soc 327 midterm 2

crown counsel

represent the public, not the victim. prosecutional responsibility shared between prov (crim code) and fed (fed statutes) governments. responsible for making sure notice has been given to the defendent. never wins or loses. huge work load, increasing mental health difficulties

territories

here crown counsel is federally appointed crown attorneys, they prosecute all cases

burden of proof

always rests with the crown for all elements related to the charge. for criminal trials this must be beyond a reasonable doubt. if crown fails to prove this then there can be no conviction

duty of disclosure

crowns requirement to provide all info that is “not clearly irrelevant” to defence. ongoing obligation

inculpatory

info favorable 2 defendent

exculpatory

info bad for defendent

not clearly irrelevant

broad, info may be useful

exceptions to duty of disclosure

info that is clearly irrelevant, and priveledged info

priveledged info

info that doesn’t relate 2 evidence (police informants)

first party disclosure

crowns duty of disclosure, triggered upon request once charges have been laid, includes everything theyve collected + all forms of evidence

delayed disclosure

can be justified, not often

informer priveledge

legal right of confidentiality that protects identities of those who provide info 2 the police, subject only to the innocence at stake exception

stake exception

having informers name proves clients innocence

real evidence

phys objects that provide proof of an offence or relevant fact at trial

documentary evidence

text + image based material, in phys/electronic form that is submitted as proof of facts, has to be authenticated

testimonial evidence

witness testimony or oral evidence

direct evidence

based on direct observation (looking out window to check weather and seeing it is currently raining)

circumstantial evidence

not directly observed but requires inferences to be drawn from facts (looking out window and assuming it rained because the ground is wet)

hearsay

any statement made outside of trial being used 2 prove truth of a statement, second hand evidence, used when og speaker can’t come before court

2 parts determining whether crown proceeds with prosecution

1. is there a reasonable prospect of conviction and would it be unreasonable not 2 convict based on evidence

2. is it in the publics best interest to prosecute, will pursuing it attract criticism

unlikely

if reasonable prospect of conviction is this, crown must not continue

public interest

cases only proceed in situations where there is this. considers how srs any phys or psych injuries and financial loss are, if defendent is a reoffender, and if theres alts 2 prosecution

preliminary inquiries

court hearing held before trial in superior court to determine if the crown has sufficient evidence 2 proceed 2 trial. crown bears burden of proof + will do most of the work at this, crown presents all evidence here

charges punishable by at least 14 years imprisonment, trial in superior court, request by accused or crown

preliminary inquiries are only available for

direct indictment

crown override, crowns power 2 send an accused directly 2 trial, irrespective of any right the accused may have 2 a prelim inquiry, broad scope. crown can bring this even after a preliminary hearing has been concluded and accused has been discharged

discharged at prelim inquiry

not the same as being found not guilty as they only really check for evidence here

superior court by judge and jury

how accused will be tried if crown goes by direct indictment

challenging an information or indictment

remedying defect, accused seeks 2 have it thrown out altogether. must be brought before entering a plea, if after plea then a motion 2 quash is needed (requires permission of court)

amending an information or indictment

remedying defect, more common + more likely successful. ensure the charging doc conforms 2 the evidence, doc can be edited

requesting particulars

remedying defect, easiest, not formally ammended. insufficient detail 2 comm precise allegations being made. ex: “accused uttered threats” can request who? where? what?

defense lawyers

rep ppl charged with a crim offence

legal aid certificates

how defense lawyers r paid, provided 2 ppl charged with a crime and can’t afford lawyer if ur facing jail time

primary responsibility of defense lawyers

ensure rights of the accused r protected thru the crim justice process, charter application in cases of charter violation

crowns disclosure

after recieving this, defence counsel reviews case + formulates defence: puts together plan 4 release if client being held, first time offenders usually released on promise 2 appear. defense req disclosure + decide if trial by jury or judge

close of the crowns case

at this, defense may enter either an insufficient evidence or no evidence motion. type of motion may places lims on the defense calling evidence. if judge agrees with either motion, case is dismissed

no evidence motion

apply 2 have evidence dismissed entirely on grounds they have no evidence (crown). can still provide evidence after, can ask for this after more evidence

insufficient evidence motion

evidence not submissible enough beyond reasonable doubt. can’t provide evidence after (wont adv), can still make motions when no prelim inquiry

3rd party records application

want to see some kinda record crown didn’t provide

o’conner applications

3rd party application, accused must subpoena (compell 2 attend court), the record-holder + bring an application for prod, supported by an affidavit (sworn statement) + prove relevant. accused must provide notice of their application 2 the crown + subject of record. judge will determine the likely relevence + whether prod should be ordered

s 278 crim code applications

3rd party application, only 4 sexual violence cases. prohibits certain factors being used 2 determine relevancy such as sexual history, sexual hist with accused, anything regarding their reputation sexually, can’t intro allegations against others (not the accused)

defense disclosure

defense has no reciprocal duty of disclosure. serves as due process limit, no obligation 2 assist crown: supports client protects fairness of trial

3 exceptions 2 defense disclosure

1. 3rd party records applications

2. use of expert evidence

3. alibi evidence (we don’t want long expensive trial)

r v murray

case where defense counsel retrieved evidence not found by police from their clients home (murder videos). as a result phys direct evidence as a lawyer must be turned over, doesn’t have to be from an active crime scene

wrong person

aka “i didn’t do it” common defense. witness or other forms of evidence show defendent could not have committed the offence. not all alibis r equally credible, alibi must be adequate and timely ( let authorities know before trial). fabricated alibis can be used against the defendent (circumstantial evidence of guilt, innocent person has no reason 2 make false alibi)

mental state

common defence with 3 subcategories, all acknowledge accused did the crime but had some brain stuff going on

not criminally responsible on account of mental disorder

NCRMD, mental state defense. assessment ordered by court is used 2 deteremine this verdict, only 1% are found this + usually held elsewhere

automatism

mental state defense. state of impaired consciousness in which a person, tho capable of action, has no voluntary ctrl over that action. 2 sub categories: insanity (NCRMD) and non insanity where cause is phys injury, caused by something like witnessing death or tumor acting on brain. typically found not responsible 4 crime

intoxication

common defense. accused person not criminally liable cuz they didn’t form the required mens rea. volunatary doing this doesnt count, can’t be used as SA defense. if intoxicated to point ur not in ctrl can use automatism defense (self induced) often req med validation, can’t have underlying motive

justifications

common defense, excuses. 3 sub categories

self defense

justification, can only be used for urself, s 34 1 of crim code permeates reasonable action 2 protect themselves or others:

1. reasonable belief of force

2. acted to defend

3. actions were reasonable

provocation

justification, partial defense that can only be used for murder

consent

justification, argument that the complainant voluntarily agreed 2 engage in the activity in question, lack of agreement doesn’t count, can’t do this 2 authority

duress

justification, person committs an offence while under compulsion of a threat made 4 the purpose of compelling them 2 commit it “made me do it” s 17 of crim code requires threat, not reasonable, and proportional harm. not all offences can use defence of duress like murder and SA. has been used in common law as defence for murder anyways

prov judges

appointed by prov govs

superior court judges

appointed by fed govs, gov general as a formality

diversity

_____ of judges is called into question

trier of fact

judge is this meaning they have no role in charging decision

prov court

trials held here presided by a single judge

superior court

trials held here may have judge + jury

judicial pre trial hearings

meeting before trial, usually with the judge, crown and the defense 2 manage + narrow the case. will review the time req 4 the trial + seek opinion from judge abt likely sentence imposed if accused pleads guilty. not req 2 follow judicial suggestions. pre trial judge cannot be prelim inquiry or trial judge

plea inquiry

ensures accused understands consequences of a guilty plea + are pleading of their own volition

s 726

of the criminal code: before determining sentence, court shall ask whether the offender if present has anything to say. this cannot be used 4 harsher punishments but is considered 4 leniency

aggravating factors

factors that make the commission of the offence worse like vulnerability of victim, abuse of position of trust, planning of the offence

mitigating factors

factors that reduce blameworthiness of offence like lack of criminal record, evidence of good nature, evidence of remorse

jury

trier of fact whereas judge acts only as a trier of law

3 stages to jury selection

1. assembling jury roll

2. summoning jury panel

3. selecting trial jury

jury eligibility requirements

canadian citizen, resident of prov/terr, over the age of majority

some jobs or a criminal record

these can make u ineligible to serve as juror

exempt from jury duty

can happen due to language, hardship, or past service

sequestering

jury deliberation, isolation of jurors from the rest of society, including their loved ones, 2 preserve accuseds right 2 fair trial.

jury deliberations

don’t end until a unanimous verdict is reached

hung jury

when unanimous verdict in jury is not reached. mistrial can be declared

exhorting

process by which the trial judge, after it becomes clear that jury is struggling 2 come 2 unanimous decision, once again encourages jury 2 reach a verdict

jury nullification

jury gives “not guilty” despite belief beyond a reasonable doubt that accused is guilty. can also occur with a hung jury

supreme court of canada

established by parliament, final court of appeal 4 crim + civil law

prov/terr court of appeal

administered by provs/terrs, hears appeals from superior prov/terr courts. has some lim crim jurisdiction

federal court of appeal

est by parliament, hears appeals from fed courts, has some lim crim jurisdiction

prov/terr superior courts

administered by provs/terrs, try the most srs cases, court of first appeal for prov/terr courts

prov/terr courts

administered by provs/terrs, have jurisdiction over most crim offences, traffic violations, + prov/terr regulatory offences, hear prelim hearings in srs cases

federal court

est by parliament, hear matters subject 2 fed statute, some lim crim jurisdiction

tsuu tina peacemaking court

indigenous court, adult + youth (except homicide + SA) cases can be referred. eligibility 4 referral req offender taking responsibility + victim agreeing 2 participate. during the peacemaking circle, participants discuss what happened, impact of the offenders actions + what should be done

final ceremony

part of tsuu tina court, held when offender completes the provisions in the agreement. after this report sent 2 tsuu tina court and if crown is satisfied charges are dropped

summary conviction offence

generally less srs + is triable before a magistrate or judge and on conviction carries a max penalty of a fine (less than $5000) or 2 years less a day in prov correctional facility, or both

indictable offence

generally a more srs crim offence that may carry max prison sentences of 14 yrs-life. examples include murder, robbery, aggravated SA

hybrid offences

aka elective offences, can be proceeded as indictable or summary conviction, decision always made by crown

plea bargaining

or agreement, by accused 2 plead guilty in return 4 crown agreeing 2 take or refrain from a particular course of action. discussions between crown + defense. no mention of this in the crim code + no fed or prov/terr guidelines 2 regulate this practice

canadian victims bill of rights

gives victims of srs personal injury or spec indictable offences right to be informed of plea negotiations

purpose of sentencing

s 718 of crim code: fundamental purpose of sentencing is 2 protect society + contribute along with crime prevention initiatives, 2 respect 4 law + the maintenance of a just, peaceful and safe society by imposing just sanctions that have 1 or more of the following:

1. to denounce unlawful conduct + harm done 2 victims or the comm that is caused by unlawful conduct

2. to deter the offender + other persons from committing offences

3. to separate offenders from society when necessary

4. assist in rehabilitating offenders

5. promo sense of responsibility in offenders + acknowledgement of the harm done 2 victims or the comm

pre sentence reports

PSR’s, report prepared by probation officer on order by the court 2 help judge decide what sentence to give. ordered following a verdict of guilty prior 2 the sentencing hearing. not mandatory, judge orders one. typically occurs with more srs offences. large impact on sentencing as judge usually follows suit with recs made by probation officer

s 721 3

of the crim code, unless otherwise spec by court, PSR must contain:

1. offenders age, maturity, char, behaviour, attitude, + willingness to make ammends

2. hist of prev dispositions ( under YCJA or any act of parliament)

3. hist of any alt measures used 2 deal with the offender + the offenders response 2 those measures

PSR’s and risk assessment

based on level of service inventory (LSI)

LSI

level of service inventory, assesses static + dynamic risk factors within 8 categories:

1. crim hist

2. education/employment

3. family circumstances

4. leisure/recreational activities

5. pro crim attitudes

6. substance abuse

7. anti-social patterns

8. assoc with crim/non-crim acquaintances

produces a score 2 assign the individual as low/mid/high risk. classification determines the lvl of treatment intensity

strengths

of LSI:

• provide objectivity

• more defensible due 2 standardization

• common template

• potential for reduced bias

weaknesses

Of LSI:

• subjective + discretion still embedded

• doesn’t ensure accuracy

• potential interpretation issues

• over classification of marg offenders found