Test 1 Flashcards
Name 4 differences between Civil and Criminal litigation
- Bargaining power is different
- Criminal proceedings are commenced via laying an information whereas a civil action is commenced by a statement of claim by an individual or company
- There is a crown and in a criminal case and not civil
- Evidence is strictly by the duty of the prosecutor in a criminal case whereas evidence must be given by both parties in civil case
Who lays an information
A police officer.
How is a civil proceeding commenced?
The issuer, who is the plaintiff commences an action by filing a statement of claim.
What step in taken in a civil matter where all parties must be aware of and what kind of evidence is provided?
Pre-trail where there is discovery of the evidence which allows both parties to prepare for the matter.
What is the difference in providing evidence in a criminal case?
The case is strictly on the complete duty of the prosector and as an individual is not on equal footing with the government.
What is the sharing of evidence in a criminal case called?
Disclosure
Who is the trier of fact in a criminal case?
Judge and/or jury
What is the standard of proof in both a civil and criminal case?
Civil - Balance of probabilities
Criminal - Beyond a reasonable doubt
Describe the Civil process in 10 steps
- Statement of claim
- Discovery
- Mode of trial - SCJ either party can choose judge or judge + jury
- Trial - In-chief, cross-exam and re-examine
- Pre-trial motions
- May bring a motion for non-suit (defence) - directed verdict
- Trial may continue or case dismissed
- Reply or rebuttal evidence
- Submissions
- The trier of fact considers the evidence and decides the case on a balance of probabilities and determines liability and if any damages will be paid.
Describe the criminal process in 11 steps
- Information is laid
- Disclosure is provided to the accused
- Selection for mode of trial
- Trial commences and crown presents evidence first. Ex-in-chief, cross-exam and re-examine
- Pre-trial motions or voire dire’s may arise
- Trial continues and witnesses are called
- A direct verdict may be requested by the defence
- Defense presents their case. Ex-in-chief, cross-exam and re-examine
- Reply or rebuttal may be done by the crown
- Submissions
- The trier of fact which is the judge and/or jury and decides the case to render a verdict of guilty or not guilty
Name 2 ADR’s available in a civil matter
- Settlement Conference
- Mediation
Name 2 ADR’s available in a criminal matter
- Crown resolution meeting
- Voir Dire
What is a prima facie case (civil)?
No duty of care - which results in a non-suit motion
What section of the Human Rights Code is the right to a reasonable time frame to be dealt with in a criminal case?
11(b)
Define Inculpatory evidence
Evidence that incriminates the accused
Define Exculpatory evidence
Evidence that does not incriminate the accused
Who does a plea bargain benefit?
Mostly the crown however it reduces the penalty for the accused
What can a crown do during cross-examination?
Bring up new questions based on cross-examination questions made by the defence
Under what circumstance can a crown counsel bring up the personal information of an accused?
Only if the accused distorts their character or it becomes relevant during testimony
Define adversarial system
A system by which a dispute is resolved by an impartial arbiter after hearing evidence and an argument presented by both parties
What is a fact finder?
Someone who participates in seeking out the truth by investigating and questioning facts
What is it called when there is too much participation from a judge?
Reasonable apprehension of bias
What is the harm in reasonable apprehension of bias?
Too much influence of the jury’s decision
What is the name of the case mentioned regarding the removal of a judge from a matter that acted as counsel?
R. v. Musselmon
Who can be a trier of fact and a trier of law?
The judge
What does trier by ordeal mean?
A trial that ensures that the trier of fact receives the right information
What is a voir dire?
A trial within a trial
What is the purpose of a voire dire when it comes to evidence?
It is an examination to determine admissibility of evidence
What is a charge to the jury?
When the jury os instructed on their duties before deliberations
What is case that involves a charge to the jury?
R.v. Daley
What case involves the hang fire theory?
R. v. Stanley
What does the rules of evidence give us?
Rules about admissibility and exclusion
What is the basic rule of admissibility?
For evidence to be admissible, evidence must meet the basic test of admissibility and avoid being excluded
What section of the charter speaks to admissibility?
Section 8
What is proportionality in sentencing?
A principle
What is excluded evidence?
Evidence that cannot be considered
What is hearsay evidence?
Evidence that is not directly from the source and what a witness may indicated they have heard from another party
What is direct evidence?
Evidence that a witness has seen, smell or heard
What are the circumstances in a voire dire?
- Voluntariness to prove the crowns case
- Disagreement on admissibility
Who determines admissibility?
The judge
What kind of records are acceptable with no need to call the author?
Business records?
What will more than likely trigger a voire dire?
Question of voluntariness?
Does admissibility carry weight?
No
What is the case covered in class that spoke to voluntariness? - (Test of fresh evidence)
R. v. Levesque
What is section 15 of the SPPA?
Evidence
What can tribunals do with evidence?
Limit the evidence
What kind of ADR is available for tribunals?
- Arbitration
- Mediation
- Military Justice
What is air of reality test?
All evidence put to the jury in the totality of the evidence received; The purpose is to protect the jury from non-sensical defences
What is the name of the case that was discussed covering beyond a reasonable doubt?
R. v. Lifchus
Define Relevance
A fact that logically supports a proposition
What is the one criterion of relevance?
Probative value: what is the weight? (admissability and weight)
What is circumstantial evidence?
Inferred evidence
What is something that is considered with circumstantial evidence?
Post offence conduct
What are the two sources of evidence law?
1.Common law
- Statutory law
What is the basic test of admissibility?
- A fact must be both( a) relevant and (b) material to be admitted into evidence, otherwise the fact will be automatically excluded and cannot be considered (c) avoid exclusion (d) a judge must also not decide to exclude
Define material
Material fact relating to the matter in dispute.
What is conditional relevance?
Facts that may be heard in its entirety to be later established as admissable
What must probative value outweigh?
prejudicial effect to be admitted into evidence
What type of evidence is assumed inadmissible?
Hearsay evidence
What are the two factors of the flexibility a judge may have of the rules of evidence?
- The policies behind the rules of evidence
- Each case is examined on its own facts
What are some reasons as to why tribunals have more relaxed evidence rules?
- Liberty interests are not an issue
- Tribunals are filled with experts
- Matters are dealt with expeditiously and are less formal than court proceedings
- Courts are differential to tribunal decision making
What are 3 factors of Section 15 of the SPPA that is considered of admissibility of evidence?
- oral evidence or document must be relevant
- The proposed evidence cannot be privileged
- Cannot be unduly repetitive
What is judicial review?
The right of the court to research and question the validity of any legislation
What is the standard of proof in administrative tribunals?
Balance of probabilities
What are 3 ADR mechanisms
- Arbitration
- Mediation
- Military Justice
What could be a negative factor in mediation?
This may not be a great mechanism to use because if there is a imbalance of power this will not support procedural fairness
What is burden of proof?
A party’s obligation to prove certain facts of an issue
When is the one exception where the burden of proof is on the accused?
Bail proceedings
What area of law does “The thing speaks for itself” come from?
Tort law
What is the hockey strategy?
Speculation based on the personal knowledge of the judge begin rejected
What is judicial notice?
The acceptance of facts without proof that can be (a) accurate based on a reasonable persons and notorious not to be in dispute and; (b) can be immediately and accurately demonstrated
