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The Anatomy of Criminal Procedure

A Visual Guide to the Law

Overview

Criminal law is a powerful legal tool in Canadian society consisting of numerous procedural rules but little organization. Provisions of the Criminal Code that are directly relevant to each other are often separated by many different (and usually irrelevant) sections and subsections. The common law rules of criminal procedure, meanwhile, are often established incrementally, in numerous cases decided over a long period of time. With both the Code and common law, it can be difficult and time-consuming to assemble and explain the entire legal framework governing a particular police power or court procedure. This deficiency in the law is what led authors Steve Coughlan and Alex Gorlewski to create a comprehensible resource that clarifies the relationships among the individual statutory provisions and the common law rules of criminal procedure.

The Anatomy of Criminal Procedure: A Visual Guide to the Law illustrates the law of criminal procedure through nearly seventy annotated charts and diagrams. Across the whole criminal process — from search and seizure to appeals and sentencing — this book consolidates the statutory and common law rules around each step, visually depicts how they fit together, and explains in detailed annotations how the rules work and have been interpreted by courts. This is a valuable text for practitioners who work with the criminal process every day, as well as for students learning it for the first time. Coughlan and Gorlewski aim to outline the law as it was created and implemented by our institutions, while providing the coherence it sometimes lacks yet certainly requires.

Table of Contents

Preface

1. POLICE POWERS

1.1 Search and Seizure

1.1(a) Search and Seizure Without a Warrant
1.1(a)(i) Which Warrantless Search Power Is Appropriate?
1.1(a)(ii) Search Incident to Arrest
1.1(a)(iii) Search Incident to Investigative Detention
1.1(b) Search and Seizure with a Warrant
1.1(b)(i) Is There a Section 8 Violation?
1.1(b)(ii) Which Warrant Is Appropriate?
1.1(b)(iii) Lower Standard Searches
1.1(b)(iv) Section 487 Search Warrants
1.1(b)(v) Higher Standard Searches
1.1(b)(vi) Section 487.01 General Warrants
1.1(b)(vii) DNA Warrants
1.1(b)(viii) DNA Databank Orders
1.1(b)(ix) Which Production Order Is Appropriate?
1.1(b)(x) Review of Warrants
1.1(c) Electronic Surveillance
1.1(c)(i) Which Wiretap Authorization Is Appropriate?
1.1(c)(ii) Consent Audio or Video Surveillance
1.1(c)(iii) Non-consent Audio or Video Surveillance
1.1(c)(iv) Applications to Open the Packet

1.2 Investigative Detention

1.2(a) Is There a Section 9 Violation?
1.2(b) Shades of Detention
1.2(c) Is a Person Psychologically Detained?

1.3 Compelling Appearance

1.3(a) Compelling Appearance Matrix
1.3(b) Compelling Appearance with Prior Judicial Scrutiny
1.3(c) Compelling Appearance Without Prior Judicial Scrutiny
1.3(d) Arrest Without a Warrant
1.3(e) Release of Persons Arrested with a Warrant
1.3(f) Release of Persons Arrested Without a Warrant

2. PRELIMINARY MATTERS

2.1 Judicial Interim Release

2.1(a) Show Cause Hearings
2.1(b) Forms of Release
2.1(c) Review of Judicial Interim Release Orders
2.1(d) Arrest of Accused on Interim Release
2.1(e) Review of Detention Where Trial Delayed
2.1(f) Release Pending Determination of Appeal

2.2 Jurisdiction

2.2(a) Jurisdiction over the Person
2.2(b) Temporal Limits on Jurisdiction
2.2(c) Territorial Jurisdiction
2.2(c)(i) Which Province Has Jurisdiction?
2.2(c)(ii) Extraterritorial Jurisdiction over Offences
2.2(c)(iii) Extraterritorial Jurisdiction and the Charter

2.3 Disclosure and Production

2.3(a) Disclosure
2.3(b) Production Orders
2.3(b)(i) Production Orders Under O’Connor
2.3(b)(ii) Statutory Production Orders

2.4 Determining the Mode of Trial

2.4(a) Determining the Mode of Trial
2.4(b) Ability to Re-elect

2.5 Pre-trial Motions

2.5(a) Publication Bans
2.5(b) Change of Venue
2.5(c) Fitness to Stand Trial
2.5(d) Language of Trial

3. THE TRIAL PROCESS

3.1 Informations and Indictments

3.1(a) Contents of Charges: Duplicity
3.1(b) Contents of Charges: Insufficiency
3.1(c) Joinder and Severance: Accused
3.1(d) Joinder and Severance: Counts

3.2 Jury Selection

3.2(a) Jury Selection
3.2(b) Challenge for Cause
3.2(c) Number of Members of a Jury

4. POST-TRIAL MATTERS

4.1 Appeals

4.1(a) Appeals by the Crown: Grounds
4.1(b) Appeals by the Crown: Possible Outcomes
4.1(c) Appeals by the Accused: Grounds
4.1(d) Appeals by the Accused: Narrowing the Bases for Success
4.1(e) Appeals by the Accused: Possible Outcomes

4.2 Special Post-conviction Procedures

4.2(a) Discharges
4.2(b) Fines
4.2(b)(i) Fines on Individuals
4.2(b)(ii) Fines on Organizations
4.2(c) Forfeiture of the Proceeds of Crime
4.2(c)(i) Post-conviction Forfeiture Orders
4.2(c)(ii) Third-Party Relief from Forfeiture Orders
4.2(d) Intermittent Sentences
4.2(e) Credit for Pre-sentence Custody
4.2(f) Sex Offender Registration
4.2(f)(i) Making a SOIRA Order
4.2(f)(ii) Duration of a SOIRA Order
4.2(g) Dangerous-Offender Orders
4.2(h) Long-Term Offender Orders

Table of Cases
About the Authors

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