Law test 3 Flashcards
Ambit of the offence
Prohibits Double jeporady
- The protection against someone being tried multiple times for the same or similar charge following an acquittal or conviction
Vitiated by fraud
- In sexual assult, fraud will remove the validity of consent
- Occurs when an objectively dishonest act has the signifficant risk to cause the person consenting serious bodily harm
Sanctions
- Canada imposes sanctions in response to:
- Breaches of international peace and security that have resulted in an international crisis
- Gross and systematic human rights violations
- Acts of significant corruption
- Any sanctions made by the UN
- Sanctions include trade barriers, asset freezes, travel bans, arms embargoes and restrictions on financial transactions
Actus Reus
- The guilty act
Mens Rea
- The guilty mind
Interpretive presumption
- Presumes that the text within an Act takes precident
- The literal meaning of the text is to be followed unless outweighed by other factors
Requisite Intention
- Required intention
- The list of elements that must be proven for conviction
- Must be proven that it was done intentionally
Absolute Liability
- Responisbility without fault or negligence
- Absolute crimes can be punished without a finding of mens rea (guilty mind)
Strict Liability
- Certain activities are so risky that compensation is awarded without the need to establish the defendants fault
Due Diligence
- The ability to demonstrate that a person did what could be expected under their circumstances to satisfy a legal requirement
Private Harm Principle
- Harm principle says that people should be free to act however they want unless their actions hurt someone else
Public Harm Principle
- Harm principle states that power can only be rightfully exercised over members of a community against their will in order to prevent harm to others
Offence Principle
- Expressions which intend to inflict psyschological offence are morally equivilent with physical harm
Legal Paternalism
- Justifies state coercion to protect individuals from self inflicted harm or to guide them, whether they like it or not, toward their own good
- Ex. Requiring motorcycle helmets
Legal Moralism
- Laws that represent the morals of society
- Used to require or prohibit behaviour based on societies morals
- Ex. Marriage restrictions
Atavism
- Explains criminal behaviour as a result of primitive/genetically inherited traits in individuals
- The theory states that those traits were acceptable in early/more primitive societies but are now redundant in modern societies, leading to criminal behaviour
Anthropometry
- The theory that people with certain physical characteristics are more likely to commit crimes
- Characteristics: Primitive, ape-like
What is crime
- An action that constitutes an offence that can be prosecuted by the state and is punishable by law
The Criminal Code
- Includes definitions of most of the criminal offences that the Parliament of Canada has enacted
The controlled drugs and substances act
(S.C. 1996, C. 19)
- Legislation for the single convention on narcotic drugs and substances and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic substances
Judge-Made Criminal Law
- Common law as pronounced by judges on a case by case basis
The purpose of criminal law
- Preventing crime
- Protecting the public
- Supporting victims of crime, their families and witnesses
- Holding people responsible for their crimes
Causes of crime theories
Classical Theories, Positivist Theories (biological; FASD), psychological or social determinants (Durkhiem theory of anomie, Ecological theory), Marxist theory, Consensus Theory and conflict theory (Merton’s strain theory)
Positivist
- Self interest, pleasure/reward
- Punishment should be greater than the reward of doing the crime
Biological
- Criminals are born as such
- Atavism (Primal insticts lead to crime)
- The appearance of people can distinguish criminal status (primal appearances) (Anthropometry)
- Insane criminals: Weren’t born criminals, had a developmental upset that led them to become
- FASD (Fetal alcohol spectrum disorder)
- Have poor reasoning and judgement skills
Psychopaths are they born or made?
- Born; brain defect etc.
Elements of an Offence
Crime = Actus reus + mens rea
Absolute vs. Strict Liability Offences
- Circumstances where only Actus reus (guilty act) need to exist (no Mens rea) (guilty intentions)
- Such as speeding and polluting
Charter of Rights and Freedoms Legal Rights (Sections 7 through 11)
Section 7
- Everyone has the right to life, liberty and security of the person
- The right not to be deprived exept when necessary
Section 8
- Right against unreasonable search and seziure
Section 9
- Everyone has the right not to be arbitrarily detained or imprisoned
Section 10
- People have the right to challenge the lawfulness of an arrest or detention
Section 11
- Rights that apply to people charged with an offence
Continuity of Evidence
- Should be lead where there is potential evidence before the court, by direct or circumstantial evidence or by interference, that may raise doubt as to the continuity
Case officer
- Determines if a person is granted citizenship
- Reviews the application and makes a determination
Writ of habeas corpus
- Used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment or detention is lawful
Discretion
- The ability to judge between right and wrong
Warrant
- Executed by the OPP
- Search warrant
- Arrest warrant
Summary Conviction
- A less serious crime with a less serious punishment
- Max fine is less than $5,000
- Max jail time is 2 years
Hybrid offence
- Most criminal offences are hybrid offences
- The Crown uses specific facts of each case to decide if it’s a summary offence or an indictable offence
Search incidental to arrest
- The police have a reason based on a valid law enforcement purpose to conduct that search, and that the reason is reasonable
- The search results in an arrest
Appearance notice
- Legal document that states a criminal charge and the date and time of the court data
- Issued if the suspect is not believed to be a threat to society and are LIKELY to show up at a bail hearing
- Issued only in summary convictions/less serious indictable offences
Summons
- If the accused doesn’t respond to an arrest warrant
- A summons will be delievered by a sheriff/deputy
Promise to appear
- Similar to an appearance notice
- Generally issued at the station once you have been processed and formally charged
Recognizance
- A promise made by the accused to appear and respond to criminal charges
Judicial interim release
- A hearing where a judge decides if an accused can be released from custody while awaiting their trial or appeal
Inferior jurisdiction
- The lower provincial and territorial courts
- Their presiding officers are appointed by the province or territory of which they sit
Superior jurisdiction
- The Superior Court of Justice
- Has the power to try and indictable offence under the criminal code of canada
- Generally only tries the most serious offences
Preliminary inquiry
- 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
Pre-trial conference
- A meeting between a judge of the Superiour Court, a Crown Attorney & lawyers for the accused person
- They discuss whether the case will go to trial or be resolved through a plea agreement
Disclosure
- An accused person is garanteed the right to the disclosure of all relevant information in the possession or control of the Crown with the exception of privileged information
Impact of the Charter on Police powers
- Unless you are under arrest, the police only have a limited power to hold you
- (Right not to be arbitrarily detained)
The power to arrest
(Police, citizen, charter rights)
- The owner of a piece of property may arrest a person without a warrant
- Anyone other than a police officer who arrests someone without a warrant will then deliver the person to a police officer
- A police officer may arrest without a warrant only if the person they believe to be committing an offence is within their territorial jurisdiction
- A police officer can’t arrest someone without a warrant for an indictable offence
Power to search
- Must be reasonable
- Authorized by the law itself to be reasonable
OR - The manner in which the search is conducted is reasonable
Ensuring the accused appearance in court
- Notice of arrest
- Officer identification
- Advise the accused that they are under arrest
- State the offence
- Reading the caution to the accused (Caution 1. Right to council) (Caution 2. Right to remain silent)
- Physically touching the accused signifies that they’re in custody
- Warrrant is issued
- If they can’t be found for a warrant, a summons is issued
Bail and Show Cause Hearing
- A hearing where a judge or justice decides if an accused can be released from custody while awaiting their trial or appeal
Method of Trial
(Judge, Judge and Jury)
Jury:
- People come and watch and make their verdict based on evidence presented
Judge:
- You’re only convincing the judge
Acquitted
- Not guilty
Affirmative defence
- A defense that brings up new facts or issues not in the Complaint that, if true, would be a legal reason that the plaintiff wouldn’t win, or would win less
Case to meet
- Because of right to remain silent, the Crown must establish a “Case to meet” before there can be any expectation that the accused will respond
Challenge for cause
- Screens for potential biases in juries
- Whether the accused will have a fair trial
Culpability
- If someone is Culpable then they are guilty
Direct verdict
- A ruling entered by a trial judge after determining that there is no legally sufficient evidentary basis for a reasonable jury to reach a different conclusion
Duress
- Illegally excersized force to make someone perform an act
Empanelling a jury
- To officially select and assign a jury
- The name of each juror who is sworn will be kept apart until the juror is excused or the jury gives its verdict
General intent offences
- An actual intent to perform an act but without wish for the consequences that follow
Hearsay
- When evidence is not first hand
- Ex. If John was told by Jennifer that Lisa stole jewlery. Because Lisa didn’t directly tell John and John didn’t see Lisa commit the crime, it’s hearsay
Jury Array
- A large number of potential jurors summoned
- The actual pannel will then be chosen through process of elimination or something else
NCR acquittee
- “Not Criminally Responsible”
- When someone is found to be mentally incapable of forming the intent to commit the crime
Negativing defence
- A defence that negates one or more of the essential elements of the prosecutions case
Specific intent offences
- Have a hightened mental element
- The intention to commit the act was there, however with an ulterior purpose in mind
- There was intention to produce a result, but not the one that occured
Trier of fact
- A person or group of people who determine the factual issues in a legal proceeding
- This is the jury
- If there is no jury then it is the judge
Voir Dire
- A seperate hearing in which the trier of law determines whether evidence is admissible and can potentially be entered into evidence in the trial
Criminal Trial Principles
Specific Allegation
- A statement made without giving proof that someone has done something wrong
Criminal Trial Principles
Independent and Impartial Adjudication
- Independent adjudicatiors resist or reject any outside pressure or influence and are impartial (unbiased) to the case
Criminal Trial Process
Motions
- Motion on consent (both parties agree about an issue)
- Motions without consent (both parties don’t agree)
- Urgent motions with notice to the other party
And - Urgent motion without notice to the other party
Criminal Trial Process
Examination-in-chief
- The prosecutor calls their witness first
- Also known as a direct examination
Jury Selection
Challenge for cause:
- The selection procesure where jurors who are presumed to be impartial are challeged for impartiality
Stand by
- Jurors are asked to standby for further consideration
Peremptory challenges (No longer allowed)
- The exclusion of a juror without the need for any reason or explanation
Evidence
Opinion
- Direct evidence outlining what the expert witness believes or infers in regard to fact, distinguishing personal knowlege from the facts themselves
Defences (Negativing Defences)
Mistake of fact
- When the judge asks the jury to consider if the accused may have believed that they had consent or were in the right
Defences (Negativing Defences)
Mental Disorder
- No one is criminaly responsible for an act committed or omission made if they were suffering from a mental disorder that rendered the person incapable of appreciating the wrongness of the act
Defences (Negativing Defences)
Automatism (Insane and Non insane)
- A state of impared consiousness where a person is able to act but are not in control of their actions (insane is obvious, non insane is probably drugs or alcohol)
Defences (Negativing Defences)
Intoxication
- Similar to automatism
- they don’t have control over their actions
Defences (Affirmative Defences)
Self-Defence
- legal as long as defensive actions are reasonable
- If the actions were unreasonable then bye bye thats a cimrew
Defences (Affirmative Defences)
Compulsion
- When a person commits an offence while under compuslion of a threat made for the purpose of compelling him or her to commit
- Similar to duress
Defences (Affirmative Defences)
Duress
- some one’s forcing you to do crime aaaaaaaaaaaaaa
Absolute discharge
- Lowest level adult sentence one can get
- Immediate discharge with no conviction
- Factiors that increase the severity or culpability of a criminal act
- Will generally lead to a harsher penalty
Conditional discharge
- similar to absolute; a finding of guilt is made but no conviction is registered
- Difference: there are conditions that the offender must follow (probation)
De Facto
- An action taken without strict legal authority but still legally recognized as valid
- Ex. A language widely used throughout the country and by the government, even if the country has no official language
Garnisheeing Wages
- When money is legally withheld from your paycheck and sent to another party
- Max 50% of wages
Mitigating Circumstances
- A partial excuse for the crime
- Age
- Mental or emotional state
- Developmental disability
- Lack of prior criminal record
Plea barganing
- An agreement between prosecution and the defendant where the defendant agrees to plead guilty for some dropped charges or a lighter sentence
Recidivism
- When a convicted person offends again
- Repeating criminal
Rehabilitation
- Trying to get criminals back into society
Resotrative Justice
- Seeks to repair harm by providing an oppertunity for those harmed and those who take responsibility for the harm to communicate their needs after a crime takes place
Sentencing
Judicial Discretion
- A judge’s power to make a desicion based on their individual evaluation, guided by the principles of law
- Gives court immense power
Sentencing
Statutorily perscribed Minimum
- Found in the CCC
- Can include imprisonment, prohibitions or fines
- the minimum sentence perscribed for a particular crime
Sentencing
The sentence hearing
- Where the offender is given a sentence by a judge
- May take place right after an offender has been found guilty, or may take days/weeks/months
Sentencing
The pre-sentence report
- Provided by a probation officer for a judge
- Gives the judges information after interviewing the offender and deducing the best sentence
Sentencing
Victim impact statement
- Written statement that describes the physical or emotional harm that the victim of an offence has suffered
- This must be taken into account when sentencing an offender
Sentencing reform
Section 718 of the Criminal Code’s Six Sentencing Objectives
- Sets out the purpose of sentencing and what factors a court must balance when considering sentencing
Sentencing options
Intermittent Sentences
- A jail sentence that the offender serves in chunks of time instead of all at once
- Ex. only on the weekends
Sentencing options
Suspended sentences
- A judge convicts you but suspends sentencing you and instead releases you on conditions in a probation order
