Grade 11 Law Exam. The Canadian Constitution Trudeau brought it home with support from all provinces and territories except for Quebec

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1 Grade 11 Law Exam The Canadian Constitution Trudeau brought it home with support from all provinces and territories except for Quebec The Statute of Westminster The Person's Case Privy Council Canadian Bill of Rights Law What are laws for? What do laws do? Rule Hammurabi's Code British statute giving Canada control over its foreign affairs Five Alberta women asked parliament to define the term "person" from the BNA Act. They wanted women to be included in senate. The supreme Court of Canada decided only men qualified as people, women appealed decision to the Judicial Committee of the Privy Council in Britain in 1929, they overruled the Supreme Court's decision and qualified women as people. Canada's highest court in while under Britain Prime Minister Diefenbaker set down in legislation civil rights and freedoms Canadians enjoyed under common law. Special rule needed to regulate and control the behaviours of members in society. Made and enforced by the government. 1. Keep and promote order 2. Maintain social control 3. Protect public order 4. Resolve Disputes 5. Protects certainty and durability 6. Facilitates change 7. Brings out justice 8. Outlines what the government can or cannot do Ordinary parts of everyday life. Can be made by institutions. Consequences for breaking a rule versus breaking a law is less harsh. 3,800 years old. Record of 300 laws written in stone columns and arranged into understandable headings for the public such as, family, criminal, labour, property, trade, and business. Page 1

2 Mosaic Law Roman Law Greek Law Magna Carta Habeas Corpus Rule of Law Divine Right of Kings Trial by Ordeal Feudalism Common Law Precedent Case Law Statute Law Substantive Law First five books of the old testament. Moses climbed Mount Sinai to receive the 10 commandants. Hold central position in Jewish and Christian faiths like killing, adultery, bearing false witness. Emphasised equality and justice for all. French Civil Code and Napoleonic Code was based on Roman Law Democracy based on social standing. Citizen involvement like voting, jury duty, women still had little standing. Jury system Meant "Great Charter". Recognized rule of law. Equality became important. No ruler could restrict freedoms without reason. Peoples legal rights couldn't be changed without consent. Guaranteed Habeas Corpus. "You must have the body" meaning, there must be grounds for detention. Any person detained without explanation can appear before court in reasonable time. Society is governed by law. Equal to everyone. No one is above the law, which relates to Canada because disputes must be settled peacefully. Government cannot change law. Must prevent violence. Kings get their authority from God, not their subjects. Rebellion is the worst political crime. Ancient Judicial practice where guilt or innocence was determined through painful experiences. Life or death where survival meant innocence. Political, social, and economic system from 9th - 15th centaury Europe. Based on the relationship between lord and servant. It allowed lords to judge their own cases and punishments. Law that is common to an entire population. Legal decision serving as an example in similar cases similar facts in similar decisions. Introduces certainty. Law as established by the outcome of former cases. Laws passed by the government Laws that list the rights ad duties of people in society divided into Page 2

3 pubic and private law. Public Law Criminal Law Constitutional Law Administrative Law Private Law Family Law Contract Law Tort Law Property Law Labour Law Procedural Law Federal Government's Power Provincial Government's Power Municipal Government's Power British North American Act of 1867 (BNA) Canadian Charter of Rights and Freedoms Divided into Criminal, Constitutional, and Administrative law. Relationship between government and people. Defines crimes and penalties. Protect society Constitutional Act of Laws set structure of government and the division of powers among them. Relationship between citizens and the government Legal relationship between citizens and organizations. Manage behaviours and pay damages. i's organized into family, contract, tort, property, and labor law. Spouses, children, and parents. Legally binding documents Deals with wrongs one person commits against another. Controls use, enjoyment, and rental of property Relationship between employee and employer. Steps in protecting rights under substantive law. How to follow and implement laws. Can veto provincial power in a national crisis. Criminal law, unemployment, insurance, banking, currency, coinage, federal penitentiaries, marriage, divorce, postal services, and aboriginal rights and lands. Property and civil rights, marriage, police, provincial courts, highways and roads, provincial jails, and medical centres. sewage and garbage, roads, sideways, lawns, parks, streetlights, pools, public transport, fire, police, and libraries. Outlined powers of Canadian government in laws and levels of government. April 17th, Ontario Human Rights March 29th, Page 3

4 Code Reasonable Limits Clause Demonstrably Justified Actus Reus Mens Rea Intent General Intent Specific Intent Knowledge Motive Recklessness Summary Conviction Offences Indictable Offences Hybrid Offences Due Diligence Strict Liability Offences Section One of the Charter. States that The Canadian Charter's Rights and Freedoms are not absolute and can be limited with justification. The burden of proof is on the government proving that the limit imposed was reasonable Wrongful deed. Shows that person has committed an illegal act, or failed to do something. Guilty mind. spilt into intent and motive The purpose of the act. is split into General and specific Intent is limited to the act itself Intent from an act committed has further criminal purpose Understanding of facts that prove Mens Rea. Is split into motive and recklessness. Reason for committing offences. Does not establish guilt and can be circumstantial. Careless disregard for the result of an action. Minor. Max penalty is six months in jail, a $2000 fine, or both. Serious crimes. Penalty is decided by a judge or trial. The Criminal Code sets the maximum sentence for each offence. Crown Attorney has the right to proceed for a summary and impose a less sever sentence or process as an indictment. Defence used when you take care not to commit a crime or honesty believed in a mistake of fact. Strict because the defendant will be convicted despite being generally unaware of one of the factors that made their act criminal. Do not need to prove Men Rea. Absolute Liability Offences Crown only needs to prove Actus Reus. There is no defence as no act was taken to prevent it Page 4

5 Guilty Acts Act of Omission Attempt Regulatory Offences Abetting Accessory After The Fact Conspiracy Counselor The Criminal Code Culpable Homicide Non-Culpable Homicide First Degree Murder Second Degree Murder Manslaughter Provocation Infanticide Must be prohibited by law. Must have intent and the accused must understand and appreciate the nature of their offence and its consequences. Failure to act. Constitutes as Actus Reus and give rise to liability only when the law imposes a duty to act and the defendant doesn't fulfill this duty. Person intends to commit a crime but fails. Actus Reus is in the steps leading to the crime. Accused can be charged for the crime itself. Class of crime where the standard for proving culpability is lowered so that Men Rea doesn't have to be proven. Encouraging, inciting, or urging another person to commit a crime. Someone who after a crime is committed and knows that it was committed, receives comfort or helps the accused escape. Agreement between 2 or more people to commit a crime or achieve something legal through illegal means. Person trained to give guidance on personal, social, or physiological problems. Main source of law in Canada listed in statutes passed by parliament and precedence. Describes offences considered crimes and gives punishments. Illegal killing of a person where the accused is to blame. Homicide where the death was an accident Planned and deliberate killing of aa human being. Victim can be in law enforcement. Maximum penalty is life (25 years). Deliberate murder of a human being but is not planned. Maximum penalty is life (25 years). Killing a human being without intent or only general intent In the heat of passion. Act is provoked by another action. Must be something that would cause a "normal" person to react to illegally. Killing an infant. Page 5

6 Prostitution Obscenity Abortion Pro-life Argument Pro-choice Argument Weapons Possession and Acquisition Licence (PAL) Amnesty Periods Assault Aggravated Assault Assault Causing Bodily Harm It is legal in Canada, but acts related to it like soliciting, keeping a body house, and procuring are illegal. Section 163 of the Criminal Code. Determined on the communities standards test. can be sex acts or printed materials deemed dehumanizing and immoral. Removed from the Criminal Code in 1989 because it infringed on the security of person of a women and her mental health. Two sides to the topic are pro-life and pro-choice. Disagree with abortion as they believe that fetuses are people and thus abortion is murder. Agree with abortion as they believe that women should have the right to decide what they want to do with their bodies and their future. The Criminal Code defines this as anything used or intended to cause death or injury of person. Or in threating or intimidating anyone. Valid for 5 years. You can obtain one without parent or guardian permission once you are 18 years old. A safety course is needed to buy ammunition. To discourage people from owning a firearm illegally. Registering a firearm. Intentional force is used without consent. Also can be an attempt or threat by applying force or gesture. Also approaching, blocking, or begging with a firearm. Wounds, maims, or disfigures the life of the victim. The consent defence does not apply. Men Rea only to commit bodily harm. While committing an assault a weapon is used. Act interferes with the victims health and comfort. Aggravated Sexual Assault Disfigures victim. Endangers life. Indictable offence. Sexual Assault Causing Bodily Harm Sexual Assault Threating with a weapon, causes bodily harm, sexual assault. Section 265 of the Criminal Code. Occurs when a person Page 6

7 intentionally applies force to another person without the victims consent or voluntary agreement where sexual activity is involved. Consent Arson Break Enter Possession of Stolen Goods Fraud Criminal Harassment Stalking Criminal Negligence Mischief Drug The Controlled Drug and Substances Act Schedule 1 of the Voluntary agreement the complainant to engage in sexual activity. No consent is obtained if they cannot consent through words or expression. Intentional or reckless damage caused by fire or explosion to property. In causing bodily harm the maximum sentence is life, no danger to life 14yeras, intent to defraud 10 years. To break any internal or external or open anything used or intended to close or cover an opening. As soon as any part of the accused body or instrument used to enter the premise. To posses anything obtained from a crime Making a false statement to obtain credit or a loan, using false pretences, fraudulent intent. Course of comments or conduct that is known or ought to be reasonably known to be unwelcome. Stalking was added in 1993 Added to the Criminal Code in Prohibits anyone from communicating with or following another person, member of that persons family, in any circumstances where they fear for their safety. Failure to take reasonable care. State of mind which is careless or neglectful. Destroying or damaging someone else's property to the point where the property itself is useless or ineffective. Interfering with the enjoyment and use of property. Any substance that by its chemical nature alters structure or function in a living organism Criminalizes possession and or trafficking of illegal or controlled drugs. Has four schedules. Lists the most dangerous drugs, including heroine and cocaine Page 7

8 Controlled Drug and Substances Act Schedule 2 of the Controlled Drug and Substances Act Schedule 3 of the Controlled Drug and Substances Act Schedule 4 of the Controlled Drug and Substances Act Possession Imprisonment Incarceration List cannabis and its derivatives. Lists dangerous drugs previously found in the Food and Drugs Act, such as LSD. Lists the drugs that must be controlled but have therapeutic use. Offence to posses any drug listed in schedule one to three of the Controlled Drug and Substances Act. You can still be charged with possession if you do not own the drug. up to 6 months for most summary convictions and 2 years to life for indictable offences. Pretrial custody is equal to twice the time when considering a penalty with no parole, no rehabilitation, and no recreational facilities. 30 days or less in a local detention centre or 30 days to 2 years in a provincial prison or reformatory. You have the option of an intermittent sentence. Intermittent Sentence A sentence served on weekends or at night only if the sentence is 90 days of less. Offender may keep their job. Principle of Totality Dangerous Offender Qualities Dangerous Offender Guides sentencing to prevent overloading prison terms for committing reoccurring or many similar offences. 1. Has a pattern of aggressive behaviour that won't change. 2. Is indifferent to consequences from their behaviour. 3. Committed a brutal offence that foreshadows abnormal behaviour. 4. Has sexual impulses that cause injury to others. Declaration or status made by a judge following a psychiatric assessment which must be reviewed by the National Parole Board regularly. Receive an indeterminate sentence, Page 8

9 Indeterminate Sentence Long Term Offender Capital Punishment Capital Murder Non--Capital Murder Deterrence Sentence Specific Deterrence General Deterrence Treatment or Rehabilitation Recidivism Retribution Protection of the Public Segregation Restitution Being detained indefinitely until it can be shown that ones behaviour is no longer a threat to society. Used if the crown cannot prove Dangerous Offender status. Usually sexual offenders. Is anyone who repeatedly displayed behaviour at risk for causing death or bodily harm and has the potential to reoffend.they receive a regular sentence and an additional 10 years of community supervision. there re two categories, Capital Murder and Non-Capital Murder Planned and deliberate murder committed during a violent crime or while under contract that requires the death penalty by hanging. All other types of murder with a sentence of up to life in prison. Section 718. Deterring people from committing crimes and reflect society's tolerance or intolerance to certain illegal acts. Sentencing should deter the criminal from further actions. Is split into general and specific. Punishment imposed on a person convicted of a crime. Punishment to discourage criminals from re-offending. Punishment to discourage people in genera from offending. Punishment combined with treatment and training to help offenders return to society recidivism reduces 50% when convicts participate in rehab programs. The tendency for a criminal to re-offend. Punishment to avenge a crime, ensuring the criminals serve the consequences of their actions. Punishment that reacts to the public's fears. Protects an individuals property, rights and freedoms, and person. Punishment meant to segregate offenders from society. Not listed in the Criminal Code. Punishment that requires the offender to pay society back for the loss and the harm suffered from their act. Page 9

10 Denunciation The Goals of Sentencing Mitigating Circumstances Aggravating Circumstances Types of Sentences Absolute Discharge Conditional Discharge Probation Fines Suspended Sentence Peace Bond Community Service Deportations Conditional Sentence Custodial Sentence Punishment designed to show society or the government's condemnation of an offender's act. Deterrence, Treatment and Rehabilitation, Retribution, Segregation, Protection of the public, Restitution, and Denunciation. Circumstances of a crime that lessen the responsibility of the offender. Circumstances of the crime that increase the responsibility of the offender. Discharge, probation, suspension of privilege, peace bond, community service, deportation, fine, conditional, jail time. No penalty is imposed, no criminal record results. Being placed on probation for a certain length of time, during which conditions such as restitutions or community service are imposed. After the conditions are served it becomes an absolute discharge. Sentence in which you must report to a probation officer as required. Other conditions are imposed such as treatment programs or refraining from certain substances or people. No jail time is served. Sentence where you must pay an amount of money within a certain time. often used in cases for restitution or property crime. Sentence where the court suspends you to probation with conditions. If the conditions are not met you must return to court for another sentence. Court order requiring a person to keep the peace an behave for a specific period of time. Sentence where the offender must work for the community in positive helpful ways for a certain period of time. To be expelled to ones country of origin. Term of custody to be served within the community. If terms are not met it can be changed to a custodial sentence. Court imposes terms to be served in a provincial correctional centre of a federal penitentiary. Page 10

11 Pre-Sentence Report Victim Impact Statements Federal Policing RCMP Responsibilities Provincial Police Provincial Police Responsibilities Municipal Police Municipal Police Responsibilities Aboriginal Policing Crime Scene Objective informational report on an offenders family, substance abuse, history, education, etc. Describes the harm or loss experienced by the victim or victims family, read in court. Section 722 of the criminal code requires that the court hears it. RCMP Investigate and protect the federal government. Serve as provincial police in all provinces except Ontario, Quebec, and Newfoundland. 1. Boarder customs, passports, marine and ports. 2. Drugs and organized crime 3. International Policing, Interpol 4. Financial Crime, commercial crime branch Rural areas, areas around cities. OPP, Surete Du Quebec, and Royal Newfoundland Constabulary. 1. Responding to municipal police requests 2. Traffic control 3. Investigate on request 4. Firearm registry Jurisdiction over towns and cities. Funded by the municipality. Divided into squads like gang crime, robbery, homicide, and explosive. 1. Preserving the peace 2. Preventing crime 3. Assisting victims of crime 4. Apprehending criminals 5. Laying charges 6. Warrants 7. Enforcing Municipal laws. Partnership between federal, provincial, and or territorial governments and aboriginals to develop police services for Aboriginal communities. Location where the crime takes place. Page 11

12 Tasks for arriving at the crime scene Centre of the crime scene Perimeter of the crime scene Contamination Police Log Patrol Officer Scene of Crime Officers Criminal Identification Officers Physical Evidence Forensic Evidence The Arrest Appearance Notice What the Arresting officer 1. Call an ambulance 2. Call reinforcement to eliminate hazards or risks 3. Search for suspects, must assume that they are present and armed. Where the offence was cmmitted Where the alleged offender may have left evidence. Surrounding the centre. Loss, destruction, or alteration of physical evidence. Written record of what an officer has witnessed or learned at a crime scene, like records or photographs. Check one area regularly and are usually the first at a crime scene. They secure the crime scene and ensure no evidence is lost. Conduct interviews and arrest suspects. Trained in evidence collection and preservation techniques. Searching the crime scene to gather physical evidence and send it to the lab. More serious crimes. Experiences in one area of crime. They supervise investigations. interrogate witnesses and suspects. Any object, impression, or element that can be used to prove or disprove facts relating to an offence. Can carry greater weight in court than witness statements. Use of biochemical or scientific techniques to analysis evidence in a criminal investigation. Must know a crime has been committed and have reasonable grounds to believe the suspect has committed it. there are three choices. 1. Issue an appearance notice 2. Arrest the suspect 3. Obtain a warrant for arrest Names the offence the accused has been charged with an the time and place for their appearance. The accused must sign it. 1. Identify themselves Page 12

13 must do Arresting the Suspect Citizens Arrest Resisting Arrest Summons Arrest Warrant Rights on being detained 2. Advise the accused of their rights 3. Inform the accused of their crime and the charges Suspect is taken into custody. the purpose is to lay charges, preserve evidence, and prevent the accused from committing more crimes. Suspect is arrested by a citizen, the police must be brought in immediately. The suspect flees to escape arrest in a way that may harm or kill others. Police may use as much force as needed to prevent an escape. Legal document issued for an indictable offence, ordering the accused to appear in court. A written court order directing the arrest of a suspect. It includes the name of the accused, offence, and the reason for the warrant. have the right to not answer questions without a lawyer present. It should lead to an arrest quickly otherwise the accused should be set free. Police Rights... Rights on being arrested Search Stage 4 Approach to Questioning Telewarrant Testimony Stay of Proceedings Judge You must be informed of the reason for your arrest, must be allowed to have lawyer without delay, and you must understand your rights, despite intoxication. A careful balance between the individuals rights to privacy and the states need to conduct a thorough investigation.... Warrant obtained by telephone and or other forms of telecommunications. A declaration by a witness under oath, a sworn statement. Court order to stop the trial proceedings until a certain condition is met. Have full control of the court room to maintain order and justice. Page 13

14 Sherriff... Make decisions based on evidence and arguments prevented. They give sentence and determine guilt. Court Clerk Court Reporter Crown Counsel Defence Counsel Adversary System Canada's Criminal Justice System Beyond a Reasonable Doubt Litigation Plaintiff Defendant Litigation Guardian Onus Read out the charges. Swears in the witness. Tags evidence. Record all evidence given, arguments and questions raised, and comments made during the trial, word for word. Represents society. Responsible for proving the accused guilt beyond a reasonable doubt, and get the highest sentence possible. Represents the accused and make sure that their rights are protected. Based on the idea that two opposing sides can present their cases in court. 1. The right to a fair trial 2. Representation Two fundamental principle of this system include. 1. Innocent until proven guilty 2. Right to a fair a speedy trial The accused cannot be found guilty unless the jury or judge is satisfied beyond a reasonable doubt of the accused guilt. The process of suing Person who is suing. Person being sued. Responsible adult in cases where the plaintiff is a minor. The burden of proof. It is on the plaintiff. Balance of Probabilities... Cause of Action Claim A valid reason for suing. A claim must include: 1. The plaintiffs full name and address. 2. The defendants full name and address. 3. The amount of money being claimed. Page 14

15 4. A clear summary of the reason for the claim. Payment into Court Defendant can pay to the court, and the plaintiff can either agree or continue with the case for the full amount. Counter Claim... Third Party Claim Out of Court Settlement The defendant can claim that a third party is responsible for the problem. Litigant can make a formal or informal offer to settle instead of going to the trial. Pre-Trial Conference... Self Incrimination... Defence Audi Alteram Partem The four defence categories Alibi Mistake of Fact Justification Procedural Self-Defence Legal Duty Excusable Conduct Mental Disorder Intoxication or Drug A reason or set of circumstances that might relieve a defendants liability. " Listen to the other side" 1. Alibi 2. Mistake of Fact 3. Justification 4. Procedural Act was not committed. There is no way to prove a guilty mind. There was no legitimate reason for committing the offence. Circumstances are such that the maximum penalty should not be. Justification. The legal use of reasonable force to defend yourself, your property, and your family. The force used must be reasonable. Justification. Allows certain people to commit acts otherwise considered criminal. You can use as much force as needed. Justification. Includes duress, the threat or use of violence. Honest mistake that the offender did not know they committed a crime. Mistake of Fact. Section 2 of the Criminal Code of Canada. Not criminally responsible. Mistake of Fact. Accused demonstrates that they did not have a Page 15

16 Impairment Automatism Consent (Defence) Entrapment Mistake of Fact Double Jeopardy guilty mind at the time of their crime because they were intoxicated. Not specific intent but general intent. Mistake of Fact. An involuntary action by a person who cannot control their actions, an impaired state of consciousness. Any of the four groups. Only used if the party injured by the accused could no or did not agree to an act. Procedural. Police action that encouraged or aided a person to commit an offence. It is recognized a police abuse. Mistake of Fact. Shows a lack of Mens Rea due to an honest mistake or ignorance of the law. It is not a defence but the details of the cases can be used as a defence. Procedural. Being tried twice for the same crime. In section 11 of the Charter it is prohibited. It can be used if new evidence is brought forward to prove guilt. Youth Criminal Justice Act Act for crimes committed by those between the ages of 12 and 18 and the punishments for their actions, including rehabilitation, fair sentences that are less harsh that what an adult would serve, and intervention and addressing the circumstances surrounding the youth criminal's actions. What sentences young people are given should do Requirements for an adult sentence in the YCJA 1. Repair the harm done to the victim and society. 2. Take the persons needs into consideration. 3. Respect the offenders identity, especially for Aboriginal youth. 1. The youth must be 14 years old or older. 2. If convicted on an adult sentence they must be eligible for release by parole earlier than an adult. 3. The crown must determine if an adult sentence is appropriate. Page 16