Organizations cannot appear personally in court, so the Code provides in subsection 556(1) that an organization, which includes a corporation, may appear by counsel or agent, and, if it fails to do so, and it is proved that a summons was served properly on the organization, the Judge may either conduct an ex parte trial or a preliminary inquiry depending on the nature of the charge.
Continue reading “Absence or Failure to Appear by Organizations (Corporations)”
Anyone, including private citizens, who, on reasonable grounds, believe that a person has committed an indictable offence, may lay an information in writing and under oath before a Justice and the Justice shall receive the Information. The vast majority of Informations are laid, however, by police officers using section 507 of the Code. The Justice receives an information from a peace officer or other agent of the Attorney General, and, where the Justice considers that a case for doing so is made out, the Justice issues a summons or a warrant for the arrest of the accused to compel the accused to attend before court. This hearing under subsection 507(1) is ex parte and in camera. Transcripts of the proceedings before the Justice can be provided to an accused after proceedings begin.
The initial appearance or “arraignment” may be before a Justice or a provincial court Judge. The purpose of the arraignment is to formally present the allegations to the accused. The accused is usually called forward to stand before the Judge, the charge or charges are read to him and he is asked if he is prepared to enter a plea to the charge(s). Before a jury is empanelled, or in the case of a trial by Judge alone, before the case may begin, an accused must be arraigned.
Continue reading “Arraignments and Appearances”
There is a residual discretion in a trial court Judge to stay proceedings when compelling an accused to stand trial would violate those fundamental principles of Justice that underlie the community’s sense of fair play and decency, and to prevent an abuse of the court’s process through oppressive or vexatious proceedings.6 It is a power, however, of special application that can only be exercised in the clearest of cases.7 An example of a potentially successful application would be a finding by the court that delay, caused by the actions of the Crown, was for an ulterior motive, such as, depriving the accused the opportunity to make full answer and defence.
Continue reading “Statutory Limitations (Part 2)”
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.
Continue reading “Statutory Limitations”
(…continued from part 3…)
The final factor, and arguably the most important factor to be considered, is prejudice to the accused. Prejudice may be inferred simply from the length of the delay. The longer the delay, the more likely an inference of unreasonable delay will be drawn. In circumstances where prejudice is not found or inferred, the basis for a remedy of the accused’s rights under 11(b) is seriously undermined. Inferred prejudice, however, is seldom sufficient alone. Actual prejudice is far more powerful to fuel a subsection 11(b) argument.
(…continued from part 2)
Subsection 11(b) is limited to criminal or quasi-criminal proceedings or proceedings giving rise to penal consequences. The offence should lead to a true penal consequence in order to apply this constitutional limitation on delay. One classification of offences involves matters of a public nature, those intended to promote public order. Those matters are distinguished from private, domestic or disciplinary matters that are regulatory, protective or corrective and are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct in a private sphere of activity.
(Continued from part 1)
A judicial pre-trial conference in the Superior Court was also adjourned because the assigned Crown was not present. The primary complaints of the accused were that the preliminary hearing was re-scheduled twice and took place almost five months after it was originally scheduled and the trial took place over a year after it was originally scheduled. What follows are some of the interesting comments by the Court of Appeal for Ontario concerning delay applications in the province of Ontario:
Subsection 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. A determination whether subsection 11(b) of the Charter has been infringed is not by application of a mathematical or administrative formula, but instead, by a judicial determination, balancing the interests that the section is designed to protect. The factors to be considered are:
The court also dealt with cases that were in the system prior to July 8, 2016. For these cases the court adopted a contextual application of the new framework. In doing so, the court said it was attempting to avoid a repetition of the post-Askov1 debacle that caused the tens of thousands of criminal charges to be stayed as a result of a similar abrupt change to the law of delay. For cases in the system before this decision, the new framework applies, subject to two qualifications:
