Law exam

Knight vs Indian night school 

• Supreme court decision 

• Janitor with school board and was dismissed 

• Dismissal was wrong because there was no due process before 

• Wasn't told why he was let go 

• this test brought up due process

Due process test 

• Was the decision final - The decision was final 

• What was the relationship between person who complanded and the governing body - Employer and employee relationship, power imbalance

• Did that decision have an important impact on the person who complained - Huge impact 

• Court found there was a duty of process and should have been advised before he was terminated 

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Lecture from taylor - real estate - key

• Names and legal description - need to know exactly what is being purchased and that the seller has the legal right to sell. Legal description often indicates what is on time  

• Dates - time of the essence, deadlines are hard deadlines 

• Conditions - buyers safety net

Lecture from taylor - real estate  - role in residential purchase

• Review agreement of purchase and sale

• Conduct title search 

• Liaise with lender, relator, sellers lawyer 

• Prepare closing documents and meet with client 

• Register transfer and mortgage 

• Deliver keys and final report 

Lecture from taylor - real estate - why are real lawyers essential

• Title defect, freud, taxes

• Mortgage is registered 

• Protected by title insurance

R v. Jordan 2016

Importance 

Section 11 - right to be tried within a reasonable time period 

• Witnesses recollection fades over time 

• Right to be presumed innocent and should be allowed to not have to stay in jail for years and allow people to believe you are guilty 

• Threshold of when a case must be tried 

  • Inditable offence - must be tried within 30 months 

  • Summary office - must be tried within 18 months 

  • Summary offence - least serious - imprisonment cannot be more than 2 years 

  • Indictable offence - more serious -  imprisonment of 2 years of more 

Role of defence counsel in a criminal proceeding – what it is - matt

• proof beyond a reasonable doubt

• This is based on very important principle that we don’t want innocent  people to be convicted of criminal –

• Lead the accused person through the criminal process

• Sentencing options – vast majority of cases end with some sort of resolution.

ii. Absolute or conditional discharge – no criminal record after a 

finding of guilt

iii. Suspended sentence with probation

iv. Fine

v. Jail

vi. Orders – such as DNA, sex offender, weapons, non-attendance,

Restraining

Every criminal prosecution follows this pattern - matt

1. Charge is laid 

2. Disclosure is produced to defence – accused is entitled to know the case  against him or her. What can the Crown prove and cannot prove? What is disclosure?

3. Pretrial with Crown, which can be followed by pretrial with judge - settlement (resolution) vs. trial

4. Preliminary hearing can be had in complex cases – not a right in every case – to determine if enough evidence to go to trial

5.  Pre-trial motions sometimes – to exclude evidence

6. Trial 

• Crown goes first, Examination-in-chief followed by crossexamination of every witness

• Some evidence can be done on consent – undisputed facts

• Defence makes decision as to calling evidence – Accused does not have to testify.

• Arguments about the law before verdict

• Sentencing if convicted

Canadian Charter of Rights and Freedoms – constitutional rights that every person has in Canada. - matt

1. actions of police when dealing with accused.

2. Charter is an important tool to have as defence counsel

3. Actions of police - examples of how that can come into play 

4. Remedies under the Charter – stay, exclusion of evidence

Certain type of defence -defence of duress

R v. Ruzic 

• Brought in heroin 

• She was forced to bring it in or her mom would have been killed 

• She was 21 and sole care giver of her mother 

• She did not go to police because of corruption, no police presence, police were acting with drug trafficker 

• They threatened to rape her, put needle in her arm and burned her 

• Fought defence necessity and defence of duress 

• She was let off since she had an expert witness to prove corruption in other country 

Certain type of defence -defence of autonomism

R v. Parks 

• Parks had defence of autonomism of sleep walking 

• He got up and drove to his in-laws house and tried to strangle his father-in-law to death and hit his mother-in-law with an object and the mother died. The father survived 

• Defence was successful 

Why it was successful 

• Long history of sleep walking 

• Expert witnesses and father in law agreed he was sleep walking

delay in cases = Askov

• Cases that were being stayed because of Ascoff motion 

• Section 11b of charter 

  • The person is to be tried within a reasonable time period 

  • This is without Jordan cases 

• Ascoff motion test 

  • Was not tried within 3 year period so defence counsel brought a motion to stay a proceeding and they have to address the following 

    • Length of the delay 

    • Any waiver of this right by the accused - if the accused says they aren't getting for the trial 

    • Reason for delay 

    • Any prejudice to the accused because of the delay 

• Burden of proof on the defendant to prove 

• Because of this case many of other cases got stayed

r v feeney - fruit of poisoned

• Police out west found body of 85 year old man

• Found in ransacked home 

• He was brutally killed and blungered to death likely with a crowbar 

• RCMP had suspicion that Feeney did it 

• RCMP drove to Feeney's trailer and knocked on the door, Feeney responded and the RCMP opened the door without Feeneys permission 

• When RCMP observed hom they noticed he had blood splattered on his shoes and shirt  

• With DNA testing they found it belonged to the victim 

• This was an unreasonable search and seizure to section 8 

• Section 10B of the charter - right to be advised of counsel 

• Court held that all evidence obtained did not meet the test and evidence was excluded 

• 24sub2 analysis 

  • What was the seriousness of the charter infringing conduct (of the police) 

  • The impact of the breach of charter protected interest of accused 

  • Societies interest on the adjudication on the case on merits 

• Police had a blatant regret for the accused rights 

• What the court said - the price paid by society of the acquittal in these circumstances outway the importance of the charter standards 

fruit of a poisoned tree

• Theorists call this the “fruit of a poisoned tree:” all of the evidence that comes from an illegal act must be discarded because it is all tainted.

When a judge is rendering a decision 

• Bases of the offender 

• Perspective of victim of complainant 

• Look at society as a while

Varies principles that are relied upon 

• Denunciation - society disapproves of a crime and believes that someone who has committed a crime must be condemned for their behavior 

  • Informs the public of what society would tolerate 

  • Societal values 

• Deterrence - control other because they fear punishment 

  • Specific - aimed at the individual on the act that they have committed 

  • General - aimed at society at large 

• Should there be imprisonment 

  • If the conviction is for 2 years of less - would serve at provincial facility 

  • If the conviction if 2 years of more - serving at federal penitentiary 

  • Intermediate sentence - serves jail time on weekend and in society during the week 

• Rehabilitation 

  • Specialized courts - drug courts, mental health court 

• Restitution - if victim can be whole again through the payments of money 

Know about mens rea and different types 

Mens rea - the mental intent to do the act 

• Subjective - Factors 

1. What in accused minds 

2. Accused feel below standard foe that person 

3. Much more blame worthy 

4. Used for most serious offences 

• Objective - Factors 

5. What is expected of a reasonable person 

6. The accused actions fell below the standard of a reasonable person 

7. Less blame worthy 

8. Not used for the most serious crimes

Guilt test - oaks tests

Government to prove that… 

1. Is there a violation of the charter 

2. The objective of the legislation must be pressing and substantial - has to be a really good reason why this right has been violated 

3. The law has to be rationally connected to the pressing and substantive objective - the law has to be connected and rationally connected 

4. Does it minimally impair the charter right - is it a big violation of the charter right or just enough to make sure societies rights are protected 

5. Has to be proportionality between the violation and the objective - beneficial effect of the law does not outweigh the negative implications and charter rights impaired 

• If government fails any of these steps then it is inconsistent with section 52 

oaks case

• Oasis was caught with 6-9 vials of hash oil 

• Narcotic act - if you had x amount of controlled substance you were automatically deemed for trafficking 

• Challenged - there is a presumption of innocence entrenched in the charter 

• It is up to the crown to prove the defendant is guilty, presumed innocent until proven guilty 

• Revered onus where is goes from the crown to prove then to the defendant to prove 

• Supreme court said narcotics act needs to be stricken down

• Section 1 - even though there is a violation is it justified 

Section 52

• If a law is inconsistent with the constitution it has no course or effect 

Section 91 and 92 

• Division of power between federal government and provincial 

• 91 - federal - immigration 

• 92 - provincial - transportation 

• What happens if overlap - doctrine of paramountcy - federal law take hierarchy over the provincial when there is a conflict between them 

• How reference application comes forth 

1. Question must be brought forward federal

2. Question deals with request to judiciary to give its opinion upon the constitutionality or legality of provision of legislation 

3. Such question is raised even if it is not currently a dispute, it affects the population at large 

Defence of necessity 

• The defence of necessity refers to situations in which crimes are in a sense involuntary; one

• is forced to do something he or she may otherwise not have done in reaction to the circumstances. 

Test for defence of necessity

1. Must be clear and emanate danger 

2. Absent of legal alternative 

3. Harm inflicted must be less then what's avoided - must be proportional 

Defence of duress 

In order to meet this test 

1. The threats must be death or serious bodily harm 

2. Threats must be sufficiency serious that accused believe that they would be carried out 

3. Threats of such gravity that using R&T test that a  reassemble person would have acted same in those circumstances 

4. No avenue of safe escape 

5. Must be proportionality between threat and reaction 

6. Defence is not available if threat is put in because they are in the middle of a criminal organization 

Defense of autonomism  

• “a state of impaired consciousness ... in which an individual, though capable of action, has no voluntary control over that action.”

Mr. Big

 Undercover operation where a suspect is recruited by a fictional crime operation and gradually persuaded to confess to the crime

Chimera

• Greek mythology - the being has multiple head 

• Possibility that your DNA may be different then offsprings DNA even if you are the biological parents 

  • Example: has 2 kids and needs more money from social assistance, the social  worker investigated and was DNA tested. The DNA between the kid and mom didn't match. She has another kid and asks for more money and the DNA still doesn't match. Mouth swab between kid and mom did match though 

gladue principle

• mandates that courts consider the unique systemic and background factors (Gladue Factors) of Indigenous offenders (First Nations, Inuit, Métis) during bail, sentencing, and other legal decisions,

Different types of parties in an offence 

• Developed under common law under 22 and 23 of criminal code 

1. The principle - someone who actually committed the offence 

2. The aider - enables the person to commit the offence (holds gun to peoples head so other can commit the crime, get away driver)

3. The abierter - encourages another person to commit an offence 

4. The counselor - plans the crime and convinces the person to commit the crime 

Human rights code 

Adjudicator - autonomy for decision

• Tribunal if applicant can prove 1% of failure of duty to accommodate they are entitled to award 

• Violation of human rights for awards range from 500-35,000 - for the high point usually sexual in natural or long time period of human rights violation 

• No costs to be recovered, usually mediation is to avoid legal fees 

Rewards in mediation 

• Money 

• Donaction 

• Acknowledgment of wrongdoing 

• Mediation can be as creative a possible and not bound to anything  

Human rights tribunal 

Protective ground

• Age 

• Ancestry, race, color 

• Citizenship 

• Ethnic origin

• Place of origin 

• Creed 

• Disability 

• Family status 

• Marital status 

• Gender identity 

• Receiving of public assistance - in housing 

• Record of offences - employment 

• Sex - pregnancy and breastfeeding 

• Sexual orientation

Social area 

1. Accommodation 

2. Contracts 

3. Employment 

4. Goods, services, facilities

5. Membership and unions or professional associations 

The barking frog 

• Men had to pay more than women on ladies night to get into the bar 

• Complaint was made to the human right tribunal 

• Did not accept the argument - substantial equality and not all differential treatment is unlawful, or discriminatory

plea process

• Initiation

  • Occurs after charges are laid, usually before trial, though it can happen at any stage.

  • Conducted between the Crown prosecutor and defence counsel

• Discussion / Negotiation

  • Counsel openly discuss the evidence and strength of the case

• Agreement Formation

  • The accused agrees to plead guilty, giving up the right to a trial.

  • In exchange, the Crown agrees to take or refrain from specific actions.

• Possible Crown Concessions

  • Reducing, withdrawing, not pursuing charges

  • reduced sentence

• Judicial Role

  • The judge is not bound by the agreement and may impose any lawful sentence.

Plea bargaining pros & cons

Pros 

• Speeds up court system 

• Prevents costly delays 

• Saves resources of public 

• Provides closure for society and police 

• Saves ordeal of victims testifying 

Cons 

• More lenient sentence 

• No trial - infringe due process 

• Hurried affair 

• Victims feel no sense of justice 

• Pressure on defence council to engage 

• No guarantee judge will agree to plea bargain