General Discussion and Theories

[expat cdn]

Sorry. You quoted my post so I felt compelled to respond.

: )

lol I did? I think I better call it quits. It's been a long day!

 

[Carli]

The crown decides whether to lay charges or not. When the police submit the Report to Crown Council it would be apparent if DM was wrongfully charged. There is no way if, DM is innocent and told DP, and he told Crown counsel that DM was totally un involved and they had the wrong man, the Crown would proceed.

There was a case of an American found with a gun boarding plane in London, ON and the crown decided not to prosecute and dropped charges. Just to show how the Crown can choose to lay or not lay criminal charges at their discretion. http://www.am980.ca/news/local/story.aspx?ID=1915594

The bottom line is if DM was innocent and proved it to DP, DP could go to the Crown attorney and say hey look, and the Crown could say yep, based on the police report and what you say, shows we have the wrong man.

Why do you believe the Crown would knowingly prosecute a man they know to be innocent if they were shown him to be innocent?

Only case like that was political and was Ian Thompson.

Respectfully, it is not correct to say that the Crown lays charges in Ontario. Even a private Canadian citizen can go to a Justice of the Peace and request that charges be laid against an individual. http://movementdefence.org/privateprosecutions but otherwise it is the police who lay charges. It is absolutely not the Defense Attorney's role to argue his client's case before the Crown attorney in an effort to convince the Crown of a client's innocence or to provide the Crown with the results of its own investigations or provide any information of any kind about a client's case. It is certainly never up to the Crown to privately determine, on its own, the guilt or innocence of the accused. The Crown's role, as the links earlier provided will show, is to serve as a sober second look at the evidence collected that incriminates the accused to the extent necessary for conviction or, should the evidence be inadequate, to order that charges be dropped.

In particular please note the following excerpt from a publication of the Office of the Attorney General of Ontario.
http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/CPMPreamble.pdf

The Role of Crown Counsel in Relation to the Police

Although Crown counsel work closely with the police, the separation between police and Crown roles is of fundamental importance to the proper administration of justice. The police investigate and lay charges where they believe on reasonable grounds that an offence has been committed. Crown counsel will carefully review all charges to ensure they meet the Ministry’s screening standard. Crown counsel proceed only with prosecutions which present a reasonable prospect of conviction and where the prosecution is in the public interest. A distinct line between these two functions, which allows both the police and Crown counsel to exercise discretion independently and objectively, forms part of a system of checks and balances. Given the current reality of large and complex police investigations, access to timely advice from Crown counsel in these cases may be crucially important. Special task forces often include and benefit from both Crown and Police participation, necessitating a close working relationship. The independence of roles and responsibilities, upon which the justice system depends, must be respected in any of these special working relationships.

I believe the case you mentioned illustrates the roles quite well. The police laid charges against a man carrying a weapon and he was held in jail. The Crown reviewed the police evidence and found it wanting with respect to threshold considerations, so the charges were dropped. With respect to the charges against DM and MS we understand that the police have not yet provided the Crown with the results of their investigations.

 

[Blomquist]

Yes. We know all about this. Just look up Karla Homolka.

moo

With respect, whilst you or I may know all about this...some posters may not. I think the site that was posted is interesting.....especially for posters who would like to know how the 'system' works. JMO MOO

 

[Archangel7]

Respectfully, it is not correct to say that the Crown lays charges in Ontario. Even a private Canadian citizen can go to a Justice of the Peace and request that charges be laid against an individual. http://movementdefence.org/privateprosecutions but otherwise it is the police who lay charges. It is absolutely not the Defense Attorney's role to argue his client's case before the Crown attorney in an effort to convince the Crown of a client's innocence or to provide the Crown with the results of its own investigations or provide any information of any kind about a client's case. It is certainly never up to the Crown to privately determine, on its own, the guilt or innocence of the accused. The Crown's role, as the links earlier provided will show, is to serve as a sober second look at the evidence collected that incriminates the accused to the extent necessary for conviction or, should the evidence be inadequate, to order that charges be dropped.

In particular please note the following excerpt from a publication of the Office of the Attorney General of Ontario.
http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/CPMPreamble.pdf

The Role of Crown Counsel in Relation to the Police

Although Crown counsel work closely with the police, the separation between police and Crown roles is of fundamental importance to the proper administration of justice. The police investigate and lay charges where they believe on reasonable grounds that an offence has been committed. Crown counsel will carefully review all charges to ensure they meet the Ministry’s screening standard. Crown counsel proceed only with prosecutions which present a reasonable prospect of conviction and where the prosecution is in the public interest. A distinct line between these two functions, which allows both the police and Crown counsel to exercise discretion independently and objectively, forms part of a system of checks and balances. Given the current reality of large and complex police investigations, access to timely advice from Crown counsel in these cases may be crucially important. Special task forces often include and benefit from both Crown and Police participation, necessitating a close working relationship. The independence of roles and responsibilities, upon which the justice system depends, must be respected in any of these special working relationships.

I believe the case you mentioned illustrates the roles quite well. The police laid charges against a man carrying a weapon and he was held in jail. The Crown reviewed the police evidence and found it wanting with respect to threshold considerations, so the charges were dropped. With respect to the charges against DM and MS we understand that the police have not yet provided the Crown with the results of their investigations.

Exactly my point. Crown has final say on charges laid by police, since no citizen brought neither murder charges nor theft against DM MS did they? That wasn't even being discussed.

Once again, if DM was innocent of the crime as charged or the wrong guy the crown shouldn't proceed simple as that.

How would DM convey his non involvement or that he was wrongfully charged? Through his lawyer DP to the Crown Counsel. If DM is properly charged, he will see court, if he's improperly charged he will not be prosecuted.

So apparently if DM is released he is not involved, if the Crown moves for trial DM was.

You said it best when it was pointed out as checks and balances between Police and Crown, ie Crown reviews police charges and decides to proceed, tell police find better concrete evidence, or drop the charges.

 

[skatergirl]

rsbm/bbm

I believe the case you mentioned illustrates the roles quite well. The police laid charges against a man carrying a weapon and he was held in jail. The Crown reviewed the police evidence and found it wanting with respect to threshold considerations, so the charges were dropped. With respect to the charges against DM and MS we understand that the police have not yet provided the Crown with the results of their investigations.

From article dated June 14th
His lawyer, Deepak Paradkar, told the court he expects to receive disclosure from the Crown within two or three weeks. However, Leitch said he expects it to happen next week.
http://www.thespec.com/news-story/3839297-clairmont-so-close-yet-so-far-from-answers-in-bosma-case/

 

[Carli]

Exactly my point. Crown has final say on charges laid by police, since no citizen brought neither murder charges nor theft against DM MS did they? That wasn't even being discussed.

Once again, if DM was innocent of the crime as charged or the wrong guy the crown shouldn't proceed simple as that.

How would DM convey his non involvement or that he was wrongfully charged? Through his lawyer DP to the Crown Counsel. If DM is properly charged, he will see court, if he's improperly charged he will not be prosecuted.

So apparently if DM is released he is not involved, if the Crown moves for trial DM was.

You said it best when it was pointed out as checks and balances between Police and Crown, ie Crown reviews police charges and decides to proceed, tell police find better concrete evidence, or drop the charges.

I suspect we may have been stuck on semantics with regard to who is empowered to lay charges, imo. However, again, it is never up to the accused to prove his innocence. It is up to the prosecutors at trial to prove the charges against him. That is the basis of our adversarial system. The Crown Counsel will determine whether or not to proceed on the path to trial based on various concerns including the substantiveness of evidence implicating the accused as provided by the police. This not to say there is no interaction between Crown and Defense Counsels. Initially, upon reviewing the evidence, the Crown could decide to proceed but on a reduced or lesser charge. Of course exchange between Defense and Prosecution is inevitable later on at pre-trial hearings and so on. But the kinds of "deals" that sometimes arise, such as plea bargains occur far along in the process and are usually arrangements that have an impact on sentencing, not the legitimacy of initial charges. MOO. Obviously, it's also inaccurate to say that the accused is involved with the crime if the Crown upholds the charges against him. Were that the case we'd have no need for judges or juries. MOO. Likewise, it is also not necessarily true that an accused is innocent simply because police were unable to gather enough evidence to convince the Crown of the need for trial. MOO.

 

[Archangel7]

I suspect we may have been stuck on semantics with regard to who is empowered to lay charges, imo. However, again, it is never up to the accused to prove his innocence. It is up to the prosecutors at trial to prove the charges against him. That is the basis of our adversarial system. The Crown Counsel will determine whether or not to proceed on the path to trial purely on the substantiveness of evidence implicating the accused as provided by the police. This not to say there is no interaction between Crown and Defense Counsels. Of course this is inevitable later on at pre-trial hearings and so on. But the kinds of "deals" that sometimes arise, such as plea bargains occur far along in the process and are usually arrangements that have an impact on sentencing, not the legitimacy of initial charges. MOO. Obviously, it's also inaccurate to say that the accused is involved with the crime if the Crown upholds the charges against him. Were that the case we'd have no need for judges or juries. MOO. Likewise, it is also not necessarily true that an accused is innocent simply because police were unable to gather enough evidence to convince the Crown of the need for trial. MOO.

Yep, semantics.
Since I'm not verified I'll simply say the semantics are from two sides of the issue and that my wording may have be seen/interpreted somewhat differently.

I agree that in absolute charged guilt only juries decide, with Tribunal exception.

I also know what happens if/ when the wrong person(innocent)is charged and LE and the DA get together, the DA says you guys(LE) have very weak to no evidence on this guy, have it in my hands by x hours or days, or he walks.

Not going to be any different here. Either they have enough to believe/show/prove he did it or they should let him walk.

Which brings this discussion full circle back to the likelihood DM did what he's charged for and why he will be tried. If he's innocent, framed, etc, the jury will see it, although if they will be able to see it this fall why can't the police see it now? Odd
IMO

 

[Sillybilly]

IMO I believe a lot needs to change in the justice system...I have received the same conclusion from lawyer friends of mine. Family Law courts for one...are way out of control IMO and the Criminal Courts are right up there too. IMO. I believe there is 'public opinion' not so much a court than a general way of thinking that has based itself firmly at the door of MSM. This is JMO of course....

With all the new legislation's and rights infringements coming along daily IMO it won't be too long before many will get a taste of being wrongfully charged. JMO

Just to clarify .. I was responding specifically to the right to remain silent as per Carli's question:

Am I right in understanding, then, that you think that the right to remain silent is an aspect of our Charter of Rights and Freedoms that should be changed?

 

[Carli]

Yep, semantics.
Since I'm not verified I'll simply say the semantics are from two sides of the issue and that my wording may have be seen/interpreted somewhat differently.

I agree that in absolute charged guilt only juries decide, with Tribunal exception.

I also know what happens if/ when the wrong person(innocent)is charged and LE and the DA get together, the DA says you guys(LE) have very weak to no evidence on this guy, have it in my hands by x hours or days, or he walks.

Not going to be any different here. Either they have enough to believe/show/prove he did it or they should let him walk.

Which brings this discussion full circle back to the likelihood DM did what he's charged for and why he will be tried. If he's innocent, framed, etc, the jury will see it, although if they will be able to see it this fall why can't the police see it now? Odd
IMO

Everything you ever wanted to know but didn't dare ask about Disclosure and the Role of the Crown Attorney in Canada....

http://www.justice.gov.nl.ca/just/prosect/guidebook/009.pdf

As you see, the regulatory demands are quite extensive and include consideration of a number of issues affecting the likelihood for conviction of which police evidence is only one component.

There are also time pressures associated with Disclosure which, theoretically at least, should serve to prevent an accused being incarcerated for extended periods while investigators go fishing for evidence. (The principal of "Justice delayed is justice denied.")

Note:

Ongoing Investigations:

"Information that may prejudice an ongoing police investigation should not be disclosed. It is important to note that the Crown may delay disclosure for this purpose but cannot refuse it i.e. withhold disclosure for an indefinite period. Any delays in disclosure, however, should be rare."

and

Investigative Techniques:

"Information that may reveal confidential investigative techniques used by the police is generally protected from disclosure."

 

[Peace777]

I drive past the farm every day. In the last few weeks I have not seen any kind of activity. One thing I have noted is that there is a piece of equipment on there (quite possibly the Hough loader the police had on site is still there,--its hard to tell from the road as there is a burm at the roadside and the brush has grown but it is black/gold and appears the same as photos from the Toronto search photos) parked beside the barn that was not there prior to Toronto search Please correct me if I am wrong (I have searched all photos on this site), but don't see any black/gold equipment prior. Also today as I was heading home, a big black Undercover SUV pulled out in front of me from the site. So, police keeping equipment on site ???

Hmm interesting so there is still an on going investigation at the barn/farm? But looking for what? They've already said no sign of the girl there Hmmm I hope we find out soon what else is going on in the case

 

[Snoofo]

I am very surprised there have been no further "leaks" or reports from unnamed sources. It's good, but I find it odd. Nothing useful to throw out there even for LE's own benefit?

The case is so well known and talked about generally. I dont think MSM ever got tired of the story but maybe tired of noone talking.

 

[Annie1004]

Yep, semantics.
Since I'm not verified I'll simply say the semantics are from two sides of the issue and that my wording may have be seen/interpreted somewhat differently.

I agree that in absolute charged guilt only juries decide, with Tribunal exception.

I also know what happens if/ when the wrong person(innocent)is charged and LE and the DA get together, the DA says you guys(LE) have very weak to no evidence on this guy, have it in my hands by x hours or days, or he walks.

Not going to be any different here. Either they have enough to believe/show/prove he did it or they should let him walk.

Which brings this discussion full circle back to the likelihood DM did what he's charged for and why he will be tried. If he's innocent, framed, etc, the jury will see it, although if they will be able to see it this fall why can't the police see it now? Odd
IMO

The posters on this thread are extremely knowledgeable about the law! You must be lawyers. I practiced both corporate and civil law some time back in California for longer than I care to admit. From everything I have read here, you guys are spot on (but I am still learning because this is Canadian criminal law), so thank you for your informed posts!

Annie

 

[Archangel7]

Thanks for the kind words and since you referenced my post allow me this disclaimer, so as to not wrongly influence the thread(s)....

I am not a lawyer, nor do I practice law.

 

[Eljo]

Thanks for the kind words and since you referenced my post allow me this disclaimer, so as to not wrongly influence the thread(s)....

I am not a lawyer, nor do I practice law.

Really?? I'm actually very surprised at that! And that s a compliment!

 

[Archangel7]

Really?? I'm actually very surprised at that! And that s a compliment!

Thank you also for the kind words and the compliment.
No, never a lawyer. But always on the right side of the law, just to prevent the wrong kind of speculation. lol

 

[Eljo]

Thank you also for the kind words and the compliment.
No, never a lawyer. But always on the right side of the law, just to prevent the wrong kind of speculation. lol

:floorlaugh:

 

[Archangel7]

:floorlaugh:

I had to, you people are such good sleuthers, I thought I'd better qualify that post and fill the vacuum before it got out of hand. lol

 

[Blomquist]

I suspect we may have been stuck on semantics with regard to who is empowered to lay charges, imo. However, again, it is never up to the accused to prove his innocence. It is up to the prosecutors at trial to prove the charges against him. That is the basis of our adversarial system. The Crown Counsel will determine whether or not to proceed on the path to trial based on various concerns including the substantiveness of evidence implicating the accused as provided by the police. This not to say there is no interaction between Crown and Defense Counsels. Initially, upon reviewing the evidence, the Crown could decide to proceed but on a reduced or lesser charge. Of course exchange between Defense and Prosecution is inevitable later on at pre-trial hearings and so on. But the kinds of "deals" that sometimes arise, such as plea bargains occur far along in the process and are usually arrangements that have an impact on sentencing, not the legitimacy of initial charges. MOO. Obviously, it's also inaccurate to say that the accused is involved with the crime if the Crown upholds the charges against him. Were that the case we'd have no need for judges or juries. MOO. Likewise, it is also not necessarily true that an accused is innocent simply because police were unable to gather enough evidence to convince the Crown of the need for trial. MOO.

Exactly right as I see it....The crown is in it to win it, thus will lessen the charges if it feels they cannot win. Plea deals are often offered at or before Prelims and are usually as a way for the crown to secure a win as opposed to losing at the trial. Defense can also cross question the police if they feel there are some errors in the process of obtaining the warrant etc.... as per a Dawson Application which allows the defense to make sure that everything was done as it should have been done. Also any Charter violations that have occurred along the way, for example a Section 11b (right to a speedy trial) will be addressed at the trial itself.

The Crown rarely lets go of a case IMO ....would rather settle for a plea than release the jaw grip totally. JMO

Agreed with your post totally Carli.

 

[Annie1004]

Really?? I'm actually very surprised at that! And that s a compliment!

I just re-read a couple of his recent posts and i am surprised, too. He and several others sure know what they are writing about vis-a-vis Canadian law. Fascinating and quite educational.

I do have a question: Don't the Canadian courts keep everything under wraps until after a verdict is rendered? Although it's not ideal for sleuthers, it allows for a lot less sensationalism like we have here in the States. We have gag orders, they have publication bans, eh?

 

[Blomquist]

I do have a question: Don't the Canadian courts keep everything under wraps until after a verdict is rendered? Although it's not ideal for sleuthers, it allows for a lot less sensationalism like we have here in the States. We have gag orders, they have publication bans, eh?

Yes thats pretty much the case. Although as is probably the case in US anyone can attend the court (space permitting) and hear everything first hand. Occasionally there is a private trial/hearing and people are barred from entering.
MOO