Final

Question 1

What is the role of the Crown? What is the role of the Crown prosecutor?

Answer 1

The Crown is a public officer and provincial civil servant responsible to the Attorney General (Doug Downey in Ontario and David Lametti for Canada). The role of the Crown is to enhance safety and promote public confidence in the administration of justice and the rule of law. There is no winning or losing, only a fair trial. The Crown Attorney is responsible for prosecuting the vast majority of Ontario’s criminal cases. They have a duty to ensure that the criminal justice system operates fairly to all, including the accused. The Crown’s role is to present to the trier of fact evidence that is credible and relevant to the alleged offence.

Question 2

What is the role of the Crown in reference to the police?

Answer 2

The police’s role is to lay the charges (except for when it’s required to get the Attorney General’s consent) and then the Crown decides whether they will prosecute or not. The relationship between the investigative service and the prosecutorial service is one of cooperation and mutual reliance. The police have the sole responsibility and discretion over the investigation that the Crown doesn’t have. Crowns are also available for police officers who need guidance and tips on how to adhere to the law and make sure that evidence is admissible and obtained fairly.

Question 3

What is the relationship of the Crown with the defense?

Answer 3

Our justice system is an adversial one, which means that the Crown has to prove beyond a reasonable doubt that the defense’s client had done the act he is being prosecuted for. There must be mutual respect for one another, to be cordial to one another, The Crown has a duty to disclose all evidence to defense counsel (relevant evidence to the investigation against the accused, that is in the Crown’s possession) whether it favours the Crown or the defense.

Question 4

What is the relationship of the Crown with victims of crime?

Answer 4

Prosecutors have a special duty of candour and respect to all victims. They are not the victim’s lawyers. The Crown must display sensitivity, fairness and compassion when dealing with the victims. The Crown should be sensitive but realistic and candid with the victim. Crowns must make efforts that victims are provided with all the relevant information that allows for full and fair participation in criminal proceedings. They also play an important role in identifying victims who may require assistance to fully access the criminal justice system, or to communicate their evidence to the court.

Question 5

What is a criminal code provision you think needs to be challenged

Answer 5

Section 43 of the Criminal Code which essentially allows parent, teacher, or person standing in the place of a parent is justified in using force to correct a child who is under their care if the force does not exceed what is reasonable under the circumstances. For it to be reasonable to force must be transitory and trifling and must not harm or degrade the child. Banning the physical punishment of children would eliminate the ambiguity or confusion as to what sort of physical discipline is permissible.

Question 6

What is a KGB and how do you go about initiating one?

Answer 6

A KGB application is when a witness recants from a prior statement and adopts a new version of events. It needs to start first by refreshing the memory of the witness with the prior statement as per R v Coffin. When you have prior inconsistent statement, you need to seek to admit the prior statement for the truth of its content, which is the KGB application.

It starts that you need to get all details from the witness’ present memory, then ask how clear the memory is (refresh memory by showing prior statement (N.B. confirm author/time/place), ask if it refreshes memory, ask for recollection again (witness will likely give some excuse why not able to remember), and thirdly, ask about the circumstances of giving prior statement to give signs of reliability (whether witness made the complaint to police, whether statement given to official/police officer, type of narrative of statement (Questions and Answer style), whether witness knew if statement was being recorded, whether the statement was sworn, whether witness was warned of risk of lying, state of sobriety at the time of statement, emotional state at time of statement, voluntariness of giving statement)

At this point the accused may be able to cross examine the witness. This point the applicant will ask the court whether to declare the witness as hostile to be cross-examined, as per section 9(1) of the Canada Evidence Act.

Question 7

What do you do when a witness recants their statement?

Answer 7

A KGB application is when a witness recants from a prior statement and adopts a new version of events. It needs to start first by refreshing the memory of the witness with the prior statement as per R v Coffin. When you have prior inconsistent statement, you need to seek to admit the prior statement for the truth of its content, which is the KGB application.

It starts that you need to get all details from the witness’ present memory, then ask how clear the memory is (refresh memory by showing prior statement (N.B. confirm author/time/place), ask if it refreshes memory, ask for recollection again (witness will likely give some excuse why not able to remember), and thirdly, ask about the circumstances of giving prior statement to give signs of reliability (whether witness made the complaint to police, whether statement given to official/police officer, type of narrative of statement (Questions and Answer style), whether witness knew if statement was being recorded, whether the statement was sworn, whether witness was warned of risk of lying, state of sobriety at the time of statement, emotional state at time of statement, voluntariness of giving statement)

At this point the accused may be able to cross examine the witness. This point the applicant will ask the court whether to declare the witness as hostile to be cross-examined, as per section 9(1) of the Canada Evidence Act.

Question 8

What is the ladder principle with regards to bail?

Answer 8

The ladder principle means that the form of release imposed on an accused must be no more onerous than necessary. It is codified in section 515(1) of the Criminal Code. It only applies to consent releases as well as following a contested bail hearing.
If an accused is not released by the police, the Crown may consent to their release in the following forms : undertaking (section 515(2)(a)); recognizance without surety or cash (section 515(2)(b)); recognizance with surety but without cash (section 515(2)(c)); or recognizance without surety but with cash (section 515(2)(d).

Question 9

What part of criminal law relates to remedies

Answer 9

Section 24(1) and 24(2) of the Charter refers to remedies when there is unconstitutionality.

A stay of proceedings is an appropriate last resort where there is an abuse of process, when there is a section 11(b) request, serious disclosure violation, mistreatment of the accused by law enforcement. There could be damages, habeas corpus, etc.

Question 10

What provisions of the charter are relevant in Criminal law

Answer 10

Section 1 (Oakes test to determine whether the government can justify a law which limits a Charter right), section 7 (life, liberty and security of the person), section 9 (detention and imprisonment), section 10 (arrest and detention), section 11 (proceedings in criminal matters), section 12 (treatment or punishment), section 13 (self-incrimination), section 14 (interpreter), section 15 (equality rights), section 24 (enforcement of guaranteed rights and freedoms, the exclusion of evidence bringing administration of justice into disrepute).

Question 11

Three characteristics a Crown needs, in order of importance

Answer 11

Intelligent, impartial, fair.

Question 12

How does the provincial crown differ from the Federal Crown

Answer 12

The Federal Crown is prosecuting under federal statutes like the Controlled Drugs and Substances Act. In Ontario, the Provincial Crown prosecutes for the Criminal Code. In Nunavut, Yukon and the Northwestern Territories, it’s all under the Federal Crown.

Question 13

Difference between first and second degree murder

Answer 13

First degree murder is a homicide that was planned and deliberate (automatically first-degree are the killing of an on-duty police officer, prison employer, committed during hijacking, sexual assault, hostage, terrorism, intimidation, criminal harassment and on behalf of criminal organization), the sentence is an automatic life sentence with no possibility of parole for 25 years.

Second degree murder is a deliberate killing that occurs without the planning aspect and doesn’t fall under any categories of first-degree murder, the minimum sentence is life in prison with no parole for 10 years, but sentences can be as long as life in prison without parole for 25 years.

Question 14

Actus reus? Mens reus?

Answer 14

For all criminal offences in Canada, there are basic requirements that the Crown must prove that there was action or omission (known as the actus reus) and that there was a simultaneous criminal intent (known as the mens rea) within the particular circumstances. They all depend on the wording of the offense in the Criminal Code. Every conviction requires both, mens rea and actus reus.

Question 15

What is the significance of a s. 11(b) charter? Name three leading cases

Answer 15

Section 11(b) means that any person charged with an offence has the right to be tried within a reasonable time. In sum, you need to first assess the total delay, then subtract defense delay and then if the result is beyond 30 months at the Superior Court of Justice or 18 months at the Ontario Court of Justice, the delay is presumptively unreasonable. The Crown bear the onus of justifying the delay, and the justifications are limited to exceptional circumstances. If the result is within 30 months or 18 months, the delay is presumptively reasonable; then the defence bears the onus of demonstrating the delay in unreasonable. The three leading cases are R v Jordan (2016) which is still the case setting out the delays, R v Manasseri (2016) and R v Picard (2018).

Question 16

What are charter challenges an accused might bring in their criminal law proceeding

Answer 16

An accused can challenge on the fact that police officers didn’t inform the accused of the reasons for his arrest, and they didn’t put forth the right to legal assistance (section 10(a) and (b)); that the delays are exceeding what is reasonable (section 11(b)); that the search and seizure by the police was not reasonable (section 8), that is detention was arbitrary (section 9).

Question 17

Criteria for pre-trial bail/custody

Answer 17

There are three grounds: the primary ground, the secondary ground and the tertiary ground.

As per section 515(10(a), the primary ground, where detention is necessary to ensure his or her attendance in court in order to be dealt with according to the law. As per section 515(10)(b), the secondary ground, where the detention is necessary for the protection or safety of the public (including the victims or witness to the offense) having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody commit a criminal offense or interfere with the administration of justice. As per section 515(10)(c), the tertiary ground, where the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances of the alleged crime and particularities of the accused.

Crown counsels are expected to exercise discretion to consent to bail in appropriate cases and to oppose release where justified, that discretion must be informed, fairly exercised and respectful of prevailing jurisprudential authorities, which are the Antic steps and principles.

Question 18

When is burden of proof reversed for bail hearing

Answer 18

The onus is generally on the Crown to show cause why an accused should be detained in custody unless: the accused is charged with an offense set out in section 515(6) of the Criminal code or the accused is charged with a section 469 offence. For example, the accused is charged with murder, offenses committed for the benefit of a criminal organization, terrorism offenses, certain firearms offenses, trafficking of narcotics; any offense committed while on interim release.

Question 19

What would you do if your witness agreed to testify about something important, but during the actual trial the witness refuses to speak?

Answer 19

My first instinct to ask the judge for a break go verify the Crown Prosecution Manual and verify with my senior counsel but I would consider the testimonial aids starting at section 486 of the Criminal Code, such as having someone with them, testifying by CCTV, using pre-recorded evidence, the used of affidavit evidence, holding proceedings in camera, having a publication ban

Question 20

Someone is charged with sexual assault, how are you going to prosecute this charge? If you choose summary or indictable, what are the sentencing choices the accused can make?

Answer 20

Firstly, I would verify in my Crown Prosecution Manual to make sure I comply with it, I would also ask my fellow senior counsel to make sure, but I would consider that for summary, the maximum sentence is not more than two years less a day (provincial) and for indictable, the maximum sentence is of 14 years. For summary, there can be a conditional sentence, if there is no minimum set.

Question 21

Why do you want to go into Criminal Law?

Answer 21

I wanted to have a career in criminal law since I was a kid. Whether that was through forensics, being a police officer, or being a lawyer. After majoring in sociology and taking numerous history courses it amplified my want to be a lawyer in Criminal Law as you continuously learn about the social inequities within societies such as the overrepresentation of Indigenous peoples that are incarcerated in Canada. I would like to help mitigate the social inequalities within our society and I feel within the law is the sector to do it.

Question 22

Why do you want to work for the Crown?

Answer 22

I want to work for the Crown to not only be an advocate for victims of crime, but to ensure that our legal system operates in a way that serves the public’s interest. I like how the Crown’s duties are to everyone: to society, to the victims, to the witnesses, and the accused. For example, while going through a charge screening, a Crown must always think about the Crown Policy Manual (make sure it complies with it), see if the case emanates reasonable prospect of conviction and keep in mind whether it is in the public interest.

As an Indigenous person, I also think it is imperative for there to be more Indigenous representation within the legal system to mitigate social inequalities such as the overrepresentation of Indigenous peoples within the criminal justice system. When taking other courses in the law, my classes that have to do with criminal law have always been the ones that interest me the most.

I also like that the Crown provides many beneficial learning opportunities for their employees such as Crown School, online seminars, and continual updates of the ground breaking decisions within E-Library on Scope.

Question 23

Why do you want to work for Sudbury Crown?

Answer 23

I would like to come back to work for Sudbury Crown because I really like the work culture in the office, all of the Assistant Crown’s really care about the public interest and the administration of justice, rather than pushing for the harshest penalty. Even in POA court, Adam and Kevin would urge them to let them know if I did not think an accused’s case met the reasonable prospect of conviction, which I had to do during my last month in the office. I also like the Assistant Crown’s drive for justice such as the Sweeney cold case with the issue of DNA and the accused Robert Wright. I also like that I got a really hands on experience during my summer there working through the Aboriginal Law Summer Student Program.

Question 24

R v Sullivan

Answer 24

On appeal from the Court of Appeal for Ontario.

Sullivan attempted suicide using a prescription drugs and while in a psychotic state fatally stabbed his mother. Chan voluntarily took mushrooms and stabbed fatally stabbed his father and non-fatally stabbed his father’s partner. Sullivan convicted of aggravated assault and assault with a weapon. Chan convicted of manslaughter and aggravated assault. Both raised defence of non-mental disorder automatism at trial and were denied due to s. 331 of the CC, which limits availability of that specific defence for violent crimes when the intoxiccation was self-induced. Chan’s trial judge found that s. 331 did infringe s. 7 and 11(d) of the Charter, but the section was saved and thus constitutional due to s. 1 of the Charter. Court ruled that s. 331 of the CC was unconstitutional and s. 1 of the Charter could not save it because it sought to hold an accused accountable despite proving the mens rea and actus reus of a codified offence. In direct conflict with core Charter principles
SCC granted leave for both cases.

Question 25

R v Brown

Answer 25

On Appeal from the Appeal Court of Alberta.

Brown was acquitted at trial of breaking and entering with commission of aggravated assault. He did a B&E while intoxicated and challenged the constitutionality of s. 331 of the Criminal Code, which prohibited from raising the defence of non-mental disorder automatism by reason of self-inducement intoxication where his conduct intereferes with the bodily integrity of another person. Judge held that s. 331 infringed both ss. 7 and 11(d) of the Canadian Charter and struck down that section. Trial judge allowed him to raise the defence with expert evidence and acquitted him on all charges. The court set aside the acquittal and entered a conviction on a less and included offence of aggravated assault. Justices said that because the consequences of voluntarily becoming intoxicated are foreseeable they are not morally innocent.

Question 26

Police writes you a ticket then finds out you are a lawyer then rips up the ticket what do you do?

Answer 26

A conflict of interest may arise in any situation where a Prosecutor’s private interests are actually or may be reasonably perceived to be in conflict with her public service responsibilities. Prosecutors must not undertake any actions that would reasonably appear to be inconsistent with their professional obligations or the exercise of their prosecutorial discretion. Prosecutors must disclose to the ethics executive (Deputy Attorney General), any situation of actual or potential conflict of interest.

Question 27

DV victim recants their statement

Answer 27

In cases where the victim recants or refuses to testify, the Prosecutor must consider the
reasons for the recantation or refusal. The Prosecutor must consider whether the case
can be proven using other evidence and the appropriateness of an adjournment.

Section 810 recognizances (“Peace Bonds”)
There may be exceptional cases where the victim’s safety, their best interests and the
interests of society could be served by employing an alternative to criminal prosecution.
The Prosecutor may resolve the case by way of a section 810 recognizance after
considering all the circumstances, including the victim’s views and public safety and the
factors outlined in the Community Justice Programs for Adults Directive.
A decision to agree to a section 810 recognizance must be approved by the Crown
Attorney or designate. In all cases where a Prosecutor decides a section 810
recognizance is appropriate, firearms and weapons prohibitions must be considered as
conditions of the peace bond. A Prosecutor must not use a common law peace bond in
intimate partner violence cases unless a section 810 recognizance is not available and
even then only with the prior approval of the Crown Attorney or designate. The same
considerations apply to the use of a common law peace bond as a section 810
recognizance.
Victim impact statements
As soon as feasible after a finding of guilt, the Prosecutor must take reasonable steps to
provide the victim with the opportunity to prepare a Victim Impact Statement, and inform
the victim of their right to present it to the court and their other options. The victim may
be informed of these rights early in the process.

In certain circumstances, the interests of justice may be best served by requiring a
motivated, low-risk accused to complete domestic violence education and counselling.
The Prosecutor may consider recommending counselling provided by an early
intervention program only where:
* the accused pleads guilty [or agrees to enter into a s.810 Recognizance]
* the accused has no convictions for violence-related offences
* the accused did not cause serious injuries or harm
* no weapon was used in the offence
* the victim is consulted.
The Prosecutor must not withdraw charges solely based on the victim’s request. The
Prosecutor must consider all the circumstances. These victims may be reluctant to
continue a prosecution and be under considerable pressure to seek the withdrawal of
the charges.