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Introduction to Criminal Procedure.doc

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Law 2101
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Introduction to Criminal Procedure Criminal Procedure: the law that sets the rules as to how criminal offences can be investigated, prosecuted and tried. Found in:  Criminal Code (Most of it)  Youth Criminal Justice Act  Controlled Drugs and SubstancesAct  The Charter of Rights (Determines or significantly affect many important issues in criminal procedures; many of these rulings are very controversial). A. Investigation The police uphold this responsibility. Initiated by:  Complaint from public  Police detecting evidence of crime perpetration – once they receive the complaint they will investigate to confirm or refute the suspicion. Police are given broad powers of investigation. (i.e question witness and suspects, detain individuals, conduct surveillance, search places, seizes items, etc).  This power can be invasive and restrict individual liberty The law of criminal procedure attempts to constrain these power so that they can only be exercised with just cause and with due respect for the people affected.  Despite this limit the police are still given significant autonomy in their crime investigation. The police are entitled to lay charges and arrest suspects if they deem that a crime has been carried out. (In Canada, the police lay charges and determine who to arrest.) Criminal Charges laid by private individuals are subject to review by the prosecution and the court.  They do not have the right to press charges (Their wishes are often considered.) B. Prosecution The Crown Attorney’s (Lawyers paid by the government - Quasi-judicial offers with multi-faceted roles) offices uphold this responsibility. 1. Review charges to warrant the prosecution or withdraw them. If warranted: prepare the case for trial and present the allegedly incriminating evidences before the court. Main goal of CA: to achieve justice and not just simply seeking conviction (even though they have to prepare the case vigorously).  Sometimes, they even encourage the trial court to drop the charge.  They must always disclose to the accused all the evidence gathered before the trial so that they have the full opportunity to respond (The accused does not have to disclose in advance – some exceptions). C. Trials Ontario Court of Justice: Most cases are tried before this  Most trials are held before a judge alone, without a jury Super Court of Justice (Ontario): Serious cases that involve Jury trials  Judge still presides in jury trials but only act as a guidance The nature of the alleged offence and the wishes of the accused and prosecutor will determine which court the trial will be held at and if Jury is needed. Types of Criminal Offences: Indictable: generally more serious offences that allows the accused to decide her trial court and see if a Jury is needed.  Greater penalties: up to life imprisonment.  The accused can choose whether to have a preliminary inquiry  A screening mechanism held in Ontario Court where the prosecutor presents enough evidence to show that it COULD obtain a conviction.  The accused presents no defense and no verdict of guilty or not guilty is rendered.  Intended to screen out meritless prosecutions without forcing the accused to go through a public trial and provide the lawyer with the opportunity to challenge the case by questioning the witnesses for the Crown.  If fails: the accused is discharged.  If succeed: the accused is ordered to stand trial and then the trial carries in the Superior Court. Summary: Generally more minor offences and the accused has no option but to be tried by judge alone in the Ontario Court and has to right to a preliminary inquiry.  Very few purely summary conviction offences in the Criminal Code.  Usually punishable by a maximum of six months in jail and up to two years less a day.  Conviction process is easier, cheaper and faster. Hybrid: The prosecutor gets to choose whether to use indictment or summary.  Most offences are hybrid and the prosecution tends to choose summary conviction. Selected Topics: Focus on aspects of criminal procedure that regulate the investigation of offences. A. Arbitrary Detention Police are able to detail people for investigation:  Question the detainee  Question others while ensuring that the detainee does not flee  Search the detainee for evidence of crime. No statutory provisions regulating the police for doing so besides two sections of Charters: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right to be arbitrarily detailed or imprisoned. R.v.Mann (2004) Two officers d
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