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CRM > CRM101 > Flashcards

CRM101 Flashcards

1
Q

What are the role of the courts?

A
  • To determine the innocence or guilt of the accused.
  • Balance the rights of the defendant and values of society.
  • Power to shape criminal law (interpret what constitutes a crime)
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2
Q

Who dictates and creates criminal law?

A

Federal government

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3
Q

What is the definition of common law?

A

Law that is created out of judicial decisions (judge-made law)
- Unwritten laws based on legal precedent (outcomes cannot be determined based on existing statutes or written law)

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4
Q

What are the 4 ways common law is created?

A
  1. Parliament has acted outside of their power (judge has authority and discretion to strike down the law)
  2. Law has violated a Charter right (i.e. freedom of speech, fundamental right to life, liberty, security)
  3. Through interpretation of the Criminal Code and other statutes (created to interpret and define anything that needs to be clarified in the legislation)
  4. Through creation of common law defences.
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5
Q

What is the Criminal Court Process?

A
  1. Guided by the Criminal Code, Charter, Common Law and other statues.
  2. Presumption of innocence
  3. Plea negotiations
  4. Burden of proof/reasonable doubt
  5. Trial by judge and jury
  6. Sentencing
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6
Q

What does the Criminal Code outline?

A

Outlines infractions, prosecution, /sanctions/penalties of a crime.

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7
Q

What is the Charter of Rights and Freedoms?

A

Protects the rights of the accused throughout the court process.

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8
Q

What are Criminal Proceeding Rules?

A

Often vary province-to-province.

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9
Q

What is the presumption of innocence?

A

Accused is presumed innocent until proven guilty (marginalized and racialized individuals often plead guilty in fear of being convicted/lack financial resources to move through criminal trial process)
- Calls into question the use of pre-trial detention and remand.

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10
Q

What are plea negotiations?

A

The Crown and defence decide on a penalty together and present it to the judge to avoid a trial.
- Judge must decide on the recommendations and assess whether the defendant was coerced into pleading guilty.

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11
Q

Are most cases resolved via plea negotiations rather than trial? (T or F)

A

True!!!

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12
Q

What is a burden of proof?

A

If a defendant goes to trial, the prosecution must prove beyond a reasonable doubt that the accused committed the crime.

  • The prosecution must convince the jury that there is no other reasonable explanation for the evidence presented.
  • The defence can raise reasonable doubt about the evidence presented and how it may not stack up to a guilty conviction.
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13
Q

What is actus reus/mens rea?

A

Actus Reus: Act or omission

Mens Rea: Criminal Intent

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14
Q

Do most cases that end up going to trial are tried by judges only? (T or F)

A

True!!!!

- For offences that carry 5 years or more of imprisonment, there is an option of electing to be tried by judge and jury.

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15
Q

Who carries out sentencing?

A

Judges carry out sentencing that is based on a # of principles and goals.

  • Criminal Code sets out maximum sentences
  • Mandatory minimums (limited judicial discretion)
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16
Q

What are the pre-trial stages of the criminal court process?

A
  1. Preliminary Inquiries
  2. Stay or Withdrawal of Charges
  3. Judicial Interim Release (Bail)
  4. Plea Agreements
  5. Disclosure of Evidence
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17
Q

What are preliminary inquiries?

A

When the judge reviews the evidence to decides if there is enough evidence to have a trial (case made against accused).
- The Crown must present a case that would hold in court and to satisfy judge that they should proceed to a trial

18
Q

Why would there be a stay or withdrawal of charges?

A
  • Insufficient or inadmissible evidence
  • Use of diversion programs to avoid trial
    (Defendant doesn’t move through criminal trial if charges are stayed or withdrawn)
19
Q

What should we know about judicial interim release (bail)?

A

If charges are not withdrawn and the accused proceeds to trial, a bail hearing process will continue.
- There is a presumption that bail will be granted unless the Crown can show why it should be denied (primary, secondary and tertiary grounds) = remand

20
Q

What is section 11(e) of the Charter?

A

An individual cannot be denied bail without cause.

21
Q

How quickly should a bail hearing occur?

A

A bail hearing should take place 24 hours after the accused is apprehended.

22
Q

What are some issues related to bail?

A
  1. Risk management = certain populations are disproportionately denied bail
  2. Increase use in remand = accused kept in remand until trial
23
Q

Reasons why an individual may be denied bail?

A
  1. Amount of charges
  2. No permanent address
  3. Criminal history/record (moral character of accused)
24
Q

Are men or women denied bail more often?

A

Men - also race plays an indirect role in bail decisions (i.e. police reports/stereotyping)

25
Q

What is definition of reverse onus?

A

There are certain circumstances in the Criminal Code where there is a reverse on us on the accused to present a case on why they should be released on bail.

  • This occurs for charges such as murder, high treason, drug trafficking, terrorism, organized crime.
  • A legal provision that requires the accused to prove/disprove something (i.e. why they should be released on bail)
26
Q

What should we know about plea agreements?

A
  • The accused pleads guilty in return for the prosecution’s agreement to take a particular course of action (i.e. reduced sentence or charge)
27
Q
  • Are most cases that are not stayed or withdrawn are decided through plea negotiations (T or F)
A

True!

- Very few cases make it through the whole trial process

28
Q

Advantages of plea negotiations?

A

Although plea negotiations are controversial there are benefits to this process.

  1. Contributes to the efficiency of the CJS (time-consuming and costly)
  2. Prevent traumatized witnesses from testifying.
  3. If the accused accepts a plea agreement, they may receive a reduced sentence or charge.
29
Q

4 Disadvantages of Plea Negotiations?

A
  1. Individuals who have committed a crime and accept a plea negotiation may avoid being punished (i.e. Karla Homolka)
  2. Detrimental to the accused and their rights
  3. Wrongful convictions (innocent individuals will plead guilty to avoid overcharging, longer sentences and enduring a criminal trial)
  4. Miscarriage of justice
30
Q

What is disclosure of evidence?

A

The Crown must disclose all evidence (including exculpatory evidence to the defence).

31
Q

Does the defence have to disclose evidence to the prosecution? (T or F)

A

No, the defence DOES NOT have to disclose evidence to the prosecution.
- It is not a two-way street.

32
Q

What is exculpatory evidence?

A

Evidence that may prove the defendant’s innocence.

33
Q

What are the trial stages of the criminal court process?

A
  1. If trial by jury: jury selection
  2. Burden of proof/introduction of evidence
  3. Defences
34
Q

What is included in the burden of proof/introduction of evidence?

A
  1. The accused is presumed innocent until proven guilty. The prosecution must show beyond a reasonable doubt that the accused committed the crime.
  2. Actus reus + mens rea
35
Q

What are the 6 purposes of sentencing?

A
  1. Denunciation
  2. Deterrence
  3. Incapacitation
  4. Rehabilitation
  5. Reparation
  6. Promoting a sense of responsibility for the accused
36
Q

What are victim impact statements?

A

Victims have the right to participate in sentencing via victim impact statements.
- How impactful are victim impact statements in the sentencing outcomes?

37
Q

How is the introduction of evidence governed?

A

Canadian Evidence Act

  • Common law principles must be followed
  • All parties are subject to follow the Charter (if violated, certain evidence may be excluded from the trial)
38
Q

What are the post-trial stages of the criminal court process?

A
  1. Pre-sentencing reports
  2. Victim impact statements
  3. Outlining the purpose of sentencing
  4. Sentencing options
  5. Appeal
39
Q

In Canada, the defendant has to testify? (T or F)

A

False. The defendant can choose to testify or not (right not to self-incriminate)

40
Q

Trial: What are defences?

A
  • Rules of evidence in the criminal trial process are required to balance equality, due process rights and values, but are often politically driven.
  • Balance rights and values for accused and society
41
Q

What are some examples of sentencing options?

A
  1. Incarceration
  2. Intermittent, conditional, suspended sentences
  3. Probation, fines, restitution
  4. Absolute/conditional discharge
42
Q

Appeal - what are the 4 levels of court?

A
  1. Provincial and territorial courts (lowest)
  2. Provincial and territorial superior courts
  3. Provincial and territorial courts of appeal
  4. Supreme Court of Canada (highest)

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