Legal Studies Final Exam review PDF

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Exam Review All topics after midterm: plus structure of Canadian Government, systems of law, sources of law and charter. 25 multiple choice questions- 20%, 10 fill in the blank 5%, one short answer question 5%, one essay question 10%.

Criminal Law Actus Reus    

Latin term that means “an action involving guilt.” Before an accused person can be convicted, the Crown must prove that the accused committed the actus reus of the offence. Can be determined by carefully reading the provisions that create the offence. In most offences accused must actually take some action in order to meet the actus reus of the offence. Some offences involve failure to act, omissions, etc.

Mens Rea   

Latin term for “a guilty mind.” Crown must show that the accused had a willing mind and was capable of making a choice to act. Two broad categories of mens rea: knowledge or intent, recklessness or wilful blindness o Knowledge or Intent  Means that a person intends or means to commit the offence and can foresee the wrongful results.  Offences that require this level of mens rea often contain words like “intentionally” or “knowingly” or “wilfully” committed the actus reus of the offence. o Recklessness or Wilful Blindness  Wilful blindness is closing one’s mind to the consequences of one’s actions.

Strict Liability  

Offences in which the prosectution is only required to prove the actus reus of the offence. There is no requirement to prove a mental element. Defence may request diligence, which requires a person to take all reasonable precautions to avoid the offence.

Absolute Liability

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Offences in which the prosecution need only prove the actus reus beyond a reasonable doubt. There is on requirement to establish a mental element to the offence. He or she may be convicted if the actus reus has been proven and there is no defence established that is related to the commission of the actus reus.

Incomplete Offences 

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Attempts o The fact that someone was unable to carry out an offence because “something went wrong” does not mean that an offence has not been committed. o It is unlawful to attempt to commit an offence as stated in section 24.1 of the Criminal Code. o Crown must prove beyond a reasonable doubt that the accused had the intention to commit the offence. Does not need to prove actus reus was complete. o Accused must only have taken some step towards the commission of the offence. Conspiracy o is an agreement between two or more people to carry out a criminal offence o in order to prove a conspiracy, the crown must prove that the people involved had a serious intention to carry out the proposed act. o However if the actus reus was actually completed by some members of the planning group and not others, they can still be charged with conspiracy as well. o Often used in drug offenses and in charges laid against organized crime. o The penalty upon a conviction for conspiracy is the same penalty one would have if the offence has been fully carried out.

Parties to an Offence 

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Aiding and Abetting o To be found guilty of aiding, the accused must have offered the principal offender some help in carrying out the offence. o Abetting is encouraging the principal offender to commit the offence. o Crown must prove the accused knew that the principal was committing or intended to commit an offence. Counselling o A person who advises or gets another person to commit an offence may be found guilty of the offence, even if the offence was committed in a different way that what was suggested. o Person may even get convicted if the person who was being counselled didn’t do it. Accessory after the Fact

o One may also be held criminally liable for an offence if one knew that an offence has been committed and one offered to help the offender for the purpose of helping him to escape detention or capture. o Providing food, shelter, etc. to a felon is considered grounds of being an accessory after the fact. Defences going to the Actus Reus Automatism     

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Is a common law defence Refers to behaviour that a person performs while in a state of impaired consciousness. Most common offense is someone who is sleepwalking The state of automatism must have been caused by something other than a mental disorder or self-induced intoxication. May be caused by a physical condition that produces impaired consciousness, a blow to the head, or even by involuntary intoxication such as unknowingly drinking a spiked beverage. Would result in completely acquittal of the accused. Automatism is a complete defence to the charge. Although very difficult to establish.

Provocation    

Only can be used as a defence of murder If it works, the conviction for murder will be reduced to the lesser and included offense of manslaughter. Partial defence. Must include blows, words, or gestures that cause a person to lose the power of selfcontrol. It must be sudden, and the reaction of the accused must be immediate. Must have no time at all to consider consequences to actions.

Duress      

Is a very complicated defence, with both a statutory and a common law aspect. In order for this defence to be established, the accused must act under the threat of 1) the accused must have acted solely as a result of threats of death or serious bodily harm to herself or another person. 2) Threats must be serious to believed they will actually come true. Threat too far into the future may no be considered to be a real threat. 3) The threats must have been of such gravity that would cause any other like-minded reasonable person in that situation to act in the same way. 4) the accused must not have had an obvious safe avenue of escape.

Necessity    

The accused is saying some sot of urgent or exigent circumstances required him or her to commit the offence. He or she broke the law in order to prevent the infliction of greater harm. There also must not be any legal alternative available to the accused. Common law defense.

Self Defense     

Statutory defence Complete defense in that, if successful it will lead to the acquittal of the accused. A person is committed to use reasonable force to protect themselves and those under their protection from an unprovoked assault by another. Only successful when the force used was not intended to cause death or grievous bodily harm and when the force was no more than what was necessary to repel the attack. In cases when an accused claiming this defence killed or seriously injured the attacker, the accused must have acted under a reasonable fear of death or serious injury.

Defences Going to Mens Rea Mental Disorder  

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Replaced the defence of insanity in the Canadian Law. In order to establish the defense, several elements must e proved o An accused must be suffering from a mental disorder as defined in section 2 of the code “disease of the mind.” Up to judge if legal definition is met. o The disease of the mind has been established, and one of two must be met. The accused is incapable of  Appreciating the nature or quality of his act  Knowing it is wrong If found not guilty by mental disorder, one may have completely discharge. Very rare. More likely the court would either order the accused to be detained in a secure psychiatric hospital for up to 90 days, or refer the case immediately to a board which has 45 days to review it and decide when to let them back into the community.

Intoxication   

Available for specific intent offences only. Crown must prove that the accused commuted the actus reus intentionally, knowingly or recklessly. This is not available for the vast majority of the Criminal Code. Specific intent offences are sometimes referred to as offences requiring an ulterior intent. The crown must prove what amounts to two levels of intent.

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The defense of intoxication may be used to establish that the accused was too impaired to form the necessary second level of intent for specific intent offences. In 1994 R. v. Daviault, the Supreme Court ruled that intoxication could be a defence to a general intent offence if the level of intoxication was so extreme that it producecd a state in the accused akin to a mental disorder or automatism. Public outcry was so bad, the federal government added section 33.1 to the Criminal Code, states the use of self-induced, voluntary intoxication to a general intent offence involving an element of assault or interference with the bodily integrity of another.

Law Of Torts Elements of Tort  

The word tort means “wrong” and comes from the old Norman-French language. Deals with certain types of wrongful and or harmful conduct that causes certain types of harm or damage to another person. There are three elements in this definition of a tort. o Wrongful conduct o Harm o Cause

Battery   

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The intentional infliction of a harmful or offensive contact with another person. Doesn’t have to harm victim, just be offensive or unwanted (e.g spitting.) Contact with a person if unwanted and offensive to that person, will constitute battery, even if the purpose of the contact is meant to benefit the victim. i.e surgery without consent. Unwanted or offensive contact constitutes battery even if the victim is unaware of the contact at the time it is made.

Assault 

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Assault is the intentional creation in the victim of a reasonable apprehension of imminent harmful of offensive contact. Assault is the creation of a reasonable apprehension of imminent battery. Assault includes actions such as shaking a fist or pointing a gun at another person. The victim must reasonably fear that the offensive contact is imminent- i.e sneaking from the back of someone with a frying pan is battery, taking a punch/missing their face is considered assault. Thus the difference between the two is assault requires fear, battery is actually hitting someone.

False Imprisonment

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Occurs when a person intentionally and without lawful justification confines another person within fixed boundaries. Person can be confined anywhere- house, boat, etc. Victim must be totally confined within definite boundaries. No false imprisonment if there is a reasonable means of escape from the area of confinement. No false imprisonment if a person voluntary submits to confinement. However it is false imprisonment if a victim “voluntarily” goes into a confined area to avoid embarrassment, for example, if detained without justification on suspicion of shoplifting.

Trespass 

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Trespass to Chattels o The wrongful interference with things owned by or in lawful possession of another person. o This tort covers the unjustified touching of chaattels owned by or in the lawful possession of another, whether or not damage is caused to the chattel. i.e teenager who keys car. o Trespass covers taking and withholding chattels. Trespass to Land o The intentional interference with things owned by or in lawful possession of another person. o Done when a wrongdoer enters without consent. o Also occurs when told to leave property and doesn’t, even if entering was legally allowed. o Action is used primarily as a means of asserting a right of ownership to real property so as to prevent the trespasser from obtaining a possessory title to the property.

Defamation 

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Is the publication of a statement that a reasonable person would see as damaging to one’s reputation or that holds the person up to contempt, hatred, scorn, or ridicule; or that causes a person to be discredited or shunned. Comprised of two torts: slander (spoken words or gestures) and libel (more permanent statements, such as those in writing, in movies or on television.)

Defences to Intentional torts and to negligence action 

a plaintiff may succeed in proving that a defendant has committed an intentional tort. However if the defendant can successfully establish one of the recognized defences to the intentional torts, the defendant will not be liable to the plaintiff.

o Consent:  If the victim consents to the commission of an act that would otherwise constitute a tort, the wrongdoer is not liable.  Consent is invalid if obtained by fraud, under duress, or from someone who is legally incapable of consenting.  Especially significant in tort actions arising from medical treatment or sports-related injuries. o Self-Defense/Provocation  A person may, without liability, harm another in order to protext himself from an actual or threatened attack. To constitute self-defense, the purpose of the action must be to prevent future or continued aggression, not to retaliate for a past attack.  For the defense to succeed, the use of force itself must be reasonably necessary, and the amount of force used must be reasonable. o Defence of others  This defence would arise where a person harms another person in order to protect a third person. Same principles apply to this defence as to the defence of self-defense. o Defence of Property  A person is permitted to defend his property against wrongful interference by the use of reasonable force.  Most commonly raised where a property owner takes steps to physically eject a trespasser. Force used must be only sufficient to expel the trespasser and must not cause unnecessary injury. Negligence 

Duty of Care: a duty owed by all persons contemplating an act or omission to all persons who might reasonably be affected by the act of omission.

Wrongful Conduct- Duty of Care 

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According to the law of negligence, a person undertaking an act is not required to know about the world at large. In deciding what actions t undertake, people are not required to think about everybody all the time they are only required to think about some people. These people are those “who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions….in question.” To prove guilt, plaintiff must prove defendant owed duty of care to him.

Wrongful Conduct- Breach of Duty of Care/Standard of Care

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Once it is established that a person owes a duty of care to another you need to determine the standard of care owed to that person and the breaching of the duty of care. The standard of care owed by one person to another is a duty to exercise reasonable care and skill towards the other person so as to to avoid causing harm to that person. Stand of care is measured by reference to the reasonable person (which varies with circumstances.) Circumstances that affect the specific standards of care include o The Inherent Danger of the Activity  The more inherently dangerous an activity is, the higher the standard of care to which the person undertaking the activity will held. o Important to the Community  A person engaged in an activity for personal fain is held to a higher standard of care than a person engaged in an activity that is of important o the community. o Profession or Occupation of the Defendant  If the defendant is a member of a profession that involves the employment of particular skills, she is required to behave in accordance with the standards of the reasonable practioner in that profession.

Contributory Negligence 

Topic addresses how the courts handle the situation where more than one party is negligent.

Contributory Negligence of the Plaintiff 

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What it is: o Where there has been contributory negligence on the part of the plaintiff, it means that the plaintiff has failed to act carefully in protecting his own safety; it doesn’t mean they necessarily breached any duty owed to the plaintiff. Effect of Plaintiff’s Contributory Negligence o In Ontario there is the Negligence Act. o The plaintiff will not be totally disentitled to damages; rather, the plaintiff’s damages will be reduced proportionally to the extent to which she was at fault.

Joint Tortfeasors 

The word “tortfeaser” means someone who commits a tort. Is used when more than one person is responsible in tort for the injuries caused to a plaintiff. Under the provisions of the Ontario Negligence Act, the court determines the extent of responsibility of each of the tortfeasors and then apportions liability for damages accordingly.

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If plaintiff does not sue both parties involved in negligence, the tortfeasor can by a proceeding call a third party proceeding, which is a procedure in a lawsuit where, if P sues D and D claims the damage was done by X, D can have X added as a third party in the lawsuit.

Damages in Torts: Tort law is more about compensating victims rather than punishing wrongdoers. Compensatory Damages  

A monetary award made to a successful plaintiff to compensate the plaintiff for the injuries and losses the plaintiff suffered because of the acts of the defendant. Two types of compensatory damages o Special Damages  Also called specific damages, compensate the plaintiff for actual monetary losses and out of pocket expenses incurred prior to judgment.  It is necessary to specifically ask for them in the statement of the claim, and prove each and every item requested. o General Damages  Two types of General damages  The first compensates the plaintiff for items of non-pecuniary loss- that is, loss not easily measureable in dollar terms, such as pain/suffering, etc.  To be rewarded this kind, the plaintiff must present evidence in court as to pain she has endured and the impact that the injuries suffered have had on her life.  The second type of general damages compensates the plaintiff for anticipated out-of-pocket expenses, such as future medical expenses and future loss of wages. Court will estimate.

Punitive Damages    

Damages paid to a plaintiff not as compensation for a loss, but to punish exceptionally outrageous or wrongful conduct by a defendant Also called exemplary charges. Purpose of these damages is to punish the defendant and, by making an example of him, to deter others from behaving in a similar fashion. Not commonly awarded.

Law and Disability

Models of Disability:

Medical Model:    

is the determination of disability as a medical condition – emphasis on biological inferiority of patients. Mental disability as a sickness that needs to be cured by medical intervention Treat disability as an individual problem Focuses on medical needs and suggests assistance out of charity; does not raise issues of justice, or human rights for the disabled.

Economic Model:    

Focus on individual’s inability to participate in paid labour force; little attention to accommodation. Economic integration and welfare maximization Introduction of social programs to support people with disabilities – a way to increase their employability or reward past contribution to the economy Uncertainty towards disabled who never worked.

Sociopolitical Model:    

1970s-1980s Importance of socio-political context of disability – disability is socially constructed Deinstitutionalization of people with mental disabilities Equal treatment; need for accommodation.

Prohibition of discrimination on the basis of disability:   

Charter S.15 (1) Every individual is equal before and under the law… Canadian Human Rights Act, s.3 The prohibited ground of discrimination are… disability. Ontario Human Rights code, s. 1,2,5 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of … disa...