Unit 4 Criminal Law Flashcards
What is criminal law?
public law acts that are prescribed with criminal acts and has a punishment for these acts
What is a crime?
the three jot notes not the definition
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
A crime exists when
- 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
What is Actus Reus?
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
What is omission?
failing to do something such as leaving the scene of a crime or even failing to provide the necessities of life
What is state of being?
Being in the possession of something illegal or being somewhere illegal, such as betting house
R.V. Parks summary
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
What does Mens Rea mean?
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
What are the 2 types of intent
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
General intent
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
What type of defenses are likely to succeed against specific intent offences
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
What is motive
is the reason behind what you are doing. This does not mean that you are automatically guilty in the eyes of the law
What is intent
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)
What is the doctrine of transferred intent
it is an intention of deciding to commit a crime by killing someone but then by accident someone else is killed
Mens Rea Knowledge
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
Recklessness
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
wilful blindness
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
Subjective standard
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
Objective standard
did the accused know about the circumstances of his or her actions. This has less to deal with accused’s actual state of mind
What is absolute liability and strict liabilty
about mens rea
This is used when there is no mens rea present so the crown only has to prove the actions
Absolute liabilty
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
Strict Liability
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
List the criminal offence classification
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
Summary conviction offences
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
Indictable offences
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
Hybrid offences
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
What does the government give in return when citizens trust the government for enforcing and making a criminal law
Peace and security
Is criminal law same everywhere? True or false
True
What is the purpose of criminal law
harmful or potentially harmful
control and prevent certain actions or conduct that the society believes is harmful or potentially harmful
What is retribution in terms of today
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
What is protection of society
justified use of criminal law in accordance to the 5 principles of justification
What is private harm principle
prevention of harm to individuals and their property
What is public harm principle
preventing actions that challenge government authority and institution
What is offence principle
prevention of offence to others/personal revenge - such as deterring a parent from avenging the killer of their child (personal revenge)
What is legal paternalism
prevention of harm to oneself such as possession of drugs, assisting suicide, or prostitution
idea of government as a father figure
What is legal moralism
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
What is a white collar
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
What is blue collar
it is a crime that is done by the lower class
What are white collar crimes
fraud such as insider trading or security related funds such as ponzi scheme
What are the 2 elements of fraud
1) the conduct of dishonesty and deciet
2) deprivation of someone’s property or the risk of losing someone’s property
What is abiding
person is linked to the crime and helps the perpetrator
What is abetting
person is encouraging the perpetrator but is not there to physically help with the crime
What is counsellor
person who advises, recommends, and persuades someone to conduct a crime
Conspirator
it is one or more then one who is in charge of planning a crime
Perpetrator
the person who does/commits the crime
the accessory
a person who encourages, aids, and renders the perpetrator but is not directly linked to the crime but does play a part
the accessory after the fact
a person who receives comfort by a parties of an offense in order to help the person escape
Procurer
an individual who obtains, plans, details, items, or persons to commit or assist in the commission of a crime
What are the two types of homicide and explain each type
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
Define homicide and include mens rea
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
What is Culpable homicide
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
What is 2nd degree murder
not first degree murder
not planned or deliberate
often referred as “in the heat of the moment”
such as a fight at the bar
What is manslaughter
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
What is Infanticide
killing of an infant from 1 to 6months
usually done by parents or guardians
can receive up to 5years of prison
What is non culpable homicide
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
What is the first level of assualt
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
What is assault level 2
- 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
What is assualt level 3
- 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
What is the criminal justice process and the criminal case process
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
What is a pre trial?
it is a method used before even going into the hearing for things such as the plea bargain, or the guilty plea
What is the trial process
- 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
What does the crown and defense trial look like?
- 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
What does after trial look like
- 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
What are non trials
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
What is evidence
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
What is forensic evidence
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
What is procedure and chain of custody
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
What is direct evidence
someone was physically present to witness the offense
What is circumstantial evidence
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
What is similar fact evidence
is the fact that the person on trial or the person who committed an offense has committed a similar offense in the past
What is heersay evidence
evidence that is not used in the court a lot
it is usually a testimony done by someone else other then the witness
What is an opinion evidence
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
What is character evidence
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
What is physical/forensic evidence
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
What are other factors that are considered towards prisons that a judge can give
fines
house arrest
conditional or absolute discharge
probation
What doe a judge take into factor for sentencing
a judge takes into factor the goals of sentencing, principles of sentencing, perspectives, as well as aggravating and mitigating factors
What are the goals of sentencing
denunciation
deterrence
reparation
rehabilitation
promotion of responsibility
separation of offenders
What are the principles of sentencing
- 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
Difference between mitigating and aggravating
mitigating: makes it less harsh
Aggravating: makes it more harsh
What are some aggravating factors
hate
violence
discrimination
abuse towards someone who is below 18
breach of trust and authority
Aggravting and Mitigating factors for offenders
aggravating:
pre-meditation
previous criminal record
ring leader of a group
mitigating:
impulsive act
guilty plea
cooperating with police
Aggravating and mitigating for the offence
Aggravating:
violent offense
number of victims
deterrence
Mitigating
minor offense
time spent in custody
delay in trial
What is discharge
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
What is absolute discharge
releasing a criminal completely and then removing their crime from their criminal record after 1 year
What is conditional discharge
discharge given to criminals under certain circumstances of things like curfew and their record is erased after 3 years
Probation
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
What is suspended sentence
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
What is intermittent sentence
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
What is conditional sentence
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
Electronic monitoring
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
What is restitution
a person who has to pay the victim for property damage or personal loss
its a community service
Binding over
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
Deportation
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
Fines
a specific amount that needs to be paid to a person
failure to pay can cause a prison sentence
Suspension of privilege
an opportunity or privilege that is taken away such as a driver’s license
What is incarceration
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
What is closed custody
detention under constant guard
What is open custody
detention is required but has opportunity to work/serve the community
Indeterminate sentence
dangerous offenders
have to serve for life in prison
Homolka Case
Concurrent sentence
serving a sentence at the same time with another sentence
Consecutive sentence
Serving a sentence one after another
Capital Punishment
death sentence
abolished
Conditional release
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
Day parole
criminal on parole during the day and comes back at night
often given to people who are in prison for life
Full parole
complete release from custody under full supervision
guaranteed after 1/3 of sentence is served
Faint hope clause
a hope that they will be released before eligibility
Accelerated review
offende’s eligibility to be released
What is Audi Alterum Partem
to hear the other side
What is a negative defense
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
What is mistake of fact
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
What is mistake of law
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.
Intoxication
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
Mental disorder
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
What is insane automatism
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
What is Non insane automatism
formed by an external factor such as concussion, or even medication
they will be acquitted
R.V. Parks
What is affirmative defence
a defense where someone can be excused from serving a sentence due to criminal conduct
such as self defense
What is defense dwelling
to remove a person from trespassing by using some sort of force
Provocation
can reduce your sentence to manslaughter if it can be proved
Necessity
can be used for the fact that what the person did was necessary for their safe means
Duress/compulsion
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
Alibi
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
Corporal punishment
justification of hitting a child by a parent or guardian
Entrapment
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
Double jeapordy
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
Affirmative
is when the defense brings in a new type of statement or a fact that is not mentioned before
