CRIMINAL PROCEDURE
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Begins with police officer responding to a complaint or witnessing a crime
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Swears in information: basic document that summarizes the evidence which is presented to a Justice of the Peace, who, if they decide there is sufficient evidence to proceed, will sign the bottom of document, compelling the accused to attend court
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Crown lawyers screen charges: is there sufficient evidence for a criminal charge?
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At the time of arrest, many individuals are not detained indefinitely but served with an appearance notice compelling them to appear. If charged individual cannot be found, an arrest warrant will be issued.
THREE KINDS OF OFFENSES
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Summary conviction
Maximum penalty of 6 months and $5000 fine (unless there is a specific maximum, eg. Sexual assault = 18 months). Summary conviction offense will have a trial by judge alone in provincial court and the accused will not be entitled to a preliminary inquiry, while…
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Indictment
Maximum penalties range from a year to life imprisonment. Some also have minimum penalties - that used to be more unusual but the current government has increased the number of offenses with minimum penalties.
Indictable offense will allow the accused to choose between 3 options of how to proceed: (1) like a summary conviction offense; (2) go to superior court and have a trial by judge alone with a preliminary inquiry; or (3) go to superior court, before a judge and jury and preceded by a preliminary inquiry.
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Hybrid offenses
Prosecutor can choose whether to proceed by summary conviction or indictment. Eg. Sexual assault. How do they decide which? Based on the procedure:
TWO EXCEPTIONS IN INDICTABLE OFFENSES
Section 469 offenses (includes murder) must be tried by a superior court and must have a preliminary hearing. Can be heard by a judge alone, or by a judge and jury with the consent of the Crown.
Section 553 indictable offenses are in the absolute jurisdiction of the provincial court and will not have a preliminary hearing and will be heard by a judge alone.
PROOF BEYOND A REASONABLE DOUBT
BARD is higher than 50% certainty, but not 100% certainty - somewhere between probable and absolutely certain.
R v LIFCHUS [1997] SCC
FACTS
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The A, a stockbroker, was charged with one count each of fraud and one of theft, both over $1000. It was alleged the A defrauded his employer of a large sum of money by misrepresenting the value of a bond in his personal Canadian margin account.
The accused’s main ground of appeal was that the trial judge erred in instructing the jury on the meaning of the expression “proof beyond a reasonable doubt”. The Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.
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RULING
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Ruling for A – appeal dismissed, order for new trial. Issues with the W.(D.) instruction: attempt to avoid the credibility contest error.
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
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RATIO
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Defined BARD in Canada:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
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R v JHS [2008] SCC
ISSUES WITH THE W(D) INSTRUCTION
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Evidence of the accused may not be exculpatory, but inculpatory. Furthermore, evidence of the accused may be a mix of inculpatory and exculpatory elements
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If the jury believes sufficient exculpatory evidence to prove each element of the offense, then they should convict
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As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused's testimony or not. In either circumstance the accused is entitled to an acquittal.
R v STARR [1997] SCC
FACTS
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The A was convicted by a judge and jury of two counts of first-degree murder for shooting to death Bo Cook and Darlene Weselowski by the side of a Winnipeg highway in the early morning hours of August 21, 1994. An appeal to the Manitoba Court of Appeal was dismissed, Twaddle J.A. dissenting. The Crown’s theory was that the killing of Cook was a gang-related execution, with Weselowski an unfortunate victim who happened to be in the car when Cook was lured out to the highway. The defense argued that the Crown had failed to prove identity, and that the evidence adduced by the Crown did not dispel the real possibility that other gang-related individuals were the killers.
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RULING
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Ruling for A – Crown’s appeal dismissed, order for new trial upheld.
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RATIO
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Reasonable doubt must be defined as a special legal term, and in relation to both absolute certainty and the balance of probabilities.
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Burden of proof in criminal cases and the presumption of innocence mean that credibility contests between witnesses are problematic. If jury isn't sure who to believe, they should acquit.
But! There is an exception to the rule... for some offenses, some elements have a reverse onus - the accused must disprove some fact. Often the Crown has to prove some substitutive fact, some fact is then presumed and this shifts the burden of proof to the accused, who must then disprove the existence of that presumed fact. How much must the accused disprove the fact? Not beyond a reasonable doubt, just on a balance of probabilities.
R v OAKES (1986) SCC
FACTS
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A was charged under s. 8 of the Narcotic Control Act - possession of a narcotic for the purpose of trafficking. Following this finding,A brought a motion to challenge the constitutional validity of s. 8 of the Narcotic Control Act, which he maintained imposes a burden on an accused to prove that he or she was not in possession for the purpose of trafficking. He argued that s. 8 violates the presumption of innocence contained in s. 11(d) of the Charter, as s. 8 would allow him to be convicted despite the presence of reasonable doubt on one of the elements of the offense. Section 8 creates a presumption and a reverse onus. If the court finds that the A was in possession of the narcotic contrary, then burden of proof shifts to A to prove that they were not in possession for the purposes of trafficking in order to be acquitted - the purpose of trafficking is presumed.
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RULING
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The Court was unanimous in holding that the shift in onus violated both Oakes' section 11(d) rights and indirectly his section 7 rights, and could not be justified under section 1 of the Charter, and section 8 of the Narcotics Control Act was struck out as a remedy.
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RATIO
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Legal or persuasive reverse burdens on the defendant violate s. 11 Charter right to a conviction beyond a reasonable doubt, and are often difficult to justify under s. 1.
The Court also sets out the Oakes part test for a reasonable limits on Charter rights:
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Is there a pressing and substantial objective?
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Is there both internal (rational connection between substituted fact and presumed fact - this is used less in future cases) and external rationality (means employed rationally connected to that objective)?
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Is there minimal impairment of the Charter right in question? (This is where criminal statutes generally fail)
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Is there proportionality between the impairment of the right and the substantial objective?
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R v DOWNEY [1992] SCC
FACTS
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The A was jointly charged with his companion with two counts of living on the avails of prostitution. They were convicted at trial and their appeals were dismissed. Appeal argued that reverse onus violated the A's Charter rights under s. 11. Under s. 195(2), if the Crown proves the A was living with prostitutes, then the statute presumes the A was living on the avails of prostitution "in the absence of evidence to the contrary." – fact of living with prostitutes substitutes for presumed fact of living on the avails of prostitution.
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RULING
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The Court's majority ruled that while s. 11 (d) was infringed, the presumption set out in s. 195(2) passes the test set out in Oakes.
The presumption contained in s. 195(2) of the Code infringes s. 11(d) of the Charter since the statutory presumption can result in the conviction of an accused despite the existence of a reasonable doubt in the mind of the trier of fact as to his guilt. The fact that someone lives with a prostitute does not lead inexorably to the conclusion that the person is living on avails. Court argues that there could be situations in which the presumption leads to the acceptance of a fact which has not been proven beyond a reasonable doubt.
The presumption is justified, however, because it passes all four components of the Oakes test - it is directed at a substantial objective, it is rational because of the difficulty of adducing evidence in the matter (reluctance of prostitutes to testify) and because it only imposes an evidentiary burden (raise a reasonable doubt), it satisfies minimal impairment and is proportional.
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RATIO
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Some reverse burdens can be justified under s. 1 of the Charter, despite the fact that they violate s. 11(d).
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DISSENT IN DOWNEY
Iacobucci and McLachlin argue that s. 195(2) fails the proportionality test and the rational connection test, on an internal basis - "at a minimum, proof of the substituted fact must make it likely that the presumed fact is true." Spouses, lovers, friends, children, parents or room-mates may live with or be habitually in the company of a prostitute, which is not a criminal offence, without living on the avails of prostitution. Any presumption which has the potential to catch such a wide variety of innocent people in its wake can only be said to be arbitrary, unfair and based on irrational considerations. La Forest argues that s. 195(2) fails the proportionality test.
REVERSE ONUSES
In Oakes, there was a reverse onus on the accused to prove that they were not in possession of drugs on the balance of probabilities (a legal and persuasive burden). SCC found this violated s. 11(d) of the Charter and was not allowable under s. 1.
In Downey, there was a reverse onus on the accused to prove that they were not living on the avails of prostitution, but they were only required to raise a reasonable doubt (an evidentiary burden). SCC found this violated s. 11(d) of the Charter, but that it was allowable under s. 1 because it passes all 4 elements of the Oakes test.
Why is there an 11(d) violation in Downey when the reverse onus only requires them to raise a reasonable doubt? The presumption forces a conviction if the accused does not raise a reasonable doubt even if the trier of fact has a reasonable doubt.
MOST COMMON GROUNDS FOR APPEAL AGAINST CONVICTION
(Relevant section varies by type of charge – i.e. indictment or summary.)
Ground
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Crown
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Defence
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If successful
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Error in law
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√
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Verdict overturned if there is a reasonable possibility of a different result. Court may substitute new verdict, or order new trial.
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Unreasonable verdict unsupported by the evidence
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X
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√
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Conviction overturned and acquittal entered.
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Miscarriage of justice
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X
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Court may order a new trial or substitute an acquittal.
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Errors in law are the most common grounds for appeal (eg. judge mistakenly allowed evidence, left defense with jury in error or neglected to, etc.). Most of the time, appeals cannot be interlocutory - there must be a judgment prior to an appeal. Why? Because trials are expensive and time-consuming to organize, and so it's not practical to appeal prior to a verdict.
Even if the appellate court finds that there was an error in law, they might find that it is insufficient to overturn the verdict. The curative proviso, s. 686, describes the burden of proof necessary to maintain or overturn a verdict.
Defendant can also appeal on the grounds that it was an unreasonable verdict unsupported by the evidence - criticism that appellate court is reweighing the evidence.
Miscarriage of justice occurs when there is improper behaviour on the parts of the police, lawyers, judge, etc. Most rare form of appeal.
Q: What is the difference between a legal/persuasive burden and an evidential burden?
A: A legal/persuasive burden forces the accused to prove something on a balance of probabilities while an evidentiary burden only requires the accused to raise a reasonable doubt.
R v WHYTE [1988] SCC
FACTS
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The evidence disclosed that when the investigating constables came upon the A's vehicle, it was in a parked position along the roadside, its hood was warm, the dashboard ignition light was on, keys were in the ignition, but the engine was not running. The A was seated in the driver’s seat with his body slumped over the steering-wheel. Counsel for the defence concedes that the D's ability to operate a motor vehicle was impaired by alcohol when he was found by the police. Presumption that triggered the reverse onus and legal burden on the accused:
where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he didn’t enter…the vehicle for the purpose of setting it in motion;
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RULING
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The Court's majority ruled that while s. 11 (d) was infringed, the presumption set out in s. 195(2) passes the test set out in Oakes, and ruled against A's appeal.
The presumption contained in s. 195(2) of the Code infringes s. 11(d) of the Charter because while it does not force a reverse burden on the accused to disprove an element of the offense, the Court held that this distinction was irrelevant because "the real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence," and therefore, a violation of s. 11(d). But the court found that this violation passed the Oakes test and so was justifiable under s. 1.
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RATIO
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Some reverse burdens can be justified under s. 1 of the Charter, despite the fact that they violate s. 11(d) – including evidentiary burdens.
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