WDW101Y1 Lecture Notes - Crown Attorney, Indictable Offence, Summary Offence

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5 Feb 2013
- Parliament makes substantive and procedural laws (federal: define crime and create legislations e.g. mens rea requirement)
- Policeinvestigate crime, 1st point of entry in to cjs, conduct investigation, do things completely independent of crown attorneys, gather evidence and becomes
witnesses in the process
- Crown attorney present prosecution case, aka district attorney or prosecutor, represent the state as all crimes are against the state, the present evidence, objective
is to convict
- Defence counselrepresents defendant
- Defendant, not always represented by counsel, sometimes they run their own trial, even with counsel they play an important they make strategic decisions, e.g.
even represented have absolute right to decide if they want to plead guilty or not, or if they want to testify or not
- Judge/jury decision makers, have huge amount of power and discretion in system, just judge alone make decisions of what the facts are and what the legal
conclusions are, if jury is present its gets divided but judge always make decisions on legal conclusion and jury on factual decisions
- Each one plays a different role in the system
- Different rules apply to each and restrictions/requirements for what to do
PACKER, limites of criminal sanction crime control vs. Due process
- Crime control
o Repression of crime is the most important function of the criminal process; deterrent, reduce crime that we have, if you adopt this theory as the defining
theory of cjs take the views that allowing crime to go unpunished it the worse thing to do, ultimately lead to system of lawlessness
o If laws go uneforced = general lawlessness,
o Focus on efficiency in the system = apprehend, try, convict, and punish; objective of reducing overall crime of society
o Premium on speed and finality; want to make sure decisiosn are made are final and certainty of result so a lot of appeals wont’ take place, importance of
speed goes through system and decision at the end is final
o Speed requires informal and uniform process; can’t have formal system and lots of hurtles if you want to get people through the system asap, system is
going to be informal and relatively uniform process that everyone goes through so no issues of individual treatment of system
o Finality requires minimum chance for review/appeal; issue of finality, not going to let people appeal anytime they want, have strict rules around when
people can appeal, moreinterested in finality, and having decisions standing and not revisted
o Allow police and crowns to screen out “probably innocent” people; a lot more discretion to screen cases in and out of the system, let them screen out
those that are probably innocent, because of not enough resources to try everybody, need officials to have power to screen out those that are probably
not guilty and get to those that are probably guilty
o Taken to its limit, supports the presumption of guilt for those left other police/crown screening; if you give the crown and police right to screen out
people those that are probably innocent and require people to go through the system due to probability of guilt, and want to get to end result asap,
much more efficient to get them through the system than presumption of innocent
o Canadian system is not designed this way
- Due Process (most constitutional countries)
o Stress the possibility of problems (eg. Problems of ID evidence; cross-racial identification; high stess id; inflammatory evidence); avoid mistakes,
recognition that the system if never going to be perfect but stride toward right results...Canada is having stricter rules for ID identification...idea of
flashbulb memory that you will register an accurate memory of it after a period of time and recall it accurately but we now know that stress impairs us to
create a memory in the first place, memories can be more or less reliable but stress impairs the ability to create a memory in the first place, questions the
accuracy of any memory created in a stressful situation; there is inclination of most people to focus on the most stressful part of stressful situation so if a
weapon is involved most people would focus on the weapon or graphic injury; people in general are really bad at recognizing people and strangers’ facial
features and appearances (e.g shirt color); in photo line-up really bad at distinguishing facial features of those not in the same race at us, by wanting to
get the right results you create nuance rules about what we allow people to say and testify because accuracy is so important; inflammatory evidence:
exclude evidence if we believe jury will become biased because of that piece of evidence
o Emphasis on formal, ,adversarial process
o Demand for finality is lowreview available indefinitely ; lots of avenues of appeal,, no conviction/acquittal will ever be final...Canada is closer to this
spectrum, fairly liberal right to appeal
o Focus is on protecting the factually innocent; distinction between legal guilt and factual guilt, factual guilt = did you commit the crime, factually speaking,
were you the person the stabbed the person, etc., did you factually do what they said you did (under crime control this is important, that’s enough for
conviction), legal guilt = crown attorney can establish you guilt by way of legally admissible evidence, they may know that you did it, but not be able to
prove it through admissible evidence...under due process model you will only be found guilty if the factual findings that support guilt (actus reus and
mens rea) were made in a way that was legally fair,, this adds another layer of protection for the accused person
o See the stigma and loss of liberty resulting from criminal conviction as a dangerous state power
o Distinguished between legal guilt and factual guilt
o Only legally guilty if factual findings are made in procedurally fair manner
- Candian system
o On the continuum between the extremes of both models
o Creation of the charter of rights in 1982 pushed us further towards a due process model, we still have a numbe of features of crime control model
o But still have elements of the crime control model
Bail hearings relaxed rules of evidence, based on effiecncey, need bail hearings quickly, relaxed rules, called evidence that you wouldn’t be
allowed to have in trials, don’t get to appeal result of bail as easily other decision in cjs, ways to appeal is much more restricted
Summary conviction vs. Indictable offences; summary conviction is less serious, more streamlined and get through system quicker, which is
Crime Control Model, but for indictable offences we have due process, more procedural protection and stricter evidence control
Reduced sentence for gu ilty pleas; we award people for making system more effiecent
o On the whole we are closer to due process
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