Criminal Law in Canada Flashcards
Origins of Criminal Law, Sentencing, Court Hierarchy, sentencing, offences
Origins of criminal law in Canada
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
What is the criminal law of Canada?
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
What is the difference between criminal law and civil law?
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
When was the Criminal Code in Canada adopted and consolidated?
adopted in 1892 and consolidated in 1953 when common law crimes were abolished
Magna Carta
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
The Rule of Law
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
Constitutional Law
(Charter of Rights and Freedoms)
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)
Habeas Corpus
Old English tradition carried into Canadian Law
put in place to prevent unfair imprisonment allows prisoner to challenge lawfulness of their imprisonment
Alternatives to Imprisonment
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”
The Right to Reasonable Bail
“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
Constabulary
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
Describe the hierarchy of courts
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
Federal court
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
Gladue Decision
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
Summary Offences
less serious (theft under $5k)
“misdemeanours”
proceed directly to trial in Provincial court, maximum
sentence is 6 months imprisonment or $5k fine
Indictable Offences
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)
Hybrid Offences
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)
Mala in se
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
Mala prohibita
acts that are illegal because they are prohibited
not a universal thing (e.g. Homosexuality is bad in some places but accepted in others)
Probation
a sentence in itself, ordered by sentencing judge at
the time most common sentence
maximum length is three years
Parole
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
Statutory Release
Most inmates released automatically after 2/3 of sentence
Can only be denied if Parole Board thinks the inmate is still a threat
R v. Sharpe (2001)
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
