Patrick J Ducharme

Patrick Ducharme

For purposes of challenging an order of committal for trial, it is necessary to know when the possibility of challenge has ended. For this reason a court is sometimes required to determine when the actual moment of preferment takes place. For the purposes of ending possible challenges and proceeding to trial in the Superior Court, our courts have interpreted preferment to take place when the indictment is lodged with the trial court and the trial is ready to proceed. The definition of when an indictment is “preferred” comes from R. v. Chabot1. The distinction is important because once an indictment has been preferred, any challenge to the proceedings, such as a motion to quash the order to stand trial made following a preliminary hearing, can no longer proceed.
Continue reading “When the Indictment is Preferred”

Patrick Ducharme

In circumstances where the accused has not had the opportunity to request a preliminary hearing, or, a preliminary hearing has commenced but has not been concluded, or, a preliminary hearing has completed but the accused has been discharged, the prosecutor may only prefer an indictment by obtaining the consent of the Attorney General or the Deputy Attorney General. In the rare instances where a case is prosecuted by someone other than the Crown, referred to as a private prosecution, the written consent of a Judge of the Superior Court is required to proceed.1 The indictment is considered to be direct in the sense that the accused proceeds directly to the Superior Court without the benefit of a preliminary hearing.
Continue reading “Direct Indictments”

Patrick J Ducharme

An indictment is not a sworn document, but is signed by the prosecutor who prefers the indictment. The act of preferring an indictment is the act of presenting the indictment to the court. This act of preferring an indictment is considered complete when the document is before the court and the matter is ready to proceed to trial.
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Patrick Ducharme

The charging document used in the Superior Courts of Canada is an “indictment”. The charging document used in the Provincial Courts of Canada is an “information.” Both refer to the official document upon which the charge or charges are written.
Continue reading “Charging Documents”

Patrick Ducharme

Types of Offences
Types of Proceedings

There are three types of offences: summary conviction, indictable, and dual or hybrid offences.

Indictable Offences
Indictable offences are more serious. They permit the imposition of greater sentences. Section 743 of the Code provides a maximum of five years imprisonment if the penalty for an indictable offence is not otherwise specified. Any sentence of two years or more will be served in a Federal penitentiary.1 Sentences of one day less than two years and lower are served in Provincial prisons. There is seldom a statutory limitation period for indictable offences. Indictable offences are divided into three categories:
Continue reading “Types of Offences – Types of Proceedings”

Patrick J Ducharme

As can be seen from these onerous responsibilities, the trial lawyer has a much bigger responsibility than simply representing a client against charges brought by the government in the criminal law setting. These responsibilities are as onerous as those required of the prosecutor. They flow from the fact that every criminal defence counsel has a duty to both the client and the court.
Continue reading “Onerous responsibilities for the trial lawyer”

Patrick Ducharme

While the standard of a lawyer’s assistance of any client can never be expected to provide a standard of perfection, the lawyer still must be both candid and honest in every aspect of advising the client. In addition, the lawyer has special duties owed to the client because of the nature of trial work. These duties include:
Continue reading “Special duties owed to the client”

Patrick Ducharme

Here are some of the specific rules that defence lawyers working in criminal law and conducting criminal trials are obligated to know and follow. Each lawyer should be aware of these duties that he has to the client, and, to the court, and, to the legal system at large:
A duty to his client to be competent, and, to perform the legal services for which he/she was hired–conscientiously, diligently, and, in an efficient manner, so as to provide quality of service equal to that level that generally would be expected of a competent lawyer in a similar situation;
Continue reading “Specific Rules for Defence Lawyers”

Patrick J Ducharme

Groia v. Law Society of Ontario:

After the trial the Law Society of Upper Canada (now the Law Society of Ontario) launched disciplinary proceedings against Groia, on its own motion, alleging that he was guilty of professional misconduct based on his uncivil behaviour during the trial. A three-member panel of the Law Society found Groia guilty of professional misconduct. They ordered that his license to practice law be suspended for two months and ordered him to pay nearly $250,000 in costs.
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Patrick Ducharme

The Role of Defence Counsel
The Lawyer as Advocate

In Canada, Provincial legislatures have given Provincial law societies the power to govern the lawyers in their jurisdiction, including the responsibility of maintaining standards of professional conduct, and, of disciplining lawyers who fail to meet those standards. In general terms every lawyer must discharge his or her duties to a client, the court, members of the public, and fellow members of the profession with integrity. Each law society in Canada embraces the proposition that integrity is the fundamental quality of any person who seeks to practice as a member of the legal profession. Continue reading “The Role of Defence Counsel: The Lawyer as Advocate”