Chapter 3 Flashcards
What is statute law ?
The body of principles and rules of law laid down in statutes.
What is case law ?
Case law is made up of the written decisions of judges in court cases and tribunals.
What is “stare decisis”
“To stand by decided cases”
Precedent
What is the rule of law ?
That there is no higher power then the law, nobody is above the law
What does it mean by Canada has a adversarial system ?
It means that if someone commits a crime then it is said to be “the accused” versus “the state/Crown”
What are some powers that the federal government has ?
- Determines criminal law and available sentences
- Operates federal correctional institutions
- National Parole Board (ON and QC have their own Prov. Parole board for sentences less then 2 years )
- RCMP ( Can also be hired to act as municipal police force
What are some powers that the provincial government has?
- Prosecutes criminal offences
- Quasi-criminal offences
- Provincial police forces and oversee municipal police force ( ON, QC and Newfoundland and Labrador have own prov. police force)
- Provincial correctional facilities
- Parole boards in some provinces ( Ontario and Quebec)
What are some powers that the municipal government has?
- Bylaws
- Operate municipal police forces
What is a “reference question” in law ?
A legal question asked to the courts.
Example : “ If this certain crime happens and this and that happens too what would the outcome be?”
Usually seen in BCSC court or higher
What is the hierarchy of courts?
- Supreme Court of Canada
- Provincial Court of Appeal
- Superior Court of British Columbia
- Provincial Court of British Columbia
What do the 2 lowest courts have different from the 2 higher courts ?
BCPC has a trial and it is by one judge while the BCSC also has a trial but is decided by 3 - 5 judges.
While the 2 higher courts ( BCCA and SCC) don’t have trials and they are mainly trying to answer a question of law
Define what a crime is
A crime is an act or omission prohibited by criminal law.
Omission means “failure to act” , mostly used for civil law
What are the 2 elements to a crime ?
- Actus reus : That the event or state of affairs was caused by the accused.
- Mens rea : The state of mind of the accused.
What is the automatism defence ?
A state of impaired consciousness in which an individual, though capable of action, has no voluntary control over the action.
What are the 4 categories of automatism ?
- “Normal” conditions
- An external trauma
- Involuntarily induced intoxication
- Self-induced intoxication
What does NCRMD stand for ?
Not Criminally Responsible on Account of Mental Disorder
What must be proven to make a NCRMD case valid?
- There was a disease of mind at the time of the offence AND
- a) The accused could not appreciate the nature and quality of the act OR
b) The accused could not know that the act was wrong ( Morally wrong )
What is necessity ?
Where it is naturally caused and one must break the law to avoid some greater evil.
What is duress ?
Where it is caused by a individual and one must break the law to avoid some greater evil.
What do necessity/duress cases need to have to be considered valid ?
There must be :
- Imminent peril or danger
- No other reasonable alternative
- Proportionality ( Speed, pass red lights to get to hospital is proportionate but running over someone and killing them to get to the hospital… not so much)
What is the “air of reality test”
There needs to be a basis/grounds why a certain defense was raised, can not be a random defense raised.
What is self defense ?
The actions of the accused are a justified response to the provocative behaviour of the victim.
What are the required things that are needed to make a self defense case valid ?
- Accused must have a reasonable belief they are in danger of death or greater harm
- Threat must be imminent
- They must believe force is necessary to protect themselves.
- They can use no greater force than what is necessary (proportionate)
What is the battered woman syndrome ?
It is not a defense, it is the admission of expert evidence in court to explain the use of self-defense for victims of intimate partner violence.
