Studied by 23 people
actus reus
the guilty act - demonstrates a voluntary action, omission, or state of being that is prohibited by law
mens rea
the guilty mind, demonstrates that the act was intentional, knowing, negligent, reckless, willfully blind
intent
a state of mind in which someone desires to carry out a wrongful action
knowledge
an awareness of certain facts that can be used to establish mens rea
negligence
careless conduct that causes forseeable harm to another person
recklessness
consciously taking an unjustifiable risk that a reasonable person would not take
wilful blindness
a deliberate closing of one's mind to the possible consequences of one's actions
jurisprudence
the philosophy/science of law
primary sources of law
religious doctrines, social views, philosophical views, customs and conventions
secondary sources
specific laws, written judicial decisions, documents (canadian charter of rights and freedoms)
ratio decidendi
reason for deciding
abstraction
process by which ratio decidendi begins as a narrow rule applied to specific facts and then becomes a wider rule with wider application
constitution in canada
sovereign, including the PM and Cabinet
The 2 Houses of Parliament- house of commons and the senate
The Judiciary
natural law
the doctrine that human affairs should be governed by ethical principles that are part of the very nature of things and that can be understood by reason (eg, laws against murder)
positive law
sovereign makes law that subjects must obey
reductionist theory
a person is free to do what is not positively prohibited by law
johnson v. sparrow (1899)
black man and woman were denied seats in the orchestra even though they had reservations. court sided with johnson stating that the theatre had breached the contract terms when refusing to seat, discrimination was not defined at the time due to narrow positive law frame work
edwards v. attorney general of canada (1929)
The Persons Case declared women as "persons" under the law and allowed for women to hold government office.
christie v. york (1940)
black man refused service at a bar during a hockey game in montreal. emphasized lack of human rights at the lower court, which sided with christie, was overturned. supreme court of canada at the time decided that there were no laws to uphold his rights but there was precedent that an owner can serve whomever they wish.
canadian bill of rights (1960)
a federal document that set out the rights and freedoms of Canadians; it was enacted in 1960 under the leadership of Prime Minister John Diefenbaker
the ontario human rights code (1962)
trend setting statute passed by ontario government to override all other provincial legislation to give equal treatment in the areas of goods, services, accommodation, facilities, and employment.
canadian human rights act (1976)
similar to provincial legislation, ensures equal treatment in federal agencies, services, and organizations.
criminal conduct
conduct that may harm personal safety and health, property, and general social order
classical school of criminology
humans acted as morally independent beings, arriving at their own decisions concerning their behaviour through rational thought.
crime is seen as rational, calculated activity and gnores factors beyond an individuals control such as poverty, mental disorders, and intelligence
positivist school of criminology
the view that criminal behavior is a product of biological, psychological, and social forces beyond a person's control
psychological theories
propose that criminal conduct is the result of repressed memories and feelings of guilt, causing a person to feel a compelling need to be punished (thanks freud....)
moral development theories
proposes that individuals develop universally through stages in which they learn about right and wrong and how to reason morally
personality theories
attempt to show how personal characteristics are tied to criminal activity (eg sociopaths, psychopaths)
conflict theory
argues that morality is defined differently by social groups in their struggle to gain or keep power
intent (form of mens rea)
mental desire and will to act in a particular way
subjective intent
intent can only be surmised based on overt evidence
(eg bill throws a rock at james, we can surmise that he intended to hit james with the rock, but we are forced to guess his intent regardless how clear it might appear to be)
objective intent
intent that can be clearly established based on overt evidence
(eg bill throws a rock at james, its obvious that objectively bill intended to throw the rock and the intent to carry out the action would constitute objective intent. however, the intended result of the action cannot be determined as easily. did bill intend to hit james or was bill's goal simply to scare james?
automatism
a defence based on a claim that one's actions were not voluntary (eg sleepwalking, stroke, reflex actions)
mental disorders
a defence based on a claim that one is not capable of appreciating their actions (eg mental disabilities, schizophrenia)
intoxication
a defence based on a claim that one is not capable of appreciating their actions due to momentary intoxication
mistake of fact
a defence based on a claim that one committed the offence because they mistook a critical fact (eg serving alcohol to a minor with a fake id)
mistake of law
a defence that one committed the offence because they did not know that their action was against the law
(exception to section 19 of the criminal code that ignorance of the law is not an excuse)
colour of right
the offender believed they had a pre-existing right that allowed them to commit the offence (eg taking property to which one believed they had a claim)
officially induced
the accused was informed that the act was not an offence by a representative of the state (eg ministry of transport informed them that they could drive with an expired license)
self defence
a defence based on the claim that one committed the offence in order to protect themselves, another person, or property.
compulsion
a defence based on a claim that one committed the offence in order to avoid harm posed by a way of threat (eg stealing money to avoid being assaulted) cant be used for murder or sexual assault
rehabilitation
punishment combined with treatment and training to help offenders function in society (alcoholics anonymous, anger management etc)
retribution
punishment to avenge a crime, ensuring that the offenders suffer the consequences of their actions
restitution
punishment that requires the offender to pay society back for the harm or loss suffered
denunciation
punishment designed to show condemnation of the offender's conduct
protection of the public
offender is incarcerated to protect the public (paul bernardo)
specific deterrence
punishment to discourage criminals from reoffending
general deterrence
punishment to discourage people in general from reoffending
summary criminal offense
less serious criminal offences (eg soliciting prostitution, nudity)
max penalty of $500.00/or less than 2 yrs in prison
indictable criminal offense
more serious criminal offenses (eg murder, sexual assault)
can have any fine and up to life imprisonment
hybrid criminal offense
offenses which can dealt with as a summary or an indictable offence, crown can decide how specific case should be treated until the charge is laid in court it is always treated as an indictable case
decided on basis of past criminal records, violence or weapons involved, value of items at issue etc
max life sentence offences
first degree murder, criminal negligence causing death, misuse of explosives and corrosives
max 14 year sentence offences
incest, perjury, passport forgery, counselling or assisting suicide
max 10 year sentence offences
bestiality, sexual assault, making or distributing child pornography
max 5 year sentence offences
possession of a forged passport, carrying a concealed weapon, making an automatic firearm
max 2 year sentence offences
corrupting children, permitting or assisting escape, disobeying an order of court
international law
the customs, rules and agreements recognized as binding on sovereign states to ensure orderly conduct within the international community
difference between international and domestic law
international law is voluntary, only those countries that agree to be bound by international treaties and conventions are subject to them
challenges of international law
differing morals and beliefs
-differing domestic law that may be incompatible with one another
-countries unwilling to give up sovereignity
organizations that administer international law
UN
International Criminal Court, Hague
-ICJ (International Court of Justice, South Africa v. Israel)
-INTERPOL
bilateral treaty
a treaty made between two nations
multilateral treaty
treaty made between multiple nations
UNDRIP
United Nations Declaration on the Rights of Indigenous Peoples
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Flashcard (335)