ROLE OF THE CROWN
- Crown is cornerstone of criminal justice system
- Ministers of justice: duty to ensure operates fairly to all (A, V, public)
- Fair, dispassionate, moderate, no partisanship, avoid tunnel vision
- Job not to secure conviction, not about winning/losing (Boucher, 1954 SCC)
- Adversarial process, strong and effective advocates (Gruenke, 1991 SCC, Heureux-Dub.)
- Ambassadors for the crim justice system in the community
- Not lawyer for V; should be sensitive but realistic and candid with V when desires are at odds
- Need to exercise sound judgement, diligent and professional
MEDIA
- Can be referred to AG Comm Branch
- Appropriate to respond to inquiries if directly involved in prosecution
- Not make general policy statements
- Not express personal opinions
- Not initiate contact with media
CHARGE SCREENING - Police Charging Standard
1) objective standard: RPG to believe A committed offence
2) subjective standard: believes that A committed offence
CHARGE SCREENING - Crown Charging Standard
1) RPC: reasonable prospect of conviction:
o Objective test
o Higher than “prima facie”, i.e. Sheppard test
o Does not require “probability of conviction”
2) Public interest:
o Gravity vs triviality
o Circumstances/views of victim
o Age, physical health, infirmity
o National security/international relations
o Degree of culpability
o Excluded: race, gender, etc. personal feelings, political views, effect of those connected
Hybrid Offences – Election
- Summary max = 6 mts jail or $5000 – s. 787(1)
- Proced. necessity for indict: offence over 12 mts ago - unless both parties agree to waive- s.786(2)
- Sentencing considerations: max penalty, parole, weapon prohib, forfeiture, DO, LTO, minimums
- Public interest when very serious offence to proceed by indict.
Direct Accountability Program (Diversion)
- Cannot divert Class III offences (murder, impaired, serious ABH) – may be used as an adjunct to
- Class I offences (minor property offences) are presumptively divertible
o Previous CR of no consequence
o Restitution should be made - Class II offences depend on Crown’s ass. of: circums of offence, offender, need of community/V
o Minor non-partner assaults and property >$5000 may prove divertible - Prerequisites:
o RPC
o Public interest to divert
o A accepts responsibility
o A participates voluntarily
Prelim Standard for Committal
- Used USA Sheppard’s Test
- Arcuri (SCC 2001): whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
- Not to judge credibility, quality of evidence, etc.
- Limited weighing of evidence
- Inferences (reasonable) to be drawn in favour of the Crown
s. 540(7)
At PH
- Crown may tender any evidence that is otherwise not admissible, but that is considered by the justice “credible or trustworthy” at hearing with “reasonable notice”
- On application, court shall require any person to testify in relation to above – s. 540(9)
s. 715.1 – V or wit < 18 at time of offence & s. 715.2 – V with disability
1) video recording made within reasonable time of offence
2) describes acts complained of
3) adopts contents of video
- is admissible if judge is of opinion that evidence would not interfere with proper admin of justice
s. 486.1 – Support Person
- shall make order if witness is< 18 or has disability and not interfere with proper admin of justice
- may be granted on application of prosecutor or a witness if of opinion necessary for full and candid account
- judge to consider age of witness, disability, nature of offence, relationship, relevant circums.
s. 486.2 – Testimony Outside Courtroom (CCTV, Screen, etc.)
- shall make order if witness is< 18 or has disability and not interfere with proper admin of justice
- may be granted on application of prosecutor or a witness if of opinion necessary for full and candid account
- judge to consider age of witness, disability, nature of offence, relationship, relevant circumstances, nature relationship, or protection from retaliation
s. 486.3 – Order Appointing Counsel for Cross
- if <18 or necessary for full and candid account
- judge to consider age of witness, disability, nature of offence, relationship, relevant circums.
- Order shall be made for s. 264 offence (domestic assault, harassment, any type of sex asst.
s. 486 – Exclusion of the public
- interest of public morals, maintenance of order/proper admin of justice (includes protect <18, wits), prevent injury to intl relations/national security
- if sexual offence, and exclusion order not made, judge must explain why
s. 486.4 – Publication Ban for Sexual Offences
- order to prevent publication of info that could ID witness/victim for sexual offences listed
- witness to be informed of this right by judge
- shall make order for 163.1 (making/poss/distr. Child porn)
Material Witness Warrant – s. 705
- judge can issue warrant if:
- subpoena has been served as per Code
- person is likely to give material evidence
- if evading service, can get warrant under s. 698(2)
Expert Evidence – s. 657.3 | Mohan | Criteria
- Four criteria in determining whether expert evidence to be admitted (R. v. Mohan [1994], SCC)
- Relevant
- Necessary to assist trier of fact
- Does not trigger any exclusionary rules
- Given by a properly qualified expert
