CRM101

Question 1

What are the role of the courts?

Answer 1

• To determine the innocence or guilt of the accused.
• Balance the rights of the defendant and values of society.
• Power to shape criminal law (interpret what constitutes a crime)

Question 2

Who dictates and creates criminal law?

Answer 2

Federal government

Question 3

What is the definition of common law?

Answer 3

Law that is created out of judicial decisions (judge-made law)
- Unwritten laws based on legal precedent (outcomes cannot be determined based on existing statutes or written law)

Question 4

What are the 4 ways common law is created?

Answer 4

1. Parliament has acted outside of their power (judge has authority and discretion to strike down the law)
2. Law has violated a Charter right (i.e. freedom of speech, fundamental right to life, liberty, security)
3. Through interpretation of the Criminal Code and other statutes (created to interpret and define anything that needs to be clarified in the legislation)
4. Through creation of common law defences.

Question 5

What is the Criminal Court Process?

Answer 5

1. Guided by the Criminal Code, Charter, Common Law and other statues.
2. Presumption of innocence
3. Plea negotiations
4. Burden of proof/reasonable doubt
5. Trial by judge and jury
6. Sentencing

Question 6

What does the Criminal Code outline?

Answer 6

Outlines infractions, prosecution, /sanctions/penalties of a crime.

Question 7

What is the Charter of Rights and Freedoms?

Answer 7

Protects the rights of the accused throughout the court process.

Question 8

What are Criminal Proceeding Rules?

Answer 8

Often vary province-to-province.

Question 9

What is the presumption of innocence?

Answer 9

Accused is presumed innocent until proven guilty (marginalized and racialized individuals often plead guilty in fear of being convicted/lack financial resources to move through criminal trial process)
- Calls into question the use of pre-trial detention and remand.

Question 10

What are plea negotiations?

Answer 10

The Crown and defence decide on a penalty together and present it to the judge to avoid a trial.
- Judge must decide on the recommendations and assess whether the defendant was coerced into pleading guilty.

Question 11

Are most cases resolved via plea negotiations rather than trial? (T or F)

Answer 11

True!!!

Question 12

What is a burden of proof?

Answer 12

If a defendant goes to trial, the prosecution must prove beyond a reasonable doubt that the accused committed the crime.

• The prosecution must convince the jury that there is no other reasonable explanation for the evidence presented.
• The defence can raise reasonable doubt about the evidence presented and how it may not stack up to a guilty conviction.

Question 13

What is actus reus/mens rea?

Answer 13

Actus Reus: Act or omission

Mens Rea: Criminal Intent

Question 14

Do most cases that end up going to trial are tried by judges only? (T or F)

Answer 14

True!!!!

- For offences that carry 5 years or more of imprisonment, there is an option of electing to be tried by judge and jury.

Question 15

Who carries out sentencing?

Answer 15

Judges carry out sentencing that is based on a # of principles and goals.

• Criminal Code sets out maximum sentences
• Mandatory minimums (limited judicial discretion)

Question 16

What are the pre-trial stages of the criminal court process?

Answer 16

1. Preliminary Inquiries
2. Stay or Withdrawal of Charges
3. Judicial Interim Release (Bail)
4. Plea Agreements
5. Disclosure of Evidence

Question 17

What are preliminary inquiries?

Answer 17

When the judge reviews the evidence to decides if there is enough evidence to have a trial (case made against accused).
- The Crown must present a case that would hold in court and to satisfy judge that they should proceed to a trial

Question 18

Why would there be a stay or withdrawal of charges?

Answer 18

• Insufficient or inadmissible evidence
• Use of diversion programs to avoid trial
  (Defendant doesn’t move through criminal trial if charges are stayed or withdrawn)

Question 19

What should we know about judicial interim release (bail)?

Answer 19

If charges are not withdrawn and the accused proceeds to trial, a bail hearing process will continue.
- There is a presumption that bail will be granted unless the Crown can show why it should be denied (primary, secondary and tertiary grounds) = remand

Question 20

What is section 11(e) of the Charter?

Answer 20

An individual cannot be denied bail without cause.

Question 21

How quickly should a bail hearing occur?

Answer 21

A bail hearing should take place 24 hours after the accused is apprehended.

Question 22

What are some issues related to bail?

Answer 22

1. Risk management = certain populations are disproportionately denied bail
2. Increase use in remand = accused kept in remand until trial

Question 23

Reasons why an individual may be denied bail?

Answer 23

1. Amount of charges
2. No permanent address
3. Criminal history/record (moral character of accused)

Question 24

Are men or women denied bail more often?

Answer 24

Men - also race plays an indirect role in bail decisions (i.e. police reports/stereotyping)

Question 25

What is definition of reverse onus?

Answer 25

There are certain circumstances in the Criminal Code where there is a reverse on us on the accused to present a case on why they should be released on bail. - This occurs for charges such as murder, high treason, drug trafficking, terrorism, organized crime. - A legal provision that requires the accused to prove/disprove something (i.e. why they should be released on bail)

Question 26

What should we know about plea agreements?

Answer 26

- The accused pleads guilty in return for the prosecution's agreement to take a particular course of action (i.e. reduced sentence or charge)

Question 27

- Are most cases that are not stayed or withdrawn are decided through plea negotiations (T or F)

Answer 27

True! | - Very few cases make it through the whole trial process

Question 28

Advantages of plea negotiations?

Answer 28

Although plea negotiations are controversial there are benefits to this process. 1. Contributes to the efficiency of the CJS (time-consuming and costly) 2. Prevent traumatized witnesses from testifying. 3. If the accused accepts a plea agreement, they may receive a reduced sentence or charge.

Question 29

4 Disadvantages of Plea Negotiations?

Answer 29

1. Individuals who have committed a crime and accept a plea negotiation may avoid being punished (i.e. Karla Homolka) 2. Detrimental to the accused and their rights 3. Wrongful convictions (innocent individuals will plead guilty to avoid overcharging, longer sentences and enduring a criminal trial) 4. Miscarriage of justice

Question 30

What is disclosure of evidence?

Answer 30

The Crown must disclose all evidence (including exculpatory evidence to the defence).

Question 31

Does the defence have to disclose evidence to the prosecution? (T or F)

Answer 31

No, the defence DOES NOT have to disclose evidence to the prosecution. - It is not a two-way street.

Question 32

What is exculpatory evidence?

Answer 32

Evidence that may prove the defendant's innocence.

Question 33

What are the trial stages of the criminal court process?

Answer 33

1. If trial by jury: jury selection 2. Burden of proof/introduction of evidence 3. Defences

Question 34

What is included in the burden of proof/introduction of evidence?

Answer 34

1. The accused is presumed innocent until proven guilty. The prosecution must show beyond a reasonable doubt that the accused committed the crime. 2. Actus reus + mens rea

Question 35

What are the 6 purposes of sentencing?

Answer 35

1. Denunciation 2. Deterrence 3. Incapacitation 4. Rehabilitation 5. Reparation 6. Promoting a sense of responsibility for the accused

Question 36

What are victim impact statements?

Answer 36

Victims have the right to participate in sentencing via victim impact statements. - How impactful are victim impact statements in the sentencing outcomes?

Question 37

How is the introduction of evidence governed?

Answer 37

Canadian Evidence Act - Common law principles must be followed - All parties are subject to follow the Charter (if violated, certain evidence may be excluded from the trial)

Question 38

What are the post-trial stages of the criminal court process?

Answer 38

1. Pre-sentencing reports 2. Victim impact statements 3. Outlining the purpose of sentencing 4. Sentencing options 5. Appeal

Question 39

In Canada, the defendant has to testify? (T or F)

Answer 39

False. The defendant can choose to testify or not (right not to self-incriminate)

Question 40

Trial: What are defences?

Answer 40

- Rules of evidence in the criminal trial process are required to balance equality, due process rights and values, but are often politically driven. - Balance rights and values for accused and society

Question 41

What are some examples of sentencing options?

Answer 41

1. Incarceration 2. Intermittent, conditional, suspended sentences 3. Probation, fines, restitution 4. Absolute/conditional discharge

Question 42

Appeal - what are the 4 levels of court?

Answer 42

1. Provincial and territorial courts (lowest) 2. Provincial and territorial superior courts 3. Provincial and territorial courts of appeal 4. Supreme Court of Canada (highest)