Laws and the Courts Flashcards
Why are formal laws dynamic?
They are always evolving due to changes in society, politics and technology.
Where do laws come from?
The respond to crime and antisocial behaviour.
What is “Rule of Law”?
No one is above the law and everyone is seen as equal.
What 4 groups had laws that we are aware of?
R-Romans
A-Assyrians
G-Greeks
E-Egyptians
What is King Henry ll credited with?
Establishing tribunals and precedent
What is Magna Carta? Who created it?
Everyone is subject to the law and have the right to justice and fair trial.
Created by Archbishop of Canterbury
What is another name for common law?
Judge-made law
What is precedent?
Courts are bound by prior decisions and the decisions of higher courts
What is common law?
law developed through judicial decisions and precedents, used to interpret statutes (including criminal law) & guide courts & lawyers in sentencing criminal matters
What is another word for Precedent?
Stare Decisis
What are the 3 key elements of the Canadian justice system?
-Presumption of innocence
-Burden of proof
-If guilt cannot be proven then the accused must be acquitted
What is substantive law?
consists of the written rules that define crimes & punishments, the rights & obligations of citizens & criminal justice personnel
What is Procedural law?
focuses on the rules that determine the enforcement of rights (due process)
What percentage of inmates in Alberta are on remand?
80%
What is the Charter of Rights and Freedoms?
Defines the rights & freedoms of Canadians, including those accused of committing crimes
What is the role of the Supreme Court?
Resolving interpretation issues & disputes resulting from the Charter
What are the 3 elements of a crime?
-An offence in the Criminal Code
-Actus Reus
-Mens Rea
What is Actus Reus?
The criminal act
What is Mens Rea?
The criminal intention or guilty mind
What is “crime of omission”?
An act where the accused has failed to take action (eg, reporting child abuse)
What is a criminal act?
Considered wrong by society and either causes harm to an individual or society
What is intent?
Intention to commit harm, not care about outcomes, or could foresee harm
What is negligence?
An act that shows disregard for the well-being of others, failure to take responsible steps to limit harm
What is reckless behavior?
Acting in a manner that is dangerous or risky
What is willful blindness?
Person is aware that a crime was likely being committed but he or she chose to ignore the facts
What is an alibi?
Where witnesses or other forms of evidence show that the defendant could not have committed the offence (must be adequate & timely)
What are justification defenses?
Accused admits to committing an offence but the act was justified (consent, duress, entrapment necessity, provocation, self-defense)
What are excuse defenses?
One’s criminal conduct can be excused because the accused could not form the intent to commit a crime (age, automatism (NCR), mental disorder, mistake)
What are the 4 layers of offences? (Wedding Cake Model)
Layer 1: Celebrated cases (eg, Ted Bundy)
Layer 2: Serious Indictable offences (eg, rape, assault)
Layer 3: Less serious Indictable offences (eg financial or drug related crimes)
Layer 4: Summary Offences (eg, misdemeanors)
What are the 4 levels of courts? (in order from lowest to highest)
-Provincial and Territorial Courts (Inferior Courts)
-Provincial and Territorial Superior Courts
-Provincial and Territorial Courts of Appeal (Appellate Courts)
Supreme Court of Canada
What is heard in Provincial and Territorial Courts (Inferior Courts)?
Most cases are resolved here: criminal cases, family law, youth justice, traffic & bylaw, regulatory, claims involving money, small claims, preliminary hearings
What is heard in Provincial and Territorial Superior Courts?
Hear serious criminal matters & family law cases including divorces
WHat is heard in the Courts of Appeal (Appellate Courts)?
Hear criminal cases from the provincial & territorial courts or the superior courts.Hear commercial, property, family disputes; negligence claims; bankruptcies; corporate reorganizations
What can the Appeal Courts do?
Dismiss the appeal, order a new trial if there were serious errors, increase or lower sentences imposed by lower courts
What is heard in the Supreme Court of Canada?
Only hear cases that they consider important & having a national interest
What are the specialized courts in Canada?
Mental Health courts
Drug treatment courts
Domestic abuse courts
Indigenous/Gladue courts
What are the 12 steps in criminal investigations and trials?
-Investigation
-Laying a charge
-Deciding whether to prosecute
-Requiring the accused to attend court, entering a plea, and bail
-Types of offences
-Choice of trial court and election by the accused
-Preliminary inquiry or hearing
-Plea negotiation
-Trial
-The verdict
-Sentencing
-Appealing the verdict or sentence
What is “Assembly-Line Justice”?
When the courtroom personnel efficiently work together to move minor offences through the CJS
What is the most common sentence?
Probation
What is a risk of assembly-line justice?
A high number of individuals appear without representation (the risk of errors occurring during the legal process increases)
What is the role of a Judge?
Judges make decisions on guilt & sentencing
What is the role of Crown Prosecutors?
Expected to act independently & make decisions on charging individuals based on what is in public interest without political interference (discretion)
What is the role of the Defense Counsel?
These trained lawyers have many responsibilities (eg: ensure full disclosure, all evidence presented, cross-examine witnesses, explore rehab options, etc.)
Who are teh 3 Support Personnel in the court?
-Court Clerks - put together the docket/cases scheduled & ensure that the cases flow through the courts
-Indigenous Court Workers provide services to any Indigenous persons accused of an offence & to family members who request their help
-Sheriffs - escort & transport detainees & prisoners serving sentences, as well as provide courtroom security
What are the fundamental principles of sentencing?
-Proportionate: the gravity of the offence and the degree of responsibility of the offender
-Individualized: take into account the particular circumstances, background, and experiences of the offender; and
-Restrained: imposes the least restrictive sanction appropriate in the circumstances, with imprisonment used only when no other sanction is appropriate.
What is the purpose of sentencing?
To protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintain a just, peaceful and safe society
What are the 3 most common adult sentences?
Probation, Custody, and fines
What is absolute discharge?
Least severe sanction that can be imposed that results in a technical finding of guilt, but no conviction is registered, & no conditions given to follow
What is conditional discharge?
Found guilty of a criminal offence, put on probation (6-18 months), & after the offender fulfills those conditions, the discharge becomes absolute
What is probation?
Release of the offender into the community under the supervision of a Probation Officer & must follow conditions (most common sentence in Canada)
What are standard conditions of probation?
Keeping the peace & being on good behavior, reporting to the court when required, & advising court/P.O. of changes in address or job
What are additional conditions of probation?
specific to the individual’s offence (eg: addictions treatment, curfews, residency, abstain from alcohol/drugs, limit peer contact or travel, etc.)
What is a conditional sentence? When would this be used?
-Allow offenders to serve their custody sentences in the community if they follow strict conditions
-These sentences are used only if judges are satisfied that the individual is not a danger to the community, has no history of failing to obeying court orders, & sentence <2 years
What is imprisonment? When would it be used?
when offenders are put in prison. It is used for more serious offences.
How long must you be sentenced for to be in a provincial or territorial prison?
2 years minus a day
How long must you be sentenced to be in a federal prison?
2 years plus a day
What is an intermittent sentence?
It allows offenders to serve in blocks of time for sentences less than 90 days. Would typically be the wweekends.
What crime(s) gets sentenced to life in prison?
First and second degree murder
What is a victim surcharge?
It must be ordered at sentencing and is paid into provincial and territorial assistance funds to develop and provide programs, services, and assistance for victims of crimes
What is restitution?
Money the Court may order an offender to pay the victim for money that the victim lost as a result of the offender’s crime
What is proportionality?
Sentences must reflect the seriousness of the crime & the offender’s responsibility in committing the crime
What are aggravating factors?
Facts related to the offence that might lead to a more severe sentence, including if the offence involved a particularly vulnerable victim such as a child or it the crime was related to bias, prejudice, or hate
What are mitigating factors?
Facts related to the offender that might encourage a judge to impose a less severe sentence, such as if the individual is a youth, young adult, or first-time offender
What is totality?
Sentencing in Canada is intended to be just & fair
What is penal populism?
Refers to political “tough on crime” policies that are used to win votes rather than serve justice
How many people’s taxes covers the cost of an inmate in provincial vs federal prisons?
7 for provincial and 10 for federal
What do mandatory minimum penalties do?
Remove the discretion from the judge, as anybody found guilty of the offence receives the minimum sentence regardless of any mitigating factors
What are indeterminate sentences?
No statutory release date, no warrant expiry date, & can result in incarceration for life
What is a dangerous offender (DO)?
Designation given to offender convicted of crime not eligible for life sentence that results in an indeterminate sentence
What is a long term offender?
Designation given to offenders that pose a significant risk to reoffend (eg: sexual offenders, kidnappers, assault with weapon)
When do federal offenders usually become eligible for full parole?
After serving one-third of their sentence, or seven years, whichever is less
What is statutory release?
A legal provision that automatically entitles most offenders, who have not been granted parole, to serve the final one-third of their sentence in the community
Who is not entitled for statutory release?
Offenders serving life & indeterminate sentences are not entitled to statutory release
What is a pre-sentence report (PSR)?
Ordered by Judges prior to sentencing to provide an overview of an offender’s strengths & weaknesses, & whether prior justice system interventions were successful
What is a gladue report?
Judges must consider how Gladue factors (unique Indigenous backgrounds, challenges, & perspectives) have affected that person when they determine a sentence
