LAW EXAM REVIEW

CLU 3M1

1. Why was the role of lawyers originally developed?

Many laws began to emerge, therefore experts were needed to interpret laws

2. What is the purpose of laws?

The purpose of laws is to create clear understanding about expected behavior

3. Who creates laws in Canada?

Government

4. 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)

5. 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

6. 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

7. 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

8. 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

9. What is a statute law?

Law made by governments.

* created in parliament by elected persons
* Statute Law trumps Common Law

10. 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

11. What is cultural genocide?

Forced assimilation

12. 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.

13. 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.


1. services/goods/facilities
2. occupancy of accommodation
3. contract
4. employment
5. 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

15. 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

16. 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

17. 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

18. 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

19. What does decriminalize mean?

make a behaviour that was illegal punishable only by fines

20. What does criminalize mean?

make a behaviour a criminal offence in the Criminal Code or other criminal statute

21. What does legalize mean?

make an act completely legal by removing it from the Criminal Code or other criminal statute

22. What is civil law?

Deals with offences committed against individuals.

* parties must prove their claim on the balance of probabilities (likelihood of an occurrence)

23. 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

24. 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

25. 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?

26. 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?

1. identify themselves (uniform’s sufficient)
2. advise accused they’re under arrest
3. inform of charges & rights


1. right to counsel
4. 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

28. 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

29. 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

30. 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

31. 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

32. What is direct evidence?

The best evidence usually obtained from a witness who actually saw the offence being committed.

33. 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.


1. graphite powder: used on non-absorbent surfaces
2. iodine fuming: used on surfaces such as paper and cloth
3. laser beam: used to illuminate the print

34. 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

35. 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)

36. 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

37. 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.


1. is evidence believable?
2. how important is believable evidence?

38. 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

39. What is the Parole Board of Canada?

National Parole Board

40. 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

41. 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

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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

42. 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.


1. hold offenders accountable
2. consider victims’ needs
3. 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

43. 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

44. 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

45. 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

46. 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:


1. reason abused person might stay
2. nature & extent of violence that may exist
3. defendant’s ability to perceive danger from abuser

47. What is hearsay evidence?

Statements or writings by someone other than the witness.

* often inadmissible

48. 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.


1. conscience and religion
2. thought, belief, opinion, and expression
3. peaceful assembly
4. association

49. 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

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* right to vote

*Section 3 of the Charter*