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Criminal Procedure

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Law 2101
Mysty Sybil Clapton

Criminal Procedure Investigation • Responsibility rests largely with the police • Most investigations commence with a complaint from a member of the public, but police are sometimes proactive • Generally, it is the police who decide whether to lay charges (based on reasonable grounds to believe the suspect has committed an offence) ○ Wishes of victims considered but not determinative ○ Private prosecutions rare and subject to public control Prosecution • Responsibility rests largely with Crown Attorney’s offices • Crowns are quasi-judicial officers whose task is to achieve justice, not obtain a conviction ○ Although they are frequently, but not always, the same thing • Crowns screen cases and prosecute only those cases that are in the public interest and for which there is a reasonable prospect of conviction • Must disclose case to the accused in advance of trail Defence • Normally performed by private lawyers paid personally by the accused or by legal aid • A narrower role, directed almost exclusively at protecting the interests of the client ○ Subject to duties owed to the court • Can assume an almost purely adversarial role towards the prosecution • No duty to disclose the defence case to the prosecution Trials • Most trials are before judge alone in Ontario Court of Justice • Some more serious charges are before judge alone, or judge and jury in Superior Court of Justice ○ In a judge alone trial the judge decides the facts ○ In a jury case the jury decides the facts, the judge directs them as to the relevant law • Trial options determined by the nature of the alleged offence • Three types of offences ○ Indictable  More serious offences  Accused normally has the option of judge alone or judge and jury  Accused normally has the right to have a preliminary inquiry • Court process meant to screen out frivolous prosecutions and afford the accused an opportunity to probe the Crown’s case • If a preliminary inquiry is held, the trial occurs on Superior Court ○ Summary  Most minor, often nuisance offences  Relatively light punishment  One trial option – judge alone in the Ontario Court without a preliminary inquiry ○ Hybrid  Biggest category  Offences for which the prosecution gets to choose whether to proceed by indictment or by way of summary conviction  Once prosecution chooses, accused has the trial options (if any exist) for the applicable category described above Regulating Investigation • Legal rules regulate what the police can and cannot do in the investigation of offences • Attempt to achieve a balance between the community interest in law enforcement and the individual interests in liberty, privacy, security of the person, dignity, autonomy, etc. • Often extremely controversial • We will address some of the major rules ○ Note that there are often important exceptions and nuances Arbitrary Detention • The police often detain people when investigating offences ○ Meaning they assume control the movement of a person either physically or psychologically ○ This is usually before they have grounds to arrest the person • Little statutory regulation of this • Charter s.9 protects against arbitrary detentions • Arbitrary detentions occur all the time ○ Traffic and impairment driving enforcement • But outside context of driving-related enforcement there is no general power to detain individuals arbitrarily • However, the police do have the power to detain for investigative purposes when the detention is not arbitrary but also not authorized by powers of arrest Investigative Detention • Reasonable grounds to detain – a reasonable suspicion in all the circumstances that a person is connected to a particular crime ○ There must be a “clear nexus between the individual to be detained and a recent or ongoing criminal offence” ○ Cannot be based on a hunch, even based on intuition gained by experience • Reasonable grounds to detain ○ Not a high standard  Higher than mere suspicion but lower than reasonable grounds to believe  Quite a bit lower, based on how courts have interpreted reasonable suspicion ○ Risk that racist views will be incorporated into reasonable suspicion • Detention must be reasonably necessary in the circumstances – consideration of the reason for and manner and extent of the detention ○ In theory, the detention must be of brief duration and cannot become a de facto arrest with all its accompanying restraint ○ In reality, these limits are constantly being tested and often expanded Investigative Search • A power of search incidental to investigative detention exists, although searches are not permitted in all circumstances • The officer must reasonably suspect that his or her own safety or the safety of others is at risk ○ The officer does not need to reasonably believe this • The search must be confined in scope to an intrusion reasonably designed to locate weapons, not evidence ○ Police are allowed to perform at least a frisk search, and often more • The search must be carried out in a reasonable manner Search and Seizure • Police often search premises, places and people during investigations • When they find items or information of interest, they seize it for use in a prosecution • Searches and seizures can adversely impact on a person’s privacy and liberty • As a result, the law exhibits a preference for prior judicial authorization Warrants • Many provisions in the Criminal Code authorize searches and/or seizures, usually but not always under warrant • Warrants are issued by judicial officers based on reasonable grounds to believe that an offence has occurred and that evidence of the offence will be found at the locations sought to be searched • Reasonable grounds exist “where credibly-based probability replaces suspicion” ○ This does not require proof even on a balance of probabilities ○ If the inference or specific criminal activity is a reasonable Warrantless Searches • The law also authorizes the police to conduct warrantless searches in a number of situations • The most common and probably most significant situation is when a person is searched incident to their arrest Search Incident to Arrest • Cloutier v. Langlois • No requirement for reasonable grounds to believe evidence will be found • Must be a lawful arrest • Must not be conducted in abusive fashion • Search must be incidental to the arrest, the police must be attempting to achieve some valid purpose connected to the arrest • The police can generally search incident to arrest alm
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