15537114
Description
Flashcards by Taylor Anderson, updated more than 1 year ago
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Created by Taylor Anderson
about 6 years ago
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| Question | Answer |
| branches of government | 1. executive- Prime Minister and other Ministers 2. legislature - Has the power to make, alter, and repeal laws - Laws enacted are called statutes, legislation, or acts and originate as bills 3. judiciary- Interprets and applies the law |
| Charter of Rights and Freedoms | - proclaimed on April 17, 1982 - applies only to the actions of the government or government agencies - - include fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, language rights, minority rights, education rights, and Aboriginal rights |
| Notwithstanding clause | provincial can invoke if they disagree with CCRF usually for socially conservative reasons. Most will threaten to invoke. ex. Quebec'S Niqab law |
| Bijural system | draws on both English common law and French civil law Common, civil, and Indigenous |
| 3 branches of law | - Civil (private): governs between individuals and families - Criminal (public): governs individuals and society - Administrative: make regulations w/o proceeding through legislative process, interpret laws, determine standards |
| public law | • Governs relationship between individuals and society or the state • Includes criminal law, constitutional law, and administrative law |
| private law | • Governs relationships between individuals • Includes family law, contract law, and tort law |
| Burden and standard of proof | Civil cases—balance of probabilities - chance of the proposition being true is more than 50% (“more probable than not”) Criminal cases– beyond a reasonable doubt -Difficult to define. Essentially, it would be unreasonable to assume the proposition is false -Connected to presumption of innocence |
| Intervening party | - Make application and describe the interest, the intended submissions, the usefulness to the court and prejudice suffered if the motion is not granted - ex. a fresh perspective on constitutional or pubic issue |
| Amicus curiae | - A friend of the court—not a legal party to the case - An impartial aid to the judge - The court or a judge may appoint an amicus curiae where they believe the person or organization will provide a valuable expertise or perspective |
| Tort law | body of rights applied in civil (private) courts for people wronged by other individual‘s actions |
| court system (levels of court) | 1. Provincial/Territorial Courts- majority of cases, chief judge and 47 other judges 2. Provincial/Territorial Superior Courts (and Federal Court)- more serious crimes (Court of Queen’s Bench 3. Provincial/Territorial and Federal Courts of Appeal 4. Supreme Court of Canada- get here by appealing at every level |
| Circuit Court | courts in communities that don’t have a courthouse - 66 circuit points exist in small communities and on reserve around the province |
| Role of lawyers | - attorney-client/ lawyer-client/ solicitor-client privilege - Clients can disclose to their lawyer without fear of it being used against them, with some exceptions - Provinces have a governing body that licenses, regulates, and disciplines lawyers. - Competence/expertise in different areas Exceptions- if they are planning further crime, pose a clear risk to someone |
| Other ppl in the court | - Crown Attorney (Prosecutor)- employed by the province - Defense Counsel- give reasonable advice - Civil Litigator- individual or companies seek remedy from the tribunal ex. environmental law - Family Lawyer |
| 4 Cornerstones of Criminal Law | 1. Presumption of Innocence- innocent until proven guilty 2. Burden of Proof is on the Crown- up to the prosecution to prove guilt, not defense’s job to prove innocence 3. Reasonable Doubt- crown must prove beyond a reasonable doubt 4. Fair and Public Hearing- must know what charges are against them, evidence must be disclosed etc. |
| Adversarial Criminal Justice System | • Adversarial criminal justice system functions on the premise that every person is innocent until proven guilty beyond a reasonable doubt. • Judge, or a judge and jury, act as impartial arbiters to hear evidence and determine the culpability of the accused person. • Rules (or principles) of evidence assist judges in their determination of what evidence will be allowed in court. - It is better to have a guilty person free than a innocent person person locked up |
| Hierarchy of Evidence in the Criminal Justice System | Police can arrest on probable grounds Prosecutor’s mandate to proceed if they have a reasonable likelihood of conviction At trial, judge determines if guilty beyond a reasonable doubt |
| Kinds of Evidence | 1. Direct- facts that establish guilt ex. DNA 2. Circumstantial- to infer guilt ex. weapon in possession of the accused 3. Hearsay- to prove they said something happened or saw something 4. Expert- called in to talk about facts in a case, must speak to case |
| Inculpable and Exculpable Statements | • Confessions/statements/admissions are only admissible if it is beyond a reasonable doubt that it was free and voluntary (not through force or duress) 1. Inculpatory (incriminating) 2. Exculpatory (tending not to incriminate)- points in another direction ex. someone else’s DNA, alibi |
| Witness in Criminal Trials | - Fact- testify by subpoena ( ordered to show up to court) - Character Witness- testify on a person’s characteristics ex. program coordinator that speaks on progress, participation etc. - Material Witness- facts, evidence - Expert- doesn’t speak on the case but about their personal expertise |
| Plea Bargains/Agreements | an agreement by the accused to plead guilty in return for the prosecutor's agreeing to take or refrain from taking a particular course of action |
| 3 promises allowed in a plea bargain | 1. Charge bargaining- 2. Sentence bargaining 3. Fact bargaining- what facts they will bring up in court |
| The Trial Process | • Majority of trials are “judge-alone”, heard at the provincial level—summary, indictable, or hybrid offences • If Crown indicts, trial goes to superior court (Queen’s Bench)– judge alone or judge + jury Plead guiltysentencing |
| Actus Reus | committed the actual crime - needed to convict in a criminal conviction |
| Mens Rea | mental intent or motive to commit the crime (example: must know you committed a crime), must be proven beyond a reasonable doubt - needed to convict in a criminal conviction |
| Principles of Sentencing | • Punishment of the offender • Denunciation of the crime • General (the public) and specific (the offender) deterrence • Separation of offenders from vulnerable members of society • Rehabilitation • Reparations made to the victim and/or society • Promotion of a sense of responsibility in offender |
| Possible Sentences Without Prison (FARCCS) | Absolute discharge- found guilty with no criminal record Conditional discharge- dependent on complying with conditions for a certain amount of time and end up without a criminal record (e.g., probation) Suspended sentence and probation- sentencing is put off pending compliance with probation Fine Conditional sentence- sentences served in community, e.g., house arrest Restitution order- payment of the victim’s losses due to the crime |
| Diversionary Measures | - Suspended sentence - House arrest - Probation - Community service - Weekend sentences - Long Term Supervision Orders - Peace bond - Sentencing circles - Reparation and restitution |
| 810 Orders Peace Bonds | • often referred to as a peace bond or restraining order, is a preventative court [order] requiring an individual to agree to keep the peace, be of good behaviour and any other specific conditions reasonable in the circumstances to ensure public safety - can be issued to someone who hasn't been convicted of a criminal offence |
| Possible Imprisonment Sentences (Ivan Is ILL) | Imprisonment- Sentences less than two years served in provincial institutions; longer than two years served in federal penitentiaries Intermittent sentence- If the sentence is 90 days or less may be served on weekends Indeterminate sentence- could stay in jail for life or released depending on their conduct. If the person has committed a series of violent acts demonstrating an inability or failure to restrain dangerous behaviour or has committed an offence of such a brutal nature, the person may be found to be a dangerous offender |
| Criminal Sentences | Probation- given out instead of a custodial sentence, provincial government employee Parole- applied when someone is coming out their custodial sentence, federal government employee Conditional sentences Community service orders |
| Therapeutic Courts | - David Wexler– “therapeutic jurisprudence” – judgment that is based in therapy and treatment in helping people to get better • Domestic Violence Court • Mental Health Court • Drug Treatment Court |
| 5 Principles of Problem-solving/Therapeutic Courts | 1. Seeing problems in context- bigger social context 2. Redefining goals- what is success to them, improving things for the individual and for general good 3. Utilizing judicial authority- judge asking about progress 4. Multidisciplinary partnerships 5. Expanding traditional roles- judges have a more active role |
| Judicial Review | Offender appears back in court periodically to update on their progress ex. therapeutic courts |
| Cree Court | - Hearings fully or partially in Cree - first of its kind in canada |
| What court are family matters heard | Court of Queen's Bench |
| Common-Law Marriage | • Ranges from cohabitation in a relationship of some permanence of parents of a child to cohabitation for not less than two or three years • Courts and legislatures have begun to extend property rights, support obligations, and statutorily defined benefits to cohabiters |
| When Can a Spouse Obtain a Divorce | 1. Living separate and apart for at least one year immediately before and at the time of the granting of the divorce judgment 2. The other spouse has committed adultery 3. The other spouse has inflicted physical or mental cruelty making continued cohabitation intolerable |
| Custody | the right and the responsibility to care for a child. It includes both the day-to-day care of a child and the right to make decisions about the child’s life |
| Access | the time a child spends with the parent they do not live with. It is intended to ensure that the child continues to have a relationship with that parent. Courts are guided by the belief that a child should have as much contact with both parents as is consistent with their best interests |
| Types of custody | Sole custody: one parent has legal rights and responsibilities Joint custody: shared rights and responsibilities Shared custody: joint custody where child spends at least 40% of time with each parent Split custody: each parent has at least one child living with them |
| How is the best interest of the child determined | • Emotional ties between the child and the parent claiming custody • The length of time the child has lived in a stable home • Plans for the care and upbringing of the child • Views and preferences of the child |
| Child support guidelines | Fair standard of support Reduce conflict tension between parents Ensure similar cases are treated the same Make legal process more efficient - Must be provided for children under the age of majority as determined by the province of ordinary residence |
| Spousal Support | • Recognize any economic advantages or disadvantages arising from marriage or breakdown • Apportion any financial consequences arising from the care of any child of the marriage • Relieve any economic hardship of the spouses arising from the breakdown of the marriage • Promote the economic self-sufficiency of each spouse within a reasonable period of time |
| Resources: Ministry of justice Programs | • Family Law Information Sessions • Family Matters: Assisting Families through Separation and Divorce • Maintenance Enforcement Office • The Inter-Jurisdictional Support Orders Unit • The Social Work Unit • The Parent Education Unit |
| 2 parts of indigenous law not governed by fed. and prov. laws | 1. Aboriginal customary marriages and divorces have been recognized at law 2. First Nations may have some jurisdiction over marriage and divorce through the self-government agreements negotiated among Canada, the relevant province or territory, and a First Nation community |
| Matrimonial Real Property | the house or land that a couple lives on or benefits from while they are married or in a common law relationship. In 1986, the Supreme Court of Canada ruled that provincial and territorial laws on MRP do not apply to reserve land. |
| Categories of Adoption | 1. Statutory adoption - with or without Consent - Relationship to child and adoptive parent - 3rd party 2. Custom or customary adoption - Aboriginal children following traditional customary processes 3. International adoption - Hague Convention on Protection of children and Cooperation in Respect to Intercountry Adoption |
| Adoption of Aboriginal Children in Canada | • Takes place within Aboriginal communities following traditional law • Arrangements may be fluid or temporary • Children often will have continuing contact with birth parents • Adoption agreements may continue to involve the birth parent and may vary in the degree to which parental rights and responsibilities are distributed |
| Support for Families Following Adoption in Canada | • Education and information services—including information on child development, attachment issues, parenting, and available resources • Clinical counselling services—including child, couple, and family counselling • Financial and other material services—including subsidies, medical care, and respite care |
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