Law Unit 4 Test Flashcards
What does Mens Rea mean?
Mens Rea is a deliberate intention to commit a wrongful act, with reckless disregard for the consequences, which means the intent of the crime, the mental capacity to do it, and the thought behind it.
What does Actus Reus mean?
Actus Reus is “the guilty act” - the voluntary action, omission, or state of being that is forbidden by the Criminal Code, which means the act itself.
Why do you need both elements to charge someone with 1st-degree murder?
You need both elements (men’s rea & actus reus) to charge someone with 1st-degree murder in order to see how much planning was actually involved to constitute 1st-degree, as it shows a well-planned men’s rea and you succeed with the action.
What is the most basic reason for having criminal law?
For the Protection of the Public.
The criminal code is overseen by which level of government?
The Federal government.
What is the difference between criminal negligence and recklessness?
When you’re criminally negligent you don’t know you’re doing something wrong and it leads to a crime while during recklessness you know you’re doing something wrong and it leads to a crime.
What is the difference between Strict and Absolute liability offences? Give an example.
Absolute liability involves lower forms of crimes where you are simply charged (speeding ticker, no men’s rea) and there’s no defence to it because you simply committed the act while strict liability involves bigger crimes (murder) where you can face jail time and there’s the defence of due diligence.
For example, when a company polluted the duck’s habitat so they had to make the ducks stop going there but no matter what they did to make the ducks go away, they kept coming back.
Give an example of 3 “Parties” to a crime.
- Principle Actor: A person who actually commits a crime – that is commits the actus reus and has the men’s rea.
- Aider and Abettor: A person who helps and encourages the principal actor to carry out a crime.
- Counsellor: A person who counsels or recommends that a person commit an office.
What is conspiracy?
Conspiracy is an agreement between two or more people to carry out an illegal act, even if that act, does not actually occur. Basically, when you decide that you’re going to plan with someone else to commit a crime and it gets laid on with other charges.
Is Motive the same as Intent?
No, Motive is the reason to do the act while Intent is the decision to go through with the act.
What is the highest court in Canada? Do they hear anything but appeals?
The Supreme Court of Canada and no, they don’t.
The burden of proof in any criminal legal case is always on which side?
It is on the side of The Crown (Prosecution).
Why does the court allow for cross-examination?
In order to test the validity and show the accuracy of the evidence testified by that witness.
If you go to the police station do you have to give them a blood sample if they ask for it?
No, unless they have a warrant.
Do you have to give a breathalyzer test?
Yes, if you refuse you can be charged with failure to give a breathalyzer and you’ll have to anyway.
How many levels of police are there in Canada?
There are 4: Indigenous Police, Municipal, Provincial, Federal
York Region, OPP, RCMP, and some reserves have their own band of police
What is the difference between Forensic and Physical evidence?
Physical evidence is any object, impression or body element that can be used to prove or disprove facts relating to an offence.
Forensic evidence is the use of biochemical and other scientific techniques to analyze evidence in a criminal investigation.
Thus, physical evidence is tangible such as a knife at the scene but forensic evidence is the analysis such as autopsies that show a murder victim’s time of death.
What does DNA stand for?
Deoxyribonucleic acid.
When can the police arrest you without a warrant?
- if you have committed, are about to commit or are in the process of committing an indictable offence
- if s/he needs to preserve the evidence
- if s/he needs to prevent you from committing another offence
What is a citizen’s arrest?
A citizen’s arrest is an arrest without a warrant by any person other than a peace officer. Private citizens have the power of arrest if:
- if you have committed, or are in the process of committing an indictable offence
- if you are escaping from the police
- you are taking their taking property
If a private citizen arrests you, they must turn you over to the police ASAP and use reasonable force or risk being charged with assault.
What are the 3 levels of offences and how do they differ from one another?
Summary: A crime that is considered less serious and carries a lighter penalty. Fined up to $2000 and/or imprisonment for up to 6 months, Tried in provincial court, No jury
Indictable: A crime that is more serious than a summary conviction offence and carries a heavier penalty, 2 years to life imprisonment, depending on the offence could be tried in Provincial or Superior Court, jury/No jury
Hybrid: an offence that the Crown can try either as a summary or indictable offence, always treated as indictable until charges are laid in court, then the court must decide how to treat the offence, Provincial or Superior Court, Jury/No Jury, Starts as an Indictable but may get kicked down to a summary depending on the person (if they have a criminal record, etc)
What does non-culpable homicide mean? Give 2 examples where it may apply.
Non-culpable homicide is a killing for which a person cannot be held legally responsible. Basically, you’ve killed someone but you’re not found guilty of it.
It applies when:
- You’re a soldier in times of war
- You’re self-defending
What is the difference between 1st and 2nd-degree murder?
The amount of planning and motive involved.
First-degree murder is a killing that is planned and deliberate, is the result of a contract, causes the death of a peace officer, or is committed during another serious crime while second-degree murder is any murder not classified as first-degree murder.
What is the difference between robbery and theft?
Robbery involves the use of force (violence) while theft does not.
Why is trafficking drugs a worse offence than possession?
Trafficking drugs is a worse offence than possession because you are harming the public by distributing the drugs to others.
Why can non-insane automatism be a defence?
Because it’s a condition in which a person acts without being aware of what he or she is doing. An external factor caused you to have no control over what you are doing, such as a case where a man killed his inlaws while sleepwalking.
What is the rule you need to remember if you are going to use Self-Defence as a defence?
That you may only use the reasonable force necessary to defend against the attack.
What is Double Jeopardy?
Double Jeopardy is the legal doctrine that an accused person cannot be tried twice for the same offence.
How can you use entrapment as a defence?
When you only committed the charged crime because the police officer persuaded you to do it.
What does Recidivism mean?
To return to a life of crime after serving jail time.
What is the difference between Aggravating and Mitigating factors in a crime?
Mitigating factors in a crime can lessen the charges such as if the accused doesn’t have a criminal record.
Aggravating factors can increase the charges and the severity of the crime, such as if a person murdered someone and then mutilated the body.
What is Plea Bargaining?
Plea Bargaining is when you plea out and form an agreement with the court to plead guilty, get a lesser charge, and then not have to attend an expensive trial.
What is the difference between a consecutive and concurrent sentence?
Consecutive sentences are sentences back to back while concurrent sentences are ones served together and often, for life.
What does YCJA stand for? Why are juveniles treated differently than adults when it comes to crime?
YCJA stands for the Youth Criminal Justice Act and they’re treated differently because they have a strong chance at being rehabilitated back into society.
Intent
A state of mind in which someone desires to carry out a wrongful action, knows what the results will be, and is reckless regarding the consequences.
Motive
The reason a person commits a crime.
Wilful Blindness
A deliberate closing of one’s mind to the possible consequences of one’s actions.
Due Diligence
The defence that the accused took every reasonable precaution to avoid committing a particular offence.
Homicide
The killing of another human being, directly or indirectly.
Infanticide
The killing of a newborn infant by the child’s mother.
Colour of Right
The honest belief that a person owns or has permission to use an item.
Mental Disorder
Defined in the Criminal Code as a “disease of the mind.”
Automatism
A condition in which a person acts without being aware of what he or she is doing.
Provocation
Words or actions that are insulting enough to cause an ordinary person to lose self-control.
Alibi
A defence raised by the accused claiming that he or she was somewhere else when the offence was committed.
Legal Definition of Crime:
- Only the federal government has the authority over criminal law
- Provincial offences are not crimes but can be quasi-criminal in nature (careless driving, drinking under age)
Subjective Intent:
- Accused’s actual intention or knowledge of the effects of his/her conduct
- Recklessness – if you can see that a behaviour may be dangerous and continue with it anyway, your conduct is reckless and therefore you have criminal intent
- Willful Blindness – if you are suspicious but do not ask questions because you do not want to know that a crime has occurred you have subjective intent.
Objective Intent:
- What a reasonable person would have understood, perceived or foreseen in the circumstances
- Usually associated with Civil Law – Negligence
Strict Liability
- Do not require proof of Mens Rea
- Usually found in statutes other than the Criminal Code
- Not criminal in the true sense but exists for general protection of public and results in fine/imprisonment
- Merely to commit the offence renders the doer guilty, the intent has no relevance
- There is a defence to strict liability cases (Reasonable Care Defence) i.e. Environmental Abuses
Absolute Liability
- Reasonable care is not accepted as a defence
- Mens Rea not necessary to be proven
- Since absolute offences admit no defence if the Crown proves Actus Reus exists, the Supreme Court of Canada decided such offences cannot provide imprisonment i.e. Speeding Tickets
Name the legal terms for the two elements that must be present in most cases for an action to be considered a criminal offence under Canadian law. Define both terms in your own words.
Actus Reus: The actual act being committed that is against the Criminal Code.
Mens Rea: The intention needed that shows willfulness to commit a wrong act.
What is the main difference between a strict liability offence and an absolute liability offence?
Strict liability can use the defence of Reasonable care while absolute liability can not use Reasonable care as a defence.
What is a crime?
An act or omission of an act that is prohibited and punishable by federal statute.
What is criminal law?
The body of laws that prohibit and punish acts that injure people, property, and society as a whole.
What is the criminal code of Canada?
The Criminal Code of Canada is a federal statute that contains the majority of the criminal laws passed by parliament.
- Lists the offences and sentences to be imposed
- The procedure to follow when trying those accused of crimes
- Reflects the social values of the majority of Canadians
How did John A. MacDonald contribute to the development of the Criminal Code?
John A. MacDonald contributed to the development of the Criminal Code by believing that a single set of criminal laws for the entire country would eliminate some of the confusion and unfairness that existed previously.
What is section 91(27) of the Constitution?
Section 91(27) of the Constitution grants the federal government the power to exercise the legal authority to make criminal laws for Canada.
What are the actus reus and the men’s rea?
Actus Reus: “The guilty act” - the voluntary action, omission, or state of being that is forbidden by the Criminal Code.
Mens Rea: A deliberate intention to commit a wrongful act, with reckless disregard for the consequences.
What is the difference between general and specific intent?
General intent is the desire to commit a wrongful act, with no ulterior motive or purpose while specific intent is the desire to commit one wrongful act for the sake of accomplishing another.
Define motive.
The reason a person commits a crime.
Who can be defined as “criminally negligent”?
Someone who:
a) In doing anything, or
b) In omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons
What is “recklessness”?
Consciously taking an unjustifiable risk that a reasonable person would not take.
A friend offers to sell you a used phone at a super cheap price. A second student was recently complaining about how someone stole their phone. You buying the phone could be an example of?
Wilful Blindness (Possession of Stolen Property)
What is a strict liability offence?
An offence that does not require men’s rea but to which the accused can offer the defence of due diligence.
What is an absolute liability offence?
An offence that does not require men’s rea and to which the accused can offer no defence.
There are three levels of offences:
Summary Conviction Offences
Indictable Offences
Hybrid Offences
Summary Conviction Offences
- A crime that is considered less serious and carries a lighter penalty
- Fined up to $2000 and/or imprisonment for up to 6 months
- Tried in provincial court
- No jury
Indictable Offences
- A crime that is considered more serious than a summary conviction offence and carries a heavier penalty
- 2 years to life imprisonment
- depending on the offence could be tried in Provincial or Superior Court
- Jury or No jury
Hybrid Offences (Dual procedure Offences)
- an offence that the Crown can try either as a summary or indictable offence
- always treated as indictable until charges are laid in court, then the court must decide how to treat the offence
- Provincial or Superior Court
- Jury or No Jury
Principal Actor:
A person who actually commits a crime – that is commits the actus reus and has the mens rea.
Aider & Abettor:
A person who helps and encourages the principal actor to carry out a crime.
Counsellor:
A person who counsels or recommends that a person commit an offence.
Accessory after the fact:
A person who receives, comforts, or assists anyone who has been a party to an offence.
Attempt:
Intending to commit a criminal act but failing to carry out his intent, the person is still recognized as a danger to society.
Conspiracy:
Agreement by 2 or more people to carry out an unlawful action.
Two fundamental principles of the Criminal Trial Process:
- An accused person is innocent until proven guilty.
- Guilt must be proven beyond a reasonable doubt
Beyond a reasonable doubt is
a standard of proof whereby a defendant’s guilt must be proven to the extent that a reasonable person would have no choice but to conclude that the defendant did indeed commit the offence.
Burden of proof:
Refers to the Crown’s obligation to prove the guilt of the accused beyond a reasonable doubt. It is not up to the accused to prove innocence.
The Provincial Court, Criminal Division:
- Provincial court is the lowest level of Canadian courts.
- Judges are appointed by the provincial government and cases are tried by judge alone.
- They have the jurisdiction to hear summary conviction offences, less serious crimes that carry a lighter penalty, and certain indictable offences, more serious crimes that carry a heavier penalty.
Superior Provincial Court:
- They are the highest criminal and civil courts in the provinces and have a trial and appeal division.
- Has jurisdiction in both criminal and civil matters, beyond the lower courts.
- Judge and jury unless the accused and the provincial Attorney General consent to trial by judge alone.
The Federal Court System
- A court that hears cases involving the federal government and consists of a trial and appeal division.
- Also hears appeals from federally appointed boards, commissions and administrative tribunals.
Supreme Court of Canada
- highest appeals court in Canada, which also deals with constitutional questions referred to it by the Federal government.
- Consists of a chief justice and eight justices, all of whom are appointed by the federal government. Three come from Quebec, three from Ontario, two from the western provinces and one from the Atlantic Provinces.
The Crown’s Opening Statements:
- The Crown presents its case before the defence it has the burden of proof
- It identifies the offence committed, summarizes the evidence against the accused, and outlines the way the Crown will present its case.
Examination of Witnesses:
- Direct Examination - The first questioning of a witness to determine what he or she observed about the crime. (The Crown will ask each witness to tell what he or she observed about the case.)
- Cross-Examination - The second questioning of a witness to test the accuracy of the testimony, performed by the opposing attorney. (Used to convince the jury that there are contradictions in the witness’s testimony and weaken the Crown’s case.)
Examination of Witnesses:
- Direct Examination - The first questioning of a witness to determine what he or she observed about the crime. (The Crown will ask each witness to tell what he or she observed about the case.)
- Cross-Examination - The second questioning of a witness to test the accuracy of the testimony, performed by the opposing attorney. (Used to convince the jury that there are contradictions in the witness’s testimony and weaken the Crown’s case.)
The Defense Responds:
- Motion for Dismissal - A request by defence counsel that the judge dismisses the charges against the defendant. (After the calling of the witnesses, if the Crown has failed to prove guilt beyond a reasonable doubt.)
- Directed Verdict - A decision by the judge to withdraw the case from the jury and enter a verdict of not guilty. (If the judge agrees with the defence.)
- The trial continues if the judge does not dismiss the charges and the accused pleads not guilty.
- Defence - Opening Statement
- Defence - Direct Examination
- Rebut - To contradict evidence introduced by the opposing side. (After the defence has presented new evidence.)
- Surrebuttal - A reply to the opposing side’s rebuttal. (After the Crown’s rebut.)
The Rules of Evidence:
- The Crown or the defence may object to questions asked by the opposing attorney or to answers provided by witnesses.
- The judge rules whether the evidence in a question is “admissible” and may be allowed by the court.
Leading Questions:
Suggests to the witness a particular answer.
Hearsay Statements:
An attorney may ask a witness only about what the witness saw or experienced firsthand, not about something he or she heard from a third party.
