Law Unit 4 Test Flashcards
1
Q
What does Mens Rea mean?
A
Mens Rea is a 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.
2
Q
What does Actus Reus mean?
A
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.
3
Q
Why do you need both elements to charge someone with 1st-degree murder?
A
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.
4
Q
What is the most basic reason for having criminal law?
A
For the Protection of the Public.
5
Q
The criminal code is overseen by which level of government?
A
The Federal government.
6
Q
What is the difference between criminal negligence and recklessness?
A
When you’re criminally negligent you don’t know you’re doing something wrong and it leads to a crime while during recklessness you know you’re doing something wrong and it leads to a crime.
7
Q
What is the difference between Strict and Absolute liability offences? Give an example.
A
Absolute liability involves lower forms of crimes where you are simply charged (speeding ticker, 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.
8
Q
Give an example of 3 “Parties” to a crime.
A
- Principle Actor: A person who actually commits a crime – that is commits the actus reus and has the men’s rea.
- Aider and Abettor: A person who helps and encourages the principal actor to carry out a crime.
- Counsellor: A person who counsels or recommends that a person commit an office.
9
Q
What is conspiracy?
A
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 it gets laid on with other charges.
10
Q
Is Motive the same as Intent?
A
No, Motive is the reason to do the act while Intent is the decision to go through with the act.
11
Q
What is the highest court in Canada? Do they hear anything but appeals?
A
The Supreme Court of Canada and no, they don’t.
12
Q
The burden of proof in any criminal legal case is always on which side?
A
It is on the side of The Crown (Prosecution).
13
Q
Why does the court allow for cross-examination?
A
In order to test the validity and show the accuracy of the evidence testified by that witness.
14
Q
If you go to the police station do you have to give them a blood sample if they ask for it?
A
No, unless they have a warrant.
15
Q
Do you have to give a breathalyzer test?
A
Yes, if you refuse you can be charged with failure to give a breathalyzer and you’ll have to anyway.
16
Q
How many levels of police are there in Canada?
A
There are 4: Indigenous Police, Municipal, Provincial, Federal
York Region, OPP, RCMP, and some reserves have their own band of police
17
Q
What is the difference between Forensic and Physical evidence?
A
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.
18
Q
What does DNA stand for?
A
Deoxyribonucleic acid.
19
Q
When can the police arrest you without a warrant?
A
- 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
20
Q
What is a citizen’s arrest?
A
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:
- if you have committed, or are in the process of committing an indictable offence
- if you are escaping from the police
- 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.
21
Q
What are the 3 levels of offences and how do they differ from one another?
A
Summary: A crime that is considered less serious and carries a lighter penalty. 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, 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 the person (if they have a criminal record, etc)
22
Q
What does non-culpable homicide mean? Give 2 examples where it may apply.
A
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
23
Q
What is the difference between 1st and 2nd-degree murder?
A
The amount of planning and motive involved.
First-degree murder is a killing that is planned and deliberate, is the result of a contract, causes the death of a peace officer, or is committed during another serious crime while second-degree murder is any murder not classified as first-degree murder.
24
Q
What is the difference between robbery and theft?
A
Robbery involves the use of force (violence) while theft does not.
25
Why is trafficking drugs a worse offence than possession?
Trafficking drugs is a worse offence than possession because you are harming the public by distributing the drugs to others.
26
Why can non-insane automatism be a defence?
Because it’s a condition in which a person acts without being aware of what he or she is doing. An external factor caused you to have no control over what you are doing, such as a case where a man killed his inlaws while sleepwalking.
27
What is the rule you need to remember if you are going to use Self-Defence as a defence?
That you may only use the reasonable force necessary to defend against the attack.
28
What is Double Jeopardy?
Double Jeopardy is the legal doctrine that an accused person cannot be tried twice for the same offence.
29
How can you use entrapment as a defence?
When you only committed the charged crime because the police officer persuaded you to do it.
30
What does Recidivism mean?
To return to a life of crime after serving jail time.
31
What is the difference between Aggravating and Mitigating factors in a crime?
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.
32
What is Plea Bargaining?
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.
33
What is the difference between a consecutive and concurrent sentence?
Consecutive sentences are sentences back to back while concurrent sentences are ones served together and often, for life.
34
What does YCJA stand for? Why are juveniles treated differently than adults when it comes to crime?
YCJA stands for the Youth Criminal Justice Act and they’re treated differently because they have a strong chance at being rehabilitated back into society.
35
Intent
A state of mind in which someone desires to carry out a wrongful action, knows what the results will be, and is reckless regarding the consequences.
36
Motive
The reason a person commits a crime.
37
Wilful Blindness
A deliberate closing of one's mind to the possible consequences of one’s actions.
38
Due Diligence
The defence that the accused took every reasonable precaution to avoid committing a particular offence.
39
Homicide
The killing of another human being, directly or indirectly.
40
Infanticide
The killing of a newborn infant by the child’s mother.
41
Colour of Right
The honest belief that a person owns or has permission to use an item.
42
Mental Disorder
Defined in the Criminal Code as a “disease of the mind.”
43
Automatism
A condition in which a person acts without being aware of what he or she is doing.
44
Provocation
Words or actions that are insulting enough to cause an ordinary person to lose self-control.
45
Alibi
A defence raised by the accused claiming that he or she was somewhere else when the offence was committed.
46
Legal Definition of Crime:
- Only the federal government has the authority over criminal law
- Provincial offences are not crimes but can be quasi-criminal in nature (careless driving, drinking under age)
47
Subjective Intent:
- Accused’s actual intention or knowledge of the effects of his/her conduct
- Recklessness – if you can see that a behaviour may be dangerous and continue with it anyway, your conduct is reckless and therefore you have criminal intent
- Willful Blindness – if you are suspicious but do not ask questions because you do not want to know that a crime has occurred you have subjective intent.
48
Objective Intent:
- What a reasonable person would have understood, perceived or foreseen in the circumstances
- Usually associated with Civil Law – Negligence
49
Strict Liability
- Do not require proof of Mens Rea
- Usually found in statutes other than the Criminal Code
- Not criminal in the true sense but exists for general protection of public and results in fine/imprisonment
- Merely to commit the offence renders the doer guilty, the intent has no relevance
- There is a defence to strict liability cases (Reasonable Care Defence) i.e. Environmental Abuses
50
Absolute Liability
- Reasonable care is not accepted as a defence
- Mens Rea not necessary to be proven
- Since absolute offences admit no defence if the Crown proves Actus Reus exists, the Supreme Court of Canada decided such offences cannot provide imprisonment i.e. Speeding Tickets
51
Name the legal terms for the two elements that must be present in most cases for an action to be considered a criminal offence under Canadian law. Define both terms in your own words.
Actus Reus: The actual act being committed that is against the Criminal Code.
Mens Rea: The intention needed that shows willfulness to commit a wrong act.
52
What is the main difference between a strict liability offence and an absolute liability offence?
Strict liability can use the defence of Reasonable care while absolute liability can not use Reasonable care as a defence.
53
What is a crime?
An act or omission of an act that is prohibited and punishable by federal statute.
54
What is criminal law?
The body of laws that prohibit and punish acts that injure people, property, and society as a whole.
55
What is the criminal code of Canada?
The Criminal Code of Canada is a federal statute that contains the majority of the criminal laws passed by parliament.
- Lists the offences and sentences to be imposed
- The procedure to follow when trying those accused of crimes
- Reflects the social values of the majority of Canadians
56
How did John A. MacDonald contribute to the development of the Criminal Code?
John A. MacDonald contributed to the development of the Criminal Code by believing that a single set of criminal laws for the entire country would eliminate some of the confusion and unfairness that existed previously.
57
What is section 91(27) of the Constitution?
Section 91(27) of the Constitution grants the federal government the power to exercise the legal authority to make criminal laws for Canada.
58
What are the actus reus and the men's rea?
Actus Reus: “The guilty act” - the voluntary action, omission, or state of being that is forbidden by the Criminal Code.
Mens Rea: A deliberate intention to commit a wrongful act, with reckless disregard for the consequences.
59
What is the difference between general and specific intent?
General intent is the desire to commit a wrongful act, with no ulterior motive or purpose while specific intent is the desire to commit one wrongful act for the sake of accomplishing another.
60
Define motive.
The reason a person commits a crime.
61
Who can be defined as “criminally negligent”?
Someone who:
a) In doing anything, or
b) In omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons
62
What is “recklessness”?
Consciously taking an unjustifiable risk that a reasonable person would not take.
63
A friend offers to sell you a used phone at a super cheap price. A second student was recently complaining about how someone stole their phone. You buying the phone could be an example of?
Wilful Blindness (Possession of Stolen Property)
64
What is a strict liability offence?
An offence that does not require men's rea but to which the accused can offer the defence of due diligence.
65
What is an absolute liability offence?
An offence that does not require men's rea and to which the accused can offer no defence.
66
There are three levels of offences:
Summary Conviction Offences
Indictable Offences
Hybrid Offences
67
Summary Conviction Offences
- A crime that is considered less serious and carries a lighter penalty
- Fined up to $2000 and/or imprisonment for up to 6 months
- Tried in provincial court
- No jury
68
Indictable Offences
- A crime that is considered more serious than a summary conviction offence and carries a heavier penalty
- 2 years to life imprisonment
- depending on the offence could be tried in Provincial or Superior Court
- Jury or No jury
69
Hybrid Offences (Dual procedure Offences)
- 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 or No Jury
70
Principal Actor:
A person who actually commits a crime – that is commits the actus reus and has the mens rea.
71
Aider & Abettor:
A person who helps and encourages the principal actor to carry out a crime.
72
Counsellor:
A person who counsels or recommends that a person commit an offence.
73
Accessory after the fact:
A person who receives, comforts, or assists anyone who has been a party to an offence.
74
Attempt:
Intending to commit a criminal act but failing to carry out his intent, the person is still recognized as a danger to society.
75
Conspiracy:
Agreement by 2 or more people to carry out an unlawful action.
76
Two fundamental principles of the Criminal Trial Process:
1. An accused person is innocent until proven guilty.
2. Guilt must be proven beyond a reasonable doubt
77
Beyond a reasonable doubt is
a standard of proof whereby a defendant’s guilt must be proven to the extent that a reasonable person would have no choice but to conclude that the defendant did indeed commit the offence.
78
Burden of proof:
Refers to the Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt. It is not up to the accused to prove innocence.
79
The Provincial Court, Criminal Division:
- Provincial court is the lowest level of Canadian courts.
- Judges are appointed by the provincial government and cases are tried by judge alone.
- They have the jurisdiction to hear summary conviction offences, less serious crimes that carry a lighter penalty, and certain indictable offences, more serious crimes that carry a heavier penalty.
80
Superior Provincial Court:
- They are the highest criminal and civil courts in the provinces and have a trial and appeal division.
- Has jurisdiction in both criminal and civil matters, beyond the lower courts.
- Judge and jury unless the accused and the provincial Attorney General consent to trial by judge alone.
81
The Federal Court System
- A court that hears cases involving the federal government and consists of a trial and appeal division.
- Also hears appeals from federally appointed boards, commissions and administrative tribunals.
82
Supreme Court of Canada
- highest appeals court in Canada, which also deals with constitutional questions referred to it by the Federal government.
- Consists of a chief justice and eight justices, all of whom are appointed by the federal government. Three come from Quebec, three from Ontario, two from the western provinces and one from the Atlantic Provinces.
83
The Crown’s Opening Statements:
- The Crown presents its case before the defence it has the burden of proof
- It identifies the offence committed, summarizes the evidence against the accused, and outlines the way the Crown will present its case.
84
Examination of Witnesses:
- Direct Examination - The first questioning of a witness to determine what he or she observed about the crime. (The Crown will ask each witness to tell what he or she observed about the case.)
- Cross-Examination - The second questioning of a witness to test the accuracy of the testimony, performed by the opposing attorney. (Used to convince the jury that there are contradictions in the witness’s testimony and weaken the Crown’s case.)
85
Examination of Witnesses:
- Direct Examination - The first questioning of a witness to determine what he or she observed about the crime. (The Crown will ask each witness to tell what he or she observed about the case.)
- Cross-Examination - The second questioning of a witness to test the accuracy of the testimony, performed by the opposing attorney. (Used to convince the jury that there are contradictions in the witness’s testimony and weaken the Crown’s case.)
86
The Defense Responds:
1. Motion for Dismissal - A request by defence counsel that the judge dismisses the charges against the defendant. (After the calling of the witnesses, if the Crown has failed to prove guilt beyond a reasonable doubt.)
2. Directed Verdict - A decision by the judge to withdraw the case from the jury and enter a verdict of not guilty. (If the judge agrees with the defence.)
3. The trial continues if the judge does not dismiss the charges and the accused pleads not guilty.
4. Defence - Opening Statement
5. Defence - Direct Examination
6. Rebut - To contradict evidence introduced by the opposing side. (After the defence has presented new evidence.)
7. Surrebuttal - A reply to the opposing side’s rebuttal. (After the Crown’s rebut.)
87
The Rules of Evidence:
- The Crown or the defence may object to questions asked by the opposing attorney or to answers provided by witnesses.
- The judge rules whether the evidence in a question is “admissible” and may be allowed by the court.
88
Leading Questions:
Suggests to the witness a particular answer.
89
Hearsay Statements:
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.
90
Opinion Statements:
Defence counsel or the Crown cannot ask a witness to give an opinion about a matter that goes beyond common knowledge unless the witness is a recognized expert in the field.
91
Immaterial or Irrelevant Questions:
An immaterial or irrelevant question has no connection with the matter at hand; as a result, it is considered inadmissible.
92
Non-Responsive Answer:
When the Crown or defence counsel asks a question to a witness and receives a reply that doesn’t really answer the question.
93
Direct Evidence:
Testimony given by a witness to prove an alleged fact.
94
Circumstantial Evidence:
Indirect evidence that leads to a reasonable inference of the defendant’s guilt.
95
Character Evidence:
Evidence that is used to establish the likelihood that the defendant is the type of person who either would or would not commit a certain offence.
96
Electronic Surveillance
The use of an electronic device to overhear or record communications between two or more people.
97
Wiretapping
Wiretapping is the interception of telephone communications, generally at a point some distance away from the target premises.
98
Polygraph Test:
A polygraph or "lie detector" is a machine that allows a skilled examiner to detect physical signs that indicate deception on the part of the person being tested.
99
Voir Dire:
A mini-trial in which jurors are excluded while the admissibility of evidence is discussed.
100
Summary of the Case:
After all the testimony has been given, each counsel presents a summary of the case (closing arguments).
101
Charge to the Jury:
The judge's explanation to the jurors of how the law applies to the case before them.
102
The Verdict:
- Once the verdict has been reached, it is read in open court.
- Both the Crown and the defence have the right to ask that the jury be polled- each jury member must stand and confirm his or her agreement with the verdict.
- Hung jury: a jury that cannot reach a unanimous verdict and is consequently dismissed from the case
- A jury's verdict must be unanimous.
103
Appeals:
- The right to appeal is an important safeguard in Canada's adversarial system. A notice of appeal must be filed within a short period (30 days).
- The appeal is then heard in an appeals court, which has the authority to review the decision and make one of the following rulings: a) to affirm the lower court's decision; b) to reverse the lower court's decision; or c) to order a new trial.
- In a criminal case, either the defence or the Crown can appeal a decision it considers improper. Either side can also appeal the sentence given to a defendant found guilty.
- The side that files the appeal is called the appellant; the side that responds to the appeal is called the respondent.
- An appeal is generally heard by a panel of three or five judges.
- Attorneys use the trial transcript, exhibits from the trial, and legal arguments prepared for the appeal.
The appeals court then decides if errors have been made.
- The court's decision does not have to be unanimous; the majority decision is sufficient.
104
Examples:
RCMP
OPP
York Regional Police
Indigenous Police Force
Name of Government Level or type;
Federal Police
Provincial Police
Municipal Police
First Nations Government
105
What three responsibilities of the RCMP do you feel best illustrate the need for a federal police force?
- Customs and Excise: International Smuggling, taxes on cigarettes and alcohol
- Immigration: human trafficking, passport fraud, terrorism
- International Liaison and Protective Services: Protection for important people I.e.: Queen
106
Municipal Police?
Have jurisdiction over policing of towns and cities
107
How are local police forces funded?
By taxpayers
108
What happens when a municipality is too small and/or cannot afford to fund a police force?
The OPP will be used.
109
Why do some First Nations choose to have their own police force?
- The goal of such forces is to offer services that are sensitive to the needs of the community
- Happens in large reservations
- First Nations and RCMP have a dark history
- This way the police will cater to the needs of everyone
110
Where are the powers of the police found in Ontario’s laws?
Section 42 of the Police Act.
111
Is this constitutionally embedded or statute?
Statute.
112
What three things does a police officer have to do to indicate an arrest?
- Officer identifies themselves
- Identifies that the person is under arrest
- Touches the person to indicate that they are now in custody – not required if the person is willing to go with the officer
113
What is the difference between Bench Warrant and Arrest Warrant?
A Bench Warrant is issued by a judge while an Arrest Warrant is issued by a justice of the peace. Bench Warrant shows thing like their unpaid speeding tickets, Arrest Warrants shows things like real crimes.
114
A police officer can arrest without a warrant if:
1. If you have committed, are about to commit, or are in the process of committing an indictable offence.
2. If they need to preserve the evidence.
3. If they need to prevent you from committing another offence.
115
A police officer cannot arrest without a warrant if:
1. You have committed a summary offence.
2.If they have no reason to believe that you will not follow an appearance notice.
116
True or false - “Citizen’s Arrest” is real.
You must turn them over to the police ASAP.
117
What’s the difference between “reasonable grounds” and the evidence needed for conviction?
- Reasonable and probable grounds are what allow you to arrest someone with suspicion when evidence is what proves they’ve done that
- Police must have “reasonable and probable grounds” to arrest a person without a warrant
- Suspicion is not enough – but the Supreme Court has determined that these grounds do not require the same amount of evidence as would be required for a conviction
118
Homicide:
The killing of another human being, directly or indirectly.
119
Culpable homicide:
A killing for which the accused can be held legally responsible.
120
Non-culpable homicide:
A killing for which a person cannot be held legally responsible.
121
Murder:
The intentional killing of another human being.
122
First-degree murder:
A killing that is planned and deliberate, is the result of a contract, causes the death of a peace officer, or is committed during another serious crime.
123
Second-degree murder:
Any murder not classified as first-degree murder.
124
Infanticide:
The killing of a newborn infant by the child’s mother.
125
Manslaughter:
Any culpable homicide not classified as murder or infanticide.
126
Provocation:
Words or actions that could cause a reasonable person to behave irrationally or lose self-control.
127
Assault:
Threatened or actual physical contact without consent.
128
Assault with a weapon or causing bodily harm:
Injuring a person in a way that has serious consequences.
129
Aggravated assault:
Wounding, maiming, disfiguring, or endangering the life of the victim.
130
Sexual assault:
Touching of a sexual nature that is not invited or consensual.
131
Sexual assault with a weapon, threats to a third party, or causing bodily harm:
A form of sexual assault that involves the use of weapons, threats, or physical injury.
132
Aggravated sexual assault:
Sexual assault that involves wounding, maiming, disfiguring, or endangering the life of the victim.
133
Suicide:
Suicide or attempted suicide has not been a crime in Canada since 1972. However, anyone who counsels a person to commit suicide or aids or abets a person to commit suicide is guilty of an indictable offence.
134
Dangerous operation of a motor vehicle:
To convict an accused of dangerous operation of a motor vehicle, the Crown must prove that the safety or lives of others were endangered because the driver failed to exercise the same care a prudent driver would have exercised under the same conditions.
135
Failure to stop at the scene of an accident:
Anyone who is involved in a motor vehicle accident and does not stop, offer assistance, and give his or her name and address is presumed to show intent to escape civil or criminal liability. Commonly known as the “hit and run,” this is a hybrid offence punishable by a term of up to 5 years.
136
Impaired driving:
It is an offence to drive or to have “care or control” of a motor vehicle while the amount of alcohol in the bloodstream exceeds 80 milligrams in 100 millilitres of blood.
137
The Crime Scene:
Is a rich source of physical evidence and must be secured to avoid tampering or lost evidence.
138
When arriving at a crime scene the officer must:
- arrest the suspect
- assist the injured
- eliminate potential risks
- determine and secure the boundaries of the crime scene
139
What rate does blood cool at?
2 degrees per hour.
140
What begins a few hours after death?
Rigor Mortis begins a few hours after death.
141
For how long will the body be stiff?
For 8 – 12 hrs the body is stiff.
142
What is lividity and when does that appear?
8hrs – purple marks appear aka Lividity. The blood pools in your body.
143
What are ocular indicators?
When your eyes start to go filmy white because you don’t have water going through it.
144
Why are these forensic measures important to investigators?
Time of death, the position of the body, if someone has moved the body, shows how far along the body is in terms of decomposing.
145
When do maggots hatch?
Maggots – Hatch after 24 hrs.
146
When do blowflies hatch?
Blowfly- 17 days after death.
147
When do houseflies hatch?
House Fly – 47 days.
148
Why can blood help identify victim/suspects?
Blood Contains DNA (Deoxyribonucleic acid) – can identify victims and suspects.
149
What will blood do after a few minutes?
Blood clots- within a few minutes blood will begin to clot or gel, and bloodstains can indicate the Time of Death.
150
What is blood splatter, and how do investigators use it?
Blood spatter is the splatter of blood in a crime scene and can help investigators recreate crime scenes - shows the way someone died, where the blood was pumped out, what weapon was used, the direction of where someone went after causing blood, how many times you were hit, etc.
151
What are five things blood can tell us?
- Type of instrument that caused death
- Direction from which the object struck the victim
- Position of the victim, assailant, by standards
- Location and movement of the victim and assailant during the attack
- Number of blows or gunshots the victim received
152
Who is in charge of weird deaths?
A coroner is in charge of all unexpected, suspicious or violent deaths (including suicides) as well as deaths occurring in institutions including old age homes and jails.
153
Fingerprint:
a mark left behind after a fingertip touches an object.
154
Visible fingerprint:
the print formed when a fingertip is coated in blood, grease, or some other substance, it is visible to the naked eye.
155
Latent fingerprint:
the print formed by natural oils and perspiration on the fingertip: it is invisible to the naked eye.
156
Impressions:
Patterns or marks found on surfaces and caused by various objects.
157
Chain of Custody:
The witnessed, written record of the people who maintained unbroken control over an item of evidence.
158
Blood Spatter:
Blood spatter is the splatter of blood that appears in some crime scenes.
159
DNA:
Bodily fluids or other bodily elements that may transfer from the suspect to the victim. For example, blood, semen, mucus, sputum, hair, and skin.
160
Search:
Police have no inherent right to search; this right is given under common and statute law.
161
Police can search you if:
- You are under arrest
- They think you have a weapon
- Can search your property (except your house) if you are arrested
162
Search Warrant:
- Required to search a dwelling house
- Can also be used for vehicles and offices
- Warrantless search seen as unreasonable
- To get a warrant, an officer swears an “information” explaining why the search is needed
- If urgent, warrants can be granted over a phone or fax
163
When? (Warrants)
- Warrants must be executed between 6 a.m. and 9 p.m. on the day issued, unless otherwise specified
- If the police have a warrant to search your house you must let them, if you refuse they can use as much force as required
164
CCRF - Section 8:
- Everyone has the right to be free from unreasonable search or seizure
- Seizure: taking of a thing from a person by public authority without that person’s consent
- Privacy: since search involves issues of liberty, Section 7 might also offer protection of rights
165
Sections 9 and 10 of the Charter protect your rights when arrested:
You have the right:
- To be dealt with fairly, not arbitrarily
- To know why you are in jail
- To get a lawyer – you must be told of this right and the availability of legal aid and duty counsel. You must be allowed private access to a telephone as soon as possible. Once you have indicated that you will not talk without your lawyer, questioning should cease.
166
Why? (Arrest)
- To know why you were arrested
- To test the legality of arrest through a writ of habeas corpus – be brought before a judge quickly - includes concepts of innocence until your guilt has been proven beyond a reasonable doubt by the prosecuting attorneys and bail
167
Constitutionality: (Detainment)
- In R. v. Therens (1985), the Supreme Court held that detention occurs anytime you believe that you are being detained by the police
- The police cannot simply read you your rights; they must make sure that you understand them.
168
R.I.D.E. and Reasonable Limits:
Reasonable limits have been placed on your section 10 rights, especially in the case of roadside stops by the police. You must provide a breathalyzer sample at a road check but do have the right to counsel if taken to the police station for a second test.
169
Mental Disorder:
Mental disorder is defined in the Criminal Code as a “disease of the mind.” An accused person who suffered from a mental disorder at the time the offence was committed cannot be held criminally responsible because he or she would have been unable to form the men's rea of the offence. The accused may have committed the offence but is not criminally responsible because of a mental disorder
170
Fitness to Stand Trial:
An accused person is presumed fit to stand trial unless the court is convinced that the accused is suffering from a mental disorder at the time the trial is scheduled to take place. Such a disorder may mean that the accused is unable to understand the nature of the trial proceedings, to understand the consequences of the proceedings, or to instruct counsel.
171
Automatism:
A condition in which a person acts without being aware of what he or she is doing.
172
Not-insane automatism:
a form of automatism caused by an external factor.
- For example, a sleepwalker gets out of bed, goes to the kitchen, and prepares a sandwich. This person is in a state of automatism because his or her actions were not guided by a conscious state of mind. Other examples are severe concussions or taking the wrong medication. Automatism negates the actus reus of a crime because someone in such a state does not act voluntarily.
173
Insane Automatism:
A form of automatism caused by a mental disorder. A person suffering from insane automatism will be found not criminally responsible due to a mental disorder.
174
Intoxication:
the condition of being overpowered by alcohol is drugs to the point of losing self-control. Generally, intoxication is not a defence to a crime but there are exceptions.
- Intoxication may be a defence to crimes of specific intent but not to those of general intent.
175
General intent:
is when someone commits a wrongful act for its own sake.
176
Specific Intent:
occurs when one commits a wrongful act for the sake of committing another.
177
Self-Defence:
The use of reasonable force to defend against an attack.
178
Battered Women’s Syndrome:
When women in abusive relationships react by killing their spouses. The effects of prolonged spousal abuse were used to advance the justification of self-defence.
179
Dwelling house:
Any building or other structure that is occupied on a permanent or temporary basis. A person is allowed to defend his or her dwelling from any unlawful entry and to remove a trespasser if he or she has entered.
180
Necessity:
A defence stating that the accused had no reasonable alternative to committing an illegal act.
181
Compulsion or Duress:
A defence in which the accused person is forced by the threat of violence to commit a criminal act against his or her will.
182
Provocation:
Words or actions that are insulting enough to cause an ordinary person to lose self-control.
183
First Nation or Treaty Rights:
There are times when Aboriginal peoples may argue that they have an Aboriginal or treaty right to act in a way that would be illegal for anyone else.
184
What is the definition of a sentence?
Sentence: punishment imposed on a person convicted of committing a crime.
185
What is the main goal of sentencing? Explain.
Protection of the Public: Includes protection of their person, their property, and their individual Rights & Freedoms.
186
Why does society have a need for retribution?
Punishing an offender to avenge a crime or to satisfy the public that the offender has paid for the crime.
187
What is the difference between General Deterrence and Specific Deterrence?
Specific: punishment as a way of discouraging criminals from re-offending.
General: punishment as a way of discouraging other members of society from committing similar crimes.
188
What is the connection the justice system hopes to make between Rehabilitation and Recidivism?
The justice system wants rehabilitation to make offenders enter back into society and function so the likelihood of of a convicted criminal reoffending (recidivism) lessens.
189
Give the definition and one example of Restitution?
Restitution: Punishment that requires the offender to pay society back from harm or loss suffered. E.g. - Community service.
190
Why is Denunciation a stronger term than Deterrence?
- Denunciation sends a message that the offender’s conduct has violated society’s basic code of values and that such conduct will be punished.
- E.g. - Writing a letter to whoever they did wrong that explains why what they did was wrong and how they are going to change.
- It ends up making you really think about what you did wrong, just paying a fine isn't the same as the pressure from society that Denunciation causes.
- Inward understanding of what you did wrong
191
Is a Custodial Sentence for serious or lesser crimes? Explain
They are for serious crimes because they are reserved for 2 years or more and are served in federal penitentiaries.
192
Give three other examples of types of custody
- Closed Custody = penitentiary or jail
- Open Custody = bush camp, farm camp, community residence
- Intermittent Sentences = fewer than 90 days, can be served on weekends
193
What is the difference with a “Suspended Sentence?” When can a suspended sentence not be used?
- Relieved from serving sentence and put on probation, as long as you follow the conditions
- If there is a breach of probation, you can serve out the rest of your sentence
- Only available if no minimum sentence is set
194
Absolute Discharge:
Releasing a convicted offender and erasing the criminal record after one year.
195
Conditional Discharge:
Releasing a convicted offender under certain terms, and erasing the criminal record after three years if the terms are met.
196
Probation:
A sentence that allows a person to live in the community under the supervision of a parole officer.
197
Suspended Sentence:
A judgment that is not carried out, provided certain requirements are met.
198
Intermittent Sentence:
A sentence served on weekends and at night.
199
Conditional Sentence:
A prison sentence that can be served in the community, with strict terms attached.
200
Electronic Monitoring:
Allowing an offender to serve a sentence at home under electronic supervision.
201
Binding Over:
A sentence ordering the defendant to keep the peace and demonstrate good behaviour for up to 12 months.
202
Deportation:
A sentence of expulsion from the country.
203
Fines:
Specific amounts of money paid as penalties for offences.
204
Suspension of Privileges:
A sentence that withholds a privilege for a specified period or a lifetime.
205
Plea bargain:
A negotiated deal whereby the accused pleads guilty in exchange for a lighter sentence.
206
Incarceration:
Imprisionment for a specfiied period.
207
Dangerous offender:
Someone who constitutes a threat to the life, safety, or well-being of others.
208
Indeterminate Sentence:
A sentence for an indefinite period.
209
Concurrent Sentences:
Sentences served at the same time.
210
Consecutive Sentences
Sentences served one after another.
211
Restorative justice (also known as alternative justice):
differs from traditional approaches because it focuses on using joint problem-solving to deal with the harmful effects of crime.
212
The Courts Vs In Restorative Justice Programs
(Courts)
- Victim has limited opportunity to speak
- Offender, victim, and community remain passive
- Community’s role is limited
- Restitutions are rare
- Process is controlled and operated by the state
- Offender is blamed, stigmatized, and punished
- Process assumes win-loss outcomes
213
The Courts Vs In Restorative Justice Programs
(RJP)
- Victim is central to the process
- Offender, victim, and community actively participate
- Community is actively involved
- Restitution is normal
- Process is overseen by the state but is usually driven by communities
- Offender is reintegrated into the community
- Process makes win-win outcomes possible.
214
Victim-offender Mediation
An alternative measures program designed to determine restitution; involves the victim, the offender, and as mediator.
215
Family Group Conferencing
An alternative measures program, in which the victim and the offender meet with family members and other concerned parties to determine restitution.
216
Victim-Offender Panels -
Moderated discussions that allow victims and offenders, linked by a common crime, to express their feelings about the offence.
217
Aboriginal Sentencing Circles -
An alternative measures program that involves a process of healing for both the victim and the offender.
218
YOA (Young Offenders Act)
- The YOA deemed people ages 0-11 (child) to have no criminal responsibility, 12-17 (youth) partial responsibility and 18+ (adult) Full criminal responsibility for their actions
- In 2003 the YOA was replaced by the Youth Criminal Justice Act, which focused on 4 parts (Preventing crime, rehabilitating youths, reintegrating them back into society and meaningful consequences)
219
Detention & Remand
- Most youths are permitted bail
- But in some cases they will be put in foster care or will be under house arrest
220
Youth may be tried in 1 of 3 venues:
12-15 years - Family Court
16-17 years - Provincial Court
Serious Crimes - Adult Provincial Court
221
Youth may be tried in 1 of 3 venues:
12-15 years - Family Court
16-17 years - Provincial Court
Serious Crimes - Adult Provincial Court
222
What’s the courtoom like for youth?
- There are no trial by juries in youth cases, it is tried by judge alone UNLESS it is a serious crime in Adult Provincial Court
- The media may be let into the courtroom but the names of the youth offenders must be withheld and not published under the YCJA
- Serious Crimes may be an exception and only if the youth is convicted
223
Extrajudicial Sanctions (Youth)
Not all cases go to court….Police may request the following instead of trial:
- Apology letters
- Essays
- Community service
- Counselling
The catch is the offender must confess in order to be granted these sanctions
224
Sentencing (Youth)
Youth sentences are generally less severe than adults
It is felt that youths are generally easier to rehabilitate
Open custody: Youth is sent to a group home, foster home, is a less severe type of punishment
Closed custody: Juvenile detention facility
