C. Statutory Overview of Procedure from Charging Decision to Trial

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 58-62

Page 58

One of the major obstacles to getting a real sense of how criminal procedure works at the trial stage is the fact that the relevant sections are found in widely disparate parts of the Code. As noted above, the Code is arranged in a roughly chronological fashion, but there are exceptions to this rule. For example, the procedures for summary conviction offences are set out nearly at the end, in Part XXVII, but nonetheless incorporate many earlier provisions by reference. Liberal use of the Code’s index is necessary simply to find where to look for the right rules. Therefore, it might be useful to lay out a brief road map showing the various routes that might be followed, from the commencement of proceedings to an eventual trial, and the relevant Code sections.

Under section 504, anyone can lay an information alleging the commission of an offence in front of a justice of the peace. This information will, according to section 506, be in Form 2, which is found in section

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849. Under section 788, this is the document under which a summary conviction trial will take place.

The justice of the peace decides, under section 507, whether to issue a summons or a warrant, where "a case for doing so is made out,"⁹⁰

to require the accused to attend court. Note that these are two distinct steps: whether to do anything, and if so whether to proceed by warrant or summons. Under section 507(3), the evidence is taken on oath.

Alternatively, rather than initially seeking process under section 504, a peace officer might have arrested a person without a warrant. That person may still be in custody or may have already been released at some stage on an appearance notice.⁹¹In that event, section 505 creates an obligation to present whatever process was issued to a justice of the peace. Section 508 then imposes an obligation on the justice to perform a screening process similar to that in section 507.

Presuming the matter goes further, the accused will be arrested or will receive the summons that was issued. If the accused was arrested, he will (under section 503) be taken in front of a justice of the peace who will decide whether to hold or release him. This bail hearing will be conducted in accordance with the procedures in section 515. Frequently, as a practical matter, bail hearings are by a judge rather than a justice of the peace.

Following any issues concerning the release of the accused will be the "arraignment"-the accused’s initial appearance in court to answer the charge. If the offence is hybrid, the Crown should elect whether to...