Jan 16 last one.docx

Courts (II): Criminal Prosecutions, Responsibility and the ‘Battered Woman Syndrome’ Pre-Trial Detention and Presumption of Innocence -charter and bail reform act -protect right not to be denied bail without just cause -protect the right to answer the charges prior to having liberty deprived -pre-trial release is the general rule -unless reverse onus applies, prosecution must “show cause” to oppose release  s.515 (10) of the CCC: grounds justifying detention:  In order to ensure attendance in court  For the protection of the public  To maintain confidence in the administration of justice Bail: Kellough’s findings (bail does not focus on the crime, but on the offender) PROBLEM! -technical/public factors that influence Crown discretion: -formal factors: e.g. type of charge, severity, record of accused, failure to appear, etc. -social factors: employment, family status, permanent address, community standing, citizenship, etc. Informal processes/factors Confidential police reports: -police recommendation -moral assessment/tone -positive or negative information “she is well dressed, polite, and employed, with what appears to be a solid family relationship… she is no doubt not a dangerous person…” (Kellough) -accused does not see these reports Release orders -86% released with conditions -conditional releases -surety: a person who will ensure the accused shows up for trial -surveillance -breaches: = new offence: “failure to comply” -conditions as potential police resource -ideological circle -crown does not have to justify the surety and defence doesn’t always ask -sometimes conditions are imposed to protect victim of offence so that they won’t go to wrong neighbourhood and chill with the wrong people -the accused may have to carry some papers on them, a curfew, or some other form of control for the police to manage the offender who may be more problematic -if popo talk to driver and they are in area where they are not allowed to be, they have breached their conditions, and can be charged with “failure to comply” Consequences -dead time/remand/prison -time spent in custody that is not spent in sentencing -pre-trial would count as dead time -time spent in remand is hard because do not have same rights as convicted prisoners -no access to services like psychologists, drug rehab, etc. -bill later passed that pre-trial would not be dead time -less likely to have charges withdrawn -pre-trial does not let you access services that might help you put in a better appearance in court; no AA meetings, no appointments, cannot ensure jury that you have stable future, cannot show that you have good position in society -more likely to plead guilty/plea bargain Consequences: I was locked up for 3 – 4 months and then I was found not guilty at trial…better to plead right away; at least then you spend less time in jail even if you are not guilty. I will plead to a lesser charge to get it over with. If I was out on bail I would fight the charge all the way. The living conditions are so bad in here, you don’t want to do extra time when you can plead and get it over with in a shorter time than if you waited for a trial. Issues in courts II: Plea negotiations/bargaining -once a charge is laid, enter in possible plea negotiations -less than 10% of all criminal cases will go to trial -majority of cases that are processed are not subject to the adversarial courtroom scenario -“plea negotiation”: plea must be voluntary and made between two equal partners in the process -prior to 19 century, plea bargaining was not allowed in criminal courts -thought to be ill-enforced and remained the burden of the prosecution to prove guilt without any help from the defendant -courts were suspicious of them because largely done in secret (informal and private) -normalize