CRIM131 Lecture 7 PDF

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Crim 131: Lecture 7 Criminal prosecution, sentencing & alternatives to confinement Detention & release: bail (judicial interim release) • • Reasonable cause necessary to deny release o If not release, must appear within 24 hours Show cause hearing o Reverse anus o Det...

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Crim 131: Lecture 7 Criminal prosecution, sentencing & alternatives to confinement Detention & release: bail (judicial interim release) • •

Reasonable cause necessary to deny release o If not release, must appear within 24 hours Show cause hearing o Reverse anus o Detained prior to trial if ▪ Prior conviction(s) ▪ Additional current charges ▪ Previous failure(s) to appear o Release with conditions (given paper with rules/ curfew/ no drugs) ▪ Monetary guarantee is rare

Pretrial remand (put in a cell until guilt/ innocence) •

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Persons in custody awaiting trial or sentencing o ‘dead time”; locked up= no treatment or resources o Gets religious needs, medicine, maybe a tv and work Warrant of committal o JP or judge As much as 80% of provincial jail population (yet to be found guilty) Concerns: o Lack of programs and services o Length of stay is uncertain Exception: non-Canadian citizens on Canadian soil o Can by held indefinitely ▪ Rare: only for terrorism; no warrant of committal

Fitness to stand trial: time AFTER offence •

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Mental state at time of trial o Understanding of charges o Understanding of consequences o Ability to communicate with counsel Psychiatric treatment until deemed fit to stand trial o Annual review Trial when deemed fit o May use defence of NCRMD is applicable Not criminally responsible: at time of offense, not at right state of time o Ex. Mental disorder; schizophrenia= hallucinations

Arraignment and plea • • • •

Charges read in open court Enter a plea o Guilt or not guilty Not guilty plea does not mean innocence Plea bargaining o Agreement in which accused gives up right to make crown prove case at trial o Promise of benefit

Plea bargaining Advantages • Saves time & money • Reduces case backlog • Complainants don’t need to testify • Accused admits guilt • Potential to get evidence to prosecute others

Disadvantages • Brings administration of justice into disrepute • Subject to abuse • Conviction of innocence • Pressure on defendants • Not open to public scrutiny

Defences: False Accusations and Mental State • •

Available defenses when charged with crime o False accusations Mental state o Not a voluntary offence ▪ NCRMD (schizophrenia) ▪ Automatism (sleep walking) ▪ Intoxication (less charge- voluntary to get intoxicated) - Mitigating

Defences: Justification •

Excuse based defences o Self defense o Duress o Necessity (ex. Breaking into a cabin in the wood to survive cold weather) o Victim consent (sexual assault/rape) (ex. Kavanaugh) o Battered women’s syndrome ▪ Women kills abusive partner

Defences: Procedural •

Procedural defences o Unconstitutionality of law (older laws are not longer relevant) (ex. Marijuana laws) o Unfair prosecution o Inadmissible evidence: taken without warrant o Charter violations

Purposes of Sentencing •

s. 718 of the CCC o denunciation of conduct o deter future of offending: general (public) vs. specific (offender) o protection of society o rehabilitation of offender o reparation for harm done Individual goals o accountability for actions

Sentencing Goals •

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Utilitarian (purposeful) o General deterrence o Specific deterrence o Rehabilitation o Incapacitation (incarceration) Retributive (punishment) o Denunciation o Retribution Restorative o Fix wrong doing o Mend relationships

Sentencing options •

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Discharge o Absolute Less serious o Conditional Fine Suspended sentence Probation Conditional sentence More serious Imprisonment o Intermittent: for people who have power/privileges, can serve on weekends/ part time ▪ Avoids harming relationships, easier to reintegrate into society Multiple sentences: concurrent or consecutive

Additional Sentencing Factors •

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Aggravating factors o More serious sentence than typical for offense ▪ Sexual nature; crimes against youth ▪ Violation of courts/probation/reoffending ▪ Willingly drinking and driving Mitigating factors o Less serious sentence than typical for offence ▪ Mental/cognitive issues ▪ First time offender ▪ Self defence ▪ Age

Alternatives to confinement • •

Majority of offender’s sentences to community supervision o High cost of incarceration (food, medication) Prison as a deterrent? o Questionable ▪ Prisons= relationship loss - No social skills - No legal source of income - No home ▪ Guards= - Powerful = criminals reoffending & prison gangs = revolving door system

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Targeted resources o For higher risk offenders

Principles of Effective Correctional Treatment (RNR Model) •

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Risk Principle: o Match programs with risk level of offender o (sexual offences, reoffenders, mental health) Need Principle: o Treatment must address factors related to reoffending behaviour o (treatment? Supervision? Restrictions?) Responsivity Principle: o Match interventions with learning styles/ abilities of offender...