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Charter Procedures Part 3.docx

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University of Waterloo
Legal Studies
LS 202
Frances Chapman

Part 3: Procedure and Evidence  Election o Summary offence, it will be tried before a Provincial court judge (appointed and paid for by the province) o Indictable offence, the accused can select a provincial court judge alone, a higher judge court alone, or judge and jury (these are Superior Courts of Justice) o No choice??  Preliminary Inquiry o Justice determines if there is sufficient evidence for an accused to go to trial o Provincial court judges o Some evidence of each element o Purpose o Prosecution o Defence o Additional charges/reduction of charges  Presumption of Innocence o Charter s. 6 in that a person shall be deemed not guilty of the offence until he is convicted of discharged o Beyond a reasonable doubt o Presumption of Innocence - But it is Great to have Facebook Evidence  Equality Under the Law o 15 of the Charter provides that every individual is equal before and under the law  Burden of Proof o "ultimate" burden of proof is always on the Crown as it is their responsibility in law to prove each and every essential ingredient of the offence charged o Evidence as a whole indicates a reasonable doubt, then the accused has the right to the benefit of that doubt and deserves an acquittal o Evidence as a whole indicates a reasonable doubt, then the accused has the right to the benefit of that doubt and deserves acquittal o Evidentiary burden  Presenting evidence and to point out evidence that suggest that certain facts exist  Compellability o Accused persons will not be forced to testify against themselves at trial o Cannot be commented  The Crown in their closing arguments can not say that they are guilty because they did not take the stand o The accused does testify, their evidence can be used against them if it benefits the Crown o Charter s. 11 which provides that an individual cannot be "compelled to be a witness in proceedings against that person in respect of the offence" o S. 13 of the Charter provides that "a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence"  Perjury: is basically lying on the stand  Witnesses o Most basic method of compelling a person to testify is a subpoena  A document issued by the court compelling a person to attend legal proceedings as a witness to give testimony. This request is made under threat of penality  Documents  "material evidence"  Compellability - Husband or Wife o "incompetent witness" or a witness that is not required to testify, for both the Crown and defence  4(3): no husband or wife is made to say any discussion that were talked about together o Documents, visual observations are not included in the 4(3) o Volunteer?? o An adverse inference may not be made under s. 4(6) of the Canada Evidence Act in that "the failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution  Just because your wife/husband doesnt come up, does not mean the Crown can bring this up in the closing statement to use against the accused o Common law spouses  Separated?? It is more of a grey area  Voir dire: trial within a trial  Point of a legal marriage: when did the incident happen, before or after  Marriage takes place after the offence but before trial  Divorce  Testimon
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