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SOSC 2652 (10)

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Social Science
SOSC 2652
Anna Pratt

COURTS (I): OVERVIEW 1. Overall Structure of the Courts – Main areas of court processes: • pre trial • trial • sentencing – Key players: – victim/witness – police – crown prosecutor defence counsel – judge – Main goals of the courts – Do “Justice” – Protect the rights of individuals in conflict with the law – Key Role in the CJS 1. Mete out justice independently 2. Monitoring Function 3. Hear criminal cases and appeals Classification of Offences 1. Summary Conviction Offences 2. Indictable Offences Consequences of how the offence is designated: 1. How the police proceed 2. Options available to crown re: how and where a case may be tried 3. Where the case may be tried Summary Conviction Offences Indictable Offences Hybrid (Dual) Offences • Less serious offence and less • Most serious: homicide, • Crown has the choice to serious maximum penalty, i.e. treason etc proceed summarily or Food fraud, causing a indictment disturbance etc,.. • Tried by provincial court judge • can be tried in different courts • can change at any time before sitting alone depending in seriousness of trial begins offence and preference of the accused • Tried within 6 months of when • more serious penalties • assault, theft, fraud the offence took place including life under$1000, etc • Most numerous type of offence • more serious intrusions against • to allow flexibility & fairness, but take up little time the charged (record, finger to tailer to individual prints) cases/offenders (also creates uncertainty and inconsistency) • increased protection for accused Jurisdiction – legal authority of a court to hear a criminal matter and to apply a penalty upon conviction – no jurisdiction= judgement voided – crimes committed in Canada – Territorial Jurisdiction: courts do not have jurisdiction over offences that occur mainly or wholly in another province Provincial and Territorial Courts (Lower) – Exclusive jurisdiction over: – Provincial offences – summary conviction offences – hybrid offences (prosecuted as a summary conviction) – offences specified by s. 553 (may be indictable or hybrid) Provincial Superior Courts (Higher) – Judges appointed and paid for by Federal gov – Hear more serious indictable offences – may also hear appeals of summary conviction trials held at provincial or territorial courts Provincial Courts of Appeal – hear only appeals of criminal and non-criminal cases – decisions are binding on all courts in that province Supreme Court of Canada – highest court – hears only appeals from provincial courts of appeal – decisions are binding on all courts 2. Key Players: Role of CrownAttorney – Backed by/ represent (power of) the state – Prosecutions in the name of the public – broad discretionary authority – dual role (contradictory?) – minister of justice (impartial) – Player in adversarial process (interest?) – Powers/ duties: – detain in custody – lay multiple charges – prefer indictments – direct police (balance – negotiate pleas – how to proceed on collab. and – disclose or not hybrids independence) disclose evidence – appeal at no personal – prosecute cost Role of the Defence Counsel Crown Defence Ideal ImpartialAdvocate Not impartial Pay On Salary Per Case Authority Discretionary Power No Discretionary Power Defence Counsel as Double Agents? CROWN DEFENCE Occupational Goals Agent of court w/ long term Agent of court w/ long term professional goals professional goals DUAL Role - Minister of Justice - Defend client -Adversarial player - Defend system/self Practice - Work in secrecy - Work in secrecy - Informal “recipe” knowledge - Informal “recipe” knowledge 3. Issues in the Courts (I): Bail/Pre-Trail Detention - Main considerations: 1. Will this person show up for trial 2. does this person represent a risk to public safety - UponArrest, police can either 1. release the person and have them show up for court on their own recognizance; OR 2. Detain the person and bring before a JP within 24 hrs for a bail hearing Pre-Trial Detention and Presumption of Innocence – Charter and Bail ReformAct: – protect right not to be denied bail without just cause – protect the right to answer the charges prior to having liberty deprived – pretrial 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 – for the protection of the public – to maintain confidence in the administration of justice – Principle of proportionality present in these instances – Bail: Kellough's Findigs – Formal factors: type of charge, seriousness, 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 recommendations – moral assessment/tone – positive or negative information – i.e “she is well dressed, polite and employed, with what appears to be a solid family relationship...” – Accused do not see these reports – Kellough found that these were more important than other facts and factors (formal – employment, family status etc) but the Crown tend to be what the police tends to tell them Release Orders – 86% released with conditions – Conditional releases: – surety: a person who will ensure the accused shows up for trial – crown is not required to justify the releases – surveillance: curfew, report to an officer, etc.. (breaches= new offence –> failure to comply) – Conditions as potential police resource (tools for police to manage those who are problematic) – Ideological circle – if that person is brought to court for breaching their conditions, their is a greater likelihood for pretrial detention if there is an offence again Consequences – Dead time/ remand (pre-trial detention) leads to to a less likely chance of the accused to have their charges withdrawn and a higher likelihood of the accused to plea guilty or make a plea bargain – hard time in remand because those held in remand do not hold the same rights as prisoners, because they have not been convicted and do not have outlined rights for convicted persons applicable to them Courts II: Responsibility, Self-defence and the Battered Woman Syndrome Plea Negotiations/Bargaining th – Prior to 19 century, plea bargaining was not allowed in criminal courts – place of the crown previously to prove guilt of accused without any input from accused – suspicion of coercion when it came to guilty pleas at this time – Normalized practice over the 1920s and 30s – necessary to deal with sheer volume of cases – most cases don't even reach the adversarial stage – plea bargain must be voluntary and made between two equal partners in the process What is Plea Bargaining – any agreement by the accused to plead guilty in return for the prosecution agreeing to take or refrain from taking a particular course of action Types of Plea Bargaining 1) Charge Bargaining – take charge with promise from the Crown not to go after family, or friend 2) Sentence Bargaining – Promise from the court to not challenge a sentence or recommend one 3) Fact Bargaining Process/Roles ofAgents – Police –> Overcharging – Crown –> Depend on police (esp. If overworked), efficiency – Defence Counsel –> “double agents”, “regular players”, recipe knowledge and going rates – Consequences: offenders are powerless, harder to choose “not guilty”, may benefit repeat offenders most Prosecutorial 'Software': Self-defence and the Battered Women's Syndrome 1. Responsibility: Actus Reas and Mens Rea – “An act does not make a person guilty unless they had a criminal mind” 2. Excuse-Based Defences: Diminished responsibility (e.g. Self-defence, duress, necessity) – do not attempt to deny that the act was committed, but instead attempt to prove a diminished responsibility R. v. Lavallee (SCC 1990) – ruling on the admissibility of expert testimony on the 'Battered Women's Syndrome' to establish self-defence for women who murder their abusive husbands – lack of fit between law governing self-defence and cases of battered women who kill their spouses – this case did not create a battered women's defence, it held that expert testimony about the syndrome could be relevant to establishing the defence of self-defence and the testimony should be allowed – Self Defence: s. 34(2) CCC i) attack must be imminent ii) reasonable grounds to believe that there is no other way than to use violence to avoid death or grievous bodily harm – it is the belief of the “reasonable person”, not of the accused that it is required – Battered Woman Syndrome: Expert testimony of Dr. Fred Shane 1) Cyclical pattern of abuse and ability to predict when and how sever will be the next attack 2) 'Learned Helplessness': “helpless”, “
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