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Prosecution & Sentencing > Midterm > Flashcards

Midterm Flashcards

1
Q

What is the key idea of retributive theories?

A
  • just desserts

- imposition of what is deserved

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2
Q

What is the key idea of utilitarian theories?

A
  • promotion of favourable consequences (deterrence, incapacitation, rehabilitation)
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3
Q

What is the key theory of communicative theory?

A
  • communicating societal disapproval of the offender; appeal to moral reasons
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4
Q

What were the historic trends in penal policy of Ancient Greece and Rome?

A
  • capital punishment, mutilation, exile
  • public spectacle of execution and torture
  • imprisonment not a typical sanction
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5
Q

What were the historic trends in penal policy of the middle ages?

A
  • death, mutilation, loss of property, branding

- imprisonment infrequently used

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6
Q

What were the historic trends in penal policy of the 16th – 18th century?

A
  • public spectacle of punishment
  • use of convict labour
  • transportation of convicts to colonies
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7
Q

What were the historic trends in penal policy of the late 18th century?

A
  • birth if penitentiary – Pennsylvania (‘separate system’) and Auburn (‘congregate system’) models
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8
Q

What were the historic trends in penal policy of the 20th century?

A
  • move away from capital punishment

- restorative justice

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9
Q

What were the historic trends in penal policy prior to 1892?

A
  • capital offences
  • corporal punishment
  • transportation to colonies
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10
Q

What were the historic trends in penal policy in the First Criminal Code?

A
  • emphasis on capital punishment and imprisonment

- retribution and deterrence

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11
Q

What were the historic trends in penal policy in 1976?

A
  • capital punishment abolished
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12
Q

What were the historic trends in penal policy in 1996?

A
  • sentencing reform – outline of objectives and principles of sentencing, introduction of conditional sentencing
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13
Q

What were the historic trends in penal policy since 2006 (conservative party in power?

A
  • getting tough on crime
  • (emphasis on denunciation and deterrence; limiting judicial discretion on sentencing; new minimum mandatory sentences of imprisonment; restricting early release)
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14
Q

What were the historic trends in penal policy in 2015-2016?

A
  • Supreme Court finds unconstitutional several new provisions on minimum mandatory sentences
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15
Q

What were the historic trends in penal policy since fall 2015?

A
  • Liberal Party in power – major changes proposed + reversal of some of the change made by the Conservatives
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16
Q

What are the federal governments powers over criminal law and penitentiaries?

A
  • legislating on criminal law and procedure (s. 91(27))
  • establishment of federal courts (s. 101)
  • establishment, maintenance, and management of penitentiaries (s. 91(28))
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17
Q

What are the provincial governments powers over criminal law and penitentiaries?

A
  • 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))
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18
Q

What is a summary conviction offence?

A
  • less serious offences

- dealt with rapidly, without preliminary inquiry, through simpler procedure

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19
Q

What is an indictable offence?

A
  • more serious offences and complex
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20
Q

What is a hybrid offence?

A
  • at a discretion of the prosecutor

- tried as summary or indictable offence

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21
Q

What are the general rules of summary conviction?

A
  • 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
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22
Q

What are the general rules of indictable offences?

A
  • 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
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23
Q

What are the modes of prosecution?

A
  • by judge alone

- by judge and jury

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24
Q

When would a trial before a judge alone be used?

A
  • summary conviction offences
  • Certain indictable offences (keeping a gaming house)
  • Hybrid offences (mischief in relation to property)
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25
Q

When would a trial by a judge and jury be used?

A
  • some indictable offences (treason, alarming her Majesty, intimidating legislature, inciting mutiny, piracy, seditious offences and murder)
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26
Q

How is the jurisdiction of a court determined?

A
  • 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
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27
Q

What are the different levels of courts?

A
  • Ontario Court of Justice
  • Superior Court of Justice
  • Provincial Courts of Appeal
  • Supreme Court of Canada
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28
Q

Where are lower criminal cases heard?

A
  • lowest provincial courts

- Ontario Court of Justice

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29
Q

Describe the Ontario Court of Justice.

A
  • 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
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30
Q

Where are all other criminal cases heard?

A
  • superior courts

- Ontario Superior Court of Justice

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31
Q

Describe the Ontario Superior Court of Justice.

A
  • 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
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32
Q

Describe the Provincial Courts of Appeal.

A
  • 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)
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33
Q

Describe the Supreme Court of Canada.

A
  • 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
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34
Q

What is the interrelationship between the courts?

A
  • courts arranged in a hierarchy

- decisions of higher courts are binding on lower courts

35
Q

What are the key stages in the prosecution process?

A
  • investigation stage
  • laying of charges
  • pre-trial process
  • trial
  • verdict
  • sentencing
  • appeal
36
Q

What happens in the investigation stage?

A
  • search and seizure
  • arrest and detention
  • interrogation
37
Q

What happens during laying of charges?

A
  • charge screening

- withdraw or proceed

38
Q

What happens during the pre-trial process?

A
  • first appearance
  • bail hearing
  • disclosure
  • election of mode of trial (for indictable offences)
  • plea bargaining
  • preliminary inquiry (for indictable offences)
39
Q

What happens during the trial stage?

A
  • selecting jury (if trial by jury)
  • presentation of Crown’s and defence’s case
  • jury instructions and deliberation (in trial by jury)
40
Q

What happened during the verdict?

A
  • guilty or not guilty
41
Q

What happens during sentencing?

A
  • obtaining pre-sentence reports
  • sentencing hearing
  • hearing victim impact statements
  • determining the sentence
42
Q

What happens during an appeal?

A
  • to a higher court (either party can appeal)

- leave may be required

43
Q

At what stage is disclosure provided?

A
  • pre-trial stage
44
Q

Who has a duty to provide disclosure?

A
  • 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
45
Q

What are the grounds for continued detention?

A
  • 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
46
Q

What are the presumptive ceilings for detention?

A
  • 18 months for cases tried in the lowest provincial court

- 30 months for cases in the superior court

47
Q

What is the “ladder” principle in bail conditions?

A
  • 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
48
Q

Are prosecutors federal or provincial?

A
  • Attorney General

- Acts through Crown attorneys

49
Q

What does a federal attorney general responsible for?

A
  • prosecution under federal statutes other than the Criminal Code
50
Q

What does a provincial attorney general responsible for?

A
  • prosecution under the Criminal Code, Youth Criminal Justice Act
51
Q

What are the key powers of prosecutors?

A
  • 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
52
Q

What are the main principles that guide prosecutors?

A
  • 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
53
Q

What are the main mechanisms to keep prosecutors accountable?

A
  • 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
54
Q

Who are the key players in a criminal case?

A
  • judge
  • jury
  • prosecution
  • defence
55
Q

Who bears the burden of proof in criminal cases?

A
  • prosecution must prove beyond a reasonable doubt that defendant is guilty
56
Q

What is the order of trial?

A
  • 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)
57
Q

What is the role of a judge and jury?

A
  • 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
58
Q

What are the main steps in jury selection?

A
  • assembling a group of potential jurors (an array)

- selecting 12 jurors from the array (empaneling the jury)

59
Q

Is jury selection governed by federal or provincial legislation?

A
  • 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
60
Q

What is a jury array and how is it assembled?

A
  • 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)
61
Q

What are the basic qualifications to be a juror?

A
  • at least 18
  • Canadian citizen
  • Resident of the province
62
Q

Who cannot be a juror?

A
  • 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
63
Q

Who can be exempted from jury duty?

A
  • 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
64
Q

What does representative jury mean?

A
  • 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
65
Q

How are jurors selected from a jury array?

A
  • 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
66
Q

What are the two main ways the prosecution and defence may challenge potential jurors?

A
  • peremptory

- for cause

67
Q

Describe peremptory challenges.

A
  • 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
68
Q

Describe challenges for cause.

A
  • 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
69
Q

Who does the onus and burden of proof fall on in criminal cases?

A
  • 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)
70
Q

What are the types of evidence by sources?

A
  • testimony
  • real evidence (physical objects)
  • commissioned evidence
71
Q

What are the types of evidence by purpose?

A
  • direct (proves a fact)
  • circumstantial (proves one fact, from which another can be inferred)
  • demonstrative
  • illustrative (supports or explains other evidence)
72
Q

How do courts decide if evidence should be excluded?

A
  • 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
73
Q

What are the selected exclusionary rules?

A
  • privilege
  • hearsay
  • character evidence
74
Q

Describe privilege.

A
  • solicitor-client (‘innocence-at-stake’ exception)
  • spousal communications
  • public interest immunity
  • complainant’s privacy – judge determines if records should be produced
75
Q

Describe hearsay.

A
  • 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
76
Q

Describe character evidence.

A
  • 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)
77
Q

Who can testify?

A
  • 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
78
Q

Who is considered competent to testify?

A
  • 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
79
Q

Which witnesses can be compelled to answer?

A
  • 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
80
Q

What are the two methods to control juries’ overreliance on questionable evidence?

A
  • 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
81
Q

In what ways are the rules of evidence applicable to expert witnesses different from those applicable to other witnesses?

A
  • allowed to give opinion and beliefs as evidence
82
Q

Who are expert witnesses?

A
  • forensic scientists
  • psychologists
  • social scientists
83
Q

What do expert witnesses do?

A
  • help juries/judges understand certain matters/evidence
84
Q

What is the test for expert evidence?

A
  • relevance
  • necessity in assisting the trier of fact
  • absence of exclusionary rule
  • qualified expert

Prosecution & Sentencing (2 decks)

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