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Definition
| values the protection of society through deterring crime. Equates protecting the public with the certainty of punishment, following the commission of a crime. Strives to maximize efficiency with which the justice system can detect, investigate, and then punish crime. |
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Term
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Definition
| Values the preservation of individual liberty by maximizing the procedural protections of an accused during the course of a criminal prosecution. Insists that the state have a reliable foundation upon which to justify punishing the accused. |
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| The federal criminal law power for the purposes of federalism |
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Definition
| Prohibition with penalty that is directed at a legitimate public purpose (protecting harm, whether self-inflicted harm or harm to society at large), is a legitimate criminal law purpose under the Margarine Ref. test |
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| Power of the province's on criminal law |
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Definition
| The province's have power over the administration of justice under s. 92.14, as well as the jurisdiction enforce laws enacted under other provincial jurisdiction through criminal offences |
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Term
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Definition
| As per R. v. Libman, Canada has territorial jurisdiction over a criminal offence of the criminal act has a real and substantial connection to Canada. This means that Canada can have territorial jurisdiction even if parts of the crime occurred in different jurisdictions, as long as there is a real and substantial connection to Canada |
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Term
| Two limits on jurisdiction |
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Definition
1. When a state enacts a new criminal offence, it applies only to prohibited acts that occur after passing of the legislation.
2. If there is a difference between the prescribed punishments for an offence at the time the accused committed the offence, and when the accused is sentenced, the accused is entitled to the lesser of the two punishments. |
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| The criminal law power for purposes of s.7 of the Charter |
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Definition
For any legal principle to be a 'principle of fundamental justice' there needs to be significant societal consensus that is fundamental to the way in which the legal system ought to fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person.
Law that are irrational or arbitrary will infringe on s.7 |
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Term
| Role of the common law in determining the outcome of a case |
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Definition
| Look to precedent, previous and authoritative cases will determine the outcome of cases |
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Term
| Rules for Judicial Interpretation of Criminal Legislation |
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Definition
1.) Interpretation according to plain meaning of the statutory language
2.) Interpretation according to the context (intent of legislative body and policy)
3.) Ambiguities in the language require construction in favour of the accused
4.) French and English wording may contain different meanings and can be selected in favour of the accused |
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Term
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Definition
| Less serious offences. Trial in a provincial court, with the max fine $5000 and max 6 months in prison. Accused does not need to be present during the proceedings. |
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Term
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Definition
| The crown has the decision of summary or indictable. May choose indictable if accused has priors, wants higher penalties, or wants accused to be present for the proceedings. |
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Definition
| Serious offence. Depending on seriousness of the alleged offence, will be in either a provincial court or superior court with judge and jury. Three kinds of offences: treason, felonies, misdemeanors. |
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Term
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Definition
| Decides what the facts are and whether they meet the legal tests (i.e beyond a reasonable doubt) |
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Definition
| Decides what the proper law is that is applicable to the case |
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Term
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Definition
| Burdens of persuasion. Always legally allocated to a party, such that that party must persuade the trier of fact to a standard of proof in order to obtain judgment in its favour. Proof of the essential elements of a case (actus reus and mens rea) beyond a reasonable doubt. Normally, crown has to disprove defenses beyond a reasonable doubt. |
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Term
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Definition
| practical incentives to lead evidence in support of your own case. Often arise in response to the strength of the other side's case. |
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Term
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Definition
| Burdens to adduce facts in support of an issue in order to have that be considered by the trier of fact. |
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Term
| The presumption of innocence |
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Definition
| If a law has the possible result that an accused can be convicted of an offence despite the trier of fact having a reasonable doubt, the law prima facie violates the Charter right to be presumed innocent. Prima facie violations can still be upheld as a reasonable limit under s.1 and the Oakes test. |
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Term
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Definition
In R. v. Oakes the SCC held that in order to justify infringing on a Charter right there must be:
1. A valid objective for infringing on the right. Needs to be specific and important to justify this.
2. Justifications: Minimal impairment, rational connection, salutory v. deleterious effects. |
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Term
| Section 8 of the Charter: Search and Seizure |
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Definition
| Everyone has the right against unreasonable search and seizure. Default rule: search and seizure must be permitted by prior and written authorization (warrant)provided by someone impartial and capable of acting in a judicial capacity to be considered reasonable. Authorization based on reasonable and probable grounds that the evidence, items, or people searched and seized will be found at the location if question. Search to be carried out in a reasonable fashion. |
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Term
| Exceptions where a warrant is not needed |
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Definition
1. Consent (accused must know of right to refuse consent, and be aware of the potential consequence's of consent)
2. Exigent circumstances (evidence would be lost, or harm would result if police took the time and effort to get a warrant)
3. Plain view
4. Search incidental to arrest |
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Term
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Definition
If evidence was obtained in such a way that infringed or denied rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that admission of it would bring the administration of justice into disrepute
Either charter violation by state agent, or obtained in a matter that violated charter. Must balance seriousness of breach with impact on accused's Charter protected interests, against society's interests in adjudication on the merits |
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Term
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Definition
| A criminal law drafted in such a way that the breadth of application exceeds what is necessary to pursue the objective. An overly broad law is a recipe for arbitrary and capricious use of state power. |
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Term
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Definition
| A criminal law drafted with such vagueness that it is incapable of being subjected to meaningful debate in the legal community, law enforcement officials have insufficient guidance as to how and when to enforce the law, and citizens are left with insufficient guidance as to what behaviours will attract legal sanctions. |
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Term
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Definition
| A prescribed act, which is committed would constitute a criminal offence |
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Term
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Definition
| Rare. Unconstitutional to punish one for the acts of another. |
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Term
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Definition
| The actus reus must be preformed voluntarily, the mind must go with what the body is doing. Some causes can render an act involuntary, such as sleepwalking, automatism, reflex reactions etc. |
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Term
| Acting through an innocent agent |
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Definition
| Simply getting the agent to do the deed will not avail to allow the accused that he or she preformed the Actus Reus. It will be deemed as though the accused did the deed him or herself. |
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Term
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Definition
| Possessing an illegal object can be an Actus Reus for some offences. Defined in the CC. Common law interpretations require a level of control over the item, and does not include temporary possession with the innocent intent to divest. |
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Term
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Definition
Consent is voided by fraud re: nature of act, identity, and where there is risk of harm to the victim by sexual contact.
SCC interpretations: a person cannot consent to SERIOUS bodily harm, a person cannot consent to acts which would otherwise amount to criminal assault during activity, and if the assault causes bodily harm that exceeds social activity of the activity, then there is no consent and the accused may be prosecuted for criminal assault. |
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Term
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Definition
There is no criminal liability for a failure to act unless there is specific legal (not moral) duty to act, and the accused fails to act in accordance with that duty.
Common law: when a person creates a situation of danger, the person falls under a legal duty to rectify that situation. |
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Term
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Definition
| Not a general duty to speak to the police, it requires an overt action on the part of the accused (attempt to lie, bribe, etc) |
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Term
| Legal duty to provide the necessities of life |
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Definition
| Duty in CC 215 to provide for those under your charge with the necessities of life. Judicial interpretation of 'under his charge' of looking at position of parties and their ability to understand and appreciate the circumstance's, and look at whether the accused explicitly assumed responsibility for the other by entering into a legal relationship whereby the accused was under a legal duty to care by publicly acknowledging to others in the community by words or conduct an assumption of responsibility for the other. |
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Term
| Subjective standards of Mens Rea |
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Definition
| Concerned with what the accused actually thought/knew/intended/believed etc. |
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Term
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Definition
| the accused intended to commit the act itself |
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Term
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Definition
| the accused not only intended to commit the act itself, but also intended that the act produce a consequence beyond the act itself. |
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Term
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Definition
| Knowledge of the circumstance's surrounding an action such that the accused can be found guilty of a crime |
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Term
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Definition
| Knowledge of a risk, and proceeding with a course of conduct that involves the risk regardless |
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Term
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Definition
The accused becomes aware that circumstance's are suspicious, or may not be what he or she initially assumed. The accused must then make further inquiries in order to clarify or gain proper knowledge of the circumstances. The accused declines to make inquiries, because he or she would prefer to remain ignorant.
Will substitute for actual knowledge. |
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Term
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Definition
| Not concerned with what the accused knew, thought, intended, believed etc. but an inquiry into what the reasonable person would have done, or not done, in place of the accused. |
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Term
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Definition
An offence that requires a subjective Mens Rea for the initial act, but requires only objective foresight of the consequence of the action
i.e.) assault causing bodily harm, manslaughter |
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Term
| Actus Reus/Mens Rea of Assault |
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Definition
A: Accused must apply force to the person of the victim. Victim does not consent to the force.
M: The accused intentionally applied force to the person of the victimized, the accused knew the victim did not consent to application of the force, and willful blindness can substitute actual knowledge of consent. |
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| Actus Reus/Mens Rea of Criminal Harassment |
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Definition
A: Engaging in the kinds of conduct outlined in CC 264 in the absence of lawful authority.
M: Knowledge the victim was harassed and fears for his/her safety, reckless to whether the victim was harassed and fears for his/her safety, willful blindness may sub knowledge |
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Term
| Actus Reus/Mens Rea of Possession of Stolen Property |
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Definition
A: Accused in possession of property that has been stolen, possession requires a measure of control over the property, does not include temporary possession with intent to divest.
M: Knowledge of the possession, and with consent of the accused, knowledge the property has been stolen, willful blindness may substitute actual knowledge on the issue of whether the item was stolen. |
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Term
| Actus Reus and Mens Rea of possession of a narcotic under CDSA |
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Definition
A: Accused is in possession of a narcotic prohibited under CDSA. Possession requires a measure of control over the narcotic. Does not include temporary possession with intent to divest
M: Knowledge of the possession, and with consent of accused. Knowledge the substance is a narcotic, not necessarily knowledge as to specific narcotic. Willful blindness may substitute for knowledge. |
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Term
| Crimes with an objective fault standard |
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Definition
| Penal negligence, the mens rea represents a marked departure from the standards of a reasonable person. Higher degree of negligence needed than in a civil action. |
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Term
| Test for causation of manslaughter |
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Definition
| Was the contributing cause beyond a de minimis range? |
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Term
| An intervening act in manslaughter |
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Definition
| can break the chain of causation. a defense. |
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Term
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Definition
| Causation not voided simply because the victim had a condition that made him or her unusually vulnerable to death. The law takes the victim as it finds them. |
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Term
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Definition
CC 210; conduct that involves:
1.) harm to those whose autonomy and liberty may be restricted by being confronted by inappropriate conduct
2.) harm to society by predisposing others to anti-social conduct
3.) harm to individuals participating in conduct
AND incompatible with the proper functioning of society |
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Term
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Definition
| more recent cases tend to have greater persuasive value than more dated ones |
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Term
| Section 8 protects reasonable expectations of privacy, such as: |
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Definition
1.) presence at time of search
2.) possession of property searched
3.) ownership of property
4.) historical use of the property
5.) ability to regulate
6.) existence of a subjective expectation of privacy
7.) objective reasonableness of that subjective expectation
8.) reasonableness or expectation to be assessed on totality of circumstance's |
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