Patrick J Ducharme

(Continued from Part 1)

There are no statutory formalities for the creation of a Part XXI.1 application. The Minister may refer “the matter at any time to the Court of Appeal for hearing and determination by that court as if it were an appeal by the convicted person”.3 Or, the application can be dismissed or there may be an order by the Minister for a new trial.4 The Minister does not have to undertake the investigation of the case personally, or even with the assistance of his or her government staff.

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Part XXI.1 of the Code was proclaimed in force in November 2002. It adopts most of the former law and practice under the repealed section 690 of the Code and removes the characterization of the ministerial review power as the “Mercy of the Crown”. Section 696.1 allows an accused to apply to the Minister of Justice of Canada to review a conviction or a finding that the accused is a dangerous or long term offender. An accused person is only permitted to apply for this remedy after he has exhausted all other appellate remedies. This amounts to an application of last resort. The application seeks a remedy for some legal wrong that is entirely discretionary.

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There is no statutory authority for the Crown’s ability to withdraw a charge(s). The power to do so derives from the common law. Although the Code is silent as to withdrawal of charges, it is an established practice that the prosecutor may withdraw charges without the approval of the court, particularly prior to the accused entering a plea. It appears, however, that although the prosecutor may withdraw a charge as of right any time prior to plea, once evidence has been tendered the withdrawal of the charge requires leave of the court. In the absence of a finding of abuse or flagrant impropriety, once the prosecutor withdraws or stays a charge the court is without any jurisdiction to deal with a Charter application. At this stage, the only possible remedy for an accused is to commence a civil action for remedy.

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Section 579 permits the Attorney General, or counsel instructed by him, to direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his/her direction. Proceedings stayed in accordance with section 579 may be re-commenced without laying a new information or preferring a new indictment by giving notice of the re-commencement to the clerk of the court within one year after the entry of the stay of proceedings. If no re-commencement takes place, the proceedings shall be deemed never to have been commenced.

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If an accused fails to appear for his/her jury trial, subsection 598(1) of the Code provides that the accused loses the right to be tried by a Judge and jury. At a subsequent trial date the accused (if and when he/she re-appears) may be required to proceed on the basis of a trial with a Judge sitting without a jury unless the accused satisfies the court that there was a legitimate excuse for his/her earlier non-appearance, or, the Attorney General requires that the trial proceed before a jury pursuant to section 598.

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Pursuant to section 650 of the Code the accused has the right and duty to attend at all times and for all aspects of his trial. In certain limited circumstances the court may interfere with the right of the accused to be present. Subsection 650(2) allows the court to exclude an accused from any proceeding against his or her will in the limited circumstances where the court causes the accused to be removed and to be kept out of the court because the accused is interrupting the proceedings, or, if the accused is unfit to stand trial and the court is satisfied that failure to do so might have an adverse effect on the mental condition of the accused. Also, the court may permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper. “Present” means physically present and able to hear and see the proceedings.
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Section 568 permits the Attorney-General to require a jury trial where the offence is punishable by more than five years imprisonment. In those instances where the Attorney General requires a jury trial, a preliminary inquiry must be held if requested pursuant to subsection 536(4) of the Code.

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If two or more persons are jointly charged on an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the Justice may decline to record any election, re-election or deemed election for trial by a provincial court Judge or a Judge without a jury. The accused is deemed to have elected to be tried by a court composed of a Judge and jury if the provincial court Judge declines to record the accused’s election pursuant to section 567.

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The accused may want to re-elect the mode of his/her trial. Section 561 of the Code is the section that permits an accused to make a re-election depending upon the timing of the decision to re-elect. Section 561 of the Code provides the procedure to follow when an accused wishes to change her election or deemed election as to the mode of trial. Here are the possibilities:
if the original election is a forum other than before a provincial court Judge, the consent of the Crown is required to re-elect to have a trial in provincial court; (1)(a);

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Certain offences require the consent of the Attorney General of a Province before proceedings may be instituted. For example, the charge of “nudity in a public place” requires the consent of the Attorney General before proceedings may be instituted pursuant to subsection 174(3) of the Code. As we have seen in the section related to re-elections, in some circumstances, the Crown’s consent is required to re-elect1 or to have a trial by Judge alone where, absent the consent, the trial would be before a Judge and jury. Requiring the Crown’s consent to re-election has withstood Charter scrutiny. The Crown’s decision as to whether or not to give consent is not, however, immune from judicial scrutiny. It may be examined for abuse of process in very limited circumstances.

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