Studied by 32 people
Rule of Law
Every country has its own laws and may be enforced differently
In canada, we are governed by the “rule of law”
The rule of law means every dispute will be settled by peaceful means, namely “due process” in the courts before judges
The rule of law has a 3 part principle of justice stating the following
1. The law is necessary to regulate society
2. The law applies equally to everyone including people in power
Police officers, judges and political leaders must follow the law just like everyone else
3. People are not governed by arbitrary power
This means that people's legal rights will not be taken away except in accordance with the law
Defining Justice
Law v Justice
Law is a set of rules, impartially applied, meant to regulate human behavior and resolve disputes
Justice has more to do with how the law is applied rather than the substance of the law
Justice is often linked to the concept of fairness and equality
Law is a ‘thing’ that can be seen, read, identified
Justice is a concept that is much more difficult to identify
What is Justice
Moral principle that determines what is just, equitable and morally right based on ethical, political, environmental ad religious beliefs and values
Keeping intact the foundations of our democracy including upholding the law
According to Merriam Webster “Justice is the use of law and being fair”
Law is basically a set of rules that define what is right and what is wrong, while justice also takes into consideration the circumstances that surround the situation
The idea of justice is also often linked to our own set of values and morals
Sandel’s Theories of Justice
Michael Sandel, professor of history and philosophy at Harvard is one of the most prominent figures in thinking and writing in justice
Purpose of Justice
“Civilized” society is measured by the degree by which laws perceived as “just”
Concept of an “eye for an eye” as punishment and “trials by ordeal” have been used throughout early history of laws and considered appropriate methods of judgment
Modern society’s sense of justice and fair play are offended by this
Natural Law
Philosophical basis of law
Something is forbidden because it is wrong, being unsuitable to our human nature
The theory that human laws come from eternal and unchangeable principles that regulate the world
We become aware of these natural laws through reason (they do not have to be legislated)
Examples
Mother taking care of her newborn, we help those in need
There does not exist a moral imperative in the law
Positive Law
Working of the law through the authority of the state
something is wrong because it is forbidden
Law is a body of rules formulated by the state the citizens are obliged to follow for the good of the state
Examples
Speed limit laws
Paying taxes
Not parking in a designated fire route
The written law of a particular society at a particular point in time
There is no moral imperative to the law
No duty to consider moral senses of the time
Jurisprudence
Science or philosophy of law
Deals with concepts, notions and principles of legal thought
A way of “thinking” about law
Allows for exploration of origins of laws and legal institutions which leads to an ability to understand principles upon which laws are founded
“There’s so much to laws rather than just verdicts”
Primary Sources of Law
Parts of the legal system that have the longest historical development and represent the systems cumulative values, beliefs and principles
Examples
Religion and morality
Historical influences
Customs and conventions
Social and political philosophy
Secondary Sources of Law
Consists of laws and reported cases that have been written down by various law makers
Examples of Law Makers
Legislators and judges
Examples of Laws
Constitution
Statute law
Case law
Can be defined in a pyramid
The Pyramid of Law
3 levels of constitution that make up the pyramid
Constitutional Law
Body of laws that deals with the distribution of government powers and sets out certain important legal principles
This type of law sets out the distribution of powers between federal government and the provinces and embodies certain important legal principles
Statute Law
Any law passed by the federal or provincial governments
Statutes take form of a written bill that has to pass three readings in the House of Commons
Many times the bill is revised before the third and final reading to take into account responses from the public or from opposition parties
Cse/Common Law
Case laws are bodies of law formed by judges rendering written decisions or explanations for their ruling
Changes in Law
Factors that cause changes in the Law
Usually laws change due to broad shifts in society that occur over a period of time
Examples
Demographic change (official language legislation, maternity leave and public daycare, etc)
Technological change (internet rights, powers of the media, etc)
Changes in values (penalties in drunk driving, gay marriage, etc)
National emergency (personal privacy, pandemics, etc)
How change is influenced
Pressure for changes to the law can come in a few different ways
Formal
Royal commissions
a board of inquiry appointed by the government to investigate and report on a particular issue
Law reform commissions Canada
Informal
Individual Actions (activists)
Collective Actions (protests, political parties, media, etc)
Legal Formalism
A legal formalist would say that all law is established and it is simply the role of the courts to discover the appropriate rule and to apply it
The application of legal precedent to new cases gives certainty and predictability to law
Treats law like math or science
Legal Realism
All law derives from prevailing social interests and public policy
Opposed to legal formalism considerations
Thought of as a naturalistic approach to law
Jurisprudence should emulate the methods of natural science
It should rely on empirical evidence and hypotheses that have been tested against the reality of the world
Rather than rely on theoretical assumptions about the law
Marxism
Economic and political theory that states law is an instrument of oppression and control that the ruling cases use against the working class
Feminist Jurisprudence
Women's liberation movement in the 60s that states the theory that law is an instrument of oppression by men against women
Based on the political, economic, and social issues of gender equality
Began in the 1960s
Holds a significant place in U.S. law and legal thought and influences many debates
Examples
Sexual and domestic violence
Inequality in the workplace
Disability rights
Issues of discrimination
Feminists have identified gendered components and gendered implications of seemingly “neutral” laws and practices
Laws impacting employment, divorce, reproductive rights/abortion, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.
Restraint of Power
Selznick’s concept that law is a predictable restrain of power, rather than a full exercise of it
Need an independent body (judicial branch) that challenges, reviews and limits laws
Criminal vs Civil Law
Cause of Action
The legal basis of pursuing legal action
Civil Law - damage, injury, custody, etc
Criminal Law - offence, theft, murder, etc
Parties and Filing
Who are the two parties?
Civil Law - two individuals (plaintiff and defendant)
Criminal Law - involve the state (Crown Attorney) and the defendant
Burden of Proof
The legal duty of the initiating party
Civil Law - Low burden of proof (based on a balance of probabilities “50% or more likely that the claim is true”)
Criminal Law - High burden of proof (“without reasonable doubt”)
Remedies
The way in which defendants pay for their wrong doings
Civil Law - compensations to the plaintiffs
Criminal Law - fines, incarceration, probation, etc
Morality
Public Morality
Considered the ‘police powers’ of government
Goals of protecting public health, safety and morals
Examples
Prohibit or restrict prostitution, pornography, and other forms of sexual vice, gambling, cruelty to animals, and the recreational use of drugs
Private Morality
An individual's personal beliefs and values about what is right and wrong
Not necessarily influenced by societal norms or laws
Example
A person may believe that lying is always wrong, even if it is for a good cause
This belief is part of their private morality and may not be shared by everyone in society
Equality
What does Equality mean?
Few people would dispute that ALL individuals should be considered and treated equally
Equality has long been considered an essential ingredient of justice
However, the idea of creating a society in which all people are provided identical rights, opportunities and treatment i neither practicable nor desirable
Examples
Young offenders, the mentally ill, english/french language rights, affirmative action programs, etc
Such forms of preferential treatment are normally considered appropriate because they serve morally and socially desirable goals in our society
The Argument
On one side, people think governmental measures to reduce inequalities stifle human initiative and, in some cases, interfere with individual liberty that is essential to a free and democratic society
Discrimination
Discrimination is an action or a decision that treats a person a group negatively for reasons such as their race, age or disability
These reasons are known as grounds of discrimination
Justice cannot be interpreted as always treating everyone equally
Examples
Punishments for crimes
Licensing to fly/drive
Therefore a degree of differential treatment is inescapable and sometimes desirable
Discrimination has become synonymous with prejudice/unfair treatment
Defining Law
A series of rules that govern the relationship between individuals
Rules that govern the state or country
Rules that govern the relationship of business and other association that exist in society
The purpose of Law
Aids in avoiding and settling disputes and provide remedy for losses
Sets our rights and obligations of citizens
Maintains orders and protects people and property
Sets up the structure of the government
Law is constantly changing
As societies and culture change, their values and morals change
Examples
Gay marriage laws, abortion laws, etc
Rules vs Laws
Rules are guidelines to be followed
Examples
Curfew, dress codes, etc
Laws are rules enforceable in court that are made by government
Citizen cannot opt out of laws and they apply to everyone
“All rules are not laws but all laws are rules”
Law can be divided into 3 contexts (Legal Concept, Legal System, Set of Rules)
Procedural Law and Justice
Fuller’s concept of procedural fairness when dealing with a country’ laws
Steps involved in administering substantive law
Ex. Conducting searches, releasing suspects and arresting
Substantive Law and Justice
Lists the rights and responsibilities of each citizen
Rights come with specific responsibilities
Rights end where they infringe upon another’s
Any law that controls, guides or impacting behavior in any way
Ex. Drive on the right side of the road
Is further divided into Public and Private Law
Public Law
Controls the relationship between governments and the people
Divided into 3 sections
Criminal Law
Rules that define a “crime”
Main purpose is to punish offenders and protect society
Examples
Crimes
First degree murder, second degree murder, manslaughter and treason
Sentencing
Consecutive sentences, concurrent sentences and parole
Constitutional Law
The body of rules regulating the functioning of the state
Limits of governmental power
Administrative Law
Controls the relationships between citizens and governmental agencies
Examples
LCBO, CRTC
Private Law
Outlines relationships between individuals
Purpose is to manage conflict and pay damages to those who have been wronged
Defines Plaintiffs and Defendants
The 5 types of Private Law
Family, Tort (Injuries), Contract, Property, Labour (FTCPL)
Substantive and Procedural Law Differences
Formal Justice Jurisdiction
Substantive Justice - substantive justice seeks to ensure that the rules themselves are fair
Procedural Justice - jurisdiction lies in the procedural domain of following rules
Certain Cases
Substantive Justice - specifies what cases count as alike
Procedural Justice - treats like cases alike
Application
Substantive Justice - complex task of ascertaining exactly what is fair
Procedural Justice - easy to apply to all laws, fair or not, applying equally to everyone
Guarantee of rights and freedoms - Section 1
Reasonable limits clause
Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society
Section 1 is engaged only after a finding has been made that a right or freedom has been limited
The onus of proof under section 1 is on the person seeking to justify the limit, which is generally the government (Oakes, supra)
The standard of proof is the civil standard or balance of probabilities (Oakes, supra).
Applies to all governments – federal, provincial and territorial – and includes protection of all laws
Oakes Test
used to determine if legislation should be struck down, declared invalid, read in, given exemptions etc
used to establish that a limit/infringement of a right/freedom is justified under a piece of legislation, 3 main criteria must be met
1. objective must be prescribed by law (part of a statute, law or regulation and within the jurisdiction of the level of government that passed it) also must be clear and accessible to citizens
sometimes not even considered a criteria because it is so obvious
2. the objective of the limiting measures must be “sufficiently important”
must relate to concerns that are “pressing and substantial”
3. the government must show that the means/way chosen to effect the right(s) limited are “reasonable and justified”
there are 3 important parts to this proportionality test
the 3 main parts to the proportionality test
1. rational connection
measured used to limit, must be carefully designed to achieve the objective in question
2. minimal impairment
measures used should impair the right/freedom as little as possible
3. proportionate effect
must balance between the effect/consequences of the measure/limit and the objective being sought
ex. the more severe the limit/infringement, the more important the objective must be
Fundamental freedoms - Section 2
Everyone has the following fundamental freedoms:
a) freedom of conscience and religion
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
c) freedom of peaceful assembly
d) freedom of association
Freedoms are set out in the Charter to ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely to other people
Democratic rights - Section 3 - 5
Section 3 guarantees to all Canadian citizens the right to be involved in the election of their governments
Right to vote in federal, provincial or territorial elections, along with the right to stand for public office themselves
Limits to Canadians 18 years of age or older
Section 4(1) ensures no legislative assembly shall continue for longer than five years from the date fixed
Basic principle in a democracy that a government must consult the voters and stand for re-election at regular intervals
No Parliament or legislative assembly can continue to sit for longer than five years
Section 4(2) ensures in the state of emergency and acceptance, it is possible for HOC to continue beyond 5 years
In time of real or apprehended war, invasion or insurrection, a legislative assembly may be continued by Parliament beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the legislative assembly
Only under extraordinary circumstances, such as a war or national emergency, may a government stay in office for a longer period than 5 years
Section 5 ensures there shall be a sitting of Parliament and of each legislature at least once every twelve months
Basic democratic principle is that a government must explain its actions to the people
Legislative assemblies must hold a session at least once a year
Guarantees that elected members and the public have a chance to question government actions on a regular basis
Mobility rights - Section 6
Protects the right of Canadian citizens to move from place to place
Section 6(1) ensures that every citizen of Canada has the right to enter, remain in and leave Canada
Section 6(2) ensures that every citizen and every person who has the status of a permanent resident of Canada has the right:
a) to move to and take up residence in any province
b) to pursue the gaining of a livelihood in any province
Section 6(3) states that the rights specified in subsection (2) are subject to
a) These rights can be affected by provincial laws or practices, as long as they don't unfairly treat people based on where they live.
b) These rights can also be influenced by laws that require residency for certain government-provided social services.
Section 6(4) allows a province or territory that has an employment rate below the national average to create programs that favour its own residents
Legal rights - Section 7 - 14
Sections 7 to 14 set out rights that protect Canadians when dealing with the justice system
they ensure that individuals who are involved in proceedings are treated fairly, especially those charged with a criminal offence
Section 7 ensures everyone has the right to life, liberty and security of the person
Requires that governments respect the basic principles of justice whenever they intrude on those rights
Section 8 ensures everyone has the right to be secure against unreasonable search or seizure
Protect a reasonable expectation of privacy
Those who act on behalf of a government must carry out their duties in a fair and reasonable way
Section 9 ensures everyone has the right not to be arbitrarily detained or imprisoned
Government officials cannot take individuals into custody or hold them without a good reason
Section 10 ensures everyone has the right on arrest or detention to the following
a) to be informed promptly of the reasons why you’re being arrested
b) to retain and instruct counsel without delay and to be informed of that right
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Habeas corpus is a legal principle that protects people from being unlawfully detained or imprisoned
Persons under arrest also have the right to ask a judge to decide whether their arrest was legal and, if it was not, to order their release
Section 11 ensures that any person charged with an offence has the right to the following
a) be informed without unreasonable delay of the specific offence
b) to be tried within a reasonable time
c) to not be forced to testify
d) to be presumed innocent until proven guilty
e) to not be denied reasonable bail “without good reason”
f) to have the option of trial by jury
g) to be convicted based off current law (marijuana)
h) to not be tried for the same incident twice (double jeopardy)
i) to have benefit of the lesser punishment
Section 11 sets out several important rules that protect anyone charged with an offence under federal, provincial or territorial law
Section 12 ensures everyone has the right not to be subjected to any cruel and unusual treatment or punishment
Prohibits cruel and unusual treatment including torture, excessive or abusive use of force by law enforcement officials
Section 13 protects witnesses who testify in court from having the evidence used against them in later court proceedings (self incrimination)
This right is suspended if it is found that the witness has lied (perjury), if charged, evidence can be used against them
Section 14 ensures any party or witness in any proceeding has the right to the assistance of an interpreter
Persons who are hearing impaired or do not understand or speak the language being spoken in court have the right to be assisted by an interpreter
This right applies regardless of which language is involved
Equality rights - Section 15
Section 15(1) ensures that every person is equal under the law and has the right to equal protection without discrimination based on race, nationality, color, religion, gender, age, or disability
Governments must not discriminate on any of these grounds in its laws or programs
Section 15(2) ensures that laws or programs aimed at helping disadvantaged groups, including those disadvantaged due to race, nationality, gender, etc., are still allowed
Allows for certain laws or programs that aim to improve the conditions of disadvantaged individuals or groups
Enforcement - Section 24
Section 24(1) ensures anyone whose rights guaranteed by this Charter have been violated may go to court to seek a fair remedy
Anyone who thinks their rights under the Charter were violated by any level of government can go to court for a remedy
Persons must show which right was violated
If there's a limit to the right in the law, the government can argue it's reasonable
If the court disagrees, it can grant a suitable remedy
Section 24(2) states that if a court finds that evidence was obtained in a way that violates rights guaranteed by this Charter, it must be excluded from proceedings if admitting it would harm the administration of justice
Application of the Charter - Section 33
Section 33 requires any government that wishes to pass laws that limit Charter rights to say clearly what it is doing and accept the political consequences
Aka the “notwithstanding clause”
Permits governments (fed or pov) to override certain rights and freedoms that are guaranteed by the charter
Overriding the charter allows governments to pass laws even if taking passing any such legislation violates charter rights
Limitations
May only be used on sections 2, 7-14 and 15
Any use of section 33 only has a lifespan of five years or less
After that, courts may strike down or re-enact laws that were previously protected
Notwithstanding Clause - Section 33 (advantages)
ensures parliamentary supremacy
the limitation of a five year term means that the threat to individual rights is not substantially great
governments infrequent use of s.33 shows respect to the rule of law, showing fear its frequent application would eventually destroy the charter and the judge’s role in interpreting and applying it
Notwithstanding Clause - Section 33 (disadvantages)
does not apply to the whole charter, but it does apply to a very large number of the rights and freedoms
the clause has broken the stability and reliability created by the charter
due to its existence there’s no substantial difference between having a charter or not and that worried the people’
Composition of the Constitution
constitution contains 2 parts
division of powers and responsibilities
federal
provincial
municipal
the charter of rights and freedoms
Provincial Courts
first level of the canadian court structure
provincial courts try most criminal offences, money matters and family matters
in private law, cases involving breach of contract or other claims of harm
provincial courts may also include specialized courts such as
youth courts
family courts
small claims courts
Federal Courts
second level of the canadian court structure
intellectual property
protection of ideas, inventions, etc
maritime law
protection of hunting, resourcers, etc
federal-provincial disputes
provincial pricing, taxes, etc
terrorism
tax court
federal court of appeal
reviews the decisions of both these courts
in face, it is the highest court of the land for about 95% of all cases
Supreme Court of Canada
third level of the canadian court structure
represented by 9 judges
3 must be from ontario
3 must be from quebec
3 must be from the prairies
superior courts are divided into two levels
trial level
appeal level
the trial level courts hear civil and criminal cases
supreme court
the court of queens bench
sc of justice
Bill of Rights vs Charter
The Charter
came into effect April 17, 1982 as part of a law called the Constitution Act, 1982
sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society
preceded by the Canadian Bill of Rights, which was enacted in 1960
The Bill of Rights
only a federal statute, rather than a constitutional document - it was limited in scope, was easily changed by Parliament, and it had no application to provincial laws
the ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada
Plea Bargains - Advantages
guarantees a conviction
can be used to obtain evidence against other people who have committed much more serious offences
prevents victims from having to testify
saves time and money involved in conducting a trial
Plea Bargains - Disadvantages
confessions may be done to pressure implicated on to accused
length of sentence may be too light in the eyes of the public
can lead to poor police investigations and attorneys who do not take the time to properly prepare their cases
Pre-Arresting Procedures
officer must determine crime has been committed and must have reasonable belief that the suspect committed the offence
arresting officer has 3 options
give an “appearance” in court notice
arrest suspect
issue a warrant for arrest
appearance in court
it names the offence and the accused
used for less serious crimes
summary offences
hybrid offences
officer must “swear in” information to a judge
officer must have reasonable grounds and judges are not required to grant request
reasonable grounds are physical evidence, witness testimonies, etc
warrant for arrest
if accused flees the scene, the officer can swear in information to a judge
a summons is given for the accused to appear in court at a certain time and place and will be delivered to the accused by a sheriff or a deputy
if it can be proven that the accused will not show up in court voluntarily, the judge will issue a warrant for arrest
name the accused, the offence, and orders the arrest
other definitions
citizens arrest
crime in front of or done inside an area where you own
Arresting Procedures
suspect is arrested and taken into custody
several elements must occur upon arrest
officer(s) must identify themselves
advise the accused they are under arrest and inform them of the charges
identify the right to counsel
purpose of arrest is to lay charges, preserve evidence and prevent accused from committing further offences
Sureties and Bail
when bail is set to an offender, someone called a surety may pay the bail and will be required to attend to the following
ensure that the accused attends court as required until the case is over
ensure that the accused abides by the conditions of their release, including any reporting, curfew and non-contact clauses
be the “jailer” of the accused as he or she must provide some measure of supervision over the accused’s daily activities
must maintain daily contact with the accused
criteria of sureties
the following persons would not be acceptable to be a surety
co-accused, minors, people who are already sureties for another person, counsels for the accused, non-residents of the province, victims of accused (spouses who are complainants in a domestic assault)
Jury
The Jury
is made up of 12 people
chosen by BOTH the crown and defence
after the trial, they withdraw to the jury room to deliberate
decision must be UNANIMOUS
if not = hung jury
Jury Selection
random selection from Ontario Health Insurance Plan (OHIP) records
a group of potential jurors is called a jury panel
the accused comes before a judge and jury panel during the arraignment
the 1st stage of a trial where the court clerk reads the charge and the defendant enters a plea
if not guilty, jury selection begins under supervision of the judge
Jury Selection Process
1. people names are randomly selected
2. when name is called, that person goes to the front of the court and faces the accused
3. both the crown and defence can object to a potential juror by challenging him/her
4. a challenge for cause, the right of the crown or defence to exclude someone for a particular reason
ex. suspicion the juror has already formed an opinion, cannot physically perform their duties
each side has unlimited challenge for cause
5. peremptory challenge
crown or defense can still reject suitable jurors without providing a reason (2019)
6. the jurors take the jurors oath
Trial by Jury - Advantages
Jurors become more aware of the justice system
Legal conflicts are resolved by peers
The jury reflects the conscience of society
The jury brings a fresh perspective to the courtroom
Legal precedents may be challenged
For the accused, only one juror has to be convinced of his or her innocence to be acquitted
For the accused, jurors may empathize with the charge
Trial by Jury - Disadvantages
Juries cost money, especially if they must be sequestered for a long time
Jury verdicts may rest more on persuasive lawyers than on facts and law
Jurors may be unduly influenced by factors such as the attitude or appearance of the accused or the nature of the offence
A judge presents reasons for her or his decision, a jury does not
Forms ground for appeal
Reasons for Objections
leading questions
question that suggests to a witness a particular answer. It is not allowed during direct examination and during cross examination, it is allowed only if it pertains to previous testimony.
hearsay statements
evidence given by a witness based on info received from someone else rather than personal knowledge. Inadmissible in court! NOT ALLOWED.
argumentative questions
this objection is made when counsel begins arguing with a witness, badgering a witness or becoming overly aggressive.
opinion statements
A witness cannot be asked their opinion on something unless they are an expert in the field.
Types of Evidence
direct evidence
testimony by a witness to prove an alleged fact (eye witness)
circumstantial evidence
indirect evidence that leads to a reasonable interference of the defendant's guilt to be admissible, the defendant’s guilt must be a conclusion drawn from the evidence
character evidence
establishes the likelihood that the defendant is the type of person who either would or would not commit a certain offence
electronic surveillance
admissible provided wire tapping or bugging was authorized beforehand by judge
privileged communication
communication that cannot be presented in court as evidence (communication between spouses, doctors, lawyers, etc)
similar fact evidence
attempts to show the accused has committed similar offenses in the past
confessions
accused persons acknowledgement that the charge, or some essential part of it is true
2 types of confessions
inculpatory - on admission to the crime
exculpatory - on denial to the crime
Mens Rea and Actus Reus
Proving Guilt
to prove an accused guilty, the crown must establish 2 elements existed at the time of offence
actus rea - prosecution must prove that the person acted with corresponding criminal intent in order for it to be a crime
mens rea - defendant physically committed the act in question
Criminal Intent
Refers to the person’s mind, state and motivations that may be connected to the physical acts
General Intent
most crimes require general intent, meaning that the prosecution must prove only that the accused meant to do an act prohibited by law
Specific Intent
it typically requires that the defendant intentionally commit an act AND intend to cause a particular result when committing that act
typically, it is more difficult to prove specific intent crimes
Indictable Offenses
More severe crimes (violent crimes)
Punishments include potential substantial fines, lengthy imprisonment or both
Can be prosecuted by Jury or Judge
Indictable offenses often show on one’s record causing long-term implication
can impact employment, traveling abroad and much more
Summary Offenses
Less severe crimes (non-violent crimes)
Punishments include potential small fines, community service or short term imprisonment or all
Can be prosecuted only by Judge
Summary offenses often show on one’s record however, offenses may be pardoned much sooner than indictable offenses
can still impact employment, traveling abroad and much more, just for a lesser amount of time
Hybrid Offenses
Hybrid offences can be tried as either summary offences or indictable offences
This means the Crown uses the specific facts of each case to decide if to prosecute the case as a summary offence or as an indictable offence
Most notable examples are thefts under $5000
Sentencing
absolute discharge - no fine or sentence, no criminal record
conditional discharge - the offender is placed on probation for a certain time in which they must follow specific conditions
fine - certain amount of money must be paid within a certain amount of time
conditional sentence - sentence served in a community under strict conditions (the guy in to kill or to cure)
custodial sentence - sentence of jail time
provincial correctional centre = under 2 years
federal penitentiary = over 2 years
suspension of a privilege - taking away licenses
intermittent sentence - offender serves “chunks” of time rather than all at once
Sentencing Procedure
Accused pleads or is found guilty
Pre-sentence report by probation officers, victim impact statements (all optional)
Offender sentenced by judge to A, B or C
Release
Absolute discharge or Conditional discharge
Alternative to Imprisonment
Suspended sentence, Probation, Fines, Compensation, Suspension of Privilege, Community Service
Offender then released on completion of sentence
Imprisonment
Provincial corrections (sentence of less than 2 years)
Federal corrections (sentence for 2 or more years)
Offender may be released on conditional release programs
Temporary absence, day parole, full parole, mandatory supervision
Offender may then complete their sentence on these terms
Sentencing Considerations
Factors impacting a judges sentencing
Have the laws been preserved or violated under the charter
Does the crown have overwhelming evidence against the offender? Acting on behalf of society?
Has the defence provided information on any special or extenuating circumstances?
Is there information in the pre-sentence report such as the accused’s moral character, etc?
Does the offender have a criminal record?
Is a plea bargain present? Satisfactory to the judge?
Is there public pressure to send a message to society?
Does the correctional facility have the resources for rehabilitation for the offender? Support groups?
Should the offender be put in penitentiary (punish) or reformatory (nurture) institutions?
Has the offender been in custody before the trial? How long should be taken off the sentence?
Has the offender accepted responsibility for their actions?
Are there any case precedent (other similar cases to refer to)?
Criminal code? Mandatory minimum?
Risk of reoffending?
Victim impact statements?
Criminal Defences
there are 2 categories of defences
full defence - can acquit the accused altogether
partial defence - may only reduce the charge
accused can put forth 3 arguments
1. the crime did not happen (lacks actus reus)
2. they lacked intent (lacks mens rea)
3. any other valid excuse (lacks either mens rea, actus reus or both)
types of defences
negating defence - proves lacking of one or more of the essential elements of the prosecution’s case (mistake of fact, mental disorder, automatism)
affirmative defence - eliminates responsibility despite all the elements of the offence having been made out (self defence, compulsion/duress)
Full Defences
alibi
best possible defence
proves the accused was not present, states where the accused was, uses a witness to verify
self defence
CCC permits you to defend yourself, people under your care and property based on necessary and reasonable force
proves the accused had a reasonable fear of death/bodily harm and all other options were exhausted
legal duty
those who break the law to perform their occupation (cops, ambulances, etc)
necessity
urgent cases where compliance with the law is demonstrably impossible (extremely hard to prove)
duress
proves the accused committed an offence under the threat of immediate death/bodily harm
automatism
aims at removing mens rea, must prove the offence was committed in a state of mental disorder
2 types of automatism
insane automatism - mental disorder, disease of the mind
non insane automatism - sleepwalking, intoxication, strokes
consent
valid defense where the actions are reasonable, cannot be used for murder or for offences against minors
mistake of fact
deals with ignorance of the law based on what is reasonable to expect from the public
double jeopardy
cannot be tried twice for the same crime
atrefois acquit - already acquitted of the charge
autrefois convict - already convicted for the charge
Partial Defences
provocation
may be used as a partial defence for violent crimes only
must be an unlawful act or an insult of such nature that an ordinary person would lose self control
1. serious act or insult
2. cause someone to snap
3. snap must be immediate
intoxication
relates to intent
can reduce murder to manslaughter
drunk persons are criminally liable for general intent offences
Jury and Jury Challenges
challenge for cause
excludes potential jurors for particular reasons
examples
suspicion the juror has already formed an opinion
cannot physically perform their duties
has been convicted of a serious offence
peremptory challenge
has been changed since sep 19, 2019 (effected by R. v. Stanley, 2018)
allows both crown and defence to exempt jurors without reason
Criminal Forensics
3 types of fingerprints
arches, loops, whorls
forensic anthropology (bones) reveals sex, age, time of death, cause of death
facial reconstruction (clay over bones) reveals identification
blood spatters (angles and shapes of blood) reveals crime scene story
entomology (bugs) reveals time of death, geological history
odontology (dental science) bite marks
pathology/coroner (autopsy) reveals causes of death
criminal profiling (criminal minds!!!) predicts personality/behaviour of suspects
Defining International Law
international law governs the relationship between states (countries)
a “state” is a group of people that are:
recognized as an independent country
has territory ruled by a sovereign (independent) government that can enter into relationships with other states
sovereignty: a nation’s absolute right to govern itself
International Law is Based On…
customary law
casual agreements
treaty law
legally binding agreements
resolutions
fast agreements
Customary Law
states that developed practices that are followed conssitently & which are not obligatory
customary law is formed from these practices
not normally written down in formal codes
ex. holiday, family traditions
examples
recognition
freedom of the seas
self defence
humanitarianism
Treaty law
these are binding, written agreements that state the rights and/or obligations to each other
deals with a wide range of matters
territory
geographical agreements
arms control
nuclear weapons
extradition
international punishment
international trade
goods
bilateral
2 country agreement
multilateral
multiple country agreement
Resolutions
considered “soft law” as they do not have the force of the previous 2 types (not considered binding)
advantages
drafted quickly
can become a platform to develop a treaty from later on
Diplomatic Relation
some of the oldest rules of international law deal with diplomatic protection
ambassadors and representatives travel the world regularly and embassies are found in most major world cities
Diplomats
a diplomat is someone who is appointed by a nation state to represent and protect that nation’s interests abroad
forms and maintains international relations with regards to issues of peace and war, trade and economics, culture, the environment, and human rights
negotiate treaties and international agreements before they are officially endorsed by any politicians
has the ongoing responsibility of collecting and reporting information that could affect national interests, and is often in a good place to give advice about how the home country should react
Diplomatic Immunity
fundamental rule in the Vienna Convention is “the person of a diplomatic agent shall be inviolable”
meaning: diplomats are entitled to protection from physical harm and not subject to arrest or detention without recourse to the rules of international protocol
the embassy is also involiable
the Vienna Convention also extends this right of non-interference to
files, documents, containers holding mail/other documentation travelling to and from an embassy, or any other means of communication
Crimes Rising due to Diplomats
drug smuggling
selling duty free liquor
avoiding legitimate debts
impaired driving causing death
if caught committing crime and the diplomat must stay in the foreign country, they will be considered Persona non Grata
in diplomacy, the term persona non grata literally meaning “Person of no Status” refers to a foreign person whose entering or remaining in a particular country is prohibited by that country’s government
Extradition
Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country
Between countries, extradition is normally regulated by treaties
Extraditable Crimes
serious criminal offence
a crime committed in Canada or within Canadian jurisdiction that is specifically listed in Schedule 1 of the Extradition Act
therefore only those offences listed within a treaty with another state will be recognized as extraditable
usually for sentences 2+ years
double criminality rule
serious crimes that are under the laws of both the states concerned (eg. narcotics, hijacking)
although states are not required to identify offences by the same name, the offences must be similar or comparable in substance
Grounds for Refusal
nationality
many countries will not extradite their own nationals for crimes committed in other countries
in such cases the country will prosecute rather than extradite
canada has not adopted this policy
instead, a fugitive will be handed over to that country which claims jurisdiction over the offence rather than on the bases of nationality
political offenders
no international definition exists as to what constitutes a “political offence”
to deny extradition of a fugitive on these grounds is left up to the requested state to determine
non bis in idem
if a fugitive has already been prosecuted, sentenced or released by the requesting state for the same offence
capital punishment
canada has the right to refuse the extradition of a fugitive to a requesting state that has the death penalty for the offence which the fugitive is escaping unless assurances are given by the requesting state it will not be imposed
Note
Flashcard