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Lecture 5

SOCY 388 Lecture Notes - Indictable Offence, Mens Rea, Open Court Principle
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21 Pages
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Fall 2018

Department
Social Sci, Edu and Soc Work - Sociology
Course Code
SOCY 388
Professor
Nicole Myers
Lecture
5

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SOCY 388 WEEK FIVE CRIMINAL PROSECUTION
LECTURE
Outline
Are courts really adversarial?
Critical decisions in prosecution process
Lower courts the workhorses of the system
Court delay
R v. Jordan
Alternative Measures
Juries
Are Courts Adversarial?
Not really the majority of convictions in our courts result from a guilty plea
o The crown does not have to prove guiltiness beyond a reasonable doubt
o Guilty pleas are often encouraged by the Crown
o Puts the victim through the trial experience
Victims usually do not want to go through a trial
o We have to be worried about coercion
Are lawyers coercing defendants to plead guilty even if they aren’t?
(Example: wrong person; alternative viewpoint to be heard; legitimate
defence)
Why would someone want to plead guilty?
o Get out of pre-trial detention
Some individuals are given probation as a result of their conviction
many will take a probation over being held in pre-trial detention
o Lawyers are regulars in the courtroom
Duty Counsel and Crown are in the same courthouse everyday
Create relationships with each other get along with each other
(Example: Agree with them in this case because next week, you’ll
have to be back next week for another case)
o Relationships between lawyers and clients are transitionary
Courtroom Workgroup
o A collection of people who work together within the court
Assembly line justice
o “Turning the cases through”
“Confidence Game”
o Intangible
o Justify Fee
Cooperation
o Facilitate Performance
o Impression Management
Defense as “Double Agent”
What Are Courts Like
Un-bureaucratic Organization
o Rational Organization
o Hierarchical Control / Accountability
o Central Administration
Who is really in charge of the court? Well, no one, really
Judges have judicial independence
Crown and Defence have superior others who they have to
adhere to
System of Exchange
o Cooperation
o Mutually benefit
o Shared cultural knowledge / interests
Incongruence
o Criminal Justice System Goals
Due process
Case Resolution
Distribution of Justice
o Workgroup / Organizational Goals
Rapid case processing
Efficient end to working day
Avoidance of time-consuming processes
o The court is NOT operating as to its legal definition
Things to Consider
What are implications of unelected officials ruling on the legality of legislation?
To what extent are courtroom actor’s behaviours governed by their formal roles and
informal practices?
What are the implications of differences is legal representation quality and
affordability?
Whose interests are represented / reflected in the legal profession?
Critical Decisions in the Prosecution Process
The decision to proceed criminally
o Prosecutorial discretion
Bail
Crown (if a “hybrid”) offence (summary / by indictment) procedure and maximum
sentence
Accused (if indictable, other than a few where / how to be tried)
INDICTABLE OFFENCES Offences where the defendant has the right to
trial by jury
SUMMARY OFFENCES Offences in some common law jurisdictions that
can be proceeded against summarily, without the right to a jury trial
Criminal Courts
o Provincial Court (Ontario Court of Justice)
Judge alone (95-99% of cases)
o Superior Court (Federally Appointed Judges)
Judge alone
Judge and Jury
Criminal process is not a simple set of automatic / sequential steps
How Much Work Do Our Lower Courts Do? (Canada 2015/2016 Chart from Lecture)
What do you think are the top 5 offences being processed in Canada’s courts?
o Theft, Impaired Driving, Failing to Comply, Common Assault, Failing to Comply
Probation (These five offences make up 50% of the offences being processed in
Canada’s courts).
How many cases do you think are completed in one year?
o 342,274
How many charges do you think get processed?
o 1,120,659
How long does it take to dispose of a case?
What makes a case take longer?
What proportion of accused are found guilty? Acquitted?
o Of all of these charges (1,120,659) 40.7% are found guilty
o Of all of these accused 3.3% are acquitted
Time to Case Disposition
In 2015/16 median days to disposition
o 112days
Added complexity increased time
o Multiple charges
o Seriousness of offence
o Administration of justice
o Trials
o Failing to Appear
R. v Jordan 2016 SCC 27
How long is an acceptable amount of time for a case to go to trial
SCC ruled 5-4
o Five courts were in the majority, 4 courts were in the minority
The charges against Jordan were stayed they found section 11 of the
Charter against Jordan were in violation
SCC revamped the number of months it MUST take for an accused to
make their way through court

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Description
SOCY 388 WEEK FIVE CRIMINAL PROSECUTION LECTURE Outline Are courts really adversarial? Critical decisions in prosecution process Lower courts the workhorses of the system Court delay R v. Jordan Alternative Measures Juries Are Courts Adversarial? Not really the majority of convictions in our courts result from a guilty plea o The crown does not have to prove guiltiness beyond a reasonable doubt o Guilty pleas are often encouraged by the Crown o Puts the victim through the trial experience Victims usually do not want to go through a trial o We have to be worried about coercion Are lawyers coercing defendants to plead guilty even if they arent? (Example: wrong person; alternative viewpoint to be heard; legitimate defence) Why would someone want to plead guilty? o Get out of pre-trial detention Some individuals are given probation as a result of their conviction many will take a probation over being held in pre-trial detention o Lawyers are regulars in the courtroom Duty Counsel and Crown are in the same courthouse everyday Create relationships with each other get along with each other (Example: Agree with them in this case because next week, youll have to be back next week for another case) o Relationships between lawyers and clients are transitionary Courtroom Workgroup o A collection of people who work together within the court Assembly line justice o Turning the cases through Confidence Game o Intangible o Justify Fee Cooperation o Facilitate Performance o Impression Management Defense as Double Agent What Are Courts Like Un-bureaucratic Organization o Rational Organization o Hierarchical Control / Accountability o Central Administration Who is really in charge of the court? Well, no one, really Judges have judicial independence Crown and Defence have superior others who they have to adhere to System of Exchange o Cooperation o Mutually benefit o Shared cultural knowledge / interests Incongruence o Criminal Justice System Goals Due process Case Resolution Distribution of Justice o Workgroup / Organizational Goals Rapid case processing Efficient end to working day Avoidance of time-consuming processes o The court is NOT operating as to its legal definition Things to Consider What are implications of unelected officials ruling on the legality of legislation? To what extent are courtroom actors behaviours governed by their formal roles and informal practices? What are the implications of differences is legal representation quality and affordability? Whose interests are represented / reflected in the legal profession? Critical Decisions in the Prosecution Process The decision to proceed criminally o Prosecutorial discretion Bail Crown (if a hybrid) offence (summary / by indictment) procedure and maximum sentence Accused (if indictable, other than a few where / how to be tried) INDICTABLE OFFENCES Offences where the defendant has the right to trial by jury SUMMARY OFFENCES Offences in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial Criminal Courts o Provincial Court (Ontario Court of Justice) Judge alone (95-99% of cases) o Superior Court (Federally Appointed Judges) Judge alone Judge and Jury Criminal process is not a simple set of automatic / sequential steps How Much Work Do Our Lower Courts Do? (Canada 2015/2016 Chart from Lecture) What do you think are the top 5 offences being processed in Canadas courts? o Theft, Impaired Driving, Failing to Comply, Common Assault, Failing to Comply Probation (These five offences make up 50% of the offences being processed in Canadas courts). How many cases do you think are completed in one year? o 342,274 How many charges do you think get processed? o 1,120,659 How long does it take to dispose of a case? What makes a case take longer? What proportion of accused are found guilty? Acquitted? o Of all of these charges (1,120,659) 40.7% are found guilty o Of all of these accused 3.3% are acquitted Time to Case Disposition In 2015/16 median days to disposition o 112days Added complexity increased time o Multiple charges o Seriousness of offence o Administration of justice o Trials o Failing to Appear R. v Jordan 2016 SCC 27 How long is an acceptable amount of time for a case to go to trial SCC ruled 5-4 o Five courts were in the majority, 4 courts were in the minority The charges against Jordan were stayed they found section 11 of the Charter against Jordan were in violation SCC revamped the number of months it MUST take for an accused to make their way through court What is an unreasonable delay? Changed legal framework Numerical Ceilings o 18 months provincial court o 30 months Superior Court o When these numerical ceilings are breached, a person is stayed of their charges UNLESS the Crown can prove that the case was extremely complicated and needed more time to proceed Criminal Code Alternative Measures 1996 (S.717) Not inconsistent with the protection of society and appropriate.. [considering needs of offender and interests of society and victim] Approved program Offender takes responsibility for the offence o Accused does not plead guilty but takes responsibility for the event that occurred Offender has to agree with them Record kept of participation Ontario Direct Accountability Measures to hold offenders directly accountable to their community rather than going through the traditional court process. New strict guidelines will ensure that decisions regarding direct accountability measures are made earlier in the process before the first appearance, if possible. Restorative Justice Alternative Approach Typical approach Conference / circle (Victim, offender, members of the community) Goals: Resolution of conflict (Not punishment of the offender) Role of the state o Similarity of treatment (proportionality not relevant?) o Safeguards for everyone Generally liked by offenders, victims, and community Issues to consider: o Reoffending rates: No obvious overall success of restorative programs o Should not think of reoffending as the critical goal o Effects of recidivism at best mixed (why expect otherwise) If the Criminal Process is Invoked Getting the accused to court o Tell accused to appear o Arrest and Release Take to court for bail hearing
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