Clu 3m0 Notes

Law Study Notes Rules: applies to only the participants Law: applies to all members of society; keeps society in functioning in order Democracy: government ruled by elected representatives Bill into a Law House of Commons 1. Bill is introduced 2. Bill is briefly debated 3. First vote 4. Second reading 5. Bill introduced again and debated in general 6. Second vote 7. Committee stage 8. Third vote *Repeats in the Senate and ends off with the Governor General signing Divisions of Law Procedural Law: outlines the steps involved in protecting the rights given under substantive law Substantive Law: lists the rights and obligations • Public Law: between the government and society 1. Criminal Law: punishes offenders and protects society 2. Constitutional Law: provides structure and limits the government’s power 3. Administrative Law: between people and governmental organizations • Private/Civil Law: between individual and individual 1. Family Law: between individuals who live together + parent and children 2. Contract Law: outlines the requirements and responsibilities of parties involved 3. Tort Law: wrongdoings between one individual and another 4. Property Law: controls the use, enjoyment and rental of property 5. Labour Law: between employer and employee History of Law • Hammurabi – Believed in Retribution and written in stone “An eye for an eye” • Mosaic Law – Written in stone, there were Ten Commandments, believed in Restitution • Roman Law – Based mostly on religion and is similar to today’s system; Justinian Code + Napoleonic Code/French Civil Code, it emphasized equity • Feudalism – King owned land, lords + serfs worked the land. • Common Law – unwritten law from judicial precedents • Precedent – something done before that can be seen as a rule/example for how things should be done • Case Law – recorded decisions using citations • Rule of Law – applies equally to everyone, introduced habeas corpus • Parliament and Statute Law – helped make/pass laws Development of Canada’s Constitution • 1867 – BNA Act gave Canada independence, but no control over foreign affairs. • Privy Council was Canada’s highest court located in Britain, it overruled all Canadian decisions • 1931 – Statute of Westminister gave Canada control over foreign affairs

•

1982 – BNA Act was renamed the Constitutional Act, 1982, Canada had complete independence • Canadian Charter of Rights and Freedoms • Amending Formula: Canadian Parliament + 2/3 provinces with 50% population

Customary Laws Unwritten laws that are practices in which states follow consistently and are seen as an obligation • Sovereignty – independence; right to self govern • Recognition – being known as a sovereign country by other countries • Consent – without giving consent, international law will not apply • Good Faith – use common sense when interpreting laws • Freedom of the Seas – cannot claim high seas and must use with consideration of others • International Responsibility • Self Defence – unlawful to use force against another state • Humanitarianism – respect for humans; “Humans help humans” Treaty Laws • Charters – create international organizations • Conventions – formed by many countries • Protocols – added to earlier treaties of the same topic Treaties deal with: • Territory – international borders and boundaries • Diplomatic Law and Immunity – international representatives have certain privileges • The Protection of Nationals Abroad – travelling people are entitled to protection of life, liberty and goods • Extradition and Asylum – sending someone back to their home country to face penalties • International Trade • Arms Control Treaty-making process: 1. Negotiate terms 2. Sign the treaty 3. Ratify/approve the treaty 4. Let the treaty pass and come into effect 5. Implement or enforce the treaty United • • • •

Nations Established on October 24, 1945 Preserves peace and security through international cooperation Promotes human rights Creates international laws, but not a world government

UN General Assembly – all members vote on matters involving peace and security UN Security Council • Consists of 15 members

• •

5 permanent members (China, France, Great Britain, USA and Russia) with veto power Sends out peacekeepers, rarely uses military forces and can impose sanctions

International Court of Justice (ICJ) • Located in The Hague, Netherlands • Hears only civil cases • Only UN members can bring cases • Bases decision on international law International Criminal Court Three classes of international crime: • War crimes (Violations of the customs of war) • Crimes against peace (Planning a war) • Crimes against humanity (Murder) Notwithstanding Clause – gives provinces/territories to create laws that violate the CCRF Reasonable Limits Clause – laws can set limits on rights and freedoms as long as they are justified in a democratic society and are reasonable Reasonable if: 1. Enforces an important government objective 2. Restriction is minimal 3. Clear and sets exact standards Human Rights Timeline 1215 – King John signs Magna Carta 1689 – Queen Mary II and King William III signs the English Bill of Rights End of 17th Century – Right to life, liberty and security in the West 1789 – August 26, France passed the Declaration of the Rights of Man and of Citizen 1791 – US Bill of Rights 1865 – US abolished slavery 1945 – The United Nations was created 1948 – December 10, the UN adopted the Universal Declaration of Human Rights 1960 – August 10, Diefenbaker made the Canadian Bill of Rights 1982 – Trudeau brought in the Canadian Charter of Rights and Freedom Canadian Charter of Rights and Freedoms Section 2: Fundamental Freedoms • Conscience/religion, opinion/thought/expression/belief, peaceful assembly and association Section 3, 4 and 5: Democratic Rights Section 6: Mobility Rights • Free to enter, leave or move within Canada Section 7 – 14: Legal Rights Section 15 and 28: Equality Rights • Will not be discriminated for religion, race, colour, origin, sex, age, and disabilities Section 16 – 22: Official Languages Section 23: Minority Language Educational Rights Section 25: Aboriginal Rights Section 27: Multicultural/Heritage Rights Ontario Human Rights Code • Provides protection from discrimination in 5 areas

1. 2. 3. 4. 5.

Services, goods and facilities Residential location Contracts Employment Membership inn associations and/or trade unions

Prejudice – prejudging someone before getting to know their real character Stereotyping – applying one characteristic of an individual to a group of people Discrimination – occurs when people are prejudice or stereotyping to treat someone unfairly; is prohibited 1. Race 2. Ancestry 3. Place of origin 4. Colour 5. Ethnic origin 6. Citizenship 7. Creed 8. Sex 9. Sexual orientation 10. Handicap 11. Age 12. Marital status 13. Family status 14. Same sex partner status 15. Record of offences 16. Receipt of public assistance (housing only) Harassment – engaging in a course of vexation comments or conduct known, or ought reasonably to be known, as unwelcomed *must be continuous Poisoned Environment – created by comments/conducts that insult a person/group, clearly evident as uncomfortable Criminal Law – protects society by preventing crimes and punishing offenders Four conditions for an act to be criminal: 1. Harm others 2. Go against society’s values 3. Laws used to settle do not go against society’s values 4. Need laws to solve conflict Types of Offences 1. Summary: • Goes to court quickly • Less serious • No jury, only judge • Does not have to personally appear in court • Statute of Limitations for 6 months • Examples: theft under $2000, loitering, causing a disturbance 2. Indictable: • More serious • Judge + jury or just judge (depends on the seriousness) • Must show up personally, can represent self or have a lawyer • No Statute of Limitations

• Examples: murder, kidnapping, manslaughter 3. Hybrid/dual: • Can be both summary or indictable, Crown prosecutor decides • Examples: assault, public mischief, criminal harassment Quasi-criminal Law – laws passed by provinces/territories/cities that resemble criminal law but are not criminal Actus Reus – Latin for a wrongful action; an element of crime Mens • • • • • •

Rea – Latin for a guilty mind; an element of crime Intent – general (Act itself) or specific (Further criminal purposes) Knowledge Attempt Recklessness Conspiracy Motive (Circumstantial evidence – non-solid evidence that leads to suspicion)

Aiding – helping the criminal act Abetting – encouraging the criminal act *Both must contain knowledge of crime for it to be considered aiding and abetting Accessory After the Fact – helping a convict escape capture or detention Offences without Mens Rea (Regulatory offences) 1. Strict liability offences • Only necessary to prove that the offence was committed • Defence of due diligence (avoided committing the offence/believed in a mistake set of facts) 2. Absolute liability offences • Similar to strict liability offences but have no defence Supreme Court of Canada – highest appeal court in Canada • Sets national precedents • Unlimited jurisdiction • Hears case of national importance Provincial Courts – Criminal Division • Arraigns • Holds preliminary hearings for indictable offences • Hears summary offences Provincial Supreme Court – Trial Division • Hears indictable offences • Hears appeals from Criminal Division • Sets provincial precedents Provincial Supreme Court of Appeal • Hears appeals from Trial Division • Sets provincial precedents

Criminal Code – outlines criminal acts • Violent crimes – harms the human body ○ Homicide: killing another human (culpable/non-culpable)  Murder: intentional killing of another human (first/second degree)  Manslaughter: causing the death of another human through an unlawful act, can use provocation or intoxication as a defence  Infanticide: killing of a newborn by the mother shortly after birth when the mother is still suffering mental disturbance  Suicide  Euthanasia: mercy killing; one person acts to end another’s life ○ Assault: applying or threatening with intentional force or approaching/block with a weapon  Assault causing bodily harm: using/carrying a weapon or causing bodily harm  Aggravated assault: wounds/maims/disfigures/endangering the life of the victim ○ Sexual assault: same as assault but with a sexual conduct ○ Abduction: forcible removal of an unmarried child under 16 from the legal caregiver  Enticing: refusing to give access according to terms or non-custodial parent runs away with child during access time  Defence: protecting child from harm/ given consent from other parent ○ Robbery: theft using violence or weapons • Actions with high social impact – creates a lot of debates and different opinions ○ Abortion: killing of an unborn foetus ○ Weapons: anything intended to kill/injury/threaten (Prohibited + restricted) ○ Prostitution: soliciting (communicating for the purpose of prostitution), keeping a bawdyhouse, or procuring (directing customers or living off money from prostitution) ○ Obscenity ○ Abandonment of children: endangering a child’s life by leaving him/her (Under the age of 10) • Property crimes – due to the importance of property ○ Arson: intentional or reckless causing of damage with fire/explosives ○ Theft: must be fraudulent, no “Colour of Right” (No legal right to item) and for own personal gain ○ Break and Enter ○ Possession of Stolen Goods: having something even though knowing it was obtained through an unlawful act ○ Fraud: making false pretences (a fake representation of facts) to obtain credit or loans • Other crimes – newly added laws based on society’s changing values ○ Terrorism: bringing fear to people ○ Criminal Harassment: stalking ○ Criminal Negligence: being reckless about other’s lives and safety ○ Mischief: deliberate damage or destruction of property Drug Use • Drug – any substance that by its chemical nature can alter the structure or function of a living organism • Controlled Drugs and Substances Act – statute relating to drug use, it combines the old Narcotic Control Act and sections of Foods and Drugs Act

•

• • • • • •

•

○ Schedule I – most dangerous drugs ○ Schedule II – marijuana and derivatives ○ Schedule III – other dangerous drugs ○ Schedule IV – therapeutic drugs ○ Schedule VII – marijuana in 3kg ○ Schedule VIII – marijuana in 1g - 30g Possession – having control over substance, does not have to own or physically have it, however, mens Rea is necessary for possession *Those with terminal illnesses/pain may use marijuana for medical reasons Prescription Shopping/Double Doctoring – going to many doctors and getting the same prescriptions Trafficking – selling, transporting, giving, sending, delivering or transferring a controlled substance ○ Proof of trafficking: drug paraphernalia and large amounts of money Entrap – to lure someone into committing a crime Importing/exporting – does not have to carry the drug, just arranging for its importation counts Launder – to use, transfer, alter or dispose of any property obtained through crime Police Rights of Search and Seizure ○ Must have a warrant ○ May act without one if urgent and impractical to get one. ○ Example: evidence is about to be flushed down toilet ○ Can search anyone under reasonable grounds, however cannot search in a public place Sentencing – must contribute respect for the law and maintain a safe society, mostly focuses on rehabilitation and treatments ○ Considered to be extremely serious if:  Used weapon  Used violence  Sold to kids under 18  Sold around areas where many kids under 18 are  Was previously convicted of a substance offence

Impaired Driving • Motor vehicle – a vehicle propelled, driven, drawn by any means other than muscular power • It’s an offence to operate in a manner dangerous to the public in a public area • If in an accident, driver must stop and give name + address and assistance, if needed • Four offences of impaired driving: ○ Driving while impaired by drugs/alcohol ○ Having care/control while impaired by drugs/alcohol ○ Driving while the blood alcohol level is over 80mg in 100mL of blood ○ Having care/control when blood alcohol level is over 80mg in 100mL of blood • Having care/control – vehicle does not have to be moving or running ○ Mens Rea: intent to assume care/control ○ Actus Reus: action of assuming care/control ○ Example: sitting in the driver’s seat while impaired • Impaired driving tests ○ Breath test – being stopped for a roadside screening test and blowing into a breath tester machine that measures the alcohol level

Blood samples – when person cannot physically give a breath test (i.e. Unconscious). Done by a physician and will not be done if it endangers the life of the person Can get fined, jail time and/or demerit points

○

•

Arrest • Must determine an offence has been committed and have reasonable ground to believe a suspect • Purpose is to lay charges, preserve evidence and prevent the accused from committing more crimes • Swear an information – states that they believe on reasonable grounds that the person named has committed the offence • Three options for arrest: ○ Appearance notice – names offence, time and place for court appearance (Less serious offences) ○ Arrest the suspect – for serious offences  Officers must: • Identify themselves • Advise them that they are under arrest • Tell them that they have the right to a lawyer • Inform them about the charges  Can arrest if without warrant if reasonable  Can use as much force as necessary  Can use deadly force if: • The behaviour can cause serious harm/death to others • Tries to flee arrest • No alternative way to prevent escape ○ Warrant for arrest – a summons (orders to appear in court, delivered by a sheriff/deputy) or a warrant for arrest, must prove that the accused will not voluntarily show up in court (name + describes the accused, list charges and orders arrest) Duties • • • • • •

of Police Officers Federal – RCMP, acts as provincial in provinces without provincial polices Provincial – OPP and SQ, acts as municipal in cities without municipal polices Municipal – Peel + York Responsible for conduct and behaviour, any misconduct can be charged under criminal law or sued under civil law Have to secure crime scene so no evidence gets contaminated Police log – because they are the first at the crime scene, they must record what they hear/see, this can act as evidence in court

Citizen’s Rights Cooperation = innocence, but police may make assumptions based on behaviours during questioning When detained – stopped for questioning by the police • Do not have to answer questions unless they are for a specific situation • If not released after detention, citizen can demand lawyer When arrested, these are the citizen’s rights: • Know the reason for arrest • Obtain a lawyer (Duty counsel: lawyer on duty at court) and refuse to answer further questions

• •

When read their rights, they must fully understand them Can get searched and fingerprinted + photographed, but can refuse a polygraph test, line up and blood samples *Good idea to be let police collect evidence sometimes because it can help prove innocence

Search Laws – police must have a search warrant • To get a warrant, an officer has to swear an information (reasonable grounds for an offence to have been committed on property) to a judge. • Telewarrants – warrants obtained via email, phone or fax.; used when evidence is about to be destroyed • Can only search whatever is said on the warrant, other irrelevant evidence requires a new warrant • Police can break into premises, they must be allowed entry unless there is a mistake on the warrant • Can only search person after arresting, do not need a warrant if someone agrees to be searched • Need warrant to install electronic devices, such as video cameras or telephone recorders • May search a public place without a warrant if they need a surprise entry or no time to obtain one, anyone found in these public premises may be searched as well Reverse Onus – the responsibility of proving is placed on the defence rather than the Crown Releases • May release people carrying a penalty with 5 years or less, must believe that they will appear in court • Bail - money paid to ensure the accused will appear at a later date, if granted, and the accused fails to appear, the person who paid the bail loses the money. Also, someone who pleads not guilty but promises to appear in court may be granted bail unless the Crown proves them to be a danger. • Undertaking – lists conditions and helps the accused stay out of trouble • Recognizance – acknowledging the charge and promises to appear in court • If denied release, accused can do a writ of habeas corpus, stating they want release and had been denied that right • Fingerprints and photographs do not get destroyed after release Legal Aid – lawyers hired by the government for those who cannot afford a lawyer Disclosure – a meeting between the Crown and the defence to discuss the case so the defence knows exactly what the case is about and so the Crown can ensure that there is enough evidence for a case, if not, then charges are dropped Adjournment – moving the matter to a later date, gives time for accused to obtain legal advice Remand – being sent back to custody after pleading guilty for a summary/minor indictable offence, can last for 8 days, or until the judge can pass a sentence Plea – states whether they are guilty or not guilty Preliminary Hearing – judge decides whether there is enough evidence to have trial in a higher court. Only takes place when accused does not plead guilty to an indictable offence

and chooses to be tried in a higher court. Judges hears evidence and witnesses; defence can cross-examine but need not call evidence. Can be skipped if: 1. Plead guilty 2. Wants trial date asap 3. Wants to avoid negative publicity Plea Negotiation – a resolution discussion, usually encouraged when there is strong evidence being used against the accused. It leads to a guilty plea and lesser charge than the original charge. Stay of proceedings – a court order to stop the trial proceedings until a certain condition is met The Accused – charged for committing a crime, if guilty, they are called the offender/perpetrator Criminal Defence Council – hired by accused to bring evidence to counter the Crown and show the flaws in the case. They protect the right to fair trial and to present any reasonable doubts. Crown Attorney – prosecutes criminal cases and reviews police findings. Their goal is to bring all credible evidence to prove offenders guilty beyond reasonable doubts. Witnesses – has knowledge and gives first hand evidence, they must swear an oath and affirmation. Expert witnesses (Ones who specialize in a field) do not need to be first hand, but to just testify about certain facts of the case to help the court understand the evidence. Court Reporter – keeps a written record so judges/lawyers/jury can refer to them. Use recordings to back up and is essential for appeals. Judge – are appointed by government to hear evidence and make decisions. In cases with a jury, the judge has no real power but to help determine aspects and give instructions about applying the law. Gives written or oral reasons to decisions and sentences. Probation Officer – assesses offenders and enforces probation orders Surety – ensures the accused will show up in court and abides to the conditions of release, pays if accused fails. Jury – chosen citizens who hear evidence and reach decisions on whether accused is guilty or not. They decide on verdicts, not sentences. Empanelling – process of selecting 12 jurors between the ages of 18-69 and must speak English/French • Computer generated, it selects 75-100 people who are summoned to court • If they don’t appear, they will be issued a warrant and charged • In court, they assemble and whoever’s name gets drawn is called forward • Judge can exempt if they have personal interest in the case, has a relationship with a trial participant or has personal hardships • Can ask to stand aside for reasonable cause and be called back if there isn’t enough jurors selected • Characteristics considered: sex, sexual orientation, age, ethnicity, religion, financial status, occupation and intelligence

Challenges – used by the Crown and defence to eliminate jurors 1. Challenge of Jury List: selection committee was fraudulent in selecting jurors 2. Challenge for Cause: jurors do not meet requirements 3. Peremptory Challenge: elimination without reason a. High treason/first-degree murder: 20 challenges b. Penalty over 5 years: 12 challenges c. Penalty under 5 years: 4 challenges Jury Duty • May take notes if permitted • Must not ○ Discuss case to others other than jurors ○ Follow media reports about the case ○ Disclose any information not revealed in court • Can be sequestered: housed and fed away from home until they reach a verdict, it prevents jurors from being influenced by outside information • Can be discharged for a valid reason • Receives a payment for services Advantages of a Jury 1. Involves and educates the public 2. Judges do not have to make all decisions 3. Many different perspectives because of different backgrounds 4. Bases verdict on current social values, not precedents 5. Defence only needs to convince one juror to have a reasonable doubt 6. May feel empathy towards the accused Advantages of a Judge 1. Less prejudiced 2. Bases decisions on evidence and law 3. Gives reason to decisions 4. Unlike a juror, judges will not let their judgement be clouded by a disgust of offence Arraignment – the first step in a trial: the reading of the charge to the accused Direct Evidence – testimonies from first hand witnesses, most common but not always reliable Circumstantial/Indirect Evidence – can indicate the high probability of the accused committing the offence • Must be proven as it is presented (i.e. claiming a person owned a glove, it must also prove that fact) Examination-in-chief – first questioning of witness done by the Crown. No leading questions are allowed. Leading Questions – questions that prompt the witness in giving the answer wanted Credibility – the reliability of a witness affects the weight of the evidence (how much is counted for when making a decision) Directed Verdict – called on by the defence, the accused is not guilty because Crown has no proven its case after presenting its evidence

Steps 1. 2. 3. 4. 5. 6. 7. 8. 9.

in presenting evidence: Crown does examination-in-chief Defence cross-examines Crown re-examines Defence re-cross-examines if permitted Defence presents evidence Crown cross-examines Defence re-examines Crown makes rebuttal Defence makes surrebuttal (evidence to counter the Crown’s rebuttal)

Subpoena – a court document ordering witnesses to appear • Those who refuse can be detained for up to 90 days • Failing to attend trial to give evidence is found guilty of contempt of court (act that embarrasses, hinders or obstructs a court in its administration of justice) and can be fined/imprisoned for 90 days Perjury – giving false evidence with intent to mislead; maximum penalty is 14 years of jail Adverse witness – called by both the defence and Crown. The side that calls forward the witness cannot bring forward evidence of witness’ bad character, but can contradict by offering other evidence Voir dire – a trial within a trial to see if evidence is admissible Self-incrimination – behaviour of evidence that indicates one’s guilt Types of Evidence 1. Privileged communications: communications that cannot be required to be presented in court, unless nullified by the person with power by presenting it in court 2. Similar fact: shows that the accused has committed similar offences in the past, must be relevant 3. Hearsay: something someone other than the witness has said or written, usually not admitted. Can be admitted if it’s to prove that a statement was made or if it’s quoting a dying person, and it must be necessary and reliable 4. Opinion: what an expert witness thinks about a certain fact, must be a qualified expert or else it is inadmissible, unless it is relevant/necessary and will help the jury/judge reach a decision 5. Character: Crown usually brings out negative traits and it becomes prejudicial, therefore there are restrictions. However, the defence can bring out traits for credibility. But if defence brings out one good character, then the Crown can bring out one previous conviction 6. Photographs: an accurate picture of the crime scene, often described by a photographer 7. Electronic devices: can only be admitted if it was obtained through proper procedures 8. Polygraph: hearsay and inadmissible, all the polygraph operator can do is state what was said 9. Confessions: acknowledgement of the charge, must be voluntarily or else it is inadmissible Alibi – a defence that states the accused was somewhere else during the time of the crime Types of Defences

1. Self-defence: Criminal Code permits you to defend yourself and those under your protection, and your property, but can only use reasonable and necessary force. 2. Legal Duty: allows certain people to commit acts that are known to be offences 3. Excusable conduct: duress (being forced by violence) or honest mistake (truthfully did not know) 4. Mental disorder 5. Intoxication: unable to form an intent before committing the offence 6. Automatism: unconscious, involuntary behaviour in which the person does not know what they are doing (example: sleepwalking, convulsion and behaviour caused by psychological stress) 7. Consent: only if the injured party could and did give consent, can never be used if involving firearms, murder, and sexual offences to those under 14 8. Entrapment: not a defence, but abuse by the police 9. Mistake of fact: only accepted under two conditions a. Genuine mistake b. Law accepts it as a defence 10. Double jeopardy: being tried twice for the same offence Summation – after calling all witnessed, each side summarizes its entire key arguments and evidence, no new evidence can be introduced Charge to the Jury – a judge’s instructions to the jury after the summation Jury Deliberation • Leaves the courtroom with a sheriff • Jury’s role is to determine the case, not the law (judge’s role) • Two step process in applying facts to law: ○ Discard evidence that they do not believe ○ Determine the weight of remaining evidence • Finally, must apply the concept of reasonable doubt, if there is doubt, the accused must be acquitted • Foreperson presents the verdict in court • Might be asked to be polled individually Hung jury – a jury that cannot reach a verdict Sentence – punishment imposed on a person convicted of committing an offence Goals 1. 2. 3. 4. 5. 6.

of sentencing: Protection of the public Retribution – ensuring offenders suffer consequences Deterrence – punishments to prevent or discourage Rehabilitation – treatment + punishments that help offenders function in society Restitution – requires the offender to pay society back for the harm/loss Segregation – separating the offender from society; incarceration

Pre-Sentence Report – prepared by a probation officer, it describes the situation of the offender, includes: interviews, intention, school records, criminal records, etc Victim Impact Statement – describes how the offence has impacted their life, an consideration when sentencing Recidivism – committing a crime again; the return to prison for repeated offenders

Factors concerning the offender when being sentenced • Aggravating – increases responsibility ○ Premeditation ○ Previous criminal record ○ Large profits from offence ○ Involving others ○ Continuing offence • Mitigating – decreases responsibility ○ Impulsive act ○ Young/first offender ○ Guilty plea ○ Cooperation with police ○ Mental/physical disability Factors concerning the offence when being sentenced • Aggravating – more serious ○ Violent ○ Number of victims ○ Need for deterrent • Mitigating – less serious ○ Minor ○ Time spent in custody Possible Sentences • Absolute discharge – all charges dropped • Conditional discharge – charges are dropped after following some rules for a period of time • Probation – must check in with a probation officer for some time and submit to conditions • Fines – must be paid within a time period or else jail • Suspended sentence – time served outside jail, with conditions • Conditional sentences – time served within the community • Peace bonds – required to stay out of trouble and keep peace • Custodial sentence – time served in custody or jail Restitution given to the victim (or indirect victim) can be for • Damage • Loss or destruction to property • Bodily harm (including support/psychological services and income) • Costs incurred by spouses who have been forced from their home due to bodily harm Victim • • • • •

Rights Right to know the offence being convicted Length of sentence Where sentence is served Allowed to provide info if convict is applying for parole Can be told the date of release

Criminal Injuries Compensation Fund – uses public money to compensate a person who is injured when a crime was committed. Victims turn to the fund because the convict cannot compensate or has not yet been caught. Victim must return money after they have successfully sued the convict for compensation

Victim Assistance Fund – sets up education, counselling and other programs for victims and part of the financing comes from the convicts Participants of an appeal: • Appellant – brings the appeal to the judge “I have new evidence that is relevant to the case” • Judge – “Okay, it has been less than 30 days, I will hear the appeal. Are you appealing verdict or sentence?” • Respondent – fights the case, like the Crown Attorney Appeals Summary convictions – appeals are based on review of court transcripts Indictable convictions – both parties give new arguments Appeals are based on: 1. Question of law – doubt to judge’s interpretation of laws 2. Question of fact – doubts the credibility and relevance of evidence/witness Correctional Services – government agencies responsible for: • Incarceration • Processing parole applications • Supervising early released offenders and those early released from institutions • Running probation services They are assigned according to their level of risk and need for rehabilitation. Next an institution is selected based on the type of offence, the risk of escape, the availability of rehab programs and the location of family. Closed Custody – most secure form for the dangerous offenders who must be under constant guard Open Custody – less guarded then closed custody, supervised detention and possibly some supervised access in the community Community Correctional Facilities – detention that allows the offender to regular, regulated access to the community, less security than minimum security prisons Conditional Release – goal: to allow an offender to return to society under supervision in preparation for an unsupervised release • Temporary absence: ○ Escorted (anytime)/unescorted absences(after 1/6) – supervised or unsupervised authorized time away from custody • Day parole (before full parole): offender is released during the day but must return to institution at night, can go to work/school to prepare for full parole/statutory release • Full parole (after 1/3): complete release from custody under specific conditions/supervision. If parolee breaks the conditions, they must be brought back to serve the rest of the sentence Accelerated Review – is for those who did not commit a violent/drug/sexual/criminal organization offence. It’s an early consideration of an offender’s eligibility for parole Statutory Release – is a release from an institution as required by law, except for certain offences, after 2/3 of a sentence.

Free Pardon – granted when evidence shows that the convict is innocent, a cancellation of punishment Ordinary Pardon – similar to free pardons, but is granted on compassionate grounds Young Offender – someone who commits a crime between the ages of 12-17 The Juvenile Delinquents Act 1908-1984 • Not criminals but victims of poverty, abuse and neglect; their parents had not raised them well, they needed guidance • Ages 7-18 • No right to lawyers • CCRF did not apply • Hearings were closed but adult court transfers were possible • Fined up to $25 or places in foster home/government care Young • • • • • •

Offenders Act 1984-2002 Less responsible than adults Ages 12-17 Right to lawyer and CCRF applied Hearings were opened and adult transfer were possible for those older than 14 Publication ban Closed and open custody 2-3 years, 5 for murder

Youth • • • • • •

Criminal Justice Act 2002-present Tougher sentences and rehab Ages 12-17, 14+ are treated more like adults Right to lawyer and CCRF applied Parents may be present Hearings opened and no publication ban on adult sentences Many sentences

Objectives of the YCJA 1. Promote accountability, responsibility and consequences 2. Support long-term solutions 3. Respecting human rights 4. Streamlining Extrajudicial Sanctions – alternative measures programs designed for those non-violent/first time offenders who are likely to never commit another offence. • It includes programs such as: community services, counselling, drug and alcohol treatment, and special school programs. • To enter, the offender must admit some involvement in the offence, this cannot be used against them in court • Must be told their rights to a lawyer before taking a program • Those successfully complete can have all charges stayed or dropped Arrest • • • •

and Detention Cannot arrest unless it is serious Has the right to know the reason for arrest and the right to a lawyer Right to fair trial Person arresting must explain rights in a clear and understandable manner

• • • • • • • •

Must be told that any statement used may be used against them in court If the ignore these rights, they have to sign a statement Usually become frightened and say things they don’t mean Same right to bail as adults Terms of release usually impose curfews or forbid contact with certain friends If at risk for reoffending or not appearing,, they are sent to foster home or house arrest Can only be fingerprinted/photographed when they are charged with indictable offences (must be destroyed if acquitted) Parents are to be notified ASAP ○ Are encouraged to be present at all steps ○ If guilty, must be given the right to give input before sentencing ○ If ordered to attend a hearing, but does not attend, a warrant can be issued for their arrest

Trials for Young Offenders • Aged 12 to 15 are in family court, aged 16 and 17 are in provincial court • Do not that the right to choose which court system, unless transferred to adult • No preliminary hearings and judges hear all cases • Public and media may attend, and proceedings can be posted, however identity must be disclosed • 14-17 year old identities/photographs can be published if they are convicted of a serious/violent offence or is a danger to society • Can appeal if unfair or have court review sentences (only after 6 months of sentence) Transfers to Adult Court • Must have been older than 14 • Must be a serious/violent offence • Transfer hearing is heard to determine which court is best suited • Judge must decide what is best for society and the young person • Usually applies when Crown believes offence deserves an adult punishment • Controversial because it’s based on one judge’s decision and sometimes can be unfair Sentences given to youths • Absolute discharge – found guilty, but no formal conviction • Fines – only pays up to $1000 and must have ability to pay • Compensation – required to work for victim or pay the victim • Personal/community service – cannot pay fines/compensation, so they do service • Probation – limits freedom and has conditions, must check in with probation officer • Custody – open: foster or group homes, living with some restrictions or supervision/secure: jail Civil Law – regulates disputes between individuals; also known as private law. Main purpose is to compensate victims and only the victim can take action Small Claims Court – the lowest civil court where disputes involving money or property are resolved simply and informally by a judge, without a jury. Both sides tell their story and are usually not represented by a lawyer. Examples: failure to pay rent, consumer complaints and unpaid bills/wages

Provincial Supreme Court – all civil cases above the small claims limit, cases are usually argues by lawyers and may be very complex and is tried by judge or judge + jury of 6. Examples: serious motor vehicle accidents, division of property, and medical malpractice Court of Appeal – hears appeals from lower courts, tried by 3 judges Federal Court of Canada – cases involving the federal government and its employees, federal income taxes, patents, trademarks and copyrights Supreme Court of Canada – only hears appeals from the Federal Court of Canada and provincial Courts of Appeals. Needs to be of national importance or question of law Plaintiff – person suing Defendant – the person being sued Litigation – the process of suing; basically going to court; participants are called litigants Litigation Guardian -represents a minor (under 18/19) when they are being sued for more than $500 Balance of Probabilities – plaintiff must prove that events took place in the way they claim. The defendant will try to persuade the judge that their version was reality. The Judge will decide which side is more credible Filing a Claim – must be done within a 6 months limitation period and include: • Plaintiff’s full name and address • Defendant’s full name and address • Amount of money claiming • A brief, clear summary of the reasons for claim After, this must be mailed to a court clerk along with a fee. Then, the plaintiff must choose a location and they will keep a copy of the summons. The defendant will be served. Judge can renew the claim if the person has not been served within the limitation period Options after getting served 1. Defence/reply: a document outlining reasons for disagreeing with claim, must be within 10-30 days 2. Payment to court: paying full or partial amount of the claim to the court 3. Counterclaim: saying the plaintiff’s at fault instead, must relate to the reason that caused the plaintiff’s claim 4. Third party claim: involving a third party who defendant feels is fully/partially responsible 5. Default judgement: defendant does not reply with the time period and plaintiff is awarded automatically 6. Out-of-court settlement: formal/informal offer to settle before going to trial, saves time and money 7. Pre-trial conference: it’s the last chance before going to trial; both parties have an informal meeting with the judge to settle the dispute. Both sides can hear a summary and avoid surprises. Examination for Discovery – question and answer session for litigants and their lawyers, the purpose is to limit surprises and to reach an agreement on certain issues. Reduces court time, saves money and makes settlement easier. Both parties must disclose all relevant documents.

Trial Procedure (higher court with judge or judge +6 jurors) • Plaintiff goes first to present case and witness/evidence • Then the defendant goes • After all evidence has been presented, both parties sum up their cases and makes a final argument • Judge makes decision for none, part or all of the claim Remedies • Special judgements – compensation for known costs • General pecuniary damages – compensation for unknown, financial costs • General non-pecuniary damages – compensation for unknown, non-financial costs • Punitive damages – compensation awarded to punish defendant, to provide a specific/general deterrent • Nominal damages – compensation awarded to make a point • Costs – compensation awarded to either party for legal costs Enforcements • Garnishment – employer deducts money from employee’s pay check • Seizure of assets – taking possessions away • Examination of debtor – an examination of a party’s financial situation to determine a reasonable payment • Injunction – prohibits/require a party to do something Alternative Dispute Resolutions – processes for resolving disputes without formal trial • Negotiation – informal and voluntary dispute resolution process between parties. They communicate with each other and make their own decisions • Mediation – appoint a third party to help reach a mutually acceptable solution, there’s a high success rate (80%-85%) and a win/win situation. The mediator’s role is advisory only and provides a relaxed, informal and comfortable environment. This takes place in private • Arbitration – formal process in which the parties involves select a neutral third party with specific technical knowledge. It’s less costly that litigation. Has a win/lose situation. Arbitrator’s role is to hear arguments and the parties have no control of making decisions. Arbitrator makes the decision after all evidence is presented and cross-examined Intentional Tort – deliberately causes harm or loss to another person by assault and battery, false imprisonment, trespassing, nuisance and defaming. The important element is intent: the true purpose; desire for a result of an action. *Many acts do not result as a tort because a certain amount of interference with an individual’s rights are considered accepted and occur everyday Three 1. 2. 3.

Characteristics of Negligence Unintentional Unplanned Injury results

Elements of Negligence • Duty – what should have been done • Breach – what they didn’t do that should have been done • Damage – plaintiff suffered injuries/loss/damage

•

Cause – that damage was caused by the breach

Reasonable Person – the standard used in determining if a person’s conduct in a particular situation is negligent; standards of appropriate behaviour Duty of Care – specific legal obligation to not harm other people or their property Standard of Care – the level of care expected when a reasonable person is carrying out an action Neighbour Principle – legal responsibility not to harm one’s neighbour through negligent actions Foresee ability – the quality of being reasonable person should expect as a result of certain actions Remoteness – could not have been reasonably foreseen Direct – could be reasonably foreseen Minors and negligence – have a lower standard of care unless they are exercising adult activities Burden of Proof • It’s on the plaintiff to prove that all negligent elements exist • Defendant does not have to prove anything but most show evidence that the plaintiff did not get injured or was injured unreasonably foreseen Defences for negligence • Contributory negligence: both parties were at fault • Voluntary assumption of risks: plaintiff gave consent to danger/foul consequences • Inevitable accident: unable to control or stop from happening Special types of negligence • Occupier’s liability – responsibility towards people who enter a property ○ Occupier: person with control and physical possession of a property and who owes a duty of care to make the property safe for people ○ Invitee – on property for a purpose other than a social visit; owes the highest standard of care ○ Licensee – enters a property with permission, usually for a social purpose; owes a lesser standard of care than invitees ○ Trespasser – enters a property without permission or legal right. Occupiers cannot set traps and owe a duty of common humanity.  Trespassing children requires special duty if property has allurements that may pose danger. Occupier must show all reasonable precautions • Motor vehicle negligence ○ Driver is liable for the safety of all passengers • Professional negligence (doctors, surgeons, dentists, lawyers, architects, accountants) ○ Professionals must exercise a certain standard of care ○ The more specialized/qualified, the higher standard of care is expected ○ Largest area is medical negligence  Concerns a doctor’s duty of care

  

Doctors must inform patients of all risks and act only on informed consent Negligence exists when doctor does not fully inform the patient of all risks Medial battery exists when doctor treats a patient without consent

Vicarious Liability – holding a blameless person responsible for the misconduct of another Intentional trespass torts • Assault and battery - assault occurs when the victim believes or fears that bodily harm may occur, does not have to involve physical contact. Battery is the unlawful and intentional touching of a person without that person’s consent, the contact can be offensive or harmful; may exist even if no injuries result • False imprisonment – confining or restraining a person without consent, actual physical restraint is not necessary; plaintiff must attempt all reasonable means for escape • Trespass to land – entering or crossing another person’s land without permission, no damage is needs to occur • Nuisance – unreasonable use of land that interferes with the enjoyment by other persons or a community; can be intentional or unintentional Defences for intentional trespass torts • Consent • Self-defence – valid as long as it was necessary and reasonable • Defence of others/property – reasonable if person is in some degree of immediate danger/property owners can use reasonable force to remove intruders off their property, first must ask trespasser to leave • Legal authority • Necessity – a need to use another’s property unexpectedly; reclaiming goods could also be argued Essential requirements for marriage – determined by common law principles, marriage is void if it lacks any of these requirements: • Capacity - mental and legal ability at the time of marriage to understand the nature of the ceremony and the duties/responsibilities created by marriage • Minimum age – common law says 14 for males and 12 for females, in Ontario it is 18 years of age for both genders. If they are between the ages of 16-18, then they need parental consent • Close relationships – marriage between two people who are too closely related either by blood, adoption or marriage is not valid • Consent – because marriage is a contract, consent must be given freely ○ Mistake – mistaken identity or mistake to the nature of the ceremony ○ Duress – marries out of fear for his or her life, health or freedom; does not require physical force • No prior marriages – monogamy: can only be married to one person at a time; bigamy (married to two people at the same time) is an offence and makes the second marriage illegal/void • Sexual capacity – requires consummation (validation through intercourse) of marriage, partner must be physically able to do so. ○ Impotence – inability to consummate because of physical or psychological problems, cannot consummate ○ Sterility – inability to have children, can consummate

Formal requirements of marriage – if not met at the time of marriage, it can be void • Issuing marriage licences • Designating who can perform the ceremony • Establishing the formalities for the marriage ceremony • Registering the marriage If spouses marry in good faith, meet essential requirements and live together, court may consider them legally married if one of these is missing Marriage licence – can be purchase with a fee at city hall, must get one no fewer than three days and no more than three months to one year Banns to marriage – an option to a marriage licence; an announcement of an intended marriage Marriage ceremony – must be performed by someone with legal authority to conduct marriages and take place before two witnesses who sign the Certificate of Registration of Marriage Name change – not a legal requirement, but a custom/tradition. They can assume husband’s surname, keep their own birth name or combine the two together. Some women keep their birth names because of two reasons: 1. An indication of identity as equal partners 2. Career/business purposes Men may change their names too, but it is often the women Same-sex marriages – can live together, adopt children and have spousal benefits, however they cannot marry. Reasons to the right of marriage: • Same level of love/commitment • Often already raising children • A form of discrimination and a violation of rights Annulment – court stating that the couple was never legally married and can end the marriage without the need of divorce. The cause for annulment must be before marriage and judge issues the decree of nullity Separation – intermediate step between marriage and divorce, basically the couple does not intend to live together. They can stay permanent this way and never divorce. This is legally binding and must enter into a separation agreement, outlining the position of each spouse (property division and family support) Divorce – a legal procedure that ends marriage, the steps are similar to civil procedures. Usually settled out-of- court, if it’s in court then it’s heard in the provincial Supreme Court. A certificate of divorce is given 31 days (cooling period) later Petition for Divorce – document outlining the grounds for divorce Petitioner – the person seeking divorced Respondent – being sued for divorce Marriage Breakdown – the only ground for divorce; occurs when: 1. Separation for more than one year 2. Respondent committed adultery, petitioner must prove it

3. One spouse has been subjected to physical or mental cruelty Family Mediation – ADR to solving family disputes, involves a third party to help agree on issues Areas for where it’s useful: • Spousal support • Child support • When to separate • Custody of children • Division of property Benefits of it: • Saves money • A voluntary process • Promotes cooperation and compromise, not competition • May improve parenting • A confidential process Custody – which parent the children of the marriage will live with Access – which parent will be given visitation rights Best Interests of the Child – the principle in which the judge decides issues of custody of children and access; requires the courts to consider the emotional, physical, intellectual and moral well-being of the child. • Home environment • Parent-child relationships + bonding • Parenting abilities of each parent • Emotional, mental and physical health of each parent • Support available • Parent/child schedules • The belief of keeping siblings together • The child’s wishes Primary caregiver – the person who tends to the daily needs of a child Tender Years Principle – mothers were usually the ones seen to care for young children between the ages of 0-6. Less important now because both parents are now equal Joint custody/shared parenting – care and control of child awarded to both parents • Joint physical custody: child spend equal amount of time with each parent and both parents make major decisions • Joint legal custody: remain with one parent while other parent has generous access rights, both parents have equal say in decisions and it is less stressful for the children Reasonable access – flexible and occurs on a regular basis Specified access – precise times spent with non-custodial parent Supervised access – also specified time, but must be spent under supervision so that child is safe Determining Child Support Level of child support depends on:

1. The non-custodial parent’s total income 2. The number of children to be supported 3. The appropriate federal child support table for the province or territory in which the non-custodial parent lives in There are separate tables for each provinces/territories, but are very similar. The difference is the results of different provincial income taxes. These tables must be consulted by the paying parent. The table guidelines are intended to provide: consistency, fairness, objectivity, and predictability Courts • • • •

may require additional payment for special expenses like: Reasonable child care expenses Medical and health related expenses over $100 not covered by insurance Expenses for extracurricular activities Post secondary education expenses

Can be reduced if it causes undue/excessive hardship for the paying parent, can only be claimed if parent has a lower standard of living than the recipient Child abuse – any behaviour that endangers the development, security or survival of a child Forms • • • •

of child abuse Physical – deliberate force used against child Sexual – sexual activity with child Emotional – attacks on child’s sense of self-worth Neglect – lack of attention to child’s needs

Goals of Child Protection Legislation: • The best interests of the child are the most important concern • The child must be protected and the family must be support as the basic unit of society Purpose of Child Abuse Registry – keeps a record of information about reports of child abuse • It makes it harder for parents to cover it up *If name is incorrect, they must prove there is no abuse has occurred and their name will be removed Society Ward Ship – allows child custody to be transferred to child protection agencies on a temporary basis Crown Ward Ship – allows the child to become a permanent ward of the Children’s Aid Society; this is most permanent because it raises the child until they are of legal age Adoption – the process of gaining the legal rights of a parent to a child and raising the child as one’s own Parental Consent – biological parents must give permission to put child up for adoption because this process breaks the link • Must be honest, informed and given freely • Any consent that is not well informed is illegal • If parent cannot be reached, court can issue consent • Child must be 7-14 days old Placement – the process of matching a child and adoptive parents

Withdrawal of Consent – parents may have a change in heart, so they are given 21-30 days in which they are allowed to withdraw their consent and not give child up. During this period child usually lives in a foster home Domestic Adoptions • Court hearing grants adoption • If child is over 7, they need to give consent • The court has to know that parents are suitable for child • After adoption, the birth certificate is changed and birth ties are broken Private Adoptions • Arranged by individuals or agencies licensed by the government • Usually for a pregnant woman who wants to give up their child and are seeking adoptive parents or when adoptive parents ask to make arrangements with a woman planning to give up her child • Only one set of parents are proposed and birth parents may select them • Cost up to $10 000 • Waiting period is much shorter Adoption Disclosure Register Have two essential services: • Serves as register for adult adoptees, birth parents/relatives who wish to contact each other • Conducts searches for birth parents/relatives at the request of the adoptee Can stop the register process at any given time The Family Law Act, 1986 – recognizes marriage s an equal partnership and entitles both spouses to share the value of everything acquired during marriage, with a few exceptions. • It divides on the value of property, not specific property • Spouse with the greater net family property has to give the other an equalization payment (half the difference between the two net family properties) Matrimonial Home – the home in which spouses live while married, generally the most valuable asset • Applies only to legally married couples and must be located in province • Both has equal rights to live in the home and to share the proceeds from selling it • Legal owner cannot force the other spouse to leave Three Principles of Law for Division of Family Property 1. Property is to be divided equally 2. Spouse primarily responsible for child/home management should be legally recognized 3. Contribution from each should be legally recognized Exemptions to Equal Division • Length of marriage • Length of separation • Date when asset was required • Gifts and inheritances

Spousal Support – money paid by one spouse to another after the marriage breakdown is to compensate the other spouse for any losses and to assist them until they gain selfsufficiency Factors when considering support are: • Assets and financial status of each spouse • Ability to self support • Ability to provide support • Age, physical and mental health • Length of marriage • Length of time required to upgrade job skills • Length of time spent at home raising the family Common Law Marriages • Do not get the divide the property equally, they can only claim what they own • Same right to support as married couples • Have the right to pensions • No automatic claim to the estate of the deceased partner, unless it’s in a will • Same-sex couples have the same rights as common law couples Domestic Contract – any contract made between partners in a relationship 1. Marriage contract – married or getting married; concerns property and obligations 2. Cohabitation contract – common law/same-sex/living together; concerns property and obligations 3. Separation contract – separating partners; concerns property and obligations Must be dated, written, signed by both parties and witnessed by one who is not related May terminate if both mutually agree Contract – a voluntary agreement between two or more parties that create a legal relationship and are enforceable by law Elements of a Contract 1. Offer – a specific proposal 2. Acceptance – acceptance to the offer a. Must be communicated clearly or indicated by an action b. Must occur in a fashion specified in the offer c. Must be unconditional, without changes 3. Consideration – include something of value given and received 4. Consent – meeting of the minds (Both parties clearly understand the rights and responsibilities) a. Must not occur under: i. Mistake – invalid if: 1. Common mistake – error about same key fact 2. Mutual mistake – different understanding of the material subject 3. Unilateral mistake – unfair advantage to the other party ii.Misrepresentation - a false statement (innocent/unintended or fraudulent/intentional) iii.Duress – threat or violence used to pressure iv.Undue influence – Same as duress 5. Capacity to Contract – not everyone is entitled to a contract, this is intended to protect individuals who may not have the ability to make decisions based on their best interest 6. Lawful purpose – must be for a legal purpose and the consideration must be legal too