Criminal Law in Canada

Question 1

Origins of criminal law in Canada

Answer 1

English common law (decisions made over time vs legislation)

rights and freedoms based off of Magna Carta (1215)

Habeus Corpus originated from old England tradition

Question 2

What is the criminal law of Canada?

Answer 2

set of principles, procedures and rules established by the gov’t to ensure public safety

defines crime, punishment, defences to criminal charge

includes probation and prescribed punishment

Question 3

What is the difference between criminal law and civil law?

Answer 3

Violation of public order, prosecuted by state vs infringement of contract/rights of another citizen (party that feels wronged brings civil suit)

Criminal penalties vs compensation

Question 4

When was the Criminal Code in Canada adopted and consolidated?

Answer 4

adopted in 1892 and consolidated in 1953 when common law crimes were abolished

Question 5

Magna Carta

Answer 5

Signed by King John in England in 1215

interpreted in 1613 legal decision to support

• rights of individuals,
• guarantee basic liberties for all citizens,
• and prohibit the Crown from prosecuting without due cause
• rights can be found in 1982 Charter of Rights and Freedoms

Question 6

The Rule of Law

Answer 6

principle that everybody-governments, individuals, and corporations-must follow the law

takes power away from monarch and transfers them to Parliament eg: 1215 Magna Carta

Governments may take actions that limit activities or rights of citizens, but only in accordance with substantive and procedural requirements prescribed by law

Question 7

Constitutional Law

(Charter of Rights and Freedoms)

Answer 7

1982 Charter of Rights and Freedoms restricts power of the state, and protects rights of individuals (right to freedom, to be secure against unreasonable search and seizure, not to be arbitrarily detained or imprisoned)

Question 8

Habeas Corpus

Answer 8

Old English tradition carried into Canadian Law

put in place to prevent unfair imprisonment allows prisoner to challenge lawfulness of their imprisonment

Question 9

Alternatives to Imprisonment

Answer 9

Judges are required by law to consider other alternatives and punishments (eg conditional discharges, fines, probation)

Section 718(2) Criminal Code - “an offender should not be deprived of liberty” if there are “less restrictive sanctions available,” and that judges are required to explore all “available sanctions other than imprisonment”

Question 10

The Right to Reasonable Bail

Answer 10

“everyone has the right not to be arbitrarily detained or imprisoned.” - Section 7 of Charter of Rights and Freedoms

“any person charged with an offence has the right…not to be denied reasonable bail without just cause.” - Section 11(e) Charter of Rights and Freedoms

Question 11

Constabulary

Answer 11

Origin: England had a regular police force after 11th C (Norman conquest)

Comes Stabuli - officer of stable

Constable - police officer of lower rank

Constabulary: organized body of police

Question 12

Describe the hierarchy of courts

Answer 12

Supreme Court hears the fewest number of cases and has the most power

the “inferior court” or Provinial Trial court hears most cases and has the least power

Question 13

Federal court

Answer 13

contains Trial Division and Appeal Division

does not hear Criminal Code cases

hears cases concerning: copyright law, citizenship, immigration, suits against the federal government, etc

decisions made by Federal Court Trial Division may be appealed to the Appeal Division

Appeal Division may be appealed to Supreme Court of Canada

Question 14

Gladue Decision

Answer 14

1999 decision by Supreme Court of Canada

Section 718.2 Criminal Code Sentencing judges HAVE to consider the unique circumstances of Aboriginal offenders and look for a “restorative approach”

tries to restore things by putting fewer Aboriginals into prison lmao

Question 15

Summary Offences

Answer 15

less serious (theft under $5k)

“misdemeanours”

proceed directly to trial in Provincial court, maximum

sentence is 6 months imprisonment or $5k fine

Question 16

Indictable Offences

Answer 16

more serious (murder, robbery, assult)

“felonies”

ususally a preliminary hearing to see if there’s enough evidence for a court trial

long jail sentences (max. lifetime)

Question 17

Hybrid Offences

Answer 17

Most cases can be either summary or indictable

Crown prosecutor decides whether to proceed by way of summary conviction or indictment

(reasons can be seriousness, first-time offender, little evidence, etc)

Question 18

Mala in se

Answer 18

something that is evil, or bad in itself

most ppl agree that mala in se crimes are wrong even if there isn’t a law prohibiting them

Question 19

Mala prohibita

Answer 19

acts that are illegal because they are prohibited

not a universal thing (e.g. Homosexuality is bad in some places but accepted in others)

Question 20

Probation

Answer 20

a sentence in itself, ordered by sentencing judge at

the time most common sentence

maximum length is three years

Question 21

Parole

Answer 21

if sentenced to imprisonment, you can apply for parole after serving 6 months imprisonment can apply for full parole if you’ve served 1/3 of sentence

Question 22

Statutory Release

Answer 22

Most inmates released automatically after 2/3 of sentence

Can only be denied if Parole Board thinks the inmate is still a threat

Question 23

R v. Sharpe (2001)

Answer 23

Upheld law making it illegal to possess child pornography, saying that freedom of expression not absolute

Also said that individuals have right to use private, created (drawn) works for own personal pleasure