Category: articles

Patrick J Ducharme

R. v. Garofoli1 provides an example of a circumstance where the accused voluntarily absented himself during the trial. The accused argued on appeal that the Judge erred in finding that Garofoli had absconded during the trial. On Monday, April 7, 1986, the trial Judge ruled that private communications were intercepted pursuant to authorizations that, on their face, were lawfully made, and hence were admissible.
The following morning (April 8, 1986) when the court opened at 10:15 a.m., Garofoli was not present. The court adjourned briefly to enable his counsel to make inquiries. The jury was not present at this time and remained out of court during the entire proceedings relating to his absence.
Continue reading “Trial May Proceed in Absence of the Accused 475”

Patrick Ducharme

Section 620 provides that every organization against which an indictment is filed shall appear and plead by counsel or agent. Where an organization appears and pleads to an indictment or a plea of not guilty is entered by order of the court under section 622, the court shall proceed with the trial of the indictment and, where the organization is convicted, section 735 provides the available penalties.
Continue reading “Organizations (Corporations)”

Patrick Ducharme

Section 607 of the Code provides for the following special pleas:

(a) autrefois acquit;

(b) autrefois convict; and

(c) pardon.

Autrefois Acquit is a plea made by the accused that he has formally been tried and acquitted of the same charge that he is presently facing. An acquittal on the same charge amounts to a bar to further proceedings. The plea is based on the concept that no person should be subjected to defending himself on the same offence more than once, thereby causing him to be in jeopardy of conviction again when he has been previously acquitted.
Continue reading “The Special Pleas Available in Canada”

Patrick J Ducharme

A Judge is expected to conduct an inquiry to determine that a guilty plea is voluntary. Subsection 606(1.1) provides the conditions for accepting a guilty plea. A court may accept a plea of guilty only if it is satisfied that the accused is making the plea voluntarily and understands that the plea is an admission of the essential elements of the offence; understands the nature and consequences of the plea and that the court is not bound by any agreement made between the accused and the prosecutor. Subsection 606(1.2) provides, however, that the failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
606(1.1): A court may accept a plea of guilty only if it is satisfied that the accused
Continue reading “Plea Comprehension Scheme”

Patrick Ducharme

This plea joins issue with the prosecution on every essential element that must be proven by the prosecution. It places the prosecution in a position where the prosecution must prove the essential elements of the charge(s) beyond reasonable doubt. A plea of “not guilty” embraces all defences.
Continue reading “Plea of Not Guilty”

Patrick Ducharme

Statistically, a majority of criminal cases are resolved by a plea of guilty by the accused to the offence charged or some other lesser offence. A plea of guilty amounts to a formal admission of all of the essential elements of the offence to which the accused pleads guilty. A plea of guilty must be an admission by the accused of all the essential legal ingredients necessary to constitute the crime. The admission dispenses with the necessity of proof of each essential element of the offence charged. A plea of guilty must be entered in a free and voluntary way by the accused, and, be untainted by threats or promises to induce the accused to admit that he committed an offence when, in fact, he does not admit the offence.
Continue reading “Guilty Pleas”

Patrick J Ducharme

A plea is taken to each charge individually. The usual pleas to the charges are ‘guilty’ or ‘not guilty’. The accused is also able to enter any of the special pleas authorized in Part XX of the Criminal Code.

In special circumstances the accused may be allowed to enter one of the special pleas of autrefois convict or acquit, or, pardon. Subsection 606(4) also allows an accused to plead not guilty to the offence charged, but guilty to an included offence or any other offence arising out of the same transaction, however to do so the consent of the prosecutor is necessary.
Continue reading “Pleas”

Patrick Ducharme

The arraignment of the accused refers to calling the accused before the court, formally reading the charges in the information or indictment to the accused, and asking the accused how she pleads to the charge(s). The primary purpose of the arraignment is to ensure that the accused is aware of the charges before the court. This marks the beginning of the trial.
Continue reading “Arraignments”

Patrick Ducharme

The police do not have the power to arrest an accused for a summary conviction offence by virtue of subsection 495(2) unless the arrest is necessary to establish the person’s identity. A police officer requests that the person he finds committing such an offence identify himself. This request is within the execution of his duty. The accused’s refusal to accede to the request may constitute an offence of obstructing police under section 129.
Continue reading “Arrest to Establish Identity”