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CRIM 2652
Anna Pratt

CRIM 2652 BOOK NOTES – WINTER TERM JANUARY 10 , 2013 Griffiths: Chapter 6 (The Criminal Courts) - There are four levels of courts that deal with criminal cases: o Provincial/territorial courts o Provincial superior courts o Provincial appellate courts o Supreme court of Canada - The courts are responsible for: o determining the guilt or innocence of accused persons o imposing appropriate sentence on those who are convicted o ensuring that the rights of accused persons are protected - judicial independence: citizens have the right to have their cases tried by tribunals that are fair, impartial, and immune from political interference - offences heard most often in adult criminal court are (based on 2006/2007): o common assault o impaired driving The Provincial Court System - every province and territory has two levels: provincial and superior o Nunavut is the exception – Nunavut court of justice is unified (can hear any type of case) Provincial Courts - Nearly all criminal cases are begun and disposed here - Judges are appointed by provinces and sit without juries - Also hear cases under the Youth Criminal Justice Act - Although superior courts hear proportionately more serious offences and more cases involving multiple offences, provincial courts hear more of these cases in terms of absolute numbers Federal Courts - Supreme Court of Canada is located in Ottawa but hears cases from all provinces and territories - Established under the Constitution Act (1867) - The governor in council appoints the nine judges of the supreme court o Judges selected from the major regions of the country, but three must be from Quebec - Decisions of the Supreme Court cannot be appealed - Two other federal courts are: o The Federal Court (has a trial court and a court of appeal, and hears all cases that concern matters of federal law) o Tax Court Where Do Judges Come From? - Judges at the provincial court are appointed by provincial governments - Judges of the superior court are appointed by the federal government - Appointments are for life so that once on the bench judges need not worry of making controversial decisions - Each province/territory has a Judicial Advisory Committee composed of laypeople and lawyers - The focus in Canada has been on judicial independence rather than judicial accountability o At the federal level, the Office of the Commissioner for Federal Judicial Affairs performs a similar function for the federal Minister of Justice - Supporters of the status quo argue that electing judges would politicize the judiciary o Supporters of altering the current selection process contend that, given the increasing activism of the courts in addressing critical issues of social policy, it is unlikely that the current structure for appointing judges will change - Elderly, white, Anglo males are overrepresented in the judiciary Specialized Provincial Courts - Recent trend is that provincial courts are becoming more specialized o Example: creating domestic violence courts - Specialized courts reflect the concept of therapeutic jurisprudence, wherein the criminal law and criminal courts can function as change agents to have a positive impact on clients’ lives - Intent is to move away from an adversarial approach and to focus on treatment intervention and rehabilitation - There is an emphasis on dialogue among all parties Community Courts - Assume a problem-solving approach with offenders - Intent of the courts is not to criminalize offenders, but to link them with social services and treatment resources - Cases are processed in an average of 2 days, opposed to 45 days in regular courts - Critics state it is a waste of money and has not demonstrated positive outcomes for clients Mental Health Courts - The objective of the court is to provide a forum to address pre-trial issues of the accused person’s fitness to stand trial and to reduce the “revolving door” syndrome of reoffending and involvement in the justice system of mentally ill persons - More people are released rather than remanded into custody due to in-house assessments - If a program had been completed, lower rates of reoffending and violence has been shown - Lack of communication among the parties and of continuity in personnel assigned to the court hinder its effectiveness and limit the court to being a “band-aid” solution Domestic Violence Courts - Designed specifically to hear criminal law charges relating to domestic violence and to provide a mechanism for early intervention - In Ontario, these courts adapt two main approaches: o Early intervention and counselling o Coordinated prosecution - In cases where there are no injuries, no weapons, and accused pleads guilty a counselling/early intervention approach is used o Accused is required to complete the Partner Assault Response program - Judicial Interim Release (bail): release by a judge or JP a person who has been charged with a criminal offence pending a court appearance - In cases where accused is a repeat offender or inflicts serious injury, a coordinated-prosecution approach is taken o Specialized investigations by police and prosecution of offenders by Crown attorneys Aboriginal Courts - Section 718.2(e) of the Criminal Code requires judges to consider sentencing options other than incarceration particularly for Aboriginal offenders o Example of an alternative option is restorative justice The Gladue Court (Toronto) - Meets twice a week and deals with the cases of Aboriginal people charged in downtown Toronto - Handles bail hearings, remands, trials, and sentencing - Judge, crown, and the defence lawyers, court clerks, and court workers are all aboriginals Tsuu T’ina Nation Peacemaker Court (Alberta) - Involves a peacemaker working with the crown counsel to identify cases that could appropriately be diverted to the community’s peacemaking program - Plan of action is designed, the purpose of which is to facilitate healing and address the issues associated with the harm done - Interventions include apologies, restitution payments, treatment programs, and required traditional feast Drug Treatment Courts - Alternative forum for responding to offenders who have been convicted of drug-related offences - Avoid incarceration by agreeing to abide by specified conditions o If conditions are failed, offenders are processed through regular courts - Approach of the court is non-adversarial and there is an attempt to link offenders with treatment programs and services Provincial/Territorial Circuit Courts - Circuit court parties, composed of a judge, a court clerk, a defence lawyer, a crown counsel, and perhaps a translator, travel to communities to hold court - Most extensive circuit courts are in NWT, Northwestern Ontario, Northern Quebec and Nunavut - Concerns: o Lengthy court dockets resulting from backlog of cases o Time constraints on the court party o Marathon court sessions, frequently lasting up to 12 hours o Shortage of interpreters (aboriginals may understand little English or French) o General difficulties due to cultural differences between Canadian Law and aboriginal offenders - Difficult issue is whether to remove the convicted person from the community and place them in confinement very far away or not - Restorative justice strategies are often applied in this environment - Judges must often balance the need to develop culturally and community-relevant approaches to conflict resolution and case processing with the need to ensure that the rights and safety of crime victims are protected Superior Courts - Highest level of courts in a province and are administered by the provincial government - Generally have two levels: o Trial o Appeal - They may be included in the same court, with two divisions (trial and appeal), or may involve two separate courts - Trial-level superior court hears cases involving serious criminal offences - Appeal-level superior court hears criminal appeals (and civil appeals) - Hear cases involving the most serious offences, such as murder a - Trials may involve juries - In contrast to trial court judges who work alone, appeal courts are composed of three judges and the decision is a group decision The Formal Criminal Courts Versus Restorative Justice Approaches Attribute Court Restorative Justice Participants Experts Local people, non-residents Process Adversarial, state vs. Consensus, community vs. offender problem Central Issue Laws Broken Relationship broken focus Guilt Identification of victim/offender/community Tools Punishment, control Healing/support Procedure Fixed rules Flexible guidelines Supreme Court Decisions: Balancing Security and the Rights of the Accused - Supreme court receives hundreds of applications for leave to appeal, but grants only about 10% - Cases heard by odd number of judges to avoid ties - Cases decided by the Supreme Court often involve interpretations of the Charter of Rights or complicated issues in private and public law - The federal government sometimes may ask the supreme court for a legal opinion on an important legal decision – known as a “reference” - There is an inherent tension between individual rights as set out in the Charter of Rights and Freedoms and the need to protect the general public - Court has been criticized on one hand for engaging in social activism in its decision making, and for being too deferential to law enforcement o Conflicting findings suggest that the extent to which the supreme court can be considered an activist court depends to a large extent on which cases are examined and on which criteria are being applied to assess “activism” Mode of Trial - The “trier of fact” in a criminal case (the judge) decides whether the guilt of the accused person has been proved beyond a reasonable doubt - Jury trials are mandatory in some cases, available option in many, and prohibited in others o Jury trials not available for summary conviction offences or youth court - Clerk assists in the administration of the trial - Stenographer records all proceedings Summary Trial - Summary conviction offences are resolved in provincial court and do not involve juries - Sentences are usually less severe Indictable Offences - Criminal code defines three categories of indictable offences: o 1) offences under the absolute jurisdiction of provincial courts o 2) offences under the absolute jurisdiction of superior courts o 3) electable offences - Election: right of the accused to choose to be tried by a judge instead of a jury Absolute Jurisdiction of Provincial Courts - Section 553 of the Criminal code lists less serious indictable and hybrid offences where accused has no choice but to be tried in a provincial court - Offences include: theft, obtaining money on false pretenses, fraud, mischief - No jury trials in provincial courts Absolute Jurisdiction of Superior Courts - Section 469 of the Criminal code lists serious offences that are also non-electable offences - List includes murder, treason and piracy - These cases must be tried in a superior court before a jury - The processing of non-electable offences begin with a preliminary hearing - Preliminary hearing: a hearing to determine if there is sufficient evidence to warrant a criminal trial o Held to determine if there is prima facie (sufficient evidence to justify time and expense of criminal trial - The accused can waive the right to a preliminary hearing and go directly to trial - Preferring the indictment: provincial attorney general skips the preliminary hearing to go straight to trial Electable Offences - The accused person has three modes of trial to choose from: o 1) trial by a provincial/territorial judge o 2) trial by a superior court judge sitting alone o 3) trial by a superior court judge and jury - Charter guarantees the right to a jury if offence carries a maximum sentence of more than 5 years imprisonment Structures of Judicial Accountability - Primary structure of accountability for federally appointed judges is the Canadian Judicial Council, which is charged by Chief Justice of Canada and made up of judges - Council provides continuing education for judges, address issues concerning the administration of justice, and makes recommendations on judicial salaries and benefits - To exercise judicial accountability, council investigates complaints o Complaints arise from remarks and/or inappropriate conduct either on or off the bench o Gender bias, racial bias, religious bias, conflict of interest and cultural insensitivity are grounds for a complaint - Sanctions include: removal from bench, leave of absence with pay, letter of reprimand, counselling, educational workshops, or requirement that judge apologize - Conduct of provincial court judges is held to same standards but is monitored by local bodies rather than by the federal council - Observers have questioned the adequacy of the structures for judicial accountability, especially in view of the fact that judges are generally appointed for life - Another issue is that the accountability mechanism is composed of judges and other members of the legal profession Delay and Backlog in Criminal Court Cases - Case delay and backlog are widespread in criminal justice system, and seem immune from reform efforts - Staying (suspension or discontinuance) of nearly 100,000 cases a year is owning in part to failures to get the cases to court within a reasonable period - Situation due to: o Lack of judicial resources o Ineffective use of resources o Too few judges o Complexity of criminal cases o Attempts by legal counsel and inmates to lengthen the period of remand - One of the factors identified as contributing to the transformation of the criminal trial into a lengthy one was the Charter of Rights and Freedoms and new provisions for evidence and procedure Grossman and Roberts: Chapter 13 (The Decision to Detain or Release) - Bail decisions are made by a justice of peace, provincial court judge or superior court judge - Bail is a form of guarantee – usually an amount of money – undertaken by the accused or a surety to guarantee that the person in custody will appear for trial if they are released o Bail must be set within reach of the accused or the surety - Bail is usually a way to grant freedom to the accused, who, in exchange, agrees to respect certain conditions while awaiting trial - Detention can be justified by one or more of the following three reasons: o Ensure the accused attends court o To protect the public o To maintain confidence in the administration of justice Discretion: A Look Back To Assist in Understanding Contemporary Events - Today’s justices of the peace and judges are asked to safeguard the public interest and the reputation of the administration of justice by locking up until the day of their trial, individuals charged with crimes in situations where their release is contrary to the common good The Pioneering Work of Professor Friedland - His studies made it clear that detention prior to quick guilty plea was the option chosen by many detainees in order to avoid prolonged pre-trial detention - These measures provided police powers to avoid arrest or detention, identification of clear legislative reasons establishing when detention is justified, and onus that rests on Crown to prove bail should be denied 1. The Primary Ground for Denying Bail: The Risk of Flight - The primary justification for refusing to grant bail rests on the common belief that judging from the person’s record, past, contemporary actions, and possible lengthy jail period, the accused is at risk of fleeing the country or town - Courts will primarily examine: o Nature of the allegation, record with particular attention to the accused’s history of compliance with court orders, strength of the accusation, ties to the community, the likely sentence, etc. 2. The Second Ground: The Risk of Further Crimes - Courts must weigh the likelihood of further misconduct and assessing the risk that further crimes will be committed based on previous criminal charges or the accused’s history - Risk analysis must take into account the legislative criteria and the contextual background o Example: fighting addictions, poverty, racism, “sad life” deficits - Offender is often granted two chances before bail is revoked - In some cases (mostly dealing with firearms, murder or drug trafficking), the accused must demonstrate that his freedom is justified o Known as reverse onus  Keeping with the traditional view that serious allegations of misconduct be treated with great concern for the public interest and also with the common- sense view that the accused is better placed to explain how their interim liberty is consistent with with public safety 3. The Third Ground: Public Confidence in Justice - Reverses the traditional exercise of discretion and appears to reflect a legislative design consonant with the view that certain alleged offences or offenders should be detained with a view to fostering public confidence in the administration of judges Section 518: Evidence at a Hearing Including Hearsay - According to section 518 of the criminal code, the justice who presides over the hearing may receive and base their decision on evidence considered credible or trustworthy - hearsay evidence is defined as information that is not witness directly by the person testifying o example: police officer may testify that a civilian told her that her husband slashed her repeatedly in the torso area with a Rambo-style knife  the police officer did not see this, but is testifying what he was told The Three Day Rule and Other Causes of Delay, S.516 - in more and more cases the accused is requesting that proceedings be ended because of unreasonable delay before a bail hearing Legal Manoeuvring as a Substitute for Legal Compliance with Rules - another cause for delay relates to tactics used by the two parties – the accused and the state o each side seeks to gain a tactical advantage for the trial as a result of:  1) the emphasis placed on discretion in the legislation  2) the existence of the legal factor often referred to as “the strength of the crown’s case” - Most practices during bail hearings serve tactical purposes instead of addressing whether the person accused should be detained or not Bail Decisions on Review: Further Exercise of Discretion - Judge who reviews the bail decision must take a new look at the evidence submitted before the original judge and take into account any additional evidence offered by the parties - Judge may exercise discretion in deciding whether the accused has demonstrated that the previous decision should be overruled Bail Does Not Amount to Freedom: Limited Liberty is the Norm - Most detainees are bound by stringent rules and often guarantee their pledge of good behaviour by means of monetary deposits and charges against real property - Media brags about electronic surveillance – including in house cameras and electronic tagging - Moodle: “Bail System Not Guilty as Charged” (News Article) - Research in Canada has discovered that people of colour are less likely to be released on bail and more likely to be released on onerous bail conditions - No evidence that further restricting bail or ending it will make us safer o Vast majority of people released on bail return to court as required and follow the conditions placed o The majority of the minority who do not and are charged with failing to comply with the conditions of their bail commit no other offence but the breach of their condition (e.g. out past curfew) - Electronic monitoring refers to an electronic ankle bracelet worn by an accused person which emits a signal that can be tracked by a monitoring station - Only a wealthier accused person who can pay the cost of electronic monitoring by a private company can get the advantage of the benefits of the technology in convincing the judge it is safe to release him on bail - It is believed that if the man in the Eaton Centre shooting had electronic monitoring, the tragedy would never have happened - Electronic monitoring can become a complete substitute for pre-trial detention Kit: Getting Bail – Ideology in Action Introduction - Criminal justice system described as a “morality play” o A play to which all members of society have season tickets - Majority of our entertainment features the commission of crime, its detection and prosecution - The courtrooms that create the largest number of outcomes on a daily basis are those with the mandate to decide the immediate fate of individuals who have been arrested for a criminal offence but who have not yet been tried - “show cause” hearing commenced before justice of the peace without same formality and attention to legal procedure as observed in other stages of criminal justice process o Justice of the peace decides whether the accused is released or detained - The instrumentality of the role will depend on the information that is presented or withheld by other courtroom actors o Availability of decision-making information is dependent on decisions that take place behind the scenes - Members of the regular cast: crown attorneys, defence attorneys, variety of clerks, court reporters, other officials employed by the Toronto Police Department A Day in the Life of Courtroom 101 - Courtroom 101 – a bail court at Old City Hall in Toronto - Held Down: they will be brought back to the prisoner’s box at a later time o Some individuals are held down because counsel has not yet made an appearance, while for others the paperwork has not been received - For the majority of “consent releases” (accused being released by the consent of the crown), the court orders a release requirement of a surety bail coupled with a variety of court-ordered conditions - When the surety is not named at court a decision that the good character and personal wealth of the potential surety are acceptable has to be made by another justice, usually with the Crown’s consent o If any sureties are found to be unacceptable, the accused’s consent release order will translate into further detention The Script: Precepts of Innocence, Equality, and Social Defence - The mandate of the bail court is to determine whether persons accused of a crime and arrested by the police should be detained in jail, release with some specific supervisory conditions, or released on their own agreement to appear for trial - Any limitation on the liberty of the accused before trial goes against a fundamental principle of criminal law – “innocent until proven guilty” - Charter guarantees individual liberty: “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” o “everyone has the right not to be arbitrarily detained or imprisoned” o “not to be denied reasonable bail without just cause” - The idea of providing a sum of cash to prove that they will attend court undermined equality of treatment because only those with financial resources could claim their legal right to a presumption of innocence - Bail Reform Act (1970) o monetary resources were no longer necessary o presumption that release would be the norm o onus would be placed on the crown to demonstrate “just cause” for any form of liberty restriction - Canadian law enforcement is grounded in the basic principle of social defence o The detention may be necessary for public interest – protection or safety of the public - Charter of Rights and Freedoms guarantees Canadians rights of liberty and equality “subject only to such reasonable limits prescribed by the law as can be demonstrably justified in a free and democratic society” o Limits the law considers justifiable are the risk that an accused will fail to appear or the risk posed to societal security The “Gap” Between Legal Principle and Legal Practice - While laws governing release practices typically state a presumption of release, actual release practices do not embody such a presumption - Majority of individuals imprisoned as remand prisoners are detained on secondary grounds - To meet the social defence objective by mean of pretrial custody is a costly endeavour o Example: defendant who is detained on a petty theft may cost the government thousands of dollars - One study that examined over-prediction errors concluded that “nineteen defendants would have to be inappropriately detained in order to prevent a single pretrial arrest - Pretrial detention is consistently correlated with a more severe disposition - Even when prior record and type of offence are held constant, differential treatment remains - Research suggests there is a direct causal connection between denial of bail on the one hand and conviction, frequency of incarceration, and length of incarceration on the other o Contradicts rational connection between the law and preservation of the principles of legal innocence and social defence - When there is a direct and unwarranted connection between trial outcome and group affiliation, “the right to liberty” and “the right to be presumed innocent until guilt is proven” become privileges more easily claimed by advantaged groups - Women, black, aboriginal and immigrant groups are more likely to be detained prior to their trial and/or more likely to be unfavourably affected by the process - Detainees are more likely to be drawn from groups with few social resources or to be those with morally questionable lifestyles than those who have been charged with an act of violence o Thus, they do not truly pose a threat to society Discretionary Decision-Making behind the Scenes - Discretionary authority carries with it the possibility of selective law enforcement against certain groups or, more simply put, of legal discrimination - The legal code has hegemonic power precisely because it interlocks with the social code at critical junctures (Boyle) - At each stage of the justice process, the decision-makers who select the information to be presented are helping to recreate a legal mind-set that will act “as the bridge between indefinite words and closure of a finite, albeit fuzzy, social world” Selecting Information to Justify the Social Order - Most obvious instance of non-judicial decision making concerns consent releases - Despite the prevalence of pre-court agreements between defence and crown attorneys, such negotiations do not always appear to be legally mandated - Unless the accused is being released on their own undertaking, without conditions, the Crown must demonstrate the necessity for a greater infringement on liberty - Although there is there is no formal accountability for the majority of discretionary decisions made by the crown, presumably the accountability Is encompassed within the “Minister of Justice” role they are expected to play o Crown is expected to seek justice rather than perform the adversarial task of seeking imprisonment of everyone - The major piece of information in the Crown’s arsenal is a confidential document, termed the “show cause” statement, or “dope sheet” o Information is prepared by arresting officer and has information on the character of the accused and a recommendation for pretrial fate - Although the purpose for limiting pretrial freedom is not to promote the traditional aims of punishment, the justifications of retribution, deterrence, and rehabilitation are as much a part of pre-trial decision-making as they are at the sentencing stage after finding of guilt - Many conditions placed on accused persons both increase the power of the police to control problematic populations and invite future charges of failure to comply - For those who are originally charged with certain kinds of offences certain conditions are the norm and there is a high risk that those who commit these offences will breach the condition o Example: prostitutes with area conditions or drug addicts o Makes sense to plead guilty immediately regardless of the evidence to prevent serving dead time - Primary Ground Factors: o Ties in the community, job status, assets, marital status, seriousness of the charge, whether they have failed to appear in court, any difficulties when arrested or apprehended - Because the Crown is not required to document the relevant grounds, it is not always possible to determine which ground is being argued or the ground upon which the court’s judgment is based - The lack of guidelines in the law as to what factors should be considered as evidence of risk and the merging of primary and secondary grounds in practice allows the Crown to select negative information from reports supplied by the police - Assessment of secondary reason rests on the assumption that charges are validly laid, so the defence counsel is prevented from examining their client as to the facts or circumstances concerning a charge that is suspect and will never hold up at trial - Based on a balance of probabilities, the bail court predicts in order to address and prevent them o Favoured method is a surety release order  Theory is that an accused will be deterred from absconding and thus inflicting a loss on his sureties who will normally be friends or relatives Detention: Justifying Discretion by “Encouraging” Guilty Pleas - There is a distinction between the rights of accused persons and those who have been convicted of a charge - Where there is legitimate cause for detention, those who are detained in custody are not to be punished - Persons detained in jail prior to sentencing are subjected to worse living conditions than are sentenced prisoners o Suffers loss of freedom that is enjoyed by those who make bail and is denied many benefits granted to sentenced persons in the inmate community - Overcrowding is the norm, communication with outside community is restricted, security is intense, remanded inmates do not have access to correctional programs - Criminal code provides no protections that address the right of a person in pretrial custody to make full answer or defence or to substantiate allegations of abuse occurring while in custody - To reject a plea bargain means serving more time in custody prior to sentence - The factors that push individuals to the choice of a plea bargain have less to do with their guilt or innocence than with the reality of pretrial detention “Reasonable Limits”: The Intersection of Legal and Social Codes - Positive information about an accused is most readily available when it is provided by the police in their confidential recommendations, or by a defence lawyer prepared to spend an untypical amount of time contesting the Crown’s decisions - The reasonable limits that are specified in Canada’s bail law are the risk that an accused person will not appear at trial or will undermine the safety of citizens - The public interest is hardly served because the process picks up and detains habitual shoplifters, prostitutes and substance users but releases the potentially violent - Once detained, innocent and guilty are punished alike, an since punishment can best be mitigated through the provision of a plea of guilty, social factors become the foundation upon which criminal statistics are constructed - Bail process is a mechanism for systematizing inequality - Although remand detention is extremely costly for provincial governments, these costs are not distributed equally between the budges of different ministries o Measures that would reduce pretrial custody carry immediate economic risks for the ministries of the Attorney General - Implanting the bail process into this fragmented institutional structure results in conservative decisions about where criminality lies, but this combination of process and structure exacts extravagant costs in both monetary and social terms JANUARY 17 , 2013 Moodle: R V. Gladue - Appellant stabbed her husband and killed him outside her house - The neighbour was a witness to most of the events and saw that the appellant seemed to have felt gratification from murdering the father of her children - There were only two questions raised in regards to her aboriginal descent -- if she was aboriginal and if the community was an aboriginal community - She was sentenced to 3 years in prison with a 10 year gun probation - Question of whether s.718 of the Criminal code was properly interpreted when imposing a sentence o “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” - S.718(e) is more than simply a re-affirmation of existing sentencing principles o The remedial component consists not only in the fact that it codifies a principle of sentencing, but in its direction to sentencing judges to undertake the process of sentencing aboriginal ofefnders differently  Violent and serious offences will result in imprisonment for aboriginal offenders as often as non-aboriginal offenders. What s.718.2(e) does alter is the method of analysis which each sentencing judge must use in determining a fit sentence - the logical meaning to be derived from the special reference to aboriginal offenders is that sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different from those of non-aboriginals - because it has always been a principle of sentencing that courts should consider other sanctions other than imprisonment, the reference in s.718(e) to other offenders can be seen as a codification of existing law S. 718 Canadian Criminal Code - Section 718: fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: o A) denounce unlawful conduct o B) deter offender and others from committing offences o C) separate offenders from society o D) assist in rehabilitation o E) provide reparations for harm o F) promote sense of responsibility in offenders - Section 718.1: sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender - Section 718.2 A: court that imposes sentence shall take into consideration the following: o Sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances o All available sections other than imprisonment that are reasonable should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders TH JANUARY 24 , 2013 Grossman and Roberts: Chapter 7 (The Role of the Defence Counsel) - Criminal defence lawyers represent people who find themselves accused of crimes - Most of a defence lawyer’s time is spent helping clients long before their cases get to trial o Trying to help clients stay out or get out of jail The Client at the Police Station - The police must inform the detainee of his right to request a lawyer and must help him get in touch with one - The defence lawyer will almost always urge detainee to assert their right to remain silent - Police interrogators confront the detainee with overblown claims of a case against the person in hope of stimulating an incriminating statement o Can frighten an accused into agreeing to a lesser accusation, even if untrue  Which is why the law allows detainee may remain silent Release of the Client on Bail - Other task during the first phone call from the police station is to attempt to persuade the police to allow the detainee to be released on bail o It is believed to be the most important one in the criminal process - In preparation for a bail hearing, defence lawyer will need to help their client find a surety (someone who is willing to pledge a sum of money as a guarantee of that person’s ability to supervise the detainee if released) - Defence lawyers also must function as social workers or counsellors and help arrange for their clients to obtain treatment Defences - Criminal defences can generally be divided into two categories: o Factual defences  Involves a challenge to the evidence that the police have gathered during investigation o Legal Defences  Focuses on whether or not what the person is accused of doing should be considered “criminal” - Defence lawyer must gather information relevant to the case o Practice is known as the Crown providing “disclosure” to the defence - Defence lawyer presents the client with two options: o Plead guilty in the hope of obtaining a more lenient sentence from the court as a reward for sparing everyone the time and expense of a trial o Schedule a date for trial, at which time the client can plead not guilty and contest the prosecutor’s cast - Plea bargain: in exchange for giving up the right to a full trial, the accused receives the prosecutor’s recommendation for a more lenient sentence than would normally be sought in a trial sentencing Preparing For Trial - Preparing a case trial is like producing a film or play – a story on which the play will be based must be developed o Development of the narrative that takes into account evidence defence lawyer believes will be accepted by jury/judge and is consistent with innocence - By the time a defence lawyer becomes involved in a case, the prosecution narrative has already been constructed - The next element is the characters in the drama o What is there background? Are they neutral and impartial or do they have a motivation? - Defence lawyer must maintain the jury’s interest in the case o Example: using visual aids Constitutional Issues - Some trials are not about who did what, where, why, and to whom – instead, they may be focused on the law itself o Example: Dr. Morgentaler case of performing abortions. Supreme Court declared that anti-abortion laws violated the charter. Thus, his lawyer argued that it did not matter whether or not his client had performed abortions because the charter prohibited the government of Canada from making it a crime to do so  This means a criminal defence lawyer can make or unmake law - In some instances, criminal defence lawyers instead challenge only the scope of a particular criminal law, as opposed to the law itself o Instead of striking down the law, the argument would require the court to redefine the law in a way that would produce a more appropriate definition of the crime Griffiths: Chapter 7 – “The Prosecution of Criminal Cases” The Pre-Trial Process The Role of Crown Counsel - Crown attorneys are lawyers who represent the Crown (or government) in court  responsible for prosecuting criminal cases o Provincially appointed crown attorneys handling criminal code offences o Federally appointed crown attorneys handling violations of federal statutes - Provide advice to police officers - Prepare for trial (collect evidence from police, interview victims, etc) - Involved in negotiating pleas, developing trial strategies, managing witnesses Other Court Personnel - Court registrars or court clerks perform administrative tasks, such as appointing staff, managing court finances, etc. - Sheriffs assist court in jury management and providing security in the courtroom Laying an Information and Laying a Charge - An information is a document that outlines allegation contravened a criminal law - For certain offences, police authorized to issue summons o Accused are released on their own recognizance (responsible for ensuring they appear in court) - police and crown exercise a considerable amount of discretion in deciding whether to lay a charge o in 1/3 of all violent crimes and property crimes cleared by police, charges are not laid, and across country 30 percent of all criminal cases either stayed, dismissed, or withdrawn by prosecutors and judges - legal, administrative and political factors may influence decision to lay a charge o legal: reliability and admissibility of available evidence and credibility of witnesses o administrative: workload and case volume of the counsel’s office o political: need to maintain public’s confidence in justice system Compelling the Appearance of the Accused in Court Appearance Notice - if offence is not serious and police have no reason to believe accused will fail to appear in court, appearance notice can be issued followed by the laying of an information Summons - the police will lay the information first, in which case the JP will issue a summons, which states the allegation and directs person to appear in court on a certain day - if accused does not appear in court, judge may issue a warrant for arrest Arrest - if situation dictates, police can arrest without a warrant and then lay the information - three circumstances where immediate release might not occur: o 1) charge pertains to indictable offence o 2) police feel person will not appear in court o 3) it is in the public interest to detain the accused Release by the Police - JP gives police direction as to whether accused should be detained or released - For indictable offences (5 years or less) police has authority to release person from custody - When offence is summary, officer can issue an appearance notice Judicial Interim Release - Judicial Interim Release (or bail): release by a judge or JP of a person who has been charged with a criminal offence pending a court appearance o is overseen by a judicial functionary (JP) or by superior court judge if offence is serious - Persons can be detained by court only in situations necessary to ensure attendance in court, protect the public, maintain confidence in administration or judge - Any person charged with an offence has the right not to be denied bail without reasonable cause - Crown must demonstrate at a show cause hearing, that detention of the accused is necessary - Reverse onus: accused has to “show cause” why a release is justified - Accused persons may be asked to enter into a recognizance in which they agree to forfeit money if they fail to appear in court - Another option is to release accused on a recognizance in which a surety promises to forfeit money if accused doesn’t appear in court - Decision to grant bail influenced by: o Number of charges pending, whether accused has a fixed address, any concerns on background information - Decision of prosecutors to release an accused person on bail can have devastating consequences o Decision must be carefully considered to ensure accused will abide by conditions of release and will not be a risk to community Pre-Trial Remand - Remand: the status of accused persons in custody awaiting trial or sentencing - These individuals have not been sentenced, they are being held because it is feared they will not appear for court or may reoffend - All detention orders must be reviewed by a judge to determined whether continued detention is necessary - more adults held in custody awaiting trial/sentencing than there are in provincial/territorial custody - up to 80% of some provincial jail populations are composed of persons on remand - shift towards lesser remand sentences, but this ruins point of incarceration and may contribute to overcrowding and increased risk for staff and inmates Security Certificates - Security Certificates: a process whereby non-Canadian citizens who are deemed to be a threat to the security of the country can be held without charge for an indefinite period of time o Can only be used against non-citizens o Federal court’s decision in cases involving security certificates is final and cannot be reviewed - Much of the evidence in security certificate cases is heard in camera (behind closed doors), with only federal court judge and government lawyers present o Specific allegations against them and their sources are not disclosed to detainee o Evidence may be presented in court without detainee or their lawyer present Access to Legal Representation - All adults accused of crimes have the right to retain legal counsel - The right to retain counsel does not impose an absolute duty on government to provide all accused persons with free counsel Legal Aid - Legal aid services are delivered by lawyers in private practice, who are paid by a legal aid plan - Three models for the delivery of legal aid services: o 1) Judicare  Defendants who pass “means test” qualify for legal aid certificate and can retain a private lawyer, who bills legal aid plan for services rendered o 2) Staff  Salaried lawyers provide services through legal aid clinics o 3) Mixed  Both private and legal aid staff lawyers provide legal services  Services provided through a community clinic program - Spending on legal aid has been declining, due to stricter eligibility criteria and restrictions in both the types of cases covered by legal aid and the fees paid to lawyers Fitness to Stand Trial - Fundamental principle of common law is accused must be fit to stand trial - Accused person who cannot understand the object and consequences of proceedings because of a mental disorder are unable to instruct their counsel or appreciate that they are on trial - Fitness assessed by a psychiatrist while accused is remanded in custody or at a psychiatric facility Not Criminally Responsible on Account of Mental Disorder (NCRMD) - An assessment ordered by the court is used to determine this verdict, which is not a finding of guilt or a conviction for the offence - Those determined NCRMD can be placed in detention in a hospital, conditional discharge or absolute discharge Arraignment and Plea - Two most common pleas are “guilty” and “not guilty” - If guilty, case goes directly to sentencing - Accused may plead not guilty because they are innocent, because they have a plausible defence and want to exercise their right to trial, and/or because lawyer has advised them to - Accused who plead not guilty can change plea to guilty any time before the verdict Plea Bargaining - Plea Bargaining: an agreement whereby an accused pleads guilty in exchange for the promise of a benefit - One justification for plea bargaining is for the court system not to be overwhelmed by majority of cases going to trial - Belief that those who plead guilty will receive a lesser sentence than if convicted after trial Crime Victims and Plea Negotiation - Number of benefits associated with giving crime victims the right to participate in plea negotiations o E.g. victims can provide crown with information about incident - final responsibility for assessing the appropriateness of a plea agreement rests with Crown counsel Judges and Plea Bargaining - judge must determine that guilty plea has been entered into voluntarily and that the accused understands the nature and consequences of the plea Disclosure of Evidence - the crown must give the defence lawyer access to all evidence that might be presented by prosecution in a trial o especially any potential exculpatory evidence (evidence that might indicate the accused did not commit the crime) - failure to disclose evidence can trigger a charter remedy, because it impairs an accused person’s right to make full answer and defence to the charges - defence is not obliged to disclose material to the prosecution The Trial - trial takes place if accused person, who pleads not guilty, does not change plea and crown does not withdraw charges or terminate the matter with a stay of proceedings - stay of proceedings: an act by the Crown to terminate or suspend court proceedings after they have commenced - most cases do not go to trial because Crown attorney can screen out cases that may not succeed or those that have insufficient evidence to secure a conviction - majority of cases resolved via plea bargaining or by the crown council staying the proceedings The Jury - juries involved in determining guilt or innocence of accused persons, deciding parole eligibility for convicted offenders, and whether eligibility for parole is reduced - jury duty Is regarded as civic duty - responsibility for setting qualifications for jurors falls under provincial jurisdictions - juries are finders of fact, while role of the judge is to interpret the law and instruct the jurors - juries face pressure to reach a unanimous verdict and avoid a “hung jury” (situation in which consensus cannot be reached) - juries have difficulty understanding definition of “beyond a reasonable doubt”, a core concept in determination of guilt or innocence - concern that juries do not understand evidence presented at trial due to its complex presentation - CSI effect whereby jurors expect clear and unequivocal scientific evidence to be presented - Three important differences between trial by jury and trial by judge: o In jury trials, jury decides on facts and determines guilt, in trials with a juge alone, the judge determines law and facts o In jury trials, judge makes a “charge to the jury”, during which they instruct jurors about the law that applies o Judge gives reasons for their decisions, whereas jurors don’t Pre-trial Conferences - Discuss any matters to promote a fair and expeditious trial - Take place in judge’s chambers and involve off-the-record discussion of issues surrounding case - Provide opportunity for plea-bargaining The Case for the Crown - Prosecution calls witnesses and presents evidence in support of position that accused is guilty - Must produce evidence covering all major elements of the offence - Task of crown to prove the guilt of an accused person beyond a reasonable doubt The Case for the Defence - Can cross-examine crown witnesses and challenge the admissibility of crown evidence - Can state a no-evidence or insufficient-evidence motion to stop/end the trial - As part of case for the defence, accused may testify - Number of defences that can be used by accused persons charged with a crime: o The “you’ve got the wrong person” defence  Police arrested the wrong person, or complainant fabricated the allegation, and thus no crime was committed  May present evidence verifying alibi o Excuse-Based Defences  Consent: used if complainant agreed to engage in the activity in question  There is valid consent defence if the accused mistakenly believed complainant consented  Consent cannot be given by someone induced by a person abusing a position of trust, power, or authority  Automatism: performance of actions without conscious thought or intention  Not Criminally Responsible on Account of Mental Disorder (NCRMD) o Battered Woman Syndrome: condition characterized by feelings of social isolation, worthlessness, anxiety, depression, and low self-esteem - Procedural Defences: focuses on the conduct of the police or prosecution, or perhaps validity of the law itself o 1) challenging the validity of the applicable law –attack constitutionality of the law used to charge the accused o 2) Challenging the validity of the prosecution – claim police or prosecutors acted unfairly in investigation or charging of accused o 3) Contesting the admissibility of evidence gathered by police o 4) Seeking a remedy for violation of a Charter right Appeal - Right to appeal exists only in certain situations - Either crown prosecutor or defence lawyer can file an appeal - Distinction between grounds for appeal that involve questions of law, questions of fact, and those that involve both - Judge who hears this request considers the prima facie merits of the appeal itself - Appeal requires demonstration that legal error was made at trial or new evidence has been discovered - Five possible outcomes of verdict appeals: o 1) not to hear the appeal o 2) hear the appeal and dismiss it o 3) substitute conviction on lesser but included offence o 4) direct that offender be acquitted o 5) order a new trial - Most appeals originate from the defence side Crime Victims and the Court Process Ensuring the Safety of Victims - The legal mechanisms for protecting victims from pre-trial intimidation include non-association conditions of pre-trial release, which require defendant to agree not to communicate with any witnesses in the case Victims as Witnesses - Victims may be called upon to testify, and criminal code contains concessions to crime victims who testify in court, however they are offered at discretion of tiral judge Publication Bias - In certain offences, judge can order that identity of complainant or of a witness and any information that could disclose identity shall not be published or broadcasted in any way - Applies during cases of incest, extortion, sexual assault, sexual offence involving children Rape Shield Provisions - Rape shield refers to admissibility of evidence about a sexual assault victim’s sexual history - Provisions make the sexual history of victim inadmissible as evidence in court Courtrooms Closed to the Public - Rarely will a judge exclude all or any members of the public from courtroom - To eliminate or reduce number of observers, judge must be convinced it is in the interest of public morals, maintenance of order, or the proper administration of justice - Applicant must prove that public exclusion is necessary Support Person - Judge may order that a support person of the witness’s choice be permitted to be present and to be close to the witness when testifying Accused Prohibited from Cross-Examination - Accused acting as own counsel not permitted to cross-examine witness under 14 in sexual offences or violent crime cases - Discretion granted to judge, who can permit an unrepresented defendant to conduct cross- examination if proper administration of justice requires it Restorative Justice Approaches Community Holistic Circle Healing Program - Designed as community-based response to high rates of sexual and family abuse that afflicted community - Thirteen phase process - Offender signs a healing contract and apologizes publicly to the victims and community for harm done Restorative/Community Justice in Urban Centres: Collaborative Justice Project - Restorative justice programs can be successfully developed and operated in urban centres - Restorative justice approaches can be applied to serious crimes and may be used
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