Chapter Two: The Adversary System

Chapter Two: The Adversary System

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  Two main types of system:
  
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    Continental (CT; Inquisitorial) Systems: state-managed
    
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    Adversarial System: party driven
    
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      Many processes that do not follow the adversarial but are more administrative
      
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      Criminal and civil law tend to be more tightly bound to adversarial system.
      
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  Contrasts:
  
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    Pre-trial investigation: responsibility of the police in CL and CT systems
    
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      In CL, Judicial involvement is limited; who decides what charges to lay?
      
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        Some jurisdictions (BC) where prosecutor decides; police usually decide in AB
        
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      IN CT, the investigation may be directed by a judge or prosecutor
      
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    Preliminary Inquiry: the stage of pre-trial procedure; serious cases only; determines if there is sufficient evidence to move the case to trial (Note: Constitutional exclusionary rules do not apply so not all evidence may stand up in court)
    
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      Optional – not automatic. Crown may proceed by “direct indictment.”
      
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      Never for Provincial Court; only for superior courts.
      
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      Acts a screening mechanism to weed out cases that ought not to go to trial.
      
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      Test is whether there is sufficient evidence for a reasonable jury to convict (low test). If not, there is a discharge.
      
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      Sometimes admissible in court if for example a witness is sick or telling a different story. Prelim can be used to cross-examine a witness.
      
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      Dossier: a written report of evidence, a record of pre-trial investigation; found in continental systems.
      
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    Trials:
    
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      Common Law: the focus for “fact-finding”
      
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      Continental: a later stage in the process
      
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  Party Choices:
  
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    If prosecution proceeds by indictment, the accused is entitled to chose between judge or judge and jury
    
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    In hybrid offences, the crown may elect to proceed summarily or by indictment; may proceed by direct indictment; may call no evidence; may stay proceedings…
    
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    The prosecution and the accused have the ability to terminate proceedings through a plea bargain. In continental systems the allowance of plea bargains was a subversion of legality and if there was enough evidence the accused should be tried.
    
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  Judges:
  
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    Common law systems are typically heard by single judge (or judge and 12 man jury)
    
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    Continental systems may employ one, to three judges, a jury of varying number or judges plus panelists
    
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  Parties:
  
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    Common law trials involve two parties (crown and defense); interveners allowed on appeals
    
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    Continental trials may have third + parties
    
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  Judge Managed vs. Party Driven:
  
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    Continental trials are managed by a judge who may lead questioning, call witnesses, etc.
    
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    Common Law trials are party driven (adversarial)
    
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  Both Common Law and Continental jurisdictions provide for the exclusion of evidence obtained through constitutional violations.
  
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  R vs. Swain:
  
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    Accused attacked his wife and two infant children in a bizarre manner.
    
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    Brought up the issue of whether or not the common law rule permitting the Crown to adduce evidence of insanity during trial, where the accused has not put sanity into issues, limited the accused’s rights under section 7 of the Charter. Are s. 7 rights engaged? Liberty interest in engaged because there is a risk of ending up in a mental institution or forensic institution.
    
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    Basic principles underlying our legal system are built on respect for autonomy of the person.
    
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    It is the accused, and not the lawyers or the Crown, that will bear the personal consequences of a conviction. Melmo-Levine: violate s. 7 because individuals have the right to make fundamental decisions.
    
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    The action of the Crown putting forth a defense the accused does not want brought fourth inevitably means they have lost control over the conduct of their defense. Courts competence is rooted in the adversary system by parties with a stake in the outcome.
    
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    Crown may only do this if the accused is not found fit to stand trial.
    
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    Lamer CJC found that the common law rule limited the accused’s rights and that the common law rule was NOT justifiable under section 1 of the Charter and struck it down.
    

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  Confidentiality:
  
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    2.03 (1): A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
    
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      a) expressly or impliedly authorized by the client;
      
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      b) required by law or a court to do so;
      
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      c) required to deliver the information to society; or
      
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    d) otherwise permitted by this rule.
    
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  Future Harm / Public Safety:
  
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    2.03 (3): A lawyer may disclose confidential information (but not more than is required) when the lawyer believes on reasonable grounds that an identifiable person or group is in imminent danger of death or serious bodily harm.
    
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  Advocacy:
  
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    4.01 (1): When acting as an advocate, a lawyer must represent the client resolutely and honorably within the limits of the law, while treating the tribunal with candor, fairness, courtesy and respect.
    
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    4.01 (2): When acting as an advocate, a lawyer must not:
    
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      d) knowingly assist or permit a client to do anything that the lawyer considers dishonest or dishonorable;
      
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      f) endeavor or allow another to endeavor to influence the decision of a tribunal in any case or matter by any means other than open persuasion as an advocate
      
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      g) knowingly attempt to deceive a tribunal or influence by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct;
      
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      i) knowingly assert as true a fact when its truth cannot be reasonably supported;
      
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      j) introduce facts or evidence a lawyer knows to be inadmissible;
      
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      k) make suggestions to a witness recklessly knowing them to be false;
      
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      m) counsel a witness to give untruthful or misleading evidence;
      
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      o) improperly dissuade a witness from communicating with other parties or from giving evidence or advising a witness to be absent;
      
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      p) knowingly permit a witness to be presented in a false or misleading way or to impersonate another;
      
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      s) needlessly abuse, hector or harass a witness;
      
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      t) attempt to gain a benefit for the complainant by threatening the laying of a criminal charge or by offering to seek or to procure the withdrawal of a criminal charge;
      
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      u) needlessly inconvenience a witness; …
      
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  Duty as Prosecutor:
  
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    4.01 (4): When acting as a prosecutor, a lawyer must act for the public and the administration of justice resolutely and honorably within the limits of the law while treating the tribunal with candor, fairness, courtesy and respect.
    
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    4.01 (5): A lawyer must not mislead a tribunal not assist a client or witness to do so.
    
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      B) upon becoming aware that a tribunal is under a misapprehension as a result of submissions made by the lawyer or evidence given by the lawyers client or witness, a lawyer must, subject to rule 2.03 (confidentiality), immediately correct the misapprehension.
      
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    4.01 (8): A lawyer for an accused or petential accused may enter into an agreement with the prosecutor about a guilty plea if, following investigation,
    
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      A) the lawyer advises his or her client about the prospects for an acquittal or finding of guilt.
      
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      B) the lawyer advises the client of the implications and possible consequences of a guilty plea and particularly of the sentencing authority and discretion of the court, including the fact that the court is not bound by any agreement about a guilty plea.
      
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      C) the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged; and
      
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      D) the client voluntarily instructs the lawyer to enter into a guilty plea.
      
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    4.01 (9): A lawyer must not counsel or participate in:
    
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      A) the obtaining of evidence or information by illegal means;
      
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      B) the falsification of evidence;
      
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      C) the destruction of property having potential evidentiary value or the alteration of property so as to affect its evidentiary value; or
      
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      D) the concealment of property having potential evidentiary value in a criminal proceeding.
      
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  R v. Murray:
  
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    Bernardo charges in connection rapes and murders.
    
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    Police searched Bernardo’s place very diligently. They didn’t come up with evidence they were looking for.
    
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    Bernardo tells his counsel where the video tapes are (in light fixture).
    
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    Murray (counsel) takes the videos and
    
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    Probably no problem with taking and reviewing the videos, however, Ken Murray hung onto these videos for 17 months. Murray withdrew as counsel and the tapes were given over to the new counsel who handed them into the police / crown.
    
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    Murray was charged with obstruction of justice and a disciplinary complaint charged with the Law Society of Upper Canada.
    
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    Ultimately acquitted. He did commit the actus reus of obstructing justice.
    
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    Mens Rea was doubtful. While Ken knew it would be obstruction to permanently keep the tapes the judge had a doubt whether he knew that he had to hand them over immediately or was allowed to keep them until trial.
    
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    No disclosure obligation on the accused to the crown.
    
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  R. vs. Felderhof: remove the judge presiding over the trial of John Felderhof, who made jurisdictional errors so serious, cumulatively, as to require the virtually unprecedented removal of the judge at the behest of the prosecutor in the middle of a trial. One accusation was that the judge failed to restrain uncivil conduct by defense counsel.
  
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    Civility is not just a nice, desirable adornment to accompany the way lawyers conduct themselves, but, is a duty which is integral to the way lawyers do their work.
    
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    Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society… conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.
    
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    Zealous advocacy on behalf of a client, to advance the clients case or to protect the client’s rights, is a cornerstone of our adversary system and is a mark of professionalism for a lawyer to firmly pursue the legitimate interests of their client.
    
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    2.02(2): A lawyer has a duty to provide courteous, through and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient, and civil.
    
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    4.01(6): A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.
    
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    6.02(1): A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the court of his or her practice.
    
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  Do Provincial ethical codes apply to Crown prosecutors (i.e. Provincial employees) or to Federal prosecutors?
  
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    Crown Prosecutors (who carry federal function but are provincially appointed) – YES!
    
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    Federal Prosecutors – YES!
    
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  Is conduct engaged in by prosecutors subject to review?
  
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    Prosecutorial discretion is NOT reviewable (unless there is an abuse of process).
    
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    Prosecutor’s trial tactics and conduct IS reviewable.
    
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    Prosecutor’s conduct – from the perspective of ethical rules – ARE reviewable.
    
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  R. vs. Nixon:
  
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    Crown and defendant entered into a plea bargain to a lesser charge to which the crown later repudiated (denied the validity of).
    
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    This repudiation was challenged as an abuse of process under s. 7 of the Charter which would require that there is conduct which either causes prejudice to the accused by rendering the trial unfair, or affects the integrity of the justice system itself.
    
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    Trial judge initially held that is was an abuse of process; overturned on appeal; upheld SCC.
    
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    Debate centered on whether the Crown’s repudiation is a matter of “prosecutorial discretion” reviewable only for abuse of process of a matter of “tactics and conduct before the court.”
    
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    Principle of Independence: requires that the AG “act independently of partisan concerns when supervising prosecutorial decisions” and how it “finds further form in the principle that the courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process.”
    
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    Subject to the abuse of process doctrine, supervising one litigant’s decision-making process- rather than the conduct of litigants before the court – is beyond the reach of the court.
    
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    Prosecutorial Discretion including the following: (decided in Krieger)
    
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      Whether to bring the prosecution of a charge laid by police,
      
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      The discretion to enter into a stay,
      
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      The discretion to accept a guilty plea to a lesser charge,
      
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      The discretion to withdraw from proceedings altogether, and
      
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      The discretion to take control of a private prosecution.
      
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      (Basically discretion involves decisions as to whether a prosecution should be brought and what the prosecution ought to be for.)
      
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      Theory behind it is that they are representatives of the Queen so they are the supreme executive authority – not subject to interference by the courts or legislation. Soverign independence of the Crown delegated to prosecutors. Is legislation, however, that the soverign has accepted saying that the Crown will be responsible / liable for certain actions.
      
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    It was decided that the Crown did have the authority to repudiate a plea bargain and that this would only be reviewable under abuse of process.
    
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    Two categories of abuse of process, which would be caught by s. 7 of the Charter: 1) prosecutorial conduct affecting the fairness of the trial; and 2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.”
    
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      Require different burdens of proof
      
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        Violation under the charter, burden of proof is balance of probabilities standard.
        
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        Common-law power to stay proceedings was the “clearest of cases” standard.
        
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        Remedy? Charter, s.24; whatever is appropriate and just in the circumstances.
        
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        Stay – only in the clearest of cases; where abuse is perpetuated or aggravated by continuing trial and no other remedy will be reasonably capable of removing prejudice / negative effects;
        
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    Information disclosed during a plea bargain generally not admissible in court.
    
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  The Police - Policing Generally:
  
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    In Canada, the primary enforcement of the criminal law is carried out by the police.
    
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    Types of Police Services:
    
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      1) Municipal Police (i.e. EPS): enforce provincial and federal laws, including Criminal Code and drug offences.
      
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      2) Provincial Police: not found in Alberta. Found in Ontario and Quebec.
      
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      3) R.C.M.P.: enforce federal laws; cooperate with provincial and municipal police services; also contract with provinces without provincial police services to enforce provincial laws (e.x. Sherwood Park).
      
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      4) C.S.I.S.: Canada’s civilian directed national security agency; concerned with espionage and sabotage, foreign- influenced activities, political violence and terrorism and subversion (????????); main concerns are investigation and information gathering, rather than prosecutions.
      
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      5) Other Police: includes railway and harbor police and military police services; also customs officers; some first nations have also constituted police services.
      
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      6) Private Security Organizations: private security firms that require various provincial and municipal licenses to carry on businesses; generally have no greater legal powers than ordinary citizens; some have applied for licenses to carry firearms during their work.