This is happening across Canada because of a Supreme Court ruling earlier this year.
Many cases are being tossed out due to unreasonable delays, including murder, conspiracy, gangsterism…
As I write there are nearly 300 demands for stays due to delays in Quebec’s courts, so many that the province is going on a spree and hiring 2 dozen judges, dozens of Crown prosecutors, and hundreds of support staff.
In the example given by Personal, it was a clear and intentional violation of the accused’s right to consult his lawyer in private. That’s one of the fundamental rights of an accused and allowing the Crown to introduce evidence obtained in breach of that right would render the trial unfair.
English law allows the exclusion of evidence that has been obtained in a way that would render the trial unfair. The power to exclude comes from both the common law power of the courts to preserve the fairness of the trial, and s 78 of the Police and Criminal Evidence act 1984.
As Really Not All That Bright mentions, an application to exclude is made in advance of the trial, to the judge alone. The defence can therefore apply to exclude without prejudicing their case to the jury.
So I would think there is a basis to exclude the gun from evidence in England, same as in Canada and the US, based on the intentional violation of the accused’s right to consult his lawyer in private.
Text of s 78:
Here’s a handy summary:
There’s been a few cases where somebody did a serious crime, but was only given a slap on the wrist because at the time there wasn’t a law on the books for that specific crime and they had to punish them with a very minor crime instead.
I believe that was the case when that cult poisoned the salad bars in Oregon to win a local election in the 1980’s, even though around 800 people were poisoned there was no actual law against bio-terrorism at the time so they gave the ringleaders some election tampering charge and they got out within 2 years.
According to the wiki article, the two individuals who were charged in that Oregon case pled guilty to counts of attempted murder, first degree assault, second degree assault and food tampering. One was sentenced to 20 years for the attempt murder, 20 years for the first degree assault, 10 years for the second degree assault and 4.5 years for the food tampering. The second person received sentences of 15 for attempt murder, 15 for first degree assault, 7.5 for second degree assault and 4.5 years for the food tampering.
They were both released after 29 months, for good behaviour, which seems odd to me, but their sentences don’t strike me as “slap on the wrist” and they were charged with existing offences that matched their conduct.
This brings to mind the ILOVEYOU computer worm, which spread like, well, a virus in May 2000. It infected tens of millions of computers worldwide causing billions of dollars worth of damage. It was ultimately traced back to two computer programmers in the Philippines. Prosecutors couldn’t figure out what to charge them with. The closest law on the books dealing with electronic access was for credit card fraud, and this clearly wasn’t it. There was “malicious mischief”, but that had intent to cause harm and the accused claimed that release was accidental. There simply wasn’t a law against malware and, in the end, all charges were dropped. The Philippine Congress very, very quickly plugged the hole by enacting the E-Commerce Act.
A question about this point that you and the other lawyers have explained.
Given that this is how it works, how come all prosecutions don’t include all, or most of the lesser included offenses? e.g. why not a charge sheet that says “Premeditated murder. Or failing that, unpremeditated murder. Or failing that, manslaughter. Or failing that, assault. Or failing that, battery. Or failing that, mopery with intent to gawk. Or failing that, simple mopery.”
Given, especially in the US, rampant prosecutorial overreach and overcharging, it seems like stacking the greater and lesser charges this way would produce a nearly 100% conviction rate for something. Which though certainly not societally optimal would certainly be good news to many prosecutors’ careers.
It’s pretty much the civic version of the now-mostly-obsolete parenting dictum “Beat a child every day. Even if you don’t know what he did, he does.” Which deeply appeals to the nastier side of the US’s Puritan nature.
What’s the rest of the story on why isn’t this done?
I got a traffic ticket for not coming to a complete stop at a stop sign (in a different province) and it was 16 months before it got to trial. When I got to court that morning, the clerk read off a list of names (probably about half the people waiting there, including me) and said the charges were dismissed. I remember someone contesting a ticket in the early 1980’s got a court date within a month.
At a certain point things get beyond bad to stupid, but won’t change unless the supreme court puts its foot down. IIRC they did this same ruling about trial delays 15 years ago or more.
The previous government got all worked up about the fact that people who don’t make bail received credit on their sentence at time and a half for time served before a trial, and rescinded that “incentive” for the crown to get its act in gear.
As said earlier, one man’s loophole or technicality is another man’s basic justice or payback for improper use of power.
I can’t speak to that for the US system, because it’s different in Canada. The Crown does not have any discretion to exclude lesser included offences. Both the Crown and the defence can raise the issue of a lesser included, and it’s then a matter for the judge to decide if the option of the lesser included should be put to the jury. That’s part of the judge’s job to ensure a fair trial.
I do not know why US prosecutors would only go for the more serious offences.
Crown prosecutors in Canada are not elected and not subject to the political pressure to be tough on crime, so there is not the same pressure as may be the case in the US for prosecutors to seek a high conviction rate. The function of the Crown prosecutor is to put forward the case, but is not to seek a conviction at all costs.
Because sometimes you don’t want to make it easy for the jury to compromise. It is of course possible that the jurors legitimately believe that the state has not proven the top charge but did prove a lesser included offense. But it’s also possible that jurors might believe the state proved the top charge, but acquit on that one and convict on a lower one for reasons unrelated to the proof. For example, a jury might acquit on vehicular homicide and convict on driving while intoxicated, not because the state didn’t prove the homicide charge, but because jurors don’t want to brand someone a felon because of an “unfortunate accident”. Not charging the lesser included offenses makes it harder to do that - there are going to be some number of juries that would compromise on a lower charge that what was proven but wouldn’t outright acquit if they believed there was enough evidence to convict.
Why not?
We want the jury to reach a just result, not satisfy the prosecutor’s blood lust.
If they don’t want to go as high as the prosecutor wanted, and have to acquit instead, when they would have wanted something in-between, doesn’t that frustrate the role of the jury? To be the voice of the community standards?
I’m not talking about satisfying the prosecutor’s blood lust. I’m talking about a situation where the jury believes the prosecutor has proven the defendant’s guilt on the top charge but given the opportunity would acquit on that one and convict on a lesser one for reasons unrelated to the evidence of the crime. Maybe because we all drive drunk and it was just his bad luck that he killed someone. Or he just knocked the other guy to the ground and it’s just bad luck that he hit his head in exactly the right way that it killed him. Or sure, he beat her and almost killed her, but why should we ruin a college student’s life just because he beat up a hooker so let’s convict him of a misdemeanor assault rather than the felony assault he’s actually guilty of . And on and on. Seems to me that if it was the community standard that no drunken driver who kills someone should ever be convicted of any form of homicide. or that knocking someone to the ground should never result in a charge more serious than assault or battery, even if the victim ends up dead, then the laws would be written in a way that reflects the community standard.
From an earlier post of yours, it seems that in Canada the judge decides whether the lesser included options should be put to a jury. What are the reasons a Canadian judge wouldn’t give the jury the option of the lesser included offenses?
The only reasons a Canadian judge wouldn’t instruct on lesser included offences is (1) as a matter of law, the offence doesn’t qualify as a lesser included (which can be quite a technical legal issue in some cases); and (2) there isn’t evidence before the jury which would justify allowing the jury to consider it (note that this is a “no evidence” test, same as a non-suit, not a weighing of the evidence, which is not the judge’s job in a jury case).
Both Crown and defence may raise the issue of lesser includeds, and make submissions on the issue to the judge. But even if counsel do not raise the issue, the judge is under a duty to consider the issue of lesser includeds and to raise the issue on his/her own motion, take submissions from counsel, and then decide whether or not to put the lesser included to the jury.
The judge would not consider any of the factors you have raised as a reason not to put a lesser included to the jury. That type of analysis is irrelevant and certainly is not left to the prosecutor’s discretion.
The leading case on this is Head v The Queen. Speaking for the majority, McIntyre J stated:
(My bolding).
See Head v The Queen, para 3:
After all the talk in this thread we haven’t done a very good job actually answering the actual question.
And I can’t find a better example than Homolka, who drugged, raped and murdered her sister, and walked away with a slap on the wrist because the prosecution cut her a deal before they realized she was a co-conspirator rather than a fearful abused wife.
And how is that a technicality? A plea bargain is a careful process between Crown and accused. It creates substantive rights for both the Crown and the accused, in an adversarial process.
Once a formal agreement is reached, there is substantive law that says neither side can back out of it. The fact that the evidence later came to light that the Crown did not know at the time was a factual issue, but it doesn’t change the legal validity of the plea agreement.
And note that the phrase “slap on the wrist” here is being used to mean 12 years without parole…
I’d love a restatement of the actual question as you see it.
10 years - and she served it all - may be low for a series of premeditated murders, but it’s not “a slap on the wrist”.
What’s more ludicrous is that she blatantly mislead the crown attorneys, but rather than admit they’d been taken to the cleaners, they mounted a Canute-like publication ban on the mere existence of the deal; despite the fact that it was easy to find on the out-of-country internet sites.
The publication ban wasn’t about the plea bargain. It was about the details of the crimes, including the dismemberment of the victims. Nor was it done by the Crown. It was ordered by the court. The Crown has no power to impose a publication ban.
The prosecution service has said that if they had the video tapes, they would not have made the deal with Homolka, because the tapes showed her role, and also because the tapes would have provided the necessary evidence against Bernardo. Absent the tapes, they needed the testimony from Homolka to bring the case against Bernardo. That is one of the realities of prosecuting a case: sometimes the Crown has to deal with the devil to get the arch-demon.
I suppose some of our law-and-order true believers might suggest that going into court against an incompetent or dishonest prosecutor and prevailing in the case constitutes getting away on a technicality.
Forgot to include in previous post: rather than trying to cover up the plea bargain, as suggested by md2000, after the trial was over the Ontario government appointed a commission of inquiry to review all aspects of the plea bargain. The commissioner was a retired judge of the Ontario Court of Appeal.
In his report, released publicly, he concluded that on the facts known to the police and Crown at the time, the plea agreement was appropriate. He also concluded that the agreement did not come within the very limited grounds which would allow the Crown to disavow a plea agreement.