Law 2101 Lecture Notes - Lecture 10: Consensual Crime, Determinative, Strip Search
3 May 2018
School
Department
Course
Professor
Tuesday, November 7, 2017
Criminal Procedure
Investigation!
-Responsibility rests largely with the police!
-Most investigations commence with a complaint from a member of the public, but
police are sometimes proactive!
•Consensual crime is a crime where both parties where it is happening (Drugs,
prostitution)!
-No interest in reporting the matter!
-Generally, it is the police who decide whether to lay charges (based on reasonable
grounds to believe the suspect has committed an offence)!
•Wishes of victims considered but not determinative!
-In america those who crime was against has veto, but in Canada, the victim
does not have veto and sometimes the police will take it into consideration!
-Domestic violence: Person reports but doesn’t want it to go further!
•Private prosecutions rare and subject to public control!
-Right in Canada to lay charges on someone if police do not lay charges!
-Crown has ability to take over!
Prosecution!
-Responsibility rests largely with Crown Attorney’s offices!
•All lawyers for the government are lawyers for the queen or the crown!
•Adversarial Justice system: Corwn attorneys dont do this. They are quasi-judicial!
-Crowns are quasi-judicial officers whose task is to achieve justice, not obtain a
conviction!
•Although they are frequently the same thing!
-Crowns screen cases and prosecute only those cases that are in the public interest
and for which there is a reasonable prospect of conviction
•Reasonable chance that you will win (government)!
•Someone charges with minor offences, may have committed the small offence
because they were under stress, but wont be pursued due to public interest !
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Tuesday, November 7, 2017
•Sometimes goal is to seek an acquittal !
-Must disclose case to the accused in advance of trial!
•Before you have to make any meaningful decisions about what to do, the crown
will give you all the evidence they have to prosecute you. SO you have maximum
opportunity to respond!
Defence!
-Normally performed by private lawyers paid personally by the accused or by
Legal Aid
-A narrower role, directed almost exclusively at protecting the interests of the client!
•Subject to duties owed to the court!
-Dont use known false evidence!
•Job is not to seek justice, but to protect clients interests !
-Can assume an almost purely adversarial role towards the prosecution!
•Because the odds are against the prosecuted!
-Funding is infinitely higher compared to the defendant, unleleved playing field!
-No duty to disclose the defence case to the prosecution!
•Can spring stuff on them!
Trial!
-Most trials are before judge alone in Ontario Court of Justice!
-Some more serious charges are before judge alone or judge and jury in Superior
Court of Justice (Murder)!
•In a judge alone trial the judge decides the facts!
-Only Judge decides the issues in dispute!
•In a jury case the jury decides the facts. The judge directs them as to the relevant
law!
-Judge instructs the jury on the legal responsibilities but Jury decides the facts !
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Tuesday, November 7, 2017
-Trial options determined by the nature of the alleged offence!
-Three types of offences:!
-Indictable!
•Felony — Accused decides if they want judge or jury!
•Have right to preliminary inquiry and is used to determine if a conviction could be
obtained!
-Summary conviction!
-Hybrid!
Indictable Offences!
-More serious offences are indictable offences!
•Accused normally has the option of judge alone or judge and jury!
•Accused normally has the right to have a preliminary inquiry!
-Court process meant to screen out frivolous prosecutions and afford the
accused an opportunity to probe the Crown’s case!
-If a preliminary inquiry is held, the trial occurs in Superior Court!
Summary Conviction Offences!
-Most minor, often nuisance, offences!
-Relatively light punishments!
•Often maximum sentence is 6 months
-One trial option: judge alone in the Ontario Court without a preliminary inquiry
Hybrid Offences!
-Biggest category!
•Can go in either!
-Offences for which the prosecution gets to choose whether to proceed by indictment
or by way of summary conviction!
-Once prosecution chooses, accused has the trial options (if any exist) for the
applicable category described above!
%3
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Document Summary
Most investigations commence with a complaint from a member of the public, but police are sometimes proactive: consensual crime is a crime where both parties where it is happening (drugs, prostitution) Generally, it is the police who decide whether to lay charges (based on reasonable grounds to believe the suspect has committed an o ence: wishes of victims considered but not determinative. In america those who crime was against has veto, but in canada, the victim does not have veto and sometimes the police will take it into consideration. Domestic violence: person reports but doesn"t want it to go further: private prosecutions rare and subject to public control. Right in canada to lay charges on someone if police do not lay charges. Responsibility rests largely with crown attorney"s o ces: all lawyers for the government are lawyers for the queen or the crown, adversarial justice system: corwn attorneys dont do this.
