Exam #2

Question 1

Life Cycle of a law

Answer 1

Introduction

Debate and Discussion

Adoption

Codification

Amendment

Repeal

Question 2

Statute Regulations

Answer 2

Many statutes are accompanied by a type of subordinate legislation known as regulations, particularly where the subject matter being covered is of a technical nature. Unlike statutes, regulations are not passed by Parliament or provincial legislatures. They are prepared and published by administrative officials (department or ministry staff) under the authority of the relevant statute to deal with the technical issues. Regulations tend to be very practical and can include lists, schedules, diagrams, forms, and charts. The rules of various levels of courts are generally published in the form of regulations.

Question 3

How to look up a statute

Answer 3

The statute that police consult most often is the Criminal Code. The most current version of this statute is cited as RSC 1985, c C-46 (the significance of the elements of this citation will be discussed below). Because it is one of the most frequently consulted Canadian statutes, the Criminal Code is often published by commercial publishers in both pocket editions and annotated editions that contain commentary, many of which contain the text of other related statutes, such as the Youth Criminal Justice Act,16 the Canada Evidence Act,17 and others creating criminal or quasi-criminal offences. These editions typically also include the text of the Charter of Rights and Freedoms. Current, commercially published editions of the Criminal Code will serve most research needs, but because such editions are usually published once a year, new provisions or amendments may not be included. To be absolutely sure that the information is up to date (for example, to prepare for a court appearance), one needs to update, or note up, research results by consulting an official source—that is, a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency—for the legislation, as described below.

Question 4

What is the difference between the criminal code and class and the ones they use in court

Answer 4

Current, commercially published editions of the Criminal Code will serve most research needs, but because such editions are usually published once a year, new provisions or amendments may not be included. To be absolutely sure that the information is up to date (for example, to prepare for a court appearance), one needs to update, or note up, research results by consulting an official source—that is, a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency—for the legislation

official source

a version of a statute or regulation that meets the courts’ standards for legitimacy, accuracy, and currency

Question 5

Know where to find the objectives of a statue

Answer 5

Preamble An introduction, made up of one or more provisions, the preamble sets out the objectives and guiding philosophy of the statute. The preamble can often provide some interesting insights into the socio-political context of the statute. It is also an official component of the statute for interpreting and enforcing the statute.

Question 6

Know about Canada constitution

Answer 6

British North America Act 1867. In 1982, the British Parliament passed the Canada Act 1982,2 which contained the Constitution Act, 1982.3 The Constitution Act, 1982 was passed by our Parliament and includes the Canadian Charter of Rights and Freedoms.4

Question 7

How to cite a federal and provincial statute

Answer 7

A reference to a statute will also likely provide the statute’s citation—a list of letters and numbers following the statute name that represent that statute’s “address” for the purpose of research.

A federal statute’s citation looks like this:

Criminal Code, RSC 1985, c C-46; or
Immigration and Refugee Protection Act, SC 2001, c 27.
A provincial statute’s citation looks like this:

Provincial Offences Act, RSO 1990, c P.33; or
Employment Standards Act, 2000, SO 2000, c 41.

Question 8

Reasonable limits of the charter

Answer 8

The reasonable limits of the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms are found in Section 1 of the Charter

The rights guaranteed by the Charter are important but are not without limits. Some rights-granting provisions contain an internal limitation. For example, section 7 guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (emphasis added). The content of “the principles of fundamental justice” has been a matter of judicial consideration (it has been interpreted by case law), and legal tests have evolved to determine whether a particular violation of a section 7 right will be deemed to be in accordance with the principles of fundamental justice.

Charter challenges have been brought by prison inmates who were denied the right to vote because of their incarceration. The decisions have made it clear that inmates are entitled to vote in federal and provincial elections.11 Restrictions on their voting have been held not to be “reasonable limits” on the inmates’ rights for the purpose of section 1 of the Charter, and policies preventing inmates from voting are unconstitutional.

Note that although many Charter rights are guaranteed to people who live in Canada regardless of citizenship, the wording of section 3 makes it clear that the right to vote is guaranteed to every citizen of Canada—that is, citizenship is a prerequisite to the eligibility to vote in most elections.

Question 9

What the charter governs

Answer 9

The Canadian Charter of Rights and Freedoms is a constitutional document that protects the fundamental rights and freedoms of individuals in Canada, governing interactions between individuals and the government. Adopted in 1982 as part of the Constitution Act, it ensures that all levels of government in Canada respect certain rights and freedoms while creating limits that can be justified in a free and democratic society. Key areas it covers include:

1. Fundamental Freedoms (Section 2)
   Freedom of expression
   Freedom of religion
   Freedom of peaceful assembly and association
2. Democratic Rights (Sections 3-5)
   Rights to vote and run in elections
   Limits on the duration of legislative bodies (such as a five-year maximum term for governments)
3. Mobility Rights (Section 6)
   Rights to enter, remain in, and leave Canada
   Rights to move and work in any province
4. Legal Rights (Sections 7-14)
   Right to life, liberty, and security of the person
   Rights on arrest or detention (e.g., protection against arbitrary detention, right to a lawyer)
   Fair trial rights (e.g., presumption of innocence, right to an interpreter if necessary)
5. Equality Rights (Section 15)
   Right to equality and freedom from discrimination based on race, sex, disability, and other protected grounds
6. Language Rights (Sections 16-22)
   Rights related to official languages, recognizing English and French as Canada’s official languages
   Rights to use either language in federal institutions
7. Minority Language Education Rights (Section 23)
   Right to education in one’s minority language (English or French), if there is sufficient demand in a province
   The Charter aims to create a balance between individual rights and the public good, using Section 1 (the Reasonable Limits Clause) to allow limitations on rights when necessary in a democratic society. Additionally, Section 33, known as the Notwithstanding Clause, allows provincial legislatures to temporarily override certain Charter rights.

Question 10

The rights of citizens

Answer 10

lthough not truly a limit, not all of the Charter rights are available to every person in Canada. The legal or “criminal law” rights are available to everyone, but the democratic and mobility rights apply only to citizens of Canada. Thus, it is important to look at the language of each section to determine who is entitled to the protection of the different rights in the Charter. For example, section 3 states:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

The words “Every citizen of Canada” make clear that this right is not available to non-citizens.

Question 11

What is a bill

Answer 11

a preliminary version of a statute law that is written down to be reviewed, debated, and voted on before becoming law

Question 12

Section 7 of the charter

Answer 12

Section 7 of the Canadian Charter of Rights and Freedoms protects three fundamental rights: life, liberty, and security of the person. It reads:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Question 13

section 8

Answer 13

Section 8 of the Canadian Charter of Rights and Freedoms protects individuals from unreasonable search and seizure by the government. It reads:

“Everyone has the right to be secure against unreasonable search or seizure.”

Question 14

section 9

Answer 14

Section 9 of the Canadian Charter of Rights and Freedoms protects individuals from arbitrary detention or imprisonment. It states:

“Everyone has the right not to be arbitrarily detained or imprisoned.”

Question 15

Section 10

Answer 15

Section 10 of the Canadian Charter of Rights and Freedoms protects the rights of individuals upon arrest or detention. It outlines three key rights:

“Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”

Question 16

Section 11

Answer 16

Section 11 of the Canadian Charter of Rights and Freedoms outlines the rights of individuals charged with an offense. These rights aim to ensure fairness and transparency in the criminal justice process. Section 11 reads:

“Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.”

Question 17

Section 24

Answer 17

Section 24 of the Canadian Charter of Rights and Freedoms provides individuals with remedies when their Charter rights or freedoms have been violated. This section allows individuals to apply to the courts for appropriate relief, and it includes a specific remedy related to the exclusion of evidence obtained through rights violations. Section 24 reads:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Question 18

Common law

Answer 18

The role of the common law in our legal system is a direct result of our history as a British colony; we have inherited the common law as part of our law-making system. The common law is the body of judicial decisions made by courts in England and in Canada that establishes legal rules and principles dealing with specific issues. The common law has evolved over many years and reflects changes in society.

common law
a legal rule or a body of legal principles, established through judicial decisions, that deals with particular legal issues or subject areas

Question 19

What is a citizen of Canada and what is not

Answer 19

In Canada, a citizen is a person who holds legal status as a member of the Canadian nation, with certain rights, responsibilities, and privileges established by the government. Canadian citizenship is defined by the Citizenship Act, and people can obtain it by birth or naturalization.

Who is a Citizen in Canada?
Citizens by Birth

Generally, any person born on Canadian soil is automatically a Canadian citizen, regardless of their parents’ citizenship or immigration status (except for children of foreign diplomats in Canada, who are not granted citizenship by birth).
Citizens by Naturalization

People born outside of Canada can become Canadian citizens through a formal application process known as naturalization.
Applicants must meet specific requirements, such as permanent resident status, a certain period of residence in Canada, knowledge of Canada, language proficiency, and no serious criminal history.
Dual or Multiple Citizenships

Canada allows its citizens to hold multiple nationalities, so a Canadian citizen may also be a citizen of another country. However, their Canadian citizenship status and rights within Canada remain intact.
Rights of Canadian Citizens

Citizens enjoy the full rights and freedoms provided by the Canadian Charter of Rights and Freedoms, including the right to vote, run for political office, enter and leave Canada freely, and access Canadian passports. They also have the duty to obey Canadian laws and are encouraged to participate in society.
Who is Not a Citizen in Canada?
Permanent Residents

Permanent residents are non-citizens who have the right to live and work in Canada indefinitely. However, they do not have certain rights reserved for citizens, such as voting or holding high-security public offices.
They may apply for citizenship after meeting residency and other requirements.
Temporary Residents

Temporary residents are people in Canada on a temporary basis, such as visitors, students, or temporary workers. They do not have the same legal status as citizens or permanent residents and are subject to immigration conditions.
Foreign Nationals

Foreign nationals are individuals who do not hold Canadian citizenship or permanent resident status and who are not authorized to live or work in Canada permanently. They are typically citizens of another country and may require a visa to enter Canada.
Stateless Individuals

Stateless individuals do not hold citizenship in any country, including Canada, though they may live in Canada under refugee or stateless status. They may apply for permanent residency and, eventually, citizenship if they meet the requirements.
Understanding who is a citizen is important because citizenship grants certain exclusive rights, like voting and holding a Canadian passport, and signifies full membership within the Canadian state.

Question 20

Limitations of a precedent

Answer 20

while precedent ensures consistency and stability, its limitations highlight the need for balance, allowing the law to evolve in response to new challenges while respecting past decisions. Courts often navigate these limitations by distinguishing cases or relying on legislative intervention to address outdated or problematic precedents.

Question 21

How to read a citation

Answer 21

the case name—for example, R v Ford;
a year in parentheses or square brackets—for example, (1982) or [1982]—which is either the year in which the case was decided (parentheses), or the year of the reporter volume in which it is reported (square brackets);
a number that represents the volume number of the series of case reports in which the case is reported—for example, 65;
letters that represent the initials of the case reports in which the case is reported—for example, “CCC” for “Canadian Criminal Cases” (see Appendix A); these initials may be followed by a series number if the case reporter has been published in more than one series—for example, “(2d)” means second series;
the page number in the case reporter where the case can be found—for example, 392; and
in parentheses, a short form of the name of the court from which the decision comes—for example, “SCC” for “Supreme Court of Canada”—if the court is not obvious from the name of the reporter.
The examples above produce the following case citation:
R v Ford (1982), 65 CCC (2d) 392 (SCC).

Question 22

Know what government institution falls under what jurisdiction

Answer 22

In Canada, different government institutions fall under the jurisdiction of federal, provincial/territorial, and municipal governments, with each level responsible for specific areas of law and administration. This division of powers is primarily established by the Constitution Act, 1867. Here’s a breakdown of which institutions typically fall under which jurisdiction:

1. Federal Jurisdiction
   The federal government, based in Ottawa, has jurisdiction over institutions and areas that affect the country as a whole or require nationwide consistency. Examples include:

Military and National Defense: The Canadian Armed Forces, Department of National Defence
Immigration and Citizenship: Immigration, Refugees, and Citizenship Canada (IRCC)
Banking and Currency: Bank of Canada, Office of the Superintendent of Financial Institutions (OSFI)
Criminal Law: The Criminal Code of Canada (though enforcement is often managed by provinces)
Foreign Affairs and International Trade: Global Affairs Canada
Employment Insurance and Pensions: Service Canada, Canada Pension Plan (CPP)
Indigenous Affairs: Indigenous Services Canada, Crown-Indigenous Relations and Northern Affairs Canada
Postal Services: Canada Post
Telecommunications and Broadcasting: Canadian Radio-television and Telecommunications Commission (CRTC)
Fisheries and Oceans: Department of Fisheries and Oceans (DFO)
Environmental Protection: Environment and Climate Change Canada (for issues that cross provincial borders or involve federal lands)
These institutions deal with areas requiring uniform policies across provinces and territories.

2. Provincial and Territorial Jurisdiction
   Provinces and territories manage areas of local concern and are responsible for institutions affecting the daily lives of people within their borders. Key areas include:

Healthcare: Ministries or Departments of Health (e.g., Ontario Ministry of Health), hospitals, healthcare regulations
Education: Ministries or Departments of Education, school boards, curriculum development
Civil and Property Rights: Courts handling civil law (e.g., family law, property disputes)
Municipal Affairs: Oversight of municipalities within each province, local zoning, and planning laws
Natural Resources: Provincial management of resources such as forestry, mining, and energy production
Provincial Police: Provincial police forces (e.g., Ontario Provincial Police) where applicable; in provinces without provincial police forces, the RCMP provides local policing by contract
Transportation and Infrastructure: Provincial highways, transport regulations, driver licensing and vehicle registration
Social Services: Provincial welfare programs, child protection services, provincial disability assistance
Labor and Employment Standards: Employment laws (e.g., minimum wage, worker safety regulations)
Each province and territory may have unique laws and institutions due to differences in population needs and resources.

3. Municipal Jurisdiction
   Municipal governments, created by the provinces, handle local services and regulations. They are responsible for:

Public Transit: Local transit authorities (e.g., Toronto Transit Commission)
Fire and Emergency Services: Fire departments, emergency response planning
Local Policing: Municipal police departments (e.g., Vancouver Police Department) in municipalities with their own police forces
Waste Management: Garbage collection, recycling programs
Local Roads and Infrastructure: Maintenance of city streets, sidewalks, and local facilities
Public Libraries, Parks, and Recreation: Libraries, parks, recreational facilities, and community centers
Zoning and Land Use Planning: Regulation of building permits, zoning for residential, commercial, and industrial land use
Public Health and Safety: Local public health units (e.g., for food safety inspections, immunizations)
Municipal governments vary in structure and responsibilities depending on their province or territory but are always subject to provincial law.

Question 23

what is required when creating a statute

Answer 23

The government may make this decision because it believes that the common law rules are appropriate and worthy of entrenchment in statute or because it disagrees with the common law rules that have developed on a certain legal issue and wants to ensure that changes are made. it must pass through the whole life cycle

Question 24

Who and what the charter applies to

Answer 24

he Charter protects those basic rights and freedoms of all Canadians that are considered essential to preserving Canada as a free and democratic country. It applies to all governments – federal, provincial and territorial – and includes protection of the following: fundamental freedoms, democratic rights.

Question 25

Know about the criminal code and some of its parts

Answer 25

Part I (1): General
Definitions, basic principles, and general provisions applicable to criminal law.

Part II (2): Offenses Against Public Order
Treason, sedition, and terrorism.
Unlawful assemblies, riots, and other public disturbances.

Part II.1 (2.1): Terrorism
Specific provisions for terrorism-related offenses.
Financing, participating in, or facilitating terrorist activities.

Part III (3): Firearms and Other Weapons
Regulations and offenses related to firearms, ammunition, and other weapons.

Part IV (4): Offenses Against the Administration of Law and Justice
Obstruction of justice, perjury, bribery, and escape from custody.
Offenses affecting the justice system’s integrity.

Part V (5): Sexual Offenses, Public Morals, and Disorderly Conduct
Sexual assault and exploitation.
Obscenity, indecent acts, and offenses related to public decency.

Part VI (6): Invasion of Privacy
Unlawful interception of private communications.
Protection of personal privacy.

Part VII (7): Disorderly Houses, Gaming, and Betting
Offenses related to gambling and gaming.

Part VIII (8): Offenses Against the Person and Reputation
Homicide, assault, kidnapping, and forcible confinement.
Criminal harassment, threats, and defamation.

Part IX (9): Offenses Against Rights of Property
Theft, fraud, forgery, and mischief.
Offenses involving destruction or interference with property.

Part X (10): Fraudulent Transactions Relating to Contracts and Trade
Offenses involving financial fraud, credit card fraud, and dishonest trade practices.

Part XI (11): Wilful and Forbidden Acts in Respect of Certain Property
Arson and other intentional property damage offenses.

Part XII (12): Offenses Relating to Currency
Counterfeiting and related offenses.

Part XII.1 (12.1): Proceeds of Crime
Laws regarding money laundering and dealing with proceeds of crime.

Part XIII (13): Attempts, Conspiracies, Accessories
Offenses related to attempts and conspiracies to commit crimes.
Being an accessory after the fact.

Part XIV (14): Jurisdiction
Provisions related to jurisdiction over offenses, including territorial and extraterritorial application.

Part XV (15): Special Procedure and Powers
Search warrants, production orders, and related procedural tools.

Part XVI (16): Compelling Appearance of an Accused Before a Justice and Interim Release
Arrests, bail, and remand.

Part XVII (17): Language of Accused
Provisions ensuring the rights of the accused to be tried in their preferred official language (English or French).

Part XVIII (18): Procedure on Preliminary Inquiry
Rules governing preliminary inquiries in criminal cases.

Part XIX (19): Indictable Offenses – Trial Without Jury
Procedures for non-jury trials in indictable offenses.

Part XX (20): Procedure in Jury Trials and General Provisions
Rules and procedures specific to jury trials.

Part XXI (21): Appeals – Indictable Offenses
Appeal procedures for indictable offenses.

Part XXI.1 (21.1): Mental Disorder
Provisions for dealing with offenders who have mental disorders.

Part XXII (22): Procuring Attendance
Subpoenas, warrants, and orders to secure attendance of witnesses.

Part XXIII (23): Sentencing
Sentencing principles, guidelines, and considerations.

Part XXIV (24): Dangerous Offenders and Long-Term Offenders
Provisions for designating individuals as dangerous or long-term offenders.

Part XXV (25): Effect and Enforcement of Sentences
Implementation and enforcement of sentences.

Part XXVI (26): Extraordinary Remedies
Applications for extraordinary remedies such as habeas corpus and certiorari.

Part XXVII (27): Summary Conviction Offenses
Procedures for summary conviction offenses.

Part XXVIII (28): Miscellaneous
Various provisions not covered in other parts.

Question 26

What is actus rea and mens rea

Answer 26

actus reus

Latin for “criminal act”; the objective element of an offence, which may be an act, an omission, or a state of being

mens rea

Latin for “guilty mind”; the subjective element of an offence that describes the state of mind or required intention necessary of the accused

Question 27

what is a Quasi Criminal

Answer 27

quasi-criminal

similar in nature to offences listed in the Criminal Code, but under provincial or municipal jurisdiction

These offences are usually punished by a penalty (such as a fine or term of imprisonment) or a forfeiture (the loss of a driver’s licence, for example).

Question 28

Reverse onus

Answer 28

reverse onus

a situation where, instead of the prosecution being required to prove all aspects of an offence (which is the norm), the accused bears the burden of proving a fact or allegation

The reverse-onus situations are as follows:

The accused is charged with committing a non–section 469 indictable offence while on bail for another indictable offence.
The accused is charged with committing a non–section 469 indictable offence under section 467.11, 467.111, 467.12, or 467.13 (in connection with organized crime).
The accused is charged with an offence relating to terrorism, such as those offences identified in sections 83.02 to 83.04 and 83.18 to 83.23.
The accused is charged with an offence under the Security of Information Act3 (see s 515(6)(a) for the specific list of offences).
The accused is charged with an offence under section 99, 100, or 103 (weapons trafficking), or an offence under section 239, 272, 273, 279(1), 279.1, 344, or 346 when that offence is alleged to have been committed using a firearm.
The accused is alleged to have committed an offence with a prohibited or restricted firearm, a weapon, a device, ammunition, or an explosive substance while under a weapons prohibition order under section 84(1).
The accused is charged with a non–section 469 indictable offence and does not ordinarily reside in Canada.
The accused is charged with an offence involving threatened, attempted, or actual violence against their intimate partner, and the accused has been previously convicted of an offence involving threatened, attempted, or actual violence against any intimate partner.
The accused is charged with an offence under sections 145(2) to (5), alleged to have been committed while the accused was free after being released for another offence under part XVI or section 679, 680, or 816.
The accused is charged with committing an offence punishable by life imprisonment under sections 5 to 7 of the Controlled Drugs and Substances Act4 or is charged with conspiring to commit such an offence (s 515(6)(d)).

Question 29

Section 469 offences

Answer 29

SECTION 469 OFFENCES—SUPERIOR COURT JURISDICTION

These offences fall under section 469 of the Criminal Code* and are under the Superior Court’s jurisdiction:

treason (s 47),
intimidating Parliament or legislature (s 51),
inciting to mutiny (s 53),
seditious offences (s 61),
piracy (s 74) and piratical acts (s 75),
murder (s 235), and
an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.†
For charges based on less serious or non–section 469 offences, section 503 of the Criminal Code provides that the accused is entitled to be brought in front of a justice of the peace within 24 hours of the initial arrest and detention.

Question 30

the considerations when ordering detention

Answer 30

During an investigative detention, the police do not have reasonable and probable grounds to arrest the detainee. They have a reasonable suspicion that the detainee is involved in some way with the offence. As such, the power to search a detainee is also significantly limited. In this case, the officer is permitted to perform a protective pat-down search for weapons if they believe on reasonable grounds that their own safety, or the safety of others, is at risk. A mere hunch or intuition will not be sufficient to warrant a search.

Question 31

Disclosure

Answer 31

Since our criminal justice system is based on the presumption of innocence, and since the common law (arising out of s 7 of the Charter) has determined that accused people have a right to know the case that will be made against them and to make full answer and defence to that case, we have developed a system of disclosure that requires the police to provide all evidence to the Crown, and the Crown to provide to accused people and their lawyers all evidence in its possession related to the particular offence. This is often called Crown disclosure.

The accused’s right to be able to make full answer and defence is at the core of our notion of fundamental justice, as set out in section 7 of the Charter. Full answer and defence involves not only the opportunity for the accused to present their case at trial but also the accused’s right to know what evidence the Crown has against them; to have an opportunity to contest and refute that evidence; and to know of any evidence that the police have found that may tend to prove that the accused did not, in fact, commit the offence or that another person did.

disclosure

the requirement that the prosecution provide to the defence any and all evidence relevant to the charges against an accused

Question 32

know about thr triers of fact and the triers of law

Answer 32

trier of fact

the person or people who must decide what facts have been proved at a criminal trial (either the judge or the jury)

trier of fact

the person or people who must decide what facts have been proved at a criminal trial (either the judge or the jury)

The trier of fact is either the judge (in a trial by judge alone) or the jury (in a trial by judge and jury). The trier of fact is the party that will make final decisions, based on the evidence, about what is true and what is not true. For example, the trier of fact will decide whether or not the accused was the person who pulled the trigger.

The trier of law is always the judge. It is the judge’s job in every trial to interpret the law and apply it to the proven facts of the case. The judge, for example, decides the legal question whether a specific piece of evidence should be admitted into the trial. If the trial is by judge alone, the judge will act as both trier of fact and trier of law. In trials by judge and jury, the judge will interpret the applicable law for the jury and, once all the evidence has been presented, will instruct the jury on how it must apply the law to the evidence presented at trial.

Question 33

Sworn Information

Answer 33

Sworn information in Canada law is a formal written statement that is confirmed by swearing an oath or affirmation before a competent authority. It can be used to start a court proceeding, accuse someone of a crime, or ask for a peace bond.

Question 34

What are pardons

Answer 34

In 2010, changes to the law were made to alter the application process for record suspensions (then called pardons). These came in the wake of public outrage following two news stories about pardons for sexual offenders. In one case, the media reported that convicted offender Karla Homolka—a woman who assisted an accomplice, Paul Bernardo, in the rape and murder of two teenage girls—intended to apply for a pardon. In the second case, the media reported that Graham James, the person convicted in the high-profile sexual abuse case involving NHL hockey players Sheldon Kennedy and Theoren Fleury, had already been granted a pardon.This public outcry led the government to draft and pass amendments to the Criminal Records Act,11 the legislation governing pardons. In 2012, yet another round of changes was made via the Safe Streets and Communities Act.12 This round of amendments replaced the term “pardon” with “record suspension” and introduced stricter eligibility requirements and longer waiting periods for those wanting to apply.

The current waiting periods include:

five years for a summary conviction offence other than a sexual offence against a child, and
ten years for an indictable offence other than a sexual offence or for a summary sexual offence against a child.

Question 34

The roles of the defence and the crown

Answer 34

At the hearing, the onus, or burden of proof, is on the Crown to prove, on a balance of probabilities, that the accused either should not be released at all pending trial or should be released on certain conditions. If the Crown fails to meet this onus, the accused must be released on their own recognizance—that is, a promise to return for the trial. This is covered by section 515 of the Criminal Code.

If the Crown is unable to show cause for why the accused should only be released with conditions, or is unable to show why the accused should be detained in custody, then the justice must release the accused on the least restrictive (least onerous) form of release. This is discussed in more detail below.

Section 515(6), however, describes certain situations where the onus to demonstrate why the accused should be released shifts to the accused, even though they are charged with a less serious (non–s 469) offence. This is called a reverse onus because it reverses the general rule that, because of the presumption of innocence, the prosecution is required to prove the accused’s guilt rather than the At the hearing, the onus, or burden of proof, is on the Crown to prove, on a balance of probabilities, that the accused either should not be released at all pending trial or should be released on certain conditions. If the Crown fails to meet this onus, the accused must be released on their own recognizance—that is, a promise to return for the trial. This is covered by section 515 of the Criminal Code.

If the Crown is unable to show cause for why the accused should only be released with conditions, or is unable to show why the accused should be detained in custody, then the justice must release the accused on the least restrictive (least onerous) form of release. This is discussed in more detail below.

Section 515(6), however, describes certain situations where the onus to demonstrate why the accused should be released shifts to the accused, even though they are charged with a less serious (non–s 469) offence. This is called a reverse onus because it reverses the general rule that, because of the presumption of innocence, the prosecution is required to prove the accused’s guilt rather than theaccused being required to prove their own innocence.

Question 34

Appeals

Answer 34

appeal

a review or challenge of a legal decision in a court of higher jurisdiction

The criminal trial ends with the announcement of the verdict: guilty or not guilty. Once the verdict has been announced, the jury is no longer needed and is dismissed by the judge. At that point, certain post-trial issues must be dealt with. The two most important of these are sentencing and appeals.

If the verdict is not guilty, the accused is free to go. In certain circumstances, however, the prosecution (in this case, the attorney general and their representatives in the Crown attorney’s office) can appeal the decision of the court.

If the verdict is guilty, the next step is sentencing the accused—that is, deciding what punishment they will face. The accused also has certain rights of appeal from a guilty verdict.

Question 34

Dangerous Offender Designation

Answer 34

In these cases, the prosecution can apply to have the offender designated as a long-term offender or a dangerous offender. These designations are created by part XXIV of the Criminal Code which sets out the procedure for making the designations, the consequences of being so designated, and the process for appealing a designation.

An offender can be designated as long-term or dangerous only if they have been convicted of an offence that falls into certain prescribed categories. In the case of dangerous offender designations, the relevant category is that of “serious personal injury” offences that are defined in section 752. The category of offences that can lead to a long-term offender designation includes primarily sexual offences, particularly those associated with high recidivism rates—for example, sexual abuse of children. For a dangerous offender designation, the offender must have committed more than one such offence, and the prosecution must be able to demonstrate that the offender poses an ongoing risk to society.
If the prosecution is successful in having the offender designated as a dangerous offender, the court has three options for protecting the public:

detention in a penitentiary for an indeterminate period (during which periodic reviews of the offender’s risk potential are conducted);
imposition of a custodial sentence followed by a long-term supervision order, upon release, for up to ten years; or
imposition of a sentence (just as in the normal course of sentencing, but often a particularly strict sentence is chosen).
A dangerous offender designation is valid for life.