19991101
Description
Flashcards by Jean Ramsay, updated more than 1 year ago
|
Created by Jean Ramsay
about 6 years ago
|
|
| Question | Answer |
| What are the 6 steps in preparing to defend a POA case? (6) | 1. interview the client 2. request disclosure from the Crown 3. obtain all relevant documents 4. research and investigate 5. conduct a second interview with client 6. attend court (motion, trial, guilty plea) |
| What must you do when interviewing your client for the first time? | Realize that they are likely anxious and stressed. Explain all aspects of the charge and the process Present them their options Make recommendations Receive complete instructions Make sure they bring all relevant documents (drivers license, charging document, correspondence) |
| What do you ask of your client during the intake interview? | ask them to give you detailed notes of hat they remember You can use this to refresh their memory later |
| Charging Documents Part I (2) Part II Part III | Part I- certificate of offence or summons Part II- parking ticket Part III- information |
| Your client gives you the charging document. What is your first step? | Check for fatal and non fatal errors. If there are errors you can make a motion to quash the charge. |
| There is an error on the charging document. Most times where can you look to for amendment? What is required? | POA s.34(1) You need the court's approval |
| Time Frames of Service Part I Part II Part III exception applies to ? | Part I- 30 days Part II- at the time of the offence Part III- within 6 months Exception applies to CAIA and is 3 years |
| padding the record / why pad the record | when you give your explanation for requesting an adjournment. Padding the record protects you from having a s.11b application against you if the trial doesn't happen within the R v Jordan time frame guidelines |
| the most common reason for trial delay is | delay in giving disclosure |
| s. 11b of the Charter/ corresponding case law | your right to a trial within a reasonable time R v Jordan- SCC 2016, 18 months to trial from date of offense in POA and 30 months in Superior Court after preliminary inquiry |
| When presenting your clients options to them what must you tell them . | what their options are explain the possible outcomes explain risks associated with each option male recommendations your client ultimately makes the decision |
| What are your client;s options for a Part I Offence Notice | Pay out of court Early resolution meeting with prosecutor plea guilty trial (notice of intention to dispute charge) fail to respond and be deemed not to dispute |
| What are your clients options for a Part I Summons (3) What distinguished about a summons? What happens if your client does not attend? | 1. enter a guilty plea 2. negotiate with prosecutor 3. have a trial the court date is on the front of the summons if you dont attend a warrant can be issued for your arrest |
| What are your clients options for a Part II parking ticket? What happens if your client fails to respond? | 1. pay out of court 2. notice of intention to dispute charge 3. informal negotiations Failure to respond- after 15 days a notice of impending conviction comes in the mail and after 15 more days a conviction is entered |
| What is a retainer agreement, what must it contain? | The fees, disbursements, and HST to be paid by the client. Must outline the services that the paralegal will proved and best practice to include the form on the LSO wen site |
| Paralegal Rules-- Guideline 6(4) | 1. this rule is about how a paralegal can provide more effective service 2. Provide more effective service through managing client expectations and being clear about what client expects at the beginning of retainer and throughout 3. draft a thorough and complete retainer agreement |
| Monetary Retainer | POA- flat fee usually collected BEFORE paralegal begins work on the file Must be deposited into a trust account cant be transferred until work is completed and statement of account is sent to client |
| POA: a young person is _____________ | Is or APPEARS to be 12 years of age but under 16 |
| Your client is 15 and commints a provincial offense related to driving. What will happen when your client is of legal age to get a license | a drivers license number will be issued to your client before they are of legal age and all charges committed before age 16 will apply to their future drivers license |
| What is the cut off age to be considered a young person in POA | 15 |
| POA regarding young persons s 95 s 96 | s. 95 must be summons to young person s. 96 notice to parent plus copy of summons |
| What must a young person do regarding summons. What happens if they fail to do this | Must attend court because summons issued to young persons do not have a pay out of court option If they fail to appear in court court can be adjourned or an arrest warrant can be issued |
| Contempt Key points + what section | Part V s 90-91 - show cause hearing (about why they should or should not be punished) - involves conduct in the body of the court -can be against anyone, like a lawyer or paralegal |
| Part VIII of POA section 24 | regarding reasonable and probable grounds to have an arrest warrant issued remains in force until warrant is executed by a police officer arrested and brought to JP must show the defendant the reasons and warrant only applies to defendants in ontario |
| arrest without a warrant | if officer has reasonable and probable grounds to believe a warrant already in effect (they dont have the physical warrant on them but there is reasonable and probable grounds that one exists) not always necessary for officer to have warrant |
| Civilian Arrest s 145 POA | Any person may arrest a person who he or she believes has committed an offense and is escaping from and FRESHLY PURSUED BY A POLICE OFFICER |
| interim release POA s 149 Exceptions | usually released once served with a summons by an officer UNLESS the officer needs to confirm identity, officer needs to secure or preserve evidence, prevent a further offense from happening |
| Bail Hearing | if not released by arresting officer must be brought before a justice within 24 hours can plead guilty or go to trial JP can release on an undertaking UNLESS the prosecutor can show cause why it is necessary for the defendant to be detained can release with recognizzance |
| * What must the paralegal do prior to a bail hearing | speak to prosecutor and request disclosure about the offence, reasons for detainment, need for surety |
| R v Fekre | Could have been charged with dangerous operation of a motor vehicle under the criminal code OR careless driving under the highway traffic act Facts: victim walking her dog on Dundas in TO, defendant looked down to reach a bottle of water, he said that he took his eyes off the road for a second, not speeding or impaired, victim was killed ISSUE- was it dangerous driving or a momentary lapse in judgement OR careless driving (not driving with due care and attention) DECISION: careless driving (momentary inattention) |
| what are the 4 types of procedural defenses | 1. errors in the charging document 2. late service 3. lack of disclosure 4. limitation period expired |
| how do you look for errors in the charging document according to POA s 34(4) (5) | 1. what evidence has been given 2. circumstances of the case 3. has the defendant been misled 4. has the defendant been prejudiced 5. is the defendant able to make a full answer and defence |
| How can you tell if there is an error in the charging document. | missing date, date of service, name of defendant, missing wehre offence took place, missing officers signature |
| If the limitation period is not indicated then what do you assume? | That the limitation period applies for Part III stream and is 6 months by default |
| What are the part of the LLA | LLA O Reg 719 |
| What documents must be disclosed and filed with the court? (3) *** | 1. exhibit one- notice under evidence act regarding the filing of documents 2. exhibit two- certified documents showing corporation and listing directors (ties defendant to the bar) (this is so you can charge all directors of the organization with the offense because they are all equally as responsible) 3. exhibit 3- copy of liquor license |
| O Reg 389/91 s 15(1) *** | a permit holder shall not adulterate liquor by adding any substance to it or keep for sale or sell adulterated liquor |
| A licensee may not represent a party without having first | reviewed disclosure |
| R v Stinchcombe 1991 | lawyer charged with theft and fraud must provide defence with all evidence that COULD POSSIBLY BE RELEVANT whether the crown plans to call that evidence or not (even if it could hurt the crowns case) |
| boiler plate request | a nonsensical request for disclosure |
| What is a legal duty of the crown | to disclose evidence to the defense |
| how does s 7 of charter relate to disclosure | s 7 is the right to full answer and defense, the crown has to provide the defense with all relevant information but the defense is not obliged to do the same |
| what are the 5 disclosure expectations | 1. investigators notes 2. copy of accident report 3. witness statements 4. photos of vehicle 5. body cam video |
| how do you request disclosure | with correct court form in writing (letter) indicate how many times you have requested indicate the name of defendant, date of next court date, court location, charge, date of offence, offence number, and officer name |
| what to consider before filing a relevancy application for additional disclosure | how is it going to help you defend your client is it critical to your ability to make a full answer and defense if i dont receive it will my client be prejudiced |
| when do you ask for additional disclosure | if something wasnt included in the disclosure package that you think is relevant if you need clarification on part of the disclosure (like if the officers notes were illegible or an unclear photo) |
| additional disclosure request letter must include ** | the date in which you received the initial disclosure |
| what to ask for in disclosure for offences such as failing to obey stop signs, disobey stop sign, red light fail to stop | request officers notes photo or video evidence if it exists witness statements if there were other witnesses aside from the officer |
| what do you ask for in disclosure for speeding offences (4) | 1. officers notes 2. copy of the testing procedures from the training manual related to the device that the officer used at the time ( to test how the officer decided that your client was speeding) 3. copy of maintenance records if available 4. if a pace, indication of calibration of speedometer |
| how do you file and serve a request for disclosure (3) | there are 3 ways 1. fax it to the prosecutors office 2. one copy via registered mail to prosecutors office (retain proof of delivery, one copy for you to file with charter application if necessary) 3. (preferred method) file it personally at the prosecutors office (get clerk to stamp it so you have proof that you filed it with the prosecutor) |
| trial or hearing structure (6) | 1. opening statement 2. evidence (direct examination/ examination in chief, cross examination, re examination) 3. submissions (can only refer to evidence, CANNOT INTRODUCE NEW EVIDENCE) 4 reasons for judgement - make the court spell out why they have decided what they did, case law referred to and evidence they heard (this will be what you use to appeal if you choose to appeal) 5. sentencing- legal argument, look to case law, can bring in character witnesses 6. ruling on sentence- the court must tell you hwy they came to that decision |
| prima facie table tells you _______ whereas a proof chart tells me _____________ | prima facie table - who may be able to give me what proof chart - who is going to give me what |
| what is covered in a proof chart | charge, elements, witnesses, documents |
| book of authorities | 1. law being relied upon filed with the court and defense in advance must include the cases on point that support your theory of the case and go against your theory table of contents and tabs included |
| qualifying an officer | establish their employer and that they were working on the sate of the offence, ask them if they made notes, add if they have changed the notes since, for what purpose are they referring to their notes, ask if they have an independent recollection of the events aside from the notes, ask the court to permit, continue with giving the evidence |
| What is a Jenkins caution? | The Crown is required to indicate that they are seeking jail and how much before commencing After cautioned, the court can decide to proceed to an ex parte trial, issue a bench summons, adjourn the hearing and issue a warrant for their arrest |
| True or false, in a PART I the disclosure is automatic | negative, you must request for the disclosure in writing |
| when must disclosure be provided | as early as possible |
| In offences such as failing to obey signs, disobey stop signs, red light fail to stop what must you request in disclosure | the officer's notes, photo evidence that the crown intends to use at trial |
| what is a will say | is a statement taken by the officer at length of time after the event. it can be taken in court that very day but must be disclosed to the defense |
| If a collision is involved what do you need to ask for in disclosure | officer's notes witness statements |
| How do you file and serve a disclosure request? | fax/ scan to prosecutors office make two copies, send one via registered mail to prosecutors office attend the courthouse with two copies hand them to the clerk at the prosecutors office |
| You have already received disclosure. Your client tells you that there was a second officer at the scene. What do you do> | request additional disclosure |
| what are the 4 types of pleas | early pleas pleas on trial day agreed statement of facts joint submission on penalty |
| If you plead guilty early what is likely to happen | you might get a lesser sentence |
| what shortens the proceeding? | agreed statement of facts |
| T/F in an agreed statement of facts the parties agree to all of the facts | false, the do not agree to all the facts |
| 4 main points for a joint submission on penalty | 1. discussed prior to the plea being entered 2. both parties must agree to it 3. used when the defense and crown agree that there could be triable issues 4. both parties believe that the penalty is reasonable |
| When should the JP jump a joint submission | when the submission is contrary to the public interest and would bring the administration of justice into disrepute |
| What are 8 possible sentencing options | fine incarceration probation impound the vehicle restitution costs suspended sentence creative sentencing |
| R v Dosik | the trial judge has the discretion to impose a sentence other than the set fine as set fine is statutorily reserved for those cases which do not go to trial or for those with mitigating factors Ex. relief against a minimum penalty if the convicted cant afford it |
| If there is no provision for the sentencinf range what do you look to | POA s 61 general penalties |
| What is the fundemental purpose of sentencing and where can you find this | specific and general deterrence s. 718 |
| Sentencing Goals | denounce unlawful conduct deterrence separate offenders from society reparations sense of responsibility in offenders |
| A sentence must be _________________ and ______________ | a sentence must be PROPORTIONATE TO THE GRAVITY OF THE OFFENSE and THE DEGREE OF RESPONSIBILITY OF THE OFFENDER |
| GENERAL DETERRENCE | message to the general public |
| specific deterrence | message to the defendant |
| what must the court always consider in sentencing (4) | general deterrence specific deterrence rehabilitation public safety |
| what is included in a pre sentencing report | background family education employment record physical and mental health motivations |
| How does a pre sentencing report come about | it is ordered by the court or requested by a paralegal |
| when is a pre sentencing report usually needed | serious offence if incarceration is involved |
| who prepares a pre sentencing report | probation officer |
| who goes first in a submission on sentence and what do they do | the prosecution ask for what they think is a reasonable sentence and why (give theri reasons) |
| what is the submissions on sentence order of procedures | crown goes first defense responds crown can reply |
| POA Act s 139(1) | part of the appeal process where one applies for costs, usually in the case of malicious prosecution or the defense will threaten this if they dont receive disclosure promptly |
| according to the criminal code section 722(1) what must the court do | consider victim impact statement |
| definition of victim | person who suffered loss as a result of the offence |
| can victims suggest sentences in their victim impact statements | negative |
| what are examples of aggravating factors (5) | criminal record plea on a trial date lack of remorse recently convicted of a similar offense disrespectful to the court process |
| 5 examples of mitigating factors | outstanding fines paid attended every court apppearance polite and cooperative with officer came to sentencing without needing a warrant issued completed rehab responsible for children |
| direct examination ___________________ | paints the picture |
| talk a little bit about direct examination | establish the facts be well prepared never ask a question you dpnt already know the answer to |
| cross examination ___________________ | erases the picture |
| cross examination | question opponents witness to tesst veracity and credibility of witness to obtain evidence not covered by opponent in direct examination dont have to cross examine it is a strategy |
| re examination _______________ | adds colour and clarity |
| re examination | cant introduce new facts witness given the chance to explain and clarify explain evidence iliccited in cross examination cant be used to make your witness look credible after cross right to re examine is not absolute |
| what is required for exhibits | must be qualified the author of the exhibit must be present so they can be cross examined on the content |
| steps to introducing an exhibit | establish context by steering the direct examination to the facts that the exhibit relates to set up the exhibit show the other side |
| submissions | review all evidence and law that you want to draw attention to cant present new evidence address the guilt of the accused beyond a reasonable doubt |
| the person who calls the evidence ______ goes first in submissions | last |
| the person who goes _________ gets to make a reply once opposing counsel finishes their submissions | first |
| what case is always referred to in submissions | r v wd |
| R v WD significance | 1. if the judge believes the evidence of the accused they must acquit 2. if the judge does not believe the testimony of the accused you must ask yourself whether on the basis of evidence that you do accept you are convinced BEYOND A REASONABLE DOUBT by that evidence of the guilt of the accused it all boils down to the reliability and credibility of the evidence of the witnesses****** RELIABILITY AND CREDIBILITY |
| What must be in your submissions | 1. what remedy you are seeking (guilty or or guilty) 2. dont consider the evidence of the opponent for these reasons 3. here is how the case my friend presented is different from this one 4. take the court through the highlights of your witnesses 5. tell the court the law taht supports your case |
| crown submission ex parte | your worship the crown has presented a prima facie case and there is no evidence to the contrary |
| note: defense submissions are the same but reversed |
Want to create your own Flashcards for free with GoConqr? Learn more.