Chapter 7: Pretrial Applications

Five Criminal Code Pre Trial Applications

Severance of counts

severance of accused persons

orders excluding the public

restricting publication, release of exhibits for testing

amendment of information

Reason counts from same transaction are included in one information

to avoid multiple proceedings involving same event and same witnesses

Basis for accused to ask for counts to be severed

potential prejudice to the accused at trial

Who has burden of proof to show counts should be severed

the accused

Additional reasons to grant severance of charges

complexity of evidence

if similar fact evidence will be used by the Crown

length of trial with respect to the evidence

In deciding to sever counts courts must weigh

prejudice to accused against public interest in avoiding multiple proeedings

Should the court grant accused’s application for severance, the severed count requires

a separate trial

Section of Code that allows for severing

591(3)

a - counts

b- accused persons

Severance applications are more likely to be granted when the trial will be

before a jury

Why is severance application more likely to be granted when there will be a jury trial

jury may not heed instructions regarding limited application and use of evidence

When there is a link between accused persons and the alleged offences they may be

charged in one offence and tried together as co accused

The Crown prefers to try persons together when there are

allegations of a joint enterprise

s 593(1)(b) permits court to

sever one or more accused when it is in the interest of justice

Reasons it is not ideal to sever co accused

separate trials may result in inconsistent verdicts

if each accused places responsibility on the other, both may be acquitted

Court should consider an application to sever when

2 or more co accused have antagonistic defences

where evidence is admissible against only one

Section 486 of CCC deals with

excluding members of the public from a hearing

Section 486(1) allows judge to exclude the public when it is in the interests of/necessary for

public morals

maintenance of order

proper administration of justice

necessary for national defence

Consideration of proper administration of justice includes

protecting interests of witnesses under the age of 18 (and other participants)

s 486(3) indicates

either Crown or accused may apply for public exclusion order and for judge to provide written reasons for not doing so

486.4(2)

Judge must order restriction of publication of identifying information of complainant or witness under 18 (for sexual offences)

486.4(1)

discretionary order to protect identification of witness over age 18 for sexual offence

486.5(1) and (2): allows judge to restrict publication of information that identifies

victim, witness, justice system participant if order is necessary for proper administration of justice

486.5(4)

order restricting publication of information requires written application with notice to the Crown, accused, other person affected

485.5(6)

judge may hold hearing in private to determine if order restriction publication of information that would identify a participant should be made

486.5(7): sets out factors for judge to consider when making order to restrict publishing identifying information

right to fair and public hearing

if there would be real and substantial risk of significant harm

if order is necessary to protect

importance of encouraging victims/witnesses to report offences

if alternatives exist

beneficial or harmful effects of proposed order

impact of order on freedom of expression of people affected

other relevant factors

Section of CCC dealing with release of exhibit for scientific or other testing purposes on application by crown or defence

605(1)

Before an item is marked as an exhibit, a ___ may be made by ___ to have it tested by their own expert

motion

either party

s 605 order will be granted to the accused where

there is an air of reality that examination will support a defence available to the accused

Under s 605, ____ must be given to the accused or Crown

notice

Under s 605(2), failing to abide by conditions of exhibit release order is

punishable by contempt of court

Case that deals with forensic testing of exhibits post trial

R v Hay

Section 11b of the Charter

right to be tried within a reasonable time

When there is an unreasonable delay, accused is entitled to bring

application for stay of proceeding

When considering a delay, time runs from when to when

when the information is laid until trial is concluded

New principles established in 2016 regarding determination of unreasonable delay by R v Jordan are referred to as

the Jordan analytical framework

Presumptive ceiling for summary conviction/provincial offences (OCJ)

18 months

Presumptive ceiling for indictable matters (SCJ)

30 months

If a delay is attributed to or waived by the defence, then

delay does not count toward the presumptive ceiling

Delay factors that may be attributable to the defence

accused directly contributed to delay or their actions were deliberate tactics to postpone proceedings

time amassed by accused when doing upfront work towards resolution

counsel not available for CPT or JPT

change of counsel

Burden is on the ____ to prove accused’s actions were deliberate or calculated and therefore the defence contributed to the delay

Crown

Length of delay attributable to the accused is deducted from

overall length of delay in determining if it fits in the presumptive ceiling

Delay attributable to Crown include

delayed disclosure

workload pressures

change in crown attorney

conduct of crown and police

unavailable crown witneses

Any delay due to the Crown is

added to the delay calculation

Institutional delays include

lack of resources

Institutional delays are not fault of Crown but (do or do not) toward delay calculation

do

Once presumptive ceiling is exceeded, there is an

automatic presumption the delay is unreasonable and therefore breaches 11b

When ceiling is exceeded, onus is on the - to rebut the presumption of unreasonableness

prosecution

To rebut presumption of unreasonableness Crown must show

exceptional circumstances

Exceptional circumstances to rebut presumption of unreasonableness means

situations that are reasonably unforeseen or unavoidable and cannot reasonably be remedied

Two categories of exceptional circumstances

discrete events

particularly complex cases

Discrete events

unexpected events

Particularly complex cases

involve complex disclosure or the need to train all parties on a new system

Delay from exceptional circumstances is - from overall calculation

deducted

Defence may bring delay application even if period of delay falls within presumptive ceiling if it can establish that

it took meaningful steps to expedite proceedings

case took markedly longer than it should have