Patrick J Ducharme

Patrick Ducharme

Statistically, a majority of criminal cases are resolved by a plea of guilty by the accused to the offence charged or some other lesser offence. A plea of guilty amounts to a formal admission of all of the essential elements of the offence to which the accused pleads guilty. A plea of guilty must be an admission by the accused of all the essential legal ingredients necessary to constitute the crime. The admission dispenses with the necessity of proof of each essential element of the offence charged. A plea of guilty must be entered in a free and voluntary way by the accused, and, be untainted by threats or promises to induce the accused to admit that he committed an offence when, in fact, he does not admit the offence.
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Patrick J Ducharme

A plea is taken to each charge individually. The usual pleas to the charges are ‘guilty’ or ‘not guilty’. The accused is also able to enter any of the special pleas authorized in Part XX of the Criminal Code.

In special circumstances the accused may be allowed to enter one of the special pleas of autrefois convict or acquit, or, pardon. Subsection 606(4) also allows an accused to plead not guilty to the offence charged, but guilty to an included offence or any other offence arising out of the same transaction, however to do so the consent of the prosecutor is necessary.
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Patrick Ducharme

The arraignment of the accused refers to calling the accused before the court, formally reading the charges in the information or indictment to the accused, and asking the accused how she pleads to the charge(s). The primary purpose of the arraignment is to ensure that the accused is aware of the charges before the court. This marks the beginning of the trial.
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Patrick Ducharme

The police do not have the power to arrest an accused for a summary conviction offence by virtue of subsection 495(2) unless the arrest is necessary to establish the person’s identity. A police officer requests that the person he finds committing such an offence identify himself. This request is within the execution of his duty. The accused’s refusal to accede to the request may constitute an offence of obstructing police under section 129.
Continue reading “Arrest to Establish Identity”

Patrick Ducharme

Several factors must be considered when the police conduct a strip search, including whether:

a. the search takes place at a police station, or, some other appropriate place that minimizes the likelihood of public exposure or embarrassment for the person searched;

b. it can be done in a manner that ensures the health and safety of all involved;

c. the search is authorized by a police officer acting in a supervisory capacity;
Continue reading “Strip Searches on Arrest”

Patrick J Ducharme

Where a person is detained for a search, as in the case of a body search incident to arrest, the detainee has the right to be informed of the right to counsel under s. 10(b) of the Charter. But, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. They are required to suspend the search only when the lawfulness of the search is dependent on the detainee’s consent or where the statute gives a person a right to seek review of the decision to search.1
Recent Supreme Court of Canada cases have tightened the available avenues of challenge to evidence based on a failure of the authorities to provide rights to counsel. In R. v. Sinclair2 the accused was arrested for murder. In due course he was advised of his rights to counsel, and, in fact, spoke by telephone with his counsel twice. After speaking with his counsel, however, he was interviewed by a police officer for several hours.
Continue reading “Right to Counsel on Arrest”

Patrick Ducharme

The Supreme Court of Canada has struggled with the issue of whether every unlawful arrest will constitute a breach of the guarantee to protection against arbitrary detention in s. 9 of the Charter. It was the court’s decision in 1989 that if an officer honestly but mistakenly believes that reasonable and probable grounds exist and there is some basis for that belief, then the arrest, although subsequently found to be unlawful, is not arbitrary.
Continue reading “Arrest and Arbitrary Detention under s. 9 of the Charter”

Patrick Ducharme

If a person has been arrested without warrant by a peace officer for an offence that is punishable by imprisonment for five years or less the officer in charge at the police station or another peace officer shall, as soon as practicable, release the person with the intention of compelling that person’s appearance by way of summons or promise to appear in court at a specified date and time.1 The “officer in charge” may release the person on entering into a recognizance without sureties in an amount not exceeding $500.
Continue reading “Release of Arrested Persons”

Patrick J Ducharme

An arrest is the compulsory restraint of a person. Touching the arrestee is not required if the arrestee submits to the restraint of his liberty. Arrests may be made by use of reasonable force or by words or a restraint of liberty that is accompanied by submission. If touching is not sufficient, and reasonable force is necessary, then the use of force is permitted.1
Continue reading “What Constitutes an Arrest?”

Patrick Ducharme

A peace officer may not arrest a person without warrant for a summary conviction offence, a hybrid offence or an absolute jurisdiction offence unless it is necessary to do so having regard to the need to establish the identity of the person, to secure or preserve evidence, or to prevent the continuation or repetition of the offence or the commission of another.1 Although a peace officer is deemed to be acting lawfully and in the execution of his duty, if he disregards the requirement not to arrest in these circumstances, it may lead to a remedy pursuant to section 9 of the Charter as an arbitrary detention.

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.

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