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december Flashcards

(61 cards)

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1
Q

THE ROLE OF THE CRIMINAL JUSTICE SYSTEM

A

The purpose of criminal law is to mitigate the worst behavior in society (anything below the “jerk line”)

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2
Q

Common law (cases) is still relevant to criminal law how?

A

there are not common law offenses, but there are common law defences

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3
Q

Principle of fundamental justice test

A
  1. Has to be a legal principle
  2. Sufficient societal consensus
  3. Manageable standard
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4
Q

Modern principle of statutory interpretation

A

words of the legislation be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”

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5
Q

Bilingual Interpretation

A
  • When one language is narrower than the other, choose it
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6
Q

Strict Construction

A
  • If you have a term capable of being interpreted in two ways, interpret the word in a way that favours the accused
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7
Q

Limits on the value of codification

A
  • Most provisions in the criminal code do not explicitly mention fault elements and it has been left to the common law (judges) to determine the rules
  • Problem worsened by fact that some provisions in the code do specifically mention fault elements, but without following any systematic or consistent pattern
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8
Q

charter analysis

A
  • Is there a breach of some right?
  • Is it saved?
  • Remedy?
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9
Q
  • Charter section with greatest impact on substantive criminal law
A

s.7

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10
Q

proper analysis for determining if there was a breach for s7 analysis

A
  1. Does the law infringe life, liberty or security of the person?
  2. Does it violate a PFJ?
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11
Q

law cannot be vague test

A

Test is if there is sufficient room for legal debate (law is unconstitutionally vague if it does not provide an adequate basis for legal debate)
- Recognizing that you can’t always state a law with absolute perfect clarity, but it’s got to be precise enough that we know how to disagree (that we know the terms for the debate)

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12
Q

overbroad

A

Does more than necessary to accomplish its goal

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13
Q

arbitrary

A

No connection between measure you are taking and problem you are trying to solve

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14
Q

disproportional

A

Can’t do too much to solve its problem (Life imprisonment for spitting on the sidewalk)

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15
Q

section 1 of charter

A

rights set out in the charter are subject to: “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

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16
Q

two choices in superior court

A
  • Judge alone

- Judge + jury

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17
Q

Distinction b.w summary and indictable

A
  • Summary conviction go to inferior court, cannot go to superior court
  • Indictable offence presumably going to superior court
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18
Q

Gold standard for justice

A

judge and jury

- But if you want to have less than perfect, you can have superior judge alone, or inferior court

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19
Q

S.469

A

super serious

- take away election, you go to judge and jury

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20
Q

S.553

A
  • Serious enough not to be summary conviction

- Also take away accused election, don’t get a choice, can’t go to superior court, you just go to inferior court

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21
Q

PRESUMPTION OF INNOCENCE

A

Onus is on the crown to prove guilt, not on the accused to prove innocence
- Onus is beyond a reasonable doubt

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22
Q

down the crown need to prove with absolute certainty?

A

But also need to remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so

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23
Q

what does BARD mean

A

Must be more than “the accused is probably guilty” (this is the everyday standard) - but certainty is not required

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24
Q

Credibility and Proof Beyond a Reasonable Doubt

A
  • Disbelief in the accused’s testimony (or lack of credibility) does not amount to proof of his guilt beyond a reasonable doubt. The crown must prove beyond a reasonable doubt that the events alleged did in fact occur
  • If you reject everything the accused says, this doesn’t prove guilt – ask whether the crown proved the guilt
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25
Tactical Burden
Don’t require the accused to do anything - There is a necessity for the accused to act or otherwise be convicted (show existence of doubt as to whether an element is proven - do this because Crown is doing a good job
26
Evidentiary Burden
- Criminal Code says accused must show evidence to the contrary, the accused is required to show doubt (REVERSE ONUS)
27
Legal Burden
Criminal Code requires the accused to prove some point (not only show doubt something is true, but prove it is false) (REVERSE ONUS)
28
words that indicate evidentiary burden
"In absence of evidence to the contrary"
29
words that indicate legal burden
"without lawful excuse", "proof of which lies on him", "establishes that"
30
Involuntariness
If an action is involuntary, then the elements of the crime cannot be proven (no act, no crime); an act is required because it implies choice (if no choice, no act, no crime)
31
Omission
- Generally, people are only found guilty of crimes for positive actions/conduct - But if it’s not explicit in a code, it’s probably not an offence
32
Simultaneity
- Another rule around proving elements of offence is not only that we have to prove each of them are true, but we have to prove that there is some point in time that all of them are true simultaneously
33
Consent
Consent cannot be used as a defense for a criminal act such as assault which may cause serious hurt or non-trivial bodily harm. Exception is for socially valuable events (ie. boxing) (R v Jobidon)
34
s. 11(d) of the Charter
presumption of innocence
35
Involuntariness goes beyond
goes beyond lack of mens rea | - more than lack of mens rea, there is not even an actus reus
36
When is causation an issue?
“by”, “because of”, “causes”
37
Thin skull rule
you take your victim as you find them
38
Smithers test for causation (factual)
1. Was a contributing cause | 2. Outside the de minimis range – means that it was more than trivial
39
Smithers test for causation (legal)
1. Was a contributing cause 2. Outside the de minimis range – means that it was more than trivial 3. Blameworthiness
40
Every person who, as a matter of fact, is a not-insignificant contributing cause of a result, is regarded by the law as causing the result
FALSE | - AND some kind of blameworthy state of mind
41
Harbottle test of causation for 1st degree murder
- Action must be a contributing cause - Action must be more than trivial/insignificant - Actions must form a substantial, essential, and integral part of the killing
42
Intervening cause
the possibility that there can be something that breaks the chain of causation (can meet the Smithers test initially, but something else comes along, and you’re no longer the cause)
43
If the victim could have prevented the death after the accused's action, the accused did not cause the result
FALSE | - Fact that they could have prevented it doesn’t mean you didn’t cause it
44
If proper medical treatment would have prevented the death, then the accused didn’t cause the death
FALSE | - S225
45
what do the three types of possession all require
- knowledge (two kinds) | - control
46
Conduct
Intention/recklessness
47
Circumstance
Knowledge/recklessness
48
Consequence
**no fault element**
49
“Intent to…”
**no external element**
50
Statement about the law eg. “Not authorized”
**no fault element**
51
What is the significance that s265(a) has the word "intentionally"?
- Excludes recklessly - If it hadn’t said intentionally, we would have said intent/reckless - The fact that word put in intentionally, didn’t add mens rea, but it took away mens rea • Amounted to saying recklessness won’t be enough, only intention will do
52
when do you have a causation element?
When you have a predicate offence, and a consequence flows from it, that’s when we have a causation issue - Assault, then assault causing bodily harm. Dangerous driving, and dangerous driving causing death
53
Distinction between general intent and specific intent
- General intent: "I meant to do it" | - Specific: "here is why I meant to do it"
54
Objective fault vs subjective fault
Although what we are looking for is subjective, can often get to subjective fault by reasoning from objective fault
55
what does recklessness require
that accused subjectively thought about the risk and decided to take the risk
56
motive
Specific intent is really just motive  why you intended to do it - Sometimes we are worried about motive, but only when the cc section specifically makes it
57
Intention
- Two things: either where is the person's conscious purpose (their goal) OR they don’t necessarily want it to happen, but see its certain or substantially certain to happen
58
is purpose the same as desire
no
59
RECKLESSNESS OR WILLFUL BLINDNESS
- Conduct of one who sees the risk and takes the chance, persists despite the risk - want to deny yourself knowledge because you want to be able to say you don’t know, therefore not guilty
60
Willfully blind and Knowledge
- Willful blindness IS knowledge, they are the same thing | - If you prove willful blindness, you prove knowledge
61
relaxing symmetry
Willing to relax symmetry of fault elements if the offence is similar level of blameworthiness (ie. Cannabis resin vs. narcotic)

Criminal law (2 decks)

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