For each of the questions below, provide a detailed written response. All responses must be typed (double-spaced, using a standard 12-point font), using full sentence and paragraph format, and proper Canadian spelling and grammar.
a. Public nudity
b. attempted murder
c.Assault causing bodily harm
d.counselling a public bus driver how to accept lower fares than required and to keep the fares paid for himself. this is a fraud in relation to fares.
e. Being found in a common gaming house
f.Cheating at play
g. Conspiracy to bribe a judge
Paralegal Michaela Gulliver is representing 53-year old Gary Wilkinson. he has been charged with "theft under $5000". It is alleged that he took from a local drugstore a bottle of mouthwash valued at $3.95. He had no intention of paying for this item. gary has no prior criminalrecord. During the initial client interview, Gary advised Michaela that his permanent address was a local men's shelter. When Michaela attended court on Gary's first appearance she noticed that Gary looked haggard and unwashed, was wearing old and dirty clothing, and smelled of alcohol. During a court ress, Gary lit a cigarette in the courtroom and was immediatly told by the Crown attorney to put it out, which Gary did by dropping the cigaretteon the carpet and stepping on it.
Questions to be answered:
a. What section of the Criminal Code applies to this offence?
b. What options does the crown have and what option is the likely to choose in this case and why?
c. If you were in the place of paralegal Michaela Gulliver,
What range of outcomes would you envision with regard to disposition of this matter? if you were to negotiate a plea agreement with the crown, for what dispositionwould you advocate and why? In making your submissions to the crown what factors about your client that would you consider putting forward as mitigating factors and how you deal with aggravting factors, if any?
d.Suppory your submissions by the pertinent statutory authorities.
Criminal law and Summary Conviction law
Questions and Answers
2. The election is the process where the criminal law, in order to meet the ends of justice, and under designated circumstances, provides flexibility to the Attorney General (R. v. Mitchell , 1997). When the accused is charged with the indictable offence, and also with the hybrid offence opted and elected to proceed indictably, then the accused have the option to elect the trail mode under section 536(2) (Canadian Criminal Code, 1985), of the Code, subject to satisfaction that, the accused is not charged with offence under section 469 (Canadian Criminal Code, 1985), i.e. offence of Treason, Alarming Her Majesty, Intimidating Parliament or a legislature, Inciting to mutiny, Seditious offences, Piracy, Piratical acts, Murder, and also the offence of being accessory to treason and bribery by a judicial officer, and also not the offence for which the provincial court judge, have the ultimate jurisdiction to hear over the matter, under section 553 (Canadian Criminal Code, 1985).
b.Attempted Murder- The level of court that has the jurisdiction to hear this offence is the Provincial and territorial superior courts under section 239 of (Criminal Code, 1985)
c.Assault causing bodily harm- The level of court that has the jurisdiction to hear this offence is the Provincial and Superior Court under section 267 of (Criminal Code, 1985)
d.Fraud in relation to fares and counselling of bus driver- The level of court that has the jurisdiction to hear this offence is the Traffic Court under section 393(1) of (Criminal Code, 1985)
e.Being found in a common gaming house- The level of court that has the jurisdiction to hear this offence is the Provincial Court under section 201(2) of (Section 201(2)- Person found in or owner permitting use)
f.Cheating at play- The level of court that has the jurisdiction to hear this offence is the Provincial Court under section 553 of (Section 553- Absolute jurisdiction)
g.Conspiracy to bribe a judge- The level of court that has the jurisdiction to hear this offence is the Superior Court under section 119 of (Criminal Code, 1985)
b.As the offence is a theft of $ 3.94, and hence it is under $5000, and Gary Wilkinson, do not have a history of criminal record (R. v. Prowse, 1998), so the punishment can range from a nominal fine to suspended sentence, with the provision for probation.
c.Diversion is an alternative to prosecution, with different eligibility requirements. Diversion programs can be formal and structured, and can also be informal and might involve doing community service or opting for a charity donation. But, it is the discretion of the Crown to designate the offence to go for diversion. As with the instant case of theft under $5000, for shoplifting and with no previous criminal record, the Crown may possibly opt for approving a diversion and will consider minor offences for diversion. So, being the duty counsel for Gary Wilkinson, Michaela Gulliver, can seek to resolute with the Crown for possible diversion, if the case is not pre- approved for diversion. But, agreeing to diversion on part of Gary Wilkinson is not similar to pleading guilty, so it is the duty of Michaela Gulliver to look in to the disclosure of Gary, which will then help him to make an informed decision. The mitigating factors for Gary Wilkinson is that the shoplifting is indeed for a small and negligible amount of $3.94, and also that he is the first time offender and not a habitual offender, but the aggravating factors for Gary Wilkinson is his intention of not paying for the product he collected from the store and also that he have the history of taking alcohol and he is currently into it, so the aggravating factor of not paying the amount for the service or the product he took is quite an offending act. As it is the discretion of the Crown, so it is solely on them, to provide the diversion for Gary Wilkinson for a nominal fine or involving Gary into community service or opting for a charity donation, or suspended sentence, with the provision for probation, can all be the plausible options at the discretion of the Crown, to decide on the individual circumstances of the case.
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Canadian Criminal Code. (1985). Section 536(2)- Election before justice in certain cases. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/page-141.html#h-175
Criminal Code. (1985). Assault with a weapon or causing bodily harm. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-267.html
Criminal Code. (1985). Attempt to commit murder. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-239.html
Criminal Code. (1985). Bribery of judicial officers, etc. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-119.html
Criminal Code. (1985). Fraud in relation to fares, etc. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-393.html
Criminal Code. (1985). Nudity. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-174.html
Criminal Code. (1985). Punishment for theft. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-334.html
Criminal Code. (1985). Section 2- Provincial Court. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/page-1.html?txthl=provinciale+provincial+provinces+province+court#s-2
R. v. Mitchell , (1997), 121 C.C.C. (3d) 139 (Ont. C.A.) (Court of Appeal, Ontario 1997).
R. v. Prowse, 1998 CanLII 18024 (NL CA) (Supreme Court of Newfoundland and Labrador, Court of Appeal 1998).
Section 201(2)- Person found in or owner permitting use. (n.d.). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/page-47.html
Section 553- Absolute jurisdiction. (n.d.). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/section-553-20030101.html