PRESENTING THE CASE FOR THE CROWN

Transcription

1 PRESENTING THE CASE FOR THE CROWN Brian A. Hendrickson Saskatchewan Justice, Public Prosecutions Ominica Street West Moose Jaw, Saskatchewan S6H 6V2

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3 Saskatchewan: Bar Admission Program i TABLE OF CONTENTS I. THE ROLE OF THE CROWN PROSECUTOR... 1 II. PREPARING AND PRESENTING A DOCKET COURT FILE... 4 A. GENERAL COMMENTS... 4 B. FILE DOCUMENTS The Information Prosecutor Information Sheet Criminal Record Victim Impact Statements Release Documents... 7 C. DISCLOSURE... 8 D. ALTERNATIVE MEASURES...10 E. APPEARING IN DOCKET COURT...11 F. SUMMARY CONVICTIONS VS. INDICTABLE...12 G. PLEA DISCUSSIONS...13 H. SPEAKING TO SENTENCE...14 I. STAY OF PROCEEDINGS AND WITHDRAWAL OF CHARGES...16 J. ADJOURNMENT...17 III. PREPARING AND PRESENTING A BAIL HEARING FILE...18 IV. PREPARING AND PRESENTING A TRIAL FILE...20 A. FILE PREPARATION...20 B. PRELIMINARY HEARING...21 C. WITNESS PREPARATION...24 D. EXAMINATION IN CHIEF...26 E. SPECIFIC WITNESSES The Expert Witness The Child Witness...31 F. CROSS EXAMINATION...34 G. REBUTTAL...36 H. OBJECTIONS AND ARGUMENT...37 I. JUDGE AND JURY...37 V. CONCLUSION...40 APPENDICES: Appendix A Sample Form, Stay of Proceedings...A - 1 Appendix B Sample Form, Notice of Recommencement... B 1 Appendix C Sample Form, Indictment... C 1

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5 Saskatchewan: Bar Admission Program 1 This paper has been prepared to discuss certain aspects of the job of a crown prosecutor. While practices will vary from prosecutor to prosecutor, I would like to think my observations have some general application. I will discuss the following: the role of the crown prosecutor; preparing and presenting the case in docket court; preparing and presenting a bail hearing file; and preparing and presenting a trial file. Two introductory comments: firstly, I have attempted to avoid too much overlap with other presentations, and I also attempted to coordinate my presentation with the paper prepared by my colleague, Mr. Mackenzie; secondly, any errors or omissions are my own - I do not speak for the Department of Justice. I. THE ROLE OF THE CROWN PROSECUTOR The role of the prosecutor is often misunderstood not only by the public but by other participants in the criminal justice system. Defence counsel vigorously advocates for a client; a judge weighs the evidence, considers submissions of counsel and renders a verdict. What does a crown do? Is he or she the lawyer for the victim? Is he or she the lawyer for the police? In the Canadian criminal justice system, a prosecutor is not lawyer for the police or victim. The crown should fairly present relevant evidence to the court and should not care about a conviction. The crown must disclose evidence in his or her possession to defence counsel, unless privilege or other exceptions apply; a crown is not entitled to withhold relevant evidence only because it benefits the accused or makes the case more difficult to prove. In short, the crown does not win or lose. The classic statement of the role of the crown is set out in Boucher v. The Queen, 110 CCC 263 (SCC) wherein the Supreme Court says the following at page 270:

6 2 Saskatchewan: Bar Admission Program "It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. In Regina v. Logiacco (1994), 11 CCC (3d) 374 at 378 (Ont. CA), the court said at page 378: The crown prosecutor must proceed courageously in the face of threats and attempts at intimidation. He must see that all matters deserving of prosecution are brought to trial and prosecuted with diligence and dispatch. He must be industrious to ensure that all the arduous preparation has been completed before the matter is brought before the court. He must be of absolute integrity, above all suspicion of unfair compromise or favouritism. The crown prosecutor must be a symbol of fairness, prompt to make all reasonable disclosures and yet scrupulous in attention to the welfare and safety of witnesses. Much is expected of the crown prosecutor by the courts. The community looks upon the crown prosecutor as a symbol of authority and as a spokesman for the community in criminal matters It has been said that the functions of the Crown prosecutor are quasi-judicial Great trust is placed in the crown prosecutor by the courts and by the public. Heavy obligations are imposed upon him in his quasi- judicial role. To be worthy of the trust and reliance which is placed in his office, he must conduct himself with becoming dignity and fairness. In R v. Cook (1997), 114 CCC (3d) 481 (SCC), the court said the following at page 489: while it is without question that the crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth. Nor should it be assumed that the crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country s criminal law mechanism. May 2003

7 Saskatchewan: Bar Admission Program 3 Prosecutors are also members of the profession and are generally subject to the jurisdiction of the Law Society. In Kreiger v. The Law Society of Alberta, [2002] S.C.J. No. 45, the Supreme Court held the Law Society of Alberta had jurisdiction to investigate whether a prosecutor s failure to provide disclosure was motivated by bad faith or dishonesty. The prosecutor in this case had received preliminary results of a DNA test which he did not provide to the defence. He proceeded with a preliminary inquiry while awaiting a final report. When there was a complaint to the Law Society, Kreiger applied to the court for a declaration that the Law Society was without jurisdiction. The Supreme Court stressed that prosecutors had a certain discretion which cannot be interfered with. This core discretion includes whether to prosecute or not. Decisions made within this area cannot be reviewed by anyone except in cases of flagrant impropriety or in cases of malicious prosecution. The Law Society can, however, regulate in matters of professional conduct or ethics. Disclosure is a matter of professional conduct, not professional discretion. In conclusion, the prosecutor need not abandon the role of the advocate. We can advance the prosecution case vigorously. We are, however, expected to be fair. We are expected to exercise our discretion properly and without improper motive. We must not abuse our power. The prosecutor cannot be a mouthpiece for the police and is expected to withdraw or stay inappropriate charges. In my opinion, part of the quasi judicial function we perform involves a dispassionate review of the evidence against an accused and making a considered decision as to whether the case if sufficient. We must be sensitive to the needs of the victim but we cannot let our concerns for the victim detract from our obligations. May 2003

8 4 Saskatchewan: Bar Admission Program II. PREPARING AND PRESENTING A DOCKET COURT FILE A. GENERAL COMMENTS Docket court is the first appearance court. When a person is charged with a criminal offence, police serve him with a form of process to compel his attendance in court. The first appearance court is where the accused is confronted with the charge, enters a plea and makes an election. If a trial date is set, it is arranged in docket court. Trials are not held in docket court and witnesses are not subpoenaed to give evidence. The police investigate offenses and the crown prosecutes. As a result, most often the police have prepared the charges against the accused and completed their investigatory file prior to the appearance of the accused in docket court. There may be cases in which the crown is asked to provide advice in the investigatory stage; such cases may involve search warrant or DNA issues. However, for the most part, the police file is relatively complete when it is received by the docket court prosecutor. Practices vary from centre to centre, but in Moose Jaw, we usually get the police file two or three weeks in advance of the docket court date. The prosecutor is independent of the police. The decision to proceed with criminal charges through the courts is made by the crown prosecutor. In determining whether to proceed with charges or to instruct that charges be laid, a twofold test is applied: (a) Is there a reasonable likelihood of conviction? A bare prima facie case is not sufficient. Consideration should be given to the availability and credibility of witnesses, the nature of their evidence, the nature of defences available or disclosed and other factors which could affect the likelihood of conviction. Almost certainly, it is harder to make this determination at docket when no witnesses have testified. (b) Is it in the public interest to proceed? Certain factors may be considered in this determination including the seriousness of the charges, significant aggravating or mitigating circumstances, the age and background of the accused, the degree of staleness of the charge and whether the consequences of a prosecution would be disproportionally harsh. Revised June 2005

9 Saskatchewan: Bar Admission Program 5 When I first started prosecuting, I remember a colleague saying we get paid to run trials. In my view, this is only partly true. We also get paid to not run trials. A prosecutor has to ensure that appropriate cases are prosecuted. It isn t every charge laid by the police that should be proceeded with in court. B. FILE DOCUMENTS A file at docket should include copies of the following material: (a) (b) (c) (d) (e) (f) (g) the Information; a police report, witness statements, a prosecutor information sheet, a current criminal record for the accused, victim impact statements; and release documents. 1. The Information In my view, the most important document on a docket file is the Information. The Information is a sworn written charge against the accused. It is a document of factual allegations constituting an offence in law. See also sections 504 through of the Criminal Code and sections 788 and 789 of the Code and Form 2. Also, see the pages with suggested wording of charges in the back of the annotated Codes. When I review an Information at docket, I check for the following: a. Typographical errors Obvious errors should be caught at docket and the Information amended. Did the Information allege the offence occurred in Moss Jaw rather than Moose Jaw? b. Does the time frame comply with the evidence? While time is normally not of the essence, the Information should accurately establish the time frame supported by the evidence. Use of the phrase "on or about" is acceptable. In addition, if the offence is a continuing offence, use the linking word "between".

10 6 Saskatchewan: Bar Admission Program c. Is the jurisdiction correct? A provincial court judge has jurisdiction to preside throughout Saskatchewan but the Information should accurately reflect the location of the offence if possible. d. Is the name of the accused correct? Should we add an alias? e. Does the Information disclose an offence known in law? Is it the right charge? The offence charged should correspond to the evidence. For example, if the evidence suggests the accused was found passed out behind the drivers wheel, the charge of care or control is more appropriate than operate a motor vehicle. f. Should there be more than one count in the Information? Each count must in substance contain a statement that the accused committed an offence therein specified. The statement must be sufficient both as to legal and factual particulars but need not state all of the necessary elements of the offence. See section 581 of the Criminal Code. g. Is the jurat sworn properly? An Information must contain the date the Information was sworm. Platt v. R.; R. v. Cowan, [1981] 4 W.W.R. 601 (Man. Q.B.); and the jurisdiction of the justice Zastawny v. R. (1970), 10 C.R.N.S. 155 (Sask. Q.B.) h. Is the complainant correctly identified in the Information? i. Is the Information sworn within six months of the offence or must we proceed by way of indictment? Where the crown proceeds summarily, the Information must be laid within six months of the offence unless the crown and defence agree otherwise. See section 786(2) of the Criminal Code. j. Should we jointly charge accused persons? The crown should decide if it is necessary in a later trial to call one accused as a witness against another accused. If so, the two offenders should be separately charged. There may be cases where joint charges are appropriate. Proceeding in this fashion lessens the number of trials. 2. Prosecutor Information Sheet This is a brief one or two page document designed to give a busy docket court prosecutor a quick summary of the essential facts of the offence. My practice is to review the file in addition to the prosecutor information sheet but it is valuable as a time saver. May 2003

11 Saskatchewan: Bar Admission Program 7 3. Criminal Record Usually, the police provide a criminal record based upon a CPIC check. CPIC is a national data base. A crown should always confirm either with counsel or an unrepresented accused that the record is accurate. In addition, the crown should take care to submit convictions only. Often the CPIC printout contains charges that have been withdrawn or stayed. Where an accused is a serving prisoner, the record should reflect the charges for which he or she is serving time. I also ask the police to determine his or her earliest release date. It should be noted that where there is a dispute as to the criminal record, the procedure to prove prior convictions is set out in section 667 of the Code. This is used rarely as almost always counsel can agree on the accuracy of the record. 4. Victim Impact Statements Section 722 of the Criminal Code says a victim of an offence may file with the court a written statement describing the harm done to or loss suffered by him or her. As a prosecutor, I always try to ensure that the police have advised a victim of the victim services program in our centre and confirm whether the victim has been advised of the right to prepare a statement. I provide a copy of the statement to defence. The crown may also have to edit the statement; the victim statement should not be a rant nor should it refer to other criminal conduct or alleged conduct not before the court. In the case of R.v. D.M.L.G., [2001] S.J. No. 581 (Prov. Ct.), His Honour Judge Halderman was critical of the nature of the form authorized for use in Saskatchewan at the time of the sentencing. 5. Release Documents Part XVI of the Code deals with the procedure compelling the accused to attend court. An accused may be summoned to attend court or issued an appearance notice; such process does not involve the arrest of the accused person. An accused may be arrested and released to appear in court on a recognizance or undertaking usually with conditions of release. The accused may be released by an officer in charge or by the court.

12 8 Saskatchewan: Bar Admission Program C. DISCLOSURE After being provided with the file at docket, I will provide disclosure of the file to defence counsel or an unrepresented accused person upon request. We keep a record of what has been disclosed and when; this is done to ensure there is no confusion over what has been provided. It also helps on any later Charter motion or adjournment request based on an alleged lack of disclosure. The purpose of disclosure is threefold: (a) (b) (c) to ensure that the defence is aware of the case in chief for the prosecution and is adequately able to prepare their defence; to resolve non-contentious and time-consuming issues before the preliminary hearing or trial to ensure more efficient use of court time; and to encourage the early resolution of cases including where appropriate, the entering of guilty pleas. The obligation on the crown is set out in R. v. Stinchcombe, [1991] 3 S.C.R The accused s right to make full answer and defence imposes on the crown a duty to disclose all relevant material to the defence whether the material is inculpatory or exculpatory and whether or not the crown intends to introduce it at trial. The obligation is triggered by a request by the accused. Disclosure should be given over before the accused is called upon to elect or plead. The obligation is a continuing one; therefore, if the crown receives a report or follow-up from the police after docket court but before trial, the crown must still provide disclosure to the accused person. In Chaplin and Chaplin v. The Queen (1995), 96 C.C.C. (3d) 225 (SCC), the court held that, while the crown is under a general duty to disclose all information whether inculpatory or exculpatory, it is not required to disclose evidence that is beyond the control of the prosecution, clearly irrelevant or privileged. The obligation on the crown requires that the crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure. In situations in which the existence of certain information has been identified, but the crown has refused to disclose it, the crown must justify non-disclosure by demonstrating either May 2003

13 Saskatchewan: Bar Admission Program 9 that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge must afford the crown an opportunity to call evidence to justify its position. The test on relevance seems to be whether there is a reasonable possibility that it could assist the defence. See R. v. Anutooshkin (1994), 92 C.C.C. (3d) 159 (BCCA). Where there is a request made for material held by other government agencies, the crown should make reasonable inquiries of the other agencies and if the crown is turned down, he or she should alert defence so they can apply to the court. See R.v. Arsenault (1994), 93 C.C.C. (3d) 111 (NBCA) and the process under R. v. O Connor (1995), 103 C.C.C. (3d) 1 (SCC) for third party records. For the most part, the crown must disclose information in its possession that benefits their case and the accused person. In Moose Jaw, we literally photocopy our complete file for defence. When providing disclosure, prosecutors should review the file to assess whether trust conditions should be imposed restricting dissemination of the information. Where appropriate, prosecutors should require that any or all of the disclosure material must be returned to the police after all proceedings have ended. In R.v. Lucas, 129 Sask. R 141(CA), the court implicitly approved of this practice. Such conditions can also be imposed on unrepresented accused persons. See also R. v. Dixon (1998), 122 C.C.C. (3d) 1 (SCC) - lack of diligence by defence in pursuing disclosure from the crown; R. v. Regan (1997), 124 C.C.C. (3d) 77 (NSSC) - work product privilege extends to crown; and R. v. Girimonte (1997), 121 C.C.C. (3d) 33 (Ont. CA) - disclosure request ought not to be fishing expedition. As a general rule, the defence need not disclose its case to the crown. There are some exceptions to this rule, i.e., where the accused relies on alibi, this should be disclosed to the crown at the first opportunity. See R. v. Cleghorn (1995), 100 C.C.C. (3d) 393 (SCC). Also, section 657.3(c) of the Code requires the accused to disclose the contents of an expert s report prior to calling the witness. See R. v. Stone (1999), 134 C.C.C. (3d) 352 (SCC).

14 10 Saskatchewan: Bar Admission Program D. ALTERNATIVE MEASURES Before proceeding through the criminal court process, a crown should determine if the file should be referred to alternative measures. Such measures are set out in sections 717 to of the Criminal Code. Where the charge is referred to alternative measures, it is handled by an authorized agency. In Moose Jaw, the agency is the John Howard Society but the agencies will vary from centre to centre. The referral often involves a meeting between the offender and victim with the assistance of an independent mediator. Through the dynamics of the meeting, the two parties attempt to reach a resolution. Possible resolutions may involve an apology, contribution to charity, community or personal service, or restitution. If the offender successfully fulfils the terms of the agreement, the crown withdraws the criminal charge. If the offender defaults (i.e., does not comply with the terms of the agreement), the case is returned to ordinary court. The advantage for the offender is that the charge is handled outside the criminal justice system and if successful, there is no conviction. The advantage for the victim is that he or she gets to directly participate in the charge resolution. Policy guidelines prevent certain offences from being referred to alternative measures. For example, drinking and driving offences are not diverted nor are sexual assaults involving child victims. In addition, certain offenders are precluded. The accused person has to acknowledge responsibility for the offence. He or she must not have a recent or related record. This leads to the obvious questions: What is recent? What is related? If the accused is now charged with assault but has two prior thefts on his record, is he precluded from diversion? Defence counsel should discuss this option with the crown if they receive those instructions from the client. As a general rule, the mere fact that a person has gone through diversion previously does not preclude consideration for diversion but it does make it less certain. If the accused has defaulted on prior diversions, this is generally a reason to disqualify him from participating. However, defence should canvass this with the client and consult the crown. Was there some legitimate reason that the prior diversion failed?

15 Saskatchewan: Bar Admission Program 11 E. APPEARING IN DOCKET COURT I encourage counsel to arrive early at docket court. It can be an extremely busy court; in Regina and Saskatoon, for example, the daily docket court list may contain as many as one hundred files. I encourage young counsel to sit through docket court to get familiar with local procedures. You should also determine the procedure used in your court point to recognize counsel. In Moose Jaw, the judge will recognize counsel in the order of their admission to the bar. In larger centres, defence counsel should contact the court clerk prior to court to ensure their matters are dealt with expeditiously. If counsel feel their matter may take some time (e.g., lengthy sentencing submissions), they should alert the court clerk. Often files received from the police require more work and I prefer to keep a file in docket until that work is done. The crown should determine what gaps exist in the file and order the file to be completed. If an adjournment is required to complete the file, it is more easily granted at docket court than at trial. If a not guilty plea is entered, crown should assist the court in estimating the length of time required for trial. There is no exact way of measuring the length of trial time in advance; as general rule of thumb, however, I estimate counsel should be able to fully examine four witnesses every half day of court. Defence counsel should bring their diaries so convenient trial dates are set and crown counsel should know the availability of police and civilian witnesses to ensure the trial can proceed on the assigned date. Time to trial varies from community to community; in Moose Jaw, for example, a trial date can proceed within five or six months from plea. In Cumberland House, I suspect it is much longer. The trial, as a general rule, occurs in the court point closest to the location of the offence.

16 12 Saskatchewan: Bar Admission Program F. SUMMARY CONVICTIONS VS. INDICTABLE The decision to proceed by summary conviction or by way of indictment is made at docket court. The crown should always tell the court how it is proceeding. This decision is important since it largely determines the course of the trial matter and has implications for the accused. This decision determines the level of court available to the accused and whether he has a right to a preliminary hearing. Certain offences are exclusively summary (e.g., cause a disturbance) and others are exclusively indictable (e.g., murder). However, the vast majority of offences are dual offences which means the crown can elect to proceed by way of summary conviction or by indictment. See section 469 of the Code and the Offence Grid in Martin s Annotated Criminal Code. My personal preference is to proceed summarily wherever possible. Changes to the Code have now increased the possible range of sentences for many offences so the potential liability for the accused is about the same whether the crown proceeds summarily or by way of indictment. In addition, the election to proceed summarily allows the matter to proceed more quickly through the courts. The fact that an offender has a lengthy criminal record, has repeated the offence or would be likely to receive a sentence of incarceration of more than six months may warrant proceeding by indictment. Unless the specific Code section establishes a maximum sentence when proceeding summarily (e.g., 18 months for assault causing bodily harm), the general rule is the maximum jail sentence that may be imposed when the crown proceeds summarily is six months. See section 787(1) of the Code. Reference should also be made to section 553 of the Code. This section gives a provincial court judge absolute jurisdiction to try an accused charged with the listed offences even where the crown proceeds by indictment. These offences tend to be relatively minor and include theft under $5000 and false pretences. May 2003

17 Saskatchewan: Bar Admission Program 13 G. PLEA DISCUSSIONS This term is not set out in the Code but involves discussions between crown and defence, usually with a view to resolving charges or outstanding issues. These discussions can involve many things and can include agreement as to charges, procedure, sentence, and facts to be represented to the court. The reality is that such discussions occur regularly both at docket and prior to trial. It benefits the system since it often leads to resolution short of trial. It benefits the accused because there is the advantage of a certain result rather than leaving it to a decision of the court. Some practical pieces of advice when negotiating with defence follow: (a) (b) (c) (d) (e) (f) A prosecutor should be thoroughly familiar with the file. Don t agree to a particular resolution without knowing if the resolution is correct. If you indicate to defence that you will do a certain thing (e.g., withdraw one charge for a guilty plea on another charge), follow through with your commitment. You do not want to get a reputation as someone who promises something but then fails to deliver. Although most often such resolutions are done on a handshake basis, you may wish to commit your position to writing in the form of a without prejudice letter and invite a written response by defence. If another prosecutor in your office reaches an agreement with defence, but it is your file in docket that day, consult with the other crown to confirm the arrangement but then go forward with that arrangement. The crown should speak with one voice. If you feel uncomfortable about the resolution, have the crown who engaged in the plea discussions handle the matter when it is next back in court. Keep good notes. Given our busy practices, you will only remember the details of the plea negotiation by ensuring your notes are accurate and complete. While you may want to discuss a possible resolution with the appropriate police agency, the ultimate decision whether to enter a plea arrangement is made by the crown. It is, however, both civil and courteous to review your thought process with the police. At the end of the day you may agree to disagree but at least you have done them the courtesy of being heard. May 2003

18 14 Saskatchewan: Bar Admission Program Charge discussions may involve reducing a charge to a lesser or included offence as long as the charge is adequate and appropriate; withdrawing or staying other charges; agreeing to reduce multiple charges to one all-inclusive charge and agreeing not to proceed on a charge against others (e.g., individual corporate officers). A prosecutor should not proceed with unjustified charges to secure a negotiated plea nor agree to a guilty plea to a charge not disclosed by the evidence. Prosecutors must not permit excessive counts in an Information merely to influence an accused person to plead guilty. Procedural charges may include (a) (b) agreeing to proceed summarily instead of by indictment, and agreeing to the waiver of charges to or from a particular province or to or from another jurisdiction within the province. Judge shopping is not acceptable. Sentence discussions may involve: (a) (b) (c) (d) the crown recommending a specific sentence or a range of sentence; a joint recommendation for sentence; an agreement not to oppose a sentence recommendation made by defence; and an agreement not to ask for or to include certain recommended optional conditions of probation. The crown may often negotiate with defence about the facts to be related to the court. Prosecutors should not agree to sanitize or play down certain facts in exchange for a guilty plea. H. SPEAKING TO SENTENCE There can be a guilty plea to the charge as framed, to a lesser and included offence, or to a new charge contained on a new Information. Section 606(4) of the Criminal Code is a useful section allowing a guilty plea to an included offence or " any other offence arising out of the same transaction". May 2003

19 Saskatchewan: Bar Admission Program 15 The crown must prove any disputed facts beyond reasonable doubt. Where there is a dispute as to the facts, the correct procedure is for the court to proceed to a sentencing hearing. See section 724 of the Code and R. v. Gardiner (1982), 68 C.C.C. (2 nd 477 (SCC). I feel the crown should take a position on sentencing. The crown may not wish to provide a specific sentence (i.e., You should give him 42 days in jail, Your Honour!), but I think the court should be advised if the crown feels jail, a fine, or probation is appropriate. Very often, I will give the court sentencing precedents. Ideally, the best precedent is one that is on all fours with the instant case that was decided yesterday in the Supreme Court but such precedents are usually unavailable. I try to give the court cases that are equivalent to the facts of the instant case. The crown should not "hide" unfavourable cases from the court but should provide them to the judge and attempt to distinguish them. The crown should know what sentence any co-accused received and his or her record. When speaking to sentence, I will indicate both aggravating and mitigating circumstances. It is the function of defence counsel to raise mitigating circumstances but I feel it is fair to the accused if certain mitigating factors are conceded by the crown. Mitigating circumstances have a tendency to reduce the sentence imposed by the court and include a guilty plea, an expression of remorse, reparations made to the victim, empathy for the victim, a lack of criminal record or a lack of extensive criminal record, the fact that the offence is isolated and singular, and favourable personal circumstances (i.e., good reputation, good work history, etc.). Aggravating circumstances often justify an increased sentence and include prior criminal record (especially similar type convictions), lack of remorse, lack of empathy for the victim, that the offenses were many and committed over a long period of time, and breach of trust. Lastly, new provisions in the Criminal Code require that the accused person, having been convicted of certain offences, can be ordered by the court to provide a sample of DNA to the police. Crowns should be familiar with these provisions and know which offences are designated Revised June 2005

20 16 Saskatchewan: Bar Admission Program offences. In the appropriate case, prosecutors should request the provision of the sample. See, generally, section of the Criminal Code and the always useful Offence Grid in the back of Martins Annotated Code. The crown should also be familiar with the weapons prohibition sections in the Code (sections 109 and 110) and request a prohibition in appropriate cases. In addition, pursuant to section , an accused may be required to register pursuant to the Sex Offender Information Registration Act; the crown should be familiar with these provisions. I. STAY OF PROCEEDINGS AND WITHDRAWAL OF CHARGES Section 579 of the Code allows a prosecutor to direct a stay of proceedings on a criminal charge. The effect of the stay is to stop the prosecution; however, section 579(2) allows the crown to revive a stay and proceed on the same Information within one year of the date of the stay. A revival of the stay is quite rare and will likely only be used in exceptional circumstances. One situation might be if witnesses are unavailable at trial but then are found within one year and the crown determines to proceed. A stay can be directed at any time before verdict and the crown has an absolute right to direct a stay; the court has no say in this procedure. See Re Davies and R., [1975] 5 W.W.R. 669 (BCSC). See a sample stay of proceedings as Appendix A and a notice of recommencement as Appendix B. The crown can also withdraw charges. The crown can withdraw a charge prior to plea without leave of the court. After plea, leave to withdraw the charge must be given. See, for example, the case of R. v. Blasko (1975), 29 C.C.C. (2d) 321 (Ont. H.C.J.). From a practical point of view, there is little difference between a stay and withdrawal. However, defence counsel may request a charge be withdrawn since the crown has no ability to revive a withdrawn charge. Revised June 2005

21 Saskatchewan: Bar Admission Program 17 J. ADJOURNMENT There may be times when an adjournment is required by either the defence or crown. Ultimately, the court has the discretion to grant an adjournment. This decision must be exercised judicially and is subject to appeal. There are many reasons why an adjournment may be requested: an unrepresented accused may request an adjournment to seek counsel, or an adjournment might be necessitated by the unavailability of counsel or a witness. An adjournment may be requested by defence counsel if some part of the crown case at trial catches him or her by surprise. See, generally, sections 571, 645 and 650 of the Criminal Code. If the court feels an accused has been misled or prejudiced by an omission or error in the indictment or information, the court may grant an adjournment. See sections 601, 546 or 547 of the Code. A criminal matter cannot be adjourned sine die; rather it must be adjourned to a date certain. See R. v. Stedelbauer Chevrolet Oldsmobile (1974), 19 C.C.C. (2d) 359 (Alta CA). If an adjournment is going to be requested, counsel should advise the other party in advance. Since court time is precious, the judge will appreciate an adjournment being spoken to in advance of the trial date so the court time can be given to some other trial. Also, if the adjournment is granted, witnesses can be cancelled. If defence is requesting the adjournment, the prosecutor should ensure the Information is endorsed so the court record reflects that it is his or her request. Also, defence should be asked to waive any Charter delay. It is my experience that most adjournment requests are not contested. Simply stated, it makes little sense to object to a reasonable request. A prosecutor seems churlish in objecting to a valid defence request when a witness is unavailable or if the defence lawyer has to appear in some other court. In addition, there will be many times when I will need an adjournment and if I am agreeable to defence requests, it helps when I am asking for an adjournment. However, there may be appropriate reasons to oppose an adjournment request (e.g., if your witness is only available on the assigned trial date or if the matter has been previously set three or four times) and if the prosecutor feels he or she cannot legitimately agree to the request, then the parties should make an early appearance before the trial judge and ask for a ruling.

22 18 Saskatchewan: Bar Admission Program III. PREPARING AND PRESENTING A BAIL HEARING FILE I appreciate the issue of release is covered by other presenters but what follows is written from the perspective of a prosecutor. When an accused person is arrested and held for court, the crown has to decide whether to consent to or oppose his or her release pending trial. In larger centres, prisoners are dealt with in a courtroom dedicated to custody cases. In Moose Jaw, prisoners are handled as part of the general docket. Counsel should determine the procedure used in their centre. The general rule is the accused should be released unless there is some reason for the crown to oppose release. See Section 515 (1) of the Code. The prosecutor should ask: (a) (b) (c) If released, will this accused show up for court? Will he or she intimidate crown witnesses? Will he or she commit more offenses? Most often, appropriate mechanisms can be put in place to ensure the accused person's later attendance and to protect the public. Release can be achieved through cash bail or sureties but most typically it involves the accused agreeing to maintain certain conditions on bail. The release documents include a recognizance or undertaking. Typical conditions require the accused to do the following: (a) (b) (c) (d) report to the police or bail officer; have no contact with a co-accused or complainant; abstain from the consumption of alcohol; or maintain a daily curfew. An accused person who breaches any condition while on a release document can be charged with an offence under section 145 of the Code.

23 Saskatchewan: Bar Admission Program 19 If the crown decides to oppose release, a bail hearing will be held. The forum of the hearing depends upon the nature of the offence alleged. Where an accused is charged with an offence listed in section 469 of the Criminal Code, (e.g., murder), the bail hearing is held before a judge of the Court of Queen's Bench. However, most typically, the hearing will take place in provincial court. A key section is section 515 (10) of the Criminal Code. There are three grounds which will be considered by the court in a bail hearing: (a) (b) (c) Is detention necessary to ensure the attendance of the accused in court? Is there a substantial likelihood that the accused will commit further offenses or interfere with the administration of justice? Is detention necessary to maintain public confidence in the administration of justice? While evidence can be called in a bail hearing, most often counsel will simply make representations to the court. Where evidence is called, the court can consider hearsay evidence as long as it is credible and subject to cross examination. See R. v. Powers, 9 C.C.C. (2 nd ) 533 (Ont. HCJ). In considering the argument on the first and second grounds, the criminal record is important. A judge before whom I once appeared regularly used to say that the best indicator of future conduct is past performance. Thus, where an accused person has five prior fail to appear convictions, the decision to oppose release on the first ground is sound. The entire criminal record is relevant as well to the second ground. Where an accused has many offenses, particularly of the same type as the one alleged, and no significant gap in their record, a sound argument can be made against release. The third ground is less clear; it involves a thorough review of the file: How strong is the case? Is there potential for a lengthy term of imprisonment? Is detention necessary to maintain public confidence in the administration of justice? Are there other circumstances justifying the decision to oppose release?

24 20 Saskatchewan: Bar Admission Program Normally, the onus is on the crown to justify the continuing detention of the accused. However, there are certain cases where the onus is on the accused to justify his or her release. See section 585(6) of the Criminal Code. Most typically, this situation develops where the accused has previously been released and then commits a further offence or breaches his or her release document. The following scenario is all too typical: an accused is charged with assault and released on a condition that he not contact the complainant; if he does contact the complainant, he can be charged with breaching his release document, and if arrested, it is now up to him to justify why the court should release him. IV. PREPARING AND PRESENTING A TRIAL FILE A. FILE PREPARATION There are two basic questions I ask as I review any trial file: What do I have to prove? How do I prove it? (Admittedly, I occasionally ask: what the heck did I do in a previous life to deserve this file but that's for another seminar.) As to the first question, I will sit down well before trial and determine the elements of the offence alleged. What things must the crown prove? Some offenses have many constituent elements (e.g., exceed.08) while other charges have few constituent elements. For example, to prove an assault the crown must prove that on the date and location set out in the Information, the accused intentionally applied force to the complainant without consent. That's it! I list the elements on a separate piece of paper and have that paper in front of me throughout the trial. This prevents a careless slip where I might forget to prove identity or jurisdiction, etc. A valuable resource is Canadian Criminal Code Offenses by John L. Gibson, Carswell Company Limited. In this loose-leaf book, the author lists the elements of various offenses from abduction to use of a firearm in the commission of the offence. Standard texts such as Crankshaw s Criminal Code of Canada and any annotated Criminal Code are useful references. I also encourage counsel to prepare his or her own precedent files for different Code offenses and checklists for offences. Often, these checklists are useful security blankets if nothing else! Revised June 2005

25 Saskatchewan: Bar Admission Program 21

26 22 Saskatchewan: Bar Admission Program The second question also involves thought and research. How do we prove the elements? The crown will prove its case by calling witnesses. But what witnesses? Do we need to tender documents? If so, have we given notice? In some cases, the crown will call few witnesses while in other cases there may be many witnesses and many exhibits. Where there are problems or gaps in the crown case, the prosecutor should instruct the police to do additional investigation. If the file is complex, I will divide the file into various subfiles. Each crown will follow his or her own system, but I use the following: (a) Court Documents (e.g., Information, subpoenas, release documents); (b) Correspondence; (c) Police Reports; (d) Witness Statements; (e) Expert Reports (e.g., medical reports, DNA reports, etc); (f) Photographs or videotapes; and (g) Legal issues (e.g., sentencing cases, legal research). Procedure at both a preliminary hearing and trial is similar. The crown calls its case first and defence can cross examine those witnesses. At the conclusion of the crown s case, defence may choose to call evidence (although he or she is not obliged to) and the prosecutor can cross examine those witnesses. The crown may be allowed to call rebuttal evidence which is subject to cross examination. The parties then argue their positions before the judge who makes his or her decision. At trial, the burden of proof is proof beyond a reasonable doubt and remains with the crown throughout. B. PRELIMINARY HEARING When the crown elects to proceed by way of indictment on a charge, unless the charge is one covered by section 553 of the Code (absolute jurisdiction), the accused person has a right to elect his or her level of trial court. Where an accused elects to be tried by a Queen s Bench judge alone or judge and jury, he or she is entitled to a preliminary hearing. I should note I tend to use the terms preliminary hearing and preliminary inquiry interchangeably. Part XVIII of the Code deals with preliminary inquiries. Particular reference should be made to section 535, section 537 (powers of the justice), and section 548 (order to stand trial or discharge) Revised June 2005

27 Saskatchewan: Bar Admission Program 23 of the Code. Also, under section 549, the justice may order the accused to stand trial by consent. Revised June 2005

28 24 Saskatchewan: Bar Admission Program Section of the Code requires the party requesting a preliminary inquiry file a statement identifying the issues in dispute and witnesses to be called. This statement is to be filed in advance of the hearing. The preliminary inquiry is conducted before a judge of the Provincial Court. The same rules of evidence apply as at trial. This procedure has been equated by some authors to the grand jury process in American jurisdictions. Essentially, it is a proceeding prior to any trial, the purpose of which is to hear from witnesses under oath and allow a judge to make a decision as to whether the case against the accused can appropriately proceed to trial. The provincial court judge essentially can discharge the accused (i.e., find there is no case against him or her) or commit him or her to stand trial either for the alleged offence or any other indictable offence in respect of the same transaction founded on the facts. See R. v. McKibbon and R. (1984), 10 C.C.C. (3d) 193 (SCC). The test for committal is set out in United States of America v. Sheppard, [1977] 2 S.C.R wherein the Supreme Court said the justice is required to commit an accused person for trial in any case in which there is admissible evidence which could, if believed, result in a conviction. In R. v. Monteleone (1987), 35 C.C.C. (3d) 193 (SCC), the court said the test for committal after preliminary inquiry was any admissible evidence whether direct or circumstantial which if believed by a properly charged jury acting reasonably would justify a conviction. As can be seen, the test for committal is relatively low. If the crown has some admissible evidence on all of the essential elements of the offence, the accused will be committed to stand trial. The preliminary judge does not weigh credibility of witnesses. Similarly, the accused cannot advance Charter arguments at this stage as the judge sitting on a preliminary hearing is not a court of competent jurisdiction. See R. v. Mills, [1986] 1 S.C.R. 863.

29 Saskatchewan: Bar Admission Program 25 The accused can call evidence at the preliminary hearing or testify himself or herself, but this is rarely done. Because the test for committal is so low, there is really no reason for defence to call evidence, running the risk of defence witnesses being cross-examined or tipping the crown as to later defences at trial. As for the test used to consider defence evidence at this stage, see the case of R. v. Arcuri (2001), 157 C.C.C. (3d) 21 (SCC). After the preliminary inquiry, a transcript is made of all of the evidence heard in court. In addition, the crown prepares an Indictment. This is the formal written charge against the accused upon which he or she will be arraigned and tried at Queen s Bench. I provide a copy of a sample Indictment as Appendix C. A prosecutor can include a witness on the Indictment (and thus call him or her as a witness at the later trial) even though the witness did not testify at the preliminary inquiry. However, the crown must provide defence with his or her written statement or some indication of what the witness will say. A practical issue for the prosecutor is whether to run a full preliminary inquiry or a skinny preliminary hearing. In other words, should you call all the witnesses you intend to call at any later trial or just enough to get a committal? My preference is to call all the witnesses I intend to call at any later trial. In this way, I get to assess their strengths and weaknesses. Often, a witness who provides a wonderful written statement turns out to be awful on the stand. A full preliminary also gives the accused person a fair and proper look at the strength of the case against him or her. The crown should call the witnesses identified in the section statement. Recently, the federal Department of Justice has suggested that preliminary hearings could be done away with. Personally, I would hate to see the preliminary inquiry eliminated. There are many uses for the preliminary inquiry including the preservation of evidence (Code provisions permit evidence given at the preliminary inquiry to be read in at trial if the witness is dead or out of the country); discovery of the crown s case by the defence; and discovery of the defence case by the Revised June 2005

30 26 Saskatchewan: Bar Admission Program crown (careful attention to defence counsel s cross examination may provide clues to the accused s later defence). Crown can discover weaknesses in its own case; the defence can later use the transcript to cross examine witnesses at trial; and the crown can give the preliminary transcript to witnesses to help them refresh their memories and prepare for trial. The hearing is useful as trial preparation for both counsel. Prior to calling evidence at the preliminary hearing, counsel can ask for a ban on publication of any evidence led at the hearing. See section 539 of the Criminal Code. This should always be requested since future jurors need not be tainted by media reports about evidence led at the hearing. C. WITNESS PREPARATION I encourage counsel to interview witnesses prior to court. Many witnesses have never testified before and are naturally nervous. I try to remember that police officers should be interviewed as well; a crown should not assume that an officer will testify without nervousness. In ideal circumstances, witnesses should be interviewed in a private area but this may not be possible in a crowded town hall which doubles as a court facility. However, do try to establish some privacy as best as you can. Certainly, witnesses should always be interviewed individually so there is no suggestion of collision. When interviewing a co-accused who is represented by counsel, crown should alert counsel for the co-accused in advance so that lawyer can determine whether he or she wishes to advise his or her client or sit in on the interview. The crown may also wish to have a police officer or some other person sit in on any discussion prior to court where it is anticipated that the witness may later misrepresent what the crown said. In my experience, such a need is rare but there are witnesses who are difficult, potentially violent or motivated to misrepresent what a prosecutor may say. I go through a similar discussion with each witness: (a) (b) I briefly discuss the function of the judge, defence counsel and crown. I remind him or her of the burden of proof on the crown (i.e., proof beyond a reasonable doubt). This is particularly important for complainants since they may equate an acquittal with the judge saying they are lying.