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Old 12-02-2012, 03:35 PM   #26
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Originally Posted by broken_arrow View Post
I was under the impression that since the Criminal Code is a federal act, it applies unilaterally across Canada.
It is a federal act and a codified collection of statutes as only the federal government has the power to create criminal law pursuant to s. 91 of the constitution (1867). Theoretically, the law should be applied uniformly across Canada, but there is so much dependency on the use of discretion by different criminal justice actors (police, prosecutors, judges, etc) for the system to function, I think you may find different kinds of crimes being targeted more often or charges being pursued depending on the locale. Sentences could also be slightly different.

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I also thought that police lays charges on the spot and collects evidence (if there is evidence to collect). Prosecutors have to make sure that all the evidence obtained by the police is legitimate (aka obtained by non-oppressive or Charter infringing conduct). Failure to obtain evidence in a legitimate way will give rise to its exclusion under S. 24(2) of the Charter if admission of such evidence would put the administration of justice in disrepute.
I'm not 100% sure when police make their charging decisions in provinces without pre-charge approval and I cannot say for certain the degree of responsibility prosecutors have to make sure that all evidence obtained by police is legitimate (although they may be asked to advise on investigations and they do have a responsibility to disclose all the evidence to the accused so that they can make full answer and defense). I think greater responsibility lies on the judge and defense counsel. In this case, for a crime as serious as murder (s.469 offense) there will be a preliminary inquiry (to determine whether there is enough evidence to proceed to trial in the first place) and a 'voir dire' (trial within a trial) that has the function of determining the admissibility of evidence - these are just two examples of safeguards built into the system.

Manitoba Department of Justice | Prosecutions | The Criminal Case: Step by Step This link gives you all the stages in the criminal process beginning at the investigation, prelim, .. appealing a verdict (missing voir dire though).

Also, when Charter infringing conduct is found, the applicant may apply for evidence to be excluded under s24(2):

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Court uses the test as set out in R. v. Grant (2009):
(1) seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.

However, in some cases, even if the conduct is Charter infringing it does not necessarily mean the evidence will be automatically deemed inadmissible as "bringing the administration of justice into disrepute" may sometimes mean that not allowing the evidence would bring it into disrepute with the public. This is essentially a judgement call on the part of the judge who will consider:

A) whether the breach was inadvertent or minor or a result of willful or reckless or deliberate disregard for the Charter?
B) if the police were acting in good faith
C) extenuating circumstances

Disclaimer: take my reply for what it is worth as a qualified lawyer should have a way better understanding than me. I'm just a few classes shy of getting my BA in two majors, one of which happens to be in criminology and this is to the best of my understanding.
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Last edited by bing; 12-02-2012 at 03:49 PM.
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Old 12-02-2012, 05:07 PM   #27
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Thank you! Never heard of "the Crown's pre-charge approval" before!
That's kind of surprising. It was really highlighted in the media with the Stanley Cup riots, since the cops had shitloads of evidence, but had not laid charges--Crown Council always reviews evidence to ensure that they don't waste their own time laying charges and doing paperwork that'll just get them nowhere.
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Old 12-03-2012, 06:56 PM   #28
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no one wins in these sort of cases

what was insightful was mrs batalia's (the mother) comments today, noting how she was concerned for the victims' families.....from what i have read she and gary dhaliwal's mother used to hang and even travel together on shopping trips....

even if not true, what she insinuated is right: that the parents of the accused must be totally heartbroken too: to think that their kid actually was responsible for taking another's life...and that they'll be going to jail for 10-20 yrs ...and their hopes and dreams are never to be the same again....the loss and sadness that they must carry too.

despite a 'just' verdict being delivered, no one truly wins in these sort of horrible cases...sad all around.
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Old 12-03-2012, 07:02 PM   #29
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Quote:
Originally Posted by bing View Post
It is a federal act and a codified collection of statutes as only the federal government has the power to create criminal law pursuant to s. 91 of the constitution (1867). Theoretically, the law should be applied uniformly across Canada, but there is so much dependency on the use of discretion by different criminal justice actors (police, prosecutors, judges, etc) for the system to function, I think you may find different kinds of crimes being targeted more often or charges being pursued depending on the locale. Sentences could also be slightly different.



I'm not 100% sure when police make their charging decisions in provinces without pre-charge approval and I cannot say for certain the degree of responsibility prosecutors have to make sure that all evidence obtained by police is legitimate (although they may be asked to advise on investigations and they do have a responsibility to disclose all the evidence to the accused so that they can make full answer and defense). I think greater responsibility lies on the judge and defense counsel. In this case, for a crime as serious as murder (s.469 offense) there will be a preliminary inquiry (to determine whether there is enough evidence to proceed to trial in the first place) and a 'voir dire' (trial within a trial) that has the function of determining the admissibility of evidence - these are just two examples of safeguards built into the system.

Manitoba Department of Justice | Prosecutions | The Criminal Case: Step by Step This link gives you all the stages in the criminal process beginning at the investigation, prelim, .. appealing a verdict (missing voir dire though).

Also, when Charter infringing conduct is found, the applicant may apply for evidence to be excluded under s24(2):

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Court uses the test as set out in R. v. Grant (2009):
(1) seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.

However, in some cases, even if the conduct is Charter infringing it does not necessarily mean the evidence will be automatically deemed inadmissible as "bringing the administration of justice into disrepute" may sometimes mean that not allowing the evidence would bring it into disrepute with the public. This is essentially a judgement call on the part of the judge who will consider:

A) whether the breach was inadvertent or minor or a result of willful or reckless or deliberate disregard for the Charter?
B) if the police were acting in good faith
C) extenuating circumstances

Disclaimer: take my reply for what it is worth as a qualified lawyer should have a way better understanding than me. I'm just a few classes shy of getting my BA in two majors, one of which happens to be in criminology and this is to the best of my understanding.
Thanks my friend! I am from Ontario, so I never really heard of pre-charge approvals. I have an LLB from UK so criminal law down there is slightly different as well. I actually have to write a criminal law accreditation exam pretty soon, so I am trying to collect as much information as possible!
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Old 12-03-2012, 08:09 PM   #30
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Thanks my friend! I am from Ontario, so I never really heard of pre-charge approvals. I have an LLB from UK so criminal law down there is slightly different as well. I actually have to write a criminal law accreditation exam pretty soon, so I am trying to collect as much information as possible!
Glad I could help. I find that teaching also strengthens my own understanding. Very cool that you have an LLB - that's definitely one of the professional designations besides an MBA that I would want just for having one's sake.

Good luck on the exam.
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Old 12-03-2012, 08:19 PM   #31
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Glad I could help. I find that teaching also strengthens my own understanding. Very cool that you have an LLB - that's definitely one of the professional designations besides an MBA that I would want just for having one's sake.

Good luck on the exam.
Thanks a lot! I know A LOT of people who decided to get an LLB way down the road in their lives, so who knows, maybe you'll go for it after BA/MBA!
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Old 12-03-2012, 08:21 PM   #32
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Batalia

Quote:
BC model's ex to plead not guilty to murder

The ex-boyfriend of slain Simon Fraser University student Maple Batalia is expected to plead not guilty to her murder, his lawyer said Monday.

Gurjinder Singh ‘Gary’ Dhaliwal, 20, is charged with first-degree murder. Co-accused Gursima Singh Bedi, 22, is charged with manslaughter and accessory after the fact.

Batalia, 19, an aspiring model and actress, was gunned down in the parking lot of the Surrey SFU campus on Sept. 28, 2011, about an hour past midnight.

Dhaliwal’s defence counsel, David Albert, said the judge has issued a no-contact order on his client. Dhaliwal won’t be allowed to call the Batalia family, one of her friends, nor the co-accused.

“Likely there will be a bail hearing, but that realistically won’t be until sometime in early January,” Albert said outside court on the first day his client appeared before a judge.

“It’s important to remember that one of the cornerstones of our judicial system is that men and women who find themselves in these issues, like Mr. Dhaliwal, are presumed innocent. It’s easy to lose sight of that given all the media attention.”

Bedi has yet to retain council, he added.

The case resumes in the morning on Dec. 17 at the B.C. Provincial Court in Surrey.
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Old 12-05-2012, 07:41 PM   #33
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i'd referenced in an earlier post about how maple's mom is also worried about the accused and his parents...seems the mothers were best friends...and she said gary was a ''good guy'' ...brief but sad interview...shows how some murder cases are very gray in tone, not so easily setup as blk and white with clear villains...again no one wins in these sorts of tragedies...obviously the guy went down the wrong road and did something out of character; and now many families will be torn apart because of it.
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Old 12-05-2012, 10:00 PM   #34
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The guy is a coke head and was high when he did it. Has a rich family too from what I remember someone telling me. He's a fucking loser
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Old 12-05-2012, 10:15 PM   #35
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Quote:
Originally Posted by canali View Post
i'd referenced in an earlier post about how maple's mom is also worried about the accused and his parents...seems the mothers were best friends...and she said gary was a ''good guy'' ...brief but sad interview...shows how some murder cases are very gray in tone, not so easily setup as blk and white with clear villains...again no one wins in these sorts of tragedies...obviously the guy went down the wrong road and did something out of character; and now many families will be torn apart because of it.
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are you trying to suggest that he's a good guy and just made a "mistake"?? cuz that's what it seems like...
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Old 12-06-2012, 05:57 AM   #36
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did you watch the video at all?

we all are so quick (and i'm usually one of them) to jump the gun and bring out the torches to 'hang 'em high' on murderers, or hit and run drunk drivers etc....

instead i'm using this story to just show the real tragedy behind it all, too, in things not being black and white
(edited: at least in the mom's point of view...but who knows)

....where and why did this gary ex boyfriend go off the rails and down the wrong road (even mrs batalia hinted at this, which is why her daughter maple broke off relations with him). it's not like he was always this way, she contends, yet he really blew it in the end...it's that part to me which feels this is a double tragedy eg, a person who was thought by some to be a good person but then went on to make a hugely wrong and immoral choice on so many levels, affecting so many people, shattering so many dreams and hopes. was it turning down the road of drugs (which are rumoured) that did it, along with a controlling personality? guess we'll find out as the case proceeds.

the tragedy is also with gary's parents, who, no doubt will feel they've failed in some major way...can you imagine the agony thinking your kid was behind a murder? how THAT would rip out your friggin' heart, that you really ''blew it'' as a parent?

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are you trying to suggest that he's a good guy and just made a "mistake"?? cuz that's what it seems like...

Last edited by canali; 12-06-2012 at 06:39 AM.
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Old 12-06-2012, 06:05 AM   #37
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^ you act like you knew him personally. My little cousin went to the same high school as this kid, they were a year a part. I spoke to my cousin at length about this kid and he said that everyone that knew him, knew that he was capable of doing something like this and was known as a fucked up kid. He was a trouble maker and apparently not out of character to comitt this sort of crime.
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Old 12-06-2012, 06:13 AM   #38
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no i didn't know him...guess i was just touched by the mom's portrayal in the video
(and to be honest am thinking alot of all the parents on both sides...must be agony)
simply am going by mrs batalia's video and quote.

and what you mention might be valid, as gary may have had a dark side that maple's mom never knew
(often parents will ''like someone'' but not know the darker sides either...hell most of us, even
if we're pricks, feel a duty to be ''nice'' to most moms and show a decent side
).

so it's good to always get more sides of a person's character.

guess more will unravel as things progress.

cases like these, where things aren't black and white as per conflicting assessments
of a person's character, and who then goes on to do a horrible act, are fascinating.

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^ you act like you knew him personally. My little cousin went to the same high school as this kid, they were a year a part. I spoke to my cousin at length about this kid and he said that everyone that knew him, knew that he was capable of doing something like this and was known as a fucked up kid. He was a trouble maker and apparently not out of character to comitt this sort of crime.
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