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POA Test 2
Fichas del conjunto (106)
- 1What are the 6 steps in preparing to defend a POA case? (6)1. interview the client
2. request disclosure from the Crown
3. obtain all relevant documents
4. research and investigate
5. conduct a second interview with client
6. attend court (motion, trial, guilty plea) - 2What must you do when interviewing your client for the first time?Realize that they are likely anxious and stressed.
Explain all aspects of the charge and the process
Present them their options
Make recommendations
Receive complete instructions
Make sure they bring all relevant documents (drivers license, charging document, correspondence) - 3What do you ask of your client during the intake interview?ask them to give you detailed notes of hat they remember
You can use this to refresh their memory later - 4Charging Documents Part I (2) Part II Part IIIPart I- certificate of offence or summons
Part II- parking ticket
Part III- information - 5Your client gives you the charging document. What is your first step?Check for fatal and non fatal errors. If there are errors you can make a motion to quash the charge.
- 6There is an error on the charging document. Most times where can you look to for amendment? What is required?POA s.34(1)
You need the court's approval - 7Time Frames of Service Part I Part II Part III exception applies to ?Part I- 30 days
Part II- at the time of the offence
Part III- within 6 months
Exception applies to CAIA and is 3 years - 8padding the record / why pad the recordwhen you give your explanation for requesting an adjournment. Padding the record protects you from having a s.11b application against you if the trial doesn't happen within the R v Jordan time frame guidelines
- 9the most common reason for trial delay isdelay in giving disclosure
- 10s. 11b of the Charter/ corresponding case lawyour right to a trial within a reasonable time
R v Jordan- SCC 2016, 18 months to trial from date of offense in POA and 30 months in Superior Court after preliminary inquiry - 11When presenting your clients options to them what must you tell them .what their options are
explain the possible outcomes
explain risks associated with each option
male recommendations
your client ultimately makes the decision - 12What are your client;s options for a Part I Offence NoticePay out of court
Early resolution meeting with prosecutor
plea guilty
trial (notice of intention to dispute charge)
fail to respond and be deemed not to dispute - 13What are your clients options for a Part I Summons (3) What distinguished about a summons? What happens if your client does not attend?1. enter a guilty plea
2. negotiate with prosecutor
3. have a trial
the court date is on the front of the summons
if you dont attend a warrant can be issued for your arrest - 14What are your clients options for a Part II parking ticket? What happens if your client fails to respond?1. pay out of court
2. notice of intention to dispute charge
3. informal negotiations
Failure to respond- after 15 days a notice of impending conviction comes in the mail and after 15 more days a conviction is entered - 15What is a retainer agreement, what must it contain?The fees, disbursements, and HST to be paid by the client. Must outline the services that the paralegal will proved and best practice to include the form on the LSO wen site
- 16Paralegal Rules-- Guideline 6(4)1. this rule is about how a paralegal can provide more effective service
2. Provide more effective service through managing client expectations and being clear about what client expects at the beginning of retainer and throughout
3. draft a thorough and complete retainer agreement - 17Monetary RetainerPOA- flat fee usually
collected BEFORE paralegal begins work on the file
Must be deposited into a trust account
cant be transferred until work is completed and statement of account is sent to client - 18POA: a young person is _____________Is or APPEARS to be 12 years of age but under 16
- 19Your client is 15 and commints a provincial offense related to driving. What will happen when your client is of legal age to get a licensea drivers license number will be issued to your client before they are of legal age and all charges committed before age 16 will apply to their future drivers license
- 20What is the cut off age to be considered a young person in POA15
- 21POA regarding young persons s 95 s 96s. 95 must be summons to young person
s. 96 notice to parent plus copy of summons - 22What must a young person do regarding summons. What happens if they fail to do thisMust attend court because summons issued to young persons do not have a pay out of court option
If they fail to appear in court court can be adjourned or an arrest warrant can be issued - 23Contempt Key points + what sectionPart V s 90-91
- show cause hearing (about why they should or should not be punished)
- involves conduct in the body of the court
-can be against anyone, like a lawyer or paralegal - 24Part VIII of POA section 24regarding reasonable and probable grounds to have an arrest warrant issued
remains in force until warrant is executed by a police officer
arrested and brought to JP
must show the defendant the reasons and warrant
only applies to defendants in ontario - 25arrest without a warrantif officer has reasonable and probable grounds to believe a warrant already in effect (they dont have the physical warrant on them but there is reasonable and probable grounds that one exists)
not always necessary for officer to have warrant - 26Civilian Arrest s 145 POAAny person may arrest a person who he or she believes has committed an offense and is escaping from and FRESHLY PURSUED BY A POLICE OFFICER
- 27interim release POA s 149 Exceptionsusually released once served with a summons by an officer UNLESS
the officer needs to confirm identity, officer needs to secure or preserve evidence, prevent a further offense from happening - 28Bail Hearingif not released by arresting officer must be brought before a justice within 24 hours
can plead guilty or go to trial
JP can release on an undertaking UNLESS the prosecutor can show cause why it is necessary for the defendant to be detained
can release with recognizzance - 29* What must the paralegal do prior to a bail hearingspeak to prosecutor and request disclosure about the offence, reasons for detainment, need for surety
- 30R v FekreCould have been charged with dangerous operation of a motor vehicle under the criminal code OR careless driving under the highway traffic act
Facts: victim walking her dog on Dundas in TO, defendant looked down to reach a bottle of water, he said that he took his eyes off the road for a second, not speeding or impaired, victim was killed
ISSUE- was it dangerous driving or a momentary lapse in judgement OR careless driving (not driving with due care and attention)
DECISION: careless driving (momentary inattention) - 31what are the 4 types of procedural defenses1. errors in the charging document
2. late service
3. lack of disclosure
4. limitation period expired - 32how do you look for errors in the charging document according to POA s 34(4) (5)1. what evidence has been given
2. circumstances of the case
3. has the defendant been misled
4. has the defendant been prejudiced
5. is the defendant able to make a full answer and defence - 33How can you tell if there is an error in the charging document.missing date, date of service, name of defendant, missing wehre offence took place, missing officers signature
- 34If the limitation period is not indicated then what do you assume?That the limitation period applies for Part III stream and is 6 months by default
- 35What are the part of the LLALLA
O Reg 719 - 36What documents must be disclosed and filed with the court? (3) ***1. exhibit one- notice under evidence act regarding the filing of documents
2. exhibit two- certified documents showing corporation and listing directors (ties defendant to the bar) (this is so you can charge all directors of the organization with the offense because they are all equally as responsible)
3. exhibit 3- copy of liquor license - 37O Reg 389/91 s 15(1) ***a permit holder shall not adulterate liquor by adding any substance to it or keep for sale or sell adulterated liquor
- 38A licensee may not represent a party without having firstreviewed disclosure
- 39R v Stinchcombe 1991lawyer charged with theft and fraud
must provide defence with all evidence that COULD POSSIBLY BE RELEVANT whether the crown plans to call that evidence or not (even if it could hurt the crowns case) - 40boiler plate requesta nonsensical request for disclosure
- 41What is a legal duty of the crownto disclose evidence to the defense
- 42how does s 7 of charter relate to disclosures 7 is the right to full answer and defense, the crown has to provide the defense with all relevant information but the defense is not obliged to do the same
- 43what are the 5 disclosure expectations1. investigators notes
2. copy of accident report
3. witness statements
4. photos of vehicle
5. body cam video - 44how do you request disclosurewith correct court form
in writing (letter)
indicate how many times you have requested
indicate the name of defendant, date of next court date, court location, charge, date of offence, offence number, and officer name - 45what to consider before filing a relevancy application for additional disclosurehow is it going to help you defend your client
is it critical to your ability to make a full answer and defense
if i dont receive it will my client be prejudiced - 46when do you ask for additional disclosureif something wasnt included in the disclosure package that you think is relevant
if you need clarification on part of the disclosure (like if the officers notes were illegible or an unclear photo) - 47additional disclosure request letter must include **the date in which you received the initial disclosure
- 48what to ask for in disclosure for offences such as failing to obey stop signs, disobey stop sign, red light fail to stoprequest officers notes
photo or video evidence if it exists
witness statements if there were other witnesses aside from the officer - 49what do you ask for in disclosure for speeding offences (4)1. officers notes
2. copy of the testing procedures from the training manual related to the device that the officer used at the time ( to test how the officer decided that your client was speeding)
3. copy of maintenance records if available
4. if a pace, indication of calibration of speedometer - 50how do you file and serve a request for disclosure (3)there are 3 ways
1. fax it to the prosecutors office
2. one copy via registered mail to prosecutors office (retain proof of delivery, one copy for you to file with charter application if necessary)
3. (preferred method) file it personally at the prosecutors office (get clerk to stamp it so you have proof that you filed it with the prosecutor) - 51trial or hearing structure (6)1. opening statement
2. evidence (direct examination/ examination in chief, cross examination, re examination)
3. submissions (can only refer to evidence, CANNOT INTRODUCE NEW EVIDENCE)
4 reasons for judgement - make the court spell out why they have decided what they did, case law referred to and evidence they heard (this will be what you use to appeal if you choose to appeal)
5. sentencing- legal argument, look to case law, can bring in character witnesses
6. ruling on sentence- the court must tell you hwy they came to that decision - 52prima facie table tells you _______ whereas a proof chart tells me _____________prima facie table - who may be able to give me what
proof chart - who is going to give me what - 53what is covered in a proof chartcharge, elements, witnesses, documents
- 54book of authorities1. law being relied upon filed with the court and defense in advance
must include the cases on point that support your theory of the case and go against your theory
table of contents and tabs included - 55qualifying an officerestablish their employer and that they were working on the sate of the offence, ask them if they made notes, add if they have changed the notes since, for what purpose are they referring to their notes, ask if they have an independent recollection of the events aside from the notes, ask the court to permit, continue with giving the evidence
- 56What is a Jenkins caution?The Crown is required to indicate that they are seeking jail and how much before commencing
After cautioned, the court can decide to proceed to an ex parte trial, issue a bench summons, adjourn the hearing and issue a warrant for their arrest - 57True or false, in a PART I the disclosure is automaticnegative, you must request for the disclosure in writing
- 58when must disclosure be providedas early as possible
- 59In offences such as failing to obey signs, disobey stop signs, red light fail to stop what must you request in disclosurethe officer's notes, photo evidence that the crown intends to use at trial
- 60what is a will sayis a statement taken by the officer at length of time after the event. it can be taken in court that very day but must be disclosed to the defense
- 61If a collision is involved what do you need to ask for in disclosureofficer's notes
witness statements - 62How do you file and serve a disclosure request?fax/ scan to prosecutors office
make two copies, send one via registered mail to prosecutors office
attend the courthouse with two copies hand them to the clerk at the prosecutors office - 63You have already received disclosure. Your client tells you that there was a second officer at the scene. What do you do>request additional disclosure
- 64what are the 4 types of pleasearly pleas
pleas on trial day
agreed statement of facts
joint submission on penalty - 65If you plead guilty early what is likely to happenyou might get a lesser sentence
- 66what shortens the proceeding?agreed statement of facts
- 67T/F in an agreed statement of facts the parties agree to all of the factsfalse, the do not agree to all the facts
- 684 main points for a joint submission on penalty1. discussed prior to the plea being entered
2. both parties must agree to it
3. used when the defense and crown agree that there could be triable issues
4. both parties believe that the penalty is reasonable - 69When should the JP jump a joint submissionwhen the submission is contrary to the public interest and would bring the administration of justice into disrepute
- 70What are 8 possible sentencing optionsfine
incarceration
probation
impound the vehicle
restitution
costs
suspended sentence
creative sentencing - 71R v Dosikthe trial judge has the discretion to impose a sentence other than the set fine as set fine is statutorily reserved for those cases which do not go to trial or for those with mitigating factors
Ex. relief against a minimum penalty if the convicted cant afford it - 72If there is no provision for the sentencinf range what do you look toPOA s 61 general penalties
- 73What is the fundemental purpose of sentencing and where can you find thisspecific and general deterrence
s. 718 - 74Sentencing Goalsdenounce unlawful conduct
deterrence
separate offenders from society
reparations
sense of responsibility in offenders - 75A sentence must be _________________ and ______________a sentence must be PROPORTIONATE TO THE GRAVITY OF THE OFFENSE and THE DEGREE OF RESPONSIBILITY OF THE OFFENDER
- 76GENERAL DETERRENCEmessage to the general public
- 77specific deterrencemessage to the defendant
- 78what must the court always consider in sentencing (4)general deterrence
specific deterrence
rehabilitation
public safety - 79what is included in a pre sentencing reportbackground
family
education
employment record
physical and mental health
motivations - 80How does a pre sentencing report come aboutit is ordered by the court or requested by a paralegal
- 81when is a pre sentencing report usually neededserious offence
if incarceration is involved - 82who prepares a pre sentencing reportprobation officer
- 83who goes first in a submission on sentence and what do they dothe prosecution
ask for what they think is a reasonable sentence and why (give theri reasons) - 84what is the submissions on sentence order of procedurescrown goes first
defense responds
crown can reply - 85POA Act s 139(1)part of the appeal process where one applies for costs, usually in the case of malicious prosecution or the defense will threaten this if they dont receive disclosure promptly
- 86according to the criminal code section 722(1) what must the court doconsider victim impact statement
- 87definition of victimperson who suffered loss as a result of the offence
- 88can victims suggest sentences in their victim impact statementsnegative
- 89what are examples of aggravating factors (5)criminal record
plea on a trial date
lack of remorse
recently convicted of a similar offense
disrespectful to the court process - 905 examples of mitigating factorsoutstanding fines paid
attended every court apppearance
polite and cooperative with officer
came to sentencing without needing a warrant issued
completed rehab
responsible for children - 91direct examination ___________________paints the picture
- 92talk a little bit about direct examinationestablish the facts
be well prepared
never ask a question you dpnt already know the answer to - 93cross examination ___________________erases the picture
- 94cross examinationquestion opponents witness
to tesst veracity and credibility of witness
to obtain evidence not covered by opponent in direct examination
dont have to cross examine it is a strategy - 95re examination _______________adds colour and clarity
- 96re examinationcant introduce new facts
witness given the chance to explain and clarify
explain evidence iliccited in cross examination
cant be used to make your witness look credible after cross
right to re examine is not absolute - 97what is required for exhibitsmust be qualified
the author of the exhibit must be present so they can be cross examined on the content - 98steps to introducing an exhibitestablish context by steering the direct examination to the facts that the exhibit relates to
set up the exhibit
show the other side - 99submissionsreview all evidence and law that you want to draw attention to
cant present new evidence
address the guilt of the accused beyond a reasonable doubt - 100the person who calls the evidence ______ goes first in submissionslast
- 101the person who goes _________ gets to make a reply once opposing counsel finishes their submissionsfirst
- 102what case is always referred to in submissionsr v wd
- 103R v WD significance1. if the judge believes the evidence of the accused they must acquit
2. if the judge does not believe the testimony of the accused you must ask yourself whether on the basis of evidence that you do accept you are convinced BEYOND A REASONABLE DOUBT by that evidence of the guilt of the accused
it all boils down to the reliability and credibility of the evidence of the witnesses****** RELIABILITY AND CREDIBILITY - 104What must be in your submissions1. what remedy you are seeking (guilty or or guilty)
2. dont consider the evidence of the opponent for these reasons
3. here is how the case my friend presented is different from this one
4. take the court through the highlights of your witnesses
5. tell the court the law taht supports your case - 105crown submission ex parteyour worship the crown has presented a prima facie case and there is no evidence to the contrary
- 106note: defense submissions are the same but reversed
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- POA Fichas sobre POA Test 2, creado por Jean Ramsay el 29/10/2019.
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- Jean Ramsay
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