Criminal Law Test 1

Questão	Responda
What are the categories of law?	Law of Evidence. Substantive law (Public v Private), and Procedural Law
sets out the manner in which facts are introduced and proved in a trial, hearing or proceeding	the laws of evidence
defines legal rights and obligations, legal rights may be enforced by way of legal proceedings, this area of law can also include defences to legal proceedings	substantive law
governs the relationship between legal persons and the state	public law
what are the types of public law (8)	constitutional, administrative, tax, immigration, child welfare, environmental, municipal, criminal
governs the relationship between legal persons	private law
what are the types of private law? (7)	contract, family, property, real estate, commercial, wills and estates and tort
the body of law that deals with wrongs or harms caused to society as a whole. Prosecuted by the state. The victim is a witness not a party.	criminal law
the body of law that deals with harm caused to a person or property by another. The injured party sues the other. Injuree v injurer.	tort law
what is the standard of proof in criminal law? What is the standard of proof in tort law?	Criminal Law: beyond a reasonable doubt Tort Law: balance of probabilities
a party's obligation to prove certain facts or matters in an issue	burden of proof
the legal level of proof that must be established in a court case before the case may be won	standard of proof
What are the sources of criminal law?	Statute Law Common Law Other systems of law
Statute Law Jurisdiction : Federal jurisdiction over what? where does its authority come from? examples of federal statutes	Federal juridiction - criminal offences Jurisdiction of offences under the crimina code like assault, murder and theft Authority - constitution act s.91 Examples of statutes: criminal code, YCJA, CDSA
Statute Law Provincial jurisdiction over what where does its authority come from examples of provincial statutes	Provincial jurisidciton quasi criminal offences like provincial offences authority comes from s 92 of constitution act stats: provincial offences act, HTA
offences created by provincial legislatures to enforce certain regulatory laws that are within their law making authority	privincial offences
common law	the collection of precedents throughout time
judicial reasons	precedent
stare decisis	the principle which dictates that all lower courts must follow the precedents set by the higher courts if the facts of the case are generally the same
what is the role of the courts	make law but Parliament can alter them. Consider statutes in their provisions to clarify and interpret Parliament's intent in modern society create precedents
What are some examples of other systems of law	Justinian Code Napoleonic Code
a Latin term meaning that a law has been made outside the authority of the law-making body	ultra vires
a Latin term meaning that a law has been made within the authority of the law-making body	intra vires
3 Basic Principles of Criminal Law	1. All persons charged with a criminal offence are presumed to be not guilty. 2. To establish guilt, the Crown must prove guilt beyond a reasonable doubt. 3. The proof must be presented in a fair and public hearing.
the prosecutor in a criminal case or the plaintiff in a civil case has the burden or onus to present enough evidence to win their case beyond a reasonable doubt or on the balance of probabilities, respectively	onus of proof
_____________________ is a significant common law principle that forms the major foundation of the criminal justice system.	The presumption of innocence
where is the presumption of innocence enshrined	s. 11(d) Charter
a country in which the constitution provides for more than one level of government;	federal state (Canada is a federal state)
the constitution and division of powers	Under the Canadian Constitution, both levels of government have authority to make laws in the areas listed in the Constitution Act, 1867 . Section 91 of the Act sets out the areas in which the federal government has the power to make law, and section 92 lists the provincial government law-making powers.
any law made outside of the confines of constitutional authority is	ultra vires (and ultra vires = invalid)
criminal law and procedure falls within _________ law making power	federal. This means that only the federal government gets to pass laws that dictate what is and is not criminal
what can the provincial government do crime wise?	Therefore the provincial legislatures may pass statutes that create offences for failure to abide by the laws that they have the constitutional authority to make.
what sections of the Charter limit Charter rights?	section 1 and 33
Section 1	the rights and freedoms set out in the charter are guaratneed subjet to such reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society OAKES test - the government has to meet all the requirements in the Oakes test to have the right limited
Oakes test	1. sufficiently important objective 2. rational connection to the objective of solving the substantial problem 3. minimal impairment - least drastic means possible to solve the problem and minimally impairs the charter right AND impairs the right only enough to get the job done 4. proportionate effect - the degree to which individual rights are impaired must not be disproportionate to the benefit achieved by the impairment
The Supreme Court of Canada upheld the use of police programs which involve random stops of drivers to determine if they have been drinking. Although a Charter violation it was upheld because the programs purpose was to curb impaired driving that kills many people every year.	sufficiently important objective
s. 213(D) of the CCC used to say that if a person was in possession of a weapon while committing certain offences and his accomplice murdered someone that person would be guilty of murder through participation in the other crime UNTIL the court held that this was too drastic a means of discouraging the use of weapons by criminals	minimal impairment
a Narcotic Control Act provision which is stated that an individual found to be in possession of an illegal drug was automatically deemed a trafficker was struck down because rationally not everyone who possesses a drug will traffic it	rational connection
section 33	Ottawa and the provinces have the right to override ss. 2, 7-15 by amending any statute to expressly state that the act or a provision of the act continues to operate nonwithstanding a provision in the charter doesnt require proof that the overriding right or freedoms is justified by the need to solve some important social problem must be renewed every 5 years
what are the remedies for Charter violations	1. s 52(1) 1. s 24 (general remedy) 3. s 24 (exclusionary remedy)
s. 52	any law that is incosistent with the constitution is of no force or effect Applies to: when a legislative body passes a law that it is not permitted to pass under the division of powers in the constitution 2. a law is inconsistent with the charter
s. 52 remedies	law declared VOID the offending provision is severed
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.	24(1)
W here, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.	24(2)
provides a remedy that is “appropriate and just” to anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied, while section	24(1)
provides a remedy in cases where evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter.	24(2)
s 24(1) is a _______________ remedy	general remedy
T he primary Charter provisions with regard to wrongfully obtained evidence	24(2)
The two subsections of section 24 work together. Before there is even a consideration of whether or not the evidence should be excluded___________________________________	there has to be a “proceeding” under section 24(1) to determine whether there in fact has been an infringement of an individual’s right or freedom.
the most serious offences set out in the criminal code examples paralegal jurisdiction	indictable offences murder no jurisdiction
the less serious offences set out in the criminal code examples jurisdiction of paralegals	summary convictions disturbing a religious service according to the notes only if the penalty is imprisonment less than 6 months
where are indictable offences heard	superior court of justice
where are summary convictions heard	ontario court of justice
offences that may be prosecuted as either summary of indictable offences at choice or election by the crown paralegal jurisdiction example	hybrid offences ex. simple assault paralegals can only represent if proceed summarily
whose role is it to investigate possible breaches of the law	the police
whose role is it to be an impartial decision maker	the judge
person or persons in a trial who assess evidence and render a verdict	trier of fact
person in a trial who controls the trial process, determines the admissibility of evidence, and instructs the trier of fact on the application of law	trier of law
who has the duty of determining what information they accept and what weight they assign to that information, renders a verdict	the jury
who is the trier of law in a jury trial? who is the trier of law and fact in a judge alone	jury trial the jury is the trier of fact, in judge alone the judge is both trier of fact and law
who controls the process in the courtroom	judge
who is the provincial employee who is not elected and prosecutes cases on behalf of the state in the name of the crown	the prosecutor
what is the duty of the crown	to assist the court in arriving at the truth even if the truth means that the accused did not commit the offence
evidence that points to guilt	inculpatory evidence
evidence that points to innocence	exculpatory evidence
what are some of the roles of the defence	ethical competence, not misrepresent, defend clients rights, basically everything we learned in ethics
what is the chain of appeal for criminal summary convictions	OCJ appeal to SCC appeal to ONCA appeal to Supreme Court
when summary convictions are appealed from the ontario court of justice to the superior court what function of the SCC hears the appeal	appellate function

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	Criado por Jean Ramsay quase 5 anos atrás