Stuart O'Connell Criminal Law Blog

Prosecutorial discretion is an expansive term that covers all decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. R. v. Anderson , 2014 SCC 41 (CanLII), at para. 44. It includes, among many other things, the Crown's decision to negotiate a plea agreement [FN], as well the Crown's election.             See Stuart O'Connell Law Blog, Crown Election ,  www.stuartoconnell.blogspot.ca/2017/11/crown-election.html Judicial non-interference with prosecutorial discretion has been referred to as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice which also recognizes that prosecutorial discretion is especially ill-suited to judicial review. See R. v. Anderson , 2014 SCC 41 (CanLII), at para. 23. Prosecutorial discretion is reviewable solely for abuse of process.  Anderson ,...

The Criminal Code creates two categories of offences: summary conviction offences and indictable offences. The trial of a summary conviction offence is before a different court and follows a different procedure from that of an indictable offence.   An appeal against the decision at trial goes to a different court of appeal . Since indictable offences are more serious, a prosecution by indictment triggers additional procedural safeguards [FN1] and a conviction attracts more severe penalties.  Indictable offences also confront the accused with greater expense and delay, and carry greater stigma. Hybrid offences Some offences may be prosecuted either summarily or by indictment, at the Crown’s discretion.  These offences are commonly known as hybrid offences (or dual procedure offences).   Hybrid offences do not comprise a third category of offences.  In hybrid offences, the same essential elements must be proven whether the Crown elects to proceed b...

Typically, the Crown provides an accused with a charge screening form at the accused's first court appearance.  The form sets out, among other things, how the Crown intends to elect to proceed (summarily or by indictment); whether the case is appropriate for some form of resolution outside the criminal justice system (such as diversion/direct accountability); and, if not, the sentence the Crown will seek upon the accused entering an early guilty plea. The charge screening form is not the Crown’s election and should not be regarded as such.              R. v. Hynes (2000), 46 W.C.B. (2d) 115 (Ont. C.A.) .  The Crown election is made in court and on the record. As a procedural safeguard, the Crown election is recorded on the information.  R. v. Mitchell 1997 CanLII 6321 (ON CA), at para. 4: The Crown election should be made expressly and recorded on the information. While the charge screening form is s...

Police are required to obtain prior judicial authorization in the form of a warrant to enter a dwelling house for the purpose of carrying out an arrest. See Stuart O’Connell Law Blog, Arrested at Home:   Feeney Warrants, www.stuartoconnell.blogspot.ca/2017/11/arrested-at-home-feeney-warrants.html See R v. Feeney , 1997 CanLII 342 (SCC); Sections 529-529.5, Criminal Code (“Feeney warrants”). There are three well-established exceptions to this constitutional and statutory requirement:   a.        hot pursuit,  b.       exigent circumstances, and   c.        consent.   Today’s blog deals with the exception of consent. Absent a recognized exception, a warrantless entry by the police into a dwelling house will violate section 8 of the Charter, as it constitutes an unreasonable search within the meaning of that provision.   State intrusions into the home st...

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two di...

As a general rule, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment. [FN1] See R. v. B. (G.) (1990), 56 C.C.C. (3d) 200, at 215-16 (SCC); Criminal Code, s. 601(4.1): “A variance between the indictment or a count therein and the evidence taken is not material with respect to (a) the time when the offence is alleged to have been committed…” Typically, when the evidence at trial divulges that the alleged offence occurred at a time outside the timeframe alleged in the indictment/information, the Crown will bring an application under section 601(2) of the Criminal Code to have the indictment amended.  However, given that the Crown is not required to prove as part of its case that the offence date corresponded with the offence date alleged in the indictment, amendment during trial is not necessarily required in order to secure a conviction. [FN2] R. v. S.M . 2017 ONCA 878: ...

For as long as I can remember there has been a widespread disjunction between the legal rule that the form of bail release imposed on an accused be no more onerous than necessary and the application of that rule in our courts.   In my experience, release of the accused on a recognizance with a surety/sureties (which the Supreme Court of Canada has recognized as an onerous form of bail) has become the sine qua non of a bail release.   Suggest at a bail hearing that the accused ought to be released on his own undertaking without or even with conditions and you will likely have to endure an eye roll from the presiding justice.   Coming to a bail hearing expecting that sureties will not be required is simply folly.   Yet the legal rule (known as the ladder principle ) that release of the accused should occur at the earliest reasonable opportunity and on the least onerous grounds is well-established in our jurisprudence. The June 2017 decision of the Supreme Co...