If two or more persons are jointly charged on an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the Justice may decline to record any election, re-election or deemed election for trial by a provincial court Judge or a Judge without a jury. The accused is deemed to have elected to be tried by a court composed of a Judge and jury if the provincial court Judge declines to record the accused’s election pursuant to section 567.
The accused may want to re-elect the mode of his/her trial. Section 561 of the Code is the section that permits an accused to make a re-election depending upon the timing of the decision to re-elect. Section 561 of the Code provides the procedure to follow when an accused wishes to change her election or deemed election as to the mode of trial. Here are the possibilities:
if the original election is a forum other than before a provincial court Judge, the consent of the Crown is required to re-elect to have a trial in provincial court; (1)(a);
Certain offences require the consent of the Attorney General of a Province before proceedings may be instituted. For example, the charge of “nudity in a public place” requires the consent of the Attorney General before proceedings may be instituted pursuant to subsection 174(3) of the Code. As we have seen in the section related to re-elections, in some circumstances, the Crown’s consent is required to re-elect1 or to have a trial by Judge alone where, absent the consent, the trial would be before a Judge and jury. Requiring the Crown’s consent to re-election has withstood Charter scrutiny. The Crown’s decision as to whether or not to give consent is not, however, immune from judicial scrutiny. It may be examined for abuse of process in very limited circumstances.
For summary conviction matters, the defendant may appear personally, or by counsel, or by agent.1 Trial Judges, in the exercise of their power to control proceedings before them, may refuse to permit an accused to be represented by an agent in summary conviction court whenever it is necessary to do so to protect the proper administration of justice. Agents are now limited by section 802.1.
Organizations cannot appear personally in court, so the Code provides in subsection 556(1) that an organization, which includes a corporation, may appear by counsel or agent, and, if it fails to do so, and it is proved that a summons was served properly on the organization, the Judge may either conduct an ex parte trial or a preliminary inquiry depending on the nature of the charge.
Continue reading “Absence or Failure to Appear by Organizations (Corporations)”
Anyone, including private citizens, who, on reasonable grounds, believe that a person has committed an indictable offence, may lay an information in writing and under oath before a Justice and the Justice shall receive the Information. The vast majority of Informations are laid, however, by police officers using section 507 of the Code. The Justice receives an information from a peace officer or other agent of the Attorney General, and, where the Justice considers that a case for doing so is made out, the Justice issues a summons or a warrant for the arrest of the accused to compel the accused to attend before court. This hearing under subsection 507(1) is ex parte and in camera. Transcripts of the proceedings before the Justice can be provided to an accused after proceedings begin.
The initial appearance or “arraignment” may be before a Justice or a provincial court Judge. The purpose of the arraignment is to formally present the allegations to the accused. The accused is usually called forward to stand before the Judge, the charge or charges are read to him and he is asked if he is prepared to enter a plea to the charge(s). Before a jury is empanelled, or in the case of a trial by Judge alone, before the case may begin, an accused must be arraigned.
Continue reading “Arraignments and Appearances”
There is a residual discretion in a trial court Judge to stay proceedings when compelling an accused to stand trial would violate those fundamental principles of Justice that underlie the community’s sense of fair play and decency, and to prevent an abuse of the court’s process through oppressive or vexatious proceedings.6 It is a power, however, of special application that can only be exercised in the clearest of cases.7 An example of a potentially successful application would be a finding by the court that delay, caused by the actions of the Crown, was for an ulterior motive, such as, depriving the accused the opportunity to make full answer and defence.
Continue reading “Statutory Limitations (Part 2)”
Summary conviction proceedings generally cannot be instituted more than six months after the time when the subject matter of the proceedings arose, unless otherwise expressly provided by statute. On occasion, the subject matter may be found by a court to have continued or partially taken place within this six-month period thereby allowing a court to proceed to consider the portion that is within the limitation period. Further, subsection 786(2) provides that summary conviction proceedings may be instituted after the time limitation has elapsed if both the Crown and the accused agree. Waiver of the limitation period is sometimes agreed to by the defendant in order to accept an offer to plead guilty to a lesser charge that would otherwise be statute-barred.
Continue reading “Statutory Limitations”
(…continued from part 3…)
The final factor, and arguably the most important factor to be considered, is prejudice to the accused. Prejudice may be inferred simply from the length of the delay. The longer the delay, the more likely an inference of unreasonable delay will be drawn. In circumstances where prejudice is not found or inferred, the basis for a remedy of the accused’s rights under 11(b) is seriously undermined. Inferred prejudice, however, is seldom sufficient alone. Actual prejudice is far more powerful to fuel a subsection 11(b) argument.
