Week 10: Criminal Courts and Prosecutions of Criminal Cases Flashcards
What is the contentious history of solitary confinement practices in Canada?
Concern prompted by suicide of Edward Snowshoe who spent 162 days in solitary confinement
ONCA recently ruled that over 15 days in solitary constitutes cruel and unusual punishment
- legal defeat of correctional service Canada’s long-standing practice
- first time Canadian court imposed a limit
What are the primary decisions made when delegating a case to a court? What does the pre-trial process influence?
Shaped first by whether crime is summary (less severe, no injury), or indictable (more severe, right to injury)
- if summary; prov court
- If indictable: accused has options (prov judge, sup judge, sup court judge and jury)
Pretrial process: shape context in which police crown, defense and judge operate (90% cases do not to trial)
What are the three circumstances in which a release may not occur for a charged individual?
- Serious indictable offence
- Reasonable risk accused won’t appear in court
- In public interest to detain (id
What are the regulations around opposing the release of a prisoner?
What happens upon release/trying to be released?
If crown opposes release of accused, must demonstrate why at a show cause hearing - can cite prior convictions, other charges
Asked to forfeit money to be released (if they fail to appear)
If released, conditions will likely be attached - trends of increasing conditions (setting up for failure)
What is pre-trial detention (remand)? what are the costs of remand vs sentence/the % of people in provincial jails?
Remand - refers to accused who have been charged and detained in custody and have either been denied bail or have yet to appear before judge or are awaiting sentencing
- # of people in remand has tripled over 30 years
- nearly 60% of people in provincial jails
- remand costs 80, 000 vs. sentenced costs 40, 000 (supervised bail much cheaper still)
How are crown prosecutors governed and appointed in Canada? Why do we say they have a dual-role?
Work under authority of provincial AG (Doug Downey)
Unlike US - appointed not elected, have no separate investigatory arm (rely exclusively on police investigation)
Play a quasi-traditional role in special relation to the court (minister of justice rather than partisan advocate)
Dual role - advocates trying to convict guilty but also responsible for administering justice and ensuring that innocent people are not convicted
What are the jurisdictional difference between crown prosecutor powers? In BC specifically?
BC, Quebec, NB and CP - decide whether criminal prosecutions should be initiated
- in all other Canadian jurisdictions this is decided by police, also the decision whether to continue a prosecution or ask that charges be stayed or withdrawn is made by CP
In BC - sole function of some crown prosecutors is to review investigative reports to decide whether charges recommended by police should be approved (only approve charges id evidence is available)
- substantial likelihood of conviction
- it is public interest that a prosecution should be undertaken
What are the roles of US CP?
CP decide what charges should be laid, as well as what/who should be investigated
- more power than Canadian counterparts, but also tend to see role as more adversarial
What are the impermissible tactics for CPs?
- Can’t express personal opinions regarding guilt of an accused or credibility of witness
- Prosecutors advocacy must be more restrained than defense counsel or lawyers in civil proceedings
- Can’t communicate directly with persons who are represented by counsel, except with counsel’s consent
- Wield power carefully when arrangements made on accomplice’s sentence are deferred until after they testify
What are the three ways in which crown prosecutors are held accountable for their actions?
- Prosecutors report to AG and can be terminated
- Most ags are satisfied to issue non-binding policy directives (reaffirms it is not meant to fetter prosecutor’s direction, encourages prosecutor to try domestic violence cases) - Prosecutor’s liability in civil suits for monetary damages
- Until 1989 were generally immune from civil actions (Nelles case changed this - but still not available to those who are convicted) - Judicial review
- Most important form of accountability lies in discretion trial judges to control the crim processes over which they preside
What changes have occurred in terms of the prosecution of wife batterers?
Prosecutorial power was reformed in the 1980s to limit prosecutor discretion in trying wife batterers (ie: to encourage such prosecutions to proceed)
- difficult when we have incomplete data and proposed policy is value laden (must be part of larger systemic and social reforms)
What does David Vanek argue about plea bargaining and why it happens?
CP should decide on course of action based on their own independent assessment and not on the basis of a bargain or deal outside of court with defense
- this happens due to lack of funding, lack of judges and lawyers or heavy caseloads: not based on trial in open court, but arrangement made outside of court
When was the legal right to council recognized? what does the textbook say about the control mechanisms for defense lawyers?
Legal right to counsel was established in 1836
Text: these mechanisms have little effect
How is defense defined in the court? What does this contrast with?
Traditional: said to have a duty to the court to see that justice is done, cannot suppress or distort truth on behalf of a client
- seen as “officers of the court” but contrasted with the reality of the role of defense in adversarial trial to represent their client resolutely and honorably
What are the three ways in which an excess in advocacy can be controlled?
- Direct judicial intervention (common law, trial judge can find someone in contempt of court)
- Indirect judicial intervention (procedural and evidentiary rulings)
- Disciplinary sanctions imposed by law societies
