CRIM 131 Lecture Notes - Lecture 8: Mens Rea, People V. Turner, Eyewitness Identification
6 Jun 2018
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Lecture 8: Criminal Prosecuting and sentencing Monday 12th March
Chapter 8: The Prosecution of Criminal Cases
The Pre-Trial Process
The Role of the Crown Counsel
●Lawyers who represent the Crown (or government) in crown and who are responsible for
prosecuting criminal cases
●Represents the government (by committing a crime you are harming the state, so the
government stands as a victim of the crime)
●Responsibility of prosecuting cases is shared between provinces and federal government
Provincially appointed Crown attorneys: prosecute Criminal Code offences
Federally appointed Crown attorneys: prosecute violations to federal statutes
Activities:
●Advice the police officers at pre-charge stage (if they should recommend a
charge)
●Prepare for trial (arguments, ensuring evidence is appropriate)
●Prepare for post-trials appeals
●Plea negotiations
●Develop trial strategies
●Managing witnesses
●Arguing conditions of bail
●Recommending sentences to court
●Appealing sentences deemed too lenient
●Must remain up-to-date on changes in law and judicial precedent, including
decisions in Charter cases (legal developments)
●Exercise a considerable amount of discretion in case proceedings, this power has been
reaffirmed by the Supreme Court of Canada
●Crown presents the state’s case in an attempt to prove beyond reasonable doubt that
the accused is guilty of the offence with which he or she has been charged
●Challenged with increasing workload
●Increasingly dealing with sensitive cases, which may involve the use of new technologies,
requiring prosecutors to have specialized knowledge
●There is case attrition so not all cases proceed through the whole CJS
Laying Information and Laying a Charge
●Police lay information, which is ratified or rejected by the Crown
●Discretion by police and the Crown
EXCEPTION: In BC, Quebec, and New Brunswick
●Police recommend charge
●Crown lays charge
Information- document that briefly outlines an allegation that a person has contravened a
criminal law in a certain location during a specified period. Multiple offences are divided into
separate courts.
On their recognizance- when accused persons are released, without their case being brought to
a justice of peace (JP), which means they are responsible for ensuring they appear in court on
the designated date
●Information may be laid before or after the suspect has been informed
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●After receiving the information, the JP can agree and issue an arrest warrant or a
summons that directs the named person to appear in provincial court on a specified
date (JP might not agree, but this occurs in very rare cases)
●The police and Crown must exercise considerable discretion in deciding whether to lay
charges or not (not laid in ⅓ of cases)
○Charges are not laid in may cases (uncooperative victims, under age of 12,
evidence must be sufficient and legally obtained, workload, expense)
●Legal (reliability and likely admissibility of available evidence and credibility of witnesses),
political (need to maintain public’s confidence in the CJS), and administrative (workload
and case volume of the Crown’s counsel office) factors may also influence the decision
to lay charges
●In BC, Crown must give their approval before charges are laid
●Not all crime victims support charges can be filed (if they refuse to cooperate they can’t
use these specialized services)
○More empathy as to understanding victimization
○More application of psychology (understanding the impacts of victims and
interviewing techniques)
Compelling the Appearance of the Accused in Court
●After charges are laid, next there has to be assurance that the accused will show in court
○By arresting and placing the person in remand custody
○By allowing person to remain in liberty with the promise to appear on the court
date
●If person does not show up, the judge can issue an arrest warrant
Appearance Notice
●Issued when the offence is not that serious and when there is no reason to believe that
the accused won’t show up in court
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●Appearance notice sets out details of allegation against the accused person, provides
the court data, and warns the accused that failure to appear in court is a criminal
offence
Identification of Criminals Act- for electable or indictable offences, the accused must go to a
location to be fingerprinted
Summons
●Issued by a JP
●States the allegation and directs person to appear in court on a certain day
●Fingerprint demand is also made
Youth Criminal Justice Act (YCJA)- statement of youths’ right to counsel
●Usually served by a police officer
●If accused fails to appear in court, judge can issue a warrant for their arrest and may be
criminally charged for this too
Arrest
●Depending on the situation, the police can arrest and then lay the information
OR
●The police can seek an arrest warrant from a JP
●After, a decision is made whether to release the accused from police custody or keep
them in custody
Immediate release might not occur if:
1. Charge pertains to a serious indictable offence carrying a maximum sentence of more
than 5 prison years
2. Police have reasonable grounds to believe the person will not appear in court
3. Police have reasonable grounds to believe that it is necessary, in the public interest, to
detain the accused
Public interest- the need to establish the person’s identity, to secure and preserve evidence, or
to prevent the continuation or repetition of the offence or the commission of another offence
Release by the Police
●When arrest is made, the police have authority to release some accused persons from
police custody; some circumstances might require a bail hearing before a JP or a judge
●When offence is summary or elective, arresting officer can simply issue an appearance
notice or explain that a summons will be sought
●For indictable offences carrying a maximum penalty of five years or less, office in charge
of police lockup has the authority to release the person from police custody
●Several means are available for officer to compel accused’s appearance in court
(promise to appear, undertaking to appear, and a recognizance not exceeding $500
with or without deposit)
Judicial Interim Release (Bail)
What is it? The release by a judge or JP of a person who has been charged with a criminal
offence pending a court appearance
Section 11c of the Charter: any person charged with an offence has the right ‘not to be denied
reasonable bail without just cause
Judicial Interim Release- requires judges to release accused person on bail unless the Crown can
show why bail should be denied
Show cause Hearing- the Crown demonstrates the detention of the accused until the trial date is
necessary
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