances and seriousness of the breach;
(b) whether not making the order would cause the offender undue hardship based on the offender’s
individual circumstances; and
(c) the period for which the offender was subject to conditions while the running of the conditional sentence
order was suspended and whether the offender complied with those conditions during that period.

Section 742.7 – If the person imprisoned for new offence. (1) If an offender who is subject to a
conditional sentence order is imprisoned as a result of a sentence imposed for another offence, whenever
committed, the running of the conditional sentence order is suspended during the period of imprisonment for
that other offence.
Breach of condition
(2) If an order is made under paragraph 742.6(9)(c) or (d) to commit an offender to custody, the custodial
period ordered shall, unless the court considers that it would not be in the interests of justice, be served
consecutively to any other period of imprisonment that the offender is serving when that order is made.
Multiple sentences
(3) If an offender is serving both a custodial period referred to in subsection (2) and any other period of
imprisonment, the periods shall, for the purpose of section 743.1 and section 139 of the Corrections and
Conditional Release Act, be deemed to constitute one sentence of imprisonment.
Conditional sentence order resumes
(4) The running of any period of the conditional sentence order that is to be served in the community
resumes upon the release of the offender from prison on parole, on statutory release, on earned remission,
or at the expiration of the sentence.
R v Proulx – Note: the range of offences eligible conditional sentences has been altered since this case
was decided, yet the principles continue to apply. Facts - The accused entered guilty pleas to one count of
dangerous driving causing death and one count of dangerous driving causing bodily harm. He was
sentenced to 18 months of incarceration, to be served concurrently on both charges. The sentencing judge
concluded that a conditional sentence pursuant to s. 742.1 of the Code, would not be appropriate because it
would be inconsistent with the objectives of denunciation and general deterrence. The Court of Appeal
allowed the appeal and substituted a conditional custodial sentence for the jail term. Issue - Did the trial
judge err in not imposing a conditional sentence? Held - No; appeal allowed. SCC considered the principles
to be applied under section 742.1. Lamer CJC:

The new types of sanctions introduced in the 1996 amendments were enacted both to reduce reliance on
incarceration as a sanction and to increase the use of principles of restorative justice in sentencing

A conditional sentence should be distinguished from probationary measures

⁃ Probation is primarily a rehabilitative sentencing tool.
⁃ Parliament intended conditional sentences to include both punitive and rehabilitative aspects
o Therefore, conditional sentences should generally include punitive conditions that are restrictive of
the offender's liberty
o Conditions such as house arrest should be the norm, not the exception

Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a
conditional sentence
1. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment
2. The court must impose a term of imprisonment of less than two years
3. The safety of the community would not be endangered by the offender serving the sentence in the
community
4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing
set out in ss. 718 to 718.2.

The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years
does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering
whether that sentence can be served in the community
⁃ Instead, a purposive interpretation of s. 742.1(a) should be adopted
⁃ In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary
measures as inappropriate
o Having determined that the appropriate range of sentence is a term of imprisonment of
less than two years, the judge should then consider whether it is appropriate for
the offender to serve his or her sentence in the community

In making this determination on whether the accused would endanger the community , the judge should
consider the risk posed by the specific offender and take into consideration two factors
Two factors should be taken into account
1. The risk of the offender re-offending
2. The gravity of the damage that could ensue in the event of re-offence

A conditional sentence can provide significant denunciation and deterrence

⁃ The more serious the offence, the longer and more onerous the conditional sentence should be

Where a combination of both punitive and restorative objectives may be achieved, a conditional
sentence will likely be more appropriate than incarceration
⁃ Where objectives such as denunciation and deterrence are particularly pressing, incarceration will
 generally be the preferable sanction
⁃ A conditional sentence may be imposed even where there are aggravating circumstances, although the
need for denunciation and deterrence will increase in these circumstances

No party is under a burden of proof to establish that a conditional sentence is either appropriate or
inappropriate in the circumstances

Sentencing judges have a wide discretion in the choice of the appropriate sentence and are entitled to
considerable deference from appellate courts
⁃ A court of appeal should only intervene to vary a sentence imposed at trial if the sentence is
demonstrably unfit

In this case the sentencing judge considered that a term of imprisonment of 18 months was appropriate and
declined to permit the accused to serve his term in the community
⁃ She found that, while the accused would not endanger the safety of the community by serving a
conditional sentence, such a sentence would not be in conformity with the objectives of s. 718.

Probation and Community Service

Section 731– Making of probation order. (1) Where a person is convicted of an offence, a court may,
having regard to the age and character of the offender, the nature of the offence and the circumstances
surrounding its commission,
(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the
offender be released on the conditions prescribed in a probation order; or
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct
that the offender comply with the conditions prescribed in a probation order.
Idem
(2) A court may also make a probation order where it discharges an accused under subsection 730(1).

Section 732.1 – Definitions. (1) In this section and section 732.2,

“change”, in relation to optional conditions, includes deletions and additions;
“optional conditions” means the conditions referred to in subsection (3) or (3.1).
Compulsory conditions of probation order
(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court; and
(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify
the court or the probation officer of any change of employment or occupation.
Optional conditions of probation order
(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more
of the following:
(a) report to a probation officer
(i) within two working days, or such longer period as the court directs, after the making of the probation
order, and
(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;
(b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is
obtained from the court or the probation officer;
(c) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(d) abstain from owning, possessing or carrying a weapon;
(e) provide for the support or care of dependants;
(f) perform up to 240 hours of community service over a period not exceeding eighteen months;
(g) if the offender agrees, and subject to the program director’s acceptance of the offender, participate
actively in a treatment program approved by the province;
(g.1) where the lieutenant governor in council of the province in which the probation order is made has
established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a
treatment facility, designated by the lieutenant governor in council of the province, for assessment and
curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended
pursuant to the program;
(g.2) where the lieutenant governor in council of the province in which the probation order is made has
established a program governing the use of an alcohol ignition interlock device by an offender and if the
offender agrees to participate in the program, comply with the program; and
(h) comply with such other reasonable conditions as the court considers desirable, subject to any
regulations made under subsection 738(2), for protecting society and for facilitating the offender’s
successful reintegration into the community.
Optional conditions — organization
(3.1) The court may prescribe, as additional conditions of a probation order made in respect of an
organization, that the offender do one or more of the following:
(a) make restitution to a person for any loss or damage that they suffered as a result of the offence;
(b) establish policies, standards and procedures to reduce the likelihood of the organization committing a
subsequent offence;
(c) communicate those policies, standards and procedures to its representatives;
(d) report to the court on the implementation of those policies, standards and procedures;
(e) identify the senior officer who is responsible for compliance with those policies, standards and
procedures;
(f) provide, in the manner specified by the court, the following information to the public, namely,
(i) the offence of which the organization was convicted,
(ii) the sentence imposed by the court, and
(iii) any measures that the organization is taking — including any policies, standards and procedures
established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and
(g) comply with any other reasonable conditions that the court considers desirable to prevent the
organization from committing subsequent offences or to remedy the harm caused by the offence.
Consideration — organizations
(3.2) Before making an order under paragraph (3.1)(b), a court shall consider whether it would be more
appropriate for another regulatory body to supervise the development or implementation of the policies,
standards and procedures referred to in that paragraph.
Form and period of order
(4) A probation order may be in Form 46, and the court that makes the probation order shall specify therein
the period for which it is to remain in force.
Obligations of court
(5) The court that makes a probation order shall
(a) cause a copy of the order to be given to the offender;
(b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1
to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3)
for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.
For greater certainty
(6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation
order.

Section 732.2 – Coming into force of order. (1) A probation order comes into force
(a) on the date on which the order is made;
(b) where the offender is sentenced to imprisonment under paragraph 731(1)(b) or was previously
sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if
released from prison on conditional release, at the expiration of the sentence of imprisonment; or
(c) where the offender is under a conditional sentence order, at the expiration of the conditional sentence
order.
Duration of order and limit on term of order
(2) Subject to subsection (5),
(a) where an offender who is bound by a probation order is convicted of an offence, including an offence
under section 733.1, or is imprisoned under paragraph 731(1)(b) in default of payment of a fine, the order
continues in force except in so far as the sentence renders it impossible for the offender for the time being to
comply with the order; and
(b) no probation order shall continue in force for more than three years after the date on which the order
came into force.
Changes to probation order
(3) A court that makes a probation order may at any time, on application by the offender, the probation
officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or
both of the probation officer and the prosecutor,
(a) make any changes to the optional conditions that in the opinion of the court are rendered
desirable by a change in the circumstances since those conditions were prescribed,
(b) relieve the offender, either absolutely or on such terms or for such period as the court deems
desirable, of compliance with any optional condition, or
(c) decrease the period for which the probation order is to remain in force, and the court shall
thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform
the offender of its action and give the offender a copy of the order so endorsed.
Judge may act in chambers
(4) All the functions of the court under subsection (3) may be exercised in chambers.
Where person convicted of offence
(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence
under section 733.1, and
(a) the time within which an appeal may be taken against that conviction has expired and the offender has
not taken an appeal,
(b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or
(c) the offender has given written notice to the court that convicted the offender that the offender elects not
to appeal the conviction or has abandoned the appeal, as the case may be, in addition to any punishment
that may be imposed for that offence, the court that made the probation order may, on application by the
prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,
(d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any
sentence that could have been imposed if the passing of sentence had not been suspended, or
(e) make such changes to the optional conditions as the court deems desirable, or extend the period for
which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,
and the court shall thereupon endorse the probation order accordingly and, if it changes the optional
conditions or extends the period for which the order is to remain in force, inform the offender of its action
and give the offender a copy of the order so endorsed.
Compelling appearance of person bound
(6) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a
justice apply, with such modifications as the circumstances require, to proceedings under subsections (3)
and (5).

Section 733.1 – Failure to comply with probation order. (1) An offender who is bound by a probation
order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding
eighteen months, or to a fine not exceeding two thousand dollars, or both.
Where accused may be tried and punished
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court
having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in
the place where the accused is found, is arrested or is in custody, but where the place where the accused is
found, is arrested or is in custody is outside the province in which the offence is alleged to have been
committed, no proceedings in respect of that offence shall be instituted in that place without the consent of
the Attorney General of that province.

R v Ziatas – Facts - Appeal by the accused from the sentence imposed upon conviction after his plea of
guilty to a charge of assault with intent to resist arrest contrary to s. 246(2)(b) of the Code. The trial judge
imposed a fine of $150 and placed the appellant on probation for a term of one year. One of the conditions
of the probation order was that the appellant should not operate a motor vehicle for the period of one year.
Issue - Was the driving prohibition a valid probation condition for assault with intent to resist arrest? Held -
No; appeal allowed. The trial judge proceeded upon a wrong principle, inasmuch as he imposed this term
of the probation order as an additional punishment, whereas his only power, was to impose such
reasonable conditions as he considered desirable for securing the good conduct of the accused and
for preventing the repetition by him of the same offence or the commission of other offences . Note -
The ruling in Ziatas with respect to the residual subcategory, s. 732.1(3)(h), has been followed in a
number of cases.

Fines
Section 734 – Power of court to impose fine. (1) Subject to subsection (2), a court that convicts a person,
other than an organization, of an offence may fine the offender by making an order under section 734.1
(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in
lieu of any other sanction that the court is authorized to impose; or
(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other
sanction that the court is required or authorized to impose.
Offender’s ability to pay
(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a
forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender
is able to pay the fine or discharge it under section 736.
Meaning of default of payment
(3) For the purposes of this section and sections 734.1 to 737, a person is in default of payment of a fine if
the fine has not been paid in full by the time set out in the order made under section 734.1.
Imprisonment in default of payment
(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with
subsection (5), shall be deemed to be imposed in default of payment of the fine.
Determination of term
(5) The term of imprisonment referred to in subsection (4) is the lesser of
(a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which
(i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying
the defaulter to prison, calculated in accordance with regulations made under subsection (7), and
(ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the
province in which the fine was imposed, and
(b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment
for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six
months in the case of a summary conviction offence.
Moneys found on offender
(6) All or any part of a fine imposed under this section may be taken out of moneys found in the possession
of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that
ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so
directs.
Provincial regulations
(7) The lieutenant governor in council of a province may make regulations respecting the calculation of the
costs and charges referred to in subparagraph (5)(a)(i) and in paragraph 734.8(1)(b).
Application to other law
(8) This section and sections 734.1 to 734.8 and 736 apply to a fine imposed under any Act of Parliament,
except that subsections (4) and (5) do not apply if the term of imprisonment in default of payment of the fine
provided for in that Act or regulation is
(a) calculated by a different method; or
(b) specified, either as a minimum or a maximum.

Section 734.6 – Civil enforcement of fines, forfeiture. (1) Where

(a) an offender is in default of payment of a fine, or
(b) a forfeiture imposed by law is not paid as required by the order imposing it, then, in addition to any other
method provided by law for recovering the fine or forfeiture,
(c) the Attorney General of the province to whom the proceeds of the fine or forfeiture belong, or
(d) the Attorney General of Canada, where the proceeds of the fine or forfeiture belong to Her Majesty in
right of Canada, may, by filing the order, enter as a judgment the amount of the fine or forfeiture, and costs,
if any, in any civil court in Canada that has jurisdiction to enter a judgment for that amount.
Effect of filing order
(2) An order that is entered as a judgment under this section is enforceable in the same manner as if it were
a judgment obtained by the Attorney General of the province or the Attorney General of Canada, as the case
may be, in civil proceedings.

Section 734.7 – Warrant of committal. (1) Where time has been allowed for payment of a fine, the court
shall not issue a warrant of committal in default of payment of the fine
(a) until the expiration of the time allowed for payment of the fine in full; and
(b) unless the court is satisfied
(i) that the mechanisms provided by sections 734.5 and 734.6 are not appropriate in the circumstances, or
(ii) that the offender has, without reasonable excuse, refused to pay the fine or discharge it under section
736.
Reasons for committal
(2) Where no time has been allowed for payment of a fine and a warrant committing the offender to prison
for default of payment of the fine is issued, the court shall state in the warrant the reason for immediate
committal.
Period of imprisonment
(2.1) The period of imprisonment in default of payment of the fine shall be specified in a warrant of committal
referred to in subsection (1) or (2).
Compelling appearance of person bound
(3) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a
justice apply, with such modifications as the circumstances require, to proceedings under paragraph (1)(b).
Effect of imprisonment
(4) The imprisonment of an offender for default of payment of a fine terminates the operation of sections
734.5 and 734.6 in relation to that fine.

Section 736 – Note, there is no fine-option program in force in most provinces, including Ontario.
Fine option program. (1) An offender who is fined under section 734 may, whether or not the offender is
serving a term of imprisonment imposed in default of payment of the fine, discharge the fine in whole or in
part by earning credits for work performed during a period not greater than two years in a program
established for that purpose by the lieutenant governor in council
(a) of the province in which the fine was imposed, or
(b) of the province in which the offender resides, where an appropriate agreement is in effect between the
government of that province and the government of the province in which the fine was imposed, if the
offender is admissible to such a program.
Credits and other matters
(2) A program referred to in subsection (1) shall determine the rate at which credits are earned and may
provide for the manner of crediting any amounts earned against the fine and any other matters necessary
for or incidental to carrying out the program.
Deemed payment
(3) Credits earned for work performed as provided by subsection (1) shall, for the purposes of this Act, be
deemed to be payment in respect of a fine.
Federal-provincial agreement
(4) Where, by virtue of subsection 734.4(2), the proceeds of a fine belong to Her Majesty in right of Canada,
an offender may discharge the fine in whole or in part in a fine option program of a province pursuant to
subsection (1), where an appropriate agreement is in effect between the government of the province and the
Government of Canada.

Section 787 – General penalty. (1) Unless otherwise provided by law, everyone who is convicted of an
offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a
term of imprisonment not exceeding six months or to both.
Imprisonment in default where not otherwise specified
(2) Where the imposition of a fine or the making of an order for the payment of money is authorized by law,
but the law does not provide that imprisonment may be imposed in default of payment of the fine or
compliance with the order, the court may order that in default of payment of the fine or compliance with the
order, as the case may be, the defendant shall be imprisoned for a term not exceeding six months.

Discharges
Section 730 – Conditional and absolute discharge. (1) Where an accused, other than an organization,
pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is
prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before
which the accused appears may, if it considers it to be in the best interests of the accused and not contrary
to the public interest, instead of convicting the accused, by order direct that the accused be discharged
absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Period for which appearance notice, etc., continues in force
(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released
from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence
but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance
issued to or given or entered into by the accused continues in force, subject to its terms, until a disposition in
respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is
found guilty, the court, judge or justice orders that the accused be taken into custody pending such a
disposition.

Effect of discharge
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender
shall be deemed not to have been convicted of the offence except that
(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the
informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if
that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against
the offender; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
Where person bound by probation order convicted of offence
(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender
was directed to be discharged under this section is convicted of an offence, including an offence under
section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority
under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge,
convict the offender of the offence to which the discharge relates and impose any sentence that could have
been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a
conviction under this subsection where an appeal was taken from the order directing that the offender be
discharged.

R v Fallofield – Facts - The accused pleaded guilty to a charge of being in unlawful possession of some
pieces of carpet of a total value of less than $200, knowing the same to have been obtained by theft. He is a
corporal in the Canadian Armed Forces, aged 26, married, and with no previous record. The trial judge
declined to grant the discharge, convicted the appellant, and sentenced him to a fine of $100, or in default,
30 days in prison. Issues - 1. Did the trial judge err in refusing to grant an absolute or a conditional
discharge? 2. If so, can the CA make such an order? Held - 1. Yes; 2. Yes; appeal allowed. At trial -
convicted and fined $100, because it was not unintentional or strict liability. Appeal allowed, Discharge
ordered. Discharge should not be used nor denied routinely for any offence. By reviewing the authorities the
court concluded that the application of section 730 is as follows:
1. The section may be used in respect of any offence other than an offence for which a minimum
punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for
life or by death
2. There is nothing in the language that limits it to a technical or trivial offence
3. Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must
consider that it is in the best interests of the accused that he should be discharged either
absolutely or upon condition; if it is not, then that is the end of the matter
4. If it is decided that it is in the best interests of the accused, then the court must consider that a grant
of discharge is not contrary to the public interest
5. Generally, the first condition would presuppose that the accused is a person of good character, without
previous conviction, that it is not necessary to enter a conviction against him in order to deter him
from future offences or to rehabilitate him, and that the entry of a conviction against him may have
significant adverse repercussions
6. In the context of the second condition the public interest in the deterrence of others, while it must be
given due weight, does not preclude the judicious use of the discharge provisions
7. Discharges should not be exercised as an alternative to probation or suspended sentence.
8. Discharges should not be applied routinely to any particular offence

Recognizance Orders
Section 810 – Where injury or damage feared. (1) An information may be laid before a justice by or on
behalf of any person who fears on reasonable grounds that another person will cause personal injury to him
or her or to his or her spouse or common-law partner or child or will damage his or her property.
Duty of justice
(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him
or before a summary conviction court having jurisdiction in the same territorial division.
Adjudication
(3) The justice or the summary conviction court before which the parties appear may, if satisfied by the
evidence adduced that the person on whose behalf the information was laid has reasonable grounds for his
or her fears,
(a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of
good behaviour for any period that does not exceed twelve months, and comply with such other reasonable
conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as
the court considers desirable for securing the good conduct of the defendant; or
(b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to
enter into the recognizance.
Conditions
(3.1) Before making an order under subsection (3), the justice or the summary conviction court shall
consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to
include as a condition of the recognizance that the defendant be prohibited from possessing any firearm,
cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or
explosive substance, or all such things, for any period specified in the recognizance and, where the justice
or summary conviction court decides that it is so desirable, the justice or summary conviction court shall add
such a condition to the recognizance.
Surrender, etc.
(3.11) Where the justice or summary conviction court adds a condition described in subsection (3.1) to a
recognizance order, the justice or summary conviction court shall specify in the order the manner and
method by which
(a) the things referred to in that subsection that are in the possession of the accused shall be surrendered,
disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates held by the person shall be surrendered.
Reasons
(3.12) Where the justice or summary conviction court does not add a condition described in subsection (3.1)
to a recognizance order, the justice or summary conviction court shall include in the record a statement of
the reasons for not adding the condition.
Idem
(3.2) Before making an order under subsection (3), the justice or the summary conviction court shall
consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf
the information was laid or of that person’s spouse or common-law partner or child, as the case may be, to
add either or both of the following conditions to the recognizance, namely, a condition
(a) prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place
specified in the recognizance where the person on whose behalf the information was laid or that person’s
spouse or common-law partner or child, as the case may be, is regularly found; and
(b) prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person
on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the
case may be.
Forms
(4) A recognizance and committal to prison in default of recognizance under subsection (3) may be in Forms
32 and 23, respectively.
Modification of recognizance
(4.1) The justice or the summary conviction court may, on application of the informant or the defendant, vary
the conditions fixed in the recognizance.
Procedure
(5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings
under this section.

Section 810.1 – Where fear of sexual offence. (1) Any person who fears on reasonable grounds that
another person will commit an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section
163.1, 170, 171 or 172.1, subsection 173(2) or section 271, 272 or 273, in respect of one or more persons
who are under the age of 16 years, may lay an information before a provincial court judge, whether or not
the person or persons in respect of whom it is feared that the offence will be committed are named.
Appearances
(2) A provincial court judge who receives an information under subsection (1) may cause the parties to
appear before a provincial court judge.
Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the
informant has reasonable grounds for the fear, the judge may order that the defendant enter into a
recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months.
Duration extended
(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of
a sexual offence in respect of a person who is under the age of 16 years, the judge may order that the
defendant enter into the recognizance for a period that does not exceed two years.
Conditions in recognizance
(3.02) The provincial court judge may add any reasonable conditions to the recognizance that the judge
considers desirable to secure the good conduct of the defendant, including conditions that
(a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of
16 years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of
communicating with a person under that age;
(b) prohibit the defendant from attending a public park or public swimming area where persons under the
age of 16 years are present or can reasonably be expected to be present, or a daycare centre,
schoolground or playground;
(c) require the defendant to participate in a treatment program;
(d) require the defendant to wear an electronic monitoring device, if the Attorney General makes the
request;
(e) require the defendant to remain within a specified geographic area unless written permission to leave
that area is obtained from the provincial court judge;
(f) require the defendant to return to and remain at his or her place of residence at specified times; or
(g) require the defendant to abstain from the consumption of drugs except in accordance with a medical
prescription, of alcohol or of any other intoxicating substance.
Conditions — firearms
(3.03) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s
safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow,
prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive
substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that
condition to the recognizance and specify the period during which the condition applies.
Surrender, etc.
(3.04) If the provincial court judge adds a condition described in subsection (3.03) to a recognizance, the
judge shall specify in the recognizance how the things referred to in that subsection that are in the
defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the
authorizations, licences and registration certificates that are held by the defendant should be surrendered.
Condition — reporting
(3.05) The provincial court judge shall consider whether it is desirable to require the defendant to report to
the correctional authority of a province or to an appropriate police authority. If the judge decides that it is
desirable to do so, the judge shall add that condition to the recognizance.
Refusal to enter into recognizance
(3.1) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months
if the defendant fails or refuses to enter into the recognizance.
Judge may vary recognizance
(4) A provincial court judge may, on application of the informant or the defendant, vary the conditions fixed in
the recognizance.
Other provisions to apply
(5) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to
recognizances made under this section.

R v Budreo – Leave to appeal to SCC refused.

⁃ The principles of fundamental justice in section 7 of the Charter requires that there be a residual
discretion to issue process. Section 810.1 (2) must therefore be read down so that the word “may”
should replace the word “shall”.
⁃ The court has the power to issue a warrant for the arrest of the defendant and require that he be detained
in custody or to make a release order under section 515. However, because of a hearing under
section 810.1 can only result in the defendant being required to enter into a recognizance, the
circumstances in which it would be necessary in the public interest to issue an arrest warrant will
be limited to cases where that process is necessary to preserve the integrity of these proceedings.
The justice will require the informant to make out a case that the defendant will not otherwise
attend court or that the defendant pose an imminent risk to the safety of children, which section
810.1 is designed to protect. If the justice does issue an arrest warrant, section 515 directs the
justice to release the defendant on a simple undertaking without conditions, unless the prosecutor
shows cause why some more intrusive order – such as recognizance with conditions – is required.
The discretion under section 515 must be exercised judicially and bearing in mind the limited
conditions that can be imposed following a successful application. Although section 515 provides
that the justice may order the detention of the defendant pending the hearing, that discretion is
circumscribed by the provisions of section 515(10). In light of the limited consequences of a
successful application under section 810.1, only in unusual circumstances will the justice be
entitled to order the detention of the defendant pending the hearing.

Restitution
Section 738 – Restitution to victims of offences.
(1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing
sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in
addition to any other measure imposed on the offender, order that the offender make restitution to another
person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the
commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an
amount not exceeding the replacement value of the property as of the date the order is imposed, less the
value of any part of the property that is returned to that person as of the date it is returned, where the
amount is readily ascertainable;
(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or
the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all
pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is
readily ascertainable; and
(c) in the case of bodily harm or threat of bodily harm to the offender’s spouse or common-law partner or
child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of
the offender, where the spouse or common-law partner, child or other person was a member of the
offender’s household at the relevant time, by paying to the person in question, independently of any amount
ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses
incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food,
child care and transportation, where the amount is readily ascertainable.
Regulations
(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of
provisions on enforcement of restitution orders as an optional condition of a probation order or of a
conditional sentence order.

Section 739 – Restitution to persons acting in good faith. Where an offender is convicted or discharged
under section 730 of an offence and
(a) any property obtained as a result of the commission of the offence has been conveyed or transferred for
valuable consideration to a person acting in good faith and without notice, or
(b) the offender has borrowed money on the security of that property from a person acting in good faith and
without notice,
the court may, where that property has been returned to the lawful owner or the person who had lawful
possession of that property at the time the offence was committed, order the offender to pay as restitution to
the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that
property or the total amount outstanding in respect of the loan, as the case may be.

Section 740 – Priority to restitution. Where the court finds it applicable and appropriate in the
circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739,
and
(a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is
the same as property in respect of which the order of restitution may be made, or
(b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender
would not have the means or ability to comply with both the order of restitution and the order to pay the fine,
the court shall first make the order of restitution and shall then consider whether and to what extent an order
of forfeiture or an order to pay a fine is appropriate in the circumstances.

Section 741 – Enforcing restitution order. (1) Where an amount that is ordered to be paid under section
732.1, 738, 739 or 742.3, is not paid without delay, the person to whom the amount was ordered to be paid
may, by filing the order, enter as a judgment the amount ordered to be paid in any civil court in Canada that
has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in
the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender
(2) All or any part of an amount that is ordered to be paid under section 738 or 739 may be taken out of
moneys found in the possession of the offender at the time of the arrest of the offender if the court making
the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by
claimants other than the offender, so directs.

Section 741.1 – Notice of orders of restitution. Where a court makes an order of restitution under section
738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person
to whom the restitution is ordered to be paid.

Section 741.2 – Civil remedy not affected. A civil remedy for an act or omission is not affected by reason
only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.

Victim Surcharges
Section 737(1) – Victim surcharge. (1) Subject to subsection (5), an offender who is convicted or
discharged under section 730 of an offence under this Act or the Controlled Drugs and Substances Act shall
pay a victim surcharge, in addition to any other punishment imposed on the offender.
Exception
(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the
dependants of the offender would result from payment of the victim surcharge, the court may, on application
of the offender, make an order exempting the offender from the application of subsection (1).

Sentencing Aboriginal Offenders

Section 718.2(e) – Other sentencing principles. A court that imposes a sentence shall also take into
consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

R v Gladue – Facts: Offender, an aboriginal woman, plead guilty to stabbing death of her husband.
Sentencing judge sentenced her to three years’ imprisonment. Stated that s 718.2(e) did not apply since she
was living in an urban area off-reserve and not “within the aboriginal”. CA disagreed with narrow application
of s. 718.2(e) but did not vary the sentence. Issues: How is s. 718.2(e) to be applied? Held: the sentencing
judge may have erred in limiting the application of s. 718.2(e) to the circumstances of aboriginal offenders
living in rural areas or on-reserve. BUT the offence was a particularly serious one, and the sentence was no
unreasonable. Appeal dismissed. Reasoning:
⁃ s. 718.2(e) mandatorily requires judges to consider all available sanctions other than imprisonment and to
pay particular attention to the circumstances of aboriginal offenders.
o It is remedial in nature and is designed to ameliorate the problem of overrepresentation of
aboriginal people in prisons, and to encourage judges to take a restorative approach.
⁃ s. 718.2(e), however, alters the method of analysis for sentencing judges in determining a fit sentence for
aboriginal offenders.
o directs judges to undertake the sentencing of such offenders individually, but also differently,
because the circumstances of aboriginal people are unique.
o the judge must consider: (a) the unique systemic or background factors that may have played a
part in bringing the particular aboriginal offender before the courts; and (b) the types of
sentencing procedures and sanctions that may be appropriate in the circumstances for the
offender because of his particular aboriginal heritage or connection.
⁃ If there is no alternative to incarceration the length of the term must be carefully considered.
o The jail term for an aboriginal offender may in some circumstances be less than the term imposed
on a non-aboriginal offender for the same offence.
o Doesn’t automatically reduce the prison sentence of aboriginal offenders; nor should it be assumed
that an offender is receiving a more lenient sentence simply because incarceration is not
imposed.
⁃ Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a
large city or a rural area.
o The term “community” must be defined broadly so as to include any network of support and
interaction that might be available, including one in an urban centre. The fact that an
aboriginal offender in an urban centre lacks a network of support does not relieve the
sentencing judge of the obligation to try to find an alternative to jail.

Punishment of Organizations
Section 718.21 – Additional factors. A court that imposes a sentence on an organization shall also take
into consideration the following factors:
(a) any advantage realized by the organization as a result of the offence;
(b) the degree of planning involved in carrying out the offence and the duration and complexity of the
offence;
(c) whether the organization has attempted to conceal its assets, or convert them, in order to show that it is
not able to pay a fine or make restitution;
(d) the impact that the sentence would have on the economic viability of the organization and the continued
employment of its employees;
(e) the cost to public authorities of the investigation and prosecution of the offence;
(f) any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct
that formed the basis of the offence;
(g) whether the organization was — or any of its representatives who were involved in the commission of
the offence were — convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
(h) any penalty imposed by the organization on a representative for their role in the commission of the
offence;
(i) any restitution that the organization is ordered to make or any amount that the organization has paid to a
victim of the offence; and
(j) any measures that the organization has taken to reduce the likelihood of it committing a subsequent
offence.

Section 735 – Fines on organizations. (1) An organization that is convicted of an offence is liable, in lieu
of any imprisonment that is prescribed as punishment for that offence, to be fined in an amount, except
where otherwise provided by law,
(a) that is in the discretion of the court, where the offence is an indictable offence; or
(b) not exceeding one hundred thousand dollars, where the offence is a summary conviction offence.
Application of certain provisions — fines
(1.1) A court that imposes a fine under subsection (1) or under any other Act of Parliament shall make an
order that clearly sets out
(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion of it, must be paid; and
(d) any other terms respecting the payment of the fine that the court deems appropriate.
Effect of filing order
(2) Section 734.6 applies, with any modifications that are required, when an organization fails to pay the fine
in accordance with the terms of the order.

Parole
Section 743.6 – Power of court to delay parole. (1) Notwithstanding subsection 120(1) of the Corrections
and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of
imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as
a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was
prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the
commission of the offence and the character and circumstances of the offender, that the expression of
society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that
the portion of the sentence that must be served before the offender may be released on full parole is one
half of the sentence or ten years, whichever is less.
Power of court to delay parole
(1.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender
receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life
imposed otherwise than as a minimum punishment, on conviction for a criminal organization offence other
than an offence under section 467.11, 467.12 or 467.13, the court may order that the portion of the sentence
that must be served before the offender may be released on full parole is one half of the sentence or ten
years, whichever is less.
Power of court to delay parole
(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender
receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on
conviction for a terrorism offence or an offence under section 467.11, 467.12 or 467.13, the court shall order
that the portion of the sentence that must be served before the offender may be released on full parole is
one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the
circumstances of the commission of the offence and the character and circumstances of the offender, that
the expression of society’s denunciation of the offence and the objectives of specific and general deterrence
would be adequately served by a period of parole ineligibility determined in accordance with the Corrections
and Conditional Release Act.
Principles that are to guide the court
(2) For greater certainty, the paramount principles which are to guide the court under this section
are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases,
being subordinate to these paramount principles.

Section 745.2 – Recommendation by jury. Subject to section 745.3, where a jury finds an accused guilty
of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the
following question:
You have found the accused guilty of second degree murder and the law requires that I now
pronounce a sentence of imprisonment for life against the accused. Do you wish to make any
recommendation with respect to the number of years that the accused must serve before the
accused is eligible for release on parole? You are not required to make any recommendation but if
you do, your recommendation will be considered by me when I am determining whether I should
substitute for the ten year period, which the law would otherwise require the accused to serve
before the accused is eligible to be considered for release on parole, a number of years that is
more than ten but not more than twenty-five.

R v Zinck – SCC considered circumstances in which delayed parole should be invoked. Delayed parole
must be used in a manner that is fair to the offender. The sentencing judge must engage in a double
weighing exercise.
PROCEDURE
(1) First they must evaluate the facts of the case in light of the factors set out in section 718 of the Code in
order to impose the appropriate sentence. The issue of parole eligibility is not considered at this stage.
(2) The sentencing judge must then review the same facts primarily from the perspective of the
requirements of deterrence and denunciation, which are given priority at this stage. The prosecution has the
burden of demonstrating that the additional punishment of increased parole ineligibility is required.
The offender must be allowed to make submissions and introduce additional evidence in response to the
request for delayed parole. Courts should be generous if adjournments are requested for this purpose.
Written reasons must be given at the end of the process. The reasons must state with sufficient clarity the
reasons for the delayed parole order.
APPEAL AND REVIEW

APPEALS OF FINAL DECISIONS AND JUDICIAL REVIEW OF INTERIM DECISIONS

⁃ Final verdicts can be appealed.
⁃ Interim decisions cannot be appealed.
o Interim decisions can be the subject of judicial review applications where jurisdictional errors occur.
o Judicial review may be necessary to challenge preliminary inquiry results, to seek or quash
publication bans, or to suppress or access third party records; in these cases if we wait
until the end of the trial, the damage sought to be prevented may have already occurred,
hence the judicial review application.
⁃ In the case of appeals, different grounds of appeal and procedural routes apply, depending on whether
an offence has been prosecuted summarily or indictably.
Appeals
⁃ Section 674 – Only appeals authorized in Parts XXI and XXCI can be brought with regard to indictable
offences.
Indictable offences
⁃ Appeals by the Accused:
o Bases upon which appeals can be made - Section 675(1)(a) – A person can appeal a conviction
based on a question of law alone (with leave from the court of appeal), on a question of
fact, on a mixed question of law and fact, or on any ground of appeal “that appears to the
court of appeal to be a sufficient ground of appeal”.
o Bases upon which appeal can be granted – Section 686(1)(a) – (i) the verdict should be set
aside on the ground that it is unreasonable or cannot be supported by evidence; (ii) the
judgement of the trial court should set aside on the ground of wrong decision on a
 question of law; or (iii) on any ground that there was a miscarriage of justice.
o Grounds which the court of appeal can dismiss an appeal – Section 686(1)(b) – If none of the
above grounds are made out; (i) although there was an error, the accused “was properly
convicted on another count or part of the indictment”.
o Section 686(b) - Appeal might be dismissed despite an error (iii) “curative proviso” -
notwithstanding that the court is of the opinion that on any ground mentioned in
subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the
opinion that no substantial wrong or miscarriage of justice has occurred, or (iv)
notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the
class of offence of which the appellant was convicted and the court of appeal is of the
opinion that the appellant suffered no prejudice thereby. Rules governing appeals that
permits an appeal to be dismissed despite the presence of a legal error at trial, if it
is found that the error is harmless and does not cause a miscarriage of justice.
⁃ (1) Appeals based on an error relating to question of fact or mixed fact and law must result in an
unreasonable verdict or miscarriage of justice.
⁃ (2) Appeals based on questions of law has a broader meaning in s. 675 than s. 686. S. 686 “question of
law” may be treated as a question of mixed law and fact.
⁃ (3) Even if an appeal meets the conditions of s. 686(1)(a), it may not be granted nonetheless.
⁃ The ‘curative proviso’ and s. 686(1)(b)(iv) = not all errors of law will lead to a successful appeal.
⁃ Only an error of law under s. 686(1)(a)(ii) could be saved by the curative proviso in s. 686(1)(b)(ii).
⁃ If an appeal is granted under s. 686(1)(a) – then the court of appeal quashes the conviction. Can either
acquit the accused or order a new trial.
⁃ If the appeal is dismissed on the basis that the accused was properly convicted on some part, then the
appeal court can substitute a verdict, affirm the sentence, impose a new sentence, or remit the
matter back to the trial court for sentencing (s. 686 (2) & (3)).
⁃ Section 686(1) (c) & (d) – the appeal court can hear appeals relating to findings that an accused was unfit
to stand trial, that an accused was not criminally responsible by reason of mental disorder, or with
regard to special verdicts.
⁃ Section 687 – a court of appeal can vary a sentence imposed on an accused.

⁃ Standard of Review – Housen v Nikolaisen:

o Pure questions of law – s. o. r. is correctness, and an appellate court can substitute its opinion for
that of the trial judge.
o Question of fact - higher standard. A finding of fact should not be overturned in the absence of a
“palpable and overriding error”, which amounts to “prohibiting an appellate court from
reviewing a trial judge’s decision if there was some evidence upon which he or she could
have relied to reach that conclusion.
⁃ Unreasonable Verdicts- the standard for assessing whether a verdict is unreasonable is “whether the
verdict is one that a properly instructed jury acting judicially, could have reasonably rendered” (R v
Yebes).

⁃ Errors of Law and Miscarriages of Justice – There is no requirement that the verdict was not
supportable on the evidence. An error of law is “any decision that was an erroneous interpretation
or application of the law (R v Khan). A miscarriage of justice can be either substantive or
procedural. Any error that deprives an accused of a fair trial is a legal error (Fanjoy v The Queen).
Miscarriage of justice can be matters of mixed law and fact.
⁃ The “Curative Proviso” – S. 686(1)(b)(iii) TEST requires that there is a “reasonable possibility that the
verdict would have been different had the error not been made (Khan). To satisfy :
o (1) can show the error is harmless in itself, thus no prejudice to the accused;
o (2) show evidence against the accused is so overwhelming that even if the appeal was granted and
a retrial ordered, the result would inevitably be a conviction  the provision should only
 be applied if conviction would be “inevitable” or “invariable” (S.(P.L.)) or that the result
would “necessarily” have been the same (B.(F.F.)).

⁃ Procedural Irregularities – s.686(1)(b)(iv) If the procedural irregularity was previously classified as an

irregularity causing a loss of jurisdiction, this section provides that this is no longer fatal to the
conviction and an analysis of prejudice must be undertaken in accordance with the principles in s.
686(1)(b)(iii).

⁃ Appeals by the Crown – Section 676(1)(a) - “any ground of appeal that involves a question of law
alone”. This right specifically applies in this section to verdicts of acquittal or of not criminally
responsible on account of mental disorder.
⁃ Section 676(1)(b)&(c) – allows appeals of most decisions that could bring an end to a prosecution, such
as an order of a superior court of criminal jurisdiction that quashes an indictment or fails to exercise
jurisdiction on an indictment, and an order of a trial court that stays proceedings or quashes an
indictment.
⁃ Section 676(1)(d) – the Crown can appeal an accused’s sentence with leave.
o The Crown is required to satisfy the court that the verdict would not necessarily have been the
same had the errors not occurred, and the Crown has a heavy onus in doing so (R v
Sutton).
⁃ Ways in which treatment of evidence can be a question of law – (1) a question of law could concern
the legal effect of undisputed facts; (2) misdirection as to the evidence can be a question of law, but
only in limited circumstances; (3) it is an error of law for a trial judge to instruct a jury to consider
individual pieces of evidence separately to decide whether they constitute proof BARD.
⁃ If Court of Appeal grants an appeal from an acquittal in a trial by judge alone , it can – (i) order a new trial;
(ii) enter a conviction. If trial by judge and jury – only option, order a new trial.

⁃ Statutory Powers on Appeal:

⁃ Section 683 – A court of appeal can order exhibits or other items produced, hear witnesses or admit an
examination of a witness, and refer questions to a special commissioner. An appeal court can also
amend the indictment where the accused has not been misled or prejudiced.
⁃ Section 684 – A court of appeal can assign counsel for an accused.
⁃ Section 679 – A court of appeal can order an accused released pending an appeal.
⁃ Section 688 – An appeal court can order that an accused in custody can only appear by electronic
means.
⁃
⁃ Fresh Evidence on Appeal:
⁃ R v Palmer - Fresh evidence may be introduced on appeal. Guidelines:
o (1) The evidence should not be admitted if could have been adduced at trial by due diligence;
o (2) The evidence must be relevant, it bears upon a decisive or potentially decisive issue in trial;
o (3) The evidence must be credible (reasonably capable of belief); and
o (4) Must be that, if believed, with other evidence at trial, could affect the result.
⁃ Note – the evidence sought to be introduced must have been capable of admission at the initial trial –
hearsay or opinion evidence that would not have been admissible at trial is no more admissible on
appeal (R v Assoun).
Summary Offences
⁃ Summary conviction appeals are taken to the province’s superior court of criminal jurisdiction; not the
court of appeal.
⁃ Section 813 – What Can Be Appealed a defendant can appeal a conviction or order made against her,
and the Crown can appeal “an order that stays proceedings on an information or dismisses an
information”. Both parties may appeal sentences, verdicts of not criminally responsible, and fitness
to stand trial decisions.
⁃ Section 822(1) – incorporates most of ss. 683-689 by reference. All of the rules in s. 686(1) that concern
appeals from convictions or acquittals are equally applicable to summary conviction offences.
⁃ Section 816 – bail pending a summary conviction appeal can be granted.
⁃ Section 822(4) – it is possible for an appeal of a summary conviction matter to take place by a trial de
novo.
⁃ Section 829-838 – create alternative methods of appeal by either party,
o on erroneous point of law,
o excess of jurisdiction, or
o a refusal or failure to exercise jurisdiction.
⁃ Grounds which an appeal could be launched are under s. 813.
⁃ Section 836 – a Defendant is only permitted to opt for one of the two methods of appeal.
⁃ Section 830 – appeals under this section can be brought either on a transcript or an agreed statement of
facts.
⁃ the Code permits a potential 2nd level of appeal from summary conviction matters to the court of appeal –
such an appeal depends on leave of the court and can be brought only on a question of law (s.
839).

Appeals to the SCC:

⁃ Section 691 - 695 – create a right to appeal decisions of a court of appeal regarding indictable offences
to the SCC.
⁃ Appeal to SCC can only be on question of law.
⁃ It is possible to bring an appeal to the SCC based on whether the court of appeal ought to have allowed
the appeal (Yebes).
⁃ Whether the court of appeal has made a correct decision in applying the curative proviso is a question of
law; thus appealable to the SCC (R v Mahoney).
⁃ Appeal only permitted (for Crown or accused) – (i) where a judge of the court of appeal dissents on a
question of law; (ii) where the SCC gives leave to appeal a question of law.
⁃ If accused was acquitted at trial but that acquittal was replaced with a conviction on appeal – the accused
can appeal on any question of law; whether there was a dissent in the court of appeal or not (ss.
691(1),(2) & 693).
⁃ Section 694.1 and 695 – The SCC has the power to appoint counsel for an accused and has the power
to make any order that the court of appeal could have made.

Judicial Review (Exemplified in the context of preliminary inquiries)

⁃ Decision to commit or discharge at a preliminary inquiry can only be reviewed on the basis of an action
for certiorari.
⁃ It is open to the Crown to seek certiorari in the case of discharge.
⁃ Section 577 – The Crown has a simpler option of preferring a direct indictment despite the discharge, so
more frequently certiorari applications involve an accused seeking review of a decision to commit.
⁃ Certiorari is only granted if the judge has fallen into jurisdictional error.
o Erroneously excluding evidence, unlikely a jurisdictional error – unless rises to level of denial of
natural justice (Dubois).
⁃ If trial judge fails to comply with a mandatory provision of the Code it is a jurisdictional error.
⁃ Section 548 – requires a judge to commit the accused for trial if “there is sufficient evidence”. It also
requires a preliminary inquiry judge to discharge the accused if “on the whole of the evidence no
sufficient case is made out”.
⁃ Sazant – the accused had been discharged at the preliminary inquiry on a charge of sexual assault.
Preliminary inquiry judge said that there was absolutely no evidence of non-consent. Complainant
had testified he did not want to partake in the sexual activity. Held - The judge had made a
jurisdictional error.