Preliminary Matters and Remedies

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 250-293

Chapter 10

PRELIMINARY MATTERS

AND REMEDIES

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

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

prosecution at all, but rather through some alternative. Next, assuming

that a prosecution is to occur, some adm inistrative and other matters

can be dealt with before the tr ial begins, either t hrough a pre-trial mo-

tion or a pre-trial conference. Finally, in cases that will be tried by a

jury, that jury must be selected. All of these issues will be dealt with in

this chapter.

a. alterNatIveS to proSeCUtIoN

In an inform al sense, there has long existed an alternative to prosecu-

tion in Canada through the exercise of discretion by police in not laying

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

them.1 On ly relatively recently has that discretion been more formal-

ized in a system of altern ative measures authori zed by statute.

1 Though the general v iew of the legitimacy of exerci sing such discretion ha s

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

racy and the P ublic Interest: Prosecutori al Discretion and its Li mits in Canada”

(paper presented at t he XVIth Congress of t he International Academy of Com-

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

250

Prelimi nary Matters and Remed ies 251

Statutory altern ative measure s 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 Crimin al Code, thereby creating the po -

tenti al use of a lternati ve measures for a dults as we ll. The ess ential t heo-

ry behind the se schemes is th at, in cer tain cases, t he interests of society

might be adequately protected through measures that are less intrusive

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

the person fails to comply with the requirements of the alternative mea-

sures program, however, crimina l charges can still be laid.

Section 717 of the Criminal Code does not require that an alterna-

tive measure s program exist, but it authorize s the Attorney General of a

province to create such a program. The use of these mea sures is subject

to various conditions, in particular the general directive that t he use of

such measures cannot be inconsistent with the protection of society, and

that the person considering thei r use is s atisf‌ied that they are appropri-

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

are aimed at protect ing the intere sts of t he person who would otherwise

be the “accused.” In l arge par t, the se provisions are aimed at ensur ing

that alternative measures are only u sed i n ca ses that would other wise

have proceeded to prosecution, rather than being used in cases that sim-

ply wou ld not have o ccupied th e justice system at a ll. That i s, alter native

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

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

Consistent with this approach, alternative measures cannot be used

unless t he prosecutor believes that there would be suff‌icient evidence

to proceed with a prosecution, and that the prosecution is not barred

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

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

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

Alternative measures cannot be used where the person denies involve-

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

protection for the individual is provided by the rule that no admission,

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

with by altern ative measures i s admi ssible against th at person in any

later proceedings.7

2 R.S.C. 1985, c. Y-1, enacted as S.C. 1980–81–82– 83, c. 110 [YOA].

3 Section 717(1)(b).

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

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

6 Section 717(2).

7 Section 717(1)(3).

CRIMIN AL PROCEDURE252

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 stil l stay the charges if it is of the

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

to the circumstances and that person’s performance with respect to the

alternative measure s.”8

In practice, provinces have tended to consider the use of alternative

measures according to various c ategories of offences. Typically, alter-

native measures simply will not be used for serious violent offences,

serious sexual offences, spousal violence, drug traff‌icking, organi zed

crime, and so on. Many minor offences pre sumptively w ill automati-

cally be referred to alternative measures, while a group of offences in

the middle continue to depend on prosecutorial di scretion. Normal ly,

this discretion is to be exercised in accordance with criteria established

within the provi nce’s prosecution service.9

Alternative meas ures programs usually ask the person to undertake

community service, personal ser vice for the victim, spec ialized educa-

tion programs, counselling, or to wr ite a letter of apology.10 More ambi-

tious alternatives are also available. In Nova Scotia, for example, relying

on the authority of section 717 of the Criminal Code and section 4 of the

YOA, the province has created a restorative justice program. This pro-

gram creates the possibility for conferences between the offender, the

victim, supporter s of each of those people, and, potentially, other mem-

bers of the community or police off‌icers. Supporters of restorative justice

argue that the outcomes of such conferences can ultimately be far more

benef‌icial to the offender, the victim, and society as a whole.11

More recently the YOA has been replaced by the Youth Criminal

Justice Act.12 That Act now refers not to “alternative measures” but to

“extrajudicial measures.” For the most part, t he feature s noted above

are unchanged,13 though they are now cl assed as “extrajudicial sanc-

tions.” However, various additional features, other than sanctions, have

8 Section 717(4)(b).

9 See the dis cussion in Archibald, above not e 1 at 29–30.

10 Ibid. at 29.

11 Ibid. at 34.

12 S.C. 2002, c. 1 [YCJA}.

13 Two differences should be noted. S ection 10(2)(d) requires not only that the

young person be in formed of the right to consult w ith counsel, but also that

there be a rea sonable opportunity to do so. Furt her, in s.10(2)(b), although the

person consider ing whether to refer must still c onsider the interests of soc iety,

any explicit refer ence to the interest of the vict im has been removed.