Wednesday, January 14, 2015

Justice System Comparisons #1: If Meredith’s Murder Had Taken Place In Common-Law Countries

Posted by Chimera



Supreme Court Of Canada in the capital Ottawa

Overview Of This Post

Much has been made about the differences between the American and Italian criminal justice systems.

This post offers some different perspectives, from the Canadian system, the one I know most about as I reside in Canada, as do many readers here. While I am not a lawyer, I do know a fair amount about the system here.  Enjoy this multi-part submission.

I explain first the Canadian system, and then what would have happened to those accused of Meredith’s death under this system.  I am making no judgements as to which system is the best, as all have their pros and cons.  Please take this article as a source for broadening perspectives.

Some History Of Our System

a. Canada is part of the British Commonwealth.  Although the Queen of England is still our official head of state, and her representative, the governor general, the head of Canada’s military, the roles are largely figurative.

b. Although most of Canada is governed by Common Law, from the British model, the province of Quebec uses its own regulations, based largely on the Civil Code from Napoleonic times. 

c. Because of the differences in the Common Law and Civil Codes, by law, the Supreme Court of Canada MUST contain both judges from Quebec and from the other provinces.

d. Although in the past cases settled in the Supreme Court of Canada could still be appealed to the UK, that is no longer the case.

Is Criminal Law a Federal, Provincial, or Municipal matter?

Criminal Law is made up, and amended exclusively by the federal government, however, administrating the courts, and trying cases is a provincial matter.  The rules spell out clearly what is a federal v.s. provincial responsibility.  Stepping outside these boundaries often leads to tension, and having the new rules struck down.

Are prisons and probation/parole offices federal or provincial?

It depends on the sentence.  A jail term of 2 years or more is a federal sentence, in which case federal corrections is put in charge of the person.  Naturally, these are for much more serious or repeat crimes.  A jail term (or conditional sentence) of under 2 years is a provincial sentence, and the respective province deals with the person.

Probation and parole rules and regulations are set out differently, and it depends on what the person has received in terms of prison time.  If no prison time is given, then probation is the responsibility of the province.

How Are Offences Classified?

Offences in Canada are classified as such in the criminal code

  • 1. Summary Offences: Minor in nature, in America called a ‘‘misdemeanor’’
  • 2. Indictable Offences: Much more serious, in America called a ‘‘felony’‘
  • 3. Hybrid Offences: The prosecutor has discretion in how to proceed
Who hears criminal appeals in Canada?

The appeal will likely be heard in the province’s court of appeals, the provincal ‘‘top court’‘.  Please do not mistake ‘‘provincial supreme court’’ as being the top court, as it is not the same thing. 

A trial court hears witnesses, while an appeals court is called a ‘paper court’.  It works from transcripts.

1. Generally, there are 2 main trial courts, the lower court, and the higher (Superior or Supreme) court.  As the names imply, the lower courts generally take on less serious cases, while the higher courts take more serious cases, such as murder.

2. If a case is tried summarily (a less designated case) and in the lower court, the case may be appealed to either the Provincial Court of Appeals, or to the High Court (Superior or Supreme)

3. If a case is tried by indictment (felony), or in Superior/Supreme Court, then appeals MUST go to the Provincial Court of Appeals.

    (a) For example, a major case in Ontario will be tried in Ontario Superior Court, and if appealed, it will go to the Ontario Court of Appeals. 
    (b) For example, a major case in British Columbia will be tried in the BC Supreme Court, and if appealed, will go to the BC Court of Appeals.
    (c) Other provinces also have trial courts, then a court of appeals

4 In any case, it may be further appealed to the Supreme Court of Canada

    For some perspective: Imagine Amanda Knox lived in Toronto, Ontario. 

    Her rock throwing riot in Seattle, if here would likely have landed her in the Ontario Court of Justice, and the prosecutors would likely have gone summarily against her, although a more serious charge (assault) would be a hybrid offence.  If she chose to appeal, the Superior Court (which is also a trial court), would likely hear her appeal.

    Her sexual assault and murder charges, if in Ontario, would automatically have been tried as indictable offences and she would be in Superior Court.  Her first appeal would be with the Ontario Court of Appeals

5. A defendant has the right to appeal a criminal conviction to the provincial appeals court.  However, this is more like the U.S. than Italy, in that these appeals are not automatically granted.  The Court first has to determine that there is some merit to the appeal.  If it is baseless, it will be dismissed.  In the case of Knox and Sollecito, it would likely not be allowed to proceed.

6. A defendant has the right to appeal to the Supreme Court of Canada after a Provincial Court of Appeals rules.  However, the S.C.C. usually declines to intervene, unless the facts are extremely controversial, or of significance.  This is especially true if it is just a rehash of the Provincial appeal.

What are your rights if arrested in Canada?

Section 10 of the Charter of Rights and Freedoms says that you have the right to be informed of the reason, the right to retain a lawyer without delay, and have the validity of the detention challenged by way of habeas corpus.

Are people’s name shielded from press?

In some circumstances

  • The person was a minor at the time of the offence (though an adult sentence annuls that protection)
  • In sexual assault cases, the victim(s) name(s) CANNOT be released publicly
  • In highly sensitive cases (like treason or terrorism)
  • If it would put someone in danger or compromise a witness
Can you give press conferences or talk to the media if accused of a crime?

While possible, this is not recommended.  For example, and appeals about adverse publicity or not being able to get a fair trial will not be taken seriously.  Also, contempt charges will be quite likely. 

While the media does cover serious cases, the coverage has generally been pretty neutral in Canada.

Can you write a book or get a movie deal?

No these deals would be considered profit or proceeds from crime.

Can you be forced to take the stand in Canada?

As a defendant, no.  11(c) of the Charter of Rights and Freedoms protects against forced self incrimination (in America, it is called ‘‘taking the 5th’‘).

Interestingly enough, there are no real protections for witnesses who just don’t want to testify.

Does Canada grant bail to accused criminals?

Usually. 11(e) of the Charter of Rights and Freedoms states that reasonable bail should not be denied without just cause.  In practice, this means unless the person is a flight risk, a threat to the public, or the offence is extremely shocking to the public, they can get bail.

However, if a person has a prior criminal record, it becomes harder to get bail each time.

Note: Bail hearings are usually done by J.P.s (Justices of the Peace).  They are not judges, but can make some legal decisions.  Bail decisions can usually be appealed to a judge,

Does Canada have the ‘Double Jeopardy’ law?

Yes and no.  Refer to 11(h) in the Charter or Rights and Freedoms.  It says that if a person is finally acquitted of the offence, or finally found guilty and punished, not to be tried again for the same offence.

The key word here is finally, as in, all appeals have been exhausted.

The appeal will likely be heard in the province’s court of appeals, the provincal ‘‘top court’‘.  Please do not mistake ‘‘provincial supreme court’’ as being the top court.  That is an American naming.  For example, a major case in Ontario will be tried in Ontario Superior Court, and if appealed, it will go to the Ontario Court of Appeals.

If a person is convicted, and chooses to appeal, that case will likely be heard by the provincial court of appeals.

Note: Notice of an appeal must generally be filed within 30 days of the verdict.  If no notice is filed, then the acquittal/conviction is considered final.

Note: It is possible, but very rare for a prosecution to appeal an acquittal, or to appeal a Provincial Appeal Court ruling.  Basically, the prosecution must prove that the trial court (or first appeal court) made fundamental and very serious legal errors.  It cannot just be a another shot at a conviction.  The Appeal Court can then do many things, including sending it back for a retrial, amending the sentence, or throwing out a conviction.  Or it can confirm the acquittal.

Does Canada have a plea bargaining system?

Yes, Crown Prosecutors and defence attorneys can sign what is called a ‘‘joint submission’‘, and give it to the judge.  This is an agreement of the facts and sentence.  While judges usually accept these submissions, they are not obligated to, and can reject them if far too lenient or harsh.

Can defendants testify or make spontaneous declarations?

They can testify (and must be sworn in), but they cannot make the kind of challenge free remarks like in Italy.

Does the short form trial exist in Canada?

As in the 1/3 deduction… No.  However, judges routinely give breaks for guilty pleas, or for some kind of remorse or contrition.

There is a diversion program, which is an alternative to going through the trial process (essentially getting treatment), but reserved for minor offences.  Sexual offences, or serious violent ones are not eligible.

Do defendants awaiting trial get psychologically assessed?

Sometimes, and it can happen for a few reasons

    (1) The defendant is pleading not criminally responsible (insanity)
    (2) The defence has applied for bail, but the judge has reservations about granting it
    (3) The defence wants to use it as a mitigating factor, or in sentencing
    (4) Prosecutors can request it, but this is rare
Can an Appeals Court increase a jail sentence?

This is extremely rare, but yes they can, if the opinion is that the trial judge simply went too soft.  A couple cases in Canada are these:

    Paul Coffin who pleaded guilty to 15 counts of fraud, related to the previous Liberal government.  He originally got house arrest, but it was overturned on appeal, and substituted for 18 months of real jail time.

    Graham James a notorious pedophile and infamous hockey coach who sexually abused his players.  He got 2 years at one trial, which the prosecution appealed, and had increased to 5 years (still very light though)

Much more common though, is that an appeal will either be dismissed, of the judges will knock some time off the sentence.  Full reversals are not the norm.

Do judges have to justify a conviction/acquittal and a sentence?

Yes, in a bench trial (trial by judge), the judge does have to explain how he/she came to these conclusions.

Yes, there are fairly rigid sentencing guidelines to follow, and (cc 718), follow these:

    (a) to denounce unlawful conduct
    (b) to deter the offender and others from committing similar conduct
    (c) to separate offenders from society, where necessary
    (d) to assist in rehabilitating offenders
    (e) to provide reparations for harm done to the victims and the community
    (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community

Note: Many serious offences have mandatory minimum jail sentences, which limit the discretion available to the judge.

What is the punishment for killing someone in Canada?

1. First degree murder:

This is a premeditated murder, or happens during a sexual assault, or when the victim is restrained.

Punishment: A life sentence, with no parole for 25 years (or 15 years under the ‘‘faint hope clause’‘)

2. Second degree murder

This is when the act is intentional, but not planned out

Punishment: A life sentence, but the parole eligibility baseline ranges from 10 to 25 years.

3. Manslaughter

This is not an intentional killing, but happens while committing an illegal act

Punishment: No mandatory minimum, but can get prison up to and including life.

Note: There are other things, such as impaired driving causing death, dangerous driving causing death, criminal negligence causing death, and the punishments are severe, but they do not apply here.

(Quoted directly from the Canadian Criminal Code)


Classification of murder

231. (1) Murder is first degree murder or second degree murder.
Marginal note:Planned and deliberate murder

(2) Murder is first degree murder when it is planned and deliberate.
Marginal note:Contracted murder

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.
Marginal note:Murder of peace officer, etc.

(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
Marginal note:Hijacking, sexual assault or kidnapping

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).

    So, without even proving intent to commit murder, Knox, Sollecito and Guede would have been guilty of first degree murder.  Meredith’s death happened under cc 231(5)(c), which is sexual assault with a weapon, cc 231(5)(d), which is aggravated sexual assault, and cc 231(5)(e), which is forcible confinement.

    Note: While in the case of AK/RS/RG, the sexual assault charge was combined with the murder charge, in Canada, aggravated sexual assault, cc 273, is an indictable offence, punishable by up to life in prison, and those convicted are registered sex offenders for life upon release.

    Other Punishments

    While Canada no longer has the death penalty, we do have something called a dangerous offender designation.  The prosecution applies for it, after a conviction, and a judge may or may not grant it.  Essentially, it is a special title, saying that the person presents a high risk to the public and should be locked up indefinitely.

    Many killers have gone received life sentences without the dangerous offender title, but many (violent) criminals have gotten the dangerous offender title without killing anyone.

    We also have ‘‘long term offender’’ designations, which are meant to keep someone on probation for a long time (up to 10 years).  These are usually reserved for sex offenders.

    So To The Probable Scenario In Canada

    If Knox, Sollecito and Guede had committed this crime in Canada, all of the following conditions would probably apply:

    • They would be arrested, would have to be informed why, and could contact an attorney as soon as they reached the police station

    • Because the murder happened during a sexual assault, while Meredith was restrained, it would be 1st degree murder

    • Because of the sexual assault and restraint, premeditation would not be necessary to prove 1st degree murder

    • They could apply for bail (before a J.P.), but under the circumstances, would likely be denied

    • They could appeal to a judge for a review of the bail, but again, would likely be denied

    • Because of the serious nature, the trial would be in the provinces Supreme/Superior Court

    • There is no fixed time before a trial would start.  Murder trials have been known to start 2-5 years after arrest

    • Defendants could testify against each other, and prosecutors could make deals with them

    • The kind of antics that went on in the 2009 trial would not be tolerated

    • The defendants could testify under oath, and be cross examined, but free statements are not allowed

    • If found guilty, all 3 would receive life sentences, and MUST serve 25 years before parole eligibilty.

    • There is ‘‘faint hope’’ which is parole after 15 years, but a murder like this would definitely not qualify

    • Because of the sexual assault component, they would be registered sex offenders for life

    • They would be prohibited from owning weapons for life

    • If any chose to appeal, it would go to the province’s Court of Appeals

    • They could apply for ‘‘Appeal Bail’‘, but it would likely be denied

    • If the Hellmann Appeal is any indicator, the appeal grounds are so weak the appeal would be dismissed

    • They could try the Supreme Court of Canada, and likely get declined


    In Conclusion

    This a brief overview of how criminal law works in Canada and how it could have worked in Meredith’s case. Quite smilar to the U.S., but then both systems are based on English Common Law.


    Complete Listings

    1st post appears here:  An Overview.

    2nd post appears here:  Public Mischief and Perjury

    3rd post appears here:  Bail, Extradition & Other Crimes

    4th post appears here:  Canada v.s. the U.S.A. (Part 1)

    5th post coming soon: Canada v.s. the U.S.A. (Part 2)

    6th post coming soon:  Canada and our Family

    7th post coming soon:  Loose Ends, and Reader Request


    Posted by Chimera on 01/14/15 at 07:21 AM in Justice systemsItalian systemUS etc systems


    Comments

    Thanks, Chimera, up there in the Pacific northwest! I for one love this. Enables point by point system comparisons and spreading of the best ideas everywhere.

    Canada is like Italy in one sense: career-path judges and prosecutors none of whom are elected - the huge amount of money going into US judicial elections is the target of a big pushback campaign now.

    Career-path may not unequivocally be better; but harder to lean on in big-bucks cases - DeNunzio and Hellmann in the 2011 appeal were thankfully rarities in Italy, and over 100 Italian judges and prosecutors have died protecting the sanctity of the justice system (one of many things the dishonest Prestons and Fischers never acknowledge). Dr Mignini is famous and much admired for how unflinching he was in the face of two smear campaigns, among the worst in any country in history.

    Canada is also like Italy in another sense: no massive PR is allowed as was attempted by the Knox and Sollecito families to poison the jury pool in 2008 and 2010 which in 2010 achieved real traction. 

    Most of the United Nations system is geared to advancing global system development in many areas, and Canada, Italy and the United States are all heavily involved in this sharing and harmonizing of systems.

    The one area where this doesnt really happen is in justice. Being “non-economic” that area was regarded as back-burner when the UN structure took its present form, and anyway, every country had one of sorts, even if it was inherited from the colonial powers.

    To its shame John Jay College of Justice in New York which is the apex training center in the US allowed a psychologist on its staff, Saul Kassin, to not only claim on radio and TV and the internet things that were wildly wrong about the case and the Italian justice system, but also to publish, and also to address his false claims to a GLOBAL conference of several hundred senior officials from around the world.  So the bigotry initially put on steroids by Doug Preston spreads like a cancer.

    Hard to see any big changes needed in Italian justice except for the planned steps to prune some steps!! The effect of which would be to edge more pro-victim, which polls show would be wildly popular - gaming of the system as happened in Meredith’s case causes almost universal disgust which is one reason RS and AK are not popular.

    This was a post about a possible system change Italy might consider in light of the unusual way in which what could have been one trial or three trials ended up as two trials with Guede accidentally quite a beneficiary even though he has always denied a role in Meredith’s killing.

    http://truejustice.org/ee/index.php?/tjmk/comments/prime_minister_renzis_justice_reforms_one_system-change_need/

    Posted by Peter Quennell on 01/14/15 at 10:35 AM | #

    very interesting, doing a bit of comparative law is always extremely useful. Five words again for these defendants “lucky to be in Italy”.  Reason is they will not do 25 in.

    Posted by Popper on 01/14/15 at 02:27 PM | #

    Je Suis Charlie.
    Je Suis Meredith.

    Posted by Grahame Rhodes on 01/14/15 at 03:20 PM | #

    Glad you liked it.

    Just to clarify, for murder one, after 25 you can ‘apply’ for parole. You are not guaranteed it.  Most don’t get it first, second, third time….

    Even if you are paroled, for killers, it likely means house arrest and electronic monitoring ... for life.

    There would be no ‘‘just getting on with her life’’ for Knox.

    There has been talk of making the sentence a 40 year minimum of incarceration for the most heinous types of murders, (including killing during a sexual assault).

    For 1st and 2nd degree, the laws are set.  There is no ‘‘fast track’’ deduction, or ‘‘mitigating factors’’ deduction.  Although, for 2nd degree, ‘aggravating’ or ‘mitigating’ may determine what the baseline is (10 to 25 years).

    Just ask the court in the case of child killer Robert Latimer, who suffocated his disabled child, and claimed it was a mercy killing.

    Another clarification, for first degree murder, who can still get the Supreme Court of Canada appeal (even if Provincial Court denies you).  But again, you need valid grounds. Bongiorno waving a knife doesn’t count.

    Yes, Popper ‘‘lucky to be in Italy’‘.

    Posted by Chimera on 01/14/15 at 10:21 PM | #

    It’s interesting.

    I’d like to remind one distincive point of the Italian system - which derives from a very ancient principle in Roman Law: the defendant has a Right to Lie.

    This doesn’t seem encapsulated in common law systems.

    Another feature of the Italian system is that Magistrates (that by the Constitution are the same of judges) operate from the beginning of investigation, within the prosecution, and also through a chain of prelimninary judges.

    Posted by Yummi on 01/14/15 at 10:44 PM | #

    Thanks for your effort, Chimera. It’s interesting to read the comparisons.

    Posted by Wascana on 01/15/15 at 12:19 PM | #

    Hi Chimera:

    This was a great article on our Canadian system as it pertains to comparing the Italian system’s treatment of AK, RS, RG.

    One comment: Robert Latimer did not just “claim” to have euthanized his daughter. That was honestly his true motive - to end her suffering, and most Canadians believe that also, once they know the details.  It is not an easy case since it raises all kinds of issues, foremost that of mercy killing.  It bothers me to see him referred to as a “child killer”, though it is, strictly-speaking, true, if somewhat misleading in lacking context.  I know people who know him and his family from that community (Wilkie), and everyone in Canada likely knows of the case.

    He is not an AK or an RS or a RG let alone a Bundy or one of those nurses who poison or otherwise kill multiple patients.  He is actually a decent everyday man, driven to a single extreme act of compassion, for which he will pay for the rest of his life.  The inhumanity in the system left him feeling there was no other option to relieve her endless and increasing physical pain.  The medical system kept her alive early on, then the family and Tracy were left to cope with the life-long consequences.  I’m just saying that Latimer’s is not a simple case with simple issues, so it is unfair to categorize him as a “child killer” without any contextual information, especially when the discussion on TJMK is often about cold-hearted killers and rapists.

    For anyone interested in the actual person (the Saskatchewan farmer and father) and the context of this crime (his daughter Tracy’s very real and permanent life of pain due to her severe disabilities), see the essay on the case and its legal and ethical issues by the brilliant Dr. Rudy Krutzen (retired professor of Philosophy, now deceased, sadly):

    http://faculty.cbu.ca/rkeshen/Canadian Political Values/case_of_robert_and_tracy_lat.htm#The

    There is also the Wikipedia page, and note the details in the Public Support section:

    https://en.wikipedia.org/wiki/Robert_Latimer

    Thanks again Chimera for your hard work and effort in writing this article.  It’s a great contribution to the global legal context of AK and RS’ false claims of being mistreated by a supposedly “backward” Italy.  You’re so right - AK and RS would never have gotten an appeal in the first place in Canada.  They’d have likely been convicted, sentenced, and that would be that.

    Posted by all4justice on 01/15/15 at 03:12 PM | #

    @ all4justice

    Actually, I brought up Robert Latimer for a different reason.  He was originally given 2 years for a second degree murder conviction (his lawyer sought a constitutional exemption) to the required life sentence.

    It was overturned on appeal, Latimer is serving life, but was eligible after 10 years (the minimum for murder 2).

    Point is: 1st and 2nd degree murderers AUTOMATICALLY get life, even if they are likeable or relatable.  Knox, Sollecito and Guede would have gotten life.

    Even with a sympathetic prosecutor who would take a murder 2 plea, and a sympathetic judge ... it would still be life, with a 10 year minimum.

    Only if Knox could (fake) cry her way to a manslaughter plea, would she ever have true freedom.  Karla Holmolka/Paul Bernardo might be a better comparison to AK/RS.

    Thanks for the feedback.

    Posted by Chimera on 01/15/15 at 10:18 PM | #

    Hi Chimera,

    Thanks for elaborating.  :] 

    I love the comment about AK fake-crying, lol. I don’t get how so many Americans cannot see through her obvious (attempted) manipulations. 

    I also agree about the Homolka/Bernardo comparison, which is very apt, & justifiably terrifying should they not be incarcerated for their crimes (& I say this in the context of them having been convicted on overwhelming evidence & with virtually no hope of Cassation reversing the verdict of the Nencini appeal).

    Again, thanks for your great contribution to putting AK/RS smoke screening into its proper place, i.e. the garbage can.

    Posted by all4justice on 01/16/15 at 11:15 AM | #


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    Or to next entry The Sollecito Trial For “Honor Bound” #1: History Of How This Ill-Fated Saga Began

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