Megret Criminal Justice Behemoth Joint-Effort Summary

Hi 1Ls!

This summary is a collaboration between 36 students in Professor Megret’s Criminal Justice Course during the 2016-2017 academic year. I would imagine that his course will change drastically from year to year, but hopefully this summary can be somewhat useful in years to come. Each contributor to the summary covered one class/topic, and so the quality, style, and formatting of each contribution will vary—you have been warned! I hope that despite the document’s messy and admittedly overwhelming composition, you will find some use of it—I know it helped a lot of us tremendously come exam time.

Good luck,Jessica Cytryn

DATE: October, 2016

TOPIC: The Critique of Punishment

NOTES:

Types of Critique

Internal perspective: Some critics who are content to work within the existing paradigm of criminal justice (see the system as something that is self-correcting, irreplaceable, occupying natural space within society)

This type of critique becomes part of the system itself External perspective: Those who reach out for much broader

critiques/reforming the whole system. Generally happens at the periphery (among those who are not actually professionally investing in the system e.g. social theorists, philosophers, criminologists, not criminal lawyers),

Note the difference between criminology and criminal law (though criminology is premised on the idea that a concept of crime exists in the first place)

Can trace a historical ‘back and forth’ between the two areas of critique We will focus on the micro-dilemmas of how criminal justice operates, but

don’t forget the broader critique (maintain a guarded distance from the system)

Criticisms

Critiques are marginal (generally defeated) whatever you throw at the system; it tends to stay the same. Critiques force the system to continue re-justifying itself

General critiques often adopt a generalist, universalist stance (not for one specific system, but as a whole) e.g. libertarian critique doesn't say it’s good for the US, but rather the it’s the only just system that should exist anywhere in the world (but this is oblivious to the bias within ‘the provincialism of universalism’, a thin disguise for some particular liberal interests. This vein of critique is rooted in the experiences of people, as opposed to top-down approach.

Waves of critiques (Marxist, critical race, feminist) are eventually absorbed into the system (historical evolution)

So…is the urge abolitionist or reformist?? Or apologetic for the system? Do critiques of criminal justice actually lead to fundamental changes in how we view the system?

A powerful critical agenda cannot merely ask for more criminal oppression (of certain offences, e.g. radical feminist critique of sexual assault), but needs to propose something more

Side-note: Emerging critiques, see the prison as so last century, look to alternative modes of punishment that could replace the role of the prison (e.g. being on offender registries, electronic monitoring, 19th century utopias about controlling crime are almost now technologically within our reach)

Move towards idea of management of behaviour (function of the state isn't to impose moral standards, but to manage safety) **but be aware that prevention can move down the slippery slope of becoming a totalitarian state - this removes all the guarantees of the criminal justice system

Issue of policing and ‘big data’ (all the things we could learn about people through their google searches…) eg. spike in robberies and spike in google searches for house alarms, realize there’s a correlation and have the ability to see things in real time

Movement towards preventative action (can you go to prison for being a risk?) Punishment often followed by the idea that you can only be release once you’re found to not be a danger to be society (eg. sex offenders in the states who are in prison long after their sentence is up)

Class Discussion: Significant Critiques of the System

Hypocrisy of a system that sees itself as being rational, equally applied to everyone, a self-perpetuating cycle (self-fulfilling prophecy)

Bothered by question itself, or the idea that the system lends itself to being critiqued according to very specific categories, which prevents seeing the overlap (are you asking for a hierarchy of injustices?)

The law is an expression of power (specifically criminal law - the power to punish people!) implemented by people who come from a certain perspective (lots of scope in the system for prejudice and discrimination )

From feminist perspective: anomaly where women are far less incarcerated than men (though this is only relevant if we’re judging the justice system based on its treatment of perpetrators)

Elements of de-humanization; focus on isolation as a form of punishment, can be seen as dehumanizing torture

Budgetary issues - if we redirected our spending to social programs? Administrative behaviour of judges (should they be elected, salaries?)

READINGS:

Richman, Seldon. “Crime and Punishment in a Free Society”- Emphasizes distinction between crime (against state) and tort (against

individual persons) through historical overview - the system we have know is just a produce of state arrogation and a repudiation of individualism/libertarianism

- Liberty-minded people should reject the government’s exploitation of punishment, and focus on principles of restitution - torts could basically replace crimes in a free society

Huffington Post, “UN Blasts Tory Crime Bill”- UN Committee on Rights of the Child finds that Canada’s Youth Criminal

Justice Act no longer complies with international standards (after Harper government Bill C-10)

- Bill is excessively punitive for children and not sufficiently restorative in nature

- Suggestions: raise minimum age of criminal responsibility, ensure no one under 18 is ever tried as an adult, and reduce social discrimination against aboriginal children, visible minorities, immigrants and children with disabilities

Nirhani, Auandaru, “Policing Slaves Since the 1600’s: White Supremacy, Slavery, and Modern US Police Departments”

- Modern police departments are deeply rooted in some of most repressive colonial institutions if the US

- Traces developments of colonial law enforcement (the Spanish controlling Indigenous slaves, slave patrols in the US, then birth of modern police departments in mid-1800s)

- Motive for modern policing was “peacekeeping” of the “unruly” classes according to Victorian standards of “morals”; often wound up in politics

- 1920s reform era unsuccessfully attempted to create a more “professional” police force (difficult times for working classes = strikes/riots = increase in policing)

- Current police attitudes towards poor communities of color are the same as they were 300 years ago

Simpson, Sally “Feminist Theory, Crime, and Justice”, 1989- An introduction/overview of feminist criminology (*feminism as both a world

view and a social movement, so it can be both analytical and empirical) - Not a single theory: a very diverse set of perspectives and agendas

(collectively share a concern for women’s interests) e.g. liberal feminism, social feminism, radical feminism, WOC

- Feminist methodology/framework can be used in looking at:1. The female offender - what are assumptions about the causes of female

crime? How are female offenders controlled and treated?2. Women victims - reframe the way rape is seen (e.g. study of rape that

concluded it’s not a crime of sex, but rather a tool in the arsenal of men to control women) look at other types of victimizations that are “uniquely feminine”, feminist definition of violence portrays it as a form of social domination, rather than random form of expression

3. The justice system (police, courts, corrections)

Radzinowicz, Leon “Ideology and Crime: The Deterministic Position”- Two positions on crime: crime as product of individual expression, or as

product of expression of society = 2 schools of thought on crime: explain the existence of crime in society, or determine why certain individuals become criminal

- Not mutually exclusive, though often pitted against each other; generally lead to the same deterministic conclusions

- Early use of crime stats made possible a scientific approach to crime as social phenomenon (highlighted the undeniable overriding importance of social factors)

- If it’s all about social factors, where does this leave the doctrine of free will?- Determinism and Crime: crime is a product of society - Positivists: school of criminology born out of Lombroso’s doctrines (start

with observable facts, interpretation leads to conclusion of the “born criminal”)

- Despite general disagreement, still a worthwhile theory in that it emphasizes the need to understand the offender, the treatment of offenders (which led to substantive reform) and reaffirms need to look at social influences on crime

QUESTIONS:

Hallmarks:Transparency,

What are the significant criticisms of the system of punishment?

DATE: October 19th, 2016

TOPIC: Models of Criminal Justice Compared: Authoritarian vs Liberal

NOTES:There has historically existed a tension between authoritarian and liberal justice systems, we can view different systems as existing on a spectrum within these two extremes

Past the point of authoritarianism one finds pure political oppression, perhaps disguised, perhaps not. On the other end of the spectrum there is “perhaps no end for how far you could go towards liberalising the system” though eventually you arrive at libertarianism or restorative justice which both entail the erasure of the Criminal Justice system as we know it.

Totalitarian regimes are essentially not interested in guilt or innocence, the existence of a “criminal justice system” within these regimes is primarily a show; thinly veiled violence. Contrary to this, liberal regimes place great importance on the existence of a strong criminal justice system. Many authoritarian regimes will claim to be liberal, but ultimately there are a few criteria that must be met in order to qualify as such:

- Strong procedural guarantees- Constitutional recourse- Institutional strength- Substantive and procedural rights- Equality of actors within the system

LiberalAuthoritarian

Hallmarks:Secrecy, no widespread knowledge of the law,

READINGS:

Hoefer, Frederick - “The Nazi Penal System” The Nazi penal system may be summarized as follows:

1. Abolition of all constitutional guarantees for freedom of innocent civilians2. Legislation by government decrees3. Creation of new criminal offences4. Increase in punishment severity5. Creation of new punishments6. Dualism of legal and extra-legal punishment7. Toleration of no legislative or judicial independence

Packer, Herbert L. - “Two Models of the Criminal Process” 1. Crime control

- Criminal process guarantees social freedom- Must produce high rates of apprehension and conviction

- A premium is placed on speed and finality- Administrative, almost managerial model of the justice system

- Akin to an assembly line2. Due process model

- Whereas the crime control model was like an assembly line, this one operates like an obstacle course

- Places little trust in extra-judicial fact-finding (police, for example)- Further scrutiny by judges and court at large is necessary

- Stigma and the loss of liberty are the biggest depravations that a government can impose on individuals

- Underlying this system is an idea of equality- Financial equality especially (think means of defence, provision of defence

attorneys) - Systemically present scepticism about the morality and utility of criminal sanctions

- High receptivity towards claims of injustice- With a greater insistence on due process comes a greater need for counsel (procedure

becomes more complex)Institute of Modern Russia. - “The Soviet Legacy: The Impact of Early Bolshevik Law Felt Up to the Present”

- Soviet law was couched in sociological, not legal terms. - Crime was known as socially dangerous acts- Punishments were known as measures of social protection

- If it was not provided for within the law, judges had to find offenses analogous to those in case in order to prosecute the offender

- Courts were not constrained by “formal proof” and could request any evidence or view any evidence they deemed necessary

- Very broad judicial discretion - Ferni’s “criminal sociology” was very influential in establishing the soviet legal system

- Much to the shame of later soviet leaders and intellectuals

- Punishment was not meant to fit the crime, but rather to fit the character of the offender- Criminal justice was “designed to protect society from the socially dangerous element”

- Vagueness was appreciated by the state as they could use judgements to justify whatever they wanted, this in part allowed for atrocities to take place

- Judicial discretion became judicial arbitrariness

DATE: October 31st, 2016 TOPIC: Territorial Reach of Criminal Justice NOTES:CRJ operates against a background of sovereignty, international law, and territorial organization. States operate as a broader compilation: the international justice system. Two states can decide that they will exercise narrower/broader titles of jurisdiction (by agreement/treaty). The treaty is an expression of the countries' sovereign will. To know if a state has jurisdiction over something, look at international conventions and customs; whatever a state is allowed to do, it’s derived from a higher system of law, an authority that supersedes it. Domestic criminal courts apply domestic criminal law (statutes, criminal codes) only. If the statute says the country has jurisdiction, it has jurisdiction.If a state enforces extra-territorial jurisdiction which constitutes a violation of international law, it will not be effective. If other countries insist that you are violating their jurisdiction, they will apply pressure in various ways i.e. diplomatic and economic sanction, refusing to extradite the accused, make it impossible for a foreign court to prosecute the person, refuse access to information, ban investigation, etc. States can also pass statutes to prevent other courts to have jurisdiction on the matter.Every state wants to have jurisdiction (def: competence to promulgate, adjudicate, and enforce laws) over its territory. Therefore, the issue which might arise is:

READINGS: Permanent Court of International Justice, France v. Turkey (the "Lotus" case)

France v Turkey

Facts: French ship (Le Lotus) heading for Constantinople hit a Turkey ship (Boz-Kourt) à Boz-Kourt

sinks, 8 Turkish nationals die. Lotus saves 10 Turkish nationals and continues trip to Constantinople.

Turkish police arrests both Demons (officer in charge of Lotus) and Bey (officer in charge of Boz-Kourt), who are charged with manslaughter.

Criminal trial under the Criminal Court of Stamboul (Turkey) Court gives Demons 8 days in prison + fine (Bey: slightly harsher). Prosecutor of the

Turkish Republic appeals, and the sentence is thus not effective until the appeal is answered.

NB: The offense was committed "outside Turkey"

Issue and holding:Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? No.

Reasoning: Article 15 of the Convention of Lausanne (1923): refers to "principles of international law".

What does it mean?1. "Principles of int'l law" refers to laws governing relations between all nations, which

shall determine questions of jurisdiction. Courts tries to determine whether any rules of international law have been violated when

Turkey prosecuted Demons.1. The court agrees with Turkey’s claims that as long as no rules of int'l law are broken,

they have jurisdiction over the case (based on Art.15). First restriction of int'l law: A country cannot exercise its power in another country, except if

there is an explicit permission to do so.1. However, states are free to prosecute individuals within their jurisdiction for acts

committed beyond their jurisdiction . 2. Title resides in the country's sovereignty.

Court tries to decide whether these considerations really apply to criminal law1. "Territorial criminal law does not coincide with territorial sovereignty".

Court highlights that the parties have sided along the two different views on the territoriality of criminal law:

1. Principle of freedom, country can regulate its legislation as it wishes as long as it does not come in conflict with int'l law restrictions.

2. Criminal law is exclusively territorial, and a country cannot extend its jurisdiction into another country's territorial sovereignty if not guaranteed by a treaty.

France's other arguments. Court will address them.1. International law does not allow a State to take proceedings with regard to offences

committed by foreigners abroad, simply by reason of the nationality of the victim.1. Court: this is only true if nationality of the victim was the only element to

consider.2. As long as the offense happened on a Turkish ship, Turkey has a valid claim to

jurisdiction.3. Court does not have to look at whether Art.6 of the Turkish Penal Code is

compliant with int'l law, because it is an internal matter. Could only do so if (1) the Code goes against a provision in a treaty or (2) if there's a denial of justice.

Ratio· Countries may act in any way they wish as long as they do not

contravene an explicit prohibition under international law.

Perrin, Benjamin - “Taking a Vacation from the Law? Extraterritorial Criminal Jurisdiction and Section 7 (4.1) of the Criminal Code” Principles of extraterritorial criminal jurisdiction

Jurisdiction: "a state's power to exercise authority over individuals, conduct and events, and to discharge public functions that affect them" (R.v.Hape)

It must be clearly identified (e.g. prescriptive, enforcement, or adjudicative) along with the ground(s) on which it is claimed (e.g. territoriality, nationality, passive personality, protective, universaltiy)

Grounds for asserting criminal jurisdiction Territoriality-based: events taking place within and over individuals and property

within state's territory; primary basis of jurisdiction under Can. and Inter'l law Nationality (personality): regardless of where the conduct took place Passive personality: allows the state to assume jurisdiction over an act that harmed one

of its nationals abroad Protective jurisdiction: is claimed by a state for prejudicial acts committed abroad to its

security, territorial integrity and political independence (applies to treason, espionage and counterfeiting state currency)

Universal jurisdiction: offensive acts to the international community at large Any state can prosecute any individual

Relationship b/w grounds and forms of criminal jurisdiction Territoriality-based jurisdiction allows the state to exercise prescriptive, enforcement and

adjudicative jurisdiction that are only limited by customary and conventional international law

Nationality-based: prescriptive and adjudicative jurisdictions State imposes legal obligations on its nationals and permanent residents wherever

they travel Authority of a state over its nationals when they are abroad is strictly limited --

Similarly, universal jurisdiction - OK for prescriptive and adjudicative but not enforcement jurisdictions

Investigative activities outside of Canada Mutual legal assistance treaty between jurisdiction Canada and foreign states that

facilitates enforcement. Otherwise, a non-treaty letter of request or non-treaty court-issued request to seek assistance

Applicable standards in investigations abroad Can investigative procedures and standards may not always be possible in foreign

jurisdictions. The law of the jurisdiction in which the activity was carried out governs Extradition of Canadian Nationals

Canada has bilateral extradition treaties with 1/3 of destination countries

Optional Protocol obliges state parties to facilitate the extradition of suspected child offenders

When Canada prosecutes its national from a state that does not have a treaty with Canada, but is party to the Protocol, the latter has a legal obligation to either extradite or prosecute the individual

International comity and the applicability of Libman R.v.Libman: real and substantial link is necessary for a Canadian court to assume

jurisdiction over a matter --> "real and substantial link" test International conventions and customary interntanion law may establish permissive or

Jurisdictional, Preliminary, and Procedural Concerns

Jurisdiction:· Can have different meanings in transnational cases:

(a) jurisdiction to prescribe, i.e., a country’s ability to make its law applicable to persons, conduct, relations, or interests;

(b) jurisdiction to adjudicate, i.e., a country’s ability to subject persons or things to the process of its courts or administrative tribunals. The U.S. legal categories of personal jurisdiction and subject-matter jurisdiction help delineate the scope of U.S. courts’ jurisdiction to adjudicate;

(c) jurisdiction to enforce, i.e., a country’s ability to induce or compel compliance or to punish noncompliance with its laws or regulations.

We are concerned with the jurisdiction to prescribe

1. Principles/bases of jurisdiction (to prescribe):a. Territoriality: conduct taking place within the country’s territory, or designed to have

effects within the country’s territory§ A country may regulate both civil and criminal matters within its sovereign

bordersb. Nationality/Active personality: conduct performed by the country’s nationals

§ A sovereign state is entitled to regulate the conduct of its own nationals anywhere§ Why? Citizens owe a duty to obey the state’s laws even when they are outside the

statec. Passive personality: conduct having the country’s nationals as its victims

§ This is the second of the two principles that support the exercise of jurisdiction by reference to a person involved in the conduct at issue

§ i.e. issues regarding terrorismd. Protective principle: conduct directed against a country’s vital interests

§ a state may exert jurisdiction over conduct committed outside its territory (by its nationals and non-nationals) if the conduct falls within a limited class of offenses directed against state security or critical state interests or functions

§ i.e. espionage, counterfeiting of gov money or seal, falsification of official documents, etc.

e. Universality: conduct recognized by the community of nations as of “universal concern”

§ a state may exercise extraterritorial jurisdiction even in the absence of all four jurisdictional links discussed above

§ It can do so only if the conduct alleged constitutes one of a very few, specified international crimes

§ Crimes which concern international community, i.e. genocide, torture, piracy, aircraft hijacking, hostage taking

f. Reasonableness Inquiry:§ Even when one or more of the five international law bases for jurisdiction are

present, the application of national law to conduct linked to another state or states may still be precluded if such exercise is deemed “unreasonable.”

2. Sources of jurisdiction under US law:a. Subject-matter jurisdiction:

§ refers to the authority of the court to rule on the type of case at hand; that is, the conduct at issue or the status of things in dispute.

b. Personal jurisdiction/jurisdiction to adjudicate:§ Refers to the court’s power to bring a person into its adjudicative process;

jurisdiction over a defendant’s personal rights, rather than merely over property interests

c. Jurisdiction to enforce:§ As a matter of international law, one state’s law enforcement officers may conduct

investigations or arrests in the territory of another state only if the latter consents3. Determining if congress intended to give a statute extraterritorial reach:

a. Express statutory language:b. Authoritative judicial interpretation:c. Pertinent canons of construction

i. Presumption against extraterritoriality ii. Charming Betsy canon

- (Canon named after case from which it originated) An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.

iii. Presumption against unreasonable interference with a other state’s authority

European Parliament, Policy Department, The Extraterritorial effects of legislation and policies in the EU and US. AbstractInternational law is governed by the principle that one state cannot take measures on another territory without its consent. There is an exception when it comes to extraterritorial laws. Scope of the Study and Key DefinitionsGeneral rule

State jurisdiction is a key part of state sovereignty.

Only limit to a state’s sovereignty is international law. Three types of jurisdiction: (1) legislative/prescriptive, (2) judicial/adjudicative, (3)

administrative/enforcement.Civil/private law

General idea is that civil law ET enforcement is excessive, unless there is a strong, substantive link to national laws.

Criminal law Five principles which allow ET laws in criminal law:

1. Territorial principle2. Nationality principle3. Protective principle:4. Universality principle:5. Passive nationality principle

“IBA - BNP Paribas sanctions case highlights US power over international deals”

BNP (French bank) agrees to pay 9 billion $ in a US settlement for sanction violation accusations + plead guilty to 2 crim charges.

Concern: US claims that this case falls within their jurisdiction on a very slender basis. Some are denouncing the US's excessive authority through the importance of the $USD (main

reserve currency). Trend towards a reduction of the reliance on $USD. BRICS countries (Brazil, Russia, India,

China, South Africa) signed agreement to create a 100 billion $ development bank with emergency reserve fund.

For US: important that sanctions are enforced. The BNP story exemplifies one part of their sanctions strategy.

QUESTIONS:

1. Why do states extend their criminal jurisdiction beyond their territory?

· Arguments against extra-territorial criminal jurisdiction It's a kind of colonialism: you're imposing your principles on another country. It’s a violation of sovereignty

· Arguments for extra-territorial criminal jurisdiction States feel responsible for their citizens if they are the perpetrator (active personality

principle) or the victim (passive personality principle). Prevents citizens from "taking a vaction" from domestic law. Especially for offenses with strong moral background i.e. sex trafficking Uphold principles which are crucial to the international community. Protecting the interest of the state (i.e. globalization, very valid for crimes such as

treason) For business interests (i.e. Anti-trust regulations)

If a country believes that the other state's criminal justice system is not sufficiently efficient.

State's reputation.2. Has the lotus principle changed and if so what might be a further requirement in asserting penal jurisdiction?· The international community gives its “OK”

o Lotus principle: Turkey won because the courts stated they can do whatever they want except if they go against another country’s explicit prohibition à very broad and expansive

· Reasonableness based on a real/substantial link:o Can’t allow a country to impose their law on everyone in an

unreasonable fashiono There are legal bases for extending jurisdiction: passive personality

principle, impact, objective territory principle (i.e. international criminal organization)

DATE: Nov 2nd, 2016 TOPIC: Criminal Justice & Legal Pluralism Notes:

Legal Pluralism:· Term starts being used during African colonialism, describing an encounter

between two legal systems that are not on equal terms.o Modern day e.g—Indigenous legal traditions emphasize community

values & restorative justice, whereas Western legal thought emphasizes individualism and punishment.

Factors conducive to legal pluralism· Respect, dialogue, communication· Migration of people

Types of legal pluralism· Hard—The dominant law/state does not recognize other legal traditions· Soft—The dominant law/state provides some kind of

recognition/accommodation to the lesser legal traditions READINGS: Perspective on Crime and Injustice in Canada (Toronto: University of Toronto Press, 2016) (“’Indian’-Specific Liquor Laws andRegulating Pool Hall Entry” & “Outlawing ‘Indian’ Culture, Dancing, andCeremonies”), p. 116-118

· Discusses a piece of legislation from 1876 that criminalized ‘status Indians’ from purchasing alcohol/being intoxicated. They faced imprisonment for either of these offences.

· In 1930, this Act was extended to forbid pool hall owners from permitting Indians to enter the premises. In 1951, the rules were relaxed a little bit, but still Status Indians couldn’t have alcohol on-reserve or be intoxicated off-reserve.

· Talks about how these stipulations in the Indian Act were removed after the 1970 case R. v. Drybones. Not entirely sure if this reading has any connection to legal pluralism… Drybones was decided on the basis of the Canadian Bill of Rights and really had nothing to do with Indigenous legal traditions.

· (Page 117-118 are not available for viewing. Classic Megret.) Napoleon and Friedland, "Indigenous Legal Traditions: Roots to Renaissance" in Markus D. Dubber and Tatjana Hörnle, The Oxford Handbook of Criminal Law 225-247.

· Describes the relationship between the Canadian legal system and indigenous legal traditions through 4 main periods: pre-contact, early colonization, contemporary recovery, modern steps towards actual resurgence of Indigenous law as Canadian law.

· General theme here is that the Canadian government used to have a hard stance on legal pluralism (i.e not affording Indigenous legal traditions any normative weight) but now, it’s maybe adopting a softer stance through the reintegration of Indigenous traditions into canadian law

· The authors argue that at some point, the Canadian criminal justice system must continue to operate under its own guises with respect to Indigenous peoples ex. really bad crimes like murder—a purely Indigenous traditional approach isn’t functional. They advocate for a soft-pluralistic model. Van Cott, Donna Lee. “A political analysis of legal pluralism in Bolivia and Colombia” (2000) 32:1 Journal of Latin american studies 207 (Read section on Colombia

· In 1991, Colombia added Constitutional protection for Indigenous groups within the country and included Indigenous customary law into the legal system (so Colombian judges could adjudicate Indigenous issues based on Indigenous customs)

· But if there was conflict between Indigenous and Colombian law, the latter prevailed. (So what’s the point of even doing this in the first place?) It’s basically the same result

· **The Colombian case provides the most ambitious attempt of any Latin American state to implement legal pluralism. This is at least in part due to the v progressive

nature of the Colombian Constitution and the strong presence of judicial activism by the Colombian Supreme Court

Bangré, Habibou. “Justice populaire”, (29 September 2003), online: Afrik.com..

V questionable article. Good to know this is the kind of stuff our university professor wants us to read.

· Apparently in some African countries (eg. Cote d’Ivoire, DRC, Senegal, Burkina Faso), the rule of law is not as strong as the social implications with respect to dealing with crime. Apparently if a thief is caught by the community, “ils le lynchent en groupe sans autre forme de procès”… idk if I believe this

· *The point that Megret wanted us to get out of this is (I think?) an example of pluralism where the State law is (at least per this article) subordinate to a social legal system based on vengeance. Freeman, Colin. “Albania’s modern-day blood feuds”, The Telegraph (1 July 2010).

· Kind of like the previous article, but this time the secondary ‘legal’ system is one based on personal vendettas.

· There is a 500 year old text called the Kanun which dictates how blood feuds are carried out in Albania. Some of its ‘commandments’ are v dark.

· Anyone who’s seen the ‘Taken’ movies likely knows as much about this whole ‘Albanian blood feud’ thing as the author of this article does.

Amin A. Muhammad, Preliminary Examination of so-called "Honour Killings in Canada", Presented to Family, Children and Youth Section, Department of Justice Canada, 2013, read sections 4 to 6

· The 2 sections we have to read are a brief overview of the history of honour killing and its place in the world today.

· Started in ancient Roman times and appeared in early Jewish law. Under Ottoman rule, this type of practice increased one’s honour and attracted community respect rather than condemnation for taking a life.

· Happened in lots of regions of the world historically · ** Yet another example of an alternative to law re: a system of seeking justice

General Rules Criminal Jurisdiction in Indian Country .

· American website which vaguely outlines the criminal jurisdiction of Indigenous communities in the States.

· Indian Country—Defined basically as all land on Indian reserves/traditionally inhabited by Indian peoples.

· A crime is within tribal jurisdiction only if both the perpetrator and victim are Indian and the crime is not a ‘major’ one. Otherwise, the crime falls within Federal (or joint federal/Indian) jurisdiction.

· Double jeopardy rule does not apply—the same crime can be tried in federal and tribal court.

· *This page is a decent example of how soft pluralism could work. In Canada we don’t really have anything like this.

DATE: November 7th, 2016 TOPIC: Foreign and International Impacts on Criminal Justice NOTES: The international environment has an impact on Criminal Justice. It can both increase criminalization or moderate it, depending on the circumstances (see Harmonisation internationale du droit pénal in readings). Countries differ in their acceptance of international law. Amongst other things, the influence of international criminal law operates through the spreading of ideas amongst countries. This is important when states want to reform their system. States usually look to Europe, particularly to Germany, for ways to improve their Criminal Justice system. The common law itself can be viewed as a subsystem of idea movement. Conformity is often sought in international criminal law. It makes extradition, for example, much easier (see Roger Judge v Canada in readings). Conformity gives legitimacy to international criminal law. However, states generally remain the highest instance of sovereignty; no international institution has the mean to impose a law on a sovereign state. Conformity thus operates on a voluntary basis. Canada is a dualist country: it separates international law from domestic law. (see article on the legalization of marijuana) Parochialism: historically, criminal law is associated with a state's sovereignty. States hesitate in giving up that power to international law (see Comparative criminal law: criminal law's parochialism in readings). READINGS: Comparative criminal law: criminal law's parochialism Although comparative law began as comparative criminal law, nowadays the discipline completely overlooks comparative criminal law. The parochialism of comparative criminal law is closely tied to its history.

The preponderance of sovereignty in criminal law flows from a patriarchal model of criminal law, i.e. a model where sovereigns hold an unchallenged householder-like disciplinary authority. Enlightenment political theory challenged this model based on ideas of personal autonomy and citizenship. The doubts emerging from the apparent incompatibility of treats and punishment with this newly found idea of autonomous citizenship triggered an interest in comparative criminal law. Despite the Enlightenment critique, the patriarchal model is still preponderant. With it comes intrusive and virtually unlimited state power, as well as a dominant notion of territoriality in criminal jurisdiction. This is particularly true in the United States where the Enlightenment critique didn’t have as much echo as in continental Europe. Comparative criminal law, by suggesting the existence of alternative rules, is incompatible with the very notion of sovereignty. Hence, even in countries where the Enlightenment critique of the patriarchal model had more success, comparative criminal law emerged only sporadically, which explains its parochialism. Harmonisation internationale du droit pénal (texte original: 18 pages) I – Intro : Le XXe siècle est caractérisé par une internationalisation du droit pénal, découlant principalement des guerres, des traités (ex : traité de Versailles), des principes et conventions qui sont adoptées en réactions à ces guerres (principes de Nuremberg, convention sur les génocides, etc.), ainsi que de la création d’institutions et d’organisations internationales (Société des Nations, Nations Unies, etc.). De multiples changements surviennent dans le nouvel ordre pénal international.II- Les droits de l'homme. Du monde des idées à l'ordre juridique mondial : Depuis la fin de la seconde guerre mondiale, les droits de l'homme sont passés du statut de revendication politique et culturelle à celui de composante à part entière de l'ordre juridique mondial.III- Des droits de l'homme au droit pénal constitutionnel: Les droits de l'homme sont intégrés dans les constitutions des États.IV- Un procès avec des droits: adoption du Due Process (procès équitable) et d’une nouvelle conception du droit pénal. Un recul se produit après le 11 septembre (Guantanamo, utilisation de la torture pour obtenir des preuves…), mais la communauté internationale réagit en réaffirmant le rejet des preuves obtenues par la torture.V- L'accroissement moderne de la criminalité: On observe une augmentation de la criminalité équivalente à l'augmentation du produit intérieur brut dans tous les pays.VI- L'apparition d'une criminalité bien moderne: À la place des crimes traditionnels (vols, agressions, etc.) apparaissent les crimes économiques et les crimes

organisés tels que le terrorisme moderne, le trafic de drogues et une recrudescence du trafic des êtres humains.VII- Droit pénal classique contre droit pénal «moderne»: Le droit pénal «moderne» doit s'étendre à des nouvelles infractions telles que les infractions contre les biens juridiques collectifs et les infractions d'imprudence. Il fait aussi appel à de nouveaux outils, ainsi qu'à de nouvelles façons de voir des crimes qui existaient déjà (ex: violence de genre).VIII- Une nouvelle présentation sociale de la criminalité: Elle est caractérisée par le recul de la conception réhabilitante du système pénal, par des progrès au niveau de l'abolition de la peine de mort, ainsi que par la nouvelle importance accordée aux victimes.IX- Victimologie: le blâme des libéraux: la vision pénale libérale dépasse la simple vengeance privée, ce qui est positif. Cependant, il est aussi nécessaire d'indemniser et de protéger les victimes (sans toutefois empiéter sur les droits des criminels).X- Une opinion publique mondiale et la politique criminelle: naissance d'une opinion publique mondiale, alimentée par les nouveaux moyens de communication, qui met fin à l'impunité des États.XI- Harmonisation internationale du droit pénal et nouvelles formes de droit comparé: Trois phénomènes. (1) Harmonisation des comportements punissables et des procédures et intensification de la coopération judiciaire. (2) Globalisation économique comme source d'universalisation des droits de l'homme et de constructions progressive d'espaces d'harmonisation pénale (ex: UE, MERCOSUR). (3) Influence des organismes internationaux (ONU, OCDE, OMC).Roger Judge v Canada (Views of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights)

Roger Judge v CanadaFacts:Mr. Roger Judge, an American citizen, was convicted of murder and sentenced to death in Pennsylvania. He escaped prison and fled to Canada, were he was later convicted of two robberies and sentenced to 10 years' imprisonment. During his sentence, he was ordered deported from Canada. The National Parole Board reviewed his case and ordered him detained until expiry of his sentence. He made several attempts to obtain a stay of the deportation order through the Minister of Citizenship and immigration, then under the Federal Court of Canada, and finally under the Superior Court of Québec. His requests were rejected. He was deported within hours of the Superior Court's decision, thereby making it impossible for him to appeal.Issue and holding:1. As Canada has abolished the death penalty, did it violate the author's right to life under article 6 by deporting him to a State in which he was under sentence of death without ensuring that that sentence would not be carried

out?

Holding: Yes

2. By deporting the author to a State in which he was under sentence of death before he could exercise all his rights to challenge that deportation, did the State party violate his rights under articles 6, 7 and 2, paragraph 3 of the Covenant?

Holding: YesReasoning:(1)In Kindler v. Canada, which took place 10 years before the present case, it was found that "the deportation of a person from a country which has abolished the death penalty to a country where he/she is under sentence of death" does not per se constitute a violation of article 6.However, "since that time there has been a broadening international consensus in favour of abolition of the death penalty, and in states which have retained the death penalty, a broadening consef(2) " By preventing the author from exercising an appeal available to him under domestic law, the State party failed to demonstrate that the author's contention that his deportation to a country where he faces execution would violate his right to life, was sufficiently considered." (para 10.9)"Bearing in mind that the State party has abolished capital punishment, the decision to deport the author to a state where he is under sentence of death without affording him the opportunity to avail himself of an available appeal, was taken arbitrarily and in violation of article 6, together with article 2, paragraph 3, of the Covenant." (para 10.9)Notes/Thoughts:"[…] by becoming a State party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established" (para 13) Regional human rights body condemns Canada’s failure to address crisis of missing and murdered Indigenous women Canada is a member of the Organization of American States, which comprises human rights instruments. Canada has international human rights obligations to take positive action regarding violence against Indigenous women and girls, and must insure the active participation of indigenous women in the process.

Canada’s marijuana legalization plan flouts 3 UN drug conventions The legalization of marijuana would violate 3 international drug-control conventions Canada adheres to. Violating treaties undermines the legitimacy of international laws, including laws on genocide, nuclear disarmament, etc. To avoid breaching these conventions, Canada could (1) keep the drug illegal but chance its enforcement of the law; (2) Get an exemption from the treaties; or (3) Formally withdraw from the treaties.

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DATE: November 14, 2016

TOPIC: Types of Policing and Surveillance (Plenary)

NOTES:

Four objectives for the police approach to the problem of profiling with urban Aboriginals and missing and murdered Aboriginal women:

o Advisory panel made of Aboriginalso Have an Aboriginal liaison officero Sensitize the police on Aboriginal culture and issues and realitieso Sensitize society on Aboriginal culture and issues and realities

Sexual predators pose a significant risk to Aboriginals when they come from

Northern rural areas to Montreal.

It is important to interject cultural sensitivity into interventions with police.

Customs/rules are different in Aboriginal communities. Example: It is illegal to sleep outside in Montreal, but not some

aboriginal communities. Example: In Cree, is rude to look people in the eye, but to the police

officer they interpret avoiding eye contact as lying or refusal to cooperate. So there is a need to teach the police to understand what it means.

Example: The ideas of property and ownership are very different. In Inuit culture, land is communal, so Inuits don’t understand when police ask them to move.

They have started doing mixed patrols (police and Indigenous intervener). It is crucial to build up trust between the communities and the police. This help for people who don’t trust the police. It also allows police to intervene in a way that will be understood and

is culturally sensitive.

In the training, the police are taught how to say hello in the 11 different

languages, and they are told to ask the individuals which nation they are from.

READINGS:

Against Community Policing

President Obama delivered a speech before the International Association of Chiefs of Police (IACP) about community policing.

Community policing is a kinder version of law enforcement premised on collaborative partnerships between police and the public. It has become one of the go-to solutions to the crisis of police legitimacy.co

The article argues that while these types of community policing programs purport to build stronger communities, they train small, self-selecting groups to amplify police power. And they increase the police presence in poor and minority communities, deepening their criminalization.

Example: The meetings are venues for disproportionately white, property-owning Chicagoans to demand more police to further criminalize their black and brown neighbors as part of an overall effort to push them out, quicken redevelopment, and increase property values.

They suggest community control – bringing police agencies under local democratic control of all-civilian community boards with the ability to set police priorities, determine policies, and enforce practices, including the hiring and firing of police officers.

oec

The essence of broken windows is that minor incivilities (such as drunkenness, begging, vandalism, graffiti, litter, etc), if unchecked and uncontrolled, produce an atmosphere in a community or on a street in which more serious crime will flourish.

In other words, crimes flourish because of lax enforcement. The prescription of broken windows is to shift policing from major

crimes to traditional public order maintenance. The article discusses some controversial aspects of the theory of broken

windows and its application to the strategy of zero tolerance in policing of urban crimes.

There is no evidence connecting disorder and crime. The police would be in a position to extra-legally harass the homeless,

the destitute and the minorities. It may destroy the diversity and vitality of democratic society.

6 factors independent of police work that reduced crime rates in America: Boom in the economy provided jobs for youth and diverted them from

street crime. Transformation in drug trade (eg. narcotic sector became an

oligopoly). The number of young people declined. Learning effect that the deaths of earlier generation of young people

had on late generation (avoided drugs and stayed away from risky lifestyles).

Role of churches, schools, clubs and other organization in awareness and prevention campaigns.

Statistical law of regression states that when there is an abnormally high incidence of crime, it is likely to decline and settle towards the mean.

Surveillance and predictive policing: Welcome to the ‘safety state’ of tomorrow

Experts expect policing of the future to include data collection online and

programs that “predict” crime (crime forecasting). Cops in the coming decades will gather information online, interact

with the public through social media and even use data gleaned from the Internet and past crimes to predict and prevent future law-breaking.

Concerns with crime forecasting: Accuracy.

But tests have already shown a 60-70% accuracy rate for some property crimes such as break and enters, which are easiest to predict because they’re high frequency and often involve repeat offenders.

Disproportionately targeting visible minorities. But it considers data from crime reports and other objective

factors. Individual rights (undermines presumption of innocence).

The police of tomorrow could have a vast arsenal of tools at their disposal, instruments of force and surveillance that could have sprung from the imagination of soAme sci-fi master.

Examples: laser guns, microwave heat gun, x-ray vans and sound cannons

Evaluation of the First Nations Policing Program 2014-15 The purpose of the First Nations Policing Policy is “to contribute to the

improvement of social order, public security, and personal safety in FNs and Inuit communities, including the safety of women, children, and other vulnerable groups.”

FNPP police officers are expected to provide day-to-day policing services to FNs and Inuit communities including enforcement, victim services, crime prevention, school visits, youth interactions, and inter-agency cooperation, and liaison with community.

An evaluation of the policy was performed, which is important because crime rates in First Nations and Inuit communities remain higher than in the rest of Canada. High rates of crime and victimization are costly to communities both in terms of tangible costs and intangible costs such as lost quality of life resulting from psychological effects of victimization.

From 2004 to 2013, the overall volume of crime in FNPP communities declined as it did in the rest of Canada. However, the incidents of crime on-reserve still remained almost four times higher, and incidents of violent crime were about six times higher than the rest of Canada. Risk factors of offending and victimization are higher among the Aboriginal population. In this broader social context, policing is not the sole answer to reducing crime in FNs and Inuit communities.

Evidence shows that community responsibility is essential for successful program administration, design and delivery.

FNs and Inuit communities need to be engaged, own the program and set the pace.

The evaluation found that the Program has not sufficiently engaged communities so as to enable success of the program against these overarching objectives.

Although the FNPP has made a difference in funded communities, gaps persist as the program is not accessible to all communities.

In many CTA communities, the intent of having dedicated FNPP officers has been eroded because officers are not embedded in the communities. Police are spending their time getting to and from communities, or on other policing priorities rather than on FNPP activities.

It is clear that alternative approaches need to consider community development principles such as community engagement and involvement; holistic and traditional FNs and Inuit practices; community responsibility and accountability; and embedded resources.

Guidelines for the Use of Video Surveillance of Public Places by Police and Law Enforcement Authorities

The use of video surveillance to detect, deter and prosecute crime has increased significantly over the last few years—in Canada and abroad.

Video surveillance of public spaces is increasing rapidly, by public sector authorities, private sector parties, and property owners.

Video surveillance of public places nonetheless presents a challenge to privacy, to freedom of movement and freedom of association.

Given the widespread use by police of video surveillance in public spaces, and its potentially chilling effect on privacy, the Office of the Privacy Commissioner of Canada (OPC) offers guidelines:

Video surveillance should only be deployed to address a real, pressing and substantial problem.

Video surveillance should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative.

The impact of the proposed video surveillance on privacy should be assessed before it is undertaken.

Public consultation should precede any decision to introduce video surveillance.

The video surveillance must be consistent with applicable laws. The video surveillance system should be tailored to minimize the

impact on privacy. The public should be advised that they will be under surveillance. Fair information practices should be respected in collection, use,

disclosure, retention and destruction of personal information. Excessive or unnecessary intrusions on privacy should be

discouraged. System operators should be privacy-sensitive. Security of the equipment and images should be assured. The right of individuals to have access to their personal information

should be respected. The video surveillance system should be subject to independent audit

and evaluation. A comprehensive written policy governing the use of the surveillance

equipment should be developed. The policy should identify a person accountable for privacy

compliance and privacy rights associated with the system. The public should have a right to know about the video surveillance

system that has been adopted.

Policing and the Police

Policing:

Modern societies are characterized by what can be termed “police fetishism”: the ideological assumption that the police are a functional prerequisite of social order.

Social control is the organized ways in which society responds to behaviour and people it regards as deviant, problematic, worrying, threatening, troublesome or undesirable.

Can be regarded positively or negatively.

Policing is a set of activities directed at preserving the security of a particular social order, but it does not encompass all activities intended to produce order. It excludes post hoc punishment, as well as processes creating the conditions of social order (eg. religion, family).

Policing is an aspect of social control processes involving surveillance and sanction intended to ensure the security and social order.

Policing refers to organized forms of order-maintenance, peace-keeping, rule or law enforcement, crime investigation and prevention and other forms of investigation and information-brokering.

The police are a specialized, state-organized body with the primary responsibility for deploying legitimate force to safeguard security that exist only in relatively complex societies.

Police may originate in collective and communal processes of social control, but specialized police forces develop hand in hand with the emergence of social inequality, hierarchy, and more centralized, dominant state systems.

Police discretion: Police discretion is both routine and inevitable. There are more breaches of law than police capacity to process them, so

choices about priorities are inescapable. Discretion is also logically necessary as legal rules require interpretation in

unpredictable fact situations. The powerless are often over-policed and under-protected.

The lower the social class of a person, the more their social lives take place in a public space, and the more available they are come to police attention.

Numerous studies have shown that the police disproportionately exercise their powers against black people.

In a liberal democracy, the police are subject to a tension between the values of crime control and due process.

There are 3 broad approaches to explaining how police discretion operates: Individualistic explanation

Police officers tend to have a more authoritarian perspective. Cultural explanations

Suspiciousness arises from the pressure to achieve results and concern with danger. This makes the police prone to operate with prejudiced stereotypes of potential villains and troublemakers.

Internal solidarity coupled with social isolation. Moral and social conservatism (not the norm to be liberal). There is cultural variation within and between forces.

Structural explanations

Police prejudices are more a product than a cause of the differential use of police powers, which embodies the socially structured nature of the police mandate.

There are two principal channels for holding individual officers accountable for wrong-doing: legal accountability (safeguards/procedures inhibiting gross violations of suspect’s rights – but they are decreasing) and the complaints process (statutory procedure for handling complaints against the police).

There has been a trend in enhancing central control to provide public accountability of policy decisions in the police force.

Community policing: greater citizen involvement in the identification of the problems that should form priorities for police attention as well as in the responses of those problems.

Problem-oriented policing: an attempt to make police work more analytical in the identification of the problems to be addressed, and constructive in the solutions applied to the problems identified.

Looks for connections and patterns with the aim of finding lasting solutions to ongoing problems.

Intelligence-led policing: police functions can be performed more efficiently and effectively through greater stimulation and use of intelligence.

Also searches for patterns in offending and victimization. The private security sector can be broken down into three main elements:

Staffed services (guarding, asset protection, door supervision, debt collection).

Security equipment. Investigation (tracing missing persons, matrimonial work, credit

checking, fraud investigation). There has been an increase in private security:

Increasing financial constraints on the police, who as a result, are unable to meet the demands placed upon them.

Growing privatization of urban space (growth of mass private property) and gradual emergence of gated residential communities.

Direct privatization of public functions of government. D, 2046

DATE: NOVEMBER 16TOPIC: The Use of Constraint: Search, Seizure, Stopping and Arrest Powers

NOTES:

Freedom from arbitrary detention→ in the charter and a basic human right

Right to privacy→ protects people from scrutiny, more than just at home

Leads to review of law for conformity with the Charter, which hit hard the criminal

justice system.

The test of whether any law is valid is the charter

Has an effect on the capacity to maintain order through control of society

Carding→ disconnected from crime

→Gathering data to be used by police

→ limits freedom and privacy

Some people from different groups are more likely to be carded/searched → link to

discrimination

This is limited by policy that makes police work under judiciary oversight

However, there is no absolute rule→ absolute rule of procedural adhesion would be

highly detrimental to police work

READINGS:

R v Feeney

Facts:

Police enter accused’s house without permission, in murder investigation. Arrest,

question without lawyer, seize shirt stained with blood, cash, cigarettes and shoes under

warrant for search of trailer.

Issue and holding:

Did the police violate charter rights to be secure from unreasonable search or seizure

and the right on arrest or detention to retain and instruct counsel without delay and to

be informed of that right? Yes,

Reasoning:

Subjective requirement for arrest was not met (rendered the arrest unlawful under

common law)

The arresting officer did not believe he had reasonable grounds to arrest prior to the

forcible entry.

Charter: does not allow an officer to make an arrest without a warrant if they do not

already believe there are reasonable grounds for an arrest

Objective test: a reasonable person, standing in the shoes of the officer, would have

believed that reasonable and probable grounds to make the arrest existed

*If subjective test is not met, then objective test cannot be met

the privacy interest generally outweighs the interest of the police and warrantless

arrests in dwelling houses are prohibited (exception in hot pursuit).

Privacy rights under the Charter demand that the police, in general, obtain prior judicial

authorization of entry into the dwelling house in order to arrest the person

B iefore forcibly entering a dwelling house to make an arrest with a warrant for an

indictable offence, proper announcement must be made

The arrest was unlawful both because the requirements for a warrantless arrest under s.

495 of the Code were not met, and, in any event, the police cannot make warrantless

arrests in private dwellings unless exceptional circumstances, which were not present

here, exist. Consequently, the entry into the trailer and the search and seizure of the

accused’s clothing violated s. 8 of the Charter

The requirement that a person be informed of his or her s. 10 (b) rights begins upon

detention or arrest. Detention under s. 10 of the Charter occurs when a peace officer

assumes control over the movement of a person by a demand or direction.

Procedures that are taken incidental to and following an unlawful arrest and which

impinge on the arrestee’s reasonable expectation of privacy breach s. 8 of the Charter .

(expectation of privacy is higher after an unlawful arrest. Includes the taking of fingerprints

in this case.)

Notes/Thoughts:

L’heureux dube, discent: exigent circumstances existed for a warratless entryàthe trial

judge and the Court of Appeal were of the view that a serious danger existed that

evidence would have been destroyed had the police not immediately entered the trailer

to arrest the accused.

Therefore, entrance in the trailer was lawfulàThe authority to search incident to arrest is

well established at common law and has withstood Charter scrutiny as well. Similarly,

fingerprinting as an incident of a legal arrest does not violate the Charter .

The warrant was properly obtained, even assuming the original entry was unlawful.

Where a warrant is obtained partially on the strength of tainted evidence, and partially

on evidence which was properly obtained, the role of the court is to consider whether the

warrant would have been issued solely on the strength of the evidence which was

properly obtained.

Section 10 was not breached because the delay was short

Section 10 (b) was not breached because section 2 and 3 are dependent on the detainee

indicating that desires to exercise his right to counsel. In this case, the detainee did not.

Exigent circumstances and seriousness of the crime must be taken in consideration when

evaluating if excluding the evidence would bring the administration of justice into

disrepute.

Ratio

If charter violations occur without any lawful authority, they are understood to be in bad

faith and are therefore serious. Serious disregard for an accused’s charter rights in the

collection of evidence will usually lead to the exclusion of that evidence.

The scars of stop and frisk

Documentary on stop and frisk in New-York

Young blacks always fit the description given by police

If you ask why you get frisked, police get more aggressive and might proceed to

arrest you

88% of people stopped are let go

87% of people stopped are black or latino

Supreme Court gives police more power to stop and question people, LA times

US: allows the police to stop you on the street, demand your identification and check

it for outstanding traffic warrants — even if you are doing nothing wrong

Allows police to fish for evidence and reason to arrest pedestrians in an arbitrary

manner

People of color will be especially targeted

allows the police to stop you on the street, demand your identification and check it

for outstanding traffic warrants — even if you are doing nothing wrong

Exclusionary rule: requires judges to throw out evidence if a police officer or federal

agent conducted an unreasonable search, including stopping a pedestrian without

reasonable suspicion that the person had committed a crime.

Rules relaxed in cases in which officers made an innocent mistake or relied on a

defective warrant

Carding across Canada: Data show practice of 'street checks' lacks mandated set of

procedures, globe and mail

Carding: documenting interactions with community (unregulated and data kept

indefinitely)

Disproportionately targets minorities

Toronto officers must inform residents they have the right to walk away from a

carding engagement at any time and conclude any such interaction by issuing a

receipt

Provides better community safety by giving officers more actionable information

and more intelligence

The man police can’t stop carding (Toronto star)

Harassed man in Toronto, getting frequent street checks.

Internal benchmarking is regarded by some police services as a way of flagging

behaviour officers may not even be aware of

Judge rakes cops over the coals for wrongful arrest

The man looked for by police was white, short, and wearing white sneakers with no

socks.

They arrested Dixon, a black and tall man, who that night was wearing black work

boots and socks

Dixon was thrown in jail and then forced to adhere to restrictive bail conditions for

nine months before prosecutors withdrew all charges

The judge deemed the police behavior was high-handed, arbitrary and highly

reprehensible misconduct

Judge also decided that police did not engage in a malicious prosecution of Dixon or

that they breached Dixon’s Charter right of equality because he is black

Search, seizure, arrest and detention under the charter

Section 8: everyone has the right to be secure against unreasonable search or seizure

Application

Corporations are included in “everyone”

Does not include expropriation

Seizure is limited to inanimate objects

“Seizure” of a person’s thoughts (order to testify) does not amount to section 8

“seizure”.

Standard for seizure: reasonable and probable grounds, established under oath, that

an offence occurred and that evidence will be found in the search area

Reasonable expectation of privacy

Prisoners, people arrested or charged cannot have much or any expectation of

privacy

If there is not reasonable expectation of privacy in a particular premise, then section

does not apply (example, passenger in a motor vehicle has no reasonable

expectation, while the driver does, students in a primary or secondary school

environment)

Border crossings

Lower expectation of privacy, but can still rely on and be informed of charter rights

to access a lawyer and have the search request reviewed prior to search

Evidence from an unreasonable search will not be excluded if the agent believed in

good faith that statutory provisions concerning searches are constitutional.

Charter violations can “accumulate” to make evidence inadmissible (no reasonable

and probable grounds for search, unclear reasons for search given to the accused

and lack of advice on right to consult counsel)

Warrantless searches

Must be reasonable : authorized by a reasonable law and carried out in a reasonable

way

If there is a mere suspicion of the crime, then it is not a reasonable reason for a

search

In narcotics cases (section 10 of the narcotics control act), warrantless searches

must be limited to circumstances where getting a warrant is impracticable (when

there is danger of removal, destruction or disappearance of the evidence)

Exception can be made when agents act in good faith, the charges involve serious

indictable offences and the admission of the evidence would not render the trial

unfair

Information that is public (utilities data) is not within reasonable privacy

Generally a warrant is required to make an arrest in a dwelling house except in

cases of hot pursuit

Warrants are required to enter a dwelling house to arrest the person (This is not

provided for in the criminal code: it should be read in based on charter provisions)

Warrant improperly obtained or executed

It is unlawful to apply for a warrant for a certain item while consciously aiming to

seize a different itemàconstitutes bad faith in the obtention of the warrant

Allowing a media crew to accompany the police into an accused’s dwelling violates

the accused’s privacy interestsàwarrant executed in an improper manner

Plain view doctrine

If a police officer is lawfully in residential premises, he has the right to seize articles

such as narcotics that are in plain view

Search of the person

Cases where search of the person is conducted are strictly scrutinized by the courts

and are often judged to be unreasonable and the evidence they yield is excluded (to

prevent the administration of justice from falling into disrepute).

The police are not obligated to suspend an arrest until the detainee has had the

opportunity to retain counsel (the detainee must be made aware of his rights in

good faith though).

The right to counsel is guaranteed by section 10 of the charter. However, denial will

result in a finding that a search is unreasonable only in exceptional circumstances: only if there is a link between the infringement and the discovery of the evidence

Common law power of search incidental to arrest

Established common law power of the police to search a lawfully arrested person

and to seize anything in his or her possession or immediate surroundings in order

to guarantee the safety of the police and the accused, to prevent the latter’s escape

or to obtain evidence

Not considered a disproportionate interference with the freedom of persons

lawfully arrested (no less intrusive means to attain that goal)

Three criteria for establishing that a search is reasonable and justified

1. The police are under no duty to search but can exercise their discretion in each

case based on the particular facts

2. The search must be for a valid objective in pursuit of the ends of criminal

justice

3. Search must not be conducted in an abusive fashion

Extends to the search of a vehicle in cases of arrest for possession of narcotics,

except if it is only to inventory the contents of the vehicle (not considered a serious

breach)

This power is not sufficient for the collection of bodily substances for DNA analysis

There was an amendment to the code to set out criteria and procedure for obtaining

prior judicial authorizationàwarrant for the seizure of bodily substances for DNA

analysis (allows as much force as is necessary to execute such a warrant)(only

issued for designated offences)

Electronic surveillance

Indiscriminate bugging of public phones is not permitted (infringes section 8)

Unauthorized electronic surveillance and interception “of private communications

by an instrumentality of the state with the consent of the originator or intended

recipient thereof, without prior judicial authorization, infringes section 8” (used to

be ok if one partie consented)

Section 8 serves privacy: particularly threatened by electronic surveillance

Removed unfettered discretion from the police

Privacy must be balanced with protection of the community

The defence has access to information that justified electronic surveillance

Private communications can be intercepted without judicial authorization with the

consent of the originator or intended recipient to prevent bodily harm to the person

consenting.

Breath tests and blood samples

In the absence of reasonable and probable grounds, the taking of a breath sample

amounts to unreasonable search and seizure

There is no unreasonable search and seizure where hospital personnel take a blood

sample from a patient for use in treating him and where the sample is later turned

over to police pursuant to a search warrant. However, Coroner’s seizure of medical

samples is reasonable only as long as the evidence was used for valid non-criminal

purposes. Once it is appropriated by criminal law enforcement for use against the

person from whom it was seized it breaches section 8 of the charter

Garbage

Once trash is abandoned by a householder he or she no longer has reasonable

expectation of privacy in respect of it

Waiver

Requires consent for exactly the charges sought by law enforcement. If blanket

consent is needed, then it should be asked for

Arrest and detention: Sections 9 and 10

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be

released if the detention is not lawful.

Thus, it is arbitrary and offensive for the police, with little or no reason, to detain or

arrest a person for questioning or for further investigation.

It is not improper, however, for them to pursue their investigation following an

arrest made on the basis of their reasonable and probable belief that the accused

was committing or had committed an offence

The law does not recognize any police right to arrest or forcibly detain any person

who is not charged with an offence, merely in order to investigate an offence that

the police believe has been committed.

1. Arbitrary Detention

a. Random Stops of Motorists

driving is a licensed activity that is subject to regulation and control for the

protection of life and property

stopping must be a reasonable limit, demonstrably justified in a free and democratic

society (police have a more or less unlimited right to stop vehicles

a check stop does not and cannot constitute a general search warrant for searching

every vehicle, driver and passenger that is pulled over. Unless there are reasonable

and probable grounds for conducting the search, or drugs, alcohol or weapons are in

plain view in the interior of the vehicle, the evidence flowing from such a search

should not be admitted

2. Right to Retain Counsel

a. The Interests Protected

section 10

a) a person is not obliged to submit to an arrest without knowing the reason for it;

accordingly it is essential that the person be informed "promptly" of the reason. Aka.

Immediately.

b) to protect someone from prejudicing his or her legal position by saying or

doing something without the benefit of legal advice

*although the reason for the arrest must be given immediately(part of the arrest process

itself), the accused must only be informed of his right to retain counsel “without delay” (not

the same as immediately)

This right requires that the accused be given a real opportunity to retain counsel

Violation of the right to counsel has resulted in the exclusion of evidence pursuant

to section 24(2) of the Charter

If Canadian law enforcement officials operate abroad, the charter applies to the

evidence they collect

police may have to make extra efforts to ensure that suspects understand their

rights, particularly in cases involving children, people who do not speak the

language used by the police, and those with diminished mental capacity

the right to counsel cannot be validly waived by young persons without them

knowing the full extent of their jeopardy (because of their particular characteristics)

(for example when they face life imprisonment if their case is transferred to adult

court).

"operating mind" test: sufficient cognitive capacity to understand what he or she is

saying and what is said ("[i]nner compulsion, due to conscience or otherwise,

cannot displace the finding of an operating mind unless, in combination with

conduct of a person in authority, a statement is found to be involuntary)

b. Obligations of Law Enforcement Agencies

The purpose of granting right to counsel is not only to allow detainees to be

informed of their rights and obligations under the law but also, and equally if not

more important, to obtain advice as to how to exercise those rights (police must

refrain from questioning until after the accused has had the chance to consult

council)

a person may implicitly waive the rights under section 10(b). However, the standard

is very high

After advice as to the right to counsel and the availability of duty counsel and legal

aid and the accused does not exercise reasonable diligence in exercising that right,

the police are free to attempt to extract evidence

s. 10(b) of the Charter does not impose a positive obligation on governments to

provide a system that afford all detainees a corresponding right to free, preliminary

legal advice 24 hours a day.

s. 10(b) "mandates the Crown or police, whenever offering a plea bargain, to tender

that offer either to accused’s counsel or to the accused while in the presence of his

or her counsel, unless the accused has expressly waived the right to counsel."

prohibit police "from belittling the accused’s lawyer with the express goal or effect

of undermining the accused’s confidence in and relationship with defence counsel."

Application to sobriety tests

Detention: the restraint of liberty, other than by arrest, by the police or some other

agent of the State; such restraint is not limited to physical compulsion or control

The offending motorist must be informed of section 10(b) rights prior to taking a

breathalizer test, physical coordination and sobriety test if that information is to be

accepted at trial

Habeas corpus: section 10 (c)

“You have the body”: residual liberty interest of detainees under section 7→ cannot

be deprived of liberty against the principles of fundamental justice

D. Exclusion of Evidence under Section 24(2) of the Charter

Section 24(1) of the Charter provides a course of action for accused persons whose

Charter rights have been infringed or denied: they can apply to a "court of

competent jurisdiction" for the "appropriate and just" remedy. (not provincial court

judge presiding over preliminary inquiry or a parole board)

Section 24(2) then allows such a court to exclude evidence obtained in a manner

that infringed or denied Charter rights, if admitting it into evidence "would bring the

administration of justice into disrepute." (Remedy is only available to the person

who’s right has been infringed)

Admissions of evidence obtained in violation of section 10(b) rights is a substantial

wrong and miscarriage of justice

Test for exclusion of evidence due to violation of section 10:

(a) Does the admission of the evidence affect the fairness of the trial?

(b) How serious was the Charter breach?

(c) What would be the effect on the system’s repute of excluding the evidence?

Illegally obtained evidence affects the fairness of trial depending on whether the

information is conscriptive or non-conscriptive.

Conscriptive: where the accused is compelled to incriminate himself (statement,

evidence of the body or bodily substances)

Admission of conscriptive evidence will render a trial unfair if the Crown fails to

demonstrate on a balance of probabilities that the evidence would have been

discovered by alternative non-concriptive means

Bill C-109: police surveillance

Bill C-104: authorizes seeking a warrant to take bodily substances for DNA analysis for

some offences

Bill C-16: procedures allowing police to obtain a warrant authorizing entry into a private

dwelling for the purposes of arrest or apprehension of suspects or accused

OHRC Submission to the Ministry of Community Safety and Correctional Services on

street checks

Carding can be experienced as a form of racial profiling: against section 1 of the

charter

Broad and unguided officer discretion to initiate street checks is fertile ground for

racial profiling

Recommendations

establish permanent data collection and retention systems to record race-based

data on all stops of civilians

provide consistent, effective oversight and accountability with respect to racial

profiling (including disciplinary measures)

Definition and prohibition of carding

Official version

non-detention, non-arrest interactions between the Service and community

members that involve the eliciting and/or recording of personal information

used by police to engage and record interactions with individuals whose activities

and/or presence within their broader context (e.g. location, time, behaviour, etc.)

seem out of the ordinary

Minority version

information that is gathered for no other justification than “general investigation” amounts to racial profiling

can lead to arbitrary detentions, unreasonable questioning, requests for

identification, intimidation, searches and aggression

african canadians grossly over-represented

Racial profiling is a systemic bias in the police force

Street checks cannot be divorced from investigative detentions

An individual should only be stopped by police in relation to an investigation of a

potential criminal offence, in securing a potential crime scene, necessary for the

well-being of the person stopped or due to statutory obligation of the person

stopped to provide license or identification.

In these circumstances, the charter rights of individuals in cases of detention should

apply

Receipts should be issued to hold officers accountableàshould have the reason for

the arrest listed, increase transparency and access to justice, help file complaints to

relevant authority for discrimination

The data collected by street-checks should be purged frequently

Slobogin, Christopher. “An Empirically Based Comparison of American and European

Regulatory Approaches to Police Investigation.” In Adversarial versus Inquisitorial

Justice, 27–54. Springer, 2003, read pages 28 to 32.

United-states law

Fourth Amendment US const. prohibits "unreasonable searches and seizures"

Search and arrests must be based on probable cause and particularity (more likely

than not standard)(particular description of place to be searched, person or thing to

be seized)àmust be outlined in a judicially issued warrant

Exceptions exist: supposed to be (but are not) limited or well-delineated

Stop or frisk: only needs reasonable suspicion (lower standard than probable

cause) and no need of a warrant

No need for a warrant for search of validly arrested person (or area within arm-

span) or of the premises where the arrest took place in search of a confederate

No warrant needed during hot-pursuit or search of cars (although probable cause is

still required)

No warrant or probable cause needed in administrative searches (although must be

justified by a rational regulatory scheme)

Going through garbage, flying over backyards, etc. are not considered searches (not

considered invasions of privacy). Therefore not regulated as a constitutional

matter

Voluntary consent to a search relinquishes any expectation of privacy

If rules violated, evidence must be excluded in the case made by the prosecutor

(often leading to dismissal of the case) exceptions exist: evidence that was obtained

illegaly but in good faith that it was legal, for example

**Defendant does not have standing to exclude illegally seized evidence that only

infringed a 3rd party’s privacy

European Law

Warrants not required as often, issued on less than probable cause

Rules governing search and seizure are based on statutes

England: same circumstances as USA

However, police can search whole house of arrestee without warrant

France: no criteria for search or seizure if investigating a recent major felony

(flagrant offence)

Non-flagrant: consent or permission by a judge or a delegate (but no warrant)

Seach authority limited to judicial police and requires presence of person who’s

premise are being searched or other civilians

Germany: same as England for premises of an arrestee

Code allows proceeding without warrant when there is “danger in delay”. Therefore

no warrants in 90% of cases.

However, target of investigation or close relative are entitled to be present during

search (like in france)

Different remedy regime for illegally acquired evidence

England: only if the evidence would make the proceedings unfair (unreliable

evidence or obtained through egregious police action)àfor illegal confessions but

not for illegal searches

France: very few nullities due to illegality in search and seizure

Germany: courts balance degree of intrusion and bad faith by police with

seriousness of the offence and importance of evidence. Exclusion may occur even if

no illegality occurred.

Internal police discipline important in all these countries

POLICE POWERS AND DRUG-RELATED OFFENCES

Prepared For The Senate Special Committee On Illegal Drugs

Gérald Lafrenière

Law and Government Division

6 March 2001

LIBRARY OF PARLIAMENT

1. Arrest with Warrant

A police officer to whom a warrant is directed has the authority to arrest the accused in the province where it was issued or – in the case of "fresh pursuit" – anywhere in Canada. There are also procedures that allow the execution of a warrant in another province.

2. Arrest without Warrant

Subsection 494(1)(a) provides that a person is authorized to arrest without warrant a person he or she finds committing an indictable offence

Subsection 494(1)(b), meanwhile, provides that a person is authorized to arrest without warrant a person who, on reasonable grounds, he or she believes has committed a criminal offence and is escaping from and freshly pursued by persons who have lawful authority to arrest that person

Reasonable grounds: "credibly-based probability" or, in other words, some factual basis for

the belief

those facts must be such as would cause a reasonable person placed in the position of the

arresting person to believe, or to have a strong and honest belief, that the person had probably

committed an offence

495(1)(a) authorizes a police officer to arrest without warrant a person who has committed an

indictable offence (lower requirement than for private citizen, does not need to find the

arrestee in the process of committing the offence)

Subsection 495(1)(b) authorizes a police officer to arrest without warrant a person he or she

finds committing a criminal offence.

495(1)(c) authorizes a police officer to arrest without warrant a person in respect of whom he or

she has reasonable grounds to believe that a warrant of arrest or committal is in force within the

territorial jurisdiction in which the person is found.

Subsection 495(2) places limitations on the powers to arrest without warrant with respect to

certain offences. (where public interest may be satisfied without the arrest. Alternatives include

serving the accused with a notice to appear in court or to lay information charging the accused

with a justice of the peace)

Interrogation

A police officer, in the course of his or her duties, is authorized to question individuals and may

invite individuals to accompany him or her to the police station for that purpose. Generally,

however, there is no obligation on the individual to answer these questions or to accept the

invitation.

A confession is defined in law as a statement either in writing or given orally by a person

accused of a crime which shows or tends to show that he is guilty of the crime with which he is

charged. It can be an admission of guilt or an admission of any fact which tends to prove his

guilt.

The general rule (for admissibility of evidence) is that the Crown will have to prove that any

statement made by an accused was made voluntarily and was the product of a conscious

operating mind.

Problems with involuntary confessions: unreliable, could be in response to a threat or promise

or inducement, acceptance would condone oppressive conduct by police (oppressive condition

sap free-will).

The prosecution has the burden of showing that the statement was made voluntarily and this

issue will be determined at a hearing (known as a voir dire) conducted by the trial judge

Nothing strictly prohibits the police from merely tricking or manoeuvring the accused into

making a statement

However, an explicit offer "to procure lenient treatment in return for a confession is clearly a

very strong inducement, and will warrant exclusion in all but exceptional circumstances.

If just stating that accused will feel better after confessing, that’s fine

oppressive conditions and inducements can operate together to exclude confessions (depends

on context)

the Young Offenders Act sets out special rules regarding the admissibility of statements made by

young persons.

The Right to Remain Silent

the right to remain silent is protected as a fundamental principle of justice under section 7 of

the Charter

there is nothing in the rule to prohibit the police from questioning the accused in the absence of

counsel after the accused has retained counsel

applies only after detention (because then the state is in control of the accused)

This would be the case regardless of whether the agent used to subvert the accused’s right was

a cellmate, acting at the time as a police informant, or an undercover police officer.

When the police use subterfuge (fake cellmate) to interrogate an accused after he has advised

them that he does not wish to speak to them, they are improperly eliciting information

Only if the court is satisfied that its reception would be likely to bring the administration of

justice into disrepute can the evidence be rejected

Entrapement

Contributes to the commission of a crime: Such conduct which artificially propagates and

induces crime would risk criminalizing non-predisposed individuals and undermine public

confidence in and community respect for the administration of justice.

Entrapment is based on the common law doctrine of abuse of process.

When it is unacceptable (only one is needed to prove entrapment by the accused:

the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or

having a reasonable suspicion or acting in the course of a bona fide inquiry, the police go beyond providing an opportunity and induce the commission of an offence. → leads to a stay of proceedings

Requires an objective assessment of police conduct (non-exhaustive list of criteria):

the type of crime being investigated and the availability of other techniques for the police

detection of its commission;

whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

the persistence and number of attempts made by the police before the accused agreed to committing the offence;

the type of inducement used by the police, including deceit, fraud, trickery or reward; the timing of the police conduct, in particular whether the police have instigated the

offence or become involved in ongoing criminal activity; whether the police conduct involves an exploitation of human characteristics such as the

emotions of compassion, sympathy and friendship; whether the police appear to have exploited a particular vulnerability of a person such as

a mental handicap or a substance addiction; the proportionality between the police involvement, as compared to the accused,

including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

the existence of any threats, implied or express, made to the accused by the police or their agents; and

whether the police conduct is directed at undermining other constitutional values.()

Illegal (police) activities Doctrine based on abuse of process Stems from increasing complexity of criminality (especially in the domain of

narcotics) there is a residual discretion in a trial court judge to stay proceedings where compelling an

accused to stand trial would violate those fundamental principles of justice which underlie the

community’s sense of fair play and decency and to prevent the abuse of a court’s process

through oppressive or vexatious proceedings

Section 3 of the Narcotic Control Regulations authorizes members of police forces to possess

narcotics where such "possession is for the purposes of and in connection with such

employment."

Police are also exempted from trafficking, importation or exportation and production offences,

under the Controlled Drugs and Substances Act (Police Enforcement) Regulations,

However, this does not amount to a complete immunity.

DATE: NOVEMBER 21, 2016

INTERROGATIONReadings

R v. Hebert (1990 SCC):

Facts Accused consulted counsel and advised the police that he did not wish to make a statement to them.

Tricked into making a statement by the ruse of an undercover police officer placed in the cell.

Issues Is this a violation of Charter rights?If so, is this evidence inadmissible?

Held Yes, yes.

Reasoning Appellant’s liberty at stake under s7 of the Charter. We must look at the basic tenets of our legal system to determine whether the method of obtaining the statement violates our principles of fundamental justice.

The CML rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the right to choose whether to speak to the authorities or remain silent. Courts must adopt an approach to pre-trial interrogation, which emphasizes the rights of the detained person to make a meaningful choice and permits the rejection of statements that have been obtained unfairly in circumstances that

violate that right of choice.

Right to silence is not an absolute right; statements made by a suspect would be excluded unless the accused waived his/her right to silence. Waiver is a subjective concept dependent on the accused’s knowing that he is speaking to the authorities when in detention. So, if the suspect were unaware that they are speaking to a police officer, the Crown cannot establish waiver.

McLachlin adopts an objective approach:

o The police can question the accused in the absence of counsel, if they are not posing undercover.

o It only applies to detention; undercover operations prior to detention don’t raise the same considerations.

o The right to silence does not affect voluntary statements made to fellow cell-mates. The violation of the suspect’s rights only occurs when the Crown acts to subvert the suspect’s constitutional right to choose not to make a statement to the authorities.

o Distinction b/w undercover agents to observe the suspect and the use of undercover agents to actively elicit information in violation of the suspect’s choice to remain silent.

The essence of the right to silence is that the suspect be given the freedom to choose.

Ratio The right to silence is a principle of fundamental justice and as such is protected under section 7. Once in police custody, an accused's right cannot be undermined through acts of police trickery. However, if the accused were to divulge information to an informer or undercover agent of their own free will then the statements could be used against them.

Comments/Other Notes

In R v. Liew (1999), a majority of the SCC found that the right to silence was NOT violated in a case where an undercover police officer posed as a cell-mate of the accused but did not initiate the conversation resulting in incriminating statements.

In R v. Singh (2007) it was held by the SCC that the right to remain silent does not prohibit police from continuing to attempt to elicit evidence from a suspect who asserted his right to silence 18 times.

Miranda in Comparative Law – Stephen C. Thaman

· Post-inquisitorial systems are moving towards awarding criminal suspects more protection in their confrontations with police/other officials – essentially, the adoption of Miranda rights.

· Only the UK has moved regressively with the enactment of S34 of the CJPOA in 1994 which allows comment on a suspect’s exercise of the right to remain silent, putting more pressure on the individual to submit to interrogation.

· If America reforms the law of interrogation it can move in one of two directions:

o More inquisitorial form of procedure (historically backwards). Aimed at making the suspect a prime source of evidence to be used in his own prosecution.

o Away from an inquisitorial form of procedure like on the European continent, by strengthening the right to counsel during pre-trial confrontations with police/other law enforcement personnel, and granting the individual autonomy in the decision whether to speak in his own defense or accept guilt and throw himself at the mercy of the court.

· Continental European system encourages the defendant to speak by not dividing trials into “guilt” and “penalty” phases – so, if the court is to hear mitigating evidence, it must be before the guilt question has been decided. This induces most European defendants to speak both before and during trial.

· In America, the “accused speaks” in upwards of 90% of all cases in the form of a guilty plea.

· Thaman is questioning the fact that in England, America, Germany, the police are allowed to question the accused in the absence of counsel; is this effectively a waiver of the rights to counsel/remain silent, and use many of the same psychological tactics documented in Miranda?

· Italy has eliminated police interrogation as a source of admissible incriminating evidence. Interrogation of suspects permitted only on their motion, and only when it will aid in their defense. This is another option.

· Interrogation could be done by the judge/investigating magistrate like in some European countries.

· Abolishing police interrogation would not necessarily result in fewer convictions; confessions in many cases are not used to ascertain the truth but instead to facilitate the imposition of more severe punishments.

· The current interrogation system allows suspects and accused individuals to aid their own convictions by compelling them to a greater degree to submit to interrogations.

· Police also given a free hand at interrogation of juveniles/the mentally retarded. Disabled individuals are not particularly good candidates for comprehending their constitutional rights or being induced to confess to crimes they did not commit. They become subject to the death penalty if convicted of capital murder.

“You’re guilty, now confess: False admissions put police’s favourite interrogation tactic under scrutiny” – National Post, Nov 25, 2011

· Talks about accusatory tactics of the Reid Technique – this has come under fire for the risk of false confessions and Charter violations.

· Strategy in which innocence is not an option.

· Smyth (interrogator who got a confession out of Russell Williams) – badgered a young vulnerable man to falsely confess to a crime. 26 yr old ON man whom the judge described as having “extremely low” intellectual functioning, an intended outcome of the classic application of the Reid Technique. $50,000 awarded for false imprisonment.

· What is the Reid Technique?

o Officer will display understanding/sympathy to minimize blame.

o Moves aggressively into physical space (interrogator often has a wheeled chair, the suspect a fixed one)

o Interrogator suggests alternate scenarios of the crime, each worse than the next to encourage the subject to confess to the lesser crime.

o When the subject protests his/her innocence and tells a story conflicting with the police theory of guilt, the interrogator talks over the subject.

o Instigation that the crime is already solved and the only thing remaining is deciding the punishment.

· In the case of Dixon, innocence is not an option. Facts: There was a robbery, a call came in to 911 saying that a white man with a buzz cut and white shoes was breaking into a jewellery store. Officers who responded lost sight of the man during a chase and ended up arresting Dixon, a black man with a shaved head wearing black boots who just happened to be walking by. Had an alibi – he had just got off the bus.

· Alternative to the Reid Technique: PEACE

o Preparation and planning

o Engage and explain

o Account

o Closure

o Evaluation

Lecture Notes

· In a state that seeks to maximize the rights to privacy of individuals, there is really no reason for warrantless searches etc.

· The judge exists to guarantee your liberties, and make sure your privacy isn’t unduly encroached upon

· There has to be a certain tolerance for the fact that the police may ask for a warrant under some circumstances.

· The regime for warrantless arrests is stricter than for those with a warrant, that have gone to a judge.

· What is common b/w warrantless searches, search warrants, warrantless arrests and arrest warrants? à There must be REASONABLE GROUNDS for this to be justified.

· What counts as reasonable is sometimes tricky.

Search Warrant Warrantless Search Arrest Warrant Warrantless Arrest

The Charter requires that for all warrants police must provide reasonable and probably grounds established upon oath…search?”

Exigent circumstances à it would be impractical to obtain a warrant.

Even with a valid arrest warrant, you may not be able to enter premises without adequate warning.

Even more invasive.There’s often a fear that the person will escape

· What is the police allowed to do upon arresting someone?

o Must inform them of their rights

o Can search their person

· What makes random stops of motorists legal? Or at the airport, for that matter?

o Licensed activity, subject to regulation

o Kind of like a contract you enter into with the state when you obtain the license

· How do the inquisitorial and accusatorial traditions affect interrogation and the right to remain silent?

o Inquisitorial system: not a competition b/w two systems; really based on magistrates investigating truth. Certainly, then, at trial, there’s quite a high chance

that you will have to testify and there is some negative inference if you decide not to testify and not cooperate with the state.

o Accusatorial system: you have no obligation to help them with your testimony.

· Common law confession rule: confession needs to be proved to be voluntary in order for it to be admissible.

o R v. Oickle is the leading case on this matter.

o Established relevant factors in assessing whether a confession is valid:

§ Threats or promises

§ Oppression

§ Operating mind

§ Police trickery

· Charter section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

· Charter section 10: everyone has the right on arrest or detention (a) to be informed promptly of the reasons thereof (b) to retain and instruct counsel without delay and to be informed of that right.

· If police pose as undercover before you are arrested to get info out of you, that is a valid confession. This is because at this point you are not under police coercion. The right to silence only works once you’ve been arrested; not a general right to silence.

DATE: November 23, 2016 TOPIC: Custody and Bail NOTES:

· From a human rights perspective, what principles are implicated by preventive detention?

o Freedom of persono Presumption of innocenceo Right not to be arbitrarily denied bail (s. 11 of the Charter)

· What are the three grounds on the basis of which someone can be detained pending trial?

o Flight risko Commit a serious offenceo Maintain the confidence in the justice system

· In R v. St. Cloud (2015): SCC says three criteria to deny bail are independent (it’s its own ground). To see whether detention is necessary under 3rd condition: to maintain the confidence in the administration of justice (use 4 criteria):

§ Strength of the prosecution’s case§ Objective gravity of the offence§ Consider the circumstances around the case and whether a

firearm was used.§ Whether accused is liable for a potentially lengthy term of

imprisonment.· R. v. Morales (1992): s. 515(10)(b): When “detention is necessary in the public

interest of for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit a criminal offence or interfere with the administration of justice” à struck down because it’s too vague, now just “the administration of justice” READINGS: Webster et al. “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” Current Issues Crim. Just. 21 (2009):79.

o Remand populations have increased in Canada while the sentence population has declined

o Article argues that this increase in remand population is due to an increase in risk aversion whereby decisions are passed along to someone else or delayed

o Need to see the hidden costs of a large remand population

R. v. Morales, [1992] 3 S.C.R. 711 (only the summary)

Facts: Accused was charged with narcotic offences and denied bail.

Issue and holding: It was found that the “public interest” basis for pre-trial detention under s.515 of the Criminal Code violated s. 11(e) of the Charter, the right not to be denied reasonable bail, as it authorized detention on vague and imprecise grounds which could not be saved by s.1. The public safety aspect was not unconstitutional.

Reasoning (Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ): Denial of bail must only occur in a narrow set of circumstances and must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system

(Dissent: L’Heureux-Dubé and Gonthier JJ says “public interest” is not vague).

Notes/Thoughts:

R c. Anoussis, 2008 QCCQ 8100

Facts: Accused charged with assault causing bodily harm and mischief of a value less than $5000. Prosecution had no objection to bail, provided certain conditions including a deposit of $500.

Issue and holding: Should the accused be required to provide a monetary deposit? Judge allowed the interim release of the accused on conditions, but refused the submission for a condition of cash deposit because it was not justified.

Reasoning: Part XVI of the Code recognizes 3 reasons for which interim release may be denied: 1) Flight from justice; 2) Protection from the accused; and, 3) securing the administration of justice from discredit. Parliament has made clear that cash bail can be justified in exceptional circumstances if the prosecution shows the code. Need to respect the ladder principle (release favoured at the earliest reasonable opportunity and, having regard to the risk of flight and public protection, on the least onerous grounds). Onus is on prosecutor to justify cash condition. Doesn’t specify all situations in which a cash condition would be justified.

Notes/Thoughts:

R v. St. Cloud [2015] SCC 27 (only the summary)

Facts: S charged with one count of aggravated assault under s.268 of the Criminal Code. Crown opposed the interim release of S under s.515(10)(b) and (c).

Issue and holding: Is the pre-trial detention of S justified? In this case, the Superior Court judge intervened even though there was no basis for review, and when all the relevant circumstances are weighed as required by s. 515(1)(c), the detention of S was necessary to maintain confidence in the administration of justice.

Reasoning: To determine whether the detention of an accused is necessary to maintain confidence in the administration of justice – must consider criteria referred to in s. 515(1)(c):

1. Strength of the prosecution’s case (quality of evidence)2. Objective gravity of the offence3. Consider the circumstances around the case and whether a firearm was used

4. Whether accused is liable for a potentially lengthy term of imprisonment.None of these criteria is determinative/exhaustive. After considering these criteria, Court must ask whether detention is necessary to maintain confidence in the administration of justice. It’s a ‘balancing act’ between the perspective of the public (reasonable person) and the values of the Charter.

Judge can review an initial decision of detention or release in only 3 situations:1. Where there is admissible new evidence if that evidence shows a material and

relevant change in the circumstances of the case2. Where the impugned decision contains an error of law3. Where the decision is clearly inappropriate

Notes/Thoughts:

R v. Wesley, 2002 BCPC 717

Facts: Wesley, charged with a break and enter, seeks to be released on a $50 000 surety. His fingerprints were found all over the residence and he made an inculpatory statement to the police. There is a presumption under s.515 of the Criminal Code, that an accused person facing charges will be released on his own undertaking (b/c of the presumption of innocence).

Issue and holding: Did the Crown met the burden “on a balance of probabilities” of satisfying the conditions for detention? Yes, detention is ordered.

Reasoning: As Wesley is an Aboriginal offender, Gladue principles must be employed. Court met the burden on the secondary ground (detention is necessary for the protection or safety of the public) and on the tertiary ground (detention is necessary in order to maintain confidence in the administration of justice – considering the apparent strength of the Crown’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment).

Notes/Thoughts: La Rosa, A-M. “A Tremendous Challenge of the International Criminal Tribunals: Reconciling the Requirements of International Humanitarian Law with those of Fair Trial” International Review of the Red Cross 37, no. 321 (1997): 635-50, only section on pre-trial detention.

- Article considers the possibility of reconciling the repression of serious violations of humanitarian law with full observance of the rights of the accused

o Scope of admissibility of the consistent pattern of conduct relevant to serious violations of humanitarian law, as provided for in Rule 93 of the Rules of Procedure and Evidence à acts/evidence which show a consistent pattern of behaviour are admissible

o Right to provisional release until the defendant is acquitted or found guilty à provisional release is the exception, not the rule

“Supreme Court Restores Credit for Pre-Trial Jail Time” Thestar.com.

- Truth and Sentencing Act (2009) curbed judges’ ability to give a break on sentencing (which previously the Criminal Code had allowed for 2:1 and even 3:1 credits)

- Unanimous decision that new starting point is 1:1 for credits for pre-trial detention, but can go up to the 1.5:1 maximum in many cases

**************************************************************************************

DATE: November 28th, 2016TOPIC: Interrogation

NOTES: Miranda’s rights – judges have to be convinced that a statement made

during the interrogation was voluntary made (test of admissibility). In Canada, s.7 of the Charter implies a “Right to life, liberty and security”, and s.10 says that “Everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefor, (b) to retain and instruct counsel without delay and to be informed of that right”

The Reid Technique – (a) making the suspect think that police possess all the evidence to incriminate him (presumed guilty) – trickery (make up evidence, false video, witness…), (b) makes the suspect think that the interrogation is about determining the punishment rather than the guilt of the suspect (c) makes the suspect want to look for more indulgent measures by confessing (ex. police tells you that someone has turned you in)

READINGS:

Slobogin, Christopher. “ An Empirically Based Comparison of American and European Regulatory Approaches to Police Investigation .” In Adversarial versus Inquisitorial Justice , 27–54. Springer, 2003, read pages 40 to 44

US laws concerning interrogations

Focus on whether the statements obtained in the process of interrogating someone where voluntary. If not, the interrogation process was deemed to have violated the suspect’s due process rights under the 5th and the 6th Amendments of the Constitution

To determine the voluntariness of the process, the Fikes v. Alabama (1957) test is used: you have to look at the totality of the circumstances surrounding the confession by paying attention to the way the police treated the suspect, and whether they exploited the vulnerabilities of the suspect

Principle underlying this process: the US is an inquisitorial system, “a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth”

2 other tests were added with time: the Massiah v. United States test (1964), which requires that under the 6th Amendment suspects that have been formally charged are entitled to counsel during interrogation, and the Miranda v. Arizona test (1966), which requires that all suspects subjected to custodial interrogation are entitled to four warnings (the suspect has the right to remain silent, that anything he says might be used against him, that he has the right to have counsel present during interrogation, and that if he cannot afford an attorney one will be appointed for him), and that any confessions obtained without giving these warnings to the suspect were excluded from evidence

The Supreme Court has since limited Miranda’s use in instances where the police action was not coercive enough to violate the 5th Amendment, and narrowed the scope of exclusion after a Miranda violation with the help of the 4th Amendment

Differences between American and European laws concerning interrogations

England – a defendant has to receive caution about the the right to remain silent as soon as there are grounds to suspect him of criminal activity, while Miranda is only used once the suspect is in custody. In England, the police also has to tell the suspect that his silence can seem suspect, and only has to tell him that they are entitled to counsel once he’s in the police station

France – the suspects are informed of their right to remain silent and consult counsel during detention, and records of these warnings are kept

Germany – suspects must be informed of their right to remain silent as well as the subject matter of the investigation if they are the focus of said investigation. They have no right to counsel during the interrogation and the state doesn’t have to provide one if they’re indigent. Evidence obtained during informal interviews that take place before the warnings are given are admitted in court. If the police use certain techniques the evidence will be excluded (ex: hypnosis, illegal promises…)

In all 3 countries, if the police use physical coercion to get a confession, the evidence will in principle be excluded.

Stephen C Thaman, “ Miranda in Comparative Law ” (2001) 45 St Louis LJ 581. (conclusion only!)

Over the years, the Miranda warnings have been adopted by several post-inquisitorial European countries (Germany, Italy, Spain…) that want to give more rights to criminal suspects that are confronted to the police.

In Italy, Germany and England, Miranda-like warnings must be given whether the suspect is in custody or not, making them more protective than Miranda itself

The US has two options when wanting to reform the law of interrogation: go back to a more inquisitorial form of procedure that makes the suspect a prime source for evidence that is to be used against him, or move away from that by strengthening the suspects’ rights (push for counsel to be more present at the pre-trial level+ and let the suspects decide whether they want to speak in their own defense or accept guilt)

Is the current system that’s in place in the US necessary if the counsel is absent? Letting the police question the suspects without the presence of counsel means that the police can use the tactics that Miranda tries to prevent (threats that are short of coercion for ex) after reading the suspects their rights.

Alternative solution: In Italy, police interrogation is not a source of admissible incriminating evidence anymore, and suspects are only permitted to be interrogated when they think it will aid their defense

The old CML jurisdictions are moving in an inquisitorial direction by advocating for the principle of material truth while the post-inquisitorial jurisdictions in Europe are questioning said principle

Getting rid of police interrogation in the US wouldn’t necessarily lead to fewer convictions since most of the time confessions aren’t used to ascertain the truth but to lead to more severe punishment for the suspects. In that case pushing suspects to aid their convictions by pushing them to submit to interrogations in a system whose main goal is to punish suspects rather than finding the truth, might do more harm than good

“You’re Guilty, Now Confess: False Admissions Put Police’s Favourite Interrogation Tactic under Scrutiny.” National Post. Accessed November 18, 2016

The Reid Technique, an interrogation strategy in wide use by police across Canada that has come under fire recently for the risk of false confessions and Charter violations

What is the Reid Technique? “an initial fact-finding interview is followed by confrontation, with police claiming to know the suspect is guilty. Deceitful evidence can be described, such as non-existent surveillance video, and real evidence exaggerated. Other people might be condemned for their roles in the crime in order to lessen the responsibility of the interviewee, and his redeeming qualities might be highlighted, such as honesty or compassion, to encourage a confession with an explanation”

The officer will pretend to be understanding before moving aggressively into the suspect’s physical space and suggesting “alternate scenarios of the crime, each worse than the next, to encourage the subject to confess to the lesser of the two”. When the suspect claims to be innocent, the officer will purposely talk over him and tell him how harsh the punishment will be instead of listening or taking notes

Canadian police officers are not allowed to make explicit threats against a suspect from making explicit threats, which the Reid Technique often does in an implicit way

Alternative to the Reid technique: the PEACE (preparation and planning) method, which focuses on “falsifying hypotheses rather than proving hunches” and on learning the truth instead of obtaining confessions

R. v. Hebert [1990] 2 SCR 1 (excerpts)

R. v. Hebert

Facts:In 1987, H. was arrested for armed robbery. Once he consulted counsel, he decided to remain silent. He was put in the same cell as a police officer disguised as an arrested suspect. Said officer engaged in a conversation with him. H made several incriminating statements. H. won at the trial level but lost at the appeal level.

Issue and holding:Does a statement made by a detained person to an undercover police officer violates the rights of the accused under the Canadian Charter of Rights and Freedom? Yes, the appeal was allowed

Reasoning (McLachlin):· The purpose of s.7 is to preserve the rights of the suspect and to maintain the integrity of the CJ system· The right to silence is a principle of fundamental justice, which means that it is protected under section 7 of the Charter· The right to silence in pre-trial detention is defined objectively, and isn’t

absolute. The scope proposed by the court:Ø Nothing in the right prohibits the police from questioning the accused

in the absence of counsel after the accused has retained counselØ It only applies after detentionØ the right to silence predicated on the suspect's right to choose freely

whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cell mates

Ø there’s a distinction between undercover agents that observe the suspect and undercover agents that actively elicit information from the suspect (this violates the right to silence)

· In this case, the suspect exercised his right to silence, and the Crown violated this right.· In R. v Liew, the SCC determined that the right to silence is not violated if an undercover cop that’s passing for a cellmate didn’t initiate the conversation that resulted in incriminating statements· In R. v. Singh, the SCC determined that the right to remain silent doesn’t prohibit the police from continuing to try to elicit evidence from a suspect that used his right to remain silent 18 times

Questions:

Immediately before arresting X, the police posed as hardened criminals in order to elicit a confession. Is that a violation to the right to remain silent?

Y is a collaborator of the police. He is placed in detention with X in the hope that he will extract information from X. Is that a violation to the right to remain silent?

After telling a suspect he will be released whatever happens, you ask him “for the record, whether he did it” insisting that under existing Canadian law nothing said in such conditions can be held against he accused. Confession valid or not?

Why would someone who is innocent decide not to ask for a lawyer?********************************************************************

DATE: November 30th, 2016

TOPIC: Presumption of Innocence

NOTES:

(Will summarize my notes as soon as I get my notebook back (next week))

READINGS:

“The Presumption of Innocence: The International Perspective” By Lisa Silver, January 13th 2012.

- Presumption of innocence is a concept that is firmly entrenched in the Anglo-American criminal justice system.

- From its development and acceptance in the Western legal tradition, it has made its way to International human rights documents, which consider that the presumption of innocence is essential for a fair trial.

- Presumption of innocence protection finds itself in art. 11(I) of the Universal Declaration of Human Rights.

- Considering the English Common Law origins, it isn’t surprising that Canada and USA easily implemented this principle in their systems.

- In the inquisitorial system, its implementation isn’t as simple: in France, it doesn’t come from case law but rather from the political and philosophical document of Declaration of Man and of Citizen of 1789.

- In Germany, it was only implemented after WWII from a human rights document.

- In the last decade, Russia and Spain have implemented a jury trial system, requiring for them to include the presumption of innocence.

- In China, there is neither a presumption of innocence nor a presumption of guilt. They rather presume nothing and deduce the truth from given facts.

“Assuming that the Defendant Is Not Guilty: The presumption of Innocence in the German System of Criminal Justice” By Thomas Weigend, p. 285 to 293

Introduction- Difficult to determine exact meaning of presumption of innocence at the

international level.- It is a much admired principle but represents only a legal fiction.- Author tries to prove this point through the examination of German Legal

System: you’d expect that such an important principle would be enshrined in the country’s Constitution. But yet, its only appearance is in a human rights document that dates of 1952.

- Despite its absence in statutory law, it was still given Constitutional importance in a case by Germany’s highest Constitutional court.

- But this recognition of importance does not say much regarding the content of the presumption of innocence, especially in an inquisitorial system.

The Content of the Presumption of Innocence- What is actually presumed? - In evidence law, a presumption is a conclusion drawn from a given set of

facts.

- Such presumptions are based on general experience, and can usually be rebutted in individual cases.

- Not the case with the presumption of innocence: it isn’t derived from any facts, and does not derive from general experience.

- The presumption of innocence is therefore either an assumption, or a legal fiction: we “pretend” that the person has not committed a crime.

- It requires the criminal justice system to pretend that an accused is innocent, even though there is substantial evidence leading to the probability that he or she is actually guilty.

- It works against experience and innocence. The law only entertains this fiction because of the context in which the presumption operates.

The Positive Function of the Presumption of Innocence- The presumption takes place when an official raises suspicion that a person

has committed a crime and that the criminal process is initiated.- Its objective is to protect the suspect from overbearing of the state.- Why does he need this protection? - 1. The very suspicion of an individual has serious social-psychological

consequences; it doubts his trustworthyness as a citizen.- 2. The rigours of the criminal process and the great social interest in finding

out if the suspect is guilty or not allows for the State to reduce one’s individual liberties.

- Therefore, reduced social status + State’s far-reaching powers leave the suspect at an especially vulnerable position.

- The State can use its powers to already start punishing him (provisionally keeping his materials, detaining him during the process, etc), from the “general experience” that suspects usually are found to be guilty.

- Presumption of innocence exists to limit these real risks.- A typical example of the operation of the presumption is pre-trial detention.

What the Presumption of Innocence is Not- So far, we know that it precludes premature pronouncements of guilt and

acts based on assumptions of guilt, applies only during the criminal process and concerns only state officials.

- In many systems, it is considered the mother guarantee of all procedural rights.

- Technically, this would mean that even criminal investigations cannot be initiated against a suspect, as that would imply that he or she is not innocent. It is therefore wrong to assume that all procedural rights derive from the presumption of innocence.

- The relationship between the presumption of innocence and the right to an impartial tribunal is precarious: the former only concerns state officials, whereas the latter exists whether state officials are concerned or not, therefore independently from the presumption of innocence.

- The presumption of innocence is not a general claim of innocence to all citizens. Private individuals can suspect whatever they want from anyone; same thing for the media. The presumption of innocence only precludes state officials of expressing ideas or thoughts that may depict a person as guilty during criminal process.

The Presumption of Innocence and the Burden of Proof- In the Anglo-American understanding, the presumption of innocence can

only be overridden if a proof of guilt is over reasonable doubt.- The issue in the german system, on the contrary to a common-law based

system, is the transfer from the presumption of innocence to the proven guilt beyond reasonable doubt.

- The German system does not have any “parties” on whom a burden of proof is set; it is all about the unilateral search for truth from the court.

- How can a presumption of innocence operate in an inquisitorial system, where the only actors are judges, without any formal procedural rules, who have to evaluate evidence on their own in order to determine an accused’s guilt?

- In an inquisitorial system, overcoming the presumption of innocence cannot mean that the prosecutor has presented enough evidence to prove the accused’s guilt- he or she can be quite passive, and so can be the defendant’s lawyer; they are not the main actors in the evaluation of the guilt. If there is no burden of proof on the prosecutor, then how can the court overcome the presumption of innocence?

- The answer is that the court must be “convinced”, through the assessment of the evidence, that the accused is guilty.

- If, after evaluating all evidence, the court is still doubting the accused’s guilt, then they must acquit him or her.

- The German system requires for the court to give extensive justification for both an acquittal and a conviction, that are both subject to review on appeal.

“Four Threats to the Presumption of Innocence” By Andrew Ashworth, p.241-279

1. The Context of Controlling Crime- It is often assumed that one of the basic functions of the modern state is to

protect its citizens from crime.- However, in the second half of the 20th century, crime rates has increased

to levels that are considered abnormally high.- The response to this is to toughen up measures by the State in the name of

public protection and security. However, this creates a threat to the presumption of innocence.

- The British government has tended to have two approaches: 1. Increase the severity of the penalties or 2. Increase the severity of treatment towards those who are most at risk of affection public safety.

2. The Presumption of Innocence as a Human Right- As it finds its place in each human rights document, it is safe to say that it is

the least controversial right.- It operates at the criminal trial and at the criminal process.- The former means that the prosecution must bear the burden of proving the

accused’s guilt beyond reasonable doubt, while the former precluded the state from any compulsory methods before the trial. The narrow sense of the presumption is regarding the burden of proof at trial.

- Its most famous endorsement at common law comes from the House of Lords decision in Woolmington v Director of Public Prosecutions.

3. The Rationale of the Presumption of Innocence- Does the presumption of innocence deserve its position as a fundamental

right?a) Censure and punishment- As the State is required to protect its citizens, it must have minimal

procedural ways to do so. These procedures sometimes require the violation of some individual rights. For example, a violation of the right to personal property when the accused is fined, or a right to liberty when one is imprisoned.

- These infringements are only legitimate if they have been achieved with proper procedural justice- there must be fair procedures such that a fundamental right of an innocent to not be convicted (Dworkin) be respected.

- The innocent must therefore be protected from conviction, as criminal conviction constitutes public censure and leads to liability to punishment, which are invasions of rights. Presumption of innocence is therefore vital.

b) the fragility of fact-finding at trials- There is never absolute accuracy at finding facts during trial.- Although scientific evidence is taking increasing importance, many cases

depend on eyewitnesses’ feedback, which represents a large uncertainty.- Errors can be very costly for defendants in these situations.

c) proper relationship between state and citizen- In a free and open democratic society, the presumption of innocence is

essential for the relationship between state and citizen. - This means that, with the presumption of innocence, an accused should not

be required to provide a defence unless the prosecution has enough evidence to establish a prima facie case.

d) proof beyond reasonable doubt- Raising the standard for conviction from a balance of probabilities to beyond

reasonable doubt is a way to recognize the importance of the fundamental rights that are infringed upon through convictions.

- It gives values to the right to not be convicted when innocent, and takes in account the moral harm of a wrongful conviction.

Four threats to the presumption of innocence exist:

1. Confining the presumption to its evidential-procedural ambit - The first threat relates to the true definition of the presumption itself.- Interpreting the presumption in its evidential-procedural sense, aka that it

obliges the prosecutor to satisfy the burden of proof for guilt, leads to an expansion of exceptions that may affect the presumption.

- There is another threat in the fact that those who plead guilty before the burden of proof is satisfied should be given shorter sentences.

2. Erosion of the presumption through exceptions - Presumption of innocence is never seen as absolute, in no system

whatsoever.- Contemporary conditions lead to increasing situations in which the onus is

reversed in order to respond to global threats of terrorism, organized crime, drug trafficking, etc.

- Considering that the people doing such things are professionals, in the sense that their lawbreaking is carefully considered, legislators are tempted to reverse the burden of proof.

- Legislators will argue that, as the offenses are very serious, it is worth reversing the burden.

- However, this argumentation must be resisted: the whole purpose of the presumption of innocence is to protect individuals from the “public interest” argument to infringe on rights.

3. Evading the presumption through the use of civil orders - Considering that the presumption offers a protection only to those charged

with a criminal offense, the legislator can easily bypass this by creating civil orders against citizens.

- The use of civil orders also allows for the government to bypass the evidential requirements of criminal procedure- notably the presence of witnesses during the trials.

- This is an effective way to bypass the presumption of innocence. However, it has not been very effective at the court level, where the House of Lords has refused to give civil orders the same value as criminal proceedings, nor require lower standards of proof for equivalent proceedings.

4. Side-stepping the presumption by using preventive mechanisms - This threat comes at the pre-trial detention level. After the events of the

11th of september, many governments used indefinite pre-trial detention as an argument to protect citizen from dangers of terrorism, by keeping locked up individuals that represented a certain risk.

“Indigenous courts provides a solution to overrepresentation in Canadian justice system” By Jerome Turner, January 16th 2016

- The terrible treatment of Indigenous peoples by Canadian government is increasingly mainstream knowledge.

- Indigenous people represent 33% of the incarcerated peoples in Canada: widespread change is needed to address the root cause for incarceration and create better outcomes for individuals and communities.

- Gladue case: establishes a different approach for Aboriginal peoples, based on the understanding of the complex issues that they are facing after having greatly suffered as a result of the European settlement.

- Leads to the creation of Aboriginal courts.- To access an Aboriginal court, an accused must have already agreed to a

guilty plea; the presumption of innocence doesn’t apply to it.- The courts are based on a healing-plan; it focuses on the rehabilitation of the

accused. It is a form of restorative justice.- If we really want to treat the injustices that suffer Indigenous peoples, we

must give them their own courts.

“Guilty until proven innocent, in Colorado” By David Post, November 21st, 2016.

- Nelson v Colorado: Nelson was convicted of five charges of sexual assault against her children. Additionally to the prison time she has to serve, she also had to pay certain State fines that state law imposes on citizens found guilty of a crime.

- Because she was unable to pay, the State started drawing money from her inmate decision.

- However, her decision was appealed and overturned; she was acquitted of charges. She therefore asked for the money taken by the State back.

- The Colorado Supreme Court found that they did not have the authorization to make the State pay her back, and told her she would have to file an action under the Colorado Exoneration Act, which compensates victims that have be wrongfully convicted.

- But according to that Act, victims must prove that they were actually innocent, not just “legally” innocent.

- Therefore, according to that Act, Nelson cannot be presumed innocent: she actually has to prove to the Court is she is, in fact, innocent.

- Doesn’t this violate fundamental right to innocence?- Presumption is a tricky legal concept, as it is technically not a presumption

at all: a true presumption is a rule of evidence, having a basis in fact.- Presumption of innocence doesn’t say anything about the accused’s

innocence factually speaking.- It isn’t based on the general experience neither that the accused are

generally free from blame.- It rather works as an anti-presumption: it forbids the fact-finder from

inferring that the defendant that committed a crime, until sufficient proof is presented.

- Nelson is legally innocent. Whether she is factually innocent or not, isn’t relevant. The Colorado Exoneration Act can’t deprive her of her property unless it proves itself that she cannot have it back (which it didn’t).

“The presumption of innocence is essential- but it should never mean presuming the guilt of the accuser” By Malvika Jaganmohan, March 2nd 2015

- We shouldn’t assume that the accuser is lying- When Prince Andrew was accused of having sex with an underage girl, the

alleged victim was pitied for the public opinion that would arise.- When sex accusations arise, we tend to dismiss them as lies; an inclination

to sympathise more with the accused rather than the accuser.- Is it really objective from the law, in such accusations, to presume that the

accused is innocent until proven guilty?- Although the presumption of innocence is a fundamental principle in our

criminal justice system, it should be given a pause when it comes to sexual assault accusations.

- Feminist critiques have stated that in such cases the burden of proof should be revered. In India, as a move for the promotion of anti-rape laws, when a victim says that the act was not consensual, there is a presumption of no consent. However, this creates an incredibly heavy burden on the defendant.

- The problem is not the presumption of innocence itself in court, but rather its cultural consequences: the public doesn’t understand it the same way as the courts do.

- Because of the presumption, we tend to not give the same understanding to the accused.

- The complainant, because of the presumption, is rather brought down and their credibility is publically questioned. As a society, we should be ready to listen to victims rather than aggressively try to bring them down.

- The presumption of innocence has to stop being used as a way to blame the victim.

“Jian Gomeshi, Sexual Violence and the Presumption of Innocence” By Anne Thériault, 28th October 2014

- The presumption of innocence should extend to all parties involved.- When a charming man is accused of sexual assault, the two main arguments

that take over social media are that “you can’t try someone in the court of public opinion” and “innocent until proven guilty”

- Studies have shown that public opinion can influence the outcome of cases in court.

- Very few people consider the “public opinion’ effect of blaming women for crying out rape in order to make profits, not the consequences of supporting Gomeshi on other women who want to talk about their sexual assault experiences.

- The presumption of innocence also means that these women should not be accused of lying until proven otherwise.

“Courtroom is no place for sexual assault cases” By Robert McGarvey, April 7th 2016

- Is Gomeshi’s verdict an indictment that our system is patriarchal and cannot protect women from harm?

- To many women, Gomeshi’s defense attorney, Marie Henein, was betrayed her own sex.

- By his own admission, Gomeshi has a history of violence against women, stating that rough sex is a natural lifestyle choice, just like mountain climbing.

- Gomeshi was probably guilty of the charges, but not legally because of a ancient bias built into our system.

- The presumption of innocence is a strong bias in our judicial system.- The Crown must only prove their case, but the evidence is limited to legally

obtained physical evidence, and the testimony of witnesses. If any part of this evidence is undermined, then there is a reasonable doubt created and a reason for acquittal.

- In the Gomeshi case, the defense strategy was relatively simple: since there is no physical evidence, Henein only proved inconsistencies and lapses of memory in the testimonies.

- Although the public understands the justifications for these lapses, a judge limited by the Common Law precedents cannot.

- Why does this unreasonable bias exist?- In response to the blatant injustices that occurred in the 17th century,

during which the English judicial system was so unfair, bloody and corrupt, the presumption of innocence, in response to the civil revolutions that occurred, was incorporated in the system.

- By their very nature, sexual assault cases lack physical evidence. Therefore, they do not belong in a courtroom.

- With the presumption of innocence of innocence, it is almost impossible to deliver justice.

- Maybe the creating of a separate tribunal for sexual assaults, in which the accused would not be overprotected, should be created.

“Dowry death presumption must be backed by cruelty proof: Supreme Court” Hindusan Times, 20 November 2016

- The Indian Supreme Court has ruled that a presumption of culpability in dowry death cases would be activated if evidence leads to believe that the deceased woman was subject to cruelty for demand of dowry.

- This is in the Evidence Act, in which the presumption of innocence is reversed if a woman dies within seven years of marriage.

- However, Supreme Court has said that if the prosecution cannot prove by coherent evidence that harassment occurred, then it cannot simply take refuge under the Act to hold the person guilty.

“McMeekin: Bill C-35 is smart law” By McMeekin, 24 January 2007- Haper’s Bill C-35 reverses the onus for accused of violent crimes involving

firearms to obtain bail: he or she must prove to the court why they should be left free.

- Before C-35, it was too easy for those charged with firearm offenses to be released on bail.

- Policing and the bail system are two ways to prevent crime rather than deterrence.

- Critics of the Bill have said that it might undermine the presumption of innocence, by imprisoning people that would only be freed after their trial.

- The presumption of innocence has little to do with bail hearings: his or her innocence or guilt is not questioned, it is only his or her flight risk and threat to public safety.

DATE: January 11th, 2017TOPIC: Right to have a lawyer and representationNOTES: The right to representation is not absolute. At the very least, it requires a right to represent yourself (see Milosevic trial). However, a defendant refusing to represent themselves should would not hinder a trial. Representation occurs at the trial and pretrial stages. In other words, immediate access to a lawyer upon arrest does not fall within the category of "representation". Obstacles to the exercise of the right to representation include costs, language, lack of information regarding this right, and the inability to find someone to represent you (discrimination, political cases, etc). The right to representation cannot be invoked against a lawyer who refuses to represent you. Generally, the right to representation is a negative right: the government cannot interfere with your attempt to be represented by counsel. In Canada, legal aid remains severely underfunded. The right to representation is often intertwined with issues of access to legal services and due process. Two categories of cases require government-funded legal aid:

(1) Means test. Individuals whose annual income falls below a certain threshold.

(2) When severe issues of due process arise due to the lack of representation (see Canadian Jurisprudence Regarding the Right to Legal Aid for criteria).

The right to self-represent is supported by liberal CJS. In an accusatorial system, self-representation is likely to be detrimental to the defendant's case. He has no knowledge of applicable laws and procedures, and the Crown is not there to defend or assist him. Self-representation is also detrimental to the adversarial nature of the trial, as the judge will have to move out of his usual position and intervene to assist the defendant. Defendants can also use this right in bad faith and abuse procedures to diminish the judge's authority (see Milosevic case). In an inquisitorial system, self-representation might be less problematic, as the judge is already more involved in the case. Judges can intervene in some issues related to the right to representation. In the Milosevic case , the Tribunal assigned counsel to the defendant without his approval. This was necessary to preserve the integrity of the trial. Judges can also nominate an amicus curiae , who will offer his expertise on the defendant's rights without acting as his counsel.

READINGS: Sussex, Paul Taylor. "Legal Aid: The Silent Crisis" [article]

Legal aid is an integral part of Canada’s legal system. It allows vulnerable to have access to fair trials. Legal aid is a provincial jurisdiction.

New Brunswick (Minister of Health and Community Services) v. G. (J.) [1999]: there is a constitutional obligation to provide legal aid (based on s.7), but only in some circumstances.

Trial Lawyers Association of BC v BC AG: court hearing fees in family law cases are unconstitutional.

Legal aid remains widely unavailable; a "silent crisis". There is no federal policy; discrepancies between provinces.

Ontario wants to expand the role of paralegals to allow them to provide more detailed legal advice, so that counsel will have less work and be more available

Simple Justice , "It Costs More To Win" [blog]

Massachusetts has shifted costs onto defendants for non criminal motor vehicle infractions. Defendants who successfully contest tickets will have to pay filing fees. The Court holds that this shift is of rational basis, and is thus justified.

It is irrational that fighting a ticket is more expensive than the ticket itself. This creates a financial incentive to avoid going through due process and plead guilty.

Pailliez, Caroline. "Jail guard gets new trial because of incompetent lawyer" [article]

A jury had convicted the Def for bringing drugs, booze and cellphones into a Montreal jail. The Court of appeal found that the Def's lawyer “didn’t understand basic rules of law” because he barely read the case. The lawyer was disbarred for two years and a new trial was ordered.

Robichaud, Sean. "Think You Can Represent Yourself on Criminal Charges? Think Again. 13 Reasons That’s a Terrible Idea" [blog post on a law firm website]

This law firm has noticed that many people choose to represent themselves ($). From their perspective, this is worrisome given the life-changing consequences of a criminal trial. They present 13 arguments ("the truth will not save you", "no one is on your side except your lawyer", "you have no ability to negotiate", etc).

Scharf, Michael. "ICTY Appeals Chamber Decision on Slobodan Milosevic’s Right of Self-Representation." [article]

Slobodan Milosevic invokes a right to act as his own lawyer in his war crimes trial at The Hague (initial ruling allowed it).

By acting as his own lawyer, he was able to treat the witnesses, prosecutors and judges in a manner that would earn ordinary defense counsel a citation or incarceration for contempt of court. Thus, affecting the ability of judges to control the dignity of the proceedings.

The two subsequent court decisions conclude that self-representation is a fundamental right.

Trial Chamber: A right to self-representation is not a license to abuse the dignity of the courtroom. Moreover, given Milosevic's poor health, he has to be represented by a lawyer to avoid disruptions in the proceedings. Assigns counsel.

Appeals Chamber: Milosevic refused to cooperate with the assigned counsel. The Trial Chamber went too far in assigning counsel. Milosevic can continue representing himself, but a counsel will be assigned if his health problems cause disruptions.

Burbano, Carolina Villadiego. "In Defense of Latin America’s Indigenous People’s Right to Counsel." [blog]

An Indigenous land tenure activist was murdered in Brazil (Mato Grosso). The trial had to be transferred to Sao Paulo for the purposes of a fair trial

(animosity in Mato Grosso would lead to a biased jury, the Indigenous witnesses were forced to speak in Portuguese).

Some South American countries have constitutionally recognized their multiculturalism and legal pluralism with regards to Indigenous peoples (eg: Bolivia). However, they are still subject to the "official" legal system. They are entitled to additional rights, but these are rarely guaranteed.

Eg: Right to an interpreter in legal processes is recognized, but not enforced. Sometimes, just at trial.

Indigenous people face prejudice in the "official" legal system. Examples: Decisions of Indigenous jurisdictions are not accepted Authorities ask for an interpreter even though the person speaks

Spanish (Mexico) Author encourages governments to more judicial services to Indigenous

peoples. United Nations Office on Drugs and Crimes , "United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems" [Report]Legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law. It includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided for those without sufficient means or when the interests of justice so require.Principles

Right to legal aid. States should guarantee it at the highest level possible (eg: constitution).

Responsibilities of the state. States should (1) consider the provision of legal aid their duty and responsibility, (2) inform people of their rights, the illegality of certain acts, and the functions of the CJS and (3) ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible.

Non-discrimination and equity in access to legal aid. Right to be informed of your right to legal aid and other procedural

safeguards.Guidelines

Provision of legal aid. Whenever States apply a means test to determine eligibility for legal aid, they should ensure that:

Persons whose means exceed the limits of the means test but who cannot afford a lawyer are not excluded from getting legal aid in certain situations;

The criteria for applying the means test are widely publicized; Urgent preliminary legal aid should be awarded while legal aid

eligibility is being determined.

Right to be informed on legal aid. In order to guarantee the right of persons to be informed of their right to legal aid, States should ensure that:

Information is made available to communities, isolated groups and marginalized groups;

Police officers, prosecutors, and officials inform unrepresented persons of their right to legal aid.

Other rights of persons detained, arrested, suspected or accused of, or charged with a criminal offence. States should introduce measures to:

Inform them of (1) their right to remain silent, (2) their right to consult with counsel or, if eligible, with a legal aid provider, and (3) their right to be assisted by an independent counsel at certain stages;

Provide the services of an independent interpreter, whenever necessary, and the translation of documents where appropriate.

Legal aid at the pretrial stage. To ensure that detained persons have prompt access to legal aid in conformity with the law, States should take measures to:

Ensure that police and judicial authorities do not arbitrarily restrict the right or access to legal;

Facilitate access for legal aid providers assigned to provide; Ensure legal representation at all pretrial proceedings and hearings.

Legal aid during court proceedings. To guarantee that every person charged with a criminal offence for which a term of imprisonment or capital punishment may be imposed by a court of law has access to legal aid in all proceedings at court, States should introduce measures to:

Ensure that the accused understands the case against him or her and the possible consequences of the trial;

Ensure that every person charged with a criminal offence has adequate time, facilities and financial support to prepare their defence;

Provide legal aid when the person does not have sufficient means to pay and/or where the interests of justice so require.

Legal aid for victims. States should ensure that: Victims receive legal advice on any aspect of their involvement in the

criminal justice process; Victims are promptly informed by the police and other front-line

respondents of their rights. Lawyers' Rights Watch Canada , "Canadian Jurisprudence Regarding the Right to Legal Aid" [Report]

Introduction Decline in funding for legal aid has led to an increase in questioning

whether the right to have a lawyer is a constitutionally protected. Access to justice is not recognized as a constitutional right.

Is there a general right to legal aid?

Although access to justice is fundamentally important, it does not entail a broad general right to legal counsel (Christie v BC, 2007).

The government does not have a constitutional obligation to provide an accused person with free and immediate 24-hour duty counsel service upon their arrest or detention. Providing the opportunity to speak with counsel is sufficient. (R v Prosper, 1994)

The right to publicly funded legal counsel in certain cases There is a right to government-funded counsel in situations where

counsel is necessary to ensure a fair trial (s. 7 and 11d of the Charter) (R v Rowbotham, 1988). In Rowbotham, the woman was denied legal aid after being accused of drug trafficking because her income was deemed too high; unrepresented, and then convicted. The Court also noted that the right to counsel had become a "social human right", referring to art.14 of the International Convention on Civil Political Rights and art.6 of the European Convention on Human Rights.

Courts have the jurisdiction to stay proceedings until gov-funded counsel is appointed, but cannot tell the gov how to fulfill these duties (Attorney General of Quebec v. R.C., 2002)"

Applicant for state-funded counsel must prove they have applied for legal aid and have not been able to receive it because of income. To determine if the right to fair trial would be compromised without representation, trial judge must consider:(1) the seriousness of the charges,(2) the length and complexity of the proceedings, considering factors such as likelihood of imprisonment, intelligence of the accused and(3) applicant’s ability to participate in their trial and defend

themselves. Civil Proceedings

In civil case, the right to gov-funded counsel has been recognized in limited circumstances.

A woman's claim to legal aid was rejected on the basis that New Brunswick's programme didn't cover cases of temporary custody. The Court held that she had a right to gov-funded counsel (s.7) (New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999). This does not extend to every parent-child relationship (limited circumstances).

Where the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress" (Blencoe v. British Columbia (Human Rights Commission), 2000).

Does not extend to civil suits involving private parties. 2005: court held that the international agreements Canada has

entered into do not create rights to counsel that are not those defined in our Charter.

Hawkins, William. "A Treatise of the Pleas of the Crown; Or, A System of the Principal Matters Relating to That Subject, Digested Under Proper Heads" [doctrine]

The book is an influential treatise on English criminal law (published from 1716 to 1824)

“Every one of common understanding may as properly speak to a matter of fact, as if he were the best lawyer; and that it requires no manner of skill to make a plain and honest defence, which in cases of this kind is always the best”.

DATE: January 13th, 2017 TOPIC: The Right to be Tried Within a Reasonable Delay NOTES: Court delays can result in defendants waiting months or years for their trials. Note than defendants are supposed to be presumed innocent, and so detaining people without bail for long periods of time makes little sense theoretically. The overarching issue is financial and logistical—causes include under-funding or tough-on-crime policies. Delayed trials obviously affect the accused, but keep in mind that they also affect victims. The longer the process lasts, the longer a victim may be re-living his or her nightmare. Question: Why are trial delays a problem?Answer: Various social consequences. Question: Who is responsible for fixing the problem of delays?Answer: Complicated, TBA with handling of new Jordan framework. Question: What are the two main judicial techniques as exemplified by the SCC to deal with the problem of excessive delays?Answer: (1) Morin: Looks back and imposes no presumption. Every case is different, and based on its own merits, and so the burden is on the defense to show that s. 11 is violated.(2) Jordan: Sets a ceiling and cut-off date. Beyond the date there is a presumption that the delays are excessive. Jordan gives the defense a stronger argument, and imposes more onus onto the Crown. Question: How do these two decisions reflect on the role of the judiciary? READINGS:

R v Jordan 2016 SCC 27

Facts:Jordan was charged with a drug offence in December 2008, and his trial went until February 2013. He filed an application under s. 11(b) of the Charter seeking a stay of the proceedings due to the delay. He was convicted, and his application was rejected at trial by the COA.

Issue and holding:Should Jordan’s application to stay the proceedings be allowed? – Yes.

Reasoning:The delay was unreasonable and Jordan’s s. 11(b) right was infringed. The Morin framework is not good anymore, and contributed to a culture of delays and complacency towards them. This new Jordan framework will replace the old Morin one.The Jordan framework: There will be a presumptive ceiling beyond which a delay—from the time the crime is charged to the end of the trial—will be presumed to be unreasonable, unless there are exceptional circumstances. The presumptive ceiling will be 18 months for provincial court cases and 30 months for superior court cases. Delays attributable to the defense or waived by the defense do not count. Once this ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances are the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.à But if it is below the presumptive ceiling, the burden is on the defense to show that the delay is unreasonable. In such a case the defense must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonable should have.

Notes/Thoughts:This case is an overruling of Morin.This was a 5-4 decision: the dissent asserts that a numerical ceiling won’t work, and that a complete overhaul of the Morin framework is unnecessary. They propose a revisal of Morin.The European Court of Human Rights uses an approach closer to the Morin framework.

Courting disaster? The long, long wait for justice in OntarioBy Megan O’Toole in the National Post – June 9, 2012

This article is a look at the causes and results of delays in Ontario Courts. Unfairness to victims, added costs to the system, complications with Legal Aid.Looking at Ontario’s ‘Justice on Target’ initiative, which attempted to speed up delays: “They’re trying to make court appearances more efficient, but they’re trying to do that within an existing system and without applying any new money to it, so that’s where the tension is.”Ontario’s median case length is 105 days. Mascouche fraud trial to proceed despite delaysBy Elias Abboud for CBC News – December 20, 2016 A QC judge turned down requests from an accused person to use the Jordan precedent to have their case thrown out, ruling that the case was complicated, and so it was a reasonable delay. India’s long wait for justice: 27m court cases trapped in legal logjamBy Vidhi Doshi in the Guardian – May 5, 2016 Example of a murder trial in India that has been going on for 22 years.“More than 22m cases are currently pending in India’s district courts. Six million of those have lasted longer than five years. Another 4.5m are waiting to be heard in the high courts and more than 60,000 in the supreme court, according to the most recently available government data. These figures are increasing according to the decennial.” Court delays in the Bronx have defendants waiting years, suit claimsBy Tanzina Vega for CNN – May 10, 2016 Attorneys in the Bronx filed a class action lawsuit alleging court delays at the New York City Criminal Court “have fatally undermined the right to trial” for people charged with low-level offenses like marijuana possession or jumping a subway turnstile.Low funding, high chance for re-offence, affecting people’s lives while they wait.“In 2013, The New York Times reported that thousands of defendants were awaiting felony trials while in jail, hundreds of them for years.” Judge Robert Fremr: “How to Eliminate the Setbacks in the Proceedings Before the International Criminal Tribunals” (December 10, 2010) Judge Robert spent twenty years on the bench as a criminal judge in the Czech Republic, and also served four years on the bench of the International Criminal Tribunal for Rwanda. He is concerned that the system is “often inefficient, delayed and extremely costly.”à “Justice delayed is justice denied.”He outlines several of the issues that result from court delays in international criminal law. European Court Doc Document that outlines how to assess whether a period is reasonable or not.

The Court has ruled that: “the ‘reasonableness’ of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute.”

*** DATE: January 18, 2017TOPIC: The Role, Independence and Impartiality of JudgesNOTES:Role of Judges-Trier of facts-Interpreter of law-Determining what happened through evidentiary rules Challenges to the Independence and Impartiality of the Legal Professions

1. there may be a danger to their independence where they are appointed exclusively by the Executive or Legislature, or even where they are elected

2. a further threat to their independence is posed by lack of security of tenure, as arises in countries where judges are generally employed on temporary contracts

3. inadequate remuneration may also constitute a threat to the independence of judges in that it may for instance make them more amenable to corruption

4. the independence of judges, prosecutors and lawyers is frequently threatened by the refusal of the Executive to allow them to organize freely in professional associations

What is Reasonable Apprehension of Bias?-There is a presumption that judges are impartial, and there is a high threshold to successfully challenge a decision based on reasonable apprehension of bias. The test is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge. In Langstaff v. Marson, 2014 ONCA 510, reasonable apprehension of bias was found against a trial judge who made rulings on liability in a civil sex assault case that was nearly identical to another case from which he had recused himself. Conclusion: Unless judges, prosecutors and lawyers are able to exercise their professional duties freely, independently and impartially, and unless the Executive and the Legislature are likewise always prepared to ensure this independence, the rule of law will slowly but steadily be eroded, and with it effective protection of the rights of the individual. As can be seen, it is the entire structure of a free and democratic constitutional order that is upheld by an independent and impartial Judiciary, independent and impartial prosecutors and independent lawyers.

READINGS: Canadian Superior Courts Association, The JudiciaryAdversarial system of justice - legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented."Many criminal cases - and almost all civil ones - are heard by a judge sitting without a jury. The judge is the "trier of fact," deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether a civil claim has been established on a balance of probabilities or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty."Judge vs. Jury Trial-Anyone who faces five years or more in prison if convicted of a crime has the right, under the Charter, to request a jury trial, and many defendants facing serious offences such as murder opt to have a jury hear their case.-The jurors become the triers of fact and assess the evidence while the judge takes on the role of legal advisor, explaining the law to the jurors.Judicial Independence & ImpartialityThe judiciary is independent from other branches of government. Judges must be able to make courageous, even unpopular decisions knowing that no one - a chief justice, another judge, a government official or even the most powerful politician - can fire them or cut their salaries as retaliation. It is not enough for the judiciary, as an institution, to be independent - individual judges must be seen to be objective and impartial.-"Judges must strive for the highest standards of integrity in both their professional and personal lives. They should be knowledgeable about the law, willing to undertake in-depth legal research, and able to write decisions that are clear and cogent. Their judgment should be sound and they should be able to make informed decisions that will stand up to close scrutiny. Judges should be fair and open-minded, and should appear to be fair and open-minded."-When sentencing, a judge must take into account:

1. the seriousness of the offence2. the offender's background and prospects for rehabilitation3. the need to deter others from committing crimes

-The Canadian Judicial Council, a body of chief justices and associate chief justices from across the country, investigates complaints about the conduct of superior court judges.-Hearings, trials and rulings are open to public scrutiny, so justice is seen to be done and citizens and the media can discuss and criticize the work of the courts.

R. v. Curragh Inc., [1997] 1 S.C.R. 537Facts: The trial judge ordered a stay of the manslaughter charges against the accused, two members of the managerial staff at a coal mine at which an explosion caused the deaths of 26 miners. The respondent alleges that prior to making the order staying the proceedings, the actions and words of the trial judge revealed actual bias.Issue and holding:Issue: Did the words or actions of the trial judge exhibit bias or demonstrate a reasonable apprehension of bias?Held : Yes; appeal dismissed.Reasoning:The Court of Appeal disagreed with the trial judge’s conclusion that the material non-disclosure should result in a stay, found that there was a reasonable apprehension of bias and ordered a new trial.

In privately phoning a senior member of the Attorney General’s staff to request the removal of the Crown attorney in charge of the case and stating that otherwise he would take steps “to secure that end”, the trial judge interfered with the Crown’s conduct of its case and became inappropriately involved in the fray. He should have recused himself, but denied the Crown’s motion for recusal. Where a reasonable apprehension of bias is demonstrated, the trial judge has no further jurisdiction in the proceedings and the only appropriate remedy is a new trial.

“A panel gives 17 reasons Robin Camp shouldn’t remain a judge”, (30 November 2016), online: Macleans.caComplaints from legal experts, public and Alberta's justice minister on Justice Robin Camp's conduct during a 2015 sexual assault trial where he asked a woman why she couldn't just "keep her legs together" to prevent sexual assault:

"The three judges and two lawyers on a Canadian Judicial Council inquiry committee have unanimously concluded that Justice Robin Camp is unfit to remain on the bench, after his conduct in a rape trial gave him a national reputation as the judge who asked a sexual assault complainant why she couldn’t keep her knees together. Their recommendation now goes to the full Canadian Judicial Council, who will pass its own recommendation on Camp’s fate to federal Justice Minister Jody Wilson-Raybould and a possible parliamentary vote."Importance: In the first case of its kind, this committee effectively sketched out limits on what is acceptable or unacceptable to say from the bench when conducting such a trial. Much of what Camp said fell outside those limits, and peddled long-discredited myths about rape and sexual assault victims, the two men and three women on the committee concluded. The Nuremberg Trials: The Justice Trial United States of America v. Alstötter et al. (H)-discussion on the workings of the criminal justice system in Nazi Germany-In the Justice trial, American prosecutors sought to demonstrate a pattern of judicial and prosecutorial support for Nazi programs of persecution, sterilization, extermination, and other gross violations of human rights. In order to prove an individual defendant guilty, prosecutors had to show that the defendant consciously furthered these human rights abuses.-Muller's analysis of the evidence suggests that most German judges--contrary to common opinion--were ultraconservative nationalists who were largely sympathetic to Nazi goals. -The "Nazification" of German law occurred with the willing and enthusiatic help of judges, rather than over their principled objections.-Only a handful of the non-Jewish judges demonstrated real courage in the face of Nazi persecution and violations of civil liberties.-Two features of German law combined to facilitate the Nazi's evil schemes:

1. German law, unlike the law of the United States and many other nations, lacked "higher law" (constitutional or ethical standards) that might be resorted to by judges to avoid the harsh effects of discriminatory laws adopted by the Nazi regime.

2. there was no separation of powers between the executive and judicial branches of government.

Cloud, A Morgan III. “Introduction: Compassion and Judging Conference of Association of American Law Schools: Panel on Compassion and Judging” (B)-role played by compassion in judicial decision-making

-compassion: "sympathetic consciousness of others' distress with a desire to alleviate it"-article states that in some situations, people expect judges to exercise compassion in legal interpretation, even if it strays from the literal language of a law (16), which is why it is so important that a judge have wisdom, experience, integrity, good judgment, etc. (18)-"exercising compassion may simply be an appropriate exercise of the discretionary power inherent in the general realm of the judicial duties in our legal system"-question as to whether it is an essential attribute for a judgeDharshini Sinnadurai,“Apprehending Reasonable Apprehension of Bias | Ontario Court of Appeal, presumption of judicial impartiality, Reasonable Apprehension of Bias”-The formal test for reasonable apprehension of bias is well-established and reflects the Supreme Court jurisprudence laid out in R. v. Campbell, R. v. S. (R. D.), and Wewaykum Indian Band v. Canada. There is a presumption that judges are impartial, and there is a high threshold to successfully challenge a decision based on reasonable apprehension of bias.-At the same time, challenges to a judge’s impartiality necessitate scrutiny over judicial conduct because the integrity of the legal system requires both fairness and the appearance of fairness throughout the court process; without both, public confidence in the system is lost.What are the markers of a reasonable apprehension of bias?-The test is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge. “Tax judge issues rare ruling in own defence”, online: Financial Post-This article discusses the unusual actions of Mr. Justice Patrick J. Boyle, a federal Tax Court judge. He was so bothered by the written argument of an appeal of his case that he issued a 47-page written decision, defending himself against what he believed were unfair characterizations of him, and removing himself from future hearings in the matter.-"While it is possible for judges to recuse themselves from cases before issuing a judgment, it’s unprecedented for a Canadian judge to use a recusal decision to make such a dramatic and public response to an appeal of his own trial decision." Dugard, John. “Should Judges Resign - A Reply to Professor Wacks” (1984) 101 S African LJ 286-Question to consider: whether judges and lawyers do more for justice in South Africa by actively participating in the system than by withdrawing from it and thereby depriving it of some level of legitimacy.

-Wacks argues that the laws of apartheid have limited the judge's power/discretion to the point that it is impossible for him to advance the cause of justice by "liberal" interpretation of the law (292)-Wacks: a judge's participation in the system lends legitimacy to it, therefore he should resign. Wacks believes consequences of conscientious judicial resignations in South Africa would be a "declaration by a judge that the extent of the law's deviation from justice is too great for him to countenance might echo, albeit faintly, through the halls of government." (292)-Therefore on the grounds of utility, he concludes that justice is South Africa would be better served by resignation than by the limited judicial activism still permitted by the law (however, none has resigned on high principle yet, so impact based on speculation)-Author disagrees with Wacks, believing that judges missed the boat to have their resignations be impactful back in 1955 or 1967 (when the principle of indefinite detention without trial was introduced). Now, resignations would be "too little, too late" to have any major impact Office of the High Commissioner for Human Rights, Chapter 4. INDEPENDENCE AND IMPARTIALITY OF JUDGES, PROSECUTORS AND LAWYERS, pp. 116-138.-All general universal and regional human rights instruments guarantee the right to a fair hearing in civil and criminal proceedings before an independent and impartial court or tribunal-Basic Principles on the Independence of the Judiciary, 1985 deal with the following subjects: (i) independence of the Judiciary; (ii) freedom of expression and association; (iii) qualifications, selection and training; (iv) conditions of service and tenure; (v) professional secrecy and immunity; and (vi) discipline, suspension and removalThe notion of institutional independence

Independence as to administrative matters Independence as to financial matters Independence as to decision-making Jurisdictional competence The right and duty to ensure fair court proceedings and give reasoned

decisions QUESTIONS:Q: What is the likely difference between the role of the judge in a criminal trial between the Provincial and the Superior Court? (class)-A: superior court: more serious crimes

Q: if you have a jury, what happens to the judge's role of "trier-of-fact"?-A: it transfers over to the jury

Q: During a trial, you feel that the judge is biased against your client. He makes rude and bullying comments and seems to do everything in his power to secure a conviction. What can you do?-you could talk to the judge about it first

-judge can recuse himself

-Canadian Judicial Council inquiry committee (extreme)

What do you think of the maxim, "justice should not only be done but be seen to be done"... In your opinion, what is the most important reason that Judge Robin Camp lost his job?-obvious: he's sexist, has prejudices, etc.

-but also: it's causing him to take strong positions against the law of Canada

More questions to consider:-differences between judges in the inquisitorial and accusatorial traditions?

-Which is the most important in ascertaining the bias of judges, the subjective or the objective test?

***DATE: January 20, 2017 TOPIC: Prosecutors NOTES: Prosecutors do 2 main things:(1) decide whether to prosecute - more discretionary; more reluctance to encroach on this(2) litigate ("prosecute") - appear in court Independence

· It is more important for prosecutors to be independent when there's more discretion

· problem: the more independent the crown is, the less accountable they are Legality principle

· prosecutions are automated· issue: delays·

Prosecutorial discretion

· Core notion:o Which charges you're seekingo Accepting a guilty plea, decision to repudiate a plea agreemento Decision to pursue a dangerous offender application in the context of

sentencingo Decision to initiate an appeal as a Crown

· What falls under discretion = what is strategico Everything else (i.e. tactics in court, issues of disclosure, what kind of

evidence you bring in) is NOT part of discretion (just part of the decisions you make as a prosecutor)

Private prosecutions

· Used when there's a public feeling that Crown is not prosecuting something they should be

· Not always the case that the Crown is always willing to prosecute every offense in the book

READINGS: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, summary and paragraphs 35-61

R v. Anderson

Facts:A (aboriginal) convicted of impaired driving, which carries a min. sentence of 30 days' imprisonment for 2nd offence, and 120 days imprisonment for subsequent offence. Mandatory min. sentences apply only if Crown notifies accused of its intention to seek a greater punishment prior to any plea. CC served a Notice of intent to seek greater punishment b/c A had 4 previous impaired driving convictions.

Issues and holding:(1) Does s. 7 of the Charter require the Crown to consider an accused Aboriginal status when making decisions that limit the sentencing options available to a judge (i.e. decision to seek a mandatory min. sentence for impaired driving)? No.(2) Is the decision to tender the Notice a matter of "core" prosecutorial discretion? If so, what is the std. by which it may be reviewed? Yes. Reviewable only for abuse of process.

Reasoning:

No constitutional obligation - Crown not constitutionally required to consider Aboriginal status of accused when deciding whether or not to seek a mandatory

min. sentence for impaired driving for 2 reasons:1. Duty to impose a proportionate sentence rests upon judges not Crown

prosecutors.2. The principle of fundamental justice that the accused asks the Court to

recognize doesn't meet the test which governs these principles - namely, it doesn't meet the requirement that a principle "enjoy consensus that the rule/principle is fundamental to the way in which the legal system ought fairly to operate." The principle advanced is contrary to a long-standing and deeply-rooted approach to the division of responsibility b/w Crown prosecutor and the courts.

Prosecutorial discretion· An expansive term - covers all decisions re: nature/extent of the prosecution· Entitled to considerable deference (judicial non-interference is matter of

principle based on doctrine of separation of powers) - esp. when it comes to tactical decisions of counsel

· Reviewable for abuse of process - where there's evidence that CC's conduct is "egregious and seriously compromises trial fairness/integrity of justice system"

· Tendering the Notice was a matter of prosecutorial discretion. In the complete absence of any evidence to support it, the accused's abuse of process argument must fail.

Paras. 35-61· 2 distinct avenues for judicial review of Crown decision making: depends on

whether issue is (1) exercise of prosecutorial discretion or (2) tactics & conduct before the court

· All Crown decision making reviewable for abuse of process· (1) is only reviewable for abuse of process

o Burden of proof for establishing abuse of process lies on the claimant - must be proven on a balance of probabilities

· (2) is subject to wider range of reviewTrial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel

Notes/Thoughts:

Gold, Jordan. “The Victim Quagmire: The Input of Complainants in Domestic Assault Prosecutions” Even in a case where both the perpetrator & victim prefer that charges be withdrawn, there are other interests at stake:

· Public safety concerns

· Specific/general deterrence· Need to set std. of unacceptable behaviour within our society

How much should Crown prosecutors allow complainant input to influence how Crown proceeds w/ respect to a domestic assault charge? The position of the complainant ought to be given considerable weight in these circumstances:

A. Will encourage victims of domestic assault to come forwardB. Will lead to more directed/progressive rehabilitative and preventative

measuresC. Will lead to fewer false convictions

Necessary limits of complainant involvement

· It is still the primary duty of prosecutors to only pursue prosecutions that are in the public interest, despite the position of complainants (Crown represents the state)

Public Prosecution Service of Canada, Decision to Prosecute (1) Introduction

· Director of Public Prosecutions (DPP), under the DPP Act, initiates & conducts prosecutions on behalf of federal Crowno Delegates this power/function to federal prosecutors

· Crown counsel (CC) ensure that prosecutions based on sufficient evidence + which best serve public interest are brought before the courtso Part of their quasi-judicial role as "ministers of justice"

· CC must recognize :o indep. Functions of police/investigative agencies - decide what charges to

recommend in light of evidenceo Courts - determine admissibility & weight of evidence at trial

(2) Decision to Prosecute Test TEST (if answer to both questions is 'yes', test is met)

1. Is there a reasonable prospect of conviction based on evidence that is likely to be available at trial? If there is,

2. Would a prosecution best serve the public interest? (3) Application of the Test 3.1 Reasonable prospect of conviction

· Reasonable prospect requires more than evidence that is capable of making out each of the necessary elements of the alleged offence against an accused (more than a bare prima facie case)o DOESN'T REQUIRE probability of conviction

· "…the Crown prosecutor who harbours personal doubt about the guilt of the accused cannot substitute his/her own views for those of the judge/jury in making the threshold decision to go forward with a prosecution" (Miazga v Kvello Estate, SCC)

3.2 The public interest

· CC should only consider this when satisfied that the evidentiary foundation to support a charge has been met. What should be taken into account:

1. Nature of the alleged offence2. Nature of the harm caused by/consequences of the alleged offence3. Circumstances, consequences to and attitude of victims4. Level of culpability and circumstances of the accused5. Need to protect sources of information6. Confidence in the administration of justice

3.3 Irrelevant criteria

· Race, national/ethnic origin, colour/ religion etc. of the accused/any other person involved in the investigation

· CC's personal feelings about accused/victim· Possible political advantage/disadvantage to gov't/political group/party· Possible effect of decision on personal/professional circumstances of those

responsible for the prosecution decision 3.4 Consultation

· CC must ultimately decide independently of the police/investigative agency, but consultation may be appropriate in certain cases

3.5 Reasons for decision

· Police and victim should be appropriately informed when decision is made not to prosecute (and in some cases, the public)

3.6 Delegated matters

· Where a charge has been delegated from a provincial attorney general to the DPP for prosecution, Crown counsel makes the decision to prosecute in accordance with the applicable provincial decision to prosecute test.

Public Prosecution Service of Canada, Private Prosecutions Origin of Private Prosecutions

· Private citizen's right to initiate/conduct a private prosecution originates in early CML

o Early Middle Ages to 17th C: private prosecutions were main way to enforce crim law; private citizens responsible for preserving peace, maintaining the law

· As English CML developed, role of Crown law officers grew.· Still, private prosecutions were allowed - recognized in several English

statutes to this day Foundation for Private Prosecutions in Canadian Law

· No Criminal Code provision expressly authorizes private prosecutions (PPs)o However, several provisions implicitly recognize them

· 2002 amendments to Crim Code - limitations on right of private citizen to institute proceedings

Authority of the AG of Canada to intervene in PPs

· Several SCC decisions have made it clear that the authority of provincial AG to prosecute under federal statutes, including Crim Code, are given by the Code - their authority doesn't flow from any constitutional principle based on ss 92(14) à the provincial prosecutorial role is assigned through legislation by Parliament, not constitutionally entrenched

· Sec. 2, Criminal Code: if a private individual lays an information, the AG of Canada lacks authority to intervene - b/c proceedings not commenced by the Gov’t of Canadao Applies ONLY to prosecutions brought in a province (not the territories)o However, AG of Canada has authority to intervene in private prosecutions

of drug matters throughout the country· Sec. 579.1: gives AG of Canada authority to intervene in PPs commenced

under fed. Statutes other than the CCo 579.01: permits AG to intervene without staying them

Statement of Policy

· In the territories - lists what CC should consider when deciding to intervene in PPs

· In the provinces - AG has limited authority to intervene in PPs The Status and Role of Prosecutors,A United Nations Office on Drugs and Crime and International Association of Prosecutors Guide, 2014 (pages 7-53) Part I. Status of prosecutors Prosecutorial independence

· When prosecutorial discretion is permitted, it should be exercised independently and be free from political interference

· In States were the principle of legality applies, the prosecutor is in principle required to prosecute every case where there is sufficient evidence to sustain a prosecution

o Mostly CVL states· CML jurisdictions + some CVL jurisdictions (France, Netherlands) operate on the

basis of the opportunity principle – prosecutors may exercise discretion with respect to the institution of criminal proceedings

o When proceedings have commenced, they made decide whether to withdraw specific charges/the entire proceedings

o This discretion must be protected from interference (esp. political), and should also be governed by policy guidelines

· Prosecutorial independence refers to:o (1) individuals – an individual state of mind that enables an individual

prosecutor to make decisions rationally & impartiallyo (2) institutions – should underpin institutional and operational

arrangements Accountability

· To the executive & legislative branches of governmento A prosecution service may be required to report on its activities/on

specific issues to the exec. branch & Parliament· To courts

o Prosecutors’ actions are always under scrutiny by the courts; can be reviewed by the courts in some cases

· To the publico Prosecution services are accountable to the public they serve à should

be in a position to inform & explain actions they have takeno At the individual level: stating reasons for specific decisions enhances

transparency§ e.g. explaining to a victim why a prosecutor is seeking a specific

range of sentence Directions to prosecutors & management of the prosecutor’s office

· Hierarchical organizationso CVL: prosecutors may form part of the judiciary

§ may enjoy individual independence but also function as part of the judicial hierarchy with limitations on exercise of discretion

o CML: prosecution is part of the executive, may be integrated into the justice department

§ may enjoy high degree of independence and be guided by internal rules governing exercise of discretion

· Guidelines and policies

o a quick reference of legal, procedural and administrative guidelines service as useful & necessary tools for the smooth functioning of a prosecution service

· Protection against unlawful orders & arbitrary actiono Prosecutors should be protected against arbitrary action taken by their

superiors (i.e. reassignment of cases without explanation, reduction in seniority/pay scale without cause etc.)

· Specialization of prosecutorso prosecution services should consider creating specialized

units/sections that can concentrate on investigating and prosecuting various discrete types of offences

· Assignment of caseso the method for assigning cases is another importance element to

safeguard the independence & impartiality of prosecutors· Improvements in case management

o accountability, transparency and operational effectiveness – require a prosecution service to be able to track what’s being done on any file

· Importance of maintaining statisticso These can tell a director of public prosecutions about how staff should

be allocated, whether a sub-office is working efficiently, what actions should be taken, etc.

Qualification, recruitment selection, training and career management

· Selection – should be governed by fair & impartial procedures for recruitment, promotion, and transfer

· Training – should commence in the induction phase and continue throughout the career, enabling the prosecutor to take on more complex cases

· Career management – appointments & promotions must be based on objective factors General duties and rights

· Duties related to private lifeo prosecutorial independence places some limits on activities that may

compromise/give the appearance of compromising the independence of their office

o prosecutors shouldn’t allow their personal/financial interests or family/social/other relationships to improperly influence their conduct

· Duties related to professional lifeo a prosecutor should always take discretion from the law and resort to

the law when making decisions· Rights of prosecutors

o prosecutors must be able to perform their duties knowing that their own personal safety & that of their families is of utmost concern to their respective prosecution services

Liability and discipline

· guidelines should be put in place to clarify what may constitute behaviour worthy of sanction/protection Part II. Role of prosecutors in criminal proceedings Role in the investigation of crime

· in most CVL and some CML systems, prosecutor has control over the entirety of the investigation, directs the police in their investigation and what charges will be brought

· historically, in CML and some CVL systems, the police investigated crime and decided whether charges should be laid

o today, in some CML jurisdictions (i.e. UK) the decision to initiate proceedings in all but minor cases is left to the prosecutor

· there’s an increasing tendency for prosecutors to become involved at an earlier stage, particularly in cases such as fraud/corruption

· There are no hard and fast rules for prosecutorial involvement, even in jurisdictions sharing the same legal tradition. Dealing with evidence illegally/improperly obtained

· prosecutors must examine evidence to see if it has been unlawfully/improperly obtained; should consider refusing to use evidence reasonably believed to have been obtain through such methods Disclosure

· prosecutors should ensure that there is fair disclosure of material thato may be relevant to the innocence/guilt of the accusedo may assist the accused in timely preparation & presentation of the

defence caseo may assist the court to focus on the relevant issues in the trial

Plea & charge negotiation

· regardless of whether parties engage in charge/sentence bargaining, the process must be transparent

o defendant should be examined by a judge to ensure that he is pleading guilty b/c he is in fact admitting guilt, and understands the nature & consequences of his options

Prosecution test & the exercise of prosecutorial discretion

· the prosecutor should only institute criminal proceedings when a case is well-founded, upon evidence reasonably believed to be reliable & admissible

· prosecuting offenders when it doesn’t serve the public interest should be avoidedo generally, the more serious the alleged offence, the more likely it is

that the public interest will require that a prosecution be pursued Diversion from prosecution and alternatives

· prosecutors should ensure that the rights of the accused are safeguarded by affording the latter the right to be heard and to give his/her consent before the prosecution imposes a penalty (where prosecutors are vested with such powers)

· e.g. of alternatives to prosecution: drug/alcohol treatment, community service orders, victim compensation Role in sentencing, asset restraint and forfeiture

· Sentencing – prosecutor’s role requires the same scrupulous fairness adhered to during investigation and trying of the case

· Asset restraint & forfeiture – legal rationale for seeking this may have to be scrutinized by the prosecutor to ensure that there are compelling legal reasons to do so Role at the post-sentencing stage

· prosecutors have different roles at this stage depending on the jurisdiction – including:

o considering an appeal by the prosecution against sentenceo responding to an appeal by the defenceo responding to new evidence being presented

Victims & witnesses

· prosecutors should work closely with victim services/other support services to ensure victims & witnesses are made aware of the criminal process and their roles and those of others Vulnerable persons

· the creation of established protocols providing guidance to prosecutors when dealing personally with those who require special assistance can ensure that all those required to participate in the process are accommodated in a manner where they can participate fully Media and the public

· prosecution services must be able to satisfy the public’s right to know about aspects of a criminal proceedings while at the same time not jeopardizing the proceeding itself through the dissemination of information subject to a publication ban

International cooperation· it should be ensured that prosecutors have a basic knowledge of how int’l legal

assistance works and the skill to prepare a draft outgoing mutual legal assistance request QUESTIONS:

· In using its discretion to prosecute, what are the 2 things that the Crown could do wrong?

· As Prosecutor, you do not really believe that X is guilty but you figure that he may well be and that you stand a chance of proving that he is...

· How often is it in the public interest to launch prosecutions? What is in the public's interest in prosecutions?

· You are a Crown Prosecutor, considering whether to prosecute X who was found in possession of two marijuana joints.

******

DATE: January 25TH, 2017

TOPIC: Should Juries be “Representative” and How?

NOTES:

Jury selection: done by the lawyers in USA (enhances adversarial nature of proceedings, risk of representation issues), random selection in Canada.

The representativeness of the jury is a problem (often only made up of people with time on their hands, ex: retirees, unemployed) because:

Some communities are difficult to access (see Kokopenace case). Many people get out of jury duty because they don’t want to do it

(either too boring or they can’t afford to take time off - often no or very little compensation for jury duty), and there are many ways to be excused from jury duty in Canada (member of political office, students, lawyers, etc…)

Lack of representativeness only violates s 11 (right to be tried by a jury) when it is the fault of the state (must only make reasonable efforts to include all groups - the process must be equal, not the final outcome).

Juror bias: heavily protected against in American courts, but not in Canadian courts (presumption of juror impartiality because the consequence

of juror bias is a collapsed trial —> don’t go deep into private lives, judge bias based off yes/no questions and hope that any individual bias will be mediated by the group mentality)

Criminal Code s 638 (1)(b) - see R v Find: allows the prosecution or defence to challenge juror impartiality, in which case the claimant must rebut the presumption of impartiality by showing that the jury was incapable of overcoming systemic bias by asking the jurors “yes/no” questions only.

Canada has no written judgments to determine if a jury was biased. They do not explain their decisions. Perhaps problematic.

READINGS:

Marder, Nancy S: An Introduction to Comparative Jury Systems

Juries are important because they make the system more democratic. The jury selection process and the way juries are dealt with varies

depending on the State (there is no perfect jury system - Canada influenced by UK but has some unique practices).

Avoid docks because make the accused look bad in front of the jury. Juries should not necessarily have to give written explanations but their

decision should generally be reasonable/understandable.

R v. Find

Facts:F was charged with 21 counts of sexual offences involving complainants ranging for ages 6 to 12. He applied to challenge the selection of the potential jurors (under s 638 CC) arguing that the nature of his charges would possibly give rise to partiality against him.

Issue and holding:His request was denied.

Reasoning:To succeed in s 638 claims, one must prove that there is widespread bias on the matter that the jury could not overcome despite institutional safeguards (high threshold, was not met in this case).

R v. Kokopenace

Facts:K, an Aboriginal man, was charged with a second degree murder and convicted of manslaughter. An issue of poor representation among the jury (which was

selected using 2008 data and in which Indigenous people were extremely underrepresented) was raised at the Court of Appeal that no member of the Indigenous community was present.

Issue and holding:Does the lack of indigenous representation in K’s case violate his s 11 rights? No

Reasoning:S 11 is only violated when the process of jury selection is biased, not the outcome. Quality of state efforts were sufficient in this case.

Notes:Dissent argues that the fact that the jury roll used was one from 2008 (the case was in 2015) made the process flawed because a large amount of aboriginal people were not part of it.

Hasham, Alyshah. “Justice is blind when it comes to Canadian jury selection”

Canadian systems do not look too deep into jurors’ private lives unlike in the USA.

Screening is limited to obvious racial or cultural bias. People who have had negative interactions with the police are likely going to

be excluded from being on a jury. Difficult to find information on jury making decisions on the internet since

jurors must keep their deliberations secret

Hirsch, Afua. “Is the internet destroying juries?” Jury impartiality is threatened by Internet + social media (jurors can

research the case) Jurors are warned not to do this, but difficult to control. Tried getting

authorities to take info down from the Internet (in extreme cases). Problem is when there is evidence of such research being done, the accused

can be acquitted on grounds of impartial jury (happened in a rape case)

Shannon Heffernan, The Secret Power of Jury Nullification

Jury nullification: when a jury deliberately acquits someone who should be found guilty as a means of showing their disapproval with the system (ex: when wife doesn’t give her dying husband his medications and is acquitted for manslaughter charges by the jury)

More frequent today, especially with minor offenses (ex: drug charges), but still rare.

Expression of the democratic nature of juries System tries to mitigate JN by making them take an oath and giving

thorough instructions, but does not always work.

Ruparelia, Rakhi, “Who Are You Calling Racist? Challenging Jurors for Cause 20 Years after Parks

We live in a society where racial prejudice is so stigmatized that it is rarely expressed explicitly. Therefore, our questions used to determine juror bias are too direct and blunt to be useful, but our courts are reluctant to recognize this. However, a shift towards asking more indirect questions is crucial in a society where visible minorities are overrepresented in the CJS in order to help mitigate the system’s inherent racism.

NOTES FROM POWERPOINT QUESTIONS:

Juries are valuable because they democratize the CJS The odds that we will serve as jurors are slim to none: we are students (so

can be excused), and we will be lawyers (who are exempt in fear of overpowering the rest of the jury with our expertise)

Compensation for jurors depends on the province (QC has the best - 90$ a day + offers childcare; NS employers give paid leave)

Your right to a representative jury means the state must make reasonable efforts to ensure the fairness in the selection of the jury (process, not outcome) , which must be representative of your community (territory) regardless of your personal characteristics.

If the state makes reasonable efforts to include everyone in the jury and they refuse to by choice, you have no recourse.

Representativeness cannot be engineered because there are only 12 jurors - some groups, by default, will need to be excluded. Picking and choosing which ones make the cut is itself a repressive practice.

Examples of juror indifference : if they have researched the case prior, if they exhibit clear racial or cultural prejudice…

To challenge a juror (“challenge for cause”) must file a request to the Court under the criteria in s 638 (1) CC. To prove impartiality, must meet criteria in R v Find.

Threshold for a successful challenge for cause is extremely high - if a juror cringe at the word “thief,” and there is no other evidence which could point towards a particular prejudice against thieves, would likely not be enough. Everyone has some type of prejudice.

Ex of widespread bias in Canada = against aboriginal people. “Cleansing effect” mentioned in R v Find refers to institutional safeguards

against impartiality (judge’s instructions to the jury + the trial process itself) which become relevant only in the second step of the Find test.

If you are against the law and you are a juror, you are instructed to respect it, but if the rest of the jury agrees with your opinion, you can engage in jury nullification.

Whether or not juries should give explanations for their verdicts is contentious. Some argue that yes, because it would reveal any bias in decision making for guilty verdicts, but others argue that in cases of acquittal, this would make less sense (presumption of innocence - there shouldn’t be a reason they were found innocent other than there was no reasonable doubt of guilt).

**************************************************

DATE: January 27TH, 2017 TOPIC: Defence Lawyers: The Ethics of Defending NOTES:

Defending involves a mix of ethics and legal obligations and there is a tension between:

Role within the adversarial system: winning at any cost, duty to client, 90%

Officer of the court: working for the system, mandate not to violate the law, basic courtesy in dealings, 10%

Often to do the ethical thing may involve walking away from a lucrative contract or advising your client to report to the police

See Q&A below for the rest of class (they’re all answered in the reading summaries)

READINGS: Stribopoulos, Skurka & Leiper. “ Professional Responsibility in Criminal Practice ”, LSUC (1994)

Defense lawyer has duty to his client, that is tempered by his duty to the court, the society, to colleagues and to himself.

Criminal defense lawyers have greatest ethical dilemmas of any type of advocacy because so much is at stake and it’s a question of balancing the conflicts.

Duty to Client Duty to take on case

Insufficient reasons to refuse: prospective client is unpopular, the case is notorious, serious allegations of misconduct or malfeasance are involved, or personal opinion on guilt.

Sufficient reasons to refuse: inability given limited experience or serious nature of the case, a conflict of interest.

If you refuse: obligation to assist accused to obtain services of another lawyer who is qualified and able to act.

General obligation owed

The lawyer has to be well prepared and explain the nature of the proceedings at all stages

Must act honestly and candidly when providing counsel, no bold assurance to the client

Duty of confidentiality Lawyer is duty bound to keep all conversation with client confidential (ethical duty to all clients). This goes beyond the principle of solicitor-client confidentiality (rule of evidence and turning over communications). Duty not to act in face of conflict of interest

“A conflict of interest is a circumstance that would likely have an adverse effect upon the lawyer’s judgment on behalf of the client”

Lawyer cannot act in a matter where there is one, and most originate from the obligation of confidentiality

3 categories of conflicts of interest: Conflicts arising from a former professional relationship between

defense counsel and a proposed witness for the Crown; (ex: the witness is a former client)

Conflicts arising from the joint representation by defense counsel of one or more co- accused

Actual conflicts between the personal interests of defense counsel and the interests of an accused person, or between counsel functioning as an advocate and as a witness.

Counsel’s penal or pecuniary interest in the proceedings Counsel is required to give evidence: when this happens, the

counsel has to withdraw from the trial, and give the material evidence

Duty with respect to withdrawal of services

The defense lawyer has a limited right to withdraw from a case (needs good reasons), but the client always has the right to discharge of their lawyer.

Counsel shouldn’t use the threat of withdrawal to force a hasty decision by the client.

Canadian courts don’t agree if lawyer has right to withdraw when client doesn’t pay fees.

Alberta says No, Ontario says Yes if it doesn’t seriously prejudice the client's case

When you withdraw, you don't have to give the reason to the court since this would violate client's confidentiality. The Court trust that you withdrew for good reasons. If they have a doubt, they may ask for a disciplinary review by the Bar.

Duty as an advocate

Defense counsel's function is quite distinct from that of the Crown. The Crown's priority is to assist in the administration of justice, rather than

acting as an advocate pressing for a conviction. The Crown has an obligation to bring forward evidence of every material fact known to the prosecution, whether favorable to the accused or not.

Crown must disclose all material it has to defense and always be accurate, fair and dispassionate in conducting the prosecution and addressing the jury.

In contrast, the defense lawyer's function is wholly partisan: has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavor to obtain for the client the benefit of every remedy and defense authorized by law.

Counsel should never enter in a plea bargain if the client denies committing the crime. His duty is to save the innocent from imprisonment, so accepting a plea goes against this duty.

Duty to Court Duty generally

Defense counsel is an officer of the court and have a positive duty to never mislead the court. This creates obvious ethical tension with its partisan duty toward its client.

Duty not to knowingly mislead the court Counsel should never knowingly refrain from informing the court of a

pertinent and binding legal authority, even if not mentioned by the Crown. Counsel must make reasonable efforts to ensure the reliability of info

supplied to the court. Counsel can only persuade by the mean of advocacy. It should not meet with

any members of the jury, or instruct anyone to communicate with them. If client pressures counsel to behave in misleading manner, counsel has

good reason to withdraw.

If the counsel discovers his client is guilty, he cannot suggest alibis, or point to false evidence. However, he may object to the sufficiency of the evidence brought by the Crown.

Other problem: cannot call a witness if you know that the evidence he will provide is false. Defence counsel has the sole discretion in deciding which witness to call. On the other hand, the client may choose to testify. The counsel must vigorously attempt to prevent him from doing that. You may say that client have a statement to make, and then not use or question him on the false evidence he brought.

Duty with respect to witnesses

Counsel can prepare its witnesses to testify in court (provide which type of statement to use), but should not influence the witness in trying to answer untruthfully, or in an evasive way.

Counsel is obliged to avoid any course of action that might needlessly inconvenience a witness.

There are no ethical restrictions on discussions with respect to adverse witnesses, either during their direct examination by opposing counsel or in the course of cross-examination.

Duty of courtesy and civility “tactics that are offensive to the judge are not likely to aid in persuasion” Duty to Society Advice regarding future criminal activity

Defence counsel must never instruct a client on how to violate a law and avoid punishment.

All persons who advise a crime are guilty of the crime committed by compliance.

Solicitor and client privilege (that is before being formally accused) does not protect communications made for the purpose of seeking guidance in the commission of a crime or a fraud. Disclose this to clients seeking guidance on that matter.

Exception: Providing advice to a client for a test case where client wishes to challenge in good faith is not inappropriate.

Knowledge of future criminal activity

Counsel may breach confidentiality if she/he has reasonable grounds to believe that there is an imminent risk to an identifiable person or group of persons of death or serious bodily harm (which includes serious psychological harm)

They should seek prior judicial approval and should not do if it's a non-violent crime.

Duty with respect to security of court facilitiesCounsel have a duty to inform police and court if a dangerous situation will develop at court Duty with respect to physical evidences

If client arrives with the murder weapon, or the stolen assets, should refuse to accept and should not advise the client to conceal or destroy the evidence.

If no choice (ex: the guy put his knife on your desk with blood on it), then counsel has an obligation to disclose the existence of the evidence ASAP, any delay could be obstruction of justice. 3 options:

immediately turn over the item to the prosecution, directly or anonymously

deposit the item with the court or the trial judge or disclose the existence of the item to the prosecution and battle to

retain it Duty to Colleagues Duty of courtesy and good faith

Like all lawyers, criminal defence counsel has an obligation to be courteous, civil, and act in good faith when dealing with others, including opposing counsel.

Counsel has a duty to avoid ill- considered or uninformed criticism of the competence, conduct or advice of their colleagues.

Duty with respect to undertakings Lawyers should not give undertakings that they will be unable to fulfill. Duty to Self

Counsel should retain control and not be mouthpiece for client, carrying out their biddings

There are 2 things that the accused retain the ultimate authority on: Whether to plead guilty or non-guilty (and accept or reject a plea

bargain) Whether to testify as a witness or not.

Defense counsel has to advise on both. Once an accused decides to plead not guilty, however, defence counsel should assume complete control and responsibility over the manner in which the defence will be conducted.

Conclusion

Duty to client is great, but has limits. Counsel should evaluate problems in light of these competing obligations.

Steps: Is there a duty owed?

To whom or to what? Is there a conflict between duties? Which duty must give way to the other? If this doesn’t help, ask for advice from colleagues or the bar.

Viney, “ How can you defend someone you know is guilty? ”, The Guardian (2006)

There is a huge difference between knowing someone is guilty and suspecting they are

If a client says they’re innocent, you have to act for them, you need to keep an open mind

However, it’s unethical and illegal to knowingly deceive a court "If my client tells me he's guilty, I can't say he's innocent in court. I cannot

call him to give evidence that I know is false or I would be a party to his perjury."

Also, you cannot refuse to represent someone you do not like "The real thing is: can the prosecution prove it so a jury is sure they

committed the crime? That's a completely different thing. That's what a criminal trial is really about."

Asimow, When the Lawyer Knows the Client is Guilty: Legal Ethics, and Popular Cultur e, (2006) Two examples of strong adversarialism:

In England, 1840. A butler, Courvoisier, is accused of murdering his employer. His lawyer defended him with passion. The butler told him from the start that he wasn't guilty. During trial Courvoisier confessed his guilt to his lawyer and the lawyer still defended him passionately, trying to point at other servants. Courvoisier was found guilty and hung. Later, the public learned that the lawyer knew that his client was guilty. Many people including lawyers condemned him for his aggressive defense and his reputation never recovered.

More recently, Bill O'Reilly, a CA lawyer defended a guy accused of abducting and killing a young girl. The body was not found. During plea bargaining, the prosecutor offered not to seek the death penalty if the lawyer disclosed the location of the body. Since lawyer had that information, he knew beyond any doubt that his client was guilty. Before the deal was struck, the police found the body so it went to trial. O'Reilly was extremely aggressive in defense and interrogation of the parent knowing that inference he was seeking to raise was false. Client was found guilty and is now on death row. Huge public outcry again and they demanded his disbarment.

Two options to deal with knowing with certainty your client is guilty:

Weak adversarialism: allows the lawyer to conduct defense focusing on grounds for reasonable doubt, while doing less than his/her best. Promotes the truth-discovery function of criminal justice without severely undermining the adversarial system and it diminishes the moral difficulties of criminal defense lawyers.

Strong adversarialism: prefers the objective of zealous representation and protection of client confidences above other values.

Perjury: When client lies to the court and the lawyer knows it. This does not

happen too often since defence counsel avoid getting confessions from their clients, so they don't know if their client is lying. If perjury has already been committed, the lawyer should disclose to the court, EVEN IF UNDER CONFIDENTIAL DUTY.

If client insists on committing perjury, there are 3 responses: Weak adversarial: The Canadian Code of Professional Conduct says to take

this approach. Strong adversarial : talk your client out of testifying, but if he insists, ask him

to tell you EVERYTHING, and design an interview (testimony) which avoids asking the incriminating questions. This goes against all codes of ethics and is BAD.

Compromise: let the client do his own testimony, with no questions from the lawyer, and make no reference to it in the defence lawyer's closing statement. This will tip off the judge and prosecutor to what is going on, but it is unclear what the jury will make of it.

In popular culture: The lawyer's job is to convict the guilty person. If he actually is acquitted, the lawyer should find a way to punish him outside of court. "We might say that the guilty-client films suggest that people believe that a good lawyer looks out for the public interest by making sure that guilty people don’t get acquitted."

R. v. Li, 1993, BC CA

R v Li

Facts: Thief robs a jewel store in Burnaby. Witnesses are the 2 cashiers of the store, but robber tells cashiers to

disable security cameras, so there is no evidence. Police identify, arrest and charge a suspect when they find stolen jewelry

in his room. Cashiers identify him, even among several pictures of similar looking men. Robber appeals conviction for the theft.

Issue and holding: Appeal dismissed.1) Was the cashiers able to identify the theft beyond a reasonable doubt? Dismissed2) Is the "Doctrine" of recent Possession ok? Dismissed3) Did defense counsel in the first trial have a conflict of interest? “the accused has not shown that the there was a realistic possibility of a miscarriage of justice”

Reasoning:1) Self-explanatory, they were able to easily identify him.2) It is established in Canadian law that the unexplained recent possession of stolen goods, standing alone will permit the inference that the possessor stole the goods.3) The accused was living with the Cheungs, a couple at the head of a Vancouver gang involved in several robberies. The lawyer of the accused was also the lawyer of Cheungs. This creates a conflict of interest because if the prosecution wanted to bargain a lower sentence in exchange for incriminating evidences about the Cheung, the lawyer would not be able to advise his client and in this case advised him not to talk against the Cheungs.“that Mr. Brooks was not required to withdraw from the defence if the accused wished him to continue. When there is time, as in this case, counsel in such circumstances must instruct the client that such admission may compromise the defence and seek instructions whether the client wishes him or her to continue with the defence.”“I cannot leave this case without mentioning the obvious. Counsel risk allegations of conflict whenever they represent more than one accused in related criminal cases. In this case, the potential risk was great because, after September 12, 1991, Mr. Brooks was acting for the accused who was charged alone on an Information relating to the Burnaby robbery, and for the accused and one of the Cheungs on another Information charging them on different counts of possession relating to the Vancouver robbery, and he knew that the police wished to discuss these matters with the accused.”“This is not to say that counsel can never represent more than one accused at trial. There are many circumstances where it is not just permissible, but actually beneficial, for several accused to have just one counsel although this is subject to what I have already said about the consequences of plea bargaining. Also, financial circumstances often make it necessary for only one counsel to be retained. Counsel, of course, must always be careful to ensure that their clients know and understand the risks and consequences of sharing their lawyer with other persons.”

Gallant, “ Guilty plea judged to be a ‘fraud on the court ’”, Toronto Star (25 April 2014)

Lawyer Christie helped his client Johnson commit "fraud on the court" by

instructing him to lie and plead guilty to drug and assault charges he did not admit to committing because it would be hard to prove and they negotiated a good plea bargain (lower charges, house arrest, and jail time on weekends).

The client hired a new lawyer who informed the Court. The judge ordered a new trial for the more severe offenses he was initially accused of.

McMahon J. had harsh words for the first lawyer: the lawyer failed to meet professional and ethical obligations and breached his duty to his client and to the court.

Misrepresentations can lead to disciplinary proceedings at the law society, but no word on this case.

Roach, a law prof at UofT, said this case represents a “common dilemma” in the criminal justice system: Some innocent people will plead guilty in the hopes of getting a more lenient sentence, rather than take their chances at trial.

Cooper, “ The Ken Murray Case: Defence Counsel’s Dilemma ” (2009) - Journal

This article covers a dilemma for defense counsel of what to do with the smoking gun?

About 50 years ago a man arrived at his lawyer’s office, retained him, told him he had just murdered someone. The lawyer advised him to take off his bloody shirt and turn himself in. What should the lawyer do with the shirt?

At the time, there was no jurisprudence in Canada providing direction, so he called a number of prominent criminal lawyers who together advised him to put the shirt in an envelope on the Senior Crown's Attorney desk anonymously, and inform his client of this, then withdraw from the case as he might be called as a witness. This is what he did.

Murray case was supposed to help defence lawyers know what to do with evidence in their possession that incriminates their clients. Ken Murray was the lawyer for Paul Bernando (Karla Homolka's ex-husband) in 1993

Facts: Bernando notices his lawyer to get 6 videotapes hidden in the ceiling of his

house. The lawyer watches the tapes on Bernardo's instructions, and keeps the tape

hidden in his office for 17 months until Bernando's trial. The three crucial videos show Bernardo and Homolka performing rape on

the 3 girls, both of them participating equally in the murder, and performing other obscene acts.

Homolka was clearly not forced into the acts & Bernardo wanted to use these videos to put the blame on her.

Bernardo changes his mind in Aug 1994 and asks Murray to destroy the tapes.

Murray withdraws himself from defence and is advised by the law society to turn the videos into the judge, but when he tries to they are given to the new attorney who turns them into the police 12 days after viewing them.

The prosecution sues Murray for withholding evidence.Issue: What should the lawyer (Ken Murray) have done with the tapes?Reasoning:

Gravely J says that he had 3 options with the tapes since they were hard evidence and could not be concealed until trial and he could not return them to where he obtained them: turn them over to the authorities, turn them over to the court , or notify the authorities of their existence, and then litigate the issue of whether he could retain them in the face of a search warrant.

He was found not guilty because he genuinely wanted to use the tapes in defense of Bernardo and did not willfully intend to obstruct justice

What if you are defending a client on tax evasion, that he gives you a box with all his documents (accounts, tax files...) for your review and that you found an incriminating document. Do you have to hand it in to the authorities and automatically incriminate your client? Is there a difference between guns, knives and other hard evidence and documents?

In the US for physical incriminating evidence (gun, knife, blood stained shirt), the guideline is: the lawyer deposit it anonymously to the prosecution and then withdraw from defense. The jury should never learn where the evidence comes from, so that client's confidentiality principle be respected, but has access to the evidence, so the lawyer's duty to the court is fulfilled.

Author suggests perhaps advising clients: ““It is evidence that might convict you; if you give it to me, I may have to turn it over to the prosecution. Take it away and keep it in your residence; if you destroy it, you may be guilty of a crime.”

But this can create problems of being accused of counseling the destruction of the item despite protestations.

Berry, “ Bad Lawyering-How Defense Attorneys Help Convict the Innocent ” (2003) - Journal

Roughly 1 in 4 US convicts are the victim of “bad lawyering” - including those on death row.

The right to counsel has to include the right to effective counsel, or it is meaningless.

In theory, the accused need offer no defense beyond the presumption of innocence; in practice, just being charged places a burden of “they must have done something” that they have to clear.

“Reasonable doubt is the most demanding standard, and the least understood.” Jurors are told what it means, but may misunderstand, or have their own ideas.

The defendant who does nothing does time. In 23 of the first 70 DNA exonerations, “bad lawyering” contributed directly

to conviction. Bad lawyering includes failure to communicate with client, little or no discovery, little or no investigation, failure to consult/retain experts, minimal preparation, and many other failures.

Too often, the push is just to accept pleas - in 90-99% of the time, the defendant is guilty, and this makes sense. But that means 1-10% are getting bad representation.

As a result, 90%+ of those eventually exonerated by other evidence plead guilty.

Nor do appeals courts tend to give claims of weak counsel much attention - they primarily exist to catch/prevent major procedural errors by judges, not to review trial evidence.

Even in instances of gross malfeasance, denial of effective counsel is almost impossible to prove - in one Texas case, the defendant's attorney fell asleep multiple times during his capital murder trial, including questioning of witnesses. 15 years later, he finally got an appeals court to agree a sleeping lawyer was tantamount to no lawyer, but the 5th circuit court reversed that - and even then he wouldn’t have gotten as far as he did if his lawyer had still been alive to contest it.

Many other examples of bad lawyering, including corruption and incompetence.

The evidence for this article focuses on death row reviews, but there’s no reason to think bad lawyering doesn’t affect other levels of defense equally.

Problem is equally bad outside of the public defender's office. Most people don't know how to find attorneys, and never think about it until charged, at which point they’re at a structural disadvantage. They often pick blindly from the yellow pages, which is no guarantee of competency.

Leniency deals are particularly insidious, because they happen off record, and have no oversight, and pit a snitch trying to save themselves against a person who still has a presumption of innocence.

Laufenberg, “ Representing Repugnant Clients Every Lawyer’s Choice? ”, GPSolo Magazine (2005)

Laufenberg argues attorneys should be free to decide whether to represent a client or cause as mandatory representation can impact existing clients, potential political aspirations, can hurt the client, and can lead to a malpractice suit for the attorney.

In practice, a lawyer’s association with an unpopular client or a scandalous issue has a negative impact on their existing clients as even the most

sophisticated client may have difficulty accepting your representation of a known pedophile or racist hate group.

It also can have an impact on an attorney’s political aspirations, there are examples of political campaigns where an attorney was characterized as implicitly unfit to hold public office for having represented criminal defendants.

If a lawyer is repulsed by a client, it can be a disservice to the client to accept the case. For example, attorneys who are personally repulsed by the beliefs and actions of white supremacists should not be forced to represent them.

This can also lead to a malpractice claim if attorney isn’t zealous in their representation. He uses the analogy of dog cases where you bump certain cases to the end of your to do list every time and this can lead to malpractice.

Attorneys should address unacceptable clients non-confrontationally and you can sugarcoat it using the lines: “I have a conflict and cannot represent you” or “I am simply too busy to take your case right now.”

QUESTIONS:

1. You have a certain repulsion vis-à-vis an individual who asks you to represent him. Do you refuse to represent him?

A: You can explain why you are repulsed and it won’t be a good relationship, you could say you are too busy, you can’t be very choosy, if you don’t take it you have to refer to someone else who may be competent.

2. What are your duties as defense counsel?A: inform your client, ensure your clients rights are protected, advise them on implications of any decisions they make. In addition, duties to court, society, and witnesses to be honest and respectful.

3. Why might it be a problem that a witness is a former client of yours in a criminal trial?

A: conflict of interest might not appear immediately, but you might need to call a client who is a former interest of yours, and there are things you know that you can’t reveal. It is hard to compartmentalize your brain, and any appearance of conflict of interest is an issue. You might either breach confidentiality to old client, or not try to win for new client and not have such a vigorous defense of your current client. The most common are financial conflict of interest.

4. Why is it most likely that representing two clients in the same case will lead to a conflict of interest?

A: You might have evidence that suggests one was not to blame, but indirectly exculpates the other.

5. Why might you want to be co-represented?A: To present a united front.

6. If your client nonetheless asks you to co-represent him, what should you tell him?

A: Record that everyone at every stage was informed, recommend different counsel but coordination between the two as much as possible

7. Your taxi driver is chatting with you when he suddenly burns a red light and crashes into a vehicle, killing the other driver. Soon to be tried for manslaughter, he seeks to retain your services. What do you do?

A: You are a witness, bad idea.8. What are the main differences between Crown and defense counsel?

A: Crown have to give you all of their information, but defense don’t have to give theirs.

9. Why is it a bad idea as defense counsel to simply do nothing and rely on the presumption of innocence?

A: The accused might ask for a mistral if you do not have a good strategy. It is important to make every point and argument that you can.

10.Give examples of defense counsel behaviour during trial that would allow a subsequently convicted person to claim a mistrial…

A: Sleeping in court11.Does the defense have duties to the victim? If not, to whom?12.You suspect that your client committed the crime he is accused of and is

therefore lying to you about being innocent. Do you nonetheless continue to defend him as innocent in court?

13.Your client confesses to you that he did commit the crime. Can you nonetheless defend him as innocent?

14.Your client tells you he is innocent of what he is accused but that once he leaves your office he is going to go murder someone. Do you denounce him?

15.Your client tells you he is innocent. Your feeling is he probably is but at any rate you think that he has little chance of proving in court that he is innocent and advise him to plead guilty. You carefully review the allegations with him and the attendant sentencing risks if he is found guilty. Is that ok?

16.Your client has decided to take the stand. He has confessed to you that he committed part of the crimes he is accused of, and that he will be truthful. During his examination by the Crown you realize he is lying. What do you do?

17.Why is client-attorney privilege so important?18.Your client gives you 70 boxes of documents to fight accusations of financial

fraud against him. Amidst the boxes, you encounter some incriminating evidence. What do you do?

19.Why was the conflict of interest in R v. Li not sufficient to obtain a mistrial?

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DATE: February 1st, 2017 TOPIC: Victims NOTES:Karmen, Andrew J. “Who’s against Victims’ Rights-The Nature of the Opposition to Pro-victim Initiatives in Criminal Justice” (1992) 8 John’s J Legal Comment 157.

The victims rights movement which emerged in the mid 70s was ideologically diverse/incoherent. If they had unifying concerns they were: 1) Justice officials overlooking victims 2) victim-blaming 3) A lack of systemic protection for victims 4) the need for victim compensation 5) the view that victims needed formal rights within the justice system (echoing past civil rights movements).-Union of feminist, anti-racist, and conservative-law-and-orer movements.-Victims may want a more penal or more rehabilitative approach (or agree with the approach of) than the prosecutor. Regardless, progress reports on the case are generally desired.-Victims tend to want a role in the plea bargaining process.-Parents of missing children are often concerned about the timing/decision to investigate their cases.-Domestic violence advocates have called for more immediate arrests. Sexual violence and bigotry victims have called for the development of specialized investigation units.-Supreme Court (US): Its constitutional to have laws that protect child sexual assault victims from testifying. – Laws that prevents convicts from profiting from written accounts of their crimes are unconstitutional.-“ Resistance from the victims' ostensible allies within the criminal justice system tends to be low profile, and takes the form of foot-dragging, cooptation, and objections on pragmatic grounds. The opposition from those concerned about civil liberties is indirect, since the real concern is not that victims will be empowered but that the government will grow more powerful.”

Kelly, Deborah P. “Victims’ Perceptions of Criminal Justice Symposium: Victims’ Rights” (1983) 11 Pepp L Rev 15.

-“ Services may be provided which are relatively unimportant to victims, while other more important needs are overlooked. For example, although many victims experience problems with transportation, babysitting, and parking, most do not judge these problems as serious.8 Their wishes for greater participation are rarely addressed in these programs.”-“ Victims' comments clearly indicate that they deeply resent being excluded from deliberations. To illustrate, when 100 rape victims were asked how they would improve police and court procedures, most wanted increased participation and status in the judicial system. Though victims are legally irrelevant to the state, their proposals reflect that the case is extremely relevant to them.”-“ Victims want the police to provide information on the status of their assailant. They want to be called when the defendant is arrested and told whether he is in jail, released on bail, or roaming the neighborhood. Victims want this information-regardless of their utility to the case. Additionally, they want police officers to support, not second-guess, their behavior. Victims objected when, for example, police commented, "That's what you get for living in the city" or "You should have known better than to go out alone."-“ Postponements were particularly difficult to tolerate. Studiesshow that witnesses' opinions of the court deteriorate as thenumber of postponements increases. 10 Sixty percent of the victimsinterviewed had their court date postponed at least once.Delay in court hinders the victim's recovery. As one womanstated: "Your life is on hold until it's over."-In practice, victim participation has not been found to lead to harsher sentencing.

Department of Justice Canada, Victims Rights: Enhancing Criminal Law Responses to Better Meet the Needs of Victims of Crime in Canada

As of 2013 Canada is working on a victims rights bill. In 1988 federal and provincial governments agreed on a Statement of

Basic Principles for Justice for Victims of Crime. (it discuses victim’s

“

need for courtesy, privacy, information, etc). Current criminal code protections for victims: the presentation of

victim impact statements; consideration of victim safety at bail hearings; federal victim surcharge; publication bans; testimonial aids; and restitution orders.

(all these rights are defined at the bottom of the document) Correctional services does not automatically inform victims. Victims

can request the following information: “the offence the offender was convicted of and the court that convicted the offender;

when the sentence began and the length of the sentence; and the eligibility and review dates of the offender for unescorted

temporary absences, day parole and full parole.” Other information may be given out if the Canadian parole board chair determines the need for that information outweighs the offender’s right to privacy.

Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2)-Covers spouse/depends/relatives, cohabitors and caregivers (of the victim or their dependant, in law or fact) if the victim is dead. This does not apply if the relation is themselves culpable.-Rights to information about the system, the proceeding, the offender (includes their potential release, and proceedings that lead them to be found not criminally responsible/unable to stand trial).-Rights to security/protection from retaliation, privacy (can request identity protection), testimonial aid-Right to ask the court to make a restitution order.

- “Complaints mechanism

(3) Every federal department, agency or body that is involved in the criminal justice system must have a complaints mechanism that provides for

· (a) a review of complaints involving alleged infringements or denials of rights under this Act;

· (b) the power to make recommendations to remedy such infringements and denials; and

· (c) the obligation to notify victims of the result of those reviews and of the recommendations, if any were made.”

Department of Justice Canada, Victim Participation in the Plea Negotiation Process in canada

-Plea negotiation is not a formally recognized process in Canada, thus the victim has no official role.-in 1985 the UN passed a declaration on victim’s rights that ensures prosecutors provide info on the trial process, including plea bargains.-A study in the uS found that no matter the rights regime in place, victim satisfaction with the justice system aligns with how well they are notified about processes.-While most provinces have rights bills, only Ontario and Manitoba protect the right to be notified about plea processes.-Federal rule of 11: Judge asks accused if they understand and truly consent to their plea bargain.-The court system does not view victim impact statements as a vehicle for revenge, but that’s largely because they view revenge and retribution as different things.(ends with 4 detailed models for victims rights)“The Role of the Victim in the Criminal Justice System -- Circle Sentencing in Inuit Communities | CASAC”.-Sentencing circles have become increasingly prominent in indigenous communities in Canada since a 1991 judgement by Yukon judge Barry Stuart.-Sentencing circles don’t have clear basis in inuit tradition. “Community based” approaches aren’t necessarily “traditional.”-Inuit do have values of non-interference in individual’s lives, and not having punishment cause more harm than the offence. Thus the identity of the offender matters.-“ osing a good hunter would be a grave penalty and ultimately a much greater problem and danger to the survival of the camp. Yet if the person creating the problems was not a good hunter, and the problems were of a nature that presented a danger to the well-being of the camp, banishment or even death (where perhaps the person had killed someone in the camp or had gone insane) would be considered acceptable responses”.-Sentencing circles violate privacy, thus arguably undermining the principle of non-interference.-Many inuit are removed from traditional communal living. Thus traditional justice principles (Eg about hunters) may not make sense to them.-Community=/= the victim. Community’s may be unwilling/uneducated for dealing with victim needs, and victims may not want to participate. Furthermore, the victim and offender may have conflicting aims, and Canadian law privileges the offender (ie they may chose a jury trial rather than a sentencing circle, preferring anonymity and a lenient jury).

“Read the victim impact statement from Jun Lin’s family”, online: CBC News.

-Emphasizes inability to remember Jun Lin without sadness, loss of comfort in old age, greatfullness of the system’s procedure, inability to live normally. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34 29 November 1985 96th plenary meeting“4. Calls upon Member States to take the necessary steps to give effect to the provisions contained in the Declaration and, in order to curtail victimization as referred to hereinafter, endeavour: (a) To implement social, health, including mental health, educational, economic and specific crime prevention policies to reduce victimization and encourage assistance to victims in distress; (b) To promote community efforts and public participation in crime prevention;” “ (c) To render direct aid to requesting Governments designed to help them curtail victimization and alleviate the plight of victims;” “Restitution 8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.”

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DATE: February 3rd, 2017TOPIC: The Principle of Legality

Mégret’s introductionGeneral principles of the criminal law occupy a very special place within the edifice of criminal justice, supposedly providing coherence to what is sometimes the haphazard development of the criminal law. Such principles are often thought to be inherent to criminal justice, and are sometimes described as "fundamental." Their connection to human rights and civil liberties is strong. Most of the general principles studied here will be substantive criminal law principles but the right to a fair trial as a procedural right could also be considered a general principle. General principles are rarely codified, rather they have emerged over time through the case law and the doctrinal writings of scholars, occasionally

even receiving constitutional sanction. The globalization of criminal justice has precipitated a move to compare and codify these principles and promote them internationally, if only for the purposes of international criminal justice.General principles of the criminal law constitute the very backbone of liberal criminal law. They are strongly associated with notions such as the rule of law and the protection of human rights. Although the interpretation of such principles may vary from one jurisdiction and tradition to another, there is a solid common basis for their existence, as evidenced in their recognition in diverse international instruments. However, the strict application of the legality principle has at times been contested and it tends to mean slightly different things in case or statute law based jurisdictions.

The principle of legalityExcerpts from “A. Cassese, International Criminal Law, 3rd edition

1.1 The principle of legality in domestic legal systems:National legal systems tend to embrace either (1) substantive justice, or (2) strict legality. Substantive justice aims at prohibiting and punishing conducts that are harmful to society, whether it was legally criminalized at the moment of offence or not. Hence, this doctrine favours society over the individual (ex. Radbruch’s formula in terms of inconsistencies between statutory law and justice). On the other hand, strict legality postulates that a person can only be held liable if during its performance, the act was regarded as a criminal offence (ex. Nullum crimen sin lege/nulla poena sin lege, and Montesquieu’s proclamation).

Nowadays, most CVL countries hold the doctrine of strict legality as an overarching principle, encompassing four notions: (i) criminal offences are only provided in written law (as opposed to customary law) which is affirmed by the nulla crimen sine lege scripta principle, (ii) criminal rules may not be retroactive, (iii) criminal legislation must apply the principle of specificity, as to guide the behaviour of citizens, (iv) resort to analogy in applying criminal rules is prohibited (would allow approximation). The purpose of these principles is to protect the citizens against arbitrary power, and is thus in favour of the accused (favor rei) as opposed to in favour of the society. CML countries tend to adopt a qualified approach to these principles (judge-made law allows for more interpretation, and non-retroactivity has been questioned by jurisprudence).

1.2 The principle of legality in International Criminal Law

International criminal law (ICL) is based on customary processes, and has followed substantive justice for years, but has just reverted to the doctrine of strict legality. For years, this substantive justice standard was motivated by the need for flexibility when the international community was confronted with new and extremely serious forms of criminality (ex. Crimes against humanity, against peace). In doing so, ICL ensured that substantive justice was its tool to punish “acts that harm society deeply and are regarded as abhorrent by all members of society, even if these acts were not prohibited as criminal when they were performed.” After WWII, strict liability replaced the previous doctrine, mainly because of two factors: (1) States agreed upon and ratified important human rights treaties which laid down the nullum crimen (criminal offences must be provided for in a prior law) principle as a legal standard for national courts.

This principle is also in accordance with basic human rights of the accused. (2) Expansion of the ICL network meant more international treaties as a basis for prosecution, and ad hoc tribunals (notably Yugoslavia and Rwanda) laid down the principle of strict liability.

2. Articulations of the principle of legality:

A. The principle of specificity : the criminal rules must be as detailed as possible, including both objective elements of the crime and the requisite mens rea. Thus, those falling under these criminal laws can foresee the consequences of their actions, and freely chose to comply or breach the laws. It is also a safeguard against arbitrary judicial action. It is still far from being applied in ICL, and both national and international courts play of role of clarification of the international statutes’ terminology (which often lack clear mention of the crime’s subjective element). This problem is further amplified by the absence of a central criminal authority to clarify such unclear criminal rules for the whole international community.

B. The principle of non-retroactivity : Strict legality basic principle states that criminal rules may not cover acts performed prior to their enactment, unless such rules are more favorable to the accused. Otherwise, this would open the door to arbitrary punishment and prosecutions by the judiciary/executive. Nevertheless, ICL, in 1945, created two new crimes (crimes against humanity and crimes against peace) and applied them retroactively in Nuremberg. However, the principle of non-retroactivity seems strongly embedded in ICL nowadays, notably by its adoption of the nulle crimen sine lege principle.

ICL jurisprudence seems to establish two points. First, interpretation and clarification of existing rules must not be confounded with adaption, which is “only compatible with legal principles subject to stringent requirements”. Secondly, evolutive adaptation must (i) be in keeping with the criminal rules relating to the subject matter of the offence; (ii) be conform with ICL principles or general principles of law, and (iii) be reasonably foreseeable/anticipable by the (potential) accused. Hence, court cannot adapt a criminal offence through essential changes (actus reus, mens rea), but they can adapt provisions (ex. Broadening actus reus, lowering subjective element threshold, etc.). All such adaptations must be consistent with general principles of law in order not to be detrimental to the accused.

Canada’s zombie laws finally bitePeter Stankoff, National Post, September 16th 2016Addresses the presence in the Canadian Criminal Code of “zombie provisions”, i.e. provisions which are no longer law of the land because they have been declared unconstitutional by the judiciary, but are still included in the actual version of the Code. In the present case, the contentious is around s.230 of the Code which provides that a person committing a killing during the course of another crime (ex. Robbery), and meets a few other requirements, can see his/her manslaughter charge elevated to murder. In 1990, s.230 was declared in conflict with the Canadian Charter of Rights and Freedoms, but the Parliament never repealed it. These zombie provisions create risk of miscarriage of justice, and potentially, additional costs if trial goes into appeal.

R v Finta (Supreme Court of Canada, 1994) Facts: Finta is a Hungarian national (naturalized Canadian) who allegedly committed war crimes and crimes against humanity during WWII as a gendarme in a Hungarian village. His tasks involved deportation of Jews to concentration camps. He was charged under s.7(3.74) and s.7(3.76) of the Canadian Criminal Code for his actions. He contests the charges on the basis of vagueness of the Canadian provisions pertaining to crimes against humanity and war crimes, and also on retroactivity issues relative to these provisions.

Judicial History: The Ontario Court dismissed the charges pending against Finta, and the acquittal was confirmed by a majority of the Ontario Court of Appeal. The Crown appeals to the SCC. Finta cross-appeals on the issue on unconstitutionality of s.7(3.74) and s.7(3.76) of the Criminal Code.

Issue: Do the impugned sections of the Canadian Criminal Code violate section 7 and 11(g) of the Canadian Charter of Rights and Freedoms?

Analysis: The vagueness argument is rooted in the general principle of the rule of specificity, which is encompassed by the Canadian Charter under s.7. It clashes with the fact that international law is embedded in customary principles. However, such offences have a moral character (malum in se) which is associated with the notion that “everyone has an inherent knowledge that such actions [crimes against humanity and war crimes] are wrong or cannot be tolerated…”. Thus, they can be linked to the general principles observed by civilized nations, and such conducts would be prohibited under national laws. The majority judgment finds that the “contents of customary, conventional and comparative sources provide enough specificity to meet these standards for vagueness”.

In second place, the retroactivity argument is rooted in the articulation of the principle of legality, and is included under s.11(g) of the Charter. This sections specifically refers to the possibility of convicting an accused based a conduct deemed criminal “according to the general principles of law recognized by the community of nations”. The Court recognize that two new offences (crimes against humanity and war crimes) were created in 1945, but states that this factual consideration does not automatically result in a violation of the non-retroactivity principle. Previous international documents recognized “crimes against humanity” as already constituting violations of international and customary law, notably in the Hague Convention of 1907. Furthermore, the persons committing these acts were certainly aware of their immoral character.

Decision: The appeal is dismissed. The cross-appeal is also dismissed. The impugned provisions of the CCC do not infringe upon the Charter, and are thus constitutional.

Ratio: Direct application of the principle of legality through its articulation around the rule of specificity (vagueness), and the non-retroactivity principle.

The principle of legality in CVL and CML Roelof Haveman

The principle of legality is applicable both to the substantive (definition of crimes, penalties and execution) and procedural criminal law (all rules that govern criminal procedure). Regarding substantive criminal law, four aspects arise: (1) Lex scripta (punishability based on law), (2) no retroactive applicability, (3) lex certa (clarity of elements of a crime), and (4) no establishment of punishability by analogy. All of these are also applicable to procedural law.

In CVL, all four aspects are applied rather strictly. Originally, in CML countries, the principle of legality was not recognized. The example of the European Court of Humans Rights is interesting because it must adjudicate over jurisdictions which do and don’t recognize the principle of legality.

Lex Scripta and Certa: Implies a ban on punishability related to customary orders, and limiting it to written law. However, it does not refute the importance of customs in the definition of crimes. Originally, CML’s feature of judge-made law clashed with this principle. On a similar matter, CML’s approach to certa (clarity of the law), has been a combination of previous decisions of judges and statutory law. Of course, the clarity serves the citizen in protecting him/her against arbitrary power, but also gives him/her a choice since he/she knows the consequences of the actions.

Non-retroactivity is prohibited, except in cases where it can be advantageous for the accused. Interpretation of statutes can either be extensive or restrictive. However, the principle of legality generally advocates for restrictive interpretation, because an extensive approach can lead to retroactivity. First, there is a grammatical interpretation, followed by a “law-historical” one. Finally, there is also a “teleological”, or “functional approach” which examines the aim of the law in question rather than the intent of the legislator per se. Needs to be determined in the context of society.

Interpretation by analogy allows for comparisons of crime definitions, and leads to the creation of new crimes by analogy to existing ones.

Common features between CML and CVL. CVL finds essential the requirement to have a written law, which is different from CML. Foreseeability and accessibility are the central notions of the principle of legality, and are the bottom line, both in CML and CVL.

DATE: February 8th, 2017 TOPIC: Juvenile Justice NOTES:

· What does it mean to be criminally capable of committing a crime?

o Beyond causing harm, one needs to have the ability to distinguish right from wrong

o Capacity must be established before mens rea is considered· Children are excluded from the criminal justice process because they are not in a

position to understand the procedure, charges or their rights· The age for criminal responsibility in Canada is 12. In the U.S. it is 7. Western

European countries tend to range between 10 and 15o In Canada, for those between 14 and 18, it can be argued that the

accused’s knowledge of right from wrong warrants an adult sentence· Some sentencing options for juvenile offenders include: a reprimand, intensive

support and supervision order, an attendance order, deferred custody and a supervision order, intensive rehabilitative custody and supervision order

· Issue of responsibility for otherso In torts, it is assured that someone can be liable for the acts of

another (in a parent/child relationship), but in criminal law individuals are responsible for their own fault

o If negligence leads to a crime, it is hard to be held criminally liableo There is a desire to construct special duties to increase care, but it is

difficult to push this into criminal law READINGS: The Globe and Mail, “When a child kills in Canada, there’s no sense of justice” (2013)

· Article uses the killing of a six-year-old Saskatchewan boy by a child under 12 to illustrate the inadequacies of the child welfare approach presently in the law

o Although the child was known for violence, the only solution is more welfare involvement

· 12 was chosen for the age of responsibility because it is the age when children leave elementary school and younger children are said not to understand the court process

· Author suggests that the age of responsibility be lowered from 12 to 10o 10 year-olds know the difference between right and wrongo Many other countries have lower ages than Canada (e.g. 7 in the U.S.)o Some offenses committed by children are very seriouso Intervention usually does not occur until behaviour has become

serious; missed opportunities for early intervention through the juvenile justice system

o Perception that there is no real punishment may encourage offending behaviour

Department of Justice Canada, The Evolution of Juvenile Justice in Canada, 2004

· Pre-1908o Children under 7 were considered not capable of commiting a crimeo Children 7-13 were immune from prosecution, but the presumption of

incapacity could be rebutted by establishing that the child knew their actions were wrong

o The growing country had a high number of children at risk of delinquency

o Children were subject to the same penalties as adults (e.g. hanging, incarceration)

o With the enlightenment there was a growth in industrial and reform schools

· The Juvenile Delinquents Act of 1908o Important milestone as it treated children as misguided, not criminalso Document set the approach of the justice system in Canada for almost

75 yearso The proceedings for children became private

· The Young Offenders Act of 1984o The minimum age of responsibility is raised to 12o Juvenile justice becomes more uniform across the countryo There is a balance between due process, protection of society and

protection of offenders· Youth Criminal Justice Act of 2003

o Act reduced overreliance on incarceration and increased reintegration efforts

o Explicit statement of factors to be considered when sentencingo All trials take place in youth court, but in certain circumstances, youth

may receive an adult sentence Sénat (France), Session ordinaire de 2001-2002, Annexe au procès-verbal de la séance du 23 octobre 2001

· Une proposition de loi à tendre la responsabilité pénale des personnes qui exercent l’autorité parentale sur un mineur délinquant

· Motifso Plusieurs mineurs délinquants viennent des familles décomposées et

fragilisées par le chômage ; il y a un manque de soutien et d’autorité des parents

o Plus de 21% des infractions sont maintenant commises par des mineurs

o La loi va restaurer l’autorité que les parents ont le devoir d’exercer sur leur enfant

o L’autorité parental n’est pas une affaire privée· Objectifs

o (1) Poursuivre les parents d’enfants délinquants pour complicité en cas de négligences graves

o (2) Poursuivre de complicité de recel les parents négligents d’enfants receleurs

o (3) Instaurer un sursis avec mise à l’épreuve pour les parents d’enfants délinquants

§ Si le mineur commis une autre infraction, les sanctions peuvent consister en : une mise sous tutelle des prestations familiales, la révocation du sursis accordé lors de la première infraction du mineur, le retrait partiel ou total de l’autorité parentale, la nomination d’un tuteur chargé du mineur

Video: “Kid in Court for Killing His Father – 12 years-old”

· Court is in the process of asking the boy – who assisted in beating his father to death – if he understands that he does not have to testify and that nothing he says will be used against hi

· He is then asked to verify whether certain pieces of evidence were written by him QUESTIONS:

1. The age of criminal capacity in Canada should be lowered to 7. Discuss.a. Victims and the safety of the population must be consideredb. Keeping the age higher may be in the interests of the child, giving

them time to rehabilitatec. Sending them through the adult system may create a school of

crime2. What are some fundamental principles of a system of juvenile justice?

a. It has different goals than the adult system: it is more rehabilitative that punitive. Less coercive measures are used.

b. The trigger for entering this system is different than entering child welfare: children who commit an offense enter the justice system, while those in precarious situations enter the social work system

c. This means every section of the process is different: the process, detention facilitates, judges and lawyers

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DATE: February 10, 2017 TOPIC: Criminal Capacity and Responsibility - Mental Disorder

NOTES: The general basis of the law: if you don’t understand the crime you are committing and incapable of distinguishing right from wrong, you are not responsible for the crime. However, it is unclear what the requirements are to distinguish right from wrong. We do know, from psychologists and psychiatrists, that it is possible for a person to do something that they otherwise wouldn’t do. We cannot risk having requirements for mental disorder be too strict because there is much about the brain that is still unclear. Another important aspect of the law in this regard is whether you are presumed sane or insane. This shifts the burden from the defendant to the crown to prove their mental state. In our current system, there is a presumption of sanity. READINGS: R v. Chaulk

R v. Chaulk

Facts:-On September 3, 1985, 15-year-old Robert Chaulk and 16-year-old Francis Morrissette burglarized a home in Winnipeg, and then stabbed and bludgeoned its sole occupant to death. -A week later they turned themselves in, making full confessions-The only defense raised was insanity

Issue and holding:

-This appeal is to determine(1) Whether s. 16(4) of the Criminal Code, which provides that "Every one shall, until the contrary is proved, be presumed to be and to have been sane", infringes the presumption of innocence guaranteed in s. 11(d) of the Canadian Charter of Rights and Freedoms; and, if so, whether s. 16(4) is justifiable under s. 1 of the Charter;(2) Whether the meaning of the word "wrong" in s. 16(2) of the Code should be restricted to "legally wrong";(3) Whether s. 16(3) of the Code provides an alternative defence if the conditions of s. 16(2) were not met; and(4) Whether the trial judge erred in permitting the Crown to split its case by presenting its evidence with respect to the sanity of the accused in

rebuttal.

Holding-Robert Chaulk was subsequently found not guilty by reason of insanity in a new trial. After four months of treatment, Robert Chaulk was found sane and released.

Reasoning:

-Lamer – with Dickson, La Forest and Cory – held that section 16(4) violated s. 11(d) of the Charter, but was saved under section 1. He also held that the judge erred in interpreting the word "wrong" in section 16(4).

Wilson held that section 16(4) violated 11(d) and was not justified by section 1. She also held that the judge erred in interpreting the word "wrong" and erred in his instructions to the jury regarding the defence.

Gonthier held that section 16(4) did not violate section 11(d) and that the judge erred in interpreting the word "wrong".

-Lamer CJC explained that there is a presumption of criminal capacity. For a minor child, the reverse is true. For a child over age 14, the presumption of incapacity is rebuttable. A claim of insanity undermines the voluntariness of either the actus reus

or the mens rea. The focus is on incapacity to form a mental element – a mentally

disordered person does not have the capacity to distinguish between right and wrong.

“Wrong” means more than legally wrong or knowing the law of the land; it means morally wrong as well.

The test requires that the defence establish that due to the mental illness, the accused could not appreciate that his conduct: “conformed to normal and reasonable standards of society” “breaches a standard of moral conduct” “would be condemned.”

First, the presence of a mental disorder is required before this analysis is even undertaken. Second, moral standards are not judged on the personal standards of the accused.

-A trial judge must instruct the trier of fact that “appreciate that the act was wrong” means that because of the mental disorder, the accused could not understand or comprehend society’s moral condemnation of the conduct.

Notes/Thoughts:

R v. Demers

R v. Demers

Facts:

-The accused, who is moderately intellectually handicapped, was declared unfit to stand trial on charges of sexual assault.-The Review Board acting under the Criminal Code concluded that an accused found unfit to stand trial remains in the “system” established under Part XX.1 of the Code until either he becomes fit to stand trial or the Crown fails to establish a prima facie case against him-An absolute discharge is not available-People like the accused who are permanently unfit and could never stand trial are subject to indefinite appearances before the Review Board and to the exercise of its powers.

Issue and holding:

Issue-What is the constitutional validity of the provisions in the Criminal Code that allow for him to stay in the system (ss. 672.33, 672.54 and 672.81(1))

Held:-There is an infringement of section 7 rights

Reasoning:

-The impugned provisions are intra vires Parliament-The pith and substance of Part XX.1 of the Criminal Code is revealed by its twin goals of protecting the public and treating the mentally ill accused fairly and appropriately-The criminal justice system maintains jurisdictional control over the accused found unfit to stand trial because that person is subject to a criminal accusation and pending proceedings

This is different than mental disorder-With respect to s. 7 of the Charter , the deprivation of the unfit accused’s liberty accords with the presumption of innocence as a principle of fundamental justice-However, it is a well-established principle of fundamental justice that criminal legislation must not be overbroad

The means chosen by Parliament significantly advance the goals of assessment and treatment, which can result in rendering the accused fit for trial, and the goal of protecting the public

-In the case of a permanently unfit accused, a trial is not a possibility and the objective of rendering the accused fit for trial does not apply

Thus, the continued subjection of an unfit accused to the criminal process, where there is clear evidence that capacity will never be recovered and there is no evidence of a significant threat to public safety, makes the law overbroad

-The legislation thus infringes on section 7 rights for the liberty of the permanently unfit

The overbroad legislation cannot be upheld under s. 1 of the Charter , because its overbreadth causes it to fail the minimal impairment test

It deals unfairly with the permanently unfit accused who are not a significant threat to public safety

The regime does not provide for an end to the prosecution-The appropriate remedy in this case is a declaration of invalidity of the impugned provisions, suspended for a 12-month period to give Parliament time to amend the legislation

Notes/Thoughts:

R v. Swain

R v. Swain

Facts:

-In October 1983, Owen Swain was arrested for attacking his wife and children in a bizarre manner, and was charged with assault and aggravated assault-Later at the trial for the charges, Swain's wife testified that Swain was "fighting the air" and talking about spirits.-Swain testified that at the time of the incident, he believed that his wife and children were being attacked by devils, and that he had to protect them.

Issue and holding:

Issue-A constitutional challenge of the common law rule permitting the Crown to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code, which allowed for the indeterminate detention of an accused who is found not guilty by reason of "insanity"

Holding-The Court held that both the common law rule and the Code provision were unconstitutional

Reasoning:

-An accused person has the right to control his or her own defense-Since the defence of insanity is an exemption to criminal liability, based on not being capable to form the criminal intent, it is a defence to the criminal charge, and therefore should not be interfered with by the Crown.-If the Crown independently raised the defence of insanity, it could be inconsistent with the defence an accused person intends to rely on, putting the accused in a position of having to argue inconsistent defences-However, an accused's right to control their own defence is not an absolute right.

· For example, if an accused person puts their mental health at issue without going so far as to claim the defence of insanity, the Crown is entitled to "complete the picture"-The majority found that the common law rule infringed section seven of the Canadian Charter

· Also it failed the Oakes test-Thus the court created a new common law rule that was minimally intrusive: allows two instances of when the Crown can lead evidence of insanity

1. When the trier of fact has concluded beyond a reasonable doubt that the accused is otherwise guilty of the charges before the court

2. If the accused's own defence has put his or her mental capacity for criminal intent at issue.

Notes/Thoughts:

Winko v. BC

Winko v. BC

Facts:

-The appellant has a long history of mental illness and hospitalization, and has been diagnosed with chronic residual schizophrenia-In 1983 he was arrested for attacking two pedestrians on the street with a knife and stabbing one of them behind the ear

· Prior to this, he had been hearing voices-He was charged with aggravated assault, assault with a weapon, and possession of a weapon for purposes dangerous to the public peace

· He was tried and found not criminally responsible (NCR)-Under s. 672.54 of the Criminal Code, where a verdict of NCR on account of mental disorder has been rendered, the court or Review Board may direct that the accused be discharged absolutely, discharged subject to conditions or

detained in custody in a hospital

Issue and holding:

Issue-The appellant is challenging the constitutionality of the provisions of the Criminal Code dealing with the review of NCR

In particular to see if there is a violation of s.7 and s.15(1) of the Charter

Held-Appeal dismissed

Reasoning:

-The purpose of the relevant provision of the Code is to give an alternative of individualized assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment-It becomes clear that unless the board makes a positive finding on the evidence that the NCR accused poses a significant threat to the safety of the public, the court or Review Board must order an absolute discharge-Section 672.54 does not violate the principles of fundamental justice guaranteed by s. 7 of the Charter

The phrase “significant threat to the safety of the public” satisfies the test of providing sufficient precision for legal debate and is therefore not unconstitutionally vague

-The scheme is not overbroad, since it ensures that the NCR accused’s liberty will be trampled no more than is necessary to protect public safety-Section 672.54 of the Code does not infringe s. 15(1) of the Charter

A reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant, would not find these provisions to be discriminatory

-In its purpose and effect, Part XX.1 reflects the view that NCR accused are entitled to sensitive care, rehabilitation and meaningful attempts to foster their participation in the community, to the maximum extent compatible with the individual’s actual situationAny restrictions on the liberty of NCR accused are imposed to protect society and to allow the NCR accused to seek treatment, not for penal purposes

Notes/Thoughts:

Sanity, Madness and Responsibility – The Globe and Mail

-If we truly believe in the presumption of innocence, we won’t blame the mentally ill for what their illness made them do.-The Supreme Court of Canada said the key question is the individual’s capacity to recognize right from wrong “according to the moral standards of society.”

Not that you know about the killing-However we need to be careful or premature release, we don’t want people to get out and then kill more people (the case of Mr Chaulk)-If a person has capacity but fails to use it, he can be held criminal responsible-Advances in psychiatric treatment mean that some who would have been held indefinitely in the past may now return fairly quickly to the streets-Ordinary Canadians don’t think severe mental illness is an excuse or a phony justification.

Those who kill because of a mental disorder do have a responsibility to accept treatment, and try to heal, a responsibility shared with society to treat and try to heal them

-Juries accept the humane principle that someone who does not know what he’s doing should not be held criminally responsible for his actions. Mental Disorder and Canadian Criminal Law – Marilyn Pilon, Law and Government Division -Canadian courts have long had the power, in prescribed circumstances, to exempt an individual from criminal responsibility for actions performed while he or she was incapacitated by a mental disorder.-That power rests on “the basic principle of Canadian criminal law that to be convicted of a crime, the state must prove not only a wrongful act, but also a guilty mind.-In such a case, however, it may be necessary for the state to exercise some level of control over those mentally disordered individuals who are believed to pose a threat to others.

Thus, Parliament is faced with the challenge of achieving a balance between individual rights and public safety

Bill C 30-Bill C-30 created a whole new scheme for managing mentally disordered accused under Part XX.1 of the Criminal Code-First, the terminology of the former insanity defence was amended so as to exempt from criminal liability persons who commit the act complained of while suffering from “a mental disorder”-In addition, Bill C-30 provided a new definition with criteria for determining whether an accused is “unfit to stand trial,” something not previously spelled out in the Criminal Code.

-Subject to limitations, the courts also have the power to order involuntary treatment of a mentally disordered accused, for the purposes of rendering him or her fit to stand trial.-Upon finding an accused not criminally responsible on account of mental disorder, a court is no longer obliged to order him or her held in strict custody-Among the more controversial provisions of the bill were several that have not yet been proclaimed in force

For example, Bill C-30 contained the same “capping” provisions proposed in the 1986 draft legislation that would limit the length of time that an unfit or mentally disordered accused could be detained

-To address further concerns about the capping provisions and the limitations of provincial civil commitment laws, the federal government incorporated the “dangerous mentally disordered accused” (DMDA) provisions into Bill C-30.

They were patterned on the “dangerous offender” scheme in the Criminal Code that allows persons convicted of a serious personal injury offence or certain sexual offences to be sentenced indeterminately.

-In its 1976 Report, the Law Reform Commission argued that a therapeutic disposition should be available for persons who are held criminally responsible for their actions but who are, nevertheless, suffering from a mental disorder. Outstanding Issues that remain to be solved:

Review board powers: some argue that provincial review boards should have more power

Proclamation of inoperative sections Non-insane automatism: some times acting under automatism means you

don’t have a mental disorder Automatism is a common law defence that refers to “a state in which

the accused can be said to have lost control over his or her conduct because of a mental disorder, a physical illness or condition, a blow to the head, or a psychological shock.”

Some argue that people suffering from this should have the same protections as those with mental disorders

The fitness standard: Section 2 of the Criminal Code defines “unfit to stand trial” as unable “on account of mental disorder” to conduct a defence because of an inability “to understand the nature or object of the proceedings, understand the possible consequences of the proceedings, or communicate with counsel.”

Definition of mental disorder: As recommended in the final report of the Mental Disorder Project of the Department of Justice, Bill C-30 “retained and modernized” the insanity test by removing the phrases “in a state of natural imbecility” and “disease of the mind” and substituting “mental disorder.”

QUESTIONS (from class):

· In Canada you can be found “not guilty by reason of insanity”, yes or no?· “If we truly believe in the presumption of innocence, we wont blame the mentally

ill for what their illness made them do” –Globe and Mail, comment.· What is your best guess as to the percentage of people found unfit or not

responsible by reason of incapacity in Canada?· In the course of the trial you encounter evidence that an accused is definitely

psychotic. As an officer of the court you decide to introduce that evidence in the trial. Do you?

· Why do you think the Crown might want to adduce evidence as to the defendant’s insanity?

· Why do you think the Crown should not be able to adduce evidence as to the defendant’s insanity?

· Do you agree that defendants should be able to prove their mental disorder on a balance of probabilities?

· Why does a presumption of sanity affect the presumption of innocence?o What about a presumption of insanity?

· Why does is matter whether insanity is seen as going to the question of capacity of a defense denying mens rea or an excuse?

· “It is inconceivable that one would detain someone for merely being a “significant threat to the safety of the public”. However, that is exactly what happens to persons suffering from insanity”. Discuss.

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DATE: February 15th TOPIC: Statutes of Limitations NOTES:The Economist "Why sex crimes have statutes of limitations" · In the United States there is a Statute of Limitations on sexual assault. No national norm in United States. This is for both criminal and civil cases. o Though some states have an exception to their statutes of limitations when DNA evidence is found linking an individual to a sex crime o Some have intermediary statutes (for example; in Nevada you have four years to file a report, in New York the statute of limitation is five years for all sex crimes, except for rape)o Movement in some states such as Iowa, Maryland and DC to remove statute of limitations, but protests by the church who says that witnesses' memories fade over time, evidence is lost or never found, some people die.

§ Others counter that victims need time to digest and process incidents before they press charges. Too many also have no confidence in the justice system, and need time to be convinced. o For example; Bill Cosby has been accused of, but cannot be charged for sexual assaults. Victims from as far back as 1969 have come forward, but cannot find redress. Compare this to Canadian system, where if assaults had happened in Canada, victims could freely press charges today, years after the incident. “Canada’s laws could serve Bill Cosby sex assault accusers”, online: CBC · There is no statute of limitation for sex crimes in Canada.· Due to 1992 SCC ruling and ensuing legislative changes, flexible time limits for filing civil claims · Statute of limitation means that victims lose power to confront the problem and get closure; the accused lives under "perpetual cloud" as the authoritative body who would settle dispute cannot, and social media and public opinion puts them to trial Keilman, John. “Are statutes of limitations in child sex abuse cases too limiting? Chicago Tribute · Statute of limitation on sex crimes are a check on prosecutorial power and a safeguard against imperfect memories, · E.g. Case with Hastert; charged of financial crimes for a sexual abuse of a former student, because "child molestation" statute of limitation had run out. Judge gave him a harsh prison sentence for the financial crimes (but not harsh enough for the sex crimes) · Argument that child sexual abuse cases should not have a statute of limitations o Not pressing charges allows perpetrators to remain in our society, recidivism can be higho Child victims of sex crimes need time to come to terms with what has happened to them. Especially since most are abused by people in positions of authority to them, they may take a long time to trust an authority figure with the secret o Alternative to statute of limitations focus on age limit; NY bill that suggested giving people until age 28 to sue those who sexually abused or exploited them as children · Note in Illinois law, the statute of limitation for most crimes is 3 years, but for child sex crimes it is 20 years (the limit doesn't apply if a mandated reporter, such as a teacher or doctor, failed to come forward, or if there is physical evidence of the crime) · Continuing arguments for the statute of limitation; o Number of cases in the 1980s and 1990s in which people "recovered" memories of alleged abuse that happened years earlier. Prosecutors sometimes used those memories to win guilty verdicts, only to see the cases unravel when the recollections turned out to be faulty.

§ But false claims in general are exceedingly rare o It is extremely difficult to try these cases so much after the fact. Suspects can be forced to provide an alibi or supporting witnesses for something that happened decades earlier. § Still, even if it makes things harder for prosecutors, it is still important to eliminate statute of limitation in order to investigate old crimes “Customary IHL - Rule 160. Statutes of Limitation”, online: International Committee of the Red Cross. · Rule 160. Statutes of limitation do not apply to war crimes. This is a norm of customary international law applicable in relation to war crimes committed in both international and non-international armed conflicts. o Rule stems from 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity and the 1974 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes o Necessary as Stat limitations could prevent the investigation of war crimes and prosecution of suspects, violating obligation to investigate.o International Criminal Court (ICC) has no statute of limitations.o The idea that there is no statute of limitation is also present in military courts and statutes around the world, and Ethiopia's Constitution for example · When the rule was first drafted into the UN Convention, (finally adopted in 1970) o Many States opposed it as a new rule which would apply retroactively and violate the principle of non-retroactivity in criminal law. o Other States insisted it was not a new rule, just a formal expression of international norms, or that as war crimes should not, operate in typical regimes of criminal law. o Also, concerns with the lack of clarity regarding the definitions of “war crimes” and “crimes against humanity · It is true that insufficient evidence may amount to an obstacle to successful prosecution of war crimes that took place decades before proceedings were instituted, but such practical considerations do not undermine the principle that statutes of limitation are not applicable to war crimes BEFORE THE TRIAL CHAMBER EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA, CO-PROSECUTORS' SUBMISSION ON STATUTE OF LIMITATIONS FOR NATIONAL CRIMES, (2011) Intro:

· Question whether or not the statute of limitations had expired before the National Assembly of Cambodia extended the limitations period from 10 to 30 years in 2001. · Lower courts found that because of the lack of a functional judicial system and an ongoing civil war against the Khmer Rouge, the statute of limitations was suspended until at least 24 September 1993 (the date Cambodia was created by the promulgation of its Constitution) and thus had not expired as of 2001. Note there was no functional judicial system in Cambodia that could conduct a fair trial of the Accused until at least the mid-1990s. The ongoing civil war made it practically impossible to prosecute the Accused until their surrender to the Cambodian government in 1996 and 1998; and the Accused were directly responsible for the conditions that prevented their prosecution during this time period. · Natural law principle of contra non valentem agere nulla currit praescriptio ("prescription does not run against he who cannot act") - states have universally concluded that conditions which make it practically impossible to proceed with legal action, such as a state of war, impeded court functions or conduct of the defendant, suspend the statute of limitations · Czech Constitutional Court ruled a retroactive change in the statute of limitations is a procedural act that does not violate the principle of legality o And the Cambodian Constitutional Council's detennination that Article 3 ofthe ECCC Law did not violate any constitutional rights is final, binding and may not be reviewed by this Court, as judges and prosecutors have no right to interpret such laws adopted by the National Assembly Argument: · contra non valentem recognized by both national and international law (often actually incorporated into statute) · Underlying principle of statutes of limitation assume a functioning legal and judicial system (Not present in Cambodia in 1975 and 1979 due to war) · Limitations period only starts up again when there is effective access to the courts (this includes, open courts and the ability to gather evidence, hear witnesses, etc without fear of reprisals or interference). So even where courts are “open”, the running of statutes of limitation can be suspended.

DATE: February 17th

TOPIC: Double Jeopardy

NOTES:

· Rationale behind double jeopardy: finality, certainty of the law, not give the prosecution too much power

· If the facts are different, you cannot invoke double jeopardy.· You cannot retry someone on slight variations of the same facts.· Issues arise when the charges are slightly different (ex: 1st degree murder and 2nd degree murder)· DJ protects against unreasonably splitting a case / abuse – Section 12· DJ allows Force de la loi – Res judicata· DJ only applies in the realm of criminal law. You can be sued in a criminal court and a civil

court based on the same facts (ex: O.J Simpson) because the burden of proof is different. (reasonable doubt in criminal law and beyond 50% in a civil court)

· If you have already been prosecuted for a crime you cannot be prosecuted again even if incriminating evidence comes to light.

· DJ prevents harassment from the State.· DJ only applies if without it the defendant would be disadvantaged.

READINGS:

Costa, Jennifer E. “Double Jeopardy and Non Bis In Idem: Principles of Fairness”

· Souhalia Andrawes was convicted one by the Somali court for participating in hijacking and tried again and convicted 20 years later by a German court.

· The American public judged this as unfair since she did not benefit from the double jeopardy protection.

· CVL countries = non bis in idem· CML countries = double jeopardy· International law: you cannot be prosecuted for the same crime twice· US law: you cannot be prosecuted for the same crime twice by the same sovereign· DJ in the US:

o Protects against threats of re – prosecutiono Prevents unreasonably burdensome government activityo Only applies to criminal prosecutions

o Lesser and greater charges for the same crime are the same offense = DJ is applicable

o Only applies to prosecutions by the same sovereigno DJ is an absolute ruleo DJ does not apply when there’s an obvious procedural error in the trial and it needs

to be conducted againo DJ does not apply when an impartial verdict is impossible and the trial needs to be

conducted again· Civil Law and Non Bis In Idem:

Recognized by at least 50 countries

Law Reform Commission of Canada, Double Jeopardy, Pleas and Verdictso DJ is a central feature of our CJ systemo Prevents unwanted harassment. The State has more resources and power; it should

not abuse of it.o There have to be appropriate mechanisms for deciding guilt.

Sources of Double Jeopardy protectiono Autrefois acquis: The principles of estoppel are applied in criminal law, from the

fact that an accused was previously acquitted; the system is therefore estopped from re-convicting.

o Autrefois convict: Once an accused has been convicted for a crime, his criminal liability ends there.

o These pleas are in the Criminal Code. 607 1, 3,4,5o 609 (2)o 610(2)o 610(3)o 610(4)o R v. Van Rassel: the accused had to satisfy the following criteria in order to use an

autrefois acquit claim:Ø The matter is the same, in whole or in part.Ø The new count must be the same as in the first trial, or be implicitly

included in that of the first trial, either in law or in account of the evidence presented if it had been legally possible at that time to make the necessary amendments.

Ø If the differences between the charges are different in nature, then autrefois acquit cannot be applied.

o What defines a previous acquittal?Ø The accused has been placed in jeopardy (peril of conviction) during

previous proceedings.

Ø There has been a final determination equivalent to an acquittal.o Protection against unreasonably splitting a case

Ø Cannot split a trial if it deals with the same charges. If the facts are the same it should be one trial.

Ø R v. B – leading case on splitting trials. It established that:1) Where the trial forces the accused to answer for the same delinquency

twice.2) Where the second trial will re - litigate matters already decided on the

merits, raising the spectre of inconsistent verdicts3) Where the second trial is brought because of malice and to harass the

accusedo The rule against multiple convictions

Ø Developed in R v. KineappleØ Concept of res judicata

o Protection against inconsistent judgmento Section 12 of the Criminal Code - someone cannot be punishable more than once

for the same offenseo Constitutional protection against DJ (Charter – s.7, 11)o A previous foreign conviction or acquittal for the same or substantially the same

crime will result in a successful plea of autrefois acquit or convict However certain conditions must be met:

Ø The court must be one of competent jurisdictionØ The fact of acquittal or conviction by a foreign court is not enough: he

accused must truly have been in jeopardy

QUESTIONS:

· What is the point of the DJ rule?· What are the challenges of applying the rule?· You successfully appeal your conviction and obtain a retrial. You then invoke DJ?· You are accused of murder. The body, however has not been found. You are acquitted.

The body resurfaces 6 months later. The Crown wants to prosecute you. Under what conditions might it do so?

· How do you explain section 12 of the Criminal Code?· Why is the non bis in idem principle less likely to apply in a transnational context?· In Canada, what are the exceptions to application of the DJ rule in the transnational

context?

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DATE: February 22nd R v Butler

Facts:· Accused owned a shop selling/renting “hard core” video tapes and magazines as well as sexual paraphernalia· Charged with various counts of selling obscene material possessing obscene material for the purpose of distribution or sale, and exposing obscene material to public view, contrary to s. 159 (now s. 163) of the Criminal Code

Issue and holding:· Is s.163 of the CC constitutional?

o It violates s.2b freedom of expression, but is justifiable under s.1

Reasoning:· Does it violate s. 2b?

· In this case, both the purpose and effect of s. 163 are specifically to restrict the communication of certain types of materials based on their content. In my view, there is no doubt that s. 163 seeks to prohibit certain types of expressive activity and thereby infringes s. 2 (b) of the Chartero First, I cannot agree with the premise that purely physical activity, such as sexual activity, cannot be expressiono Rather, the meaning of the work derives from the fact that it has been intentionally created by its author

· Is it justified under s.1?o Is it prescribed by law?

§ Vagueness must be considered in relation to two issues in this appeal: (1) is the law so vague that it does not qualify as "a limit prescribed by law"; and (2) is it so imprecise that it is not a reasonable limit.· It is within the role of the judiciary to attempt to interpret these terms. If such interpretation yields an intelligible standard, the threshold test for the application of s. 1 is met. In my opinion, the interpretation of s. 163(8) in prior judgments which I have reviewed, as supplemented by these reasons, provides an intelligible standard

o Pressing and substantial objective?§ In this sense, its dominant, if not exclusive, purpose was to advance a particular conception of morality. Any deviation from such morality was considered to be inherently undesirable, independently of any harm to society· this particular objective is no longer defensible in view of the Charter

§ On the other hand, I cannot agree with the suggestion of the appellant that Parliament does not have the right to legislate on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society· As the respondent and many of the interveners have pointed out, much of the criminal law is based on moral conceptions of right and wrong and the mere fact that a law is grounded in morality does not automatically render it illegitimate

o Proportionality test:§ Rational connection

· In the face of inconclusive social science evidence, the approach adopted by our Court in Irwin Toyis instructive. In that case, the basis for the legislation was that television advertising directed at young children is per se manipulative· Same logic applied here, to this case, thus rationally connected**

§ Minimal impairment· Is minimally impairing· First, the impugned provision does not proscribe sexually explicit erotica without violence that is not degrading or dehumanizing· Second, materials which have scientific, artistic or literary merit are not captured by the provision. As discussed above, the court must be generous in its application of the "artistic defence"· Third, The intractable nature of the problem and the impossibility of precisely defining a notion which is inherently elusive makes the possibility of a more explicit provision remote. In this light, it is appropriate to question whether, and at what cost, greater legislative precision can be demanded· Fourth, while the discussion in this appeal has been limited to the definition portion of s. 163, I would note that the impugned section, with the possible exception of subs. 1, which is not in issue here, has been held by this Court not to extend its reach to the private use or viewing of obscene materials

§ Proper balancing· The infringement on freedom of expression is confined to a measure designed to prohibit the distribution of sexually explicit materials accompanied by violence, and those without violence that are degrading or dehumanizing

Notes/thoughts: none really, though out of interest recommend rereading the part on the “community standard test” part, which I found to have some faulty reasoning, though unimportant

R v Zundel

Facts:· The accused was charged with spreading false news contrary to s. 181 of the Criminal Code , which provides that "[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment· The charge arose out of the accused's publication of a pamphlet entitled Did Six Million Really Die? The accused had added a preface and afterword to an original document, which had previously been published by others in the United States and England. The pamphlet, part of a genre of literature known as "revisionist history", suggests, inter alia, that it has not been established that six million Jews were killed before and during World War II and that the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy

Issue and holding:· This appeal is to determine whether s. 181 of the Code infringes the guarantee of freedom of expression in s. 2 (b) of the Canadian Charter of Rights and Freedoms and, if so, whether s. 181 is justifiable under s. 1 of the Charter

o Held (Gonthier, Cory and Iacobucci JJ. dissenting): The appeal should be allowed. Section 181 of the Criminal Code is unconstitutional

Reasoning:· infringes s.2(b), which protects the right of a minority to express its view, however unpopular

o All communications which convey or attempt to convey meaning are protected by s. 2 (b), unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant.o Before a person is denied the protection of s. 2 (b), it must be certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity

· not justifiable under s.1o In determining the objective of a legislative measure for the purposes of s. 1 , the Court must look at the intention of Parliament when the section was enacted/ amended.§ while s.181 may be capable of serving legitimate purposes, Parliament has identified no social problem, much less one of pressing concern, justifying it.§ justification under s. 1 requires more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding Charter 's guarantees

Fagan v Metropolitan Police Commissioner [excerpt?]

Facts:· defendant directed by constable to park car close to the curb; drove his car onto the constable’s foot· constable told him to get off, and defendant refused· defendant convicted of assaulting the constable by magistrates (trial court?)· his appeal was dismissed by quarter sessions (appeal court?) who, while they were in doubt whether the driving on foot was intentional or accidental, were satisfied that he “knowingly, unnecessarily, and provocatively” allowed the car to remain on the foot

Issue and holding:· do mens rea and actus reus coincide to bring about criminal liability?· Holding: yes

Reasoning:· “for our part, we think that the crucial question is whether, in this case, the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot, or whether his act is to be regarded as a continuing act operating until the wheel was removed”o “if the assault involves a battery and that battery continues, there is a continuing act of assault”· “for an assault to be committed, both elements of actus reus and mens rea must be present at the same time”· “the actus reus is the action causing the effect on the victim’s mind. The mens rea is the intention to cause that effect. It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act. On the other hand, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault”· “for our part, we cannot regard such conduct (i.e wheel left on foot) as mere omission or inactivity. There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act”

R v Williams

Facts:

· W was diagnosed with HIV, and informed of his duty to disclose his condition to any sexual partners· Complainant, separately, tested negatively shortly after· W had an 18 month relationship with the complainant and kept complainant in dark about his condition, having unprotected sex with complainant· Was accepted as fact complainant wouldn’t have knowingly had sex with HIV positive person· Relationship ended in November 1992, and complainant tested positive for HIV in april 1994· At trial, W was convicted of aggravated assault and common nuisance. The Court of Appeal upheld the conviction for common nuisance but allowed the appeal against the conviction for aggravated assault, substituting therefore a conviction for attempted aggravated assault

Issue and holding:· Does actus reus coincide with mens rea, prove (able) beyond a reasonable doubt?

· Holding: no

Reasoning:· Where, as here, the Crown alleges an offence predicated on an aggravating consequence, it must prove the consequence beyond a reasonable doubt. An accused who fails to disclose his HIV-positive status cannot be convicted of an aggravated assault endangering life in circumstances where the complainant could already have been HIV-positive. In such circumstances, however, W was properly convicted of attempted aggravated assault.· The mens rea of the offence had been proven beyond a reasonable doubt, but the Crown was unable to prove an essential element of the actus reus, namely that W’s sexual conduct, after learning that he had tested positive for HIV, risked endangering the complainant’s lifeo Might’ve been infected already prior to W finding out about his infection· To constitute a crime, the actus reus and the mens rea or intent must, at some point, coincideo (with regards to attempted crime): Clearly, W took more than preparatory steps

R v Wholesale travel group

Regulatory Offences and Strict Liability· the number and significance of regulatory offences increased greatly with the onset of the Industrial Revolution· There is no doubt that regulatory offences were originally and still are designed to protect those who are unable to protect themselves.· This case illustrates the essential distinction in the legal treatment of regulatory as opposed to criminal offences -- namely, the removal of the mens rea requirement

Rationale for distinction between regulatory offences and true crimes· The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity.o Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests.· While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.· It follows that regulatory offences and crimes embody different concepts of fault.o Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime· That is the theory but, like all theories, its application is difficult· At this stage it is sufficient to bear in mind that those who breach regulations may inflict serious harm on large segments of society.o Therefore, the characterization of an offence as regulatory should not be thought to make light of either the potential harm to the vulnerable or the responsibility of those subject to regulation to ensure that the proscribed harm does not occur.o It should also be remembered that, as social values change, the degree of moral blameworthiness attaching to certain conduct may change as well.· Nevertheless there remains, in my view, a sound basis for distinguishing between regulatory and criminal offences. The distinction has concrete theoretical and practical underpinnings and has proven to be a necessary and workable concept in our lawThe fundamental importance of regulatory offences in Canadian society· Regulatory measures are the primary mechanisms employed by governments in Canada to implement public policy objectives· statistics such as these (*increase in regulations/sheer number of them) make it obvious that government policy in Canada is pursued principally through regulation.· In short, regulation is absolutely essential for our protection and well being as individuals, and for the effective functioning of society. It is properly present throughout our lives. The more complex the activity, the greater the need for and the greater our reliance upon regulation and its enforcement

Class notes/questions and answers Q: if it’s in the code, it’s a crime?

Sort of, but regulatory offences exist- hundreds of thousands of them federally/provincially, which SCC has said aren’t “true crimes” but they are broadly in the family of crimes and they’re not in the code

Q: How might the code not be the entirety of the criminal law?

court can invalidate provisions in the code; where offences have been deemed incompatible with the charter, but parliament didn’t clean up

also: international crimes, but only if ratified by Canadian parliament (for Canada this is the case; may not be the case in other countries; unitary instead of federal? He wasn’t clear)

Q: What of the charter substantially affects criminal law Nothing specifically arguably, but all rights have been seen to limit crimes scope,

or even entirely Criminal law has dominated charter litigation

Q: constitutionality of s.163 Does it suffice that some persons could suffer harm as a result of viewing

obscene material or hearing false news? Standard is if the community sees it as fine (butler) so in pornography the

entire community, even though some people might find it traumatizing, would be fine

Also the voluntary factor: you’re not being bombarded by it – you have to choose to access it

Do you think pornography has “meaning” such that it might violate s. 2(b) of the charter?

There is meaning in the respect that the director has chosen to portray these images so as to convey a meaning – it’s effectively meaning of some kind

Why is s.2 important? Underpinning of democratic society Search for truth as a human ideal requires us to express ourselves freely,

etc What is the difference between inringing and violating the charter?

Infringing is when it’s stepping on the toe of the right, but not yet determined if it can be saved by s.1 or not; whereas a violation isn’t justifiable under s.1

What are the 3 pillers of constitutionality analysis? i.e oakes test Has to be prescribed by law Has to a pressing and substantial objective Proportionality

Which is split into 3 steps (rational connection, minimal impairment, balancing effect)

Q: in order to determine whether a law infringes s.2 you should determine whether, based on parliamentary records, whether that was the intention of the legislator

No because you also look at the effect of the law; it’s an objective question of whether the rights enjoyment is being restricted

Q: How does the principle of legality enter the constitutional analysis

Has to be prescribed by law, and by laws which are precise enough Q: What counts as obscene is so vague that s.163(8) should be considered void for

vagueness Void for vagueness doctrine idea that principle of legality is being violated

applies See analysis under notes for Butler above

Q: How does obscenity, a word so characteristic of the Victorian mindset, survive into contemporary Canadian society?

What are the origin of all these obscenity laws? – religion, Victorian high mindedness, Britain, an era very different from ours

Why is it a problem that the origin is so different from our society we live in today?

Clearly answer is it’s a violation of s.2 because it isn’t compatible with new found rights under the charter

Q: What are the 3.5 requirements of proportionality The 3 mentioned above Why .5? because the court always says you have to look at what kind of

expression is being infringed – and not all manifestations of expression are equal; here it’s not a political speech, or a work of art, but it’s someone producing pornography

Shift in discussion to actus reus/mens rea Actus reus is a physical act, and mens rea is fault Could one argue that the requirement of offences being constituted by an actus and a

mens rea is a constitutional protection of the innocent (and not simply a technical way of defining what constitutes an offence)?

Let’s assume there’s only actus reus Would be the harshest regulatory offence – close to absolute liability Wouldn’t be a crime

Mens rea Just have thought something There is a law of attempts, but the law of attempts requires the beginning of

realization This requirement of mens rea and actus rea goes to the heart of liberal democracy; is a

right If you analyze Fagan v metropolitan police commissioner in terms of actus reus and mens

rea, what is the potential problem that the court has to settle? Main problem is the actus reus and the mens rea needs to coincide But the court said the actus reus is continuious and when mens rea crystallizes,

then the crime is committed In r v Williams

He didn’t know he had HIV, but he may have committed the actus reus of making the other person, but then when he found out and wanted to give that person HIV

It doesn’t matter whether he actually infected the person; he was convicted under law of attempts

General rule for these two there needs to be overlap over time

Feb. 24: Causality

Smithers v. R., [1978] 1 S.C.R. 506Facts:Smithers (plaintiff, appellant) was a black player on a hockey team, and members of the opposing team (particularly Cobby) racially insulted him during a game and then punched him twice in the head. He kicked him in the stomach and Cobby stopped breathing within 5 minutes. Cobby was dead on arrival at the hospital and the cause of death was determined to be "spontaneous aspiration from vomit"– choking on his own vomit. Smithers was convicted of manslaughter at trial and the conviction was upheld on appeal.Issue and holding: Was there evidence for the jury to find that causation was proved beyond reasonable doubt?

Causation was proved. Conviction upheld.Reasoning:

Was the jury entitled to find that it had been established beyond a reasonable doubt that the kick caused the death?(A) Jury was entitled to consider all of the evidence, expert and lay, in their deliberations with respect to the issue of causation, even on the precise question of whether or not the kick caused the vomiting or the aspiration (jury wasn’t restricted to medical evidence)§ Need to distinguish between causation as a question of fact and causation as a question of law.o Factual determination: whether A caused B, this can come from the evidence of witnesses (ex someone stabbing someone else – no need of expert evidence). Crown has the burden of showing factual causation.

(B) Evidence show that the kick was at least a contributing cause of death, which was outside the de minimis range. This is all that the Crown was required to establish. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed. No need to prove intention to cause death or injury (irrelevant to the question of manslaughter – the only intention necessary was that of delivering the kick to

Cobby). Doesn’t matter if death was foreseeable (if it did not “ordinarily result from the unlawful act”).

(C) Thin-skull principle: the accused has to take his victim as he finds him (ex if a person goes to rob someone, and he strikes him on the head while robbing him, and he just intends a light tap, but the man has a thin skull and suffers … severe brain injury, it is not a defence for the robber to say he didn’t know the man had a thin skull, and that no one else, or few others, would have had such, would have received a brain injury from that tap).In this case, “once vomiting had been induced, aspiration in these circumstances was no more than an accident, both Dr. Brunsdon and Dr. Butt acknowledged that the kick may have contributed to the epiglottal malfunction.” It doesn’t matter that such a kick wouldn’t typically result in death.Ratio:(1) Test for legal Causation – If the contributing cause is beyond the de minimis range, they can be said to have legally caused to incident.(2) Even if death is unexpected and the physical reactions of the deceased unexpected, if the accused intended to do grievous bodily harm to the deceased, that is enough to show causation. R. v. Nette R. v. Nette, [2001] 3 S.C.R. 488, 2001 SCC 78Facts:Accused robbed victim's house and left victim tied up on her bed. At some point, victim fell and died of asphyxiation though the accused had not blocked her mouth or nose. A number of factors were found to contribute to the asphyxiation process (hog-tied position, ligature around neck, age (95 year-old), lack of muscle tone). Charge of first-degree murder under 231(5), jury returned verdict of second-degree murder. Court of Appeal upheld that verdict.Issue and Holding:What is the proper threshold of causation required for second-degree murder?The Smithers test.Reasoning:The standard of causation for manslaughter and second degree murder is that the accused’s actions must have been “more than a trivial cause” of the victim’s death while, for first degree murder under s. 231(5), the accused’s actions also must have been a “substantial cause” of her death [this is the Harbottle standard : actions of the accused were found to be an essential, substantial and integral part of the killing of the victim (increase “participation”). This requires a higher degree of legal causation].

Responsibility for causing a result, in this case death, must be determined both in fact and in law.§ Factual causation is how the victim came to die in a medical, mechanical or physical sense and the accused’s contribution.§ Legal causation concerns the accused’s responsibility in law and is informed by legal considerations (wording of offense, principles of interpretation).

It is not appropriate in jury charges to formulate a separate causation test for 2 nd degree murder.§ The causation standard in Smithers still applies to all forms of homicide.§ Standard is not “ a contributing cause of death, outside the de minimis range” or “not a trivial cause” or “not insignificant” – not useful.§ Preferable to use: “significant contributing cause” (in positive terms).Ratio:Smithers still applies for all homicide cases. Harbottle only applies to cases of first degree murder. R v. Blaue R v. Blaue [1975] EWCA Crim 3Facts: Blaue stabbed the victim several times after the victim refused his sexual advances. The victim required a blood transfusion to survive. The victim was a Jehovah’s witness, therefore refused the blood transfusion for religious beliefs. She died. Medical evidence showed that she would not have died if she had received treatment.At trial, Blaue found guilty of manslaughter on the grounds of diminished responsibility. Also convicted of wounding the victim with intent to do her grievous bodily harm. Sentenced to life imprisonment.Issue and Holding:Was Blaue still responsible for causing the victim’s death?Yes.Reasoning:· Counsel for the Crown accepted that the girl’s refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the defendant was suffering from diminished responsibility.· The defence argued that the victim’s refusal to accept medical treatment broke the chain of causation between the stabbing and her death.

Reasoning: the stab was still, at the time of this girl’s death, the operative cause of death or a substantial cause of death.

Crown submits that chain or causation can be broken if the victim acted unreasonably, however those who use violence on other people must take their victims as they find them, the “whole man, not just the physical man” – it includes religious beliefs. The stab wound caused death. Victim’s refusal doesn’t change anything.*Victim’s acts might have an impact in favour of the wrongdoer when it comes to compensation. Ratio:Eggshell Skull rule: those who use violence on other people must take their victims as they find them, the “whole man, not just the physical man” – including religious beliefs. R v. Kennedy R v. Kennedy (On Appeal from the Court of Appeal (Criminal Division)), SESSION 2006-07, 47th REPORT ([2007] UKHLFacts:Marco Bosque was drinking with a friend in a hostel. Appellant prepared a dose of heroin for the deceased (Bosque) and gave him a syringe ready for injection. Deceased injected himself and later died. Cause of death: inhalation of gastric contents while acutely intoxicated by opiates and alcohol.Central Criminal Court: convicted Kennedy on manslaughter and of supplying a class A drug. 5 years of imprisonment and three year’s concurrent on for 2nd charge.Issue and Holding:Is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then voluntarily self-administered by the person to whom it was supplied to?Appellant’s conviction of manslaughter is quashed.Reasoning:(A) Manslaughter may be founded either on (1) the unlawful act of the defendant or on (2) the gross negligence of the defendant. HERE: unlawful act.(B) Have to show that unlawful act was a crime.§ HERE: S. 23 of the 1861Act: 3 offences: (1) administering a noxious thing to any other person; (2) causing a noxious thing to be administered to any other person (ex using an innocent 3nd party); and (3) causing a noxious thing to be taken by any other person (not voluntary or informed decision to take the drug). Leads to question of causation (C).(C) Have to show that the defendant’s unlawful act was a significant cause of the death of deceased.§ The act of supplying was clearly illegal BUT, without more, it could not harm or

cause death. The deceased had to use the drug in a form and quantity, which was dangerous.§ The criminal law generally assumed the existence of FREE WILL for “informed adults of sound mind” (exceptions: ex. young people, those not fully responsible for their actions). Here: exceptions don’t apply to deceased.§ So, is there a VOLUNTARY and INFORMED decision?o Doctrine of secondary liability: “an informed voluntary choice was ordinarily regarded as novus actus interveniens breaking the chain of causation.” The informed person would act as a principal.§ HERE: the conduct of deceased was not criminal and so he was not a principal offender. The appellant than cannot be liable as a secondary party. The deceased freely and voluntarily administered the injection to himself, knowing what it was = appellant cannot be said to have caused the heroin to be administered. He had a choice to inject himself or not.o Assistance or encouragement to take the drug ≠ administering the drug.Ratio:Assistance or encouragement to take the drug ≠ administering the drug therefore if death occurs the drug dealer is not responsible. R v JordanR v Jordan (1956) 40 Cr App R 152§ Facts:§ The appellant and 3 others (serving members of the US Airforce) became involved in a disturbance at a café in Hull.§ The appellant stabbed a man named Beaumont. He died and Jordan was convicted.§ After uncovering medical evidence not available at trial, an appeal was lodged on the grounds that the medical treatment the victim had received was so negligent as to break the appellant's liability.§ Issue and Holding:Reasoning:GENERAL RULE: the circumstances and medical treatment following serious bodily harm are not relevant in establishing a defendant's liability for his acts. Where the original wound or injury caused by the defendant is still an “operating cause” of death, negligent medical treatment will not constitute a novus actus interveniens.§ HERE: judge found that the death of the victim was not "consequent upon the wound inflicted”. In fact, the wound was mainly healed at the time of death. To prevent infection Beaumont was administered an antibiotic, terramycin. Beaumont was allergic. As a consequence, he developed diarrhoea. The administration was stopped but the next day, another doctor decide to start again. Beaumont died.B/c of all these mistakes, Court concludes that a reasonable jury would not be satisfied that the defendant's acts had been the material cause of the victim's death.

Ratio:Exceptional medical negligence may constitute a novus actus interveniens, capable of absolving a defendant of liability for any subsequent injury or death. “Finis for Novus Actus?” The Cambridge Law Journal - Williams, Glanville Novus actus interveniens: “new intervening act” Principle of autonomy and criminal responsibility: § “A person is primarily responsible for what he himself does.”§ A man “is total sovereign over his own actions” (Professor Kadish). Not responsible even if he provided the “background”: I won’t be responsible if I… § … suggest reasons to you for doing something § … urge you to do you § … tell you it is your duty to do it § … tell you I will pay you to do it “My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it” “The autonomy doctrine, expressing itself through its corollary the doctrine of novus actus interveniens , teaches that the individual’s will is the autonomous (self-regulating) prime cause of his behaviour”§ Give ex. of tobacco companies: they are not responsible. There is a relation of but-for causation between the manufacture and sale of tobacco and these deaths BUT tobacco companies do not COMPEL anyone to smoke SO responsibility for the consequences of smoking rests in law on the smokers.

DATE: March 3rd, 2017

TOPIC: Absolute, Objective or Subjective Criminal Liability (and for What Offenses)?

NOTES:

- Mens rea is not enough: Need actus reus in some part

- However, the fact that mens rea traditionally makes all the difference is not surprising -> question of morality

- In the 1950s in the UK a central problem revolving around the mens rea requirement is emerging: there are more and more regulatory offenses which are calling for a reassession of the place of evil in crimes. Leaves us with the question of whether criminal law is about being punitive or preventive

- Mens rea doesn't always determine the gravity of the offense: actus reus must also be taken into account (negligent driving is morally worse than stealing food for your children) -> intentional offenses are not automatically worse than negligent ones

- What is the difference between absolute, strict and mens rea liability? Absolute: you do the act, you are guilty (doesn't matter what you thought, if

you were negligent, or if you were reasonable) -> it's a strong prevention onus to impose on someone

Strict: Same as Absolute liability, but you can get out of it by proving that you acted reasonably (took all measures possible, or was a mistake)

Mens rea: something is (actively) going through your mind (conscience, knowledge, willfull blindness) regarding the actus reus

READINGS:

Serving Life for Providing Car to KillersBy Adam LiptakDec 4, 2007tl;dr : don't lend your car to people, they might kill someone while committing a felony and you will be liable too because you're technically an accomplice (USA). Facts-Ryan Holle, 25, convicted of murder, is serving life without the chance of parole in Florida because of his decision to lend his car to his friend.-The friend used the car to drive three men to steal a safe from the home of a drug dealer-The burglary turned violent, and one of the men killed the dealer’s 18-year-old daughter-Holle was a mile and a half away, but he was still convicted of murder under a "distinctively American legal doctrine" that makes accomplices as liable as the actual killer for murders committed during felonies like burglaries, rapes and robberies. Historical Context-This doctrine is an aspect of the felony murder rule, which can be traced back to English common law, but Parliament abolished it in 1957-The felony murder rule broadens murder liability for participants in violent felonies in two ways:

1. An unintended killing during a felony is considered murder 2. Killing by an accomplice is considered murder

-India and other common law countries have followed England in abolishing the doctrine.

-The SCC abolished felony murder liability for accomplices in 1990, because it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.” The case for the felony murder rule-Prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is appropriate because it creates increased accountability: "it holds all persons responsible for the actions of each other if they are all participating in the same crime.”-“A person who has chosen to commit armed robbery, rape or kidnapping has chosen to do something with a strong possibility of causing the death of an innocent person. That choice makes it morally justified to convict the person of murder when that possibility happens.”-Deterrence of murder: argument that criminals who know they will face harsh punishment if someone dies during a felony, may be more careful planning crimes, may not use deadly weapons or may decide not to commit the felony at all.

Should murder accomplices face execution?By John GramlichAugust 13, 2008 Debate: Should the death penalty should be given to those who participate in killings, but do not personally carry them out? This article discusses how some executions in the US have rekindled this debate:-Example: Dale Bishop was executed in Mississippi for his role in the 1998 murder of an acquaintance who was beaten to death by another man, Jessie Johnson, who delivered the fatal blows-Bishop was convicted under state laws that allow accomplices in some felonies that result in murder to be prosecuted as killers, even if they were not directly responsible for killing anyone-The laws are part of a broader legal principle in the United States known as the “felony murder rule,” which also allows those who unintentionally kill someone during serious felonies to be charged with first-degree murder, instead of the lesser charge of involuntary manslaughter.-All but four states (Hawaii, Kentucky, Michigan and Ohio) had some version of the felony murder rule. Of the 46 states with the felony murder rule, 24 allow prosecutors to use it to seek the death penalty for those not directly responsible for murder (rare though).-In Mississippi, the debate over the felony murder rule caused serious controversy before Bishop’s execution, particularly because the actual murderer in the case was spared from execution. Critique-Civil libertarians, trial lawyers and others have attacked the felony murder rule as an egregious example of unequal justice

-1980s: U.S. Supreme Court upheld the death penalty for accomplices if they intended their crimes to result in death or displayed “reckless indifference to human life” but critics of the rule say it is often impossible to know the intentions of criminals and that it can result in overly tough sentences. Support-Supporters argue: states should be authorized to execute felons who knowingly participated in dangerous crimes in which death is a likely and often foreseeable outcome, such as burglary, robbery and rape.-Believe it is a deterrent to committing such crimes and "an important tool allowing prosecutors to punish criminals who participate in exceptionally dangerous crimes."

R. v. Creighton, [1993] 3 S.C.R. 3

Facts Creighton, an experienced drug user, administered cocaine to an unwilling woman who subsequently died. He refused to contact the authorities when she stopped breathing after taking the drug, but his friend eventually did. He was charged with manslaughter and manslaughter by criminal negligence.·Unlawful Act Manslaughter (s. 222(5)(a)): causing the death of another human being by means of an unlawful act

Issue 1. Is the mens rea required for manslaughter subjective or objective?2. If it is objective, how much weight should be given to the personal

characteristics of the accused?3. Is the objective standard contrary to s. 7 of the Charter.

Holding Appeal dismissed.

Reasoning -New approach to the objective standard – marked departure from the standard of care of the reasonable person-Note that the reasonable person is not invested with any personal/individual factors of the accused except for those that reveal their incapacity to act as a reasonable person would be expected-If a person finds themselves in circumstances where a reasonable person would have foreseen the risk of bodily harm (which is neither trivial nor transitory), and the unlawful act is at least a contributing cause of the victim’s death (outside the de minimus range), then that person is guilty of manslaughter

McLachlin (Majority):1. Single objective standard (objective, not a modified objective test)

with the exception of those who are incapable of appreciating the

nature of the risk of the activity2. All you need is objective foresight of bodily harm; No need to modify

the objective test to take into account the particular characteristics of the accused

3. Objective foreseeability of bodily harm is sufficient – do not need foreseeability of death

Detailed Reasoning/Process Lamer gives the minority (5-4) decision. He states that there is no

general constitutional principle that states that crimes need subjective mens rea. He says that only specific heinous crimes that carry with them a certain stigma require subjective mens rea. Although manslaughter involves the killing of a person, it does not involve intentional killing and therefore is not as stigmatic as murder. He says that the Charter requires a minimum of objective mens rea. He also goes on to say that the test for manslaughter is an objective test; however, a mere objective test would violate s.7 – therefore it needs to be a modified objective test that takes the specific circumstances of the individual into considerable note. He says that you must consider the capacities of the individual in determining whether they ere able to live up to the objective reasonable standard, and then alter the standard accordingly if they were not.

La Forest states that he prefers a subjective test for mens rea in manslaughter, but realizes that this is not going to be accepted and sides with McLachlin over Lamer.

McLachlin agrees that the test is objective, and that only objective mens rea is required for manslaughter. However, she disagrees with the alterations to the objective standard that Lamer attempts to make. She finds that the common law requirement of "objective foreseeability of the risk of bodily harm" is constitutional. Lamer disagreed and stated that you needed to have objective foreseeability of harm causing death – for him foreseeability of simply bodily harm is unconstitutional. According to McLachlin, to do this would require the courts to abandon the thin skull test and require the Crown too prove to much in order to get a conviction for manslaughter. She states that manslaughter is treated to be much less blameworthy than murder, and that this must be considered.

McLachlin completely disagrees with Lamer's additions to the objective test, and states that they essentially make it a subjective test. She says that the reasonable standard should not be concerned with "frailties" of the accused's character, and that public policy demands a single, uniform legal standard to be identified. The standard is what a reasonable prudent person would have understood in the circumstances – therefore situations of greater danger will require a greater expertise in the standard of care. In

the end she sets out a three-part test that must be satisfied for a conviction in manslaughter:

1. Establish actus reus – the activity must constitute a marked departure of the care of a reasonable person in the circumstances.

2. Establish mens rea – the activity must have been done while there was objective foresight of harm (not death) that can be inferred from the facts. The standard is of the reasonable person in the circumstances of the accused.

3. Establish capacity – given the personal characteristics of the accused, were they capable of appreciating the risk of harm flowing from their conduct?

Ratio The subjective aspect of the mens rea for manslaughter is intent to cause bodily harm and the foreseeability of that harm's likelihood of causing death is determined by an objective standard. The objective standard is that of the reasonable person.

Objective mens rea is in line with the Charter, and is all that is required for a conviction in manslaughter.

The objective standard is whether a reasonable person in the circumstances would have foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has been proven. You should not incorporate personal characteristics into the reasonable standard, as it has to be an unchanging standard that is easy to understand. Only if an accused lacked the capacity to understand the risk flowing from their actions can they be excused.

R. v. Hundal, [1993] 1 S.C.R. 867 (extracts)

Facts Hundal was driving his overloaded dump truck towards an intersection. There were several witnesses who said that he ran a red light. He is charged with "dangerous driving causing death" under s. 233 (now s. 249) of the Criminal Code. Section 249(2) criminalizes simply creating the risk by dangerous driving, (3) deals with bodily harm and (4) when the driving causes death. The difference between these subsections is the punishment that they allow.

Issue What is the mens rea required to prove the offense of dangerous driving?

Holding Appeal dismissed.

Reasoning To determine this issue the court must interpret s. 249 of the Code.

They modify the objective test to allow subjective standards to be brought in as a consideration. They say that overall it is an objective standard of fault that is required. The court looks at the wording of the section and determine that it implies an objective standard. They also look at the nature of driving and determine that it is not required of the court to determine that the individual had the specific knowledge required – if you have the mental capacity to drive, and the license to do it, then you have to meet the standard of not driving dangerously. What you are thinking does not seem to matter in this case.

This is a purposive approach – what is the activity? How is it regulated? They also look at the nature of the activity of driving – it is almost a reflexive activity, as drivers have trouble stating what their specific intent was at any point while driving. Therefore, proof of subjective fault becomes almost impossible. They also look to statistics to say that the objective test is required because it will be easier to get convictions, which will result in deterrence for potential future dangerous drivers. The majority does not make explicit why this does not apply for other crimes we wish to deter, such as murder.

The offence at issue should be assessed objectively within the context of all the surrounding events - "The trier of fact must be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation."

Ratio The test for the required mens rea of dangerous driving is a modified objective test - you must take all of the surrounding circumstances into consideration in order to determine if the accused committed a "marked departure" from what a reasonable person in the same circumstances would have done.

http://casebrief.wikia.com/wiki/R_v_Vaillancourt→ Murder, IntentionAppellant: VaillancourtRespondent: The Crown

R v Vaillancourt (1987) SCR

Facts Vaillancourt was convicted of second-degree murder resulting from a robbery of a pool hall. He had a knife and thought that his friend also had a knife when in fact his friend had a gun. He explicitly told his friend before the event that he did not want to have guns involved. During the robbery, his partner fired a shot and someone was killed. The charge falls under s.230(d) which negates any necessity for mens rea of killing to be proven

before a conviction can be entered. The defendant is challenging this section, stating that it is contrary to ss.7 & 11 of the Charter.

Judicial History

Convicted at trial by juryCourt of Appeal of Qc upheld the judgement

Issue (1) Is s.230(d) of the Criminal Code contrary to s.7 of the Charter because it imposes absolute criminal liability?

Holding YES. Appeal allowed, new trial ordered.

Reasoning

Lamer J. (para 35): «The acid test of the constitutionality of s. 213 is this ultimate question: Would it be possible for a conviction for murder to occur under s. 213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? If the answer is yes, then the section is prima facie in violation of ss. 7 and 11 (d).»

Lamer, writing for the majority, clearly decides that this section is contrary to the Charter as it establishes an absolute criminal liability. He states that it is a principle of fundamental justice that there must be at least a minimal mental state requirement before criminal liability can be imposed. A failure to require this is contrary to s.7. He goes on to say in obiter that all crimes of murder require a subjective fault element to be proven because of the limits on freedom that their punishments impose.

Ratio All crimes with significant stigma attached, such as culpable homicide and constructive murder, require that the Crown prove objective foresight of death (subjective foreseeability is only mentioned in obiter and therefore not binding).

http://casebrief.wikia.com/wiki/R_v_Sault_Ste._Marie→ Absolute liability, intention, strict liabilityAppellant: The CrownRespondent: Sault Ste-Marie

R v Sault Ste Marie (1978) SCR

Facts Sault Ste. Marie was responsible for the disposal of garbage in their city. They entered into an agreement with a third party to dispose of garbage in a particular area. This party created a landfill that leaked into the nearby river causing pollution. S. 32(1) of the Ontario Water Resources Act (now s. 30(1)) stated that every person or municipality that discharged, deposits or causes or permits the discharge or deposit of pollution into water is liable under summary conviction at the first offence for a fine of not more than

$5000, and on subsequent offences of a fine not more than $10,000 or to imprisonment for less than a year.

Judicial History

The charge was dismissed at trial as the judge held that the city was not itself responsible for the disposal operations, but a conviction was entered at trial on the basis of strict liability under the Act.

Issue (1) What is a public welfare offence and is it a strict liability offence?

Holding Appeal and cross-appeal dismissed, new trial ordered.

Reasoning

Dickson, writing for a unanimous court, goes through all of the reasons for and against public welfare offences in other jurisdictions and comes to the conclusion that they are to have a lesser fault requirement than true crime offences (those in the Code). However, when they are serious and have the risk of hefty fines or imprisonment the defendant should not be absolutely liable; they should have the chance to excuse themselves if they can show, on a balance of probabilities, that they lived up to reasonable standards in the situation. He defines three types of offences:

1. True crimes: offences that require mens rea («consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence» p1325-1326)

2. Offences of strict liability: offences in which there is no necessity for the Crown to prove the existence of mens rea but the defendant can get off by proving that they acted reasonably in the circumstances (notion of reasonable care/reasonable person) Public welfare offences tend to fall in this category, as they are not in the Code, but have the risk of large fines or imprisonment associated with them.

3. Offences of absolute liability – The Crown does not need to prove mens rea, and the defendant has no chance to exculpate himself by showing he was acting reasonably. These are generally only offences with very minor fines as punishment.

«Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully,” “with intent,” “knowingly,” or “intentionally” are contained in the statutory provision creating the offence.» p 1326

He goes on to state that another reason why specific offences fall under the latter two headings are because they are created in provincial statutes. Provinces have no control over criminal law under the Constitution Act therefore they cannot be "true crimes".

Ratio - There are three different types of offences: true crimes, strict liability offences, and absolute liability offences.

- Offences that are created in provincial statutes can only be absolute or strict liability offences, because provinces have no jurisdiction to enact criminal law.

- In general, public welfare offences are strict liability offences.

http://casebrief.wikia.com/wiki/Reference_re_Section_94(2)_of_the_Motor_Vehicle_Act_(B.C.)→ Absolute liability

Re BC Motor Vehicule Act (1985) SCR

Facts Section 94(2) of the Motor Vehicle Act stated that a person who drives a motor vehicle on a highway while his license is suspended is guilty of an offence, and is liable to a fine between $300 and $2,000, and imprisonment between a week and six months (on the first offence). The government is arguing that this does not violate s.7 of the Charter.

Judicial History

The Court of Appeal ruled that this violated [1] because absolute liability offences cannot have mandatory prison sentences. Having mandatory prison sentences for crimes that have no defence violates the principles of fundamental justice and the right to be presumed innocent. However, they did not answer whether or not merely having imprisonment available as an option for an absolute offence was contrary to s.7.

Issue (1) Can absolute liability offences have imprisonment available as a punishment?

Holding Appeal dismissed; the section violates s.7 of the Charter and is of no force and effect.

Reasoning

Lamer, writing for the majority, states that even having imprisonment available as a punishment for an absolute liability offence always violates s.7 of the Charter, and renders the section of the legislation of no force or effect unless it is justified by s.1. He states that the principles of fundamental justice rest not just in the procedural context, but also in our rights. The combination of imprisonment and absolute liability always violates s.7 and must be saved by s.1 in order for it to remain valid. However, doesn’t mean that all absolute offences violate s.7 - only the ones with imprisonment available as a punishment.

Lamer does not find that this section is saved by s.1, as it does not "minimally impair" the impugned right (this judgment is pre-Oakes). In her

concurring judgment, Wilson talks more about the objectives of imprisonment, and how they are not served by imprisoning people without a chance to defend themselves.

Ratio - Absolute liability offences that have imprisonment available as a punishment violate s.7 of the Charter.

- Imprisonment without a chance of defence is contrary to the principles of fundamental justice.

Lamer J (para 2): “A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person's right to liberty under s. 7”

Baroness Barbara Wootton. Crime and the criminal law: Reflections of a magistrate and social scientist (Stevens, 1963), read pages 42-51.

2. The Function of the Courts: Penal or Preventive?

- We must recognize that there is a broad range from “heinous to trivial” crimes: Otherwise anything that is considered to be “wicked”/a crime would be disregarding the circumstances surrounding it.

- That is why traditionally, there is a requirement of mens rea for an act to be considered a crime.

- However, today there has been an emergence of strict liability cases, suggesting that mens rea is maybe no longer necessary for conviction

- Some (ex: Dr JJ Edwards) say that this “absolute prohibition may have the opposite effect than what is intended and lead to a weakening of respect for the law”

- Others say that whoever has committed a forbidden act must have somewhere down the line intended to commit it

- However we must not ignore that the presence or absence of deliberateness does affect the impact the crime has on the victims

- Basically:- Mens rea is an essential element- But it is not because an act is not voluntary that it becomes harmless (we

must still prevent negligence, carelessness and accident)- Hence the question of the mens rea is “irrelevant in the first instance, but

only at the first instance”: “after what is now known as a conviction, the presence or absence of guilty intention is all-important for its effect on the appropriate measures to be taken to prevent a recurrence of the forbidden act.”

- “For all these reasons it is recognised that there are many offences which, if they are to be dealt with by the criminal courts at all, can only be judged on a basis of strict liability. Motoring offences in particular illustrate all too vividly the fact that in the modern world in one way or another, as much and more damage is done by negligence, or by indifference to the welfare or safety of others, as by deliberate wickedness.” (p64)

DATE: March 10, 2017 TOPIC: The Spectrum of Criminal Fault: From Intention to Negligence NOTES: Mens Rea operates as a spectrum, on which manslaughter is situated somewhere in between absolute mens rea and subjective mens rea. In a crime of strict liability (criminal)or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence. Are reckless and negligence the same? -> NO: The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. Even below recklessness but still subjective mens rea is wilful blindness – the difference between wilful blindness and negligence, is that you had a moment of lucidity where you thought oh maybe that person isn’t consenting but I’m not going to ask her/make inquiries and you brush it off in the back of your mind – the fact that you had that spark of realization is sufficient

A crime is based on mens rea and actu reus. Motive plays no role in determining guilt, but may come in to play during sentencing. This can be seen in the Regina v Buzzanga an Durocher and R v Tutton cases. READINGS:

Regina v. Buzzanga and Durocher

Facts: B & D were Francophones living in Essex County. They were arrested and charged with willfully promoting hatred against an identifiable group after publishing and distributing pamphlets which were offensive to other francophones, in an attempt to combat apathy and create sufficient uproar to get a French secondary school built. Their intention wasn’t to promote hatred.

Issue: Since the mens rea wasn't there but the result is the same, are they guilty of the wilful promotion of hatred?

Held: Trial judge erred in equating their admitted intention to create controversy, furor or uproar with an intention to promote hatred. Appeal allowed. Retrial.

Reasoning:· “Willfully” in the context of s. 281.2(2) means with the intention of

promoting hatred, and does not include recklessness· Even if “willfully” was not included in the provison, the general mens rea

which is required where no mental element is mentioned in the definition of the crime is either the intentional or reckless bringing about of the result which the law seeks to prevent

· Taking the above into consideration, it can be assumed that Parliament intended to limit the offence under s. 281.2(2) to the intentional promotion of hatred.

· Was there an intentional promotion of hatred?: “a person who foresees that a consequence is certain or substantially certain to result from an act that he does in order to achieve some other purpose intends that consequence”

· Therefore, case sent back to trial to determine: if (a) their conscious purpose in distributing the handbill was to promote hatred against the French Canadian community, or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet, but distributed it as a means of achieving

their purpose of having the high school built· We must answer these questions in order to establish if B & D intended to

promote hatred, thus satisfying the willful component of s. 281.2(2)

Ratio: In general, mens rea is satisfied as long as the outcome was intended or achieved through recklessness. However, including the term "willfully" implies that recklessness will not suffice to prove the necessary mens rea, and we must endeavour to prove intention.

Sansregret v.The Queen

Facts: Sansregret is appealing rape charges on the defence of mistake of fact, where he thought that the victim consented to the rape. The victim admits to having consented to intercourse only in hopes of calming down her armed and enraged ex-boyfriend while she feared for her life.

Issue: Can the accused be charged for rape when he claims to have thought the victim actually consented

Held: Yes, when the accused is willfully blind to the fact that consent was extorted

Reasoning:· Where the accused in a case arising under s. 143 (b)(i) asserts an honest

belief in consent, the honest belief must encompass more than the fact of consent. It must include a belief that it has been freely given and not procured by threats.

· The defence of mistake of fact has been said to rest on the proposition that the mistaken belief, honestly held, deprives the accused of the requisite mens rea for the offence

· the mens rea for rape under s. 143(a) of the Code must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not, and for s. 143 (b)(i), knowledge that the consent was given because of threats or fear of bodily harm, or recklessness as to its nature.

· Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by

consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry

Ratio: The rule that willful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It can be found only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. While recklessness does not overcome the defense of mistake of fact, willful blindness does.

R. v. Tutton

Facts: The Tutton’s son was diagnosed with diabetes and was prescribed insulin injections. Being strong believers in religion, they stopped administering insulin to their son, believing he will be cured by the Holy Spirit. He died, even though doctors had explicitly warned the Tuttons on this danger

Issue: Can the Tuttons be convicted of manslaughter if they had a sincere belief that their child was or would be healed?

Held: Yes

Reasoning:· Criminal Negligence: What is punished, in other words, is not the state of

mind but the consequence of mindless action.· In criminal cases, generally, the act coupled with the mental state or intent is

punished. In criminal negligence, the act which exhibits the requisite degree of negligence is punished.

· We must apply an objective test to determine criminal negligence: The test is that of reasonableness, and proof of conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances will justify a conviction of criminal negligence.

· Given the defence of mistake of fact, it is up to the jury to determine whether, considering the circumstances, the Tuttons departed from the standard of reasonably prudent parents

Ratio: Criminal negligence offences seek to punish the act resulting from mindless action, not the state of mind. In order to determine criminal negligence, the circumstances must be considered in determining if an

individual’s behaviour departed from that of a reasonable person.

R. v. Creighton

Facts: Marc Creighton, Frank Caddedu, and Ms. Martin consumed large amounts of cocaine and alcohol. Creighton injected himself and his two consenting companions with cocaine. Martin immediately began to convulse and stopped breathing. They were unsuccessful in resuscitating her. Caddedu tried to call 911 but Creighton's threats prevented him from doing so. They cleaned any signs of fingerprints from around the house and then left. Caddedu came back several hours later and called the police. Creighton was charged under s. 222(5)(a) and (b) of the Criminal Code for manslaughter.

Issue: Does the common law use of manslaughter (s.222) violate section 7 of the Charter?

Held: No

Reasoning:· The very fact that manslaughter is named differently from murder indicates

that it is to be treated as less blameworthy. The punishment reflects this in that it has no minimum sentence, which is in line with the principle that intentional crimes are to be punished more severely than unintentional crimes.

· The trier of fact must pay particular attention to any human frailties which might have rendered the accused incapable of having foreseen what the reasonable person would have foreseen -> in concreto -> similar to torts; objective person of the accused capacity

The objective test for criminal negligence:1. Would a reasonable person in the same circumstances have been aware that

the likely consequences of his or her unlawful conduct would create the risk of death? NO= acquittal YES = next question

2. Was the accused unaware (a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result;

NO= next question YES= convictionor (b) because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and thus to the risk of death likely to result, due to human frailties? NO= YES= next question

3. In the context of the particular offence, would the reasonable person with the capacities of the accused have made him- or herself aware of the likely consequences of the unlawful conduct and the resulting risk of death? NO= acquittal YES= conviction

Ratio: The objective standard is whether a reasonable person in the circumstances would have foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has been proven. You should not incorporate personal characteristics into the reasonable standard, as it has to be an unchanging standard that is easy to understand. Only if an accused lacked the capacity to understand the risk flowing from their actions can they be excused.

R. v. Hundal

Facts: Mr. Hundal was driving an overloaded dump truck above the speed limit through downtown Vancouver. When Mr. Hundal entered an intersection on a red light he collided with a car that had also just entered the intersection on a green light, killing the driver.The accused claimed that he entered the intersection on a yellow and did not have time to stop. However, the trial judge rejected this based on the evidence of several eyewitnesses. Mr. Hundal was convicted of dangerous driving causing death under s.249(1) of the Criminal Code.

Issue: Was the appellants manner of driving a departure from the standard of a reasonably prudent driver in the same situation?

Held: Yes

Reasoning:· An objective test must be applied to the offence of dangerous driving, but with

some measure of flexibility to take into account sudden human frailties which could provide a defense for objectively dangerous driving

· In summary, the mens rea for the offence of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident.

· The trier of fact should be satisfied that the conduct of the accused amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.

Ratio: In determining a offense of dangerous driving, we must apply the test of

a reasonably prudent driver

Trial of Woman Who Treated Son with Holistic Medicine Will Reignite Debate over Alternative Treatments Article about Tamara Lovett, 47, who is being charged with failing to provide the necessaries of life and with criminal negligence causing the death of 7-year-old Ryan Alexander Lovett. QUESTIONS:

· Why is an honest mistake as to consent a defense to a charge of sexual assault, but a mistake about a relevant circumstance not necessarily a defence to manslaughter?

· What does it take to prove negligence?· Is it a defence for the Tuttons to claim that they sincerely believed their son would

be miraculously cured?· What is the difference between recklessness and wilful blindness?· If proving recklessness, what is particularly damning in the behaviour of Sans-

Regret?· Sans-Regret ought to be convicted of rape even if he was honestly mistaken about

the absence of consent, because a reasonable person in his place would have known that there could not be consent? Comment.

· Are reckless and negligent the same· What is the ambiguity of “wilfully”?

DATE: March 17, 2017

TOPIC: Inchoate, Impossible and Voluntary Offenses

NOTES: Inchoate offence is one that is lacking actus reus; thus, mens rea is truly what

determines the offence. For instance, conspiracy requires no actus reus, but only occurs when you agree. Under the subjective theory of offences, stealing your own umbrella would still be considered as an offence, though, theoretically, the elements are not there. The objective theory, on the other hand, states that one can’t be even of an attempt merely because of your intent. Today, the latter approach is the dominant one and requires a minimum execution

(authoritarian approach); it is used by the state to deter criminal behaviour. Impossible crimes are a sub-category of attempt; thus, not all attempts arise out of impossibility.

Thinking about committing a crime does not amount to actually committing it. Often, it’s a question of act: one can only be charged with attempt if an act is unequivocal. Also, one can’t be charged with attempted strict liability offence because it is concerned with negligence.

Factual impossibility means reaching into one’s pocket to steal a wallet but the pocket is empty, while legal impossibility is reaching into one’s pocket and find your own wallet.

None of them, however, can be used as defences; what matters is the intention. It gets tricky when what you are thinking you’re doing is not socially dangerous.

The one thing that is not criminalizeable is imaginary offences (e.g. thinking that importing sugar is criminal and doing it anyway), which is part of the imaginary offences.

READINGS:

R v. Shivpuri, [1986] UKHL 2, [1987] AC 1

R v Shivpuri

Facts: S was convicted of dealing and harbouring drugs with intent to traffic after he confessed having committed both offenses. However, the package which he thought contained illegal drugs actually contained powdered vegetable matter.

Issue and holding: Can a person be found guilty of an offence if they believe they are committing a crime, but in reality, they aren’t? Yes - but guilty of “attempt” to commit the crime. I.e. is legal impossibility a defense? Not a defense for an attempt.

Reasoning: Legislation maintains that if you are knowingly trafficking a drug, it does not matter if the one you are actually trafficking is not the same as the one you thought (ex: think you’re trafficking weed but really you’re trafficking heroin). You are guilty of the offence you are charged with (heroin trafficking).

The case at bar is different because the actus reus was not actually criminal. The appellant clearly intended to evade prohibitions on importation of drugs.

Moreover, he did an act that was more than merely preparatory. Thus, the appellant is guilty of attempt to commit the crime.

Objective innocence (when someone thinks they’re guilty but is actually innocent - legal impossibility) cannot be applied in criminal law - the innocent act becomes guilty by the criminal intent.

The fact that your dominant intention was not criminal can't be a defense either. Even if you do an act that is considered innocent as a matter of common sense, you still commit a crime. (e.g. when you buy an object that is so cheap that you suspect it to be stolen, you cannot claim that your dominant intention was to buy this object at a bargain price, which is not criminal)

Notes/Thoughts: A person who commits more than mere preparatory steps of an

objectively innocent act but with criminal intent will be found guilty of attempt to commit the intended offence.

Deutsch v. The Queen, [1986] 2 S.C.R. 2

Deutsch v The Queen

Facts: Appellant wants to recruit a secretary / sales assistant for his business. He conducted interviews with three women and with a police officer who posed as an applicant during which he informed them that the position requires them to have sex with potential clients in order to conclude contracts. The appellant did not make an offer to any of the three women (they left upon learning that sex was required) and did not offer the job to the police officer either even though she accepted these terms. The appellant is accused of (1) attempting to procure female persons to become prostitutes and (2) attempting to procure female persons to have illicit intercourse with another person.

Issue and holding: How is mere preparation different from actus reus? AR = decisive act that goes beyond mere preparation.

Reasoning: An act of preparation that is too remote to the actual offence would not constitute actus reus.

The distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence. However, the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished must be considered.

Two propositions to determine mens rea: (1) The actus reus must be more than mere preparation to commit a crime. (2) When the preparation to commit a crime is complete and ended, the next

step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime.

An attempt can be described as going beyond mere preparation (even though the full offence is not realised).

Relative proximity may give an act that resembles mere preparation the quality of attempt. Elements to consider: time, location.

In this case, "procure" = "to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged". The full offence of procuring a person to have illicit sexual intercourse with another person is not committed unless sexual intercourse actually takes place.

If the appellant had the necessary intent to induce or persuade the women to seek employment under such circumstances, the promise of large sums of money during the

interviews would constitute the actus reus of an attempt to procure. This would be an "important step" in the commission of the offence, a "decisive

act" in procuring. The only remaining step towards the completion of the offence would be the offer of employment.

A new trial is ordered because the trial judge did not make a finding as to whether there was the necessary intent to procure.

Notes/Thoughts: The distinction between attempt and preparation is qualitative (relation between the nature and quality of the act and the nature of the completed offense) and pertains to the relative proximity of the act.

United States of America v. Dynar [1997] 2 S.C.R. 462

USA v Dynar

Facts: D is framed by the FBI agents in Nevada. They asked him whether he would be willing to launder large sums of money from the States; he said yes; the FBI recorded him and then arrested. He was accused of laundering money + conspiracy to launder money. Under the Extradition Act, the US sent him to Canada after Canada rejected D’s complaint about the lack of disclosure of the Canadian involvement.

Issue and holding: 1) would D’s conduct amount to an offense under canadian law, had it happened in Canada? YES (2) Is D’s right to a fair hearing violated by not disclosing Canadian officials’ involvement? NO

Reasoning: While conversion of monies that are believed to be part of the crime (but are not in reality) is not an offense in Canada, the steps D took toward realization of his plan amount to a criminal attempt (s.24(1) of the Criminal Code) and conspiracy in Canada.Attempt: Only imaginary crimes fall outside the scope of s.24(1) but not the factually impossible ones (which is precisely D’s offense).

For money laundering (ML) offenses, the mens rea = belief. The fact that there were no attendant circumstances and that money was

fake/inexistent doesn’t matter for an attempt.Conspiracy (C): the question is whether there is a prima facie case sufficient for his committal for trial for the same conduct in Canada. The elements of conspiracy are as follows:

1. Intention to agree2. Completion of an agreement3. Common design to do something unlawful C = more “ preliminary” than attempt since it is complete before any acts are

taken; it’s a crime of intention

Therefore, impossibility is not a defense (NOTE: legal impossibility = person thinks that they are committing a crime while the act is legal - defense for an attempt; factual impossibility = physically impossible to accomplish - NOT a defense! )

Distinction only relevant in case of “imaginary crimes”Dissent: it is not enough to have attempted to do something that is not even in the Criminal Code to be convicted for something criminal. Thus, there can be no mens rea (the accused can't "know"), which means that he can't have attempted it. Moreover, the only thing he did attempt was what the FBI provided (it's an imaginary crime). As for the conspiracy offense, it can be found.

(2) Principles of fundamental justice do not entitle the fugitive to the highest level of disclosure. Adequate disclosure of the materials on which the officials relied to establish a prima facie case against him was provided. Hence, no additional disclosure is required --> no Charter issue.

Notes/Thoughts: When one takes positive steps toward realization of crime, unless the crime is imaginary, aka legally impossible, they are liable for attempt of crime. Conspiracy is a crime of intention that is complete BEFORE any acts are taken. Factual impossibislity is not a defense.

Fletcher, George P. Rethinking Criminal Law (Oxford University Press, 2000), pp. 138-139

Attempts have to be distinguished from preparation and impossibility.Objectivist theory:What they have in common is whether the act of attempting is a distinct element of the crime of attempting (e.g. death - homicide) whose criteria are established a priori.

tends to favour the minimalist approach More sympathetic to claims of impossibility as a bar to liability Assesses conduct that does not presuppose a prior determination of the actor’s intent.

Subjectivist theory: It verifies the firmness of intent. tends to favour the maximalist approach Reject the relevance of impossibility

DATE: March 21, 2017

TOPIC: Voluntariness: intoxication, automatism, duress, and necessity

NOTES:

Voluntariness, is an implicit requirement to all crimes, even those that are not mens rea offences. A crime with the right actus reus can be involuntary due to illness of the mind, duress or necessity. Often, however, defences are limited by policy concerns and foreseeability.

Law draws a distinction between:Conscious/unconsciousPhysiological/psychologicalInternal/external

Defences:- Duress: Cannot invoke if taking part in criminal activity

The test is both subjective and objective.- Necessity: If it was foreseeable that the situation would come up, then the defense cannot

be invoked. - Automatism: have no awareness of the act, no control. Includes illness of the mind,

Non-disorder automatism and disease of the mind.- Intoxication: normally not a defense, except if someone else intoxicates you.

Burden of proof: - The accused has to raise the defense and show some evidence, a foundation for the

claim. Does not have to prove it positively.- The onus is on the Crown to show beyond reasonable doubt that it was not the

case, that the act was voluntary.

READINGS: Perka v. The Queen , [1984] 2 S.C.R. 232 (extracts)

Keyword: Necessity DefenseFacts:A are drug smugglers. Going from Colombia to Alaska, in intl waters.Problems with the ship intensify throughout the voyage. Storm and problems with the ship = take refuge in No Name Bay in Vancouver.= Perka and Nelson arrested and charged with importing cannabis into Canada and with possession for the purpose of trafficking,Appellants claim that they had never intended to traffick, nor bring ashore, any cannabis - plead "defense of necessity" (due to the ships condition, they had to come ashore)

Issue: Should the appellants who embarked on an illegal venture be now heard to plead necessity when it was the venture which eventually gave rise to that necessity?Held: new trial ordered, the trial judge erred in his application of the law to the jury. Reasoning:Necessity defense: Historically: "From earliest times it has been maintained that in some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law. " (Aristotle, Hobbes, Jurisprudence)

no Law can oblige a man to abandon his own preservation (Hobbes)Defense of necessity: recognized in USA, in England it has succeeded at times and been rejected in others.

Conceptually: it is an "elusive concept"2 notions:

avoidance of greater harm or the pursuit of some greater good. (utilitarian, a justification and thus noncriminal)difficulty of compliance with law in emergencies (humanitarian, an excuse and thus criminal but not punished)

The judge in this case thinks that necessity defense makes more sense, and is less uncertain, if it is conceptualized as an excuse rather than a justification

Interaction with Voluntariness

Involuntary acts cannot be fairly punished.the act was wrong but it is excused because it was realistically unavoidable.Involuntary acts cannot be deterred so there's no point in punishin

Limitations: must be limited and controlled by the courts

acts for which the benefit of the excuse of necessity is sought are truly “involuntary” in the requisite sense.Requirement: situation be urgent and the peril be imminent

Illegality and Contributory Fault:

Crown, in this case, submits that this consists of an additional limitationIn this case:

"this was a voyage by a band of conspirators with a cargo of contraband having every intention of violating the law of nations from the outset"the appellants were actively engaged in the commission of a joint criminal venture when the circumstances arose

Generally, thedefense of necessity could be applied in cases where other illegal acts were being committed: "I fail to see the relevance of its illegal character to the question of whether the accused’s subsequent conduct in dealing with this emergent peril ought to be excused on the basis of necessity."

The question is whether the actions sought to be excused were truly “involuntary”If the accused could have, or did, contemplate the possbility of an emergency arising from his actions, then the response to the emergency was not involuntary per say.

Onus of proof

the Crown always bears the burden of proving a voluntary act.no onus of proof on the accused.

Conclusions:

the trial judge was correct in concluding that on the evidence before him he should instruct the jury with regard to necessity.hey were not engaged in conduct that was illegal under Canadian criminal law at the time the emergency arose, and that even if they were, that fact alone would not disentitle them to raise the defence.For necessity need evidence of "“urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible”

R v Dudley and Stephens (1884) 14 QBD 273 DC ( wikipedia entry ) Facts: Dudley and Stephens were shipwrecked along with two other men. On a lifeboat, without food or water - they hunted fish and turtles. When one of them, the cabin boy Richard Parker, fell into a coma, Dudley and Stephens decided to kill him for food (the boy was still technically alive - but they thought the meat would last better). The three remaining men ate the boy. After a highly publicized trial they were convicted of murder and sentenced to death with a recommendation for clemency; the sentence was commuted to six months in prison.

Issue: is "Custom at Sea" a defense for murder? More generally, does necessity justify murder?

Reasoning:The morality, ethics, and legality of the taking of another's life to increase one's own chances of survival is an important philosophical question. There had been thought experiments and some thought upon the question, but few cases:

Saint-Christopher's case: men cast away at sea drew straws to sacrifice one of them for the others. The man who got picked consented. There was a trial, where the men were pardoned - but no law report about it.

US v. Holmes: at sea again. Captain threw people over board the lifeboat into the icy water thinking that it was going to sink otherwise. Defense of necessity was accepted as a defense by the judge: "a case of necessity must exist, the slayer must be faultless, he must owe no duty to the victim". The jury found Holmes guilty.James Archer: Candidly admitted that he had killed others on a lifeboat in order to survive. Prosecution was started in Singapore but ultimately dropped after extended procedural wrangles as to whether Singapore or England was the most appropriate jurisdictionCriminal Law Commissioners: tried to put together laws of england.

Many had accepted the defense of necessity (1839-1846).1878/ 1879, declined to codify the defence as it was "better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstance of the particular case."

The case was long an complicated. Guilty in first instance through a special verdict allowing the judge to sentence rather than the jury. The first judge made a few mistakes. The second panel still found D & S guilty. Held: No common law authority to support the proposition that necessity was a defence to murder, either on the basis of legal precedent or the basis of ethics and morality. Dudley and Stephens were sentenced to the statutory death penalty with a recommendation for mercy. This judgement was later changed to manslaughter and less prison time. Ratio: necessity is not a defense to a charge of murder. This case established this for all of the CML. R. v. Ruzic , [2001] 1 S.C.R. 687, 2001 SCC 24 (only summary) Facts: Accused of trafficking heroin and having a fake passport. Admitted to these, but claimed that she should not be criminally liable because she was acting under duress. A man had threatened to hurt her mother if she did not bring heroin to Canada.The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for a person “who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed”. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms , raised the common law defence of duress and was acquitted.

Issue: Whether restricting the defence accords with Charter rights.Held: appeal dismissed.

Reasoning:

moral involuntariness does not negate the actus reus or mens rea of an offence but it should still be protected by section 7 of the Charter.Voluntariness is a principle of fundamental justice. Only free and controlled acts should be liable criminally.Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable: too restrictive in scope.Crown failed to justify it under section 1.CML defense of duress, without section 17: immediacy and presence are removed.Accused remains subject to a basic duty to adjust his or her conduct to the importance and nature of the threat.Threat must be to the personal integrity of the person and deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated.

General rule:Objective test, but jury still had to consider the temporal connection between the threat and the harm threatened,Burden of proof: raised by the accused and introduce some evidence. Crown must then show, beyond a reasonable doubt, that the accused did not act under duress.

R. v. Daviault , [1994] 3 S.C.R. 63 (only summary) Facts: Man sexually assaults an acquaintance who is paralyzed. She had drank some brandy. The accused had drank the rest of the 40 ounce bottle (he was a chronic alcoholic). He had no memory of drinking the brandy and denied the assault. Black out drunk = reality and normal functioning are distorted.

Issue: is the defence of self-induced intoxication resulting in a state equal to or akin to automatism or insanity available for general intent offences?Held: The strict application of the rule that the mens rea of a general intent offence cannot be negated by drunkenness offends both ss. 7 and 11 (d) of the Charter.

Reasoning/main points:Mental aspect of an offense is integral to crime. If removed = violation of fundemental justicemens rea of an intention to become drunk cannot establish the mens rea to commit the assaultVoluntariness must be established by the Crown (presumption of innocence)Violation of the Charter rights is not justified by section 1.Flexible approach: submit factual evidence of the intoxication and its effects of voluntariness to the juryMinimal mens rea required: drunk is not automatically a defense, would have to show that the intoxication led to automatism.

Same applies to actus reusDissent: held that the proposition that evidence of intoxication can provide a defence for offences of specific intent but not for offences of general intent. Sexual offense = general intent offense, therefore intoxication is no defense. Proof of the intent to become intoxicated is enough. Focus more on the public interest. R. v. Parks , [1992] 2 S.C.R. 871 (only summary) Facts: accused attacked parents in law and killed one of them. Claims that he was sleepwalking and not aware (defense of automatism). History of sleepwalking, previously had good relations with his in-laws.

Issue: whether sleepwalking should be classified as non-insane automatism or a disease of the mind, thereby leaving only the defence of insanity for the accused.Held: Only the defence of non-insane automatism is correct, acquittal upheld.

Reasoning/main points:In distinguishing between the two, judges must consider not only the evidence but also overarching policy considerations.Automatism: relates back to actus reus - if involuntary = acquittal, if involuntary because of disease of the mind = verdict of insanity

Procedure:Judge must determine if the question can go to the jury:

Defence: evidentiary burden rests on the accusedFor jury: the issue is one of fact: did the accused suffer from or experience the alleged condition at the relevant time?

Then, Crown must always prove that an accused has acted voluntarily, beyond a reasonable doubt.

It is up to the crown to raise and prove insanity, because on is always presumed sane in law.

"Disease of the mind": legal term. Medical and policy components.Concern for protection of the public (against recurrent danger): cannot rely only on medical evidence.In this case: On the evidence there is no likelihood of recurrent violent somnambulismBut, in different facts and different case might be found to be a disease of the mind.

The dissent suggests consideration of further measures against the accused or an order to keep the peace (monitoring, etc).

Hart, H L A. Punishment and Responsibility (1968) ( chapter on Acts of Will and Responsibility )

The general doctrine: conduct in criminal liability must be voluntary and not involuntary. More fundemental than mens rea.Voluntariness can be required even in offenses that dont require mens rea.

Problems:No clear definition in legal doctrine of voluntarinessDoubt whether the necessity of this doctrine is accepted by the courts.

Mistakes/accidents: no foresight and/or knowledge so no mens reaInvoluntary: almost like there was no "act" but just "movement", no minimum link between mind and body.

Hill v Baxter: unconscious driver runs a red and crashes. No recollection.link between mind and body is required even when responsibility is strict or absolute. Not a mens rea offense but still need voluntariness.Defence: must be a sudden loss of control, unexpected and unpredictable.Act…must be a voluntary expression of the accused's will

The Meaning of the General DoctrineWhat is will: The criminal law relies on 18th c definition from austin : act = muscular contraction + psychological cause (volition/desire)

Minimum requirement of link between mind and body in all offenses.examples in cases (of what it is not),

Consicous (physical compulsion, disease, impulse)Unconscious (sleep, drunk, unconsious, automatism)

Problems:

Voluntary/involuntary doesn't give criteria for omissions (even though can be applied to them by legal doctrine)Dividing up action: desire, act, consequence. People don't think of acts that way. Desire for action not muscular contraction. And often we dont think at all, we just act.

The General Doctrine Reconstructed: (unconscious movements involuntary movements, and involuntary omissions)Involuntary: movements that occured even though they were not appropriate (required) for the action that the agent believed himself to be doing.No link to the agent's plan of action. Omissions: must be dealt with separately through the language of inability (rather than of desire) The General Doctrine and the Courts

Not always applied consitently or in concordance with the reconstruction proposed.

Often, a defense of involuntary action is not required, because the mens rea is not reached anyway (lack of knowledge and foresight is enough to exclude liability)Strict liability offenses: Courts consider the language of the legislation at bar rather than use the language of volition.Whether the action falls within the language of the law, rather than if it was a willed act.General doctrine is understood but not expressly applied.Perhaps social policy considerations explain the distinctions made btwn voluntary and not.

Knowledge of the possibility of involuntary action: (ex prone to falling asleep etc)How do we deal with that, or distinguish from unpredictable/unknown?Cannot just be a matter of languageGeneral doctrine would acquit both instancesAsk whether the exercise of reasonable care could have prevented the breach of the law - brings is a subjective form, between negligence and strick liability

DATE: March 29th, 2017 TOPIC: Sentencing and Clemency NOTES:

· Why does the judge have discretion in sentencing?o Sentencing is more subjective - parliament can't consider everything - so

need to leave some decisions to the judgeo Element of needing to delegate complicated issues

· May be more than one goal: restitution, rehabilitation etc.o Guilt is concerned with whether the offense was committed whereas

sentencing is more concerned with who you are· When it comes to sentencing - Return to the individual

o Judge: has the benefit of having more knowledge/resources on the individual

o So at moment of individualization - need more human connection Always a tension between taking into account individual

circumstances and being consistent Section 718

· What are the goals of sentencing:o Deterrenceo Denunciation of unlawful conduct

· Making the point that someone has done something wrongo Traditionally wasn't part of the criminal justice issue to take into account

minorities/ethnicities

· But there is mention of Aboriginal peopleso Provide reparation for the harm done to the victim

· Retributive element· Restorative justice limit

§ Relationship isn't really being restored - rather victim is being helped to re-enter society

§ Real restorative element is vis-a-vis the victim rather than society as a whole…But maybe could say that this is not really helping the victim?

o Protecting society· Keeping the dangerous people locked away

· What are the principles of sentencing:

o Proportionate to the crime committed - need it to reflect gravity of the crime

· When it is not proportionate - then it shows conflicting signals of what crimes are bad

· So proportionality has to do with the actual offenseo Need to take into consideration the specific circumstances of the persono Need to have consistency

Principle of proportionality

· Proportionality isn't between the physical aspects of the crime but rather the moral disapprobation of the crime to society

Tension between goals of sentencing and the principles of sentencing

· Also may have some tensions between goals - because some are more retributive v. restorative

· Principle of proportionality is not in tension with denouncing crimes Mitigating/aggravating circumstances

· Reflect proportionality to the behaviour of the person rather than the crimeo If there is an element of discriminationo If the victim is a vulnerable population, or a public official (police officer

etc.)o Also circumstances of abuse

Evidentiary issue: when it comes to mitigating/aggravating circumstances

· Aggravating: crown beyond a reasonable doubt· Mitigating: is on the defendant - on the balance of probabilities

In addition to these mitigating circumstances and aggravating circumstances - there is the baggage of the person:

· Family relationships· Age· History of convictions· Education

^how are these personal circumstances relevant?· These circumstances are relevant to the goal of rehabilitation· Maybe the idea of reparations - has the person shown remorse· Also protection - is this person dangerous

Gladue

· One of the main arguments: there is something unfair about treating offenders from a certain social group as entitled to a separate sentencing regimeo Argument brought up: why not for other groups as well?

· Arguments for:o There is a clear historical role Canada has played in affecting this role

· Rare recognition that not everyone is equal in deciding if they will be law abiding

· Accept the consequence of colonialism - how it has impacted propensity to commit crimes

· Important part of Gladue: cannot just state "I am Indigenous" - need to show subjectively how the colonial legacy has impacted you

To be treated equally when you are the same but to be treated differently when you are in fact different

Proportion of IP has increased even with Gladue Need to take into account legacy and adaptive sentencing

READINGS Workplace Criminal Negligence Results in Lengthy Prison Sentence(Blog by J. Bruce McMeekin Law) Applicable sections from the Criminal Code: Duty of persons directing work 217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

· (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

R c Kazenelson is the first case on which an individual has been sentenced for the offences of criminal negligence causing death and bodily harm under s. 271.1 of the Criminal Code. Facts:

· The accused was convicted for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm.

· Victims had been working on an apparatus called a swing stage used to fix balconies on a 18 storey apartment in Torontoo Accused was the project manager - he had been trained to train otherso All workers are required to wear a "fall arrest" to save them if the swing

stage were to collapseo On Christmas Eve the swing stage collapsed, four died, one suffered

injuries and two· None of the workers had been wearing the fall arrest

· The accused had realized this and informed the foreman - but the foreman told him not to worryo There was pressure to finish the job - so the accused did not overrule the

foreman and delay lowering the swing stage until after all had been strapped into the fall arrests

o The accused made a choice to put [the employer’s] interests ahead of his duty to protect the safety of the workers under his authority, four men died and a fifth suffered grievous harm.

Sentencing:

· Accused was found to be of good character and had no criminal recordo The Crown submitted that imprisonment should range between 4-5 yearso The Accused submitted 1-2 years

· Court sentenced accused to 3.5 years· Counsel for the accused argued according to s. 718.2(b) the accused should be

sentenced similarly to sentences imposed on similar offenders under the provincial legislation (occupational health and safety) - which had a shorter period of imprisonment.o The Court rejected this - found principle of parity codified s.718.2(b) is not

engaged by penalties imposed for breaches of a provincial statute

· Criminal law requires a different emphasis in sentencing in comparison to regulatory offences wherein the primary objectives are general and specific deterrence

· These are only two of the factors applicable in the criminal domain, along with:o Denunciation, rehabilitation, reparations and promoting responsibilityo For these reasons - the criminal sentence is longer

· Sentences must be proportionate to the gravity of the offences and the degree of responsibility of the offender. o In this case the accused advertence was a seriously aggravating

circumstance in relation to moral blameworthiness

Editorial: Race and Sentencing The Criminal Law Quarterly: Editorial: Race and Sentencing May 2003 Applicable section from the Criminal Code: Other sentencing principles718.2 A court that imposes a sentence shall also take into consideration the following principles:

· (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The Ontario Court of Appeal has received a lot of hostile media following its decision in R. v. Borde

· The court ruled that trial judges can in appropriate cases take into account systemic background factors when sentencing African Canadian offenders

This article argues: the media criticism is based on a misunderstanding of Canadian law with regard to equality and sentencing Ontario Court of Appeal said: principles in s. 718.2(e) and the SCC's decision in R v Gladue can be applied to black offenders

· These principles speak of the need for restraint in the use of imprisonment for all offenders, with particular attention to be paid to Aboriginal offenders.

· They are designed to remedy Canada's high rate of incarceration and the dramatic overrepresentation of Aboriginal people in Canada's prisons

Rosenberg J.A: the above principles are "sufficiently broad and flexible to engage a sentencing court in appropriate cases to consider both the systemic and

background factors that may play a role in the commission of the offence and values of the community from which the offender come"

· No across the board race discount in sentencing is contemplated In Borde

· Offender was 18, had never known his father and had been abandoned by his mothero He grew up in and out of foster homeso Has drinking, employment and school problems

· The Court held his personal circumstances can be considered· Court held that given the seriousness of Bodre's violent offences with a loaded

handgun the evidence of systemic racism could not make a differenceo The Court of Appeal reduced his sentence given his age

A subsequent decision applied Borde

· The Court took a holistic approach that considered the background, gender and family responsibilities of two African Canadian single mothers who acted as drug couriers

The media's critique is that the decisions undermined equality and individual responsibility

· The operative model of equality is that each offender should be treated the same

· BUT from the mid-80s - Canadian law has recognized: treating people who face different challenges in the same fashion will compound pre-existing disadvantage and not advance substantive equalityo S.718.2(b): only similar offenders who commit similar offences in similar

circumstances should be treated the same. Media also critiques that there is an inconsistency between recent concerns about racial profiling and these decisions:

· BUT there is a difference between using race as a crude proxy for criminality and heightened police investigation and considering mitigating background and systemic factors related to race in sentencing

The argument that the decisions undermine principles of individual responsibility misunderstands Canadian sentencing law:

· Sentencing is used for instrumental goals such as deterrence of crime· The instrumental goal of limiting Aboriginal or African Canadian or other

forms of overrepresentation in our prisons is a worthy one for sentencing judges to try to achieve.o In the US gross over incarceration of African Americans has unhealthy

effects on individual communities and broader society

Our understanding of moral responsibility is richer than the simple question of whether the offender committed the crime with the appropriate level of fault

· We should be concerned more with achieving restraint in the use of imprisonment than with ensuring logical consistency in the distribution of punishment

The media's reactions to these cases are not a trivial matter.

· Media hostility was an important factor in the initial decision to exclude such a section from the new Youth Criminal Justice Act.

· This glaring omission was only remedied at the last minute Need to read Gladue and Borde in good faith Module 1: General Sentencing Principles in Canada Fundamental Rule: assumption everyone is presumed innocent until proven guilty

· Court can only accept a guilty plea if the facts of the offense as set out in the statute are found (section 606 of the CC)

Deciding on a Sentence:

· If a person has been found ‘guilty,’ the Crown and Defence make submissions as to what an appropriate sentence ought be, considering the facts as found by the court and the circumstances of the convicted person so as to give a ‘fit’ sentence.

· The Judge has much discretion; however, it is not full and free discretion.o Some offences have fixed fines and sentences, some minimum and

maximum limits from within the Criminal Code or other laws.· Sentencing options are not only found in the Criminal Code of Canada, but

also:o Regulatory statuteso ‘like cases’

Sentencing Hearing:

· A lot of time is usually required to prepare to sentence submissions· But often submissions are done immediately after a finding of guilt

o This reality challenges the Aboriginal Justice Worker with limited resources and inadequate prep time

Additional Facts for Sentence Purposes

· The usual rules of evidence do not apply in submissions as to sentencingo The onus rests with the party relying upon the alleged facts on a balance

of probabilities unless the Crown is alleging an aggravating factor, in which case the onus is beyond a reasonable doubt

· Gladue factors come from many different sources:o You may interview other parties not before the court - while that

information may be hearsay evidence usually not be admitted, it is often admitted in sentencing submissions.

o This is true also with victim impact statements and any statements made to the court by the ‘convicted’ party.

Purpose and Principles of Sentencing

· Section 718 sets out the purpose of sentencing:o 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.

Other sentencing Principles:· 718.2 has additional sentencing principles which the court must take into

consideration. It is this part of the Code which also contains the section which grounds the Gladue Principles

What about Aboriginal Offenders?

· Section 718.2(e) of the code states that all available sanctions - other than imprisonment that are "reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.”

· Judicial Noticeo In Gladue the SCC ruled that as a matter of judicial notice Aboriginal

peoples have a long disadvantage in Canadian societyo Purpose of s 718.2(e) is to utilize restorative justice principles in

accordance with Aboriginal traditions Considerations in Sentence:

· When considering what is a just sentence the court is concerned with (a) who the person is and (b) what the circumstances surrounding the offence were

· Considerations include:o When and where the person was born?

o What is their marital status?o Does the spouse have a job and if so, what and how much do they make?o Does the person have any children?o Do the children live with them?o What is the type of relationship with their immediate and extended family -

good, isolated, etc.?o Does the person have any disabilities that affect their day-to-day life?

· Information can span:o The persono Education levelo Employmento Previous criminal recordo Supplementary (is the person Aboriginal, did the wish to apologize tot eh

victims, etc)

Module 2: Aboriginal Sentencing Considerations The tasks of Aboriginal Justice Workers is to assist the court in sentencing matter:

· They cannot tell the court what the sentence should be· Rather give realistic options

Why does the Criminal Code treat Aboriginal people uniquely:

· Aboriginal people are overrepresented in Canadian prisons· Aboriginals make up 23% of inmates in Canada, yet are only 4% of the

Canadian Population. · This is an increase of 40% in the number of aboriginals detained in Canada’s

federal prisons over the previous ten years Section 718.2(e): must take into account the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts

· Background Factors include: low incomes, high unemployment, lack of opportunities, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation

· Systemic Factors: widespread discrimination both inside and outside penal institutions

Trial judge should also consider types of sentencing procedures and sanctions which may be appropriate because of Aboriginal heritage or connection:

· Traditional sentencing ideals of deterrence , separation and denunciation do not accord with the understanding of sentencing held by Aboriginal offender and their community.

· Most traditional Aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. o Ex. Circle sentencing

Additional Factors Relevant to Aboriginal Sentencing Considerations:

· Court is directed to consider historic trauma and systemic impact on the offender

· Gladue applies to all Aboriginal people, including those off reserve, statute and non-status, and Metis and Inuit

R v Ipeelee (2012)

· This case reaffirmed and expanded upon principles first discussed 13 years earlier in the Gladue case:o Courts have, at times, been hesitant to take judicial notice of the

systemic and background factors affecting Aboriginal people in Canadian society

· To be clear, courts must take judicial notice of:§ the history of colonialism, displacement, and residential schools§ How history continues to translate into lower educational

attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.

§ ^These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Present Evidence to Prove Systemic Disadvantage?

· You do NOT have to present evidence of the systemic and other background factors affecting Aboriginal peopleo Judicial Notice is a legal doctrine: the court can accept various things as

fact without the need of a party to prove these facts by presenting evidence to the court

*The Judge is under no legal requirement to order a Gladue Report it is entirely at the Judge’s discretion Module 3: Galdue Sentencing Principles

As established in Module 2: Do not have to present evidence to any court to prove historical disadvantage by Aboriginal People, the courts take judicial notice of historical disadvantage. The historical and present-day trauma experiences of Aboriginal people is the key to why Aboriginal people are regarded different via s. 718(2)(e) Need to understand the way in which "colonialism" has created trauma to Aboriginal Peoples. Historical trauma occurs at an individual, family and community level:

· Loss of lifestyle· Loss of spirituality· Loss of connection with land· Loss of stability of the base family (especially true given the residential school

program) Impact of Historical Trauma

· Colonialism within its mechanisms has transferred intergenerationally cycles of traumao Historical trauma began at contact and started collective distresses-

distress which was perpetuated purposefully with the intent of destruction or genocide

o Individual level: historical trauma manifests itself in depression, anger, anxiety, guilt and symptoms or post-traumatic stress

o Family level: impaired communication, parenting dysfunctiono Community level: suffer from a breakdown of culture and values which

traditionally acted as check to balance behaviour Collective Distress:

· Addictions, Mental health problems, without mechanisms to treat, poverty, cultural shame, distrust of outsiders, high rates of alcoholism, crime, physical illness, and internalized racism.

Colonialism

· Has impacted trauma:o Racismo Loss of collective and individual identityo Inter-generational transmission of trauma and substance abuse

Disadvantaged Socio-economically are less likely to report crimes:

· If the only place a person has housing is on a Reserve, they are not likely to report a crime, as this may threaten their individual situation

· Additionally many mistrust the legal system:o Aboriginal people find testifying in court traumatic

Who is the Aboriginal Offender:

· Key in the Gladue Principles is that the Court needs to understand who the Aboriginal Offender is "as a person,” and what external barriers they have developed under.

· Life domains to be considered:o Physical health, mental health, work/education, leisure activities,

relationship with a significant other, family and social relationships, financial situation, independence/autonomy and an offenders religious/ spiritual expression.

The key to assisting the Court in determining a ‘restorative justice’ sentence is uncovering for them what it means to live in an Aboriginal community, possibly live a traditional lifestyle, and understand the social and economic realities of it. Community Influences:

· Not just reserves, but need to also consider the impact of community in urban settings

· Since Court's have limited opportunities to visit an Aboriginal community, it is the Aboriginal Justice Worker's job to point that picture for them:o To do this:

· Template of relevant information about the community§ This will help remind the Judge about the community the offender

resides in and is helpful when new or different Judges circuit to that court

· Keep inventory of programs or services in the community· Community background and program availability is only relevant if

you can show the impact it can have on the behaviour of the person appearing before court

Multiple Sentencing Considerations

· Multiple sentencing considerations, areas and outcomes are impacted by the offender’s family and social functioning. o Family functioning: the way in which family members interact, react to

and treat other members. Communication styles, traditions, clear roles and boundaries, and the degree of fusion, flexibility, adoption and resilience. Need to keep in mind family stress:

· Having a family member imprisoned· Poverty· Substance misuse· Domestic violence· Mental health problems

o Social Functioning: The ability of the individual to interact in the normal or usual way in society. CAUTION, most definitions of social functioning are based on the perspective of the dominant – non-aboriginal – culture.

· Aboriginal Justice Workers will need to present information to the court regarding the aboriginal worldview as to functioning within aboriginal culture.

· Social skills to consider:§ Self-reliance or independence§ Financial management (ability to manage finances and pay bills)§ Social and community skills§ Employability§ Friendship and intimacy§ Parenting§ Life planning

· ^It is important to remember that the indicators of social functioning can be very different for Aboriginal people and the community they live in

Substance Misuse and Victimization

· Major risk factors for substance, especially for adolescents, include:o victimization experiences, including physical or sexual assaulto familial substance use, where family members and members of the

offenders community creates a major risk of substance misuse.o posttraumatic reactions also create an increased risk of marijuana and

hard drug misuse/dependence.o Substance misuse is identified as a coping mechanism for these risk

factors.o Correctional Services of Canada reports that over 90% of Aboriginal men

in federal custody require substance abuse treatment. Employment and Employability

· 28% of Aboriginal people rely on social assistance for at least part of the year, compared to 8% of the non-aboriginal population.

· The aboriginal unemployment rate is over 19%, twice the national average, well this rate increase to over 30% in First Nation communities.

Key Aspect of Employment

· The Court often sees employment as the answer to ‘how does this offender meet his/her financial obligations to his family, the community?

· But important to as:o Does a lack of achievement in education or employment reflect the

individuals level of motivation or the norm within that particular community?

o Are their external factors that impact the individuals productivity; lack of employment in the First Nation, difficulties in the relationship with local non-aboriginal employers, no transportation to worksites etc…?

o Has the accused other means of providing for themselves and their dependents; hunting, p/t work, cash jobs?

Mental and Physical Health

· Aboriginal People in Canada continue to have:o higher death rates for respiratory, circulatory, gastrointestinal and

infectious disease, as well as parasitic infection.o diabetes is one of the most serious chronic conditionso are much more likely than the general population to die from injuries,

poisoning or suicide.· The Courts will need to understand the risk factors that compromise emotional

and mental health for that offender. Cultural Factors

· Knowing your culture and the cultural practices of your people helps to retain a sense of belonging or connectivity even though you may be in the minority

· On the absence of cultural connectivity, other cultures can be adopted to fill this void. o This is often used in the recruitment practices of Aboriginal street gangs,

whereby the gang promote their own, often destructive, gang culture. Summary: The purpose of the Gladue Principles Submissions is to advise the Court as to:

· Who the Aboriginal Offender before the Court is "as a person,” and· Any relevant individualized information with regard to how the person now

before the court has been affected by intergenerational and systemic effects of colonialism, displacement, residential schools, poverty, unemployment and substance misuse and such.

· Any other systemic circumstances and/or barriers (Ipeelee) which contributed to this Offender now being in conflict with the law and before the court, and

· What realistic sentencing approaches properly consider the goals of Gladue/Ipeelee and section 718(2)(e), of note:o proportionality as to the gravity of the offence ando the harm to the victim(s)/community ando the degree of moral blameworthiness accepted by the offender.

KEY NOTE:

· As noted in Ipeelee, the systemic discrimination and background in the Gladue Report are not about saying WHY the offender did the crime but about what is a fit restorative justice sentence.

When making a Gladue Report:

· Key is you want to make the information ‘accessible’ by the Court and easy to use and understand.

· Important to ensure the information you are providing is relevant to the life of the offender.o Speaking about intergenerational trauma, Residential School or systemic

oppression is only relevant if it is clear that these factors have impacted the life of the accused.

· When interviewing: make sure the person is prepared and recognize the topics may invoke strong emotional reactions. Be prepared to offer support and coping strategieso Be sure to protect information . If information could be used for retaliation

and cannot be protected, do not use it.· When recommending sentencing: keep in mind the community- are there

adequate services that can help with treatment?· Alternatives to incarceration:

o Tell the court what strategies there are to manage the Offenders behaviours

o Other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crim

· Recommendation is defined as the act of saying that someone or something is good and deserves to be chosen; a suggestion about what should be done

· Option is defined as something that may be chosen as in an alternative course of action

DATE: March 31, 2017TOPIC: Sexual assault: consent, "rape shield", and mistake

NOTES: - Canadian society still rife with sexist stereotypes, so it follows that the

criminal justice system is not free of them either. Indeed, it has historically reinforced them

- Feminists have a fundamental role in challenging this culture, including how it’s maintained by CJ system. The idea being that CJ system does have a role to play, but its attentions have to be redirected.

- Procedural and substantive elements to this. What kind of evidence do you allow in the court? Is there some evidence that won’t be allowed as it has no probative value (ex. Reputation of the victim, what they were wearing, past sexual conduct, etc.). Substantive issues quite complex. To what extent do

we accept a defence of mistake of fact, and on what evidentiary basis. Institutional issues → support for victims of sexual assault, such as challenging defence counsel’s tendency to undermine victim’s credibility.

- Recasting of who the perpetrator is (it’s usually an acquaintance, not a stranger)

- What’s being changed in the laws in Canada to try to fight against historical injustices? Rape shield laws, recognizing marital rape, accepting “willful blindness” as mens rea for sexual assault, etc. Attempt to bring in a new understanding of sexual assault within CJ system forces it to change fundamentally. A whole new conversation going on: how far are we willing to go in upholding the otherwise cardinal principle of liberal CJ systems, that we should do everything to ensure innocent aren’t convicted? Defence of the accused is extremely important, but it’s not the only important Charter principle.

- Several issues: what is consent, really? It’s required, but how do you deduce it?

- Lack of consent vs. perception of lack of consent. Determining the actus reus is only based on what was going on in the victim’s mind at the time...it’s of little importance what the perpetrator thought. Simply because the perpetrator claims to believe there was consent doesn’t make it true for determining actus reus. You don’t commit sexual assault by negligence.

- Defence: you have to create a reasonable doubt about the possibility that she was consenting.

- Criminal code s. 273.1 gives definitions of consent

READINGS:

R. v. Seaboyer

R v. Seaboyer

Facts:Seaboyer was charged with sexual assault of a woman with whom he had been drinking in a bar. The judge at the preliminary inquiry refused to allow the accused to cross-examine the complainant on her sexual conduct on other occasions. The appellant contended that he should have been permitted to cross-examine as to other acts of sexual intercourse which may have caused bruises and other aspects of the complainant's condition which the Crown had put in evidence. Such evidence might arguably be relevant to consent since it might provide other explanations for the physical evidence tendered by the Crown in support of the use of force against the complainant.

Issue and holding:Do the rape shield provisions in the Criminal Code (ss. 276 and 277) infringe the principles of fundamental justice or the right to a fair trial found in the Charter?

If so, can the infringement be justified under s. 1?- Appeals dismissed, but s. 276 is found to be inconsistent with s. 7 and s. 11

of Charter, not justified by s. 1. However, s. 277 is not inconsistent with Charter.

Reasoning:

Lamer (majority):- Being able to gather evidence is crucial part of the search for truth in a

trial. Provisions 276 + 277 have capacity to deprive the accused of liberty, and therefore violate fundamental principles of justice if they exclude evidence

- Purpose of 276 is to abolish sexist use of past sexual conduct evidence, but it overshoots the mark because it can render essential evidence inadmissible, and risk conviction of an innocent person

- 276 not saved under s. 1 analysis as it fails proportionality test because “rights infringed are not proportionate to the pressing objective” and is not minimally impairing

- Striking down 276 doesn’t mean that sexual conduct evidence is now allowed. Rather, the rule must adapt to present reality, and courts will decide when such evidence is legitimate or illegitimate.

- There are some guiding principles, which judges will use to decide on case by case basis when to admit or exclude such evidence

L'Heureux-Dubé (dissent):- Sexual assault is unlike any other crime. Part of the reason it is so under-

reported and convictions are so few is due to pernicious sexist myths and stereotypes.

- The decision of when sexual conduct evidence is relevant is likely to be influenced by these stereotypes and can lead to illegitimate inferences and distortion of truth

- The evidence excluded by s. 276 is simply irrelevant because it is based upon discriminatory beliefs about women and sexual assault, but it leaves room for legitimate evidence to be introduced.

- Because it excludes only irrelevant or prejudicial evidence, s. 276 passes constitutional muster. Even if it were found unconstitutional in effect, it would be saved by s. 1 because encouraging women to report sexual assault and eliminating sexist stereotypes are values crucial to a free and democratic society. Passes proportionality test.

Notes/Thoughts:Need to balance right to a fair trial and protecting innocent from conviction with the systemic discrimination against women in sexual assault trials.

R. v . Ewanchuk

R v. Ewanchuk

Facts: Ewanchuk lures a 17 year old girl (the complainant) to his van for a job

interview, after which he invites her to a trailer behind the van to “show her his work”. He makes repeated sexual advances, which she declines. He persists until out of fear, she stops saying no. He claims this is “implied consent” and uses it as a defence. At trial and at appeal, he his acquitted on this grounds.

Issue and holding: Whether the trial judge erred in his understanding of consent in sexual assault and whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.

- Appeal allowed, Ewanchuk convicted of sexual assault

Reasoning:Lamer:

- The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent.

- Consent is subjective, only determined by the complainant. It doesn’t matter what the accused’s perception of her state of mind was for actus reus analysis

- If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. No defence of implied consent to sexual assault exists in Canadian law. Here, the trial judge accepted the complainant’s testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as “implied consent”. This conclusion was an error.

- The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched

- The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused.

- If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven. Here, the accused knew that the complainant was not consenting before each encounter.

- If the trial judge hadn’t erred, the accused would have been convicted since he has no defence against sexual assault. So, SCC uses its discretion to convict him without a new trial.

L’Heureux-Dubé- Canada has signed on to human rights agreements to end violence against women, and

the Charter also protects women’s rights- This case isn’t about consent, as none was ever given. Rather, it’s about stereotypes

and myths of female sexuality and propriety- The trial judge knew the complainant allowed the assault to happen out of fear for her

safety, but gave no legal weight to her fear- The question of implied consent should not have arisen. The trial judge’s conclusion

that the complainant implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he found the complainant credible, and accepted her evidence that she said “no” on three occasions and was afraid. This error does not derive from the findings of fact but from mythical assumptions. It denies women’s sexual autonomy and implies that women are in a state of constant consent to sexual activity.

- there was no evidence that would give an air of reality to a defence of honest but mistaken belief in consent for any of the sexual activity which took place

Notes/Thoughts: L’Heureux-Dubé and McClung got into a public feud over this case because in the appeal court he made the argument that the complainant didn’t enter the trailer in a “bonnet and crinolines,” implying that her behaviour and outfit were so sexually enticing that Ewanchuk couldn’t help himself. Gross!!

Arab Man Who Posed as Jew to Seduce Woman Convicted of Rape

- An Arab man in Jerusalem has consensual sex with a woman who believed him to be a Jewish bachelor looking for a serious relationship

- When she later finds out he is not a Jew, but an Arab, she files charges for rape and indecent assault

- Man pleads guilty as part of plea bargain, is convicted of rape by deception- Court says the consent was vitiated because it was obtained by deception

and false pretenses. Also that they have a public interest duty to protect people from being manipulated

- Note: very weird racist implications here, yikes!

Woman who pretended to be a man to have sex with female friend wins challenge against conviction

- 26 year old woman accused of pretending to be a man in order to trick her female friend into having sex using a prosthetic penis was sentenced to 8 years in jail on sexual assault charges

- Complainant says she wore a blindfold at all times during their 2 year relationship, during sex as well as during activities like sunbathing and watching films together.

- Discovers she is a woman when the blindfold comes off one day, files sexual assault complaint.

- Accused says she’s innocent, maintains that the complainant knew all along who she was, and that they were consensually roleplaying. She appeals verdict.

- Appeal allowed, conviction quashed.

Stanford Encyclopedia of Philosophy, Feminist Perspectives on Rape

1. Underlying themes: - Breaking the silence around sexual assault. - Stats show that rape is very common, with majority committed by people

known to the victim (usually a spouse). - Conviction rates extremely low (94-98% of rapists go free). Reporting also

very low (16-36%)- Continuum from liberal to radical views → liberal: rape as a gender-neutral

crime that harms individuals vs. radical: rape as part of patriarchy; harms women as a group, linked to other systems of domination (such as racism and colonialism)

2. Criteria: what counts?- Feminists want rape to be taken seriously and rapists to be held accountable- Have fought to broaden the scope of what counts as rape, challenging old

ideas. Ex. marital rape, because it used to be considered impossible for a husband to rape a wife, or the force requirement.

2.1 Consent- Assumption is that rape exists where consent is lacking, so what counts as

consent? Can be understood as either attitudinal (mental state of affirmation or willingness) or performative (utterance or action). Feminists prefer the performative concept, because it is active and ongoing, rather than relying on the implied idea that a woman’s default state is implied sexual consent, and therefore she has to physically fight back in order for non-consent to be taken seriously. One problem with performative consent is that it can be coerced (ex. She can be threatened - even non-violently - by her rapist into saying “yes”, but it’s not meaningful consent)

2.2 Mens Rea- What counts as mens rea in sexual assault cases is contentious- Conservative position = mens rea only if man believes woman is not

consenting; more moderate position = mens rea if he believes unreasonably that she is consenting

- Some feminists believe rape should be a strict liability offence, with no mens rea required

- “Reasonable woman standard” has opponents and proponents2.3 Force

- Some jurisdictions have dual requirement of force and nonconsent. Many feminists think this defines many rapes out of existence

- Feminists divided on question of how to structure rape law, though most common position is that force should be eliminated and rape defined as non-consensual sex.

2.4 Other approaches- No model: sex is consensual unless victim says “no”- Yes model: sex is non-consensual unless “yes” is explicitly given

- Negotiation model: ongoing and mutual- Convictions linked to society’s general willingness to believe women

3. The wrongs and harms of rape- Complex and multifarious

3.1 Harms to individual victims- One view: rape is a crime of violence, not sex, analogous to other violent

crimes. Not a crime of passion, but will to dominate.- Critique of this view: sex is an important component. Rape is not equivalent

to a slap in the face, for example. Can have particular consequences on a victim’s future sexuality, can be sexually motivated, etc.

- Violation of bodily and sexual autonomy one of rape’s central harms. Treats the victim as an object, not a person. “Sexually invasive dehumanization”

- Additional harms: can be other injuries, STI transmission, unwanted pregnancy, depression, PTSD, ongoing trauma of being disbelieved and having to keep seeing the rapist if he was an acquaintance/colleague/etc.

- Often sexual abuse is ongoing, not a single incident. Becomes part of life for some women.

3.2 Harms to women as a group- Rape is a gendered crime (91% victims female, 99% perpetrators male)- Re-enforces and normalizes group subordination of women to men; keeps

women fearful, preserves ideas re: male entitlement to women’s bodies, maintains stereotypes about male and female sexuality (men as aggressive/subject, women as passive/object)

- “Rape culture” = widespread acceptance of rape permissive messages in media and popular discourse

- Some theorists frame rape as a terrorism, targeting women as a class, causing women to act as “guilty pre-victims” at all times. Constant fear of rape makes women self-scrutinize their behaviour and dress because “bad girls” get raped and victim-blamed, enforcing sexist stereotypes about female sexual propriety. “Good girls” get husbands to protect them, who are then entitled to their sexuality. Women have to give up sexual autonomy for this conditional “protection” from the group that is both source of and saviour from danger.

- Distributive justice view: women as a class suffer disproportionately from the burden of rape, while men as a class bear collective responsibility for it. State has obligation to redistribute the fear/burden.

3.3 Rape and racism- Rape is a tool not only of patriarchy, but also of racism, colonialism,

nationalism, and other pernicious hierarchies. - Long history of white men raping women and girls of colour. In USA, slave

owners notoriously sexually exploited slaves, who were considered “unrapeable”.

- Stereotype of black men as rapists led to lynching, and the effects continue to have repercussions today.

- African American women less likely to disclose/report rape than white women because they don’t anticipate being protected/believed by the state

- White settlers routinely sexually assaulted Indigenous women, bringing patriarchy to relatively egalitarian cultures. Epidemic of sexual abuse in residential schools. Still, white men depicted as “saviours” of Indigenous women.

3.4 War rape and genocidal rape- Rape is universal in war. Serves several purposes: mass rape of female

civilians as “prize”, as strategic weapon of war to undermine enemy morale (symbolic rape of the whole community); enslavement of women and girls to provide sexual services to military

- Female military personnel often raped by own colleagues- When men can’t “protect” women in the community from rape, women’s

bodies become the vehicle for male expression of power over other men- Rape as a means to destroy a community. Forced impregnations colonizing

women’s bodies. Breaks up families, cultures, traditions, identities- war/genocidal rape designated as crime against humanity in 2001

4. Conclusion- Feminist theorizing about rape is ongoing, developing, growing more

intersectional, multidisciplinary and global

QUESTIONS:

How has feminist thought helped recharacterize rape?How might one explain low reporting of and conviction for rape? What features of the criminal justice system have traditionally reinforced this?How have rape laws been amended to fight sexist stereotypes?What is the difference between an attitudinal and performative approach to consent? In Canada, what is the actus reus of sexual assault? In Canada, what is the mens rea of sexual assault?Might evidence go both to demonstrating the actus reus and the mens rea?Evidence could prove both the absence of consent and the fact that you should have known there was no consent. Can one outwardly consent but inwardly not consent? No always means no, but yes also sometimes means no?Of course! Can one consent retrospectively? No.A doctor presents a friend who is not a doctor as an intern. The intern touches a patient sexually with her apparent consent. Has he committed sexual assault? Yes. What if he merely watches you? Court in 1950s said no. Unbeknownst to your partner, you pick holes in your condom. Have you committed sexual assault? Yes, according to SCC though this is somewhat contested, particularly by health activists because it can unduly stigmatize. .

You think there is a chance you might be HIV positive but are not sure. Have you committed sexual assault by neglecting reveal that doubt? You are HIV positive. Do you commit aggravated sexual assault if you fail to reveal your status? Yes. Same thing except you wear a condom? You encourage your partner to wear a condom?You have sexual relations with someone based on a fundamental mistake about their ethnicity/race/religion/gender, as a result of that person’s deliberate misrepresentation. Are you a victim of sexual assault? What is the standard for consent to sexual contact: (i) that the reasonable person would have consented in the circumstances (ii) that the victim consented in the circumstances**note: there are more that he said he would post online, but I haven’t been able to find them. I’ll add them if I ever succeed in finding them!**

DATE: April 5 2017 TOPIC: Remedies for Rights Violations and Evidence Exclusion Rules NOTES: [Please give a condensed and edited version of your class notes. It should be compact and succinct. We all have our own class notes, so please just put key points. This should be no longer than half a page.] READINGS: Vancouver (City) v Ward (2010)

Vancouver (City) v Ward (2010)

Facts: Ward, a Vancouver lawyer, was at a ceremony in the city on Aug 1 2002, where PM Chrétien was present. Vancouver Police Department got information someone was going to try and pie the PM, and mistakenly identified Ward as the would-be pie thrower. Against protest, Ward was detained, strip searched and left in a small cell for hours. His car was then impounded. The police later decided they had neither the evidence to charge Ward nor the grounds to get a search warrant for the car. Ward was released

Issue and holding: Can Ward bring an action for breach of his Charter rights against the City and others for his arrest, detention, strip search and car seizure?

The trial judge held that, although the police officers did not act in bad faith and

were not liable in tort for either incident, the strip search and car seizure violated Mr. Ward's right to be free from unreasonable search and seizure. The trial judge assessed damages under section 24(1) at $100 for the car seizure and $5,000 for the strip search. The B.C. Court of Appeal upheld the decision.

Reasoning: Recognizing that the authority on this issue is sparse, the Court comprehensively analyzed section 24(1) of the Charter and concluded that it allows for damages to be awarded for a Charter breach where it is appropriate and just to do so.

On that basis, the Court allowed damages for the strip search, but not for the car seizure.Court established a test to assess when it is appropriate/just to award damages.

1. The Charter breach must be proved.2. Claimant must provide a functional justification for damages.3. If the claimant succeeds in providing the functional justification, the evidentiary

burden then shifts to the Crown to show that there are countervailing factors against awarding damages.

4. The quantum of the damages must be assessed.o The more egregious the conduct, the higher the damages should be.o But also held that there must also be some recognition that the Court

is dealing in public funds, and a large damages award may not be in the public interest.

Notes/Thoughts: The Supreme Court confirmed that damages may be available to claimants who have suffered violations of their Charter rights.

How the wrongfully convicted are compensated for years later ( Stephanie Slifer, CBS News )

- In 21 U.S states, if you were incarcerated for a crime you didn’t commit, when you are finally exonerated/released, you are not guaranteed any form of compensation under the law if you served

- These people should be compensated because they can't just pick up where they left off; their lives were destroyed i.e. lost careers, jobs, families, the ability to build a career.

- The Innocence Projecet is a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system. They recommend:

o That all states implement wrongful conviction compensation statutes, and says each should offer a minimum of $50,000 for each year a person spends in prison.

o That states reimburse the defendant's attorney fees, make subsistence funds available immediately and offer a range of social services,

including mental health services, medical and dental care, and access to housing and education.

o That the wrongfully convicted are also given probation services (which they are currently not after proven innocent). These people need help with transition e.g. free healthcare, counseling

o That a person’s record be cleared of the wrongful conviction (currently still comes up if they apply for an apartment for example).

- 29 states have compensation statutes for the wrongfully convicted. Some impose problematic restrictions though:

o E.g several states require that the person did not "contribute to their own conviction" e.g. someone who falsely confessed or pleaded guilty to a crime they didn't commit could be prohibited from receiving compensation.

§ nearly 30% of all DNA exonerations recorded in the United States involve a person that either pleaded guilty or falsely confessed.

- In states with no compensation statutes, exonerates can have other options but both require wrongfully convicted person to endure yet another long legal and/or political battle:

(1) Pursue a civil rights lawsuit, which requires proof of official misconduct leading to a constitutional violation;

(2) Pursue a private compensation bill, in which a state legislature makes an exception for an individual

B.C. man sues after wrongful conviction leaves him behind bars for 27 years (Georgon Omand, Global and Mail 2015) Ivan Henry was mistakenly convicted in 1983 of 10 counts of sexual assault and spent 27 years in prison. There was clearly a flawed police investigation.

- Evidence that Crown lawyers had decided “the accused is so obvious” that if just one girl identified Mr. Henry, they would be able to link the remaining cases together against him

- Evidence that one of the victims had an inappropriate relationship with one of the policemen, sending letters to his personal address that she “didn’t want to let [him] down …to disappointed [him]”, which is why she identified Henry

- The positive identification came from a photo of a police lineup that showed Mr. Henry being held in a chokehold by officers, which Mr. Laxton described as “seriously flawed and unfair.”

- Much of the evidence in Henry’s defence was not disclosed to his counsel, including that sperm found on several of the complainants had a blood type that failed to meet Henry’sMr. Henry’s wrongful-conviction lawsuit names the federal government, the province and the City of Vancouver.

- Henry was initially prohibited from holding prosecutors liable for negligence following his acquittal but SCC overturned that decision in 2015

- Typically, in Canada, cases of wrongful imprisonment are settled out of court. This should provide interesting precedent Illegally Obtained Evidence: The Exclusionary Evidence Rule in Canada (Eileen Skinnider, International Centre for Criminal Law Reform and Criminal Justice Policy, 2005) Introduction: exclusion of illegally or improperly obtained evidence is a powerful remedy for the violation of constitutional rights

- Charter s24(2) allows evidence obtained in violation of an accused person’s Charter rights to be excluded from the proceedings if it is found that the admission of that evidence would bring the administration of justice into disrepute

- Seems to balance between the right to a fair trial and the interests of the community in convicting offenders, but it’s controversial rule

o Vindicates rule of law: exclusionary rule gives clear message to law enforcement officers that illegally methods of obtaining evidence will not be condoned

o Undermines rule of law: but some argue evidence be allowed to try to get at the truth notwithstanding how it was obtained, to ensure the guilty are imprisoned

Underlying Basis for a Remedy Provision: International law- Article 8 of the Universal Declaration of Human Rights underlines the

sweeping customary requirement to ensure enjoyment of rights: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution of by law”

- Art 2(3) of International Covenant on Civil and Political Rights (ICCPR) restricts right to an effective remedy at law to a redress only of the rights and freedoms recognized by the Covenant itself.

o State parties can choose their own method of implementationo Article 14 of the ICCPR also recognizes the right of access to courts.

- State reports seem to suggest this right is not often observed- Art 69 of the Rome Statute of the International Criminal Court provides ICC

may rule on evidence relevance/admissibilityo Evidence obtained by means violating Rome Statute or internationally

recognized human rights is not admissible if there is doubt of evidence reliability or if it would damage integrity of proceedings

o Making such decisions, ICC not bound by national laws of the State where evidence was collected

Drafting Canadian Charter- Before 1982 Canadian Charter, the common law took a relaxed approach to

illegally or improperly obtained evidence i.e. no rule of law or judicial discretion to exclude such evidence

o The general rule of admissibility was that all evidence that was relevant, probative and reliable would be admitted in court. This resulted in a bias favoring admissibility.

§ In other words, reliability was determinative. Now however, Charter has made the rights of the individual and the fairness and integrity of the judicial system paramount.

o Charter takes a middle ground between the past common law approach which had an inclusionary bias for reliable evidence no matter how it was obtained and the perceived American position of the next-to-automatic rule of exclusion

o Section 24(2) of the Charter: “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

§ If police violate your Charter rights to obtain evidence, you may have a remedy against them and the evidence may be inadmissible in a proceeding against you

§ On the other hand, despite having obtained the evidence in a manner violating the accused’s Charter rights, the evidence may be admissible if the court thinks admission would not bring the administration of justice into disrepute.

Theories behind exclusionary rule- Liberalism theory to explain s24(2)

o Sees individual and State as two opposing forces; constitution seen as preserving the autonomy of the individual, restricting powerful State

o Tension between the due process model (emphasizes individual rights protections) and the crime control model (emphasizes efficiency and truth-seeking process in the administration of justice)

§ In crime control model, there’s a bias towards inclusion as long as the evidence is considered reliable as this furthers truth-seeking function of justice system

§ Under due process model, exclusion of evidence is primary tool for protection of individual rights

· In Canada, despite being a balance, it’s weighed in favour of due process model

- SCC has given many purposes behind section 24(2) including…

o Providing compensation to victims of violation§ But some argue an alternative would be monetary compensation

b/c the compensation to accused is grossly disproportionate to the wrong

o Deterring constitutional violations§ should try to maximize deterrence, meaning that evidence should

only be excluded when the benefit of increased deterrence outweighs the cost of lost convictions.

§ Others argue that deterrence does not justify exclusion since the social costs of lost convictions is too high and that there are other methods to deter which does not involve excluding “reliable” evidence and the acquittal of “factually guilty people”

§ NB deterrence doesn’t work if rules are too complex for police to understand

o Avoiding judicial condonation of police misconduct§ Maintain integrity of the legal system. It’s about repute of

criminal justice system, rather than about repudiating police misconduct

Situation in Canada

- Only courts of competent jurisdiction have the authority to grant remedies under section 24 of the Charter (preliminary inquiry hearings and National Parole Boards are not)

- The defence bears the initial burden of presenting evidence and the burden of persuading the judge, on the civil standard of balance of probabilities that a violation of the accused’s Charter rights occurred.

- There must be temporal and tactical linkage between Charter violation and evidence sought to be excluded

o This could mean that evidence gathered from a lawful search warrant might be excluded if there was a sufficient temporal and tactical connection to a Charter violation such as a previous warrantless search

The Collins framework to analyze 24(2) and provide guidance to judges, suggesting they consider:

- Kind of evidence obtained- What Charter right was infringed- Was the charter violation serious or was it of a merely technical nature?- Was it deliberate, willful or flagrant- Was it inadvertent or committed in good faith- Did it occur in circumstances of urgency or necessity- Were there other investigatory techniques available- Would evidence have been obtained in any event- Is the offence serious

- Is the evidence essential to substantive charge- Are other remedies available?

à These factors can be grouped in a three-part approach to considering evidence under s.24(2)

1. factors that go to determining the effect on the fairness of the trial in admitting the evidence;

2. factors that go to establishing the seriousness of the Charter violation; and3. factors that go to determining the effects to the repute of the administration

of justice in admitting the evidence.à “if the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence generally should be excluded.” (SCC, R v Collins, 1987)

- Fair trial has been defined as one which satisfies the public interest in getting at the truth while preserving basic procedural fairness to the accused

- SCC found that the public’s interest in having reputable justice generally exceeds its interest in getting any particular piece of evidence

- SCC found that public perception is not the standard by which the court would judge its actions, but rather the ‘reasonable man’.

Post- Collins application - The ruling put an immediate brake on police abuses, but led to over-

analysis of evidence - General rule was that admission of ‘real’ evidence would rarely render

trial unfair, but self-incriminating evidence would - So focus become on ‘real’ vs ‘self-incriminating’ at the expense of other

considerations - With time this began to balance out - Subsequent rulings found that factors such as seized blood samples and

participation of the accused in lineups constituted self-incrimination - But evidence obtained in violation of right to counsel was inadvertent and

notHerbert – movement toward automatic exclusion

- In Herbert, SCC held that once it is determined that the admission of evidence would undermine fairness, there is no need to apply the rest of the Collins factors

- Herbert was arrested for robbery and informed of right to counsel - He refused to make a police statement after consulting counsel - He later made an inculpatory statement to an undercover officer placed

in his cell - Trial judge found his rights to counsel and to remain silent had been

breached, and excluded the statement, resulting in acquittal - SCC upheld - If evidence is self-incriminatory, it is automatically perceived as unfair

- Deprives the accused of a presumption of innocence - Forces them to take the stand to counter the damaging effects of an

unwitting confession - Both are fundamental to a fair trial - After Hebert other cases (Bartle) and (Mellenthin) further clarified the

changes to the post-Collins framework - Bartle – further expands on the impact of violations of right to counsel - Mellenthin – restated that factors affecting fairness of trial are most

important and should be given the most weight - Accused was stopped at a roadside check stop - Police asked him what was in his gym bag in his front seat - Officer was empty vials of a sort commonly used to store cannabis resin,

and searched the vehicle - Drugs were found, and the accused later gave an incriminating statement

to police - SCC found that fairness would be affected if check stops were accepted

as a basis for warrantless search, and the evidence found automatically admitted

- To admit evidence obtained in an unreasonable and unjustified search carried out while a motorist was detained in a check stop would adversely and unfairly affect the trial process and bring the administration of justice into disrepute

- SCC has also held that even real evidence obtained through a violation of the right to counsel should be excluded

- R v Burlingham included all derivative evidence, both real and testimonial, including a voluntary statement made to a person not in authority

- Accused was subjective to extended interrogation of several days - He expressed his right to remain silent, but police continued to question

and offer deals - He then gave a full confession, brought police to the murder scene and

told them where he threw the weapon - He then gave a full account to his girlfriend - The deal fell through, he was charged with first degree murder - SCC noted that even when the charge is serious and the evidence is

crucial to the case, admitting under such circumstances would still bring the administration of justice into disrepute

Questions:

- How does international law frame the issue of remedies for states?o Notion that international human rights law came first, and then domestic

law e.g. Charter that just ensured Canada followed their international obligations

o If you have rights, you need to have remedies (or rights are meaningless)

§ But note remedy is different than enforcement.· The focus on remedies decentralizes system/responsibility· Not incompatible though with individual police units, etc.

cleaning up their act- What are the two remedies in the “enforcement” section of the Charter?

1. 2.

- What is the goal of providing remedies?o Compensating the victim and larger goal of deterrence and protecting the

system from taking shortcutso Remedy is about the individual, but Charter basically sees remedies as

representing general enforcement (whether or not the individuals sees themselves on a crusade for their cause for the collective)

o Remedies is a way the system disciplines itselfo Remedy is one of the deep features of rule of lawo This is actually fairly new; the system doesn’t like to recognize it’s been

wrong.o There is a tension between the need to protect the rights of the accused

and the fear that an overly scrupulous procedure will crumble cases- In order to obtain a Charter remedy, do you need to essentially prove that the

stat has committed a tort?o Tort is about compensation (horizontal)o Remedy as public law deters the state, disciplines the system

- What might be the difference between private law and constitutional damages? What do you do with an abducted criminal shows up in your hands? (e.g. Eichmann shows up in Jerusalem after Masaad brought him from Argentina)

- Fruits of the poisonous tree doctrine -> says not to exercise jurisdiction; you should let the person go.

o This approach disincentives police and others from doing illegal activities e.g. kidnap, torture, etc. from doing so because their efforts will not be useful anyways

- Notion that the legal system didn’t do it What harm did Ward suffer?

- Just being wrongfully arrested is not enough.- It’s about the duration of detention, seriousness of impact (strip search, held

in small cell, etc.), psychological and reputational costsWhat is new in the Ward case?

- First case on remedies but also first case on a specific issue, damages. Most remedies don’t constitute damages.

- Its on the person asking for the remedies to prove the remedy would be appropriate and then on the State to show why it’s not (??? Wut)

- Defence says this could have a chilling effect on police enforcement, as they will know they have to pay damages for significant violations of the charter. Not a convincing argument for SCC because that’s actually the point, chilling effect on rights violations.

Can a favorable judgement be remedy enough?- In international law, this is called “satisfaction” and is enough.

When might Charter remedies not be just and appropriate?Should there be damages for laws that have been found unconstitutional?

- When something is called unconstitutional, it is named forever having been of no force or effect, but were relied upon for a long time

- But people can’t pursue damages for laws that have been unconstitutional because this opens floodgates

Is there any case where the exclusion of evidence is mandated under international human rights law?What was the position of the common law before the Charter on the admissibility of evidence?What did the Charter change?What is the US approach to exclusion of evidence?How does the Canadian rule of exclusion of evidence compare to the regime of the International Criminal Court? How does s.24(1) differ from section 2(2)?It is often said that the exclusionary rule has a deterrent effect. But we have seen that there is much skepticism in criminology about the prospects of deterrence. Discuss.What kind of illegally obtained evidence goes to the heart of the fairness of the trial (and what kind does not)?

- SCC is particularly against including evidence that self incriminates (e.g. police never told you that you had right to counsel)

Aside from impact on the right to fair trial, what might particularly incite the law to exclude evidence?What is conscriptive evidence and how is it different from self-incriminating evidence?

- That you’ve somehow been forced into giving self-incriminating evidence (forced, bullied, tricked)

Should every wrongful conviction lead to compensation?- Look at false confessions to cover for someone – if oyu’ve willingly midled

the judicial system, you were not “wrongfully convicted” in the same wayWhat was egregious about prosecution behaviour in the Henry case?What do you think of the requirement that one not have contributed to one’s own conviction as a bar to receiving compensation?Who should pay for the wrongfully convicted?

How does the situation of those exonerated compare to that of those who are paroled?

- People paroled are given certain rehabilitative services e.g. health, social programs

- The exonerated are not given any assistance

Challenging Discrimination in the Criminal Justice System (April 7)

Systemic Barriers to Racially Representative Law Enforcement Agencies (2017) Ontario Human Rights Commission

Imp?: Law enforcement agencies have addressed systemic discrimination in law enforcement agencies by giving more priority to quantitative representation goal. However, by focusing on entry- level positions, most employment equity efforts neglect issues of occupational segregation and other barriers to advancement and integration such as racial harassment.

5 important national developments have affected the debate on racially representative police services:1) s15(2) Charter which shield affirmative action programs from legal challenges of reverse discrimination2) Equality Now- which nationalized parliamentary committee on participation of visible minorities and imperative need for racially rep law enforcement3) Royal Commission on Equality in Employment (1984)4) National conference on policing a multicultural and multiracial society by Canadian Association of Chiefs of Police (1984)

1. 5) Series of police fatal shooting of racial minority and Aboriginal men in diff cities that sparked public outcries and forced authorities to act through creation of numerous public inquiries and eventually institutional equity measure.

Policing in Ontario: Remove barriers that directly and/ or adversely impact upon members of racial minorities and Aboriginal people such as Canadian Citizens requirement, height/ weight requirements, selection tests that were culturally biased etc.

Lingering Barriers: Despite efforts to increase number of racial minorities and Abs-there are still serious barriers of exclusion and discrimination.

1) A quasi-exclusive focus on entry-level constabulary positions at the expense of integration and promotion and of the diversification of civilian employees;

2. 2) Job ghettos; Few who are at the higher levels

3. 3) Racial harassment in the workplace; Power or hierarchical relationships infused with racial and related bias can produce a destructive work climate. Racial minority or Aboriginal officers may be constrained both personally and professional when a law enforcement workplace has no effective policy and mechanism to address race based harassment.

4. 4)Supervisor's support as a condition for promotion;5. 5) Security requirements and6. 6) The lack of police union support; Racial minorities and Aboriginal workers who encounter racial

discrimination and harassment in the workplace often find their unions to be less than supportive. This is partly due to the lack of knowledge of racism on he part of labour officials and partly due to evident bad faith and discrimination in fulfilling the union’s duty of fair representation.

The removal of discrimination based concept of equity measures, which is designed to overcome deep rooted obstacles of race- based exclusion in law enforcement, tends to ignore the reality of racism and other forms of discrimination, especially intersectional discrimination.

Contribute to the achievement of not only a racially representative organization, but one that reflects a diversity of values, customs and characteristics both at the personal and institutional levels.

Supreme Court Takes on Racial Discrimination in Jury Selection (2017) USA

US Supreme Court deals with race discrimination in the selection of jurors. Studies demonstrate that the prosecutors use peremptory strikes to remove black jurors at a significantly higher rate than white jurors.Grappling with what to do to address?Most experts say the only way to do that would eliminate or drastically limit the peremptory strikes and that is a nonstarter for one simple reason. Most trial lawyers ctd to believe these challenges are an essential tool for selecting a jury.

19860 SC added third step for jury selection in case Batson v. Kentucky. If defense could show racial pattern in prosecution peremptory strikes, the prosecutor would have to justify each one by demonstrating a non-racial reason for eliminating the juror.

Canadian Judges acknowledges Anti- Black Racism in Court (2016) Canadian Urbanism Uncovered

Toronto judge has made history by explicityly considering anti-black racism as a mitigating factor in sentencing a young drug offender. Rather than receiving a year in jail- Joel Reid will now spend 2 years under house arrest (still sign punishment).Fundamental principle in Canadian law is that a “sentence must be proportional to a gravity of the offence and the degree of responsibility to the offender”.Courts should take into position the societal issues, it can and should take the societal context into account in a fashioning an appropriate sentence for an individual offender.

Application in this case:Judge acknowledges the anti black racism in Canada and its influence on one’s participation crim and criminal justice.Also, concern that there is seriously negative consequences of incarceration our society would benefit if more member’s of the Canadian judiciary followed suit.

History of anti- black rasism:Written into Canadian laws through racially segregated schools with the last one until 1983 in Nova scotia. Also considering that white slave owners profited off of owning slaves. Likewise, black schools hampered employment trajectories of black graduates thus privileging white in the labour market and beyond. As well, more recently immigration policy has also done much to disadvantage this pop rhrough points system for entry into Canada. Large amount of Blacks who came to Canada were Caribbean woman recruited for domenstic work (1960s). This undoubtly leading to being at the lower ranks of Canada’s socioeconomic ladder.

Proposed class- action lawsuit alleges racial profiling by Durham police (2015)

Narrow parameters for when police may stop and document- or card- an individual and how and when they will inform vitizens that they are free to disengage if they are not being investigated for a specific crime.

The Overrepresentation of Minority Youth in Canada’s Criminal Justice

System (2015) The Public & Governance Review

Crime rate in Canada have been declining since the 1990s, but among Black and Aboriginal youth it has remained unchanged.Minority youth have not experience the same decline in incarceration rates as their Caucasian counterparts.Systemic Racism is element of the debate for unchanged sentencing for Black and Aboriginal youth à More likely to face poverty, unemployment, neighbourhood’s violence and family challenges- all which can contribute towards arrests. Aboriginal youth make up 6% of incarceration youth population + longer sentences on average regardless of severity.Federal legislation has done little to reduce the problem of disproportionate minority confinement.So main pt? The price that Canadian taxpayers pay for incarcerating youth is far higher than the price society would have to pay in order to implement prov- based solutions for addressing the overrepresentation of minority youth in Criminal Justice System. So, lets implement some policy measures like our friends in the USA.