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Law > Unit 2 > Flashcards

Unit 2 Flashcards

1
Q

Criminal vs Civil Law

A

criminal - vs society, civil - vs individual

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2
Q

Conditions (WHSP)

A

considered wrong, cause harm, serious, punishable

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3
Q

What are the legal rights?

A

If constitutional rights conflict with duties/limits of Criminal Code court references section 1 (reasonable limits).If it limits the behaviour too much, the law is unconstitutional.

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4
Q

Summary offence

A

less serious, max penalty = $2000 and/or 6 months prison. (ex. causing a disturbance, taking vehicle w/out consent, possessing marijuana)

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5
Q

Indictable offence

A

serious (ex. murder, B&E, robbery), no time limit on laying a charge
- accused can either choose a: provincial court judge, judge of the superior court, or higher court w/ a jury

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6
Q

Hybrid offence

A

Crown has the right to proceed summarily or indictment. - - Treated as indictment until a decision is made. Based on previous records, if lesser punishments are appropriate. Max penalty = 2-10 yrs. (ex. of hybrid offences: impaired driving, assault, public mischief under $5000)

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7
Q

Actus and mens rea

A

“Actus rea” wrongful deed

“Mens rea” criminal intention

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8
Q

Elements of an offence

A 
Intention
Criminal state of mind
Recklessness
Criminal negligence
Attempt
Conspiracy
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9
Q

Aiding vs Abetting

A

aid - urging to commit
abet - assisting
Under s. 21(2) of Code, just as guilty of the crime

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10
Q

Accessory after the fact

A

one who knows a crime has been committed and helps the accused hide/escape.

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11
Q

organized crime

A

3 or more ppl w/ a common identity opposing authority. taking advantage of open markets. Under s. 467.11, ppl facilitating gang offense are just as guilty

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12
Q

How do police use a search warrant?

A

They need a search warrant by applying to a judge/justice of peace and show concrete (reasonable/probable) grounds, be objective

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13
Q

Before arrest, police can:

A
  1. issue an appearance notice
  2. arrest the suspect
  3. obtain a search warrant
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14
Q

When do police issue an appearnace notice?

A

When the suspect is seen to not be a further threat + will show at a bail hearing. If more indictable, they arrest them in custody to lay charges, and preserve evidence.

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15
Q

Steps to a Lawful Arrest (5, NACCP)

A
  1. notice (identify himself): “I am __”
  2. advise the accused is under arrest and the pffence charged with “I am arresting
  3. caution 1, right to counsel
  4. caution 2, right to remain silent
  5. physical touching to signify custody
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16
Q

When can police use “as much force as necessary”

A

If the suspect resists, use of more force, however, can result in criminal/civil assault charges on the officer

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17
Q

citizen’s arrest

A

citizen can make an arrest, must surrender to the police asap.

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18
Q

Duties of Police Services

A

Crime prevention, law enforcement, assistance to victims of crime, maintenance of public order, maintenance of public order, emergency response, investigation

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19
Q

Search Laws

A

Officers can enter property w/ a warrant only on the date indicated, areas, and items outlined. A telewarrant (phone, fax, email) used in remote areas.
Exception: Under the ‘Controlled Drugs and Substance Act’, police can search any non-private place w/out a warrant for search of drugs

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20
Q

When can an officer search w/out a warrant?

A

If the arrested is thought to carry a concealed weapon

- arrest w/out warrant only if they are caught in the act OR on reasonable and probable grounds

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21
Q

On being arrested, what must an officer do?

A

tell you of legal aid (paid by taxpayer), and duty counsel (govt lawyer providing advice)

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22
Q

After an arrest, what must be done?

A

Within 24 hrs, a judge decides if the accused remains in custody after the bail hearing (released before trial). If they release, it is based on habeas corpus

Also, the person must be released if the officer thinks they present no further danger and will appear on trial. Others are recorded of charges and fingerprinted,

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23
Q

When is the person detained?

A

Thought to commit offences, be a threat to the victom/witnesses, interferes w/ investigation or not appear.
may have a bail hearing ($ guaranteed to court)

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24
Q

Upon release, what must be done?

A

Person signs an undertaking and/or a recognizance to appear in court.

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25
Q

When awaiting trial, what happens?

A

Accused consults defense lawyer and revel everything connected to the case. If they confess guilty, the lawyer cannot say so otherwise.
Disclosure: All evidence against the accused must be revealed to the defense, the defense attorney need only disclose alibi defese

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26
Q

When can an accused choose to be heard by a judge?

A

Summary: by judge only Indictable: By judge alone, or judge+jury

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27
Q

Plea

A

on the 1st appearance date: guilty or not guilty

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28
Q

Preliminary hearing

A

for serious offences, determining if there’s enough evidence to proceed to trial in higher court

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29
Q

Adversary system

A

Trial based off Crown (society) and Defense (accused). Onus (duty) on crown to prove beyond a reasonable doubt that person commited actus/mens rea

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30
Q

Judge vs justice of peace

A

“Bench” or “higher court”, judges control courtroom in preliminary hearing.trial, justices are in pre-trial

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31
Q

Crown prosecutor

A

Lawyer hired by attorney general so justice is done, (Principle of disclosure: to present all evidence)

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32
Q

Defense counsel

A

rep. accused, ensures rights are protected

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33
Q

Court clerk

A

Reads charges of accused, swears in witnesses, etc

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34
Q

Court Recorder

A

sits at witness box, records evidence, transcript

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35
Q

sheriff

A

crown appointed official, ensures the accused is present, obains jurors, carries out court orders

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36
Q

Stages in a Criminal Trial (12) (Evidence)

A
  1. arraignment - charge and plea
  2. jury selection
  3. crown presents evidence
  4. defense cross-examines witness
  5. defense motions for dismissal
  6. defense presents evidece
  7. crown cross-examines witness
  8. defense may re-examine witnesses
  9. crown rebuttal
  10. defense rebuttal
  11. judges’ charge to jury
  12. jury reaches verdict
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37
Q

How are jurors selected?

A

For serious indictable offences, 12 jurors selected within the area. Sheriff+selection commitee choose out of 75-100 names. Selected are summoned to court with a warrant or are charged if no show. Crown and defense can accept/reject, judge chooses which q’s to ask

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38
Q

Requirements for Jury

A

not to: discuss case w/anyone else, follow media reports, disclose discussion outside of court
Judges may sequester (isolate) the jury, a new trial can be set if there are less than 10 jurors, not paid in short trial

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39
Q

Challenges in jury

A

Both sides want the jury to be responsive to their position, defense has right to first challenge, 3 challenge: jury list, cause, peremptory

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40
Q

Presentation of evidence

A
  1. Arraignment
  2. Crown evidence
  3. Defence Evidence
  4. Witnesses
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41
Q

Types of Evidence: Privileged communications

A

any evidence that cannot be presented in court, crown can’t compel spouse to give evidence, but a spouse can give evidence for defense (exceptions: crimes against the spouse, sex crime against minors) other ex. doctor-patient, clergy-parishioner, layer-client

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42
Q

Similar Fact

A

Accused committed similar offences in the past, judge holds a voir dire where jury leaves and lawyers/judges debate to determine whether or not to admit similar fact evidence

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43
Q

Hearsay

A

not coming from direct, personal experience, or knowledge of a witness. 3rd party who didn’t see actual incident, must be necessary + reliable to be admitted

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44
Q

Opinion

A

Must be from an expert (ex. autopsy)

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45
Q

Character

A

Crown often introduces negative traits + history

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46
Q

Photographs

A

must be accurate representations

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47
Q

Electronic Device and Video Surveillance

A

Warranted, treated as last resort

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48
Q

Polygraph

A

not admissible after R. v. Phillon

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49
Q

Confession

A

Accused admits some charges are true. Excluded if the witness is not informed of their rights beforehand. Statement can be inculpatory (admits to be true) vs. exculpatory (denial, not guilty)

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50
Q

Illegally obtained evidence

A

S. 24 allows the court to consider whether it should use this evidence. would admitting it bring ‘hurt’ to the reputation of the justice system? Factors: severity, how

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51
Q

Judge vs justice of peace

A

“Bench” or “higher court”, judges control courtroom in preliminary hearing.trial, justices are largely in pre-trial, had at least 10 yrs experience

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52
Q

Defense counsel

A

rep accused, ensures rights are protected

53
Q

Stages in a Criminal Trial (12) (AJCDDDCDCDJV)

A
  1. arraignment - charge and plea
  2. jury selection
  3. crown presents evidence
  4. defense cross-examines witness
  5. defense motions for dismissal
  6. defense presents evidece
  7. crown cross-examines witness
  8. defense may re-examine witnesses
  9. crown rebuttal
  10. defense rebuttal
  11. judges’ charge to jury
  12. jury reaches verdict
54
Q

Requirements for Jury

A

-citizens, 18 yrs+, resided in province for min. 1 yr, speak English/French, mentally fit.
not to: discuss case w/anyone else, follow media reports, disclose discussion outside of court
Judges may sequester (isolate) the jury, a new trial can be set if there are less than 10 jurors, not paid in short trial

55
Q

Challenges in jury

A

Neither side want the jury to be responsive to their position, defense has right to first challenge, 3 challenge: jury list - challenge validity
cause - formal objection to a prospective juror
peremptory challenge -without reason

56
Q

Defense evidence

A
  • can ask for directed verdict before evidence called, in the situation that the crown hasn’t proved actus/mens rea (by judge)
  • only a reasonable doubt is needed to present not guilty verdict
57
Q

Privileged communications

A

evidence cannot be presented @ court, crown can’t compel spouse to give evidence, but a spouse can give evidence for defense

58
Q

Similar Fact

A

Accused commited similar offences in the past, judge holds a voir dire

59
Q

How is a verdict reached?

A

Summation and charge to the jury

- jury deliberation: determine facts, determine weight of evidence, concept of reasonable doubt

60
Q

self-incrimination

A

act of implicating oneself in a crime (Crown can’t use testimony as basis for charging the witness in s. 13)

61
Q

criminalize

A

make a behaviour a criminal offence in Criminal Code

62
Q

Decriminalize

A

to make a behaviour that was illegal-punishable only be fines

63
Q

Legalize

A

removing an illegal act from code

64
Q

Prosecute

A

to initiate and carry out a legal action

65
Q

procedural justice

A

fairness in the process that resolves disputes

66
Q

adjournment

A

postponement of court business

67
Q

offences allowing trials by jury

A

murder, treason, alarming her majesty, etc.

68
Q

Witnesses’ roles

A

Crown and defense may pay expert witnesses
May be voluntary, but some are served by a subpoena, ordering them to court.
If fails to come to trial, can be guilty/fined or imprisoned for 90 days. One who gives false evidence (perjury), max penalty of 14 yrs prison
Accounts need to have Credibility: fact or quality of being reliable

69
Q

Intention

A

state of mind - needs to intend to do the crime

70
Q

Criminal State of Mind

A

know what youre doing is illegal

Willful blindness: ignore facts

71
Q

Recklessness

A

acting careless without regard for\ consequences

72
Q

Criminal negligence

A

wanton, a disregard for others safety

motive: reason for committing crime (indirect/circumstantial evidence)

73
Q

Attempt

A

Intent to commit crime without success (actus rea proven when accused takes the first step to commit it)

74
Q

Conspiracy

A

Agreement btwn 2 ppl; all must be serious

75
Q

Upon arrest, what is the duty of a police officer?

A

To search the accused for any potential evidence related to the charge and for item(s) that might have helped them escape/cause harm. Extensive body searches done at the station.

76
Q

Arraignment

A

reading charges to the accused enter pleas. 1st step

77
Q

Crown evidence

A

onus to rebut presumption of innocence,

  • direct evidence: given by an eyewitness
  • circumstantial: indirect via (ex. fingerprints which connect person to gun) examination
78
Q

Defence Evidence

A

May motion for a directed verdict if they believe the Crown has not proven its case (actus and mens rea)
-only a reasonable doubt is needed to present not guilty verdict

79
Q

Homicide

A

Killing person indirectly/directly, culpable (blamable) /inculpable (NCR - ex. accident)

80
Q

Murder

A

First-degree: if it is either: planned/deliberate, victim is a law enforcement agent, death occurs while another crime is committed.
Second-degree: other types
- Min. sentence is life imprisonment, Difference is that someone convicted of 1st can only have parole after 25 years, 2nd only after 10 years.

81
Q

Manslaughter

A

causing death by means of an unlawful act, based on general intent.

82
Q

Assault

A

3 Levels: Level 1 - assault, 2 - assault w/bodily harm, 3 - aggravated assault.
2 Elements: intent to carry out attack and harm, no consent by the victim.

83
Q

Sexual Assault

A

Specific form of assault involving non-consensual sexual conduct. Either injury or no injury at all. max. sentence = 10 yrs.
Level 1 = least severe up to 3 = most

84
Q

Abduction

A

Capturing and carrying off a person by force. max. sentence = 10 yrs

85
Q

Robbery

A

theft involving violence or threats

86
Q

Property Crimes Include?

A 
Arson
Fraud
Possession of Stolen Goods
Various thefts
Break and Enter
87
Q

Arson

A

Intentionally causing damage to property by fire

88
Q

Theft

A

Taking someone’s property without consent

89
Q

Identity Theft

A

using someone’s personal info w/out consent

90
Q

Break and Enter

A

entering property without permission w/intent to commit an indictable offense

91
Q

Possession of Stolen Goods

A

Anyone found guilty of possessing stolen goods

- worth $5000 or more sentenced up to 10 yrs. If less, max is 2 yrs. If treated as summary, up to 6 months/or $2000

92
Q

Fraud

A

Deceit to cause a loss of property. False pretenses are presenting untruths to induce the victim to act upon it (ex. making false statements to obtain credit)

93
Q

Firearms

A

gun owners must be registered and licensed

94
Q

Street racing

A

Illegal auto racing; high speeds in reckless manners

95
Q

prostitution

A

sexual activity in exchange for money

96
Q

soliciting

A

communicating for the purpose of prostitution

97
Q

obscenity

A

word, images, or actions that are offensive to public morality

98
Q

terrorism

A

unlawful use of force/violence to futrther certain political or social objectives

99
Q

criminal harassment

A

stalking = indictable up to 10 yrs

100
Q

drugs - Schedules?

A

Schedule 1 = most dangerous to 4 = controlled, but therapeutic, can be charged with possession

101
Q

trafficking

A

sell, administer, give, etc. a controlled substance

102
Q

impaired driving

A

mens rea= intent to assume care/control of vehicle while impaired, lood alcohol level over 80
actus reus= assuming care or control
- Police must have grounds to search an automobile.

103
Q

Criminal Defences

A

Alibi Defense
Automatism
Intoxication
Defences that provide a reason = battered woman syndrome, self-defence, necessity, duress
Other = Ignorance of Law + Mistake of the Fact, Entrapment, Double Jeopardy, Provocation

104
Q

Alibi Defence (3 Requirements)

A
  • only thing the Defence must disclose to Crown
    Includes
    1. statement indicating the accused was not present at the location of the crime when committed
    2. explanation of their whereabouts
    3. Names of any witnesses to alibi
105
Q

Automatism

A

Non-insane: may be result of stroke, hypoglycaemia, sleepwalking, or trauma. If based on expert –> acquittal
Insane: NCR, disease of the mind

106
Q

Intoxication

A

Accused must show he/she did not have required intent (mens rea). Someone who was unable to form specific intent cannot be guilty of aggravated assault, but general.
Needs to be proved with actus reus.
- Carter Defence: evidence to the contrary disputing the evidence to drinking while driving

107
Q

Battered Woman Syndrome

A

condition caused by sever domestic abuse

108
Q

Self-Defence

A

only use “necessary” and “reasonable” force to defend yourself. can use deadly force

109
Q

Necessity

A

Forced to act because of certain danger. ex. driving past the speed limit to take someone to emergency service

110
Q

Duress

A

accused commits a crime in response to external pressure. held against his/her will(threatened at gunpoint)

111
Q

Ignorance of Law + Mistake of Fact

A

“ignorance of law” not accepted. Mistake of the fact can be accepted if it prevents the accused from having mens rea. Mistake must be genuine(ex. using counterfeit money unknowingly or buying a stolen bike you didn’t know was stolen)

112
Q

Entrapment

A

police coerce someone to commit a crime

113
Q

Double Jeopardy

A

being tried for the same offence twice, Stated under section 11 that person can’t be charged and acquitted of same offence
- Autrefois acquit vs. autrefois convict

114
Q

Provocation

A

wrongful act so significant that it causes person to lose self-control. must be done in the “heat of passion”

115
Q

victim impact statement

A

statement made by victim describing the effect o the offence on his/her life

116
Q

Types of Sentences

A 
Absolute/Conditional Discharge
Suspended Sentence and Probation
Conditional Sentence
Suspension of Privilege
Peace Bond
Restitution or compensation
Community Service Order
Deportation
Fines
Imprisonment
117
Q

Absolute/Conditional Discharge

A

Sentence <4 yrs. absolute = effective immediately

conditional = can avoid record of conviction if follows certain conditions

118
Q

Suspended Sentence and Probation

A

Punishment not carried out as long as offender complies. Offender still has record of conviction nd can be place on probation for up to 3 yrs. Cannot be given when there is mandatory min. sentence (ex. B&E with gun = min. 4 yrs, therefore no suspension)

119
Q

Conditional Sentence

A

<2 yrs and crime carries no min. sentence, serve time in community

120
Q

Suspension of Privilege

A

removes a privilege , like driving

121
Q

Peace Bond

A

court order requiring person to keep the peace and be on good behavior for 12 months. (used in assault cases)

122
Q

Restitution or compensation

A

given to make amends for a loss, repay the victim through cash or work.

123
Q

Community service order

A

specific work in community

124
Q

Deportation

A

non-citizens can be deported. Extradited (returned) to country of offence

125
Q

Fines

A

Summary = up to $2000 and/or prison
Indictable = no max fine
- may ask for up to 14 days to pay fine. fine option program to work debt off

126
Q

Imprisonment

A

Summary = up to 6 months
Indictable = 2 yrs to life
- Pretrial custody = 2x the sentence served
30 days2 yrs: federal

127
Q

Sentencing: concurrent, consecutive, intermittent

A

Concurrent: serve both penalties at same time
Consecutive: served one after another
Intermittent: <90 days - served on weekends/nights

128
Q

Principle of totality

A

someone convicted of several violations of same offense does not receive overly long prison term

129
Q

indeterminate sentence

A

for dangerous and long-term offenders

Law (5 decks)

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