Continued from Part 1
Offences are classified by statute either as indictable or summary conviction, or those that may be prosecuted either by indictment or summary conviction at the election of the prosecutor. We also have offences that are classified as strict liability offences or absolute liability offences. Most provincial offences are classified as strict or absolute liability offences. The Supreme Court of Canada in Wholesale Travel4 determined that it is appropriate that there be a requirement that the defence prove due diligence by a preponderance of evidence for strict liability offences where the act underlying the offence is proven by the prosecutor. The same decision held that a corporation cannot use s. 7 of the Charter to protect corporate “rights”, however, it is always available to challenge an unfair law.
Public welfare or regulatory offences are generally classified as strict liability offences. While we have very few “absolute liability” offences, absolute liability offences provide for vicarious liability in circumstances where an employer or corporation is held responsible for the fault of its employees or servants, even though the employer or corporation is not directly at fault.
A concurrent trial of summary conviction and indictable offences contained within the same information is now permitted. In Clunas5 the court permitted joinder of separate informations involving summary conviction and indictable offences arising from related matters. It appears, however, that the accused can elect trial by higher court if he wishes to avoid such joinder.
Indictable offences referred to in section 469 are not electable by either the prosecutor or accused and require a preliminary inquiry, unless the accused is indicted directly.6 The trial will be before a Judge and jury on indictment at the Superior Court level. Section 473 does, however, permit a waiver of a jury trial with the agreement of both the prosecutor and the accused.
Section 553 offences are tried without a preliminary inquiry and before a Judge of the Provincial Court. Although classified as indictable offences, section 553 offences do not provide the same protections offered by other indictable offences not listed in that section. The trial of section 553 offences is therefore in the form of a summary trial. All of the remaining indictable offences, that is, those not listed in section 469, or section 553, permit the accused an opportunity to select the mode of trial. The possible selections are: Judge of the Provincial Court, Judge of the Superior Court or, Judge of the Superior Court, with a jury.
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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