Law 2101 Study Guide - High Standard Manufacturing Company, Determinative, Duty Counsel

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9 Nov 2011
Criminal Procedure
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
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
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
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
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
More serious offences
Accused normally has the option of judge alone or judge and
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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
Most minor, often nuisance offences
Relatively light punishment
One trial option – judge alone in the Ontario Court without a
preliminary inquiry
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
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
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