The Advantage of Retaining a Criminal Lawyer

There are two types of criminal offences in Canada, each with its own procedural phases: summary conviction offences and indictable offences. Most offences are dual procedure, or hybrid. This means that the Crown Attorney can elect to prosecute either by way of summary conviction or by indictment.

Summary Conviction Offences

These offences generally carry a sentence up to a maximum of six months imprisonment, with some exceptions. There are two procedural phases: pre-trial and trial, and an experienced Criminal Defence Lawyer can employ different strategies applicable to each phase.

The pre-trial phase consists of three procedural steps:

1) Obtaining complete disclosure of all the evidence from the Crown Attorney;
2) a Crown Pre-Trial meeting; and
3) a Judicial Pre-Trial.

When facing charges in the Toronto Courts, initial disclosure provided during the first or second court appearance is, in most cases, incomplete. A Criminal Defence Lawyer will carefully review all disclosure and make a second or third request for additional materials which appear to be missing from the disclosure package. These additional materials almost always turn out to be helpful to the client's case. Once complete disclosure has been obtained, the Criminal Defence Lawyer will review the materials with the client before proceeding to the next step.

In Toronto, a Criminal Defence Lawyer will schedule a pre-trial meeting with the Crown Attorney. An effective strategy for the Criminal Defence Lawyer is to fully canvass all the issues and identify any weaknesses in the Crown's case. In some cases, the Crown would then consider reducing or withdrawing the charges.

A Judicial Pre-Trial is a meeting conducted before a Judge with both the Crown Attorney and the Criminal Defence Lawyer present and, in Toronto, can be scheduled in most cases. An effective strategy for an experienced Criminal Defence Lawyer is to take this opportunity to again argue any weaknesses in the Crown's case and encourage the Judge to confront the Crown for the purpose of reviewing whether the charges should be reduced or withdrawn. As well, the Crown may indicate a sentencing position on an early guilty plea and this would also be discussed with the Judge. Once the issues have been narrowed down, and if a trial is to proceed, then there is a discussion of how many witnesses are expected to be called and how long the trial is likely to be.

Once the pre-trial phase is completed, the Criminal Defence Lawyer will discuss trial strategies with the client and obtain instructions to set a trial date. In Toronto, the trial would be conducted in one of the five courthouses of the Ontario Court of Justice.

Indictable Offences

These are the more serious offences, which can carry a maximum sentence from two years to life imprisonment. Most indictable offences provide the opportunity for the Criminal Defence Lawyer to elect to have a preliminary hearing before a Judge in the Ontario Court of Justice, which is conducted after the pre-trial phase and before the trial phase. In Toronto, there are five Ontario Court of Justice courthouses where criminal cases are heard: Old City Hall, College Park, Scarborough Court and two in North York. Similar to a trial, the Crown calls its witnesses and the Criminal Defence Lawyer has the opportunity to cross-examine each witness. There is no plea of guilty or not guilty, and there is no finding of guilty or not guilty. Instead, the Judge must decide whether there is sufficient evidence to go to trial in the Superior Court of Justice, located in downtown Toronto on University Avenue, which only deals with indictable offences.

This is a good opportunity for an experienced Criminal Defence Lawyer to test the Crown's evidence and expose the weaknesses in the Crown's case. If the Judge decides that there is insufficient evidence for a trial, then the charges are dismissed and the client is free to go. If a trial is to proceed, then the evidence given by the witnesses during their examination and cross-examination at the preliminary hearing can be used against them at trial by the Criminal Defence Lawyer.

To effectively represent a client facing criminal charges in Toronto, an experienced Criminal Defence Lawyer will take advantage of all of these opportunities to successfully dispose of the charges throughout all phases of the case.

Copyright © 2011 Steven Tress, Barrister and Solicitor. All Rights Reserved Worldwide.
About this Author

Steven Tress is a Toronto Criminal Lawyer with over 20 years experience in Criminal Law. His office is located at 425 University Avenue, Suite 500, Toronto, Ontario, M5G 1T6, and may be contacted for a consultation at (416) 977-3657 or via email: contact@steventress.com. For a detailed biography and other information, visit http://steventress.com/

Why Judicial Corporal Punishment Is Better Than Incarceration

Today, we naturally think of incarceration as more modern and advanced than judicial corporal punishment, but it's not true incarceration is always better. The facts clearly show prison does not rehabilitate or deter much crime and merely keeps criminals out of circulation while they are in prison. While the execution of judicial corporal punishment is horrendous and usually bloody, the effects of incarceration are worse. Prison takes offenders away from their families, marriages, jobs, friends, communities and churches and puts them in an extremely bad moral environment for years at a time. Incarceration does not provide the benefit of example, because it is hidden behind prison walls. In prison, convicts learn crime skills, join or re-join gangs, fight, go crazy or get depressed, suffer in solitary confinement, and adopt sick prison values and ways. Most of the time, prisoners do not learn the job and life skills they need to succeed on the outside. After their release, well over half wind up right back in prison.

All slave systems in history whipped slaves, which proves effectiveness. Stable nations using judicial corporal punishment today enjoy significantly lower crime rates than countries that do not. Historically, corporal punishment is abolished only because it is an unpopular reminder of lower social status. For example, as St. Paul reminded a Roman soldier, Roman citizens could not be flogged. In most Western countries, it was curtailed or abolished soon after political equality of citizens was achieved: In France after the French Revolution, in Germany after the revolution of 1848, in the United States after the American Revolution and then more completely after the American Civil War. After Great Britain abolished it, her crime rates increased markedly.

Ex-slaves interviewed as part of the Federal Writers' Project from 1936 to 1938 confirmed the effectiveness of corporal punishment, especially to discipline young males. Some ex-slaves said corporal punishment taught them valuable lessons. Female ex-slaves in particular observed that it was needed and effective. While we often associate flogging with slavery in the United States, it was used effectively by General George Washington to discipline his mainly white troops. The Continental Congress initially authorized Washington to apply no more than 40 lashes, but in 1776, Washington sought and obtained authority from Congress to impose 100 lashes. Shortly before the battle of Yorktown, Washington sought authority to impose 500 lashes. Thomas Jefferson provided for "stripes" in a statute he drew for Virginia. In its early years, the United States did without large-scale penitentiaries.

When executed in public, corporal punishment provides a much better example than prison time. It deters crime effectively. Intense pain fills the offender with a desire to avoid pain in the future. The boredom of prison does not impart the same message. Physical punishment provides offenders with an immediate opportunity to change their behavior and join law-abiding society. Before incarcerated convicts can reform, they must first endure a clean version of hell that discourages their improvement and fails to impart the skills they will need when released.

Judicial corporal punishment is far less expensive and time-consuming than incarceration. Incarceration saddles taxpayers with expenses for food, clothing, shelter, medical care, security, personnel costs, building expenses and other burdens. America's 2.3 million inmates are essentially a huge mass of full-ride welfare recipients. Incarceration removes people from the productive economy, cages them, and prevents most of them from working productively or efficiently in the private sector. Prison industries are state businesses and usually only make products for use by the state. There are not nearly enough prison jobs to go around.

Flogging does not preclude incarceration. Like prison time, it can be held over the parolee's or probationer's head. But corporal punishment is faster and more flexible. Several doses of flogging might be administered in the time it takes to serve a one-year prison sentence. Some offenders will want to "get it over with" and plead guilty, accepting responsibility sooner.

Judicial corporal punishment will not break up families, marriages, communities and careers like incarceration does, nor will it increase welfare costs as much as mass incarceration.

Our society abhors the thought of flogging. Rarely portrayed as a valuable punishment, it is often confused with more arbitrary parental corporal punishment. But the more people learn about modern mass incarceration in the United States, the less they will object to judicial corporal punishment. Studies applicable to often-arbitrary and abusive parental corporal punishment do not apply to the rational use of judicial corporal punishment. We do not have scientific studies concerning judicial corporal punishment. All we have is history... and increasing knowledge of the social disaster caused by modern mass incarceration.
About this Author

For documented effectiveness of judicial corporal punishment, please look inside "Prison and Slavery - A Surprising Comparison," http://www.amazon.com/dp/1432753835. John Dewar Gleissner, Esq. graduated from Auburn University (B.A. with Honor, 1973) and Vanderbilt University School of Law (1977).

Women's Right to Property in India

Several legal reforms have taken place since independence in India, including on equal share of daughters to property. Yet equal status remains illusive .Establishment of laws and bringing practices in conformity thereto is necessarily a long drawn out process. The government, the legislature, the judiciary, the media and civil society has to perform their roles, each in their own areas of competence and in a concerted manner for the process to be speedy and effective.
To quote Justice Sujata V. Manohar of Supreme Court of India

"...It is not easy to eradicate deep seated cultural values or to alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of law reform in bringing about social change. Obviously law, by itself, may not be enough. Law is only an instrument. It must be effectively used. And this effective use depends as much on a supportive judiciary as on the social will to change. An active social reform movement, if accompanied by legal reform, properly enforced, can transform society."

Historical perspective
An effective social reform movement does need the help of law and a sympathetic judiciary to achieve its objectives. Women empowerment, equal rights to both men and women, equal share of property, etc., are some of the issues which we discuss everyday, in life, newspaper and on television. But the reality which bites is that these issues are still "unresolved". Not much has actually been done to create equality between the male and female gender. The male still dominates society.

If it's a matter of property, then legally male dominate the society. There are numerous laws that say that there should be no discrimination between the sexes, but in reality none are effective enough to actually bring about a revolution; a change in society.

According to the Indian Succession Act, 1925, everyone is entitled to equal inheritance, except Hindus, Sikhs, Jains, Buddhists and Muslims. Under this act, the daughter of a person dying intestate would be entitled only to one-fourth of the son's share, or Rs. 5,000/- (Sthree Dhan), whichever is lesser. The Travancore High Court, however, held that the Indian Succession Act would have no application to the Christian women of the Travancore State in view of the Travancore Christian Succession Act, 1916. Under the State Act, the daughter of a person dying intestate would be entitled only to one-fourth of the son's share or Rs. 5,000/- (Sthree Dhana) whichever is lesser. The application of the State Act was challenged in the Supreme Court in the famous Mary Roy's Case (Mary Roy Vs. State of Kerala, AIR 1986 SC 1011; 1986(2) SCC 209). The Court ruled that the Cochin and Travancore Christian Succession Acts had ceased to be operative on the Reorganization of States and that automatically made the Indian Succession Act applicable to all Kerala Christians bestowing on them equal inheritance rights.

The Hindu Enactment Act, 1956, established that women have equal inheritance rights, as men; and it abolished life estate of female heirs. However, this law could not do the needful as there was another law, the Mitakshara coparcenaries (Hindu Law) that overruled the previous law.
According to Mitakshara coparcenaries, in a joint family, a daughter gets a much smaller share of property compared to the son. While the father's property is shared equally between brother and sister; the brother, in addition, is entitled to a share in the coparcenaries from which the sister is excluded .For example, if the family owns a dwelling house, then the daughter's right is confined only to the right of residence and not possession or ownership.

Recommendations of Women Committees/Commissions on Status of Women in India

In 1975 a committee on the status of women was constituted by the Government of India, to evaluate the current legal provisions in regards to women , so that that a women is not left completely destitute.

Some important recommendations which were made by this committee were that legislative measures should be taken to bring Christian women of Kerala under the Indian Succession Act. The Indian Succession Act should be extended to Goa and Pondicherry respectively to undo the relegation of widows to fourth position in matters of succession and to undo the inferior position to which Christian women are relegated by not being considered as full owners of property. In regards to succession to property among Hindus, the right by birth should be abolished and the Mitakshara co-parcenary should be converted into Dayabhaga (the retention of Mitakshara co-parcenary perpetuates inequality between sons and daughters as only males can be co-parceners, and inheritance is only through the male line). The exception provided in Section 4 (2) of the Hindu Succession Act relating to devolution of tenancies should be abolished (this provision, as it stands now excludes devolution of tenancy rights under various State Laws from the scope of the Act).

The discrimination between married and unmarried daughters regarding right of inheritance of dwelling houses caused under Section 23 of the Hindu Succession Act should be removed.
The right of testation should be limited under the Hindu Succession Act, such that female heirs are not deprived of their inheritance rights. There is need for legislation in Muslim Law to give equal share of property to the widow and daughter along with sons as done in Turkey.

In Matrimonial property, legal recognition should be given to the economic value of the contribution made by the wife through household work for purposes of determining ownership of matrimonial property, instead of continuing the archaic test of actual financial contribution; On divorce or separation, the wife should be entitled to at least one-third of the assets acquired at the time of and during the marriage.

The National Commission for Women had also recommended certain amendments in laws related to women and property. Under Indian Succession Act, 1925 it suggested that Sections 15 and 16 of the Act, should be amended, removing mandatory linkage of wife's domicile with that of the husband. Further, it recommended that appointment of testamentary guardian may be the right of both the parents acting concurrently. Widows should be granted letter of administration to deal with the Estate of the deceased husband unless excluded by the Court for sufficient reasons (Section 219 (a)).and application made by the widow to be disposed of within a year (Section 218 (2).In Hindu Succession Act, 1956 It suggested that equal distribution should be made of not only separate or self acquired properties of the diseased male, but also of undivided interests in co-parcenary property. Daughter of a co-parcener in a Hindu joint family governed by Mitakshara Law to be co-parcener by birth in her own right in the same manner as her son; she should have right of claim by survivorship and to have same liabilities and disabilities as a son ;further co-parcenary property to be divided and allotted in equal share.

The right of any heir to claim partition of a dwelling house to arise only after settlement of widowed mother's rights is disposed with in case the deceased male is intestate.
A remarkable dent in this situation was made by the Hindu Succession [Andhra Pradesh] Amendment Act, 1985, which initiated a remarkable development. This law stated that, in any circumstances, the rights of the daughter are equal to that of the son. This new law found the Mitakshara system in violation of the fundamental right of equality bestowed upon women in Indian Constitution. Following Andhra Pradesh, the States of Tamil Nadu, Maharashtra and Kerala subsequently also amended their laws by including women as members of the coparcenaries.
The Rajya Sabha on August 16, 2005, passed the Hindu Succession (Amendment) Bill, 2004, (Hindu Succession (Amendment) Act, 2005,) which is now a law, giving daughters and sons equal rights to property. According to this law, any woman, irrespective of the marital status, has full right to inherit ancestral property just like a son of the family. This law has completely abolished the Hindu Succession Act 1956 by giving equal rights to daughters in the 'Hindu Mitakshara Coparcenary property', as sons have. If however, any of the parents have built some property and have made a will of their own, this law would be ineffective.

Myth

Earlier, the law use to put the male heirs on a higher footing by providing that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs; the very concept of co-parcenary was that of "an exclusive male membership club" .Now this concept has` been abolished . But surprisingly, even today, even after the new law, co-parcenary remains a primary entitlement of males; no doubt law provides for equal division of share between all heirs, male and female on the death of a male co-parcener, but in practice the scene is totally different .Legally, Intestate self acquired property devolves equally between male and female heirs; but , even toady female heirs are asked to relinquish their share by making relinquishment deeds on their signature and are commonly submitted in courts. If the intestate property includes a dwelling house, the female heirs have no right to partition until the male heirs choose to divide their respective shares. If a Hindu female dies intestate, her property devolves first to husband's heirs, then to husband's father's heirs and finally only to mother's heirs; thus the intestate Hindu female property is kept within the husband's lien.

Conclusion

To actually achieve equal inheritance for all, the laws have been amended. In regard to succession to property among Hindus, the right by birth has been abolished and the Mitakshara School co-parcenary of Hindu Law has been converted into Dayabhaga School that means equal distribution of not only separate or self acquired properties of the diseased male, but also of undivided interests in coparcenary property. Daughter of a coparcener in a Hindu joint family governed by Mitakshara Law now is coparcener by birth in her own right in the same manner as a son; she has right of claim by survivorship and has same liabilities and disabilities as a son; now co-parcenary property to be divided and allotted in equal share. The theoretical reforms so far have not been adequate to give all Indian women a right to property on the same footing and terms as men. It varies with region and religion. Even where law has given a right, conventions and practices do not recognize them. Women themselves relinquish their rights. Women, as daughters, wives, daughters-in-law, mothers or sisters tend to lose out and often suffer deprivation. This further gets accentuated when they lose the security of the family, as single women, divorced/separated or widowed. Social awareness of the rights under law, attitudes to adhere to it and a mindset to change law and practice to ensure social justice is therefore urgent.
Therefore a social reform movement is necessary for such awareness and change of mindset. Since 'marriage' is the most traditional institution of initiating a family and preserving it, let registration of marriages be made compulsory It is suggested that to achieve more power for women we must Increase awareness of laws through education institutions, general awareness and legal awareness programmes; sensitize Judiciary, administrators and legislators about implementation of laws in letter and spirit; consider long pending recommendations for amendments of legal provisions on inheritance and strengthen the administrative machinery for the purpose.
About this Author

Rakesh J Saxena
Hindu Personal Laws of India

How We Select State Judges

The issue of how state judges are selected in the U.S. has been an area of controversy for more than 150 years. There are a number of variations but generally speaking, state judicial selection takes place by one of two methods - by appointment or by election. Initially judges were appointed by the state governors or legislation. Mississippi in 1832 was the first state to write a provision into their constitution to have voters elect state judges. This eventually became the common method of choice for a majority of states for many years.

During the 1930's some highly publicized cases highlighting the role of corrupt politics in the election process, in judicial decisions and the excessive time involved in campaigning caused many people to rethink the judicial selection process. A new plan, commonly called the Missouri Plan became the model of choice for judicial selections.

The Missouri Plan is a method to combine election and appointment of judges. Under the plan, candidates for judicial vacancies are first selected by commissions. They forward a short list of names to the governor. If the governor does not select one of these names to fill the position within sixty days, the committee makes the selection. After one year during a general election, the judge enters into a "retention election" to determine if he will retain his office. This plan is also referred to as a 'Merit Selection Plan with Governor Appointment'. Currently 24 states use this plan.

Other types of appointment methods are:

Governor Appointment (no selection commission) - in use by 3 states.

Legislative Appointment (no selection commission) - in use by 2 states.

There are two different permutations of the election method of selecting state judges. These are Partisan and Non-Partisan elections. Partisan elections have the candidates' party affiliation listed on the ballot. A non-partisan election is one where the candidates are listed on the ballot with no label designating any party affiliation. Six states use partisan elections and 15 states currently employ the non-partisan election process.

The debate continues to rage over which method most limits the role of politics in the selection of state judges, with many states currently involved in trying to redefine their systems. Missouri faces an initiative on their ballot in November; the state's historical merit selection method would be discarded and replaced by direct judicial elections.

Advocates of appointment claim it minimizes political considerations in the selection of judges, improves the quality of the judiciary and ensures judicial independence in deciding cases. In particular, the use of a judicial nominating commission composed primarily of lawyers and distinguished members of the community is seen as bringing a degree of expertise to the process of picking judges. Their argument in its favor is that, unlike elective systems, the Missouri Plan is more likely to select qualified judges they say, because they are selected by experts. This assumes the voters, as a whole, are apathetic toward judicial races, are not familiar with the issues at hand, and are basically not competent to vote on judicial candidates.

Opponents of the so called merit plan say the selection is swayed by political insiders and the plan has handed influence over the judiciary to lawyers (mostly liberal leaning trial lawyers they contend) and bar associations.

The amount of money spent on judicial elections continues to climb - doubling to more than $200 million over the last decade. Only $2 million was spent on those states using the merit system. More and more special interests groups are raising larger and larger sums of money to upset judges that have upheld laws they oppose. According to Jeffrey Neary, a district judge in Iowa, he barely survived a campaign aimed at removing him for granting a divorce to a same-sex couple. He said the experience made him more cautious about how he approached controversial cases. He is up for retention this year. "I don't want judicial positions to be political positions," he said. "If that happens I don't want to be a judge."

Whatever the outcome, we can be sure the judicial selection process will be one of increasing controversy in the foreseeable future.
About this Author

Texas uses the Partisan Election process to elect their state judges. For issues concerning Criminal Law visit http://www.thedicklawfirm.com