Activity 2n

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of the responsibilities of the parties to achieve the principles of justice requires students to write about relevant strengths and weaknesses. Responses will vary according to the arguments selected.

          Arguments in support of the responsibilities of the parties achieving the principles of justice include:

• A high level of party control may lead parties to feeling more satisfied with the outcome of the case, because they have had the opportunity to select their best evidence and rigorously test the evidence led by the other side.
• Parties are not powerless in the hands of the court for resolution: plea negotiations allow the parties to make many decisions regarding the severity of the charges, whether to enter a guilty plea, and at what point to do this. This allows the parties to exercise control over the duration and resolution of the dispute.
• The Crown has the responsibility to include the victim at each stage, ensuring that important stakeholders are given access even though they are not parties.For example, the OPP must consult with the victim regarding plea negotiations with the accused, and the Crown must tender victim impact statements during sentencing.
• In order to equalise the power between the government and the individual accused, the prosecution has the responsibility to share more information with the accused than the accused has to in return, and the responsibility to act as a fair advocate rather than an adversary. For example, in sentencing, precedent prohibits the prosecution from seeking a sentence that is too harsh and out of line with sentencing principles such as proportionality and current sentencing trends.
• Parties are given opportunities to test the processes of the court and to argue errors they believe might have been made in either the trial or sentencing. This increases the perception of fairness, because avenues of appeal are open until either both parties are satisfied or the full bench of the High Court has heard the grounds for the final appeal and either accepted them or rejected them.

         Arguments against the responsibilities of the parties achieving the principles of justice include:

• Party control disadvantages the accused and benefits the Crown. The accused is usually a single individual, and may be self-represented; the Crown is represented by the OPP, which hires experienced prosecutors and is led by an expert Director. It also has the resources of the police at its disposal.
• Party control may lengthen the duration of trial, because the parties are making decisions from within the adversary system: the adversary system discourages cooperation and making admissions, because it creates one winner and one loser. Parties, particularly the accused, may make strategic decisions rather than efficient or cooperative ones.
• Parties are given unequal responsibilities at points in the resolution, producing a situation of inequality. For example, the prosecution is not allowed to suggest a sentencing range to the court, but the defence is. The prosecution is also not permitted to submit any unsworn evidence to the court in sentencing, whereas the defence is. This gives the defence an advantage.
• The prosecution has a responsibility to fully disclose all relevant evidence, whether it is good or bad for the prosecution case, but the defence does not have a corresponding obligation. For example, the defence has no responsibility to disclose its evidence or the details of its defence before trial. The defence also has no obligation to disclose unfavourable facts at sentencing, such as evidence of bad character or prior convictions – the prosecution has an obligation to inform the court if it has evidence the offender is of good character, however.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against one responsibility of the parties, that it does achieve the principles of justice. Responses will vary according to the arguments selected.