WDW325 Lecture 2

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Woodsworth College Courses
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Jim Davies

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JAN, 17 TH2013 WDW325 Lecture 2 Abuse of Process Criminal trial: Judge, black robe red sash “Your honor” Justice of the Peace (JP): No legal training is requires, appointed - Remand court, black robe green sash, they have a limited number of things to do in the justice system, ie, remand court “Your worship”, can reside over bail hearings, has the power to issue search warrants - Remand: one your release has been determined, the next place that the case will go is Remand - There are limits to what one can and cannot do from conduct that can be abusive in the justice system Abuse of process – 2 Years - Police Abuse of Process (entrapment) - Prosecutorial Abuse of Process Courts can act to prevent the misuse of its process a. be unfair to the accused (fairness prejudice) OR b. bring the administration of justice into disrepute (integrity prejudice) Courts must step in if the circumstances violate sense of fair play or are oppressive/vexatious (don’t allow conduct that is abusive) Section 7 of the Charter Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice RECALL: 1. Imprisonment is a deprivation of liberty right 2. Law/conduct violates s.7 IF AND ONLY it is inconsistent with the “principles of fundamental justice” (includes trial fairness) Entrapment - We don’t want police to be creating crimes and criminals Basic argument – “But for the police, I would not have committed this crime” Problem with argument – still committed the actus reus with the requisite mens rea Nonetheless, it is an abuse of process for the police to entrap people into committing criminal offences R. v. Amato (1982), S.C.C. FACTS: Mr. Amato’s manager had a friend (Don) looking for cocaine; Amato said he could not help A few days later Don called Amato; Amato said he did not know where to get drugs Amato got a new job; Don called there asking Amato for drugs Don called him 15 – 20 times over 3 months Amato’s ex-girlfriend agreed to sell Don 1gm of cocaine; Amato facilitated exchange Eventually sold ½ ounce of cocaine for $1100 BUT…. “Don” was actually a police informer who was paid to introduce police to traffickers; Godwin was a police officer and Don’s handler JAN, 17TH 2013 After the $1100 deal, Don and Godwin put on pressure for more and more drugs Amato said “Look, I am not a dealer. As far as I’m concerned I’m not doing this voluntarily…I’m into this predicament because I’ve been pushed this far…as soon as this is over I don’t want to see any of the both of yous again.” Godwin calls 7 or 8 times in one day –he had people who were “expecting” drugs Godwin told Amato he would protect him; had guns for protection; also Amato if he did not come up with the drugs, his people would “come looking for him” Came up with 2 ½ ounces of cocaine -- ARRESTED Trial judge/B.C.C.A. – evidence falls short of entrapment; B.C.C.A. suggested that entrapment should not be a defence but should mitigate sentence (U.K. approach) ISSUES: (1) Should entrapment be a defence -- s. 8(3)?  Common law defence  Controls against overzealous/over excited law enforcements that leads an innocent people to commit crime (2) What constitutes entrapment? U.S. approach  criminal design originates in the mind of the government officers  use persuasion, deceitful representation, or inducement to lure the accused into the commission of a criminal act  the government is estopped (prohibited) from prosecution Canadian approach  scheme must originate with police  purpose to obtain evidence of crime not committed “info about a future crime”  bring the administration of justice into disrepute - The criminal design/plan had to originate from a government official, have to use persuasion, deceit or inducement to commit the criminal offence, the government prohibit the right to proceed trial (3) What is the appropriate remedy? dismissal of charges – acquittal quash the charges stay the prosecution  STAY OF PROCEEDINGS Not an acquittal Finding that Crown is not entitled to conviction Crown forfeits right to trial because of the conduct of police “clearest of cases” where compelling accused to stand trial would violate the … community’s sense of fair play and decency or to prevent the oppressive or vexatious proceedings (R. v. Young) (4) Was Amato entrapped? NO  Solicitation by a state agent is not sufficient (asking someone to commit an offence is not entrapment) JAN, 17 TH 2013  Persistent solicitation is not enough  Police action must be so shocking as to bring the administration of justice into disrepute R. v. Mack (1988, S.C.C.) - FACTS: Momotuik was a drug dealer in Ontario; brought to Vancouver to act as a police agent - Mack was a former drug user and dealer; had given up drugs - Momotuik called Mack a number of times to get involved in large scale importing; Mack refused - Momotuik approach Mack again; went for a walk; produced a gun and said “someone could
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