The commencement of Proceedings and Joinder of Counts

R v Sciascia, 2016 ONCA 411

Criminal Code provisions relating to joinder of offences and offenders are procedural in nature: para 74

Criminal Code proceedings are commenced by laying an information under oath alleging the commission of a hybrid offence (s. 504) or a summary conviction offence (s. 788(1)): para 31

Any number of indictable offences may be included in the same information (subject to murder exceptions), provided each is contained in a separate count: s. 591(1): para 32

S. 789(1)(b) expressly permits the inclusion of several summary conviction offences in separate counts in a single information: para 32

A joint trial on separate informations may be held, even in the absence of an accused’s consent, where the trial court concludes that a joint trial is in the interests of justice and that the offences or accused could initially have been jointly charged: para 46

A trial on separate informations or a single information  can include, as separate counts, several offences. It is of no moment whether those offences are exclusively indictable offences, exclusively summary conviction offences, or offences triable either way at the option of the Crown: paras 33 and 55​​

A Criminal Code information cannot include a count charging a provincial offence to which the POA applies: para 57

Young persons cannot be tried together with adults: para 51

The YCJA prohibits the joint trial of a young offender indictment and an adult indictment involving the same accused: R v PMC, 2016 ONCA 829 at paras 14-16 

Accused's Right to be Present at Trial: s.650(1) of the CC

Section 650(1) of the Criminal Code requires that, apart from some exceptions , an accused must be “present in court during the whole of his or her trial”.

To determine whether something that happened during the course of a trial is part of the “trial” for the purposes of s. 650(1), the question is whether what occurred involved or affected the vital interests of the accused or whether any decision made bore on “the substantive conduct of the trial”: R v Hassanzada, 2016 ONCA 284 at paras 127-129

Examples

Pre-charge conferences where the content of final instructions is discussed clearly affects the vital interests of an accused. As a result, s. 650(1) of the Criminal Code requires that the accused be “present in court” during these discussions.

Inviting and receiving submissions from counsel by email or other electronic means about the necessity for, or content of, jury instructions offends s. 650(1): Hassanzada at paras 130-131

Qualification of an Agent for the Accused

 

As a general rule, a representative is permitted to represent a defendant in certain proceedings in the OCJ.

 

Although the Criminal Code does not expressly give the trial judge power to prohibit a specific agent (which it defined at para. 24 as meaning a “representative”) from appearing in a particular case,  the power to do so exists by virtue of the court’s power to control its own process in order to maintain the integrity of that process. 

The procedure to be followed is as follows. The court should first determine whether the defendant has made an informed choice to be represented by the agent. In appropriate cases, the court may also inquire into the propriety of the representation. Disqualification is justified only where representation would clearly be inconsistent with the proper administration of justice. It is not enough that the trial judge believes that the accused would be better off with other representation or that the process would operate more smoothly and effectively if the accused were represented by someone else. Disqualification of an accused’s chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice. 

The circumstances of the particular case will inform the decision of whether to disqualify, including the seriousness of the charge and the complexity of the issues raised: R v Allahyar, 2017 ONCA 345 at paras 11-18.

Examples of conduct that could lead to disqualification include: questions of competence, discreditable conduct, conflict of interest and a demonstrated intention not to be bound by the rules and procedures governing criminal trials: Allahyar, para 19

Questions respecting the standard of competence required of licensed paralegals have been addressed in recent cases such as  R v Khan, 2015 ONCJ 221, [2015] OJ No 2096 and R v Bilinski, 2013 ONSC 2824, [2013] OJ No 2984.  

For qualification of agents in provincial offences, click here

Election as to Mode of Trial

 

Applicability of the Curative Provisio

 

The failure to properly afford the accused his right of election results in a lack of jurisdiction that cannot be remedied by the curative provisio under s.686(1)(b)(iv). This provisio applies only where jurisidction has been lost by some irregularity during the trial which caused no prejudice. It does not apply where the court was never properly constituted in the first place: R v Noureddine, 2015 ONCA 770 at para 56

But the curative provisio may apply where it is clear that the accused was tried in his forum of choice: Nourreddine at para 57

 

 

Interlocutory Charter/Certiorari Remedies

 

Trials will not be interrupted by appeals or certiorari applications impugning orders made in the course of ongoing criminal proceedings unless the applicant can establish that the circumstances are such that the interests of justice necessitates the immediate granting of the prerogative or Charter remedy by the Superior Court: R v Comtois, 2016 ONCA 185 at para 4

Bifurcation of Proceedings

 

Bifurcating proceedings (between the OCJ and SCJ) is undesirable and should be avoided in all but exceptional cases. Bifurcation negatively impacts the effective and efficient functioning of the courts; it is undesirable and inefficient for both the legal system and for litigants. Courts should be reluctant to interpret legislation in a way that would require such bifurcation. R v Fercan Developments Inc., 2016 ONCA 269 at paras 57-58