JUST 1010 Lecture Notes - Lecture 10: Actus Reus, List Of Compositions By Franz Liszt, Child Custody
To charge or not to charge… That is the question.
Police Discretion
No directions can be found in the Criminal Code concerning the exercise of police discretion.
•
Law enforcement and the proper functioning of the criminal justice system require that it be
exercised on a daily basis.
•
Not all those who commit minor offences should be arrested by the police or prosecuted.
•
A system that attempted to eliminate discretion would be unworkably complex and rigid. (R.v.
Beare, 1988).
•
Discretion is not absolute. Far from having carte blanche, police officers must justify their decisions
rationally.
•
The exercise of the discretion must be justified subjectively, that is, the discretion must have been
exercised honestly and transparently, and on the basis of valid and reasonable grounds.
•
A decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a
proper exercise of police discretion. (R. v. Beaudry)
•
The offence of Obstruct Justice S.139 CCC
•
Subsection 3 lists examples of how the offence can be committed;
•
Can be wide ranging;
•
Actus Reus is the “attempt in any manner to obstruct, pervert or defeat the course of justice”;
•
Mens Rea is the “wilful” intent thereof
•
The justification for a decision must have 4 elements:
It must be informed;
1.
Include concrete reasons, not favoritism nor bias;
2.
Must be subjectively and objectively honest and logical
3.
Common Sense
4.
Charging an Offender
Laying an Information
Form 2, s. 841 C.C.
→
•
Arrest refers to physical custody; does not constitute a formal charge.
•
Accused formally charged when Justice signs the Information.
•
Purposes of an Information
To commence proceedings against the accused.
•
To inform the accused about the specific allegation.
•
To indicate that the allegation has been sworn under oath before a Justice.
•
If the offence is summary conviction, to indicate that a formal charge was laid within six months of
the offence date.
•
Laying an Information
General Rules
Anyone may lay an Information.
Informant.
→
5.
Receiving an Information.
Are there reasonable grounds?
→
6.
Information not laid in open court.7.
Time limit.
Classification of offence, existence of release/compelling document.
→
8.
Contents of an Information
General Rules
Sufficient detail.1.
Facts-in-issue information complete.2.
Alleges at least one count (charge).3.
Statement that alleges one complete offence.4.
Wording (includes no inessential language).5.
Contents of an Information in the Criminal Code
Contents of an Information
Specific Contents
Territorial jurisdiction or region.1.
Informant’s name.2.
Accused’s name and address.3.
Offence date.4.
Location of offence.5.
Wording.6.
Informant’s signature.7.
Sworn oath.8.
Joinder of Counts
When multiple offences have been committed by one offender charged with more than one count.
•
Separate Information for each, or join counts on one Information?
•
Joinder of Counts —Rules
Summary conviction offences may be joined only with other summary conviction offences.
•
Indictable or dual procedure offences may only be joined with other indictable or dual procedure
offences.
•
Each count must be distinguished as separate.
•
Unlimited counts may be joined on one document.
•
Joinder of Parties
Multiple offenders
Should they be charged separately or jointly?
•
Co-accused persons cannot testify against one another.
•
Charging multiple offenders separately is the recommended procedure.
•
Concept of an Ex Parte Hearing
Also remember this page
Ex Parte Hearing —Procedure
Informant writes an Information.1.
Information brought before Justice.2.
Informant signs Information.3.
Informant swears under oath that contents of Information are true.4.
Ex parte hearing begins.5.
Informant swears under oath and testifies about evidence.
If necessary, witnesses called to testify.6.
Justice decides whether or not to sign Information.7.
Concept of Indictment and Preliminary Hearing
Indictment
•
An indictment is a written document that formally charges an offender.
-
Written by a Crown Attorney; becomes valid without being brought before a Justice.
-
Preferring an indictment.
-
Replaces Information when trial conducted in Superior Court.
-
Problem-Solving Case Studies
Walter and Eddie have known each other for several years. Eddie assaulted Walter three days ago.
Can Walter lay an Information today to charge Eddie?
1.
Yes. Any person, civilian or police officer, may lay an info if the person has a belief based on RG that
a specific person has committed a criminal offence
-
Can prove RG in this case, "assault" is a dual procedure offence.
-
Warren is a security guard in a department store. He sees Eddie commit “theft under $5,000.” Can
Warren lay an Information anonymously so that Eddie will not know who charged him?
2.
The informant must be laid on the information
-
You form reasonable grounds today that Will committed “fraud under $5,000” eight months ago and
you arrest Will without a warrant today. Will is subsequently released at the police station by means
of a promise to appear.
3.
Problem 3a
When must you lay an Information?
•
As soon as practicable afterward and before the -----
-
Before whom must the Information be laid?
•
A JP
-
You complete the Information and bring it to a JP. You sign the Information. What must occur
afterward?
•
How will the Crown elect to proceed?
•
Six months limitation----
-
FORM 2
(Sections 506 and 788)
INFORMATION
Canada,
Province of Ontario,
Municipality of Toronto
This is the information of William Smith, of Toronto, (Peace Officer), hereinafter called the
informant.
The informant says that he believes on reasonable grounds that:
George Byron Gigglesworth, on or about the 17th day of March, at or near the Municipality of
Toronto in the Province of Ontario, did steal a silver keg of green coloured Guinness lager beer, the
property of James O’Smyth, contrary to the Criminal Code of Canada
Sworn before me this 20th day of March, A.D. 2012, at the Municipality of Toronto.
(Signature of Informant).......
(Signature of )A Justice of the Peace in and for the Province of Ontario
Ex. catching someone with
a joint or two, maybe let
them off-what is your
reasoning/advantage/purp
ose? (If they have a clean
record)
Teach a lesson
-
Open their eyes
-
< Remember this
slide (indictment)
TIA
OWL
IS
W10 Police Discretion
Thursday,+March+ 22,+2018
8:00+AM
To charge or not to charge… That is the question.
Police Discretion
No directions can be found in the Criminal Code concerning the exercise of police discretion.
•
Law enforcement and the proper functioning of the criminal justice system require that it be
exercised on a daily basis.
•
Not all those who commit minor offences should be arrested by the police or prosecuted.
•
A system that attempted to eliminate discretion would be unworkably complex and rigid. (R.v.
Beare, 1988).
•
Discretion is not absolute. Far from having carte blanche, police officers must justify their decisions
rationally.
•
The exercise of the discretion must be justified subjectively, that is, the discretion must have been
exercised honestly and transparently, and on the basis of valid and reasonable grounds.
•
A decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a
proper exercise of police discretion. (R. v. Beaudry)
•
The offence of Obstruct Justice S.139 CCC
•
Subsection 3 lists examples of how the offence can be committed;
•
Can be wide ranging;
•
Actus Reus is the “attempt in any manner to obstruct, pervert or defeat the course of justice”;
•
Mens Rea is the “wilful” intent thereof
•
The justification for a decision must have 4 elements:
It must be informed;1.
Include concrete reasons, not favoritism nor bias;2.
Must be subjectively and objectively honest and logical3.
Common Sense4.
Charging an Offender
Laying an Information
Form 2, s. 841 C.C.
→
•
Arrest refers to physical custody; does not constitute a formal charge.
•
Accused formally charged when Justice signs the Information.
•
Purposes of an Information
To commence proceedings against the accused.
•
To inform the accused about the specific allegation.
•
To indicate that the allegation has been sworn under oath before a Justice.
•
If the offence is summary conviction, to indicate that a formal charge was laid within six months of
the offence date.
•
Laying an Information
General Rules
Anyone may lay an Information.
Informant.
→
5.
Receiving an Information.
Are there reasonable grounds?
→
6.
Information not laid in open court.7.
Time limit.
Classification of offence, existence of release/compelling document.
→
8.
Contents of an Information
General Rules
Sufficient detail.1.
Facts-in-issue information complete.2.
Alleges at least one count (charge).3.
Statement that alleges one complete offence.4.
Wording (includes no inessential language).5.
Contents of an Information in the Criminal Code
Contents of an Information
Specific Contents
Territorial jurisdiction or region.1.
Informant’s name.2.
Accused’s name and address.3.
Offence date.4.
Location of offence.5.
Wording.6.
Informant’s signature.7.
Sworn oath.8.
Joinder of Counts
When multiple offences have been committed by one offender charged with more than one count.
•
Separate Information for each, or join counts on one Information?
•
Joinder of Counts —Rules
Summary conviction offences may be joined only with other summary conviction offences.
•
Indictable or dual procedure offences may only be joined with other indictable or dual procedure
offences.
•
Each count must be distinguished as separate.
•
Unlimited counts may be joined on one document.
•
Joinder of Parties
Multiple offenders
Should they be charged separately or jointly?
•
Co-accused persons cannot testify against one another.
•
Charging multiple offenders separately is the recommended procedure.
•
Concept of an Ex Parte Hearing
Also remember this page
Ex Parte Hearing —Procedure
Informant writes an Information.1.
Information brought before Justice.2.
Informant signs Information.3.
Informant swears under oath that contents of Information are true.4.
Ex parte hearing begins.5.
Informant swears under oath and testifies about evidence.
If necessary, witnesses called to testify.6.
Justice decides whether or not to sign Information.7.
Concept of Indictment and Preliminary Hearing
Indictment
•
An indictment is a written document that formally charges an offender.
-
Written by a Crown Attorney; becomes valid without being brought before a Justice.
-
Preferring an indictment.
-
Replaces Information when trial conducted in Superior Court.
-
Problem-Solving Case Studies
Walter and Eddie have known each other for several years. Eddie assaulted Walter three days ago.
Can Walter lay an Information today to charge Eddie?
1.
Yes. Any person, civilian or police officer, may lay an info if the person has a belief based on RG that
a specific person has committed a criminal offence
-
Can prove RG in this case, "assault" is a dual procedure offence.
-
Warren is a security guard in a department store. He sees Eddie commit “theft under $5,000.” Can
Warren lay an Information anonymously so that Eddie will not know who charged him?
2.
The informant must be laid on the information
-
You form reasonable grounds today that Will committed “fraud under $5,000” eight months ago and
you arrest Will without a warrant today. Will is subsequently released at the police station by means
of a promise to appear.
3.
Problem 3a
When must you lay an Information?
•
As soon as practicable afterward and before the -----
-
Before whom must the Information be laid?
•
A JP
-
You complete the Information and bring it to a JP. You sign the Information. What must occur
afterward?
•
How will the Crown elect to proceed?
•
Six months limitation----
-
FORM 2
(Sections 506 and 788)
INFORMATION
Canada,
Province of Ontario,
Municipality of Toronto
This is the information of William Smith, of Toronto, (Peace Officer), hereinafter called the
informant.
The informant says that he believes on reasonable grounds that:
George Byron Gigglesworth, on or about the 17th day of March, at or near the Municipality of
Toronto in the Province of Ontario, did steal a silver keg of green coloured Guinness lager beer, the
property of James O’Smyth, contrary to the Criminal Code of Canada
Sworn before me this 20th day of March, A.D. 2012, at the Municipality of Toronto.
(Signature of Informant).......
(Signature of )A Justice of the Peace in and for the Province of Ontario
Ex. catching someone with
a joint or two, maybe let
them off-what is your
reasoning/advantage/purp
ose? (If they have a clean
record)
Teach a lesson
-
Open their eyes
-
< Remember this
slide (indictment)
TIA
OWL
IS
W10 Police Discretion
Thursday,+March+ 22,+2018 8:00+AM
To charge or not to charge… That is the question.
Police Discretion
No directions can be found in the Criminal Code concerning the exercise of police discretion.
•
Law enforcement and the proper functioning of the criminal justice system require that it be
exercised on a daily basis.
•
Not all those who commit minor offences should be arrested by the police or prosecuted.
•
A system that attempted to eliminate discretion would be unworkably complex and rigid. (R.v.
Beare, 1988).
•
Discretion is not absolute. Far from having carte blanche, police officers must justify their decisions
rationally.
•
The exercise of the discretion must be justified subjectively, that is, the discretion must have been
exercised honestly and transparently, and on the basis of valid and reasonable grounds.
•
A decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a
proper exercise of police discretion. (R. v. Beaudry)
•
The offence of Obstruct Justice S.139 CCC
•
Subsection 3 lists examples of how the offence can be committed;
•
Can be wide ranging;
•
Actus Reus is the “attempt in any manner to obstruct, pervert or defeat the course of justice”;
•
Mens Rea is the “wilful” intent thereof
•
The justification for a decision must have 4 elements:
It must be informed;1.
Include concrete reasons, not favoritism nor bias;2.
Must be subjectively and objectively honest and logical3.
Common Sense4.
Charging an Offender
Laying an Information
Form 2, s. 841 C.C.
→
•
Arrest refers to physical custody; does not constitute a formal charge.
•
Accused formally charged when Justice signs the Information.
•
Purposes of an Information
To commence proceedings against the accused.
•
To inform the accused about the specific allegation.
•
To indicate that the allegation has been sworn under oath before a Justice.
•
If the offence is summary conviction, to indicate that a formal charge was laid within six months of
the offence date.
•
Laying an Information
General Rules
Anyone may lay an Information.
Informant.
→
5.
Receiving an Information.
Are there reasonable grounds?
→
6.
Information not laid in open court.
7.
Time limit.
Classification of offence, existence of release/compelling document.
→
8.
Contents of an Information
General Rules
Sufficient detail.
1.
Facts-in-issue information complete.
2.
Alleges at least one count (charge).
3.
Statement that alleges one complete offence.
4.
Wording (includes no inessential language).
5.
Contents of an Information in the Criminal Code
Contents of an Information
Specific Contents
Territorial jurisdiction or region.
1.
Informant’s name.
2.
Accused’s name and address.
3.
Offence date.
4.
Location of offence.
5.
Wording.
6.
Informant’s signature.
7.
Sworn oath.
8.
Joinder of Counts
When multiple offences have been committed by one offender charged with more than one count.
•
Separate Information for each, or join counts on one Information?
•
Joinder of Counts —Rules
Summary conviction offences may be joined only with other summary conviction offences.
•
Indictable or dual procedure offences may only be joined with other indictable or dual procedure
offences.
•
Each count must be distinguished as separate.
•
Unlimited counts may be joined on one document.
•
Joinder of Parties
Multiple offenders
Should they be charged separately or jointly?
•
Co-accused persons cannot testify against one another.
•
Charging multiple offenders separately is the recommended procedure.
•
Concept of an Ex Parte Hearing
Also remember this page
Ex Parte Hearing —Procedure
Informant writes an Information.1.
Information brought before Justice.2.
Informant signs Information.3.
Informant swears under oath that contents of Information are true.4.
Ex parte hearing begins.5.
Informant swears under oath and testifies about evidence.
If necessary, witnesses called to testify.6.
Justice decides whether or not to sign Information.7.
Concept of Indictment and Preliminary Hearing
Indictment
•
An indictment is a written document that formally charges an offender.
-
Written by a Crown Attorney; becomes valid without being brought before a Justice.
-
Preferring an indictment.
-
Replaces Information when trial conducted in Superior Court.
-
Problem-Solving Case Studies
Walter and Eddie have known each other for several years. Eddie assaulted Walter three days ago.
Can Walter lay an Information today to charge Eddie?
1.
Yes. Any person, civilian or police officer, may lay an info if the person has a belief based on RG that
a specific person has committed a criminal offence
-
Can prove RG in this case, "assault" is a dual procedure offence.
-
Warren is a security guard in a department store. He sees Eddie commit “theft under $5,000.” Can
Warren lay an Information anonymously so that Eddie will not know who charged him?
2.
The informant must be laid on the information
-
You form reasonable grounds today that Will committed “fraud under $5,000” eight months ago and
you arrest Will without a warrant today. Will is subsequently released at the police station by means
of a promise to appear.
3.
Problem 3a
When must you lay an Information?
•
As soon as practicable afterward and before the -----
-
Before whom must the Information be laid?
•
A JP
-
You complete the Information and bring it to a JP. You sign the Information. What must occur
afterward?
•
How will the Crown elect to proceed?
•
Six months limitation----
-
FORM 2
(Sections 506 and 788)
INFORMATION
Canada,
Province of Ontario,
Municipality of Toronto
This is the information of William Smith, of Toronto, (Peace Officer), hereinafter called the
informant.
The informant says that he believes on reasonable grounds that:
George Byron Gigglesworth, on or about the 17th day of March, at or near the Municipality of
Toronto in the Province of Ontario, did steal a silver keg of green coloured Guinness lager beer, the
property of James O’Smyth, contrary to the Criminal Code of Canada
Sworn before me this 20th day of March, A.D. 2012, at the Municipality of Toronto.
(Signature of Informant).......
(Signature of )A Justice of the Peace in and for the Province of Ontario
Ex. catching someone with
a joint or two, maybe let
them off-what is your
reasoning/advantage/purp
ose? (If they have a clean
record)
Teach a lesson
-
Open their eyes
-
< Remember this
slide (indictment)
TIA
OWL
IS
W10 Police Discretion
Thursday,+March+ 22,+2018 8:00+AM
Document Summary
To charge or not to charge that is the question. No directions can be found in the criminal code concerning the exercise of police discret. Law enforcement and the proper functioning of the criminal justice system require that exercised on a daily basis. Not all those who commit minor offences should be arrested by the police or prosecuted. A system that attempted to eliminate discretion would be unworkably complex and rigid. Far from having carte blanche, police officers must justify the rationally. The exercise of the discretion must be justified subjectively, that is, the discretion must exercised honestly and transparently, and on the basis of valid and reasonable grounds. A decision based on favouritism, or on cultural, social or racial stereotypes, cannot const proper exercise of police discretion. (r. v. beaudry) Subsection 3 lists examples of how the offence can be committed; Actus reus is the attempt in any manner to obstruct, pervert or defeat the course of ju.
