week 8 (test #2) Flashcards
What are the 3 different streams an offence can go once it’s reported (what are the three options for the police officer)
- Appearance notice (promise to appear)
- large % of results
- maybe no criminal record
- afterwards swear the information - Arrest without warrant
- would take you into custody and then decide to still give an appearance notice or keep you in custody
- swear the information first and then lead to a bail hearing - Information Sworn (JJP)
- in this case the suspect can’t be found so they would swear the information first - JP then issues a warrant or a summons
- if warrant then we’d have a bail hearing or release if the warrant is endorsed
what is an endorsed warrant?
a warrant that has been signed by a justice of the peace, authorizing the release of a person arrested on that warrant
What is the offence flow from the offence reported to the different trial options?
offence reported > information sworn > first appearance >
If indictable > preliminary hearing > superior w jury OR superior speedy trial (judge alone) OR provincial court (judge alone)
If summary > summary trial (prov, judge alone)
What are the 3 different types of offences?
Summary offence: less serious offence that is triable before a justice of the peace or judge > maximum penalty = fine less than $5000 or 6 months imprisonment
Indictable offence: a more serious offence > maximum penalty = 14yr - life imprisonment
Hybrid (elective) offence: *very common, can proceed summarily or by indictment - subject to crown discretion > the accused can choose between trial by a provincial court judge, superior court judge, or superior court with jury
*prosecutor can put pressure on a plea agreement (if you plead guilty to a lesser charge we’ll go summary)
What do police do with an Information once the charge is laid
what can the crown then decide?
- the police lay the charge and outline the alleged offence in the information
- swear the information before a justice of the peace > each offence is a separate ‘count’
- the crown can still decide whether to go through with the charge or stay the charge
when deciding to release someone or not, what is the presumption and then what are the exceptions to this?
there is a presumption of release after arrest (notion that everyone has the right to be free) unless,
- it’s a serious indictable offence (>5yr imprisonment)
- the accused is unlikely to appear in court
- public interest - need to secure identity, evidence, or prevent the continuation of new offence
What is the Freeman on the land movement?
what problem did this result in?
- conspiracy theorists who imply they are only bound by statute laws if they consent to those laws
- trying to separate themselves from state power > destroy all identification and license plates and such
- at one point there were a bunch of people in custody from freeman on the land because none of them could be identified
(example of how securing identification can be a problem)
What are the different options the police have when releasing an accused? what kinds of things do they have to consider?
- might release them on their ‘own recognizance’ - like a PTA but with more conditions
- summons (after charges are laid)
- appearance notice (before charges are laid)
- promise-to-appear (PTA) - less formal
have to consider factors like credibility, time/cost, workload, seriousness, political influence, employment, safe housing, education, etc.
- might even consider if they want overtime pay or if they want to leave for their vacay
*burning question for them is to determine what the risks are to release the accused
What is a judicial interim release (IRG) and what are the two different kinds of these hearings?
Justice of the pease releases you (basically just bail)
> bail (cash) and/or a surety (someone who has to report them if they breach and would pay a fine if they fail to report) > plus other conditions
Show cause hearing > crown is opposed to the release - prosecution argues this
Reverse Onus > accused must ‘show cause’ why release is justified
how common are cash bails in canada?
- very rare > Obviously discriminatory to people in poverty
- so bails are typically promise bails → have to show something that you’re good for the money
- once it involves a third party, it becomes a surety
- an involve other conditions → no alcohol, no drugs, etc.
What is remand? dual status? what percent of the MB provincial custody poplation is remanded? what are some of the complications/characteristics of the remand process?
Remand = a status describing the pre-trial / pre-deposition detention of accused persons
Dual status = a convicted person is in custody while also on remand status
- about 70% of the MB provincial custody population is remanded > this percent has been growing exponentially
- long remands partly due to case delays
- disclosure requirements > inmate can request all of their documents at any time
- programming limitations (not guilty yet) > can offer voluntary programs but can’t mandate anything
- breaching cycle > break conditions of bail and end up in remand again and again
- complex case files
- remand incentives > double credit for time (2 for 1)
What is a preliminary hearing? who determines it? What kind of burden is applied? what kinds of things can happen during these hearings
Determines whether there is sufficient evidence to proceed to trial (judge and crown determining this)
Prima facie burden (at first sight) > relatively low standard of proof - prosecution just needs to present enough evidence to establish a case
- publication bans or assessments may be introduced
- may be skipped in exceptional circumstances or waived by the accused
- crown could drop certain charges or accused could be let go
- plea negotiations can happen during this phase
- it’s very expensive to go to trial so this is an important step
- also have to assess whether the accused is fit for trials
What is a stay of proceedings?
When the Crown suspends a court proceeding after commencement, due to:
- case screening (ex. insufficient evidence)
- as part of a plea agreement
- case flaws, ex. low chance of success
- if there’s an error in the police report they have to correct it
An assessment of the accused can be ordered by the court to determine if the accused is fit to go through trial. what does fitness mean?
They must be fit to address the charges
> must understand the proceedings and consequences
> must be able to communicate with counsel (this isn’t always the most obvious)
How does ‘unfit’ differ from not criminally responsible?
Unfit = you are unable to be TRIED due to a mental disorder and treatment may be ordered > doesn’t mean they were unfit during the actual crime > trial put on hold and maybe placed in a psychiatric facility until they’re fit for trial (charges don’t go away)
NCR = accused was mentally disordered at the time of the act - unable to form clear intent during the crime > in this case the charges go away
What might an NCR accused have to do? who reviewed Vince Li’s case?
may be subjected to hospitalization and a monitoring process (ex. mental health review board - they reviewed Vince Li’s case and granted him unsupervised outings)
what percent of cases have a judge and jury?
less than 10% of cases
What are 3 different kinds of evidences presented in court?
Direct evidence - direct observation of an event
Circumstantial evidence (inference to the best explanation) - indirect observation, from which a reasonable inference can be made (tends to be more shaky and witnesses come under attack)
Hearsay evidence - when statements made outside of a trial are used to prove the truth of another statement > this is rarely permitted in court as a form of ‘second-hand’ evidence or rumour
What is the significance of Vince Li’s case?
- he was found unfit and NCR for a brutal murder
- was discharged but sent to a mental facility and eventually let out
- Public perception concerns → does this result look like it’s achieving justice?
- Lots of case law generated from this case
What is an insufficient evidence motion?
The onus is on the prosecution to present their evidence to the judge.
Then the defence can file an insufficient evidence motion (can be pre-trial or during trial) that suggests to the judge that the prosecution’s case is not strong enough
What are 4 different defence strategies that can be used in court?
WRONG PERSON is accused (ex. alibis, fabricated allegation, etc.)
> might get a bit shady by trying to cast suspicion on someone else and accuse them of the offence
MENTAL STATE of the accused at the time of the offence > intoxication, mental disorder, automatism (impaired consciousness), etc.
JUSTIFICATION for the offence > provocation, defensive behaviour, consent, syndrome (duress), etc. - like muddying the water - introducing mitigating factors
PROCEDURAL problems (technicalities) > the law is invalid, the prosecution is improper, evidence is not admissible, or rights unfairly violated
What are some examples of how economic status, level of education, and coercion play a role in court outcomes?
- legal aid > low pay and quality differences
- lengthy remands > can present subtle pressure to just plead out
- plea bargaining - necessary but concealed
What is the open court principle? what are some exceptions?
Principle is that every stage of the court process must be open and accessible to the public
exceptions:
- youth matters
- problem-solving courts
- informants
- victim protection
*More and more courtrooms are being closed
Jurors must be ______, ________, and ________
impartial
competent
representative (peers)
