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.
An information charging a Code hybrid offence that is laid more than six months after the alleged offence occurred is not invalidated by the Crown mistakenly making an election to proceed summarily. Nor is the Crown precluded from re-electing to proceed by indictment once that error is discovered unless the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency.
The Crown’s discretion to proceed by indictment has been found to be constitutionally sound and not subject to appeal.3 A trial court, however, has the power to stay proceedings to prevent the abuse of a court’s process through oppressive or vexatious proceedings where compelling an accused to stand trial would violate those principles of fundamental justice which underlie the community sense of fair play and decency.4 A trial court also has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where an exclusionary rule to safeguard against the injustice does not exist.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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