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Criminal – LAW 420C – Term 1

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Criminal – LAW 420C – Term 1 Criminal – LAW 420C – Term 1 Intro to Criminal Law - Criminal law is important because: o Interact with concepts of human condition; law prohibits certain conduct by individual o Law reflects society’s collective morality/values o Tension between state action and individual liberties (Charter rights) o Fundamental principles of justice o Learn how crimes and punishments are defined, and defenses to them o Principles of statutory interpretation Criminal Justice System & Criminal Procedure Intro to Criminal Justice System -Criminal laws passed by legislative branch, enforced by executive branch and applied by judicial branch o Exclusive authority for passing criminal law given to Parliament in Constitution: Criminal Code o Drugs are major source of prosecution: Controlled Drugs Substance Act (CDSA) o Criminal laws updated by Parliament to address safety, morality or health concerns in nation - Provincial legislatures have power to pass and enforce laws with prohibitions and penalties, even jail o Regulatory; not criminal offenses (e.g. Highway Traffic Safety Act) o Driving offenses represent continuum (prov to fed); e.g. speeding vs dangerous driving -Enforcement by executive branch: police (municipal and RCMP) and Crown prosecutors o Police detect crime (or it’s reported), form investigation, lay charges, file report with Prosecutor’s office, then Crown prosecutes individual until verdict and sentencing -Judges make laws related to defenses, not offenses (criminal common law); defenses can be in Code -What is a crime? o Statute that includes a prohibition and penalty, enacted to serve public purpose such as peace, order, security, health, morality (SCC) o Any act/omission deemed injurious to public and prosecutable in criminal proceeding -3 stages of Canadian criminal law: 1. 1867-1892: Statutes and common law derived from England 2. 1892: First Criminal Code of Canada enacted (came into force 1893) 3. 1955: Major revisions/modernization to Code (now updated regularly, theoretically) -All criminal offenses are in Code or CDSA o Only remaining offense for judges to determine = contempt of court (specifically not defined) -Aspects of adversarial/accusatory system: 1. Triers of law (judge) and triers of fact (judge or jury) relatively passive but make decision at end o Jury trials: judge gives charge, jury decides what evidence they believe / level of doubt § Jury verdict can only be set aside by declaring mistrial (e.g. tainted evidence) o Judge-only (most): Referees courtroom, hears evidence/ counsel submissions, decides 2. Counsel represents parties and expected to argue their side o Each responsible for martialing evidence and advancing their own case; not required to help the other side 3. Proof beyond a reasonable doubt required o Higher than balance of probabilities (civil standard); not as high as absolute certainty, but closer to certainty 1 o Prosecutor has onus to prove guilt; accused need not prove innocence (right to silence) 4. Trial by jury available for serious cases o Indictable offenses (murder, sexual assault); most offenses are hybrid -Structure and hierarchy of courts: o Levels of courts that hear criminal trials: o Provincial Court of Alberta (Criminal Division) § Judges appointed by provincial legislatures from bar § Hears trials for all crimes but s.469 (murder) o Superior Courts of Alberta (ABQB and ABCA) § Judges appointed by PM with assistance of fed Minister of Justice § Decision from ABCA with dissent = right of appeal to SCC, otherwise seek leave o Federal Court of Canada (trial and appeal division) § Judges appointed federally; deal with all fed laws except Criminal Code & CDSA -Precedent and stare decisis o Decisions of higher courts binding on lower courts; obiter comments not binding but persuasive -Criminal lawyers = prosecutors and defense counsel o Federal prosecutors: CDSA and non-criminal federal statutes (e.g. Food and Drug Act, Fisheries) o Provincial prosecutors: all Criminal Code offenses o Prosecutors have wide range of powers including discretion whether or not to prosecute o Prosecution standard: Reasonable likelihood of conviction (more likely than not) o Crown must consider: what material evidence is likely to be admissible, weight to be given to admissible evidence, likelihood of viable (not speculative) defenses o Prosecutors not seeking conviction but have duty to press case to its natural strength o Public duty to lay before jury what it considers credible evidence relevant to crime o Crown must also consider public interest in favour of and against prosecution o Main differences: Crown must fully disclose evidence/information for case to defense o Defense lawyers must follow rule of law, rules of ethics and rules of evidence; within that, fight as hard as possible for client -R v Nixon (SCC) o Facts: Crown agreed to pursue lesser charge (fine, not criminal), then reneged; defense asked court to force Crown to renew deal (both sides rely on other to keep their word) o SCC provided analysis of Crown’s duties and rights: o Decision to lay or stay charges, take over private prosecution, or accept plea to lesser offense lies solely with Crown (not subject to review absent abuse of process) Overview of Criminal Procedure -3 types of offenses: o Straight indictable (‘felonies’ in US): e.g. murder o Hybrid (crown can elect to proceed summarily or by indictment): e.g. theft o Summary (‘misdemeanors’ in US) -General procedure: o Crime alleged to have been committed o Police investigate (length of investigation varies widely) o Police lay charge (swear information before judge/justice of peace) o Prosecution takes over soon after arrest with Information o For minor offenses, accused can be released on ‘promise to appear’; for major offenses, may be released with conditions or on bail o For 469 offenses (murder), onus on defense to prove why he should get bail 2 o All other offenses; crown must show cause (prove why he shouldn't get bail) o 3 grounds to oppose bail (Crown’s discretion): § Primary - ensure they attend court § Secondary - fear of endangering public or impeding case § Tertiary - release would bring administration of justice into disrepute o Set trial date or choose not too; if evidence strong, may resolve before trial (guilty plea) o If Crown elects indictment, accused has choice between straight to trial or preliminary inquiry o Hearing conducted to determine “Is there any evidence upon which a reasonably instructed jury could convict?” – lower standard than beyond reasonable doubt o Allows both sides to test strengths/weaknesses of case and witnesses o If no sufficient evidence found, judge decides charge(s) must be dismissed o Trial is set; function of Information ends and Crown files indictment o Accused enters plea and election of jury or judge-only is determined o Judge vs jury: strategic choice depending on offense, who judge is, will accused testify o Crown can file direct indictment: no prelim, go straight to trial in superior court -Trial proceeding: o Crown gives opening statement; defense only gives statement if it calls a case later o Jury swears oath to stay impartial and do their best o Crown calls first witness, then following witnesses (all bound by oath) – direct examination followed by cross-examination by defense for each (different rules/strategies for direct vs cross) o All supporting documentation filed and real evidence submitted is brought into Crown’s case o Crown closes case; defense has choice to call or not to call o Accused’s right to silence cannot be used against them to infer guilt o Defense’s case follows same procedure; finishes with “the defense rests” o Both sides give closing arguments (submissions to jury/judge with their theories) o In jury trial, judge gives charge (applicable law, standard of proof, evidence, etc.) o Jury deliberates until reaching unanimous verdict; hung jury results in mistrial o Jury delivers verdict; if acquitted, accused free to go; if convicted, sentencing takes place o Both sides make submissions for proper sentence (sometimes joint recommendation) o 30 days to file notice of appeal to higher court, if losing side believes error of law was made o Vast majority of trials never get appealed Evidence and the Charter Evidence -Crown must prove case beyond reasonable doubt piece-by-piece by introducing evidence -4 general sources of evidentiary rules: 1. Criminal Code 2. Statute/Canada Evidence Act (pertains to evidence for all federal statutes, Criminal Code, CDSA) 3. Common law (judge-made evidentiary rules that evolve with time) 4. Charter of Rights and Freedoms o Charter evidentiary rules are entrenched; take precedence over the other 3 o Some common law rules have taken on constitutional gloss (e.g. common law confessions rule adopted as part of s.7 protections) -To be admissible, evidence must meet 4 qualifications: 1. Relevant to fact in issue 2. Probative value exceeds its prejudicial effect 3 o Probity is essentially synonymous with relevance; highly probative vs speculative o 2 kinds of prejudice: moral (draw conclusion about accused because they are ‘bad person’) and reasoning (process becomes distorted through improper use of evidence) 3. Not excluded under common law or statutory exclusion rule 4. Complies with Charter o Evidence can be excluded at this stage if obtained in unlawful manner by state -Examples of admissible/inadmissible evidence: o Accused’s criminal record is important piece of evidence excluded under 2nd test- extremely morally prejudicial (‘a dog that bites’), and 3rd test- common
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