Chapter 7 Flashcards
Criminal Wrongs
are those activities that are regulated by the criminal code of Canada or federal statutes
Civil Wrongs
torts) are those acts, either intentional or unintentional, that cause harm or injury to another person on their property
Tort
is a private, civil matter between the victim and the offender (victim applies to court for compensation)
Crime
is a public matter between the accused and the state (state prosecutes offender for punishment and protection)
Rule of Law
no one is above the law and that all people are equal before the law
Certainty of Law
law must be certain not vague, any vagueness or uncertainty in the law must be interpreted to the benefit of the accused
Procedural protections of the charter
all other laws must comply with its provisions, in particular sections 7-14 ( life, liberty and security of person, security from unreasonable search and seizure etc)
Actus Rea
is the physical action that constitutes the crime, and there must be some evidence of that unlawful conduct
Determining Actus Reus
- Omissions- failure to act ( committing a crime by NOT doing something)
- Automatism- if a person is not conscious of what he is doing there is no actus reus
- Causation- did the action of the accused result in the injury or death?
Mens Rea
is the requirement that a guilty mind be behind the act that constitutes the crime
Motive
reason why the accused committed the act
Subjective Test ( looking at intent)
takes into account the personal circumstances of the accused and seeks to determine what was actually in his or her mind when the act occurred
Objective Test (Looking at intent)
expected by society and is based on the assumption that the person was or ought to have been more aware of that standard
Mistake of Fact
Defence used to show there was no intent ( taking goods that are not yours however you were not aware of that
three categories of offences
- General-
- Strict Liability-
- Absolute Liability
General ( Offence)
criminal Offences in which the prosecution must prove mens rea
Strict Liability
public welfare or regulatory offences where the crown must prove the act but the accused must prove a mistake of fact was based on a reasonable belief
Absolute Liability
the crown does not have to prove intention, the proof of the unlawful act is sufficient to convict and the defence of mistake is not available
Burden of Proof
Beyond a reasonable Doubt ( because the accused is considered innocent until proven guilty)
Ignorance of the Law is No excuse
NO EXCUSE
Admissible Evidence
evidence that the court determines has been legally acquired
Voir Dire
Judge holds a trial within a trial when the evidence is questioned, and the judge decides if the evidence is admissible
Confession
if accused makes a voluntary confession it can be used against them
Illegally Obtained Evidence
any evidence obtained illegally can not be used, Example: R. v Feeney
Defences
Mistake of fact, necessity, self-defence, compulsion, insanity, intoxication, consent, provocation
Mistake of act
accused must prove that they were honestly mistaken as to an essential element of the offence
Necessity
circumstances compelled the accused to commit the unlawful act
Self Defence
Defend oneself Example: R. v Lavallee and R v Malott 9page 153) battered wife syndrome
Compulsion
the accused not having the capacity to form the intention to commit the unlawful act because of threat or coercion
Insanity
person is not criminally responsible for an act or the failure to act while suffering from a mental disorder
Intoxication
the prosecution must prove that despite intoxication the person was still able to form intent
Consent
if the victim consented to the action taken against them, ( punch in a boxing match)
Provocation
is an insult or wrongful act sufficient to deprive an ordinary person of the power of self control ( it is not a defence by it can reduce a charge)
Subjective Test
- takes into account the personal circumstances of the accused and seeks to determine what was actually in his or her mind when the act occured
objective test
expected by society and is based on the assumption that the person was or ought to have been more aware of that standard
admissible evidence
evidence that the court determines has been legally acquired
Types of Offences
Summary Offences
Indictable Offences
Hybrid Offences
Summary Offences
less serious offences, accused can send a counsel or agent to appear at trial in his or her place and an accused who is in prison can appear by video, being accused of a summary offence means you are liable to a fine of not more than 2,000 dollars or to imprisonment of 6 months or both
Indictable Offences
- more serious offence, accused must appear personally in court, accused can choose trial by judge or by jury, for some very serious ones the accused must be tried by a higher up court judge
Hybrid Offences
crown can decide whether to charge by way of summary or indictable
Accomplice
someone who aids or abets in the commission of an offence
Accessory after the fact
is someone who knows a person has committed an offence and receives, comforts, or assists that person for the purpose of enabling an escape
Attempt
a person can be a party to a crime even if the parties were unsuccessful in committing the offence
Counselling
even if offence is not committed, a person who counsels committing an offence is guilty of an offence
Conspiracy
- two or more people enter into an agreement to commit a crime
Joinder Of Accused
counsel can decide to join the cases of two or more parties, meaning that the trials are heard together
R v Lavalee
- in abusive common law relationship, husband threatened to harm her and said kill me or ill get you and lavalee shot him in the back of the head
R v Malott
common law spouses, had two kids, the husband abused the mother emotionally etc, went to police however he was a police informant, They separated and took his son, lived with his girlfriend, The wife lived with the husbands mother. Contact continued, on the day of shooting she went with the husband to a medical center, she shoot him to death at the center, and drove to the girlfriends house and shot her but she survived, Jury found her guilty on murder of the husband and the attempted murder of the GF
Preliminary hearing
defence has right to this, prosecution must present the evidence and witnesses testifying under oath to establish whether or not the crown has a sufficient case to warrant a trial
Plea
accused is asked if they plead guilty or not guilty
Appeal
if either the crown or the accused believe the judge made a mistake in law they can appeal to a higher court to turn over the decision
Parole
after serving about 1/3 of the sentence, the offender becomes eligible for parole
Lay the information
anyone who on reasonable grounds believes a person has committed an offence may lay an information ( a document in writing and under oath before a justice of the peace)
Sentencing
- probation order- report to probation officer at certain times etc
- sentence of imprisonment
restitution- offender must make recompense the victim
