Offences, Defences, Sentencing Flashcards
What are the two categories of law?
1) substantive
2) procedural
What are the elements of crime?
Mens Rea: intent
Actus Rea: action
What is substantive law?
A category of domestic law that defines the rights, duties, and obligations of citizens and government.
What is procedural law?
Law that prescribes the methods of enforcing the rights, duties, and responsibilities of substantive law.
What is the crown attorney?
Also known as the prosecutor.
The lawyer representing the governments interests in prosecuting criminal offenders.
What is a defense counsel?
The lawyer who represents the defendants interests.
What is arraignment?
The first stage of a criminal trial in which the court clerk reads the charges an the defendant enters a plea.
What is a summary offense?
- less serious
- maximum punishment is 6 months in prison and/or a $2000 fine
Eg. Parking ticket or having open alcohol in public.
What is a hybrid offense?
-crown prosecutor decides whether summary or indictable charge
-also called dual procedure offense
Eg. Soft drugs
What is an indictable offense?
-most serious
-maximum penalty is life in jail without parole
Eg. 1st degree murder
What Is a quasi-criminal offense(dual offense)?
-provincial laws
Eg. Highway traffic act, speeding tickets.
What is the trial system?
1) offense
2) arrest
3) bail hearing
4) preliminary hearing
5) jury selection
6) opening submissions
7) examinations
8) cross examinations
9) summations
10) jury deliberations
11) verdict
12) sentencing
13) community service, probation, fine, incarceration
What happens in step 1, offense, of the trial procedure?
Decides if it’s summary, indictable or hybrid.
Why happens during the arrest?
- officer identifies himself
- touches the person
- informs the person that he is under arrest
- states the charge
- informs the person of his rights
What happens during the bail hearing?
- happens within 24 hours of arrest
- may be denied bail
- 3 types of bail:
1) recognizance
2) cash
3) surety
What happens in the preliminary hearing?
The crown must show that there is enough evidence to go to trial
What happens during the jury selection?
- 12 jurors for a criminal trial
- 6 jurors for a civil trial
- decision must be unanimous
What happens during the opening submissions?
The crown and defense tell the court what they intend
What happens during examinations?
The crown goes first. The defense follows.
What happens during cross examinations?
- each side examines the other’s witnesses
- they attempt to discredit the testimony of the other side
What happens during summations?
The crown and the defense sum up and give their final plea to the jury
What happens during jury deliberations?
The judge charges the jury. Sometimes the jury is sequestered
What is the verdict?
-guilty
-not guilty
-hung jury
He decision of the jury must be unanimous.
What happens during sentencing?
- the judge listens to the suggestions of the crown and the defense
- the judge uses the criminal code of Canada as a guideline
- if the sentence is two years or more the criminal goes to a federal penitentiary
- less than two years the criminal goes to a provincial reformatory
What is the significance of reasonable and probable cause?
The most important thing police need when making an arrest. A person placed under arrest is deprived of his or her freedom by legal authorities.
What is burden of proof?
The Crowns obligation to prove the guilt of the accused beyond a reasonable doubt
What is reverse onus?
In most criminal cases the burden of proof is the responsibility of the Crown, in that it must convince the jury that the defendant is guilty.
The exception to this process is when the defendant pleads not guilty by reason of insanity. In this situation the defense must prove that the accused is not responsible for his/her actions due to an illness. There are two types:
1) insane automatism
2) non-insane automatism
What is insane automatism?
Automatism caused by a mental disorder (eg. Schizophrenia, depression, multiple personality disorder)
What is non-insane automatism?
A form of automatism caused by an external factor (medication or concussion)
What is direct evidence?
Information given by an eyewitness about the event in question
What is circumstantial evidence?
Indirect evidence not based on personal knowledge
What is abetting?
The crime of encouraging the perpetrator to commit an offense
What is aiding?
A criminal offense that involves helping the perpetrator commit a crime
What is an accessory after the fact?
Someone who knowingly receives, comforts, or assists a perpetrator in escaping from the police
What is conspiracy?
An agreement between two or more people to carry out an legal act, even if that act does not actually occur
What is an appearance notice?
- Rarely used–>usually for minor offenses such as failure to pay a traffic ticket
- involves crimes with no victims
What is attempt?
The intention to commit a crime, even if the crime is not completed
What are the sentencing options?
- Suspended sentence and probation
- Absolute or conditional discharge
- Suspension
- Restitution or compensation
- Restraining order
- Community service orders
- Deportation
- Fines
- Imprisonment
Explain: suspended sentence and probation
- judge believes the convinced person is unlikely to commit another crime an does not go to jail
- the person does have a criminal record
- person placed on probation, up to 3 years, and has to report to a probation officer on a regular basis
Explain:suspension
Many offenses call got a suspension of a social privilege (eg. Suspension of a persons drivers license)
What is restitution or compensation?
a relatively new type of sentence, in which the individual is allowed to repay the victim or society in a meaningful way. It can be in the form of money or work.
What is restraining order?
if a person fears someone will cause harm to him/her or their family, they can petition the court for protection if the circumstances and evidence warrant it
Explain: community service orders
judge orders the offenders to donate certain number of hours to a local organization(eg. food bank) or government project (eg. adult literacy program)
Explain:Deportation
any person who is not a Canadian citizen and is guilty of a serious offence can be deported to their country of origin or another country. The federal government has the authority to do this as well
Explain: Fines
for a summary offence the maximum fine is $2000. for indictable offences fines leveled depend on the seriousness of the offence-but there is no maximum amount
Explain:imprisonment
still one of the most common sentences imposed is prison. The C.C.C. specifies up to 6 months for summary convictions, and from 2 years to life in prison without the possibility of parole for indictable conviction.
Dangerous offenders are guilty of a serious personal injury offence, other than murder, involving the use of violence. These individuals are given indefinite prison sentence and are incarcerated until he/she can show they no longer pose a threat to society.
What is a parole?
parole is a process whereby an inmate is released into the community, usually to a half-way house, on a promise of good behaviour before the full sentence is served. The National Parole Board, which has regional offices across Canada, decides which inmates will be paroled or not. The main consideration for granting parole are:
1) whether the inmate will pose a threat to society
2) whether the inmate will be a law-abiding citizen
All inmates are usually eligible for parole after serving ONE-THIRD of their sentence. However, by law most inmates must be released after completing two-thirds of their sentence- “statutory release’. Exceptions to this are inmates serving sentences for which a set amount of time must be served before becoming eligible for parole (eg: 2nd degree murder–10 years)
What are pardons?
a pardon is when a person’s conviction is sealed by Pardons Canada, a branch of our legal system. Waiting periods vary according to the conviction. For most minor convictions there is no waiting period, while for indictable offences the period is ten years, The pardon remains in effect as long as there are no further criminal convictions
What is a summons?
a legal document issued for an indictable offence, ordering an accused person to appear in court
What is perjury?
knowingly making false statements in court while giving evidence under oath or affirmation
What is an arrest warrant?
a written court order directing the arrest of the suspect
What is bail?
the temporary release of accused who posts money or some other security to guarantee his or her court appearance
What is a plea bargain?
a negotiated deal whereby the accused pleads guilty in exchange for a lighter sentence
What is a victim impact statement?
a statement prepared by a crime victim or the victim’s family describing the harm done or the loss suffered as a result of the offence
What is a search warrant?
a court document that gives the police the right to to search a specific location
What are the 6 purposes of punishment?
- Protection of society
- deterrance
- rehabilitation
- restitution
- denunciation
- retribution
Explain: The Juvenile Delinquent Act
it was passed in 1908 ages covered: 7-18 Three main characteristics of legislation: 1) child welfare approach 2) few legal rights 3) incidents of institutional abuse
Explain: Young Offenders Act
It was passed in 1984
ages covered: 12-18
Three main characteristics of legislation:
1) shift from welfare approach to criminal laws
2) focus on responsibility for actions
3) emphasis on protection of society
Explain: Youth Criminal Justice Act
it was passed in 2002 Ages covered: 12-18 Three main characteristics of legislation: 1) limited use of custody 2) seriousness of offence reflected by sentence 3) judges in youth court can: a) order youth to be tried as an adult b) if convicted impose adult sentences
What are the key parts of the YCJA
- measures taken must be meaningful and effective to make the sentence match the crime
- police are required to consider measures other than custody (i.e. jail) for young people who commit minor offences
- more involvement is required in various stages of the youth trial process by the youth’s family, youth workers, and other members of the community
- youth no longer have to be transferred to adult court to face an adult sentence for a serious offence
- judges are able to impose adult sentences for convictions of serious offences (eg. 1st degree murder)
Explain: Youth Crime–Alternative programs
- victim-offender mediation: an alternative measures program designed to determine restitution. It involves the victim, the offender and a mediator. Purpose is to work out a solution rather than the court process
- Family group conferencing: an alternative measures program in which the victim and offender meet with family members and other concerned parents to determine restitution
- victim offender panels: a panel of victims from other incidents of YCJA violations by an offender. As a group it decides appropriate restitution for young offenders after he/she has been interviewed by panel
- aboriginal sentencing circle: consists of offender, his/her family, victim and his/her family and other members of the offenders Aboriginal community, police officers and a judge
Defenses
Mental state: -mental disorder -automatism -intoxication, twinkie defence Justifications: -self-defence -battered women syndrome -defence of a dwelling -necessity -duress -provocations Other Defences: -mistake of fact -double jeopardy -alibi -entrapment
