[SFU] Crim 135 Final
Trial Delay
"Key current issue: delay vs s.11(b) and access to justice" Results from: a lack of resources, the impact of the Charter, the adversarial system (tied to a "culture of delay"), self-represented accused persons
Duress & Necessity
Both considered excuses, rather than justifications for committing acts which are technically crimes. Duress is outlined in Code (s.17), but also has common law elements. Necessity is based on common law. In certain circumstances, individuals may feel forced to act in a way that violates the criminal law. Usually acceptable for minor offences, more strict application for serious offences Dudley & Stephens, 1884
Civil law counterparts to criminal offences
(Criminal - Civil) Theft - Conversion Attempted murder - Battery Fraud - Breach of Contract Criminal negligence - Personal Injury Threat - Personal Injury, Assault Mischief - Damage to Property
Infringements of the Code of Conduct: Overview and Punishments
"offences" which might be considered to affect one's integrity as a lawyer. -must be a personally disgraceful or morally reprehensible act. Penalties: Reprimand, fine, suspend for a period of time, disbarment
7. Sentencing
1) Sentence must have a general deterrent effect 2) Sentence must have a specific deterrent effect 3) Protect the public 4) Rehabilitate the accused 5) Acknowledge the criminal act 6) Denounce criminal act Precedent based system Sentencing: case law determines range of duration or extent of sentences Mitigating factors: evidence in favour of a sentence in the lower range Aggravating: evidence in favour of a sentence higher in the range of case law Statutory minimums: minimum possible sentence for a crime
Three key elements to s.34(1) (self defence)
A reasonable perception of reasonable perception of force or a threat of force against a person (subjective perception of the accused, objectively verified); A defensive purpose associated with the accused's actions (accused's subjective state of mind); and The accused's actions must be reasonable in the circumstances in the circumstances (objective assessment).
Administrative Tribunals in BC
Accountants Association of BC BC College of Teachers BC Human Rights Tribunal BC Securities Commission College of Dental Surgeons of BC Consumer Protection BC Employment Standards Branch Information and Privacy Commission Labour Relations Board of BC Law Society of BC Ministry of Attorney General of BC Passenger Transportation Board Real Estate Council of BC Residential Tenancy Arbitrators Simon Fraser University
Actus Reus and Mens Rea
Actus Reus: Guilty Act Mens Rea: Guilty Mind Must coincide at some point (Cooper) to form the necessary elements of a crime
(8.) Appeal
Appeal sentences if they are too low Not common, especially acquittals Can appeal only on grounds of mistake of law Rare to appeal on mistake of fact
Legislated Defences
Basic principle: you can defend yourself against force, as long as the force used is reasonable in all the circumstances. "One cannot use a tank against a chariot"
Intoxication (Defence)
Can function to reduce a charge, if drunkenness was so severe as to make a person essentially an automaton For crimes of basic intent (assault, sexual assault), where some element of interference with bodily integrity of victim, no possibility of partial defence relating to intoxication (s. 33.1) Only really applicable in context of property offences.
Admin Law as Public Law
Deals with the relationship between government and its citizens Two other key areas of public law are Constitutional and Criminal Law. Purpose is to ensure that the activities of government are properly authorized by Parliament or by provincial legislatures, and that laws are implemented and administered in a fair and reasonable manner. Based on the principle that government action, whatever form it takes, must be legal, and that citizens who are affected by unlawful acts of government officials must have effective remedies if the Canadian system of public administration is to be accepted and maintained.
4. Crown must fully disclose its case and all relevant evidence due to the accused's right to know the case against them
Duty of fairness: convictions should not be found through unfair means; evidence should not be suppressed because it's inconvenient
Crown Charge Approval Test:
In order to proceed with a charge, Crown must satisfy two conditions: There must be a substantial likelihood of conviction It must be in the public interest to proceed
Four forms of subjective mens rea
Intention - desires to commit the act Knowledge -knows consequence will likely occur Recklessness -aware of risk, does it anyway Willful Blindness -declines to make an inquiry because s/he does not wish to know the truth
Social Host Liability
Key Question: is a duty of care owed? In hosting a party, there is no duty of care to persons driving on a road. Simply hosting under a BYOB situation does not give rise to a duty of care, according to our legislation. Providing the alcohol (or paying for, or giving tickets for alcohol) raises different issues. Provinces could enact legislation, but thus far host liability is limited to commercial enterprises.
FLA and Family Violence
Key changes to process, duration and enforcement of protection orders (restraining orders or peace bonds). While the order is civil, any breach triggers the criminal law under s. 127. Expire after one year. No notice needs to be given to obtain an order. Children or other guardians can apply The court can make an order on its own initiative. No other proceeding necessary; stand alone provision.
Students v. Universities
Khan v Ottawa Law School Student argues she handed in four booklets during an exam; professor says only received three. Results in a failing grade for student. Student applies tries to appeal grade, but university declines to hear the appeal. Student then applies to court for judicial review of the university's decision. Universities must ensure procedural fairness, which in this case means they should have provided the student with a chance to appeal the grade.
Solicitor/Client Privilege
Lawyers have a duty to maintain strict confidentiality over anything a client divulges during the relationship. Exceptions for: if an identifiable person is in immediate risk of death or serious harm; may alert security if a dangerous situation may emerge at a court
Categories of Criminal Offences
Offences against persons Murder, assault, sexual assault, kidnapping, etc. Offences against property Theft, fraud, forgery, mischief, vandalism. Offences considered evil regardless of lack of "victim": social wrongs. Prostitution, drugs, gambling. Three types of offences: indictable, summary, and hybrid.
Primary components of the Canadian legal system in BC
Policing: investigates crimes and advises charges Crown: approves charges and prosecutes offences Judiciary: manage and try cases Court Services: manage court spaces and administer hearings/cases Corrections: handle custodial/community supervision and other conditions
Remand Custody
Pre-trial detention (not technically imprisonment due to lack of a conviction) for those awaiting trial and either unable to meet bail or successfully argued by Crown that detention is required due to: -The need to secure attendance at trial (flight risk) -Protection of the public -Where necessary to maintain confidence in the administration of justice (very serious charges with possibility of minimum 3 years incarceration if convicted). (Burden typically on Crown unless accused is a known flight risk or very serious charges)
2. Manages, deals with, and notifies victims or witnesses
Provide resources to victims Stay connected, in communication with victims Witness preparation
5. Conduct the trial:
Witness preparation, overcoming barriers to testimony, prosecution strategies
Prerequisites to being a lawyer in Canada
a university degree with a decent GPA, a moderately high score on the LSAT test, a three-year degree from a law school in Canada, completion of a 9 month articling program, successful completion of the Bar exam and, acceptance into the provincial Bar Association.
Types of Contracts
contract of sale, where a person acquires the ownership of property in return for payment of a certain price; the lease and hire of services, where a person offers services to another in return for remuneration; the lease and hire of things, where a person is temporarily granted the enjoyment of property (eg, an apartment), in return for a price (rent); Representation mandate: where a person gives another the power of represent.
Marriage in law
"The lawful union of two persons to the exclusion of all others" A civil contract between two persons. No longer any restrictions related to gender. Steps to getting married: 1. apply for a license with the appropriate Province. 2. Find a person authorized to officiate the ceremony. 3. Bring two witnesses. Must be over 19, or obtain parents' permission if under 19 but over 16. Consanguinity: no marrying your immediate family, nor linear cousins.
List of Non-Exhaustive relevant factors to consider (s.34(2)):
(a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person's role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person's response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
Five main ways to be involved (ss.21 & 23) in a criminal offence
-As a principal: commit the offence -By aiding the principal offender (by either an act or an omission). -By abetting the principal offender (encourage) -Via common intention to carry out an unlawful purpose, can be liable for acts by partners done in carrying out unlawful activity. -Must be something that partners knew or ought to have known was a probably consequence of carrying out offence. -Accessory after the fact.
Defences to Intentional Torts
-Consent (sexual and sports cases) -Self-defence (no liability if acting in defence of self or others unless use of unreasonable force). -Defence of property (no liability if acting in defence of property). -Necessity: forced to do something to avoid a worse situation -Legal authority (police, security, corrections, etc.)
4 fundamental principles of Canadian justice
1) Presumption of innocence: Presume innocence of the accused until guilty plea or crown proves guilt beyond a reasonable doubt; hence why people who allegedly commit heinous crimes are able to walk around freely 2) Burden of proof always on the crown: Accused does not have to do anything to prove their innocence E.g. Cannot use the accused exercising right to silence as evidence of guilt 3) Crown must discharge the burden of proof beyond a reasonable doubt 4) Done in a public, open, courtroom by way of a fair trial; fair trial conducted in an open and accessible manner
7 duties of a prosecutor
1. Charge approval 2. Manages, deals with, and notifies victims or witnesses 3. Bail hearing (judicial interim release) 4. Crown must fully disclose its case and all relevant evidence due to the accused's right to know the case against them 5. Conduct the trial: 6. Conviction 7. Sentencing (8.) Appeal
Divorce
1968 Divorce Act replaced in 1985. Prior to 1968, no special act dealing with divorce. People could not divorce simply because they wanted to; in fact, in many places, women could not divorce their husbands. Must obtain a "parliamentary divorce." 1968 Act allowed a couple divorce if they had been separated for at least three years, and one party was "deserted" by the other there had been adultery, sodomy, bestiality, rape, bigamy or physical/mental cruelty; There was imprisonment, addiction to drugs without prospect of rehabilitation or failure to consummate the marriage. Divorce rates go from 30,000 in 1970 to 70,000 in 1982.
Canadian law schools: programs and statistics
20 common law programs to choose from! Tuition ranges from $9,464 per year (McGill) to $36,720 per year (Toronto). Books and other materials can cost an additional $1,000- $3,000 annually. Some schools have additional charges of up to $11,000 annually as well. Range of average GPA of regular entrants: 3.1-3.9 LSAT range of accepted applicants: 155-166. Most Canadian schools combine your LSAT score and GPA score to give you a rating and accept students based on that rating. For some schools, these are the sole determinants of acceptance.
Grounds for divorce under s.8(2)(b)
Adultery: -must show direct evidence (video, photographs, witness statements); or inferred from facts. Shaw v Shaw (1971) - Opportunities to commit adultery must be coupled with proof that opportunities would be used. individuals found laying together on a bed, in a dark room. Letters declaring love to each other. Some evidence that "the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed." Mental or physical cruelty: -Similar evidentiary problems. -Different standards of what amounts to cruelty. -Conduct must be, "grave and weighty... to render intolerable the continued cohabitation." -As a result of these difficulties in proving grounds, vast majority of divorces now occur under s. 8(2)(a).
Divorce Act, 1985
Allows no-fault divorce after 1 year of separation (under s. 8(2)(a)) or after a trial (no waiting period) under adultery / cruelty (either physical or emotional abuse) (s.8(2)(b)). -Contains provisions for spousal support, child support, and division of property. -Must be read in conjunction with Provincial Acts (Family Law Act in BC)
Actus non facit reum nisi mens sit rea
An act does not make a person guilty unless (the) mind is also guilty. Crown must prove both Actus Reus and Mens Rea to convict someone of a criminal offence.
Contracts
An agreement between two or more persons which creates an obligation to do or not to do a particular thing. -Most often, an "instrument" for "economic exchange".
Mistake of Fact (Defence)
An honest mistake of fact, on an essential element of the offence is in general, a defence to the charge. (QCA in Charbonneau) R. v. Mailhot, 1996 (indecent act, public place) Asked the UCO twice if he, "wanted to see him." Believed the UCO was participating in the act, in which case, it was not done in the "presence of persons other than those engaged in the act." No MR; no intention to engage in a criminal act. Key components: If the accused is honestly mistaken, as to a material element of the AR, then the defence may be used - even if the belief was unreasonable. Except in cases of sexual assault If mistake was due to recklessness or wilful blindness, or induced by intoxication where the crime is of general intent, no defence.
Constraints on Administrative Agencies
As governmental agencies, are subject to constitutional law, including the Charter of Rights and Freedoms. Restricted to the power delegated to them and the specific terms of their establishment. Provincial/Federal government would have established specific terms to be met before the agency can act/hear cases. Where entitlement to a government benefit depends upon the establishment of certain disputed facts or the interpretation of a statute, the applicable legislation will sometimes provide for a hearing before a group of officials (a board or tribunal) who will make the final decision. Common law principles still apply; must act in accordance with natural justice.
Division of matrimonial property
Assumption that both partners have a one half interest in all family assets and debts Note that the Provincial Act applies to married couples and common-law spouses who have resided together for two years. Family assets: property owned by one or both spouses. Excluded property: gifts, inheritances and property owned by one party prior to the relationship . Increase in value will be divided, will be divided, but property itself remains with the original owner. The Family Law Act does not apply to status Aboriginal persons. There is no governing statute dealing with property upon dissolution of marriage for Aboriginal persons.
Vicarious Liability
Based on the rationale that the person who puts a risky enterprise into the community may fairly be responsible when those risks emerge and cause loss or injury to members of the public. Holding an employer liable will encourage such persons to take steps to reduce the risk of harm in the future. Relationship between tortfeasor and principal/employer must be sufficiently close and the wrongful act must be sufficiently connected to the conduct authorized by the employer. To be successful, must show: -employer/principal afforded the opportunity for wrongful act. -Wrongful act furthered the employers' aims. -Wrongful act was related to some issue causing tension with employer. -Extent of power conferred on employee -Vulnerability of potential victims to wrongful use of power by employees. -This is not a question of whether the employer 'approved of the actions of an individual; it is about the relationship that facilitated harm to a victim
Family Law jurisdictions
Both federal and provincial governments have jurisdiction over parts of family law. Federal: Legislation regarding marriage Civil Marriage Act, 2005 Legislation regarding divorce Divorce Act, 1985 Provincial: Custody Support Property Solemnization of marriages/divorces in accordance with federal laws. Family Law Act 2011
Family law Act, 2011
Came into force in March of 2013 Places the safety and best interests of the child first when families are going through separation and divorce. Includes: the history of care of the child; the impact of family violence on the child's safety, security or well-being; the child's views, unless it would be inappropriate to consider them; and any civil or criminal proceedings relevant to the child's safety and well-being. Encourages out of court dispute settlements Agreements, mediation, parenting co-ordination and arbitration. Addressing family violence differently Safety of children primary consideration Protection Orders- where breach = criminal offence. Custody and Access changes Penalties for parents who refuse or alter pre-arranged visits, late payments, failure to attend counselling, etc. New rules for determining legal parentage where assisted reproduction technology.
FLA & Property division
Changes to division of pre-existing assets and inheritances. Increase in value of such assets would be divided equally. Whether an asset is used for a family purpose will not be relevant in deciding if it is family property (unless contract exists). Property division applies to married spouses and to unmarried spouses who have lived in a marriage-like relationship for at least two years. Trend regarding older couples re-marrying and effect on inheritances.
Child Support
Children have a legal right to financial support by both parents until they are 19 years old. Can apply to biological parents, adoptive parents, step-parents and persons acting in the capacity of parents. Can be a lifelong commitment under special circumstances. Federal Child Support Guidelines apply. Factor in income and number of children. The paying parent MUST pay that amount unless s/he can show that it causes undue hardship or there are other special circumstances.
Necessity
Clear & imminent peril (Morgentaler, Perka) "At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make counsel of patience unreasonable." Ask, was there a reasonable legal alternative? Must be some degree of proportionality between the offence committed and situation averted.
Three C's necessary to prove actus reus
Conduct: a voluntary act or omission Circumstances: in a specific context, look to surrounding and material situation Consequences: that results in a particular occurrence (harm)
Doctrine of Fairness
Consider Baker V. Minister of Citizenship and Immigration Where bias against applicant found, fairness is no longer possible. Fundamental component of justice system. Requires courts consider "both sides" of any issue. Entitles parties to a fair hearing Courts must be, and appear, impartial. Appearance of bias is enough to warrant judicial intervention. Cardinal & Oswald v. Kent Institution, May v. Ferndale, Howard & Stony Mountain: principles of admin law apply in prison, too. Charter basis under s.7, too.
Criminal Law
Considered to be the "most coercive and intrusive form of public law." Purpose: denounce acts that Canadian society has determined are threats to the established order, anti-social acts, harmful acts, public wrongs. Simply rule-breaking? Nothing inherently "wrong" about the acts? Definition of a crime: an act that violates a criminal law and is punishable by jail terms, fines or other sanctions.
Key Principles of Contracts
Contracts can exist for almost anything -exceptions: criminal activities, unethical contracts and contracts contrary to public order. In order to be valid, a contract must: -Be entered into freely, with mutual and informed consent -Be undertaken by those with contractual capacity (e.g. no minors) -Concern an offer and acceptance (for specific goods or services. -Have valuable consideration -In some cases, be in a valid written form. Where one party fails to live up to contractual obligations, can sue for breach of contract
Defences to Negligence
Contributory Negligence: where plaintiff actions diminish liability of defendant. Accident: where no way to forsee, beyond the control of the defendant. (e.g. Blythe v Birmingham Water Works: severe frost results in damage to fire plug, resulting in a flood.) Voluntary Participation: e.g. Tallow v Tailfeathers: where voluntarily participating in risky activity (joyride in a stolen vehicle), no legal action. -Considered anti-social behaviour. Voluntary Assumption of Risk: where individuals voluntarily assume risks inherent to activities, no claim to damages if consequence arises out of the reasonable expectations of the activity. e.g. King v. Redlich, 1985
Torts vs. Crimes
Crime: public wrong, offence against the public interest. Concerned with guilt or innocence. Higher evidentiary standard: must prove mens rea (that a guilty intention accompanied the guilty act); also prove BARD (beyond a reasonable doubt) Tort: private wrong, offence against an individual, corporation, or government. Concerned with damages and liability Lower evidentiary standard: must only prove that respondent did something intentionally or was negligent which led to harm being caused (only initial act must have been intentional; subsequent consequences of the act may not have been forseeable); must prove case in a BoP (balance of probabilities) Example: assault - both a criminal offence and a tort (battery; intentionally inflicting physical harm)
Trial differences between Criminal and Civil Law
Criminal Juries: 12 jurors, unanimous decision required, no input on sentencing - merely determining guilt or innocence Civil Juries: 8 jurors, 6/8 must agree, can recommend disposition, financial award, etc Criminal Standard of Proof: Beyond A Reasonable Doubt Civil Standard of Proof: Balance of Probabilities (more probable than not that the defendant is responsible for damages) Criminal Burden of Proof: always on the Crown to prove actus reus and mens rea BARD Civil Burden of Proof: on the plaintiff/complainant to prove the defendant is responsible for wrongdoing on a BoP Criminal Limitations Period: for summary offences 6 months, for indictable no limitations Civil Limitations Period: in BC, must bring legal action within 2 years of incident; exception where plaintiff unaware of their right to bring action, then 30 years
Inchoate (incomplete) offences
Criminal responsibility usually requires some guilty act; inchoate offences are the exception: Counselling (s.464): more than simply to advise- must actively induce or advocate for a certain course of action. Attempts (s.24 &463): Where act or omission is beyond mere preparation and proximate to the intended offence. Conspiracy (s. 423): Related to organized crime, preventative offence.
Causation
Crown must prove, beyond a reasonable doubt that... the accused "caused" something to happen &... the accused intended the thing to happen (intent) OR that the accused should have known the result would happen (negligence).
Jurisdiction & Delegation of Power
Elected representatives are not capable of passing laws to govern every situation. Many of their lawmaking powers are therefore delegated to administrative agencies. Administrative agencies may have administrative and/or legislative power to assist in governing Canadian life. Delegation must come from the correct level of government, based on Constitutional division of powers. Province can only delegate powers it has jurisdiction over under s. 92; Federal government can only delegate power over areas listed in s.91.
Public Inquiries
Established through federal or provincial statutes. Inquiries Act, RSC 1985, c.1-11 Provides for the establishment of a public inquiry into anything related to 'good government' or public governance. Given powers to compel evidence similar to courts. Conclusion results in a report, including recommendations. More political than legal? Examples: National Inquiry into Missing and Murdered Indigenous Women and Girls. Missing Women Commission of Inquiry (BC) Commission of Inquiry into Actions of Canadian Officials in relation to Maher Arar. Vancouver Riot Review Braidwood Commissions of Inquiry Davies Commission into the death of Frank Paul
Legal Obligations to Parents
Family Relations Act: s. 90: (2)A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child. Omitted from FLA, 2011 Criminal Code s.215(1)(c) "Every one is under a legal duty ... to provide necessaries of life to a person under his charge if that person is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and is unable to provide himself with necessaries of life."
Grandparents and access
Grandparents have the right to apply for access . When the court decides whether to give you access, it looks at three things: whether it's in your grandchild's best interests what the parent(s) who have custody think about giving you access what the child's views are (if the child is old enough) Although it's normally in a child's best interests to have contact with extended family members, generally the child's parents will decide the amount and type of access — unless a court finds they are acting against the child's best interests in denying the access. Restrictions on activities in presence of grandchildren.
Examples of Administrative law Areas
Home owners need building permits to do some renovations, Injured employees seek workers' compensation, Farmers sell their produce, Owners of a trucking company transport goods between Vancouver and Montréal. The municipal government makes laws about whether a certain type of business can operate in a particular neighbourhood; The provincial government makes laws about the minimum wage and number of hours that an employer has to give to an employee; The federal government makes laws about our right to employment insurance and the rates we pay for telephone service; Specialists, such as doctors and lawyers, are governed by organizations that establish rules for practicing their professions.
Messervy v Field, 2013
If common law couples separated prior to March 2013 (coming into force of the FLA), do the new matrimonial provisions apply? Significant impact on division of assets as previous law did not recognize common-law couples as equal to married couples. Upon separation, common-law couples would have to prove their entitlement to any family asset and presumption was that they were not entitled to 50/50. Court finds that FLA requires common-law couples (living together for at least two years) to be treated equally to married couples.
1. Charge Approval
In BC, no citizen is charged with a crime until a prosecutor approves it: 2 stages 1) Is there a substantial likelihood of conviction? 2) Is it in the public interest to prosecute? Must apply Canadian standards, Canadian values Unless in the case where yes to both, charge will not move forward Desire of the victim is not usually a significant rationale in prosecution; weight, but not a lot of weight Some cases, e.g. sexual assault 40 years prior - public interest would add significant weight to victim desire Sub-Duties: Determine whether the charge will be pursued as indictable (more serious) or summary (less serious); in case of hybrid offences)
Court review of Admin agency
In some cases, a decision of the board or tribunal can be reviewed by the courts if there is an error of law or a more serious error of fact. If citizens feel that an administrative authority has made a decision affecting them that violates a constitutional, statutory or common-law principle, they may ask a court of law to review the actions of the authority. Canadian courts will only exercise their control over administrative authorities if the authority exceeds its jurisdiction, if it makes a decision which is patently unreasonable or if it follows improper unfair procedures. See Khosa (2009)
Partial Defences: Provocation & Intoxication
In specific contexts, can raise provocation to reduce the charge from murder to manslaughter (s. 232). (1)Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. (2) A wrongful act (...) that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
Principles of Administrative Justice in Canada
Independence in matters of governance & decision-making. Impartial and free from improper influence and interference. Transparency & Accountability. Rules of natural justice, principles of fairness. Accessibility of dispute resolution processes: Affordable, understandable, and proportionate. Expediency in both processes and decision-making Adjudicators and staff must be without conflicts of interest. be qualified in the subject matter and processes. Treat each other with dignity , respect and courtesy. Provide opportunities for informal dispute resolution Minimize disadvantage to unrepresented parties Provide consistency in procedure and adjudicative outcomes.
Two types of torts
Intentional Torts (must simply intend to do an act, then liable for any consequences) -e.g. assault and battery, sexual/workplace harassment, false imprisonment, malicious prosecution, intentional infliction of mental or physical harm (Bettel v Yim, 1978; With intentional torts, it is sufficient that the defendant intended harm: it is no answer to claim that some amount of the damage was not foreseeable.) Negligent Acts (where an individual has a legal duty to meet a standard of care, can be found liable of negligence for failing to meet the standard) -can be found in criminal law too
Custodial Orders
Joint Custody (typically means split 50/50) Shared Custody (typically means one person has primary custody and the other has access rights) Guardianship: the responsibility for making major decisions about such things as what kind of education, health care or religious training the children will receive, and how to manage anything the children may own, such as property or money. Assumption that both parents share guardianship regardless of custody arrangement. Access: the time the children spend with the parent who does not have custody.
Self-Defence
Like necessity and duress, self defence is based on the rationale that people may be forced to react to situations in ways that contravene the Criminal Code. It is assumed that these people were not acting entirely voluntarily. However, in all three situations, where there is a safe alternative, the defendant must pursue that alternative to violating the criminal law.
Two types of lawyer
Litigators: specialize in courtroom advocacy, drafting legal pleadings and giving expert legal opinions Solicitors: handle transactions, limit themselves to legal work not involving practice before the court
Components and rationale of the LSAT
Logical Reasoning, Analytical Reasoning and Reading Comprehension sections followed by an unmarked writing sample. Designed to assess: -the reading and comprehension of complex text with accuracy and insight -the organization and management of information and the ability to draw reasonable inferences from it -the ability to think critically -The analysis and evaluation of the reasoning and arguments of others
Areas of Family Law
Marriage, divorce, guardianship (custody) of children, maintenance payments on dissolution of marriage (spousal & child financial support), & matrimonial property division.
Dunlop & Sylverster v The Queen, 1979
Members of a motorcycle club, attend a party where some members participate in a gang rape. The two accused claim that they were simply present. Is mere presence at the scene of the crime enough for conviction as a party to the offence (s.21)? No-Crown must show some positive act or omission to further the unlawful purpose.
Negligence
Most common form of tort action. "The omission to do something a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something a prudent and reasonable man would not do." - Blythe v Birmingham Water Works, 1856 Legal standard for negligence: -A successful lawsuit requires: --A duty of care owed to complainant by defendant. --A breach of duty of care by the defendant. --Damage sustained by complainant. --Damage sustained in fact (and law) caused by defendant. --Assumes "reasonable fortitude and robustness of citizens...not impose liability for the exceptional frailty of certain individuals." ~Mustapha v. Culligan of Canada , 2008 Case law: see above, Donoghue & Stevenson, 1932
3 kinds of prosecutors
Municipal: - offences against city bylaws Provincial: - work for provincial attorney general - offences against provincial statues; e.g. motor vehicle act, liquor control act, etc -Exception: also prosecuted one federal statute, the criminal code Why? -Historical: BNA Act, 1867: provinces demanded to retain control over prosecution of crimes committed in the province -Bulk of the work at Provincial Courts: criminal trials prosecuted by provincial prosecutors -One federal courtroom -One provincial courtroom Federal: -federal statute prosecutors (offences against statutes enacted by the Parliament of Canada; employed by the Department of Justice) -Most common law prosecuted, the Controlled Drugs and Substances Act
Air of Reality
No defence will be considered by the "trier of fact" (jury) unless the accused satisfies the evidentiary burden of proof There must be some plausible evidence to support the defence. Evidence puts the defence in play there must be an "air of reality." Judge decides if the jury should consider the defence.
Recap of Defences
Once Crown has proven all elements of the offence, beyond a reasonable doubt, the defendant can raise specific defences, created either through legislation, or through the common law. During Crown's case, defence can allege key elements unproven. True defences: Necessity, Duress, Automatism, Self-defence and defence of property. "Partial defences:" Provocation & Intoxication in certain circumstances
Defence of Property (Defence)
Particularly different law than that of the US... S.35 (1): where (a) peaceable possession, and accused has reasonable grounds to believe that another person is about to enter, entering, taking, damaging property; the defence of property may be open if the defender acts to prevent the trespasses from entering, taking, damaging property. The defence act must be reasonable in the circumstances. Cannot act in self-defence against someone who is exercising legal right or is authorized by law.
Judges: overview
Prerequisites: Approx. 10 years in the active practice of law with general knowledge of criminal, family and civil law areas and experience in mediation or alternative dispute resolution. An outstanding legal reputation, including references from the Canadian Bar Association, the Law Society of BC and other judges. Personal characteristics such as decisiveness, evenness of temperament, fairness, open-mindedness, and common sense; Compassion for those coming before the Court and an understanding of their circumstances; Respect in the community; Humility; Good health; Appreciation of and experience with diversity; Demonstrated dedication to public service; Ability to cooperate and work with others. Understanding of the role of the Court in society, and respective roles of the judiciary and other participants in the justice system. Appointed for life, mandatory retirement at age 75 (judicial independence) Presumption of impartiality in court; some acknowledgement of apparent bias
Professional Codes of Conduct
Provide non-legally binding guidelines for lawyers to follow: -Duties relating to integrity, competence, honesty, confidentiality, impartiality, avoidance of conflicts of interest, reasonableness in fees, maintaining for respect legal profession, etc.
Federal Admin Tribunals
Public Service Commission of Canada Federal Ministry of Labour Canadian Human Rights Commission Canadian Radio-television and Telecommunications Commission Immigration and Refugee Board National Energy Board National Parole Board Privacy Commissioner of Canada RCMP Public Complaints Commission Transportation Safety Board
Abuse of Discretion
Re Sheehan and Criminal Injuries Compensation Board Sheehan assaulted by fellow inmates. Applies for compensation, refused on grounds that Sheehan was an inmate of a federal institution, therefore under federal law and that he should have applied for compensation elsewhere. Were these relevant issues to factor into decision? Lower court finds inappropriate interpretation amounting to abuse of discretion. The statute does not require the Criminal Injuries Compensation Board to deny compensation to inmates, nor does it require the Board to deny federal inmates. Victims are not required to apply for compensation elsewhere; they are simply not barred from doing so. Court of Appeal finds lower court erred in its capacity to review the Board decision. Judicial Review is to determine whether the Board refused Sheehan's application "...within the proper limits of its discretionary function." Courts are not able to consider the correctness of the discretionary interpretation, only whether the Board followed the correct procedure, as outlined by its parent statute.
Child Custody
Revolves around the court's determination of the best interests of the child. Considers the condition, means, needs and other circumstances of the child: the well-being of the child including any needs for care and treatment, the love and affection between the child and other persons, the education of the child, the capacity (including financial) of each prospective caregiver to look after the child, and the views of the child (more important as the child gets older). Considers who looked after the child while the parents lived together, each parent's plan for the care of the child is following the separation, relationship between the child and the prospective caregiver, time that the parent has to spend with the child. A child's race, culture or aboriginal heritage and the custodial parent's willingness to respect and foster the child's cultural identity is a relevant consideration. Past conduct only relevant if it impacts the ability of a person to parent. Personality, character, and stability will be taken into account. A person's alcoholism, drug addiction, sexual misconduct, dishonesty, and lack of social responsibility may also be considered in determining the best interests of the child. Expectation that contact with both parents is in the best interests of the child. The court must seek to make an order that will facilitate the child having the maximum contact with each parent, subject to the child's best interests.
Support for a spouse upon divorce
S. 15.2(4) Must take into consideration: the length of time the spouses co-habited the functions performed by each spouse any agreement between spouses S. 15(.2(5) Misconduct irrelevant- not punitive payments. S. 15.2(6) Should recognize: economic disadvantage arising from the breakdown or marriage financial obligations due to primary care of children, promote the economic self-sufficiency of each spouse within a reasonable time. Hickey v Hickey, 1999 -Court considers factors set up in Divorce Act and adjusts the support payments for inflation and increased financial needs of children as they age. -SCC also finds that Appeals courts' ought not to over-rule lower courts unless clear grounds to do so. -Upholds principle that there can exist a lifetime financial obligation to one's spouse. Bracklow v Bracklow, 1999 -Where compensation is not indicated and self‑sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself. -Expands the basis of the spousal support obligation under the Divorce Act to include need as well as compensation.
Duress as a legislated defence
S. 17: A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.
Parentage
S.24 (1) a donor is not automatically a parent, unless declared a parent by the court. Will look to the relationship between parents and intentions prior to and during the pregnancy or life of the child. S. 26 parents are the child's birth mother and biological father (unless adopted) Male persons married to, or living in a "marriage-like" relationship with, birth mother's are presumed to be the fathers. Can have more than two persons listed as parents, too.
Unequal division of family property and debts
S.95 of the FLA allows for unequal division where it would 'significantly unfair' to divide it equally. how long your relationship lasted; if the two of you made any agreements other than written agreements that were signed and witnessed; how much each of you contributed to the other spouse's career or career potential; how the family got into debt; if your family debt is worth more than the family property, each spouse's ability to pay a share of that debt; and if one spouse did something to raise or lower the family debt or property value after the separation.
Edwards v Van de Perre, 2001
SCC asserted that there was no evidence for why race should be an important consideration in this case (custody and whether race should play a role in deciding it)
Spousal Support Guidelines
Set of principles published in 2008 to assist courts in determining appropriate spousal support. Not legally binding; use is voluntary. Must first determine whether a spouse is entitled, per the Divorce Act, then can use the guidelines to determine how much support is appropriate. Considers the strength of any compensatory claim, the recipient's needs, the age, number, needs and standard of living of any children, the needs and ability to pay of the payor, work incentives for the payor, property division and debts, and self-sufficiency incentives.
3. Bail hearing (judicial interim release)
Should the accused be held in jail or released after arrest Presumption of innocence: default is release, reasonable bail Must satisfy one or more of three grounds for detention 1) primary ground: will the accused show up 2) secondary ground: does the accused present a threat to the public, substantial likelihood of interference in administration of justice or reoffending 3) tertiary ground: seek the detention of the accused to maintain confidence in the administration of justice 1) strength of the case 2) gravity of the offence 3) circumstances of the offence 4) potential for a lengthy jail sentence
Subjective & Objective Mens Rea
Subjective: generally refers to the individual's actual intention or knowledge. -Our concern is whether the individual actually formed the intention or actually had the requisite knowledge for the offence. Objective: refers to what a reasonable person, in the position and with the knowledge of the accused, would do in the circumstances. -Supposed to consider what an average person would do. To determine what form of mens rea is required for a successful conviction, turn to the Criminal Code. The individual sections will each describe the specific form of MR required. Also lots of case law to further clarify level of intention.
Types of Offences:
Summary: -provincial court judge -$5000 fine and/or 6 month sentence -Considered less serious Indictable: -Generally, accused elects judge alone or jury -Increased range of sentencing options -Considered most serious offences Hybrid: -Where crown chooses to proceed by indictment or summarily -Majority of offences are hybrid
Tests to determine causation:
The "but for" test: "but for the actions of the defendant, would the result have occurred" Significant Contributing Cause Test: Were the accused's actions a significant contributing cause of the harm? - There can be multiple contributing causes, simply must be a significant contributing cause.
Tort Law:
The remedying of private wrongs; breach of legal duty -objective to compensate victims for the acts done by other individuals, corporations or governments (Includes injuries, damage to property, loss of opportunity, misrepresentation, failure to meet a duty of care, etc...)
Statutory Limitations
This section does not apply where the offence that is committed is: high treason or treason, murder, attempted murder, piracy, sexual assault, SA with a weapon, aggravated SA threats to a third party or causing bodily harm, forcible abduction, hostage taking, or an offence under sections 280 to 283 (of young persons) robbery (except in Saskatchewan) assault with a weapon or causing bodily harm, Agg assault, unlawfully causing bodily harm, arson
Universities as Administrative Agencies?
Thomas v Mount Saint Vincent University Instructor applies for tenure, is denied, seeks to have decision reviewed. Review board overturns committee decision, recommends Thomas is granted tenure. President declines to grant tenure. Instructor seeks judicial review of President's decision. Can courts review university decision-making? Yes. Universities are public, funded by government and based on statutes, therefore they fall under the general area of administrative law. Therefore, they must abide by procedural fairness. Unfair to have a review board appeals process with no realistic power.
Role of Crown Counsel
To present evidence of an offence in a fair and objective manner to the court Duties: Charge Approval (see separate term card), Disclosure/Trial preparation, witness preparation/support, conduct trial in an ethical manner, make fair submissions regarding bail and sentencing
Criticisms of the LSAT
Too academic in nature, doesn't determine how well-rounded a person is, how well they can advocate, or any special skills the student may have. US-style test. Assumption that it applies to Canadian lawyers equally. Test inherently biased towards white, middle- upper class culture? No predictive capability better than the GPA from a three or four year university degree. No evidence that those with high LSAT actually fare better as lawyers or in law schools.
Divisions within Civil Law
Torts, Contracts, Property, and Family Law -These are typically disputes between private citizens or businesses. -Dealt with mostly in the superior courts
Damages
Usually money, awarded to the winning party of a lawsuit; different kinds: -Compensatory Damages: intended to compensate for the actual loss suffered by the plaintiff (goal is to make winning party "whole again") -Punitive Damages: intended to punish and deter (where defendant's conduct is malicious, oppressive, egregious to the point that it offends common senses of decency.) Whiten v. Pilot Insurance: Punitive damages are awarded if all other penalties are inadequate to accomplish the objectives of retribution, deterrence, and denunciation; Judges ought not to overrule a jury "unless award is so disproportionate as to exceed the bounds of rationality."; Upheld $1 million determination of punitive damages. -General Damages: residual category including loss that is difficult to assess at a monetary figure. Includes pain and suffering, loss of enjoyment, future losses, etc. Courts look to the plaintiff's age, nature of injury, severity and duration of pain, level of disability and loss of lifestyle.
Grandparents and custody
Where it is in the child's best interests, grandparents can be granted custody and guardianship, too Chera v Chera, 2008 BCCA, Court of Appeal held that the entitlement of parents to raise their children does not create a presumption in favour of the parent. The court will start with the common sense inference that parents should be entitled to raise their own children. The grandparent or other third party must show the court that the parent or parents of the child cannot discharge their parental duties effectively and then show the court that the best interests of the child would be most served by placing the child in their care.
The Common Law Duress Defence
Where the offender (not an accomplice/party) is subject to threat of death or serious injury, And the offender believes that the threat will be carried out The threat must be of a gravity to cause reasonable person to act as the offender did And the offender had no safe avenue of escape, The common law defence may be available. Turn to statutory defence first, then common law defence if statutory defence is too narrow.
Consent to bodily harm?
While one cannot consent to death (s. 14), there is no specific provision allowing or disallowing consent to bodily harm. However, case law has determined that the only time one can consent to assault is if there is some social utility to the activity giving rise to the bodily harm: Example: sports like boxing, ultimate fighting, martial arts; stunt actions. Implied consent to physical contact within the boundaries of fair play
Liability
whether a person should be financially liable for wrongdoing
