Criminal law and criminal justice Flashcards
Substantive criminal law
Declares which actions will be punished by the state
Actus reus
Men’s rea
Harm
Laws that define criminal behaviour
Procedural criminal law
Reveals how the rights and duties of people can be enforced = due process
Mostly found in s.8 “principles of fundamental justice”
No one can be deprived of life, liberty
No static - constantly changing
Supreme Court has Ike’s in areas of disclosure, right to silence, right to a fair trial, right not to make incriminating statements
Legal guilt over factual guilt
Sexual assault rape conditions
- Had to be female victim
- accused was make
- Not married to each other
- Sexual intercourse occurred
- No consent of the woman
Sexual assault levels
Level 1: least injury (98% cases)
Hybrid offence
Level 2: use of weapon or harm, or threat
Level 3: wounding, ma mining, disfiguring, or endangering
Bill c-127
Victims sexual history
Catch the victim being insecure
Taint them out to be the bad person
1994 “extreme drunkenness” was implemented (rape shield law)
Bill c-46 full disclosure of records
Stages of assault
1st stage: accused must convince the trial judge that the documents are relevant
2nd stage: judge must consider whether it is necessary in the interests of justice for the defence to view them
Canadian law derived from?
The British then turned into common law
Common reasons for ordering the complainants records
- Prejudice to dignity and the right to privacy
- Defendants right to full answer and defence
- Reasonable expectation of privacy
- Pro active value of the record
Sources of criminal law
Stare decisis: the process of following previous decisions when forming new ones (law adapts to changes)
Judges have some discretion (look at precedent)
Written sources: the constitution
Includes the charter (1982)
Supreme law
Written sources: statute law
Was that prohibit or mandate certain acts
Criminal code
Written sources: case law
When the courts need to interpret existing statues
Written sources: administrative
Specific areas (environment)
The rule of law
Every person and group is subjected to the same laws
Sense of orderliness
What type of law is concerned about whether the accused has actually committed an offence and formed the intent to do so?
Substantive law
What are some of the main principles of criminal justice as indicated in the charter?
Life Liberty and security
The charter 1982
Fair trial
Protection of due process rights
Freedom from cruel and unusual punishment
Principles of fundamental justice are broader than the rights defined in the charter
Section 7
Individual rights
Section 8
Right to a reasonable expectation of privacy
Section 9
People cannot be arbitrarily detained
S.10
Rights of the accused when detained
Section 11
Rights people have when charged with an offence
Section 12
Fair punishment
Section 13
Freedom from self incrimination
Section 14
The right to an interpreter
Section 15
Equality rights
Section 24
Remedies for violation of the above rights
CJS definition of crime
Crime as actions that are Harmful, prohibited, can be prosecuted in a formal environment, and for which a punishment can be handed out
Corpus delecti
The body of crime
Legality Men's rea Actus reus Concurrence of men's rea and actus rea Harm Causation Punishment
This is followed when charging and convicting people
Excuse defences
Excusing a person from being punished as if they weren’t truly responsible
Age Mental disorder automatism Mistake of fact Mistake of law
Unable to have a guilty mind, or establish intent to do a crime
Justification defences
Having a reasonable amount of force against the person trying to hurt you
Duress Necessity Self-defence Provocation Entrapment
Summary offences
Less serious
Indictable offences
More serious
Excuse defences: age
0-12 don’t know what they are doing
12-18 youth crime , don’t keep records
18 older = adult
Excuse defences: mental disorder
Cannot form intent because they were not rational at the time- prove this by evidence with long standing mental illness
Excuse defences: automatism
The performance of actions without conscious thought or intention
Ex: sleep walking
Excuse defences: mistake of fact
Didn’t know you were actually carrying out a crime
Excuse defences: mistake of law
Referring to one Ken ore errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by the court
Justification defences: duress
Threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment
Justification defences: necessity
Same thing as duress- difference is that it doesn’t necessarily have to be another person posing a harm to another
Ex: Robert latimer
Justification defences: self defence
Defending yourself, your property, or neighbors property
Justification defences: provocation
Being provoked
Justification defences: entrapment
State cannot create condition where crime can occur.
The state of being caught in or as In a trap
Set you up
