Week1

In the beginning
 In 1979 the Supreme Court was faced with a dilemma.
 The crown had proven "beyond a reasonable doubt" that the City of Sault Ste. Marie had
polluted the St. Mary's River
 Water that leeched from the landfill sight created by a garbage disposal contractor had
polluted the river.
 Proof that the pollution was caused (causation) was proof of the 'Actus Reas'…. The
wrongful act.

The creation of 'Strict Liability'

 At this time there were only 2 categories of offences:
1. Absolute Liability
 2. Mens Rea
 The court found it repulsive to convict a completely innocent entity (a city has the same
standing as a person in law).
 The court created a third category of offences called STRICT LIABILITY

Absolute liability, strict liability and mens rea

 Absolute liability: the only proof (required by the crown to meet her burden of proof ) that is
guilt beyond a reasonable doubt
 The only defences available are the 8 common law defences
1. Involuntariness - wrong drug prescription taken in error
2. Automatism - sleep walking
3. Duress - car jacking
4. Necessity - dire emergency with the vehicle as you are driving
5. Insanity - Alzheimer's
6. De minimum non curat lex - matter too minimal or minor to deal with
7. Self defence - applicable in criminal assault trails
8. Act of God - tree falls on your car while driving.
No drunk

Strict Liability
 In a strict liability offence, once the prosecutor proves the actus reas
 The burden of proof reveres to the defendant (reverse onus)
 It is then up the defendant to prove due diligence on his part
 In spite of the fact that the defendant did everything possible to avoid committing the
offence, the offence happened anyway
Mens Rea (Guilty Mind)
 In a mens rea charge, the crown has to prove that the defendant intentionally committed the
offence, or was willfully blind to committing the offence of or had a highly negligence state
of mind
 Prime example is fail to remain or flight from police
 Crown must prove that the defendant knew he was in an accident and that he intentionally
left the scene in order to avoid criminal or civil responsibility

Substantive and Procedural Law

 Substantive law tests contain the actual wording of the law
 E.g. The Highway Traffic Act describes those enforceable rules that drivers must follow. In
other words, the substance of the law itself
 Procedural law test contain instructions to the police, the prosecution, the defence, and the
bench (the judge or justice) as to how to proceed with laying a charge. What forms to use,
time restrictions called statues of limitations
 E.g. The Provincial Offences Act is an example of procedural law text

Criminal vs Provincial Law

 Criminal is federal law. The Criminal code of Canada is a substantive law book. The crown
can proceed either summary conviction (minor ) or by indictment (serious) on several
charges called hybrid offences
 Provincial offences are similar to summary conviction criminal offences, the procedure is
very much the same in both
 That's why we refer to Provincial Offences Law as Quasi-Criminal Law
 The distinction also becomes important in ethics as you cannot charge a contingency fee
(about 30% of monies collected) charged upon completion of successful criminal or quasi-
criminal case.

Parts of the Provincial Offences Act

Part 1. Certificates of offence, commonly referred to as a “ticket”. ***

• Deals with all minor charges, such as stop signs, speeding, red lights etc.
• The certificate is submitted to the court for processing. (must be within 7 days of giving
the ticket***)
• A copy of the certificate called the “offence notice” is served on the defendant.
• When laying a charge under part 1, the officer has a 30 day statute of limitations, as
opposed to a part 3 (most serious offences) in which the officer has 6 months to lay
the charge. The defendant has 15 days to respond to the offence notice.
 • The defendant has a choice of:
• 1. Paying the ticket.
• 2. Requesting an Early resolution meeting with the prosecutor or
• 3. Requesting a trial date.
• If the defendant fails to respond to the offence notice, the certificate goes on a Fail to
Respond docket and the defendant is convicted on the 45th day (in Hamilton) some
jurisdictions give a shorter time.
• Max fine in part 1 is $1000

Part 2: is parking and is no longer applicable as parking court has been discontinued

Part 3: this section addresses procedure on the most serious charges (no speeding)
 Drive suspend
 no insurance and permit no insurance
 stunt driving
 fail to remain
 use plate not authorized for vehicle
 The maximum penalty for these offences under a POA is $5000
 The max jail time is 6 months.
 The same as a summary conviction criminal offence (remember quasi criminal)

Part 4: Trail and Sentencing

 This part addresses issues such as:
 Jurisdiction (does the court have the authority to hear the case?)
 Change of venue (can you change the court location?)
 Charged in newfound land but trail is in Ontario
 A very violent case will probably have a hard time getting a fair jury and therefore a change
in venue is reasonable.
 Stay of proceedings (the matter is ended by the prosecution)
 Section 34: Amendments to certificates and information ***
 Power to amend
 Remember * that a part 1 document served by the police on the court is called a certificate of
offense.
 When a summons is served on the defendant, for a more serious part 3 charge, the copy that
goes to the court is retyped and is called an information.
This part doesn’t deal with limitation

Part 5: General Offences

 Limitation period
 The POA has a 6 month limitation period starting from the date that the offence was or was
alleged to have been committed. (the charge is laid)
 This limitation period applies to those charges where there is no separate penalty section in
the charging act.
 E.g. The Compulsory Auto Insurance Act has a 2 year statute on some charges.
 Parties to an offence
 Interpreters
 Section 80: Common law defences (listed above)
 Section 81: Ignorance of the law is not an excuse *

Part 6: Young Persons

 A person 12 years of age or more but under 16. (16 year old individual can drive)
 If under 15 then they would be sent to youth court.
 No person shall be convicted of an offence if they are under 12 years.
 Notices to parents etc.
 Compelling young persons attendance at trial
 Pre-sentence reports
 Limited penalties

Part 7: Appeals and Review

 Section 116: Appeals under part 3: Powers of the Court
 Requirement of factums?
 Grounds for appeal
1. The justice made an error in a finding of fact
2. The justice made an error in a finding of law.
 Reasons for judgement (importance in finding grounds for appeal
 Appeals heard by Judge of the Ontario Court of Justice.
 Dismissal on abandonment

Part 8: Arrest, Bail and Search Warrants

 Persons in custody must be brought before a justice.
 72 hours is the max amount of time they can be held
 Bail court even comes in Sat. morning (wasn't always like this, way back then, they
would have to wait till Monday if they were arrested on a Friday)
 Recognizance
 Search Warrants
 Tele-warrants (Application over the phone and the Justice issues the warrant over the
phone and then emailed or faxed and the cops have a warrant.)
 Seizures
 No bailiff
Part 9: orders on application under statutes (we never do this)

Part 10: Memorandum of Understanding between the province and the municipalities
 Municipalities have agreed to prosecute part 1 offences and soon part 3 offences.

Week2

The POA Act has 7 charges

1. Fail to appear
 Section 42
 Should have a fee and other penalty but if ignored are not charged as they don’t want
to ruin the witness's interpretation of the law (saw they are on jury duty later on, they
want them to be neutral about doing that)
2. Breach of Probation
 Section 75
 Provincial is probation
 Federal is parole
 Most people go on probation if they are facing a large fine or jail time and they just
got a great job, The paralegal says to the prosecutor/judge to put the guy on probation
(in the hopes they won't re-offend)
3. Party to an Offence (Aiding and Abetting)
 Section 77
 Abet: encourage someone to commit the crime
 Aiding: being involved
4. Counselling another to commit an offence
 Section 78
5. False Statement
 Section 86
6. Contempt of Court
 Section 91
7. Publishing the Name of a Yong Person
 Section 99
 definition: Someone under the age of 15
 Sometimes they won't name an accused if it identifies the victim who may be a young
person.

Regulation 200 (Tiny regulation at the back of the POA)

Sec. 4 The calculation of time
Sec. 5 Mail deemed delivered on the 7th day following the date which it was mailed
Sec. 6 Set fines to be set by the Chief Justice
Sec. 7 Notices and applications
Sec. 11 The clerk shall not accept a part 1 charge more than 7 days after offence date
Sec. 15 Amendments are to be dealt with only in court

 When entering the courtroom before the judge, you can go to the clerk and ask for the
certificate to ensure that there is a date stamp that shows the police officer filed the ticket
within the 7 days of the offence, and no amendments.
 Justice of the peace (JP) is the ONLY one that can change the ticket

7 Fatal errors on a Part 1 Certificate

 Section 9.1 When an individual requests a trial on a part 1 certificate and fails to appear,
the Justice of the Peace will deem the defendant “not to dispute” the charge and shall
convict the defendant if the certificate is complete and regular on its face.
 What makes a ticket incomplete or irregular on its face?
1. No informant at the top of the certificate.
2. Missing date and or time
3. Missing name of defendant
4. Missing municipality
5. Missing or wrong set fine
6. Missing signature of informant (the police officer)
7. Missing charge and or Section # of the charge.
 *** These errors apply during a section 9.1 only
 They do not all apply during a trial. When any of the above occur. The J.P can
“quash” the charge.

Handling Provincial Offences: Text

Purpose:
1. Simplify provincial prosecutions
2. Eliminate Technical defences
3. Promote speedy inexpensive decisions without sacrificing justice.

Chapter #1 of the textbook

The first chapter deals with how Justices of the Peace (JP) should assist an unrepresented
accused, and to what extent.

R. v. Messina (2005) Ontario Court of Justice

 The appeal judge in this case was very protective of the unrepresented accused.
  The court listed 8 criteria to assist an unrepresented defendant including offering a pen
and paper to make notes.

Durham (Regional Municipality) v. Saeed 2010

 The court ruled that the burden of assistance was limited to information necessary for
the accused to bring out a full answer and defence as is guaranteed in section 7 of the
Charter.
 The difference between the Messina and Saeed cases is dramatic.
 These cases exemplify the judicial independence enjoyed by Judges and Justices of the
Peace.

R.v. Zehr (2011) and R.v. Etamadi (2013)

 Cross Examination
 The right to cross-examine is fundamental to justice.
 J.P. should rarely interfere with the defendant’s cross examination
 Questions of what appear to be of little relevance can be asked and relevance can be
proven in the absence of the witness.
 so that the questioner does not have to “show their hand”

Brown v. Dunn 1893 (Wikpedia)

 cross examination.

R.v. Irving (2012)

 When a justice intervenes excessively on behalf of the prosecutor
 This can create a “reasonable perception of bias” when it becomes clear that the judge
is on the side of the prosecution.

R.v. Clarke (2012)

 A section 59(2) application requires the court first find exceptional circumstances
before proceeding to the next 2 questions which are
1. The oppressiveness of the fine
2. The interests of justice.
 This is a very important concept.

R.v. Reid (2012)

 A defendant has a fundamental right to make final submissions to the court. Denial of
that right give the impression that “the fix is in” and that the sentence is “predetermined”

R.v. Lo-Hing (2013)

  The prosecutor is not permitted to ask about prior bad behavior or prior
convictions unless the defendant first introduces evidence of his own good character.

R.v. Cassista (2013)

 This is called OPCA (Organized Pseudo-legal Commercial Argument).
 It is used by the freemen of the land when they argue that they don’t recognize the
crown or the courts authority.
 Litigants are entitled to the shortest possible shrift
 Don’t give them any more time than is necessary to make their case.

Real Estate counsel of Ontario v. Wang (2013)

 1. It is an error to fail to inquire about a defendant’s ability to pay, before imposing a
fine.
 2. The trial justice must conduct a plea comprehension inquiry.
a) is the plea voluntary?
b) does the def. understand the consequences of a conviction
c) does the def. understand she is waiving her right to trial
d) when the facts are read in by the prosecutor, the defendant must essentially agree
with the facts.
e) if the guilty plea is not unequivocal (for certain) the j.p has the right to strike the
plea and order a trial.

R.v. Pynappels (2014)

 A trial judge should not reject joint submissions for sentencing made together by both
the prosecution and the defence.
 Only if:
1. the submission is contrary to the public interest
2. and/or the sentence would bring the administration of justice into disrepute

R.v. Rodriques (a complicated issue)

 We talked about the 7 fatal errors on a part 1 certificate
 That, if discovered by the J.P during a Section 9.1 Deemed not to dispute motion
 The J.P would quash the certificate as it was not complete and regular on its face.
Remember:
 The defendant is not present, nor anyone representing the defendant:
 That is the reason why the j.p. cannot make amendments to the certificate and
correct the errors.
 If a defendant or his agent is present, the prosecutor will be allowed many amendments
that would not be permitted in a 9.1 deemed not to dispute situation.
  Historically, if a paralegal recognized a fatal error on the defendant’s copy of the offence
notice. We would not appear. We would hide in the hallway.
 That way the fatal error would apply (e.g. no informant, no officer signature, no
municipality etc.)
 The J.P would quash the ticket.
 If you failed to recognize the fatal error until your case was called, the prosecutor would
then motion for an amendment to correct the certificate and likely the motion would be
granted.
 Therefore if you were not in court. The matter would have been quashed.
 OK. finally to Rodriques.
 The court said that we don’t have to hide in the hallway anymore.
 We can make a conditional appearance, where we would point out the error to the
prosecutor, the prosecutor points it out to the JP and the JP quashes the certificate.
 Your appearance does not harm your defendant as the ticket gets quashed as if no one
appeared and a Section 9.1 Deemed not to dispute applied.

York Regional Munic. V. Datoo 2014

 During a Guilty Plea, if a JP finds a defect, he cannot quash the ticket.

R.v. Shuttleworth 2013

 The cross-examiner, cannot limit the witnesses’ response to the question.
 They cannot demand a yes or no answer.
 They cannot prevent the witness from giving more evidence.

R.v. Poonia (2014)

 Evidence may not be admitted unless it is relevant, credible and trustworthy,
 And therefore before admitting a statement or other evidence into the record, there is
always a necessity to hold a voir dire (a trial within a trial).
 Most often to determine the voluntariness of a statement given to a person in authority,
e.g. police.
 When a police witness gives evidence that the defendant provided a statement, the
prosecutor stops the officer from introducing the statement until a voir dire is held.
 The officer is re-sworn to tell the truth and a mini-trial is held.
 The questions that must be asked of the officer are as follows.
1. Where were you when you spoke to the def. and where was the def.?
2. What were you wearing?
3. Did the def. speak good English?
4. Did the def. appear to be under the influence of alcohol or drugs?
5. Did the def. appear to have an operating mind?
 6. Did you hold out any threats, promises or inducements in any way towards the
defendant?
 At this point the defence can cross examine the officer as well as call the defendant to the
stand to give evidence to the contrary.
 At the end of the voir dire, the prosecutor asks that the statement be ruled admissible and
that any evidence taken in the voir dire be applied to the trial proper.

R.v. Kande (2015) - Motion for nonsuit –Evidence

 After the close of the prosecutor’s case, the defence can make a motion for nonsuit.
 A non-suit motion argues that there is NO evidence at all against the defendant on any of
the essential elements of the offence.
 The assessment by the JP does not require proof beyond a reasonable doubt, but only that
SOME EVIDENCE was found.
 If the JP finds “some evidence”, the defence can now call a defence.
 It is important to note that “some evidence” is enough to deny the non-suit by not enough
to convict.
 If the defence feels that is the case. They can call no evidence and make the same
submission of lack of evidence in a final submission.
 This time the JP must find “proof beyond a reasonable doubt” in order to convict.

Week3
Summary of Case Law from Chapter 2
The justice, the prosecutor and the defence

1. R.V Huxtable 2012

• Introduction of viva voce (spoken) evidence
• Concerning the ownership of a vehicle was found improper.
• The “Best Evidence Rule” dictates that an official document under the hand and seal of
the Registrar of Motor Vehicles proving vehicle ownership, Should have been used as
proof.
• The viva voce evidence of the officer was hearsay and inadmissible.
• This situation often arises in part 3 prosecutions for no insurance.
• The trial date will arrive and the prosecutor has not yet received the official ownership
documents from the Ministry of Transportation.
• If forced ahead due to time restrictions, the prosecutor may try to prove ownership
through the officer, hoping she can get away with it without objection from the defence.

2. R.v. Marriott 2013

• The prosecutor has the absolute discretion to withdraw the charge at any time.
3. R. v. Shuttleworth 2013
• The test for photo evidence is that they accurately depict the scene at the time the incident
occurred

4. R.v. Hawdon 2014

• The remedy for insufficient disclosure is first
• and then adjournment to allow the prosecutor to produce,
• and then if the prosecutor still fails to produce, a “stay of proceedings”

5. R.v. Boukaras 2017

• When the officer has no independent recollection of the event, he cannot use his notes “to
refresh his memory” as he has no memory!!!
• In this case the evidentiary rule of “past recollections recorded” would permit the
prosecutor to enter the officer’s notebook into evidence.
• The notes become evidence themselves as an exception to the hearsay rule.

6. R.v. Singh 2017

• Justices of the peace (JP) are granted very broad powers of amendment.
• The crown should always be given the opportunity to adduce evidence to support a
motion for amendment or make submissions as to why the amendment should be made.
• This is a manner of proceeding in accordance with natural justice.

7. R.v. Wei 2017

• The right to representation of choice is not absolute.
• If your representative is continuously too busy to attend at court on your behalf.

8. Hill v. City of Toronto 2007

• When a paralegal is blamed for a conviction and the defendant launches an appeal, The
defendant is obligated to notify the paralegal who is allegedly at fault, So that he can
attend the appeal and have the opportunity to take the stand and give evidence under oath
as to how he proceeded etc.

9. R.v. Dobson 2010

• Paralegal received guilty plea instructions from another paralegal.
• The client was not aware of the guilty plea, the paralegal had never met or spoken to the
client. Paralegal lost her license for 6 months.
• No written instructions from client and no client present.

10. R.v. Timushev 2011

 • The trial justice reversed the onus on the defense to produce some kind of evidence that
would produce evidence to the contrary.
• The defendant never has an onus to prove anything (Except in proving a due diligence
defense in a strict liability charge)
• As in R.v. Sault Ste. Marie SCC 1979.

11. R.v. Mangov v. City of Toronto

• At the beginning of the trial, the J.P asked about a potential resolution.
• In other words he already thought the defendant was guilty of the speeding charge and is
wondering if he had a chance to make a deal with the prosecutor.
• This gives the impression of bias towards the defendant.

12. R.v.20207000 (2009)

• We see just how many mistakes some paralegals are capable of making. After 7 serious
errors the trial resulted in a miscarriage of justice.

Duties of the prosecutor are:

• To tell the truth,
• to be fair
• and be a strong advocate
• No kind and understand
• the prosecutor’s job is not to win or lose but to bring out the truth

Trials and procedure: The order of a trial

1. introductions
• The J.P. must know who he is talking to, who is representing who, and whether or not
you are a lawyer or a paralegal.

2. pre-trial motions.
• It is to advise the JP if you have any to submit to the court.
• These are almost always requests for further disclosure or requests for an adjournment
because someone is not ready for whatever reason.
• If the request is reasonable, the JP will grant the motion and either order an adjournment
for further disclosure, or for any other reasonable logical purpose.
• As a rule the JP will rule in favor of the defendant when it comes to pre-trial motions.

3. arraignment (the reading of the charge)

• This is where the defendant enters a plea of NOT GUILTY
4. examination in chief of first prosecution witness called by crown (usually the police)

5. voir dire
• questions asked of police officer so crown can prove voluntariness of statement given to
police and statement entered into evidence by prosecution:
• note that defense witnesses can also be called on a voir dire

6. cross examination by defence after the voir dire and back into the “trial proper”

7. motion of non-suit and non-suit submissions by defence and response by prosecutor

8. first defence witness (usually the defendant) examination in chief

9. cross examination by prosecutor

10. final submissions by the defence

11. final submissions by the prosecution.

12. reasons for judgement.

COMMON ELEMENTS: Are elements that must be proven in each and every case.
1. Date
2. Time
3. Place
4. Identity of the Defendant
5. Charges laid contrary to what sections in what ACT
6. Highway
7. Motor Vehicle
no plate

Some Basic Rules of Evidence

• Relevance and admissibility
• Logically probative
• Reasonable Doubt
• Reverse Onus
• Hearsay (can be admissible not for the truth of its contents but just that it was said)
• Burden of Proof and Reverse Onus
Sec. 136-1: a Disobey stop sign - fail to stop
• a stop sign existed.
• Whether the sign appeared to be regulation in both size and height, that the stop sign was
not obstructed by snow, or low hanging tree branches etc.
• Whether there were lines on the road which tell the driver where to stop.
• The police officer had a clear view of the wheels of the vehicle and that they did not stop
rolling at any time.
• The police officer never lost sight of the vehicle in question until stopped and that in fact
it was a motor vehicle (hence highway traffic act) and that the offence occurred on a
highway. (Any street or road is defined as a highway not just the QEW or the 403.)
no weather

Stop Sign: Sec. 136 1 a

• Signs
• Lines
• Visibility including officers ability to observe violation
• Description of vehicle or driver if available
• Important distances
• Lighting
• speed limit
• Compass Directions

Red Light: Sec. 144-18

• Lights exist and are functioning properly
• Officer has watched lights cycle through at least 3 times.
• Lines are clearly visible on crosswalk and stop line
• Weather
• Visibility
• Distance of Officer from def. vehicle. etc.
• Any loss of sight by officer
• How far back from the stop line was def. when light turned red.

Unsafe Lane Change Sec. 154 -1-a

• Clearly marked lanes and visible (eg. snow covered is not visible)
• Speed limit
• Distance from other cars
• Was move made in safety
• Was there a signal made before the move.

Fail to Yield from Private Drive:

 • Prove Private Property
• Failed to yield.

Follow too Closely Sec. 158

• Cases : Rv. Ousely
• elements of offence are
• speed,
• distance
• follow

Careless Driving
• R.v. Namink: Momentary inattention or a simple error in judgement is not careless
driving
• McIver: If you hit a stationary object, you are guilty unless you can shed the blame on
someone or something else. eg. animal.
• Beauchamp: Driving standards are constantly shifting according to road and weather
conditions
• Buchanan: fact of an accident is insufficient to prove careless
• Wilson: Inadvertent negligence alone is not careless

Categories of Offences
Absolute examples:
• Stop sign
• Speeding
• Fail to produce various documents eg. Dr. lic.
• Various vehicle equipment rules eg. tires

Strict liability examples：

• Fail to yield to pedestrians
• Red light
• Amber light
• Unsafe turns
• Unsafe loads
• No insurance
• Drive under suspension

Mens Rea Examples：

• Fail to stop for police
• Disobey police officers signal
 • Fail to remain.

Fatal Errors on a Part 1 Certificates：

No informant
No proof of service
Wrong or no set fine
No name of def.
No date of offence
No year of offence
No location of offence
No offence indicated or not known to law
Issued past the limitation period.
No time of offence

CASES
1. Durham v. Saeed 2010 ONCJ 251
Duty of JP to assist unrepresented defendant.

2. R.v. Kogan 2010 ONCJ 662

JP has duty to assist

3. R.v Wong 2010 ONCJ 636

Internet evidence not permissible.

4. R.v. Zehr 2011 OJ NO 4493

Right to cross examine witnesses

5. R.v. Irving 2012 ONCJ 234

JP cannot intervene excessively to assist prosecutor.

6. R.v. Reid 2012 ONCCJ 305

Basic sentencing principles must be followed.

7. R.v. LO Hing- 2013 ONCJ 148

Prior bad behaviour only introduced on introduction of good behaviour.

8. R.v. Marriott 2013 OJ # 2684

Prosecutor has right to withdraw any time before case is called.

9. R.v. Cassista 2013 ONCJ 305

Organized Pseudo-Legal Commercial agreement.

10. Real Estate Council v. Wang -2013 ONCJ NO 515

JP must make inquiries as to ability to pay.

11. R.v. Shuttleworth 2013 ONCJ 749

Right to cross examination

12. Kingston v. Patry 2011 OJ #6667

JP should agree with joint submission unless in public interest or put administration of justice
into disrepute.

13. R.v. AlKerwi 2015 OJ #769

The right to make submissions.

14. R.v. Hawdon 2014 Carswell 5067

Lack of disclosure leads to stay of proceedings not a dismissal. Eg. Non-disclosure application.

Week 4
Preparation for trial:

Charge Screening by the Prosecutor:

 The part 3 prosecutor receives a Crown Brief from the charging police officers. The
brief may contain:
 1. A general occurrence report
 2. A collision report
 3. “Will Say” statements of witnesses
 4. Copies of any charging documents (summons and or information)
 5. Ministry of Transportation Documents (e.g. license and ownership information)
 6. Photos taken by police and any other documentary evidence.

Crown Withdrawal:
 Charge screening for provincial offences is based on the same principles set out in the
Crown Policy Manual published by the Attorney General’s Ministry.
 Where it is determined there is “no reasonable prospect of conviction” at any stage, the
prosecutor should withdraw the charge.
 Even when there is a reasonable prospect of conviction, the prosecutor must consider
whether it is in the public interest to continue prosecution.
  In POA court these decisions to withdraw are made on a daily basis.

What does the prosecutor look for:

 evidence on all essential elements of the offence
 No jurisdictional obstacles causing fatal flaws in case
 Ensuring the certificate or information are sufficient on their face or determine if defect
can be cured.
 Obligation to screen charges continues: if evidence comes out in favor of withdrawal the
prosecutor should withdraw.

Preparation by the Defence:

 1. Client Interview: If a car accident or ticket, it is beneficial to conduct the interview at
the scene of the incident. Collect photos and measurements at this time.
 2. Collect documents served on your client along with any photos or diagrams.
 3. Determine the offence(s) charged and determine through client interviews as to
whether you believe the crown has a good case. What does your client want?
 4. Know your client’s history and background, including education and employment, in
case you have to address sentencing on a plea or after a trial. This is often referred to as
the “know your client rule”. Your inquiries should determine if you believe the client
would make a good or poor witness on their own behalf.
 5. Practice trial procedure with your client by asking typical questions he would get on
both examination in chief and cross examination.
 6. At some point before the trial on the trial date, show the client where he will be sitting
or standing and explain how to address the court. Make the client familiar with the room
so they are less nervous.

Disclosure and “Full Answer & Defence”

 Disclosure is fundamental and related to the Section 7 Charter right to life, liberty and
freedom of the person.
 This is where we find the right to make a full answer and defence. We are guaranteed
that right through:
 R.v. Stinchcombe (1991) SCC.
 Disclosure is a continuing responsibility of the crown throughout the trial process.
 Section 46(2) of the POA states the defendant is entitled to make a full answer and
defence.

More Classifications of Offence

Mens Rea Offences:
 prosecutor must prove “causation” or that the defendant committed the illegal act.
  Prosecutor must prove that def. had a particular state of mind which depends on the
offence: such as intent, knowledge, or recklessness (willful blindess).
 Inferences about the defendant’s state of mind based on the common sense principle that
people normally intend the natural consequences of their actions.

Strict Liability
 The prosecutor must prove guilt beyond a reasonable doubt
 but the def. must only prove innocence on a balance of probabilities in this reverse
onus situation.

Absolute Liability
 Determined if absolute by:
 1. Overall regulatory pattern and purpose of statute
 2. Subject matter of the legislation
 3. Importance of the penalty.
 4. Precision of the language
 5. Effect on charter rights.
 No Absolute liability charge can lead to imprisonment.

Strict Examples:
 Unsafe lane changes or moves
 Fail to yield to traffic on through highway
 G2 Driver more than 0% Alcohol
 Cell phones
 Fail to surrender permit or Driver’s Licence.
 Drive Suspend
 No Insurance
 Careless Driving

Chapter 2: Role of the Justice, Prosecutor and Defence Advocate

2.1 The Justice
A Provincial Court Judge – they are addressed as:
 Your honour
 His honour
 Her honour
 Wear a black robe with red sash
 Appointed to position
  Must be a lawyer for at least ten years
A Justice of the Peace – they are addressed as:
 Your worship
 His Worship
 Her Worship
 No formal requirements for appointment
 Wears a black robe with a green sash

2.2 The Prosecutor

 May be a lawyer with the Ministry of the Attorney General, another branch of the
Provincial government or independent agent acting for the Provincial Government
 As of February 2002, all municipalities in Ontario have the responsibility for court
administration and prosecution of all Part I and Part II offences

2.3 The Defence

 May be represented by a lawyer or agent (paralegal).
 Access to Justice Act on October 19, 2006 regulated Paralegals. This allows them to
represent the defence.
 Paralegals and Lawyers cannot be barred from representing a defendant – other people
can be.

2.4 Rules of Professional Conduct

 The Law Society regulates Ontario lawyers and paralegals.
 Rules do not address every situation and should be observed in spirit as well as in the
letter – section 1.03(1)(f)
 Paralegal Rules of Conduct

2.5 Duties of the Prosecution

 Duty to the Truth
 No win or loss but present all material facts and law
 Duty to be Fair
 Disclose all potentially relevant evidence
 Show potential defences, deal with it openly and fairly
 Watch for ‘tunnel vision’
 Withdraw case if not in the public interest or no reasonable prospect of conviction
 Advocacy

2.6 Duties of the Defence Advocate

 Duty to Your Client
 Be Competent
  Be Prepared
 Duty to the Truth
 Confidential Discussions
 Right to Silence
 A Client who Confesses to You in Private
 Beware of Becoming a Witness
 Appeals

2.7 Duty of All Advocates

 Duty to the Court
 Do not misrepresent evidence, facts, law, rulings or precedents
 Do not express personal views
 Keep your promises to the court (undertakings)

 Duty to Witnesses
 Do not demean or humiliate a witness
 Do not discourage a witness from testifying
 Refresh a witnesses memory before trial
 Speak to a witness in the presence of a police officer or third person
 If the witness is represented communicate with the representative not the person
directly

 Use Common Sense

 Is a tactic fair?
 Does it pass the ‘smell test’?
 If you have any doubt seek guidance from an experienced representative

Week 5
Notice of Constitutional Challenge
 This notice must be served on:
 The Ministry of the Attorney General by Fax.
 The local prosecutor’s office
 The Court where the motion will be argued. (In this case the POA administration office.)
 Notice must be served at least 15 days prior to trial according to the Courts of Justice
Act, Section 109.

Joinder & Severance

 Section 38 of the POA outlines the power for joint or separate trials of defendants or
charges.
  There are times when a defendant wishes to have his charges heard separately so the
Justice will not hear evidence from both charges.
 Also there are times when co-accused would wish to be tried separately.
 There are also times that several defendants wish to be tried together for purposes of legal
costs and expediency.

Res Judicata: The matter has already been adjudicated.

 Autrefoix convict: The defendant has otherwise been convicted in a previous trial.
 Autrefoix acquit: The defendant has otherwise been acquitted in a previous trial.
 The most common example is in an impaired and over 80 drinking and driving trial. Once
the accused has been convicted of over 80, the crown cannot proceed on the impaired
charge as the same evidence will be repeated for both trials.
 The accused is “autrefoix convict”, the judge is already heard the evidence.

Abuse of Process: A procedural Defence

 Abuse may take the form of:
1. Successive prosecutions for the same offence
2. Delay in the laying of charges with the deliberate intention of impairing the
defendant’s ability to make a full answer and defense.
3. Unfair breach of an agreement not to prosecute
 Entrapment: Authorities provide someone with an opportunity to commit an offence
without acting on a reasonable suspicion that he or she is already engaged in criminal
activity or in the course of a bona fide inquiry.
 It is an abuse to prosecute solely for a civil debt.

Officially Induced Error

 It is a defence of officially induced error to an alleged violation of a regulatory statute,
where an accused has reasonable relied upon the erroneous legal opinion or advice of an
official, who is responsible for the administration or enforcement of the particular law.
 The error must be one of law and not of fact.
 The defendant must have provided full disclosure of facts to the official.
 Police officer can’t tell people that they should plead guilty because it’s the right thing to
do.

Unreasonable Delay: Section 11B Charter

 R.v. Morin, 1992 SCC
Known as the “Four Corners of Morin” the court must study:
1. Length of the delay
2. Waivers of time by the defendant
 3. Reasons for the delay
4. Prejudice to the defendant

 R.v. Jordan 2016 SCC

It now takes 18 months to trigger an unreasonable delay inquiry from the bench.
4 corners also apply to Jordan.

Ensuring the Appearance of Witnesses

 Before trial, either the prosecution or the defense should appear before a J.P. and show
why witnesses should be summonsed for trial.
 A prosecutor or a defense paralegal would both attend the intake office of the J.P. and
request summonses on the grounds that certain witnesses have relevant and material facts
to share regarding a particular charge.
 It is important for the defense to make sure witnesses are properly summonsed even
though they promise to appear without a summons or tell you there is no need for a
summons. These are the people who usually fail to appear when you need them the most.
 Always summons your witnesses.

Pleading Guilty to a lesser and included offence

 If the defendant pleads not guilty to the offence, but guilty to any other offence, whether
or not it is an included offence, the court may, with consent of the prosecutor accept the
plea and amend the information or substitute the offence to which the defendant pleads
guilty accordingly: Section 45 (4)
 The justice shall always undertake a guilty plea inquiry to determine whether the
defendant is:
 Pleading Guilty voluntarily
 Aware of the consequences of the conviction
 Waiving their right to a trial where the prosecutor must prove guilty beyond a reasonable
doubt.

Speeding points
0-15: 0
16-29:3
30-49:4
50+:6

Trials in the absence of the defendant

  An ex parte trial is still a trial with all of the burdens of proof, formalities and
evidentiary requirements.
1. The prosecutor must act fairly and adduce all relevant evidence, including that which
points towards innocence.
2. The defendant loses the right of cross examination and to make a full answer and
defence.
 A guy might be win even he is not here, if you lose some important elements.

Notices required under the Ontario Evidence Act (provincial act)

 1. 7 days’ notice for business records
2. 10 days’ notice for a medical report
3. 10 days’ notice for registered land documents
4. 10 days’ notice for an original of a telegram, letter, shipping bill, bill of lading,
delivery order, receipt, account or other written instrument used in business.
 Documents Section 47 (2)
 Business records made in the usual and ordinary course of business. EA section 35.

R.v. W.D. 1991 S.C.C. (The test of credibility)

 The justice must consider a 3 step process when considering the credibility
(believability) of a witness:
 1. If you believe the evidence of the accused: you must acquit.
 2. If you do not believe the testimony of the accused, but are left in reasonable doubt by
it, you must acquit.
 3. Even if you are not left in doubt by the evidence of the accused, you must ask yourself
whether, on the basis of the evidence you do accept, you are convinced beyond a
reasonable doubt by that evidence of the guilt of the accused.

Voluntariness and the right to silence

 Before the defendant’s statement made to a person in authority can be introduced as
evidence by the prosecution, it must first be proven beyond a reasonable doubt that it was
made voluntarily.
 There can be no threats or promises or inducements.
 It cannot be made in oppressive circumstances.
 It cannot be made by a defendant without an operating mind.

The questions of the Officer on the Voir Dire

 What were you wearing?
 Where were you standing? Where was the def. in relation to you.
 Did the def. speak good English and appear to understand the language?
 Did the def. appear to be under the influence of alcohol or drugs?
  Did the def. appear to have an operating mind?
 Did you hold out any threats or promises or inducements in any way shape or form?
 See R.v.Poonia (necessity of a voicr dire)
 NOTE: SEE R.V. WHITE (fishing case), where a statement under statutory
compulsion was not admissible. This applies to MVC statements.

Week 6 Sentencing

Maximums

• If no Maximum punishment is set out in the charging Act, the maximum penalty is a
$5000. Fine for offences proceeded under part 3.
• The maximum penalty under Section 122 of the Securities Act is $5,000,000. or
imprisonment for 5 years.
• The maximum under section 116 of the Consumer Protection Act is a fine up to $50,000
($250,000. for a corporation or imprisonment for 2 years less a day or both.
• The maximum under the Occupational Health and Safety Act for a corporation failing to
comply with the Act is $500,000.

Section 59: Minimum Fines

• Minimum fines are set out in Acts such as the Compulsory Auto Insurance Act.
Minimum fine for No Insurance is $5,000.
• The Court may reduce the fine to a lower amount or even suspend sentence if: there are
exceptional circumstances
1. the fine is unduly oppressive
2. Otherwise not in the interests of justice
• Many courts feel that there is a limited degree of flexibility in lowering a fine due to
exceptional circumstances.
• The mere fact of poverty is so common that it is often no longer considered to be an
exceptional circumstance.
• Compassion by the court is not an exceptional circumstance.

R.v. Winlow and R.v. Antunes

• Fines for speeding under S. 128 (14) are set by the chief justice of the province of Ontario
and cannot be adjusted. See R.v. Winlow
• Also R.v. Winlow and R.v. Antunes are the cases that allow the prosecutor to request a
“bump up” of the speed to the original clocked speed, as was recorded by the officer,
before the officer reduced the ticket at roadside.
 • You need to reduce the speed and then have a lower fine. You can’t keep the speed and
ask a lower fine.
• If the cop reduced your speed, you still want a trial and the prosecutor will bump up your
speed to the original speed.
• This is a threat given by the prosecutor to anyone who states that they wish to have a trial
on a speeding charge that was reduced by the police.

Time to Pay the Fine

• Section 66 (1) states that a fine is due and payable 15 days after its imposition.
• The court must ask the defendant if he or she requires an extension of the 15 days in
order to pay the fine.
• Remember that if a defendant does not show up at his trial. He will be given only 15 days
to pay the fine since he was not present in court to be asked if he needed more time.
• When the defendant receives his “notice of fine and due date” in the mail, he receives
instructions as to how to apply for an extension of time to pay the fine.
• Note that fine option programs are only available in certain jurisdictions in Ontario.

Collecting the Money

• Section 68 permits civil enforcement of fines. The Municipality may choose to “farm
out” fine collections to a private agency.
• The city can sue the people to pay the fine.
• The city of Hamilton employs its own collection staff which is associated with the POA
administration.
• Failure to pay certain fines may lead to cancellation of a driver’s license. Etc.
• In addition the court may order a warrant and you can be arrested
• Governments don’t want to arrest you because it costs money. They want you to pay.
They will give you a long time to pay.

Probation
• Under part 3 the court may suspend sentence and direct the defendant to complete a term
of probation with various conditions, having regard to:
- Age
- Nature of offence
- Circumstances surrounding the commission of the offence
• Statutory conditions include that the def. cannot commit the same offence or any related
or similar offence.
• Section 72 (4) Allows a period of probation up to 2 years.
• A trial justice has the authority to impose probation in the absence of the defendant.

Breach of Probation
 • Punishable under section 65
• Can breach the statutory conditions of probation by:
• Committing the same or similar offence
• Committing an offence under federal or provincial statute that involves imprisonment.
• Upon conviction for breach under Section 75 the court may impose a fine of up to $1000
or imprisonment of not more than 30 days or both
• You will never get a probation again if you breach the probation.

Submissions on Sentence
• Both prosecution and defense have an opportunity to make final submissions. The court
cannot deny this right
• When making submissions we consider both general deterrence and special deterrence
- General deterrence:
How prevalent is the offence
What social interests are at stake
What is the normal range of sentence
What sentence would likely deter others
- Specific deterrence:
Why the offence was committee
Was it a repeat offence
What will prevent it from happening again
Will the sentence effect his or her dependants?

Defence:
Due Diligence and reasonable mistake of fact
Due Diligence
• The most common defense to any charge is due diligence. Not available on Absolute
liability charges.
• The defendant must prove on a balance of probabilities that he did everything to avoid
committing the offence but that it happened anyway.
• The test is “what would a reasonable and prudent driver have done in the circumstances.”
• If he has done everything properly what purpose is there in punishing his behavior?
• Delegation of duty: A person may delegate responsibility for fulfilling some duty on a
driver to another person.eg. Secretary did not pay fines. And defendant suspended.

Mistake of Fact
• Mistake of Fact: eg. Driving under suspension while reasonably believing your license is
not suspended. The mistake does not have to be tied directly to an element of the offense.
 • Any mistake of fact that would have rendered the actions of the driver innocent will
satisfy the defense.

Mistake of Law:
• An individual is given the wrong law by a court clerk or city clerk and believes it to be
true. Eg. Building code.
• Getting the wrong advise from duty counsel is not a mistake of law, as duty counsel is
not a government official.
• Necessity: Must be in immediate peril
• Situation not subsiding
• Any reasonable person would have acted the same.
• No reasonable alternative to the defendant
• Def. did not create the immediate peril.

Officially Induced Error

• If an individual is given wrong advice or wrong information about a situation eg. “Can I
fish here”, Can I store chemicals here” etc.
• If an individual acts on the wrong information then that person is contravening the
regulatory scheme under a mistake of law.
• This injustice could bring the administration of justice into disrepute.

Rules for Officially Induced Errors

• Def must become mistaken after his inquiry
• Must get wrong advise from government official
• Official must be one involved in admin. of that law in particular.
• Official must give erroneous advice.
• Erroneous advice must be reasonable
• The error must arise due to erroneous advice
• Individual must be innocently misled due to bad advise.
• Error in law must be reasonable
• Ind. Must give accurate information to person from whom he seeks information.

Necessity
• Applies to absolute liability, strict liability or full mens rea cases.
• There are 4 principle limitations of the defense of necessity:
1. Situation of immediate peril
2. Peril not subsiding
3. Test of reasonableness is objective
4. No other reasonable alternative
5. Def. did not create the immediate peril
 R. v. Zwicker:
• The owner had recently purchased the vehicle but had not changed the ownership. On a
charge of owner operate MV without Insurance the court ruled that “common law”
ownership applied as well as if he were the registered owner.

Week 7
POA OVERHEADS 6

Common Offences

Fail to Report Sec. 199

• Under Sec. 199 a driver is required to report an accident “forthwith”.
• A significant delay in reporting a minor accident which may be difficult to report may be
excused, while failure to report a more serious accident under the same circumstances
might not be excused.

R.v. Pearson (1960)

• In order to establish a prima facie case the crown must prove that the defendant failed to
make the report “forthwith”
• That means the duty imposed to report “as promptly as is reasonably possible”
• The crown must prove that an earlier report was possible under the circumstances.
• The def. must make the report by the quickest means available to him at the time. R.v.
Marler (1972)

R.v. Bakker(1986)
• Unless the def. is physically prevented from reporting, is ill, is injured, unconscious or
taken to hospital, the report must be made.
• The driver is under an obligation from the time the damages become apparent on a
reasonable examination.
• Note that unless the prosecution establishes a minimum amount of damage ($1000.) the
case is not made out.

Fail to Remain Sec. 200

• Duty of driver is to remain at or immediately return to the scene of a collision, render all
assistance, provide name address etc.
• Fail to remain must take place on a highway and in addition there is no threshold damage
amount of $1000. as in Fail to Report.
• Duties imposed are regardless of where the collision occurs or how much damage.
• The criminal charge contains the additional element of the offence.
 • The actus reas of failing to stop must be accompanied by the mental element of
attempting to escape criminal or civil liability.
• The provincial offence of fail to remain is an included offence to the criminal charge.

The mental Element

• If the collision is obvious, the def. cannot state they were unaware of an accident.
• In R.v. Racimore (1975) the court concluded that without knowledge of the collision, the
actus reus of the offence was involuntary and the court acquitted.
• Therefore if the defendant can raise a doubt as to his knowledge of the accident, he
should be acquitted on the absence of any voluntary actus reus.

Due Diligence
• Under the HTA the prosecutor is not required to prove any positive mental element.
• The def. can escape conviction by demonstrating on a balance of probabilities an
innocent mental state.
• Proven by showing that the defendant exercised all due diligence or that the def.
reasonably believed in a set of facts, which if they had been true, would have made his
or her actions innocent.

“Ear Witness”
Fail to Remain
• R.v. Rees (1981)
• The def. failed to report a collision to a witness who only heard the collision and then
attended the scene. Def. convicted due to failure to report collision to an “ear witness”
• R.v. Hannan (1987) Court held that involvement in an accident is not dependent on
physical contact between vehicles.

Seat Belts
Strict liability
• Exemptions from wearing a belt
• Driver going in reverse.
• Driver holds valid medical certificate waiving requirement of the belt due to physical
characteristic or illness.
• Engaged in work which requires entering and exiting the vehicle frequently, and where
the speed does not exceed 40 kph.

Follow too Closely

• One of the hardest for the pros. to prove.
• R.v. Ousely (1973)
 • The mere fact of a rear end collision will not suffice to make out a prima facie case of
following too closely.
• The collision may have been caused by inattention of the def. or excessive speed.
• Pros. Must prove Speed, Distance, and following.
• Provision provides that you should not follow another vehicle more closely than is
reasonable and prudent, having due regard for the speed of such vehicle and the traffic
and conditions on the highway. These factors are essential elements of the offence.
• Note that the section contemplates that both vehicles are moving at the time. Eg. You
can’t follow a stopped vehicle.

Owner operate MV- no insurance

• If the accused can show that he acted with all due diligence or that he acted on a
mistaken set of facts in which he or she reasonably believed he or she may be excused.
• Eg. Belief that ownership had been changed to another family member is belief in a
mistaken set of facts.
• It is up to the defendant to confirm that insurance exists on the vehicle.
• A non-owner driver must insure a vehicle is insured before driving it.

Ownership
• R.v. Zwicker
• The word owner is not restricted to the registered owner of a vehicle but includes the
common-law owner as well.

Drive Suspended
• Elements of offence are that the defendant must:
a) drive
b) a motor vehicle
c) on a highway
d) with his or her license suspended.
• Strict liability offence.
• Crown not required to prove knowledge of suspension. Open to def. to prove he did not
know or had a belief in a mistaken set of facts which would render him innocent.

Fail to stop for Police Sec. 216

• Section generally authorizes random stops by police
• One of the most serious sections of the HTA
• If “escape by flight” is made out there is a mandatory 5 year license suspension.
• Sec. 216 (3) is willful escape by flight
• Must clearly be a police officer. Unmarked car is ok.it is the officer that must be readily
identifiable.
 • R.v. Ladouceur: Random stop is charter infringement that is justifiable under Sec. 1 of
the charter. Random stop is not in violation of Sec. 8. As long is the stop is made in
accordance with the statutory scheme, there is no infringement.

Turns
• To be legal a turn must be:
• allowable
• Properly signaled
• Properly executed

Chapter 3: Preparation for Trial

3.1 Charge Screening by the Prosecutor

 Upon receipt of a charge in the Crown’s office, determination of ‘reasonable prospect
of conviction’ is required
 If no reasonable prospect of conviction is determined at any time in the proceeding,
the charge is to be discontinued
 If determined, then has to consider if in the public interest to continue

3.2 Preparation by the Defence

3.2.1 Client Interview

 Gather all information relevant to trial and sentencing
 Client calling from police station ensure privacy and collect as much information
as possible from office-in-charge

3.2.2 Documents to Obtain

 Obtain copies of:
 Documents served on client
 All relevant correspondence and notes
 Employment or business records
 Photographs or diagrams

3.2.3 Determine Offence(s) Charged

 Provincial Offences Act is the procedure by which offences
under other provincial Acts are prosecuted
 Refer to charging Act for wording
 Recognize the illegal ‘acts’ alleged

3.2.4 Sample Questions for Client

  Obtain and accurately record background details from your client. (sample
questions pg. 82)
 Obtain and accurately record the details about the allegations. (sample questions
pg. 83)
 When dealing with a corporate defendant determine the following:
 Who are the current directors, officers and shareholders of the corporation
and obtain names, phone numbers and addresses
 Check with the Companies and Personal Property Security Branch of the
Ministry of Consumer and Business Services to obtain the information on
the directors and officers
 Review corporate minute book
 Consider corporate by-laws and resolutions
 Who are the directing minds of the corporation?

3.2.5 Initial Advice

 Advise your client not to communicate with anyone else about the allegations
 Even if your client has an explanation demonstrating innocence, it is better to wait
and present that evidence before an impartial court bound by the rules of
procedural fairness
 Advise your client that anything said now can be used against him/her at trial
 Your client may be required to disclose information
 Have your client provide you with disclosure so that you can
consider precisely what must be disclosed, when and how to
disclose it
 You may want to disclose after receiving full disclosure of the
allegations and evidence against your client
 Be aware of the ‘due diligence’ or ‘reasonable care’ defences

3.2.6 First Appearance

 Arrange for sufficient retainer prior to confirming that you are counsel/agent of
record to the court
 Determine whether the client was properly served

3.3 Further Disclosure for the Defence

3.3.1 Disclosure from the Prosecution

 Initial disclosure must be done as soon as practicable and before trial
 Request for disclosure must be made in writing to the Prosecutor’s Office at the court
location
 The Prosecutor then makes a formal request for disclosure from the police officer in
charge
  Disclosure will be faxed to the defendant or their agent, otherwise it will need to be
picked up in person at the Prosecutor’s Office
 The Crown has the onus of justifying untimely or refusal of disclosure
 Disclosure is a continuing obligation on the Crown
 Disclosure is addressed in R v Stinchcombe

3.3.2 Review Disclosure with Client

 Fully review all disclosure materials from the Crown with your client
 Explanations for certain conduct
 Recall of other witnesses by your client
 Recall other evidence that contradicts what the prosecutor’s witnesses say

3.3.3 Request Further Disclosure

 Confirm you don’t need further disclosure

3.3.4 Application for Further Disclosure

 Bring an application for further disclosure to the court
 Book the return date for your application before trial
 R v Arcand

3.3.5 Discovery from Third Parties

 Is there information available from other governmental departments that is relevant
 Take the necessary steps to obtain this information if you discover there is some

3.3.6 Interview Witnesses

 Gather evidence from all potential witnesses – including the prosecutor’s witnesses
 Follow these steps if you are concerned the witness will change their statement:
 Interview in presence of an investigator or reliable person from your office
 Record the interview – with permission
 Have the witness sign or swear a statement

3.3.7 Expert Witnesses

 An expert will assist in understanding the issues and where to focus your strategy
 Hire an investigator – should be licensed, reliable and willing to testify
 Ensure your expert can be qualified by the court
 R v Mohan

CH 4 Types of Provincial Offences

4.1 Classification Scheme

 Mens rea offences
  Strict liability offences
 Absolute liability offences
 See R v Sault Ste. Marie

4.1.1 Means Rea Offences

 The prosecution must prove beyond a reasonable doubt that the defendant committed the
illegal act(s)
 Must also prove beyond a reasonable doubt that the defendant had a particular state of
mind
 State of mind depends on the offence – intent, knowledge, recklessness
 Can prove in two ways
 Admissions by the defendant as to their state of mind
 Inferences about the state of mind based on the common sense principle that
people normally intend the natural consequences of their actions

4.1.2 Strict Liability Offences

 Prosecution must prove beyond a reasonable doubt that the accused committed the illegal
act(s)
 Defendant must then prove – on a balance of probabilities – that they took reasonable
care not to commit the illegal act(s), made a reasonable mistake of fact which would have
rendered the act(s) lawful

4.1.3 Absolute Liability Offences

 Prosecution must prove beyond a reasonable doubt that the defendant committed the
illegal act(s)
 Defendant is liable whether or not they were at fault

4.2 Classification of Offences

 Provincial offences are presumed to be strict liability offences
 The offence is mens rea, not strict liability if the provincial offence clearly requires proof
of a particular state of mind
 The offence is absolute liability if the provincial offence clearly excludes the defence of
reasonable care and clearly indicates that guilt requires only proof of the illegal act(s)
 HTA has all three types of offences

4.3 Charter Issues in Classifying Offences

 It is a principle of fundamental justice that the morally innocent should not be convicted
 An absolute liability offence, which punish those who did not intend to commit the act,
and even those who take all reasonable precautions not to commit the act, can punish the
morally innocent
4.4 Conclusion
 Research the law on the section of the statute with which your client is charge
 - is it a mens rea offence
 - is it strict liability
 - is it absolute liability

Week 8

Trial Presentation
1. Introduction by Prosecutor / Defence.
2. Pre-Trial motion defence (denied) / Pre-Trial motion prosecution (granted).
3. Arraignment completed by professor
4. Prosecutor qualifies officer’s notes / Defence compare notes to disclosure.
5. Prosecutor exam in chief police / Defence cross exam police
6. Voluntariness Voir dire by defence.
7. Defence non-suit motion (granted or denied)
8. Prosecutor closing and submission / Defence closing and final submissions

POA OVERHEADS 7
Sentencing in Traffic Cases
Introduction
• There can be several “consequences” of a conviction for traffic matters.
• It is your responsibility to your client to insure that he/she understands all of the
consequences, such as penalties, fines, jail, demerit points, suspensions, Insurance hikes
etc. before beginning a trial or entering a guilty plea.
• The range of penalties can reach from a minimum of a suspended sentence to jail time.
• If no specific penalty is stated under the section, then the general penalty applies for part
1 convictions which is a fine between $60 and $500.
• If the offense is committed as a pedestrian or while in a wheelchair, there is no minimum
fine, and the maximum fine is $50.
• See General Penalty section 214 (1) and (2)
• Maximum penalty on part 1 is $1000. And on a guilty plea the eventual fine imposed
cannot exceed that set out as the set fine on the ticket.
• If the prosecutor is going for something higher than the usual set fine, it will be to reflect
the more serious circumstances of the incident, such as school children in the area etc.
• The prosecution may rely on evidence that might not otherwise be admissible, as it is
hearsay when requesting a particular penalty.
• The procedure on sentencing hearings is less formal than at trial.
Submissions on Penalty
• The trial court MUST invite both sides to make submissions on sentencing.
• If not represented, the def. must be given this opportunity.
• A refusal to hear submissions from either side is considered a jurisdictional error. It is a
serious error that a superior court will consider when reviewing the sentence.

Enquiries from the Court

• No one is ordinarily obligated to give personal information to the court.
• It is not unusual for the court to inquire about a def. financial position. The court may
even request that such statements be given under oath.
• The def. cannot be forced to answer these questions but they are usually questions which
might lead to a lower penalty.
• The court cannot draw an adverse inference from an accused’s refusal to answer any
questions.
• If the court orders that a fine be paid forthwith or immediately, it must first be satisfied
that the defendant will be able to pay immediately.
• Lack of an appropriate inquiry, re ones ability to pay is an error in principle that is subject
to review and correction on appeal.

Pre-Sentence Reports
• Generally these reports will outline the educational, employment, family, and financial
background of the offender.
• They will indicate if the def. will suffer some substantial hardship if sentenced to prison.
• Def. can argue against certain findings in the report to make the prosecutor prove those
findings eg. Prior convictions.
• Report should not attempt to set out the facts of the offence as they may be in dispute.
• Report should not recommend a specific sentence.

Sentencing Procedure
• Sections 56-72 POA deal with the imposition and enforcement of sentence setting out:
• Circumstances in which a pre-sentence report might be ordered by the court.
• Right of parties to make submissions on penalty
• Potential fines
• Inquiries as to ability to pay
• Place of pre-trial custody
• Ordering of costs against a def.
• Victim fine Surcharges
• Calculation of sentences
• Enforcement of fines.
 CH 5 Procedural Issues
5.1 Jurisdictional Defences

5.1.1 Timing
• Jurisdictional defences should be raised before your client pleads. In effect, you are
challenging the right of the court to hear the case.

5.1.2 Territorial Jurisdiction

• Proceedings shall be heard in the country or district in which the offence occurred, or in
an adjoining county or district if the court’s sittings are reasonably close to where the
offence occurred – section 29

5.1.3 Limitation Periods

• Limitation period begins to run from the moment that the offence has ceased.
• In the Charging Act: Many provincial statutes contain limitation periods, beyond which
no charge can be laid
• In the POA – Section 76: Where no limitation period is prescribed in the charging Act,
the limitation period is 6 months after the date of the alleged offence
• A limitation may be extended by a justice with the consent of the defendant

5.1.4 Proper Service

Part I: Minor Offences

• An adult defendant must be served with an offence notice or a summons to appear within
30 days of the offence – section 3(3)
• Proof of service may be:
o Admitted by the defendant
o Certified by the provincial offences officer who issued the certificate of offence
o By affidavit of service in the prescribed form – section 3(4-8)

Part II: Parking Offences

• The provincial offences officer may serve the owner of the vehicle in two ways
 Affixing the notice in a conspicuous place at the time of the alleged infract
 Delivering the notice personally to the person having care and control of
the vehicle at the time of the alleged infraction – section 15(4)
• The officer may serve the operator of the vehicle by delivering it to them personally at
the time of the alleged infraction – section 15(5)

Part III: Serious Offences

• Requirements of the Summons
  The defendant is ordered to appear in court by a summons. The summons
shall:
 Be directed to the defendant
 Set out briefly the offence
 Require the defendant to attend court at a time and place stated
therein to attend thereafter as required by the court in order to be
dealt with according to law – section 26(1)
• Service of the Summons before an Information is Laid
• A provincial offences officer may serve a person with a summons in the prescribed form
before an information is laid where:
 An offence is committed
 The officer believes, on reasonable and probable grounds, that the person
whom the officer finds at or near the place where the offence was
committed, committed the offence – section 22
• Additional Means of Service after an Information is Laid
 When not a resident of Ontario, the summons shall be deemed to have
been duly served 7 days after it has been sent by registered mail – section
26(3)
 Service on a corporation may be effected by delivering the summons
personally
 Service of a summons may be proved by statement under oath or
affirmation

5.2 Constitutional Defences

• Under the Constitution Act only the federal government can create criminal offences

5.2.1 Notice of Constitutional Challenge

• Serve a notice of challenge on the Attorney General, the prosecutor’s office, and the court
with proof of service, should you wish to challenge the constitutional validity or
applicability of a provincial law
• Do as soon as is practicable, and no later than 15 days before trial

5.2.2 Void for Vagueness Defence

• This is a principle of fundamental justice that citizens be able to foresee whether their
conduct might be illegal. If an offence is too vague, then it is in effect nothing but
government discretion cloaked in legal terminology.

5.2.3 Charter of Rights Defences

• The Charter of Rights is the supreme law of Canada
• Any law that is inconsistent is of no force and effect – Charter, section 52(1)
Some rights may be impinged by a provincial law:
• Freedom of conscience and religion
• Freedom of thought, belief, opinion and expression
• Freedom of peaceful assembly
• Freedom of association
• Life, liberty and security of the person…
• Equal protection and equal benefit of the law without discrimination

5.3 Sufficiency of the Charges

• An objection to an information or certificate for a defect apparent on its face should be
made before the defendant pleads – section 36(1)
• After the plea, the objection can only be raised by leave of the court – section 36(1)
• The court shall not quash an information or certificate unless an amendment or
particulars would fail to satisfy the ends of justice – section 36(2)
• The term for a correctly completed information is ‘complete and regular on its face’

5.3.1 Common Objections

• The charging document does not clearly identify the alleged wrong, so the defendant can
adequately prepare for full answer and defence
• The charging document should indicate the date, time and place of the offence
• The charging document shall set out each offence in separate counts
• The charging document must comply with the signing rules

5.3.2 Dividing Counts

• Section 33 outlines the powers to dived counts

5.3.3 Amendments
Section 34 outlines the power to amend a charging document
• The broad curative powers under section 34 include the ability to amend at any stage of
the proceeding, including after the Crown closes its case
• A consistent theme in case law relating to amendments is the prejudice that could be
occasioned to a defendant in mounting a defence

5.3.4 Particulars
• The court may order that a particular, further describing any matter relevant to the
proceeding, be furnished to the defendant
• This may be done before or during a trial
• The court must be satisfied that it is necessary for a fair trial – section 25
5.4 Joinder and Severance
5.4.1 The POA
• Section 38 outlines the power for joint or separate trials of defendants or charges
• It states that:
• Before a trial directs that separate counts, informations or certificates by tried together or
that persons who are charged separately be tried together, where it is stratified that the
ends of justice so require
• Before or during the trial direct that separate counts, informations or certificates be tried
separately or that persons who are charged jointly or being tried together be tried
separately, where it is satisfied that the ends of justice so require

5.4.2 Trying Matters Together

Reasons to try matters together:
• Two defendants are charged separately for the same incident.
• Defence may seek to join charges where they can be tried together without prejudice
• Defence wishes to coordinate its witnesses to testify on both matters

5.4.3 Trying Matters Separately

Reasons to try matters separately:
• The defendant may wish to testify regarding one count but not expose them to cross-
examination on another
• Where there are a number of defendants, one defendant might be prejudiced by an
admission against another, which is hearsay and inadmissible against the first
• Where the evidence is complex and there is a danger that the judge will inadvertently
lump together distinct issues to the prejudice of the defence, consider trying the matters
separately

5.5 Res Judicata

• Before pleading, the defendant may argue that the charge being faced is in fact and in law
the same offence for which he has already been tried
• ‘Double jeopardy’ is enshrined in section 11(h) of the Charter
• Any person charged with an offence has the right, if finally acquitted of the offence, not
to be tried for it again and, if finally found guilty and punished for the offence, not to be
tried or punished for it again

5.6 Other Procedural Defences

5.6.1 Abuse of Process

• The court may stay (stop) a prosecution which amounts to an abuse of process
 • The power is derived from the common law, which is preserved by section 80 of the POA
and section 7 of the Charter
• The alleged abuse must be by the prosecution, or other executive branch of the
government

Examples are:
• Successive prosecutions for the same offence amounting to an oppression of the
defendant
• Delay in the laying of charges with the deliberate intention of impairing the
defendant’s ability to make full answer and defence
• Unfair breach of an agreement not to prosecute to the prejudice of the defendant
• Entrapment
• the authorities provide someone with an opportunity to commit an offence without
acting on a reasonable suspicion that they are already engaged in criminal activity or
in the course of a bona fide inquiry
• Having such a reasonable suspicion or acting in the course of a bona fide inquiry,
going beyond providing an opportunity and inducing the commission of an offence
• Prosecution brought solely to collect a civil debt

5.6.2 Officially Induced Error

‘Ignorance of the law is no excuse for committing the offence’ – section 81 POA
• The error must be one of law and not of fact
• The defendant must take reasonable steps to specifically direct the official’s attention to
the situation in which the official’s opinion is being relied upon
• The defendant must provide full disclosure to the official of the surrounding
circumstances
• The defendant has the burden of proving an officially induced error, on a preponderance
of evidence
• The defence of officially induced error is not available where the defendant was unable to
ascertain the existence of a regulation and where there was no erroneous advice given

• The nature of the excuse must meet 6 elements

1. An error of law or of mixed law and fact was made
2. The person who committed the act considered the legal consequences of their
actions
3. The advice obtained came from an appropriate official
4. The advice was reasonable
5. The advice was erroneous
6. The person relied on the advice in committing the act
5.6.3 Inadequate Disclosure
• Prosecutor has an obligation to provide timely disclosure to the defence
• Where the defence has been prejudiced and there are no alternative remedies, the
court may stay the proceedings if there is inadequate disclosure
• Remedy consists of one or more of:
• An order compelling the prosecutor to produce the material sought
• An adjournment to allow the defendant time to prepare the defence
• The recalling of witnesses for further examination
• Costs
• Declare a mistrial
• A stay of proceedings – drastic remedy and reserved for cases where it is not
possible to remedy through reasonable means

5.6.4 De Minimis
• ‘De minimis non curat lex’is Latin for ‘the law does not concern itself with trifles’
• It is rarely successful
• Courts generally defer to the power of the legislature to prescribe conduct which might
otherwise appear trifling

5.6.5 Unreasonable Delay

• Any person charged with an offence has the right to be tried within a reasonable time –
Charter section 11 (b)
• The right extends to corporate accused
• Applies equally to regulatory as to criminal offences
• Relevant time to assess unreasonableness is between the date of charging and the date
of the trial
• The factors in assessing unreasonableness are:
o The length of delay
o The waiver of time periods (whether the defendant clearly and unequivocally
accepted some of the delay with knowledge of their Charter right)
o Reasons for the delay
 Inherent time requirements of the case
 Actions of the defendant
 Actions of the prosecutor
 Limitations on institutional resources
 Prejudice to the defendant
 R v Morin

5.6.6 Proof of By-Laws or Subordinate Legislation

• The basic rule is that judicial notice cannot be taken of municipal by-laws
 • The common law required judicial notice to be taken of public or general statutes but not
of private enactments or subordinate legislation such as regulation
• A copy of a by-law certified by the proper officer of the municipal corporation to be a
true copy of the by-law and under the seal of the municipal corporation is admissible in
evidence under the Evidence Act

5.6.7 Bilingual Signage

• The council of a municipality, which is in a designated area under the French Language
Services Act, may pass a by-law providing that the administration of the municipality
shall be conducted in both English and French, and that all or specified municipal
services to the public shall be made available in both languages

CH 6 Mens Rea Offences

6.1 Burden of Proof
• The prosecution must prove beyond a reasonable doubt that the defendant committed the
illegal act(s)
• The prosecution must also prove beyond a reasonable doubt that the defendant had a
particular state of mind
• The state of mind depends on the offence
o Intent
o Knowledge
o Recklessness
• The prosecution can prove the defendant’s state of mind in 2 ways:
o Admissions by the defendant as to their state of mind
o Inferences of the defendant’s state of mind based on the common sense principle
that people normally intend the natural consequences of their actions

6.2 The State of Mind

• ‘intention’ may be an intention to commit particular acts, or an intention to bring about
certain results
• ‘knowledge’ may refer to knowledge of fairly limited circumstances or actions, or
knowledge of the effect of those actions
• ‘recklessness’ means an awareness that there is a risk of certain behavior and then acting
in an unacceptable disregard to that risk

6.3 Parties to the Offence

• Covered in more detail in Chapter 7 under heading 7.4

6.4 Defences to the Elements of the Offence

6.4.1 Defences to the Act Element
• Is there any reasonable doubt, on the prosecutor’s evidence, that your client voluntarily
committed the act?

6.4.2 Defences to the Mental Element

• Will the justice likely conclude, beyond a reasonable doubt, that your client had the
particular state of mind, based on:
• Your client’s admissions
• Inferences that your client intended the natural consequences of their act(s)
• If the prosecutor has strong proof of the act and mental elements, what evidence can you
call for the defence? Will it raise a reasonable doubt?

6.5 Other Defences

• Every rule and principle of the common law, that renders any circumstance a justification
or excuse for an act or a defence to a charge continues in force and applies in respect of
offences, except in so far as they are altered by or inconsistent with this or any other Act.
• Section 80 POA

6.5.1 Mistake of Fact

• If the defendant honestly believed in certain facts which, if true, would have rendered
their actions legal, then the defendant did not intend to commit the offence. The
defendant has rebutted the presumption of intending the natural consequences of their
actions
• Wilful blindness ‘suspected the fact, realized its probability, but refrained from obtaining
the final confirmation because they wanted to be able to deny knowledge’
• Must be honest but not necessarily reasonable
• If a ‘reasonable person’ in the same situation would not have been mistaken, the justice
may not believe your client
• If your client shut their mind to the truth, can be found to be wilfully blind, and may be
sufficient to proof of mens rea

6.5 Other Defences

• ‘Ignorance of the law by a person who commits an offence is not an excuse for
committing the offence’
• Section 81

6.5.2 Intoxication
• Determine exactly what state of mind is required for the offence
 • Distinguish between a client who, because of an intoxicant, did not know what they were
doing at the time from a client who, because of a hangover, knew but cannot now
remember what they did at the time

6.5.3 Additional Defences

• Involuntariness
• Causation
• Necessity

6.6 Corporate Responsibility

• The requirements which apply to finding a corporation liable for a regulatory offence,
which is mens rea in nature, are the same for a finding of liability for the corporation for
a mens rea criminal offence

Week 9
POA OVERHEADS 8
Various Sections of the POA
• Section 28 states that Part 4 of the POA applies to all proceedings under the Act,
regardless of whether the proceedings were commenced by a certificate of offence or
information
• Section 45 of the POA provides that the defendant must be arraigned and a plea entered.
R.v. Osgood Sand & Gravel
• May be a curable defect depending on circumstances.

Non Appearance
• Under Sec. 9.1, when a def. fails to appear after requesting a trial for a part 1 certificate
of offence, the JP will convict and endorse the cert. “Deemed not to dispute”
• For a part 3 Information, the court has a choice to issue a summons, an arrest warrant, or
proceed with a trial in the absence of the accused. (TIA) (trial in absentia)

Agreed Statement of Facts

• On a guilty plea, the prosecutor will read into the record an “agreed statement of facts.”
The court will inquire whether or not the facts as alleged are “substantially correct”.
• This takes place after the JP has made a “plea comprehension inquiry” to insure that
the def. is aware of the consequences of a conviction for the charges he is facing.

Section 57
Submissions as to sentence
 • Pursuant to sec. 57, the court will entertain submissions, first from the prosecutor then
from the defendant concerning sentencing.
• If however the def. pleads not guilty, or the court enters a not guilty plea on behalf of the
defendant, a trial ensues as required under Section 46 of the POA. This section also states
that a def. has the right to make a full answer and defence.
• A trial justice is entitled to question witnesses to clarify ambiguities or a vague answer
from a witness, or to explore a relevant area that has been omitted.
• Any such questions should be made after the examination in chief or cross examination
has been completed.
• JP can also raise an issue and invite submissions in certain circumstances to protect the
integrity of the judicial process.

Exclusion of Witnesses
• Before the trial begins, it is wise to ask the JP for an order excluding witnesses. This is to
prevent witnesses from hearing each other give evidence.
• The prosecutor may request that the officer in charge be permitted to stay in court but the
defense can insist he leaves.

Motion of Non-suit
• If the def. feels that the pros. has not presented a “prima facie” case –that is, that the pros.
has not tendered evidence on each of the elements of the offence that must be proved, the
defendant may make a motion of non-suit.
• The prosecutor then must argue that there has been some evidence lead on each element.

Statutory Declarations and Certificates Continued

• Other acts that permit sworn documents to replace live witnesses in trial are:
• The endangered species Act 2007
• The police services Act
• The collection agencies Act
• Real Estate and business brokers Act
• Fish and Wildlife conservation Act
• Retail Sales Act
• Employment Standards Act
• Dog Owners liability Act. (vet certificate dog is a pit bull)

Non-attendance of Officer
• Section 49 93) provides that the court shall not adjourn the trial for the purpose of having
the officer attend, unless the interests of justice so require.
• If the defendant is in any way prejudiced in his or her defence to the charge, the range of
remedies, including adjournment or a stay of proceedings, must be considered.
 • However a dismissal of the charge solely on the basis of the non-attendance of the officer
constitutes an error.

Red light Cameras-Certificate Evidence.

• There must be some indication by way of affidavit or other evidence, or in the
submissions or undertakings of counsel, that there may be a material irregularity in the
certified evidence, or that there is some proposed defence evidence that could raise a
reasonable doubt.
• Eg. Police officer or construction flagman waived defendant through red light but was not
caught in the photos.
• This is a legitimate basis for examining the officer who developed the photos.

Other certificate Evidence

• Section 31 (2) of education act allows for cert. of the principal re school attendance.
• Section 13 (2) of the CAIA allows for a statutory declaration of an employee of an
insurer to be admissible as proof of no insurance coverage.
• Section 2 of the Human Rights Code allows for a copy of a document certified by a
person to be a true copy.

Disclosure
• The best time to request disclosure is immediately. It may not be ready but you count that
as your First Request.
• Section 46 (2) of the POA codifies Sections 7 and 11 d of the Charter.
• This is the right to make a full answer and defence. Eg. R.v. Stinchcombe.
• Whether disclosure is provided by the police or by the prosecutor, the enforcement
officer is responsible for ensuring that all material or knowledge gained through
investigation is made known to the prosecutor.
• 1. The prosecutor needs full knowledge of the facts in order to assess it properly.
• 2. The Prosecutor must be able to meet the disclosure provision.

Witness List
• It is not part of the disclosure obligation to provide a witness list.
• Calling a particular witness falls within the gambit of prosecutorial discretion.
• There is also no obligation to provide “will-say” statements of police officers or of
witnesses that the crown does not intend to call.
• Providing that: Notes, statements, or other relevant info must have already been disclosed

Speeding Discl.
• Disclosure on speeding charges must include the manufacturers testing procedure.
• It does not include the entire operators’ manual.
 • Disclosure includes any evidence that may exonerate the accused as well as convict him.
• Disclosure of all statements made by witnesses during an investigation whether or not
they are favorable to the prosecution or the defense.
• See R.v. Zack [1999] R.v. Bailey (2005)
• If a matter is not in the officer’s notes it goes to weight not admissibility.

Disclosure Cont.
• Disclosure in a part 1 matter consists of the certificate of the officer and his notebook
notes.
• If the notes are not legible and you cannot understand them then that is not meaningful
disclosure.
• You have the right to ask for the notes to be typed and to have any of the officers
abbreviations typed out in full so there is no misunderstanding.

Chapter 7: Strict Liability Offences

7.1 Burden of Proof
 The prosecution must prove beyond a reasonable doubt that the defendant committed the
illegal act(s)
 The defendant must then prove, on a balance of probabilities, that:
 They took reasonable care not to commit the illegal act(s)
 They made a reasonable mistake of fact which, if true, would have rendered the
act(s) lawful
 A mistake of fact must be reasonable.
 The defendant must establish that the mistake of fact was not only an honest one, but that
there were reasonable grounds for it

7.2 Considerations for Reasonable Care

7.2.1 Alternatives
 The defendant must establish, on a balance of probabilities, that there was no reasonable
alternative to committing the offence
 One alternative is to do nothing. If an activity cannot be carried on legally, then it should
not be carried on at all – economic necessity is not a defence
 Some regulations provide that the rules can be deviated from if equivalent or higher
standards are flowed.

7.2.2 Likelihood and Gravity of Harm

 The greater the potential for serious injury, the greater the care required
 In many businesses, experts make on-going assessments of the probability of minor and
serious injuries in order to take special precautions where appropriate
  ‘Due diligence in a traffic offence is a modified objective test – one should appreciate
the risk of other driver’s speeding, but not necessarily grossly speeding’

7.2.3 Degree of Skill Expected

Staff must be professionally trained, and in some cases, supervised

7.2.4 Inspections and Compliance Programs

Random inspections and testings are the best means to ensure compliance with regulations and
policies

7.2.5 Equipment and Technology

Reasonable care requires adequate technology and regular maintenance

7.2.6 Costs of Prevention

 If an activity cannot be carried on legally, then it should not be carried on at all.
 If the defendant reasonable assesses the possibility of mistake as very unlikely, and
reasonably assesses the cost of prevention extremely high, then the standard of care set
out in the legislation may have been met

7.2.7 Warnings
 Once it is known that an existing system fails to prevent an offence, the reasonable
person implements a new system

7.2.8 Start-Up Problems

 Reasonable care requires investigation prior to starting up a business

7.2.9 Evidence of Due Diligence

 In a strict liability offence, reasonableness should not be confused with the issue of
recklessness or wilful blindness as it impacts upon a mens rea offence, which the Crown
must disprove beyond a reasonable doubt.
 The issue of reasonableness and due diligence has to be proved by the defendant on a
balance of probabilities.

7.2.10 After-the-fact Compliance

7.3 Corporate Responsibility

 The test for control is a factual one. It is based on an assessment of the defendant’s
position – if the defendant can control the activity, then it should take reasonable care
 A lender, landlord, or business partner may also be in a position to control illegal activity
– if they can, they should take reasonable care
  If a ‘directing mind’ of a corporation commits an offence, then the offence is ‘identified’
with the corporation
 ‘directing mind’ – those who govern or control the activities of the corporation

7.4 Parties to an Offence

There are a number of ways a defendant can be liable for illegal act:
 Defendant actually commits the offence – section 77(1)(a)
 Defendant formed a common intention with another person to carry out an unlawful
purpose, and the defendant knew (or ought to have known) that a probable consequence
of the unlawful purpose was the commission of the offence – section 77(2)
 The defendant aids or abets another to commit the offence.
 ‘aid’ – to do or omit to do anything to facilitate or assist an offence
 ‘abet’ – to instigate or encourage an offence
 The defendant counsels or procures another to be a party to an offence, even if the
offence was committed in a way different from that which was counselled or procured

7. 5 Evidentiary Issues
7.5.1 Timing of Evidence
 The prosecution cannot ‘split’ its case. In its case-in-chief, the prosecutor must adduce all
evidence rebutting any defence reasonably anticipated – including the defence of
reasonable care
 The defence’s cross-examination of the prosecution witnesses will usually indicate
whether reasonable care is in issue
 Only where new and significantly important issues are raised for the first time in the
case for the defence, will the prosecutor be permitted to call rebuttal evidence

7.5.2 Similar Acts before the Incident

 Bad character or similar fact evidence is inadmissible in criminal and regulatory
proceedings to show a disposition to commit the offence
 The defence is reasonable care, similar facts may be admitted to show that the defendant
was warned in the past and failed to exercise reasonable care

7.5.3 Acts after Being Charged

Two policy reasons not to admit the evidence
 Extra care taken after being charged may imply that the defendant should have taken the
same care before the incident
 If extra care after being charged is used against defendants, then there is a disincentive to
taking extra care – which is contrary to public policy

CH 8 Absolute Liability Offences

8.1 Burden of Proof
The prosecution must prove beyond a reasonable doubt that the defendant committed the illegal
act(s)
The defendant is liable whether or not they were at fault

8.2 Charter Issues

Any absolute liability with the possibility of imprisonment is contrary to section 7 of the
Charter, and unless saved as a reasonable limit under section 1, is of no force or effect by section
52(1) of the Charter

8.5 Common Law Defences – Generally

Every rule and principle of common law continue to be in force as they apply to any justification,
excuse or defence to a charge – Section 80 POA

8.6 Involuntariness Defence

The illegal act(s) must be voluntary and within the control of the defendant

8.7 Causation Defence

 Crown must prove beyond a reasonable doubt that the defendant caused the illegal act(s)
 Where the Crown fails to prove the actus reus or the ‘physical action’ element of the
offence, the defendant is entitled to be found not guilty
 Causation is the relationship between the defendant and the illegal act(s) which resulted
 It is not necessary to prove that the defendant was the sole cause of the illegal act(s)
 It is sufficient that the defendant contributed to the illegal act(s) and that the defendant’s
contribution was outside the ‘de minimis’ range

8.8 Necessity Defence

 The defence of necessity needs the these elements to be present:
 Must be an imminent risk, such that the defendant must act to avoid an immediate
peril
 Must be no reasonable legal alternative to the course of action taken by the
defendant
 Harm inflicted by the defendant must be less than the harm avoided
 Emergency must not be reasonably foreseeable
 The defence provides some evidence of an emergency, then the Crown must
prove beyond a reasonable doubt that the necessity excuse does not apply
 Imminent peril and no reasonable legal alternative are evaluated on the ‘modified
objective standard’- an objective standard that takes into account the situation and
characteristics of the particular defendant
 Proportionality must be measured on an objective standard – community
standards
 Chapter 10: Trials
10.1 Procedure
10.1.1 Appearance for Trial
 The defendant’s appearance depends on whether it is a Part I, Part II, or Part III
 The court retains jurisdiction to proceed by mailing out a fresh notice if the court is
closed on the trial date
 The clerk of the court does not have jurisdiction to adjourn proceedings on account of the
absence of the justice of the peace
Part 1: Certificate of Offence
 If a summons is served, the defendant must appear for trial
 If an offence notice is served, the defendant may plead:
 Guilty in writing with full payment – Section 8(1)
 Guilty ‘with representations’ – Section 7(1)
 Not guilty and appear for trail – Section 5(1)
 Dispute the charge in writing, if the defendant lives outside a designated
jurisdiction where the charges were laid – Section 6(1)
 If none of these are done plead within 15 days, or the defendant fails to appear,
the defendant is deemed not to dispute and can be convicted
Part II: Certificate of Parking Infraction
 Defendant has two options
 Pay the fine out-of-court
 Appear for trial by indicating so on the parking infraction notice
Part III: Information
 Defendant has to appear for a trial

10.1.2 Manner of Defendant Appearing for Trial

 An adult defendant may either attend personally or have a lawyer or agent attend –
Section 50(1)
 A corporation must have a lawyer or agent attend – Section 50(2)
 Any defendant may be represented by a lawyer or agent – Section 82
 Any agent who is not a lawyer may be barred from presenting a defendant, if the court
finds that the agent is not competent or does not understand and comply with the ethical
duties to the court – Section 50(3)

10.1.3 Failure of Defendant to Appear for Trial

 When the defendant fails to appear for trial, and the prosecution proves that procedures
for notification were followed, the court may choose from these alternatives – Section
54(1) :
 Proceed to hear and determine the case in absence of the defendant
 Adjourn the hearing and issue a summons to appear or a warrant in the prescribed
form for the arrest of the defendant
  Choose again from the above, if the defendant does not appear in response to the
summons or warrant on the date to which the hearing is adjourned – section 54(2)
Section 54 does not apply to Part I or Part II where the defendant gave a notice of intention to
appear for trial and then failed to appear. They are deemed not to dispute the charges and
convicted in their absence under sections 9.1 or 18.4

10.1.3 Failure of Defendant to Appear for Trial

a. Compelling the Defendant to Appear for Trial
• The court may order the defendant to attend personally
• The court may issue a summons in the prescribed form, if it deems it necessary to
do so – Section 51
b. Penalty for Failing to Appear
• Where one is lawfully required to attend the hearing and does not, they are guilty
of an offence and upon conviction liable to:
• A fine of not more than $2, 000; or
• Imprisonment for at term of not more than 30 day; or
• Both – Section 42(1)
c. Excluding the Defendant From Trial
• The court may remove the defendant if they interrupt the proceeding to the extent
that there attendance is not feasible
• During the trial of an issue as to whether the defendant is, because of mental
disorder, unable to conduct their defence, the court is satisfied that failure to
exclude the defendant might adversely affect their mental health – Section 52

10.1.4 Failure of the Prosecutor to Appear for Trial

 Where the defendant appears for a hearing and the prosecutor does not, the court may:
 Dismiss the charge; or
 Adjourn the hearing to another time – Section 53(1)

10.1.5 Ensuring the Appearance of Witnesses

a. By Summons
 Before trial, you should appear before a justice to show why your witnesses
should be summoned for trial
 If you expect your witnesses to appear without a summons, consider summoning
them anyway. They can use the summons as proof to their employer for being
absent from work.
 Should they become ill or for some reason not appear at trial, you will more likely
succeed in a request for an adjournment if your witnesses were summoned,
because the presiding justice cannot fault you for not being prepared to proceed.
  The test that the justice will apply before granting a summons to a witness is
found in Section 39
 The summons shall be served by a provincial offences officer – Section 26
 The witness shall attend to give evidence at the proceeding, and re-attend if the
proceeding is adjourned – section 39(4)
b. Arrest of a Witness – Section 40
 The judge may issue a warrant for the arrest of the witness where a judge is
satisfied upon sworn evidence that:
 The witness can give material evidence that is necessary; and
– The witness will not attend if summoned;
– The witness is evading service of the summons; or
– The witness was served but failed to attend court
c. A Witness who is in Jail – Section 41
 Prepare an order in the prescribed form, with a supporting affidavit indicating that
they are a material witness, and indicate the jail and estimated release date for the
witness
 Serve a copy of the judge’s order on the superintendent of the jail at least one
week before trial, so that the jail can make the necessary transportation
arrangements

10.1.6 Adjournments – Section 49

 The court may adjourn a trial or hearing
 Where the defendant is in custody, the adjournment may not be longer than 8 days
without the consent of the defendant
 The trial or hearing may be resumed before the expiration of the period with the consent
of the defendant and prosecutor
 Where the trial was commenced under Part I or Part II, the court shall not adjourn to
allow the provincial offences officer who completed the certificate to attend to give
evidence, unless the court is satisfied that the interests of justice require it
 Where the Crown requested an adjournment of the trial, and the defendants had agreed to
the adjournment, the justice of the peace has discretion to grant the adjournment in the
absence of the defendants.
 It is a violation of section 7 of the Charter to refuse the adjournment, and convict the
defendants.
 R v Bednis

10.1.7 Mental Capacity of the Defendant to Conduct a Trial – Section 44

 Where the court has reason to believe that the defendant suffers from a mental disorder,
the issue of the defendant’s ability to conduct a defence may be tried
 If the defendant is unable to conduct a defence, the proceedings are suspended
 Test is similar to one found under Criminal Code
  The party raising the issue must prove that the accused is unfit to stand trial on a
balance of probabilities
 The accused is fit to stand trial, provided the accused understands the nature or
object of the proceedings, understands the possible consequences, and can
communicate with counsel
 The accused must be capable of recounting the necessary facts to his lawyer, but
they need not be capable of acting in their own best interests

10.1.8 Entering the Plea

 After preliminary motions are decided, the defendant is informed of the substance of the
charges and must plead guilty or not guilty – Section 45(1)
 If guilty plea, the court may accept the plea and convict – Section 45(2)
 The defendant is unrepresented and may not understand the process, the court can
wait for the defendant to admit the essential facts alleged by the prosecutor before
convicting the defendant
 If not guilty plea to the offence but guilty to any other offence, whether or not it is
an included offence, the court may, with consent of the prosecutor, accept the plea
and amend the information or substitute the offence to which the defendant pleads
guilty, accordingly – Section 45(4)
 If the defendant refuses to plead or does not answer directly, the court will enter a plea of
not guilty
 To be valid, a guilty plea must be voluntary and unequivocal, and the defendant has to
understand the nature of the charges

10.1.9 Trials Where the Defendant Does Appear – Section 46

 The defendant has the following procedural rights
 The defendant is entitled to make full answer and defence
 The prosecutor or defendant, as the case may be, may examine or cross-
examine witnesses
 The court may receive and act upon any facts agreed upon by the
defendant and prosecutor without proof or evidence
 The defendant is not a compellable witness for the prosecution

10.1.10 Trials Where the Defendant Does Not Appear – Section 54

 A not guilty plea is entered and the prosecutor must prove its case
 An ex parte trial is still a trial, with all its attendant burdens of proof,
formalities and evidentiary requirements
 The prosecutor must act fairly and adduce all relevant evidence, both
indicative of guilt and innocence
  The defendant only forfeits the right to be present, to hear and test by
cross-examination the evidence of the prosecution witnesses, and to make
full answer and defence

10.1.11 Included Offences – Section 55

 An included offence is an additional offence to the main charge
 If the included offence is proved, the defendant may be convicted although the
whole offence charged is not proved

10.1.12 Excluding the Public or Witnesses – Section 52(2)

 The court may exclude the public or any member of the public from the
hearing where the court believes it is necessary to:
 Maintain order in the courtroom
 Protect the reputation of a minor
 Remove an influence that might affect the testimony of a witness

10.1.13 Publication Bans

 In order to protect the reputation of a minor, the court may make an order
prohibiting the publication or broadcast of:
 The identity of the minor
 The evidence or any part of the evidence taken at the hearing
 The identity of a young person in connection with an offence cannot be
published, with some exceptions – section 99
 Consider the relationship between these sections and the Charter section
2(b) right of ‘freedom of the press and other media of commination’
10.2 Evidence
10.2.1 Notices Required Under the Evidence Act
 Some examples of Notices under the EA are:
 Seven days notice for business records – EA Section 35(3)
 Ten days notice for a medical report – EA Section 52(2)
 Ten days notice for registered land document – EA Section 53(3)
 Ten days notice for original of telegram, letter, shipping bill, bill of lading,
delivery order, receipt, account or other written instrument used in business or
other transactions – EA Section 55(1)

10.2.2 Documents
 Some examples of documentary rules under the Evidence Act
 Certified official records – POA Section 47(2)
 Certified copies of public books or documents – EA Section 32
 Copies of bank records made in the usual and ordinary course of business
– EA Section 33
10.2.3 Number of Experts
No more than 3 expert witnesses can be called by either party without leave – EA Section 12

10.2.4 Hearsay
Any written, oral or gestured statement by someone who is not testifying at trial to prove the
truth of the statement is ‘hearsay’ and generally inadmissible

10.2.5 Credibility Evidence

The credibility of a witness is affected by a number of factors, including:
 Mental or physical disabilities affecting perception, or the capacity to tell the truth
 Bias or partiality towards the cases
 Criminal record
 Discreditable acts or associations

10.2.6 Challenging an Officer’s Evidence Part I and Part II offences

 Part I offences proceeded by way of a notice of offence
 Intent to challenge must be indicated in the notice sent to the court
 If indicated the officer will be notified to attend trial
 Part I – Section 5.2
 On re-opening – Section 11(3-4)

10.2.7 Compellability of the Defendant

The defendant is protected from being compelled to testify – Section 46(5) POA and Section
11(c) Charter

10.2.8 Proving an Exception – Section 47(3)

 The burden of proving an exception is on the defendant, the prosecutor is not
required to prove it does not exist
 Proof is on a balance of probabilities
10.2.9 Commission evidence – Section 43
 Upon motion by the defendant or prosecutor, a judge may order a
commissioner to take evidence from a witness who:
 Is outside of Ontario; or
 Is unlikely to be able to attend trial because of an illness, physical
disability, or other good cause

10.2.10 Unreasonable Search and Seizure and Inspections

 A justice may issue search warrants on reasonable grounds – Section 158
 Other provincial Acts provide for ‘inspections’ without any evidence of wrong-
doing
  Courts have held that some regulated activities have lower expectations of privacy
– Page 247
 The law of search and seizure is complex and should be carefully researched
before trial
 Carefully review the powers of inspection and any legal duties on your client to
co-operate with the authorities

10.2.11 Right to Counsel

 A defendant who is arrested or detained must be informed, without delay, of the
following:
 The reasons for the arrest or detention
 That they are entitled to speak to a lawyer without delay
 Information about legal aid and any available duty counsel hotline
 Right to counsel is to be explained should the defendant not understand
 If defendant wants to speak to a lawyer they should be given reasonable
opportunity to do so in private
 Law regarding right to counsel is complex and should be carefully
researched before trial
 Charter section 10(b) ensures that detainees are sufficiently informed of
their jeopardy, right to counsel, and reasonable opportunity to exercise that
right

10.2.12 Voluntariness/Right to Silence

 Before the statement(s) made by a defendant can be entered into evidence by the
prosecution they must first prove beyond a reasonable doubt that it was made
voluntarily
 It cannot be made in ‘oppressive circumstances’
 Cannot be made by a defendant without an ‘operating mind’- defendant must
choose to make a statement

10.3 Trial Strategy

10.3.1 Does the Prosecution have a Case?
 Review the prosecution’s anticipated evidence
 Are all the essential elements of the offence provable?
 Are any inferences required?
 Are those inferences reasonable?
 Is any of the evidence inadmissible?
10.3.2 Theory of the Case
 The prosecutor will adduce evidence and present a ‘theory’ or ‘story’ of what
happened. If the story is compelling, then the defence should present a competing
‘theory of the defence’
  Any question or evidence which neither detracts from your opponent’s theory nor
advances your theory should be discarded
10.3.3 Effective Persuasion
 Present your evidence and examinations in a simple and logical order, to quickly advance
your theory of the case. It will be easier for the Justice to follow and remember your
evidence.
 In cross-examination, ask only leading questions so as to control the witness’ answers
 In examination-in-chief, use brief directed questions
 It is too late to be discovering evidence

Week 10
POA OVERHEADS 9
Pre-Trials - Sec. 45.1
JPT (Judicial Pre Trial)
• The prosecutor or the def. or the court, may on its own motion direct that a pre-trial
conference be held between the prosecutor and the defendant (or his agent)
• Purpose: to promote a fair and expeditious trial
• To address matters better decided before the start of the proceedings
• To make arrangements for decisions on those matters.
• Generally speaking, the JP that heard the pre-trial will not hear the actual trial.
• There is agreement that having the same JP hear both would give an appearance of
unfairness to the accused.
• It is not however an error in law for the JP to seize himself absent any prejudice or
objection from counsel.
• The mere fact that the JP heard the pre-trial motions was not a sufficient basis to
disqualify the trial judge or declare a mistrial.
• There is no absoluter prohibition on a JP from hearing both pretrial and trial.

Plea of Guilty
• Section 45 (1)
• A def. may enter a guilty plea any time up to the date of the trial.
• The court is obligated to conduct a “plea comprehension Inquiry”
• The court must be satisfied that:
• The plea is voluntary
• That the def. understands that a GP is an admission of the essential elements of the
offence.
• That the def. understands the nature and consequences of the plea.
• Understands that the court is not bound by any agreement between the Prosecution and
the defence.
 • When pleading guilty to an amended certificate or information (another charge), the def.
no longer has to plead not guilty to the original charge.
• A def. may simply plead guilty to the amended charge.
• In R.v. T.(R.) 1992 the court ruled that the guilty plea must be voluntary, unequivocal
and informed.
• It cannot be qualified, modified or uncertain.
• Charges and facts relied upon by the prosecution should be read to the accused.
• The def. should be given the opportunity to comment.
• Failure to follow the inquiry does not invalidate the guilty plea, unless it results in
genuine prejudice to the accused.
• R.v. Adgey: SCC (1973) the court has the discretion to strike the plea, where the facts
indicate the possibility that the accused is not guilty, or there is no intention to plead
guilty or there is a misapprehension of the facts amounting to guilt.
• The fact that the def. is unhappy with the sentence or that the joint submission was not
accepted by the court is not a basis for the court to strike the plea.

R.v. Dobson
• Appellant convicted when a licensed Paralegal who claimed to be following written
instructions entered a guilty plea on his behalf.
• The def. claimed he had not given those instructions to his paralegal and further that the
legal representation provided fell below a standard of care such that it constituted
ineffective assistance of counsel.
• The court questioned the paralegal’s competence to act as a paralegal.
• She did not have signed and written instructions to enter a guilty plea.
• Boiler plate instructions on a retainer contract do not constitute proper written
instructions.
• Such instructions are not case specific, and there is no duty to ensure that the facts of the
guilty plea are admitted by the client or that the plea is voluntary or even that the client is
aware of the plea.

Civil Consequences
• In R.v. Yam (2004), the court ruled that a lack of understanding of civil consequences of
an admission of guilt in criminal proceedings is not a failure to understand the
“consequences” of a plea within the meaning of a plea comprehension inquiry.
• In R.v. Torabi (2007), the court ruled that persons in authority, including police officers,
have no duty to inform a defendant of the administrative consequences of a plea of guilty
such as a license suspension due to demerit point accumulation.

Brief Summary of Facts upon a Plea

• R.v. Ouansa, (2009)
 • The prosecutor should provide at minimum a brief summary of the facts to establish the
factual underpinning of the matter.
• This is often waived by the JP who will accept the statement of the pros. “facts as alleged
on the certificate or the information.

Chapter 11: Sentencing

11.1 Range of Sentences
11.1.1 under the Charging Act
 The maximum penalty in the charging Act takes precedence over the Maximum penalty
in the POA – Section 61
 Some charging Acts have severe penalties
 Securities Act for misrepresentation of securities information is a fine up to
5millon or imprisonment for five years less a day or both
 Consumer Protect Act under Section 116 is a fine up to 50 thousand or
imprisonment for two years less a day or both
 Occupational Health and Safety Act under Section 66(2) is a fine up to 500
thousand.

11.1.2 Under the POA

 If no maximum punishment is set out in the charging Act, the maximum penalty is a
$5,000 dollar fine for offences proceeded under Part III – Section 61
 If the offence is proceeded under Part I and regardless of the maximum penalty in any
charging Act:
 If the defendant was summoned, the maximum penalty is a $1,000 fine and no
imprisonment – Section 12(1) and
 If the defendant was served with an offence notice, the maximum penalty is a
$1,000 fine and no imprisonment, and there are further limits to any results
following a conviction – Section 12(2)

11.2.1 Reducing Minimum Fines and Imprisonment in Exceptional Circumstances

 Only penalties specifically declared as minimums should be regarded as such – Section
59(1)
 The court may impose a fine that is less than the prescribed minimum or suspend the
sentence where it finds exceptional circumstances exist such that imposing the
minimum would be:
 Unduly oppressive; or
 Otherwise not in the interests of justice – Section 59(2)
 The court may impose a fine of not more than $5,000 in lieu of imprisonment where the
minimum penalty prescribed includes imprisonment – Section 59(3)

11.2.2 Time to Pay a Fine

  A fine becomes due and payable 15 days after its imposition – Section 66(1)
 The court will ask the defendant if they require an extension of the 15 days in order to
pay the fine – Section 66(2)
 Where a fine is imposed in the defendant’s absence, the clerk of the court will give the
defendant:
 Notice of the fine
 Notice of its due date and
 Notice of the defendant’s right to make a motion for an extension of the time for
payment – Section 66(5)
 The defendant may request an extension of the time for payment of the fine, the
court may:
 Make inquiries of the defendant, on oath or affirmation, as the court deems
necessary. The defendant is not to be compelled to answer – Section 66(3)
 May order periodic payments be made unless it finds that the request for
the extension of time is not made in good faith or that it would likely be
used to evade payment – Section 66(4)

11.2.3 Fine Option Program

 The Lieutenant Governor in Council has regulation making authority over programs
permitting the payment of fines by means of credits for work performs – Section 67

11.2.4 Civil Enforcement of Fines

 Under Section 68 are the manners in which a fine can be used as a civil judgment for
collection, and if the fine is not paid within 90 days – Section 69.1 permits the disclosure
of the fine to a consumer reporting agency

11.2.5 Default of Fine

 Failure to pay a fine may lead to cancellation of a provincial permit, licence, registration,
or other privilege – Section 69

11.2.6 Costs
 Upon conviction, the defendant may have to pay various fees, up to a maximum of $100,
which are enforced like a dine – Section 60
 The Provincial Offences Court is restricted in its power to award costs, and does not have
jurisdiction to award legal costs

11.2.7 Surcharge
 A surcharge of a fine is imposed in respect of a conviction for an offence commenced
under Part I or Part III – Section 60.1
 A surcharge is deemed to be a fine for the purpose of enforcing payment – Section
60.1(2)
  The surcharge known as the Victim Fine Surcharge consists of a graduated scale of rates,
depending on the amount of the fine, and is administered after a fine has been imposed –
O. Reg 161/00

11.2.8 Probation
 Where a defendant is convicted of an offence under Part III, the court may suspend
sentence and direct the defendant to complete a term of probation with various
conditions, having regard to the following:
 The age, character and background of the defendant
 The nature of the offence
 The circumstances surrounding its commission – Section 72

11.2.9 Breach of Probation

 Breach of probation is punishable under Section 75
 A defendant may breach the statutory conditions of the probation order in one of
two ways;
 Commit the same or similar offence
 Commit an offence under a provincial or federal statute that is punishable
by imprisonment

11.2.10 Imprisonment
 Pre-sentence reports for any defendant can be ordered under Section 56 and must be
ordered for a youth facing a prison term under Section 100(2)
 The justice may take into account any time already spent in custody by the person in
sentencing them – Section 58
 The term of prison shall, unless otherwise directed, commence on the date taken into
custody, though the court may order custody to commence up to 30 days after sentencing
– Section 63

11.2.11 Restitution
A finding of loss is a necessary precondition to the imposition of a restitution order.

11.3 Submissions on Sentence

 The prosecution and defence shall have an opportunity to make submissions as to an
appropriate sentence – Section 57
 You, as counsel or agent, should make the submissions and generally your client should
remain silent
 Consider the following issues in your submissions:
 How prevalent is the offence in the community?
 What social interests are at stake?
 What is the normal range of sentence?
  What sentence would likely deter others?
 Why did your client commit the offence?
 Was it done before?
 What has and can be done to prevent it from happening again?
 Will the sentence affect his or her dependants, and if so will it decrease the
likelihood of your client repeating the offence?

Chapter 12: Appeals

12.1 Re-Opening a Part I or Part II Conviction
12.1.1 Part I Offences
 In order for a conviction to be struck out, where the defendant was convicted without a
hearing, the defendant must:
 Attend at the court office during regular office hours within 15 days of becoming
aware of the conviction; and
 Appear before a justice requesting that the conviction be struck out = Section
11(1)
 The justice will strike out the conviction if they are satisfied by the affidavit of the
defendant that, through no fault of the defendant :
 The defendant was unable to appear for a hearing; or
 A notice or document relating to the offence was not delivered – Section
11(1)
 The justice will give the defendant and the prosecutor a notice of trial or
proceed under Section 7 where the justice strikes out the conviction –
Section 11(2)

12.2 Appeal Procedure

12.2.1 Part I Appeals
For an adult defendant:
 The defendant or prosecutor may appeal an acquittal, conviction or sentence to the
Ontario Court of Justice – Section 135(1)
 The defendant must pay any fine imposed before filing the notice of appeal, unless
waived by a judge – Section 111
 There is no requirement to order transcripts or file a factum
 The appeal shall be conducted by means of a review and the court may ‘make such
inquiries as are necessary to ensure that the issues are fully and effectively defined’ –
Section 136

12.2.2 Part III Appeals

Procedure and Forum Appeals
 The defendant or prosecutor or the Attorney General may, by way of intervention,
appeal, as to sentence or in order to conduct a defence, from a conviction or
 dismissal or from a finding as to ability, because of mental disorder to any other
order as to costs
 The proceeding is commenced by information under Part III; and
 Where the appeal is from the decision of a justice of the peace, to the
Ontario Court of Justice presided over by a provincial judge; or
 Where the appeal is from the decision of a provincial judge, to the Ontario
Superior Court of Justice – Section 116(1,2)

12.2.3 Appealing a Provincial Offence – Appeal Pointers

Either the defendant or prosecutor may bring an appeal to challenge the decision of the trial court
– the party launching the appeal is called the appellant; the party responding to the appeal is
called the respondent; in rare cases the Crown attorney if not the appellant or respondent may
intervene and participate in the appeal, as may other third parties, such as an organization or
association affected by the decision under appeal, and where permitted to do so such parties to
the appeal are called intervenors.
There are two streams of appeals under the Provincial Offences Act:
 Where the trial proceedings are by certificate of offence under Part I of the Act, the
appeal provisions which govern are the more informal requirements set out under
Sections 135-139
 Where the trial proceedings are by way of information under Part III of the Act, the
appeal provisions which govern are the more formal requirements set out under Sections
116-134
It is therefore very important to first determine whether the decision being appealed from is in
relation to a trial matter under Part I or Part III. Significant differences need to be followed
between the two appeal streams. See page 311 for the differences.

12.3 Reviews to the Ontario Superior Court of Justice

Sections 140-142 of the POA, sections 1-10 of the Habeas Corpus Act and sections 1-11 of the
Judicial Review Procedure Act set out the procedures for invoking extraordinary remedies.
Examples of extraordinary remedies include:
 Certiorari – an order to the inferior court to present its record of the proceedings, before
the Ontario Superior Court of Justice for a review for jurisdictional error(s)
 Prohibition – an order to the inferior court not to exercise or attempt to exercise a power
for which it has no jurisdiction
 Mandamus – an order to the inferior court to do that which it is required by law
 Habeas Corpus – an order reviewing the detention or imprisonment of a person
Extraordinary remedies are not to be brought unless all appeal routes are exhausted – Section
141(3)

Chapter 13: Checklists

13.1 Defending a Provincial Offence
What is the offence charged? How is it worded?
Is it a mens rea, strict liability or absolute liability offence? What must the prosecution prove?
What evidence is admissible? If some evidence is inadmissible, how does that affect the case?
Are there any Charter issues?
What is your client’s story?

The trial:
 It wasn’t me ( prosecution must prove ‘identity’ beyond a reasonable doubt and the
defendant can remain silent)
 I wasn’t there (section 3.2.5 ‘Initial Advice” and the requirement to disclose alibis
evidence before trial)
 I didn’t do it (proof of actus reus)
 I did it, but I didn’t mean to (proof of intent)
 I did it; I was aware of the risk, but I used reasonable care
 I had to do it
 I was told by an official that I could do it
 It was such a trivial incident that the prosecution ought to be stayed

Sentencing:
 Okay, I did it; it wasn’t so trivial; I shouldn’t have done it but I’ve never done it before
 I’ve done it before, but not for a while
 I’ve done it before, consistently and recently, but I’ve started treatment or corrective
measures
 I’ve done it consistently before; I’ve failed to break the cycle; I’m not taking treatment;
but I plead guilty early – I’ve saved the prosecution the expense of a trial
 I wish to remain silent

POA quiz 1 review

1. Absolute Liability (only proof required is actus reas: that the wrongful act happened and
that the defendant caused it to happen.)

2. 8 common law defences - No drunk

3. In a strict liability offence, once the prosecutor proves the actus reas. The burden of
proof reveres to the defendant (reverse onus)
4. Careless is doing what the law requires - people that blame an animal (running in front of
a car, for ex. Deer) - most people will be believed – strict liability
5. In a mens rea charge, the crown has to prove that the defendant intentionally committed
the offence, or was willfully blind to committing the offence of or had a highly
negligence state of mind
6. The Highway Traffic Act describes those enforceable rules that drivers must follow. In
other words, the substance of the law itself
7. The certificate is submitted by the police officer to the court for processing. (must be
within 7 days of giving the ticket)
8. When laying a charge under part 1, the officer has a 30 day statute of limitations
9. Part 3: this section addresses procedure on the most serious charges - no speeding

10. Part 4: Trail and Sentencing, This part addresses issues such as:
1) Jurisdiction
2) Change of venue
3) Stay of proceedings
4) Section 34
5) No limitation

11. The POA has a 6 month limitation period starting from the date that the offence was or
was alleged to have been committed.

12. Part 8: Arrest, Bail and Search Warrants

1) Recognizance
2) Search Warrants
3) Tele-warrants
4) Seizures
5) No bailiff

13. The POA Act has 7 charges

a. Fail to appear
b. Party to an Offence
c. Contempt of Court
d. Yong Person: Someone under the age of 15

14. Mail deemed delivered on the 7th day following the date which it was mailed

15. What makes a ticket incomplete or irregular on its face? Missing charge and or Section #
of the charge

16. Cross Examination - R.v. Zehr (2011) and R.v. Etamadi (2013)

17. R.v. Cassista (2013) This is called OPCA (Organized Pseudo-legal Commercial
Argument).
18. Real Estate counsel of Ontario v. Wang (2013) The trial justice must conduct a plea
comprehension inquiry.

19. R.v. Pynappels (2014) A trial judge should not reject joint submissions for sentencing
made together by both the prosecution and the defence.

20. R.v. Poonia (2014) Evidence may not be admitted unless it is relevant, credible and
trustworthy, and therefore before admitting a statement or other evidence into the record
there is always a necessity to hold a voir dire

21. R.V Huxtable 2012 Introduction of viva voce (spoken) evidence

22. R.v. Mangov v. City of Toronto, at the beginning of the trial, the J.P asked about a
potential resolution

23. This gives the impression of bias towards the defendant.

24. Duties of the prosecutor are: TO TELL THE TRUTH, TO BE FAIR, AND BE A
STRONG ADVOCATE: No kind and understand

25. Trials and procedure: the forth step is examination in chief of first prosecution witness
called by crown (usually the police)

26. 7 COMMON ELEMENTS of every offence - no plate

27. Sec. 136-1: a Disobey stop sign - fail to stop

1) stop sign existed.
2) lines
3) Wheels
4) no weather

POA quiz 2 review

1. Statute of limitations on part 1- 15 days to serve def. and 7 days to serve court
a. Part 1 Certificates
b. When the officer witnesses the offence, he has a choice of stopping the guy and
giving him a ticket, at which time the officer has 7 days to file his copy of the
ticket with the court and the defendant has 15 days to plead not guilty or an early
resolution etc. You can pay it, ask to meet with a prosecutor, or go to trial.
c. If the defendant asks for a trail and then fails to appear on a part 1, that’s where
we get this s. 9.1 under the provincial offences act part 1 "not to dispute"
 d. Section 9.1 When an individual requests a trial on a part 1 certificate and fails to
appear, the Justice of the Peace will deem the defendant “not to dispute” the
charge and shall convict the defendant if the certificate is complete and regular on
its face.
e. On a part 3 fail to appear the prosecutor has the option to have the trail without
you.
f. when a part 3 offender fails to appear at this trial, he loses the ability for a full
answer and defence

2. Def. has 15 days to request trial

3. If def. requests part 1 trial and fails to appear he is deemed not to dispute under Sec. 9.1
of the POA

4. Max fines for part 1 is $1000. Max fine for part 3 is 5000, unless otherwise stated in a
separate act e.g. Securities Act.
a. Maximum penalties are 1000 for part 1
b. Maximum penalties for part 3 are 5,000 unless otherwise stated
c. The Ontario Securities Commission is 5 million. (insider trading)

5. Guilty "with representations" is to address the amount of the penalty.

a. Guilty with representations means they plead guilty but they want to lower the
fine and why, want to talk about the amount of the fine

6. Understand the implications to the prosecutor when there is "no reasonable prospect of a
conviction."
a. When prosecutor looks at the case and cannot get a conviction, they won’t even
try and is called 'no reasonable prospect of conviction' and they withdraw the
charges and explain why on the record.
b. Cannot be questioned. prosecutors are in charge of withdrawing charges and the
justice cannot dispute this decision no matter how serious the charge or how many
people are present, including witnesses

7. Decisions as to how to plea rest with the client.

Client instructions should always be in writing.
a. The final say is with the client, whether or not they have been advised correctly.
b. always have the client sign instructions amendments

8. The prosecutor's job.

a. Not to get a conviction
b. Neither win nor lose
c. To tell the truth, to be fair, to have a strong advocate
d. Can adjust and decrease charges depending on the severity of the crime. (No one
has dead, change from careless to disobey a stop sign)
9. Disclosure: R v Stinchcombe and usual remedy for non-disclosure is an adjournment
a. Disclosure is a continuing responsibility of the crown throughout the trial
process.
b. Section 46(2) of the POA states the defendant is entitled to make a full answer
and defence
c. Disclosure is fundamental and related to the Section 7 Charter right to life, liberty
and freedom of the person.
d. This is where we find the right to make a full answer and defence.

10. R v Sault Ste. Marie...

The third one is Strict Liability

11. State of mind for mens rea offences. (Includes recklessness)

a. prosecutor must prove “causation” or that the defendant committed the illegal
act.
b. Prosecutor must prove that def. had a particular state of mind which depends on
the offence:
c. such as intent, knowledge, or recklessness (willful blindess).
d. Recklessness = lack of regard for the danger or consequences of one's actions
e. Inferences about the defendant’s state of mind based on the common sense
principle that people normally intend the natural consequences of their
actions.

12. What does the pros. have to prove in a strict liability offence?
a. In a strict liability offence, once the prosecutor proves the actus reas (the illegal
act & the causation)
b. The burden of proof reveres to the defendant (reverse onus)
c. It is then up the defendant to prove due diligence on his part
d. In spite of the fact that the defendant did everything possible to avoid committing
the offence, the offence happened anyway
e. The prosecutor must prove guilt beyond a reasonable doubt but the def. must
only prove innocence on a balance of probabilities in this reverse onus
situation.

13. Common law defenses

1) Involuntariness - wrong drug prescription taken in error
2) Automatism - sleep walking
3) Duress - car jacking
4) Necessity - dire emergency with the vehicle as you are driving
5) Insanity - Alzheimer's
6) De minimum non curat lex - matter too minimal or minor to deal with (j walking
– cross the street)
7) Self defence - applicable in criminal assault trails
8) Act of God - tree falls on your car while driving.

i. Drunkenness is not one of them

 ii. For duress and necessity the emergency has to be happening inside the
car.
iii. As an officer of the court, I should not allow the court to mislead itself. If
you know more than the justice you MUST correct them.

14. Absolute liability.

a. You cannot have jail time.
b. The Absolute liability offence only have actus rea, so the defendant don’t have a
defence. So it would be a breach of section 7 of Charter if they put the defendant
to jail.
c. The absolute liability offence is on the contrary to the charter when there is a
custodial sentence.

15. Limitation periods begins to run the day the charge is laid.
a. Officer has 15 days to lay the charge and 7 days to file the copy with the Court.
b. When laying a charge under part 1, the officer has a 30 day statute of
limitations,
c. When laying a charge under part 3 (most serious offences) the officer has 6
months to lay the charge.

16. Where no limitation period is stated it is 6 months from the date of offence.

17. Sec. 109 of Courts of justice Act states court must be notified at least 15 days prior to
trial, a Court must be notified of a Charter challenge at least 15 days prior to trail

18. Service of charter argument / constitutional question goes to AG for Ontario, AG for
Canada, and the court.