Exam Review: Law PDF

Exam Review: Law Roots of Law: -​ Code of Hammurabi: Hmmurabi was the king of Babylon between (1792-1750 BCE). The code of hammurabi was a written set of laws, including punishments of robbery, land destructions, and marriage rights and laws reflecting a male dominated...

Exam Review: Law Roots of Law: -​ Code of Hammurabi: Hmmurabi was the king of Babylon between (1792-1750 BCE). The code of hammurabi was a written set of laws, including punishments of robbery, land destructions, and marriage rights and laws reflecting a male dominated patriarchal society, in which the more wealthy were better protected than the poor. Women were considered property of men, and slavery was legal. -​ Mosaic Law: Mosaic law is considered biblical law. The set of 10 laws also follows the name of the 10 commandments. Even though they were said to be given to Moses 500 years after Hammurabi passed, they still follow the same values: no murder, no adultery, no theft, etc. Aside from similarities, mosaic law focuses on punishing deliberate action over accidental acts of harm. -​ Greek law: Greek law was the first form of democracy. The right of opinion of citizens exempt women, children, aliens, and slaves. Greek jury used democracy to decide the sentence of the accused -​ Roman Law: The two basic principles of Roman law is that the law must be recorded and justice should not be left in the hands of the judge alone. -​ Justinian Code: Emperor Justinian sent 10 men to review all 1600 roman law books, to create the new code of law. It inspired modern law and formed the basics of civil law. It can be found in elements of many European countries' codes of law. -​ Napoleonic Code: Napoleon Bonaparte gained political control after the french revolution. The Napoleonic code is also known as the french civil coke. It regulated all cibil matters such as property, wills, contracts, family. Sources of Law in Canada: -​ Constitutional Law overrides statute law -​ Statute law overrides common law Constitutional Law: -​ Body of law that determines structure of the federal government -​ Divides law making powers between the federal and provincial governments -​ Limits the power of governments by setting out certain basic laws, principles, and standards other laws must adhere to. -​ Overrides all other laws -​ Any laws not in accordance with the constitution will be struck by the courts as unconstitutional Statute Law: -​ These laws are passed by elected representatives -​ Acts are passed into law in parliament or provincial legislatures -​ Many laws today are Statute- common law decisions that have been codified -​ Statute law overrides common law -​ Common laws only prevails when no statute law exists -​ When a judge interprets and applies a statute law the decision sets precedence Common Law: -​ Common to all and constantly evolving -​ Also called case law because its sources include decisions made in previous cases -​ Lawyers also look or favourable precedents to argue the outcome of cases -​ Rule of precedent does not always apply -​ A case may be sufficiently different warranting a different decisions -​ This is called distinguishing a case Retribution vs. Restitution Retribution: Justice based on vengeance and punishment. Eye for an eye situation. Restitution: Payment made by the offender to the victim of the crime. Ex. Paying for damages you caused like breaking a window. Three Levels of Government in Canada and their Responsibilities -​ Executive: The president, his or her advisors, and various departments and agencies (federal level) -​ Legislative: Made up of the House and Senate, known as the congress. Makes all the laws, declares wars, regulates interstate and foreign commerce, controls taxing and spending policies. -​ Judiciary: The court system. Interprets laws and ensures they align with the constitution. Consists of the supreme court. Categories of Law International Law (Int’l) -​ Governs the conduct of nations in relationships with each other (agreements between countries) -​ International treaties or agreements are binding -​ Canadian examples: extradition treaties, free trade agreements (USMCA) and defense treaties (NATO) -​ Some organizations have international legal status: develops laws and act as a court to settle disputes (UN and International Court of Justice) International Court justice: -​ Settles the legal disputes submitted to it by states -​ Gives advisory opinions on legal questions from authorized organizations and authorities Domestic Law: -​ Laws made and enforced within a nationals borders (common law and statute law) -​ Each country has its own law -​ Once out of Canada, our laws won't protect us -​ If you break a law in another country, Canada can do little to help. Procedural Law: -​ Methods of enforcing the rights, duties and responsibilities found in substantive law -​ Substantive law – right to fair trial -​ Procedural law – how the trial is conducted -​ Ensures that all citizens are treated fairly Substantive Law: -​ Defines the rights, duties and obligations of citizens and levels of government -​ The right to own and protect property, to enter a legal contract, seek remedies if the contract is broken. Public Law: -​ Regulates relationships between the government and the citizens -​ Public laws are subject to the charter of rights and freedoms -​ Three categories of public law: Administrative law, criminal law, constitutional law. Administrative Law: -​ Victims of violent crimes seeking reparation for injuries or expenses -​ Injured workers seeking compensation -​ Concerns about public buildings -​ Administrative law refers to the many government departments, boards and tribunals that play a role in regulating the relationship between people and the government Criminal Law: -​ Category that attracts the most media attention -​ Criminal law prohibits and punishes behaviour that causes harm to others, such as murder, robbery or assault. Private law: -​ Also known as civil law -​ Applies only to certain people in certain situations (contract breach, suing someone, etc) -​ Legal relations between individuals and between individuals and organizations, not the government -​ Main purpose: regulate conduct and compensate those who have been injured by wrongful actions of others -​ Six sections: tort, contract, family, wills and estates, property and employment law. Tort law: -​ Demands a large sum of money for harm, pain, suffering and financial loss due to the careless actions of others Contract Law: -​ Everyday transactions where people buy or provide foods and services -​ If satisfied with purchase/service received, they pay -​ If unsatisfied they can go to court Family Law: -​ Marriage, property division when separating, custody/child support and divorce Wills and Estates: -​ Laws governing life from birth to death -​ Division of property after death -​ Legal bindings wills outline how estate/assets are divided upon death -​ Wills can be challenged under state law Property Law: -​ Regulates property ownership rights including the ownership and transfer of real estate Employment Law: -​ Relationships between employer and employee -​ Both provincial and federal law What is a Crime? -​ An act or omission of an ac that is prohibited and punishable under federal statute -​ Four conditions must exist to be considered a crime: The act is considered wrong by society, the act causes harm to society in general or to those who need protection, the harm must be serious, the remedy must be handled by the criminal justice system. Two Elements of a Crime Actus Reus: -​ The guilty act -​ Voluntary action, omission or state of being that is prohibited by law -​ Physical act involved in committing the crime -​ Most criminal offences cause harm/loss to a person or group of people, or damage to property -​ Every act is careful noted in the criminal code of Canada so that it is understood by all what the law prohibits: Must have an action that actually happened, also a state of being (being in possession of something that leads to a criminal act), must be voluntary and not forced by another being. Mens Rea: -​ The guilty mind -​ The act was intentional, knowing, negligent, reckless or willfully blind -​ Deliberately doing something that a person knows is wrong -​ Crown can establish mens rea by showing that the accused had the intent and knowledge that what the person did was against the law Forms of Mens Rea: Intent: -​ General Intent: a person commits a wrongful act for one's own sake with no ulterior motive or purpose -​ specific intent: committing one wrongful act for the sake of accomplishing another Knowledge: -​ An awareness of certain facts that can be used to establish mens rea -​ In some cases, the crown can establish mens rea by showing the accused had knowledge of certain facts, (ex. s.368(1)(8) ) of the criminal code states: “Everyone who, knowing a document is forged, uses, deals or actus upon it is guilty of circulating a forged document.” The crown doesn't need to demonstrate the defendant's intent, only that they knew of the monument forging. Criminal Negligence: -​ Reckless disregard for the lives and safety of others, sometimes causing serious injury or death -​ In some cases, the crown can establish mens rea by proving negligence- this means the accused failed under certain circumstances to take precautions that any reasonable person would to avoid harm to another person. Recklessness: -​ Consciously taking an unjustifiable risk that a reasonable person would not take. -​ Another way for the crown to establish mens rea is: not wearing glasses while driving, may cause accident Willful Blindness: -​ A deliberate closing of one's mind to the possible consequences of one's actions. Types of Offences Summary Conviction Offences: -​ A minor offence, light penalty -​ These offences are dealt with quickly and simply -​ Provincial court in 6 months -​ Tried before a judge and no jury -​ If convicted, no criminal record -​ Examples: loitering, causing a disturbance, trespassing, cruelty to animals, faking employment records Indictable Offences: -​ Serious crimes, heavy penalty -​ Offences that have a sentence of less than five years: tried in provincial court or the superior court of the province before the judge and jury -​ Offences that have a sentence of more than five years: tried in provincial or superior court and can be tried in front of a judge and jury. Serious indictable offences are heard in superior court -​ Examples: theft over 5000$, kidnapping, robbery with a weapon. Arson, ,urder, treason Hybrid Offences: -​ Also called a “Dual Procedure Offence” -​ The crown decides to proceed summary or indictable -​ The criminal code identifies an offence as hybrid by stating clearly that it can be treated on a summary or indictable basis -​ Always treated as indictable until charged laid -​ Crown decides how to proceed (depending on the particulars of the case) -​ Long record of arrests or the same crime, may treat as indictable -​ Examples: theft under 5000$, concealing identity during riot, public mischief Participants in a Criminal Trial Judge: -​ I control the courtroom and decide admissibility of evidence if there is no jury, I decide the verdict and sentence. If there is a jury, I ensure the law is followed and the jury understands the role. The jury will decide the verdict and I will give the sentence. Crown Attorney (Prosecution): -​ I represent the government to ensure public safety, I interview witnesses, easearch laws/precedents and generally prepare the case against the accused. Defence council: -​ I represent the accused. If my client pleads not guilty, i must show the court there is reasonable doubt that my client committed the crime Court Clerk: -​ I help the judge by recording exhibits, administering oats, and starting/finishing court sessions Court Reporter: -​ I record everything that is said in the courtroom. I can also create a transcript Court Security Officer: -​ I handle accused persons in custody and maintain courtroom security. Witnesses: -​ I give evidence under oath regarding what I know about the crime. I was given a subpoena to appear on a specific date and if I don't show up I will be found in contempt of court for obstructing justice. If I lie on purpose I get 14 years of jail. The Jury: -​ 12 people who decide guilt/innocence of accused -​ Chosen by crown and defense from a pool of ordinary citizen  -​ Listen to the trial, consider evidence and follow the judge's instructions about the law The purpose of the Supreme Court of Canada -​ Highest appeals court in canada -​ Also deals with constitutional questions referred by the federal government -​ Rules on constitutional questions -​ This court system hears appeals from all other Canadian courts, and its decisions are the final application of Canadian law. They also answer reference questions from the Government, such as whether a proposed legislation is constitutional. Three levels of Police and their responsibilities Municipal: -​ Polives towns and cities -​ Funded by the municipality -​ Duties include: preserving the peace, prevent crime, assists victims of crimes, apprehend criminals, lau charges and participate in prosecution, execute warrants, enforce municipal bylaws Provincial: -​ Jurisdictions in rural areas and unincorporated areas around cities -​ The Ontario Provincial Police (OPP), the Sûreté du Québec and the royal Newfoundland Constabulary are the biggest three Federal: -​ The Royal Canadian Mounted Police -​ They were formed in 1873 -​ They investigate and give protective services for the federal government. -​ They also focused mainly on Customs and Excise, Drug Enforcement, Economic Crime, Federal Policing, Immigration, Proceeds of Crime, Criminal Intelligence, international liaison, and protective service Describe Police Involvement in Investigation of a Crime Four Officers at the scene: Patrol officers: -​ Usually the first on the scene -​ Make arrests if necessary -​ Secure the scene with yellow police tape Scenes of crime officer: -​ Trained in evidence collection and preservation Criminal Identification Officer: -​ Searches the crime scene -​ Gathers evidence and sends it to lab Criminal Investigations Bureau Officer: -​ Plain clothes detectives -​ Supervises the investigation -​ Specializes in robbery, homicide, etc. Participants of a crime -​ Perpetrator: one committing the crime (ex. robber) -​ Aider : someone involved in the crime but not committing it (ex. distracter) -​ Abettor: Encourages someone to commit a crime -​ Councillor: Advises someone how to commit a crime -​ Accessory after the fact: Helping after the crime party to common intention. If two or more commit a crime and another crime occurs, all people involved are charged with the second offence (ex. Getaway driver) Culpable vs. Non culpable Homocide Culpable: -​ The accused can be held legally responsible for causing someone's death: through an illegal act, criminal negligence , by causing anyone threat/violence/deception to do anything that leads to their death. Non-Culpable: -​ Accused cannot be held legally responsible (no one is responsible) -​ Death called by accident -​ Not an offense -​ Ex: killing in self defence Police in Canada and Investigations: Crime Scene Procedures: -​ Three things police must do when they arrive at a crime scene: call an ambulance, call in reinforcements, search the crime scene The Investigation: What makes a crime scene? -​ Create two boundaries: center and parameter -​ Center: where the offence was actually committed -​ Parameter: around the center where the offender may have been present or have left some evidence Why do we preserve crime scenes? -​ To allow for a thorough search of the scene -​ To seize and collect physical evidence -​ Ensure the evidence seized is admissible during court (contaminated evidence may be inadmissible or lead police to the wrong conclusions Defences for a crime: -​ Defence:denial of, or a justification for, criminal behaviour -​ Most common law is denial -​ May admit to crime but has a defense to excuse/justify actions  -​ Either acquitted or found guilty of a lesser offence Types of Defences: -​ Provocation: any act or insult that causes a reasonable person to lose self control -​ Aboriginal or Treaty Rights: Section 34 of the constitution act of 1982 guarantees to Aboriginal people all their existing aboriginal rights plus any rights that currently exist it will be acquired through land claim agreements. -​ Mistake of Law and Fact: An ignorance of the law -​ Double jeopardy: A person who has been tried for an offence cannot be tried again or “placed in jeopardy” for the same offence -​ Alibi: A defendant who advances the defence of an alibi simply claims that he/she was not present at the time the offence was committed. -​ Entrapment: Refers to the police conduct that illegally induces criminal behaviour. 4 Circumstances that must be Present to use the Defence of Provocation -​ Wrongful act/incident occurred -​ This act or insult was sufficient to deprive an ordinary person of self control -​ The person responded suddenly -​ The person responded before there was time for passion to cool Mental Disorder and Requirements to use as Defence -​ Criminal code definition: “Disease of the mind” -​ Formerly referred to as “insanity defence” -​ If suffering from a mental disorder at the time they are not criminally responsible (NCR) -​ Defence must prove that the person actually sufferers from a serious mental condition -​ Defence must prove that it is most likely that the accused did suffer from a mental d/o than they did not (known as balance of probability) Stages in a Criminal Trial 1.​ Accused is arranged 2.​ Jury is selected 3.​ Judge addresses jurors, asking them to appoint a foreperson 4.​ Crown presents opening statement 5.​ Crown examines witnesses: direct examination of the crown and cross examination of the defence 6.​ Defence can bring a motion for dismissal: if the judge agrees, the judge enters a directed verdict of not guilty. If judge does not agree, trial continues 7.​ Defense presents opening statement. 8.​ Defense examines witnesses: direct examination of the defence and cross examination of the crown. 9.​ Crown rebuts 10.​Defence presents surrebuttal 11.​Counsel delivers closing argument: crown closes first if defence has no witnesses, defence closes first if it has been called 12.​Judge gives charge to the jury  13.​Jury deliberates 14.​Jury returns a verdict Influences on Canadian Law: -​ Although Canadian law reenacts aspects of Mosaic, Creek, Roman, and French law, it is British law that has had the most influence in Canada. A visit to any Canadian courtroom in session demonstrates how much of the past is pres­ent in Today's legal system. For example, in a place of prominence, you will find a photograph of Queen Elizabeth II, the Canadian head of state. The judge, lawyers, and parlics involved sil in an area separate from members of the public. Courl judges and lawyers wear long, black robes; justices in the Supreme Court of Canada wear scarlet robes trimmed with ermine. All of these traditions come from Canada's roots as a colony of Great Britain. Trial by Ordeal: -​ When a lord sitting in judgment was unable to reach a verdict of guilt or innocence based on facts and witnesses, he used a method known as trial by ordeal. The accused was required to undergo torture, and guilt or innocence was determined by the outcome of the ordeal. God was said to be the judge in such situations since, it was believed, evil could never triumph over good. Trial by ordeal was only used when the sentence for guilt was the death penalty. There were several different ordeals, such as "trial by hot iron,""trial by hot water," and "trial by cold water" (called "swimming a witch" when used to judge a case of witchcraft). Early British Law -​ When the Romans conquered Great Britain in 43 CE, they imposed their laws on the inhabitants. Their rule lasted until about 410 CE, when the remaining Roman legions left Britain to deal with threats on the continent against the empire. Roman laws soon gave way to practices that followed local customs and traditions. Trial by Oath Helping -​ Another method was used for less serious charges-trial by oath helping (sometimes known as compurgation, from the Latin meaning "to purify with"). This method required people who knew the accused to swear an oath on the Bible that he or she was innocent. lf they complied, the accused was freed. Would it have been easy for the accused to persuade friends to swear on his or her behalf, regardless of the truth? Perhaps... but at the time most people feared retribution from Cod if they bore false witness (lied under oath). Trial by Combat -​ After the Norman invasion in 1066, trial by combat was introduced to determine guilt or innocence. The two parties involved in a dispute engaged in a duel. Again, it was presumed that God would be on the side of the innocent and that the innocent man would win. Needless to say, many weaker and possibly blameless people were killed.​ Offences against Property Theft: -​ Taking property permanently or temporarily without the owners permission Robbery: -​ The theft of personal property through violence or threat of violence Breaking and Entering: -​ Breaking or opening something in order to enter the premises without permission with the intent to commit an indictable offence Mischief: -​ Willfully destroying or damaging property or data, interfering with any person in the lawful use of property or data Fraud: -​ internationally deceiving someone in order to cause a loss of property, money, or service Prostitution: -​ The act of engaging in sexual services for money Gambling: -​ The betting of something of value with consciousness of risk and hope of gain Defences Against the Person: Infanticide: -​ Infanticide occurs when a mother kills her newborn child. These three circumstances have to be present for the crime to be considered infanticide: mother must be biological mother to the child, victim must be less the 12 months of age, at the time of the crime, the accused had to have been suffering from a mental disturbance caused by not being able to recover from the birth of the child Manslaughter: -​ Section 234 of the Criminal code defines manslaughter as any culpable homocide that is not murder or infanticide. The actus reus of manslaughter consists of killing someone through a wrongful act, even if killing was not intentional. Assault: Level 1: -​ The first level of assault is a hybrid offence and carries a maximum penalty of 5 years in imprisonment. Examples include pushing someone or threatening a person with silence. Words by themselves, however, cannot be considered an assault: they must be accompanied by an act or gesture. Assault comprises any one of the following actions: intentionally applying force to another person, either directly or indirectly, without that person's consent, attempting or threatening, by an act or gesture, to apply force, or accosting, impeding or begging another person, while openly wearing or carrying a weapon or imitation of a weapon. Level 2: -​ The second level of assault is assault with a weapon or causing bodily harm. This type of assault is defined as injuring a person in a way that has serious consequences for the victims health or comfort. It may also involve carrying, using, or threatening to use a weapon. This is a hybrid offense and carries a maximum penalty of ten years imprisonment. Level 3:  -​ The most violent level of assault is aggravated assault, which is defined as wounding, maiming, disfiguring or endangering the life of the victim. This is an indictable offence and carries a maximum sentence of 14 years in prison. Sexual Assault: Level 1: -​ The first level is sexual assault- the most common offence and the one where the victim suffers the least physical injury. Sexual assault is not defined in s.271(1) of the Criminal Code. Generally speaking, it may be defined under s.265(1), as an assault that violates the victim’s sexual integrity. It usually involves touching of a sexual nature that is not inited or consentual. According to Statistics Canada, almost 97 percent of reported sexual assaults fall into this first level. Since Level 1 sexual assault is a hybrid offence, The crown can proceed by way of indictment or summary conviction. The maximum penalty for the first level of sexual assault is 10 years in prison. Level 2: -​ The second level is sexual assault with a weapon, threats to third party, or causing bodily harm, and involves sexual assault in combination with threats or the use of weapons, r that results in bodily harm. This carries a maximum sentence of 14 years imprisonment. Level 3: -​ The third level of sexual assault is aggravated sexual assault which is defined as wounding, maiming, disfiguring or endangering the life of the victim of sexual assault. Because this is the most violent level of sexual assault, an offender can recieve a maximum sentance of life imprisonment. Suicide: -​ Suicide or attempted suicide has not been a crime in Canada since 1972. However, anyone who counsels a person to commit suicide or aids or abets a person to commit suicide is guilty of an indictable offence according to s 241 of the criminal code. Dangerous Operation of a Motor Vehicle: -​ A motor vehicle is defined in s.2 of the criminal code as a vehicle that is drawn, propelled, or driven by any means other than muscular power. To convict an accused of dangerous operation of a motor vehicle, the crown must prove that the safety or lives of others were endangered because the driver failed to exercise the same care a prudent driver would have exercised under the same conditions. This offence can be committed in a number of ways, depending on the manner and circumstances in which the vehicle is operated. Failure to Stop at the Scene of an Accident: -​ According to s. 252(2) of the criminal code, anyone who is involved in a motor vehicle accident and does not stop, offer assistance and give his or her name and address is presumed to show intent to escape civil or criminal liability. Impaired Driving: -​ The proof that a driver is impaired, either by drugs or alcohol, can come from a number of sources. A person's erratic driving, slurred speech, or inability to walk a straight line, or the smell of alcohol on his or her breath can serve as proof of the driver's impairment.  Another source of proof is a breath or blood test, both of which measure the amount of alcohol in the person's blood stream. Justification: Justifications: In some situations, an accused is exonerated from committing an apparently criminal act because the circumstances justified or excused his or her conduct. Self Defence: -​ The use of reasonable force to defend against an attack Necessity: -​ A defence stating that the accused had no reasonable alternative to committing an illegal act Provocation: -​ Words or actions that are insulting enough to cause an ordinary person to lose self control. Evidence: Direct vs circumstantial: Direct evidence: -​ Testimony by a witness to prove an alleged fact (eyewitness) -​ Acid test: if you believe the evidence (ie. eyewitness testimony), then you are forced to conclude that the accused is guilty. There are no other inferences that can be made. Circumstantial: -​ Indirect evidence that leads to a reasonable influence of the defendant's guilt. To be admissible the defendant's guilt must be a conclusion drawn from the evidence. -​ Acid test: you can believe the evidence without necessarily concluding that the accused is guilty. There are other possible inferences that could be made. Extra: Justice: Justice in law is the principle of fairness and equality, ensuring that laws are applied impartially and that individuals are treated fairly, with their rights protected. It involves transparent legal processes, accountability for wrongdoing, and providing remedies for harm. Rule of law: Individuals, persons and the government shall obey and be regulated by law. No one is above the law. Rules vs Laws: Rules: Not created by the government and not enforced by the government. They apply to specific people in specific places. Laws: a set of rules created by and enforced by the government. They apply to everyone equally. Canadian Constitution: -​ The constitution is a set of laws containing the basic rules about how our country operates. -​ The constitution came into effect April 17,1982 Rights: Legal, moral or social claim that people are entitled to, primarily by their government. Freedom: Is a right, the right to live your life without interference from the government. Important rights: Democratic rights: s. 3 -​ The right to vote at legal age Mobility rights: s. 6 -​ Allowed to leave and return to Canada Life, Liberty and the Security of the person: s. 7 -​ Noise limitations Unreasonable search and seizure: s. 8 Arbitrary detention/imprisonment: s. 9 Cruel unusual punishments: s. 12 Arrest, detention, and charges: s. 10 and 11 Official languages Trial by Oath Helping: -​ Known as compurgation -​ Accused swore on the bible to prove innocence Trial by Combat: -​ Two parties (victims and accused) partook in a duel -​ Presumed god would be on the side of the innocent -​ Weaker me hired stronger men to fight for them Fingerprints: -​ A patterned mark left on a surface by fingertip -​ Can also come from hands, feet and toes. -​ Unique to each individual and useful in identifying offenders and victims. Two types of fingerprints: Visible fingerprints: -​ A print visible to the naked eye formed when a fingerprint coated in substance touched a surface Latent Fingerprints: -​ Invisible to the naked eye, formed by natural oils and perspiration on the fingertip Dusting: Using a graphite powder the print is lifted from the surface using tape then photographed Iodine fuming: Exposing the areas of cloth or paper with iodine fumes which attached to the print and make it visible Laser: Seat compounds on the print surface absorbs the laser and turns yellow then is photographed