Author: Patrick Ducharme

Applications for Stay of Proceedings Based on ss. 11(b) of the Charter

On July 8, 2016, the Supreme Court of Canada decided that the framework for deciding delay in criminal cases outlined previously by the court in R. v. Morin1 had caused doctrinal and practical problems contributing to a culture of delay and complacency rather than ameliorating delay. In a 5-4 decision the majority decided in R. v. Jordan2 and R. v. Williamson3 that in the future a subsection 11(b) analysis of delay should encourage all participants in the criminal Justice system to cooperate in achieving the important objectives of the provision.
To assist in removing the culture of delay and complacency toward speedy trials, the majority decided on a new framework for analyzing delay that includes a presumptive ceiling beyond which delay – from the charge to the actual or anticipated end of the trial – is presumed to be unreasonable, unless exceptional circumstances exist justifying it. The presumptive ceiling is eighteen months for cases tried in the provincial court, and, thirty months for cases in the Superior Court, including cases tried in the provincial court after a preliminary inquiry.

Continue reading “The New Approach to Delay Applications”

Proceeding with an indictable offence is not usually limited by the passage of time. There are some indictable offences that prescribe statutory limitations. The offence of treason is a good example. Section 48 of the Code prohibits proceeding against an accused person on the charge of treason beyond three years from the time when the offence is alleged to have been committed. With most indictable offences, however, there is no limitation period.

Continue reading “Limitation Periods”

When a person is convicted or is discharged on the conditions prescribed in a probation order pursuant to a suspended sentence (s. 731) or probation pursuant to a conditional discharge (s. 730) for certain specified sexual offences outlined in section 161 of the Code related to a victim who is under the age of sixteen years, in addition to any other “punishment” that may be imposed the court may order that the accused not attend near certain public places and other facilities where persons under 16 years of age may be present.
Continue reading “Section 161 Orders of Prohibition”

Section 810 of the Code provides that a Justice or summary court may receive an information laid by a private citizen who fears on reasonable grounds that another person will cause personal injury to him or to his spouse or common-law partner or child or will damage his property. If a Justice is satisfied by the evidence adduced that the person has reasonable grounds for his fears, the Justice may:

(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.
Section 810 aims to prevent harm but does not create an offence. A person subject to an application for a peace bond must have a full opportunity to be heard.1 The onus of proof is upon the applicant on a balance of probability. It is not a trial, it is a hearing.
The Justice also has the power to include conditions on the recognizance that prohibit the defendant 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, where the Justice or summary court decides that it is desirable to add such a condition.
When 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.
Continue reading “Section 810 Recognizances”

Section 507.1 provides that a Justice may receive an information laid under section 504 by a private citizen and shall refer it to a provincial court Judge or a designated Justice to consider whether to compel the appearance of the accused on the information. The Judge or designated Justice to whom an information is referred then considers the case, determines if a case has been made out, meaning that there is some merit to the allegation, issues a summons or warrant for the arrest of the accused to compel him to attend before a Justice and answer to the charge. The receiving of an information is a ministerial act. The issuing of process is a judicial act.

Continue reading “Privately Laid Informations: Private Prosecutions”

If an accused believes an indictment does not provide sufficient detail to allow him to know the charge against him, he may move for particulars under section 587 of the Code. The applicant must convince the court that particulars are “necessary for a fair trial”.
Particulars are intended to supplement an indictment that is not sufficiently informative to ensure a fair trial. Particulars may be ordered by a trial Judge, but not by a Justice presiding at a preliminary inquiry. Particulars ordered on essential elements of the offence pursuant to section 587 become part of the charge itself and must be proved by the Crown.

Continue reading “Particulars”

An objection to an indictment or to a count in an indictment for a defect apparent on the face of it, must be taken by motion to quash the indictment or count before the accused has pleaded and thereafter only by leave of the court. The court that receives the objection may, if it considers it necessary, order the indictment or count to be amended to cure the defect.1 When a count in an information or indictment is so deficient that the court quashes it, the order may, in effect, end the prosecution. It may end because the limitation period for prosecuting the offence has expired, or, because further prosecution may be stayed as an abuse of process pursuant to section 7 of the Charter, or, based on unreasonable delay pursuant to section 11(b) of the Charter.

Continue reading “Amendments”

Unfortunately case law authority sometimes confuses what should be a fundamental difference between a count that violates the single transaction rule and a count that violates the duplicity rule. The single transaction rule has, at its base, a consideration of the factual circumstances that underpin the allegation contained in the count. The duplicity rule, in contrast, is concerned with the legal circumstances of the count. If the count is objectionable because it contains two separate and distinct legal allegations or charges, then the objection is framed in a manner that invokes the duplicity rule. If the count is seen to be objectionable based on the facts that underpin the count in the indictment, then the objection invokes the single transaction rule.

Continue reading “Single Transaction Rule vs. Duplicity”

Duplicity refers to the technical fault in drafting a charge that unites more than a single offence in one count. Counts or charges in an information or indictment breaching the rule prohibiting duplicity will be seen as alleging more than one or perhaps even multiple offences in a single count. Amendments pursuant to section 601 usually erase the problem by breaking a single count into two or more counts, each alleging a singular offence.

Continue reading “Duplicity”

Section 581 provides the rules governing the drafting of charges. The rules are designed to ensure, at minimum, an accused knows the offence(s) and is informed sufficiently to be able to respond to the charge(s).

Each count in an indictment or information shall in general apply to a single transaction and contain a statement that the accused committed the specified (indictable) offence.1 The count must contain sufficient detail of the circumstances of the alleged offence to provide reasonable information of the act or omission to be proved and to identify the transaction.

Continue reading “Single Transaction Rule”