CRIM 330 Study Guide - Summer 2018, Comprehensive Midterm Notes - Common Law, Canada, Summary Offence
12 Oct 2018
School
Department
Course
Professor
CRIM 330
MIDTERM EXAM
STUDY GUIDE
Fall 2018
CRIM 330 - Lecture 1 - Introduction
Legal Guilt vs. Factual Guilt
● Criminal justice system fundamentally concerned w/ legal guilt as opposed to factual
guilt
○ Legal guilt - proof of actus reus & mens rea w/ admissible evidence
○ Factual guilt - proof of actus reus & mens rea w/ no concerns re:admissibility of
evidence
● If concern was only w/ factual guilt, would get evidence in any way possible
● Legal guilt concerned w/ balancing number of important values
○ Pursuit of truth
■ Every trial is exercise in pursuit of truth
○ Ensuring fair trial
○ Deterring police misconduct
○ Preserving overall integrity of JS
● Factual guilt concerned w /only one value - pursuit of truth
○ However we get there, anything goes
● In most cases legal & factual guilt coincide
○ Whether we manage to get truth of matter
■ If we did it through system of anything goes, we would get the truth
● However, in some cases they won’t coincide
○ An accused may be factually guilty but not legally guilty, so there is no conviction
& punishment
● Legal guilt want to make sure people conduct procedures lawfully
● Legal guilt - constant balancing act
● Our criminal justice system isn’t just about pursuit of truth, it is concerned w/ qualified
search for truth
● Sometimes end does not justify the means
● Seeking truth in every criminal trial but not at any cost
Sources of Law of Criminal Procedure & Evidence: Codified vs. Common Law
● Law comes from one of 2 sources
○ Legislatures (statutes/legislation)
○ Judges (case law/common law)
● Law of criminal procedure largely found in codified form in CCC
● Law of evidence for criminal cases found mainly in common law
○ Although there are some important relevant statutes such as Canada Evidence
Act
● Most of law found in common law
Role of Prosecutors (Crown Counsel)
find more resources at oneclass.com
find more resources at oneclass.com
● In principle their role is objective
● Duty to see that justice is done - not to simply get convictions
● This is professional responsibility - in BC it is set out in section 18 of Professional
Conduct Handbook
○ “When engaged as a prosecutor the lawyer’s prime duty is not to seek a
conviction, but to see that justice is done. The prosecutor exercises a public
function involving much discretion and power, and must act fairly and
dispassionately. The prosecutor should not do anything that might prevent the
accused from being represented by counsel or communicating with counsel and,
to the extent required by law and accepted practice, should make timely
disclosure to defence counsel or to an unrepresented accused of all relevant
facts and known witnesses, whether tending to show guilt or innocence, or that
would affect the punishment of the accused.”
● Generally lawyers are used to do prosecution work
○ In practice, lawyers always used by gov to do criminal prosecutions
○ Sometimes non-lawyers used to do non-lawyer prosecutions
■ E.g. quasi-criminal, when parking ticket issued & someone wishes to
argue about it
○ However, non-lawyers are sometimes used to prosecute summary conviction
criminal offences & quasi-criminal offences
● There are 3 basic models governments use for prosecutors
○ Full-time employees
■ Most common
○ Contract prosecutors
■ Do not hire people as regular employees, hire them on contract basis,
meaning they work for gov as contractors for term of contract
■ Not long term
■ Typically, govs use them in areas where they cannot justify having full
time prosecutor’s office
○ Ad hoc prosecutors
■ Are subcategory of contract prosecutors
■ Contract even more specific than contract prosecutors
■ Typically hired just to prosecute one case in special circumstances
■ Usually used when prosecutors needed close by
■ Also referred to special prosecutors
● Proper role of Crown Counsel
○ See that justice is done
■ If means they need conviction, will attempt to do that by any means
necessary
● If not enough evidence to get conviction, then going after person may be injustice
● When someone is in role of public power like crown prosecutor, it is not their personal
power
○ It is power entrusted to them - public trust
■ When have public power, responsibility comes along
find more resources at oneclass.com
find more resources at oneclass.com
