Exam Review Flashcards
The Dangerous Poor
The concept of the dangerous poor is that those who are in poverty are more likely to stoop to criminality to compete in society. It is a stereotype given to this marginalized group by those in power, and those that are poor, or in the lower class etc., or not allowed to participate in the creation of laws. The poor are regarded as separate from society and things that need regulation against
Marcus Aurelius: “poverty is the mother of crime”
OLD PREJUDICE: The poor are a dangerous people who will stoop to criminality if given the opportunity.
Anatole France: “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to bed in the streets and to steal bread”. If you criminalize these activities, then you are not criminalizing the poor because both the rich and the poor can participate in these activities.
Citizenship
a formal or informal decree/claim to a space or institution that declares our rights, obligations and sense of belonging. Citizenship confers rights, privileges, and obligations on the members of society. Citizens embraces civil, political, and social elements, bringing into play particular and morally based ideas of the social good and sentiments of belonging and commonality often far removed from material conditions and social context
Definition of Vagrant
In the 19th century British law, vagrants were 3 classes:
- an idle or disorderly person;
- rogue and vagabond;
- incorrigible rogue
Exception was notion of the deserving poor “impotent poor, lame and disabled, the sick, disbanded soldiers and university scholars
History of vagrancy laws, changing concept of citizenship.
These laws came from England to control those who are disorderly or idle, vagabonds and incorrigible rouges. These usually consisted of the impotent poor, the lame and disabled, the sick, disbanded soldiers, and university scholars. It’s a way to divide the “deserving poor” and the “undeserving poor”, to restrict behaviour in certain areas to cater to the wealthy in that area. For example making begging illegal at Yonge and Dundas Square to prevent poor people from being there.
Public Space
Spaces defined as ‘open’ to everyone for use, yet is often regulated and made exclusive through its governance. It denotes equal use and inclusive law, however, the law that defines the purpose of that space is created by the powerful, and institutes practices that maintain marginalized groups. Despite being ‘public space’, the legitimacy of public space is the question. The constraints put on the use of public space bring into question if it is truly open space because marginalized groups are not allowed to make full use of that space. The equality of use of space and equality of law is based in formal equality, as the laws that govern it punish the marginalized
Neo-liberalism
Neoliberalism is a policy model of social studies and economics that transfers control of economic factors to the private sector from the public sector.
- The Rule of the Market - liberating free enterprise or private enterprise from any bonds by the government
- Cutting public expenditure for social services - such as education and health care
- Deregulation - reduce government regulation of everything that could diminish profits
- Privatization - Sell state-owned enterprises, goods and services to private investors. This includes banks, key industries, railroads, toll highways, electricity, schools, hospitals and even fresh water
- Eliminating the concept of “the public good” or “community” - replacing with “individual responsibility”
Urban Governance
This term basically indicates how the urban space and the citizenships are being governed by the law and government. Laws regulating the use of space signify the function of space and citizenship inclusions and exclusions (examples, places downtown where people cannot stay or interfere with pedestrian traffic), think of sidewalks, park benches, public transit, green spaces, bus shelters, streets, and bike lanes. It’s creation benefits capitalist interests, and marginalizes the poor and ‘deviant groups’. Urban governance makes public spaces smaller. Blomley reading reference, architecture such as park benches with armrests prevent homeless people from using parks as a place to sleep
Panopticon
Panopticon (Jeremy Bentham) is the idea that there are the few watching the many. Mechanism of power reduced to its ideal form
Ex. Prisons have panopticon architecture for surveillance
Synoptics
Synoptic is the idea that the many are watching the few. Gives the ability to watch those who’s watching
Ex. Social Media
Culpability
Culpability generally implies that an act performed is wrong but does not involve any evil intent by the wrongdoer. The connotation of the term is fault rather than malice or a guilty purpose. Culpability plays the determining role in Tort and Criminal law
Sentencing Circles
A community-directed process, in partnership with the criminal justice system, to develop consensus on an appropriate sentence that addresses the concerns of all interested parties, only for sentences of 2 years or less. It operates within the Canadian Criminal Justice system. Offences, which have minimum punishments above two years imprisonment, are rarely heard. Often only offenders who are eligible for a suspended or intermittent sentence, or a short jail term with probation, make it before a sentencing circle
Sentencing Circles
A method of dealing with members of the community who have broken the law. It involves discussion between offenders, victims, and members of the community. Operate within the Canadian Criminal Justice system and therefore within the parameters set out by the Canadian Criminal Code and case law/appeals, often taking the place of criminal court sentencing hearings, once guilt has been established. Offences, which have minimum punishments above two years imprisonment, are rarely heard. Often only offenders who are eligible for a suspended or intermittent sentence, or a short jail term with probation, make it before a sentencing circle
Legal Consciousness
The sum of views and ideas expressing the attitude of people toward law, legality, and justice and their concept of what is lawful and unlawful. Legal consciousness is a form of social consciousness. The customs and feelings of people in relation to legal phenomena constitute the psychological aspect of legal consciousness; among these are a sense of justice and a loathing of crimes and illegal actions. It refers to what people do as well as say about the law is the way in which law is experienced and interpreted by specific individuals as they engage (with the law), avoid (can’t change the law), resist (against the law) or just assume the law and legal meanings
Liberal Notion of Justice
Liberal notion of justice that we must all be treated equally before the law. The rule of law was developed in the Magna Carta when the English barons forced King John to sign.
3 important parts:
- law is necessary in an orderly society.
- the law applies to everyone.
- a person’s legal rights will not be taken away except in accordance with the law
Aboriginal Law
Aboriginal Laws grow from the customs, traditions, and rules of a society of people. They exist to inform people what that particular society considers to be acceptable and unacceptable.
Aboriginal law place importance of Elders, healing the body, mind, and spirit, harmony as an overriding principle in disputes and creation stories.
“Not Guilty Plea” to a charge for which a person is responsible for: in Western tradition: not dishonest; in Aboriginal tradition: dishonest
Penalty: carries out by the whole clan
In the Aboriginal justice system, once the atonement had been made and the offence recognized, the matter was forgotten and harmony within the community was considered restored, while in the European justice system, the offender “pays his debt” to society, usually by going to jail. Rarely is there atonement to the person or persons injured. There is little restoration of harmony within the community
Fault and Liability
“Fault” is a type of liability in which the plaintiff must prove that the defendant’s conduct was either negligent or intentional; fault-based liability is the opposite of strict liability. In fact, in many areas of law, if fault could not be assigned, the system would fall apart as liability can only be found if fault is established first. Fault is particularly important in cases which require mens rea. In these cases it will have to be proven that a certain state of mind was present in the defendant.
In criminal law the requirement that mens rea or a guilty mind be established amounts to saying that criminal liability is imposed on blameworthy activity. This close connection between fault and mens rea results in punishment being based on the degree of moral blameworthiness that the defendant is believed to have possessed.
Duty of Care
A legal obligation that establishes a person’s duty to ensure a standard of care when they are performing acts that could foreseeably harm others. The requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence
Urban Space and Citizenship
Areas occupied by towns and cities. This idea ties into the concept of public space and how it is regulated. With understanding urban space, it is closely related to citizenship. Understanding urban space and its regulations classifies citizenship within that district. For example, in an urban space that is regulated, citizens that are more so regulated against – the marginalized, for example, youth, poor, lower class, - are not allowed to participate in all the same rights as the higher and powerful classes. The use of space to regulate citizens creates subjective standards for full citizenship in the city
Legitimation of Danger
The idea that creating spaces for counter-hegemonic practices makes a deviant act considered ‘legal,’ and then the act itself is not practiced there because there is no danger to being counter-hegemonic. The danger is legalized, and people do not wish to participate in it. (C. Noble)
Mens rea
Mens Rea means guilty mind, a blameworthy mental element. It can be specifically stated in Criminal Code (wilfully, intentionally, negligently). Moreover, it is the state of mind indicating culpability which is required by statute as an element of a crime. Usually a lawyer must discuss what state of mind the accused was in during and before the time in question). The concept of mens rea developed in England during the latter part of the common-law era (about year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind
Negligence
Negligence is the thinnest form of criminal culpability and is in that respect most closely related to its civilian counterpart. Thus, to connect the reasonable person in his civil and in his criminal contexts is to link civil and criminal law at their point of closest relation. Failure to exercise the care that a reasonable, prudent person would exercise in the same circumstances. Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of “negligence” the careless person will be legally liable for any resulting harm.
Elements of Negligence Claim
- Duty - did the defendant owe the plaintiff duty of care
- Breach of duty - comparison to reasonable person
- Causation - evidence of negligence (injury)
- Damages - compensation for damages
Right to presumed innocent
The presumption of the innocence of a criminal defendant is best described as an assumption of innocence that is indulged in the absence of contrary evidence. In practice the presumption of innocence is animated by the requirement that the government prove the charges against the defendant Beyond a Reasonable Doubt. The presumption of innocence is essential to the criminal process. The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts
(s.11 Charter)
Section 11 of the Charter guarantees every individual certain rights when they are charged with a criminal offence. Section 11 applies to all types of offences (criminal, quasi-criminal, and regulatory offences). Section 11 protects individuals as they navigate their way through the criminal justice system, from the moment they are charged until their matter is resolved. Different rights attach to the individual at different stages of the proceedings.
- 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.
