soc209 lc 8.doc

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Zachary Levinsky

soc209 - lc - march 5 2012 Sentencing soc209 Tutorial: thursday night - 630 to 830 i IB 380 ** Remedies s. 24 - thinking abour remedies under the charter - various remedies. - if the law violates the charter : you get strike out the part of the law or you can strike out the entire law. (for eg, the law has no force and effect for eg there are no force and effect law in gun mandatory minimums.) - you can also interpret a law narrolw - you can say that it applies only in secific cases - its being more specific than it sound s- its something written brodaly - that the legistlator didnt really intend - so its not really covered by the law. - it can also read in features to the law - and reinterpret the law. - it can also declare a constitutional exemption - in a particular case - the law vilates your charter rights nad you are not covered by that law. - you go for more general broad categorie s- in this particular case, it doesnt aply and it violates the charter this is what these things are saying. In term so fyour rights being violated in a criminal case: the crown did soemthing that they were supose to do for eg. - you can stop the trial/ order entirely and get a new trial. - or completey stop the proceddings entirly - you can stop criminal prosecution. - they can also exclude evidence. - it is obtianed ina propeor or legal way it can excluse evidence. - They look at the general standard** - for eg, a case r vs greffe - there is no justified grounds in his case - for him being chaerged or pulled over - polcie had no justified means to pull him over for drug offence so they pullled him over for a searcha dn found heroine. The extreme court of canada excluded that that evidence becusae of the administation of justice being put in dispute. (the supreme court of canada advocated. ) - lots of people dont like this becusae it lets a lot of poeple go free. - thee cases generally get a lot of media attention becusae poeple get off at a technicallity during this point. bu tit is importnat to remember that is it better to let a 100 guilty poeple go free than convinct one guilty individual. * (for eg wrongful conviction) always investiaagate why it is called a techincality? it is called this becsae we wnat tp punish this individual more harshly* Problems with the Charter: 1. Only individual rights - they are not about group rights. so the charter is not a social charter in that regard. In quebec on 2002 a claimw as heard by the supreme court of canada - suggesting that the welfare rates for 100$ recived under 30 was unconsittionla - the quebec women launched this claim. - protecting that this was an individual rights -t he court decided nothing - there is nothing in that charter that places a positive obligation on the state. * not a social charter. 2. Very expensive to launch a challenge: prohibited from most indivudals from going this route. - you see a lot of challenge brought forth by corporations nad poeple who have the reousreces nad time to launch a challenge. we see this on the ciases of mrjiunana - the cliam of marijuna - sits around and hoping to get acught becusae he wants to launch a charter. -poeple who are younger - more impoverished background - cant really do this. 3. should judges be able to make laws? : shoud jduges have the power to make law, this is more and more recently - the understnading that they are not democratically elected poeple, they are not elected that means they are not accountable to the public. - taking a partiular power of law away from them. rmr what the charter is aiming to do: create some neutral body from the body of politics. to keep people in check. 4.. Hampers police ability to enforce laws: there is sometimes quite owenerous tasks placed on police. - they argue that the charter makes it more difficult to successfully prosecute criminals, We see this again being brought up more in 911 and terrorist affairs. (understanding: that we shouldnt be restirciting police powers in these cases becusae we might loose information. ) 5. S. 1 and 33 exclusions - part of our reading: sec 1 - we talked about the exclusions, the OAX test and how thye work. sec 33 - eclusiosn allow procinvces nad terroritories to opt out. of the charter in a particular law. for eg, this law is not convered by the charter. the provinces can opt out of charter provisions and nthey have to be speicfic which aws they are opting out of the charter. for eg, in quebec they use this to restrict this to use english on signs. * Sentencing and the Court process entirly: Calssifcation of offences: summary conviction: less serious, tired before judge in provincial, dealt with quickly. - indicitable: - more serious offences, may invvole premilimiary hearings, may invovle juries, Hybrid: crown may dedice whter to proceed with summary ofindictalbe convtion. - police have the right to detain you and search you. - doesnt have to be reaonsalbe grounds - tis a less firm threshold than that. its porobable. * - its the frist set: this investigative dentiton - you can be held as a suspect - under certain conditions - theres a warrant. - the arrest is acualy where they have the legal right to deprive you of liberty. - the right to counsel: section 10 b - gives you the riht to contact the lawyer without delay. - the right to contact the lawyer without delay and also to talk to that lawyer privately. - description of the indiivaul - circumesntaces that relate to the offence, if the charge is a summary conviction charge: the suspects is usually relaesed on their own recognisance with a promise to appear in court. if its higher offence -they need resonable nad probable evidnec e- higher threshold - they need reasonable nad porbable grounds. if you are charged with an indictalbe offence: finger picture, if the police believe hte acucsed wont show up to trial -they are locked in tiral cell or locked up to await hearing on the charges and hearing on bial. if police think you are likely to flee - they put youto a jail centre to bail. the judge decides if you get to be free and are able to bail before trial. Judicial Interim Release a lot of this comes from 1972 - let suspects back to the community as they await their trail it may be deined without a reasonable cause* the jduge or the mastigrate has to release the accused. bail: may not be denied ithout reasonable cause. - detention necessayr prior to trail based on : prior convictions - maybe this person has a past of convictions or etc, - other current charges - there are multipple charges usually laid in front of courts when they are brought to trail. -previous failure to appear. Reasons for dentetion: - they reasons have to be givent o the jduge. - fear will not show up for court - not sure, then thye hold you. - fear that you may reoffend - maybe you are a high end offender. that you may offend again. - have not arranged bail - you have set upsomeone or havent been able to pay for it. unsecure bail - that means the person doesnt have tp pay anything upfront. which you remain liable for that full amount if you dont apear - they try to make sure you are going to appear in court. - you are still liable for that offence. full secure bail: where the person has to pay it up front - and you loose tha tmoney if you dont apear in court. Generally, the courts have sugested that bial cant be that high - that it estentially become sa detention order. remand: up to 80% of provincial jail populations are prinsoners on remand. - these are peopel who have not yet been found guilty. - there are a number onf ceoncerns with Remand: Rmenad concerns: lack of treamtnet programming and serice -t heres no judge ordering, determination of guilt, not anger maangement classes, and we could see why there are no serivces? you are obviously suggesttiong that the person is guilty by giving them serivces -but helping them with stuff they may not have. there i sno programming. - there is an uncertain length of stay - depends how long your case goes to court and to trial -so a lot of the cases- there are a number of suicides that have happened and youth dentention centres. - there are abusive and oppressive conditions. - the idea is to make sure they are able to be back in the community as they await a trial. Access to Legal Representation (section 10 b of the charter.) - right to ratin legal counsel - must beinforme by police of that right. - general charter deicsion have extended this to include legal aid lawyers. - you are entitled to a legal aid lawyer in certain conditions as well. - permitted to contact lawyer before statement. - contact police before you make the statement. - must be given a toll free number for duty counsel where you can speak to legal aid - so if youd ont have the money or dont know one - the police ontario have to give you a toll free number for duty counsel. Legal Aid: - so ontario was the frist proince ti implement legal aid - in 1967 - in Ontario. - the costs increased dramatically over the next fee years - the feral govt reduced its con
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