1. Should the crown have the authority to decide whether hybrid offences are proceeded with by way of summary conviction or indictment? What are the advantages and disadvantages of this approach? What are the alternatives?

I do not think that crown should have authority to decide whether hybrid offences are proceeded with by way of summary conviction or indictment. I think the judge should be given this discretion rather than the crown counsel. For example, in England it is the judge who makes the decision as to which way the hybrid offences come from.  

The advantages of this approach when being charged these offences, the Crown has more discretion and flexibility with the charge and sentencing. Examples of these types of offences include “Driving While Under the Influence” or “Assault.

Disadvantages to this approach are it is giving too much power to the crown to decide which sentence the accused should receive when it should be the judge’s desertion because they have more authority than anyone else in the court room.

Disadvantage if the crown proceeds by way of summary conviction on a hybrid offence, after the limitation period has expired and without the consent of the accused, an accused who is convicted of such a summary conviction offence may appeal. Such an action would result in the proceedings being declared a nullity and the crown could then proceed by way of indictment unless the court decided the proceeding would be an abuse of process. However, the crown cannot appeal an acquittal on the basis of the expired limitation period, because it is the crown’s responsibility “to ensure that the proceedings were properly instituted”.

2. Can an accused who is charged with murder in Montreal waive the charge to Vancouver in order to pled guilty and be sentenced in Vancouver? Why or why not?

·      Yes, it is possible, under some situations, for an accused who has committed an offence in one province, to plead guilty in another province.

Section 478(3) allows for the waiver of charges for offences, other than those listed in section 469, from one province to another. For example, an accused may wish to plead guilty in Vancouver to an offence committed in Monteal for many reasons: the accused now resides in Vancouver, the expected penalty might be less in Vancouver, Family and friends may be less likely to hear about it, and so on. Section 479 allows for a waiver of charged within a province, under certain circumstances.

3. For what reasons might an accused or the crown are allowed to move the venue of a trial from Vancouver to Victoria?    

·      Is location where a trial takes place, is somewhat rare, but does occur.

Section 599 allows the crown or the accused to apply to have a trial moved to another territorial division of the same province.

Accused or the crown may be allowed to change in venue if there are adverse comments in the local newspaper might affect the impartiality of jurors.

4. When is a charge “instituted”?

·      A charge is not instituted until it is laid, but the charter does not say anything about the right o have a charge instituted in a reasonable time. It reads “a right to be tried within a reasonable time.”

5. From what time does the limitation period for a summary conviction offence generally begin?

·      Section 786(2) governs Summary conviction offences, and states that “no proceedings shall be instituted more than 6 months after the time when the subject matter of the proceedings arose, unless the prosecutor and the defendant so agree”.

o   Section 786(1) reads, “except where otherwise provided by law, this part applies to proceedings as defined in this part”.

o   There is a 6-month limitation period on summary conviction offences unless a statute provides for a different limitation period.

6. Does the right to trial within a reasonable time extend to sentencing? To the appeal process?

• Yes, section 11(b) if the charter also covers the sentencing component of a trial. The delay must be unreasonable.
• Section 11(b) of the charter did not apply to delay caused through the appellate process. however, the court did state that section 7 of the charter may apply in some circumstances, "where a trial would violate those fundamental principles of justice which underlie the communities sense of fair play and decency"

7. What factors will a court consider when it evaluates whether a persons right to be tried within a reasonable time was violated?

·      In 1990 trial judges had considered a number of factors when determining whether the delay in getting an accused person to trial was unreasonable within section 11(b) of the charter.

·      Factors are:

§  Length of delay

§  Explanation of delay

§  Whether the accused person waived his or her section 11(b) right for any period.

§  Whether the accused person was prejudiced by the delay.

8. Under what circumstances would a delay of 25 years between the commission of a murder and the laying of a charge be considered a violation of an accused’s right under the charter? Which section would be applicable?

Section 11 (b) of the charter states that “any person charged with an offence has a right to be tried within a reasonable time” A violation of this right can result in the  court entering a judicial stay of proceedings under section 24(1) of the charter. In this instance, time plays a major rile in determining, whether a charter right has been violated, and whether an accused can seek a remedy under section 24(1).

9. The supreme court of Canada established ceilings above which delay would be considered presumptively unreasonable. What are these ceilings? What does the crown have to prove in order to proceed with a trial after the presumptive ceiling?

The goal of the new approach set out by the Supreme Court in Jordan is to provide greater certainty to all parties involved by establishing ceilings beyond which a delay is presumptively considered unreasonable.

The new framework set out in Jordan establishes that:

There is a presumptive ceiling of 18 months for the length of a case in the provincial courts,

There is a presumptive ceiling of 30 months for criminal cases in superior courts

If this ceiling is met or exceeded (excluding delay caused by the defence), the delay is presumed to be unreasonable. The Crown may rebut this presumption by demonstrating the presence of exceptional circumstances, which generally fall into two categories:

• Discrete events that were unavoidable and unforeseeable (e.g., illness); or
• Cases that are particularly complex and either the nature of the evidence or the issues requires more time than usual.

10. Can an accused argue that they have been denied their right to a reasonable trial if their trial takes place before the presumptive ceiling? Explain your answer.

Yes, the accused might still argue that the trial took place before the presumptive ceiling. But, they may not benefit from the presumption of unreasonableness. The accused will have to demonstrate that they took “meaningful and sustained steps to be tried quickly”. They will also have to show that the delay “markedly exceeds the reasonable times requirements of the case”, in which case reasonableness will be determined by a variety of factors such as case complexity and crown conduct.

11. What is certiorari and mandamus?

·      Certiorari is an application to a higher court to overturn the decision made by a lower court, in this case to quash the stay of proceedings made by a provincial court judge.

·      An application for mandamus is an application to have a higher court order a lower court to do something in this case, conduct the preliminary hearing into the offences charged in the information.

1.     Explain the difference between certiorari and mandamus, and provide an example of each.

Certiorari is an application to a higher court to overturn the decision made by a lower court, in this case to quash the stay of proceedings made by a provincial court judge.

For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard.

An application for mandamus is an application to have a higher court order a lower court to do something in this case, conduct the preliminary hearing into the offences charged in the information.

Example: The lawyer may prepare for a mandamus in order to get the judge to comply with the law.

2.     Gorges has been convicted of criminal negligence under section 219 of the Criminal Code. Unfortunately, the trial judge has fallen ill and has retired from the bench, thus resulting in a delay between Gorges’ conviction and sentencing. Does section 11(b) of the Charter cover the sentencing component of a trial? If so, would Gorges have a case? What would the potential remedies be?

Yes, the accused has the right under section 11(b) of the charter, which states, “The person charged with an offence has the right to be tried within a reasonable time”. Since, the judge fell sick and has retired from bench it will delay the accused conviction. For example, the accused may practice a potential remedy under section 24(1) of the charter.

 What is “judge shopping”? What are its benefits and what are the problems with it?

Judge shopping is a practice of trying to replace a judge that has been assigned to your file with another one in the hopes that the new judge will be more favourable for your case.

Benefits: jury trial take longer, and cost more and place more demands on the counsel.

Problems: judge shopping is an abuse of process

4.     What are two major differences between contraventions and offences? What are the implications for these differences?

Many of the provinces have, for some time, been using a ticketing system. It is also used now for federal offences under the Contraventions Act. This legislation permits police officers to issue tickets, which if paid, allow the person to avoid going to court, much like a speeding ticket in many provinces. If persons who receive a ticket want to protest the automatic fine, they can request a court hearing. The Contraventions Act does not contain punishment that involves jail time.

Offences are

   Should hybrid offences be abolished? Why or why not?

Yes, the present system gives the crown to decide whether to proceed with a summary offence or as an indictable offence. Hybrid offences give the crown too much discretion.

1.     What are three implications of increasing the number of hybrid offences and decreasing summary conviction offences?

   What is the role of the Crown in criminal prosecutions? Is it acceptable for a prosecutor to “judge shop”?

Crown counsel operates independently and they do not represent the government, police of victim of an offence.  The courts have described the role of Crown Counsel in Canada as a quasi-judicial function and a matter of significant public duty. In our system of justice, when a crime is committed against a victim, it is also a crime against our society as a whole. Therefore, prosecutors do not represent individual victims; they perform their function on behalf of the community.

  What is the general time limitation in which the prosecution of a hybrid offence must be commenced?

The time limitation will depend on which way the crown proceeds. In a sense, this choice allows the crown to bypass the summary conviction limitation period for hybrid offences.

   What is the effect of the Crown proceeding by way of summary conviction for a hybrid offence after the six-month time limitation has expired?

If the crown proceeds by way of summary conviction on a hybrid offence, after the limitation period has expired and without the consent of the accused, an accused who is convicted of such a summary conviction offence may appeal. Such an action would result in the proceedings being declared a nullity and the crown could then proceed by way of indictment unless the court decided the proceeding would be an abuse of process. However, the crown cannot appeal an acquittal on the basis of the expired limitation period, because it is the crown’s responsibility “to ensure that the proceedings were properly instituted”.

   Does a trial within a reasonable time cover the time between a verdict and written reasons?

 Jack has been arrested for stalking his ex-partner Joe (an offence under section 264(3)(a) of the Criminal Code) and poses a threat to Joe’s safety. Will Jack have an election in terms of how he will be tried? Why or why not?

mindfucked.

Jack will have an election since the crown is proceeding him with a indictment offence.

He has three different choices:

1) Trial by provincial judge

2)Trial by superior court judge without jury

3) trial by superior court judge and jury

  Jeff, a resident of British Columbia, is charged with alarming Her Majesty in Ottawa. Can Joe waive the charges to Vancouver in order to plead guilty to them? Why or why not? Be prepared to answer this question for any other charge.

Yes, section 478(3) allows for the waiver of charges for offences, other than those listed in section 469, from one province to another. An accused may wish to plead guilty in Vancouver to an offence committed in Ottawa for many reasons: the accused now resides in Vancouver, the expected penalty might be less in Vancouver, family and friends are less likely to hear about it, and so on..