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March 11, 2014 - Poli Sci 3NN6.pdf

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McMaster University
Political Science
Greg Flynn

Last Updated: 3/21/14 4:49 PM 2014-03-213NN6 C LASS N OTES FOR : P OLI S CI 3NN6 McMaster University, Winter 2014 T UESDAY , M ARCH 11, 2014 Charged with an offence 1. Section 11 (a) To be informed without unreasonable delay of the specific offence; (b) To be tried within a reasonable time; (c) Not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) To be presumed innocent until proven guilty according to law in a fair and pu blic hearing by an independent and impartial tribunal; (e) Not to be denied reasonable bail without just cause; (f) Except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum puni shment for the offence is imprisonment for five years or a more severe punishment; (g) Not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) If finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) If found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. 2. Who can claim benefit a. Everyone • “Any person charged with an offense” - Includes every single person in Canada whether Canadian citizen or otherwise, entitled to the rights under section 11. • This section is the ONE exception to the rules of corporations. b. Corporations • It involves corporations, a person has been extended to include corporations • Can’t give a corporation bail • A corporation can suffer delay in terms of leading up to a trial • The right to remain silent, the right to the presumption of innocence also apply to corporations 3. Limitations of Section 11 a. Section 33 • Significant power that can be imposed • “Presumption of innocence” can be thrown out if the gov’t decides the notwithstanding clause • If Gov’t (Quebec in 1985 extended over all rights over every single statute passed but the Quebec gov’t) - can have implications b. Section 1 • If can demonstrate, do not get the benefit of section 11 c. Section 11 - “Charged with an offence” • There is an inherent limitation presuming you have been charged with an OFFENSE. Angie © McMaster University 1 Winter 2014 Last Updated: 3/21/14 4:49 PM • You can be arrested without being charged • Cannot be charged without being arrested • Have to be physically charged with an offense 4. Definitions a. Charged Formal written complaint made against an accused and a prosecution has been initiated - Piece of paper that has to be issued - Until this charge has been assigned, ev en if it has not been delivered yet. - Triggers application of system against you b. Offence Any breach of the law to which a penal sanction is attached - The possibility that you ‘might’ go to prison as a result of being found guilty of the offense R. v. Wigglesworth [1987] 2 SCR 541 FACT - Mr. Wigglesworth was at the time an officer employed with the RCMP. Ø Accused of assaulting a prisoner during the course of an investigation Ø Charged with an offense under the RCMP act (not criminally) Ø He was tried by the police tribunal and found guilty and fined a total 300 dollars. Ø Mr. Wigglesworth could have been imprisoned under 1 year under the provisions of the RCMP act Ø After he was found guilty, he was then sub sequentially charged criminally Ø Sought to have the double charges dismissed under DOUBLE JEAPORDY Ø Trial judge dismissed this argument Ø The superior court overturned the dismissal Ø Court of appeal agreed Ø Appealed to the Supreme Court of Canada Ø Over whether he had been charged with an offense Ø JUSTICE WILSON à “an individual has been charged if the proceeding is ONE OF TWO THINGS o BY ITS NATURE (a criminal proceeding) o If it may lead to true penal consequences (i) By Nature Intended to promote public order and welfare within sphere of public activity - Law with a sanction attached, where the offense was intended to promote public order and welfare with a public sphere of activity. - PUBLIC SPHERE IS IMPORTANT à It meant where private activity was concerned; it did not engage the nature of being criminal a nd therefore you did not obtain the benefit of section 11. (ii) True Penal Consequences - Include imprisonment - Madame JUSTICE à When it includes circumstances that had just a fine or monetary punishment, if punishment by this magnitude was intended for the purpo se of redressing the wrong to society at large, rather than the maintenance of some internal discipline procedure. Ø FACTS: 300 dollar fine was indicative of the private sphere of activity, payable to the RCMP and not the general revenue fund was indicative that it did not fall within true penal consequences Ø Had been charged with an offense, but his criminal charges were dismissed by the code due to double jeopardy. Angie © McMaster University 2 Winter 2014 Last Updated: 3/21/14 4:49 PM 5. SPECIFIC RIGHTS (a) Informed without unreasonable delay - We know from section 10, you have to be provided with sufficient information to be able to get informed counsel R. v. Delaronde [1997] 1 SCR 213 Ø (DELARONDE) Lived outside of the city of Montreal, known as Oaka. Ø Stand off between the members of an aboriginal band and the federal armed forces over the efforts of a development agency to build a golf course on aboriginal land Ø Mr. Delaronde was an occupant of the reserve in question. Charged with a series of offenses by the police, but as a result of their inability to access the aborigina l community, were not able to advise him of these charges until some minutes later when he was arrested upon leaving the reserve. Ø In order to determine whether something is unreasonable delay, there are 4 factors. i. Delay attributable to accused (not violation) ii. Delay attributable to police (will be a violation) Ø There were other means that the police could have used to inform Delaronde to tell him he was accused. Ø The police have to be active ! iii. Institutional resources (if there are large resources but the police do not use it, will be a violation) iv. **Was there prejudice suffered to accused?(relevant to 11.b. if the accuse had acted in a fashion to him not having evidence at trial) Because they found that the dela y was attributable to the police; but because he had suffered no prejudice as a result of this 20 month delay (b) Trial within a reasonable time - You wan to try to minimize the amount an accused might be under pre -trial custody - If you do not make jail you sit in jail until the trial occurs - Try to minimize the anxiety held to the accuse, do not want to cause mental suffering to innocent R. v. Smith
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