Law Final Exam Review 2024/12/28 PDF
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2024
CLU3M1-01
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This document is a past paper for Understanding Canadian Law. It covers the divisions of law, and includes topics such as Substantive Law, Procedural Law, Public Law, and Private Law. It provides a review of key legal concepts.
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1 CLU3M1-01 Understanding Canadian Law Anni W 2024/12/28 Law Final Re...
1 CLU3M1-01 Understanding Canadian Law Anni W 2024/12/28 Law Final Review ★ Units: Bold/All Caps ★ Main Topics: Bold/Underline ★ Subtopics: Italic/Underline UNIT 1: LEGAL HERITAGE Divisions of Law 1. Structure of Canadian Law 1.1. Substantive Law (Statute/Case) 1.1.1. Relationships between the government and the people 1.1.2. Statute = Written laws 1.1.3. Previous cases decide current case (precedence) 1.2. Procedural Law (Rules) 1.2.1. Methodology 1.2.2. How the court will hear cases 1.2.3. Determine civil vs criminal hearings 1.3. Public Law 1.3.1. Criminal Law 1.3.1.1. Crown vs defendant 1.3.1.2. Guilty beyond reasonable doubt 1.3.1.3. Rules that define criminal acts and offences against society 1.3.1.4. Danger to public 1.3.2. Constitutional Law 1.3.2.1. Laws set out structure of federal government 1.3.2.2. Government divisions of power 1.3.3. Administrative Law 1.3.3.1. Citizens + government agencies 1.3.3.2. Regulatory body, law enforcement 1.4. Private Law 1.4.1. Property Law 1.4.1.1. Anything on land Use at your own risk 2 1.4.2. Contract Law 1.4.2.1. Agreement with others by signature 1.4.3. Labor Law 1.4.3.1. Health and safety in the workplace (treatment) 1.4.4. Tort Law 1.4.4.1. General wrongdoings, everything but the other categories 1.4.5. Family Law 1.4.5.1. In a separate court, handles custody and divorce 1.5. Criminal vs Civil Law 1.5.1. Criminal Law = 99.99%+ of guilt, guilty beyond reasonable doubt 1.5.2. Civil Law = division of responsibility, who’s more responsible? Laws and Rules 1. Patterns/Commonalities in Laws & Rules 1.1. Safety: maturity, brain development, decision making 1.2. Behavioral: how you act, control 1.3. Reasonability 1.4. Ownership: property, behaviors 1.5. Promote Order: safer, efficiency 1.6. Quality of Life 2. Principles of Laws & Rules 2.1. Fairness, harm prevention, procedural, protection, freedom, consequential, self-harm limitations, responsibility, age-related/youth behaviors 2.2. Harm Principle 2.2.1. “... the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” - John Stuart Mill, From ‘On Liberty’ (1859) 2.2.2. Actions of individuals should only be limited to prevent harm 2.2.3. Do anything you wish, as long as the actions do not harm others 3. Laws vs Rules 3.1. Laws 3.1.1. “All encompassing” 3.1.2. Applies to all members of society at all times 3.1.3. Made by different levels of government 3.1.4. Penalties are applied if broken, punishments can be administered if you’re caught Use at your own risk 3 3.1.4.1. i.e. driving laws (speeding → fine, reckless → loss) 3.1.5. Lays down our rights and obligations + enforcement 3.1.5.1. Social consistency and reduction of conflict 3.2. Rules 3.2.1. “Participatory” 3.2.2. Only applies to participants in a given activity 3.3. Three Points of Law 3.3.1. A set of rules established and enforced by the government 3.3.2. Mandatory 3.3.3. Involve a detailed system of consequences 3.4. Systematic Law 3.4.1. Voting laws, legal rights & codification (written law) 3.5. Five Functions of Law 3.5.1. Establish Rules of Conduct 3.5.1.1. Outline guidelines for individuals living with others 3.5.1.2. i.e. tests to obtain a driver’s licence 3.5.2. Provide a System of Enforcement 3.5.2.1. Police and the courts oversee the process of enforcement 3.5.2.2. i.e. breaking a law → getting charged by the police, show up in court, etc 3.5.3. Protect Rights and Freedoms 3.5.3.1. Encourage values of tolerance and respect 3.5.3.2. Rights and Freedoms cannot be limited unless there is a reasonable condition to allow such to happen 3.5.4. Protect Society 3.5.4.1. Laws are designed to protect people from harm 3.5.4.2. Society defines the definition of ‘wrong’ and thus punishments are set 3.5.4.3. Civil law also prevents people from getting taken advantage of 3.5.5. Resolve Disputes 3.5.5.1. Settled through negotiation or through courts 3.5.5.2. Create order and ensure disagreements are settled accordingly 4. Need for Laws 4.1. Laws to limit violence in society 4.1.1. i.e. weapons, assault Use at your own risk 4 4.2. Laws protect property and our safety 4.2.1. i.e. driving, drinking, possession laws 4.3. Laws help maintain peace and order in our society 4.3.1. i.e. noise control, voting laws 4.4. Laws settle differences of opinion that arise in large groups 4.4.1. i.e. negotiations, mediation, the court system 4.5. Laws provide a means for solving social problems 4.5.1. i.e. courts of law and our legal system process 4.6. Laws reflect our values and beliefs 4.6.1. i.e. health and wellness, smoking laws 5. Passing a Bill Through Parliament 5.1. First Reading 5.1.1. No debate/discussion 5.1.2. Reading announces the proposed policy, publicly 5.2. Second Reading 5.2.1. MPs debate strengths and weaknesses 5.2.2. Public debate, examines values and politics of the bill 5.3. Committee 5.3.1. After 2nd reading 5.3.2. Study the bill 5.3.3. Hearings could be open to public 5.3.4. Bill is changed and Improved 5.4. Third Reading 5.4.1. Read in House of Commons 5.4.2. MPs vote 5.5. Senate 5.5.1. If Third Reading passes, bill goes to Senate, if it fails, bill is defeated and does not become law 5.5.2. 3 readings occur here, each time changed or passed 5.5.3. Alternative → hold for approximately 6 months Use at your own risk 5 5.6. Bill is Passed 5.6.1. Queen signs the bill and is now law John Locke and Government 1. Second Treatise of Government 1.1. Written in between the years 1632-1704, John Locke argues that legitimate governments is a limited government based on consent 1.1.1. Majority rules but does not violate people’s fundamental rights 1.1.2. A legitimate government may not violate our natural right to life, liberty, and property 1.1.3. According to Locke, however, government may also legitimately take property through taxation, or sacrifice live through conscription 1.2. State of Nature 1.2.1. Before the institution of government, everyone is free and equal, but bound by the law of nature 1.2.2. Law of nature commands self-preservation and preservation of others’ lives when it does not conflict with self-preservation 1.2.3. Inconvenient as it lacks judgment to settle disputes about law of nature and enforcement of such 1.2.3.1. So people left the state of nature but agreeing to enter civil society, to make their condition better, and in essence, agreeing to a limited government 1.2.4. An absolute monarch would be illegitimate because it gives the monarch more power than the people 2. Natural Law/Rights 2.1. Within natural law and natural rights, we find natural law and positive law 2.2. The Contrast 2.2.1. Some rights and behaviors exist as you get them by being born as a human (human rights) 2.2.2. Some rights and behaviors are given as they are granted and upheld by a government (civil liberties) 2.3. Natural Law (Given) 2.3.1. Human laws are derived from eternal and unchangeable principles that regulate the natural world, usually reasonably deductive 2.3.2. Unalienable rights of the person Use at your own risk 6 2.4. Positive Law (Given) 2.4.1. Law is a body of rules formulated by the state 2.4.2. Citizens oblige to obey the law for the good of the state 2.5. Limitations of Law 2.5.1. Self interest (hedonist view; pleasure) 2.5.2. “Natural law obligations only in those situations where our own preservations is not in conflict” 2.5.3. i.e. harm principle, right to life, liberty/property, rights and laws related to age, citizenship, geographic location of residence, etc 3. Property 3.1. Natural law restricted personal (private property) accumulation 3.2. Spoilage - Use Before It Spoils 3.2.1. Only accumulate what you will use before it’s no longer useful 3.2.2. Critique: ‘Saving’ money could eliminate this issue (store and spend later) 3.3. Sufficiency Restriction 3.3.1. Acquire what you can (capitalist ideology) 3.3.2. Critique: if you cannot acquire property you have more money to spend on other things, instead of property 3.4. Mixing of Labor 3.4.1. You have the right to work for what you accumulate 3.4.2. Critique: it suggest only those that have worked for a property can own a property, ignore other aspects of accumulation 3.5. Examples of Property 3.5.1. Free markets for goods and services, employment laws, property ownership, property linked to being in public service (on a jury, etc), land use and zoning laws 4. Consent 4.1. Stressed “individual consent as the mechanism by which political societies are created and individuals join those societies” 4.2. Consent vs Tacit Consent 4.2.1. Explicitly stated vs implied in different cases 4.2.2. Actions differ from being deliberate vs voluntary Use at your own risk 7 4.2.2.1. Being actively involved in something vs voluntary assumptions including privacy and risk in public spaces 4.3. Examples of Consent 4.3.1. Citizenship and rights/responsibilities, voting rights, access to information, privacy laws (information you give to ISP, to access content, websites, use a bank account, etc) 5. Punishment 5.1. Belief “punishment requires that there be a law, and since the state of nature has the law of nature to govern it, it is permissible to describe one individual as ‘punishing’ another in that state” 5.1.1. Like crimes = like punishments (eye for an eye, tooth for a tooth, etc) 5.1.2. Power to seek preservation is limited in civil societies by law and the power to punish has been transferred to the government 5.2. Forward Looking vs Backward Looking Justice 5.2.1. Some behaviors and laws are proactive for public safety/efficiency and some are reactive and made in response to the need to increase public safety/efficiency 5.2.2. The ‘proper punishment’ will provide restitution, protect the public, and deter future crime 5.3. Examples of Punishment 5.3.1. Retribution vs rehabilitation, Youth Criminal Justice Act, alternatives to custodial sentences (probation, community service, diversion programs, etc) 6. Educations and Politics 6.1. Social norms will reinforce natural law and stabilize political society 6.2. Education & Learning 6.2.1. Hold behaviors in check until at least learning to reflect on them 6.3. Examples 6.3.1. Nature vs nurture, are criminals born or made? Links to intellect, socio economic background, access to services like education, needs based care from governments, etc. Morals and Ethics Use at your own risk 8 1. Morals vs Ethics 1.1. Morals 1.1.1. What you believe is wrong or right in terms of the way society should function & how you/others should act 1.2. Ethics 1.2.1. The moral principles governing our behaviors 1.3. Moral and Ethical Behavior 1.3.1. Statement(s): very broad, similar to our laws in that sense 1.3.2. Your reaction to the statement: does your initial reaction change after more deliberate contemplation? 1.3.3. Your ethical reasoning: your experiences, family structure, influence of friends, societal view, role of economics, influence of media, hobbies and interests 2. MAID Laws 2.1. Arguments against MAID 2.1.1. Devaluation of Life: assisted suicide becomes a dignified choice, a plausible solution to their problems 2.1.2. Healthcare Professionals: altercation of their role, ethical concerns 2.1.3. Irreversibility: potential misdiagnosis and the resulting consequences 2.1.4. Historical Context: previous condemnation of suicide raises questions 2.1.5. Impedement of Medical Development: focus of healthcare shifts to assisted suicide 2.1.6. Consent: the mentally ill, or those unable to speak cannot validly consent 2.1.7. Vague Definitions: eligibility is very broadly defined and could lead to application inconsistencies 2.1.8. Increment Acceptance: allowing legislation of MAID to go further than intended 2.1.9. Cost Pressures: financial implications could lead to favoritism of MAID 2.2. Overview of Bill C-14 2.2.1. Direction administration or self administration 2.2.2. Must be 18 years or older, serious and incurable illness, in a state of irreversible decline, reasonably foreseeable death 2.2.3. Reflection period of 10 days Early History of Law Use at your own risk 9 1. Magna Carta “The Great Charter” 1.1. King John (1100-1200s) 1.1.1. Forced into signing the Magna Carta to appease and gain support of the Barons, for which the King’s taxes were collected by 1.2. Flow of King John’s System 1.2.1. King owned land, demanded “rent” (taxation), send land barons to collect from “serfs” (peasants) 1.2.2. Arbitrary nature of increases led to displeasure and eventually a threat of revolt 1.2.3. Development of rule of law 2. Code of Hammurabi 2.1. Hammurabi: famous Babylonian ruler ~3800 years ago 2.1.1. Took ~280+ laws and recorded them (process of codification) in a way his citizens can understand 2.2. Code of Hammurabi 2.2.1. Earliest record of written law carved in columns of stone 2.2.2. Codification: formalizing laws of a jurisdiction in a book of laws, broken down in sections 2.2.3. Retribution: a deserved penalty of punishment for a wrong crime 3. Moses/Mosaic Law 3.1. Mosaic: five books of Old Testament 3.1.1. 10 commandments still used in religion today 3.1.2. Severe punishments, said that laws were given by God 3.1.3. Restitution: offender required to repay victim for stolen goods rather than pay fine/get jail 4. Roman Law 4.1. Basis of law in Western Europe, Romans created ‘lawyers’ to study and record law 4.1.1. Laws were to be fair and just 4.1.2. Reign over a widespread area, everyone is equal under the law 5. French Civil Code 5.1. Napoleon Bonaparte revised French Law, using Roman Law and the Justinian Code 5.1.1. Quebec Civil Law is based on the Napoleonic Code Rule of Law Use at your own risk 10 1. Definition 1.1. Everyone is equal before and under the law 1.1.1. Before = rule of law, treatment of all citizens, access to private property no longer decided by birth 1.1.2. Under = ‘habeas corpus’ 1.1.2.1. Right to be told why you’re detained (reasonable time), right to your day in court 2. Feudal System 2.1. Land owned in a hierarchical format 2.1.1. Each person leased land, and pays a tax, to the individual in front of them in the hierarchy 3. Divine Rights 3.1. Separation of the actions of leaders from judgment by parliament, 3.1.1. Their powers were ‘inherited or bestowed by God’ 3.1.2. Problematic because it was difficult to hold the actions of leaders accountable 4. Common, Civil, Statute Law 4.1. Common Law 4.1.1. Based on precedent (body of unwritten laws, developed over time) 4.1.2. Developed out of custom, one judge rules a decision on a case, and later another judge uses the ruling as an example to deal with similar cases 4.2. Civil Law 4.2.1. Focuses on the relationships between people 4.2.2. i.e. marriages, divorces, contracts 4.3. Statute Law 4.3.1. Laws made my law making bodies, intended to take the place of common law 4.3.2. Judges can make decisions beyond Statute law, fills interpretive gaps in wording of written law 4.3.2.1. Regardless, judges still have the duty to apply the facts in the case to the appropriate laws Use at your own risk 11 5. Judicial Mechanisms 5.1. Judicial Independence 5.1.1. Separates the court from political influence and interference → called ‘judicial supremacy’ = ‘courts rule’ 5.2. Judicial Impartiality 5.2.1. Fair dealings based on evidence and fact 5.3. Judicial Accountability 5.3.1. Appeals, role of the Supreme Court of Canada 5.4. Lawyer Independence 5.4.1. Operation free of bias, held to standards of rule of law 6. Law Enforcement Mechanisms 6.1. Legal Independence 6.1.1. Judges and lawmakers are separate, lawyers are to represent the clients without interference or bias 6.2. Police 6.2.1. Enforces the Criminal Code of Canada, investigate crime and charge those who break the law 6.3. Courts 6.3.1. Hold people accountable for their actions, hear out cases, and interpret the law 6.4. Sanction 6.4.1. Penalties as a result of breaking the law, helps to ensure people comply with law, can range in severity 6.4.2. Types of Sanctions 6.4.2.1. Retribution: taking revenge for the wrongdoer for breaking the law and causing suffering; 6.4.2.2. Removal: separating potentially harmful people from the rest of society; 6.4.2.3. Restitution: returning things, especially finances, to the way they were before the offence; 6.4.2.4. Restoration: making the victim emotionally whole and reintegrating the offender into society; Use at your own risk 12 6.4.2.5. Rehabilitation: teaching offenders new skills and attitudes and strategies to help them avoid negative behavior in the future; and 6.4.2.6. Reinforcement: setting an example so that the public knows that harmful actions will be met with just consequences Court Structure 1. Ontario Court of Justice 1.1. One of two trial courts in Ontario 1.1.1. The other is the Superior Court of Justice 1.2. Responsibilities 1.2.1. Bail hearings, provincial offence matters, criminal case-management courts, hearing applications, youth/adult preliminary court hearings, family law and child protection 1.2.2. Often appeals of Justices of Peace are not required to progress to a higher court 2. Precedence 2.1. Definition 2.1.1. “... is something that has been done that can later serve as an example or rule for how other things should be done” 2.2. Certainty 2.2.1. Case Decisions become common knowledge 2.2.2. Certainty and expectation used interchangeably 2.3. Benefits of Judicial Precedent 2.3.1. Uniformity 2.3.1.1. “Like crimes” = “Like Decisions” 2.3.1.2. Someone who commits a first degree murder should get the same jail time as another person who has committed a similar crime 2.3.1.3. Different courts should give the same punishment for similar crimes 2.3.2. Predictability 2.3.2.1. Probably outcome of a case based on prior cases 2.3.2.2. Cash payouts in civil cases 2.3.2.3. Admitting guilt for a lesser sentence in criminal cases 2.3.3. Impartiality 2.3.3.1. Cannot show favoritism in courts 2.3.3.2. No racial biases 2.3.3.3. Only consider the provided facts Use at your own risk 13 UNIT 2: RIGHTS AND FREEDOMS Human Rights and Freedoms 1. Steps to Human Rights Legislation 1.1. Geneva Conventions (1899, 1907, 1949, 1977, 2005) 1.1.1. The Geneva Conventions and their Additional Protocols are international treaties that outline rules preventing barbarity in war 1.1.2. The aim is to protect those unable to protect themselves, and civilians/those not fighting in wars 1.1.3. The most important convention took place in 1949, putting an end to breaches of war law 1.1.4. It helped promote peace and stability, and created legal accountability for those violating the treaty 1.1.4.1. i.e. Yugoslav Wars, 1990s 1.2. Nuremberg Trials 1.2.1. A series of trials held after WWII in order to adequately punish German war crimes 1.2.2. Provided a legal framework to clearly state the consequences of war crimes 1.2.2.1. i.e. following orders was not a valid defense for committing these types of crimes 1.2.3. They took place from 1945 - 1946, held Nazi leaders accountable for WWII actions 1.2.4. It helped establish accountability, further develop international law regarding war crimes, developed human rights protection, and established precedence 2. Human Rights Documents 2.1. UN Declaration of Human Rights 2.1.1. Signed document by the UN General assembly 2.1.2. Aims to ensure violation of human rights does not happen again 2.1.3. Signed on December 10, 1948, and emphasizes the importance of dignity and rights, advocating for freedom, justice and peace 2.1.4. Serves as a foundation for all human rights law, universal recognition of rights, and promotes accountability for violations 2.2. UN Rights of the Child 2.2.1. International treaty signed by the UN General Assembly to protect the rights of children and promote their well-being Use at your own risk 14 2.2.2. Signed on November 20, 1989, aims to protect any person under the age of 18, due to their need of special care and vulnerability 2.2.3. Sets legal framework for the treatment of children, ensures that the laws are being followed, and promotes child welfare while holding countries responsible 2.3. UN Rights of Indigenous People 2.3.1. International treaty created to protect the cultural, social, and economic rights of indigenous people globally 2.3.2. Ensures that Indigenous peoples are able to maintain their own views and institutions 2.3.3. Signed on September 13, 2007, recognized the rights of Indigenous peoples around the world to protect them from discrimination 2.3.4. Ensures the preservation of Indigenous and diverse cultures, protection of their land and resources, and empower Indigenous communities 2.4. Charter of Rights and Freedoms 2.4.1. Huge part of the Constitution Act of 1982, protects the rights and freedoms of Canadian citizens 2.4.2. Outlines the legal rights of any Canadian citizen, obtained through birth or other forms of acquisition 2.4.3. Signed on April 17, 1982, ensures the rights and freedoms of Canadians were honored and granted by the Canadian government and legal system 2.4.4. Promotes equality before and under the law, raises awareness of individual rights and freedoms, provides a framework for advocacy of injustices 3. Rights vs Freedoms 3.1. Rights 3.1.1. A right is a claim of an interest possessed by a person that is conferred upon that person and protect by law 3.1.2. Moral Rights: based on principle sand involve entitlements that people are morally bound to respect 3.1.3. Natural/Human Rights: entitlements that people have because they are human beings 3.1.3.1. Natural: rights by being born; common sense, unalienable 3.1.3.2. Human: rights governed by policy or officials 3.1.4. Legal Rights: rights based on legal principle and involve entitlements 3.1.4.1. Instituted and governed 3.1.5. With rights/privileges come responsibilities Use at your own risk 15 3.1.5.1. Faithfully observe the laws of Canada, vote in elections (active citizenship), serve on a jury, work towards the common good of the country 3.2. Freedoms 3.2.1. What a person may do without being prevented from doing so by law (i.e. a liberty) 3.2.1.1. Grey areas: reasonable limits clause, freedoms can be taken away if it interferes with the government’s ability to uphold democracy 3.2.2. Examples 3.2.2.1. The ability to seek employment in any part of Canada 3.2.2.2. Freedom of conscience and religion 3.2.2.3. Provincial government can ignore federal legislation and vice versa for 5 years, per section 33 of the Charter Constitution/Charter 1982 1. Constitution Act of 1982 1.1. Civil rights originated in statute form with the Bill of Rights, 1960, and couldn’t be amended or changed 1.2. April 17th, 1982 1.2.1. Constitution Act came to force 1.2.2. Property was included in the Charter but not Bill of Rights 1.2.3. Can be changed through courts by average citizens 1.3. 1987 Supreme Court of Canada Decision 1.3.1. Charter applies to Common Law, but not Civil Law 2. Advantages of the Constitution 2.1. Certainty 2.1.1. Rights and freedoms are listed in a constitutional document 2.2. Permanency 2.2.1. Not subject to simple amendments or repeal as are ordinary statutes 2.3. Entrenching 2.3.1. Underscore their fundamental importance in society Use at your own risk 16 3. Disadvantages of the Constitution 3.1. Transfer of Sovereignty 3.1.1. Ultimate authority is transferred from legislatures to judiciary 3.2. Individuality 3.2.1. Judges determine the nature of the Rights and Freedoms and are not answerable to the people for their decisions, like legislatures 4. Evolution of Canadian Constitutional Law 4.1. WWI 4.1.1. PM Borden demanded a more active role in post war peace 4.1.2. Treaty of Versailles signed independently in 1919 4.1.3. Increased visibility for Canada 4.2. Statute of Westminster, 1931 4.2.1. Canada no longer being subject to British approval 4.2.2. Independent of British laws 4.3. 1971 Victoria Charter 4.3.1. Written guarantee of rights, accepted by provinces and federal governments 4.3.2. Political languages rights 4.4. 1980 Quebec Referendum 4.4.1. Re-negotiation of constitutional agreement with other Canadian provinces 4.5. 1982 Constitution Act 4.5.1. Canadian Charter of Rights/Freedoms 4.5.2. Protection of Canadian citizens without infringing other rights 4.6. 1987 Meech Lake Accord 4.6.1. Failure of persuading Quebec to sign the constitution led to recognition of Quebec as a ‘distinct society’ 4.7. 1992 Charlottetown Accord 4.7.1. Failure of Meech Lake led to new proposals 4.7.2. Increased provincial powers 4.7.3. Changes to the Supreme Court proposed 4.7.4. Defeated in 6 provinces and 1 territory Use at your own risk 17 4.8. 1995 Quebec Referendum 4.8.1. Immediate sovereignty if ‘yes’ side wins 4.8.2. Barely a win on the ‘no’ side 4.8.3. Canada remains intact and Quebec still has not signed the Constitution 5. 1982 Constitution Act 5.1. Constitution Definition 5.1.1. Collection of responsibilities in Canada 5.1.2. Split into powers for the Federal and Provincial governments 5.1.3. Includes the Canadian Charter of Rights and Freedoms 5.1.4. Signed by Queen and Rt. Hon. Pierre Trudeau, PM, includes the BNA Act as well 5.2. Amending Formula 5.2.1. Constitution Act is difficult to change, for some parts, the Senate, House of Commons, and all provinces must agree to change 5.2.2. Other parts: Senate, House of Commons, >= 7 provinces with a 50% yes 5.3. 1867 vs 1982 Constitution 5.3.1. 1867: required British consent to change, no amending formula, no guarantee of rights 5.3.2. 1982: changes made by Canadian parliament, contains amending formula, contains Charter of Rights and Freedoms 6. Responsibilities by Area 6.1. Federal Powers 6.1.1. Immigration, citizenship/passports, currency, postal service, foreign affairs, international trade, employment insurance 6.2. Provincial Powers 6.2.1. Education, hospitals, property/civil rights, provincial/territorial law and courts, marriage/divorce laws, highways, prisons 6.3. Municipal Powers 6.3.1. Not in the constitution 6.3.2. Trash disposal, community centers, fire protection, municipal/local police, public transit, water supply/treatment, animal control Use at your own risk 18 7. Responsibilities by Power 7.1. Legislative 7.1.1. Canadian Parliament, Members of Parliament (MP) 7.1.2. Makes the law, create bills, debate bills, vote on bills, and turn bills into statutes (law) 7.2. Executive 7.2.1. Prime Minister and Cabinet Members 7.2.2. Initiates the law, decide on the policies/draft bills 7.3. Judicial 7.3.1. Supreme Court of Canada, Provincial Courts, Appeal Courts, and Judges 7.3.2. Applies the law, hears cases, and makes decisions 8. Court Assessment in Federal vs Provincial Powers 8.1. Pith & Substance 8.1.1. Main purpose, substance/objective of having the law 8.2. Intra Vires 8.2.1. The presiding court acting within their power 8.3. Ultra Vires 8.3.1. The presiding court acting outside their power 9. Legal Remedies to Denied Charter Rights 9.1. A person can ask a court for a remedy that is appropriate and just in the circumstances 9.2. Government investigations led to violations, ask court to order evidence to not be used in trial 9.3. Courts can rule that the law has no force Oakes 1. R v Oakes 1986 Case 1.1. Oakes believed his Charter right s.11d was violated 1.1.1. Oakes was charged with intent to traffic by the police because he possessed drugs and narcotics 1.1.2. He believed his right to ‘innocent until proven guilty’ was infringed upon 1.1.3. The Supreme Court of Canada ruled a violation of the Charter as the government could not justify the Charter breach Use at your own risk 19 1.2. This led to the famous Oakes test 2. Oakes Test 2.1. Is the limitation prescribed by law? 2.2. Is the issue pressing and substantial? 2.3. Proportionality 2.3.1. Is the law rationally connected to its purpose? 2.3.2. Does the law minimal impair upon the infringed right? 2.3.3. Do the pros of the law outweigh the cons? 3. Remedies for Charter Infringement 3.1. Striking Down 3.1.1. A court may declare a law infringes the Charter is nullified and is of no force or effect 3.2. Partial Invalidity 3.2.1. Alternative to striking down 3.2.2. Declare unconstitutional portions of a law invalid 3.3. Reading Down 3.3.1. Courts interpret legislation narrowly to line it up with the Charter 3.4. Reading In 3.4.1. ‘Read in’ categories of individuals rather than striking down 3.5. Constitutional Exemption 3.5.1. Law is considered valid 3.5.2. Person or persons are exempt from the law 3.5.3. Very rare 3.6. Temporary Suspension of Invalidity 3.6.1. A statute or provision is considered to be invalid 3.6.2. Still in force for Parliament/legislature to change the law Charter Sections 1. Section 1 1.1. Charter rights can be limited by other laws so long as those limits can be shown to be reasonable in a free & democratic society Use at your own risk 20 1.2. Supreme Court of Canada’s ruling 1.2.1. Limit deals with a pressing/substantial social problem 1.2.2. Government’s response to the problem is reasonable and demonstrably justified (Oakes Test) 2. Section 2 2.1. Four Categories of “Fundamental Rights” 2.1.1. Freedom of conscience and religion 2.1.1.1. People are free to practice or not practice religion in Canada, without fear of reprisal or attack 2.1.2. Freedom of thought, belief, opinion and expression 2.1.2.1. All forms of communication and expression, including mass media 2.1.2.2. Criminal Code outlaws certain acts of ‘expression’ 2.1.3. Freedom of peaceful assembly 2.1.3.1. Associated with the right to hold or attend a public demonstration 2.1.3.2. Right of striking workers to picket outside their place of work 2.1.4. Freedom of association 3. Other Sections 3.1. Sections 3-5 3.1.1. Democratic rights, including the right to vote in municipal, provincial, or federal elections 3.2. Sections 7-8 3.2.1. Legal rights, life liberty security; search laws 3.3. Sections 9-14 3.3.1. Legal rights continued, expectations for ‘treatment’ by law enforcement 3.4. Sections 15+ 3.4.1. Equality rights, introduced 3 years after the Charter Barriers to Achieving Equality 1. Women 1.1. Issues Faced in History 1.1.1. Legal status, property rights, voting rights, education/employment rights, lack of reproductive rights, social norms Use at your own risk 21 1.2. Important Legislation Changes 1.2.1. Right to vote (1916-1918), Persons Case (1929), Commission on the Status of Women (1970), Abortion Law Reform (1969-1988), Charter (1982), Pay Equity Legislation (1977-Present) 1.3. Issues Faced Today 1.3.1. Gender based violence, pay gap, lack of reproductive rights, healthcare, underrepresentation and misrepresentation in the media 2. Indigenous Peoples 2.1. Issues Faced in History 2.1.1. Land theft/displacement, treaties and treaty rights, residential schools, assimilation 2.2. Important Legislation Changes 2.2.1. Indian Act (1876), Proclamation of 1763, Calder Case (1973), Constitution Act (1982), TRC Call to Action (2008-2015), National Inquiry into MMIWG (2019) 2.3. Issues Faced Today 2.3.1. Socio-economic disparities, land and resource rights, systemic racism and discrimination, health and education gaps, MMIWG, lack of implementation of legal rights, environmental injustice 3. Immigrants 3.1. Issues Faced in History 3.1.1. Immigration policies and exclusion, nationality and racial preferences in employment & education, post war immigration acts 3.2. Important Legislation Changes 3.2.1. Chinese Immigration Act (1885), Komagata Maru incident (1914), Immigration Act of 1967, Multiculturalism Act (1971), Immigration and Refugee Protection Act (2002), Syrian Refugee Resettlement (2015-2016) 3.3. Issues Faced Today 3.3.1. Racial discrimination/prejudice, economic inequality and poverty, lack of social mobility and access to services, anti-immigrant sentiment, political backlash, refugee challenges Use at your own risk 22 4. Gay and Lesbian (+ LGBTQ+) 4.1. Issues Faced in History 4.1.1. Criminalization of homosexuality, pathologization and medical discrimination, employment, housing, and social service barriers 4.2. Important Legislation Changes 4.2.1. Decriminalization of homosexuality (1969), legalization of same sex marriage (2005), Charter (1982), Human Rights Code (1977), Public Apology (2017) 4.3. Issues Faced Today 4.3.1. Discrimination, hate crimes, healthcare, mental health, lack of transgender rights 5. People with Disability 5.1. Issues Faced in History 5.1.1. Industrialization and segregation, “medical model” of disability 5.2. Important Legislation Changes 5.2.1. Charter (1982), Employment Equity Act (1986), Canadian Disabilities Act (1992), AODA (2005), Accessible Canada Act (2019), HRT Rights to Employment (2017) 5.3. Issues Faced Today 5.3.1. Accessibility and built environment, employment discrimination, economic inequality, social isolation, stigma, healthcare, mental health Ontario Human Rights Code 1. Establishment of Human Rights Legislation 1.1. Majority vs Minority 1.1.1. “Tyranny of the Majority” 1.1.1.1. Democracies work by majority decisions 1.1.1.2. Those who do not belong to the majority become powerless, thus the democracy becomes tyrannical 1.2. Discrimination 1.2.1. Occurs when groups or individuals are treated differently, negatively, or adversely 1.2.2. Groups/individuals fall outside the ‘norm’ of the traditionally perceived as the ‘majority’ Use at your own risk 23 1.2.3. i.e. Japanese internment, indigenous, women, etc… 1.3. The Living Tree of Legislation 1.3.1. 1960 Bill of Rights, Canadian Charter of Rights and Freedoms, Employment Equity Act, Human Rights Act, Ontario Human Rights Code, Human Rights Commissions, Hate Laws, Affirmative Action 2. Protected Grounds & Areas 2.1. Protected Grounds 2.1.1. “Outset” or “as you live” 2.1.2. Examples: age, ancestry, color, race, citizenship, ethnic origin, place of origin, creed, disability, etc… 2.2. Protected Areas 2.2.1. “Practice” or “inservice” 2.2.2. Examples: accommodation, contracts, employment, services, vocational associations, etc… 3. Human Rights Legislation 3.1. Canadian Human Rights Act 3.1.1. 1977, Act that applies to all Federal employers, services (i.e. CBC, Crown Corporations, Armed Forces, etc…) 3.1.2. Individuals have equal opportunity in Canada and freedom from discrimination based on race, ethnicity, color, religion, age, sexual orientation, marital status, disability or pardoned offence convictions 3.2. Ontario Humans Rights Code 3.2.1. Provincial Code, provides equal rights and opportunities for all individuals 3.2.2. Freedom from discrimination (services, facilities, housing, employment, schooling, etc…) 3.2.3. Human Rights Commission: provincial body that oversees discrimination complaints, complete investigations, and in tribunals, enact judgment 4. Comparison of Legislation 4.1. Charter of Rights and Freedoms 4.1.1. List of rights and freedoms for all Canadians 4.1.2. Outlines government's role 4.1.3. Public Law (federal and provincial duties to protect) Use at your own risk 24 4.2. Ontario Human Rights Code 4.2.1. Provincial act 4.2.2. Protects rights of people in Ontario 4.2.3. No criminal penalties, civil penalties like compensation 4.3. Canadian Human Rights Act 4.3.1. Federal act 4.3.2. People receiving goods and services or employed by federal jurisdiction 5. Comparison of Fields of Law 5.1. Criminal Law 5.1.1. Burden of proof is beyond a reasonable doubt 5.2. Civil Law 5.2.1. Balance of probabilities (for responsibility) 5.3. Human Rights Law 5.3.1. Balance of probabilities 5.3.2. Who is more believable? Was it more likely than not that discrimination occurred? Was there a bona fide (legitimate) reason for discrimination (i.e. undue hardship) UNIT 3: CRIMINAL LAW Intro to Criminal Justice System 1. Aspects of Criminal Law 1.1. Criminal vs Civil Law 1.1.1. Criminal law definition: wrongs against society; government prosecutes a defendant for theft on behalf of society 1.1.2. Civil law definition: plaintiff sues a defendant for theft and recover losses 1.2. Four Conditions of a Crime 1.2.1. Behavior is considered wrong or immoral by majority of Canadians 1.2.2. Behavior causes harm to society or an individual victim 1.2.3. Harm must be serious 1.2.4. Behavior must be punished by the criminal justice system, no other system of punishment would be appropriate Use at your own risk 25 1.3. Criminal Code 1.3.1. A crime is a wrong against society, any wrong committed against an individual is considered a wrong against everyone 1.3.2. These wrongs could be an action, omission, or state of being 1.3.3. Criminal Code: a document describing what behaviors are criminal, the elements required for each crime, and the punishments 1.4. Quasi-Criminal Law 1.4.1. Provincial right to pass some laws 1.4.2. Not actually a part of the Criminal Code 1.4.3. Resembles criminal laws 1.4.4. i.e. Highway Traffic Act, fines 1.5. Criminal Conduct 1.5.1. Conducted outside some accepted norm, identified by society, through Parliament Changes in Legislation and Types of Offences 1. Criminalize vs Decriminalize vs Legalize 1.1. Criminalize 1.1.1. Definition: make a behavior a criminal offence under the Criminal Code or federal statute 1.1.2. i.e. identity theft, criminal harassment, street racing 1.2. Decriminalize 1.2.1. Definition: make a behavior that was criminal now only punishable by fines (illegal but not criminal) 1.2.2. i.e. abortion, speeding, texting and driving 1.3. Legalize 1.3.1. Definition: make an act completely legal by removing it from the Criminal Code or other statutes 1.3.2. i.e. assisted suicide, sexuality, same-sex marriage, cannabis use 2. Summary vs Indictable Offence 2.1. Summary Conviction Offences (Misdemeanors in the US) 2.1.1. Minor Offences 2.1.2. Usually (not always) has a fine of a few thousand, and jail up to 6 months Use at your own risk 26 2.2. Indictable Offences (Felonies in the US) 2.2.1. Serious crimes with severe penalties 2.2.2. Maximum punishments are listed in the Criminal Code, some penalties are not up for interpretation (forced) 2.3. Hybrid Offences 2.3.1. Crown makes decision on how to proceed 2.3.2. Immediate and less severe or without indictment 2.3.3. i.e. Theft (police assumes indictment in this case) Elements of Crime 1. Actus Reus / Mens Rea 1.1. Actus Reus 1.1.1. Act = Action 1.1.2. A crime includes a criminal act or ‘some form’ of criminal action 1.1.3. Physical acts must be voluntary 1.2. Mens Rea 1.2.1. Men = Mental, the Mind 1.2.2. Evidence of a guilty mind, capable of committing a crime 1.2.3. Intentional act with knowledge of all the wrong circumstances prohibited by statute 1.3. Guilty Mind 1.3.1. Actus reus and mens rea must be present at or around the same time for a crime to be committed 1.4. Automatism 1.4.1. State of involuntariness 1.4.2. i.e. loss of consciousness, sleepwalking, blow to the head 1.5. Quasi-Criminal Code 1.5.1. Provincial right to pass some laws 1.5.2. Not actually part of the Criminal Code 1.5.3. Resembles Criminal Law in some form 1.5.4. i.e. Highway Traffic Act, fines Use at your own risk 27 2. Aspects of Actus Reus / Mens Rea 2.1. Motive 2.1.1. Reasoning behind an act, not actus reus or mens rea, does not assume guilty 2.1.2. i.e. saying “I want to kill xyz, and the next day, xyz is dead”, you may be suspected for having a motive to commit such an act 2.2. Intent 2.2.1. Actual meaning behind an act, general or specific 2.2.2. General: limited to a single act (theft) 2.2.3. Specific: an act committed for further criminal purposes (assault for theft) 2.3. Willful Blindness 2.3.1. A reasonable person knows of the possibility of illegality but chooses not to ask questions or investigate the situation further and acts 2.3.2. i.e. buying an iPhone for $50, knowing it is probably a scam and illegally obtained, but choosing not to question it and proceed 2.4. Negligence 2.4.1. Person did realize the consequences of her or his actions, while a reasonable person should have 2.4.2. i.e. driving while texting at high speeds 2.5. Recklessness 2.5.1. Ability to know the meaning behind an act or possible outcomes, but failing to stop engaging in such behaviors 2.5.2. i.e. drunk driving as one is aware of being intoxicated Theory of Criminal Law 1. Cause of Crimes and Obedience of Law 1.1. Possible Causes of Crime 1.1.1. Heredity (psychological traits) 1.1.2. Physical defects and/or mental imbalance, emotional insecurity 1.1.3. Poverty, lack of education 1.1.4. Association with other criminals 1.2. Why People Obey the Law 1.2.1. Social Utility 1.2.2. Identify as part of a group sharing the same values 1.2.3. Act out of force of habit Use at your own risk 28 1.2.4. Act out of indoctrination or socialized growing up 1.3. Purpose of Criminal Law 1.3.1. Label (law) → identify (arrest) → sanction (court, guilt) 1.3.2. Retribution 1.3.2.1. Public denouncement and punishment of wrongful behavior, reaffirm social values and deliver ‘justice’ 1.3.3. Protection 1.3.3.1. Make society safer by deterring future wrongdoing and by rehabilitating wrongdoers, focuses on public security and prevention of crime 1.4. Types of Crimes 1.4.1. Guilty Acts 1.4.1.1. Actions resulting in a crime 1.4.1.2. i.e. theft, assault, fraud 1.4.2. Omissions 1.4.2.1. Failure to do or comply, results in a crime 1.4.2.2. i.e. failure to provide necessities of life, failure to remain at the scene of an accident, failure to assist a police officer 1.4.3. State of Being 1.4.3.1. Possession of prohibited weapons, possession of stolen property, possession of illegal drugs 1.5. Liability 1.5.1. Absolute Liability 1.5.1.1. Prosecution does not need to prove any ‘mens rea’ required for the act to be considered a crime 1.5.2. Strict Liability 1.5.2.1. Raise a defence of due diligence to avoid offence, even if they did not have the required ‘mens rea’ to commit a crime 1.5.3. Motive is an example of circumstantial evidence, which shows guilty without physical evidence, but rarely wins a case 1.5.3.1. Motive, however, can be used at sentencing 1.6. Attempt 1.6.1. Showing that there was intent to commit the offence, actus reus for an attempt begins when the person takes the first step toward committing the crime, courts decide when preparation ends and the act begins Use at your own risk 29 1.7. Conspiracy 1.7.1. When someone agrees to commit a crime, whether or not the crime is actually carried out 1.7.2. i.e. conspiracy to murder someone, commit fraud, kidnapping, treason, etc… 1.7.3. Jokes or threats are not considered conspiracy 1.8. Classical Criminology (up to 1920s) 1.8.1. Created by Cesare Beccaria and Jeremy Bentham 1.8.2. Criminal behavior was understood and controlled as an outcome of ‘human nature’ shared by everyone 1.8.3. Human beings were hedonistic, acting in terms of their own self-interest 1.8.4. The purpose of punishment was to deter people from committing future crimes 1.9. Positivist Criminology (1950s) 1.9.1. Rejected classical criminology that said all crime comes from human nature 1.9.2. Rejects free will, most serious crimes were committed by individuals who were ‘primitive’ or ‘atavistic’ (failed to evolve to a fully human and civilized state) 1.9.3. Crime results from a criminal’s distinctive physical or mental defects 1.9.4. Positivists were concerned with scientifically isolating and identifying the determining causes of criminal behavior in individual offenders 1.9.5. Cesare Lombroso: founder of ‘born criminal’ 1.10. Contemporary Perspectives 1.10.1. Social Structure Theories 1.10.1.1. Disorganization, Strain, Conflict 1.10.2. Individual Theories 1.10.2.1. Trait, Control, Rational Choice Evidence 1. Types of Evidence 1.1. Privileged Communications 1.1.1. Circumstantial or inadmissible 1.1.2. Communications that cannot be presented in court as evidence 1.1.3. i.e. communications between clients and lawyers, married couples cannot incriminate each other Use at your own risk 30 1.2. Polygraph Evidence 1.2.1. Circumstantial or inadmissible 1.2.2. “Lie detectors” 1.2.3. Can be used as hearsay evidence, only about the questions asked for cross-examination, not the responses 1.2.4. Inaccurate as people could lie and not show any signs of doing so 1.3. Photographs 1.3.1. Physical 1.3.2. Pictures of the crime scene, moments after, and during the collection of any evidence 1.4. Opinion Evidence 1.4.1. Circumstantial with some Physical 1.4.2. Evidence or opinions presented to the court by experts in a given field 1.4.3. i.e. forensics specialist on blood splattering from murder 1.5. Hearsay Evidence 1.5.1. Circumstantial 1.5.2. Something someone else has said or written, presented in court by someone who heard or saw it 1.5.3. i.e. statement by victim while they were dying 1.6. Character Evidence 1.6.1. Circumstantial 1.6.2. Evidence used to support the accused’s credibility (some restrictions apply) 1.6.3. i.e. presenting evidence that the accused has been a productive member of society with no previous criminal record 1.7. Illegally Obtained Evidence 1.7.1. Inadmissible 1.7.2. Evidence which was collected outside the limitations of the Charter to examine 1.7.3. Sometimes, in court, illegally obtained evidence can be used in court if it benefits the judicial process (i.e. R.v. Singh, R. v. Stillman) 1.7.4. i.e. statement from someone under 16 without legal counsel, violation of Charter Rights in obtaining of evidence Use at your own risk 31 1.8. Similar Fact Evidence 1.8.1. Circumstantial or inadmissible 1.8.2. Evidence of the same offences being committed previously 1.8.3. I.e. accusations of prior stealing, theft, or abuse 1.9. Confessions 1.9.1. Grey area, depends on how it was obtained, inculpatory vs exculpatory confessions 1.9.2. Spoken or recorded acknowledgement that the accused is responsible in some way, shape or form, for the crime (time in relation is considered) 1.9.3. Inculpatory confession: accused admits guilt 1.9.4. Exculpatory: absolves liability 1.9.5. i.e. accused admits to assaulting or killing the victim 1.10. Electronic Devices 1.10.1. Physical 1.10.2. Evidence obtained through closed circuit electronic surveillance 1.10.3. i.e. CCTV of day to day interactions Crimes Presented by the Criminal Code 1. Violence and Culpability 1.1. Violent Crime 1.1.1. An offence that harms the human body 1.1.2. i.e. robbery, abduction, murder (homicide), assault, sexual offences 1.2. Culpability 1.2.1. Crimes where blame can be attributed to someone 1.2.2. i.e. first or second-degree murder 1.3. Non-culpable 1.3.1. Blame cannot be attributed to someone 1.3.2. i.e. self-defence or an accidental crime 2. Types of Murder 2.1. First Degree Murder 2.1.1. Planned and Deliberate, or 2.1.2. Against a law enforcement official, or 2.1.3. Caused while committing another crime, or 2.1.4. Committed using explosives to commit another offence, or Use at your own risk 32 2.1.5. Committed while committing or attempting to commit an event that could also be considered a terrorist activity 2.2. Second Degree Murder 2.2.1. The rest; all other murder, including manslaughter 2.2.2. Minimum penalty is life in prison 2.2.2.1. Life = 25 years up to life, minimum serve of ~10 years 2.2.2.2. Manslaughter: no minimum 2.3. Homicide 2.3.1. Actus Reus: act resulting in death, causation (but/for) 2.3.2. Mens Rea: recognition that such unlawful act could hurt or kill the victim 2.3.2.1. Level of intent to kill? Intentional and planned? 2.4. Reduction of Charges 2.4.1. First-degree to manslaughter 2.4.1.1. Provocation: “heat of a moment crime” or loss of self-control 2.4.1.2. Intoxication: drunk or under the influence to the point where mental state is altered and cannot be proven 2.5. Assisted Suicide vs Euthanasia 2.5.1. Assisted Suicide: assistance in end of life of behavior (i.e. MAID) 2.5.2. Euthanasia: intentionally seeking out assistance and/or counselling someone to end their life 3. Assault and Sexual Assault 3.1. Assault 3.1.1. Level 1: force or restriction (maximum of 5 years) 3.1.2. Level 2: bodily harm (up to 10 years) 3.1.3. Level 3: harm to a point life is threatened (up to 14 years) 3.1.3.1. i.e. maiming, disfiguring 3.2. Sexual Assault 3.2.1. Level 1: hybrid offence (maximum of 5 years) 3.2.1.1. i.e. touching without consent, threaten with violence 3.2.2. Level 2: assault with weapon causing bodily harm, consequences for health/comfort (up to 10 years) 3.2.3. Level 3: aggravated assault, wounding, maiming, endangering of life (up to 14 years) Use at your own risk 33 4. Consent 4.1. Not a defense when: 4.1.1. Given by someone other than the ‘complainant’ 4.1.2. Complainant cannot consent alone 4.1.3. Issues of a power hierarchy 4.1.4. Conduct or words used to deny consent 4.1.5. Complainant does not consent to furthering physical contact 4.2. Offences Related to Underagedness 4.2.1. Procure: obtain someone for sexual activity 4.2.2. Permit: sexual activity, or resorting to sexual activity 4.2.3. Participate: adultery; habitual drunkenness, other immoral behaviors 5. Theft 5.1. Conviction of Theft 5.1.1. Fraudulent → Color of Rights → Intent 5.1.2. Robbery involves theft with violence or threat of violence, assault, or the use of offensive weapons 5.1.3. Crown must show the victim was legitimately fearful of the threat 5.2. Break & Enter 5.2.1. Break: open, manipulate, alter something 5.2.2. Enter: go into somewhere you do not have the legal right to be 6. Reverse Onus 6.1. Criminal Law Onus 6.1.1. Onus is placed on the crown to prove guilty 6.1.2. Reverse onus places the burden on defence to prove something 6.2. Example 6.2.1. Stolen property/goods: accused did their due diligence to know goods in possession were not/are not stolen 7. Subjective Foresight 7.1. Two types of intent: direct & foresight 7.2. Direct 7.2.1. Consequences of actions are desired Use at your own risk 34 7.3. Foresight 7.3.1. Situation where foresight is virtually certain, not desired, but defendant continues regardless Defenses 1. Alibi 1.1. A good alibi must contain: 1.1.1. Statement indicating absence from crime scene 1.1.2. Explanation of accused’s whereabouts at the time 1.1.3. The names of any witnesses to the alibi 2. Types of Defences 2.1. Automatism 2.1.1. Acting is involuntary while the act occurs 2.1.2. i.e. sleepwalking and committing a crime 2.2. Intoxication 2.2.1. Being under the influence to the point where it affects the accused’s mental process 2.2.2. i.e. striking another person while drunk, unknowingly operating a car under influence 2.3. Battered Woman 2.3.1. Prolonged abuse as a reason to commit an act, the accused ‘snapped’ 2.3.2. i.e. years of child or spousal abuse 2.4. Self-Defence 2.4.1. Defending yourself, your property, those in the accused’s care, dwelling; must be necessary and reasonable 2.4.2. I.e. physically removing a burglar from the accused’s home 2.5. Necessity 2.5.1. Forced to act due to imminent danger 2.5.1.1. i.e. doctor speeding to the hospital to operate a surgery 2.6. Duress 2.6.1. Under section 17 of the Criminal Code 2.6.2. Excusable conduct due to threat of physical and/or bodily harm 2.6.3. I.e. committing an illegal act while being held at gunpoint 2.7. Mistake of Fact Use at your own risk 35 2.7.1. Unaware of facts, not pursuing the facts (unknowingly) 2.7.2. i.e. used counterfeit money obtained at a different store 2.8. Entrapment 2.8.1. Police encourages an action or baits someone into a crime 2.8.2. i.e. purchasing illegal narcotics from an undercover police officer 2.9. Double Jeopardy 2.9.1. Being tried twice for the exact same crime twice 2.9.2. i.e. killed someone, tried, acquitted, cannot be tried again (exceptions may apply if new evidence is surfaced) 2.10. Provocation 2.10.1. Committed in the ‘heat of passion’ 2.10.2. Not separated from the act with a cool off period 2.10.3. i.e. witnessing an assault, leads to crime against assailant almost imminently 3. Not Criminally Responsible 3.1. Section 16 of Criminal Code 3.1.1. No person is criminally responsible for an act committed or omission while suffering from something leaving them unable to identify wrongfulness of an action 3.2. Examples 3.2.1. Greyhound bus case, courthouse driver case, snowplow case Trial Procedures 1. Roles in Trial 1.1. Crown Prosecutor 1.1.1. The ‘government’ or ‘society’ lawyer 1.1.2. Presents evidence in court against accused, contacts police about cases 1.2. Defence Counsel 1.2.1. Represents the accused, rebuts evidence, and ensures the upholding of accused’s rights 1.3. Judge 1.3.1. Controls the courtroom, decides on admissibility of evidence 1.3.2. Non-jury cases → decide guilty and sentence Use at your own risk 36 1.3.3. Can exclude public, preside over, and form basis of appeal 1.4. Sheriff (if applicable) 1.4.1. Court administration and preparation 1.4.2. Serve ‘summons’, seize/sell property to settle claims 1.5. Clerk/Reporter 1.5.1. Reads charges, swears in witnesses 1.5.2. Record proceedings for future reference 2. Trial by Jury 2.1. Pros 2.1.1. Judges can’t make all decisions, diversity of perspectives, social values, unanimous decision 2.2. Cons 2.2.1. Less prejudicial, label the accused, facts of case, swaying, jury has minimal job 3. Contempt of Court vs Perjury 3.1. Summons 3.1.1. Document issued by the court to attend and produce documents 3.2. Subpoena 3.2.1. Told to go to court at a specific time to testify as a witness 3.3. Contempt of Court 3.3.1. Failure to appear court when summoned or upon receiving a subpoena 3.4. Perjury 3.4.1. Witness falsely testifies to mislead legal processes 4. Responsibilities of Different Courts 4.1. Federal Court 4.1.1. Intellectual property, maritime law, federal provincial disputes, civil cases related to terrorism 4.2. Tax Court 4.2.1. Appeals from tax assessments Use at your own risk 37 4.3. Federal Court of Appeal 4.3.1. Reviews decisions from both previously mentioned courts, highest court of the land for ~95% of all cases 4.4. Provincial Court 4.4.1. Most criminal offences, money and familial matters 4.5. Superior Court 4.5.1. Most serious criminal and civil cases, highest level of courts 4.6. Trial and Appeal Court 4.6.1. Review decisions of provincial and territorial courts Sentencing 1. Sentencing Options 1.1. Absolute Discharge 1.1.1. Applies to crimes with sentence less than 14 years 1.1.2. Immediate with no conditions attached 1.1.3. Accused is released with no criminal record 1.2. Conditional Discharge 1.2.1. Accused avoids record of conviction if they follow given conditions for them to carry out by a judge in a probation order at the time of sentencing 1.3. Suspended Sentence 1.3.1. After consideration of certain factors, a punishment is not carried out as long as the offender complies with certain conditions 1.3.2. If they do not comply, then they will be detained 1.4. Probation 1.4.1. Punishment that allows the offender to live in a community under conditions and supervision 1.5. Fines 1.5.1. Summary offences
