Criminal Law - Unit 3 Flashcards
1
Q
What is the main source of criminal law in Canada?
A
The Criminal Code of Canada
- It describes which acts are considered criminal offenses and what the punishments are for crimes.
2
Q
Define a crime.
A
Any act that is prohibited (considered illegal) by the federal criminal code.
3
Q
What four conditions must exist for an act to be considered a crime according to The Law Reform Commission of Canada?
A
- The actions or behavior of the person must be considered immoral (wrong) by most Canadians.
- The person’s actions must cause harm to society and any individual victims.
- The harm caused by the person’s actions must be serious.
- The person must be punished by the criminal justice system for his or her actions.
4
Q
What is immoral behaviour?
A
- The criminal code reflects what actions the government and often the majority of Canadians, consider to be immoral behaviour.
- The government amends or makes new laws according to what most Canadians want.
- The government attempts to forbid and punish immoral behaviour by making it illegal.
- Canadian citizens have different beliefs on what constitutes immoral behaviour. The government can respond by criminalising, decriminalising, or legalising specific types of behaviour.
5
Q
Define criminalising.
A
To make a behaviour a criminal offence in the criminal code or other criminal statute.
6
Q
Define decriminalising.
A
To make a behaviour that was illegal punishable only by fines.
7
Q
Define legalising.
A
To make an act completely legal by removing it from the criminal code or other criminal statute.
8
Q
Define procedural justice.
A
Fairness in the process that resolved disputes. This procedure must be just for just for the accused. To achieve justice, this procedure must reflect the following principles; fairness, efficiency, clarity, restraint, accountability, participation, protection and impartiality.
9
Q
Define fairness.
A
The process must be impartial toward the accused. Also similar cases should be treated alike and different cases differently. The courts must consider the facts and circumstances of each case.
10
Q
Define efficiency.
A
The process must be timely.
11
Q
Define clarity.
A
The accused must understand the charges and the process.
12
Q
Define restraint.
A
Government officials (police, prosecutors, judges, and corrections officers) must show self-discipline in their treatment of the accused.
13
Q
Define accountability.
A
Government officials must be held responsible for their actions.
14
Q
Define participation.
A
The accused must be allowed to play an active part in the process, and this process must be open to public scrutiny.
15
Q
Define protection.
A
To guard the accused from harm, all procedures of government officials must be regulated.
16
Q
Define impartiality.
A
A principle that judicial decisions should be based on objective criteria and be free from bias or conflicts of interest.
17
Q
Explain the Criminal Code.
A
The criminal code is written and amended (changed) by federal parliament, but the Supreme Court of Canada still has a major influence on criminal law.
When the supreme court makes a decision on an important case, this decision becomes a precedent.
18
Q
What is criminal law?
A
- Canadian criminal law is public because Canada is a democratic system of government and the politicians voted and representing are supposed to reflect the wishes of Canadians in the laws they write and amend.
- Criminal law is also public law because it concerns the actions of the government against an individual.
19
Q
Define prosecute.
A
To initiate and carry out a legal action.
20
Q
Charter of Rights and Freedoms. Define limits, duties, and rights of the individual.
A
Limit: The criminal code restricts what an individual can do.
Duty: The criminal code identifies specific duties that an individual must do. If an individual fails to carry out these specific duties, they are criminally responsible.
Right: The charter states what an individual is free to do.
21
Q
What are the three types of offenses? Define each.
A
Summary Conviction Offence; A minor criminal offence with less severe punishments which is usually tried soon after the charge is laid (summarily) without a preliminary hearing a jury.
Indictable Offence; A serious criminal offence is a severe penalty, proceeding by way of a formal court document called an indictment.
Hybrid Offence; A criminal offence proceeding by way of a summary conviction or an indictable offence, the Crown decides which way to proceed.
22
Q
Describe summary conviction offenses.
A
- Summary conviction offenses are minor criminal offenses
- Unlike indictable offenses, there is a six month limitation period for laying a charge for a summary conviction offence. This means that a person must be charged within six months of the offence, if not, they are free and clear.
- A provincial court judge hears the evidence and gives the verdict for summary conviction offenses.
23
Q
Describe indictable offenses.
A
- Are serious crimes and carry more severe penalties than summary conviction offenses.
- The criminal code sets a max penalty for each offence
- The criminal code sets a minimum penalty for specific offenses
- Unlike summary conviction offenses, there is no statute of limitation for laying a charge of an indictable offence. (A time limit imposed by law within which a specific action must be taken.)
24
Q
Describe hybrid offenses.
A
- Most offenses defined in the criminal code are hybrid offenses. This means they can end up as either indictable or summary conviction charges.
- The crown attorney decides whether to seek a less severe punishment or to proceed by indictment.
- Until the crown makes its decision, hybrid offenses remain indictable.
- Max penalties will vary for hybrid offenses from 2 years imprisonment to 10 years.
25
What are the purposes of criminal law?
- Protect people and property
- Maintain order
- Preserve standards of public decency.
26
Define quasi-criminal laws.
Laws covering less serious offenses at the provincial or municipal level; most often punishable by fine.
27
When is the crown involved in a case?
When a crime is committed against all of society, therefore, the crown acts on behalf of society to prosecute the accused.
28
What is the criminal equation (simplest terms)?
Crime = Actus Reus + Mens Rea
29
Describe actus reus.
- A Latin term meaning ‘a wrongful deed’
- It is the wrongful act or an omission of an act
- The act must be a voluntary, conscious choice of an operating mind.
- Every criminal code offence includes actus reus and describes it in the section.
30
Describe mens rea. What are the categories of mens rea?
- A Latin term meaning ‘Guilty mind’
- It is the blameworthy state of mind during the commission of the wrongful act.
- The criminal code does not always identify the specific form of mens rea for each offence.
- Mens rea includes intent, knowledge, recklessness and/or wilful blindness.
31
Define and describe intent. What are the two types of intent?
- The desire to commit a wrongful act
- Offenses are either general intent offenses or specific intent offenses
- General intent offenses require the Crown to prove that the accused had the desire to commit a further wrongful act. (For example; break and enter and murder.)
- Specific intent; Acted with intent to receive a specific goal. They wanted something to follow. Cannot be inferred from the commission of the act specific proof is required to demonstrate that this element is satisfied. If conspiring occurs each shall be convicted and sentenced.
32
Define knowledge. Give one example.
- The accused may be required to have knowledge of certain facts or an appreciation of understanding of the consequences of an act or outcome.
- For example using a credit card knowing it has been cancelled.
33
Define recklessness. Give one example.
- Includes taking a risk where the result of the action is foreseeable or the careless disregard for the possible results of an action.
- Criminal negligence and dangerous operation of a motor vehicle.
34
Define wilful blindness.
- Occurs when the accused recognises the need for some inquiry but declines because he or she does not wish to know the truth.
35
Define absolute liability offenses.
- It requires that the prosecution prove only that the unlawful act or omission occurred.
36
What are examples of a "criminal state of being"?
Ex. of this crime would include;
- Being in possession of stolen property
- Being found in a gaming or betting house.
37
Define due diligence.
- Reasonable steps taken by a person in order to satisfy a legal requirement, especially in buying or selling something.
38
Describe proper crime scene investigation procedures.
- Police have the right to Cordon off the crime scene to make sure no evidence is lost or tampered with
- Police may refuse entry to a crime scene
> HOWEVER, if the incident involves a death, the coroner (medical professional that deal with the body) has jurisdiction over the area.
- The area will be photographed and searched for items such as hair or fiber samples, blood, forced entry, physical struggle, fingerprints, footprints, or weapons.
> This is called Forensic evidence.
- Police will also question witnesses about their knowledge of the crime of the persons involved.
39
Describe finger prints. Define dactyloscopy.
- Forensic scientists analyse the information collected, fingerprints are compared with those on file at the RCMP central repository in Ottawa.
- The patterns of ridges on our finger pads are unique: no two individuals-even identical twins-have fingerprints that are exactly the same.
- Injuries such as burns or scrapes will not change the ridge structure: when new skin grows in, the same pattern will come back.
- Dactyloscopy; the practice of using fingerprints to identify someone.
40
What are the pitfalls of using finger print identification.
- Mistakes can be made in fingerprint identification
- Usually only a portion of a print is available and can be distorted and hard to read, especially in a messy crime scene situation.
- Specialists must be able to properly dust and lift fingerprints at a crime scene to be able to classify and match them to those in the database.
41
What are the three types of fingerprint patterns? Describe each.
All fingerprints can be identified as one of three types: Arches, Loops, and Whorls.
- Arches: Forming ridges that run from one side of the print to the other and curve up the middle.
- Loops: showing stronger curves than arches with ends that start on one side of the finger, loop around and end up in the same place.
- Whorls: Forming complete ovals often in a spiral pattern around a central point.
42
What are the strict procedures regarding evidence?
- No evidence is left unattended
- The case officer must secure evidence in the police property locker
- Transferring evidence is the responsibility of the case officer
- No evidence can be removed from the property locker without appropriate authority and signature. This is to maintain the chain of custody of the evidence.
43
Describe blood at a crime scene.
- Blood samples are important in impaired driving cases or crimes committed when under the influence. Percentage of alcohol or substance levels can be important in cases where mens rea is an issue.
Blood spatter analysis
- Study of the size and shapes of the drops on the floor can determine from the height at which they fell.
- Shape of drop can indicate movement
- Blood spatter on the wall can determine force and direction of the blow.
44
Describe DNA at a crime scene.
- All human beings have a distinctive genetic code within their chromosomes which are composed of DNA
- Deoxyribonucleic acid (DNA): Lab analysis of blood stains, semen, saliva, vaginal secretion, skin, and hair follicles can lead to the identification of an individual through his or her distinctive genetic code.
45
Describe serial killers.
- Serial Killers are defined by the amount of people they have murdered. This spans from 2-10 victims. There is also a cooling down period between the murders.
- The motives serial killers tend to have are a span of thrill, adrenaline, revenge, power-dynamics, sexual desires, no motives because they just wanted to kill.
46
What are the aspects of profiling a serial killer?
1. Victimology
2. Modus operandi
3. Signature
4. Geographical profiling
5. Time + frequency of murders
6. Psychology + motive
7. Behavioural traits + patterns
8. Forensic evidence
9. History + personal background
10. Risk level to public safety
47
Describe victimology.
The study of the victims involved in the serial killings, including their age, gender, occupation, lifestyle, and other personal traits.
48
Describe modus operandi.
The method or technique the killer uses to commit the crime
> Ex. strangulation, poisoning, shooting, stabbing, manipulation, etc.
- Often referred to as MO
49
Describe signature.
The unique and personal aspects of the crime that satisfy the killer’s psychological needs or desires, going beyond what is necessary to commit the murder.
> Ex. disassembling body parts, leaving a symbol, or leaving a note are examples of signatures.
50
Describe geographical profiling.
Analysing the locations of the killings to identify the killer’s potential home base or “comfort zone”
> Ex. such as near his home, work, or particular neighbourhood, or even signs of the killer travelling in a direction.
51
Describe time and frequency of the murders.
The time intervals between murders, as well as the frequency and regularity for the killings.
> Ex. maybe there is a cooling-off period (time between murders) or if there are patterns in the timing of killings like certain months, days, or even time of day.
52
Describe psychology and motive.
Understanding the underlying psychological state and motivations of the killer.
> Ex. personality traits like psychopathic tendency, narcissism, anti-social behaviour.
> Or Motivational triggers like sexual gratification, thrill seeking, anger or revenge, or attention-seeking or “calling card”.
> Also looking for any sign of past trauma or life events which could have influenced their behaviour such as child abuse, abandonment, or significant life stressors.
53
Describe behavioural traits and patterns.
Analysing how the killer behaves during the crime and in the aftermath.
> Ex. control or disorganisation, escalation or regression, interpersonal relationships, or possible ties to victims.
54
Describe forensic evidence.
Analysing physical and forensic evidence found at crime scene
> Ex. DNA or other biological evidence, forensic evidence at crime scenes, or trophies or souvenirs.
55
Describe history and personal background.
Investigating the killer’s life history to understand their psychological profile
> Ex. childhood, adult life, and criminal history
56
Describe risk level to public safety.
Determining the level of risk the serial killer poses to the public and any potential warning signs.
> Ex. level of threat, communication with law enforcement or media, and prevention tactics.
57
What rights does an individual have upon search, detention, and arrest?
- The police can only search a person if;
> the person is under arrest
> the police have reason to believe the person has a concealed weapon.
The police can search an automobile if;
> they believe it is being used in the commission of an indictable offence.
> they believe it has illegal drugs or concealed weapons.
The police can search a private dwelling if;
> they have a search warrant
The police can search a building other than a private dwelling if;
> they have a search warrant
> they believe the building has illegal drugs and it is impractical to get a warrant in time.
> they believe it concealed weapons.
58
Describe detention. Rights of individuals being detained?
A person is detained when that person is stopped by a police officer, being deprived of liberty, and reasonably believes that the choice to do otherwise does not exist.
Rights:
- A person has the right not to be arbitrarily detained
- To be informed of the reason for detention.
- To be informed of the right to retain and instruct counsel. (if it is a criminal matter)
- To remain silent.
59
Describe arrest. Rights of individuals under arrest?
A person is brought into legal custody.
Rights:
- A person has the right not to be arbitrarily detained
- To be informed of the reason for detention.
- To be informed of the right to retain and instruct counsel. (is it is a criminal matter)
- To remain silent.
- Habeas corpus rights
60
What are the four elements of a legal arrest?
1. The police must identify themselves as officers
2. The police must provide the reason for arrest
3. The police must read the suspect their rights
4. The police must touch the suspect to signify that they are in legal custody and are being arrested/detained
- These rights must be informed in a way where the person understands.
- The police must provide a telephone and privacy when speaking to a lawyer.
- Police must stop questioning a suspect until they speak to a lawyer once a suspect decides to take advantage of counsel.
61
What are police powers upon arrest?
The police have the power to;
- Search suspect and property
- Take suspect into police station
- Conduct a more thorough search and the police station
- Seize possession found during search
- To fingerprint and photograph the accused if the charge is hybrid or indictable
62
What can the police not force a suspect to do?
The suspect/accused doesn’t have to;
- Participate in a line up.
- Participate in a polygraph test (lie-detector test)
- Provide urine, blood, or DNA unless the police have a warrant.
- Provide a breath sample unless arrested for impaired driving.
63
Describe court procedure.
1. Prosecution and defence counsel present opening statements.
2. Prosecution (the crown) conducts direct examination of their own witnesses, one by one.
3. The defence counsel (defendants lawyer) conducts cross examination on each of the crown’s witnesses.
4. When the crown is done with all of their witnesses, the defence examine their own witnesses.
5. Deliberation period.
6. Verdict.
64
Describe the purpose of witnesses.
We bring witnesses to interpret evidence, and tell our stories for us. We already have the evidence, we already have the story
- The witnesses interpret the evidence, and tell the story from their view within the event.
- Their credibility gives your side credibility. Witnesses are taken very seriously because they have a perspective that may have not already been perceived in court within the other evidence.
65
What are the three types of witnesses? Describe each.
Lay Witness (AKA eyewitnesses)
- Tell us what happened, where, and when.
- Primary qualification: were personally involved in/witnessed the event first-hand.
Expert Witness
- Tell us how and why this happened.
- Explains concepts they are specialised in, such as a murder and the splash patterns.
- Primary qualification: highly educated and/or experienced in what they’re talking about.
Character Witness
- Explains who the defendant is personally and knows the defendant on a deeper level.
- Usually used in sentencing hearings, not criminal trials.
- Primary qualification: someone who knows and understands the defendant well and has good credibility.
66
Describe cross examination.
The point of examination is to prove your witness's testimony is credible and theirs is uncredible.
- Disprove the testimony
- Discredit testimony (memory, unreliable narrator)
- De-legitimise (object to testimony the witness is unqualified to tell)
> Hearsay (Things you can’t know/are unqualified to know)
67
Describe sentencing.
- After the jury/judge considers evidence, there is a declaration of guilt or innocence.
- Innocent; the defendant leaves cleared of all guilt.
- Guilty; triggers a date for a sentencing hearing. Both sides can argue how guilty the defendant is before receiving a sentence.
68
What are the three kinds of sentencing? Describe each.
Prison Sentence (and/or fine)
Probation/Suspended Sentence.
- The defendant is guilty, but doesn’t serve prison if they stay out of trouble and follow the court’s strict instructions.
- If parole/court order is broken then the sentence is served in prison.
Community Service/Non-Prison Variants.
- For common petty crimes of first-time offenders
- Uncommon: Requires judge’s credibility and belief in offender’s ability to rehabilitate and not reoffend. (Social Justice).
69
What is restorative justice based on?
- Christian forgiveness, pity, redemption.
- Criminal justice reform: Prison overpopulation, drug abuse reoffending rates and hardened criminals.
- Social Justice: Systematic inequalities breed systematically poor representation (Liberty, equality, brotherhood.)
- Indigenous Law: healing circles, reconciliation.
70
Describe juries. What are requirements and exemptions for/from jury duty?
- Empaneling; Process of both sides choosing jury members
- Peremptory challenge; Both sides can eliminate potential jurors without cause
- Challenge for cause; One side objects to a potential juror for a just cause (minimum requirements bias, etc)
- Sequester; Isolate the jury until a verdict is reached.
Jury Requirements;
- Adult, Canadian Citizenship
- Has resided in the province for awhile
- Speaks English/French
- Mentally capable
- Is not exempt from service (Occupation/beliefs)
Jury Exemptions;
- Conflict of interest (personally involved)
- Law enforcements, legal experts
- Potential experts
- Mental disability
- Criminal record
- Some occupations are not exempt but rarely picked for duty once called on (teachers, and other leaders)
71
Rules and responsibilities for jurors.
Do:
- Take notes, pay attention
- Follow judge’s instructions in deliberations (discuss case and taking vote)
Do Not:
- Discuss case with anyone outside of the jury
- Follow media on the case
- Disclose anything that remains private even after the case is over
72
What is the adversarial system?
The system of law in which 2 or more opposing sides present their case in court.
73
Describe judges.
Judges;
- Must act impartially, that is, without bias
- Must now have a preconceived opinion about the case before they hear the evidence.
- Have full control of the courtroom.
- Can exclude the public and even the accused if it is necessary to administer justice and maintain order.
- The most important role judges play in criminal court proceedings is deciding what evidence is admissible, since these decisions can greatly influence the outcome of the trial.
74
Describe criminal laws outside of the criminal code.
-Controlled Drugs and Substances Act
> A federal statute unique to just drug laws;
> Possession
> Drug trafficking
> Drug production
> Drug dealing (sales)
- Ontario Traffic Act
> A provincial statute unique to just car offences and road safety.
> Stunt driving
> License suspensions
> Traffic/Parking tickets
75
What is the purpose of sentencing?
- Denounce the offenders' crimes
- Deter other from offending
- Separate anti-social people from society
- Assist in rehabilitation of offenders
- Reparations to victim/ community
76
Describe the alternatives to prison.
- Diversion program: A sentence that keeps the offender out of prison (community service, etc)
- Probation: Not freedom, but not prison (conditional discharge)
- Absolute Discharge: Be convicted and release without conditions
- Compensation: Reparations to the victim, society, or court.
77
Describe appeals.
- Both the crown and defence have the right to appeal.
> Conviction
> A verdict
> A sentence
> A ruling of fitness to stand trial
- Can’t ask for a new trial. Must be a mistake of law, not retrial.
- Not a new trial: a higher court will review the evidence and transcripts, and 3 judges will vote.
78
Describe prison and parole.
- Prisoners have a right to parole hearings but not parole
- Incentivise good behaviour, sincere rehabilitation, and deincentivises reoffending in prison.
- Many kinds of release conditions for different crimes and conditions.
Faint Hope Clause: If sentenced to over 15 yrs, can apply for parole after the 15yrs.
79
Describe alibi and defense.
Defence; the accused’s response to criminal charges.
Alibi; A defence that the accused was not at the scene of the crime when it took place.
- An alibi is often presented by the accused upon arrest in a statement made to the police. A full alibi defense includes 3 parts:
> A statement indicating that the accused was not present at the location of the crime when it was committed.
> An explanation of the accused’s whereabouts at that time
> The names of any witnesses to the alibi.
80
Describe automatism. What are the two types of automatism?
Automatism; involuntary action by someone who is in a state of impaired consciousness, without control over his or her actions; insane automatism is cause by a disease of the mind.
Non-insane Automatism Defence;
- Sometimes called “temporary insanity”.
- The state recognised that this state may be the result of the following: a physical blow, physical ailments such as a stroke, hypoglycemia (low blood sugar), sleepwalking, intoxication, or severe psychological trauma.
Insane Automatism Defence;
- A mental disorder, or a disease of the mind, is defined in section 16 of the Criminal Code.
- It states that an individual is not criminally responsible (NCR) for a criminal offence providing the following:
> At the time that the act was committed, he or she was suffering from a mental disorder.
> The mental disorder made the individual incapable of appreciating the nature of the act or knowing that the act was wrong.
81
Describe intoxication.
- The defendant must not have the required mens rea to use this defense
- Cannot be found for aggravated assault because an intoxicated person cannot form specific intent
- All that needs to be proved is that the intoxicated person did strike someone (the actus reus)
82
Describe necessity.
- Can be used when a crime is committed due to immediate and urgent circumstances
- Claim they did not act voluntarily
> They were forced to act because of certain dangers
- In other words they had no other choice.
83
Describe duress.
- Duress; threat or coercion to force someone to do something against his or her will.
- An accused commits a crime in response to some sort of external pressure.
- Can be used if someone is forced to commit a crime upon fear of immediate death or bodily harm
- Is difficult to establish.
84
Describe ignorance of law v. mistake of fact.
- Pleading “ignorance of the law” is not an accepted defence.
- Mistake of Fact is a valid defence if it prevents the accused from having the necessary mens rea required by law for the crime that was committed.
- There is a requirement in such a defence that the mistake was genuine and not the result of the accused neglecting to find out the facts.
85
Describe R v. Stone.
- Automatism and Provocation.
- Provocation; the act of inciting to commit a crime in the heat of passion.
- Bert Stone stabbed his wife 47 times, but said he had no memory of the event.
- He made a defence of automatism and provocation.
- They were in an argument, he blacked out, stabbed her and stuffed the body in his toolbox.
- He then fled to Mexico where he then remembered what happened, flew back and confessed to the police.
- Jury convicted him with manslaughter.
- The judge would not charge the jury regarding non-insane automatism.
