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Crim 131 (Fabian) Final Review

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Simon Fraser University
CRIM 131
Sheri Fabian

Ch6 – Courts Court Responsibilities:  Determine guilt/innocence (determine guilty or not guilty, if not legally guilty may not mean innocent)  Impose appropriate sentences  Protect rights of accused  Judicial independence – conduct fair, impartial trials, with no political interference (judges appointed by government but not to be interfered with)  Most frequent trials about – impaired driving and common assault Where do judges come from?  provincial government appoints provincial court judges  federal government appoints superior court judges (even provincial superior court judge) o provinces have created advisory committees to advise the government on the selection of judges – include lawyers, judges, laypersons from community – responsible for screening applications and establishing a final list of candidates for attorney general  historically focus on judicial independent over judicial accountability - possibility of changing?  appointment depends on political affiliations/support (appointed judges not elected) o if have elected judges – judges say „longer sentences, tough on crime‟ – decision what will be popular vote, not what is right. Levels of Court  2 systems : provincial and superior court  4 levels dealing with criminal cases (exception Nunavut – Unified/single-level court because of small population) o Supreme Court of Canada o Provincial Superior Court (Appeals) o Provincial Superior Court (Trial) o Provincial Court Provincial Courts  dispose of almost all criminal cases  judges appointed by provincial government, there are no juries  can hear young offenders cases, or provincial statue violations case  may include family courts, small claims court  may preside over preliminary inquiries (to determine whether there is sufficient evidence to warrant a trial) Specialized Provincial Court  Departure from adversarial approach  Less formal, involve more problem solving and team approach  Reflect concept of “therapeutic jurisprudence” o law/courts as seen as agent of change, primarily that change involves treatment intervention and rehabilitation  Emphasize dialogue among all parties– dialogue with offender and service provider that are part of these courts, create more meaningful change, reduce „revolving door‟ problem of reoffending  Problem – few evaluations, lack resources, high rates of non-completion (many offender gets upset and leaves, then people assume program aren‟t working. However the people who end up in these courts have very specialized needs and can be challenging to help them – these offenders cycle through the justice system have multiple issues, not just offending behaviour, maybe mental illness or substance abuse) o e.g. community courts (eg downtown eastside community court)  problem-solving approach specifically implemented to address needs of those at dt east side  offender are typically assigned community service hours  attempt made to provide them with access to treatments/services) o mental health courts (first in Toronto, address pre-trial issues, eg fitness to stand trial) o domestic violence court o Aboriginal courts (more restorative approach, eg healing circle for aboriginal issues),  Gladue Court (Toronto), Tsuu T‟ina Court (Alberta) o drug treatment courts (for offender‟s whose criminal behaviour is due to drug abuse) Circuit Courts – „„Traveling Courts‟‟  participants include judge, court clerk, defense lawyer, crown, sometimes a translator  travel to remote locations as needed  problems o backlog of cases due to lengthy court docket, delay in justice, many in far north where traveling there is restricted in parts of year o time constraints of court party – no time for crown/defense preparation o language/cultural barriers o difficulty in sentencing  remove offender from community and incarcerate far away? Or protect rights/safety of victims as priority?  Try to adopt more restorative approach, involve community elders in court processes  However difficult for cases where women/young girl are victims of spousal/sexual assault Superior Courts  provincial government responsibility – administer, operate, manage  federal government appoints and paid judges  hear about 10% of criminal cases  2 levels o Trial – hears serious criminal offences – “BC Supreme Court” –  (also called supreme court or court of Queen‟s Bench) o Appeal – hears appeals – “BC Court of Appeal” Federal Court – Supreme Court of Canada  established under Constitution Act 1867  9 judges – appointed by governor in council  If not satisfied with a judge‟s decision, can appeal at federal level – can APPLY, but not guaranteed, many are denied unless have very good grounds  also have federal trial/appeal court – for matters of federal law ( eg copyright law, maritime law, human rights act, immigration act, etc)  also have tax courts – all under federal jurisdiction and federal appointed judges Comparison of Formal Criminal Courts and Restorative Justice Approaches Attribute Court Restorative Justice Participants Experts Local people, non residents Process Adversarial (state vs offender) Community vs problem Central Issue Laws broken Relationship broken Focus Guilt Identification of victim/offender/community – Needs as part of solution to problem Tools Punishment/ Control Healing/support Procedure Fixed rules Flexible Guildlines Supreme Court Decisions: Balancing Security and Rights of Accused  interpretations of Charter  complicated issues – private/public law  permissions or „„leave‟‟ to appeal a lower court decision  „„reference‟‟ cases – “re:…” (federal government ask SCC for a legal decision on an important legal question o re: Secession of Quebec (1998) – whether Quebec could depart from Canada if they passed the referendum o re: Same Sex Marriage (2004) - o R v. Sharpel (2001) – child pornography, freedom of expression o Morgentaler v. R. (1988) - abortion, right to security o R. v. Zundel (1992) - charged with spreading false news, freedom of expression o R v. Stinchcombe (1991) – about disclosure, crown must give all relevant evidence gathered by the police to the defence to permit a defendant to make a full answer and defence to the charges  Critiques: o encourages social activism but also too differential to law enforcement o federal government criticizes court decisions, eg some that have undermined anti-terrorism efforts by striking down certain provisions in the legislation on security certificates System of Criminal Law  stare decisis – lower court follows decision of higher courts  adversarial system – crown vs. defendant  presumption of innocence - burden of proof on crown  doli incapax – too young to for evil (under 12)  Insanity – if mental disorder, cant be held responsible  attempts are considered crime (e.g. attempted murder) Trials  summary trial – less serious, heard by judge alone, less severe sentences  indictable – more serious, may involve preliminary hearings from judges, some may be entitled to jury trial o 3 categories = o absolute jurisdiction of provincial court (less serious indictable, hypbrid, etc) – eg theft, gaming house, driving while disqualified, no jury trials o absolute jurisdiction of superior court (serious offence non electable, eg murder, treason, piracy  must be tried for jury, being with preliminary hearing to justify time to decide whether there is sufficient evidence to justify the time and expense of a trial o Electable Offences – accused has right to choose tried by judge/jury, provincial/superior  Charter guarantee right to jury of max sent over 5 years, however not everyone wants a jury trial o Hybrid – crown decides whether an offence can be proceeded summarily or indictment Legal Representation  right to retain counsel – must be informed  police can continue to question even if requested to see a lawyer  legal aid – must apply, strict eligibility and criteria (must be serious offense and you cant afford it) *A Jury Trial  jury tries facts/determines guilt  jury decisions must be unanimous – if not is a „hung jury‟ , rare  unlike judges, jury do not give reasons for verdict  judge oversees, instruct jury on law – judge gives „„charge to the jury‟‟ explaining all the aspect of the law, and what jury has to do, what their expectations are o jury is „sequestered‟ – lose contact with outside world, placed in jury room, escorted everywhere until they make their decision, cant watch news or call outside Judicial Accountability  most complaints from public, not people from cases o inappropriate remarks, display of gender/raical/religious bias, culturally insensitive, conflict of interest, undue delay in rendering a justice o Judge response removal is rare – alternative is counselling, educational workshops, apologies o judges usually „„allowed‟‟ to resign before removal takes place - only 8 inquiries where a judge was removed from the bench  federal accountability – Canadian Judicial Council – all federally appointed council  provincial – BC provincial court complaint process  criticism – those in judicial council, are judges and legal professionals, deemed not to be able to make an impartial decision Court Delays  not enough money, lack judicial resources, ineffective use of available resources – eg average 9.2 court appearances  legal counsel & inmates try to lengthen the period, if case takes too long, it can be stayed = cases put on hold, suspension or discontinuance – nearly 100,000 criminal cases  too few judges – 6hrs / day, judges have to look up case laws, write decisions, many more things they have to do outside court room  complexity of criminal cases – make things more challenging to deal with, council will have to explain advancement of technology eg DNA to juries, Ch7 – Crown Prosecution PRE TRIAL PROCESS Role of Court Process  crown attorney – advising police what evidence is needed, prepare trial, interview victim/witness, negotiate plea bargain, recommend sentences  court administrator: (count clerks) appointing staff, managing finances, signing orders and judgements  court report: ability to record everything that happens in courtroom, can produce verbatim reports from tape recordings ( for a fee)  sheriff: provide security, manage jury, escorting accused/convicted person Role of Crown Counsel  government representative  prosecute criminal cases  responsibility differs: o provincially appointed: prosecute criminal code offences o federally appointed: responsible for violation of other federal statues(eg drug control )  except terrorities, fed prosecute all  others: prepare for trial, interview witness and victims, recommend sentences, negotiate pleas, appealing sentences  keep up to date on law – esp with case laws  considerable discretion – to prosecute or not, how to prosecute, what sent to recommend  challenges: o increasing workloads o prosecution of sensitive cases o circuit court: little time to prep cases o cultural & language barriers Laying an information  beginning of legal process - police responsibility  Information: document that outlines alleged criminal law breaking  brought before a justice of the peace to be authorized  can be used o to issue a warrant or summons o before/after arrest/appearance notice Laying a Charge  considerable police and crown discretion  BC, QU, NB – police recommend and crown lay charges, other provinces laid by police  Charges not laid in many cases o Reliability and admissibility / lack of evidence o Victim does not want charge laid/uncooperative o Accused dead or under 12 o Crown‟s workload Compelling Appearance  Appearance notice: o Non serious offence, no flight risk o Set out details of crime, provide court date and warning that failure to appear is a criminal offence o If is indictable/elective offence, AN direct them to location to be finger printed o Is youth, emphasize of rights to legal representation  Summons o Issue by JP, states allegation and direct them to appear on certain day o If fail to appear, judge will issue a warrant for arrest, and charged criminally Detention & Release  Not always released after arrest o If charged with indictable offence with 5+ years of imprisonment o Reasonable grounds to believe person will not appear in court  Flight risk  History of not appearing in court o Necessary in public interest (prevent repetition of offence, commission of new offence) Judicial interm release (aka bail)  Judicial interm release (bail) = release by a judge/ JP of a person who has been charged with a criminal offence pending a court appearance  if not released must appear within 24 hours (or asap if weekends)  Accused has right not to be denied bail without reasonable cause  show cause hearing = whether or not to release on bail o if crown oppose release, he must give reasonable cause  reverse onus – accused must show why their release is justified  detention prior to trial when o prior convictions o other charges o previous failure to appear  if released – number of conditions can apply o forfeit money of failure to appear o provide a guarantee by friend/relative to pay certain amount of money if they fail to appear o monetary guarantee (rare) Pre-trial remand  remand = persons in custody awaiting trial or sentencing  remanded into custody through issues of warrant from JP/Judge  sent to provincial jail/prison system  up to 80% of prov jail populations on remand Security Certificates  issued against non- Canadian citizens deemed to be a threat to national security o On Canadian Soil o Can be detained, without charge, for indefinite period of time  Used post 9/11  Challenge – balancing individual rights w/society Fitness to stand trial  Accused must be fit to stand trial - Concern with individual‟s qmental state at time of trial o Must understand nature and consequences of proceedings o Must be able to communicate with counsel  Assessed by a psychiatrist while detained in mental health facility until deemed fit to stand trial  Trial resumes when deemed fit NCRMD – Not Criminally Responsible on account of mental disorder  mental state at time of offence  indiv did not understand what they were doing, or understood that it was wrong when they committed the crime  disposition hearing determines threat to public or himself  Capping – restrictions on how long you can be held in custody Arraignment & Plea  Charges read in open court  Enter a plea (guilty or not guilty) o If plea guilty can move straight to sentencing o Pleading „not guilty‟ results in case being bound over for trial  Pleading not guilty does not equal innocent  Plea bargaining: agreement in which accused gives up right to trial in exchange for promise of benefit o Plea bargaining not binding, judges can ignore them Plea Bargaining (more in tutorial readings)  Advantages: o Saves time & money by encouraging guilty please o Reduces case backlog o Victim/Complainants don‟t have to testify o Accused admits guilt and take responsibility o Doesn‟t compromise administration of justice o Get evidence to prosecute other co-defendants  Disadvantage o Brings administration of justice into disrepute o Subject to abuse b/c no policy or guidelines o More pressure on innocent to “cop a plea” in order to avoid being found guilty at trial and receive a more severe sentence o Place pressure on defendants to plead guilty o Not open to public scrutiny – threatens rights of accused Disclosure of Evidence  AKA “discovery”  Crown must release all relevant evidence to the defence, especially exculpatory evidence (evidence that favors the accused)  Defence – not required to disclose evidence o Becuz onus is on crown to determine guilt – so there is a fair trial The Trial  Diagram from textbook ch 6  Stay of proceedings: crown suspense or ends proceedings after it has started – not in best interest to pursue it? Not enough evidence? o 90% cases do not go to trial – most resolved via plea bargaining or by staying the proceedings or withdrawing charges  Pre trial conference – crown defense and judge meet to discuss how to expedite case, is there anything to get a plea?  Crown presents case – prove guilt beyond reasonable doubt  Defence – cross examination witness, call own witness, challenge evidence  Accused – right to testify or remain silent – can be cross examined Defences  Number of defences when charged with crime: o “you‟ve got the wrong person” – police arrested wrong person or complainant fabricated the allegation – need to present alibi o Excuse- based defence: self-defence, compelled to commit, NCRMD, battered woman syndrome, lack mens rea o Procedural defence – law unconstitutional, evidence is not admissible, violation of rights Appeals  Filed by either crown or defence  Must have basis: o Mistake of law o Mistake of fact o Both  Direct at: o Verdict (finding of guilt) o Sentence o Both  Accused o May be released on bail until appeal heard  Outcome o Not heard o Heard & dismissed o Lesser offence &/or sentence o Acquittal o Order a new trial Ch8 - Sentencing Purpose of Sentencing  S.718 of criminal code o Denunciation of conduct o Deter future offending o Protect society o Rehabilitate offender o Repairing for harm done o Holding people accountable for their actions  Very unrealistic to achieve all of these General Principles  Sentences should reflect: o Seriousness o Degree of responsibility o Aggravating or mitigating factors  Similar to other similar cases  Not unduly harsh  Imprisonment not be used indefinitely Goal of Sentencing  Utilitarian Goals (focus on future) o General deterrence (discourage public from committing same crime) o Specific deterrence (deters individual not to commit same crime again) o Rehabilitation – cure/treat those who offend o Incapacitation – to protect society  Retributive goals (focus on past) o Denunciation – expressing society‟s disapproval of specific behaviour o Retribution – punishing offender “an eye for an eye”  Restorative goals (victim offender mediation) Sentencing Options (less serious to most serious)  Absolute Discharge – hold file for 6 months, no criminal record, no penalty assigned  Conditional Discharge – is placed on probation – required to be on good behaviour, or other conditions o if meet all conditions they will be discharged and no conviction, if violate conditions they will be brought back to court  Fine – payment of specific amount of money within specific period  Suspended sentence – Found guilty, gets record, but no sentence as long as probation is passed  Probation – max 3 years if adult, 2 years of youth, under provincial supervision, may include conditions  Incarceration o Conditional sentences – 2 years or less, serve time in community, form of house arrest o Intermittent – 90days or less, can serve at home, or go to school on weekdays o Imprisonment  Can include: o Restitution – paying for damages caused – return to victim o Community service order - set # of hours of volunteer works within specific period Judicial Options  Multiples sentence – when convicted of multiple charges o Concurrent sentences – sentences are served simultaneously – eg two “eight months” , not 16 o Consecutive sentences - are completed one after another – eg two “eight months”, serve 16  Judicial determination – order for federal offender must serve half of sentence before elligable for parole  Judicial restraint order – for people who hasn‟t been convicted, judge gives condition in order to avoid convicted (eg no firearm, stay aware from places frequented by children) Judicial decision-making  Discretion – judge may use non legal factors to make their decision – sentencing disparity o Appeal court decision  Statutory guidance – eg sentencing purpose in criminal code, controlled drugs and substance act said to give harsher sentence, etc  Maximum sentences o Max for many offence is life imprisonment, rarely applied, if no specified, then max is 5 years o For summary, max is 6 months in prison or 2000 fine, except sexual assault max is 18 months  Mandatory minimum sentences (MMS) Additional Factors  Aggravating factors (abuse of spouse/child, previous record, breach of trust/authority, premeditation, offence that result in injury, offence involves force and vulnerable victims o More serious sentence than typical for offence – lengthen sentences  Mitigating factors (intoxication, lack premeditation, many crimes is crime of passion so self-defence, mental disorder, very old very young, aboriginal heritage) o Less serious sentence than typical for offence Sentencing Aboriginal Offenders  SCC R v. Gladue (1999)  Attempted to reduce Aboriginal overrepresentation o Failed - aggravating factors remain at forefront Additional influences  Pre-sentence reports (PSR) o Prepared by probation officer o Socio-biographical and offence related information o May include recommendations for specific sentence  Plea bargains o Reduce charges or result in dropping of some charges o Convict for less serious offence o Usually joint submission by defence & crown o Judge not obligated to accept o No official plea bargain guidelines Appeal Court Function  Limits judicial discretion o Look at whether sentence was too lenient or severe  Provide guildlines for trial court judges  Appeal court reviews judicial precedents Additional Sentencing Options  Prohibitions (eg no driving, drinking, processing firearms, be at certain place)  Forfeitures (eg counterfeit money, illegal pornography, some explosives and weapon)  Proceeds of crime (eg seize accumulated money/property/goods as a result of their crime)  Dangerous offender designation (DO) o Indeterminate sentence – no specific length on sentence o Likelihood of future serious harm o has a pattern of serious violent offences - behaviour is unlikely to be controlled o crown makes application, after conviction, before sentence is handed down, involving expert witness called to help make decision in court – eg psychiatrists  Long-term offender designation (LTO) o Only for federal offenders o Extends supervision after expiry of sentence (could be 10 years+) o Easier to obtain than DO, LTO can be administrated by national parole b
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