Law Unit 3 Test (smaller)

Question 1

What does Mens Rea mean?

Answer 1

Mens Rea is “the guilty mind” deliberate intention to commit a wrongful act, with reckless disregard for the consequences, which means the intent of the crime, the mental capacity to do it, and the thought behind it.

Question 2

What does Actus Reus mean?

Answer 2

Actus Reus is “the guilty act” - the voluntary action, omission, or state of being that is forbidden by the Criminal Code, which means the act itself.

Question 3

Why do you need both elements to charge someone with 1st-degree murder?

Answer 3

You need both elements (men’s rea & actus reus) to charge someone with 1st-degree murder in order to see how much planning was actually involved to constitute 1st-degree, as it shows a well-planned men’s rea and you succeed with the action.

Question 4

What is the most basic reason for having criminal law?

Answer 4

For the Protection of the Public.

Question 5

The criminal code is overseen by which level of government?

Answer 5

The Federal government.

Question 6

What is the difference between Strict and Absolute liability offences? Give an example.

Answer 6

Absolute liability involves lower forms of crimes where you are simply charged and not given jail time (speeding ticket - the cop does not care why you are speeding, no men’s rea) and there’s no defence to it because you simply committed the act while strict liability involves bigger crimes (murder) where you can face jail time and there’s the defence of due diligence. For example, when a company polluted the duck’s habitat so they had to make the ducks stop going there but no matter what they did to make the ducks go away, they kept coming back.

Question 7

Give an example of 3 “Parties” to a crime.

Answer 7

Principle Actor: A person who actually commits a crime – that is commits the actus reus and has the men’s rea. Leader of the operation, if it was a murder ro a robbery this person would be carrying the gun.

Aider and Abettor: A person who helps and encourages the principal actor to carry out a crime. They are not in charge but if it was a robbery they would help the person getaway as the getaway driver.

Counsellor: A person who counsels or recommends that a person commit an office. Ie. The Cheerleader’s mom case.

Accessory After the Fact - A person who helps the principle actor and the aider and abettors after the crime has been committed, but were not present during the actual crime. Ie. If this was a robbery they would let them use their house to hide from the cops.

Question 8

What is conspiracy?

Answer 8

Conspiracy is an agreement between two or more people to carry out an illegal act, even if that act, does not actually occur. Basically, when you decide that you’re going to plan with someone else to commit a crime and this crime gets laid on with other charges.

Question 9

What is the highest court in Canada? Do they hear anything but appeals?

Answer 9

The Supreme Court does not hear anything other than appeals - you can appeal all the way up to the Supreme Court.

Question 10

The burden of proof in any criminal legal case is always on which side?

Answer 10

The Crown - the prosecution, because of Habeus Corpus. It is not the defense’s job to prove that the accused is innocent, that is already assumed, so the burden of proof is the idea that it is the Crown’s responsibility to prove beyond a reasonable doubt that the accused is guilty.

Question 11

Why does the court allow for cross-examination?

Answer 11

In order to test the validity and show the accuracy of the evidence testified by the witness on the other side. The lawyer from their side cannot do this as it would not be accurate, you go easy on you’re witness and then drill the other sides witness to point out holes in their story and put doubt in the judge’s mind.

Question 12

What is Hearsay?

Answer 12

When you repeat something in court that you heard from someone else that you didn’t actually witness. It cannot be used as actual evidence. An attorney may ask a witness only about what the witness saw or experienced firsthand, not about something he or she heard from a third party. If a witness said “Ann told me that she saw Tom stab Al with a knife” the opposing lawyer could object to hearsay evidence which is not admissible in court.

Question 13

What is the difference between Forensic and Physical evidence?

Answer 13

Physical evidence is any object, impression or body element that can be used to prove or disprove facts relating to an offence.

Forensic evidence is the use of biochemical and other scientific techniques to analyze evidence in a criminal investigation.

Thus, physical evidence is tangible such as a knife at the scene but forensic evidence is the analysis such as autopsies that show a murder victim’s time of death.

Question 14

When can the police arrest you without a warrant?

Answer 14

The police can arrest you without a warrant if:

if you have committed, are about to commit or are in the process of committing an indictable offence

if s/he needs to preserve the evidence

if s/he needs to prevent you from committing another offence

Question 15

What is a citizen’s arrest?

Answer 15

A citizen’s arrest is an arrest without a warrant by any person other than a peace officer. Private citizens have the power of arrest if:

1. if you have committed, or are in the process of committing an indictable offence
2. if you are escaping from the police
3. you are taking their taking property

If a private citizen arrests you, they must turn you over to the police ASAP and use reasonable force or risk being charged with assault.

Question 16

What are the 3 levels of offences and how do they differ from one another?

Answer 16

Summary:
- A crime that is considered less serious and carries a lighter penalty - Ie. speeding ticket
- Fined up to $2000 and/or imprisonment for up to 6 months
- Tried in provincial court
- No jury

Indictable
- A crime that is more serious than a summary conviction offence and carries a heavier penalty Ie. Murder, arson, assault, etc
- 2 years to life imprisonment
depending on the offence could be tried in Provincial or Superior Court
- Jury/No jury

Hybrid
- an offence that the Crown can try either as a summary or indictable offence
- always treated as indictable until charges are laid in court, then the court must decide how to treat the offence
- Provincial or Superior Court
- Jury/No Jury
- Starts as an Indictable but may get kicked down to a summary depending on mitigating factors (if they have a criminal record, etc) and the avalibility of the courts

Question 17

What does non-culpable homicide mean? Give 2 examples where it may apply.

Answer 17

Non-culpable homicide is a killing for which a person cannot be held legally responsible. Basically, you’ve killed someone but you’re not found guilty of it.
It applies when:
You’re a soldier in times of war
You’re self-defending

Question 18

What is the difference between 1st and 2nd-degree murder?

Answer 18

The amount of planning and Mens Rea involved.

Question 19

Why is trafficking drugs a worse offence than possession?

Answer 19

Trafficking drugs is a worse offence than possession because you are harming the public by distributing the drugs to others.

Question 20

What is the rule you need to remember if you are going to use self-defence as a defence?

Answer 20

You may only use the reasonable force necessary to defend against the attack otherwise you will be charged will assault because we do not have Castle laws in Canada.

Question 21

What are the goals of sentencing? Deterrence, retribution etc..

Answer 21

Punishment - To show that there are consequences, Society condemns your actions

Deterrence - To stop others from committing crimes and to prevent offenders from reoffending (recidivism)

Retribution - To award those who were wronged

Protection of the Public - Main concern, Protection of people, property, individual rights and public morals

Question 22

What are some of the sentences that can be issued by a judge? Closed custody etc..

Answer 22

Closed custody = penitentiary or jail

Open Custody = bush camp, farm camp, community residence

Intermittent Sentences = fewer than 90 days, can be served on week-ends

Question 23

What does Recidivism mean?

Answer 23

The rate of an offender re-offending and returning to a life of crime after serving jail time.

Question 24

What is the difference between Aggravating and Mitigating factors in a crime?

Answer 24

Mitigating factors in a crime can lessen the charges such as if the accused doesn’t have a criminal record.

Aggravating factors can increase the charges and the severity of the crime, such as if a person murdered someone and then mutilated the body.

Question 25

What is Plea Bargaining?

Answer 25

Plea Bargaining is when you plea out and form an agreement with the court to plead guilty, get a lesser charge, and then not have to attend an expensive trial.

Question 26

What is the difference between a concurrent and consecutive sentence?

Answer 26

Consecutive sentences are sentences back to back while concurrent sentences are ones served together and often, for life. In Canada we do not really use concurrent sentences, the USA does.

Question 27

What is Restorative Justice? How does it differ from the traditional Canadian Court System?

Answer 27

justice (also know as alternative justice): differs from traditional approaches because it focuses on using joint problem-solving to deal with the harmful effects of crime.

Differences
Courts 1. Crime is defined as a violation of rules as harm to the state
RJP 1. Crime is seen as harm done to victims and communities

Courts 2. Victim has limited opportunity to speak about his/her injury, loss and needs during the trial
RJP 2. Victim is central to the process of defining the harm and how it might be prepared

Courts 3. Offender, victim, and community remain passive and have little responsibility for a resolution.
RJP 3. Offender, victim, and community actively participate in the resolution that results from restorative forum

Courts 4. Community’s role is limited
RJP 4. Community is actively involved in holding offenders accountable, supporting victims, and providing opportunities for offenders to make amends

Courts 5. Restitutions are rare
RJP 5. Restitution is normal

Courts 6. Process is controlled and operated by the state and by professionals who may seem remote
RJP 6. Process is overseen by the state but is usually driven by communities

Courts 7. Offender is blamed, stigmatized, and punished
RJP 7. Offender is reintegrated into the community and his/her dignity is preserved.

Courts 8. Repentance and forgiveness are rarely considered
RJP 8. Repentance and forgiveness are encouraged.

Courts 9. Process assumes win-loss outcomes
RJP 9. Process makes win-win outcomes possible.

Question 28

Florida v William Kennedy Smith

Summary

Answer 28

• The Palm Beach rape case against William Kennedy Smith has shifted from media scrutiny to legal proceedings.
• Lead prosecutor Moira Lasch seeks to introduce evidence of Smith’s past similar assaults, invoking the controversial Williams Rule in Florida.
• Judge Mary Lupo must balance Smith’s fair trial rights with the prosecution’s use of the Williams Rule, allowing evidence of prior similar acts.
• Smith faces accusations of sexual battery on a Florida woman at the -Kennedy family estate, with Lasch’s office seeking testimony from three other women alleging past assaults.
• The Williams Rule, dating back to 1959, permits evidence of prior acts as circumstantial proof, akin to a federal rule of evidence.
• Defence attorneys are barred by the judge from disclosing the victimss past drug use and sexual history, while prosecutors emphasize her credibility and emotional distress.
• “That she is an unwed mother who has had three abortions, that she has used cocaine, and that she once belonged to a Palm Beach social set known for wild parties and heavy drug use.”

Question 29

Florida v William Kennedy Smith

Significance to Class Concepts

Answer 29

1. Evidence: The bad character and prior bad acts of the accused are not allowed UNLESS they show a pattern of behaviour (Raping three other women before)
2. Rape Shield Laws:
   - Sections 276 and 277 of the Criminal Code prevent defence attorneys from placing a rape victim’s previous sexual history in evidence during a rape trial
   - Section 276 – barring all sexual history except with the accused was struck down as unconstitutional and now there is an in-camera hearing to determine the relevancy of the victim’s previous sexual history
   - Section 273.2 disallowed belief of consent as a defence in rape cases – “no means no” provision – the defendant must make all reasonable attempts to have ensured consent

Question 30

R. v Hornick
Summary

Answer 30

• P Hornick and Rachel Aitcheson faced liquor charges related to their organization of a women’s bathhouse event in September 2000 although the women did put their name son a special event permit for the night.
• 5 Male police officers, responding to a criminal complaint, infiltrated the event, even though 2 undercover female agents were already present and investigating.
• The men went inside to see naked women - they counted how many topless women there were
• Judge Peter Hryn dismissed all charges, citing officers’ breach of constitutional rights and likening their behaviour to “visual rape.”
• Hryn emphasized the women’s right to a safe space for sexual exploration, free from male intrusion.
• The defence argued that male officers’ presence infringed upon the privacy of hosts and guests.
• The case revealed that male officers had planned to enter the bathhouse, indicating a desire to see naked women.
• Outcome: The verdict sparked discussions on police conduct and privacy rights, leading to complaints against the police and calls for an apology. The police commissioner briefly apologized just because they had to The LGBTQ+ community did not accept it because it wasn’t meaningful as it was not supported by any change in the way the police treat gay communities.
• In 2005, a class-action lawsuit and complaint to the Ontario Human Rights Commission resulted in a $350,000 settlement, part of which covered legal fees and part of which was donated to charities of the complainants’ choice.

Question 31

R. v Hornick

Significance to Class Concepts

Answer 31

Police Search Powers under the Charter:
Police conduct and thus search powers are governed by the charter and being that the officers raided the bathhouse with the intention of seeing naked women as there were already 2 female officers present and undercover in a female safe space, they mostly violated their section 2 and section 8 rights by invading the bathhouse.
- Section 2b) - Freedom of Expression - The lesbian women exploring their sexuality could not express themselves because men were there in a female safe space.
- Section 8: Search and Seizure - no search warrant, no reason for five male cops to be there.

Other Charter Sections:
Section 1: Limits - The police officer’s gross misconduct went beyond reasonable limits as set out by the charter in a free and democratic society.
Section 2: Freedom of Expression - The lesbian women exploring their sexuality could not express themselves because men were there in a female safe space.
Section 7: Safety and Security - By intruding on a female safe space, these men endangered the safety and security of the women.
Section 8: Search and Seizure - no search warrant, no reason for five male cops to be there
Section 12: No cruel or unusual punishment - being looked at by men could be arguably cruel and unusual punishment.
Section 15: Equality Rights - Not being treated equally due to their sexual orientation

Overall Breach of Privacy: “Though the male officers did not see Aitcheson and Hornick unclothed, their lawyer Frank Addario said that, as hosts of the event, their privacy rights were violated because male officers did see their naked and partly naked guests” + “I find in this case there was a reasonable expectation of privacy vis a vis men in general and male police officers,” said Hryn “I find the search, in this case, was analogous to a strip search…. If patrons were taken to a police station, they would have been searched by other female officers.”

Detainment: When the detective was stopping the host of the event at her door and preventing her from running the bathhouse event he was detaining and entraping her as she was not arrested at that point.

Question 32

R. v Moore

Summary

Answer 32

• Douglas Donald Moore, a serial pedophile, was given parole in June 1997 after completing a 16-month sex offender treatment program.
• The parole board deemed Moore rehabilitated, citing his understanding of his crimes, sobriety, acknowledgment of his sexuality, and claimed disinterest in sex with children.
• Moore subsequently hanged himself in April 2004 at Maplehurst Correctional Complex after then being charged with sexually assaulting three boys in a foster home and becoming a suspect in the slaying of three young men.
• Despite Moore’s release, the parole board had previously deemed him highly likely to re-offend due to his extensive criminal history, including sexual assaults on multiple boys in Ontario and British Columbia.
• Moore underwent treatment at the Regional Treatment Centre in Kingston Penitentiary, focusing on therapy and relapse prevention.
• He was initially denied release during treatment but later impressed the parole board with his progress.
• The case prompted calls for legislative changes regarding public notification of sex offenders’ presence in communities and retroactive inclusion in the sex offender registry.
• Debate surrounds the effectiveness of sex offender treatment, with some experts skeptical of its efficacy, citing the manipulative nature of psychopathic offenders like Moore.

Question 33

R. v Brown
Summary

Answer 33

• Decovan Brown, a young black man, was driving an expensive car on an urban highway on November 1, 1999.
• He was stopped by police for driving slightly above the speed limit in an area known for common speeding practices.
• Brown was subjected to a roadside screening test and arrested under s. 253 of the Criminal Code for driving with excessive blood-alcohol levels.
• At trial, Brown’s lawyer argued that his rights under s. 9 of the Charter, freedom from arbitrary detention, were violated due to racial profiling.
• Brown claimed he was stopped not because of his driving but due to racial stereotypes about young black men driving expensive cars.
• The defence presented evidence challenging the credibility of the arresting officer, supported by reliable independent evidence and Brown’s testimony.
• Throughout the trial, the judge frequently intervened, displaying a favourable bias towards the arresting officer and skepticism towards Brown’s claims.
• The trial judge’s remarks during cross-examination and sentencing suggested bias and an inclination to dismiss Brown’s allegations of racial profiling.
• Despite the defence’s arguments, Brown was convicted.
• Brown appealed his conviction to the Ontario Superior Court of Justice, where Justice Trafford overturned the conviction due to a reasonable apprehension of bias on the part of the trial judge.
• Justice Trafford emphasized the difficulty in proving racism directly, highlighting the importance of impartiality and sensitivity to allegations of racial profiling.
• The Ontario Court of Appeal upheld Justice Trafford’s decision, acknowledging evidence supporting racial profiling and dismissing the Crown’s appeal..

Question 34

R. v Moore

Significance to Class Concepts:

Answer 34

The Effectiveness of Alternative Sentencing:

• I do not think that Douglas Donald Moore should have received parole because Moore was already repeating his actions - in 1986 he sexually assaulted 4 boys (sentencing him to probation), then in 1989 he was sentenced to 4 years for attacking a 12-year-old, then he was released in 1991, violated his probation and raped a 14-year Toronto-area boy, this earned him 4 more years, and then in 1995 he was sent to a treatment centre until 1997 when he was released and then sexually attacked three more boys.
• While I’m sure that Moore was able to lie his way into appearing to have improved at the treatment centre, this is not someone who should have even been at a treatment centre, he should have been incarcerated for a long time.
• Clearly, if prior to the treatment centre he had already committed three separate acts of sexual assault, sexual attack, and rape, he was not going to improve.
• I do not understand why Moore consistently received such light punishments - he was only put on probation, he was only sentenced for 4 years which became 8, and then he was sent to a treatment centre which eventually granted him parole.
• In my opinion, he shouldn’t have just been denied parole but he should have been incarcerated at a penitentiary and the public should have been better protected.
• However, in different cases, I do believe alternative sentences are viable and useful, I just think that in a case where we saw repeated behaviour even prior to the treatment centre, Moore should have been treated as the threat that he was and is to society because ultimately the courts failed to protect the public in this case.
• Alternative sentences should only be placed when a certain behaviour has not occurred more than once, otherwise, they do not recognize the clear character of an individual who is going to struggle to change.

Question 35

R v. Brown

Significance to Class Concepts

Answer 35

Racial Profiling: R. v. Brown illustrates racial profiling, where individuals are targeted based on race rather than behaviour. Brown’s arrest while driving an expensive car reflects a systemic racial bias in law enforcement.

Judicial Bias: The trial judge’s actions, including skepticism towards Brown’s claims and urging Brown to apologize to the officer, demonstrate judicial bias. This bias influenced the trial’s fairness and contributed to Brown’s conviction being overturned on appeal, highlighting the importance of impartiality in judicial proceedings.

Question 36

R v Bernardo
Summary

Answer 36

• “Scarborough rapist” - disappeared at one point, then teen girls started disappearing down in St. Catharines, Toronto in the late 1990s
• Later they find out through good police work, DNA, etc that a couple is doing this - a duo of Serial killers, take his DNA, connect him back to the Scarborough raping, but he moved - they sexually assaulted and killed a younger sister and two young girls
• The wife was asked to testify against the husband, and she did, said she was a victim of domestic abuse - and told the cops that she had nothing to do with this, but she wanted a plea bargain, got a 10-year sentence and she took it immediately
• It comes to light that everything was videotaped after she had gone through the court system, showing that she was participating in what was going on - Bernado said he did the raping but she did the killing
• But now it’s a situation of double jeopardy, she cannot be tried again even though she was super involved
• This got huge press - good-looking white people in a couple male and female that are serial killers are rare - leading to a publication ban because it might sully the jury pool

Question 37

R v Bernardo

Significance to Class Concepts

Answer 37

The Idea of an Impartial Jury & Publication Bans:
- Judges will often impose a publication ban to prevent the jury from having access to information not presented in front of the jury
- The Criminal Code provides a ban on any publication in any newspaper or broadcast with respect to any portion of the trial at which the jury is not present.

In the Bernardo case, this was particularly difficult for two reasons:
- The American media refused to follow the ban – and most -Canadians have ready access to American news
- Most jurors had already had access to a great deal of information before the trial