Law Unit 3

3 levels of Sentencing

1. Summary conviction offences - less serious crimes 
2. Indictable offences - most serious crimes 
3. Hybrid offence - could be more serious or less serious (decided by the crown)

Summary Conviction Offences 

* Less serious crimes
* Minor offence carrying light penalty (fined up to $2000/ prison for 6 months)
* Dealt w quickly and processed through court system swiftly
* Takes place in lower court - provincial courts
* Quasi-Criminal Laws but this falls in Provincial Jurisdictions (distracted driving)

Indictable Offence

* Serious carry heavier penalty (2 years up to life in prison)
* Offences that has a penalty of

Hybrid Offence (Dual Procedure Offence)

* Crown decides to try as either summary or indictable offence (eg. fraud less than $5000)
* Must be treated as indictable until charges are laid 
* Crown must decide how to treat offence based on particulars of the case 

Homicide

a person who commits homicide directly or indirectly by any means which causes the death of a human being

**Culpable Homicide**

a killing where the accused can be held legally responsible (someone intentionally killed or due to their recklessness) 

**Non-Culpable Homicide**

a killing where the accused cannot be held legally responsible (death caused be an accident)

Murder 

The Intention killing of another in the form of culpable homicide.

**First-Degree Murder** 

* planned & deliberate
* one person hires to kill
* victim is a police officer 
* Prison employee or someone else who preserves public peace
* Murder committed while trying to commit another crime (hijacking, sexual assault w/ weapon, kidnapping, etc.) in these cases murder doesn’t have to be planned to be first degree 

Sentencing for first-degree murder

life in prison

* First must serve 25 yrs before they can apply for parole 

**Second-Degree Murder**

* Any murder that doesn’t fit in the 4 categories of first-degree murder

Sentencing for second-degree murder

life in prison

* must serve 10 years then apply for parole 

Infanticide

When a mother kills her newborn child

3 circumstances for Infanticide

1. Accused must be natural mother 
2. Infant must be less than 12 months old
3. At time of killing mother must have suffered from mental disturbance caused by not being able to recover from giving birth

Max sentence for infanticide

5 years in prison

Manslaughter

* Any culpable homicide that is not murder or infanticide (not intentional)
* Actus reus: wrongful act that resulted in death
* To avoid murder charge accused must prove they did not know their actions would result in death but their actions were still **reckless** **-** Mens Rea

Provocation

* Act or insult causing person to lose self-control 
* Only applies to murder 
* Can be used as partial defence to get charge of murder to reduce to manslaughter 

4 Elements of Provocation

1. Wrongful act or insult occurred 
2. Act or insult was sufficient to derive an ordinary person to lose self-control
3. Person responded suddenly 
4. Person responded before time for emotions to cool

Max sentence for manslaughter

life in prison

Assault

* Intentionally applying force to a person w/o consent 
* Attempting or threatening by act or gesture to apply force 
* Accosting or impeding another person or begging while openly carrying a weapon or what looks like weapon 

Assault 1

1. Hybrid offence that carries max sentence of 5 years (pushing someone, threatening someone w/ violence)

Assault 2

Hybrid offence that carries a max sentence of 10 years (assault w/ weapon and/or causing bodily harm)

Assault 3

Indictable offence that carries a max sentence of 14 years (most violent level **aggravated assault -** wounding maiming, disfiguring or endangering the life of a person)

Sexual Assault

2 types:

indecent assault (level 1 & 2)

rape (level 3)

Sexual Assault 1

most common type and where the victim suffers the least about of physical injury, is a hybrid offence that carries a **max sentence of 10 yrs** 

Sexual Assault 2

Sexual assault w/ weapon carries a **max sentence 14 years**

Sexual Assault 3 (

Aggravated sexual assault - wounding, maiming, disfiguring or endangering the life of victim who is sexually assaulted **max sentence of life**

3 reasons consent cannot be used as defence

* When a victim says no either in words or actions 
* When accused is intoxicated and cannot determine whether consent was given 
* Accused was reckless or blind to victims response and didn’t find out if victim was consenting

Assisted Suicide

* anyone who **counsels** or helps person commit suicide is guilty of a crime

Max sentence for assisted suicide

14 years 

Dangerous Operation of a Motor Vehicle 

Vehicles can include: cars, snowmobiles, motorcycles, boats, etc. 

* To convict someone of this crime the Crown must prove that accused had endangered the lives of others 

Sentencing for Dangerous Operation of a Motor Vehicle 

* Hybrid offence carrying max sentence of **5 years** 
* If caused bodily harm would be hybrid **max 10 years** 
* Driving in a dangerous manner causing death **- indictable max 14 years** 

Failure to Stop at the Scene of an Accident 

* Anyone involved in car accident who fails to stop, offer help, give name and address shows that the person wanted to escape and can be charged

Sentencing for Failure to Stop at the Scene of an Accident 

* No injury → Hybrid w/ 5 years max
* Bodily harm → Hybrid w/ 10 years max
* Death → indictable w/ life

Impaired Driving

* Due to alcohol or drugs 
* Blood alcohol level can be no more than 80 mg per 100ml of blood
* If police believe person is impaired they can ask for a breathalyzer/swab test - **cannot refuse**

Sentencing for impaired driving

* No injury → Hybrid w/ 10 years max
* Bodily harm → hybrid w/ 14 years max
* Death → indictable w/ life

Drug Possession

State of having knowledge of & control over something

3 conditions of drug possession

1. Must know what  the substance is and have control over it 
2. Even if the person in possession gave the substance to someone else 
3. Even if doesn’t own the drugs or have it in their possession as long as person has knowledge about the drugs & consent to possession for someone else - **based on consent**

Sentencing for possession of:

* Opium (codeine, morphine, heroin)


* Cocaine
* Methadone

**Indictable** → 7 years 

**Summary Offence** 

* 1st offence → max $1000/ 6 months 
* Next offence → max $2000/ 1 year

Sentencing for possession of:

* Cannabis (cannabis resin, hashish) & marijuana
* Different amount now - over 30 grams

**Indictable** → max 5 years

**Summary Offence**

* 1st offence → max $1000/6 months 
* Next offence → max $2000/1 years 

Taking over Canadian border or selling to minor → max 14 years 

Sentencing for possession of:

* Amphetamines and derivatives including methamphetamine (speed) and MDA (ecstasy), LSD, DMIT, Psilocybin & mescaline 

**Indictable** →  3 years 

**Summary Offence** 

* First offence → max $1000/6 months
* Next → max $20000/1 year

Sentencing for possession of:

* Barbiturates 
* Diazepam (valium)
* Anabolic steroids 

not an offence

sentencing for possession of:

* Phenylpropanolamine 
* Propylhexedrine 
* pyrovalerone

not an offence

Drug Trafficking 

* Sell, give, transport, send, deliver or distribute substance or sells prescription drugs 
* Crown must prove accused had possession and intent to sell
* Can show amount of drugs found exceeds personal amount 
* Other evidence like bags, scales, list of names, or large amounts of money

Insanity Defence (Mental Disorder)

can be used in the following instances:

* Mental disorder left accused unable to appreciate nature and quality of act (cannot foresee consequences)
* Left accused not knowing their actions were wrong 

3 possible choices when judge “makes an order” if accused is not found criminally responsible for insanity

* ==**Absolute discharge**== **-**  not a threat to society and released 
* ==**Conditional discharge**== **-**  have to see psychiatric doctor regularly/take medication and avoid certain locations or people 
* ==**Period in psychiatric hospital -** ==max 90 days then case is turned over to provincial criminal code review board for review 

Fit to Stand Trial

* Before trial court must determine whether accused is able to stand trial - mentally be able to understand proceedings 
* Person is presumed fit to stand trial unless evidence shows that they have mental disorder preventing them from understanding trial process, consequences, or how to instruct counsel 
* If accused is not fit to stand trial judge will order assessment & decide course of action based on report

Automatism

Condition where person acts without awareness of what they are doing 

Insane Automatism

* caused by mental disorder 
* Found not criminally responsible 
* Usually results in psychiatric state in hospital as they are threat to public 

Non-Insane Automatism

* Drunk or stoned to point of no self-control 
* Even if drunk or stoned you are still responsible for your actions 

Automatism Exemption 1:

Specific intent to commit crime: mens rea cannot be proven here but recklessness (getting drunk) can 

Automatism Exemption 2:

Extreme intoxication which almost counts as mental disorder 

What was the amendment in the criminal code regarding sexual assaults?

cannot claim intoxication for sexual assaults (self-induced intoxication) 

* This precedent was **set by R v. Daviault 1994**

Twinkie Defence 

Derisive label for improbable legal defence 

Mistake of Law

* Ignorance of law is not excuse 
* defence that relied on wrong legal advice from an official responsible for enforcing a particular law 

Mistake of Fact 

* Defence that accused made an honest mistake that lead to breaking of law 
* Depends of defendant having mens rea 
* Have to assume that mistake was honest and reasonable

Double Jeopardy

* Legal doctrine that an accused person cannot be tried twice for the same offence
* After person has been tried for an offence and finally convicted or acquitted, person cannot be tried again for the same offence 

==which is why police take lots of time to gather enough evidence to ensure defendant is guilty of charge bc they cannot try them for the same crime of same case==

Alibi

* Defence raised by accused claiming that he or she was somewhere else when the offence was committed
* Evidence is given by witnesses to support the defendants claim that they were not present at crime scene, strengthening alibi defence 

Entrapment 

* Defence against police conduct that illegally induces defendant to commit crime 
* Undercover officers may pretend to be criminals and present a suspect with opportunity to commit a crime 
* They cannot harass, bribe, or induce the person to break the law

“stay” the proceedings

does not mean accused has been found not guilty, but reflects conduct of police or Crown, suggesting their behaviour violates standards of just society 

* done when judge finds an abuse of power

Self Defence

* Person may use force to defend themselves against unprovoked assault, but have no intent to kill or cause serious bodily harm to attacker 
* Person can only use force to escape attacker - must be reasonable 
* If victim was threatened with bodily harm and feared death than they have right to protect themselves at all costs 

Battered Woman Syndrome 

* Prolonged spousal abuse 

3 elements of battered woman syndrome

1. Why an abused woman might remain in abusive relationship 
2. Nature and event of violence must be present that would exist in battered relationship
3. Defendant’s ability to perceive danger from abused at that moment 

Defence of Dwelling

* Dwelling is whole or any party of building or structure that is occupied on permanent or temporary basis (home)
* Person can defend their dwelling against any unlawful entry with reasonable force 

Necessity 

* Person had no reasonable alternative but commit crime

Conditions of Necessity

1. Show act was done to avoid greater harm 
2. No reasonable opportunity for different course of action that did not involve breach of law
3. Harm inflicted must be less then harm avoided

Compulsions or Duress

* Person commits crime when they are forced to due to threats or bodily harm to themselves or others 
* Will be excused for their crime if person thinks threat will be carried out immediately 
* Threat must be physically present meaning criminal must not be calling or texting from different locations

Protecting the Public

* Always main goal judge tries to use 
* Sentence that protect person or their property or their individual rights & freedoms 
* Person committing the crime hurts victim, as well as public (ppl feel unsafe in their community until criminal has been caught)

Retribution 

* Punish offender to avenge a crime or satisfy the public that the offender as paid for their crime 

Deterrence

* Giving a punishment that will send message that is someone commits a crime they will be punished accordingly 
* Purpose to prevent a crime from happening again 

Specific Deterrence

discourages criminals from re-offending 

General Deterrence

discourages society from committing similar offences

Rehabilitation

* Used by judges but unlike youth sentencing is not always main goal 
* Treating problems that interfere with an offenders ability to function in society

Recidivism

offender returns to crime after release from prison 

Restitution 

Offender will pays society bac for the injury, loss, and suffering they caused - monetary service or community service

Denunciation 

* Judge sense a message that the offender’s conduct has violated society’s basic code of values and their conduct will be punished 
* Eg. michelle carter’s involvement in her boyfriend’s suicide

Parole 

* Inmate’s conditional release before sentence has been completed 
* Offenders may be reviews for parole once ⅓ of their sentence has been served or seven years, whichever is less except offender convicted of murder 
* Certain conditions must be met 

National Parole Board

decides parole 

* When releasing an offender must consider the protection of society 
* Parole is granted only to those who will not create a threat to society once they re-enter it

Conditional Release

doesn’t shorten but allows offender to serve rest of time in community (ie. 5 year jail sentence - 2 years in jail + 3 years parole)

Unescorted temporary absence:

brief release from jail for personal reasons : medical issues, family, community service, etc. Will return to prison after personal reasons have been sorted out. 

Work Release

escorted or unescorted release given to work in the community for pay or voluntary basis. They will return to jail or halfway house at night.

Day Parole

low risk offenders, after ⅙ of sentence is served can leave for the day but are required to return to jail or halfway house at night.

Full Parole

after serving ⅓ to ½ are eligible for full parole 

1st degree-murder eligibility for parole

eligible for parole in 25 years but can apply early after 15 years, rarely granted 

Conditions for parole release

* Travel directly to home which the address is listed on release certificate 
* Give parole officer address, report any changes to address, employment, financial situation and anything that might effect parole 
* Remain in canada within the boundaries set 
* Obey law and keep peace
* Inform parole officer if arrested or questioned by police 
* Always carry release certification and ID card given by the releasing authority and show it when asked 
* Report to police when instructed by parole officer 
* No weapons allowed 
* If on day parole return to jail on date and time specified on release certificate 

Pardon

a person’s record of conviction is set aside 

how to apply for a pardon

* convicted for summary offence can apply after 5 years of sentence has been served
* indictable after 10 years
* cost to apply is $631

National Parole Board can withdraw a pardon for:

* Conviction of summary offence
* Unacceptable conduct
* False info at time of application 

Small Court Claims

* informal trial in front of judge
* max $10,000 that person can sue

Superior Courts of the Provinces /Territories

* cases above $10,000
* lawyers typically involved
* heard by judge w/ or w/o jury of 6 ppl

Provincial & Territorial Courts of Appeal

* 3 judges
* can’t overturn decision, but order new trial

Supreme Court of Canada

* highest court
* 9 judges
* decisions made here provide case law - precedent for lower courts

Federal Court of Canada

* matters involving crown or issues within federal jurisdiction

Reasons for Civil Action 

1. Torts (civil wrongs) 
2. Breaches of contract 
3. Unpaid debts 
4. Consumer problems 
5. Landlord/tenant disputes 
6. Property dispute 
7. Family matters (child custody, divorced, property division)
8. Bankruptcy

Plaintiff

the person suing 

Defendant

the person being sued

Litigations 

process of suing

litigants

parties involved

burden of proof in civil action

rests of plaintiff to prove their case

* doesn’t have to be beyond reasonable doubt

Balance of Probabilities

the judge decides which case is more convincing