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Flashcards

Criminal Law: Final Test

Paralegal Grad Cert Criminal Summary Conviction English 168 cards

What are the principles of sentencing? (There are six!)

Cards in this deck (168)

  1. 1what is the fundamental objective of Criminal Rules1. ensure that court proceedings are dealt with JUSTLY and EFFICIENTLY
    (ex. recognize the rights of the accused/ witnesses, treating the defence and prosecution fairly, scheduling court time that takes into account the complexity of the matter,the gravity of the offence, and the severity of the consequences)
  2. 2what is an applicationa request made before the court seeking an order for some sort of remedy or relief. usually seeks a decision about a procedural or evidentiary issue before a final decision is made in the case
  3. 3what form do you use for an application?Form 1
  4. 4what form do you use to respond to an applicationForm 2
  5. 5what is a practice direction?a directive issued by a court or court region to deal with minor procedural issues or to help interpret or apply the rules.
  6. 6how can parties deal with an application without a hearingby using a consent application (Form 3)
  7. 7Third party applications must be heard at least ________ before the trial30 days
  8. 8severing counts application + time limit + outcome if grantedthe court can order for the accused to be tried separately on one or more of the counts if it is in the best interest of justice to do so
    must be heard 60 days before trial
    Court considers: if the accused wants to testify on one count but not all, if there is a factual connection between the counts, if the crown will use similar fact evidence, the length of the trial if all counts included
    if granted the severed count will get its own trial
  9. 9application severing the accused + time limit + outcomethe court can sever the accused (2 people being tried in the same trial) if it is in the best interest of justice to do so
    the court has to weight the prejudice to the accused against public interest in conducting trials in a timely manner
    must be heard 60 days before the trial
    if successful the accused will be granted separate trials
  10. 10when is severance of accused likely to be grantedwhen one accused points the finger at the other
    when an accused wishes to call a co accused at trial
    or
    where evidence is admissible against one accused but inadmissible against the other
  11. 11public bana judge can order the exclusion of the public in the courtroom if they are satisfied that such order is in the interest of public morals, the maintenance of order, and the administration of justice/ national security
    court must consider:
    protection of witnesses under 18, society's interest in reporting, the witnesses ability to give full and candid recollection of facts in front of the public, protection of justice system
  12. 12publication banthe court can order restriction of the public information about the complainant or witness under the age of 18 in a sexual offence trial and can order this with discretion for people over 18
    considerations:
    fair/ public trial, risk to witness/ complainant/ is this order necessary to prevent intimidation, encourage participants to report offence, impact on freedom of expression
  13. 13release of exhibits for testingother party must receive 3 days notice
    application must be heard 60 days before trial
    judge can place conditions on exhibit to maintain its integrity
    the crown can ask for stipulations on exhibits - waiver of continuity of exhibit, description of where testing will take place, length of time required, whether a rep of the crown has to be present during testing
  14. 14amendment of informationthe accused may bring a motion to quash if there is a mistake in the information
    the judge can quash or amend, or adjourn the proceedings
  15. 15what are considered defects in an informationdefectively states what constitutes the offence
    defective in substance
    defective in form
  16. 16what is not considered a defect in an amendmentmistake in heading of indictment
    variances in time of offence as long as the offence can be proven to have been committed in the required time period
    variances in the location of the offence if it can be proven that the offence was committed in the territorial jurisdiction of the court
  17. 17what does the court have to consider before amending an informationmatters disclosed as evidence in prelim hearing, evidence taken at trial, circumstances of the case, if the accused has been prejudiced by this error, if the amendment would cause injustice
  18. 18particularsspecific details supporting a more general statement or proposition
    normally a request for detailed itemization of a count in an information (so the accused can have a fair trial)
  19. 19types of particulars that could be orderedanything relied on to support a charge of perjury or making false evidence
    anything related to fraud or false pretense
    anything printed in a periodical which is relied on to support charges related to obscene materials
    anything further describing a person place or thing in an information
  20. 20when do you have to apply for particulars by60 days before trial
  21. 21what is the outcome of a successful application for particularsthe accused will be given copies of whatever particular ordered without charge, the particular will be entered into the record and the trial will proceed
  22. 22removal of legal representative on record + time limit60 days before trial
    considerations:
    can the accused represent themselves?
    is there any other means of getting representation?
    impact on the accused
    impact on the crown/ witnesses
    history of the proceedings
    fairness to the defence
  23. 23adjournment + time limit60 days before trial
    last minute - must be before trial judge
    usually when accused or witness is ill, changes in representation
    will usually be granted if not being used to needlessly delay the trial
  24. 24disclosure + time limit60 days before trial
    if crown and defense disagree on relevance, crown fails to comply with disclosure requests
  25. 25when does the court start counting towards the accused right to a trial within a reasonable timefrom when the information is laid to the conclusion of the trial but institutional delay starts from the date that both parties are ready for trial
  26. 26the greater the prejudice to the accused the ___________ period of institutional delaythe shorter the acceptable period of institutional delay
  27. 27trial delay application 4 part test1. length of the delay
    2. explanation for the delay - is it the crown or accused's fault? do they have a valid reason?
    3. waiver of the accused rights by the accused - must be clear/ unequivocal
    4. prejudice to the accused - ex. onerous bail conditions, witnesses no longer available, etc
  28. 28third party record application is akaO'Connor Application
  29. 29O'Connor Application - examplesmedical records
    cellphone records
    records created by service providers
  30. 30O'Connor Application test for disclosurethe person seeking the production of the records has to show that the third party records are relevant to the proceedings - probative to an issue at trial or credibility of a witness
    considerations: interest of the accused in making full answer and defence and privacy interests of third party
  31. 31what kind of application can you make at trialexclusion of evidence under s 24(2) of Charter
  32. 32exclusion of evidence under s 24(2) of Charterthis happens when the accused is alleging that the police breached his charter rights under s 24(2) and wants the evidence to be excluded
  33. 33what test is used in an exclusion of evidence order under s 24(2)grant test
  34. 34what is the grant testShould Evidence be excluded?
    1. the seriousness of the charter infringing conduct of the state
    2. impact of the charter protected interests on the accused - would the admission of evidence bring the administration of justice into disrepute
    3. society's interest in the adjudication on the merits of the case
  35. 35Under what section can you find the principles of sentencing in the Criminal Code?s. 718
  36. 36What are the principles of sentencing? (There are six!)What are the principles of sentencing? (There are six!)
  37. 37What is denunciation?One of the principles of sentencing; focusing on denouncing or condemning criminal behavior.
  38. 38What is deterrence?A principle of sentencing; focuses on deterring or discouraging criminal behavior
  39. 39In regards to sentencing, what does social protection mean?Refers to there sometimes being a need to separate offenders from society!
  40. 40What does rehabilitation refer to?A principle in sentencing; focusing on the treatment (rather than the punishment) of an offender
    (Note: Usually more towards youth crime!)
  41. 41What is reparation?A principle of sentencing; focuses on repairing the harm done by the offender to the victim, or to society as a whole
  42. 42What report had a significant effect on sentencing in criminal law?The Daubney Report (1988)!
    Recommended an evaluation and expansion of programs that focus on both offender and victim at all stages of the criminal process, including sentencing
    [May not be on the test?]
  43. 43Referring to sentencing, what does self-responsibility mean?According to the Daubney report, sentencing should include invoking a sense of responsibility in offenders for their actions, and an acknowledgement of the harm done!
    [k maybe this report is on the test]
  44. 44Grounds for appealBasis upon which an
    appeal can be commenced
    and be successful. s. 686(1)
  45. 45Where can you find sentencing guidelines?s. 718.2! They serve as sentencing guidelines (as opposed to sentencing principles in s. 718)
  46. 46What are the sentencing guidelines?What are the sentencing guidelines?
  47. 47In what cases are denunciation and deterrence primary sentencing considerations?1) Crimes involving the abuse of a person under the age of 18 years
    2) Offences against peace officers or other justice systems participants
    (harsher sentences should be expected for the above offences; less focus on rehab, reparation and self responsibility)
  48. 48What is the definition of aggravating factors in regards to sentencing?Circumstances that surround the offence that increase the penalty associated with the offence
    Alternatively: Stuff that makes the crime look even more fucked up
  49. 49What is the definition of mitigating factors in regards to sentencing?Circumstances that surround the offence that reduce the penalty associated with the offence
    Alternatively: Stuff that makes the crime seem more like "oh okay I kinda get why they did that"
  50. 50What section of the Criminal Code refers to aggravating and mitigating factors in sentencing?s. 718.2!
    (Also the section known as sentencing guidelines!)
  51. 51Okay this isn't a question; the answer are the principles and there's a lot, please just read on the answer slide :(Okay this isn't a question; the answer are the principles and there's a lot, please just read on the answer slide :(
  52. 52What section of the Criminal Code is basically a Shields Inquiry?s. 606 (1.1)!
    1) Voluntarily made
    2) Accused knows pleading guilty is admission of elements of offence
    3) Accused is aware of the nature/consequences of the plea
    4) Court NOT bound by any agreement made between accused and prosecutor
  53. 53What happens when an appeal succeeds? hint - s.686(1)(a)1. Allow an appeal against conviction OR
    2. Find them NCR on account of mental disorder where it is of the opinion that:
    a. verdict unreasonable
    b. wrong decision/question of law
    c. miscarriage of justice
  54. 54What is a pre-sentence report?A report prepared by a probation officer. Usually contains info about offender's age, maturity, character, behaviour, attitude, willingness to make amends, previous findings of guilt, and previous sentences.
    Can also include other info requested by the judge. Also usually includes a recommended sentence (or types of sentences) by the probation officer
  55. 55Under what section of the Criminal Code can you request a pre-sentence report?Section 721
  56. 56Are courts bound by the suggestions and recommendations made in a pre-sentence report?Hell no.
    (When are they ever bound by any pre-agreed thing? I swear it's never)
  57. 57What form is required for Victim Impact Statements?Form 34.2
    (Not sure if this will be on the test)
  58. 58What section(s) of the Criminal Code refer to the procedure and presentation of victim impact statements?s. 722 to 722.2!
    Essentially when a guilty verdict is rendered, the court asks the Prosecutor if reasonable steps were taken to give the victim an opportunity to prep a VIS
  59. 59What are sentencing submissions?Essentially a report by either Prosecution, accused (or rep), or a joint submission by both. Meant to suggest an appropriate sentence
  60. 60What are the different types of sentences? (There are 7!)What are the different types of sentences? (There are 7!)
  61. 61What types of discharges are there?1) Absolute Discharge
    2) Conditional Discharge
    Under s. 730 (1) of the Criminal Code
  62. 62What is an absolute discharge?A sentence where there has been a finding of guilt made, but no conviction is registered.
    Only in cases where there is no need for any specific deterrence or rehabilitation, except when required by a probation order
  63. 63What is a conditional discharge?Similar to absolute discharge, EXCEPT the offender has to satisfy specific court-imposed conditions before the discharge is held.
    Usually made in a probation order (s. 731(2))
  64. 64When do discharges get expunged?Absolute Discharge - 1 Year from date discharge was granted
    Conditional Discharge - 3 Years from date of probation completion
  65. 65When are discharges not available?1) The offender is a corporation
    2) Offender has been convicted of an offence for which a minimum penalty is prescribed by the code
    3) Offender has been convicted of an offence for which a MAXIMUM penalty of 14 years or life is prescribed
  66. 66Diversion Programsan alternative to prosecution; Crown determines which cases are eligible for diversion; no conviction will be entered on the accused’s record
  67. 67Plea Bargainingalways consider as an option; usually results in a plea of guilty to at least one charge, or a lesser charge, which still could result in a sentence
    -Judges are not obligated to accept joint submissions of guilty, though they usually do, but they can choose to impose a different sentence if they like
  68. 68Possible Defencesconsider the possible application of the major defences to the facts of the case, ex. Consent, duress, necessity, self-defence, etc.
  69. 69Collection and Organization of InformationReal or physical evidence, documentary evidence, exhibits, business records, expert reports, and witnesses
    Once you have collected all your evidence, conduct an analysis of it – how the evidence benefits or harms your case, how you will use it and when
    Break down the offence into the elements, and apply the information based on how it relates to the individual elements – focus on gaps or weaknesses in the Crown’s case
  70. 70Communicating with Witnessesany party may approach any witness, but under the Rules of Conduct, if the witness is represented by a licensee, you must first receive the representative’s consent
  71. 71Special rules for witnesses under age of 18 or suffering from a disabilitythese individuals may be allowed to have a support person present while they testify; judge will consider the following factors in whether to allow this: age, mental/physical disability, type of offence, relationship to the accused, and other relevant circumstances
    Unrepresented defendant is not allowed to cross-examine a witness under 18, unless judge deems it necessary for proper administration of justice
  72. 72Special rules for witnesses testifying in sexual offence casesjudge can order that information identifying a witness or victim in these cases not be published in any way
  73. 73Continuity and AttendanceTrials will proceed continuously, subject to the court’s discretion to adjourn the proceedings
    Accused must be present for indictable trials, unless counsel is designated to appear, or the parties agree that the accused can appear via closed circuit television or other means
  74. 74Judge has the discretion to exclude the accused from court in the following situations:-misconduct that interrupts the proceedings
    -to determine whether he is fit to stand trial
  75. 75Summary Conviction TrialsGoverned by part XXVII of the Code
    Trial in Ontario Court of Justice, judge alone without a jury; individual referred to as “defendant”
    Defendant can appear personally or by agent; doesn't actually have to be present in court for every step of the trial process
  76. 76Peace BondA court order that requires a person to keep the peace and be of good behaviour for a specified period of time, it is not a conviction or finding of guilt
    -May be appropriate for any accused who does not have a prior criminal record
  77. 77Who presents their case first in a criminal trial?Crown
  78. 78Directed verdict of acquittalA motion to the court by the accused for an acquittal immediately following the completion of the Crown's case when there has not been any evidence upon which a reasonable jury, properly instructed, could convict the accused
    Sometimes referred to as a non-suit
  79. 79What happens if an offender fails to complete the terms of a conditional discharge?1) The offender may be sentenced to the original offence, and;
    2) Be charged with the further offence of failure to comply
  80. 80Alibigenerally, evidence of innocence - usually that the accused was somewhere else when the crime was committed
  81. 81Indictable TrialsJudge and jury – Charter guarantees the right to a jury trial for any indictable offence punishable by 5+ years imprisonment
    Jury trial mandatory for s. 469 offence, unless attorney general and accused consent to judge alone trial
  82. 82Jury Panel/Jury ArrayThese terms are used interchangeably and refer to large pool from which a jury is selected
  83. 83Jury Selection ProcessCrown and accused each have the right to challenge the jury panel
    Code requires names of prospective jurors be placed in a box and drawn randomly by the court clerk, until the number of jurors is sufficient to the judge
  84. 84Reasons why a judge may excuse a juror prior to the commencement of the trialJuror has a personal interest in the matter
    Juror is related to certain people in trial
    Juror is related to certain people in the trial
    Juror would suffer personal hardship by serving on the jury
  85. 85Peremptory challengethe ability of the Crown and the accused to reject a potential juror without further explanation or reason
  86. 86Challenge for causethe ability of the Crown and the accused to challenge a prospective juror's impartiality
  87. 87Grounds for Challenge for cause1) Name of juror doesnt appear on panel
    2) Juror not indifferent between Crown and accused
    3) Juror has been convicted of an offence for which they received sentence of 12 month or more
    4) Juror is an alien
    5) Juror is physically unable to perform properly the duties of a juror
    6) Juror does not speak the official language of Canada that is the language of the accused
  88. 88What is probation?A sentence that permits an offender to live in the community, but under supervision and subject to various conditions.
    It can also be ordered with a fine, and following a sentence of imprisonment for a term not exceeding two years
  89. 89Charge to the JuryJudge instructs jury on how to perform its duty in reaching a verdict
    Judge will summarize the evidence, go over the closing arguments and each party's theory of their case
    Should also include procedural instructions
  90. 90What is a suspended sentence?A sentence where the sentencing court suspends or holds in abeyance the passing of a sentence on an offender
    Alternatively: The sentencing court takes a rain check on passing a sentence
    Only available for offences that do not have a minimum sentence
  91. 91VerdictJury must be unanimous
    If jury is deadlocked and cannot come to a decision, judge will have to discharge the jury and declare a mistrial
  92. 92Disclosure of Jury DeliberationsIn Canada, jurors are required by law to keep details of their deliberations secret
  93. 93Trial Irregularities - examplesimproper/inflammatory opening statement or closing argument
    inadmissible evidence that was improperly put before a jury
    widespread bad publicity
    inappropriate contact between a juror and the accused
  94. 94How judge may deal with Irregularitiesremedy the problem by granting an adjournment or by instructing the jury to ignore the offending information
    If it is not possible to undo the damage, the judge may declare a mistrial
  95. 95What is the general maximum period of probation?3 years
    It starts from the run date the order is made.
  96. 96Where can you find the compulsory conditions of any probation order in the Criminal Code?s. 732.1(2)
    1) Keep the peace and be of good behavior
    2) Appear before the court as required;
    3) Notify the court or probation officer of any change to: name, address, or employment
    4) Abstain from communicating with the victim, a witness, or other specified person
    5) Abstain from attending any specified place unless consented to or if there are exceptional circumstances
  97. 97Where can you find additional conditions that may be included in a probation order in the Criminal Code?s. 732.1(3)
    1) Report to a probation officer at a particular time and place
    2) Remain within the jurisdiction of the court
    3) Abstain from the consumption of alcohol and non-prescription drugs
    4) Provide a sample of a bodily substance upon demand
    5) Abstain from owning/possessing a firearm
    5) Provide support/care of dependents
    7) Perform up to 240 hours of community services for a period of up to 1.5 years
  98. 98What special condition can be made for a probation order made against an organization?s. 731.1(3.1)
    Focus on Restitution through:
    1) the establishment of policies, standards, and procedures to reduce the risk of reoffending.
    2) Communicating the above to representatives
    3) reporting to the court on the implementation of the above
    4) identification of the senior officer responsible for compliance of the above
    5) provision of info to the public about the offence, sentence, and measures taken by the organization to reduce the likelihood of committing another offence
  99. 99What order is required under s. 161 for offenders who commit a sexual offence against a person under the age of 16?The court must consider making an order limiting the offender's contact with the victim or with other persons under the age of 16.
    In addition, the court can prohibit the offender from attending public places where persons under the age of 16 are present or can be reasonably expected to be present, working with persons under the age of 16, and limit of internet usage.
  100. 100When is the court required to make a weapons prohibition order under S. 109?When the accused is convicted of an indictable offence involving violence, with a max penalty of 10 years or more; OR
    When accused is convicted of certain other specified serious offences
  101. 101How long do the periods of prohibition last for weapons?First Infraction: 10 years for firearms, crossbows restricted weapons, & ammunition, lifetime ban for possession of prohibited or restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition
    Second Infraction: Lifetime ban for all
  102. 102When can a fine be implemented under s.734 of the Criminal Code?Only when there is no minimum sentence of imprisonment for the offence. Usually the court will provide an alternate jail sentence in case the fine is not paid
  103. 103When CAN'T a fine be implemented under s. 734 of the Criminal Code?1) If the offender is a corporation (this is s. 735)
    2) If on top of an absolute discharge, conditional discharge, or a suspended sentence.
  104. 104If there is no required minimum fine, when can a court impose a fine?Only after the court is satisfied that the offender has the ability to pay, or is eligible for the fine option program (established under s. 736)
  105. 105What is the fine option program?Under s. 736, the fine option program allows the offender to discharge a fine by performing certain work over a period of two years
  106. 106Under s. 734.1, what are the required details for an order for a fine?1) the amount of the fine
    2) The manner in which it is to be paid
    3) the time within which it must be paid
    4) any other order respecting the payment of the fine where appropriate
  107. 107Under s. 787, what are the maximum amounts of fines?Summary conviction (Person): $5000
    Summary (Corporation/Organization): $100,000
    Indictable conviction: Unlimited
  108. 108What is restitution? (s. 737.1 to 741.2)A sentence that requires the offender to compensate the victims for any loss or injury arising out of the commission of the offence.
  109. 109What are the circumstances that restitution may be ordered? (s. 738)What are the circumstances that restitution may be ordered? (s. 738)
  110. 110What are pecuniary damages? small claims again ughAn amount of money to compensate for actual and calculatable losses
  111. 111When is restitution available as an option in sentencing?It is available in addition to ANY other sentence that has been imposed, including a discharge
  112. 112What is forfeiture? (s. 4902.1 to 490.9)Offence-related property that is forfeited. There are two kinds:
    1) Proceeds of crime
    2) Property
  113. 113What is required to have a forfeiture order granted in a sentence?There must be an application made to the Attorney General, and it generally occurs after a finding of guilt
  114. 114What were these provisions of forfeiture intended to deal with?1) Criminal Organizations
    2) Any indictable offences committed under the code
    3) The Controlled Drugs and Substances Act
  115. 115When an accused is charged with a designated offence, and is either dead or absconded, when can a forfeiture order be made by the judge?When an accused is charged with a designated offence, and is either dead or absconded, when can a forfeiture order be made by the judge?
  116. 116What is the victim surcharge? (s. 737)Everyone who has been convicted of a criminal offence or received a discharge under the Code or the Controlled Drugs and Substances Act shall pay (in addition to any other punishment) to help develop and provide programs, services and assistance to victims of crime.
    Can also be for provincial offences for non-parking fines imposed under the Provincial Offences Act
  117. 117How much is the victim surcharge?30% of any fine imposed on an offender.
    If no fine imposed, $100 for a summary conviction or $200 for an indictable offence
  118. 118Can a victim surcharge be dismissed?Yes, under Bill C-28. Only if it causes undue hardship to the offender to pay it
  119. 119What is a conditional sentence of imprisonment (s. 718 to 718.2)Essentially permitted to serve the sentence out of custody
  120. 120When is Imprisonment used?Only for the more serious offences or for repeat offenders.
    Maximum period of imprisonment:
    Summary: 6 months
    Indictable: Refer to provisions that created the offence (Varies)
  121. 121Where are sentences served (regarding incarceration)?< 2 years - Provincial Correctional Facility
    > 2 years - Federal correctional facility (Penitentiary)
  122. 122What is dead time? (s. 719(3))Credit for the period of time that an offender spends in pre-trial custody (usually a 1:1 ration, but can be increased to 1.5:1 if allowed)
  123. 123What is an intermittent Sentence? ( s. 732)A jail sentence that is served in small blocks of time instead of all at once
    Only available if offender is sentenced to 90 days or less
  124. 124How are multiple sentences served?1) Consecutive sentencing
    2) Concurrent sentencing
  125. 125What is a consecutive sentence?A sentence in which the time that is actually spent in custody is the sum of all sentences, and the sentences are served one after another
  126. 126What is a concurrent sentence?A sentence in which the time that is actually spent in custody is determined by the longest sentence, and the sentences are served at the same time
  127. 127What is a long-term offender?A person who has been convicted of a serious personal injury offence that is listed as a designated offence under s. 742 of the code, and has at least two previous convictions for a designated offence and was sentenced to two or more years for those convictions.
  128. 128How is a long-term offender determined? (s. 753.1(1))How is a long-term offender determined? (s. 753.1(1))
  129. 129What is required to determine a dangerous offender?1) Crown makes an application for finding that an offender is a dangerous offender
    2) An application for a 60 day psychiatric assessment (requires approval by Attorney General)
  130. 130When can an offender be found to be a dangerous offender?1) Court must be satisfied that he constitutes a threat to the life, safety, or physical or mental well-being of other persons by reason of a repetitive, persistent aggressive or brutal behavior
    2) Specific to sexual assault offences - offender has shown a failure to control their sexual impulses with the resulting likelihood of causing injury, pain or evil to other persons
  131. 131How long is a sentence for persons declared a dangerous offender?They receive an indeterminate period - no fixed day for release.
    They become eligible for full parole after serving 7 years of their sentence - the Parole Board of Canada reviews the case every two years after the 7 years if the offender is not granted parole at first.
  132. 132What is Parole? (Corrections and Conditional Release Act)The release of an offender from custody before the sentence has been fully completed; subject to various conditions
  133. 133What is the criteria for granting parole? (S. 102 of the CCRA)(a) the offender will not, by reoffending, present an undue risk to society
    before the expiration according to law of the sentence the offender is serving;
    and
    (b) the release of the offender will contribute to the protection of society
    by facilitating the reintegration of the offender into society as a law-abiding
    citizen.
  134. 134What are the types of parole?1) Temporary Absence
    2) Day parole
    3) Full Parole
    4) Statutory Release
  135. 135What is temporary absence?Only for a specific purpose - specified function, medical attention or therapy, spending time with family, performing community service, etc.
    Could be escorted or unescorted (max-security offenders not eligible for unescorted)
  136. 136What is day parole?Allows the offender to leave for a specified period of time before returning to prison or a halfway house for the night.
    <2 years - eligible after serving 1/6th of sentence
    >2 years to life - Available 6 months before becoming eligible for full parole
    Life sentence - 3 years before becoming eligible for full parole
  137. 137What is full parole?The offender is permitted to spend the remainder of their sentence in the community under the supervision of a parole officer
  138. 138When are offenders eligible for full parole?Most - After serving 1/3rd of their sentence, or 7 years (whichever comes first)
    For 2nd degree murder - between 10-25 years
    For first-degree murder - only after 25 years of their sentence
  139. 139What is a record suspension?An order granted by the Parole Board of Canada that permits a qualifying offender to have a criminal record separated and kept apart from other criminal records;
    Formerly called a pardon
  140. 140What are the limits of a record suspension?What are the limits of a record suspension?
  141. 141When is a record suspension not available for offenders?1) if convicted for an offences referred to in schedule 1 of the Canadian Human Rights Act
    2) 3 or more indictable offences each with a prison sentence of 2 or more years
  142. 142When can someone convicted of an offence under schedule 1 of the Canadian Human Rights Act apply for a record suspension?(a) the person was not in a position of trust or authority towards the victim of
    the offence and the victim was not in a relationship of dependency with him or her;
    (b) the person did not use, threaten to use or attempt to use violence, intimidation
    or coercion in relation to the victim; and
    (c) the person was less than five years older than the victim.
  143. 143When does the waiting period for a record suspension begin? (Under the National Defence Act)After the sentence has been completed
    Summary Conviction Offence: 5 years
    Indictable Offence: 10 years
    Fine > $5000 imposed: 10 years
  144. 144When is a sentenced considered completed?• all fines, surcharges, costs, restitution, and compensation orders have been
    paid;
    • a person has served all sentences of imprisonment, including parole and
    statutory release; and
    • a person has satisfied all probation orders.
  145. 145When would the Parole Board of Canada be satisfied to order a record suspension?1. that the applicant has been of good character and was not convicted of a
    criminal or other federal offence during the prescribed waiting period, and
    2. that a record suspension would provide a measurable benefit to the applicant and sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
  146. 146What is the process for applying for a record suspension?What is the process for applying for a record suspension?
  147. 147What case sets out the test to determine whether a verdict is unreasonableR v Yebes
  148. 148What is the case outlined in R v YebesThe test is “whether the verdict is one that a properly instructed jury acting judicially,
    could reasonably have rendered (has a subjective and objective component)
  149. 149Standard of reviewthe manner in which an
    appellate court will evaluate
    the decision of a lower court
  150. 150Error of law-2nd ground under s . 686(1)(a)
    - an error in the interpretation
    or application of law;
    an error of law is understood
    by contrasting it
    with an error of fact, which
    is an error in the resolution
    of the facts in issue
  151. 151What is the standard of review for an error of law?Correctness
  152. 152Correctnessa standard of review that
    permits an appellate court
    to substitute its decision
    for the decision of a lower
    court when, in its opinion,
    the decision of the lower
    court is incorrect or wrong
  153. 153Miscarriage of justiceApplies to those situations where
    there has been no error of law or unreasonable verdict yet it is necessary to allow an
    appeal in the interests of justice.
  154. 154Appealing to SCCGrounds are listed under 691 - 693. Grounds are more narrow, they are basically only available on a question of law.
    AND generally only allowed when there is a dissenting opinion in the prov
    court of appeal on a question of law or when the Court grants leave to appeal
    on a question of law.
  155. 155leave to appealwhere permission to appeal
    is a prerequisite to hearing
    the appeal; the purpose
    is to establish a threshold
    that must be met before
    an appeal can be heard
    by an appellate court
  156. 156What is the curative position s. 686(1)(b)(iii)provides the court of appeal with the power to dismiss an
    appeal where there has been a wrong decision that is based on law if the court “is of the opinion that no substantial wrong or miscarriage of justice has occurred.”
  157. 157The (2) situations which the Crown can establish that there was no substantial wrong or miscarriage of justice1. When the error is harmless.
    2. Where the evidence against the accused is so overwhelming that even if an
    appeal succeeded and a new trial was ordered, the result would be the same.
  158. 158Sentence appealsThe accused can choose to appeal the sentence alone or appeal both the conviction and sentence.
    s. 675(1)(b) permits the
    accused to appeal the sentence passed by the trial court.
  159. 159Crown appealss.676
    The Crown can only appeal a verdict of acquittal or a verdict of not criminally responsible on
    account of mental disorder on any ground that involves a question of law alone.
  160. 160(3) situations where an error of law can occur when assessing facts as they apply to the law (R v Morin)1. trial judge erred as to the legal effect of undisputed or found facts
    2.trial judge misdirects themselves with respect to the relevant evidence
    3. reasons of the trial judge demonstrate a failure to consider all evidence
  161. 161What should a person who wishes to launch an appeal do?First complete a notice of appeal in
    either form A or form B.
    Form A: notice of appeal for inmate appeal (used if self-rep)
    Form B: notice of appeal or application for leave to appeal (used for all other appeals)
  162. 162RequisitionAppellant has 14 days following the filing of the notice of appeal to requisition
    the delivery of various documents from the trial court to the registrar of the court of
    appeal
  163. 163Appeal BookA book that contains all
    of the documents that
    are necessary for the
    hearing of an appeal by
    an appellate court
    Rule 14(1) sets out the contents of the appeal book
  164. 164What documents must the appellant serve on the opposing party1 copy of the appeal book
    1 copy of the transcript, and
    1 copy of the appellant’s factum,
    -must file proof of service of these documents
  165. 165Certificate of Perfecting and SchedulingAfter the appeal has been perfected, the appellant must file 2 copies of a certificate
    of perfection with the registrar, stating that the appeal book, transcript, and appellant’s
    factum have all been served and filed and that the transcript is complete
  166. 166Summary conviction appealA defendant’s rights of appeal are much broader than those of
    a person who was tried by indictment. Section 813(a) can appeal:
    (i) from a conviction/order
    (ii) against a sentence passed on him, or
    (iii) against a verdict of unfit to stand trial or NCR
  167. 167trial de novo s.822(4)a form of appeal where
    the appellate court holds
    a new trial without any
    regard to the first trial; the
    appeal essentially takes
    the form of a completely
    new trial, as if the previous
    trial had not occurred
  168. 168Appeal Routes in OntarioAppeal Routes in Ontario

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