D. CRIMINAL PROCEDURE IN A NUTSHELL
Lecture 1:
D.
CRIMINAL PROCEDURE IN A NUTSHELL -
A.
Ages 12-17 is considered youth – date of offence is important, not the time of arrest. Seeing a significant decline in charges in youth cuz of the YCJA Open custody – like a group home, you can walk out the door Secured – jail
Classification of Offences
1* 2* 3* 4* 5* 6* 7*
(1) Summary Conviction: less serious s.787: - $2,000 and/or 6 months jail some exceptions: eg., death threats, 18 mos. jail s.735(1)(b) if ∆ is a corporation fine can be up to $100,000 6 month limitation – cant be charge for an offence after 6mnths lawyer can appear as agent trial is in Court of Justice appeal is to Superior Court, and then to Court of Appeal No Jury choice
(2)
Indictable (Felony) s.743:
8* 5 years jail unless otherwise provided (diff for youth) 9* s.735(1)(a): no maximum fine if corporate accused 10* No limitation on when person can be charged 11*Must attend court personally, or by designate 12* Accused has election re mode of trial 13* Appeal is to Court of Appeal 14* Choice of jury trial, judge, or both (3)
Hybrid (Crown election) offences) • If it has been more then 6 months, crown must proceed by indictment • If crown wants to avoid a jury trial they may also proceed by indictment
“Super-summary” offences: crown election offences (such as Sexual Assault) where the max jail term on a summary election is 18 mnths instead of 6 mnths. A cross between the 2 Crown chooses whether to charge as summary or indictable – so crown can choose if they want a higher sentence or lower
B.
Court structure in Ontario and elsewhere in Canada
Ontario Court of Justice (OCJ, aka “Provincial Court”; Judges appointed by provincial government) – sits in various towns and cities across Ontario; includes Youth Justice Court. - Deals with adults and youths - Hear nothing but criminal cases, sometimes CAS cases - No possibility of Jury trial. Vast majority of cases are dealt with in Prov Court. If Crown wants to avoid jury they can choose summary offence. - Can appeal to SCJ only if prosecuted under summary offence Superior Court of Justice (SCJ, federally appointed, in some provinces referred to as “Queen’s Bench”) – sits in County seats across Ontario - Deals with criminal cases, civil, and family court - Judge alone or can be Judge & Jury 1:17 Court of Appeal for Ontario (OCA, federally appointed) – sits in Toronto (in other provinces, sits in provincial capital except Québec, where the QCA also sits in Montréal - Just Judge Supreme Court of Canada (SCC, 9 federally appointed judges, sits in Ottawa)
S u p re m e C o u rt o f C a n a d a C o u r t o f A p p e a l fo r O n ta r io O n ta r io C o u r t o f J u s tic e A d u lt c o u r t
Y o u t h J u s t ic e C o u r t
S u p e r io r C o u r t o f J u s t ic e C iv il a n d C r i m i n a l S o m e t im e s y o u t h c o u r t
U n i f ie d F a m i l y C o u r t
OCofJ – Judges appointed by Provincial government SCofC hears about 150 cases a year Preliminary Inquiry: Purpose is to determine if there is enough evidence to put accused on trial. Crown only has to show that there is some evidence and that a jury could possibly find defended guilty. – Basically to find out the evidence Crown has on defendant. Used for discovery to find out more about the case.
C.
Compelling Attendance in Court
Citizens Arrest:
s.494(1): any person may arrest without warrant… 15* a person whom he finds committing an indictable offence 16* a person who is believed (on reasonable grounds) to have committed a criminal offence, if that person is escaping from people who have lawful authority to arrest - Cant arrest someone committing a summery offence or hybrid offence …prostitution or public nuisance are summary offences
s.494(2): property owner (or someone authorized by owner) may arrest person committing an offence on or against his property (for any type of offence) s. 494(3):
arrested person must be delivered to a peace officer forthwith
Police Arrest: s.495: police may arrest without warrant a person who has committed or is about to commit an indictable offence 17* may arrest a person who he finds committing a criminal offence s.495(2): can’t arrest without warrant re hybrid or summary conviction offences unless it is necessary to get the person’s ID, preserve evidence or prevent the offence from being committed again, and it is necessary to ensure that the person attends court s.496: Appearance Notice: where officer does not arrest person, he can issue an appearance notice (in most cases s.509: other way of compelling appearance is by way of summons s.497: where officer makes arrest without warrant for minor offences, he must release the person on summons or appearance notice ASAP unless necessary to detain under the circumstances s.499: Promise to appear: where arrest made with warrant (and detained), officer-in-charge may release on PTA s.503: where person arrested is detained, he must be taken before a JP within 24 hours D.
Bail (ss.515 ff. and 522 [murder]) 18* Undertakings (by JP or officer-in-charge) - If accused is released undertaking – promises to abide under certain conditions.. Surety – a responsible adult who can vouch for defendant In canada there’s no bail bonds…person has to get money on their own.
Most Rec are without surety and without deposit. 19*
-
Show cause hearing (bail hearing) 20* 3 Grounds for Detention: 1. Primary - Flight risk – Crown will try to show person wont show up John Howard society – there for ppl who don’t have anyone to vouch for them Or have person check in at police station Cash Bails 2. Secondary Ground- Risk to the public – could even be in domestic abuse cases 3. Tertiary: Administration of Justice About the public’s confidence in Justice System. Court can keep this person if for ex. Someone is charged with a very violet crime which is clear he will do time for.
Documents that the accused is released on: 21* Recognizances: a promise that is backed up with money 22* 4 types: 1. With surety 2. Without surety 3. With deposit 4. Without deposit • Undertaking: a promise to abide by certain conditions Reverse onus: • If murder, the accused had the burden of convincing the judge they should be released • If accused had picked up a new charge while awaiting a hearing then the burden is transferred to the accused E.
Pre-Trial procedures 23* Remands 24* Pre-trial conferences 25* Counsel 26* Judicial 27* Plea Negotiation (Plea bargaining) 28* Preliminary inquiry
F.
Role of Judge (Trier of Law) v. Jury (Trier of Fact)
G.
Trial Procedure, Including the Burden of Proof and Manner of Questioning (1)
Not Guilty plea (doesn’t mean “innocent”)
(2)
Exclusion of witnesses
(3)
Role of Judge and Jury (triers of fact/law)
(4)
Verdicts (a) (b) (c) (d) (e) (f)
Guilty as charged Not guilty Guilty of attempted offence, s.660 Guilty of included offence, s.662(1)(a) Guilty of attempt to commit included offence, s.662(1)(b) Not criminally responsible on account of mental disorder, s.672.34
(5)
Plea of Autrefois convict / autrefois acquit, s.607(1)
(6)
Burden of Proof
(7)
The Presumption of Innocence / Reasonable Doubt
D.
CRIMINAL PROCEDURE IN A NUTSHELL -
A.
Ages 12-17 is considered youth – date of offence is important, not the time of arrest. Seeing a significant decline in charges in youth cuz of the YCJA Open custody – like a group home, you can walk out the door Secured – jail
Classification of Offences
1* 2* 3* 4* 5* 6* 7*
(1) Summary Conviction: less serious s.787: - $2,000 and/or 6 months jail some exceptions: eg., death threats, 18 mos. jail s.735(1)(b) if ∆ is a corporation fine can be up to $100,000 6 month limitation – cant be charge for an offence after 6mnths lawyer can appear as agent trial is in Court of Justice appeal is to Superior Court, and then to Court of Appeal No Jury choice
(2)
Indictable (Felony) s.743:
8* 5 years jail unless otherwise provided (diff for youth) 9* s.735(1)(a): no maximum fine if corporate accused 10* No limitation on when person can be charged 11*Must attend court personally, or by designate 12* Accused has election re mode of trial 13* Appeal is to Court of Appeal 14* Choice of jury trial, judge, or both (3)
Hybrid (Crown election) offences) • If it has been more then 6 months, crown must proceed by indictment • If crown wants to avoid a jury trial they may also proceed by indictment
“Super-summary” offences: crown election offences (such as Sexual Assault) where the max jail term on a summary election is 18 mnths instead of 6 mnths. A cross between the 2 Crown chooses whether to charge as summary or indictable – so crown can choose if they want a higher sentence or lower
B.
Court structure in Ontario and elsewhere in Canada
Ontario Court of Justice (OCJ, aka “Provincial Court”; Judges appointed by provincial government) – sits in various towns and cities across Ontario; includes Youth Justice Court. - Deals with adults and youths - Hear nothing but criminal cases, sometimes CAS cases - No possibility of Jury trial. Vast majority of cases are dealt with in Prov Court. If Crown wants to avoid jury they can choose summary offence. - Can appeal to SCJ only if prosecuted under summary offence Superior Court of Justice (SCJ, federally appointed, in some provinces referred to as “Queen’s Bench”) – sits in County seats across Ontario - Deals with criminal cases, civil, and family court - Judge alone or can be Judge & Jury 1:17 Court of Appeal for Ontario (OCA, federally appointed) – sits in Toronto (in other provinces, sits in provincial capital except Québec, where the QCA also sits in Montréal - Just Judge Supreme Court of Canada (SCC, 9 federally appointed judges, sits in Ottawa)
S u p re m e C o u rt o f C a n a d a C o u r t o f A p p e a l fo r O n ta r io O n ta r io C o u r t o f J u s tic e A d u lt c o u r t
Y o u t h J u s t ic e C o u r t
S u p e r io r C o u r t o f J u s t ic e C iv il a n d C r i m i n a l S o m e t im e s y o u t h c o u r t
U n i f ie d F a m i l y C o u r t
OCofJ – Judges appointed by Provincial government SCofC hears about 150 cases a year Preliminary Inquiry: Purpose is to determine if there is enough evidence to put accused on trial. Crown only has to show that there is some evidence and that a jury could possibly find defended guilty. – Basically to find out the evidence Crown has on defendant. Used for discovery to find out more about the case.
C.
Compelling Attendance in Court
Citizens Arrest:
s.494(1): any person may arrest without warrant… 15* a person whom he finds committing an indictable offence 16* a person who is believed (on reasonable grounds) to have committed a criminal offence, if that person is escaping from people who have lawful authority to arrest - Cant arrest someone committing a summery offence or hybrid offence …prostitution or public nuisance are summary offences
s.494(2): property owner (or someone authorized by owner) may arrest person committing an offence on or against his property (for any type of offence) s. 494(3):
arrested person must be delivered to a peace officer forthwith
Police Arrest: s.495: police may arrest without warrant a person who has committed or is about to commit an indictable offence 17* may arrest a person who he finds committing a criminal offence s.495(2): can’t arrest without warrant re hybrid or summary conviction offences unless it is necessary to get the person’s ID, preserve evidence or prevent the offence from being committed again, and it is necessary to ensure that the person attends court s.496: Appearance Notice: where officer does not arrest person, he can issue an appearance notice (in most cases s.509: other way of compelling appearance is by way of summons s.497: where officer makes arrest without warrant for minor offences, he must release the person on summons or appearance notice ASAP unless necessary to detain under the circumstances s.499: Promise to appear: where arrest made with warrant (and detained), officer-in-charge may release on PTA s.503: where person arrested is detained, he must be taken before a JP within 24 hours D.
Bail (ss.515 ff. and 522 [murder]) 18* Undertakings (by JP or officer-in-charge) - If accused is released undertaking – promises to abide under certain conditions.. Surety – a responsible adult who can vouch for defendant In canada there’s no bail bonds…person has to get money on their own.
Most Rec are without surety and without deposit. 19*
-
Show cause hearing (bail hearing) 20* 3 Grounds for Detention: 1. Primary - Flight risk – Crown will try to show person wont show up John Howard society – there for ppl who don’t have anyone to vouch for them Or have person check in at police station Cash Bails 2. Secondary Ground- Risk to the public – could even be in domestic abuse cases 3. Tertiary: Administration of Justice About the public’s confidence in Justice System. Court can keep this person if for ex. Someone is charged with a very violet crime which is clear he will do time for.
Documents that the accused is released on: 21* Recognizances: a promise that is backed up with money 22* 4 types: 1. With surety 2. Without surety 3. With deposit 4. Without deposit • Undertaking: a promise to abide by certain conditions Reverse onus: • If murder, the accused had the burden of convincing the judge they should be released • If accused had picked up a new charge while awaiting a hearing then the burden is transferred to the accused E.
Pre-Trial procedures 23* Remands 24* Pre-trial conferences 25* Counsel 26* Judicial 27* Plea Negotiation (Plea bargaining) 28* Preliminary inquiry
F.
Role of Judge (Trier of Law) v. Jury (Trier of Fact)
G.
Trial Procedure, Including the Burden of Proof and Manner of Questioning (1)
Not Guilty plea (doesn’t mean “innocent”)
(2)
Exclusion of witnesses
(3)
Role of Judge and Jury (triers of fact/law)
(4)
Verdicts (a) (b) (c) (d) (e) (f)
Guilty as charged Not guilty Guilty of attempted offence, s.660 Guilty of included offence, s.662(1)(a) Guilty of attempt to commit included offence, s.662(1)(b) Not criminally responsible on account of mental disorder, s.672.34
(5)
Plea of Autrefois convict / autrefois acquit, s.607(1)
(6)
Burden of Proof
(7)
The Presumption of Innocence / Reasonable Doubt
