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Flashcards

Criminal Procedure II

Kally Ho English 181 cards

Cards in this deck (181)

  1. 1Why would you NOT want a prelim?D: if not enough evidence, accused may want to go directly to trial and get a directed verdict instead
    If the accused is in custody
    There aren't many witnesses to cross-examine
    Lets witnesses experience "test run" of cross examination a trial
    The increased costs of hiring a lawyer when there is a prelim
  2. 2Which section of CC provides for a prelim?s. 535 of CC
  3. 3Do lawyers have free reign at a prelim?R v Garofoli - SCC decided that cross-examination at prelims must have reasonable basis, they can't be fishing expeditions
    536.4(1) - issues and witnesses at prelims must be specified in writing, and the judge can shut lawyers down if they do not follow what they wrote [s. 537(1)(i)]
  4. 4What are the powers of a prelim judge?s. 537(1)
    a) they can adjourn the prelim and change the place of the hearing where it appears to be desirable to do so when a witness is absent/ill (OR adjourn when Crown can't meet their burden)
    b) remand the accused to custody to get fingerprinted
    c) remand the accused in a prison overnight and return them to court in the morning (Form 19)
    d) resume a prelim before the adjournment date with Crown and D consent
    e) order (Form 30) that the accused be brought before any justice in the same territorial division while accused is still in custody
    f) disallow crown to open/rebut
    g) receive evidence
    h) bar public access to prelim
    i) allows them to regulate the prelim according to outline of witnesses/issues set ahead of time
    j) can allow anyone (accused or witness) to testify from out of court
    j.1) permit the accused to not have to be present on any conditions justice deems appropriate
    k) require accused in custody to appear by video
  5. 5What can a prelim judge NOT do?Order disclosure (b/c it is a s 7 Charter right)
    R v Mills - Hear charter motions
  6. 6What CAN prelim judges do?Rule on matters of common law or statute law, like non Charter evidentiary rules
    Make findings about the voluntariness of a statement
    (All the rules of evidence applies, but hearsay evidence can be accepted)
    Can grant adjournments of prelims if Crown can't meet burden [537(1)(a)]
  7. 7Can there be publication bans at a prelim?s 539 - pub bans are automatic at the behest of the defence, and possible at the behest of Crown
    It's not for the Crown to keep the public out when the accused doesn't care
  8. 8What is the procedure for evidence? at a prelim?s. 540(1)(a) - Crown evidence
    They must be heard
    Defence has right to cross-examine
    s. 541(1) - defence evidence must be heard
  9. 9What is the procedure for inadmissible evidence at a prelim?s 540(7) - PLJs have ability to receive hearsay evidence if they think it's credible or trustworthy
    (8) - but only if the party has given to each of the other parties reasonable notice of intention to tender, together with a copy of the statement, if any
    (9) - if D makes an application to CE the witness, if judge considers it appropriate, can produce the witness for D CE
  10. 10What is the test for committal?United States of America v Shephard
    Whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty (find the accused guilty)
    Not would, COULD
    As long as the Crown has called some evidence for every essential element of the offence, then PLJ must commit the accused to trial, no matter how weak the case or whether there is defence evidence
  11. 11What happens when the Crown is relying on circumstantial evidence to rove an essential element of the offenceR v Acuri
    Where the crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighting of the whole of the evidence (including defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty
  12. 12What is a limited weighing of the evidence?R v Munoz
    Limited weighing means that inferences drawn need not be compelling or easily drawn - a matter for Trier of Fact. But inferences must be reasonably based on evidence heard at the prelim, and reasonable
    Judge is not permitted to make inferences that are not available on the evidence - the inferential gap must be closed by EVIDENCE
    Competing inferences are irrelevant, PIJ's role is to determine whether an inference can reasonably be drawn in favour of the Crown's position
  13. 13Does the accused have a duty to disclose material?R v Stinchcombe
    No, only the Crown has an ongoing obligation for first party disclosure. Duty triggered by defence request any time after charge
    R v Girimonte
    But defence has a duty to request disclosure ASAP, no fishing expeditions allowed
  14. 14What charter right is connected to the right to disclosure?R v Stinchcombe
    s 7 - right to full answer and defence
    R v Girimonte
    Full answer and defence encompasses the right to meet the case presented by the prosecution, advance a case for the defence, and make informed decisions on procedural and other matters which affect the conduct of the defence
  15. 15What is excluded from mandatory Crown disclosureR v Stinchcombe
    1) Anything that clearly irrelevant
    2) information beyond the crown's control or possession (Crown and PO is viewed as same)
    3) privileged information
    4) information under Mills regime
  16. 16When must initial disclosure happen?R v Girimonte
    Initial disclosure must occur before the accused is called upon to elect, plead, or engage in any other step that may affect full answer and defence
  17. 17What must be disclosed by the Crown?R v Stinchcombe
    All relevant evidence in the Crown's possession must be disclosed, even if it's inadmissible
    Evidence must be disclosed whether or not the Crown is going to rely upon it
    Evidence must be disclosed whether it is inculpatory/exculpatory
    R v Quesnelle
    In sexual assault cases, existence of third party records in the crown's possession must be disclosed - including police occurrence reports that the complainant has filed before
  18. 18Does the Crown have an obligation to disclose material that is not in the Crown's possession?R v McNeill
    Crown is not necessarily required to find/disclose relevant evidence in the hands of other government agencies/Crowns in other jurisdictions.
    BUT, Crown has a duty to make reasonable inquiries to other government agencies when it comes to their attention that such agencies possess information relevant to the case
  19. 19Does Crown disclosure encapsulate police materials and materials about police misconduct?R v McNeill
    Police have a duty to disclose as a corollary to Crown duty
    McNeill Application
    This includes relevant information about past misconduct of officers involved in the case (Ferguson Reports - relating to drugs, Police Service Act, and finding of conviction/guilt under any provincial/federal statue)
    If material does not fall under these headings, then use O'Conner. If it does, Stinchcombe covers it.
  20. 20What if the Crown doesn't want to disclose something?R v Stinchcombe
    The burden is on the Crown to justify non-disclosure by showing the evidence is:
    1) clearly irrelevant - no reasonable possibility of information being useful to D to make full answer and defence
    2) information beyond its control/possession
    3) privileged information (witness/victim protection)
    4) Information falling under Mills regime
    5) Crown may temporarily withhold/delay disclosure of evidence on rare occasions to protect witnesses or complete an ongoing investigation
  21. 21Who can review first-party disclosure?R v Girimonte
    Crown disclosure decision/disclosure applications may only be reviewed either by the Trial Judge, Superior Court Judge, or ONCA Judge, but not by the Preliminary Inquiry judge.
  22. 22What can defence do they contend there are identified and existing materials that ought to have been produced?R v Chaplin
    Step 1 (onus) - Defence – Just prove that it exist and that you need it (it’s not an onerous test)
    Step 2 - Crown must justify non-disclosure by bringing itself within an exception to general rule
  23. 23What can defence do they contend there are materials whose existence is in dispute that ought to have been produced?R v Chaplin
    Step 1 (onus) - Defence must establish a basis which could enable the judge to conclude there is in existence further material which is “potentially relevant”
    Step 2 - If defence establishes this, then Crown must justify continuing refusal to disclose
  24. 24How do you establish a s7 violation against the right of D to make a full answer and defence??R v Dixon
    Question 1: Did the failure to disclose impact the right to make full answer and defense?
    Standard - Is there a reasonable possibility that the undisclosed information could have been used in meeting the case presented by the Crown? (Show that the it exists and that you want it)
    [There must be “actual prejudice” proven for a remedy other than just “give me the material” under 24(1)]
    R v O’Connor; R v Bjelland
    Question 2: Did the appellant suffer “actual prejudice”?
    First step: If a court is persuaded that there is a reasonable possibility that the undisclosed information affected the reliability of the conviction, a new trial should ordered
    Second step: If it does not affect the reliability of the result at trial, go on to consider the effect of the nondisclosure on the overall fairness of the trial process. Where the materiality of the undisclosed material is very high, a new trial should be ordered. Where the materiality of the undisclosed material is relatively low, the Court will determine whether any realistic opportunities were lost to defence
  25. 25What is the appropriate remedy for a violation of the accused's right to full answer and defence?Remedy – Before a Conviction Entered
    If the section 7 argument is made before a conviction has been entered, then the usual remedy is disclosure (s.24(1)).
    Remedy – After a Conviction Entered
    If the section 7 argument is made post-conviction, then disclosure is not available.
    Therefore, appellate courts must determine two things:
    1. Did the undisclosed information meet the Stinchcombe requirements?
    2. If so, did the Crown’s failure to disclose the information impair the accused’s right to make full answer and defence?
    R v Bjelland
    Yes? -> Then post-trial fashion remedy to remediate prejudice
  26. 26How is a remedy for a violation of the accused's right to full answer and defence fashioned?R v Bjelland
    Remedy will be fashioned to remediate prejudice to accused, and to safeguard integrity of justice system.
  27. 27What are possible remedies for a s.7 violation due to non-disclosure under s. 24(1)?Disclosure – MOST COMMON
    Recalling witnesses or allowing defence to re-open case
    Re-election
    Adjournment
    Mistrial
    Exclusion of evidence – rare – clearest of cases
    Stay of proceedings – very rare – clearest of cases
  28. 28What should the Court consider when selecting the appropriate remedy fora s.7 violation due to non-disclosure under s. 24(1)?R v O'Connor
    Seriousness of violation;
    Individual and societal interest in determination on merits (which grows with seriousness of charge);
    Conduct and intention of Crown;
    Number of adjournments necessitated by non-disclosure
  29. 29What if the evidence defence is requesting to be disclosed is lost?R v LA
    The crown has an obligation to preserve all evidence that is not clearly irrelevant. If the evidence is lost, it may lead to a s7 violation. It will only lead to a violation in 1/3 ways:
    1. If the PO or P engage in unacceptable negligence
    2. If not #1, if the D proves that their ability to make a full answer and defence has been compromised in some meaningful way
    3. If not #1 or #2, if PO or P has engaged in an abusive process (intentionally withheld, lost, or corrupted it)
  30. 30What does defence have to do in order to secure disclosure?R v Dixon
    Defence must exercise due diligence to a sufficient degree to override the prejudice resulting form the failure to disclose
    Defence must do due diligence to ensure disclosure is received
  31. 31What is an O'Conner Application?R v McNeill
    This is an application for third party disclosure in cases that are not sexual offences
  32. 32What is third party disclosureR v O'Connor / s. 278.1
    Evidence not in possession of the Crown Prosecutors, or that the Crown should not reasonably have been expected to bring into its possession and disclose, where legislative scheme set out in ss.278.1-278.9(1)/Mills does not apply
  33. 33What are the procedural steps to an O'Connor application?R v O'Connor
    1) Accused obtains subpoena duces tecum pursuant to ss. 698(1) and 700(1) of the Criminal Code
    2) Accused serves and files application (with affidavit – usually a hearsay affidavit), showing “likely relevance”:
    Notice must be given to: Crown; Party in possession of document; and, Party with privacy interest in document.
    3) O’Connor application brought before trial judge
    [Application may be heard prior to trial. Unlike disclosure applications, third party disclosure applications can only take place before the TJ or with SCJ (because of its inherent jurisdiction)
    4) If likely relevance test met – judge inspects and does balancing
  34. 34What is the test for approving an O'Connor Application?R v Mills
    1) Applicant (always the defendant) must demonstrate “likely relevance”. If test is met, records may be produced to court for inspection
    2) The judge must then determine whether, and to what extent, production should be ordered to the accused, balancing the salutary effects of ordering production of documents against deleterious effects of the same
    \
    [Probative value v. Privacy interest balancing analysis]
  35. 35What is "likely relevance"? Who has this burden and what is the standard of proof?R v Mills
    A Reasonable Possibility that the evidence is logically probative to an issue at trial or to the credibility of a witness or other evidence
    Accused; reasonable possibility - not a high standard
  36. 36How does the judge balance the salutary effects of ordering production of documents against deleterious effects of the same?R v Mills
    1. Extent to which record necessary for accused to make full answer and defence
    2. Probative value of record in question
    [The record may still be produced even though it is not admissible on its face (ex. it may help D find other witnesses)]
    3. Nature and extent of reasonable expectation of privacy vested in record:
    a) Whether production would be premised upon discriminatory belief or bias; and,
    b) Potential prejudice to complainant’s dignity, privacy, or security of person occasioned by production:
    i. How was the record created
    ii. Who created record
    iii. When was it made
    iv. Why it was created
    v. Who holds the privacy interest
    vi. How record was obtained to PO/P
    vii. Presence of waiver of privacy
    viii. Applicable legislation
    ix. Does privacy extent to all or some of the record
  37. 37What if the O'Connor TPR is clearly irrelevant?R v Mills
    If record is not relevant, it won’t even be produced → there is no privacy interest to balance
    If record “relevant”, accused’s right to make full answer and defence will prevail (because someone’s liberty is at stake, at least in the O’Connor application) “with few exceptions,” which tips the balance in favour of production
  38. 38How can the trial judge tailor the O'Connor TPR?R v McNeill
    Impose publication ban on any materials of those documents;
    Bar spectators from courtroom for sensitive evidence if material is presented in court;
    Redact certain portions of the record before ordering its production to accused;
    Set limits on other uses the accused may make of the information
    Judge can order that the material can't be disseminated to people other than by the D for full answer/defence or by an expert, must be returned to P, or that it must be destroyed within 30 days of trial (in accordance to appeal)
  39. 39What is a Mills application for?Production application of TPR relating to sexual offences - (Criminal Code, 278.1 to 278.9)
  40. 40What is the difference between the test for a Mills Application and an O'Connor Application?1) Defence must prove relevance and judge must consider privacy BEFORE the documents be produced to the court
    After the document is produced, the judge must rebalance with the additional knowledge of the actual document the privacy interest
    2) More onerous test in 3a) → "Whether production would be premised upon discriminatory belief or bias"
  41. 41In what section of the CC can you find the Mills Application?Under s. 278.2 - 278.9(1) of the CC
  42. 42What is a Mills Application for other than the production of TPR?R v Quesnelle
    It is also about the use of docuements
    If you have the document in your possession, you still might not be able to use it if you don’t bring an application under 278 . Its not just production, but about whether if you can use and how
    Even if you got it in your possession, 278 might still apply (but no longer about production); Same analysis but with view of if you can use it, and then perhaps how
  43. 43What are the different types of problem solving courts?1. Gladue Court
    2. Mental Health Court
    3. Drug Treatment Court
  44. 44What are difficulties that Aboriginal people face in our society?R v Gladue
    Drastically overrepresented in courts or jails.
    More likely to be detained pending trial.
    More likely to receive custodial sentences.
    Victims of massive social and political oppression and struggle over the past several hundred years.
  45. 45Why do Aboriginal people face difficulties in our society?R v Gladue
    Poverty in Aboriginal communities.
    Intergenerational substance abuse.
    Lack of education and employment opportunities.
    Residual trauma from the residential schools system.
    Individual and institutional bias against aboriginal people.
  46. 46What is the nature of s. 718.2(e)R v Gladue
    Section 718.2(e) is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.
  47. 47What should courts take into consideration under s.718.2(e)R v Gladue
    [Courts shall take into consideration]
    all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims and the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
  48. 48What are the particular circumstances that judges must take into account when sentencing an Aboriginal offender?R v Gladue
    (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
    (B) The types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection
  49. 49What happens is a judge fails to consider the historic socio-cultural considerations when sentencing an Aboriginal offender?R v Ipeelee
    Failing to take those circumstances into account would violate the fundamental principles of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender
  50. 50What facts must courts take judicial notice of when sentencing an Aboriginal offender?R v Ipeelee
    Courts must take judicial notes of colonialism, displacement, residential schools, and intergenerational trauma, etc.
  51. 51Do taking judicial of these notice of systemic and background factors end up excusing/justifying the criminal conduct of Aboriginal offenders?R v Ipeelee
    Systemic and background factors are NOT an excuse or justification for the criminal conduct. They are for letting a judge determine an appropriate sentence, which will contribute to a just and peaceful society in the aggregate
  52. 52Are Canadian sentencing principles the only ones at play when sentencing Aboriginal offenders?R v Ipeelee
    Aboriginal sentencing principles are also acceptable given that they are sovereign peoples within our nation
  53. 53What are the objectives of the Mental Health Court?1) to address fitness issues and related pre-trial issues expeditiously
    2) to better address the needs of the mentally ill --> Prevent a revolving door
  54. 54What is general diversion?When someone with a limited record who committed a minor crime is diverted, the charges against them are stayed, so long as they engage in some sort of treatment program, or conflict resolution program, or if they make a donation, or if they make an apology
  55. 55What is diversion in mental health court?In the mental health context, the accused is diverted into a treatment program that helps them to get themselves together, and when they have done so, the charges against them are stayed
  56. 56How does diversion work?Step 1: The Crown approves the diversion (unless it is an offence where diversion is presumptive.
    Step 2: A plan for the treatment of the person in the community is created.
    Step 3: The person is monitored for a period of time as they live out the diversion plan.
    Step 4: Once the person is stable and following out their plan, the Crown stays the charges under s 579 of the Criminal Code.
  57. 57Is there a constitutional problem with diversion?Yes, with step 2, as we have the right to not be forced to take medication, but the diverted person either has to take the medication under their plan or go to jail.
  58. 58Can you enter diversion and keep your presumption of innocence?No, you have to plead guilty in order to enter diversion
  59. 59Which offences are presumptively diverted?Some low-end Offenses are Presumptively Eligible for Mental Health Diversion:
    Theft and Possession under $5,000
    Joyriding
    Mischief under $5,000.
    Fraud and false pretenses under $5,000.
    Food, travel and accommodation frauds.
    Causing a disturbance
  60. 60Which offences are ineligible for diversion?Certain Offenses are always Ineligible for Mental Health Diversion:
    Murder, manslaughter, infanticide, criminal negligence causing death.
    Impaired driving
    Any offence causing serious bodily harm.
    Offence involving firearms.
    Criminal Organization Offences.
    Kidnapping.
    Spouse/Partner offences.
    Child abuse + Child Pornography.
    Some hate crimes.
    Home invasion
    Sexual offences including sexual assault, interference, and exploitation – invitation to sexual touching and incest.
    Perjury
  61. 61How do you deal with the mental health issues of the accused if they've committed a non-divertable crime?Non-Divertible Crimes (plus lesser crimes where diversion is not decided upon) are dealt with the defence of NCRMD by s 16 of the Criminal Code.
    s. 16(1) No 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
  62. 62How does one prove NCRMD?Step 1: Must have a disease of the mind.
    Step 2: You must be incapable of either A or B
    Sub A – Appreciating the nature and quality of the act or omission. E.G. They are so disturbed that they cannot even think and understand what they are doing.
    Sub B – Knowing it was wrong (morally or legally). E.G. A schizophrenic person who thinks committing a crime is the only way to save the whole world from destruction, making the commission of the crime the right thing to do.
  63. 63What is the standard of proof for NCRMD and who bears this burden?s 16(2) / 16(3)
    BOP; The party who raises the issue (can be C or D)
  64. 64What are discretionary diversion offences?Where there is no statute suggesting/prohibiting diversion, the Crown is always the party to decide whether someone should be diverted, and the discretion is not reviewable unless there is evidence of abuse of process
    Vast majority of offences involve crown discretion for MH diversion
    ** Just because they’re presumptive eligible, doesn’t mean you’ll get diversion for sure; if you’ve had 6 diversions in the last 6 months, then you’re not gonna get it
  65. 65Who does the Crown have to get input from when deciding whether to allow the accused to enter into diversion?MH worker
    Defence Counsel
    Victims (depending on the offence)
    [But victims are not the basis for the diversion decision]
  66. 66What must the Crown et al consider when making a decision re: diversion?1) Circumstances of the offence - How severe was the actual action within the range of actions that could constitute that offence.
    2) Circumstances of the accused - Are they a multiple offender or a first offender? Will they responsive to community based treatment?
    3) The needs of the community, including the victim - Is this person a threat to public safety, and can this threat be dealt with adequately.
  67. 67What are the minimum requirements for Diversion?A) Accused must actually suffer from mental disorder or developmental delay that contributed to the commission of the offence.
    B) There are no public safety concerns attaching to the individual.
    C) There must be a reasonable prospect of conviction.
    Reason: Section 7 would be violated if the accused were diverted without a RPC, because the mental health system is still a form of control over the person, and they cannot be subjected to it without some justification.
  68. 68What is the criteria for assessing fitness?R v Taylor - Test of limited cognitive capacity [CC s 2 for “unfit to stand trial”]:
    (a) understand the nature or object of the proceedings,
    (b) understand the possible consequences of the proceedings, or
    (c) communicate with counsel
  69. 69Who presides over the fitness assessment?When it’s a relative clear case, it can be done quickly by:
    1.The Judge at trial.
    2.A psychiatrist at the courthouse.
    When it’s more complex:
    A 30-60 day proper assessment by a psychiatrist in a formal setting.
  70. 70What can the mental health court do?1) Diversions
    2) Fitness to stand trial assessments
    3) Bails
    4) Guilty Pleas
    5) Short, Simple MCRMD Hearings s. 16(1)
  71. 71What forms are involved in the Mental Health System?Assessment Orders (s 672.13) – Judge can order an assessment to determine if someone is fit, or whether they are NCRMD.
    Treatment Orders (s 627.58) – Judges can force treatment on someone for up to 60 days in order to make them fit to stand trial.
    Keep Fit Orders (s 627.29) – Once someone is found fit, this order keeps them in hospital until their trial is concluded.
  72. 72When can the Crown raise the defence of mental disorder under s.16(1)?R v Swain
    The crown can only raise the issue of mental disorder after the trier of fact has decided the accused’s guilt vis-à-vis the offence charged, except when the accused’s own evidence during the trial puts his or her mental capacity for criminal intent into issue
  73. 73Why can't the Crown raise the defence of NCRMD until after the ToF has decided the accused's guilty?R v Swain
    Party autonomy is a Principle of Fundamental Justice under s 7 - the accused should have the right to control his or her own defences.
    The raising of Insanity by the Crown:
    1. Forces the accused to advance inconsistent defences.
    2. Discredits and undermines the accused’s credibility.
    3. Leads the jury to conclude the defendant, as an insane person, is the “type of person to have committed the crime.
    The period of detention resulting from a defence of insanity might be much longer that the prison sentence would have been. Furthermore, this detention is often far from pleasant or effective
  74. 74Is the government allowed to automatically detain people found to be NCRMD until the Lieutenant Governor decides what to do with them?R v Swain
    Used to be in s 542, but is now repealed.
    The automatic detention of people found not guilty by reason of insanity is unconstitutional
    672.47 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.
  75. 75Who is admissible into drug treatment court?For addicts only - Difference between addict trafficker (selling to support their addiction) and a commercial trafficker (selling for money)
    Applies to drug offences and CC offences - Non violent offences; Possession; Trafficking in small amounts of cocaine, heroin…etc; Prostitution related offences; Property related offences
    Crown decides if allowed in (albeit, committee works to discuss it)
  76. 76What is the process for admission into DTC?a. Application
    b. Questionnaire
    c. Assessment
    d. Interview by TDTC judge
    e. Once accepted, must plead guilty to offence(s)
    i. Sometimes only way to bypass minimum sentence is to go here – this program DOES give LOTS more leeway in sentencing.
    f. Released on bail – conditions relate to program involvement
    g. As said, must attend 2x/week until graduate.
  77. 77How does one graduate from DTC?a. Takes about 1+ year
    b. Need to be conviction free for 3 months
    c. Need to be responding to treatment
    d. Abstinent for at least 3 months
    e. Need stable housing
    f. Need work/school/volunteer/training in place to graduate
  78. 78What is the DTC program like?Intense rehabilitation program: it is possible for addictions to not be seen as strong enough – it’s so high risk that there’s a risk low risk addicts given entry could become high-risk
    a. Individual and group counselling
    b. Random urine tests
    c. Weekly court attendances
    d. Requires 2x/wk attendance
    e. Random blood/urine tests
    f. People can get kicked out if reoffend
    g. Many people enter and ditch
    h. No fabulous relapse prevention rate, as consequence of taking diehard addicts.
  79. 79What is the purpose for judicial pretrials?Purpose is to help things run smoothly by identifying issues, checking up on timetables, etc…
    Can discuss resolution
    May be held when:
    The lawyers want judicial input on a potential resolution/ The lawyers want judicial input, because this is a complex case
    Know the basis of your motions – you will be asked by the judge to tell them your basis and they might not let your motion proceed if you basis sucks
    The judge, after hearing the discussion, re-evaluates the time estimate.
    At the end, a date is set for a trial or preliminary inquiry.
  80. 80When do JPTs take place are they mandatory??Are usually mandatory when trial is going to be of a certain length (1 day)
    JPTs come before Preliminary Inquiry, though there is one afterwards as well, as required by the SCJ rules.
  81. 81What happens if prelim is set after an OCJ JPT?If there is a preliminary inquiry, then the matter moves to the SCJ.
    This means that, after the preliminary inquiry, an SCJ Judicial Pretrial must take place.
  82. 82Who is present at a JPT?Crown/ Defence/ Judge
    The accused is not present.
    The officer in charge (the police officer running the case) is often present, because they can address issues relating to disclosure.
    JPTs are not conducted on the record.
    JPT is only the trial judge is the accused is planning to enter into a guilty plea, otherwise TJ will be a new judge
  83. 83What is a focus hearing?Happens before Prelim → to organize how the prelim is going to go
    **Most prelims don't have a focus hearing
    Only scheduled if the case is long and/or complex enough to justify it
    Can re-elect here, and prelim turn into trial
    Are held at option of Crown, Defence, or Judge.
    No discussion of resolution, as this would taint the trial judge.
  84. 84Where are focus hearings held?Focus Hearings are held at the OCJ
  85. 85What are Crown Pre-trials?Happens at the very beginning of the process. CPTs are always required for a prelim or trial date to be set.
    The Crown and defence discuss:
    Any problems with disclosure - Can a trial date be set, even if there is some minor disclosure outstanding?
    Potential resolution - The Crown and Defence negotiate about pleadings.
    Trial issues - Defence discusses Charter issues; Crown discusses Similar Fact Evidence, any supports for witness, any hearsay evidence being brought in, documents that require defence consent, etc…
    Time estimate on length of trial
  86. 86Who is present at a CPT?Crown and Defence
    Defendant is not present, and the discussion is off of the record.
    Usually done over the phone
  87. 87What are confirmation hearings?Happens for EVERY CASE - Purpose is to confirm trial times, with motions ready and witnesses subpoenaed
    Confirmation dates – judge asks for lowest position of the crown, the best that they can do for the defence
    Prosecution confirms that their witnesses are going to show in court (that they have subpoena/spoken to their witnesses and they are going to come to court)
    Defence has to say that they filed their motions/subpoena their witnesses/canvassed the plea the crown has offered
  88. 88What is the difference between a JPT and a PreTrial Motion?JPT in chambers; PTMs at trial
    JPT judge no jurisdiction to give ruling/decision; PTM judge (TJ) has jurisdiction to make ruling/decision
    JPT not part of trial process so D doesn’t have to be there (unless D is SRL); PTM happens after the arraignment in presence of D
  89. 89If the accused does not want a jury trial, does the crown have to consent?No, Crown is allowed to, but if Crown really wanted jury trial, the can do a direct indictment with AG's consent (s 577)
  90. 90What are the pros and cons to having a jury trial?Juries seem more likely to be prejudiced against the accused in inflammatory cases.
    Juries seem more likely to be favourable to a party that is sympathetic, but has the law against them.
    Judges are more likely to make good decisions in complex legal trials.
    Judges have to give reasons, making their decisions easier to review.
  91. 91What are the requirements for representation on a jury?R v Church of Scientology
    The requirement that the array generally represent the community is satisfied whenever the array is randomly selected.
    Selection processes that ask about gender, race, etc. in the selection of the array are not appropriate, because they infringe the privacy interests of potential jurors.
    The system cannot try to specifically exclude certain types of people, nor can it rely on exclusionary databases (ex. A database that doesn’t include information about a part of the province that has a concentration of a certain type of people).
  92. 92What is the test for representative obligation for a jury?R v Kokopenace
    General Question: Has the state provided a fair opportunity for a broad cross-section of society to participate in the jury process?
    The answer will be “yes” when:
    1. The state has made a reasonable effort to compile the jury roll using 1) random selection from lists that 2) draw from a broad cross-section of society.
    2. The state has made a reasonable effort to deliver jury notices to those who have been randomly selected
  93. 93What Charter provisions require representativeness?s. 11(d) – Requires a fair, independent and impartial tribunal → A problem with representativeness that does not undermine fairness and impartiality will not amount to a violation of s. 11(d).
    s. 11(f) – Requires trial by a jury of one’ s peers who act as the “conscience of the community” → All problems with representativeness undermine s. 11(f).
  94. 94Who cannot sit on a jury?1) People with a criminal record.
    2) Judges, officers of the court, court officials (not including court administrative workers).
    3) Lawyers and students at law.
    4) Non-citizens.
    5) If you’ve been a jury in the last 3 years
    6) Doctors can’t – nurses can
    7) Jailers
    8) Police officers on active duty – retirees can though
  95. 95What are the requirements for a jury?12 people must be selected.
    The trial judge may select up to two alternates under s 631. Alternates listen to the evidence with the jury. But, only 10-12 people can go into deliberation.
    If less than 10 jurors then mistrial. If somebody drops out, the alternates simply replace the dropped out jurors.
    If nobody drops out, there must be a lottery under s 681 to knock this number down to 12.
  96. 96What is a jury talisman?This involves the impressment of random people on the street into the jury roll.
    This occurs when the entire panel has been gone through without 12 people being selected and there aren’t enough spare jurors elsewhere in the courthouse.
  97. 97Can there be a pub ban during jury selection?Section 631(6) – Judge can order publication bans on identity of jurors, especially in cases where they might face threats from criminal organizations.
  98. 98Can the judge pre-screen people during the jury selection?Section 632 – Judge can pre-screen out (remove/replace) people for financial or personal hardship, personal interest, relationship with parties, and other reasons that the judge sees fit.
    If before trial use s. 632 if after trial started use s.644
    Can replace jurors before trial begins
  99. 99Must there be 12 jurors at all times during the trial?Trial must commence with 12 jurors
    Once heard evidence cannot replace jurors – but can drop to 10
  100. 100Does the jury selection jury have to be the trial judge?Section 626.1 – Judge in jury trial need not be judge who selected jury
  101. 101What is a stand aside?s 633
    Judges are allowed to put certain people (usually ones facing minor hardship) on the sidelines (does not count as one of the Defence’s or Crown’s peremptory challenge). They will only become part of the roll if everyone else runs out.
    The Crown could formerly do this. However, this was found unconstitutional in [R v Bain], because it was unfair to the defence
  102. 102What is a peremptory challenge?Each side has the right to challenge (I.E. send home) a certain number of jurors that the other side approves of → no questions asked, a trump skip card to pass on this potential juror.
  103. 103Who gets to use their peremptory challenge first?s 635
    The defence goes first for the first potential juror, and the parties then alternate on who goes first for challenges for the remaining potential jurors.
  104. 104How many peremptory challenges does the crown and defence get?s 634
    First Degree Murder – 20 each side
    All offences where max penalty is more than 5 years – 12 each side
    Any other offence – 4 each side
    If there are co-accused, Crown gets sum of all accused.
  105. 105What information is available to the lawyer in the determination of whether to use a peremptory challenge or not?R v Latimer
    1. Their demeanour
    2. The information given to you by the court (their name, job, and address).
  106. 106Are Crown exempt from judicial scrutiny for how they use their peremptory challenge?The Crown's exercise of discretion in relation to peremptory challenge is not immune from judicial scrutiny - if at odds with duties as impartial minister of justice (R v Boucher), then can intervene
    Issue must be brought up a trial to have a full review of the relevant facts
  107. 107What are the general steps that need to be taken for challenge for cause questions to be asked?General Steps
    Step 1 – Moving party must prove air of reality to A) the widespread existence of bias, and B) to the idea that there will be people unable to set aside this bias.
    Step 2 – Must seek approval for questions from the Trial Judge, and then ask the potential jurors the questions.
  108. 108Can you have a challenge for cause for media bias?Yes; R v Sheratt
    There must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed
  109. 109Can you have a challenge for cause for racial bias?R v Parks → you can ask C4C questions if your client is black
    R v Williams → you can ask C4C questions if you client is aboriginal
  110. 110What are the types of challenge for cause questions generally allowed?A)Would your ability to judge the evidence in this case without bias, prejudice, or partiality be affected by the fact that the person charged is of race X.
    Or, maybe
    B) Would your ability… by the fact that the person charged is of race X and the complainant is of race Y.
  111. 111How do you establish an air of reality for racial bias in a community for a C4C question?R v Williams
    Evidence of widespread bias is enough to establish an air of reality
  112. 112What happens when the air of reality for widespread racial biased against a group is established?R v Williams
    Judges can, and must, take judicial notice of bias against group X once it has been proved in another case.
  113. 113What is a Challenge for Cause motion?Challenge for Cause Motion for permission to ask questions of all potential jury members during jury selection right before
    Publicity → pre trial bias that comes from the publicity of the case (Sherratt)
    Racism/ Bias → Parks (you can ask questions if your client is black) and Williams (you can ask questions if your client is aboriginal)
  114. 114What is the default method of jury selectionR v Noureddine
    Using a rotating trier
    But, a motion for static trier [s.640(2.1)] is possible. However, because rotating trier is the default method, it also becomes a reversible legal error at CoA if motion wasn’t made and you used static triers anyway
  115. 115What is the process in jury selection with challenge for cause using static triers?2 random people from the pool who have not been asked the challenge for cause questions, so can’t on the jury → they are triers
    They stay to test everyone → they can’t be triers b/c they are untested and hears all the answers
    If you’re selected to be a juror, then you’re asked to leave the room until the 12 seats are chosen/alternates etc.
    ***downside with static triers is that the triers are untested people
  116. 116What is the process in jury selection with challenge for cause using rotating triers?2 random people from the pool who have not been asked the challenge for cause questions, so can’t on the jury → they are triers
    3rd person is called – potential juror 1. Judge can stand aside before the C4C questions are even asked. If no stand aside, then asked C4C Qs by D
    Triers are there to judge the answers of the potential jury member → as impartial neutral arbitrators
    If triers believe the potential jury member, then it goes to the judge who will ask D/C if they have a peremptory challenge
    If yes, jury is out
    If no, then they’re a jury
    Juror 1 then replaces a trier (So now you have two tiers – one is untested, the other is juror 1 who has been tested)
    4th person is called – potential juror 2 (repeat process, except C4C Qs asked by C this time)
    Juror 2 then replaces the other untested trier, and now both triers are tested.
    Juror 3 will replace Juror 1 as trier, and Juror 1 will go into the box.
    Once box gets to 10, then juror 11 and 12 leave their trier position and enter the box (process can continue to find alternate jurors)
    ***downside is that jurors hear everything
  117. 117What is the process in jury selection without challenge for cause?Order of challenges for jury selection w/o challenge for cause
    Judge’s stand aside
    D peremptory/C peremptory
    If no challenge, then selected (go until you have 12 jury members)
  118. 118What is the criminal standard of proof?R v Lifchus
    1. A reasonable doubt is not frivolous or imaginary, nor is it based upon sympathy or prejudice.
    2. It must be based on reason and common sense, and must be logically connected with the evidence or absence thereof.
    3. It does not require proof to an absolute certainty, or proof beyond even the most imaginary of frivolous doubt.
    4. Nevertheless, more than reasonable probability of guilt is required.
  119. 119Who can compel witnesses?s698 - 708
    Must be done by a judicial order, usually a subpoena issued by a provincial officer. They are personally served, and if they don’t comply there will be a Canada wide arrest warrant issued for the witness.
    ***You can also compel a person to bring documents with them that are relevant to the proceedings
  120. 120Can you exclude witness from the trial?Judges have the common law power to exclude witnesses from hearing other trial events, so as to prevent them from being influenced by other information.
    Witnesses are also not allowed to talk to other witnesses outside of the courtroom.
  121. 121Can support persons be used at trial?486.1 – Support persons may be used at trial
  122. 122Do witnesses have to be physically present in the courtroom when testifying?486.2 – Provides for out of court testimony by closed circuit television, and for testimony from behind a screen.
  123. 123Can you prevent the accuse from cross examining a witness who is less than 18 y/o?486.3 – On application by the prosecution or witness, the judge shall order that the accused not personally cross-examine a witness less than 18 years of age.
    If the accused is not allowed to conduct the cross-examination, but have no lawyer, then judge will appoint a lawyer to act for them to cross-examine the witness.
    Exception – Unless justice is of the proper administration of justice requires the accused to personally conduct the cross-examination.
  124. 124Can the accused appear by agent in a summary conviction trial?s. 800(2) R v Romanowicz
    Yes; Test:
    1) Defendant must have made an informed choice to forego counsel
    2) Defendant knows that the agent is NOT a lawyer
    3) Defendant knows that the agent is not required to pass any competency exams (Bar/Law School)
  125. 125When does defence open their case at trial?R v Fatima and Khan; s 651(2)
    s. 651(2) suggests that the defence should open after the Crown has closed its case.
    However, there is a body of non-binding jurisprudence that gives the trial judge discretion to allow the Defense to open right after the Crown where to do so would be in the “interests of justice”
  126. 126What is the test for a Directed Verdict of Acquittal and when does it happen?R v Arcuri
    When the Crown closes its case, the defence might bring an Application for a Directed Verdict of Acquittal.
    TEST: The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt (it does not matter if there are also competing inferences based on the evidence)
  127. 127What happens if you are late in bringing a motion?R v Blom
    Procedural rules are servants, not masters (not fatal to a case, but serve a purpose of fairness and expediency)
    When a rule is violated (ex. by a failure to provide adequate notice), the key concern in whether the violation has caused prejudice.
    Where there is prejudice, the court must consider whether something less drastic than enforcing rigid adherence to the rule, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay," can be done to alleviate that prejudice (ie. delaying the trial)
  128. 128What are the main consideration for adjournments in relation to a witness not being present?R v Darville
    1. Does the witness have material evidence to give, and is it material enough for it to be worth adjourning the trial?
    2. Is it likely that the witness is going to attend on the next occasion?
    3. Is the moving party responsible, either directly or through negligence, for the non-attendance of the witness themselves (laches)?
    Overriding concern is PREJUDICE.
    If the delay is going to keep the accused in prison for even longer while awaiting trial, the TJ may compensate for this prejudice by forcing the crown to have them released on bail in exchange for an extension.
  129. 129When must 11b motions be brought?Since the remedy is a stay of proceedings, 11(b) applications must be brought well before the trial so that, if a violation is found, there is still time for a different trial to be booked in the time.
    OCJ requires 60 days notice.
    SCJ is less clear, but see rule 27.
  130. 130What section of CC governs Severance and Joinders of counts?Counts - s 589 - 591
    Joinder of Accused - s 592
  131. 131How much notice must be given for a Similar Fact Evidence Application?Crown must give 30 days notice before brining Similar Fact Evidence (According to the SCJ rules)
  132. 132How much notice must be given for Charter Applications?Currently, 30 days notice (or up to 60 days) is required by defence for Charter Applications. (According to the SCJ rules).
    Respond to the party giving notice must be given by the midpoint of the notice period, letting them know if you are going to oppose them
  133. 133How should the accused be address at trial? Where should the accused sit?Recommendation 83 of the Guy Paul Morin Inquiry
    (A) Absent the existence of a proven security risk, persons charged with a criminal offence should be entitled to be seated with their counsel (R v C(G))
    (B) The accused should be referred to by name, rather than being called “the accused.”
    Both of these cause moral prejudice to the accused
  134. 134Should the accused be shackled at trial?R v McNeill
    If an issue is raised as to the shackling of a prisoner inside the courtroom, the presiding judge is required to hold a hearing to enable him or her to properly exercise his or her discretion on the issue.
    This is a reversible error on appeal.
  135. 135When might restraints on an accused while inside the court room be necessary?R v Brown
    The Crown bears the onus of proving on a BOP that the physical restraints on the accused in the courtroom are justified in all of the circumstances of the case, because there are reasonable grounds to believe that the accused will be violent or try to escape.
  136. 136What motions happen during the trial?Most hearsay motions, expert evidence motions, prejudicial v probative judgments about evidence at trial
  137. 137What rights does one abandon when pleading guilty?1. The right to have the Crown prove your guilt beyond a reasonable doubt.
    2. The right to have a trial.
    3. The right to confront their accuser.
    4. The right to present their defence.
  138. 138Can the accused plead guilty to a lesser included offence?s 622
    The Accused is allowed to plead guilty to a lesser and included offence instead of the offence charged, if the Crown consents.
  139. 139Can the accused plead guilty to some offences from a single transaction with multiple offences and not others?s 606(4)
    An accused can plead guilty to any offence arising out of the same transaction, whether or not it is a lesser or included offence, if the Crown consents
  140. 140What is the pre-plea inquiry?s. 606(1)(1.1)
    A court may accept a plea of guilty only if it is satisfied that the accused
    (a) is making the plea voluntarily ; and
    (b) understands
    (i) that the plea is an admission of the essential elements of the offence,
    (ii) the nature and consequences of the plea, and
    (iii) that the court is not bound by an agreement made between the accused and prosecutor.
  141. 141Once you plead guilty, under what circumstances can the plea be struck?If someone pleads guilty, and they later find that they misunderstood something in the plea inquiry, they can seek to have the plea struck.
  142. 142What the PROS of plea bargaining?1. Saves time and money for everyone
    2. Spares the time and emotional trauma for the victims and witnesses.
    3. Helps you to suss out the other party.
    4. You might come to a joint submission, which comes with certainty and possibly a better sentence.
  143. 143What are the CONS of plea bargaining?1. Person may not be held accountable for all of the crimes they committed, only they ones the plead to.
    2. Depends hugely on the personalities and skills of the parties.
    3. Victims are left out of the process.
  144. 144When can joint sentencing submission between Crown and Defence be jumped by the judge?R v Cerasuolo
    Law is that the judge should not jump a not joint submission unless it is contrary to the public interest or legal principles
    (ie sentence is wrong in terms of the statute law [ex. under the minimum sentence], the sentence is outside of the range/guidelines for sentences set out by the COA; or is so short that it runs contrary to the public interest.)
    If judge planning to jump joint submissions they must give notice at prelim so counsels can address the concerns of the judge (or judge can not jump joint submission and invite one of the counsels to strike the submission)
  145. 145Can you intoduce hearsay evidence at sentencing hearings?Yes
    723(5) – Allows for the introduction of Hearsay Evidence, but gives the court power to compel the declarant to come to court.
  146. 146What is the standard of proof at sentencing hearings, and who bears this burden?R v Gardiner
    [s 724(3)(e)] Anything proved by the Crown - BARD
    [s 724(3)(d)] Anything proved by the Accused - BOP
  147. 147What is a Gardiner Hearing?R v Gardiner
    Hearings at which Crown proves aggravating factors only
  148. 148What are the purposes of sentencing?s 718
    The fundamental purpose of sentencing is 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;
    (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; and
    (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
  149. 149What is the fundamental principle of sentencing?718.1
    A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
    R v Ipeelee
    Some cases use the expression “moral culpability of the offender.”
  150. 150Can sentences be changed on appeal?R v McDonnell
    Unless there is a proper reason (ie. deviation from the sentencing range) to interfere with the sentence, a sentence cannot be altered on appeal.
    (R v Lacosse)
    When a court of appeal interferes on the ground that the judge ignored the correct starting point, it is saying that the sentence is demonstrably unfit because it falls outside the acceptable range of sentence for that sort of offence.
    Judges should not go outside a sentencing range unless there are unique or exceptional circumstances that justify it
  151. 151What is the order of consideration for sentencing objectives?Some crimes have a focus on denunciation and deterrence (ie. A longer sentence)
    718.01 - When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. (ie. A longer sentence)
    718.02 - Same for acts against peace officers and justice system participants. (ie. A longer sentence)
    Some acts require a focus on rehabilitation
    R v Priest – Rehabilitation is a pre-eminent concern when Youth are being sentenced.
    Otherwise, there is no direction on the order of dominant sentencing principles.
  152. 152What are aggravating factors?718.2(a) - Evidence that the
    (i) ... offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, etc,
    (ii) ... offender, in committing the offence, abused the offender’s spouse or common-law partner,
    (ii.1) ... offender, in committing the offence, abused a person under the age of 18,
    (iii) ... offender, in committing the offence, abused a position of trust or authority in relation to the victim,
    (iii.1) ... offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
    (iv) ... offence was committed for the benefit of, at the direction of or in association with a criminal organization,
    (v) ... offence was a terrorism offence,
    (vi) ... offence was committed while the offender was subject to a conditional sentence order made under s 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act
  153. 153What are non-codified aggravating factors?Non codified factors –
    Previous record, parole violation, out on bail, etc.
    Motivation for committing offence based on greed.
  154. 154Can outstanding charges or facts from the circumstance of the instance offence that could constitute an outstanding charge, betaken into account during sentencing?Yes
    Sentencing court is allowed to consider facts forming part of the circumstances of the offence that could constitute a basis for a separate charge
    (If 5 BEs and D only pleads to 3, D can still allow the C to read in the facts of the other 2 counts, and the judge can take into account these facts as aggravating factors)
  155. 155What are mitigating factors?Not found in the Criminal Code
    Guilty plea.
    Youth / elderly.
    Good intentions/motivations in committing the crime.
    Background of individual (e.g, victim of abuse, broken home)
    Mental health / Addictions
    Good character / lack of criminal record.
    Lack of need to punish someone further
    (E.G. Someone is paralyzed while committing an assault. What is the point of sending a paralyzed person to prison.)
  156. 156What are other principles of sentencing?718.2(b) - Take into account A/M factors
    718.2(b) - Parity
    A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
    718.2(c) - Totality
    Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
    718.2(d) - Restraint
    An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
    R v Batisse - requires a sentencing judge to consider rehab in determining length of sentence
    718.2(e) - Restraint
    All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims and the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
    SCC in Wells and Jacko – The more serious and violent the offence, the less significant the differences in sentence length will be between aboriginal and non-aboriginal offenders.
  157. 157Can organizations receive sentences?718.21 – Organizations can be sentenced (which usually involves fines, or charges to individual leaders)
    Deterrence and Denunciation are the main factors, as organizations cannot be rehabilitated.
  158. 158What kind of reports can be ordered for a sentencing hearing?721 – The Court can order a pre-sentence report, which informs the court about the offender, their needs, and their ability or willingness to abide by court orders.
    (Out of custody; takes ~6 weeks)
    (In custody; 10 days)
    722 – The court can order a victim impact statement. In certain circumstances, they are actually required to solicit victim statement reports.
    Gladue Reports – Explain the aboriginal heritage of the offender, and explains the background and systemic factors affecting them and their families.
  159. 159How is pre-trial custody calculated at sentencing?R v Summers
    ONCA suggested that 1.5:1 should be the norm, with 1:1 being the exception, even though law was changed in 2008 to say 1:1 normally, with 1.5:1 in exceptional circumstances.
  160. 160List the different types of non-custodial sentencesTechnically not a sentence:
    Diversion
    Peacebond (under s 810 or CC - must be laid within 6 months of the arrest unless defence waiver)
    Discharge (s 730) - accused is not seemed to have been convicted so there is no CR, but there is a finding of guilt
    Suspended sentence (s 731) - probation; CR
    Fines (s 734) - not the ancillary order type; CR; cannot be given with both a reformatory sentence and probation
    Restitution (s 738-739) - recompense the victim for the loss/damages they suffered or restore something that was lost/damaged
  161. 161What are the different types of discharge?Absolute discharge – A discharge with no conditions
    Conditional Discharge – A discharge that comes into effect on the completion of a probationary period / terms of probation
  162. 162What is the test for discharges?Test for Discharges
    1. Ask whether a discharge would be in the best interests of the accused.
    2.Ask whether the granting of a discharge would be contrary to public interest.
  163. 163Who can get a suspended sentence? What is it?It is available where the Crime has no Mandatory Minimum.
    The person gets a CR and is released on probation. If they breach the terms of the probation, they can be sentenced again.
  164. 164What kind of sentence can a sentence fine not be given with?A sentence with both a reformatory sentence and probation
  165. 165What is probation?Probation in criminal law is a period of supervision over an offender, ordered by a court instead of serving time in prison. Must be ordered for rehab purposes
    The maximum length of a probation order is three years
  166. 166When can probation be imposed?s 731 - It can be imposed with either a fine or a sentence of two years or less, but not both.
  167. 167What are the different conditions of probation?732.1(2) – Mandatory Conditions
    Keep the peace and be of good behaviour.
    Abstain from communicating with witnesses or victims.
    Appear before the court when required to do so.
    Notify the court officer of changes in address, employment, etc…
    732.1(3) – Optional Conditions
    Report to their probation officer every x number of days.
    Remain within the jurisdiction
    Abstain from owning, possessing, or carrying a weapon.
    Provide for the support or care of dependents.
    Perform up to 240 hours of community over a period up to 18 months.
  168. 168What are requirements for the terms imposed on probation?All probationary terms must be for aimed at rehabilitating the offender and must be connected to the offence
    Treatment terms can only be imposed on an offender if the offence was related to drug or alcohol consumption.
    Otherwise, you cannot impose treatment terms/ force an offender to take medication
    However, you cannot require a person to abstain from something they are addicted to.
    Common terms: Reside at/ No contact/ Attend Counselling/ Sign releases/ Boundary Restrictions
  169. 169List the different types of custodial sentencesConcurrent sentences - at the same time
    Consecutive sentences - back to back
    Reformatory sentences - jail sentence <2 years, can have rehab programs
    Intermittent sentences - on weekends
    Custodial sentences - jail sentence served in the community (ie. house arrest, then curfew, then conditions)
    Penitentiary sentences - jail sentences of 2+ years
  170. 170Who is eligible for a reformatory sentence and what can a reformatory sentence be combined with?For people sentenced to less than two years (two years less a day)
    Can be combined with probation or fine, but not both.
    Max probation is 3 years
    If ordering community service → max is 18 months
  171. 171Do judges have authority in reformatories? What type of security are the rehabilitative institutes?Judges have no authority in reformatories (RS are run by the province) – can make recommendations for offender to go to the facility, but the facility doesn’t have to take them
    Most are max - but the Ontario Correctional Institute is medium
  172. 172What are intermittent sentences?732(1)
    If you are sentenced to 90 days or less, you can serve the sentence intermittently
    (ie. serve Friday evening - Monday mornings - counts as 4 days).
    You are always on probation while serving an intermittent sentence – conditions attached
  173. 173What happens if you commit more crimes while serving an intermittent sentenceIt can be commuted to a normal sentence if you commit crimes while out.
    Can’t give two consecutive 90 day sentences for the accused to keep within the 90 day limit for intermittent sentences → it converts to straight time
    Even if serving 90 days and have 20 days left, if you reoffend and get another 90 days, then now you have 100+ days, and so that converts to straight time, UNLESS sentences are ordered to be served concurrently
  174. 174What is the purpose behind ordering a Conditional sentence?R v Proulx
    The purpose is to incorporate restorative justice principles alongside deterrence and denunciation.
    Conditional sentences are usually longer than the jail sentence would have been, as we don’t want to make this sentence too easy
    Restorative Justice
    People are more likely to be rehabilitated when they are with their family, in their community, seeing their normal doctor or psychiatrist, etc…
    People are more able to help out and feel remorse when they are out of prison, volunteering, making reparations to the victim, etc….
    Deterrence and Denunciation
    It is still, in many respects, a prison sentence.
  175. 175Who can get a Conditional sentence?742.1
    People convicted of an offence who the court imposes a sentence of imprisonment of less than two years, AND if
    a) court satisfied that community safety wouldn't be endangered AND sentence is consistent with fundamental purpose and principles of sentence in s 718 - 718.2
    b) offence has no minimum term of imprisonment
    c) offence has no max term of imprisonment of 14 years/life when proceeded by indictment
    d) office is not a terrorism/criminal organization offence which has a max term of 10/+ years when proceeded by indictment
    e) offence is not related to drugs/weapons/causing bodily harm that has no max term of imprisonment of 10 years when proceeded by indictment
    f) offence is not prison breach/ criminal harassment/ sexual harassment/ kidnapping/ trafficking in persons - material benefit/ abduction of person under 14/ motor vehicle theft/ theft over/ B&E into non-dwelling place/ unlawfully in dwelling-house/ arson for fraudulent purposes
  176. 176What happens if you breach while serving a conditional sentence?You have a supervisor, who monitors compliance with the order.
    If there is a breach, the following things will happen:
    1. You are arrested for breaching your conditions.
    2. You are brought to a show-cause hearing, and you ether get bail or don’t.
    3. You are brought to trial for the breach.
    [This trial can also deal with other crimes committed when you breached].
    4. The judge decides whether there was a breach, and what type of breach there was - proved BARD
    5. If there was a breach, the judge has to decide what to do
  177. 177If you are found to breach a conditional sentence, what can a judge do?a. Keep the conditional sentence in tact, and start the clock from where it left off at the time of the breach.
    b. Keep the conditional sentence in tact, and act as though the clock had run throughout the time they were on bail.
    c. Vary the terms of the conditional sentence, and either start the clock again, or act as though the clock had kept running.
    d. Commute the rest of the sentence to jail time.
    e. Put back in jail and the judge will make it straight time (for longer timer as well)
  178. 178When is one sentenced to a penitentiary?743.1
    (1) Your are sentenced to imprisonment in a penitentiary if your sentence is for:
    (a) life,
    (b) a term of two years or more, or
    (c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,
    (2) If your sentences is 2 years or less, you go to a reformatory.
  179. 179How do penitentiary sentences begin?Penitentiary sentences begin with a risk assessment (done by correctional officials).
  180. 180What ancillary orders can be given when sentencing?Dangerous and LTO Orders - requires consent of AG; there is test
    s 109 Mandatory Weapons Prohibition - mandatory for certain gun/drug offences, prohibited for 10-20 years
    s 110 - Discretionary Weapons Prohibition - optional for certain offences, length of prohibition at judge's discretion
    National Sex Offender Registry Order - mandatory for certain sexual offences; 10 for summary conviction, 20 for indictment
    DNA Order - mandatory for Primary Designated Offenders, optional for Secondary (Crown just prove interest of justice on BOP ie. privacy interest v criminal justice interest); some offences prohibit DNA orders
    Free Standing Restitution - person has time as long as needed to pay crime off
    Forfeiture Order - vehicles/cars are auctioned off, drugs are destoyed
    Victim Fine Surcharge - mandatory; non payment is a crime; $100 for summary, $200 for indictable, or 30% of fine (if fine is ordered, can make it v small so v little VFS - but has CR, no discharge)
  181. 181Within what timeframe must an appeal be filed?Crown - 30 days to file notice from acquittal
    Defence - 30 days to file notice post-sentencing

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Flashcards on Criminal Procedure II, created by Kally Ho on 04/08/2018.
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