Chapter 8

Question 1

3 categories of indictable offences

Answer 1

Offences under the absolute jurisdiction of provincial courts

Offences under the absolute jurisdiction of superior courts

Electable offences – the right of the accused to choose to be tried by a judge instead of a jury

Question 2

preliminary hearing

Answer 2

a hearing to determine whether there is sufficient evidence to warrant a criminal trial
- usually a short hearing to determine whether there is a prima facie case (sufficient evidence to justify the time and expense of a criminal trial)
- A magistrate or provincial court judge listens to some (or all) of the Crown witnesses
- The judge does not rule on the guilt of the accused at the preliminary hearing but must decide if the Crown has evidence that could be used to prove guilt
- In rare cases, the provincial attorney general can skip the preliminary hearing and go straight to trial, called “preferring the indictment”

Question 3

electable offences

Answer 3

Most indictable offences are electable offences, and the accused person has three modes of trial from which to choose:
-Trial by a provincial or territorial court judge
- Trial by a superior court judge sitting alone
- Trial by a superior court judge and a jury

The Charter of Rights and Freedoms guarantees the right to a jury trial if the alleged offence carries a maximum sentence of more than five years’ imprisonment

Question 4

laying an information

Answer 4

• police are usually responsible for this, and it is a document that outlines the allegation that an individual contravened a criminal law
• A warrant for arrest or a summons to be appear will be issued
• Accused persons are released on their own recognizance, meaning they are responsible for ensuring that they appear in court when required

Question 5

laying a charge

Answer 5

• the police and Crown exercise great discretion to lay a charge
• Charges are not laid in many cases (1/3 of violent crimes and property crimes do not have charges laid)
• The Crown must approve before the police can lay a charge (BC, NB, QC)

Question 6

conditions of bail

Answer 6

There are statutory and other conditions of bail:
- Statutory conditions require reporting to a bail supervisor
- Other conditions may include no alcohol/drugs, house arrest, and/or no contact orders

Young offenders may have to live with a guarantor, who will guarantee that they appear in court

There has been a trend in increasing the number of bail conditions due to increasing concerns of risk aversion in the CJS
- This has led some observers to argue that persons on bail are being “set up for failure” and are at high risk of being charged for failing to comply
- There are also concerns that marginalized groups are disproportionately impacted by the current manner in which the bail system operates

Question 7

security certificates

Answer 7

security certificates can be issued against non-citizens who are deemed to pose a threat to national security
- Held in detention
- without charge
- for an indefinite period of time

Certificates must be signed by both the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness

Question 8

remand

Answer 8

refers to accused individuals who have been charged and detained in custody
- have been denied bail
- have yet to appear before a judge
- awaiting sentencing
- awaiting commencement of a custodial sentence

remanded into custody through the issuance of a warrant of committal by a JP or judge

Question 9

defenses used by persons charged with a crime

Answer 9

False accusation - Wrong person arrested or fabrication by complainant

Mental state - NCRMD, intoxication, automatism

Justification - Provocation, duress, consent, necessity, self defence, battered woman

Procedural - Validity of law, prosecution, admissibility of evidence, Charter violation