Chapter 5: The History and Structure of Criminal Law Flashcards
Substantive Criminal Law
Law that prohibits undesirable conduct and that prescribes punishment for specific offences.
Procedural Criminal Law
Law that provides direction on how to proceed within the criminal justice system.
What are 3 sources of criminal law?
- Constitution.
- Statute (legislative) law.
- Common (case) law.
What does the constitutions say about criminal law?
Presumption of innocence, right to be charged within a reasonable period of time, right to a jury trial in serious case, right to not be subject to cruel or unusual punishment.
Criminal law can only be enacted by the ___ government.
Federal, through parliament.
Administration of justice is a ___ matter.
Provincial/territorial.
Criminal law cannot go against the ___.
Charter.
What is considered to be the supreme law of Canada?
Constitution.
What is statute (legislative) law?
Law that is laid out by government that abide by the constitution.
What are codified laws?
Written down as part of the public record.
What is quasi-criminal law?
Not true criminal law, enacted by provinces and territories.
Regulatory laws are examples of ___ ___ laws.
Quasi-criminal.
Why is common law necessary?
To sort out the ambiguity in statute law.
What is judicial precedence?
Based on state decisions, you need to stand by what has already been decided.
What is the hierarchy as far as judicial precedence is concerned?
Lower courts need to follow higher courts, and courts on an even level need to follow each others’ precedent.
How is the hierarchy as far as the types of law is concerned?
Constitution is the highest, then statues, then common law.
“Laws should be prospective, not retroactive.” What does this mean?
Laws have to be laid down in advance, and we have to know what to expect going forward. We cannot hold people accountable for laws that did not exist at the time. Use prospective, not proactive.
“Laws should be stable.” What does this mean?
Laws should be resistant to arbitrary change.
“Clear rules and procedures for making laws.” What does this mean?
The procedure should be laid out in the constitution.
“Independency of the judiciary is guaranteed.” What does this mean?
Judiciary is separate from government, people who make laws should not judge people for breaking those laws.
“Natural justice should dominate.” What does this mean?
Based on the ideas of equality and fairness. Certain principles govern how the justice system works.
“Courts should have the power of judicial review.” What does this mean?
Judges can scrutinize laws, policies, and practices to ensure they are consistent with the Charter and the Constitution.
“Courts should be accessible to the public.” What does this mean?
Citizens should have access to justice– they should have their day in court.
“Discretion of law enforcement should be exercised according to fixed and pre-determined rules.” What does this mean?
Police have to abide by rules too.
What are summary offences?
Less serious type offences, where the maximum penalty is incarceration of 6 months or a fine of $5000. Crown has 6 months to begin proceedings.
What are indictable offences?
More serious type offences, including murder.
What are mixed/hybrid offences?
Can be tried as either summary or indictable offences, at the discretion of the Crown.
What is mala in se?
Wrong in themselves, inherently wrong. Crimes such as murder.
What is mama prohibita?
Wrong because the law says so. Drug laws, prostitution. Does not directly harm others.
The Provincial Court System has _ tiers.
3.
What is the lowest tier in the Provincial Court System?
The Provincial Court.
What is the Provincial Court?
The lowest tier in the Provincial Court System, where there are separate divisions. Criminal has specialized courts, such as domestic violence, Aboriginal, or drug treatment.
What is the difference between a fixed and circuit court?
Fixed courts stay in one place, while circuit courts are brought in based on need.
About __% of criminal cases are heard in provincial court.
90.
Provincial court judges are appointed and paid for by the ___ government.
Provincial.
Are there juries in provincial courts?
No.
What is the superior court also known as?
The Court of Queen’s Bench.
What is the Superior Court?
Handles the more serious criminal offences (indictable offences).
Superior court judges are appointed and paid for by the ___ government.
Federal.
___ combines their superior and provincial courts into a unified court.
Nunavut.
What is the Provincial Court of Appeal?
An appellate court, where cases appealed from the provincial or superior court go.
The ___ court system is not involved in criminal matters, and only deals with matters between individuals and the federal government, or matters between individuals and certain government agencies.
Federal.
What is the Supreme Court of Canada?
The highest authority, who has the power to define which lower court decisions reflect the laws and the constitution.
The Supreme Court of Canada is an appeals court, and is also known as the Court of ___ ___.
Last resort.
Supreme Court of Canada has _ judges, of which 3 are from Quebec.
9.
The Supreme Court of Canada hears only criminal cases. True or false?
False, also hears civil and constitutional cases.
How many cases does the Supreme Court of Canada hear on a yearly basis?
70-90.
What does it mean when the Supreme Court of Canada is called upon to make a reference?
Rule on the constitutionality of some policy, practice, or law. The decision made is binding.
