CRIM 2652 Lecture Notes - Lecture 12: Indictable Offence, Jian Ghomeshi, Jury Trial

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16 Aug 2016
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The Courts:
-very public
-operate according to a set of values that run contrary to the official version of the law
-the courts: inefficiency (cases settled fast, plea bargaining, getting people to move through the
system at the fastest speed)
-access to justice becomes a crucial issue when looking at courts
Overall Structure of the Courts:
-courtrooms mimic British style courtrooms
-courtrooms are hierarchical in its structure
-main areas of court process:
1) pretrial
2) trial
3) sentencing
-key players:
1) victim/witness
2) police
3) crown prosecutor
4) defence counsel
5) judge
Main Goals of the Court:
1) do justice: pejoratively, we assume that the court’s purpose is to do justice, which means
establishing the facts around the accusation that someone has committed a crime
2) protect the rights of individuals in conflict with the law: determine the just level or
measure of punishment for the harm done..procedural justice: rights of the criminal are
protected when they come into contact with the law..courts try to secure justice
procedurally by establishing a set of rules and conditions by which the facts of the matter
are presented, the order in which they are presented, and the rules of admissibility of
evidence, and they are free from intervention..judges are appointed and independent
both the branches of government and independent of the populus as they are not
elected..superior court judges are appointed by the governing council, the prime
minister..justices of peace are appointed by the provincial attorney general..the
procedure by which judges are selected is insulated from political interference, as judges
are supposed to be appointed according to judicial committees and rules..no public
servant wants to have the appearance that they are interfering with the trial..there is a
balance of power between the court and political system, insofar as the has the duty and
responsibility to ensure that the law isn’t violating rights..it is to the courts alone to say
that the state is violating citizens’ rights..that role is crucially important, as the courts are
the only recourse we have as citizens against the state..if they were simply
representative of the state, we would have no legal recourse to get redress from the
state..
Key Role in the CJS:
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-mete out justice independently
-monitoring function
-hear criminal cases and appeals
Classification of Offences:
-the type of offence that one is charged with will often determine how one is disposed in the
system..the type of offence that one is presented with will often determine how the police will
proceed in the investigation, how they handle the trial, and which level of court will try the case:
1) how the police proceed
2) options available to Crown re: how and where a case may be tried
3) which level of court will try the case
4) which court may hear an appeal
5) what penalty might be applied if there is a conviction
-Jian Ghomeshi case: the category of crime has a profound impact on the range of penalties
-types of offences
1) summary:
a) less serious offences, such as theft under $5000, carry a maximum penalty of less than
2 years..
b) if incarcerated, one would be incarcerated in the provincial institution, and usually, they
are disposed by fine..not entitled to a jury trial
c) tried within 6 months of when the offence took place…
d) most numerous type of offences but take up little time, sometimes they are solved in less
than 3 appearances and most of the time, they are disposed of within minutes at the
court..
2) indictable: the most heinous and serious types of offences, which entails the accused
choosing how they wish to be tried, by a superior court judge or jury
a) most serious offences, i.e., homicide, treason, sexual assault, armed robbery,
dangerous driving
b) can be tried in different courts depending on seriousness of offence and preference of
the accused..for example, if you are charged with an indictable offence of dangerous
driving, the chances of seeing a superior court for this charge is very low..most likely will
take place in the provincial court..the vast majority of indictable offences that are seen
are judge trials..very rarely will they go before a jury..juries are integral parts of the
criminal justice system..you are supposed to be judged by your peers..a superior court
judge/justice is not one’s peer..by definition, taking up the mantel of being the judge
separates the judge from the rest of society, as they stand in judgement before us..juries
can vote in a manner contrary to the instructions given by the judge..most cases, even
the most serious cases, are heard by judge alone..except in very rare circumstances, will
the case be presented before a jury..there is an expectation that jurors will be
objective..they must transcend the biases..if a defence attorney is trying to raise a novel
case or defence that has not been adjudicated or judged upon, in which judges have not
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