Legal Analysis

Under Section 745 of the Criminal Code of Canada, offenders serving a life sentence for murder may be considered for parole after serving 15 years of their sentences.

Offenders serving life sentences for first-degree murder become eligible for unescorted temporary absences and day parole three years before their full parole eligibility date (normally 25 years). An offender may apply for escorted temporary absences after admission to a federal institution.

The sentencing judge determines when people convicted of second degree murder are eligible for consideration for parole, which can be set between 10 and 25 years. The Judicial Review provisions also apply for second-degree murder, if the parole eligibility date is set beyond 15 years. Inmates incarcerated for second-degree murder become eligible for consideration for unescorted temporary absences and day parole three years before their full parole eligibility date.

Offenders who are paroled while serving life sentences remain on parole for life, unless parole is revoked. Without a grant of parole, the offender remains imprisoned for life.

Can someone be placed in juvenile detention if the offender is already 18 years old? TLM was arrested for breach of probation and is stated by MRs girlfriend to have communicated with him from juvenile detention. She was 18 at the time.

matou said:

Can someone be placed in juvenile detention if the offender is already 18 years old? TLM was arrested for breach of probation and is stated by MRs girlfriend to have communicated with him from juvenile detention. She was 18 at the time.

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It would be possible - but probably only temporarily - if the original probation order was made prior to her 18th birthday. But she would have been moved pretty quickly to an adult facility. (this I'm not 100% on, but I will try to find out the answer)

Posted by izzy45 – AUG. 5, 2009

Trials can and will take as long as they need to, but they do try to narrow down how long a trial will take for scheduling purposes (for both the court, crown and counsel), all would have others matters that they are dealing with besides this particular case, so before they actually head to trial. (Making sure that everyone is available for that particular length of time. They also would inform a jury of how long they will be involved as it will impact their lives as well. I would think a matter like this would probably take about 6 weeks - just a guess - and they will be tried separately - or so I think I read, which could add additional time. Once a trial starts it has to begin and end with the same Judge, so they will need to coordinate his/her schedule to make sure that judge doesn't have anything else he/she is supposed to be hearing within that time frame. The crown will have other matters to deal with, even though their load will be increasingly lessened to give them time to prepare for trial, I would imagine they still have somewhat of a caseload, and I would think the same would apply for defense counsel. But the trial is set mainly on how many witnesses (police, civilians, expert witnesses, accused etc), how long for opening/closing statements, a general idea of how long everyone may be on the stand, how long for each side to present their case. It can't really be predicted with 100% accuracy, but I would think they would have a general idea of what type of questions they will be asking and a general idea of how long this may take.

Disclosure is the Crown providing all the evidence they have to the defense. They MUST disclose everything they have prior to trial, which is probably the reason for all of the return appearances for the accused in court, at each visit they would be given additional disclosure if it were available or an idea if future disclousure will be coming.

Pretrials and Preliminary Hearings are a way of narrowing down the issues. Defense may agree that certain evidence the Crown has will be admitted and what will most likely be argued. It narrows the issues down and thus cuts down the length of trial time. It allows both sides a chance to focus their case in a particular area and prepare for the trial a bit better.

I think I've read on here that a change of venue has been discussed, given the size of Woodstock and the increasing popularity of the case, if the accused can't get a fair trial and that can be proven they may ask for a change of location. Picking a jury of your peers in a small town, I would think, would be incredibly difficult given the rumour spread, and finding someone who is impartial would be more difficult.

Challenge for cause for a jury is a list of questions that they would be asked to narrow down the jury pool to those they feel are most impartial. (If I'm recalling that correctly!!)

The courts in themselves are very busy and the government has laid out a plan to reduce the number of court appearances from the time of the charge being laid to a final outcome, however the court is still very busy and all of this just takes time. Neither side would want to rush into a trial until they had all of their "ducks in a row"!

Hope that helps!

Posted by izzy45 - AUG.11, 2009

Maybe this has already been answered, but I've seen it asked a couple of times, so maybe I can help out.

When an accused pleads guilty, typically the crown and defense will agree on what will be read in court prior to the plea itself. The presiding Judge still needs to hear enough information to assure him/herself the accused is guilty of the crime. If there is to be a plea, everything from what facts to be read in, a joint submission (maybe) on sentencing. The crown will read in their statement - usually a pared down version of events, the defense will let the judge know this is correct or if there is any more they wish to add and then there will be a finding of guilt. Prior to sentencing the accused will be asked if he/she has anything to add. The sentencing could be the same day or it could go over to another day - for a variety of reasons. Typically crown and defense will give a joint submission on sentencing - what they agree the sentence for the accused should be - however the presiding Justice does not have to accept it. Typically they do, but if the sentence is too lenient for example, they won't accept it and aren't bound to accept it.

One thing I have't seen mentioned is if there has been a ban on publication in regards to either accused. If there is, and given the nature of the crime there very well could be, a ban on publication could keep certain facts from ever being divulged in the media and would prohibit those who are in court as spectators from discussing the facts of the case outside of the courtroom depending upon which ban is in place....if there is one, but if there isn't one now, I would assume it would be asked for at some point.

Posted by izzy45 – AUG. 11, 2009 – Post #406

http://www.websleuths.com/forums/showthread.php?p=4037230&posted=1#post4037230

Hello!

I really think the third court appearance is a matter this substantial won't result in a whole bunch. She'll likely appear by video and pretty much just be remanded to her next court appearance. (Realistically with all that is involved, I'm sure she will make numerous court appearances via video - which I'm assuming they both are appearing by video for court at this point.) Coming to court is a way to for their counsel to gather any additional disclosure and get future dates for court appearances. They may set up a crown resolution meeting (not held in court), a pretrial (held in front of a judge) or a preliminary hearing (also in front of a judge). (So, yep, we do have prelims in Canada.) Given the nature of the crime - being murder - it's automatically going to have to go to trial in front of a Superior Court Judge, but holding a preliminary hearing will allow them to narrow down the issues, focus on witnesses, etc. (I think I talked about this before.)

During a prelim. hearing the accused will be in the court room, but not necessarily all of the evidence will be presented, they will be read the charges against them, they will be read their right to a trial by judge or judge and jury. At this point their counsel will say how they will elect to be tried and some evidence may be called. For example, it's an automatic that they will have their trial in front of a Superior Court Justice, but there may be a certain witness that the defense wants to hear from and it could be only one person called to the stand, could be more, or could be none. They could waive a prelim. hearing and just be "committed to trial". Typically prelims are open to the public, but as I posted this morning I'm sure a publication ban will be put into place, if it's not already, to protect the victim, their family, etc.

Unless I've missed something, and a plea is actually going to be entered, it wouldn't be if she's appearing by video. A plea can only be entered in front of a Judge and how they have been appearing so far has been by video - I think!- and a plea for murder is still done in front of a Superior Court Judge - unless it's a young offender, then it can be done by an Ontario Court Judge. (But, a plea of manslaughter could be taken in front of a Ontario Court Judge.) I don't think either will enter a plea anytime soon from what I've read, even if that is their ultimate decision, it would still take some time to set the date in front of the judge and get together a joint submission between the crown and defense.

I think it would be well into next year before a trial could be held.

Is it possible for LE or the prosecution (not sure who's responsible here) to only disclose enough evidence in the initial disclosure to get the charges laid and for them to hold back on some real hard hitting evidence until a later date or do they have to disclose everything to date at each court appearance?

TIA

Kamille said:

Is it possible for LE or the prosecution (not sure who's responsible here) to only disclose enough evidence in the initial disclosure to get the charges laid and for them to hold back on some real hard hitting evidence until a later date or do they have to disclose everything to date at each court appearance?

TIA

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I'm almost positive that it has been stated that everything has to be disclosed to the defense by the Crown at each appearance. Confirmation please?

MOO

Kamille said:

Is it possible for LE or the prosecution (not sure who's responsible here) to only disclose enough evidence in the initial disclosure to get the charges laid and for them to hold back on some real hard hitting evidence until a later date or do they have to disclose everything to date at each court appearance?

TIA

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No, it's my belief that everything must be disclosed if the crown has it. If from one court to the next new disclosure comes to light they must give it to them. Withholding disclosure and then defense finding out about it later would be a real no no.

Logically I would think that the police would date everything they get as they receive it, it would then be processed and passed on to the crown - not hard evidence, but on paper or disk, physical evidence stays with the police until trial - and then in turn would be passed along to defense. Having something that was found/dated months prior and only being given at a much later date would probably give defense counsel reasons to file some pretty heavy motions in court. (Just my thoughts...I could be wrong, but I would think I'm pretty close.) There would always be some sort of "tracking" system to follow back on for all parties.

Hope this helps.

During McClintic’s brief video appearance from the Elgin-Middlesex Detention Centre, the court heard that LeRoy had just received a “significant amount of disclosure” from the Crown Attorney’s office. As a pale McClintic stood silently, her dark hair pulled back from her face, LeRoy asked the court for an adjournment “to allow my client and myself an opportunity to review that disclosure.”

When asked later about the quantity of the disclosed evidence, LeRoy said the Crown had provided her with the equivalent of a computer hard drive.

“It’s going to take a substantial amount of time to review,” she said. “Much of (the disclosure), as you know, comes from my client.
“We will wade through all of it and make a determination which way we will go.”

http://www.oxfordreview.com/ArticleDisplay.aspx?e=1697080

I have a friend in Ireland who has been studying law for years and is "almost" a barrister. He loves to do research. When I asked a few questions, these were his replies:

They only really need a vague suspicion as grounds for arrest, but these grounds may never be admissable in court.

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Again you can arrest them, but there's a difference between arresting someone for a crime and charging them with it. In almost no common law countries (like Canada) will the courts allow a conviction for an uncorroborated confession - i.e. no fingerprints or other evidence to support the confession.

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Accomplice testimony may or may not attract a mandatory warning from the judge about the safety of convicting based on such testimony.

In a Canadian trial evidence offered by an accomplice will be remarked upon by the judge at the end of the trial. The judge will tell the jury that such evidence may be untrustworthy where it cannot be corroborated. This is known as a vetrovec warning. [1982] 1S.C.R.811 - Vetrovec v the Queen. See also R. v Kehler.

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Applying for a wiretap authorisation is covered by section 185 of the Criminal Code and is more stringent than applying for other warrants (interception of private communication by agents of the state without judicial authorisation is unreasonable search and seizure per Section 8 of the Charter). For a wiretap to be granted the Judge must be satisfied that it is in the interests of justice and that other investigative methods have failed.

Knowing whether Tori was dead or alive when they authorised the wiretap is very relevant here. If they thought she was still alive it may be an extraordinary excusing circumstance for violating the constitution (or it would be in Ireland anyway).

Also, importantly, wiretapping is authorised only to prevent bodily harm in Canada. So it seems that it cannot be used as an investigative tool just to gather evidence.

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It would seem that the question of the evidence required to charge a suspect with a crime is that the prosecutor must have reasonable and probable cause, which is "an honest belief in the guilt of the accused based on a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary, prudent and cautious man, placed in the position of the accusor, to the conclusion that the person charged was probably guilty of the crime imputed". Then note, in typical lawyer's fashion, this test contains both an objective and a subjective element. Subjective in so far as there must be an honest belief on the part of the prosecution and objective in so far as the evidence must be sufficient and reasonable. 'Reasonableness' in this context is solely a matter for the trial judge.

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I babysit kids whose parents are lawyers. (they actually went to law school with Michael Bryant - the politician charged with the hit-and-run death - big news in that community!)

We talked about this case (very briefly), and I mentioned the suspicion that MR's lawyer had something to do with the locating of the body (since he quit right before the body was found). She doesn't believe this happened...
Apparently a lawyer can't/shouldn't snitch on their client.
If a crime is in the process of being committed, they have an obligation to report it (to prevent the crime from occurring).
She said that if the lawyer knows their client killed someone, they can "cause doubt" in the courtroom, but it's unlawful for them to actually deceive people into thinking something else happened...

We just spoke briefly and she said it was more complicated than this, but just thought you guys would find this info interesting!

This How-To Brief outlines the steps to take when preparing for a judicial pre-trial conference from the review of disclosure to the completion of the pre-trial conference.

Step 1: Disclosure Review
Step 2: Procedural Decisions
Step 3: Complete the Pre-Hearing Conference Form
Step 4: Interview the Client
Step 5: The pre-hearing Conference
Step 6: Follow-up tasks
Statues and Rules


From the Law Society of Upper Canada


http://rc.lsuc.on.ca/jsp/ht/prepareJudicialPreTrialConference.jsp

Based on facts or supposition known thus far, what does everyone think the strengths and weaknesses are in this case, for each defendant?

Here are two useful links:

http://rc.lsuc.on.ca/library/home.htm


http://rc.lsuc.on.ca/library/services_websites.htm

Criminal Proceedings at the Superior Court of Justice of Ontario

The Superior Court of Justice is a superior court of criminal jurisdiction. While less serious criminal cases are heard by the Ontario Court of Justice, the judges of the Superior Court of Justice hear the more serious criminal cases under the Criminal Code of Canada.

http://www.ontariocourts.on.ca/scj/en/about/criminal.htm

Pre-Trial:

.....Where all accused persons are represented by lawyers, the conference is generally held in a pre-trial room, the judge’s office, or another room in the courthouse. The accused persons do not attend the conference.

Whether the pre-trial conference is in or outside of the courtroom, any discussions that occur cannot be repeated at trial, unless all parties agree. Any statements made by an accused person at the conference are not admissible at the trial.

The judge presiding at the pre-trial conference cannot preside at the trial without the agreement of both the Crown and accused person, although he or she will prepare a report to the trial judge. The report cannot make any reference to resolution discussions.

[FONT=Arial,Arial][FONT=Arial,Arial]What is the Purpose of the Pre-trial Conference? [/FONT][/FONT]

All pre-trial conferences address two issues: case management, and resolutions. Case management includes how the trial will be conducted, such as: will it be a judge and jury trial or judge alone; if it is a jury trial, will there be a challenge for cause requested by the accused, where he or she wants to question potential jurors regarding bias or prejudice against the accused because he or she is a member of a visible minority, or as a result of pre-trial publicity etc; will there be pre-trial applications regarding the admissibility of evidence?

http://www.ontariocourts.on.ca/scj/en/about/forms/SR.pdf

A Pro Bono Ontario Law site, sponsored by Legal Aid, The Law Society of Upper Canada and The Law Foundation for Ontario.

Interestingly, it has an online Law Help Live Chat feature, also. Not operating currently, but, hey, may be useful.

http://www.lawhelpontario.org/

Canadian Department of Justice:

A to Z Reference for the Canadian Justice System

http://www.justice.gc.ca/eng/az.asp

Turbododger said:

Based on facts or supposition known thus far, what does everyone think the strengths and weaknesses are in this case, for each defendant?

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TLM:
Strengths: Cooperated with police to find the body. Since she's younger, and female, she can play the "I was manipulated" card.
Weaknesses: Captured on video walking away with TS. Has a criminal record, and generally gives a mentally unstable/psychotic impression (JMO).

MR:
Strengths: Not captured on video (??). Seems more stable than TLM, and has some support from friends/girlfriend (JMO). Doesn't appear to have a criminal record.
Weaknesses: Car caught on tape.

I'm tired; that's all I've got so far. Maybe people can build on that.

girl_next_door said:

TLM:
Strengths: Cooperated with police to find the body. Since she's younger, and female, she can play the "I was manipulated" card.
Weaknesses: Captured on video walking away with TS. Has a criminal record, and generally gives a mentally unstable/psychotic impression (JMO).

MR:
Strengths: Not captured on video (??). Seems more stable than TLM, and has some support from friends/girlfriend (JMO). Doesn't appear to have a criminal record.
Weaknesses: Car caught on tape.

I'm tired; that's all I've got so far. Maybe people can build on that.

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I agree with your analysis. Not having a law degree, I can't be sure, but maybe if the Crown can get any of MR's old girlfriends to testify that he had a sadistic sexual streak, it can be viewed as a weakness for his case. (Although, personally I don't equate a mild sexual fetish between two consenting adults with a pedophilic murderer.) However, the "car caught on tape" is only damning if there is some kind of proof that Tori was in it. Without that evidence, it means nothing - it's not even circumstantial.

MOO

Does anyone know the requirements for bail? Someone raised the point about no bail being offered in this case. Is that a fact, or were the accused not able to raise the funds? (legal eagles....???)