Criminal Law and the Criminal Justice System CRM 2300B Fall 2024 PDF

10/31/2024 Criminal Law and the Criminal Justice System CRM 2300B Fall 2024 Week 9 1 The judicial process in criminal cases When a person has been charged with a crime, their case will be tried to determine i...

10/31/2024 Criminal Law and the Criminal Justice System CRM 2300B Fall 2024 Week 9 1 The judicial process in criminal cases When a person has been charged with a crime, their case will be tried to determine if they are guilty or innocent of the crime. Even though they have been charged, they are presumed to be innocent until found guilty. 2 The judicial process in criminal cases These are the steps of the judicial process in criminal cases from the police investigation to the end of the trial. The process may take several months or even a few years depending on the case. 3 1  10/31/2024 Police powers A person can file a complaint with the police if they believe they have been a victim of a crime or are a witness to a crime The police will then decide whether or not to investigate. The police will investigate, without any complaint filed, if a person is caught committing a crime. 4 Police powers The investigation’s period always depends upon the complexity and the situation of the case. Once the investigation has been completed, the police can arrest a person if they have reasonable grounds to believe that they committed a criminal offence. After their arrest, they can release or keep the accused detained. 5 Police powers If the person is under the age of 18, they have the option to apply extrajudicial measures against them. These measures are aimed to make sure they answer for their actions apart from the judicial system, for example by volunteering for a community organization. 6 2  10/31/2024 After they are released If the police decide to release the accused, they may also: Give them an appearance notice before the judge in court; or Have them sign a promise to appear before a judge, and then give them a copy (this promise can include conditions to comply, for example not using drugs or alcohol). 7 After they are released The documents all indicate where and when they must attend court before the judge— this part is called an appearance. If the police do not give them any documents when they are released, or if they are not formally arrested, they may receive an appearance notice later, stating where and when they must attend court 8 Assessment of the investigation report by the prosecuting attorney After the arrest, the police officers submit the following to a criminal and penal prosecutor: A report investigation The evidence gathered during the investigation A request to initiate legal proceedings (a prosecution) 9 3  10/31/2024 Assessment of the investigation report by the prosecuting attorney The prosecutor assesses these documents. They must decide whether criminal charges are laid or not. To do so, the prosecutor bases their decision on the policies of the director of criminal and penal prosecutions. 10 Assessment of the investigation report by the prosecuting attorney When they decide to lay charges against a person, the prosecutor considers: The evidence available The opportunity to prosecute in the public interest: the public interest means, for example, to ensure safety of the population 11 Assessment of the investigation report by the prosecuting attorney The best interests of victims and the population Witness protection Respect of fundamental rights, such as the presumption of innocence 12 4  10/31/2024 Assessment of the investigation report by the prosecuting attorney The prosecutor lays charges only if they believe they can convince a jury reasonably informed in law of the person’s guilt. If the prosecutor accuses a person, they submit a formal denunciation, which lists the alleged offences for each count they are alleged to have committed. 13 Assessment of the investigation report by the prosecuting attorney This is then submitted to a justice of the peace, who must sign it in order to charge the person formally. If no charges are laid against the person, the prosecutor may apply: A non-judicial measure to their case, in other words, give them a warning (applies only to certain criminal offences) 14 Assessment of the investigation report by the prosecuting attorney An alternative measure (or extrajudicial sanction) if the person is over 18 (applicable only to certain offences) An extrajudicial sanction, if the person is under the age of 18 (outside the justice system): for example, to volunteer for a community organization. 15 5  10/31/2024 Assessment of the investigation report by the prosecuting attorney The prosecutor may, if the evidence is insufficient, decide to drop the charges or request a further investigation. The delay between the moment the police refer the file to a prosecutor and the moment the prosecutor decides to lay charges depends on: 16 Assessment of the investigation report by the prosecuting attorney The evidence the prosecutor has to assess (quantity, type of evidence, complexity levels) Further investigation that the prosecutor might request of the police 17 First appearance If the police keep the person in detention after their arrest, they will appear before the judge within 24 hours or as soon as practicable. If the police released the person after their arrest (ROR), they will appear before the judge at the time and place indicated in the document they received. 18 6  10/31/2024 First appearance The appearance always begins with a reading of the charges laid in the denunciation document. 19 Interim release hearing If they are held in custody until their first appearance, the judge will hold a hearing to determine if they are to remain in custody until their trial or if they can be released. This hearing is called a bail hearing. 20 Interim release hearing The judge must hold the hearing not more than 3 days after their first appearance, except if the accused consents to a longer period. If the judge decides they are not to be released, they will remain in custody during the trial. At any point during the judicial process, the judge may amend their decision. 21 7  10/31/2024 Grounds for continued custody The judge may remand the accused to custody because of the following reasons: They may fail to appear before the judge for the next step in the judicial process Custody is necessary in order to maintain public confidence in the judicial system The safety of the population may be jeopardized if they are not detained 22 Grounds for continued custody Regarding the last reason, the judge believes that the person may: Commit further offences Destroy evidence Importune the victim or witnesses 23 Conditions of release The judge may order a person released under certain conditions. Depending on the offence with which they are charged, the conditions may require that the accused: Remain at a fixed address Not contact the victim 24 8  10/31/2024 Conditions of release Not consume or possess alcohol or drugs Not possess a weapon Not drive a vehicle Maintain good conduct and not disturb the peace Attend court when required 25 Conditions of release They must comply with the conditions until the end of their trial. Breaching conditions constitutes a new offence and the accused may be returned to custody, or new charges laid. They may also be required to post bail. This could be an agreement with the accused or specific financial conditions. 26 Financial conditions (Bail) The judge may require that the accused post bail to guarantee that they will comply with the conditions of release and attend court when required. Depending on what the judge orders, they will be required to: Deposit the amount of the bail at the court office Promise to pay the amount 27 9  10/31/2024 Financial conditions (Bail) The promise to pay may be made by another person, who becomes their “surety”. This may be a family member or a friend. If they fail to respect their bail conditions, the amount is confiscated. Otherwise, it will be returned to the person who paid it once the judicial process is over, regardless of whether they are found guilty or acquitted. 28 Disclosure of evidence Before the trial, the prosecutor must disclose all the relevant evidence held against the accused. This is called the disclosure of the evidence. 29 Disclosure of evidence This means that they will receive a copy of the following elements from the police investigation: Witness statements Police reports Photos Video or audio recordings, etc. 30 10  10/31/2024 Disclosure of evidence The prosecutor must also disclose all the other evidence gathered that will not be used at trial, regardless of whether it tends to show guilt or innocence of the accused. In general, the evidence is disclosed at the accused’s first appearance, but it may be disclosed before or after they appear. 31 Disclosure of evidence Based on the disclosure of evidence, the accused can: Plead guilty and immediately receive their sentence Plead not guilty: the judge will then set a date for a trial or a next hearing before a judge 32 Disclosure of evidence Request to postpone their plea at a future date. For indictable offences, they will have to choose a trial: Before a judge only Before a judge and a jury 33 11  10/31/2024 Negotiated settlements (plea-bargain) Once an accused has assessed the evidence against them, they may choose to negotiate a settlement, by meeting privately with the prosecutor accompanied by their lawyer. The settlement must then be approved by a judge. 34 Preliminary inquiry If a person is charged with a serious crime such as murder, a preliminary inquiry will be held before their trial if requested by the accused or their lawyer. This inquiry is held to establish whether the evidence is sufficient to go to trial. 35 Preliminary inquiry After the preliminary inquiry, the judge determines if the accused will stand trial for each charge. Some charges may be dropped, and others may be added based on the results of the preliminary inquiry. 36 12  10/31/2024 Trial A criminal trial occurs when an accused pleads not guilty to charges laid against them. In criminal law, trials are held before the public, with some exceptions. 37 Trial There are two parties are involved in a trial: The prosecution, represented by the criminal and penal prosecutor, on behalf of the State The defence lawyer, or the accused person if they choose to represent themself. 38 Trial The trial is a hearing for which the prosecutor has to convince the judge beyond a reasonable doubt that the accused is guilty. The prosecutor will attempt to show that the accused committed the offence charged, for example by: 39 13  10/31/2024 Trial Calling witnesses, including the victim, if necessary, along with police and expert witnesses Presenting physical and documentary evidence 40 Trial The accused is not required to give evidence, testify, or present witnesses However, they may do so to raise a reasonable doubt regarding their guilt. If they decide to testify, the prosecutor will be able to cross-examine them. Both the prosecutor and the defence attorney can cross-examine the witnesses presented by the other party. 41 Trial Once the evidence has been presented, the defence attorney and the prosecutor will make their closing submissions. This stage in the trial gives them an opportunity to: 42 14  10/31/2024 Trial Highlight the key points in the case Present their arguments, based on legal reasoning, to show guilt or innocence. At any moment during the trial, the accused can plead guilty to all charges against them or some of the charges against them. 43 The judgement (verdict) A trial before a judge only At the end of the trial, the judge must decide if the accused is guilty of each charge brought against them. They may be found: Not guilty: they are acquitted of the charges Guilty: the judge will determine the appropriate sentence (prison, fine, community projects, etc.) 44 The judgement (verdict) A trial before a judge only They may be found guilty on some charges, and not guilty on others. In addition, the judge may find them guilty of a crime of lesser importance than the original charge. The judge may announce the judgment immediately or takes time to consider it at more length. It may be given orally or in writing. 45 15  10/31/2024 The judgement (verdict) A trial before a judge and jury If the trial is held before a jury, the jurors listen to the judge’s instructions and then withdraw to decide on a verdict of guilty or not guilty. If the jury finds the accused guilty, the judge determines then the sentence. 46 The judgement (verdict) Verdict of not criminally responsible If the matter is raised, the judge or the jury can return a verdict of not criminally responsible for mental disorders. If it happens, the case will be referred to the Review Board for mental disorders of the province where the accused was charged. 47 The judgement (verdict) Verdict of not criminally responsible To be found not criminally responsible, evidence proving mental disorders must be presented before the Tribunal, including expert witness testimony. 48 16  10/31/2024 Sentence The judge may sentence the accused: As soon as they plead guilty As soon as they are found guilty However, sentencing normally takes place at another hearing. 49 Sentence In the meantime, the judge may hold a hearing at which the prosecutor and defence attorney can submit: Relevant evidence to help the judge decide the sentence Observations on the sentence the judge should apply 50 Sentence They can also call witnesses, including the victim, and expert witnesses who can provide information to help the judge determine the sentence. 51 17  10/31/2024 Sentence The judge may ask: A probation officer to prepare a presentencing report A youth delegate to prepare a pre- decision report, a specialist with the sexual offenders of Child and youth protection centre if the accused are under 18 years old 52 Sentence These documents will focus on the offender’s personality and criminal record, among other things. If the victim has completed and submitted a victim impact statement, the judge must also take into account their physical and mental injuries and financial losses. 53 Objectives of the sentence The judge must render a sentence that is fair and reasonable and proportional to the nature and gravity of the offence committed. The purpose of the sentence is to: Protect society Denounce unlawful conduct Deter other people from committing offences 54 18  10/31/2024 Sentence The judge may choose a sentence that will assist in the offender’s rehabilitation. They may also be required to provide reparation for the harm done to the victim, for example by paying an amount of money as compensation. When deciding the sentence, among other things, the judge will consider: 55 Sentence The judge may choose a sentence that will assist in the offender’s rehabilitation. The circumstances of the crime Its severity The accused’s degree of accountability The consequences of the crime on the victim 56 Appeal If the offender considers that the judge has made an error, they may appeal the judgment. The prosecutor may also appeal the judgment. The defence, like the prosecution, have 30 days after the date of the end of the trial to appeal the judgment. 57 19  10/31/2024 Appeal If the Court of Appeal agrees to hear the case, they may confirm, amend or strike down the judgment, or order the holding of a new trial. It may take several months between the date of the end of the trial and the decision rendered by the Court of Appeal. 58 Modes of participation in crime and inchoate offences Chapter 7 deals with two major issues: 1. The various routes by means of which an individual may become a party to a criminal offence; and 2. The inchoate (or uncompleted) offences of counseling, attempt and conspiracy. 59 Modes of participation in crime and inchoate offences Section 21(1) of the Criminal Code provides that an accused person may become a party to a criminal offence when he or she actually commits the offence (thereby becoming the “principal”) or when he or she aids and/or abets another person in the commission of the offence concerned. 60 20  10/31/2024 Modes of participation in crime and inchoate offences The courts have ruled that, in exceptional circumstances, an accused person will be considered to have “actually committed” an offence even though he or she was not physically present at the time – provided that the Crown can establish that the accused person acted through an “innocent agent.” 61 Modes of participation in crime and inchoate offences The concept of aiding the commission of an offence by another person involves the notion of actively providing assistance to that individual, whereas the concept of abetting involves the notion of instigating, urging, or encouraging the commission of the offence in question. 62 Modes of participation in crime and inchoate offences The Crown must prove that the person accused of aiding and/or abetting actively rendered assistance to, and/or encouraged, the principal in the commission of the offence (actus reus) – see Dunlop and Sylvester (1979): gang rape. 63 21  10/31/2024 Modes of participation in crime and inchoate offences Furthermore, it must be established that the accused person intended to render such assistance or encouragement (mens rea). Mere passive acquiescence in the commission of an offence or mere presence at the scene of the crime do not, per se, constitute aiding and/or abetting. 64 Modes of participation in crime and inchoate offences However, where an accused person is under a legal duty to act (e.g., a police officer in charge of a lock up) and fails to do so, then this may be considered to be aiding and/or abetting – provided that the failure to act is accompanied by the necessary intent to provide assistance or encouragement to the principal. 65 Modes of participation in crime and inchoate offences It is possible that an accused person may aid and abet another person to commit a particular offence but be convicted of a different offence than the principal. 66 22  10/31/2024 Modes of participation in crime and inchoate offences For example, the principal may be convicted of murder but the accused person who aided and/or abetted the principal may be convicted of manslaughter because he or she lacked the specific intent required for murder. 67 Modes of participation in crime and inchoate offences When the Crown asserts that the accused person is a party to a crime on the basis of having aided and/or abetted the principal, it is not necessary to prove that the accused knew the precise details of the principal’s plans. 68 Modes of participation in crime and inchoate offences The Crown merely has to establish that the accused was aware of the general type of crime that the principal intended to commit. Section 22 of the Criminal Code stipulates that an individual who counsels another person to commit offence will become a party to that offence if it is ultimately committed. 69 23  10/31/2024 Modes of participation in crime and inchoate offences An accused person may escape liability under section 21(2) of the Criminal Code by asserting that the part or parties who actually committed the offence(s) in question went beyond the scope of the “common intention.” 70 Modes of participation in crime and inchoate offences In addition, an accused person may be absolved of criminal responsibility under section 21(2) by communicating – in a timely and unequivocal fashion – their intention to withdraw from the “common intent.” 71 Modes of participation in crime and inchoate offences Section 23(1) of the Criminal Code defines the crime of being an accessory after the fact to a criminal offence committed by another person. 72 24  10/31/2024 Modes of participation in crime and inchoate offences The Crown must prove three elements in order to obtain a conviction under section 23(1): 1. Knowledge that a crime has been committed; 2. The desire to help the offender to escape; and 3. A positive act or omission intended to enable the offender to evade capture. 73 Modes of participation in crime and inchoate offences The second part of the chapter focuses on the inchoate offences of: a) Counseling b) Attempts c) Conspiracy 74 Modes of participation in crime and inchoate offences Liability for counselling an offence that was not committed is defined by section 464 of the Criminal Code. Section 22(3) states that, for the purposes of the Criminal Code, the word “counsel” includes “procure, solicit or incite.” 75 25  10/31/2024 Modes of participation in crime and inchoate offences Traditionally, it was assumed that the only form of mens rea that would be appropriate for the offence of counselling was an actual intention that an offence or offences be committed. 76 Modes of participation in crime and inchoate offences However, the Supreme Court of Canada in the Hamilton (2005) case has added extreme recklessness as an alternative form of mens rea that will be sufficient for conviction of counselling an offence that was not committed. 77 Modes of participation in crime and inchoate offences In fact, if recklessness is to be relied on as satisfying the mens rea requirements, the Crown must prove that the accused person was subjectively aware of, and consciously disregarded, the risk intrinsic in the counselling. The starting point for the analysis of attempts is section 24 of the Criminal Code. 78 26  10/31/2024 Modes of participation in crime and inchoate offences In interpreting this section, Canadian courts have emphasized that the mens rea requirements for a criminal attempt may only be fulfilled by an actual intention to commit a crime. 79 Modes of participation in crime and inchoate offences This means that the mens rea requirements for attempts may be even more onerous, from the Crown’s point of view, than the mens rea requirements for the completed offence itself. 80 Modes of participation in crime and inchoate offences Under the terms of section 24(2) of the Code, the trial judge must decide, as a matter of law, whether or not the actions of the accused are sufficiently proximate to the completed offence to justify conviction of attempt. 81 27  10/31/2024 Modes of participation in crime and inchoate offences If the actions of the accused are considered to be too “remote” from the completed offence, then there may be no conviction of attempt. 82 Modes of participation in crime and inchoate offences However, there is no simple test to determine whether or not the actus reus of attempt has been committed. Each case must turn on its own special facts and particular attention must be paid to the specific type of crime that the accused was trying to commit. 83 Modes of participation in crime and inchoate offences Finally, Section 24(1) of the Criminal Code clearly states that the accused person may be convicted of an attempt ‘‘whether or not it was possible under the circumstances to commit the offence.” 84 28  10/31/2024 Modes of participation in crime and inchoate offences An accused person may be convicted of an attempt to commit any offence known to criminal law, whether or not it would have been impossible to complete the offence because of factual or legal obstacles to the accused’s ultimate success. 85 Modes of participation in crime and inchoate offences However, there can be no liability for criminal attempt where the accused seeks to commit a crime that is not, in fact, known to the criminal law – a so-called “imaginary crime.” 86 Modes of participation in crime and inchoate offences The final section of the chapter concerns the inchoate offence of conspiracy. Although section 465 of the Criminal Code provides for the punishment of those persons who conspire to commit an indictable or summary conviction offence, it does not contain a definition of the term, “conspiracy”. 87 29  10/31/2024 Modes of participation in crime and inchoate offences Even though there must be a common purpose in order to establish a conspiracy, it is not obligatory for the Crown to establish that there was any direct communication between the co-conspirators: indeed, both “chain” and “wheel” conspiracies may well meet the requirement that there be a common purpose. 88 Modes of participation in crime and inchoate offences In certain circumstances, the vendor and purchasers of illicit drugs may be found to have participated in a conspiracy to traffic in illicit drugs: where a buyer and seller exchange significant amounts of illicit drugs and cash, then it is reasonable to assume that they have a common purpose to traffic in the drug concerned. 89 Modes of participation in crime and inchoate offences The Crown must prove that there was an intention on the part of the alleged co- conspirators to put their common design into effect. Where one of two alleged co-conspirators does not intend to implement their criminal purpose, then there can be no conspiracy. 90 30  10/31/2024 Modes of participation in crime and inchoate offences However, provided there are at least two individuals who intend to implement the common design, then the court may find that there was indeed a conspiracy – even though there may have been some other parties who would escape liability for the crime of conspiracy because they never intended to put their agreement into effect. 91 Modes of participation in crime and inchoate offences Reference is made, in this connection, to the rule that husband and wife may not be convicted of conspiring with each other, although they may both be convicted of conspiring with other individuals to commit a crime. 92 Modes of participation in crime and inchoate offences The chapter concludes with a discussion of the requirement that the Crown establish that the common purpose at the centre of the alleged conspiracy is the intention to commit a crime (either an indictable or a summary-conviction offence). 93 31  10/31/2024 Modes of participation in crime and inchoate offences However, the common purpose must be to commit a crime known to the law: as is the case with attempt, one cannot be convicted of a conspiracy to commit an “imaginary crime.” 94 32