Chapter 7: Classification of Offences, Elections & Jurisdiction of the Court

These flashcards cover key concepts from the lecture on classification of offences, elections in court, and jurisdiction, helping in reviewing for the exam.

Indictable Offence

A serious crime prosecuted by indictment, typically leading to harsher penalties.

Summary Conviction Offence

A less serious offence prosecuted summarily, with penalties usually less severe than indictable offences.

Hybrid Offence

An offence that can be prosecuted either as a summary conviction or by indictment, at the discretion of the Crown.

Jurisdiction

The legal authority of a court to hear a case and apply penalties.

Territorial Jurisdiction

The geographical area within which a court has the authority to hear cases.

Crown Election

The Crown's discretion to choose the mode of trial for a hybrid or indictable offence.

Limitations Period

Time restrictions on prosecuting an offence.

Preliminary Inquiry

A hearing to determine if there is enough evidence to proceed to trial for serious offences.

Absolute Jurisdiction

Certain offences that can only be tried in provincial courts.

Exclusive Jurisdiction

Offences that can only be prosecuted in superior courts.

Section 553 Offences

Offences over which provincial courts have absolute jurisdiction.

Section 469 Offences

Serious offences such as murder that are exclusively tried in superior courts.

Arraignment

The court process of calling the accused, reading charges, and asking for a plea.

Crown Override

The Crown's ability to compel a trial by jury for certain offences.

Judicial Override

A provincial court judge's power to reject an election of trial under certain conditions.

Civil Infraction

A minor violation of regulations that does not lead to imprisonment.

Nullity

A legal term describing a judgment that has no legal force due to lack of jurisdiction.

Waiver of Charges

The process allowing an accused to plead guilty to an offence in a different jurisdiction.

Change of Venue

The relocation of a trial to a different court district.

Post-Charge Delay

The period from when charges are laid to when the trial occurs, affecting rights under s. 11(b).

Pre-Charge Delay

The time between an offence being committed and the charges being laid.

Stay of Proceedings

A court order to halt a trial due to unreasonable delay or other issues.

Regulatory Offences

Minor violations typically not resulting in criminal records.

Contraventions Act

Legislation introducing ticketing for less serious federal contraventions.

Judicial Stay

A halt to legal proceedings ordered by the court because of a violation of the charter rights.

Section 11(b) of the Charter

A provision guaranteeing the right to a trial within a reasonable time.

Jordan Framework

Guidelines established to assess what constitutes a reasonable trial delay.

Prejudice

Harm or detriment suffered by an accused due to delays in trial or proceedings.

Evidentiary Rulings

Decisions made by a court regarding what evidence can be admitted in trials.

Charter of Rights and Freedoms

The constitutional document outlining rights and freedoms in Canada.

Judicial Review

A higher court's review of a lower court's decision to examine legality.

Delay Assessment

Evaluation of whether trial delays violate an accused's rights.

Re-Election

The ability of an accused to change their trial election under certain legal provisions.

Smythe, 1971

A case referring to the discretion of the Crown in prosecuting offences.

Court Structure

The hierarchical organization of courts at the provincial and federal levels.

How are offences in Canada classified and what Criminal Code parts govern them?

Offences are divided into three categories:

1. Indictable Offences: Prosecuted by indictment under Parts XIX & XX of the Criminal Code.

2. Summary Conviction Offences: Prosecuted summarily under Part XXVII of the Criminal Code.

3. Hybrid (Dual) Offences: May be prosecuted either as a summary conviction or by indictment, at the Crown's discretion.

What are the characteristics and creation authority for Indictable Offences?

Seriousness: Most serious offences.
Creation: Only the federal government can create indictable offences.
Penalties: Maximum penalties usually 2, 5, 10, or 14 years, or life imprisonment (set out in the charging section). If no punishment is provided, the maximum is five years or less (s. 743 CC).
Example: S. 124(CC) 'Every one who…[sells an office]… is guilty of an indictable offence & liable to imprisonment for a term not exceeding 5 years.'

What are the characteristics and creation authority for Summary Conviction Offences?

Seriousness: Least serious offences.
Creation: Can be created by both federal and provincial governments.
Identification: Charging section indicates the offence is 'punishable on summary conviction.'
Maximum Penalty (s. 787(1) CC): Unless otherwise provided, a fine of not more than 5,000, a term of imprisonment of not more than two years less a day (increased in 2019), or both.

What are the characteristics and creation authority for Hybrid or Dual Offences?

Creation: Only the federal government can create hybrid offences.
Nature: Permits the Crown to proceed either by summary conviction or by indictment (s. 215(3) CC is an example).
Identification: The charging provision explicitly lists both options.
Crown Discretion: The decision to elect indictment or summary conviction is in the sole discretion of the prosecutor (Smythe, 1971), usually made at the arraignment.

How does the classification of an offence affect trial procedures and other consequences?

Classification determines:

• How the trial is conducted (Parts XIX and XX for indictable; Part XXVII for summary).

• Available appeal procedures and sentencing options.

• Powers of arrest.

• Whether the accused must appear for the Identifications of Criminals Act.

• The waiting period for a pardon under the Criminal Records Act.

What are 'Infractions' or 'Regulatory Offences,' and what is the significance of the Contraventions Act (1996)?

Infractions (Regulatory Offences): Minor violations typically not resulting in criminal records, often related to commerce, trade, or industry regulations.
Contraventions Act (1996): Introduced ticketing for less serious federal contraventions (where imprisonment is not an option) to avoid criminal convictions (s. 4). A person convicted of a contravention does not have a criminal record (s. 63).

Describe the Canadian court structure for criminal matters.

Accused persons are tried in one of two levels of court:

1. Provincial Court: Judges appointed by the provincial government; tries all summary conviction offences, some indictable matters, and conducts preliminary inquiries for other indictable matters.

2. Superior Court of Criminal Jurisdiction: Judges appointed by the federal government (e.g., Ontario Superior Court of Justice); tries more serious indictable matters.
   Nunavut: Operates a unified court system (Nunavut Court of Justice).

When does an accused person have no election as to the mode of trial?

The accused has no choice but to be prosecuted in the Provincial Court or Superior Court in the following cases:

• All provincial offences.

• All summary conviction offences in the Criminal Code or other federal statutes.

• All hybrid offences where the Crown has decided to proceed by way of summary conviction.

• All indictable or hybrid offences listed in section 553 of the Criminal Code, even if the Crown proceeds by indictment.
  Note: For these offences, there is no preliminary inquiry and no jury trial.

What are Section 553 Offences and their implications?

Section 553 Offences: Provincial courts have absolute jurisdiction over these offences, meaning the accused cannot elect to be tried in Superior Court.
Examples: Keeping a gaming house, cheating at play, and most thefts not exceeding 5,000 (s. 553 CC).
Consequence: No preliminary inquiry and no jury trial.

What are Section 469 Offences and their implications?

Section 469 Offences: These are serious offences that are exclusively tried in a Superior Court of Criminal Jurisdiction (s. 469 CC).
Examples: Treason, sedition, and murder.
Mode of Trial: As a rule, these offences must be prosecuted before a judge and jury (s. 471 CC).
Judge-Alone Exception: May be tried by a Superior Court judge without a jury only if both the accused and the Attorney-General consent (s. 473 CC). Consent can only be withdrawn if both agree (s. 473(2) CC).

When does an accused person have an election for their mode of trial, and what are the choices?

The accused has an election when the Crown is proceeding by indictment for a hybrid offence (not in s. 553) or an indictable offence (not in s. 469 or s. 553).
The accused has three choices (s. 536(2) CC):

1. Trial by Provincial Court judge.

2. Trial by Superior Court judge without a jury.

3. Trial by Superior Court judge and jury.
   Preliminary Inquiry: An accused who elects trial by a superior court judge or by judge and jury may have a preliminary inquiry if the maximum sentence is 14 years imprisonment or more.

How can the Crown or judiciary override an accused's election regarding the mode of trial?

1. Crown Override (s. 568 CC): The Crown can compel a trial by judge and jury for offences punishable by more than five years' imprisonment.

2. Judicial Override (s. 567, 565 CC): In multi-accused cases with different elections, a provincial court judge can refuse to accept certain elections, deeming the accused to have elected trial by judge and jury.
   Re-Election: Rules are in sections 561 to 563.1 CC. The Crown is not required to give reasons for refusing consent to an accused's re-election (Ng, 2003).

What is jurisdiction in a legal context, and what happens if a court lacks it?

Jurisdiction: The legal authority of a court to hear a case and apply penalties. Lacking jurisdiction renders a judgment a nullity.
Nullity: A legal term describing a judgment that has no legal force due to a defect such as a lack of jurisdiction.
A court must have:

• Jurisdiction over the offence

• Jurisdiction over the person (e.g., criminal courts cannot try an 11-year-old child).

• Territorial Jurisdiction

• Time Limitations

What are the time limitation periods for prosecuting different types of offences?

• Indictable Offences: Generally no time limitation, except where a specific statute provides one (e.g., treason (s. 48(1) CC) has a 3-year limit).

• Summary Conviction Offences (s. 786(2) CC): Proceedings must be instituted no more than 12 months after the offence arose, unless parties agree otherwise or a statute provides otherwise.

• Hybrid Offences & Time Limits: If the Crown proceeds by indictment, the 12-month limit does not apply. If the Crown proceeds summarily after the 12-month limit, the proceedings are a nullity, but the Crown may recommence by indictment (Dudley, 2009).

Explain the concept of 'Waiver of Charges' (s. 478(3) CC) in relation to territorial jurisdiction.

Waiver of Charges (s. 478(3) CC): Allows an accused to plead guilty to an offence (excluding s. 469 offences) committed in one province in a different province, with the consent of the applicable prosecutor.
Waiver within same province: Section 479 CC allows this within the same province.
General Rule (s. 478(1) CC): A court in one province generally cannot try an offence committed entirely in another.

What is a 'Change of Venue' (s. 599 CC) and when is it granted?

Change of Venue: The relocation of a trial to a different court district, away from the county or municipality where the offence occurred.
Application (s. 599 CC): The Crown or accused may apply to move the trial to another territorial division of the same province.
Test: The ultimate concern is to ensure the accused has a fair trial by moving the trial when it is 'expedient to the ends of justice,' typically in high-profile cases where publicity could compromise juror impartiality.

How does pre-trial delay affect an accused's rights under Section 11(b) of the Charter?

Constitutional Right (s. 11(b) of the Charter): Guarantees the right to be tried 'within a reasonable time.'
Commencement of Clock: The clock for measuring delay begins when the person is charged.
Remedy: A judicial stay of proceedings (under s. 24(1) of the Charter) is the typical remedy for unreasonable delay.
Delay Distinction:

• Post-Charge Delay: The time from charge to trial; covered by s. 11(b).

• Pre-Charge Delay: The time between the offence being committed and charges being laid; not covered by s. 11(b). Excessive pre-charge delay may only lead to a stay if it causes sufficient prejudice to violate the community’s sense of fair play and decency (abuse of process).

What is the 'Jordan Framework' and how does it relate to s. 11(b) of the Charter?

Jordan Framework: Guidelines established by the Supreme Court of Canada in Jordan (2016) to assess what constitutes a reasonable trial delay. It sets presumptive ceilings for court delays (e.g., typically 18 months for provincial court cases and 30 months for superior court cases) beyond which delay is presumed to be unreasonable, leading to a stay of proceedings unless the Crown can rebut the presumption.

Under what conditions can an accused waive their Section 11(b) Charter right to a trial within a reasonable time?

Right Waived: The accused can waive their right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter.
Context: Common for time periods required by the accused for applications (e.g., Charter applications, disclosure requests) and rulings on those applications.
Validity Standard: Waivers must be 'clear and unequivocal,' made 'with full knowledge of the rights the procedure was enacted to protect,' and 'of the effect that waiver will have on those rights' (Askov 1990; Jordan 2016; Cody 2017).
Effect of Waiver: The waived period is subtracted from the overall length of the delay when calculating whether the presumptive ceiling (Jordan framework) has been exceeded.

Does Section 11(b) of the Charter apply to delays between conviction and sentencing, and how is it assessed?

Applicability (MacDougall, 1998): Yes, s. 11(b) of the Charter extends to the sentencing process. Sentencing must occur within a reasonable time following conviction or plea.
Assessment: Delay is assessed based on whether it was systemic, whether the accused suffered prejudice (e.g., Justice McLachlin in MacDougall found no prejudice), and whether the accused pressed the Crown to proceed.

Does Section 11(b) of the Charter apply to delays caused by appeals?

Inapplicability (Potvin, 1993): No, s. 11(b) of the Charter does not apply to delay caused through the appellate process.
Potential Application of s. 7: While s. 11(b) does not apply, s. 7 (the right to fundamental justice) may apply if the delay 'would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency' (Potvin 1993, para. 70), to prevent an 'abuse of a court’s process through oppressive or vexatious proceedings.'

Who introduced the first Criminal Code in Canada and what was its impact on offence classification?

John Sparrow David Thompson introduced the first Criminal Code in 1892, establishing the current complex three-fold classification system, building on Sir James Fitzjames Stephens' English Draft Code (1879).

What was the Law Reform Commission of Canada's (1986) proposal regarding offence classification?

The Commission proposed abolishing the three-fold classification, suggesting only 'crimes' (prison possible) or 'infractions' (no prison, removed from Criminal Code), but their recommendation was not adopted.

What implications does section 64 of the Contraventions Act (1996) have for persons convicted of a contravention?

Section 64 of the Contraventions Act states that a contravention requires disclosure of such convictions for any employment where the federal government has jurisdiction, despite not resulting in a criminal record (s. 63).

What does Criminal Code section 235 indicate regarding penalties for certain indictable offences?

Section 235 of the Criminal Code, for example, sets out specific minimum penalties for certain indictable offences, which are exceptions to the general rule of maximum penalties.

Provide an example of an indictable offence as outlined in the Criminal Code.

An example of an indictable offence is found in section 124 of the Criminal Code: 'Every one who…[sells an office]… is guilty of an indictable offence & liable to imprisonment for a term not exceeding 5 years.' Other examples include sections 209, 236, 247, and 345.

What is an example of an exception to the maximum penalty rule for summary conviction offences under s. 787(1) CC?

An exception is the offence of making a false statement on a prospectus under the Ontario Securities Act, which carries a maximum sentence of a fine not more than 5million5million or 'imprisonment of not more than 5 years less a day,' or both, significantly exceeding the standard s. 787(1) limits.

What was the Law Reform Commission's critique of hybrid offences and recent legislative changes?

The Law Reform Commission criticized hybrid offences due to unregulated Crown discretion. Despite recommendations to abolish them, their number expanded; in 2019, Parliament changed 118 purely indictable offences to hybrid and some summary convictions to hybrid (e.g., indecent act in public place).

How does England's judicial system differ in handling hybrid offences compared to Canada?

In England, the decision on whether a hybrid offence proceeds by summary conviction or indictment is made by the judge, unlike in Canada where it is at the sole discretion of the Crown.

Under what circumstances may a court dispense with the Crown's consent for a judge-alone trial for a s. 469 offence?

A court may dispense with the Crown's consent if it is based on an improper motive, such as the identity of the trial judge or other factors not related to the public interest, as highlighted in the Bird, 1996 case.

What does 'jurisdiction over the person' entail, and what does the Criminal Code (s. 2) include in the definition of 'person'?

Jurisdiction over the person refers to the court's authority over the individual charged (e.g., criminal courts cannot try an 11-year-old child). Section 2 of the Criminal Code's definition of 'every one' and 'organizations' includes public bodies and organizations as 'persons.'

How do time limitations for prosecution originate in Canadian law, and what specific provision addresses treason?

English Common Law established no time limits on prosecution, a default retained by s. 8(2) of the Criminal Code unless modified by legislation. An exception is treason (as defined by paragraph 46(2)(a)), which has a 3-year limit per section 48(1) and section 41(1) of the Criminal Code.

When are summary conviction proceedings considered 'instituted' for the purpose of time limitations under s. 786(2) CC?

For summary conviction offences, proceedings are 'instituted' when an information is laid or sworn before a justice (s. 504 CC). This act interrupts the 12-month time limitation period.

What are some special cases where the Criminal Code grants jurisdiction to a court despite typical territorial limitations?

The Criminal Code grants jurisdiction in special cases, such as offences committed on waters or bridges between territorial divisions (s. 476(a) CC), allowing courts to hear cases that cross traditional geographical boundaries.

Can an accused be convicted in Canada for an offence committed outside of Canada, and what Criminal Code section applies?

Generally, an accused cannot be convicted in Canada for an offence committed outside of Canada (s. 6(2) CC), unless a specific statute states otherwise, such as for piracy or terrorism-related offences (ss. 83.02–83.04 CC).

How has the application for a 'Change of Venue' evolved, particularly regarding academic expertise?

Historically, early attempts to use social science research (e.g., surveys) for change of venue applications were initially unsuccessful (Threinen, 1976). However, academic expertise is now being reintroduced and considered in assessing juror impartiality due to high-profile publicity.

Beyond a judicial stay, what alternative remedies might be considered for unreasonable pre-trial delay?

Some argue that a stay of proceedings should be an extraordinary remedy, and other alternatives such as sentence reduction or evidentiary rulings should be considered first, as suggested by Sherrin (2017).

Define Certiorari and Mandamus in the context of legal applications related to court proceedings.

Certiorari is an application to a higher court to quash (overturn) the decision of a lower court. Mandamus is an application to a higher court to compel a lower court to perform a specific action.

Provide examples of significant cases illustrating unreasonable pre-trial delay and the application of s. 11(b) of the Charter.

1. Jamie Bacon: Faced a post-charge wait of nine years for murder and conspiracy, leading to charges being stayed in 2017 due to systemic and complex case factors.

2. Adam Picard: First-degree murder charges were stayed in 2016 after a four-year delay, demonstrating the application of the Jordan framework's presumptive ceilings.