Mid-Term 2

Question 1

What do the police operate under? CCM

Answer 1

Presumption of Guilt

Question 2

What does the CCM emphasize?

Answer 2

Social Order & punishments, deterrence of criminal conduct, concern for victims and victims rights

Question 3

What is “assembly line justice”?

Answer 3

Concerned with efficiency in the operation of the criminal process (b/c of high capacity to apprehend, convict & dispose of offenders quickly)

Question 4

What is CCM?

Answer 4

Crime Control Model. Characterized as conservative, harsh, punitive approach to dealing with crime and social deviance

Question 5

Who is protected in DPM?

Answer 5

Looks at the interests of individual rights. Presumption of innocence. Police power is very constricted (contrast to CCM)

Question 6

Legal guilt vs Factual guilt (DPM)

Answer 6

DPM emphasizes legal guilt as opposed to factual guilt

Question 7

What is DPM?

Answer 7

Due Process Model. Characterized as a liberal model and is encapsulated by the phrase, “doing it by the book”

Question 8

What are the benefits of DPM?

Answer 8

DPM protects ordinary individuals in their jobs (ie, abuse of power, discrimination). Enhances accountability and protects the vulnerable

Question 9

What are the critiques of due process?

Answer 9

Rights of individuals are prioritized over the rights of society and responsibility of citizens. It is obstructionist and expensive. Allows criminals to go free on technicalities. Rights of victims ignored. Judiciary given veto powers. Vigilantism.

Question 10

What is the Reliability Model?

Answer 10

Hybrid of CCM and DPM. Applies “truth seeking” model where info gathering trumps confession. “Best practices”, procedural safeguards

Question 11

BNA Act (1867)

Answer 11

The process of confederation, sovereignty achieved. The act created 2 levels of gov’t and gave them different powers (‘division of powers’). Allowed the federal gov’t to create a common currency, a criminal codes, a controlled military and powers over other important areas

Question 12

What is a constitution?

Answer 12

A set of rules regulating the operation of a country’s government

Question 13

What are the four doctrines that form a breach of the principles of justice?

Answer 13

Arbitrary, Vague, Overboard, Grossly Disproportionate

Question 14

Abitraty

Answer 14

Disconnect between limit of liberty and the objective of the prohibition

Question 15

Vague

Answer 15

When a law fails to detail the practices to the ordinary citizen that are required to prohibited

Question 16

Overboard

Answer 16

When laws over-stretch their objective

Question 17

Grossly Disproportionate

Answer 17

When a law causes harm that is much more severe than the objective that the law seeks to address

Question 18

Effect of Arbitrary

Answer 18

‘Capricious’; may lead to abuse of power; brusque power by the state; no rational basis; does not permit flexibility and change in circumstances/context

Question 19

Effect of Vague Laws

Answer 19

‘Guessing game’; difficult to know jurisdiction ie, public nuisance (civil or criminal); defined on case by case basis; undermines security of citizens (ie, stalking laws)

Question 20

Effect of Overboard laws

Answer 20

Obscure state’s improper purpose for regulating expression; advances state interests; create ‘speech bubble’

Question 21

Effect of Grossly Disproportionate

Answer 21

Ignore context; may bring harm/injury to groups

Question 22

Amending Formmulas

Answer 22

Presence of amending formulae which can be activated. Constitutional assemblies, referendums. Believed to facilitate a degree of stability and democracy

Question 23

The Legislative Branch

Answer 23

Principle of parliamentary supremacy. Can make laws if consistent with the constitution. (Evoke change to laws we don’t like? Vote, Change the laws we don’t like?)

Question 24

The Executive Branch

Answer 24

Includes all branches (the civil service)
Government agencies, boards and commissions
Powers determined by legislation. Empowered to run gov’t programs, implement & enforce various laws passed by the legislative branch
They have the power to create new rules and regulations which have the force of law

Question 25

Force of Law

Answer 25

Internalize law and do not question it. By process of internalization, the law is empowered by this. Critiqued on the basis that not everyone has access to 'the law'

Question 26

The Judicial Branch

Answer 26

JB- courts and judges Law not politics; impartial legal actors. Do not make laws, interpret them Strike them down if unconstitutional Judges have been responsible for making the most of our laws through creation of the common law system. Notion of precedent

Question 27

Absence of Written Laws

Answer 27

Judges did not have written laws to guide them. Judges were still appointed; they were given the status and authority to make those decisions. Only guided by local customs, traditions, religious values, and their own sense of fairness and proportionality. Their role was to simply enforce the law, not create it. The law was ‘common’ because it reflected the traditions and customs of the ‘common’ people

Question 28

Why Was Precedent Important?

Answer 28

Knowledge of precedent became important because ordinary people were not well-versed in legal proceedings and jargon with tout assistance (19C to present)

Question 29

What is the Role of the Courts?

Answer 29

Its objective is to preserve dignity of the process through efficiency and fairness.

Question 30

What is the Extent of Protection under the Charter & Constitutionality of laws

Answer 30

Assumes that each party has equal standing; weaker party in theory protected by the Charter. Critiqued because more money = better lawyer

Question 31

Provincial Inferior Courts

Answer 31

Criminal, Civil, Family, Traffic etc. Specialized courts operate upon ethos of 'therapeutic jurisprudence'. Diversion Programs: rerouting them out of the prison programs and into treatment programs. Manage less serious summary convictions, offences and preliminary hearings

Question 32

Summary Offences

Answer 32

Less serious offences. No right to select court/trial by jury. Max sentence is 6 months in jail or $5k

Question 33

Indictable Offence

Answer 33

Elective/election on trial by jury

Question 34

Dual Offences

Answer 34

Crown attorney: discretion on whether to proceed on summary on indictable cases

Question 35

Preliminary Hearnings

Answer 35

To determine if there is enough evidence to proceed

Question 36

Provincial Superior Courts

Answer 36

Highest trial level in province (formal): jury trials, representation by counsel, judges appointed and paid by the Federal gov't. Two levels of high provincial court: trial and appeal court (branches) - surrogate, family, criminal

Question 37

Who is the Highest Court of Appeal?

Answer 37

The Supreme Court of Canada

Question 38

What Happens if a Court Decision is Appealed?

Answer 38

The appellant must satisfy that trial judge made an error in the application of the law

Question 39

The Media in Courts

Answer 39

Generally an 'open court' but can ban media when it come to protecting minors/children. This ensures a fair trial, safety for the involved and reduces exposure to mitigate bias.

Question 40

Why was the Charter put into place?

Answer 40

pre 1982, there was nothing in the Constitution to prevent discriminatory legislation or violation of rights and freedoms. !982, Canada became fully sovereign nation and enshrining the Charter as the highest law in Canada

Question 41

What is the purpose of the Charter?

Answer 41

Regulatory rights-based framework - regulates relationship between gov't and individuals to ensure that the public's basic rights are protected. Expansive scope - it applies to all matters of federal, provincial, and territorial gov'ts. Constitutionality - Canadian courts and gov't must take the Charter into account when deciding on issues that affects people's rights and freedoms

Question 42

The interpretation of the Charter

Answer 42

The Charter is a purposive document, meaning the interpretations are more generous rather than legalistic (ie, strict)

Question 43

What is the Reasonable Limits Clause (RLC)?

Answer 43

Section 1, applies to all sections of the Charter. Limits to be placed on our rights and freedoms when the limitation can be justified by government

Question 44

Lawful limitations (RLC)

Answer 44

1. Pressing and substantial 2. Lawful manner 3. Disproportionate impact/effect of than application Rights and Freedoms are not absolute

Question 45

Three-prong test by the courts

Answer 45

Used to determine if a law infringes a Charted right is saved by S.1 1. Must be prescribed by law 2. Must show it is pressing and substantial 3. Must show it is demonstrably justified

Question 46

The Notwithstanding Clause

Answer 46

Section 33 - provincial/ federal authorities have the power to override sections of the Charter. Fundamental freedoms; legal and equality rights. Sunset Clause built in (override for 5 years - election). Allows state to create laws that operate in spite of the Charter

Question 47

Notwithstanding Clause Example

Answer 47

R v Keegstra (1990). Was charged with promoting hate speech (teaching that the holocaust was fake). K challenged the hate speech section of the CC. Argument: unjustified limitation on his section 2(b) rights - freedom of expression. Lost because of S1.

Question 48

Significance of S2(a)

Answer 48

Ensures that everyone is free to hold their own religious beliefs.

Question 49

Limitations to 2(a)

Answer 49

One has freedom to hold a religious view that is protected, but also has the absence of coercion and constraint to participate in another practice. This freedom is limited/restricted by the rights of others. Actions are not protected under this (fundamental freedoms, discrimination)

Question 50

Section 8 - Search and Seizure

Answer 50

Purpose is to protect a reasonable expectation of privacy. W/o sufficient reason, police and gov't cannot invade personal privacy

Question 51

Search Warrants

Answer 51

Police must obtain a pre-authorized search warrant from a judge. Usually would be ruled reasonable. Onus on the suspect

Question 52

Reasonableness of search - 5 criteria

Answer 52

The court will consider the state's interest 1. intrusive nature of the search 2. the location of the search 3. impending safety concerns 4. the information relied upon the state agent conducting the research 5. the police, specifically, must have reasonable and probable grounds to believe a search will uncover criminal activity (hunches or stereotypes/preconception will not suffice)

Question 53

Significance of Section 15

Answer 53

Protects the dignity and worth of individual. Referred to as the equality provision, it can be divided into 2 sections: accommodation of difference and protection from discrimination

Question 54

Significance of Equality

Answer 54

Substantive meaning. This is aimed at eliminating treatment, which though equal, had a disproportionately negative effect on people who have suffered a historic disadvantage

Question 55

Formal equality vs Substantive equality: critique

Answer 55

Rule of law placed in disrepute, formal equality should be upheld. That section 15(1) is a vehicle to discriminate. All individuals are equal but some are more equal than others

Question 56

Contract Law

Answer 56

Civil law, wrong/"breech", injured party to demonstrate breech. Compensation awarded: fixed; imposed by contract; restore party

Question 57

Definition of a Contract

Answer 57

A lawfully binding agreement between two or more parties. Generates rights and obligations that are enforced by the courts. Method of enforcement: an 'action' for financial damages, in some cases the court may compel performance

Question 58

Unilateral and Bilateral Contracts

Answer 58

Bilateral - involves promises by each party (ie, selling your home) Unilateral - contracts involve one party promising to do something in exchange for an act of performance by the other party

Question 59

6 Principles of Underlying a Contract

Answer 59

1. Commercial relationships 2. You mean what you say 3. If it looks like an agreement, it is 4. Interested in intention, not fairness 5. Written contracts carry great weight 6. Little control over the context of most contracts

Question 60

Components of a Contract

Answer 60

Terms - statements, promises, stipulations Exclusion Clauses - exclude or financially limit one party's liability for breech of contract, misrepresentation, or negligence Discharge - how the contractual relationship is ended

Question 61

5 Elements of a Contract to Signal Validity

Answer 61

1. Offer and acceptance 2. Consideration (give and gain) 3. Intention and capacity to understand the agreement 4. Legality (ie, you cannot contact illegal services) 5. Discharge or completion