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)
27
Q
Judicial Review of Administrative Decicions
A
- decisions of inferior tribunals are always review able by superior tribunals aka courts.
- this is a common law right regardless of what the legislation says
- privative clauses (statutory provisions that restrict or prevent judicial review) are unconstitutional
- must exhaust all other remedies
28
Q
Review of Discretionary Decisions
A
- can be either substantive or procedural
- discretion by official must be with a view to further legislative objectives and must not be exercised arbitrarily.
- Ron Carelli v. Duplesis & Baker v. Canada
29
Q
Administrative Remedies- Prerogative Writs
A
- specific remedies in enabling legislation
- common law remedies brought in the form of a writ asking for one of the following orders
- certiorari: quash (overturn) decision
- prohibition: order not to proceed with planned action
- mandamus: order to do something
- quo warranto: an order to remove an official because he or she has acted improperly or has not been properly appointed
- habeus corpus: an order to release an individual that is being detained. the lawfulness of detainment
30
Q
Basis for Provincial Jurisdiction for Environmental Law
A
- Constitution Act 1867
- S 92: property and civil rights, all matters of a merely local or private nature, local works and undertakings, municipal institutions, natural resources (added as an amendment)
31
Q
Basis for Federal Jurisdiction for Environmental LAw
A
- Constitution Act 1867
- S 91: sea coast and inland fisheries, federal works and undertakings, cross provincial boundaries, trade and commerce, Indians and Lands, peace order and good government, criminal law power.
32
Q
Alberta Environmental Legislation
A
- AEPEA: Alberta Environmental Protection and Enhancement Act
- Alberta Stewardship Act
- Water Act
- Energy Resources Conservation Act
33
Q
Federal Environmental Legislation
A
- CEPA: Canadian Environmental Protection Act
- CEAA: Canadian Environmental Assessment
- Fisheries Act
- Endangered species act
- Migratory Birds Convention Act
34
Q
Purposes of the AEPEA
A
- essential to human health
- balance economic growth and prosperity
- early intervention
- sustainable development
- mitigating environmental impact of government decisions
- government leadership in research and standard setting
- shared responsibility
- polluters pay
35
Q
Role of the Government in Environmental Law
A
-they set the standard: how much pollution should be allowed
36
Q
Permits Licensing and Approvals
A
- government authorization for development and operations
- discretion granted to regulatory agency or government officials
- environmental assessment then consultation with the stakeholders
- public hearings
- rejection or conditional approval based on the standard of emissions and financial assurance
37
Q
Compliance and Enforcement of Environmental Law
A
- monitoring and reporting
- inspections
- administrative compliance orders: control, stop, remedial (correct miscalculation)
38
Q
Offences, Prosecutions and Penalties of Enviornmental Law
A
- specific statutory offences and penalties
- failure to comply with administrative compliance orders
- director and officers are liable
- can be criminal prosecutions
- due diligence offences such as R v. Syncrude and the migratory birds
39
Q
Oil Sand Basics & Mining Process
A
- huge resource at third largest in the world
- belongs to Alberta S 92A Constitution Act 1867
- government collects royalty and taxes
- mining 10% and in-situ (in place steam) extraction 90%
- clear trees, removing surface burdens
- surface mining using trucks and shovels
- bitumen extraction using hot water, steam and mechanical agitation (in-situ)
- upgrading to crude oil
- tailing management contain processed water
- reclamation (restore to what it once was)
40
Q
Oil Sands Project Approval & Legal Requirements
A
- companies acquire leases from the crown
- 2$/ in-situ barrel
- production royalties- 25% net royalty on a sliding scale
- to get a project approved: Alberta Energy Regulator application, Environmental Impact Assessment, Stakeholder consultation, Federal Review for fisheries, navigable waters, Public hearings.
- Then need a Mineral Surface Lease, Operating Permit from AER and a Water License from AER
41
Q
Land and Agua Issues
A
- conditions are contained in AER approval of MSL and operating permits
- Alberta Energy Regulator Directive 74- Tailings Management
- Alberta Land Stewardship Act for the Lower Athabasca Regional Plan
- Fisheries and Navigable Waters are a Federal Issue
- Water Act- Lower Athabasca Water Plan
42
Q
Air Issues
A
- local air pollution from S02, NOx
- green house gases monitored through: Specified Gas Emitters Regulation
43
Q
Which Jurisdiction is Aboriginal Law Under
A
- Constitution Act 1867 S 91 (27) Indians and Lands Reserved for Indians as a federal responsibility
- Indian Act- Federal
44
Q
Constitution Act 1982
A
- Protection for existing rights Treaty Rights where land has been ceded to her majesty do not exist and are not protected. If you ceded the land it gone
- existing or future treaty rights
- Defines Aboriginals in Part II S2 as Indians, Inuits and Metis
- gender equality rights
- S 35.1 amendments regarding Aboriginals can only happen after a call for a constitutional conference were representatives of Aboriginal peoples must be present.
- S 38 is the amending formula
45
Q
Provincial Jurisdiction of Aboriginals
A
-S88 of the Indian Act: all laws of general application apply to Indians
46
Q
Aboriginal Rights: Definition, Purpose, Source
A
- definition: common law right (how constitutionally protected) practice custom or tradition that was integral to the distinctive culture of aboriginal group BEFORE contact. interpreted liberally
- purpose: protect traditional way of life
- source: raise from histroical occupation and use of land. existed before contact
47
Q
Aboriginal Title
A
- unique type of land claim. provides Aboriginal GROUPS the right to exclusive use and occupation of land for historical attachment purposes.
- crown owns the land due to the Doctrine of Discovery
- subject to prior dispositions and Aboriginal Title: land occupied prior to sovereignty.
- title is short of full ownership by recognized by courts as the basis for land claims.
48
Q
Treaty Rights
A
- unique legal instrument between crown and Aboriginals
- more than a contract (rights for successors) short of an international treaty
- liberal interpretation in favor of the Aboriginal persons they didn’t know what they were signing.
49
Q
Treaty 7
A
- Calgary South Blackfeet
- hereby cede, release, surrender, and yield
- get land set aside and hunting rights
- money annually (signing bonus)
- liberal interpretation
50
Q
Duty of Consultation and Accomodation
A
- government must consult and accommodate certain group with rights being affected by proposed developments
- arises from the honor of the crown
- quid pro quo for crown’s assertion of sovereignty
- duty to consult arises when: knowledge of a potential right or title exists and the crown is contemplation activity that would affect it
51
Q
R v. Sparrow
A
- quasi criminal offence regarding the size of a fishing net
- S 61 Fishing Act sets parameters for size but Sparrow argued the restriction was inconsistent with S 35 of the Charter
- Appeal and Cross Appeal dismisses, set aside conviction new trial ordered.
52
Q
Sparrow Test
A
- collective rights
- whether legislation restricting Aboriginal right is valid
1. has an aboriginal right been proved - onus on person (heresay ignored liberal interpretation)
2. has the aboriginal right been extinguished- onus on crown (high standard)
3. has the aboriginal right been infringed- onus on person
4. can the infringement be justified- onus on crown
a) does the legislation have a valid objective
b) does the legislation employ means that are consistent with the special trust relationship between the crown and aboriginal people - Sparrow wins
53
Q
Sentencing of Aboriginals
A
- Criminal Code S 718.2
- when imposing a sentence shall take in to consideration all available sanctions other than imprisonment with special attention to Aboriginal circumstances
- not working
54
Q
R. Gladue
A
- First case to consider S 718.2
- judges must consider unique aboriginal circumstances
- emphasis on restorative justice
55
Q
Constitutional Basis for International Law
A
- federal government has primary jurisdiction
- Constitution Act 1867 S 91: trade and commerce, military, sea coast and inland fisheries, naturalization of aliens
- S 92: local works and under takings other than those extending across borders. temporary foreign workers secondary jurisdiction. Quebec and AB unique.
56
Q
What is the Nature of International Law
A
- there is no world sovereign and that has implications
- no legit source of legislative authority
- different cultural norms and sources of law
- some enforcement but limited. International Courts, Sanctions, War
57
Q
Public International Law
A
- bilateral treaties between sovereign nations
- multilateral international conventions
- sovereign nations cede some power to international organizations by way of agreement ex) UN, EU, NAFTA
58
Q
Effect of International Law
A
- not part of domestic law until implemented by valid domestic legislation
- courts not bound to apply it until then it is only advisory
- International Custom may be presumed to be part of common law: general practice accepted as law according to its duration, consistency, generality of practice and belief action (legal obligation)
59
Q
Greenhouse Effect
A
- GHG’s trap heat within the Earth’s atmosphere
- GHG’s include carbon dioxide, methane and water vapor
- hydrocarbon energy releases carbon dioxide
60
Q
International Response to Climate Change
A
- UN Framework Convention on Climate Change (1992)
- 192 parties- near universal membership
- stabilize greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous human interference with climate system
- Kyoto Protocol (1997)
- 192 parties but only 37 industrialized commit
- target reduction of 5% by 2012 compared to 1990 levels ( 6% in Canada)
- flexible reduction: carbon market where you can buy and sell emissions. TPP. clean development.
61
Q
Canada and Kyoto
A
- Kyoto Protocol Implementation Act. ratified domestically
- target was 6% reduction but increased 38% with no consequences.
62
Q
Paris Agreement
A
- target: to keep temperature increases this century to less than 2 degrees.
- nationally determined contributions.
63
Q
Canada’s Climate Intiatives
A
- signed Paris Agreement
- 2.65 billion aid to developing countries to fight climate change
- 2 billion to Green Projects Trust Fund
- work with provinces and territories to implement $50 per tonne carbon tax
64
Q
Alberta’s Climate Intiatives
A
- subsidize carbon capture and storage
- $30/tonne tax on large industrial emitters who go over their targets
- phase out coal
- 2030 large generator compensation
- cap on oil sands
- gas tax and natural gas tax
65
Q
Tragedy of the Commons
A
- commons was the pasture that was owned communally and used by everyone to graze cattle
- users: cows and herdsmen
- the tragedy is that the individuals are self interested and want more. too many cows destroy the pasture to the determent of all. marginal cost v.s marginal utility
- solutions: property rights, regulation, taxes
66
Q
Tragedy of the Commons Applied to Climate Change
A
- commons: earth/the atmosphere
- users: 7 billion people or fossil fuel producers
- behavior: free loading costs. some big polluters but share 1/7 billionth of the cost
- tragedy: climate change
- solutions: taxes on the sale of gas. economic incentives. property rights through TPP’s cap and trade.
67
Q
Lessons from the Tragedy of Common
A
- individuals act in their own best interests
- individuals receive entire marginal benefit from one addition unit of production
- individuals share cost of pollution
- those who benefit should pay the cost
