soci 327 final Flashcards
Define rule of law
the principle that the law is supreme over any individual or body of government
Who was credited with establishing a more uniform or common approach to justice? When?
King Henry II in 1154
Define common law
an approach to law that is based on tradition, where judges follow decisions or precedents made by other courts
Define precedent
the practice of judges basing decisions about current cases on the outcomes of prior judgements.
Define Magna Carta
written in 1215, established that everybody, even the king, was subject to the law and that all free men had the right to justice and fair trials
Define stare decisis
a legal principle whereby courts are bound by their prior decisions and the decisions of higher courts.
What are the 3 key elements of the Canadian justice system?
presumption of innocence, the burden of proof, proof is beyond a reasonable doubt
Define substantive law
Refers to the rules that define rights and obligations
Define procedural law
focuses on the rules that determine the enforcement of rights or due process
inadequately funded legal aid systems result in:
slower court processes, job losses when suspects are unnecessarily incarcerated, further marginalization of people who cannot fully participate in society
what does section 11 of the charter of rights and freedoms mention
a reasonable time to bring a case to trial
what is a “reasonable time” to bring the case of a serious crime to trial?
30 months from the time the individual is charged until the conclusion of the trial.
what is a “reasonable time” to bring the case of a less serious crime to trial?
18 months
what does section 10 of the charter mention?
everyone has the right on arrest or detention:
a) To be informed promptly of the reasons therefor;
b) To retain and instruct counsel without delay and to be informed of the right; and
c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
define fundamental justice
a principle of Canadian justice that states that people who acted reasonably may not be punished unless there is proof that they did something wrong.
define habeas corpus
the right of a person who is being detained to challenge the legality of his or her detention before a court.
define a crime of omission
an act where the accused has failed to take some action, such as a school social worker failing to report child abuse to child welfare authorities.
define a crime of commission
a criminal act that was actually carried out.
what are the two main elements of a crime that have to occur together?
actus reus and mens rea
define actus reus
The criminal action or conduct of a person committing an offence.
define mens rea
The state of mind of a person committing a criminal act. must establish that the accused did something that he knew was wrong and that the accused intended to commit the crime
define negligence
an act that shows disregard for the wellbeing of others
define reckless behaviours
occur when people act in a manner that they know is dangerous or risky
define willful blindness
occurs when an accused is aware that a crime was likely being committed but chose to ignore the facts
what was the issue in R v Askov? what happened?
trial within a reasonable time, didn’t get charged because it took so long
what was the issue in R v Ewanchuk? what happened?
there is no defence for implied sexual consent. she stopped saying no so he thought it was implied consent but supreme court held that no means no
what was the issue in R v Feeney? what happened?
unreasonable search and seizure. Found evidence that proved second degree murder but he wasnt charged because they didnt have a warrant.
what was the issue in R v Mann? what happened?
police powers when detaining a person as part of an investigation, illegally searched the suspect and found something but charges were dropped because the police didnt have the right to search beyond a pat down.
what was the issue in R v martineau? what happened?
mens rea requirement for murder, adult + 15 y/o, adult killed someone but 15 y/o was also charged, but it was overturned because the youth didnt know it would be violent
what was the issue in R v seaboyer? what happened?
evidence relating to the sexual reputation, seaboyer was not allowed to question the woman he was accused of assaulting about her prior sexual conduct
what was the issue in R v stinchcombe? what happened?
crown duty to disclose evidence to the defence, lawyer was being tried and requested access to all info collected by the crown but the supreme court said no you have to give all the info
define alibi defences
witnesses or other forms of evidence that show that the defendant could not have committed the offence.
what are the two things that alibi defences must be?
adequate and timely
define justification defences
used when the accused admits to committing an offence, but the act was justified under the circumstances
consent justification
A defence that is almost always used by defendants accused of assault, where they contend that the victim was a willing party in the offence
duress justification
the accused people claim that their actions were not voluntary but acts in response to threats from another person
define battered woman defence
a defence that has been used by some victims of domestic violence who argued they had no way of escaping their victimization and had no other choice but to attack their abuser
define entrapment justification
Occurs when police or government officials persuade or lure an individual into carrying out an offence that he or she would not otherwise have committed
when can entrapment defence be made?
after the accused is found guilty
define necessity defence
A type of defence claiming that an illegal act was committed in order to prevent a more serious harm, they had “no choice”
define provocation defence
A defence based on an accused claiming that they were provoked into committing a crime
when can the provocation defence be used?
only to argue that an act of murder be reduced to manslaughter
define stand your ground laws
in the USA, gives people the right to protect their lives and property by using force that would be considered excessive in Canada
define excuse defences
people can claim that their illegal behaviour can be excused based on the defence that they could not form the intent to commit an offence
age defence
A defence that considers immaturity and recognizes that youth under 12 years of age cannot be held criminally responsible
define automatism
An involuntary act where an individual is in a state of impaired consciousness and lacks the intent to commit a crime
what are the two types of mistake defences?
mistake of law and mistake of fact
define mistake of law
When the accused person claims they did not realize they had committed an illegal act
define mistake of fact
When the accused person was aware of the law but honestly believed that the act they committed did not break it
what % of hate crimes are based on race/ethnicity?
43%
what % of hate crimes are based on religion?
41%
what % of hate crimes are based on sexual orientation?
10%
what % of hate crimes are non-violent?
66%
define the open court principle
gives the media the freedom to publicize court proceedings, although some info may be subject to a publication ban
define publication bans
made by courts in order to protect the identity of some victims or specific info about cases
what is the intent of the courts?
to help people resolve disputes fairly- whether they are between individuals, or between individuals and the state
what are the 4 levels of criminal court?
provincial and territorial courts, provincial and territorial superior courts, provincial and territorial courts of appeal, and supreme court of canada
what court do offenders make their first appearance at?
provincial and territorial courts
what court are most cases resolved at?
provincial and territorial courts
what do the provincial and territorial superior courts hear?
family law cases and serious criminal matters
what court level can dismiss the appeal or order a new trial if the court finds that there were serious errors or increase/lower sentences
provincial and territorial courts of appeal
how many applications are sent to the supreme court per year?
460
how many cases does the supreme court hear per year?
56 or 65-80???
what do the police do next if they proceed with laying a charge?
they deliver a package of info to the Crown prosecutor that contains all of the materials relevant to the case
what key questions do crown prosecutors ask to decide whether to proceed with a prosecution?
is there a reasonable likelihood of conviction? is it in the public interest to proceed?
who decides the severity of charges and the number of offences to be prosecuted?
crown prosecutor
how long do they have to bring those who are arrested or detained in for a bail hearing?
24 hours
define justice of the peace
A person who is appointed to carry out judicial functions such as authorizing searches, reviewing the legality of a suspect’s detention, and determining whether there are sufficient grounds for a criminal case to proceed to court
define judicial interim release
bail
define surety
A responsible person, such as an employer or family member, who ensures that the accused will appear in court
where are summary offences resolved?
provincial courts
where are indictable offences resolved?
by a provincial judge without a jury, by a justice from a superior court without a jury, or by a superior court justice and jury
define preliminary hearing
sometimes held to determine whether there is enough evidence to go to trial, protects the accused from an unnecessary trial
how big does the punishment have to be to have a jury?
5 years
define hung jury
when the jury is not able to reach a unanimous decision and they believe that a decision cannot be reached
pre-sentence investigation report
These reports are compiled by probation officers and address the offenders strengths and weaknesses, including their potential for rehabilitation and risk to the public
2 reasons most cases are processed so quickly?
the presence of a courtroom work group and going rate
define going rate
The average sanction or punishment for a criminal offence in a local court, which can vary between different courts
define jury nullification
occurs when a jury refuses to convict an individual who is obviously guilty, as the jury believes that the conviction and punishment are worse than the crime that was committed
define special prosecutors
experienced lawyers who are appointed to investigate offences where government prosecutors might be perceived as biased
define court clerks
responsible for ensuring that a court’s paperwork and records are maintained, creating the court’s docket, and sometimes administering oaths to witnesses
define docket
the list of cases scheduled for court for the day
define specialized courts
courts that specialize in working with distinctive groups of offenders, including people with mental illnesses or individuals convicted of specific offences such as domestic violence
what are the advantages of specialized courts?
o Offender screening and assessment of risks, needs, and responsivity
o Offender monitoring such as drug testing and supervision
o Graduated sanctions and incentives
o Treatment and rehabilitative services
define graduated sanctions
punishments that start with the least restrictive response and then become more severe if the individual continues to reoffend
what % of sentences are probation?
44
what % of sentences are custody?
38
what % of sentences are fines
31
what % of sentences are conditional sentences
3.5
what % of sentences are restitution
2.5
what are the 3 standard conditions in probation orders?
Keeping the peace and being on good behaviour
Reporting to the court when required
Advising the court or probation officer of any changes in address or job
define administration of justice offences
Offences that occur because an individual disobeys a pretrial condition or an imposed sentence, such as failing to attend court or failing to comply with a probation order
define concurrent sentence
Multiple sentences that are served at the same time
define consecutive sentence
Multiple sentences that are served one after the other.
define intermittent sentences
Allow the inmate to serve several days a week (typically on weekends) on sentences less than 90 days long.
define conditional sentences
Custodial sentences of up to two years that are served in the community if they follow strict conditions.
define absolute discharge
The least severe sanction that can be imposed, resulting in a finding of guilt but with no conviction registered
when is absolute discharge appropriate?
Appropriate when the offence is minor in nature or consequence but the individual would lose much with criminal conviction and sentence.
how long is absolute discharge on a criminal record?
1 year
define conditional discharge
Requires the individual to comply with a number of conditions, and after they fulfill those conditions, the discharge becomes absolute.
how long is conditional discharge on a criminal record?
3 years
define extralegal factors
conditions that affect sentencing but are not related to the offence, such as the location of a sentencing court
define proportionality
the principle that the sentence imposed on offenders is proportionate to the seriousness of their offence and their degree of responsibility
define aggravating factors
facts that might lead to a more severe sentence, including if the offence involved a particularly vulnerable victim or if the crime was related to bias, prejudice, or hate
define mitigating factors
facts related to the individual that might encourage a judge to impose a less severe sentence
define totality
where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh
define truth in sentencing
limits the amount of a sentence that can be granted as “time served” when an individual has been remanded prior to sentencing
define determinate sentences
sentences that have a warrant expiry date on which the inmate will be released from jail
define indeterminate sentences
sentences imposed on dangerous and life-sentenced offenders who do not have a formal release date and remain under correctional supervision for the rest of their lives, whether in an institution or in a community
when can 1st degree murder apply for parole?
after 25 years
when can 2nd degree murder apply for parole?
after 10 years
define warrant expiry date
an inmate’s release date from custody
define warrants of committal
documents that authorize an individual’s incarceration
define earned remission
a type of early release from a provincial correctional centre that has been earned by the inmate through good behaviour
define pre-sentence report (PSR)
a report ordered by judges prior to sentencing to provide a comprehensive overview of the individuals strengths and weaknesses, and whether prior justice system interventions were successful
what must a pre-sentence report contain?
o The offenders age, maturity, character, behaviour, attitude, and willingness to make amends
o The individual’s criminal history
o The history of any alternative measures used to deal with the offender, and the offender’s response to those measures
how much money do you need to make to qualify for legal aid?
$14k
what % of family court cases are self represented?
80
what % of civil court case are self represented?
60
what would a conflict perspective maintain about conviction?
that impoverished Canadians are more likely to be convicted and are less likely to put forward successful defences
when is legal aid most available?
when there is a likelihood of imprisonment or the loss of livelihood
define the “burden of the court”
suggests that Canadians who self-represent place a burden on the court system
why do Canadians who self-represent place a burden on the court system
the prosecution and the judge are forced to assist the defendant, slows down the court process.
what did nuffield, meredith, and svoboda discover?
that there isn’t a burden placed on the court, there is an additional burden on the accused
when is the only time the supreme court doesnt have control?
when the justice minister takes over
what are the 2 different standards of proof? (before trial & to convict)
probable cause & proof beyond a reasonable doubt
what did ericson and baranek find?
that 91/131 of accused individuals plead guilty to at least one criminal charge
what is the key role of defence lawyers?
to ensure the rights of their clients are protected
what is the crown prosecutor’s main duty? what case do they follow?
to enforce the law and maintain justice. stinchcombe.
why do crown prosecutors face role conflict?
because there are pressures to successfully convict so they may convict innocents to get their #’s up
what did Gomme and Hall find out?
that crown prosecutors face case overload, 6-10 trials a day.
what % of cases are heard at the superior court level? with a jury
2
what % of accused enter a plea of guilt
90
when are people more likely to plead not guilty
indictable offences
what type of bargaining is a reduction of the charge to a lesser or included offence?
charge
what type of bargaining is a withdrawal of charges?
charge
what type of bargaining is a promise not to charge friends/family?
charge
what type of bargaining is a promise to reduce the # of charges?
charge
what type of bargaining is a promise for the Crown to make a sentence recommendation?
sentence
what type of bargaining is a promise not to seek a more severe penalty?
sentence
what type of bargaining is a promise to proceed summarily rather than by way of indictment?
procedural
what type of bargaining is a promise not to voluntarily enter specific info into the court records?
fact
what type of bargaining is a promise not to seek to classify the accused as a dangerous offender?
label
what is the max punishment for summary convictions?
$5000 and 6 months in jail
define starlight tours
police would drive Indigenous or others outside of their area in the cold to “walk off” how they are acting, then they freeze to death
how many shootings in alberta were investigated? how many charges were laid?
71, 1.
what % of serious offences use pre-sentencing reports?
61%
what did Hagan and Boldt find out about PSR?
that judges use pre-sentencing report recommendations in about 80% of their cases
what did roberts find out?
that people thought punishments were not harsh enough
what % of US participants in Roberts study believed that punishment was the main goal of sentencing?
53%
what % of US participants in Roberts study believed that rehabilitation was the main goal of sentencing?
21
what % of US participants in Roberts study believed that deterrence/incapacitation was the main goal of sentencing?
13
what % of US participants in Roberts study believed that no offender can ever be rehabilitated?
9
what is Bill c-12?
the safe streets and communities act
what does the safe streets and communities act introduce?
mandatory minimums for drug trafficking, sex crimes, child exploitation.
“truth-in-sentencing” laws
require a person to serve at least 85% of their sentence
what % of felony convictions does Huff estimate are incorrect?
0.5%
what is the most common cause of wrongful convictions?
eyewitness error
define presumptive sentences
sentencing guidelines that offer judges a range of penalties for any given convict.
what are the 4 purposes of presumptive sentences?
uniformity, neutrality, truth, control.
in what cases are victim impact statements most influential?
sexual assault and abuse cases.
what model has the federal government been emphasizing recently?
justice model
