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LAWS 2301 Study Guide - Final Guide: Malicious Prosecution, Crown Attorney, In Private


Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders
Study Guide
Final

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Lecture-9 Readings – Accountability Mechanisms for Police and
Prosecutors - p.197-217
Strategies for Police Accountability and Community Empowerment
By Ross Hastings and R.P. Saunders
there is little in either current legislation or practices which broadens the notion of
police accountability beyond the assessment of the performance of individual
officers and its fit with either the criminal law or other policy and procedural
regulations
the concept of accountability should be conceived of as a continuum involving a
number of different options and approaches
the first possibility is to involve the public as COMPLAINANTS in
accountability processes. This has been the most popular position to date
the key point here is that neither the complainant nor the general public exercise
any control over the processes beyond the point of the complain, and many
processes also fail the test of transparency
does little or nothing to address problems at the corporate level of police service.
In addition, it neglects the broader structural factors responsible for current trends
in crime and disorder, and in the maintenance of the legitimacy of the police
among client groups and communities
the second possible is to include the public as either as ADVISOR to the police or
as a PARTICIPANT in the delivery of policing services.
the participation of the public seems to have a beneficial impact on the quality of
the contacts and relation between police and the public
the third possibility Is to involve the community as a partner in the design
delivery of policing services. The focus of accountability here shifts from the
individual officer to the police service
accountability involves giving mobilized community groups and their
representatives a real and significant role within partnerships
Current accountability mechanisms fail this test; they not only are unable to
address the larger notions of police accountability and responsiveness but, more
importantly, in appropriating the discourses of accountability they mask the real
challenge which remains to be face in the next few years
DOE V Metropolitan Toronto Board of Commissioners of Police and the Status of
Public oversight of the Police in Canada
By Scott Childs and Paul Ceyssens
Doe raises several prominent issues in police oversight, the availability of
damages under the Charter of Rights and a potential onerous new duty on the
police to warn potential victims of crime

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II. FACTS AND FINDINGS
In 1986, Jane Doe was attacked by a serial rapist. She sued, alleging that the two
police investigators were responsible for her injuries. She also sued the chief of
police, the governing body of the police force, and the board of Commissioners of
Police. Since the serial rapists confined his attacks to small geographical area and
an easily identifiable class of victims. Doe argued that she has become “part of a
narrow and distinct group of potential victims”
Doe claimed damages on two grounds. First, she maintained that the police were
negligent in that they failed to warn her of a danger that they knew existed and
also failed to protect her adequately against the danger. Secondly, she alleged the
police breached her rights guaranteed under see 7 and 15 (1) of the Charter of
Rights, which provide as follows:
- Everyone has a right to life and security of the person
- Every individual is equal before and under the law
the Court rejected the evidence of the police that they did not warn women they
knew to be at risk on the basis that the attacker would relocate and continue to
offend
the court found the police negligent in the circumstances of this case
Their warning should have alerted the particular women at risk, and advised them
of suggested precautions they might take to protect themselves
the Court noted that the police owe a duty to prevent crime as well as a duty to
protect life and property
the court then went on to find that the police had breached Doe’s Charter right
Police deprived (JANE DOE) of her right to security of the person by subjecting
her to the very real risk of attack by a serial rapist
Likewise, on the issues of equality rights as guaranteed by s15(1) of the charter,
the Court concluded as follows:
-the conduct of this investigation and the failure to warn in particular, was
motivated and informed by the adherence to rap myths as well as sexist
stereotypical reasoning about rape
the court made one award of general damages - $175,000 --- for both the
negligence and violation of Jane Doe’s charter rights, as well as other smaller
awards of damages
III. DOE AND RECENT TRENTS IN POLICE CIVIL LIABILITY
the past ten to 15 years have seen dramatic change in the legal landscape of
policing in Canada . This change is evident in nearly every facet of the legal

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regulation of the police
Indeed , the trends in civil liability can be summarized in five statements:
1. Civil actions against police have significantly increased in the past ten years
2. Many of the cases are unprecedented
3. Courts of law are awarding judgement against police in many important cases
4. Courts of law are making large awards of damages and costs against the police
5. Other similar cases often follow on the heels of a successful plaintiff.
Doe then is one example of this trend, albeit a conspicuous example
one such emerging area is negligent investigation. In a number of cases persons
who have been charged by the police have sued in negligence after criminal
proceedings have been disposed of in their favour.
Beckstead vs. Ottawa (City). There, police charged Beckstead with two criminal
offences relating to the use of an acquaintance’s bank card.
In its judgement, the trial court allowed the claim of negligence, stating that
police owed a duty to “perform a careful investigation of the complaint” before
laying charges.
4.2 Prosecutor/Defence
Given that the prosecutor is the state official charged with enforcing the criminal
law in the courts, it is particularly important to look at the control or
accountability mechanisms that exits to limit the exercise of his or her discretion
Prosecutorial Arrangements and Powers in Canada
By Don Stuart
Canada, since 1892, has had a criminal code that applies across the country, there
is a complex division of prosecutorial authority between federal and provincial
jurisdictions. Although Canada still has in principle a system of private
prosecution in which an individual can prosecute, in practice the vast majority of
criminal prosecutions are conducted by salaried Crown attorneys under the
authority of provincial attorneys general. The attorneys general are elected
politicians who also serve in Cabinet
they have no separate investigatory arm and are thus forced to rely exclusively on
investigation by police
the role of prosecuting counsel is that of “minsters of justice” rather than partisan
advocates
Crown attorneys have virtually unfettered discretion as to when to charge, what to
charge and when the charge should be reduced or dropped
They have statutory powers such as the right to take over a private prosecution, to
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