B. Sources of Pre-trial and Trial Procedure

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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1) Constitution
a) Division of Powers

As noted above, section 91(27) of the Constitution Act, 1867 reserves the power to make laws in relation to "the Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters," to the exclusive legislative jurisdiction of Parliament. Although the effect of this division of power is to make decisions of Parliament by far the most important to criminal procedure, provincial jurisdiction also has a significant impact. For example, the provinces are competent to create superior and provincial courts with jurisdiction within their territorial limits.84Judges of the former are appointed by the Governor General, pursuant to section 96 of the Constitution Act, 1867, while judges of the latter are appointed by the appropriate Lieutenant Governor. Both of these federally or provincially appointed judges can hear criminal matters, even though the subject matter of criminal law is in federal jurisdiction. Further, while Parliament has exclusive authority to establish penitentiaries,85in which sentences of two years or more are served, the provinces may maintain jails for shorter terms of imprisonment.86And while Parliament has the authority to make laws that define police powers in criminal matters, including powers of arrest and search, the provision of police services

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is a matter that forms part of the administration of justice within a province or territory.87The allocation of jurisdiction over criminal procedure to Parliament reflects a deliberate policy at Confederation that the criminal law should be national in scope.88This objective is more easily achieved in statutory law than in judicial decisions, which leave open the possibility of inconsistency among provinces and even within provinces. It might be noted, however, that statutory law relating to criminal procedure is not uniform in all parts of Canada. For example, the structure of the courts is not the same in all jurisdictions, nor is the allocation of jurisdiction to those courts.89The courts have also held that some aspects of criminal procedure may be applied differentially across Canadian jurisdictions. That is, the constitution of Canada does not require uniform application of the law in all parts of the country.90There have been challenges to the validity of provincial legislation on the grounds that it trespasses upon Parliament’s exclusive jurisdiction over matters of criminal law.91There have also been challenges to federal legislation that created criminal offences on the basis that the particular law reached into the provincial sphere, rather than being a proper exercise of power under section 91(27) of the Constitution Act, 1867.92In addition, there have been challenges suggesting that some aspects of criminal procedure were not within Parliament’s legislative competence according to the division of powers.93One particular division-of-powers issue that, in the words of the Court, "seems to have ‘boiled up’ rather late in our constitutional jurisprudence" was the question of whether the constitutional authority to prosecute criminal offences rests with the federal or the provincial

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government.94As a matter of fact, prosecutions were, at the time of Confederation and for a considerable period thereafter, conducted exclusively by the provinces (other than private prosecutions, discussed below). Roughly 100 years after Confederation, Parliament created federal legislation, some of it constitutionally justified as criminal law under section 91(27), which was to be prosecuted by federally appointed prosecutors. For the most part, these consisted then, as they do today, of narcotic offences, now found in the Controlled Drugs and Substances Act.95This led to a series of constitutional challenges to determine whether appointing prosecutors was constitutionally a matter of criminal procedure under section 91(27) (and therefore federal) or a matter of administration of justice in the province under section 92(14) (and therefore provincial).

Incrementally, the cases worked their way to a conclusion and eventually reached the final decision that the authority to decide who will prosecute criminal offences has always rested with the federal government, and that the fact that provinces had conducted virtually all prosecutions was simply a practical accommodation resting on the abstention of the federal government from appointing prosecutors.96As a result, federal legislation that appointed federal prosecutors in the case of some offences did not violate the division of powers.

It is important to recognize, though, that these decisions did not purport to remove any ability for the provinces to appoint prosecutors. Parliament had created a few exceptions to the practice of provincially appointed prosecutors, and those exceptions were constitutional. Parliament had not opted to take over the task of criminal prosecutions generally (though seemingly the decisions mean that it could), with the result that, as a matter of practice, the great bulk of criminal law offences are prosecuted by provincial authorities. This is reflected in the definition of "Attorney General" in section 2 of the Code, which generally defines the term to mean the attorney general of the province where the proceedings are taken. This approach is subject to a few exceptions, such as terrorism offences, where the federal attorney general is also included. Similarly, there are a few provisions such as section 579.1, which give the federal attorney general a power to intervene in

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some prosecutions, which is roughly parallel to the power to intervene given to provincial attorneys general in section 579.

A similar issue arises around the establishment of courts. Many aspects of criminal procedure are assigned to "superior courts," which have authority pursuant to section 96 of the Constitution Act, 1867. As a matter of constitutional law, exclusive jurisdiction over powers that are integral to the operation of a superior court and therefore part of their core functions cannot be assigned to some other court or body, whether that body is federally or provincially created.97

b) The Canadian Charter of Rights and Freedoms

The impact of the Charter on investigative powers was noted above. In fact, it has also had considerable significance on rules of pre-trial and trial procedure. Some of the Charter’s "Legal Rights" provisions are aimed directly at such issues, such as section 14, which guarantees the right to an interpreter, or section 13, which protects against having self-incriminating testimony used. Other rights, though somewhat less specific, also have a direct bearing on these types of procedural issues: the section 11(b) right to a trial within a reasonable time, or the section 11(e) right not to be denied reasonable bail without just cause, for example. Further, the guarantee in section 7 of procedures that are in accordance with the principles of fundamental justice has been held to guarantee the right to make full answer and defence98and the right to silence99and it is the basis upon which the Supreme Court developed principles relating to pre-trial disclosure by the prosecution.100Another effect of the Charter has been a reconsideration of the personal and public interests involved in criminal procedure. Until comparatively recently, criminal procedure was typically conceived as

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a matter involving the interests of the state and the accused. Civil liberties were understood to refer to the rights of the persons suspected or accused of wrongdoing. Interpretation of the Charter has brought an important change to these views. The courts have recognized that complainants, witnesses, and other third parties might have constitutional rights under the Charter that could be invoked and enforced in the course of criminal proceedings. Thus, for example, the right to a reasonable expectation of privacy has been identified as a reason not to disclose the personal records of complainants in the prosecution of sexual offences.101Similarly, freedom of expression has been invoked as a reason to allow a broadcaster the right to publish an account of some proceedings.102Further, in interpreting the right to a trial within a...

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