Criminal Class 1 Introduction Flashcards
A Law must consist of three things. What are the three things?
1.Prohibition – this means, you cannot do this. It will characterize some form of prohibited conduct
2. Must impose a penalty - if that prohibited conduct is conducted
3. Must be directed towards a public purpose
Scope of Criminal Law/Pillars (4 Major Things)
Presumption of Innocence
Proof beyond a reasonable doubt
Actus Reus
Mens Rea
What does s. 91 and s.92 give parliament?
Section 91 gives the federal government power to make laws
Section 92 gives the provincial government power to make laws.
Some of the basic purposes of Criminal Law
Protect all of society from seriously harmful and dangerous conduct
Maintain a just, peaceful and safe society through prohibiting harmful conduct backed with sanctions
Deterrence through the imposition of sanctions
Not guilty does not infer innocence
It is better to let nine guilty people go than to convict one innocent person
Explain Summary Offences and provide an example
Lowest level of offences
Max Penalty: $5000 fine, 6 months prison, or both.
An Agent can appear for individual - accused doesn’t have to appear in court
Tried in Ontario Court of Justice (OCJ)
Examples: causing a disturbance, transportation fraud etc.
In criminal code
Explain Indictable Offences and provide an example
More serious offences
Max Penalty: Life imprisonment
Accused must appear at every proceeding unless lawyer is representing them
Judge or jury
In criminal code
Example: Murder, Rape.
Explain Hybrid (Dual) Offences and provide one example
- Majority of offences fall into this category
- Crown can elect by which to proceed (Summary or Indictable).
- Tactical measures are weighed to determine best route because there are :
1. different mandatory minimum sentences
2. procedural differences, ie: mandatory pre-trial Hearing for indictment – can cross- examine complainant - Advantage to summary (no cross examination) in sexual assault complaints
NOT in criminal code as crown choses either summary or indictable.
Examples are assault, sexual assault, threats, etc
Tell me about the Adversary System. Who are the parties? What is the adversary system seeking? Is the adversary system always adversary?
There are two parties: crown and defence present their case to judge (impartial decision maker)
An adversarial system seeks to search for the truth * NO ONE SHOULD BE TRYING TO WIN*
- Yet adversary system is not always adversarial – both parties often cooperate with Plea bargaining, resolution discussion (crown and defence talking), guilty plea
Role of the Crown (Prosecution)
- Administers of justice
- Objective is not to “win” – but to present facts and evidence as it relates to the case
- Can advocate – asking judge to convict on the basis of evidence being Beyond reasonable doubt
- Conversely, where evidence has not met the BRD standard conviction should not be requested
- Ensures fairness in trials
- Charge screening process: for Crown to pursue a case, there must be
a) reasonable prospect of conviction and
b) it is in the public’s interest to do so
Role of the Defence
- Ensuring the accused’s rights are being protected (i.e., that police conducted investigations properly)
- Ensuring that the accused has a fair trial, and that the prosecution proves BRD
- Has to protect the client as far as possible from being convicted until the Crown has proven BRD
- Must be courageous – defending the client regardless of how despicable the allegations may be
- Cannot knowingly assist or encourage dishonesty, fraud, crime or illegal conduct
- Cannot advise a client on how to violate the law or avoid punishment
- Cannot bring forth evidence that would mislead the court
- Cannot bring forth evidence that would directly contradict what accused told counsel
- If accused pleads guilty, Counsel can only challenge sufficiency of evidence, form of indictment, jurisdiction of court; cannot accused anyone else of doing it
Role of the Judge
- The judge is not a party
o They provide, independent, impartial and objective assement of the facts and they determine how the law is gonna apply to the facts,
o they apply the relevant facts and laws and circumstances before the case and the circumstances of the case and render justice in the framework of the law - Make sure everyone follows procedure
o Procedure is important to make sure everyone has a fair trial - Judges are responsible for interpreting the law
o Judges do not create laws - Judges asses how evidence is presented, they control how hearings and trials unfold
- Gate keepers of the evidence that s deemed admissible
- Impartial decision makers in the pursuit of justice
- Appears dispassionate – “controls” the courtroom but does not take over it
- Interpret law and assess it in an unbiased manner
- Not to judge the accused, but to judge the merits of the evidence and whether the law is applicable
- If an accused is found guilty, judges job is to sentence that person in a just and fair manor
R. v. Stinchcombe. Case invoked a lawyer charged with fraud and this case talked about what can and cannot be disclosed. What was the point of the case? What are the three exceptions?
Issue: Does the crown have to disclose everything?
Holding: Yes.
Ratio: the crown has the obligation to disclose the fruits of a police infestation that they possess. It is the publics property to ensure that justice is done.
Crown can withhold disclosure that is:
1) Completely irrelevant
2) Privileged information such as the identity of an informant or work product can be withheld
3) Disclosure can be delayed if it would impede an ongoing investigation - timing is left to the discretion of the crown
3 Limitations the crown does not need to disclose evidence.
- Crown can withhold information that is clearly irrelevant
- Crown can withhold information that is privileged
- Crown can delay disclosure – it is at the Crown’s discretion
3 parts that make what a crime is
1) prohibition of an act
2) must impose a penalty
3) must be directed towards a public purpose
Four conditions that need to exist for an act to be considered a crime under the CC (Very generally)
- Act of the person must be considered wrong by most Canadians (by society)
- Person’s actions must cause harm to society
- The harm caused by that person’s actions must be serious
- It would be appropriate for that person to be punished by the criminal justice system
