Canadian Law Exam Review 2t6j3r

1

Law Exam Review Matthew Rieck Unit 1: Heritage 1. The Magna Carta played a role in the birth of common law by creating the rule of precedent. The rule of precedent stated that similar cases set the standards of the decisions by judges for the accused, meaning that similar crimes are treated in a similar way. First constitution (Gave people rights) and introduced common law (Same sentence for the same crime). 2. Stare decisis is relying on the decisions made by other courts when determining the outcome of similar cases. It was typically used by the defence to prove innocence. This was important to Canadian law, the accused, the victims, and the tort law litigants because it made sure that every similar case was treated with some degree of equality, and that a fair punishment (if any) was given to the accused. It can affect the outcome of a case depending on how other judges have ruled in the past (case law). Case law is referring to previous judges’ decisions in order to provide a similar and appropriate sentence. 3. Substantive law is the theory of law (aka the book), while procedural law is the process of law and the istration of justice. 4. The different types of law that are listed within public are: istrative law (related to the relationship between people and the government departments, boards and agencies), Criminal law (prohibits and punishes the behaviour that causes harm to others, like murder, robbery and assault). The different types of law that are listed within private are: Tort law (when someone is injured or harmed as a result of the negligent or deliberate actions of others, and the injured party seeks compensation from the wrongdoer). Contract law (provides rules regarding agreements between people and businesses, if one person fails to uphold the of the agreement, the other may seek out the court’s assistance to have the enforced). Family law (marriage, property division, custody and of children, and divorce). Wills and Estates (division and distribution of property after death, legally binding wills with what they want done with their property). Property law (ownership right in all property and transfer of real estate). Employment law (relations between employees and employers, child labour laws, safety rules and regulations).

2

5. Constitutional law overrides any other type of law. 6. A) Substantive B) Public C) Criminal 7. Executive Powers – Minister of justice is responsible for proposing new laws and ensuring that the existing laws are enforced. Also includes istrative branch which sets policies, isters laws, and controls government spending. This branch includes the Prime Minister, Cabinet, MPs, MPPs, and the Public / Civil service. Legislative Powers – Consists of the House of Commons and the Senate. The legislative branch is responsible for ing statute laws. The senate can defeat ed bills or send them back to the House of Commons if they feel it is necessary, because the senate has a large amount of power. This branch includes the MPs, MPPs, PM, and Cabinet (all of which make laws). Judicial Powers – Made up of justice or judges. They adjudicate, dispute, and interpret the law. They also decide punishments in the Canadian court system. The most powerful courts from highest to lowest are: Supreme Court of Canada  Provincial Court of Appeal  Superior Court  Provincial Court. Those involved judges / justice have the power to enforce laws and punish those who break it.

Unit 2: Rights and Freedoms 1. The Charter guarantees rights and freedoms but section 1 outlines that these rights are subject to “reasonable limits”. 2. Everyone has the right to be secure against unreasonable search or seizure. 3. The charter applies to all government action. It applies to both the federal and provincial governments and all organizations and agencies regulated by the federal government. The charter does not apply to PRIVATE action. This area is regulated by provincial human rights codes. 4. The sections of the charter are enforced by the judicial branch of the Canadian government.

3

5. Adult present when interrogated, name remains hidden from public, different courts and no jury. 6. The Ontario Human Rights Code guarantees equality. 7. Everyone has the right to freedom from discrimination in the following social areas: Services, Goods and Facilities (schools, hospitals, shops, restaurants, organizations, and facilities), Occupancy of accommodation (the place where you want to live, renting or owning), Contracts, Employment, hip in vocational associations in trade unions. 8. Grounds of discrimination are: race, ancestry (family decent), place of origin (country or region), colour (associated with race), ethnic origin (cultural, social, or religious practices), citizenship (hip in a state or nation), creed (religion or faith), sex (gender, pregnancy), sexual orientation, handicap, age (18-65), marital status, family status (parent / child relationship), same sex partnership status, criminal record or offences, receipt of public assistance (housing only). \ 9. Human Rights Code refers to private matters between people and companies, or people and other people, while the Charter deals with public matters such as criminal law. Human Rights examples would be discrimination on the basis of age, sex, etc. While criminal matters such as murder, or manslaughter would be dealt with by the Charter. 10. Harassment – a feeling of intense annoyance caused by being tormented Sexual Harassment – Harassment in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks Poisoned Environment – A negative work environment created by a form of harassment Constructive Discrimination – Employment policies that inadvertently exclude certain individuals, resulting in discrimination. Sometimes a rule or practice unintentionally singles out particular people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination. For example, an employer has a rule that male employees must be clean- shaven. Using this rule, the employer refuses to hire a Sikh man who, according to his religion, is not allowed to shave. The rule is not “intended” to exclude Sikh men from a job, but it has this effect. Unless an employer can show that a change or exception to the rule would

4

be too costly or create a health and safety danger, the employer should agree to change the rule.

Systematic / Direct Discrimination – Direct discrimination is discrimination based on colour, gender, or other characteristics or beliefs. You directly target the group. Undue Hardship – Costly to owner to hire someone (i.e. someone on a wheelchair would need ramps and elevators which could cost the company a lot of money and result in bankruptcy. 11. ???? 12. The Human Rights Complaint Process  Complaint  Response  Reply  Mediation  Conciliation  Hearing. 13. Prima facie is the first thing you need to establish when filing a complaint. Prima facie means facts of the case. First you establish that you were qualified for the position. Then, you establish that you were not hired. Finally, you prove that someone else got the position (aggravating factor aka gravamen), because of discrimination (race, gender, colour, etc).

Unit 3: Criminal Law 1. The Actus Reus is the guilty act. (Whether a person acted illegal, or failed to act and broke the law). 2. The Mens Rea is the guilty mind. (The person knew what they were doing was illegal, and they did it anyway). 3. There are three types of intent. There is intent, specific intent, and general intent. Intent is the general will to do something. An example of specific intent is robbing a bank to kill a teller. General Intent is doing something because you want to (an example would be killing someone because you feel like it). The Mens Rea can only be established if the accused has knowledge of certain facts. 4. Judge – Responsible for deciding which evidence is issible. Interprets law for the jury, and manages the court room. Gives instruction to the jury on evidence and facts of

5

the case. If there is no jury the judge decides innocent / guilty and sentences the accused if he/she is convicted. Defence Counsel – The lawyer that represents an accused in trial and recommends an appropriate sentence if the accused is found guilty. Crown / Prosecution Counsel – Presents evidence that the accused is guilty beyond a reasonable doubt. The Crown Counsel works for the Attorney General. The Crown Counsel also has to show evidence that s a guilty verdict. The Crown Attorney can call witnesses for the crown only, and must disclose everything with the defence counsel. Witness – Witnesses testify their knowledge of the crime after being sworn in (if witnesses fail to tell the truth in court they can be found guilty of perjury). If a witness does not willingly come to court to be subpoenaed they can be held in contempt of court with a fine of $100 or imprisoned for 90 days. Jury – The jury is a group of 12 people who must find a defendant guilty beyond a reasonable doubt. All 12 people must agree with the decision. 5. The burden of proof is on the Crown in a criminal trial, because the crown has to prove that the accused is guilty beyond a reasonable doubt. 6. In the Jury System: Jurors are given the task of deciding if the Crown has proved the case against the accused beyond a reasonable doubt. As a juror you must listen intently in court to hear all the facts of the case, and must ignore anything heard outside the courtroom that pertains to the case (jurors are escorted by an officer of the court). If the crown has proved its case, the jury will find the defendant guilty of the charge. If the crown has not proved its case against the accused, the jury will find the defendant not guilty. The judge is responsible for explaining how the law applies to the case in question and tells the jury what they must consider before arriving at their verdict. A jury member is selected randomly from the voters list, however nobody involved with the government or related to someone who works for the government can be chosen for jury duty. There are no qualifications needed to be a member of the jury. In fact, it is better if the jury have no knowledge of the law. The head juror leads a juror. 7. An indictable offence is a very serious offence that is almost always tried with a judge and jury. A summary offence is a less – serious crime

6

8. Offences against the person (manslaughter, murder [1st and 2nd degree], homicide [culpable and non culpable], infanticide, assault [levels 1, 2,3], sexual assault [levels 1,2,3], and suicide). All of the above are indictable offences. Drug offences (possession, trafficking, and money laundering). Motor vehicle offences (Dangerous operation of a motor vehicle, failure to stop at the scene of an accident, impaired driving). Offences against property (theft, robbery, breaking and entering). Other offences (mischief, fraud, prostitution, gambling). 9. Perpetrator – The person that committed the crime. Aiding – When someone on the inside provides you with information that you would otherwise be unable to get/have access to. Information comes from an accomplice. Abetting – When you encourage someone to commit a crime. Counselling – When you provide general information about how to commit a crime. For example you teach someone how to hotwire a car. Accessory after the Fact – When you help the perpetrator hide/stash stolen goods after the crime has been committed (but with no prior knowledge of the crime.

10. You cannot be asked questions without an adult present, your identity is protected, you are detained separately from adults, and all trials are held in youth courts by a judge without a jury. 11. The YCJA was an improvement over previous youth legislation because it cleared up most of the problems from the young offenders act. The YOA had very few sentencing principles to guide judges; and there was a higher rate of custody under the YOA. 12. Age, criminal history, how the sentence would affect the offender (would he/she repeat). 13. Age, Criminal record of the accused, pre-sentence report, and the severity of the crime. 14. Mental disorder (disease of the mind formerly known as insanity), automatism – not having control over what your body does (insane [caused by a mental disorder] and non insane [caused by external factor like a concussion or recently prescribed medication]), Intoxication (not self induced). Other defences are mistakes of law (committing a crime while believing nothing wrong was done ignorance is not a defence, mistakes of fact ‘’,

7

double jeopardy (cannot be tried for the same offence, alibi (you were somewhere else when the crime was committed), entrapment (police aid or encourage the commission of the action), consent (victim of the crime has given consent for the criminal act to occur [play fighting, sexual assault, etc]). 15. The facts of the case are stated in both the opening (facts of case, theory of your case and what you are going to prove) and closing statements (what the law is, and how the evidence fits in with the law). 16. The questioning of a witness by the party that has called the witness to give evidence in order to the case that is being made. 17. Expert Evidence – is issible in court when the person giving the testimony is an expert who is acceptable to the court on the field of that evidence. Photographic and Recorded Evidence – must prove to be accurate representations of the facts they depict. The difficulty with photographic and recorded evidence is that it can be tampered with easily. Recorded evidence can be used only when the people talking do not have a reasonable expectation of privacy, and photographic evidence will be accepted when there is reasonable certainty that the photographic evidence is a real picture of events linked to the case. Similar Fact Evidence – Where an accused has committed similar criminal acts to those for which he or she is being tried. This evidence may be accepted as circumstantial evidence. Character Evidence – Person brings up the issue of his / her good character or reputation. Hearsay Evidence – Evidence of someone other than a witness who said or wrote something out of court that may be relevant to the facts of the case. Confession – Also known as direct evidence is the accused accepting guilt. 18.   

Protection of the public (protects citizens), Retribution (punishes the offender), Specific Deterrence (discourages criminals from reoffending),

8

  

General Deterrence (discourages the general public from breaking the law. Rehabilitation (treatment and training that will allow an offender to pay society back for the harm or loss suffered. Denunciation (punishment that shows the condemnation of the offender’s conduct.

19. Aggravating Factors are factors that may increase the severity of a sentence while mitigating factors will decrease the severity of a sentence. 20. Discharge, Absolute Discharge (no conditions and no penalty, you are let off the hook), Conditional Discharge (specific attached to it that must be met by the offender; there are conditions attached and if the conditions are breached there will be consequences. The accused has no criminal record if they are discharged but a record of the case is kept). Suspended Sentence (when a judge hands you a minimum sentence but you do not have to serve it in prison, however the accused still has a criminal record). Probation (a sentence is given by a judge for a set period of time. The offender serves the sentence in the community, must see a probation officer at set intervals of time, and respect certain conditions). Fines (a specific amount of money that the accused is required to pay for committing a specific crime). Restitution (An alternative that the court has to fines. The offender must pay back the victim for stolen, damaged, or destroyed property. 21. See # 22 for all sentences. 22. Both the Crown and the Defence recommend appropriate sentences to the judge. 23. Maximum security prison, Medium security prison, and minimum security prison. They are useful to society because they help integrate criminals back into society after they have completed their sentence. 24. Identify himself as a police officer; Must inform accused he is under arrest; must promptly inform accused of the charge; must show warrant if any; must read home/her Miranda rights and inform him of his right to counsel, they must touch the person they are arresting to show that they are in custody. 25. Class and Character evidence (General and specific characteristics). 26. Bodily fluids such as blood, semen, sweat, mucus, saliva, urine and DNA such as hair, and fingerprints.

9

27. Supreme Court is the highest; there is also the superior court of Canada, small claims courts, and the court of appeal.