LWSO 203- Midterm 2 Flashcards
1
Q
Purpose and Definition of Criminal Law
A
- purpose: to protect and preserve society by defining crimes that establish minimum standards of behavior.
- crime is a wrong done against society
- a breach of her majesty’s peace
- same act may also be a private wrong
2
Q
Federal v.s Provincial Jurisdiction
A
- Constitution Act 1867
- S 91 federal. law and procedure.
- S 92 provincial. adminstration of justice .maintenance of provincial courts both civil and criminal. Imposition of fines, penalties and imprisonment. Quasi-criminal offences
3
Q
Federal Criminal Statutes
A
- Criminal Code. Defines and classifies procedures.
- Canada Evidence Act 1985
- YCJA 2002
- Controlled Drugs and Substances Act
4
Q
Mens Rea
A
- mental element, moral blame
- guilty mind
- intent, specific v.s general
- true accidents are not crimes
- need actus reus and mens rea for a crime.
5
Q
Degrees of Mens Rea
A
- subjective intent: accused specifically intended to commit this crime. ex) first degree murder pre-meditated
- objective intent: standard of a reasonable person. recklessness. ex) criminal negligence, drunk driving
- guilt by association: criminal code S 21 all parties to a crime are taken to have mens rea. ex) get away car
- “strict liability” offences: some environmental offences don’t require mens rea. R v. Syncrude no due deligence
6
Q
Actus Reus
A
-physical events constituting the crime. mere intent is not sufficient.
7
Q
What Are the Types of Crimes
A
- Indictable offences
- Summary offences
- Hybrid offences
8
Q
Indictable Offences
A
- most serious
- if convicted, usually results in jail time.
- maximum sentence is life in prison.
- Section 469 most serious, Section 553 least serious.
9
Q
Summary Convictions
A
- less serious
- if convicted, usually a fine.
- provincial court, no jury, no preliminary hearing
- Section 787
10
Q
Hybrid Offences
A
- either indictable or summary depending on the seriousness of the crime and the statute
- crown chooses, indictable by default
11
Q
R v. Billy Smith
A
- facts: Susan (16) and Billy (20). sexual touching @ 13, sex @ 15, Both drunk, Billy rapes Susan (16)
- S 265 assault, S 273 sexual assault-indictable or summary
- no consent when there is fraud, in a position of authority
- S 273.1 incapable if drunk or in a position of authority or if someone else consents for u
- S 150 is all the age stuff. 12-14 2 years difference no position of authority. 14-16 5 years difference, no marriage
- mistake of age not valid unless all steps to ascertain her are are taken
12
Q
Onus of Proof
A
- S 6 Criminal Code innocent until proven guilty
- S 11 of Charter of Rights and Freedoms
- burden of proof on the crown and it must be proven without a reasonable doubt
- if there is a jury, they decide whether the standard and burden of proof have been met. guilty/not guilty. if no jury then the judge.
13
Q
Laws of Evidence
A
- Judge may exclude evidence if it is:
- irrelevent: doesn’t help prove anything
- unreliable: ie) hearsay
- more prejudicial than probative: makes the defendant look bad for no reason ie) character witness
- obtained unfairly: ie) unlawful search or seizure
- unfair to defense: ie) would waste time, confuse issues or try to enter evidence late
- Voire Dire: trial within a trial to determine the admissibility of evidence
14
Q
Criminal Procedure for Indictable Offence
A
- Information: document that initiates criminal proceedings. sworn or confirmed before a judge. (indictment if Superior Court) accused is arrested or a warrant for their arrest is issued.
- Court Attendance: initial attendance
- Disclosure: Crown has a duty to disclose all evidence. R v. Stinchcombe “Fruits of investigation are not the property of the crown.”
- Bail Hearing: S 11 Charter of Rights, accused not to be denied bail w/out cause”
- Choice of Method of Trial: serious offences don’t get a choice. Can be Provincial Court or Court of the Queen’s Bench (with or without a jury). S 469 Criminal Code must be Queens Bench. S 553 Criminal Code must be Provincial
- Preliminary Inquiry: is there enough evidence to go to trial. prima facie case. judge can dismiss or set trial date.
- Preliminary Matters: jury selection if there is one, pre-trial conference and a schedule of crown witnesses.
- Trial: crown makes case first. calls witnesses and evidence. cross examination by defense. the defense can then but does not have to present its own evidence and witnesses.
15
Q
Sentencing and Appeals
A
- representations by the crown and the defense
- victim impact statements
- judge decides sentence but is subject to minimums and maximums set out in Criminal Code.
- appeals are made to the provincial Court of Appeal
- crown or defense can appeal the decision or the sentence
- appeals on law only no evidence
- confirm, acquit, retry, vary sentence
- can appeal further (w/leave) to SCC
16
Q
Objectives of Sentencing
A
- incapacitation
- specific deterrence: you learn your lesson
- general deterrence: others learn from your lesson
- denunciation
- retribution
- rehabilitation
17
Q
Sentencing Options
A
- fines or imprisonment or both
- maximums and minimums set out in enabling statutes
- capital punishment abolished in 1976
18
Q
Plea Bargaining
A
- recommendations of prosecutor and defense
- not binding on the judge
19
Q
Administrative Law and Administrative Agencies
A
- public domestic law
- aspects of gvt. delegated via legislation to administrative agencies
- the agencies can then make their own rules, conducts and standards
20
Q
Purpose for Delegating Power
A
- to unburden courts, legislatures and executives
- speed up access
- provide expertise
21
Q
Limits on Delegation
A
- enabling legislation
- cannot delegate power you don’t have
- cannot sub delegate to another unless it is authorized by the legislation; delagatus non protest delgare
- Constitution Act 1867 S 91 and 92 who gets to devolve what
22
Q
Types of Powers of Administrative Agencies
A
- quasi legislative. can make detailed substantive and procedural rules consistent with enabling legislation
- quasi executive. can perform executive functions consistent with enabling legislation.
- quasi judicial. adjudicate disputes between government members of society consistent with enabling legislation
23
Q
Internal Challanges
A
- enabling legislation (including regulations and rules) provide the process by which agency decisions can be reviewed.
- must be used first before courts
24
Q
Types of Delegation
A
- cross-delegation: process whereby one level of government delegates to another level. not allowed
- inter-delegation: crossing of jurisdictional lines, one level creates the body but both can delegate
- sub delegation: now allowed unless delegatus non potest delagare (enabling legislation allows it)
25
Q
Substantive v.s Procedural Public Interaction
A
substantive rules: fundamental rights and obligations to the public usually found in relevant legislation.
-what standard of review is applicable?
-correctness: court will show no deference to administrative tribunal if the tribunal made an error in law or fact.
-reasonableness: if the tribunal did not make an error, but the court disagrees with the decision show deference to tribunal.
procedural rules: agencies own rules for practice and procedure. less formal than a courts. must first look at rules set out in legislation and regulation
-common law inherent right to procedural fairness
-notice to be heard, to representation, to cross examine, to reasons for the decision and an unbiased adjudicator.
26
Q
Appeals to Courts
A
- no common law right, appeals may be provided for by legislation
- decisions of federal agencies appealed to federal courts (Federal Courts Act)
- decision of provincial agencies are appealed to the Provincial Superior Courts (ie court of Queens Bench of the Court of Appeal)
