Law exam Flashcards
Anomie Theory
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
consensus theory
Universal definition of right and wrong that criminal law reflects
Criminal laws prohibit behaviours that society agrees are harmful
Actus Reus
Guilty act
Ex. the action of actually hitting another person
Must (for the most part) be voluntary
Exigent Circumstances
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)
Circumstantial Evidence
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)
Summary Convictions
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
Law and Morality
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
Notwithstanding Clause
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
Affirmation Action
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
Strain Theory
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
Habeas Corpus
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
Disclosure
A requirement that all relevant information be made available (e.g the Crown must provide the defence with all case-related information)
Leading Question
In trial a question that prompts or encourages the desired answer
Charge the Jury
to instruct the jury outlining the law that must be considered and applied to the facts in the case
Burden of Proof
On the Crown
need proof the accused is guilty
Proportionality Test
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
Accommodations
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).
Adverse-Effect Discrimination
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
Plea Bargainning
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
Arrest (what it is, ways it can occur, rights)
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
Restorative Justice
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)
Duress
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
Indictable offence
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
Preliminary Offence
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.
Lord’s Day Act
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
Bona Fide Occupational Requirement
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
Positivist School
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.
Socialization Theory
Contemporary theory in criminology
Suggests the key influences leading to criminal behaviour are found in upbringing, peer groups, and role models
Mens Reas
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
Intent
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
Extradition (+case)
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
Hybrid Offences
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
Recognizance
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
Cesare Beccaria
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
Karl Marx
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
R v. Morgentaler
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
Jeremy Bentham
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
Emile Durkheim
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
Chicago/Ecological School
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
Cesare Lombroso
Positivism
Studies cadavers of criminals
Argued that criminals had distinct physical features
Criminals are born not made
Kenneth Parks
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)
Community Standards Test (R v. Butler)
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
Daniel White
“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
R v. Collins
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.
R v. Burns (description+significance)
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.
R v. Brown
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.
R v. Hebert
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
R v. Feeney
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?
Explain the four fundamental freedoms and give examples on how each is applied
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.
The Criminal Code: most important functions are? How has the introduction of the Charter affected it?
-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
Victimless Crimes? What does it mean? Give some examples
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
What is the purpose of bail and how it works? Why is there so much scrutiny and criticism about the process? Ralph Hadley
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
Interrogation: Tactics police can and cannot use
- 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
Criminal Deviance-Evaluate the work and theories of criminologists and outline which of those theories best explains why crimes happen
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
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
- 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.
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
- 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
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.
- 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.
