final

Question 1

Criminal Law Principles

Answer 1

Criminal behaviour is an offence against all society, not just the
victim, therefore charges may be pursued even when the victim
does not want it/pursue it

Police are society’s peace keepers

Prosecutor’s are society’s court agents

Question 2

Beginning The Judicial Process

Answer 2

Anyone can report an incident to police, judge or justice of the
peace

Police may investigate

If police feel have reasonable and probably grounds for believing the acts ‘fit the crime’, will fill out an information and take to JP to swear it is true

The named individual is then formally ‘accused‘ of or ‘charged’ with committing the crime

The ‘information’ is the document that starts the criminal process

Question 3

Fair Trial

Answer 3

Every one accused of committing an offence can have their innocence or guilt determined: (By a judge &/or jury in open court)

there is no ‘justice’ behind closed doors

Presumed innocent

Onus on the Crown Prosecutor/Society to prove elements of the offence

The accused has the right to know the case against him/her

Standard of Proof = beyond a reasonable doubt

Question 4

Calling Evidence

Answer 4

Bringing forward ‘in person’ witnesses to testify – viva voice evidence – Examination-in-chief

Bringing forward other relevant evidence in accordance with the rule of evidence

To prove every element of the offence

Question 5

Challenge Evidence

Answer 5

The accused has a right to challenge all of the evidence, (face accusers in court) by:

Cross-examining witnesses

And calling witnesses to refute, or raise a doubt about, the Crown’s case,

The accused is never forced to testify if they do not want to, or it is not in their best interest

Question 6

4 areas of Cross-examining witnesses

Answer 6

To challenge their:

powers of observation

recall or memory

bias

truthfulness

Question 7

Adversarial system

Answer 7

one side trying to discredit the other by

lawful means – they are ‘adversaries’

Question 8

The Canadian Charter of Rights and Freedoms

Answer 8

Part 1 of the Constitution Act, 1982

protect individuals from exercise of powers of
government (Cannot create laws that ignore these freedoms, Cannot exercise their powers in a way that ignores these freedoms)

The ‘supreme law’ – s. 52(1)

Canadian Criminal Law
Federal – s. 91, enumerated power 27, national scope

Main piece of criminal legislation - Criminal Code:
 Crimes/Offences
 Penalties
 Procedures, etc.
 If found guilty, likely results in a criminal record

Provincial – s. 92, enumerated power 15, covers with the province
 Quasi-criminal = ‘offences’ (not ‘crimes’)

Municipal – receive powers from provinces/territories
 By-laws infractions, not ‘crimes’ or provincial ‘offences’

Question 9

Actus Reus

Answer 9

the illegal/criminal action or omission – the act

Question 10

Mens rea

Answer 10

the mental element required to convict someone, could involve intention or recklessness – the criminal mind/intention

Question 11

Summary offence

Answer 11

usually less serious with less punishment

s. 787 general penalty – fine <= $5000 or up to 6 12 months in prison)

streamlined process (e.g. no jury option, no preliminary inquiry, etc.)

Question 12

Indictable offence

Answer 12

only federal gov. can create

more serious offences,

more serious penalties (min &/or max by offence)

more involved process (e.g. jury option, preliminary inquiry only if punishable by 14 + years, etc.)

Question 13

Hybrid

Answer 13

Crown can decide to proceed by indictment or summarily

depending upon the facts, the history of the accused,

formerly indictable
offences punishable with 10 or less are hybrid

Question 14

Appearance Notice

Answer 14

usually used if accused charged with summary, hybrid, or some indictable offences

May be issued to an accused without arresting the accused

Police officers have on hand and complete them on the spot

Indicates accused name, brief outline of the charge(s), time and place of first court appearance, plus if indictable offence, time and place for fingerprinting and photo id

Accused signs to proves accused notified

Officer takes copy to Judge or JP to be confirmed, before 1st court appearance, then becomes a court order

Charges may be different &/or other charges added by the time the accused gets to court

Question 15

Summons

Answer 15

a court order requiring the accused to show up at court

Where the officer has r&pg but no contact with accused so cannot give the accused an appearance notice

Officer swears the information

Officer will ask the JP or Judge to issue a summons

Summons will be served on the accused

Question 16

When the accused is arrested, 3 options:

Answer 16

1. Release from custody without a bail hearing
2. Release from custody after a bail hearing, or
3. No release from custody – stays in pending trial

Question 17

What is arrest?

Answer 17

The interference with someone’s freedom by preventing freedom of movement

Question 18

Why arrest someone?

Answer 18

Necessary to identify someone believed to have, be or about to commit an offence

Necessary to preserve evidence

Necessary to prevent the continuation of an offence or commission of additional offences

Necessary to ensure that the person will show up in court to
face a charge

Question 19

Limits on arrest

Answer 19

Everyone is presumed innocent until proven guilty

Everyone has a right to a fair trial before guilt can be established

Therefore there needs to be a valid reason for arrest – Criminal Code

It is Not to be done arbitrarily – s.9 Charter

Question 20

When can someone be arrested for a criminal offence?

Answer 20

If a warrant has been issued for a person’s arrest

Without a warrant – CC allows for warrantless arrest If reasonable and probable grounds (r&pg) that a person has committed or is about to commit an indictable offence

Question 21

Citizen’s arrest

Answer 21

everyone who witnesses a breach of peace can :
 Step in and break it up
 Detain people until passed to peace officer
 But must use “no more force than is reasonably necessary…”

Criminal Code authorizes anyone to arrest a person:
 Found committing an indictable offence
 If there are reasonable grounds to believe that person has
committed any criminal offence and is being freshly pursued by
people with authority to arrest – power to assist

Must turn arrested person over to an officer ‘forthwith’ –
right away

Question 22

Promise to Appear

Answer 22

accused signs promising to show up in court

Question 23

Recognizance

Answer 23

accused signs promising to show up in court and to pay a set charge up to $500 if s/he fails to appear, with or without deposit of the money

Question 24

A Recognizance with an Undertaking

Answer 24

with requirements that the accused stay close, report to police regularly, refrain from contact with persons, not consume alcohol, etc.

Question 25

A Recognizance with a Surety plus conditions

Answer 25

surety pledges own assets as a guarantee for accused

Question 26

Presumption

Answer 26

accused shall be released unless the Prosecutor can show cause why the accused should be kept in custody or more strict release requirements

Question 27

Showing Cause

Answer 27

Justifications for keeping accused in custody

 Primary ground -To ensure the accused will attend court

 Secondary ground –Where detention necessary for the protection or safety of the public

Question 28

Information

Answer 28

Officially starts the court process in motion

‘Informant’ swears personal knowledge or r&pg for believing that the named accused has committed the specified offence

Taken before a JP or Judge who assures that the informant has knowledge of each of the required elements of the charge

Informant swears to this knowledge

JP or Judge also confirms the validity of the copies of appearance notices

Question 29

First Appearance

Answer 29

The accused is read the charge – the information

the accused will be asked whether to be tried in a lower court – where judge alone
is the only option – or a higher court – where the accused has a choice between judge or judge and jury

The accused will be asked to enter a plea – not guilty or guilty.

If NOT guilty then counsel will be asked to indicate the anticipated length of trial and process to set a trial date will begin

Question 30

Preliminary inquiry

Answer 30

is a hearing where the Crown had the
onus of establishing that it has some evidence on each element of
the offence so that the charge(s) ought to proceed to trial

The Crown will call evidence and the Defence may cross-examine

If the Judge is satisfied then the matter is scheduled for trial in the upper court

Question 31

Jury trial or No Jury trial

Answer 31

S.11(f) Charter - right to a trial by jury if offence has a maximum penalty of 5 years or more

Question 32

Jury Members

Answer 32

Impartial decision- makers – can you impartially assess the case?

Not allowed to communicate with prosecutors, defence counsel, witnesses or accused, directly or indirectly, outside of the courtroom

Lawyers not allowed to take steps to find out about potential jurors views

Not qualified if professional employed in the justice system e.g.
police, lawyers, etc

Illegal to ignore a jury summons = a court order

A judge can ‘excuse’ or ‘stand aside’ someone from a jury panel if:
 Has a personal relationship with accused, judge, lawyers or witnesses
 Sitting on the jury will cause personal hardship to the potential juror
 In the opinion of the judge, there is any other reasonable cause

Question 33

Challenge for Cause

Answer 33

both prosecutor and defence counsel are able to ‘challenge
for cause’ someone being selected as a Jury Member for various reasons such as:
 Inability to speak an official language of Canada that is the language of the trial;

 The juror has been convicted of an offence for which they were sentenced to term of more than 2 years

 The juror is partial to either the Crown or defence

Question 34

Job of Jury

Answer 34

Triers of fact

Judge provides any legal instruction to the jury after hearing the legal arguments of counsel

Decides whether the evidence presented is sufficient to prove beyond a reasonable doubt that the accused committed the crime alleged

Decision needs to be unanimous

If not (often call a ‘hung jury’), the judge may dismiss the jury and start the trial all over again

Question 35

Mental Fitness to Stand Trial

Answer 35

presumption is that everyone is fit to stand trial unless there
is evidence to the contrary

Is the accused:
 Unable to understand the court procedure?
 Unable to understand the potential consequences of the trial? Or
 Unable to give instructions to counsel/communicate effectively with his/her lawyer?

Question 36

Trial Evidence

Answer 36

Information that can be considered by the judge or jury in coming to a decision about the guilt or innocence of the accused

Nothing a lawyer says can be considered evidence upon which the judge or judge and jury can rely

Evidence comes through witnesses(oral evidence
or exhibits/documents)

Question 37

General intent

Answer 37

where the accused meant to do the actions of the actus reus,

Question 38

Specific intent

Answer 38

where the accused had a specific purpose
in what they did

more serious penalties

Question 39

Intoxication

Answer 39

common law defence - someone is so drunk that they may be incapable of forming intent (mens rea) of offence, only a partial defence and narrowed by legislation

Question 40

Automatism

Answer 40

common law defence - committing acts while in an unconscious or involuntary state e.g. sleep walking, blows to head = full defence

Question 41

Mental disorder

Answer 41

s. 16

disease of the mind renders the accused incapable of appreciating nature and quality of act or knowing it was wrong

leads to finding of ‘NCR’ – not criminally responsible

Question 42

Compulsion by threats

Answer 42

s.17

where someone commits a crime while being threatened with death or bodily harm

Question 43

Self-defence

Answer 43

s. 34

a person can use force to defend self or dependants as long as no more force than is necessary in response to assault or threat of assault

Question 44

Defence of property

Answer 44

s.35

reasonable force

Question 45

Provocation

Answer 45

s.232

statutory partial defense e.g. murder to manslaughter

Question 46

Judge’s two sentencing considerations

Answer 46

Specific deterrence – role of sentence to stop this offender for ever again doing crime and/or repeating
this crime

General deterrence – role of sentence to stop other people who might be considering criminal activity

Question 47

Sentencing Options

Answer 47

1. Jail Time
   Consecutive = finish one sentence and start the next
   Concurrent = offender serves both sentences at same time
   Intermittent = Serve time on weekends or other schedule
   Dangerous offenders get indeterminate sentences – no end date

2.Conditional Sentence
If no min. sentence required and J sentences to less than 2 yrs., then can order sentence be served in community if to do
so will not endanger public

3. Suspended Sentence
   J can suspend imposing jail time and release offender on terms of probation instead. If offender violates probation, then s/he can be sent to jail
4. Probation
   Can be combined with fine or jail time of less than 2 years
   If fail to comply = criminal hybrid offence, probation revoked and another sentence imposed
5. Fines
   May be jail time if fine not paid
6. Discharges
   J may consider absolute or conditional discharge
   Despite guilt, offender is not convicted of charge – no criminal record
7. Restitution Order
8. Prohibition order
   in addition to other sentence, where offence committed with weapon or violent offence

Question 48

Alternate Dispute Resolution

Answer 48

a different way to manage the conflict that is not based on the adversarial system

focuses more on the interests vs. rights of the parties e.g. mediation

Question 49

Restorative approaches

Answer 49

confronting accused, especially young offenders, with the impact of their crimes via meetings with parties affected – parents, victims, other family, elders