NCJ Number
37079
Date Published
1975
Length
141 pages
Annotation
THIS WORKING PAPER DISCUSSES FUNDAMENTAL ISSUES IN CANADIAN CRIMINAL PROCEDURE BY EXAMINING THE OFFICIAL REACTION TO CRIME BY AGENTS AND INSTITUTIONS OF THE STATE.
Abstract
EMPHASIZED IS THE DIVISION OF RESPONSIBILITY BETWEEN THE CROWN AND THE JUDICIARY TO SELECT OR DIRECT THE PROCEDURES THAT DETERMINE THE COURSE OF A CASE THROUGH ITS VARIOUS STAGES, I.E., DISCRETION. A DISCUSSION OF THE BASIC CHARACTERISTICS OF CANADIAN PROCEDURAL LAW AND PRACTICE THAT HAVE THE MOST DIRECT BEARING ON THE CROWN AND THE COURTS IS FOLLOWED BY AN EXPLORATION OF THE RATIONALE BEHIND THESE CHARACTERISTICS. A THEORETICAL BASIS FOR THE ALLOCATION OF RESPONSIBILITY IS THEN PROPOSED. A DISTINCTION IS DRAWN BETWEEN THE POLITICAL AND NON-POLITICAL ASPECTS OF THE ADMINISTRATION OF JUSTICE WITH POLITICAL DECISIONS BEING ALLOCATED TO THE CROWN. TWO SOLUTIONS ARE ADVOCATED FOR DEALING WITH THE ABUSIVE EXERCISE OF CROWN DISCRETION - INCREASING THE PERSONAL RESPONSIBILITY AND POLITICAL ACCOUNTABILITY OF THE ATTORNEY GENERAL AND REPLACING NON-ESSENTIAL DISCRETIONARY POWERS THAT PRESENT THE POSSIBILITY OF ABUSE BY FORMAL RULES, BRINGING THE MATTERS INVOLVED UNDER JUDICIAL CONTROL. THESE PROPOSALS ARE APPLIED IN THE DISCUSSION OF SPECIFIC PROBLEMS, SUCH AS PLEA BARGAINING AND PRIVATE PROSECUTIONS. --IN ENGLISH AND FRENCH