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CRIMINAL PROCEEDINGS: Pre-Trial Applications

Removal of Counsel

A lawyer becomes a “solicitor of record” after she or he has undertaken to act for a client and has appeared in court to get the date for a preliminary hearing or trial. Thus, the counsel has an obligation to represent the client in court, that is, to appear in court on accused’s behalf.   Should the counsel wish not to represent the accused, permission to do so is to be obtained from the court.  There could be many reasons leading the defence counsel to withdraw, like  non-payment of fees, being discharged by the client, and/or the existence of a serious loss of confidence between the lawyer and the client, thereby raising legal and ethical issues. However, timing in criminal  proceedings is crucial, because even if there is non-payment of fees, the counsel perhaps would not withdraw keeping in mind that the trial date is not far enough in the future to permit the accused to get a new lawyer, ready to defend the case. There are times when the Crown seeks to remove the defence counsel from the record on the basis of a conflict of interest. A conflict that warrants such disqualification arises when the defence counsel previously represented a Crown witness or when defence counsel proposes to represent persons who are jointly charged. Processes are given in the Rules for withdrawal and removal of defence counsel as the solicitor of record, the application for which is to be made as soon as practicable so as to avoid an adjournment of the proceedings. Notice and supporting materials has to be served on the opposing party at least 15 days before the hearing date, a date no less than 10 days before the preliminary inquiry or trial, as also to the accused by mailing a copy of the materials to his or her last known address.

The affidavit to accompany the notice  has to contain the particulars of the charge, details of any prior applications to have the accused’s solicitor of record removed, whether an adjournment will be required to permit the accused to retain a new counsel, and a “full statement of all the facts material to a determination of the application” including the reasons why the order should be granted.  The defence counsel is not to reveal any solicitor-client communications or other confidential information, even  when the reason for seeking to withdraw is because of conflict with the client (such as an admission).

Evidence Voir Dires

If the admissibility of evidence is in doubt before the commencement of the trial, the issue has to be addressed in a pre-trial motion, so that the trial becomes more focused. Such a trial within a trial or voir dire is necessary where evidence is to be called to resolve a preliminary question of fact before the judge can make a ruling. The  voir dires  arise  under the following  situations:

  1. Confession voir dires, requiring the Crown to  establish that the accused’s statement was made voluntarily as a precondition to its admission into evidence;
  2. A voir dire on the admissibility of a hearsay statement, to show that the statement meets the criteria of necessity and reliability; and
  3. Applications for the production of sensitive records under the Code, to demonstrate that the records are “likely relevant” before the issue of production is considered.

The evidence adduced in a voir dire is not to be applied to the trial itself unless both counsel agree to it. Obviously, in a jury trial any relevant portions of the evidence is to be repeated for the jurors’ consideration.

Constitutional Applications

Introduction of the Charter impacted dramatically on the nature and effectiveness of pre-trial motions in criminal proceedings enabling an accused person  by  constitutional applications to challenge:

  1. A legislative enactment, in whole or in part, on the basis that it is inconsistent with the Charter in either its purpose or its effects;
  2. A procedural or evidentiary rule, whether created by statute or common law, on the basis that it infringes a right guaranteed by the Charter; and
  3. If the agents of the state violate the accused’s Charter rights with their individual conducts.

Only a court of competent jurisdiction, a court that has jurisdiction over the person, the subject matter and the remedy being sought, can grant a constitutional remedy. Generally,  the trial court, whether the Ontario Court of Justice or the Superior Court,  is the proper forum in which to address Charter issues, as it is best situated to take into account the entire factual context in making a  constitutional determination.


The burden of proving a breach of the constitution on a balance of probabilities is borne by the applicant. Whether the accused is seeking to have legislation declared invalid under the Charter for being inconsistent with the Charter, or whether the accused is alleging an infringement of a right guaranteed by the Charter, that would be the procedure. Evidentiary foundation in order to support the allegation of a constitutional violation should also be provided by the applicant.

Challenging Legislation

An unconstitutional law cannot be the basis for conviction of an offence because the Charter says,   “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

For such a constitutional application, a notice of application and constitutional issue has to be prepared. The document should contain the grounds to be argued, the constitutional issues to be raised, the constitutional principles to be relied upon, and a list of the evidence to be tendered at the hearing. If in the Superior Court of Justice, an application record must be served as well.

The notice is to be served no less than 30 days in the Superior Court of Justice and no less than 15 days in the Ontario Court of Justice before the application is to be heard. Considering that a successful application to have legislation declared unconstitutional would have significant ramifications for the accused’s case, as well as many other prosecutions, the service requirements  are stretched by the Rules. Notice and all supporting materials are to be served on the Constitutional Law Division of the Ministry of the Attorney General for Ontario and the regional office of the Attorney General for Canada (Department of Justice), in addition to the prosecutor with carriage of the proceedings. A factum is to be filed along with an application record containing the following:

  1. A copy of the information or indictment;
  2. A transcript of any relevant earlier proceedings;
  3. An affidavit by, or on behalf of, the applicant; and
  4. Any other supporting materials.

The affidavit should contain the particulars of the charge and “a statement of all facts material to a just determination of the constitutional issue that are not disclosed in any other materials filed in support of the application.”

As the  court will not entertain a constitutional application in a factual vacuum, the documentation set out in the Rules is the bare minimum needed to advance a constitutional challenge.  A successful application would generally require far more supporting material, like  evidences of adjudicative and legislative facts. Adjudicative facts are about the immediate parties to the litigation, providing the factual context for the decision. Legislative facts establish the background and history of the legislation and explain the validity or purpose of the provision along with its  social, economic, and cultural context.

If it is proved that the legislation contravenes the Charter, the Crown then has to prove that the violation constitutes a reasonable limitation on the applicant’s right or freedom, according to section 1 of the Charter.