Delivering Criminal JusticeUnit 3: Criminal Law

Plea BargainingThe system the media portrays is much more complex- trials, witnesses, surprise evidence….doesn’t really happen

80% of all criminal charges are disposed of through plea bargaining- accused pleads guilty- in return for a promise from the Crown

80% of the time the only interaction an accused has in court is when they plead guilty and the judge sentences them

Plea BargainingConcession the Crown can offer:- dropping of a number of charges to one- reduction of a severe charge (aggravated assault to assault)- drop a severe charge to a lesser one in exchange for evidence/testimony- leniency in sentencing

http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rr02_5/p3.html

In a plea bargain, the accused forfeits the right to be presumed innocent

Avoids public attention, delays, stress, and the high costs of a trial

Saves time, money and effort for the Crown

Plea Bargaining1975 Law Reform commission- “no place in a decent justice system”1995 Law Reform commission- “necessary and routine in a justice system”

However- “the public interest in the proper administration of justice should not be sacrificed in the interest of expediency”

Page 322- study by reporters Phon and Vincent

Plea Bargaining1993- “Deal with the Devil”

Paul Bernardo and Karla Homolka

1995 Bernardo guilty of two counts of 1st degree murder (among others)

1993 Karla Homolka guilty of Manslaughter- in exchange for key evidence and testimony to help convict Paul Bernardo

as of October 2014 she lives in Quebec with her three kids and husband

https://www.youtube.com/watch?v=6RCn1i5CwT8

Sentencing“the judicial determination of a legal sanction to be imposed on a person found guilty of an offence”

Regardless of the route to guilt, a sentencing hearing is always held to help the judge determine a just sentence- particular to the offender and offence

4 traditional aims:- denunciation- deterrence (specific and general)- separation- rehabilitation

Judicial discretion

SentencingThe only exception to the judicial discretion principle is for offences that carry a minimum prescribed minimum sentence (almost always a period of incarceration or fine amount)

Mandatory minimum for 1st Degree Murder is life without parole eligibility for 25 years (soon to be expanded)

Mandatory minimum for 2nd Degree Murder is life without parole eligibility for 10 to 25 years- dependent on factors

Many firearm offences (some recently revoked) have a minimum or offences where a firearm is used

Impaired driving as well

SentencingMandatory minimums are the exception in our code

However since the 1990’s the number of offences with mandatory minimum sentences has increased

There is still no clear logic that determines which offences carry such penalties

Then why and how do legislators make crimes with minimums?

Can they be cruel and unusual punishment?

R. v. Latimer 2001 1 SCR 3- page 325

The Sentencing HearingAfter some cases, sentencing begins after the finding of guilt

Others, the case will be adjourned so lawyers can gather evidence and develop arguments regarding an appropriate sentence

Less formal, relaxed attitude toward evidence

Purpose: craft a sentence appropriate for the particular offender and offence-

the more information a judge has the more likely a sentence can be reached that fits the aims of the Code.

The Sentencing HearingPre-Sentence Report- prepared by a probation officer at the request of the court

Observations regarding family, education, hobbies, employment, health etc…

Victim Impact Statement- victims or families of victims the opportunity to describe the emotional and physical impacts of the crime for the courts consideration

The Rights of Victims- page 329