Criminal Justice 230

Flashcards on Criminal Justice 230 Lecture Notes

Constitutional Law

Very important to criminal law and includes section 91(27) of the British North America Act.

Role of the Charter

Guarantees individual rights and liberties, balancing them with collective safety and security.

Common Law Rights

Trial by jury, presumption of innocence, proof beyond a reasonable doubt, right to remain silent, burden of proof on the Crown.

Bill of Rights

Enacted in 1960, protects property rights, applies only to federal legislation, not part of the constitution.

History of Charter

1861 - Colonial Laws Validity Act, 1867 - BNA Act, 1931 - Statute of Westminster, 1960 - Bill of Rights, 1982 - Canada Act.

Canada Act

A British statute that repatriated Canada’s constitution, including the Constitution Act which contains the Charter of Rights and Freedoms.

Constitution Act

Charter of Rights and Freedoms, rights of Aboriginal people, equalization and regional disparity, constitutional conference, amending formula, amendment to BNA Act, section 52 - paramountcy rule.

Section 52

The constitution is paramount; anything contrary is of no force and effect.

Exceptions to Paramountcy Rule

Section 33 non-obstante (notwithstanding) clause and Section 1 which refers to reasonable limits.

Types of Freedoms and Rights

Egalitarian (s. 15), legal (ss. 7-14 & 24), fundamental freedoms (s. 2), mobility, voting, language, aboriginal.

Charter of Rights Sections

Guarantee/reasonable limits s. 1, fundamental freedoms s. 2, democratic rights ss. 3-5, mobility rights s. 6, legal rights ss. 7-14, equality rights s. 15, official languages ss. 16-22.

Charter Sections (cont’d)

Minority language education s. 23, remedies/exlusionary rule s. 24, general/miscellaneous ss. 25-31, application to governments s. 32, notwithstanding clause s. 33, citation s. 34.

Reasonable Limits (s. 1)

Rights are guaranteed but subject to reasonable limits, demonstrably justified in a free and democratic society. Onus is on the Crown to justify the Charter breach using the Oakes test.

Fundamental Freedoms (s. 2)

Conscience and religion; thought, belief, opinion, expression; freedom of the press and other media; peaceful assembly; association.

Due Process (s. 7)

Right to life, liberty and security of the person, except in accordance with the principles of fundamental justice.

Search and Seizure (s. 8)

Right to be secure against unreasonable search or seizure, protecting a person’s reasonable expectation of privacy (Hunter v. Southam, R. v. Collins, R. v. Stillman).

Arbitrary Detention (s. 9)

Right not to be arbitrarily detained; arbitrary means capricious, no grounds (but does not apply to impaired driving roadblocks or police traffic checks).

Right to Counsel (s. 10)

Applies upon arrest or detention; right to be informed of reasons and to instruct counsel without delay.

Trial Procedures (s. 11)

Trial within a reasonable time, presumption of innocence, non-compellability of accused, double jeopardy, reasonable bail, jury trial (if maximum sentence is greater than 5 years imprisonment).

Other Legal Rights (ss. 12 - 14)

Not to be subjected to cruel and unusual punishment, right against self-incrimination, right to an interpreter.

Remedies

S. 24(1) - any just and appropriate remedy; s. 24(2) - exclusionary rule: evidence obtained in a manner that breached a Charter right will be excluded if its admission will bring the administration of justice into disrepute.

Characteristics of Courts

Adjudicative, authoritative, adversarial, visible and official, applies pre-determined objective norms, independent.

Court Hierarchy

Supreme Court of Canada > BC Court of Appeal > BC Supreme Court > Provincial Court.

Federal Courts

Established and maintained by federal gov’t/judges appointed by federal gov’t.

Provincial Superior Courts

Established and maintained by provincial gov’t/judges appointed by federal gov’t.

Provincial Courts

Established and maintained by provincial gov’t/judges appointed by provincial gov’t.

Levels of Courts

Supreme Court of Canada > Provincial Courts of Appeal > Provincial Supreme Court > Provincial Court.

Federal Court System

Trial Division and Appeal Division; handles cases involving federal boards and tribunals, maritime law, copyright, bills of exchange, civil suits against federal employees.

Supreme Court of Canada

Chief Justice of Canada, 8 other judges, territorial representation (3 from Quebec, 3 from Ontario, 1 from the Maritimes, 1 from the Prairies, 1 from BC).

BC Court of Appeal

Chief Justice of BC, several other judges; only hears appeals based on legal arguments, usually sits as a panel of 3 or 5 judges.

BC Supreme Court

Top trial court in BC, mainly deals with civil law, Divorce Act, major criminal offences, all murder trials, criminal trials can be with or without a jury, summary conviction appeals from Provincial Court.

BC Provincial Court

Hears 95% of criminal trials, Preliminary Hearing for serious offences, exclusive jurisdiction over minor offences, Youth Court, Traffic Court, some civil jurisdiction – small claims, family law.

Doctrine of Precedent

In resolving a particular case, a judge must follow the decision of previous cases where the fact patterns in the two cases are similar.

Doctrine of Stare Decisis

Judge must follow decisions of higher courts in same jurisdiction (includes the SCC); judge is persuaded by decisions of higher courts in other jurisdictions; judge is persuaded by decisions of equal courts in same jurisdiction.

Ratio Descendendi

Is the legal ruling of the court; this is what is binding on lower courts through the doctrines of precedent and stare decisis.

Distinguishing

A case does not have to be followed if it is distinguishable based on different material facts, different laws now apply, or the previous judge did not have the benefit of the legal argument being made now.

Role of the Judiciary

Doctrines of precedent and stare decisis; statute law must be applied to specific factual situations, which vary greatly; Charter of Rights requires judicial interpretation because it is worded very generally.

Judicial Philosophy

While judges strive to be objective, they will inevitably look at the case from their own perspective.

Positivist School

Only valid law is sovereign law (positive law); whether a law is “just” is secondary.

Naturalist School

Positive law must be congruent with justice; value oriented.

Realist School

Social conditions must be considered.