Legal Studies Flashcards
What are the 3 sources of law?
- Constitution
- Common Law (Case Law/Judge made law)
- Statues (Provincial/Federal) & Bylaws (Municipal)
What is law?
A written custom established by a formally recognized governing body with authority. There are Sanctions for non- compliance.
What is common Law?
Common law is subject to change over time. It establishes and sets legal precedents. a.k.a. “judge made law, case law”
What is the rule of law?
Everybody is equal under the law. Nobody is above the law. Everyone can be charged the same as anyone else in the country.
In what order is the organization or levels of the Courts?
- The Supreme Court
- The Court of Appeal
- The court of King’s Bench
- The provincial Court
What are the 4 types of law?
- Public Law
2. Private Law
3. Criminal Law → burden of proof
4. Civil Law → burden of proof
Furthermore:
- Civil burden of proof = balance of probabilities
- Criminal burden of proof = beyond a reasonable doubt
- Criminal = guilty Civil = Liable
What is a right?
A right is a legal, moral, or social expectation that Canadians are entitled to from the government. Or anyone on Canadian soil Examples:
- The right to vote.
- The right to be presumed innocent until proven guilty.
- The right to life, liberty, and safety.
What is a freedom?
A freedom is a right to live your life without government interference. Examples:
- The freedom to practice any religion, or no religion at all.
- The freedom to think your own thoughts, speak your mind, and to gather peacefully into groups.
- The freedom to print and broadcast news and other information.
What is the scope of the charter?
To impose limits on the rights of the government in the performance of their duties.
In other words, it is there to protect
Citizens rights from the power of the government.
What are the 3 types of offences? Describe them.
Summary: Less serious; max penalty 2 years less a day and/or $5000 fine.
Indictable: More serious; max sentence up to life imprisonment.
Hybrid: Most offences; crown will decide which offence to proceed with.
What is Section 2 of the Charter of Rights and Freedoms?
Section 2 confirms the fundamental freedoms that must be guarded. I.e.
- Freedom of conscience.
- Freedom of religion.
- Freedom of expression.
- Freedom of assembly. (Peacefully)
- Freedom of association.
What is section 1 of the Charter of Rights and Freedoms?
Section 1 is used to limit the application of the charter or conduct that would otherwise breach other rights.
This section allows law and restriction that might be otherwise breach the charter to remain in effect if the infringing law meets a objective and law is proportionate to that objective. (SAVING PROVISION)
What is Section 7 of the Charter of Rights and Freedoms?
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental Justice.
What is Section 8 of the Charter of Rights and Freedoms?
Section 8 provides everyone with the right to be secure against unreasonable search and seizure.
- A search means that something interferes with a persons reasonable expectation of privacy.
- A seizure means taking something without the consent of a person. If a person consents to give their possession up, it is not a breach of this section.
What are sections 9 and 10 of the charter?
Section 9: Detention or Imprisonment. Everyone has the right not to be arbitrarily detained or imprisoned.
Section 10: Arrest or Detentions. Everyone has the right on arrest or detention;
(a) To be informed promptly of the reason
(b) To retain and instruct counsel without delay and to be informed of that right.
(c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
What is section 24 of the Charter of Rights and Freedoms?
Section 24 provides remedies available to anyone whose charter rights have been proven to be violated. Examples:
- Acknowledgement.
- Adjournment.
- Adjournment plus expenses.
- Exclusion of evidence.
- Reduction of sentence.
- Released on applicants of Habeas
Corpus,
- Judicial stay of proceedings (Trial is stopped temporarily).
What is section 12 of the Charter of Rights and Freedoms?
Everyone has the right not to be subjected to any cruel or unusual treatment or punishment.
What is section 15 of the Charter of Rights and Freedoms?
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
What is section 11 of the Charter of Rights and Freedoms?
Section 11: Proceedings in Criminal and Penal Matters. Any person charged with an offence has the right:
a) to be informed without unreasonable delay.
b) to be tried within a reasonable time.
c) not to be compelled to be a witness in proceedings against that person in respect of the offence.
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
e) not to be denied reasonable bail without just cause.
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the max punishment for the offence is imprisonment for five years or a more severe punishment.
g) Not to be found guilty on account of any act or omission untess, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
What is section 32 of the Charter of Rights and Freedoms?
Section 32 reaffirms that the charter applies to federal, provincial, and territorial governments in Canada.
What is section 33 of the Charter of Rights and Freedoms?
Section 33 (the “Notwithstanding Clause”) allows federal/provincial/territorial governments to enact law(s) that contravene section 2, or section 7-15 of the charter. Any limitations enacted under section 33 require review every 5 years.
What is section 22 of the Criminal Code?
Section 22: Person Counselling Offence (1.) Where a person counsels another
person to be a party to an offence and that other person afterwards a party to that offence, the person who counselled is a party to that offence, notwithstarding
that the offence was committed in a way
different from that which was counselled.
2) Every one who counsels another person to be a party to an offence is a party to
every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
3) For the purpose of this Act, “counsel” includes procure, solicit or incite.
what are the YCJA (Youth Criminal Justice. Act) Sentencing principles?
1) Always use the LEAST RESTRICTIVE ALTERNATIVE that allows for an appropriate sentence for the offence committed.
2) Depending on the age of the offender, a youth sentence can be carried out in an adult facility..
What are the YCJA Sentencing Options?
- Reprimand
- Absolute or conditional charge
- Fine not exceeding 5000
- Restitution
- Community service
- Probation for up to 2 years
- Custody and Supervision order
- Deffered custody and supervision order
- Intensive rehabilitive custody and supervision order
