Exam Flashcards
Who lays charges and who can withdraw them?
- Charges laid by police
- Crown withdraws charges
What is information?
- A written statement, under oath, that there are reasonable grounds to believe that a person has committed an offence
Who can provide disclosure and when?
- 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
What are the grounds for pre-trial detention?
- Accused is a flight risk
- Accused is a danger to the public
- Detention is necessary to maintain confidence in the administration of justice
What is the key presumption in bail hearings?
- Presumption of innocence
What are the main stages of the prosecution process?
- Investigation stage
- Laying of charges
- Pre-trial process
- Trial
- Verdict
- Sentencing
- Appeal
Explain the investigation stage.
- Search and seizure
- Arrest and detention
- Interrogation
Explain laying of charges.
- Charge screening
- Withdraw or proceed
- Person moves from being a suspect or arrestee to being the accused (indictable offences) or defendant (summary)
Explain the pre-trial process.
- First appearance
- Bail hearing
- Disclosure
- Election of mode of trial (for indictable offences)
- Plea bargaining
- Preliminary inquiry (for indictable offences)
Explain trial.
- Selecting jury (if trial by jury)
- Presentation of Crown’s and defence’s case
- Jury instructions and deliberation (in trial by jury)
Explain verdict.
- Guilty or not guilty
Explain sentencing.
- Obtaining pre-sentence reports
- Sentencing hearing
- Hearing victim impact statements
- Determining the sentence
Explain appeal.
- To a higher court (either party can appeal)
- Leave may be required
What are the modes of prosecution?
- 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
When does an accused have a choice between the different modes of trial?
- If offence is an indictable offence
How are each modes of trial connected to the classification of offences?
- 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
At what stage is disclosure provided?
- Pre-trial stage
Who has the obligation to provide disclosure?
- Crown has a legal duty to disclose all relevant information to the defence
Why is early disclosure important?
- Accused must elect the mode of trial or enter a plea
What is bail?
- Judicial interim release
Which court hears bail cases?
- Lowest provincial court
Is there a presumption in favour of release or continued detention?
- Release
What is the ‘ladder’ principle in bail conditions?
- 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
What are the main principles and guidelines on bail as per the R v Antic decision?
- 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
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
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
What questions does the jury decide on?
- Hears evidence
- Resolves factual issues (‘trier of fact’)
What questions does the judge decide?
- Decides all legal questions
What are the main steps in jury selection?
- Assembling an array
- Empaneling the jury
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
What are the basic eligibilities to be a juror?
- At least 18
- Canadian citizen
- Resident of the province
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
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
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
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
What are the 2 main ways that prosecution and defence may challenge a potential juror?
- Peremptory
- For cause
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
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
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
What are the objectives of cross-examination?
- Elicit favourable testimony
- Discredit the testimony of the witness
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
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