Midterm Flashcards
What is the key idea of retributive theories?
- just desserts
- imposition of what is deserved
What is the key idea of utilitarian theories?
- promotion of favourable consequences (deterrence, incapacitation, rehabilitation)
What is the key theory of communicative theory?
- communicating societal disapproval of the offender; appeal to moral reasons
What were the historic trends in penal policy of Ancient Greece and Rome?
- capital punishment, mutilation, exile
- public spectacle of execution and torture
- imprisonment not a typical sanction
What were the historic trends in penal policy of the middle ages?
- death, mutilation, loss of property, branding
- imprisonment infrequently used
What were the historic trends in penal policy of the 16th – 18th century?
- public spectacle of punishment
- use of convict labour
- transportation of convicts to colonies
What were the historic trends in penal policy of the late 18th century?
- birth if penitentiary – Pennsylvania (‘separate system’) and Auburn (‘congregate system’) models
What were the historic trends in penal policy of the 20th century?
- move away from capital punishment
- restorative justice
What were the historic trends in penal policy prior to 1892?
- capital offences
- corporal punishment
- transportation to colonies
What were the historic trends in penal policy in the First Criminal Code?
- emphasis on capital punishment and imprisonment
- retribution and deterrence
What were the historic trends in penal policy in 1976?
- capital punishment abolished
What were the historic trends in penal policy in 1996?
- sentencing reform – outline of objectives and principles of sentencing, introduction of conditional sentencing
What were the historic trends in penal policy since 2006 (conservative party in power?
- getting tough on crime
- (emphasis on denunciation and deterrence; limiting judicial discretion on sentencing; new minimum mandatory sentences of imprisonment; restricting early release)
What were the historic trends in penal policy in 2015-2016?
- Supreme Court finds unconstitutional several new provisions on minimum mandatory sentences
What were the historic trends in penal policy since fall 2015?
- Liberal Party in power – major changes proposed + reversal of some of the change made by the Conservatives
What are the federal governments powers over criminal law and penitentiaries?
- legislating on criminal law and procedure (s. 91(27))
- establishment of federal courts (s. 101)
- establishment, maintenance, and management of penitentiaries (s. 91(28))
What are the provincial governments powers over criminal law and penitentiaries?
- regulation of property and civil rights in the province (quasi-criminal law) (e.g., regulation of highways, hunting) (s. 92(13))
- establishment of provincial courts (s. 92(14))
- establishment, maintenance, management of public and reformatory prisons in a province (s. 92(6))
What is a summary conviction offence?
- less serious offences
- dealt with rapidly, without preliminary inquiry, through simpler procedure
What is an indictable offence?
- more serious offences and complex
What is a hybrid offence?
- at a discretion of the prosecutor
- tried as summary or indictable offence
What are the general rules of summary conviction?
- designated by statute or on election
- tried without preliminary inquiry in a lower provincial court without a jury
- maximum sentence usually: up at $5,000 fine or up to 6 months imprisonment or both
What are the general rules of indictable offences?
- designated by statute or on Crown election
- accused has a choice of trial
o summary trial before judge alone (without preliminary inquiry) in provincial court
o trial before judge alone with preliminary inquiry in superior court
o trial before judge and jury with preliminary inquiry in superior court
What are the modes of prosecution?
- by judge alone
- by judge and jury
When would a trial before a judge alone be used?
- summary conviction offences
- Certain indictable offences (keeping a gaming house)
- Hybrid offences (mischief in relation to property)
When would a trial by a judge and jury be used?
- some indictable offences (treason, alarming her Majesty, intimidating legislature, inciting mutiny, piracy, seditious offences and murder)
How is the jurisdiction of a court determined?
- geographical – where crime was commited or where he accused is held
- jurisdiction over a person (except for persons with diplomatic immunity)
- jurisdiction in respect of an offence
What are the different levels of courts?
- Ontario Court of Justice
- Superior Court of Justice
- Provincial Courts of Appeal
- Supreme Court of Canada
Where are lower criminal cases heard?
- lowest provincial courts
- Ontario Court of Justice
Describe the Ontario Court of Justice.
- created by statute
- tries:
o summary conviction offences
o offences under provincial statutes (regulatory)
o some indictable offences (property offences under $5,000, betting) - also:
o initial appearance of most offenders
o receives information
o deals with bail issues
o holds preliminary inquiries
Where are all other criminal cases heard?
- superior courts
- Ontario Superior Court of Justice
Describe the Ontario Superior Court of Justice.
- jurisdiction not restricted by statute – inherent jurisdiction
- can try any offence other than summary conviction offence (usually tries more serious offences than provincial courts) – murder, treason
- holds trials with/without a jury
- hears appeal on summary convictions
- also:
o authorizes wiretapping
o decides on release of individuals charged with most serious offences
o supervises lower courts
Describe the Provincial Courts of Appeal.
- hear appeals on lower courts’ decisions
- leave (permission to appeal) may be required
- can:
o dismiss appeal
o allow appeal and direct a new trial
o allow appeal and substitute decision of the lower court (except entering a guilty verdict where a jury found an accused not guilty) - also: through their decisions provide clarification and guidance to lower courts (eg. An appropriate sentencing range for offences)
Describe the Supreme Court of Canada.
- federally established court
- hears appeals from provincial courts of appeal – through these decisions provides mandatory guidance to all criminal courts (eg. How to interpret a particular offence or a Charter right)
- leave to appeal usually required – some cases may be appealed as of right
What is the interrelationship between the courts?
- courts arranged in a hierarchy
- decisions of higher courts are binding on lower courts
What are the key stages in the prosecution process?
- investigation stage
- laying of charges
- pre-trial process
- trial
- verdict
- sentencing
- appeal
What happens in the investigation stage?
- search and seizure
- arrest and detention
- interrogation
What happens during laying of charges?
- charge screening
- withdraw or proceed
What happens during the pre-trial process?
- first appearance
- bail hearing
- disclosure
- election of mode of trial (for indictable offences)
- plea bargaining
- preliminary inquiry (for indictable offences)
What happens during the trial stage?
- selecting jury (if trial by jury)
- presentation of Crown’s and defence’s case
- jury instructions and deliberation (in trial by jury)
What happened during the verdict?
- guilty or not guilty
What happens during sentencing?
- obtaining pre-sentence reports
- sentencing hearing
- hearing victim impact statements
- determining the sentence
What happens during an appeal?
- to a higher court (either party can appeal)
- leave may be required
At what stage is disclosure provided?
- pre-trial stage
Who has a duty to provide disclosure?
- Crown has a legal duty to disclose all relevant information to defence
- Duty is ongoing
- 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 continued detention?
- presumptive ceiling beyond which delay – from the charge to the actual or anticipated end of trial – is presumed to be unreasonable, unless there are exceptional circumstances beyond Crown’s control
What are the presumptive ceilings for detention?
- 18 months for cases tried in the lowest provincial court
- 30 months for cases in the superior court
What is the “ladder” principle in bail conditions?
- release:
o on person’s undertaking without conditions
o on person’s undertaking with conditions
o on recognizance with conditions, but without sureties or security deposit
o on recognizance with sureties and conditions, but without security deposit
o on recognizance without sureties, but with conditions and security deposit
o for a person not resident in the province or within 200km of the court – on recognizance with or without sureties but with security deposit and conditions
Are prosecutors federal or provincial?
- Attorney General
- Acts through Crown attorneys
What does a federal attorney general responsible for?
- prosecution under federal statutes other than the Criminal Code
What does a provincial attorney general responsible for?
- prosecution under the Criminal Code, Youth Criminal Justice Act
What are the key powers of prosecutors?
- decision whether to accept or reject police choice of charges
- decision whether to proceed with prosecution or withdraw charges or stay proceedings
- decision whether to proceed by indictment or summary conviction (for hybrid offences)
- decision whether to oppose bail
- decision whether to engage in plea bargaining
- power to enter direct indictment
- power to intervene in a private prosecution
- power to override accused’s choice of mode of trial
- decision on what evidence is relevant (for disclosure)
- during trial – how to present evidence, what witnesses to call
- decision what position on the sentence to take
- decision whether to appeal
What are the main principles that guide prosecutors?
- independence of attorney general and Crown prosecutors
- accountability:
o eternally – to Parliament, the public and courts
o internally – Crown attorneys to their superiors and law societies - objectivity
- prosecutor as the guardian of public interest
- purpose of criminal prosecution:
o not to convict but to ensure justice
o importance of fair presentation of all available evidence
What are the main mechanisms to keep prosecutors accountable?
- judicial oversight (during trial – judge’s control over the process; judicial review (very limited) of prosecutor’s exercise of powers)
- civil lawsuits (tort law)
- charter remedies
- disciplinary action by law societies
Who are the key players in a criminal case?
- judge
- jury
- prosecution
- defence
Who bears the burden of proof in criminal cases?
- prosecution must prove beyond a reasonable doubt that defendant is guilty
What is the order of trial?
- opening statement by prosecution
- prosecution’s case (witnesses, experts, other evidence)
- opening statement by the defence
- case for the defence
- closing statements
- charge to the jury (instructions by the judge)
What is the role of a judge and jury?
- in a jury trial – jury decides on guilt/innocence (does not provide reasons)
- in trial by judge alone – judge decides (must provide reasons)
- judge makes decision on sentencing and must provide reasons
What are the main steps in jury selection?
- assembling a group of potential jurors (an array)
- selecting 12 jurors from the array (empaneling the jury)
Is jury selection governed by federal or provincial legislation?
- Provincial jurisdiction determines qualifications for jurors and how jury array is assembled
- Federal jurisdiction determines how 12 jurors for the trial are selected for the array
What is a jury array and how is it assembled?
- the assembling of a group of potential jurors
- preparation of a jury roll (governed by provincial law)
- summoning of a jury array from the jury roll (governed by provincial law)
What are the basic qualifications to be a juror?
- at least 18
- Canadian citizen
- Resident of the province
Who cannot be a juror?
- 2 main rationales:
o conflict in serving on a jury
o individual’s daily job is very important - individuals working in law enforcement and administration of justice
- judges, lawyers
- members of legislature and government
- health professionals and other individuals in ‘essential services’
- persons with certain types of criminal record
Who can be exempted from jury duty?
- judge can excuse a prospective juror based on
o personal interest in the trial
o relationship with a 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 roll, not its ultimate composition – random selection of individuals from jury roll helps ensure representativeness
- no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society
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 of selected jurors
- if jury array is exhausted – talesmen and further selection
What are the two main ways the prosecution and defence may challenge potential jurors?
- peremptory
- for cause
Describe peremptory challenges.
- reasons do not need to be explained
- each party has:
o 20 challenges for treason and first degree murder
o 12 for any offence with more than 5 year sentence
o 4 for any other offence
Describe challenges for cause.
- Grounds:
o juror does not meet qualifications (non-citizen, name does not appear of the panel)
o juror was convicted of an offence for which death or imprisonment over 12 months was imposed
o juror is physically incapable of performing duties
o juror does not speak official languages
o “juror is not indifferent between the Queen and the accused” - 2 steps:
o judge decides whether to permit the challenge – is there a realistic potential or possibility for partiality
o the challenge itself is decided – will the candidate in question be able to act impartially
Who does the onus and burden of proof fall on in criminal cases?
- the crown has the burden of proof
- the standard of proof is “beyond a reasonable doubt”
- the crown must prove:
o criminal act was committed (actus reus)
o by the accused
o the accused possessed the mental element for the offence (mens rea)
What are the types of evidence by sources?
- testimony
- real evidence (physical objects)
- commissioned evidence
What are the types of evidence by purpose?
- direct (proves a fact)
- circumstantial (proves one fact, from which another can be inferred)
- demonstrative
- illustrative (supports or explains other evidence)
How do courts decide if evidence should be excluded?
- exclusion of evidence is not automatic – depends on the case
- factors to be considered:
o the seriousness of the Charter-infringing state conduct
o the impact of the breach on the charter-protected interests of the accused, and
o society’s interest in the adjudication of the case on its merits
What are the selected exclusionary rules?
- privilege
- hearsay
- character evidence
Describe privilege.
- solicitor-client (‘innocence-at-stake’ exception)
- spousal communications
- public interest immunity
- complainant’s privacy – judge determines if records should be produced
Describe hearsay.
- hearsay (out of court statement by someone else who is not available for cross-examination) is not admissible, but some exceptions
- rationale behind exceptions: if witness if unavailable to testify – better to allow second-hand evidence than none at all
- examples of exceptions:
o dying declarations
o prior testimony of unavailable witnesses
o necessity and reliability approach
Describe character evidence.
- General rule: crown cannot introduce evidence of accused’s bad character
- Rationale: not to prejudice the accused
- Exceptions:
o If accused leads evidence of good character
o If character evidence is relevant to an issue in the case (similar fact evidence)
Who can testify?
- competency (able to communicate evidence, understand oath, etc)
- compellability (can they be required to testify?)
- special supports and accommodations (is a witness vulnerable and does he/she need accommodations?)
- what witnesses can testify about: about facts only, they cannot give opinion
Who is considered competent to testify?
- witnesses are presumed competent
- children are competent witnesses (in the past – not)
- spouses are competent witnesses (in the past – not)
- the accused is competent witness (in the past – not)
- if not competent – not allowed to testify
Which witnesses can be compelled to answer?
- all competent witnesses are usually compellable, but there are exceptions:
o accused cannot be compelled to testify
o spouse of the accused may be compelled by the crown to testify (change under the 2015 Victim Bill of Rights Act), but can refuse to disclose communications made to him/her by the other spouse during marriage
What are the two methods to control juries’ overreliance on questionable evidence?
- rules of evidence as safeguards against wrongful convictions
- limiting the jury: through exclusionary rules – jury prevented from considering some evidence
- educating the jury: through judge’s instructions and/or expert witnesses – jury made aware of weaknesses of certain type of evidence and/or technical/controversial issues are better explained
In what ways are the rules of evidence applicable to expert witnesses different from those applicable to other witnesses?
- allowed to give opinion and beliefs as evidence
Who are expert witnesses?
- forensic scientists
- psychologists
- social scientists
What do expert witnesses do?
- help juries/judges understand certain matters/evidence
What is the test for expert evidence?
- relevance
- necessity in assisting the trier of fact
- absence of exclusionary rule
- qualified expert
