Flashcards
Test 2 - Criminal Law
Cards in this deck (93)
- 1Types of Defenses: Mental Disorderno person is criminally responsible for an act committed or an omission made while suffering from a mental disorder. Mental disorder is defined as a disease of the mind.
- 2Mental Disorder Requirements1. incapable of appreciating or understanding the act or omission
2. incapable of understanding that the act or omission was wrong - 3When can the defense of mental disorder be raised?By the Prosecution
1. the accused has in the opinion of the trial judge already raised a defence that puts mental capacity and intent of the accused in question
2. the accused has been found guilty by the trier of fact (then it has to be decided if the accused will be found NCR) - 4Defences: Intoxication involuntary intoxication, when available to be raisedaccused consumed intoxicants without being aware of it
Available as a defence in general intent and specific intent offences - 5general intenta basic level of mens rea which the crown must prove that the accused had the intent to commit the actus reus of the offence
- 6specific intent2 levels of mens rea
1. accused intentionally committed the actus reus
2. the accused also intended another consequence - 7Defenses: Intoxication self induced intoxicationthe accused voluntarily became intoxicated
- 8when can the defence of self induced intoxication be usedgeneral intent, specific intent, NOT objective mens rea, subjective mens rea
- 9when can self induced intoxication be used in general intent casesonly if
the voluntary intoxication is so severer that the accused is in a state of insanity or automatism and cant form intent
the offence does not involve assault or physical violence as part of the actus reus - 10why cant self induced intoxication be used int he objective mens rea cases as a defencebecause the reasonable man is not drunk
- 11when can self induced intoxication be used in specific intent casesonly partial defence, to est. that the accused was too impaired to form the necessary level of intent
- 12Defences Automatism what kind of automatism is caused by mental disorder, what kind of automotism is not caused by mental disorderMental disorder- mental disorder, insane automatism
Not mental disorder - non insane automatism - 13insane automatismresults in being found NCR, a state similar to mental disorder resulting from extreme self induced intoxication
- 14non insane automatismresults in an acquittal if successful, caused by physical conditions producing impaired consciousness, involuntary intoxication, sleepwalking
accused must prove on a BOP that the state of consciousness was impaired to the degree that their actions were not voluntary - 15automatismbehaviour or actions that a person performs while in a state of impaired consciousness
- 16Defences Provocationthe accused was so inflamed that he could not control his violent impulses and in the throes of passion feeling he lashed out and killed someone
- 17when can provocation be raisedonly for murder
- 18requirements for provocationsudden loss of control
reaction of the accused was immediate
no time to consider the consequences
standard of proof- would a reasonable person have lost control
if successfully raised then charge reduced to manslaughter - 19Defences Duressthe accused must act under threat of imminent bodily harm or death to him, herself, or members of his family
must be a threat of death or physical injury, threat must be proportional to the reaction, no reasonable way to minimize the threat - 20when is the defence of duress availablenot in the more serious offences, not available to persons in a criminal conspiracy
- 21defences necessitythe accused must have been facing a situation of clear and imminent but not necessarily immediate peril or danger
no reasonable avenue of escape from the danger or other legal way to avoid it
potential harm caused by committing the offence must be less than the harm that would have been caused by doing nothing and allowed the dangerous situation to continue - 22major defences self defence - personbelief on the reasonable grounds on the following
force will be used against them or another person or
the threat of force will be used against them or another person - 23what is required to use self defence as a defence |(person)the person claiming self defence must believe that the force or threat will be used
the belief must be reasonable, meaning that others in the same position would act the same way - 24what is the exception to self defence personcannot be used against a police officer unless the person reasonably believes that the officer is acting unlawfully
- 25defence self defence - propertya person believes on reasonable grounds that they are in possession of property and bellieves that another person is entering, or trying to enter the property without being entitled to do so, believe someone is going to damage property
THE ACT HAS TO BE TO
prevent or remove the person from the property
prevent someone from taking damaging or destroying the property
act must be reasonable in the circumstances - 26Defences Consent when can be raisedperson voluntarily engages in a physical fight with another
sports
consent must be freely given
NOT allowed to consent to death
not allowed in certain sexual offences - 27Defences Mistakeaccused honestly believed in the circumstances that do not exist, but that means that they wouldnt have committed the offences if certain circumstances did exist
the circumstances in which the accused believed must not involve the comission of an offence
ex. accused believed that he was selling sugar instead of heroin - 28when can mistake be raisednot applicable to sexual offences committed against young people, ignorance of the law by a person who commits an offence is not an excuse for committing the offence
- 29defences de minimus non curat lexthe law does not concern itself with trivial matters
- 30summary offences (general) + limitation period2 years less a day
max fine of $5000
limitation period - 12 months after offence, unless on consent of prosecutor and defense - 31summary offences ( super)18 month in jail
not within paralegal scope of practice
- limitation period - 12 months , or extended on consent - 32indictableno limitation period, tried in the superior court, ex. murder, kidnapping, arson, cheating at play
- 33hybridaka dual procedure offences or crown option offences, at the discretion of the crown these offences may be prosecuted under either summary conviction procedure or indictable conviction procedure based on the circumstances of the case
limitation period - summary 12 months
offences are assumed to be indictable until the crown decides otherwise - 34whether a search is reasonable test1. the search must be authorized by law
2. the law itself authorizing the search must be reasonable
3. the search must be conducted in a reasonable manner
NOT arbitrary
MUST BE based on reasonable and probable grounds
EVIDENCE sought must be likely to be found where the search authorizes - 35Search Warrantan order issued by a justice under statutory powers authorizing a named person to enter a specified place to search for and seize specified property which will afford evidence of the actual or intended comission of a crime
- 36warrant to search a placepower to search a building, receptacle, or place
must make application (information) under oath to obtain - a police officer
basis for information must be legally obtained
the justice must be satisfied that there are reasonable and probable grounds to believe that there is physical evidence that is relevant to an offence that has been committed or is suspected of having been committed that can be found in the place that is to be searched - 37warrant must includesufficient detail to identify the offence that was committed
a list of items to be seized described sufficiently
clear description of the place or receptacle to be searched (ex. the address of the building) - 38when can an officer seize things that are not in the warrant1. were obtained by the commission of any criminal offence, 2. w ere used in the commission of any criminal offence, or 3. w ill afford or provide evidence in respect of any criminal offence
- 39general warrantto gather information through the use of any device or investigative technique or procedure inclulding video surveillance , issued by provincial court judge NOT a JP
must be reasonable grounds, no bodily interference - 40warrant to search a personex. collecting DNA
only issued by provincial or superior court judge
can only be used for the offence in the warrant
information must be laid first
CONDITIONS
a d esignated offence as defined in section 487.04 13 has been committed; • a b odily substance has been found or obtained at the scene of the offence or within or on the body of or on anything carried by the victim or on a person or thing associated with the offence;
the suspect is a party to the offence; • f orensic analysis of the DNA will provide evidence of whether the bodily substance is that of the suspect; and • i t is in the best interests of the administration of justice to issue the warrant. - 41methods of body search permitted- plucking hair
- buccal swab from mouth
- blood sample - 42DNA samplesmust be destroyed if not from the suspect, the person is acquitted, one year after discharge from prelim inquiry, withdrawal of charges, stay of proceedings
- 43Primary designated offencethe court may order a dna sample collected from an offender convicted of a primary designated offence be added to a dna bank , ex. sexual terrorist, criminal organization crimes
- 44secondary designated offencejudge's discretion whether to add dna to bank for these offences , ex. cannabis act, arson
- 45impression warrantsmust be
reasonable grounds to believe that the impression will provide information concerning the offence
issuing the warrant is in the best interests of the administration if justice - 46blood sample warrants related to impaired drivingreasonable grounds to believe that the person committed the offence of impaired driving within the last 4 hours, the person has been in an accident causing bodily harm to himself and others
or
the doctor believes:
the person as a result of the accident cant consent to the taking of the blood and the persons health wont be compromised by the sample being taken - 47warrantless searchessearches conducted without warrants are prima facie unreasonable, and the crown bears the onus of proof that showing on a bop that the search was reasonable
- 48common law allowances for warrantless searches1. incident of a lawful arrest (ex. the police officer searches the pockets to make sure nothing dangerous)
2. upon informed consent
3. during investigative detention - to conduct an investigative detention (reasonable belief that a crime was committed more than a hunch) or to search a detained person (if police or public safety at risk) - 49types of warrantswarrant to enter a dwelling house
general warrant
other warrants
bodily substances - 50warrant to enter dwelling housemust be based on legally obtained information
must be reasonable and probable grounds to believe physical evidence relevant to the offence exists
must contain sufficient detail - 51general warrantonly available for certain offences
only available if evidence cannot be obtained through other means
judges can place terms and conditions on the search - 52Process warrant to enter a dwelling housePolice officer swears FORM 1
Justice or Judge Issues FORM 7.1 - 53Process General WarrantGeneral Warrant
Police officer swears ITO --> Judge issues General Warrant - 54Process Other warrantsPolice Officer swears ITO --> Drugs, weapons, pornography, hate propaganda
- 55Process - Bodily SubstancesPolice Officer swears Form 5.01 --> Judge issues form 5.02
- 56bodily substances warrantonly available for certain offences
before executing the warrant officer must inform the suspect of why and how a sample will be taken - 57Form 1 =ITO
- 58what accompanies a Form 1draft version of search warrant
affidavit from the informant setting out the believed reasonable grounds for the warrant - 59when should an officer arrest without a warrant?when reasonable grounds exist to believe that a crime is about to be committed or has been committed
- 60Types of Arrest Warrants1. bench warrant
2. arrest warrant
3. feeney warrant
4. canada-wide arrest warrant - 61bench warrantif a person fails to appear at a time and place specified despite proper and proved service
will be arrestes and have to answer to original charge and the charge resulting from failing to obey the summons - 62summonswhen possible the justice SHOULD issue a summons instead of an arrest warrant UNLESS there are reasonable grounds to to believe that it is necessary in the publics interest to issue an arrest warrant
- 63arrest warrant requirementsname the accused and describe them
set out the offence that they are charged with
order that the accused be brought before the court - 64when cant a summons be issued (and an arrest warrant issued instead)cases of murder, conspiracy, piracy, or treason
- 65Feeney warrantwarrant to arrest to allow the police to enter the accuseds dwelling house if there are reasonable grounds to believe that the person will be present there
issued when there is no consent to enter the dwelling place, no exigent circumstances, and when the police are in hot pursuit of a subject - 66canada wide warrantfor serious indictable offences, can only be given by Superior court judges
- 67when can arrests be made without a warrantthere are reasonable grounds to believe that someone has committed or is about to commit an indictable offence, the personn is found committing any offence (indictable or summary)
OR
there are reasonable grounds to believe that there is an executable warrant out for the arrest of the person
SHOULD NOT if possible in less serious offences - 68in less serious cases, when is it okay to arrest without a warrantthe person wont go to court
it is in the best interest of the public to arrest because the arrest will help establish the persons identity
it will preserve evidence, it will prevent another offence from being comitted - 69what are alternative methods of ensuring appearance at court (not arresting)appearance notice
summons - 70appearance notice*requires an information (for the judge to endorse the information so the accused still has to appear at court)
- 71summonsmust be personally served, commanded to appear in court on a specific day and time ,
- 72regular bail situationofficer attends court with accused, justice can adjourn the case for up to 3 days without the consent of the accused, prosecutor has a show cause hearing to determine if bail is required, if no show cause hearing the accused is released unless charged with a s 469 offence
- 73regular bail situations - show cause hearing onus justified grounds for detention (no bail)onus on Crown to show cause beyond a reasonable doubt to detain accused
primary, secondary, tertiary grounds - 74primary groundsdetention necessary to ensure their attendance in court, look at history of the accused (has he failed to show up before?) ties to the community, conditions etc
- 75secondary groundsdetention necessary to protect public safety
look at seriousness of offence, criminal record, etc. - 76tertiary groundsused sparingly, release of accused would cause real harm to the administration of justice , detainment needed to keep public confidence in justice system
- 77regular bail release typesconditions imposed, undertaking, recognizance, prosecutor consents
- 78release with bail reverse onusonus shifts to accused, accused committed indictable offence while on bail for another indictable offence, criminal organization, terrorism , trafficking weapons, failed to appear in court , CDSA offence that has life imprisonment penalty
- 79bail s 469 situationsno automatic entitlement to bail, murder, treason, onus on the accused
- 80bail reviewif 90 days pass from first bail hearing for an indictable offence the accused is entitled to a bail review, if 30 days pass for a summary offence a bail review is necessary ONLY if not a 469 offence
- 81informationa sworn document that commences the prosecution of a criminal offence
- 82indictmenta document signed by a Crown attorney that replaces an information when a criminal matter is before the Superior Court of Justice
- 83information endorsed byJP
- 84most informations are sworn by exceptionpolice officers or prosecutors with the exception of a private information (must to before a provincial court judge)
- 85information jurisdictionan information is a sworn document before a JP that charges an accused with an offence and gives jurisdiction to the ontario court to proceed with the case
- 86indictment jurisdictionan indictment is an unsworn document charging the accused signed by the counsel for the attorney general that gives the superior court jurisdiction. The indictment can be presented if the accused has been ordered to stand trial or if the attorney general or deputy attorney general has personally signed the indictment
- 87who issues an indictmentcounsel for the attorney general (Crown attorney)
- 88who issues an informationa justice of the peace
- 89preferred indictment / what does it do?a special indictment (sometimes referred to as a direct indictment) that is signed by the Attorney General that sends an indictable offence directly to trial without a preliminary inquiry
- 90who is a preferred indictment preferred byattorney general
- 91consecutively numbered paragraphs in an information or indictment that set out the charges against an accused personcounts
- 92count that contains more than a single transaction, one count that charge more than one offenceduplicitous counts
- 93more than one charge on the same information or indictmentmultiple counts
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- Postgraduate Criminal Law Flashcards on Test 2 - Criminal Law , created by Jean Ramsay on 14/03/2020.
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- Jean Ramsay
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