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CRIM 135 > FINAL EXAM REVIEW > Flashcards

FINAL EXAM REVIEW Flashcards

Anything after midterm

1
Q

Crime is put into three categories of offence. List all three

A

1) Offence against PERSONS
2) Offence against PROPERTY
3) Offences considered EVIL in themselves, irrespective of whether harm is done on another person or the property of another person

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2
Q

Examples of offences against persons

A
  • culpable homicide
  • sexual assault
  • robbery
  • assault
  • attempted murder
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3
Q

Examples of offences against property

A
  • theft
  • fraud
  • income tax evasion
  • insider trading
  • forgery
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4
Q

Examples of offences considered evil within themselves

A
  • soliciting for prostitution
  • pornography
  • the use and distribution of certain drugs
  • certain gaming activities
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5
Q

When did a CC finally exist within Canada and where/who was it adopted from?

A
  1. Adopted the British reform code written by Sir James Fitzjames Stephen.
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6
Q

Tort law

A

based on the idea that people are liable for the consequences of their actions, whether intentional or accidental, if they cause harm to another person or entity

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7
Q

In criminal law, the ______ interests is favourable in conviction and punishment, not the _____ interests

A

states, victims

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8
Q

In order to be convicted of a crime, an individual must have committed an ______ and simultaneously possess _______

A

actus reus, mens rea

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9
Q

actus reus

A

an evil act

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10
Q

mens rea

A

evil mind/intention

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11
Q

R. v. Cooper

A

He got drunk with a friend/lover and they got sexual in a jeep and he got pissed and strangled her to death but he claims that he “blacked out” and mens rea wasn’t evident but his appeal was dismissed and he was convicted because before he blacked out he was intending to cause bodily harm and he knew the consequences of strangling someone and cutting off their airway

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12
Q

mens rea can be proven in three ways (not the 3 C’s)

A

1) Intent
2) Recklessness
3) Wilful blindness

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13
Q

R. v. Hundal

A

A man that drove into downtown vancouvers intersection killed someone while driving past a red light and he was convicted because mens rea was evident NOT as a direct intent but rather as subjective intention to commit the given offene (based on recklessness)

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14
Q

Strict liability offence

A

crown needs to prove objective/intent and accused must prove innocence

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15
Q

Absolute liability offence

A

intent is irrelevant. The prosecutor needs to prove only that the person in question committed the offence

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16
Q

s. 21 of Criminal Code (parties to an offence)

A

s. 21(1) Every one is a party to an offence who
(a) actually commits it
(b) does/omits to do anything for the purpose of aiding any person to commit it
(c) abets any person in committing it
(2) When 2 or more persons form an INTENTION in common to carry out an unlawful purpose and aid each other in doing so and having KNOWLEDGE the consequences of one’s action is a party to an offence

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17
Q

Objective intention

A

an element of MENS REA is applied whether a reasonable person would have expected the a criminal deed to flow from the defendant actions

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18
Q

Subjective intentions

A

an element of mens rea where if that person SPECIFICALLY (accused) intended to do it

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19
Q

defences or mitigations of criminal responsibility

A

when accused tries to show they were not responsible in the crime

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20
Q

name some justifications used for the act of crimes

A
  • acting under duress
  • necessity
  • self-defence
  • provocation
  • defence of property
  • entrapment
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21
Q

s. 17 of CC

A

sets out a justification for the commission of crime UNDER DURESS

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22
Q

when does s. 17 of the CC apply to an accused defence argument of acting under duress?

A

1) the threat must be immediate
2) the person making the threat must be present when the offence is committed
3) the accused must believe the threats WILL happen
4) and the person threatened must not be part of a criminal conspiracy

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23
Q

Defence of necessity

A

In an emergency when all other choices are gone and the only way out is to perform a criminal act. CLEAR AND IMMINENT PERIL. always ask: was there a LEGAL alternative? Cousin of duress and self-defence

R. v. Morgentaler - argued that he had to perform abortions to protect the mental and/or physical health of the woman in question.

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24
Q

defence of entrapment

A

when an accused argues that had it not been for the actions of the popo, the crime would not have been committed

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25
Q

Canadian courts do not permit entrapment as a defence, UNLESS….

A

when police conduct amounts to an abuse of process where conduct, under s. 24(2) of the Charter that would “bring the administration of justice into disrepute

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26
Q

If the tendency of the conduct to bring our system of justice into disrepute is greater than the value of the evidence obtained, then…

A

the evidence will be excluded

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27
Q

“air of reality” test

A

trial judge uses this to see whether a defence should be put to a jury.

Two part test:

(1) Evidence
(2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true

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28
Q

Under which specific circumstances will the defence of drunkenness be considered?

A

If an “air of reality” exists

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29
Q

Daviault v. R. (1994)

A

65 yo woman invited Daviault over for drinks. He got blackout drunk and threw her on the bed and sexually assaulted her. Court held his conviction could not stand and ordered a new trial. Many people were angry about this and federal government enacted s. 33(1) that said self induced intoxication is no longer a defence to a criminal charge.

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30
Q

Defence of drunkenness can, however, serve to reduce a charge of _______ to _________

A

murder to manslaughter

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31
Q

R. v. Boughard-Lebrun (2011)

A

most recent case about defence of drunkenness. Appellant Tommy Boughard-Lebrun and his friend Yohann Schmouth got fucked up on ecstasy pill named “poire bleue” and assaulted a guy and when a neighbour intervened, they beat him to the point of a permanent disability, having to live in a hospital for the rest of his life. Held: that appellant was not suffering from a “mental disorder” during assault for the purposes of s. 16 of CC and was convicted.

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32
Q

Pappajohn v. R.

A

Man has intercourse with real estate woman and she says it was rape and he says that it was “rough play.” His defence of honest mistake was not justified. He was convicted

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33
Q

R. v. Sansregret

A

Abusive ex breaks into complainants house 2x and both times she has sex with him to calm him down to protect herself from losing her sanity and her life because he would kill her. She filed rape again after second time and he was convicted.

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34
Q

R. v. Ewanchuk

A

17 yo looking for a job was sexually assaulted during a job interview in employers trailer and even though he obliged to each time she said no, he should have stopped all together but the fact that he acknowledged each time he was saying ok to her decline and passing her a $100 bill to keep quiet is all sign of sexual assault. He was convicted.

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35
Q

R. v. Hutchinson

A

Complainant consented to sex but told her partner to wear a condom to prevent pregnancy. He poked holes in the condom and she got pregnant. SCC held that this was sexual assault.

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36
Q

R. v. Lavallee

A

Accused was in an abusive relationship and she was constantly threatened with lethal abuse. To protect herself when he said “if you don’t kill me, I’ll kill you” she shot him in the back of his head and courts held that it was self-defence and she was not charged criminally. Womens rights groups were happy about this because it brought attention to the issues of battered wife syndrome but others said that this should have lightened her sentencing but have her criminally charged still

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37
Q

indictable offence

A

offences considered VERY serious and carry SUBSTANTIAL penalties

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38
Q

summary offence

A

less serious than others and carry a max sentence of a fine or no more than $5000 OR 6 months incarceration

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39
Q

hybrid offence

A

when the crown decides whether to approach the trial as a summary or indictable offence

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40
Q

4 attempts of sentencing

A

1) General deterrence - deter general public from committing specific crime
2) Specific deterrence - deter that particular offender
3) Community denunciation - educating public so they deter from act (close to general)
4) Rehabilitation - correcting the offender, not punishing

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41
Q

R. v. Horon

A

Depressed guy gets drunk and drives and hits oncoming traffic resulting in injuries to other driver (they didn’t die) and the judge took into account all the factors on page 326 of book and he was only charged with a 2 year driving suspension, probation, and a 2 year driving prohibition

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42
Q

R. v. Peters

A

READ IT ON PAGE 331 its bs

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43
Q

Tort

A

a breach of legal duty, other than under contract, with liability for damages

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44
Q

we define a crime as a ______ wrong, an offence against the ______ interest. We define a tort as a _____ wrong, an offence against the ______ interest of an ______, _____, or _______

A

public, public. private, private, individual, corporation, or government.

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45
Q

what is the object of the tort system in comparison to the criminal law system

A

Tort’s object is to COMPENSATE victims of either intentional/negligent acts. NO GUILT in tort, only testing LIABILITY. Criminal law DOES NOT exist to compensate victims but to punish

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46
Q

purposes of criminal law

A

Designed to respond to infringements against the public interest.

1) deter specific offenders
2) deter general public
3) rehabilitation of offenders
4) express moral condemnation of proscribed behaviour

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47
Q

The two types of tort

A

1) intentional tort

2) negligence tort

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48
Q

Intentional tort

A

INTENTIONAL infliction of mental/physical harm to persons/property

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49
Q

negligence tort

A

the failure of an individual/collectivity to conform to a standard of REASONABLE CARE

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50
Q

plaintiff

A

a person who brings a case against another in a court of law

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51
Q

Tort liability is premised upon meeting a ____________, wheres criminal convictions demands ___________________

A

balance of probabilities test, proof of the offence beyond a reasonable doubt

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52
Q

does tort law need both mens rea and actus reus? If not, which one does it use?

A

actus reus only needed. no req of mens rea - evil intent

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53
Q

in tort law, provinces have made criminal injury compensation boards or tribunals. Why?

A

because most offenders have no financial resources to pay back the victims, which means that private matter often extract from the wealthy. the provinces made these boards and tribunals to pay victims on behalf of the state.

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54
Q

The two sections of the Criminal Code that defines certain kinds of negligence as criminal

A

s. 219 and s. 220

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55
Q

Punitive damages

A

damages that are awarded in tort beyond what is necessary to compensate a victim for losses sustained and for pain/suffering. Purpose of this is to DETER the conduct in question and bringing a PUBLIC law objective to the realm of PRIVATE law

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56
Q

what are the problems with punitive-deterrence and appeasement or denunciation functions of tort law?

A

1) an emphasis on punitive damages in tort may DUPLICATE the existing imposition of sanctions by the criminal court system. This can make TWO SETS of punishment upon an accused.
2) MAJORITY of tort actions are found to be based on non-criminal NEGLIGENCE, the goals of punishment and denunciation are way more difficult to justify.

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57
Q

Punitive damages are awarded “if, but only if” all other…

A

penalties have been taken into account and found to be inadequate to accomplish the objectives of retribution, deterrence, and denunciation

58
Q

To the extent that a defendant has suffered other retribution, denunciation/deterrence, civil or criminal for the misconduct in question, the need for additional punishment is _______ and may be _______.

A

lessened and may be eliminated

59
Q

Whiten v. Pilot Insurance

A

1) Whiten buys a home in 1985
2) in 1994 the house goes on fire and they lose everything
3) Pilot insurance gives them ONLY 5000 in living expenses and doesn’t want to give the 345k that Whiten is entitled to.
4) Pilot insurance then claimed in an 8 WEEK TRIAL that Whiten committed ARSON by deliberately burning down her house
5) no air of reality for these claims so the accusations were false.
6) They dragged it on for 2 years in hopes of getting her to settle for less than she was entitled to
7) Jury noted this and awarded her ONE MILLION DOLLARS

60
Q

Justice Binnie explains the Whiten v. Pilot Insurance case. What was his opinion on the punitive damages of 1 million dollars?

A

He would not have awarded 1 mill in punitive damages. He believed the award was within the RATIONAL LIMITS of the jury. He also believed the award was not so disproportionate as to exceed BOUNDS OF RATIONALITY.

61
Q

Lord Denning explains the Miller v. Jackson case. What was his opinion on it?

A

that the public interest should prevail over the private interest. The cricket club should not be driven out. The right exercise of discretion is to refuse an injunction; and, of course, to refuse damages in lieu of an injunction

62
Q

Liability

A

what the court decides in a private law action. court assesses FAULT and decides whether DAMAGES are AWARDED.

63
Q

How does liability differ from a “finding of guilt?”

A

“finding of guilt” is the determination that a judge must make before a wrongdoer can be convicted in CRIMINAL LAW.

64
Q

Battery

A

the INTENTIONAL infliction upon the body of another of a harmful/offensive CONTACT.

65
Q

Difference between assault and battery

A

Assault: occurs when there is REASONABLE APPREHENSION of bodily harm. You reasonably believe someone will assault you.
Battery: occurs when bodily harm is ACTUALLY INFLICTED

66
Q

what are the accepted defences to the tort of battery?

A

1) consent
2) self-defence
3) defence of property
4) necessity
5) and legal authority

67
Q

law of negligence relied on the doctrine of ______

A

foreseeability

68
Q

In Bettel v. Yim, the fact that Yim did NOT intend to strike Bettels nose with his head, or could NOT foresee that he would do so, does NOT limit his ____________

A

liability for the assault

69
Q

what are the 2 most common cases that come up in the defence of CONSENT?

A

1) sexual assault cases

2) contact sports

70
Q

where and when did claims of negligence begin to appear?

A

In England at the time of the Industrial Revolution. It placed a DUTY OF CARE upon citizens within certain RELATIONSHIPS

71
Q

In 1856, Blyth v. Birmingham Water Works, the court of Exchequer defined negligence as……

A

“the omission to do something which a reasonable man, guided upon those considering which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”

72
Q

Donoghue v. Stevenson was a ______ case because of its extension of the doctrine of _________ to the products of manufacturers

A

landmark, negligence

73
Q

In contemporary cases of product liability, legal issues in dispute have been compounded. What do they look at?

A

1) responsibility for the plaintiffs loss
2) determine whether sufficient info has been provided to potential consumers
3) asking if adequate warnings and instructions were given to the plaintiff

74
Q

Who formulated the guiding principle of liability underlying present law of products liability?

A

Lord Atkin in the Donoghue v. Stevenson

75
Q

Donoghue v. Stevenson

A

snail in ginger beer case

76
Q

Bettel v. Yim

A

Bettel lit match in store which caused bag of charcoal to make fire. Yim did not want Bettel to leave and shook him to get a confession. While shaking, he hit his head on Bettel’s nose that gave him a bloody nose.

77
Q

A successful action in NEGLIGENCE requires that the plaintiff demonstrates…

A

1) that the defendant owed him a DUTY OF CARE
2) that defendants behaviour BREACHED the standard of care
3) plaintiff sustained DAMAGE
4) Damage was CAUSED, in FACT and in LAW, by the defendants breach

78
Q

contributory negligence

A

a defence to negligence. It is an argument that the plaintiff has either CONTRIBUTED to or CREATED the negligence complained of

79
Q

Defences to negligence

A

1) Contributory negligence
2) Accident (Blyth v. Birmingham Water Works Co.)
3) Voluntary participation (Tallow v. Tailfeathers)
4) Voluntary assumption of risk

80
Q

Which case is linked with the voluntary participation defence in negligence? explain the case.

A

Tallow v. Tailfeathers - plaintiffs were passengers in a stolen car and defendant was driving drunk when he fell asleep and crashed into a pole. One passenger died and everyone else was injured. The plaintiffs did not object to the defendant driving so they can not make a claim of negligence based on the decision of EX TURPI CAUSA, NON ORITUR ACTIO

81
Q

Ex turpi causa, non oritur actio and which case it applied to.

A

latin for “an action does not occur (or arise) for an illegal cause.” - of an illegal cause there will be no lawsuit.
Tallow v. Tailfeathers (plaintiff was voluntarily involved in the illegal act)

82
Q

Blyth v. Birmingham Water Works Co.

A

tort claim to recover damages when a fireplug resulted in the flooding of the plaintiffs property. Defence of negligence was put as an ACCIDENT

83
Q

King v. Redlich and what defence of negligence it was applied to?

A

1) Appellant was struck in the head with a hockey puck while his teammate was doing practice shots.
2) Defence of voluntary assumption of risk was applied and it went through

84
Q

Intentional torts and torts of negligence have a lot to do with COMPENSATION. However, there are issues with tort law. What is it? (4)

A

1) tort law provides compensation to a SMALL # of accident victims and only in LIMITED circumstances
2) accident victim must make a SUBSTANTIAL FINANCIAL INVESTMENT to initiate process
3) plaintiff must prove fault, not need,
4) generally accepted and documented that tort law is an EXTREMELY inefficient mechanism for providing compensation

85
Q

Which two areas of accidents have victims not been provided an efficient mechanism of compensation in tort law?

A

1) Automobile accidents

2) Work-related accidents

86
Q

In Canada, _________ plans have displaced the used of claims in ______ for accidents such as automobile and work-related.

A

compensation, tort.

For automobile, no-fault compensation is provided by either private insurers or government agencies (ICBC). Worker’s compensation now exist with boards that provide less costly, more efficient and comprehensive compensation for accidents in the workplace than courtroom claims in tort.

87
Q

What is the one thing that Workers Compensation boards for work-related accidents can’t compensate for that tort CAN?

A

Unlike tort, they do not provide for the possibility of compensation for PAIN and SUFFERING.

88
Q

John Doe v. Bennet

A

36 men were sexually assaulted by a Roman Catholic priest named Father Bennett. The issue in this case was whether direct or vicarious liability applied. IT DID.

89
Q

Doctrine of vicarious liability

John Doe v. Bennet

A

puts liability on the employer/principle of the tortfeaser, based on the ground that as the person RESPONSIBLE for the activity/enterprise in question, they should be held responsible for LOSS to THIRD PARTIES that result from the activity/enterprise.

90
Q

In Bazley v. Curry (1999), the court said that vicarious liability may usefully be approached in 2 steps. What are they?

A

1) A court should determine whether there are PRECEDENTS which unambiguously determine whether the case should consider vicarious liability
2) If there is no precedence, it should determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability

91
Q

_________ ________ is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss/injury to members of the public

A

Vicarious liability

92
Q

Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. What are they?

A

1) the relationship between tortfeaser and the person against whom liability is sought must be sufficiently CLOSE
2) the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of FAIR and EFFECTIVE compensation and deterrence of future harm are met.

93
Q

For vicarious liability, in determining whether there is a sufficient connection in the case of intentional torts, facts to be considered, but not limited to are….(5)

A

1) the opportunity that the enterprise AFFORDED the employee to ABUSE his/her power
2) the extent to which the wrongful act may have FURTHERED the employers aims (then more likely to have been committed by the employee)
3) the extent to which the wrongful act was related to FRICTION, CONFRONTATION, or INTIMACY inherent in the employers enterprise
4) the extent of POWER conferred on the employee in relation to the victim
5) the VULNERABILITY of potential victims to wrongful exercise of the employees power

94
Q

Mcdonald v. Mombourquette (1996)

A

Nova Scotia Court of Appeal reversed the trial judges finding that the Roman Catholic & Episcopal Corporation of Antigonish was VICARIOUSLY LIABLE for sexual assaults committed by a priest on children in the parish. a KEY factor was that the priest had acted “TOTALLY CONTRARY to the religious tenets which he has sworn to uphold”

95
Q

Name all the cases with Roman Catholic Church sexual assaults (6)

A

1) John Doe v. Bennet (1979)
2) Bazley v. Curry (1999)
3) Jacobi v. Griffiths (1999)
4) K.L.B. v. British Columbia (2003)
5) Mcdonald v. Mombourquette (1996)
6) E.B. v. Order of the Oblates of Mary Immaculate in the Province of BC (2005)

96
Q

A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guests actions, UNLESS…(childs v. Desormeaux)

A

the hosts conduct implicates him/her in the creation or exacerbation of the risk

97
Q

Childs v. Desormeaux

A

when Child was a teen, she left a party with a group of people where the adult driving was DRUNK. They got into a car accident and she was paralyzed from the waist down. She sued the driver AND the hosts of the party for not being able to see that he was gonna drunk drive. Drunk driver got 10 years but hosts of the party were not liable.

98
Q

What was the commentary of Mothers Against Drunk Driving Canada on the Childs v. Desormeaux?

A

They also thought the hosts were not legally responsible. They said the decision is troubling on many ground though because the courts analysis of the risks of social hosting is INCONSISTENT with statistics showing that there re more impaired drivers coming from private homes than commercial licensed establishments

99
Q

Bill C-38

A

In July 2005, Canada passed Bill C-38 which was an act that provides for SAME-SEX marriage for CIVIL purposes

100
Q

Bill C-38 may be cited as

A

the Civil Marriage Act

101
Q

Define marriage

A

for civil purposes, is the lawful union of two persons to the exclusion of all others

102
Q

T/F: religious groups are FREE to refuse to perform marriages that are not in accordance with their religious beliefs

A

TRUE.

103
Q

2014 divorce rates in comparison to 1960 shows that divorce rate is _____ times that of ______

A

four, 1960

104
Q

Before the turn of the century, divorce was hard af to get. In some provinces, a “parliamentary divorce” was the ONLY option. Define.

A

A private members bill had to pass FIRST READING in both the COMMONS and the SENATE. Then it goes to a SECOND READING in the H.O.C. and after that, it could be heard by a SPECIAL DIVORCE COMMITTEE

105
Q

James Snell did a study of divorce from 1900 to 1940. What did he observe?

A

1) divorce in Canada was founded on a belief of INNOCENCE and GUILT
2) in the process, through MANDATORY confrontation, those attributes would be assigned to participating parties
3) FEW divorces were granted through the judicial/legislative process and this matter was NOT a concern in the dominion

106
Q

Changes in social attitudes with respect to divorce began before the ____ ____ ____, but it was not until the _____ that LAW changed to reflect the new realities.

A

second world war, 1960’s

107
Q

Divorce Act of 1968

A

1) the first federal divorce statute
2) took a first step into “no fault” divorce and permitted a divorce if the partners had lived “separate and apart” for a period of THREE to FIVE years.

108
Q

Some would say that the increase in divorce during the late 60’s to early 70’s can be tied to…

A

the sexual liberation and feminist movements

109
Q

conservatives and liberals have been in argument for a long time in regards to the effects of feminist movements on divorce. What are their arguments?

A

conservatives: feminism is to blame for the increase divorce rate
liberals: divorce is not evil in itself and that LESS restrictive divorce laws have helped to give women a greater range of choices

110
Q

_____-_____ families are the most common type of family. Why?

A

Dual-earner families.

It is the most common because in the 1960’s when birth control became available, LOTS of women were able to enter the labour force which changed the economic and social structure of families.

111
Q

when birth control became available in the 1960’s, womens control over their fertility was linked to a change in the ____ and ____ structure of the family. This resulted in today’s most common type of family to be ____-____ families.

A

economic and social. dual-earner

112
Q

Give the stats for women in labour throughout the years.

In 1966, 1975, 2001, and 2013

A

1966 - 2.3 million
1975 - more then 5.5 million
2001 - almost 7.5 million
2013 - more than 9 million

113
Q

When birth control was made available in the 1960’s, by today, the women in labour force increased by ___%.

A

70%

114
Q

Power to legislate in marriage and divorce is given to the _____ government in the _____ ______ _______ ______ (______)

A

federal, British North America Act (1867).

115
Q

The power to SOLEMNIZE marriage is given to the _____ by section ______ of the _____ ______ ______ ______ (____). What do they have jurisdiction over? (6)

A

provinces, British North America Act (1867).

1) matrimonial property
2) support of spouses and children
3) custody
4) succession
5) adoption
6) guardianship

116
Q

The Divorce Act is _______ constructed

A

federally

117
Q

Oxford Dictionary definition of family

A

the members of a household

118
Q

While ___% of single-male-parent families live in poverty, more than ___% of single-female-parent families do so

A

10% of single male-parent families

60% of single-female-parent families

119
Q

which sections of the Divorce Act (1968) petition for divorce

A

s. 3 and 4.

120
Q

what is s. 3 of the Divorce Act (1968)

A

s. 3 grants divorce on the grounds of;
1) adultery
2) sodomy
3) bestiality
4) rape
5) bigamy
6) physical/mental cruelty

121
Q

what is s. 4 of the Divorce Act (1968)

A

s. 4 granted divorce on the grounds of;
1) imprisonment
2) addiction to drugs w/o rehabilitation
3) failure to consummate the marriage
4) varying periods of living separate and apart

122
Q

s. 4(1)(e)(i) of the Divorce Act (1968)

A

states that a divorce can be granted after THREE YEARS of SEPARATION IF the petitioner had been “DESERTED” by the respondent.

123
Q

How does a petitioner get a divorce granted under s. 4(1)(e)(i) of the Divorce Act (1968) under “desertion?” (4)

A

They must prove

1) intention to desert
2) living separate and apart
3) lack of consent to the separation
4) no just cause for the separation

124
Q

s. 4(1)(e)(ii) of the Divorce Act (1968)

A

allows petition for divorce after living separate and apart for FIVE YEARS, with no req of establishing desertion

125
Q

From 1968 to the 1980’s, the number of divorces granted in Canada INCREASED. What were the leading causes why?

A

most common grounds were ADULTERY and MENTAL/PHYSICAL CRUELTY and 1/3 of the petitions were granted on the ground of SEPARATION

126
Q

what were the criticisms of the Divorce Act (1968)?

A

1) legislation was TOO restrictive. 3 and 5 year periods of separation were impractical
2) created lengthy conflict between parties
3) remained tied to the OUTDATED practice of ASSIGNING FAULT for marriage breakdown, which intensified instead of diminished the existing conflict between husband and wife

127
Q

Differences between the Divorce Act of 1968 and the Divorce Act of 1985

A

the 1985 one made the separation length from 3 years to 1.

128
Q

Why did the Divorce Act of 1985 shorten the separation period to one year?

A

1) to reduce the conflict between spouses
2) long enough to allow for second thought and avoid rash/hasty divorces
3) cohabitation will be allowed to resume in purpose of reconciliation without interrupting the period of separation.

129
Q

s. 8 of the Divorce Act (1985) states that a court will grant a divorce ONLY IF

A

1) lived separate and apart for at least one year
2) adultery
3) physical/mental cruelty

130
Q

What did the Canadian Bar Association urge the federal government to do in regards to grounds for divorce? (2)

Were their recommendations accepted?

A

They said the focus should be on WHETHER a marriage had broken down NOT WHY. They said the petition for divorce should be only based on;

1) if the couple have lived separately and apart for a period of one year
2) on proof satisfactory to the court that a marriage has irretrievably broken down

Their recommendations were NOT accepted. Current law maintains a focus on FAULT still.

131
Q

Adultery is an act that can’t easily be proven by direct evidence. It is a matter of _______ and ________

A

inference and circumstance

132
Q

shaw v. shaw (in relation to adultery)

A

Mrs. Shaw petitioned for divorce on the ground of cruelty. Her husband counter-petitioned on the ground of adultery. It was decided that there was no adultery committed and the counter petition was dismissed. (case was shown to express how hard it is to prove adultery)

133
Q

which divorce act was used to decide the case of Knoll v. Knoll?

A

Divorce Act of 1968

134
Q

In Knoll v. Knoll, the s. 3(d) of the divorce act (1968) was identical to s. 8(2)(ii) of the divorce act (1985). What was the legislation?

A

that the respondent has treated the petitioner with physical/mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses

135
Q

S. (J.G.) v. S. (W.O.J.) (in relation to cruelty)

A

she said he was cruel in ignoring her and withholding affection for the last five years and that he had sexual relationships with other women. She had pics but said she didn’t want to show them because they were “too disturbing.” but the court couldn’t tell when those pics were taken, and maybe if she knew before it was after the fact. Her whole argument seemed wonky seeing as they had to speculate which is something a court shouldn’t have to do. They shouldn’t have to wonder. She lost her petition.

136
Q

Explain the 3 C’s in this example.

Assault causing bodily harm.

A

Conduct: application of force
Circumstance: without consent
consequence: bodily harm

137
Q

3 key elements of self-defence

A

1) Reasonable perception of force
2) Defence of purpose
3) actions were reasonable under the circumstances

138
Q

What is the current Divorce Act’s purpose?

A

1) more guidance
2) asserting equality between spouses
3) basing support on the principle of need
4) assuming self-sufficiency of each spouse “within a reasonable period of time”

139
Q

defences that help mitigate your criminal offences (2)

A

1) mistake of fact

2) drunkenness (automaton) - only applies to property offences

140
Q

Defence of duress

A

committing an offence under COMPULSION by threats of a IMMEDIATE death or BODILY harm from a person that is PRESENT when the offence is committed (usually threatener is third party)

CRIM 135 (2 decks)

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