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143 terms

Law exam review

STUDY
PLAY
section 2: 4 fundamental freedoms
Freedom of:
-conscience and religion
-thought, opinion, belief, and expression
-peaceful assembly
-association
Section 7
Everyone has the right to life, liberty and security
Section 8
Everyone has the right to be secure against unreasonable search or seizure
Section 10: rights upon arrest
1. To be informed prompty of the reasons therefore.
2. to talk to a lawyer quickly and before talking to anyone else.
3. to have your 'day in court'.
Section 11: rights upon being charged
1. To be informed of the charge.
2. To be tried within a reasonable time.
3. To be presumed innocent until proven guilty
4. not to be denied reasonable bail.
Sovereignty
A state's authority to govern its own affairs and make laws.
Habeus Corpus
The legal right of a person who is imprisoned without explanation to appear in court within a reasonable time.
Extradition
An agreement between 2 states to return fugitives from justice to their home countries
Citation
Lists basic facts in a legal case and makes it easy to locate the case in a law library.
feudalism
A political, social, and economic system that existed in Europe between the 9th and 15th centuries that was based on the relationship of the lord and vassel. The King gave Lords power over a certain state to make/ enforce laws
Defendant
A person who is sued in a civil action or charged with a criminal offence.
Rule of Law
A basic rule that neither individuals nor the government is above the law.
Lobby
To seek to influence the government to make certain laws
Crown Attourney
A prosecutor in criminal matters who works on behalf of society.
Precedant
A court decision used to decide a similar case
Sanctions
Penalties or restrictions imposed on a country
Amending formula
The procedure to change Canada's Constitution.
War crimes
Criminal acts that violate the customs of war
Jurisdiction
The authority or power to make laws
Plaintiff
The person who sues in a civil action.
Bill
A proposed law that has not been approved yet.
Deterrence
The principle of discouraging or preventing an offender from committing an offence in the future (specific deterrence); or of discouraging or preventing all members of society from committing a similar crime (general deterrence).
Rehabilitation
The restoration of a person to good physical, mental, and moral health through treatment and training
Retribution
The principle that the penalty is deserved for the crime or wrong committed.
Segregation
The placement of dangerous offenders in prison to protect society
Mitigating circumstances
Circumstances of the crime that lessen the responsibility of the offender
Aggravating circumstances
Circumstances of the crime that increase the responsibility of the offender.
Recklessness
A state or instance of acting carelessly or without regard for the consequences of one's actions.
Intent
The true purpose of one's actions; also the state of a person's mind who knows and desires the consequences of his or her actions. (mens rea)
Motive
The reason for committing a certain act. Is used in investigation, not in court case
Congressional
The awareness or understanding of certain facts, which provides the necessary mens rea for an offence.
Abetting
Encouraging, enticing, or urging another person to commit a crime.
Due diligence
A defence that the accused took reasonable care not to commit the act or that the accused honestly believed his or her actions were innocent.
Indictable offences
Severe or particularly serious criminal offences which have severe penalties.
Culpable vs non-culpable homicide (KNOW THIS)
culpable = blameable. (murder, manslaughter, infanticide etc) non culpable = no blame. (accident, self defence)
Mens Rea
'A guilty mind'
Summary conviction offences
Minor criminal offences which are tried immediately without a preliminary hearing or a jury.
Conspiracy
A serious agreement or arrangement to commit an unlawful act.
Criminal Law
The body of public law that declares acts to be crimes and prescribes punishments for those crimes.
Accessory after the fact
Someone who, after a crime is committed and knowing it was, helps the criminal escape
Actus Reus
'A wrongful deed'
The Judge
Referred to as 'the Bench' or 'The Court'. They have full control of the courtroom during preliminary hearings and trials. They always decide the sentence if the accused if found guilty.
The Crown Prosecutor
They represent society in the courtroom. They have the 'burden of proof'. They must prove beyond a reasonable doubt that the accused committed the crime. They must present ALL evidence, even if it will weaken their case. Depending of the amount of evidence, they will decide if the case should go to court.
Defence counsel
Represent the defendant. They do not have to prove anything, just create doubt about the prosecutor's case. They must always represent their client to the best of their ability, even if their client is guilty.
The Court Clerk
Reads out the charge against the accused, swears in witnesses, tags evidence, handles most of the paperwork.
The Court Recorder
Creates a transcript of the entire trial.
The Sheriff
Make sure the accused appears in court, find prospective jurors, assist the judge, serves summonses, carries out court orders (seizing assets).
Stay of proceedings
A court order to stop the trial proceedings until a certain condition is met.
Empanelling
The process of selecting the 12 jurors. 75-100 people are picked by a selection committee and summoned. If they do not appear they can be criminally charged. Names are picked randomly but can be exempted if they have a personal relationship with anyone in the case.
Arraignment
Reading the charge to the accused. The accused then enters their plea.
Contempt of court
An act that is meant to embarrass, hinder, or obstruct a court in its administration of justice, or lessen its dignity.
Privileged communications
Information shared in confidence cannot be used as evidence in court. (eg. spouses, patients and doctors, clients and lawyers)
Similar fact evidence
Evidence showing the accused has committed similar offences in the past.
Hearsay evidence
Hearsay is not admissible in court. any account of a crime must be given from a direct eye-witness. Hearsay is admissible if the witness is quoting someone who is dying.
Opinion evidence
An expert on a specific subject outside the court's knowledge is called in to give their expert opinion.
Character evidence
The defence can use character evidence to show the accused's credibility. If they do it, the prosecutor is then allowed to use previous convictions as evidence.
Photographs
They may or maynot be used as evidence. It's the judge's decision. The photographer will usually take the stand to prove it was not photoshopped.
Electronic devices/Video surveillance
They are admissible evidence if all procedures are followed. It is treated as a last resort.
Polygraph evidence
What a person said is admissible; the polygraph test results are not.
Alibi
A witness who can testify that the accused was somewhere else at the time of the crime.
Self-defence
A usable defence but you must only use force that is necessary and reasonable to defend yourself.
Legal duty
Allows people to commit acts that would otherwise be offences. (eg. police officers search someone's house with a warrant.)
Duress
The threat or use of violence; forcing someone to commit an act.
Honest mistake
The offender truthfully did not know he or she had committed a crime. Usually happens with shoplifters.
Intoxication
Being drunk impairs one's judgement. They may assault someone without intending to hurt them.
Automatism
Involuntary behavior.eg. sleep walking, convulsions.
Consent
The injured party took the assumption of risk
Entrapment
A police officer who encourages someone to break the law so they can catch them. It is not recognized as a defence.
Double Jeopardy
The accused cannot be tried twice for the same charge.
Equity
The ideal, quality, or fact of being fair, just and impartial
Points system
A method for evaluating applicants for independent immigration based on merit.
Human rights
Rights that protect one from discrimination by other individuals and in certain areas on one's life.
Jurisdiction
An area of authority or power to do something, such as enforce laws.
Suffrage
The right to vote in political elections.
Codification
The process of assembling a system of law into one statute or a body of statutes.
Infringed
Broken or violated, as in an agreement or right is violated.
prejudice
Having a preconceived opinion of a person based on that person's belonging to a certain group.
Riot
An unlawful assembly in which at least 2 people disturb the peace violently, with physical harm to others, with damage to property.
Interned
Confined to a special area or camp, usually used in wartime.
Summation
A summary of all the jury's key arguments and evidence
Hung jury
The jury cannot reach a unanimous verdict. The jury is then dismissed and a new jury is selected.
Absolute or Conditional discharge
There is no conviction recorded against the offender. Usually a sentence for first time offenders only.
Suspended sentence and probation
If the offender meets certain conditions (behaves) they will not have to serve their sentence.
Conditional sentence
The sentence is less than 2 years maximum where the offender is allowed to serve the time in the community. The offender must be on good behaviour and appear to court during that time.
Suspension of privilege
If an offender abuses a privilege, it is taken away from them. eg drivers/liquor licence.
Peace bond
A court order requiring a person to keep the peace and be on good behaviour for up to 12 months.
Restitution or compensation
The offender must repay the victim for damages.
Community service orders
The judge sentences an offender to work a certain number of hours for a local organization on a government project.
Deportation
Anyone who is not a Canadian citizen can be deported back to his or her country.
Imprisonment
The most used form of sentencing.
Concurrent sentence
An offender is convicted of two or more crimes and serve both penalties at the same time.
Consecutive sentence
An offender is convicted of two or more crimes and serve both penalties one after the other.
Youth Criminal Justice Act
1. Promoting accountability, responsibility, and consequences for all youth crimes.
2. Supporting long-term solutions to youth crime and reinforcing social values such as respect, responsibility and accountability.
3. Respecting national and international human rights protections for children, while protecting public safety.
4. Streamlining and making youth justice more flexible so that cases take less time and so that provinces can develop their own unique measures.
Small claims court
'the peoples court'. Only for suits of up to $25 000. Usually self represented.
Provincial supreme court
Usually represented by lawyers. Cases can be tried by a judge or a judge and jury. The jury only has 6 members and can decide by a majority vote.
Court of Appeal
Appeals from lower courts are heard by 3 or more judges.
Supreme court of Canada
The highest court in the country. Most precedent setting cases are resolved here.
Litigation
The process of suing. (parties involved are called litigants)
Cause of action
A valid reason for suing.
Limitation period
The span of time after an event where a claim can be filled and served.
Filling and serving a claim
The plaintiff fills out a form with her full name and address, the defendants full name and address, the amount of money being claimed, and a summary of the reasons for the claim. The claim must then be delivered directly to the defendant.
Defence reply
The defence must fill out a reply telling their side of the story. If they do not reply then the judge will rule default judgement and the plaintiff will win the case.
Payment into court
If the defendant knows the plaintiff has a strong case, they can simply pay the courts who will give the money to the plaintiff. There will be no trial.
Counter-claim
The defendant can file a law suit against the plaintiff, stating that it was the fault of the plaintiff.
Third party claim
A defendant may fill out a claim stating that a third party was responsible for damages.
Pre-trial conference
The last chance for the parties to resolve the dispute before the trial. Each party is allowed to hear the other's case
General damages
Damages that do not have a set $ amount. (loss of future income, pain and suffering)
Special damages
specific damages. You can put a $ amount on it.
Punitive damages
additional damages awarded to punish the defendant for bad, insensitive, or uncaring behaviour. It is meant to deter the defendant from reoffending.
Aggrivated damages
Also meant as a deterrent. The defendant's actions were incredibly violent, causing shock or suffering to the plaintiff.
Nominal damages
The judge can add this on. $1-$100. It is seen as a moral victory.
Injunctions
No money is involved. It is a court order for a person to do or not do something.
Garnishment
The courts contact the defendant's employer and arrange a deduction be added to their pay cheque every month until the debt is paid off.
Seizing Assets
The sheriff or bailiff takes something of value from the defendant until they pay back their debt. If the defendant does not pay, the item goes for sale in a police auction.
Negotiation
Parties talk to each other without anyone else. This is the simplest, easiest and cheapest form of resolution. However, it only works if both parties cooperate with each other.
Mediation
A third party is chosen to provide a relaxed, informal and comfortable environment where the parties can discuss their conflict. Any decision the mediator makes is not binding!
Arbitration
It is more formal than mediation. Both parties must agree that whatever decision the arbitrator makes is binding. It is much like court but much simpler and cheaper. Judge Judy is an arbitrator.
Characteristics of a negligence act
unintentional, unplanned, results in some sort of injury.
Elements of a negligence case
Duty, breach, causation, damages.
Duty of care
A specific legal obligation to not harm other people or their property.
Forseeability
the quality of being what a reasonable person should expect or anticipate as a result of certain actions.
Causation
Having one's actions cause or result in injury. There must be a direct connection between the defendant's act and the plaintiff's claim
Actual Harm or loss (damages)
The action must have resulted in an injury.
Contributory negligence
A defence in a negligence case where both the plaintiff and defendant are proven to be responsible. The defendant then only has to pay part of the claim.
Voluntary assumption of risk
The defendant must prove that the plaintiff knew of the risk of his or her actions and made a choice to assume the risk.
Invitee
A person on the property for a purpose other than a social visit
Licensee
A person who enters the property with the implied permission of the occupier. No economic benefit is expected to result and therefore the occupier has a lower standard of care.
Trespasser
A person who enters the property without permission. Occupiers must give a certain standard of care even to trespassers.
Motor vehicle negligence
When the plaintiff proves the defendant hit them with their vehicle, the burden of proof shifts to the defendant to prove they were not being negligent.
Vicarious liability
Holding a blameless person responsible for the misconduct of another. (If a teenager takes parents car and crashes it, the parents are responsible).
Battery
The unlawful and intentional touching of a person without that person's consent. It does not have to result in injury.
False imprisonment
'wrongful confinement' usually occurs when a store security suspects someone of shoplifting.
Nuisance
An unreasonable use of land that interferes with the right of others to enjoy their property.
Defences for trespassing (on land or self)
consent, self-defence, defence of others or property, legal authority, necessity
Defamation
an unjustified or untrue attack on a person's reputation. It can be intentional or unintentional.
Slander
Defamation through spoken words, sounds, physical gestures, or facial expressions.
Libel
Defamation in a visual/audio form that is available to the general public. (newspaper, TV etc.)
Defences against defamation
Truth, absolute privilege, qualified privilege, fair comment.
Truth
The best defence against a defamation charge is to prove that the statements made were true.
Absolute privilege
Members of parliament and all participants in courts have absolute privilege. They cannot be sued for anything they say so they can say whatever they want as long as it is relevant to the proceedings.
Qualified privilege
An expressed opinion during the course of one's work that is made without malice.
Fair comment
Media critics have the right to free speech and can say whatever they want. This defence only works if the statements were made without malicious intent.
Third party liability
A third party (like an insurance company) pays out the claim.