test 2 Flashcards
1
Q
With the exception of Nunavut, there are
A
four levels of courts that deal with criminal cases
- provincial/territorial courts
- provincial/territorial superior courts
- provincial appellate courts
- the Supreme Court of Canada
2
Q
the courts are responsible for determining
A
- guilt or innocence of accused persons
- an appropriate sentence for those who are convicted, and
- that the rights of accused persons are protected
3
Q
The principle of judicial independence is viewed as
A
being essential to the proper functioning of the courts
4
Q
The Four Levels of courts in Manitoba
A
Supreme Court of Canada
Provincial Superior Court (Appeals) - MB court of appeal
Provincial Superior Court (trial)- Court of Queen’s Bench of MB
Provincial Court
5
Q
Problem-solving courts
A
specialized courts that are designed to divert offenders with special needs from the criminal justice system
6
Q
three defining attributes of problem-solving courts are
A
1) a focus on addressing the underlying problems of offenders, victims and communities
2) interagency and interdisciplinary collaboration; and
3) accountability to the community
7
Q
Traditional court accountability
A
- use of resources within the court system (probation officers)
- impersonal, procedural
- little involvement outside of the court (Case handled off by the judge, no further involvement)
- focus on processing cases through the system
- focus on adjudicating
- communication through lawyers
8
Q
Problem-solving accountability
A
- collarboration with professionals outside of the court system (drug treatment staff, victim services, employment programs)
- personal, individualized
- involvement outside of the court (monitoring continued supervision)
- focus on effectiveness of methods (evaluating court effectiveness and if outcomes are being reached)
- focus on problem-solving
- judge communicates directly with “client”
9
Q
The intent of these problem-solving courts is to
A
shift from an adversarial or legalistic approach to one centred on treatment and rehabilitation
- focus is on addressing the underlying issues that contributed to criminal offending
- developing an intervention plan to address the behaviour as well as the circumstances that contributed to it
- also holding offenders responsible for their behaviour
10
Q
specialized problem-solving courts incorporate the concept of
A
therapeutic justice
- an approach in problem-solving courts that uses the law and the courts authority as change agents to promote the health and well-beingof offenders, while ensuring that their legal rights are protected and that justice is done
11
Q
offender participation in problem-solving courts is
A
voluntary
12
Q
Mental Health Court (MHC)
- objective process
- outcomes
A
Objective/process
- reduce the crimilization of the mentally ill
- operate at pre and post charge stage
outcomes
- reduce reoffending by 10 to 75%
- can reduce the amount of time offenders spend in custody, increase access to treatment services and change life circumstances
13
Q
Drug treatment court (DTC)
- objective/process
- outcomes
A
objective/process
- address alcohol/drug addiction of offenders and reduce reoffending
- treatment-oriented approach with specified conditions
outcomes
- may significantly reduce particpants drug use and criminal offending
- helps even offenders with length criminal records
14
Q
Domestice violence court
- objective/process
- outcomes
A
objective/process
- stop the cycle of domestice violence
- assist victims, their families, and offenders
- reduce revictimization
outcomes
- effective in meeting its objectives
- a major challenge is high rate of non-completion
15
Q
community wellness court
- objectives/process
- outcomes
A
objective/process
- address the needs of offenders with alcohol and drug problems, mental health issues and other underlying issues
outcomes
- effective in meeting its objectives
- a major challenge is high rate of non-completion
16
Q
Indigenous courts
A
- section 718.2(e) of the criminal code requires judges to consider sentencing options other than incarceratoion, particularly for indigenous offenders
-the principle that the judiciary should make efforts to explore alternative sentencing options- including the use of restorative justice- was affirmed by the supreme court of canada R. v. Gladue 1999
17
Q
gladue courts
A
- courts specifically for indigenous people
- gladue reports: historical impact statements
18
Q
First nations communities are becoming increasingly
A
involved in developing community-based courts that are centred on traditional indigenous spirituality and cultural practices
19
Q
the Tsuu T’ina Nation Peacemaker court is located
A
on the Tsuu Nation near calagary
- centred on peacemaking circles
- has an indigenous judge, crown prosecutor and court clerks
20
Q
Indigenous peoples Court (Thunder Bay, Ontario)
A
- uses a restorative justice approach to sentencing
- draws upon indigenous culture and traditions
- helps persons who self-identify as First Nation, Indigenous, Inuit, or Metis and who are in conflict with the law
- elders play key role
- to qualify to appear in court, persons must plead guilty and accept responsibility for their offences
21
Q
Circuit Courts
A
- in many northern and remote areas, judicial services are often provided via circuit courts
- circuit court parties, composed of a judge, a court clerk, a defence lawyer, a Crown counsel, and perhaps a translator, travel to communities (generally by plane) to hold court. Many communities are served regularly
- most of the communities are too small to have courthouses, and so the court is held in schools, community centres or other buildings that are available
22
Q
The superior courts are the highest level of courts in a province/territory
A
- administered by provincial and terrirotiral governments
- superior court judges are appointed and paid by the federal government
- about 10% of criminals cases are heard in the superior courts
23
Q
Superior courts generally have __ levels
A
trial: hears cases involving serious criminal offences
appeal: hears criminal and civil appeals
24
Q
The supreme court of canada was established under
A
the constitution act 1867
- the governor in council appoints the nine judges of the supreme court
– selected from the major regions of the country; hpwever, three of the judges on the court must be from Quebec
– decisions of Supreme Court are finale and cannot be appealed
25
The supreme court receives hundreds of applications for cases to be considered, but grants only about
10%
- cases are heard by an odd number of judges - 5,7 or 9 to avoid ties
- cases often involve interpretations of the charter of rights and freedoms
- many cases are a leave to appeal the decision of a lower court
- a government asks the supreme court for a legal opinion on an important legal question, a process that is referred to as a reference or reference case.
26
courtroom workgroup
the criminal justice professionals, include the judge, crown counsel, and defence lawyer, present in the criminal court courtroom
- other professionals may appear on occasion (Expert witnesses)
- the advent of problem-solving courts has resulted in an expansion of the courtroom workgroup to include representatives from agences and community organizations; various restorative justice approaches include members of the community as well
27
The judge interprets
the law, assesses whether evidence can be admitted, rules on motions made by the Crown Counsel and defense lawyer and determines the truthfulness of evidence
- in most cases, this also includes making a decision on the guilt or innocence of the accused and passing sentence
- a key role of the judge is serving as a "gatekeeper" of evidence presented during the trial, including expert testimony
28
Justices of the peace play a variety of roles depending upon the jurisdiction
- issuing search warrants and conducting bails hearings
- presiding over hearings involving provincial/territory regulatory offences
- may also preside in small claims courts, work in court registries and handle court scheduling
29
the primary responsibility of the defence lawyer is to
ensure that the rights of the accused person are protected throughout the criminal justice process
- often actively involved in attempting to negotiate a plea for their client outside of the formal court process
- presents evidence and questions witnesses, experts, and others to build a case of innocence for the accused
- cross-examines witnesses for the prosecution and challenging the evidence that is presented by the crown
30
Duty counsel if often
provided as part of a provincial or territorial legal aid plan to ensure that persons who cannot afford to hire a private lawyer have representation
- first point of contact for a person who has been detained or arrested
- may also represent an accused in court
31
Crown counsel are
lawyers who represent the Crown (government) in court and who are responsible for prosecuting criminal cases
- provincially apointed crown attorneys prosecuting criminal code offences
- federally appointed crown attorneys prosecuting persons charged with violating other federal statutes, such as the controlled drugs and substances act
- carry out their tasks on behalf of the community
- responsible for laying charges against the accused in some provinces
32
Court Administrators
also known as court registrars or court clerks- perform a variety of administrative tasks
33
sheriffs support the court by
assisting in jury management, escorting accused and convicted persons, and providing security in the courtroom
34
judges at the provincial court level are appointed by
provincial governments
35
judges of the superior courts are appointed by the
federal government
36
Appointments are for
life. once on the bench, judges need not consider the career implications when making controversial decisions
37
provincial, territorial and federal court judges are guided by
ethical principles that set out in various provincial and territorial documents and, for federal appointed judges, by the Canadian Judicial Council
- centre on integrity in personal and professional conduct
- highlight impartiality and objectivity
- a duty to follow the law
- the importance of appropriate personal conduct
38
judicial independence
the notion that judges are not subject to pressure and influence and are free to make impartial decisions based solely on fact and law.
39
Case backlog and case delay are due to a number of factors, including
- a lack of judicial resources
- ineffective use of resources
- too few judges
- complexity of criminal cases
- inadequate case flow management
- efforts of defence counsel to lengthen the period of time that accused persons are confined prior to trial on remand
40
The ruling in the SCC cases R. v. Jordan (2016 SCC 27) redefined the constitutional right to a trail within a reasonable time
- prior to Jordan, judges could determine that case delay violated the constitutionally guaranteed right "to be tried within a reasonable time" under s.11(b) of the Charter and order a stay of proceedings or dismissal of the charges.
- Jordan set presumptive timelines for the disposition of cases in the courts from the time the person is charged to the actual or anticipated end of trial
-- 18 months for cases tried in provincial court
-- 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry)
41
Summary Conviction
- generally, a less serious criminal offence; when the crown proceeds summarily, it is resolved in a provincial court.
- triable before a magistrate or judge and, on conviction, often has a default maximum penalty of a fine (not to exceed 5,000$) or 6 months in a provincial correctional facility or both
42
indictable offences
- generally, a more serious criminal offence
- may carry much longer maximum prison sentences; examples include murder, robbery, aggravated sexual assault q
43
Hybrid offences
- offences that can be proceeded summarily or by indictment- a decision that is always made by the Crown
44
The Criminal Code (R.S.C. 1985) Defines three categories of indictable offences
1. offences under the absolute jurisdiction of provincial courts (s.553)
2. offences under the absolute jurisdiction of superior courts (s.469)
3. Electable offences- the right of the accused to choose level of court, judge vs. jury.
45
Section 469 of the Criminal code is
a list of serious offences that are non-electable offences.
- the list includes murder, treason, and piracy. these cases must be tried in a superior court
46
Section 553 of the criminal code lists
the less serious indictable offences (or hybrid offences where the crown proceeds by indictment) that are also non-electable
- the accused person has no choice but to be tried in a provincial or territorial court
- there are no jury trials in provinical court t
47
Most indictable offences are
electable offences and the accused person has three modes of trial from which to choose
1) trial by a provincial or territorial court judge
2) trial by a superior court judge sitting alone
3) trial by a superior court judge and a jury
48
The charter of rights and freedoms guarantees the right to a jury trial if
the alleged offence carries a maximum sentence of more than 5 years imprisonment
49
If an offence is a hybrid offence ...
the crown chooses to proceed either summarily or by indictment
50
If an indictable offence is an electable indictable offence,
the accused chooses from the three possible modes of trial
51
Preliminary Hearing
- A hearing to determine whether there is sufficient evidence to warrant a criminal trial
- This (usually) short hearing is held to determine whether there is a prima facie case
- for serious indictable offences
- all magistrate or provincial court judges listens to some (or all) of the Crown witnesses
- The judge does not rule on the guilt of the accused at the preliminary hearing, but must decide if the Crown has evidence that could be used to prove guilt
- in rare cases, the provincial attorney general can skip the preliminary hearing and go straight to trial called "preferring the indictment"
52
Section 11 of the Charter provides that "legal rights" are the right for every citizen
a) to be informed without unreasonable delay of the specific offence
b) to be tried within a reasonable time
c) not to be compelled to be a witness in proceedings against that person in respect of the offence
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
e) not to be denied reasonable bail without just cause
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for 5 years or a more severe punishment
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or International law or was criminal according to the general principles of law recognized by the community of nations
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of the commission and the time of sentencing, to the benefit of the lesser punishment
53
Section 12 of the Charter
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment
54
Section 13 of the Charter
- a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution of perjury or for the giving of contradictory evidence
55
Section 14 of the Charter
A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter
56
Laying an information
The police are usually responsible for laying an information
- it outlines the allegation that an individual contravened a criminal law
- a warrant for arrest or a summons to appear will be issued
57
Laying a charge
- the police and crown exercise great discretion to lay a charge
- charges are not laid in many cases
- the crown must approve before the police can lay a charge (BC, NB, QC)
58
Appearance notice
- appearance notice can be issued followed by the laying of an information
- sets out the details of the allegation against the accused person
- warns the accused that failure to appear in court is a criminal offence
59
Summons
- briefly states the allegation and directs the person to appear in court on a certain day
- summons is served on the accused, usually by a police officer
- accused may be charged criminally with failing to appear in court
60
Arrest
- police can arrest without a warrant and then lay the information
- release the accused from police custody or keep in custody
- presumption is that everyone will be released from police custody after arrest
61
Judicial Interim release (Bail)
- overseen by a JP or a superior court judge
- brought to court within 24 hours or as soon as is reasonably possible
- accused released or held in custody
- section 515 of Criminal code requires judges to release accused persons on bail unless crown can show why release should be denied
- Crown must show that detention until trial date is necessary at show cause hearing
- accused persons may also be asked to enter into a recognizance
62
Conditions of Bail
- the JP or judge decides to release the accused
- Young offenders may have to live with a guarantor
- statutory conditions- include reporting to a bail supervisor
- other conditions may include no alcohol or drugs, house arrest and/or no contact orders
63
Remand
which refers to accused individuals who have been charged and detained in custody
- have been denied bail
- have yet to appear before a judge
- awaiting sentence
- awaiting commencement of a custodial sentence
-remanded into custody through the issuance of a warrant of committal by a JP or judge
64
Security certificates
Under the Immigration and Refugee Protection Act (S.C. 2001, c.27), security certificates can be issued against non-citizens who are deemed to pose a threat to national security
- held in detention
- without charge
- for an indefinite period of time
Certificates must be signed by both the minister of citizenship and immigration and the Minister of public safety and emergency preparedness
65
All adults accused of crimes have the right to retain legal counsel
- The Charter of Rights and Freedoms stipulates that persons who are arrested and detained must be informed of this fact
- they must have the opportunity to access preliminary advice from duty counsel
66
legal aid for the accused
delivered by lawyers in private practice, who are paid by a legal aid plan, by legal aid staff lawyers, and by lawyers working in legal aid clinics
67
Accussed persons who cannot understand the object and consequences of the proceedings because of mental disorder are unfit to stand trial
- s.2 of the Criminal Code states that an offender is unfit to stand trial when it is determined by the court that they are:
- unable on account of mental disorder to conduct a defence at any stage of proceedings before a verdict is rendered or to instruct counsel to so, and, in particular, unable to account of mental disorder to:
a) understand the nature or object of the proceedings
b) understand the possible consequences of the proceedings
c) communicates with counsel
68
Plea Bargaining
involves discussions between the Crown prosecutor and the defence surrounding the charge(s) facing the accused
- discussions of procedure
- discussions of the sentence
- discussions of the facts of the alleged offence
69
Crown can promise the possibility of a lower sentence by
- withdrawing some changes
- reducing a charge to a lesser but included offence
- proceeding summarily rather than with an indictment
- asking the judge that multiple prison sentences run concurrently rather than consecutively
- agreeing to a joint submission to the judge about sentencing
70
Plea bargaining
supporters say
- saves time and money
- reduces case backlog
- spares complaints from testifying
- eliminates uncertainty over the final verdict
- accused admits guilt
- can provide evidence to prosecute others
71
Plea bargaining
Detractors say
- No guidelines, so is subject to abuse
- Puts pressure on innocent to plead guilty
- Brings administration of justice into disrepute
- Not open to public scrutiny
72
A key concept in Canadian criminal justice is the
open court principle, which holds that, except in special circumstances, every stage of the court process must be open and accessible to the public
- including the testimony of witnesses
-public access to court proceedings is viewed as essential to ensure that accountability of the judicial system
73
The "trier of fact" in a criminal case
usually a judge- decides whether the guilt of the accused person has been proved beyond a reasonable doubt
- in a small number of cases, a jury of citizens makes this decision
- the jury decides on the true facts and determines the persons guilt
- the judge makes a "charge to the jury" during which the judge instructs the jurors about the law that applies to the case
- jurors do not give reasons with their verdict
74
The disclosure of evidence or discovery includes relevant information including
- the names and addresses of persons the Crown intends to call as witnesses
- as the results of any examinations or tests on the accused
- materials from wiretaps and surveillance
- names of expert witnesses that the crown intends to call
75
R. v. Stinchombe ((1991) s SCR 326) requires that the Crown
give the defence access to all evidence that might be presented in a trial, including exculpatory evidence
76
R. v. Neil (2009 SCC 3) places a duty on the crown
to disclosure any records of misconduct by the investigating police officers in the case
77
A trial takes place if the
accused person who pleads not guilty does not change that plea and the Crown does not withdraw the charges or terminate the matter with a stay of proceedings
78
Defences
- False accusations: wrong person arrested or fabricated by complaint
-Mental state: NCRMD, intoxication, automatism
- Justification: Provocation, duress, consent, necessity, self defence, battered woman
- Procedural: validity of law, prosecution, admissibility of evidence, charter violation
79
The jury
Juries are finders of fact, while the role of the judge is to interpret the law, determine the admissibility of evidence, and instruct the jurors
- it is the jury that will determine the guilt or innocence
- jury decisions must be unanimous
- if the jury returns a guilty verdict, then the judge imposes a sentence
80
the three essential attributes of a criminal jury are
1) impartiality
2) competence
3) representativeness
81
there is the possibility of appeal once a case has been concluded in court
- in Canada, either the crown prosecutor or the defence lawyer can file an appeal
- a distinction is made between grounds for appeal that involve questions of law, those that involve questions of fact, and those that involve both
82
Verdict Appeals
- Direct offender to be acquitted
- Order a new trial
- Refuse to hear the appeal
- Hear the appeal and dismiss it
- Substitute a lesser but included offence
83
The Canadian Victims Bill of Rights entrenched a role for crime victims in the court process
- victims may be called upon to testify
- summoned to court (by subpoena) and paid a small fee, just like any other witness
- victims can seek financial redress for the harm caused by the victimization, including compensation for property offences, by restitution
- criminal injury compensation programs operate in most provinces
84
Wrongful convictions rarely occur as the result of a signle mistake or event
- "tunnel vision" on the part of police and the crown
- mistaken eyewitness identification and testimony
- false confessions
- testimony of in-custody informers
- defective, unreliable, and unsubstantiated expert testimony
85
Radelet, Bedau, and Putnam (1992) ascertained that
416 known miscarriages of justice
in capital or potentially capital cases occurred between 1900 and 1990 in the United
States, including 23 cases where the accused was executed” (225).
86
A study in the U.K. revealed that as many as 6% of the inmates in Long Lartin maximum‐ security prison may have been
wrongly convicted, “a figure presumed typical of other
British prisons.”
87
How Denov and Campbell categorize the factors
- eyewitness error
- professional misconduct
- false confessions
- use of jailhouse informants
- racial and class bias
88
Eyewitness error
“because of normal deficiencies in the human memory process, eyewitness
identification, where witnesses are called on to report their version of events,
is inherently unreliable” (226)
* Research in US & UK “reveals that eyewitness error may be the single most
important factor leading to wrongful convictions in those countries”
89
eyewitness error may happen for several reasons
- unconscious transference
- the malleability of confidence
- suggestive police interviewing
- unconscious transference: wwhen a person seen in one situation is confused or recalled as a person seen in another situation
- malleability of confidence: witnesses who identify a susppect from a police lineup or group of photos are far more confident of their choice if given positive feedback from authorities
90
Professional misconduct
- police may either inadvertently or intetionally suppress, lose, misinterpret or overlook evidence that supports the defendants claim of innocence
- ex. prejudical lineups, the misuse of informants, soliciting of false confessions, and relying on poor forensic science
91
tunnel vision
- motivated by a desire to strengthen the case against a suspect that professional are convinced is guilty
- the guilt of one particular suspect is assumed, and evidence is then manipulated by authorities through the use of a number of questionable practices to prove that guilt
- can occur among police or prosecution
92
Police interrogation techniques
* “...contemporary methods of psychological interrogation may cause cognitively and
intellectually normal individuals to provide false confessions to serious crimes of
which they are entirely innocent”
* “techniques are frequently used to convince suspects that their situation is
hopeless and that their only recourse is to confess to the crime.”
* “False confessions appear to take place during the early and emotionally charged
days following a crime and appear to be facilitated by the ability of law
enforcement officials... to lie and confront suspects with fabricated evidence”
93
use of jailhouse informants
“prisoners provide information to law enforcement officials in exchange for money, property, or leniency in sentencing, which calls into question their reliability”
* “In one study of the 13 Illinois death row inmates found to be wrongfully convicted, nearly 40% were prosecuted using the testimony of jailhouse informants”
* “American studies indicate that to the average juror, there is little
difference between the manner in which they receive and weigh a
confession obtained by a police officer and a confession attained through a jailhouse informant” (231)
* E.g. Thomas Sophonow in Manitoba
94
Section 718 of the Criminal Code (R.S.C. 1985, c. C-46)
sets out the purpose and principles of sentencing
The fundamental purpose of sentencing is to protect society and
to contribute, along with crime prevention initiatives, to respect for
the law and the maintenance of a just, peaceful and safe society
by imposing just sanctions that have one or more of the following
objectives:
a) to denounce unlawful conduct and the harm done to victims
or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing
offences;
c) to separate offenders from society, where necessary
d) to assist in rehabilitating offenders
e) to provide reparations for harm done to victims or to the community
f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community
95
Purpose and principles of sentencing
1) denuciation of unlawful and harmful conduct
2) deterrence
3) separation from society
4) rehabilitation
5) reparation
6) promoting a sense of responsibility
7) proportionality
8) principle of restraint
96
Goals of sentencing
- utilitarian
- general deterrence
- specific deterrence
- rehabilitation
- incapacitation
97
goal of sentencing
- retributive
- denunciation
- retribution
98
goals of sentencing
- restorative
- resolve problems
- protect the public
- involve offender, victim and community
99
Sentencing options
- Discharge --
absolute / conditional
absolute- offender is found guilty, but technically not convicted. with criminal record for one year, and then removed
conditional- offender is found guilty and released and must comply with the conditions of a problem
100
Sentencing options
Fine
must pay a specific amount of money within a specified time or face imprisonment on default
101
sentencing options
Forfeiture
convicted offenders may be required to surrender procceeds of time to crown
102
Sentencing
- Suspended
- conditional
- intermittent
- imprisonment
Suspended: convicted of the offence, but sentence is suspended pending successful completion of probation
Conditional: offender recieves term of confinement and serves it in the community, supervised by a probation officer
Intermittent: a custodial sentence served on a "part-time" basis and generally not to exceed 90 days
Imprisonment: offender is sentenced to a period of confinement in a provincial or federal institution
103
Concurrent sentences
- sentences served simultaneously
- criminal code
104
consecutive sentences
- sentences served separately, one after another
- provincial offences act 1990
- protecting canadians by ending sentence discounts for multiple murders act 2011
105
Aggravating factors
Mitigating factors
case law precedent
aggravating factors: these are facts about an offender and the offence that are considered negative and tend to increase the severity of a sentence (violence, violation of a position of authority)
Mitigating factors: these are facts about the offender that may decrease the severity of a sentence (Being indigenous, being addicted)
Case law precedent: judges will consider sentencing decisions in previous, similar cases. a general principle is that there should be similar sentences in similar cases
106
Pre-sentence reports
Victim impact statements
Psychological assessments
Pre-sentence reports: the PSR, prepared by probation officers, presents information on the offender's background, present situation, and risk/needs. it also sets out options for sentencing that the judge will consider
Victim impact statements:these contain information on the harm done to the victim (psychological and physical) as well as the consequences of the victimization
psychological assessments: these are completed on offenders and address the mental state and treatment needs of the offender
107
Indigenous offenderws
Black offenders
Indigenous: section 718.2(e) requires judges to consider alternatives to incarceration for indigenous offenders
Black: defence lawyers are increasingly asking for cultural assessments to be prepared on black offenders prior to sentencing
108
Section 752 of the Criminal Code contains procedures and criteria for declaring someone a “dangerous offender.”
- a person who is given an indeterminate sentence upon conviction
- a particularly violent crime
- a pattern of committing serious violent offenders
- the crown makes a formal application after conviction but before sentencing
- the offender is detained in a federal prison but there is no set length on the sentence
109
Dangerous offender designation
- First threshold
- Second threshold
- Dangerous offender designation
- First threshold: at least one serious personal injury offence
- Second threshold: a pattern indicating offender has difficulty controlling behaviour
- Dangerous offender designation: offender "constitutes a threat to the life, safety or physical or mental well-being of other persons"
110
Section 753 of the Criminal Code contains provisions for declaring someone a “long-term offender.
- recieved a sentence of more than two years
- substantial risk that the offender will commit a serious personal offence after release from prison
- long-term supervision order comes into effect after sentence ends
- the offender will be supervised by a parole officer for up to 10 years
111
Section 718.2(e) of the Criminal Code requires judges consider alternative sentencing options for Indigenous offenders who would otherwise be sent to prison, reducing the overrepresentation of
Indigenous peoples in prison.
- SCC affirmed this principle in R. v. Gladue 1999
- must consider "unique systemic or background factors" when determining the sentence
- bail hearings, sentencing, parole eligibility, dangerous offender application hearings, and other points where the liberty of an indigenous offender is at stake
112
The race of the accused person and its role in sentencing is becoming increasingly important
The Ontario Court of Appeal in R. v. Borde (2003) ruled
judges can take into account systemic racism as a mitigating
factor.
* In R. v. Reid (2016 ONSC 954), an Ontario judge spared a
young Black man jail time and imposed a conditional sentence, requiring the man to serve two years under house arrest and attend counselling.
* In R. v. Gabriel (2017 NSSC 90), the judge concluded that
the seriousness of the crime was not mitigated by Gabriel’s
experience as a Black Nova Scotian.
113
There are three important steps in the decision-making of trial judges
1) identifying the relevant factors in the case
2) identifying the relevant law
3) combining the relevant facts and the law to produce the correct outcome
114
Canadian judges have considerable discretion in selecting a sentence
- Section 718.3(1) of the criminal code states that discretion is permissible unless a specific punishment is required under a particular section
- the sentence must fit the crime- reflects the "going rate" for similar offences
- must take into account the offender's particular circumstances
115
The fundamental principle of sentencing, as
stated in section 718.1 of the Criminal Code, is
that of proportionality
a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender
- parliament has specified factors that judges should consider when sentencing drug cases under the controlled drugs and substance act
- every offence has a maximum sentence that a judge cannot exceed
116
Case law precedent
a key principle of sentencing in section 718.2(b) of the criminal code is that two similar crimes committed by two similar offenders in similar circumstances should draw similar sentences
117
Mandatory minimum sentences
several offences, on conviction, carry mandatory minimum sentences
- in R. v. Smickle 2013, the Ontario Court of Appeal ruled that a three-year mandatory minimum sentence for gun possession was "cruel and unusual punishment"
- judges in recent years found that certain mandatory minimum sentences violated the charter of rights and freedoms
118
Section 722.1 of the Criminal Code provides that,
at the sentencing stage, a crime victim can submit
to the court a victim impact statement (VIS)
explaining his or her personal/emotional reaction
to being victimized, any physical injuries caused
by the victimization, and the financial impact of
the victimization.
- no limitations on the kinds of offences
- most commonly used for crimes against the person
119
Section 722.2 of the Criminal Code provides that
communities can also present impact statements
in court. A community impact statement
describes to the court how the crime committed
by the offender impacted the community
- allows the community to explain to the court and the offender how the crime has affected the community
120
circle sentencing
- crime is a small part of a larger conflict
- the sentence is a small part of the solution
- the focus is on present and future conflict
- takes a larger, holistic view of behaviour
- focuses on social conflict
- the sentence is the least important part of the process; most important is the process itself, which shapes the relationship among the aprties
121
Criminal court
- the crime
- the sentence resolves the conflict
- the focus is on past conduct
- takes a narrow view of behaviour
- not concerned with social conflict
- the sentence is the most important part of the process
122
- The courts are responsible for determining
the guilt or innocence of accused persons and for imposing an appropriate sentence on those who are convicted
o They are also responsible for ensuring that the rights of accused persons are protected; this often involves monitoring the activities of the various agents of the criminal justice system (including the police and systems of corrections)
123
does canada have a uniform court system
- Canada does not have a uniform court system. This often leads to considerable confusion when the various provincial/territorial and federal courts are discussed.
124
- With the exception of Nunavut, there are four levels of courts that deal with criminal cases:
provincial/territorial courts, provincial/territorial superior courts, provincial appellate courts, and the Supreme Court of Canada (SCC)
o Nunavut has a unified, or single-level, court, the Nunavut Court of Justice, in which the powers of the lower courts have been combined into one superior court where all judges can hear all types of cases.
125
- The provincial and territorial courts are the
lowest level of courts; nearly all criminal cases begin and end in them
- Their judges are appointed by the provinces and territories, which also fund these courts and have jurisdiction over them. Provincial and territorial court judges sit without juries.
- These courts also hear cases under the Youth Criminal Justice Act (S.C. 2002, c. 1 ), as well as cases involving alleged offences against provincial statutes
126
- Problem-solving courts
: specialized courts that are designed to divert offenders with special needs from the criminal justice system
127
- The three defining attributes of problem-solving courts are
(1) a focus on addressing the underlying problems of offenders, victims, and communities; (2) interagency and interdisciplinary collaboration; and (3) accountability to the community.
128
- The intent of these problem-solving courts is to shift from an
adversarial or legalistic approach to one centred on treatment and rehabilitation.
129
- The focus is on addressing
specialized problem-solving courts
the underlying issues that contributed to criminal offending and developing an intervention plan to address the behaviour as well as the circumstances that contributed to it, while also holding offenders responsible for their behaviour.
130
- Specialized problem-solving courts incorporate the concept of
therapeutic justice, which involves the use of the law and the authority of the court as change agents in promoting the health and well-being of offenders while ensuring that their legal rights are protected and that justice is done
o An approach in problem-solving courts that uses the law and the court's authority as change agents to promote the health and well-being of offenders, while ensuring that their legal rights are protected and that justice is done.
131
- Traditional court accountability
o Use of resources within the court system (probation officers)
o Impersonal, procedural
o Little involvement outside of the court (case handed off by judge, no further involvement)
o Focus on processing cases through the system
o Focus on adjudicating
o Communication through lawyers
132
- Problem-solving court accountability
o Collaboration with professionals outside of the court system
o Personal, individualized
o Involvement outside of the court
o Focus on effectiveness of methods
o Focus on problem-solving
o Judge communicates directly with “client”
133
The effectiveness of specialized courts
- Ongoing issues with many of the courts are high rates of non-compliance, the conditions imposed by the court, and non-completion of programs (84 percent in one study of the Toronto Drug Treatment program). 14 Many of the courts have had difficulty attracting Indigenous men and women. 15
- There are also the concerns that the therapeutic approach of the problem-solving courts compromises the fact-finding mandate of the court and that judges may assume the role of therapist, which is outside of their mandated judicial role.
- Despite these concerns, there is evidence that these courts may be an effective alternative to the traditional criminal justice system. 18 The courts appear to be most effective in reducing reoffending when the principles of risk, needs, and responsivity (discussed in Chapter 10) are followed- that is, when attention is given to selecting offenders who are most suited for the program in terms of their level of risk, their needs, and their motivation or ability to complete the requirements imposed by the courts.
134
- Section 718.2(e) of the Criminal Code (R.S.C. 1985, c. C-46) requires judges to consider sentencing options other than incarceration, particularly for indigenous offenders
Some are referred to as "Gladue Courts," referring to an SCC decision in R. v. Gladue, which held that specific attention must be given by the criminal justice system to the unique circumstances of Indigenous persons whenever their liberty is at stake. These courts provide an opportunity to consider the special circumstances of Indigenous offenders and to utilize alternative sentencing options
135
Provincial/territorial circuit courts
- Circuit court parties, composed of a judge, a court clerk, a defence lawyer, a Crown counsel, and perhaps a translator, travel to communities (generally by plane) to hold court.
- Most of the communities are too small to have courthouses, and so the court is held in schools, community centres, or other buildings that are available. Unlike in more urban areas, the circuit court hearings are often a community event, and there are often many persons from the community, of all ages, observing the proceedings.
136
- The superior courts are the
highest level of courts in a province/territory and are admin istered by provincial and territorial governments; however, superior court judges are appointed and paid by the federal government.
137
- Superior courts generally have two levels
trial and appeal
o These two levels may be included in the same court, with two divisions (trial and appeal), or they may involve two separate courts
o The trial-level superior court hears cases involving serious criminal offences; the appeal-level superior court hears criminal appeals (and civil appeals as well) from the superior trial court
o After a case has been decided at the trial level, the accused has the right to appeal the verdict or the sentence, or both, to a higher court
o Appeals of provincial court decisions may have to be heard first in a superior court. Appeals from the trial divisions of the superior courts go directly to the provincial or territorial court of appeal.
There is one court of appeal in each province and territory, except in Quebec and Alberta, where there are two. In all provinces, these courts are called the Court of Appeal (for example, the British Columbia Court of Appeal or the Quebec Court of Appeal)
138
- The primary activities of appeal courts centre on
reviewing decisions of the lower courts. The focus is on how the law was applied to the facts in the case
o While many preliminary matters are dealt with by a single judge, certain final hearings require at least three judges to hear the appeal, and the final decisions rests with the majority.
139
- If at least one appellate judge dissents (that is, does not agree with the majority), the unsuccessful party may pursue another appeal
at the federal level. The "court of last resort" -the Supreme Court of Canada-is located in Ottawa but hears cases from all provinces and territories.
140
o The Supreme Court was established under the
Constitution Act (1867), which authorized Parliament to establish a general court of appeal for Canada, although the bill creating the court was not passed until 1875.
141
- While the Supreme Court receives hundreds of applications for cases to be considered
it generally grants only about 10 percent of requests
o Cases are heard by an odd number of judges-five, seven, or nine-to avoid ties
142
The courtroom workgroup
- The professionals who populate the criminal court courtroom can be described as tl1e courtroom workgroup
o The criminal justice professionals, including the judge, Crown counsel, and defence lawyer, who are present in the criminal court courtroom.
143
- The presiding judge in a criminal case is a
"trier of fact" and plays a variety of roles
- These include interpreting the law, assessing whether evidence can be admitted, ruling on motions made by the Crown counsel and defence lawyer, and determining the truthfulness of evidence
o In most cases, it also includes making a decision on the guilt or innocence of the accused and passing sentence
- A key role of the judge is serving as a "gatekeeper" of evidence presented during the trial, including expert testimony, one legal scholar noting
144
Defence lawyers
- Defence lawyers represent persons who are charged with a criminal offence(s)
- The primary responsibility of the defence lawyer is to ensure that the rights of the accused person are protected throughout the criminal justice process
- The results of a survey ( = 224) conducted as part of the study found that women were treated differently from men in the courtroom by judges, Crown counsel, and other court staff, with only 22 percent of respondents viewing women and men as treated the same
145
Duty Counsel
- The duty counsel lawyer is first point of contact for a person who has been detained or arrested
- These services are often provided as part of a provincial or territorial legal aid plan to ensure that persons who cannot afford to hire a private lawyer have representation.
146
Crown counsel
- Crown attorneys are lawyers who represent the Crown (or government) in court and who are responsible for prosecuting criminal cases
- Crown counsel have been described as being a "cornerstone of the criminal justice system." Crown counsel carry out their tasks on behalf of the community, rather than the victims of crime
- The role, duties, and responsibilities of provincial Crown counsel are set out in legislation
- At trial, the Crown presents the state's case in an attempt to prove beyond a reasonable doubt that the accused is guilty of the offence with which he or she has been charged.
147
- Judges at the provincial court level are appointed b
provincial governments, while judges of the superior courts are appointed by the federal government.
148
- Appointments are for
life so that once on the bench, judges need not consider the career implications when making controversial decisions
149
- The staying (that is, suspension or discontinuance) of nearly 100,000 criminal cases a year in Canada is due in part to failures
to get the cases to court within a reasonable period
150
The sources of case delay
- Case backlog and case delay are due to a number of factors, including a lack of judicial resources, ineffective use of resources, too few judges, the complexity of criminal cases (multi-charge cases compose a majority of the cases in criminal court), inadequate case flow management by chief judges and trial judges, and the efforts of defence counsel to lengthen the period of time that accused persons are confined prior to trial on remand.
- Case delay also has an impact on crime victims and witnesses to crime, with the potential that victims are revictimizecl by the process and prevented from reaching closure on the incident.
151
- When the case involves a summary conviction offence, or when the Crown proceeds summarily, it is resolved in a
provincial court
152
- Summary trials do not involve
juries, and the sentences are usually less severe
153
- The Criminal Code (R.S.C. 1985, c. C-46) defines three categories of indictable offences
(1) offences under tl1e absolute jurisdiction of provincial courts; (2) offences under the absolute jurisdiction of superior courts; and (3) electable offences
154
- Indictable offence
Generally, a more serious criminal offence that may carry maximum prison sentences of 14 years to life; examples include murder, robbery, and aggravated sexual assault.
155
- Hybrid (or elective) offences:
Offences that can be proceeded summarily or by indictment-a decision that is always made by the Crown
156
- Section 553 of the Criminal Code lists the less serious indictable and hybrid (elective} offences wherein the accused person has no choice but to be
tried in a provincial or territorial court, even if the Crown proceeds by indictment.
- The offences include theft (other than cattle theft), obtaining money on false pretenses, fraud, and mischief (where theft subject matter of the offence is not a testamentary instrument and its value does not exceed $5,000)
- The list also includes keeping a gaming or betting house and driving while disqualified. There are no jury trials in provincial court.
157
- Section 469 of the Criminal Code is a list of serious offences that are also non-electable offences
- The list includes murder, treason, and piracy. These cases must be tried in a superior court before a jury unless both the accused and tl1e provincial attorney general agree to waive this right.
158
- The processing of non-electable offences begins with a
preliminary hearing, sometimes called a preliminary inquiry.
o This (usually) short hearing is held to determine whether there is a prima facie case-that is, sufficient evidence to justify the time and expense of a criminal trial.
o The judge does not rule on the guilt of the accused at the preliminary hearing, but must decide if the Crown has evidence that could be used to prove guilt
159
- These are the electable offences, and the accused person has three modes of trial from which to choose
(1) trial by a provincial or territorial court judge; (2) trial by a superior court judge sitting alone; or (3) trial by a superior court judge and a jury
160
- The Charter of Rights and Freedoms guarantees the right to a
jury trial if the alleged offence carries a maximum sentence of more than five years' imprisonment. However, not every accused person wants a jury trial
161
. Included in section 11 of tl1e Charter, "legal rights" are tl1e right for every citizen
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
(e) not to be denied reasonable bail without just cause
162
Sections 12-14 of the charter continue
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who 1s deaf has the night to the assistance of an interpreter.
163
- An information is a
a document that briefly outlines an allegation that a person has contravened a criminal law in a certain location during a specified period. Multiple offences are divided into separate counts
164
- After a prosecution has been initiated, the next step is to
ensure that the accused appears in court to answer the charge.
- If the alleged offence is not serious and the police have no reason to believe that the accused will fail to appear in court, an appearance notice can be issued followed by the laying of an information
- The appearance notice sets out the details of the allegation against the accused person, provides the court date, and warns the accused that failure to appear in court is a criminal offence.
165
Summons
- Another option is for the police to lay the information first, in which case the JP will likely issue a summons, which briefly states the allegation and directs the person to appear in court on a certain day
- The summons is then served on the accused, usually by a police officer. If the accused does not appear in court, and if there is proof that he received the summons, the judge may issue a bench warrant for his arrest; in addition, the accused may be charged criminally with failing to appear in court.
166
Arrest
- If the situation dictates, the police can arrest without a warrant and then lay the information
- Or, if there is time, an officer may seek an arrest warrant from a JP. Following the arrest, the next decision to be made is whether to release the accused from police custody or keep him or her in custody
167
- There are only three circumstances in which immediate release might not occur:
(1) The charge pertains to a serious indictable offence carrying a maximum sentence of more than five years in prison; (2) the police have reasonable grounds to believe the person will not appear in court; and/or (3) the police have reasonable grounds to believe it is necessary, in the public interest, to detain the accused
168
- When an arrest is made without a warrant, the police
have the authority to release some accused persons from police custody; however, in some circumstances a bail hearing before a JP or a judge is required.
169
Judicial interim release (bail)
- is the release of a person who has been charged with a criminal offence.
o It is overseen by a judicial functionary-usually a JP, but by a superior court judge if the offence is a serious one, such as murder.
- Persons can be detained by the court only in situations where it is necessary to ensure attendance in court, to protect the public, and to maintain confidence in the administration of justice.
- The JP or judge must determine whether the accused will be released or will remain in custody until the case is disposed of. Section l l(e) of the Charter stipulates that any person charged with an offence has the right "not to be denied reasonable bail without just cause."
- Section 515 of the Criminal Code, entitled "Judicial Interim Release," requires judges to release accused persons on bail unless tl,e Crown can show why bail should be denied.
- If the Crown chooses to oppose the release of the accused, the Crown must demonstrate, at a show cause hearing, that detention of the accused until the trial date is necessary
- Detained persons seeking pre-trial release are often required to make multiple appearances in court before a ruling is made; overcrowded court dockets and a lack of personnel to participate in bail hearings are among the probable reasons for the delays.
- Accused persons may also be asked to enter into a recognizance in which they agree to forfeit a set amount of money if they fail to appear in court
170
The conditions of bail
- There are "statutory" and "other" conditions of bail
- Statutory conditions include reporting to a bail supervisor, while other conditions may include abstaining from alcohol or drugs, being under house arrest, and/or not having contact with certain persons.
- In some regions of the country, accused persons who are released on bail may be subject to bail supervision by probation officers and/or electronic monitoring
- Accused persons who violate the conditions of release or who fail to appear in court at the designated time may have new charges filed against them for failing to comply.
o This offence carries a sentence of two years in jail if it is processed as an indictable offence.
171
- Remand refers to
accused individuals who have been charged and detained in custody and have either been denied bail, or have yet to appear before a judge, or are awaiting sentencing or the commencement of a custodial sentence
- s. All prisoners on remand are held in maximum-security facilities, regardless of the alleged offence and their criminal record, and have minimal access to programs and services
172
Security certificates
- A process whereby non-Canadian citizens who are deemed to be a threat to the security of the country can be held without charge for an indefinite period of lime.
173
Fitness to stand trial
- A fundamental principle of the common law is that the accused person must be fit to stand trial
- Accused persons who cannot understand the object and consequences of the proceedings because of mental disorder are unfit to stand trial. In other words, they are unable to instruct their counsel or even fully appreciate that they are on trial
174
- Section 2 of the Criminal Code states that an offender is unfit to stand trial when it is determined by the court that they are
o . unable on account of mental disorder to conduct a defence at any stage of proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
i. Understand the nature or object of the proceedings
ii. Understand the possible consequences of the proceedings, or
iii. Communicate with counsel
175
Plea Bargaining
- An agreement whereby an accused pleads guilty in exchange for the promise of a benefit.
- which involves discussions between the Crown prosecutor and the defence surrounding the charge(s) facing the accused, discussions of procedure, discussions of the sentence, and discussions of the facts of the alleged offence, all of which are designed to expedite the trial of the accused.4
- These discussions may result in a plea agreement, whereby the accused gives up the right to make the Crown prove the case at trial in exchange for the promise of a benefit
- For example, the Crown can promise the possibility of a lower sentence by withdrawing some charges; by reducing a charge to a lesser but included offence (that is, an offence that is similar but not as serious); by proceeding summarily rather than with an indictment; by asking the judge that multiple prison sentences run concurrently rather than consecutively; or by agreeing to a joint submission to the judge about sentencing.
- Note that once a plea agreement has been agreed to by the Crown and defence, it can only be repudiated in exceptional circumstances.
176
Access to the courtroom
- A key concept in Canadian criminal justice is the open court principle, which holds that, except in special circumstances, every stage of the court process must be open and accessible to the public.
177
- The right for an accused to have a trial by jury is set out in section ll (f) of the Charter of Rights and Freedoms, which states that any
person charged with an offence has the right "except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment."
178
- Jury trials are not available for
for summary conviction offences; nor, with a handful of exceptions, are they available in youth court
179
- Jury trials are actually quite
rare in the justice system, and most criminal matters are tried by judge alone.
180
- There are three important differences between trial by jury and trial by judge alone.
o First, in jury trials, the jury decides on the true facts and determines the person's guilt; in trials with a judge alone, the judge determines the law and the facts
o Second, in a jury trial, the judge makes a "charge to the jury," during which the judge instructs the jurors about the law that applies to the case.
o And, third, judges give reasons for their decisions.
181
Disclosure of evidence
- A key component of the prosecution of criminal cases is the disclosure of evidence.
- The court's ruling in R. v. Stinchcombe ([ 1991] 3 SCR 326) requires that the Crown give the defence lawyer access to all evidence that might be presented by the prosecution in a trial, especially any potentially exculpatory evidence (evidence that might indicate the accused did not commit the crime)
- This process is called disclosure of evidence or discovery and includes, among other materials, the names and addresses of persons the Crown intends to call as witnesses, the results of any examinations or tests on the accused, materials from wiretaps and surveillance, and the names of expert witnesses that the Crown intends to call.
- The failure to disclose evidence can trigger a Charter remedy because it impairs an accused person's right to make full answer and defence to the charges
o However, the disclosure requirement does not work in reverse: the defence is not obliged to disclose material to the prosecution
182
- Trials are actually quite
rare, occurring in only about 10 percent of criminal cases
o The majority of cases are resolved via plea bargaining or by the Crown counsel staying the proceedings or withdrawing the charges
183
- direct evidence vs. circumstantial evidence v vs. hearsay evidence
- direct evidence, as it is based on direct observation.
- circumstantial evidence in that it is not directly observed, but requires inferences to be drawn from the facts.
- There is also hearsay evidence, which is, "Evidence tliat is offered by a witness of which tl1ey do not have direct knowledge but, ratlier, tl,eir testimony is based on what others have said to them"
184
- The more common defences that are used in the criminal court process can be generally grouped into
1) "You've got the wrong person"; (2) the mental state of the accused at the time the alleged offence occurred; (3) justifications (or excuses) for having committed a criminal act; and (4) procedural defences.
185
The “you’ve got the wrong person” defence
- This defence strategy centres on one of two possibilities: that the police arrested the wrong person, or that the complainant fabricated the allegation, thus no crime was committed.
186
- The three most common defences that are centred on the mental state of the accused at the time of the alleged offence are
(1) mental disorder (not criminally responsible on account of mental disorder, or CRMD); (2) intoxication; and (3) automatism.
187
Not criminally responsible on account of mental disorder (NCRMD)
- Accused persons who are found fit to stand trial may use the defence of not criminally responsible on account of mental disorder ( nCRMD)
o This is contained in section 16 of the Criminal Code which states, " o person is criminally responsible for an act committed, or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong."
- The court has a number of options for persons determined to be NCRMD: detention in a hospital, a conditional discharge, or an absolute discharge
188
- e SCC defined automatism as
as "a state of impaired consciousness ... in which an individual, though capable of action, has no voluntary control over that action."
o Ex. Sleep walking man stabbed and killed mother found not guilty
189
Justifications: excuse-based defences
- Provocation
o The defence of provocation is often associated with claims of self-defence. Persons charged with murder can claim provocation to justify a reduction to the charge of manslaughter (here, provocation is a partial defence
- Compulsion/duress
- Consent
o The defence of consent is based on the argument that the complainant voluntarily agreed to engage in the activity in question.
o In 1992, the "no means no" law (amendments to the Criminal Code ) was enacted. If a sexual assault complainant expresses "by words or conduct, a lack of agreement to engage in the activity," consent to the activity is deemed not to have been obtained
- Necessity
- Battered woman syndrome
o Experienced by women who have suffered chronic and severe abuse, battered woman syndrome (BWS) is a condition characterized by feelings of social isolation, worthlessness, anxiety, depression, and low self-esteem
o "'Battered woman syndrome' is not a legal defence in itself, but rather is a psychiatric explanation of the mental state of an abused woman which can be relevant to understanding a battered woman's state of mind."
- Self-defence
- Defence of a dwelling
190
- The three essential attributes of a criminal jury are
( 1) impartiality, (2) competence, and (3) representativeness
191
Appeals
- Once an appeal has been launched, the incarcerated appellant may be released on bail until tl1e appeal is heard. The judge who hears this request considers, among other things, the prima facie merits of the appeal itself; this is to ensure that frivolous appeals cannot routinely be used to defer the serving of a prison sentence.
192
Compensation for crime victims
- including compensation for property offences by restitution paid by the offender upon an order by the court and through private insurance
o A court-ordered payment that the offender makes to the victim to compensate for loss of or damage to property.
193
- Section 718 of the Criminal Code (R.S.C. 1985, c. C-46) sets out the purpose and principles of sentencing:
o The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
to deter the offender and other persons from committing offences;
to separate offenders from society, where necessary;
to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
o promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
194
- An important principle in sentencing is proportionality
: the sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender
195
- As well, the principle of restraint is designed to ensure that the
sentence that is imposed is "a just and appropriate punishment, and nothing more"
196
Utilitarian goals of sentencing
- These goals focus on protecting the public from future crimes in the following ways:
o by discouraging potential Mr. Smiths and Mr. Joneses from crime (general deterrence);
o by discouraging Mr. Smith and Mr. Jones from doing it again (specific deterrence);
o by addressing the reasons why Mr. Smith and Mr. Jones did it (rehabilitation); and
o by keeping Mr. Smith and Mr. Jones in jail to protect society (incapacitation)
197
restorative goals of sentencing
- restorative justice is based on the principle that criminal behaviour injures not only victims but also communities and offenders.
- Restorative justice approaches also have a utilitarian function in that they are designed to protect the public from future criminal behaviour.
-
198
Sentencing options
- absolute discharge
- conditional discharge
- suspended sentence
- fine
- forfeiture
- prohibitions
-intermittent sentence
- probation
- conditional sentence
- imprisonment
- Absolute discharge: The offender is found guilty but technically not convicted. The offence will appear on the offender's criminal record for one year and then be removed.
- Conditional discharge: The offender is found guilty and released upon the condition that he or she comply with the conditions of a probation order that may range from one to three years. tt the offender fails to meet the conditions, he or she may be returned to court to be sentenced on the original charge. A conditional discharge remains on the offender's criminal record for three years after the completion of the probation order. A key requirement is that the imposition of this sentence not be contrary to the public interest.
- Suspended sentence: The offender is convicted of the offence, but the imposition of the sentence is suspended pending successful completion of a period of probation that may range from one to three years. A suspended sentence results in a criminal record.
o A sentencing option whereby the judge convicts the accused but technically gives no sentence and instead places the offender on probation, which, if successfully completed, results in no sentence being given.
- Fine: The offender must pay a specific amount of money within a specified time or face the prospect of imprisonment for fine default
- Forfeiture: Convicted offenders may be required to forfeit goods to the Crown
o or example, those found in possession of counterfeit money, narcotics, illegal pornography, hate propaganda, or some types of weapons or explosives may be required to hand over these seized goods
- prohibitions: These may be attached to a sentence and can include prohibition from driving, prohibition from attending places frequented by children, and prohibition from possessing firearms.
- Intermittent sentence: A custodial sentence served on a "part-time" basis (generally weekends, from Friday evening until Monday morning) and generally no more than 90 days in length.
- Probation: The offender is placed under supervision in the community for a specified period of time (maximum three years), must I fulfill general conditions, and may be required to adhere to or complete specific conditions (e.g., attend alcohol or drug counselling)
- Conditional sentence: The offender receives a term of confinement (less than two years) and is allowed to serve it in the community under the supervision of a probation officer, provided he or she meets certain specified conditions (although the offender is not on probation and may be imprisoned for violation of conditions).
- Imprisonment: The offender is sentenced to a period of confinement-to a provincial institution if the sentence or sentences total two years less a day, and to a federal correctional institution if the sentence or sentences total two years or more.
199
Judicial determination
- An order by the sentencing judge that the offender serve one-half of their sentence before being eligible to apply for parole.
- Offenders receiving judicial determination are more likely than other offenders to serve their entire sentence in confinement.
200
- Under the Criminal Code, persons convicted of murder are subject to
life imprisonment. This means that the offender is under sentence for life, although he or she may serve this sentence both in prison and upon release on parole in the community.
201
- The death penalty was abolished by Parliament in
1976 and replaced with a mandatory life sentence without possibility of parole for 25 years in cases of first-degree murder
202
Sentencing considerations
- aggravating factors
- mitigating factors
- case law precedent
- pre-sentence reports
- victim impact statements
- psychological assessments
- indigenous offenders
-black offenders
- Aggravating factors: These are facts about an offender and the offence that are considered negative and tend to increase the severity of a sentence (e.g., violence, violation of a position of authority).
- Mitigating factors: These are facts about the offender and the offence that may decrease the severity of a sentence (e.g., being Indigenous, being addicted).
- Case law precedent: Judges will consider sentencing decisions in previous, similar cases. A general principle is that there should be similar sentences in similar cases.
- Pre-sentence reports (PSRs): The PSR, prepared by probation officers, presents information on the offender's background, present situation, and risk/needs. It also sets out options for sentencing that the judge will consider.
- Victim impact statements: These contain information on the harm done to the victim (psychological and physical) as well as the consequences of the victimization.
- Psychological assessments: These are completed on offenders and address the mental state and treatment needs of the offender
- Indigenous offenders: Section 718.2(e) requires judges to consider alternatives to incarceration for Indigenous offenders
- Black offenders: Defence lawyers are increasingly asking for cultural assessments to be prepared on black offenders prior to sentencing.
203
- Section 752 of the Criminal Code contains procedures and criteria for declaring someone a "dangerous offender."
- That section defines a dangerous offender (DO) as a person who is given an indeterminate sentence upon conviction for a particularly violent crime and/or who has demonstrated a pattern of committing serious violent offences.
- A person can be declared a DO by a sentencing judge only if the Crown makes a formal application after conviction but before sentencing.
204
- Two elements are considered in making this determination- danger5ous offender
past offence history, and the likelihood of serious offences in the future.
o The first threshold is that the current offences of conviction must involve at least one "serious personal injury offence" -that is, an indictable offence for which the possible sentence is at least 10 years and which involved the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person, or conduct inflicting or likely to inflict severe psychological damage on another person.
o The second threshold involves past behaviour of the offender, which reflects a pattern of persistent, aggressive behaviour; a failure to control sexual impulses; and other behaviour which indicates that the offenders have difficulty controlling their behaviour
205
- Circle sentencing is a
restorative justice strategy that involves collaboration and con sensual decision-making by community residents, the victim, the offender, and justice system personnel to resolve conflicts and sanction offenders
