ExamStudy-Ch6,8,9-Role of Prosecutor-Day in Life of Judge.docx

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University of Toronto Mississauga
Philip Goodman

Griffiths, Chapter 6: The Criminal Courts Criminal courts play multifaceted role in CJS. What has changed? More complex cases, more challenging legal issues, and heavier workloads due to the Charter of Rights and Freedoms. Excluding Nunavut, there are 4 levels of criminal courts: Supreme Provincial Provincial Provincial Court of Superior Court Superior Court Court Canada (Appeals) (Trial) Courts are responsible for determining guilt/innocence of accused, imposing appropriate sentence on those convicted, protection of accused’s rights, and monitoring agents of the CJS (police, correctional systems). Principle of Judicial Independence: citizens have the right to have their cases tried by tribunals that are fair, impartial, and immune from political interference; applies to courts and juries in criminal cases Despite importance of the courts, it remains somewhat a mystery for society since what judges, the Crown counsel, and defence lawyers do is much less visible than what police do. Canada doesn’t have a uniform court system – each province/territory has a website providing information on its court system. The top cases heard in 2006/07 in adult criminal court were impaired driving (Criminal Code Traffic) and common assault (crimes against person); others commonly heard were of crimes against property, administration of justice offences, other Criminal Code offences, and other Federal Statutes offences. The Provincial Court System Every province/territory has two levels: provincial and superior. Nunavut has only one unified court (a superior court). Provincial Courts - Lowest level of courts; most criminal cases start and end here; funded by provinces; judges are appointed by provinces and can preside over preliminary inquiry; no juries - Cases under YCJA can be heard and cases involving provincial statutes - Include family and small claim courts - Judges hear increasingly more serious offences creating a blur between the two levels of courts - Judges are confronted by specialized populations that strain resources & challenge to apply more appropriate sentences Federal Courts If one appellate judge dissents, unsuccessful party can appeal to federal court: the Supreme Court of Canada, which is in Ottawa and was established under the Constitution Act (1867) but the bill creating the Court was not passed until 1875. The governor in council appoints the 9 judges, who must be superior court judges or lawyers with 10 years’ standing at the bar in a province/territory & are selected from major regions of the country, but of which 3 must be from Quebec. Decisions are final and cannot be appealed, although legislation can change result of a decision. Two other federal courts are the Federal Court, which has a Trial Court and a Court of Appeal, and the Tax Court. The Federal Court deals with federal law cases: copyright, maritime, Human Rights Act, Immigration Act, and appeals from National Parole Board. Where do Judges come from? Provincial Court: appointed by provincial governments  appoint all Section 92 judges Superior Courts: appointed by federal government appoint all Section 96 judges Appointments are for life; no elected judges like in the U.S. Federal government appoints judges in federal trial & appeal courts, Tax Court, and Supreme Court. Canada focuses on judicial independence rather than judicial accountability, but this may be changing: discussion of electing judges; 2009: a poll found 2/3 surveyed citizens favoured electing judges. Elderly, white, Anglo males are overrepresented in the judiciary. Efforts have been made to address failure to reflect cultural diversity in judiciary. A study found, more than half of appointees (federal, non-Supreme Court) support Liberal Party  raise concern of political affiliation when federal judges are selected & possible influence of patronage in this process; but changes have been made to improve quality of judges and minimize influence of politics  advisory committees in provinces Judicial Advisory Committee: - In each province/territory - Consists of lawyers and laypeople - Forward nominations to justice minister, who makes final appointments - Provincial: parallel process, but referrals go to attorney general Ontario: Judicial Appointments Advisory Committee - Lawyers, provincial court judges, laypersons from community - Advertises judicial positions and screens applications - Establishes final list for Attorney General At federal level, Office of the Commissioner for Federal Judicial Affairs performs similar functions for federal Minister of Justice. Specialized Provincial Courts Provincial courts are becoming more specialized  domestic violence courts, drug courts, Aboriginal courts - Reflect concept of therapeutic jurisprudence, wherein the criminal law and criminal courts can function as change agents to have a positive impact on clients’ lives  focus on intervention and rehabilitation. - Less formal atmosphere and emphasis on dialogue from all parties - Judges’ role expanded from traditional adjudication to being a team player: encouraging, rewarding, but stern and attending to lapses - Appear to suffer from lack of resources and high rates of non-completion among offenders Community Courts - Many exist in the U.S. & use a problem-solving approach o San Francisco: Community Justice Center  Hears low-level crimes  Links offenders with social services and treatment resources  Cases processed in 2 days, rather than 45 as in regular courts  Critics: waste of money, half of cases brought to court were dismissed o Brooklyn, New York: Red Hook Community Center  Defendants considered it to be more fair than traditional criminal court & had more favourable views of presiding judge, who play proactive role o Reduced recidivism rates, high levels of community support, enhanced case processing - Vancouver’s Downtown Community Court: o First one in Canada o Problem-solving approach o Deals with minor offenders who may have substance abuse, mental health, and/or homelessness issues o Assigned to complete certain number of community service hours & access to treatment services and programs Mental Health Courts - 1998: first mental health court established in Toronto - Address pre-trial issues of the accused’s fitness to stand trial and to reduce re- offending and involvement in the CJS of mentally ill persons - The court in London, Ontario has a diversion program that redirects mentally ill offenders away from CJS and into treatment services o Critics: lack of communication between parties and continuity in personnel hinder its effectiveness - No evaluations on these courts so difficult to say if have worked - U.S. study: offenders who were arrested and diverted to these courts, and successfully completed program had lower rates of reoffending and violence Domestic Violence Courts - Many have been established, including in Toronto, London, Winnipeg, and Calgary - Deal with charges of domestic violence & acts as a mechanism of early intervention - Ontario courts use 2 approaches: 1. Early intervention and counseling (no bodily harm, no weapons, pleaded guilty) 2. Coordinated prosecution (repeat offender, serious injury)police investigation, prosecution by specialized Crown attorneys - Judicial interim release (bail): release by a judge or JP of a person who has been charged with a criminal offence pending a court appearance - Support for victims provided by Victim/Witness Assistance Program - No published evaluations of domestic violence courts Aboriginal Courts - Criminal Code Section 718.2(e): consider alternatives to imprisonment, especially for Aboriginals & use restorative justice - Affirmed by Supreme Court in R.v.Gladue - Several provinces created Aboriginal courts to better address needs The Gladue Court (Toronto) - An Ontario Court of Justice that meets biweekly & deals with Aboriginal offenders through bail hearings, remands, trials, and sentencing (focus on alternatives to imprisonment) - All court workers (judge, Crown, lawyers, etc.) are Aboriginal Tsuu T’ina Nation Peacemaker Court (Alberta) - Calgary: Peacemaker working with Crown identifies cases involving the Tsuu T’ina Nation, that can be diverted to community’s peacemaking program, which uses restorative justice: apologies, financial compensation, treatment programs, offender hold a traditional feast case returns to court and peacemaking process considered by judge when imposing sentence Drug Treatment Courts - Alternative response to drug-related offences, where imprisonment is avoided through obeying certain conditions (participation in treatment program, regular drug testing)failure to abide=processed through regular courts - Crown diverts accused to this court, if eligible (violent offence=not eligible) - Judge takes active role in treatment planning and monitoring, rewarding, and sanctioning (if need be), while defence lawyers and prosecutors work together to address addiction needs - Total abstinence from drugs is not mandatory, but must report relapses & reduce dependency; if complete program, charges might be withdrawn if not a serious offence, while those with a serious offence receive probation - Canada & U.S.: positive outcomes – reduced drug use, lower chance of rearrests; but Vancouver showed significant amount failed to show up to sessions & only 14% completed program Provincial/Territorial Circuit Courts - Judicial service provided to remote/northern areas - Judge, court clerk, defence lawyer, Crown, translator travel to area - Concerns: backlog, time constraints, shortage of interpreters, cultural differences between law and offenders - Face difficult decisions – incarcerate far away from home  encourage alternatives, thus often use restorative justice - Saskatchewan: Cree Court in Prince Albert travels to remote communities to hear cases, and all court workers are Cree speakers Superior Courts - Highest level of courts in a province; administered by provincial government; judges appointed by federal government; name generally identifies location; hears about 10% of criminal cases - Two levels, which can be divided in the same court, or be in two separate courts (like in Ontario): 1. Trial: serious criminal offences (murder); known as Supreme Court or Court of Queen’s Bench; may involve juries; one judge 2. Appeal: criminal, and civil, appeals from superior trial court; usually called Court of Appeal; accused has right to appeal verdict, sentence, or both; preliminary matters are dealt typically by one judge, but 3 are required to hear appeal at certain final hearings & final decision rests with majority (group decision); review decisions of lower courts The Formal Criminal Courts versus Restorative Justice Approaches Attribute Court Restorative Justice Participants Experts Local people Non-residents Process Adversarial Consensus State vs. offender Community vs. problem Central issue Law broken Relationship broken Focus Guilt Identification of victim/offender/community Needs as part of solution to problem Tools Punishment Healing/support Control Procedure Fixed rules Flexible guidelines Supreme Court Decisions: Balancing Security and the Rights of the Accused - Generally grants only 10% of requests & cases are heard by an odd number of judges to avoid ties - Typically involve the Charter of Rights and Freedoms or issues in public & private law; usually an appeal of the decision made by a lower court - Reference: federal government asks for legal opinion on a legal question o 1998: Could Quebec secede unilaterally from Canada under Constitution? Does international law give Province of Quebec this right? o Could marriage be redefined to allow same-sex marriages? Yes. - Tension between rights set in Charter of Rights and Freedoms and need to protect general public o R.v.Sharpe: upheld law relating to possession of child pornography o Some laws are struck down: Morgentaler v.R. (therapeutic abortion, Criminal Code Section 287)and R.v.Zundel (spreading false news, s. 181)  laws still exist but cannot be used to prosecute anyone - Decisions can affect legal procedures - Criticism: social activism in decision making, too deferential to law enforcement (especially in interrogation of suspects), undermined anti-terrorism efforts by striking down certain provisions in legislation on security certificates - Governments won cases 62% of time in decisions involving Charter challenges - Since 2000, broader range of cases heard in which appellant found rights violated  appellant won 52% of time Mode of Trial - “trier of fact” (usually judge) decides whether accused’s guilt has been proved beyond a reasonable doubt o Sometimes jury makes this decision - Jury trials are mandatory, an option, or prohibited depending on the case o Not available for summary conviction offences o Typically unavailable in youth court - Judge, prosecutor or Crown counsel, defence counsel, witnesses, and jury play key role; clerk assists in administration of trial; stenographer records all proceedings - Figure 6.4 on page 166 shows flow of cases through the court system Summary Trial - Summary conviction offence or Crown proceeds summarily; resolved in provincial court; sentences are less severe Indictable Offences - Accused charged with indictable offence or Crown proceeds by indictment o Hybrid (or elective) offence: an offence that can be proceeded summarily or by indictment – a decision always made by the Crown - 3 categories defined by Criminal Code: 1. Offences under absolute jurisdiction of provincial courts 2. Offences under absolute jurisdiction of superior courts 3. Electable offences - Election: the right of the accused to choose to be tried by a judge instead of a jury; key difference Absolute Jurisdiction of Provincial Courts - Criminal Code Section 553: less serious indictable offences and hybrid (elective) offences o Theft, obtaining money on false pretences, fraud, mischief, keeping a gaming or betting house, and driving while disqualified - No jury trials Absolute Jurisdiction of Superior Courts - Criminal Code Section 469: serious offences that are also non-electable offences o Murder, treason, piracy - Tried before jury unless both accused and provincial attorney general agree to waive this right - Preliminary hearing: a hearing to determine if there is sufficient evidence to warrant a criminal trial (prima facie case) o Does Crown have evidence to prove guilt? If not, judge may dismiss case or problematic charges against accused o Usually committed to trial and trial date is set o Accused can waive this right and go directly to trial o Preferring the indictment: provincial attorney general can skip this and go to trial if allegations are serious (rare) - Court may order publication ban to protect victim/witness’ identity & required to order publication ban to protect identity of all victims of sexual offences and witnesses of sexual offenders less than 18 years old Electable Offences - Accused has 3 modes of trial to choose from: 1. Trial by provincial/territorial court judge a. No preliminary hearing b. Waive right to trial by jury 2. Trial by superior court judge sitting alone a. Preliminary hearing unless waive right 3. Trial by superior court judge and jury a. Preliminary hearing unless waive right - Charter – right to jury trial if alleged offence carries maximum sentence of more than 5 years’ imprisonment - Once accused has elected, can reelect another option or enter a guilty plea, in which case there will be no trial - Provincial attorney general may intervene and require jury trial if offence is punishable by more than 5 years’ imprisonment & if accused has chosen one of first two options (rare) - If fail to appear for trial by jury on appointed court date, lose right to jury trial Structures of Judicial Accountability - Canadian Judicial Council: chaired by Chief Justice of Canada and made up of judges o Keeps with mandate set by Judges Act o Provides continuing education for judges, address issues concerning administration of justice, makes recommendations on judicial salaries and benefits o Investigates complaints about federally appointed judges  Arise from intemperate remarks and/or inappropriate conduct either on or off bench  Gender bias, racial bias, religious bias, conflict of interest, cultural insensitivity, undue delay rendering a decision, alleged inability to execute functions of a judge because of mental infirmity  Very few result in removal of judge from bench  Mostly handled by chairperson of council  Sanctions: removal from bench (rare) to leave of absence withy par or letter of reprimand  alternatives: counseling, education workshops, apologize to complainant  Serious cases: judges often resign before council completes inquiry - Provincial court judges are monitored in a similar manner but by local bodies o Ontario Judicial Council, Conseil de la magistrature du Quebec - Concern: accountability mechanisms for judges are composed of judges and other members of legal profession - Judicial misconduct may not be reported since some complainants may feel intimidated, especially those of a vulnerable group Delay and Backlog in the Criminal Court - Case delay and backlog are endemic in CJS and seem immune from reform efforts - Why? Lack of judicial resources, ineffective use of resources, too few judges, complexity of criminal cases, attempts by legal counsel and inmates to lengthen period of remand (driven by two-for-one credit jail time served prior to sentencing, which was abolished in 2009 and replaced by one-for-two credit) - Alternative dispute measures and restorative justice approaches promise to reduce backlog - Ontario: Attorney General launched initiative called Justice on Target o Reduce delays and appearances by 30% by 2012 o Teams consist of judges, Crown counsel, defence counsel, and police working together to improve case processing - Ontario government conducted review to identify strategies for addressing unique challenges presented by large and complex cases o Charter and new provisions for evidence and procedure contribute to lengthy and expensive trial Griffiths, Chapter 8: Sentencing The Purpose and Principles of Sentencing Criminal Code Section 718 sets out purpose and principles of sentencing. Section 718.1 states that the sentence has to be proportionate to gravity of offence and degree of responsibility of the offender. Section 718.2 states principles that court must consider when imposing a sentence. The Goals of Sentencing: The Cases if Mr. Smith and Mr. Jones Three main groups of sentencing goals in criminal courts: utilitarian, retributive, and restorative. - Mr. Smith: Quebec- based police chief, swimming coach, convicted of 4 counts of sexual assault for fondling 2 girls aged 12 and 13 - Mr. Jones: computer engineer in British Columbia, convicted of sexual assault for fondling his young stepdaughter over a two-year period - Neither had prior criminal record, cases heavily publicized in respective communities, both men eventually lost their jobs Utilitarian Goals Retributive Goals Restorative Goals Focus on future conduct of Focus on the past Most widely used offenders & those who Denunciation – expressing approaches are victim- might commit similar society’s disapproval of offender reconciliation, offences offenders’ behaviour circle sentencing, & family Discourage potential Retribution – making group conferencing offenders – general offender “pay” for their Criminal behaviour injures deterrence offence  “an eye for an victim, communities, and Discourage offenders from eye” offenders & efforts to repeating – specific Proportionality resolve problems should deterrence involve all 3 parties Curing offenders of cause - Victims & families discuss rehabilitation impact and offenders are Keeping offenders in jail to held accountable for their protect society - criminal behaviour incapacitation What Sentences did Mr. Smith and Mr. Jones Receive? Sexual assault carries a maximum sentence of 10 years’ imprisonment. Neither offender had a prior criminal record and had good job history, but offences were serious and significantly impacted victims – long term emotional & academic problems, emotional difficulties, etc. In both cases, children were young and vulnerable. Mr. Smith was entrusted to watch children by their parents & viewed as an authority figure  violated trust. Mr. Jones violated his stepdaughter’s trust & most likely would have continued sexual abuse had she not informed her mother. Mr. Smith: 3 years’ probation (maximum) and 180 community service hours. Crown appealed sentence – too lenient. Quebec Court of Appeal upheld sentence: offender was fired from job, so already experienced severe sanction; acknowledged child abuse typically demands a denunciatory sentence for protection of society, but each case must be judged on its merits. Mr. Jones: 18 months’ confinement in provincial correctional facility & 3 years’ probation (maximum). Presiding judge explained sentence as objectives of denunciation and general and specific deterrence. Sentencing Options Majority of convicted (of criminal offences) placed under supervision in community, instead of sent to prison. Absolute Discharge - Absolute discharge: a sentence wherein the accused is found guilty but does not gain a criminal record and is given no sentence o Technically not convicted, can rightly claim to have no criminal record (will stay with police for 6months) o Court must be satisfied that it is “in the best interests of the accused and not contrary to the public interest” Conditional Discharge - Conditional discharge: similar to absolute discharge, but offender placed on probation, with various conditions, including “to keep peace and be good of behaviour” o If offender satisfies conditions in specified time period, discharged and deemed never convicted o Those who fail to abide by conditions or commit new offence are brought to court The Fine - Most frequently imposed, second to probation - Payment of a specific amount of money in a specified period o Amount is determined by judge within statutory maximums set out in Criminal Code o Generally reflects severity of crime, tempered with consideration for offender’s ability to pay - Fine option program: a program that provides offenders who cannot pay a fine with the opportunity to discharge, through community service work, all or part of the fine o Can be extended over as long as two years - Not compensation to victim - Vast majority of offenders pay their fines but those who don’t pay by the deadline are deemed to be in default  used to be sent to jail & some offenders preferred to serve time than pay  incarceration (especially of poor) - Supreme Court of Canada R.v.Wu: if offender doesn’t have means to pay upon conviction, should be given reasonable time to pay, and every attempt should be made to avoid sending offender to jail Suspended Sentence - Suspended sentence: a sentencing option whereby the judge convicts the accused but technically gives no sentence and instead places the offender on probation, which, if successfully completed, results in no sentence being given - If offender reoffends while on probation, brought to back to court, and judge can revoke original probation and “impose any sentence that could have been imposed if passing of sentence had not been suspended”, or court can extend period of probation for up to a year Probation - Criminal Code Section 731 provides cases where there is no minimum penalty, judge may place offender on probation, which falls under the authority of the provincial/territorial correctional systems Restitution - Restitution: compensation to victim(s) - Mischief, fraud, theft - Cash payments in compensation for stolen or damaged property or for property seized from someone who innocently purchased it without knowing it had been stolen - Important to restorative justice because helps restore victim to pre-offence financial condition and because it holds offender accountable - Judge can make order unilaterally or at request of Crown - Difficult to enforce  very little can be done if offender does not pay o Can embed restitution into probation, so non-payment becomes a breach of probation o Beneficiaries can use civil courts to enforce - Includes expenses associated with bodily-harm offences, but many are same as those covered by criminal injury compensation programs Community Service Order - Can be condition of adult probation order - Sorting material at a recycling depot, picking up litter in parks, scrubbing graffiti from highway structures - Judges sets number of hours & defines specified period during which hours should be completed Imprisonment - Rarest and most onerous sentence - Generally reserved for serious crimes or offenders who have long criminal records Incarceration - Different approaches to use of imprisonment across Canada - Specific mix of offences presented to judges contribute to variation across Canada with respect to use of imprisonment Intermittent Sentence of Confinement - Prison sentence 90 days or less, judge has option of allowing offender to serve it on an intermittent basis - Most common arrangement: offender lives at home, works or attends school during week, spends weekends in jail o During periods outside institution, offender is technically on probation and must abide by conditions - Fine defaulters Conditional Sentence of Imprisonment - Criminal Code Section 742 – convicted person who would otherwise be incarcerated for less than 2 years can be sentenced to conditional sentence of imprisonment: a sentence for offenders who receive a sentence or sentences totaling less than 2 years whereby the offender serves his or her time in the community under the supervision of a probation officer Concurrent and Consecutive Sentences - When offender is convicted of more than one charge, sentences imposed can be served concurrently or consecutively - Concurrent sentences: sentences that are amalgamated and served simultaneously - Consecutive sentences: sentences that run separately and are completed one after the other - Most sentences in Canada are to be served concurrently Judicial Determination - Judicial determination: order that a federal inmate serve half of the sentence before becoming eligible for parole o Criminal Code Section 743.6 o Inmates typically apply after serving one-third o Imposed on offender convicted of Schedule I offence(s) (specific crimes against person) and Schedule II offence(s) (drug offences specified in Corrections and Conditional Release Act) o Used in less than 5% of federal cases  Aboriginal offenders are overrepresented in those offenders who receive it o Those who receive are likely to serve entire sentence in prison Judicial Restraint Order - Criminal Code Section 810 – you may lay information before a justice of peace if you have reasonable grounds to believe another person will injure you, your spouse, your children, or your property. - Sections 810.01(1), 810.1(1), and 810.2 require information to be laid before a provincial court judge - If JP or judge is satisfied there are reasonable grounds for the belief, defendant is required to enter into a recognizance to keep peace and be of good behavior for a period not to exceed 12 months o Court may also impose conditions on defendant o Violation of conditions is an offence and can result in imprisonment o Refusing to agree to 810 order can also lead to imprisonment - Critics: conditions are too broad in application - 810 order can be imposed on offender following custodial release on completion of sentence How Do Judges Decide? - Sentencing is judges’ most difficult task - Judges have considerable discretion in selecting a sentence  Criminal Code Section 718.3(1) - 3 important steps in decision making of trial judges: 1. Identifying the relevant factors in the case 2. Identifying the relevant law 3. Combining relevant facts and law to produce the correct outcome - In making sentencing decision, judge may sometimes seek to impose sentence that only fits crime and reflects “going rate” for similar offences but also takes into account offender’s particular circumstances o In other cases, sentence may only reflect severity of crime o Media attention and public and political debate can also cause difficulties - Discretion may bring in non-legal factors, contributing to inconsistency o Sentencing disparity: different sentences imposed for similar offences committed by similar offenders in similar circumstances o Judge’s personal attributes also exert influence: political party that appointed, region where judge practices, gender  Ontario & western regions, exercise liberalism  Female judges and male judges vote differently o Outside groups also have an effect - Limits to discretion: Criminal Code Section 718.2(b) (similar crimes committed by similar offenders in similar characteristics should draw similar sentences) & sets maximum sentences o Appellate courts defer to lower-court sentence and change sentence only if its unfit due to error, a relevant factor is not considered, or a factor is overemphasized You be the Judge - Box 8.1 – pages 221-223 & Box 8.4 – pages 236-237 Statutory Guidance - Parliament offers guidance in sentencing through statutes, not just Criminal Code Section 718 - Criminal Code Section 718.1 – principle of proportionality - Controlled Drugs and Substances Act – what factors judges should consider when sentencing drug cases o Section 10(2) – harsher sentence if offender: carried/used/threatened to use a weapon used/threatened to use violence; trafficked a specific substance, possessed substance for purpose of trafficking, in or near a school or public place frequented by people under 18; or trafficked specific substance, or possessed substance for purpose of trafficking, to person under 18 Maximum Sentences - Every offence has one, and judge cannot exceed it; so high, so provide little practical guidance o Manslaughter: max is life imprisonment o If no max is specified for indictable offence, max allowable years is 5  Max is rarely applied o Summary convictions, max is 6 months in prison and/or $20,000 fine  Sexual assault, max is 18 months  Max applies when Crown elects to proceed summarily on hybrid offence; don’t apply if defendant elects trial in provincial court on an indictable offence - Election can be used as a bargaining chip in sentencing negotiations (plea bargaining) Mandatory Minimum Sentences (MMS) - Several offences, upon conviction, carry MMS o Use of firearm – one year in prison for first conviction& 3 years for subsequent offences (consecutive) o Second conviction for impaired driving o First- and second-degree murder - Pressure on government to increase offences subject to MMS since it is a general and specific deterrent, removes criminal offenders thus preventing it, denunciation, and reduce sentencing disparity  political initiative - Critics: little or no deterrent value, limit judicial discretion, significant cost implications, and may lead to unfair sentencing practices - Little research in Canada; studies from U.S., U.K., and others show MMS have modest effect on crime prevention, no effect on drug consumption or drug- related offences, and no effect in reducing disparity o Increase cost due to increase in not guilty pleas o Increases incarceration - No evidence that sentences reduce crime rates; result in more offenders pleading not guilty avoid a MMS Appellate Decisions and Legal Precedents - Sentence can be changed by appellate courts if deemed too lenient or severe o Can also set guidelines to assist judges in trial courts o Reviewing appellate courts’ decisions and judicial precedents = general range of acceptability Aggravating Factors - Can result in more severe sentence than would normally be imposed - Include abuse of a spouse or child (s. 718.2); previous criminal records; breach of trust or a position of authority (s. 718.2); premeditation; and/or injury to victim - Membership or association with a gang Mitigating Factors - Point toward a more lenient sentence - Intoxication, lack of premeditation, being provoked into self-defence, acting out of financial need rather than for greed or profit - Psychological problems, age, Aboriginal background, no criminal record, and/or addiction to drugs or alcohol - General good character of offender and stable employment record; defendant’s conduct at arrest and during legal proceedings; and post-offence rehabilitation - “guilty plea discount” – defendants who plead guilty may expect lower sentence since it is an acknowledgement of blame, indicates remorse, saves taxpayers cost of trial, and saves victim inconvenience and/or trauma of testifying o Courts must justify it a mitigating factor but a not guilty plea does not work to aggravate a sentence Sentencing Aboriginal Offenders - Criminal Code Section 718.2(e) created in attempt to reduce Aboriginal overrepresentation in correctional institutions - Reaffirmed by Supreme Court in R.v.Gladue  judges must consider: 1. Unique systematic or background factors that may have contributed to criminal behaviour of Aboriginal person before court 2. Specific sentencing procedures and sanctions that may be more appropriate for offender a. Restorative justice b. Traditional healing - But, Supreme Court in R.v.Wells: Section 718.2(e) does not alter judges’ duty to impose sentence appropriate for offence and offender - Emerging consensus that Section 718.2(e) hasn’t achieved its intended objective of reducing number of Aboriginals sentenced to prison o Primary determinants are offence’s seriousness, prior criminal record, and plea entered by offender, not whether he/she is Aboriginal - Quebec: Aboriginals are not overrepresented in correctional institutions Pre-Sentence Reports - Pre-sentence report (PSR): a document, prepared by a probation officer for the sentencing judge, that contains socio-biographical and offence-related information about the convicted offender and may include a recommendation for a specific sentence - Cases in which PSR was presented, more likely to result in community sentence than a custodial sentence Additional Sentencing Options - With sentence, judge can attach disposition(s) found in Criminal Code o Prohibitions can include from driving, from attending places frequented by children, and from possessing firearms o Forfeit goods to Crown; items are destroyed or sold with proceedings going to government  Government can also seize accumulated money, property, or goods as result of their crimes Extraordinary Measures 2 dispositions that are not time-limited and are used only in the most serious and unusual cases Dangerous Offender (DO) Designation Long-Term Offender (LTO) Designation Criminal Code Section 752 – person who is Criminal Code Section 753 given intermediate sentence upon Crown may use this option when criteria conviction for a particularly violent crime for filing DO application fall short and/or who has demonstrated a pattern Only available for offenders who have of committing serious violent offences received a sentence of more than 2 years, Person’s behavior is unlikely to be and are thus under jurisdiction of the controlled or prevented by normal federal correctional system approaches Judge sets length of Long-Term Supervision Can only be declared DO by sentencing Order at sentencing, which comes into judge if Crown makes formal application effect after imprisonment and any post- (rare) after conviction but before release supervision sentencing, which must be approved by Offender is supervised by parole officer for provincial attorney general beforehand its duration, which can be for a period of If Crown proves case, judge may order up to 10 years detention for intermediate period (put in Most such orders are for 10 years federal prison, no set length on sentence) National Parole Board can release Long-Term Offenders & Long-Term offender next year, next decade, or never Supervision Orders: What’s the Difference? 2 elements considered: past offence LTO is imposed by sentencing judge and is history (involve at least one serious actual sentence of court under Section personal injury offence; persistent, 753.1 of the Criminal Code aggressive behavior; failure to control Long-Term Supervision Order refers to sexual urges) and likelihood of future administration of sentence and is the serious offences (Crown has to prove responsibility of the National Parole Board offender constitutes threat to life, safety or under Corrections and Conditional physical or mental well-being of others; 2 Release Act psychiatrists, one from Crown and one from defence have to testify) Aboriginals are overrepresented Sentencing and Crime Victims Increased efforts to involve victims in criminal justice process and ensure interests of crime victims are addressed Victim Impact Statements - Criminal Code Section 722.1 - Victim impact statement (VIS): submission to a sentencing court explaining the emotional, physical, and financial impact of the crime - Commonly used for crimes against person - Form of a letter to the judge & at judge’s discretion, victim can read their VIS aloud in court or testify about impact of crime; not allowed to request specific penalties or directly address issue of sentencing - Critics: emotionally charged so undermine objectivity of justice; little influence on sentencing (indicated by research) - No guidance provided for courts’ use of the information VISs contain  left to discretion of individual judges Victim Fine Surcharge - Unless constitutes hardship to offender or his/her dependents, sentencing judge in adult court must order offender to pay a victim fine surcharge (VFS) equal to 15% of any fine – if no fine, an amount of up to $10,000 is set by the judge - Two common misunderstandings: 1. Surcharge is not a sentence and is always ordered in addition to another disposition 2. Money is not paid to the victim, but goes to provincial fund for victim services Victim-Offender Mediation - Victim-offender mediation (VOM): a restorative justice approach in which the victim and the offender, with the assistance of a mediator, work to resolve the conflict and consequences of the o
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