LS 101 Midterm 2 (addition)

What is Social Order?

Society is organized according to sets of rules and standards

The Consensus Model, How is Society Held Together?

System of common values which lend legitimacy to government and transforms power into authority

Basic Principles of The Consensus Model - committed

Social order is based on consensus and people are committed to a unifying set of values

Basic Principles of The Consensus Model - Satisfaction

People obtain personal satisfaction and status from conforming to society's norms and values

Basic Principles of The Consensus Model - Agree

Law Reflects the collective will of the people and Members of society agree upon basic definitions of rights and wrong

Basic Principles of The Consensus Model - Equally

The law serves all people equally

Basic Principles of The Consensus Model - Disorder

The model explains disorder in reference to improper socialization

The Pluralistic Model

a framework that acknowledges the presence of multiple interest groups and organizations in society, each with their own distinct goals and views.

Pluralism and the Legal System 

The legal system is value-neutral and exists as a value-free framework in which disputes can be settled fairly and peacefully

The Conflict Model - coercion theory

Social order result of power and coercion

Conflict, Crime & Disorder 

Results from competition for power and scarce resources & class conflict

Crime control model

focuses on having an effiencent system, with the most important function being to suppress & control crime to ensure that society is safe and there is public order

• foundational base

• traditional model based on BNA Act 1867 which enstores peace, order, good government

Liberty v Protection - what does CCM do? What do we give up? what do we gain?

Society relinquishes degrees of liberty in order to gain protection from crime and from those who disrupt the social order

Liberty in democratic society 

Liberty in a democratic society is always constrained

Value Orientations - The Police

Trust in law enforcement, positive role, CCM (corruption, crime and misconduct)

Police powers

Police operate upon a presumption of guilt and Police must be given resources

End v Means CCM

CCM emphasizes social order, punishment, deterrence of criminal conduct concern for victims and victims rights

Efficiency as priority 

Concerned with efficiency in the operation of the criminal process

The due process model

The greatest threat to our freedom comes from the misuse of power and authority

Police powers - DPM

Power must be severely limited and monitored

Police and Rule of Law - DPM

Police must operate under the strict rule of law

Quality control

• demands a formal, adjective, adversarial process headed by an impartial tribunal, judge, and or jury

• Model stresses the possibility of error and bias particular against minorities and the poor 

• Mistakes can happen - mistakes are used as evidence to argue that the process needs reform and increasing vigilance 

Legal guilt v factual guilt DPM

DPM emphasizes legal guilt as opposed to factual guilt and Concerned with whether or not the police and Crown can prove their case and whether or not their client’s rights have been respected

Means vs Ends DPM

The emphasis is on the means (the process by which the system operates) as opposed to the ends( convicting criminal and maintain order)

Obvious benefits of due process

Upholds legitimacy in the legal system and holds police accountable and DPM protects ordinary individuals in their jobs

Critique of due process

Rights of individuals are prioritized over the rights of society and responsibility of citizens

Extension of judiciary powers - critique of DPM

The judiciary are not accountable nor are they representative of ‘in tune’ with the diverse needs and values of Canadian constitution

Shift in Canadian Values

Greater endorsement and deployment of due process and Police are less likely to abuse authority

The Reliability Model

Joining of force between police, Crown and defense, victims and judges

Major Changes to investigate Procedures

Reforms advocate to reduce number of wrongful convictions, adopting ‘truth-seeking’ values Improving eyewitness identification

CCM

defense counsel viewed as impediment to processing the guilty

DPM

key to asserting and protecting defendants rights

Institutional Bias

RCMP does not allow for errors

Use of photocopies

Only in extreme cases, should a copy be allowed for analysis and Liberty is at stake

Bench Notes

Expert notes were not disclosed or placed in evidence

Corroborating Expert Witnesses

Becomes constituted as inadmissible hearsay and Crown only relies on the hearsay testimonial

Partial Print (Omissions)

Partial prints leave open possibility that there is exculpatory evidence overlooked or unseen

Subjective Certainties

Exclusion principle: uniques does not mean its a match and Must be sure exclude other matches

Previous FPE in AFIS

Older print on file possibly a better match but not used to make the positive identification

Unexplained Discrepancies

Gaps in low tolerance areas of print (eg, continuous ridge v ride, gap, ridge break) between latent and known

FPE and Burden of Proof

Mental illness, you have to prove that you actually are disabled and Criminal proceedings, burden lies on crown to prove beyond a reasonable doubt

Judicial interpretation of common law system

Cases were assembled based on likeness and common custom or experience

Customary Law

System built upon shared understanding of experience within socio-cultural context of common everyday customs

The Rise of Stare Decisis

Growing pursuit of a rational legal system and Judges not to make law; engage legal rationale

Main sources of law

The constitution (1867 - 1982), Statutes/Acts, Judge-Made Law

Precedent

The Charter of Rights and Freedoms (1982) and Canada Evidence Act (1985)

The Constitution of Canada( 1982)

Legal document; major impact on criminal law and Outlines rules of governance

The Charter of Right and Freedoms(1982)

Embedded in constitution and Outlines rights of citizens and protection against unjust laws

Formal Equality

Enumerated rights → life, liberty → race, gender

analogous grounds → immigration status, relationship status

Substantive Equality

Historical advantage/disadvantage

→ Affirmative action programs → Do not offend the Charter Rights

Basic principle - constitution

That government can and should be legally limited in its powers and Constitutionalism is ‘supreme law’ that necessitates a purposive interpretation by courts

Entrenchment of Constitutions

Rules imposing limits upon government power must be entrenched, either by law or by “Constitutional Convention.”

Judicial Review: Unwritten Constitution, Implied Power and Judicial Deference

The most important power of the Supreme Court, that of judicial review

A law will be judged based on

Was there an error in jurisdiction, error in fact, error in procedural fairness and/or Unfair denial of immigration application by IRCC

Judicial Review and Judicial Discretion

Appellants appeal of the Federal Courts decision to dismiss application for the judicial review of orders handed down by federal government forcing Canadian travelers to stay at the “Quarantine Hotels” (Spencer V Canada 2021 FC 361)

Are there any limitations to our charter rights?

Section 1 and 33

Section 1

Limits can be placed on our rights and freedoms with the limitation can be “demonstrably” justified in a free and democratic society

Section 33

Government overrides charter in best interest of society and In Best Interest of Society

do justice

to treat someone or something in a way that is fair and shows their or its true qualitie

Procedural safeguard

using policies, operating procedures, training, emergency response and other administrative approaches to prevent incidents or to minimize the effects of an incident

Principle of Writ (s) / Writtenness

to direct others to perform specific actions.

Constitutional Convention

an uncodified rule of a constitution considered binding on political actors but not enforceable by the courts

amending formula

the set of conditions required to make changes to the. Constitution.

assembly line justice

a system in which the defendant's rights are not rigorously protected

Legal guilt

concerned about the criminal laws violated

factual guilt

what a Defendant actually did

force of law

a body of rules that have been laid down for determining rights and legal obligations, which are recognized by the courts of justice

open court principle

requires that court proceedings be open to the public, and that publicity as to those proceedings be uninhibited

procedural impropreity

The first is a failure to comply with any procedural requirements set out in statute. Secondly, there is a broader heading of failing to act 'fairly', the core of which are the rules of natural justice.

social conservatism

political ideology focused on the preservation of traditional values and beliefs.

welfarism

a theory that well-being, what is good for someone or what makes a life worth living, is the only thing that has intrinsic value.

Double Blind Test

an experiment where both the subject and observer are unaware that the exercise in practice is a test.