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CRIMINAL PROCEDURE
GLOSSARY
Note: s.2 CC (Interpretation) contains definitions of all terms used in the CC.
Absolute jurisdiction offence: an offence listed in s.553. These offences can only be tried by a provincial court judge, and so the accused has no election.
Ancillary powers doctrine: the process through which new police powers can be created at common law. The test for the creation of ancillary powers is drawn from the British case R v Waterfield, which is applied in Canada today in a way quite distinct from the approach in its country of origin.
Arrest: an arrest consists of words of arrest accompanied either by the touching of the person with a view to detention or by the person submitting to the arrest. The word “arrest” need not actually be used, provided the accused can be reasonably supposed to have understood that she was under arrest. Arrest powers are given in the Criminal Code to everyone, including private citizens, and additional arrest powers are given to property owners and peace officers.
Attorney General: AG has jurisdiction over all or most matters of criminal law, including law-making and prosecutions. The AG is given various discretionary powers in the CC, some of which must be exercised personally and some of which can be exercised on his behalf by a Crown prosecutor.
Bail (judicial interim release): the process by which a justice can release a person who has been accused of an offence until the trial is held. Bail can be granted either unconditionally or on various conditions.
Challenge for cause: the process by which the Crown or the accused can challenge a potential juror in order to suggest that the person should not serve on the jury. The most common basis is that the juror is not indifferent between the Queen and the accused, which amounts to a claim that the juror will not act impartially.
Change of venue: moving the location of a trial from one territorial jurisdiction to another.
Charge document: the document setting out the charges based upon which an accused will stand trial.
Count: an individual charge within a single information or indictment.
Crown prosecutor: a lawyer responsible for the carriage of public prosecutions on behalf of the Crown. Most public prosecutions are conducted by provincially appointed Crown prosecutors, but federal Crown prosecutors also conduct some prosecutions, particularly with regard to narcotic offences.
Criminal offence: a violation of any non-regulatory offence, whether summary conviction or indictable, which is found in the CC or in other federal legislation, and which is constitutionally justified under s.91(27) of the Constitution Act, 1867.
Crown election: Hybrid offences can be tried either by indictment or on summary conviction. The Crown elects which mode of trial will be used.
Curative proviso: a portion of the rules governing appeals that permits an appeal to be dismissed despite the presence of a legal error at trial, if it is found that the error is harmless and does not cause a miscarriage of justice.
Cartilage: the area surrounding and associated with a dwelling house.
Detention: a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel, but might be prevented or impeded from retaining and instructing counsel without delay. The restraint of liberty might arise because of physical constraint, or because a police officer or other agent of the state assumes control over the movement of a person by a demand or direction.
Direct indictment (“preferred indictment”): a Crown prosecutor has the ability, under s.577 CC, to prefer a “direct indictment”, which has the effect of requiring an accused to be placed on trial for the indictable offence charged therein, either without a preliminary inquiry having been held or completed, or despite a discharge at the preliminary inquiry. This power can be used with personal consent in writing of the AG or Deputy AG.
Disclosure: the right of a person charged with an offence to be informed of all relevant evidence, whether incriminatory or exculpatory, in the hands of the Crown.
DNA warrant: a warrant issued under s.487.05 CC authorizing the taking of bodily samples from a person for the purpose of DNA analysis.
Election (as to mode of trial): an accused who is charged with an indictable offence is in most cases offered a choice as to mode of trial: superior court judge with a jury, superior court judge alone, or provincial court judge.
Exclusive jurisdiction offence: an offence listed in s.469 CC. These offences (barring prosecutorial consent) can only be tried through a jury trial in a superior court of criminal jurisdiction, and so the accused has no election.
General warrant: a warrant issued under s.487.01 CC that authorizes the bearer to use any device, investigative technique, procedure, or anything described in the warrant that would constitute an unreasonable search and seizure if it were not authorized by warrant.
Hybrid offence: an offence that may be prosecuted either on indictable or as a summary conviction offence.
Implementational duties: the obligation imposed on the police to act toward a person who has been arrested or detained and has asserted the right to counsel in particular ways, including facilitating that person’s contact with counsel, and holding off from attempting to elicit incriminating information until the person has had a reasonable opportunity to do so.
Indictable offence: the more serious category of offences, which have no minimum penalty but can carry sentences as severe as life imprisonment without possibility of parole for twenty-five years. Indictable offences are tried on an indictment and might have a preliminary inquiry. In most cases, an accused has an election as to mode of trial, though this is not the case for absolute jurisdiction offences or exclusive jurisdiction offences.
Indictment: a document prepared once an accused has been committed for trial after a preliminary inquiry, though it can also be laid without a preliminary inquiry having been conducted. This document specifies the particular offence or offences with which the accused is charged, and is the document based upon which the trial for an indictable offence will occur. An indictment can contain any number of “counts”.
Form 4 – Heading of Indictment (p. 1703)
Her Majesty the Queen –
Against – (name of accused)
Information: a document sworn in front of a justice of the peace, alleging that a person has committed an offence. An information is required for the issuance of some process, such as an arrest warrant, and is the document based upon which the trial for a summary conviction offence will occur.
Informational duties: the obligation imposed on police to inform a person who is arrested or detained of particular pieces of information, such as the right to counsel, the existence of legal aid, and the telephone numbers for duty counsel.
Investigative detention: the common law police power to briefly detain an individual, where on an objective view of the totality of the circumstances there is a clear nexus between the individual to be detained and a recent or on-going criminal offence, and the decision to detain is reasonable based on all the circumstances, including the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extend of that interference.
Jury: the triers of fact. Normally consist of twelve individuals selected after a process involving challenge for cause and peremptory challenges.
Jury array: a large number of potential jurors summoned to court from whom the actual jurors for a particular trial will be chosen.
Justice: as used in the CC, a justice of the peace or a provincial court judge.
Peremptory challenge: the right of the accused or the Crown to object to a member of the jury array being chosen to serve on the jury, without being required to offer any explanation for the objection. The Crown and the accused each have a limited number of peremptory challenges, which varies with the offence charged (s.634 CC).
Preliminary inquiry: a hearing conducted in accordance with Part XVIII CC, before an accused is placed on trial for an indictable offence. An accused either can be committed for trial or discharged at the end of the preliminary inquiry. Originally a preliminary inquiry was presumptively require in the case of all indictable offences, although it could be waived, but in its current form the preliminary inquiry is held on request and might be restricted to particular issues.
Production: the right of a person accused of a criminal offence to be provided, in some cases, with information that is in the hands of third parties but not in the hands of the Crown.
Promise to appear: a written promise in accordance with Form 10 CC to attend court at a particular place and time. A potential basis upon which bail can be granted (p.1722 CC).
Prosecutor: In public prosecutions, the prosecutor will be the AG.
Psychological detention: the term used to describe a situation when a person is not in fact required by law to comply with the demands of a peace officer, but is unaware of that fact and reasonably believes that she has no choice but to comply.
Quash: to set aside a decision (such as discharging an accused at a preliminary inquiry or issuing a search warrant) so that it no longer has effect.
Reasonable expectation of privacy: the amount of privacy which a person is entitled to expect in a free and democratic society. Privacy consists of at least personal, territorial, and informational privacy.
Recognizance: a written acknowledgement in accordance with Form 11 CC of responsibility for a debt not to exceed $500, to be forfeited upon failure to appear in court. A potential basis upon which bail can be granted (p.1723 CC).
Search warrant: a warrant issued under s.487 CC authorizing the bearer to search a building receptacle or place and seize evidence or other specified items.
Severance: a judicial decision not to try more than one accused, or more than one count, on the same information.
Stay of proceedings: an order preventing, either temporarily or permanently, any further action on a prosecution. Crown prosecutors have a power under the CC to temporarily stay proceedings for a period not exceeding one year, and judges can permanently stay proceedings as a remdy for a Charter breach.
Summary conviction offence: a generally less serious category of offences that carry less severe penalties (in most cases a maximum of six months imprisonment), and that cannot be prosecuted more than six months after the date of the offence. Summary conviction offences are tried on an information and the trial necessarily takes place in front of a provincial court judge.
Summons: a written notice issued by a judge or justice in accordance with Form 6 CC, requiring the person to whom it is given to appear in court at the stated place and time (p.1717 CC).
Surety: a third party who agrees to forfeit a sum of money if the person for whom she stands surety fails to appear in court in accordance with the terms of recognizance.
Telewarrant: a procedure authorized under s. 487.1 CC allowing certain types of warrants to be obtained by means of telecommunication where it is impracticable for the peace officer to appear personally to make application.
Undertaking: a written promise given by an accused person to a peace officer (Form 11.1) or a judge or justice (Form 12) to appear in court at a stated place and time to comply with other directions (pp.1724 and 1725 CC).
Warrant: a judicial authorization given to peace officers empowering them to perform particular actions, such as to search a location or arrest a person.
Types of Offences
Summary Conviction
GLOSSARY
Note: s.2 CC (Interpretation) contains definitions of all terms used in the CC.
Absolute jurisdiction offence: an offence listed in s.553. These offences can only be tried by a provincial court judge, and so the accused has no election.
Ancillary powers doctrine: the process through which new police powers can be created at common law. The test for the creation of ancillary powers is drawn from the British case R v Waterfield, which is applied in Canada today in a way quite distinct from the approach in its country of origin.
Arrest: an arrest consists of words of arrest accompanied either by the touching of the person with a view to detention or by the person submitting to the arrest. The word “arrest” need not actually be used, provided the accused can be reasonably supposed to have understood that she was under arrest. Arrest powers are given in the Criminal Code to everyone, including private citizens, and additional arrest powers are given to property owners and peace officers.
Attorney General: AG has jurisdiction over all or most matters of criminal law, including law-making and prosecutions. The AG is given various discretionary powers in the CC, some of which must be exercised personally and some of which can be exercised on his behalf by a Crown prosecutor.
Bail (judicial interim release): the process by which a justice can release a person who has been accused of an offence until the trial is held. Bail can be granted either unconditionally or on various conditions.
Challenge for cause: the process by which the Crown or the accused can challenge a potential juror in order to suggest that the person should not serve on the jury. The most common basis is that the juror is not indifferent between the Queen and the accused, which amounts to a claim that the juror will not act impartially.
Change of venue: moving the location of a trial from one territorial jurisdiction to another.
Charge document: the document setting out the charges based upon which an accused will stand trial.
Count: an individual charge within a single information or indictment.
Crown prosecutor: a lawyer responsible for the carriage of public prosecutions on behalf of the Crown. Most public prosecutions are conducted by provincially appointed Crown prosecutors, but federal Crown prosecutors also conduct some prosecutions, particularly with regard to narcotic offences.
Criminal offence: a violation of any non-regulatory offence, whether summary conviction or indictable, which is found in the CC or in other federal legislation, and which is constitutionally justified under s.91(27) of the Constitution Act, 1867.
Crown election: Hybrid offences can be tried either by indictment or on summary conviction. The Crown elects which mode of trial will be used.
Curative proviso: a portion of the rules governing appeals that permits an appeal to be dismissed despite the presence of a legal error at trial, if it is found that the error is harmless and does not cause a miscarriage of justice.
Cartilage: the area surrounding and associated with a dwelling house.
Detention: a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel, but might be prevented or impeded from retaining and instructing counsel without delay. The restraint of liberty might arise because of physical constraint, or because a police officer or other agent of the state assumes control over the movement of a person by a demand or direction.
Direct indictment (“preferred indictment”): a Crown prosecutor has the ability, under s.577 CC, to prefer a “direct indictment”, which has the effect of requiring an accused to be placed on trial for the indictable offence charged therein, either without a preliminary inquiry having been held or completed, or despite a discharge at the preliminary inquiry. This power can be used with personal consent in writing of the AG or Deputy AG.
Disclosure: the right of a person charged with an offence to be informed of all relevant evidence, whether incriminatory or exculpatory, in the hands of the Crown.
DNA warrant: a warrant issued under s.487.05 CC authorizing the taking of bodily samples from a person for the purpose of DNA analysis.
Election (as to mode of trial): an accused who is charged with an indictable offence is in most cases offered a choice as to mode of trial: superior court judge with a jury, superior court judge alone, or provincial court judge.
Exclusive jurisdiction offence: an offence listed in s.469 CC. These offences (barring prosecutorial consent) can only be tried through a jury trial in a superior court of criminal jurisdiction, and so the accused has no election.
General warrant: a warrant issued under s.487.01 CC that authorizes the bearer to use any device, investigative technique, procedure, or anything described in the warrant that would constitute an unreasonable search and seizure if it were not authorized by warrant.
Hybrid offence: an offence that may be prosecuted either on indictable or as a summary conviction offence.
Implementational duties: the obligation imposed on the police to act toward a person who has been arrested or detained and has asserted the right to counsel in particular ways, including facilitating that person’s contact with counsel, and holding off from attempting to elicit incriminating information until the person has had a reasonable opportunity to do so.
Indictable offence: the more serious category of offences, which have no minimum penalty but can carry sentences as severe as life imprisonment without possibility of parole for twenty-five years. Indictable offences are tried on an indictment and might have a preliminary inquiry. In most cases, an accused has an election as to mode of trial, though this is not the case for absolute jurisdiction offences or exclusive jurisdiction offences.
Indictment: a document prepared once an accused has been committed for trial after a preliminary inquiry, though it can also be laid without a preliminary inquiry having been conducted. This document specifies the particular offence or offences with which the accused is charged, and is the document based upon which the trial for an indictable offence will occur. An indictment can contain any number of “counts”.
Form 4 – Heading of Indictment (p. 1703)
Her Majesty the Queen –
Against – (name of accused)
- That he (state offence)
- That he (state offence)
Information: a document sworn in front of a justice of the peace, alleging that a person has committed an offence. An information is required for the issuance of some process, such as an arrest warrant, and is the document based upon which the trial for a summary conviction offence will occur.
Informational duties: the obligation imposed on police to inform a person who is arrested or detained of particular pieces of information, such as the right to counsel, the existence of legal aid, and the telephone numbers for duty counsel.
Investigative detention: the common law police power to briefly detain an individual, where on an objective view of the totality of the circumstances there is a clear nexus between the individual to be detained and a recent or on-going criminal offence, and the decision to detain is reasonable based on all the circumstances, including the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extend of that interference.
- i.e. police officer questioning one near a burglary who fits the description.
Jury: the triers of fact. Normally consist of twelve individuals selected after a process involving challenge for cause and peremptory challenges.
Jury array: a large number of potential jurors summoned to court from whom the actual jurors for a particular trial will be chosen.
Justice: as used in the CC, a justice of the peace or a provincial court judge.
Peremptory challenge: the right of the accused or the Crown to object to a member of the jury array being chosen to serve on the jury, without being required to offer any explanation for the objection. The Crown and the accused each have a limited number of peremptory challenges, which varies with the offence charged (s.634 CC).
- Peremptory – leaving no opportunity for denial or refusal, imperative, dictatorial: a peremptory command.
Preliminary inquiry: a hearing conducted in accordance with Part XVIII CC, before an accused is placed on trial for an indictable offence. An accused either can be committed for trial or discharged at the end of the preliminary inquiry. Originally a preliminary inquiry was presumptively require in the case of all indictable offences, although it could be waived, but in its current form the preliminary inquiry is held on request and might be restricted to particular issues.
Production: the right of a person accused of a criminal offence to be provided, in some cases, with information that is in the hands of third parties but not in the hands of the Crown.
Promise to appear: a written promise in accordance with Form 10 CC to attend court at a particular place and time. A potential basis upon which bail can be granted (p.1722 CC).
Prosecutor: In public prosecutions, the prosecutor will be the AG.
Psychological detention: the term used to describe a situation when a person is not in fact required by law to comply with the demands of a peace officer, but is unaware of that fact and reasonably believes that she has no choice but to comply.
Quash: to set aside a decision (such as discharging an accused at a preliminary inquiry or issuing a search warrant) so that it no longer has effect.
Reasonable expectation of privacy: the amount of privacy which a person is entitled to expect in a free and democratic society. Privacy consists of at least personal, territorial, and informational privacy.
Recognizance: a written acknowledgement in accordance with Form 11 CC of responsibility for a debt not to exceed $500, to be forfeited upon failure to appear in court. A potential basis upon which bail can be granted (p.1723 CC).
- Similar to a ‘promise to appear’, however, a sum of money will be forfeited here upon failure to appear in court.
Search warrant: a warrant issued under s.487 CC authorizing the bearer to search a building receptacle or place and seize evidence or other specified items.
Severance: a judicial decision not to try more than one accused, or more than one count, on the same information.
Stay of proceedings: an order preventing, either temporarily or permanently, any further action on a prosecution. Crown prosecutors have a power under the CC to temporarily stay proceedings for a period not exceeding one year, and judges can permanently stay proceedings as a remdy for a Charter breach.
Summary conviction offence: a generally less serious category of offences that carry less severe penalties (in most cases a maximum of six months imprisonment), and that cannot be prosecuted more than six months after the date of the offence. Summary conviction offences are tried on an information and the trial necessarily takes place in front of a provincial court judge.
Summons: a written notice issued by a judge or justice in accordance with Form 6 CC, requiring the person to whom it is given to appear in court at the stated place and time (p.1717 CC).
Surety: a third party who agrees to forfeit a sum of money if the person for whom she stands surety fails to appear in court in accordance with the terms of recognizance.
Telewarrant: a procedure authorized under s. 487.1 CC allowing certain types of warrants to be obtained by means of telecommunication where it is impracticable for the peace officer to appear personally to make application.
Undertaking: a written promise given by an accused person to a peace officer (Form 11.1) or a judge or justice (Form 12) to appear in court at a stated place and time to comply with other directions (pp.1724 and 1725 CC).
Warrant: a judicial authorization given to peace officers empowering them to perform particular actions, such as to search a location or arrest a person.
Types of Offences
Summary Conviction
- Less serious, lighter penalties, less complex procedures, less than 2 years
- Probably no jury
- More serious, higher penalties, more complex procedures, more than 2 year
- Preliminary inquiry, and trial by jury
- Choice by Crown whether to proceed under indictment or summary conviction