Category: articles

Patrick J Ducharme

The accused is often required to proceed with a judicial interim release hearing knowing very little about the specific allegations that form the basis of the charge(s). The reason for this is that disclosure of that information to the accused, now required as of right at or near the time when the accused will enter his plea, is often not available in any completed form at the time of the bail hearing.
The evidence provided at the bail hearing is often provided by an officer who did not participate personally in the investigation of the offence(s). The testifying officer is usually an officer who may have spoken to the investigating officers but may not even have their reports at the time the testimony is presented to the presiding Justice. This second-hand version of the evidence is often less accurate and less detailed than the evidence presented at trial.
Continue reading “Disclosure Problems”

Patrick Ducharme

The judicial interim release hearing is the first opportunity for counsel to gather facts, assess the evidence, and examine conflicting theories of the case. This is an important part of the trial process. Mistakes made at this hearing may linger to the end of the trial and have negative impact on the trial. Counsel for the accused should not conduct a bail hearing without proper disclosure. It may be that full disclosure is not available to either the defence or the prosecution at the time of the bail hearing. However, whatever disclosure is available should be obtained and reviewed prior to beginning the hearing.
Continue reading “The Importance of Timely Disclosure”

Patrick Ducharme

There is one exception in the amendments to the concept of restraint in bail. Persons alleged to have committed an act or acts of domestic violence, and have also been previously convicted of an offence or offences against an “intimate partner”, must overcome a reverse onus, requiring the accused to demonstrate why he should not be detained in custody.
Continue reading “One Notable Exception to Restraint: Domestic Violence”

Patrick J Ducharme

Another closely related principle of restraint in bail is the “ladder principle.” The Supreme Court of Canada in R. v. Antic1 expressed in clear terms that, except for a limited number of exceptions, an unconditional release of the accused on an undertaking, the most lenient form of release, is the default position when granting release. Other more onerous forms of release are to be imposed according to the ladder principle: a principle that is to be followed assiduously. Presiding Justices are instructed by the Supreme Court of Canada to consider all forms of bail beginning with the least onerous type of release and only moving to the next more stringent form of release if the lesser stringent release can be rejected on reasonable grounds. Consequently, release of the accused, at the earliest reasonable opportunity and on the least onerous grounds, is the principle that should guide the police, prosecutors, and the court.
Continue reading “The Ladder Principle”

Patrick Ducharme

Recent criminal law amendments relating to bail are significant. Chief among them is the philosophy behind the new judicial interim release legislation.

The primary considerations are for the presiding Justices hearing bail cases. New provisions instruct them to provide the accused with the earliest reasonable release on the least restrictive conditions.
Continue reading “Judicial Interim Release or Bail – Amendments to Bail in 2019”

Patrick Ducharme

Private prosecutions are governed by a pre-charge stage in which a provincial court Judge or designated Justice of the peace decide whether prosecution is merited. In contrast to public prosecutions, initiated pursuant to section 507 of the Code, where the allegations are heard ex-parte and in camera, private prosecutions require a judicial officer to conduct a “hearing” to determine whether a case for issuing a summons or warrant for the arrest of the accused is warranted after the judicial officer has heard and considered the allegations of the informant and the evidence of witnesses.1 The Attorney General may appear at the hearing without being deemed to intervene in the proceedings.2 If the Judge or Justice does not issue a summons or warrant, the information is endorsed, and, unless the informant, not later than six months after the endorsement, commences proceedings to compel the Judge or Justice to issue a summons or warrant the information is deemed never to have been laid.
Continue reading “Summary (of Arraignments and Pleas)”

Patrick J Ducharme

Any member of the trial court may hear and determine the case even if another member of that court has recorded the plea, as long as no evidence has been adduced. It is therefore the introduction of some evidence after plea that causes a Judge to be seized of the matter; Section 669.1
Continue reading “How Judges Become Seized of Cases”

Patrick Ducharme

Section 2 of the Code demonstrates that a company is capable of being charged and convicted of a crime. The section refers to “everyone” as including an organization, and an organization includes a company. If the act complained of can be treated as that of the company, the corporation is criminally responsible for all such acts as it is capable of committing and for which the prescribed punishment is one that it can be made to endure.
Continue reading “Appearance by Organizations (Corporations)”

Patrick Ducharme

If an accused does not appear for a summary conviction trial, the presiding Judge may proceed in the absence of the accused, on an ex-parte trial
Continue reading “Section 795 Incorporates s. 650 for Summary Conviction Matters”

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”