CIVIL CRIMINAL by dfsdf224s

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									         CIVIL                   vs.         CRIMINAL
                 liability usually based on loss
                law brought into play (usually)
                    at option of injured party

                      same conduct can be both
                      a civil wrong and a crime
 -   ordered to compensate             - stigmatized
              V                        - prosecution can still
                                       proceed even if V fully
                                       compensated and doesn’t
                                       want to proceed

                                       - punished (i.e., penal
                                       consequences)

                                       - duties a person owes
Rts & Duties of individuals            society
among themselves
                                       - state - exercises control
individual controls
proceedings
                SOURCES of CRIMINAL LAW

1.   Common Law

2.   Doctrine of Precedent

3.   Statute

4.   Morality



           CLASSIFICATION of OFFENCES

      SUMMARY                HYBRID   INDICTIBLE



                         LIABILITY

                  ACTUS REUS – guilty act

                  MENS REA – guilty mind
     7 General Principles of Criminal Procedure

1. Fairness
2. Efficiency
3. Clarity
4. Restraint
5. Accountability
6. Participation
7. Protection
               CRIMINAL PROCEDURE
= “A series of actions which must be performed in order to
validly administer justice w/i the state”

- criminal statutes - define crimes and set out procedures

- involves
     1. Detection
     2. Apprehension
     3. Conviction

- for the protection of the Accused’s Rights and Liberties
     1. Presumption of Innocence
     2. Crown has Burden of Proof
     3. Rt. to Silence
     4. Rt. to make full answer and Defence
                          PROCEDURE
1st Police    - Detect/Investigate a Crime
              - if RPG exists - Arrest/Apprehension (lay charge)
              - provide Disclosure (of case @ ) to Crown
              Attorney
2nd Crown    - decides whether and how to proceed on charge @
    Attorney
             - (Have Discretion)
3rd Defence  - Obtain Disclosure from Crown and meet with
    Lawyer   client
             - plead guilty or go to trial (i.e., not guilty)
    Plea     - Have Pretrial with Crown and/or Judge i.e.,
    Bargain? discuss whether withdraw charge, opinions on
             sentence)
4th Judge     a) do Guilty Plea in front of and sentences
    and/or    or
    Jury      b) go to Trial - decides if guilty or not guilty and if
              guilty decides sentence.

              *Note: either Provincially appointed (i.e.,
              Provincial court) or Federally appointed (i.e.,
              Superior Court)

             *Note: if Trial @ any Pretrial Motions or
             Applications?
             (i.e., Charter Motions, Third Party Records,
             Criminal Record Applications, Similar Fact
             Motions, Voluntariness Witness, Seabuyer
             Applications)
 = defendant @ = against
                                    SENTENCES
                        i.e., Diversion/Restorative Justice
                               (*Note:- Crown Offers
                              - Judge doesn’t decide)
                                         vs.
1   DISCHARGES          - absolute
                        - conditional
2   PROBATION           (with or without Community Service Hours)
                        (with or without Suspended Sentence)
3   FINE
4   CONDITIONAL         = Jail sentence but served in community “House Arrest”
    SENTENCE            (i.e., if Jail would have been under 2 years)
                        (i.e., if no minimum sentence prescribed under Criminal
                        Code)
5   JAIL
    -i.e., for Adults   Federal (i.e. Penitentiaries)         Provincial (i.e.,
    (18 and over)                                             Reformations)
                        *sentence over 2 years                * sentence under 2
                                                              years
                        Parole
                        - after 1/3 maybe
                        - after 2/3 statutory (usually)       - may get out after 1/3
                        - after 6 months or 1/6               - after 2/3 = get out
                                                              - less serious offences
                        Sentence - Rts to Day Parole

                        - more treatment programs
                        * - for more serious offences
     Young Offenders - The Youth Criminal Justice Act
    (12 - 17 years)
                     - jail/custody more rare than under previous youth act

                        - rehabilitation stressed
                  CHARTER OF RIGHTS AND FREEDOMS

• April 17, 1982 entrenched into the Canadian Constitution
• emphasizes individual rights
• much impact on Criminal Courts in Canada

Section 1   = Guarantee of Rights and Freedoms
            - Oakes test
            - Remedy Legislation/Statute can be struck down

Section 52 - Constitution - the Supreme Law of Canada
           - (any law inconsistent with it = no force and effect)
           - (no longer Parliamentary Supremacy)
• Individual Remedies Section 24(1) & (2) - i.e., can get his/her change stayed
  or evidence excluded

Legal Rights = Sections 7-14
S7 = life, liberty and security of person
S8 = unreasonable search and seizure
S9 = can’t be arbitrarily detained/imprisoned
S10 = rights on arrest or detention (i.e., Right to Counsel)
S11 = rights for person charged with offence
   - i.e., tried within reasonable time - i.e., right to be presumed innocent
S12 = no cruel or unusual punishment
S13 = right against self-incrimination
S14 = right of interpreter

Legal Freedoms
S2 = fundamental freedoms
   - i.e., (b) freedom of expression - i.e., (d) freedom of association
S19 = use of French or English in Courts
S35 = protection for Aboriginal rights and treaties
S15 = equality protection

*Note: None of these Rights/Freedoms = Absolute, i.e., Parliament or Province -
could declare a law to operate notwithstanding the Charter
          WRONGFUL CONVICTIONS

i.e., Guy Paul Morin (imprisoned 18 months)

●   murder of Christine Jessop 1984
•   2 Trials
    • 1st 1986 aquitted
    • 2nd 1992 convicted
•   Bail 1993 (pending Defence Appeal)
•   Exonerated 1995 (by DNA evidence)
•   Led to Kaufman Inquiry 1996

i.e., David Milgaard (imprisoned 23 years)
i.e., Donald Marshall (imprisoned 11 years)
i.e., Thomas Sophonow (imprisoned 4 years)
i.e., Romeo Phillion (imprisoned 30 years)
i.e., Greg Parsons (imprisoned 6 weeks)
i.e., Ronald Dalton
i.e., Randy Druken (imprisoned 6 years)
i.e., Clayton Johnson (imprisoned 5 years)
i.e., Robert Baltovich (imprisoned 9 years)
i.e., Steven Truscott (imprisoned 10 years)
OAKES TEST (or “Proportionality Test”)
  (to determine if legislation should be struck down and
                     declared invalid)

To establish that a limit/infringement of a Right or Freedom
is justified under a piece of legislation, two main criteria must
be met:

 1. The objective of the limiting measures must be
   “sufficiently important” (must relate to concerns that
    are “pressing and substantial”).

  2. The government must show that the means/way chosen
     to effect this limit are “reasonable and demonstrably
     justified” (involves a form of “proportionality test”).

      Three important parts of the proportionality test
    a) measures used to limit must be carefully designed to
       achieve the objective in question (can’t be arbitrary
       or unfair).
    b) measures used should impair as little as possible the
       Right or Freedom.
    c) must be a proportionality/balancing between the
       effects/consequences of the measure/limit and the
       objective being sought (i.e., the more severe the
       limit/infringement, the more important the objective
       must be).
                          POLITICAL THEORIES

• help us understand patterns of legal decisions
• i.e., help understand how power, social inequality and social change play roles
  in decision-making

         Six Key Theoretical Frameworks (that have influenced Law)

1. Liberal Political Theory (i.e., like Libertarian view John Stuart Mill)
   Doctrine - “Rule of Law”
   - individuals free to pursue activities unless so harmful to others that they must
   be prohibited or regulated (i.e., Self-Protection)
   - state’s main duty to preserve - Individual Freedoms

2. Conservative Political Theory (like Authoritarian view)
   - Social Order = higher priority than individual freedoms

3. Feminist Theory
   - women are disadvantaged
   - law reflects male dominance

4. Marxist and Neo Marxist Theory
   “Class Struggle”:
   - Law = instrument of the dominant class - disguises social inequality
   - officials act on behalf of dominant class

5. Race Studies Theory
   - Stereotypes of races and/or ethnic groups
   - discriminatory legal treatment

6. Postmodern Political Theory
   - cautious/pessimistic approach
   -*new forms of dispute resolution are developed to empower minority groups
   (i.e., Restorative Justice)
Euthanasia                        Assisted Suicide
(another party performs act) (person dying performs act)
(comparison -> Canada, United States, Netherlands, Australia)

Canada
•  Assisted Suicide -> section 241 Criminal Code prohibits
•  Euthanasia - > treated as killing/homicide (mandatory
   minimum penalties)
•  Patient can however, refuse life-sustaining treatment or have it
   withdrawn
•  Rv. Rodriguez [1993] (S.C.C.)
   •    wanted ct. order allowing her assistance to commit suicide
   •    therefore, asked section 241 Criminal Code to be declared
        invalid
   •    said sect. 241 violated her sections 7, 12, and 15 Charter
        rights
   •    S.C.C. denied her Appeal
•  Law Reform Commission of Canada -> recommended
   continuing Criminalization of euthanasia and assisted suicide
•  Private members bills and Senate Committees -> resulted in
   continuing Criminalization
•  Canadian Medical Association (CMA) -> official position
   against euthanasia and assisted suicide, although individual
   physicians often support
•  Public Support -> substantial
•  Research scarce on how much it is occurring
•  cases not often prosecuted given light sentences
Australia
•    patient can refuse life-sustaining treatment and have it withdrawn
•    euthanasia and assisted suicide illegal
•    research plentiful
•    LAWER = “life-terminating acts without the patient’s explicit request”
•    slightly lower euthanasia and assisted suicide rates than the Netherlands but
     higher LAWER rates

United States
•    all states criminalize euthanasia (= murder)
•    Oregon and Washington the only states where assisted suicide legal
•    patient can refuse life-sustaining treatment or have it withdrawn) (Glucksberg)
•    American Medical Association (AMA) -> officially opposes euthanasia and
     assisted suicide (although many physicians support)

Netherlands
•    Prior to 2001, Euthanasia and Assisted Suicide had no mandatory minimum
     penalties, and Assisted Suicide was only punished if suicide had actually
     occurred. Further, although both practices were officially illegal, they were
     actually unofficially permitted if certain requirements were met
     Now:
     • Euthanasia and Assisted Suicide as of 2001 the Dutch Penal Code was
         amended and now Euthanasia and Assisted Suicide are no longer
         criminalized if certain conditions have been met
     • large public support
     • reliable research did not exist before 1990
     • many requests made for euthanasia and assisted suicide but few granted
•    Problems ->
     •       i) Lawer cases
     •       ii) required conditions (i.e., reporting cases by physicians) - not being done

Issues/Justifications
1.    “Consensus”?
2.    Killing versus Letting Die
3.    The Sanctity of Life
4.    The Right to Die?
5.    The Integrity of the Medical Profession?
6.    Palliative Care
7.    Autonomy and Beneficence
8.    Slippery Slopes?

								
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