Key Players: Lawyers and Judges

Question 1

Who does the Crown Counsel represent?

Answer 1

the public, NOT the victim

Question 2

Who has prosecutorial responsibility?

Answer 2

it is shared between provincial (criminal code offences) and federal (federal statutes) government

Question 3

Who prosecutes cases in the territories

Answer 3

federally appointed Crown attorneys prosecute all cases

Question 4

What does prosecutorial responsibility include?

Answer 4

preparing witnesses, working with police, disclosing evidence

Question 5

Where does the burden of proof rest?

Answer 5

always rests with Crown for all elements related to the charge
- in terms of guilt of a crime
- have to pay attention to all aspects/components of the crime (mens reus and actus reus)
- if the crown fails to prove this, there can be no conviction

Question 6

What is the Crown Counsel’s main responsibility?

Answer 6

to present all facts of the case and to determine guilt

Question 7

Duty of Disclosure

Answer 7

required to provide all information that is “not clearly irrelevant” to defence
- emphasis is to err on the side of disclosure
- includes testimonies, information anything exculpatory and inculpatory
- exception is information that is privileged, legally protected or clearly irrelevant

Question 8

Direct evidence

Answer 8

evidence based on direct observation

Question 9

Circumstantial Evidence

Answer 9

not directly observe but requires evidence to be drawn from the facts
- coming to a conclusion based on surrounding evidence, not necessarily correct
- can be admitted in court but needs to be well fact checked

Question 10

Hearsay evidence

Answer 10

any statements made outside of a trial being used to prove the truth of a statement
- kind of like rumours or gossip
- very high threshold for it to be admissible in court

Question 11

Two part Test on whether Crown will Process with a Prosecution

Answer 11

1. is there a reasonable prospect of conviction
2. is it in the public’s best interest to prosecute

Question 12

Aggravating Factors

Answer 12

factors that made the commission of the offence worse
- e.g., the vulnerability of the victim, abuse of position of trust, planning of offence, age of victim

Question 13

Mitigating Factors

Answer 13

factors that reduce the blameworthiness of the offence
- e.g., lack of a criminal record, evidence of good nature, evidence of remorse

Question 14

Defence Lawyers

Answer 14

represent persons who are charged with a criminal offence

Question 15

Legal Aid Certificates

Answer 15

for people facing time in jail AND cannot afford a lawyer
- problem is not a lot of lawyers want to do legal aid

Question 16

What is an issue with self-representing litigants?

Answer 16

public is not well-versed in the law, and the law is not easy to understand

Question 17

What is the primary responsibility of the Defence Lawyer?

Answer 17

to ensure the rights of the accused are protected throughout the criminal justice process
- defence has the obligation to prove any charter violations

Question 18

Does the defence have any obligation to disclose case prior to trial?

Answer 18

no, unless there is an alibi

Question 19

Mode of Trials

Answer 19

defence also needs to decide what mode of trial is beneficial
- trial by judge vs. trial by jury

Question 20

No-evidence motion

Answer 20

defence does not necessarily have to present their own evidence

Question 21

insufficient evidence mption

Answer 21

defence cannot present their own evidence

Question 22

4 common defence categories

Answer 22

1. You’ve got the wrong person
2. the mental state of the accused at the time the alleged offence occur3ed
3. justifications (or excuses) for having committed a criminal act
4. procedural evidence

Question 23

what are the two possibilities of the “you’ve got the wrong person” defence

Answer 23

1. either did not commit the crime - e.g., police arrested wrong person
2. complainant is giving false allegations

Question 24

Not Criminally Responsible on Account of Mental Disorder (NCRMD)

Answer 24

• controversial because they are arguing that accused is not criminally liable as they did not have mens rea
• an assessment ordered by the court is used to determine this verdict

Question 25

Automatism

Answer 25

a state of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action - can result in a lesser charge

Question 26

Intoxication

Answer 26

the accused person is not criminally liable because they did not form the require mens rea - self-induced intoxication cannot be used to excuse certain interpersonal offences, even without mens rea

Question 27

When and what caused the Intoxication argument to severely change?

Answer 27

1994 - man argued intoxication when he got severely intoxicated and raped women claiming not criminally liable, created public outcry

Question 28

What 3 things do you have to prove to claim self-defence?

Answer 28

1. reasonable belief that there is a threat of force to you or to someone else 2. have to prove that you acted in defence of yourself or someone else 3. act was reasonable in the circumstances

Question 29

what does s. 34(1) of the Criminal Code state?

Answer 29

it permeated reasonable action to protect themselves or others

Question 30

Provocation as a Common Defence

Answer 30

- often associated with self-defence - R v. Carney

Question 31

R v. Carney

Answer 31

argues that he killed his cousin's husband because he was aware of the abuse that the husband was putting his cousin through - was not successful

Question 32

Consent as a Common Defence

Answer 32

- an argument that the complainant voluntary agreed to engage in the activity in question - this has been used in a lot of sexual assault cases and so Supreme court has put a lot of regulations in place

Question 33

Compulsion/Duress as a Common Defence

Answer 33

when a person commits an offence while under compulsion of a threat made for the purpose of compelling them to commit it - not all offences can can use a defence of duress (murder, kidnapping, etc.)

Question 34

4 common Procedural Defences

Answer 34

1. challenging the validity of the applicable law 2. challenging the validity of the prosecution 3. contesting the admissibility of evidence gathered by police 4. seeking a remedy for violation of a Charter right

Question 35

How are Provincial Judges and Superior Court Judges appointed?

Answer 35

provincial judges are appointed by provincial governments; superior court judges are appointed by the federal government

Question 36

What is the role of the judge?

Answer 36

- is the "trier of fact" - interpret the law - are going to be making the decision of guilt or innocence - gatekeeper of evidence

Question 37

Who decides the sentence regardless of judge or jury?

Answer 37

the judge

Question 38

s. 726 of the criminal code allows for what?

Answer 38

- allows the defendant the opportunity to address the court before sentencing occurs (after finding of guilty) - cannot be used for harsher punishment, but is considered for leniency

Question 39

What is the only criminal justice agency that is subjected to outside civilian oversight?

Answer 39

the police in Canada