Criminal Procedure
Contents
	Introduction
[§1.01]	Introduction-attend CBA, Crim Justice subsection; contact Practic Advisory Group	1
	Preliminary Matters
[§2.01]	Taking the Case: May  take case wholly or on ltd basis.  General intro at ct implies doing whole case.  HB 10(10): Must disclose promptly to the court if you are only acting on a limited basis 	4
	 In deciding to take case, consider following factors	4
	If contacted via intermediary, must confirm w/accused	5
	Obtain immediately:  fulll legal name, charge, next court appearance (time and place),  contact info of accused and bail info; Obtain  ASAP (e,g, at initial interview):  the court registry #, a copy of the information, particulars from Crown, and informations for search warrants, all relevant Crown docs and all personal info from A (but not story??)	5
	Check for conflicts, esp wrt  Co-Accused;  GET A RETAINER- what service at what cost, incl contingencies, e.g. right to w/draw if non-payment of $	6
[§2.02]	Compelling Appearance and Judicial Interim Release: Part XVI of CC re: securing A’s attendance at ct.
	7 ways to compel attendance: appearance notice, promise to appear, recognizance, UT before an officer, summons, warrant (see page for CC sections)	7
[§2.03]	Release by Police: police can release the A on appearance notice; promise to appear, recognizance or UT w/conditions CC 499(2); 503(2.1) (terms listed p.7) and this is taken before an officer in charge and this can impose conditions of release – you need a JP to confirm or give these orders. If meet CC 497(1.1), must keep in custody	7
[§2.04]	Bail Chart: 	8
[§2.05]	Release by the Court: when officers don’t release	9

	1.	Objectives: bail hearing or “show cause hearing”: to determine judicial interim release – presumption against detention and C must show why contd detention is necessary to ensure A will attend, to protect public, or to maintain confidence in the admin of justice. If ct not satisfied on at least one ground, A entitled to be released	9

2.	Procedure at the Bail Hearing: Can be JP, Prov  Ct J,  SCJ, CAJ	9
		CC 515(1)	
		-Judge will ask if the C wishes to show cause, if C does not, then the A is released on an UT with no conditions (signed promise to appear).  If  C wants to add conditions, must show cause for conditions.
		-if C shows cause, J can order retained
		-CC 515(2): can order release on following conditions - list  (515(4))- must relate to ensuring A’s attendance, preventing further offences; ensuring no interference w/course of justice or safety of victim or witness	9
		-Under certain circs, there is a reverse onus - A has to show cause why they should not be detained- CC 515(6) (non resident, murder, drugs etc)	9
		-detention only justified on grounds in 515(10) - attendance; safety; admin of justice
-J may consider availability of early trial date and strength of C’s case	10
-if the A already in jail, bail is not effective until that is done
-to get bail, show a reasonable alternative (such as people who care)
-if case has notoriety seeks an order prohibiting publication - CC 517	10

	3.	Evidence: CC 518(1) must be credible and trustworthy. Includes evidence that may be inadmissible at trial as long as the other party has a fair opportunity to respond – evidential burden on the Crown(balance of probabilities)	11
[§2.06]	Bench Warrants and Section 524 warrants: 
a.	 if A fails to attend court a bench warrant may be issued (512(2); 597)
b.	the A can be arrested with or without a warrant under s.524 when they breach a bail condition – warrant for breach or for new offence.  Once arrested, A taken back to court and upon showing that the offence occurred, the A must show cause why bail should not be cancelled	11
[§2.07]	Charges in Other Jurisdictions: a peace officer can arrest on the basis that there is a warrant in another jurisdiction in Canada or in province. A is held in custody until an escort arrives from the other prov [six day remand] to execute warrant and transport A, although the A can be released. 
	Wrt warrant from elsewhere in B.C., 3 day adjournment to execute warrant and transport A.  Can also exercise prov-wide jurisdiction to do show-cause.
	Can also do show cause by video or t/c	11
[§2.08]	Sureties: primary obligations are to ensure the A appears and that A stays out of trouble	11
	Surety must be acceptable to the court  - see list for unacceptable (i.e. not convicted or charged of anything, has $, not a surety for someone else etc); the court can name a surety and the A can apply to change the surety without going back to custody CC 767.1
	Surety can avoid be relieved of obligations by getting an order for arrest against the A	
	Defense counsel should be wary of contacting surety; don’t guarantee A compliance	12
[§2.09]	Bail Variations in Provincial Court: Non-consensual bail change possible if A is before the J who will try him in future (523(2)(a)) or after prelim inquiry (523(2)(b)); C consent not required; 
	If C consents, 523(2)(c) applies, and J may make order
	If bail varied on 523 application, no vail reivew on that order can be taken to SC.  Can take further review to SC if no variance is made in original order. T/f ask J to not change anything is not going to make substantial changes. 	12
	Prov ct CANNOT review bail for murder	13
[§2.10]	Bail Reviews in Supreme Court: avail under 520; 521 on app by either C or D.  A can bring an app for certiorari to quash the bail order.  Onus on appellant to show that the judge who made original bail made error in law, circs have changed or its unjust not to order release	13
[§2.11]	90-Day Bail Reviews: where A in custody for 90 days for non s.469 indictable offences or 30 days for sum conv, the person with custody must apply to the court for delayed trial hearing (a further bail hearing).  Entitled to 90 bail review even after A received review of detention	13
[§2.12]	Bail Review Documents: Request bail review if A detained or can’t make bail.  Applications should be brought in venue where offence occurred. 2 clear days notice given to the Crown; once reviewed, further review is precluded for 30 days 520(8).  5 DOCS:	13
	1.	Notice of Application: original plus 3 copies; must have clear stmt of the charges	13
	2.	Notice to Person(s) Served: original filed with registry	13
	3.	Affidavit in Support: can put “such further material as counsel may advise 	13
	4.	Transcript of Provincial Court Hearing: original filed – order imm upon bail hearing being done	14
	5.	Order After Bail Review: successful party or registry draws the order and then the other side has to approve the order before it is filed 	14
[§2.13]	Information for Bail Hearings: see list of info to be gathered 515(10)(a-c)	14
	1.	Attendance: basic info to help find for attendance 	14
	2.	Protection of the Public: consider A’s record and their criminal involvement	14
	3.	Confidence in the Administration of Justice: community perception?	15
[§2.14]	Estreatment Procedures: actions against the sureties if A does not attend; judge will hear from C and then the A and then the sureties as to their efforts. Part XXV of CC	15

	Preparation for TRIAL
[§3.01]	Introduction	20
[3.02]	Early Disposition: once agree to take case, have disclosure and Cx custody determined, consider early disposition.
		Early guilty plea may be good where: C file is deficient; another charge must be dealt with (want package deal); A can’t handle stress; A doing dead time, if can manipulate ct.	20

[3.03]	       Plea Bargaining: in BC, JJ not involved, informal negotation b/w C and D.
		C gives D “Crown Counsel’s Initial Sentencing Position” of what  C will seek on early guilty plea; what other info C needs to determine position	21
		Plea negotiation can have various results. See 1-6. Crown can’t conceal A’s previous convictions from J, but can argue they’re not material	21
			
		Crown conduct governed by Criminal  Code of Professional Conduct, Ch IX (9) - must  seek justice, act fairly.  Will plea bargain in interests of public, not expediency	21
		
		Remember ct not bound by plea bargain
		Can w/draw guilty plea, see Agey v. The Queen	22
		See Crim Code IX(12), HB 8(20) re: guilty pleas	22

[3.04]	      Alternatives to Prosecution: 
		(1)  Diversion -  usually only when offence is less serious and A has no record; offender must admit the offence and C must feel it would not endanger the community; not available where a defence to the charge exists; a joint adjournment is asked for and the D prepares a report to C why this is appropriate and then C decides whether to proceed or divert; probation officer will work out the diversion; 
		-diverts offenders out of crim system, contains no enforcement mechanisms, so not used very much anymore. Police respose to crim allegations	22

	(2)  Alternative Measures - intro’d to CC in ‘95, CC 717(4) has enforcement mechanisms. C response to crim allegations. Can be considered any time in prosecution
		Must be completed w/in 3 months
		Conditions for A.M in s.717 - see list. A must accept responsibility	22-3
		Procedure -- submission by D to C re: why A.M. appropriate, agency repot	23
		No admission etc made for A.M. can be used in civil/crim proceedings - CC 717(3). C can still lay information or prosecute, but if A.M. done or being done, A can ask ct to dimiss charges under 717(4)	23
[§3.05]	Criminal Caseflow Management Rules:  Caseflow Rules (CFR) mandate specific procedural steps. See list	23
	Objective is to provide event certainty sot aht ct knows in advance what service will be called upon to provide and to give estimation of time it will take.
	Forms in CFR: Arraignment Report; Trial Readiness Report; Notice of App to Adjourn	23
[§3.06]	Initial Appearance Court: After bail has been determined;
	3 functions: (1) retain defence counsel (2) obtain plea indication (3) file the arraignment reports (prosecution & defence).  Functions assume disclosure has occurred	24
	Client should be present (a must for indictable) otherwise court must decide if the lawyer as agent is OK although the client must have given orders to appear as agent;	24
	 MAY WANT to have the C declare whether to proceed by indictment or sum conv here for hybrid	24
	Adjourned to arraignment ct for arraigment hearing	24
	
[§3.07]	Disclosure of Particulars: Get initial disclosureof particulars before electing mode of trial   Obligation to produce all relevant info is triggered by D request, usually made in the form of a “report to Crown counsel”;	24
	Further particulars necessary as new issues arise	24
	HB 8(18): C ob to disclose all relevant facts and known Ws, whether showing guilt or not	24
	Stinchcombe: C should fully disclose, ltd circumstances where not have to; Chaplin: right to deny disclosure of irrelevant info.  Refusal reviewed in voir dire,  C must prove it does not hinder the A’s right to a full answer and defence, unless justified w/privilege	25
	CC 278.2-278.9 govern production of records in sex offence cases
	C not responsible for issuing materials they don’t possess; don’t ask for docs if they would remind the C to give you notice and then be entered!	25
[§3.08]	Court Records, Informations, Transcripts: list of info to get in prep for hearing	25
[3.09]	Arraignment Hearing: once counsel has been retained & disclosure made, case will be set for arraignment hearing (REQUIRED for all cases –CFR 8); file reports 7 days prior to.
	Should resolve plea & disclosure procedures here; discuss length of case; number of witnesses, set trial date & pre-trial conference (if required; mandatory for all jury trials)	26
[§3.10]	Witness and Client Statements: C must provide D w/all relevant W stmts as well as all stmts by the A or co-A; if not written, then get the verbal version that will be in police report. If W N/A at trial, use 709, 712 to obtain W evidence on commission	26
	W can use stmt to refresh memory while testifying, can be X’d on it, used for truth?,  admitted as exhibit?	27

[§3.11]	Interviewing Clients: canvass matters more fully than on initial interview	27
	1.	Client: basics	27
	2.	Offence: client’s version necessary, but be aware of ethical issues! 	27
	3.	Arrest, Detention and Searches	27
	4.	Statements and Confessions: full details including circumstances that led to this	27
	5.	Evidence: any samples taken?	27
	6.	Real Evidence: seize anything? 	27
	7.	Physical Injuries or Complaints	28
	8.	Witnesses and Defence Evidence: go over where the people and evidence is; get D witnesses to make notes to themselves in order to refresh later; have D contact them	28
	9.	Advice for Client: basic information on  legal system, imp to appear, .	28
		
		DISCUSS FEE, won’t act if not paid.  HB 10(7) must give suff time for Cx to find another lawyer; HB 10 sets out w/drawal steps	28
		Format for interview (Checklist); List of other matters to discuss	28
		
[§3.12]	Witnesses: 3 types: incident, expert and character; 
	Get full details asap; interview as possible, get a written stmt	29
	To have the Ws testify you must either trust them or subpoena them which has a court process including using a bailiff to later enforce it; must be served by peace officer.  No need to file it unless filing an affidavit for failure to appear	29 
	Get a list of C’s witnesses.  C must disclose all potential Ws (Franks), but don’t have to call them	29
	Can’t advise W not to talk to other side  (HB 8(13)), but can tell them they don’t have to 	29
[§3.13]	Expert Witnesses: make use of them	30
[§3.14]	Character Witnesses:  Goes to the improbability of the A committing the offence and to credibility of the A if he or she gives evidence; 
	Careful, if put character in issue by asserting A is of good character and then C can rebut
	W must give evidence on 4 points: (1)Own reputation and credibility; (2) W contact w/A; (3)W ability to comment on A general rep in the community; (4)gen rep of A in community wrt relevant character trait.	
[3.15]	Trial Confirmation Hearing Not less than 30 days before trial or prelim inquiry. Counsel must file a Trial Readiness Report first	30
[§3.16]	Adjournment: if a W does not show, you may get an adjournment must show that (1) the W was material, (2)everything was done to compel appearance (3)there is a reasonable expectation that the W can be produced in the future; 	30
	If C does this, be reasonable as D. but record objections for delay on the record	30
	Procedure set out	31
[§3.17] 	Withdrawal as Counsel: PR ISSUE: HB 10 governs. If violate, subject to disciplinary action
	HB 10(1): where obligated to w/draw, e.g. if instructed to do something inconsistent w/duty to ct.  HB 8(27)duty to w/draw if Cx intends to offer false testimony	31
	Can withdraw if a serious loss of confidence HB 10(2)  Can w/draw as long as not unfair to cx or done for an improper purpose.  Look to circumstances.	31
	HB 10(8) W/drawal procedure:  must notify client, account to the client for $ received and notify all other parties, and notify the court registry, take all reasonable steps to further assist; can be for non-payment of fees (provided in enough time 10(7)) or for confidential info (can’t disclose to court); 	31
	Judge has no discretion to refuse to let lawyer withdraw or to demand explanation Leask and Cronin	31
 [§3.18]	Stays of Proceedings, Withdrawals and Dismissals for Want of Prosecution: 
	(1) Stays: of indictable offense governed by CC 579, CC 795 makes 579 apply to summary offences too.  Within discretion of the P and can be recommenced within one year of the stay Sum conv has to be recommenced within the original LP (6 mos); if not recommenced a new process can be started; 	31
	(2) C can w/draw charges. Apply for leave to w/draw w/short explanation why. E.g. if complainant does not want to proceed and C wants this on record to protect self	32
	(3)dismissal for want of prosecution: when C not in position to proceed on trial date; charge is dismissed (often used when an adjournment not granted)	32
[§3.19]	Informations and Indictments: Docs charging A. Info included in indictment.  Generally will be sufficient if reasonably informs A of charges and raises allegations from general to particular.  If have that, cts unlikely to dismiss charges on technical defect but will order amendment and grant adjournment to A. 	32
	Examine to see if it specifies time place and matter and state the facts alleged to constitute the offence so that the A can answer; see if the info was sworn within the LP	32
	Certainty and Particularity: the info must have sufficient info to take it from the general to the particular; if there are duplicate charges, the C can be called on to elect an offence	
	Motion to Quash: a motion to quash the info or indic (CC  601(1)) can be made if it is defective (must be done before plea or with leave of the court), but the court can choose to just amend it as long as the A would not be prejudiced – although they are only quashed in the clearest cases (not even if an essential element is missing)	
	Amending the Indictment or Information: focus on the prejudice to the A and the possibility of an injustice – court has wide powers to amend and should almost always do so; amendments can be made before election, at the prelim, at a no evidence motion, at insufficient evidence motion, at close of defence, during final submissions, on appeal	
[§3.20]	Motion for Particulars: Particulars are a precise stmt of the essential elements of the charge (defined 587  CC)whereas disclosure is the evidence that the C intends to call to prove its case; 
	Once the C particularizes they must prove all elements BARD – this is good for defence b/c often it makes C’s job harder b/c they have to prove their theory. So C doesn’t like to give them
	Rarely ordered, normally disclosure covers all (even more) than would be in particulars	33
[§3.21]	Joinder and Severance: Cts usually permit multiple counts; multiple accused if legal or factual nexus b/w incidents or parties.  Sever  counts if satisfied required by justcie.  Prov court J at prelim CANNOT grant a sev; 
	1. Severance of Counts - sought on basis that proseuction too complex for defense, no nexus; risk of misapplication of evidence from one count to other; findings of guilt on some counts may prejudice other, accused wants to testify only on some counts.  Opposed  b/c results in multiple trials and risk of inconsistent verdicts	34
	2. Severance of Accused - sought if A wants to call a co-A as a W, if one has made a confession or if they have contrary defences; evidence not admissible against both A.  opposed b/c inefficient and leading to inconsistent verdicts	34
	To be joined, the As must have at least one common charge	34
[§3.22]	Limitation Periods: CC 786(2): 6 mos for summ conv, no limit for indictable.  If hybrid and info laid 6+ mos from offence, deemed indictable. D can waive 6 mo limit.  Keep in mind that amending or re-swearing is a new info and must be within the LP	34
[§3.23]	Elections:  SEE CHART P.37. 
	Sum conv is in prov crt, 
	If hybrid and not specified, generally assumed to be indictable unless the manner of the trial shows otherwise.  If ct takes plea w/no election and C not object, assumed summ.
	If multiple counts, all must be proceeded against in the same manner;
	Indictable can be in prov ct, SP with a judge and jury OR SC with a judge alone – some offences determine this matter (e.g. 469 offences must be in SC; 553 offenses in Prov Ct) but otherwise the A must elect and if they don’t it is deemed judge and jury (565(1)(c))	34-5 
	A’s election is irrelevant if the C elects under s.568 or if AG elecs under 577. If multiple As and they all elect differently, the judge can ignore the elections;	35
	Procedure re: deemed election set out  	35
[§3.24]	Re-Election: CHART p.38.  CC 561.  Must be done before certain deadlines as a right and then C consent required; hear the reelection where the info will ultimately be placed; court can make a trial a prelim if it sees fit and then reelection can occur	35-6
[§3.25]	Pleas: G, NG, Autrefois acquit, Autrefois convict, pardon – when A refuses to answer a GP is entered; AFA when the A was acquitted previously of a charge in the same manner (like if a charge was quashed as defective) – for AA and AC advise the C in advance; if a GP it goes directly to sentencing where facts are read in and either consented to or disputed; a trial judge can allow a GP to be withdrawn	36
[§3.26]	Jurisdiction Chart	37
[§3.27]	Re-Election Chart	38
The Trial
[§4.01]	The Preliminary Inquiry	39

	1.	Election Procedure: W/ indictable offence, A’s election to have a trial in the SC triggers the holding of a PI; under CFR, A may have to make the election at the arraignment and  not be able to wait until  hearing date; 	39
		Strict purpose of the PI is to determine if there is enough evidence to put the A on trial (CC 548(1)), but also allows counsel to test the C evidence and hear it	39
		When deciding whether to elect to have a PI or proceed directly to trial in Prov Court:   PI good if offence is serious & Crown disclosure incomplete. 
		Most trials in Prov Ct	39

	2.	Evidence on the Preliminary Inquiry: Once A  elects SC (and not prov), C will call evidence on PI. Procedure is like a trial BUT Charter remedies N/A
		Gerally the D would have to demolish the C’s case to have a finding of insufficient evidence b/c J only assess sufficiency of evidence, not determining guilt	40
		
		Gives the D a chance to commit C Ws to their testimony - more effective than other previous statements for X -and to test out modes of attack for trial;
		2 approaches: Discovery approach - ask W open ended As to get all evidence, find out areas to avoid on X at trial; Limiting approach - narrow evidence and commit W to specific assertions so W is bound by answers at trial. 	40
		
		After C is done, A can make a stmt, but this is almost never of value.  D can call witnesses - almost never done, but do it if  C failed to call crucial Ws to your case. Drawback is that D is chief and C is X, which is prob what they want - e.g. uncooperative witness for C.  May be only way to preserve evidence if concerned W won’t be at trial, transcript of PI admissible at trial under s.715 	41

	3.	Order Following Preliminary Inquiry: Test: “is there admissible evidence which could, if believed, result in a conviction?”; Ct will ask the parties for submissions. If answer is yes, A will be ordered to stand trial (D usually agrees in most circs)
		
		Only the absence of evidence on an essential element will lead to a discharge at this stage; if any evidence, will be left for the trier of fact. If evidence led of other offences, ct can order the A stand trial for these also	41

	4.	Special Case: CC 577 - C can get direct indictment from AG and PI skipped - for very serious cases.  CC 549 - A can consent to skip PI and go straight to trial w/C’s agreement; C policy not to agree to this, may still want PI b/c provides a lot of insight	42

	5.	Re-election: if prelim is going well for D, D can reelect before the Prov. Ct J and convert PI to a trial; likely C will not consent unless they are presenting their full case	42

	6.	Review by Certiorari: when PI J orders A to stand trial despite lack of evidence on an essential element, D mayy seek review of order by certiorari. Minimal standard – if there is SOME evidence, it will not be interfered with
		Certiorari also available for denial of procedural fairness (like being able to fully C/E)	42

	7.	Amendments to CC:1995 amendments reduced charrges on which PI likely to occur; raised monetary limit for certain indictable offences and some indictables converted to hybrid w/increased penalities.  Done to encourage C to proceed summarily on these offences. Intent to keep all but most serious offences in Prov Ct and reserve PI and trials in SC for cases where C has no choice but to proceed by indictment
		Pending amendments: An Act to amend the CC and to amend other Acts, 2001, Bill C-15A, expected to affect provincial procedures in fall/02	43
[§4.02]	Disclosure Applications	43
	1.	General: Stinchcombe – Crown must disclose all relevant material to the A whether favourable to the C or the A;
		 
		Exceptions: C need not disclose info where irrelevant, privilege or relates to informers; early disclosure can be delayed where it would prejudice the investigation; 

		D can make an application if the C does not disclose, but make it in advance and at a trial court (can’t do it at the prelim)	43
	
 [§4.05]	The Crown's Case: C must be fair and impartial and cannot express a personal opinion as to guilt; no duty to call particular W; call all Ws that are essential to the narrative although they must disclose relevant evidence including Ws they won’t call: 
	Procedure: C calls the case, the A is arraigned by the charge being read, elections made, and the plea taken	46
[§4.06]	Opening in Non-Jury Trials: brief outline of case gives overview of C’s case; generally used for long/ complex cases only. Incl short summ of alleged circumstances; number of Ws and their anticipated evidence; exhibits	46
[§4.07]	Opening Addresses by the Crown in Jury Trials: C uses to give overview of case and to tell jury theory of case. C must not present argument. Get rulings on disputed evidence before the trial. Avoid inflammatory language. Sometimes D gives opening following C - where complex case and C’s evidence will take a long time to present; also where A making significant admissions and so telling jury that issues are narrowed	46-7
[§4.08]	Direct Examination - elicit necessary info to prove essential elements	47
[§4.09]	Leading Questions - Q phrased to suggest particular answer. Influences testimony	47
	1.	When Permitted: On X, not direct or re-examination	47
	2.	Exceptions: 
		(a)in direct for intro matters
		(b)matters not in dispute,
		(c) for a matter which the W has already testified,
		(d) when directing W to a piece of evidence, and 
		(e)after an attempt to refresh, fixing the Ws memory	47
[§4.10]	Use of Notebooks to Refresh a Witness' Memory: Can refresh W’s memory - if exhausted - by referring to some earlier writing made or authenticated by W.  W must be able to testify that this was an accurate note at the time it was made.  Notes must be authenticated and shown to have been made in a timely fashion.  Notes themselves NOT evidence, only the W’s testimony
	Establish memory exhausted, and reference to earlier statement would refresh memory, lawyer can give W the written statement/PI transcript, ask them to read it silently and ask if refreshes memory	48
	If W has no present memory of certain events and ref to prior statement does not refresh memory....If W made statement at time when events were fresh in mind and can testify that it was true at the time, the statement itself can be entered as an exhibit as past recollection recorded	48
[§4.11]	Admissions of Fact: CC 655 can adduce evidence by agreed statements of fact; the D can admit any fact once the C alleges it and seek to have it admitted,
	Purpose is to shorten trial and narrow issues, dispenses w/necessity of proving facts	48
	 C can reject admissions also in favor of leading evidence in that regard; if agreed upon, have them written before	49
[§4.12]	Witnesses and Exhibits:  C must permit the W to give the whole testimony whether or not favourable.  C must inform D of any Ws to be called that weren’t called at the PI; consider if the W is a child!!;
	Evidence should be chronological.  For exhibits, evidence will have to be led to establish continuity and then it is marked as an exhibit and can be considered evidence; can admit continuity if obvious or if D wants exhibit no matter what.  Objections to exhibits should be resolved in a voir dire and some can be filed by consent at the start	49
[§4.13]	Cross-Examination: to test accuracy of evidence and veracity of W. Careful what Qs to ask.  Know objective of X - new evidence, discredit testimony, discredit W.  To contradict a W you must first put your version to the witness	50
[§4.14]	Limits of Cross-Examination: do not insult or abuse a W; Qs must be relevant.  An answer on a collateral matter is final and can’t be contradicted; the W can be CE on their record  - accused only X’d on record, not its details, other Ws on facts surrounding record.  Improper to have one W comment on the veracity of another	51
[§4.15]	Re-Examination: Only when new matters arise on X, can’t introduce new topics.  Can’t use leading Qs	52
[§4.16]	No Evidence Motion: at the close of C’s case a motion is made that the C has led no evidence to prove an essential element (if a jury, it is a motion for a directed verdict) – defence can still call evidence if this fails but must make this right to continue clear	53
	1.	The Rule: must be no evidence on which a jury acting reasonably and properly instructed could have convicted; judge cannot assess the evidence or the credibility of the Ws	53
	2.	Hodge's Case: conviction can’t be based on circumstantical evidence; evidence must be inconsistent with any other rational conclusion other than the guilt of the A (an application of the rule of reasonable doubt).  Rule concerned with weight to be attached to evidence, while no evidence motion addresses whether there is any evidence to weigh!	52
[§4.17]	Insufficient Evidence Motion: Argument at end of Crown’s case on the evidence as a whole.  J does weigh the evidence and assesses credibility and determines whether the C has proved its case BARD.  Can only be done after the D unequivocally decides to call no evidence.  If the motion fails that is the end	52
[§4.18]	Defence Case: opens case for D - CC 651(2) - be careful of too much detail.  	53
	1.	Calling Evidence: decide whether A should testify although if he doesn’t judge may comment on this fact to a jury t/f not calling is risky; although this can be used for an adverse inference it cannot be used as a favourable piece of evidence for C.  Don’t call evidence if don’t need to.	53
	2.	Presenting the Evidence: logically, have a theory	53
[§4.19]	Cross-Examination of the Accused: co-counsel for a co-accused must cross examine before the prosecutor	53
	1.	Scope of Cross-Examination:  A cannot refuse to answer, although answer can’t be used against A in other proceedings (s.5 CEA)
		Prior inconsistent stmts can be put to the A to prove that it was said and not necessarily for the truth of its contents; 
		Can’t lead evidence of the A being guilty of other criminal acts to show they are more likely to do this one unless they directly relate to the charge at hand (balance probative value and prejudicial harm, unlikely it’ll get in.)	53
	
	2.	Previous Convictions: Any W X’d on previous convictions, only relevant as to W credibility.  S.12  CEA: only previous convictions and not prior charges; 
		D can examine the A on the criminal record if it is tactical and not bring the character into evidence, but if the criminal record is denied, character is in evidence. Can make a Corbett applications to stop X on (parts of) record, cts vary in their acceptance of such apps, trend today is to allow X on all; circs of past convictions are not admissible	54
[§4.20]	Defence Re-Examination - same as for C	54
[§4.21]	Rebuttal or Evidence in Reply: Cputs forward after the D to rebut D evidence; cannot restate C’s case nor is re-opening C’s case. C must rebut the evidence adduced	55
	1.	When Rebuttal is Proper: at discretion of the judge; not allowed when C knew or should have known the evidence during direct – must be evidence they could not have anticipated.  Iif they chose to split their evidence by waiting, the D can’t reply – unfair! Can’t rebut on collateral matters, although this relaxed somwhat - OK wrt evidence on essential issue even if not determinative	55

	2.	Examples of Rebuttal	56	
 [§4.23]	Addresses of Counsel	56
	1.	Order: if the defence calls no witnesses, then A goes last; but if defence calls witnesses, they go first.	56
	2.	Content - plan, use a theory of the case, brevity is good	
	3.	Crown: will stress evidence needed on each element. Must be fair and not press for conviction unless justified	57
	4.	Defence:theory, point out inconsistencies in C case. Show what C failed to prove	
[§4.24]	Opening & Closing Addresses of Counsel: note there is guaranteed right for the D to open and not one for the C, but the C always does and D seldom does; if multiple As, then the judge can order they go in order on the indictment	57
	1.	Opening Address by Counsel for the Crown: provide an overall picture; if concerned about something C included, D should bring it up after the opening and in the absence of the jury. D should order transcript of C opening	57

	2.	Opening Addresses by Counsel for the Defence: outline evidence, can refer to specific evidence, show context give a summary of the evidence to be heard and relate the D’s evidence to the C’s already given evidence; 
		(a) Credibility of Witness: not argue W credibility, but can point out that D may be more nervous b/c this is new to them;
		(b) criminal record: bring up the existence of a record;
		(c) presumption of innocence - remind of presumption, need for BARD
		(d) discuss theory of defense	59

	3.	Closing Arguments for the Crown: can’t be inflammatory, give personal opinion or give evidence.  A can get new trial on appeal, but this is less likely if TJ addresses C conduct in jury charge. More subdued affair than D.	59

	4.	Closing Arguments by Defence Counsel: don’t be inflammatory or to give an opinion on the innocence or to give evidence that wasn’t led.  Don’t criticize C.  Mimimize references to law in case J decides to interrupt and correct you!	60
[§4.25]	Judge's Charge on a Jury Trial: after charge and jury has left, the judge will ask counsel for comments and at this time errors are brought up.  J will sometimes ask for lawyer input prior to giving charge or give them drafts to review	61
	Exs of errors to bring up – if would help the A get an acquittal if fixed and those that are favorable to the A but if not fixed would allow a C appeal; 
	List of what the judge will deal with	61-2
Evidence
[§5.01]	Burden of Proof at Trial	63
	1.	General Rule: C has the persuasive/legal burden. A presumed innocent	
	2.	Shifting of Burden: Only evidentiary burden shifts; A only has an evidentiary burden of proving a defence once the C has met the persuasive (primary)burden on all essential elements	
	3.	Presumptions: presumptions of reverse burden; “evidence to the contrary” means whether it might reasonably be true and not whether the TOF believes it
		(a)Common sense inferencess - e.g. intend consequences of actions. Not mandatory, may be displaced w/evidence raising reasonable doubt to contrary	63
		(b)Presumption Shifting legal Burden: requires A to disprove presumed proposition on BoP.  Usually statute created; are mandatory.  Trier of fact must find that presumed fact exists unles disproved on BoP.  May violate CH 11d presumption of innocence. See Oakes test.	63
		(c)Presumption Shifting Evidentiary Burden: A must raise reasonable doubt as to presumed fact.  Statute created; mandatory.  Fact deemed proven in absence of evidence to contrary.	63
[§5.02]	Provincial Rules of Evidence: if in must be through a provincial statute (not Code conv). CEA s.37 used to putting doc evidence in through provisions of prov statute; restricted to matters w/in prov jurisdiction	64
[§5.03]	Identification Evidence	64
	1.	Police Lineups: the C can lead evidence of an ID from line up even if W can no longer identify at trial. Out of ct evidence more probative than in court evidence anyway
		Refusal to participate in a line up may be admissible at trial, but can only be used to explain the absence of a line up and not as evidence of guilt	
	2.	In-Court Identification: have A sit in the public gallery so harder to ID (only if similar persons in courtroom) JJ may see this as desperate attempt; TJ discretion	
	3.	Eyewitness Identification: jury should be cautioned.  Weight of caution differs depending on strength of eyewitness ID. If strong, more cursory jury caution.  Flexible	65
[§5.04]	Real Evidence - Photographs & Videos: admissible upon authentication - proof by W that accurately depict what they purport to show. Secret videotaping may violate CH s.8, Q as to whether this also applies to photography?	65
[§5.05]	Res Gestae: means “things done”;means spontaneous utterances (covered by hearsay rules) and verbal acts (not hearsay but utterances part of some relevant act)
	Rationale behind admitting such statements is that they are trustworthy, made while A was excited from criminal act and had no reason to make stuff up.  Doesn’t have to be precisely contemporaneous, but must be trustworthy.  Hold voir dire? Trustworthiness is assessed by the spontaneity of the stmt/opp to concoct, mental and emotional makeup of declarant or the likelihood of the declarant being responsible party seeking to put blame elsewhere	
	1.	Accused Found in Possession: Charge of illegal possession - used here when A has the illegal thing - statement made by A while in possession	66
	2.	Victims of Sexual Assault: often used for child’s complaints to a3P. Trauma to kids of testifying, so can put evidence in through statements made to 3P See Khan	66
		CC 486(2.1) kid can give evidence from behind screen; CC 715.1 kid can give videotaped evidence
	3.	Utterances Forming a Part of the Issue: verbal acts necessary to the act (stick em up) ; utterances form part of element of charge - technically actus reus.	 also for refusing a breath sample, misleading a police officer or threatening an officer	66
[§5.06]	Hearsay: Is when statement made by 3P (not W) is tendered for truth of contents.  Not hearsayt when not being tendered for its truth but for the fact that it was made.  t/f need to know purpose for which statement is tendered
	Admissible under various statutory exceptions or c.l. categorical exceptions.  Also admissible under principled appraoch: Khan, Smith - test of necessity and reliability.  Starr - take principles into acct   in looking at categorical exceptions 
	If surrrounding circumstances negate possibility that statement was untruthful/mistaken, will be reliable.  If necessary to prove fact, will be necessary! Subject to residual TJ discretion: probative value vs prejudicial effect; 
	3 frailties of hearsay: absence of oath, no X opps and TOF cannot assess the demeanor
	Prior inconsistent stmts - normally only used for fact of making and not actual truth - can be entered as truth if their reliability was tested – all determined on a voir dire (s.9 of CEA)	67
	Voir Dire procedure (B. (K.G.))	68
[§5.07]	Statutory Exceptions to the Rule Against Hearsay: business records, and official documents, admissions, etc. Subj to notice provisions.e .g. 28 CEA	68
[§5.08]	Expert Evidence: Mohan: admissibility of expert evidence governed by: relevance; necessity in assisting t.o.f.; absence of exclusionary rule; properly qualified expert
	Expert: one who has by dint of training and practice acquired a good knowledge of th science or art concerning which his opinion is sought and the practical ability to use his judgment in that science.  	69
	Must be properly qualified (voir dire). Shouldn’t range beyond area in which qualified as expert
	Can be based on hearsay. 	70
	Must give t.o.f. something they can’t get themselves or else not relevant. Probative> prej	70
[§5.09]	Character Evidence: 	once character led by D, C can call evidence/X on the reputation of bad character in the community and on specific acts which show bad character	70
[§5.10]	Voir Dire: trial within a trial where jury is excluded; trial ‘suspended’ With no jury, the judge declares a voir dire - lawyers can call Ws depending - and then rules on admissibility; all things that question admissibility are done here	70
[§5.11]	Statements by the Accused: 1 reason to hold voir dire is to determine if out of ct statements by A were made and if were made voluntarily. e.g. Confessions.  Hearsay, but would be admissible if made when given voluntarily	71
	1.	Principles: only stmts made freely and voluntarily to a person in authority can be admitted [i.e. not obtained by threats of fear or prejudice or hope of advantage held out] and it must be product of an operating mind; C bears burden, must prove volutarinness BARD	72

	2.	Persons in Authority: anyone formally involved in arrest, detention, examination or prosecution of an A, but others can be included based on the circs [authority and control over A]; look to A’s subjective belief, needs reasonable basis. Undercover cop not a person in authority b/c A did not know they were police. SEE LIST	72

	3.	Procedure: voir dire to determine voluntariness either during C’s case or X of A	73
	4.	Witnesses: call the people to whom statement was made	73
	5.	Defence: D Xs C Wand can call A to testify without prejudicing right not to testify on main issue at trial. Any evidence given on voir dire is ltd to issue of voluntariness	73
	6.	Closing - see 5.10	73
	7.	Waiver: a VD may be waived by the D - e.g. voluntariness not issue	73
	8.	Mental Capacity of the Accused: Did A have operating mind?
		Goes to admissibility b/c if not an operating mind then not admissible; does the A understand what they are saying and the effect	74
	9.	The Charter of Rights and Freedoms: stmt could be excluded under s.24(2); burden is on A to prove Charter breach BoP[EX if a person is so drunk or didn’t get chance to retain counsel]	74
[§5.13]	Doctrine of Recent Possession: when the A has the thing close to the event, like stolen goods, there is a presumption which requires an explanation	75
	1. Unexplained recent possession of stolen goods permits inference of guilt; conviction not mandatory	75
	2.If explanation is given that could reasonably be true, inference not drawn, even if t.o.f. not satisfied of truth of explanation	75
	3. C has no obligation to adduce evidence on whether A offered explanation, only show goods recently stolen and found in possession of A.
	4.Inference of guilt doesn’t stop at possession of stolen property - theft, b&e, robbery	76
Charter Remedies
[§6.01]	Introduction: s.52(1) Con is law of land, incl CH. 
	s.24(1) allows anyone to apply to a court of competent jurisdiction if their rights have been infringed 
	s.24(2) allows for the exclusion of evidence that was obtained by a CH violation where the admission of that evidence would bring the administration of justice into disrepute
	Must be ct of competent jurisdiction, not PI; 
	Remedy must be just and appropriate but the options are varied, see 1-7	77
[§6.02]	Challenging the Validity of Legislation: any person or corp with an offence has standing to challenge the law as invalid and no force or effectto extent of inconsistency w/CH - s.52 remedy- or for another remedy under s.24 	77
	To declare it invalid under s.52, (1) the law must be shown unconstitutional and (2) fail the s.1 Oakes analysis which looks at whether objective is of suff importance; means are rationally connected to end; proportionality
	Give 14 days notice of challenge to AG of BC and of Cda.	78
[§6.03]	Judicial Stays of Proceedings: power under CH 24 to terminate proceedings with a stay of proceedings if there is a violation or denial of a Charter right; the stay is tantamount to an acquittal 	78
[§6.04]	Judicial Stays for Delay: Common circ in which judicial stay of proceedings is sought is for violation of s.11(b)  with unreasonable delay; 
	Usually made as a pre-trial motion. In SC, motion supported by affidavit evidence. In prov crt it is different as both parties explain their position -- informaily of this process is questionable 
	Special attention is paid to prejudice to the A b/c of delay 	79
	Factors: (a) length of delay; (b) clear and unequivocal waiver of particular periods of delay; (c) reasons for delay -  look to inherent time requirements, actions of the A, of C, limits on institutional resources; other (d)prejudicie to A - can be inferred, may need to prove	79
	Also applies to sentencing; not available to a corporate A.	80
[§6.05]	Exclusion of Evidence: Only a court of competent jurisdiction can exclude (trial court) evidence. Procedure is for ct to declare voir dire.  
	Aplicant has burden to prove on BoP that their Charter rights were infringed and burden of presenting evidence to support this. If breach est’d Applicant also has burden to show that admission of the evidence could bring the admin of justice into disrepute on the BOP; 	80
	To prove latter: evidence is conscriptive when A was compelled by police to participate in creation/discovery of evidence.  Admission as evidence will almost always make trial unfair and gets excluded.  Non-conscriptive evidence rarely makes trial unfair, ct must look further to seriousness of violation and effect of exclusion on admin of justice
	May also exclude derivate evidence	80
	Procedure:
	1.	Timing of Section 24(2) Applications: before evidence is admitted, not after accepted	80
	2.	Notice of Application: state with particularity what the ground is 	81
	3.	Entitlement to a Hearing: ct entitled to know defence position on possible CH isues on  outset of trial and summary of anticipated evidence.  If this doesn’t disclose basis for exclusion, don’t get hearing. 	81
[§6.06]	Unreasonable Searches: s.8 right to be secure from unreasonable searches, it’s violation can result in exclusion of evidence
	Search is reasonable only if: (i) it is authorized by law, (ii) the law is reasonable and (iii) the manner in which the search is carried out is reasonable.  Warrantless search absent exigible circs will be prima facie unreasonable; 	Entering private dwelling houses should be done with a warrant [this is a big right]; can search a car w/out a warrant when exigible circs exist.  	82
	Laws authorizing searches are stat provisions e.g. CC 487, ss.11, 13 of Controlled Drugs , search properly incidental to investigative detention.  
	Attack a search warrant as being invalid - defects, improprieties in how obtained, such as misleading info being given to the JP but also if the grounds to get warrant were a violation such as warrantless perimeter searches or bodily samples taken without a warrant 	82
	Remember, showing search to be unreasonable is only first step for the defence; then they must show on BOP that the evidence should be excluded b/c its admission would bring the administration of justice into disrepute. Real evidence rarely operates unfairly unless conscriptive and so have to show breach is serious - deliberateness and lack of good faith	82
	Also, before A can raise s.8 issue, must show that they have a consitutionally recognized privacy interest in the premises searched. App must be person whose rights infringed	82
[§6.07]	Right to Counsel: s.10(b) right on arrest and detention to have counsel without delay and to be informed of this right; Detention occurs when officer assumes control over the A by demand or direction that could have a significant legal consequence and which prevents or impedes access to counsel	83
	10(a) everyone arrested has a right to know the reasons; 
	Authorities must inform the A of his rights to counsel, legal aid and then offer them an opportunity to accept this by refraining from further activity BUT the detainee must exercise their right – onus on A to show they asked and were denied; A may have a reasonable time to consider but after that the police can continue questioning without consequence	83
	When denial of RTC, evidence obtained after should be excluded under 24(2) of CH
[§6.08]	Disclosure: right to make full answer and defence, CH s.7 – C’s continuing duty, D must exercise diligence in pursuing disclosure from C. Right extends to production from gov’t agencies.  CC 278.1-278.91 - private 3P records, diff procedure	83-4
Young Offenders
[§7.01]	Pre-Trial Matters: Young Offenders Act (YOA) applies to CC and fed leg. Prov equivalent applies to prov offences. Importance of youth workers. No prelim hearing; no right to jury trial;
	First appearance before youth court YCt J - , must have information/charge read to them - s.12(1)(a); charged with federal offences they have a right to a court-directed lawyer but not so in provincial b/c of legal aid; 
	Before trial - hearing to determine age and notice – the parents must be notified of charges and testify to this notice and give the age; can be admitted by counsel under s.58 YOA	85
	s.38 YOA- offense to publish name	85
	Bail:  similar to adults, but often focussed on getting shelter; ; s.7.1 YOA - put the youth in  care of a responsible person who gives undertaking and becomes the “jailer” and they’re punishable under 7.2. If they can’t manage youth, give notice under 7.1(3) and youth must be arrested again	85
[§7.02]	Transfers to Adult Court: S.16 of YOA; 
	If 14+ charged w/indictable offence (other than CC 533), determine which ct. Get pre-disposition report under 16(3).  If 16/17 and charged with murder etc or sexual assault the trial must be in adult court unless court determines otherwise; 
	Procedure, depending on whether C or youth application	86
[§7.03]	Trial: YOA s.56:  (1)no statement made to authorities is admissible unless the youth was advised of no obligation to make statement, (2)has right to consult with parent, relative AND counsel and have them present - only have to give reasonable opp-  and (3)if they waive this, the stmt must be in writing or videotaped – s.56 and a voir dire. Cts sensitive to vulnerabilities of youth, make sure properly understands	87
	See also s.60 re: child witnesses	87
[§7.04]	Disposition: when convicted the court will often request a pre-disposition report, prepared by youth worker under YOA s.14
	Range of sentences in s.20(1)(a-l). Max in most cases is 2 years (unless offense is one which in adult court would get life and then is 3); first murder max 10 years; 2nd murder max 7 years; Custody is the last resort and only used when necessary to protection of the public.  Primary goal is rehabilitiation; deterrence is secondary. When order custody,must explain why another sentence insufficent.  No intermittent custody, no conditional sentences 	87-8
Sentencing
[§8.01]	Introduction	90
[§8.02]	Preparation: 
1.	Determine whether to plead guilty or proceed to trial; should review report to crown counsel to determine if legal defence to the charge. Ensure Cx makes informed decision
	Caseflow Management Rules require counsel to attend arraignment hearing to fix trial date. Prior to hearing, defence counsel must say whether A will be pleading guilty. C MUST discuss  initial thoughts on sentencing with the defence counsel before arraignment hearing, but Crown not bound by what they say re sentencing at this point.	91
2.	Client background - interview cx	91
3.	Criminal Record: get it, and get details, see list of Qs to ask Cx 	91
4.	Character Evidence: interview family, friends, emp’r; make sure Ws of good character themselves; get letters of character reference, more weight if clear that authors aware of conviction	92
5.	Circumstances of the Offence - clarify facts, should try to agree w/C.  Details of offence given to prison instiuttion and may affect choice of institution re: security	92
6.	Formulating position & Speaking to Sentence: review cases - CC 718.2 principle that sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances; obtain info about A’s pre-trial custody status (may get credit for time served- usually double time); be aware of other programs, facilities 	93
7.	Procedure: usually good practice to adjourn sentencing and not deal with immediately after conviction.  Can call witnesses; A can give statement. Wrt guilty plea, make sure don’t deny element of offence or  no plea!	93
	See detailed procedure re: submissions.  Ultimately J sentences, not D or C	93
8.	Other Considerations: if more than one charge, consider disposing all at same time- “totality principle” results in lower charges overall	94
9.	Summary - know aggravating/mitigating factors of offense and offender	94
[§8.03]	Part XXII of the Criminal Code - Sentencing: Part XXII sets out stat purposes and principles of sentencing	95

	1.	Alternative Measures: s.717 – alternative measures can be used if it satisfies the s.717 conditions.  Measures must be in  AAG auth’d program; prog must be appropriate wrt needs of offender, interests of society and victim.  A must admit involvement, be advised of rights.  C must actually have a case – i
		If A denies involvement AM are prohibited; the use of these do not bar proceedings unless the A has substantially complied with AM	95

	2.	The Purposes and Principles of Sentencing: s.718 sets out principles of sentencing: (a)denunciation, (b)deterrence, (c)protection of the public, (d)rehabilitation of offender, (e)reparation to the victims, (f)promotion of sense of responsibility in offender. 	96

		Fundamental principle: sentence proportionate to the gravity of the offence and degree of responsibility of the offender 718.1. Consider aggravating and mitigating facts re: offender and offense e.g. 718.2. If aboriginal, special considerations - 718.2(e), R. v. Gladue	96

3.	The Sentencing Hearing:  Procedure and Evidence: ss.720-29 steps: 
a.	probation officer prepares and files a pre-sentencing report and counsel obtains them.  CC 721(3) - what must contain; review to make sure doesnt’ contain inapprop stuff	96-7
b.	CC 722 victim impact stmts may be offered in writing or have the victim read to the court before sentencing. [victim must be informed of this right]	97
c.	CC 723, 724 -counsel makes submissions on fact and gives evidence. W may testify; hearsay admissible	97
d.	CC 724 any disputed facts must be proved by tendering party. Ct must be satisifed on BoP that exists;  C must prove on BARD that aggravating fact exists	98
e..	the court must ask the offender if they have anything to say (CC 726); ct must consider other relevant info before it (cc 726.1); ct must state reasons for sentence (726.2)	98
f.	CC 727 - offenses for which may be greater punishment by reason of previous conviction; C must satisfy ct that notice given to A that greater punishment would be sought b/c of previous conviction	98
[§8.04]	Sentences Available	98
	1.	Absolute Discharge: only if no min and a max less than 14 yrs; 
		A deemed not convicted & no penalty imposed, but is on their record for a period of time - 1 or 3 yrs depending on  ab or conditional; automatically removed for sum con but for indictable may need to apply for a pardon – travel concerns. 
		Test for Discharge (to clear record): Court must find that a discharge is in the best interests of the A and that discharge is not contrary to public interest.	99

	2.	Conditional Discharge: no min, max 14 yrs; 
		A is placed on probation for a set period [never with a fine!!] and after probation expires, discharge becomes absolute; again record erased.
		Discharge not appropriate for violent offense
		Criminal Records Act s.3.1 record to be erased in 3 years of conditions being met	99

3.	Suspended Sentence and Probation Order: any offense with no min. – A can have probation for no more than 3 yrs. Purpose of probation order to secure good conduct
		CC 731: power to impose probation subj to conditions. CC 732.1(2): compulsory conditions of probation order.  CC 732.1(3):  optional conditions	100
		Probation order comes into force the day it is ordered or after other imprisonment is done; 
a.	if offender gets parole, the probation does not start until whole term is done (no reduction for good behavior); 
b.	if convicted again the probation order continues but is not performed; 
c.	if outside the prov then consent from prov reqd CC 733
d.	if fined and imprisonment – no probation! only one or the other CC 731
e.	C can charge the new charge of breach of probation CC 733.1. A must have been warned that breach of probation could lead to this charge.. If not, probation invalid	101

	4.	Suspended Sentence Plus Fine Plus Probation: prob + fine or prob + <2 yrs jail but NOT prob + fine + jail	101

	5.	Fine Plus Probation Order: if offender does not pay they could go to jail	101

6.	Fines: CC 734 - provision for imposing fine; power to find is in addition to or in lieu of any other sanction ct is auth’d to impose.  Ct must be sat that the indiv can pay the fine and must be set out how much to pay, how and when to pay.  In default if idne not paid by time set out in order.  Any $ the A has at arrest can be applied to the fine; a victim surcharge fine for victim programs which is paid on all fines;  

		(a) Proceedings -  procedure. Incl give A a copy, explain provisions, etc.	101

		(b)If default, 3P can refuse to renew licence or permit, til fine paid

		(c) if default, can be civilly enforced via judgment

		(d)when time has been allowed for payment, can’t issue warrant tli full time expired and only if ct satisfied that (b) and (c) inappropriate and/or A has refused to pay. If no time allowed, ct must state in warrant reason for hasty action. Once in prison, no (b), (c)	102

		(e)CC 737:A must pay victim surcharge for summ con of 15% of fine. If no fine, summ con pay $50; indictable pay $100. Can be exempt if undue hardship	102

		(f)corporation fines in in ct discretion for indictable crimes, max $25, 000	102

Sum con: Max fine is $2000, CC 737, Indictable: at ct’s discretion	102	
7.	Restitution: as part of probation or stand alone – pay $ to the victim directly 
		Counsel must prove that the A has the capacity to pay b/c if not paid it is a breach of probation charge; 
		Stand alone under CC 738 can be made even if A not convicted; CAN be made even if A does not at the time have the means to pay (this relieves the victim of having to sue civilly). Details:
a.	can be to victims or to persons acting in good faith the amount they have paid in good faith
b.	must be a readily ascertainable amount	103

c.	the order can be entered as a judgment in the civil courts

	8.	Intermittent Sentence of Imprisonment: Where order of imprisonment for 90 days or less, taking all the circs into account the court can order the person serve intermittently (like weekends only) to enable them to continue life.  This must be w/ prob order	103

	9.	Electronic Monitoring System: movements monitored while on house arrrest - curfew,etc. 
		Offenders must meet certain criteria	104
		The final decision is with the Corrections Branch; look at factors like seriousness and record	104

10.	Conditional Sentence of Imprisonment: CC 742: when all other options are no good and imprisonment is inevitable this is an option; the court actually orders the sentence and then orders it to be served in the community unless conditions breached
		
		R v. Proulx: (1) Must be an offence with no min,
		(2)ct must impose sentence of less than 2 yrs
		(3)ct must be satisfied community not endangered
(4)must be consistent w/purposes and principles of sentencing in CC 718. Has both rehabilitative and punitive aspects; incl aspects that restrict liberty but not in jail! Look to which principles to stress, if comb of punitive and restorative, cond sen is good option	104		
a.	Compulsory and Optional Conditions of a Condition Sentence	105
b.	Supervisor’s Power to Change Optional Conditions - give notice, etc.	105
c.	Transfer of a Conditional Sentence Order: can do it	105
d.	Procedure on Breach of Condition: court must be sat that the A breached on BOP without reasonable excuse. Ct can (i)t ake no action; (ii)change optional conditions; (iii)suspend cond sen and order part of sentence in jail, rest of con sen resumes after; of (iv) order A to jail;  cond sentence is suspended while person in jail	105-6
e.	Where person imprisoned for New Offence: con sen suspened while in jail	106

	11.	Imprisonment in a Provincial Prison - "Provincial Time": sum con max is 6 mos, (although amendments allow up to 18mos in some offenses).  If given 2yrs minus a day must be in a prov jail, not pen.. Can earn 1/3 off for good behavior; if given parole their sentence goes the full term but if wait it out they are done early	106

	12.	Imprisonment Plus Probation Order: only after terms of 2 yrs or less; PO cant’ exceed 3 years	107

	13.	Imprisonment Plus Fine: only if no mandatory min term of imprisonment	107

	14.	Imprisonment and Fine and Probation Order: not possible	109

	15.	Imprisonment in a Federal Penitentiary - "Federal Time": 2+ yrs  or 2 terms of less than 2 yrs that total 2+ yrs, they must go to a penitentiary CC 743.1 
		Once sentenced, the A does not go for 15 days to have chance to sort out affairs;	107 
		The sentence can be transferred to provincial; 	107
		Certain info given to corrections officer, make submissions on what’s to be given	107
		Can have parole at lesser of 1/3 or 7yrs of sentence and statutory release at 2/3;  eligibility for day parole is at 6 mos but to be unescorted it must be the greater of             6 mos or ½ of the sentence	108

	16.	Consecutive Term of Imprisonment: unless specifically stated, the terms are presumed concurrent; only where permitted by statute, no general c.l. power.  J can’t impose consecutive for 2 sentences at the same time, if are done separately this is possible	108

	17.	Sentences of Life Imprisonment: the maximum penalty. Some offenses, its mandatory min; where discretionary only for worst offenders of worst crimes. Parole varies depending on offense; J can make recs as to parole ineligibility period,  can extend for 2nd degree murder b/c scope b/w 10-25 years.	109

	18.	Indeterminate Periods of Imprisonment: designation of dangerous offenders, s752-76; can have indeterminate imprisonment!!!	110

[§8.07]	Charter of Rights & Freedoms - s.12 re: cruel and unusual punishment, mand min sentences will sometimes violate this	112

APPEALS
	SUMMARY CONVICTION APPEALS
[§9.01]	Introduction: summ/prov statute offences appealed to single J in SC. CC 812-38	116
[§9.02]	Procedure	116
	1.	Jurisdiction: if not stated C is presumed to have proceeded summarily	116
	2.	Documents: file Notice of Appeal within 30 days of conviction.  C must serve other side; Most argued on the transcript; file transcripts w/in 30/45 days of service
		30 days before file a stmt of argument (unless unrepresented); response, etc.	117
	
	APPEALS - INDICTABLE OFFENCES
[§9.07]	Governing Provisions: directly to the CA which has no inherent jurisdiction but gets it from statute. Part XXI of CC; Criminal Appeal Rules.  if summ conviction tried w/indictable, are consolidated in CA if meet s.675/6(1.1), otherwise must launch 2 separate appeals. YOA s.27 governs appeals	120
[§9.08]	Notice of Appeal: different forms if appellant is represented, not represented or from sentence – filed within 30 days or else an application to extend can be made with an affidavit stating a bona fide intention to appeal and that there is merit	121
[§9.09]	Grounds of Appeal:	
	1.	From Conviction; question of law alone w/out leave or mixed fact/law with leave or any other ground with leave	121
	2.	From Acquittal: C is limited to law alone. D should examine grounds to see	121
	3.	From Sentence: either side against fitness of the sentence	121