All notes for Crim 1100 (Midterm & Final) PDF

Preview

Summary

CRIM 1100 Notes (September 9th, 2016) Chapter 1 ​(Foundations of the Criminal Justice System) Rule of Law​ = ​no one is above the law​ (e. police officer can’t commit murder) Fundamental to a democracy is the rule of law The ​birth ​of the rule of law is the ​Magna Carta​ (1215, England) ● the cause...

Description

CRIM 1100 Notes (September 9th, 2016) Chapter 1 (Foundations of the Criminal Justice System) Rule of Law = no one is above the law (e.g. police officer can’t commit murder) Fundamental to a democracy is the rule of law The birth of the rule of law is the M  agna Carta (1215, England) ● the cause of Magna Carta: King John was arbitrarily taxing landowners ○ the landowners revolted, and King John relented and they signed the Magna Carta (preventing the King from arbitrary taxation) This is the first time in English History that a monarch authority was limited The rule of law stands for the important legal principles ● e.g. no one is above the law, no one in government can do whatever they want Laws must be clear (unambiguous) and apply to everyone evenly The principles founded in the Magna Carta and the Rule of Law have culminated the Canadian Charter of Rights and Freedoms The Charter was incorporated into our constitution in 1982 (Trudeau Era) Constitutional Law Constitution Act of 1867 (first act to incorporate Canada) Charter of Rights & Freedoms 1982 The Charter protects people from government action ● e.g. a law that infringes freedom of expression can be struck down by a court ● e.g. a police action that violates your Charter rights can lead to exclusion of evidence What’s the Definition of the Charter? ● it’s the p  rimary law of Canada, all other laws must conform to it ○ otherwise, judges can strike down the law ● The Charter contains a variety of sections, in this class we mainly deal with legal rights ○ Section 7-14 of the Charter (legal rights) ■ Right to life, liberty and security of the person (Section 5-7) ■

Rights against unreasonable Search & Seizure (Section 8)

■

Right to Counsel (Section 10b) = upon arrest, the accused m  ust be read their Charter rights and have access to a lawyer

Principles of Canadian Law ● Mens Rea = the crown must prove beyond  a reasonable doubt, the accused intended to commit the crime (gulity mind) ● Actus Rea = the crown must prove that the accused committed the criminal act The System of Criminal Law ● Canada inherited its legal system from the UK, hence we have a Common Law system ● System is based upon the doctrine of precedent of stare decisis (court case precedent) ● The CL system requires a judge to follow a higher court decision if facts are similar

September, 16, 2016 System of Criminal Law ● Canada inherited our common law legal system from England (UK) ● The Common Law emerged from decisions made by Judges in England's royal courts and is based on the doctrine of precedent ○ Precedent - meaning first, precedes all the others ○ Judges will write their decisions in a book (legal reports) that will be used as a precedent for future cases with similar circumstances ○ These books are called Case Law = like cases should be treated alike ●

Precedent is whenever a Judge makes a decision, this decision becomes a precedent ○ These precedents make up the common law

●

Stare Decisis = stick with the decision (use the precedent case) ○ this doctrine states that Judges must follow the precedents set by higher courts where the facts of the cases are similar

What is a Crime? ●

A Crime is an act or omission prohibited by law

The Classification of Offenses The Criminal Code contains three classes of offenses... 1. Summary Offenses: Less Serious Offenses ● Maximum jail sentence is less than 6 months, examples... ● Trespass ● Mischief under $500

2. Indictable Offenses (more serious offenses) ● Murder ● Sexual Assault ● Alarming the Queen 3. Hybrid Offenses (these lie between Summary & Indictable) ● the Crown has the discretion to proceed either indictably or summarily (hybrid) ○ depends on the seriousness of the offense (assault can range from regular to aggravated) and whether Offender has a record (how bad?) also depends on the facts of the case ● i.e. include theft under $5000, certain sexual assaults, assault, impaired driving

Criminal Law vs Civil Law ●

Civil Law involves private disputes between private parties

●

Criminal law is known as an area of public law, because a c  rime committed is a concern for all of society

A case may involve BOTH private and public law involved

Standard of Proof for Criminal Law vs Civil Law ● ●

In Criminal Cases, the crown must prove that the evidence shows that the accused is gulity beyond a reasonable doubt In Civil Cases, the plaintiff (person who brought the case) must prove their case on a balance of probabilities (this means the evidence must tip the balance at least 51%)

Two Main Explanations for the Origin of Criminal Law ●

The Value Consensus Model - this model views crime and punishment as reflecting societies commonly held views and limits our tolerance (laws come from either a consensus or the laws prohibit an act without consensus) a. Mala in Sa meaning wrong or evil in self (i.e. incest, cannibalism, sexual assault against a minor, necrophila, beastiltality, impared driving, murder, theft) b. Mala Prohibita meaning wrong because it’s prohibited (i.e marijuana laws, abortion laws, doctor assisted suicide)

●

The Conflict Law Model - this views crime and punishment as reflecting societies commonly held reflection that some groups have tremendous power to influence what laws should be passed, this model sees the rich and privileged as a group that most influences our laws

Two Sources of Law in Canada 1. Statutes (Criminal Code) 2. Judge create precedents that becomes Case Law or Common Law (one question about polygamy on the test, must know the law about polygamy) Moral Entrepreneurs: these are groups that take action against certain groups and lobby the government to enact certain legislation

Chapter 2: Dealing with the Structure & Process of the Justice System ●

Ethics is the foundation of knowledge that describes right from wrong

●

CJS personnel often confront ethical issues on a daily basis ○ i.e police must decide whether to pay Clifford Olson money for the location of missing bodies or Mr. Big tactics Legal Ethics are the rules that lawyers must follow to ensure they do not step over professional responsibility guidelines ○ confidentiality - all communication between solicitor and clients are privileged, therefore the lawyer may not disclose them to anybody without consent ● Another ethical duty is that the lawyer must not get into a conflict

●

September, 23, 2016 (remember the bolded terms in the textbook) Is the Criminal Justice System a deterrent? ● Studies show that Criminal Law can act as a deterrent to people only when certain conditions are present (three conditions that must be present) 1. They must know that legal punishment will be applied if they commit a crime 2. There must be certainty of punishment 3. The sanction must be applied swiftly when a crime is committed Marginalized/At-Risk Persons in the Criminal Justice System ● Aboriginals: live on the margins of society (poverty, unemployment, low income levels and high death rates) these things result in marginalization ○ major reason for the aboriginal plight is the colonization by europeans of Canada Key Concepts in the Criminal Justice System ● Legitimacy: many see the Criminal Justice System as rigged for the rich who can afford a good lawyer or sees the police as corrupt Accountability + Oversight (discussed in 2.2, textbook = m  ust know review counsel) ● there are mechanisms in the Criminal Justice System to check for corruption, unprofessional conduct, etc

Selected Trends in the Criminal Justice System ● The escalating costs of the Criminal Justice System ○ costs approximately 13 billion per year to maintain, the costs of housing O  NE inmate in federal prison is $100,000 a year Emergence of Conservative Penal Populism & Punitive Penology (P. 37) ● “it’s popular” such as in southern USA, they love to build prisons ● Penal Populism is a correctional policy based on political aims and not based on informed public opinion ○ i.e. “three strikes, you’re out” laws in the USA Challenges of Diversity ● the criminal justice system has struggled with conflicting values, for example Bill C-60 also known as the Quebec Charter ○ the Quebec Charter is a struggle between religious freedom and a government's push to ensure secularism in Government (only french signs in Quebec) There are two competing value systems underlying the Criminal Justice System, they are known as due process vs c  rime control ● the models conflict with one another ● in reality, the Criminal Justice System reflects both models in some form The Crime Control Model ● a model that emphasises protection of the community and apprehension of criminals Due Process ● this model emphasises legal rights for citizens and is a proponent of the Charter

The Role and Responsibility of Government in the Criminal Justice System ●

under the Constitution Act 1867, powers over Canada are divided between the federal and provincial government under Section 91 (fed) & 9  2 (prov) ○ Federal government enacts the law (criminal law) because they create the Criminal Code and provincial government handles Administration of Justice (such as policing, building courts)

Criminal Code (IMPORTANT) ● covers most of the crimes in Canada, other codes like the Controlled Drugs and Substances Act covers the drug crimes ● the Criminal Code sets out the laws, procedures, etc for prosecuting federal offences, it also sets out sentencing guidelines

The Canadian Legal System is Adversarial in Nature ● in an adversarial system, you have the j udge at the top, usually two lawyers (crown and defense) with both making pitches to the Judge (neutral arbitrator) on who is right ●

this is a System of Justice based on two opposing sides, the Crown and the Defense arguing before the neutral Judge, the notion is the philosophy behind the adversarial system is that the truth will emerge from the conflict

Chapter 4: The Structure & Operation of Policing History ● the first full-time police force was created in London in 1829 by Sir Robert Peel in reply to increasing fear of crime and disorderly associated with the industrial revolution ● Peel introduced crime prevention like pro-active policing, such as community policing ○ High standards of recruitment and training ○ Police stations, etc History of Policing in Canada ● Quebec City was the first to have a police force, British Columbia established its first force in 1  858 ○ Today there are 70,000 officers/number of police have increased over the years Levels of Policing ● Policing is carried out at four levels… 1. Federal Police (RCMP) as a federal force, the federal RCMP enforce the criminal code and other criminal statutes across Canada a. Most RCMP do NOT act as a federal force, instead most are contracted out to various cities and provinces to work as city/provincially police 2. Provincial Police, this force serves any areas outside municipalities (such as highways and countrysides of a province) a. in BC, the RCMP acts as the provincial police (all provinces use the RCMP as provincial police, except for O  ntario (OPP), Québec (Sûreté du Québec) and Newfoundland 3. Municipal Police, they serve within cities boundaries and they enforce all criminal laws and cities can also establish their own contract with the RCMP 4. First Nations Police, first nations communities have an option of developing their own police on a reserve. They have full power to enforce the criminal code

September, 30, 2016 (Chapter 4) Private Security Services ● Recently there’s been a tremendous growth in Private Security… ○ Too many types ■ Contract Security: security hired by a company ■ In-House Security: security owned/operated by company (e.g. airport) All private security workers must be certified in B.C. (pass the test given) ● Generally private security do not have the same powers as police do Private Security have the powers of an ordinary citizen ● However the Criminal Code gives private security the right to arrest and detain someone who commit any offence on private property (as agent of the owner, of the property) ○ in other words, a Loss Prevention officer can arrest a shoplifter at the store Supreme Court of Canada decisions suggest that the Charter does apply to Private Security ● read Charter Warnings when making arrest (must read them their Charter Rights) Parapolice ● is a community of constables that have limited powers of enforcement but more than private security Pluralization of Policing ● there is an increasing role in private and parapolice ○ private security is 4:1 the police, outnumber the police Police Work in a Democratic Society ● the police mandate has a contradictory aims ○ Protecting the Public and Order ○ People’s Individual Rights of the Charter ● police often complain that rights of offenders are given more weight than rights of victims Governance of the Police (not covered much in Exam) Rules & Activities of the Police ● traditionally, police activities were classified into three major categories ○ Crime Control - responding to an investigating crime ○ Order Maintenance - controlling the public peace, including parties/events ○ Crime Prevention & Services - police work with the community to prevent crime

Today, policing has become more complex in a highly technical age ● (e.g. cyber-crime such as identity theft, cyber-bullying, bank fraud) Factors Influencing the Role and Activities of Police ● new laws are having a huge impact on police powers ○ (e.g. Anti-Terrorism Act) which gives expanded powers to police to deal with suspected terrorist ○ the police can hold suspected terrorist for lengthy time without charging them ○ offends the Habeas Corpus rule (must be brought before Judge when arrested) ● Another law that affects police is the rule in “R. v. Stinchcombe (SCC, 1991)” ○ must be full disclosure of evidence of the accused before he’s tried, so the Crown (police) must provide all evidence/reports of the accused in a timely manner or the accused can apply to a Judge for a stay of proceedings Recruitment and Training of Police ● to become a police officer, candidates must pass basic qualifications, meaning… ○ you must be 19 years old ○ no criminal record ○ permanent citizen/resident Preferred Qualifications ● College degree ● Bilingual ● Veterans ● Volunteer Work ● Work/Life Experience Police Training ● In BC, recruits are sent to the Justice Institute where they complete the three block training program ● Blocks 1 & 2 are learning at the academy while Block 3 is in the field under supervision RCMP training is in “Depot” in Regina, Saskatchewan for 6 months and 6 months field training in various detachments in Canada The Police Occupation ● The pressures and demands of policing contribute to what researchers call the “working personality of the police” ● This describes how police view themselves and the w  orld around them during work ● some features of the working personality of the police is ○ the excessive suspiciousness ○ cynical personality ○ preoccupation with danger ○ difficulties balancing legal rights of the accused with fighting crime

Challenges of Police Work ● police work can be stressful leading to alcohol or drug use Chapter 5 (Police Powers and Decision Making) The Charter + Police Powers ● police derive their powers from many statutes and common law decisions ○ however, most of their powers come from the Criminal Code The law that has the greatest impact on police powers is The Charter ● The Charter gives accused rights when they are arrested and tried but the Charter also gives the accused the right to challenge police actions alleging their Charter rights have been violated ○ A judge can stay proceedings or exclude evidence from the trial if they find a Charter violation

October, 7, 2016 (review bolded terms in Textbook for Exam) Chapter 5: Police Powers ● Charter applications may be made to a Judge in two important respects: 1) to ask a Judge to exclude evidence at the trial of an accused where there has been a Charter violation a) this usually results in a stay of proceedings (case is dismissed) if a Judge grants the application 2) to ask a Judge to stay proceedings against the accused where there has been a Charter violation a) Section 11 of the Charter guarantees a trial within a reasonable time, if a trial is unreasonably delayed, a judge can enter a stay of proceedings Hence the Charter acts as a limit on police powers, some examples of Charter limits on police powers include ●

Police require p  rior judicial authorization (search warrant) before conducting search

●

Undercover police operations have limits due to Charter

●

Stinchcomb mandates that all evidence in the police or Crown’s possession must be disclosed to the accused in a timely manner ○ if not, a Judge can order a stay of proceedings for the accused

●

Courts have also expanded police power in some areas, most areas not though ○ for example, Mr Big Operation are Charter soundproof

The Powers to Arrest & Detain ●

the power to arrest is found in the Criminal Code and some other Acts ○ e.g. Section 25 of the Criminal Code allows police to use as much force as is necessary in the execution of their duties

●

A formal arrest triggers certain requirements of the police, primarily Charter warning being read to the accused

●

Police must upon arrest or detention read the Charter warning to the accused, including reason for arrest, right to counsel and right to silence

●

Most people are released after they are arrested & are given a promise to appear (PTA) ○ a PTA requires the accused to attend court at a certain time/place, failure to attend results in a bench warrant

●

If an accused is kept in custody because the offense is serious (etc), the accused must be brought before a Judge within 24 hours of arrest to determine if he/she should be released at the bail hearing

●

If a police officer catches someone committing a crime, they c  an arrest the person without a warrant ○ if a police officer obtains an “arrest warrant” they can use it to a  rrest an accused for past crimes

●

Normally, a police officer will obtain both arrest warrant and an information before the Justice of the Peace ○ an information is the “charge” against the accused

●

Section 495 of the Criminal Code permits police to make a warrantless arrest in the following circumstances… ○ catch someone committing any offence (citizens can only arrest indictables) ○ police believe on reasonable and probable ground that the p  erson has committed an indictable offence ○ believes person is about to commit an indictable offence (preventative arrest) ■ Anti Terrorism Act is an example of when police use preventative arrest

●

The Bail Reform Act requires that after someone is arrested and charged, they be released with a promise to appear (unless it’s in public interest to detain them longer) ○ “public interest” is defined as 1) to establish the I.D. of the person 2) to secure or preserve evidence relating to a case

Search & Seizure  ection 8 of ● Everyone has a right against unreasonable search & seizure under S Charter of Rights and Freedoms ○ If a court finds police violated Section 8, they can exclude evidence pursuant to Section 24(2) of the Charter (exclusion of evidence) ●

A search must be unreas...