It is not enough to just tell people to think let alone ‘think critically.

’ There are different steps

and methods that exist to help people do this effectively. One method is called the General
Inquiry method, which allows you to act on the decisions you have made after examining
an issue!

This course deals with primary source material and extensive research: we can choose to
deny it outright, accept it on faith alone or attempt to understand.

There are many widely held definitions of critical thinking. Here are features that are
common to most:
★ Distinguishing fact from opinion
★ Assessing the reliability of a source
★ Distinguishing relevant from irrelevant information
★ Detecting bias
★ Identifying unstated assumption

There are 5 general steps to the General Inquiry/Critical Thinking process:

★ Define a problem
★ Judge information related to the problem
★ Draw your conclusions and develop possible solutions
★ Devise and implement a Plan of Action!
★ Review your results, reflect, and begin again

5 ‘tools’ that a Critical Thinker should possess include:

★ Relevant background knowledge
★ Understanding appropriate criteria for judgement - grounds for decision making
★ Critical thinking vocabulary
★ Relevant thinking strategies: use different tactics to attack a problem
★ Be a careful critical thinker - conscientious Habits of Mind

THE RULE OF LAW

1. SOCIETY NEEDS LAWS

2. LAWS CANNOT BE MADE ARBITRARILY

3. NO ONE IS ABOVE THE LAW

The laws of society should reflect the values + beliefs of the people
As society changes, so do laws — not as fast as we may want them to!
In the 1st unit, we’ll look at the structure of the Canadian Legal System and some of the
historical influences.
We’ll look at:
- The connection between law, morality, and justice
- The influence of British law
We’ll discuss:
- Constitutional law, common law, and statute law
- Clarify the complexities of the Canadian legal system
- Division of power in Canada
- Different branches of government
- Procedure for enacting statute law

Law in Our lives

Law is part of everyday life — work, school, drive, rent, buy, talk
Laws reflect the society of any period

Why study law?

- To ensure that it continues to work
- We need to be able to make informed thoughtful change
- Study of law = study of people
- You can make money
- Don’t act, nothing changes

Rules vs. Laws

- Rules aren’t enforced by courts
- You can opt out of rules — not laws

What is Law?
- They regulate our social, political, and economical activities
- Laws restrict who can live where, what you can buy, who gets your money when you
die
- Different from place to place
- Some say: whoever is in power makes the laws
- Others accept law as a social necessity
- Sounds good!
- A civilized people’s attempt to regulate life on the bases of reason + fairness
- They reflect values as well as practical concerns

1st laws based on common sense and practicality?

Great Laws of Manu (India) 1280 - 880 BC
Code of Li k’vei (China) 350 BC
Theft, robbery, prison & arrest
Clearly laws from different countries and cultures had much in common

The Code of Hammurabi (1792 - 1750)

King of Babylon
300 codified laws (Codification - the action or process of arranging laws according to
a system or plan)
Attributed his laws to the gods
They depicted a patriarchal society where wealthy were given more protection
This wouldn’t happen today!
Retribution was the order of punishment: punishment inflicted on someone as vengeance for
a wrong / criminal act
However there was Restitution (restoration of something lost or stolen to its proper owner)
and the strong were expected to help the weak … and people should not lie.

Mosaic Law
500 years after Hamm
Punish a deliberate action as opposed to just an action
Also punish the guilty party — not the daughter!

Greek Law
Use of jury
Citizens (using the term loosely) were meant to be active

Roman Law
Laws must be recorded
Justice is not left to judges alone
Public protection of crimes
Victim compensation
Protected the plebs from abuse
Created lawyers!
Justice was becoming too complicated

Justinian Code
Beginning of Civil and Criminal law
Codification of Roman Law

Napoleonic Code
Tried to make law available to common man
Civil law: still in affect in Quebec
Natural Law ; 4 claims consistently made
1. There are immutable principles of law which exist as part of the natural realm; they
define what is right, just and good for man; they are the standard he must adhere to
in his actions

2. These unchangeable principles are discoverable by all men through the right use of
reason

3. All men (in all places and all times) are subject to these principles

4. Laws created by the state only have jurisdiction primacy when they are in
accordance with the principles of law in nature

The Basic Goods

1. Life
2. Reproduction
3. Educate one’s offspring
4. Seek God
5. Live in society
6. Avoid offense
7. Shun ignorance

Natural law v. Rule of Law

Instinct and reason combine to create the natural law

Influences on Canadian Law

What’s British in Courts
the Queen, black robes, gowns, hierarchy
Trial by Ordeal
guilt based on outcome of torture
God became judge
Trial by Oath Helping
there was a time when the Bible had influence
Trial by Combat
God will help the innocent: leads to today’s adversarial system … my lawyer’s
better than yours
The Feudal System
Divine Right put some above others
Each Nobleman could judge as he saw fit
there was a need for Common Law

Common Law
 another must know!
We still have assize courts and circuit judges
creation of case law (must know!)
common to all
Each time a new case was dealt with, it became precedent (must know)
one judge would stand by this decision (stare decisis)

Legal Reforms
Who was making law … was there Divine Right …. time for the Magna Carta!
Charter that gives right to the citizens, right to justice and fair trial

Magna Carta (meaning “The Great Charter”) 1215:

- Dealt with mediaeval rights and customs
- Powerful symbol of liberty around the world
- Still part of the law today
- Everyone had a right to fair trial
- No man should be judged by anyone but their equals
- Only applied to free men; most people were ruled over by their landowners
- Reissued 3 times
- 1216, 1217, 1225

Rule of Law
The Magna Carta was the start of no one being above the law
Habeas Corpus
Anyone arrested or detained without explanation is entitled to a court appearance
This results in our Bail System and is now entrenched in our Charter of Rights and
freedoms
Aboriginal Law
We thought they had no laws or social organization … gee it just wasn’t codified.
Aboriginal Law is making a comeback in society and we’ll deal with it later.
Reflecting on Our Roots
Even in our secular society of today, we must draw from beyond (morality) if we are
ever to have just laws

Magna Carta (The Great Charter)

Let us return to the days of Robin Hood and King John. That would be in 1215 and
Robin Hood had nothing to do with it, he was just hiding in the woods.
Anyways, King John was having a grand time spending all the money he could by
raising taxes constantly. Well, the Nobles and Businessmen had had enough and met with
King John at Runnymede (outside of London) and they forced him to sign this Charter that
took away the concept of Divine Right.
It was the beginning of the Rule of Law (important) AND it began Habeas Corpus
where you couldn’t just hide people in dungeons: they had to have their day in court. So it
also began the concept of our Bail process today.
Classifying the Law
The purpose of this chapter is to discuss the sources of law in Canada and to clarify how the
law is organized into categories

Sources of Law in Canada

The Pyramid: Constitutional, Statute, Common

Common Law
Previous legal decisions
Now - Case Law - previous case rulings
Remember stare decisis relying on others' decisions
However: new precedents can be set because of technology, cultural change or
even interpretation
Note: judges are required to follow the rulings of superior court judges, unless they
can distinguish their case (stare decisis)
Also: provincial court judges must follow the decisions of supreme court judges of
other jurisdictions!

Statute Law
passed by elected representatives
Acts become law when completing formal procedure
Each political jurisdiction is entitled to make law over matters that they have
authority

Federal Government
Canada Wide - Know your list: ie: criminal law, employment, banking, defense
justice.gc.ca - you want laws - you got ‘em

Provincial Government
hospitals, police forces (watch out!), natural resources
bclaws.ca got what you want

Local Governments
Created by the provinces and territories to provide services that are best managed
under local control — responsible for services within a city or region
local public transportation, police and fire protection, water and sewage
services, recreation services

Aboriginal Governments
Under federal jurisdiction, bands are like municipalities but agreements made with
provincial governments can give Aboriginal people much more power

See:
http://nisgaalisims.ca/files/nlg/The_Constitution_of_the_Nisga_a_Nation_October_1998_..
pdf

Constitutional Law
- Determines the structure of the federal government and divides law-making power
- Limits the powers of government
- Sets out certain basic laws, principles and standards that other laws must adhere to
- Courts will interpret laws to ensure that they are consistent with the constitution
- Courts may strike down laws if found in violation
- this can also be considered law making by the courts!

Monarch

Governor
General

Supreme Court

Prime Minister
& Executive Branch
Cabinet

Senate House of
Commons

The People

Categories of Law
Legal Disputes never fit neatly into one package! But let’s try.

International Law
Independent nations and their relations to others
set by custom as there is no one overruling body
Treaties, agreements
extradition and trade agreements
defence treaties
Who owns the moon and outer space?
Note: there is no international police force that’s why many countries hate America!

Domestic Law
Substantive and Procedural
For our country alone! You have no protection outside of Canada … don’t go smoking
dope in Singapore and then cry about a 10 year jail sentence!
Substantive Law
defines the rights, duties and obligations of citizens and governments
ownership of property, legal contracts, driving offences
Note: Substantive Law is from all jurisdictions
If your actions do not fit a codified offence, you didn’t break a law
Procedural Law
the method of enforcement
allows for all people to be treated fairly
Public Law
Substantive Law breaks down further
Regulates relationship between government and citizen — when you commit
criminal offence, you break a public law, not a private law
however, you can go against the person privately for damages
Administrative Law
Refers to government boards and tribunals; regulates government decision making
Labour Relations Board
Criminal Law
cause harm to others and is such a serious nature that it is upsetting to all of society
you acted against the Crown, so the police can investigate and the Crown can
prosecute

Private Law
Private Law = Civil law — one against another (or group)
Tort Law
the category of civil law that holds people accountable for harm caused to another
person whether or not harm was intended; can be an organization or an individual
person
Safeway didn’t put up the ‘Slippery when Wet’ sign!
 It wasn’t my fault
Mr. McC thinks ICBC staff incompentent — they agreed!

Contract Law
Civil law branch that sets out laws between individuals and/or companies (exchange
of promises/agreements made between them are enforced by the law)
You promised to teach me, but I’m still stupid!
What do you mean it now costs $18,000?
Family Law
Branch of civil law that deals with the branches of family life; marriage, divorce,
children
Wills and Estates
Division and distribution after a person dies; very important when there is no will, it’s
easier when there is one
Property Law
Focus on where property lines end and who they belong to
There is no record of your accepted offer
Employment Law
Deals with relationship between employers and employees

The Law

International Domestic
Law Law

Substantive Procedural
Law Law

Public Law Private Law

Constitutio Administrat Crimi To Contra Fami Wills Proper Employm

nal Law ive Law nal rt ct Law ly & ty ent Law
Law La Law Estat Law
w es

Not all rules are laws, but all laws are rules
Government and Statute Law
Laws Must: (Mr. McC says this is going to be on the test :/)
1. Meet legal challenges
2. Meet approval of most citizens
3. Be enforceable
4. Balance competing interests

We will learn how the powers for making law are allocated and the roles different agencies,
and us, play in making laws

Canada’s Constitution
Canada was initially created out of fear — fear that the USA would take over through their
belief in ‘Manifest Destiny’.

Originally there was desire to stay under British rule

Britain took no strong stand and it was Britain that passed the Act making Canada a country

BNA Act - 1867 ⭐️

Still a major part of our constitution — defines how Canada should be governed

Canada could not enter into International trade agreements (dang Brits still had control!)

A Federal System
Should it be American style — no too much power to state — British unitary style — no
Canada too large and diverse
Originally — exclusive control over its own jurisdiction, but central
government could overrule in cases of best interest
Monarch was head of state and there was the principle of Rule of Law

Division of Powers
Sect. 91 - federal powers - currency - postal service
Sect. 92 - provincial powers - education - religious rights
Provinces delegated powers to municipalities; municipalities only have power
because the provinces want them to, it could be taken away if they wished
Provincial governments determine what form municipalities take on, their
powers, and their responsibilities
Aboriginal rights are only recently being considered

Conflict of Power
That which wasn’t made clear, goes to federal government - residual powers
Airports - telecommunications
Sect. 91 states that the federal government can take authority for the purpose of Peace,
Order, and Good Government
 Pierre Trudeau took over the Oil Fields of Alberta so that power was reasonable for
all. This is still a sore spot in Alta.

Doctrine of Ultra Vires

Not within my power to do something; beyond my power
Beyond the powers - BC can’t unilaterally hand over federal land to First Nations because
it’s not within their power
See Attorney General of Alta v. Attorney General of Canada - pg.56

Patriating the Constitution

Canada became more and more independent from 1867 to WWII;
Mackenzie King hated the idea that Great Britain could tell Canada when to go to war
or had to be involved in international treaties
Yet, Canada could not amend its own constitution - it was a British Act!

Problems with the BNA Act

Canada could have become independent earlier than 1982, but the provinces and
federal government couldn’t agree on how to do it
Since it was such a problem to get the British to act, the Canadian governments
entered into shared cost agreements
Example: federal money for health, but provinces must follow federal guidelines

Constitution Act 1982

The Supreme Court of Canada told Trudeau that the federal government could patriate the
Constitution, but it would go against the unwritten principles

I haven’t got a clue what those would be … How could the Courts know

Trudeau pulled a fast one while Levesque was sleeping and the provinces agreed

BNA Act remained the same but there were 4 new elements:
● - equalization of services across Canada
○ Unemployment insurance, pensions, same payment across Canada, etc.
○ Created have and have not provinces
● - clearer legislation on who controlled natural resources
○ Provinces control their natural resources
● - formula for making new amendments
● - Charter of Rights and Freedoms
○ Highest law in the land
○ Protects us from the government

Principle of Equalization
 Richer provinces would carry costs to make health education and social services
equal across Canada (not same amount but costs shared)

Natural Resources
Provinces own and control - as long as they are nice; otherwise it was own and
control

Amending Formula
⅔ of provinces (7 provinces) and 50% of population
Issues that only affect one province do not need approval from others (but still cannot go
against the Charter of Rights and Freedoms)

Charter of Rights and Freedoms

This, as part of Constitution, made it the highest law
You can’t go against Charter of Rights and Freedoms
- Protects us from the government

Right - This is a legal, moral, or social claim that people are entitled to, primarily from their
government. For example: a fair trial.
Freedom - It is the right to live your life free of the government - but - there are limitations
on freedom.
Ex. hate literature

Recognizing Rights and Freedom

Exactly what rights should people have
Should some rights be absolute
Should everyone be entitled to the same rights
How can people ensure that governments do not restrict their rights and freedoms?
- Vote
- Petition our member of parliament; push issues
- Form protests

Historical Documents
The 2 great leading actions for humanity were the Declaration of Independence
(USA - 1776) and the Declaration of the Rights of Man (France 1789)
Inalienable rights - guaranteed entitlements that cannot be transferred from one person to
another
Universal Declaration of Human Rights - UN 1948.
Presents the fundamental freedoms of thought, opinion, expression, conscience,
religion, and peaceful assembly and association. (Not followed by most of the world)

Evolution of Rights in Canada

 Give your head a shake and consider the Human Rights Events in Canadian History -
it is an embarrassing legay!
In groups of 2-3, pick one of the following and do a quick research to present to the
class.
Komagata Maru
1900 Dominion Elections Act
1940 Communists Outlawed Japanese Internment
1942 Doukobhors can’t buy land (enemy aliens)
British Properties can’t sell to non-whites (1951)
Indigenous People denied right to vote until 1960

Komagata Maru
The Komagata Maru incident involved the Japanese steamship Komagata Maru, on which a
group of people from British India attempted to immigrate to Canada in April 1914, but most
were denied entry and forced to return to Calcutta. There, the Indian Imperial Police
attempted to arrest the group leaders.
1900 Dominion Elections Act
The Dominion Elections Act was a bill passed by the House of Commons of Canada in 1920,
under Robert Borden's Unionist government. The Act allowed women to run for the
Parliament of Canada. However, women from minorities, for example, Aboriginals and
Asians, were not granted these rights.

1940 Communists Outlawed Japanese Internment

Japanese were seen as spies, war measures act detained more than 90% of Japanese
They were stripped of their properties and sold them in order to pay for their internment

Canadian Bill of Rights

After WWII, like most of the rest of the world, Canada realized that there needed to
be a Bill of Human Rights to protect people.
Not until 1960, though, did the first Bill of Right show under Dief the Chief.
This sounded good for it had all the basics (life, liberty, personal security, freedom of
religion, and speech, right to counsel etc). But it was only a Bill, only applied to federal
matters, did not have precedence over other statutes, and could be changed any time in
the House of Commons.

Entrenching Rights and Freedoms

By entrenching Rights in the Constitution, people are protected no matter what
government is in power and they can override all other Statutes, protecting the dignity of
humans

Then of course there had to be a catch: the constitution could not be all powerful! We never
want too much power in any one place.

The Notwithstanding Clause

Section 33 of the Charter grants governments to pass laws that are exempt from
Section 2 and Sections 7-15 of the Charter for a period of up to 5 years: then a new
Constitution reform must be written (declared)
The first major time this clause was used was to protect language in Quebec: their
law to have signs in French only were ultra vires and shot down, but Quebec came back
and passed a new law invoking the clause.

Alberta tried to control the amount of money people sued for, but this didn’t work!

The opposing positions of the clause are;

Opponents of the clause state that legislators can invoke the clause for political
gain and want the Courts to have control, while those in favour claim that it should
be the legislators, those voted in that should be able to control (at least they can
be voted out).

Jurisdiction, Enforcement and Guarantee

Jurisdiction - Charter applies to all levels of government and all government agencies and
Crown Corporations

Enforcement - The Supreme Court has control: the role of the courts has changed
dramatically - instead of just interpreting law they are now upholding the rights of citizens.

When considering whether a person's rights have been violated the court will consider
1) Was the right infringed by a government or its agencies?
2) Is the right in question covered under the charter?
3) Is there violation within a reasonable limit?

The courts can strike down legislation using Sect. 52 or may leave time to have the
legislation amended
In criminal cases they can: exclude evidence, order a new trial or dismiss the case

Interveners
 ‘Friends of the courts’ - interested groups that may have input a case on the basis of
arguing for or against the use of the Charter
Defense lawyers argued that the accused must be able to face their accuser, but
women have been able to protect young victims behind a screen.
M.A.D.D. - Mothers Against Drunk Drivers
Guarantee
Section 1 - gives reasonable limits to rights and freedoms
See the Oakes case to understand the 4 criteria for limiting rights
and freedoms

R. v. Oakes
All 4 criteria must be met

The Fundamental Freedoms

Everyone has the following fundamental freedoms:
a) Freedom of conscience and religion;
b) Freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication;
c) Freedom of peaceful assembly; and
d) Freedom of association.

Freedom of Conscience and Religion

The classic case was the Lord’s Day act (1985): stores were no longer compelled to
be closed on Sunday
This has now blossomed to employees having the right to have their time off for
observance of their religious holidays
The issues of intent and extent are significant regarding religious freedom: a child’s
life is paramount to a parent’s religion

Freedom of Peaceful Assembly and Association

The term peaceful is vague, but under the Criminal Code a riot must consist of at
least 12 people and cause fear to persons nearby.

Associations are limited in a couple ways

Certain groups cannot create unions (RCMP) and criminals are often banned
from associating with their buddies while on probation or parole.

Democratic and Mobility Rights

 The right to vote has restrictions - age, mental capacity, location and registration

There has been an ongoing battle as to whether prisoners could vote - before NO!
Then after Charter Yes if less than 2 years, Now Yes period - they do not vote for the area in
which the prison is but a complicated process as to their location prior to incarceration

Supreme Court judges can now vote too - only the chief electoral officer and
returning officer are not allowed to vote

Mobility Rights
This is an ongoing problem where Canada brings in migrant workers to work in
certain areas and then these workers want to go to warmer or more hospitable climes.

Games are played with such acts as welfare to control the movement of people
(can’t collect for 3 months, so don’t come … if you have been a resident for 6 months, you’ll
qualify for this training program).

Also, Canada will not send people to a place where capital punishment is likely.

Legal and Equality Rights

Sections 7 - 11 deal with criminal issues
If Crown cannot prove the justification for a law, the law can be struck down
The old Section 17 of the CCC claimed that duress could only be used as a defense if
the threat was immediate (R. v. Ruvic 2001). The old vagrancy laws were dropped before the
Charter came in because it was known that these laws would fail any test.

Life, Liberty and the Security of the Person

Since a fetus is not a person, it is not afforded protection to life!

Sue Rodriguez lost her case because Section 241 of the CCC protected life of those most
vulnerable (1980).
- Wanted to be killed because there was no cure for the disease she had (amyotrophic
lateral sclerosis - ALS - aka Lou Gehrig’s disease)
- Once you hit a certain point you can’t have any quality life
- Wanted to be put down because she couldn’t have any quality life

The Supreme Court states that there must be a fair balance between the individual and
society. In Cunningham v. Canada (1993), it was +determined that Cunningham, a parolee
could be brought in for a hearing after being released on mandatory supervision.

Unreasonable Search and Seizure

 See R. v. Parker (2000) - legal cultivation and use of marijuana.

Arbitrary Detention and Imprisonment

Random stops by the police for the purpose of protecting society (seat belt checks,
road blocks) can be justified under Section 1 of the code.

Rights While Under Arrest

You are under arrest because … You can contact a lawyer.
- Must make it clear why they are under arrest, ensure that they understand

Rights When Charged with Criminal Offence

Trial must take place in a reasonable time! What does this say about Picton!
A person cannot give evidence against themselves. What about having the accused
state under oath what he was doing and justify his lame excuse?
- Cannot be forced to talk, don’t have to provide evidence against themselves

Cruel and Unusual Treatment

They wouldn’t let me have my teddy bear!
What is an excessive penalty? Difference between non violent and violent crime.
- Every sentence deserves its own understanding of the case
- We don’t want to put nonviolent people in jail

Rights of Witness in Court

What a witness says in court cannot be used against him for another trial … however,
it may help investigators to get other information.
There is a right to interpreters, other than in the two official languages.

Equality Rights
Everyone is equal, but some are more equal than others
A person with a disadvantaged background (Native) will be considered to be less
responsible for their criminal actions and therefore their penalty will be less!

Language and General Rights

Sections 16 - 22 of Charter
Thank you courts for sufficient numbers - that sure is specific!
Nunavit can use their traditional languages in all government actions

Aboriginal Rights
Sections 25 is there to protect culture, customs, traditions - this does not give new rights,
only protects those that they already had

Multicultural Rights
Don’t go stepping on my religion! I want to shop on Sunday because I’m in the Mosque on
Saturday

Charting the Record

Over 80 laws have been overturned, but even more have not come into effect.
The Notwithstanding clause can be misused by governments, but there are elections!

The courts are now an uncertain sea of value judgements. Secularism is now controlling our
lives - not our religion - which is more important? If there is no secularism, there could be an
Afghanistan here - look how powerful the religious right in the states has gone.

Secular view - not religious; the actual world view

Human Rights
- We say we live in a fair society but we don’t
Remember: a right is a legal, moral and social claim through entitlement
Put Human Rights to memory!
- You don’t have to put them to memory because they all make sense
Discuss how far do rights go looking at the examples - 2nd paragraph
The Charter protects people from government action, but Human Rights Codes are needed
to protect people from other people or organizations

Human Rights Legislation

Discrimination is often based on stereotyping
You know you are a red-neck when … you’ve spent more money on your pick-up
truck than you have on education
Stereotyping leads to prejudice…
All teenagers watch porno sites

The result of stereotyping and prejudice is discrimination, or discrimination involves putting

prejudice into action

There is little that the government can do about peoples’ attitudes, but they can create
legislation to correct and prevent injustices

Canadian Human Rights Act

All persons should not be hindered in or prevented from doing anything based on:
Race
Colour
National or Ethnic Origin
Religion
Age
Sex or gender
Marital status, family status
Physical or mental disability
Pardoned criminal conviction
Sexual orientation

The Act also deals with hate messages and pay equity
Sect. 67: Does not affect any provision of the Indian Act
However, this is not blanket protection as in Rose Desjarlais v. Piapot Band

Provincial Human Rights Codes

Subject to the Charter
Charter says … girls can play on boys’ teams
Is forced retirement even an issue anymore?
Discuss
Review: http://www.bchrt.bc.ca/
And report on a case to the class (1 class research and prep)

Warnings:
On baby stroller; “Caution: remove baby before folding stroller.”
On the label of a bottle of drain cleaner: “If you do not understand, or cannot read, all
directions, cautions and warnings, do not use this product.”

Administering Human Rights Legislation

Most cases are dealt with by commissions

Remedies
- Try to put complainant in the position where they would have been if no
discrimination
- Force a letter of apology
- Require stoppage of practice
- Payment for mental anguish
- Give back job
- Require organizations to create opportunities to make up for problems
- Force training of staff
- This usually works as holidays for government employees!
Grounds of Discrimination
 Since women were not able to pass the physical fitness test for the VPD, the
standards were lowered
This had to be changed!

Exceptions under law

Higher insurance fees for young drivers
Claim rates justify action
Bona fide occupational requirement
- you don’t have to do 15 pull-ups to be a good cop!
Affirmative Action! Don’t get me started!

Constructive and Direct Discrimination

Constructive - inadvertently exclude certain groups - not tall enough
Direct - refusal on basis of belonging to a certain group (female — firefighters)
Duty to Accommodate
Allow religious days off
but employer must not endure undue hardship … up to the employer to prove
Harassment in the Workplace
grounds found in Human Rights Code
sex, religion, colour, etc.
Constant use of the saying “That’s what she said,” qualifies for sexual harassment
Poisoned Environment
Real or perceived inequality
‘You’re too pretty to be promoted’

In partners: report on an incident of bullying in this school … don’t tell me there aren’t any …
and tell the class why we have to treat people this way and how it would feel to try and stay
in school … How much crap do we have to put up with?

Accommodation and Facilities

Young single males need not apply
Welfare moms not wanted
Why are there never enough woman’s cans at arenas?
- Because women have maternity leaves (will be away from work for longer periods of
time compared to men)
Meeting Special Needs
Do you think that guy should be suing Richmond for not putting in talking signs?
Should suffering from an addiction to drugs or alcohol be considered a disability
protected by Human Rights?
3 factors to be considered when accommodating Special Needs: costs, outside sources of
funding, and health and safety
Why do we need Braille keypads on drive-through ATMs?
Why are women allowed separate fitness gyms when men are not?
Read p. 134 & 135: Considering that we don’t feel fear of terrorism in our daily life, with your
partner, write a brief 500 word editorial comment regarding security at out airports. Think in
terms of the whole body scan and the fact that apparent Muslim women were allowed to
board a plane without ever showing their face.

Definitions
Adversarial System: mono e mono; one person (advocate) against another; “I’m gonna
prove you wrong!”; that’s our court system
Case Law / Common Law: based on previous laws
Habeas Corpus: “I have the body”; you can’t keep people hidden in the dungeon, they have
to have their day in court
Magna Carta: 1215AD; beginning of the Rule of Law and it is the beginning of Habeas
Corpus
Rule of Precedent: when there’s a new ruling, it becomes precedent
Stare Decisis: Standing by their decision (a judge)
Restitution: to pay back; to make up for it; to make amends
Retribution: you’re gonna pay for what you did ; eye for an eye
All laws: (the chart that we did) (not on the test)
Jurisdiction: Charter applies to all levels of government and all government agencies and
Crown Corporations
Amending Formula: ⅔ of provinces (7 out of 10) must agree and make up 50% of population
Patriate: to bring home
Intra vires: within power
Ultra vires: outside of power
Rights: a legal, moral, or social claim that people are entitled to, primarily from their
government (ex. A fair trial)
Freedoms: it is the right to live your life free of the government - but - there are limitations
on freedom; government can’t interfere (ex. Hate literature)
Residual Powers: new things that come up for/in the Constitution, the internet; who’s gonna
make laws for the internet; it usually goes to the federal government
Entrench: put within the Constitution Act therefore nothing can change it (can’t be changed)
other than by the amending formula
Inalienable Rights: guaranteed entitlements that cannot be transferred from one person to
another
Notwithstanding: government can go against Charter of Rights and Freedom if they can
prove it’s necessary for society (have to go every 5 years)
Interveners: “friends of the court” : interested groups that may have input on a case on the
basis of arguing for or against the use of the Charter
Town in Northern BC is suffering from a lot of breaking and entering. The mayor says that
we have to have a meeting and figure out what to do. The only people who show up are the
mayor and an RCMP officer. They try to figure out what to do. We know that it’s kids that are
doing this because only kids do breaking and entering so we give them a curfew. But not
the football team because they’re good kids and so they can stay outside later.
- Football players are apparently above the law
- Curfew against kids (?)
- Ruining society (breaking and entering)

Difference between a right and a freedom

The Nature of Crime

Defining Crime and Criminal Offences

Crime makes for great TV, Movies, Books and News, but in reality all it does is hurt.
Crime is an ac t or omission of an act that is prohibited and punishable by federal statute.
4 conditions must exist for behaviour to be considered criminal
a) must be considered wrong by society
b) act causes harm to society in general or to those who need protection
c) the harm must be serious
d) the remedy must be handled by the criminal justice system

The perception of what is crime is not static.

Criminal Law
Crime hurts individuals and society — theft — raise prices
Victimless crimes — prostitution — hurt societal values
Purpose of Criminal Code (+ others) then is to :
protect people and property
maintain order
preserve standards of public decency
We all have a responsibility (not fear) to act appropriately
In addition to not committing crimes, we have an opportunity to participate in crime
prevention
Neighbourhood Watch, Block Parent
Crime Stoppers ticks me off!
(Block Watch, Crime Stoppers, M.A.D.D.)

The Criminal Code is changed to…

- To catch up to the morality of the country + better reflect changing societal values
- To catch up with advances in technology which create the need for new laws
- Outdated laws are revisited or repealed
Provincial Jurisdiction
Quasi-criminal / regulatory — less serious (considered)
Wildlife Act — Motor Vehicle — Liquor — Consumer Protection
Many of these laws now carry prison sentences and differ according to the needs of the
province
Provinces pass laws using the same process as the Federal Government - no Senate
through and the Supreme Court of BC does not review Provincial Law

The Elements of a Crime

Actus Reus: the guilty act
Action - causes harm to person(s) or property
ie: assault - purposefully striking someone
- If the strike was not on purpose - no crime
Note: assault is striking another without consent, so “Let’s take it outside” is not
assault until someone goes overboard.
The book (p. 143) implies that defining assault is easy and clear … NO!
What was the intent and extent of the action?
Also: the Actus Reus can also be an omission - didn’t feed the child or a ‘state of being’ - in
possession of stolen property

Actus Reus must be voluntary: not coerced by another, nor done while being out of control
Note: being intoxicated or stoned may be a mitigating circumstance, but not usually
a
complete defence

Mens Rea
The guilty mind — meant to do something wrong or reckless regarding the
circumstances — willfully act without regard to the consequences (7 types)
General Intent
act without an ulterior motive or purpose — damage property due to drunken rage
Specific Intent
Break your neighbours fence in a drunken rage because …
Getting back at someone; an offense may be committed intentionally or recklessly
Intent: desire or purpose to achieve a particular consequence
Motive — reason for doing something; rob you to get money for my drug habit; motive does
not have to be proven to be found guilty - the simple intent of robbing you and obtaining
money is good enough
Knowledge — knowing that the bill you passed was counterfeit is good enough to prove
mens rea
Criminal Negligence
- Failed to take precautions that a prudent person would be expected to take and
shows wanton or reckless regard for others
- Dropping boulders off the overpass on the highway

Recklessness
- Consciously taking unjustifiable risks that a reasonable person would not take

Willful Blindness
- Ignoring the possible outcome or consequences; choosing not to see something —
so what if I smash into the window and break it!
- Allowing friends to steal from your store
- Buying something you know is stolen

Strict and Absolute Liability

Regulatory Offences (speeding, seat belts) do not require mens rea and broken into
strict liability and absolute liability offences
Strict liability — We took all safety precautions known
Absolute liability — You were following too close
These matters do not have mens rea, so Canadian law has said there can be no jail time

Liability - you’ve done something wrong, you are responsible for an action
absolute liability - you can’t defend this; you can’t make up excuses
strict liability - the only way you can say that I wasn’t responsible is that I tried everything I
could for it to not happen (due diligence)

Involvement in Crime
Are we part of the solution or are we part of the problem?

The Perpetrator (Perp)

Directly involved in the crime — must be identified at the scene
the driver of the getaway car, the person ‘standing six’ are examples of being
co-perpetrators as they are at the scene

Aiding
Not directly involved in the crime itself but just as responsible
the student that gives another’s locker combination, knowing that that
student will steal the ipod.

Abetting
Encouraging — cheering or even watching a fight should make you guilty of the
offence itself, but don’t expect the law to uphold its own principles!
Counselling
Telling people how or when to commit a criminal offence
‘Glad’ student teaching others how to empty their parents account

Accessory After the Fact

Helping a person escape
Parent telling the police that they had bought that ipod but didn’t have the receipt
any more

Party to a Common Intention

You got together with your buddies, now whatever they do, you are just as
responsible
If two of you are standing watch while a third breaks into a locker and one of the
lookouts beats another kid who happens to be in the wrong place at the wrong time,
all three of you are responsible for the assault.
You cannot say “I didn’t plan on anyone getting hurt”

Incomplete Crimes
contrary to the Actus Reus stating a crime must have been completed
1) Attempt — okay let’s deal with shoplifting
2) Conspiracy — watch who you hire to do your killing for you!
it was a great plan but you hired the wrong person!

Conspiracy - planning together; make plans to commit an offense with someone;

conspiracy can include counselling
Due diligence - i tried everything i could for it to not happen but it happened anyway - a
good defense
Knowledge - doing something even though you know is wrong - the awareness of a fact or
circumstance
Parties to an offense - co-perpetrator; person that’s also involved
Attempt - having an intent to commit an offence, does or omits to do anything for the
purpose of carrying out the intention
Act of omission - not doing something
Video:
Criminal offense: any offence enacted under Parliament’s criminal law power
- Includes every offence in the Criminal Code
- Offences in the Controlled Drugs and Substances Act
- Other crimes enacted under the federal power
- Customs → offense, Copyright Act
- Colloquial definition: Any offence where a person faces the possibility of jail
- media, criminal law??? Aimimal Law AR???
- Any offence that requires you to go to court and defend yourself
The two types of offences are treated differently under the law
Regulatory Offences
- Federal offences enacted under other powers — regulatory offences
- Enacted in order to ensure compliance
- Ordinary people are more likely to be charged with a regulatory offence than
a criminal offence; you can still face jail but it’s not technically a criminal
offence

What’s the Difference?

1. Penalties - imprisonment available, but usually much lower. Often no imprisonment
possibility. (MOST SERIOUS)
2. Criminal Record - no “moral opprobrium” for regulatory offending
3. Procedure - procedures less significant for non-criminal offending
4. Mental elements - less required for non-crimes

Procedure:
s. 11 → offence
(d) BAD
(e) Bail

Bottom Line
- Much of what we will discuss addresses ALL offences (criminal and regulatory)
- Some of what we discuss only for crimes; other parts only for regulatory offending
- Always important
The Criminal Court System

Supreme Court of Canada

Federal Court of Appeal Provincial Superior Court

(Appeal Division) (Appeal Division)

Federal Court of Provincial Superior Court

Canada

The Provincial Courts (vary in names)

Criminal Youth Family Small Traffic

Court Justice Court Claims Court

Note: Courts were originally enclosures (like a courtyard) where judges sat on one side of a
bar and all others on the other side
The expression ‘called to the bar’ comes from being allowed to practice law after
passing all training and being deemed qualified.

The Criminal Court Structure

Provincial legislatures are responsible for the organizing, administering and
maintaining of the Criminal Court System. Federal government appoints Superior Court
Judges.

The Provincial Court System

Provincial Courts have trial while Superior Courts have both Trial and Appeal
divisions (need to know)

Criminal Division
Provincial Court - Judge Alone (no jury)
1) Summary Offences and Hybrid offences where the Crown is proceeding summarily
 2) Indictable offences where looking for less than 2 years in jail (5 now in some
jurisdictions)
3) Provincial violations (Wildlife Act)
4) Preliminary hearings - is there a good enough case to go to Supreme Court

Superior Court - Judge alone or Judge and Jury

1) Serious Criminal Offences (side-bar, aren’t all!)
2) Defense’s Choice for judge and jury except in the most serious cases (murder)
3) Appeals Division - hears Appeals from both Provincial and Superior Court

Federal Court (Superior Court)

often uses the same administration office as provincial courts also does civil cases
involving Federal Legislation
(Unemployment Board)

Supreme Court of Canada

1 Chief Justice and 8 Justices appointed
3 must come from Quebec then usually 3 Ontario, 2 West and 1 maritime

Other Courts
Tax Court and Court Martial — both under Federal Jurisdiction Native Bands in BC
(Nisga) will be allowed to set up their own courts (Provincial Court level)
Sentencing Circles are being used more in Native cases

The Participants
Guilt Must be Proven Beyond a Reasonable Doubt
Crown must prove the case — not defence disprove it
The evidence, testimony and roles played are critical to keep integrity

The Judge
Admissibility of evidence
Controls events (order) in courtroom
Interprets the law
Jury Trial — judge is ‘trier of law’ jury is ‘trier of fact’ (verdict)
Justice of the Peace can issue Arrest Warrants and Search Warrants
- Strong legal background

The Defence
Accused in the Defendant
A person may represent themselves — dumb move
Duty Counsel is available in the 1st instance but then a lawyer will need to be hired
Duty Counsel will help with bail
Help accused get a proper lawyer
The Prosecution (Crown)
Must bring forward credible evidence of a crime
Prepare a prima - facia case
- Absolutely essential; all the prime facts that prove a person guilty
- Without it, prosecutors can’t continue; prosecutors will not take up cases unless
they’re satisfied that the they will be able to have a proper case

Court Personnel
Court Clerk & Reporter - now 1 role instead of 2 except in complex cases with
numerous documents and exhibits
Reporter has a taped record of the proceedings — to have it printed costs probably
about $12 a page now.

Sheriff — provincial employee — courtroom security, accused management, calling

witnesses and controls jury actions
BC’s Sheriffs have numerous other duties and can be a fulfilling, but low-paid,
occupation

The Witness
Cops usually go first and in many cases are the only witnesses
Witnesses are subpoenaed to ensure attendance in court
Only expert witnesses can give opinion evidence
- Medical education
- Often psychologists
Can make oath on the Bible of Affirmation
- Have to make an oath, it does not have to be by the Bible

The Jury
Taken from the voters list - 12 people judge the guilt or innocence of a person

The Role of the Jury

It is a societal responsibility and an awesome responsibility
Qualifications — 18 years older, citizen of the Province
Exemptions for hardship must apply and must be valid

Jury Selection — this ain’t Runaway Jury — but there are 6 steps
1 - 3, random selection, face accused, possible objection faced
4. Challenge for cause - exclude a juror for; already making up mind, physically unable to
perform duty, criminal record
5. Peremptory challenge — exclude without reason — reading non-verbal cues - number of
challenges changes with severity of sentence
6. Juror’s oath
Note: You cannot bring up past behaviour until after the Accused is proven/found guilty
unless the Accused comes up to the stand and acknowledges their past behaviour

The Criminal Trial Process

Adversarial System - one on one
Presumed Innocent - doesn’t matter if you saw it on Youtube
Burden of Proof - Crown must prove case
The vast majority of cases are not jury trial

Opening - Judge has Crown and Defence introduce themselves

Charge is read by Court Clerk - Defence pleads
Note: of guilty plea, crown must still enter the essential elements of the crime into the
record

Crown opens Statement

Outlines case and how the matter will be proven
Defence usually accepts this without rebuttal other than to state the innocence of the
accused

Examination of Witnesses
Crown will have its witnesses waiting outside the courtroom and not listening to evidence of
others
- Defence usually will call for an exclusion of witnesses
Witnesses evidence is called direct examination and when the defence gets to ask
questions it is called cross examination
After Crown has presented her entire case Crown will state “the Crown rests”

Defence’s turn
First — try to make a motion of dismissal — court did not prove jurisdiction — police did not
state in which municipality the offence occurred — etc
Defence does its summary as Crown has before
Accused may chose to give evidence but is never forced to

The Rules of Evidence

When is testimony admissible? Objections
1. Leading Question: “You were on duty July 12th, correct?”
Should be: “Where were you on July 12th?”
2. Hearsay: “Tom told me that Bob said”
Police would phrase: “After speaking to Tom, I had reason to believe that Bob
may have said something that was pertinent to the case ….
 3. Opinion: I believe Bob was able to understand that what he did was wrong (only a
psychiatrist could state this)
4. Immaterial or Irrelevant: Bob’s always been a crook!
5. Non-responsive: Q. Was Bob with you? A. Yes, Bob is handsome.

Types of Evidence
All evidence must be ‘material’: important and relevant
Direct Evidence: testimony given by a witness to prove an alleged fact
Eyewitness: was at the scene and saw first hand
Physical: The gun
Statement: I asked the following questions and received the following answers
Expert: In my humble opinion, Mr. McC is brain-dead … I base this on the following …

Investigation and Arrest (Chapter 8)

Levels of Policing
Federal — RCMP (1873 - NWMP) Responsible for:
Customs & Excise - Drug Enforcement - Economic Crime - Immigration -
Proceeds of Crime - Criminal Intelligence (CPIC - Canadian Police Information
Centre) - International Liaison and Protective Services
In all, over 280 Federal laws 7 Regulations
There are nearly as many RCMP in Vancouver as there are VPD!
They also provide Provincial (Alta) and Municipal contracts (North Van) — cost basis
Provincial Police
(only in) Ontario and Quebec
Firearms — small rural areas
Municipal Police — West Van
Preserve peace - prevent crime - assist victims - apprehend criminals - lay charges -
execute warrants - bylaws (yetch!)
Aboriginal Police
Growing — same authority as Municipal police and trained with them

Starting a Police Investigation

Arrive at Scene of Crime
Protect injured — protect the crime scene — investigate
Protect and Preserve Scene
No one is to contaminate the scene (no looky-loo cops)
Thorough search — seize — ensure admissibility
All police have a Notebook (log) handy to take necessary notes

Officers’ Roles
 Patrol Officer usually first at scene and responsible for life and protection of scene
and evidence
Identification Officer (Scenes) preserves evidence for court
Investigation Squad — will take control of all matters for court
(These roles change amongst departments)

Identifying and Collecting Physical Evidence

Physical Evidence — anything real pertaining to the case — gun — print — DNA
Forensic Science will examine and analyze the physical evidence
Tools — have unique markings and can be compared to damage at the scene —
striation
Impressions — tire treds — running shoes — help me in a murder investigation
Class characteristics — general attributes — tred design
Individual characteristics — specific wear pattern on tire
Fingerprints — “but everybody in my hometown has the same fingerprints”
(statement under oath)

Visible Prints
Can be observed by naked eye
Latent prints
Caused by perspiration or oil on hands
Dusting — on metal or non-absorbent surfaces
Iodine-fuming — on absorbent surfaces (paper — cloth)
Laser beams can now be used to ‘raise’ prints
Note: prints are hard to obtain because they are often smudged
Body Elements and DNA
Processes are getting better for all types of body element exchanges but it still isn’t
any CSI
DNA testing has a 1 year lag time in Canada right now!

Procedure for Labelling Evidence

Chain of Custody — order in which items of evidence have been handled during a
case; proving that an item has been properly handled through an unbroken chain of
custody is required for it to be legally considered as evidence in court

It was in my control until I placed it in the Property Room and I picked it up in the
same form for court — my initials and number are still on the tags showing that it has
not been tampered with
Report must be clear and specific
Date and time
Where found — by who
Who handled it
 Where has it been since seized
Case #

[ VIDEO: Physical Evidences (Definition, Types & Nature)(easy notes) ]

What is Physical Evidence?
Physical evidence is any object that can establish that a crime has been committed or can
link a crime and its victim or perpetrator.
Anything can be physical evidence which can connect crime scene to criminal.
“In simple words, to count physical evidences cannot be possible.”
1. Body Material
Body fluids or materials found at a crime scene might include:
In case of poison, main parts of the body such as liver, gallbladder, brain, kidney, small
intestine, pancreas, uterus, heart and lungs should be analyzed.
Blood, semen, saliva, and vomit in dry or liquid state.
Hair., nails, fingerprints, etc.
2. Botanical matter
3. Chemical substance
Explosive: any object that has a residue of an explosive is useful, Alcohol, Paint, Drugs
4. Weapons
Firearms: pistol, revolver, gun, bullet, cover
Other arms: knives, axes, arrow, sword, hammer, scissors, stone, etc.
5. Disputed Documents
Examinations and comparisons conducted by document examiners can be diverse and may
involve the following:
❖ Typewriters, photocopies, printers, fax machines.
❖ Handwriting (cursive / printing) and signatures.
❖ Alterations, additions, erasures, obliterations.
❖ Indentation detection and/or decipherment.
❖ Cheque writers, rubber stamps, markers.
❖ Physical matching.
❖ Ink, pencil, paper.
6. (skipped the one before this) Tool marks
Tool mark as any impression, cut, gouge, or abrasion caused by a tool coming into contact
with another object.
They consist of small, commonly microscopic, indentations, ridges, and irregularities
present on the tool itself. For example, the tip of a screwdriver is never perfectly flat, but
shows small ridges along its edge.
7. Soil
Sand, clay, slit, peat, loam, chalk
Stick with tiers, mudguards, shoes, clothes, etc.

Information about modus operandi

Criminals, specially habitual criminals, have the same type of criminal manner. Same
criminal pattern of behavior helps to catch criminals.
Verification of statement
Statement of person (victim, witness, criminal) can be tested. AFter examination and
reconstruction of physical evidence.

[ END OF VIDEO ]

Arrest and Detention

Looking for more evidence once ‘reasonable and probable grounds’ have been met; must
have evidence to prove someone is guilty beyond a reasonable doubt
- Protects police officer from being sued
- Reasonable and probable grounds is far below “without a doubt”

Questioning the Accused

Police officers will usually asked questions of an accused (the book says ‘required’)
Charter Warning is without saying — Res Gestae statements excepted; exceptions
- Book says it’s required, but it’s not

Interrogation Techniques
Never do what the book says! “Tell me what happened”
You need to gain the accused’s trust which often means finding a common ground from
which to converse
There is no rule to investigation: it is what works without abusing the accused’s rights

Arrest & Detention Procedures

Arrest — legally depriving someone of liberty
Detention — legally depriving liberty for the purpose of investigation
To arrest:
- Identify self as police officer
- Advise accused of being under arrest
- Inform accused of charge (does not have to be absolute)
- Touch (take legal custody) the accused
- Advise of Charter Rights

To detain: do not need to take legal custody

Reasonable people accept this at this point and it does not have to lead to arrest

Reasonable Grounds
The police officer’s best friend
Once a person is arrested the police cannot simply leave him in jail!
Appearance Notice: before they have been charged of a crime
 This is where a person has committed a fairly serious crime, but not likely to commit
again immediately, has been identified and has been promised to attend court.
Appearance Notices can be given at the scene (shoplifters) or after a more
thorough investigation at the station

If someone is not yet charged with a crime, they might be given an appearance notice.
If someone is charged with a crime, they might be given a summons.

Summons - once they’ve been charged

Person will likely appear in court and does not need to be fingerprinted and photographed
ahead of time; blue slip of appear which has the date of the court

Arrest with Warrant

Police have arrested someone for a serious offence and they want them to appear in court
before being released.
Police complete their investigation and then swear out a warrant in front of a Justice of the
Peace (or Judge) and execute the warrant on the accused

Arrest Warrants are also where people have not appeared for court or have been identified
well after the incident

Arrest Without Warrant (Reasonable Grounds)

Has committed an indictable offence
Is about to commit an indictable offence
In the commission of committing an indictable offence
Some whom they believe has a warrant out for their arrest

Citizen’s Arrest
Finds committing an indictable (not hybrid) offence
Has committed an offence and being freshly pursued by someone with authority to arrest
The owner or person in lawful possession of property who finds someone committing a
criminal offence in regards to that property
This applies to security guards, bouncers, store dicks

Searches
No warrant to search a person under lawful arrest
For protection and for securing evidence
A place — must have a warrant
What is the offence
What is to be found
Where is it likely to be found
How it pertains to the crime
 The warrant will specify times for the search
Note: May take related items if they are in plain view
Also: Telewarrants are becoming popular to save administrative costs

Procedures after Arrest

May only photograph and fingerprints those arrested for an indictable offence
Cannot force an individual into a line-up

Pre-Trial Release
Promise to Appear — arrested person has now been identified, no longer likely to
recommit and has a permanent residence
Recognizance — promise to appear in court; if they break the promise they have to
pay money to the court
Bail — put up the house momma I want out

Reverse Onus on Bail

When the accused was already on bail and committed again
When the accused is not a Canadian citizen
Has a previous record of fail to appear
Serious drug charges

Habeas Corpus
Crown must give reasons for keeping ‘an innocent person’ in jail waiting trial

Need to Know
Rule of Law
Law and Justice
- Interrelationship
- What is fair and proper, what is discriminatory

Is inequality injustice? Consider street

Magna Carta; Common Law
Substantive Law
Laws must …..
BNA Act 1867
Federal System
Conflict of Power; residual powers; federal vs provincial
Ultra Vires
Constitution Act 1982; equalization, clear legislation of natural resources, formula for new
amendments, charter of rights and freedoms
Right vs. Freedom
Canadian Bill of Rights 1960; Dief the Chief
Entrenching Rights and Freedoms; put in the constitution so no one can go against it, except
notwithstanding clause (the only time; Quebec)
Jurisdiction
Interveners; people who are allowed to speak after the convention (not before) who are not
directly involved
Rights While Under Arrest; person cannot give evidence against themselves
Defining Crime and Criminal Offences; 4 conditions
- Must be considered wrong by society
- Act causes harm to society
- Must be serious
- Remedy must be handled by criminal justice system
Quasi-criminal; not a criminal record; provincial
Actus Reus; the guilty act
Mens Rea; the guilty mind
Strict Liability; you are response unless you can prove due diligence
Abetting; encouraging
Provincial court; judge alone no jury
No guilty, must be proven beyond a doubt (police arrest on reasonable doubt)
Prima facia/facie? idk; I have enough evidence to prove guilt
Procedure of court
1. Charge read
2. Prosecutor; direct evidence
a. “The crown rests”
3. Defence; their diract (if any)
a. “Not enough has been proven”
4. Summation
a. Both sides restate their case
5. Verdict
a. Guilty or nah
6. Sentence
Priorities of investigating
- Protect injured
- Protect crime scene
Physical Evidence; anything real
Latent prints; can’t see, having to use laser or dusting to see it
Chain of Custody; police must prove where something comes from, who’s touched it, why is
it relevant
To arrest
- I am a police office, you are under arrest for ___________
- You’re not obliged to say anything
- Advise Charter of Rights
- Do you understand what I told you?
Appearance Notice: release someone but has been identified and promise to attend
Summons; blue sheet
Searches; WARRANT
- Exigent circumstances; someone is in danger or getting rid of evidence, police will
have to justify
Recognizance; statement that you’ll show up
Police never find anyone guilty; it’s not their job, any decent cop will never arrest unless
they’re satisfied that the person is guilty
Reverse Onus on Bail; you have to prove you followed
Judicial Independence; in our court system no political power has any right to say anything
to the courts
Passing a statute; usually the cabinet will introduce a bill, goes to the house of commons for
review/put together, send to senate who approves and sends back to house of commons
to vote, house of commons vote in new law (because we voted for them), nobody else
passes law; supreme court cannot pass law, only house of common and legislative branch
can pass laws
Invoke; to put into place
Remedies under human rights; how to resolve stuff, don’t gotta know the whole list
Burden of proof; the Crown has to prove it
Basis of Quebec code is Napoleonic code
Bail process; habeas corpus

Law and Justice

Is inequality injustice? Consider street people.
Our ideas of justice originate from our values, attitudes and beliefs.
Where does this stand when no one’s attitudes are more important than another’s?

Concepts of Justice
Fairness — all cases alike — what do you think?
Discrimination
Impartial
Conforms to Society’s values
Criminal Offences
Levels of Offences
Based on seriousness of the crime — how it will be handled in court and what is the
maximum sentence

Summary Conviction (not a big deal)

Usually a maximum of 6 months in jail — fine levels change
Provincial Court with Judge alone
Accused doesn’t have to be in court — his lawyer must be
Causing a Disturbance section is summary

Indictable Offences (big deal)

Maximums range from 2 years to ‘Life’
Under 5 years can be provincial Court or Supreme Court (Defence selects)
Over 5 years can be Supreme Court with Judge or Judge & Jury

Know that a Private person can prosecute but first must be able to get the charge laid
The limitation for Summary Conviction is 6 months, but first appearance, not completion, is
all that is require
AND YES YOU HAVE A CRIMINAL RECORD FOR SUMMARY CONVICTIONS!

Hybrid Offences
- Cops will go after them like it’s an indictable
- Prosecutor decides if they’ll proceed with it indictably or summarily; it’s not the cops
job
Can be acted upon Summarily or by indictment
The police act upon all hybrid cases as being indictable until the court decides
The book suggests that the court acts humanely in deciding but in reality its about money

Offences Against the Person

Homicide - causes the death of another human being
Culpable — legally responsible
Non-Culpable — cannot be legally responsible
Unforeseen accident or justified by law

1rst Degree Murder — 4 Situations

Planned and deliberate; both must be proved, can be difficult to prove
Hires another person to commit murder; easy to prove
Murders someone responsible for public peace (police); doesn’t matter if it was planned
and/or deliberate
While committing another serious offence (robbery)

2nd Degree
When it is so hard to prove planned and deliberate

Infanticide — rarely used

Must be natural mother — infant less than 1 — mental disturbance caused by not recovering
from giving birth

Manslaughter
Killing was not intentional — I only meant to scare him and the gun went off!
Provocation can lessen the charge from 1st degree to manslaughter — he called me
a #$@&^ and I just lost it this time

Criminal Negligence Causing Death

This is categorized in the CCC differently because there is no intention of going after
another person

Assault
Intentionally applying force directly or indirectly without consent
Attempting or threatening to apple force — ‘saber rattling’
Begging while openly wearing a weapon

3 Levels of Severity
Level 1
Hybrid Offence — from elbowing someone into the lockers to punching them in the face

Level 2 (Hybrid)
Assault with a weapon or causing bodily harm
1 punch in the face will get you level 1 … numerous gets you level 2

Level 3 (Indictable)
Aggravated — wounding, maiming endangering life

Sexual Assault
Rape is not a legal term any more
3 levels - basically the same as Assault

Level 1
An unwelcome pat on the buttocks is sexual assault

Level 2
Assault accompanied with threats of violence or violence

Level 3
Aggravated - again wounding, maiming etc
Consent cannot be used as an excuse when:
The victim says ‘No’ by words or conduct
The accused is intoxicated and can’t understand ‘No’
The accused ignored to take reasonable steps

A one-night fling is a dangerous thing

No means no (Yashiro! White!!!)

Motor Vehicle Offences

Most are under provincial legislation but some are too serious

Dangerous Operation of a Motor Vehicle

Deliberately driving beyond reasonable operation
Driver was not prudent!
3 levels of sentencing depending on injury

Failure to Stop at Scene (Hit and Run)

Both Provincial and Federal (more serious)
Federal when injury or loss of life

Impaired Driving
Police officer needs reasonable and probable grounds before demanding a
breathalyzer (for CCC offence)
Severity & re-occurence will affect sentencing

Offences Against Property

Theft — simply put
Deprive temporarily or permanently
When it cannot be restored in the condition at the time it was taken
Term ‘Colour of Right’ — honest belief in ownership

Robbery
Simply theft with violence or threat of violence

Breaking & Entering

Includes breaking out of after hiding inside
Also includes entering an opened door that you know you have no permission to enter
Must be for the purpose of committing an indictable crime

Defences for the Accused

Defences

Alibi

The accused should be providing an alibi as soon as possible on becoming the suspect or
the accused

Any accused that has a friend alibi for them in court and never beforehand, outs the friend in
a bad light.

However, many organized crime units use their friends as alibis and the crown has a difficult
time breaking them because they have no respect for the court or the law.

Self-defence

You are allowed to defend yourself, but you are only allowed to use ‘that force which is
necessary’. This depends on each case.

You are not allowed to carry a weapon in your possession for self-defence. This is
possession of a dangerous weapon. You cannot have a loaded gun at your bedside just in
case.

See Sections 35 & 35 of the code

How do you feel about a spouse who after numerous beatings shoots their partner while
sleeping?

Legal Duty

As I discussed previously, I smoked dope once while trying to buy because it was the only
way to get the accused.

With attitudes about marijuana today, I likely would have lost the case — the infringement
of the law was not serious enough to merit me breaking the law

Again, only reasonable force can be used when physically restraining another person

A teacher can be considered acting as a parent when taking action against a child
I am notorious for ‘shmucking’
This is a technical assault but it would never result in a charge
Excusable Conduct

Provocation is never a complete defence which allows a person to be found not guilty. It is a
mitigating circumstance.
The child that is bullied and brings a knife to school will be charged accordingly, not
patted on the back for standing up for themselves
Provocation must be an immediate reaction!
You hit me — I hit you and kill you — oops
You hit me — next week I strike and kill — jail time
Necessity or duress
Bank managers have been known to have their families put in danger, so they have
been found not guilty of theft.

Morgentaler was originally found guilty of murder because his abortions were not
situations of imminent peril.

You cannot sexually assault or murder a person and then claim duress — doesn’t work

Honest Mistake
I went to the gas station — filled up — washed my windows — drove off
I did not follow my usual procedure and I forgot to pay
Luckily, I remembered as I drove down the firsts street
I went back immediately and paid
The clerk stated that he didn’t know immediately because he was busy — phew!

Mental Disorder
In my early years, Mr. Robinson could have used this defence as Homosexuality was
considered a mental disorder.

Mental disorder is a complete defence but might land a person in an institution with no way
out. One Flew Over the Cuckoo’s Nest’

Mental disorder is complete — disease of the mind

Unfit to stand trial — means on account of a mental disorder, the accused cannot stand trial
because they cannot understand, do not understand the consequences or unable to
communicate with counsel

Mental Fitness to Stand Trial

A person found unfit to stand trial may be held in custody for up to two year periods and
beyond.
Evidence of the crime cannot be used against the accused who was forced into
assessment, but the evidence of being fit or not
Can be used — duh

Mental Fitness to Stand Trial

Crown does not bring up claim — must prove actus areas and mens rea
First — Defence wants to bring it up
Prior to Swain, a person could be found not guilty on account of insanity
But this was too easy for the accused

Swain changed it to: not criminally responsible

We are now stuck with the problem of allowing seriously violent offenders that are
considered mentally diseased being released from custody because holding them is in
violation of their charter rights

Read R. v, Swain (1991)

Not Criminally Responsible
The Review Boards now in place are responsible for assessing those found not criminally
responsible and whether they should be held in institutions

The boards must consider:

- Need to protect society
- Mental condition of the accused
- Reintegration of accused back into society
Mental state at time of hearing is what is considered
Treatment may not be considered a condition of release!

Intoxication
Everybody’s favourite!
At issue is general and specific intent: there was the intent to strike back, but not to
kill!
Intoxication is not a defence against impaired driving
Review case R. v, Daviault (1994)
What did you get out of this case?
http://scc.luxum.umontreal.ca/en/1994/1994rcs3-63.html
The criminal code now clearly argues that voluntary intoxication is not a defence against
general intent, which was not the result of this case!

Automatism
Sleep walking, convulsions, acting under a concussion, psychological stress
Unconscious, involuntary behaviour
Accused must prove the state, not crown
Consent
A challenge to a fight may stop you from being found guilty of assault, but you both may be
found guilty of causing a disturbance by fighting.

What happened to Todd Bertuzzi — he was charged with assault but as a rule, athletes give
consent by playing the game.

Entrapment
There is now Entrapment in Canadian Law, thanks to the RCMP
Wearing a wig and asking for drugs in not entrapment
Threatening a person with injury if they don’t supply is

See R. v. Mack 1989 - p.140 (old text)

Mistake of Fact
Ignorance of the law is not an excuse
Ignorance of fact can be if:
- Mistake is genuine
- No provision in law that ignorance of fact is not a defence
- NSF cheques used to be criminal offences — no longer
- Using counterfeit bills mistakenly not criminal

Double Jeopardy
This is covered by Section 11 of the charter and the accused cannot be tried for the same
offence

This is not the same as an appeal

Nor is it the same as crown finding new evidence as a result of perjury by any
defence
Witness

Sentencing and the Correctional System

Recidivism - recidivism rate in Canada is over 70%
- 70% of the criminals will continue going in and out of jail for the rest of their lives
- On an endless loop
- Learn more bad things in jail and it builds up on their record

As a society we are becoming disillusioned with the Rehabilitation Philosophy and moving
towards the Restorative Justice Mode … maybe.

We are going to look at the : goals, processes, people, and institutions involved in
sentencing
Goals of Sentenicing
Goals Sound Simple:
1) Protection of Public — people are threatened when a violent criminal is on the loose
2) Retribution — society (not the individual) wants the perp to pay
3) Deterrence — most people do not commit crimes because they are afraid of the
punishment — low level morality
a) General Deterrence: see someone else get punished for a crime so they don’t
do it (stop other people from doing it because they’ve seen what happened)
b) Specific Deterrence: put someone in jail because it should be enough to stop
them
4) Rehabilitation — the poor soul has lost his way!
5) Restitution — sure have a broke crook pay a fine!
6) Denunciation — you have broken society’s code of conduct! Shame … shame

Sentencing Procedures
Summary (minor) offences — sentencing may be immediate
Indictable — delayed sentencing

Perspectives to consider
Offender — pre-sentence report — done by probation officer — thorough
background
Psychiatric assessment — by qualified
Victim — impact statement — harm or loss — nothing directed at the guilty!
Society — prosecutor can provide previous record
Sentence Hearing — get in all appropriate material
- Background, severity, offender’s situation, etc.

Types of Tradition Sentences

Discharge
Absolute — guilty but no penalty (1 year record gone!)
Conditional — terms attached — misbehave and you get sentenced (3 yrs record
gone!)

Probation
‘Prove’ you will not offend again
Typical conditions — No go areas, no association, no booze

Suspended Sentence
6 months but nothing if you behave!

Intermittent Sentence
Jail is too full — come on Friday nights only!

Conditional Sentence
Served in community with specific requirements
Drug and alcohol treatment — community service
Electronic Monitoring
Yes — it’s hard to beat

Restitution
Go sell drugs so you can pay off your victim! Community Service

Binding-Over, Deportation & Fines

Binding-over — peace bond
Deportation — very hard to enforce
Fines — only works with those that have money

Suspension of Privileges
Withhold driver’s license, cannot trade on stocks

Plea Bargaining
Behind closed doors — will not involve victims, police not advised

Incarceration
Last option — some mandatory minimum sentences where judge cannot be too
creative

Length of Imprisonment
Dangerous Offender — judge gives an indeterminate sentence allowing the person to be
held longer
Concurrent Sentence — at same time — used most often
Consecutive Sentence — one after another

It is not enough to just tell people to think let alone ‘think critically.’ There are different steps
and methods that exist to help people do this effectively. One method is called the General
Inquiry method, which allows you to act on the decisions you have made after examining
an issue!

This course deals with primary source material and extensive research: we can choose to
deny it outright, accept it on faith alone or attempt to understand.
There are many widely held definitions of critical thinking. Here are features that are
common to most:
★ Distinguishing fact from opinion
★ Assessing the reliability of a source
★ Distinguishing relevant from irrelevant information
★ Detecting bias
★ Identifying unstated assumption

There are 5 general steps to the General Inquiry/Critical Thinking process:

★ Define a problem
★ Judge information related to the problem
★ Draw your conclusions and develop possible solutions
★ Devise and implement a Plan of Action!
★ Review your results, reflect, and begin again

5 ‘tools’ that a Critical Thinker should possess include:

★ Relevant background knowledge
★ Understanding appropriate criteria for judgement - grounds for decision making
★ Critical thinking vocabulary
★ Relevant thinking strategies: use different tactics to attack a problem
★ Be a careful critical thinker - conscientious Habits of Mind

THE RULE OF LAW

1. SOCIETY NEEDS LAWS

2. LAWS CANNOT BE MADE ARBITRARILY

3. NO ONE IS ABOVE THE LAW

The laws of society should reflect the values + beliefs of the people
As society changes, so do laws — not as fast as we may want them to!
In the 1st unit, we’ll look at the structure of the Canadian Legal System and some of the
historical influences.
We’ll look at:
- The connection between law, morality, and justice
- The influence of British law
We’ll discuss:
- Constitutional law, common law, and statute law
 - Clarify the complexities of the Canadian legal system
- Division of power in Canada
- Different branches of government
- Procedure for enacting statute law

Law in Our lives

Law is part of everyday life — work, school, drive, rent, buy, talk
Laws reflect the society of any period

Why study law?

- To ensure that it continues to work
- We need to be able to make informed thoughtful change
- Study of law = study of people
- You can make money
- Don’t act, nothing changes

Rules vs. Laws

- Rules aren’t enforced by courts
- You can opt out of rules — not laws

What is Law?
- They regulate our social, political, and economical activities
- Laws restrict who can live where, what you can buy, who gets your money when you
die
- Different from place to place
- Some say: whoever is in power makes the laws
- Others accept law as a social necessity
- Sounds good!
- A civilized people’s attempt to regulate life on the bases of reason + fairness
- They reflect values as well as practical concerns

1st laws based on common sense and practicality?

Great Laws of Manu (India) 1280 - 880 BC
Code of Li k’vei (China) 350 BC
Theft, robbery, prison & arrest
Clearly laws from different countries and cultures had much in common

The Code of Hammurabi (1792 - 1750)

King of Babylon
 300 codified laws (Codification - the action or process of arranging laws according to
a system or plan)
Attributed his laws to the gods
They depicted a patriarchal society where wealthy were given more protection
This wouldn’t happen today!
Retribution was the order of punishment: punishment inflicted on someone as vengeance for
a wrong / criminal act
However there was Restitution (restoration of something lost or stolen to its proper owner)
and the strong were expected to help the weak … and people should not lie.

Mosaic Law
500 years after Hamm
Punish a deliberate action as opposed to just an action
Also punish the guilty party — not the daughter!

Greek Law
Use of jury
Citizens (using the term loosely) were meant to be active

Roman Law
Laws must be recorded
Justice is not left to judges alone
Public protection of crimes
Victim compensation
Protected the plebs from abuse
Created lawyers!
Justice was becoming too complicated

Justinian Code
Beginning of Civil and Criminal law
Codification of Roman Law

Napoleonic Code
Tried to make law available to common man
Civil law: still in affect in Quebec

Natural Law ; 4 claims consistently made

1. There are immutable principles of law which exist as part of the natural realm; they
define what is right, just and good for man; they are the standard he must adhere to
in his actions

2. These unchangeable principles are discoverable by all men through the right use of
reason
 3. All men (in all places and all times) are subject to these principles

4. Laws created by the state only have jurisdiction primacy when they are in
accordance with the principles of law in nature

The Basic Goods

1. Life
2. Reproduction
3. Educate one’s offspring
4. Seek God
5. Live in society
6. Avoid offense
7. Shun ignorance

Natural law v. Rule of Law

Instinct and reason combine to create the natural law

Influences on Canadian Law

What’s British in Courts
the Queen, black robes, gowns, hierarchy
Trial by Ordeal
guilt based on outcome of torture
God became judge
Trial by Oath Helping
there was a time when the Bible had influence
Trial by Combat
God will help the innocent: leads to today’s adversarial system … my lawyer’s
better than yours
The Feudal System
Divine Right put some above others
Each Nobleman could judge as he saw fit
there was a need for Common Law

Common Law
another must know!
We still have assize courts and circuit judges
creation of case law (must know!)
common to all
Each time a new case was dealt with, it became precedent (must know)
one judge would stand by this decision (stare decisis)
Legal Reforms
Who was making law … was there Divine Right …. time for the Magna Carta!
Charter that gives right to the citizens, right to justice and fair trial

Magna Carta (meaning “The Great Charter”) 1215:

- Dealt with mediaeval rights and customs
- Powerful symbol of liberty around the world
- Still part of the law today
- Everyone had a right to fair trial
- No man should be judged by anyone but their equals
- Only applied to free men; most people were ruled over by their landowners
- Reissued 3 times
- 1216, 1217, 1225

Rule of Law
The Magna Carta was the start of no one being above the law
Habeas Corpus
Anyone arrested or detained without explanation is entitled to a court appearance
This results in our Bail System and is now entrenched in our Charter of Rights and
freedoms
Aboriginal Law
We thought they had no laws or social organization … gee it just wasn’t codified.
Aboriginal Law is making a comeback in society and we’ll deal with it later.
Reflecting on Our Roots
Even in our secular society of today, we must draw from beyond (morality) if we are
ever to have just laws

Magna Carta (The Great Charter)

Let us return to the days of Robin Hood and King John. That would be in 1215 and
Robin Hood had nothing to do with it, he was just hiding in the woods.
Anyways, King John was having a grand time spending all the money he could by
raising taxes constantly. Well, the Nobles and Businessmen had had enough and met with
King John at Runnymede (outside of London) and they forced him to sign this Charter that
took away the concept of Divine Right.
It was the beginning of the Rule of Law (important) AND it began Habeas Corpus
where you couldn’t just hide people in dungeons: they had to have their day in court. So it
also began the concept of our Bail process today.

Classifying the Law

The purpose of this chapter is to discuss the sources of law in Canada and to clarify how the
law is organized into categories

Sources of Law in Canada

The Pyramid: Constitutional, Statute, Common
Common Law
Previous legal decisions
Now - Case Law - previous case rulings
Remember stare decisis relying on others' decisions
However: new precedents can be set because of technology, cultural change or
even interpretation
Note: judges are required to follow the rulings of superior court judges, unless they
can distinguish their case (stare decisis)
Also: provincial court judges must follow the decisions of supreme court judges of
other jurisdictions!

Statute Law
passed by elected representatives
Acts become law when completing formal procedure
Each political jurisdiction is entitled to make law over matters that they have
authority

Federal Government
Canada Wide - Know your list: ie: criminal law, employment, banking, defense
justice.gc.ca - you want laws - you got ‘em

Provincial Government
hospitals, police forces (watch out!), natural resources
bclaws.ca got what you want

Local Governments
Created by the provinces and territories to provide services that are best managed
under local control — responsible for services within a city or region
local public transportation, police and fire protection, water and sewage
services, recreation services

Aboriginal Governments
Under federal jurisdiction, bands are like municipalities but agreements made with
provincial governments can give Aboriginal people much more power

See:
http://nisgaalisims.ca/files/nlg/The_Constitution_of_the_Nisga_a_Nation_October_1998_..
pdf

Constitutional Law
 - Determines the structure of the federal government and divides law-making power
- Limits the powers of government
- Sets out certain basic laws, principles and standards that other laws must adhere to
- Courts will interpret laws to ensure that they are consistent with the constitution
- Courts may strike down laws if found in violation
- this can also be considered law making by the courts!

Monarch

Governor
General

Supreme Court

Prime Minister
& Executive Branch
Cabinet

Senate House of
Commons

The People

Categories of Law
Legal Disputes never fit neatly into one package! But let’s try.

International Law
Independent nations and their relations to others
set by custom as there is no one overruling body
Treaties, agreements
extradition and trade agreements
defence treaties
 Who owns the moon and outer space?
Note: there is no international police force that’s why many countries hate America!

Domestic Law
Substantive and Procedural
For our country alone! You have no protection outside of Canada … don’t go smoking
dope in Singapore and then cry about a 10 year jail sentence!
Substantive Law
defines the rights, duties and obligations of citizens and governments
ownership of property, legal contracts, driving offences
Note: Substantive Law is from all jurisdictions
If your actions do not fit a codified offence, you didn’t break a law
Procedural Law
the method of enforcement
allows for all people to be treated fairly
Public Law
Substantive Law breaks down further
Regulates relationship between government and citizen — when you commit
criminal offence, you break a public law, not a private law
however, you can go against the person privately for damages
Administrative Law
Refers to government boards and tribunals; regulates government decision making
Labour Relations Board
Criminal Law
cause harm to others and is such a serious nature that it is upsetting to all of society
you acted against the Crown, so the police can investigate and the Crown can
prosecute

Private Law
Private Law = Civil law — one against another (or group)
Tort Law
the category of civil law that holds people accountable for harm caused to another
person whether or not harm was intended; can be an organization or an individual
person
Safeway didn’t put up the ‘Slippery when Wet’ sign!
It wasn’t my fault
Mr. McC thinks ICBC staff incompentent — they agreed!

Contract Law
Civil law branch that sets out laws between individuals and/or companies (exchange
of promises/agreements made between them are enforced by the law)
You promised to teach me, but I’m still stupid!
What do you mean it now costs $18,000?
Family Law
Branch of civil law that deals with the branches of family life; marriage, divorce,
children
Wills and Estates
Division and distribution after a person dies; very important when there is no will, it’s
easier when there is one
Property Law
Focus on where property lines end and who they belong to
There is no record of your accepted offer
Employment Law
Deals with relationship between employers and employees

The Law

International Domestic
Law Law

Substantive Procedural
Law Law

Public Law Private Law

Constitutio Administrat Crimi To Contra Fami Wills Proper Employm

nal Law ive Law nal rt ct Law ly & ty ent Law
Law La Law Estat Law
w es

Not all rules are laws, but all laws are rules
Government and Statute Law
Laws Must: (Mr. McC says this is going to be on the test :/)
1. Meet legal challenges
2. Meet approval of most citizens
3. Be enforceable
4. Balance competing interests
We will learn how the powers for making law are allocated and the roles different agencies,
and us, play in making laws

Canada’s Constitution
Canada was initially created out of fear — fear that the USA would take over through their
belief in ‘Manifest Destiny’.

Originally there was desire to stay under British rule

Britain took no strong stand and it was Britain that passed the Act making Canada a country

BNA Act - 1867

Still a major part of our constitution — defines how Canada should be governed

Canada could not enter into International trade agreements (dang Brits still had control!)

A Federal System
Should it be American style — no too much power to state — British unitary style — no
Canada too large and diverse
Originally — exclusive control over its own jurisdiction, but central
government could overrule in cases of best interest
Monarch was head of state and there was the principle of Rule of Law

Division of Powers
Sect. 91 - federal powers - currency - postal service
Sect. 92 - provincial powers - education - religious rights
Provinces delegated powers to municipalities; municipalities only have power
because the provinces want them to, it could be taken away if they wished
Provincial governments determine what form municipalities take on, their
powers, and their responsibilities
Aboriginal rights are only recently being considered

Conflict of Power
That which wasn’t made clear, goes to federal government - residual powers
Airports - telecommunications
Sect. 91 states that the federal government can take authority for the purpose of Peace,
Order, and Good Government
Pierre Trudeau took over the Oil Fields of Alberta so that power was reasonable for
all. This is still a sore spot in Alta.

Doctrine of Ultra Vires

Not within my power to do something; beyond my power
Beyond the powers - BC can’t unilaterally hand over federal land to First Nations because
it’s not within their power
See Attorney General of Alta v. Attorney General of Canada - pg.56

Patriating the Constitution

Canada became more and more independent from 1867 to WWII;
Mackenzie King hated the idea that Great Britain could tell Canada when to go to war
or had to be involved in international treaties
Yet, Canada could not amend its own constitution - it was a British Act!

Problems with the BNA Act

Canada could have become independent earlier than 1982, but the provinces and
federal government couldn’t agree on how to do it
Since it was such a problem to get the British to act, the Canadian governments
entered into shared cost agreements
Example: federal money for health, but provinces must follow federal guidelines

Constitution Act 1982

The Supreme Court of Canada told Trudeau that the federal government could patriate the
Constitution, but it would go against the unwritten principles

I haven’t got a clue what those would be … How could the Courts know

Trudeau pulled a fast one while Levesque was sleeping and the provinces agreed

BNA Act remained the same but there were 4 new elements:
● - equalization of services across Canada
○ Unemployment insurance, pensions, same payment across Canada, etc.
○ Created have and have not provinces
● - clearer legislation on who controlled natural resources
○ Provinces control their natural resources
● - formula for making new amendments
● - Charter of Rights and Freedoms
○ Highest law in the land
○ Protects us from the government

Principle of Equalization
Richer provinces would carry costs to make health education and social services
equal across Canada (not same amount but costs shared)

Natural Resources
Provinces own and control - as long as they are nice; otherwise it was own and
control

Amending Formula
 ⅔ of provinces (7 provinces) and 50% of population
Issues that only affect one province do not need approval from others (but still cannot go
against the Charter of Rights and Freedoms)

Charter of Rights and Freedoms

This, as part of Constitution, made it the highest law
You can’t go against Charter of Rights and Freedoms
- Protects us from the government

Right - This is a legal, moral, or social claim that people are entitled to, primarily from their
government. For example: a fair trial.
Freedom - It is the right to live your life free of the government - but - there are limitations
on freedom.
Ex. hate literature

Recognizing Rights and Freedom

Exactly what rights should people have
Should some rights be absolute
Should everyone be entitled to the same rights
How can people ensure that governments do not restrict their rights and freedoms?
- Vote
- Petition our member of parliament; push issues
- Form protests

Historical Documents
The 2 great leading actions for humanity were the Declaration of Independence
(USA - 1776) and the Declaration of the Rights of Man (France 1789)
Inalienable rights - guaranteed entitlements that cannot be transferred from one person to
another
Universal Declaration of Human Rights - UN 1948.
Presents the fundamental freedoms of thought, opinion, expression, conscience,
religion, and peaceful assembly and association. (Not followed by most of the world)

Evolution of Rights in Canada

Give your head a shake and consider the Human Rights Events in Canadian History -
it is an embarrassing legay!
In groups of 2-3, pick one of the following and do a quick research to present to the
class.
Komagata Maru
1900 Dominion Elections Act
1940 Communists Outlawed Japanese Internment
1942 Doukobhors can’t buy land (enemy aliens)
 British Properties can’t sell to non-whites (1951)
Indigenous People denied right to vote until 1960

Komagata Maru
The Komagata Maru incident involved the Japanese steamship Komagata Maru, on which a
group of people from British India attempted to immigrate to Canada in April 1914, but most
were denied entry and forced to return to Calcutta. There, the Indian Imperial Police
attempted to arrest the group leaders.
1900 Dominion Elections Act
The Dominion Elections Act was a bill passed by the House of Commons of Canada in 1920,
under Robert Borden's Unionist government. The Act allowed women to run for the
Parliament of Canada. However, women from minorities, for example, Aboriginals and
Asians, were not granted these rights.

1940 Communists Outlawed Japanese Internment

Japanese were seen as spies, war measures act detained more than 90% of Japanese
They were stripped of their properties and sold them in order to pay for their internment

Canadian Bill of Rights

After WWII, like most of the rest of the world, Canada realized that there needed to
be a Bill of Human Rights to protect people.
Not until 1960, though, did the first Bill of Right show under Dief the Chief.
This sounded good for it had all the basics (life, liberty, personal security, freedom of
religion, and speech, right to counsel etc). But it was only a Bill, only applied to federal
matters, did not have precedence over other statutes, and could be changed any time in
the House of Commons.

Entrenching Rights and Freedoms

By entrenching Rights in the Constitution, people are protected no matter what
government is in power and they can override all other Statutes, protecting the dignity of
humans

Then of course there had to be a catch: the constitution could not be all powerful! We never
want too much power in any one place.

The Notwithstanding Clause

 Section 33 of the Charter grants governments to pass laws that are exempt from
Section 2 and Sections 7-15 of the Charter for a period of up to 5 years: then a new
Constitution reform must be written (declared)
The first major time this clause was used was to protect language in Quebec: their
law to have signs in French only were ultra vires and shot down, but Quebec came back
and passed a new law invoking the clause.

Alberta tried to control the amount of money people sued for, but this didn’t work!

The opposing positions of the clause are;

Opponents of the clause state that legislators can invoke the clause for political
gain and want the Courts to have control, while those in favour claim that it should
be the legislators, those voted in that should be able to control (at least they can
be voted out).

Jurisdiction, Enforcement and Guarantee

Jurisdiction - Charter applies to all levels of government and all government agencies and
Crown Corporations

Enforcement - The Supreme Court has control: the role of the courts has changed
dramatically - instead of just interpreting law they are now upholding the rights of citizens.

When considering whether a person's rights have been violated the court will consider
1) Was the right infringed by a government or its agencies?
2) Is the right in question covered under the charter?
3) Is there violation within a reasonable limit?

The courts can strike down legislation using Sect. 52 or may leave time to have the
legislation amended
In criminal cases they can: exclude evidence, order a new trial or dismiss the case

Interveners
‘Friends of the courts’ - interested groups that may have input a case on the basis of
arguing for or against the use of the Charter
Defense lawyers argued that the accused must be able to face their accuser, but
women have been able to protect young victims behind a screen.
M.A.D.D. - Mothers Against Drunk Drivers
Guarantee
Section 1 - gives reasonable limits to rights and freedoms
 See the Oakes case to understand the 4 criteria for limiting rights
and freedoms

R. v. Oakes
All 4 criteria must be met

The Fundamental Freedoms

Everyone has the following fundamental freedoms:
a) Freedom of conscience and religion;
b) Freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication;
c) Freedom of peaceful assembly; and
d) Freedom of association.

Freedom of Conscience and Religion

The classic case was the Lord’s Day act (1985): stores were no longer compelled to
be closed on Sunday
This has now blossomed to employees having the right to have their time off for
observance of their religious holidays
The issues of intent and extent are significant regarding religious freedom: a child’s
life is paramount to a parent’s religion

Freedom of Peaceful Assembly and Association

The term peaceful is vague, but under the Criminal Code a riot must consist of at
least 12 people and cause fear to persons nearby.

Associations are limited in a couple ways

Certain groups cannot create unions (RCMP) and criminals are often banned
from associating with their buddies while on probation or parole.

Democratic and Mobility Rights

The right to vote has restrictions - age, mental capacity, location and registration

There has been an ongoing battle as to whether prisoners could vote - before NO!
Then after Charter Yes if less than 2 years, Now Yes period - they do not vote for the area in
which the prison is but a complicated process as to their location prior to incarceration
 Supreme Court judges can now vote too - only the chief electoral officer and
returning officer are not allowed to vote

Mobility Rights
This is an ongoing problem where Canada brings in migrant workers to work in
certain areas and then these workers want to go to warmer or more hospitable climes.

Games are played with such acts as welfare to control the movement of people
(can’t collect for 3 months, so don’t come … if you have been a resident for 6 months, you’ll
qualify for this training program).

Also, Canada will not send people to a place where capital punishment is likely.

Legal and Equality Rights

Sections 7 - 11 deal with criminal issues
If Crown cannot prove the justification for a law, the law can be struck down
The old Section 17 of the CCC claimed that duress could only be used as a defense if
the threat was immediate (R. v. Ruvic 2001). The old vagrancy laws were dropped before the
Charter came in because it was known that these laws would fail any test.

Life, Liberty and the Security of the Person

Since a fetus is not a person, it is not afforded protection to life!

Sue Rodriguez lost her case because Section 241 of the CCC protected life of those most
vulnerable (1980).
- Wanted to be killed because there was no cure for the disease she had (amyotrophic
lateral sclerosis - ALS - aka Lou Gehrig’s disease)
- Once you hit a certain point you can’t have any quality life
- Wanted to be put down because she couldn’t have any quality life

The Supreme Court states that there must be a fair balance between the individual and
society. In Cunningham v. Canada (1993), it was +determined that Cunningham, a parolee
could be brought in for a hearing after being released on mandatory supervision.

Unreasonable Search and Seizure

See R. v. Parker (2000) - legal cultivation and use of marijuana.

Arbitrary Detention and Imprisonment

Random stops by the police for the purpose of protecting society (seat belt checks,
road blocks) can be justified under Section 1 of the code.
Rights While Under Arrest
You are under arrest because … You can contact a lawyer.
- Must make it clear why they are under arrest, ensure that they understand

Rights When Charged with Criminal Offence

Trial must take place in a reasonable time! What does this say about Picton!
A person cannot give evidence against themselves. What about having the accused
state under oath what he was doing and justify his lame excuse?
- Cannot be forced to talk, don’t have to provide evidence against themselves

Cruel and Unusual Treatment

They wouldn’t let me have my teddy bear!
What is an excessive penalty? Difference between non violent and violent crime.
- Every sentence deserves its own understanding of the case
- We don’t want to put nonviolent people in jail

Rights of Witness in Court

What a witness says in court cannot be used against him for another trial … however,
it may help investigators to get other information.
There is a right to interpreters, other than in the two official languages.

Equality Rights
Everyone is equal, but some are more equal than others
A person with a disadvantaged background (Native) will be considered to be less
responsible for their criminal actions and therefore their penalty will be less!

Language and General Rights

Sections 16 - 22 of Charter
Thank you courts for sufficient numbers - that sure is specific!
Nunavit can use their traditional languages in all government actions

Aboriginal Rights
Sections 25 is there to protect culture, customs, traditions - this does not give new rights,
only protects those that they already had

Multicultural Rights
Don’t go stepping on my religion! I want to shop on Sunday because I’m in the Mosque on
Saturday

Charting the Record

Over 80 laws have been overturned, but even more have not come into effect.
The Notwithstanding clause can be misused by governments, but there are elections!
The courts are now an uncertain sea of value judgements. Secularism is now controlling our
lives - not our religion - which is more important? If there is no secularism, there could be an
Afghanistan here - look how powerful the religious right in the states has gone.

Secular view - not religious; the actual world view

Human Rights
- We say we live in a fair society but we don’t
Remember: a right is a legal, moral and social claim through entitlement
Put Human Rights to memory!
- You don’t have to put them to memory because they all make sense
Discuss how far do rights go looking at the examples - 2nd paragraph
The Charter protects people from government action, but Human Rights Codes are needed
to protect people from other people or organizations

Human Rights Legislation

Discrimination is often based on stereotyping
You know you are a red-neck when … you’ve spent more money on your pick-up
truck than you have on education
Stereotyping leads to prejudice…
All teenagers watch porno sites

The result of stereotyping and prejudice is discrimination, or discrimination involves putting

prejudice into action

There is little that the government can do about peoples’ attitudes, but they can create
legislation to correct and prevent injustices

Canadian Human Rights Act

All persons should not be hindered in or prevented from doing anything based on:
Race
Colour
National or Ethnic Origin
Religion
Age
Sex or gender
Marital status, family status
Physical or mental disability
Pardoned criminal conviction
Sexual orientation

The Act also deals with hate messages and pay equity
Sect. 67: Does not affect any provision of the Indian Act
However, this is not blanket protection as in Rose Desjarlais v. Piapot Band

Provincial Human Rights Codes

Subject to the Charter
Charter says … girls can play on boys’ teams
Is forced retirement even an issue anymore?
Discuss
Review: http://www.bchrt.bc.ca/
And report on a case to the class (1 class research and prep)

Warnings:
On baby stroller; “Caution: remove baby before folding stroller.”
On the label of a bottle of drain cleaner: “If you do not understand, or cannot read, all
directions, cautions and warnings, do not use this product.”

Administering Human Rights Legislation

Most cases are dealt with by commissions

Remedies
- Try to put complainant in the position where they would have been if no
discrimination
- Force a letter of apology
- Require stoppage of practice
- Payment for mental anguish
- Give back job
- Require organizations to create opportunities to make up for problems
- Force training of staff
- This usually works as holidays for government employees!
Grounds of Discrimination
Since women were not able to pass the physical fitness test for the VPD, the
standards were lowered
This had to be changed!

Exceptions under law

Higher insurance fees for young drivers
 Claim rates justify action
Bona fide occupational requirement
- you don’t have to do 15 pull-ups to be a good cop!
Affirmative Action! Don’t get me started!

Constructive and Direct Discrimination

Constructive - inadvertently exclude certain groups - not tall enough
Direct - refusal on basis of belonging to a certain group (female — firefighters)
Duty to Accommodate
Allow religious days off
but employer must not endure undue hardship … up to the employer to prove
Harassment in the Workplace
grounds found in Human Rights Code
sex, religion, colour, etc.
Constant use of the saying “That’s what she said,” qualifies for sexual harassment
Poisoned Environment
Real or perceived inequality
‘You’re too pretty to be promoted’

In partners: report on an incident of bullying in this school … don’t tell me there aren’t any …
and tell the class why we have to treat people this way and how it would feel to try and stay
in school … How much crap do we have to put up with?

Accommodation and Facilities

Young single males need not apply
Welfare moms not wanted
Why are there never enough woman’s cans at arenas?
- Because women have maternity leaves (will be away from work for longer periods of
time compared to men)
Meeting Special Needs
Do you think that guy should be suing Richmond for not putting in talking signs?
Should suffering from an addiction to drugs or alcohol be considered a disability
protected by Human Rights?
3 factors to be considered when accommodating Special Needs: costs, outside sources of
funding, and health and safety
Why do we need Braille keypads on drive-through ATMs?
Why are women allowed separate fitness gyms when men are not?

Read p. 134 & 135: Considering that we don’t feel fear of terrorism in our daily life, with your
partner, write a brief 500 word editorial comment regarding security at out airports. Think in
terms of the whole body scan and the fact that apparent Muslim women were allowed to
board a plane without ever showing their face.
Definitions
Adversarial System: mono e mono; one person (advocate) against another; “I’m gonna
prove you wrong!”; that’s our court system
Case Law / Common Law: based on previous laws
Habeas Corpus: “I have the body”; you can’t keep people hidden in the dungeon, they have
to have their day in court
Magna Carta: 1215AD; beginning of the Rule of Law and it is the beginning of Habeas
Corpus
Rule of Precedent: when there’s a new ruling, it becomes precedent
Stare Decisis: Standing by their decision (a judge)
Restitution: to pay back; to make up for it; to make amends
Retribution: you’re gonna pay for what you did ; eye for an eye
All laws: (the chart that we did) (not on the test)
Jurisdiction: Charter applies to all levels of government and all government agencies and
Crown Corporations
Amending Formula: ⅔ of provinces (7 out of 10) must agree and make up 50% of population
Patriate: to bring home
Intra vires: within power
Ultra vires: outside of power
Rights: a legal, moral, or social claim that people are entitled to, primarily from their
government (ex. A fair trial)
Freedoms: it is the right to live your life free of the government - but - there are limitations
on freedom; government can’t interfere (ex. Hate literature)
Residual Powers: new things that come up for/in the Constitution, the internet; who’s gonna
make laws for the internet; it usually goes to the federal government
Entrench: put within the Constitution Act therefore nothing can change it (can’t be changed)
other than by the amending formula
Inalienable Rights: guaranteed entitlements that cannot be transferred from one person to
another
Notwithstanding: government can go against Charter of Rights and Freedom if they can
prove it’s necessary for society (have to go every 5 years)
Interveners: “friends of the court” : interested groups that may have input on a case on the
basis of arguing for or against the use of the Charter

Town in Northern BC is suffering from a lot of breaking and entering. The mayor says that
we have to have a meeting and figure out what to do. The only people who show up are the
mayor and an RCMP officer. They try to figure out what to do. We know that it’s kids that are
doing this because only kids do breaking and entering so we give them a curfew. But not
the football team because they’re good kids and so they can stay outside later.
- Football players are apparently above the law
- Curfew against kids (?)
 - Ruining society (breaking and entering)

Difference between a right and a freedom

The Nature of Crime

Defining Crime and Criminal Offences

Crime makes for great TV, Movies, Books and News, but in reality all it does is hurt.
Crime is an ac t or omission of an act that is prohibited and punishable by federal statute.
4 conditions must exist for behaviour to be considered criminal
a) must be considered wrong by society
b) act causes harm to society in general or to those who need protection
c) the harm must be serious
d) the remedy must be handled by the criminal justice system

The perception of what is crime is not static.

Criminal Law
Crime hurts individuals and society — theft — raise prices
Victimless crimes — prostitution — hurt societal values
Purpose of Criminal Code (+ others) then is to :
protect people and property
maintain order
preserve standards of public decency
We all have a responsibility (not fear) to act appropriately
In addition to not committing crimes, we have an opportunity to participate in crime
prevention
Neighbourhood Watch, Block Parent
Crime Stoppers ticks me off!
(Block Watch, Crime Stoppers, M.A.D.D.)

The Criminal Code is changed to…

- To catch up to the morality of the country + better reflect changing societal values
- To catch up with advances in technology which create the need for new laws
- Outdated laws are revisited or repealed
Provincial Jurisdiction
Quasi-criminal / regulatory — less serious (considered)
Wildlife Act — Motor Vehicle — Liquor — Consumer Protection
Many of these laws now carry prison sentences and differ according to the needs of the
province
Provinces pass laws using the same process as the Federal Government - no Senate
through and the Supreme Court of BC does not review Provincial Law
The Elements of a Crime
Actus Reus: the guilty act
Action - causes harm to person(s) or property
ie: assault - purposefully striking someone
- If the strike was not on purpose - no crime
Note: assault is striking another without consent, so “Let’s take it outside” is not
assault until someone goes overboard.
The book (p. 143) implies that defining assault is easy and clear … NO!
What was the intent and extent of the action?
Also: the Actus Reus can also be an omission - didn’t feed the child or a ‘state of being’ - in
possession of stolen property

Actus Reus must be voluntary: not coerced by another, nor done while being out of control
Note: being intoxicated or stoned may be a mitigating circumstance, but not usually
a
complete defence

Mens Rea
The guilty mind — meant to do something wrong or reckless regarding the
circumstances — willfully act without regard to the consequences
General Intent
act without an ulterior motive or purpose — damage property due to drunken rage
Specific Intent
Break your neighbours fence in a drunken rage because …
Getting back at someone; an offense may be committed intentionally or recklessly
Intent: desire or purpose to achieve a particular consequence
Motive — reason for doing something; rob you to get money for my drug habit; motive does
not have to be proven to be found guilty - the simple intent of robbing you and obtaining
money is good enough
Knowledge — knowing that the bill you passed was counterfeit is good enough to prove
mens rea

Criminal Negligence
- Failed to take precautions that a prudent person would be expected to take and
shows wanton or reckless regard for others
- Dropping boulders off the overpass on the highway

Recklessness
 - Consciously taking unjustifiable risks that a reasonable person would not take

Willful Blindness
- Ignoring the possible outcome or consequences; choosing not to see something —
so what if I smash into the window and break it!
- Allowing friends to steal from your store
- Buying something you know is stolen

Strict and Absolute Liability

Regulatory Offences (speeding, seat belts) do not require mens rea and broken into
strict liability and absolute liability offences
Strict liability — We took all safety precautions known
Absolute liability — You were following too close
These matters do not have mens rea, so Canadian law has said there can be no jail time

Liability - you’ve done something wrong, you are responsible for an action
absolute liability - you can’t defend this; you can’t make up excuses
strict liability - the only way you can say that I wasn’t responsible is that I tried everything I
could for it to not happen (due diligence)

Involvement in Crime
Are we part of the solution or are we part of the problem?

The Perpetrator (Perp)

Directly involved in the crime — must be identified at the scene
the driver of the getaway car, the person ‘standing six’ are examples of being
co-perpetrators as they are at the scene

Aiding
Not directly involved in the crime itself but just as responsible
the student that gives another’s locker combination, knowing that that
student will steal the ipod.

Abetting
Encouraging — cheering or even watching a fight should make you guilty of the
offence itself, but don’t expect the law to uphold its own principles!

Counselling
Telling people how or when to commit a criminal offence
‘Glad’ student teaching others how to empty their parents account

Accessory After the Fact

Helping a person escape
 Parent telling the police that they had bought that ipod but didn’t have the receipt
any more

Party to a Common Intention

You got together with your buddies, now whatever they do, you are just as
responsible
If two of you are standing watch while a third breaks into a locker and one of the
lookouts beats another kid who happens to be in the wrong place at the wrong time,
all three of you are responsible for the assault.
You cannot say “I didn’t plan on anyone getting hurt”

Incomplete Crimes
contrary to the Actus Reus stating a crime must have been completed
1) Attempt — okay let’s deal with shoplifting
2) Conspiracy — watch who you hire to do your killing for you!
it was a great plan but you hired the wrong person!

Conspiracy - planning together; make plans to commit an offense with someone;

conspiracy can include counselling
Due diligence - i tried everything i could for it to not happen but it happened anyway - a
good defense
Knowledge - doing something even though you know is wrong - the awareness of a fact or
circumstance
Parties to an offense - co-perpetrator; person that’s also involved
Attempt - having an intent to commit an offence, does or omits to do anything for the
purpose of carrying out the intention
Act of omission - not doing something

Video:
Criminal offense: any offence enacted under Parliament’s criminal law power
- Includes every offence in the Criminal Code
- Offences in the Controlled Drugs and Substances Act
- Other crimes enacted under the federal power
- Customs → offense, Copyright Act
 - Colloquial definition: Any offence where a person faces the possibility of jail
- media, criminal law??? Aimimal Law AR???
- Any offence that requires you to go to court and defend yourself
The two types of offences are treated differently under the law
Regulatory Offences
- Federal offences enacted under other powers — regulatory offences
- Enacted in order to ensure compliance
- Ordinary people are more likely to be charged with a regulatory offence than
a criminal offence; you can still face jail but it’s not technically a criminal
offence

What’s the Difference?

1. Penalties - imprisonment available, but usually much lower. Often no imprisonment
possibility. (MOST SERIOUS)
2. Criminal Record - no “moral opprobrium” for regulatory offending
3. Procedure - procedures less significant for non-criminal offending
4. Mental elements - less required for non-crimes

Procedure:
s. 11 → offence
(d) BAD
(e) Bail

Bottom Line
- Much of what we will discuss addresses ALL offences (criminal and regulatory)
- Some of what we discuss only for crimes; other parts only for regulatory offending
- Always important

The Criminal Court System

 Supreme Court of Canada

Federal Court of Appeal Provincial Superior Court

(Appeal Division) (Appeal Division)

Federal Court of Provincial Superior Court

Canada

The Provincial Courts (vary in names)

Criminal Youth Family Small Traffic

Court Justice Court Claims Court

Note: Courts were originally enclosures (like a courtyard) where judges sat on one side of a
bar and all others on the other side
The expression ‘called to the bar’ comes from being allowed to practice law after
passing all training and being deemed qualified.

The Criminal Court Structure

Provincial legislatures are responsible for the organizing, administering and
maintaining of the Criminal Court System. Federal government appoints Superior Court
Judges.

The Provincial Court System

Provincial Courts have trial while Superior Courts have both Trial and Appeal
divisions (need to know)

Criminal Division
Provincial Court - Judge Alone (no jury)
1) Summary Offences and Hybrid offences where the Crown is proceeding summarily
2) Indictable offences where looking for less than 2 years in jail (5 now in some
jurisdictions)
3) Provincial violations (Wildlife Act)
4) Preliminary hearings - is there a good enough case to go to Supreme Court

Superior Court - Judge alone or Judge and Jury

1) Serious Criminal Offences (side-bar, aren’t all!)
 2) Defense’s Choice for judge and jury except in the most serious cases (murder)
3) Appeals Division - hears Appeals from both Provincial and Superior Court

Federal Court (Superior Court)

often uses the same administration office as provincial courts also does civil cases
involving Federal Legislation
(Unemployment Board)

Supreme Court of Canada

1 Chief Justice and 8 Justices appointed
3 must come from Quebec then usually 3 Ontario, 2 West and 1 maritime

Other Courts
Tax Court and Court Martial — both under Federal Jurisdiction Native Bands in BC
(Nisga) will be allowed to set up their own courts (Provincial Court level)
Sentencing Circles are being used more in Native cases

The Participants
Guilt Must be Proven Beyond a Reasonable Doubt
Crown must prove the case — not defence disprove it
The evidence, testimony and roles played are critical to keep integrity

The Judge
Admissibility of evidence
Controls events (order) in courtroom
Interprets the law
Jury Trial — judge is ‘trier of law’ jury is ‘trier of fact’ (verdict)
Justice of the Peace can issue Arrest Warrants and Search Warrants
- Strong legal background

The Defence
Accused in the Defendant
A person may represent themselves — dumb move
Duty Counsel is available in the 1st instance but then a lawyer will need to be hired
Duty Counsel will help with bail
Help accused get a proper lawyer

The Prosecution (Crown)

Must bring forward credible evidence of a crime
Prepare a prima - facia case
- Absolutely essential; all the prime facts that prove a person guilty
- Without it, prosecutors can’t continue; prosecutors will not take up cases unless
they’re satisfied that the they will be able to have a proper case
Court Personnel
Court Clerk & Reporter - now 1 role instead of 2 except in complex cases with
numerous documents and exhibits
Reporter has a taped record of the proceedings — to have it printed costs probably
about $12 a page now.

Sheriff — provincial employee — courtroom security, accused management, calling

witnesses and controls jury actions
BC’s Sheriffs have numerous other duties and can be a fulfilling, but low-paid,
occupation

The Witness
Cops usually go first and in many cases are the only witnesses
Witnesses are subpoenaed to ensure attendance in court
Only expert witnesses can give opinion evidence
- Medical education
- Often psychologists
Can make oath on the Bible of Affirmation
- Have to make an oath, it does not have to be by the Bible

The Jury
Taken from the voters list - 12 people judge the guilt or innocence of a person

The Role of the Jury

It is a societal responsibility and an awesome responsibility
Qualifications — 18 years older, citizen of the Province
Exemptions for hardship must apply and must be valid

Jury Selection — this ain’t Runaway Jury — but there are 6 steps
1 - 3, random selection, face accused, possible objection faced
4. Challenge for cause - exclude a juror for; already making up mind, physically unable to
perform duty, criminal record
5. Peremptory challenge — exclude without reason — reading non-verbal cues - number of
challenges changes with severity of sentence
6. Juror’s oath

Note: You cannot bring up past behaviour until after the Accused is proven/found guilty
unless the Accused comes up to the stand and acknowledges their past behaviour

The Criminal Trial Process

Adversarial System - one on one
Presumed Innocent - doesn’t matter if you saw it on Youtube
Burden of Proof - Crown must prove case
The vast majority of cases are not jury trial

Opening - Judge has Crown and Defence introduce themselves

Charge is read by Court Clerk - Defence pleads
Note: of guilty plea, crown must still enter the essential elements of the crime into the
record

Crown opens Statement

Outlines case and how the matter will be proven
Defence usually accepts this without rebuttal other than to state the innocence of the
accused

Examination of Witnesses
Crown will have its witnesses waiting outside the courtroom and not listening to evidence of
others
- Defence usually will call for an exclusion of witnesses
Witnesses evidence is called direct examination and when the defence gets to ask
questions it is called cross examination
After Crown has presented her entire case Crown will state “the Crown rests”

Defence’s turn
First — try to make a motion of dismissal — court did not prove jurisdiction — police did not
state in which municipality the offence occurred — etc
Defence does its summary as Crown has before
Accused may chose to give evidence but is never forced to

The Rules of Evidence

When is testimony admissible? Objections
1. Leading Question: “You were on duty July 12th, correct?”
Should be: “Where were you on July 12th?”
2. Hearsay: “Tom told me that Bob said”
Police would phrase: “After speaking to Tom, I had reason to believe that Bob
may have said something that was pertinent to the case ….
3. Opinion: I believe Bob was able to understand that what he did was wrong (only a
psychiatrist could state this)
4. Immaterial or Irrelevant: Bob’s always been a crook!
5. Non-responsive: Q. Was Bob with you? A. Yes, Bob is handsome.

Types of Evidence
All evidence must be ‘material’: important and relevant
Direct Evidence: testimony given by a witness to prove an alleged fact
Eyewitness: was at the scene and saw first hand
Physical: The gun
Statement: I asked the following questions and received the following answers
Expert: In my humble opinion, Mr. McC is brain-dead … I base this on the following …

Investigation and Arrest (Chapter 8)

Levels of Policing
Federal — RCMP (1873 - NWMP) Responsible for:
Customs & Excise - Drug Enforcement - Economic Crime - Immigration -
Proceeds of Crime - Criminal Intelligence (CPIC - Canadian Police Information
Centre) - International Liaison and Protective Services
In all, over 280 Federal laws 7 Regulations
There are nearly as many RCMP in Vancouver as there are VPD!
They also provide Provincial (Alta) and Municipal contracts (North Van) — cost basis
Provincial Police
(only in) Ontario and Quebec
Firearms — small rural areas
Municipal Police — West Van
Preserve peace - prevent crime - assist victims - apprehend criminals - lay charges -
execute warrants - bylaws (yetch!)
Aboriginal Police
Growing — same authority as Municipal police and trained with them

Starting a Police Investigation

Arrive at Scene of Crime
Protect injured — protect the crime scene — investigate
Protect and Preserve Scene
No one is to contaminate the scene (no looky-loo cops)
Thorough search — seize — ensure admissibility
All police have a Notebook (log) handy to take necessary notes

Officers’ Roles
Patrol Officer usually first at scene and responsible for life and protection of scene
and evidence
Identification Officer (Scenes) preserves evidence for court
Investigation Squad — will take control of all matters for court
(These roles change amongst departments)

Identifying and Collecting Physical Evidence

Physical Evidence — anything real pertaining to the case — gun — print — DNA
 Forensic Science will examine and analyze the physical evidence
Tools — have unique markings and can be compared to damage at the scene —
striation
Impressions — tire treds — running shoes — help me in a murder investigation
Class characteristics — general attributes — tred design
Individual characteristics — specific wear pattern on tire
Fingerprints — “but everybody in my hometown has the same fingerprints”
(statement under oath)

Visible Prints
Can be observed by naked eye
Latent prints
Caused by perspiration or oil on hands
Dusting — on metal or non-absorbent surfaces
Iodine-fuming — on absorbent surfaces (paper — cloth)
Laser beams can now be used to ‘raise’ prints
Note: prints are hard to obtain because they are often smudged
Body Elements and DNA
Processes are getting better for all types of body element exchanges but it still isn’t
any CSI
DNA testing has a 1 year lag time in Canada right now!

Procedure for Labelling Evidence

Chain of Custody — order in which items of evidence have been handled during a
case; proving that an item has been properly handled through an unbroken chain of
custody is required for it to be legally considered as evidence in court

It was in my control until I placed it in the Property Room and I picked it up in the
same form for court — my initials and number are still on the tags showing that it has
not been tampered with
Report must be clear and specific
Date and time
Where found — by who
Who handled it
Where has it been since seized
Case #

[ VIDEO: Physical Evidences (Definition, Types & Nature)(easy notes) ]

What is Physical Evidence?
Physical evidence is any object that can establish that a crime has been committed or can
link a crime and its victim or perpetrator.
Anything can be physical evidence which can connect crime scene to criminal.
“In simple words, to count physical evidences cannot be possible.”
 1. Body Material
Body fluids or materials found at a crime scene might include:
In case of poison, main parts of the body such as liver, gallbladder, brain, kidney, small
intestine, pancreas, uterus, heart and lungs should be analyzed.
Blood, semen, saliva, and vomit in dry or liquid state.
Hair., nails, fingerprints, etc.
2. Botanical matter
3. Chemical substance
Explosive: any object that has a residue of an explosive is useful, Alcohol, Paint, Drugs
4. Weapons
Firearms: pistol, revolver, gun, bullet, cover
Other arms: knives, axes, arrow, sword, hammer, scissors, stone, etc.
5. Disputed Documents
Examinations and comparisons conducted by document examiners can be diverse and may
involve the following:
❖ Typewriters, photocopies, printers, fax machines.
❖ Handwriting (cursive / printing) and signatures.
❖ Alterations, additions, erasures, obliterations.
❖ Indentation detection and/or decipherment.
❖ Cheque writers, rubber stamps, markers.
❖ Physical matching.
❖ Ink, pencil, paper.
6. (skipped the one before this) Tool marks
Tool mark as any impression, cut, gouge, or abrasion caused by a tool coming into contact
with another object.
They consist of small, commonly microscopic, indentations, ridges, and irregularities
present on the tool itself. For example, the tip of a screwdriver is never perfectly flat, but
shows small ridges along its edge.
7. Soil
Sand, clay, slit, peat, loam, chalk
Stick with tiers, mudguards, shoes, clothes, etc.

Information about modus operandi

Criminals, specially habitual criminals, have the same type of criminal manner. Same
criminal pattern of behavior helps to catch criminals.
Verification of statement
Statement of person (victim, witness, criminal) can be tested. AFter examination and
reconstruction of physical evidence.

[ END OF VIDEO ]

Arrest and Detention

Looking for more evidence once ‘reasonable and probable grounds’ have been met; must
have evidence to prove someone is guilty beyond a reasonable doubt
- Protects police officer from being sued
- Reasonable and probable grounds is far below “without a doubt”

Questioning the Accused

Police officers will usually asked questions of an accused (the book says ‘required’)
Charter Warning is without saying — Res Gestae statements excepted; exceptions
- Book says it’s required, but it’s not

Interrogation Techniques
Never do what the book says! “Tell me what happened”
You need to gain the accused’s trust which often means finding a common ground from
which to converse
There is no rule to investigation: it is what works without abusing the accused’s rights

Arrest & Detention Procedures

Arrest — legally depriving someone of liberty
Detention — legally depriving liberty for the purpose of investigation
To arrest:
- Identify self as police officer
- Advise accused of being under arrest
- Inform accused of charge (does not have to be absolute)
- Touch (take legal custody) the accused
- Advise of Charter Rights

To detain: do not need to take legal custody

Reasonable people accept this at this point and it does not have to lead to arrest

Reasonable Grounds
The police officer’s best friend
Once a person is arrested the police cannot simply leave him in jail!
Appearance Notice: before they have been charged of a crime
This is where a person has committed a fairly serious crime, but not likely to commit
again immediately, has been identified and has been promised to attend court.
Appearance Notices can be given at the scene (shoplifters) or after a more
thorough investigation at the station

If someone is not yet charged with a crime, they might be given an appearance notice.
If someone is charged with a crime, they might be given a summons.

Summons - once they’ve been charged

Person will likely appear in court and does not need to be fingerprinted and photographed
ahead of time; blue slip of appear which has the date of the court

Arrest with Warrant

Police have arrested someone for a serious offence and they want them to appear in court
before being released.
Police complete their investigation and then swear out a warrant in front of a Justice of the
Peace (or Judge) and execute the warrant on the accused

Arrest Warrants are also where people have not appeared for court or have been identified
well after the incident

Arrest Without Warrant (Reasonable Grounds)

Has committed an indictable offence
Is about to commit an indictable offence
In the commission of committing an indictable offence
Some whom they believe has a warrant out for their arrest

Citizen’s Arrest
Finds committing an indictable (not hybrid) offence
Has committed an offence and being freshly pursued by someone with authority to arrest
The owner or person in lawful possession of property who finds someone committing a
criminal offence in regards to that property
This applies to security guards, bouncers, store dicks

Searches
No warrant to search a person under lawful arrest
For protection and for securing evidence
A place — must have a warrant
What is the offence
What is to be found
Where is it likely to be found
How it pertains to the crime
The warrant will specify times for the search
Note: May take related items if they are in plain view
Also: Telewarrants are becoming popular to save administrative costs

Procedures after Arrest

May only photograph and fingerprints those arrested for an indictable offence
Cannot force an individual into a line-up

Pre-Trial Release
 Promise to Appear — arrested person has now been identified, no longer likely to
recommit and has a permanent residence
Recognizance — promise to appear in court; if they break the promise they have to
pay money to the court
Bail — put up the house momma I want out

Reverse Onus on Bail

When the accused was already on bail and committed again
When the accused is not a Canadian citizen
Has a previous record of fail to appear
Serious drug charges

Habeas Corpus
Crown must give reasons for keeping ‘an innocent person’ in jail waiting trial

Need to Know
Rule of Law
Law and Justice
- Interrelationship
- What is fair and proper, what is discriminatory

Is inequality injustice? Consider street

Magna Carta; Common Law
Substantive Law
Laws must …..
BNA Act 1867
Federal System
Conflict of Power; residual powers; federal vs provincial
Ultra Vires
Constitution Act 1982; equalization, clear legislation of natural resources, formula for new
amendments, charter of rights and freedoms
Right vs. Freedom
Canadian Bill of Rights 1960; Dief the Chief
Entrenching Rights and Freedoms; put in the constitution so no one can go against it, except
notwithstanding clause (the only time; Quebec)
Jurisdiction
Interveners; people who are allowed to speak after the convention (not before) who are not
directly involved
Rights While Under Arrest; person cannot give evidence against themselves
Defining Crime and Criminal Offences; 4 conditions
- Must be considered wrong by society
- Act causes harm to society
- Must be serious
 - Remedy must be handled by criminal justice system
Quasi-criminal; not a criminal record; provincial
Actus Reus; the guilty act
Mens Rea; the guilty mind
Strict Liability; you are response unless you can prove due diligence
Abetting; encouraging
Provincial court; judge alone no jury
No guilty, must be proven beyond a doubt (police arrest on reasonable doubt)
Prima facia/facie? idk; I have enough evidence to prove guilt
Procedure of court
1. Charge read
2. Prosecutor; direct evidence
a. “The crown rests”
3. Defence; their diract (if any)
a. “Not enough has been proven”
4. Summation
a. Both sides restate their case
5. Verdict
a. Guilty or nah
6. Sentence
Priorities of investigating
- Protect injured
- Protect crime scene
Physical Evidence; anything real
Latent prints; can’t see, having to use laser or dusting to see it
Chain of Custody; police must prove where something comes from, who’s touched it, why is
it relevant
To arrest
- I am a police office, you are under arrest for ___________
- You’re not obliged to say anything
- Advise Charter of Rights
- Do you understand what I told you?
Appearance Notice: release someone but has been identified and promise to attend
Summons; blue sheet
Searches; WARRANT
- Exigent circumstances; someone is in danger or getting rid of evidence, police will
have to justify
Recognizance; statement that you’ll show up
Police never find anyone guilty; it’s not their job, any decent cop will never arrest unless
they’re satisfied that the person is guilty
Reverse Onus on Bail; you have to prove you followed
Judicial Independence; in our court system no political power has any right to say anything
to the courts
Passing a statute; usually the cabinet will introduce a bill, goes to the house of commons for
review/put together, send to senate who approves and sends back to house of commons
to vote, house of commons vote in new law (because we voted for them), nobody else
passes law; supreme court cannot pass law, only house of common and legislative branch
can pass laws
Invoke; to put into place
Remedies under human rights; how to resolve stuff, don’t gotta know the whole list
Burden of proof; the Crown has to prove it
Basis of Quebec code is Napoleonic code
Bail process; habeas corpus

Law and Justice

Is inequality injustice? Consider street people.
Our ideas of justice originate from our values, attitudes and beliefs.
Where does this stand when no one’s attitudes are more important than another’s?

Concepts of Justice
Fairness — all cases alike — what do you think?
Discrimination
Impartial
Conforms to Society’s values
Criminal Offences
Levels of Offences
Based on seriousness of the crime — how it will be handled in court and what is the
maximum sentence

Summary Conviction (not a big deal)

Usually a maximum of 6 months in jail — fine levels change
Provincial Court with Judge alone
Accused doesn’t have to be in court — his lawyer must be
Causing a Disturbance section is summary

Indictable Offences (big deal)

Maximums range from 2 years to ‘Life’
Under 5 years can be provincial Court or Supreme Court (Defence selects)
Over 5 years can be Supreme Court with Judge or Judge & Jury

Know that a Private person can prosecute but first must be able to get the charge laid
The limitation for Summary Conviction is 6 months, but first appearance, not completion, is
all that is require
AND YES YOU HAVE A CRIMINAL RECORD FOR SUMMARY CONVICTIONS!

Hybrid Offences
- Cops will go after them like it’s an indictable
- Prosecutor decides if they’ll proceed with it indictably or summarily; it’s not the cops
job
Can be acted upon Summarily or by indictment
The police act upon all hybrid cases as being indictable until the court decides
The book suggests that the court acts humanely in deciding but in reality its about money

Offences Against the Person

Homicide - causes the death of another human being
Culpable — legally responsible
Non-Culpable — cannot be legally responsible
Unforeseen accident or justified by law

1rst Degree Murder — 4 Situations

Planned and deliberate; both must be proved, can be difficult to prove
Hires another person to commit murder; easy to prove
Murders someone responsible for public peace (police); doesn’t matter if it was planned
and/or deliberate
While committing another serious offence (robbery)

2nd Degree
When it is so hard to prove planned and deliberate

Infanticide — rarely used

Must be natural mother — infant less than 1 — mental disturbance caused by not recovering
from giving birth

Manslaughter
Killing was not intentional — I only meant to scare him and the gun went off!
Provocation can lessen the charge from 1st degree to manslaughter — he called me
a #$@&^ and I just lost it this time

Criminal Negligence Causing Death

This is categorized in the CCC differently because there is no intention of going after
another person

Assault
Intentionally applying force directly or indirectly without consent
Attempting or threatening to apple force — ‘saber rattling’
Begging while openly wearing a weapon

3 Levels of Severity
Level 1
Hybrid Offence — from elbowing someone into the lockers to punching them in the face

Level 2 (Hybrid)
Assault with a weapon or causing bodily harm
1 punch in the face will get you level 1 … numerous gets you level 2

Level 3 (Indictable)
Aggravated — wounding, maiming endangering life

Sexual Assault
Rape is not a legal term any more
3 levels - basically the same as Assault

Level 1
An unwelcome pat on the buttocks is sexual assault

Level 2
Assault accompanied with threats of violence or violence

Level 3
Aggravated - again wounding, maiming etc
Consent cannot be used as an excuse when:
The victim says ‘No’ by words or conduct
The accused is intoxicated and can’t understand ‘No’
The accused ignored to take reasonable steps

A one-night fling is a dangerous thing

No means no (Yashiro! White!!!)

Motor Vehicle Offences

Most are under provincial legislation but some are too serious

Dangerous Operation of a Motor Vehicle

Deliberately driving beyond reasonable operation
Driver was not prudent!
3 levels of sentencing depending on injury

Failure to Stop at Scene (Hit and Run)

Both Provincial and Federal (more serious)
Federal when injury or loss of life

Impaired Driving
Police officer needs reasonable and probable grounds before demanding a
breathalyzer (for CCC offence)
Severity & re-occurence will affect sentencing

Offences Against Property

Theft — simply put
Deprive temporarily or permanently
When it cannot be restored in the condition at the time it was taken
Term ‘Colour of Right’ — honest belief in ownership

Robbery
Simply theft with violence or threat of violence

Breaking & Entering

Includes breaking out of after hiding inside
Also includes entering an opened door that you know you have no permission to enter
Must be for the purpose of committing an indictable crime

Defences for the Accused

Defences

Alibi

The accused should be providing an alibi as soon as possible on becoming the suspect or
the accused

Any accused that has a friend alibi for them in court and never beforehand, outs the friend in
a bad light.

However, many organized crime units use their friends as alibis and the crown has a difficult
time breaking them because they have no respect for the court or the law.

Self-defence

You are allowed to defend yourself, but you are only allowed to use ‘that force which is
necessary’. This depends on each case.

You are not allowed to carry a weapon in your possession for self-defence. This is
possession of a dangerous weapon. You cannot have a loaded gun at your bedside just in
case.

See Sections 35 & 35 of the code

How do you feel about a spouse who after numerous beatings shoots their partner while
sleeping?

Legal Duty

As I discussed previously, I smoked dope once while trying to buy because it was the only
way to get the accused.

With attitudes about marijuana today, I likely would have lost the case — the infringement
of the law was not serious enough to merit me breaking the law

Again, only reasonable force can be used when physically restraining another person

A teacher can be considered acting as a parent when taking action against a child
I am notorious for ‘shmucking’
This is a technical assault but it would never result in a charge
Excusable Conduct

Provocation is never a complete defence which allows a person to be found not guilty. It is a
mitigating circumstance.
The child that is bullied and brings a knife to school will be charged accordingly, not
patted on the back for standing up for themselves
Provocation must be an immediate reaction!
You hit me — I hit you and kill you — oops
You hit me — next week I strike and kill — jail time
Necessity or duress
Bank managers have been known to have their families put in danger, so they have
been found not guilty of theft.

Morgentaler was originally found guilty of murder because his abortions were not
situations of imminent peril.

You cannot sexually assault or murder a person and then claim duress — doesn’t work

Honest Mistake
I went to the gas station — filled up — washed my windows — drove off
I did not follow my usual procedure and I forgot to pay
Luckily, I remembered as I drove down the firsts street
I went back immediately and paid
The clerk stated that he didn’t know immediately because he was busy — phew!

Mental Disorder
In my early years, Mr. Robinson could have used this defence as Homosexuality was
considered a mental disorder.

Mental disorder is a complete defence but might land a person in an institution with no way
out. One Flew Over the Cuckoo’s Nest’

Mental disorder is complete — disease of the mind

Unfit to stand trial — means on account of a mental disorder, the accused cannot stand trial
because they cannot understand, do not understand the consequences or unable to
communicate with counsel

Mental Fitness to Stand Trial

A person found unfit to stand trial may be held in custody for up to two year periods and
beyond.
Evidence of the crime cannot be used against the accused who was forced into
assessment, but the evidence of being fit or not
Can be used — duh

Mental Fitness to Stand Trial

Crown does not bring up claim — must prove actus areas and mens rea
First — Defence wants to bring it up
Prior to Swain, a person could be found not guilty on account of insanity
But this was too easy for the accused

Swain changed it to: not criminally responsible

We are now stuck with the problem of allowing seriously violent offenders that are
considered mentally diseased being released from custody because holding them is in
violation of their charter rights

Read R. v, Swain (1991)

Not Criminally Responsible
The Review Boards now in place are responsible for assessing those found not criminally
responsible and whether they should be held in institutions

The boards must consider:

- Need to protect society
- Mental condition of the accused
- Reintegration of accused back into society
Mental state at time of hearing is what is considered
Treatment may not be considered a condition of release!

Intoxication
Everybody’s favourite!
At issue is general and specific intent: there was the intent to strike back, but not to
kill!
Intoxication is not a defence against impaired driving
Review case R. v, Daviault (1994)
What did you get out of this case?
http://scc.luxum.umontreal.ca/en/1994/1994rcs3-63.html
The criminal code now clearly argues that voluntary intoxication is not a defence against
general intent, which was not the result of this case!

Automatism
Sleep walking, convulsions, acting under a concussion, psychological stress
Unconscious, involuntary behaviour
Accused must prove the state, not crown
Consent
A challenge to a fight may stop you from being found guilty of assault, but you both may be
found guilty of causing a disturbance by fighting.

What happened to Todd Bertuzzi — he was charged with assault but as a rule, athletes give
consent by playing the game.

Entrapment
There is now Entrapment in Canadian Law, thanks to the RCMP
Wearing a wig and asking for drugs in not entrapment
Threatening a person with injury if they don’t supply is

See R. v. Mack 1989 - p.140 (old text)

Mistake of Fact
Ignorance of the law is not an excuse
Ignorance of fact can be if:
- Mistake is genuine
- No provision in law that ignorance of fact is not a defence
- NSF cheques used to be criminal offences — no longer
- Using counterfeit bills mistakenly not criminal

Double Jeopardy
This is covered by Section 11 of the charter and the accused cannot be tried for the same
offence

This is not the same as an appeal

Nor is it the same as crown finding new evidence as a result of perjury by any
defence
Witness

Sentencing and the Correctional System

Recidivism - recidivism rate in Canada is over 70%
- 70% of the criminals will continue going in and out of jail for the rest of their lives
- On an endless loop
- Learn more bad things in jail and it builds up on their record

As a society we are becoming disillusioned with the Rehabilitation Philosophy and moving
towards the Restorative Justice Mode … maybe.

We are going to look at the : goals, processes, people, and institutions involved in
sentencing
Goals of Sentenicing
Goals Sound Simple:
1) Protection of Public — people are threatened when a violent criminal is on the loose
2) Retribution — society (not the individual) wants the perp to pay
3) Deterrence — most people do not commit crimes because they are afraid of the
punishment — low level morality
a) General Deterrence: see someone else get punished for a crime so they don’t
do it (stop other people from doing it because they’ve seen what happened)
b) Specific Deterrence: put someone in jail because it should be enough to stop
them
4) Rehabilitation — the poor soul has lost his way!
5) Restitution — sure have a broke crook pay a fine!
6) Denunciation — you have broken society’s code of conduct! Shame … shame

Sentencing Procedures
Summary (minor) offences — sentencing may be immediate
Indictable — delayed sentencing

Perspectives to consider
Offender — pre-sentence report — done by probation officer — thorough
background
Psychiatric assessment — by qualified
Victim — impact statement — harm or loss — nothing directed at the guilty!
Society — prosecutor can provide previous record
Sentence Hearing — get in all appropriate material
- Background, severity, offender’s situation, etc.

Types of Tradition Sentences

Discharge
Absolute — guilty but no penalty (1 year record gone!)
Conditional — terms attached — misbehave and you get sentenced (3 yrs record
gone!)

Probation
‘Prove’ you will not offend again
Typical conditions — No go areas, no association, no booze

Suspended Sentence
6 months but nothing if you behave!

Intermittent Sentence
Jail is too full — come on Friday nights only!

Conditional Sentence
Served in community with specific requirements
Drug and alcohol treatment — community service
Electronic Monitoring
Yes — it’s hard to beat

Restitution
Go sell drugs so you can pay off your victim! Community Service

Binding-Over, Deportation & Fines

Binding-over — peace bond
Deportation — very hard to enforce
Fines — only works with those that have money

Suspension of Privileges
Withhold driver’s license, cannot trade on stocks

Plea Bargaining
Behind closed doors — will not involve victims, police not advised

Incarceration
Last option — some mandatory minimum sentences where judge cannot be too
creative

Length of Imprisonment
Dangerous Offender — judge gives an indeterminate sentence allowing the person to be
held longer
Concurrent Sentence — at same time — used most often
Consecutive Sentence — one after another