Patrick J Ducharme

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”

Patrick Ducharme

Section 620 provides that every organization against which an indictment is filed shall appear and plead by counsel or agent. Where an organization appears and pleads to an indictment or a plea of not guilty is entered by order of the court under section 622, the court shall proceed with the trial of the indictment and, where the organization is convicted, section 735 provides the available penalties.
Continue reading “Organizations (Corporations)”

Patrick Ducharme

Section 607 of the Code provides for the following special pleas:

(a) autrefois acquit;

(b) autrefois convict; and

(c) pardon.

Autrefois Acquit is a plea made by the accused that he has formally been tried and acquitted of the same charge that he is presently facing. An acquittal on the same charge amounts to a bar to further proceedings. The plea is based on the concept that no person should be subjected to defending himself on the same offence more than once, thereby causing him to be in jeopardy of conviction again when he has been previously acquitted.
Continue reading “The Special Pleas Available in Canada”

Patrick J Ducharme

A Judge is expected to conduct an inquiry to determine that a guilty plea is voluntary. Subsection 606(1.1) provides the conditions for accepting a guilty plea. A court may accept a plea of guilty only if it is satisfied that the accused is making the plea voluntarily and understands that the plea is an admission of the essential elements of the offence; understands the nature and consequences of the plea and that the court is not bound by any agreement made between the accused and the prosecutor. Subsection 606(1.2) provides, however, that the failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.
606(1.1): A court may accept a plea of guilty only if it is satisfied that the accused
Continue reading “Plea Comprehension Scheme”

Patrick Ducharme

This plea joins issue with the prosecution on every essential element that must be proven by the prosecution. It places the prosecution in a position where the prosecution must prove the essential elements of the charge(s) beyond reasonable doubt. A plea of “not guilty” embraces all defences.
Continue reading “Plea of Not Guilty”