1
Q
Who lays charges and who can withdraw them?
A
- Charges laid by police
- Crown withdraws charges
2
Q
What is information?
A
- A written statement, under oath, that there are reasonable grounds to believe that a person has committed an offence
3
Q
Who can provide disclosure and when?
A
- Crown has a legal duty to disclose all relevant information to the defence
- Initial disclosure should occur before the accused is called upon to elect the mode of trial or enter a plea
4
Q
What are the grounds for pre-trial detention?
A
- Accused is a flight risk
- Accused is a danger to the public
- Detention is necessary to maintain confidence in the administration of justice
5
Q
What is the key presumption in bail hearings?
A
- Presumption of innocence
6
Q
What are the main stages of the prosecution process?
A
- Investigation stage
- Laying of charges
- Pre-trial process
- Trial
- Verdict
- Sentencing
- Appeal
7
Q
Explain the investigation stage.
A
- Search and seizure
- Arrest and detention
- Interrogation
8
Q
Explain laying of charges.
A
- Charge screening
- Withdraw or proceed
- Person moves from being a suspect or arrestee to being the accused (indictable offences) or defendant (summary)
9
Q
Explain the pre-trial process.
A
- First appearance
- Bail hearing
- Disclosure
- Election of mode of trial (for indictable offences)
- Plea bargaining
- Preliminary inquiry (for indictable offences)
10
Q
Explain trial.
A
- Selecting jury (if trial by jury)
- Presentation of Crown’s and defence’s case
- Jury instructions and deliberation (in trial by jury)
11
Q
Explain verdict.
A
- Guilty or not guilty
12
Q
Explain sentencing.
A
- Obtaining pre-sentence reports
- Sentencing hearing
- Hearing victim impact statements
- Determining the sentence
13
Q
Explain appeal.
A
- To a higher court (either party can appeal)
- Leave may be required
14
Q
What are the modes of prosecution?
A
- By judge alone in a provincial court without a preliminary inquiry (summary process)
- By judge alone in a superior court with a preliminary inquiry
- By judge and jury in a superior court with a preliminary inquiry
15
Q
When does an accused have a choice between the different modes of trial?
A
- If offence is an indictable offence
16
Q
How are each modes of trial connected to the classification of offences?
A
- s 469 indictable offences have no choice of mode - are always tried by judge and jury in a superior court
- s 553 indictable offences are always tried in a summary way before a judge alone in a provincial court – no preliminary inquiry and no trial by jury
- If no choice is made, trial by judge and jury
17
Q
At what stage is disclosure provided?
A
- Pre-trial stage
18
Q
Who has the obligation to provide disclosure?
A
- Crown has a legal duty to disclose all relevant information to the defence
19
Q
Why is early disclosure important?
A
- Accused must elect the mode of trial or enter a plea
20
Q
What is bail?
A
- Judicial interim release
21
Q
Which court hears bail cases?
A
- Lowest provincial court
22
Q
Is there a presumption in favour of release or continued detention?
A
- Release
23
Q
What is the ‘ladder’ principle in bail conditions?
A
- On person’s undertaking without conditions
- On person’s undertaking with conditions
- On recognizance with conditions, but without sureties or security deposit
- On recognizance with sureties and conditions, but without security deposit
- On recognizance without sureties, but with conditions and security deposit
- For a person not resident in the province or within 200km of the court
o On recognizance with or without sureties but with security deposit and conditions
24
Q
What are the main principles and guidelines on bail as per the R v Antic decision?
A
- Constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail
- Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms
- Save for exceptions, an unconditional release on an undertaking is the default position when granting release
- Ladder principle articulates the manner in which alternative forms of release are to be imposed – must be strictly adhered to
- If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused.
- Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.
- A recognizance with sureties is one of the most onerous forms of release – should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate
- Not necessary to impose cash bail on accused persons if they or their sureties have reasonable recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release
- When cash bail is ordered, amount must not be set so high that I effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties
- Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be released – not to change accused’s behaviour or to punish
25
Why use juries?
- Better decisions through collective deliberation/exchange of opinions
- Representation of the community
- Increasing public knowledge of the criminal justice system
- Increasing public trust in the criminal justice system
26
What are the roles of juries vs judges in trials by jury?
- Trial by judge alone
o Judge decides all questions of law and fact
o Parties present both legal and factual arguments
o Judge does not provide a sum-up of a case at the end of trial
o No restriction on mentioning possible penalty
- Trial by jury
o Jury decides questions of fact; judge directs jury on questions of law
o Judge provides a sum-up and instructions for the jury at the end of trial
o Parties tend to make factual arguments rather than arguments on fine points of law
o Questions on procedural and evidentiary issues usually decided in absence of jury
o No mention of possible penalty may be made
27
What questions does the jury decide on?
- Hears evidence
| - Resolves factual issues (‘trier of fact’)
28
What questions does the judge decide?
- Decides all legal questions
29
What are the main steps in jury selection?
- Assembling an array
| - Empaneling the jury
30
Is jury selection governed by federal or provincial legislation?
- Federal
- Provincial determines qualifications for jurors and how array is assembled
- Federal decides how jurors for trial are selected from array
31
What are the basic eligibilities to be a juror?
- At least 18
- Canadian citizen
- Resident of the province
32
Who cannot be on a jury?
- Someone with a conflict in serving on a jury
- Individual’s daily job is very important
- Law enforcement and administers of justice
- Judges, lawyers
- Members of legislature and government
- Health professionals and other individuals in ‘essential services’
- Persons with certain types of criminal record
33
What are the exemptions from jury duty?
- Judge can excuse a prospective juror based on:
o Personal interest in the trial
o Relationship with judge, prosecutor, accused, accused’s counsel or witness
o Personal hardship or other reasonable cause
34
What does representative jury mean?
- Focuses on the process used to compile the jury role not its ultimate composition
- Random selection of individuals from jury roll helps ensure representativeness
35
How are jurors selected from a jury array?
- Potential jurors appear in court
- Exemptions considered
- Names of prospective jurors are called out and vetted
- Selection by prosecution and defence
- Challenges for cause or peremptory
- Swearing in
36
What are the 2 main ways that prosecution and defence may challenge a potential juror?
- Peremptory
| - For cause
37
What are the main concerns about the current jury selection rules?
- Juror prejudice
o Specific prejudice in relation to the case
o Racial bias
o Bias against people accuses of certain types of offences
38
What are the judge’s instructions to the jury?
- Reviews the evidence
- Issues
- Theory of prosecution
- Theory of the defence
- Explains applicable rules and criteria
39
What is the order of examination of witnesses?
- Direct examination by the party that called the witness
- Cross-examination by opposing party
- Re-examination by the party that called the witness
40
What are the objectives of cross-examination?
- Elicit favourable testimony
| - Discredit the testimony of the witness
41
What accommodations are provided to vulnerable witnesses?
- Presence of support persons for witnesses
- Giving testimony from behind a screen
- Giving testimony outside the courtroom
- Use of videotaped evidence
- Ordering that accused does not cross-examine a witness
42
What are the key points from “Individual Differences in Judging Deception?
- Meta-analysis of individual differences in detecting deception
- Developed a statistical technique to correct nominal individual differences for differences introduced by random measurement error
- Judges range no more widely able to detect lies than would be expected by chance
- People differ less in ability than in the inclination to regard others’ statements as truthful
- Some people more credible than others whether lying or truth-telling
- Results reveal that the outcome of a deception judgment depends more on the liar’s credibility than any other individual difference
43
What are the objectives of sentencing under section 718?
- Denunciation
- Deterrence
- Separate offenders from society, where necessary
- Rehabilitation
- Provide reparations for harm done to victims or to the community
- Promote a sense of responsibility on offenders and acknowledgment of the harm done to victims or to the community
44
What do the objectives of sentencing mean?
- To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct
- To deter the offender and others from committing offences
- To separate offenders from society
- To assist in rehabilitating offenders
- To provide reparations for harm done to victims or community
- To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or community
45
What are the principles of sentencing under section 718.2?
- Proportionality
- Parity
- Restraint
- Totality
- Sentences should be increased or reduced in accordance with the existence of aggravating and mitigating circumstances
46
What do the principles of sentencing mean?
- Sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender
- Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
- Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh
- Offenders should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances
- All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or community
47
What are aggravating factors?
- Facts or circumstances that increase the severity or culpability of a criminal act
48
What are mitigating factors?
- Extenuating circumstances
- Information or evidence presented to the court regarding the defendant or circumstances of the crime that may result in reduced charges or a lesser sentence
49
What are the objectives and nature of a sentencing hearing?
- Main objective: to determine relevant circumstances of the offence and the offender
- Less formal than a trial; more relaxed evidentiary rules
- Judge may order preparation or a pre-sentence report
- Crown and defence can make submissions, call and cross-examine witnesses
- Accused has the right to speak
- Victims can submit victim impact statements
50
What are pre-sentence reports?
- Report prepared by a probation officer on order of the court to help the judge decide what sentence to give
51
How are pre-sentence reports prepared?
- Probation officer interviews the accused, family, friends, employers, etc.
52
What information do pre-sentence reports contain?
- Offender’s age, maturity, character, behaviour, attitude and willingness to make amends
- History of prior findings of guilt
- History of alternative measures used and offender’s response to those measures
53
What are victim impact statements?
- Made by a victim of crime
- Are to describe physical or emotional harm, property damage or economic loss which the victim of an offence has suffered
- Cannot comment on the character of the accused or recommend a sentence
54
What information does victim impact statements contain?
- Loss suffered because of an offence
55
When and how can victim impact statements be made?
- Who can prepare VIS:
o Survivors of a deceased victim
o Guardians of a child victim
o Spouse, common-law partner, dependent or relative of a victim who cannot make a VIS
- Every victim has a right to present a VIS
- VIS must be considered by a judge
- VIS must be made in writing and can be read aloud in court
- A victim can choose not to submit a VIS
56
What are the different sentencing options?
- Discharge (absolute or conditional)
- Probation
- Conditional sentence
- Incarceration
- Fine
- Restitution
- Special sentencing orders
57
Describe absolute and conditional discharge.
- Effect: finding of guilt, but no conviction
- Eligibility: offences not subject to imprisonment of 14 years, life or a minimum penalty
- Criteria: if in the nest interests of the offender and not contrary to the public interest
- Absolute discharge: no conditions
- Conditional discharge: subject to a probation order
58
Describe probation.
- Community-based sanction
- Can be applied:
o When suspended sentence is imposed and there is no prescribed minimum sentence
o In addition to fine or imprisonment under 2 years
o When intermittent sentence is imposed
o When conditional discharge is imposed
59
How many mandatory conditions of a probation order are there?
- 3
60
What are the mandatory conditions of a probation order?
- Keeping peace and good behaviour
- Appearing before court when required
- Notifying court or probation officer of change of address or employment
61
Describe conditional sentence.
- Form of imprisonment, but served in a community
- Eligibility:
o No minimum sentence for an offence in question and no special restrictions
o Imposed sentence is less than 2 years
o Community safety would not be endangered
62
How many mandatory conditions are there for a conditional sentence?
- 5
63
What are the mandatory conditions for a conditional sentence?
- Keeping peace and good behaviour
- Reporting to court when required
- Notifying supervisor of change of address or employment
- Reporting to supervisor
- Not leaving jurisdiction without written consent of the supervisor
64
Describe incarceration.
- Up to 2 year sentence: provincial responsibility
- 2 year or more: federal responsibility
- If several offences – decision on consecutive vs concurrent sentences
65
Describe fine.
- Can be imposed on its own or in conjunction with another sanction
- Court must consider offender’s ability to pay
- Paid to the state – payment can be made over a period of time
66
Describe restitution.
- Paid to the victim
- Compensates the following types of loss:
o Property damage
o Bodily or psychological harm
o Expenses for moving out of offender’s household
o Expenses incurred as a result of identify fraud and publication of an intimate image without consent
67
Can credit for pre-trial detention be given?
- Prior to 2010:
o Judicial discretion
o Usually 2 days or more of incarceration credited for every day in pre-trial custody
68
What is the ratio for credit for pre-trial detention?
- Max credit 1 to 1
| - In special circumstances 1.5 days for 1 day in pre-trial custody
69
What is the victim surcharge?
- A fine imposed with the objective of funding services for victims of crime
- Amounts:
o 30% of a fine or
o Where no fine was imposed - $100 (for summary conviction) and $200 (for indictable)
70
Is the victim surcharge mandatory or discretionary?
- Mandatory as of 2013
71
Can the victim surcharge be problematic in some circumstances?
- Yes
| - In cases of low income individuals, may not have funds to pay surcharge
72
What are the main characteristics of the youth justice system under the Youth Criminal Justice Act?
- Intended to protect the public by
o Holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person
o Promoting the rehabilitation and reintegration of young persons who have committed offences
o Supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offender behaviour
73
What are the key similarities and differences between the sentencing of adults and young offenders?
- Adults
o Proportionality
o Parity
o Restraint
o Consideration of aggravating/mitigating circumstances
o Totality
- Young Persons
o Proportionality
o Parity
o Restraint
o Consideration of aggravating/mitigating circumstances
o Sentence least restrictive and most likely to rehabilitate
o Sentence no greater than for an adult for the same offence
74
What are the objectives of sentencing under the YCJA?
- Adults
o Denunciation
o Deterrence
o Incapacitation
o Rehabilitation
o Promoting sense of responsibility
o Restitution
- Young Persons
o Holding young persons accountable
o Rehabilitation and reintegration
o May include denunciation and specific deterrence (2012 amendments)
o Contributing to long-term protection of the public
75
What are the principles of sentencing under the YCJA?
- Parity
- Proportionality
- Restraint
- The sentence must be at least restrictive, most likely to rehabilitate and promote sense of responsibility
- Sentence cannot be greater than for an adult that committed the same offence in similar circumstances
- May include deterrence and denunciation
76
What are the sentencing options under the YCJA?
- Discharge
- Probation (max 2 years)
- Incarceration
- Fine (max $1,000)
- Restitution
- Compensation by way of personal service
- Reprimand
- Community service
- Intensive support/supervision program
- Intensive rehabilitative custody
77
Under what circumstances can a custodial sentence be ordered?
- Offender was found guilty of a violent offence OR
- Young person failed to comply with conditions of previous non-custodial sentences OR
- Young person was found guilty of an offence for which an adult could receive more than 2 years and there is a history of convictions OR
- In exceptional cases where youth committed an indictable offence and aggravating circumstances that make non-custodial sentence inconsistent with principles and purposes of youth sentencing
78
Under what circumstances can an adult sentence be imposed?
- Must be at least 14
- Prosecution must consider if it is appropriate to seek adult sentence where youth has been found guilty of first and second degree murder, manslaughter, sexual assault or attempted murder
- Prosecution may seek adult sentence where youth was found guilty of an offence for which an adult is liable to imprisonment for more than 2 years
- Court is satisfied that presumption diminished moral blameworthiness of the youth was rebutted and youth sentence would not be of sufficient length to hold the young person accountable for the offending behaviour
79
What is contained under section 718.2(e) of the Criminal Code?
- A court that imposes a sentence shall also take into consideration of the following principles:
o All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders
80
Why was section 718.2(e) of the Criminal Code enacted?
- Over-representation of Aboriginal peoples in jail since 1970s
- 1980s – Aboriginal over-incarceration starts receiving attention
- 1990s – Royal Commission on Aboriginal Peoples
- 1996 – inclusion of s 718.2(e) in the Criminal Code
81
Why is the R v Gladue decision important?
- Changes the method of analysis to determine a sentence
- Encourages judges to consider restorative justice approaches
- General principles and objectives of sentencing still apply
82
What direction did R v Gladue give to sentencing judges in regards to sentencing First Nations offenders?
- The unique systemic or background factors common to Aboriginal offenders
- Factors that may have played a part in bringing this particular aboriginal offender before the courts
- Types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender in light of his/her particular aboriginal heritage or connection
- What sentencing options exist in the offender’s community
83
What is a Gladue court?
- Court that deals with the same matters as other criminal courts BUT incorporates Aboriginal values and approaches
84
What ways is a Gladue court different from a regular sentencing court?
- Revises criminal court by incorporating Aboriginal values and approaches
- Judge, prosecutors, defence receive training on issues relevant to Aboriginal peoples
- There is an Aboriginal Courtworker and a Gladue caseworker
85
What is a Gladue report?
- Prepared by Gladue caseworkers
- Outlines life circumstances of offender, unique systemic factors that affected Aboriginal people and may have brought this offender to court, community-based options that may or may not be culturally appropriate
- Usually prepared only where the crown is seeking a custodial sentence of at least 90 days
86
What ways is a Gladue report different from a pre-sentence report?
- Outlines the life circumstances of the offender and the unique systemic factors that affected Aboriginal people
87
Explain how the pre-sentence report and Gladue principles informed the judge’s understanding of the circumstances of the offender and his decision on the sentence in R v Armitage.
- Very useful in telling a judge about the particular nature of the offender’s Aboriginal ancestry
- How being an Aboriginal person has affected his or her life circumstance
- How the offender has been influenced by his or her ancestry
- Many ways ancestry can affect an offender’s life
- Can be telling as to why he or she committed the crime
- Much of the information from Armitage’s mother
- Brought to light possible undiagnosed psychological problems
- Residential School’s policy and experience has affected his family
- Family history of alcoholism
- Parents separated and father in and out of custody
- At 10 was diagnosed by his school wit ADHD
- Last attended school in grade 8
- First contact with justice system at 14
- Left home at 15 and received welfare
- Son born at 19, little contact
- Schizophrenia runs in family
- Done jail time for crimes
- Judge must consider all other reasonable options before imposing more
- No further jail time necessary
- Conditional sentence ordered
- Armitage is a dispirited man who is a metaphor for what negative effects colonization has had on many First Nations people and community
- 14 month conditional sentence
- House arrest with exceptions, culturally appropriate counselling, conditions to protect specified individuals and the public, require him to follow his plan of care, to write apologies to his victims, make sure he attends to get into native program
- Required to reappear in front of judge
88
What does R v Hamilton mean for consideration of social context evidence in cases of African-Canadian offenders?
- Race/gender/class issues are an important part of social context
- No clear link between social context evidence and particular circumstances of the offenders
89
Have courts adopted an approach similar to Gladue in relations to the sentencing for offenders from socially disadvantaged groups?
- Section 718.2(e) is remedial for all offenders
90
What is an impact of race and culture assessment?
- A report that provides an explanation of the broader context of a situation to understand various factors that impacted the offender
91
How is a cultural impact assessment used in sentencing?
- Help understand the connection between systemic factors and the circumstances of the offender
- Helps determine objectives of sentencing
92
Is a cultural impact assessment similar to a Gladue report?
- Yes
93
What is included in a cultural impact assessment?
- Provides sociological and historical background of a given group/community
- Explains how accused’s choices and behaviour have been impacted by systemic racism and psychological culture and historic factors
94
What is the definition of mental disorder?
- Disease of the mind
- Any illness, disorder, or abnormality that impairs the human mind and its functioning, excluding self-induced states caused by alcohol, drugs or transitory mental states such as hysteria or concussion
95
What is fitness to stand trial?
- State of accused’s mind at the time of trial
- Unable, on account of mental disorder, to:
o Understand the proceedings
o Understand consequences of proceedings
o Communicate with counsel
96
What is the criteria for recognizing a person not criminally responsible?
- State of the accused’s mind at the time of an alleged offence
- No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission OR of knowing that it was wrong
97
What are the sentencing dispositions for persons recognized as not criminally responsible?
- Absolute discharge (if not significant threat to public safety)
- Conditional discharge
- Detention in a hospital
98
How frequently do reviews take place?
- Once every 12 months
| - Every 3 years for high risk designation
99
What is the purpose of the review?
- Decides whether a person should be sent to a hospital
- When and what conditions he/she may be released into the community
- What kind of supervision and support he/she should receive in the community
100
What was the approach to sentencing prior to 1996?
- Capital offences
- Corporal punishment
- Imprisonment
- Transportation to colonies
101
Was there a codified set of principles for sentencing prior to 1996?
- Criminal Code
102
What were the objectives of sentencing prior to 1996?
- Emphasis on capital punishment and imprisonment
- Retribution
- Deterrence
103
What is the 1996 sentencing reform?
- Outlines objectives and principles of sentencing
| - Introduction of conditional sentencing
104
What are the main characteristics of the Conservative government’s approach to sentencing policy?
- New minimum mandatory sentences for some offences
- Increased sentences for some offences
- Limitation on availability of conditional sentences for some offences
- Increased victim surcharge and made mandatory
- Limiting credit for pre-trial detention
- Limiting parole eligibility for some offences
- Prioritizing public safety in YCJA
105
What are the academic critiques of the Conservative government’s approach to sentencing policy?
- Lack of evidenced-based approach
- Lack of a principled approach
- Focus on populist measures
- Political rather than criminological purposes of changes
- No serious attempt for thoughtful, comprehensive reform
106
What were the changes proposed/implemented by the Liberal government to sentencing policy?
- Modernize and clarify bail provisions to simplify the forms of release
- Incorporate a principle of restraint and require particular attention given to Aboriginal accused and vulnerable populations
- Reverse onus for offences involving violence against an intimate partner
- Abolish peremptory challenges of jurors
- Modify challenging a juror for cause so that a judge makes the determination on it
- Restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life
- Allow the court to exempt an offender from the requirement to pay a victim surcharge if the payment would cause the offender undue hardship
- Increase the maximum term of imprisonment for repeat offences involving intimate partner violence
- Increase maximum penalty for summary conviction offences to 2 years less a day
- For young offenders: encourage use of extrajudicial measures; remove the requirement for the AG to determine whether to seek an adult sentence in certain circumstances
Prosecution & Sentencing
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Decks in class (2)
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