CRIM 330 Lecture Notes - Lecture 1: Professional Responsibility, Gambling, Summary Offence

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INTRODUCTION: KEY CONCEPTS
i. Legal Guilt vs. Factual Guilt
- Criminal justice system is fundamentally concerned with legal guilt as opposed to factual
guilt
o Legal guilt = proof of actus reus and mens rea with admissible evidence
o Factual guilt = proof of actus reus and mens rea with no concerns re:
admissibility of evidence
- Legal guilt is concerned with balancing a number of important values:
o Pursuit of truth = did this happen?
o Ensuring a fair trial
o Deterring police misconduct
o Preserving overall integrity of the justice system
- Factual guilt is concerned with only one value: pursuit of truth
- In most cases legal and factual guilt coincide
- However, in come cases they won’t coincide…
o An accused may be factually guilty but not legally guilt, so there is no
conviction and punishment
- Example: A confession is presented to the crown by torture will be
found not guilty
o This happens when we compromise the value of pursuit of truth in favor other
important values (fair trial, deterring police misconduct, preserving the
integrity of the justice system)
- Bottom Line: our criminal system isn’t just about the pursuit of truth… it is concerned
with a qualified search for truth
ii. The Source of the Law of Criminal Procedure and Evidence: Codified vs. Common
Law
- Law comes from one of 2 main sources: legislatures (statutes/legislation) and judges
(case law/common law)
- The law of criminal procedure is largely found in codified form in the Criminal Code of
Canada (CCC)
- The law of evidence for criminal cases is found mainly in the common law (although
there are some important relevant statues such as the Canada Evidence Act)
iii. The role of Prosecutors (Crown Counsel)
- In principle their role is objective
- Duty is to see that justice is done… NOT to simply get convictions
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- This is a professional responsibility… in BC it is set out in section 18 of the Profession
Conduct Handbook:
18. When engaged as a prosecutor the lawyer’s prime duty is not to seek a conviction,
but to see that justice is done. The prosecutor exercises a public function involving
much discretion and power, and must act fairly and dispassionately. The prosecutor
should not do anything that might prevent the accused from being represented by
counsel or communication with counsel and, to the extent required by law and
accepted practice, should make timely disclosure to defence counsel or to an
unrepresented accused of all relevant facts and known witnesses, whether tending to
show guilt or innocence, or that would affect the punishment of the accused.
- Generally lawyers are used to do prosecution work
o However, non-lawyers are sometimes use to prosecute summary conviction
criminal offenses and quasi-criminal offences (Ex: gets speeding ticket,
police officer is non-lawyer)
- There are 3 basic models of gov’t use for prosecutors
o Full-time employees Crown Counsel
o Contract prosecutors full time or part time contract/ not permanent
employees Ex: Working in Kamloops for 1 year/2 years
o Ad hoc prosecutors form of contract prosecutors senior and experienced
prosecutors usually used for high profile cases person that has been
arrested/investigated, a member of the gov’t, because there might be a conflict
of interest if it’s a contract prosecutors, someone with no connection to the
gov’t - rare but when used its for important reasons
iv. The Role of Defence Lawyers
- Advocate for the interests of the accused
- Not concerned with justice overall or even-handedness in any way… sole job is to
advocate on behalf of the accused
- Can’t do illegal or unethical things… but otherwise can do anything to get an acquittal
- It’s important to consider why the role of defense lawyer is so different from that of the
prosecutors…
PART I: PROCEDURE
i. Determining the Court: Classification of Offences, Elections and Jurisdiction
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1. Introduction
- One of the first matters to determine is the court in which the prosecution will occur
- There are a number of factors relevant to this determination:
o Classification of the offence
o Election by the accused (where applicable)
o Jurisdiction of the court (geographical; time limitations)
2. Classification of the Offence
(a) General
- 3 categories: summary conviction, indictable, hybrid
- classification determines procedure for prosecuting the offence
- Note that summary conviction procedure is used for both summary conviction criminal
offences as well as non-criminal (quasi-criminal) offences
(b) Indictable Offences
- Only created by federal government
- Applicable sentence (generally maximum penalties) set out in the CCC section..
Examples:
209. Every one who, with intent to defraud any person, cheats while playing a game or in
holding the stakes for a game or in betting is guilty of an indictable offence and liable to
imprisonment for a term not exceeding 2 years
235. (1) Every one who commits first degree murder or second degree murder is guilty of
an indictable offence and shall be sentenced to imprisonment for life
- Section 743 Default: if no maximum sentence is specified for an indictable offence then
the maximum is 5 years:
743. Every one who is convicted of an indictable offence for which no punishment is
specially provided is liable to imprisonment for a term not exceeding 5 years
(c) Summary Conviction Offences
- Can be created by the federal gov’t (criminal summary conviction offences), but also
provincial and municipal governments (non-criminal summary conviction offences)
- For criminal summary conviction offences the wording in the CCC section with specify
that it is a summary conviction offence (“ punishable on summary conviction”)… example:
83. (1) Every one who
(a) Engages as a principal in a prize fight,
(b) Advises, encourages or promotes a prize fight, or
(c) Is present at a prize fight as an aid, second, surgeon, umpire, backer or reporter, is
guilty of an offence punishable on summary conviction
- Default sentence: “... not more than $2000 or to imprisonment for 6 months or to both”...
except where otherwise provided by law
(d) Hybrid Offences
- Allow prosecution by way of indictment or summary conviction process
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