Preliminary Matters and Remedies

• Author: Steve Coughlan
• Pages: 418-482

418

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 ssum-

ing that a prosecution is to occur, some admini strative and other mat-

ters can be dealt with before the trial begins, either through a pre-trial

motion or a pre-trial conference. Finally, in a case that w ill be tried by

a jury, that jury must be selected. These is sues will be dealt w ith in

this ch apter.

A. ALTERNATIVES TO PROSECUTION

In an informal sen se, an alternative to prosecution has long ex isted

through the exercise of discretion by police to not lay charges in the

first place, or by Crown prosecutors to not continue them.1 Only rela-

tively recently has that discretion been more formalized i n a system of

alternative measure s authorized by statute.

1 The general view of the le gitimacy of exercisi ng that discretion ha s varied over

time: see the d iscussion in Bruce Arch ibald, “Prosecutors, Democr acy and the

Public Interest : Prosecutorial Disc retion and Its Limits in Ca nada” (Paper deliv-

ered at the XVIt h Congress of the Intern ational Academy of Comparative L aw,

Brisbane, Aus tralia, 14–22 July 2002) at 17–22.

Preliminary Matters and Remedies 419

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 creat ing the poten-

tial use of altern ative measures for adults as well. The essent ial theory

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

measures program, however, crimi nal charges can still be laid.

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

ures program exist, but it authorizes the attorney general of a province

to create such a program, and many provi nces have done so.3 The use

of these measures is subject to various conditions, in particular, the

general directive that the use of such measures cannot be inconsistent

with the protection of society, and that the person consideri ng their

use is satisfied t hat they are appropriate given “the interests of soc iety

and of the victim.”4 Other provisions are aimed at protecting the inter-

ests of the person who would otherw ise be the “accused.” In large part,

these provisions are a imed at ensuring that alternative measures are

used only in case s that would otherwise have proceeded to prosecution,

rather than being u sed in cases that simply would not have occupied

the justice system at all. That is, alter native measures are intended to

be a way of diverting some case s out of the criminal justice system, not

a way of expanding its scope.

Consistent with th is approach, alternative measures cannot be used

unless the prosecutor believes t hat there would be sufficient evidence to

proceed with a prosecution and th at the prosecution is not barred at law

in any way.5 The person involved must have been advised of the right to

counsel, must accept responsibility for the act or omis sion constituting

the offence, and must fully and freely consent to participate.6 Alterna-

tive measures cannot be used where the person denies involvement in

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

3 See Statist ics Canada, “Community Cor rections in Canada” (Stati stics Canada:

20 04):

Prince Edwa rd Island, Nova Scotia, New Bru nswick, Quebec, Man itoba,

Saskatchewa n, Alberta, British C olumbia and the Yukon offer adult altern a-

tive measure s programs without lim itations. The Northwest Territorie s and

Nunavut offer it on a li mited basis, and Newfoundl and and Labrador and

Ontario do not offe r adult alternative measur es programs.

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

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

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

CRIMIN AL PROCEDURE

420

the offence or wants a charge dealt with in court.7 Further protection

for the individual is provided by the rule that no admission, confes-

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

by alternative measure s is admissible again st that person in any later

proceedings.8

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.”9

In practice, provinces have tended to consider the u se of alternative

measures according to var ious categories of offences. Typically, alterna-

tive measures simply will not be used for serious violent offences, ser-

ious sexual offences, spousa l violence, drug trafficki ng, organized crime,

and so on. Many minor offences presumptively will automatically be

referred to alternative mea sures, while a group of offences in the mid-

dle continue to depend on prosecutorial discretion. Normally, this dis-

cretion is to be exercised in accorda nce with criteria established w ithin

the province’s pros ecution serv ice.10

Alternative measure s programs usually ask the person to under-

take community ser vice, personal serv ice for the victim, specialized

education programs, counselling, or to write a letter of apology.11 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 ulti mately be far more

beneficial to the offender, the victim, and society as a whole.12

Subsequently, the YOA was replaced by the Youth Criminal Justice

Act.13 That Act now refers not to “alternative measure s” but to “extra-

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

7 Section 717(2).

8 Sec tio n 717(1)(3).

9 Sec tion 717(4)(b).

10 See the disc ussion in Archibald, above note 1 at 29 –30.

11 Ibid at 29.

12 Ibid at 34.

13 SC 2002, c 1 [YCJA].