In this book, criminal procedure will be taken to mean the body of rules and principles that govern the investigation, prosecution, and adjudication of any offence enacted by Parliament for which an accused person would have a criminal record if found guilty by a court exercising jurisdiction under the Criminal Code.1That is, it governs the procedural aspects relating to indictable and summary conviction offences enacted by Parliament pursuant to its legislative authority in matters of criminal law.
This definition of the subject excludes many procedural aspects of penal law. For example, it does not include law that is enacted for
the enforcement of offences that are created by provincial or territorial legislatures and within their constitutional competence.2Nor does criminal procedure govern all offences enacted by Parliament. The Contraventions Act3was created to provide a non-criminal mechanism for the enforcement of some regulatory offences. Further, there are many penal matters that are largely administrative in nature, such as disciplinary offences within the Armed Forces or the Royal Canadian Mounted Police, and procedural law for the enforcement of those offences is properly considered part of administrative law.4Similarly, although correctional law is related to the administration of criminal justice, its substantive content has more to do with administrative law than with criminal procedure.5This is a formal and conventional statement of the subject of this book. But something more is desirable to introduce the themes that animate this area of the law. Criminal procedure comprises an enormous array of rules and principles in the administration of criminal justice. Many are highly technical and have narrow application. Others, such as "due process," raise fundamental issues of principle and influence virtually all aspects of procedural law. It would be foolhardy to suggest that all of these rules and principles have resulted in a clear and rational system that expresses agreed values.6But it would be foolish not to recognize that both the most picayune rules and the grandest principles are important. For instance, what do we mean by "justice"? Hundreds of years of history attempt to offer an answer of one sort, but section 2 of the Criminal Code offers an answer of an entirely different kind. Taken together, these fiddly details and these fundamental values express the standard of justice in Canadian criminal procedure.
What, then, is criminal procedure about? Martin Friedland opened his study of double jeopardy with this claim: "The history of the rule
against double jeopardy is the history of criminal procedure. No other doctrine is more fundamental or all-pervasive."7The same claim could likely be made, in the same terms, for many other principles of the criminal law, such as habeas corpus, the presumption of innocence, or protection against self-incrimination. It matters little whether such a claim could be made for any one principle because what connects them all, as well as all of the technical rules, is another idea. The history of criminal procedure is the history of rules and principles that constrain or affirm the state’s power to place a person in jeopardy of investigation, prosecution, and punishment for the commission of a criminal offence. No concept is more fundamental or pervasive in criminal procedure than jeopardy in this broad sense.
The interests of individuals can come into conflict with those of the state in many ways. Restricting discussion solely to the criminal realm, there are issues around the circumstances of a person who is suspected, accused, or found guilty of criminal wrongdoing. A person is in jeopardy of prosecution if an investigation produces reasonable grounds to believe that an offence has been committed and the evidence is sufficient to proceed. A person on trial is in jeopardy of conviction and a criminal record if found guilty. A person found guilty is in jeopardy of a sentence, and that sentence might involve not only a criminal record, but also a loss of liberty. In this sense jeopardy exists whenever the state invokes the power of the criminal law against a person suspected or accused of wrongdoing, and it describes the risk of lawful intrusion or deprivation that such a person...