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203 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Define Offence |
an illegal action |
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Define Charge |
claim that the person committed an offence |
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Why is criminal law different from tort law? |
Criminal law deals with crimes, while tort deals with issues between individuals. |
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Define crime |
act that is considered wrong against society |
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Define tort |
act that is considered wrong against individual |
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What's the difference between assault and battery? |
Assault is a charge while battery is a tort. |
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Define Crown Prosecutor
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lawyer hired by the provincial government to prosecute people who have been charged with an offence(s).
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Crown Prosecutor is also referred to as: |
The Crown The Prosecutor The Agent of the Attorney General |
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How and when is a criminal file opened?
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File is opened at CP office when a charge is laid by the Calgary Police Service or the RCMP
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Because files are organized by court dates what can you do? |
Ensure that your correspondence with the prosecutor's office includes the next court date, time, and location along with including the last of these. |
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List two types of Crown Prosecutors: |
Provincial Crown Prosecutor Federal Crown Presecutor |
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Who do Provincial Crown Prosecutors work for? |
Alberta Justice |
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What cases do Provincial Crown Prosecutors handle? |
All charges in Youth Justice Court Criminal Code charges in both the Provincial Court and Queen's Bench levels of adult court Quasi-Criminal charges against adults |
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Define Quasi-Criminal Charges:
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a summary offence clients do not leave with criminal records if convicted, mens rea does not need to be proved
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Federal Crown Prosecutors work for this office:
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Public Prosecution Service of Canada
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PPSC
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What cases do Federal Crown Prosecutors handle? |
criminal charges against adults in both provincial and Queen's Bench court |
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What are some federal acts FCP use? |
Controlled Drugs and Substances Act Immigration Act Income Tax Act Customs and Excise Act |
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Do federal prosecutors work for the federal government? |
No, criminal cases are not heard in federal court. |
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Define Defence Counsel: |
lawyer retained to defend a person who is charged with an offence |
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What are the ethical obligations for defence lawyers? |
1. obtain proper instructions from the client at each step before the proceeding 2. not to mislead the court 3. not to allow the client or anyone else to commit perjury |
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What are the two levels of Justices of the Peace in Alberta? |
Full time JPs who are lawyers and are commonly called Hearing Officers or Traffic Commissioners if sitting in Traffic Court
Senior Government Clerks |
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What powers do Alberta Justices of the Peace NOT have? |
They cannot hear cases nor make decisions in court |
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What powers do Alberta JP's have? |
hear bail applications (judicial interim release applications made out-of-court to decide whether to release or detain an accused) receive Informations issue subpoenas issue search warrants administer oaths or affirmations or take declarations adjourn cases where a judge of the PC or a Traffic Commissioner is not present
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What are some things a legal assistant will be doing when working on criminal cases?
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opening, organizing files, correspondence, handle financial matters - deposit, maintenance, receipt of trust funds, schedule some trial dates, prepare trial binders, etc.
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What's the difference working in litigation v. criminal as a legal assistant? |
less paperwork in criminal, clients are nicer, need to work well with little to no supervision, handle mature subject matter, schedule trial dates, etc |
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Why is there overlap between the federal and provincial system in criminal law? |
Criminal law and procedure are federal responsibilities while the power to create courts to enforce criminal law and to enforce provincial legislation is the provincial responsibility This means offences are never prosecuted through federal court but federal governments determine whether or not an offence is a crime. |
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Define "dual procedure" (hybrid) |
offences that may be serious in some situations and less in others |
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If a charge does not state what type of offence it is then what offence is it? |
Summary |
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Define Crown's Election |
Prosecutor decides whether to proceed by indictment or summary procedure in court for dual procedure offences. |
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Who decides the offence in dual procedure offences? What is this decision called? |
Prosecutor Crown's Election |
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Where do you appeal summary conviction trials? |
Court of Queen's Bench |
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What is usually the limitation period for summary conviction offences? |
Six-month period unless charge changes that. After the limitation period you are statute-barred. |
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Summary Conviction offences usually include these type of offences: |
quasi-criminal offences |
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Define Quasi-Criminal Offences |
a provincial offence included within summary offences - the important difference is that if convicted you will NOT have a criminal record unlike smaller summary convictions such as carrying less than 30 grams of marijuana. |
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Most criminal offences are these type of offences: |
Dual Procedure |
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Define endorsement:
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handwritten notes on the Information made by the Court Clerk and sets out what happened at each court appearance.
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what happened
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Each indictable offence has a maximum punishment of a period of incarceration which can be:
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2, 5, 10, 14 years or life in custody.
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5
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Indictable offences are always appealed at this court regardless of what court the original case was heard: |
Court of Appeal |
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What is the limitation period for most indictable offences? |
there is no limitation period |
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List three types of Indictable Offences:
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absolute jurisdiction of the provincial court
indictable election offences exclusive jurisdiction of the Court of Queen's Bench |
absolute election exclusive
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Define Absolute Jurisdiction of the Provincial Court: |
553 offences which means your client has no choice (or election) as to the mode of trial as it is a less serious indictable offence |
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Define mode of trial:
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type of trial, including in which level of court the trial is held and whether or not a jury hears the case
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3 type
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Define Exclusive Jurisdiction of the Court of Queen's Bench |
469 offences which are the most serious of indictable offences which means it must be tried at Court of Queen's Bench however, the first appearance is always at Provincial Court |
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Define Indictable Election offence: |
Offence that is neither 553 or 469. Your client can choose the mode of trial which means your client has the choice to be tried by a PC Judge, QBJ without a jury or QBJ with a jury. |
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Define Accused's Election |
client's choice to mode of trial |
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Election refers to two things what are they? |
Crown's Election - Summary or Indictment conviction (for dual procedure offence) and Accused's Election - client's right to mode of trial in indictable election offences |
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List the four trial courts that hear criminal charges: |
PC, traffic division (quasi-criminal) PC, criminal division (criminal) PC, youth division (charges in which accused is 12-17) QB (serious crimes) |
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Define Traffic Commissioner: |
senior lawyer not judge appointed by provincial government to hear cases in traffic court - referred to as Your Worship |
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In PC what criminal cases do you not hear and how to you refer to the PC Judge? |
"Your Honour" and charges within 469 of the Criminal Code |
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In QB judges are referred to as and this court can have a ____. |
my lord/lady mr/madam justice |
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Define Information
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written sworn statement used to start a criminal case in provincial court - usually by police officers
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Statement of Claim
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Define Informant |
person who swears the Information with a Justice of the Peace |
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Define count |
Each charge in an Information |
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Who can be charged in an Information? |
Perpetrator Party to an offence (aids or abets) Accessory after the fact |
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Define aid |
assist the perpetrator |
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Define abet |
encourage the perpetrator to commit the offence |
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Define accessory after the fact |
person who receives, comforts, or assists a party to an offence so that the criminal can escape |
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Define to wit |
that is to say |
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Why must charges in an Information be precisely worded? |
The Crown is required to prove every word beyond a reasonable doubt |
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Every count must contain all of the following: |
date on which the offence occurred "on or about" jurisdiction or place where the offence occurred "at or near" identity of the accused name of victim, section and act which your client was charged, details |
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All criminal charges start with this document which is laid out by an informant before this person |
Information Justice of the Peace |
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If your client is not held in custody list the documents used to compel client to attend court: |
Summons appearance notice promise to appear undertaking recognizance |
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When is a summons/arrest warrant used? |
When new charges are laid to the accused unaware and it's less serious or there is a risk of them running away due to serious nature of the charge |
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If the accused is present when the charges are made they will be released on an... |
Appearance NOtice |
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If the accused is arrested then released they may be given on of the following documents: |
Promise to Appear - unconditionally released on charges Undertaking - released on conditions Re-cog-ni-zance - released on conditions with money |
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Define Recognizance with no cash deposit |
released on conditions with money that must be paid if client does not comply with conditions of release |
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Define Recognizance with Deposit |
released on conditions but must pay money BEFORE being released |
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Define surety |
someone who pays for the accused in a recognizance |
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Who are the parties in a criminal case? |
government represented by a Crown prosecutor who prosecutes the accused for a crime |
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What is the style of case in a criminal case? |
R. v. Accused or Her Majesty the Queen v. Accused |
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What is the Standard of Proof in a criminal case? |
Beyond a reasonable doubt |
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What is the verdict of a criminal case? |
Guilty v. Not Guilty |
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What is the originating document in a criminal case? |
Information |
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What is the remedy in a criminal case? |
Fine paid to the Crown, jail, etc |
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When does the Charter of Rights and Freedom apply? |
When the government is involved which means ALWAYS in criminal. |
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What does the Canada Evidence Act set out? |
Rules of evidence that include admissibility of documents and competence and compellability of witnesses |
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What does the Canadian Charter of Rights and Freedoms set out? |
rights and freedoms that apply to all charges |
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What does Controlled Drugs and Substances Act set out? |
drug offences and some procedures for dealing with drug offences |
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Corrections and Conditional Release Act sets out what? |
Rules for dealing with prisoners, including release of prisoners |
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What does the Immigration Act set out |
regulates admission of people in Canada |
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What does Income Tax Act regulate |
taxation of individuals and businesses and creates criminal offences |
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What does Youth Criminal Justice Act set out? |
procedures for dealing with charges against persons between the ages of 12-18 |
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What is the Alberta legislation dealing with driving regulation called? |
Traffic Safety Act |
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Traffic Safety act creates what time of criminal offence? |
quasi-criminal |
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Where is contempt of court a crime? |
Under common law |
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Define murder |
intentionally killing a person |
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Define First-Degree Murder |
planned killing |
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Define Second-Degree Murder |
impulsive, deliberate killing that is not pre-planned |
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Second-Degree murder is also called |
a lesser and included offence to murder |
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Define manslaughter |
death was not intended 236 |
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Dangerous operation of a motor vehicle is usually called |
Dangerous Driving |
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What is the alcohol limit? |
driving with more than 80 milligrams of alcohol in 100 millilitres of blood |
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Define Certificate of Analyst |
breathalyzer test administered |
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How do you obtain a charge on impaired driving? |
Prove accused was operating a motor vehicle while displaying physical signs of impairment such as staggering, slurred speech, bloodshot eyes, and perhaps the smell of alcohol or a drug |
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In terms of theft what must the Crown prove? |
value of property involved client intentionally took property that belongs to someone else client did this know the property belonged to someone else and that they had no right to take the property |
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What does it mean if your theft offence is in section 334 a of the criminal code? |
it is valued over $5000 |
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What is joyriding? |
taking someone's car for a ride without their consent which can be found under section 335 of the Criminal Code
this offence is lesser and included to section 334 |
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What is the difference between robbery and theft? |
Robbery is is theft combined with assault |
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What is breaking and entering? |
Usually tort if entering and breaking to look for warm place to sleep. |
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What must the Crown prove with possession of stolen property? |
the possession occurred very close to the time that the property was stolen or that there are other circumstances that would indicate that the accused knew the property was stolen that the accused had control over the property and that he or she knew what the property was |
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What is fraud? |
lying to get something (writing a bad cheque) split between over/under $5000 |
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What is mischief? |
destroying or damaging property |
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What must a crown prove in terms of possession of a controlled substance? |
your client had control of the substance and was aware of what the substance was
*schedule 1 is serious drugs like cocaine *schedule 4 meh |
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What is trafficking or possession for the purpose of trafficking? How must a crown prove this? |
selling or giving an illegal drug to another person, crown must prove the drug was actually provided to another person |
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What requirements/elements must be proven beyond a reasonable doubt for offences? |
Actus Reus and Mens Rea |
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Define Acus Reus |
(wrongful act) crown must prove the accused committed the physical actions of the crime |
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Define Mens Rea |
crown must prove the existence of a "guilty mind" (prove crime committed on purpose) |
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List three different types of mens rea |
general intention, specific intention, and recklessness or willful blindess |
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Most crimes are general intention which means the crown will be required to prove that... |
your client committed the crime on purpose (mens rea) |
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Specific intention offences means the crown has to prove more in terms of mens rea like |
there was a general intention or an intention to commit the prohibited act there was an intention to achieve a certain result "intention to commit actus reus" |
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What are examples where specific intention would have to be proved? |
-1st, 2nd degree murder -theft, robbery, breaking and entering -possession for purpose of trafficking
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What are some examples where general intention would have to be proved? |
-manslaughter -dangerous operation of a motor vehicle, impaired driving, joyriding -assault, sexual assault -Fraud -Possession of Controlled Substance |
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Define Willful Blindness |
accused is aware that there was a need to ask questions but chose not to ask any questions because he or she did not want to know the truth |
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In terms of mens rea what do you have to prove with willful blindness or recklessness offences? |
less than a general intention |
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Define recklessness |
similar to willful blindness, where your client's actions are marked departure from the standard of a reasonable person |
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What are the two things that make quasi-criminal offences different from criminal offences |
-if convicted you will not have a record -crown is not required to prove mens rea |
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Define strict liability |
action or actus reus is proven your client is guilty unless the defence of due diligence is proven by your client on a balance of probabilities
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Define due diligence |
person acted as a reasonable person would have under an honest but mistaken belief in facts that would have justified the action "you did everything you could do to prevent actus reus" |
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Strict liability is only available to this defence, why? |
Quasi-criminal offences because it would be a violation of the Charter of Rights and Freedoms to receive a criminal record on a strict liability offence |
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Define absolute liability |
if the actus reus occurred, the person is guilty, even if he or she did everything that could be done to prevent the offence from occurring |
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What is the limitation period and maximum penalty if you have a summary offence? |
6 months, 6 months or $5000 |
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What is the name of the court where trial occurs and where can you appeal in summary offences? |
Provincial Court Court of Appeal |
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What is the maximum sentence for a quasi-criminal offence? |
up to six months in jail |
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If there is a possibility of imprisonment what have the courts decided in terms of absolute liability offences? |
it is unconstitutional to have an absolute liability offence |
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In terms of competency what two questions are raised? |
- accused mentally competent to stand trial? - accused mentally competent at the time of the offence |
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Define fitness to stand trial: |
the issue of whether or not the accused is mentally competent to stand trial the crown, defence, and judge can raise this issue |
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In order to be fit to stand trial the accused must be: |
capable of understanding the court proceedings and the consequences of the court proceedings capable of instructing counsel |
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What is an assessment? |
accused consents to remain in custody for 30-60 days to see if they are fit to stand trial |
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For criminal cases all reports must be filed... |
at the prosecutor and the defence counsel and court |
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What is direct examination |
when the lawyer questions his or her own witness |
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If the accused is deemed not fit for trial what happens? |
they will be confined to a facility for treatment - their detention reviewed periodically to determine when they will be fit |
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What's the difference between withdrawing and staying the charges? |
Withdrawing the charges ends the charges while staying the charges halts prosecution of the charges |
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If the accused is fit to stand trial they can still use the defence of |
mental disorder at the time the offence was committed |
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If you are using the defence of mental disorder the court must decide two things |
if the accused suffered from a mental disorder at the time the crime occurred did it make them incapable of appreciating the nature and quality of the act or omission or knowing that it was wrong |
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What is the legal definition of Defence of Mental Disorder |
if court determines that the accused suffered from a mental disorder at the time the offence was committed then they will be found "not criminally responsible on account of mental disorder" |
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If a party raises the defence of mental disorder they must prove it on... |
a balance of probabilities which also means the accused must prove something rather than the Crown |
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Accused can use any defence that is set out in... |
statutes and common law defence |
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Defences can be complete or limited define these terms |
complete defence: leads to your client being found not guilty limited defence: client will be found not guilty to the original charge but be found guilty to a lesser and included offence |
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While the accused in a criminal offence must prove on a balance of probabilities for defence of mental disorder all other defences they accused is only required to... |
raise sufficient evidence to create a doubt |
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What are the two limited defences? |
voluntary intoxication and provacation |
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Define voluntary intoxication |
accused willingly consumed alcohol or drugs to the point that he or she was not aware of his or her actions |
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Where does voluntary intoxication originate from |
common law |
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Voluntary Intoxication is a defence that only applies to certain type of offence and the Criminal Code limits this defence: explain |
special intention offences this defence does not apply to offences involving assault or threats |
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If voluntary intoxication defence applies what will happen to the accused? |
found guilty of the lesser and included general intention offence |
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Define provocation and what type of defence it is |
limited defence only available to charge of murder wrongful act or insult that is sufficient to deprive an ordinary person of self-control "heat of the moment" |
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List all 8 complete defences |
Automatism Compulsion Consent Duress Necessity Self-Defence Mistake of Law Mistake of Fact
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Define Automatism |
accused had no control over his or her bodily movements when he or she committed the crime
common law defence |
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When can automatism occur? |
Sleepwalking, Seizure, Involuntary Intoxication - didn't know they were consuming drug or alcohol |
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If automatism is an accepted defence what happens to the accused? |
They will be found not guilty of their charges |
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Who can't use this defence? |
If accused suffers from mental disorder |
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Define Compulsion |
accused committed a crime because he or she was threatened with death or bodily harm unless he or she committed the crime crime originates from ccc |
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Compulsion cannot be used for |
defences mentioned under Section 17 of the Criminal Code |
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Define Duress what type of defence is it? |
when an accused participates as a party to an offence such as murder or robbery only because someone threatened to harm either the accused or his or her loved ones and the accused had no safe way of escaping other than to commit the crime complete and common law defence |
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How can one be successful by using Duress as a defence? |
by proving that the threat your client faced was more serious than the client's actions |
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If you are using duress with a mental disorder whose job is it to disprove? |
Defence not Crown |
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Due diligence is a defence used in... |
strict liability offences |
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What defence is used for absolute liability offences? |
none |
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Define Necessity and describe where this defence originates, what type of defence is it and what crimes it is not good for |
accused committed a crime in a situation of imminent danger so as to prevent a more serious situation common law and complete defence to be used for any crime |
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Define consent defence |
person who claims to be the victim of the crime in fact freely agreed to what occurred |
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You cannot use consent defence in what circumstances? |
death sexual assault charge involved somone that is under the age of 14 or victim was in a position of trust |
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Consent defence is a common law defence seen mostly with |
sexual assault or assault cases |
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Define self-defence |
COMPLETE DEFENCE set out in the criminal code there are different rules for the accused depending on who provoked the attack. |
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What is the rule for the accused if they use self-defence in an unprovoked attack? |
a person can use reasonable force to prevent an unprovoked attack even if this leads to injuries or death of another |
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What is the rule for the accused if they used self-defence in a provoked attack? |
accused had reasonable apprehension of death or greivous bodily harm and tried to retreat, but was unable to do so. |
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Define Mistake of Law defence |
not an actual defence but suggests that the accused honestly, but incorrectly, thought that what he or she was doing was legal |
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Define Mistake of fact defence |
this is a complete defence!!! means accused had an honest but mistaken belief in facts that would make his or her actions innocent (used in sexual assault and theft cases) |
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Difference between mistake of law and mistake of fact? |
mistake of fact is an actual complete defence |
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What's something to remember with defences? |
Accused only needs to raise a doubt not prove their defence |
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Define entrapment |
different from a defence because it means that the police or someone working for the police caused the accused to commit the crime |
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The accused must prove entrapment on... |
a balance of probabilities |
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If the accused can prove entrapment on a balance of probabilities then the judge will... |
permanently end the charges via stay the proceedings |
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Define stay the proceedings |
permanently end the charges |
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In order for the police to provide a person with the opportunity to commit a crime there must be either |
-a reasonable prior suspicion that the person was engaged in this type of crime -the situation must occur in an area where the type of crime being investigated is a problem |
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What are some things a judge will look into in an entrapment case other than what the police already have to prove? |
whether there were other ways to investigate the crime whether or not police provided opportunity or were so persuasive the victim committed the crime |
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Where are the legal rights found in the Charter? |
Section 7 - 14 |
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What does Section 7 say in the charter of rights and freedoms? |
it protects the right to life, liberty and security of a person - does not protect property |
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What does Section 8 of the charter state? |
guarantees everyone the right to be secure against unreasonable search and seizure (for person and property) |
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Define search according to the charter |
anything done to gather evidence against the accused |
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List the 7 reasonable ways a search can happen under the charter |
search warrant searched for weapons during arrest emergency exists thus justifying the search enforce impaired driving authorized provincial legislation informed consent to search proper wiretap warrant is obtained |
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Define search warrant |
authorization granted by a Justice of the Peace or Judge to peace officers to search for specific items in a place named in the warrant |
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Define wiretap warrant |
authorization granted to the police that allows the police to receive and record telephone calls and other private conversations (only QB can grant this)
if one party knows then PC can grant this |
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What does Section 9 of the Charter provide? |
protects against arbitrary detention or imprisonment |
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When does detention occur |
when an individual is not free to leave even if he or she has not been physically confined |
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What does Section 10 of the Charter provide? |
person has the right to be informed of the reasons for arrest, the right to consult with counsel, and the right to be informed of this right
also right to legal aid counsel, private consultation, anything said will be used against them, can remain silent, etc |
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Define habeus corpus |
crown must show that detention of the accused is lawful |
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What does Section 11 of the Charter state? |
accused's rights relating to criminal proceedings such as the right to be tried within a reasonable time, the right to be presumed innocent until proven guilty, and the right not to be tried for an offence for which your client was previously acquitted or found guilty |
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Define double jeopardy |
right to not be tried for an offence for which your client was previously acquitted or found guilty |
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In PC the accused should have their trial within... |
six to eight months |
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In QB the accused should have their trial within.. |
12 months |
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Section 11 does not apply to |
appeals |
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Define autrefois acquit |
a plea for accused that was previously acquitted on similar circumstances but being tried again |
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Define autrefois convict |
a peal for previous conviction |
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What does Section 12 of the Charter provide |
right to not be subjected to cruel and unusual punishment |
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Define Section 13 of the Charter |
accused has the right to not incriminate themself; however if they choose to talk then this is no longer protection |
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Section 33 is of the Charter is often called the |
"notwithstanding" section |
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If Defence wish to raise a constitutional argument at trial a written notice must be given to who and by what time? |
Clerk of the Court and the prosecutor at least 14 days before the scheduled court proceeding |
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A written notice involving a constitutional argument must set out what things? |
-alleged charter violation -circumstances surrounding violation -remedy that t he lawyer will be seeking -brief statement of the legal grounds of the argument |
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A constitutional notice is usually given how in PC and QB? |
PC: letter addressed to the Clerk of Court QB: A Notice of Motion with supporting Affidavit is filed |
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Define judicial stay of proceedings |
decision by a judge to permanently end charges (breach in charter for client) |
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If you want evidence excluded your lawyer must prove two things what are they? |
that the evidence was obtained in a way that breached the accused's rights and that admission of the evidence would bring the administration of justice in disrepute |
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The reason to exclude evidence must be proved on what scale? |
Balance of Probabilities |
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Define voir dire |
trial within a trial to determine the admissibility of evidence |
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What are four things the judge considers when deciding if the administration of justice would be in disrepute if evidence was admitted? |
whether the Charter breach was serious or minor whether the Charter breach was deliberate or accidental whether there was an emergency whether other investigative techniques are available |
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