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523 Cards in this Set

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What was in place as a court system prior to 1950?
Privy council
This court can ONLY review trials
Courts of Appeal
This court hears trials and prelim. inquiries
Provincial court
This court never has trials, and is the "lowest" court
Traffic court
Only the __________ can write laws on criminal matter
parliament of canada
Who decides procedural laws?
Legislature (province)
Parliament (federal) is responsible for the criminal code and the ________
quasi criminal code
What does the quasi criminal code include?
Things like income tax act, WH&S
The legislature is responsible for procedure and _______
regulatory law
90% of cases take placaae in this court
Provincial Court
10-15% of cases take place in this course
Court of Queen's Bench
This type of bill has a much greater chance of passing
Government bill
This type of bill has a slim chance of passing
Private members' bill
Common law is the law developed by?
judges
Statute law is the law developed by the
legislative body
When did Canada decide not to follow English common law, and go with the federal system (unlike the US)?
1867
The criminal code sets mins and maxs. However, sentencing is at the discrertion of which judges?
Judges in the province where the offence was done, based on local conditions
"Sentencing is done at the discretion of judges, in the prfovince where the offence was done, based on local conditions." What are exceptions to this rule?
-Murder - always life imprisonment (1st degree life w/o parole for 25 yrs, 2nd degree parole 10-25yrs)
-Or, some min. sentences like $600 for impaired driving
Does the Supreme Court hear sentence appeals?
Yes, but very rare unless they need to set a precedent
How does the system ensure that "citizens should know what is an offence and what is not"?
-statute law - can read it; common law is harder
-codefied (index)
-try to make it unambiguous (any ambiguity is interpreted in the favour of the accused
Even though we have statute laws, it's interpreted by
the common law (using various tools)
-back to parliamentary committees
-hansard
What do 'cannons of construction' refer to?
The interpretation of the legislature
Are there common law offences?
No, but there are common law defenses (e.g. self defense, not criminally responsible)
Which laws give you a criminal record? (codeS)
Criminal Code
Controlled Drugs and Substances Act
Which codes give you no criminal record?
Everthing else; many white collars crimes, etc.
Who usually proescutes Controlled Drugs and Substances violations?
Federal Prosecution Service
Who usually prosecutes the crim code violations?
Attourney General
Every 2 years or so, this is held to recommend changes to law, address gaps, etc.
Uniform Law Conference
What section of the criminal code would the world Poker tour fall under, if it was going to be a violation?
s.179 - vagrancy
Came AFTER the bill of rights
Canadian Charter of Rights and Freedoms
Considered to be a constitutional document, so much more important, as the Bill of rights was seen only as a statute among many others
Canadian Charter or Rights and Freedoms
The Supreme Court uses the strongest application of the charter, which is then softened a bit by ____
parliament
A new section was recently added to the CC, Part 11.1
Terrorism
This court binds every court in the country
Supreme Court
Every court in AB has to follow the decision of this court
Alberta Court of Appeal
This court binds all provincial courts, but only acts as an FYI for other provinces
Queen's Bench
4th level offences suh as speeding, licenses for businesses, etc. fall under which code?
quasi-criminal
Level 1 offences are called
summary convictions (American = misdemeanor)
Level 2 offences are called
indictable offences (American = felony)
Level 3 offences ?
hybrid offences (summary or indictable, decided by the crown)
An exame of a level 3 (hybrid) offence is?
theft under $5000
Theft under $5000 is a hybrid offence. If the amount stolen was $4999, what would the procedure USUALLY be?
indictment
Are there a lot of hybrid offences in the cc?
yes
85% of the offences in the criminal code are?
summary conviction offences
These offences are always tried by provincial court; appointed by provincial attourney general; inferior court (statuatory court)
Summary conviction offences
These are tried by Court of QB, appointed by federal attourney general, and inherent jurisdiction (can do things out of bounds of the statute that created it)
indictable offences
Indictable offences can be chosen because of what reasons?
-Crown chooses indictment
-Accused chooses indictment
Small numbers of these are still tried in provincial courts
indictable offences (hybrid)
If accused chooses indictable, and the crown has no say, what is this called?
an election
In choosing an indictable offence, the accused has 3 choices - what are they?
provincial court judge
queen's bench judge alone
queen's bench judge with jury
If the accused chooses NOT to elect, the crown chooses for them, and they would choose what? What is it calld?
Court of QB judge and jury - deemed
What is being "deemed"?
When the accused chooses not to elect (when choosing b/t summary and indictableE) and crown chooses a court of qb judge and jury for him.
If you plead not guilty, you a tried in 4-6 months in provincial court. If you please guilty, you get a
preliminary inquiry
In the preliminary inquiry, is there usually a publication ban?
Yes, 99.9% of the time
Why would somebody like the kids on the edmonton city bus, choose no publication ban?
Because they wanted their side of the story to be heard; the press was bad already
Summary conviction penalties
6 months in jail, $6000 fine (usual) but a few higher
Indictable conviction penalties
Min 5 yr, 10 yr, 14 yr, life...
Usually expressed in maximums
Penalty for murder is automatically life imprisonment.
Usually no max fine.
Statutory release is what
Released "unless" ; at usually 2/3 of the sentence
What other offences (other than murder) carry the "potential" for life imprisonment?
Break & Enter
Manslaughter
With summary conviction offences, can you apply for parole earlier?
Yes, usually 2 yrs vs. 5 years
The "usual" summary conviction period has a penalty of
6 months
If you steal a candy bar on June 1st, the crown can only proceed SUMMARILY until when?
December 1st (Doesn't have to be done, but charge has to be laid)
What is the limitation period?
In summary conviction cases, the crown only has 6 months to lay a charge.
Do indictable offences have a limitation period?
NO! No time limit (unlike US)
What is a charge that can ONLY do by indictable offence?
Sexual assault
Impaired driving is a ____ offence
hybrid
In a hybrid offence for impaired driving, if the charge is more than 6 months, the crown must proceed by?
indictment
(unless the accused consents... why would they? b/c the indictable offences can get much higher for a max, so it's in their best interest
Who lays the charges ? (generally)
Police 99%
Revenue Canada, Game Wardens, .10 Private Citizens, .09 government officials
What happens if you fill out your information wrong (name of accused/ date nature of offence / name of informant...etc.)
You can be charged with pergury
Two ways to get reduced:
lesser indictment (bring down a charge)
withdrawal of charge (witnesses bad, etc.)
Does the prelim judge credibility?
No, but the Crown Prosecutor can
Does Police officer have to lay a charge?
No
Does the crown prosecutor have to proceed with a case?
No - can withdraw
When can the crown stop proceedings?
Any time
What is a stay of proceedings?
Proceedings are halted, have to continue within a year; if you don't, everything is gone (as if the charge was never laid; regardless of what stage it was at)
AG looks at case -> But answerable to the legislature
Stay is up to the Crown Prosecutor, but only AG can start it up again
who initiates a stay of proceedings?
crown prosecutor, but only AG can begin again
Who can UNhalt a stay of proceedings?
ONLY attourney generaal
What are some reasons for having a stay of proceedings?
Witness is missing (crucial), etc. Most judges believe you cannot withdraw on indictment
What is jury nullification?
When the law says the person is guilty, but jury decides no punishment - ignores the law and quits (doesn't work the other way around)
Who has the right to INTERVENE or be INVOLVED in a case?
-Appellant
-Majesty the Queen (Regina)
-Repellant
-Intervenor (not automatic)
Who always has the right to intervene in criminal code matterS?
Attourney General
What's the max amt of time parties have to intervene usually?
10 minutes at most
In the Supreme Court, 9, 7 or 5 judges will sit (odd so they can't tie) - how many currently sit?
7
What is a Krieger error?
Lawyer, telling jury they can ignore the law. NOT OK.

Quote: It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.
The mental element of a act is referred to as
mens rea
the "what was done" part of an act is referred to as
actus reus
If intention is determined, in mens rea, and it was an accident, is there criminal liability?
no
this is presumed in the law, so its the accused's job to prove if they aren't
sanity
specific intent offences - what's a good example?
B&E w/ intent
Robbery w/ intent
what's the difference b/t aiding and abetting?
aiding is aiding; abetting is more like encouraging
Shouting someone on in a fight would be an example of?
abetting
You don't have to necessarily participate in the act to be charged with ___ offences in section 22
counselling
"Getting ready to committ an offence, but never actually doing it" - is that an offence? According to section 24,
yes - attempts
of a beefed up "counselling" ; want to be able to stop an offence before it happens, and don't wnt people encouraging others to commit crimes
conspiracies
Not checking an account balance before writing a cheque - what charge?
willfull blindness
For a summary conviction notice, can you send an agent?
yes
For an indictable offence, can you send an agent?
No - must appear in person, every time
Preliminary inquiry court is ALWAYS ____
provincial
At this type of event, there is no verdict, the judge has limited procedures & abilities, the main job is to determine whether the person should stand trial or not
preliminary inquiry
if a jury trial, jury is reminded that there is a _____, where they must prove beyond a shadow of a doubt
presumption of innocence
In civil law, must you prove beyond a shadow of a doubt?
No - in civil law, it is a balance of probabilities (dealing with money and property, whereas criminal law is dealing with freedom and dignity)
Civil law detals with money and property, while criminal law deals with:
freedom and dignity
In cases such as these, jurors are told that sentencing should not be their concern, and consideration of the sentence shouldn't enter into deliberations
not criminally responsible
Arrests can be made, as long as there is:
reasonable grounds
reasonable force
Arrested without a warrant, usually it is for what type of offence?
hybrid or indictable
What special status does the mayor have?
peace officer status
How soon after arrest should the arresting person take the arrested person to the justice of the peace?
ASAP - in edmonton, should always be one; in small town, may have to wait until morning
When does section 503 say a JP should be gotten?
Within 24 hours or as soon as possible
Why might someone choose to see a judge over a JP?
Because judges can't review detention unless the prosecutor presents it
What offences can the provincial court judges NOT hear?
469 offences
Can't hear bail (only QB)
Who review the PC judge's dcision and can either enforce it or change it?
QB Judge
All levels EXCEPT this court have a publication ban,, except for 469 offences
Court of Appeal
3 main grounds for detention
1) Reason to believe they won't show up for court
2) Commit other offences
3) Publilc interest - confidence in the admin of justice
Steps of prosecution include
1) First appearance
2) Election
Election can only be given on
hybrid offences
Former president of the law reform commission
antonio lamer
once gave a speech on criminal trials, and defined them as "a dramatic affirmation of societal values"
antonio lamer
a reaffirmation of societal values....
criminal trial
Basic constitution in 2 acts...which ones?
1867 - consitituion act of 1867 (Confederation)
(used to be known as the BNA Act - British north american act)
1982 - Charter of Rights
Section 91 of the Consitution Act includes
Federal Powers (Powers of Parliament)
Section 92 of the Consitution Act includes?
Provincial Powerrs (Given to provincial legislatures)
Which section of hte charter gives the federal government power to create laws, federal trade & commerce, and 29 different enumerations assigned to federal power
section 91
which section of the charater gives 16 different enumerations to provincial powers
section 92
Which section of the charter gives the fed govnt the power to pass criminal laws
section 91(27)
which section of the charter gives the federal govt the right to ENACT CRIMINAL PROCEDURE?
Section 91(27)
Which section onf the charter EXCLUDES the power from the federal govt to create any courts having criminal jurisdiction?
Section 91(27)
Section 91(27) includes 2 parts in relation to federal govt authority. Which are included?
1) Authority to pass criminal laws
2) To enact criminal procedure to be followed in crim law cases
3) excludes the power to create any courts having criminal jurisdiction
This court - much of the work is dealing with appeals in criminal cases
Supreme Court
Which section gives the federal parliament the authority to create the supreme court (branch 1 - final court of appeal for all cases, branch2 - create any other courts for the better administration of the laws of Canada)
101
Four subsections in s 92 set out what the provinces can do - which ones?
92(13), 92(14), 92(15), 92(16)
Gives povinces the ability to create courts with criminal jurisidction
92(14)
section 92(14) gives provinces the right to create courts with criminal jurisdiction, but what else does it include?
provincial parole, provincial corrections, building courthouses, paying for transcription, personnel, policing in the province, and municipal institutions
2 kinds of provincial offences include?
regulatory offense
quasi-crime
Consitituion doesn't define what a crime is, what doeS?
case law, what cases have said since 1867.
Specifies that when province passes a law under any 16 of the enumerations, it is allowed to attach a penalty
92(15)
When was the Privy Counsel in England's power in Canada abolished?
1949
The first definition defined crime as?
"criminal law in its widest sense"
The second definition of crime was,
"by its nature, falls within the domain of criminal jurisprudence"
The third def'n of crime,
if it's serious, it must be criminal
(penalty dictates the seriousness of the crime!! the tail is wagging the dog!!)
The Margerine case, whih gave a better test of what criminal law was, was in what year?
1949
In 1949, gave a better test of what criminal law was defined as
The Margerine Case
In this year, it was an offence to make, sell within a province, export or import margerine
1949
Definition of criminal law from the margerine case:
Look at prohibited act - having regard to the injurious effects on the public of the activity, was the prohibition created/passed to achieve a public purpoe? Was the purpose one of the following 1) peace 2)order 3)security 4) health 5) morality (or public safety)
What's the difference between security and public safety?
"Security" much wider than physical safety; e.g. privacy - can be mental, psychological, etc.
This case defined what a quasi crime is
Bedard vs. Dawson
Can provinces make a moral statement?
no - only parliament can make a statement of peace, order, security, etc. province can only "supress conditions which are calculated to foster the development of crime"
Who is responsible for "supressing conditions which are calculated to foster the development of crime"?
province
Theonly body with the right to legislate morality
federal parliament
What was the turnout of the case in Nova Scotia (Jerod MacNeal) over whether last Tango in Paris could be sensored?
It was OK to censor this.
What was the outcome in Westendorp vs. the queen
The province did NOT have jurisdiction
Outcome of R. vs Hydro Quebec
Court said wasn't province's jurisdiction b/c related to issues of safety
Outcome of Rio Hotel v. New Brunswick
Province DOES have jurisidction to regulate alcoholic beverages
What are type A courts
Purely federal courts - created by federal statute, federal govt appoitns judges
exception: all courts can deal with federal and provincial issues (except tax court)
Permission to appeal to the supreme court is called?
leave
automaticallyl have right to appeal if:
there is a dissenting judge in a provincial case

the crown appeals a jury's acquittal of accused
what section talks about the permission to appeal to the supreme court (leave to appeal)
section 101 (branch A)
Which section says the federal govt can create any other courts for the better administration of the criminal laws of canada?
section 101 (branch 2)
Since 1971, the federal govt, in regards to sec 101 (branch 2), have created which courts?
1) federal court of canada
2) tax court
The federal court of canada has 2 divisions:
1) appeals division
2) trial division
what does the federal court of canada involve?
Administrative law ; limits/controls govt action; court can supervise govt action, will step in when some agency of govt is unfair
if federal court agrees that the federal govt was a reasonable apprehension of bias, they can issue extraordinary remedies, called/
perogative writs
whasta are the four perogative writs
1) writ of certiorari (quashing - a decision made by a biased individual or after an unfair hearing)
2) writ of prohibition (same reason but before a final decision)
3) writ of mandamu (govt official refuses to perform a statuatory duty/obligation by law)
4) writ of habeas corpus (improperly detained)
tests for admission of certain evidence
past J.P, PCJ, QBC, ex parte
trial - often cross examine information
what's the best defence for the accused?
full cross examination
What are type B Courts?
Hybrid Courts, b/c judges in these courts are created by the province by provincial legislature
What gives type B courts the right to exist?
92(14) - of Consitution Act of 1867; provinces have jurisdiction of the admin of justice in a province
In type B courts, are the judges provincially or federally appointed?
federally
What are section 96 courts?
Section 96 authorizes the federal government to appoint judges for "the Superior, District, and County Courts in each Province". No provinces have district or county courts anymore, but all provinces have superior courts. Although the provinces pay for these courts and determine their jurisdiction and procedural rules, the federal government appoints and pays their judges.
Form 1 - is ?
Information to obtain a warrant
The only s.96 courts which still remain are the?
Court of Queen's Bench
AB Court of Appeal
How many s. 96 courts are in AB?
2 - Court of Queen's Bench, and AB Court of Appeal
The highest court in Alberta
Alberta Court of Appeal
This court hears lots of appeals in criminal law matters, including
1) Serious crimes
2) Some summary conviction appeals
3) Process of judicial review
AB Court of Appeal
Which serious crimes MUST be tried in Court of qUEEN'S BENCH?
Murder - with or without jury
Electable indictable offences (have a choice between CQB or lower court)
The authority to issue extraordinary remedies , also known as...
perogative writs
Reviews federal govt act, issues perogative writs but NOT habeus corpus
federal court
Reviews provincial govt acts, including habeus corpus
court of queen's bench
Why is there not habeus corpus at a federal level?
There isn't always a federal court judge; HC has always been CWB
If in a preliminary inquiry, a provincial court judge decides the accused is committed to trial b/c of evidence, can you appeal?
NO! Appeals are purely statuatory in nature; if no statute, you don't have the right to appeal
What's the only way to get a court to review a preliminary inquiry?
if there is a breach of "doctrine of fairness," and you still can't overturn, just suspend
CQB conducts a judicial review
The ONLY grounds to appeal a prelim inquiry is?
A breach of fairness
What are Type C Courts?
Most important in respect to civil law matters... provincial jurisdiction, provincial authority to appoint judges to court C courts
Prior to 1978, there were 3 types of Type C Courts...which were they?
PC of Alberta, divided further into:
-Criminal
-Small Claims
Family Court of Alberta
Juvenile Cout (under YOA)
Are judges appointed to juvenile court?
No, if you are appointed to provincial court, family court, etc. automatically a member to juvenile court
As it currently sits (since 1978) THERE IS ONLY ONE PROV. COURT IN ALL OF AB. This is divided into what?
4 sections:
1) Criminal (Crim division)
2) Small Claims (Civil division)
3) Family Division
4) Juvenile Court (youth division)
99% of criminal trials are in which division?
Court C Courts (Provincial)
Type C Courts have three general fxns:
1) trials (main)
2) preliminary inquiries (if choose to be tried in qb, prelim inquiry in pc)
3) procedural aspects
A "surrogate" court is new part of which court?
Court of Queen's Bench
This court deals with estates, testamentary matters, change of name, etc.
Surrogate cOURT
2ND HIGHEST COURT
Court Marshall Appeal Court
Reviews federal govt act, issues perogative writs but NOT habeus corpus
federal court
Reviews provincial govt acts, including habeus corpus
court of queen's bench
Why is there not habeus corpus at a federal level?
There isn't always a federal court judge; HC has always been CWB
If in a preliminary inquiry, a provincial court judge decides the accused is committed to trial b/c of evidence, can you appeal?
NO! Appeals are purely statuatory in nature; if no statute, you don't have the right to appeal
What's the only way to get a court to review a preliminary inquiry?
if there is a breach of "doctrine of fairness," and you still can't overturn, just suspend
CQB conducts a judicial review
The ONLY grounds to appeal a prelim inquiry is?
A breach of fairness
What are Type C Courts?
Most important in respect to civil law matters... provincial jurisdiction, provincial authority to appoint judges to court C courts
Prior to 1978, there were 3 types of Type C Courts...which were they?
PC of Alberta, divided further into:
-Criminal
-Small Claims
Family Court of Alberta
Juvenile Cout (under YOA)
Are judges appointed to juvenile court?
No, if you are appointed to provincial court, family court, etc. automatically a member to juvenile court
As it currently sits (since 1978) THERE IS ONLY ONE PROV. COURT IN ALL OF AB. This is divided into what?
4 sections:
1) Criminal (Crim division)
2) Small Claims (Civil division)
3) Family Division
4) Juvenile Court (youth division)
99% of criminal trials are in which division?
Court C Courts (Provincial)
Type C Courts have three general fxns:
1) trials (main)
2) preliminary inquiries (if choose to be tried in qb, prelim inquiry in pc)
3) procedural aspects
A "surrogate" court is new part of which court?
Court of Queen's Bench
This court deals with estates, testamentary matters, change of name, etc.
Surrogate cOURT
2ND HIGHEST COURT
Court Marshall Appeal Court
Reviews federal govt act, issues perogative writs but NOT habeus corpus
federal court
Reviews provincial govt acts, including habeus corpus
court of queen's bench
Why is there not habeus corpus at a federal level?
There isn't always a federal court judge; HC has always been CWB
If in a preliminary inquiry, a provincial court judge decides the accused is committed to trial b/c of evidence, can you appeal?
NO! Appeals are purely statuatory in nature; if no statute, you don't have the right to appeal
What's the only way to get a court to review a preliminary inquiry?
if there is a breach of "doctrine of fairness," and you still can't overturn, just suspend
CQB conducts a judicial review
The ONLY grounds to appeal a prelim inquiry is?
A breach of fairness
What are Type C Courts?
Most important in respect to civil law matters... provincial jurisdiction, provincial authority to appoint judges to court C courts
Prior to 1978, there were 3 types of Type C Courts...which were they?
PC of Alberta, divided further into:
-Criminal
-Small Claims
Family Court of Alberta
Juvenile Cout (under YOA)
Are judges appointed to juvenile court?
No, if you are appointed to provincial court, family court, etc. automatically a member to juvenile court
As it currently sits (since 1978) THERE IS ONLY ONE PROV. COURT IN ALL OF AB. This is divided into what?
4 sections:
1) Criminal (Crim division)
2) Small Claims (Civil division)
3) Family Division
4) Juvenile Court (youth division)
99% of criminal trials are in which division?
Court C Courts (Provincial)
Type C Courts have three general fxns:
1) trials (main)
2) preliminary inquiries (if choose to be tried in qb, prelim inquiry in pc)
3) procedural aspects
A "surrogate" court is new part of which court?
Court of Queen's Bench
This court deals with estates, testamentary matters, change of name, etc.
Surrogate cOURT
2ND HIGHEST COURT
Court Marshall Appeal Court
Anything below this amount is cnosidered bo be small claims
$25,000
Surrogate court is part of which court?
court of queen's bench
This court is a federally administered tribunal
Citizenship court
Minor offences MUST be tried in this court
Provincial Court
These offences are the only offences that can be tried in either court
Electable Indictable Offences
Why would an accused elect to be tried in a court of queen's bench?
-You can get a jury
-You can get a prelim inquiry (lawyer for the accused coould figure out if the witnesses are good or bad)
Why would an accused elect to be tried in a provincial court?
-Judges more desensitized
(Criminal cases day in the day out)
Can summary conviction offences get an election?
NO - only indictable and hybrid offences can get an election
Some offences specify directly in the criminal code that it's summary AND indictable - in that cause, what is the election?
The election is of the crown, not the accused
Why would the crown elect to proceed by indictment?
-Multiple time commiting the offence
-Facts of case - if point toward a greater crime, may go indictable
-Incentive to encourage the accused to plead guilty to a lesser offence
All summary conviction offences are heard by?
provincial court
Is there a theoretical reason that provincial offences are not indictable offences?
No - just no cases like that
Indictable offences can be divided into three categories:
1) Absolute jurisdiction offences
2)Electable Indictable offences
3) Other (Most serious) Indictable Offences
Absolute Jurisdiction offences are a type of?
Indictable Conviction Offence
No discretion, no election by anyone
*MUST be tried by a provincial court judge
Electable Indictable offences are a type of
Indictable Conviction Offence
-Heard by a PC judge,
-Tried for the first time by a QB judge w/o jury +PI
-Heard by a QB judge with a jury + PI
Other (Most Serious) Indictable offences are a type of
Indictable Conviction Offences
Have to be tried by QB judge, but can elect jury or no jury
**but a PI is always required!
How many trials have juries?
The vast majority DO NOT have juries
Which law encompasses rules for jury selection?
Both provincial and federal law
what act did provinces pass in relation to jury selection?
jury act
sets out qualifications as to who is eligible to become a juror in alberta
jury act
to be chosen, you have to be?
qualified, eligible, and not get out of it based on any exemptions.
Lawyers for the crown and accused are allowed to exclude certain people on the basis of 3 types of challenges
-Array challenge
-Challenge for Cause
-Peremptory Challenge
To be eligible for jury duty, you must be?
Resident of AB
Canadian Citizen
18 yrs of age or older
EXCLUSIONS for jury duty include:
-Privy Council
-House of Commons
-Leg Assembly of AB
-Member of Municipal Council, School Trustee, Mayor, et.
-Students at law
-Medical Examiner
-Officer or employee of legislative body
-Convicted >2 yrs
-Confined in an institution
-Engaged in the administration of justice (police, probation officers, etc.)
Are the exclusions for jury duty exhaustive?
No - could include other things
Array challenge - who decides?
judge
Array Challenge is what?
When the entire group of people is challenged, ,based on some impropriety in the way the sherrif summoned them to appear
Challenge for Cause - describe
Specific ground under which a specific juror can be excluded; no numerical limit (unlimitd) you could challenge every single juror if you wanted (with cause)
Peremptory Challenge
most common - biased between one side or the other
You can challenge "preemptory" whether or not they have been challenged for a cause alraedy
How many peremptory challenges are there for high treason / murder?
20
How many peremptory challenges are there for sentences > 5 years
12 challenges
How many peremptory challenges are thre for sentences " other" than murder/treason, or > 5 yrs
4 challenges
Since manslaughter has 0-20 yrs sentence, how many peremptory challenges?
12
8 Grounds for Exemption
1- conscience or religious views
2-served on a jury within 2 yrs of being summoned again
3- service on a jury causes severe hardship to health/livelihood
4 -a person who doesn't live a reasonable distance away
5 -person who suffers from physical, mental or other infirmity
6- a person who is unable to speak or read the language the trial is in
7-service on jury contrary to public interst b/c of essential service
8-if over 65
If array challenge, who decides if challenge to a juror will be enforced?
judge
if challenge for cause, who decides if challenge will be inforced?
jurors 1 and 2 decide 3,4, plus people from the hall, etc.
Peremptory challenge - if using this, who decides if challenge to juror will be enforced?
Don't need a reason.
Are we diminishing the # of available defences in canada?
Yes, but the charter defense has made up for the diminishment of other available defenses
Types of defences
1-Common law defences
2-Statuatory defences
3-Consitutional defences
These def. don't depend on the existance of a statute
common law defences
For these defences, there is actually an actual statute that sets out the defence
statuatory defences
These defences, the defense is out of the Charter of rights & freedoms
Consitutional Defences
What is the pizza defence?
A "little bit" of insanity, a "little bit" of automotism, etc. - has been successful to some extent in Canada
What is the twinkie defence?
Hypoglycemic ingests sugar, not accepted in canada
Common law defences, statuatory defences, consitutional defences....can there be a mixture?
yes
Common law defences include:
1) Automotism
2) Diminished Capacity
3) Alibi
Automotism can be divided in 2
insane, non-insane
What would diminished capacity mean?
common law defence, ingestion of too much alcohol/drugs
Alibi defence
Evidentiary common law defence - wasn't there
Statuatory defences include
1) Insanity
2) Provocation (limited to murder)
s.232 sets out this stat defence
provocation
(limited to murder)
Defense to insanity involves this
mens rea
"Didn't have the mens rea to commit the act" refers to?
automotism
Circumstances wre automotism exists, as determined by the courts
Somnabulism (sleepwalking)
Hypoglycemia
Seizure, Epileptic Convulsion
*There was a period when Extreme Drunkeness, but was amended to be removed
Is extreme drunkenness a common law defence?
Yes, but not automotism
Three culpable homocides
1) Murder
2) Manslaughter
3) Infanticide
What refers to the specific intent in mens rea?
mens
What refers to the general intent in mens rea?
rea
Drunkeness can only negate what type of intent?
specific intent
Not knowing something is illegal is NOT a defence - it's called what?
mistake of law
mistake of fact - is it a defence?
yes, a limited defence in common law
what is the power allocation technique?
judge could use the provision of powers between parliament and the legislature, and could be used on occasion to strike down these offensive laws
who has power over the right to vote?
citizenship is federal, so province has no right to interfere by passing laws regarding who can vote
Who were the four academics responsible for developing the charter?
Pierre Trudeau
Laskin
Turnepowsky
McGuiggan
The laws in the charter are divided into 3 separate categories
Political Civil Liberties
Legal Civil Liberties
Egalitarian Civil Liberties
Political Civil Liberties in the Charter include
Freedom of Speech
Freedom of Assembly and Association
Freedom of Press
Freedom of Religion
Legal Civil Liberties in the Charter deal with
portections in law given to those in contact w/ the criminal justice system (e.g. reg of warrants, etc.)
The fourth "section" of laws that Trudeau and his friends made up that WERE NOT included in the charter include
Economic Liberties, freedom to own, lease property, suing in torte, contract
What section of the charter is referred to as the "fundamental freedoms"
Political civil liberties - freedom of speech, assembly and association, press, and religion
These rights are two separate places in the Constitution Act of 1982
Aboriginal Rights
Section 25 of part 1 of the Constitution Act, and
part 2 of hte Consitution Act of 1982.
These do not confer substantive rights inately, but modify rights elsewhere
Multiculatural Rights
Mobility Rights in the Charter refer to...
No province can set up a barrier to prvent mobility among Canadian provinces
Democratic Rights... include?
Always in the consitution, but in another section;
Right to vote, Right to serve in a office if elected, etc.
Section 1 of the Charter
Procedural
Section 2 of the Charter
Fundamental freedoms (the politicl civil liberties)
Section 3,4 and 5 of the Charter
Democratic Rights
Section 6 of the Charter
Mobility Rights
Section 7,8,9,10,11,12,13,14 of the Charter
Legal rights (those in contact with CJS)
Section 15 and 28 of the Charter
Equality Rights
Section 16-22 of the Charter
Language/Linguistic Rights
Section 23 of the Chater
Language of Education Rights
Section 24 of the Charter
Procedural
Section 25 of the Charter
Aboriginal Rights
Section 29-34 (end) of the Charter
Procedural
2 kinds of applications someone can make under the charter
24(1)
52(1)
24(2)
Under this section of the charter, says that anyone whose rights infringed/denied can apply to a court of competent jurisdiction to seek what remedy the court deems just and appropriate in the circumstances
24(1)
Section 24(1) only applies if...
your rights have been denied
What does competent jurisdiction mean?
Competent over 1) you (the person) 2) the matter 3) the remedy
This section says any law inconsistent with the constitution, to the extent of the inconsistency, is of no force or effect
Section 52(1)
Standing is relevant again in challenging this section of the charter, where you must prove that you have a genuine interest in the matter
Section 52(1)
Which section of the charter deals with exclusion of eveidence, evidence obtained in violation of a charter right
24(2)
What was the turnout of Ms. Clarkson in Moncton, NB.
She got off because she was explained her rights when she was drunk.
This section of he charter is vague b/c english/french don't match up ...which one is used?
24(2) - french used, because it says "could" which favors the accused more
Who does the charter apply to?
Public sector s 32
What is the proximity of the agentcy in question to the government?
Nexus test
A case that proved gov't applies only to gov't, not private sector
Dolphin deliveries
Sometimes a private sector complaint can evolve into a public complaint - what's a case that's an example of this?
Vriend Case
What was the outcome of the Vriend case?
AB anti-descrimination statue is itself discriminatory, according to charter
Can you have discrinination, if you can prove it's reasonable and justified?
yes
Ëveryone" can take advantage of which section of the charter?
s2
In regards to s 2, does "everyone" include a corporation?
yes
In section 7, ëveryone" has a right to life, liberty and security, does thsi apply to corporations?
no
Case: What was the outcome of Daigle vs. Tremblay?
In French, does NOT include a fetus, so couldn't use that to keep her from having an abortion.
Each charter case is a two part process:
1) Those who allege a statute/law/regulation violates a charter have to establish
(barring limitations clause)
2) If you establish to courts, you go to court
Proportionality Test
1) Rational - A rational connection b/t the purpose of the law and the way the law is designed to achieve that purpose
2) Non Dis Proportional
Non dis proportionate way to achieve it
3) Minimally intrusive
When laws passed, many laws can achieve that objective. Did parliament choose a wayto ahieve the objective that introdudes on your rights as little as possible?
What does rational mean in the proportionality tesT?
There is a rational connection between the purpose of the law and the way the law is designed to achieve that purpose.
What does non-disproportionate mean in the proportionality test?
There is a non-dis-proportionate way to achieve it (e.g. jaywalking!)
What does minimally intrusive mean in regards to the proportionality test?
That the government chooses a way to achiee the objective that intrudes on your rights as little as possible.
Oakes test in one sentence?
Considered a reasonable limit if it is a rational, non disproportionate, minimally intrusive means of achieving a pressing and substantial state objective.
What does the oakes test define is the purpose of laws?
pressing and substantial state objective
What does the oakes test define as the means of a law
rational, non-disproportionate, minimally intrusive
In the Case of Dagenais v. CBC
The judge ruled that it was a violation of freedom of press and let them air it.
Outcome of R v. Big m Drug Mart
The court struck down the Lord's Day Act for violating section 2 of the charter of rights and freedoms.
If you murder in the 1st degree, what is your sentece?
life without parole for 25 years
If you murder in the 2nd degree, what would your sentence be?
Life without parole for 10-25 years.
What is the minimum sentence for manslaughter?
0
In R v. Rhyerson, what was the outcome?
Error in principle - sentence demonstrably unfit
For the person to be fit to stand trial, you must be?
1) aware of the nature of prcess
2) able to instruct counsel about how to defend
If unfit, according to s 672.1, what ahappens?
Sent off for treatment
-If treatment works, accused is brought back for trial
Not criminally responsible - this approach is in the accused's hands, and usually brought up when?
After a finding of guilt
To determine drunkeness, must know if they have the:
1) capacity to form intent
2) actually did form intent
In this minimally intrusive part of the proportionality test (oakes), does it have to be the absolute least minoimally intrusive?
No, just among the least intrusive.
Is having a "disease of the mind" enough to be not responsible?
No - must be a causal connection b/t disease of hte mind and not knowing the act was wrong/appreciating the nature or quality of the act
Dispositions for NCR include:
-Absolute discharge
-Conditional discharge
-Dtention in custody in hospital
are there reviews of dispositions?
yes, annual reviews of dispositions other than absolute discharges
mental disorder means...
disease of the mind- any illness, disorder to abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.
What does äppreciate" mean? in regards to NCR
Involves more than knowledge that physical act is taking place: requires capacity to apprehend nature and character of act, and its consequences (foresee and measure consequences, impact, results) at time of commission.
what is the highest court in canada?
supreme court of canada
what is the second highest court in candada?
courts of appeal (provinces, territories, etc.)
10-15% of cases are put through this court
court of queen's bench
trials, appeals
What do 'cannons of construction' refer to?
intention of the legislature
how do conservative want to change the use of conditional sentence orders?
restrict their use
Summary convictions are level?
1
Indictable offences are level?
2
Quasi criminal are level?
4
Hybrid offences are level?
3
85% of offences in the criminal code are these
summary conviction
always tried by provincial court; appointed by provincial attourney general ; inferior court (statuatory court)
summary conviction
tried at court of queen's bench; appointed by federal attourney general; inherent jurisdiction
indictable offences
penalty for a summary conviction offence
6 mo. in jail, $6000 fine (usual) but a few higher
indictable offence penalty?
min 5 yr, 10 yr, 14 yr, etc.
usually expressed in maximums
penalty for murder is automatically life in prison
statuatory release
released 'unless', at usually 2/3 of the sentence
Does the PI judge credibility?
no, but crown prosecutor can
is there a time limit to resuming a stay of proceedings?
yes, must resume within 1 yr or it's as if the charge was never laid
How many judges currently sit on the supreme court?
7
approximately how long is the sentencing process?
2 years
approximately how long is he dangerous offender application?
1 year
are witnesses REQUIRED to attend the preliminary inquiry?
yes
Can you appeal a preliminary inquiry?
NO! But there can be a process of rview, only if there was a breach of process/rights
if someone's charter rights have been breached, who is the burden of proof on
the accused (on balance of probability)
Ways to swear in court...
oath, affirm
what's the difference b/t an oath and an affirmation?
oath-religious connotation
affirm - no religious connection (not often done)
How old until you are assumed to know the importance of telling the truth on the stand?
14
testimonial evidence can be
direct
circumstantial
this type of evidence - "saw this happen" no inference needed
direct
In this type of evidence, you may have seen things, but not actual occurence
circumstantial
Test for conviction on circumstantial evidence
That the circumstances consistnt with the guilt of th accused and inconsistent with ANY OTHER rational explanation
Quite often harder to prove than direct evidence,
BUT a whole bunch is more compelling
Is it possible to convict off of cirumstantial evidence?
yes
Most witnesses cannot give OPINION evidence... but what are some exeptions?
1. COMMON occurences - e.g. he looked drunk, tired, stoned, car speeding
2. Experts - know more than the court or general public in that instance (can be trades, sports, science)
Stages of experts
1. qualified? yes or no
2. weight - people tend to get overwhelemd by experts
3. be related to facts of case
Statement of a person NOT on the stand that is put in for the truth of it is called
heresay
hersay =
a statement made by a person NOT on the stand that is put in for the truth of it
A "special form" of heresay
documentary evidence
Character evidence can be brought in IF relevant; what makes it allowed?
if accused says they "wouldn't do that" it puts them up for attack for bad character references
This restricts or reduces the crown's ability to restrict the criminal record; offences showing dishonesty, offences shwoing violence or something else
Corbett Application
" leading questions " are not allowed in the??
examination in cheif
are leading questions allowed during cross examination?
yes
when can evidence be called?
exam in chief,
cross exam,
re-exam
**for both crown and defense**
Why is it difficult to call a spouse as a witness?
Because the "couple becomes one", so testifying against your spouse doesn't have to happen
Which is harder to brief - Solicitor/Client priveledge or Informant Priviledge?
Solicitor Client Priveledge is the hardest to breach
The major factors the court focuses on in respect of penalties are:
1) denunciation
2) general deterrence
3) specific deterrence
4) rehabilitation
Three main types of enforcement used in CCJS:
1) fines
2) imprisonment
3) probation
Few offences with min punishments - what are exceptions
murder - life sentence
robbery with firearm - 4 years
firearms committing any other indictable offences - 1 yr min
The sentencing scheme introduced by parliament in '95, in response to reports that Canada had one of the highest incarceration rates in the world
conditional sentencing
Some major sentencing guideliens in AB
1) 3 yrs of robbery of a convenience store
2) 3 yrs for major sexual assault
3) 4 yrs for major sexual assault on child
4) 5 yrs for bank robbery with a weapon with no one hurt
yrs for a home invasion robbery
8
Do the courts have input into parole?
Very little; parole is set out by prisons and reformatories act, and parole is determined by an appointed board
(except faint hope clause-jury)
Exceptionn to rules for parole is in the faint hope clause for first degree murder, where after 15 yrs, inmate can apply to have parole elig. reduced, and who decides?
jury
What is the faint hope clause?
After 15 yrs for 1st degree murder, inmate can apply to have his parole eligbility redued, and has a hearing in front of a jury, who make the final decision.
Community service works out to getting paid about ??
$50/day
Where there is no specified penalty, the court can (after finding guilt) direct the accused to be discharged either:
-absolutely
-conditionally
This option used to only be available for young offenders, but now adults may be directed to adult diversion
alternative measures
The final decision of whether the offender can be diverted to the alternative measures rests in the hands of?
the crown, who will look at the offence and the history of the offender in the CJS.
Typically involves the offender facing the person aggrieved, apoligizing or repaying victims, or performing some community service
alternative measures
In stat release, you can get two types of parole
1. day parole
2. full parole
In a summary conviction offence, the standard max is ?
6 months or 2000 fine, or both.

Some SC's have 18 months (e.g. assault causing bodily harm)
You can't have probation where jail is
>2 yrs
"imprisonment in the community"
conditional sentence order
Two prerequisites for a conditional sentence order
1. sentence has to be less than 2 yrs
2. accused is not a danger to the community
Are there any offences AUTOMATICALLY excluded from the conditional sentence order?
No
In a summary conviction offence, the standard max is ?
6 months or 2000 fine, or both.

Some SC's have 18 months (e.g. assault causing bodily harm)
You can't have probation where jail is
>2 yrs
"imprisonment in the community"
conditional sentence order
Two prerequisites for a conditional sentence order
1. sentence has to be less than 2 yrs
2. accused is not a danger to the community
Are there any offences AUTOMATICALLY excluded from the conditional sentence order?
No
Process of alternative measures
1. charges laid
2. offender recommended for diversion
3. review by crown
4. sent to do community service
5. if completed, charge dropped
6. if not, charge continues
regulatory offences can be broken down into two types:
mens rea offences
absolute liability offences
Due diligence defense?
Court stated that the due diligence defence "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability."
What is curative discharge?
Curative discharges are very rare. They may
be considered appropriate if a court is satisfied that a person has
a serious alcohol or drug problem and there is a reasonable
chance of overcoming these problems through treatment.
A person who is given a curative discharge will be placed on probation with the strict condition that a treatment program be taken.
The basic premise of the criminal code is to punish people only for
actions they can be held responsible for
A common, but not exclusive disorder that is successful in defence - many of the religious/supernatural type
delusions
two forms of automotism as recognized by law
insane automotism
non insane automotism
If successful, a claim of non-insane automotism entitles the accused to ?
an acquittal
A finding of this state is proven on the basis of a balance of probabilities, the same as a mental disorder defense
insane automotism
An application regarding an NCR hearing is held?
after the verdict is entered
formerly known as the defense of insanity?
mental disorder
Drunkness defense only applies to
general intent offences, not specific intent offences
The philosophy of the youth criminal justice act is baed on the assumption that
youth are more in need of guidance and correction than tey are in need of punishment.
The basic test for a section 1 justification for a law; 3 basic tests the law must pass:
1) objective to be served by limiting the charter right must be succificnetly important, and the means must be reasonable and demonstrably justified in proportion to the importance of the objective
the proportionality factor of the basic test whether section 1 justification for law can be overridden involves 3 factors:
1) fair and arbitrary, carefully designed to achieve the objec in question and rationally connected to that obj
2) must impair the charter right as little as possible
3) must be proportionality b/t effects of limiting measure and objective
What is a presumptive offence?
An offence committed by a person 14 yrs or older, as fixed by the province, of 1st or 2nd degree murder, attempt to commit murder, manslaughter, aggravated sexual assault or serious violent offence for which an adult could be sentenced > 2 yrs
what is a serious violent offence?
An offence in the commission of which a young person causes or attempts to cause serious bodily harm
Offences that occur ON a birthday (18th) are presumed to be committed as...
a youth, rather than an adult
What is a precharge screening?
A provision for the AG to set up a protocol to be followed before a youth is charged with an offence; alberta doesn't have such a procedure in place
Can bail be denied to a young offender?
Yes, same as adults - except there is a special section where the youth can be placed in an adult's care if the judge is convinced the adultl can look after them and the youth is willing to be placed in their care
Sectn 39 says youths should not be committed to custody unless:
1. young person has committed a violent offence
2. young person has failed to comply with non-custodil sentences
3. young person committed an offence to which an adult would be liable for imprisonment for 2+ yrs AND has a history tht indicates a pattern of findings of guilt
Search warrants are based on a
balance of probabilities
Anniversary of charter being brought into force:
April 17th (25 years)
Due process has three separate meanings:
-In accordance w/ the written law
-Procedural due process
-Substantive due process
What is offensivev?
if it violates a basic tenet (principle) of our legal system
Constructive Murder (or "Felony Murder Rule in the US)
If in the course of commiting a in indictable offence, a death occurs, you are then liable for that death, b/c you have a "deemed intent"
**The definition of discrimination
If a law's distinction causes you a burden, disadvantage, or obligation/denies opportunity that others don't have, if it relates to a person characteristic, is one of the listed enumerations in s.15 or is analagous to one of the listed groups
Can you have a sentence with probation, fine and jail?
No, must only pick 2.
The main event in the criminal justice system
trials
the "opening act" in the criminal justice system
preliminary inquiry
the "reviewS" in the criminal justice system
appeals
Who is a critic of the criminal justice system?
everyone
The official name given to the review
certiorari
Based on the merits of the case with respect to either convictions or acquittals. The merits are related to eiher issue of law alone (crown) or the mixed fact and law (accused). Both parties are restricted to evidence called at trial, except in unusual situations.
appeal
In any appeal, what is the only route of appeal for the crown?
law alone
In an appeal, what is the route of appeal for the accused?
mixed fact and law
How can new evidence from the trial be brought in for the appeal?
Application must be made to the appeal court.
Where the main battles over admissability of evidence and credibility of witnesses hav to be fought.
trial
Does the trial have a certain specified order?
Yes.
Exam in chief (no leading questions)
Defense - cross exam
Two main types of evidence at a trial
testimonial
demonstrative
what it testimonial evidence?
evidene given by words - either witness on stand or written stataements and affadavits
What is demonstrative evidence?
Provided by documents; banking records, business records, pictures, videos and tapes, drawings and maps
What is opinion evidence?
usually not allowed; except for non exports (ordinary); experts
Can the preliminary inquiry judge assess weight to evidence?
no
What is the trial judge's main job?
To assess weight to evidence and make findings of credibility (the opposite of a prelim inquiry judge!)
Can the court use the accused silence to bolster the crown's case?
no
Can there be a jury in the provincial court?
no
How are provincial judges appointed?
by the provincial government on recommendation from a judicial committee
Now, all provincial court judges have to be lawyers for at least
10 years
All CQB judges have to be lawyers with a min of ?? years experience
10
How are QUEEN'S BENCH judges appointed?
Appoint4ed by the federal government, based on recommendation of a judicial committee, but with the final say left up to the minister of justice and cabinet
A judge along in a trial must decide:
1) the law that applies to the case
2) the credibility of the witnesses
3) whether the burden of proof has been met
The names of jurors are chosen randomly from a database made up out of?
property rolls, electors and driver registration databases
In Edmonton, jurors are selected and rejected for Jury duty on which date?
The Thursday before the date is set for trial
If the defence elects to call no evidence, they get to speak last; if they do call evidence,
they have to speak first
What happens in the case of a hung jury?
If the judge can't get them to try and reach an agreement, a mistrial is declared, and the offence is sent back to the start again.
To jurors have any input into sentecning?
no, except in cases of 2nd degree murder (make a suggestion as to when they are eligible for parole)
often called 'trial within a trial'
voir dire
Only isue in this procedure is wehther or not the evidence proposed to be put in meets the legal requirements for admissability
voir dire
the most common voir dire is regarding
confessions by the accused; test is whether or not the crown can provev that the statement was mdae freely and voluntarily by a person with an operating mind
A major voir dire is the
charter voir dire
In the case of charter voir dire,
the applicant (almost always accused) is attempting to use section 24 of the charter, usually exclusion of evidence b/c of breach of either section 8 (search and seizure) or section 10 (right to counsel)
Usually made for a breach of section 11(b), trial within a reasonable time, and called the
Askov application
With the Askov application, the defence has to show that... and the ULTIMATE question..
a major part of the delay has been a fault of the Crown, or the system...
the ULTIMATE question is whether the delay has affected the fairness of the trial
R. v Stinchcombe said
Its the crowns responsibility to disclose to the accused all the evidence that could be relevant, whethe ror not it's inteded by the crown to prove the case against the accused
section 7, full answer and defence, include?
disclosure, restriction on govt reducing/elim defences, shifting burden of proof to accused, abuse of process, righ to silence and protection against admissibility or self-incriminating evidence
section 8 - unreasonable search or seizure includes?
warrantless search; issues with reasonable expectation of privacy;etc
section 9 - unreasonable detention or arrest (random traffic stops are abitrary detentions, but...)
they are saved by section 1 defence where for CLEARLY ARBITRATED PURPOSES in legislation that meets pressing and substantial concern. Items seized after unreasonable arrest are liable to be excluded.
In section 10, two sections
a) right to be informed of reason for arrest (not used much)
b) allowed to retain and instruct counsel without delay (used lots)
What is a Bridges warning
Police are required to advise suspects of a provincial system of legal aid, and advise the how to get in touch with that service
What is the main case in section 11 (b) tried within a reasonable time?
Askov case
Section 11 ALSO includes
double jeopardy;
reasonable bail section;
right to be tried by a jury when punishment is 4 yrs or more;
presumed innocent until proven guilty;
fair and public hearing& impartial tribunal
Under what circumstances can you take more time to get legal aid?
If in drinking & driving, breathylizer given right away, not going to wait for lawyer
These courts are statuatory courts, and therefore only have the powers specifically given to them by the legislature that created them
appeal courts
three evels of appeal in the criminal context;
a) court of queen's bench from summary conviction matters
b) Alberta court of appeal
c) Supreme Court of Canada
is leave to appeal required for appeals of summary conviction to court of queen's bench?
no
is leave to appeal required to appeals to the court of appeal of alberta? if so, which ones?
yes, some of them
1) all sentence appeals
2) if issue involves mixed fact and law
3) against any ground of appeal not covered by questions of law alone (where no leave required) or mixed fact and law.
When can you appeal to the Supreme Court of Canada by right?
-When dissent on the Court of Appeal
(and ONLY on issues of LAW for both crown and accused!)
the appeal court can:
allow appeal and order a new trial;
dismiss the appeal and leave verdict as was;If a jury
direct an acquittal
If a jury acquitted someone, could the court of appeal enter a verdict of guilty instead?
no; only if judge alone
Tests for bail pending appeal
1) appeal not frivolous
2) appellant will show up for court when required
3) detention is not neccessary in the public interest
Do Courts of Appeal hear witnesses?
no
This section was introduced so errors of law that didn't cause an unfair trial would not lead to a new trial if there was no substantial wrong or miscarriage of justice that occured b/c of that error
Section 686(1)(b)(iii)
What is oath helping?
The fact that the witness has made a statement consistent with his/her testimony on the stand is not usually relevant
What is direct evidence?
A teswtimony about something the witness has seen heard, felt, smelled, etc.;
Also things like footprints, fibres, blood samples, photographs...
This is responsible for more wrongful convictions than any other issue
identification evidence
Circumstantial evidence
Really direct evidence that can lead to an inference relating to a factor in the case; each fact in the chain must be proven beyond a reasonable doubt
The profferred evidene of words, not spoken or written by the person on the stand, for the truth of its contents
heresay
What is a KGB statemtn?
After the case it came from, a Kahn statement, it is used with statements made by child witnesses, and by persons now deceased. Court has to decide that the entry of heresay is neccessary and that there are some surrounding guarantees of the statements reliability
Can the spouse of the accused testify if they want to?
no
Can the spouse of the defence testify?
yes, but not compelled to do so
Credibility has two main components:
1) was the person in that position to make the observations that are claimed, and was the situation such that such observations can be accurate;
2) would the witness have any reason to lie/exaggerate-do they have an intrest in the outcome?
What is a Vetrovic warning?
in special cases, regarding the fact that the trier of fact should take special care in assessing the rediblity of the witness, and should look for other confirming evidence before basing a conviction on that type of evidence
What does privilege mean?
There are compelling societal reasons taht the information protected by priveledge should not be revealed
In respect to sexual assault cases, priveledge can only be breahed if the accused satisfies the court that factors in sections ??? have been satisfied.
278.1-278.9
Is any priveledge present where the communication between lawyer and client is in furtherance of a crimme?
no
R v. OConnor was regarding
disclosure of medical records;
court held that medical and counselling records of a complaintant in a sex assault case that were held by a third party can only be diclosed if meeting 2 requirements:
1) relevancy to case
2) judge must review and decide based on balancing b/t right to privacy and right to make full answer and defense
R v. Ewanchuk
Case of sexual assault; court held that there was no defense of implied consent (Ewanchuck/17 yr old/controversy)
R v. City of Sault Ste Marie
Court defined three type of criminal offences and justification for "public welfare offences"
1. true crimes - require some positive state of mind (mens rea) as element
2. strict liability - do not require mens rea; act alone is punishable, but can use due diligence defense
3. absolute liability - dont require proof of mens rea either, but no defences available
AG of Canada and Dupond v. City of Montreal
Re the disorderly conduct during public Parades; Court agreed with city in their favor - law wasn't criminal in nature as it was prevantative and not punitive
R v. Hydro-Quebec
Held that the Canadian Envir. Protection act, was a valid federal legislation;
Rio Hotel v. New brunswick liquor licensing board
Re: liquor licenses being tied to degree of nudity. Held that provincial law that restricted amt of nudity in bars was consitutionally valid
R v. Mills
Court upheld a newly enacted rape law when challenged. Mills was accused charge; counsel for mills obtained medical records from counselling organization, court decided he couldn't have access, as provisions were constitutuional
R v. Edwards Books and Art Ltd.
Constitutional validity of closing law; four ontario retail stores were charged with violating retail business holidays act; three b/c of economic and 1 for religious regions. Court found law was within the province's jurisdiction, struck down the three but allowed Nortown's appeal (religious)
Dagenais v. CBC
Re; sexual assault in Christian school and freedom of press; ruled that ban of publicity restricted freedom of press
The four prerogative writs
certiorari ~quashing
habeas corpus
mandamus - manditory orders
prohibition - prohibiting orders
R v. Big M Drug mart
Case first in const. law to interpret section 2. Lord's Day act was struct down as unconstitutional; section 2 applies to everyone, including a corporation
R. vs. Stinchcombe
Landmark case; disclosure of evidencec; crown must show all evidence they even are thinking of using beforehand.