Penal Procedure

First class - Lesson 1

Penal proceedings

• everything that is coming to play form the moment that you are arrested

• formal process

• no legal issues = no legal proceedings

• balance of individual rights

• goes all the way after the judge rendered his decision

Legal proceeding

• various stages

• pleadings = formal written statements which outline the claims and defenses

• discovery = exchanging the information, how we discloses the evidence and documents

• hearings / trials = how are we going to proceed to the hearing, witness testimonies, legal arguments before a judge or jury, presentation of evidence

• judgment = judge decisions

criminal proceedings

• the crown that prosecutes

• since our criminal code is a federal law

• under the protection of the crown

There is 3 different ways to establish the jurisdiction

1. where the offence took place = the territory

2. over the person who committed the offence = competency over the accused

3. over the type of offence that was committed = competency over the offence

Discharge

• absolute discharge

• discharge of the accusation

Territorial jurisdiction

Article 6(2)

• general

• (2) offences outside canada

• subject to this act or any act of parliament

• no persons shall be convicted or discharged

• under section 730 of an offence committed outside canada

2 types of exceptions

• legal and jurisprudential

• article 7 = extra territorial jurisdiction for some offences ( sexual assault against children )

examples = article 7(4.1) offences in relation to sexual offences against children

• exceptions

• Canadian citizen or permanent resident commits an offence against kids outside canada = deemed to commit that act or omission in canada

• Article 465(3) and (4) ; conspiracy

(3) conspiracy

• every who, while in canada

• conspires with anyone

• to do anything

• referred in subsection (1) in canada

• shall be deemed to have conspired in Canada to do that thing

(4) idem

• everyone who

• while in a place outside canada

• conspires with anyone to do anything

• referred to in subsection (1) in canada to do that thing

• summary of (3)

• when a person conspires inside CA to commit a crime outside CA = as of committed in CA

• summary of (4)

• when a person conspires outside of CA commit a crime inside CA = as if conspired inside CA

• R.c Libman

Provincial jurisdiction

Article 470 - jurisdiction over person

• subject to the criminal code

• every superior court and every court of criminal jurisdiction

• court of criminal jurisdiction = court of Quebec, superior court, municipal court

• basically, you are going to be trial where you committed your crime, but you can ask to be trial where you lived

• WHAT THE ARTICLE SAID:

• subject to this act

• every superior court of criminal jurisdiction

• and every court of criminal jurisdiction

• that have power to try an indictable offence

• is competent to try an accused for that offence

• (a) if the accused is found, arrest or in custody within the territorial jurisdiction of the court: or

• (b) if the accused has been ordered to be tried by

• (i) that court, or

• (ii) any other court, the jurisdiction of which has by lawfull authority been transferred to that court

exceptions of 470

Article 476- special jurisdiction

• confers the jurisdiction in two jurisdictions

• theft in QC and drove to ON and dispose of what he stole and did not stop when the police officer ask him to = crime start in one and finish in another

Article 478 - offence committed entirely in one province

• offence completely commits in another province

• subject to this act

• a court in a province

• shall not try

• an offence committed entirely in another province

Offence outstanding in same province

• article 479

• can plaid guilty in one province and be sentenced in another province

• where an accused is charged with an offence

• that is alleged to have been committed in the province in which he is

• he may

• if the offence is not an offence mentioned in section 479

• appear before a court or judge

Jurisdiction over the offence vs over the accused

Ratione personae

• quality of the person

• is a minor

• someone in military

• over the accused

competency

• the reason what exactly the offence was

rationae materiae

• over the offence

• relations to the subject to litigation

exclusive jurisdiction of the superior court

• highest first instance court

general rules

• superior court = competent to try an indictable offences = article 468

• but has exclusive jurisdiction on certain listed offences = article 469

Article 468

• every superior court

• of criminal jurisdiction

• has jurisdiction

• to try any indictable offence

Article 469

• exclusive of the superior court

• attempt murder is not

• the other one are exclusive to superior court

Ration personae

• article 470 - general rule

• not going to be trial in superior corut

Absolute jurisdiction of the provincial court - COURT OF QUEBEC

• Article 553

• trial without a jury

• obvousily, you are not in superior court

Summary

• an offence punishable on summary conviction

• not as violent, not as bad as indictable

• assault nto causing bodily harm

• dui

• fraud under 5k

• mischief

• nudity in a park

indictable

• more serious crime

• murder

• assault causing bodily harm

• dui causing death

• thef over 5k

hybdrid

• two paragraphs

• give prosecution to prosecute under summary offence or indictable

Quebec judicial system

• different courts that we have

• municipal courts = summary offence, it is the kind that is prosecuting

• court of Quebec = summary + indictable offence

• court of appeal = appeals

• superior court of Quebec = offences under 469 + appeals for summary convictions

Lesson 2

Supreme court of canada

• highest in our country

• create in accordance with the supreme court act

• consist of nine judges, including chief justice

• minimum bench is 5 = for appeals

• located in Ottawa

• last resort or highest cout in canada

• both civil and criminal

• it answer questions = constitutional questions

• in all areas of the law

• very costly

• it chooses their cases in order of importance

• SCC= SUPREME COURT OF CANADA

• issues of national importance

• hears appeal from provincial and federal court, court of appeal of each province, the federal court of appeal and other tribunals

• constitutional issues, criminal law, civil law, administrative law and more

• DISSIDENT = someone that does not agree with a decision

there is 3 ways

1. by leave = referring to a permission that must be ask

2. appeal as of right = file the document, dont need to ask, one of the judge is dissident, open the door for you for appeal

3. by reference = attorney general can referred to the supreme court instead to go all the level of court, can jump straight to the supreme court, constitutional questions, un arret

Court of appeal of QC

• our highest tribunal in the province

• going to hear appeal that come from superior court, supreme court, Quebec court of appeal, federal court appeal

• superior court, court of QC and federal court

• general appeal of all QC

• cannot hear a case that is in appeal in MANITOBA

• 3 judges on bench

• court of justice act = state that will have 3 judges in virtue of section 9 of courts of justice act

• verdict of punishment = it is when the judge is going to decide if you are guilty or not guilty

• appeal on the verdict or appeal on the sentence

• criminal code = federal law regulates the procedure concerning cases

• article 673 = appeal for indictable offences

• article 839 = court of appeal also hear appeals from decision rendered by superior court sitting on appeal from summary conviction and provincial penal offence under s.294

• article 822 = the procedure of an appeal for summary conviction

• article 294 = jurisdiction

• article 675 = a person convicted by a court of first instance on indictment may appeal to the court of appeal

• exceptions = decisions rendered by federal court and small claims court

• appeal in indictable offences are heard by this court under section 673-690

Federal court of appeal

• hear appeal on jurisdiction only

• decisions from decisions of tax court

• has jurisdiction to deal with applications for judicial review of certain federal bodies

The Superior Court

• first level for offences under 469

• 1st instance

• exclusive jurisdiction under certains specific infractions

• 1 judge and 12 jurors = superior court of criminal jurisdiction

• article 473(1) and 598

• composed of 157 judges, including chief justice as well as 111 supernumerary judges governed by judges act

• judges can only act in the territory assigned to them

• special cases = may an accused by tried before a judge of superior court without presence of jury = article 473(1) and 508

• The different roles :

  1- first instance = article 468, hear appeal of summary conviction

  2- on appeal

  3- power of control and supervision

• dual jurisdiction = seat as a court in criminal matters of first instance and as a court of appeal in criminal

  First instance

  • superior court = jurisdiction to try an indictable offence ( ratione materiae)

  • 468 = has jurisdiction to try an indictable offence

  • 469 = attempted murder not heard at superior court, has exclusive jurisdiction over certain crimes listed in 469

  • 470 = person accused of indictable offence, has jurisdiction to try an accused on indictable when : found, arrested or in custody within the territorial jurisdiction of the court

  • summary

  on appeal

  • it hear certain appeals relate to certain decisions

  • decision rendered under criminal code by a judge of the court of Québec, youth division, criminal and penal division, municipal court or justice of the peace

  • relate to summary conviction = article 812

  • relate to decisions made under other federal and provincial statues = article 270 ccp

  • heard after they decide if they can or not

  • make decisions base on first instance court

  • after hearing of the appeal = superior court proceed with trial file (821) or form of a trial de novo (822)

  • trial de novo = art 822(4) = very exceptional

  control and supervisory power

  • overall administrative tribunal and bodies in Quebec

  • exclude the court of appeal

  • article 34 of civil code of procedure

  • on matters through extraordinary remedies = certiorari, abeas corpus, mandamus, prohibition

  • except = cases provided by law, superintending and reforming power

  Court of first instance

  we found superior court, court of Quebec, municipal court, court of summary conviction

  Superior court

  • jsut summary not indictable ofences

  Court of Quebec

  • first level in summary and indictable

  • the one in Montral

  • has jurisdiction of any offence under federal and provincial law

  • exception = no jury at court of Quebec, trials before a court composed of jury and a judge of a superior court

  • the civil division

  • criminal and penal division

  • youth chamber

  • 1st instance with jurisdiction in civil­, criminal and penal matters and youth

  • hybrid offence = has the choice to go under summary or indictable offence

  • article 319, 320

  • article 264.1

  • prosecutor = the crown

  • article 82 = in criminal and penal, the court have jurisdiction to the extend provided by law

  • civil judges are not going to hear criminal cases

  • court of Quebec criminal = divided in 2 primary cases = summary and indictable offences

  • 3 divisions = criminal and penal, youth chamber, civil and small claims

  Municipal court

  • first level in summary convictions

  • jurisdictions in civil matters, collection of taxes, liscences or permits + some penal proceedings

  • hear more and more criminal cases

  • only sunmmary offences

  • parking tickets

  • when act under criminal code = municipal judge acts as provincial judges