Preliminary Matters and Remedies

• Author: Steve Coughlan
• Pages: 280-327

280

CHAPTER 10

PRELIMINARY MATTERS

AND REMEDIES

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 before the trial begins, either through 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 informal sense, there has long existed an alternative to prosecu-

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

charges in the f‌irst place, or by Crown prosecutors in not continuing

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

ized in a system of alternative measures authorized 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].

Prelimi nary Matters and Remed ies281

Statutory alternative measures 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 creating the

potential use of alternative measures for adults as well. The essential

theory behind these schemes is that, in certain 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 pros-

ecution. If the person fails to comply with the requirements of the al-

ternative measure s program, however, criminal ch arges can still be laid.

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

tive measures program exist, but it authorizes the attorney general of a

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

to various conditions, in particular 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 that they are appropri-

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

are aimed at protecting the interests of the person who would otherwise

be the “accused.” In large part, these provisions are aimed at ensuring

that alternative measures are only used in cases that would otherwise

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

ply 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

criminal justice system, not a way of expanding its scope.

Consistent with th is approach, alternative measures cannot be u sed

unless the 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 advised 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 alternative measures is admissible against that 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].

3Sec tion 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).

CRIMINAL PROCEDURE

282

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

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

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

the alternative measures, a court can still stay 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

alternative measures.”8

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

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

ternative measures 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 alternative 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 province’s prosecution service.9

Alternative measures programs usually ask the person to undertake

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

tion programs, counselling, or to write 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, supporters 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.12That Act now refers not to “alternative measures” but to

“extrajudicial measure s.” 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 sanctions, have been

8Sect ion 717(4)( b).

9 See the discuss ion in Archibald, above note 1 at 29–30.

10 Ibid. at 29.

11 Ibid. at 34.

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

13 Two differences should be noted. Se ction 10(2)(d) requires not only t hat 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.