Beruflich Dokumente
Kultur Dokumente
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Precedent
Stare decisis
– Deciding cases on the
basis of situations of
similar facts.
Lower courts follow
decisions of higher
courts.
Equal rank courts
follow each other’s
decisions if possible. 6
The Constitution
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Statute Law
Laws debated and May create, amend,
enacted by or eliminate laws.
government. Currently, the most
– Criminal code of Canada important source of
. law.
Only federal
government can
enact criminal law.
Subject to the
Charter of Rights
and Freedoms.
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Case Law
Specific interpretation of the
statutes in a particular case.
Becomes the subject of appeal to
higher courts.
Ruling of the highest court
prevails and must be followed by
lower courts.
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Administrative Law
Written by regulatory agencies.
Enforce rules in specific areas.
– E.g. environment, hazardous
products.
May be enacted by federal, provincial,
and municipal governments.
Includes criminal penalties.
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The Rule of Law
Scope of law
– Law applies to all.
– No one is above the
law.
Character of law
– Laws should be clear
and made public.
Institution of law
– Independent judiciary.
– Written laws, fair
hearing.
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Canadian Charter of Right
Enacted April 17, 1982.
Protects civic, privacy and
legal rights.
Also deals with equality rights
but allows for affirmative
action.
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Legal Rights
Life, liberty, and Presumed innocent.
security of the Legal counsel.
person. Bail.
No unreasonable Speedy trial.
search or seizure.
Fair and public
No arbitrary hearing.
detention or
imprisonment.
No cruel or unusual
punishment.
Remain silent.
Informed of
charges. 13
Principles of
Fundamental Justice
Right to silence
– Use of undercover agents, jailhouse
informants.
Right of disclosure
– Crown must make evidence available to
defence.
Right to full answer and defence
– Right to question the complainant.
Not guilty by reason of insanity
– Detention must be reviewed every 12 14
months.
The Nature of Crime
A crime is any
behaviour that
– is harmful.
– is prohibited by
criminal law.
– can be
prosecuted.
– in formal court.
– results in
punishment.
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Seven Elements
I. Legality I. Concurrence of
– Substantive law. intent and action.
II. Mens rea II. Harm must be
– Guilty mind, done.
criminal intent. – To individual or
– General or specific public, physical or
intent. mental.
III. Actus reus III. Act must cause
– Actual behaviour, the outcome.
not just fantasy. – Time delay.
– Includes criminal IV. Punishment
negligence.
– Must be specifically
stated 16
Summary Offences
Minor offences.
– E.g. communication for purposes of
prostitution.
Maximum penalty $2000/ 6 months.
– Up to 18 months in a few cases.
Speedy procedure.
Always heard by provincial court
judge.
– Must be heard within 6 months.
Sentence served in provincial facility. 17
Indictable Offences
More serious offenses
– Maximum penalty of two or
more years.
Absolute jurisdiction
– Minor offenses tried in
provincial court.
Election offenses
– Accused may opt for jury.
Supreme court exclusive
– Serious offences heard only
in superior court (e.g.
murder). 18
Hybrid Offenses
May be treated as either
indictable or summary.
Prosecutor decides which option
to take.
– Decision is based on context of the
offence, offender characteristics,
etc.
– Decision may be influenced by
police.
E.g. sexual assault level 1. 19
Seriousness of
Offences
Sexual Assault
Level 1 (hybrid)
– Common sexual assault.
– Summary- maximum 18 months.
– Indictable- maximum 10 years.
Level 2
– Weapon, threats, harm.
– Maximum 14 years.
Level 3
– Aggravated sexual assault.
– Maximum life imprisonment.
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Homicide
First degree murder
– Planned, peace officer, during another
crime.
– Mandatory life imprisonment. No parole for
25 years.
Second degree murder
– Other intentional killing.
– Mandatory life imprisonment.
– Parole eligibility may be set between 10
and 25 years.
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Homicide
Manslaughter
– Assault, criminal negligence, in the
heat of passion.
– Maximum of life in prison.
Infanticide
– Death inflicted on newborn by
biological mother.
– Maximum sentence is 5 years.
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Mala in se and Mala
Prohibita
Mala in Se Mala Prohibita
Bad in and of Bad because
themselves. they are
Consensus prohibited.
crimes. Conflict or
Reflects victimless
widespread crimes.
agreement. Reflects
– E.g. murder, community
sexual assault. standards.
– E.g. prostitution, 24
drugs.
Criminal Law Reform
Anti-Gang Legislation
Bill C-95 (1997) Laws deal with
amended by Bill C- – Enhanced
24 (2001). sentences.
Gang- 3 or more – Use of explosives.
persons
– Electronic
participating in
surveillance.
crimes in the past 5
years. – Restricted bail.
– Peace bonds.
– Proceeds of crime.
– Parole
restrictions.
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Safe Streets Act
Ontario, 1999.
Response to increased
panhandling, “squeegee kids”.
Limits soliciting.
Maximum fines range from $500
to $5,000.
Up to six months in jail.
Issues of discrimination.
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