Criminal and Quasi-criminal law Flashcards
1
Q
What jurisdiction does criminal law fall under?
A
Federal jurisdiction, including federal legislations such as; the Controlled Drugs and Substances Act, and the Criminal Code (Code)
2
Q
Where are criminal trials held in Ontario (for adults)?
A
2 trial courts: The Ontario Court of Justice, and the Superior Court of Justice (jury)
3
Q
What are the types of charging documents?
A
- The information- charging document used in ONCJ
- The indictment- charging document in the SCOJ
4
Q
How does the Code categorize offences?
A
“straight” summary, “straight” indictable, and hybrid
5
Q
What are straight summary conviction offences?
A
Generally speaking, the least serious offences and attract the lowest penalties = is liable to a fine not more than $5000 or to a term of imprisonment not more than 2 years less a day
6
Q
What are straight indictable offences?
A
most serious offences, most severe penalties (14 years improsonment)
7
Q
What are hybrid offences?
A
Majority of offences, the Crown has the choice to proceed summarily or by way of indictment
8
Q
Are paralegals allowed to appear in hybrid cases?
A
Paralegals may only appear in the ONCJ on certain summary conviction offences and on specified hybrid offences where the Crown has elected to proceed summarily
9
Q
What is a charge screening form?
A
If the Crown determines that there is a reasonable prospect of conviction on the charges laid.. the Crown will complete a charge screening form and prepare disclosure for the defence it includes: the charges, how the Crown elects to proceed, etc.
10
Q
How is the process of an information initiated?
A
Any one with reasonable grounds to believe that an offence has been committed may LAY AN INFORMATION IN WRITING and under oath before a justice ex parte (without notice to the accused). Most likely the informant is a police officer. The information is presented to and sworn before the justice.
11
Q
What is a pre-enquete?
A
where the informant is a private citizen a “pre-enquete” hearing is had in camera, the judge must hear all evidence and allegations and they will decide to proceed or not too (summarily, hybrid etc.)
12
Q
What is a mandamus order?
A
If the Court refuses to issue process, the informant may bring an application in the Superior Court for a mandamus order to compel the judge to issue process (must be done within 6 months)
13
Q
What are substantive requirements of informations? & what are they?
A
The purpose of such provisions is to ensure that the charging document provides the accused with sufficient information to appreciate the charge to be able to prepare a full answer and defence to the allegation. 4 basic rules
- A single transaction
- An offence known to law
- Only one offence per count
- the act or omission must be identified
14
Q
What happens when an amendment is made to an information?
A
It becomes endorsed on the original document and forms part of the charge
15
Q
What happens when an information is quashed?
A
Where an information is so deficient that it is quashed, this may end the prosecution, an application to quash an information must be made before a plea is entered.
16
Q
What is territorial jurisdiction?
A
A general rule is that, an accused is tried in the territorial jurisdiction in which the offence was committed.
17
Q
What are the time limits on trial jurisdiction?
A
In summary conviction offences, the information must be laid within one year after the time the proceedings arose . With that, ALL accused persons have a right to be tried within a reasonable time pursuant to s. 11(b) of the Charter. If the accused establishes the contrary, the usual remedy is a stay of proceedings
18
Q
What is the burden of proof in the Code?
A
For every offence, the Crown has to prove BEYOND A REASONABLE DOUBT. The Crown must prove both the ACTUS REUS and the MENS REA of the offence beyond a reasonable doubt. The act or omission of the offence must be proved as well as the criminal intent
19
Q
What are some common summary conviction offences?
A
Causing a disturbance, trespassing at night, Taking a motor vehicle without consent, Attempts and accessories after the fact, summary conviction
20
Q
What are some common hybrid offences? & defences
A
Careless use and storage of firearm, Carrying concealed weapon, Disobeying order of court, Obstructing or resisting a peace officer, Public mischief, Failure to comply, failure to attend, Criminal harassment, Assault, Theft. under $5000, Forgery, False alarm of fire
Defences: lawful excuse, self-defence, simple mistake, consent
21
Q
What is search and seizure? S. 8 of the Charter
A
Search powers are governed by s. 8 everyone has the right “to be secure against unreasonable search or seizure”. Protects a reasonable expectation of privacy.
22
Q
What is prior judicial authorization?
A
A search without prior judicial authorization (i.e. a warrantless search) is unreasonable. Prior judicial authorization will take the form of a search warrant. The warrant must be issued only where the judge is satisfied on sworn evidence that the prerequisites for issuing the warrant are met.
23
Q
What is an information to obtain?
A
Most search provision requests require these three factors (an offence, the evidence to be seized, and the location of the search) to all be established on reasonable grounds
24
Q
What is a sealing order?
A
in certain circumstances where the dosclosure of information contained in a warrant application would identify a confidential informer, endanger a person engaged in particular intelligence etcc. or compromise an ongoing investigation.. the police will usually apply for a sealing order to prohibit access ..
25
How are search warrants issued ?
In writing. Typically issued by a judge of the Ontario Court of Justice, by the personal attendance of the informant before the justice.
26
What is a Telewarrant?
A warrant may also be issued without the personal attendance of the informant .. the informant may give an information to obtain to a justice by telephone or other means of telecommunication.
27
What are some procedural rules following search warrants?
the warrant must be in possession of the officer at the time of the search, a demand to open must be made before entering, the officer may use no more force than is reasonable necessary to effect any entry or search
28
What else can be searhed?
These search warrant provisions also apply to: wiretaps, blood samples, DNA samples, bodily impressions, tracking devices etc.
29
How can search warrants be quashed?
Search warrants may be reviewed before trial by way of an application for certiorari in a higher court, where they can quash the warrant
30
What is a consent search?
This is a type of warrantless search where the police have the power to search any place or any person on consent. The most important issues will always be whether the consent was voluntary & informed, if the person had authority to give consent..
31
What is a search incident to arrest?
This is where police can search the person and their immediate surroundings incident to arrest. IT MUST HAVE A PURPOSE RELATED TO THE ARREST. the purpose is the protection of the police and public or the discovery and preservation of evidence. Except in rare and exigent circumstances, STRIP SEARCHES MUST BE CONDUCTED IN POLICE STATIONS and by an officer with minimal force
32
what is the importance of R. v. Fearon?
The SCC ruled that upon arrest, police may search a cellphone without a warrant (4 conditions must be met)
33
Is "carding" allowed?
No. an officer cannot attempt to collect identifying information about an ind. if any part of the reason is that the officer perceives the ind. to be within a particular racialized group. The officer must also keep records of the attempted collection even if the ind. refuses.
34
What is the plain-view doctrine?
Common law doctrine that applies to searches w/o a warrant, allowing an officer t seize evidence that is found in plain view. 3 requirements
35
How about exigent circumstances?
The Code contains a power to conduct a search in the absence of a warrant "if the conditions for obtaining a warrant exist but by reason of EXIGENT CIRCUMSTANCES it would be impractical to obtain a warrant (someone is dying in a house called 911)(in order to ascertain the health and safety of a 911 caller)!!!! Can be hard to prove exigent circumstance was valid.
36
What are the rules about roadside testing?
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in his or her body and has operated a "conveyance" within 3 hours, a peace officer may demand the person provide breath and bodily samples (usually done at the police station). HOWEVER, if a peace officer has an "approved screening device" the officer msy demand that a person who is operating a vehicle IMMEDIATELY provide a breath sample. They do not need to have reasinable grounds, the purpose is to determine whether there are reasonable grounds to believe the driver has committed an offence
37
What happens if you refuse testing?
It is a criminal offence to refuse to comply with a valid demand w/o a reasonable excuse.
38
What is a production order?
A production order compels a third party who is not the accused to produce evidence and deliver it to the police. No one is excused from complying with this order. FAILURE TO COMPLY may attract a max. penalty of $250,000 or 6 months imprisonment
39
What are preservation demands and preservation orders?
Related to computer data. A peace officer is empowered to make a demand requiring a person to preserve computer data in a persons possession or control.. on an ex parte application
40
What are proceeds of crime?
an ordinary search warrant cannot seize intangibles such as bank accounts however ... The Code defines "any property, benefit or advantage, within ir outside of Canada, obtained or derived directly or indirectly" as a result of the commission of a designated offence. Authorizes on app. by the Crown SEARCH AND SEIZURE of property that is believed on reason. grounds to be the proceeds of crime.
41
What does voluntariness mean?
For a statement to be admissible in court, The Crown must prove beyond a reasonable doubt that the statement was made voluntarily; the person freely decided to give the statement
42
What is detention?
A person is considered "detained" when his or her liberty interest is suspended by significant physical or psychological restraint.
43
what does it mean to be "psychologically detained"?
The courts will consider whether the person was legally compelled to stop and speak to police or where other conditions exist where a reasonable person would conclude by reason of state conduct that he or she has no choice but to comply. (nature of police, duration, level of sophistication of ind.). There is also detention based on racial profiling.
44
When can the police arrest a person w/0 a warrant?
1. if they see a person actually committing a criminal offence
2. a person who has committed an indictable offence or is about to commit an indictable offence
3. Or any person who the officer reasonably believes is the subject of a warrant of arrest
BUT THE OFFICER SHALL NOT arrest someone committing a hybrid offence or summary
45
What is the proper conduct when arresting someone?
It is a duty of the officer to have the warrant on them or where feasible produce it upon request. Also has a duty provide the reason for arrest. They also have to be informed of their right to counsel WITHOUT DELAY. (this does not include a paralegal). The police must facilitate this right by providing a telephone and it must be in private. The police have no right to question the detainee until the requisite degree of privacy can be provided. The accused has to also be DILIGENT when exercising their right.
46
What is the right to silence?
a person who has been detained or arrested has the right to remain silent and should be so advised. On the other hand, there is no obligation on the police to cease questioning.
47
what is police "trickery"?
Anything an accused says to a fellow inmate may later be adduced in evidence by the Crown.
48
What does the "double-blind" approach" come from in identification line-up's?
generally required. the conducting officer does not know what photos are in the group and what order they come, the witness is not told anything. Somebody ind. of the investigation prepares 12 photos of ppl who look similar and consistent with the description, placed in random order. RECORDED
49
What are the rules about fingerprints?
The police have the power to obtain fingerprints from anyone who is lawfully in custody. AND ARE AUTHORIZED TO USE FORCE AS IS NECESSARY to obtain ingerprints.
50
How about sobriety tests?
An officer may demand the performance of sobriety tests by anyone whom the officer reasonably suspects has alcohol or drugs in the person's body and has operated a conveyance with 3 hours. THESE INITIAL SCREENING TESTS ARE INADMISSIBLE AT TRIAL. because they are to be distinguished from further testing that can take place
51
What about polygraph tests?
NO ONE CAN BE COMPELLED TO TAKE ONE. It is not productive for a person who is a suspect to take the test. More often the polygraph is a device to obtain a confession, by confronting the accused with a failed test the police may be able to obtain an admission from the accused.
52
What happens after being arrested?
An individual may be released by a police officer or held for a BAIL HEARING b4 a judge. Police have wide discretion to release an accused for most offences w/0 need for an appearancin court for bail hearing.
53
What is an appearance notice?
Where the police charge and arrest an accused, attendance can be compelled by an appearance notice, which is later confirmed by a justice, by a summons or an undertaking with conditions.
An appearance notice/summons will generally only be used in least serious offences where police DO NOT have concerns the accused will not show up in court, in indictable cases the appearance notice or summons will often require the accused to attend the police station in advance of first court appearance to do fingerprint and photos.
54
What is an undertaking?
Where the police charge and arrest an ind. w/0 a warrant and decide to release the accused attendance can be compelled with an undertaking with conditions. That is endorsed by a justice,. An undertaking is a promise made by an accused to the police to abide by certain conditions considered necessary for public safety and for monitoring the accused while on release. Inclusive of conditions that are appropriate. Some ex.s include; to report at certain time to police, to remain in a territorial jurisdiction, to abstain from communicating with certain ind.s, promise to pay secified amount to if they fail to comply. Police are required to release an accused unless there are reasonable grounds to believe the accused will fail to attend court or the detention is necessary in public interest.
55
What is judicial interim release (bail)?
s. 1 of the charter states that a person charged with an offence has the right not to be denied bail w/0 just cause & a person has a right to reasonable bail. BAIL SHOULD ONLY BE DENIED IN A NARROW SET OF CIRCUMSTANCES. Burden is on the prosecutor to show why they should be held in custody. Rules of evidence are more relaxed, hearsay is permitted. History of criminal record is allowed. Must provide reasons for decision
56
Are parelegals allowed to participate in bail hearings?
Yes, in summary conviction offences. Most often there is no need because offenders are usually released.
57
What is the "show cause hearing"
is less formal way of saying bail hearing, where the onus is on the prosecutor. Burden can switch to accused in violent assault cases on an intimate partner and where they have been convicted b4.
58
What is a "recognizance"?
A release order with financial obligations or with sureties is referred to as such.
59
What is a surety?
A surety is a person known to the accused (family member) who makes a solemn declaration that he or she will pay a specified sum of moneyto the Crown if the accused fails to abide by any conditions listed in the release order. They must make sure accused attends court, be of good character.
60
What happens if an accused person fails to comply with release conditions?
Bail may be revoked. BAIL REVOCATION. It is initiated with the arrest of the accused. The onus shifts to the accused to show cause why they should not be detained in custody.
61
What is a Judicial referral hearing?
Non-criminal offences hearings are here, or where an accused fails to comply with a summons, appearance notice the proseutor may seek a decision here. The justice can; take no action, cancel an order and substitute a diff, release order etc.
62
What is a detention review hearing?
In order to prevent an accused from being in custody for a LONG TIME and to ensure a prompt trial, there is an automatic review of an accused persons continued detention (where an accused is in per-trial custody)
63
What is notice of hearing?
As soon ad the request is made for bail hearing, the justice must set a date at the earliest convenience, and alert the prosecution and defence.
64
What is a release order?
Following the hearing, if the judge is not satisfied that the detention is necessary, the accused MUST BE RELEASED ON A RELEASE ORDER
65
What is disclosure?
When an accused is charged with an offence, they have a constitutional right to disclossure as part of the right to full answer and defence. AT AN EARLY STAGE
It is the Crown's duty to disclose all relevant evidence to the defence, as part of the accused's right to fair trial/ FULL AND TIMELY DISCLOSURE. Corwn has to err on the side of inclusion.
66
What is a benefit of timely disclosure?
early resolution, resolution of issues in advance of trial so that court time is used more effectively.
67
Where is disclosure usually discussed?
before a judicial pre-trial conference. At the pre-trial conference discuss ny issues that need to be resolved.
68
WHsat about privacy issues and disclosure?
The Crown will screen disclosure to ensure that any personal identifiers or privileged information is redacted.
69
What to do with a privilege issue and disclosure?
The Crown is obligated to advise the defence of the Crowns decision ro withhold or delay disclosure pursuant to a privilege claim.
70
What is first-party disclosure regime?
The Crown has a duty to disclose all relevant, non-privileged information in its possession or control.
71
What are third-party records regime of disclosure?
Materials that are in possession of the police or another government agency (doctors office, rape crisis centre, social agencies, police reports non-related to the case)that were not created in the course of .. or related to the investigation are not in the possession of the Crown
Disclosure of these materials fall under the third party records regime of disclosure. Applications must be brought by defence to have access to these
72
What is two-stage procedure?
A trial judge goes through a two-stage procedure to determine whether to grant a third-party record application.
Stage 1 - likely relevaance
stage 2- balancing
73
What about police misconduct?
Police misconduct records however serious that relate to the subject matter of the offence must be disclosed as part of the initial disclosure package.
74
Does the defence have to reciprocate disclosure to the Crown.
No. However the Code requires advance notice of a party's intention to call an expert witness to the judge and the Crown. Where appropriate the defence should disclose if they wish to have a charge withdrawn, or give notice if a paralegal is seeking relief under the Charter.
75
Who can be a witness in a criminal proceeding?
In order to be a witness a person must be COMPETENT to testify. They also have to be compellable.
76
Can the accused be a witness?
The accused is competent to testify in their own defence BUT is neither COMPETENT OR COMPELLABLE AS A WITNESS FOR THE CROWN. prote ction afforded by the Charter.
77
How about co-accused witnesses?
They are allowed, in joint and seperate trials.
78
How about a spouse as a witness?
The spouse of the accused is a competent witness, but they cannot be forced to give evidence that would reveal communications made during the marriage.
79
What age do you have to be to become a witness?
14 years of age. Are presumed to have mental capacity to testify.
80
What about expert witnesses?
Testimony must be provided by someone who has acquired special skill through study or expertise. 4 step test for admissibility of an expert witness
81
What is a common method to get a witness to court?
A SUBPOENA is an order of the court (on a judge's motion) compelling a person to attend at a specific time and place to give evidence ... given to someone that is likely to give MATERIAL EVIDENCE. Service shall be made by a peace officer PERSONALLY.
82
What is a material witness warrant?
Where a subpoena is ineffective, resort may be made for a "material witness warrant", which authorizes the ARREST of a person who has material evidence to give. IN 3 CIRCUMSTANCES
The witness is usually detained until the witness has given evidence.. or released on a recognizance
83
What about if a witness is in custody?
The witness may be brought to court by a "Judge's order" ,
84
What does it mean to read in evidence?
Where a witness dies or becomes ill or insane, that witness's evidence from a previous trial may be admitted if it was taken. in the presence of the accused.
85
How about testimony outside of the courtroom?
A witness under 18 on application to the judge, can be allowed to testify outside the courtroom or behind a screen to allow them not to see the accused. So long as it would not interfere with proper administration of justice.
86
What about the non-disclosure of a witness's identity?
In any proceedings agaons the accused (sexual offences mostly or minors) on application of the Crown or a witness make an order that any info that could identify the witness not be disclosed. It is a criminal offence to not comply with a non-publication order.
87
What are pre-trial applications?
AKA motions, are an important role in the trial process. This is where legal representatives are attempting to set the parameters of the trial like: when and if the trial will proceed, nature of evidence to be heard. Motions are under the jurisdiction of Criminal Rules of the Ontario Court of Justice.
88
When do motions have to be introduced?
If it is a motion to be determined in advance of trial, the paralegal must take the initiative to bring a motion 60 DAYS IN ADVANCE of trial.
89
What are preparatory motions?
Certain types of pre-trial motions are brought to ensure counsel has necessary materials to properly prepare for trial ex. app.s for disclosure, and production of third-party records
90
What is a motion for release of exhibits for testing?
S. 605 of the Code allows Usually requested by defence, may apply for the release of any exhibit for the purpose of examination or testing. To secure independent testing of physical evidence ... to go beyond the testing done by experts
91
What is an ex. of a non-constitutional pre-trial motion?
Challenges to the wording of the charge. This involves attacks on the way the charge was framed in the information.. requests for particulars, applications for severance of counts or accused.
92
What are adjournments?
Adjournments are normal, may be requested for many reasons, when filed it must be accompanied with a SUPPORTING AFFIDAVIT. If the matter has been set down for trial already, an adjournment application must occur 60 days before the date of trial, and the notice of app. must be filed 30 days before the date the app is to be heard. This means a paralegal must act quickly when the need for adjournment arises.
93
What if you need an adjournment on the eve of the trial?
The paralegal should immediately notify the court and opposing party, and seek relief from compliance with the rules of the court. Be prepared to provide info when expected to heal etc.
94
What about motions for the removal of the accused's paralegal?
Can be for many reasons, the application must be made as soon as practicable, to avoid adjournment of the proceedings. If the accused's paralegal wishes to withdraw for non-payment of fees to soon before the trial date the court will refuse the request.. timing is important
95
What is an application for recusal?
A paralegal may bring an app. for recusal where there is reasonable apprehension of bias on the part of the trial judge. RARE typically arise during the course of trial.
96
What are evidentiary Voir Dires?
Where the need for a ruling in regards to the admissibility of evidence can be foreseen before the trial, the paralegal ought to address it in a pre-trial motion. Complex evidentiary applications such as the admission of similar fact evidence, hearsay evidence, exclusion of evidence. MUST BE FILED 30 DAYS B4 THE START OF TRIAL.
97
what are constitutional applications?
The Charter has had a dramatic impact on criminal proceedings. By means of a constitutional application an accused can challenge; a legislative enactment(on the basis it is inconsistent with the Charter), a procedural or evidentiary rule. Have to prove evidentiary foundation to support allegation of constitutional violation. With this you can strike down a law that is unconstitutional (perogative power) (paralegals cannot do this)
98
What kind of remedies do the Charter provide?
For example if the accused alleges a failure by the Crown to disclose relevant evidence, or denial of the right to be tried within a reasonable time - S. 24(1) entitles the accused to seek a remedy that is "appropriate and just in the circumstances". S. 24(2) is the exclusion of evidence. .. the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute
99
What is an application to stay proceedings for unreasonable delay?
S. 11(b) gurantees the right to be tried within a reasonable time 18 MONTHS (30 MONTHS IN SUPERIOR COURT) , if granted can receive a stay of proceedings.
100
What is the exclusion of witnesses motion?
Before the start of trial, it is common practice to seek an order excluding all prospective witnesses from the courtroom... Purpose is to ensure that the testimony of a witness is not tainted by having heard the evidence of others.
101
What are non-publication orders?
This application permits a justice or judge to prohibit the production, publication, broadcasting of "any information that could identify the victim or witness" where the accused has been charged with sexual offences, this is usually granted by the bail hearing earliest court appearance.
102
What types of trials in Ontario?
1. A trial heard before a judge of the ONCJ
2. A trial heard by a judge of the SCJ alone
3. A trial heard by a judge the SCJ with a JURY
(PARALEGALS ONLY ALLOWED IN OPTION !)
103
What is a "Crown pre-trial"/"Pre-trial meeting"?
Between Crown Counsel and the defence paralegal held in advance of scheduling a pre-hearing conference. Talk about outstanding disclosure, admissions, anticipated motions, possible resolution of the charges. Discuss alternative measures (diversion), a guilty plea to a lesser offence, w/drawal of charges. Parties will discuss if two sides can reach a "joint position"
104
What is the pre-hearing conference?
Held in order to promote a fair and expeditious hearing. 3 days in advance of the conference the Crown must give the judge a synopsis of allegations. Must have decided already # of witnesses, applications party will bring to trial, any admissions, resolution etc. After hearing from the parties the Judge will confirm or amend the estimates of time required to hear the proceedings, set timelines for applications. At the conclusion, any agreements or admissions may be signed and attached for information for the trial judge
105
Is the attendance of the accused mandatory at trial?
In summary convictions, IT IS NOT NECESSARY that the accused attend trial. sometimes,
Practically, the accused is almost always present at the trial regardless of Crown election. Many reasons the accused may want to testify, accused's presence is needed to make fast decisions
106
What is an arraignment?
Arraignment is the formal reading of the charge to the accused and an inquiry by the court about how the accused pleads to each count.
107
What happens after being arraigned?
The accused has several options when asked for a plea. It is preferrable for the accused to enter their plea personally.
108
What is a guilty plea?
Is a formal admission of all the elements of the offence charged. A paralegal should discuss implications and possible consequences of a guilty plea. The plea must be informed and voluntary. The accused should be aware of the maximum penalty. THE CLIENT IS FORFEITING THE RIGHT TO TRIAL. If the accused refuses to accept some of the facts read by the Crown, the judge should oermit the accused to withdraw or strike the plea.
109
What is the not guilty plea?
The accused can plead not guilty. This declaration holds the Crown to its onus of proof of beyond a reasonable doubt of its case. The paralegal must not suggest that some other person committed the offence nor call any evidence that the paralegal knows to be false.
110
What is not guilty to the offence charged, but guilty to another offence?
The accused has the option of pleading not guilty to the offence charged but guilty to "any other offence arising out of the same transaction, whether or not it is an included offence". AKA a LESSER OFFENCE. One of less seriousness. Can be only accepted with the Crowns consent
111
What are the 4 special pleas?
In rare cases, the accused may enter one of 4 special pleas.
1. autrefois acquit- THE AUTREFOIS pleas represent the protection against "double jeopordy".
2. autrefois convict
3. pardon- is available to an accused who claims to haave been pardoned of the offence charged through exercise of Royal Prerogative.
4. justification- applies only to an accused charged with the offence of defamatory libel.
112
What happens when the accused refuses to plead?
The accused who refuses to enter a plea will be deemed to have entered a plea of NOT GUILTY.
113
What is an opening address?
Opening statements are often uncommon, the judge is often familiar with the law, After the accused has been arraigned and has pleaded, Crown Counsel may be invited to make an OPENING ADDRESS to the judge outlining the case that it intends to present, a general overview. It is an impartial summaty. The defence has no right to make an opening statement immediately, pretty uncommon in provincial court trials.
114
Who calls evidence first in criminal Court?
The Crown calls evidence first, since they carry the burden. It must be done through the witnesses lead evidence of each element of the offence(s) charged. If they dont make their case out the defence can call for a directed verdict.
115
What is direct evidence?
Direct evidence is proof of a fact and is usually testimony or what the witness actually saw, heard or did.
116
What is circumstantial evidence?
Can also come from witness testimony, relies on INFERENCES to make a conclusion. Ex. fingerprints are circumstantial evidence. It is up to the judge to determine how much weight to give the particular piece of evidence.
117
Who does the examination-in-chief?
The Crown does of each witness, the paralegal is then permitted to cross-examine. NO LEADING QUESTIONS.
118
What happens after cross-examination?
The Crown will have a limited right of re-examination on points that were newly raised by the paralegal, or require clarification. NO LEADING QUESTIONS.
119
Is the trial judge heavily involved with the trial.
No. They have a very limited role to question witnesses.
120
What is an agreed statement of facts? And admissions
The Crown and the paralegal may use an agreed statement of facts to shorten the trial. The accused can concede that certain facts are not at issue and have a trial on the facts that are. The Crown and the paralegal will often agree before the trial on admissions. Usually one side will draft it , and both parties will edit.. I is then read into evidence and presented to the judge.
121
What is an evidentiary record?
The paralegal must ensure throughout the trial process that an adequate evidentiary record is created for the purpose of supporting the submissions of the paralegal and for any subsequent appellate review.
122
How does expert evidence get admitted?
It must pass a 4 part test;
relevance
necessity
absence of any exclusionary rule
a properly qualifed expert
123
What about confessions?
Pursuant to the common-law confession rule, they may be admitted only where the Crown proves that the statement was made VOLUNTARILY. Proof of voluntariness is undertaken in a voir dire. If it is shown to be involuntary s. 24(2) can be invoked.
124
What are the rules about business records and other documents?
VERY STRICT. Generally, documents are hearsay and are inadmissible for the truth of its contents unless they fall under some exception. Business records will be admissible for their truth where it is established that the records "WERE MADE IN THE USUAL AND ORDINARY COURSE OF BUSINESS". USually the party will call a witness who attests to the authenticity..
125
What is hearsay?
An out-of-court statement, whether written oral, that is admitted for its truth of contents is HEARSAY. In criminal court its mostly not permitted. There are many dangers to accepting hearsay because the creator of the statement is not present .. the trial judge cannot see the demeanour, absence of oath or affirmation
Will be admissible if it meets the requirements of NECESSITY and RELIABILITY
There are many exceptions to hearsay like' dying declarations, res gestae statements, statements against penal interest
126
What is a directed verdict?
At the conclusion of the Crowns case, and before the defence decides to call evidence. the defence paralegal maay make an application for a Directed Verdict of acquittal on the basis that the Crown failed to establish a case with the evidence up to that point
127
HOw does the defence present its case.
Can start with an opening (not common) it should be impartial account of evidence that the paralegal expects will be given by the defence witnesses. The defence paralegal should prepare any defence witness, including the accused, for examination-in-chief and cross, so that they know what to expect. Only MENTION CRIMINAL RECORD if you intend to make them testify.
128
What is reply evidence?
Occasionally, the Crown will be permitted to call reply evidence after the defence has closed the case. LIMITED.
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what about closing addresses?
The paralegal should avoid expressions of personal opinion and suggestion not supported by evidence. Must not be inflammatory.
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How is the verdict given?
The judge makes the final decision after hearing all evidence. The judge will provide reasons. FAILURE to provide adequate reasons may be grounds for an appeal.
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what does a mistrial mean?
A judge standing alone, has jurisdiction to declare a mistrial and may do so for ex. if they feel its necessary to disqualify themself from continuing trial. In this case, rulings that were made during the trial for disclosure admissibility of evidence aare binding on the parties in any new trial.
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What are the objectives of sentencing?
To protect society and to contribute to crime prevention initiatives. (a) to denounce unlawful conduct, (b) to deter (c) to seperate offenders from society (d) to provide reparations for harm done to victims (f) to promote a sense of responsibility
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What does proportionality mean?
It is the fundamental principle of sentencing. "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender"
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What are the other priniciples of sentencing?
Parity:
Totality
Restraint
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What are some factors pertaining to the degree of responsibility of the offender?
Criminal record, Motive, Behaviour post-offence, Age, Guilty plea/remorse, Co-operation with the authorities, Mental illness, indigenous status, Systemic racism
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What are some factors pertaining to the "gravity of the offence"
The range, Abuse of trust, domestic offences, planning and deliberation duration, magnitude of profitability, Prevalence, violence, and use of weapons, Vulnerability of the victim, Delay in the proceedings and other Charter breaches (a Charter breach on the accused may result in a lesser sentence)
For all offences there is a range of appropriate sentences .. determined by years of jurisprudence and appellate courts .. available to create consistency in treatment of offenders
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What is pre-trial custody?
When an accused is detained in custody pending trial, time spent in custody pre-sentence is "worth-more". Most offenders can be released from custody after they have served more than TWO_THIRDS of the sentence.
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How does pre-trial bail conditions affect sentencing?
A sentencing judge should consider the amount of time the offender was subject to very restrictive bail conditions. The credit to be given if any is at the discretion of the judge.
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Can an organization be sentenced?
No. The maximum fine for a summary conviction is $100,000
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What is the role of a paralegal in sentencing?
Is to advocate for the best possible sentence that is best suited for the client.
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What is a victim impact statement?
The victim of an offence has the right to present a statement ofthe harm and losses the victim has suffered , they may ask to read it in court
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What is a pre-sentencing report?
A sentencing court may order a probation officer to prepare a sentencing report. A positive report can be a tool for the defence paralegal to obtain the least restrictive outcome.
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What is another kind of report that can be helpful?
A psychologocal report prepared by a professional
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What are submissions on sentence?
THe defence and the Crown are given an opportunity to make submissions as to what the appropriate sentence is and why. They have a chance to agree on a "joint submission" if the judge is leaning towards a more severe sentence, the judge is obligated to signal that intention, provide an opportunity for more submissions
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What is the offenders statement?
Before the sentence is imposed the offender has an opportunity to say anything . The paralegal should discuss the pros and cons of this.
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Do sentencing judges have to provide reasons?
Yes. For the sentence.
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What is diversion?
Alternative measures is not a sentence but a method of diverting a charge out of criminal court as an alternative to prosecution. Once the program is completed successfully the charges are stayed or withdrawn. Usually available TO FIRST-TIME OFFENDERS CHARGED WITH RELATIVELY MINOR OFFENCES
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What is a peace bond?
An alternative to a guilty plea for allegations of minor threats, assault or mischief. Two types a common law peace bond or a recognizance. In the case of a common law peace bond no money is pledged. The peace bond is a recognizance for one year in length WITH CONDITIONS TO KEEP THE PEACE AND BE OF GOOD BEHAVIOUR< TO HAVE NO CONTACT etc.
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What is a discharge?
Judges are permitted to make a finding of guilt but not register a conviction against the offender. The court avoids imposing a full impact of having a criminal conviction the offenders record for those of "good character" w/0 previous convictions. While not a conviction a discharge is a record under the Criminal REcords Act and stays on there after one year for an absolute discharge &. 3 years for a conditional discharge. A conditional discharge requires probation for up to 3 years.
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What is a suspended sentence?
RARE. permits a judge to suspend the passing of a sentence. The offender is released on a probation order with conditions for up to 3 years, if successfully completed there is no further senstence imposed. At any point the judge can alter the terms of the probation order.
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What is probation?
Is imposed as part of another sentence. May be ordered in conjunction with a term of imprisonment or a fine, Probation offers an offender an opportunity to rehabilitate and reintegrate into the community, THIS PROCESS IS SUPERVISED. Optional conditions such as 240 hours of community service. Or abstaining from drugs or alcohol provide bodily samples to monitor abstinence.
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How are fines imposed?
A fine may be imposed as part of the sentence when the court is satisfied that the offender has the means to pay the fine.
The max. fine for a summary conviction is $5000, but for a corporation $100,000
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What is a victim surcharge?
An offender who is convicted or discharged is required to pay a victim fine surcharge. The amount is 30% of any fine that is imposed, or if there is no fine $100. This surcharge can be waived or reduced on a motion if it causes undue hardship. The judge can also order an increased amount if they believe they have the means to pay it.
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What is a conditional sentence of imprisonment?
A conditional sentence of imprisonment is a sentence of imprisonment where the offender is permitted to serve the sentence in the community, THey must be a danger to the community, Only available where there is no minimum sentence of imprisonment, House arrest or strict curfews are normally included.
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What is imprisonment?
The max. custodial sentence for a summary conviction offence is two years less a day.
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What is an intermittent sentence? Or temporary absences
A judge imposing a sentence for 90 days or less may order that the sentence be served intermittently, The judge specifies a particular schedule of intermittent incarceration, when not in custody subject to a probation order. Made for purpose of employment, or education.
A judge might also recommend a temporary absence program that allows an offender to leave the institution on a regular basis for the purpose ^^ or healthcare, rehabilitative purposes
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What is a concurrent sentence?
Sentences are presumed to be concurrent(at the same time) unless specified to run consecutively. Generally, sentences for offences arising out of one series of events should be ordered to be served concurrently.
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What is a consecutive sentence?
If an offender is being sentenced for unrelated conduct arising out of 2 distinct incidents the sentence should be ordered to be served consecutively. Or of they committed an offence while fleeing from police.
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What is a parole eligibility order?
Generslly an offender is eligible for parole (release) after serving 1/3rd of the sentence, most often the offender will serve close to two-thirds.
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What are ancillary orders?
Made at the time of sentencing including: driving prohibition orders, weapons prohibition orders. DNA orders, Sex offender registry orders, restitution oders
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What is a prohibition order?
Orders prohibiting certain conduct may/must ne made as part of a sentence.
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What are section 161 orders?
Is a prohibition order on sexual offenders after a finding of guilt, These orders are made to keep the offender away from places children under the age of 16 tend to be (park, playground).
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What about the sex offender registry?
When an is a designated sexual offence the court requires the offender to comply with the (SOIRA)
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What is restitution?
Permits the judge to order the offender to make restitution payment of money into court for a victim for any loss or damage to property. Either by the offender directly or from the trust account of the paralegal.
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What are post-sentence applications?
After sentencing, an application may be brought to alter conditions or restrictions imposed by the judge. Paralegals should advise their clients when they can apply for a record suspension. ONE BECOMES ELIGIBLE FOR A RECORD SUSPENSION OF A SUMMARY CONVICTION AFTER 5 YEARS.
THOSE THAT HAVE SERVED 3 OR MORE SENTENCES OF TWO YEARS OR MORE ARE NOT ELIGIBLE
THOSE THAT COMMIT SEXUAL CRIMES AGAINST CHILDREN ARE NOT ELIGIBLE (WITH FEW EXCEPTIONS)
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What is an appeal?
An appeal is a review of the trial proceedings by an appellate court to see that the proceedings were carried out according to law.
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What is a Right of appeal?
Appellate courts are creatures of statute. Rights of appeal and the jurisdiction and powers of court of appeal are restricted to WHAT HAS EXPRESSLY BEEN CONFERRED ONTO THEM.
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Where are summary conviction appeals held?
At the Superior Court of Justice. By a single judge.
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What are the 2 routes of appeal?
In summary conciction matters; the majority of appeals are launched pursuant s. 813 of the Code. The narrower and less frequently used is s. 830.
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What is a s. 813 appeal?
An accused person may appeal a convictio, order , or sentence. This is a broad right of appeal, with no leave requirements or other restrictions.
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What is a s. 830 appeal?
The accused an the Crown can only apply in 3 narrow circumstances: 1. On a question of law alone
2. an excess of jurisdiction
3. a refusal or failure to exercise jurisdiction
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What is a notice of appeal?
In order to launch a summary conv. appeal, a notice of appeal in Form 2 MUST BE FILED with the clerk of the court. An appellate must file the notice of appeal within 30 DAYS AFTER THE DAY ON WHICH THE SENTENCE WAS IMPOSED.HAS TO BE PERSONALLY SERVED ..
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How is a date set for an appeal?
Once the transcript, appeal book, and appellate's factum have been filed, the appeal is perfected and may be placed on a list for hearing.
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What power do s. 813 appeals have?
Is the ability to receive fresh evidence, that came to light after the case was heard. Must meet 4 requirements
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What other abilities do The Superior Court of Justice have in appeals?
They can allow an appeal if there has been a miscarriage of justice, the verdict is unreasonable or unsupported by the evidence.
THE APPELLATE COURT CAN ENTER AN ACQUITTAL OR ORDER A NEW TRIAL.
Similarly, an appellate court can dismiss an appeal
175
What happens when the Crown wants an appeal from an acquittal?
The onus is in the Crown to satisfy the appellate court that BUT FOR the error of law the verdict would not be the same
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what are sentence appeals?
An appellate court will only interfere with a trial judges sentencing discretion where there is an error in principle or AN ERROR OF LAW. The Sup. Court of Justice MAY DISMISS THE APPEAL OR VARY THE SENTENCE
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Whar outcome can arise from s. 830 appeals?
The appeal court may affirm, reverse, or modify the trial decision. Remit the matter back to the trial court
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Where are further appeals held?
Both the Crown and the accused have a further right of appeal to the Court of Appeal for Ontario, WITH LEAVE OF THE COURT OR A JUDGE THEREOF ON A QUESTION OF LAW ALONE
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What is a stay of orders?
There may be circumstances in which it would be oppressive or unfair for the accused to have to comply with the terms of a sentencing order prior to the hearing of an appeal. For ex. where an accused person is sentenced to a driving prohibition, an order staying the driving prohibition pending appeal may be obtained. More case-specific. HAs to not be frivolous. Applicant should explain the hardship a prohibition would cause. A judge can also put restrictions on the stay like a curphew.
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What is bail pending a summary conviction appeal?
Access to bail pending review is a necessary adjunct of an effective right of appeal. MUst file a notice of appeal, provide a copy of the information. For less serious offences it is more than likely granted.
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What types of offences are mostly found in the Controlled Drugs and Substances Act (CDSA)?
Possession, trafficking, importing, and production of drugs
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Where can paralegals appear in relation to the CDSA?
Paralegals may only appear on charges of simple possession on a first offence, obtaining a substance or obtaining an authorization a substance from a practioner.
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What is the Cannabis Act?
Sets out offencesfor possession, distribution, selling , importing, production and cultivation
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What is illicit cannabis?
Cannabis that is or was sold, produced or distributed by a person prohibited from doing so.
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What are some rules about distributing cannabis?
An adult is restricted from distributing more than 30 grams of dried cannabis. Cannot be younger than 18 years of age. Illicit cannabis.
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What is service by offence notice?
For Part 1 - minor offences AKA a "ticket". It must indicate the set fine for the offence.
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What options does the defendant have? With an offence notice?
Plead guilty, guilty with submissions(reasons), dispute the charge by setting a trial
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What is the Provincial Offences Act?
It creates a procedural code for the administration, prosecution, and enforcement of provincial laws and by-laws. They are REGULATORY and in public interest.
Contains 10 ten parts
PART I - MINOR OFFENCES
PART II - PARKING INFRACTIONS
PART III- SERIOUS OFFENCES
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What are Part 1 part II and Part !!!
Are the different procedural streams by which a provincial offence may be prosecuted
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What categories are provincial offences split into?
Full MENS REA, STRICT LIABILITY, AND ABSOLUTE LIABILITY
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What are strict liability offences
majority of provincial offences, the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act... if proven the def. has to prove due diligence/reasonable care
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What are absolute liability offences?
Allows for a finding of guilt of only the prohibited act, without consideration of the defendants mental state.
191
How are Part III prosecuted?
the charging document is a sworn information sworn by a peace officer. A defendant must receive a summons to attend court. IMPRISONMEnT IS A PENALTY. LicENCE SUSPENSION
191
In the POA what are these statutes, regulations, and by-laws referred to as?
The charging act?
191
What are fatal defects?
Where an information is not signed by a justice or informant, where it fails to name a defendant, or does not include an offence known to law.
192
Where are POA matters heard?
At the ON Court of Justice, before a justice of the peace.
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What are demerit points?
Ontario's demerit point system assigns demerit points to drivers based on convictions for particular HTA offences
194
How long do demerit points stay on your record for>
TWO YEARS. COnsequences increase, if have 9 points an interview with an MTO official. TO LICENCE SUSPENSIOn.
