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Summary LSO Licensing Exam Hack - Self Study notes - Criminal law - 55 pages

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Welcome to the first of the two-part LSO Licensing Exam hack. The LSO Licensing Exam Hack (Barrister) series is a self-created, comprehensive, well-organised and neat summary and study notes containing all five subjects: - Professional Responsibility - Civil Litigation - Criminal Law -...

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lso licensing exam
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ontario bar exam
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LSO - Barrister & Solicitor – Criminal law LSO - Barrister & Solicitor – Criminal law

Table of Contents 36 The classification of offences and trial jurisdiction
36 The classification of offences and trial jurisdiction 2 43 Mental disorder 59
 1. Jurisdiction
37. Investigative powers 12 44 The trial 63
 1.1 Constitution — division of powers
38 Pre-trial release 27 45 Sentencing 72  criminal law falls under federal jurisdiction, w/ Parliament having exclusive power to
make laws in relation to “criminal law, except the constitution of courts of criminal
39 Disclosure 37 46 Appeals and bail pending appeals 84
jurisdiction, but including the procedure in criminal matters.”
40 Preliminary inquiries 42 47 Indigenous peoples and the criminal justice system 93  federal legislation, such as CC (Code) and the CDSA (CDSA), governs criminal law and
41 Witnesses 46 48 Youth criminal justice 96 procedure across CA.
 provincial legislatures have jurisdiction over the “administration of justice in the
42 Pre-trial applications in criminal proceedings 52 49 Controlled Drugs and Substances Act, Cannabis Act, 103 province, including the constitution, maintenance, and org of provincial courts, both of
and Cannabis Control Act, 2017
civil and of criminal jurisdiction, and including procedure in civil matters in those courts.”
 in ON, both SCJ and the provincial OCJ have each codified rules for their own courts (the
Glossary Criminal Proceedings Rules for SCJ (ON) and the Criminal Rules of OCJ (OCJ Rules)).
The Law Society of Ontario / Law Society of the Trial Judge: TJ United Nations: UN
Ontario: LSO the ♕: ♕ Youth Criminal Justice Act  provinces also have jurisdiction to enact and enforce provincial offences legislation w/in
Chief Executive Officer: CEO year: yr Canada / Canadian: CA each province. E.g., in ON, the Provincial Offences Act governs the procedure for
the Rules of Civil Procedure: RCP Witnesses: Wes alternative dispute resolution: ADR
prosecuting offences committed contrary to provincial legislation, such as the Highway
Lawyer / Licensee: L Witness: W maximum: max
Client: C Corporation: corp minimum: min Traffic Act. All provincial offences are heard in OCJ
By-Law / By law: BL the Judge: J' person: 人  1.2 Adults
Government: gov Plaintiff: P>
people: ppl Claimant: C>
Common law: CL  In ON, criminal trials for adults (ppl 18 yrs old or older) are conducted in two trial courts,
the Federal Court: FC
Organization: org' Defendant: >D the administrative decision maker: ADM
OCJ and SCJ.
Information: info Ontario: ON
third party: 3P
administrative law: AL  Trials that take place in OCJ are presided over by a judge sitting alone.
examination: exam' Minister of: M of
business: biz Respondent: >R  Trials that take place in SCJ are heard by a judge sitting alone or by a judge sitting w/ a
Beyond a reasonable doubt: BaRD
between: b/w ,000,000 m jury.
United States: The U.S.
with: w/ ,000: k Dispute resolution: DR
without: w/o days: d'  1.3 Young 人 s
Family Law Act: FLA
Criminal Code / "The Code": CC documentation / documentary / document:
the Ontario Court of Justice: OCJ doc
Divorce Act: DA  The Youth Criminal Justice Act (YCJA) governs criminal procedure as it relates to “young
Department of Justice: DoJ
the Superior Court of Justice: SCJ Evidence Act: EA Principle of Natural Justice: PNJ 人 s,” who are 12 yrs old or older but less than 18 yrs old
the Supreme Court of Canada: SCC preliminary: prelim Charter of Rights and Freedoms: Charter
the Attorney General: AG the Small Claims Court: SmallCC common law: CL
 YCJA gives the “youth court” exclusive jurisdiction in respect of “any offence” alleged to
judicial review: JR juridical review: JR
Divisional Court: DC ON: Ontario
Principles of natural justice : PNJ have been committed by a 人 “while he or she was a young 人”
CJA: CJA
the Court of Appeal: CoA British Columbia: BC  the age of the accused at the time of the alleged offence determines whether the accused
is tried in youth court.
A step-by-step guide to hacking the licensing exams
 In ON, judges of OCJ have been designated as judges of the youth court
1. Read this thoroughly, understand this material fully
 2. Two types of charging docs
2. Try practice questions (timed!) with the LSO materials, not this one.: I used this one:
 2.1 The info
https://accessbarprep.com/ pretty good but I'm sure others are fine too; make sure you try a full-length sample
 a sworn doc that sets out the charge or charges against the accused used in OCJ for both
exam, at least one for each exam
adult and youth proceedings.
3. Go over wrong questions and understand them fully.
 To lay an info, an informant swears before a justice (defined in s. 2 of CC as either a
4. LSO website also have a couple of sample questions you should try: https://lso.ca/becoming-licensed/lawyer-
justice of the peace or a provincial court judge) that the accused committed a criminal
licensing-process/licensing-examinations/sample-examination-questions
offence or, if the informant does not have personal knowledge, that the informant
5. I didn't create my own TOC and solely relied on Law Society materials for the exam, they are detailed enough
believes on reasonable grounds that the accused committed a criminal offence.
for exam purposes. DO NOT bring this material to the exam site except for illustration purposes. You need
 The info is in court each time the accused appears, and it is used to record the progress of
proper a DTOC!
the case.
6. If you do all of the above, I am 100% sure you'll pass.
 2.2 The indictment
 The indictment is the charging doc used in the superior court of criminal jurisdiction,
which in ON is SCJ.
 an indictment is a written accusation signed by an agent of AG (typically ♕ counsel).
 indictment contains the charge or charges against the accused, records all of the court
appearances in SCJ, and records the disposition of the case, including any penalty.
 Not all criminal charges proceed to SCJ, but for those that do, an indictment will be used.

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,LSO - Barrister & Solicitor – Criminal law LSO - Barrister & Solicitor – Criminal law

 The info and the indictment are distinct docs. The info is the charging doc used in OCJ,  3.3 Hybrid offences
and the indictment is the charging doc used in SCJ.  ♕ has the choice as to whether to proceed summarily or by way of indictment.
 if the matter is a hybrid offence, such as assault causing bodily harm (s. 267(b)) and ♕  Most offences that have a max penalty of 10 yrs or less of imprisonment are hybrid
proceeds by summary conviction, the info is noted as such. offences.
 if the matter proceeds by indictment, the info would reflect that election. Even indictable  . All hybrid offences are accompanied by a specific penalty provision that sets out the max
offences, such as robbery (s. 344), begin w/ an info. If a matter proceeds from OCJ to SCJ, penalty available should ♕ proceed by way of indictment.
♕ counsel drafts and files an indictment.  If CC does not set out a specific penalty for a hybrid offence and ♕ elects to proceed
 2.3 “Preferring” the indictment summarily, then s. 787(1), the general penalty section for summary offences, applies (i.e.,
 After the indictment has been drafted and signed, it is “preferred", a.k.a "filed"; in ON, the a max of two yrs less a day’s imprisonment or a $5k fine or both).
indictment is preferred in SCJ.  Until ♕ makes its election, the offence is deemed to be indictable for the purposes of any
 2.4 Two kinds of indictments interim procedures
 2.4.1 Indictments prepared after the accused has been committed to stand trial  If the trial of a hybrid offence proceeds before a summary conviction court and ♕ has not
 Many indictments are preferred after the accused has been ordered (or made its election, there is a presumption that ♕ has elected to proceed by way of
“committed”) to stand trial. This order typically occurs following a prelim summary conviction
inquiry in OCJ  4. Charge screening and disclosure
 Alternatively, where a prelim hearing is not available to the accused or is not
 After an accused 人 is charged w/ a criminal offence, ♕ will review ♕ brief to determine whether the
requested, the indictment is preferred once the accused elects to be tried in
SCJ appropriate charge has been laid. ♕ brief is prepared by the police and typically includes a synopsis of
 2.4.2 Direct indictments the offence, background info about the accused (such as the accused’s criminal record), W
 Although it is not commonly done, AG or the Deputy Attorney General may statements, and police officers’ notes.
prefer an indictment and require the accused to go directly to trial in SCJ  If ♕ determines that there is a reasonable prospect of conviction on the charge(s) laid and that it is in
(=direct indictment) the public interest to proceed w/ the prosecution, ♕ will (in most jurisdictions) complete a charge
 may occur before the accused has been given the opportunity to request a screening form and will in all cases prepare disclosure for the defence.
prelim inquiry, where a prelim inquiry has commenced but not concluded, or  The charge screening form will usually list
where a prelim inquiry was held but the accused was not committed for trial.  the charge(s) on which ♕ intends to proceed;
 This power requires the written personal consent of AG or the Deputy  how ♕ elects to proceed (either summarily or by indictment);
Attorney General.  whether the case is appropriate for direct accountability (diversion) or a peace bond; and
 this extraordinary power, which deprives the accused of a prelim inquiry  ♕’s position on sentencing on a guilty plea.
used in:  5. Legal aid
 The security of Wes may be jeopardized by lengthy proceedings.  An accused 人 has the right to retain the L of the accused’s choice.
 There is good reason to believe that the accused will abuse the
process by causing delay.  If the accused 人 cannot afford to privately retain counsel, the accused may apply to Legal Aid ON
 ♕ wishes to try separately charged co- accused together. (LAO) for assistance.
 ♕’s case will be prejudiced by delay, e.g., where the Wes are  Once a L accepts a C w/ a legal aid certificate, the L has responsibilities to LAO, which should be
elderly or in poor health or from outside the jurisdiction. reviewed by the L and may be found on the LAO website. E.g., a L must respond promptly to all
 3. Three types of offences requests by LAO for info.
 3.1 Straight summary conviction offences  6. Three ways to proceed “by indictment”
 Offences punishable only on summary conviction  The term “proceeding by way of indictment” refers to the manner of proceeding and does not refer to
 least serious offences and attract the lowest penalties the charging doc known as “the indictment,”
 Often, the sections creating straight summary offences in CC are not accompanied by  When ♕ chooses to proceed by way of indictment, this affects the procedure and the penalties
specific penalty provisions. Where a penalty is not provided in the offence section, available, but it does not necessarily mean that there will be “an indictment.
reference must be made to s. 787(1) of CC, which sets out the general penalty for  All proceedings in OCJ, which can involve many proceedings that are “by indictment,” proceed on a
summary conviction offences: charge or charges that are contained in “an info.”
 Unless otherwise provided by law, every 人 who is convicted of an offence  6.1 Absolute jurisdiction or s. 553 offences
 The indictable offences listed in s. 553 of CC fall w/in the “absolute jurisdiction” of OCJ.
punishable on summary conviction is liable to a fine of not more than $5k or
 W/ respect to these offences, the accused does not have an election as to mode of trial.
to a term of imprisonment of not more than two yrs less a day, or to both.
 accused will have a trial in OCJ w/out the right to request a prelim inquiry.
 3.2 Straight indictable offences
 there will be no indictment drafted, and the matter will proceed by way of an info.
 can only be prosecuted by way of indictment
 theft under $5k (s. 334(b)) and possession of a Schedule II substance under the CDSA
 the most serious offences and carry the most severe penalties upon conviction
(CDSA, s. 4(4)(a)) also included
 Where an indictable offence does not have a punishment specifically provided, the max
 6.2 Exclusive jurisdiction or s. 469 offences
term of imprisonment is 5 yrs

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,LSO - Barrister & Solicitor – Criminal law LSO - Barrister & Solicitor – Criminal law

 The indictable offences listed in s. 469 of CC are the most serious offences in CC:  AG is entitled to receive notice of the hearing and a copy of the info and has the right to
 469.—(a) an offence under any of the following sections: treason, attend the hearing. At the pre-enquete, the presiding judge or designated justice must
intimidating Parliament or a legislature, seditious offences, piracy, piratical hear and consider the allegations of the informant and the evidence of Wes. ♕ must be
acts, murder given an opportunity to cross-examine, call Wes, and present any relevant evidence at
 (b) the offence of being an accessory after the fact to high treason or treason the hearing (s. 507.1(3)). After hearing all of the evidence, the court must consider
or murder; whether to issue process (by way of summons or warrant) to compel the appearance of
 (c) an offence under section 119 (bribery) by the holder of a judicial office; the accused on the info.
(c.1) an offence under any of sections 4 to 7 of the Crimes Against Humanity  If the court refuses to issue process, no new attempts to lay the info may be made unless
and War Crimes Act; there is new evidence in support of the allegation
 (d) the offence of attempting to commit any offence mentioned in  However, the informant may bring an application in SCJ for a mandamus order to compel
subparagraphs (a)(i) to (vii); or J or designated justice to issue process.
 (e) the offence of conspiring to commit any offence mentioned in paragraph  The informant must commence such an application w/in six months of the pre-enquete
(a). decision. If no process is issued, then the info is deemed never to have been laid
 These offences fall w/in the exclusive jurisdiction of SCJ, and they are presumptively  If process is issued, ♕ may properly intervene in a private prosecution and decide
tried, following a prelim inquiry if requested and available, by a judge sitting w/ a jury whether to proceed w/ the prosecution or to withdraw or stay the charges listed in the
 consent of both AG and the accused is required to have a s. 469 offence tried by a judge info.
sitting alone  ♕ may stay the charges any time after the info has been laid (i.e., before the pre-
 6.3 Section 554 offences enquete). However, ♕ cannot withdraw the charges until after the pre-enquete is
 All indictable offences that are not listed in either s. 469 or 553 are governed by s. 554 of complete and J or justice has issued process
CC.  9. Formal requirements of an indictment
 accused may elect to have their trial before a provincial court judge. Otherwise, the  9.1 After a prelim inquiry
accused may elect to be tried, either w/ or w/out a jury, in SCJ  in many cases, an indictment is prepared as a result of an order to stand trial made by a
 6.4 Availability of prelim inquiries judge of OCJ pursuant to s. 548 of CC
 Code has restricted the availability of prelim inquiries to only indictable offences whose  A judge of that court has jurisdiction to order an accused to stand trial for the offence or
max penalty is imprisonment of 14 yrs or more. offences charged in the info upon which the prelim inquiry was conducted, for any
 7. Proceeding summarily included offences, or for any other indictable offence in respect of the same transaction
 Where the accused is charged w/ a straight summary conviction offence or where ♕ elects to  This order to stand trial is the foundation for the content of the indictment to be drafted
“proceed summarily” in respect of a hybrid offence, CC’s summary procedures are followed. by ♕.
 8. Initiating the criminal process by info  rules for charges described w/in an indictment:
 The swearing of an info sets the criminal process in motion.  A single indictment may contain charges that were on separate infos and
 Anyone w/ reasonable grounds to believe that an offence has been committed by a 人 may lay an info thus the subject of separate orders to stand trial
in writing and under oath before a justice (s. 504). This is done by attending ex parte (w/out notice to  prosecutor may include charges on which the accused was ordered to stand
the accused) before a justice and describing the alleged criminal conduct to the justice. trial or “any charge founded on the facts disclosed by the evidence taken on
 In most cases, the informant is a police officer or peace officer who has already prepared an info. the prelim inquiry, in addition to or in substitution for any charge” on which
 The info is presented to and sworn before the justice. the accused was ordered to stand trial
 The justice is required to determine whether the informant has the requisite reasonable grounds to  W/ consent of the accused, prosecutor may include any other charge
support the charge being laid. whether or not it is founded on an order to stand trial or evidence of it was
disclosed at a prelim inquiry. This provision is often used where the accused
 In the case of an info brought before the justice by a peace officer, a public officer, AG, or an agent of
has several outstanding charges and wishes to have all of the charges dealt
AG, the justice must also determine whether to compel the accused to attend court by issuing either a
w/ at one time by one judge, often by way of a guilty plea
summons or a warrant
 A police officer may also issue process by serving an appearance notice on the accused; The officer
 Where the prosecutor is a private prosecutor, an indictment can be
preferred only w/ the written consent of a judge of SCJ
then swears the info before a justice after process has issued
 8.1 Private infos and pre-enquetes
 Once the order to stand trial has been made, the info is spent. The case is then in the
hands of the prosecutor until the indictment is preferred.
 Where the informant is a private citizen (as opposed to a police officer or other law
enforcement figure) and that private informant attends before a justice to lay an info
 9.2 Where no prelim inquiry available or requested
under oath, the provisions of s. 507.1 apply  Where a prelim inquiry has not been requested in the provincial court or is not available
 if the info meets the requirements in s. 504, it is then referred either to a provincial court to the accused (see s. 536 of CC), ♕ may prefer the indictment in respect of any of the
judge or to a designated justice for the purposes of holding an in camera “pre-enquete” charges that were on the info before the provincial court, or in respect of any included
hearing to ensure that spurious allegations, vexatious claims, and frivolous complaints offences, at any time after the accused 人 has elected, re-elected, or been deemed to
barren of evidentiary support or legal validity will not carry forward into a prosecution.” have elected the mode of trial
 9.3 Where the indictment is a direct indictment

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, LSO - Barrister & Solicitor – Criminal law LSO - Barrister & Solicitor – Criminal law

 Where an accused 人 has not yet been given an opportunity to request a prelim inquiry or  Where the info or indictment provides insufficient detail to allow accused 人 s to know
where the prelim inquiry has begun but has not finished or where a prelim inquiry has the charge against them, they may move for particulars under s. 587 of CC.
been held and the accused has been discharged, Attorney General may prefer a direct  Particulars are intended to supplement an info or indictment that is not sufficiently
indictment informative to ensure a fair trial.
 In the case of public prosecution, the personal consent in writing of AG or Deputy  12.3 Quashing the indictment or info
Attorney General is required to be filed in the court.  Where an info or indictment is so deficient that it is quashed, this may, practically
 Where the prosecution is not being conducted by AG or as a result of intervention by AG, speaking, end the prosecution. A limitation period may have intervened to prevent the
an order of a judge of SCJ is required for a direct indictment re-laying of the charge, or a further prosecution may be stayed on an application of s.
 10. Substantive requirements of infos or indictments 11(a) or (b) of the CA Charter (Charter).
 1) A single transaction: Each count in an indictment must in general relate to a single transaction(s.  Provided that a limitation period has not intervened and the info or indictment was
581(1)). A single transaction does not necessarily connote a single act. A transaction may include a quashed prior to a plea, the charge may be re-laid.
series of related act  Where an accused 人’s application to quash is dismissed, the dismissal may be raised on
 2) An offence known to law: Each count must allege an offence known to law, but that offence may be
any subsequent appeal of a conviction of an offence that was set out in the info.
described in popular language, in the words of the statute, or in words that give the accused adequate
 12.4 Amendments to conform to the evidence
notice of the offence w/ which the accused is charged
 In addition to amendments that may be requested to cure patent defects on the face of
 3) Only one offence per count: Each count must charge only one offence. So, e.g., one count in the
an info or indictment, pursuant to s. 601(2) of CC, amendments may be permitted where
indictment may not charge both theft and fraud (duplicity rule)
the evidence deviates from the allegations w/in the info or indictment - gives the court
 4) The act or omission must be identified: Each count must identify the act or omission that is alleged
the discretion to amend defects that emerge only during the course of trial.
to have amounted to an offence.
 When such an amendment is made to an indictment or an info, it is endorsed on the
 11. Special provisions for charging certain offences
original doc and forms part of the charge. In the case of a jury trial, the indictment and any
 Some Code offences have special rules for pleading. i.e., s.582 requires that the offence of first-degree amendments or particulars go w/ the jury into the jury room for their deliberations. The
murder must be specifically charged accused need not be re-arraigned when an amendment has been made.
 Otherwise, an indictment charging simply “murder” w/out more will be deemed to be a charge of  13. Trial jurisdiction
second-degree murder.
 13.1 Territorial jurisdiction
 s. 589 provides that no count for an indictable offence shall be joined w/ a count alleging murder
 As a general rule, an accused is tried in the territorial jurisdiction in which the offence
unless the other offence arises from the same transaction as the count charging murder or the
was committed.
accused consents to joinder of the counts.
 CA courts will usually not exercise jurisdiction over offences committed outside CA.
 on a libel or obscenity charge, the allegedly libellous or obscene words need not be set out in the
 However, several statutory exceptions to this rule exists:
indictment.
 offence committed on airplane, allegation is treason, forging a passport,
 special rules for charging perjury, and s. 586 provides that on fraud charges the nature of the
piracy, terrorist activity, or certain conspiracy offences, money laundering,
fraudulent means need not be set out in detail.
where the allegation is money laundering and the property or proceeds were
 12. Proceedings respecting the form and substance of an indictment or info
obtained from an act or omission anywhere that, if it had occurred in CA,
 12.1 Motion to quash the indictment or info would have constituted a designated offence
 Where the accused alleges that the info or indictment is deficient on its face, a motion to  If charges are laid in relation to one of these offences committed outside of CA, s. 481.2
quash may be brought before the court pursuant to s. 601 of CC. provides that proceedings may be commenced, whether or not the accused actually is in
 must be brought before the accused has entered a plea. CA, and the accused may be charged, tried, and punished w/in any territorial division in
 Thereafter, the motion can only be brought w/ leave of the court, although it should be CA as if the offence had been committed in that territorial division.
noted that this rule applies only to patent defects*; other defects may not become  Where parts of the alleged offence occurred in CA and parts in another country or
apparent until the trial has begun. In that case, the accused may raise the objection at the countries, the courts have found the jurisdiction to try those cases in CA.
time it becomes apparent.  On occasion, offences are committed in several territorial divisions or, more rarely, upon
*a fault or defect that are not hidden and should easily be discovered by a reasonable inspection the connecting boundary b/w them. Section 476 of CC sets out rules for special
 Where the count at issue contains more than one transaction, thereby offending s. jurisdictions
581(1), or is duplicitous at CL, the usual remedy is for the court to divide the count into  An accused appearing before an ON court who has a number of charges outstanding in
two separate counts. respect of offences alleged to have been committed in another province may wish to
 Where the count fails to charge an offence known to law as required by s. 581(1), fails to have all of those charges dealt w/ at the same time by a single judge in a single location.
give reasonable info about the act or omission under s. 581(3), or fails to give sufficient The accused may request that ♕ consent to and facilitate the transfer of the info or
info to identify the transaction as required by s. 581(3), among other potential defects of
indictment. The consent of ♕ in both provinces is required. Such transfers are only
form and substance, the court may amend the indictment instead of quashing it, pursuant
possible where the accused undertakes to plead guilty to the extra-provincial charges
to s. 601(3), which affords the court a broad amending power.
and does in fact plead guilty to them.
 The central concern is whether the amendment will cause prejudice to the accused.
 13.2 Time limits on trial jurisdiction
 12.2 Particulars
 There is no time limit on the institution of indictable proceedings.

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