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Law > Unit 4 Criminal Law > Flashcards

Unit 4 Criminal Law Flashcards

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1
Q

What is criminal law?

A

public law acts that are prescribed with criminal acts and has a punishment for these acts

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2
Q

What is a crime?

the three jot notes not the definition

A

anything that is defined as criminal in the criminal code or related federal statutes such as youth criminal justice act, food and drugs act

the crime is usually decided by the parliament - under the jurisdiction of the federal government

criminal code is a reflection of societies’ values and beliefs and so if the value and beliefs shift this pressures the government to do the same

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3
Q

A crime exists when

A
  • the actions harms people
  • actions violates the basic fundamental values of society
  • using the law to deal with action that does not violate the basic values of society
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4
Q

What is Actus Reus?

A

It is a latin term for guilty action or deed

this is a voluntary action which means that it is a conscious action that is done willfully. There is usually a purpose for why its done

actions like having a heart attack while driving is not voluntary because this is something you cannot control

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5
Q

What is omission?

A

failing to do something such as leaving the scene of a crime or even failing to provide the necessities of life

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6
Q

What is state of being?

A

Being in the possession of something illegal or being somewhere illegal, such as betting house

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7
Q

R.V. Parks summary

A

In 1922 the supreme court of Canada upheld the acquittal of Kenneth Parks. He drove approx 20km, stabbed his mother in law to death and seriously injured his father in law. He was charged with murder and attempted murder of his in laws, his defense argued successfully that he was in a state of automatism. He was sleepwalking at the time and therefore acted involuntarily. Cases such as these were regarded as mental illnesses and can be difficult to prove because Actus reus is not present meaning that this was not seen as a voluntary action

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8
Q

What does Mens Rea mean?

A

Latin for guilty mind

includes knowledge, intent recklessness, and willful blindness- the act was intentional and the accused knew it was wrong, reckless, negligent, or willfully blind

can be established by showing that the accused had the intent to commit the offence or knowledge that what he/she did was wrong

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9
Q

What are the 2 types of intent

A

General intent: the accused does not have any ulterior motive or purpose of committing the crime. There was nothing that the accused wanted from the person he hurt or by doing something. For example if josh strikes Scott with a bat because Josh was angry. This is what general intent is

Specific intent: there is some type of ulterior motive or purpose. There is something that the accused wanted to receive or get. For example if Josh hits Scott with a bat in order to steal his wallet. The intent here was to commit robbery in this type of case the crown would have to prove the assault done and the intent of stealing

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10
Q

General intent

A

is easier to prove because this was done without having any ulterior purpose or motive. For example if manslaughter was committed this would be easier to prove then murder which is planned and deliberate

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11
Q

What type of defenses are likely to succeed against specific intent offences

A

intoxication: if someone commits a robbery under intoxication the accused can plea to the judge saying that this was an involuntary action and that the accused did not have any reason for committing the robbery and that the accused did all of this due to intoxication

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12
Q

What is motive

A

is the reason behind what you are doing. This does not mean that you are automatically guilty in the eyes of the law

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13
Q

What is intent

A

intent is the state of mind of why you wanted to commit that offence or even the thought of committing that offence (the willingness to break the law)

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14
Q

What is the doctrine of transferred intent

A

it is an intention of deciding to commit a crime by killing someone but then by accident someone else is killed

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15
Q

Mens Rea Knowledge

A

the awareness of certain facts that can be used to establish mens rea

ignorance can not be an excuse because it is common sense to know what certain actions can lead upto or the consequences of those actions

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16
Q

Recklessness

A

is acting carelessly or not caring at all about the action that the accused or someone is committing. You can not just do something even though you know the consequences but still don’t care about what this can lead into

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17
Q

wilful blindness

A

you know the truth but you decide to ignore the truth and follow the wrong path because that is what seems right to you at the moment

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18
Q

Subjective standard

A

the accused knew the circumstances of his or her actions. This has to deal with intent and as to what the intent/ the purpose of the intent was

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19
Q

Objective standard

A

did the accused know about the circumstances of his or her actions. This has less to deal with accused’s actual state of mind

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20
Q

What is absolute liability and strict liabilty

about mens rea

A

This is used when there is no mens rea present so the crown only has to prove the actions

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21
Q

Absolute liabilty

A

guilt is present

it follows the mere who is doing the prohibited act

for example: if you’re driving without a drivers license you are automatically guilty cause its common sense and you have been told this

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22
Q

Strict Liability

A

is when the judge decides to leave a little space or gap due to the fact that the judge wants to make sure that you took proper care and took your due diligence so that you did your best into not committing that crime or offense

Such as offences that deal with the environment

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23
Q

List the criminal offence classification

A

a) the power of arrest for a citizen or police
b the rights of the accused
c) how the trial will proceed (in which court) and
d) what penalty will be imposed

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24
Q

Summary conviction offences

A

are minor crimes in which you can be arrested or that the court has the right to summon you (does not have a preliminary trial or even a jury)

this includes all provincial violation such as traffic laws

there is usually fines and prisonment

it can be upto $2000 fine or 6 months prison

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25
Q

Indictable offences

A

are crimes that are major crimes and are serious such as murder

the judge has the ability to press charges against you indictable charges

as well as place other charges that are involved in the case

some crimes do have minimum punishments

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26
Q

Hybrid offences

A

are crimes that are both summary and indictable

the judge can chose what category it can fit into either summary or indictable

first time offences are often seen as summary conviction offences

for example: if someone steals goods over $5000 then this would be seen as an indictable offense

but if someone steals something for less than $5000 then this would be summary offense

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27
Q

What does the government give in return when citizens trust the government for enforcing and making a criminal law

A

Peace and security

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28
Q

Is criminal law same everywhere? True or false

A

True

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29
Q

What is the purpose of criminal law

harmful or potentially harmful

A

control and prevent certain actions or conduct that the society believes is harmful or potentially harmful

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30
Q

What is retribution in terms of today

A

is the public denouncement of wrongful behavior that is fair

so the punishment based on the wrongful behavior is fair

this supposedly delivers justice because it reaffirms social values

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31
Q

What is protection of society

A

justified use of criminal law in accordance to the 5 principles of justification

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32
Q

What is private harm principle

A

prevention of harm to individuals and their property

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33
Q

What is public harm principle

A

preventing actions that challenge government authority and institution

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34
Q

What is offence principle

A

prevention of offence to others/personal revenge - such as deterring a parent from avenging the killer of their child (personal revenge)

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35
Q

What is legal paternalism

A

prevention of harm to oneself such as possession of drugs, assisting suicide, or prostitution

idea of government as a father figure

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36
Q

What is legal moralism

A

expressing and enforcing morality

criminal code is a reflection of what society beliefs and values

some offences shift with the changing attitudes and values of society

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37
Q

What is a white collar

A

it is an illegal characteristic of deciet, concealment, or violation of trust that is often depended on threat or physical use of violence

often used by the higher class

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38
Q

What is blue collar

A

it is a crime that is done by the lower class

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39
Q

What are white collar crimes

A

fraud such as insider trading or security related funds such as ponzi scheme

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40
Q

What are the 2 elements of fraud

A

1) the conduct of dishonesty and deciet
2) deprivation of someone’s property or the risk of losing someone’s property

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41
Q

What is abiding

A

person is linked to the crime and helps the perpetrator

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42
Q

What is abetting

A

person is encouraging the perpetrator but is not there to physically help with the crime

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43
Q

What is counsellor

A

person who advises, recommends, and persuades someone to conduct a crime

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44
Q

Conspirator

A

it is one or more then one who is in charge of planning a crime

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45
Q

Perpetrator

A

the person who does/commits the crime

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46
Q

the accessory

A

a person who encourages, aids, and renders the perpetrator but is not directly linked to the crime but does play a part

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47
Q

the accessory after the fact

A

a person who receives comfort by a parties of an offense in order to help the person escape

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48
Q

Procurer

A

an individual who obtains, plans, details, items, or persons to commit or assist in the commission of a crime

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49
Q

What are the two types of homicide and explain each type

A

Culpable homicide:
- blame
- manslaughter
- murder
- infanticide
- three categories of murder:
- 1st degree, 2nd degree which has a max of 25years
- manslaughter which has a max of 14years

Non Culpable homicide:
- no blame
- accident
- self defense

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50
Q

Define homicide and include mens rea

A

killing of a person directly or indirectly

mens rea matters a lot in homicide because of the fact that there needs to be some type of intent or motive present to figure out the accused reason and state of doing whatever the accused did

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51
Q

What is Culpable homicide

A

it is an act where someone is blamed for a murder that has happened

usually two classes 1st degree murder and 2nd degree murder

these acts are culpable because they are planned, deliberate, and there is a thought behind them

if someone kills a police officer, peacekeeper, or even a prison guard they will be automatically charged with 1st degree murder

52
Q

What is 2nd degree murder

A

not first degree murder
not planned or deliberate
often referred as “in the heat of the moment”
such as a fight at the bar

53
Q

What is manslaughter

A

it is the killing of a person directly or indirectly
all you need is general intent
the law has a category for manslaughter because they need to fit a crime somewhere if its not 1st degree or 2nd degree
often indictable offences
there is provocation, negligence, or recklessness

54
Q

What is Infanticide

A

killing of an infant from 1 to 6months
usually done by parents or guardians
can receive up to 5years of prison

55
Q

What is non culpable homicide

A

where a blame is not attached

these are often accidents where there is no explanation as to how it happened

these are acts that are unfortuante events that happen unintentionally

no perpetrator and mens rea is not present

victim would usually not get any type of reimbursement unless if they want to then it would be a civil litigation process

if an accident is foresseable then it would come under manslaughter

an accident does not have negligence or recklessness

this can often include self defence:
- not a strong defence used in court
- it is a justification in terms of a criminal act
- no mens rea present

56
Q

What is the first level of assualt

A

the first level of assualt is:
- hybrid offence the penalty is 5years in prison
- touching someone directly or indirectly without their consent
- include using threats by body language or gestures and the use of weapons or the imitation of carrying weapon
- the first level has no body harm done to the victim

57
Q

What is assault level 2

A
  • causes bodily harm
  • these can be either hybrid or indictable and prison is 10years
  • this can include all elements of level 1
  • can cause serious body harm by someone
  • the intent is to harm someone not to intimidate
  • can use weapon
58
Q

What is assualt level 3

A
  • an indictable offense for 14years in prison
  • include disfiguring, maming, harming, or even endangering a victims life
  • the sentence can extend upto life in prison because of the seriousness of this crime
59
Q

What is the criminal justice process and the criminal case process

A

a lot of cases don’t get to see the inside of the trial room

the criminal case process:
- investigation needs to happen
- the crown prosecutor makes sure that there is concrete evidence against the alleged
- the crown attorney later gets notes from the police (discretion)
- if this does not happen there maybe a mis trial and trials are expensive

60
Q

What is a pre trial?

A

it is a method used before even going into the hearing for things such as the plea bargain, or the guilty plea

61
Q

What is the trial process

A
  • plea trial
  • lawyers meet
  • defer of motion (happens at the beginning of trial)
  • arrangement: the accused charges are read before a judge and not a jury
  • date is set for trial
62
Q

What does the crown and defense trial look like?

A
  • crown/defense makes an opening statement
  • present some sort of evidence (physical or withness)
  • Crown summation - summary of the case
  • done to create a reasonable doubt
63
Q

What does after trial look like

A
  • jury goes over case
  • jury should deliberate in what they say
  • jury should then decide the verdict (end of responsibility)
  • judge goes over the verdict
64
Q

What are non trials

A

plea bargain: the accused states a plea bargain to be able to make the sentence less

Guilty statement: the accused states that they are guilty and there is no trial

65
Q

What is evidence

A

is information that tends to approve or dispprove the fact that is the accused actually the one who committed the crime. This can be in forms of physial, witness, or forensics

66
Q

What is forensic evidence

A

it is a scientific method of collection evidence

the scene must be secure so that only an investigator is allowed to enter and be able to collect and examine evidence

the SIU is then able to examine the little details and try to reconstruct the crime scene to figure out what actually happened

67
Q

What is procedure and chain of custody

A

it is the knowledge for record sake for any type of witness, recording, details, time, date, or even the circumstances of a person who had control over the evidence

68
Q

What is direct evidence

A

someone was physically present to witness the offense

69
Q

What is circumstantial evidence

A

is the witnessing of events prior to or after the act that happened. There is no witnesses but there needs to be small pointers to the person who did the crime

70
Q

What is similar fact evidence

A

is the fact that the person on trial or the person who committed an offense has committed a similar offense in the past

71
Q

What is heersay evidence

A

evidence that is not used in the court a lot

it is usually a testimony done by someone else other then the witness

72
Q

What is an opinion evidence

A

usually a testimony given by credible people such as doctors, police, or even workers

they are credible because they provide scientific knowledge, and facts

also they have no interest as to what will happen to the accused

73
Q

What is character evidence

A

evidence that is used in court where people related to the accused are called in trial

this may not be used a lot because it can create a lot of biasness

but also the fact that the court is then able to use that fact to understand the mind of the accused

74
Q

What is physical/forensic evidence

A

evidence that is left at the crime such as blood, hair, skin tissues, any type of DNA

this can also include body harm such as fingerprints, knife wounds, scratches, ballistics and much more

photos are allowed if they give accurate representation

audio tapes or even video recording are only permissible if there is some type of warrant because this does breach a person’s privacy so the person who has the video should give it to the police for further investigation

75
Q

What are other factors that are considered towards prisons that a judge can give

A

fines
house arrest
conditional or absolute discharge
probation

76
Q

What doe a judge take into factor for sentencing

A

a judge takes into factor the goals of sentencing, principles of sentencing, perspectives, as well as aggravating and mitigating factors

77
Q

What are the goals of sentencing

A

denunciation
deterrence
reparation
rehabilitation
promotion of responsibility
separation of offenders

78
Q

What are the principles of sentencing

A
  • there needs to be some sort of proportionality to the crime done and sentence given
  • if the sentence is consecutive then it can’t be harsh or long
  • similar offences need to have similar verdict
  • no one can be deprived of their liberty and if they are then there needs to be less action for the sanctions
  • sentences should be reduced or increased based on mitigating or aggravating factors
  • judges must consider every sanction possible other then prison to make sure that they have ruled out all other options and this goes particularly towards aboriginal offenders
79
Q

Difference between mitigating and aggravating

A

mitigating: makes it less harsh

Aggravating: makes it more harsh

80
Q

What are some aggravating factors

A

hate
violence
discrimination
abuse towards someone who is below 18
breach of trust and authority

81
Q

Aggravting and Mitigating factors for offenders

A

aggravating:
pre-meditation
previous criminal record
ring leader of a group

mitigating:
impulsive act
guilty plea
cooperating with police

82
Q

Aggravating and mitigating for the offence

A

Aggravating:
violent offense
number of victims
deterrence

Mitigating
minor offense
time spent in custody
delay in trial

83
Q

What is discharge

A

the most lenient crime
given to first time offenders as well for people who are in prison for less then 4 years
two types of discharge absolute and conditional

84
Q

What is absolute discharge

A

releasing a criminal completely and then removing their crime from their criminal record after 1 year

85
Q

What is conditional discharge

A

discharge given to criminals under certain circumstances of things like curfew and their record is erased after 3 years

86
Q

Probation

A

given to criminals who are allowed to stay and do things in society within supervision of a parole officer their are terms they need to follow:

  • showing good and peaceful behavior
  • come to court when asked
  • need to tell the court for any changes such as name, address
87
Q

What is suspended sentence

A

if certain requirements are met then judgement is not passed out

often given to first timer or minor offences or offences that have a min punishment

still in your criminal record

88
Q

What is intermittent sentence

A

is given to criminals who can serve a prison sentence for less then 90 days only on night and weekend

is often given to people who have steady employment or their family relies on them

when not in prison they are on probation

89
Q

What is conditional sentence

A

a criminal has to serve a prison sentence for less then 2 years on certain conditions

often given to people who have min penalties for the punishment

they can serve in the community or get treated

90
Q

Electronic monitoring

A

when their is a bracelet given to a criminal and they have to wear that bracelet so that the officers can know the criminals’ whereabouts

91
Q

What is restitution

A

a person who has to pay the victim for property damage or personal loss

its a community service

92
Q

Binding over

A

this is not a sentence at all because their is no crime imposed

often used to deal with disputes

you have stay 12 months with good behavior and if you don’t then you break the peace bond and can get a sentence

93
Q

Deportation

A

is given to people that commit a serious indictable crime and the country has to deport them back to where they came from

not given to Canadian citizens

94
Q

Fines

A

a specific amount that needs to be paid to a person

failure to pay can cause a prison sentence

95
Q

Suspension of privilege

A

an opportunity or privilege that is taken away such as a driver’s license

96
Q

What is incarceration

A

is given to criminals who need to serve a prison sentence for a specified set of days

not given to people who have a min penalty/punishment of five years

97
Q

What is closed custody

A

detention under constant guard

98
Q

What is open custody

A

detention is required but has opportunity to work/serve the community

99
Q

Indeterminate sentence

A

dangerous offenders

have to serve for life in prison

Homolka Case

100
Q

Concurrent sentence

A

serving a sentence at the same time with another sentence

101
Q

Consecutive sentence

A

Serving a sentence one after another

102
Q

Capital Punishment

A

death sentence
abolished

103
Q

Conditional release

A

offenders are able to step into society with full supervision

all offenders are given the right to treatment, or even rehab

known as escorted and unescorted absences

104
Q

Day parole

A

criminal on parole during the day and comes back at night

often given to people who are in prison for life

105
Q

Full parole

A

complete release from custody under full supervision

guaranteed after 1/3 of sentence is served

106
Q

Faint hope clause

A

a hope that they will be released before eligibility

107
Q

Accelerated review

A

offende’s eligibility to be released

108
Q

What is Audi Alterum Partem

A

to hear the other side

109
Q

What is a negative defense

A

there is some type of doubt if you even committed the offense

includes things such as
intoxication
mistake of fact
mental disorder
automatism
mistake of law

110
Q

What is mistake of fact

A

it is an honest mistake that is done

there is no mens rea present for the offense because it was a simple mistake

example: R. v. Burgess [1970]

the accused was convicted of possession of opium,
even though he believed the drug was hashish.

The mistake of fact defence failed because the accused
was still knowingly in possession of a controlled or
illegal substance, just not the one he thought he had.

it can not be used in sexual assault by saying that “oh i thought i had consent” or if the other person was intoxicated

this is recklessness and wilful blindness

111
Q

What is mistake of law

A

ignorance of law

where a legal advice is given but it may not be correct advice or something may go wrong and so if you follow that advice it becomes part of mistake of law

Example: Ann is waiting for her husband in his car which is parked in a
no-parking zone;

An officer approaches Ann and advises her that if the vehicle is not
moved immediately it will be towed;

In their discussion, the officer finds out that Ann’s licence has been
suspended.

Ann believes that the officer has given her permission to drive her
husband’s car to the parking lot which is one block away.

On her way to the lot, Ann is stopped by a different police officer ,
who charges her with driving a motor vehicle with a suspended
licence.

In this circumstance, the court may acquit Ann if she can prove that
she honestly believed the first officer was advising her to move her
car to the parking lot from the no-parking zone.

112
Q

Intoxication

A

mens rea maybe would not be able to exist in intoxication

because the person is unable to form specific intent

they are not in full control of their body

there is exception: when a person drinks a lot and it forms a mental disorder

R.V.Deviault case:

Deviault sexually assualted a 65 years old women who was partially paralyzed and Deviault did not know what was happening when in court he was aquitted because he was not in full control of his body and unable to form specific intent

If a murder happens during intoxication then it goes to manslaughter

113
Q

Mental disorder

A

a person who is going through a mental disorder cannot be acquited because they are unable to prove the specific intent part and mens rea

they must also be mentally fit in order to go through trial

the defence would have to consider two requirements to actually see if the person did not know the consequences of the crime they were commiting such as asking: would you commit the same crime if a police officer was next to you- if a psychopath is able to reasonably answer this question then they know the consequences of their action and there fore there is some type of intent

the 2nd requirement is that the person suffering through a mental illness thinks that what they’re doing is wrong that they don’t know that the act or omission was wrong

the judge may give them absolute discharge, conditional discharge, or even a term in psychiatrics hospital

114
Q

What is insane automatism

A

it has been proved that they are suffering through a mental disorder and there fore they will be acquitted but maybe not released back in society

115
Q

What is Non insane automatism

A

formed by an external factor such as concussion, or even medication

they will be acquitted

R.V. Parks

116
Q

What is affirmative defence

A

a defense where someone can be excused from serving a sentence due to criminal conduct

such as self defense

117
Q

What is defense dwelling

A

to remove a person from trespassing by using some sort of force

118
Q

Provocation

A

can reduce your sentence to manslaughter if it can be proved

119
Q

Necessity

A

can be used for the fact that what the person did was necessary for their safe means

120
Q

Duress/compulsion

A

a person was forced to commit an act because of a threat of their family or their life

the threatener must be present during that time

121
Q

Alibi

A

is the best defense

only thing that needs to be proved is where the accused would have been at that time and if there were any witnesses around that time

122
Q

Corporal punishment

A

justification of hitting a child by a parent or guardian

123
Q

Entrapment

A

the accused was set up by someone else and did not even mean to do anything. This can include deceit, and fraud, or even dishonesty

124
Q

Double jeapordy

A

cannot be tried for the same offense

Autrefois Acquit: the accused states that he or she has been acquitted

Autrefois Convict: the accused states that he or she has been convicted

125
Q

Affirmative

A

is when the defense brings in a new type of statement or a fact that is not mentioned before

Law (4 decks)

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