Preliminary Matters and Remedies

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 318-371

318

CH AP TER 10

PRELIMINARY M ATTER S

AND R EMEDIES

A number of matters can or must be dealt with prior to the start of

prosecution. First, in some cases, an offence is not dealt with by way of

prosecution at all, but rather through some alternative. Next, a ssuming

that a prosecution is to occur, some administrative and other matters

can be dealt with b efore the trial begin s, either through a pre-trial mo-

tion or a pre-trial conference. Finally, in a case th at will be tried by a

jury, that jury must be selected. All of these issues wil l be dealt with

in this chapter.

A. ALTERNATIVES TO PROSECUTION

In an informal sen se, there has long existed an a lternative to prosecu-

tion in Canada th rough the exercise of discretion by police in not laying

charges in the f‌irst place, or by Crow n prosecutors in not continuing

them.1 Only relatively recently ha s that discretion been more formal-

ized in a system of altern ative measures authorized by statute.

1 Although the genera l view of the legitimacy of e xercising such discret ion has

varied over ti me: see the discussion i n Bruce Archibald, “Prosec utors, Democ-

racy and the Publ ic Interest: Prosecutori al Discretion and Its Lim its in Canada”

(Paper delivered at the X VIth Congress of the Inter national Academy of Com-

parative Law, Bri sbane, Australia, 14–22 July 2002) at 17–22.

Preliminary Matters and Remedies 319

Statutory alternative mea sures to prosecution began in 1985 with

the Young Offenders Act,2 though under that Act they were available only

to young persons. Subsequently in 1995, the provisions of section 4 of

the YOA were adopted into the Criminal Code, thereby creati ng the po-

tential use of altern ative measures for adults as well. The essential t heory

behind these scheme s is that, in certa in cases, the interests of society

might be adequately protected through measures that are less intrusive

to the person alleged to have committed an offence than prosecution. If

the person fails to comply wit h the requirements of the alternative meas-

ures program, however, criminal charges can still be laid.

Section 717 of the Code does not require that an alter native meas-

ures program exi st, but it authorizes the Attorney Gener al of a province

to create such a program. The use of these measures is subject to vari-

ous conditions, in particul ar, the general directive that the use of such

measures can not be inconsistent with the protection of society, and that

the person considering their use is satisf‌ied th at they are appropriate

given “the interests of society and of the victim.”3 Other provisions are

aimed at protecting the interest s of the person who would otherwis e be

the “accused.” In large part, these provis ions are aimed at ensur ing that

alternative measure s are used only in case s that would otherwise h ave

proceeded to prosecution, rather than being used in cases t hat simply

would not have occupied the justice system at all. That is, alternative

measures are intended to be a way of diverting some cases out of the

crimina l justice system, not a way of expanding its scope.

Consistent with th is approach, alternative measures can not be used

unless the prosecutor believes t hat there would be suff‌icient evidence

to proceed with a prosecution and that t he prosecution is not barred

at law in any way.4 The person involved must have been advised of the

right to counsel, must accept responsibility for the act or omission con-

stituting the offence, and must fully and f reely consent to participate.5

Alternative measure s cannot be used where the person denies involve-

ment in the offence or wants a charge dealt wit h in court.6 Further

protection for the individual is provided by the r ule that no admission,

confession, or statement made by a person as a condition of being dealt

with by alternat ive measures is admissible against that person in any

later proceedings.7

2 RSC 1985, c Y-1, enacted as SC 1980–81–82– 83, c 110 [YOA].

3 Se cti on 717(1) (b).

4 Sections 717(1)(f) & (g).

5 Sections 717(1)(c), (d), & (e).

6 Section 717(2).

7 S ecti on 717(1) (3).

CRIMIN AL PROCEDURE320

If a person completes the alternative measures, the court must dis-

miss any charges laid against that person later in respect of the offence.

If charges are later laid against a person who has only partly completed

the alternative measures, a court can still st ay the charges if it is of the

view that “the prosecution of the cha rge would be unfair, having regard

to the circumsta nces and that person’s performance w ith respect to the

altern ative meas ures.”8

In practice, provinces have tended to consider the use of alterna-

tive measures according to various categories of offences. Typically, al-

ternative measure s simply will not be used for serious violent offences,

serious sexual offences, spousal violence, drug traff‌icking, organized

crime, and so on. Many minor offences presumptively will automatic-

ally be referred to altern ative measures, while a group of offences in

the middle continue to depend on prosecutorial discretion. Normally,

this disc retion is to be exercised in accordance with criter ia established

within the provi nce’s prosecution service.9

Alternative measure s programs usua lly ask the person to undertake

community service, personal service for the victim, specialized educa-

tion programs, or counselling, or to write a letter of apology.10 More

ambitious alternatives are a lso available. In Nova Scotia, for example,

relying on the authority of section 717 of the Code and sect ion 4 of the

YOA, the province created a restorative justice program. This program

creates the possibil ity for conferences between the offender, the victim,

supporters of each of those people, and, potentially, other members of

the community or police off‌icers. Supporters of restorative justice argue

that the outcomes of such conferences can ultimately be far more bene-

f‌icial to the offender, the victim, and society a s a whole.11

Subsequently, the YOA was replaced by the Youth Criminal Justice

Act.12 That Act now refers not to “alternative measure s” but to “extra-

judicial measures.” For the most part, the features noted above are

unchanged,13 though they are now classed as “extrajudicial sanctions.”

However, various additional features, other than s anctions, have been

8 Se ction 717(4)(b).

9 See the discus sion in Archibald, above note 1 at 29–30.

10 Ibid at 29.

11 Ibid at 3 4.

12 SC 2002, c 1 [YCJA].

13 Two differences should be noted. S ection 10(2)(d) of the YCJA, ibid, requires not

only that the young p erson be informed of the rig ht to consult with counsel, but

also that t here be a reasonable opportun ity to do so. Further, in s 10(2)(b), al-

though the pers on considering whether to refer must st ill consider the interest s

of society, any explicit re ference to the interest of the vict im has been removed.