Hearing of Regina v. Andre Murray, 18th August 2012.

Hearing of Regina v. Andre Murray, 18th August 2012.

After the confused hearing of 17th July 2012 Andre Murray ascertained that no Information had been laid against Andre, in the Provincial Court, in respect of the charge of Failure to Appear. Andre's agenda at the hearing on 18th July then became, to confirm that the charge was not being prosecuted because it was not before the Judge and also Andre requested a 'Show-Cause' hearing for the Information requesting a Criminal Code section 810 undertaking to stay away from a complainant against Andre Murray.

Andre asked the judge to confirm what Information had been laid and Madame Justice confirmed Information had been laid for the charge of "Failure to Appear in Court 145 CCC." The question we all wanted an answer to is... if no charge was laid why had Andre been arrested?  It would appear it was just another arbitrary arrest but... what about this obvious negligence? Not the police nor do the Judiciary appear to any regard, in spite of our charter protections to be free of such aggressive acts by public officials.

Having examined the documentation before the court in respect of all charges, Assault, Breach of an Undertaking and Information requesting a Recognizance (the undertaking) it became apparent that justice would be best served by establishing that there is and or is not a necessity (a 'Show-Cause' hearing) for the undertaking heard before any other Legal Action within the Courts could reasonably be heard.
However, if substantive evidence does not exist that an assault actually occurred then in the first place the Undertaking Andre was forced to sign or stay in jail would never have existed in the first place therefore, in the second place there could have been a Breach of undertaking as the Undertaking was forced under duress moreover it was criminal for the Police to Arrest and force Andre to sign in any case .

That sounds simple and honest, right? The problem with that scenario of a fast route to Justice appears to be exactly that this system does not want fast routes to remedy and or Justice; a deceit sincere legal system in New Brunswick (which does not exist) would allowed Andre to prove the following before any arrests or undertaking could have been forced upon Andre:

• the neighbor filed a false complaint and lied to the police, along with his wife and son, 
• the police arrested Mr Murray before concluding the investigation
• the police never made an effort to verify whether Mr Murray was even in the vicinity at the time of the alleged incident or if he had an alibi or witness
• the Crown Prosecutors failed to follow their process as defined in the Attorney General's policies and accepted a case for prosecution in spite of the lack of evidence against the accused
• the judge accepted Information without satisfying the Court if there was any merit to the charges.

What unfolded in the hearing on 18th July 2012 was obvious teamwork and conspiracy between the Judge and the Crown to avoid admitting their negligence, against the defendant (who should not have ever been arrested or charged or be facing prosecution) which they (the Judge and the Crown) conspired to do by preventing Mr Murray from any available options to prove the allegations against Andre made by Neil Rodgers and his wife and son are without merit.

Under section 810 a judge is obligated to "hear" the reason argued against the need for an undertaking but she refused to and has not yet scheduled a Show-Cause hearing for Andre to prove there is no necessity and it is in fact a Charter violation to so restrict his liberty without giving him the chance to prove it is an not only unmerited but infringement of his rights and freedoms.

The judge and Crown counsel, Hilary Drain, both spoke over Mr Murray during the hearing and Justice Richards pretty much told him to shut up and leave to collect his disclosure. She lost her composure because she was wrong and being exposed in a courtroom full of observers that justice was taking a back seat because it is "my court room" - that was her response to being asked if her decisions were based in law or were simply her choice.

Every judge has a legislated and ethical duty to facilitate the most just, timely and cost effective resolution to every case before the Court, which is simply not happening in Fredericton Courts.

Mr Murray scored a lot of points at 18th July, not least because at the beginning of the Hearing Mary Jane Richards told him she "expected" he wanted an adjournment and he was not going to get one!!!  So I was delighted when, at the end of the hearing, she offered him an adjournment because he had not received disclosure from the Crown on two of the charges, so he obviously needed time to prepare. Objections were made and duly noted by an obviously uncomfortable judge.

Just before the judge told Andre, in a loud unpleasant manner "you're finished!" Andre had asked for a hearing to prove the invalidity of the matters and to prevent the waste of public funds on a prosecution with no merit. Justice Richards was not interested in such a hearing and is, obviously, quite used to the complete waste of public funds that our Provincial Courts apparently are.

The plea hearings are set for 9.30am on 15th August 2012. That will be another very interesting hearing indeed.

Sally Brooks

Sally Brooks Regarding Hearing of 17th July 2012

Regarding Hearing of 17th July 2012.

I attended Fredericton City Provincial Court on 17th July to observe Andre Murray's hearing before Justice Mary Jane Richards - supposedly an appearance in response to a "Promise to Appear" in respect of a charge of "Failure to Appear in Court 145 CCC". I know that is what we were supposed to be there for because I saw the actual Promise to Appear signed by Mr Murray and Cst. Paul Estey.

Imagine my surprise when Andre was called before the judge and told there was no such charge and he was there to enter a plea for two entirely different charges that he had been ordered to attend court and enter pleas for the next day. The Judge and Crown Counsel, Hilary Drain, were very hostile and argumentative, stating Mr Murray got it wrong and I was delighted when he held up the document confirming he was before the court for the failure to appear - signed and sealed and witnessed by a cop! 

Andre also asked for a confirmation of whether an Information had been laid in respect of the Promise to Appear since, under the Criminal Code, if no information has been laid by the time of the hearing agreed in the Promise To Appear then the court loses jurisdiction over the defendant and has to dismiss the charge or the Crown must lay an Information and summons the accused.

Somehow, Mary Jane Richards construed that Andre was asking for an adjournment for all the matters to be heard the next day (which is not what was requested, only that the actual issue on the docket be dealt with) and dismissed him suggesting he go and confirm with the administration if an Information had been laid etc. I personally think she was trying to get Andre out of the courtroom because the agenda was to try and pretend the "Failure to Appear" charge never happened because the Court signed an invalid arrest warrant - MJR did not fill it out pursuant to the requirements of the Criminal Code and Mr Murray was in fact only late for court and called to confirm that.

Furthermore, when Andre came to court on the scheduled day when he supposedly missed his hearing he was only late and was advised by the administration to attend the afternoon session, which he was prevented from doing by the unnecesary arrest warrant and subsequent Promise to Appear that Cst Estey made him sign when he prevented Andre from attending before the judge in the afternoon by arresting him.

The trouble is, the judge had evidence that he diligently called the administration and confirmed he got the time and date wrong (hence no crime) and also he signed the Promise to Appear IN the courthouse ON the day of his scheduled appearance. The judge would, therefore, look pretty stupid continuing a prosecution (for the crime of being late!) with that information on the record so ... the court chose to get rid of that embarassing charge.

Hmmmm. So, the court and Crown can just get rid of a charge just like that when it pleases them? It appears so.

When Mr Murray was dismissed I left the courtroom and went with him to the admin office to ask about the mysterious disappearing charge of "Failure to Appear" to hear him be told, again, that the charge he was ordered to appear for that day was not on the docket, the charges that he had been ordered to plea on for the next day had been mysteriously (or negligently?) swapped to this day. How can the court get away with human error but we are arrested if we make one?

So, I personally think the Court wanted to confuse this self-represented party by having him turn up to face charges he was not prepared for and to quietly dispose of a charge that should never have been laid. We left court looking forward to whatever screw-up there might be the next day.

Sally Brooks

Procedural scheme governing the laying of criminal charges and the arrest

Procedural scheme governing the laying of criminal charges and the arrest

II.        OVERVIEW

 

[2]               Part XVI of the Criminal Code sets out a detailed procedural scheme governing the laying of criminal charges and the arrest, detention and release of persons charged with criminal offences.  Among other purposes, Part XVI seeks to minimize, to the extent consistent with the public interest, the pre-trial incarceration of persons charged with criminal offences.  To achieve that goal, several provisions of Part XVI permit a peace officer to release an individual, thereby avoiding the need to hold that person in custody pending appearance before a judicial officer:  see Criminal Code, ss. 496, 498, 499, 503(2).  

[3]               A peace officer who arrests an accused may release that person on a promise to appear.[1]  That document compels the named person to appear in court on a specified date in answer to the charge set out in the promise to appear:  Criminal Code, s. 501.  Failure to appear as required is a criminal offence:  Criminal Code, s. 145(5).[2] 

[4]               If an accused is released on a promise to appear, two steps are necessary to bring the criminal charges before the court.  First, an information alleging the offence(s) must be laid before a justice “as soon as practicable” and “in any event before the time stated in the … promise to appear”:  Criminal Code, s. 505.  Failure to lay the information “as soon as practicable” renders the promise to appear ineffective and provides a defence to a charge of failure to appear as directed by the promise to appear:  R. v. Naylor (1978), 42 C.C.C. (2d) 12 (Ont. C.A.), at p. 19;  R. v. Gougeon reflex, (1980), 55 C.C.C. (2d) 218 (Ont. C.A.), at pp. 230-31, leave to appeal to S.C.C. refused 35 N.R. 83n; R. v. Markovic 2005 CanLII 36251 (ON CA), (2005), 77 O.R. (3d) 752 (C.A.), at paras. 23-25, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 530.

[5]               The second step necessary to move the criminal charges forward also takes place when the information is laid before the justice of the peace.  The justice of the peace must decide whether to confirm or cancel the promise to appear.  If he or she cancels the promise to appear, it is of no force and effect, the accused is not required to appear at the time and place set out in the promise to appear, and failure to appear is not a criminal offence.  A justice of the peace may cancel a promise to appear for various reasons.  For example, the justice of the peace may conclude that the criminal charge(s) should not have been brought against the accused, or that some other process should be used to compel the attendance of the accused:  Criminal Code, s. 508. 

[6]               Although the promise to appear and other similar mechanisms for release by the police introduced into the Criminal Code by the Bail Reform Act, S.C. 1970-72 c. 37, gave the police broad powers of release, those powers were deficient in that they did not permit the police to impose conditions as a term of the release.  Unless the police were satisfied that the arrested person should be released without any conditions, they had to detain that person pending appearance before a justice of the peace.  The justice of the peace could then release that individual on the appropriate bail conditions.  This shortcoming was eventually cured by amendments that gave a peace officer who released the person on a promise to appear, the power to require that person to enter into an undertaking before being released:  Criminal Code, s. 503(2).  That undertaking could contain one or more of the conditions set out in s. 503(2.1) of the Criminal Code and is aptly described as “police bail”:  see Gary T. Trotter, The Law of Bail in Canada, 2nd ed. (Scarborough, ON:  Carswell, 1999), at pp. 94-100.

Reference: R. v. Oliveira, 2009 ONCA 219 (CanLII), <http://canlii.ca/t/22qlw>

Unless caught in the act Police cannot arrest without a warrant unless dealing with specifically indictable offences

 Unless you are caught by Police in the Criminal Code action, Police must not arrest any man or women without a warrant for arrest, again, unless dealing with specifically indictable offences

The Police may not arrest a person without a arrest warrant, unless they the Police are dealing in the moment, with reasonable and probable grounds for arresting without a arrest warrant for the commission of an indictable offence, a situation where a person is found committing a criminal offence or where there is an outstanding arrest warrant of committal to be enforced.

 Section 495 of the Criminal Code, contains three subsections. The first part deals with the circumstances under which a peace officer may arrest without a arrest warrant. These are the very serious charges or any charge where the person is caught in the act. The second part states when a peace officer shall not arrest without a arrest warrant. Again, this assumes that the person was not caught committing an offence by the officer. Included here are over 20 specific indictable offences such as theft, deceit, possession, mischief, gaming, betting, driving while disqualified, breach of a recognizance and failure to comply with a probation order to name a few. A peace officer cannot arrest without a arrest warrant for the hybrid offences which can be prosecuted by indictment or summary conviction nor can the officer, without a arrest warrant, arrest persons to be charged with committing a summary conviction offence

Dealing with a prohibition under s.495(2) against arrest without a warrant where the alleged offences committed were hybrid or summary conviction offences, the Police may not arrest without a warrant. Unless The police are in hot pursuit of a suspect, or there is evidence of exigent circumstances, or the suspect was found committing an offence, the Police Force have reasonable and probable grounds to believe that a supect had committed an indictable offence and there the Police had reasonable grounds to believe that the suspect had to be arrested in the public interest to establish identity, secure or preserve evidence or prevent the continuation or repetition of the offence or the commission of another offence, THERE IS NO POWERS OF ARREST. In fact, under s.495(2) it is the duty of the police not to arrest a person without a arrest warrant for certain types of offences unless the offender comes within subsection (d) and (e) of s. 495(2). The opening words of the subsection are clear "a peace officer shall not arrest a person without warrant for ...". It is not a discretion, it is a duty not to arrest without a arrest warrant.

   Section 495 of the Criminal Code prescribes the powers of arrest of a police officer without a warrant. Under s.495, and subject to certain exceptions which I will deal with shortly, there is no authority for a police officer to arrest a person committing a summary conviction offence without a warrant unless the officer finds that person in the act of committing the offence. The same restriction on arrest without a warrant applies to a hybrid offence under which the prosecution has the option to proceed by way of indictment or summary conviction against a person.

If one is unlawfully arrested without a warrant, it follows that any demands placed on a suspect or accused  under threat of incarceration would be improperly made. In arresting a suspect  without a warrant, the police would offended s.495(2) of the Criminal Code of Canada and breached a suspects rights under s.7, security of the person and s.9, the right to be free from arbitrary detention and imprisonment.

Reference:

R. v. Dobrotic, 1997 CanLII 9564 (NB CA), <http://canlii.ca/t/1l742>

Wilful Obstruction of Police Officer: Defined

 Refusing to identify oneself, is it a right or considered a criminal charge of wilful Obstruction of Police Officer

Unless a Police Officer witnessed you commit a crime according to the Criminal Code of Canada, violate a provision of a Provincial Act, or contravene a Municipal bylaw, there is no legal obligation to identify oneself to the Police.

Reference: R. v. Lansdell, 2009 ABPC 355 (CanLII), <http://canlii.ca/t/27wx6>

[42]            Two important cases that need to be considered relating to wilful obstruction of police officer in circumstances where individuals refuse to identify themselves to police officers : R. v. Moore 1978 CanLII 160 (SCC), [1979] 1 S.C.R. 195 (S.C.C.)(Moore) and R. v. Guthrie (1982), A.R. 435 (Alta. C.A.)(Guthrie).

[43]            In Moore, an officer stopped the accused after he drove his bicycle through a red light.  The officer intended to give him a traffic ticket for that infraction.  The accused refused to give his name and address to the officer.  The trial judge instructed the jury that there was no evidence of obstruction.  The British Columbia Court of Appeal allowed the Crown appeal and ordered a new trial.  The Supreme Court dismissed the accused’s appeal.  Spence J. wrote the majority judgment.

[44]            Spence J. observed that The Summary Convictions Act (British Columbia) applied s. 450(2) [ now s. 495 (1)(b)] of the Code to offences committed under British Columbia statutes.  This Code section allowed the police to release the individual if the public interest in certain factors can be satisfied without retaining the individual in custody.  Included in those public interest factors was “the need to establish the identity of the person.”

[45]            At p. 203 ‑ 4 Spence J. observed:

“In accordance with those provisions, Constable Sutherland could only have arrested Moore for the summary conviction offence of proceeding against a red light if it were necessary to establish his identity.  The constable, therefore, in requesting the appellant Moore to identify himself, was carrying out the duty of enforcing the law of the Province in this summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or take the more modern form permitted under the said Summary Convictions Act of British Columbia of issuing a ticket.

I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the constable’s request for his identification he was obstructing that constable in the performance of his duties.  As did the members of the Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable on duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of summary conviction proceedings.

I also agree, with respect, with the learned members of the Court of Appeal that this conclusion in no way opposes or ignores the judgment of the Queen’s Bench in Rice v. Connolly.  In that case, the appellant was seen by police officers behaving suspiciously.  On being questioned, he refused to say where he was going or where he had come from.  He refused to give his full name and address, although he did give a name and the name of a road which were not untrue.  He refused to accompany the police to a police box for identification purposes saying, “if you want me, you will have to arrest me”.  He was acquitted by the Court of Appeal upon a charge of obstructing the police.  It is paramount to note that the appellant there had not committed any offence in the presence or view of a police officer.  He had simply been acting in what the constable regarded as a suspicious manner.  I view the situation very differently when a person is actually seen by the constable committing an offence.

Therefore, for the reasons which I have outlined above, I am of the opinion that the officer was under a duty to attempt to identify the wrong‑doer and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance of his duties.

I add that in coming to this conclusion I have not forgotten the provisions of the Bill of Rights nor the topic of individual freedom generally but I am of the opinion that there is not even minimal interference with any freedom of a citizen who is seen committing an infraction by a police constable in the police constable simply requesting his name and address without any attempt to obtain from that person any admission of fault or any comment whatsoever.  On the other hand, the refusal of a citizen to identify himself under such circumstances causes a major inconvenience and obstruction to the police in carrying out their proper duties. So that if anyone were engaged in any balancing of interest, there could be no doubt that the conclusion to which I have come would be that supported by the overwhelming public interest.”

[46]            Ms. Myers, counsel for the accused,  takes solace in the reasoning of McClung J.A. in Guthrie where he opined at paras. 8 - 9:

We view the right of silence in response to police interrogation, custodial or otherwise, as too firmly established within the common law to be unseated by mere judicial erosion. It must await statutory impetus as exampled in the Immigration Act, R.S.C. 1970, c. 325, s. 19(2), the Customs Act, R.S.C. c. 58, s. 239, s. 233(2) of the Criminal Code (leaving the scene of an accident) and the various provincial enactments concerning the investigation of highway traffic accidents. See Ratushny, Self-Incrimination in the Canadian Criminal Process (1979), page 144. To this extent the result in Moore v. The Queen, supra may be said to turn on the inferral of an obligation to speak out drawn from a peace officer's power of arrest without warrant in summary conviction offences as recited in Criminal Code s. 450.

The common law right of silence in an interrogative setting is separably supported in recent judgments issued within the Supreme Court of Canada. Lamer, J., in Rothman v. The Queen (1981), 35 N.R. 485, 59 C.C.C. 30, would locate it within freedom of speech. Dickson, J., writing in minority in Moore v. The Queen, supra, noted that the proposition took root in two other fundamental common law principles, namely; the presumption of innocence and privilege against self- crimination, although as made clear in R. v. Marcoux and Solomon, 4 N.R. 64, 1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763 the latter is now relegated to simple privilege against testimonial compulsion. Additionally, and the point is made by Dr. Glanville Williams, if silence in the absence of a statutory compulsion to answer were obstruction all such statutory imperatives would be unnecessary. Demanding Name and Address (1950) 66 Law Quarterly Review 465.”

[47]            These comments must be put in their proper context.  In Guthrie, the accused was stopped by police officers who were suspicious of his presence in the police parking lot because there had been previous break‑ins of police vehicles.  The officers asked her why she was in the parking lot and informed that she would be detained until she identified herself.  She refused.

[48]            The provincial court judge felt obliged to convict Ms. Guthrie because of Moore.  McClung J.A. held that the trial judge was not bound by Moore because there the accused was not found committing a criminal offence: see para. 7.

[49]            Moore and Guthrie can be reconciled.  In Guthrie the police did not have the basis for a lawful arrest, and no triggering obligation pursuant to a Code section to identify the person detained.  In Moore, the officer had the basis for a lawful arrest because he found the accused “committing an offence” and a need to identify the accused arose.  A refusal in the latter situation gives rise to a wilful obstruction while in the former circumstances it does not.

JDDC: PLEASE NOTE:

It is important to actually read those decisions fully because  the dissenting Supreme Court of Canada Opinion actually presents a strong argument that the Police cannot charge one with Obstruction of Police Officer by simply refusing to identify oneself.

Reference: Moore v. The Queen, 1978 CanLII 160 (SCC), [1979] 1 SCR 195, <http://canlii.ca/t/1z76c>

Power of Arrest

But law enforcement, for that reason, does not grind to a halt. There is no possibility of frustrating the enforcement of provincial law by refusing to identify oneself since the police have the clear power of arrest in these circumstances for the primary offence, to establish the identity of the accused or to assure his attendance in court. It is beyond dispute that the accused was prohibited by the provisions of the Motor-vehicle Act from proceeding against the red light, an act which he has admitted. Constable Sutherland was carrying out his duties under the Police Act, 1974 (B.C.), c. 64, when he stopped the accused and asked his name and address. Although Constable Sutherland had no power under s. 63 of the Motor-vehicle Act to arrest the accused without a warrant, additional powers of arrest contained in s. 450(2) of the Criminal Code were available. These provisions of the Code are made applicable by virtue of s. 101 of the Summary Convictions Act, R.S.B.C. 1960, c. 373. The most important result follows, as Mr. Justice Spence concludes, that Constable Sutherland could have arrested the accused for the offence of proceeding against a red light if it were necessary to establish his identity. However, with great respect, I cannot agree that, as a consequence, the accused was guilty of the further, and much more serious, offence of obstructing the constable in the performance of his duties by refusing to divulge his name and address.

No Common Law Duty

There is no duty at common law to identify oneself to police. As was stated by Lord Parker in Rice v. Connolly[5], at p. 652:

[Page 209]

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest.

The case stands for the proposition that refusal to identify oneself to the police could not constitute obstruction of the police. The Court distinguished a refusal to answer, which is legal, from a “cock and bull” story to the police, which might constitute obstruction. No other distinction was made. Lord Parker said, p. 652:

In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and silence or refusing to answer, something which he has every right to do.

In Ingleton v. Dibble[6], a distinction was drawn between a refusal to act, on the one hand, and the doing of some positive act, on the other. Bridge J. (with whom Lord Widgery C.J. and Ashworth J. concurred) said, at p. 279:

In a case, as in Rice v. Connolly, where the obstruction alleged consists of a refusal by the defendant to do the act which the police constable has asked him to do—to give information, it might be, or to give assistance to the police constable—one can see readily the soundness of the principle, if I may say so with respect, applied in Rice v. Connolly, that such a refusal to act cannot amount to a wilful obstruction under s. 51 unless the law imposes on the person concerned some obligation in the circumstances to act in the manner requested by the police officer.

The legal position in England and Wales has been described in these terms in Police Powers in England and Wales (1975), by Leigh, at p. 195:

And in general it still remains the rule that a citizen has a right to be as unco-operative as he pleases, provided that he does not impede the course of justice by knowingly giving false information to the police.

[Page 210]

In the Ontario case of Regina v. Carroll[7], the facts, as disclosed in the headnote, were these. The accused was charged with unlawfully and wilfully obstructing a police constable while engaged in his duties as a peace officer, contrary to s. 100(a) of the Criminal Code, 1953-54 (Can.), c. 51. The accused, in company with three other men, was proceeding along a highway at an early hour in the morning. The constable heard them whistling and yelling and he advised them to be quiet and go home. Three of the party followed his advice. The accused remained. The constable asked him to produce his identification but the accused refused to do so and proceeded on his way. The constable caught up to him and again asked accused to identify himself. An argument and struggle followed and the accused was arrested. He was later charged with obstructing a police officer and was convicted. He appealed. The conviction was quashed. It was held that under the circumstances, the accused was not under any duty to identify himself as requested.

The Crown conceded in this Court that no such obligation was to be found in the common law. From whence then comes such a duty? Where does one find the legal compulsion to answer? A person cannot “obstruct” by refusing to answer a question unless he is under a legal duty to answer.

Hybrid Offence: defined

 

 Hybrid Offence

While the Criminal Code of Canada creates a hybrid offence, an individual does not commit a hybrid offence. The individual, in each set of circumstances, commits an offence. The mechanism for determining whether it will be prosecuted in a manner in which he or she will be guilty, on conviction, of an indictable offence or a summary conviction offence is the Crown discretion.

Technically, a hybrid offence is an indictable offence until the Crown elects to proceed by way of summary conviction; R. v. Ellerbeck reflex, (1981), 61 C.C.C. (2d) 573.

Section 34 (1) of the Interpretation Act, R.S.C. 1993, c. I-21 provides:

34. (1) Where an enactment creates an offence,

(a)        the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment;

(b)        the offence is deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence; and

(c)        if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.

In Dallman v. R., [1942] 3 D.L.R. 145, the Supreme Court of Canada considered a provision of the Criminal Code creating the offence of conspiracy with respect to indictable offences. Kerwin, J., delivering the judgment of the court, stated:

In our view . . . all that is meant by "indictable offence" in s. 573 of the Code is that the offence as to which a conspiracy is charged may be prosecuted by indictment.

If the Crown proceeds in a court with summary conviction jurisdiction but does not specify the mode of procedure, it is deemed to have elected to proceed summarily. See R. v. Robert (1973), 13 C.C.C. (2d) 43 (Ont. C.A.); R. v. Bee (1976), 28 C.C.C. (2d) 60 (B.C.C.A.) and R. v. Dosangh (1977), 35 C.C.C. (2d) 309 (B.C.C.A.).

In hybrid offences, the same essential elements must be proven whether the Crown elects to proceed by way of indictment or by summary conviction. Once an offence under s. 252 has been determined by the Crown to be a summary conviction offence, the provisions of the Criminal Code relating to summary conviction offences apply, not procedures relating to indictable offences. The Crown's option has been exercised: the case has been determined to be less serious than an indictable offence and the procedure is less formal. The Crown cannot arbitrarily reverse its decision and arrive at a different result; there must be sound reasons to justify such a change. The Crown's election is protected by a strong presumption of regularity and the offence is deemed to have been correctly characterized. The exercise of the Crown's discretion is subject to judicial review only for "flagrant impropriety" (Balderstone) or "improper or arbitrary motives" (Beare).

Crown Election - summary conviction or indictable

Crown Election - summary conviction or indictable 

The election made by the Crown is deemed to be a considered one and the product of a deliberate choice. Counsel for the Crown decides whether to proced by way of Summary Conviction or Indictment. Thereafter, the Defendant's plea will be taken taken, the trial begins...

The election, to proceed by summary conviction therefore, must be taken to signify that if the Crown was prepared to treat the charge against the Defendant as not being sufficiently grave to warrant proceeding with it by indictment. In brief, it was willing to go ahead with the trial on the understanding that, if convicted, the appellant would be exposed to a less severe punishment than if the charge was proceeded with by indictment.

Hybrid Offence Definition:

A criminal offence for which the prosecutor has the option of charging as an offence punishable by summary conviction or as an indictable offence. 

The concept of a hybrid offence is captured by Justice Salhany, in 2008, as follows:

" ... some crimes such as the dangerous operation of a motor vehicle, vessel or aircraft and impaired driving have been invested with the dual or hybrid character of being both indictable and summary conviction offences.

"In such instances, the Crown (prosecutor) has the absolute right to elect how the offence will be prosecuted unless the defence can establish that the Crown's election amounts to an abuse of process.

"Neither the Court nor the defence has the right to direct the Crown how it must proceed.

"Moreover, it has been held that the Crown's choice, once made, is not exhausted, particularly where it has the consent of the defence."

In R v Boutillier, Justice Freeman of the Nova Scotia Court of Appeal wrote:

"The offence the respondent was alleged to have committed was, therefore, in the eyes of the legal system and of the world, a summary conviction offence, that is, a relatively minor one, not serious enough to justify proceedings by indictment.

"While (the Criminal Code) creates a hybrid offence, an individual does not commit a hybrid offence. The individual, in each set of circumstances, commits an offence. The mechanism for determining whether it will be prosecuted in a manner in which he or she will be guilty, on conviction, of an indictable offence or a summary conviction offence is the Crown discretion.

" ... a hybrid offence is an indictable offence until the Crown elects to proceed by way of summary conviction."

What is criminal law and what is it for?

 

 

What is criminal law and what is it for?

 

Criminal law sets a standard of behaviour for all people who live in our country. Its main purpose is to protect society and to keep our communities peaceful and safe. Most people in our society are law-abiding. Their conduct does not fall below that set as a minimum by the criminal law. When a person's behaviour does not meet the standard set out in the Criminal Code and other laws, they could face criminal charges.


A person accused of a crime is entitled to a fair trial in a court of law. No person may be punished for a crime without admitting guilt or being found guilty at a criminal trial. Individuals who are not capable of distinguishing right from wrong are not held criminally responsible for their actions. For example, a mentally ill person who hits someone will not be punished if they did not know that what they were doing was wrong.
In the case of young children, we go one step further. We accept, as a matter of law, that children under twelve years of age cannot think criminally. No child under twelve years can even be charged with a criminal offence.


In Canada, no one can be convicted of a criminal offence unless the offence can be found in a written law, called a statute. Criminal offences are written so everyone is certain about what behaviour is against the law and what penalty applies if someone breaks the law. A person breaks the law only when their behaviour comes within the activities described by this written law. The law sets out a range of penalties. A judge chooses the penalty based on the facts.


Most of our criminal law is in the Criminal Code. The Criminal Code contains hundreds of offences. Common examples of criminal offences are theft, break and enter, assault, fraud and impaired driving. Weapons offences, arson and sexual offences are other examples of the wide range of behaviour covered by our criminal laws.


The Criminal Code also sets out the procedure for a criminal case, from the laying of the charge to the appeal. For information on criminal procedure see section entitled The Process, below.

Impact of a Criminal Record

 

 

Impact of a Criminal Record

As an accused, you could receive a criminal record. This section provides information about criminal record and how it could impact you.

Criminal Record

A criminal record may be created for anyone over 12 police allege has committed a crime or who has been convicted of a criminal offence. 

A criminal record documents your contact or involvement with the criminal justice system, starting with police. Criminal records are kept in central computer systems most police agencies across Canada can use.

How a Conviction Can Hurt You

Sometimes, long-term effects can result from having a criminal conviction. If you are convicted of a criminal offence or found guilty but not convicted, you may be restricted from some activities. For example, you may not be permitted to travel to another country, such as the United States.

Canadian Criminal Offence: Summary vs. Indictable

Canadian Criminal Offence: Summary vs. Indictable

 

People sometimes get confused when they have been to court about what they have been charged with. Court can be a traumatic experience particularly for those people who made a simple mistake and were only arrested once in their life. The first time in court is the worst so it is easy for the mind to block out the memory of it. At best most people remember the experience as a little vague. And as time passes a vague memory rarely becomes more detailed.

One of the things people rarely remember after going to court is if the charge was summary or indictable.
The term “summary offence” corresponds with “misdemeanor” in the American lexicon .  On the other hand an “indictable offence” in Canada would correspond with a Felony conviction.
This is just a way for the courts to categorize offences as being less serious (summary) or more serious (indictable) in nature.

For example, a DUI charge which is considered a serious crime in Canada is still rarely categorized as an indictable offence unless someone was hurt in the process. On the other hand something like manslaughter is always indictable.

Some charges can go either way and is left to the discretion of the prosecuting attorney which further complicates the matter. If you are unsure of how your charge was cetegorized there is really no way to be certain unless you have access to your criminal record or court documents.

Once you have completed your sentence the following waiting periods must be met before you are eligible for a pardon:

Summary offence: 3 years

Indictable offence: 5 years

But remember to start the paperwork well in advance as it will save you some time.

Reference:
http://www.nationalpardon.org/blog/national-pardon-centre/canadian-criminal-offence-summary-vs-indictable

Criminal Code vialations of Escapes from prison et cetera

Interesting reading on Criminal Code vialations of  Escapes from prison et cetera

follow this link:

http://www.canadianprisonlaw.com/code/escape.htm

THE SAINT JOHN PROVINCIAL PENITENTIARY TO 1847

A Prison History

http://www.acadiau.ca/~thomson/prison/9-a-nbpenitentiary-1847.pdf

Many innocent people plead guilty to Criminal Charges because it is the lesser of two evils.

Many innocent people plead guilty to Criminal Charges because it is the lesser of two evils.

Maxim: When the plaintiff does not prove his case, the defendant is absolved

 Despite only unproven allegations being made against them many defendants are placed into the awful position of spending 6- 8 months in Jail waiting for a trial when they are in fact innocent. At trial the Prosecutors will be unable to prove their case against the Defendant and a Finding of not guilty will be the outcome.

Often Crown prosecutors will make a plea bargain, offering to drop the most frivolous charges, if the Defendant pleads guilty to a few of the remaining charges. The benefit to the accused is that they will only receive a 1-3 month sentence (time served while incarcerated will be taken of this calculation) then they are free after serving the remainder of the time, with a criminal charge now permanently on their record.
The Crown Prosecutors look to be doing their jobs, prosecuting criminals, and the jails are full.

One does not consider the impact this has on the innocent Defendant’s family. The family loses a loved one for a time, the immediate family may lose their only source of income, children are without a father, the Defendant may loses his or her Job, and many other factors which pressure innocent people to plead guilty when they are not so, with the promise of being released early.

Facing 6- 8 months in jail or longer to prove innocence or alternatively pleading guilty to charges that are totally without merit, the innocent (with their families to consider) are stuck between a rock and a hard place.
What at first appear to be, statistically, many validated criminal charges are in fact, many a man or woman’s rational choice between the lesser of two evils, the innocent plead guilty to get out of jail earlier, then spending time in Jail for crimes they did not commit.

The Criminal Justice system is inherently flawed and needs immediate changes, so that the innocent are relieved of the burden of spending lengthy jail terms for crimes they did not commit.