Law exam

Question 1

Anomie Theory

Answer 1

Proposed by Emile Durkheim
As society moved from rural to urban, traditional bonds that regulated behaviour weakened
State of isolation “anomie” - people would turn to crime living in a big city

Question 2

consensus theory

Answer 2

Universal definition of right and wrong that criminal law reflects
Criminal laws prohibit behaviours that society agrees are harmful

Question 3

Actus Reus

Answer 3

Guilty act
Ex. the action of actually hitting another person
Must (for the most part) be voluntary

Question 4

Exigent Circumstances

Answer 4

An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence.
Disclosure - A requirement that all relevant information be made available (e.g the Crown must provide the defence with all case-related information)

Question 5

Circumstantial Evidence

Answer 5

Indirect evidence that allows an inference to be made about the quilt of the accused (e.g something belonging to an accused at the crime scene)

Question 6

Summary Convictions

Answer 6

Less serious offence
Ex. public nudity, tresspassing

Refer to chart in notes
Shorter lamination perion
Private person can prosecute if Crown does not want to lay charges
No preliminary hearing
Tried in provincial court
No jury trials
Penalty limited to fined up to $2000 and/or 6 months in prison

Question 7

Law and Morality

Answer 7

POSITIVISTS
Morality and Law are not together

Role of gov’t limited to preventing harm to others and the community

Criminal law is unfair in application, ineffective and expensive

It is too difficult to determine whose morality should be used to determine wrong and right

Rules are what causes society to function best

Laws are to preserve society not their morals

NATURALISTS
Morality and Law are together

Society is defined by its moral and value system

Private matters also affect society and must be considered by the law

Moral views can change but that should not dissuade law makers from considering moral issues in creating laws

Small groups have some of the biggest impacts as they change the feelings of the public

Society has a right to determine what is morally acceptable and use law to express its views formally

Question 8

Notwithstanding Clause

Answer 8

Provinces can pass a law that is inconsistent with or violates the Carter of Rights and Freedoms for a period of 5 yrs
Section 33

used very rarely

Question 9

Affirmation Action

Answer 9

Giving people equal opportunity and equal pay
Recognizes that the market mechanisms which control the work people do ad how they are paid will never, by themselves, bring about conditions of equality
Harvard and other Universities used this policy
Designed to increase the representation of groups that have suffered discrimination

Question 10

Strain Theory

Answer 10

Contemporary theory in the perspectives of criminology
Argues people commit crimes when they believe they cannot achieve their desires and goals through legitimate and legal means
The stress of goals of acquiring wealth (success and power), and these goals (education, economic resources) are denied to the economically disadvantaged

Question 11

Habeas Corpus

Answer 11

To be informed properly, retain counsel, have validation of the detention
Habeas Corpus is a royal prerogative writ involving a petition made to the sovereign, in Canada in the form of her Superior Court Justices, that if granted would compel a prison official to “produce the body” and justify authority for why a person is being detained

Question 12

Disclosure

Answer 12

A requirement that all relevant information be made available (e.g the Crown must provide the defence with all case-related information)

Question 13

Leading Question

Answer 13

In trial a question that prompts or encourages the desired answer

Question 14

Charge the Jury

Answer 14

to instruct the jury outlining the law that must be considered and applied to the facts in the case

Question 15

Burden of Proof

Answer 15

On the Crown

need proof the accused is guilty

Question 16

Proportionality Test

Answer 16

Is the law rationally connected to its purpose
Does the law minimally impair the infringed right
Do the positive effects of the law outweigh the negative effects of the infringement

A test used to determine whether the limitation of rights under s. 1 of the Charter is justifiable.

PART TWO OF THE OAKES TEST

Question 17

Accommodations

Answer 17

The adaptation of an existing requirement or condition by an employer to enable an employee to carry out the essential aspects of a job (e.g making a work environment accessible for people with disabilities).

Question 18

Adverse-Effect Discrimination

Answer 18

Ex. refuses to hire a person because they are a woman
Making the criteria for the job only capable for a person of that gender
Direct discrimination is easier to prove

Question 19

Plea Bargainning

Answer 19

An arrangement between crown and defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence or an agreement to drop other charges

Question 20

Arrest (what it is, ways it can occur, rights)

Answer 20

Formal arrest is made when a law enforcement officer has reasonable and probable grounds to believe a person has or is about to commit an indictable offence

Detention can occur in teh following ways
Physical restraint
Psychological (made to believe they had no choice to remain)
Giving a demand or direction (legal consequences if they refuse)

Rights
Anyone who believe their arrest is unreasonable or unlawful can be brought infront of a judge to have the validity of the detention determined

Question 21

Restorative Justice

Answer 21

The concept that true justice is concerned with more than simply the punishment of offenders; it strives to meet victims’ needs (e.g assistance with medical care, counselling, rehabilitation)

Question 22

Duress

Answer 22

A controversial Defence
Type of Defence

Makes the argument that an accused was forced to commit a criminal act under the “threat of personal injury or death”
Involves excusing criminal behavior on the basis of overriding social good
Cannot be used if the crime causes serious harm such as murder

Question 23

Indictable offence

Answer 23

More serious offence
Perjury, arson,murder

No limitation period on the time when the offence may be prosecuted
Private person may prosecute with the permission of the Crown, but it is almost always the Crown that prosecutes
Preliminary trial may be held
Tried in a provincial or superior court
Accused can choose to be tried by a judge or a judge and jury
Heavier penalties allowed, up to life in prison
Formal arrest must be made for this crime

Question 24

Preliminary Offence

Answer 24

A judicial hearing that is used in serious criminal cases to determine whether the evidence assembled by the Crown against an accused person is sufficient to proceed with a trial.

Question 25

Lord’s Day Act

Answer 25

Sundays used to be no one could work
Is discrimination because not all people follow Christianity

R v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
Landmark decision

Question 26

Bona Fide Occupational Requirement

Answer 26

Provisions deemed necessary in order to perform a job safely and efficiently
If not then the provision is considered discriminatory and should not be valid

Bhinder and the CDN Human Rights Commision v. CDN National Railway Company [1985]
1988 Baltej Singh Dhillon v. RCMP

Question 27

Positivist School

Answer 27

Focused on biological and psychological factors to explain criminal behaviour

Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed.

Question 28

Socialization Theory

Answer 28

Contemporary theory in criminology

Suggests the key influences leading to criminal behaviour are found in upbringing, peer groups, and role models

Question 29

Mens Reas

Answer 29

Guilty mind

Different types of mental states for different criminal offences
Intent, knowledge, criminal negligence, recklessness, wilful blindness

Must be present for a crime to have been committed

Question 30

Intent

Answer 30

A person intended/ wanted to commit a crime

Two types of intent: general and specific

GENERAL
To commit a wrongful act for its own sake, with no other purpose or motive

SPECIFIC
Involves intents in addition to the general intent to commit a crime

Question 31

Extradition (+case)

Answer 31

Legal surrender or delivery of a fugitive to the jurisdiction of another state, country, or government to face trial

RULES OF EXTRADITION
Double criminality
Crime in both
countries
Reciprocity
If country A
extradites a person
to country B then
country B will do the
same in the future
Not enough that a country requests extradition: evidence of guilt must be provided
Speciality
Accused is charged
only with the crime
that is specified

DENIED
If they are also a citizen of the country they are in (country they fled to not where crime is committed)

The accused has already been convicted and served a penalty, if the accused has been acquitted, or if there are concerns about the fairness of the trial that the accused would face

United States v. Burns

Question 32

Hybrid Offences

Answer 32

Between summary and indictable
Seriousness varies according to the circumstances of the offence

The Crown uses the specific facts of each case to decide if to prosecute the case as a summary offense or as an indictable offense

Question 33

Recognizance

Answer 33

Written promise to appear in court or pay a fine
Can be done with or without a surety
A person who agrees to pay money if accused does not show

Question 34

Cesare Beccaria

Answer 34

Key Thinker

In classical criminology for perspectives on criminology

Humans are driven by self-interest, but are rational in their decisions
Gov’t should act on behalf or all citizens
Citizens are prepared to give up some freedoms in exchange for protection
Existence of law should act as a sufficient deterrent for crimes
Punishment should be proportionately greater than enjoyment received by disobeying

Question 35

Karl Marx

Answer 35

German philosopher and economist
Wrote the Communist Manifesto
Argues capitalism as a form of economic and social reproduction is inherently flawed and will ultimately fail

Question 36

R v. Morgentaler

Answer 36

Henry Morgentaler

Canadian doctor who took his fight to the Supreme Court in 1988 for women to have the right to have an Abortion
Used the defence of necessity by arguing that necessity compelled him to provide abortions for women, despite the laws in place
He could perform the operation safely and did not want women getting hurt by trying to abort the baby themselves or through sketchier means

Question 37

Jeremy Bentham

Answer 37

Positivist law philosopher
Also in classical criminology

Law should be based on practical and realistic things rather than the idealistic moral view
Only way to measure law is to the extent of which it helps the community and individual members of it

Laws are a means of social control and have nothing to do with morality
Based his view on theory of utilitarianism

Law should ensure the greatest good for the greatest number of people
Social contract between government and people, each with clear responsibilities

government to make clear what was illegal and what punishment should arise
Citizens to follow laws, as created

Question 38

Emile Durkheim

Answer 38

Proposed the Theory of Anomie

Argued that as a society moved from rural to urban, traditional values and bonds that regulated behaviour were weakened
People would turn to crime living in a big city, no longer restrained by norms of society

Question 39

Chicago/Ecological School

Answer 39

Argued that criminal behaviour was encouraged or fostered in certain environments
Communities that suffered from high rates of poverty and social disintegration were more likely to condone criminal activity than affluent areas

Question 40

Cesare Lombroso

Answer 40

Positivism

Studies cadavers of criminals
Argued that criminals had distinct physical features

Criminals are born not made

Question 41

Kenneth Parks

Answer 41

Used defence of automatism

He stabbed his in-laws while he was sleepwalking
Said he acted involuntarily

Actus Reus of a criminal act must be voluntary
- If someone shoots someone while sleepwalking, he may not be criminally liable

• E.g. Kenneth Parks case 1992- The Supreme Court upheld the acquittal of Parks whose defense was that he was sleepwalking when he stabbed his mother in law to death
• His defense was that he acted involuntarily (automatism)

Question 42

Community Standards Test (R v. Butler)

Answer 42

Butler challenged obscenity laws by charter

Reasonable limits put on freedom of expression
Out of this case came the community standard of tolerance test

Is this obscene to the community for the community it is in, is there some artistic merit to it

Question 43

Daniel White

Answer 43

“Twinke defence”
Diminished
responsibility

Dan white was upset he lost his job, kills the mayor and another city employee

Lawyers argued addiction to junk food resulted in too much sugar and caused white to suffer from depression

The murder charge was reduced to manslaughter

Question 44

R v. Collins

Answer 44

DESCRIPTION
She was charged with with possession of heroin for the purpose of trafficking. She and her husband had been currently under surveillance by two officers. Collin’s husband left a pub and was arrested, searched, and found to be in possession of heroin. Police noticed Collins sitting at another table in the pub with a friend and approached her fearing she may attempt to swallow the drugs she was in possession of. One officer used the choke-hold procedure method which is a technique used to prevent a suspect from swallowing any drugs. Collins did not have drugs in her mouth, the heroin was in her hand, contained in a green balloon.

SIGNIFICANCE
R v Collins [1987] 1 S.C.R. 265 1987 SCC 11 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24(2) of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter.

Question 44

R v. Burns (description+significance)

Answer 44

DESCRIPTION
Sebastian Burns and Atif Rafay, Canadian citizens, were wanted in Washington State on three counts of aggravated first-degree murder if Mr. Rafay’s parents and sister (1994)
They were apprehended in British Columbia as a result of an RCMP sting operation
Under the Extradition Treaty between the United States and Canada, a fugitive may be extradited with or without assurances that the death penalty not be imposed
The Supreme Court of Canada overruled this agreement
Said it violated section 7 of the Charter
Deprived the accused of their rights of liberty and security of a person

SIGNIFICANCE
Atif Rafay’s mother, father and sister were found murdered in their home in Washington, U.S.(they were 18 at the time). Burns and Rafay were both from Canada and instead of goin to the funeral went back to Canada. Canadian authorities (RCMP) used the Mr. Big tactic to get a confession (19 now). Due to the use of this tactic and the confessions gained from it they were both found guilty in the States and given three consecutive life sentences for aggravated first degree murder.

Significance:
can the Mr. Big tactic be used as evidence in court, is it a coerced confession.

Question 45

R v. Brown

Answer 45

R v Brown, 2022 SCC 18, is a decision of the Supreme Court of Canada on the constitutionality of section 33.1 of the Criminal Code, which prohibited an accused from raising self-induced intoxication as a defence to criminal charges.

Question 46

R v. Hebert

Answer 46

Was arrested and charged with robbery
After speaking with a lawyer he decided he did not want to make a statement to the police
He was placed in a cell with an undercover police officer, and he was tricked into making statements that incriminated him
at the trial, they ruled his rights protected in the Charter of Rights and Freedoms had been violated
at the appeal the court ruled none of his rights were breached and the police officer did not violate the principles of justice
it was then appealed to the Supreme Court where the court held that admitting the statements made into evidence would make the trial unfair

SIGNIFICANCE
He said he did not want to make a statement to the police, however when placed in a cell with an undercover police, he was tricked into making statements that incriminated him in the robbery.
Issue = his rights under sections 7 and 10(b) had been violated.

S. 7
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.

S. 10(b)
Imposes a duty upon the police to provide information and access legal aid lawyer if needed, including help in contacting them

Question 47

R v. Feeney

Answer 47

DESCRIPTION
police went to Feeney’s trailer and entered after they knocked and no one answered, they had no arrest warrant
police woke Feeney up, saw blood on his shirt and arrested him, advising him of his right to counsel.
he did not contact a lawyer at the time police continued to question him
once he was brought to an RCMP detachment he was unsuccessful in contacting his lawyer
he then spent 8 hours in a holding cell before the police began questioning him again even though he had not gotten in contact with his lawyer yet
during that questioning, he admitted to stealing from Boyle
the police obtained a search warrant to search Feeney’s house
a court convicted Feeney of 2nd-degree murder
court of appeal unanimously dismissed the appeal so Feeney appealed to the Supreme Court

SIGNIFICANCE
Landmark Case

Violation of the right to counsel and improper arrest and search

should the police have entered Feeney’s trailer?
should the police have read Feeney his rights once the woke him up?

should the police have questioned Feeney even though he had not spoken to his lawyer yet at the RCMP detachment?

Question 48

Explain the four fundamental freedoms and give examples on how each is applied

Answer 48

FREEDOM OF RELIGION
Challenges usually involve 2 situations
You believe your rights have been infringed upon
You have evidence of it
EX.
R v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
Lord’s Day Act
Discrimination because not all people follow Christianity

FREEDOM OF EXPRESSION
This law has been challenged under hate law sections of the Criminal Code
SECTION 318, it is a criminal act to “advocate or promote genocide” —killing of members of a group based on colour, race, religion, ethnic origin or sexual orientation.
Section 319 deals with publicly stirring up or inciting hatred against an identifiable group based on colour, race, religion, ethnic origin or sexual orientation.
EX.
R v. Keegstra [1990] 3 S.C.R.
Charged under section 319

PEACEFUL ASSEMBLY
While Canadians have enjoyed the right to demonstrate their discontent with many government actions, their freedom to join together in mass protest demonstrations is limited by their ability to keep the gathering peaceful and lawful.

PEACEFUL ASSOCIATION
The Supreme Court of Canada has been called upon to interpret the meaning of this under s. 2 of the Charter in the field of labour law. The court has upheld the right of individuals to join together in groups, but it has not allowed the section to be used as a guarantee of the right to strike or the right to conduct collective bargaining as a part of labour relations.
EX.
Collective bargaining- a term used in labour law to describe the formal process of negotiating conditions of employment between an employer and a union.

Question 49

The Criminal Code: most important functions are? How has the introduction of the Charter affected it?

Answer 49

-Under statute law - law passed by elected representatives
-People who committed criminal acts are charged under the criminal code
-Is the main source of Criminal Law in Canada
It describes offences that are considered crimes, as well as punishments for the crime
- When someone is charged with a crime it sets a precedent how people will be charged in the future
-Worded precicisely so that citizens are not wrongfully arrested and to obtain a proper conviction
-Comes from Napoleonic Code and Common Law of England
-It changes over time - it a reflection of changing values
INTRO OF CHARTER
-People are more protected, their rights and freedoms
-Some criminal law violate the charter
-If a law violates the Charter then it can be declared no force or effort since the Charter has the authority of constitutional supremacy

Question 50

Victimless Crimes? What does it mean? Give some examples

Answer 50

A victimless crime is an activity that is performed by one or more consenting people, that causes no harm, injury or violation to anyone outside of the people performing the activity. One example of a victimless crime is smoking marijuana at home by yourself.

EXAMPLES
- Drug Abuse, Public drunkenness, Prostitution, Gambling

Question 51

What is the purpose of bail and how it works? Why is there so much scrutiny and criticism about the process? Ralph Hadley

Answer 51

After a bail hearing, you may get bail, which is a court order that lets you stay in the community while your case is in the court system. Usually, there will be conditions attached to your bail—and these are rules that must be followed exactly or you might be sent back to jail to wait for your next court date.

• Criminal justice experts and defence lawyers say the bail system already has problems with bias: Black and Indigenous people are overrepresented and have difficulty getting bail, as do people suffering from mental health conditions.
• Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required

Question 52

Interrogation: Tactics police can and cannot use

Answer 52

• The purpose of interrogation is to get the criminal to confess or uncover the truth. When you are arrested by the police, you may be taken to an interrogation room for questioning. Police officers often interrogate suspects in crimes to get them to admit guilt and help them uncover other suspects. Interrogations involve complex legal technicalities but suspects still have rights during this time.
• Officers are prohibited from using physical or psychological coercion when conducting police interrogations. A confession or evidence that results from coercive tactics is inadmissible at trial. The police, for example, may not use torture techniques, threats, drugging, or inhumane treatment during an interrogation.
• Another tactic the police could utilize is to verbally and emotionally intimidate you. They could yell at you or throw papers at you to scare you. The police could also keep you in the interrogation room for hours or throughout the night to wear you down until you confess

Question 53

Criminal Deviance-Evaluate the work and theories of criminologists and outline which of those theories best explains why crimes happen

Answer 53

Contemporary Theories of Criminal Deviance

SOCIAL PSYCHOLOGICAL PERSPECTIVE
- Study relationships between individuals and people
- How “regular” people can commit atrocious crimes
- Stanley Milgram
Interested in how Nazi’s were able to commit horrible acts of genocide
How people could do this and just be following orders
Moral Disengagement
- Displacement of responsibility and dehumanizing the victim
Bandura
- person can justify torture by losing empathy for the victim while convincing himself that the victim lacks human qualities

STRAIN THEORY
- people commit crimes when they believe they cannot achieve their desires and goals through legitimate means

SOCIALIZATION
- Key influences leading to criminal behaviour are found in upbringing, peer groups, and role models

BIOLOGICAL TRAIT THEORY
- Some human traits such as intelligence, personality, chemical and genetic makeup may predispose people to engage in criminal behaviour
- EX.
- Poor diet, influence of hormones, exposure to drugs/alcohol in the womb
NEUROPHYSIOLOGICAL THEORY
- Study of brain activity and how neurological dysfunctions are connected with criminal activity

Question 54

Ontario Human Rights Commission-Explain the process needed to hear a complaint, Cite some examples of Human Rights Commission, Cons and Pros of the Commission

Answer 54

• Complaint is received, record the complaint, acknowledge the complaint, assess the complaint and seriousness, decide what action to take

PROS
​​The Ontario Human Rights Code focuses on prohibiting discrimination in five protected social areas: employment; housing; goods, services and facilities; contracts; and vocational associations. It develops policies and provides targeted public education, monitors human rights, does research and analysis, and conducts human rights inquiries.

CONS
It is often hard to get a complaint into the commission. There was a high level of complaints in Ontario which may mean they are not doing enough to address every single complaint, along with the needs of people of colour and with disabilities.

Question 55

In looking at common criminal defences (i.e. automatism), as well as newer criminal defences (i.e.diminished responsibility) used by lawyers today to justify the accused escaping criminal responsibility, are lawyers making “a living helping guilty people go free based on technicalities and ridiculous defences”? Or are the right to any defence necessary to eliminate injustices in our society? Look at the Defences Chart you did in class for support

Answer 55

• If you are accused of a crime, you have the right to a fair trial to determine whether you are innocent or guilty. This is an internationally recognised human right. Fair trials help establish the truth and are vital for everyone involved in a case. They are a cornerstone of democracy, helping to ensure fair and just societies, and limiting abuse by governments and state authorities.

TYPES OF DEFENCES
Mistake of Fact, Mistake of Law, Intoxication, Mental Disorder, Automatism, Self-defense, Provocation, Entrapment, Necessity, Duress

Question 56

Explain whether or not the introduction of the Charter of Canadian Rights and Freedoms in 1982, which gave the courts more power than ever before has been beneficial or detrimental to Canadian society. Cite examples or cases to support your position.

Answer 56

• The Charter protects the rights and freedoms of every single individual in Canada. However, the Charter is especially large and covers many topics and so it tends to conflict itself. Seen in the case of speaking rights where, freely speaking about a topic can lead to hate speech which can be a criminal offence.
• Weaknesses of the Canadian Charter of Rights and Freedoms include: Limited protection for economic and social rights: While the Charter protects civil and political rights, it provides limited protection for economic and social rights such as the right to housing, healthcare, and education.
• The Canadian Charter of Rights is extremely important to the citizens of Canada as it has given important meaning to the protection of our rights. It makes sure that minorities and vulnerable groups are protected through equality rights.