Essay Flashcards
Automatism
Involuntary, unconscious behavior when the mind does not go with what is being done. A state in which a person is not aware of what he or she is doing and may commit a crime unknowingly.
ex) carbon monoxide poisoning, stroke, pneumonia, hypoglycemia, sleepwalking.
The defenses the supreme court have rejected: epileptic seizures, any psychological effect of a relationship.
In our legal system a criminal act must be voluntary and in general voluntariness equals consciousness, therefore, unconscious acts cannot form the mens rea of a criminal offense.
mental disorder
One cannot understand the nature of his or her acts and is incapable of forming criminal intent.
Society does not hold a person responsible for criminal acts while done in a state of mental disorder. Courts rely on medical experts to determine legal questions of mental disorders.
Before a defendant can stand trial, it must be determined if he or she is ‘fit to stand trial’
If an accused is fit to stand trial, the defense can argue that the accused is sane to stand trial but was insane when the offense was committed. Sec 615 of the criminal code covers fitness to stand trial procedures. If not fit to stand trial, the accused is placed in an institution until either released at the discretion of the lieutenant governor or or is deemed fit to stand trial. A person is presumed to be sane until the contrary is proven. If proven at the time of the offense that the accused suffered from mental disorder, the accused must be acquitted. When a person is acquitted of an indictable offense by reason of mental disorder the court must order the accused to be placed into detention in a mental institution. Sec 16 of the criminal code states that if a person ‘incapable of appreciating the nature and quality of what they are doing’ this signifies a mental disorder. Psychopathy and sociopathy are also legal defenses. A psychopath is not fully aware of the nature and quality of their acts but can foresee and understand their consequences. A sociopath is incapable of feeling guilt for their actions
intoxication
similar to automatism and mental disorder because they are concerned with the accused’s state of mind. It is possible for an individual to be so intoxicated that they have no idea what their body is doing yet physically capable of harming someone. Thus, the voluntary nature of the accused’s actions come into question.
The major difference between intoxication automatism and mental disorder is with regard to moral blameworthiness. In most cases intoxication occurs at the hands of the accused, whereas mental disorder and automatism, the element of self control is usually nonexistent. In 1977 the supreme court drew a distinction between specific intent and general intent over crime.
A person acquitted of homicide because he or she is intoxicated may binstead be convicted of manslaughter - the killing of another person without intent to cause death but with general intent to do the unlawful act and cause the victims death. Therefore, the voluntary consumption of drugs or alcohol that induces the state of intoxication provides the reckless conduct sufficient to constitute mens rea for only general intent offenses.
mistake of law
Sec 19 of the criminal code states that mistakes of law are not an excuse for committing a criminal act.
There are exceptions such as the ‘Doctrine of the Colour of Right’ - a defense against the charges of theft or damage when the accused has a reasonable and honest belief that he or she has a right to the property in question. This exception occurs because the purpose of criminal law is to punish moral blameworthy conduct.
mistake of fact
defense based on a lack of mens rea. The knowledge of both the consequences of one’s actions and the surrounding circumstances that makes one’s action a crime is not present. ex) person wrote a check and realized they didn’t have enough money to cover it. Acting under a mistaken belief.
self defence
type of defense that exists out of the recognition that while there may have been a guilty act and guilty mind present in a person’s conduct, thereby technically making the conduct criminal, there may have also been an overriding purpose served by the conduct that would excuse it or justify it.
This is a justification to commit a criminal act in order to preserve one’s own life or safety. Sec 34 of the criminal code states that to rely on this defense: 1. One must be assaulted without having provoked the assault, 2. The force used to repel the assault must not be intended to cause death or serious harm and not be more than necessary to defend oneself.
If an accused killed or seriously injured their attacker, two additional conditions apply. 1. The defender must have acted under reasonable fear of death or serious injury, 2. The defender must have believed on reasonable grounds that he or she could not otherwise be saved from death or serious injury. It is not necessary for you to be physically assaulted before taking self defense measures. Under these circumstances a self defense claim would have to show that he or she did not use more force than was necessary to defend themselves.
When examining if excessive force was used, the courts do not use 20/20 hindsight. They assess the proportionality between the nature and intensity of the original attack and the repelling force that was used. This does not mean the accused is free to act unreasonably in repelling an attack. Individual cases take into account the physical stature of the assailant and defender, types of weapons involved, severity and nature of the original attack
compulsion/ duress
a threat that makes people commit a crime they would not have otherwise done.
It is similar to self defense because it involves excusing otherwise criminal conduct on the basis of an overriding social good.
Different because the victim of the excused conduct of duress may be often innocent by standards while in self defense cases the victims have acted unlawfully.
Sec 17 of the criminal code states that the defense of compulsion does not apply for the justification of murder, sexual assault, or abduction.
The threat involved must be immediate and by a person present at the time of the offense. Like self defense, compulsion requires probing the mind of the accused and the accused’s belief must be based on reasonable grounds.
natural law
the theory that law has some higher or divine origin.
Natural law is a set of ideals enduring and inflexible rules of conduct. These sets of rules or laws are universal and absolute and were not initiated by humans.
all human activity was manipulated by divine will (God). God directed the formation of all laws and all human decisions were judged by the gods and if they went against the will of the gods they were met with dire consequences.
positive law
has human authority as its origin.
Derived from the belief that law is simply what the political authority or lawmaker commands.
Law and justice are not two different entities as natural law claims, therefore the condition of human law does not have to conform to a certain standard of morality and justice
The only human morality is the obedience to the law
Positive law theorists believe that the role of the government is to ‘provide the greatest possible advancement of human happiness’
Morality is measured in accordance with one’s obedience to the law
Positive law provides a legal norm that is applied equally and impartially to all individuals
Ones individual morality should not be a factor when considering if a law is just or unjust
The purpose of law is not to seek justice but rather maintain social order and promote the social good
plato
Plato believed that all laws should reflect universal absolute and eternal truths and virtues. Plato was an idealist that believed all humans can never fully achieve these truths but that their laws nevertheless should attempt to do so.
laws needed to reflect a universal good.
Plato believed that it is worse to commit an injustice than to suffer one and be punished because an injustice destroys one’s soul.
aristotle
the founder of contemporary thinking about natural law
Aristotle believed, unlike plato, that justice is within the grasp of humans. Since humans have a brain and a capacity to reason, they recognize their own nature and create laws that are suitable for them.
When humans are guided by proper observation (metaphysics), human reasoning can create a perfect standard of law. This process of human analysis is also known as rationalism or realism.
cicero (natural law)
During the roman era the roman empire used law to consolidate their authority and expand their empire
Cicero believed in the notion of universal and unchanging natural law
Cicero believed human laws should be disobeyed in the minds of ‘wise and intelligent men’ if they came into conflict with those of nature
He was the first natural law theorist to propose civil disobedience to force lawmakers to reform laws that were in conflict with the laws of nature
Nature meant activities that were in the common good and had a general degree of application to all citizens
aquinas (natural law)
He was a dominican monk
He believed laws were created by the natural world and were known to humans through; 1. The process of reasoning 2. By divine revelation through christian prophets
He believed that rights were not created by humans laws
He was a major influence in the development of modern rights theory and law
jeremy bentham
An authoritative body exists which hands down laws
The people obey these laws
Law is handed down in the form of statutes
Law is enforced through the mechanism of sanctions and penalties
Law is formulated to provide the most gratification to the greatest number of people
Law is handed down by the courts in the form of judgements and precedence
john austin (positive law)
Law must provide an objective standard for human conduct
Law is functional in society
Individual morality has no place in making law
Law is not to be judged by its quality but rather by the place it occupies in controlling and regulating society
The social good is to be advanced through law
