Mid Term 1 Flashcards
2 major themes
Criminal law is an exercise in discursive problem solving
Criminal law legitimizes state power (translates states use of violence into authority)
Concept of precedence
Decide disputes by referring to past cases (past cases with similar facts)
- use each case that comes before you to develop rules to help you with decided cases in the future that have similar facts
Common Law
Collection of post decisions
Brought to us by English settlers
Stare decisis
Stare decisis
Lower courts are bound by the decisions of higher courts
Civil/private Matters (Provence/territories)
Common law every except Quebec
Discursive Problem Solving
Criminal law is an exercise in discursive problem solving : type of law than rather than relying on rules- it’s a system that solves problems as they arise
British North America Act
1867
Federal:
criminal law making
Criminal procedure
Provincial:
Set up courts of criminal and civil jurisdiction
Common Law
1879
Body of cases
Write them down as the criminal code
Canadian Criminal Code
Trial judge can create new offences (criminal) can create new criminal defences
1955
Only time we revised the criminal code.
Another source of criminal law is statutes (cases)
Can’t create new crime, but can create new defences
The important thing isn’t the rule, it’s the reasoning they (the judges) use when they apply that rule and because it’s a common law situation, they are applying the rule in the context of a particular set of facts
Role of Judge
Judicial Reasoning (stare decisis)
Overturning vs applying vs. Distinguishing on the facts
We can apply facts that are similar from Precedent 1 and Precedent 2 or we can distinguish the new case from the precedent cases (p1 and p2) on the facts
RESULTS ORIENTED JUDICIAL DECISION MAKING
- making the decision that will fly with society
Crime Control Model
CJS is there to repress crime
We don’t want to just punish it, we want to prevent it as well (managerial approach)
Police screen out innocent people –> encourage guilty pleas (fast, efficient)
Illegally obtained end = admitted
Quick conviction… Appeals are a waste of time (inefficient)
Legal rights and criminal procedure get in the way of justice
Due Process Model
Created by liberal principles
Protect vulnerable individuals from the overwhelming power of the state.
Actors who are the most concerning:
Police (wield monopoly over force)
Prosecutors (have vast resources of the state behind)
Procedural rules protect defendant from any abuse of state power
Not enough to prove guilt, you must assure that the police, the crown attorney and juror all follow the rules.
Continuum of Citizen Dissent
Legal: voting, lobbying…..legal: protests…
Civil disobedience (intentionally refuse to obey a law that you believe to be unjust or in support of some other dissent around injustice ….
Committing yourself to non violence is accepting arrest…
Civil disobedience exposes state’s moves as illegitimate and therefore violent …. Accepting the violence of the state exposes the violence of the state
Exclusion of Evidence
Administration of justice into disrepute
Doesn’t stop police officers from using force the next time
Feeds the crime control model
Breaking the rules to get justice
Criminal prosecution of a police officer
Hard to do… The victim is open to retaliation
Crown attorney who prosecuted the charge needs police cooperation
Burden of proof: beyond a reasonable doubt
Won’t change police culture…. Still feeds the crime control model
Disciplinary Hearings
- Internal investigation
- Investigator is immersed in the culture of policing therefore it is difficult to have confidence in this - Public complaints commission
- Crime control: complain = victimization of the officer
- If successful, remedy includes loss of employment
- loss of Liberty –> due process
- low success rate
R v Dunlop and Sylvester 1979
Aiding and abetting in gang rape?
They did nothing to assist the victim
Aiding and abetting if they did nothing?
Mere presence is not sufficient.
If presence is accompanied by prior knowledge or attendance with the purpose of encouraging then it can be considered an offence.
Encouragement or facilitation includes
Keeping a lookout
Enticing the victim to the place
Preventing victims escape
Acquitted
Civil Litigation
Civil (not criminal)
The answer is not firing or jailing the police officer but receiving monetary compensation for damages
Burden of proof is NOT beyond a reasonable doubt
Has a higher success rate than disciplinary hearings
Role of Police… Initiate the trial process
- Investigation
- Investigatory power
- s8 (search and seizure) : any search without a warrant is prima facie (a violation of the citizen’s privacy)
- citizen has a reasonable expectation of privacy
- Investigatory detention
- articulable cause
- reasonable suspicion
- Arrests
- summons, promise to appear (no loss of Liberty)
- arrest (loss of Liberty)
- taking physical control of someone to detain them, which includes touching or words of arrest and the individual submitting to the arrest
3 types of offences
Indictable offence
More serious, more potential loss of Liberty, more procedural protections
Summary offence
Max penalty of 6 months, 5000$ or both
Hybrid/dual offence
The crown elects to proceed:
- by indictment
- by summary
Until the crown elects –> treated as an indictable offence
- gives the accused those additional procedural protections
Don’t arrest unless…
Can’t establish identity (get them into court… Summons)
To preserve evidence –> court
Can’t prevent further offences
Police start the court process
Don’t arrest unless —> summons
⬇️
Arresting officer —> summons or appearance of notice
️⬇️
Officer in charge —> summons or promise to appear, or recognizance (bail)
Bail
500$ max
Says : I promise to come back and if I don’t I must pay x amount
If you don’t appear, criminal conviction of failure to appear
2 hours - bail court - judicial oversight
- Primary ground: appear in court
- Secondary ground: reoffend or interfere with administration justice
- Tertiary ground - confidence in administration of justice
If the crown can approve any of these things applies to you….detention order ( you can then go to higher court for a bail review)
Surety
Not the accused, someone else
Someone who is willing to sign the recognizance
- they have the property in wtv dollar value and can prove to the court
- promise to supervise accused and make sure they come back to court and if not, you can come and get my money
Recognizance can also have conditions attached to it
- failure to comply (criminal offence)
Courtroom
“A symbolically organized public space that is designed to reproduce through repeated visual rituals, a collective obedience to political authority”
Courtroom Layout
Dias - I’m front of the courtroom, makes things higher, where the judge sits, he is a representative of the state and separate from the lawyers. Represents impartiality and power.
Bench - on top of Dias, large and impressive, symbolizes impenetrability and permanence.
Prisoner’s dock - on the side, out of the central visual point of view. Symbols of the isolation of the accused, the unworthiness of the accused and the stigma that the accused carries
Counsel Tables - separated by a ritual distance , which makes them opposing parties
The bar - wood railing that separates the public from the triangle which also focused attention on the triangle
Centre Aisle - leading up to the gate in the bar, symbolic invitation for public to participate, another ritual distance
Gallery - where the public gets to sit, their presence is anticipated, expected, and invited. Public presence is important because everyone in the gallery can see the triangle, just rows of pews (members of the public are undifferentiated)
Stand (witness stand) - right beside the judge, higher than everyone else, but lower than the judge. Creates a fishbowl and is a vulnerable position to be in. Judge has a lot of power over the witness, can be held in contempt, m
Jury box - off to one side, have a really good view of the triangle and the witness. Jury’s presence is to decide facts not law. Behind the bar and are required to be present by law.
Triangle - “Celebrants”
Trial judge
Defence attorney
The crown attorney
Ritualized dress
- higher courts are required to robe, to wear black shoes, black or grey pantyhose
Ritualized speech
- arraignment
- ritual responses
- create some feeling of awe or intimidation
- opposing counsel = “my friend” or “my learned friend”
- disagreeing with a judge = “with respect” or “with greatest respect”
Court is…
A public ritual
Must be public or the ritual doesn’t work
Parts of Trial
Preliminary matters
Bail
Set date appearances
Trial
- Arraignment
- charges are read to the accused - Plea
- accused is presumed innocent until the state proves they are guilty - Crowns opening statement
- where crown summarizes the case they intend to prove - Crowns examination in chief and defence attorneys cross examination
- they call witnesses
- the defence attorney cross examines the crowns witnesses
- directed verdict? Yes… Acquitted/dismissed, No… - Defence counsels opening statement
- Defence councils exam in chief and Crowns cross examination
- Crowns closing statement
- Defence counsel closing statement
- Crowns rebuttal (if any)
Jury trial
- TJs instructions on law
- Jury’s deliberation in facts
- Verdict
No Jury
12. Verdict
(TJ is the decider of facts and law)
System is set up to give accused the last word to put them in the strongest position possible for a decision in their favour
Jury = trier of facts
Trial Judge = law
Bilateral individualism/ Liberal principles behind the criminal justice system
Conflict between state (protecting) and transgressors (rational decision to transgress the rules)
Victim : individual who loses property or physical security because of the actions of another individual (predation)
The victim does not have a role in the CJS
In anything, they are a witness but not a necessary witness.
Given to this…
It is the states job to punish individual transgressors
If the state fails to punish them, it then becomes rational to take back the right to use force and use violence to protect your property and your physical security
R v Curran
Defoe and Curran are in a mall, they see Armand and Defoe wants to rob him.
Defoe pushes him down the stairs to rob him
Defoe gauges his eyes out
Armand dies
Accessory after the fact
Punishment = 1/2 punishment of the full offence
Results oriented judicial decision making
The judge is looking for the legal reasoning to justify the result they want
Guilty Plea
- To a lesser included offence
- To a smaller number of multiple accounts
- Agreed upon sentence
In a plea bargain, the defence counsel and crown attorney become the decision makers instead of TJ
Joint Submission
- we agree, this is what both of us think we should do
Why plea bargain?
Skip the trial
Crown Attorney –> responsible for getting through the list of items that must be dealt with that day, as quickly as possible, with as many convictions as possible and less emphasis on what the conviction is for
Defence Counsel –> going to lose the majority of cases because most amount of accused are guilty, goal as to see success as reducing the consequences of the accused actions to the accused
Crown attorney can be successful by getting a guilty plea
Defence counsel can be successful by reducing the charges or the length of the sentence
Founding principle of criminal law
“Actus non facit reum nisi mens sit rea”
- an act is only guilty if the mind is guilty also
R v Droste
Even though his intent was to kill his wife , he ended up killing his two children. Mens rea transferred from wife to mens rea and actus reus to kids.
3 types of actus reus
- Action
- State of being / status offences
- Omissions
Sexual assault actus reus checklist
Before Case Law
- Touching directly or indirectly
- No consent
After R.v. Chase (perverted old guy)
- in circumstances of a sexual nature where the sexual integrity of the victim is violated
- does not require the touching of genitals
After R.v. KB (grabbing 3yr olds sons testicles)
- circumstances if sexual nature including aggressive acts of domination which violate the victims sexual integrity
- does not require the accused’ sexual gratification
After R.v. Bernier (took advantage of disabled ppl with jokingly touching private areas)
- does not require the accused’ hostility
