Criminal Procedure

Contact Trial Criminal Law Procedure Evidence Charter of Rights Civil


The Identification of Criminals Act allows police to fingerprint those in custody after arrest on probable grounds of commiting any criminal offence. Anyone arrested for a hybrid or indictable offence can also be released and required to return for fingerprinting on a promise to appear. If the accused does not attend to give prints they may be charged with failing to appear. R. v. Conliffe (Ont. S.C.) 1984 states that because the offence (theft under) was one which surely would have been proceeded with summarily then the order to appear was void. The wikipedia article gives an excellent list of the differences between summary and indictable offences. A hybrid offence is one where the crown must choose whether to proceed summarily or by indictment.

There are two decisions from the Province of Quebec: LaPlante vs. A.G. Que., 32 C.R. (3d) 94 and Rancourt vs. M.V.C. and A.G Que., 35 C.R. (3d) 162, that hold that prints and photos must be returned upon request in the event of an acquittal. The same could be argued in Ontario, although most police departments destroy these records with a request containing proof of acquittal.

Burden of Proof
The defendant has no responsibility to lead evidence showing their innocence. They are assumed innocent until proven otherwise. Usually, the prosecutor (who will henceforth be referred to as the crown) must prove every single element of the offence beyond all reasonable doubt.

To identify all these elements you must look at the indictment (charge sheet). An indictment might read: "On or about October 5th 2014 Randy Jefferson committed assault contrary to section 265.1 of the criminal code by striking one Borislav Carson on the head in Gage Park, Hamilton." The crown must prove our defendant, Randy,
1) was at Gage Park, (the jurisdiction of the court over Randy must be established by showing the crime occurred in Ontario)
2) On or about Oct 15, (the date matters because summary offences have a 6 month limitation period after which no charge can be sworn. If a hybrid offence is sworn then tried summarily after the 6 month limit the accused should say nothing about the delay and plead not guilty, if convicted they can have the conviction quashed as a nullity by showing the court the delay, and then the crown gets another shot, if aquitted the accused's wins outright. This circumstance gives the accused a risk free trial.)
3) assaulted a person
4) who was Borislav Carson,
5) by striking his head.
If there was any facts to suggest the possibility of self defence, such as bruises on the accused, then in addition the crown would be requires to disprove self defence.

Important: If the crown fails to lead evidence on any one of the essential elements the defendant should, at the end of the crown's case and before the defendant calls any evidence, stand up and request a no evidence motion.

What would happen, if at trial, the crown proved 1) Borislav was struck in the arm but not the head, or if 2) the crown proved the defendant assaulted the Borislav somewhere else but not near Gage Park? Section 601 of the Criminal Code gives the crown broad powers to amend indictments in order to make the charged conduct more specific. The crown cannot make amendments that enlarge the scope of the offence. For example 1) an amendment would cure the innacuracy because there both versions refer to the same incident and the definition of assault is still met. In 2) the amendment would likely be rejected because the accused may be misled as to which incident the indictment refers to. See R. v. Coles. The accused also has a right to request the indictment be amended to narrow down the elements in order to make clear what incident is the subject of the trial.

The Charter of Rights and Freedoms provides all criminal defendants a right to all relevant evidence in the possession of the police and crown. This includes any evidence that will be presented against you at trial along with any exculpatory evidence tending to show the accused is not guilty. This disclosure is often provided at the first appearance. The disclosure package is critical for planning a defence. Evidence not disclosed to the defence cannot be tendered by the crown at trial. Things to look for in disclosure package:

- indictment or charge sheet listing the criminal code section number and brief description of where, what, and when
- witness statements to police (important in cross-examination)
- handwritten police notes (when the police or crown give a witness details about a crime it damages the witness's independence and reliability)
- copies of undertakings, ordinances, contracts, promises to appear, etc. (The 'Best Evidence Rule' means often only the original document can be used as evidence at the trial itself)
- copy of eyewitness' photo identification of accused signed by the witness.
- copies of warrants executed against the defendant or their property including the ITO which convinced the judge to sign the warrant.

If the defendant suspects there is evidence the crown is withholding they can write a letter requesting it. This should be done only after careful thought about what you expect the evidence will be. I was defending an alleged assault where the alleged victim told to the police in her statement that she had photos of her injuries. These photos were not in the disclosure package. I did not request the pictures since they would likely have shown that the victim was assaulted. If we requested the pictures the crown would have collected them and they would be available for use against us at trial.

There is no corresponding responsibility for the defence to share evidence with the crown except when an alibi will be offered at trial or when an expert witness will testify. R. v. Eddy describes the exceptions to the crowns disclosure obligation and what 'relevance' means.

Voir Dire
A 'voir dire' (translation: to see to say) is a latin term refering to a small trial within the main trial. A voir dire is directed at resolving a single issue, like whether some testimony is admissible, or whether the police violated an accused's Charter Rights. This process usually begins when one party calls a witness or asks that witness a question and the other party objects.

In order to detirmine whether the evidence is admissable the manner in which it was collected or the evidence itself must be revealed during the voir dire. The circumstances of a confession must be known to decide if the accused was improperly induced or threatened. The content of hearsay must be repeated to decide if it is reliable. This seems to disadvantage the party who wants the evidence excluded since the judge hears it anyways (the jury is never present during a voir dire). If the evidence is excluded at the end of the voir dire the judge will ignore it as if they heard nothing.

An accused's right to not testify in the main trial is protected during the voir dire. An accused might testify in a voir dire that they own a house where the police found narcotics because they want to establish a privacy right under s.8 of the Charter in order to exclude evidence. This testimony would normally be incriminating because it links the accused to the drugs. Thankfully Erven v. The Queen holds that testimony on a voir dire cannot influence the trial itself. This remains true even if the judge ruled against the accused in the voir dire.

Rule in Kienapple v. R.
Some offences have smaller included offences inside them. For example, assault causing bodily harm includes normal assault. This means that someone accused of assault causing bodily harm could end up being convicted of only common assault if the crown proved the accused hit the victim but failed to prove injury beyond reasonable doubt. The rule against double jeopardy means that if the crown proved assault causing bodily harm the accused could not be convicted of common assault as well since he would be punished twice for the same crime.

This principle against double convictions was expanded after the Kienapple case. Even if the second offence is not included within the first this rule may prevent more convictions if the act constituting both offences is the same. Along with this factual requirement there is also the legal requirement that the second offence has no distinguishing elements separating it from the fist offence. An example is someone is charged for both shoplifting (theft under $5000) and possession of stolen property. The element of possessing stolen property is knowingly having stolen property. This element is also required to prove theft under $5000. In this case the possession charge has no distinct elements separating it from theft under $5000 (to steal something you must have it for some time). An accused who lost at trial would be convicted of theft only, a stay of process would be entered for the charge of possession of stolen goods.

Another common application of this rule is seen in impaired driving cases. The DUI defendant is often charged with both 1) driving while over .08 mg ethanol/100ml of blood and 2) driving while impaired. The defendant can only be punished for one of these charges (both charges carry the same minimum $1000 fine along with a suspended license).