LSO Barrister Criminal Law Ontario — Questions and Answers
Question 1: Under section 11(b) of the Charter, what are the presumptive ceilings for unreasonable delay established in R v Jordan (2016)?
- 12 months for all courts
- 18 months for cases in provincial court and 30 months for cases in superior court (or after a preliminary inquiry) (Correct answer)
- 24 months for all indictable offences
- 6 months for summary offences and 12 months for indictable offences
Correct answer: 18 months for cases in provincial court and 30 months for cases in superior court (or after a preliminary inquiry)
R v Jordan (2016) established a new framework for section 11(b). Delay exceeding 18 months from charge to actual or anticipated end of trial in provincial court, or 30 months in superior court, is presumptively unreasonable. The Crown can rebut this presumption by showing exceptional circumstances. Below the ceiling, the defence must demonstrate the delay is markedly departed from reasonable.
Question 2: In Ontario, what is the role of the 'Crown pre-trial conference' in criminal proceedings?
- It is a trial before the actual trial
- It is a meeting between the Crown and defence to discuss disclosure, potential resolution, estimated trial time, and Charter issues, aimed at narrowing issues and promoting efficient case management (Correct answer)
- It is a hearing to determine bail conditions
- It is a sentencing hearing held before the verdict
Correct answer: It is a meeting between the Crown and defence to discuss disclosure, potential resolution, estimated trial time, and Charter issues, aimed at narrowing issues and promoting efficient case management
The Crown pre-trial is a crucial step in Ontario criminal proceedings. It allows counsel to discuss: outstanding disclosure, potential guilty pleas and joint submissions on sentence, Charter applications, agreed facts, witness availability, and estimated trial length. Effective pre-trials narrow issues, reduce trial time, and may result in resolution without trial. Judicial pre-trials are a separate process involving a judge.
Question 3: What is the 'Gladue report' and when must it be ordered in Ontario?
- A medical report on the accused's mental health
- A detailed report prepared for sentencing that examines the unique systemic and background factors of an Aboriginal offender, including the impact of colonialism, residential schools, and intergenerational trauma (Correct answer)
- A pre-trial investigation report prepared by the Crown
- A victim impact statement
Correct answer: A detailed report prepared for sentencing that examines the unique systemic and background factors of an Aboriginal offender, including the impact of colonialism, residential schools, and intergenerational trauma
A Gladue report is prepared by a trained Gladue writer who investigates the Aboriginal offender's personal circumstances, community, and the systemic factors (colonialism, residential schools, foster care, substance abuse, poverty) that may have contributed to their involvement in the criminal justice system. The court must consider Gladue factors at sentencing for all Aboriginal offenders (R v Gladue, R v Ipeelee), and may request a formal Gladue report.
Question 4: What is the test for granting bail (judicial interim release) under the Criminal Code in Ontario?
- The accused must prove they are not guilty to be released
- The accused is generally entitled to bail unless the Crown shows on a balance of probabilities that detention is justified under the primary (flight risk), secondary (public safety), or tertiary (public confidence) grounds (Correct answer)
- All accused persons must remain in custody until trial
- Bail is only available for summary conviction offences
Correct answer: The accused is generally entitled to bail unless the Crown shows on a balance of probabilities that detention is justified under the primary (flight risk), secondary (public safety), or tertiary (public confidence) grounds
Under section 515, the default is release. The Crown must show cause for detention on one of three grounds: (1) Primary — the accused will not attend court; (2) Secondary — detention is necessary for public safety; (3) Tertiary — detention is necessary to maintain confidence in the administration of justice. For most offences, the burden is on the Crown. For certain serious offences (s.469, s.515(6)), the burden shifts to the accused.
Question 5: What is the significance of R v Grant (2009) for the admissibility of evidence obtained in breach of Charter rights?
- It established that all illegally obtained evidence must be excluded
- It established a three-part test for exclusion under section 24(2): seriousness of the Charter-infringing conduct, impact on the Charter-protected interests of the accused, and society's interest in adjudication on the merits (Correct answer)
- It held that evidence obtained in breach of the Charter is always admissible
- It only applies to physical evidence, not statements
Correct answer: It established a three-part test for exclusion under section 24(2): seriousness of the Charter-infringing conduct, impact on the Charter-protected interests of the accused, and society's interest in adjudication on the merits
R v Grant replaced the Collins/Stillman framework with three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct (systemic vs. inadvertent); (2) the impact on the accused's Charter-protected interests (severity of the intrusion); (3) society's interest in a trial on the merits (reliability, importance of the evidence). The court balances these factors to determine whether admission would bring the administration of justice into disrepute.
Question 6: Under Ontario law, what are the differences between a direct indictment and a preliminary inquiry?
- There is no difference between them
- A preliminary inquiry is a hearing before a justice to determine if there is sufficient evidence to commit the accused to trial, while a direct indictment allows the Attorney General to bypass the preliminary inquiry and send the case directly to trial in Superior Court (Correct answer)
- A direct indictment is only used for summary conviction offences
- A preliminary inquiry is conducted by a jury
Correct answer: A preliminary inquiry is a hearing before a justice to determine if there is sufficient evidence to commit the accused to trial, while a direct indictment allows the Attorney General to bypass the preliminary inquiry and send the case directly to trial in Superior Court
A preliminary inquiry (s.535-551) is a hearing before a justice to determine if there is sufficient evidence (a prima facie case) to order the accused to stand trial. A direct indictment (s.577) allows the Attorney General to prefer an indictment directly, bypassing the preliminary inquiry entirely. Note: since 2019 amendments, preliminary inquiries are only available for offences carrying life imprisonment. Direct indictments are discretionary and relatively rare.
LSO Barrister Criminal Law Ontario
Under section 11(b) of the Charter, what are the presumptive ceilings for unreasonable delay established in R v Jordan (2016)?