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FSC360 > Introductory Overview of the Legal System > Flashcards

Introductory Overview of the Legal System Flashcards

1
Q

What is the legal system in a nutshell?

A

A structure of established legal rules and procedures aimed at realizing a policy objective

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2
Q

What is the policy objective of criminal law?

A

To uphold and maintain the administration of justice in Canada

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3
Q

What is the key element of criminal law?

A

Ensuring public safety

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4
Q

How does the criminal law uphold its objective? (4 key points)

A

By seeking to:
1. Protect society and manage safety risks to victims, witnesses, and general public
2. Balance public interest and individual rights
3. Ensure fairness in the criminal court process by respecting the rights of accused and by giving victims the opportunity to have their voices heard
4. Engage in the adversarial process to explore the strengths and weaknesses of the case while ensuring the case is addressed in a timely manner.

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5
Q

What is important to remember about justice?

A

can be a loaded term/idea and its meaning may change upon one’s perspectives and experiences.

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6
Q

What is the key to balancing societal interests with individual rights?

A

The individuals within the criminal justice system must act within their role for the adversarial system to work.

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7
Q

What is the role of the police within the adversarial system?

A

Investigate the case and provide information

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8
Q

What is the role of the defence within the adversarial system?

A

Fearlessly raise every argument

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9
Q

What is the role of the Crown within the adversarial system?

A

Fairly present the evidence

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10
Q

What is the role of the trier of fact within the adversarial system?

A

Assess each case on the totality of the evidence and apply legal standards as appropriate.

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11
Q

What is the role of the expert in the adversarial system?

A

Present opinion with neutrality.

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12
Q

What are the two areas in which the law is found?

A

Common law and statutes

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13
Q

What is common law?

A

Case law

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14
Q

What is case law?

A

Precedent that is either binding or persuasive on the judge hearing the particular case

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15
Q

Do judges have to follow case law?

A

No

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16
Q

What is a statute?

A

Written legislation/written law

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17
Q

What statute is criminal law written in?

A

The Criminal Code of Canada

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18
Q

What is the Criminal Code?

A

Sets out what the offences are and the essential elements of the offence.

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19
Q

Which has greater weight, common law or statutes?

A

Both inform each other and work together.

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20
Q

Differentiate between binding and persuasive.

A

Binding: case law from upper courts is binding to lower courts
Persuasive: occurs within same level of court and thus doesn’t have to be followed in future cases within the same level.

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21
Q

Describe the steps leading to disclosure in the criminal justice system.

A

Alleged incident
Arrest and charge
Bail hearing
Disclosure

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22
Q

What are the two possible outcomes following disclosure?

A

Guilty plea or trial

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23
Q

Describe the steps following a guilty plea

A

Plea
Convicted and sentences
Court of appeal (rarely)

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24
Q

What ae the two possible outcomes of a trial?

A

Convicted and sentenced or acquitted

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25
Q

Describe the steps following a conviction and sentencing.

A

Court of appeal (as of right)
SCC (with leave or if one CA judge dissents)

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26
Q

What are the two ways to be heard by the Supreme Court of Canada?

A
  1. as of right: do not need to seek leave
  2. with leave: submit a leave to appeal application
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27
Q

When is leave granted?

A

In cases of national public importance involving a legal issue that needs to be clarified

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28
Q

What is disclosure?

A

Information given to defence by Crown

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29
Q

What is the Crown required to disclose to the defence?

A

All relevant information, even if they do not intend to use that information in their case.

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30
Q

What is a key takeaway of R v. Storrey?

A

To arrest, the police officer must have reasonable and probable grounds that the person to be arrested committed the offence.

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31
Q

What is considered reasonable and probable grounds for arrest?

A
  1. Subjective reasonable and probable grounds
  2. Those reasonable and probable grounds must be justifiable from an objective point of view (standard of the reasonable person)
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32
Q

What is a key takeaway from Duguay?

A

A hunch is not a reasonable and probable ground for arrest

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33
Q

Do police need to establish that conviction will result or that the prosecutor will prosecute before making an arrest?

A

No, only need reasonable and probable grounds.

34
Q

What is the reasonable person?

A

The standard of a hypothetical person with average care, skill and judgment.

35
Q

What are the Section 10 Charter rights that the police must inform a person of upon arrest?

A
  1. s. 10(a): right of person to be told of reason they are arrested/detained
  2. s. 10(b): right to retain and instruct counsel without delay and to be informed of the right
36
Q

What is an obligation of police during arrest that arises from common law?

A

Person cautioned that the may be/will be/are charged with a criminal offence and they are under no obligation to speak to police

37
Q

What is the significance of arrest?

A

On arrest, an individual is charged with a criminal offence
Being charged with a criminal offence triggers certain rights.

38
Q

What does section 7 of the charter state?

A

Right to life, liberty and security of the person and not to be deprived thereof except in accordance with principles of fundamental justice

39
Q

What does section 8 of the charter state?

A

Right to be secure from unreasonable search and seizure

40
Q

What does section 9 of the charter state?

A

Everyone has the right not to be arbitrarily detained or imprisoned.

41
Q

What does section 10 of the charter state?

A

Everyone has the right on arrest or detention
a) to be informed promptly of reasons therefor
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeus corpus and to be released if the detention is not lawful.

42
Q

What does section 11 state in terms of arrest?

A

Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence.

43
Q

Describe the parts of section 11 that relate to bail proceedings.

A

s. 11(d): presumed innocent until proven guilty
s. 11(e): right of accused not to be denied reasonable bail without just cause

44
Q

What is a key takeaway of R. v. Antic?

A

Presumption that accused be released on least onerous conditions

45
Q

Who does the Charter apply to as set out in S. 32?

A
  1. Parliament and the Canadian government
  2. The provincial legislatures and governments
  3. The matters within the authority of the Federal and Provincial governments
46
Q

Who does the Charter not apply to?

A

Private individuals, businesses or other organizations

47
Q

What does section 24(1) of the Charter state?

A

Anyone whose rights or freedoms have been infringed or denied may apply to obtain such a remedy as the court considers appropriate and just in the circumstances

48
Q

What does section 24(2) if the charter state?

A

Where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms, the evidence shall be excluded if it is established that the admission of it would bring the administration of justice into disrepute.

49
Q

Describe the three-part test to determine whether the impugned evidence should be excluded under s. 24(2) of the CHarter.

A
  1. Seriousness of the Charter infringing state conduct (i.e., breach willful or deliberate v. the officers acting in good faith)
  2. Impact on the Charter protected interests of the accused
  3. Society’s interest in the case being adjudicated on its merits.
50
Q

Can charter rights be limited?

A

Yes

51
Q

What does the Oakes Test say about limitations to Charter rights?

A

The limitation must have a pressing and substantial objective and can be demonstrably justified in a free and democratic society.

52
Q

Describe how R. v. Thomsen is an example of limits to Charter rights.

A

Roadside breathalyzer testing is a reasonable limitation on the right to retain counsel and instruct counsel at the roadside.

53
Q

What precedent was laid out in R. v. Stinchombe?

A

The Crown has a duty to provide the accused with all relevant information arising from the criminal investigation so the accused can make full answer and defence.

54
Q

Why is R. v. Stinchcombe and important case?

A

Prior to it, there was no requirement on the Crown to provide the accused with all of the information about the investigation of their case.

55
Q

Does Stinchcombe apply to first or third party records?

A

First

56
Q

What police duties are connected to the Crown’s duty to disclose?

A
  1. Collect evidence
  2. Preserve evidence
57
Q

What are the limited exceptions to the Crown’s duty of disclosure?

A

Protection of victim and witness privacy
Protection of informant identity

58
Q

What did Stinchcombe define as “relevant” information?

A

If the information is of SOME USE then it is relevant and the DETERMINATION as to whether it is sufficiently useful to put into evidence should be made by the DEFENCE and NOT by the PROSECUTOR.

59
Q

What section of the Charter guarantees access of disclosure?

A

Section 7

60
Q

What happens if evidence is not collected and preserved?

A

An accused’s s. 7 rights are violated and the court may order a remedy.

61
Q

What are examples of remedies to a violation of s. 7 Charter rights?

A

new trial
stay of proceedings

62
Q

What does stay of proceedings mean?

A

Prosecution does not proceed but the Crown has the right/ability to continue its prosecution within a year of the stay being entered.

63
Q

What precedent was laid out by R. v. Pascal?

A

The Crown is obligated to disclose criminal records and the outstanding charges of witnesses in unrelated police investigations laid by the investigating police service as “first party” disclosure.

64
Q

What was the underlying reasoning for the precedent set out in R. v. Pascal?

A

Criminal records are within the possession and control of the investigating police service.
Although CRs and outstanding charges are not part of the investigation, they are “obviously relevant” because they can be used to impeach a Crown witness and must be included in Stinchcombe disclosure.

65
Q

What are three other points laid out in R. v. Pascal?

A

Criminal convictions are relevant to a witness’ trustworthiness.
Witness can be cross-examined on unrelated conduct not resulting in a conviction
Although a witness having outstanding charges is generally irrelevant to credibility, there is a recognized exception: when the witness has a possible motivation to seek the prosecution’s favour

66
Q

What are the three classifications of offences?

A

Summary
Hybrid
Indictable

67
Q

What is a summary offence?

A

Maximum sentence can be two years.
Jury trial not an option.

68
Q

What is a hybrid offence?

A

Crown will elect whether to proceed summarily or by indictment.

69
Q

What is an indictable offence?

A

If convicted, jail time typically >2 years.
Served in federal penitentiary.
Some indictable offences can carry a potential max of life imprisonment.

70
Q

What is the onus of the Crown in a criminal trial?

A

Essential elements must be proven beyond a reasonable doubt for the accused to be found guilty.

71
Q

What are the essential elements of the offence?

A

Act + intent

72
Q

What is actus reus?

A

Acts: the act/actions that the offence is based upon Act described in Criminal COde, which creates the offence

73
Q

What is Mens Rea?

A

Intent: requirement to prove mental element of offence

74
Q

What is addressed in Mens Rea?

A

The accused’s state of mind at the time of the offence

75
Q

What are the 4 ways someone can be considered to cause mischief as described in s. 430 of the criminal code?

A

Everyone commits mischief who willfully:
a) destroys or damages property;
b) renders property dangerous, useless, inoperative or ineffective;
c) obstructs, interrupts or interferse with the lawful use, enjoyment or operation of property; or
d) obstructs interrupts or interferes with any person in the lawful use, enjoyment or operation of property

76
Q

Outline the Actus Reus and Mens Rea of mischief.

A

Actus Reus: set out in situations described in sections 430(I)(a)-(d)
Mens Rea: “willfully”

77
Q

What are the 3 well-established legal principles applicable to all criminal trials?

A
  1. A criminal trial is not a credibility contest between witnesses
  2. The accused is presumed to be innocent
  3. The onus of proving the case BARD rests at all times with the Crown.
78
Q

What is the standard of proof ?

A

Proof beyond a reasonable doubt.

79
Q

What did R. v. Lifchus describe as proof BARD?

A

Not an imaginary or frivolous doubt
Based on reason and common sense
Logically derived from evidence or absence of evidence
Probably/likely guilty not sufficient
BUT, virtually impossible to prove anything to absolute certainty
Convict if you are sure the accused committed the offence

80
Q
A

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