Difference between revisions of "Canada"

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==Background==
 
==Background==
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==References==
 
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*The prison population rate of Canada is 39,132 with every 117 per 100,000 people in prison
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*36.2% of Canadian prisoners are pre-trial detainees and 4.9% are juvenile prisoners
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*Canada currently has 172 prison institutions with an official capacity of 35,190 prisoners. The current occupancy level of Canadian prison institutions is about 91.3%
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Revision as of 12:06, 24 February 2011

Background

Canada is a member of the British Commonwealth of Nations and is comprised of ten provinces and three territories. [1]The Canadian capitol is located in Ottawa and the country ranks as the world’s second largest nation, after Russia (World Factbook). In 1867, Canada became a self governing nation within the Commonwealth and since then has continued to develop at a similar rate as the United States to the south (World Factbook). The head of state of Canada is Queen Elizabeth of England and the head of government is Prime Minister Stephen Joseph Harper (World Factbook). 58.8% of the Canadian population speaks French while 21.6% of the population (mainly located in the province of Quebec) speaks French (World Factbook). Approximately 46% of the Canadian population is of European descent, while 26% is of mixed descent and 6% is of Asian, African, or Arab descent. [2]

Type of System

Canada’s legal system is based on English common law, except in the province of Quebec which applies a model of French based civil law. [3] Canada’s criminal law and procedure is included in a criminal code that has been in effect since 1862. [4] Where the criminal code is deficient, the courts use interpretations of the Canadian Charter of Rights and Freedoms and common law to make decisions.

Sources of defendants’ rights

The Canadian Charter of Rights and Freedoms provides Canadians with basic rights and protections against police actions. For example, the Charter provides rights against unlawful searches and seizures, protection from arbitrary detention, the right to counsel after arrest or detention, the guarantee to a fair trial, and the right not be denied reasonable bail. [5] All actions that do not respect the rights awarded by the Charter are deemed unlawful. [6]

Pre-trial phase

Section 495 of the Canadian Criminal Code gives police officers the right to arrest an individual without a warrant if the officer has reasonable suspicion that the individual has, is about to, or is in the act of committing a crime. [7]Therefore, most arrests are made without warrants. [8]The Charter does not give Canadian police officers any statutory powers to stop and detain either individuals or vehicles. They also have no statutory powers to detain and question individuals. Canadian common law states that a police officer may question the detainee and ask for identification, but the detainee has the right to silence and is not required to cooperate. [9] Furthermore, Section 10(a) of the Charter states that an arrested individual must be informed of the reason for their arrest. [10]


Section 8 of the Charter states that “everyone has the right to be secure against unreasonable search or seizure”. In the event that an invasion of privacy is required in order to complete a search, a search warrant must be obtained. [11]


Article 9 of the Canadian Charter of Rights and Freedoms states that everyone has the right not to be arbitrarily detained or imprisoned. [12] Detention, according to the Canadian Charter, includes the deprivation of liberty, the assertion of control over another person, and the proposal of demands that carry legal significance. [13]


Section 10(b) of the Charter declares that individuals who have been detained have the immediate right to legal counsel and must be informed of that right promptly at the time of arrest. [14] Once a detainee asks for a lawyer, the arresting officer cannot ask him any more questions, but must enable the detainee to access legal counsel through the use of a telephone. [15]

Court Procedures

After an arrest, the Canadian police must release the suspect as soon as possible, unless detention is necessary in order to discern identity or obtain evidence. [16] Additionally, an arrested person must be brought before a judge either within 24 hours, or as soon as possible. [17] Police officers and prosecutors draw up indictments and informations in Canada. There is no grand jury and the courts recognize that the police are independent from the executive in instances of decisions to lay charges. Additionally, court proceedings may be canceled if there has been irreversible damage to either the defendant’s rights or to the integrity of the judicial system. [18]


Preliminary hearings in the Canadian legal system are only allowed for indictable offenses in cases where the accused has opted to be tried in the Supreme Court with a preliminary inquiry. There has been recent debate, however, on whether or not preliminary inquiries should be abolished due to new disclosure requirements and the increasing length and cost of trials. [19] Pre-trial motions are used most commonly in instances of matters related to the Charter according to local laws of procedure. [20]


In the 1990 Stinchcombe case, the Canadian Supreme Court ruled that Section 7 of the Charter requires prosecutors to disclose relevant evidence to the defendant at an early stage of the trial. Relevant evidence is determined to be evidence that could possibly be useful to the accused. Canadian law does not recognize a difference between inculpatory and exculatory evidence. [21] Canadian trials are adversarial in nature. Trials are typically conducted according to a model in which the lawyer presents evidence to a judge who presides without a jury. The judge then decides whether or not the evidence is admissible. [22]


If the defendant is accused of an indictable crime, he may elect to have a trial by jury. Section 11(f) of the Charter additionally provides that a defendant may have a trial by jury if he faces a minimum imprisonment of five years and is not charged with a crime under military law. [23]


Section 7 of the Canadian Charter of Rights and Freedoms states that a defendant has the right to answer and defend themselves fully. [24] The defendant also has the right to be present at the trial, as long as they do not exhibit disruptive behavior. [25]


Section 10(b) of the Charter states that an accused has the right to legal counsel at the time of arrest, but does not have the right to counsel at the trial stage for if they cannot afford representation. [26]However, the Charter also gives the accused the right not to be deprived of liberty, thus making Section 10(b) a violation of the principles of fundamental justice.[27]


Witnesses may be subpoenaed in order to testify for either the prosecutor or the defense. These witnesses, however, do not have the right to refuse to testify in order to avoid self incrimination. Expert witnesses may be chosen and paid to testify by the party that has hired them. [28]


Every person who has been the victim of a crime has the right to begin a prosecution against the person that they believe has committed the crime. Victims are additionally allowed to make “victim impact statements” and the Criminal Code was revised in 1999 to require judges to inform victims of their right to make such statements. [29] In some cases, the defendant may be required to make restitution to the victim. <Canadian Criminal Code, section 738</ref>


All Canadian judges must have at least ten years of experience at the Canadian Bar and are appointed to their positions. [30]


Appeals that are made from the provincial courts to superior courts are first made to the provincial court of appeal and then to the Supreme Court of Canada. [31] Section 11(h) of the Charter states that the defendant is protected from double jeopardy only if they have been fully acquitted after all appeals. [32]

References

  1. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  2. CIA World Factbook available at www.cia.gov/library/publications/the-world-factbook
  3. CIA World Factbook available at <www.cia.gov/library/publications/the-world-factbook>
  4. RSC 1985
  5. Canadian Charter of Rights and Freedoms, Articles 7, 8, 9, 10, and 11
  6. Constitution Act, 1982 section 52(1)
  7. Canadian Criminal Code, section 495
  8. Craig M. Bradley, Criminal Procedure A Worldwide Study 60 ( 2d ed., Carolina Academic Press 2007)
  9. Craig M. Bradley, Criminal Procedure A Worldwide Study 58 ( 2d ed., Carolina Academic Press 2007)
  10. Canadian Charter of Rights and Freedoms, section 10(a)
  11. Craig M. Bradley, Criminal Procedure A Worldwide Study 66 ( 2d ed., Carolina Academic Press 2007)
  12. Canadian Charter of Rights and Freedoms, article 9
  13. Craig M. Bradley, Criminal Procedure A Worldwide Study 77 ( 2d ed., Carolina Academic Press 2007)
  14. Canadian Charter of Rights and Freedoms, section 10(b)
  15. Canadian Criminal Code Section 34 (3d) and Canadian Criminal Code Section 385
  16. Canadian Criminal Code, sections 497-499
  17. Canadian Criminal Code Section 503
  18. Craig M. Bradley, Criminal Procedure A Worldwide Study 80 ( 2d ed., Carolina Academic Press 2007)
  19. Craig M. Bradley, Criminal Procedure A Worldwide Study 81 ( 2d ed., Carolina Academic Press 2007)
  20. Craig M. Bradley, Criminal Procedure A Worldwide Study 82 ( 2d ed., Carolina Academic Press 2007)
  21. Craig M. Bradley, Criminal Procedure A Worldwide Study 82 ( 2d ed., Carolina Academic Press 2007)
  22. Craig M. Bradley, Criminal Procedure A Worldwide Study 83 ( 2d ed., Carolina Academic Press 2007)
  23. Canadian Charter of Rights and Freedoms, section 11(f)
  24. Canadian Charter of Rights and Freedoms, section 7
  25. Criminal Code section 650
  26. Canadian Charter of Rights and Freedoms, section 10(b)
  27. Craig M. Bradley, Criminal Procedure A Worldwide Study 84 ( 2d ed., Carolina Academic Press 2007)
  28. Craig M. Bradley, Criminal Procedure A Worldwide Study 85 ( 2d ed., Carolina Academic Press 2007)
  29. Canadian Criminal Code, section 722.2
  30. Craig M. Bradley, Criminal Procedure A Worldwide Study 85 ( 2d ed., Carolina Academic Press 2007)
  31. Craig M. Bradley, Criminal Procedure A Worldwide Study 86 ( 2d ed., Carolina Academic Press 2007)
  32. Canadian Charter of Rights and Freedoms, section 11(h)


QUICK FACTS


  • The prison population rate of Canada is 39,132 with every 117 per 100,000 people in prison
  • 36.2% of Canadian prisoners are pre-trial detainees and 4.9% are juvenile prisoners
  • Canada currently has 172 prison institutions with an official capacity of 35,190 prisoners. The current occupancy level of Canadian prison institutions is about 91.3%
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