WDW101Y1 Lecture Notes - Indictable Offence, Jury Trial, Summary Offence

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Published on 5 Feb 2013
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Bail (RECAP)
- Section 515(1), presumption that jp realease accuse unless crown can show cause for conditions/detention, ladder effect for degrees of conditions, from low to
higher, and final stage is detention
- Grounds for detention; cannot detain for no reason, need to articulate one of the three grounds, primary ground (are they a flight risk), secondary ground (prevent
from committing more offences, and preserve the admin of justice...not chance but a substantial likelihood) and tertiary ground
MODE OF TRIAL
- 3 main questions
1) Will there be prelimnary inquiry
2) Where will trial be heldcourthouse in Ontario, but what kind of court, superior court of justice, Ontario court of justice?
3) Who will hear the tria?judge? Judge and jury, if judge alone is it from superior court or Ontario court
- Engage legal techniqual aspectengage practical issues for lawyers appearing before courts, have tactical decisions to make, e.g. alarming the queen might be good
for jury but not for a judge ..you question is this the type of case better to have with judge, or with jury
- CC govern when you can make these choices
Preliminary question
- When they take place, always in the Ontario court of justice, do not take place in the superior court, to get to the superior court if you want a trial at superior court
you can have preliminary inquiry in Ontario court of justice but on request, you dont’ necessary have to have preliminary inquiry
- The role of preliminary inquiry, in the old case, before disclosure, the preliminary inquiry was really where you got your disclosure, nowadays its a bit different,
preliminary inquiry wasn’t only set up as disclosure but also a mechanism for seeing if there is some evidence to send the case to trial, only those cases that had an
initial showing of merit went to trial
- Sheppard test: your case will go trial if there is some evidence upon which a properly instructed jury COULD convict, in effect it requires some evidence on each of
the elements of the offence, the minute there is some evidence, the judge @ PI has only one option which is to convict you to go trial
- When you get to PI there is usually enough evidence ...helps you test the case, not just the defence tests the case but the crown also does, when the crown reads a
brief in the morning with a solid witness but on the witness stand at PI you will know if it will still be as strong (witness might be bad in actual trial)
- Allows the defense to set up a case for trial, cross-examine witnesses, won’t attack witness on PI, but will pin them down on their story, give them the opportunity
to change their story to one story, but during actual trial you can attack them when they veer from what they said in the preliminary inquiry
- Same with charter violations arguments, cross examine police with the view of getting their evidence down with the idea to get charter violation during actual trial,
- Who get a preliminary inquiry
o Any accused charged with summary offence DOES not get pre.lim, summary conviction court = Ontario court of justice, straight summary offence = NO
pre lim (e.g. theft under $5000, cheating @ play, failing to guard your ice hole)
o Vast majority of offences are hybrid (crown gets to decide to preceed by indictment of summary conviction), in hybrid situation if the crown proceeds by
indictement, they MIGHT get pre lim, even though the crown in all hybrid offences choose, parliament decides that certain indictable offences aren’t that
serious, so even if crown wants to proceed by indictement you don’t get s.553 of cc called absolute jurisdiction offences, where even crown choose
indictment the accuse doesn’t get pre lim.
o E.g. theft under $500, bawdy house offence, found in a gaming house absolute jurisdiction offences
o Offences that are hybrid not under s.553 you CAN have a pre lim, three choices 1) trial right away @ ontarion court of justice w/t pre lim, 2) superior
court judge alone trial, either w/ or w/t pre lim; 3) jury trial after pre lim or not
- Who the judges are, who the lawyer is, whats you case, will affect your decisions
- S.469 offence, judge and jury, all of these offences go to judge and jury trial, UNLESS the crown and defence consent to a judge alone trial, parlimanet decided that
these very serious offences must b e tried by members of the public
- Pretty rare for s.469 for crown to agree to not have a jury, in most cases you will be tried with jury
- Summary conviction trial w/ no pre lim, indictable in 553 (trial in provincial w/t pre lim), 469 trial with supercourt w/ or w/t pre lim, any other indictable offence you
get to choose
- In indictable offences neither 554 or 469 the accused has the choice for Ontario court or superior court, w/ or w/t pre lim, judge and jury....except for really rare
circumstances your choice is absolute, the rare circumstances is when attorney general chooses jury for your trial
Disclosure
- Constitutional obligation to provide fair trial , informs how we operate our system ,check and balance that the product (aka legal truth) is accurate and reliable
- Pre-charter, there was no disclosure, disclosure at that time was limited to the good-will of prosecutor and police officer, in the 60s and 70s you get disclosure by
chatting up the prosecutors and police, it was charity by schmoozing, routinely get to trial at the pre lim where thats the only chance you will see a police officer’s
notebook, if police officer testified and use their notebook before cross-examination and the defence only have the right look at it then,, if teh crown found
evidence they were not obligated to give it to you (even if evidence proves your innocence) R.v. Savion: s. 603: section authorizes/permits disclosure, only
disclosure section in CC, it relates to, accused after he had be ordered to stand trial, or at his trial, it entitiled to inspect w/t charge his own statement, the evidence
that exhibits if any, and to receive copy of evidence, and indictement...the evidence at the preliminary inquiry, if you went through pre. Lim you could inspect a copy
of the transcript @ the pre lim only, prior to Savion in Ontario the crown wasn’t obligated to disclose to an accused person a statement they may have given to
police officers on arrest,
- Wasn’t until mid 80s, taht crown offices started as a matter of fairness, even w/t legal obligation, start to give disclosure out of common fairness
- 1991, Stincombe, not allowed to see the witness testimony where the crown doesn’t cross-examine his ex-wtiness, full disclosure is a matter of fairness, s.7 demand
disclosure, rules comes from stinchcombe; crown had do disclosed everything, rather crown was going to rely on it or not, rather it was helpful to the crown or not,
dislcousre had to be made BEFORE the accused choose the mode of trial until they ahve their dislcousre and its an ongoing obligation during the trial...concept of
fairness
- Limits on disclosure: the right to dislcousr is not absolute, crown has discretion, extnds to withholding disclosure and timing of disclosure, crown can withhold when
1) if its covered by priviledge (e.g. informant privledge to protect identity informant, if crown brief contained information from informant crown does not need to
disclose iformation that may reveal informant, crown can edit the information, inbestigative techniques protects investigative information Crown can resist
disclosure that would reveal investigative technique only if you say that the privledge information can be prove innocence), 2) where the information is clearly
irrelevant, disclosure can be resisted, CLEAR irrelevance is hard for Crown to establish, crown doesn’t know what may or may not be relevant as defence lawyer,
wheneve the crown decides to withhold disclosure that exercise of discretion if reviewable by a judge,
- Delay disclosure, crown can do it if they, they should try to convey to defence as much as they can to the defence...e.g. accused that became informant witness
- Basic rule of disclosure: crown can only disclose what it has in its psoseession, if the crown doesn’t ahve what you are looking for in their possession, then discretion
rules don’t apply, there’s a twist on that as a basic proposition: the police and the crown who are independent actors, the crown attorney is not counsel for the
police, but for the purpose of dislcousre, something that is in the possession inthe police is in effect in the possession of the crown, in the sense, like the crown has
obligation to disclose the accused, the police have duty to disclose to the crown, failure of the police to disclose to the crown still counts as failure to disclosure
- Other areas where the defence would wanna get disclosure would be from counselling/therapy...credibility issues? Diary written by accused, police discipline
records, jail records...all of these records could be highly relevant to the defence, but not likely to be at the crown possession
- Third party records application: O’Connor case, charged with sexual assault, try to get the records of the victims to test if they came forward which was the same as
the court, if it didn’t demean victim than it is okay, there is a constituionalized role for the keeper of these records, the victim through the crisis centre, engages
inthe privacy inerest of the person’s records...TEST: no application of the SInchcombe area to automatically get the third party records, 2) if defence wants to get
those records they need to issue a “bring with you” document , but they don’t get to read them..first step of O’connor is to convince the judge that is is relevant
(unlike the general disclosure rule that it has to be POTENTIAL to be relevant) the threshold has to be LIKELY relevant, unfolding of the events, the influence of
therapy, credibility nd realiability, 2) after convicing the judge, the judge reads it and decides on the balance, rather the accused’s right trumps the complainants
privacy interest
- S.278, enacted scheme that no records releated to complainant to the accused in respect to sex offences...don’t go through o’conno go through this section of the
CC
o Parlimanet set out a list of assertions that are insufficient to satisfy the test, if you merely assert that the records exist, relates to the subject of the charge,
may relate to the credibility of the complainaint, relate to the testimony not good enough..cann’t merely assert, but nee to ASSERT why it is more likely
than not, that releavnace exists
o Just because a 3rd party record lands in the crown’s lap, doesn’t extinguish the victim’s privacy interest in that diary
- Mc’Neil case
o Drug dealer, goes to trial and after his trial, mc neil learns that the main officer testifyin against him as been convicted of drug offences, mc’neil defense
wase that he wasn’t a trafficker but cop planned drugs on him...mc neil lawyers want discipline record...argue that it is 3rd party records
o SCC says when dealing w/ police displinary records, if the disciplinary records relates directly to an issue in the case, if the discipline record relateds to the
officer’s credibility, that is also disclosure, crown will be deemed to have those records and ought to disclose
o But if the discipline report does not relate to recdibility/reliability of the officer, than it falls back to the o’connor application