The Courts

Question 1

What did MacFarlane find about self representation?

Answer 1

Occured in 80% of all family cases, and 60% of all civil court cases.

Question 2

Why do people choose self representation?

Answer 2

Because of costs associated with hiring lawyers, insufficient legal aid, and the belief that free info is available online.

Question 3

When is legal aid available and what happens if it fails?

Answer 3

Available only in cases where there is a liklihood of imprisonment or the loss of livelihood. When applications fail, people are consigned to assistance from duty counsel, student legal aid clinics, or community legal clinics.

Question 4

What is the “burden on the court” hypothesis?

Answer 4

Suggests that Canadians who self represent place a burden on the court system because: the prosecution and judges are forced to assist the defendant, they slow down the court process.

Question 5

What is the burden on the accused hypothesis?

Answer 5

Put forward by Nuffield, Meredith, and Svoboda. Claimed that the burden was not on the court, but was in fact on the accused. Accused is more likely to plead guilty earlier, have fewer, shorter court appearances during self representation.

Question 6

How many different court systems are there in Canada?

Answer 6

14 (13 provincial/territorial, 1 federal).

Question 7

What are specialized courts?

Answer 7

Problem-solving courts: focus on underlying problems, interagency, accountability. Problems with non-compliance, conditions imposed by the courts, non-completion of programs.

Question 8

How does the SCC handle cases?

Answer 8

About 65-80 cases per year. Half are hand picked. Creates a criminal justice policy by: Judicial review (concluding whether a law is constitutional or not), their authority to intepret the law.

Question 9

What are the steps in an investigation and trial?

Answer 9

Investigation, laying a charge, deciding whether to prosecute, requiring the accused to attend court, enter a plea, and bail, type of offences, choice of trial and election by the accused (depending on charges)

Question 10

Some more steps in investigation and trial?

Answer 10

Preliminary inquiry or hearing, plea negotiation, trial, verdict, sentencing, appeal.

Question 11

What did Ericson and Baranek find about guilty pleas?

Answer 11

91/131 plead guilty. 21 plead not, 15 were found guilty with at least 1 charge, 6 were aqcuitted, 17 had their charges dropped or dismissed, 2 did not appear in court.

Question 12

What is the role of the defence lawyer?

Answer 12

Ensure that their clients rights are protected-examine evidence to assess the strength of the crowns case, explain to their clients what is happening at each stage, hire experts to investigate, obtain second opinions with regards to evidence.

Question 13

What is the duty of the Crown Prosecutor?

Answer 13

Main duty is to enforce the law and maintain justice. Must follow Stinchcombe (1991), face role conflict because there is pressure to successfully convict. Want to maintain administrative credibility and keep the acquittal rate low.

Question 14

How do Crown Prosecutors face case overload?

Answer 14

They prosecute around 6-10 trials per day. They can be held civilly liable if their decisions are deemed malicious or they have abused authority.

Question 15

What is the duty of judges?

Answer 15

Expected to uphold the rights of the accused and arbitrate any disputes between a prosecutor and defense lawyer. Also triers of fact and decide the length and severity of punishment.

Question 16

Are jury trials popular in Canada?

Answer 16

No they’re relatively rare.

Question 17

How do pleas work?

Answer 17

During the preliminary hearing of indictable offences, the accused enters a general plea. About 90% of the accused enter a guilty plea before trial or when they appear in a lower court for the first time.

Question 18

Is the accused more likely to plead guilty or not guilty during indictable offences?

Answer 18

Not guilty-trial date is then set.

Question 19

What is a preliminary hearing?

Answer 19

To ascertain whether there exists enough evidence for a case to proceed, to protect the accused from an unnecessary trial. Crown does not need to present all of their evidence at this stage, many accused forego the preliminary hearing.

Question 20

How do prosecutors decide whether they will go forward with a case or not?

Answer 20

Their belief in the guilt of the accused, the seriousness of a crime, the record of the accused, witnesses, credibility of the victims and witnesses, whether the accused is involved in a more serious trial.

Question 21

What is plea bargaining?

Answer 21

Any agreement between the accused to plead guilty for some benefit. Improve administrative efficiency for courts, lower costs of prosecution, permit prosecution to spend more time on important cases.

Question 22

What are some types of plea bargaining?

Answer 22

Charge bargaining, sentence bargaining, procedural bargaining, fact bargaining, label bargaining.

Question 23

What are some advantages and disadvantages of plea bargaining?

Answer 23

Advantages-Efficiency gains, cost reduction, workload reductions, reduction in victim trauma
Disadvantages-Unfair and hidden process,too much leniency, reduces CJS credibility, avoids due process standards, innocent people may feel pressure to bargain.

Question 24

What are some important sections of the Canadian charter?

Answer 24

Section 7- Individual rights are protected
Section 8-Individuals have a right to a reasonable expectation of privacy
Section 9- People cannot be arbitrarily detained
Section 10- Rights of the accused when detained (habeus corpus-unlawful detention assessment).
Section 11- Indicates the rights people have when charged with an offence (r.v. Askov)
Section 12- Stipulates fair punishment
Section 13- Freedom from self-incrimination
Section 14- Right to an intepreter
Section 15- Equality rights
Section 24- Remedies for violations of the above rights.

Question 25

What has the SCC ruled with regards to the principles of fundamental justice and the charter?

Answer 25

PFJ are broader than the rights defined in the charter. Has ruled in four areas including the right to silence, disclosure, right to make a full answer and defence, and the detention of those found not guilty by reason of insanity.

Question 26

How does the CJS define crime?

Answer 26

Actions that are harmful, prohibited, can be prosecuted in a formal environment, and for which punishment can be handed out.

Question 27

What is corpus delecti?

Answer 27

“The body of crime”

Question 28

What must the state prove in order to convict (corpus delecti)

Answer 28

Legality, mens rea, actus reus, concurrence of the latter 2, harm, causation, punishment .

Question 29

What are some examples of excuse defences?

Answer 29

Age, mental disorder, automatism, mistake of fact, mistake of law.

Question 30

What are some examples of justification defences?

Answer 30

Duress, necessity, self-defence, provocation, entrapment.

Question 31

What are some indictable offenses known as?

Answer 31

Less serious-known as absolute jurisdiction indictable offences
Most serious-Supreme court exclusive indictable offenses.

Question 32

When does someone have a right to a jury trial?

Answer 32

Accused has the right to a jury trial for a crime that carries a five year term of imprisonment or more. (electable offences). The jury generally does not have input into the sentence of the convicted

Question 33

How does jury selection work?

Answer 33

A source list is drawn up, qualified persons are identified, and summoned to appear in court. From this array, the court selects those deemed impartial.

Question 34

What are some legal rights the accused has?

Answer 34

The right to be presumed innocent until proven guilty, the right to confront the accuser. The right to a speedy trial (section 7, r.v. askov) most cases are heard within a year.

Question 35

What is thje “open courts principle?”

Answer 35

Right to a public trial. But, bans may take place in sexual assault cases, youth cases, and cases where fairness of trials is at risk.

Question 36

How does a criminal trial start?

Answer 36

Charges are read, prosecution makes an opening statement- impartial, no personal opinions, all witnesses mentioned must appear, evidence not included cannot be mentioned.

Question 37

How are witnesses called upon in court?

Answer 37

Prosecution may call no more than 5 expert witnesses without approval of judge. Defence has right to cross-examine.

Question 38

How are closing arguments made?

Answer 38

If the defence presents evidence or the defendent testifies, then the defence must address the jury first. If not, the prosecution addresses the jury first.

Question 39

How does the judge charge the jury?

Answer 39

Instructs them on relevant principles of the law after all statements have been made, these include;

• the definition of the crime
• the presumption of innocence
• the burden of proof
• if reasonable doubt exists, then the jury must acquit.

Question 40

How do appeals work in court?

Answer 40

Both defendant and prosecution can appeal a verdict. Defence can appeal the sentence, the conviction, or being found mentally unfit to stand trial. Accused may appeal on a point of law, a question of fact, or the length of sentence (indictable offences).

Question 41

What are peremptory challenges?

Answer 41

Prosecution choosing to have someone leave the jury pool without cause.