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Law 30 > Unit 2 Review Questions > Flashcards

Unit 2 Review Questions Flashcards

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1
Q

The four conditions of crime

A

1) The action must be considered to be immoral
2) The action must cause harm to society/individual victims
3) The harm caused must be serious
4) The person must be punished by the criminal justice system.

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2
Q

Differences between illegal and criminal acts

A

Illegal- is an offence not described in the Criminal Code (still breaking the law, but not a criminal law).
Ex: speeding, selling cigarettes to a minor, drinking in public
Criminal- is an offence described in the Criminal Code and federally/provincially regulated.
Ex: murder, theft, assult, drug possession

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3
Q

How Federal and Provincial governments share responsibility for crime control

A
  • laws are created by both federal and provincial governments
  • the federal government creates/amends the Criminal Code of Canada
  • the provinces create/amend the laws for their provinces
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4
Q

Justice does not equal fairness–principles of justice

A

The only real fairness is procedural fairness–accused is treated justly by police, courts, etc.

  • Fairness- trial process has to be impartial to the accused and it has to follow precedent
  • Efficiency- timely court processes
  • Clarity- accused has to understand charges against and the process
  • Restraint- officers of the court have to show restraint
  • Accountability- government officials accountable for actions
  • Participation- accused has to be allowed to contribute to defence/public trial
  • Protection- from harm by officials
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5
Q

Purposes for criminal law

A

1) protect people from harm
2) enforce moral standards of Canadians
3) maintain order in society
4) protect property
5) provide retribution (pay back to balance justice)
6) provide rehabilitation (help criminals and reintegrate them)
7) deter people from committing crimes

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6
Q

Function of the Criminal Code and who controls it

A 
Function
-describes the offences
-sets the penalty
Control
-amended by Federal parliament
-the Supremem Court of Canada makes decisions that influence parliament's decisions
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7
Q

How is criminal law a public concern?

A
  • the power to make federal law is given by the Constitution Act of 1982
  • criminal law may not infringe on Charter rights (legal rights)
  • involves government of Canada against individual accused
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8
Q

How does the Charter protect thsoe accused of offences?

A

The Charter protects people’s rights, similar to court precedents years prior to the Charter, but the Charter entrenched these rights. Only the Reasonable Limints Clause and te Notwithstanding Clause may allow rights to be overridden.
Reasonable Limits Clause- sometimes the way the law is written, it application in this situation is not acceptable. Ex. Mobility rights.
Notwithstanding Clause- the provincial opt out. Ex. Freedom of religion. Can be overridden/violated

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9
Q

What is the benefit of working through a dialectic argument involving a controversial topic?

A

The benefits of working through a dialectic argument involving a controversial topic is that it allows you to go through the process of arguing the “for” and “against” sides, while also revealing the weaknesses of each. it forces the writer to not simply follow their personal beliefs regarding the topic, but dissect it to admit its flaws.

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10
Q

Describe the arguments for assisted suicide and arguments against it.

A

Against:
-protect vulnerable groups in society including:
-innocent, mentally ill, disabled
-protect abuse of legal right to assist
-could lead to abuses of the right
-could mean pressure for disabled people
to die to make room for others/not be a
financial burden
-might lead to a limit of developments to improve care for those who are dying
-some might seek assisted suicide due to insufficinent financial resources
-allowing able bodied people access to the service could result in changes to the law in regards to people who are not able-bodied.
For:
-assisted suicide takes place despite its illegality and is occurring without adequate controls
-as suicide itself is not longer an offence, assisted suicide shouldn’t be either
-increasing close of healthcare as more of the population move into the older age gap
-not allowing assisted shicide infringes on an individual’s equality rights in the Charter
-the law discriminates against disabled people by not giving them access to the care they need
-they want toe same freedoms as others in Canada who have the ability to end their suffering

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11
Q

Describe the conflict between rights of individuals vs. rights of society.

A

In the legal system of Canada, there is an attempt to balance society’s needs with the needs of individuals. At time, though, the individual suffers because the “good of society” is of more importance.

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12
Q

Using the words “Limits, Duty, and Rights”, describe the relationship of the individual and society.

A

Limit- we cannot do things in order to protect society
-hate crimes, stealing, assault
Duty- follow the rules/do what we are obliged to do
-follow speed laws, feed/care for your kids
Rights- right to our own beliefs without being bullied
-right to be protected and safe

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13
Q

Describe two aspects of Sue Rodriquez’s argument that the Criminal Code of Canada was violating her Charter Rights.

A

Criminal Code- Assisted Suicide is illegal (S. 241)
Charter of Rights and Freedoms
1) To be denied the assistance she needed to end her pain, she felt was “cruel and unusual treatment”.
-Charter of Rights: Section 12
“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
2) She cannot take her own life because of her disability (equality).
-Charter of Rights: Section 15
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”

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14
Q

Describe the arguments for and against decriminalizing Prostitution, giving three supports for each side.

A

For:
-checks on the facilities and upkeep, regulated wages and hours
-health requirements and checkups
-taxes paid into federal budget (huge revenue source)
Against:
-rape, murder, drug use
-unhealthy lifestyle (physically unhealthy)
-the law does not reflect the social values of Canadian society

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15
Q

How is an offence being “decriminalized” different from being “legalized”?

A

Decriminalize- remove from the Criminal Code of Canada. Does not mean that peopel can do the formerly illegal act with lack of punishment or freedom of consequence, it means that doing the act will no longer result in jail time.
Legalization- make something that was previously illegal permissible by law.

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16
Q

What are examples of Charter RIghts being violated but in a justifiable way?

A
  • Hate crimes: freedom of expression
  • Assisted suicide: security of person
  • Drug use: lifestyle choice/control of body
  • Obscene images: freedom of expression
  • Possession of drugs: presumption of innocence
  • Polygamy: freedom of religion
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17
Q

IN what ways are summary conviction offences different from indictable offences?

A

Summary Conviction Offence
Offences: minor
Penalty: max fine is $2000 and/or 6 months in jail
Charge: within 6 months of offence
Court: Provincial Court judge
Lawyer: choose to be represented and not appear
Fingerprints: no
Pardon: 3 years after sentence completion
Arrest: police can arrest
Grounds for arrest: police must observe the offence being committed

Indictable Offence
Offences: major
Penalty: Criminal code sets different max/min. Level 1 is max 2 years, level 2 is max 14 years, and level 3 max is life in prison (25 years)
Charge: no time limit
Court: Provincial court judge, superior court judge, or higher court judge and jury
Lawyer: choose to be represented and has to appear if they are
Fingerprints: yes
Pardon: 5 years after sentence completion
Arrest: police can arrest if they witness the event of have a warrant
Grounds for arrest: police need “reasonable and probable grounds”.

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18
Q

How do hybrid offences fit into the types of offences? Give an example.

A

Most offences ar hey rid offences–they can be tried as either summary conviction or indictable offences. The max penalty is 2-10 years. They proceed as indictable by default unless otherwise decided.
Ex: impaired driving, assault, public mischief, theft under $5000

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19
Q

During court proceedings, how is it worded to the judge to indicate which type of offence the prosecution is going forward with?

A
  • Proceed Summarily: proceed as a summary conviction offence

- Proceed by Indictment: proceed as an indictable offence

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20
Q

What factors will determine whether an offence is summary conviction or indictable?

A

Decisions are based on any prior convictions of the accused, how long ago the offence occured, and whether a lesser punishment is warranted.

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21
Q

Compare the procedures of arrest for summary conviction and indictable offences.

A

Summary Conviction
Arrest: police can arrest
Grounds for arrest: police must observe the offence being committed
Indictable Offence
Arrest: police can arrest if they witness an indictable offence occurring or have a warrant
Grounds for arrest: police need “reasonable and probable grounds”

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22
Q

What is necessary to prove someone guilty of an offence?

A

To prove someone guilty of a crime, the prosecution must prove:

  1. That a criminal act occured (actus reus: “wrongful act”)
  2. Accused intended to commit the crime (mens rea: “guilty mind”)
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23
Q

What is meant by the phrase “beyond a reasonable doubt”?

A

What is mean by this phrase is “what a reasonable person would do…”

24
Q

Actus reus means more than “doing” something criminal. Explain.

A

Actus reus includes:
-A voluntary action
-hard or loss to a person/group
-damage to property
-An omission
-failure to act, like when parents do not feed
their kids
-State of being that is prohibited
-being in possession of stolen goods or
break-in tools, or being in a gaming house

25
Q

Give an example of an offence committed where the prosecution could not prove mens rea.

A

R.v. Li, 2009 (Greyhous bus killing)

  • The accused pleaded not criminally responsible
    a) he accepted the offence occured
    b) he claimed he was. Unable to form the necessary mental element (mens rea) intention.
  • He was found not criminally responsible and held in a high security mental health facility for or a long-term treatment. (Until he is not longer a threat or danger to himself).
26
Q

What is the difference between recklessness and criminal negligence?

A

Recklessness- careless disregard for possible results of actions. Consciously taking an unjustifiable risk that a reasonable person would not take. Intent does not need to be proven to prove mens rea.
Ex. Having unprotected sex if you know you have AIDS.
Criminal negligence- this involves a criminal level of negligence, where you caused harm I unintentionally, but it was as a result of the wanton (cruel) and reck;ess disregard for the lives and safety of others. If a ealso able, objective analysis was made and the act would carry risk of harm then the person was negligent.

27
Q

Is motive direct evidence?

A

No, it is indirect or circumstantial evidence.

28
Q

Where does “preparation to commit a crime” end and “the attempt of the crime” begin? Give an example.

A

Preparation ends and attempt begins with the first step toward committing a crime.
Ex. Offence of trafficking drugs
Preparation: buying balloons, buying a plane ticket, getting milk to coat your stomach, buying a laxative to retrieve the drugs, even swallowing the drug grilled balloons.
Attempt: attempt begins as she steps onto the plane (attempted crime of importation).

29
Q

The two words “reasonable” and “foreseeable” are often referred to in criminal law. Why are they so important?

A

Reasonable- both act and intent need to be proven beyone a “reasonable” doubt. The court can only look at facts and what a “reasonable” person would do or believe.
Foreseeable- there are three parts to intent.
1) meant to do it
2) was reckless
3) knew or could “foresee” the results

30
Q

How are aiding and abetting different?

A

Aiding- helping someone commit a crime (makes you guilty of aiding in the crime)
Abetting- giving counsel, advice, or encouraging someone to commit a crime (to incide, instigate, or urge someone to commit a crime)

31
Q

What is the definition of a “criminal organization”?

A

A group equals 3 or more people sharing a common identity. If that group begins to define itself by opposing authority and engage in criminal activity, it becomes a criminal organization.

32
Q

What are types of offences organized crime commonly commits?

A
  • drugs (ecstasy, crystal meth, marijuana)
  • product counterfeiting, money laundering
  • use youth gangs
  • Internet fraud
  • prostitution
33
Q

Explain the situations that lead individuals to be vulnerable to joining gangs.

A
  • alienation (minority)
  • poverty
  • poor education
  • lack of opportunity
34
Q

What are all the levels of court?

A
  1. Supreme Court of Canada
  2. Federal Court
  3. Court of Appeal (Federal and Provincial)
  4. Superior Court
  5. Provincial Court
35
Q

Describe the three levels of courts that exist provincially.

A

1) Provincial Court: Criminal Division
- lower trial court
- 13 Provincial courts in Saskatchewan
- finding facts, witness testimony, introduction of evidence
- arraigned accused (charges read/plea entered)
- preliminary hearings for sever indictable offences
- hears/tries summary conviction cases and the least serious indictable offences
- heard by judges- referred to as “Your HOnour’
- appeals made to higher courts
2) Provincial Superiour Court: Appeals Division and Trial Divisions
- twelve locations in Saskatchewan
- Saskatoon’s Court of Queen’s Bench
- hear criminal and civil cases
- more severe cases tried (manslaughter, murder, sexual assault)
- sets provincial precedent
- judge is referred to as “My Lord” or judge/jury
- hears appeals of summary conviction cases
3) Provincial Court of Appeal
- highest court in province, located in Regina
- final Court of Appeal in province
- heard by 3+ judges: unanimous or majority vote
- decisions released include resasons which are explained by the dissenting judges
- hears appeals from Provincial Superior Court Trial Division
- sets provincial precedent
- 3-5 judges hear appeals

36
Q

How are the Federal Trial Court and Appeals Court different than the provincial courts?

A

The Federal Trial Court hears legal disputes with the federal government.
-Jurisdiction with Federal Government boards, tribunals, commissions, etc.
-Includes cases involving immigration, citizenship, and intellectual property.
Federal Court of Appeals
-Hears appeals of decisions made by Federal Court.
-Decisions can be appealed to the Supremem Court of Canada.

37
Q

Explain the process of a case being heard by the Supreme Court of Canada?

A

Not everyone has the right to appeal to the Supreme Court. It chooses cases of great importance nationally-if it’s an interpretation of law/violation of Charter Rights, etc. Automatic right of appeal in split decision cases from the Provincial Court of Appeals. Also hears appeals from the Federal Court of Appeal. Grant permission for appeals to be heard.

38
Q

Describe the process of “setting precedent” in each province, including which courts may set it.

A

Setting precedent is when a judge reaches a new decision on a case. Similar situations must be interpreted in the same way by all lower courts. the courts that may set precedent are the Provincial Superior Court, Provincial Court of Appeals, Federal Court, and the Supreme Court of Canada.

39
Q

Explain how the appeal process works when they consider a case.

A

The Supreme Court only hears cases of great national importance. If it’s an interpretation of law or violation of Charter Rights. Hear appeals from the provincial Court of Appeals and the Federal Court of Appeals.

40
Q

How are the nine judges of the Supreme Court chosen?

A

They are appointed by the Governor in Council from among Superior Court judges or from among barristers of at least ten years standing at the Bar of a province or territory. There is one Chief Justice and eight justices: three from Quebec, three from Ontario, two from the West, and one from the Atlantic.

41
Q

What is the difference between a suspect and an accused?

A

Once a suspect is charged, they are now referred to as the accused.

42
Q

What areas of the Charter protect people from police officers abusing authority? Give an example of a protection.

A

The areas of the Charter that protect people from police abuse of power is Sections 7-14. An example of a protection would be “Security of the Person” which is the right to be safe from harm (physical, psychological, etc.). It applies to police using excessive force (threats, verbal abuse, etc.) to gain information or a confession.

43
Q

How do police go about obtaining an arrest warrant?

A

If police cannot find Thea caused they go before a judge who gives a summons that is delivered to the accused by a sheriff or deputy of the court. The summons states the accused must appear in court on a set date/time. If police can demonstrate the accused will not voluntarily come, the judge will issue an arrest warrant.

44
Q

Explain the significance of the words “reasonable” and “probable” related to searches.

A

The [p;once Jane to sow a c;ear connection between the criminal offence and the search to show the evidence was evident. They apply to a judge or justice and have to have reasonable and probable grounds that there is evidence of a crime.
Reasonable Grounds- what the average person would believe to be sensible and logical.
Probable Grounds- the connection between the accused and the offence must be probable, not random or assumed on a hunch.

45
Q

What are possible consequences for violating someone’s legal rights?

A
  • Excessive force would result in a criminal or civil assault charge against the officer.
  • Evidence gathered unlawfully is inadmissible in court.
46
Q

What are the three methods of arresting someone?

A

1) Issue an appearance notice
2) Arrest the suspect
3) Obstain a warrant for arrest

47
Q

How is an appearance notice different from an arrest warrant?

A

Appearance notice- this is given if it is believed the accused is not a threat and will show up to a hearing voluntarily. It is given for summary conviction and less serious indictable offences. The notice lists:
-the offences the accused is charges with
-the date/time of the court date they are required to attend
It is issued by a police officer.
Warrant- if police cannot find the accused, and can demonstrate that they will not voluntarily come, the judge will issue an arrest warrant. An arrest warrant includes:
-the name of the accused
-the offences theyare charged with
-an order for the arrest of the accused

48
Q

Why are suspects arrested?

A

Police arrest the suspect in more serious indictable offences and place them into custody. They are arrested in order to:
-lay charges
-preserve evidence
-prevent the accused from fleeing or committing more acts
Any officer can arrest as long as they have reasonable grounds.

49
Q

What are the five steps of the “reading of the caution to the accused”?

A

1) Notice on arrest (officer identifying himself or herself).
2) Advising the accused that he or she is under arrest and the offence charged with.
3) Caution 1, right to counsel (lawyer). “Do yo understand?” This includes the right to free advice from a legal aid lawyer and a phone number to reach such a person.
4) Caution 2, right to remain silent.
5) Physically touching the accused to signify custody (this often involves handcuffs).

50
Q

Explain the process for issuing an arrest warrant and carrying it out.

A

If police cannot find the accused, they go before a judge who gives a summons that is delivered to the accused by a sheriff or deputy of the court. The summons states that the accused must appear in court on a set date/time. If police can demonstrate the accused will not voluntarily come, the judge will issue an arrest warrant. Warrants are not given if police have not provided reasonable grounds.

51
Q

Describe the three levels of policing in Canada along with who pays them.

A

1) Federal: RCMP (paid for by federal government). They are the national police force.
2) Provincial: OPP (ex) (paid for by provinces). Only in Quebec and Ontarion due to the population number/culture.
3) Municiple: City Police (paid for by city - city citizens). They enforce city and criminal laws.

52
Q

How are police reviewed to ensure their conduct is appropriate?

A

1) Legislatively: through statues like the police Services Act.
2) Judicially: through common law precedents.
3) Administratively: commissions oversee conduct and investigate occurrences.
4) Constitutionally: legal rights or citizens are outlined in Section 7-10 of the Charter.

53
Q

What are the possible consequences for not following procedures properly? Give an example.

A

Possible consequences are:
-evidence may be refused, resulting in possible acquittal
-criminal charges
-civil lawsuit against them
Example: The breathalyzer test administered to Alexander Beer’s after he struck and killed 14 year old Satara Steeves was deemed inadmissible after his lawyer argued that he was bullied by police into taking the test.

54
Q

What is the function of the Provincial Police Services Act?

A

Details:

  • duties of officers
  • consequences for failing duties or charges of misconduct
  • procedures for dealing with public complaints
55
Q

Describe some of the tests/samples that may be obtained from an accused. Are these mandatory? Explain.

A

-lie detector tests (polygraph test)
-blood
-urine
-DNA
-breath samples
These tests can all be refused by the accused except:
-the blood/breath samples in impaired driving offences where it is required
-DNA samples may be required with a court issued warrant granting its demand

Law 30 (12 decks)

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