Socio Midterm 2

Rule of Law

The principle that the law is supreme over any individual or any body of government

A foundational principle of the Canadian constitution, dictating that the law is supreme over any body of government or individual

Rule of Law

[R] v Sipos, 2014 SCC 47

Regina (Latin for “queen”), criminal offences are prosecuted in the name of the monarch

R v [Sipos], 2014 SCC 47

The Crown was prosecuting an individual named Sipos

R v Sipos, [2014] SCC 47

Year of the decision

R v Sipos, 2014 [SCC] 47

Means that the decision was made by the Supreme Court of Canada

R v Sipos, 2014 SCC [47]

Refers to the fact that the Sipos case was the 47th judgement issued by the Supreme Court of Canada

Traditional Citation = R v Sipos, [2014] 2 SCR 423 — The square brackets around the year

Refer to the year the decision being reported in the Supreme Court Reports volume for that year

Traditional Citation = R v Sipos, [2014] 2 SCR 423 — The 2 refers to

The second volume in 2014

Tradition Citation = R v Sipos, [2014] 2 SCR 423 — 423 refers to

Page on which the case is found

Traditional case citation provides

Additional publication information

R v Smickle, 2013 ONCA 677

Court of Appeal for Ontario made its 677th decision in 2013

The English common law system dates back

Over 800 years

Common Law

Refers to an approach to law that sought uniformity and was based on precedent (as judges would attempt to follow each other’s decisions), which in turn created a common set of legal principles

An attempt to law that is based on tradition, where judges follow decision or precedents made by other courts

Common Law

Stare Decisis

A legal principle whereby the courts are bound by their prior decisions and the decisions of higher courts

Customary Law

Informal methods of seeking justice based on local traditions or practices of resolving disputes

Judge-Made Law (Common Law)

As decisions made by the courts are also sources of law upon which we rely to interpret all statues, including statues related to criminal laws and it guides the courts and lawyers in sentencing in criminal matters.

Common law is based on the notion of

Stare decisis

Quebec’s Approach to Civil Law can be traced back to

The French Napoleonic Code that originated in 1804

The Civil Code of Quebec

General law that contains all of the basic provisions that govern life in society, namely the relationships among citizens and the relationships between people and property.

Credited with establishing a more uniform or common approach to justice shortly after being crowned in 1154 and created legal tribunals in order to respect disputes between individuals

King Henry II

The Magna Carta 1215

Established that everybody, even the king, was subject to the law and that all free men (a very small portion of the population) had the right to festive and fair trials

In 1215 the Magna Carta was first written in part by the Archbishop of Canterbury and was recognized by

King John of England

Common-Law Legal systems are present in

Most English-speaking nations colonized by the British, including Australia, New Zealand, India, the USA, and some African and Caribbean nations

Adversarial nature of the justice system

Where both parties present their cases to a judge, who acts as an impartial arbitrator

Common features of common-law across nations

Adversarial nature, presumption of a defendant’s innocence, reliance on case law where Jude’s make decisions about current cases based on the outcomes of prior judgements (precedent)

The underlying principle of common-law across nations is

The rights of the individual are balanced against the interests of society

Precedent

The practice of judges basing decisions about current cases on the outcomes of prior judgements

Key elements of the Canadian Justice System

Presumption of innocence and burden of proof

Burden of Proof

Requires that Crown prosecutors must prove that the accused person is guilty prior to a conviction (or accept a plea of guilt).

Standard of proof for a criminal conviction

Beyond a reasonable doubt

If guilt cannot be proven, Canadian judges and juries must

Acquit a defendant if they think they’re probably guilty

The priority of the defence counsel is not to prove innocence but

To raise enough doubt that a conviction cannot be made

Two types of Criminal Law

Substantive law and procedural law

Most impoverished Canadians accused of committing crimes are eligible for legal aid services subsidized by

The federal and provincial governments

Reports that inadequately funded legal aid systems result in

Slower court process, job losses when suspects are unnecessarily incarcerated, and further marginalization of people who cannot fully participate in society

Substantive Law

Consists of the written rules that define crimes and punishments, and the right and obligation of citizens and criminal justice personnel

Refers to the rules that define rights and obligations

Substantive law

Procedural Law

Focuses on the rules that determine the enforcement of rights or due process

The Constitutional Act of 1867 is also called

The British North America Act of 1867

The Constitutional Act of 1867 was updated in 1982

To include the Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms

The part of the constitution that defines the rights and freedoms of Canadians, including those accused of committing crimes.

The first part of the Constitution Act, 1982, defines

The Canadians have with the government, including guarantees of basic rights and freedoms, democratic rights, legal rights, and the ability of citizens to move freely throughout the nation, the protection of equality under the law, the recognition of two official, the acknowledgement of Indigenous rights, and the ways the Charter can be applied by Parliament and provincial legislatures.

Legal rights defined in the Charter of Rights and Freedoms in sections

Sections 7 to 14

Sections 7 to 14 of the Charter of Rights and Freedoms

Rights that protect us in our dealings with the justice system. They ensure that individuals who are involved in legal proceedings are treated fairly, especially those charged with a criminal offence.

Sections 7 to 14 include

Life, liberty and security of person; search or seizure; detention or imprisonment; arrest or detention; proceedings in criminal and penal matters; treatment or punishment; self-crimination; and interpreter

Section 7 of the Charter

Life, liberty and security of the person

Section 7: Life, liberty and security of person

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

Section 8: Search or Seizure

Everyone has the right to be secure against unreasonable search or seizure

Section 9: Detention or Imprisonment

Everyone has the right not to be arbitrarily detained or imprisoned

Section 10: Arrest or Detention

Everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; ( c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

Section 11: Proceedings in Criminal and Penal Matters

Any person charged with a criminal offences has the right: (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceeding against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe   punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Section 12: Treatment or Punishment

Everyone has the right not to be subject to any cruel and unusual treatment or punishment

Section 13: Self-Crimination

A witness who testifies in any proceeding has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for giving the contradictory evidence

Section 14: Interpreter

A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf, has the right to the assistance of an interpreter

Other sections of the charter applicable to criminal matters

Section 15 and 24

Section 15 of the Charter of Rights and Freedoms

Addresses the issue of equal protection for all people, and states that discrimination cannot be made on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Section 15 of the Charter of Rights and Freedoms

Enables individuals to seek remedies in a court in the event that their Charter rights have been violated

Issues with terms used in the Charter of Rights and Freedoms

Some aren’t commonly encountered, some meanings aren’t clearly described, terms can be interpreted from a number of perspectives, some terms and descriptions are vague

Fundamental Justice

A principle of Canadian justice that states that people who acted reasonably may not be punished unless there is proof that they did something wrong

Habeas Corpus

The right of a person who is being detained to challenge the legality of their detention before a court.

Refers to the ability to question an individual’s detention by the state and in the criminal law context, its used to bring the petitioner before the court to inquire into the legality of their confinement

Habeas Corpus

An individual cannot be prosecuted for an act that is

Not defined as an offence in the Criminal Code when the crime occurred

Individuals can be charged with

Crimes of omission and crimes of commission

Crimes of Omission

An act where the accused has failed to take some action, such as a school social worker failing to report child abuse to child welfare authorities

Crimes of Commission

A criminal act that was actually carried out

Two main elements of a crime that MUST occur together

Actus Reus and Mens Rea

Actus Reus (The Criminal Act)

The criminal action or conduct of a person committing an offence. The harm must be considered serious, and the remedy must be made through the justice system. Has to be considered wrong by society and either cause harm to an individual or cause general harm to society by affecting all Canadians.

Victim Crimes

Acts that are legally defined as crimes even though there is no direct victim, such as illegal gambling.

Mens Rea (The Guilty Mind)

The state of mind of a person committing a criminal act

As it pertains to Mens Rea, obtaining a conviction relies on

Showing that the individual intended on committing the act

Coughlan et al (2013) refers to Mens Rea as

The mental element or intent required for the commission of a criminal act and may include individuals with differing levels of intention, knowledge, recklessness, or wilful blindness

Faulty eyewitness testimony was responsible for almost ____ of proven wrongful convictions in the USA

3/4ths

Intent

The criminal intention in mens rea

Negligence

An act that shows disregard for the well-being of others

People can be convicted of an offence if they meant to commit harm, did not care about the outcomes of their actions, or could foresee that their actions might be harmful. This is referred to as _____.

Intent

Individuals can be arrested for failing to take steps that a reasonable person would take to limit harm and can be the result of an act of commission or omission that shows disregard for the well-being of others. This is referred to as _____

Negligence

Reckless Behaviour

Occur when people act in a manner that they know is dangerous or risky

Driving twice the speed limit in a busy downtown neighbourhood at lunch time is an example of

Reckless Behaviour

Willful Blindness

Occurs when an accused is aware that a crime was likely being committed but chose to ignore the facts. When a person is aware that the law is being violated but chooses not to be fully aware of the offence

Being offered $1,000 by a known drug dealer to transport sealed packages across town that you suspect contains illegal drugs, is an example of

Willful Blindness

R v Askov, [1990] SCR 1199

Issue = Trial within a reasonable time. Charged with conspiracy to commit extortion in November 1983, trial set for 1985, trial scheduled for 1986. Supreme Court agreed with the trial judge, and a stay of proceedings was granted because of the excessive time it took to get the matter to trial.

R v Ewanchuk, [1999] 1 SCR 330

Supreme Court held that there was no defence for implied consent and that no means no

R v Feeney, [1997] 2 SCR 13

Issue: Unreasonable search and seizure. Police investigating a murder entered the home of a suspect after they knocked on the door with no response. They found a man in bed and noticed his clothes were covered in blood and he was read his rights and arrested. The Supreme Court overturned the BCCA, and rules that the police should not enter someone’s home without a search warrant.

R v Gladue, [1991] 1 SCR 688

Issue = The constitutionality of a provision in the CCC to allow for less punitive sanctions based on the historical overrepresentation of Indigenous people in the justice system. 19-year-old Jamie stabbed her common-law partner during an argument and was convicted of manslaughter and sentenced to 3 years in prison. The Supreme Court held that Indigenous people don’t need to reside on a reserve in order to benefit from the provisions of section 718(e), nor should their lifestyle be considered.

R v Mann, [2004] 3 SCR 59

Issue = Police powers when detaining a person as part of an investigation. 2 Winnipeg police officers stopped an individual suspected of being involved in a B&E. A search revealed that the suspect had marijuana, and he was arrested and charged with drug trafficking. The Supreme Court overturned the Court of Appeal’s decision, finding that the original acquittal was correct and that the police didn’t have the right to search beyond a pat-down to ensure the individual didn’t have a concealed weapon.

R v Martineau, [1990] 2 SCR 633

Issue = Mens rea requirement for murder. An adult and 15-year-old carried out a robbery at a trailer that resulting in a double murder. The adult shot both victims, was convicted of murder, and the youth was charged with second-degree murder. The youth maintained that he didn’t know a violent crime was planned, yet he was convicted. The Supreme Court overturned the youth’s conviction and ruled that he didn’t have the intent to kill or the knowledge that a murder would occur.

R v Morin, [1992] 1 SCR 771

Issue = Trial within a reasonable time. A woman was charged with impaired driving in January 1988, and the trial didn’t occur until March 1989. The Supreme Court dismissed the appeal and clarified what constituted a reasonable delay

R v Seaboyer, [1991] 2 SCR 577

Issue = Evidence relating to the sexual reputation of a complainant of sexual assault. The suspect was accused of the sexual assault of a woman he had been drinking with in a bar. At trial, the judge didn’t allow the accused to cross examine the complaint any with respect to her prior sexual history. The Supreme Court clarified the law and rules that the court of appeal’s decision of a retrial be dismissed and that the suspect’s conviction would remain.

R v Stinchcombe, [1991] 2 SCR 326

Issue = Crown’s duty to disclose evidence to the defence. A lawyer was being tried on charges of theft and fraud, his defence attorney requested access to information collected by the Crown; the request was refused and the defence was later convicted. The Supreme Court disagreed with Alberta’s Court of Appeal’s decision, and ordered that a new trial be conducted. The Supreme Court ruled that the Crown has the duty to disclose all relevant information to the defence, even if that information could lead to an acquittal.

R v Stone, [1999] 2 SCR 290

Issue = Determining the proper test for automatism. The suspect killed his wife and claimed the offence was involuntary due to psychological factors including insane automatism and non-insane automatism. The judge allowed for a defence of insane automatism and the suspect was convicted of manslaughter and sentenced to 7 years. The Supreme Court found that the conviction was appropriate and used this case to establish guidelines for defendants using the insane and non-insane automatism defence.

Three main defence strategies

Alibis, justifications, and excuse

Alibi Defences

Witnesses or other forms of evidence that show that the defendant couldn’t have committed the offence.

In the case of R v Cleghorn (1995) the Supreme Court decided that alibi evidence

Must be adequate and timely

Adequate Alibi

One that contains sufficient detail to allow the police to verify its validity

Timely Alibi

One that is revealed to authorities well before trial which provides the police with enough time to conduct a proper investigation.

Prior appellate court decisions have ruled that an alibi that has been found fabricated by the defendant

Can be used against them when the judge or jury is deliberating their guilt.

Justification Defences

An individual admits to committing an act that is being prosecuted as a crime, but argues that the act was justified due to particular circumstances, such as if committing the act was considered the less serious option available.

Justification defences for committing crimes include

Consent, duress, entrapment, necessity, provocation and self-defence (or defence of others)