WDW325.MARCH31.docx

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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
Dena Demos

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RECAP; MODE OF TRIAL Issues to decide: 1) Will there be a preliminary inquiry, is an accused ENTITLED to a pre-lim? Accused’s choice rather they want it or not - Accused charged with a SUMMARY CONVCITION offence is NOT entitled to a pre-lim, SUMMARY CONVICTION = NO PRE LIM...because you trial HAS TO BE IN PROVINCIAL COURT - An accused charged w/ an INDICTABLE OFFENCE is ENTITLED TO A PRE-LIM, UNLESS IT IS AN OFFENCE UNDER S.553, which MUST be tried in the Ontario Court of Justice - If the trial if in the Ontario court of justice, there will be NO pre-lim, what would normally be your pre-lim because your trial, if you decide for whatever reasons you want it in the PROVINCIAL court you are WAIVING your right to pre-lim - For hybrid offences, it will be determined by how CROWN decides to proceed, if they choose to proceed by summary conviction its summary conviction, if not than not....to determine if something is hybrid (look @ punishment section in CC tells you what type of offence it is, if it has BOTH option SC and I, but if it doesn’t than it isn’t) 2) Where will the trial be held? Options: Ontario court of justice (provincial, where all CRIMINAL MATTERS START) or superior court of justice...some trials have to be in the Ontario court of justice, some in the superior court of justice - If it an accused is charged with an indictable OTHER THAN THOSE IN S.469 OR S.553 the accused has 3 choices of how their trial will proceed: 1) Trial by provincial court judge –no pre lim 2) Trial by superior court judge w/t jury, OR 3) Trial by superior court judge with a jury o For options 2 or 3, ACCUSED GETS TO CHOOSE If they want one, and if they have a pre lim its @ the provincial court SPECIAL RULES (1) S.469 offecnce: MUST be tried by a superior court w/ judge and jury UNLESS crown and accuse consent to trial without a jury, ENTITLED to a pre-lim because it is a indictable offence (2) S.553 offences: MUST be tried in the PROVINCIAL COURT (therefore NO pre-lim) 3) Who will hear the trial? Whose the decision maker. OPTIONS: judge on the Ontario court (HAS NO JURY), judge of superior court, judge of super court w/ jury Step 1: is teh offence summary, indictable, or hybrid? - If SUMMY CONVICTION OFFENCE—trial in provicincial court NO pre lim - If indictable offence, PROCEED TO STEP 2 - If hybrid offence, mode of trial depends on how crown election on how to proceed Step 2: indictable offence (or hybrid offences for crown election to proceed to indictment) a) Is it listed in s.553 or s.469? - S.553 PROVINCIAL COURT NO PRE LIM - S.469 Superiour court trial with jury, w/ or w/t pre lim b) Any other indictable –accused...COPY FROM LECTURE DICLOSURE/PRODUCTION R. v. Stinchcombe-Crown has obligation to disclosed to teh defence (before election is made or plea is entered) all information in its possession or control that is a) not clearly irrelevant; b) priviledged, Crown doesn’t have to disclose even if relevant Police have a corollary duty to produce to the crown all information in its file that meets the Stinchombe test *APPLIES TO EVERYTHING IN THE POSSESSIN OF CROWN OR POLICE 2 step procedure for obtaining third party records (O’Connor) STEP 1: defence must establish the records are “likely relevant” STEP 2: judge decides if records are to be produced to the defence Judge weights the “salutary and deleterious effects” of ordering production—determines whether non-production is constitute a reasonable limit on the right to make full answer and defence, weigh between privacy interest with fair trial Need to get a court order and give it to the doctor, requires them to show up and bring the records, comes with seal enevelope, Applies to complainants/witnesses s.278, post-connor, Parliament enacted s.278 concerned that o’connor test was too easy, s.278 makes it more difficult to get 3 party records applications, which apply to SEXUAL OFFENCES only (s.278.2 offences), so basically O’Connor to apply to all the other offences NOT under s.278.2, generally the same threshold, except for 278.4 what may be sufficent under o’connor will be insufficient under s.278, justification is that if its really easy to get access to third party records we would be perpetuating of under reporting of sexual offences McNeil; creates obligation to get records which technically isn’t from crown/police when it releates to police\s credibility, creates obligation on crown if they know it exists to get it A FEW RANDOM TOPICS R. v. Golden (2001, SCC)—STRIP SEARCHES Facts: Take-down in a subway sandwich shop on yonge street, believed he was a drug trafficker, eating a sub, and arrest him in the restrurant - “pat-down”search which reveaed nothing - Visiually inspected his udnerswear and buttocks (clear plastic protruding from underwear) - Officer tried to remove the polastic wrap but the appellant fought back - Forced the appellant to bend over a table at the back of the store - Pants and underwear were was pulled down (buttocks and genitals completely exposed) - Officers tried to seize the package from appelants’s buttocks, but were “unsuccessful” - Golden was forced to ground face first - Officer eventually removed the package (10.1 grams of crack cocaine worth between $500-$2000) Issue: is the search authorized by law? RECALL: search incident to arrest allows the police to search for: police protection OR evidence of offence charged OR to preserve evidence...police was relying on serach incident to arrest power, it was a warrantless search Does it cover strip searches? SCC: “strip searches are inherently humiliating and degrading for detainees regardless of the manner in which they are carried otu and for this reason they cannot be carried out simply as a matter of routine policy” For strip search to be VALID incident to arrest, NEED TO MEET ALL THREE CRITERIA. A) Valid arrest (normal searches only need this criteria) ; B) Reasonable and probable grounds to justify the SEARCH, that evidence will be obtained C) Conducted in least invasive manner possible, need to do it in a way that it as private as possible SCC: generally speaking you can’t do it in public except if its in an emergency RULING: violation of s.8, excluded the evidence, resulted in an acquittal GUILTY PLEAS/PLEA BARGAINING Matter of resources and incentives - System cannot afford to try every case - Accused wants to avoid risk of uncertainty - Accused benefits because it usually results in a reduced sentence, often provides more certainty to accused person, knowing you will be convicted easier to know what your sentences will be other than leaving it to a judge Plea Bargaining, describes 3 different scenarios: - Charge bargaining; often an illegal conduct will be covered by more than a section of the CC, it could lead to multiple charges, in drug offences police will usually charge w/ possession and possession for purpose of trafficking, or trafficking...negotiates which offence the accused will plea to, or negotiate to pleading to a lower offence (assault instead of assault w/ weaponing)
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