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Practice Material users must exercise their professional judgment about the accuracy,
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Professional Legal Training Course 2023

Practice Material
Criminal Procedure
Recent Contributors:
Drew J. Beesley Ellen Leno
John Caldwell Eric Purtzki
Sara Clouston Micah Rankin
Gordon S. Comer Nicholas Reithmeier
Colleen Elden Ann Seymour
Lionel Farmer Patti Tomasson
Baljinder Girn Derek Wiebe

Practice Material Editors:

Susan MacFarlane, Katie McConchie

Printed for the May 2023 Session

of the Professional Legal Training Course

A requirement for admission to the bar of British Columbia, the Professional Legal Training Course is
supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia.
© 2023 The Law Society of British Columbia. See lawsociety.bc.ca >Terms of use.
 CRIMINAL PROCEDURE
CONTENTS

CRIMINAL LAW AND PRACTICE

[§1.01] Introduction to These Materials 1

[§1.02] Current Awareness 1
[§1.03] Essential Resources 1
[§1.04] Further Reading 2
1. Annotated Codes, Digests and Reports 2
2. Criminal Procedure 2
3. Evidence 2
4. Substantive Law 3
5. Canadian Charter of Rights and Freedoms 3
6. Advocacy 3
7. Sentencing 4
8. Youth Criminal Justice 4

PRELIMINARY MATTERS

[§2.01] Taking the Case 5

1. Services the Lawyer Provides 5
2. Factors to Consider 5
3. Information and Communication 6
4. Gathering Details of the Case 6
5. Further Considerations 7
6. Retainer 8
[§2.02] Compelling Appearance and Judicial Interim Release (Bail) 8
[§2.03] Release by Police 9
[§2.04] Release by the Court 10
1. Objectives 10
2. Procedure at the Bail Hearing 10
3. Release Orders 10
4. Detention 11
5. Evidence 13
[§2.05] Bench Warrants, Judicial Referral Hearings, and s. 524 Hearings 13
[§2.06] Charges in Other Jurisdictions 13
[§2.07] Sureties 14
[§2.08] Bail Variations in Provincial Court 15
[§2.09] Bail Reviews in Supreme Court 15

Criminal Procedure
 (ii)

[§2.10] Section 525 Detention Reviews 15

[§2.11] Bail Review Documents (ss. 520 and 521) 16
1. Notice of Application 16
2. Notice to Person(s) Served 16
3. Affidavit in Support 16
4. Transcript of Provincial Court Hearing 16
5. Order After Bail Review 17
[§2.12] Information for Bail Hearings 17
1. Attendance 17
2. Protection of the Public 17
3. Confidence in the Administration of Justice 18
[§2.13] Bans on Publication 18
[§2.14] Estreatment Procedures 18
[§2.15] Mental Disorder 18
1. Aspects to Consider 18
2. Fitness to Stand Trial 19
3. The Defence of Mental Disorder 19
4. Disposition—Not Criminally Responsible 20
5. Sentencing—Minor Mental Illness 20

PREPARATION FOR TRIAL

[§3.01] Steps in Preparing 21

[§3.02] Preparation Generally 21
[§3.03] Disclosure of Particulars 21
1. Purpose 21
2. Content 22
3. How and When to Request Particulars 22
4. Limitations 23
5. Remedies for Lack of Disclosure 24
[§3.04] Court Records, Informations, Transcripts 24
[§3.05] Informations and Indictments 25
[§3.06] Limitation Periods 26
[§3.07] Alternatives to Prosecution 26
[§3.08] Early Disposition 27
[§3.09] Plea Resolution 27
[§3.10] Criminal Caseflow Management Rules 29
1. Objectives of the Rules 29
2. Initial Appearances 29
3. Arraignment Hearing 30
[§3.11] Pleas 31
[§3.12] Elections 32
[§3.13] Re-Election 33

Criminal Procedure
 (iii)

[§3.14] Interim Appearances and Pre-Trial Conferences in Provincial Court 33

1. Interim Appearances and Pre-Trial Conferences to Ensure Trial Readiness 33
2. Pre-Trial Conferences Introduced During COVID-19 34
[§3.15] Assignment to a Judge and Courtroom 34
[§3.16] Adjournment 35
[§3.17] Obtaining Further Particulars 36
[§3.18] Joinder and Severance 36
[§3.19] Stays of Proceedings, Withdrawals and Dismissals for Want of Prosecution 36
[§3.20] Interviewing Clients 37
[§3.21] Witness and Client Statements 39
[§3.22] Witnesses 39
1. Types of Witnesses and Procedure 39
2. Expert Witnesses 40
3. Character Witnesses 40
[§3.23] Withdrawal as Counsel 40

APPENDICES—NOT AVAILABLE IN ONLINE VERSION

Appendix 1 – Criminal Offences Flowchart 43
Appendix 2 – Provincial Offences Flowchart 44

THE TRIAL

[§4.01] The Preliminary Inquiry 45

1. Election Procedure 45
2. Election Considerations—Trial or Preliminary Inquiry? 45
3. Limiting the Scope of a Preliminary Inquiry 46
4. Evidence on Preliminary Inquiry 46
5. Order Following Preliminary Inquiry 48
6. Direct Indictment 48
7. Re-election 49
8. Review by Certiorari 49
[§4.02] Pre-Trial Applications 49
1. Crown Disclosure 49
2. Third Party Records and Sexual History 50
3. Defence Disclosure 50
4. Testimonial Supports and Accommodations 51
[§4.03] Pre-Trial Conferences 51
[§4.04] Jury Selection 51
[§4.05] The Crown’s Case 53
[§4.06] Crown’s Opening in Non-Jury Trials 53
[§4.07] Crown’s Opening in Jury Trials 53
[§4.08] Direct Examination 54

Criminal Procedure
 (iv)

[§4.09] Leading Questions 54

1. When Permitted 54
2. Exceptions 54
[§4.10] Refreshing a Witness’s Memory 55
[§4.11] Admissions of Fact 56
[§4.12] Witnesses and Exhibits 56
[§4.13] Cross-Examination 57
[§4.14] Limits of Cross-Examination 58
[§4.15] Re-Examination 59
[§4.16] No-Evidence Motion 59
1. The Rule 59
2. Circumstantial Evidence 59
[§4.17] Insufficient Evidence Motion 59
[§4.18] Defence Case 60
1. Whether to Call Evidence 60
2. Presenting the Evidence 60
[§4.19] Cross-Examination of the Accused 60
1. Scope of Cross-Examination 60
2. Previous Convictions 61
[§4.20] Defence Re-Examination 62
[§4.21] Rebuttal or Evidence in Reply 62
1. When Rebuttal is Proper 62
2. Examples of Rebuttal 62
[§4.22] Surrebuttal 63
[§4.23] Addresses of Counsel 63
1. Order 63
2. Content 63
3. Crown 63
4. Defence 63
[§4.24] Judge’s Charge on a Jury Trial 64

EVIDENCE

[§5.01] Burden and Standard of Proof 65

1. General Rule 65
2. Statutory Presumptions That Shift the Burden of Proof 65
3. Inferences From Evidence 66
[§5.02] Eyewitness Identification of the Accused 66
1. Descriptions of the Accused 67
2. Police “Line-ups” and Photo Packs 67
3. Accused Sitting in Body of Courtroom 67
4. Video Evidence of an Offence 67
[§5.03] Voir Dire 68

Criminal Procedure
 (v)

[§5.04] Statements of the Accused 68

1. General 68
2. Persons in Authority 69
3. Voluntariness 69
4. Charter Sections 7 (Right to Silence) and 10(b) (Right to Counsel) 69
[§5.05] Statements of Non-Accused Witnesses 70
[§5.06] Hearsay 71
1. General Rule 71
2. Traditional Exceptions 71
3. The “Principled Approach” 71
4. Application of the “Principled Approach” to Prior Inconsistent Statements 72
5. Documents as Hearsay—Statutory Exceptions 72
[§5.07] Character Evidence 73
1. Evidence of Accused’s Good or Bad Character 73
2. “Putting Character in Issue” 73
3. Character of Non-Accused Witness 74
4. Criminal Records 74
5. Impermissible Questions 75
[§5.08] Opinion Evidence 75
1. General 75
2. Admissibility of Expert Evidence 75
3. Factual Basis for Expert Opinion 76
4. Procedure 76
[§5.09] Rebuttal Evidence 76

CHARTER APPLICATIONS

[§6.01] The Charter 77

[§6.02] Jurisdiction 77
1. Challenges to Legislation (s. 52) 77
2. Challenges to State Conduct (s. 24) 77
[§6.03] Notice and Timing 77
[§6.04] Standing 78
1. Public Interest Standing 78
2. Private Interest Standing 78
[§6.05] Unconstitutional Legislation (s. 52) 79
1. Remedies 79
2. Section 1 Analysis 79
[§6.06] Unconstitutional State Conduct (s. 24) 79
[§6.07] Exclusion of Evidence 80
[§6.08] Section 7 Rights 80
1. Vague or Overbroad Legislation 80
2. Abuse of Process 81
3. Disclosure 81
4. Pre-Charge Delay 82
[§6.09] Rowbotham Applications (s. 7 and s. 11(d)) 82

Criminal Procedure
 (vi)

[§6.10] Effective Assistance of Counsel (s. 7 and s. 11(d)) 83

[§6.11] Search and Seizure (s. 8) 83
1. Authorized by Law 83
2. Conducted in a Reasonable Manner 84
3. Nexus Between the Breach and the Evidence 84
4. Searches of Law Offices 84
[§6.12] Arbitrary Detention (s. 9) 84
[§6.13] Right to Counsel (s. 10(b)) 85
[§6.14] Post-Charge Delay (s. 11(b)) 85
[§6.15] Cruel and Unusual Punishment (s. 12) 86
[§6.16] Costs or Damages 86
1. Costs Against the Crown in Criminal Proceedings 86
2. Damages for Charter Violations in Civil Proceedings 86

THE YOUTH CRIMINAL JUSTICE ACT

[§7.01] Purpose and History 87

1. Principles and Interpretation 87
2. Overview of 2019 Amendments 87
[§7.02] Jurisdiction 87
[§7.03] Alternatives to Charging an Offence 88
1. Extrajudicial Measures 88
2. Extrajudicial Sanctions 88
[§7.04] First Appearance 88
[§7.05] Detention and Release Before Sentencing (Bail) 89
[§7.06] Conferencing 89
[§7.07] Trial 89
1. Venue 89
2. Evidence 90
[§7.08] Youth Sentences 90
1. The Purpose and Principles of Sentencing 90
2. Available Sentences 91
[§7.09] Appeals and Reviews 92
1. Appeals 92
2. Reviews 92
[§7.10] Provincial Statutory Offences 92

SENTENCING

[§8.01] Preparation 93
[§8.02] Sentencing Hearing—The Process 93
1. Preliminary Issues 93
2. Crown’s Submissions 94
3. Defence Submissions 97

Criminal Procedure
 (vii)

[§8.03] Preparing Submissions on Sentence 100

[§8.04] Available Sentences 100
1. Absolute Discharge 100
2. Conditional Discharge 101
3. Probation Orders 101
4. Suspended Sentence and Probation Order 102
5. Fines 102
6. Fine Plus Probation Order 103
7. Restitution 103
8. Conditional Sentence Order of Imprisonment 104
9. Intermittent Sentence of Imprisonment 107
10. Intermittent Sentence of Imprisonment, and Probation 108
11. Intermittent Sentence of Imprisonment, and Fine 108
12. Imprisonment for Two Years Less a Day, or Less (“Provincial Time”) 108
13. Imprisonment for Two Years Less a Day, or Less (“Provincial Time”), and Probation 108
14. Imprisonment and Fine 109
15. Imprisonment for a Term of Two Years or More (“Federal Time” or
“Penitentiary Time”) 109
16. Imprisonment for a Term of Two Years, and Probation 110
17. Imprisonment of Two Years or More, and Fine 110
18. Sentences of Life Imprisonment 110
19. Additional Considerations for Sentences of Imprisonment 111
20. Dangerous Offenders and Long-Term Offenders 112
[§8.05] Firearms and Weapon Prohibition Orders 113
1. Mandatory Firearm and Weapon Prohibition Orders 113
2. Discretionary Firearm and Weapon Prohibition Orders 114
3. Preventative Firearm and Weapon Prohibition Orders 114
4. Lifting Firearm and Weapon Prohibition Orders 115
5. Surrender and Forfeiture Orders 115
[§8.06] DNA Orders 115
1. Generally 115
2. Primary Designated Offences 115
3. Secondary Designated Offences 115
4. Collection of DNA Sample 115
5. Failing to Comply With DNA Order 116
6. Use of DNA Information 116
[§8.07] Prohibitions (s. 161) 116
[§8.08] Sex Offender Information Registration Act (“SOIRA”) Orders 116
1. Purpose and Applicability of SOIRA 116
2. Appeals and Termination 116
3. Obligations if SOIRA Order Imposed 116
[§8.09] Immigration Consequences of Sentencing 117
1. Citizen 117
2. Permanent Resident or Protected Person 117
3. Foreign National 117
[§8.10] Record Suspensions and Pardons 118
1. Record Suspensions 118
2. Pardons 118

Criminal Procedure
 (viii)

APPEALS

APPEALS: SUMMARY CONVICTION OFFENCES

[§9.01] Legal Framework 119
[§9.02] Procedure 119
1. Jurisdiction 119
2. Documents and Timelines 119
3. Extension of Time to Appeal 120
4. Pre-Hearing Conferences and Applications for Directions 121
[§9.03] Uncommon Forms of Appeal 121
[§9.04] Bail Pending Appeal 121
[§9.05] Hearing the Appeal 121
1. Grounds of Appeal 121
2. The Hearing 121
[§9.06] Orders 121
[§9.07] Further Appeals for Summary Convictions 122

APPEALS: INDICTABLE OFFENCES

[§9.08] Governing Provisions 122
[§9.09] Notice of Appeal 122
[§9.10] Grounds of Appeal 123
1. From Conviction 123
2. From Acquittal 123
3. From Sentence 123
[§9.11] Bail Pending Appeal 123
1. Bail Pending Appeal From Conviction 123
2. Bail Pending Appeal From Sentence 123
3. Review of Initial Decision 124
4. Bail Pending New Trial 124
[§9.12] Extension of Time to File 124
[§9.13] Transcripts and Appeal Books 124
[§9.14] Factums 124
[§9.15] Abandonment 125
[§9.16] Setting Down the Hearing 125
[§9.17] Raising a New Issue on Appeal 125
[§9.18] The Appeal Hearing 125
1. Appeals From Conviction 125
2. Appeals From Acquittal 126
3. Appeals From Sentence 126
[§9.19] Miscellaneous Appeal Provisions 126

APPENDIX--NOT AVAILABLE IN ONLINE VERSION

Appendix 3 – Appellate Flowchart 127

Criminal Procedure
 1
Chapter 1 or from the CBABC Lawyers’ Directory, published an-
nually by the BC Branch of the CBA.
Defence counsel should be aware that many prosecutors
are willing to assist them, if asked, by discussing proce-
Criminal Law and Practice1 dural questions and other matters of mutual concern.

[§1.03] Essential Resources

Lawyers who intend to practice criminal law must be
[§1.01] Introduction to These Materials
familiar with a wide variety of statutory, regulatory, evi-
These materials follow a generally chronological order. dentiary, procedural and administrative materials.
The materials start with the initial steps in a criminal All criminal law lawyers must have at least one current
file, when a person is accused of a crime and consults a annotated Criminal Code, R.S.C. 1985, c. C-46. Mar-
lawyer. From there, the materials cover bail principles, tin’s Annual Criminal Code and Tremeear’s Annual
trial practice, sentencing, and appeals. These materials Criminal Code (both from Thomson Reuters) are the
also address the Youth Criminal Justice Act as a separate most commonly used versions. These annotated Codes
chapter (Chapter 7). include the following statutes:
Criminal Code
[§1.02] Current Awareness
Canada Evidence Act
One excellent way to stay current in criminal law is to be Canadian Charter of Rights and Freedoms
active in local Criminal Justice Subsections of the BC
Branch of the Canadian Bar Association (CBA) and to Controlled Drugs and Substances Act
attend section meetings. These meetings bring together Youth Criminal Justice Act
Crown and defence counsel to discuss current issues.
Judges often attend or serve as speakers. For infor- Tremeear’s also includes other useful statutes such as
mation, contact the CBA in Vancouver at 604.687.3404 the DNA Identification Act, the Firearms Act and the
or through their website (www.cba.org). Interpretation Act. Martin’s includes an “Offence Grid”
and Tremeear’s includes “Offence Tables,” all of which
Lawyers should also attend courses and seminars are useful in setting out possible sentences and ancillary
relating to the practice of criminal law, like those hosted orders for each offence.
by the Continuing Legal Education Society of BC. The
materials produced for these programs are topical, and While these publications are useful tools, counsel should
materials from courses conducted in previous years are never assume that they always set out the current provi-
also available. Courthouse Libraries BC also provides sions of the Criminal Code. Legislative amendments are
webinars, both live and in their online archives. ongoing, and it is impossible to keep an annual text
completely current. Supreme Court of Canada and Brit-
The Federation of Law Societies of Canada provides an ish Columbia Court of Appeal decisions can also affect
excellent educational opportunity each summer. The Na- substantive and procedural criminal law at any time.
tional Criminal Law Program presents, in alternating Criminal law lawyers need to stay informed of both leg-
years, a Substantive Law Program and a Criminal Evi- islative reforms and court decisions affecting the practice
dence and Procedure Program. of criminal law.
Criminal law lawyers seeking practice advice, including In addition to an annotated Code, criminal law lawyers
on ethical issues, should consider contacting senior de- should know and access the Criminal Rules of the Su-
fence or Crown counsel, a Law Society Practice Advi- preme Court of BC, the Provincial Court of BC Criminal
sor, or the CBA’s Criminal Practice Advisory Commit- Caseflow Management Rules and the BC Criminal Ap-
tee. The Committee consists of senior criminal counsel peal Rules, 1986. These rules govern criminal practice in
who are prepared to give guidance. The names of current the various levels of court. They are supplemented by
members of the Committee are available from the CBA practice directions published on the courts’ websites.
Most of these rules and practice directions are compiled
1
in the British Columbia Rules of Court and Related En-
Micah Rankin, Crown Counsel, Prosecution Support Unit, kindly
revised this chapter in April 2021; it has since been updated by
actments, published by the Queen’s Printers for British
PLTC. This chapter was previously revised by Joseph J. Blazina Columbia, and can also be found in BC Annual Criminal
(2016, 2018, and 2019), and by Tina L. Dion in 2002 for Aborigi- Practice (Thomson Reuters).
nal law content.

Criminal Procedure
 2
It is essential that counsel carefully review the practice Canadian Criminal Cases (C.C.C.)
directives prepared by the superior courts and updated Martin’s Annual Criminal Code
from time to time. In 2022 many Court of Appeal prac-
tice directives that apply to both civil and criminal mat- Supreme Court of Canada Judgments (Lexum)
ters (such as “Appearing Before the Court” and “Citation Tremeear’s Annual Criminal Code
of Authorities” were updated as part of a transition to a Weekly Criminal Bulletin (W.C.B.)
new Court of Appeal Act, 2021 S.B.C. c. 6, and Rules.
For criminal practice in the Court of Appeal, see the cur- CLE Criminal Case Digests
rent practice directives at www.bccourts.ca/
Court_of_Appeal/practice_and_procedure/ 2. Criminal Procedure
Criminal_Practice_Directives_/index.aspx. Ewaschuk, E.G., Criminal Pleadings and Practice in
Online services and websites also afford access to rele- Canada, 2nd ed. Toronto: Thomson Reuters (loose-
vant legislation and case law. Specialized criminal-law leaf).
content is available online from LexisNexis’s Quicklaw Gold, A.D., The Practitioner’s Criminal Code, 2020
service in their “Criminal Essentials” package, and from ed. Toronto: LexisNexis, 2019.
Carswell’s Westlaw service in their “Criminal Source” Hamilton, K., Judicial Interim Release—Bail Manual,
package. Portions of the LexisNexis and Carswell ser- 4th ed. Toronto: LexisNexis (loose-leaf).
vices are available for free at BC Courthouse Libraries.
Kenkel, J.F., Criminal Lawyers’ Trial Book. Toronto:
CanLII provides free access to case law and statutory
LexisNexis (loose-leaf).
materials. Provincial and federal statutes are available
online (www.bclaws.ca and www.laws.justice.gc.ca/). McEwan, J.K., Sopinka on the Trial of an Action, 3rd
The Courts of British Columbia website contains recent ed. Toronto: LexisNexis, 2016.
judgments and court schedules, as well as court policies, Pearson, Jeffrey E. and Lori A. Thompson, Criminal
procedures and rules (www.bccourts.ca). Court Services Procedure: Canadian Law and Practice, 2nd ed.
Online, BC’s electronic court registry, allows users to Toronto: LexisNexis (loose-leaf).
search for upcoming court dates by client name or court Quigley, Tim, Procedure in Canadian Criminal Law,
file number (justice.gov.bc.ca/cso/index.do/). 2nd ed. Toronto: Thomson Reuters (loose-leaf).
Note that during the COVID-19 pandemic, there have Salhany, The Honourable R.E., Canadian Criminal
been several procedural changes in the courts. For cur- Procedure, 6th ed. Toronto: Thomson Reuters (loose-
rent protocols, consult practice directives issued by the leaf).
courts relating to matters such as court protocols, sched-
Salhany, The Honourable R.E., Criminal Trial Hand-
uling, filing, and remote appearances. Effective Janu- book. Toronto: Thomson Reuters (loose-leaf).
ary 14, 2023, An Act to Amend the Criminal Code and
the Identification of Criminals Act and to Make Related Watt, D., and J. Di Luca, Carswell’s Forms and Prec-
Amendments to Other Acts (Covid-19 Response and edent Collection: Criminal Law Precedents, 2nd ed.
Other Measures), S.C. 2022 c. 17 is in force. It address- Toronto: Thomson Reuters (loose-leaf).
es options to appear by videoconference or telephone,
options to seek warrants by telephone, and remote jury 3. Evidence
selection. (a) Generally
Fuerst, Michelle, et al, Sopinka, Lederman &
[§1.04] Further Reading Bryant – The Law of Evidence in Canada, 5th ed.
Listed below are law reports, texts and loose-leaf ser- Toronto: LexisNexis, 2018.
vices for the working library of a criminal law lawyer. Gibson, John L., and Henry Waldock, Criminal
These resource materials are available through the vari- Law Evidence, Practice and Procedure. Toronto:
ous branches of the BC Courthouse Library Society and Carswell (loose-leaf).
in the libraries of the law schools in the province. Hageman, Cecilia, et al, DNA Handbook, 2nd ed.
Toronto: LexisNexis, 2008.
1. Annotated Codes, Digests and Reports
Paciocco, David M. et al, The Law of Evidence,
British Columbia Law Reports: Criminal Cases 8th ed. Toronto: Irwin Law, 2020.
Canada Supreme Court Reports Rose, David and Lisa Goos, DNA: A Practical
Criminal Reports (C.R.) Guide. Toronto: Carswell (loose-leaf).
Canadian Abridgment: Criminal Law Digest
Crankshaw’s Criminal Code of Canada
Criminal Procedure
 3
Salhany, The Honourable R.E., The Practical Drinking and Driving Offences, 5th ed. Toronto:
Guide to Evidence in Criminal Cases, 8th ed. To- Carswell (loose-leaf).
ronto: Carswell, 2013. Segal, M., Manual of Motor Vehicle Law, 3rd ed.
Segal, M., Disclosure and Production in Toronto: Carswell (loose-leaf).
Criminal Cases. Toronto: Carswell (loose-leaf). Segal, M., Motor Vehicle Reports. Toronto: Car-
Tanovich, David, et al , McWilliams’ Canadian swell.
Criminal Evidence, 5th ed. Toronto: Carswell
(loose-leaf). (c) Drugs
Watt, David, Watt’s Manual of Criminal Brucker, Theresa M., The Practical Guide to the
Evidence 2020. Toronto: Carswell. Controlled Drugs and Substances Act, 4th ed.
Toronto: Carswell, 2008.
Wigmore on Evidence (the most-cited historical
treatise, available on Heinonline.org). MacFarlane, Bruce A., KC, et al, Cannabis Law.
Toronto: Canada Law Book, 2018.
(b) Search and Seizure MacFarlane, Bruce A., KC, et al, Drug Offences
Fontana, James, and David Keeshan, The Law of in Canada, 4th ed. Toronto: Canada Law Book
Search and Seizure in Canada, 11th ed. Toronto: (loose-leaf).
LexisNexis, 2019.
5. Canadian Charter of Rights and Freedoms
Hutchison, Scott C., Hutchison’s Search Warrant
Manual 2015. Toronto: Carswell. Asma, Matthew and Matthew Gourlay, Charter Rem-
edies in Criminal Cases: A Practitioner’s Handbook.
Hutchison, Scott C., Search and Seizure Law in Toronto: Emond, 2018.
Canada. Toronto: Carswell (loose-leaf).
Dunn, Melanie, and Andrew Bernstein, Canadian
4. Substantive Law Charter of Rights Annotated. Toronto: Canada Law
Book (loose-leaf).
(a) Generally
McLeod, R.M., KC, et al, Canadian Charter of
Barrett, J. and Shandler, R., Mental Disorder in Rights: The Prosecution and Defence of Criminal and
Canadian Criminal Law. Toronto: Carswell Other Statutory Offences. Toronto: Carswell (loose-
(loose-leaf). leaf).
Coughlan, S., et al, Annual Review of Criminal Stuart, Don. Charter Justice in Canadian Criminal
Law 2017. Toronto: Carswell. Law, 7th ed. Toronto: Carswell, 2018.
Gibson, John L., and Henry Waldock, Canadian
Criminal Code Offences. Toronto: Carswell 6. Advocacy
(loose-leaf). (a) Witnesses
Gordon, John M., and Susan Brown, Working Levy, Earl J., KC, Examination of Witnesses in
Manual of Criminal Law. Toronto: Carswell Criminal Cases, 7th ed. Toronto: Carswell,
(loose-leaf). 2016.
Manning, Morris, and Peter Sankoff, Manning, Mewett, Alan W., KC, and Peter Sankoff,
Mewett & Sankoff – Criminal Law, 5th ed. Witnesses. Toronto: Carswell (loose-leaf).
Toronto: LexisNexis, 2015.
Salhany, The Honourable R.E., et al, Cross-
Stuart, D., Canadian Criminal Law: A Treatise, Examination: The Art of the Advocate, 4th ed.
7th ed. Toronto: Carswell, 2014. Toronto: LexisNexis, 2016.
(b) Drinking and Driving (b) Jury Trials
Gold, Alan D., Defending Drinking, Drugs and Der, Balfour KC, The Jury—A Handbook of
Driving Cases 2019. Toronto: Thomson Reuters, Law and Procedure. Toronto: LexisNexis
2019. (loose-leaf).
Jokinen, Karen, and Peter Keen, Impaired Ferguson, G.A., et al, Canadian Criminal Jury
Driving and other Criminal Code Driving Instructions (CRIMJI). Vancouver: CLEBC,
Offences: A Practitioner’s Handbook. Toronto: 2019 (online).
Emond, 2018.
McLeod, R., KC, et al, Breathalyzer Law in (c) Appeals
Canada: The Prosecution and Defence of Bennett, Elizabeth, Indictable Appeals in
British Columbia. Toronto: Carswell, 1995.

Criminal Procedure
 4
Karimjee, Moiz, Issues in Criminal Trials and
Summary Appeal Law, 2nd ed. Toronto:
LexisNexis, 2018.
Gelowitz, Mark, et al, Sopinka and Gelowitz
on the Conduct of an Appeal, 4th ed.
LexisNexis Canada, 2018.

7. Sentencing
Nemet-Brown, S., Canada Criminal Sentencing Di-
gest. LexisNexis Canada (loose-leaf).
Nadin-Davis, P., and C. Sproule, Canadian
Sentencing Digest Quantum Service. Toronto:
Carswell (loose-leaf).
Green, Ross Gordon, Justice in Aboriginal
Communities: Sentencing Alternatives. Ottawa:
Canadian Electronic Library, 2016.
Ruby, C., et al, Sentencing, 9th ed. Toronto:
LexisNexis, 2017.

8. Youth Criminal Justice

Bala, Nicholas, and Sanjeev Anand, Youth Criminal
Justice Law, 3rd ed. (Toronto: Irwin Law, 2012).
Direnfeld, Rochelle, et al, Annotated Youth Criminal
Justice Act, 2nd ed. Toronto: LexisNexis (loose-leaf).
Harris, Peter J., and Miriam H. Bloomenfeld, Youth
Criminal Justice Act Manual. Toronto: Carswell
(loose-leaf).
LexisNexis, Youth Criminal Justice NetLetter.
Tustin, L. and R. Lutes, KC, A Guide to the Youth
Criminal Justice Act, 2020/2021 ed. Toronto:
LexisNexis, 2019.

Criminal Procedure
 5
(e) attendance to all matters up to conclusion of
Chapter 2 preliminary hearing—no further services;
(f) responsibility for the whole of the case (this is
the most common situation); or
Preliminary Matters1 (g) responsibility for several charges against the
same accused (also a very common situation).
A general introduction by a lawyer at a court ap-
This chapter deals with preliminary matters in a criminal pearance implies that the lawyer is prepared to see
case, including taking the case and bail. the matter through to the conclusion of the case. It
is important that seeing the matter through to the
An Act to amend the Criminal Code, the Youth Criminal conclusion of the case include compliance with the
Justice Act and other Acts and to make consequential Criminal Caseflow Management Rules (“CCFM
amendments to other Acts, S.C. 2019, c. 25 (former Rules”) as amended (available on the Provincial
Bill C-75) made changes to the bail regime. These Court website: www.provincialcourt.bc.ca). The
changes came into force on December 18, 2019. Among CCFM Rules are designed to manage adult and
other things, the changes increase the types of conditions youth criminal cases in Provincial Court. The
that police can impose on an accused person, provide CCFM Rules set out the obligations and expecta-
guidance on bail conditions, and require that the bail tions of Crown counsel, defence counsel and the
court consider the circumstances of Indigenous accused court for required pre-trial court appearances. An
and accused from vulnerable populations. example of a pre-trial appearance is an arraignment
hearing. See Chapter 3 for more on the CCFM
[§2.01] Taking the Case Rules.
It is best practice that a lawyer who acts for a client
A lawyer’s first decision concerning a criminal matter only in a limited capacity should promptly disclose
will be whether to take the case. This decision can be the limited retainer to the court and to any other in-
made irrevocably at the outset, or it may be reserved to a terested person in the proceeding, if failure to dis-
later stage in the proceedings or even depend upon com- close would mislead the court or that other person.
pletion of certain conditions. The lawyer may take on the See also the Code of Professional Conduct for Brit-
entire case until completion or take on a limited part of ish Columbia (the “BC Code”), section 3.2-1.1
the proceedings only. (“Limited Scope Retainers”).
1. Services the Lawyer Provides 2. Factors to Consider
These services are commonly provided: In deciding whether to take a case, the lawyer
(a) interview with the accused or associate of the should consider several factors:
accused—preliminary advice given and no (a) the nature of the charge and the complexity of
further services provided; the case, including whether the lawyer is
(b) attendance for a police interview of the competent in that area of law;
accused who is surrendering on a warrant—no (b) the probable time required, and the lawyer’s
further services; workload;
(c) attendance to all matters up to conclusion of (c) the amount of the fee, and the prospects of
bail hearing—no further services; being paid;
(d) application for a Rowbotham order, obliging (d) whether the client is in custody, and if so,
the state to pay for or make a contribution to whether the location is remote;
the cost of the accused’s defence;
(e) the effect of the case on the position of the
lawyer in the community;
(f) the position of the client in the community as
1
Ellen Leno, Administrative Crown Counsel, Vancouver Provin- it affects the position of the lawyer in the
cial Crown Counsel, kindly revised this chapter in February case;
2023 and December 2020. Previously revised by Mornè Coetzee
(2019); Baljinder Girn (§2.10 in 2019); Ellen Leno (2017); (g) the lawyer’s relationship with others involved
Adrienne V. Lee (2011 and 2012); Richard Hewson (2006); in the case, including the judge, prosecutor,
Kenneth D. Madsen (2003–2005); Thomas E. Burns (1996– victims, relatives, witnesses, co-accused, co-
2002); and Bronson Toy (1994). Reviewed by Tina L. Dion in
2002 for Aboriginal law content.

Criminal Procedure
 6
counsel, etc. (i.e. whether there are any (c) the client’s address, telephone number and
conflicts of interest); contact details;
(h) whether the client previously retained other (d) bail information if the client is in custody; and
counsel for this matter; and
(e) copies of any documents in the client’s
(i) proceeds of crime legislation and anti-money possession, which may include:
laundering rules (see Practice Material:
(i) the release order (Form 11);
Professionalism: Practice Management,
Chapter 7, for more on this topic). (ii) Certificate of Qualified Technician, in
impaired driving cases involving a
The weight given to these and other factors will
breath sample; and
vary in each case. For example, a lawyer might de-
cide not to defend a client who has a history of fir- (iii) in impaired driving cases, a Notice of
ing counsel just before hearings (see h. above), or a 24-Hour Prohibition, and Notice of 90-
lawyer in a small town may decide against defend- Day Administrative Driving Prohibition.
ing a local accused because of the lawyer’s relation-
ship with others in the case (see item g. above). The lawyer should also obtain general background
information about the client:
3. Information and Communication
(a) age (and possibly birth date) and birthplace;
There are many ways to establish the solicitor-client
relationship. Often, the client initiates the relation- (b) present address (own or rent), past addresses
ship by contacting the lawyer directly or through an (how long at each);
intermediary such as a friend or relative. Legal aid
(c) employment history, and current employer’s
administrators might contact the lawyer who has
name, position held, etc.;
registered to provide legal aid services. When the
client contacts the lawyer directly, the lawyer may (d) marital status, length of marriage, children,
immediately begin considering the case and wheth- etc.;
er to accept it. If an intermediary is involved, the
(e) notable family—names, ages, sex, etc.;
lawyer’s first task is to determine whether the in-
termediary has authority and is accurately repre- (f) friends and other roots in the community;
senting the wishes of the client. The lawyer should
(g) education and training;
make every effort, as soon as possible, to confirm
that the client wants the lawyer to consider taking (h) clubs, social and religious affiliations, etc.;
the case. In addition, instructions received through
(i) criminal record;
intermediaries must be confirmed with the client, as
soon as possible. Court proceedings may be delayed (j) psychiatric history;
and counsel may be embarrassed when there is con-
(k) summary of financial position; and
fusion about who (if anyone) is acting as counsel, or
if there is uncertainty about the lawyer’s instruc- (l) health problems (might affect trial date).
tions. These difficulties occur less often when the
lawyer deals directly with the client. It may be unwise in the initial stages to ask the
accused for their version of the circumstances of the
Prompt, direct contact with clients is always im- offence. Confine your inquiry at this stage to
portant to reassure them that their interests are be- obtaining background details.
ing addressed. This is critical with clients who are
in custody. In practice, telephone contact can al- 4. Gathering Details of the Case
most always be made at any detention facility, alt- When a client has been released by the police, other
hough the lawyer may have to leave a message and information from the police may not be available
wait a few minutes for the client to call back. until after charges have been approved by Crown
The initial contact with the client can vary from a counsel. Documents that should be obtained as soon
short telephone message to a full interview. What- as possible after that time include the following:
ever contact is made, certain information must be (a) The court registry number for the file (which
obtained from the client immediately: may be obtained from the daily court list).
(a) the full legal name of the client, and the name (b) The sworn Information (Form 2) showing the
under which the client is charged; registry file number, the charges and the date
(b) the date, time and location of the next court the charge was laid. A copy is usually
appearance; available from the court clerk or from the
prosecutor at one of the initial appearances.

Criminal Procedure
 7
(c) Particulars of the Crown’s case against the least, of having to withdraw from representing one
accused (also known as circumstances—see of them if the respective interests of the co-accused
§3.03). The lawyer should also obtain the later conflict. Counsel should also consider whether
criminal record of the client and any prior relationships with others involved in the file,
statements the client made, including verbal such as victims, creates a conflict. Counsel must be
statements recorded by the police. alive to such potential difficulties from the outset to
avoid putting themselves and their clients at risk.
(d) Informations to Obtain Search Warrants
(Form 1) and copies of the search warrants Considering the above information and concerns
themselves. will help a lawyer to decide whether or not to repre-
sent a particular client. Ideally, the lawyer will take
(e) Copies of all documents in the possession of
the entire case. In some circumstances, however,
the Crown, including:
lawyers can only say with confidence that they will
(i) notices pertaining to certificates, greater proceed to specific stages, where they will have to
penalties, etc.; reconsider the matter.
(ii) certificates themselves (Certificate of Although it is possible to accept a case with mini-
Qualified Technician, fingerprint, drug mal information, it is advisable to be as well in-
analysis, etc.); formed as possible when deciding to accept the cli-
ent’s case. Further interviews with the client are of-
(iii) written statements by the accused and
ten difficult to arrange, so it is best to interview the
witnesses;
client thoroughly and carefully at the beginning.
(iv) business records, such as invoices, etc.; The client’s background information not only famil-
iarizes the lawyer with the client but will be useful
(v) experts’ reports (e.g. handwriting
in later proceedings. For example, it may be useful
examinations);
at a bail hearing, may come out if the client gives
(vi) photographs, plans, etc.; and evidence at trial, or may be used when making
submissions on sentence. In addition to its court-
(vii) psychiatric or other medical reports.
room uses, the background information may help
For some of these documents to be admissible at the lawyer in other ways.
trial, the Crown must give the defendant notice of If the client is Indigenous, their experiences with in-
its intention to produce the document. If notice has tergenerational trauma from the effects of coloniza-
not been served, defence counsel may not want to tion or residential school may be relevant in making
alert the Crown to the oversight by requesting cop- Gladue submissions or requesting a Gladue report.
ies of the documents. Bail or sentencing of Indigenous people may be
Some counsel suggest that at the initial interview, heard in one of BC’s Indigenous Courts (also called
counsel should explain the charge and give the cli- “First Nations Courts” or “Gladue courts”). See
ent a brief outline of the possible defences to the “First Nations/Indigenous Courts” at aborigi-
charge, together with a request that the client make nal.legalaid.bc.ca. Also, the Native Courtworker
notes immediately on everything relevant that oc- Program may be able to assist or provide the client
curred. It is particularly important that the client try with culturally appropriate resources. See
to recall statements made by or to the police; infor- www.nccabc.ca.
mation about how many police officers were pre- If the client’s background includes psychiatric his-
sent (and their names or identification numbers, if tory or mental health issues, the Forensic Psychiat-
known); names and addresses of other witnesses; ric Services Commission provides court-ordered as-
and information specific to the charge. Such infor- sessments including assessments of fitness to stand
mation might include, for instance, the client’s eat- trial and evaluations of criminal responsibility.
ing and drinking patterns if the charges concern im-
paired driving, or a history of arguments if the Obtaining particulars, notices and documents will
charges involve assaults. These notes may help re- be dealt with later in these materials as part of prep-
fresh the client’s memory if the client is called to aration for trial. Gather this information early to
testify. help you decide whether to represent the client, as-
sess the costs of representation, and give the client a
5. Further Considerations well-informed opinion about how best to proceed
The issue of conflict of interest requires attention at with the matter.
this stage. Generally, it is best to avoid acting for
more than one accused in the same matter. Counsel
who interview co-accused run the risk, at the very

Criminal Procedure
 8
6. Retainer charge. If a summons is issued, the accused is not taken
into custody.
Once the lawyer decides to represent the client, it is
prudent to prepare a written retainer so that client The following are the processes by which an accused
and lawyer both know exactly what service is being may initially be compelled to attend court:
provided at what cost. Bonus billing occurs in only
1. appearance notice (Criminal Code, ss. 496, 497,
the rarest of criminal cases (see Campney & Mur-
499, 500; Offence Act, s. 39);
phy v. Arctic Installations (Victoria) Ltd. (1994), 86
B.C.L.R. (2d) 226 (C.A.)). A retainer agreement 2. undertaking given by the accused to a peace of-
should also contain provisions for contingencies, ficer (Criminal Code, ss. 498, 499, 501);
such as non-payment of fees.
3. summons (Criminal Code, ss. 509);
Lawyers who want to withdraw in a criminal matter
4. warrant (Criminal Code, ss. 512, 512.1, 512.2,
should be mindful of R. v. Cunningham, 2010 SCC
512.3); or
10, in which the court sets out the circumstances
under which a lawyer may withdraw from acting for 5. arrest without warrant (Criminal Code, s. 495).
a client. When the withdrawal is for non-payment
of fees the court may exercise its discretion to re- Generally, police or court authorities prepare these
fuse to allow the withdrawal. There is also an obli- documents without lawyers intervening. The documents
gation to advise the court and other parties of your should be examined for errors: non-compliance with the
withdrawal: see the BC Code, sections 3.7-1 to forms prescribed in Part XVI may mean that jurisdiction
3.7-10 and Practice Material: Criminal Procedure, is lost. However, jurisdiction can usually be regained by
§3.23. issuing a new process. Section 485 is a broad curative
provision with respect to questions of loss of
When the retainer is to be arranged through legal jurisdiction.
aid, counsel must be sure that the client has filled
out the appropriate documents and has been ap- The recent amendments streamlined the means by which
proved for funding. Counsel who intend to act on an accused could be compelled to attend court. The
legal aid retainers must have a billing number. amendments also legislate a principle of restraint for
Counsel may obtain a billing number by contacting peace officers and courts in making decisions about
Legal Aid BC. In some courthouses, including release or bail:
Vancouver, there is a onsite legal aid worker who Principle of restraint
can assist the accused with their application. 493.1 In making a decision under [Part XVI-
Once the lawyer has gathered all the necessary in- Compelling Appearance of Accused before a Justice
formation, obtained preliminary instructions, decid- and Interim Release] a peace officer, justice or judge
ed to represent the client, and been retained, often shall give primary consideration to the release of the ac-
the next step is to consider the custody status of the cused at the earliest reasonable opportunity and on the
least onerous conditions that are appropriate in the cir-
client. cumstances, including conditions that are reasonably
practicable for the accused to comply with, while taking
[§2.02] Compelling Appearance and Judicial into account the grounds referred to in subsection
Interim Release (Bail) 498(1.1) or 515(10), as the case may be.

Two issues arise immediately when an individual is al- This provision reflects the Supreme Court of Canada’s
leged to have committed an offence: how to make the decision in R. v. Antic, [2017] 1 SCR 509, where the
accused aware of the charge, and how to compel the ac- court summarized the “ladder principle” of bail: “[T]he
cused to appear to answer the charge. The bail provi- ladder principle means ‘that release is favoured at the
sions in Part XVI of the Criminal Code are concerned earliest reasonable opportunity and . . . on the least oner-
with securing attendance of the accused to answer the ous grounds’” (Antic at para. 29, citing R. v. Anoussis,
charge. They should be read in detail. 2008 QCCQ 8100). See also R. v. Zora, 2020 SCC 14,
which reiterated the need for restraint, with the default
When the police arrest an individual (with or without position being bail without conditions. When bail condi-
warrant) the police will want to ensure that the accused tions are imposed, they must be necessary, reasonable,
will attend court to answer the charge. For this purpose, and linked to the grounds of detention under s. 515(10)
the police are authorized to release the accused, provided (i.e. securing the accused’s attendance in court, ensuring
they follow the procedures in the Criminal Code. the protection or safety of the public, and maintaining
In some circumstances the court issues a summons to confidence in the administration of justice). Any bail
compel the accused to attend in court to answer the conditions imposed should be the least onerous neces-
sary to address the risks listed in s. 515(10).

Criminal Procedure
 9
Section 493.2 requires that the circumstances of Indige- ance notice or undertaking may also require the accused
nous accused and of accused from vulnerable popula- to attend for fingerprinting and photographing pursuant
tions be considered in making decisions about interim to the Identification of Criminals Act, R.S.C. 1985,
release or bail: c. I-1.
Aboriginal accused or vulnerable populations The Criminal Code authorizes the police to release indi-
493.2 In making a decision under this Part, a peace viduals on an undertaking taken before a peace officer;
officer, justice or judge shall give particular attention see ss. 499(2). The intent of these sections is to expedite
to the circumstances of the release of accused individuals. The recent amend-
(a) Aboriginal accused; and ments increase the types of conditions peace officers can
impose on accused persons.
(b) accused who belong to a vulnerable population
that is overrepresented in the criminal justice The undertaking must include a condition that the ac-
system and that is disadvantaged in obtaining cused attend court at the time and place stated in the un-
release under this Part. dertaking. The additional potential conditions that can be
imposed on the accused by an undertaking include the
[§2.03] Release by Police following (s. 501(3)):
Section 498 of the Criminal Code sets out the powers of (a) report at specified times to the peace officer or
a peace officer to release a person who has been arrested other specified persons;
without a warrant for an offence other than one listed in (b) remain within a specified territorial jurisdiction;
s. 469. (Section 469 lists certain serious offences includ-
ing murder, treason and war crimes). The peace officer (c) notify the peace officer or other specified person of
must, as soon as practicable, release the person from cus- any change in their address, employment or occu-
tody if: pation;
(a) the peace officer intends to compel the person’s (d) abstain from communicating, directly or indirectly,
appearance by issuing a summons; with any victim, witness or other person identified
in the undertaking, except in accordance with any
(b) the peace officer issues an appearance notice to the specified conditions;
person; or
(e) abstain from going to any specified place or enter-
(c) the person gives an undertaking to the peace ing any geographic area related to any person re-
officer (s. 498(1)). ferred to in paragraph (d), except in accordance
This mandatory release is subject to s. 498(1.1); that is, with any specified conditions;
the peace officer must not release the person if the peace (f) deposit all their passports with the peace officer or
officer believes on reasonable grounds that the detention other specified person;
is necessary in the public interest considering all of the
circumstances, including because release would impair (g) reside at a specified address, be at that address at
the ability to identify the person arrested, the ability to specified hours and present themselves at the en-
preserve evidence relating to the offence, the ability to trance of that residence to a peace officer or other
prevent the continuation or repetition of the offence, or specified person, at the officer’s or specified per-
the ability to ensure the safety of a victim or witness to son’s request during those hours;
the offence. (h) abstain from possessing a firearm, crossbow, pro-
The mandatory release provisions also do not apply if hibited weapon, restricted weapon, prohibited de-
the offence is one described in s. 503(3), which deals vice, ammunition, prohibited ammunition or ex-
with arrest without a warrant for an indictable offence plosive substance, and surrender those that are in
allegedly committed in Canada but outside the arresting their possession to the peace officer;
jurisdiction. (i) promise to pay an amount specified in the under-
Also, a peace officer may release an individual arrested taking, which shall not be more than $500, if they
with a warrant for an offence other than one listed in fail to comply with any condition of the undertak-
s. 469, if the peace officer issues an appearance notice to ing;
the person or the person gives an undertaking to the (j) deposit, with the peace officer specified in the un-
peace officer (s. 499). The warrant must be endorsed in dertaking, money or other valuable security whose
order for the police to release the accused. The required value does not exceed $500 if, at the time of giving
contents of an appearance notice are set out in s. 500 and the undertaking, the accused is not ordinarily resi-
the required contents of an undertaking are set out in dent in the province or does not ordinarily reside
s. 501. Both release procedures must compel the accused within 200 kilometres of the place in which they
to appear in court (s. 500(1)(c); s. 501(2)). The appear- are in custody; and

Criminal Procedure
 10
(k) comply with any other specified condition for en- 2. Procedure at the Bail Hearing
suring the safety and security of any victim of or
The Crown can consent to release on certain terms
witness to the offence.
which can be agreed upon with defence. Part XVI
Section 502 provides mechanisms for modifying the uses the term “justice” to describe the individual
conditions of the undertaking. The undertaking may be presiding at a bail hearing. In British Columbia, a
varied at any time with the written consent of the prose- justice can be a Judicial Justice, a Provincial Court
cution and the accused. In the absence of consent be- judge, a Supreme Court judge, or a judge of the
tween the prosecution and the accused, either may apply Court of Appeal (Provincial Court Act, s. 30(3)).
to a justice to replace the undertaking. If the prosecution
The justice presiding at a bail hearing is typically a
is making the application, the prosecution must give
Provincial Court judge, unless the hearing is
three days’ notice to the accused.
outside regular court hours. However, only a
When an individual is arrested and detained by police at Supreme Court judge has jurisdiction to grant bail
a time when the court is not sitting (weekends, evenings, on offences listed in s. 469 (which include certain
or holidays), bail applications are addressed through the serious charges such as murder, treason, and crimes
Justice Centre by Judicial Justices (“JJs,” addressed in against humanity). On these charges, the accused is
court as “your worship”). Crown counsel in British detained under s. 515(11), bail must be sought by
Columbia are available outside of court sitting hours to petition to the Supreme Court (s. 522), and the onus
participate in bail hearings. In these instances, is on the accused to show why detention is not
conference calls are set up with the JJ to address bail. justified.
Crown counsel or the accused can apply to adjourn the
When the accused is charged with an offence other
hearing to the next court date, or the Crown may seek to
than one listed in s. 469, the judge presiding at the
remand the accused to custody pursuant to s. 516, for no
bail hearing is governed by s. 515(1). The accused
more than three clear days (unless the accused consents
(who does not plead guilty) will be released without
to longer). See the Provincial Court Practice Direction,
conditions, unless the Crown shows cause why
CRIM 05 Hearing of Bail Applications (09 January
there should be conditions on release. If the judge
2023).
does not release the accused without conditions un-
der s. 515(1), then the accused will be released with
[§2.04] Release by the Court conditions under s. 515(2), unless the Crown shows
cause why detention is justified.
1. Objectives
3. Release Orders
Sometimes the accused will not be released by the
peace officer and will be brought before the court Under s. 515(2), the judge making a release order
for a hearing. The hearing determines judicial with conditions may order that the accused comply
interim release and is referred to as a “bail hearing” with any of the conditions listed in s. 515(4), which
or a “show cause hearing.” are generally as follows:
The purpose of a bail hearing is to determine if con- (a) report at specified times to a peace officer or
tinued detention of the accused is justified. other person designated in the order;
Generally, the presumption is against detention, and (b) remain within a specified territorial jurisdic-
the Crown must show cause why continued deten- tion;
tion is necessary according to the grounds listed in
(c) notify a peace officer or other person desig-
s. 515(10), that is, to ensure that the accused will at-
nated in the order of any change in their ad-
tend court, to protect the public, or to maintain con-
dress, employment or occupation;
fidence in the administration of justice. If the
Crown cannot satisfy the onus on at least one (d) abstain from communicating with any victim,
ground, the accused is entitled to release on reason- witness or other person identified in the order,
able bail, and the outcome of the bail hearing is re- except in accordance with any conditions the
stricted to how the accused is to be released (on justice specifies;
what conditions, if any).
(e) abstain from going to any place or entering
However, for certain offences, the onus is on the any geographic area specified in the order,
accused to show why the grounds do not justify de- except in accordance with any conditions the
tention—this applies to offences listed in s. 469 and justice specifies;
offences listed under s. 515(6), described later in
(f) deposit all their passports;
this chapter.
(g) comply with any other specified condition
that the justice considers necessary; or

Criminal Procedure
 11
(h) comply with any other reasonable conditions no-communication or other conditions should be in-
specified in the order that the justice considers cluded (s. 515(4.2)).
desirable.
The release order is in Form 11 and includes the
The order may also include any of the following conditions that apply to the accused, consequences
(s. 515(2)): for non-compliance, and any financial obligations
included in the order (such as a promise to pay a
(a) an indication that a release order does not in- specified amount if the accused fails to comply with
clude any financial obligations; the conditions). The Form 11 is signed by the ac-
(b) the accused’s promise to pay a specified cused; any surety (if applicable); and the judge, jus-
tice, or clerk of the court.
amount if they fail to comply with a condition
of the order; As stated in the Form 11, the conditions of the re-
lease order may be varied with the written consent
(c) the obligation to have one or more sureties, of the accused, Crown, and any sureties (s. 519.1),
with or without the accused’s promise to pay or the accused or Crown may apply to the court to
a specified amount if they fail to comply with have a condition in the release order cancelled or
a condition of the order; changed.
(d) the obligation to deposit money or other valu- Counsel should discuss appropriate bail conditions
able security in a specified amount or value, before the bail hearing, because most judges are
with or without the accused’s promise to pay sympathetic to joint bail submissions, and consent
a specified amount if they fail to comply with releases can be worked out with Crown. The court
a condition of the order; or has wide discretion as to what evidence or circum-
stances to consider (s. 518(1)(a), as discussed in R.
(e) if the accused is not ordinarily a resident in v. Cheung, 2016 BCCA 221).
the province in which they are in custody, or
does not ordinarily live within 200 kilometres 4. Detention
of the place in which they are in custody, the Under s. 515(10), the detention of an accused is jus-
obligation to deposit money or other valuable tified only on the following grounds:
security in a specified amount or value, with
or without the accused’s promise to pay a (a) the primary grounds, where the detention is
specified amount by the justice if they fail to necessary to ensure the accused’s attendance
in court;
comply with a condition of the order and with
or without sureties. (b) the secondary grounds, where the detention is
necessary for the protection or safety of the
The Crown has the onus of proving each additional public, including any victim or witness,
condition under s. 515(2) from (b) to (e) is neces- having regard to all the circumstances
sary. Section 515(2.01) provides: including any substantial likelihood that the
The justice shall not make an order containing the accused will, if released from custody,
conditions referred to in one of the paragraphs commit a criminal offence or interfere with
(2)(b) to (e) unless the prosecution shows cause the administration of justice; and
why an order containing the conditions referred to
in the preceding paragraphs for any less onerous (c) the tertiary grounds, where the detention is
form of release would be inadequate. necessary in order to maintain confidence in
the administration of justice, having regard to
Any condition must relate to ensuring the attend- all the circumstances, including:
ance of the accused, preventing further offences or (i) the apparent strength of the prosecu-
ensuring there is no interference with the course of tion’s case;
justice, or the safety and security of any victim or
witness. (ii) the gravity of the offence;
The court must include a firearms prohibition as a (iii) the circumstances surrounding its com-
bail condition for certain offences, unless the court mission including whether a firearm was
considers the condition is not required for the safety used; and
of the accused or the safety or security of a victim (iv) the potential for a lengthy term of im-
of the offence or another person. For offences listed prisonment or, in an offence that in-
in s. 515(4.3) the court must consider the safety and volves a firearm, a minimum punish-
security of victims and witnesses and determine if ment for a term of three years or more.

Criminal Procedure
 12
See R. v. St. Cloud, 2015 SCC 27, for the frame- ing, failure to comply with a condition under a
work of the tertiary grounds. Though it is only release order, etc.) that is alleged to have been
listed in the tertiary grounds under s. 515(10)(c), committed while they were at large after be-
many judges consider the strength of the Crown’s ing released; or
case in determining an appropriate form of bail.
(d) the accused is charged with an offence pun-
As noted earlier in this chapter, the onus is usually ishable by imprisonment for life under any of
on the Crown to show why the continued detention ss. 5–7 of the Controlled Drugs and Sub-
of the accused is necessary. However, the onus is stances Act or conspiring to commit such an
on the accused to show why they should not be de- offence.
tained in the following “reverse onus” situations
In reverse onus situations it is customary for the
under s. 515(6):
Crown to proceed first, although the court can re-
(a) the accused is charged with an indictable of- quire the defence to proceed first. The Crown usual-
fence other than an offence listed in s. 469: ly outlines the facts of the most recent alleged of-
fence, the accused’s record of criminal convictions,
(i) alleged to have occurred while the ac-
and the outstanding charges that give rise to the re-
cused was at large after being released
verse onus, and then indicates the Crown’s position
for another indictable offence;
on bail. Defence counsel replies to the allegations
(ii) as a participant in a criminal organiza- of the Crown regarding the circumstances of the
tion; present offence and submits that, for the reasons
outlined, the accused has shown cause why further
(iii) that is a terrorism offence;
detention in custody is not required.
(iv) that is an offence under s. 16(1) or (2),
Defence counsel’s argument in a bail hearing
17(1), 19(1), 20(1) or 22(1) of the Secu-
should be that the accused’s detention is not neces-
rity of Information Act;
sary to ensure the accused’s attendance in court, to
(v) that is an offence under certain other prevent the commission of further offences, or to
sections of the Security of Information maintain confidence in the administration of justice.
Act committed in relation to an offence Counsel should organize the facts to support the ar-
referred to in (iv); gument. If it appears that Crown counsel is only re-
lying on one ground, defence counsel might ask the
(vi) that is an offence under s. 99, 100 or 103
judge, “Do you wish me to argue on the other
of the Criminal Code;
grounds, or are you satisfied that my client is not
(vii) that is an offence under certain sections likely to fail to appear?” The judge may then indi-
and is alleged to have been committed cate that the court’s only concern is on a specific
with a firearm; or ground and counsel can confine argument to that is-
sue. Remember that the best strategy for obtaining
(viii) that is alleged to involve a firearm or
bail is to present a realistic alternative to detention,
other listed item while the accused was
and that strict bail conditions are preferable to no
under a prohibition order within the
bail.
meaning of s. 84(1);
Before making submissions at the bail hearing, it is
(b) the accused is charged with an indictable of-
important to do as much groundwork as possible to
fence other than an offence listed in s. 469,
assist the court and present a workable alternative to
and the accused is not ordinarily a resident in
detention. For example, make telephone calls to de-
Canada;
termine if the client is acceptable for bail supervi-
(b.1) the accused is charged with an offence in the sion, eligible (where available) for Native Court-
commission of which violence was allegedly worker services, able to reside at a particular place,
used, threatened or attempted against their in- etc. Also canvass with the client whether alterna-
timate partner, and the accused has been pre- tives such as curfews or area restrictions are ac-
viously convicted of an offence in the com- ceptable (will they conflict with work or resi-
mission of which violence was used, threat- dence?) and investigate whether acceptable sureties
ened or attempted against any intimate partner are available. If the client has mental health issues,
of theirs; you may wish to consult the local Forensic Outpa-
tient Client as to what services they might provide,
(c) the accused is charged with an offence under
or talk to the onsite mental health worker about re-
ss. 145(2)–(5) (e.g. failure to attend court,
sources or have them meet with your client to as-
failure to comply with an appearance notice or
sess their fitness (where available). There are men-
summons, failure to comply with an undertak-
tal health workers at the Vancouver Provincial

Criminal Procedure
 13
Courthouse and at Downtown Community Court out in R. v. Woo (1994), 90 C.C.C. (3d) 404
who can assist. It may also be useful to have family (B.C.S.C.).
or friends of the accused in court to reassure the
The evidentiary burden upon the Crown during a
court that responsible people are concerned about
bail hearing is the balance of probabilities (R. v.
the accused and able to provide support. Client in-
Julian (1972), 20 C.R.N.S. 227 (N.S.S.C.)). The
formation forms may also be useful in interviewing
burden is on the accused in reverse onus situations.
and speaking to bail.
Especially in a serious case, it may be useful to file [§2.05] Bench Warrants, Judicial Referral
letters at the bail hearing to establish that the ac- Hearings, and s. 524 Hearings
cused has a place to live, a place to work, and a
good reputation in the community. An accused who succeeds in obtaining initial judicial
interim release may (and often does) return to custody
Even if the accused is already detained on other
on the charge. The most common situation is when an
charges, or is in custody serving a sentence, they
accused fails to attend court and a bench warrant is is-
may seek bail on the new charge under s. 515. Of
sued under ss. 512, 512.1 or 512.2.
course, if bail is granted it does not become effec-
tive until detention on the other charges ends. Another situation that commonly arises is that an ac-
cused breaches conditions of their release or commits
When a new Information is sworn charging an ac-
other administration of justice offences. Recent amend-
cused with the same offence as the original Infor-
ments to the Criminal Code introduced a new process,
mation or an included offence (additional charges
the judicial referral hearing, to address these circum-
may be added), the bail order made on the original
stances. The judicial referral hearing is intended to re-
Information continues to apply to the new Infor-
duce the number of prosecutions for certain administra-
mation under s. 523(1.1). In such circumstances, ei-
tion of justice offences. As an alternative to laying
ther the Crown or defence may apply under
charges, if a peace officer has reasonable grounds to be-
s. 523(2)(c), without the consent of the other party,
lieve that the accused has failed to comply with a sum-
to vary the original order. The release order may al-
mons, appearance notice, undertaking or release order,
so be varied with the written consent of the accused,
or to attend court as required, the peace officer may issue
Crown, and any sureties (s. 519.1). While the Crim-
an appearance notice to the accused to appear at a judi-
inal Code allows for this to be done in writing, as a
cial referral hearing under s. 523.1 (s. 496). At the judi-
practical matter it is dealt with on the record in
cial referral hearing, if the judge or justice finds that the
court and not in writing through the registry.
accused failed to comply with the summons, appearance
On cases that are likely to attract some notoriety, notice, etc., but that the failure did not cause harm to a
counsel should consider applying under s. 517 for victim, the judge or justice can review the accused’s re-
an order prohibiting publication of the evidence lease conditions and take no action, release the accused
taken at a bail hearing. on new conditions, or detain the accused.
A more detailed list of relevant factors for both reg- Where there are reasonable grounds to believe an ac-
ular and reverse onus show cause bail hearings ap- cused has contravened (or is about to contravene) a
pears at §2.12 of this chapter. Although the check- summons, appearance notice or undertaking, or has
list is designed for Crown counsel making submis- committed an indictable offence while on release, a
sions at the bail hearing, the factors outlined are peace officer can arrest the accused without a warrant
equally pertinent to defence counsel and of interest under s. 495.1 for the purpose of bringing them before a
to the judge at the bail hearing. judge or justice to be dealt with under s. 524. A justice
may also issue a warrant on this basis under s. 512.3 to
5. Evidence
require the accused to appear before a justice under
Sections 518(1)(a)–(e) set out the material on which s. 524. At the s. 524 hearing, the Crown will seek to
the justice may base a decision at a bail hearing. have the accused’s earlier release cancelled under
The justice may receive and base the decision on s. 524(3).
evidence considered “credible or trustworthy” by
the justice in the circumstances of each case. This [§2.06] Charges in Other Jurisdictions
includes evidence ordinarily inadmissible at trial
(such as hearsay) so long as the other party has a An accused may be arrested without warrant on the basis
fair opportunity to correct or contradict it (Re that a peace officer has information that there is an out-
Powers v. R. (1972), 9 C.C.C. (2d) 533 (Ont. standing warrant for an indictable offence in another
H.C.)). Both the common practice and the formal province, or in another part of British Columbia. If the
requirements for “evidence” on bail hearings are set alleged offence took place outside the province but with-
in Canada, the justice will usually remand the accused in

Criminal Procedure
 14
custody for six days under s. 503(3) to await the execu- (f) does not have sufficient funds, in the opinion of
tion of the warrant and the arrival of an escort of peace the justice, to satisfy any order should the ac-
officers from the other province. If the escort of peace cused default on their appearance; or
officers has not arrived by the sixth day, the accused
(g) is the lawyer for the accused (R. v. Orme (1980),
must be released. In this situation, the original warrant
4 W.C.B. 357 (Ont. Co. Ct)).
has never been executed or cancelled. The warrant is still
active, and the accused may be arrested again later. While the determination of a suitable surety is usually
left to the justice of the peace, s. 515(2.1) allows the
As an alternative to a six-day remand, the accused may
judge who makes the bail order to name particular per-
be released pending execution of the warrant if the pros-
sons as sureties in the bail order.
ecutor consents under s. 503(3.1). Counsel may want to
contact the originating jurisdiction to discuss a consent Before a person can be named as a surety, they must sign
release. a declaration in Form 12. The declaration includes such
information as the surety’s contact information and their
When dealing with an outstanding warrant from another
acknowledgement that they understand the role and re-
area in the province, most jurisdictions grant a three day
sponsibilities of a surety (see s. 515.1(1)). Exceptions to
adjournment to the prosecution under s. 516(1) to allow
this requirement are listed under s. 515.1(2).
a police escort to attend to execute the warrant and
transport the accused to the issuing jurisdiction (see R. v. When the accused later wants to change sureties,
Ragan (1974), 21 C.C.C. (2d) 115 (B.C. Prov. Ct.)). s. 767.1 allows the court to substitute another suitable
Provincial Court judges increasingly are exercising their person for the original surety without taking the accused
province-wide jurisdiction under the Provincial Court into custody again. Otherwise, when any change is made
Act to conduct show cause hearings on offences from to a surety bail, the accused will be remanded in custody
other areas of the province. This eliminates the need to until the surety agrees to accept the altered bail. Prudent
transport the accused before the bail hearing but reduces counsel will ensure someone arranges easy contact with
local involvement. the surety whenever a bail change is likely.
The justice may allow the accused to appear at the show Section 766(1) gives power to a surety to be relieved of
cause by telephone or video conferencing (s. 515(2.2)). obligations under a recognizance by obtaining an order
This procedure offers an alternative to transporting the from a justice of the peace to have the accused arrested.
accused. Consent of all parties is required if evidence is
Defence counsel should be extremely cautious about
to be taken from a witness and the accused cannot ap-
contacting potential sureties. Defence counsel must
pear by video conferencing (s. 515(2.3)).
make it clear they are representing the accused and
should not pressure potential sureties nor guarantee that
[§2.07] Sureties the accused will comply with the conditions of release.
Some counsel refuse to contact potential sureties, while
A surety is generally a person who ensures that another
others limit their contact to a message that the accused
person is going to do something. A surety is a kind of
has asked them to telephone and make the request.
security, and typically a surety posts money as security
Counsel should warn the surety of the consequences
for the obligations of that other person.
should the accused breach their recognizance, and em-
In the bail context, the primary obligations of a surety phasize that the decision is the surety’s alone. Prudent
are to ensure that the accused appears in court for the counsel will suggest to the potential surety that the sure-
trial or other appearance, and keeps out of trouble. A ty obtain independent legal advice.
surety’s responsibilities are outlined under ss. 515.1(1)
Note also the following BC Code provisions with respect
and 764.
to a lawyer acting as a surety:
If a judge or justice directs release of an accused with Judicial interim release
one or more sufficient sureties, those sureties must be
acceptable to the court. A person is typically unaccepta- 3.4-40 A lawyer must not act as a surety for, deposit
ble as a surety if the person: money or other valuable security for, or act in a super-
visory capacity to an accused person for whom the
(a) has a previous criminal record; lawyer acts.
(b) is acting as a surety for someone else; 3.4-41 A lawyer may act as a surety for, deposit money
or other valuable security for or act in a supervisory
(c) is charged with a criminal offence; capacity to an accused who is in a family relationship
(d) is a co-accused; with the lawyer when the accused is represented by the
lawyer’s partner or associate.
(e) is being indemnified for acting as a surety (e.g. a
bail bondsperson);

Criminal Procedure
 15
[§2.08] Bail Variations in Provincial Court [§2.09] Bail Reviews in Supreme Court
The accused or Crown may apply to have the original
In limited circumstances, the original order may be re-
bail order reviewed under ss. 520 and 521, on applica-
visited and modified in Provincial Court. In practice,
tion to the Supreme Court. A bail review is like an ap-
very few, if any, Provincial Court judges will interfere
peal of the original bail order.
with the order of another judge, unless there has been a
major change in circumstances. Even then, some Provin- On a bail review the onus is on the appellant to show
cial Court judges will request that the matter go back that the judge who fixed the original bail made an error
before the judge who presided at the bail hearing. in law or principle, that circumstances have changed, or
that it would be unjust not to order release (R. v. Vukel-
Non-consensual bail variations are possible in two situa-
ich (1993), 32 B.C.A.C. 81).
tions. First, if the accused is before the Provincial Court
judge before whom the accused is being or is to be tried The accused also can bring an application for certiorari
in the future, that judge can change bail under to quash a bail order (Re Keenan v. The Queen (1979),
s. 523(2)(a). Second, a Provincial Court judge can 57 C.C.C. (2d) 267 (Que. C.A.)). This procedure permits
change bail once the preliminary inquiry is completed a further appeal to the Court of Appeal.
under s. 523(2)(b). In each of these instances, the prose-
Applications are also the possible under the Charter, as
cutor does not need to consent. The judge can only vary
previously noted.
bail in relation to the matter being dealt with in the trial
and not for other outstanding matters. The Supreme Court cannot review a bail decision made
by a judge under s. 522 with respect an offence listed in
If Crown counsel consents to a bail variation, then
s. 469; such decisions must be reviewed under s. 680 by
s. 523(2)(c) applies and the Provincial Court judge who
the Court of Appeal.
made the original order, or any other judge, may make
an order. Most bail variations in the Provincial Court
[§2.10] Section 525 Detention Reviews
occur under this section. Some prosecutors will consent
to rehearing bail but oppose the change that is sought. If
When an accused has been charged with an offence other
the prosecution, any sureties, and the accused consent in
than an offence listed in s. 469 and has been in custody
writing to the variation of the bail, then s. 519.1 permits
for 90 days, the court must review bail in order to deter-
a written variation without any court appearance; how-
mine whether the accused should be released.2 The re-
ever, as a practical matter, the applications are dealt with
view under s. 525 is automatic—the accused is not re-
in court on the record.
quired to apply.
When an application is made under s. 523 and the bail is
Section 525 obligates the “jailer” (the person having cus-
varied, then, subject to the Lee case below, no bail re-
tody) to apply for the detention review hearing immedi-
view on that order can be taken to the Supreme Court: R.
ately upon the expiration of 90 days following the day
v. Archambeault (1980), 20 C.R. (3d) 157 (B.C.S.C.). If
on which the accused was initially taken before a justice
no variance is made in the original order, further bail
under s. 503. Section 525 also obligates the judge to fix
review can be taken in the Supreme Court. Consequent-
a hearing date.
ly, defence counsel applying under s. 523 may want to
suggest to the presiding judge that, if the original bail In R. v. Myers, 2019 SCC 18, the Supreme Court of
will not be substantially changed, the presiding judge Canada held that the “overarching question” for a re-
exercise discretion not to deal with the original bail, ra- viewing judge to consider is whether “the continued de-
ther than substituting the judge’s own order and poten- tention of the accused in custody [is] justified within the
tially ousting the jurisdiction of a higher court to review meaning of s. 515(10).” The accused is not required to
bail. In R. v. Lee (1982), 69 C.C.C. (2d) 190 (B.C.S.C.), show that there has been “unreasonable delay” in pro-
the court held that Archambeault does not apply if the ceeding to trial in order to have a review hearing, alt-
accused has been denied the right to reasonable bail un- hough it is a factor that can be considered by the review-
der s. 11(e) of the Charter and that under s. 24 of the ing judge.
Charter a Supreme Court judge may vary the bail order.
The hearing is a “review” of the detention. As such, def-
A judge cannot vary a bail order on the judge’s own mo- erence will be afforded for any findings of fact made by
tion, although this is sometimes unlawfully done after the initial decision-maker. However, the reviewing judge
committal on a preliminary hearing. The judge can only is entitled to consider the lapse of time and any other
order the accused into custody “upon cause being
shown” (R. v. Braithwaite (1980), 57 C.C.C. (2d) 351
(N.S.S.C.-A.D.)).
2 Prior to the coming into force of Criminal Code amendments (on
December 18, 2019), the threshold was 30 days for summary con-
viction offences; the amendments replaced this threshold with a 90-
day threshold for all offences.

Criminal Procedure
 16
relevant factors and can receive any evidence “consid- 1. Notice of Application
ered credible or trustworthy.” The reviewing judge can
The original plus one copy must be filed in the reg-
also rely upon the transcript, exhibits and reasons from
istry. There also must be a copy each for Crown and
any initial judicial interim release hearing and from any
defence (for a total of four). When filing bail review
subsequent review (Myers at para. 48).
applications, copies of all Informations relating to
Not all accused in custody are eligible for a s. 525 re- the charges for which the bail review is sought must
view hearing. In Myers, the court expanded those eligi- be filed along with the material for the application.
ble for a review hearing to include accused persons who See Applications for Bail Reviews (Supreme Court
have consented to remain in custody or chosen not to Practice Direction, 22 September 2005), available
have a bail hearing in the first instance. In these instanc- on the BC Supreme Court website (www.bccourts.
es, the judge is required to conduct the full bail hearing ca/supreme_court). An Information can be made an
“from the ground up” in accordance with the “ladder exhibit to the affidavit of the accused.
principle” articulated in Antic (see §2.02), taking into
The facts upon which the application is based must
account the time the accused has already spent in pre-
be in numbered paragraphs. Usually, these facts
trial custody (Myers at para. 56). The review can be
summarize the information in the affidavit of the
waived or a bail hearing court can simply occur in Pro-
accused or another person, or both. Finally, the ap-
vincial Court. As well, the phrase “other narrow circum-
plication must have details of the documents sup-
stances” referred to in Myers has since been interpreted
porting it—the affidavits.
to allow an accused to have a s. 525 hearing where bail
was granted but not yet perfected: R. v. Khafisov, 2019 2. Notice to Person(s) Served
BCSC 1088. However, those in custody during a trial or
The original plus one copy must be filed in the reg-
while awaiting sentencing continue to be ineligible for
istry. There also must be a copy each for Crown and
reviews under s. 525.
defence, for a total of four. This document is filed
In response to Myers, the BC Supreme Court instituted a and served with the application.
comprehensive interim Practice Direction CPD-4 on
3. Affidavit in Support
s. 525 hearings. Legal Aid BC has also published infor-
mation for defence counsel relating to s. 525 hearings. The original plus one copy must be filed in the reg-
istry. There also must be a copy each for Crown
[§2.11] Bail Review Documents (ss. 520 and defence, for a total of four. This document
and 521) should be filed and served with the application, alt-
hough this is often difficult when the accused is in
A bail review may be taken if the accused is detained or custody, or when a friend or relative is swearing an
cannot make the bail that has been set. Although a re- affidavit in support and is not available to swear the
view by the Supreme Court may be taken anywhere in affidavit before the documents are filed. Affidavits
British Columbia (s. 520), this practice is discouraged. that are anticipated should be referred to in the ap-
The general rule is that applications should be brought in plication as “such further material as counsel may
the location where the offence occurred (see Criminal advise.” The Crown usually does not object to doc-
Rules of the Supreme Court of British Columbia, Rule uments filed later, provided the Crown received an
2(4)). Exceptions will be considered when there are valid accurate unfiled copy earlier. The affidavit should
grounds for bringing the application elsewhere, particu- be in the usual form with information in numbered
larly when Crown and defence counsel have agreed to a paragraphs. (See the Supreme Court Civil Rules
change of location. Frequently, urgency and the availa- and the Practice Material: Civil for general rules
bility of a judge are the deciding factors in determining regarding affidavits.)
the appropriate venue for a bail review. 4. Transcript of Provincial Court Hearing
At least two clear days’ notice must be given to Crown The original must be filed in the registry. There
counsel. The Crown will frequently try to accommodate must be a copy each for Crown and defence, for a
the schedule of defence counsel, and some reviews have total of three. The transcript should be ordered im-
been set down on only a few hours’ notice. Short service mediately after the bail hearing to avoid delays. On
is permitted by s. 520(2). legal aid files it is necessary to get authority from
Once a review has been taken, a further review is pre- Legal Aid BC before bringing the application and
cluded for 30 days (s. 520(8)). especially before ordering the transcript. This au-
thority should be requested immediately, because
There are five documents required on a s. 520 and 521 there may be some delay.
bail review.

Criminal Procedure
 17
5. Order After Bail Review (g) criminal record:
If the application is successful, a fifth document is (i) outstanding charges under s. 145,
prepared. The successful party or the registry draws (ii) previous convictions for failing to appear
the order, if one is necessary. Attend the registry to or breach of probation;
determine if an order is necessary to secure the re-
lease. (h) addiction to alcohol, drugs and whether at-
tempts have been made at treatment;
If counsel must prepare an order, get instructions
from the registry staff about the appropriate lan- (i) employment status;
guage for the order. The opposing party must ap- (j) present environment:
prove the order as to form. Before you leave the
courtroom, find out where the other party will be (i) friends and relatives in the community,
over the next few hours, so that you may obtain (ii) whether living with spouse or family,
their signature. and
The order must state where bail is to be perfected. (iii) whether associating with known
Discuss this in detail with the registry staff. If you criminals;
want to be safe, you can specify in the order that
(k) character witnesses;
bail may be perfected in either the Provincial Court
registry or the Supreme Court registry. (l) circumstances of apprehension:
(i) did the accused surrender into custody,
[§2.12] Information for Bail Hearings and if not, why not;
Up-to-date criminal records should be secured for the (ii) was the accused fleeing from prosecution
bail hearing. Where the accused is on parole or proba- in this or another jurisdiction;
tion, these authorities should be consulted for infor- (iii) was the accused in breach of probation or
mation about whether the accused has been living up to parole;
the conditions of their parole, probation, etc.
(m) distance from the accused’s residence to the
The following is a suggested list of information (includ- court; and
ing the updated criminal record) that should be gathered
(n) history of the accused complying with past
by the Crown for bail hearings. The list is by no means
bail supervision orders.
exhaustive, nor will all the suggestions be relevant to
each bail hearing. Although written from the prosecution 2. Protection of the Public
perspective, it emphasizes areas of concern to the court
Section 515(10)(b)—detention for the protection or
that are frequently addressed by both counsel. Defence
safety of the public. This is sometimes referred to as
counsel will prepare for the show cause hearing by tak-
the “secondary” ground of detention. Relevant evi-
ing a more positive approach to the enumerated factors.
dence could include any of the following:
The list is only intended to provide some guidance.
(a) the accused’s criminal record:
1. Attendance
(i) how long since the last offence, how sim-
Section 515(10)(a)—detention necessary to ensure ilar it is to the current charge and wheth-
attendance in court. This is sometimes referred to as er it suggests a pattern;
the “primary” ground of detention. Relevant evi-
dence could include any of the following: (ii) circumstances of past offences may not
be evident from the record, so get as
(a) age; much information as possible (for exam-
ple, the record may identify assault but
(b) education; not the severity of the offence or the rela-
(c) place of residence; tionship to the victim, etc.);
(d) citizenship (is the accused a Canadian citizen, (b) circumstances of the current offence:
and if not, what roots has the accused in the (i) violence—whether the accused has a his-
community, and should their passport be tory of violence and, if so, whether it is
seized); associated with alcohol or drugs;
(e) assets in the community (ownership or rental (ii) victims—whether alleged victims were
of a home, general financial assets); known to the accused or were random
strangers; and
(f) potential consequences (or length of jail term)
if convicted of the offence charged;

Criminal Procedure
 18
(iii) property—whether the alleged offence ss. 517 and 539; Toronto Star Newspapers v. Canada,
includes property theft or damage, and if 2010 SCC 21).
so, the amount involved and whether the
property was recovered; [§2.14] Estreatment Procedures
(c) the accused’s known associations:
Part XXV of the Criminal Code governs estreatment
(i) is the accused a leader of a peer group or proceedings that may be taken by the Crown against the
known to influence potential offenders
who pose a risk in the community; principal (i.e. the accused) or the sureties (or both) if the
accused has defaulted on an undertaking, release order or
(ii) does the accused’s detention affect the recognizance. The judge hears the application by the
rate of serious crime in the community; Crown for an order against the principal or sureties to
(d) prior releases—if the accused was previously make them judgment debtors to the Crown under
released, did the accused stay out of trouble; s. 771(2). The judge will hear first from the Crown re-
garding the accused’s failure to appear at one or more
(e) impediments to investigation—has the ac- appearances. The judge will then hear from the principal
cused threatened witnesses or tried to prevent as to the reason for the failure to appear, and from the
a police investigation; sureties as to what efforts they made to ensure the ac-
(f) deliberation—whether the crime the accused cused’s appearance. The factors the court considers in
is charged with involved planning; determining whether or not to grant the order are set out
in R. v. Sahota (1979), 9 B.C.L.R. 385 (S.C.). Sureties
(g) risk of loss—would releasing the accused pre- should attend estreatment hearings because judges are
sent a significant risk to property, including frequently sympathetic to defences by the surety and
risks that counterfeit money could be distrib- may return all or part of the bail. This is especially true
uted, proceeds of crime could be laundered, or if some efforts were made by the surety to get the ac-
evidence could be destroyed; and cused to appear in court.
(h) any other outstanding charges.
[§2.15] Mental Disorder
3. Confidence in the Administration of Justice
1. Aspects to Consider
Section 515(10)(c)—detention to maintain confi-
dence in the administration of justice. This is some- This is a brief overview of a complex area of crimi-
times referred to as the “tertiary” ground of deten- nal procedure and law. If mental disorder is in is-
tion. Relevant evidence could include any of the sue, that may have consequences throughout the
following: file and the trial process:
(a) the apparent strength of the prosecution’s (a) on the initial appearance of the accused in the
case; Provincial Court for the bail hearing or the
initial appearance in a trial court (if there is a
(b) the gravity of the offence; concern regarding fitness, the accused can be
(c) the circumstances surrounding the commis- remanded for an overnight assessment as a
sion of the offence, including whether a fire- first step, seen by an onsite mental health
arm was used; and worker to assist in determining next steps, or
referred to the mental health bail program at
(d) the fact that the accused is liable for a poten- Downtown Community Court, where availa-
tially lengthy term of imprisonment, or where ble);
the offence involves a firearm, or carries a
minimum punishment of imprisonment of (b) on the return of an accused after an assess-
three years or more. ment made pursuant to an order under
s. 672.11 of the Criminal Code, or after a
[§2.13] Bans on Publication finding of fitness by a Review Board under
s. 672.48;
Publication bans may flow from statute or common law. (c) at any time during the preliminary hearing or
They can be automatic, mandatory (upon meeting pre- trial when the issue of mental disorder or fit-
conditions), or discretionary. Some bans are designed to ness to stand trial is raised; and
protect the accused’s the Charter rights, such as the pre-
sumption of innocence and right to a fair trial. These (d) at any time where there is evidence that the
include bans on the publication of the evidence taken at accused had a mental disorder at the time of
a bail hearing or preliminary inquiry (Criminal Code the offence.

Criminal Procedure
 19
An accused who has a mental illness may (or may The Criminal Code contains a presumption against
not) fall under any of these categories: custody during the assessment period, unless the
court is shown cause why custody of the accused is
(a) not “criminally responsible” as defined in
necessary (s. 672.16). The assessment order cannot
s. 16 of the Criminal Code;
direct the accused to undergo treatment (s. 672.19).
(b) “unfit to stand trial” as defined in s. 2 of the Treatment may, however, be given under the Men-
Criminal Code; or tal Health Act while the accused is being assessed,
if other prerequisites are met.
(c) involuntarily admissible to a health unit as a
person with a mental disorder under s. 22 of Once an accused returns from an assessment, the
the Mental Health Act. court may hold a fitness hearing. If the accused is
found to be fit, the trial proceeds as if the issue of
If the police officers involved consider that the fitness had never been raised. If the court returns a
behaviour of the accused or circumstances of the verdict of unfit, the court has four options:
alleged offence indicate that the accused might
have a mental disorder, the police officers will so (a) order a further assessment for up to 30 days
advise Crown counsel. As a result of this, or on under s. 672.11(d);
Crown counsel’s own initiative after reviewing the (b) order treatment of the accused for up to
circumstances of the offence, Crown counsel may 60 days under s. 672.58;
ask a doctor to examine the accused (see
s. 672.16(1)). In most cases, the doctor’s report will (c) proceed directly to a disposition hearing un-
address the fitness to stand trial criteria in s. 2 of der s. 672.45; or
the Criminal Code. (d) defer disposition to the Review Board, who
2. Fitness to Stand Trial must make its disposition within 45 days un-
der s. 672.47(1).
After an examination by a doctor (usually a general
practitioner), Crown counsel reviews the doctor’s Basically, the Criminal Code allows the court to
report. If the doctor is of the opinion that the ac- make the initial determination of fitness and an in-
cused is fit to stand trial, the matter proceeds. If, terim disposition, but gives the Review Board full
however, the doctor is of the opinion that the ac- jurisdiction over the unfit accused afterwards. Re-
cused is unfit to stand trial, Crown counsel or de- lease without conditions is not an option at this
fence counsel may apply to have the court order an stage. It is also the Review Board that determines
assessment under s. 672.11. Alternatively, the when the accused is fit to stand trial. The Review
Crown may seek to remand the accused in custody Board conducts an annual review of all persons
under s. 516. A doctor (usually a psychiatrist) may found not fit to stand trial or not criminally respon-
see the accused during the remand period and give sible. Appeals from decisions of the Review Board
evidence at a subsequent fitness hearing. go directly to the Court of Appeal.
The definition of “unfit to stand trial” is set out in 3. The Defence of Mental Disorder
s. 2 of the Criminal Code: Section 16(2) of the Criminal Code provides that
“unfit to stand trial” means unable on account of “[e]very person is presumed not to suffer from a
mental disorder to conduct a defence at any stage mental disorder so as to be exempt from criminal
of the proceedings before a verdict is rendered or responsibility . . . until the contrary is proved on the
to instruct counsel to do so, and, in particular, una- balance of probabilities.” “Mental disorder” is de-
ble on account of mental disorder to fined in s. 2 of the Criminal Code as a “disease of
(a) understand the nature or the object of the the mind.”
proceedings;
Under s. 16(1), the test is whether the accused has a
(b) understand the possible consequences of the disease of the mind to the extent that it renders the
proceedings; or accused incapable of appreciating the nature and
(c) communicate with counsel. quality of the act or omission, or of knowing that
The core question in a fitness assessment is whether the act or omission is wrong according to the
the accused is fit, and if not, can be treated or ren- ordinary moral standards of reasonable members of
dered fit within 60 days. society (R. v. Chaulk (1990), 62 C.C.C. (3d) 193
(S.C.C.), and R. v. Landry (1991), 62 C.C.C. (3d)
An assessment normally takes five days (travel 117 (S.C.C.)).
days are not counted), but with the consent of the
accused, the assessment order may be continued in In R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.),
force for up to 30 days. the Supreme Court of Canada fashioned a rule re-
garding when evidence of mental disorder can be

Criminal Procedure
 20
raised in a trial. Under the rule, the Crown may lead (c) directing that the accused be detained in cus-
evidence of mental disorder in only two circum- tody in a hospital designated under the Crim-
stances. inal Code by the provincial Minister of
Health.
(a) The Crown may raise the issue at the conclu-
sion of the trial after a verdict of guilt. At that 5. Sentencing—Minor Mental Illness
point, the Crown may lead evidence of men-
tal disorder, which evidence the trier of fact A psychiatric assessment may be helpful to the
will then consider in determining whether the judge sentencing an accused who has a mental ill-
proper verdict should be a conviction or a ness that does not give rise to the defence of
verdict of not guilty by reason of mental dis- NCRMD. In these circumstances and when request-
order. ed by the court, the Crown commonly arranges a
psychiatric examination and a medical report as part
(b) The Crown may lead evidence of mental dis- of a presentence report. Defence counsel may want
order if the defence puts mental capacity in a referral to a psychiatrist of their own choosing ra-
issue. ther than to a psychiatrist retained by the Forensic
Psychiatric Services Commission. In the latter sit-
The accused is entitled to raise the issue of mental
uation, the court does not pay for the psychiatric as-
disorder at any stage of the trial.
sessment and it does not form part of the presen-
The persuasive burden of showing that the accused tence report.
was suffering from a mental disorder at the time of
If the accused has a minor criminal record or none
the offence is on the person advancing it (R. v. Her-
at all, the circumstances of the offence are not seri-
bert (1954), 113 C.C.C. 97 (S.C.C.) and Chaulk).
ous, and the accused is a person with a mental dis-
Even if the Crown and the defence agree that the order as defined by the Mental Health Act, the
accused was not NCRMD, it is still up to the trier of Crown may decide to let the matter be dealt with as
fact to make the final decision on this issue. a medical problem and enter a stay of proceedings
Although the evidence of psychiatrists is important, once it is clear that a mental health facility will ad-
it is not determinative with respect to the issue of mit the accused.
whether or not the accused was suffering from a
“disease of the mind” (R. v. Rabey (1977), 37
C.C.C. (2d) 461 (Ont. C.A.), aff’d (1980), 54
C.C.C. (2d) 1 (S.C.C.)).
4. Disposition—Not Criminally Responsible
In determining whether the court or a Review Board
should make the initial disposition after a NCRMD
verdict, the following matters, set out in ss. 672.54,
672.5401 and 672.541, are to be considered:
(a) the safety of the public, which is the para-
mount consideration (see s. 672.5401);
(b) the mental condition of the accused;
(c) the reintegration of the accused into society
and the other needs of the accused; and
(d) the victim impact statement if one has been
filed.
Using these considerations, the court or Review
Board must make the disposition that is the least
onerous and the least restrictive. The options are as
follows:
(a) directing that the accused be discharged ab-
solutely;
(b) directing that the accused be discharged from
custody on conditions; or

Criminal Procedure
 21
Defence counsel should always remember that the onus
Chapter 3 is on the Crown to prove its case beyond a reasonable
doubt. Defence counsel should be cautious when enter-
ing into discussions or making requests for information,
Preparation for Trial1 because those actions might alert the Crown to deficien-
cies in the case that the Crown has overlooked.
Both Crown counsel and defence counsel should turn
[§3.01] Steps in Preparing their minds at an early stage in the proceedings to pre-
serving evidence—especially witnesses’ memories.
This chapter canvasses the practical and legal issues that Failure to preserve evidence early can result in the loss
counsel must address before proceeding to a trial of a of material that only assumes significance later in the
criminal case. It includes description of some of the mo- case. Crown counsel will request that the police obtain
tions and applications that may be appropriate before the statements from all relevant witnesses. Defence counsel
trial or hearing begins. should ensure that statements from possible defence wit-
nesses are obtained at the earliest opportunity. When the
Each case is unique and will have its own requirements client can afford it, defence counsel may also consider
and features that counsel must deal with. However, there retaining the services of a private investigator to conduct
are broad common steps that counsel should take in eve- interviews of key witnesses as quickly as possible.
ry case. This chapter describes these steps in the most
typical sequence. Several steps may also be occurring Defence counsel may also want to visit the scene of the
contemporaneously. alleged offence before it changes (if possible). Ultima-
tely, a visit may reveal inconsistencies or impossibilities
[§3.02] Preparation Generally in the Crown’s evidence at trial. Photographs or video
recordings of the scene may be useful as long as there is
Preparation is the key to effective and competent presen- a witness for either the Crown or defence (preferably
tation of a case on behalf of a client to the court. It also other than the accused) who can identify the scene and
will establish a positive reputation with other counsel, testify that the visual aids accurately depict the scene at
judges of the court, and clients. A good reputation is one the time of the alleged offence (in terms of distance,
of counsel’s most valuable assets. size, lighting, etc.).
Trial counsel must always be prepared for the unex- Both Crown and defence counsel should also try to iden-
pected and recognize very few trials unfold exactly as tify legal issues as early as possible so that the law can
anticipated. The goals of preparation generally are as be researched and factual underpinnings explored.
follows: Crown and defence counsel should carefully read the
statute under which the accused is charged, paying atten-
1. ensuring that the client fully understands what tion to sections containing definitions, presumptions,
choices and options are available, and the pros procedures and penalties. These sections may be in dif-
and cons of those alternatives; ferent sections of the statute than the offence section.
2. understanding as thoroughly and completely as
possible what evidence exists against the client in [§3.03] Disclosure of Particulars
support of the charges that the client is facing;
1. Purpose
3. anticipating and being prepared for all the legal is-
sues that might arise during the trial, and the fac- The onus is upon the Crown to prove its case
tual issues that the trier of fact will have to deter- against the accused.
mine at the conclusion of the trial; and The common law and the Code of Professional
4. identifying any evidence that may be required for Conduct for British Columbia (the “BC Code”) es-
presentation during the case and presenting that tablish the Crown’s obligation to disclose all rele-
evidence efficiently and effectively. (This in- vant information in its possession to an accused.
cludes witnesses, real evidence, documents, pho- This obligation is also constitutionally entrenched
tographs, etc.) in s. 7 of the Charter (see §6.08(3) regarding the
Charter and the right to disclosure). The duty of
Crown counsel to provide full disclosure was can-
1
vassed at length by the Supreme Court of Canada in
Revised by Ann Seymour, Administrative Crown Counsel, BC
Prosecution Service, in December 2020. Previously revised by
R. v. Stinchcombe, [1991] 3 S.C.R. 326 and R. v.
Mornè Coetzee (2019); Christie Lusk (2017); Lesley Ruzicka McNeil, 2009 SCC 3.
(2005, 2008, 2010 and 2012); D. Allan Betton (2006); Kenneth
D. Madsen (2003 and 2004); Thomas Burns (1995–2002); and
Bronson Toy and Thomas Burns (1994). Reviewed in 2002 by
Tina Dion for Aboriginal law content.

Criminal Procedure
 22
2. Content 3. How and When to Request Particulars
Subject to certain limits, the Crown is under a gen- When the police have concluded their investigation
eral duty to disclose all relevant information in its of a matter, they will submit a document entitled a
possession or control, regardless of whether the ev- Report to Crown Counsel, which is used by the
idence is inculpatory or exculpatory (R. v. Chaplin, Crown in the charge approval process. Once charg-
[1995] 1 S.C.R. 727 at 739). Relevant information es have been laid, those particulars are available to
includes not only information related to those mat- the defence.
ters the Crown intends to adduce in evidence
Initial disclosure should occur before the accused is
against the accused, but also any information in re-
called upon to elect the mode of trial or plead:
spect of which there is a reasonable possibility that
Stinchcombe at para. 28. The Provincial Court’s
it may assist in the exercise of the right to make full
Criminal Caseflow Management Rules (the “CCFM
answer and defence.
Rules”) require the Crown to make the disclosure
The BC Code requires the Crown to disclose all rel- required by law at the initial appearance or as soon
evant facts and known witnesses, whether tending as practicable after it, and fuller and better disclo-
to show guilt or innocence. Crown counsel should sure as it becomes available or as required by law,
disclose evidence regardless of whether Crown but in a timely manner (Rule 6).
counsel intends to adduce it. The information need
Counsel must obtain initial disclosure at the earliest
not be credible nor capable of becoming evidence
opportunity. It is impossible to interview the ac-
itself. See rules 2.1-1, 5.1-3 and commentary [1]
cused properly, and difficult to conduct a proper ar-
to 5.1-3.
raignment hearing or estimate the length of the
At the initial disclosure stage, the particulars will hearing accurately, without reviewing the particu-
generally include the Report to Crown Counsel and lars (see §3.11–§3.13 on pleas, elections and re-
copies of witness statements, police notes, exhibits, elections).
any statement made by the accused, and a copy of
While it may be expedient to make verbal requests
the accused’s criminal record. The particulars may
for disclosure from the Crown, defence counsel
also include photographs, audio and video tapes,
should consider making a well-crafted written
and relevant police disciplinary records (see
disclosure request. A complete and thorough
McNeil). Defence counsel should closely review the
written request for disclosure crystallizes some of
Report to Crown Counsel to determine if other
the Crown’s obligations, and the written request can
items are relevant and should be requested. Often,
serve as a very useful tool if disclosure issues arise
many of the documents referred to in §3.04 (court
as the trial approaches, or during the course of a
records, transcripts) will be included.
trial. Defence counsel should include requests for
Defence counsel should also obtain copies of notic- all business and medical documents in the written
es or certificates if the Crown intends to produce request for particulars.
them in court. The client might have these docu-
If, after reviewing the initial particulars, defence
ments, but counsel should ensure they are complete.
counsel determines that additional disclosure is re-
Defence counsel should also obtain from the prose- quired, defence counsel should request those partic-
cutor a copy of any psychiatric or doctor’s report ulars from Crown counsel in a timely manner.
concerning the accused that has been prepared at
In Provincial Court, if the Crown does not agree
the request of the Crown.
that the disclosure is required or does not respond to
In certain cases, documents from businesses or fi- a request in good time, the CCFM Rules specify
nancial institutions will be produced in court. When that an application may be brought to a judge for
counsel anticipates this, counsel should obtain cop- “directions” or for “further and better disclosure.”
ies of these documents. The accused and defence Applications for further disclosure must be brought
counsel are entitled to inspect any documents that in a timely manner (Rule 6).
the Crown will produce under the business records
At the BC Supreme Court, outstanding requests for
exception to the hearsay rule (s. 30(7) of the Cana-
disclosure can also be addressed at a pre-trial con-
da Evidence Act).
ference (see Chapter 4, §4.03), although any actual
The Crown has a continuing obligation to provide pre-trial applications for disclosure must be brought
disclosure throughout the proceedings. Further, the in accordance with the Criminal Rules of the Su-
Crown’s obligation to provide disclosure extends preme Court of British Columbia, SI/97-140
beyond the trial. In the appellate context, the Crown (Rule 2).
is required to disclose any information where there
Courts may be unsympathetic to complaints that full
is a reasonable possibility that it may assist the ap-
disclosure has not been made where the defence has
pellant in prosecuting an appeal: McNeil.
not pursued disclosure in a timely manner: Stinch-

Criminal Procedure
 23
combe at para. 24; R. v. Bramwell (1996), 106 agency) stands on the same “first party” footing as
C.C.C. (3d) 365 (B.C.C.A.), aff’d (1996), 111 the Crown for the purpose of fulfilling its obligation
C.C.C. (3d) 32 (S.C.C.). to provide the Crown with all relevant material per-
taining to its investigation of the accused, the po-
Requests for further disclosure may arise at any
lice and Crown are unquestionably separate and in-
stage of the proceedings. For example, cross-
dependent entities, both in fact and in law.
examination at the preliminary inquiry of the police
Information in the possession of the police or other
officer in charge of the investigation may reveal in-
government departments that is unconnected to the
formation not previously known to the defence that
investigation giving rise to the charges (such as
triggers disclosure obligations.
criminal investigation files involving third parties)
4. Limitations generally falls outside of the scope of first party
disclosure, and its production will instead be gov-
Crown counsel does retain some discretion to delay
erned by the third party “O’Connor” regime:
or refuse disclosure on the basis that the material
McNeil at paras. 13, 22–25.
sought is beyond the control of the Crown, clearly
irrelevant, privileged, or falls within one of the stat- Notably, information about maintenance of breatha-
utory exceptions to the general rules relating to lyzers was formerly subject to first party Stinch-
prosecutorial disclosure (see Stinchcombe, Chaplin, combe disclosure, pursuant to R. v. Phangura, 2010
McNeil, and ss. 278.1–278.9 of the Criminal Code). BCSC 944. The Supreme Court of Canada in 2018
Further, the Crown retains discretion as to the man- decided that such information is subject to the rules
ner and timing of the disclosure where the circum- for information in the hands of third parties. An ac-
stances are such that disclosure in the usual course cused must apply to court and show the documents
may result in harm to anyone or prejudice to the are likely relevant in order to obtain them: R. v.
public interest. For example, non-disclosure may be Gubbins, 2018 SCC 44.
justified based on public interest immunity, such as
The Crown does have a role to play in “bridging the
police informer privilege (see e.g. R. v. Kelly
gap” between first party disclosure and third party
(1995), 99 C.C.C. (3d) 367 (B.C.C.A.)). Withhold-
production. The Crown, in fulfilling its Stinch-
ing or delaying production of information may also
combe disclosure obligations, does not have to
be justified out of concern for the security or safety
make inquiries of every state authority. However, if
of witnesses or persons who have supplied infor-
the Crown is “put on notice” about the existence of
mation to the investigation, or to protect the identity
relevant information in the hands of other agencies
of police officers engaged in an ongoing investiga-
pertaining to the case against the accused, or to the
tion: Stinchcombe at paras. 16, 22.
credibility or reliability of a witness in the case, the
The Crown’s disclosure obligation to the defence Crown has a duty to make reasonable inquiries of
extends only to “first party” records or “Stinch- those other Crown agencies or departments and, if it
combe disclosure,” also referred to as the “fruits of is reasonably feasible to do so, obtain the infor-
the investigation.” This is material relating to the mation: McNeil at paras. 13, 48–51.
accused’s case in the possession or control of the
Where the accused is seeking disclosure of third
prosecuting Crown entity: McNeil at para. 22. The
party records, and the third party asserts that the
investigating police force (or other investigating
documents are either not relevant or attract a priv-
state authority) has a corresponding obligation to
acy interest, defence counsel must bring a formal
provide the Crown with all relevant material per-
third party records application for production of the
taining to its investigation of the accused. There-
information: see McNeil at para. 27. The procedure
fore, it is not open to Crown counsel to explain a
to be followed on a third party records application is
failure to disclose this material on the basis that the
as follows (see McNeil):
investigating police force failed to disclose it:
McNeil at paras. 14, 24. 1. The accused first obtains a subpoena duces te-
cum under ss. 698(1) and 700(1) of the Crimi-
The Crown’s disclosure obligation to defence does
nal Code and serves it on the third party record
not extend to “third party records” (i.e. information
holder. The subpoena compels the person to
in the hands of other government agencies or third
whom it is directed to attend court with the
parties). The Crown cannot disclose what it does
targeted records or materials.
not have or cannot obtain. Instead, production of
these records is generally governed by the two-part 2. The accused also brings an application, sup-
test for production set out in R. v. O’Connor, [1995] ported by appropriate affidavit evidence,
4 S.C.R. 411, discussed below. showing that the records sought are likely to be
relevant in their trial. Notice of the application
Not all records in the possession of the police are
is given to the prosecuting Crown, the person
subject to the first party disclosure regime. While
who is the subject of the records, and any other
the investigating police force (or other investigating

Criminal Procedure
 24
person who may have a privacy interest in the 5. Remedies for Lack of Disclosure
records targeted for production.
When defence counsel is concerned that full disclo-
3. The application is brought before the judge sure has not been made, these concerns should be
seized with the trial, although it may be heard put on the record and counsel should consider
before the trial commences. If production is scheduling a pre-trial disclosure motion as contem-
unopposed, the application for production be- plated in Stinchcombe. See §6.08(3), regarding the
comes moot and there is no need for a hearing. Charter and the right to disclosure.
4. If the record holder or some other interested The Crown’s decision not to disclose information
party advances a well-founded claim of privi- may be reviewed by the trial judge on a voir dire, in
lege, the existence of privilege will effectively which the Crown bears the onus of justifying the
bar the accused’s application for production, non-disclosure: Stinchcombe at paras. 21-23. On re-
unless the accused’s innocence is at stake. Is- view, the trial judge should be guided by the gen-
sues of privilege are best resolved at the outset eral principle that information ought not to be with-
of the application process. held if there is a reasonable possibility that the
withholding of information will impair the right of
5. Where privilege is not in question, the judge
the accused to make full answer and defence, unless
determines whether production should be
the non-disclosure is justified by the law of privi-
compelled in accordance with the two-stage
lege or on the basis that the information is irrele-
test established in R. v. O’Connor, [1995] 4
vant: Stinchcombe at para. 22.
S.C.R. 411. At the first stage, if the judge is
satisfied that the record is likely relevant to the
[§3.04] Court Records, Informations,
proceedings against the accused, the judge may
Transcripts
order production of the record for the court’s
inspection. At the next stage, with the records
Defence counsel should also consider obtaining the fol-
in hand, the judge determines whether, and to
lowing documents as part of preparation for the hearing:
what extent, production should be ordered to
the accused. 1. a photocopy of the Information (refer to the dis-
cussion of Informations and Indictments at §3.05);
Special rules apply where an accused is seeking a
“record” relating to a complainant or witness in 2. a photocopy of the Record of Proceedings which
proceedings for one of the sexual offences listed in indicates when appearances were made, what oc-
s. 278.2(1), whether it is in the hands of a third curred on appearance dates, the next appearance,
party or Crown counsel. Crown counsel may refuse bail disposition, etc.;
to disclose records on the basis that they fall within 3. photocopies of the police booking sheets that
the statutory exceptions to disclosure set out in provide information such as a full description of
ss. 278.1–278.9 of the Criminal Code. The the accused, where the accused was arrested,
constitutionality of these sections was upheld in condition of the accused upon arrest, what
R. v. Mills, [1999] 3 S.C.R. 668, and these sections belongings the accused had at the time of the
are sometimes referred to as the “Mills regime.” arrest, etc.;
To apply to obtain the records in these circumstanc- 4. photocopies of any other relevant documents in
es, counsel must bring a formal written application the court file, such as probation orders, release or-
for production pursuant to the procedure outlined ders, etc.;
ss. 278.2–278.9 of the Criminal Code. “Record” is
defined in s. 278.1 as “any form of record that con- 5. photocopies of any warrants that have been issued
tains personal information for which there is a rea- pursuant to the Information;
sonable expectation of privacy” and includes medi- 6. photocopies of all search warrants, including the
cal, psychiatric, therapeutic, counselling, education, Information to Obtain a Search Warrant. The In-
employment, child welfare, adoption and social ser- formation to Obtain may provide useful disclosure
vices records, as well as personal journals and dia- about the police investigation; it may also provide
ries. This procedure applies regardless of whether a basis to attack the search warrant at trial as part
the records are in the possession of the Crown or a of an application to have evidence seized under
third party. The holder of those records, as well as the search warrant excluded under the Charter
the persons who have an interest in the material, (see §6.11, regarding the Charter and unreasona-
must be given notice of the application. The appli- ble searches);
cation must be brought before the trial judge (see
A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; 7. photocopies of all affidavits sworn in support of
O’Connor). any Authorizations to Intercept Private Communi-
cations. To obtain these, counsel must apply to the

Criminal Procedure
 25
court prior to the preliminary inquiry or trial wording for most sections under the Criminal Code,
(Dersch v. Canada (Attorney General) (1990), 60 although counsel must remember that other wordings
C.C.C. (3d) 132 (S.C.C.)); s. 187 of the Code). As may be equally valid, and wordings in Martin’s may be
a practical matter, the Crown will often make the defective.
application. Subject to editing by the prosecutor—
To challenge an Information or Indictment, defence
for example, to protect a confidential informant—
counsel must make a motion to quash under s. 601(1) of
the defence is entitled to a copy of all affidavits in
the Criminal Code. Such an objection must be made be-
support of such Authorizations or Renewals so
fore plea or with leave of the court. Remember that in
that the accused may be able to make full answer
most cases, when an objection is made before plea, any
and defence. The defence may seek an order from
serious prejudice to an accused can be avoided by an
the judge for disclosure of any edited portion;
adjournment to allow the accused time to prepare to face
8. transcripts from any preliminary matters which the “cured” Indictment.
may be relevant for the hearing of the matter; and
Lamer C.J.C. set out the current attitude towards amend-
9. transcripts from other related criminal or civil ing Informations and Indictments in R. v. Webster
court proceedings in which potential witnesses (1993), 78 C.C.C. (3d) 302 (S.C.C.):
have testified about the matters before the court. Since the enactment of our Criminal Code in 1892
there has been, through case law and punctual amend-
[§3.05] Informations and Indictments ments to s. 529 [now s. 601] and its predecessor sec-
tions, a gradual shift from requiring judges to quash to
The Indictment or Information is the document charging requiring them to amend them instead; in fact, there
the accused. Both Crown and defence counsel should remains little discretion to quash. Of course, if the
review the Information or Indictment closely and as ear- charge is an absolute nullity, an occurrence the condi-
ly as possible because this is the document that guides tions of which the Chief Justice has set out clearly in
the proceedings. … reasons, no cure is available as the matter goes to
the very jurisdiction of the judge. … But, if the charge
The definition of “Indictment” in s. 2 of the Criminal is only voidable, the judge has jurisdiction to amend.
Code includes “an information or a count therein.” Even failure to state something that is an essential in-
Therefore, the law relating to the sufficiency, amending, gredient of the offence (and I am referring to
and quashing of Indictments also applies to Infor- s. 529(3)(b)(i) [now s. 601(3)(b)(i)]) is not fatal; in
mations. fact, it is far from being fatal, as the section commands
that the judge “shall” amend.
Historically, many cases were decided on technical ar-
guments concerning Informations and Indictments. The A controversial issue is when a court can quash an In-
modern approach is to reject minute analysis of Infor- formation that is allegedly an abuse of process. A trial
mations and Indictments. Generally, an Information will court judge has a residual discretion to stay proceedings,
be sufficient if it reasonably informs the accused of the but a judge should exercise this power only in the
charges against that person and raises the allegations “clearest of cases” (see §6.08(2), regarding the Charter
from the general to the particular. As long as the Infor- and judicial stays for abuse of process). Direct indict-
mation discloses an offence known to law, the courts are ments similarly have withstood motions to stay when
likely to cure any defect in the charging document by they were argued to be “without foundation” (R. v. Den-
amending the document and granting the defence an ad- bigh (1988), 45 C.C.C. (3d) 86 (B.C.S.C.)).
journment. When determining whether an amendment is appropri-
Counsel should review the Information and consider the ate, the focus is on prejudice to the accused and the pos-
following questions: sibility of an injustice. Unless the charge is an “absolute
nullity,” the judge has very wide powers to cure a defect
1. Does the Information charge an offence known to through amendment, and must do so unless the amend-
law? ment would cause injustice in that the accused has been
2. Is the Information properly sworn? misled or prejudiced by the defect. Even if there has
been such an injustice, the court should amend and ad-
3. Was the Information laid within the applicable journ rather than quash.
time frames?
Section 601 of the Criminal Code sets out the circum-
4. Does the Information contain sufficient particular- stances in which an amendment can be made. Several
ity to raise the charges from the general to the par- cases address the issue of when amendments can be
ticular? made:
Criminal Pleadings and Practice in Canada, by E. G. 1. before election (R. v. ITT Industries of Canada
Ewaschuk, is an excellent source of material on Ltd. (1987), 39 C.C.C. (3d) 268 (B.C.C.A.));
Informations and Indictments. Martin’s Annual Criminal
Code also has a useful appendix that contains charge 2. at the preliminary hearing (s. 601);

Criminal Procedure
 26
3. after a no-evidence motion (R. v. Powell, [1965] 4 4. be entered into
C.C.C. 349 (B.C.C.A.));
(i) by a fully informed accused who fully and
4. after an insufficient evidence motion, but if the freely consents to participation in the alterna-
motion to amend is allowed, then the accused tive measure after being advised of their
should be permitted to re-elect to call evidence (R. right to counsel;
v. Wiley (1982), 65 C.C.C. (2d) 190 (Ont. C.A.));
(ii) by an accused who accepts responsibility for
5. after the defence case closes (R. v. Hagen (1969), the act or omission that formed the basis of
6 C.R.N.S. 365 (B.C.C.A.)); the offence; and
6. during final submissions of counsel (R. v. Clark (iii) in cases where the prosecution is of the opin-
(1974), 19 C.C.C. (2d) 445 (Alta. S.C. App. ion that there is sufficient evidence to pro-
Div.)); and ceed with the offence and the prosecution of
the offence is not in any way barred by law.
7. on appeal (R. v. Morozuk (1986), 24 C.C.C. (3d)
257 (S.C.C.) and R. v. Irwin (1998), 123 C.C.C. Alternative measures may be considered at any time
(3d) 316 (Ont. C.A.)). throughout the prosecution. Crown counsel may on oc-
casion make a referral to alternative measures prior to
[§3.06] Limitation Periods laying an Information if the referral and any program can
be completed prior to the expiration of the limitation
Section 786(2) imposes a limitation period of 12 months period and is otherwise appropriate. There are ad-
for summary conviction offences.2 There is generally no vantages to defence counsel contacting Crown counsel
limitation period for indictable offences. When the of- to seek alternative measures at the earliest possible time
fence charged is a “hybrid offence” (summary or indict- in order to influence prosecutorial decisions before they
able at the election of the Crown) and when the charge become entrenched in the formal charge process.
has been laid more than 12 months after the date of the
offence, the Crown must proceed by indictment on the When considering an application to the prosecution for
charge, if appropriate. an alternative measure, defence counsel may want to
review the ALT 1—Alternative Measures for Adult Of-
Counsel can waive a summary conviction limitation fenders Policy, in the Crown Counsel Policy Manual,
period under s. 786 (2). There may be situations in Criminal Justice Branch, Ministry of Attorney General
which the defence wants a summary conviction trial (a public document), so that counsel can tailor the re-
rather than an indictable proceeding where the charge quest to address the factors contained in the Policy. With
was sworn outside the 12-month limitation period. In respect to the federal Crown, counsel should explore
these circumstances it may be worthwhile to approach alternative measures with the Public Prosecution Service
Crown counsel to see if they will consent to a summary of Canada or its agent in their area.
conviction proceeding.
The process will usually start with a submission by de-
[§3.07] Alternatives to Prosecution fence counsel to the Crown in which the responsibility
of the client is admitted, full antecedents of the client are
Once defence counsel has reviewed the particulars and provided, and an explanation is given as to why the of-
the Information, counsel should consider whether the fence occurred and why it will not occur in the future.
accused might be eligible for alternative measures. Note Reference letters may help. The Crown will review the
that “alternative measures” programs are occasionally material and make a referral to a service provider (usual-
referred to colloquially as “diversion” because they “di- ly Community Corrections) for a report. The agency will
vert” offenders out of the criminal justice system. investigate the accused’s suitability for alternative
measures and report back to Crown counsel. Any report
Formal “alternative measures” to prosecution were in- that recommends alternative measures will also include
troduced in the Criminal Code in 1995—see s. 717. an alternative measures plan. Crown counsel may accept,
Conditions for approval of an alternative measures plan reject, or modify the proposed plan. Many alternative
are set out in s. 717. They include that the plan must: measures agreements include some form of supervision,
monitoring, or other involvement by a third party.
1. not be inconsistent with the protection of society;
No admission, confession or statement accepting respon-
2. be part of a program of alternative measures au-
sibility in an alternative measures agreement is admissi-
thorized by the Attorney General;
ble in evidence against that person in any civil or crimi-
3. be appropriate to the needs of the accused and the nal proceeding (s. 717(3)). Entry into an alternative
interests of society and the victim; and measures arrangement does not prevent laying of an In-
formation or bar a prosecution. However, if a prosecu-
2
tion is commenced, the accused may ask the court to
Prior to the coming into force of amendments to the Criminal dismiss the charge under s. 717(4) if the terms and con-
Code, the limitation period was six months.

Criminal Procedure
 27
ditions of the alternative measures plan have been com- in reducing the length of the sentence ultimately
pletely complied with, or if they have been partially imposed (see §8.04(19)(a)).
complied with and the court is of the opinion that the
6. Several cases can be manipulated to the advantage
prosecution would be unfair having regard to the cir-
of the accused without misleading the court. For
cumstances of the case and the person’s performance of
example, an accused may have charges in several
the alternative measures.
jurisdictions. Separate pleas can be arranged
Generally, alternative measures agreements in British without the prosecution knowing what is happen-
Columbia must be completed within three months. How- ing in the other areas, resulting in the offences be-
ever, there may be exceptional cases that require a long- ing treated as isolated instances, and sentences
er time period than three months. Police and government that result being concurrent. The “Justin case-
agencies retain records of alternative measures (ss. 717.2 tracking system” makes this more difficult to do
and 717.3). The records may be disclosed in limited cir- than it used to be. Alternatively, counsel may con-
cumstances under s. 717.4. sider waiving all charges to a single jurisdiction
where the most favourable disposition is possible.
If an accused is not eligible for alternative measures,
defence counsel may want to consider early disposition. There are, of course, other additional factors not set out
here that support early disposition.
[§3.08] Early Disposition
[§3.09] Plea Resolution
Once the lawyer has agreed to take the case and obtained
initial disclosure, and the custodial status of the client While there may be some debate over the desirability of
has been determined, the lawyer can consider early dis- plea bargaining, the reality is that discussions and nego-
position of the case. tiations leading to compromise by the Crown or defence
are a fact of criminal practice. No one can predict with
Although the majority of cases are set for hearing (even
certainty what the outcome of a trial will be.
if some of them are ultimately resolved by means other
than a full hearing), in some cases the matter is disposed From an accused’s perspective, it is imperative that they
of by guilty plea, stay of proceedings, withdrawal, or by know what alternatives exist in order to be able to make
various combinations of these, on the very first appear- fully informed decisions about whether to proceed to
ance of the accused, or on a very early appearance. trial. The accused is the person who knows what oc-
curred and whether the charges are well-founded or not.
A guilty plea is only appropriate where the client accepts
Defence counsel rarely can know with certainty whether
responsibility for having committed the crime.
they are being told all of what the accused knows. The
An early guilty plea may be beneficial in the following accused, for a variety of reasons, may not be entirely
situations: honest or complete in what they tell defence counsel.
1. The Crown file is deficient. For example, the Consequently, each accused needs to know what the al-
criminal record is missing or is incomplete, or a ternatives are so that they can assess what is the best for
police investigation is ongoing. themselves.
2. The lawyer and the accused find the judge, prose- Rules 5.1-7 and 5.1-8 (“Agreement on Guilty Plea”) of
cutor, or police presently dealing with the matter the BC Code state the duties of defence counsel as
to be to their liking, and want to avoid the possi- follows:
bility of less favourable opponents assuming re- 5.1-7 Before a charge is laid or at any time after a
sponsibility for the matter later. charge is laid, a lawyer for an accused or potential
accused may discuss with the prosecutor the possible
3. Another charge against the same accused must be disposition of the case, unless the client instructs
dealt with and it is apparent that the accused otherwise.
would benefit from a “package deal” (dealing
with both charges at the same time). 5.1-8 A lawyer for an accused or potential accused may
enter into an agreement with the prosecutor about a
4. Counsel is satisfied that a guilty plea is otherwise guilty plea if, following investigation,
appropriate, and the accused cannot tolerate any (a) the lawyer advises his or her client about the
delay and wants to enter the plea as soon as prospects for an acquittal or finding of guilt;
possible. (b) the lawyer advises the client of the implica-
5. The accused has been detained or has consented to tions and possible consequences of a guilty
remain in custody and a determination of guilt is plea and particularly of the sentencing authori-
probable. However, remember that time spent in ty and discretion of the court, including the
fact that the court is not bound by any agree-
custody awaiting trial (pre-disposition custody) ment about a guilty plea;
may be taken into account by the sentencing judge

Criminal Procedure
 28
(c) the client voluntarily is prepared to admit the In order to arrange a plea bargain, defence counsel
necessary factual and mental elements of the should contact the Crown in charge of the case and pro-
offence charged; and pose a position the Crown should take if the client were
(d) the client voluntarily instructs the lawyer to to plead guilty either to the offence charged or some oth-
enter into an agreement as to a guilty plea. er offence. Defence counsel frequently use this oppor-
Commentary [1] The public interest in the proper ad- tunity to provide the Crown with new information, espe-
ministration of justice should not be sacrificed in the in- cially on the background of the accused, to assist the
terest of expediency. Crown in reviewing the proposal. Tactically, defence
counsel should decide beforehand whether the proposal
The Crown views resolution discussions as essential to is the one hoped for or simply a negotiable position.
the functioning of the justice system when they are con- When the proposal is accepted, it must be conditional on
ducted properly, in a principled manner, and in accord- confirmation from the client. This confirmation must be
ance with the charge approval standard. See RES-1 done promptly.
“Resolution Discussions and Stays of Proceedings” in
the Crown Counsel Policy Manual for the factors the The accused’s hope is that, as a result of the discussions,
Crown considers when engaging in resolution discus- the sentence will be somewhat lower than it would be
sions. Resolution discussions are beneficial because they after trial, disposition will occur at a time to suit the ac-
allow Crown counsel to consider information known cused’s convenience, disposition by guilty plea will be
only to the defence concerning the strength of the less expensive than a trial, fewer convictions will appear
Crown’s case. The early resolution of criminal charges on the accused’s record, and the likely outcome will be
reduces stress and inconvenience to victims and witness- known in advance. Where Crown and defence are in full
es. It also results in a more efficient justice system when agreement as to the exact sentence as a result of negotia-
trials are either not necessary, or are shorter, due to the tions, the likely outcome will be known in advance. A
focusing of proceedings on those facts which are clearly judge will only reject a joint submission if it would bring
in issue. During resolution discussions, Crown counsel the administration of justice into disrepute or be other-
must act in the public interest at all times. wise contrary to the public interest: R. v. Anthony-Cook,
2016 SCC 43 at paras. 32–34. The threshold is a high
Generally, as part of the initial disclosure package, the one:
Crown will give defence counsel a completed Crown
Counsel’s Initial Sentencing Position (“ISP”). The ISP Rejection [of a joint submission] denotes a submission
outlines what sentence the Crown will seek if the ac- so unhinged from the circumstances of the offence and
the offender that its acceptance would lead reasonable
cused enters an early guilty plea. The ISP also alerts de- and informed persons, aware of all the relevant cir-
fence counsel to what additional information the Crown cumstances, including the importance of promoting
requires in order to determine a sentencing position. certainty in resolution discussions, to believe that the
Plea negotiation can result in many things, including: proper functioning of the justice system has broken
down.
1. a guilty plea to some charges in return for other
charges being dropped; In practice, when judges are considering departing from
a joint submission, they will advise counsel of their con-
2. a guilty plea to a lesser charge in return for the cerns and invite further submissions on those concerns.
primary charge being dropped;
If a judge has concerns about a joint submission, an ac-
3. a guilty plea to the charge in consideration for the cused may also be allowed to withdraw a guilty plea, but
Crown not proceeding by Notice to Seek Greater not always. Defence counsel must remember to com-
Penalty; municate clearly to the client that although a plea
4. a guilty plea on the understanding that the Crown agreement with the Crown lends greater predictability to
will take a certain position on sentence; a case, the court is not bound by the bargain and may
impose a sentence quite different from that agreed to by
5. a guilty plea on the understanding that the guilty defence and Crown.
plea or sentence will occur on certain specified
dates; or Section 606(1.1) of the Criminal Code sets out the con-
ditions for a court accepting a guilty plea. A court may
6. a guilty plea on the understanding that the charges only accept a guilty plea if it is satisfied that the accused
against other persons will be dropped. is making the plea voluntarily and that the accused un-
derstands the following:
It is improper for the Crown to conceal any of an ac-
cused’s previous convictions from a sentencing judge by • that the plea is an admission of the essential el-
“not alleging” them as part of a plea bargain. However, ements of the offence;
when such convictions are brought to the judge’s atten- • the nature and consequences of the plea; and
tion, the Crown may state that they are not material be-
cause of their age or nature.

Criminal Procedure
 29
• that the court is not bound by any agreement fore a Judicial Case Manager rather than before a
made between the accused and the prosecutor. Provincial Court judge. The revisions also reduced
the number of times an accused person must appear
It is important to remember the consequences of a guilty
in court before trial.
plea. A guilty plea is a formal admission of guilt. It in-
volves an acknowledgement of all the legal elements Counsel should also be familiar with two key Prac-
necessary to constitute the crime. To constitute a valid tice Directions that provide clarification and guid-
guilty plea, the plea must be voluntary and unequivocal. ance about criminal procedure under the CCFM
The plea must also be informed, in that the accused must Rules:
be aware of the nature of the allegations made against
• Practice Direction—Criminal Caseflow Man-
them, the effect of their plea, and the consequence of
agement Rules Simplified Front End Criminal
their plea. See e.g. R. v. Singh, 2014 BCCA 373.
Process (No. 2013/CPD-1), as updated June
A trial judge has the discretion to permit a guilty plea to 12, 2020 (the “2013 CPD-1 CCFM Practice
be withdrawn at any time before sentence is imposed. Direction”); and
The onus is on the accused to satisfy the court that there
• CRIM 08 Criminal Caseflow Management
are “valid reasons” for a court to exercise its discretion
Rules Simplified Front End Process (2013)
to permit a guilty plea to be withdrawn. There are sever-
Forms and Procedure (the “CRIM 08 Forms
al factors for the court to consider in determining wheth-
and Procedure”).
er to exercise its discretion: Adgey v. The Queen (1973),
13 C.C.C. (2d) 177 (S.C.C.); R. v. M.(D.L.), 2012 These Practice Directions support the objectives of
BCSC 538. the revised rules and process by, among other
things, assigning most administrative and remand
An accused seeking to appeal a conviction based on a
matters to Judicial Case Managers. CRIM 08 Forms
guilty plea can only succeed under s. 686(1)(a)(iii) of the
and Procedure also introduces the Consent Requisi-
Criminal Code: see Singh. The accused must satisfy the
tion, Consent Remand, and Consent Arraignment
appellate court that the acceptance of the guilty plea was
forms. Where the preconditions are met (as set out
a miscarriage of justice and resulted in prejudice to the
in CRIM 08 Forms and Procedure), counsel may
accused: R. v. Wong, 2018 SCC 25. The accused must
use these forms to negate the need for a pre-
establish that the plea was not voluntary in the sense that
trial/hearing personal appearance. Appropriate use
the accused did not appreciate the nature of the charge or
of the Consent Arraignment forms will be discussed
the consequences of the plea: Singh. Though some ap-
in more detail below in §3.10(3).
pellate courts have required that an accused establish an
“articulable route to acquittal” before the plea will be set For the current CCFM Rules and the relevant Prac-
aside, the Supreme Court of Canada rejected this ap- tice Directions and forms, consult the Provincial
proach in Wong. The applicable standard of proof is one Court website (www.provincialcourt.bc.ca/), under
of “reasonable possibility”; that is, the accused must “Criminal Caseflow Management Rules” and
show that there is a “reasonable possibility” that a simi- “Criminal & Youth Court Matters Practice Direc-
larly situated person would have proceeded differently if tions.” Be aware that practice in this area varies
aware of the legally relevant consequences at the time of considerably throughout the province.
the plea. The onus of showing on a balance of probabili-
2. Initial Appearances
ties that the plea was invalid is not easily discharged: R.
v. Alec, 2016 BCCA 282. The CCFM Rules contain specific provisions relat-
ing to an accused’s initial appearance (Rule 5). Ju-
When disposition or alternative measures are not possi-
dicial Case Managers preside over initial appear-
ble at an early stage, the next step is to set the matter for
ances. All Judicial Case Managers are required to
a hearing.
be Justices of the Peace.
[§3.10] Criminal Caseflow Management Rules An initial appearance includes the first attendance
of a person in court in respect of a charge, and ad-
1. Objectives of the Rules journments from such appearances.
Counsel who appear in the Provincial Court need to The main purpose of initial appearances is to set a
be familiar with the Criminal Caseflow Manage- timely date for the accused’s arraignment hearing,
ment Rules (the “CCFM Rules”). The objectives of unless the accused indicates to the justice that they
the CCFM Rules include reducing time to trial, us- intend to plead guilty, in which case the justice will
ing judicial resources more effectively, and increas- set the matter before a judge for the taking of a plea
ing accessibility of the court. and sentencing (Rules 5(1) and 5(5)).
The CCFM Rules were amended in 2013 to allow
initial appearances and uncontested, non-
adjudicative administrative appearances to be be-

Criminal Procedure
 30
To this end, initial appearances allow an accused to guilty, and to solicit information about the number
obtain initial disclosure (Rule 6) and to obtain of witnesses, anticipated Charter applications, and
counsel if the accused wishes to do so (Rule 5). time estimates. Judicial Case Managers may not
Once counsel is retained, the usual practice in initial record a plea, but will schedule the matter for trial
appearance court is for defence counsel to wait for with the direction to parties that the plea is to be en-
the court clerk (or Crown counsel in some jurisdic- tered before the trial judge on the first day of trial.
tions) to call the case by number and name. Defence Judicial Case Managers are also authorized to take
counsel then introduces themselves (spelling their and record an election from a person represented by
name unless the spelling is obvious), advises counsel, and to schedule a preliminary inquiry
whether the client is present, and states the purpose where one is requested.
of the appearance. When counsel is prepared to ap- As a matter of practice, in some locations, including
pear only on a limited basis for the client—for ex- Vancouver (222 Main Street), Judicial Case Man-
ample, for the preliminary hearing only—counsel agers will conduct arraignment hearings for sum-
should state these limitations at this time. mary matters only (except for recording the intend-
When the client is not present, counsel should ex- ed plea). Judicial Case Managers will schedule
plain the client’s absence so that the court can de- dates for trial and will direct the parties to enter the
termine whether an appearance by counsel or agent plea on the first day of trial. In indictable matters,
will be accepted. Counsel may appear as counsel or once the Judicial Case Manager is satisfied that the
agent for a client charged with a summary convic- purposes of the initial appearance have been ad-
tion offence (see s. 800(2) of the Criminal Code), dressed, the case will be adjourned to a judge for
although the court may require the accused to ap- the purposes of recording the election and not guilty
pear personally. Counsel must have precise instruc- plea before fixing a trial date.
tions from the client to appear in court on a certain 3. Arraignment Hearing
date as an agent. After such an appearance, counsel
must inform the client of what transpired and of the Rule 8(1) of the CCFM Rules sets out who must at-
date of the client’s next court appearance. Failure to tend an arraignment hearing, whether for a sum-
appear may result in a warrant being issued by the mary or indictable proceeding. Unless a “justice or-
court for the client’s arrest. On indictable offences, ders otherwise” the prosecutor, legal counsel for the
the client must appear personally unless a counsel accused or other legal counsel designated for the
designation notice has been filed. See s. 650.01 for purpose of that hearing, and the accused must at-
the circumstances in which defence counsel can ap- tend the arraignment hearing.
pear pursuant to a counsel designation notice.
In some locations (currently only Vancouver Island
At the first appearance on a hybrid offence matter, and the Northern Regions) no in-court appearance
defence counsel may want the Crown to state, on may be required in an adult criminal matter if the
the record, whether the Crown intends to proceed Crown and defence counsel have discussed the mat-
by way of summary conviction or by indictment. ter and agree the matter is ready to be set for trial,
This will prevent any uncertainty or confusion at a preliminary inquiry, sentencing or other hearing;
later stage. agree that an in-court arraignment or appearance is
not required; and have filed a Form 4 Consent Ar-
Once counsel is retained (if an accused wishes to
raignment form that has been accepted by the Judi-
retain counsel), the Judicial Case Manager will ask
cial Case Manager office in advance (CRIM 08
the accused to indicate an intention concerning plea
Forms and Procedure). If submitted and accepted
and election (if the Information carries a right of
prior to the pre-set arraignment event, the Judicial
election). Where an accused person refuses to do so,
Case Manager will vacate the future arraignment
the Judicial Case Manager will refer that person to a
appearance.
judge as soon as possible.
At an arraignment hearing before a judge, the judge
A document dated June 30, 2016, entitled JCM
may call on the accused to make an election (if the
Guidance on Arraignment, was distributed by the
accused is entitled to an election) and enter a plea.
Chief Judge to Judicial Case Managers to assist
In addition, a judge may make inquiries or orders,
them in fulfilling their duties pertaining to arraign-
or give directions to facilitate a trial or preliminary
ment of accused persons, as set out in the Notice to
inquiry and to dispose of or simplify the issues. If
the Profession, NP03 – Assignment of Duties to Ju-
necessary, the judge will adjourn the arraignment
dicial Case Managers.
hearing to enable compliance with any order or di-
The guidance directs Judicial Case Managers to rection. The judge may also hear applications, if
continue with the arraignment process where an ac- convenient and practicable for the court and all par-
cused person has indicated an election before a Pro- ties.
vincial Court judge or an intention to plead not

Criminal Procedure
 31
At the arraignment hearing, the case may be dis- [§3.11] Pleas
posed of by plea and set for sentencing, adjourned
for pre-trial applications, or set for trial. Where the The following pleas are available to an accused:
matter is being set for trial, counsel should be pre-
1. not guilty;
pared to discuss the probable length of the case,
how many witnesses will likely be called, and 2. guilty;
whether there will be any pre-trial or Charter appli-
3. autrefois acquit (ss. 607–610, 808(2));
cations.
4. autrefois convict (ss. 607–610, 808(2)); and
Once the arraignment hearing is conducted, counsel
will be directed to the office of the Judicial Case 5. pardon (s. 607).
Managers to schedule a hearing date based on the
With Crown consent, the accused may plead not guilty
time estimate determined at the arraignment hear-
to the offence charged but guilty to any other offence
ing. If the judge directs it, the trial scheduler will al-
arising out of the same transaction (s. 606(4)). It need
so set a time for the hearing of applications in re-
not be an included offence. When an accused refuses to
spect of the case. Dates will be set at the
plead or does not answer directly, a plea of not guilty is
convenience of the court, Crown witnesses, and de-
entered.
fence counsel.
For a discussion of the plea of autrefois acquit, see R. v.
Defence counsel should consult the client about
Petersen (1982), 69 C.C.C. (2d) 385 (S.C.C.), where the
convenient days for trial to determine if the client
court held that the plea of autrefois acquit should suc-
can take a day off from work or school. The client
ceed where an accused has been placed in jeopardy on
may want an early trial date if detained in custody,
the same matter on an earlier occasion before a court of
or want to have a jail sentence or licence suspension
competent jurisdiction and there was a disposition in the
finished by a certain time of year or before an up-
accused’s favour resulting in an acquittal or dismissal of
coming trip or job. Alternatively, the client may
the charges. There need not be a disposition “on the mer-
want a delay to locate witnesses, to improve their
its” (R. v. Riddle (1979), 48 C.C.C. (2d) 365 (S.C.C.)).
situation for sentencing purposes, or simply to post-
pone an inevitable jail sentence, fine, or licence When charges are “quashed” after plea as defective,
suspension. even if there has been no trial on the merits, the plea of
autrefois acquit will normally be available and there will
When scheduling dates, counsel should also keep in
be few circumstances where the Crown can successfully
mind that if there are difficulties scheduling a trial
just re-lay the charge—the Crown must appeal (R. v.
within an acceptable time frame, the trial scheduler
Moore, [1988] 1 S.C.R. 1097). If the Information is
may refer the case to the judge who presided at the
quashed before plea, autrefois acquit will not lie, and the
arraignment hearing. This is particularly important
Crown may re-lay the charge (R. v. Pretty (1989), 47
given the framework for assessing the reasonable-
C.C.C. (3d) 70 (B.C.C.A.)). In cases where there is au-
ness of delay under s. 11(b) of the Charter: R. v.
trefois acquit or autrefois convict, it may be productive
Jordan, 2016 SCC 27.
for defence counsel to advise the Crown in advance be-
• For trials in Provincial Court, delay that ex- cause verification of the previous acquittal or conviction
ceeds 18 months from charge to anticipated or may well result in the charge being stayed.
actual end of trial is presumed unreasonable.
When the plea is guilty, the hearing may proceed direct-
• For trials in the superior court, the presumptive ly to sentencing. The facts are “read in” by the Crown.
ceiling is 30 months. The defence is usually asked if it disputes the facts. Even
if not asked directly, it is still important that the defence
Delay caused or waived by the defence does not
make it clear if a relevant fact is in dispute. Factual as-
count towards the presumptive ceiling. If delay falls
sertions made in submissions are not “evidence.” A
below the ceiling, then to show the delay was un-
judge can accept a fact advanced solely through submis-
reasonable, defence counsel will need to demon-
sion only if that fact is non-contentious. Any clear and
strate that it took meaningful, sustained steps to ex-
unequivocal dispute as to a relevant fact must be re-
pedite proceedings.
solved by calling admissible evidence, which can in-
Counsel should think about the effect any position clude credible and trustworthy hearsay: R. v. Pahl, 2016
they take with respect to available dates may have BCCA 234 at paras. 53–56.
on a future s. 11(b) breach claim. Before waiving
The burden is on the Crown to prove any disputed ag-
any delay, counsel must have their client’s informed
gravating fact beyond a reasonable doubt. There is a cor-
instructions.
responding burden on the accused to prove any disputed
mitigating fact on a balance of probabilities (R. v. Gar-
diner (1982), 68 C.C.C. (2d) 477 (S.C.C.); s. 724(3)).
Any major dispute as to facts alleged may require an

Criminal Procedure
 32
adjournment in order to marshal evidence. To avoid un- lute jurisdiction is not exclusive jurisdiction. By opera-
necessary delay, counsel should discuss the facts on tion of ss. 468 and 469, any superior court of criminal
which the plea is based in advance. jurisdiction also has jurisdiction over these offences (R.
v. Cave (1978), 9 B.C.L.R. 19 (S.C.)). As such, where
A trial judge has the discretion to permit a guilty plea to
absolute jurisdiction offences are joined on an Infor-
be withdrawn at any time before the sentence is
mation with electable offences, the accused’s election of
completed (R. v. Atlay (1992), 70 C.C.C. (3d) 553
a superior court forum will apply to all offences.
(B.C.C.A.); R. v. M.(D.L.), 2012 BCSC 538).
Also, even on an indictable offence where a Provincial
Generally, a guilty plea should not be entered on behalf
Court judge has absolute jurisdiction, at any time before
of a client without having first canvassed all available
the accused has entered upon their defence, a judge who
disclosure, considered and discussed with Crown the
determines there is good reason for the charge to be
possibility of any compromise regarding the charges or
prosecuted in a superior court may decide not to adjudi-
circumstances related to those charges, Crown’s position
cate, inform the accused of the decision (s. 555(1)), and
on sentence, the facts Crown intends to allege, or any
put the accused to an election of trial by judge or judge
other issues such as scheduling that might be important
and jury (s. 555(1.1)). If the accused is entitled to a pre-
to the client’s decision to plead.
liminary inquiry and the accused or the prosecutor re-
quests one, the provincial court judge will continue the
[§3.12] Elections proceedings as a preliminary inquiry (s. 555(1.2)). This
discretion is exercised sparingly but does occur from
Some judges permit an accused to waive the reading of
time to time (see e.g. R. v. Pappajohn (1980), 14 C.R.
an Information or an election. This practice varies from
(3d) 243 (S.C.C.), aff’g (1978), 45 C.C.C. (2d) 67
judge to judge. Before agreeing to waive either of these
(B.C.C.A.).
procedural safeguards, defence counsel must ensure that
the accused fully appreciates and understands the op- For all other indictable offences (except when a direct
tions available. indictment is preferred), the accused has an election as to
the forum in which the trial will be held.
For summary conviction offences, whether federal or
provincial, the forum is the Provincial Court. The ac- An accused is put to an election on the Information as a
cused has no right of election for trial in a higher court whole, and may not make separate elections on each
for summary conviction offences. count in the Information (R. v. Watson (1979), 12 C.R.
(3d) 259 (B.C.S.C.)).
There are several offences in the Criminal Code and oth-
er federal statutes that are either indictable or summary, If an accused does not elect when put to an election un-
at the choice of the Crown. These are often referred to as der s. 536, they are deemed to have elected judge and
“hybrid offences.” When the accused is charged with a jury (s. 565(1)(b)).
hybrid offence, the Crown has the discretion to proceed
If Crown counsel exercises the Crown’s power under
by summary conviction or by indictment.
s. 568 to proceed by a jury trial, then the accused has no
If there are mixed hybrid and summary or indictable of- election or the accused’s election becomes irrelevant. If
fences in an Information, then all counts must be pro- the Attorney General prefers a direct indictment under
ceeded with by the Crown in the same manner or the s. 577, the accused is deemed to have elected judge and
counts will have to be severed for separate hearings (R. jury and no preliminary inquiry, though an accused may
v. Chartrand, [1974] B.C.D. Crim. Conv. (C.A.) and R. re-elect to judge alone (s. 565(2)).
v. Morelli (1970), 2 C.C.C. (2d) 138 (Ont. C.A.)).
Under s. 567, if not all jointly charged accused elect or
Indictable offences are triable in one of three forums: are deemed to elect the same mode of trial, the justice or
Provincial Court judge may decline to record the elec-
1. Provincial Court (no jury);
tions or deemed elections and simply hold a preliminary
2. Supreme Court without a jury; and inquiry. When this occurs, there is a deemed election of
trial by judge and jury (s. 565(1)(a)).
3. Supreme Court with a jury.
Part XVIII of the Criminal Code governs elections and
For some offences, the court that will hear the matter is preliminary inquiries. Counsel should read Part XVIII
determined automatically by operation of statute. For carefully. (See also §4.01.) In brief, if the accused is
example, the offences listed in s. 469 must, subject to charged with an indictable offence punishable by im-
s. 473(1), be tried by a Supreme Court judge and jury. prisonment of 14 years or more, and elects trial by a Su-
In other cases, a Provincial Court judge under s. 553 of preme Court judge alone, or judge and jury, a prelimi-
the Criminal Code has absolute jurisdiction over the of- nary inquiry will be held where either the Crown or the
fence. On absolute jurisdiction offences, the accused has accused request it. Absent a request for a preliminary
no choice as to the forum for hearing and the offences inquiry, the Provincial Court judge will set a date in Su-
are triable only in the Provincial Court. However, abso- preme Court to schedule a trial.

Criminal Procedure
 33
If a preliminary inquiry is requested, the party requesting Failure to follow the re-election wording in the Criminal
the inquiry must define the issues to be addressed, and Code precisely is not fatal: substantial compliance is all
the required witnesses. In addition, recent amendments that is necessary (MacKenzie). However, when an ac-
allow the justice conducting the preliminary inquiry to cused re-elects trial by a Provincial Court judge during a
limit the scope of the preliminary inquiry to specific is- preliminary inquiry, failure to take a plea after re-
sues and witnesses (s. 537(1.01)). (See Chapter 4 for election may result in an acquittal being set aside (R. v.
more on preliminary inquiries.) Atkinson (1977), 37 C.C.C. (2d) 416 (S.C.C.)). Unless
there is agreement that evidence taken on the prelimi-
[§3.13] Re-Election nary inquiry be evidence on the trial, the evidence must
be repeated after the plea (R. v. Matheson (1981), 59
Section 561 is the main provision in the Criminal Code C.C.C. (2d) 289 (S.C.C.)).
regarding re-elections.
[§3.14] Interim Appearances and Pre-Trial
When considering re-election, timing is important. Alt-
Conferences in Provincial Court
hough in some instances the accused may re-elect as of
right, this right may be lost after specified time deadlines
This section describes both the process for pre-trial con-
have passed, and then Crown consent will be required.
ferences that has been in place for some time, and a new
(See s. 561 for timelines.)
type of pre-trial conference introduced during the
As a practical matter, defence counsel should contact the COVID-19 pandemic. This section reflects procedures
appropriate Crown counsel to discuss the proposed re- that are in flux and practitioners should consult the latest
election. In cases where consent is required, the Crown’s Practice Directions for updated directions.
position might as well be known before further steps are
1. Interim Appearances and Pre-Trial Conferences
taken, and in many cases the process will go more
to Ensure Trial Readiness
smoothly because a date can be agreed upon for the re-
election and the Crown may be able to assist in arrang- After a plea of not guilty and election (if required)
ing this date with the appropriate registry. that results in the scheduling of a Provincial Court
trial, the trial scheduler may consult with counsel to
When the re-election is being done following committal,
determine whether a pre-trial appearance before a
often a convenient time to do it is at the Supreme Court
judge or Judicial Case Manager is appropriate to
trial fix date because the accused should also be present
ensure the parties are ready for trial.
to confirm their consent.
Pre-trial conferences are meant to ensure that the
The proper forum to hear a re-election is the court where
parties do not end up needing to reschedule trial
the Indictment or Information will ultimately be placed
dates in order to deal with unresolved issues.
(R. v. Ishmail (1981), 6 W.C.B. 148 (B.C.S.C.)).
A Judicial Case Manager may schedule an interim
If not all jointly charged accused are seeking to re-elect
appearance to confirm trial readiness where after
to the same mode of trial, the judge may decline to rec-
consultation with counsel the Judicial Case Manag-
ord the re-election (s. 567).
er deems it appropriate, or where an accused is self-
There has been some jurisprudential controversy as to represented. Counsel may also request an interim
whether the re-election provisions in the Code are ex- appearance, but no interim appearance will be set
haustive such that an accused cannot re-elect without the for summary matters unless the Judicial Case Man-
Crown’s consent where statutorily required (see e.g. R. ager determines it is required.
v. Diamonti (1981), 61 C.C.C. (2d) 483 (B.C.S.C.)). The
Cases where counsel may wish to request an interim
weight of appellate authority now appears to hold that a
appearance before a Judicial Case Manager or judge
trial judge has no discretion to permit re-election in such
include cases where disclosure issues have arisen,
circumstances unless the Crown’s exercise of discretion
there are unanticipated Charter issues, or the time
in refusing to consent to re-election amounts to an abuse
reserved for the proceeding has become inadequate.
of process: R. v. E.(L) (1994) 94 C.C.C. (3d) 228 (Ont.
C.A.). A failure to provide reasons for withholding con- If counsel becomes aware that it is necessary to ad-
sent does not in itself show an abuse of process (R. v. journ a trial or preliminary inquiry, counsel must
Ng, 2003 ABCA 1, leave to appeal dismissed [2004] make an application to a judge at the earliest oppor-
S.C.C.A. No. 33). As a practical matter, provided a time- tunity.
ly request is received so that witnesses are not inconven-
In indictable matters, if an accused elects trial in
ienced and trial time is not lost, the Crown will usually
Supreme Court, then in most cases a pre-trial con-
consent to re-election from judge and jury to judge
ference will be held in that court. See §4.03 for in-
alone, and will usually give the necessary consents to
formation about pre-trial conferences in Supreme
facilitate a re-election for the purpose of a guilty plea
Court.
before a court that is already dealing with the accused
for disposition on other matters.

Criminal Procedure
 34
2. Pre-Trial Conferences Introduced During deliver to the pre-trial conference judge. The parties
COVID-19 are encouraged to exchange materials that may as-
sist with resolution and trial management. Crown
During the COVID-19 pandemic, Practice Direction
counsel must provide a Crown Synopsis in Form 1,
CRIM 12 Criminal Pre-Trial Conferences During
a copy of the Information that the Crown is pro-
Covid-19 was issued. The Practice Direction was
ceeding on, and any criminal record of the accused.
updated effective June 16, 2022 under the name
CRIM 12 Criminal Pre-Trial Conferences. The files At the pre-trial conference, all counsel must be pre-
subject to this Practice Direction must have a pre- pared to make decisions about the resolution of the
trial conference after the arraignment hearing and matter; disclosure; applications that the parties will
before the scheduling of a trial or a preliminary in- bring at trial (e.g. Charter applications); the wit-
quiry. nesses the Crown intends to call at the preliminary
inquiry or trial; admissions the parties are willing to
The purpose of these pre-trial conferences is to en-
make; legal issues that the parties anticipate may
sure only those files truly requiring a trial are set for
arise in the proceeding; and an estimate of the time
hearing, and to manage the files that will be set for
needed to complete the proceeding.
trial in order to accurately estimate how much time
they will require, so as to avoid trials running over The pre-trial conference judge will pursue resolu-
their scheduled dates and generating delay. tion in order to avoid the need to set trial dates, and
will canvass the issues to reduce them to only those
The Practice Direction applies to the following
requiring adjudication. The judge may make case
adult and youth criminal files in Provincial Court:
management directions; confirm admissions made
• In the Fraser, Interior, and Vancouver Re- on the record; confirm or change the time estimates
gions, for files requiring three days or more of for trial; adjourn the matter to the Judicial Case
trial time, or for files requiring at least at least Manager to set dates for another pre-trial confer-
one day, where both counsel request a pre- ence, disposition, preliminary inquiry, or trial; or
trial conference. take any other steps consistent with the Practice Di-
rection.
• In the Northern and Vancouver Island Re-
gions, for files requiring three days or more of Consult CRIM 12 Criminal Pre-Trial Conferences
trial time, or for files requiring at least one for the full requirements under this Practice Direc-
day, where both counsel request a pre-trial tion.
conference.
Note that the separate form of pre-trial conference
The Practice Direction only applies when the ac- described above (§3.14(1), Interim Appearances
cused is represented by counsel. (Self-represented and Pre-Trial Conferences to Ensure Trial Readi-
accused with trials requiring one day or more of tri- ness) may still be required later in the process.
al time will have a pre-trial conference with a judge,
preferably the trial judge, approximately eight to ten
[§3.15] Assignment to a Judge and
weeks before the first trial date for trial manage-
Courtroom
ment purposes.)
Pre-trial conferences under this Practice Direction All Provincial Court locations in BC have a delayed as-
are held via videoconference or audioconference signment scheduling model. Seven locations have an
and off the record (unless otherwise ordered). “Assignment Court” (explained below) to better support
that objective: Port Coquitlam, Vancouver (222 Main
The conferences must be attended by Crown coun-
Street), Robson Square, Victoria, Kelowna, Abbotsford
sel and counsel for the accused, and are before the
and Surrey.
pre-trial conference judge, who will not be the trial
judge if the matter proceeds to trial. If the matter is Delayed assignment is an important feature of the Pro-
resolved prior to trial, the disposition may be done vincial Court scheduling model. It recognizes the high
by the pre-trial conference judge or assigned to an- collapse rate of scheduled matters, and strives to allow
other judge. the court to make the most efficient use of its time. Ex-
cept where a judge has been pre-assigned (such as where
Before the pre-trial conference, Crown counsel and
a matter is expected to take more than eight days), judg-
counsel for the accused must have thoroughly re-
es are assigned to locations, not cases. The Judicial Case
viewed their files and discussed with each other all
Manager will schedule a case for particular days, but
of the issues which will form the subject of the pre-
will not assign a judge to the case until close to the day
trial conference. At least three business days before
of trial (or on the day of trial, in Assignment Court loca-
the pre-trial conference, the parties must exchange
tions), after efforts have been made to confirm the matter
copies of all materials for the conference and must
is proceeding as scheduled.
also deliver them to the Judicial Case Manager to

Criminal Procedure
 35
In locations with an Assignment Court, at the time of It is usually the Crown who needs to request an ad-
charge approval Crown counsel will designate a file as a journment because a witness is absent. If the test in Dar-
special assignment (“SA”), general assignment (“GA”), ville has been met, and if it is the first such application,
or summary proceedings court (“SPC”) file. SPC files the Crown will likely obtain the adjournment.
are matters that are less complex and with time estimates
Both Crown and defence counsel should strive to make
of a day or less. When scheduled, each SPC file is given
any applications to adjourn a trial date well in advance
a single time slot in the summary proceedings court.
of the first day scheduled for trial or preliminary hearing.
When a file is designated SA or GA, it will be assigned
The CCFM Rules require counsel to apply to a judge at
to a particular prosecutor prior to arraignment if not
the earliest opportunity after becoming aware that an
sooner. If no judge is pre-assigned, then when the Judi-
adjournment of trial or preliminary inquiry is necessary
cial Case Manager schedules the matter for trial, prelim-
(Rule 11). In order to facilitate that, the 2013 CPD-1
inary hearing, or disposition the matter is returnable to
CCFM Practice Direction also notes that the court ex-
Assignment Court.
pects counsel to contact the Judicial Case Manager as
In Assignment Court, a Judicial Case Manager will as- soon as possible in the event of a contested or uncontest-
sess readiness before a case is assigned to a judge and ed adjournment application (para. 39). At least two days
courtroom. Assignment court opens at 8:45 a.m. and before the application for an order to adjourn is to be
cases are assigned based on who is ready first. Counsel heard, notice of the application in Form 5 must be given
is required to be present for the calling of the list at to the court and counsel, unless a judge dispenses with
9:00 a.m. to answer questions about readiness (an agent notice (CCFM Rule 11(3)). If defence counsel gives ear-
is not acceptable). Cases that are ready to proceed will ly notice of an application to adjourn a trial or prelimi-
be assigned to a particular courtroom and judge for a nary inquiry, the Crown will be more likely to consent,
9:30 a.m. start. Cases that are not ready to proceed may although the Crown may still ask the defence to formally
be stood down to the office of the Judicial Case Manag- waive delay. However, it is not always possible for
ers, but counsel who are not ready to proceed until later counsel to say with certainty whether an adjournment
in the day risk a courtroom being unavailable. As such, will be necessary before the first day of trial, in which
opposing counsel should discuss the case prior to the case the adjournment application will have to be brought
Assignment Court date, and defence counsel should ar- on the day of trial.
rive with instructions from their client.
When there are objections to the adjournment, both de-
Counsel should make all possible efforts to remove cases fence and Crown counsel should place their objections to
from the Assignment Court list in advance if they know the delay, and the reasons for them, on the record for use
a guilty plea will be entered or a trial will otherwise not on future s. 11(b) Charter applications.
be proceeding. Crown and defence are encouraged to use
There may be tactical reasons for the defence not to op-
the Consent Requisition form so they will not have to be
pose the Crown’s application to adjourn. It may be that
in Assignment Court for 9:00 a.m. if their trial is not
such an adjournment works to the accused’s advantage.
proceeding as scheduled.
It may also serve some benefit in discussions or negotia-
tions with Crown for the resolution of the file, or some
[§3.16] Adjournment issue associated with the file. However, counsel should
be mindful of the impact that not opposing a Crown ap-
Adjournment requests may arise before the first day
plication to adjourn may have on any future claim of a
scheduled for trial, on the first day scheduled for trial, or
breach of their client’s s. 11(b) rights. When counsel is
partway through the hearing and for various reasons,
agreeing to or not opposing a Crown application to ad-
including the unavailability of counsel and witnesses.
journ because it seems inevitable that it will succeed, but
To be entitled to an adjournment on the ground that wit- delay is still of concern to their client, counsel will wish
nesses are absent, a party must show that: to have that noted on the record, and explore if there is
• the absent witnesses are material witnesses in the any way to minimize the amount of delay for the pur-
case; pose of any future application under the Charter.
• the party applying has been guilty of no laches or In indictable matters, whether in Provincial or Supreme
neglect in omitting to endeavour to procure the at- Court, when a trial or preliminary hearing date is ad-
tendance of the witnesses; and journed, if the client appears or defence counsel is ap-
pearing pursuant to a counsel designation notice, the
• there is a reasonable expectation that the witnesses
matter can be adjourned directly to a new date. In sum-
can be procured at the future time to which it is
mary conviction matters, the lawyer may appear as agent
sought to put off the trial.
to adjourn a trial, when the lawyer has the client’s ex-
See R. v. Darville (1956), 116 C.C.C. 113 at 117 press instruction to do so, and properly and adequately
(S.C.C.). informs the client. Otherwise, the client must still appear
on the old or an intervening date to be formally ad-
journed to the new date.

Criminal Procedure
 36
As set out above, the Crown and the court may ask Criminal Code concern joinder of counts in an Infor-
whether the accused is prepared to waive their rights mation, and s. 591(3) concerns severance of accused.
under s. 11(b) of the Charter in respect of the time peri-
The prosecution has a broad discretion to determine how
od between the date of the adjournment request and any
charges are laid. The courts generally permit multiple
new trial date set. Defence counsel must ensure that the
counts and multiple accused when there is a legal or
client fully understands the ramifications of waiving
factual nexus between the incidents or parties. Two
such rights, in case the client later claims to not have
accused may be joined on one Information even though
been aware of their rights and tries to invoke this Char-
they are not jointly charged on a common count, if there
ter right at a later point in the proceedings.
is a factual nexus supporting the charges (R. v. Kennedy
(1971), 3 C.C.C. (2d) 58 (Ont. C.A.)). The court may
[§3.17] Obtaining Further Particulars only sever counts or accused when it is satisfied that the
ends of justice require it.
After reviewing the Information or Indictment, defence
counsel may want to make a motion for particulars. Sec- The severance application should be brought before the
tion 587 of the Criminal Code defines what is meant by trial judge. A Provincial Court judge on a preliminary
formal particulars. A distinction should be drawn be- inquiry has no jurisdiction to sever counts. Severance is
tween “particulars” as defined in s. 587, and “disclosure” granted after the election is put to the accused and only if
of the sort made by Crown counsel to defence counsel the trial proceeds (R. v. Anderson (1971), 2 C.C.C. (2d)
before trial: “Particulars” constitute a precise statement 449 (B.C.S.C.)). The application is usually presented at
of the essential elements of the charge faced by the ac- the beginning of the trial, although case management
cused. “Disclosure” refers to the relevant information in practices may affect this timing.
the Crown’s possession or control related to the alleged
Severance of counts is usually sought on the basis that
offence. (For more on disclosing particulars, see §3.03;
the prosecution is too complex to be defended readily,
for more on pre-trial applications, see §4.02.)
there is no factual or legal nexus between the counts, the
The court can order particulars under s. 587, but these counts prejudice the accused because there is a risk evi-
orders are extremely rare. Section 587 contemplates that dence will be misapplied on various accounts or findings
these “formal” particulars be delivered in writing at trial of guilt on various counts will prejudice consideration of
and that they be entered in the trial record. Once entered the evidence on other counts, and the accused wishes to
in the trial record these particulars assume the same im- testify on some counts but not others.
portance as the allegations made in the Information or
Common grounds for applications to sever accused are
Indictment itself. The Crown is bound to prove these
that one accused wants to call the co-accused as a wit-
particulars beyond a reasonable doubt, with failure to do
ness at the trial, the defences of the accused are antago-
so resulting in acquittal. The Crown generally opposes
nistic, and evidence which is admissible against one ac-
applications for particulars because the Crown must then
cused but inadmissible against the other implicates the
prove these further elements of the charge. Note that a
other accused (for example, a confession).
Provincial Court judge at a preliminary hearing has no
power to order particulars (R. v. Hayes, Ex parte Chew, The concern with severance of counts or accused is it
[1965] 2 C.C.C. 326 (Ont. H.C.)). results in multiplicity of trials and inconsistent verdicts.
Generally, the informal particulars provided by Crown In R. v. Clunas (1992), 70 C.C.C. (3d) 115, the Supreme
counsel by way of disclosure far exceed those that would Court of Canada ruled that a trial court can conduct a
be ordered by the court under s. 587, so applications for single trial on two separate Informations when the par-
particulars are rarely made. ties consent. This also permits simultaneous multiple
trials on indictable and summary conviction offences at
When a charge alleges “with intent to commit an indict-
the same time.
able offence,” it has been common for defence counsel
to ask for particulars specifying the indictable offence. A Criminal Code charge that is proceeded with summar-
The Ontario Court of Appeal held in R. v. Khan (1982), ily may be joined with a provincial summary conviction
66 C.C.C. (2d) 32, that it would be inappropriate to re- offence (R. v. Massick (1985), 21 C.C.C. (3d) 128
quire the Crown to furnish particulars limiting the In- (B.C.C.A.)).
dictment so as to charge an intent to commit one offence
and not another. [§3.19] Stays of Proceedings, Withdrawals
and Dismissals for Want of
[§3.18] Joinder and Severance Prosecution
After reviewing the Information or Indictment, defence Stays of proceedings in the case of indictable offences
counsel may also want to consider applying for either are dealt with under s. 579 of the Criminal Code.
joinder or severance. Joinder and severance apply to Section 795 makes s. 579 applicable to stays of
both counts and accused. Sections 589 and 591 of the proceedings of summary conviction offences as well.

Criminal Procedure
 37
In the Provincial Court, Crown stays are “entered” by The objective of the interview is to obtain information
Crown counsel simply directing the court clerk (either in about the following matters:
or out of court) to make an entry on the Information that
1. Client
proceedings are stayed. The power to enter a stay of pro-
ceedings under s. 579 of the Criminal Code is totally Name, date of birth, marital status, education, em-
within the discretion of the prosecutor; neither the judge ployment history, citizenship, previous police
nor defence counsel have any say in the matter. contacts (as accused, victim or witness), roots in
the community, immigration status, medical disa-
Proceedings may be recommenced within one year after
bilities or impairments, doctors’ names, refer-
the date proceedings were stayed, except that summary
ences, social contacts, etc. Much of this infor-
conviction proceedings must be recommenced within the
mation will have been obtained when securing
original time limitation period. If the Crown fails to re-
pre-trial release and will be useful when speaking
commence indictable proceedings within a year of the
to sentence. This is a useful way to begin the in-
date the stay was entered, the Crown is not precluded
terview since the client feels more at ease when
from commencing a new process or issuing a direct in-
providing this information than when speaking
dictment.
about the offence.
The Crown has a right of withdrawal separate and dis-
2. Offence
tinct from the ability to direct a stay of proceedings.
There is no provision in the Criminal Code allowing the Obtain the client’s version of the incident. There
“withdrawal of the Information.” However, the Attorney is a wide variation in practice and technique in
General’s authority to withdraw an Information at its how you obtain it. Ethical aspects are a major is-
discretion prior to plea and with leave of the presiding sue here. The following are some approaches:
judge after plea has been recognized in the case law: see
• Let the client say anything, no matter how in-
R. v. Carr (1984), 58 N.B.R. (2d) 99 (N.B.C.A.); R. v.
culpatory. Such statements during the inter-
McHale, 2010 ONCA 361. This procedure is not com-
view are not on oath. If the client later contra-
monly used by Crown counsel in BC, who instead direct
dicts themselves in the witness box, it can be
a stay of proceedings. If a prosecutor were to withdraw a
rationalized that it is the “statement on oath
charge, the customary procedure is for the prosecutor to
that counts,” and the lawyer should not be
apply to the judge for “leave to withdraw” the charge,
concerned about the contradiction.
giving a short explanation as to why. At times, the com-
plainant will be asked to tell the court their own position • Let the client say anything, and if the client
respecting the application. incriminates themselves and insists on giving
exculpatory evidence inconsistent with what
On occasion, when the Crown is not able to proceed on
they have said to be the truth, they will be re-
the trial date, the Crown may, instead of entering a stay
ferred to other counsel.
of proceedings, allow a matter to be dismissed for want
of prosecution. This may occur, for example, when a • Tell the client not to say anything if the client
Crown adjournment request has been refused, because it will be incriminating themselves. Advise the
is considered by some to be an affront to the judge to client as to the available defences and what
then stay the charge. When dismissing a charge for want facts would support such defences, and then
of prosecution, the Information is read to the accused, an ask for their rendition of the events.
election is taken if necessary, and the accused then
Since the interview raises ethical and other pro-
pleads not guilty. No evidence is called, and the charge
fessional issues, carefully consider the approach
is dismissed.
before the interview starts.
[§3.20] Interviewing Clients 3. Arrest, Detention and Searches
Obtain information on these matters from the cli-
Ideally, defence counsel should conduct two distinct
ent. Pay attention to possible Charter violations.
interviews with the client. The pre-bail interview will
not include the depth of detail necessary for the pre-trial 4. Statements and Confessions
interview. At the pre-trial stage, defence counsel should
Whether the statements or confessions were made
control the interview. Counsel must control the client,
to police or otherwise, obtain full details with par-
the interview process, the facts of the case (by limiting
ticular attention to voluntariness (threats, promis-
discussion to certain matters), and the issues that are
es, oppression, operating mind, or other trickery)
emerging. The lawyer is retained to do a job for the
and possible Charter violations (including breach
client, and takes instructions, but does not follow orders.
of the right to counsel enshrined in s. 10 of the
Charter).

Criminal Procedure
 38
5. Evidence fees at the first opportunity, in a forthright manner, re-
duces the possibility of misunderstandings later.
Were fingerprints, photographs, or blood, hair or
urine samples taken? Was a lineup held, and if so, Counsel acting in criminal matters should also be aware
under what circumstances? See Chapter 5. that they cannot withdraw for non-payment if there is
insufficient time before trial for the client to obtain the
6. Real Evidence
services of another lawyer and for that other lawyer to
Did the police seize any documents, clothing, prepare adequately for trial, and an adjournment would
firearms, other weapons, money, contraband, or be adverse to the client’s interests (BC Code rule 3.7-5).
property of any nature, and if so, under what cir- The rights of counsel to withdraw and obligations not to
cumstances? do so in certain situations are discussed in more detail in
§3.23.
7. Physical Injuries or Complaints
The following would be an acceptable format for inter-
Obtain full details of physical injuries or com- viewing the client (see also the much more detailed
plaints. “Criminal Procedure” and “Client Identification and
8. Witness and Defence Evidence Verification Procedure” checklists in the Law Society’s
Practice Checklists Manual):
As defence witnesses and evidence often vanish
quickly, obtain full details including names, ad- (a) verify the client’s identity as required by Law
dresses and whereabouts of incident witnesses. Society Rules 3-98 to 3-110, and obtain ante-
Review the location and preservation of real evi- cedents to help prepare the case;
dence, such as receipts or photographs. Consider (b) explain the Information to the client so that the
suggesting to your client that they should tell de- client understands the nature of the charges;
fence witnesses to make notes to themselves of (c) tell the client about the police particulars;
their evidence while it is still relatively fresh in
their minds. Although it is preferable that defence (d) ask the client to tell their own side of the story
counsel communicate directly with each of the de- and allow the client to give the narrative without
fence witnesses, often the client is in a better posi- interruption, categorizing the issues and
tion to speak with such people. defences;

9. Advice for Client (e) ask the client to repeat the story, focusing on the
critical issues;
Depending on the background of the client, it may
be necessary to provide basic information on the (f) give the client advice and decide on a course of
workings of the legal system and what steps will action; and
be taken in the prosecution (for example, options (g) discuss the fee.
for trials, preliminary hearing, etc.). Practical
steps the client can take should also be The above information will help when preparing the case
considered. It may be useful at an early stage to for hearing and will also be relevant for sentencing. If
plan a course of action to cover client problems you obtain full information at this stage, it will be un-
such as alcohol and drug abuse, if the client is necessary to have more than a very short interview when
willing to start a rehabilitative program that will preparing to speak to sentence.
assist in the event of ultimate conviction or guilty At this time, you might also canvass these matters:
plea. The importance of witnesses, and of
appearing for court, should also be covered. • discussing possible sentences with the client
(which should be canvassed at the first interview);
After the above information is obtained, the client • getting suggestions from the client as to which type
should be advised that under no circumstances should of sentence the client would prefer;
they discuss these matters with anyone other than the • discussing the client’s ability to pay a fine;
lawyer. The client can then be advised, in a general way,
as to the procedural steps that will occur. • discussing whether the client needs time to pay an
anticipated fine; and
A final, important matter is agreeing on your fee. Pro- • discussing whether the client would prefer straight
vide the client with as accurate an estimate as possible of or intermittent incarceration.
the ultimate cost of conducting the defence. In addition,
advise the client of how and when the client should For preparing to speak to sentence, see Chapter 8.
make payment, and the extent to which you can expend
funds for the client. Advise the client that if the client
does not honour the fee obligation, you will apply to
withdraw from the record. Dealing with the matter of

Criminal Procedure
 39
[§3.21] Witness and Client Statements ly their version of the incident, but also sufficient
background to identify the witness to the court.
When preparing for a hearing, Crown and defence coun-
Be sure to make it clear to the accused whether they
sel should closely review the statements of all witnesses
are responsible for arranging for all incident and
and the accused. The Crown must provide the defence
character witnesses to attend interviews.
with copies of all statements relevant to the case. These
statements include written statements given by civilian Section 698(1) sets out the test for obtaining a sub-
Crown witnesses to the police. Similarly, the Crown poena: see R. v. Blais, 2008 BCCA 389. When it is
must provide the defence with copies of all statements necessary to subpoena a witness, defence counsel
that have been made by the accused and any co-accused. should have the subpoena typed on forms that are
available at the court registries. The subpoena
When witnesses provided written statements, defence
should comply with Form 16 (s. 699). Deliver the
counsel will want to have copies of them. The form and
subpoena to the appropriate court registry to be
condition of the document on which the statement is
signed by a justice of the peace (Provincial Court)
written and the character of the handwriting itself will
or clerk of the court (Supreme Court). Then, ar-
give some indication of the circumstances under which
range for service.
the statement was taken. Also, at trial, counsel will want
to check that the evidence provided by the witness in For valid service of a subpoena, the subpoena must
court is consistent with the statement. be served by a peace officer (ss. 701 and 509 of the
Criminal Code, taken together). If counsel will be
When a statement has been recorded or videotaped, it is
seeking a “material witness” warrant to enforce the
important to listen to or watch the statement, as there
appearance, the subpoena must be served by a
may be important features of the witness’s demeanor,
peace officer. Despite the broad definition of “peace
language, or presentation that will assist counsel in
officer” in s. 2 of the Criminal Code, it appears that
preparing to examine or cross-examine the witness that
“Parliament intended to restrict its meaning to a
may not be evident from simply reading a transcript.
person employed in an official capacity to serve a
The witness may use a copy of the statement to help re- Crown-appointed officer or a court” (R. v. Burns
fresh their memory and, if so, may be asked to produce it (2002), 170 C.C.C. (3d) 288 (Man. C.A.)).
in court for inspection and to be cross-examined upon it.
Sheriff services do not normally advise the Crown
Statements made by a witness who later recants at trial
of defence subpoenas, but in the rare case when the
may themselves be given in evidence and used for the
defence is particularly anxious to ensure that the
truth of those statements as exceptions to the hearsay
Crown not learn the whereabouts of a witness,
rule—see the discussion in Chapter 5.
counsel might consider serving subpoenas by other
Remember that the trial judge has discretion, on applica- means. The Crown, for example, mails subpoenas
tion by either party, to admit the witness statement as an to some willing witnesses. Similarly, an accused or
exhibit. This should be done rarely: the damaging nature someone on the accused’s behalf can give a sub-
of a statement so admitted may outweigh the advantages poena to a witness. However, this form of service
gained by inconsistencies disclosed. An edited version relies on the witness’s goodwill or ignorance be-
may be made an exhibit instead of the entire statement cause if the witness does not appear, no “material
(R. v. Rodney (1988), 46 C.C.C. (3d) 323 (B.C.C.A.)). witness” warrant can be obtained to enforce the ap-
pearance (see s. 698(2)).
Due to illness or absence abroad, a witness may not be
available to give their evidence at trial. In such When the registry issues (signs) the subpoena, no
circumstances, counsel should consider applying to copy is kept and defence counsel need not file the
obtain the witness’s evidence on commission pursuant to copy with the completed affidavit of service, unless
ss. 709 and 712 or to permit the witness to testify by a material witness warrant is being sought for a
audio or video link pursuant to ss. 714.1–714.8. witness who fails to appear (see s. 698(2)). In such
cases, when a subpoena has been properly served
[§3.22] Witnesses and the witness is material, the court will normally
grant an adjournment to allow time for the witness
1. Types of Witnesses and Procedure
to be arrested on the warrant.
There are three basic categories of witnesses: inci-
When interviewing witnesses (and clients who are
dent witnesses, expert witnesses, and character wit-
going to testify), it may be useful to simulate some
nesses. As incident witnesses and evidence often
cross-examination questions and to go through
vanish quickly, obtain full details, including names,
questions to be asked in chief. This is not to coach
addresses and present whereabouts, as soon as pos-
answers, but rather to make witnesses aware of and
sible. Eyewitnesses should be interviewed without
comfortable with the process, and to test their de-
delay. Obtain a written statement from them. It is
meanour in assessing whether to call them.
good practice to obtain from these witnesses not on-

Criminal Procedure
 40
Counsel must not advise a witness to refuse to v. Tarrant (1981), 63 C.C.C. (2d) 385 (Ont. C.A.);
communicate with an opposing party or the party’s see also R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146
lawyer, as “there is no property in a witness.” How- (B.C.C.A.)).
ever, it is not improper for counsel to advise a wit-
Before calling this type of evidence, carefully con-
ness that if the witness decides, for any reason, that
sider what the Crown might be able to call in rebut-
they do not want to be interviewed by either Crown
tal. The accused or any witness, including prosecu-
or defence counsel, they cannot be compelled to
tion witnesses during cross-examination, may put
submit to an interview before testifying at either a
character in issue by asserting the accused is of
preliminary inquiry or trial.
good character. This allows the Crown to call rebut-
The particulars provided by the Crown seldom tal evidence of bad character.
contain the addresses of Crown witnesses. Counsel
Character witnesses are often presented without
who wish to interview a Crown witness may ask the
enough preparation so that their evidence is not as
prosecutor to disclose the contact information. The
effective and convincing as it could be. Many de-
prosecutor will likely have concerns about the
fence counsel seem unsure of exactly what evidence
safety and privacy of witnesses, so Crown counsel
the character witness should give. Preparing a wit-
will likely relay the defence request to the witness,
ness is often done at the last minute. It is very im-
who can decide whether to call defence counsel.
portant to have a thorough interview with character
Alternatively, defence counsel may bring an
witnesses so that they are prepared to give evidence
application for disclosure of the witness contact
on the following four matters:
information: R. v. Pickton, 2005 BCSC 967; R. v.
Charlery, 2011 ONSC 2952. 1. the character witness’s own credibility and
reputation (this must be established as a foun-
Defence counsel should take care to ensure their
dation to the rest of their evidence);
client does not get into a situation in which an alle-
gation of tampering with a Crown witness is made. 2. the witness’s contact with and exposure to the
Although “there is no property in a witness,” it may accused person;
be wise to seek the Crown’s cooperation when ar-
3. the witness’s ability to comment on the ac-
ranging defence interviews with Crown witnesses.
cused’s general reputation in the community
The Crown must disclose all potential witnesses to for the character trait involved; and
the defence (R. v. Franks (1991), 67 C.C.C. (3d)
4. the general reputation of the accused in the
280 (B.C.C.A.)). Having done so, the Crown has no
community regarding the relevant character
obligation to call a witness who would contradict or
trait.
impeach other Crown evidence, unless that witness
is essential to the unfolding of the narrative.
[§3.23] Withdrawal as Counsel3
2. Expert Witnesses
Counsel do not have an unfettered right to withdraw.
The possibility of using expert witnesses is often The fiduciary nature of the solicitor-client relationship
overlooked. When preparing for trial, defence coun- means that counsel is limited in their ability to withdraw
sel should consider how to make better and more from a case once they have chosen to represent an ac-
frequent use of expert evidence. If the decision is cused: R. v. Cunningham, 2010 SCC 10 at para. 9. These
made to use expert evidence, the expert should be limits are outlined in the rules of professional conduct.
properly prepared to ensure that they give evidence
in the most effective and understandable manner. Section 3.7 of the BC Code governs the right of counsel
Unfortunately, some experts use incomprehensible to withdraw from criminal cases (and from other mat-
language and tend to assume everyone understands ters). See specifically rules 3.7-4, 3.7-5, 3.7-6 and com-
what they say. This problem can be resolved by a mentary [1] (“Withdrawal from Criminal Proceedings”):
careful interview. 3.7-4 If a lawyer has agreed to act in a criminal case
and the interval between a withdrawal and the trial of
Section 657.3 sets out the provisions governing ex- the case is sufficient to enable the client to obtain an-
pert evidence called by both the Crown and de- other lawyer and to allow such other lawyer adequate
fence. For more on expert evidence, see Chapter 5. time for preparation, the lawyer who has agreed to act
may withdraw because the client has not paid the
3. Character Witnesses
Defence counsel can sometimes overlook the im-
portance of using character witnesses. Effective 3 Some material in this section is reproduced from “Withdrawal of
character evidence goes to the improbability of the counsel in criminal matters – implications of R. v. Cunningham”
accused committing the offence and to the ac- in Benchers’ Bulletin, Summer 2010 at pp. 16–17. Edited for
cused’s credibility if the accused gives evidence (R. PLTC.

Criminal Procedure
 41
agreed fee or for other adequate cause provided that the The Law Society Ethics Committee recommends that a
lawyer: lawyer who proposes to withdraw because of a client’s
(a) notifies the client, in writing, that the lawyer is failure to comply with the financial terms of a retainer
withdrawing because the fees have not been should take the following steps:
paid or for other adequate cause;
• advise the client in writing that the lawyer will
(b) accounts to the client for any monies received apply to withdraw from the case unless the client
on account of fees and disbursements; provides the necessary retainer by a certain date.
(c) notifies Crown counsel in writing that the The date must be one that leaves the client enough
lawyer is no longer acting; time to retain other counsel if the client is unable to
(d) in a case when the lawyer’s name appears on come up with the necessary funds; or
the records of the court as acting for the ac-
cused, notifies the clerk or registrar of the ap- • act for the client in a limited capacity only, and do
propriate court in writing that the lawyer is no not go on the record for the client until the client
longer acting; and has provided the necessary retainer for the trial or
(e) complies with the applicable rules of court.
other matters requiring representation.
3.7-5 If a lawyer has agreed to act in a criminal case In criminal matters, a judge may exercise their discretion
and the date set for trial is not such as to enable the to prevent withdrawal by counsel if the withdrawal is a
client to obtain another lawyer or to enable another result of non-payment of the lawyer’s fees: Cunningham.
lawyer to prepare adequately for trial and an Where counsel seeks to withdraw far enough in advance
adjournment of the trial date cannot be obtained of any scheduled proceedings and an adjournment will
without adversely affecting the client’s interests, the not be necessary, the court should allow the withdrawal
lawyer who agreed to act must not withdraw because of without inquiring into counsel’s reasons for withdrawing
non-payment of fees. (para. 47). In such cases, it may be that an application to
3.7-6 If a lawyer is justified in withdrawing from a withdraw is not required; rather counsel may withdraw
criminal case for reasons other than non-payment of by notifying the client, the Crown and the registry.
fees and there is not a sufficient interval between a no- However, if timing is an issue (i.e. an adjournment of the
tice to the client of the lawyer’s intention to withdraw trial is required), counsel should attend court to apply to
and the date on which the case is to be tried to enable withdraw. In those circumstances, the court is entitled to
the client to obtain another lawyer and to enable such inquire further (para. 48).
lawyer to prepare adequately for trial, the first lawyer,
unless instructed otherwise by the client, should at- If counsel is withdrawing for ethical reasons, the court
tempt to have the trial date adjourned and may with- must grant the request to withdraw (para. 49). Counsel
draw from the case only with the permission of the may cite “ethical reasons” as the reason for withdrawal
court before which the case is to be tried. if, for example, the accused is requesting that counsel act
Commentary [1] If circumstances arise that, in the in violation of their professional obligations, or if the
opinion of the lawyer, require an application to the accused refuses to accept counsel’s advice on an im-
court for leave to withdraw, the lawyer should prompt- portant trial issue (para. 48). However, if the real reason
ly inform Crown counsel and the court of the intention for the withdrawal is non-payment of fees, counsel can-
to apply for leave in order to avoid or minimize any in- not represent to the court that they seek to withdraw for
convenience to the court and witnesses. “ethical reasons” (para. 48).
In some circumstances a lawyer is obliged to withdraw. If the disclosure of information related to the payment of
This is governed by rule 3.7-7 of the BC Code: the lawyer’s fees is unrelated to the merits of the case
3.7-7 A lawyer must withdraw if: and does not prejudice the accused, the lawyer may
(a) discharged by a client; properly disclose such information to the court, as the
non-payment of legal fees does not attract the protection
(b) a client persists in instructing the lawyer to of solicitor-client privilege (para. 31). However, in either
act contrary to professional ethics; or
the case of withdrawal for ethical reasons or non-
(c) the lawyer is not competent to continue to payment of fees, the court must accept counsel’s answer
handle a matter. at face value and not enquire further, to avoid trenching
Examples of a client instructing the lawyer “to act con- on potential issues of solicitor-client privilege (para. 48).
trary to professional ethics” would be when a client indi- Where counsel is applying to withdraw for non-payment
cates to a lawyer that the client intends to offer false tes- of fees, the court may exercise its discretion to refuse
timony or intends to suborn the perjury of a witness. counsel’s request. The court’s discretion must be exer-
The technical manner of withdrawal is governed by rules cised “sparingly” and only when necessary to prevent
3.7-8 and 3.7-9 of the BC Code. A lawyer must promptly serious harm to the administration of justice. “Harm to
notify the client, other counsel and the court or tribunal the administration of justice” recognizes that there are
of the lawyer’s withdrawal from a file (rule 3.7-9). other persons affected by the ongoing and prolonged

Criminal Procedure
 42
criminal proceedings (i.e. complainants, witnesses, ju- If the lawyer’s withdrawal occurs under BC Code
rors and society at large) (para. 51). rule 3.7-2
In Cunningham at para. 50, the Supreme Court of Cana- In other circumstances, if the lawyer is permitted to
da set out the following non-exhaustive list of factors withdraw under section 3.7 of the BC Code, but the
that a court should consider when determining whether circumstances do not engage the lawyer’s ethical ob-
allowing withdrawal would cause serious harm to the ligations, the lawyer may be permitted to advise the
administration of justice: court that the lawyer’s reasons for withdrawing do
not involve the lawyer’s financial arrangements with
1. feasibility of the accused representing themselves; the client. Such circumstances could occur under
2. other means of obtaining representation; rule 3.7-2 of the BC Code which permits a lawyer to
3. impact on the accused from delay in proceedings, withdraw when there has been a serious loss of con-
particularly if the accused is in custody; fidence between lawyer and client. Commentary [1]
to rule 3.7-2 states:
4. conduct of counsel, e.g. if counsel gave reasona-
ble notice to the accused to allow the accused to A lawyer may have a justifiable cause for with-
drawal in circumstances indicating a loss of confi-
seek other means of representation, or if counsel dence, for example, if a lawyer is deceived by the
sought leave of the court to withdraw at the earli- client, the client refuses to accept and act upon the
est possible time; lawyer’s advice on a significant point, a client is
5. impact on the Crown and any co-accused; persistently unreasonable or uncooperative in a
material respect, or the lawyer is facing difficulty
6. impact on complainants, witnesses and jurors; in obtaining adequate instructions from the client.
7. fairness to defence counsel, including considera- However, the lawyer should not use the threat of
tion of the expected length and complexity of the withdrawal as a device to force a hasty decision by
proceedings; and the client on a difficult question.
8. the history of the proceedings, e.g. if the accused If the lawyer’s withdrawal is for non-payment of fees
has changed lawyers repeatedly.
If a lawyer seeks to withdraw because a client has not
The threshold for refusing leave to withdraw is high (pa- paid the lawyer’s fees, the lawyer must disclose that
ra. 54). Courts should not interfere with counsel’s with- information to the court when asked to explain the
drawal unless it is necessary to do so to prevent serious withdrawal. (See rule 3.7-9.1 and commentary [1]).
harm to the administration of justice (para. 45). Howev-
er, a court’s order refusing a request to withdraw may be What if a lawyer cannot disclose the reason for with-
enforced by the court’s contempt power (para. 50). drawal?
If a lawyer is unable to answer a court’s request for
As timeliness of the application for withdrawal is a fac-
the reason for withdrawal because the reason goes to
tor that may influence the court’s decision whether to
the merits of the case or the client will be prejudiced
inquire into the reasons for the withdrawal, counsel
by disclosing the information, the lawyer should
should consider bringing the application early enough in
simply advise the court of that fact. A lawyer who
the proceedings that an adjournment of the trial will not
expects to be in such a position may want to consult a
be necessary. If a lawyer decides to withdraw in a way
Bencher or Law Society Practice Advisor.
that contravenes section 3.7 of the BC Code, the Bench-
ers may take disciplinary action. When must counsel appear in court to withdraw from
If a lawyer’s reason for withdrawal goes to the merits of a criminal matter?
the case or would cause prejudice to the client, solicitor- If counsel’s withdrawal raises no issue about ad-
client privilege may attach to the information: Cunning- journment of the case, counsel may withdraw from a
ham at para. 31. The Law Society Ethics Committee criminal case by notifying the client, the Crown and
suggests a lawyer may give the following explanations the appropriate registry of the withdrawal. If the
to the court: withdrawal may raise such an issue, however, coun-
If the lawyer’s withdrawal is for ethical reasons sel should attend at court to withdraw.
If a lawyer seeks to withdraw from a case because the
lawyer is in a conflict, has received instructions from
the client that require the lawyer to cease acting or
for other reasons relating to the lawyer’s ethical
obligations, the lawyer may advise the court that they
are withdrawing “for ethical reasons.”

Criminal Procedure
 45

Chapter 4 The judge can also limit the issues and witnesses at
the preliminary inquiry (s. 537).

The Trial1 The Provincial Court Criminal Caseflow Manage-

ment Rules (the “CCFM Rules”) are in effect
throughout British Columbia and provide for a sim-
plified process of appearances and scheduling hear-
ings and trial dates where such matters are uncon-
[§4.01] The Preliminary Inquiry tested. The CCFM Rules are supplemented by Prac-
tice Directions issued by the Chief Judge. In 2013,
1. Election Procedure
the authority of Judicial Case Managers (also called
When an accused who is charged with an indictable “JCMs”) was expanded to enable most non-
offence punishable by 14 years or more of impris- contested appearances to occur before a JCM. Both
onment elects to have a trial in Supreme Court, ei- the CCFM Rules and various Practice Directions
ther before a judge alone or a judge and jury, the provide for a simplified process which utilizes con-
Provincial Court judge who takes the accused’s sent remands and arraignment to allow counsel to
election (or another judge of the same court) will facilitate initial appearances.
hold a preliminary inquiry if the accused or Crown
Practice Directive CRIM 02 requires an arraign-
requests one.
ment hearing for all indictable matters. Disclosure,
An accused charged with multiple counts on an In- admissibility issues, Charter arguments and possi-
formation may be entitled to request a preliminary ble admissions are discussed at the arraignment
inquiry for some counts on the Information but not hearing. Elections pursuant to s. 536(2) and
others. For example, where both aggravated assault 536(2.1) of the Criminal Code must be taken at the
and assault with a weapon are charged on the same arraignment hearing, and all preliminary inquiry
Information and the election is made for a Supreme procedures described in ss. 536(4) and 536.3 will be
Court trial, a preliminary inquiry can only be re- completed at that hearing (CCFM Rules, Rule 8 and
quested on the count of aggravated assault. The Practice Directive CRIM 02).
election must be recorded under s. 526(2) for the
In addition, the court (on its own motion, or at the
aggravated assault count and s. 526(2.1) for the as-
request of counsel) may order a “focusing” hearing.
sault with a weapon count.
A focusing hearing is not mandatory; its purpose is
An accused who wants a preliminary inquiry must to help the parties identify the issues on which evi-
request one when electing the mode of trial. If no dence will be given at the preliminary inquiry, help
request for a preliminary inquiry is made, the jus- the parties identify the witnesses to be heard, and
tice must fix a date for trial in the event of a Provin- encourage the parties to consider any other matters
cial Court election, or a date to attend to the Superi- that would promote a fair and expeditious inquiry
or Court to fix a date for trial if there has been an (s. 536.4). The result of the focusing hearing, in-
election for trial in that place (see s. 536(2),(4), and cluding any admissions, is on the record. The judge
(4.3)). Where two or more accused are jointly who conducts the preliminary inquiry will also con-
charged, a request by one accused for a preliminary duct the focusing hearing.
inquiry triggers a mandatory preliminary inquiry by
Whether or not a focusing hearing is held, the pros-
all co-accused (s. 536(4.2)).
ecutor and the accused may agree to limit the scope
If the accused requests a preliminary inquiry, coun- of the preliminary inquiry to specific issues. This
sel for the accused must provide the court and the agreement is filed with the court and will determine
Crown with a statement identifying the issues on which issues must be considered regarding the test
which the requesting party wants evidence to be for committal to trial.
given at the inquiry and the witnesses that the re-
questing party wants to hear (s. 536.3). The request 2. Election Considerations—Trial or Preliminary
for witnesses forces counsel to think about what ev- Inquiry?
idence or witness they really want to hear, and does
While the strict purpose of a preliminary inquiry is
not affect the ultimate discretion of the prosecution
simply to determine if there is sufficient evidence to
as to who it will call on the preliminary inquiry.
put the accused on trial (s. 548(1)), its practical val-
ue to the accused is much greater. When properly
conducted, a preliminary inquiry allows the ac-
1
Patti Tomasson, Crown Counsel, reviewed this chapter in cused’s counsel to hear and test the evidence that
March 2021 and updated it in 2020 and 2018. Previously updat- the Crown will lead at trial.
ed by Michael J. Brundrett (2010, 2012, and 2016); Mark Jetté
(1999–2004); James Bahen (1997 and 1998); Karen Walker
(1996); and Terence A. Schultes (1995).
Criminal Procedure
 46

When deciding whether to elect to have a prelimi- qualified, and hearsay is subject to the usual legal
nary inquiry or to proceed directly to trial in the tests for admissibility.
Provincial Court, the defence will consider the na-
Though less frequently used, s. 540(7) of the Code
ture and seriousness of the offence, and the extent
permits a justice to receive any evidence in a pre-
to which full disclosure of the Crown’s evidence
liminary inquiry they consider “credible and trust-
has been provided. If the offence is serious and the
worthy in the circumstances of the case” (the same
disclosure made by the Crown is incomplete, the
test used for show causes). This subsection includes
prudent choice is usually to have a preliminary in-
the ability to tender statements provided by wit-
quiry so that the defence can assess the strength of
nesses that would not otherwise be admissible. Rea-
the case against the accused. If the offence is less
sonable notice is required (s. 540(8)). The opposing
serious and the Crown’s evidence has been fully
party may require “any person whom the justice
disclosed, a trial in the Provincial Court carries the
considers appropriate to appear for examination or
advantage of the generally lower sentences that are
cross-examination” with respect to the evidence
imposed in that court in the event of a conviction.
tendered in this manner (s. 540(9)). Evidence ten-
dered pursuant to s. 540(7) cannot be read in at a
3. Limiting the Scope of a Preliminary Inquiry
subsequent trial (s. 646).
A preliminary inquiry may be limited to specific is-
The transcript of evidence given by a police officer
sues if the prosecutor and the accused agree
at a preliminary inquiry may be admitted at trial,
(s. 549(1.1)). For example, the prosecution and de-
provided reasonable notice is given by the Crown.
fence may agree that identification is not in issue. If
(s. 715.01)
that admission is reduced to writing and filed with
the court, Crown counsel will not be required to One significant difference from a trial is that Char-
lead evidence of what would otherwise be an essen- ter remedies are not available on a preliminary in-
tial element of the offence in order to obtain a quiry. A justice presiding at a preliminary inquiry is
committal for trial (ss. 536.5 and 549(1.1)). not a “court of competent jurisdiction” for the pur-
pose of excluding evidence under s. 24(2) of the
If counsel agree to limit the scope of the prelimi-
Charter (R. v. Hynes (2001), 159 C.C.C. (3d) 359
nary inquiry, the justice, without recording evidence
(S.C.C.); R. v. Mills (1986), 25 C.C.C. (3d) 481
on any other issues, may order the accused to stand
(S.C.C)). The preliminary inquiry can play an im-
trial after a limited preliminary inquiry
portant discovery role and will at least permit a full
(s. 549(1.1)). This provision permits counsel to fo-
exploration of Charter breaches, in anticipation that
cus on key issues and save valuable court time
an application for a remedy will be made at trial.
(ss. 536.5 and 549(1.1)). Under amendments that
came into force in September 2019, the preliminary The defence has a key opportunity to use cross-
inquiry judge can also limit the issues and witnesses examination on a preliminary inquiry to investigate
at the preliminary inquiry (s. 537(1.01)). the Crown’s case. Technically, nothing achieved by
the defence, short of a total absence of proof of es-
4. Evidence on Preliminary Inquiry sential elements of the charge(s), will affect the
outcome of a preliminary inquiry, since the judge is
After the accused elects a trial in Supreme Court
not determining guilt but only assessing the suffi-
and requests a preliminary inquiry, the Crown will
ciency of evidence. The evidence of Crown wit-
call its evidence on the preliminary inquiry. If
nesses may be valuable, however. Although the
counsel for the accused so requests, the court must
Crown discloses all relevant material in its posses-
order a ban on publication under s. 539. Also see
sion, whether favourable or unfavourable to the de-
Chapter 2 on publication bans.
fence, the oral evidence of a witness is more de-
The format resembles a trial: witnesses are called tailed than any written statement or summary of ex-
by the Crown, cross-examined by the defence, and pected evidence could be. No advance disclosure by
if necessary, re-examined by the Crown. Note that a the Crown can anticipate the actual evidence that
sitting justice may halt any part of a witness exami- will emerge when a witness testifies. In addition,
nation or cross-examination if the witness is, in the the physical presence of the Crown’s witnesses at a
opinion of the justice, abusive, too repetitive or oth- preliminary inquiry gives the defence a chance to
erwise inappropriate (s. 537(1.1)). assess their demeanour when giving evidence and
to decide on the most effective way to cross-
Many of the rules of evidence are the same as those
examine them at trial.
for a trial. For example, the Crown must prove the
statements of the accused to be voluntary on a voir Most important to the defence is the opportunity
dire, and must provide notice to the defence of its that a preliminary inquiry provides to commit the
intention to enter business records pursuant to s. 30 Crown’s witnesses to their evidence under oath. If
of the Canada Evidence Act. Experts must be at trial the witness departs in a material way from
Criminal Procedure
 47

evidence given under oath at the preliminary in- assertions, so that the witness is bound by those an-
quiry, cross-examination on that inconsistency with swers at trial. For example, where the offence is al-
the aid of a transcript can be very effective. While leged to consist of numerous incidents that have
cross-examining Crown witnesses on the basis of taken place over an extended time period, the wit-
inconsistent statements to the police is a useful tac- nesses should be encouraged during cross-
tic, the witnesses can often explain inconsistencies examination to commit to a specific number of in-
with their present testimony. They might refer to cidents within a definite time period. Any deviation
their emotional state at the time of the statement, or by witnesses at trial from those precise answers will
to the fact that they were not under oath when they allow defence counsel to impeach credibility. Simi-
spoke to the police. But at trial, inconsistencies be- larly, when a witness purports to narrate conversa-
tween their current evidence and the evidence they tions with the accused, counsel makes the witness
gave at the inquiry are all sworn evidence. For this commit to specific words that the accused is alleged
reason, the heart of any effective cross-examination to have spoken and has the witness confirm that
at trial is the skillful exploitation of inconsistencies there are no other conversations relating to this sub-
between the witness’s evidence at trial and what ject matter. Again, witnesses cannot allege addi-
was said at the preliminary inquiry. Given how im- tional conversations at trial without impairing their
portant cross-examination at the preliminary inquiry own credibility.
is to an effective defence, counsel must prepare
It may be unwise to challenge and confront Crown
thoroughly.
witnesses directly when cross-examining at the
Defence counsel must develop a coherent theory of preliminary inquiry. Credibility is not in issue and
the defence based on a thorough review of the the sitting justice lacks the jurisdiction to prefer the
particulars provided by the Crown and the evidence of one witness over that of another. As a
accused’s instructions. Then, defence counsel must matter of tactics, a direct challenge to credibility
determine what portion of the expected Crown will alert the witness to counsel’s line of attack at
evidence is damaging to the theory of the defence trial, and will make the witness less willing to
and devise strategies for approaching this evidence provide the kind of detailed and cooperative
during cross-examination. The most useful of these answers that make a preliminary inquiry useful. On
strategies may be described as “discovery” and the other hand, there may be circumstances that
“limitation.” arise in the course of a cross-examination that will
make confrontation at this early stage a worthwhile
In the discovery approach, defence counsel at a
gamble. Where defence counsel can demonstrate to
preliminary inquiry asks the witnesses non-
Crown counsel that the witness is not believable, a
confrontational, open-ended questions designed to
stay of proceedings or a plea to some lesser charge
uncover the existence of additional sources of
short of trial might result. Judgment is always
evidence favourable to the defence, and to explore
required when deciding whether the tactic of
the outside limits of the evidence a witness is able
confrontation might successfully move the witness
to give. For example, an investigating police officer
to a more agreeable place in their evidence, or the
might be asked if other witnesses were spoken to
Crown toward significant compromise or even
whose names do not appear in the police report, or
surrender.
whether exhibits seized by the police have been
tested forensically. Similarly, a complainant in a Once the Crown has called all its witnesses at the
sexual assault case might be asked for the names of preliminary inquiry, it will close its case, and the
relatives or friends who would have been around at judge will then address the accused in the words of
the time of the alleged offences, or for the names of s. 541(2). This address asks whether the accused
any counselors or therapists who have been wishes to say anything in answer to the evidence
involved in treating the complainant before or since and warns the accused that anything that is said in
the offences were disclosed. The information answer to the charge may be recorded and given in
received from the witnesses in answer to this type evidence at the trial. Since nothing that is said by
of questioning will often allow defence counsel to the accused at this point can affect the outcome of
apply to the trial judge for an order that the Crown the preliminary inquiry, there is almost never an
disclose the full details of the evidence uncovered advantage to making such a statement and the best
in cross-examination. This technique, together with advice to give to the accused is to say nothing.
“hallway” interviews before the witnesses give
After addressing the accused, the judge will ask if
evidence, will alert counsel to dangerous areas in
any witnesses will be called on behalf of the de-
the witnesses’ evidence, which may be avoided
fence. Again, given the purpose of a preliminary in-
before the trier of fact at a trial.
quiry, there is rarely anything to be gained by call-
In the limitation approach, defence counsel narrows ing defence witnesses. However, if the Crown re-
the evidence and commits the witness to specific fuses to call a witness who is crucial to preparing
Criminal Procedure
 48

the defence, defence counsel might consider calling The accused will be discharged if the Crown fails to
that person on behalf of the defence at the prelimi- call evidence on an essential element of the offence.
nary inquiry pursuant to s. 541(5) of the Criminal For example, if the accused has not been identified
Code. Unfortunately, any advantage gained by hav- as the offender, or if there is no evidence that prop-
ing the witness available to the defence will likely erty found in the possession of the accused was ob-
be outweighed by the fact that this witness must be tained by the commission of an indictable offence,
examined in chief by defence counsel and may be the accused will be discharged on that count. It is
cross-examined by the Crown. Since the likely rea- only the entire absence of evidence on an essential
son for the Crown refusing to call the witness in the element that will lead to a discharge at a prelimi-
first place was the witness’s hostility to the prosecu- nary inquiry; if there is any evidence at all, the case
tion and the Crown’s belief that the witness is unre- will be left for the trier of fact at trial.
liable, the Crown may benefit from the opportunity
Pursuant to s. 548(1)(a) of the Criminal Code the
to cross-examine and thereby limit or damage the
judge may order the accused to stand trial if “there
witness’s evidence.
is sufficient evidence to put the accused on trial for
There may be circumstances in which calling a wit- the offence charged, or any other indictable offence
ness is the only way to preserve vital evidence. For in respect of the same transaction.” This means that
example, counsel may know that a key witness is an accused may be committed for offences that do
seriously ill and may die, or is planning to leave the not appear on the Information, so long as evidence
country permanently before the trial. Calling this meeting the test for committal has been tendered
witness may be the only way to preserve critical ev- before the court. A committal on offences different
idence for use at trial. This evidence in transcript from those charged may also arise when the evi-
form may be admissible at trial pursuant to s. 715 of dence led does not meet the required standard for
the Criminal Code, which permits the reading in of that offence, but does meet the test for some lesser
transcript evidence from a preliminary inquiry in included offence. For example, if the charge is rob-
certain limited circumstances. Nevertheless, it will bery, but the evidence fails to show any violence or
be rare for defence witnesses to be called at a pre- any threat of violence surrounding the taking of
liminary inquiry. It is better to persuade the Crown property, the accused may simply be ordered to
to call that witness, if possible. stand trial on the offence of theft.
Note that the defence’s and the Crown’s ability to Rather than seeking a committal on other charges at
call witnesses is limited in the same way under the preliminary hearing, the Crown may later exer-
s. 537(1.01), which allows the judge to limit the cise its option, under Criminal Code s. 574(1)(b), of
scope of the inquiry and the witnesses called at the adding to the Supreme Court indictment any charge
preliminary hearing. founded on the facts disclosed by the evidence tak-
en on the preliminary inquiry.
5. Order Following Preliminary Inquiry
If an accused is charged on an Information with
Once the accused has called any witnesses on be- multiple counts, any argument concerning commit-
half of the defence, or has indicated that no wit- tal should relate to only those counts that were the
nesses will be called, the preliminary inquiry judge subject of the preliminary inquiry: that is, those
will call on defence and Crown counsel for submis- counts punishable by 14 years’ imprisonment or
sions as to whether or not the accused should be or- more.
dered to stand trial. If there is evidence to clearly
support an order to stand trial, experienced defence 6. Direct Indictment
counsel will often make no submission. The test to
The Criminal Code also provides several methods
be applied by the judge in deciding this question is
for avoiding a preliminary inquiry entirely. Where
whether or not there is any evidence upon which a
the accused does not request a preliminary inquiry,
reasonable jury properly instructed could return a
the case is referred directly to the trial court, be it
verdict of guilty (U.S.A. v. Sheppard (1976), 30
the Provincial or Supreme Court, to fix a date for
C.C.C. (2d) 424 at 427 (S.C.C.)). The judge does
trial. (As noted earlier, under recent amendments,
not weigh the evidence heard at the preliminary in-
an accused can only request a preliminary inquiry if
quiry, nor does the judge assess the credibility of
they are charged with an indictable offence punish-
the witnesses. The Crown must simply have put
able by 14 years or more of imprisonment.)
forward a prima facie case, which amounts to some
evidence directed at each element of the offence(s) Pursuant to s. 577, the Crown may obtain a “direct
alleged. The Crown is not required at a preliminary indictment” from the Attorney General, so that the
inquiry to prove its case beyond a reasonable doubt. accused goes directly to the Supreme Court without
having had a preliminary inquiry. Before R. v. Jor-
dan, 2016 SCC 27, this was done only in the most
Criminal Procedure
 49

serious cases, such as murder or conspiracy. Jordan than non-existent, defence counsel should save the
established reasonable lengths of time for an ac- argument for trial.
cused to wait for trial. Since Jordan, direct indict-
There are other potential grounds for a certiorari
ment has become more common.
application. One is the denial of procedural fairness,
Pursuant to s. 549, the accused may consent to be in particular the denial of a full opportunity to
committed to trial at any stage of the preliminary cross-examine a witness on a matter central to the
inquiry, with the Crown’s agreement. This section making of full answer and defence. A superior court
is used only in exceptional cases. For example, if an may quash the committal and send the matter back
accused is charged with murder and indicates a before the Provincial Court judge with an order that
wish to plead guilty without having had a cross-examination of a particular witness proceed at
preliminary inquiry, then a consent committal will the preliminary inquiry (see Forsyth v. R. (1980),
be needed because the Provincial Court does not 53 C.C.C. (2d) 225 (S.C.C.)).
have the jurisdiction to sentence the accused. When
the client wants a trial, a consent committal is
[§4.02] Pre-Trial Applications
undesirable because it means a loss of the discovery
benefits that may flow from a preliminary inquiry.
1. Crown Disclosure
7. Re-election The Crown must make full and timely disclosure to
the defence of all relevant material in its possession,
If things are going particularly well for the defence
whether favourable or unfavourable to the accused.
during a preliminary inquiry, defence counsel may,
This duty is subject to certain exceptions: the
with the consent of the Crown, re-elect before the
Crown need not disclose clearly irrelevant material,
Provincial Court judge and convert the preliminary
privileged material, or matters relating to informers.
inquiry into a trial (Criminal Code s. 561(1)(a)).
The Crown must, however, disclose all material that
Because the preparation by the Crown for a prelim-
may possibly be relevant to either the prosecution
inary inquiry is so different from that for a trial, the
or defence of the charge. The timing of disclosure
Crown may not consent to a re-election when diffi-
may be delayed where early disclosure would prej-
culties in its case arise.
udice a continuing investigation (see R. v. Stinch-
However, if the Crown has called a full case at the combe (1991), 68 C.C.C. (3d) 1 (S.C.C.)).
preliminary inquiry, and no additional evidence
The Crown in British Columbia complies with both
may be expected to emerge before the trial, the
the letter and the spirit of Stinchcombe, so that in
Crown will often consent, particularly when an ac-
most cases defence counsel will have received
quittal is inevitable at trial. When re-election to a
complete disclosure of the case against the accused
Provincial Court trial is a possibility, it is best for
well before the trial date. Occasionally, however,
counsel to alert the judge before commencing the
situations will occur in which defence counsel asks
preliminary hearing, as the judge’s attention and
the Crown to produce material that is in the posses-
note-taking will differ markedly depending upon
sion of third parties, or to produce material when
the nature of the hearing.
relevance is in dispute. In these cases, the defence
must apply to court, before trial, for an order for
8. Review by Certiorari
production of the contentious material.
When a preliminary inquiry judge orders an ac-
If the Crown possesses but refuses to disclose rele-
cused to stand trial in the absence of any evidence
vant materials (such as records of related police in-
on an essential element of the offence, defence
vestigations or criminal records of Crown witness-
counsel may seek a review of the order in Supreme
es), defence counsel may apply to the court for an
Court by certiorari.
order compelling disclosure. Counsel prepares an
Once again, the standard placed upon a Provincial application, together with any available supporting
Court judge is quite minimal: if there was some ev- material demonstrating why the requested material
idence before the judge upon which a reasonable ju- is relevant to a matter in issue, and why disclosure
ry could convict, the order to stand trial will not be is necessary in order for the accused to make full
interfered with. The reviewing court will not substi- answer and defence. Where possible, disclosure ap-
tute its opinion for that of a Provincial Court judge plications should be made well before the trial date
as to whether the evidence relied upon was in fact so that the defence will not have to seek an ad-
sufficient (R. v. Russell (2001), 157 C.C.C. (3d) 1 journment once the requested material is received.
(S.C.C.)). It is only the entire absence of evidence These applications must be made to a trial court; a
on an essential element that will lead to a quashing preliminary inquiry justice does not have jurisdic-
of the order to stand trial. When the Crown’s evi- tion to compel Crown disclosure (see Stinchcombe).
dence is merely weak on a given element rather
Criminal Procedure
 50

2. Third Party Records and Sexual History serve notice on the Crown, the person in possession
If the application is for medical or psychiatric rec- of the records, the complainant to whom the records
ords that are in the possession of third parties (such relate, and any other person with an interest in the
as therapists) or the Crown, the procedure to be fol- confidentiality of the records.
lowed is set out in ss. 278.1–278.91 of the Criminal No matter how obtained, an order for disclosure to
Code (the “Mills regime”). These provisions were the defence of third-party records does not include
implemented in response to the decision of the Su-
preme Court of Canada in R. v. O’Connor (1995), an automatic right to use any of that material in
103 C.C.C. (3d) 1 (S.C.C.). court, for cross-examination or otherwise. Cross-
examination may be restricted and rulings may be
The application proceeds in stages. The defendant required before certain types of testimony can be
brings an application after having given notice to given. The ultimate relevance of the evidence ob-
the records custodian and anyone whose privacy in- tained from this disclosure is a matter for the trial
terests may be affected by disclosure (most com- judge.
monly, the complainant). The custodian also re-
ceives a subpoena. Counsel need to pay special attention to rules re-
stricting questions regarding a complainant’s prior
A judge may order the person who has possession sexual activity. Section 276 of the Criminal Code
or control of the record to produce it to the court for sets out a procedure that must be followed where
review, once the judge is satisfied that the applicant these questions are proposed. The procedure re-
has established that the record is likely relevant to quires that a notice of motion be filed. The notice
an issue at trial or to the competence of a witness to must describe the specific instances of sexual ac-
testify, and that producing the record is necessary in tivity, how that activity is relevant to an issue at tri-
the interests of justice (s. 278.5(1)). This section al, and why it is that this evidence has significant
sets out the factors the court will consider in deter- probative value that is not substantially outweighed
mining whether the court will order production. by prejudice to the proper administration of justice
If the judge orders that the record be produced, the (see ss. 276–276.4). At the resulting hearing (under
judge must review the record in the absence of the s. 278.93–278.94) on admissibility, the jury and
parties to determine whether any part of it should be members of the public are excluded.
produced to the accused (s. 278.6). A judge may
order a record to be produced to an accused 3. Defence Disclosure
applicant if the judge is satisfied that the record, or In some circumstances, the defence must disclose
part of it, is likely relevant to an issue at trial or to material to the Crown. Case law has established that
the competence of a witness to testify, and its where the defence elects to call an expert witness to
production is necessary in the interests of justice give opinion evidence at trial, documents such as a
(s. 278.7). In making that determination, the court report prepared by that expert witness for the de-
considers the probative impact of disclosure on the fence may, in limited circumstances, result in an or-
accused’s right to make full answer and defence and der that the report and other supporting documents
weighs the prejudicial effect and the rights of the be disclosed to the Crown, even before the witness
person to whom the record relates. The Supreme gives evidence in chief. The court will rule that the
Court of Canada found these provisions to be act of calling the defence expert constitutes waiver
constitutional in L.C. (the complainant) and the of any privilege attaching to the report, and may
Attorney General for Alberta v. Mills, (1999) 139 find that a reference to the report in defence coun-
C.C.C. (3d) 321. sel’s opening address is similarly a waiver of privi-
The above provisions only apply to certain sched- lege, giving rise to an order that the report be dis-
uled sexual offences in the Criminal Code closed to the Crown (R. v. Stone (1999), 134 C.C.C.
(s. 278.2). For production of materials from third (3d) 353 (S.C.C.)).
parties in relation to offences that do not appear on Following on the heels of Stone, Parliament legis-
this list, the common law rules outlined by the Su- lated defence disclosure of expert reports. Sec-
preme Court of Canada in O’Connor apply. The tion 657.3 of the Criminal Code requires that a par-
common law rules are similar to the procedures ty (Crown or defence) who intends to call a person
provided in the Criminal Code for sexual offences, as an expert witness shall, at least 30 days before
but in some respects are somewhat less restrictive the trial begins, give notice to the other side of their
for the applicant seeking disclosure. See also R. v. intention to do so. That notice must include the
McNeil (2009), 238 C.C.C. (3d) 535 (S.C.C.) re- name of the witness, a description of their area of
specting police disciplinary records. expertise, and a statement of qualifications. The
To obtain disclosure of such records, defence coun- Crown must provide a copy of its expert report to
sel must apply formally to the trial judge and must the defence “within a reasonable period before the

Criminal Procedure
 51

trial,” while the defence must disclose its report to required to attend, or might do so voluntarily. The
the Crown “not later than the close of the case for Crown must file a synopsis of its case, which is used
the prosecution.” Failure to meet these notice provi- only as a case management tool. The presiding judge
sions will not render the report inadmissible, but asks counsel about such matters as the anticipated length
may give rise to other remedies, including adjourn- of the trial, the likelihood of any Charter applications,
ments and the calling of evidence in rebuttal. The the adequacy of disclosure by the Crown, and whether
Crown is not permitted to produce into evidence the jury should attend on the first day of the trial. The
any part of the material disclosed by the defence judge may make orders about the conduct of the trial and
when, for whatever reason, the defence chooses not may schedule additional conferences before the trial if
to tender the report into evidence. any important issues remain unresolved.
The common law has long required timely and spe- In practice, the effectiveness of pre-trial conferences is
cific disclosure of the defence of alibi. If the de- directly related to how well counsel prepare. If both
fence presents evidence of an alibi for the accused, counsel are well-prepared, valuable court time can be
but fails to disclose the details of the alibi to the saved. In some cases, guilty pleas follow the conference.
Crown before trial, the trier of fact can give less Counsel who want to make the conference productive
weight to the alibi. The timing of the notice must should write to the other side in advance, setting out the
leave sufficient time before trial to allow the Crown issues to be resolved, and seeking agreement on non-
to act on the notice and attempt to verify specific contentious matters.
details of the alibi defence (R. v. Cleghorn (1995),
Additional procedural mechanisms have been adopted to
100 C.C.C. (3d) 393 (S.C.C.)).
assist in the management of large trials. A “case man-
agement judge” may be appointed by the Chief Justice
4. Testimonial Supports and Accommodations
or Chief Judge under s. 551.1(1) to assist in promoting a
In some situations it might be necessary to make fair and efficient criminal trial. In addition, where there
pre-trial applications for orders about the manner of are related trials with similar issues and a joint hearing
testimony. Perhaps a witness outside the jurisdic- would assist, the Chief Justice or Chief Judge may make
tion may be accommodated by allowing testimony an order under s. 551.7(1) for a joint hearing.
by electronic means, or perhaps witnesses who are
suffering from trauma may testify in the presence of
[§4.04] Jury Selection
a support person.
If a translator is required on a pre-trial matter, the Every person who is charged with an indictable offence,
party who needs translation might be allowed by the except those offences listed in s. 553 of the Criminal
justice to have a family member or friend translate. Code, is entitled to a trial by a jury, unless the accused
For the trial, however, a certified court interpreter is chooses to be tried by a judge of the Supreme Court sit-
required, and must be arranged with the registry in ting without a jury, or by a Provincial Court judge.
advance, although there is no charge.
See s. 536 of the Criminal Code for the available elec-
tions, and s. 11(f) of the Charter for the constitutional
[§4.03] Pre-Trial Conferences right to a jury trial.
If the trial is by judge and jury, the proceedings begin
Subsection 625.1(2) of the Criminal Code requires that a
with the selection of the jury. For jury trials in New
pre-trial conference be held for all jury trials. Such a
Westminster and Vancouver, potential jury members are
conference may be held for other kinds of trials, with the
assembled in groups on designated jury selection days,
consent of the Crown and defence (s. 625.1(1)).
often weeks before the scheduled trial dates. In other
In the Supreme Court of British Columbia, pre-trial con- jurisdictions, juries are picked just before the trial starts.
ferences are held for all jury trials, trials by direct in-
Jury selection starts with taking the accused’s plea. If the
dictment, longer judge-alone trials of four days or more,
plea is “not guilty,” jury selection follows. A jury panel
and extradition hearings (see Criminal Code s. 625.1,
of sufficient size to fill all the required juries, allowing
Rule 5 of the Criminal Rules for the Supreme Court of
for the fact that not all prospective jurors will be suita-
British Columbia, 1997, and the Supreme Court Crimi-
ble, gathers in the courtroom. The panel can number up
nal Practice Direction—Criminal Pre-Trial Conference
to 200 people, depending on how many trials require
Process, 25 November 2022 (CPD-1)).
juries. These people have been chosen at random from
At the pre-trial conference, the Crown and defence the voters’ list. From this panel each jury of 12 persons
counsel attend in person or by electronic means before a is selected. Lists of the names, addresses, and occupa-
judge of the Supreme Court in chambers. If a trial judge tions of the jurors are provided to each counsel who will
has been assigned to the matter, the pre-trial conference be selecting the juries. Section 631(2.2) of the Criminal
is typically before that judge. The accused might be Code now permits a judge to order that 13 or 14 jurors,

Criminal Procedure
 52

instead of 12, be sworn in if it is advisable in the inter- A prosecutor or an accused is entitled to challenge for
ests of justice (for instance, in particularly long trials). cause for the grounds listed in s. 638, for instance, if the
juror’s name does not appear on the list, the juror is not a
The court clerk draws the names of individual jurors
Canadian citizen, or a juror does not speak either of the
from a box. The selection is random. At the instance of
official languages of Canada. Under s. 638(1)(b), a pros-
the presiding judge, an arbitrary number of potential ju-
ecutor or accused is entitled to argue that a juror is not
rors (usually 10 to 20) will be called forward and will
impartial and invoke a challenge for cause. This may
stand at the front of the courtroom. The sheriff then calls
encompass situations in which a juror or pool of jurors
each potential juror forward one at a time. At this point,
has been subjected to extensive media coverage, or when
the potential juror may indicate to the judge that they are
there is some evidence of racial or other bias in the
unable to serve on the jury.
community that may prejudice a fair trial. A party who
The judge may excuse a juror at any time before trial for demonstrates a realistic potential for bias has the right to
any of the following reasons: personal interest in the challenge potential jurors for cause. The court will usual-
matter to be tried, relationship with the judge, accused, ly resolve doubts in favour of the right to challenge, but
counsel or prospective witness, or other reasonable cause the challenger must satisfy the court:
(s. 632). The judge may also direct a juror to “stand
(a) a widespread bias exists in the community; and
aside” for reasons of personal hardship, maintaining
public confidence in the administration of justice, or any (b) some jurors may be incapable of setting aside the
other reasonable cause (s. 633). These provisions were bias and rendering an impartial decision, despite
recently amended by An Act to amend the Criminal trial safeguards.
Code, the Youth Criminal Justice Act and other Acts and
to make consequential amendments to other Acts, S.C. The presumption that prospective jurors are indifferent
2019, c. 25. As described in the Legislative Background or impartial must be displaced before they can be chal-
to the Act, “maintaining public confidence in the admin- lenged and questioned in these areas (see R. v. Williams,
istration of justice” ensures an impartial jury: [1998] 1 S.C.R. 1128; R. v. Find (2001), 154 C.C.C. (3d)
97 (S.C.C.)).
The Act amends s. 633 to permit a judge to stand aside
a juror to maintain public confidence in the administra- A notice of application to challenge potential jurors for
tion of justice. This tool helps to ensure that potential cause must be filed and delivered to the opposing party
jurors are impartial and capable of performing their du- 30 days in advance of jury selection: see BC Supreme
ties, if selected. The concept of maintaining public con- Court Notice—Challenging Potential Jurors – Applica-
fidence in the administration of justice is already used tion for Leave (NP: 29 July 1999).
in other parts of the Criminal Code and has been inter-
preted by the SCC in St-Cloud (2015) [2015] 2 S.C.R. Prior to September 19, 2019, a challenge for cause was
328 in the context of bail. In this context, decisions are heard by lay persons called “triers.” After September 19,
made on a case by case basis and are based on all rele- 2019, the judge determines whether or not the juror shall
vant circumstances, including the importance of ensur- be sworn (s. 640).
ing that the jury is impartial, competent and representa-
tive. The amendment recognizes and enhances the role Once the jury has been chosen, the judge may invite the
of judges in promoting an impartial, representative and jury to retire and choose a foreperson from among them,
competent jury. although the usual practice is to instruct the jury to wait
a day or two after the trial begins so they get to know
Under the Jury Act, certain individuals are disqualified each other before they select a foreperson. After a jury
from serving as a juror, and would be excused for that has been chosen, the judge instructs the court clerk to
reason. Examples include people who are not Canadian begin the selection of the next jury. If no other juries are
citizens or BC residents, people under the age of 19, cer- to be selected, the judge instructs the remaining mem-
tain federal civil servants, lawyers, peace officers and bers of the jury panel of the date and time they are to
correctional officers. return to participate in the selection process for the next
Prior to September 19, 2019, counsel for the Crown and group of trials.
the defence could challenge a juror they did not wish to Section 631(2.1) of Criminal Code provides a procedure
have on the panel for cause or peremptorily (as of right). for selecting additional or “alternate” jurors where there
Recent amendments to the Criminal Code abolished is to be a break in time between jury selection and the
peremptory challenges. However, in British Columbia, commencement of trial. This kind of delay often occurs
where an accused elected (or was deemed to have when lengthy voir dires are to be completed before the
elected) trial by judge and jury prior to September 19, jury will be required. Courts routinely must replace one
2019, the previous provisions governing jury selection or more jurors when after selection but before the trial
apply, including the right to peremptory challenges (R. v. starts, a juror advises the court of a problem or circum-
Subramaniam, 2019 BCSC 1601). stance that would justify a discharge from jury duties.
Sections 631(2.1) and 631(2.2) of the Criminal Code
allow for the selection of one or two alternate jurors.
Criminal Procedure
 53

Where 13 or 14 jurors remain after the charge to the ju- dresses: R. v. Sandham (2009), 248 C.C.C. (3d) 392
ry, s. 652.1 provides for the reduction of the jury to 12 at (Ont. S.C.J.).2
the end of the trial after the charge and before the jury
retires.
[§4.06] Crown’s Opening in Non-Jury Trials
If the number of jurors falls below 10, s. 644(3) permits
the judge, with the consent of the parties, to discharge A brief, concise outline of the case assists the court in
the jurors, continue the trial without a jury, and render a gaining an overview of the case for the Crown. In Pro-
verdict. vincial Court and in non-jury trials in Supreme Court,
openings by the Crown are not as common as in jury
trials. This is unfortunate because a Crown opening is an
[§4.05] The Crown’s Case excellent opportunity for the Crown to outline its case
with precision and clarity, and any “heads up” as to the
Crown counsel must be fair and impartial throughout the
key issues or important evidence in the case is extremely
hearing. The Crown’s role is to present to the court rele-
helpful to the trial judge.
vant, admissible evidence in a clear, precise, and firm
manner. While the role of the Crown excludes the notion Openings usually include a short summary of the
of winning or losing (see R. v. Boucher (1954), 110 following:
C.C.C. 263 (S.C.C.)), Crown counsel would not be per- • alleged circumstances;
forming their role properly if the case for the Crown was
• number of witnesses and their anticipated
not presented in a manner designed to convince the jury
evidence;
or judge of the worthiness of the Crown’s case. The
Crown may not express a personal opinion that the ac- • anticipated issues; and
cused is guilty or innocent. • more important exhibits.
No duty is cast on the Crown to call any particular wit-
If there are many exhibits, it is preferable, with the con-
ness, provided that in deciding not to call a witness the
sent of the court and defence, to prepare a list of exhibits
Crown is not acting for an oblique or improper reason.
to present to the court at the outset of the hearing. If
Generally, the Crown may be expected to call all wit-
many documents are involved, they should be properly
nesses who are essential to the unfolding of the narra-
tabbed and indexed.
tive. While the Crown may not be required to call a giv-
en witness, the failure of the Crown to call a witness
may leave a gap in the Crown’s case which will leave [§4.07] Crown’s Opening in Jury Trials
the Crown’s burden of proof undischarged and entitle
the accused to an acquittal (R. v. Cook (1997), 114 After the jury has reassembled, and the accused has been
C.C.C. (3d) 481 (S.C.C.)). There is a duty on the Crown put “in charge of the jury,” the trial continues. The first
to provide particulars to defence counsel of any evidence order of business is the opening by Crown counsel.
that has a bearing on any issue in the trial, and this of
The opening address is a very useful tool for the Crown,
course includes disclosing the existence of witnesses
not simply to present the jury with an overview of the
who may have relevant evidence even though the Crown
case, but also to acquaint the jury with the theory of the
will not be calling them.
Crown and how the evidence fits into that theory.
Every jury trial (and most non-jury trials) follows a set
The prosecutor’s opening generally consists of a brief
pattern that begins with the opening address by the
outline of the case that the Crown intends to prove. This
Crown, the case for the Crown, the opening address for
outline is designed to provide the jury with an overall
the defence, the case for the defence, rebuttal evidence
view of the case so they can see how the various pieces
(if any), and closing addresses by both Crown and de-
of evidence fit together. The prosecutor will usually
fence counsel.
warn the jury that what the prosecutor is saying is not
In Provincial Court, the Crown usually calls the case. In evidence. Unless a voir dire has been held before the
Supreme Court, the clerk will call the case. After both opening, in which contentious evidence has been ruled
counsel have introduced themselves, the accused is ar- admissible, Crown counsel cannot refer to contested
raigned. The charge is read, any relevant elections are evidence (for example, a statement by the accused). If
made and the plea is taken. The Crown or defence may the jury is made aware of evidence that the judge does
ask for an order excluding witnesses. The Crown will not later admit, a mistrial is possible. For this reason, it
then call its first witness.
With multiple accused, the order of names on the in- 2
R. v. Sandham also states that the order on the indictment deter-
dictment determines the order of the questioning of wit- mines the order in which peremptory challenges are exercised.
Peremptory challenges have been eliminated under recent
nesses, the order in which each accused will be called amendments to the Code, but are still available for cases in
upon to call defence, if any, and the order of closing ad- which the accused elected trial by judge and jury prior to Sep-
tember 19, 2019.
Criminal Procedure
 54

is always preferable for the Crown to seek rulings on If, during pre-trial interviews, counsel becomes aware
disputed pieces of evidence before making the opening that a witness wants to change their testimony from that
address. contained in a pre-trial statement or in a preliminary
hearing transcript, counsel should, during direct exami-
Crown counsel must not engage in any type of argument
nation, point out the inconsistency and ask the witness to
in the opening statements. The Crown’s opening state-
give an explanation. By following this procedure, coun-
ment should amount to an impartial summary of the evi-
sel will remove a potent weapon from opposing counsel.
dence that it expects to call.
The accused is shielded by the presumption of innocence
[§4.09] Leading Questions
and the Crown must be most careful to respect and hon-
our that presumption.
A leading question is one phrased to suggest a particular
Inflammatory language, personal opinions as to guilt or answer to the witness. The objection is that through a
innocence, and legal argument masquerading behind a leading question, counsel is influencing testimony. Gen-
series of rhetorical questions have no place in Crown erally, a witness is more favourably disposed to the party
counsel’s opening remarks before a jury. Mistrials have calling them, and psychologically may be open to sug-
been declared in many cases in which these boundaries gestion as to what evidence they will give. The mere fact
have not been observed. that the answer to a question is “yes” or “no” does not
make it a leading question. It is only if the question sug-
After finishing the opening address to the jury, the pros-
gests an answer to the witness that it offends against the
ecutor will then begin to call witnesses.
rule.
In some circumstances a trial judge will permit defence
counsel to address the jury immediately after the Crown 1. When Permitted
opening. This has been permitted in cases that are com-
Subject to certain exceptions, leading questions are
plex and when it is anticipated that the Crown’s evi-
not permitted on direct examination or re-
dence will take a long time to present. It has also been
examination. They are, of course, allowed on cross-
permitted when defence counsel has wanted to com-
examination since the essence of cross-examination
municate to the jury that the accused is making signifi-
is making suggestions to the witness in the hope
cant admissions, which will help the jury to focus upon
that the suggestions will be adopted. The judge has
the remaining contentious issues as between the Crown
discretion to allow leading questions in any situa-
and defence (R. v. Sipes, 2011 BCSC 695; R. v. Johal et
tion where justice demands (R. v. Maynard and
al., [1995] B.C.J. No. 3010 (B.C.S.C.); R. v. Gibson,
McKnight (1959), 126 C.C.C. 46 (B.C.C.A.); and
[1999] B.C.J. No. 1050 (B.C.S.C.)).
Ref. Re R. v. Coffin (1955), 116 C.C.C. 215
(S.C.C.)). Appropriate cases in which leading ques-
[§4.08] Direct Examination tions would be permitted might include witnesses of
limited intellectual capacity, or very young child
The procedure of calling witnesses is designed to elicit witnesses.
the necessary evidence to prove all the essential ele- Using leading questions inappropriately or exces-
ments of the offence charged, and to permit this evi- sively, even when permitted by a judge, may se-
dence to be tested before the court. The role of examina- verely diminish the strength of a witness’s evi-
tion-in-chief (or “direct examination”) is to allow this dence. It does not affect its admissibility (Moor v.
evidence to emerge in a convincing, complete, and or- Moor, [1954] 2 All E.R. 458 (C.A.)). An answer on
derly way. a critical issue elicited by a leading question is enti-
When examining a witness on behalf of the Crown, par- tled to little if any weight (R. v. Williams (1982), 66
ticularly before a jury, it is important to consider how C.C.C. (2d) 234 (Ont. C.A.)).
the evidence is being received. Can the witness be
heard? Is the evidence being followed? Should the wit- 2. Exceptions
ness speed up, slow down, or give more explanation? Leading questions are permitted on direct and re-
Often it is best to ask questions that allow a witness to examination in the following situations:
narrate in their own words; constantly interrupting a wit-
ness tends to throw the witness off balance and fragment (a) for introductory matters such as address, oc-
the evidence. At the end of a trial, the jury will be left cupation, time and place;
with an impression of the witness, including credibility, (b) for matters not in dispute (this saves time and
so direct examination should be conducted so as to allow clarifies the case, and often defence counsel
the witness to make a favourable impression. The jury will advise the Crown before the hearing as to
can be reminded later of specific pieces of evidence, but the contested issues, or the Crown will ask de-
the jury’s impression of the witness is formed while the fence if it might lead in certain areas);
witness is in the box.
Criminal Procedure
 55

(c) for summarizing or repeating evidence about (1999), 118 B.C.A.C. 219; R. v. Fliss, 2002 SCC 16; R.
which the witness has already testified; v. Violette, 2009 BCSC 503).
(d) for counsel to simply direct the witness’s at- After establishing that reference to an earlier statement
tention to a specific area of the evidence; and would refresh that memory, counsel can simply hand the
witness a copy of their statement or preliminary hearing
(e) for stimulating or fixing the witness’s recol-
transcript, refer to the particular place of interest, ask
lection of a name, date or place after an at-
them to read it silently, and then ask if it refreshes their
tempt by counsel to exhaust the witness’s
memory. This technique is usually successful.
memory.
As for notes made at the time of the incident, the Crown
In criminal cases where a witness gives evidence
will lay the foundation to allow the witness to stimulate
inconsistent with a prior written or recorded state-
their current recollection by asking: “Were the notes
ment, and an attempt at refreshing the witness’s
made at the time or shortly after the event?” and “Did
memory has failed, an application to cross-examine
you use your notes to refresh your memory before testi-
the witness on the issue may be made pursuant to
fying today?”
s. 9(2) of the Canada Evidence Act. In such case,
the procedure in R. v. Milgaard (1971), 4 C.C.C. In R. v. Bengert, Robertson (No. 2) (1978), 15 C.R. (3d)
(2d) 206 (Sask. C.A.) must be closely followed. 7 (B.C.S.C.); aff’d (1980), 15 C.R. (3d) 114 at 160
(B.C.C.A.), Berger J. held that a witness who had pre-
In practice, where an honest witness is simply mis-
pared a notebook relating to meetings with the accused,
taken, another option is to refresh the memory of
using his own recollections and notes made by a police
the witness (see §4.10) or ask for a break and show
officer of the information that the witness had passed on
the witness the contradictory part of their statement
to that officer, could use the notebook to refresh his
in order to assist their memory while being mindful
memory during his testimony. It was not the notebook
that the witness’s out-of-court conversation with
that was to be the evidence but the recollection of the
counsel may be the subject of cross-examination.
witness, refreshed by using the notebook.
The witness can then be recalled and asked if their
memory has changed (R. v. Fedan, 2016 BCCA In R. v. Burns, (1979), 51 C.C.C. (2d) 27 (B.C. Co. Ct.),
26). Resort to the procedure in s. 9(2) is usually bet- Anderson J. ruled that the police officer in that case was
ter reserved for hostile witnesses. entitled to give evidence by referring to his notes before
exhausting his memory. After approving Bengert, An-
Where a witness demonstrates more generally that
derson J. stated:
they are “adverse,” an application may be made un-
der s. 9(1) of the Canada Evidence Act to cross- . . . in my view it is only a matter of common sense
examine the witness at large but only on the cir- that the evidence that this witness has to offer be pre-
cumstances of the making of the prior statement. sented in an orderly and sensible manner and that he
Additionally, a witness can be declared “hostile” at be permitted to refer to his notes in giving this evi-
common law and cross-examined generally (R. v. dence to the court. The notes, as I understand it, were
made at or about the dates and times in question. They
Coffin (1956), 114 C.C.C. 1 (S.C.C.); R. v. Figliola, were made by Sergeant Barguent as part of his duties
2011 ONCA 457). In practice, applications to de- as a police officer.
clare a witness hostile or adverse are rare and can
usually be avoided with proper planning and wit- As a result of Stinchcombe, the production of notes made
ness preparation. by Crown witnesses is routine. Police notes should al-
ways be requested, and their content can be a fruitful
[§4.10] Refreshing a Witness’s Memory area for cross-examination.
For a useful discussion of how to cross-examine a wit-
A forgetful witness can be aided by asking a moderately ness on a prior statement, see R. v. Smith (1983), 35 C.R.
leading trigger question which directs the witness’s mind (3d) 86 (B.C.C.A.).
to the subject area counsel is canvassing. Failing that, a
witness may refresh their memory by referring to a prior If a witness has no present memory of certain events and
transcript or statement, or even a picture or recording (R. reference to a prior statement does not refresh the wit-
v. Fliss, 2002 SCC 16). Leave of the court is required ness’s memory, the evidence may still be placed before
before refreshing the memory of a witness on the record. the court if certain conditions are met. If a witness made
a statement at a time when the events were fresh in their
The practice of allowing police officers and civilian mind and the witness can testify that the statement was
witnesses to refresh their memories by looking at notes true at the time it was made, the statement itself may
of the incident made at the time (or at prior statements) become evidence under the doctrine of past-recollection
is common. Typically, the witness will be first asked to recorded (R. v. Fliss, 2002 SCC 16; R. v. Rouse and
exhaust their memory on the subject, though there is McInroy (1977), 36 C.C.C. (2d) 257 (B.C.C.A.)).
some debate about whether this is required (R. v. Carroll
Criminal Procedure
 56

[§4.11] Admissions of Fact practice for the Crown to call a witness who has not
been interviewed in advance, however briefly.
Evidence may be adduced by agreed admissions of fact
In the interests of justice, the prosecutor must permit the
under s. 655 of the Criminal Code.
witness to give the witness’s whole testimony, whether
Section 655 applies to indictable proceedings, and to or not it is favourable to the case for the Crown. In Su-
summary proceedings through s. 795. For preliminary preme Court trials, the Crown should inform the defence
inquiries, the authority is Re Ulrich and R. (1977), 38 well before of any witnesses who are to be called at the
C.C.C. (2d) 1 (Alta S.C.T.D.). trial who were not called at the preliminary hearing. If
this is not done and defence counsel is taken by surprise,
There is no specific provision in the Criminal Code al-
defence counsel will usually be allowed an adjournment
lowing for Crown admissions. However, it has long been
in order to prepare cross-examination of the witness.
the practice that the Crown may, at the request of the
accused, waive technicalities of proof in relation to facts The Crown should consider carefully whether the wit-
known by the Crown, to help bring out all facts tending ness is essential and whether the witness’s evidence is
to strengthen the accused’s defence. required in light of the evidence of other witnesses. If
the witness’s testimony would be superfluous, the wit-
Admissions of fact are made in order to shorten the trial
ness should not be called. The Crown should simplify
and narrow the issues. Accused persons may admit any
the case and sift out the essential from the non-essential
facts alleged against them in order to dispense with the
facts. Good counsel have the ability to do so effectively.
necessity of proving those facts. For example, on a trial
for “failing to appear,” the accused may admit all the Before giving evidence, a witness over the age of 14
allegations in the Information except “without lawful years must swear the oath, or solemnly affirm. A party
excuse.” Those admissions form the case for the Crown, may challenge a witness’ ability to testify. If the witness
and the defence then calls the accused to testify as to the is over the age of 14 years, this procedure is governed by
excuse for failing to appear in court. s. 16 of the Canada Evidence Act. The witness can be
challenged on their ability to understand the nature of an
Although Crown counsel generally should embrace any
oath or a solemn affirmation and whether the person is
opportunity to expedite the progress of the trial through
able to communicate the evidence. Witnesses under the
admissions by the defence, Crown counsel should be
age of 14 years can also be challenged but only for their
aware that experienced defence counsel may offer ad-
ability to understand and respond to questions. This pro-
missions as a means of diminishing the impact of some
cedure is governed by 16.1 of the Canada Evidence Act.
aspects of the Crown’s case. For example, defence coun-
Witnesses under the age of 14 years testify upon promis-
sel may seek to admit that a complainant suffered “bodi-
ing to tell the truth, and cannot be questioned on their
ly harm” rather than have the doctor who treated the
understanding of the oath, solemn affirmation or promis-
complainant describe the actual injuries for the jury.
ing to tell the truth.
Provided that the evidence is not led solely for its in-
flammatory effect, it is quite proper for Crown counsel To help the court follow the evidence, Crown should
to reject offered admissions and insist on leading certain lead their case in a logical order. In cases with many ex-
evidence before the jury. hibits, the Crown will often start by calling the “exhibit
officer” (the officer who seized all of the police exhibits)
If admissions are agreed upon, it is good practice to have
to have the exhibits tendered into evidence (even if only
them reduced to writing before the trial. Reducing ad-
for the purpose of later identification by the witness who
missions to writing is expected in Supreme Court trials.
can actually describe the relevance of the exhibits to the
Written admissions are marked as an exhibit and may
case). For example, a knife might be marked “for identi-
later be examined by the jury.
fication” on the testimony of the exhibit officer that “this
knife was given to me by Constable Smith.”
[§4.12] Witnesses and Exhibits Unless admitted, the Crown will have to lead further ev-
idence to prove the “continuity” of the exhibit, linking it
Crown counsel should have a firm knowledge and a
to the crime or to the accused. For example, Constable
clear picture of the case for the Crown as a whole. This
Smith may testify that he received the knife from the
is impossible without thorough personal interviews with
pathologist who removed it from the deceased in Con-
Crown witnesses because police reports to Crown coun-
stable Smith’s presence. When such continuity evidence
sel often lack detail.
is established, the exhibit formerly marked “for identifi-
The prosecutor must make it clear to the witness why the cation” may be marked as a full exhibit in the trial and
witness is being called and the points the witness will considered as evidence by the jury. If there is no issue as
establish. In Provincial Court, heavy caseloads and last- to continuity, or if the defence wants the exhibit in the
minute movement of cases from one prosecutor to an- trial, continuity can be admitted so that the item can be
other may mean the Crown has insufficient opportunity entered directly as an exhibit in the trial as soon as the
to interview witnesses at length. Still, it is a dangerous exhibit officer produces it.
Criminal Procedure
 57

In a jury trial, rather than marking exhibits for identifica- • Can I elicit new evidence from this witness that fa-
tion, objections to the admissibility of exhibits should be vours my case?
resolved in a voir dire so that exhibits objected to will
• Has the witness hurt my case and if so, how can I
not be seen by the jurors before the issue has been de-
weaken, qualify or destroy the witness’s evidence?
termined.
• Can I discredit the witness’s testimony or use it to
It is also common when witnesses will be referring to
discredit the unfavourable testimony of other
maps, plans, or photographs, either to file these items at
witnesses?
the commencement of the trial by consent, or to call as
the first witnesses those who will prove these items. Counsel should stop once the objective of cross-
examination is attained. To continue is to risk that the
In many cases it is the exhibits, or “real evidence” that
witness will modify evidence and destroy the value of
will convict an accused. In serious cases it may be par-
the objective that was reached.
ticularly useful for both the Crown and defence to exam-
ine the exhibits in advance to ensure there will be no Defence counsel should generally avoid asking questions
unpleasant surprises. to which the answers are unknown because an unex-
pected answer may be devastating to your case. The time
to have asked such questions is at the preliminary in-
[§4.13] Cross-Examination quiry. However, there may be circumstances where
counsel must risk asking such a question if a favourable
When a witness gives evidence, opposing counsel has a
answer is essential to the defence and failure to put such
right to cross-examine. Cross-examination is a powerful
a question would likely lead to conviction.
weapon for testing the accuracy and completeness of the
evidence and the veracity of the witness. It enables the Cross-examination of a witness by Crown Counsel is
trier of fact to weigh or evaluate the evidence in the case. qualitatively different in that the prosecutor will usually
want a defence witness to provide details and elaborate
Before trial, defence counsel should find out from the
upon their testimony so that an assessment can be made
Crown which witnesses will be called and in what order,
as to whether the details make sense and fit with other
so as to anticipate their effect on the case. It is extremely
evidence. While Crown Counsel may use some of the
helpful to have some background on the witnesses, their
same cross-examination methods, fear of an unexpected
involvement in the case, and anything they have to say.
answer is less important for the Crown than fully explor-
Defence counsel has a right to demand such information
ing the logic and credibility of any explanation for the
from the Crown. Defence counsel is also entitled to
accused’s conduct.
interview Crown witnesses so long as they agree to be
interviewed; there is “no property in a witness.” This is The dangers of suggesting to a witness that they have
often the best method of testing a response to a question only recently concocted a story should be kept in mind.
that might otherwise be too dangerous to chance before Cross-examination on recent fabrication of evidence will
the trier of fact. entitle the Crown to lead evidence in re-examination or
from other witnesses of previous consistent statements
Counsel must decide whether to cross-examine each
by that witness to show the evidence has not been re-
witness. Protracted and irrelevant cross-examination is
cently fabricated (R. v. Ellard, 2009 SCC 27).
bad technique and a waste of time. Cross-examination
can be harmful if a witness merely repeats unfavourable Cross-examination is often the whole of the case for the
evidence given on direct. Cross-examination will proba- defence. Counsel is entitled to ask leading questions on
bly not be able to shake an essentially true story. cross-examination, a great advantage in eliciting fresh
evidence that puts a new light on direct examination.
When you are on firm ground with your case, ask only a
The result is to build up one’s own case and weaken that
few questions or none at all. Further questions may elicit
of the other side.
unexpected explanations that may sink your case. Never
ask a really critical question—the answer to which may Note the following special rules:
destroy your case—unless you know the answer or the
• If you intend to use testimony from your own wit-
answer will not harm your case no matter what it is. Be
ness to directly contradict a Crown witness or im-
cautious and know when to sit down. Stopping is one of
peach that witness’s credibility, you must put your
the most effective tools. For example, the witness may
version to the Crown witness (R. v. Dyck, [1970] 2
answer a question and be expecting to say more with a
C.C.C. 283 (B.C.C.A.)).
qualification or explanation, when counsel either chang-
es the topic of cross-examination or does not question • If you do not put the contrary version to the
further. witness, the trial judge is entitled (but not obliged)
to weigh the failure to cross-examine against the
Counsel must know the objective of their cross-
accused (R. v. MacKinnon (1992), 72 C.C.C. (3d)
examination. Determine first what facts are in issue and
113 (B.C.C.A.)).
ask yourself the following questions:
Criminal Procedure
 58

Rarely will counsel be able to completely destroy ad- • “insinuation”—the building up of a different ver-
verse evidence. Witnesses will almost never admit to sion of the evidence in chief by bringing out new
lying or colouring their testimony. The breakdown and facts and possibilities.
confession while in the witness box is something seen
only on television. Counsel, with preparation and experience, will develop
their own style of cross-examination tailored to the con-
Sometimes counsel is fortunate and has an opportunity text.
to destroy a verbose witness who has offered an unlikely
story on direct. The witness can be pressed for more and
more detail. Silence on the part of counsel can be a good [§4.14] Limits of Cross-Examination
technique, driving the witness further and further into
defensive explanations. Although the scope of cross-examination is much wider
than that of direct examination, it is not an unfettered
Another method of attack is to draw statements from the right.
witness that are inconsistent with the rest of their story
or that can be disproved by other evidence. The cross-examiner may not intentionally insult or abuse
a witness. In R. v. Ma, Ho and Lai (1978), 6 C.R. (3d)
Pre-trial statements made by a witness that conflict with 325, the British Columbia Court of Appeal adopted the
that witness’s testimony at trial may be used to impeach following guidelines from R. v. McLaughlin (1974), 15
the credibility of the witness. Moreover, the prior incon- C.C.C. (2d) 562 at 572 (Ont. C.A.):
sistent statement may be admitted as evidence of the
truth of its contents if, during a voir dire, the trial judge I acknowledge that the trial Judge has the right and
is satisfied that the statement is necessary and reliable. duty to restrict cross-examination in all cases where the
evidence sought to be obtained is irrelevant, repetitive
For example, a prior inconsistent statement may be ad- or in any other manner incompatible with a fair and
missible for the truth of its contents if it was made under proper trial. [The Judge] must be vigilant in protecting
oath, a videotaped record of the statement exists, and the a witness against vexatious and abusive questioning…
opposing party has a full opportunity to cross-examine
the witness at trial (R. v. B.(K.G.), [1993] 1 S.C.R. 740). See also Brownell v. Brownell (1909), 42 S.C.R. 368
(relevancy); R. v. Prince (1945), 85 C.C.C. 97
More often, counsel will try to weaken evidence so that (B.C.C.A.) (harassment); and R. v. Daly (1992), 16
the judge cannot attach much weight to it. This can be W.C.B. (2d) 622 (Ont. C.A.) (sarcasm).
effective when the evidence is circumstantial. Test the
witness’s story against items of real evidence, such as The answer to cross-examination on a collateral matter
exhibits, and against the evidence of other witnesses (that is, a matter that is not relevant to a fact in issue) is
who are reliable. Anticipate the answers to your ques- final and cannot be contradicted by other witnesses; you
tions as much as possible. The witness may be delicately are stuck with the answer given by the witness (R. v.
“lured” into saying something that can be disproved Shewfelt (1972), 6 C.C.C. (2d) 304 (B.C.C.A.)). Cross-
through other witnesses, or into saying something illogi- examination on matters related to the credibility of the
cal. If so, pursue the matter. witness is permitted, but will be considered collateral if
not relevant to a matter in issue at the trial (R. v. Jackson
Cross-examine as to powers of observation, intelligence, and Woods (1974), 20 C.C.C. (2d) 113 (Ont. H.C.) and
memory, and accuracy. Impeach the credibility of the Dyck). Where the cross-examination on credibility is
witness by showing, for example, bias, previous convic- directly relevant to a trial issue, answers given by the
tions or prior contradictory statements. Watch witnesses witness are not final and can be contradicted by other
carefully and listen to their voices, adapting your style to evidence (R. v. Cassibo (1982), 70 C.C.C. (2d) 498 (Ont.
their personality. It is good practice to ask Crown coun- C.A.); R. v. Jackson, [1985] B.C.D. Crim. Conv. 5380-
sel for copies of criminal records of those civilian wit- 01 (C.A.)).
nesses you hope to discredit. It may also be possible to
obtain either the cooperation of the Crown or a court It is improper to ask one witness to comment on the ve-
order for the production of police reports behind those racity of another witness, for example, by asking a wit-
convictions. This information can greatly assist defence ness to agree that another witness must be lying because
counsel in cross-examination. of inconsistent testimony (R. v. Brown and Murphy
(1982), 1 C.C.C. (3d) 107 (Alta. C.A.), aff’d (1985), 21
In his book, The Technique of Advocacy, John Munkman C.C.C. (3d) 477 (S.C.C.); R. v. Ellard, 2003 BCCA 38).
describes several techniques of cross-examination:
A witness may be cross-examined on the witness’s own
• “confrontation”—confronting the witness with criminal record because the record is relevant in as-
damaging facts which the witness cannot deny and sessing credibility. A non-accused witness who has a
which are inconsistent with the witness’s evidence; record may also be cross-examined regarding details of
• “probing”—inquiring thoroughly into details of the the offences for which they were convicted. An accused
story to discover flaws; and person as a witness may be cross-examined on their own

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criminal record pursuant to s. 12 of the Canada Evidence 1. The Rule

Act, but may not be cross-examined on the details of the
For such a motion to succeed there must be no evi-
offences (R. v. Menard (1996), 108 C.C.C. (3d) 424
dence on which a jury, properly instructed and act-
(Ont. C.A.), aff’d (1998), 125 C.C.C. (3d) 416 (S.C.C.);
ing reasonably, could have convicted the accused.
and R. v. Bricker (1994), 90 C.C.C. (3d) 268
This is a question of law. The issue is the existence
(Ont. C.A.)).
or non-existence of evidence on a crucial element.
The judge is not entitled to weigh or evaluate the
[§4.15] Re-Examination evidence and must assume that a jury would have
accepted all the evidence as tendered by the
The right to re-examine occurs when new matters have Crown’s witnesses. Neither is the judge entitled at
arisen on cross-examination. The purpose of re- this point to assess the credibility of witnesses nor
examination is to qualify or explain fresh evidence or to choose which parts of their evidence to accept or
variations on evidence elicited on cross-examination. reject (R. v. Morabito (1949), 93 C.C.C. 251
New topics cannot be introduced, since counsel should (S.C.C.) and U.S.A. v. Sheppard).
have elicited any relevant evidence on direct examina-
If a no-evidence motion is successful, the trial judge
tion. Since counsel is examining their own witness,
will acquit (when sitting without a jury) or, in a jury
counsel cannot ask leading questions; this is a very
trial, withdraw the case from the jury and enter an
common mistake and opposing counsel should be alert
acquittal (R. v. Rowbotham (1994), 90 C.C.C. (3d)
for leading questions in re-examination.
449).
Frequently, cross-examination will bring out an aspect of
direct evidence that a clever cross-examiner will leave 2. Circumstantial Evidence
unfinished. The re-examiner is prevented from touching
At trial, the jury will be instructed that before bas-
on it when the cross-examiner says “it arose on direct
ing a guilty verdict on circumstantial evidence, they
and you should have dealt with it there.”
must be satisfied beyond a reasonable doubt that the
Counsel may not discuss the case with their witness be- guilt of the accused is the only reasonable inference
tween cross-examination and re-examination unless op- to be drawn from the proven facts. As this is a ques-
posing counsel consents or the court grants leave. Wit- tion of weight to be attached to the evidence, a mat-
ness interviews may be permitted to clear up honest mis- ter solely within the purview of the trier of fact, a
takes, ambiguities, or to clarify the points left obscure by no-evidence motion must of necessity fail when it is
cross-examination. While there are some situations in open to the trier of fact to infer guilt from a body of
which communication may not be appropriate, the court circumstantial evidence (R. v. Cooper (1997), 34
will readily grant leave in most cases. See R. v. Mont- C.C.C. (2d) 18 (S.C.C.); R. v. Monteleone (1982),
gomery (1998), 126 C.C.C. (3d) 251 (B.C.S.C.); “When 67 C.C.C. (2d) 489 (Ont. C.A.)).
May Counsel Talk To A Witness During Trial? – The
Unwritten Rules” by Brian McLaughlin in (1989) 47 The
[§4.17] Insufficient Evidence Motion
Advocate 237 and “Speaking to Your Witness” in (1990)
48 The Advocate 565.
An insufficient evidence motion is an argument at the
end of the Crown’s case, on the evidence as a whole.
[§4.16] No-Evidence Motion This time, the judge does weigh and evaluate the
evidence and assess the credibility of the witnesses. The
At the close of the Crown’s case, the defence has the judge draws proper inferences from proven facts and
option to make a motion of no evidence. The basis of rules as to whether the Crown has proved its case
such a motion is that the Crown has led no evidence to beyond a reasonable doubt. It is defence counsel’s final
prove one or more essential elements of the offence. If a argument to the judge, since the submission is not made
jury is sitting, the motion is called a motion for a until defence counsel has unequivocally elected to call
directed verdict. A successful no-evidence or directed no evidence for the defence. The defence can first make
verdict motion will end with an order of acquittal. If a no-evidence motion and, if this fails, elect to call no
unsuccessful, the trial continues, and the accused is put evidence in the defence’s own case and pursue an
to their election on the calling of evidence. argument of insufficient evidence. The most important
factor is that before electing to bring an insufficient
The defence can make a no-evidence motion, yet reserve
evidence motion, the defence has first elected to call no
its right to call evidence if the motion fails. The defence
evidence; if the motion fails, there will be a guilty
must make it clear that it is reserving this right to avoid
verdict, and that is the end of the matter.
the judge ruling not just on the motion, but on the whole
case (R. v. Kavanagh (1972), 8 C.C.C. (2d) 296
(Ont. C.A.)).

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[§4.18] Defence Case journment at the close of the Crown’s case. Analyze
the evidence presented so far to see if the Crown
When the defence elects to call evidence, counsel is enti- has made out its case. This is a critical and difficult
tled to make an opening statement to the court (see decision in both complex and simple cases.
s. 651(2)). As in the case of Crown openings, the de-
fence opening is a unique opportunity to outline the case 2. Presenting the Evidence
for the defence. The same general considerations apply
Again, counsel should try to present the evidence as
as in the Crown’s opening. Defence counsel should only
effectively and persuasively as possible. This means
open in detail if counsel is confident that the defence
preparing it. Have a theory to which all the ques-
witnesses, including the accused, will deliver what is
tions in direct and cross-examination will be di-
promised. In a jury trial, any issue regarding the admis-
rected. Get the story from the witnesses and prepare
sibility of evidence should be addressed before the trial
them as to dates, times, and the order in which cer-
judge and in the absence of the jury, before the evidence
tain areas will be dealt with. Instruct them to listen
is referred to in the opening address. It is both embar-
to the questions and to answer briefly and simply.
rassing and potentially disastrous for the client if evi-
Ask them to speak loudly.
dence is referred to in an opening address but is not led
before the jury because of a valid objection raised by the Try to present the evidence in a logical order (often
Crown, or if heard, becomes subject to a special instruc- chronological) and make every effort to find out be-
tion from the trial judge that the evidence is not to be fore trial the answers the witnesses will give to any
considered in deliberations. question asked either in direct or cross-examination.
This may prevent the disastrous result of having the
In Canada, there is no rule as to the order in which wit-
client convicted through the client’s own mouth or
nesses for the defence can be called. The accused or de-
those of their own witnesses.
fence counsel is completely free to decide whether the
accused will testify and if so, in what order or sequence
the accused will be called in relation to other defence [§4.19] Cross-Examination of the Accused
witnesses. However, if a witness (including an accused)
is in court while other witnesses testify, the trier of fact The same basic considerations apply as in the Crown’s
can give that evidence less weight given that it might case. Counsel acting for a co-accused must cross-
have been tainted by exposure to other testimony. examine a defence witness before the prosecutor cross-
examines (R. v. Woods and May (1853), 6 Cox C.C. 224
1. Whether to Call Evidence (C.C.)).

The defence must determine whether to call the ac- 1. Scope of Cross-Examination
cused or other witnesses at all. Some factors to con-
sider include the existence of a criminal record Accused persons cannot be compelled to testify, but
(which may be put to the accused on cross- if they give evidence, they must bear the conse-
examination by the Crown or on direct by defence quences.
counsel), and the impression the accused is likely to In the United States, a witness may decline to an-
have on the court (that is, does the accused appear swer a question on the grounds that it may incrimi-
to be a credible witness with a valid defence, or is nate them. In Canada, where we have a “use im-
the accused inarticulate or unimpressive). munity model,” an accused must answer incriminat-
The accused may be convicted on a prima facie ing questions but restrictions are imposed on use of
case and runs this risk if no evidence is called to re- such testimony in future proceedings. An accused
but it. However, the point at which the accused witness may invoke the protection of s. 5 of the
should explain “can only be the point where the Canada Evidence Act, in which case, the answer
prosecution’s evidence, standing alone, is such that given shall not be “used or admissible in evidence
it would support a conclusion of guilt beyond a rea- against him” in another proceeding. The accused
sonable doubt” (R. v. Johnson (1993), 79 C.C.C. witness may rely also on s. 13 of the Charter of
(3d) 42 (Ont. C.A.)). Rights and Freedoms. The Charter protection is
broader and largely makes the s. 5 Canada Evi-
Often, defence counsel will not know until the close dence Act protection redundant.
of the Crown’s case whether to call evidence. De-
fence counsel may be able to rely on weaknesses in While the witness must claim the protection of s. 5,
the Crown’s case and its failure to prove essential s. 13 will automatically protect the witness and pre-
elements on its own direct examination. Defence vent the use of previous testimony for the purpose
counsel should not call a defence if they do not of incrimination at any subsequent proceeding.
need to; otherwise counsel takes the risk of damag-
ing the case for the defence. Request a brief ad-

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Section 13 reads as follows: evant only to the credibility of the witness (Canada
A witness who testifies in any proceedings has the
Evidence Act, s. 12(1) and R. v. Burgar, 2010
right not to have any incriminating evidence so giv- ABCA 318). Proof of previous convictions by ad-
en used to incriminate that witness in any other mission of the accused or otherwise is not proof that
proceedings, except in a prosecution for perjury or the accused committed the offence for which they
for the giving of contradictory evidence. are being tried.
While the Crown cannot simply produce a tran- Section 12 allows admission only of prior convic-
script of the evidence of an accused from one trial tions and not prior charges (R. v. Koufis (1941), 76
as part of its evidence in chief to prove criminality C.C.C. 161 (S.C.C.); R. v. McLaughlan (1974), 20
at a second trial, the Crown may put to an accused C.C.C. (2d) 59 (Ont. C.A.)).
their prior inconsistent statements to impeach credi- The accused may also be examined in direct regard-
bility. If this is done, the statement is not tendered ing their prior criminal record and this does not
as evidence to establish the proof of its contents, but thereby put their character in issue if done for tacti-
is tendered for the purpose of revealing a contradic- cal reasons (if it is admitted). But if the criminal
tion between what the accused is saying now and record is denied, this opens up character under
what the accused said on a previous occasion. s. 666 (Morris).
However, cross-examination on prior inconsistent
testimony aimed solely at incriminating the accused In addition to having specific convictions put to
will not be permitted (R. v. Nedelcu, 2012 SCC 59). them, the accused may be asked simply: Do you
have a criminal record? (R. v. Clark (1977), 41
The accused can be cross-examined as to prior con- C.C.C. (2d) 561 (B.C.C.A.)). Such cross-
tradictory statements in the same way as other wit- examination also permits questions concerning a
nesses. If the Crown seeks to cross-examine an ac- juvenile “record”: Morris. Discharges are not con-
cused on a statement made to a person in authority, victions that can be put to the accused (R. v. Danson
that statement must first have been subject to a voir (1982), 66 C.C.C. (2d) 369 (Ont. C.A.)).
dire and ruled voluntary and admissible (see Chap-
ter 5, §5.04—Statements of the Accused). However, Crown counsel will sometimes agree not to put
if there is more than one accused, the trial judge has highly prejudicial past convictions to an accused on
broad discretion to permit cross-examination of one cross-examination.
accused by counsel for a co-accused on statements The trial judge has a discretion to prevent cross-
made to the police, without the necessity of a voir examination on criminal records (R. v. Corbett
dire and without showing the statement to be volun- (1988), 41 C.C.C. (3d) 385 (S.C.C.)). Since Cor-
tary (R. v. Ma, Ho and Lai). bett, the courts have been somewhat inconsistent in
Generally, the Crown cannot adduce evidence their exercise of this discretion. For many years fol-
tending to show that the accused has been guilty of lowing Corbett, trial judges were generally pre-
criminal acts other than those covered by the pared to prohibit Crown counsel from cross-
Information in order to imply that the accused is a examining on offences which, unlike theft and fraud
person likely to have committed the offence they and the like, lack a “dishonesty” component. For
are being tried for, or is not credible (R. v. Davison, example, the trial court might prohibit cross-
De Rosie and MacArthur (1974), 20 C.C.C. (2d) examination regarding prior convictions for offenc-
424 at 444 (Ont. C.A.), adopted in R. v. Morris es involving violence, particularly where the in-
(1978), 6 C.R. (3d) 36 at 54-55 (S.C.C.)). dictment before the court alleged similar conduct.
Our courts have moved away from that approach,
There may be cases where Crown counsel can argue ruling more and more often that cross-examination
that conduct outside the four corners of the on any sort of prior criminal history is fair game.
indictment is relevant and probative under the The BC Court of Appeal endorsed this approach in
“similar fact” rule of evidence. A voir dire is R. v. Fengstad, 1989 CanLII 5168 (B.C.C.A.).
required to determine what, if any, evidence outside
the offence charged may be lead in chief by the If permitted, and if not already part of the accused’s
Crown, which in turn determines the availability of evidence in chief, the Crown in cross-examination
that evidence for cross-examination of the accused will put the accused’s criminal record to the ac-
(if the accused elects to testify) (R. v. B.(C.R.) cused. A jury will be instructed that they may con-
(1990), 55 C.C.C. (3d) 1 (S.C.C.)). sider the criminal record of the accused solely and
exclusively for the purpose of determining the de-
2. Previous Convictions gree of credibility which might be attached to the
accused evidence. They will also be instructed that
Any witness, including the accused, may be cross- a criminal record is not evidence that the accused is
examined as to previous convictions, but this is rel- more likely to have committed criminal acts in gen-

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 62

eral, or the particular offences in the indictment be- case. The Crown or the plaintiff must produce and
fore the court (R. v. Leforte (1961), 130 C.C.C. 318 enter in its own case all the clearly relevant evi-
(B.C.C.A.); R. v. Williams and Irvine, [1969] 3 dence it has, or that it intends to rely upon, to es-
C.C.C. 108 (Ont. C.A.)). tablish its case with respect to all the issues raised
in the pleadings, in a criminal case, the indictment
When providing proof of previous convictions, evi- and any particulars … This rule prevents unfair
dence of the date, location, offence and sentence surprise, prejudice and confusion which could re-
imposed are the only admissible aspects of the sult if the Crown or the plaintiff were allowed to
criminal record of the accused. When the accused is split its case, that is, to put in part of its evi-
being cross-examined, the circumstances of past of- dence—as much as it deemed necessary at the
fences are not admissible (R. v. Bricker (1994), 90 outset—then to close the case and after the de-
fence is complete to add further evidence to bol-
C.C.C. (3d) 268 (Ont. C.A.)). ster the position originally advanced. The under-
lying reason for this rule is that the defendant or
[§4.20] Defence Re-Examination the accused is entitled at the close of the Crown’s
case to have before it the full case for the Crown
The considerations are the same as those in re- so that it is known from the outset what must be
met in response.
examination by the Crown (see §4.15). The defence will
try to weaken and qualify any damaging new matters The plaintiff or the Crown may be allowed to call
that have arisen on cross-examination by the Crown. evidence in rebuttal after completion of the de-
fence case, where the defence has raised some
new matter or defence which the Crown has had
[§4.21] Rebuttal or Evidence in Reply no opportunity to deal with and which the Crown
or the plaintiff could not reasonably have antici-
Rebuttal evidence is evidence tendered by the Crown. It pated. But rebuttal will not be permitted regarding
happens after the close of the case for the defence and it matters that merely confirm or reinforce earlier
is used to rebut or contradict evidence adduced by the evidence adduced in the Crown’s case, which
could have been brought before the defence was
defence. It should not be confused with re-opening the made. It will be permitted only when it is neces-
Crown’s case, which may be permitted after the Crown’s sary to insure that at the end of the day each party
case is closed. See e.g. R. v. Robillard (1978), 41 C.C.C. will have had an equal opportunity to hear and re-
(2d) 1 (S.C.C.); R. v. M.P.B. (1994), 89 C.C.C. (3d) 289 spond to the full submissions of the other.
(S.C.C.) and R. v. G. (S.G.) (1997), 116 C.C.C. (3d) 193
(S.C.C.), on the latitude given to the Crown to re-open Also see the Supreme Court of Canada’s treatment
its case to lead evidence that was omitted due to of this rule in R. v. Aalders (1993), 82 C.C.C. (3d)
inadvertence, or even newly-discovered evidence that is 215, in which Crown counsel was entitled to lead
material and probative. rebuttal evidence relevant to a robbery, which was
itself determined to be an integral and essential
The rebuttal cannot merely confirm or restate the
aspect of a case of planned and pre-meditated first
Crown’s case, but is strictly confined to rebutting or an-
degree murder.
swering the evidence adduced in the case for the defence
(R. v. John (1985), 23 C.C.C. (3d) 326 (S.C.C.)). Although rebuttal on collateral matters is generally
not allowed, keep statutory provisions allowing re-
1. When Rebuttal is Proper buttal in mind. For example, s. 11 of the Canada
Evidence Act allows the proof of a previous incon-
The decision to let the Crown call rebuttal evidence
sistent statement relative to the subject matter of the
is within the discretion of the judge. The Crown
case where such a statement is not admitted in
will apply to call such evidence when, for example,
cross-examination, and s. 12 of the Act allows the
the accused puts forward a defence that takes the
proof of convictions that are denied by the witness.
Crown by surprise. The Crown may foresee a cer-
tain defence without being able to assume it will in
2. Examples of Rebuttal
fact emerge (R. v. Coombs (1977), 35 C.C.C. (2d)
85 (B.C.C.A.)). The general rule is that rebuttal ev- Examples of subject matter for rebuttal include:
idence should not be allowed when it was both in
• self-defence or provocation—the Crown cannot
the possession of the Crown and relevant to the
assume the accused will be called to give such
Crown’s case in chief. What constitutes proper
evidence;
Crown rebuttal was authoritatively reviewed by the
Supreme Court of Canada in R. v. Krause (1986), • alibi—note that the Crown may only attack the
29 C.C.C. (3d) 385 at 390: material parts of the alibi (R. v. Latour (1976),
33 C.C.C. (2d) 377 (S.C.C.));
The general rule is that the Crown, or in civil mat-
ters the plaintiff, will not be allowed to split its • drunkenness or mental disorder;

Criminal Procedure
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• character of the accused put in issue by the ac- in the Crown’s theory of liability against an accused
cused—the Crown can rebut evidence of good which could not fairly have been anticipated by the
character by evidence of bad character (R. v. defence; or a situation in which the Crown has
McFadden (1981), 28 C.R. (3d) 33 (B.C.C.A.)); simply misled the defence as to its theory of
and liability.
• defence evidence led to impeach the credibility
of a Crown witness. The Crown may call rebut- 2. Content
tal to rehabilitate the witness (Toohey v. Metro- Counsel should plan an address, make notes during
politan Police Commissioner (1964), 49 Cr. the trial, and think about a logical order for
App. R. 148 (H.L.)). presentation.
Counsel may urge the judge to find the existence of
[§4.22] Surrebuttal disputed facts if they are capable of rational infer-
ence from the existence of proven facts and not
If the Crown’s rebuttal evidence is new evidence, the merely speculation. All references to the evidence
defence may have the opportunity to call surrebuttal evi- must be absolutely accurate.
dence. For example, the Crown may introduce evidence
denying the position advanced by the defence or estab- Counsel should be prepared to argue the charges on
lishing an alternate explanation for the accused’s con- the Information. On included offences counsel
duct. If the defence did not have the opportunity to deal should be prepared to argue also that some of the
with that evidence in its own case, then the defence may charges overlap and that conviction on all counts is
be entitled to call surrebuttal evidence. inappropriate. For the general principles, see R. v.
Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.); R.
The right of an accused to fully answer the case against v. Rinnie (1970), 3 C.C.C. 218 (Alta. S.C. App.
them also applies to rebuttal evidence, so the rules re- Div.); R. v. Fergusson (1961), 132 C.C.C. 112
garding the permissible scope of surrebuttal will be ap- (S.C.C.); R. v. Manuel (1960), 128 C.C.C. 383
plied liberally in favour of the accused (see R. v. Ewert (B.C.C.A.); and R. v. Luckett (1980), 50 C.C.C. (2d)
(1989), 52 C.C.C. (3d) 280 (C.A.)). 489 (S.C.C.).
Calling rebuttal and surrebuttal evidence is rare.
3. Crown
[§4.23] Addresses of Counsel The Crown will stress the evidence that establishes
the proof of each essential element of its case be-
1. Order yond a reasonable doubt, and then deal with any de-
fence raised or anticipated. The Crown must be fair
The accused or the accused’s counsel is entitled to and, while firmly highlighting probative evidence,
present argument to the judge last if the defence has not press for conviction unless this is justified on
called no witnesses to give evidence (ss. 650(3) and the evidence.
651(3)). However, if the defence has called wit-
nesses, or if any witnesses are called on behalf of 4. Defence
one of the accused in a joint trial, then the defence
presents argument first (s. 651(3) and (4)). Defence counsel will try to emphasize weaknesses
in the case for the Crown and stress the evidence for
The constitutional validity of those sections in the the defence.
Criminal Code that mandate the order of addresses
where defence evidence is called has been The defence should first explain the theory of the
challenged. The Supreme Court of Canada defence simply, and then expand the theory using a
determined in R. v. Rose, [1998] 3 S.C.R. 262, that thorough analysis of the evidence or absence of ev-
these sections of the Criminal Code did not infringe idence which defence counsel argues should leave
the Charter. The court also recognized that “in the the jury in a state of reasonable doubt.
clearest of cases” (that is, almost never), there may Defence counsel should point out inconsistencies
be a limited right of reply following Crown and contradictions in the evidence and attack the
counsel’s address to the jury. The court held that the credibility of the witnesses (where reasonable to do
right of reply would arise when some part of the so). Defence counsel should examine each item of
Crown’s address could not adequately be dealt with adverse evidence to see if counsel can draw some
in the judge’s charge, and to deny a reply would favourable argument from it. Counsel should try to
impact upon the defendant’s ability to make full explain adverse facts and answer arguments that
answer and defence or prejudice the defendant’s counsel anticipates from the other side. If there is
right to a fair trial. The court offered as examples: a not much in the way of affirmative evidence as a
Crown address which advanced a significant change defence, base defence argument upon what the
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 64

Crown has failed to prove. At a trial before a judge of points that the judge will almost inevitably deal with
alone, defence counsel should have copies of any in the charge to the jury:
authorities to be cited or relied upon for the judge
• facts for the jury alone to decide upon;
and the Crown. Defence counsel should formulate
the general principles of law that the defence wants • law for the judge alone to set down;
the court to accept and offer the cases in support. • presumption of innocence;
Be selective, highlighting the main points, and • onus of proof on Crown;
speaking simply yet with conviction. • proof beyond a reasonable doubt;
• what the evidence consists of;
[§4.24] Judge’s Charge on a Jury Trial • what credibility means;
Once both counsel have completed their addresses, the • accept all or part of a witness’s evidence;
judge will charge the jury. When charging the jury, the • the law with respect to the offence;
judge will probably recollect relevant facts. The judge
• verdicts open to the jury;
will also deal with the theory of the Crown and with the
theory of the defence. The judge will then proceed to • verdicts must be unanimous;
deal with the law as it relates to the charge before the • theory of the Crown;
jury.
• theory of the defence;
It is important to thoroughly prepare for the charge to the • included offences; and
jury ahead of time. It has become increasingly common
for trial judges to give counsel a draft copy of the charge • particular defences in issue.
before the judge delivers it to the jury. This is counsel’s This list is not exhaustive. Counsel should create a simi-
opportunity to make suggestions regarding the trial lar list and check off the various points as the judge
judge’s treatment of both the evidence and the law. Even deals with them in the charge.
if the judge is not using a written draft charge, it is
common for the judge to seek the input and submissions CLE’s loose-leaf manual Canadian Criminal Jury In-
from counsel on particular issues before the charge is structions (CRIMJI), by Professor G.A. Ferguson, Mad-
given to the jury. am Justice Elizabeth Bennett, and Mr. Justice Michael
Dambrot, is the preferred resource in British Columbia.
Counsel should be particularly careful to follow the It includes standard jury charges and annotations. The
judge’s charge so that they can make the judge aware of Canadian Judicial Council’s model jury instructions
any errors or omissions concerning the law that the (available online) and Watt’s Manual of Criminal Jury
judge has set out to the jury. Once the judge completes Instructions are also useful.
the charge, the jury will be excused and the judge will
then invite counsel to comment upon the charge. At this During the deliberations of the jury, you may find that
time, counsel should advise the judge of any errors in the the jury requests further instructions from the judge. The
charge that counsel feels may have occurred. The judge request may be about a point of law or it may be in the
may invite the jury back and correct the charge, or the nature of a request to clarify some of the evidence. On
judge may feel that this is not appropriate, in which case occasion you may find that a portion of a person’s evi-
the jury will be allowed to continue with its delibera- dence is read to the jury by the court reporter. If there is
tions. The judge’s charge to the jury has been described some dispute as to the propriety of the jury receiving
as also being the judge’s address to the Court of Appeal. certain information or instruction, counsel may be called
It is important to remember that there are several types upon to argue the correct course of action to be followed
of errors that should be brought to the judge’s attention by the judge. For this reason, it is advisable to remain
for correction, including the following: clear-headed during the occasionally lengthy jury delib-
erations.
• errors that are unfavourable to the accused and
that, when corrected, will make acquittal more
likely (failure to seek a correction may weigh
against the accused on an appeal); and
• errors that are favourable to the accused and that, if
uncorrected, may allow a Crown appeal (whether
the defence should raise such errors will depend on
their nature).
The nature of the jury charge differs with the circum-
stances of each individual case, but the following is a list

Criminal Procedure
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Chapter 5 First, if you believe the evidence of the accused,
obviously you must acquit.
Secondly, if you do not believe the testimony of
the accused but you are left in reasonable doubt
Evidence1 by it, you must acquit.
Thirdly, even if you are not left in doubt by the
evidence of the accused, you must ask yourself
Detailed knowledge of the law of evidence is essential in whether, on the basis of the evidence which you
criminal law. This chapter provides an overview. For do accept, you are convinced beyond a reasonable
further discussion of topics covered by this chapter, refer doubt by that evidence of the guilt of the accused.
to the texts listed in Chapter 1.
The British Columbia Court of Appeal supplement-
ed this model instruction in Regina v. C.W.H.
[§5.01] Burden and Standard of Proof (1991), 68 C.C.C. (3d) 146 (B.C.C.A.):
1. General Rule If, after a careful consideration of all of the evi-
dence, you are unable to decide whom to believe,
The Crown has the primary or “legal” burden of you must acquit.
proof throughout the trial and must prove all essen-
tial elements of the offence, including the actus reus In R. v. J.H.S., 2008 SCC 30, the Supreme Court re-
and the mens rea of the offence, beyond a reasona- interpreted the test from R. v. W.(D.), holding that
ble doubt. The accused is presumed innocent until the three steps are not a “magic incantation” requir-
the Crown proves the accused’s guilt to the standard ing specific wording. However, a judge or jury must
of “proof beyond a reasonable doubt” (Woolming- understand these key principles:
ton v. D.P.P., [1935] A.C. 462; Canadian Charter • an accused’s lack of credibility does not prove
of Rights and Freedoms, s. 11(d)). A “reasonable the accused’s guilt;
doubt” is a doubt arising from the evidence or the
lack of evidence, and is closer to a certainty than to • one may accept some of an accused’s testimony
proof on the balance of probabilities (R. v. Lifchus, while disbelieving other parts;
[1997] 3 S.C.R 320; R. v. Starr, [2000] 2 S.C.R. • one must consider all of the evidence in decid-
144). ing whether there is any reasonable doubt; and
In deciding whether the Crown has proven guilt be- • any reasonable doubt must be resolved in fa-
yond a reasonable doubt, a trier of fact must look at vour of the accused.
the evidence as a whole, rather than deciding
whether each individual piece of evidence has been Although the Crown always bears the burden of
proven beyond a reasonable doubt. The standard of proof beyond a reasonable doubt, when the accused
proof beyond a reasonable doubt is not to be ap- advances a so-called “affirmative” defence, such as
plied to individual pieces of evidence (R. v. Morin, the defence of self-defence, provocation or intoxi-
[1988] 2 S.C.R. 345). Since the Crown bears the cation, the accused bears an “evidentiary” burden of
burden of proof beyond a reasonable doubt, a trier pointing to some evidence that has been adduced at
of fact need not accept a given piece of evidence as trial, either in the Crown’s case in chief or in the de-
true in order for that evidence to raise a reasonable fence case, that gives an air of reality to that partic-
doubt (R. v. Miller (1991), 68 C.C.C. (3d) 517 (Ont. ular defence. If there is no air of reality to the de-
C.A.). In a case where the accused testifies and de- fence, the accused cannot rely on it. If the evidence
nies their guilt, this principle means that the trier of supports an air of reality to the defence, the burden
fact need not accept the accused’s (exculpatory) tes- shifts back to the Crown to disprove that defence on
timony to acquit the accused. the standard of proof beyond a reasonable doubt (R.
v. Cinous; 2002 SCC 29; R. v. Fontaine, 2004
The Supreme Court of Canada in R. v. W.(D.) SCC 27).
(1991), 63 C.C.C. (3d) 397 held that, when an
accused testifies, a trial judge should instruct a jury 2. Statutory Presumptions That Shift the Burden
(or the judge, in a judge-alone trial), as follows: of Proof
The Criminal Code includes certain statutory pre-
1
sumptions that shift the burden of proving or dis-
Micah Rankin, Crown Counsel, Prosecution Support Unit,
proving a particular fact from the Crown to the ac-
kindly updated this chapter in February 2021. Previously revised
by Joseph J. Blazina (2016–2019); Marian K. Brown (2004– cused. Some such presumptions only require the ac-
2010); S. David Frankel (1996–2001); Geoffrey Barrow (1995); cused to point to “some” evidence, either in the
and Michael Klein (1994). Crown case or adduced by the accused, in order to
raise a reasonable doubt as to the existence (or ab-

Criminal Procedure
 66
sence) of the presumed fact. These presumptions It should be noted that the recent amendments to
are said to shift an “evidentiary” or “secondary” the Criminal Code abolished several of the remain-
burden of proof onto the accused. ing statutory presumptions, many of which were of
limited application in any event.
The Criminal Code also includes other presump-
tions that shift the “primary” or “legal” burden of
3. Inferences From Evidence
proof to the accused. These are often referred to as
“reverse onus” provisions. The trier of fact is re- A judge or jury may make logical inferences from
quired to apply the presumption unless the accused evidence, especially in cases of circumstantial evi-
disproves it on a balance of probabilities. An exam- dence. For instance, possession of property or drugs
ple of this type of presumption is found in s. 320.35 can be inferred from their presence in a residence
of the Criminal Code: over which the accused has exclusive or primary
In proceedings in respect of an offence under sec-
care and control (R. v. Fisher, 2005 BCCA 444).
tion 320.14 or 320.15, if it is proved that the ac- Similarly, an accused may be convicted of a break
cused occupied the seat or position ordinarily oc- and enter where the accused’s fingerprints are
cupied by a person who operates a conveyance, found on an item inside the premises (R. v. O’Neill,
the accused is presumed to have been operating [1996] 71 B.C.A.C. 295).
the conveyance unless they establish that they did
not occupy that seat or position for the purpose of
Other common evidentiary inferences include:
setting the conveyance in motion. (a) The “common sense inference” that people in-
tend the natural consequences of their actions
In some cases, a single Criminal Code section may (Regina v. Buzzanga and Durocher (1979), 49
contain both types of presumptions. One example C.C.C. (2d) 369 (Ont. C.A.)) (But note that
of this type of provision is s. 349, which defines the any evidence that creates a reasonable doubt
offence of being unlawfully in a dwelling house. about the accused’s actual intent will displace
Section 349(1) requires an accused to establish (on this inference.); and
a balance of probabilities) the existence of a “law-
ful excuse” to be in the dwelling house, and (b) The “doctrine of recent possession,” which
s. 349(2) provides that in the absence of “any evi- provides that on a charge of possession of sto-
dence to the contrary”, the absence of such a lawful len property, the unexplained possession of
excuse is proof that the accused entered the dwell- recently-stolen goods permits an inference
ing house with the intent to commit an indictable that the accused knew that the goods were sto-
offence therein. len (R. v. Kowlyk [1988], 2 S.C.R. 59). This
inference is not mandatory and cannot be
Some of these statutory presumptions have been drawn if the accused gives an explanation for
challenged under s. 11(d) of the Charter, which en- possession of the goods which could reasona-
shrines the right to be presumed innocent until bly be true.
proven guilty. In R. v. Oakes (1986), 24 C.C.C. (3d)
321 (S.C.C.), the court held that the Charter re- Where the accused does not testify, the accused’s
quires, at a minimum, that an individual must be res gestae statements to other witnesses may pro-
proven guilty beyond a reasonable doubt, and the vide an explanation that will displace the inference
state must bear that burden of proof. In R. v. (R. v. Crossley (1997), 117 C.C.C. (3d) 533
Downey, [1992] 2 S.C.R. 10, the court held that a (B.C.C.A.)).
statutory presumption will not infringe the Charter
only where proof of a basic fact included in the pre- [§5.02] Eyewitness Identification of the
sumption leads “inexorably” to proof of the pre- Accused
sumed fact.
In some cases, reverse onus provisions were found Highly-publicized cases of wrongful convictions have
to infringe s. 11(d) of the Charter but were upheld resulted in close scrutiny of all identification evidence,
as being demonstrably justified under s. 1 of the and judges now carefully caution themselves, or the jury,
Charter. In R. v. Chaulk (1990), 62 C.C.C. (3d) regarding identification of the accused (R. v. Sophonow
193, the Supreme Court of Canada upheld the re- (No. 2) (1986), 25 C.C.C. (3d) 415 (Man. C.A.), leave to
quirement that an accused prove the defence of appeal refused (1986), 54 C.R. (3d) xxvii (S.C.C.)).
what was then called “insanity” (now, “not crimi- A prudent Crown will warn witnesses to be fair and cau-
nally responsible by reason of mental disorder”) on tious with respect to identification of the accused. Where
a balance of probabilities. Similar reasoning was identity is in issue, competent defence counsel will often
applied in R. v. Stone (1999), 134 C.C.C. (3d) 353 find much to cross-examine those witnesses about, in-
(S.C.C.) with regard to the defence of automatism. cluding the length of time they had to make the observa-
tion, the quality of the lighting or the witness’s eyesight,

Criminal Procedure
 67
the presence of objects or persons that interfered with the 2. Police “Line-ups” and Photo Packs
witness’s observations, and the level of detail in the
Physical “line-ups” of suspects are rare now, but a
identification itself. In many cases, identification of the
suspect is entitled to consult a lawyer before being
accused does not depend solely upon eyewitnesses, but
presented for viewing by a witness (R. v. Leclair
rather depends upon a combination of circumstantial
and Ross (1989), 46 C.C.C. (3d) 129 (S.C.C)). Re-
evidence, eyewitness evidence, and sometimes forensic
fusal to participate in a line-up must not be regarded
evidence. Normally, there are discrepancies among eye-
as evidence of guilt (R. v. Shortreed (1990), 54
witness descriptions, and sometimes there are irregulari-
C.C.C. (3d) 292 (Ont. C.A.)). An unfair line-up,
ties in police procedure. Counsel for the defence need to
where the suspect is presented alone or with dissim-
bring these matters to the attention of the judge or jury,
ilar persons, will greatly weaken the identification.
whose responsibility it is to carefully consider all the
evidence, including its flaws (see R. v. Whitford, 2006 More commonly, witnesses are shown a photo pack
BCCA 32). or series of photographs, which counsel should
scrutinize for fairness in the choice of photographs
1. Descriptions of the Accused and the manner in which police presented them to a
witness. Although the report on the Sophonow In-
A witness’s identification of an accused in the
quiry recommended certain specific procedures for
courtroom, by itself, is usually accorded little
police officers who show photo packs to witnesses,
evidentiary weight (see the reasons of Madam
those recommendations do not have the force of
Justice Rowles, in dissent, in R. v. Reitsma (1997),
law, and photo identification is not excluded if
97 B.C.A.C. 203, adopted at [1998] 1 S.C.R. 769).
those procedures were not followed. Instead, the
To have evidentiary weight, in-court recognition
weight of photo identification depends upon the
should be supported by the witness’s testimony
fairness of the procedure used in the particular case
describing what the witness remembers about
(R. v. Doyle, 2007 BCCA 587).
details of the accused’s appearance when first seen
(R. v. McKay (1996), 61 W.W.R. 528 (B.C.C.A.); Where a witness has seen or been shown a photo-
R. v. Williams (1982), 66 C.C.C. (2d) 231 (Ont. graph of the accused prior to court and was advised
C.A.)). The “honest but mistaken” witness is not or led to believe that the person in that photograph
uncommon in identification cases, as the witness’s is the person who committed the offence, this may
ability to observe detail is always dependent upon taint their subsequent in-court identification of the
distance, angle, lighting, duration, and other factors accused as the offender. Similarly, if the witness
which should be explored in examination and cross- has seen images of the accused in media, that too
examination (R. v. Gordon, [2002] O.J. No. 932 may taint their courtroom identification evidence
(Ont. S.C.J.)). While a witness’s testimony (R. v. Hibbert (2002), 163 C.C.C. (3d) 129
identifying an accused may be challenged if the (B.C.C.A.); R. v. Smierciak, (1946), 87 C.C.C. 175
witness has given different descriptions at different (Ont. C.A.)).
times, the trier of fact may only rely on prior
Even if a witness at trial no longer recognizes the
descriptions given by the witness for the limited
accused, the Crown can lead evidence that the wit-
purpose of assessing the reliability and credibility
ness previously identified the accused’s photograph,
of the witness’s testimony. Evidence of the
provided that the witness confirms in court that they
witness’s prior descriptions is only admissible for
previously identified the photograph (Tat).
the truth of its substantive contents if it satisfies the
“principled approach” to the rule against hearsay or
3. Accused Sitting in Body of Courtroom
is admissible as past recollection recorded (R. v. Tat
(1997), 117 C.C.C. (3d) 481 (Ont. C.A.); R. v. When identification of the accused is in issue, de-
Campbell, 2006 BCCA 109). fence counsel may apply to the judge to permit the
accused to sit in the public area of the courtroom, so
The weaknesses and dangers inherent in identifica-
that a witness will not make any assumption about
tion evidence are most pronounced where a witness
the offender’s identity based on where the accused
is asked to identify a person previously unknown to
is sitting (R. v. Levogiannis (1993), 85 C.C.C. (3d)
the witness whom the witness saw only briefly.
327 (S.C.C.)). Of course, seating an accused in an
Where the witness purports to recognize someone
otherwise empty courtroom where only counsel and
whom the witness has known quite well for some
the judge are present does little to advance the ob-
time prior to the sighting, the issue is not really one
jective of an impartial identification.
of identification—the issue is whether the circum-
stances at the time of the offence were such that the
4. Video Evidence of an Offence
witness could reliably recognize the accused (R. v.
Aburto, 2008 BCCA 78; R. v. Bardales (1995), 101 Photographs and video recordings may be tendered
C.C.C. (3d) 289 (B.C.C.A.), aff’d [1996] 2 S.C.R. as exhibits upon testimony by a witness (not neces-
461). sarily the photographer) who can say that the imag-

Criminal Procedure
 68
es accurately depict what they purport to show (R. evidence and arguments and decides whether the evi-
v. Bannister (1936), 66 C.C.C. 38 (N.B.S.C. App. dence is admissible. If the judge rules that the evidence
Div.)). The judge or jury may recognize the accused is admissible, the evidence is called again before the ju-
in a video recording of the offence, if the recording ry. In jury trials, voir dires are often heard and decided
is of sufficient clarity and duration (R. v. Nikolovski after the jury has been empanelled but before the jury is
(1996), 111 C.C.C. (3d) 403 (S.C.C.)). Normally, it required to attend court to begin hearing evidence.
is for the trier of fact to decide if the video or photo
In some circumstances it may not be necessary to call
evidence sufficiently identifies an accused. In some
evidence on a voir dire. The BC Court of Appeal has
cases, however, a witness who knows the accused
directed trial judges to consider in each case whether a
well may be called upon to identify the accused (R.
formal voir dire with oral testimony is required, or
v. Leaney [1989] 2 S.C.R. 393). The judge must
whether the issues can be determined on the basis of a
permit counsel to tender any other evidence about
summary of the evidence and submissions of counsel (R.
the identification or the video recording, and to
v. Vukelich, (1996), 108 C.C.C. (3d) 193). Given this
make submissions on any limitations of the video
directive, counsel seriously contesting the admissibility
images (R. v. T.A.K., 2006 BCCA 105).
of evidence should be prepared to explain the need for a
formal voir dire.
[§5.03] Voir Dire
[§5.04] Statements of the Accused
A voir dire is a procedure in which the trial proper is
suspended, and the court embarks upon a trial within a
1. General
trial to determine the admissibility of a certain item of
evidence. Any type of evidence that requires a ruling as Only the Crown may choose to tender as evidence
to admissibility may be the subject of a voir dire. Some the utterances or statements of an accused; the ac-
examples are the admissibility of statements of the ac- cused may not tender “self-serving” evidence of
cused; the admissibility of hearsay; and the admissibility what the accused said to police or other persons
of evidence obtained in a search that is alleged to violate (with the exception of evidence that is admissible as
the Charter. part of the res gestae; see the discussion of res ges-
tae statements at §5.06(2)). Also, an accused’s ut-
Evidence on a voir dire may consist of the examination
terances or statements can only be used as evidence
and cross-examination of witnesses, including the ac-
with regard to that accused, and are not admissible
cused. If the accused testifies on a voir dire, their evi-
as evidence with regard to any co-accused.
dence is not part of the trial, and the accused need not
testify later during the trial. Exhibits such as an expert’s Perhaps the most common reason to hold a voir dire
report or the recorded statements of the accused are en- is to determine whether statements of the accused,
tered as exhibits on the voir dire, separate from exhibits made to a person in authority, are (a) voluntary and
that are evidence on the trial. (b) obtained without violating either the Charter
right to silence (s. 7) or right to counsel (s. 10(b)).
Counsel should advise the court at the pre-trial confer-
A single voir dire may deal with all these issues,
ence, or at the beginning of the trial, if counsel antici-
but the onus of proof differs: there is an onus on the
pates any voir dire. Since the application is based on an
Crown to prove voluntariness of the accused’s
objection to the admissibility of the evidence, the appli-
statements beyond a reasonable doubt, and there is
cation for a voir dire must be made before, and certainly
an onus on the defence to prove Charter violations
no later, than when the evidence is tendered (R. v.
on a balance of probabilities.
Kutynec (1991), 70 C.C.C. (3d) 289 (Ont. C.A.)).
In a Charter voir dire, although the application and
In a trial without a jury, the judge declares a voir dire,
the burden of proof are both the accused’s, the
hears the evidence at issue, and rules on its admissibility.
Crown will often call police officers or other wit-
If the evidence is ruled admissible, Crown and defence
nesses to testify in chief, so that the accused can
counsel can agree that the evidence in the voir dire (or
cross-examine them. To prove a Charter breach, the
part of it) then becomes evidence in the trial, to avoid
defence may either rely solely on the cross-
repeating the evidence. When “rolling over” evidence
examination of witnesses called by the Crown, or
from a voir dire into the trial, counsel must take care to
may choose to call its own witnesses, including the
clearly state on the record which pieces of evidence are
accused.
admissible and inadmissible in the trial proper: R. v.
Ahmed-Kadir, 2015 BCCA 346. To prove voluntariness, the Crown will usually call
as witnesses on the voir dire all police officers and
During a jury trial, counsel should advise the court
other “persons in authority” who dealt directly with
whenever admissibility of evidence is at issue (without
the accused to such an extent that they may have af-
saying what the evidence is) so that the jury can be ex-
fected the voluntariness of the accused’s utterances.
cused, and the voir dire commenced. The judge hears the
Again, the defence may rely solely on the evidence

Criminal Procedure
 69
of Crown witnesses, or may call its own witnesses, An undercover police officer is not regarded as a
including the accused. “person in authority” if the accused did not subjec-
tively believe that person to be a police officer and
An accused is entitled to testify on a voir dire
therefore felt no duty to speak (R. v. Liew (1999),
without prejudice to the accused’s right to not take
137 C.C.C. (3d) 353 (S.C.C.); R. v. Grandinetti,
the stand before the jury. The accused may be
2005 SCC 5). A Justice of the Peace or a Provincial
examined and cross-examined about statements
Court judge presiding at a bail hearing is also not a
made to persons in authority, but not about their
person in authority, and an accused’s statements at
innocence or guilt (R. v. Erven, [1979] 1 SCR 926).
a bail hearing need not be proven voluntary (R. v.
Crown counsel are not permitted to use a voir dire
Tran, 1995 BCCA 535). If the statements in issue
as a forum for unfair questioning of the accused and
were made by the accused’s lawyer, they cannot be
must confine cross-examination to what is
directly attributed to the accused.
necessary to determining the issues on the voir dire.
Inconsistencies between the testimony of an
3. Voluntariness
accused on a voir dire and at trial can be used to
impugn credibility but not to establish culpability The classic expression of the “confessions rule” is
(R. v. Cochrane, 2018 ABCA 80). found in R. v. Ibrahim, [1914] A.C. 599 at 609,
where Lord Sumner stated:
The Crown must prove that the accused’s
statements were voluntary, both if the Crown … no statement by an accused is admissible in
intends to tender those statements as part of its case, evidence against him unless it is shown by the
and also if the Crown wants to be able to cross- prosecution to have been a voluntary statement, in
examine the accused on those statements should the the sense that it has not been obtained from him
accused choose to testify (Lizotte v. R. (1980), 61 either by fear of prejudice or hope of advantage
exercised or held out by a person in authority.
C.C.C. (2d) 423). Voluntariness must be proven,
whether a statement is inculpatory or exculpatory In R. v. Hodgson, [1998] 2 S.C.R. 449, Cory J. af-
(or both). Defence counsel may admit voluntariness firmed that an accused’s statement to a person in
and dispense with the need for a voir dire, but such authority must not have been coerced or induced,
waiver must be clear and unequivocal (R. v. Park and must have been the product of an “operating
(1981), 59 C.C.C. (2d) 385 (S.C.C.)). mind.” To meet these requirements, accused per-
An accused’s utterance that is the actus reus, or part sons must be able to understand what is said, be
of the offence charged, is admissible without a voir able to understand that their utterances could be
dire. These are some examples: used against them, and be able to choose to remain
silent (R. v. Whittle (1994), 92 C.C.C. (3d) 11
• threatening words, where the offence is utter- (S.C.C.)). These requirements aim to ensure that
ing threats; only reliable and fairly obtained statements are ad-
• words about refusing to give a breath sample, mitted into evidence.
where the offence is refusal; The Supreme Court of Canada comprehensively re-
• false or misleading information given to po- viewed the law of voluntariness in R. v. Oickle
lice, such as giving a false name or refusing to (2000), 147 C.C.C. (3d) 321. Threats or induce-
identify oneself, where the offence is obstruc- ments by police or other persons in authority, and
tion or public mischief; and oppressive conditions of interrogation, may render
an accused’s statement unreliable and involuntary.
• words such as “stick ‘em up,” where the of- There also may be an issue as to whether police
fence is robbery. trickery deprived the accused of the choice to re-
main silent. A statement that is involuntary due to
2. Persons in Authority any of these factors will be excluded from evidence.
Voluntariness is at issue only when the accused Generally, whenever the police offer something in
speaks to a “person in authority,” typically a police return for a statement (quid pro quo), the admissi-
officer or prison guard. It may be argued that an bility of the statement will be in question. However,
employer, parent, or other person is “in authority” if an experienced and confident suspect who bargains
the accused reasonably believed that the person with police may be freely deciding whether or not
could influence or control the investigation or pros- to speak, so that the accused’s statements remain
ecution. Defence counsel must seek a voir dire in voluntary (R. v. Spencer, 2007 SCC 11).
such cases, or the judge may declare a voir dire of
the judge’s own motion (R. v. S.G.T., 2010 SCC 20; 4. Charter Sections 7 (Right to Silence) and 10(b)
R. v. Hodgson, [1998] 2 S.C.R. 449; R. v. Wells, (Right to Counsel)
[1998] 2 S.C.R. 517). Violations of the right to silence and the right to
counsel normally result in the exclusion of the ac-
Criminal Procedure
 70
cused’s statement under s. 24(2) of the Charter. [§5.05] Statements of Non-Accused
Procedurally, evidence with respect to such alleged Witnesses
violations is often led in the same voir dire in which
the voluntariness of the statement is determined, Like the accused, witnesses may be cross-examined on
and the issues are often related. For example, a se- their prior inconsistent statements. Generally, incon-
verely intoxicated person may lack the operating sistent statements are admissible only for the purpose of
mind required for voluntariness, and may also be assessing a witness’s credibility, unless the witness
unable to appreciate the consequences of waiving adopts the prior inconsistent statement as the truth, in
the right to counsel (R. v. Clarkson (1986), 25 which case it becomes the witness’s evidence. Cross-
C.C.C. (3d) 207 (S.C.C.)). examination on a written inconsistent statement of an
opposing witness is governed by s. 10(1) of the Canada
If a detainee (person being detained) tells the police
Evidence Act. Where the witness does not admit making
they want to speak with counsel, any statements
the prior statement, pursuant to s. 11 of the Canada Evi-
elicited by the police before the detainee has had a
dence Act, counsel may call evidence to prove that the
chance to do so will commonly be excluded from
witness in fact did make the statement. Exceptionally, a
evidence. In practice, police officers usually make
party may apply for leave to cross-examine their own
the phone calls and then pass the phone along to the
witness on a written inconsistent statement, pursuant to
detainee so that the detainee may speak either with
s. 9(2) of the Act (R. v. Milgaard (1971), 2 C.C.C. (2d)
the Brydges duty counsel, or with counsel of choice.
206 (Sask. C.A.), leave to appeal refused (1971), 4
Contact with counsel may be of a brief duration and
C.C.C. (2d) 566n (S.C.C.); R. v. Rouse (sub nom. McIn-
still qualify as effective access to counsel.
roy v. R.) (1979), 42 C.C.C. (2d) 481 (S.C.C.)). Counsel
However, if a young or mentally limited suspect
may also attempt to have their witness declared hostile:
receives only brief, incomplete information from
Reference Re R. v. Coffin, [1956] S.C.R. 191. See also
counsel regarding a very serious charge, a court
§5.06(4) (Application of the “Principled Approach” to
may hold that there was no effective access to
Prior Inconsistent Statements) below. Needless to say, if
counsel and the suspect’s subsequent confession
the trial has come to the point where counsel is applying
may be excluded (R. v. Osmond, 2007 BCCA 470,
to cross-examine their own witness, things are not going
leave to appeal refused [2007] S.C.C.A. No. 545).
as planned.
In Canada, a suspect is not entitled to have a lawyer
Witnesses’ prior consistent statements are regarded as
present during police questioning, and generally po-
self-serving. They are generally not admissible in evi-
lice are not required to cease questioning simply
dence, and do not corroborate the truth of that witness’s
because suspects state repeatedly that they do not
testimony (R. v. Bevan, [1993] 2 S.C.R. 599; R. v.
want to talk to the police. Police are permitted to at-
Beland, [1987] 2 S.C.R. 398; R. v. Kokotailo, 2008
tempt to persuade suspects to forgo their right to si-
BCCA 168).
lence, but depending upon a suspect’s mental and
emotional states, there may be an issue as to wheth- In exceptional cases, a prior consistent statement may be
er police pressure has overcome a suspect’s free admissible to rebut an allegation or suggestion of “recent
will, or a suspect’s ability to choose whether or not fabrication”; in other words, if the apparent position of
to talk. Thus, the confessions rule and the right to the opposing party is that the witness has made up a
silence have become “functionally equivalent” (R. false story since the alleged offence. However, even
v. Singh, 2007 SCC 48). when tendered to rebut fabrication, a prior consistent
statement is relevant only to credibility and is not inde-
In general, a detainee is only entitled to an initial
pendent corroborative evidence (R. v. Evans, [1993] 2
consultation with legal counsel in order to fulfill
S.C.R. 629; R. v. Stirling, 2008 SCC 10). A prior con-
their s. 10(b) rights (R. v. Sinclair, [2010] 2 S.C.R.
sistent statement may also be admissible “as part of the
310). However, in some instances, a detainee may
narrative” for the limited purpose of showing the fact
be entitled to a renewed legal consultation, such as
and timing of a complaint, which may assist in assessing
when there is a new charge or a new non-routine
a complainant’s credibility (R. v. Dinardo, 2008 SCC
investigative procedure is deployed by police (e.g. a
24; R. v. Ay (1994), 93 C.C.C. (3d) 456 (B.C.C.A.)). On
polygraph or line-up).
the other hand, in sexual assault cases, especially cases
If police breach a suspect’s Charter rights in obtain- of abuse within families, the fact that a complainant did
ing a statement, and police later attempt to obtain not report the offence should never reduce that com-
another statement, the initial breach may “taint” and plainant’s credibility (R. v. D.(D.), [2000] 2 S.C.R. 275).
render the later statement inadmissible, if the initial
breach and the later statement are part of the same
transaction or course of conduct, or if there are
temporal or causal connections (R. v. Wittwer, 2008
SCC 33; R. v. I.(L.R.) and T.(E.), [1993] 4 S.C.R.
504).

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 71
[§5.06] Hearsay statement by the accused which the defence seeks to
have admitted a res gestae statement may be
1. General Rule elicited in the defence’s cross-examination of the
arresting officer or of whichever other Crown
A classic statement of the rule against hearsay is set
witness heard the statement. The jurisprudence on
out in the case of Subramanian v. D.P.P., [1956] 1
this topic was thoroughly reviewed in R. v. Crossley
W.L.R. 965 at 970 (P.C.):
(1997), 117 C.C.C. (3d) 533 (B.C.C.A.). Factors to
Evidence of a statement made to a witness by a be considered when assessing the admissibility of
person who is not himself called as a witness may such utterances include the spontaneity of the
or may not be hearsay. It is hearsay and inadmis- statement and the degree of contemporaneity to the
sible when the object of the evidence is to estab- act in issue; whether the declarant had any motive,
lish the truth of what is contained in the state- or any time or opportunity to concoct the statement;
ment. It is not hearsay and is admissible when it is
proposed to establish by the evidence, not the
and the mental and emotional state of the declarant
truth of the statement, but the fact that it was (R. v. Risby, [1978] 2 S.C.R. 139; and R. v. Slugoski
made. The fact that the statement was made, quite (1985), 17 C.C.C. (3d) 212 (B.C.C.A.)).
apart from its truth, is frequently relevant in con-
sidering the mental state and conduct thereafter of 3. The “Principled Approach”
the witness or of some other person in whose
presence the statement was made.
The law of hearsay in Canada was substantially
changed by a long series of cases from R. v. Khan,
More recently, in R. v. Khelawon, [2006] 2 S.C.R. [1990] 2 S.C.R. 531 to R. v. Khelawon, 2006 SCC
787, the Supreme Court of Canada defined hearsay 57; R. v. Baldree, 2013 SCC 35; and R. v.
as follows: Bradshaw, [2017] 1 S.C.R. 865. In R. v. Smith,
[1992] 2 S.C.R. 915, Lamer C.J.C. wrote: “Hearsay
The essential defining features of hearsay are evidence is now admissible on a principled basis,
therefore the following: (1) the fact that the the governing principles being the reliability of that
statement is adduced to prove the truth of its con- evidence, and its necessity.” However, subsequent
tents and (2) the absence of a contemporaneous decisions have clarified that courts should first
opportunity to cross-examine the declarant.
consider whether a statement is admissible under
any traditional exception to the hearsay rule (R. v.
The key is the purpose for which the evidence is
Starr, 2000 SCC 40; R. v. Mapara, 2005 SCC 23).
being tendered. If during a trial you hear evidence
Where admission under a traditional exception is
that sounds suspiciously like hearsay, stand up and
successfully opposed, or where no traditional
object by asking the purpose for which the state-
exception applies, courts should resort to the
ment is being tendered. If evidence is not tendered
“principled approach” and should assess necessity
for the truth of what was said, but for another pur-
and “threshold reliability.”
pose—such as to show the state of mind of either
the speaker or the person who heard the state- The requirement of “necessity” is usually met by
ment—it may not be hearsay and may be admissi- proof that the speaker cannot testify because the
ble (R. v. Ly (1997), 119 C.C.C (3d) 479 (S.C.C.); speaker is unavailable, either because the speaker is
R. v. Nguyen and Bui, 2003 BCCA 556). now deceased (R. v. Blackman, 2008 SCC 37), in-
competent to give testimony (R. v. Hawkins (1996),
2. Traditional Exceptions 111 C.C.C. (3d) 129 (S.C.C.)), or has no present
memory of events due to an intervening injury or
The rule against hearsay has always been subject to
illness. Note that the principled approach to hearsay
various common-law exceptions. Some, such as the
developed largely in response to the dilemma of the
exception for dying declarations and the exception
fearful and silent child complainants in Khan and R.
for declarations against penal interest, are rarely in-
v. Rockey (1996), 110 C.C.C. (3d) 481, and in these
voked. The exception for statements of intent made
cases the criterion of necessity was satisfied even
by persons who are since deceased sometimes aris-
though the witnesses were physically available to
es in homicide cases, notably R. v. Smith, [1992] 2
testify.
S.C.R. 915; R. v. Chahley (1992), 72 C.C.C. (3d)
193 (B.C.C.A.); and R. v. Mafi (1998), 130 C.C.C. The parameters of “threshold reliability” were rede-
(3d) 329 (B.C.C.A.). fined in Khelawon. Threshold reliability is estab-
lished when the hearsay is “sufficiently reliable to
Perhaps most commonly invoked by the defence is
overcome the dangers arising from the difficulty of
the exception for res gestae statements, which are
testing it.” The hearsay dangers relate to the diffi-
utterances made at the time of, or soon after, an
culties of assessing the declarant’s perception,
allegedly criminal act. The res gestae exception
memory, narration or sincerity without the tradi-
often arises in cases of possession of drugs,
tional safeguards of the declarant giving the evi-
weapons, stolen property, or counterfeit money. A

Criminal Procedure
 72
dence in court (under oath or its equivalent) and ments were admissible only to impeach a witness’
subject to contemporaneous cross-examination. credibility, and not as evidence of the truth of the
statement. However, in R. v. B.(K.G.), the Supreme
In Bradshaw, the Supreme Court of Canada de-
Court decided that the fact the witness recanted at
scribed two general means of establishing threshold
trial made admission of the prior statements neces-
reliability:
sary, and the criterion of “reliability” could be met
(1) Procedural reliability is established when if other factors were present at the time the state-
there are adequate substitute safeguards for ments were made. Specifically, the court found that
testing the evidence, despite the fact that the there were sufficient “circumstantial guarantees of
declarant has not given the evidence in court, reliability” to permit admission of the prior state-
under oath, and under the scrutiny of contem- ment where the statement was made under oath or
poraneous cross-examination. These substi- solemn affirmation following a warning about crim-
tutes must allow the trier of fact to rationally inal sanctions, the statement was videotaped in its
evaluate the truth and accuracy of the hearsay entirety, and the witness could be cross-examined at
statement. Among the substitutes for tradition- trial. Its weight as evidence would remain to be as-
al safeguards are video-recording the state- sessed by the trier of fact.
ment, administration of an oath, and warning
The Supreme Court left open the possibility that
the declarant about the consequences of lying.
there might be guarantees of threshold reliability
However, some form of cross-examination, as
other than those defined in R. v. B.(K.G.). Some in-
for example of a recanting witness at trial, is
teresting fact patterns have since founded the ad-
usually also required.
mission of the prior inconsistent statements of re-
(2) Substantive reliability is established where the canting witnesses. In R. v. U.(F.J.), the statement of
hearsay statement is inherently trustworthy. To a young girl who recanted the allegation that her fa-
determine whether the statement is inherently ther had repeatedly sexually assaulted her was ad-
trustworthy, a trial judge considers the circum- mitted on the basis that it was “strikingly similar” to
stances in which the statement was made and the father’s own voluntary statement about the same
any evidence that corroborates or conflicts offences. In R. v. Naicker, 2007 BCCA 608, leave
with the statement. The standard for substan- to appeal denied [2008] S.C.C.A. No. 45, a convict-
tive reliability is high: the judge must be satis- ed former co-accused refused to testify (and there-
fied that the statement is so reliable that con- fore could not be cross-examined), but his statement
temporaneous cross-examination on it would incriminating the accused was admitted because it
add little if anything to the process. had indicia of reliability (and it had been admitted
on his own conviction). Similarly, in R. v. Adam,
Procedural and substantive reliability are not mutu-
2006 BCSC 1355, where contrary to their plea
ally exclusive. They may work in tandem, in that
agreements two of the accused’s’ co-conspirators
elements of both can combine to overcome the spe-
refused to testify, their prior statements were admit-
cific hearsay dangers a statement might present,
ted. A rare example of hearsay tendered by the de-
even when each, on its own, would be insufficient
fence, which was found inadmissible due to lack of
to establish reliability.
threshold reliability, appears in R. v. Post, 2007
Admission of hearsay evidence is also subject to the BCCA 123.
trial judge’s residual discretion to exclude evidence
Generally, the admissibility of a “K.G.B.” statement
where its probative value is slight and where it
is determined in a voir dire, which begins under the
would unduly prejudice the accused (Smith). Once
terms of s. 9(2) of the Canada Evidence Act, and
hearsay is admitted, the trier of fact must decide the
continues with evidence on the necessity and relia-
“ultimate reliability” of the hearsay evidence; that
bility of the statement. However, there are alterna-
is, whether the statements were actually made, were
tive procedures under s. 9(1) of the Canada Evi-
accurately reported, and were truthful. As with all
dence Act (R. v. Uppal, 2003 BCSC 1922 and 2003
evidence, the trier of fact also decides what weight
BCSC 1923), or in Crown re-examination of a wit-
(if any) to accord to such statements.
ness who has recanted on cross-examination (R. v.
Glowatski, 2001 BCCA 678).
4. Application of the “Principled Approach” to
Prior Inconsistent Statements
5. Documents as Hearsay—Statutory Exceptions
In R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257, the
Generally, when the author or maker of a document
Supreme Court of Canada decided that the prior in-
does not testify, that document is hearsay, but there
consistent statements of a witness who recants those
are many statutory exceptions to this rule. The
statements at trial may be admissible under the new
Canada Evidence Act provides for admission of
principled approach to the admissibility of hearsay
business records, banking records, and government
evidence. Under the common law rules, such state-

Criminal Procedure
 73
records (ss. 26-30); the provincial Motor Vehicle the accused because the accused is a “bad” person
Act provides for the admission of motor vehicle or is “likely” to have committed the offence.
records (s. 82); the Criminal Code provides for the In general, the accused’s character is not a fact in
admission of breath analysis certificates (now issue in a criminal case. While it is open to the ac-
s. 320.31; formerly s. 258); and the Controlled cused to make it so by adducing evidence of their
Drugs and Substances Act provides for the general good reputation for a character trait in issue,
admission of drug analysts’ certificates (s. 51). such as truthfulness or nonviolence, counsel for the
These exceptions generally are subject to notice accused must recognize that in most cases such evi-
provisions in each statute and counsel should al- dence will put the accused’s character in issue,
ways read the notice provisions carefully. Notice is opening the door for the Crown not only to cross-
valid if served on the accused, counsel, an articled examine the accused on their character in general,
student, or perhaps even office staff. If the statute past convictions and their details, and any other
does not explicitly require written notice, filing the specific instances demonstrating the accused’s bad
document at the preliminary inquiry is sufficient behaviour, but also to call evidence in reply to
notice (R. v. Norris (1993), 35 B.C.A.C. 133). In demonstrate the accused’s bad character.
general, the remedy for late notice or lack of notice Where the defence does choose to adduce evidence
is an adjournment. of the accused’s good character, it may do so by
Further guidance on the law of documentary evi- eliciting testimony as to the accused’s general repu-
dence may be found in Nightingale’s The Law of tation for a relevant character trait, but witnesses
Fraud and Related Offences (Toronto: Carswell, are not permitted to express their personal opinion
2019, supplemented text) and in Electronic Evi- of the accused or to describe the accused’s prior
dence in Canada, (Toronto: Carswell, 2019, sup- specific good acts. The accused, however, may tes-
plemented text.) tify as to specific acts of good conduct demonstrat-
ing the relevant trait, or may tender expert evidence
Other statutory exceptions to the rule against hear- as to the accused’s disposition which renders their
say appear in ss. 715.1-715.2 of the Criminal Code, participation in the offence less likely (R. v. Mohan,
which permit video-recorded statements of disabled [1994] 2 S.C.R. 9).
witnesses and witnesses under the age of 18 to be
entered into evidence at trial, providing the witness Evidence of the accused’s good character is rele-
adopts the statement in their testimony (R. v. C.C.F. vant both to the accused’s credibility, and to render
(1997), 120 C.C.C. (3d) 225 (S.C.C.)). However, unlikely the accused’s participation in the offence.
recorded statements admitted under this provision (R. v. Kootenay (1994), 27 C.R. (4th) 376 (Alta.
are not independent corroboration of the witness’s C.A.); R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146
testimony (R. v. L.(D.O.), [1993] 4 S.C.R. 419; R. v. (B.C.C.A.)). With respect to specific offences such
S.(K.P.), 2007 BCCA 397). as sexual assault upon children, however, the trier
of fact is entitled to find that evidence of good char-
acter has limited probative value (R. v. Profit
[§5.07] Character Evidence (1993), 85 C.C.C. (3d) 232 (Ont. C.A.)).
1. Evidence of Accused’s Good or Bad Character 2. “Putting Character in Issue”
The Crown must not tender evidence that indicates It is often difficult to determine whether the accused
or suggests that the accused is of bad character or has put their character in issue by the conduct of
has a propensity to commit offences, unless the evi- their defence. The accused does not put their char-
dence is relevant to some other issue in the case, acter in issue simply by denying the prosecution’s
and unless the probative value of the evidence out- allegations, or by advancing a positive defence or
weighs its prejudicial effect upon the defence (R. v. justification, such as self-defence. However, where
B.(F.F.), [1993] 1 S.C.R. 697; R. v. G.(S.G.), [1997] the accused asserts, either expressly or impliedly,
2 S.C.R. 716). Sometimes the accused’s other bad that they are unlikely to have committed the offence
behaviour, before or after the offence, may be rele- due to good character, then the accused has put their
vant to their motive or intent to commit the offence. character in issue. Where defence counsel is ap-
For instance, “relationship evidence” tendered to proaching the boundary of this issue, senior Crown
prove motive in cases of spousal violence. Howev- will often rise to advise the court, and their friend,
er, counsel should take great care to determine legal that they believe the line is fast approaching.
relevance and admissibility before such evidence is
heard by a jury. Where such evidence is admitted There are several ways in which counsel can put the
for a limited purpose only, the trial judge must care- accused’s character in issue, and it would be unwise
fully instruct the jury on the limited admissibility of to attempt to list them all. Some of the more obvi-
the evidence, and warn the jury against convicting ous examples, however, include adducing evidence

Criminal Procedure
 74
that the accused is a nonviolent person when they criminal activities, past dishonesty, or motives to
are charged with assault; eliciting evidence with re- lie, including involvement in the offence or benefits
spect to the accused’s financial probity when they from the police or the prosecution. Such a
are charged with fraud; adducing evidence to show “Vetrovec” warning is usually required regarding
that a third party, by reason of disposition, is more the testimony of in-custody informers and accom-
likely to have committed the offence; and of course plices. The warning alerts the jury:
where the accused, when asked if they committed
• drawing the jury’s attention to each witness
the offence, testifies that “I would never do such a
whose testimony requires special scrutiny;
thing.”
• explaining why the testimony requires special
Once the accused has put their character in issue,
scrutiny, with reference to the characteristics of
the Crown may cross-examine the accused and de-
the witness which put their veracity in doubt;
fence witnesses, as well as lead rebuttal evidence on
the accused’s bad reputation, disposition or charac- • cautioning that it would be dangerous to convict
ter traits relevant to the offence, on details of any in reliance on the unconfirmed or unsupported
previous convictions, and on any prior bad acts that testimony of the witness; and
are similar to the offence charged (R. v. Farrant,
• directing the jury’s attention to independent
[1983] 1 S.C.R. 124; R. v. McNamara (No. 1)
evidence that is capable of confirming or
(1981), 56 C.C.C. (2d) 193 (Ont. C.A.), aff’d sub
supporting material parts of the witness’s
nom. R. v. Canadian Dredge and Dock Co., [1985]
testimony.
1 S.C.R. 662; R. v. Brass (2007), 226 C.C.C. (3d)
216 (Sask. C.A.); Alcius v. R. (2007), 226 C.C.C. (See R. v. Khela (2009), 238 C.C.C. (3d) 489; R. v.
(3d) 544 (Q.C.A.)). Smith (2009), 238 C.C.C. (3d) 481; R. v. Bevan
(1993) 82 C.C.C. (3d) 310.)
Remember, however, that evidence of the accused’s
bad character (reputation or disposition, or propen- The general rules regarding character evidence ap-
sity to have committed the offence), can only be ply to witnesses who are victims of alleged sexual
used to rebut the evidence of the accused’s good offences, except that ss. 276–277 of the Criminal
character, or to rebut the disposition evidence led to Code generally prohibit evidence of a victim’s prior
show that a third party is more likely to have com- sexual activity or sexual reputation. An evidentiary
mitted the offence. The trier of fact must be careful, hearing may be held to determine whether evidence
or be warned, not to use such evidence to reason of specific instances of sexual activity is relevant to
that because of the accused’s bad character or dis- the offence charged, and to determine whether the
position, they are more likely to be guilty (R. v. probative value of such evidence outweighs its
Dvorak (2001), 46 C.R. (5th) 160 (B.C.C.A.); R. v. prejudicial effect.
Chambers, [1990] 2 S.C.R. 1293).
4. Criminal Records
3. Character of Non-Accused Witnesses
A witness’s criminal record is a particular form of
Crown and defence witnesses other than the ac- character evidence. An ordinary witness may be ex-
cused may be cross-examined on their bad charac- amined and cross-examined about prior convictions
ter, including unrelated disreputable conduct, facts and the facts of prior offences which resulted in
underlying previous convictions, disposition to lie, convictions. In contrast, the accused may be exam-
association with others, and habits of life (R. v. Cul- ined and cross-examined about prior convictions
len (1989), 52 C.C.C. (3d) 459 (Ont. C.A.)). While but not about the facts of prior offences, unless the
trial judges have a discretion to decide whether ten- accused has put character in issue. Many defence
dered evidence should be admitted, after weighing counsel pre-empt cross-examination of the accused
the probative value of the evidence against its prej- on their criminal record by leading the record in di-
udicial effect, the exercise of that discretion will be rect examination. Crown counsel may do the same
more closely scrutinized where the effect of the rul- with Crown witnesses. Section 12 of the Canada
ing is to preclude the defence from leading evi- Evidence Act provides the statutory basis authoriz-
dence. However, trial judges will only rarely allow ing adducing evidence of prior convictions, and
any witness to testify as to whether they would be- proving those prior convictions where a witness de-
lieve another witness’s sworn testimony (R. v. nies them. Section 666 of the Criminal Code au-
Clarke (1998), 129 C.C.C. (3d) 1 (Ont. C.A.) and R. thorizes the Crown to cross-examine an accused on
v. R.I.L., 2005 BCCA 257). the specific circumstances underlying prior convic-
tions where the accused puts character in issue.
A jury must be given a “clear and sharp” warning of
the danger of relying upon the unsupported testi- Evidence of an accused’s prior convictions is only
mony of any witness who cannot be trusted to tell admissible and only has probative value to impugn
the truth under oath due to their amoral character, the accused’s credibility, and (if applicable) to rebut

Criminal Procedure
 75
any evidence of the accused’s good character. Prior those observations (R. v. Collins (2001), 160 C.C.C.
convictions must not be used to infer that the ac- (3d) 85 (Ont. C.A.)). Despite this exclusionary rule,
cused has a propensity to commit offences (R. v. opinion evidence is often adduced at trial.
W.(L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.)).
First, numerous apparent statements of fact—such
The accused has the constitutional right to know as a person’s age, height, weight and sobriety, the
whether the Crown intends to cross-examine on speed of a vehicle, and the identification of people
their record before they decide whether to testify. or things—are arguably expressions of a witness’s
Where the Crown has indicated that they intend to opinion. So long as the opinions are within the
do so, a voir dire is usually held at the end of the realm of ordinary experience and the witness
Crown’s case to decide which, if any, of the ac- formed the opinions based on the constellation of
cused’s prior convictions the Crown may put to facts observed at the time, such evidence is com-
them in cross-examination. Defence counsel may monly admitted (Graat v. R., [1982] 2 S.C.R. 819).
outline what the accused would say in their testi-
Second, if a witness has special training, skill or
mony, to allow the judge to assess the potential ef-
experience in an area that is outside the knowledge
fect of cross-examination regarding particular con-
of the trier of fact, that witness may be allowed to
victions. The trial judge has the duty to exclude
give an opinion based on the witness’s specialized
those convictions whose prejudicial effect out-
knowledge, that is, to give expert evidence. In de-
weighs their probative value (R. v. Corbett, [1988]
termining whether the witness qualifies as an ex-
1 S.C.R. 670; R. v. Underwood [1988] 1 S.C.R. 77).
pert, the question is whether the witness has “by
Cross-examination on convictions involving dis- dint of training and practice, acquired a good
honesty is generally permitted, but in jury trials, knowledge of the science or art concerning which
cross-examination on prior convictions that are sim- [their] opinion is sought, and the practical ability to
ilar to the charge at trial may be prohibited as being use [their] judgment in that science” (R. v. Kinnie
too prejudicial. A trial judge’s ruling will also be af- (1989), 52 C.C.C. (2d) 112 (B.C.C.A.)).
fected by how vigorously the accused has attacked
the character of Crown witnesses. 2. Admissibility of Expert Evidence
Absent error in principle, appellate courts are reluc- In R. v. Mohan (1994), 89 C.C.C. (3d) 402, the Su-
tant to overturn a trial judge’s ruling on the admis- preme Court of Canada held that the following cri-
sibility of the accused’s record. (R. v. Fengsted and teria govern the admissibility of expert evidence:
Stewart, 117 B.C.A.C. 95; R. v. Gibson, 2001 (a) relevance;
BCCA 297). However, the BC Court of Appeal did
order a new trial in a case where the trial judge (b) the necessity of expert evidence to assist the
failed to consider editing the accused’s lengthy rec- trier of fact;
ord in order to ensure the accused’s fair trial (R. v. (c) the absence of any rule excluding the particu-
Madrusan, 2005 BCCA 609). Of course, the Crown lar evidence; and
has the discretion to refrain from cross-examining
on all or part of the accused’s criminal record, and (d) a properly qualified expert.
counsel may agree on “editing” the record without a The burden is on the party calling the evidence to
voir dire or a “Corbett” application. establish that each of these criteria is satisfied, on
the balance of probabilities.
5. Impermissible Questions
The modern legal framework for the admissibility
It is improper for either counsel to ask a witness if of expert opinion based on Mohan is divided into
another witness could be lying (R. v. Brown and two stages. First, the evidence must meet the
Murphy (1982), 1 C.C.C. (3d) 107 (Alta. C.A.)); four Mohan factors: (1) relevance, (2) necessity, (3)
and it may be fatal for the Crown to ask the accused absence of an exclusionary rule, and (4) special ex-
why witnesses would lie about the accused (R. v. pertise. Second, the trial judge must weigh potential
Ellard, 2003 BCCA 68). risks against the benefits of admitting the evidence
(White Burgess Langille Inman v. Abbott and Hali-
[§5.08] Opinion Evidence burton Co., [2015] 2 S.C.R. 182). At the second
stage, the trial judge retains the discretion to ex-
1. General clude evidence that meets the threshold require-
ments for admissibility if the risks in admitting the
An “opinion” is an inference from observed facts. evidence outweigh its benefits. Appellate courts
The common law rules of evidence generally limit have particularly scrutinized the “necessity” of ad-
any witness to describing what that witness directly mitting expert evidence in the realm of the behav-
observed, and prohibit the witness from expressing ioural sciences to address questions of motivation
any opinions the witness may have drawn from or credibility. In R. v. D.D., 2000 SCC 43, the court
Criminal Procedure
 76
held that expert evidence regarding children’s reluc- examination of the expert regarding the expert’s ed-
tance to report sexual abuse is not necessary be- ucation, training, and experience in the specified
cause public understanding is sufficient now for the field. The limitations of an opposing expert’s quali-
topic to be addressed by a suitable jury instruction. fications should be carefully probed. The judge will
The BC Court of Appeal has held that “the admis- then rule on whether the witness is qualified to give
sion of expert evidence regarding human behaviour evidence in that field. In a jury trial, such a “qualifi-
or psychological factors relevant to credibility is cation” voir dire, unlike other voir dires, is usually
justified where the evidence goes beyond the ordi- conducted in the presence of the jury. Counsel
nary experience of a lay person” (R. v. Meyn, 2003 should be aware that by virtue of ss. 320.12 and
BCCA 401), but has also warned that courts are of- 320.31(5) of the Criminal Code, a drug recognition
ten “overly eager” to abandon their fact-finding re- expert is legislatively qualified as an expert for the
sponsibilities to such experts, and “should be wary” purposes of providing an expert opinion on impair-
of accepting evidence of experts in the behavioural ment (see R. v. Bingley, 2017 SCC 12).
sciences (R. v. Orr, 2015 BCCA 88).
Often, the expert’s qualifications are known and
Expert evidence will be treated as “novel” scientific admitted by the opposing party, but it is still wise
evidence where there is no established practice of for the party tendering the witness to briefly elicit
admitting that particular kind of evidence. Where their qualifications, in order to enhance the weight
such evidence is tendered, it is subject to special of their opinions. Once the expert is “qualified,”
scrutiny trial judges must determine whether such opposing counsel should be quick to object if the
evidence meets a threshold of scientific reliability, witness ranges beyond the specified field of exper-
and will pay particular attention to whether such tise.
evidence is truly “necessary” (R. v. J.(J.-L.), 2000
SCC 51). While once novel, DNA evidence has
[§5.09] Rebuttal Evidence
long since become generally accepted (R. v.
Terceira (1998), 123 C.C.C. (3d) 1 (Ont. C.A.),
The rule against the Crown splitting its case is well es-
aff’d [1999] 3 S.C.R. 866).
tablished. The Crown must call all the evidence it in-
tends to rely on before the accused is required to decide
3. Factual Basis for Expert Opinion
whether to present a defence (R. v. Krause, [1986] 2
A party who tenders expert evidence must establish S.C.R. 466). An accused has the constitutional right to
in evidence the facts upon which the expert’s opin- know the case they must meet before answering the
ion is based (R. v. Abbey (1982), 68 C.C.C. (2d) 394 Crown’s case (R. v. Latimer, 2001 SCC 1). The Crown
(S.C.C.)). Expert opinion may be based, in certain cannot lead in rebuttal evidence which it should or could
circumstances, on hearsay, but this will impact up- have led as part of the Crown’s case (R. v. Moir, 2013
on any weight that may be attached to it (R. v. La- BCCA 36). However, if the Crown could have led cer-
valee (1990), 55 C.C.C. (3d) 97 (S.C.C.)). Howev- tain evidence, but the evidence did not become relevant
er, the expert’s opinions must be specific to the case or did not become a “live issue” until during the defence
before the court (R. v. Li (No. 2) (1980), 59 C.C.C. case, then the Crown may lead the evidence in rebuttal
(2d) 79 (B.C.S.C.)). (John v. R., [1985] 2 S.C.R. 476; R. v. Aday, 2008
BCSC 397).
4. Procedure
Section 657.3 of the Criminal Code requires both
the Crown and defence to give notice, 30 days be-
fore the trial, of an intention to call expert evidence.
In addition, the Crown must provide a copy of its
expert’s report, or at least a summary of its expert’s
opinion, within a reasonable time before trial. The
defence must provide its report or summary of ex-
pert evidence no later than the close of the Crown’s
case.
Before an expert may give opinion evidence, the
expert must be “qualified” (R. v. Marquard, [1993]
4 S.C.R. 223). Counsel tendering the expert evi-
dence should advise the judge that counsel is seek-
ing a ruling that the witness is qualified to give
opinion evidence in a specified field, for example,
the identification of firearms and toolmarks. A voir
dire is then held for direct examination and cross-

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 77
Chapter 6 2. Challenges to State Conduct (s. 24)
Section 24(1) of the Charter allows those whose
constitutional rights have been infringed or denied
Charter Applications1 to seek a remedy that is “appropriate and just in the
circumstances” by applying to “a court of compe-
tent jurisdiction.”
Courts of competent jurisdiction possess:
[§6.01] The Charter
• jurisdiction over the subject matter;
The Canadian Charter of Rights and Freedoms (the • jurisdiction over the person; and
“Charter”) came into force in 1982. It forms Part 1 of
the Constitution Act, 1982, Canada’s Constitution. Laws • jurisdiction to grant the remedy (R. v. Mills,
of all levels of government across Canada, including [1986] 1 S.C.R. 863).
statutes, regulations, and the common law, must be con- (a) Criminal Trial Court
sistent with the Constitution (RWDSU v. Dolphin Deliv-
ery Ltd., [1986] 2 S.C.R. 573). The criminal trial court is a court of competent
jurisdiction for most Charter remedies, unless it
Section 52(1) of the Constitution Act, 1982 proclaims is necessary to obtain a remedy prior to trial to
the Constitution as “the supreme law of Canada” and prevent a continuing violation, or a lower court
declares any law inconsistent with the Constitution, “to itself violated the Charter (Mills, supra).
the extent of the inconsistency, of no force or effect.”
This subsection provides the basis for constitutional (b) Superior Courts
challenges to laws that either violate the Charter in pur- Superior courts have constant and concurrent
pose or effect, or are inconsistent with other parts of the jurisdiction to hear s. 24(1) applications, to en-
Constitution (i.e. under a division of powers analysis). sure there is always a court of competent juris-
Corporations cannot claim their personal freedoms guar- diction (Doucet-Boudreau v. Nova Scotia (Min-
anteed by the Charter were infringed. Instead, they may ister of Education), 2003 SCC 62). The trial
argue that a law is constitutionally invalid under s. 52 (R. court, however, is the preferred forum for hear-
v. Wholesale Travel Group, [1991] 3 S.C.R. 154). ing such applications, as it is in the best posi-
tion to consider all the circumstances (R. v.
Challenging a statute or a government action for uncon- Menard, 2008 BCCA 521).
stitutionality requires careful and early preparation and
planning. Counsel should pay close attention to the no- (c) Provincial Court Hearings (Other Than Trials)
tice requirements, evidentiary foundation, and availabil- A provincial court hearing a preliminary in-
ity of the remedy sought. quiry is not a court of competent jurisdiction
because the court exercises only a “limited
[§6.02] Jurisdiction screening function” to “determine whether there
1. Challenges to Legislation (s. 52) is sufficient evidence to proceed to trial” (R. v.
Hynes, 2001 SCC 82). Likewise, a provincial
An inferior court (e.g. the Provincial Court of BC) court judge presiding over a judicial interim re-
or administrative tribunal may decide that a law is lease (bail) hearing is not a court of competent
inconsistent with the Charter, but it is only able to jurisdiction (Menard).
use that determination in resolving the matter be-
fore it (i.e. it cannot make a formal declaration of (d) Administrative Tribunals
invalidity). Only superior courts (e.g. the Supreme A tribunal that can decide questions of law will
Court of BC) have jurisdiction to invalidate legisla- be a court of competent jurisdiction, unless that
tion (R. v. Lloyd, 2016 SCC 13; Nova Scotia (Work- power has been removed in the enabling legis-
ers’ Compensation Board) v. Martin, 2003 SCC lation. Whether a tribunal can grant a particular
54). remedy is a question of whether the remedy ac-
cords with the tribunal’s mandate and function
(R. v. Conway, 2010 SCC 22).
1 Gordon S. Comer and Drew J. Beesley revised this chapter in [§6.03] Notice and Timing
December 2020. Previously written and revised by M. Joyce
DeWitt-Van Oosten (2004–2006, 2008, 2010 and 2016); Oliver Anyone challenging the constitutional validity or ap-
Butterfield (2001–2003); Ravi R. Hira (1998 and 1999); David
M. Towill (1998); Andrew G. Strang (1997); and William B.
plicability of legislation, or seeking a s. 24(1) Charter
Smart (1995 and 1996). remedy, must give at least 14 days’ notice to the Attor-

Criminal Procedure
 78
neys General of British Columbia and of Canada (Con- cant may not, however, rely on a breach of the
stitutional Question Act (the “CQA”) s. 8). rights of a co-accused or accomplice (R. v. Ed-
wards, [1996] 1 S.C.R. 128; R. v. Hyatt, 2003
Formal notice of an application to exclude evidence un-
BCCA 27).
der s. 24(2) is not required under the CQA. The prosecu-
tion, however, must still be given reasonable notice of (a) Grounds for Private Interest Standing
the intention to seek exclusion, with particulars. This
There must be a causal connection between the
notice should occur before the evidence is tendered, to
impugned law or state action and the impact on
ensure a fair and efficient process (R. v. Kutynec (1992),
the accused’s Charter right. An uncertain or
70 C.C.C. (3d) 289 (Ont. C.A.); R. v. Bhander, 2010
hypothetical connection will not suffice (Blen-
BCSC 1980).
coe v. British Columbia (Human Rights Com-
Where sufficient notice is not provided, the usual reme- mission), 2000 SCC 44).
dy is for the court to grant the Crown an adjournment. In
Standing may also be granted for anticipated
exceptional circumstances, the court may refuse to hear
breaches in order to prevent harm, if the appli-
the application (R. v. Loveman (1992), 71 C.C.C. (3d)
cant can establish the threat of a probable future
123 (Ont. C.A.)).
violation (United States of America v. Kwok,
The evidentiary basis for Charter breaches must be laid 2001 SCC 18).
either in a pre-trial hearing or at trial. It is only in excep-
(b) Private Interest Standing to Argue a Breach of
tional cases that a Charter application can be brought for
s. 8 Privacy Interests
the first time on appeal. Appellate courts are reluctant to
make Charter rulings without an evidentiary foundation Section 8 protects against unreasonable search
(R. v. Lilgert, 2014 BCCA 493). and seizure (discussed at §6.11). To establish
standing, the applicant must have a “reasonable
[§6.04] Standing expectation of privacy” in the place searched or
the item seized. Whether an accused has a rea-
Applicants must be granted standing before they can sonable expectation of privacy is determined on
seek Charter remedies. There are two types of standing: the totality of the circumstances, including:
“private interest” or “public interest.” Either category
entitles a litigant to challenge the constitutionality of (i) whether the accused owned, or had pos-
legislation under s. 52, but only those granted private session or control of the property or place
interest standing may seek a s. 24 remedy (R. v. Fergu- searched;
son, 2008 SCC 6). (ii) historical use of the place searched; and
1. Public Interest Standing (iii) the existence of a subjective expectation
Those not directly affected by the law may be of privacy (Edwards; see also R. v.
granted public interest standing if they establish: Tessling, 2004 SCC 67; R. v. Patrick,
2009 SCC 17).
(a) there is a serious justiciable issue (with re-
In Edwards, the appellant had no privacy inter-
spect to the validity of the legislation or ad-
est to challenge the admissibility of drugs that
ministrative action); were found in his girlfriend’s apartment be-
(b) they have a real stake or genuine interest in cause he was a visitor who only stayed over oc-
the validity of the legislation; and casionally. Similarly, two accused who claimed
to be babysitters were denied standing to chal-
(c) the litigation is a reasonable and effective way lenge a search warrant because they did not
to set the issue before the court (Canada (AG) have a reasonable expectation of privacy in the
v. Downtown Eastside Sex Workers United residence (R. v. Khuc, 2000 BCCA 20).
Against Violence Society, 2012 SCC 45).
When information is seized from electronic de-
Any accused, including a corporation, may chal- vices, and that information may exist in the
lenge the constitutionality of the charging statute cloud or servers globally, it is challenging to
because “no one can be convicted of an offence un- describe the place of the search or location of
der an unconstitutional law” (R. v. Big M Drug the seized item. The courts have therefore fo-
Mart, [1985] 1 S.C.R. 295). cused on the nature of the seized information:
2. Private Interest Standing the claimant must have a direct interest in the
seized material and an objectively reasonable
An applicant whose rights have been directly af- expectation it would be private (R. v. Marakah,
fected by the unconstitutional law or state conduct 2017 SCC 59).
may be granted private interest standing. An appli-

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 79
For example, Marakah sent text messages about look to the proportionality between the effects of
firearms to an accomplice. Police seized that the impugned provision and the importance of the
accomplice’s cell phone and extracted the mes- objective. In R. v Sharpe, 2001 SCC 2, the test was
sages, without a warrant. The court ruled that described this way:
Marakah had a reasonable expectation of priva- . . . The goal must be pressing and substantial, and
cy in the messages and should have been grant- the law enacted to achieve that goal must be pro-
ed standing to seek their exclusion, because text portionate in the sense of furthering the goal, being
messages can reveal personal information, a carefully tailored to avoid excessive impairment of
sender’s objectively reasonable expectation of the right, and productive of benefits that outweigh
privacy may endure even after they are sent, the detriment. . .
and control over the information is not lost
Three general principles guide the s. 1 analysis:
simply because another person can access it.
(a) The test “must be applied flexibly,” consider-
[§6.05] Unconstitutional Legislation (s. 52) ing “the factual and social context of each
case” (RJR-MacDonald Inc. v. Canada (AG),
When a court finds a law inconsistent with the Charter, [1995] 3 S.C.R. 199).
it must determine the extent of the inconsistency and the
(b) Common sense and inferential reasoning may
most appropriate judicial response to remedy it (R. v.
supplement the evidence tendered in support
Schachter, [1992] 2 S.C.R. 679).
of justification (Sharpe).
1. Remedies
(c) The Charter does not demand perfection. The
Remedies for unconstitutional laws include: legislature need not adopt the least restrictive
means of achieving its objective. It is suffi-
(a) striking down the provision in its entirety;
cient if “the means adopted fall within a range
(b) “severing”—declaring the inconsistent portion of reasonable solutions to the problem con-
of the law invalid; fronted” (Sharpe).
(c) “reading in”—inserting what the statute For a discussion of how these principles are ap-
wrongly excludes or omits; and plied, see Canada (Attorney General) v. Bedford,
2013 SCC 72 and Carter v. Canada (Attorney Gen-
(d) “reading down”—shrinking the legislative
eral), 2015 SCC 5.
reach of the statute to what is permissible.
Courts may grant a temporary suspension of a dec- [§6.06] Unconstitutional State Conduct
laration of invalidity in order to give the legislature (s. 24)
an opportunity to address the issue with new legis-
lation. Such suspensions should rarely be granted, Subsection 24(1) gives broad discretion to provide rem-
“only when an identifiable public interest, grounded edies for unconstitutional state action. Courts take a pur-
in the Constitution, is endangered by an immediate posive approach to this remedial provision in order to
declaration to such an extent that it outweighs the fashion appropriate, effective and responsive remedies
harmful impacts of delaying the declaration’s ef- that promote the purpose of the right being protected (R.
fect” (Ontario (Attorney General) v. G, 2020 SCC v. 97649 Ontario Inc., 2001 SCC 81; Doucet-Boudreau
38). In such cases, under s. 24(1), courts may grant v. Nova Scotia (Minister of Education), 2003 SCC 62).
individual exemptions from compliance with the
Examples of s. 24(1) remedies include:
temporarily valid law.
2. Section 1 Analysis • a reduction in sentence;
• the exclusion of evidence;
If the applicant establishes that the legislation is in-
consistent with a Charter right or freedom, the bur- • a declaration of a mistrial;
den falls on the Crown to prove under s. 1 of the • an award of costs against the Crown; and
Charter that the objective of the legislation is “of
sufficient importance to warrant overriding a consti- • a judicial stay of proceedings.
tutionally protected right or freedom,” and that the An accused is not entitled to a Charter hearing as of
infringement is “a reasonable limit prescribed by right. Counsel must first provide the court with a sum-
law as can be demonstrably justified in a free and mary of the basis for the application and the anticipated
democratic society” (R. v Oakes, [1986] 1 S.C.R. evidence (R. v. Feldman (1994), 91 C.C.C. (3d) 256).
103). This requires the means to be rationally con- Where this summary does not provide a basis for a rem-
nected to the objective and to impair the right or edy, the court may decline to hear the application (R. v.
freedom as little as possible. Finally, the court will

Criminal Procedure
 80
Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.); R. v. ety’s confidence in the justice system. There are three
Lising, 2005 SCC 66). lines of inquiry:
Normally the court will hear the evidence relating to the (a) the seriousness of the state conduct;
alleged breach on a voir dire, and then rule on the issue.
Often the parties will agree that the evidence taken in the (b) the impact of the breach on the accused’s inter-
voir dire can be admitted (as appropriate) into the trial ests; and
proper. (c) society’s interest in an adjudication on the merits
Counsel should be cautious of presenting evidence on a (R. v. Grant, 2009 SCC 32).
voir dire in summary form, or by an agreed statement of On the first question, the more severe and deliberate the
facts, as doing so may leave important considerations conduct, the more a court will want to dissociate itself
unexplored: from it by excluding the evidence. On the second ques-
. . . Without the benefit of direct examination and tion, the court evaluates the extent to which the breach
cross-examination of witnesses, there is a very real risk undermined the Charter-protected interests. More seri-
of prejudice to the accused. The practice of finding ous incursions carry the greatest risk that admission will
guilt or innocence on an agreed statement of facts bring the administration of justice into disrepute. On the
should be discouraged except where the facts are such third question, the court considers whether the truth-
that viva voce evidence would not have the potential of seeking function of the criminal trial process is better
affecting the outcome (R. v. Leng, 1992 CanLII 177 served by admitting or excluding the evidence, having
(B.C.C.A.)). regard to the reliability of the evidence and its im-
portance to the Crown’s case.
The applicant bears the legal burden of persuading the
court, on a balance of probabilities, that the applicant’s There is no automatic exclusionary rule. Each case must
Charter right was infringed. The applicant also bears the be assessed independently in light of all the circum-
evidentiary burden of presenting evidence in support of stances under the s. 24(2) framework.
the alleged breach, unless the breach arises from the Evidence may also be excluded pursuant to s. 24(1) if
Crown’s case alone. For certain issues, however, the the evidence was obtained lawfully but admitting it
burden shifts to the Crown, such as the question of would result in an unfair trial or otherwise undermine
whether the accused would not have acted differently the integrity of the justice system (R. v. White, [1999] 2
had the right to counsel not been infringed (R. v. Bartle, S.C.R. 417). Exclusion of evidence under s. 24(1) is only
[1994] 3 S.C.R. 173). available “where a less intrusive remedy cannot be fash-
Courts will not permit “collateral attacks” on court or ioned to safeguard the fairness of the trial process and
administrative orders (such as a Charter challenge) ex- the integrity of the justice system” (R. v. Bjelland, 2009
cept in proceedings “whose specific object is the rever- SCC 38).
sal, variation or nullification of the order” (R. v. Bird,
2019 SCC 7). [§6.08] Section 7 Rights
Once the Charter breach is established, the question of Section 7, which guarantees both substantive and proce-
whether the matter can be “saved” under s. 1 will be de- dural fairness, is a source of diverse Charter applica-
termined. Evidence relating to this line of inquiry is tions. It contains broad language protecting life, liberty,
sometimes tendered after the court has ruled on whether and security of the person, and the right not to be de-
there has been a Charter breach. prived of those rights except in accordance with the
principles of fundamental justice. These rights protect
[§6.07] Exclusion of Evidence physical and psychological integrity, as well as the abil-
ity to make important and fundamental life choices
Applications to exclude evidence based on Charter (Carter and Blencoe, supra).
breaches are normally brought under s. 24(2). The appli-
cant must show the evidence was obtained in a manner 1. Vague or Overbroad Legislation
that infringed rights under the Charter, where the admis- Legislation which is vague or overbroad can be
sion of that evidence would bring the administration of challenged under s. 7 as offending principles of
justice into disrepute. fundamental justice. Laws must neither be so lack-
Once a breach has been established, the analysis moves ing in precision that they fail to give guidance for
to the question of exclusion, and the applicant must es- legal debate (vagueness), nor too sweeping in rela-
tablish that the admission of the impugned evidence tion to the objective (overbreadth). Nor can laws be
would bring the administration of justice into disrepute. arbitrary (having no connection between the pur-
pose and effect of the law) or grossly disproportion-
A court hearing an application for exclusion must assess ate (where the seriousness of the deprivation is to-
and balance the effect of admitting the evidence on soci- tally out of sync with the objective of the law) (Bed-

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 81
ford; Carter). Vague or overbroad laws can some- (c) privileged; or
times be read down by severing the offending por-
tions (R. v. Hall, 2002 SCC 64; Schachter v. Cana- (d) otherwise prohibited by law (R. v. O’Connor,
da, [1992] 2 S.C.R. 679). [1995] 4 S.C.R. 411).
2. Abuse of Process The Crown has a continuing duty to disclose all rel-
evant information that it has in its control or posses-
Abuse of process applications are brought under sion. This obligation applies to both inculpatory and
s. 7 because life, liberty, or security of the person exculpatory evidence. Relevance is defined in terms
must not be deprived through state conduct that is of the information’s usefulness to the accused; it
oppressive or vexatious (R. v. O’Connor, [1995] 4 does not matter whether the prosecution plans on
S.C.R. 411). tendering the evidence at trial. Information is dis-
An abuse of process may arise from state conduct closable if it can reasonably be used by the accused
that either: in meeting the Crown’s case, advancing a defence,
or making a decision about the conduct of the de-
(a) compromises trial fairness (i.e. causing irrep- fence. When in doubt, the Crown must err on the
arable damage to the ability to make full an- side of inclusion (R. v. Stinchcombe, [1991] 3
swer and defence) (the “main” category); or S.C.R. 326).
(b) risks undermining the integrity of the judicial Defence counsel must be diligent in pursuing dis-
process (the “residual” category) (R. v. Ba- closure from the Crown: “A lack of due diligence is
bos, 2014 SCC 16). a significant factor in determining whether the
Crown’s non-disclosure affected the fairness of the
Regardless of the category, a judicial stay for abuse trial process” (R. v. Dixon, [1998] 1 S.C.R. 244).
of process is only available where:
The duty to disclose includes an obligation to pre-
(a) the prejudice caused by the abuse will be serve relevant evidence. Evidence which has been
manifested, perpetuated or aggravated inadvertently lost or destroyed, however, does not
through the conduct of the trial, or by its out- automatically result in a finding of a Charter
come; breach. The test is whether the evidence was lost or
(b) there is no other remedy available that is rea- destroyed due to unacceptable negligence, having
regard to:
sonably capable of removing that prejudice;
and (a) whether the Crown (or police) took reasona-
ble steps to preserve the evidence; and
(c) the balance of interests favours granting a
stay over society’s interests in a final deci- (b) the perceived relevance of the evidence at the
sion on the merits. time (R. v. La, [1997] 2 S.C.R. 680).
With the “main” category, the third stage of the Crown counsel have a duty to make reasonable in-
analysis is only reached where uncertainty about the quiries when put on notice of potentially relevant
appropriateness of a stay of proceedings remains af- material in the hands of the police or other Crown
ter the first two stages. With the “residual” catego- entities (R. v. McNeil, 2009 SCC 3; David Layton,
ry, the third stage is always considered (Babos; R. v. Ethics and Criminal Law, 2nd ed. (Irwin Law) at
Bacon, 2020 BCCA 140). A judicial stay is “the 621). The Crown’s discretion in this regard is not
most sweeping and drastic remedy in the arsenal of reviewable by the court, unless the information is
remedies” (R. v. Erickson, 1984 CanLII 527 obviously relevant. Instead, the defence must bring
(BCCA)) and is therefore reserved only for the an O’Connor application for the information (R. v.
“clearest of cases” (R. v. Regan, 2002 SCC 12). Nicholson, 2015 BCSC 772).
3. Disclosure Third-party records which come into the possession
of the Crown are generally disclosable, subject to
It is a principle of fundamental justice that a person
the Stinchcombe principles. An exception exists for
charged with an offence has the right to make full
proceedings for sexual offences, where disclosure is
answer and defence. The Crown’s duty to provide
governed by ss. 278.1–278.91 of the Criminal Code
full, fair, and timely disclosure flows from this
(see R. v. Mills, [1999] 3 S.C.R. 668). Under this
right (R. v. Carosella, [1997] 1 S.C.R. 80). The
statutory regime, a court must determine that the
Crown must disclose all information unless it is:
records are likely relevant to an issue at trial or the
(a) beyond the control of the prosecution; competence of a witness to testify. If so, the court
must also determine whether, amongst other things,
(b) clearly irrelevant; the need for disclosure to make full answer and de-

Criminal Procedure
 82
fence outweighs the detrimental impact on privacy. justice (R. v. L.J.H., [1997] 120 C.C.C. (3d) 88
For offences not governed by this statutory regime, (M.B.C.A.)). It is insufficient to merely establish
a similar balancing process is provided for in that evidence is missing or no longer available. To
O’Connor (see also McNeil; R. v. Quesnelle, 2014 establish a breach, the accused must show the miss-
SCC 46). ing evidence would have materially assisted their
defence and therefore caused actual prejudice: R. v.
Remedies available for a breach of an accused’s
A.(D.) (1993), 76 C.C.C. (3d) 1 (Ont. C.A.). The
right to disclosure include:
prejudice must be “of such magnitude and im-
• an order for disclosure of the information; portance that it amounts to a deprivation of the op-
portunity to make full answer and defence” (R. v.
• an adjournment of the trial for further disclo- Leuenberger, 2014 BCCA 156).
sure (possibly with an order for costs);
Where the accused is seeking a judicial stay, the s. 7
• an order for a new trial where disclosure is hearing should be heard after all the evidence is be-
made after the verdict has been entered (R. v. fore the court. Judges cannot assess trial fairness or
Illes, 2008 SCC 57); or the ability to make full answer and defence in an
evidentiary vacuum (R. v. La, [1997] 2 S.C.R. 680).
• a judicial stay of proceedings.
In determining the appropriate remedy, the court [§6.09] Rowbotham Applications (s. 7 and
will balance the right of the accused to a fair trial s. 11(d))
with the interest of society in the efficient admin-
istration of justice, and grant the least severe reme- The courts have an interest in ensuring that an unrepre-
dy that will cure the prejudice to the accused. A sented accused has a fair trial. Where the absence of de-
stay of proceedings will only be imposed in the fence counsel is a barrier to a fair trial, the courts will
clearest of cases, either where no alternative remedy explore every reasonable way to address the issue.
will cure the prejudice to the accused to make full The Charter does not expressly guarantee the right of an
answer and defence, or irreparable prejudice would indigent accused to be provided with state-funded coun-
be caused to the integrity of the judicial system (R. sel. However, in cases where provincial legal aid is de-
v. Taillefer, 2003 SCC 70; Bjelland). nied, ss. 7 and 11(d) require funded counsel to be pro-
4. Pre-Charge Delay vided if the accused wants legal representation but can-
not afford a lawyer, and representation of the accused is
Pre-charge delay which results in demonstrated essential to a fair trial. A Charter application by the ac-
prejudice to the accused’s fair trial rights or cused for the appointment of funded counsel is called a
amounting to an abuse of process, can be a breach “Rowbotham Application,” after the leading case (R. v.
of s. 7 (see dissent of Hoegg J.A. in R. v. Hunt, Rowbotham, [1988] 41 C.C.C. (3d) 1 (O.N.C.A.)).
2016 NLCA 61, aff’d 2017 SCC 25). It is not the
length of the delay that is at issue, but its effect. The A Rowbotham application will be granted only in excep-
accused must establish that they suffered actual or tional cases. The factors a court may consider include:
substantial prejudice, that: 1. the accused’s financial situation;
• compromised trial fairness affecting the right to 2. the complexity of the legal and factual issues;
make a full answer and defence—e.g. lost or and
degraded evidence, missing witnesses, loss of
memory; or 3. the likelihood of imprisonment (R. v. Crichton,
2015 BCCA 138).
• risks undermining the integrity of the judicial If the application is successful, the judge will direct a
process—e.g. egregious, inexcusable inaction stay of proceedings until the government provides funds
on the part of the police or Crown, or serious for counsel. Such an order may sometimes result in the
state-imposed psychological stress (Mills v. The Crown discontinuing the prosecution. The Crown has a
Queen, [1986] 1 S.C.R. 863; see also Blencoe). right of appeal from the stay of proceedings.
The usual remedy for pre-charge delay is a stay of The appointment of counsel can also be made pursuant
proceedings (R. v. Underwood, 2008 ABCA 263). to a provision of the Criminal Code, such as at a fitness
Other remedies are possible, such as admitting de- hearing (s. 672.24), for the cross-examination of certain
fence evidence or disallowing Crown evidence. witness (s. 486.3), or in proceedings at the Court of Ap-
To warrant a judicial stay, the pre-charge delay peal (s. 684).
must so adversely affect the fairness of the trial or
the accused’s ability to make full answer and de-
fence that it offends the principles of fundamental

Criminal Procedure
 83
[§6.10] Effective Assistance of Counsel (s. 7 1. Authorized by Law
and s. 11(d)) Examples of statutory provisions that authorize
searches are s. 487(1) of the Criminal Code and
The right to the “effective assistance of counsel” is a
s. 11 of the Controlled Drug and Substances Act,
principle of fundamental justice under ss. 7 and 11(d) of
both of which allow for the issuance of a search
the Charter. A convicted offender can be granted a new
warrant. They also specifically authorize warrant-
trial on appeal where ineffective representation by de-
less searches in exigent circumstances.
fence counsel results in a miscarriage of justice (R. v.
G.B.D., 2000 SCC 22). The police also have common law search powers,
including the power to search incident to a lawful
The offender must substantiate the alleged ineffective
arrest, and the power to detain and search where
assistance with evidence establishing that:
there are reasonable grounds to suspect that the per-
• counsel’s acts or omissions constituted incompe- son is connected to a particular crime and detention
tence (the “performance component”); and is necessary to investigate that crime. In the latter
circumstances, if there are reasonable grounds to
• the ineffective representation resulted in prejudice
believe that the officer’s safety or the safety of oth-
causing a miscarriage of justice (the “prejudice
ers is at risk, a protective “pat-down” search is war-
component”).
ranted to prevent avoidable harm (R. v. MacDonald,
In determining competence, the conduct of counsel is 2014 SCC 3; R. v. Patrick, 2017 BCCA 57).
assessed against a reasonableness standard and there is a
Not all electronic communications attract a reason-
strong presumption in favour of competence. Reasonable
able expectation of privacy (consider R. v.
minds may disagree on strategies to employ in conduct-
Marakah, 2017 SCC 59, discussed above at
ing a defence and it is not enough to simply say, in hind-
§6.04(2)). For example, it is not objectively reason-
sight, that counsel should have handled the case differ-
able to expect that a threatening text message would
ently (G.B.D.; R. v. Trejo, 2020 BCCA 302; R. v. Baylis,
not be turned over to police (R. v. Pelucco, 2015
2015 ONCA 477).
BCCA 370). See also R. v. Mills, 2019 SCC 22,
In 2013, the Court of Appeal for British Columbia issued where the relationship between the communicating
a Criminal Practice Directive regarding appeals of this parties (or rather, the lack thereof) was determina-
nature, requiring, among other things, that trial counsel tive. Mills communicated online with a police of-
be notified. This gives trial counsel an opportunity to ficer who was posing as a child. The court held that
respond to the allegations of incompetence. See Ineffec- privacy cannot be reasonably expected by an adult
tive Assistance of Trial Counsel (Criminal Practice Di- who sends online messages to an unknown child.
rective, 12 November 2013).
(a) Warranted Searches
[§6.11] Search and Seizure (s. 8) Warranted searches can be attacked by focusing
on defects on the face of the warrant or on
Everyone has the right to be secure against unreasonable problems with how it was obtained.
search and seizure (s. 8). The right protects information.
The defence may try to show that there were in-
Accordingly, police are required, for example, to obtain
sufficient grounds for the warrant to be issued
a warrant to gather subscriber information for internet
(R. v. Williams (1987), 38 C.C.C. (3d) 319
users (R. v. Spencer, 2014 SCC 43). When real evidence
(Y.C.A.)). The defence can challenge the affi-
(physical evidence) is tendered at trial, its admission is
davit prepared by the police setting out the
frequently challenged under s. 8 of the Charter. If suc-
grounds for the warrant (the “Information to
cessful, the evidence can be excluded under s. 24(2).
Obtain” or “ITO”). Leave of the court is re-
A search will be reasonable only if: quired to cross-examine the ITO affiant (R. v.
Lising, 2005 SCC 66). Insufficient grounds for
• it is authorized at law (pursuant to statute, the
the issuance of a search warrant may result in
common law or a prior judicial authorization);
the warrant being ruled invalid, thereby estab-
• it is conducted in a reasonable manner, namely, it lishing a s. 8 breach.
is carried out in accordance with the procedural
Material non-disclosure by the affiant, or delib-
and substantive requirements the law provides;
erate misrepresentation, may also invalidate a
and
warrant. However, the mere presence of non-
• the scope of the search is limited to what is au- disclosure or misinformation is not fatal. Ra-
thorized (R. v. Caslake, [1998] 1 S.C.R. 51). ther, the reviewing court must ask whether, set-
ting aside the misinformation, there was a suffi-
cient basis to issue the warrant (R. v. Bisson,

Criminal Procedure
 84
[1994] 3 S.C.R. 1097; R. v. Garofoli, [1990] 2 and testified at the trial of the accused. The accused
S.C.R. 1421). sought the exclusion of this testimony on the
grounds that it was the product of an illegal search.
(b) Warrantless Searches
The court found there was no temporal link given
Warrantless searches are prima facie unreason- the many intervening events between the search and
able. The burden thus shifts to the Crown to the testimony, and the causal connection between
demonstrate, on a balance of probabilities, that the illegal search and the witness’s decision to testi-
the search was reasonable (Hunter. v. Southam fy was extremely tenuous.
Inc., [1984] 2 S.C.R. 145). The same principle
4. Searches of Law Offices
applies to the seizure of items that fall outside
of a search warrant’s express parameters (R. v. Searches of law offices and seizure from lawyers
Mandziak, 2014 BCCA 41). For example, a must comply with a strict regime established to pro-
computer can only be searched as part of a war- tect the privacy interests of lawyers and their cli-
ranted search when the warrant specifically al- ents. Solicitor-client privilege is a principle of fun-
lows it to be done (R. v. Vu, 2013 SCC 60). damental justice protected by s. 7, and the privilege
is prima facie at risk in this situation. The seized
2. Conducted in a Reasonable Manner
material must be sealed until privilege can be as-
Even if a search is found to be authorized by law, it serted and the issue adjudicated by the court (see
must also be conducted in a reasonable manner. Lavallee v. Canada (Attorney General), 2002 SCC
61).
For example, “strip searches” or searches of bodily
cavities, even when incident to a lawful arrest, must The Law Society of British Columbia has issued
not be carried out routinely. The manner of the guidelines on its website for law office search war-
search must be reasonable, namely: rants to help ensure privilege is protected. If client
files become the subject of a search or seizure by
(a) the search should be carried out in a police police or other authorities, you should assert privi-
station, in privacy; lege promptly and, where possible, seal the materi-
(b) the search should be supervised by a senior als in packages. You should also contact the Law
officer; Society immediately.
(c) police must ensure the health and safety of the [§6.12] Arbitrary Detention (s. 9)
suspect; and
(d) the search should involve minimal force (R. v. Section 9 of the Charter prohibits arbitrary detention. It
Golden, 2001 SCC 83; R. v. Saeed, 2016 SCC protects individuals from unjustified state detention,
usually by police.
24).
An arrest involves seizing or touching a person’s body
For a further example, police may search a cell
with a view to detaining that individual, or uttering
phone that was seized incidentally to a lawful arrest
words to that effect to a person who submits to an arrest-
only to the extent that the search is reasonably nec-
ing officer. It is the substance of what occurred that mat-
essary to achieve some valid purpose connected to
ters, not the precise form of words used by the officer
the arrest. Police must also take detailed notes of
(R. v. Latimer, [1997] 1 S.C.R. 217).
the search (R. v. Fearon, 2014 SCC 77). Failing
this, the search will not have been conducted in a Detention, for Charter purposes, can arise in three ways:
reasonable manner.
1. physical restraint;
3. Nexus Between the Breach and the Evidence 2. psychological restraint (with legal compulsion)—
where a state authority assumes control over the
The applicant must show that the evidence was “ob-
movement of a person through a demand or direc-
tained in a manner that infringed or denied” a Char-
tion which may have significant legal conse-
ter right. As such, there must be a causal, temporal
quences (e.g. a demand for a breath sample); or
or contextual connection between the Charter
breach and the evidence (R. v. Wittwer, 2008 SCC 3. psychological restraint (without legal compul-
33). sion)—where a person interacting with police ac-
quiesces in a deprivation of their liberty, reasona-
In R. v. Goldhart, [1996] 2 S.C.R. 463, for example,
bly believing that they have no choice but to com-
the police searched a house and discovered a mari-
ply with the police direction or demand and that
juana grow operation. The house had three occu-
they are not free to leave (R. v. Therens, [1985] 1
pants, including the accused, and all three were ar-
S.C.R. 613; R. v. Grant, 2009 SCC 32).
rested. One occupant subsequently pleaded guilty

Criminal Procedure
 85
To establish a detention, the accused must demonstrate is known. Where the offence under investigation be-
an element of compulsion or coercion (Therens, supra). comes significantly more serious, the detainee should be
Not every conversation or physical interaction between advised of this change, and again be afforded both com-
police and a suspect will amount to a detention. There ponents of the right to counsel (R. v. Evans, [1991] 1
must be an element of significant physical or psycholog- S.C.R. 869; R. v. Sinclair, 2010 SCC 35). Where the
ical restraint at the hands of the state (R. v. Suberu, 2009 change arises out of, or is easily envisaged as part of the
SCC 33). Detention includes situations where the indi- initial investigation, a new s. 10(b) advisement may not
vidual is obligated to comply or where a reasonable per- be required (R. v. Boomer, 2001 BCCA 220; R. v.
son in that individual’s place would feel they were obli- O’Donnell, 1991 CanLII 2695 (N.B.C.A.)).
gated to comply (R. v. Le, 2019 SCC 34).
The prosecution bears the burden of establishing that the
accused waived the right to counsel (Bartle, supra). The
[§6.13] Right to Counsel (s. 10(b)) waiver must be voluntary, clear, informed, and unequiv-
ocal (Prosper). Waivers will be scrutinized closely
Everyone detained or arrested has the right to retain and
where the accused is vulnerable because of age, mental
instruct counsel without delay, and to be promptly in-
capacity or extreme intoxication. If an accused asserts
formed of that right (s. 10(b)).
that right but then waives it, police must again advise the
The purpose of s. 10(b) is to ensure that those under in- accused of the right to contact counsel (Prosper; R. v.
vestigation and under the control of the state are given a Smith, 1999 CanLII 3713 (O.N.C.A.)).
meaningful opportunity to seek legal advice on issues
The right to counsel does not include a right to have a
such as disclosure, judicial interim release and the right
lawyer present during police questioning (Sinclair, su-
to silence (R. v. Bartle, [1994] 3 S.C.R. 173). The police
pra).
have an “informational duty” to advise the person in cus-
tody of the right to counsel, that immediate and free le- When a denial of the right to counsel occurs, statements
gal advice can be provided, and how to access the advice or confessions obtained by police from are likely to be
(R. v. Brydges, [1990] 1 S.C.R. 190). excluded pursuant to s. 24(2), because their admission
would adversely impact trial fairness (R. v. Elshaw,
Police also have “implementation duties” that are only
[1991] 3 S.C.R. 24; Evans).
triggered after the detainee asserts the right to counsel.
Police must provide the detainee with a reasonable op-
[§6.14] Post-Charge Delay (s. 11(b))
portunity to exercise that right, except in urgent and
dangerous circumstances. Police must also refrain from
Everyone charged with an offence has the right to be
eliciting evidence from the detainee until the right has
tried within a reasonable time (s. 11(b)). A judicial stay
been exercised (R. v. Prosper, [1994] 3 S.C.R. 236;
of proceedings is the only remedy available for a breach
Bartle).
of this right.
If the accused is unable to reach their lawyer of choice,
These applications are usually made pre-trial, to the trial
police must give the accused a reasonable opportunity to
court, and (preferably) heard by a different judge than
consult with someone else, before they proceed to gather
the trial judge (R. v. Fagan, 1998 CanLII 5018
evidence from the accused (R. v. McCrimmon, 2010
(B.C.C.A.)). The motion should be supported by either
SCC 36).
an agreed statement of facts or an affidavit setting out
Detainees who assert the right to counsel must be dili- the reasons for the delays, and referencing the relevant
gent in exercising it, or police may continue their inves- portions of the transcript of proceedings.
tigation (R. v. Ross, [1989] 1 S.C.R. 3; R. v. Smith,
A delay, between charge and the anticipated end of trial,
[1989] 2 S.C.R. 368). The accused should be allowed a
of more than 18 months for trials in the Provincial Court,
reasonable amount of time to consider exercising the
or more than 30 months for trials in the Superior Court,
right before questioning begins (R. v. Hollis (1992), 76
is presumptively unreasonable. Delay caused or waived
C.C.C. (3d) 421 (B.C.C.A.)). Absent evidence that the
by the defence does not count toward these limits. To
accused did not understand the right when informed of
rebut the presumption of unreasonableness, the Crown
it, the onus falls on the accused to show the accused was
must establish the presence of exceptional circumstanc-
either denied counsel or was denied the opportunity to
es, which may arise from (1) discrete, unexpected
ask (R. v. Baig, [1987] 2 S.C.R. 537). Once police
events; or (2) case complexity. If the Crown cannot rebut
properly inform a detainee of the right to counsel, the
the presumption, the delay will be found unreasonable
onus is on the detainee to assert it (R. v. Knoblauch,
and a stay of proceedings must follow. Where the delay
2018 SKCA 15; Hollis; Baig).
falls short of the presumptive ceilings, it is still open to
As s. 10(a) requires the police to provide the reasons for the accused to argue that the delay is unreasonable with-
the arrest or detention; the right to counsel can only be in the context of the case (R. v. Jordan, 2016 SCC 27).
exercised in a meaningful way if the extent of jeopardy

Criminal Procedure
 86
Section 11(b) also applies to unreasonable delay be- 1. Costs Against the Crown in Criminal
tween the conclusion of trial and when the judge renders Proceedings
a decision. Such delay is unreasonable where the trial
Costs are an available remedy under s. 24(1) in
judge took “markedly longer” than reasonably necessary
criminal proceedings for a Charter breach involving
(R. v. K.G.K., 2020 SCC 7).
prosecutorial misconduct, but not police misconduct
Finally, s. 11(b) applies to unreasonable delay between in which the Crown did not participate (R. v. Le-
conviction and sentencing. This delay, however, is con- Blanc, 1999 NSCA 170). Mere negligence by the
sidered separately from pre-trial delay using the analyti- Crown is not enough (R. v. Singh, 2016 ONCA
cal framework set out in R. v. Morin (R. v. S.C.W., 2018 108). Costs are a rare and exceptional remedy
BCCA 346). available in cases involving “a marked and unac-
ceptable departure from the reasonable standards
Section 11(b) does not apply to pre-charge delay. As
expected of the prosecution” (R. v. 974649 Ontario
discussed above, prejudice that arises from pre-charge
Inc., 2001 SCC 81).
delay is addressed under s. 7 of the Charter.
The trial court may not be the best venue to hear an
[§6.15] Cruel and Unusual Punishment application for costs where the Crown needs to be
(s. 12) able to make full answer and defence. In this situa-
tion, the procedure governing civil actions provides
Everyone has the right not to be subjected to cruel and a more appropriate framework for the application
unusual treatment or punishment (s. 12). To constitute with pleadings, discovery of the parties, and the
cruel and unusual punishment, the sentence must be discovery of documents (R. v. McGillivary (1990),
“grossly disproportionate,” meaning it is “so excessive 56 C.C.C. (3d) 304 (N.B.C.A.)).
as to outrage standards of decency” and is “abhorrent or
2. Damages for Charter Violations in Civil
intolerable” to society (R. v. Lloyd, 2016 SCC 13).
Proceedings
Several (not all) mandatory minimum sentences were Damages under s. 24(1) may be awarded in a civil
struck down in 2022 by An Act to Amend the Criminal action where the claimant demonstrates (1) that the
Code and the Controlled Drugs and Substances Act, state (police or Crown) breached their Charter
S.C. 2022, c. 15. Challenges to the constitutionality of a rights and (2) a damages award would provide just
mandatory minimum sentence would be brought under compensation or deter future breaches. If estab-
this section of the Charter. lished, the onus then shifts to the state to rebut the
claim. The state typically claims policy grounds
Courts will consider whether the minimum sentence is
(Vancouver (City) v. Ward, 2010 SCC 27). For ex-
grossly disproportionate for the offender (R. v. Nur,
ample, damages were awarded against the Crown
2015 SCC 15).
for intentionally withholding material disclosure,
The only available remedy is a declaration that the min- thus causing a miscarriage of justice (Henry v. Brit-
imum sentence is of no force and effect, due to incon- ish Columbia (Attorney General), 2015 SCC 24).
sistency with the Charter. A constitutional exemption
Damages will only be available where state conduct
under s. 24(1) is not appropriate (R. v. Ferguson, 2008
taken pursuant to law was clearly wrong, in bad
SCC 6). A reduction in sentence below the mandatory
faith, or an abuse of power. Damages are not oth-
minimum sentence, however, may be available as a rem-
erwise available for harm caused by a law that is
edy under s. 24(1) for egregious and unconstitutional
subsequently declared to be unconstitutional
state conduct (R. v. Nasogaluak, 2010 SCC 6).
(Mackin v. New Brunswick (Minister of Finance),
Section 12 only protects human beings, so corporations 2002 SCC 13).
cannot use it to challenge punishments imposed on them
(Quebec (Attorney General) v. 9147-0732 Québec inc.,
2020 SCC 32).

[§6.16] Costs or Damages

Criminal courts are courts of “competent jurisdiction” to

award costs against the Crown under s. 24(1). Only
courts hearing civil actions, however, are courts of
“competent jurisdiction” to order damages awards
against the Crown for unconstitutional conduct.

Criminal Procedure
 87
(b) the criminal justice system for young people
Chapter 7 must be separate from that of adults, since:
(i) it presumes young people are less
blameworthy than adults; and
(ii) there must be timely intervention to re-
The Youth Criminal Justice Act 1 inforce the link between the offending
behaviour and its consequences;
(c) sentencing should be meaningful in light of
the youth’s circumstances, and should re-
[§7.01] Purpose and History spect gender, ethnicity, cultural and linguis-
tic differences, including the needs of Indig-
The Youth Criminal Justice Act, S.C. 2002, c. 1 (the enous youth and youth with special needs;
“YCJA”) was enacted on April 1, 2003. It replaced the and
Young Offenders Act, R.S.C. 1985, c. Y-1 (the “YOA”). (d) a young person charged with a criminal of-
The YCJA enacted some changes, compared to the YOA: fence must be given the right to be heard
(a) it provides a broader range of sentences; and to meaningfully participate at every
stage of the decision-making process (this
(b) it narrows the circumstances in which a young principle reflects Canada’s ratification of the
person may be detained pending trial; United Nations Convention on the Rights of
(c) it strictly limits the availability of custodial sen- the Child, as noted in the Preamble).
tences; and Lawyers who represent young people must under-
(d) it eliminates applications to transfer young peo- stand and start from these guiding principles. For
ple to trial in adult court, by instituting sentenc- resources to assist in practice, see Chapter 1.
ing hearings to determine whether an adult sen-
tence should be imposed. 2. Overview of 2019 Amendments
Amendments to the YCJA came into force in 2019.
1. Principles and Interpretation The amendments affect administration of justice of-
The YCJA begins with a strong statement of the fences, which are offences against the integrity of
values underlying our youth justice system; namely, the justice system, such as failure to appear in
accountability, respect, responsibility and fairness. court. The amendments encourage alternatives to
charges for these offences, and narrow the availa-
The YCJA Preamble also sets moral and legal bility of custodial sentences for them.
standards for the protection and care of young peo-
ple in Canada, and how they should be treated by The amendments also restrict the conditions that
the youth justice system. The Preamble recognizes can be imposed on young persons at bail or sen-
the United Nations Convention on the Rights of the tencing, to ensure conditions imposed on youth are
Child, which was ratified by Canada in 1991 and reasonable in the circumstances and necessary for
guarantees enhanced procedural protection for criminal justice purposes.
young people. Some of the amendments reduce delay. This is con-
Section 2 defines terms used throughout the YCJA, sistent with the Supreme Court of Canada’s direc-
including new definitions introduced in 2012, such tion in R. v. Jordan, 2016 SCC 27, to review crimi-
as “serious offence,” “violent offence” and “serious nal rules and procedures to promote timely justice
violent offence.” and fair trials. As noted earlier in the Practice Ma-
terial: Criminal, the decision in R. v. Jordan set out
Section 3 sets out the guiding principles of the ceilings beyond which delay is presumptively un-
YCJA, which include the following: reasonable. In R. v. K.J.M., 2019 SCC 55, the court
(a) the youth criminal justice system is intended confirmed that those timeframes apply to youth
to protect the public by holding young peo- cases, and declined to make them shorter for youth.
ple accountable and promoting their rehabil-
itation and reintegration; [§7.02] Jurisdiction
The YCJA, s. 2, defines a “young person” as being at
1
Derek Wiebe and Lionel Farmer kindly revised this chapter in least 12 but under 18 years of age. Persons under 12
August 2020 and November 2016. It was updated by PLTC in cannot be charged with crimes. Persons who are 12–17
2018 and 2019. Jennifer Duncan wrote this chapter in January may be tried in Youth Justice Court, a division of the BC
2004 and updated it in 2005, 2006 and 2008.
Provincial Court. Persons who are 12–17 are entitled to
Criminal Procedure
 88
free legal representation through legal aid. Accused per- lating to reviews of community sentences, if either
sons who are 18 or older go to trial in adult court. of those measures would be adequate.

Youth Justice Court hears cases involving criminal of- Extrajudicial measures by police are informal
fences under the YCJA, as well as violations of provin- (much like warnings instead of tickets for speeding
cial law under the Youth Justice Act (for provincial pros- infractions). They do not require that the young
ecutions, see §7.10). person admit guilt or accept responsibility.
Crown counsel also have some authority to use ex-
Proof of age can come from the testimony of a parent, a trajudicial measures, such as issuing a caution letter
birth certificate, a business record of a society that has rather than approving a charge.
care or control of the young person, any information the
court considers reliable, or from inferences drawn from 2. Extrajudicial Sanctions
the person’s appearance or statements made in direct or
cross-examination (s. 148). Extrajudicial measures described in s. 6 may not be
appropriate in some cases, due to the seriousness of
The YCJA prohibits the publication of any information the offence, a history of offences by the young per-
that could identify an accused or convicted young per- son, or the presence of aggravating factors. If the
son. This ban is subject to exceptions listed in s. 110, measures set out in s. 4.1(2)(b) would also not be
such as where the young person was given an adult sen- adequate, extrajudicial sanctions pursuant to ss. 10–
tence. Access to Youth Justice Court records is restrict- 12 may be appropriate, if these criteria are met:
ed, and is governed by ss. 117–129. • the accused young person accepts responsibility
for the behaviour;
[§7.03] Alternatives to Charging an Offence • the young person is informed of their right to be
represented by counsel;
Not every offence alleged to have been committed by a
young person will end up as a charge before the Youth • the Attorney General considers there is enough
Justice Court, particularly if the transgression is minor evidence to prosecute; and
and does not involve bodily harm. • the young person’s parents are informed.
As described below, under the YCJA, police must con- The victim is entitled to know the name of the
sider alternatives to forwarding a Report to Crown young person given extrajudicial sanctions.
Counsel for charge approval, and the Crown will rou-
tinely look at alternatives to charging young persons. A program of extrajudicial sanctions might include
Still, defence counsel should always ask the Crown if community service, apology and restitution, attend-
extrajudicial measures were considered. ing school, or counselling. The Justice Education
Society of BC provides information about youth
1. Extrajudicial Measures justice and extrajudicial sanctions: www.ycja.ca
/?q=youth/extrajudicial-measures/in-depth.
Section 6 of the YCJA requires a police officer in-
vestigating an offence alleged to have been com- There is a record of a young person’s compliance
mitted by a young person to consider whether other with extrajudicial sanctions. If the young person
measures would be adequate, such as the following: fails to comply, they can be prosecuted for the of-
fence. The admission the young person made in or-
• taking no further action; der to be considered for extrajudicial sanctions can-
• warning the young person or administering a not be used against the young person should the
caution; or matter proceed to trial.
• referring the young person to a community-
based agency to help them stay out of trouble. [§7.04] First Appearance
Section 4.1(1) sets out when extrajudicial measures At the first appearance on a charge in Youth Justice
are presumed to be adequate for certain administra- Court, a judge has several obligations under s. 32(1):
tion of justice offences, such as breaches of condi-
tions or of community-based youth sentences. If ex- (a) to read the charges to the young person;
trajudicial measures would not be adequate, (b) if the young person is not represented by counsel,
s. 4.1(2)(b) directs that, as an alternative to pro- to inform them of the right to retain and instruct
ceeding with a charge, an appearance notice should counsel; and
be issued under the new judicial referral hearing
process in the Criminal Code, or the youth sentence (c) if the Crown gives notice that it intends to seek
should be reviewed under the YCJA provisions re- an adult sentence, to inform the young person

Criminal Procedure
 89
that if there is a finding of guilt, the court might (s. 139). A “responsible person” who fails to meet the
impose an adult sentence. obligations required by s. 31 may also face civil liability.
Unlike in adult court, where Part XVI of the Criminal
[§7.05] Detention and Release Before Code dictates that in some circumstances the onus of
Sentencing (Bail) proof in a bail hearing may shift to the accused, in Youth
Justice Court the onus to establish that detention is nec-
Section 28 of the YCJA incorporates the bail provisions essary always remains with the Crown (s. 29(3)).
from Part XVI of the Criminal Code, with certain excep-
Section 525 of the Criminal Code requires that pre-trial
tions and modifications.
detention be reviewed by the Supreme Court 90 days
Peace officers and judges are prohibited from detaining a after the accused is first brought before the court. This
young person in custody or imposing conditions of re- provision of the Criminal Code applies to youth, except
lease as a substitute for providing proper child protec- that if a youth is being prosecuted summarily, the 90-day
tion, mental health, or other social measures (s. 28.1). time limit is reduced to 30 days by s. 30.1 of the YCJA.
Section 29(1) sets out the limited circumstances for im-
posing conditions under s. 515(4)–(4.2) of the Criminal [§7.06] Conferencing
Code on a young person:
A conference may be convened by a youth judge, pro-
(a) the condition must be necessary to ensure the
vincial director, police officer, justice of the peace, pros-
young person’s attendance in court or for the pro-
ecutor, or youth worker for the purpose of making a de-
tection or safety of the public, including any vic-
cision under the YCJA (s. 19). For instance, a conference
tim of or witness to the offence;
may be held to determine appropriate extrajudicial sanc-
(b) the condition must be reasonable, having regard tions, bail terms, or sentences. After a justice in Youth
to the circumstances of the offending act; and Justice Court has found a young person guilty of an of-
fence, a conference may be convened for recommenda-
(c) the young person must reasonably be able to
tions on sentencing (s. 41).
comply with the condition.
Section 29(2) sets out the limited circumstances for de- [§7.07] Trial
taining a young person before sentencing:
(a) the young person has been charged with 1. Venue
(i) a “serious offence” as defined in s. 2, or The trial will be before a Provincial Court judge,
unless the Crown serves notice that it will seek an
(ii) an offence other than a serious offence, but adult sentence if the young person is convicted.
the young person’s record shows a pattern
of offences or outstanding charges; and The Crown may serve notice that it will seek an
adult sentence if the young person is charged with
(b) the court has found on a balance of probabilities an offence for which the maximum available sanc-
that detention is necessary tion under the Criminal Code is two years or more,
(i) to ensure the young person attends court, and the young person is over the age of 14 (s. 64).
This notice must be served either before a plea is
(ii) for the protection and safety of the public, entered or with leave of the court. Following recent
or amendments, prosecutors do not need to consider
(iii) if release would undermine the public’s seeking adult sentences for serious violent offences
confidence in the administration of justice; or advise the court if they decide not to seek an
and adult sentence.
(c) the court is satisfied that any risks identified un- If the Crown has served notice that it will seek an
der (b) could not be addressed by imposing con- adult sentence, then the young person may access
ditions of release. all the procedural options that would be available to
an adult facing an indictable Information. Specifi-
The court must inquire whether a “responsible person” is cally, the young person may elect the mode of trial
available to care for a young person who would other- in the same way and with the same options for a tri-
wise be detained in custody (s. 31). The responsible per- al that would be available to an adult in Supreme
son must be willing and able to take care of and exercise Court, with a judge, or judge and jury, and with a
control over the young person, and the young person preliminary inquiry if the offence is punishable by
must be willing to be placed in the care of that person. A 14 years or more of imprisonment. Election as to
person who agrees to act as a “responsible person” under mode of trial is governed by s. 67 of the YCJA. Just
s. 31, and wilfully fails to comply with the undertaking as the Crown may proceed by direct indictment
required by s. 31, can be found guilty of an offence against an adult and require that the adult be tried
Criminal Procedure
 90
by judge and jury, the Crown may also require that The statement provisions do not apply to spontane-
a young person be tried by judge and jury pursuant ous statements to a peace officer or other person in
to s. 67(6), despite the young person’s election. authority if the spontaneous statements were given
before there had been a reasonable opportunity to
2. Evidence comply with the requirements of the YCJA
(s. 146(3)).
Evidence is led before a Youth Justice Court as it
would be in an adult criminal court, except con-
cerning the statements of accused young persons. [§7.08] Youth Sentences
The statements of accused young persons are gov-
erned by s. 146. The YCJA recognizes that young 1. The Purpose and Principles of Sentencing
persons are not adults: additional procedural protec-
The YCJA, s. 38, sets out the purpose and principles
tions are necessary to meet the special needs of
of youth sentencing. Also, if the youth is Indige-
young people. For the oral or written statement of a
nous, Gladue factors will apply: see §8.02(2)(e) and
young person that was given to a peace officer or
§8.02(3)(d).
person in authority to be admitted into evidence, in
addition to compliance with Charter rights upon ar- The purpose of youth sentencing is to hold the
rest or detention, the Crown must prove the follow- young person accountable by imposing just sanc-
ing: tions that have meaningful consequences and pro-
mote the young person’s rehabilitation and reinte-
• the statement was voluntary, in the common
gration into society, thereby contributing to the
law sense (s. 146(2)(a));
long-term protection of the public (s. 38(1)).
• the person taking the statement clearly ex-
Principles of youth sentencing are listed in s. 38(2):
plained to the young person, in age-appropriate
language, that the young person was under no (a) the sentence must not result in greater
obligation to make a statement (s. 146(2)(b)(i)), punishment than an adult convicted of the
that any statement made could be used in evi- same offence in similar circumstances would
dence against the young person receive;
(s. 146(2)(b)(ii)), that the young person had the
(b) the sentence must be similar to the sentences
right to consult counsel and a parent or other
imposed in the region on similar young
person (s. 146(2)(b)(iii)), and that the statement
persons found guilty of the same offence
must be made in the presence of counsel and a
committed in similar circumstances;
parent (or other person chosen by the young
person), unless the young person decided oth- (c) the sentence must be proportionate to the se-
erwise (s. 146(2)(b)(iv)); riousness of the offence and the young per-
son’s degree of responsibility for it;
• the young person was given a reasonable oppor-
tunity before making the statement to consult (d) all available alternatives to custody that are
with counsel and a parent, adult relative, or per- reasonable in the circumstances should be
son of choice, so long as that person was not a considered, with particular attention paid to
co-accused or under investigation for the same the circumstances of Indigenous youth; and
offence (s. 146(2)(c)); and
(e) subject to (c), the sentence shall be the least
• if the young person chose to consult with a per- restrictive one that is capable of achieving
son, the young person was given a reasonable the purpose in s. 38(1), be the one most likely
opportunity to make the statement in the pres- to rehabilitate and reintegrate the young per-
ence of that person (s. 146(2)(d)). son into society, and promote a sense of re-
sponsibility and acknowledgement of harm
Under s. 146(6) of the YCJA, a statement may be
done to victims and the community.
admitted into evidence despite a technical irregular-
ity, if the admission of the statement would not (e.1) if this Act provides that a youth justice court
bring into disrepute the principle that youth are enti- may impose conditions as part of the sen-
tled to enhanced procedural protection. tence, a condition may be imposed only if
Young persons may waive their rights under the (i) the condition is necessary to achieve the
YCJA and give statements without consulting any- purpose set out in s. 38(1),
one or having anyone present. The waiver must be
(ii) the young person will reasonably be
in writing, or audio- or videotaped (s. 146(4)). If
able to comply with the condition, and
the waiver is technically irregular (for example, if
the audiotape fails to record), the statement may (iii) the condition is not used as a substitute
still be admitted (s. 146(5)). for appropriate child protection, mental
health or other social measures; and
Criminal Procedure
 91
(f) subject to paragraph (c), the sentence may (c) a conditional discharge, in accordance with
have the following objectives: s. 38(2)(e.1);
(i) to denounce unlawful conduct, and (d) a fine, to a maximum of $1,000;
(ii) to deter the young person from commit- (e) an order to pay compensation or damages;
ting offences.
(f) an order to return property to another person;
Section 38(3) requires the sentencing judge to con-
(g) an order to compensate any innocent pur-
sider the degree to which the young person partici-
chaser of property where the court has made a
pated in the offence, the harm done and whether it
restitution order;
was intentional or reasonably foreseeable, any repa-
ration made by the young person, any time spent in (h) an order to compensate any person in kind or
pre-trial custody, previous findings of guilt, and any by way of personal services;
aggravating or mitigating circumstances relevant to
(i) an order to perform community service;
the purpose and principles of youth sentencing.
(j) any order of prohibition, seizure or forfeiture
Section 39(1) restricts the use of custody. The court
that may be imposed under any Act of Par-
must not impose custody unless:
liament (other than s. 161 of the Criminal
(a) the young person has been found guilty of a Code, which involves offences against per-
violent offence (defined in YCJA, s. 2); sons under the age of 16, and s. 51 of the
YCJA, which requires the court to impose a
(b) the young person has previously been found
mandatory prohibition for certain offences
guilty of an offence under s. 137 of the YCJA
involving violence, firearms or drugs);
(failure to comply with a sentence or disposi-
tion, i.e. breach of conditions) in relation to (k) probation up to two years, with conditions;
more than one sentence and, if the court is
(l) an intensive support and supervision order;
imposing a sentence for an offence under
ss. 145(2)─(5) of the Criminal Code or s. 137 (m) an order to attend a non-residential program;
of the YCJA, the young person caused harm,
(n) a custody and supervision order to a maxi-
or a risk of harm, to the safety of the public
mum of two years (unless the offence is one
in committing that offence;
for which an adult could be sentenced to life
(c) the young person is guilty of an indictable of- imprisonment, in which case the maximum is
fence for which an adult can be sentenced to three years);
imprisonment for more than two years, and
(o) for attempted murder, manslaughter and ag-
has a history that indicates a pattern of extra-
gravated sexual assault, a custody and super-
judicial sanctions or of findings of guilt; or
vision order to a maximum of three years;
(d) in exceptional cases, the court may impose a
(p) deferred custody and supervision up to six
custodial sentence if the offence is indictable
months;
and the aggravating circumstances would
make a non-custodial sentence inconsistent (q) for murder, a custody and conditional super-
with s. 38 of the YCJA. vision order (a maximum of ten years for
first-degree murder, in custody for up to six
If any of s. 39(1)(a) through (c) applies, the court
years followed by conditional supervision,
must still consider all alternatives to custody that
and a maximum of seven years for second-
are reasonable in the circumstances, and may not
degree murder, in custody for up to four years
impose custody unless no alternative would achieve
followed by conditional supervision);
the purpose and principles of sentencing (s. 39(2)).
A judge who imposes custody must give reasons (r) an intensive rehabilitative custody and super-
why a non-custodial sentence would not achieve the vision order for a maximum of two years (un-
purpose of youth sentencing, including (if applica- less the Criminal Code maximum for the of-
ble) the reasons why the case is exceptional fence is life, in which case it must not exceed
(s. 39(9)). The judge must consider a pre-sentence three years, or the offence is first-degree
report, unless it is waived (ss. 39(6) and 40). murder, in which case it must not exceed
10 years, or the offence is second-degree
2. Available Sentences murder, in which case it must not exceed sev-
en years); and
The available youth sentences are found in s. 42(2):
(s) any other conditions the court considers ap-
(a) a judicial reprimand;
propriate, in accordance with s. 38(2)(e.1).
(b) an absolute discharge;

Criminal Procedure
 92
As indicated above, all custodial sentences under custody (commonly called “closed custody”). The
the YCJA include an order for supervision of the reason for moving to closed custody is typically to
young person in the community following custody. access programs that are only available there.
A peace bond under s. 810 of the Criminal Code is Section 94 provides for the review of custodial sen-
also an available sanction for youth by virtue of tences, which can result in the Youth Justice Court
ss. 14(2) and 20(2) of the YCJA. The Youth Justice converting the sentence from custody to conditional
Court may impose a peace bond instead of impos- supervision. Section 94(1) requires that any youth
ing a sentence under s. 42(2), or may impose one at custodial sentence over one year must be reviewed
an earlier stage in proceedings, as it does not re- one year after it was imposed, and at the end of eve-
quire a finding of guilt. ry subsequent year, until its completion. If multiple
sentences were imposed, then the year starts from
the date the first sentence was imposed (s. 94(2)).
[§7.09] Appeals and Reviews Section 94(3) governs optional reviews of custodial
sentences. It permits a young person, the young per-
1. Appeals son’s parent, the Attorney General, or the provincial
Summary appeals (sentence and conviction) are director to apply for a review of the young person’s
filed in the Supreme Court. Indictable appeals are sentence. If the sentence is for less than one year,
filed in the Court of Appeal. If an Information con- the application can be made after 30 days or one-
tains both summary and indictable offences, they third of the sentence has elapsed, whichever is
can be appealed together to the Court of Appeal greater; if the sentence is for over a year, the appli-
(s. 37(6)). cation can be made after six months. The Youth
Justice Court will only review the sentence where
The YCJA s. 37(10) indicates that no appeal lies as there are grounds for the review, such as a change
of right from a decision of the Court of Appeal, so in the young person’s circumstances (s. 94(5)).
leave is required to appeal to the Supreme Court of
Canada. The constitutionality of this provision was Section 98 allows the Attorney General or the pro-
challenged in R. v. C.P., 2021 SCC 19. The majori- vincial director to apply to convert the community
ty held that automatic rights of appeal are not fun- supervision portion of a custody and supervision
damental rights protected in the Charter, and the order into custody, if the court finds that there are
provision also balances protecting young people reasonable grounds to believe that the young person
against automatic rights of appeal by the Crown. will commit a serious violent offence and that the
conditions of sentence would not prevent this.
2. Reviews
Two types of sentence review are available under [§7.10] Provincial Statutory Offences
the YCJA:
The Youth Justice Act, S.B.C. 2003, c. 85, governs pros-
(a) reviews of non-custodial youth sentences, ecutions under provincial legislation, such as the Motor
such as probation orders, under s. 59; and Vehicle Act and the School Act.
(b) reviews of custodial sentences, under ss. 87, A sentence of custody for not more than 30 days is
94 and 98. available for the following offences, among others:
Section 59 permits the court to terminate or review • failure to comply with a youth sentence;
non-custodial sentences on application by a young
person, that young person’s parent, the Attorney • contraband in, or trespass upon, a youth custody
General, or the provincial director. The grounds for centre or corrections centre; and
such reviews are set out in s. 59(2), and can include • trespassing on school grounds.
the young person’s inability to comply with the
sentence. A review under this section cannot result A youth can also be sentenced to not more than 90 days
in a more onerous sentence without the young per- custody for driving while prohibited or suspended, or for
son’s consent, except if the review application is contravening a protective intervention or restraining
being made because the young person breached the order.
original sentence, or if the sentence must be ex- Unlike under the YCJA, custodial sentences under the
tended to allow the young person to complete pro- Youth Justice Act do not include a period of supervision
grams included in the sentence (s. 59(8)). in the community.
Section 87 allows a young person serving a custo-
dial sentence to apply to the court to be moved to a
less restrictive level of custody (commonly called
“open custody”) or to a more restrictive level of

Criminal Procedure
 93

Before the client enters a plea, defence counsel

Chapter 8 must be satisfied that the person truly admits
the offence and is entering the plea for appro-
priate reasons (for example, not to “get it over
Sentencing1 with”). Attempting to plead guilty with an ex-
planation generally results in the plea being
struck and counsel being embarrassed. Also,
defence counsel should have reviewed the
[§8.01] Preparation charges with the client and considered whether
any legal defences were available. Counsel
One of the most difficult tasks judges face in a criminal should review s. 606(1.1) and its substantive
matter is imposing sentence. Many counsel spend hours, components with their client before the client
days or weeks cross-examining witnesses and arguing enters a plea. This section requires that the plea
the finer points of the facts and law on the issue of guilt be voluntary; that the accused understands the
or innocence and, when their client is found guilty, they plea is an admission of the essential elements of
spend only a short time preparing for the sentencing pro- the offence, the nature and consequences of the
ceeding. Ensuring that a fit sentence is imposed is a vital plea, and that the court is not bound by any
part of the practice of criminal law. agreement between the accused and prosecutor;
This chapter addresses that practice in two parts: the sen- and that the facts support the charge. Generally,
tencing hearing and the sentences that are available. the judge will ask counsel to confirm they have
reviewed this section with their client before
All section references are to the Criminal Code unless accepting a plea.
otherwise specified. Note that several (not all) mandato-
ry minimum sentences were eliminated effective No- Each person charged with an offence will re-
vember 17, 2022 upon An Act to Amend the Criminal ceive an initial sentencing position indicating
Code and the Controlled Drugs and Substances Act, whether the Crown may seek jail. This is rele-
S.C. 2022, c. 15 receiving Royal Assent and coming into vant information for the legal aid application
force. process. Once retained, defence counsel should
discuss the Crown’s position on sentencing
with the Crown before speaking to the client
[§8.02] Sentencing Hearing—The Process about a plea. To advise the client properly,
counsel will want the accused to know exactly
A sentencing hearing starts with either the admission or what sentence (or range of sentence) the Crown
determination of guilt of the accused. Then, the Crown will be seeking. Defence counsel should be
makes submissions and the defence follows. Each of aware that the Crown’s position on sentencing
these aspects is explored in more detail below. on a guilty plea prior to fixing a date of trial
1. Preliminary Issues will usually be lower than after the trial date is
fixed. This is in recognition of the mitigating
(a) Determination or Admission of Guilt effect of an early guilty plea and the remorse it
A sentencing hearing starts after either the usually shows.
judge’s finding of guilt following a trial, or af- Prior to entering a plea on behalf of a client,
ter the accused pleads guilty to the charges. If counsel should also find out whether the client
an accused is intending to enter a guilty plea, has other outstanding matters before the courts
defence counsel needs to consider several is- in any jurisdiction. Charges from other jurisdic-
sues. tions can be “waived” into a jurisdiction for a
guilty plea, in order to combine it with other
files. The advantage of dealing with all out-
standing files at once is that the “totality” prin-
1 Colleen Elden and Sara Clouston updated §8.01–§8.08 of this ciple should result in a lower ultimate sentence
chapter in January 2023; Erica Olmstead updated §8.09 in De-
cember 2022; and Eric Purtzki updated §8.10 in February
than many separate sentences that may be
2023. Previously updated by Kasandra Cronin, KC, and Sara served consecutively. The disadvantage is that
Clouston (§8.01–§8.08 in 2021); Kasandra Cronin, KC (§8.01– the Crown may argue that the larger picture
§8.08 in in 2017 and 2019); Peter H. Edelmann (§8.09 in 2020); shows a higher level of criminality.
John W. Conroy, KC (§8.10 in 2017); Michelle Booker, Nicole
Jedlinski and Christie Lusk (2014); Elizabeth Campbell and (b) Pre-Sentence Reports
Carol Fleischhaker (2003 and annually thereafter); Jacinta Law-
ton (2001); Teresa Mitchell-Banks, KC (1998–1999); and John Once the accused has entered a guilty plea or
W. Conroy, KC (annually until 1997). the court finds the accused guilty, the court can
order a probation officer to prepare and file a

Criminal Procedure
 94

pre-sentence report. These reports are supposed pre-sentence report: R. v. Schneider, 2007
to assist the court when imposing a sentence or BCCA 560.
when determining if the offender should be dis-
(c) Gladue Reports
charged (s. 721). These reports are based on the
description of the offence contained in the po- Section 718.2(e) of the Criminal Code requires
lice report, unless the court advises the proba- that “all available sanctions, other than impris-
tion office otherwise. It may take eight weeks onment, that are reasonable in the circumstanc-
or longer in some jurisdictions for a report to be es and consistent with the harm done to victims
prepared. or to the community should be considered for
all offenders, with particular attention to the
Subsection 721(3) sets out the matters that must
circumstances of Aboriginal offenders.” Section
be contained in a pre-sentence report, unless the
718.2(e) is a remedial provision which was in-
court otherwise specifies. These currently in-
troduced to address the overincarceration of In-
clude: the offender’s age, maturity, character,
digenous people in Canada. R. v. Gladue,
behaviour, attitude and willingness to make
(1999), 133 C.C.C. (3d) 385 (S.C.C.) and R. v.
amends; the offender’s previous record, includ-
Ipeelee, 2012 SCC 13, are the leading cases
ing any youth record (subject to the disclosure
with respect to how s. 718.2(e) should be ap-
restrictions in s. 119(2) of the Youth Criminal
plied, and the framework for sentencing Indige-
Justice Act); and the history of any alternative
nous offenders.
measures used and the offender’s response to
them. At every sentencing of an individual who is In-
digenous, the judge has a statutory duty to con-
If the offender is Indigenous, the report should
sider (1) the unique systemic and background
contain a Gladue component. (Gladue is ad-
factors which may have played a part in bring-
dressed later in this chapter.) Counsel will need
ing the particular offender before the court
to gather comprehensive information relevant to
(called “Gladue factors”); and (2) the types of
the Gladue analysis in addition to that con-
sentencing procedures and sanctions which may
tained within the pre-sentence report, or request
be appropriate because of the offender’s partic-
a Gladue report, to ensure the court has all the
ular Indigenous heritage. To ensure this infor-
information it must consider.
mation is before the court at sentencing,
The probation officer will not, and should not, counsel should request a Gladue report, where
give an opinion about what is in their view the appropriate and time allows.
appropriate sentence. The probation officer can
In BC, the court can order a Gladue report,
assist the court by setting out what resources
which is now prepared by the BC First Nations
are available to the offender in relation to the
Justice Council. The client will need to provide
sentencing options.
contact information and consent to the Crown
Defence counsel should obtain a copy of the office to provide redacted disclosure to the BC
pre-sentence report before the sentencing hear- First Nations Justice Council. A Gladue writer
ing and review it carefully to ensure that it will be assigned who will review the materials
complies with s. 721 and does not contain im- and interview the client, family members,
proper opinions or inaccurate facts. Defence friends, and others. In addition to outlining
counsel should also ask the client to review the Gladue factors, the report will contain options
pre-sentence report for inaccuracies. or a healing plan. Defence counsel and the cli-
ent may alternatively choose to order a private
Defence counsel should discuss with the
Gladue report. Defence counsel should review
Crown, prior to the sentencing hearing, any
the report with their client to ensure the con-
matters defence counsel believes are improperly
tents are accurate.
included in the pre-sentence report and any fac-
tual information that is disputed. Where the Crown and defence counsel should meaningful-
Crown does not agree that the information is ly consider the Gladue report and s. 718.2(e) in
inaccurate and should be corrected, or that the determining an appropriate sentence to submit
judge should be invited to disabuse their mind to the sentencing judge.
of the information, defence counsel should con-
sider whether an objection is merited. Such an 2. Crown’s Submissions
objection will give the Crown the opportunity (a) Facts
to prove the disputed fact in the pre-sentence
report: s. 724(3). Absent an objection, the judge When a judge has determined guilt following a
is entitled to consider all of the contents of the trial, the facts will already be before the court.
The court may accept as proven any infor-

Criminal Procedure
 95

mation disclosed at trial and any facts agreed on court to place a value on the life of a deceased
by the Crown and the defence. If the trial in- victim greater than what is due every deceased
volved a jury, the court must accept as proven victim of crime (R. v. Bremner, (2000), 146
all express or implied facts that are essential to C.C.C. (3d) 59 (B.C.C.A); R. v. Berner, 2013
the jury’s verdict of guilty. The court may find BCCA 188.). Defence counsel should review
that additional facts (aggravating or mitigating) the form and content of any VIS with the ac-
were proven at trial or the court may hear addi- cused and ensure that it includes only properly
tional evidence about that fact by either party. admissible information.
The party who is seeking to rely on a relevant
While the VIS must be in writing, the sentenc-
fact, including something contained in the pre-
ing judge must permit the victim to read the
sentence report, has the burden of proof. If the
VIS or present the VIS in any other way the
Crown seeks to rely on a relevant fact as an ag-
court deems appropriate, if the victim requests
gravating factor, and the defence disputes it, the
(s. 722(5)).
Crown must prove the fact beyond a reasonable
doubt (R. v. Gardiner, [1982] 2 S.C.R. 368; (c) Criminal Record
s. 724 (3)). If the defence seeks to rely on a rel-
The Crown will seek to file a criminal record
evant fact as a mitigating factor, and the Crown
for the accused if one is alleged. Defence coun-
disputes it, the defence must prove the fact on a
sel should make sure that the record is accurate
balance of probabilities.
before it is filed in court. Defence counsel
When an accused enters a guilty plea, the should alert the Crown if any entries on the al-
Crown will read the facts into the record. The leged record are disputed, because the Crown
Crown and defence may also provide the court may seek to adjourn the hearing so that evi-
with an “agreed statement of facts.” dence can be called to prove the record.
If the defence disputes any facts, the Crown (d) Law
may call evidence at the sentencing hearing to
For Crown counsel the next step in the sentenc-
prove the facts in issue. The defence may cross-
ing hearing is to refer to any law the Crown
examine those witnesses. If the defence intends
thinks is relevant to the hearing.
to dispute any of the facts in the police report, it
is best to advise Crown so that if it is a point the Counsel will likely want to refer to law from
Crown is seeking to prove, the witnesses can be two sources during a sentencing hearing: (1) the
notified and appropriate court time can be set Criminal Code ss. 718–718.201, which set out
aside. Similarly, if the defence chooses to call the purposes and principles of sentencing; and
evidence at the hearing, the Crown may cross- (2) sentencing decisions (case precedents).
examine the witnesses. The court may also When referring to case precedents, counsel will
compel any person to attend to assist the court look for those cases involving similar offences
in determining the appropriate sentence and individuals in similar circumstances to the
(s. 723(4)). offender.
(b) Victim Impact Statements Section 718 sets out the following objectives in
sentencing:
Following submissions on the facts, Crown
counsel will often file a victim impact statement (i) denunciation;
(“VIS”) with the court.
(ii) deterrence;
Note that s. 2 of the Criminal Code has a
(iii) protection of the public;
broader definition of “victim” than just the vic-
tim of a crime. It also includes a person who (iv) rehabilitation of the offender;
has suffered harm, property damage or econom-
(v) reparation to victims; and
ic loss resulting from an offence against another
person. (vi) promotion of a sense of responsibility in
the offender.
Section 722 outlines the content and form of a
VIS. It must be in the prescribed form and may Section 718.01 directs sentencing judges to give
detail the emotional and financial impact of the primary consideration to denunciation and de-
offence on the victim. There are specific criteria terrence when sentencing for an offence involv-
defining what information may and may not be ing abuse of a person under the age of 18 years.
included. For example, the victim cannot assert See also R. v. Friesen, 2020 SCC 9 for sentenc-
unproven facts or give an opinion on what the ing principles for sexual offences against chil-
sentence should be. Nor should a VIS ask the dren.

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Sections 718.02 and 718.03 require denuncia- normal level of a sentence for the most se-
tion and deterrence be given primary considera- rious of the individual offences involved,
tion for listed offences against a peace officer or its effect is crushing and not in keeping
or other justice participant, and service animals. with the offender’s record and prospects:
R. v. M.(C.A.), [1996] 1 S.C.R. 500.
The government introduced new sentencing
provisions with respect to violence against in- (iii) An offender should not be deprived of lib-
timate partners and vulnerable people, as part of erty if less restrictive principles may be
An Act to amend the Criminal Code, the Youth appropriate (also known as the principle of
Criminal Justice Act and other Acts and to restraint): s. 718.2(d).
make consequential amendments to other Acts.
(iv) All available sanctions other than impris-
These provisions require the court to give pri-
onment that are reasonable in the circum-
mary consideration to denunciation and deter-
stances should be considered for all
rence where the offence involved abuse against
offenders, with particular attention to the
a vulnerable person (s. 718.04); to consider the
circumstances of Indigenous offenders:
increased vulnerability of women victims, with
s. 718.2(e).
particular attention to the circumstances of Ab-
original female victims, when imposing a sen- (e) Gladue
tence in respect of an offence that involved the
As noted above, in every case involving an In-
abuse of an intimate partner (718.201); and to
digenous offender, the judge has a statutory du-
consider violence against an intimate partner to
ty, imposed by s. 718.2(e), to consider (1) the
be an aggravating factor (s. 718.2(a)(ii)). Sec-
unique systemic and background factors which
tion 718.3(8) allows the court to impose a term
may have played a part in bringing the particu-
of imprisonment that is more than the maxi-
lar offender before the court; and (2) the types
mum term for the offence where an accused is
of sentencing procedures and sanctions which
convicted of an indictable offence involving vi-
may be appropriate because of the offender’s
olence used, threatened, or attempted against
particular Indigenous heritage (Gladue and
their intimate partner.
Ipeelee, supra). The offender is not required to
Regardless of what objectives are primary in establish a causal link between background fac-
the given circumstances, a judge must always tors and the commission of the offence before
consider the objectives in light of the funda- being entitled to have those factors considered
mental principle that a sentence must be pro- by the sentence judge. For the defence position
portionate to the gravity of the offence and on Indigenous offenders, see §8.02(3)(d).
degree of responsibility of the offender
(f) Maximum and Minimum Sentences
(s. 718.1). Proportionality is the organizing
principle in reaching a fair, fit and principled The Criminal Code sets out maximum sentenc-
sentence (R. v. Parranto, 2021 SCC 46). es for offences. The maximum available sen-
tence can differ depending on whether the
Section 718.2 sets out factors that the court is
Crown decides to proceed summarily or indict-
statutorily required to treat as aggravating, in-
ably on a hybrid offence. For summary offenc-
cluding abuse of a child or intimate partner, and
es, the maximum sentence is generally a fine of
motivations of hate or bias regarding race or
not more than $5000, imprisonment of not more
sexual orientation. This is not an exhaustive list
than two years less a day, or both, unless oth-
of potentially aggravating factors.
erwise provided for by law (s. 787).
Other important sentencing considerations are
A number of mandatory minimum sentences in
also set out in s. 718.2:
the Criminal Code, including for sexual inter-
(i) Parity is the principle that a sentence ference, child pornography offences, and sexual
should be similar to sentences imposed on assault of a complainant under age 16, have
similar offenders for similar offences in been struck down as unconstitutional by case
similar circumstances: s. 718.2(b). law in BC. An Act to amend the Criminal Code
and the Controlled Drugs and Substances Act,
(ii) The totality principle says that where sen-
which received Royal Assent on November 17,
tences are imposed consecutively, the
2022, repealed mandatory minimum sentences
combined sentence should not be unduly
for a number of weapons offences, robbery and
long or harsh: s. 718.2(c). A sentence
extortion without a firearm, and CDSA offenc-
should not exceed the overall culpability
es. These changes provide for wider discretion
of the offender, and may offend the totali-
in imposing non-custodial sentences (see
ty principle if it is substantially above the
§8.04(8)). Prior to the sentencing hearing,
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counsel should research applicable case law to example, if the offender is imprisoned, the de-
determine whether a mandatory minimum still tails of the offence and the offender will gener-
applies or whether it has been struck down be- ally be given to the institution. Several
cause of a constitutional challenge. decisions affecting the offender during the sen-
tence may be based on those details. Initially,
(g) Sentencing Position
the offender will be classified to maximum,
The final step for the Crown is to make a sub- medium or minimum institutions, and case
mission to the judge as to the sentence the workers will select facts from the materials
Crown deems appropriate. It is quite appropri- provided and put them into reports to others
ate for the Crown to point out the salient fea- who will make decisions about the offender.
tures of the offence, any aggravating or Ultimately, a parole officer or other case work-
mitigating circumstances, and an appropriate er will consider much of the material provided
sentence within the range suggested by the case when preparing reports that will be forwarded
law. to provincial corrections officials or the Parole
Board of Canada. These decision-makers will
Sometimes (usually if the Crown and the de-
usually accept the facts provided in the docu-
fence have been negotiating before the sentenc-
mentation and may rely on the facts to decide
ing hearing) Crown and defence counsel may
on the liberty of the offender. Psychiatrists,
agree on the appropriate disposition. There is a
psychologists and other professionals will rely
difference in the legal implications of a formal
on these facts when assessing offenders and ex-
joint submission and a case where the Crown
pressing their opinions. In some cases, an of-
suggests a range and defence agrees that is the
fender may do more time in prison because
appropriate range. Where counsel have negoti-
insufficient attention was spent on the details of
ated a joint submission for a particular sen-
the facts at the outset.
tence, they should advise the court. While
sentencing is ultimately a function of the judge, See §8.02(2)(a) with respect to disputes and
and the court is not bound by anything agreed agreements regarding the facts.
to by counsel, a court should not depart from a
(b) Offender’s Circumstances
joint submission on sentence unless the pro-
posed sentence would bring the administration In order to explain the offender’s circumstanc-
of justice into disrepute or would otherwise be es, defence counsel will want to consider
contrary to the public interest (R. v. Anthony- providing the court with detail as to the offend-
Cook, 2016 SCC 43). A sentencing judge con- er’s background, present character, and any
sidering a harsher sentence than that proposed criminal record that exists.
must provide counsel with the opportunity to
A Provincial Court judge may hear dozens of
make further submissions (R. v. Nahanee, 2022
sentencing submissions each day. Defence
SCC 37).
counsel’s role is to help the judge see the client
(h) Ancillary and Other Orders as an individual in a comprehensive yet concise
way. Remember this when obtaining infor-
The Crown may seek ancillary orders
mation from the client.
appropriate to the offence, potentially including
a firearm prohibition (ss. 109, 110); forfeiture (i) Client’s Background
of weapons and ammunition (s. 491); a DNA
It is useful for defence counsel to develop
order (s. 487.051); a prohibition preventing
a standard Client Information Form to be
access to children (s. 161); or a SOIRA order
completed at the first interview with the
concerning the Sex Offender Information
client and kept up to date. If the client has
Registration Act (s. 490.012); see §8.05–§8.08.
a sentencing hearing, the lawyer will have
Section 743.21 provides that the court may
the necessary facts about the client ready.
order the offender be prohibited from
communicating with any witness, victim, or Defence counsel should obtain details that
other person during the custodial portion of the include the following:
sentence.
• the client’s full correct name, age, and
3. Defence Submissions date and place of birth;
(a) Facts • If the client is Indigenous, their com-
munity, Nation, or band; fami-
Defence counsel must consider the facts upon ly/community history; Gladue factors;
which the sentence will be based because there and non-custodial options for bail or
are implications beyond just the sentence. For

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sentencing (see Legal Aid BC’s criminal record can be extremely helpful
Gladue Submission Guide); to a sentencing court.
• the client’s marital status, the name of Defence counsel looking at the client’s
the client’s spouse and their occupa- criminal record should ask the following:
tion, and the names and ages of all
• Is the record accurate?
dependants;
• If there are previous convictions, how
• the client’s education and training
long has it been since the last one,
certifications;
what were the circumstances of the
• the client’s occupation, employment offences, and how does the client ex-
circumstances and employment plain previous convictions?
history (also relevant to ability to pay
• If the offences were similar, what
a fine or make restitution);
were the sentences for those offences?
• the length of time that the client has If the previous offences were of an
lived or worked in the community and entirely different nature, might that
their citizenship status; and affect sentencing?
• the client’s physical and mental • Has the accused made any attempt
health. since that time to rehabilitate?
Counsel may also want to obtain consents (c) Sentencing Position and Rehabilitation Plan
from the client for third parties and insti-
To formulate a sentencing position and prepare
tutions to release medical, school, tax and
submissions, defence counsel will need to get
probation records.
details about the offender and the offence(s),
(ii) Character Evidence analyze the situation, isolate the relevant prin-
ciples of sentencing in the circumstances of the
Evidence of good character may be very
case, and organize the facts, circumstances and
important to the judge when determining
relevant principles into a logical and cohesive
an appropriate sentence. Counsel can in-
argument or submission on sentence.
terview the family of the accused, friends,
neighbours, business associates and em- It is important to canvass past sentencing cases
ployers to find out about the client’s involving similar offences and offenders of
background. Counsel should ensure that similar background. Although counsel will rare-
the witnesses themselves are of good ly find an identical case, a review of the cases
character and are credible and impressive. will determine the appropriate range of sen-
On sentencing, specific examples of the tencing. This will help when arguing the range
good work and conduct of the offender within which the sentence should fall. Note that
are admissible and helpful to the judge ranges are helpful tools that can help sentencing
when assessing the overall character of judges craft a proportionate sentence, but are
the offender. Counsel may call witnesses, not binding (Parranto, supra). While sentences
or file letters obtained from employers should be similar to sentences imposed on simi-
and character references. The letters are of lar offenders for similar offences committed in
greater weight where the authors make similar circumstances, sentencing is always an
clear they are aware of the conviction. individualized process.
Defence counsel should vet and provide
Counsel should consider consulting sources for
these materials to Crown in advance.
sentencing cases and ranges, such as Nadin-
(iii) Criminal Record Davis’s Canadian Sentencing Digest, available
on Westlaw CriminalSource and through
Counsel should review the offender’s past
Courthouse Libraries BC, and sentencing cases
criminal record, if any, and obtain not on-
available through Quicklaw. Quicklaw also
ly the date, place and description of prior
contains helpful secondary sources such as Ru-
offences, but also the penalties imposed
by, Chan and Hasan’s Sentencing, 8th edition
and if the client pled guilty or was found
(Toronto: LexisNexis, 2012).
guilty after trial. Knowing the circum-
stances of past offences is also important Try to avoid referring the court to a raft of cases
to address aggravating or mitigating cir- with limited applicability to your client’s
cumstances. A complete analysis of a past situation. A busy Provincial Court judge will
not appreciate having to wade through a two-

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 99

inch thick binder of case law at a sentencing is not required to impose the minimum sentence
hearing involving shoplifting. for the offence (s. 10(4) and (5) of the CDSA).
An effective practice is to provide the court In most cases, preparation for sentencing com-
with the current leading Supreme Court of mences from the first interview with the client.
Canada or BC Court of Appeal decision dealing When the accused intends to plead guilty and
with the applicable sentencing principles in the the causes of the criminal behaviour can be
type of case before the court: for example, theft identified at an early stage, encourage the client
from an employer or break and enter of a dwell- to start some rehabilitative action, such as alco-
ing place. Then, if you can find recent case law hol and drug counselling or psychological or
from British Columbia dealing with circum- psychiatric treatment, before the sentencing
stances as close to your client’s as possible, hearing. These actions help show the offender’s
provide the court with only those cases. If they commitment to rehabilitation and that any dan-
are from the BC Supreme Court or Court of ger to the public can be controlled by a non-
Appeal, so much the better. custodial sentence. Up-to-date progress reports
concerning such rehabilitative measures should
If the accused was detained, then counsel
be filed with the court at the time of sentencing.
should know the exact time spent in pre-trial
Periods of time on bail, or prior non-custodial
custody. If a custodial sentence is to be im-
sentences that have been completed satisfactori-
posed, the judge will generally grant 1.5 days’
ly should be brought to the attention of the
credit for every day of pre-sentence custody
court to show the offender’s ability to comply
served, provided the accused is not disqualified
with a supervisory sentence and to show that a
under s. 719(3.1), and provided the Crown does
sentence of incarceration is unnecessary.
not seek to rebut the inference that the accused
would have obtained early release: s. 719; R. v. Counsel should consider how the application of
Summers, 2014 SCC 26. Credit for pre-sentence Gladue, or social context evidence such as anti-
custody is discussed in more detail in Black racism, reduces the client’s level of mor-
§8.04(19). al blameworthiness or otherwise mitigates the
sentence (Gladue; R v. Morris, 2021 ONCA
In some cases, it may also be important to
680).
ensure that the court knows of the various
programs and facilities available to assist it in Defence counsel must bring to the court’s atten-
tailoring the sentence to fit a particular tion particulars of any reasonable chance of re-
individual. Although judges receive some habilitation outside of custody, raise any
information from the Corrections Branch, the relevant mitigating circumstances (which may
Correctional Service of Canada and others, include an individual’s mental health: R. v.
generally the court depends on Crown and Badhesa, 2019 BCCA 70) or collateral conse-
defence counsel to provide this information and quences (R. v. Suter, 2018 SCC 34), urge upon
to update the court as to the current programs, the court the least restrictive reasonable alterna-
facilities and options available. tive sentence in the circumstances, and ensure
that the sentence is fit and just and within the
Provide the court with concrete solutions and
normal range in accordance with the principles
sentencing suggestions. When the offender has
of sentencing and relevant past applications.
a drug addiction or there are other factors for
which a rehabilitation plan is appropriate, put a Section 728.2(d) of the Code can help defence
plan together and be able to show the court it is counsel persuade the court to impose a non-
in place, for example, by arranging a bed at a custodial sentence. This section states that an
treatment centre. offender should not be deprived of liberty if
less restrictive sanctions may be appropriate in
Section 720(2) allows an offender, with the
the circumstances. For example, a conditional
consent of the Crown and the court, to delay
sentence involving some form of “house arrest”
sentencing in order to attend an approved
may be appropriate as part of a sentence.
treatment program. The Drug Treatment Court
is such an approved program, and may be an (d) Indigenous Offenders
option for offenders whose crime cycles are
When the client is an Indigenous person, coun-
motivated by drug use and who wish to engage
sel should be aware of additional considerations
in treatment. If an offender convicted of an of-
that apply on the sentencing. As noted earlier,
fence under the Controlled Drugs and Sub-
s. 718.2(e) requires the court to consider all
stances Act, S.C. 1996, c. 19 (the “CDSA”)
available sanctions other than imprisonment for
successfully completes this program, the court
every offender, but judges must pay particular

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attention the circumstances of offenders who [§8.03] Preparing Submissions on Sentence

are Indigenous. Section 718.2(e) applies in all
cases involving an Indigenous offender. There are resources to help counsel address the factors in
sentencing and prepare to make submissions. For
As the Supreme Court of Canada determined in
example, see the Provincial Court’s “Sentencing Fact
Gladue, supra, s. 718.2(e) requires the sentenc-
Sheet,” the Law Society’s “Sentencing Procedure” in the
ing judge to consider the unique systemic and
Practice Checklists Manual, and the CLE publication
background factors that may have contributed
“Sentencing Preparation Check Sheet” (November
to bringing the Indigenous offender before the
2009), prepared by the Honourable Judge Joanne
court. Judges must take judicial notice of the
Challenger of the BC Provincial Court and Ursula Botz,
broad systemic and background factors affect-
Crown Counsel.
ing Indigenous people generally. Any addition-
al case-specific information can come from
counsel or a pre-sentence report with a Gladue [§8.04] Available Sentences
component.
The following paragraphs describe the sentences that are
The defence may also obtain a stand-alone
available under the Criminal Code. These sentences are
Gladue report (by hiring a report writer private-
listed in approximate ascending order of severity.
ly or asking the court to order a Gladue report)
or might make Gladue submissions without the 1. Absolute Discharge
benefit of a report. When gathering and making
(a) Imposing a Discharge
Gladue submissions, counsel should be mindful
of using a culturally competent, trauma- A discharge, either absolute or conditional, can
informed approach. be imposed for either summary conviction of-
fences or indictable offences. A discharge may
Practically, when counsel is trying to formulate
be granted for offences under the Code, as well
an appropriate and persuasive submission on
as for provincial offences (R. v. Trow (1977),
sentence, counsel should be aware of the many
38 C.C.C. (2d) 229 (B.C.S.C.)). A discharge
resources available to Indigenous offenders. For
may be granted even if the offender has previ-
example, the Native Courtworker and Counsel-
ously completed a diversion program (R. v.
ling Association of British Columbia is an ex-
Drew (1978), 45 C.C.C. (2d) 212 (B.C.C.A)).
cellent resource and has offices throughout
British Columbia. Native Courtworkers assist A discharge (either absolute or conditional) can
people through the court system on a daily ba- only be imposed if two conditions exist:
sis. They provide an invaluable service to both
(i) the offence has no minimum punish-
the offender and the courts. Native Courtwork-
ment; and
ers can also help find places for Indigenous of-
fenders in treatment centres and counselling (ii) the offence has a maximum punishment
programs designed specifically for offenders of less than 14 years imprisonment
who are Indigenous. (s. 730; R. v. Bradshaw (1975), 21
Clients who are Indigenous and are pleading C.C.C. (2d) 69 (S.C.C.)).
guilty to a criminal offence may be able to have When these statutory requirements have been
their case heard for sentencing in one of the met, a sentencing judge may impose a dis-
BC’s Indigenous Courts (also called First Na- charge (absolute or conditional) if:
tions Courts or Gladue courts). These courts
approach sentencing from the perspective of re- (i) the discharge is in the best interests of
storative justice. There are Indigenous Courts the accused; and
located in Duncan, Kamloops, Merritt, New (ii) the discharge is not contrary to the pub-
Westminster, North Vancouver, Prince George, lic interest
Williams Lake, and Hazelton.
(s. 730; R. v. Fallofield (1973), 13
Indigenous Justice Centres, located currently in C.C.C. (2d) 450 (B.C.C.A.)).
Merritt, Prince George, and Prince Rupert, may
also assist with an offenders’ reintegration and For example, if the offender must support a
restorative options. family and needs to travel outside the country
for work, it would be in the offender’s interests
to receive a discharge. A discharge may not be
appropriate for violent crimes, including crimes
involving violence against women (R. v.

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Begley, 2019 BCCA 331), but discharges have conviction records retrieval system kept by the
been granted in some such cases. police. No department or agency of the
Government of Canada (including the police)
The fact that an offender has previously been
can disclose the existence of the record or
granted a discharge is a relevant consideration
discharge without the prior approval of the
at the time of sentencing (R. v. Tan (1974), 22
Solicitor General of Canada (s. 6.1 of the
C.C.C. (2d) 184 (B.C.C.A.); R. v. Small, 2001
CRA). There are exceptions for disclosure to
BCCA 91). However, a record does not pre-
police enforcement agencies under limited
clude the granting of a discharge.
circumstances (s. 6.2 of the CRA).
(b) The Effect of an Absolute Discharge
(c) Revoking a Conditional Discharge
When the offender receives an absolute dis-
A conditional discharge may be revoked and a
charge, the offender is deemed “not to have
conviction substituted against an offender in
been convicted” (ss. 730(1) and (3)).
two situations:
One year following an absolute discharge, the
(i) the offender is convicted of a new of-
record of the accused’s conviction is to be de-
fence while on the probation order; or
leted from the automated criminal conviction
records retrieval system kept by the police. No (ii) the offender is convicted of a breach of
department or agency of the Government of any of the conditions of the probation
Canada (including the police) can disclose the order.
existence of the record or discharge without the
Once the conditional discharge is revoked, the
prior approval of the Solicitor General of Cana-
court may enter a conviction and impose a
da (s. 6.1 of the Criminal Records Act, R.S.C.
sentence (s. 730(4)).
1985, c. C-47 (the “CRA”)). Exceptions are
made for disclosure to police enforcement 3. Probation Orders
agencies under limited circumstances (s. 6.2 of
the CRA). (a) Imposing a Probation Order
Despite these provisions, an absolute discharge The court may impose a probation order either
will often show on the records retrieval system in combination with a suspended sentence (if
for up to three years. U.S. customs officers may there is no minimum punishment), or in addi-
have access to these records, and offenders sen- tion to a sentence of a fine or imprisonment.
tenced to discharges may be turned away at the (Those sentences are described more below.)
border. The primary purpose of a probation order is to
The CRA provisions respecting record suspen- secure the good conduct of the convicted person
sions apply only to offenders who have been (R. v. Dashner (1973), 15 C.C.C. (2d) 139
“convicted” of an offence. Offenders who have (B.C.C.A.)).
been discharged are deemed not to be “convict- The probation order may bind the offender for
ed” pursuant to s. 730(3) of the Criminal Code, up to 3 years after it comes into force
and therefore are not part of the pardon system. (s. 732.2(2)(b)).
2. Conditional Discharge Before making a probation order, the court
must consider whether s. 109 or 110 of the
(a) Imposing a Discharge
Code (a firearms prohibition) is applicable
See §8.04(1), “Absolute Discharge” for when a (s. 731.1(1)).
conditional discharge may be imposed.
(b) Conditions and Variations of Probation Orders
(b) The Effect of a Conditional Discharge
Subsection 732.1(2) sets out the compulsory
When a sentencing judge directs that an of- conditions of a probation order. Subsection
fender be discharged conditionally, the offend- 732.1(3) provides for optional conditions.
er is placed on probation for a set period of
The offender, the probation officer or the
time. Once the probation order expires and the
Crown may apply to the court that made the
offender has abided by the conditions of the
probation order to vary the optional conditions
probation order, the conditional discharge be-
in the order (s. 732.2(3)).
comes absolute.
(c) Transfer of Probation Orders
Three years after an offender has been granted
a conditional discharge, the criminal record is The court may transfer a probation order to an-
to be deleted from the automated criminal other area within the province or outside the

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 102

province (s. 733). A transfer outside the prov- (c) Breach of a Probation Order that Is Part of a
ince requires the consent of the Attorney Gen- Suspended Sentence
eral of the province in which the order was
When a probation order is made pursuant to a
made.
suspended sentence, the offender must be
(d) Breach of Probation Order warned that if they breach the probation, they
may be charged with a separate offence of
A breach of a probation order occurs when an
breach of probation, and may be brought back
offender who is bound by a probation order
before the court and sentenced on the original
fails or refuses to comply with a condition of
offence (s. 732.1(5)). Any failure by the court
the probation order without reasonable excuse
to comply with the obligations as set out in
(s. 733.1).
s. 732.1(5) does not render the probation order
Section 733.1 sets out the penalty for breach of invalid.
a probation order. The Crown may proceed ei-
Following a breach, the originating court may
ther by indictment (maximum penalty of four
revoke the suspended sentence where:
years), or summarily.
(i) an offender bound by probation order is
The Crown must prove all required elements of
convicted of another offence (including
the offence—the existence of the probation or-
a breach of that probation order under
der as well as the circumstances that gave rise
s. 733.1); and
to the breach. Once the existence of the breach
is proven, the offender may provide a reasona- (ii) no appeal has been taken on that convic-
ble excuse. tion, or an appeal on that conviction has
been taken and has been dismissed or
The trial for this offence can be held anywhere
has been abandoned (s. 732.2(5)).
in the province where the offender is arrested or
found. If the arrest occurs outside the province Following the hearing, the court may:
in which the original order was made, no pro-
(i) revoke the probation order and impose
ceedings can be instituted in that province
any sentence that could have been im-
without the consent of the Attorney General of
posed initially if the sentence had not
the province in which the offender is arrested.
been suspended;
4. Suspended Sentence and Probation Order (ii) make such changes to the optional con-
(a) Imposing a Suspended Sentence and Probation ditions that it deems desirable; or
Order (iii) extend the period for which the proba-
The court may impose a “suspended sentence” tion order is to remain in force, provided
in combination with a probation order. A “sus- it does not exceed one year
pended sentence” means that the court suspends (s. 732.2(5)(d) and (e)).
the passing of sentence and directs that the of- Revocation applications are rare.
fender be released on conditions as prescribed
in the probation order (s. 731). A suspended 5. Fines
sentence is not available when the offence car-
Section 734 outlines the imposition of fines on in-
ries a minimum penalty (s.731(1)(a)).
dividuals. Section 735 outlines how fines are im-
(b) When a Probation Order Pursuant to a posed on organizations. Fines are imposed rarely.
Suspended Sentence Comes into Force
(a) Imposing a Fine on an Individual
A probation order made pursuant to a suspend-
The court must be satisfied, on a balance of
ed sentence comes into force on the day it is
probabilities, that the offender is able to pay the
made (s. 732.2(1)(a)).
fine. When the court imposes a fine, it must
When an offender is subject to a probation or- meet the requirements in 734.1–734.2, which
der and is then convicted of another offence require that the amount and timeline of payment
(including the offence of breach of probation), or partial payment be stated; that the offender
or is imprisoned in default of payment of a fine, has a copy of the order; and that the offender
the probation order continues in force, except understands the order, consequences of non-
insofar as the sentence renders it impossible for compliance, options of payment including the
the offender to comply with the probation order fine option program in s. 736, and way to apply
(s. 732.2(2)(a)). for a change in the terms of the order under
s. 734.3.

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The order is not rendered invalid just because fine will be accepted unless that amount is suf-
the court fails to advise the offender of the in- ficient to secure a reduction of the sentence of
formation contained in s.734.2(1) (s. 734.2(2)). one day or a whole number of days (s. 734.8).
(b) Changes to Fines Imposed on Individuals (f) Fines on Organizations
Following the imposition of a fine, the court Any fine imposed on an organization will be at
may hear an application, by or on behalf of the the discretion of the court, unless otherwise
offender, to change any term of the order except provided by law (s. 735(1)(a)).
the amount of the fine (s. 734.3).
Fines imposed on organizations convicted of
The time to pay may be extended by subsequent summary offences cannot exceed $100,000
application, even after the time to pay has ex- (s. 735(1)(b)).
pired and a warrant of committal has been is-
(g) Victim Surcharge
sued (R. v. Yamelst (1975), 22 C.C.C. (2d) 502
(B.C.S.C.)). Section 737 of the Criminal Code requires that
an offender convicted or discharged of an of-
(c) Default of Payment
fence under the Criminal Code or the Con-
An offender defaults where payment of the fine trolled Drugs and Substances Act must pay a
has not been paid in full by the time set out in victim surcharge (s. 737). The amount of the
the order. surcharge is 30% of any fine imposed for the
offence; or, if no fine was imposed, then $100
Where an offender defaults on payment, the
for an offence punishable by summary convic-
provincial or federal government may refuse to
tion and $200 for an offence punishable by in-
issue or renew a license, permit, or other similar
dictment. This section was recently amended in
instrument until the fine is paid in full
response to R. v. Boudreault, 2018 SCC 58,
(s. 734.5); the Crown may file and enter the or-
where the court struck down the victim sur-
der as judgment in the amount of the fine plus
charge regime as unconstitutional. The recent
costs in any civil court in Canada that has juris-
changes (in force as of July 2019) re-enact the
diction for that amount, and it may then be en-
victim surcharge regime but provide the court
forced (s. 734.6); or the court may impose a
with the discretion to waive the surcharge in
period of imprisonment under s. 734(5).
appropriate cases. The court can waive the sur-
(d) Warrant of Committal charge if satisfied that the surcharge would
cause the offender undue hardship or would be
When time has been allowed for payment of a
disproportionate to the gravity of the offence or
fine, the court can only issue a warrant of
the degree of responsibility of the offender.
committal in default of payment of the fine
(s. 734.7) if: 6. Fine Plus Probation Order
(i) the full time allowed for payment has ex- A fine and a probation order may be imposed to-
pired; and gether (s. 731(1)(b)).
(ii) the court is satisfied that the method of re-
7. Restitution
fusing to issue or renew a license or per-
mit or other similar instrument or civil A restitution order requires the offender to pay
proceedings are not appropriate, or the of- money to the victim of a crime for the victim’s fi-
fender has, without reasonable excuse, re- nancial losses resulting from the crime. The ra-
fused to pay the fine or discharge it under tionale is that restitution supports the principle of
the fine option program (s. 734.7). general deterrence. Before making any restitution
order, the court must determine the exact amount to
If no time has been allowed for payment of the
be paid and to whom. Therefore, counsel should
fine and the offender defaults, the court must
come to court with the precise amount to be paid
provide reasons for the immediate committal in
and to whom, with an address for forwarding funds.
the warrant (s. 734.7(2)).
Restitution may be part of a probation order under
(e) Reductions by Part Payment
s. 732.1(3)(h) or a “stand alone” order under s. 738.
The default term of imprisonment can be re- These are two different orders having different con-
duced proportionately by part payment of the sequences to the offender and victims.
fine, whether the payment was made before or
(a) Restitution as Part of a Probation Order
after the execution of a warrant of committal.
However, once the warrant of committal is exe- Section 732.1(3)(h) provides that the court may
cuted, no amount offered in part payment of the order the offender to comply with such other
Criminal Procedure
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reasonable conditions as the court considers de- fews are often employed to restrict the offend-
sirable. This subsection is commonly used to er’s liberty.
direct the offender to pay restitution to the vic-
The CSO provisions in s. 742.1 are intended to
tim of the offence as part of the probation order.
reduce reliance on incarceration and to increase
Failure to pay on time could result in a breach resort to principles of restorative justice in sen-
of probation charge being laid. In order to en- tencing (R. v. Proulx, [2000] 1 S.C.R. 61. Note
sure that this condition is enforceable, the resti- the court’s similar assertions regarding attempts
tution amount must be made payable before the to reduce institutional incarceration for Indige-
probation order expires. nous offenders in R. v. Gladue, [1999] 1
S.C.R. 688).
(b) Restitution as a Stand-Alone Order
(b) Pre-Conditions for Imposing a CSO
A stand-alone restitution order under s. 738 is
an entirely separate order, which may be made The Safe Streets and Communities Act, which
alone or in addition to any other punishment passed on March 12, 2012, provided mandatory
imposed on the offender. It permits the court to minimum sentences for a number of drug and
order that an offender compensate a victim for sexual assault-related offences, and restricted
damage or destruction of property property and the use of CSOs. Pursuant to An Act to Amend
other readily ascertainable amounts incurred the Criminal Code and the Controlled Drugs
from harms caused by the commission of a and Substances Act, S.C. 2022, c. 15, the Crim-
criminal offence, including costs resulting from inal Code was amended, effective Novem-
intimate partner violence (s. 738(1)(c)). It may ber 17, 2022, to alter or remove many of those
be made whether the offender is convicted of mandatory minimum sentences. As a result,
the offence or discharged (under s. 730), and at CSOs are now available for numerous offences
the court’s initiative or on application by the for which they were previously excluded.
Crown.
Pursuant to amended s. 742.1, CSOs are not
Where a stand-alone order is not paid, the order available for the following offences:
may be filed as a civil judgment in any civil
(i) any offence punishable by a minimum
court in Canada. Essentially, s. 738 relieves the
term of imprisonment; and
victim of a criminal offence from having to sue
the offender to be compensated for their dam- (ii) terrorism or criminal organization offenc-
ages. Should the offender later come into funds, es prosecuted indictably with a maximum
the judgment may be enforced and the funds sentence of ten years or more;
collected.
(iii) the offences of attempted murder (s. 239),
8. Conditional Sentence Order of Imprisonment torture (s. 269.1) or advocating genocide
(s. 318).
(a) Nature of Conditional Sentence Order
Where a CSO is not specifically excluded, its
A conditional sentence order (“CSO”) is a sen- availability is governed by whether community
tence of imprisonment served in the community safety would be endangered by the offender
instead of in an institutional setting. For certain serving the sentence in the community
offences, a court can impose a CSO instead of (s. 742.1(a)), whether the imposition of a CSO
requiring that the offender serve a traditional would be consistent with the fundamental pur-
jail sentence. pose and principles of sentencing as found in
A court should only impose a CSO when a sen- s. 718–718.2 (s. 742.1(a)), and the general prin-
tence of imprisonment of less than two years is ciples set out in R. v. Proulx.
appropriate. The court cannot impose a CSO Where denunciation and general deterrence are
when the offence is punishable by a minimum the primary sentencing principles, the court is
term of imprisonment. more likely to impose incarceration in an
CSOs include both punitive and rehabilitative institutional setting. However, conditions of a
conditions (distinguishing them from proba- CSO may be crafted that will satisfy these
tionary measures, which are primarily rehabili- principles. As with probation orders, the court
tative). The punitive conditions ought to restrict is required to provide the offender with a copy
the offender’s liberty. House arrest should be of the CSO. The court must take reasonable
the norm, not the exception (R. v. Proulx, measures to ensure that the offender
[2000] 1 S.C.R. 61). In practice, onerous cur- understands the CSO (s. 742.3(3)). The court’s
failure to comply with these obligations does
not render the CSO invalid (s. 742.3(4)).
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 105

(c) Effect of Pre-Sentence Custody tenders the evidence. In practical terms, it will
generally be the offender who is best situated to
A CSO cannot become available to an offender
convince the court that a CSO is indeed appro-
who otherwise deserves a penitentiary term
priate (R. v. Proulx, [2000] 1 S.C.R. 61).
(more than two years) simply because the of-
fender has spent enough time in pre-sentence (g) Compulsory and Optional Conditions
custody to reduce the penitentiary term to a sen-
The compulsory conditions of a CSO in
tence within the range required for a CSO (less
s. 742.3(1) are similar to those for a probation
than two years). The CSO provisions were not
order under s. 732.1(2). Some of the optional
designed for offenders for whom a penitentiary
conditions for a probation order in s. 732.1(3),
term is appropriate (R. v. Fice, 2005 SCC 32).
such as reporting and remaining within the ju-
(d) Combining Jail and CSOs risdiction, are compulsory for CSOs.
A court cannot impose a “blended” sentence of The optional conditions for a CSO are also sim-
a conditional sentence and custodial imprison- ilar to those for a probation order. However, the
ment for a single offence (R. v. Robertson, 2002 court can order the offender to attend a treat-
BCCA 579; R. v. Fisher, 2000 CanLII 4948 ment program approved by the province, and
(Ont. C.A.)). However, where an offender is does not require the offender’s agreement
sentenced for more than one offence, the court (s. 742.3(2)(e)).
may blend a conditional sentence with custodial
Further, the other reasonable conditions im-
imprisonment, provided the combined sentence
posed on a conditional sentence order are sup-
does not exceed two years less a day, the condi-
posed to be designed to secure the good
tional and custodial sentences are not served
conduct of the offender and to prevent the of-
concurrently, and the requirements of
fender from repeating the same offence or any
s. 742.1(b) (the offence is not punishable by a
other offences (s. 742.3(2)(f)).
mandatory minimum sentence) are satisfied at
least with respect to one of the offences (R. v. (h) Electronic Monitoring Program
Ploumis (2000), 150 C.C.C. (3d) 424 (Ont.
The Electronic Monitoring Program (the
C.A.)).
“EMP”) provides a means of monitoring an in-
(e) CSOs, Fines and Probation dividual who is on house arrest as part of a
CSO. It is available in the most densely popu-
Often a CSO will be followed by a period of
lated parts of British Columbia.
probation up to a maximum of three years
(s. 732.2(1((c)). Where a CSO and probation Under the EMP, a bracelet transmitter is placed
are ordered in relation to the same offence, no on the ankle of the offender and special equip-
fine may be imposed (this would offend the ment that communicates with the Corrections
“two out of three” rule). However, where the Branch computer is placed on the offender’s
offender is convicted of more than one offence, home telephone. A curfew is established with
courts have imposed conditional sentences, clear start and finish times during which the of-
along with probation and a fine (R. v. Ladha, fender is required to remain in their residence.
[2001] O.J. No. 5818 (S.C.J.); R. v. Krolyk, If the offender leaves the designated residence
[1997] O.J. 4207 (Gen. Div.)). at an unscheduled time, the equipment alerts the
Corrections Branch computer and the authori-
The Code requires that a conditional sentence,
ties then take appropriate steps.
standing alone, be consistent with the funda-
mental purpose and principles of sentencing. To be accepted into the program, offenders
Where a conditional sentence does not other- should meet criteria that includes the following:
wise satisfy that pre-condition, it cannot be
(i) pose no threat to the safety of the com-
supplemented with a fine (R. v. Heidarian,
munity or to others in the home;
2007 BCCA 288; leave to appeal refused, 2007
S.C.C.A. No. 69; R. v. Joe, 2005 YKCA 9 (ii) have no history or pattern of violence;
(Y.T.C.A.).
(iii) be serving a sentence less than two
(f) No Burden to Show CSO Is Inappropriate years;
There is no burden on the Crown to establish (iv) be willing to obey the rules of the pro-
that an offender should not receive a CSO. gram and accept its restrictions; and
Thus, when considering whether to impose a
(v) have a home situation suitable for the
CSO, the court will likely consider all of the ev-
program.
idence, regardless of which party ultimately

Criminal Procedure
 106

Defence counsel, before making submissions (k) Breach Hearing for CSO
on sentence, should request an adjournment to
When an offender allegedly breaches a condi-
assess the suitability of electronic monitoring.
tion of their CSO, the offender attends a hear-
The British Columbia Corrections Branch de-
ing. Usually the judge who imposed the CSO
velops policy and decides who will be placed
presides at the CSO breach hearing and deter-
on electronic monitoring, but only after offend-
mines whether the offender did indeed breach
ers are carefully assessed for technical suitabil-
the CSO.
ity.
Proceedings for hearing a breach allegation
(i) Changing Optional Conditions of a CSO
must commence within 30 days or as soon as is
Changes to the optional conditions of a CSO practicable after the offender’s arrest on the
may be proposed by any of the following: breach or issuance of a warrant or summons
(s. 742.6(3)).
(i) the CSO supervisor (s. 742.4(1));
Before the hearing, the Crown files with the
(ii) the offender (s. 742.4(5)); or
court a written report, prepared by the offend-
(iii) the Crown (s. 742.4(5)). er’s CSO supervisor, outlining the circumstanc-
es of the alleged breach. The CSO supervisor’s
The person proposing the change must give no-
report must include signed witness statements
tice to the offender, the Crown, and the court of
(s. 742.6(4); R. v. McIvor, 2006 BCCA 343).
the proposed change and the reasons for it.
Subject to a waiver by the offender, failure to
Within seven days of receiving that notice, the
comply with this requirement will render the
offender or the Crown may ask the court to hold
supervisor’s report inadmissible under
a hearing to consider the proposed change. Al-
s. 742.6(5), and the court cannot rely on it to
ternatively, the court may, on its own initiative,
find a breach.
order that a hearing be held to consider the
change (s. 742.4(2)). The CSO supervisor’s report is admissible in
evidence if the Crown has given the offender
The hearing regarding the proposed change
reasonable notice and a copy of the report
must be held within 30 days after the court
(s. 742.6(5)).
receives the notice (s. 742.4(2)). These types of
hearings can be held in chambers (s. 742.4(6)). With leave of the court, the offender may re-
quire the supervisor or any witness to attend at
At such a hearing, the court can (s. 742.4(3)):
the hearing for cross-examination (s. 742.6(8)).
(i) approve or disapprove the change; and However, often at CSO breach hearings, no
witnesses are called—the Crown simply files
(ii) make any other changes to the optional
the report, the offender admits the breach and
conditions it deems appropriate.
may testify as to a “reasonable excuse” for the
If the CSO supervisor is the one seeking the breach—and the court reevaluates the CSO.
change, and the Crown or defence does not re-
After a hearing of the allegation of breach of a
quest a hearing after receiving notice of the
CSO (s. 742.6):
proposed change, or the court does not order a
hearing within the seven days, the proposed (i) the allegation may be withdrawn;
change takes effect automatically 14 days after
(ii) the allegation may be dismissed;
the court receives the notice. The supervisor is
required to notify the offender and file proof of (iii) the court may find that the offender had
the notice with the court (s. 742.4(4)). a “reasonable excuse” for the breach; or
(j) Transfer of CSO (iv) the court may find that offender has, on a
balance of probabilities, breached the CSO
When an offender moves to a different territori-
without “reasonable excuse.”
al division from the one that made the CSO, the
court that made the CSO can transfer the CSO When the judge is satisfied, on a balance of
to a court in that other territorial division that probabilities, the onus of which is on Crown to
would have jurisdiction to make the CSO in the prove, that the offender has breached the condi-
first place. That latter court can then enforce tional sentence order without reasonable ex-
that CSO in all respects as if it was the court cuse, the judge can do any of the following
that made the CSO (s. 742.5(1)). The Attorney (s. 742.6(9)):
General of the province in which the CSO was
(i) take no action;
made must consent (s. 742.5(1.1)).
(ii) change the optional conditions;
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 107

(iii) suspend the CSO and order the offender deemed to be time served under the CSO
to serve part of the unexpired sentence (s. 742.6(16)).
in custody, and order that the CSO re-
(n) Imprisonment for New Offence While on CSO
sume on release from custody; or
If an offender who is subject to CSO is impris-
(iv) terminate the CSO and direct the of-
oned for another offence, whenever committed,
fender be committed to custody until the
the running of the CSO is suspended during the
expiration of the sentence.
period of imprisonment for that offence
When the offender breaches a condition with- (s. 742.7).
out reasonable excuse, there should be a pre-
sumption that the offender will serve the 9. Intermittent Sentence of Imprisonment
remainder of their sentence in jail (R. v. (a) Imposing an Intermittent Sentence of
Proulx, [2000] 1 S.C.R. 61; R. v. Leighton, Imprisonment
2007 BCCA 42).
When the court imposes a total sentence of im-
(l) Suspension of CSO prisonment of 90 days or less, the court may
The running of a conditional sentence is sus- order, pursuant to s. 732(1), that the sentence be
pended (“the clock stops ticking”) from the served intermittently at such times as are speci-
time the warrant or summons issues or the of- fied in the order. The sentence need not be
fender is arrested on the breach until the court completed within 90 days of the date of imposi-
determines if the offender has breached a condi- tion of sentence (R. v. Lyall (1974), 18 C.C.C.
tion (s. 742.6(10)). (2d) 381 (B.C.C.A.)). When imposing an inter-
mittent sentence, the court must have regard to
When the offender is detained in custody pend- the following (s. 732(1)):
ing the hearing of the breach allegation, the
CSO starts to run again on the date of the deten- (i) the age and character of the offender;
tion order (s. 742.6(12)). (ii) the nature of the offence;
When the offender is not detained in custody (iii) the circumstances surrounding its com-
pending the hearing of the breach allegation, mission; and
the CSO will not start to run again, but the con-
ditions of the CSO will continue to apply (iv) the availability of appropriate accom-
(s. 742.9(11)). modation to ensure compliance with the
sentence.
(m) Credit Towards CSO Pending Breach Hearing
During times when the offender is not serving
An offender may receive some credit for the their sentence in jail, the offender must comply
time between when the warrant or summons is- with the conditions prescribed in a probation
sues or the offender is arrested on the breach order (s. 732(1)(b)).
and when the court determines if the offender
has breached a condition. Such credit can be (b) Changing an Intermittent Sentence of
obtained whether the offender was in or out of Imprisonment
custody pending the breach hearing, and wheth- An offender serving an intermittent sentence
er the court found or did not find that the of- can, on notice to the prosecutor, apply to the
fender breached the CSO. However, the court that imposed the sentence to allow the of-
detention of the offender, and the determination fender to serve the sentence on consecutive
at the breach hearing, affect the amount of time days instead of intermittently (s. 732(2)).
credited (ss. 742.6(14)–(17)).
(c) Terminating an Intermittent Sentence of
Where an alleged breach is withdrawn or dis- Imprisonment
missed, or the court finds the existence of a
“reasonable excuse,” the offender will receive When a court imposes a sentence of imprison-
credit towards the time remaining on the CSO ment on an offender who is subject to an inter-
(s. 742.9(15)). mittent sentence on another offence, the
unexpired portion of the intermittent sentence is
Where the court is satisfied that the offender to be served on consecutive days, unless the
has breached the CSO without “reasonable ex- court orders otherwise (s. 732(3))
cuse,” the court still may order, in exceptional
circumstances and in the interests of justice, Where the sentence received on another offence
that some or all of the period of suspension be (either at the same time or subsequently) is a
CSO, the unexpired portion of the intermittent

Criminal Procedure
 108

sentence is not required to be served on consec- A probation order must be in addition to either
utive days under s. 732(3). A CSO is not a a fine or imprisonment, not both. Where both a
“sentence of imprisonment” for purpose of fine and imprisonment are imposed, there is no
s. 731(1) or 732(3), and intermittent sentences jurisdiction to order probation (ss. 731(1)(a)
can be effectively combined with CSOs on oth- and (b); R. v. Blacquiere (1975), 24 C.C.C. (2d)
er offences: R. v. Middleton, 2009 SCC 21. 168 (Ont. C.A.); R. v. Wright, [1982] B.C.J. No.
701 (C.A.); R. v. Bennicke, [1982] O.J. No. 116
10. Intermittent Sentence of Imprisonment, and (C.A.)).
Probation
The probation order must not exceed three
A court must order that an offender is subject to years (s. 732.2(2)(b)).
conditions of a probation order while not in con-
finement until the intermittent sentence is complete The probation order starts once the sentence of
and may order that probation is to continue for a set imprisonment expires (s. 732.2(1)(b)).
period after completion of the intermittent sentence Probation cannot be imposed on a sentence of
(s. 732(1)(b)). imprisonment for less than two years in the fol-
lowing situations:
11. Intermittent Sentence of Imprisonment, and
Fine (i) a concurrent jail sentence is imposed for
another offence and this concurrent sen-
Section 731(1)(b) of the Code allows for probation
tence is for two years or more
in addition to either a fine or imprisonment, but not
(s. 731(1)(b); R. v. Hackett (1986), 30
both. Since an intermittent sentence requires an of-
C.C.C. (3d) 159 (B.C.C.A.); R. v. Fon-
fender to be subject to a probation order while not
taine, 2004 BCCA 477; R. v. Weir, 2004
in custody, and since this probation order can ex-
BCCA 529); or
tend beyond the completion of the intermittent sen-
tence, some debate has arisen in the case law as to (ii) a consecutive jail sentence is imposed
whether an offender can receive an intermittent sen- for another offence at the same time and
tence and a fine. Given the inconsistent decisions, the cumulative or aggregate jail sentence
the best practice may be to not seek a fine with an results in the offender serving two years
intermittent sentence, and thus, avoid a possible ap- or more (R. v. Pawlak, 2005 BCCA 500;
peal of a sentence. R. v. Hackett (1986), 30 C.C.C. (3d) 159
(B.C.C.A.); R. v. Autenreith, 2004
12. Imprisonment for Two Years Less a Day, or Less BCCA 321).
(“Provincial Time”)
The phrase “imprisonment for a term not ex-
A person sentenced to imprisonment for a term of ceeding 2 years” in s. 731(1)(b) relates only to
two years less a day (or less) shall, unless a special the actual term of imprisonment imposed by a
prison is prescribed by law, be sentenced to impris- sentencing court at a single sitting. When an of-
onment in a prison or other place of confinement fender is serving a jail sentence to which a term
within the province in which that person is convict- of probation is attached, and then, before the
ed, other than a penitentiary (s. 743.1(3)). As an ex- expiration of that jail sentence, receives another
ception, when the court convicts a person for jail sentence which, in combination with the
escape from prison, the court may order the term of prior sentence, totals more than two years, the
imprisonment be served in a penitentiary, even if probation order remains valid (R. v. Knott, 2012
the time to be served is less than two years (s. 149). SCC 42).
The judge cannot designate the provincial institu- (b) Order Comes Into Force
tions where the offender will receive provincial
time. When imprisonment that is less than two years
(“provincial time”) is imposed with a probation
13. Imprisonment for Two Years Less a Day, or Less order, the probation order comes into force as
(“Provincial Time”), and Probation soon as the offender is released from prison (R.
v. Ivan, 2000 BCCA 452).
(a) Imposing “Provincial Time” Plus Probation
Order However, when the offender is released by way
of conditional release (day parole or full pa-
In addition to sentencing an offender to impris-
role), the probation order starts when the sen-
onment for a term of not more than two years,
tence of imprisonment expires rather than when
the court may direct that the offender comply
the offender receives conditional release
with the conditions prescribed in a probation
(s. 732.2(1)(b)).
order (s. 731(1)(b)).

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 109

14. Imprisonment and Fine (c) Corrections and Conditional Release Act
The following information regarding imprisonment The Corrections and Conditional Release Act,
and fine applies to all sentences of imprisonment— S.C. 1992, c. 20 (the “CCRA”) governs federal
both “provincial time” and “federal time.” time. The Prison and Reformatories Act, R.S.C.
1985, c. P–20 also has some limited applica-
When an offence does not require a minimum term
tion.
of imprisonment, a court may impose a fine on the
person (other than a corporation) convicted of the The CCRA authorizes the exchange of service
offence in addition to or instead of any other sanc- agreements between the federal government
tion that the court is authorized to impose and the province so that a person sentenced to
(s. 734(1)(a)). federal time can serve their sentence in a pro-
vincial facility and vice versa. Federal prisoners
When the offence requires a minimum term of im-
so transferred are subject to the provincial laws
prisonment for the convicted person (other than a
and rules of the provincial prison and vice ver-
corporation), the court may impose a fine in addi-
sa.
tion to the minimum term of imprisonment (the
court cannot impose a fine instead of a required When an offender receives federal time, the
minimum term of imprisonment) (s. 734(1)(b)). Correctional Service of Canada must obtain the
following information (s. 23 of the CCRA):
15. Imprisonment for a Term of Two Years or More
(“Federal Time” or “Penitentiary Time”) (i) relevant information about the offender
and the offence;
(a) Imposing Sentence
(ii) any recommendations made at the time
A person who is sentenced to two years or of sentencing or appeal;
more, or to two or more terms of less than two
years each that are to be served one after the (iii) any reports relevant to conviction or
other for a total of more than two years, must sentence that are submitted to the court;
serve the time in a penitentiary (s. 743.1). and
Once sentenced to federal time, a prisoner will (iv) any other information relevant to admin-
not be sent to a federal penitentiary for 15 days istering the sentence.
unless the prisoner agrees to be transferred ear- CSC must ensure that the information it uses is
lier (s. 12 of the CCRA). The purpose of the de- accurate, current and complete (s. 24 of the
lay is to allow the prisoner to file an appeal or CCRA). This duty exists in part because CSC is
attend to personal affairs before the transfer obliged to give to the PBC, provincial govern-
takes place. ments, provincial parole boards, police and oth-
A court that sentences or commits a person to a er authorities, any relevant information to assist
penitentiary must forward to the Correctional in decision-making, supervision or surveillance
Services of Canada (“CSC”) (s. 743.2): (s. 25 of the CCRA).
(i) its reasons and recommendations relat- (d) Eligibility for Release
ing to the sentence or committal; The CCRA sets out release eligibilities for pris-
(ii) any relevant reports that were submitted oner serving fixed sentences of federal time.
to the court; and Generally, if a federal prisoner does not get day
or full parole, they will be released after serving
(iii) any other information relevant to admin- 2/3 of their sentence (“statutory release”).
istering the sentence or committal.
Despite the CCRA, when sentencing an offend-
At the conclusion of sentencing, Crown and de- er for an offence set out in Schedule I (violent
fence counsel should make submissions con- offences) or II (serious drug and related offenc-
cerning what materials should be forwarded to es) of the CCRA, a judge may order that full pa-
CSC, including whether any parts of the mate- role eligibility be set at one-half of the sentence
rials should be deleted because they might un- or ten years, whichever is less, on consideration
fairly prejudice the administration of the of the factors in s. 743.6.
sentence.
(b) Where “Federal Time” Is Served
The judge who imposes sentence has no juris-
diction to designate the penitentiary in which
the sentence is served.

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 110

16. Imprisonment for a Term of Two Years, and first degree murder where the Court of Appeal
Probation substitutes a conviction for second degree mur-
der, the Court of Appeal may also set this pa-
(a) Imposing “Federal Time” Plus Probation Order
role ineligibility period (R. v. Kjeldsen (1980),
A probation order can only be imposed with a 53 C.C.C. (2d) 55 (Alta. C.A.), affirmed [1981]
sentence of “federal time” if that sentence is 2 S.C.R. 617).
exactly two years (s. 731(1)(b)). A probation
A jury may make a recommendation regarding
order cannot be ordered with a sentence of
the parole ineligibility period (s. 745.2 of the
“federal time” in excess of two years except
Code). This recommendation is based on the
where an offender is credited with time spent in
evidence leading to conviction, and not on fur-
pre-trial or pre-sentence custody, as this time
ther evidence or submissions from counsel re-
should not be taken into account when deter-
garding the proposed recommendations (R. v.
mining if the period of imprisonment is such
Nepoose (1988), 46 C.C.C. (3d) 421 (Alta.
that a probation order may be added (R. v.
C.A.); R. v. Poirier, 2005 CanLII 3583
Goeujon, 2006 BCCA 261; R. v. Mathieu, 2008
(Ont. C.A.)). The jury’s recommendation (if
SCC 21).
any) is a factor for the trial judge to consider
(b) Order Comes Into Force when imposing sentence, but the judge alone
bears the responsibility to impose a fit sentence
On a two-year sentence that is a federal sen-
having regard to the factors specifically set out
tence, the probation order will commence once
in s. 745.4 of the Code (R. v. Jordan (1983), 7
the sentence expires.
C.C.C. (3d) 143 (B.C.C.A.), leave to appeal re-
17. Imprisonment of Two Years or More, and Fine fused December 5, 1983; R. v. Cerra, 2004
BCCA 594, leave to appeal dismissed, [2004]
See §8.04(14). S.C.C.A. No. 15).
18. Sentences of Life Imprisonment As a general rule, the period of parole ineligi-
bility shall be for ten years, but this can be
Under the Criminal Code, life imprisonment is the
ousted by a trial judge’s determination that, ac-
maximum penalty that can be imposed for certain
cording to the criteria in s. 745.4, the offender
offences. In some cases, notably first and second
should wait a longer period before having their
degree murder, the Criminal Code provides for life
suitability to be released into the general public
imprisonment as a minimum sentence (s. 235 and
assessed (R. v. Shropshire, [1995] 4 S.C.R.
s. 745 to 746.1).
227).
Except where sentences of life imprisonment are
When a parole ineligibility period of more than
fixed by the Criminal Code, such sentences are
15 years is imposed and the offender has served
appropriate only for the worst offences committed
at least 15 years of the sentence, the offender
by the worst offenders.
may apply for judicial review to reduce the
(a) First Degree Murder and Parole Eligibility parole ineligibility period (s. 745.6; R. v.
Vaillancourt, 1989 CanLII 7181 (Ont. C.A.); R.
An individual convicted of first degree murder
v. Swietlinksi (1995), 92 C.C.C. (3d) 449
is automatically subject to a minimum of 25
(S.C.C.)). The application is heard by a jury,
years before full parole eligibility. Eligibility
which determines whether the applicant’s
for day parole and unescorted temporary ab-
number of years of imprisonment without
sences occurs at 22 years. There is no room for
eligibility for parole ought to be reduced,
submissions by counsel on sentence in these
having regard to the factors in s. 745.63(1).
circumstances. The Supreme Court of Canada
held that the combined effect of s. 231(5)(e) (c) Multiple Murders and Parole Eligibility
and s. 742(a) [now 745(a)] of the Code does not
Section 745.51 of the Criminal Code authorized
infringe ss. 7, 9 and 12 of the Canadian Charter
the court to order that an offender convicted of
of Rights and Freedoms (R. v. Luxton (1990),
multiple murders serve their periods of parole
58 C.C.C. (3d) 449 (S.C.C.); R. v. Arkell,
ineligibility consecutively rather than concur-
[1990] 2 S.C.R. 695).
rently (meaning the periods of parole ineligibil-
(b) Second Degree Murder and Parole Eligibility ity could be stacked to make the offender
ineligible for parole for longer than 25 years).
For second degree murder, the sentencing judge
In R. v. Bissonnette, 2022 SCC 23, the Supreme
has the power to set the period of parole ineli-
Court of Canada struck down s. 745.51 as un-
gibility between 10 and 25 years (s. 754(c) of
constitutional. As a result, 25 years is the max-
the Code). On an appeal from a conviction of
imum period of parole ineligibility that may
Criminal Procedure
 111

now be imposed on offenders sentenced to im- Downes (2006), 205 C.C.C. (3d) 488
prisonment for life. (Ont. C.A.)).
19. Additional Considerations for Sentences of (b) Release (Parole) Eligibility
Imprisonment The Parole Board of Canada (“PBC”) makes
(a) Credit for Pre-Sentence Custody (Dead Time) parole decisions in BC. The Correctional Ser-
vice of Canada (“CSC”) supervises parolees.
A sentence commences at the time when it is
imposed, which is after pre-sentence custody The PBC is an independent administrative tri-
has been credited (s. 719(1); R. v. Mathieu, bunal that has exclusive jurisdiction and abso-
2008 SCC 21). A court must state on the record lute discretion to:
what the sentence would have been if credit for (i) grant parole to an offender;
pre-sentence custody had not been granted
(sometimes referred to as the “effective sen- (ii) terminate or to revoke the parole or stat-
tence”); the amount of time spent in pre- utory release of an offender; and
sentence custody and credit granted for that
time; and the actual sentence imposed (iii) cancel a decision to grant parole to an
(s. 719(3.3)). However, failure to do so does not offender, or to cancel the suspension,
affect the validity of the sentence: s. 719(3.4). termination or revocation of the parole
or statutory release of an offender.
Every offender charged after February 22,
2010, when the Truth in Sentencing Act was en- This jurisdiction applies to offenders serving a
acted, is entitled to credit for each day spent in federal sentence and to offenders serving pro-
custody at a ratio of at least one day’s credit for vincial time where a provincial parole board has
every day spent in pre-sentence custody. Most not been established in a province (ss. 107(1)
offenders are given “enhanced credit” at a ratio and 108(1) of the Corrections and Conditional
of 1.5 days’ credit for every day spent in pre- Release Act, S.C. 1992, c. 20 (the “CCRA”).
sentence custody where the circumstances justi-
fy it. The maximum credit that can be given is The CCRA guides PBC policies, operations,
1.5 days for every day served: R. v. Summers, training and parole decision making and pro-
2014 SCC 26; R. v. Clarke, 2014 SCC 28; vides the legal framework for the correctional
s. 719(3); s. 719(3.1). and parole system in Canada.
The rationale for 1.5 credit is that the offender The Prisons and Reformatories Act, R.S.C.
lost eligibility for parole or early release by vir- 1985, c. P-20 (the “PRA”) also provides some
tue of being in pre-sentence custody. This is be- authority with respect to the release of provin-
cause only time after the sentence is imposed is cial and territorial offenders.
used to calculate dates for federal parole and Criminal lawyers are usually not involved in
statutory release, and gives a provincial offend- parole eligibility matters—these matters are a
er the opportunity to earn remission. Without consequence of sentencing and are generally re-
enhanced credit for time spent in pre-sentence ferred out to specialists.
custody, the offender who did not receive bail
but received statutory release after serving 2/3 (c) Concurrent Terms of Imprisonment
of his sentence would spend longer in jail than Concurrent terms of imprisonment are served at
an identical offender who received the same ef- the same time as one another. If two offences
fective sentence but did receive bail prior to be- are closely linked, concurrent sentences may be
ing sentenced. proper (R. v. Munilla (1986), 38 Man. R. 79
The Criminal Code is silent on whether credit (C.A.); R. v. Hassan, 2012 BCCA 201).
should be given for time spent on judicial inter- Generally, unless the court specifically states
im release. However, case law provides that that a sentence is consecutive or concurrent to
stringent bail conditions (such as curfew, area any outstanding sentence, the sentences must be
restrictions, and house arrest) should be seen as served concurrently (Ewing v. Mission Institu-
a mitigating factor at sentencing, rather than tion, 1994 CanLII 2390 (B.C.C.A.); R. v.
time for which credit is given based on a rigid Duguid (1953), 107 C.C.C. 310 (Ont. C.A.)).
formula. A court should consider the impact of
conditions on the offender’s liberty and look at (d) Consecutive (or Cumulative) Terms of
whether the accused was able to carry on with Imprisonment
many aspects of normal life, such as employ- Consecutive (or cumulative) terms of impris-
ment (R. v. Cuthbert, 2007 BCCA 585; R. v. onment are served one after the other. If the
charges against the offender arose out of sepa-
Criminal Procedure
 112

rate and distinct transactions, consecutive sen- Where an offender is convicted of a “serious per-
tences should be imposed (R. v. Munilla (1986), sonal injury offence” or an offence referred in
38 Man. R. 79 (C.A.); R. v. Grant, 2009 MBCA 753.1(2)(a) (specified sexual offences), and there
9). The “relevant date” for the purpose of im- are reasonable grounds to believe the offender
posing a consecutive sentence is the day of sen- might be found a dangerous offender or long-term
tencing (not the offence date or conviction date) offender, the court will grant the Crown’s applica-
(R. v. Johnson (1998), 131 C.C.C. (3d) 274 tion for a psychiatric assessment of the offender
(B.C.C.A.)). The “totality principle” requires (s. 752.1). This is the first step in any dangerous of-
that the cumulative sentence does not exceed fender or long-term offender application.
the overall culpability of the offender: R. v. M.
(a) Dangerous Offenders
(C.A.), [1996] 1 S.C.R. 500.
A trial judge’s discretion in deciding whether to
A court that sentences an offender may direct
declare an offender dangerous must be guided
that the terms of imprisonment be served one
by the fundamental purposes and principles of
after the other (consecutively) where the of-
sentencing as found in s. 718 to 718.2 of the
fences do not arise out of the same event or se-
Criminal Code (R. v. Johnson, 2003 SCC 46).
ries of events, or one of the offences was
committed while the accused was on bail or The law on dangerous offenders changed in Ju-
while fleeing from a peace officer. See ly 2, 2008, and the previous law continues to
s. 718.3(4) of the Code and s. 139 of the CCRA. apply to offenders who committed the offence
for which they are being sentenced before that
A judge may order a sentence to be served con-
date. However, most dangerous offender hear-
secutive to another sentence the judge has pre-
ings are now governed by the current legisla-
viously imposed or is imposing. However, that
tion.
judge (“judge #1”) cannot order that a sentence
be made consecutive to a sentence imposed by Under the current legislation, the court must
another judge (“judge #2”) in another case, un- declare an offender a dangerous offender when
less that sentence had already been imposed by the following criteria under s. 753(1) (a) or (b)
judge #2 at the time of the conviction in the are met:
case in which judge #1 is sentencing
(i) the offence for which the offender was
(s. 718.3(4)(a) and R. v. Paul, [1982] 1 S.C.R.
convicted is a “serious personal injury
621). This rule is important to note since ad-
offence” set out in paragraph (a) of the
journments can occur between the date of con-
definition of “serious personal injury of-
viction and the date sentence is imposed.
fence” in s. 752, and the offender consti-
Sentences for child pornography and other sex- tutes a threat to the life, safety or
ual offences against a child must run consecu- physical or mental well-being of other
tively under s. 718.3(7). persons on evidence establishing the fol-
lowing (s. 753(1)(a) and R. v. H.(M.B.)
The imposition of a sentence that is consecutive
(2004), 186 C.C.C. (3d) 62 (Ont. C.A.)):
to a life sentence is illogical (R. v. Cochrane
(1994), 88 C.C.C. (3d) 570 (B.C.C.A.)). Exces- • a pattern of repetitive behaviour that
sive sentences resulting from the accumulation shows a failure to restrain the of-
of consecutive sentences will be tempered by fender’s behaviour, and a likelihood
the principle of proportionality in circumstances of causing death, injury, or severe
where the fixed sentence begins to exceed the psychological harm;
offender’s expected remaining lifespan (R. v.
• a pattern of persistent aggressive
Stauffer, 2007 BCCA 7).
behaviour that shows a substantial
20. Dangerous Offenders and Long-Term Offenders degree of indifference to the conse-
quences to other persons;
As part of the sentencing process, the Crown may
apply to have an offender designated as a “danger- • brutal behaviour associated with the
ous offender” or a “long-term offender.” These des- offence that compels the conclusion
ignations have different consequences for sentence that the offender is unlikely to be
and are described below. Note that in determining inhibited by normal standards of be-
an appropriate sentence under the dangerous of- havioural restraint; or
fender or long-term offender scheme, s. 718.2(e) (ii) the offence for which the offender was
and Gladue apply (R. v. Boutilier, 2017 SCC 64). convicted is a “serious personal injury
offence” set out in paragraph (b) of the
definition of “serious personal injury of-
Criminal Procedure
 113

fence” in s. 752, and the offender has ing death, injury, or severe psychological harm
shown a failure to control their sexual to other persons, or by conduct in any sexual
impulses such that harm to other persons matter has shown a likelihood of causing harm
is likely (s. 753(1)(b); R. v. H.(M.B.) to other persons through similar offences).
(2004), 186 C.C.C. (3d) 62 (Ont. C.A.)). Where these criteria are not met, the court may
still find a substantial risk to reoffend: R. v.
In some cases, based on an offender’s criminal
McLeod, 1999 BCCA 347.
history, there is now a rebuttable presumption
that the criteria in s. 753(1)(a) and (b) are met. When a court finds that the criteria in
s. 753.1(1) are met, including a substantial risk
Upon designating an offender a “dangerous of-
that the offender will reoffend, it may designate
fender,” the court must impose an indeterminate
a person a long-term offender.
sentence unless there is a reasonable expecta-
tion on the evidence that a lesser measure will If a person is designated a long-term offender,
adequately protect the public from the offender the court must impose a sentence of a minimum
committing a murder or a serious personal inju- of two years’ imprisonment for the offence for
ry offence (s. 753(4.1)). If there is such a rea- which the offender was convicted and order
sonable expectation, the court may impose long-term supervision for up to ten years
either a determinate sentence of imprisonment (s. 753.1(3)).
of at least two years followed by long-term su-
When a court does not find an offender to be a
pervision of up to ten years, or a traditional sen-
long-term offender, the court shall impose a
tence for the offence committed (s. 753(4)).
sentence for the offence for which the offender
If the court does not find the offender to be a was convicted (s. 753.1(6)).
dangerous offender, the court may treat the ap-
plication as a long-term offender application [§8.05] Firearms and Weapon Prohibition
(described below) or hold another hearing for Orders
that purpose (s. 735(5)).
Firearms prohibitions can be ordered in the following
Given the matters under consideration, danger-
circumstances:
ous offender applications usually involve dis-
closure of the offender’s entire corrections and • upon sentence, pursuant to Criminal Code ss. 109
criminal history and the calling of expert psy- and 110;
chiatric/medical witnesses.
• pursuant to applications under certain sections of
(b) Long-Term Offenders the Criminal Code, such as ss. 111, 117.05,
117.011, 810, 810.01, 810.1, and 810.2;
The Crown can apply for a long-term offender
designation at the outset, or the court may im- • as part of a conditional sentence; and
pose the designation if the evidence does not
• as a term of probation.
meet the legal test for a dangerous offender des-
ignation but does meet the test for a long- term In some circumstances, the Code requires the court to
offender designation. The court may find that impose prohibition orders; in other circumstances they
an offender is a long-term if satisfied of the fol- are discretionary.
lowing:
(i) a sentence of imprisonment of two years 1. Mandatory Firearm and Weapon Prohibition
or more is appropriate for the offence Orders
for which the offender has been convict- The Criminal Code s. 109(1) requires the courts to
ed (s. 753.1(1)(a)); make prohibition orders in these circumstances:
(ii) there is a substantial risk that the of- (a) an offender is convicted of an indictable of-
fender will reoffend (s. 753.1(1)(b)); and fence for which an offender can receive a sen-
(iii) there is a reasonable possibility the risk tence of ten years or more and where violence
can eventually be controlled in the against a person was used, threatened or at-
community (s. 753.1(1)(c)). tempted;

The court must find there is a substantial risk of (b) an offender is convicted of an indictable of-
reoffending if the criteria listed in s. 753.1(2) fence where violence was used, threatened, or
are met (i.e. the offence is listed in s. 753.1(2); attempted against the person’s intimate partner,
and the offender has shown a pattern of repeti- the intimate partner’s child or parent, or anyone
tive behaviour that shows a likelihood of caus- who resides with the intimate partner.

Criminal Procedure
 114

(c) an offender is convicted of an offence under the the court must prohibit possession for life
Code of: (s. 109(3)).
(i) using a firearm or imitation firearm in 2. Discretionary Firearm and Weapon Prohibition
the commission of an offence under Orders
s. 85(1) or (2);
Unlike a mandatory prohibition order, a discretion-
(ii) possession of a prohibited or restricted ary prohibition order is not necessarily a blanket
firearm with ammunition, under prohibition. The court can pick which kinds of
s. 95(1); weapons or firearms to prohibit the offender from
(iii) weapons trafficking in s. 99(1); possessing.
(iv) possession for the purpose of weapons The Criminal Code allows a court to impose a dis-
trafficking, under s. 100(1); cretionary prohibition order in the following cir-
cumstances (s. 110(1)):
(v) making an automatic firearm, under
s. 102(1); (a) when the offender is convicted of an offence in
which violence against a person was used,
(vi) importing or exporting knowing it is un- threatened or attempted, other than an offence
authorized, under s. 103(1); or referred to in s. 109; or
(vii) criminal harassment, under s. 264; (b) when an offence was committed by an individ-
(d) an offender is convicted of an offence under the ual who was not subject to a prohibition order
Controlled Drugs and Substances Act, S.C. at the time of the offence, and which offence
1996, c. 19 (the “CDSA”) of: involved a firearm, cross-bow, prohibited
weapon, restricted weapon, prohibited device,
(i) trafficking in a controlled substance, any kind of ammunition, or an explosive sub-
under s. 5(1) of the CDSA; stance.
(ii) possession for the purpose of traffick- When determining whether a discretionary prohibi-
ing, under s. 5(2) of the CDSA; tion order should be issued, the court shall consider
(iii) importing or exporting a controlled sub- whether it is desirable, in the interests of safety of
stance, under s. 6(1) and (2) of the the offender or any person, to make such an order
CDSA; or (s. 110(1)).
(iv) producing a controlled substance, under When the court does not make a prohibition order,
s. 7(1) of the CDSA; or or makes an order prohibiting the possession of on-
ly some items, the court is required to give reasons
(e) an offender was subject to a prohibition order at (s. 110(3)).
the time that the offender committed a new
weapons or firearms offence. Discretionary orders may last for any period up to
ten years (s. 110(2)).
The length of time that a court must impose a man-
datory prohibition order depends on whether the of- 3. Preventative Firearm and Weapon Prohibition
fence is a first or subsequent offence to which Orders
s. 109(1) applies (s. 109(2)): The court may prohibit an individual from pos-
(a) For offenders who have been convicted of an sessing weapons, including firearms, without a per-
offence to which an order applies for the first son having been convicted of an offence.
time, the court must prohibit the offender from Preventative firearm and weapon applications are
possessing: rare, and beyond the scope of these materials, but
may arise in two situations: (1) on application of a
(i) prohibited firearms, restricted firearms, peace officer or firearms officer to a provincial
prohibited weapons, prohibited devices, court judge for an order prohibiting a person from
and prohibited ammunition for life; and possessing firearms and other regulated items
(ii) any firearm other than a prohibited fire- (s. 111); or (2) on application of a peace officer to a
arm, restricted firearm, and any cross- justice where an item has been seized (s. 117.05).
bow, restricted weapon, ammunition and The judge or justice must be satisfied on reasonable
explosive substance for at least grounds that it is not desirable in the interests of
10 years. safety for the person to possess the specified weap-
ons.
(b) For offenders who receive subsequent convic-
tions for an offence to which an order applies,

Criminal Procedure
 115

4. Lifting Firearm and Weapon Prohibition Orders When a DNA order is made, a sample of one or
more bodily substances (blood, hair or buccal cells)
The court may lift prohibition orders only if the
is taken and sent to the National DNA data bank of
person subject to the order can establish the follow-
Canada. The sample is processed, and a DNA pro-
ing (s. 113):
file is created and put into a database called the
(a) they require a firearm or restricted weapon for Convicted Offender Index.
sustenance hunting or employment purposes; or
2. Primary Designated Offences
(b) a prohibition order would constitute a virtual
prohibition against employment in the only vo- For two subcategories of “primary designated of-
cation open to the person. fences” a DNA order is mandatory or presumptive.
“Primary designated offences” are defined in
Section 113 has also been applied to allow an ex- s. 487.04.
ception for hunting for ceremonial purposes.
Where an accused (adult or young person) is con-
5. Surrender and Forfeiture Orders victed or discharged of one of the “primary desig-
nated offences,” listed under paragraph (a) and
When a court or “competent authority” makes a
(c.02) of s. 487.04, the court must order the taking
prohibition order, the court or “competent authori-
of a DNA sample from that offender
ty” may require the prohibited person to surrender
(s. 487.051(1)).
to a peace officer, firearms officer or chief firearms
officer (s. 114) the following: However, where an accused is convicted or
discharged of a primary designated offence under
(a) anything the order prohibits the person from
paragraph (a.1) to (c.01) and (c.03) to (d) of
possessing that the person possesses on the
s. 487.04, the court shall order the taking of a DNA
commencement of the order; and
sample unless the court is satisfied that the offender
(b) every authorization, licence and registration has established that the impact of such an order on
certificate relating to anything the order prohib- their privacy and security of the person would be
its the person from possessing that the person grossly disproportionate to the public interest in the
possesses on the commencement of the order. protection of society and the proper administration
of justice (s. 487.051(2) of the Criminal Code; R. v.
When an accused is convicted of an offence in
R.C., 2005 SCC 61).
which a weapon, an imitation firearm, a prohibited
device, ammunition or an explosive substance was 3. Secondary Designated Offences
used and that thing has been seized, the Crown
should seek a forfeiture order pursuant to s. 491. “Secondary designated offences” are defined in
This order requires that every item that is prohibited s. 487.04 of the Criminal Code.
by the prohibition order and is in the possession of If the accused is convicted, discharged, or found
the prohibited person is forfeited to His Majesty, to not criminally responsible on account of mental
dispose of or otherwise deal with these items as the disorder, of a “secondary designated offence,” the
Attorney General directs (s. 115, s. 491(1)). court may, on application by the prosecutor, order
When a prohibition order or forfeiture order is the taking of a DNA sample from that offender
made, the lawful owner or a person lawfully enti- (s. 487.051(3)(b)).
tled to possess the item covered by the order may In deciding whether or not to make such an order,
apply to have the item returned. If the item was de- the court must consider the factors listed in
stroyed, the value of the item will be paid to the s. 487.051(3) and give reasons for its decision
owner (s. 117, s. 491(2)). (s. 487.051(3); R. v. R.C., 2005 SCC 61).
[§8.06] DNA Orders 4. Collection of DNA Sample
When a court order authorizes the taking of samples
1. Generally
of DNA, the court may order the offender to report
Following conviction, the Crown may apply for an at a certain place, day and time for the samples to
order requiring that a sample of the offender’s DNA be obtained (s. 487.051(4) of the Criminal Code).
be taken. Most often the Crown makes such an ap- Samples shall be taken as authorized under the
plication during the sentencing hearing. court’s order or as soon as feasible afterwards
(s. 487.056(1) of the Criminal Code).
The Criminal Code permits a court to order the col-
lection and storage of bodily substances from cer-
tain convicted offenders. The DNA Identification
Act, S.C. 1998, c. 37 regulates their use and storage.

Criminal Procedure
 116

5. Failing to Comply With DNA Order courts to impose SOIRA orders for repeat sexual of-
fenders.
If an offender fails to appear as required by a court
order for the DNA sample, a Canada-wide warrant R. v. Ndhlovu, 2022 SCC 38, in a 5-4 ruling ren-
may issue for the offender to be arrested in order dered October 28, 2022, has altered the landscape
for the DNA samples to be taken (s. 487.0551(1) of SOIRA. The majority found that ss. 490.012 and
and (2) of the Criminal Code). 490.013(2.1) infringe s. 7 of the Charter and cannot
be saved by s. 1. The majority suspended their dec-
6. Use of DNA Information laration pronouncing s. 490.012 of no force and ef-
The samples of DNA provided by the offender can fect for one year, with prospective application. The
only be used for investigative purposes declaration striking down s. 490.013(2.1) is in im-
(s. 487.08(1), (1.1) and (2) of the Criminal Code). mediate effect and retroactive.
The information stored in the DNA data bank is not SOIRA orders have never applied to “young offend-
directly admissible in court proceedings. Should the ers” as defined by the Youth Criminal Justice Act,
identity of a suspect become known through infor- unless they received an adult sentence
mation obtained by the police from the DNA data (s. 490.011(2)). Counsel should be aware that per-
bank, the police must seize (or “re-seize”) the DNA sons may be subject to SOIRA obligations not aris-
from the offender pursuant to a DNA warrant under ing from s. 490.012 orders. For instance,
s. 487.05 in order for that DNA to be used in a amendments to the Code, SOIRA, the National De-
prosecution. fence Act, and the International Transfer of Offend-
ers Act have been made to include Canadian Forces
[§8.07] Prohibitions (s. 161) personnel convicted of sexual offences within the
military justice system in the Registry and to allow
The Criminal Code s. 161 allows a court to make vari- for the inclusion within the Registry of persons
ous ancillary orders if the offender is convicted of a sex- convicted abroad of sexual offences deemed by the
ual offence against a person who is under the age of 16. Attorney General or Minister of Justice as equiva-
Section 161 orders prohibit the offender from engaging lent to a paragraph (a) s. 490.011 designated of-
in behaviour that brings the offender into unsupervised fence and who enter or re-enter Canada after
contact with people under the age of 16. Section 161 April 15, 2011.
might include orders that the offender stay away from
2. Appeals and Termination
schoolgrounds, public parks or swimming areas, have no
unsupervised contact with persons under 16 years of age, There is a right of appeal from the imposition of a
or not use the internet except under conditions imposed SOIRA order under s. 490.012(2) (the section that
by the court. requires the court to impose an order where the
Crown proves a secondary intent). The prosecutor
[§8.08] Sex Offender Information may also appeal the refusal to make an order under
Registration Act (“SOIRA”) Orders this subsection (s. 490.014).
The offender may apply to terminate a SOIRA order
1. Purpose and Applicability of SOIRA
under s. 490.012 earlier than its term. Various time
The Sex Offender Information Registration Act periods must pass before such an application can
(“SOIRA”) came into effect December 15, 2004, es- proceed, essentially at the half point of the term of
tablishing the National Sex Offender Registry. The the order or after 20 years if the term is life:
purpose of SOIRA is “to help police services pre- s. 490.015 of the Criminal Code.
vent and investigate crimes of a sexual nature by
The court will terminate an order early if the of-
requiring the registration of certain information re-
fender has established that the impact of continuing
lating to sex offenders” (s. 2 of SOIRA). The Regis-
an order or obligation (including on their privacy or
try is maintained by the RCMP and is not
liberty) would be grossly disproportionate to the
accessible to the public.
public interest in protecting society through the ef-
Pursuant to s. 490.012(1), a court has been required fective prevention or investigation of crimes of a
to order that an offender convicted or found not sexual nature (s. 490.016 of the Criminal Code).
criminally responsible on account of mental disor-
der in relation to certain sexual offences register 3. Obligations if SOIRA Order Imposed
with SOIRA. For specified other offences in Within seven days of a s. 490.012 order, or the of-
s. 490.011(1), the Crown has been able to apply fender’s release from custody, the offender must
under s. 490.012(2) or (3) for a discretionary report to the registration centre (s. 4(1) and (2) of
SOIRA order. Section 490.013(2.1) has required SOIRA). Failure to register is an offence (s. 490.031
of the Criminal Code).
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 117

An offender must provide identifying information criminality.” Serious criminality is defined under
including name and any aliases; addresses of resi- s. 36(1)(a) as “having been convicted in Canada of
dences, places of employment or school; home an offence under an Act of Parliament punishable
phone and cell phone numbers; height; weight; and by a maximum term of imprisonment of at least ten
identifying marks. It is an offence to knowingly years, or of an offence under an Act of Parliament
provide false or misleading information under for which a term of imprisonment of more than six
s. 5(1) or s. 6(1) of SOIRA: s. 490.0311 of the months has been imposed.” For the purposes of this
Code. section, a hybrid offence is deemed to be indictable,
so the relevant maximum term for a hybrid offence
An order takes effect immediately. An offender
is the maximum term for the indictable version of
may have a reporting obligation for life, for
the offence (s. 36(3)(a)).
20 years, or for 10 years, depending on the maxi-
mum term of imprisonment, whether the offender In assessing the length of the term of imprisonment
was convicted of more than one designated offence imposed, pre-sentence custody that is expressly
in a single proceeding, and whether the offender credited towards a person’s sentence will count
had previously been subject to an order or notice of (Canada (Minister of Citizenship and Immigration)
obligation to comply with SOIRA: s. 490.013. v. Atwal, 2004 FC 7), but conditional sentence or-
ders will not (Tran v. Canada (Public Safety and
[§8.09] Immigration Consequences of Emergency Preparedness), 2017 SCC 50).
Sentencing If sentenced to a term of imprisonment in Canada of
less than six months, a permanent resident or pro-
Counsel must be aware of the possible consequences
tected person will generally have a right to appeal
under the Immigration and Refugee Protection Act, S.C.
potential loss of status for serious criminality to the
2001, c. 27 (“IRPA”) that may occur as a result of a con-
Immigration Appeal Division of the Immigration
viction and sentence. Prior to trial, sentencing, or any
and Refugee Board on equitable grounds (ss. 63 and
plea negotiations, counsel should consider consulting a
64). This right could be the most significant protec-
lawyer knowledgeable in immigration matters in order to
tion the person has from loss of status and deporta-
appropriately advise their client. It is important to find
tion from Canada.
out a client’s immigration status early in the process, as
the range of immigration consequences that an individu- Criminal procedures may also have other immigra-
al may face, particularly at sentencing, will depend on tion implications. Following certain types of con-
the individual’s status in Canada. victions, a person who is making a refugee claim
could become ineligible to make a claim, barred
Note that the consequences of a plea or sentence will
from obtaining protected person status, and subject
often be different under the immigration law of other
to removal from Canada without any assessment of
countries. If future entry into a foreign jurisdiction is
their risk of persecution (ss. 101, 112, 113).
important to a client, then a referral to a competent prac-
titioner of foreign law is appropriate. Certain convictions or sentences could affect a per-
son’s ability to sponsor relatives, eligibility to apply
There are essentially three relevant levels of immigration
for citizenship, or access to travel documents.
status in Canada: citizen, permanent resident or protect-
ed person, and foreign national. Admissions or findings of fact in criminal matters
could also have serious implications in immigration
1. Citizen processes. Inadmissibility on security grounds or on
A citizen has the most stable status, and under our grounds of organized criminality (ss. 34 and 37), for
current law the only basis upon which citizenship example, does not require a conviction and could be
can be revoked is if it was originally obtained under based on admissions made in criminal processes.
false pretenses. Findings of fact in a criminal court will also be giv-
en significant weight in equitable appeals or other
While a citizen’s status will not be placed at risk by immigration proceedings.
criminal processes, there can be other immigration
implications in certain situations, such as the citizen 3. Foreign National
losing passport privileges or becoming ineligible to
A foreign national is any person who is not a Cana-
sponsor relatives.
dian citizen or a permanent resident, and has the
2. Permanent Resident or Protected Person most precarious immigration status. Foreign nation-
als require authorization to enter Canada and to en-
The status of permanent resident or protected per- gage in activities such as working or studying. A
son is relatively secure but can be lost in a defined single criminal conviction for any hybrid offence
set of circumstances, including if a permanent resi- under an Act of Parliament, even if prosecuted
dent is found inadmissible to Canada for “serious
Criminal Procedure
 118

summarily, will render a foreign national inadmis- Schedule 1 to the CRA (sexual offences in relation
sible for criminality and subject to potential depor- to children) are not eligible for a record suspension
tation (s. 36(2)(a)). unless the offender satisfies the Board that they
were not in a position of trust or authority towards
If a sentencing judge concludes that a sentence is in
the victim and the victim was not in a relationship
the appropriate range for the offence, the judge
of dependency with them, the offender was less
should consider collateral immigration consequenc-
than five years older than the victim, and there was
es. However, the risk of deportation cannot justify a
no violence, intimidation or coercion used or threat-
sentence that is inconsistent with the fundamental
ened (s. 4(3)(a)-(c)).
purpose and principles of sentencing and should not
be used to circumvent the provisions and policies of The Board may order a record suspension upon be-
the IRPA (R. v. Pham, 2013 SCC 15). ing satisfied that the applicant was of good conduct
and not convicted of an offence during the applica-
Post-conviction relief can be sought through the
ble waiting period. Additional criteria apply if the
pardon or record suspension process, or in the ap-
offence falls under s. 4(1)(a) of the CRA (primarily
pellate courts—for example, by challenging the va-
indictable offences). The Board must also be satis-
lidity of the conviction (R. v. Reid, 2017 BCCA 53;
fied that the suspension would provide a measura-
R. v. Agbor, 2010 BCCA 278), seeking to withdraw
ble benefit to the applicant, sustain rehabilitation,
a guilty plea (R. v. Wong, 2018 SCC 25), or pursu-
and not bring the administration of justice into dis-
ing a sentence appeal (Pham, supra).
repute (s. 4.1(1)(b), 2 and 3).
[§8.10] Record Suspensions and Pardons A record suspension does not wipe out a criminal
conviction, but it removes most disqualifications
1. Record Suspensions imposed as a result of a conviction. Some preventa-
tive obligations and disqualifications cannot be re-
An offender may seek to minimize the continuing
moved by a record suspension (s. 2.3(b) of the
impact of a past criminal conviction by seeking a
CRA), including various obligations to comply with
record suspension pursuant to the Criminal Records
SOIRA and prohibitions under s. 161 of the Code.
Act, R.S.C. 1985, c. C-47 (the “CRA”).
(However, a person can also apply to terminate
Applications for record suspensions are made to the their SOIRA obligations: s. 490.015 of the Code.)
Parole Board of Canada. Depending upon the nature
Note as well that whether a record suspension will
of the conviction, a person must wait five years fol-
allow a person to enter another country is a matter
lowing a summary conviction or ten years follow-
of the law of that other country and not Canadian
ing a conviction pursued by indictment before
law.
applying (s. 4(1)(a) and (b) of the CRA).2
A record suspension may be revoked, within the
Persons who have been convicted of an offence in
discretion of the Board, as set out in s. 7 of the
Canada under a federal act or regulation, or a Cana-
CRA. It also automatically ceases to have effect in
dian offender found guilty of an offence in another
the circumstances described in s. 7.2 of the CRA,
country and transferred to Canada under the Inter-
such as if the person is subsequently convicted of
national Transfer of Offenders Act, may apply for a
an indictable offence under a federal statute or regu-
record suspension (s. 3 of the CRA), unless they are
lation.
ineligible.
Some offenders are permanently ineligible for a 2. Pardons
record suspension. For instance, a person is perma-
As an alternative to a record suspension, and as an
nently ineligible if they were convicted of more
exceptional remedy, a person convicted of a federal
than three offences prosecuted by indictment or
offence may apply for a pardon on the basis of
subject to a maximum punishment of imprisonment
clemency under the Criminal Code (s. 748;
for life, and for each was sentenced to imprison-
s. 748.1) or under the royal prerogative of mercy.
ment for two years or more (s. 4(2)(a),(b) of the
The application is made to the Parole Board of
CRA). Persons who committed an offence listed in
Canada.

2 As a result of Parliament’s amendments to the CRA in 2019,

Canadians with criminal records for simple possession of canna-
bis can apply for a record suspension with no mandatory waiting
period or cost.

Criminal Procedure
 119
guilty to a combination of both summary as well as
Chapter 9 indicted offences and is appealing the sentence, the
best approach is to have all matters heard in the
Court of Appeal pursuant to s. 675(1.1) of the
Appeals Criminal Code.
Appeals and reviews for young persons convicted
of offences are dealt with in Chapter 7, §7.09.
Appeals: Summary Conviction Offences1 When an appeal is filed, the oral hearing will ordi-
narily be set for a morning or afternoon court sitting
[§9.01] Legal Framework (or portion thereof). If more time is required, this
may result in a longer wait for a hearing date.
A single judge of the Supreme Court hears appeals of
offences that are prosecuted summarily, and of offences Pursuant to s. 814(3) of the Criminal Code, the ap-
prosecuted under provincial statutes and municipal peal will be heard in the Supreme Court closest to
by-laws. The Provincial Crown is the respondent for the Provincial Court where the adjudication under
Criminal Code offences, and the Federal Crown (PPSC) appeal was made. An application may be made un-
for those under the Controlled Drugs and Substances Act der that same section to move the hearing to another
(and other Federal Crown jurisdiction statutes). By-law courthouse.
offences are handled by legal counsel for the city.
2. Documents and Timelines
The relevant law and procedure for summary conviction
appeals brought for criminal matters is found in ss. 812– Appeals are commenced by filing six copies of the
838 of the Criminal Code and under Rule 6 of the Crim- notice of appeal (Form 3 Defence, Form 4 Crown)
inal Rules of the Supreme Court of British Columbia (the at the appropriate registry. “Registry” means an of-
“Rules”). The Rules also include boilerplate forms that fice of the appeal court in the judicial district near-
should be used in drafting the applicable documents. est to the place where the trial was held (Rule 6(1)).
Parts of sections 683–689 of the Criminal Code apply to If the defence appeals, the appeal must be filed
summary conviction appeals (s. 822). This includes ap- within 30 days after the order under appeal has been
plications for the appointment of counsel pursuant to pronounced, or within 30 days after the sentence
s. 684 of the Criminal Code. has been imposed (Rule 6(2)). The registry clerk
forwards a copy of the notice of appeal to the
Sections 101 to 130 of the Offence Act govern summary Crown. If the accused was convicted, the defence
matters under provincial statutes (for example, convic- may commence an appeal on that conviction before
tions under the Motor Vehicle Act). Section 109 of the the sentence is imposed (R. v. Benson, 1978 CanLII
Offence Act incorporates parts of ss. 683–689 of the 2365 (B.C.C.A.)).
Criminal Code into Offence Act appeals. Where the Of-
fence Act is silent on a given point, s. 133 of that legisla- If the Crown appeals, the appeal must be filed and
tion makes the Criminal Code provisions on summary served within 30 days after the order under appeal
conviction applicable. has been pronounced (Rule 6(3)). The Crown must
serve the defendant personally or, if necessary, ap-
[§9.02] Procedure ply under Rule 6(4)(c) for directions from the court
for alternative service, or obtain an order for substi-
1. Jurisdiction tuted service if the accused is evading service
(Rule 6(4)(d)).
Determining whether to file a criminal appeal in the
Supreme Court or the Court of Appeal is straight- The date for hearing the appeal can be fixed when
forward. The appellate jurisdiction of the Supreme the documents are filed, or soon after. Counsel must
Court is limited to those matters prosecuted sum- provide available dates to Supreme Court Schedul-
marily under Part XXVII of the Criminal Code. If ing, which is distinct from the registry staff, alt-
the Crown elected to proceed by way of indictment hough in some court locations they may be close to
on a hybrid offence, the appeal is made to the Court each other. A hearing date must be within six
of Appeal. However, when an accused has pleaded months from the date the appeal is filed. Within that
six-month period, the date may be changed with
1
agreement of counsel, confirmed by filing a requisi-
Revised by Nicholas Reithmeier, Crown Counsel, Summary
Conviction Appeals, New Westminster, in February 2021, Au-
tion. Dates beyond the six-month period can only
gust 2018 and 2016. Previously revised by John Caldwell be set with leave of the court (Rule 6(11)), which
(2010); Lisa Falloon (2009); Gillian Parsons (2006); Anita would be done through an in-court application to a
Ghatak (2005); Gail C. Banning (2004); Adrienne Lee (2002); Supreme Court judge.
K. Angela White (1998–2001); Sandra Dworkin (1996 and
1997); and Suzanne Williams (1995).

Criminal Procedure
 120
Most appeals are argued on the transcript. Conse- Unlike appeals in the Court of Appeal, there is no
quently, within 14 days of serving the notice of ap- requirement for appeal books to be filed in sum-
peal, the Rules stipulate that the appellant must fur- mary conviction appeals. However, it will usually
nish proof (satisfactory to the registrar) that tran- fall on counsel to arrange for all exhibits used in tri-
scripts have been ordered (Rule 6(5)). If the appeal al and sentencing to be transferred from the Provin-
is from a conviction (i.e. the appellant says they cial Court registry to the Supreme Court registry
were wrongfully convicted), the evidence and rea- where the appeal has been filed.
sons for judgment are required. Submissions of
Although all these foregoing provisions are written
counsel are not required as per the Rules, but can be
as mandatory, in practice, many of them (other than
helpful. In contrast, an appeal of a sentence (i.e. the
Rule 6(2) and (3)) are rarely strictly enforced. The
appellant says the sentence is improper) must in-
deadlines that follow the filing of the notice of
clude submissions by counsel. The original and one
appeal will frequently be given latitude through the
copy of the required transcripts and reasons for
agreement of counsel.
judgment must be filed and served within 30 days
(sentence appeals) or 45 days (all other appeals) of An appeal may be abandoned by filing a notice in
service of the notice of appeal (Rule 6(7)). Form 5, or by speaking to the matter in court.
Not later than 30 days before the hearing, the appel- Rule 6 (subrules (2)–(22)) provides that the re-
lant must file a statement of argument and serve one spondent or the registrar may apply for dismissal of
copy on the respondent (Rule 6(14)). The appel- the appeal if the appellant fails to pursue the appeal
lant’s statement must be concise and must include diligently or fails to comply with the Rules.
the circumstances, relevant facts, and points of law
and fact to be argued (Rule 6(15)). 3. Extension of Time to Appeal
The respondent must then file a response not later Applications to file a notice of appeal outside of the
than 14 days before the hearing (Rule 6(14)). The 30-day limitation period may be made pursuant to
respondent’s statement must indicate which por- Rule 6(25) to a Supreme Court judge. The legal
tions of the appellant’s circumstances and facts are principles governing an application for an extension
accepted, state the respondent’s version of the cir- of time are well established and were succinctly
cumstances and facts where there is disagreement, stated in R. v. Khungay, 2020 BCCA 269:
and include any additional circumstances or facts to [8] A justice of this Court may extend the time to
be relied upon. In addition, the respondent must file a notice of appeal or application for leave to
state a position about the points of law contained in appeal: Court of Appeal Act, …. The criteria appli-
the appellant’s argument and state any additional cable to granting an extension of time are found in
points to be argued (Rule 6(16)). Davies v. C.I.B.C. (1987), 1987 CanLII 2608
(B.C.C.A.), 15 B.C.L.R. (2d) 256 at 260 (C.A.)
Though not required by the Rules, three bound cop- and are summarized as follows:
ies of all case law referred to in the statement of ar- 1) Was there a bona fide intention to appeal?
gument can also be filed. A modern approach is to
hyperlink the cited cases within a PDF of the argu- 2) When were the respondents informed of the in-
ment and forward this to Supreme Court Schedul- tention?
ing, who in turn forwards it to the judge assigned to 3) Would the respondents be unduly prejudiced by
the appeal. If counsel are referring to many of the an extension of time?
same cases, they should consider preparing and fil- 4) Is there merit in the appeal?
ing a joint book of authorities. 5) Is it in the interests of justice that an extension be
A statement of argument is not required if the ap- granted?
pellant is unrepresented (Rule 6(19)(a)) or if the ap- [9] In Davies, Seaton J.A. for the Court said the
peal is from sentence only (Rule 6(14)). In sentence fifth factor “encompasses” the other factors and
appeals, however, it is useful to file a brief or mem- “states the decisive question” (at 260).
orandum of argument setting out the party’s posi- …
tion. It is also very useful for the Crown to file an [10] These same factors apply in the criminal con-
argument when the appellant is self-represented. text: R. v. Smith, 1990 CanLII 1028 (B.C.C.A.) at
All statements of argument must refer to the tran- 2-3.
script and list the authorities relied upon. Refer- See also the summary of this law in R. v. Vinet,
ences to authorities should include the full citation. 2011 BCSC 1928 at para. 15. As can be seen from
The statement of argument must be on 8 1/2 x 11- Vinet, time is of the essence when it comes to com-
inch paper, be double-spaced, have consecutively plying with the Rules for commencing an appeal,
numbered paragraphs, and not exceed 20 pages in particularly if the Crown is appealing. The court
length (Rule 6(18)). may give greater latitude to defence applications,

Criminal Procedure
 121
but all efforts should be made to comply with Code, in force as of December 18, 2019, require the
Rules 6(2) and (3). court to impose, as a condition of release, a date for the
accused to surrender themselves into custody (s. 816(1)).
4. Pre-Hearing Conferences and Applications for
Directions Note that jail sentences in summary matters are typically
shorter than for indictable offences. The fact that an ap-
A pre-hearing conference may be held pursuant to pellant may have served most or all of a sentence before
Rule 6(12) and (13). Rule 6(34) also allows either an appeal is heard is often a significant factor that the
party to apply for directions for any matter not pro- court will consider. If the appellant is refused bail pend-
vided for in Rule 6. It may be prudent to use these ing appeal, then there is a strong practical purpose in
provisions if the appeal deals with a complex ques- bringing the appeal promptly.
tion such as the ineffective assistance of counsel or
an application to adduce fresh evidence. For the [§9.05] Hearing the Appeal
former issue, while the Court of Appeal has a Prac-
tice Directive to help the parties navigate such liti- 1. Grounds of Appeal (see also §9.10)
gation, the Supreme Court does not, but can adopt
the steps set out within the higher Court’s directive. The bases on which an appeal will be allowed or
dismissed are in s. 686 of the Criminal Code. Be-
[§9.03] Uncommon Forms of Appeal cause ss. 683–689 apply to appeals taken under
s. 813, the grounds of appeal are virtually identical
Most summary conviction appeals are launched under to those outlined later in this chapter in §9.10.
s. 813. Some other sections, however, might be used. One exception is that, while there is no appeal to
Section 822(4) is the basis for seeking a trial de novo the Court of Appeal from findings of fact, the
(new trial) in the Supreme Court (s. 822(4)). An appeal Crown may appeal questions of fact in the Supreme
may be allowed “because of the condition of the record,” Court (R. v. Bassi, 2019 BCSC 1224 at para. 16).
or for any other reason where the interests of justice so A second distinction is that the Court of Appeal
require. In practice, this section is rarely invoked (R. v. must grant leave to appeal in some circumstances
Louis, 2014 BCSC 1029). It might be used if there was a (for instance, in sentence appeals), while s. 813 of
malfunction in the recording equipment at trial. the Criminal Code gives both the defence and the
Section 830 provides that any party may appeal against a Crown a right of appeal in the Supreme Court.
“conviction, judgment, verdict of acquittal or verdict of
2. The Hearing
not criminally responsible on account of mental disorder
or of unfit to stand trial or other final order or determina- Although written submissions are made in advance,
tion of a summary conviction court.” This section gives there is an oral hearing for all appeals. Counsel are
the Crown a more expansive scope of appeal than that required to gown for the hearing. A party to the ap-
provided under s. 813(b). peal who is represented by counsel need not appear
in person at the hearing, unless there is an order
Section 830 sets out three grounds for appeal:
compelling that party to appear. Personal attend-
(a) it is erroneous in point of law; ance will usually be required if the party is at large
on a bail order pending appeal or if there is a matter
(b) it is in excess of jurisdiction; or
that has been stayed pending appeal.
(c) it constitutes a refusal or failure to exercise juris-
Because the judge will typically only be assigned to
diction.
the summary offence appeal the day prior to the
The court’s powers under s. 830 are set out in s. 834: the oral hearing, counsel should not assume that the
court can affirm, reverse or modify the conviction, judge has had the opportunity to review all the filed
judgment, verdict, or other final order or determination; material in detail, or at all.
or it can remit the matter to the summary conviction
The appellant will start and should not assume that
court accompanied by the opinion of the appeal court.
there will be an opportunity to reply following the
respondent’s submissions.
[§9.04] Bail Pending Appeal
The court may give reasons from the bench the day
An appellant may apply for bail pending appeal under of the hearing, or may reserve judgment.
s. 816. Unlike s. 679 releases (by the Court of Appeal),
s. 816 does not set out what the court must consider [§9.06] Orders
when determining if the applicant should be released.
However, the common law has incorporated the consid- On defence appeals, the summary conviction appeal
erations under s. 679 (R. v. Gill, 2010 BCSC 1987) (fur- court may dismiss the appeal, allow the appeal and order
ther described in §9.11). Amendments to the Criminal a new trial, or allow the appeal and enter an acquittal.

Criminal Procedure
 122
On Crown appeals, the court may dismiss the appeal, To avoid the unnecessary bifurcation of appeals, when
allow the appeal and order a new trial, or allow the ap- summary conviction offences are tried with indictable
peal, set aside the acquittal and enter a conviction. The offences, and the Crown or defence wants to launch ap-
latter order will only be made if the Crown can satisfy peals on both, Part XXI applies if the conditions set out
the court that all the findings necessary for a conviction in ss. 675 (1.1) and 676 (1.1) of the Criminal Code are
were made in the trial court (R. v. Cassidy (1989), 50 satisfied. In that event, the appeals relating to both the
C.C.C. (3d) 193 (S.C.C.)). summary conviction and indictable offences are “consol-
idated” and heard in the Court of Appeal. If these provi-
A successful appeal might result in remitting the matter
sions do not apply, a party wanting to appeal from a
back to Provincial Court. If the Crown is seeking deten-
conviction, acquittal or sentence imposed with respect to
tion or conditions of release, the Crown can argue for
a summary conviction offence, and a conviction, acquit-
either on the date of the appeal judgment, applying
tal or sentence imposed for an indictable offence, if
s. 821 of the Criminal Code.
those offences were tried at the same time, must pursue
An order form is usually filed with the registry after the appeals in both the Supreme Court and Court of Appeal.
conclusion of the appeal. The practice is for the Crown If indictable and summary conviction matters are consol-
to prepare and file the order regardless of whether the idated for appeal purposes, leave with respect to the
Crown is the successful party. summary conviction offences, as required by s. 839(1) of
the Criminal Code, is still necessary (R. v. F.M., 1999
[§9.07] Further Appeals for Summary BCCA 443 (Chambers)).
Convictions Appellate procedure for young offenders is governed, in
part, by s. 37 of the Youth Criminal Justice Act. See
An appeal from the judgment of the summary conviction
Chapter 7, §7.09.
appeal court may be taken to the Court of Appeal on a
question of law alone, with leave of a judge of the Court When preparing appeal documents, pay close attention
of Appeal (s. 839). to the requirements of the Criminal Appeal Rules, 1986.
A “checklist to assist in the filing of appeal books and
__________ transcripts,” which details common shortcomings rang-
ing from illegible photocopies to wrongly coloured co-
vers on transcripts and appeal books, is available at the
Appeals: Indictable Offences2 registry. The civil rules requiring approval of the tran-
scripts and appeal books before they are filed do not ap-
[§9.08] Governing Provisions ply to criminal matters. Counsel are responsible, howev-
er, for filing complete materials to support the grounds
All indictable offences are appealed directly to the Court of appeal. E-filing of criminal appeals documents is en-
of Appeal. The relevant law and procedure is found in couraged (Registrar’s Filing Directive (18 July 2022)).
Part XXI of the Criminal Code (Appeals—Indictable
All appeals against conviction and acquittal are now sub-
Offences) and the Criminal Appeal Rules, 1986.
ject to specific filing deadlines. See Criminal Convic-
The Court of Appeal has no inherent jurisdiction to hear tion/Acquittal Appeals Timeline (Criminal Practice Di-
appeals or grant remedies. Its jurisdiction and powers are rective, 13 January 2014). Barring exceptional circum-
restricted to those specifically conferred by statute. stances, the aim is to ensure that such appeals are heard
within a year of the filing of the notice of appeal.
Where an offence is pursued by indictment, appeals may
arise from the trial court’s decisions to convict, sentence When appearing before the Court of Appeal, counsel
or acquit (including a stay of proceedings). If the pro- should first review Appearing Before the Court (Civil
ceedings were by indictment, but the conviction in ques- and Criminal Practice Directive, 20 October 2022) for
tion was for an included offence punishable on summary useful information on in-court etiquette, as well as other
conviction (see s. 662 of the Criminal Code), the appeal Practice Directives.
arises out of a “proceeding by indictment” within the
meaning of s. 675 of the Criminal Code, and Part XXI of [§9.09] Notice of Appeal
the Criminal Code applies. The Criminal Code does not
provide for appeals from interlocutory rulings, although The proper forms to use in filing the notice of appeal, or
such rulings may give rise to appeal at the conclusion of notice of application for leave to appeal are prescribed in
the trial. the Criminal Appeal Rules. Five copies should be filed
with the registry. The notice of appeal, whether it be
2
Updated by John Caldwell, Crown Counsel, Vancouver, in from conviction, sentence, or both, must be filed 30 days
January 2021 and September 2018. Previously reviewed by Mi- from the pronouncement of sentence. If the Crown ap-
chael J. Brundrett (2008, 2010, 2012, and 2016); Gregory J. peals, the notice of appeal must be filed within 30 days
Fitch (1997–2008); Kenneth Madsen (2006); and Alexander after the pronouncement of the order under appeal
Budlovsky (1994 and 1996). (Rules 3, 4 and 5). If a notice of appeal is not filed with-
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 123
in 30 days, an application to extend time to appeal must tence asking for the sentence to be increased (R. v.
be filed—see §9.12 of this chapter. Hill (1975), 23 C.C.C. (2d) 321 (S.C.C.)). The poli-
cy of the Court of Appeal, however, is that it will
The Court of Appeal registry serves the notice of appeal
not consider increasing the sentence unless the
on Crown counsel. Counsel for the appellant must ar-
Crown has given notice to the appellant that an in-
range service on the Crown of all other documents, in-
crease in the sentence will be sought. This is a pow-
cluding documents related to applications for bail and
er that is rarely exercised by the Court of Appeal.
other interlocutory matters.
Since September 7, 2010, when a notice of appeal [§9.11] Bail Pending Appeal
against conviction or acquittal is filed, the registry will
prepare and send a “Criminal Appeal Filing Schedule The law governing applications for bail pending appeal
Advisory Letter” to the parties or their counsel. This let- is set out in s. 679 of the Criminal Code. Pursuant to
ter sets out the standard deadlines that govern the case. s. 679(5), Parliament requires that the court impose a
The registrar will monitor the filing dates and will con- surrender date as a condition of a release order whenever
tact counsel if a filing date is missed. an appellant is released on bail pending appeal.

[§9.10] Grounds of Appeal 1. Bail Pending Appeal From Conviction

The Criminal Code states that an appellant appeal-
The provisions discussed below are the typical grounds ing conviction may be released if the notice of ap-
of appeal. Provisions regarding dangerous and long-term peal (or notice of application for leave to appeal)
offender proceedings (s. 759 of the Criminal Code), ex- has been filed and the appellant satisfies the court
traordinary remedies (s. 784), and contempt proceedings as to specific concerns:
(s. 10) are not discussed in this chapter.
(a) the appeal or application for leave to appeal is
1. From Conviction not frivolous (s. 679(3)(a));
The accused may appeal (without leave) a convic- (b) the appellant will surrender themselves into
tion on any ground of appeal that involves a ques- custody in accordance with the terms of the
tion of law alone (s. 675(1)(a)(i)). The accused may order (s. 679(3)(b)); and
appeal (with leave) on any ground of appeal that in-
(c) the appellant’s detention is not necessary in
volves a question of mixed law and fact
the public interest (s. 679(3)(c)).
(s. 675(1)(a)(ii)), or on any other sufficient ground
(s. 675(1)(a)(iii)). If the applicant satisfies the court as to the first two
criteria, the court will consider the public interest
2. From Acquittal question from two angles: public safety and public
The Crown can only appeal on a ground of law confidence in the administration of justice. If the
alone (s. 676(1)(a)). It can be challenging applicant satisfies the court that granting bail would
determining what is a question of law alone and not compromise public safety, then the court will
what is a question of mixed law and fact. There are weigh the public interest in enforcing the verdict
many cases that distinguish between questions of (which could be weighted more heavily in cases of
law alone and other kinds of questions: see, for serious crimes) against the public interest in review-
example, R. v. Biniaris, 2000 SCC 15; and R. v. ing the conviction for serious error: R v. Oland,
J.M.H., 2011 SCC 45. 2017 SCC 17.

3. From Sentence 2. Bail Pending Appeal From Sentence

The accused or the Crown may apply for leave to The Criminal Code ss. 679(1) and (4) set conditions
appeal sentence, saying the sentence imposed by the for release of an applicant appealing a sentence:
trial court was unfit (s. 687). “Sentence” is defined (a) leave to appeal has been granted;
in s. 673. The Supreme Court of Canada recently
confirmed the standard for appellate review of a (b) the appeal has sufficient merit that, in the cir-
sentence in R. v. Friesen, 2020 SCC 9 at para. 26: cumstances, it would cause unnecessary hard-
ship were the appellant detained in custody;
As this Court confirmed in Lacasse, an appellate
court can only intervene to vary a sentence if (1) (c) the appellant will surrender themselves into
the sentence is demonstrably unfit (para. 41), or custody in accordance with the terms of the
(2) the sentencing judge made an error in princi- order; and
ple that had an impact on the sentence (para. 44).
(d) the appellant’s detention is not necessary in
Once the sentence is put in issue by an accused, the the public interest.
court has jurisdiction to increase the sentence, even
if the Crown has not filed a cross appeal on sen-
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 124
This is a more stringent test than the test for bail book and deliver one copy of each to the respondent
pending appeal of a conviction. The court may set within 60 days after filing the notice of appeal. The form
down an early hearing date for an appeal from sen- and content of transcripts and appeal books is addressed
tence rather than release the applicant on bail. in Rule 8 and Forms 4 and 5. Counsel are directed by
Rule 9 to attempt to reduce the size of the transcript and
3. Review of Initial Decision appeal book by excluding exhibits and/or evidence that
A judge’s decision under s. 679 may, on the direc- is unnecessary for a proper hearing of the appeal. Writ-
tion of the Chief Justice of the Court of Appeal, be ten confirmation of the request for transcripts and appeal
reviewed by that court (s. 680 and Rule 20). books must be filed with the registry within four weeks
of the notice of appeal being filed. See Criminal Convic-
4. Bail Pending New Trial tion/Acquittal Appeals Timeline (Criminal Practice Di-
rective, 13 January 2014).
When either the Court of Appeal or the Supreme
Court of Canada orders a new trial, the pre-trial bail The time required to prepare transcripts and appeal
provisions of the Criminal Code apply (s. 515 or books sometimes makes it impossible to comply with the
522) except that those powers are exercised by a 60-day period set out in Rule 7. While some delay may
judge of the Court of Appeal (s. 679(7.1)). be forgiven, an appellant who fails to file transcripts and
appeal books within a reasonable time risks facing an
[§9.12] Extension of Time to File application by the respondent to dismiss the appeal for
want of prosecution (Rule 13(1)), or a registrar’s refer-
Extension of time is also discussed in §9.02. ence (Rule 13(3)), which obliges counsel to appear be-
fore the court or a justice to explain the failure to dili-
Rule 3 of the Criminal Appeal Rules, 1986 provides that
gently pursue the appeal or comply with the filing re-
a person appealing against conviction, sentence or both,
quirements set out in the Criminal Appeal Rules, 1986.
shall, within 30 days after the imposition of the sentence,
commence the appeal by filing an original and four cop- For relatively straightforward sentence appeals, the
ies of the notice of appeal. If the prosecutor wants to ap- Court of Appeal registry will typically order the neces-
peal, the notice of appeal must be filed within 30 days sary transcripts so long as the proceedings are not undu-
after the order under appeal in pronounced (Rule 4). ly lengthy. However, for sentence appeals involving
more protracted proceedings, or appeals against both
If the 30 days expires, the appellant must file (in Form 7)
conviction and sentence, responsibility for furnishing the
a notice of application seeking to extend time for filing
necessary transcripts will fall to the appellant.
the notice of appeal. Granting an extension of time is at
the court’s discretion. The appellant must establish “spe-
[§9.14] Factums
cial circumstances” for the extension. The appellant
must file an affidavit establishing a bona fide intention
Factums must be prepared in Form 6 (of the Criminal
to appeal within the appeal period and setting out a meri-
Appeal Rules, 1986). The appellant’s factum is bound
torious basis for the appeal. The affidavit should explain
with a buff (beige) cover; the respondent’s factum is
reasons for the delay (R. v. Roberge, 2005 SCC 48; R. v.
bound with a green cover.
Scheller (No. 2) (1976), 32 C.C.C. (2d) 286 (Ont. C.A);
R. v. Smith, [1990] B.C.J. No. 2933 (C.A.)). The Court of Appeal has said that, absent exceptional
circumstances, factums should not exceed 30 pages:
If the delay in filing the notice of appeal is systemic and
Chief Mountain v. Canada (A.G.), 2012 BCCA 69
flows from necessary steps taken by Legal Aid BC to
(Chambers). In practice, the registry will not accept a
determine whether to fund the appeal, an affidavit in
factum longer than 30 pages without the approval of the
support of the extension application may be obtained
registrar or a judge of the court.
from Legal Aid BC’s Appeals Coordinator.
See Citation of Authorities (Criminal Practice Directive,
An application for extension of time may be made on
18 July 2022, on the BC Court of Appeal website) for
two clear days’ notice (s. 678(2) of the Criminal Code
information about how to cite authorities.
and Rules 16 and 17). The application for extension is
usually addressed when the appeal is heard. The exten- The appellant’s factum must be filed within 16 weeks of
sion application may be heard in advance of the appeal the date the transcripts and appeal books are filed. If the
where it will be opposed or will be time-consuming, or appellant misses the factum filing deadline, they will be
where there are matters (for example, bail) that must be expected to appear at a “compliance hearing” (usually
dealt with before the hearing date of the appeal. scheduled for one week after the due date for the filing),
to canvass reasons for the delay and a revised filing
[§9.13] Transcripts and Appeal Books schedule. The respondent’s factum must be filed within
18 weeks of the appellant’s factum being filed and not
For conviction appeals, an appellant is required by less than six weeks before the hearing date. A reply fac-
Rule 7 to file four copies of the transcript and appeal tum (if any) is filed not less than five weeks before the

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 125
hearing. See Criminal Conviction/Acquittal Appeals or the trial judge erred on a point of law, or there
Timeline (Criminal Practice Directive, 13 January 2014). was a miscarriage of justice. These errors are ex-
plained below in further detail.
For sentence appeals, arguments are limited to eight
pages and are filed three weeks (appellant) and two (a) Verdict is unreasonable or cannot be supported
weeks (respondent) before the hearing date. See the by the evidence
practice directive entitled Sentence Appeals (Criminal
The proper test is “whether the verdict is one
Practice Directive, 11 March 2016) for the correct form,
that a properly instructed jury acting judicially
content and filing rules for written argument.
could reasonably have rendered” (R. v. Yebes
(1987), 36 C.C.C. (3d) 417 (S.C.C.); Biniaris).
[§9.15] Abandonment When applying the test, an appellate court
must engage in a thorough re-examination of
An appellant may abandon an appeal by informing the
the evidence and bring to bear the weight of its
court in person, or through counsel, of an intention to
judicial experience to decide whether, on all
abandon the appeal, or by signing and filing a notice of
the evidence, the verdict is a reasonable one.
abandonment in Form 11. When the appellant (as op-
posed to counsel) personally signs the notice of aban- It is not sufficient for the reviewing court to
donment, their signature must be witnessed (Rule 14). simply take a different view of the evidence
than the trier of fact. Nor is it sufficient for the
[§9.16] Setting Down the Hearing appeal court to refer to a vague unease or a
lingering doubt based on its own review of the
For appeals against conviction or acquittal, see the Crim- evidence.
inal Conviction/Acquittal Appeals Timeline (Criminal
An appeal court, if it is to overturn the verdict,
Practice Directive, 13 January 2014). This directive pro-
must articulate the basis upon which it con-
vides that upon filing of transcripts and appeal books,
cludes that the verdict is inconsistent with the
the registrar will contact counsel to arrange an agreed
requirements of a judicial appreciation of the
hearing date falling within a year from the date the no-
evidence.
tice of appeal was filed.
(b) Trial judge erred on a point of law
In practice, hearing dates for conviction appeals are of-
ten fixed after the appellant’s factum has been filed. Ap- Questions of law could include the following:
peals from sentence are generally set down once the reg-
• interpretation of a statute (R. v. Audet,
istry has received the sentencing transcript. If a very
[1996] 2 S.C.R. 171);
short sentence is being appealed, it can usually be set
down for hearing without significant delay. • application of a legal rule or principle
(Canada (Director of Investigation and
[§9.17] Raising a New Issue on Appeal Research) v. Southam Inc., [1997] 1
S.C.R. 748);
During the trial, counsel should keep in mind that the
• instructions to a jury (R. v. Lifchus, [1997]
failure to raise a point or make an objection before the
3 S.C.R. 20, R. v. Russell, [2000] 2 S.C.R.
trial judge may be a factor weighed later by the appellate
731, R. v. Avetysan, 2000 SCC 56); or
court in dismissing an appeal (R. v. Sherman, 1979 Can-
LII 2952 (B.C.C.A)). Counsel should be particularly • failure to provide sufficient reasons for
careful about issues of law, especially under the Charter. judgment (R. v. Sheppard, 2002 SCC 26;
Generally, new issues cannot be raised for the first time R. v. Gagnon, 2006 SCC 17, R. v. R.E.M.,
on appeal. This includes applications to exclude evi- 2008 SCC 51).
dence, questions of statutory interpretation and constitu-
(c) Miscarriage of justice
tional challenges to the validity of the legislation. See R.
v. Vidulich (1989), 37 B.C.L.R. (2d) 391 (C.A.); R. v. Categories of what constitutes a miscarriage of
Tomlinson, 2009 BCCA 196, R. v. Lilgert, 2014 BCCA justice are still open. A miscarriage of justice
493, and R. v. Gill, 2018 BCCA 144. may include a misapprehension of evidence
(R. v. Morrissey (1995), 97 C.C.C. (3d) 193
[§9.18] The Appeal Hearing (Ont. C.A.)) or errors in the trial process af-
fecting trial fairness.
1. Appeals From Conviction
An appeal court has an unfettered right on appeal
Section 686 states that counsel for the appellant from conviction to order a new trial or direct that a
should be prepared to demonstrate the error under verdict of acquittal be entered (s. 686(2)). General-
appeal: the trial court erred so that the verdict is un- ly, if the verdict is found to be unreasonable or un-
reasonable or cannot be supported by the evidence, supported by the evidence, the remedy is acquittal.

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 126
If the court finds there was an error of law, the ly intervene to vary a sentence imposed by a sen-
court may still dismiss the appeal where no sub- tencing judge if the sentence is “clearly unreasona-
stantial wrong or miscarriage of justice occurred ble” or “demonstrably unfit” (R. v. Lacasse, 2015
(s. 686(1)(b)(iii)). In such a case, the Crown must SCC 64; R. v. Agin, 2018 BCCA 133; Friesen).
satisfy the court that there is no reasonable possibil-
An appeal court does not have jurisdiction to hear
ity that the verdict would have been different had
appeals on a summary conviction matter unless it
the error not been made (R. v. Bevan (1993), 82
involves a question of law alone. Quantum of sen-
C.C.C. (3d) 310 (S.C.C.)).
tence is not a question of law alone.
The court can also dismiss an appeal despite finding
Under Rule 12, the court may order that a post-
there was a procedural error, including one that may
sentence report be prepared relating to a person in
go to jurisdiction (see s. 686 (1)(b)(iv) and R. v.
respect of whom an appeal against sentence is
Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.)).
outstanding. The court is often reluctant to order a
The court can also dismiss the appeal but substitute post-sentence report given that the appeal typically
a conviction for an included offence, as an alterna- deals with fitness at the time the sentence is
tive to allowing the appeal (ss. 686(1)(b)(i) and imposed (R. v. Radjenovic, 2013 BCCA 131).
686(3)).
If a probation or conditional sentence order has
2. Appeals From Acquittal been suspended pending appeal, the appeal court
must take into account any conditions of an under-
Appellate courts have “read in” the equivalent of taking or recognizance and the period during which
s. 686(1)(b)(iii) to appeals by the Crown from ac- they were imposed in determining whether to vary a
quittals, even though the Criminal Code is silent on sentence (s. 683(7)).
this point (R. v. Vezeau (1976), 28 C.C.C. (2d) 81
(S.C.C.); R. v. Graveline (2006), 207 C.C.C. (3d) [§9.19] Miscellaneous Appeal Provisions
481 (S.C.C.)). The Crown must demonstrate that,
but for the error of law, the verdict would not nec- Part XXI of the Criminal Code covers several matters
essarily have been the same. There must be a rea- that have not been referred to in this material. For exam-
sonable degree of certainty that the error was mate- ple, s. 683 outlines an appeal court’s other powers, in-
rial to the verdict: see R. v. George (2017), 349 cluding the power to admit fresh evidence (R. v. Palmer
C.C.C. (3d) 371 (S.C.C.). and Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.) and R.
Generally, on an appeal from an acquittal the v. Stolar (1988), 40 C.C.C. (3d) 1 (S.C.C.)).
Crown cannot change its position by raising a new Under s. 684, an appeal court may assign counsel to act
legal argument that it did not raise at trial: R. v. on behalf of an unrepresented party to an appeal if it ap-
Barton, 2019 SCC 33; R. v. Suarez-Noa (2017), 350 pears desirable in the interests of justice that the accused
C.C.C. (3d) 267 (Ont. C.A.). have legal assistance and if the accused doesn’t have
The court has the power to enter a guilty verdict ra- sufficient means to obtain that assistance (R. v. Baig
ther than order a new trial when, in its opinion, the (1990), 58 C.C.C. (3d) 156 (B.C.C.A.)). See Applica-
accused should have been found guilty but for the tions for a Court-Appointed Lawyer Under Section 684
error in law. However, the court cannot exercise of the Criminal Code (Criminal Practice Directive,
this power if the appeal is from an acquittal by a ju- 19 September 2011) for the procedure to be followed.
ry (s. 686(4)(b)(ii)). The Supreme Court of Canada or a judge of that court
has jurisdiction to make the same order on appeals to
The court will not enter a guilty verdict on a Crown that court (s. 694.1(1)).
appeal from an acquittal unless it is satisfied that all
of the factual findings necessary to support a verdict Appeals to the Supreme Court of Canada are governed
of guilty have been made. See R. v. Cassidy (1989), by ss. 691–695 of the Criminal Code, the Supreme Court
50 C.C.C. (3d) 193 (S.C.C.). When a guilty verdict Act, R.S.C. 1985, c. S-26, and the Supreme Court of
is entered on appeal, the appeal court can either Canada Rules. Under the Criminal Code, the Supreme
pass sentence or remit the case to the trial court for Court of Canada will hear only appeals on questions of
a sentence to be imposed by the trial court. law alone. However, under s. 40(1) of the Supreme
Court Act, issues of mixed law and fact may be reviewed
3. Appeals From Sentence with leave.
Section 687 sets forth the jurisdiction of the court
with respect to appeals from sentence. The Supreme
Court of Canada has affirmed a highly deferential
standard of review on appeals from sentence. Ab-
sent an error in principle, which also had an impact
on the sentence imposed, an appellate court can on-

Criminal Procedure