Case Management Flashcards
Test for RPC
Higher than a prima facie case (properly instructed jury could convict) less than a probability of conviction (more likely than not)
What type of assessment does RPC require?
Limited assessment of credibility, admission of evidence and likely defences
What should a ₢ look to when assessing credibility for RPC?
- Witnesses veracity
- History of dishonesty
- Motive to lie
- Inadequate opportunity to observe
- Irrefutable evidence of lying
What should a ₢ look to when assessing reliability for RPC?
- Accuracy of witness’ account
2. Ability to accurately observe, recall and recount events
When should RPC be assessed?
In all cases at all stages
What are the factors in assessing Public Interest?
- Gravity of the incident
- Circumstances and views of victim (security of victim)
- Age/health/mental health of involved parties
- Prevalence of type of offence
- Resulting conviction unduly harsh or oppressive
- Whether accused is willing to cooperate
- Likely outcome in event of finding of guilt
- Availability of alternatives to prosecution
s. 28 of the CEA
Certified copies of court documents required for FTC charges
s. 72 of the Child and Family Services Act
Obligation to report to CAS in an case where there is reasonable suspicion that child is in need of protection
Factors to consider re: Diversion
- Background of accused
- Circumstance and nature of offence
- Administration of justice
Diversion - Background of Accused
- Age
- Prior findings of guilt and past diversion
- Outstanding charges
- Degree of accused’s responsibility
- If accused has been previously victimized
- Remorse or restitution
- Physical and mental health concerns
- If accused is from a disadvantaged group
- If accused is Aboriginal
Diversion - Circumstances and Nature of Offence
- Summary vs Indictable
- If violence was involved
- Serious BH foreseeable
- Actual harm to victim
- Sexual integrity of victim
- Weapons used/threatened
- Intention or attempt to cause substantial property damage
- Offence against administration of justice
- Breach of trust
10: Bias, prejudice or hate - Prevalence of type of offence in the community
- Views of victim
Diversion - Administration of justice
- Public confidence
- Length of time to trial
- Likely sentence upon conviction
- Availability of appropriate sanction - culturally relevant
- Frailty in ₢ case
- Consequences unduly harsh
- Just result by referral to diversion
When should ₢ repudiate resolution agreement?
- On rare occasions
- Would bring the administration of justice into disrepute
- Accused can be returned to his original position
- Can constitute abuse of process under s.7 if results in trial unfairness or undermines the integrity of the judicial process
Resolution Discussions
- ₢ required to honour all agreements
2. Should not be regarded as contractual obligation
s. 787
General penalty for summary conviction - 6 months or $5000 - **check this
Super summary offences penalty
Max penalty of 18 months (vs 6 months) **check this
Super Summary Offences
- 151: sex interference
- 152: invitation to commit sex touching
- 153: sex exploitation
- 160(3): bestiality in presence of child
- 163.1: CP
- 172.1: child luring
- 172.2: arranging a sex offence with child
- 218: failure to provide necessaries
- 253: impaired/over 80/refuse
- 264.1: threat to cause death or harm
- 267: assault CBH or WW
- 269: unlawfully cause BH
- 270.01: assault PO WW or CBH
- 270.1: disarm PO
- 271: sex ass
- 279: forcible confinement
- 733.1: FTC w/ prob
- *check this
s. 786(2)
Need consent of accused to proceed by summary conviction when info sworn more than 6 months after offence date
s. 553
Lists the offences that the Provincial Court has absolute jurisdiction over over - Even when the crown proceeds by indictment, a person does not have the right to a PH, jury trial or superior court trial
s. 478(1)
A court in Ontario shall not try an offence committed entirely in another province
s. 478(3)
Accused can consent to plead guilty (if not 469 offence) in another province with AG’s consent
Youth - age
12-17
R v White, 2014 ONCA 64
- offence committed on 18th birthday then treated as adult
s. 16 YCJA
If offence spans over 18th birthday and unknown when offence occurs then treated as youth
s. 13 CC
If under 12 - no charge
Stitchcombe disclosure obligations:
- Privileged material
- Legally protected material
- Clearly irrelevant material
(includes CI information, 3rd party records, information that might jeopardize safety of witness or 3rd party)
When may Crown delay disclosure
When safety of witness at stake or to protect an ongoing investigation
Who controls the form of disclosure?
The ₢
Test for relevancy when assessing disclosure
If reasonable possibility that the info pointing either to the guilt or innocence could be used by the accused in meeting the case for the Crown or advancing a defence
Differences in disclosure for unrepresented accused
Sensitive disclosure must be reviewed at Crown’s office or police station - not turned over to accused
R v O’Connor [1995] 4 SCR 411
2 part test for disclosure for any records outside the possession and control of the Crown
- Likely relevant to an issue at trial or competency of witness to testify
- TJ reviews material and determines whether and to what extent the records should be produced
Factors considered in step 2 of the O’Connor test
- Extent necessary for full answer and defence
- Probative value
- REP - nature and extent
- Whether production based on discriminatory belief
- Potential prejudice to victim’s dignity, privacy or security
R v Bradley, 2015 ONCA 738 (para 75-87)
1) the O’Connor procedure governs production of any records beyond the possession and control of the Crown, whether or not a reasonable expectation of privacy attaches
2) the applicant must establish the existence of further logically probative material that may be useful to the applicant in making full answer and defence
3) the applicant must demonstrate the likely relevance of the records sought to an issue in the proceedings
4) while this burden is significant, it is not onerous; the applicant is not required to demonstrate the precise manner in which the documents will be used at trial
5) relevance to an issue in the proceedings includes substantive issues, the credibility of the witness and the reliability of the other evidence in the case. Relevance also includes an issue related to the competence of a witness to testify. Where the record sought is confidential and contains statements made on issues relevant to credibility, the applicant must show the statements have some potential to provide additional information that either has some impeachment value or is not already available
6) if the records are found to be likely relevant, the question then becomes whether production should be ordered. Production should be ordered only if the records sought have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice or the harm to the privacy rights of any witness or to any claim to privilege. Furthermore, the opposing party’s characterization of the records sought or their contents is not dispositive of the application.
Who can hear a 3rd Party Record Application?
TJ, Case Management Judge, other J on consent.
When must a 3rd Party Record Application be brought?
Before jury has been empaneled
Who is considered a third party?
- Any Crown entities other that prosecuting Crown
- Any files in possession of police in relation to victim or witness
- Anyone who isn’t the prosecuting Crown
