Chapter 8,9,10 Flashcards
The differences and Similarities of trier of law and trier of fact
trier of fact
the person or people who must decide what facts have been proved at a criminal trial (either the judge or the jury)
The trier of fact is either the judge (in a trial by judge alone) or the jury (in a trial by judge and jury). The trier of fact is the party that will make final decisions, based on the evidence, about what is true and what is not true. For example, the trier of fact will decide whether or not the accused was the person who pulled the trigger.
The trier of law is always the judge. It is the judge’s job in every trial to interpret the law and apply it to the proven facts of the case. The judge, for example, decides the legal question whether a specific piece of evidence should be admitted into the trial. If the trial is by judge alone, the judge will act as both trier of fact
In trial procedure who testifies first
The prosecution is then required to present its evidence against the accused. Any witnesses presented by the prosecution may be cross-examined by the defence to test the trustworthiness of their evidence. As discussed in Chapter 5, the prosecution must be very careful to present evidence to prove each element of the offence with which the accused is charged. Failure to do so will result in a failure of the prosecution and the acquittal of the accused.
- Prosecution has the burden of proving an
accused person’s guilt at trial to the criminal
standard of proof—that is, proof beyond a
reasonable doubt - The defence is not required to present any
evidence - In some cases, however, the defence may
choose to present evidence, if only in an attempt
to create a reasonable doubt about the evidence
presented by the prosecution
What is criminal information
Informations
* Sworn by a police officer
* Based on knowledge or
reasonable and probable
grounds
* Becomes record of court
appearances, pleas, and
elections
* Form 2
The first type of charging document is an information. It is usually sworn by a police officer, and contains a criminal charge against an accused. It is used only for offences tried in provincial court (in Ontario, the Ontario Court of Justice) or youth court
What is the make up of information
An informant, who is typically a police officer, swears to a justice of the peace that they have knowledge or reasonable and probable grounds to believe that the accused committed the offence in question. For hybrid and indictable offences, if the accused has not yet been arrested, the justice must hear and consider the allegations at a hearing that is not open to the public, known as a pre-enquete hearing. Added to the information later are a list of all court appearances and the purpose for each, the names of all court officials present, all elections made by both the prosecution and the accused, any detention orders, the outcome of a preliminary inquiry if one has been held, and any adjournments.
What are Positive affirmatives and True defences
positive (or affirmative) defence
a trial defence where the accused and their lawyers actively attempt to refute the evidence of the prosecution and perhaps introduce evidence of their own to clear the accused
True defences are those that involve the defence lawyers attempting to prove a new fact or facts that tend to negate the existence of one or more of the elements of the offence or tend to attack the charges themselves. These defences may be subdivided into four categories: justification, excuse, entrapment, and alibi.
Make up of a jury
A jury in a criminal case typically includes 12 people. Jurors must decide unanimously on a conviction or an acquittal. The jury is involved only in determining guilt—it is not involved in sentencing. The one exception is that the jury may make recommendations about parole eligibility in second-degree murder cases. Rules relating to juries are found in part XX, sections 626 to 644 of the Criminal Code. Several of these sections were amended on September 19, 2019 with the passage of Bill C-75. These amendments were implemented to make the jury selection process fairer.
The different Sections of the Criminal Code
The Criminal Code of Canada is divided into 28 main parts, each covering different aspects of criminal law. Here’s a brief breakdown:
Part I – General
Part II – Offences Against Public Order
Part II.1 – Terrorism
Part II.2 – Offences Relating to Official Documents
Part III – Firearms and Other Weapons
Part IV – Offences Against the Administration of Law and Justice
Part V – Sexual Offences, Public Morals, and Disorderly Conduct
Part VI – Invasion of Privacy
Part VII – Disorderly Houses, Gaming, and Betting
Part VIII – Offences Against the Person and Reputation
Part VIII.1 – Offences Relating to Conveyances (includes impaired driving)
Part IX – Offences Against Rights of Property
Part X – Fraudulent Transactions Relating to Contracts and Trade
Part XI – Wilful and Forbidden Acts in Respect of Certain Property
Part XII – Offences Relating to Currency
Part XII.1 – Instruments and Literature for Illicit Drug Use
Part XIII – Attempts, Conspiracies, and Accessories
Part XIV – Jurisdiction
Part XV – Special Procedure and Powers
Part XVI – Compelling Appearance of an Accused Before a Justice and Interim Release
Part XVII – Language of Accused
Part XVIII – Procedure on Preliminary Inquiry
Part XVIII.1 – Case Management Judge
Part XIX – Indictable Offences — Trial Without a Jury
Part XIX.1 – Nunavut — Alternative Measures
Part XX – Procedure in Jury Trials and General Provisions
Part XXI – Appeals — Indictable Offences
Part XXII – Procuring Attendance
Part XXII.1 – Remediation Agreements
Part XXIII – Sentencing
Part XXIV – Dangerous Offenders and Long-term Offenders
Part XXV – Effect and Enforcement of Undertakings
Part XXVI – Extraordinary Remedies
Part XXVII – Summary Convictions
Part XXVIII – Miscellaneous
When sentencing what may influence a judges decision
Under section 718.2 of the Criminal Code, the court can take into account any aggravating or mitigating factors when imposing a sentence. One or more aggravating factors—that is, factors that make the crime more serious—may result in a harsher sentence than the norm; one or more mitigating factors—that is, factors that make the crime less serious—may result in a lighter sentence than the norm.
Some examples of aggravating factors that may increase the sentence include the following: the crime was motivated by hatred of an identifiable group (hate crime); the offender abused an intimate partner or a member of the victim’s or offender’s family; the offender breached a position of trust with respect to the victim; or the offence was committed for the benefit of a criminal organization. Other aggravating factors include evidence that the offence had a significant impact on the victim due to their age, health, or financial situation; evidence that the crime was gang-related or terrorism-related; or evidence that the offender was on parole at the time of the offence.
Mitigating factors that may lessen the sentence include the following: the accused was provoked by the victim; the accused is a first-time offender; and/or the accused has shown evidence of remorse or rehabilitation. Unfair or improper (though not necessarily illegal) conduct by law enforcement officials or prosecutors may also lead to a reduced sentence. An example is the Crown deliberately delaying the trial.
Pre sentence reports
Pre-Sentence Report
* The judge may order a pre-sentence report under
section 721(1) of the Code.
* Prepared by a probation officer before sentencing and
filed with the court
* Contains information on the background and character
of the offender
Dangerous Offenders
- Special designations available where the sentence
imposed is not sufficient to protect the public - Where offender is particularly dangerous or has
shown they will likely reoffend - Available only for certain categories of offences
- For the designation, the offender must have
committed more than one such offence
The national sex registry
Where offender is convicted of “designated [sex]
offence,” Crown can request registration order
* Offender must report to registration centre;
personal information is collected
* Prompt updates (e.g., upon moving) required
* Duration of registration depends on nature of
offence; in some cases, registration is for life
Pardons
Record Suspensions
* Previously known as a “pardon”
* Not automatic
* To be eligible, person must have:
* Completed his or her sentence
* Lived in the community without reoffending for
required period
Parole Board considers:
* Whether applicant has been “of good conduct”
* Whether suspension would:
* Provide benefit to applicant
* Sustain his/her rehabilitation in society
* Not bring administration of justice into
disrepute
* Summary conviction offences: 5 years
* Indictable offences: 10 years
How to fix a breach of contract
Remedies
* How to fix a breach of contract
* Generally damages (ie. money)
* Restitution
* Reliance
* Expectation
* Specific performance
strictly speaking, the law of contracts provides a remedy in the event of a breach (but will only rarely enforce the specific terms of an agreement) once certain required criteria are proved to exist. A party has breached the contract once there is a failure to do what was promised. The availability of a remedy for breach of a contract depends on the enforceability of that contract; in other words, a court will not provide a remedy unless the contract was created according to the rules of contract law.
What is a tort
Torts
* A wrong suffered by one person for which another
person may be found responsible
* Generally involves element of fault
1. Negligence
2. Occupier’s liability
3. Intentional torts
4. Nuisance
5. Strict liability
What is included in a contractual defect
A contractual defect is a legal problem with a contract. Serious defects can render a contract invalid; more minor defects can give the party who is adversely affected by them the right to sue the other party for damages, but not the right to repudiate (get out of) the contract.
To constitute a contractual defect—that is, a factor that affects the enforceability of the contract—a misrepresentation must:
be based on a fact that is asserted to be true,
have been false when it was acted on, and
have induced the other party to make the contract.
