Studied by 8 people
Why was the role of lawyers originally developed?
Many laws began to emerge, therefore experts were needed to interpret laws
What is the purpose of laws?
The purpose of laws is to create clear understanding about expected behavior
Who creates laws in Canada?
Government
What was the Code of Hammurabi?
codification of written law.
→ writing and assembling laws into a body of statute
300 laws carved in a tablet of stone
retribution style
“eye for an eye”- every crime delivered a consequence
restitution clearly laid out
date: Babylonian Era; 1750 BCE (Found in 1901 Iran)
What was the Magna Carta?
A document indicating that no one is above the law.
right to…
Habeas Corpus
access to courts; costs should not be an impede
go through the proper legal system before punishment
date: 1215
What was the British North America Act?
Canada’s first constitution, as the Dominion of Canada.
self-governing nation under British law
Britain still controlled foreign affairs
if changes needed, done in London by British Privy Council
Federalism
governments’ power & responsibility division between federal & provincial legislatures
What was the 1982 Constitution Act?
Canada’s current constitution.
BNA Act + Charter + amending formula + statutes
complete legal authority & power to amend constitution
lead by Prime Minister Pierre Elliot Trudeau
all provinces agreed & supported new Constitution except for QC
date: April 17, 1982
What is a common law?
Law based on judges’ trials decisions & precedents, and reported case law.
intended to be easily retrievable in a law library
each recorded case is given a title of citation
Who is involved in the case?
When was the court decision made?
Which court heard the case?
Who is the court reporter?
Is the case public or private?
Rule of Precedent
when something’s done that can later serve as example / rule for how others things should be done
came about when case & decision became common knowledge in English legal community
judges who heard similar cases gave similar decisions
established judging offence standards
What is a statute law?
Law made by governments.
created in parliament by elected persons
Statute Law trumps Common Law
What is the Charter of Rights and Freedoms?
The Charter describes important rights and freedoms that belong to all Canadians. These rights cannot be taken away by anyone, not even federal and provincial governments.
purpose is to limit government
federal and provincial governments / courts are guided by the Charter in establishing / applying laws
Reasonable Limits Clause
rights & freedoms guaranteed but subject to “reasonable limits” in certain situations
Section 1 of the Charter
Power of the Courts
exclude evidence if obtained by violating someone’s rights
strike a law down
→ if court feels government created law that violates Charter, courts can make it invalid
What is cultural genocide?
Forced assimilation
What is equity in law?
In law, equity is the necessitation to treat people differently, as long as we are treating them fairly, so that they do not suffer from discrimination.
What is the Ontario Human Rights Code?
A comprehensive human rights legislation to protect the rights of individuals.
supremacy over all other legislation in Ontario unless that legislation specifically states that the Code does not apply
laws would be enforced through the establishment of the Ontario Human Rights Commission
agency directly responsible for administering and enforcing the Human Rights Code in Ontario
date: 1962
How many areas of our lives are provided protection & are identified as prohibited grounds from discrimination, and what are these?
There are 5 areas of our lives provided protection, & 16 prohibited grounds from discrimination.
services/goods/facilities
occupancy of accommodation
contract
employment
membership in vocational associations/trade unions
What is an ombudsman?
An independent person appointed by government to receive and investigate citizens’ grievances & complaints against provincial government organizations.
recommends corrective action
exists at provincial level
What was the Bill of Rights?
It guarantees many of the same rights and freedoms outlined in the Charter.
Differences:
as an ordinary act of Parliament, the Canadian Bill of Rights can be changed at the will of a Parliamentary majority
only applies to areas which fall within the control of the federal government
date: 1960
What is the Not Withstanding Clause?
Section 33 of the Charter.
allows governments to enact legislation in spite of the fact that it may violate the guaranteed rights and freedoms
law must be reviewed every 5 years
What is a stereotype?
“set image”
involve generalizations about the "typical" characteristics of members of a group
refers to an instant or fixed picture of a group of people, regardless of their individuality
organize and simplify our complex world→ can be functional
usually based on (possibly positive, but usually negative) incomplete info
becomes problematic when people apply these stereotypes to individuals
What is the Canadian Criminal Code?
Main source of criminal law in Canada.
enacted by a democratically elected federal Parliament
criminal offences are treated the same across Canada
written and amended (changed) by the federal Parliament, but the Supreme Court of Canada still has a major influence on criminal law
What does decriminalize mean?
make a behaviour that was illegal punishable only by fines
What does criminalize mean?
make a behaviour a criminal offence in the Criminal Code or other criminal statute
What does legalize mean?
make an act completely legal by removing it from the Criminal Code or other criminal statute
What is civil law?
Deals with offences committed against individuals.
parties must prove their claim on the balance of probabilities (likelihood of an occurrence)
What is a summary conviction?
A less serious criminal offence.
prosecution must begin within 6 months of crime
police must observe crime in order to effect an arrest
shorter trial process
tried by judge alone (no jury)
What are the maximum penalties for a summary conviction?
$2000 fine &/or 6 months imprisonment
What is an indictable conviction?
A more serious criminal offence.
no limits regarding when prosecution must begin
police don’t need to observe crime to effect arrest
longer trial process
tried by judge/jury
What are the maximum penalties for an indictable offence?
any fine &/or life imprisonment
How many imprisonment categories are there for an indictable conviction, and what are these?
There are 5 imprisonment categories.
2 years maximum
5 years maximum
10 years maximum
14 years maximum
life
What is a hybrid conviction?
A criminal offence which can be dealt with as summary or indicatable.
Crown electable / dual procedure
until charge’s laid in court, always treated as indictable
crown attorney decides whether charge will be summary/indictable
past criminal record?
violence/weapons involved?
value of items at issue?
What is the role of a police officer?
preserving the peace
preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention
assisting victims of crime
apprehending criminals and other offenders and others who may lawfully be taken into custody
laying charges and participating in prosecution
executing warrants that are to be executed by police officers and performing related duties
use as much force as necessary
force that causes death or bodily harm can be used if it protects others from death or harm
police are criminally responsible (liable) for the use of unnecessary force
What is the role of a police officer upon arrest?
identify themselves (uniform’s sufficient)
advise accused they’re under arrest
inform of charges & rights
right to counsel
touch accused to indicate legal custody
What is the role of a police officer after arrest?
locate evidence / anything that may assist in escape/injury
fingerprinting/photographing for indictable offences
strip searching
legal if person’s held in custody for their safety
keep accurate log of what was witnessed
frequently most important factors in determining acceptance of evidence by court
What is an arrest?
To detain a person legally and to charge them with a criminal offence.
police must have proof that the offence has been committed or reasonable grounds for suspecting a certain person
What is a testimonial?
Witness testify about what they saw, heart, smelt, tasted, and touched.
A witness is protected against the results of self-incrimination
Section 13 of the Charter - evidence witnesses give in court must not be used against them later
What is chain of custody?
Testimony and documentation that details the location and condition of evidence from seizure to trial.
assures the court that items entered into evidence are in the same condition as when they were seized
chain of custody and the procedures used to analyze evidence are more often challenged than the science behind the analysis
What is circumstantial evidence?
Useful evidence; not as certain as direct evidence, though stronger in reality.
accused generally can’t be convicted on circumstantial evidence alone
forensic evidence provides new areas of circumstantial evidence & can prove case on its own
What is direct evidence?
The best evidence usually obtained from a witness who actually saw the offence being committed.
How many types of fingerprints are there, and what are these?
There are 2 types of fingerprints.
visible
latent
Visible Fingerprints
can be observed by naked eye
e.g. coated in blood/grease
Latent Fingerprints
can’t be observed by naked eye
e.g. formed by perspiration/natural oils
How many methods are used to develop latent fingerprints, and what are these?
There are 3 methods used to develop latent fingerprints.
graphite powder: used on non-absorbent surfaces
iodine fuming: used on surfaces such as paper and cloth
laser beam: used to illuminate the print
What is a polygraph test?
A lie detector test.
questioned while hooked up to machine that measures changes in blood pressure/respiration/pulse rate to indicate whether person tells truth
supreme court ruled polygraph tests are hearsay
inadmissible as evidence
What is automatism? How many types of automatism are there, and what are these?
Automatic functioning without conscious effort or control.
negates actus reus because person acts involuntarily
not mentioned in the criminal code but has developed through precedent and case law
There are 2 types of automatism.
insane
non-insane
Insane Automatism
mental disorder (disease of the mind according to criminal code)
Non-Insane Automatism
external factor (e.g. medication)
What is the charge to the jury?
Judge reviews the facts & defines the legal issues in the case for the jury, and indicates which evidence is more important than others.
often the basis for appeals if one side sees legal errors which may prejudice the jury
How do juries work?
12 jurors, but can proceed with 11 or 10
unanimous verdict or declared mistrial
note-taking not always allowed
jurors determine the facts in the case; judge at this stage only rules on law
what the jury believes determines which law applies
if they believe defence’s evidence / can’t decide, must acquit
if judge accepts inability to reach decision, hung jury
→ dismissed jury
may never disclose what went on in jury room
usually has no say in penalty
How many steps does it take to consider facts in the jury, and what are these?
Facts are considered in 2 steps.
is evidence believable?
how important is believable evidence?
What is the difference between aggravating vs. mitigating factors?
Aggravating
→ factors that could be considered to lengthen the sentence of accused
VS.
Mitigating
→ factors that could be considered to lessen the sentence of accused
What is the Parole Board of Canada?
National Parole Board
How does parole work in Canada?
Parole is the release of an inmate before the full sentence is served on a promise of good behaviour.
must be reviewed after 1/3 of sentence or 7 yrs
exception is 1st degree murder
How many different options are there for parole, and what are these?
There are 4 different options for parole.
day parole
full parole
statutory release
temporary unescorted release
Day Parole
conditional absence from prison for day
Full Parole
conditional release after serving 1/3-1/2 of sentence
Statutory Release
release by law after 2/3 of sentence
Temporary Unescorted Release
How many usual conditions are there for parole, and what are these?
There are 3 conditions for parole.
obey law
carry release card
meet curfew
What is the Youth Criminal Justice Act?
An act in which a person who is 12-17 years old & is charged with an offence falls under.
age for serious/violent crimes was lowered from 16 to 14
judges could impose adult sentences for violent crimes & publish name
less emphasis on custody & more emphasis on alternative sentencing options for minor / nonviolent offences
increases community supervision for youth criminals who served time in custody
convicted may also be ordered to participate in police/community-based programs so police interactions can be made positive
accused may be tried in youth/family court
before sentencing, judge reviews youth pre-sentence report
name won’t be public unless convicted of serious offence
date: 2001, replaced YOA in 2003
What are the maximum penalties in the YCJA?
$1000 fine
10 yrs custody
How do bail & detention work in the YCJA?
Bail
terms usually include curfews/adult supervision/forbidding contact with friends/victim
most not released without surety
→ person who posts bail & agrees to supervise until trial)
Detention
must be informed of rights in language they fully comprehend
accused thought to be dangerous / likely to skip trial will be sent to foster home
How are parents involved in the YCJA?
encouraged to be present during each step of legal process
judge may also order parents to appear at hearing/trial
Declaration of Principle
prevent crime by finding out what causes youths to offend in the first place
rehabilitate youths and reintegrate the into society
ensure they are given meaningful consequences for their actions that will actually deter future crimes
promote long-term protection of society
How many principles of sentencing are there in YCJA, and what are these?
There are 3 principles of sentencing in the YCJA.
hold offenders accountable
consider victims’ needs
impose appropriate sanctions while protecting / reintegrating into society [equally important]
How many alternative sentencing options are there in the YCJA, and what are these?
There are 2 alternative sentencing options in the YCJA, that both avoid trial.
extrajudicial measures
extrajudicial sanctions
Extrajudicial Measures
non-violent 1st time youth offenders participate in diversion/community programs
Extrajudicial Sanctions
serious punishment for youth criminal that doesn’t create criminal record
How many types of custody are there under the YCJA, and what are thhese?
There are 2 types of custody under the YCJA.
open custody
secure custody
Open Custody
require structure but not considered dangerous
sent to…
group home
→ accommodates youth criminals, run by trained staff
foster home
→ parents receive money from provincial government for service
Secure Custody
restricted freedom
sentence automatically reviewed every yr
judge can decrease sentence but can’t increase it
What is Habeas Corpus?
All have the right to appear before a court within a reasonable time and are released or tried by their own peers
What are the broadest categories of law?
The broadest categories of law are international & domestic law.
International Law
governs nations’ relationships
e.g. USMCA
Domestic Law
governs nation’s activity
usually from constitution/monarchy
How is domestic law divided?
Domestic law is divided into procedural & substantive law.
Procedural Law
prescribes methods of enforcing substantive law rights
e.g. trial procedures
Substantive Law
defines everyone’s duties
e.g. road rules
How is substantive law divided?
Substantive law is divided into public & private law.
Public Law
regulates government & citizen relations
How is public law divided?
Public law is divided into administrative, criminal, & constitutional law.
Administrative Law
relates to government board & citizen relations
e.g. liquor control
Criminal Law
identifies crimes as described in criminal code
e.g. murder
Constitutional Law
deals with government power exercise
overrides all laws
Private Law
governs private individual & organization relations
How is private law divided?
Private law is divided into tort law, contract law, family law, estate law, property law, & employment law.
Tort Law
holds person/organization responsible for damage they cause as accident/deliberate action
onus on plaintiff to prove defendant’s actions caused damage
Contract Law
provides rules regarding people & business agreements
Family Law
deals with family life
e.g. marriage
Estate Law
deals with property division after death
including if person dies without will
Property Law
governs ownership rights
including real estate
Employment Law
governs employer/employee relations
e.g. minimum wages
What is entrapment?
A defence against police conduct that illegally induces the defendant to commit a criminal act.
onus on accused
usually undercover work
can present opportunity to commit crime but can’t harass/bribe/induce person to break law
if judge agrees, the judge will “stay” proceedings / stop trial
What is Battered Woman Syndrome?
A type of self-defence where the prolonged effects of spousal abuse led to the abusive spouse being killed by the victim.
psychiatric condition used to justify self-defence
jury should be instructed in such cases on 3 elements:
reason abused person might stay
nature & extent of violence that may exist
defendant’s ability to perceive danger from abuser
What is hearsay evidence?
Statements or writings by someone other than the witness.
often inadmissible
How many fundamental freedoms are there in the Canadian Charter of Rights and Freedoms, and what are these?
There are 4 fundamental freedoms in the Canadian Charter of Rights and Freedoms.
conscience and religion
thought, belief, opinion, and expression
peaceful assembly
association
How many fundamental rights are there in the Canadian Charter of Rights and Freedoms, and what are these?
There are 5 fundamental rights in the Canadian Charter of Rights and Freedoms.
democratic rights
mobility rights
equality rights
legal rights
language rights
Democratic Rights
right to vote
Section 3 of the Charter
Note
Flashcard