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Flashcards in Unit 2 Deck (129):
1

Criminal vs Civil Law

criminal - vs society, civil - vs individual

2

Conditions (WHSP)

considered wrong, cause harm, serious, punishable

3

What are the legal rights?

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.

4

Summary offence

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

5

Indictable offence

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

6

Hybrid offence

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)

7

Actus and mens rea

"Actus rea" wrongful deed
"Mens rea" criminal intention

8

Elements of an offence

Intention
Criminal state of mind
Recklessness
Criminal negligence
Attempt
Conspiracy

9

Aiding vs Abetting

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

10

Accessory after the fact

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

11

organized crime

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

12

How do police use a search warrant?

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

13

Before arrest, police can:

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

14

When do police issue an appearnace notice?

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.

15

Steps to a Lawful Arrest (5, NACCP)

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

16

When can police use "as much force as necessary"

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

17

citizen's arrest

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

18

Duties of Police Services

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

19

Search Laws

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

20

When can an officer search w/out a warrant?

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

21

On being arrested, what must an officer do?

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

22

After an arrest, what must be done?

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,

23

When is the person detained?

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)

24

Upon release, what must be done?

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

25

When awaiting trial, what happens?

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

26

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

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

27

Plea

on the 1st appearance date: guilty or not guilty

28

Preliminary hearing

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

29

Adversary system

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

30

Judge vs justice of peace

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

31

Crown prosecutor

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

32

Defense counsel

rep. accused, ensures rights are protected

33

Court clerk

Reads charges of accused, swears in witnesses, etc

34

Court Recorder

sits at witness box, records evidence, transcript

35

sheriff

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

36

Stages in a Criminal Trial (12) (Evidence)

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

37

How are jurors selected?

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

38

Requirements for Jury

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

39

Challenges in jury

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

40

Presentation of evidence

1. Arraignment
2. Crown evidence
3. Defence Evidence
4. Witnesses

41

Types of Evidence: Privileged communications

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

42

Similar Fact

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

43

Hearsay

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

44

Opinion

Must be from an expert (ex. autopsy)

45

Character

Crown often introduces negative traits + history

46

Photographs

must be accurate representations

47

Electronic Device and Video Surveillance

Warranted, treated as last resort

48

Polygraph

not admissible after R. v. Phillon

49

Confession

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)

50

Illegally obtained evidence

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

51

Judge vs justice of peace

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

52

Defense counsel

rep accused, ensures rights are protected

53

Stages in a Criminal Trial (12) (AJCDDDCDCDJV)

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

Requirements for Jury

-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

Challenges in jury

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

Defense evidence

-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

Privileged communications

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

58

Similar Fact

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

59

How is a verdict reached?

Summation and charge to the jury
- jury deliberation: determine facts, determine weight of evidence, concept of reasonable doubt

60

self-incrimination

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

61

criminalize

make a behaviour a criminal offence in Criminal Code

62

Decriminalize

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

63

Legalize

removing an illegal act from code

64

Prosecute

to initiate and carry out a legal action

65

procedural justice

fairness in the process that resolves disputes

66

adjournment

postponement of court business

67

offences allowing trials by jury

murder, treason, alarming her majesty, etc.

68

Witnesses' roles

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

Intention

state of mind - needs to intend to do the crime

70

Criminal State of Mind

know what youre doing is illegal
Willful blindness: ignore facts

71

Recklessness

acting careless without regard for\ consequences

72

Criminal negligence

wanton, a disregard for others safety
motive: reason for committing crime (indirect/circumstantial evidence)

73

Attempt

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

74

Conspiracy

Agreement btwn 2 ppl; all must be serious

75

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

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

Arraignment

reading charges to the accused enter pleas. 1st step

77

Crown evidence

onus to rebut presumption of innocence,
- direct evidence: given by an eyewitness
- circumstantial: indirect via (ex. fingerprints which connect person to gun) examination

78

Defence Evidence

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

Homicide

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

80

Murder

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

Manslaughter

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

82

Assault

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

Sexual Assault

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

Abduction

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

85

Robbery

theft involving violence or threats

86

Property Crimes Include?

Arson
Fraud
Possession of Stolen Goods
Various thefts
Break and Enter

87

Arson

Intentionally causing damage to property by fire

88

Theft

Taking someone's property without consent

89

Identity Theft

using someone's personal info w/out consent

90

Break and Enter

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

91

Possession of Stolen Goods

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

Fraud

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

Firearms

gun owners must be registered and licensed

94

Street racing

Illegal auto racing; high speeds in reckless manners

95

prostitution

sexual activity in exchange for money

96

soliciting

communicating for the purpose of prostitution

97

obscenity

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

98

terrorism

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

99

criminal harassment

stalking = indictable up to 10 yrs

100

drugs - Schedules?

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

101

trafficking

sell, administer, give, etc. a controlled substance

102

impaired driving

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

Criminal Defences

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

Alibi Defence (3 Requirements)

- 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

Automatism

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

106

Intoxication

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

Battered Woman Syndrome

condition caused by sever domestic abuse

108

Self-Defence

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

109

Necessity

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

110

Duress

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

111

Ignorance of Law + Mistake of Fact

"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

Entrapment

police coerce someone to commit a crime

113

Double Jeopardy

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

Provocation

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

115

victim impact statement

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

116

Types of Sentences

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

117

Absolute/Conditional Discharge

Sentence <4 yrs. absolute = effective immediately
conditional = can avoid record of conviction if follows certain conditions

118

Suspended Sentence and Probation

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

Conditional Sentence

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

120

Suspension of Privilege

removes a privilege , like driving

121

Peace Bond

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

122

Restitution or compensation

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

123

Community service order

specific work in community

124

Deportation

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

125

Fines

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

Imprisonment

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

127

Sentencing: concurrent, consecutive, intermittent

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

128

Principle of totality

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

129

indeterminate sentence

for dangerous and long-term offenders