The following are the contents of Volume 1 of Canadian Criminal Procedure. You can find more information on any topic covered by searching this Web site or by reading the book. We add more of Patrick Ducharme’s articles to this site every day.
Preface 2
Introduction 4
CHAPTER ONE
Canadian Trial History and our Connection to the Queen 14
CHAPTER TWO
Fundamental Principles of Canadian Criminal Law 19
Presumption of Innocence 23
Proof Beyond a Reasonable Doubt 24
When Credibility of the Accused is the Issue 25
The Test of Relevancy 25
Full Answer and Defence 26
Effective Legal Representation 29
Disclosure 30
Court System in Canada: The Supreme Court of Canada 35
The Objective and Subjective Elements of Crime 36
Presumption of Innocence and Burden of Proof 36
Reasonable Doubt 37
The Physical Element of Crime May Include a Duty to Act 40
Example of a Crime Based Upon a Failure to Act 41
The Tale of Stephen Jurkus: Senior Official in Charge of the EMDC 42
The Onerous Duty 42
Wrongful Convictions 46
The Mental Element of Crime – Intent 47
Presumptions 48
Intention versus Motive 48
Direct versus Circumstantial Evidence 49
Direct Evidence 50
Circumstantial Evidence 50
The Accused as Witness 52
The Crown’s Responsibility to Provide Disclosure 53
Translators Available 54
Character Evidence 55
Out of Court Statements of Accused 61
Mixed Statements: Inculpatory and Exculpatory 61
Statements to Persons in Authority (Police officers, Crown Attorneys) 62
The Confessions Rule 64
Motive 67
Post-Offence Conduct 68
Alibi Defence and Timely Disclosure 69
Eyewitness Identification Evidence: Often Weak and Sometimes Dangerous 70
Political Considerations of Judicial Appointments 74
CHAPTER THREE
The Charter of Rights and Freedoms (“the Charter”) 78
The Importance of Section 7 of Charter 81
Other Protected Charter Rights 82
Remedies Under the Charter 88
Section 24 88
Section 52 89
Freedom of Association 92
Religious Freedom 93
Canada’s Prostitution Laws 95
CHAPTER FOUR
General Procedural Rules 99
Jurisdiction 99
Territorial Jurisdictions 99
Summary Conviction Court 102
Jurisdiction of Judges 103
Procedural Irregularities 105
Jurisdiction vs. Venue 106
Change of Venue 107
Federal vs. Provincial Jurisdiction For Custodial Sentences 108
The Extraordinary Remedies 109
Age 110
No Automatic Stay of Trial Pending Appeals Under 784 110
Single Transaction Rule 111
Duplicity 112
Single Transaction Rule vs. Duplicity 114
Amendments 116
Joinder and Severance 118
Particulars 120
Privately Laid Informations: Private Prosecutions 121
Section 810 Recognizances 122
Section 161 Orders of Prohibition 124
Limitation Periods 125
Applications for Stay of Proceedings Based on ss. 11(b) of the Charter 125
The New Approach to Delay Applications 125
Transitional Cases 127
Delay Under the Morin Framework 128
Statutory Limitations 137
Courtroom Procedures 140
Arraignments and Appearances 140
Absence or Failure to Appear by Organizations (Corporations) 141
Bringing the Accused to Court 141
Agents 143
Re-elections 144
Deemed Elections 146
Attorney General Requiring a Jury Trial 147
Consent of the Attorney General 148
Appearances in Court 148
Failure to Appear for Jury Trial 149
Stay of Proceedings 150
Withdrawal of Charges 150
Applications for Ministerial Review 151
Summary 153
CHAPTER FIVE
Youth in Conflict With the Law 158
Overview: Declarations and Principles of the YCJA 158
Arrest of a Young Person 160
Rights to Counsel 160
Notice to Parents 162
Judicial Interim Release and Young Persons 164
Jurisdiction and Division of the Courts 166
Trial Procedure, Election and Mode of Trial and the Imposition of Adult Sentences for a Young Person 167
Election of Mode of Trial When Facing an Adult Sentence 168
Application by Attorney General – Notice Requirements: s. 64 of the YCJA 169
Obligation 170
Hearing as to Whether a Youth or Adult Sentence is to be Imposed after a Finding of Guilt – s. 71 and 72 of the YCJA 170
Imposition of a Youth Sentence for a Young Person 171
Young Persons Subject to Adult Sentence 176
Evidence: Admissibility of a Statement Made by a Youth 178
CHAPTER SIX
Note that chapter six was absent from the 2022 edition of Canadian Criminal Procedure (Volume 1). The contents of this chapter were moved to Volume 2 and it was this publisher’s oversight in forgetting to re-number all subsequent chapters. This book has thus far been revised hundreds of times through its history of 32 editions. This and other important changes will be reflected in our 33rd edition, to be released shortly.
CHAPTER SEVEN
Search and Seizure 187
Section 8 of the Charter 187
Section 9 of the Charter 191
The Cases of Grant and Harrison 191
R. v. Spencer 197
Search and Seizure Pursuant to the Code – s. 487 198
Minimum Requirements 201
4-7 Manner of Execution 203
The Offence 204
Challenges to the Warrant 204
Impoundment Orders and Disclosure of ITO 205
Location of Search and Backing the Warrant 206
Detention of Items Seized 206
General Warrants 487.01 207
Strip Searches 209
Penile Swabs 211
Production Orders 214
Tracking Devices 215
Subsection 24(2) of the Charter 216
Tele-warrants 220
Exceptions to the Requirement of a Warrant 226
Exigent Circumstances 226
Search Incidental to Arrest 227
Investigative Detentions 227
School Searches 230
Regulatory Searches 237
Consent Searches 238
Courthouse Searches 239
Border Searches 239
J. FLIR Technology 240
Oickle, Singh and Sinclair: The Confessions Rule 240
Strip Searches 240
Statements and Confessions 241
The Court Must Decide 243
Informer Privilege 247
Distinction between Agents and Confidential Informants 250
Proceeds of Crime: s. 462.3-462.5 Part XX.2 of the Code 251
DNA Warrants 252
Wiretaps 253
Technology and the Future 253
Computers, Smartphones & Computer-Like Devices 254
Leave to Cross-Examine the Affiant of the ITO 257
Reasonable Expectation of Privacy 260
R. v. Spencer SCC 263
CHAPTER EIGHT
Arrest 265
Overview: Arrest vs. Detention 265
Power of Arrest: Private Citizens 494 265
Powers of Arrest by the Police without Warrant 495 268
“Apparent Emergency” Calls to 911 270
The Birth of “Feeney” Warrants 271
Powers of Arrest/Detention Greater for Some Indictable Offences 273
Preventing a Breach of the Peace 275
Grounds of Arrest 276
Lawfulness of the Search Incident to Arrest 280
Entry into Dwelling Houses with Warrant 281
Proper Announcements 282
Execution of Duty 284
Arrest Warrant Deemed Valid 285
Arrest Only When Necessary 285
What Constitutes an Arrest? 286
Release of Arrested Persons 286
Arrest and Arbitrary Detention under s. 9 of the Charter 287
Right to Counsel on Arrest 288
Strip Searches on Arrest 291
Arrest to Establish Identity 293
CHAPTER NINE
Arraignments and Pleas 294
Arraignment 294
Pleas 294
Guilty Pleas 296
Plea of Not Guilty 297
Plea Comprehension Scheme 298
The Special Pleas Available in Canada 299
Organizations (Corporations) 302
Trial May Proceed in Absence of the Accused 475 302
Section 795 Incorporates s. 650 for Summary Conviction Matters 305
Appearance by Organizations (Corporations) 306
How Judges Become Seized of Cases 307
Summary 308
CHAPTER TEN
Judicial Interim Release or Bail 310
The Ladder Principle 313
One Notable Exception to Restraint: Domestic Violence 314
The Importance of Timely Disclosure 315
Disclosure Problems 316
Non-Publication Orders 318
Section 518 (1) (b) of the Code provides: 320
Defence Often Compromised by Pre-trial Detention 320
How Bail Works 321
Section 469 Offences 321
R. v. St-Cloud on Proper Review Grounds 326
Grounds of Detention and Reverse Onus 332
From “Least Onerous” Up the Ladder 332
Release is Default Position 333
The Right to Bail Expeditiously 337
Burden of Proof 337
Cash Bail 337
Reverse Onus Bail Hearings 338
Principle of Restraint 341
Young Persons and Bail 341
Two Procedures 344
Evidence at the Hearing 345
Adjournments 347
Non-Publication 347
Recognizances and Forfeiture Proceedings 349
Sureties 350
Alternate Ways to Review 351
R. v. Antic: The Right Not to be Denied Reasonable Bail 351
Summary 353
CHAPTER ELEVEN
Defences 355
The Intentional Part 356
Accident 357
An Unintended Act 358
Provocation May Be Relevant 359
Murder Reduced to Manslaughter: Only If Facts Support 362
An Unintended Consequence 363
Consent 365
Proof of Consent: Sexual Assault 372
Proof of Consent: Assault 373
Intoxication 376
Specific Intent versus General Intent Crimes 377
Mental Disorder 381
Defence of Necessity 389
Self Defence 391
Denial of Conduct Claimed by the Prosecution 394
CHAPTER TWELVE
Pre-trials 396
Applications and Charter Challenges 404
Non-Jury Pre-Trial Conferences 407
Pre-Trial Applications before Jury Selected 409
Admissions of Fact 410
Adjournments 410
Various Sections Concerning Adjournments 411
Preliminary Hearings 411
Trials 411
Trials to Be Continuous 411
Adjournments Based on Absent Witnesses 411
Decisions on Pre-Trial Applications 412
Examples of Common Pre-Trial Applications 414
Production and Disclosure of Therapeutic Records in the Possession of Third Parties 414
Removal or Withdrawal of Counsel 416
Application for Removal 417
Exclusion of Witnesses 418
Charter Applications 418
Applications to Strike Down Legislation 418
Charter Remedies 419
Pre-charge Conferences 424
Attendance by Accused 425
Video Links 425
Complainants Under Eighteen Years of Age 425
Support Persons Screens and Other Protections 426
Special Status of Trial Judge for Pre-Trial Applications 431
Commission Evidence 433
Severance 434
Particulars 434
Release of the Exhibits for Testing 435
Conflicts 436
Counsel of Choice 436
Summary 436
CHAPTER THIRTEEN
Preliminary Hearings 439
Overview 439
The Test for Committal 439
The Purpose of a Preliminary Healing 450
The Role of the Judge in a Preliminary Healing 463
Subsections 540(7)-(9) of the Criminal Code 466
Hearing Must Be Requested 536.3 468
Dawson Applications 468
Right to Cross-Examine at Preliminary Inquiry 471
Expert Evidence 473
Proceedings 475
Basis of Admissibility 477
The Appellate Decisions 478
Ontario 478
British Columbia 478
Québec 481
Saskatchewan 482
New Brunswick 485
Summary of Appellate Decisions 487
What is the Proper Method of Challenge? 488
What is ‘Credible or Trustworthy’ Evidence? 490
“Credible or Trustworthy” Has History 497
Air of Reliability vs. Air of Reality 500
The Definition of Sufficiency in 548 502
Conclusions 506
Right of Accused to Call Witnesses 507
Circumstantial Evidence 507
Regulating Preliminary Inquiries 508
Exclusion of Public 509
Publication Bans 509
Evidence: to Include Credible or Trustworthy Evidence 510
Warning and Statement of Accused 512
Submissions 512
Altering Conditions of Bail 512
Preferring Indictments 513
Summary 513
Prosecutors Assessing the Case 514
Discovery for the Defence 514
Recent Amendments Restricting the Availability of Preliminary Inquiries to Offences Carrying Penalties of fourteen years or More 516
Increased Powers of Regulation 520
Hearing Must Be Requested 522
Focus Hearings: Section 536.4 of the Code 523
Agreement to Limit Scope 523
Powers of the Justice 524
Basis of Admissibility 526
Reasonable Notice 526
Business Records 527
Expert Evidence 528
Regulating Hearing 529
Exclusion of the Public 530
Publication Bans 530
The Warning and Statement of the Accused 531
Submissions 532
The Definition of Sufficiency in 548 532
The Proper Method of Challenge 536
Changing Bail 538
Preferring Indictments 538
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.
Subscribe to Patrick Ducharme's Youtube Channel