Midterm 1 Flashcards

Question

What is sexual assault as defined in the CC?

Answer 1

An assault committed in circumstances of a sexual nature.

Answer 2

part of the body being touched, nature of contact, situation where it happened, words and gestures accompanying the touching and any other circumstances surrounding the assault

Answer 3

That the accused knowingly committed an assault

Answer 4

Actus Reus - touching, of a sexual nature, in the absence of consent Mens Rea - Intention to apply force, knowledge of or being reckless/blind to lack of consent, not necessary to prove accused was seeking gratification

Answer 5

Police options: release on promise to appear and/or undertaking OR Held for bail hearing in court next business day

Answer 6

(All offences to go provincial court for arraignment - reading of charges to accused) Most bail hearing in Provincial court unless s.469 (murder) or others then go to Supreme

Answer 7

Information (document outlining details to alleged offences) which starts criminal court process Details include - Name/DOB of accused, Date/location of offence, alleged offence(s) Document is then filed with the court

Answer 8

Summary/indictable and choice of court for trial

Answer 9

Provincial Court, Supreme Court NS, Court of Appeal and Supreme Court of Canada

Answer 10

Busiest court, summary offences and indictable offences (when accused elects); provinical offences, deals with most aspects of bail, preliminary inquiry

Answer 11

Indictable offences where accused elects and s.469 offences; summary conviction appeals, only court hthat has jury trials

Answer 12

Appeals decisions of Supreme Court (NS)

Answer 13

Appeals decisions of court of appeal

Answer 14

Criminal Code for min/max sentences and also by case law that establishes sentencing ranges

Answer 15

Presumption of Innocence, Burden of Proof on the Crown, Proof of guilt beyond a reasonable doubt, proof is made during a fair and public hearing

Answer 16

Cannot convict based on character but rather facts or evidence, accused doesn't need to reply to charge or provide police with statement/explanation. Assumes innocence until proven guilty beyond a reasonable doubt

Answer 17

Burden is always on Crown, legal burden - requires Crown to prove guilt beyond a reasonable doubt. Evidentiary burden - some evidence be presented on an issue

Answer 18

Crown must prove every element of the crime beyond a reasonable doubt, not 'likely' or 'probably guilty', if reasonable doubt jury must acquit, jury must be unanimous, dont need reasons just decision.

Answer 19

Need to start trial with 12, deliberations max 12/min 9

Answer 20

1. Justice must be done and be seen to be done 2. accused entitled to unbiased and impartial adjudicator 3. members of the permitted to attend trials 4. police must conduct investigations and with accused's right in mind, 5. crown must provide a full and timely discourse 6. scrutiny of the judicial process by public

Answer 21

Independent in their decision making from the executive and legislative branches of government, well-paid to protect against undue influence

Answer 22

Appointed after spending at least 5 years practicing law and screen by judicial screening committee. Committee is comprised of current judges, lawyers, civilian members, and police rep. - both provincial and federal committee. When candidates pass screening process - recommended to Ministry of Justice.

Answer 23

Both common law and statutory law

Answer 24

NS Provincial Court, and NS supreme court (Judge alone or Judge and Jury)

Answer 25

In provincial court, not available unless max penalty of 14 years or more, streamlined witness list, discovery (provides accused opportunity to hear evidence in advance of trial), evidence taken at face value

Answer 26

Only for indictable offences when accused elects for jury (except in 469 offence where it's required) Comprised of 12-14 jurors

Answer 27

1. Must be citizen, residence in province and age of majority 2. Cannot be a judge, law student or any employee of justice. 3. Can't have a criminal conviction where a sentence of 2+ years was served 4. can apply for exclusion based on hardship (will loose job, family or health issues), 5. jurors are paid $40/day + travel

Answer 28

Sheriff summons jurors names on jury list to appear on first day of jury session, attendance is taken. Jurors are then either excluded, denied, or put aside, can also advise of bias that would impact his/her impartiality. Cards with remaining names randomly selected from box. Challenge for cause allows Crown and Defense to question prospective jurors about bias in hearing case based on race, media exposure, personal connection, etc. If jury pool exhausted, Sheriff can pluck ‘talesmen’ off the street. This process continues until jury is fully selected. Once jury is selected, trial begins with Crown’s opening address.

Answer 29

1. to ‘find facts’ based on evidence they accept 2. Using those facts, the jury then decides whether the Crown has proven the case against the accused beyond a reasonable doubt 3. In determining facts, jurors should listen, see, and appreciate the evidence. May take notes.

Answer 30

1. Jurors are not entitled to communicate with anyone about case 2. Nothing can be disclosed about what happens in jury room. This allows jurors to be frank and open about their views of the case when among jury members. 3. If interference with jury during trial, judge has direction to discharge jury and order new trial with new jury (ex. Improper communication, publishing of inadmissible evidence, intimidation in jury room etc.)

Answer 31

begins after all evidence heard, addresses of counsel, and instruction by judge. Protected in their jury room during deliberations by Sheriff who stands outside room. Methods upon which jury reaches decision is not disclosable Juries are entitled to take their time in deliberations. May review evidence. Questions may be asked by jury foreman to the judge on note in presence of accused/Crown Judge will restrict hours of deliberations each day to protect against exhaustion. Verdict must be unanimous, whether guilty or not guilty. If not unanimous – ‘hung jury’

Answer 32

Voluntary agreement of the victim to engage in the sexual activity in question: 1. Must be given for each and every sexual act 2. Must be given at time of the sexual act (e.g. no advanced consent) 3. Cannot be “implied” 4. Can be revoked at any time, ongoing 5. Must be given by someone who is capable of consenting

Answer 33

Crown must prove that victim voluntarily agreed to engage in the sexual acts in question There are circumstances where consent is ineffective or vitiated if the victim submits or does not resist due to application of force, threats or fear of force, fraud, and exercise of authority.

Answer 34

Appreciating the nature and quality of the sexual activity Knowledge of the identity of the person engaging in sexual activity Understanding she could agree or decline to engage in the sexual activity.

Answer 35

1. The agreement is expressed by someone other than the victim 2. The victim is incapable of consenting 3. Abuse of position of trust, power, or authority 4. The victim expresses a lack of agreement 5. The victim expresses a lack of agreement to continue

Answer 36

Children under 16 CANNOT consent to sexual acts with an adult (age of consent was 14 until 2008 16- & 17-year-olds CANNOT consent if: Sexual partner is in a position of trust or authority (teacher/coach/etc) Young person is dependent on their sexual partner (stepparent) Relationship between young person and their sexual partner is exploitive.

Answer 37

14- or 15-year-old can consent to sexual activity if partner is less than 5 years older 12 or 13 years old can consent to sexual activity if partner is less than 2 years older *these exceptions do not apply where there is a relationship of trust, authority, dependency, or any other exploitation of the young person.*

Answer 38

Accused cannot rely on HBMB where: The accused belief arose from their: Self-induced intoxication; or Recklessness or willful blindness; or They did not take all reasonable steps in the circumstances to ascertain if the victim was consenting Mistake of law is no defence Example: a belief that silence, passivity, or ambiguous conduct constitutes consent Example: a belief that age of consent was 14 years old.

Answer 39

Not taken where the accused relies on a lack of resistance from victim (victim’s failure to resist is not a defence) Must be some words or conduct that the accused can say that he took to establish how he attempted to find out if victim was consenting

Answer 40

Every person commits an offence who in committing a sexual assault 1. Carries, uses, or threatens to use a weapon or an imitation of a weapon. 2. Threatens to cause bodily harm to person other than the complainant. 3. Causes bodily harm to the complainant (chokes, suffocates); 4. Is a party to the offence with any other person. This offence requires a sexual assault in circumstances where the victim suffers bodily harm, chokes/strangles the victim, or the accused uses a weapon during the commission of the offence. Consent is not a defence to sexual assault causing bodily harm A person cannot consent to bodily harm

Answer 41

Everyone commits an aggravated sexual assault who commits a sexual assault, wounds, maims, disfigures, or endangers the life of the complainant. His offences requires a sexual assault in circumstances (again, consent is no defence to the offence of aggravated sexual assault) “wounds” – breaking of the skin “Maims” – Injured to the extent that he/she is less capable of fighting back “Disfigures” - more than a temporary maiming of the figure or appearance “Endangers the life” – does not require bodily harm but must endanger the victim’s life and not merely have the potential to endanger life.

Answer 42

In most sexual assault cases, the material issues are: Where there was contact of a sexual nature Identify the perpetrator Whether the victim consented to the sexual touching Including whether she had capacity to do so Whether the accused held an honest but mistaken belief in consent

Answer 43

Its impermissible for the defence to introduce “prior sexual activity” evidence of the victim in a sexual assault trial that engages rape myths. The evidence cannot be used to try to establish that: The victim is more likely to have consented to the sexual activity in question ; or The victim is less worthy of belief

Answer 44

No adverse inference can be drawn by the judge or jury because the victim delayed disclosure of the sexual assault (s. 275 CC) Research has provided that victims often delay discourse for very legitimate reason – i.e., fear, relationship dynamic, dependence on victim, etc. Many “historic” sexual assault cases are prosecuted years after the fact No limitation period for indictable offences.

Answer 45

Sexual reputation evidence is not admissible to challenge the victim’s credibility (s. 277) Example: because the victim had sex w/the accused on prior occasions they are more likely to have consented during the event in question.

Answer 46

Several sexual offences were repealed from the CC; however, individual can still be charged w/ these appealed sections so long as the offence date pre-dated the amendment. (gross indecency, indecent assault on a female, etc.)

Answer 47

Hybrid - Every person who, for a sexual purposes, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the person under the age of 16 years old. Indictable offence – max 14 years and minimum 1 year Summary offence - max 2 years less a day, minimum 90 days

Answer 48

Accused would have to have taken “all reasonable steps” to ascertain the age of the victim Would have to articulate the reasons why he believed the victim was “of age” If there was no consent (in the sense of two adults), this defence would be in applicable.

Answer 49

Hybrid - Every person who commits an offence who is in a position of trust or authority towards a younger person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with ta young person that is exploitative of the young person and who commits invitation to sexual touching or sexual interference. Indictable- Max 14 years and minimum 1 years Summary – max 2 years less a day and minimum 90 days Factors to Consider: Age of young person Age difference between offender and victim Evolution of relationship Degree of control/influence over young person

Answer 50

Accessing child pornography, Possession of Child Pornography, Making and Distribution of Child Pornography

Answer 51

Photo, film, video, or visual representation: That shows a person who is or is depicted as being under the age of 18 years old and is engaged in or depicted as engaged in sexually explicit activity; or The dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years old. Written material, visual representation or audio recording that advocated or counsels’ sexual activity with a person under 18 years old. Written material whose dominant characteristic is the description, for a sexual purpose of sexual activity w/ a person under 18 years old.

Answer 52

Hybrid Indictable – max 10 years and minimum 1 year Summary – max 2 years less a day, minimum 6 months

Answer 53

Hybrid Indictable – Max 10 years, minimum 1 year Summary – max 2 years less a day, minimum 6 months.

Answer 54

Indictable Max 14 years, minimum 1 year

Answer 55

In a case where the complainant and accused testify about certain events, the Court must apply this legal test to determine whether the Crown has proven their case beyond a reasonable doubt. First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Answer 56

Historically, children were viewed as being inherently unreliable witnesses. Judges were obliged to caution juries about the inherent frailties of children’s evidence. Cases would require corroboration if a child was alleging abuse. This is no longer the case! Today, children frequently testify as witnesses in cases of sexual abuse and they are no longer regarded as inherently unreliable witnesses.

Answer 57

Credibility relates to a witness’ honesty or truthfulness. Reliability relates to a witness’ accuracy in relating their evidence.

Answer 58

Courts should approach the evidence of a child in a common sense manner and courts should not impose the same standard on children as adults A child must be competent to testify before giving evidence Children under the age of 14 are presumed to have the capacity to testify. A hearing is only if capacity is being challenged, party challenging witness must prove incapacity.

Answer 59

As a general rule, the Crown cannot introduce the accused’s bad character evidence to draw an inference that he/she is more likely to have committed the offence charged This is called propensity reasoning and it is impermissible in a criminal trial if the accused puts their character in issue then it opens the door for the Crown to introduce evidence of the accused’s bad character By the same token, the prior sexual history of the complainant cannot be used to advance an argument based rape myths

Answer 60

A cross-examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction It is a rule of fairness to the witness (“anti-ambush rule”) If the accused violates this rule, the possible remedies include: The judge placing less weight on the evidence that was not put to the witness Consider the lack of cross-examination of the witness in assessing the credibility of the accused Permit the recall of the witness to give them an opportunity to respond to the apparent inconsistencies in their evidence

Answer 61

When physical evidence exists, it has the potential to be highly incriminating The legal authority to search and seize physical evidence will depend on the circumstances: Search incident to arrest Consent search Search pursuant to a warrant Discarded items

Answer 62

The common law recognizes a police officer’s power to search a person incident to that person’s arrest. It has been established that this search power may include the authority to fingerprint or conduct a “frisk” search of the accused, to search a car driven by the accused, and to search a backpack. It does entitle police to conduct more invasive searches of the person with a view to obtaining bodily samples as evidence (i.e. cell phone data, blood, hair, penile swab etc.). These types of searches would require a warrant.

Answer 63

Authority to conduct a search can also be based on a person’s consent When an accused provides consent to a search or seizure without a warrant, strict criteria are in place to ensure that the consent is voluntary Crown must demonstrate that the accused decide to waive his/her constitutional right with full knowledge of the existence of the right and an appreciation of the consequence of waiving that right.

Answer 64

Judicial authorization to conduct a search at a place and seize a thing(s) It is often the case that a search warrant is obtained to search and seize evidence from the suspect’s residence The warrant to search a residence can extend to the seizure of computers or cell phones, however specific prior authorization is required to search the data contained within the devices

Answer 65

High expectation of privacy in DNA evidence (i.e. blood, hair follicles, dental impressions etc.) The police may also obtain a sample of the accused’s bodily fluids by way of that person’s consent Voluntary consent requires that the accused be made aware of the right to refuse consent, the potential consequences of giving DNA, and the uses that can be made of the sample. The accused’s intoxication can vitiate consent to give a sample of bodily fluids

Answer 66

A seizure by police may also be legal when the accused has abandoned his/her privacy interest in the item seized Abandonment is a question of fact Courts will look to the conduct of the accused and not on the conduct of the police. Examples: Garbage placed outside home in the usual spot for collection was found to be abandoned When an accused attempts to flee police, any clothing that is left behind, such as a jacket, will be considered abandoned Discarded chewing gum

Answer 67

The privacy interests implicated in the search of a computer or cell phone differ from those interests implicated in the search of other places These places are able to store a large amount of data concerning the user’s interests, habits, and identity Prior judicial authorization is required to search the data contained within a computer seized The Supreme Court of Canada has found a reasonable expectation of privacy in subscriber information (i.e. name and location attached to a computer’s IP address) and the police will need a warrant (a production order) to retrieve this information from an Internet service provider

Answer 68

Sweeping changes to the Criminal Code, including the law of bail, jury selection, the classification of offences, intimate partner violence, removed provisions that were ruled unconstitutional by the SCC, and restricted the availability of preliminary inquiries.

Answer 69

Reverse onus for those who commit a violent offence involving an intimate partner, if they have a prior conviction for violence against an intimate partner Requires courts to consider prior intimate partner violence convictions when determining whether to release the accused or impose bail conditions

Answer 70

Clarifies that “strangulation” constitutes an elevated form of assault and a more serious form of sexual assault (see: s. 272(1(c.1)) Before amendment, this specific pathway to liability did not exist. Now, if an accused “chokes, suffocates or strangles the complainant”, the offence of “sexual assault bodily harm” is made out, which attracts a potential higher penalty than “sexual assault”.

Answer 71

Restricts preliminary inquiries to offences liable to a maximum 14 years or more of imprisonment This greatly reduces the number of preliminary inquiries, while maintaining their availability for more serious offences This frees up court time in provincial courts This alleviates the burden on some witnesses and victims by preventing them from having to testify twice in those cases

Answer 72

Cleans up Criminal Code provisions that have previously been ruled as unconstitutional Anal intercourse Abortion Vagrancy Keeping a bawdy house

Answer 73

1. Lack of confidence in CJS 2. Sense of shame or self blame 3. Fear of not being believed 4. Fear of facing the perpetrator 5. Potential repercussions arising from going to the police 6. Lack of understanding that what happened was an offence or that it was a minor event 7. Concern about consequence to the perpetrator

Answer 74

There are various provisions in the Criminal Code that provides protections for witnesses testifying in a criminal trial. The testimonial aids are aimed at promoting the candid testimony of the victim, particulary providing an environment where they do not have to face their attacker in open court. Examples: Exclusion of the public Screen CCTV Support Person Application to have counsel cross-examine complainant

Answer 75

In determining whether it is appropriate to exclude the public, the Court shall consider: 1. Society’s interest in encouraging the reporting of offences and the participation of victims and witnesses. 2. The ability of the witness to give a full and candid account Important to have 'fair and public trial' - Sometimes the Court may request that members of the public leave the court during particularly sensitive evidence to avoid causing undue distress to the complainant.

Answer 76

Judges have the authority to order that a screen be placed in front of the witness, which blocks the witness’ view of the accused or that the witness testify from a remote location via CCTV. If the witness is under 18 years old or has a mental or physical disability which makes communicating their evidence difficult, the judge shall permit the witness to testify behind a screen or via CCTV - unless the order would interfere with the proper administration of justice.

Answer 77

The legal test is the same as for a screen or CCTV This allows a person to sit next to the witness as they testify The support person is not permitted to be a witness in the trial and cannot communicate with the witness as they testify (either verbally or non-verbally) In some jurisdictions, support dogs have been permitted to sit next to the witness as they testify, particularly for child witnesses

Answer 78

Testimonial Aid If accused is self-represented, the Crown or witness can apply to the Court to have legal counsel appointed for the sole purpose of cross-examining the complainant and/or any witness under 18 years old This avoids intimidation/retaliation during cross-examination and unnecessary interference with the candidness of the witness’ testimony The legal test is contained in Section 486.3 of the Criminal Code, which is very similar to the test for a screen or CCTV

Answer 79

An order directing that any information that could identify the victim or a witness shall not be published. The judge shall order the publication ban if the Crown, victim or witness apply. The Court is obligated to inform the victim(s) and any witness under 18 years old of their right to apply for a publication ban - Information that is banned from publication could include the name of the victim, the name of the accused, school, place of employment etc. if that information would tend to identify the victim.

Answer 80

To have access to personal records of the victim, the accused must make an application to the trial judge to establish that the records are likely relevant to an issue at trial. This requirement gives consideration to the victims privacy interests and the accused’s fair trial rights. Some examples of these records include (contain personal information for which there is a reasonable expectation of privacy): Health records Therapeutic records school records

Answer 81

Expand the “rape shield” provision to include communications of a sexual nature or communications for a sexual purpose. Now evidence related to the victim’s communications of a sexual nature or a sexual purpose falls into the category of ‘prior sexual history’ and can’t be used to support “twin myth”.

Answer 82

provides victims with the right to access information about the offender who harmed them at the investigative stage, court stage, and corrections stage. This legislation acknowledges the rights and integral role of victims in the CJS Every victim has the right, on request, to information about 1. The status and outcome of the investigation into the offence 2. The location of proceedings in relatin to the offence, when they will take place and their progress and outcome Victims have the right: to have their privacy considered by the appropriate authorities in the CJS to have their identity protected to request testimonial aids when testifying in court to present a victim impact statement at sentencing to have the court consider making a restitution order against the offender.

Answer 83

Use language that is relevant to the person’s age and abilities Clarify terms the people use (kids may label body parts differently than adults) There is nothing mutual or consensual about sexual or physical abuse For example: "kissing” - “forced his mouth on hers” “oral sex” - “forced his penis into his mouth”

Answer 84

Trauma-informed questions are designed to create a safe and supportive environment for individuals who may have experienced trauma. These questions recognize the potential impact of trauma on a person's well-being and aim to foster trust, respect, and collaboration. When interacting with someone who has experienced trauma, it's crucial to approach them with sensitivity and avoid triggering or retraumatizing them

Answer 85

Barton was a case first degree murder allegation and the death of the victim was due to a sexual act - the SCC considered how the trial was wrong and how the jury was informed. And how lack of attention to victim, stereotypes, and myths - impacts verdicts. In this trial language used was "that native girl". Barton convicted of manslaughter.

Answer 86

Myths : real victim would cry out, fight back, would avoid perpetrator, strangers perpetrator sexual violence, they would tell someone immediately after. Reality : theres no right way for victim to fight back, post-conduct contact happens for a variety of reasons, majority of SV is perpetrated by someone the victim knows. Research shows majority of victims don't report right away

Answer 87

Theres no right response, theres no right or wrong way for a victim behave after an assault.

Answer 88

Agreement by someone other than victim, complainant is unconscious, complainant is incapable of consenting, consent induced by abuse/power of authority, expressed by words or conduct a lack of agreement

Answer 89

Victim doesn't have to say no, silence passivity or ambiguous contact, NO broad advance consent, cannot be implied by virtue of relationship

Answer 90

The individual searched to have been lawfully arrested The search to be truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest (i.e. “pat down search” for officer safety) The search is to be conducted reasonably

Answer 91

No corroborating evidence is required – but sometimes it does exist which helps the prosecution the fact that they got a SANE exam done corroborates the complainant R v Mugabo 2017 ONCA 323 Outward expressions of emotions are indeed corroborative evidence that the offence occurred.

Answer 92

The age of the witness The witness’ mental or physical disabilities, if any The nature of the offence The nature of the relationship between the witness and the accused Whether the witness needs the order for their security or to protect them from intimidation or retaliation

Midterm 1 Flashcards

(117 cards)