Chapter 8 & 9 Flashcards
Judge
- “bench”/”court”
- appointed by fed/prov govs and must have 10 years of legal experience
- controls events in courtroom, decides guilt or innocence (if no jury), interprets law
Justice of the peace
- less authority than judge but still appointed by gov
- don’t have to be lawyers but need some legal background
- issue arrest/search warrants, hear bail applications, and can issue fines (but can’t send you to jail)
Prosecution
- represents gov/society
- role is not to obtain conviction but to obtain credible evidence
- must present evidence even if it weakens their case
Defense
- represents accused
- shows there’s reasonable doubt (if accused pleads not guilty)
- will recommend appropriate sentence (if accused pleads guilty)
- accused doesn’t have to take stand
Court clerk
- reads out charges, swears in witnesses, tags evidence
Court recorder
- records everything people say during trial
Sheriff
- brings accused to court
- finds jurors
- does administrative work (serves summons and carries out court orders)
Witnesses
- give evidence under oath concerning knowledge of crime
- may be forced to testify by subpoena
- commit perjury if they knowingly make false statements on the stand
Jury
- 12 in criminal, 8 in civil
- ordinary citizens
- listen to evidence and follow judges instructions
- decide on guilt or innocence (must be unanimous in criminal trial)
Jury duty
- receive summons in mail from sheriff to appeal in court
- employers are legally obligated to let people participate in jury duty
- to be a juror, you must be Canadian citizen, 19+, and BC resident for 1+ years
Exemptions from Jury Duty
- full-time student
- health issues, childcare issues
- nursing mother
- self employed or business would be threatened by your absence
- limited ability to speak English
- firm travel plans conflict with trial
- inconvenience is NOT an excuse!!
You can’t be a juror if…
- you’re an elected official
- you work in the justice system (lawyers, police, probation officers, or law school students)
- you’re in the military
- you’ve been convicted of a crime and spent 2+ years in prison
Compensation for Jurors
- receive a small fee for each day you serve
- must provide their own meals unless they’re deliberating the verdict
Empaneling
- jury selected from randomly collected jury panel from voters list
- potential juror goes before court
- crown and defence ask juror basic questions
Arraignment
- first hearing and plea is entered
- if accused enters a not guilty plea, jury selection begins
Challenges to Jurors
- challenge of jury list (prove jury was created unfairly)
- challenge for a cause (juror doesn’t meet requirements…can’t speak English or has opinion about case, etc)…unlimited number
- peremptory challenge (no reason needs to be provided)…set #…20 for serious cases
What happens when you’re selected as a juror?
- if selected, jurors will be sworn in
- jurors must not discuss case with anyone, read media about case, or leak info discussed between jurors
Sequester
- can happen for entire case if it’s high profile
- always happens when a verdict is being reached in any trial
Advantages of Jury
- only need to convince one of reasonable doubt and you’re off the hook
- may look at social values of the time to consider verdict
- may be empathetic to accused
Disadvantages of jury
- may bring personal prejudices into trial (judge can’t)
- may not understand legal technicalities of case
- may be easily swayed by smooth-talking lawyer (unlike judge, who will look at facts)
Self-incrimination
What witnesses say in court can’t be used against them later
Privileged communication
- can’t be required to be presented as evidence
- ex. Conversations between accused and spouse, lawyer, or church official
Similar fact evidence
- shows accused has committed similar offences in the past in order to discredit them
- must be relevant to case
Hearsay evidence
- something that someone other than the witness has said or written
- usually not admissible unless someone’s on their deathbed
Opinion evidence
- what an expert witness thinks about certain facts in a case
- must be relevant and necessary to help judge/jury reach decision
Character evidence
- evidence of negative character traits and previous convictions of the accused
- can only be used by crown if Defense brings it up first…otherwise no
Photographs
- may only be entered as evidence of they are an accurate portrait of the crime scene
Interception devices and video surveillance
- can only be used if criminal code procedures have been followed and must be treated as a last resort
Polygraph evidence
- inadmissible due to lack of credibility
Confessions
- the accused’s acknowledgement that the charge, or some essential part of it, is true or untrue
- can be excluded from evidence of statement was taken involuntarily or before they were informed of charter rights
Inculpatory
An admission
Exculpatory
A denial
Alibi
- places accused somewhere else at the time the crime occurred
- best Defense
Self Defense
- defending yourself using only necessary and reasonable force
- okay defence
Legal duty
- allows certain people to commit acts that would otherwise be offences (ie. Police officers can speed when chasing a criminal)
- very good Defense
Excusable conduct
Behaviour that can be rationalized as to why you committed the crime (ie. Provocation, necessity, duress, honest mistake)
Provocation
- you were provoked…can use as partial Defense
- bad Defense
Necessity and duress
- duress: threat or use of violence
- necessity: had to break law in urgent situation
- okay Defense
Honest mistake
- Offender truthfully didn’t know they were committing a crime…no intent
- okay Defense
Mental disorder
- accused was not mentally fit at time of offended or isn’t mentally fit to stand trial
- good Defense
Intoxication
- can be used to lower convictions because intoxicated people can’t form specific intent
- bad Defense
Automatism
- unconscious, involuntary behaviour (ie. Sleepwalking)
- good Defense
Consent
- can only be used if person who got injured consented to it (ie hockey players consent to get injured)
- bad Defense
Entrapment
- a police action that encourages/aids someone in committing an offence
- bad defence
Mistake of fact
- can be used if mistake was genuine and you weren’t ignoring the facts (ie. Receiving a counterfeit bill)
- okay Defense
Double jeopardy
- you can’t be charged twice for the same crime
- very good Defense
Adversarial system
- crown vs defence
- crown must prove case beyond reasonable doubt
Steps in a trial
- Arrest
- Disclosure
- Arraignment (enter plea, empaneling)
- Crown presents case (opening statement, witnesses, rests)
- Defense presents case (opening statement, witnesses, rests)
- Crown summation (closing statements)
- Defense summation (closing statements)
- Charge to the jury (judge points out laws that need to be considered & weight of evidence)
- Verdict (jury deliberates, must come up with unanimous decision)
- Sentence
Opening statement
Summaries case against accused
Presentation of evidence
Must be reliable relevant and fair, and must be proven
Direct evidence
Testimony from witness who saw the crime
Indirect/circumstantial evidence
Suggests a high probability of the crime…not enough to prove guilt
Examination in chief
First witness questioning period, no leading questions
Cross examination
After crown, Defense asks questions and can ask leading questions
Directed verdict
If Defense feels crown hasn’t proven case, they can ask for a not guilty verdict
Supeona
- A court order for a witness to appear in court
- if they fail to do so, they can be charged with contempt of court and arrested
Voir dire
A trial within a trial to determine if evidence is admissible
What judge looks for when sentencing
- precedent
- time spent in custody
- circumstances of the accused
- ability to rehabilitate
- victim impact statement
Deterrence
Making an example so that others and the criminal don’t commit the crime themselves
Retribution
Payback or revenge for the crime (society has moved away from this)
Rehabilitation/re socialization
Helping prisoners become ready to re-enter society to reduce recividism (return to prison due to relapse in crime) through counselling, etc
Segregation
Removing criminals from society so they can’t repeat their offence or commit new ones
Absolute discharge
No conviction recorded, no conditions attached
Conditional discharge
No conviction recorded IF they follow conditions in probation order
Suspended sentence
Delay the sentence, but conviction is still recorded
Probation
Requires accused to be of good behaviour, appear in court when asked, etc.
Suspension of a privilege
Suspension of a social privilege (ie. Driver’s license)
Binding over (peace bond)
Court order requiring person to be of good behaviour for up to 12 months (used in assault cases)
Restitution (compensation)
Requires offender to repay the victim
Community service
Offender must work in community to make a social contribution
Deportation
Non-Canadians can be sent back to their country for committing a serious crime in Canada
Fines
Sometimes a fine will be paid instead of prison, sometimes it will be paid on top of a prison sentence
Imprisonment
Canadians can go to jail for up to 6 months for summary, life for indictable
Capital punishment
The death penalty (abolished in Canada since 1976)
Concurrent sentence
When offenders are convicted of 2 or more crimes and serve both penalties at the same time
Consecutive sentence
When offenders are convicted of 2 or more crimes and serve penalties one after the other
Intermittent sentence
Sentence served on weekends or at night while maintaining a job
Fine option program
Instead of paying a fine, offender can earn credits for doing work similar to community service
Principle of totality
Penalties for similar crimes are combined so they’re in proportion for the offence
Ie. Fraudulent checks
Dangerous offender
Someone who commits a serious personal injury offence and has little chance of rehabilitation
Indeterminate sentence
Offender stays in an institution until they show that they are able to return to society and display normal behaviour
Provisions made for victims of a criminal act
- not really anything
- they can seek out restitution, financial help, and victim impact statements
Appeal for summary convictions
Send in a transcript, which court reviews
Appeal for indictable offences
Voice your appeal, asses new evidence, etc. at provincial court of appeal
What can the appeal court do?
Change verdict, change sentence, or order a new trial
Appellant
The appealing party
Respondant
The other party
Correctional services are responsible for
- incarcerating offenders
- providing rehab programs (work experience, substance abuse, etc)
- processing parole applications
- supervising offenders that are on early release
- running probation services
How to decide federal vs provincial jail
- type of crime
- risk to public
- ability to rehabilitate
- risk to escape
- location of family
Provincial facilities
- sentences to less than 2 years
- closed custody, open custody, or community custody
Closed custody
- secured facilities
- dangerous, hard to manage, and flight risk offenders
Open custody
- less secure, ie halfway house
- people that are non-violent and not a flight risk
- allows them to work
Community custody
Work or go to school during the day and come to prison at night
Federal facility
- maximum, medium, and minimum security
Maximum security
- razor wires, fences, bars, armed guards
- dangerous offenders
- people convicted of first or second degree murder must serve at least 2 years here
Medium
- few external barriers, fewer guards, more freedom and contact
Minimum
- no external barriers, unarmed guards, employment, and education programs
Day parole
Curfew when you must return to institution or halfway house
Full parole
Parole review board decides if inmate can be released, and if so places conditions on them
Parole review
- must be reviewed after 1/3 of sentence or 7 years (whichever comes first)…except 1st degree murder
- national parole board makes decision based on risk, social issues, mental status, victim impact statements etc.
Escorted absences
Offender has correctional staff with them
Unescorted absences
Offender doesn’t have to have correctional staff with them
Parole for murder
For first degree murder, you’re ineligible for parole for 25 years
Accelerated review
Shortening the time for parole for non violent crimes
Royal prerogative of mercy
Federal gov pardons you
Free pardon
When a wrongfully convicted person is forgiven
Ordinary pardon
When an offender is forgiven on compassionate grounds
