unit 1: heritage chapter 1: law, its purpose and · pdf fileclu 3mi student notes created by...

CLU 3MI Student Notes Created by Ms. Beattie

UNIT 1: HERITAGE Chapter 1: Law, its Purpose and History

Day 1: Law, its Purpose and History (pp. 3-6)

- society is fascinated by law: TV programs, trials, court TV, books, films

- Canada is a democracy - citizens elect law makers (politicians) who make laws to

suit the majority of Canadians

- the law is constantly changing to reflect changing values e.g. same-sex marriage

legalized in the House of Commons during the summer of 2005

- games and organizations have rules, societies have laws: both necessary to keep

peace and order

- if Canadians don’t agree with a law, they can form a ‘pressure group’ or ‘lobby

group’ and lobby the gov’t to change the law, raise public awareness organize

demonstrations, and initiate court challenges

- to enforce laws, society introduces punishments; the harshness of these penalties

will depend on the values & customs of a society

- e.g. stealing in Canada might result in suspended sentence, a jail sentence, or an

alternative justice like a healing circle; in another society someone convicted of

stealing might have a hand amputated

- one important function of law is to settle disputes or disagreements, thru

negotiations or the court

- some laws establish rules of conduct e.g. Highway Traffic Act (sets minimum

driving age, speed limits, drivers’ licencing, traffic laws)

- law enforcement: police

- criminal law is a branch of law dealing with illegal actions & their penalties

- lawmakers are limited by ‘constitutional law’: The Canadian Charter of Rights

and Freedoms is part of our constitution (the Canadian Constitution, 1982)

- contract law protects people in situations where they are asked to sign agreements

Day 3:


The Divisions of Law (pp. 14-21) - law is divided into two basic types: substantive law and procedural law - substantive law (the substance of law) consist of laws that list the rights and obligations of citizens - procedural law (the process of law) outlines the steps to take to protect rights Substantive Law - is divided into public & private law Public Law - controls relationships between the gov’t and its citizens - includes criminal, constitutional and administrative law

Criminal Law - is a set of rules passed by Parliament - defines crimes (offences against society) & penalties for law-breakers - found in the Criminal Code , Controlled Drugs and Substances Act, and the Youth Criminal Justice Act - society is represented by a Crown attorney who tries to prove the charges against a defendant beyond a reasonable doubt

Constitutional Law - the Constitution Act, 1982 divides powers amongst levels of gov’t: federal, provincial and territorial Administrative Law - involves government agencies like liquor control boards and the CRTC, in charge of TV, radio and telecommunications

Private Law (a.k.a. Civil Law)

- outlines legal relationships between private citizens, and between people and organizations - its purpose is to manage the behaviour of persons & organizations in

conflict with each other & award damages to the wronged party - there is no Crown attorney (i.e. no R v. person) - there is a plaintiff (who initiates lawsuit) who is suing the defendant - the plaintiff’s lawyer must prove the defendant is at fault & caused damage


- the judge hears both sides and makes decision after weighing evidence (the balance of probabilities)

- the same incident can result in both criminal & civil cases - private/civil law can be further subdivided into family, contract, tort, property and labour law

Family Law - deals with relationships between family members e.g. divorce issues Contract Law - deals with legal agreements e.g. broken contracts Tort Law - deals with wrongs between people e.g. malpractice or negligence Property Law - deals with anything that has cash value e.g. property rental Labour Law a.k.a. employment law - governs relationships between employers and employees

Criminal Law (a public law) Civil Law (a.k.a private law)

Types of offences criminal code offences against society e.g. manslaughter, assault

civil offences between persons or persons and organizations e.g. negligence, trespassing

Parties involved Regina vs. defendant plaintiff vs. defendant

Example case R. v. Smith Smith v. Walmart

Burden of proof & Standard of proof

Crown attorney must prove guilt beyond a reasonable doubt to judge or all 12 jurors

plaintiff must prove defendant is at fault on the balance of probabilities

Types of courts criminal courts: inferior & superior superior court = choice of judge or jury inferior court = judge only

civil courts: e.g. family, small claims; judges only, no juries; no lawyers for minor claims & offences

Penalties imprisonment or diversion programs: absolute or conditional discharge, suspended sentence, conditional sentence, deportation, fines

1) general damages 2) special damages 3) punitive damages 4) aggravated damages 5) nominal damages Other remedies: 1) injunctions 2) costs


Day 4: The Early History of Law (pp.10-12) - the laws of ancient civilizations have had a great influence on the dev’t of Canadian law The Code of Hummarabi - Hummarabi was a famous king of Babylonia (now Iraq) about 3800 B.P. - he recorded 300 laws, known as the Code of Hummarabi, one of the most important and earliest of written laws - the laws were ‘codified’ = numbered and organized and by headings: family, criminal, labour, property, trade, business - retribution was important = for every crime a punishment: “an eye for an eye, a tooth for a tooth” - see excerpts p. 10 Moses and Mosaic Law - centuries later, Moses gave laws to Hebrew people, as set out in the Old Testament of the Bible i.e. the Ten Commandments - severe punishments e.g. adultery = stoning death - punishment included restitution = repaying victim - see excerpts p. 11 Roman Law - ancient Rome had first lawyers - Roman Empire ruled Europe from 100 C.E. to 500 C.E. - while Byzantium (now in Turkey) was the capital of the Empire, emperor Justinian (527-564 C.E.) codified 1000 years of Roman laws = Justinian Code - these laws emphasized equity: equality under fair and just laws Napoleonic Code - in 1804 Emperor Napoleon Bonaparte revised French law, which had been based on Roman Law and the Justinian Code - called Napoleonic Code or the French Civil Code - still the basis of law in many European countries and Quebec


Day 5: The Development of Canadian Law (pp. 12-18) - in 1066 William the Conqueror imported a system of gov’t from Europe to England called ‘feudalism’, whereby the king owned all the land and divided it amongst his lords & nobles (his vassals – servants) who would give him loyalty and military service - the lords had vassals of their own to farm the land and pay a percentage of their produce to the lords and to the church - the feudal system forms the basis of our modern property laws - lords acted as judges until the king appointed travelling judges to hold trials called assizes - by the 13th century laws and regular punishments had been established and these decisions became the basis of English common law - the common law system was introduced to North America by the colonists Precedent - common law is based on the rule of precedent - a legal decision that is taken as a guide for subsequent cases - the rule of precedent is a.k.a. stare decisis - Latin for “to stand by earlier decisions”

- by treating similar cases alike, English judges developed a consistent law - court cases could be appealed to the monarch - today, lawyers and judges still refer to earlier decisions as precedents in coming to a verdict and sentence - thus, trial lawyers present earlier cases to the court to influence decisions Case Law - common law is often called case law because many cases in court are recorded and published - each recorded case is given a title, or citation, making it easy to locate - see p. 15 for examples The Rule of Law - in 1215 England’s King John was forced to sign the Magna Carta, the “Great Charter” (a list of legal rights) which recognized the principal of the rule of law: 1) general recognition that law is necessary in an orderly society 2) that the law applies equally to everyone, including the highest officials 3) that a person’s legal rights cannot be take away - it also guaranteed the right of habeas corpus: not to be held unlawfully for a crime and to appear before a court in a timely manner - in Canada, the rule of law brings order & prevents the use of violence in solving disputes and the abuse of human rights


Parliament and Statute Law - around 1265 the first Parliament, of reps. from all parts of the country, was formed in England following a revolt by nobles against King Henry III - in 1689, Parliament passed the Bill of Rights guaranteeing free speech, free elections and freedom of assembly (when King James II tried to force Catholicism) - since that time Parliaments are seen as the institution that represents the people and their wishes, an important step in democracy Statute Law - the function of Parliament is to pass laws, called statutes - courts must consider both the common law and the statute law in making a decision - Canada’s substantive law includes 1) common law decisions made in courts and 2) statute laws (legislation) passed by gov’t (i.e. Parliament)


Day 6: The Development of Canada’s Constitution (pp.19-20) - July 1, 1867 our first constitution was enacted by British Parliament: the British North America Act (BNA Act) - Britain still controlled our foreign affairs until 1931 when Britain passed the Statute of Westminster - in 1949 the Supreme Court of Canada became the highest court of appeal - to be truly independent of Britain we needed our own constitution so we didn’t have to go to the British Parliament for changes to the BNA Act - in 1982, after years of negotiation, a new constitution document was transferred to Canada - to make changes to the Constitution Act, 1982, requires the consent of the federal gov’t (Parliament) and 2/3 of the provinces with 50% of the population: this recipe is called the amending formula - the BNA Act was renamed the Constitution Act, 1867 and is still a main part of the Constitution Act, 1982, which also includes the amending formula and the Canadian Charter of Rights and Freedoms - the Constitution Act, 1867, divides the powers of the federal, provincial and territorial gov’ts - it outlines which gov’t has jurisdiction: the authority to make laws in specific areas How Laws Are Made in Canada - a law that the gov’t has proposed is called a bill; once it is passed by Parliament it’s called an act, or statute law - Parliament consists of the House of Commons, the Senate and the Gov. Gen. - each M.P. is an elected representative of a riding; there are now 308 ridings, and M.P.s in Canada - a bill goes thru 2 readings in the House, then goes to a committee for in-depth study and changes, then for a third reading in the House before it goes to the Senate for 3 readings and committee study; the G.G. signs the bill or gives a nod to give the bill royal assent and pass it as a law - provincial laws go thru 3 readings in the provincial legislature then to the lieutenant-governor for his or her signature - municipal by-laws concerning local issues are voted on by a mayor or reeve and an elected council Canada and International Law - international law governs relationships between the world’s 191 sovereign states (independent countries)


-international law is based on 3 types of law: customary law, treaty law and resolutions Customary Law - customary law is formed from customary practices & recognizes the following basic principles: 1. sovereignty is a nation’s absolute right to govern itself - under international law all sovereign states are equal, regardless of size, etc. 2. new states gain recognition as sovereign states by being recognized by other countries e.g. Taiwan as separate from China 3. states are bound by international law only by giving their consent freely, not by intimidation or force 4. states must show good faith in the way they interpret & use international laws, with common sense and reasonableness 5. freedom of the seas: states cannot claim ownership of the high seas 6. international responsibility: states which commit wrongful acts may face criminal penalties and duty to compensate wronged party 7. self-defence: the Charter of the United Nations declares the threat or use of force against other states as unlawful; but states have the right to defend themselves 8. humanitarianism: respect for the interests of humankind, including disaster or famine relief Treaty Law - treaties are binding written agreements entered freely by states - bilateral treaties are between 2 states - multilateral treaties involve 3 or more states - types of treaties include charters, conventions and protocols - e.g. in 2001 Canada signed the Kyoto Protocol, to reduce emissions of greenhouse gases - treaties deal with the following matters: 1. territory, land and seacoast 2. diplomatic law and immunity - foreign diplomats are not subject to all laws 3. protection of nationals abroad - travellers entitled to life, liberty and property 4. extradition and asylum - states sign extradition treaties with each other, promising to return escaped suspects home for trial; without a treaty, a country can grant asylum (safe haven) to a foreigner 5. international trade - e.g. NAFTA, 1994, free trade agreement between Canada, USA & Mexico 6. arms control - aimed at preventing nuclear war; banning or reducing numbers of weapons


Day 7: Resolutions (p. 26)

- in international law, resolutions are considered ‘soft law’ because they don’t have

the force of customary law or treaties & are not binding on the countries who vote

for them

- however, they are important because they can be adopted quickly & focus

international attention on an issue or situation that demands action

- they can also lead to future treaties

The Role of International Organizations: The United Nations (pp. 26 - 29)

- the United Nations was formed in 1945 at the end of WWII to promote peace and

international cooperation

- it now has 191 member countries (only Taiwan and Vatican City are not

members)

- the U.N. General Assembly passes resolutions by 2/3 majority vote by all

members

- resolutions carry strong moral authority only

- the U.N. Security Council is responsible for international peace and security & its

decisions are mandatory to its 15 members

- 5countries are its “permanent members”, the victors of WWII: China, France,

U.K., Russia and U.S.A.; these countries have veto power over all decisions; thus

any of these 5 countries can stop the Security Council from taking an action

- during wars, the Security Council tries to arrange cease-fires or to send a peace-

keeping mission of troops

- Canada has participated in almost all UN peacekeeping mission and Lester

Pearson won the Nobel Peace Prize in 1957 (several years before he became Prime

Minister of Canada) for bringing peace to Egypt after it seized control of the Suez

Canal and was invaded

- the UN Charter also allows the Security Council to impose sanctions against

nations, often economic sanctions that forbid trade with the warring country (for

example, the UN imposed trade sanctions against Saddam Hussein’s Iraq between


1990 and 2002; many people suffered malnutrition and health crises because of the

lack of food and medicines during these years)

- the judicial arm of the UN is the International Court of Justice (ICJ), a.k.a. the

World Court, based in The Hague, Netherlands; it hears only civil cases

- the first world criminal court was the Nuremberg Tribunal established in 1945 to

try Nazi leaders for international crimes defined as: 1) crimes against peace, 2) war

crimes, and 3) crimes against humanity

- in 1993, the UN Security Council established an International Criminal Tribunal

in The Hague to prosecute war crimes committed in the former Yugoslavia and

Rwanda

- in 2002, the UN established a permanent International Criminal Court (ICC),

with 120 member states, also in The Hague, Netherlands

Alternative Dispute Resolution (ADR) (pp. 33-34)

- bogged down courts in Canada are more and more turning to ADR

- ADR uses the following methods, outside of court:

Negotiation: two parties communicate with each other until a decision is reached

Mediation: a third party (mediator) listens to the two parties in the dispute and

helps them come to a decision acceptable to both

Arbitration: a third party (an arbitrator) listens to the two parties and makes a

decision; often an expert, the two parties agree in advance to respect his decision

- ADR is a growth industry


Chapter 2: The Rights and Freedoms of Canadians Day 8: Development of Human Rights and Freedoms (pp. 38-42) Rights and Revolutions: - many wars and revolutions had to be fought throughout history for the concept of human rights and freedoms to spread - natural rights: life, liberty and security thought to be independent of gov’t - human rights voiced in the 1776 American Declaration of Independence - U.S. Constitution became law in 1788, 5 years after the American Revolution ended, freeing the U.S. from British rule - in 1791, 10 amendments (changes) to the Constitution were made and the U.S. Bill of Rights was born - they are still the basis of freedom and civil rights for Americans - in 1789 the French people rose up to overthrow their rulers: the French Revolution - feudalism and the privilege of rulers and Church were abolished - also in 1789 the new French National Assembly passed the Declaration of the Rights of Man and of the Citizen, which became the basis of future modern democracies Abolition of Slavery: - in 1865 the 13th amendment to the U.S. Constitution abolished slavery forever, after the Northern Union forces won the American Civil War The Universal Declaration of Human Rights: - following WWII, world leaders formed the United Nations in 1945 - in 1948 the U.N. adopted the Universal Declaration of Human Rights which was signed by nations around the world - it was pioneered by Canadian John Humphrey - all future documents of human rights have been based on this document, including Diefenbaker’s 1960 Bill of Rights and Trudeau’s 1982 Charter of Rights and Freedoms


Day 9:

Human Rights in Canada after WWII (pp. 44-47)

- Prime Minister John Diefenbaker’s gov’t passed the Canadian Bill of Rights in

1960, turning unwritten common law into written legislation of civil rights and

freedoms

- criticisms: it did not protect equality rights and only applied to federally-

controlled matters, and could be changed at any time

- P.M. Pierre Trudeau’s gov’t gave us our Constitution Act, 1982 which included

the Charter of Rights and Freedoms, guaranteeing civil rights and freedoms at

every level of gov’t

- as constitutional law, the Charter can’t be easily changed (without agreement of

federal gov’t, 2/3 of the provinces with 50% of pop. = the amending formula)

- thus, the rights and freedoms listed are entrenched (or part of the Constitution)

- anyone whose charter rights have been infringed (violated) can take it to court

- thus, the Supreme Court has increased importance

- the charter includes the “reasonable limits clause” (section 1), which limits

some rights and freedoms for the larger good, “as can be demonstrably justified in

a free and democratic society”

- Charter cases often determine what matters are ultra vires (outside the authority

of the gov’t to legislate) and intra vires (within the scope of the gov’t to legislate)

- the Charter includes the famous “notwithstanding clause” (s. 33): this clause

lets provincial and territorial gov’ts enact legislation, good for 5 years then

renewable, in spite of the fact or “notwithstanding” that it may violate the Charter

(though certain rights cannot be overruled by invoking this clause)

- e.g. Quebec’s French-only law on public signs allowable even after being

challenged in the famous Ford v. Quebec, 1988 case

CLU 3MI Student Notes Created by Ms. Beattie Day 10:

The Canadian Charter of Rights and Freedoms (pp. 50-59)

- Section 1 of the Charter is the “reasonable limits clause” which allows your rights and freedoms to be limited if there is a justifiable reason to do so “in a free and democratic society” - Section 2: “Fundamental Freedoms”; divided into 4 areas:

- Freedom of Conscience and Religion (limits can be imposed as long as they don’t break fundamental beliefs of the religion) - Freedom of Thought, Belief, Opinion, and Expression (limited by Criminal Code e.g. hate laws and censorship laws re: obscenity) - Freedom of Peaceful Assembly and Freedom of Association (the Criminal Code prohibits unlawful assembly– 3 or more people creating a disturbance that causes fear– and riots–at least 12 people & violence under the Riot Act)

- Sections 3, 4, and 5: Democratic Rights - including the franchise (right to vote) which can be limited on some grounds

- Section 6: Mobility Rights (the right to move freely from province to province or territory) - the provinces have the right to impose restrictions on mobility for economic reasons

- Section 7-14: Legal Rights - e.g. proceedings in criminal matters - Section 15 and 18: Equality Rights

- equality rights can be restricted if the controls are fair e.g. driver’s licence at a certain age only; however equality between the sexes cannot be limited as per Section 28

- allows for affirmative action programs (to improve hiring of disadvantaged in society) - Sections 16-22: Official Languages of Canada - two official languages of French and English; gov’t services must be bilingual - Section 23: Minority Language Educational Rights

- applies only to Canada’s two official languages: the right to have children educated in same language as parents; minority language education is offered if there’s sufficient demand

- Section 25: Aboriginal Rights and Freedoms - the Charter cannot interfere with treaty rights or land claims of “Indians, Inuit and Metis”

Resolving Infringements of the Charter

- if a court decides that a case comes under the Charter & that a right has been infringed (trespassed on), it must then decide if the restriction is “reasonable” for the good of the group (under section 1 of the Charter) - a law that limits a Charter right or freedom is “reasonable” if: (1) it enforces an important gov’t objective, (2) the restriction on individual rights is minimal and (3) the law is clear and sets exact standards e.g. (guidelines on what’s ‘obscene’) Solutions, or Remedies, under the Charter

- there are 2 ways of enforcing the rights and freedoms guaranteed by the Charter: (1) section 52 of the Constitution Act, 1982, allows courts to strike down a law if it breaches the Charter, and courts can also “read down” the law, meaning the law remains generally acceptable, but not in this particular case; and (2) you can apply to the courts directly if one or more of your rights and freedoms has been violated


Day 11:

Human Rights Legislation & War Measures Act pp. (60-63)

- federal, provincial and territorial gov’ts have passed legislation to protect human

rights

- 1977 federal Canadian Human Rights Act came into effect - for matters under

federal control

- provinces have legislation like Ontario’s Human Rights Code which prohibits

discrimination in employment & renting an apt. & sexual harassment in workplace

- based on the Universal Declaration of Human Rights (UN 1948)

- human rights laws overrule any other prov. or territorial law

- constantly updated, expanded and adapted

- if your human rights are violated, you can file a complaint with a human rights

commission within 6 months of the incident

- “complainant” vs. “respondent”

- after an investigation, if the investigating officer cannot arrive at a solution,

conciliation takes place: both parties agree on a solution

- if conciliation fails, the gov’t will appoint a board of inquiry or tribunal to hear the

facts and impose a resolution

- each party can appeal the decision to the courts as a civil case

War Measures Act, Anti-Terrorism Act and Public Safety Act: read pp. 62-63

- these acts were legislated for public safety, but they curtail our rights and freedoms


Native Peoples & Human Rights

- the native peoples’ approach to human rights is not to work towards collective

rights, not individual rights and freedoms

- collective rights focus on land and the right to self-government and come from

having occupied Canada for thousands of years as distinct First Nations

- the Royal Proclamation of 1763 established a legal framework for treaty-making

between native peoples and Britain

- the Royal Proclamation remains an important legal document and it is recognized

in section 25 of the Charter in Canada’s Constitution

- the Indian Act, first passed in 1868, legalized “assimilation”: the effort to ‘absorb’

native people into European Canadian culture and created “reserves”

- it also banned traditional cultural practices, self-government and native systems of

justice

- in 1951 the first native lobby group was formed to press the gov’t to settle land

claims

- since 1982 the Assembly of First Nations (AFN) has represented 630 native

communities across Canada on matters like treaty rights, economic development,

health, housing, justice and social dev’t.

- landmark Supreme Court decisions have been made concerning land claims and

treaty rights of the Nisga’a, the Wet’suwet’en and Gitxsan of British Columbia

[Homework Assignment: read about these cases on pp. 77-80]

The Rights of the Poor

- poverty is a barrier to equal opportunity and achieving equality

- Canada has many social and economic programs to help reduce poverty, including old age

pension, medicare (free health care), and welfare

- some people want to eliminate poverty by giving all Canadians a guaranteed annual income

(GAI): a set amount of money all Canadian adults would receive to ensure everyone had enough

money for necessities: food, shelter and clothing

- others think the gov’t should provide low-income housing

- one lobby group, the Campaign Against Child Poverty, objects to drug testing and literacy

testing & training for welfare recipients, because they see it as an infringement of human rights

and human decency


Day 19:

Unit 2: Criminal Law

Chapter 4: Criminal Law and Criminal Offences

Introduction

- criminal law deals with offences committed against society; civil law deals with

offences committed against individuals

- criminal law helps keep order in society

- penalties help deter (prevent)people from committing crimes

- should criminal law also rehabilitate offenders? Some people think so

The Nature of Criminal Law

- Parliament decides what is a crime and regularly passes laws to change the

Criminal Code

- the Criminal Code reflects the values of society and its reform reflects a shift in

values & public pressure (e.g. pressure to decriminalize the use of marijuana)

- law makers, lobbyists, & the public debate issues like euthanasia (mercy killing),

gun control, abortion and pornography

- any reforms to the Criminal Code must take certain conditions, suggested by the

Law Commission of Canada:

1. the action must harm other people

2. the action must violate basic values of society

3. using the law to deal with the action must not violate other values

4. criminal law must significantly contribute to resolving the problem


Day 20/21:

The Power to Make Criminal Law

- jurisdiction over criminal law is with the federal Parliament (section 91, BNA Act)

- the provinces and municipalities can pass “quasi-criminal law”, like the Highway

Traffic Act, which if violated result in a fine

- the Criminal Code is the main source of criminal law in Canada

- it describes offences and punishments for crimes

- other statutes passed by Parliament include the Controlled Drugs and Substances

Act

- the judiciary (judges) influences criminal law with their interpretations of laws

when applying them to specific cases and in making precedent-setting decisions that

will be followed by other judges for similar cases

Types of Criminal Offences

1. Summary Conviction Offences

- minor crimes, maximum penalty $2000 and/or 6 mo. in jail

- more severe penalty for the Controlled Drugs and Substance Act crimes where

possession of a narcotic is a $2000 fine plus 1 year in jail

2. Indictable Offences

- more serious crimes

- Criminal Code sets maximum penalty like life imprisonment for homocide

- some indictable offences have a minimum penalty judges must impose, like

impaired driving ($600 fine to 5 years imprisonment)

3. Hybrid Offences

- where the Crown Attorney has the right to proceed summarily (as in a summary

offence with a lesser penalty) or proceed by indictment (as in indictable offence with

a greater penalty)

- theft is an example of a hybrid offence

The Elements of a Crime

- two conditions must exist at the same time for a crime to be a criminal offence:

actus reus (in Latin meaning “a wrongful deed” and mens rea (“a guilty mind”–the

accused must be shown to have intended to commit an offence)

- the Charter states in section 11(d) that a person is “to be presumed innocent until

proven guilty according to the law” which means the Crown Attorney must prove


both actus reus and mens rea both existed at the time of the crime & prove it beyond

a reasonable doubt

- if there is reasonable doubt in the mind of the judge and jury, the accused must be

acquitted and set free

- actus reus example: break and enter must include both breaking into a residence &

entering

- actus reus also describes the failure to do something, like providing your child with

the necessities of life

- mens rea exists if the offence is committed with (1) intent or knowledge or (2)

recklessness

- general intent can be inferred by carrying out an action

- specific intent exists when one crime leads to another (i.e. B&E leads to robbery)

- some people are incapable of forming the necessary intent due to mental illness, age

(children)or being drunk or ‘high’

- the reason for committing a crime is called “motive” but it doesn’t establish guilt

like intent does, only circumstantial evidence

- recklessness is the careless disregard for the possible results of an action and, if

proven, shows mens rea

- offences without mens rea are less serious than those found in the Criminal Code,

like speeding or polluting (regulatory offences: federal or provincial regulations

passed to protect the public)

- there are 2 types of regulatory offences where mens rea need not be proven: strict

liability offences and absolute liability offences

- to prove a strict liability offence, it is only necessary to prove the offence was

committed; the accused can put up a defence of due diligence meaning he or she took

care not to commit the offence or honestly believed in mistaken facts)

- an absolute liability offence has no defence and an offender is guilty if only actus

reus is proven; even if precautions were taken there is no due diligence defence;

therefore prison terms are unconstitutional

- a person can be found guilty of a criminal offence for attempt


- a conspiracy is an agreement between two or more people to commit a crime and is

a criminal offence whether or not they carry out the crime

Parties to an Offence

- under section 21 of the Criminal Code, a person who commits an offence, aids

(helps) a person to commit an offence, or abets (encourages) a person in committing

an offence is defined as a party to a crime

- therefore, aiding and abetting is a crime

- under section 21(2) of the Criminal Code, a person who plans an offence is just as

guilty as one who commits it

- an accessory after the fact is someone who helps a criminal escape detention or

capture, including providing him or her with food, clothing or shelter (with the

exception of married spouses)

- the defence of duress can be used if you are forced to aid and abet or be an

accessory, i.e. at gunpoint or otherwise threatened


Chapter 5: The Criminal Code

Day 22:

Introduction (pp. 126-127)

- the Cdn. Criminal Code is a federal statute that reflects social values, thus it

changes: some actions are removed to it, others added e.g. distribution of child

pornography on the Internet was recently declared criminal

- other social concerns of the 2000s: increasing penalties for maltreatment of animals,

establishing a sex offender registry; preying on children on-line

- about 80% of all criminal offences committed in a year are Criminal Code offences:

it identifies hundreds of acts considered criminal

- because it’s federal law, these offences are treated identically across Canada

Violent Crimes

- defined as offences that harm the body

- 13% of all Criminal Code offences are violent: homicide, assault, sexual offences,

abduction, and robbery

Homicide:

- killing another human being directly or indirectly is homicide and is a criminal

offence if it is “culpable” (deserving of blame) and includes murder, manslaughter,

and infanticide (baby-killing)

- non-culpable homicide is not criminal: caused by accident or self-defence

Read p. 128: Excerpts from the Criminal Code

Copy Figure 5-4: Types of Homicide p. 127


Day 23 (pp. 128-133):

Murder:

- murder is the most serious crime: intentional killing

- accused may be found guilty even without the intent to kill

- two classes of murder: first-degree and second-degree (s.231 C.C.): life

imprisonment for both

- first-degree murder occurs if one of the following exist:

• the murder is planned or deliberate

• the victim is a law enforcement agent

• death occurs while another crime is being committed

• the murder was caused during criminal harassment

• the murder was while using explosives as part of a criminal organization

• the murder was part of an indictable offence considered terrorist activity

- it is necessary to prove causation in order to convict a person with first-degree

murder

- second-degree murder is murder that is intentional, but doesn’t fit the above

categories

Manslaughter:

- manslaughter is causing the death of a human, directly or indirectly, by means of an

unlawful act

- is not murder, and requires only general intent

- the mens rea is that a reasonable person would recognize that the unlawful act could

harm or kill the victim e.g. dangerous driving

- sometimes murder charges result in manslaughter convictions, e.g. successful use of

defence of provocation (in the heat of passion, from an insult, resulting in loss of

control) or intoxication (too drunk or high to form intent); the killing must take place

during the loss of control


Infanticide:

- killing of a newborn by the mother; maximum penalty 5 years; caused by post-

partum depression or mental disturbance

Suicide:

- until 1972 was illegal to commit suicide

- still illegal to counsel suicide or help anyone commit suicide

- assisted suicide is a controversial issue; rejected by Supreme Court

Euthanasia:

- a.k.a. mercy killing: one person acts to end another’s life

- voluntary euthanasia (e.g. Sue Rodriguez) and involuntary (e.g. someone in coma)

- assisting suicide, voluntary euthanasia and involuntary euthanasia are treated as

homicide in the Criminal Code

- however, cases involving elderly, disabled spouses are often dealt with

compassionately by the courts

- those sound of mind have right to refuse treatment

- personal care directives can be signed in advance of being incapacitated directing

future treatment

- in absence of written instructions, the legal guardian or physician makes decisions

within the guidelines of medical ethics and human rights legislation


Day 24 (pp. 133-139):

Assault:

- 3 levels of assault in Criminal Code, classified as to severity, increasing penalties

- intent is a key element to all 3

- if the action is a result of carelessness or reflex, rather than intent, there is no assault

Level 1: Assault

• applying intentional force without consent, directly or indirectly

• attempting or threatening, by act or gesture, to apply force

• approaching or blocking way of another person, or begging, while openly

carrying a weapon, real or imitation

- harmful words are not an assault without a gesture

Level 2: Assault causing bodily harm

• committed by anyone who while committing an assault, carries, uses or

threatens to use a weapon, real or imitation, or causes bodily harm

• bodily harm is defined as anything that interferes with the victim’s health or

comfort in more than a fleeting way

Level 3: Aggravated Assault

- if a person wounds, maims, disfigures or endangers the life of the victim

- the mens rea required is only to commit bodily harm

Sexual Assault:

- the offences of rape and indecent assault were rewritten in the 1980s to emphasize

the violent, rather than sexual, nature of these crimes

- 3 levels of sexual assault, parallel to those of assault

Level 1: same as assault, but sexual in nature

Level 2: in committing a sexual assault (a) involves weapon, real or imitation (b)

threatens bodily harm to person other than complainant (c) bodily harm to

complainant (d) is a party to the offence with another

Level 3: aggravated sexual assault, (a) wounds, maims, disfigures or endangers life (b)

guilty of indictable offence with up to life imprisonment

- actus reus is the sexual touching

- mens rea is knowledge of no consent, recklessness or willful blindness


- consent is often an issue in trials (see Criminal Code excerpt p. 137)

- consent is not a defence if victim is under 14, unless the accused is less than 3 years

older

- the victim need not physically or verbally resist attacker (may be too scared to)

- intoxication cannot be used as a defence where it’s heavy

- spouses can be charged, any level

- the victim’s sexual reputation cannot be raised at trial, but evidence about sexual

activity can, as can personal records of the victim: medical, psychiatric, diaries, etc.

Answer p. 142 #11-13 in lieu of Days on sexual crimes, abduction and robbery


Chapter 6: Drug Use, Drinking and Driving

Day 29 (pp. 161-164):

The Controlled Drugs and Substances Act:

- enacted in 1997 (combined the old Narcotic Control Act and sections of the old

Foods and Drugs Act)

- the Act criminalizes possession of, and trafficking in, illegal & controlled drugs:

Schedule I lists the most dangerous drugs like heroin and cocaine

Schedule II lists cannabis (marijuana) and derivatives

Schedule III lists other dangerous drugs like LSD

Schedule IV lists controlled therapeutic drugs like barbiturates

- plus Schedule VII - cannabis resin and cannabis in amounts up to 3 kg

- plus Schedule VIII - cannabis resins up to 1 g and cannabis up to 30 g

- a person can be charged with possession for being in a group that is sharing a

“joint”, or owning the house where it’s being smoked

- intent must be shown, i.e. mens rea

- in 2001 it became legal for patients with terminal illnesses, chronic illnesses or

chronic pain to use marijuana, but they must carry an I.D. card

- marijuana possession was legal in Ontario for one year in 2001

(see R v. Parker, p. 165)


Day 30 (pp. 166-168):

The Controlled Drugs and Substances Act cont’d:

Prescription Shopping or Double Doctoring

- some people need controlled drugs for medical use

- others are addicted to these prescription drugs (e.g. Oxycontin = hillbilly heroin)

- it is illegal to engage in “prescription shopping or double doctoring”

- penalties increase from a fine of $2000 and/or 6 mo. with repeat offences

Offences Related to Trafficking

- according to the Act, to traffic is “to sell, administer, give, transfer, send or deliver

the substance”

- penalties vary, but trafficking Schedule I or II drugs can result in life imprisonment

- the Crown must prove trafficking with evidence like scales or cash (before 1986 it

was ‘reverse onus’ = accused had to prove innocence)

- several court cases have sent the message to police that they must not entrap drug

offenders (set them up to get caught)

- nor can police undertake random virtue testing (investigate an individual without

probable grounds


Day 31 (pp. 168-169):

The Controlled Drugs and Substances Act cont’d:

Importing and Exporting

- illegal, even to make arrangements to move drugs in or out of country

- penalties range from 1 year to life

Producing a Controlled Substance

- growing marijuana or producing a controlled substance is illegal unless authorized

to do so

- maximum penalty life for Schedule I drugs

Possession of Property Obtained by Certain Offences

- illegal to knowingly possess property obtained through the commission of a crime

Enterprise Crime and Laundering

- criminals ‘launder’ drug dealing money or property to hide the crime

- laundering is basically the movement of large amounts of money or transfer of

property gained through the drug trade

- since profits from the drug trade sometimes fund terrorism, since 2000 the

government has increased surveillance of money leaving the country requiring that

banks, lawyers, real-estate agencies, accountants and other financial institutions

report any cross-border transfers over $10,000 or other suspicious transfers

- one Day the there may be a court challenge of this requirement as it pertains to

lawyers (it contravenes lawyer-client confidentiality)

Search and Seizure

- police have the rights of search and seizure under the Act with a warrant from a

judge or without if the situation is urgent

- in public, the police must have reasonable grounds to search a person

Sentencing

- sentencing must include a prison term if a weapon or violence was present, if it

involved anyone under age 18 or was near a school, or if there’s a previous

conviction


Day 32 (pp. 174-183):

Drinking and Driving:

- reckless behaviour, penalized by law and criticized by society

- a provincial matter (highways, drivers and alcohol consumption)

Dangerous Operation of a Motor Vehicle

- applies to all motorized vehicles in all public places

- the Crown must establish fault

Failure to Stop at the Scene of an Accident

- the law requires you to stop at the scene when involved in an accident, give your

name and address to the other driver and offer assistance if needed

- drivers trying to escape the scene by being chased by police are committing the

offence of flight

Impaired Driving

- the main criminal cause of death in Canada; penalties have increased twice since

1985; four offences:

• driving while impaired by alcohol or drugs (of any sort imaginable)

• having care or control of a motor vehicle while impaired (vehicle not in motion)

• driving while the blood-alcohol level is over 80 mg in 100 ml of blood

• having care or control of a vehicle when the blood-alcohol level is over 80

- since the most effective deterrent is being caught, the police can use breath samples,

blood tests, balance and coordination tests : spot tests and roadside screening tests

- an offence to refuse; a suspect can be detained (taken in to police station or given a

sobriety test such as walking a straight line); legal counsel is advised; two breath

samples must be taken 15 minutes apart

- blood samples are taken when a person cannot give a breath sample; within 4 hours

- penalties include fines, prison terms, and driving prohibitions, licence suspensions

- in Ontario, a driver’s licence can be taken away for 12 hrs. with a breath level of 50

- “antilock” devices reduce re-arrest rates by 75%

- nothing over a 0 level is allowed for probationary drivers

- convictions can lead to demerit points & suspension & increased insurance rates


Chapter 7: Bringing the Accused to Trial

Day 39 (pp. 190-192):

Arrest:

- merely suspecting someone of a crime is insufficient to arrest them

- first, officers must determine a crime was committed

- second, they must have reasonable grounds to believe the suspect committed the

offence

- when ready to apprehend the suspect, an officer has 3 choices: issue an appearance

notice, arrest the suspect, or obtain a warrant for the arrest

Appearance Notice:

- can be issued for summary conviction offences, hybrid and less serious indictable

offences

- it’s a document which names the offence and gives a court date, time and place

- the officer will then swear an “information” before a judge or justice of the peace,

stating that on reasonable grounds the person named committed the offence

Arresting the Suspect:

- for more serious indictable offences the officer will arrest the suspect and take him

or her into custody

- officers must: 1. Identify themselves 2. Advise the accused that he/she is under

arrest 3. Inform of right to lawyer (s. 10(b) Charter) and 4. Inform of the charges

(s. 10(a) Charter)

- purpose of arrest is to lay charges, preserve evidence & prevent further offences

- after an arrest, the officer must swear an ‘information’ before a judge or j.of the p.

- if the accused resists arrest, the police can use force, even deadly force in some

circumstances (to prevent harm or death to others or prevent escape)

- see Taser p. 191

Warrant for Arrest:

- if the accused flees scene of crime, police can swear an ‘information’ and get a

‘summons’ ordering the accused to appear in court; delivered by sheriff or deputy

- when the accused is not likely to show, the judge can issue a warrant for arrest if

there’s reasonable grounds

Citizen Arrest: under certain circumstances (e.g. store detectives, private detectives

and other citizens like property owners) – see p. 193 The Criminal Code


Day 40 (pp. 193-194):

Duties of Police Officers

- in Canada, 3 levels of policing: federal, provincial and municipal

- national = RCMP

- provincial = OPP (Ont.), SQ (Que.), or RCMP in other provinces

- municipal = Hanover/West Grey police, or OPP/SQ, or RCMP where there’s no local

force

- police conduct is monitored; cops can be charged under the Criminal Code or sued under

Civil law

- s. 25 of the Criminal Code requires an officer to act “on reasonable grounds...and in using

as much force as is necessary for that purpose”

- police officers keep a written log of what they see and hear at the scene of a crime

Citizens’ Rights

Read pp. 194-196 & answer Review Your Understanding p. 196 #1-5

- legal rights of detained/arrested citizens in sections 7-11 of Charter

- being stopped for questioning is being detained; don’t have answer questions unless in a

specific situation (i.e. hwy. spot check)

- detention should quickly lead to arrest or being let go

- citizens detained illegally can sue or complain to police commission

- citizen can use reasonable force to resist illegal arrest or search

- once charged, a person has right to lawyer without delay, & to be advised of availability of

duty counsel (lawyer on duty at court) & right to legal aid

- until lawyer arrives, a person should only answer identity questions

- charged persons are then read their rights & must understand them (i.e. be sober/have

interpreter)

- they have right to telephone & to talk privately with attorneys

- can give up counsel & answer police questions

- police have right to search accused upon arrest (evidence & items useful to escape or

cause harm) & take away possessions

- searches can involve strip-search, skin-frisk, or body cavity search for drugs (by same sex

officer)

- police can then fingerprint and photograph the suspect, but accused does not have to

submit to a line-up, a polygraph test, or give blood, urine or breath samples (except for

impaired driving offences); police can take DNA with a warrant


Day 41 (pp. 196-202):

Search Laws

- police need search warrant issued by a court to search the accused’s home

- must have reasonable grounds or a reliable informer

- telewarrants by phone, fax or email are used today–very speedy

- search warrants can only be used between 6:00 a.m. and 9:00 p.m.

- seized items can be kept for 3 months or longer if needed as evidence

- police with a warrant can break into a home if refused entrance or no one is home

- can only search a person after arrest unless they suspect drugs, liquor or weapons

- police also need a warrant for electronic surveillance, usually for 60 Days, except in case

of terrorists (Anti-Terrorism Act allows it for up to a year)

- exception to search laws are for illegal drugs where police don’t need a warrant because of

need for surprise entry

- other exceptions include search of car for weapons or drugs or if they suspect something

illegal is being hidden

Release Procedures

- most people accused of crimes are not locked up (i.e. for summary & hybrid offences, or

indictable offences which carry a penalty of 5 years of less)

- a bail hearing may be required if there’s grounds to believe accused won’t show up in

court or might commit further offences

- for indictable offences with penalty of over 5 years, the accused must appear before a

judge for a bail hearing within 24 hours; the person posting bail money loses it if the

accused fails to show at court

- since 1985, less emphasis on bail for poor

- at bail hearings, the accused must show he or she will show up & isn’t a threat = reverse

onus

- if released, the accused must sign an undertaking (sets conditions)

- might also have to sign a recognizance (recognition of charge & promise to appear)

- if release denied, accused can appeal to higher court

- if denied bail hearing or kept in prison without arrest, accused can apply for a writ of

habeas corpus asking for release

- before release, accused are fingerprinted & photographed; if charges dropped you can ask

for them to be removed from police files, but the police don’t have to

- there’s a balance between protecting individual rights & protecting society


Day 43 (pp. 202-209):

Awaiting Trial

- accused and lawyer prepare defence

- can apply for legal aid if you cannot afford lawyer (a court appointed lawyer paid by the

gov’t)

- prior to a trial by jury, the Crown attorney and defence must meet to reveal all the

evidence that both sides have = disclosure (same may be requested for non-jury trials)

- collected evidence = exhibits = forensic science (like DNA matching)

- RCMP opened a DNA data bank in 2000

- 1995 the Criminal Code was amended allowing police to collect DNA evidence from

suspects, with a warrant

- when accused appears in court, the provincial judge will set a court date or put matter over

to a later date with an adjournment

- judge decides which court (3 possibilities):

1) provincial court (all summary and minor indictable offences like theft, fraud, mischief

all under $5000, keeping a bawdyhouse

2) for more serious indictable offences: accused can elect to be tried by provincial court

without a judge, or a higher court with a judge alone or a jury and a judge (i.e. for assault,

sexual assault and weapons offences)

3) for most serious indictable offences (murder, treason and piracy), trials will be in the

superior court of a province by a judge and jury (only 5% of crimes)

- at court, the accused enters a plea; 90% Cdns. plead guilty & are sentenced immediately or

remanded for up to 8 Days until judge decides sentence

- if plea is not guilty, judge sets trial date

- the preliminary hearing allows judge to decide if there’s sufficient evidence to proceed

with a trial at a higher court (only in case of not guilty plea to indictable offence)

- sometimes defendants skip preliminary hearing (if pleading guilty, wanting an early trial,

or wanting to avoid adverse publicity)

- defence attorneys may encourage plea bargaining = plea negotiation where accused pleads

guilty to a lesser charge (saving time, money & jury); if plea negotiation fails, the evidence

can be used against accuse

- plea negotiations are not in the Criminal Code and are often seen as compromising justice,

for example Karla Homolka’s “sweetheart deal” giving her a mere 12-yr sentence in return

for testimony against her husband, Paul Bernardo


Day 45 (pp. 215-224):

Chapter 8: Trial Procedures

-trial procedures in Canada based on the adversarial system: 2 opposing sides, the Crown

(rep. society) and the defence (rep. accused)

- onus on Crown to prove beyond a reasonable doubt, actus reus and mens rea

Court Room Organization and Beginning Motions

The Judge:

- judges referred to as “the Bench” or “the Court”; Supreme Court judges called “Justices”

- judges have full control of court room; can exclude the public or even the accused, what

evidence is allowed

- no cameras allowed

- some jurisdictions appoint justices of the peace who have less power than a judge but can

preside over preliminary hearings and traffic court, issue warrants

The Crown Prosecutor:

- the “burden of proof” is on the government’s lawyer, known as the crown prosecutor, and

he/she must present all available evidence even if it weakens the case

- judge can make prosecutor call witnesses whose testimony (declarations sworn under oath)

may damage Crown’s case

- prosecutors are influential: consult with police & decide when to lay charges or drop them

The Defence Counsel:

- defend clients to best of their ability, even where crime is hideous

The Court Clerk and Court Recorder:

- court clerk reads out charge, swears in witnesses, tags evidence, handles paperwork

- court recorder sits near witness box to record every word said in court, to produce

transcripts that can be read back later

The Sheriff:

-sheriff & deputies carry out court administration and trial preparation: make sure accused

appears, find prospective jurors, serve summons, carry out court orders like seizing &

selling property to settle damage claims

Other Court Officials: e.g. probation officers, non-profit organizations to help defendants

(e.g. John Howard Society & Elizabeth Fry Society) & organizations to help victims

Motions at the Beginning of the Trial:

- at beginning of a trial the prosecutor and defence present motions to the judge, like a stay

of proceedings (stop the trial until further action is taken or from happening)


Juries and Jury Selection

- expensive, use only for more serious offences

- jury reflects community values, conscience

Advantages of Trial by Jury:

- involves public; educates public; unburdens judges; bring fresh, diverse perspectives, can

reject bad laws

- defence only has to convince one juror to have reasonable doubt

- jury more likely to have empathy for the accused

Advantages of Trial by Judge:

- judges may be less prejudiced or less likely to have disgust cloud their judgment

- judges understand the law, legal technicalities

- judges less likely to be impressed by eloquence of lawyers

- trained to make a decision based on facts & the law; presents reasons for a decision while

a jury does not–giving possible grounds for an appeal

Jury Selection:

- empanelling: process of selecting 12 jurors, can take days

- 75-100 names randomly taken from list of potential jurors in the local area

- sheriff summons people; the more controversial a case, the more called; failure to show

can result in warrant or charges

- prospective jurors assemble in court, their names drawn from barrel, judge can exempt

anyone tied to case or having hardship

- judge can have any juror ‘stand aside’ with reasonable cause, to be called again if jurors

run out

- judge decides on questions prospective jurors can be asked; their socio-economic and

value systems are under scrutiny (e.g. age, gender, financial status, etc.)

- jurors must be Cdn. citizens, aged 18 to 69, speak either Fr. or Eng.

- many professions are exempted from jury duty (see p. 222)

The Challenges:

- the defence has first right of challenge

- 3 types of challenges can be used to eliminate jurors

1) Challenge of Jury List - if sheriff has made a mistake or been partial

2) Challenge for Cause - made on basis that jurors don’t meet the requirements or are partial

3) Peremptory Challenge - a set number allowed without reason, based on the charge: 20

challenges for 1st degree murder, high treason; 12 for penalty of 5+ years; 4 for 4- years


- in case of shortages, more are called or judge can order sheriff to take prospective jurors

off the street

Jury Duty:

- after selected, sworn in, seated in jury box, informed by judge of their duties

- jurors may or may not take days (depends on court)

- they must not discuss case with anyone else but co-jurors, follow media reports of case,

disclose any information

- most jurors go home at end of day; some are sequestered for the entire trial until verdict

rendered to protect them from outside influences

- all juries are sequestered when they retire to reach a verdict

- jurors receive token payment; increases with length of trial

- jurors can be discharged during trial for a valid reason; if jury falls below 10 jurors, a new

trial is ordered


Day 48 (pp. 225-234):

Presentation of Evidence

- first step in trial: arraignment (reading of the charge to the accused) from the indictment;

accused enters plea; if accused refuses, plea of not guilty entered

Crown Evidence:

- Crown rebuts the presumption of innocence (Charter right s. 11d)

- Crown gives opening statement, summarizing its case against the accused

- it then calls evidence: witness testimony & exhibits

- all evidence that is relevant, reliable and fair is admissible

- SCC has ruled that it’s not necessary to call the victim as a witness if relevant evidence

can be otherwise presented

- direct evidence is the testimony of eyewitnesses, but it is not reliable

- circumstantial evidence is indirect evidence & it alone is not enough to convict

though the SCC allowed it to convict in R. v. Truscott (1967)

- evidence must be proven, i.e. with fingerprints, DNA

- the examination-in-chief is the first questioning of a witness by the Crown: no leading

questions may be used

- next, the defence cross-examines the witness and may use leading questions

- the witness’s credibility (reliability) is a key factor

- judge and jury must decide who and what is most believable

- Crown may then re-examine the witness & judge may allow defence to re-cross-examine

- both sides try to cast doubt on the other side

- once Crown has called all its witnesses, it rests its case (judge may allow it to reopen case

if it serves justice)

Defence Evidence:

- before it calls any evidence, the defence may make a motion for a directed verdict & if the

judge agrees the Crown did not prove actus reus and mens rea, the jury will be instructed to

give a verdict of not guilty

- otherwise the case continues & the defence presents its case with the purpose of

establishing a reasonable doubt ; defence starts with summary then calls witnesses

- now defence not allowed leading questions but Crown may in cross-examination

- Crown may also respond to new issues raised by defence by giving evidence

- the defence then has the right to present surrebuttal (evidence to counter the Crown’s

rebuttal evidence)


Witnesses:

- before the trial, the Crown gives list of Crown witnesses to defence

- expert witnesses can be paid

- witnesses appear voluntarily, or may be served a subpeona (a court order)

- a witness who refuses to appear can be served with an arrest warrant & detained for

30 days, or even 90 days if judge justifies it

- failure to appear as a witness = guilty of contempt of court, fine or 90 days in jail

- as witnesses take the stand, they must take an oath on the Bible or make an

affirmation to tell the truth

- witnesses giving false evidence with intent to mislead = offence of perjury; or

contradictory evidence (both max. penalty 14 years)

- if witness found mentally incompetent = evidence declared inadmissable

- children can give unsworn evidence, evidence from behind a screen or videotaped

- an adverse witness is hostile to a particular position & can be contradicted

- the accused does not have to take the witness stand, though it might appear as an

indication of guilt, it’s not supposed to

- witness credibility is the key factor: it’s up to jury or judge to decide it and the

weight his or her evidence deserves

Rules of Evidence

- if admissibility of evidence is questioned during trial, the judge will order a voir

dire = a trial within a trial without the jury present

Self-Incrimination: s.13 Charter protects witnesses from self-incrimination whereby

their testimony can’t later be used against them in another court, as does the Canada

Evidence Act which states a witness can object to questions which self-incriminate;

however, police can act on the evidence to further investigate & then lay charges

Types of Evidence

Privileged Communications - e.g. communications between spouses, parishioners &

clergy, doctors & patients, unless nullified by the dominant party

Similar Fact Evidence - the accused has done the crime before; judge will hold a voir

dire to determine whether to admit similar fact evidence (it’s very damaging)

Hearsay Evidence - second hand information, if evidence is necessary & reliable


Opinion Evidence - expert evidence “outside the experience and knowledge of the

judge and jury”

Character Evidence - the Crown is restricted in prejudicial character evidence like

previous convictions of the accused that may influence the jury to convict, but can

enter it if the defence opens that avenue by introducing evidence to support the

accused’s credibility (believability); the Canadian Evidence Act allows witnesses to

be questioned about previous criminal convictions as well as the accused if he or she

chooses to testify

Photographs - may or may not be allowed by judge; not so if ‘inflammatory’

Polygraph Evidence - SCC ruled lie detector evidence is hearsay and not admissible

Electronic Devices and Video Surveillance - court rulings state that they must be

treated as a last resort and will only be admitted if Criminal Code procedures strictly

followed

(must be authorized by court or consented to by one of the parties); unauthorized

surveillance is allowable to prevent serious harm or bodily harm, like in spousal

abuse and stalking cases; video surveillance must respect a person’s privacy & search

warrants are necessary for private property but not in public places

Confessions - a confession is inadmissible if the accused was not given their Charter

right to legal counsel; such statements are either inculpatory (admission of guilt) or

exculpatory (a denial); judge can also reject a confession which is not voluntary

Illegally Obtained Evidence - is inadmissible if it would bring the “administration of

justice into disrepute” (Charter, s. 24)


Day 49 (pp. 235-246):

Defences

- defences used to prove innocence or guilt of lesser crime

- best defence is an alibi for the time & place the crime was committed

Self-Defence - Criminal Code allows you to defend yourself using force that is

necessary and reasonable, without striking or causing bodily harm; you can also

defend your property

Legal Duty - allows certain people to commit acts which otherwise would be

offences, like letting police speed to chase a suspect; s. 43 of the Criminal Code

allows parents, teachers or guardians to use “reasonable force” to correct a child

Excusable Conduct - includes provocation, and duress (threat of violence), and

honest mistake (e.g. for unintentional shoplifting)

Mental Disorder - accused can be remanded for up to 60 days to evaluate fitness to

stand trial; if unfit, the court can order treatment & an inquiry will be held every 2

years

Intoxication - can reduce a ruling from a specific intent offence to a general intent

offence, i.e. from murder to manslaughter, from aggravated assault to assault

Automatism - “unconscious, involuntary behaviour” like sleepwalking or convulsions;

if caused by a mental disease it’s “insane automatism” & treated as a mental disorder

(accused not criminally responsible)

Consent - is a valid defence in some cases, often used in sports by players accused of

assault

Entrapment - an abuse by the police whereby they encouraged or aided a person in

committing an offence

Mistake of Fact - ignorance of facts, not of the law, can be used as a defence e.g.

buying stolen goods

Double Jeopardy - means to be tried twice for the same offence; prohibited under

Charter s.11; one pleads autrefois acquit (already acquitted) or autrefois convict

(already convicted)


Reaching a Verdict

The Summation: presented by each side; defence goes first if it presented evidence,

otherwise the Crown leads

The Charge to the Jury: made by the judge, explains the law as it applies to the facts

of the case; often giving grounds for appeal

Jury Deliberation: jury leaves courtroom in custody of the sheriff; one juror selected

as foreperson; jury may return to courtroom for review of evidence or laws; jury

follows 2-step process: 1) discard evidence not believed and 2) determine weight

given to other evidence

- jury decides which law applies (e.g. murder or manslaughter)

- reasonable doubt = acquittal

- unanimous decision required for guilty verdict

- if jury can’t reach a verdict, they can be dismissed (“hung jury”) & a new jury will

try the case

- foreperson presents verdict to the court; both defence & prosecution can poll the

jury and each one must stand and say their verdict

- jury instructed never to disclose what was said in jury room, then discharged

- not guilty defendant can leave; guilty defendant will be sentenced then or later


Day 55 (pp. 252-257):

The Process and Goals of Sentencing

- sentences reflect social values & judges must consider many factors (see p. 252)

- sentencing occurs immediately after guilty verdict, or many weeks later

- judge may order a pre-sentence report describing offender’s situation

- defence and Crown can call witnesses to testify as to offender’s circumstances; convicted

person can make a statement

- judge must refer to penalties outlined in the Criminal Code and also heed the Charter’s

right not to be subjected to “cruel and unusual punishment”

- judges have considerable freedom to determine sentences, guided by precedents– previous

similar cases

- they also consider time in custody awaiting trial and/or sentencing & potential for

rehabilitation, harm done to community & remorse of the offender

- the victim may be considered: judge may ask for a victim impact statement

- the judge also considers the will of Parliament, which goes tougher these days on sexual

assaults, organized crime and long-term offenders (with criminal history and likely to

reoffend), but also wants fewer offenders jailed = conditional sentence (sentence of under 2

yrs. served in community)

- Parliament added statement to Criminal Code in 1995 giving direction to judges in

sentencing: to promote respect for law

- four goals of punishing offenders: deterrence (specific deterrence of the criminal and

general deterrence of the general public), rehabilitation (to reduce recidivism–return to

crime), retribution (deserved penalty or punishment), segregation (including incarceration)

- another goal gaining attention is reparations (repayment)

- sentences must also be proportional to the harm committed

- judges increase or decrease a sentence according to aggravating circumstances (increasing

the responsibility of the offender) and mitigating circumstances (lessening the responsibility

of the offender)

- Parliament defines aggravating circumstances as: offender’s bias, hatred toward victim,

abuse of spouse or child, abuse of position of authority or trust, & ties to organized crime

- the Criminal Code directs judges to: give similar sentences for similar offenders and

offences in similar circumstances; not impose unduly long consecutive sentences; not

deprive offenders of their liberty if other options exist; consider not jailing offenders,

especially Natives


Day 56 (pp. 257-264):

Sentencing an Offender

- because of the high cost of the prison system, diversion programs are increasing:

sentences that keep offenders out of prison

1. Absolute or Conditional Discharge - if sentence is under 14 yrs. & the crime carries no

minimum sentence, the offender may receive an absolute discharge with no conditions & no

recorded conviction, or a conditional discharge with conditions ordered by the judge in a

probation order; given in cases of first offences or where bad publicity is punishment itself

2. Suspended Sentence - is a ‘delayed’ sentence, never to be served if conditions met;

offender still has a record of conviction & could be on probation for up to 3 years, given

only when a sentence is under 2 years and there is no minimum

3. Conditional Sentence - may be ordered by judge if sentence is under 2 years and has no

minimum; to be served in the community; like a suspended sentence the offender must keep

the peace, be of good behaviour, report to court, abstain from drugs and alcohol and not

carry a weapon

4. Suspension of a Privilege - suspension of a social privilege, like a driver’s licence or

license to serve liquor; introduced to reduce unpaid fines & encourage respect for court

5. Peace Bond - a court order that requires person to keep the peace and be of good

behaviour for 12 months; someone usually applies to have a peace bond imposed on

someone they fear

6. Restitution or Compensation - a rather new penalty requiring offender to repay the

victim in money or work; lets victim communicate impact to offender

7. Community Service Order - requires offender to work for a local organization or on a

gov’t project; benefits community and offender whose time will be more wisely spent

8. Deportation - anyone who is not a Canadian citizen & who commits a serious offence

here can be deported to his/her country of origin; under the Extradition Act, Canadians can

be extradited to other countries if they are charged with a crime there

9. Fines - maximum fine of $2000 for summary convictions in the Criminal Code with

some exceptions: $5000 for assault; for Corporations $25,000 for summary offences; for

indictable offences with a penalty of 5 years or less, the offender may pay a fine instead; for

maximum penalty over 5 years, a fine may be in addition to the sentence, decided by judge;

offender has 14 days to pay; some provinces (but not Ont.) have a fine option program

where offender can earn credits by doing community service

Imprisonment - most summary convictions carry sentences up to 6 months; 18 months for

threats, assault with weapon, sexual assault & failure to comply with probation order;


maximum sentence for indictable offences can be 2 years to life; there’s a minimum penalty

for driving while impaired & failure to give breath sample

- judge can take time off sentence for pretrial custody, which counts as twice the time

because it is considered ‘dead’ time (no rehab or rec & doesn’t count towards parole)

- if prison sentence is 30 days or less = local detention centre (local jail)

- if sentence is more than 30 days but less than 2 years = provincial prison/reformatory

- if sentence is more than 2 years = federal penitentiary

- for convictions of 2 or more crimes, judge can impose concurrent or consecutive

sentences

- concurrent: usually for crimes that are similar and committed at same time

- consecutive: convictions for 2 or more crimes, organized crime & terrorism

- intermittent sentence = serving on weekends or at night, conditions in probation order

- the principle of totality guides sentencing: someone convicted of several violations of the

same offence or someone guilty of similar offence while on probation shouldn’t be given a

longer sentence

Sentencing Dangerous and Long-Term Offenders

- someone who commits a serious personal injury can be declared a dangerous offender:

little hope for being rehabilitated or pose a threat to society (see list of conditions p. 262)

- dangerous offender receives a psychiatric assessment and an indeterminate sentence

- the 1997 addition of the new category of long-term offender applies to sexual offenders

who cannot be proven to be dangerous offenders but are likely to reoffend; they receive an

extra sentence of 10 years community supervision

Capital Punishment (death penalty)

- hotly debated in Parliament and the media

- in 1962, the law on capital punishment was amended to distinguish between capital and

non-capital murder

- capital murder would require the death penalty: for murders that were planned &

deliberate, committed during violent crime, under contract, or of an on-duty police officer

or prison guard

- before 1962 a person could be sentenced to death by hanging but the sentence could be

commuted (changed to lesser penalty) by the federal Cabinet; after 1962 all death sentences were

commuted to life imprisonment which led to debate in Parliament and the 1967 suspension of

capital punishment for 5 years, extended for another 5 years in 1972

- in 1976, by a 6-vote margin, Parliament abolished the death penalty for Criminal Code offences; it

was debated again in 1984, but not returned; remains a controversial issue

Day 59 (pp. 283-291):


Chapter 10: The Youth Justice System

Ages of Criminal Responsibility

- Youth Criminal Justice Act passed in Feb. 2002, replaced the Young Offenders Act of

1984, which had replaced the Juvenile Delinquents Act of 1908

- applies to youths between ages 12 and 17; younger children thought not to be able to form

criminal intent and are dealt with by provincial laws like child welfare legislation

- objectives of the Youth Criminal Justice Act: see p. 285

- covers procedures for criminal law only, as per Criminal Code, not provincial laws for

driving offences or drinking offences

-expanded rehabilitation programs and stiffer penalties for violent youth crimes

- youth justice court judges must impose supervision in the community for youths who

serve time in custody, equal to half their sentence

- rehab programs to divert non-violent offenders from court

- as a deterrent to prevent youth violent crime and in response to fears about youth violence,

the Act lowered the age youth could be sentenced as adults from 16 to 14

Rights of Youths

- police do not have to arrest youths suspected of breaking the law e.g. shoplifting

- extrajudicial sanctions – formerly known as alternative measures programs, are aimed

at keeping first time offenders out of the courts and from getting criminal records; they

involve community service, counselling, treatment and apologising to victims (about 1 out

of 3 youth crimes are dealt with this way; charges are then stayed or dropped)

- if arrested and detained, Charter rights apply, plus right to have a parent or another adult

present during questioning

- a youth on bail will usually have conditions: curfew, contact with victims forbidden

- not released under their own recognizance, but into parents’ custody, or foster homes or

placed under house arrest if they pose a risk

- only youths charged with indictable offences can be fingerprinted and photographed; these

must be destroyed if the youth is acquitted or charges are dropped, but not the court records

which are available to victims, schools and police–they may be used later for adult bail

hearing

- parents encourage to be present during all steps of the legal process & give input before

sentencing

- parents may be ordered to attend hearings and if they fail to do so, be found in contempt of

court; parents can face criminal charges if they fail to supervise a child placed in their care

Day 60 (pp. 292-303):


Trial Procedures

- youth may be tried in a family court or a youth justice court

- in Ontario, youths aged 12 to 15 are tried in family court; 16 to 17 are tried in prov. court

- trials follow same rules of evidence as adult courts, but there’s no preliminary hearing and

a judge alone always conducts all trials (no jury trials)

- usually the name of any youth on trial, or a witness, or a victim cannot be published

- only names of 14- to 17-year-olds convicted of serious violent crimes can be named

- if youths considered dangerous are at large, their name & picture may be published

Transfer to Adult Court:

- for serious offences committed by youths at least 14 years old at time of crime, usually

when the Crown believes the crime deserves adult punishment

- a transfer hearing is held to decide on adult vs. youth court, before accused’s plea is heard

- a youth might request an adult trial if it’s thought a jury would be more sympathetic

- a defence lawyer might request adult court if others involved in the crime are adult, so the

same judge hears all the cases

Sentencing

- judge must decide a sentence that will help youth be rehabilitated and reintegrated into

society, the needs of the community & public safety, the concerns of the victim

- for serious offences, the judge may hold a sentencing hearing and hear a pre-sentence

report prepared by a probation officer or youth court worker (see list of info. on p. 297)

Sentences:

1. Absolute Discharges - found guilty, but no formal conviction entered

2. Fines - up to $1000 for summary offences

3. Compensation - payment of monetary compensation to the victim or to make up for

property damage or lost income of victim

4. Personal and Community Service - for youth who cannot afford to pay fines; personal

service to the victim, if agreed to by victim, or community service may be ordered; some

communities and police departments have rehabilitation programs for youth

5. Probation - a probation order limits a youth’s freedom, under supervision of a probation

officer for up to 2 years (see standard conditions, p. 300)

6. Custody - can be either open or secure (closed); open custody includes foster or group

homes and residential programs; secure custody means freedom is severely limited

Appeals and Reviews: youths and adults have similar rights of appeal; sentences are

reviewed and may be reduced due to good behaviour/rehabilitation

Day 66 (pp. 310-315)


Unit 3: Tort and Dispute Resolution

Chapter 11: Resolving Civil Disputes

Civil Law and Torts

- civil law is also know as private law: it regulates disputes between individuals, between parties,

such as business or government, and between individuals and parties

- while the main purpose of criminal is to punish offenders and protect society, the main purpose of

civil law is to compensate victims (though there is an element of punishment & deterrence)

- in civil cases, only the victim can take action against the other party for damages (compensation)

or some other civil remedy

- civil actions include claims arising from accidents, injuries done by one person to another’s body,

property or reputation, divorces, child custody and support claims, failure to pay for work done,

nonpayment of rent, and unpaid debts

- tort law is a major division of civil law: the word “tort” means “a wrong” that could either be

intentional or unintentional (negligent)

- some actions involve both a crime and a tort, e.g. crime: break and enter, tort: trespassing

- someone accused or convicted of impaired or dangerous driving might also be sued by a victim

for compensation, usually money, for injuries sustained or losses suffered

- the above two cases would be tried in different courts, with different judges

Civil Courts

- sometimes called “The People’s Court”, Small Claims Court settles money & property disputes,

before a judge without a jury, sometimes with no lawyers (lawyers banned from Quebec’s Small

Claims Courts)

- provinces issue free booklets with easy step-by-step procedures for filing a claim for such things

as unpaid rent, wages or bills, consumer complaints and debts, or minor accidents (the dollar limit

ranges from $3,000 to $10,000 depending on the province)

- all civil cases above small claims go to the provincial Supreme Court or to the Court of

Queen’s Bench and are argued by lawyers because of their complexity: e.g. serious accidents,

medical malpractice or injury, breach of contract, division of property after divorce

- cases at this level can be tried by a judge alone or by judge and jury of only six members (in most

provinces) who can reach a verdict by majority vote but jury cases are rare because of cost

- all provinces have Courts of Appeal that hear appeals from lower courts, heard by 3 or more

judges either by unanimous or majority judgments with each side giving its explanation

- the Federal Court of Canada’s Trial Division deals with civil cases involving the federal gov’t

and its employees, disputes over income tax, patents, copyrights and trademarks, while the

Appeals Division hears appeals from the Trial Division

- the Supreme Court of Canada only hears appeals from the Federal Court of Canada and

provincial Courts of Appeal that it believes are of national importance or if an issue or question of

law needs interpretation; it also hears appeals when there’s a split decision from a lower court; and

it can issue unanimous or split decisions

Day 61 (pp. 316-320; 321-327)


Trial Procedures

- a civil lawsuit involves two parties: the plaintiff, who is suing, & the defendant, who is being

sued

- if more than one party is harmed, then all injured parties should sue as plaintiffs in one action

- likewise, there may be a group of defendants

- the process of suing is called litigation, and the parties in the action are litigants

- in Ontario, minors can sue for up to $500, over that they need an adult litigation guardian

- the plaintiff must prove the case on the balance of probabilities (not beyond a reasonable doubt)

- the judge hears both sides and decides which is more credible & finds the defendant liable or not

liable

- one must decide if one has a cause of action before suing, that is, a valid reason for suing

- the litigant’s first step is to file a claim giving name, address, defendant’s name, address, the

amount of money claimed, a summary of the reasons; then to mail or deliver it to the court clerk,

pay a filing fee which is added to the claim; then decide on which court

- next, a summons is given to the plaintiff and delivered to the defendant, within 6 months of its

issue, or it must be renewed by a judge

- in Ontario, there’s a 15-year limitation period within which a claim must be filed

- the defendant can agree to pay the claim and court costs and thus end the dispute or prepare a

defence (reply) to refute the claim; this document must be done within 10 to 30 days of receiving

the summons or claim; a copy of the defence will be sent to the plaintiff by the court office

- the defendant can pay less than what has been claimed by the plaintiff, who can then accept that or

pursue the full amount in court: this is called payment into court

- the defendant may make a counterclaim, which is often done in a case of vehicle damage

- another option is a third party claim if the defendant thinks another party is partly to blame

- if the defendant does not reply to the claim within the required time period, a default judgment is

automatically made against him and the plaintiff is awarded the judgment

- at any point, either party can make an offer to settle the dispute and negotiate an out-of-court

settlement, saving time and money

- a pre-trial conference (settlement conference) is the last chance to settle and is a meeting with a

judge, though not a trial judge, or a court-appointed referee who encourages the parties to settle

- if the parties cannot reach an agreement during the pre-trial conference, a trial date will be set

- civil procedures in higher courts have additional procedures; a claim is known as a “statement of

claim” and a defence is known as a “statement of defence” and the plaintiff and defendant spend

years sending documents back and forth to define and narrow the issues and assist the judge in

understanding all the details; because of this, many cases tried in provincial superior court take four

to six years before reaching trial, at which point the discovery process begins

- the examination for discovery is a question and answer session for the litigants and their lawyers

undertaken to streamline the eventual trial, disclose all relevant documents; either party can

question the other under oath, with a court reporter transcribing statements that are available at trial

CLU 3MI Student Notes Created by Ms. Beattie - often the parties settle after discovery

- procedures in a civil trial are similar to those used in criminal trials: each party presents his or her

case by calling witnesses & testifying; the plaintiff goes first, then the defendant, then each party

summarizes his or her case and makes a final argument to the judge

- the judge’s decision will allow all, part or none of the claim

- in a trial by jury, the judge instructs the jurors on the law applicable to the facts of the case and

they weigh all the evidence & decide fault

The Judgment and Civil Remedies

- the judge delivers a judgment orally, or in higher courts takes time to review the evidence in

procedure known as reserving judgment

- tort actions most often result in the awarding one or more of the five types of damages:

1) general damages (for loss of income/future earnings, cost of specialized future care, damages

for pain and suffering and for loss of enjoyment of life)

2) special damages (for out-of-pocket expenses & lost wages before the trial due to injuries)

3) punitive damages (“exemplary damages” to punish the defendant for bad behaviour)

4) aggravated damages (similar to punitive damages, to punish outrageous, harmful behaviour)

5) nominal damages (indicate a moral victory & no harm done, with a small sum, like $1 or $100)

Other remedies:

1) injunctions (an injunction is an order for a person or party to do or not do something)

2) costs (usually the losing party has to pay the winning party’s legal fees and expenses; because

superior court costs are expensive, a contingency fee system exists everywhere in Canada except

Ontario; it’s where the lawyer is paid from the damages awarded if he or she wins the case and not

paid if the case is lost)

Enforcing a judgment: to enforce payment, plaintiffs have the following options:

1) garnishment (if a third party owes money to the losing defendant, a court order can compel that

person to pay the debt to the court; otherwise, the defendant’s wages and bank accounts can be the

subject of a garnishment order to pay the damages ordered)

2) seizing assets (a bailiff or sheriff takes legal possession of the debtor’s property and sells it a

public auction to settle the judgment)

3) examination of the debtor (if the debtor refuses to pay, the plaintiff can request an examination

of the debtor in court, regarding income, assets and money owed from others; an agreement is then

reached as to how much, if anything, the debtor can afford to pay, sometimes by installments)

- Alternative dispute resolution (ADR) is increasingly being used to save the time and cost of

civil litigation; it usually results in a win/win situation, with both parties gaining some benefit

- ADR uses negotiation, mediation and arbitration between parties to settle disputes

Day 70 (pp. 338-344)

Chapter 12: Negligence and Other Torts


Negligence and Intent

- modern tort law is largely the result of decisions made by judges over many years

- the tort of negligence is one of the most important areas of tort law and has 3

characteristics:

(1) the action is unintentional (2) it is unplanned (3) an injury results

- anyone who carelessly injures a person or a person’s property should compensate that

victim

- there are also intentional torts like battery (assault) or false imprisonment, trespassing,

causing a nuisance, and defaming a person’s reputation – all have intent or foreseeability

The Elements of Negligence

- there are 3 elements of negligence: (1) duty of care (2) breach of duty of care (3) harm or

loss

Duty of Care:

- the plaintiff must show that the defendant owed the plaintiff a duty of care (like shovelling

a sidewalk, driving carefully, keeping a restaurant safe)

Breach of Duty of Care:

- an expected standard of care is breached when the defendant fails to meet that of a

“reasonable person” (usually a child is not judged by the standards of an adult “reasonable

person”, however, when minors are involved in adult activities like driving a car or riding a

trail bike, they are expected to meet adult standards of care)

- a standard of care is breached if a reasonable person would have foreseen a possible injury

Causation:

- the plaintiff must also prove that the defendant’s negligence caused the plaintiff’s harm:

there must be a direct causal connection between the act and the claim; this is called

causation

Actual Harm or Loss:

- the plaintiff must also prove that real harm occurred; without loss or injury, there is no

case

The Burden of Proof:

- the burden of proof is on the plaintiff; if the plaintiff fails to prove any of the required

negligence elements, the action fails


Day 71 (pp. 345-347)

Defences for Negligence

- the best defences when sued for negligence is that negligence did not exist or that

the defendant did not owe the plaintiff any duty of care

- even a plaintiff who is able to prove that negligence exists may not be able to

recover all that is claimed if he or she has also been negligent in the incident or has

assumed a risk voluntarily

Contributory Negligence:

- if both the plaintiff and the defendant are negligent to some degree, damages are

divided between them, according to the principle of contributory negligence (e.g.

not wearing a seat belt when another person crashes into you)

Voluntary Assumption of Risk:

- for this defence to succeed, the defendant must prove that the plaintiff clearly knew

the risk of his or her actions and made a choice to assume that risk (e.g. if a fan in the

stands is hit by a baseball he or she will likely not succeed in a legal action, or if the

plaintiff knowingly got in a vehicle with a drunk driver = reduced damages)

Inevitable Accident:

- an inevitable accident is one that is unavoidable, where taking precautions cannot

help, like being struck by lightning and losing control of a car


Day 71 ( pp. 348-357)

Special Types of Negligence

- the most common negligence suits involve occupiers’ liability, motor vehicle negligence,

and professional negligence

1) Occupiers’ Liability:

- an occupier is any person who has control and possession of a property and owes a duty

of care to make the property safe for people (e.g. occupiers must keep sidewalks and steps

clear of snow and ice; storeowners must keep floors dry and unobstructed so no one will fall

and be injured)

- the occupiers’ liability extends to three classes of persons: invitees, licensees and

trespassers

- an invitee is any person on the property for a purpose other than a social visit and is due

the highest standard of care (invitees include students in school, repair, service and delivery

persons)

- a licensee is a person who enters a property with the implied permission of the occupier,

like a friend asked for dinner–a social guest; since no economic benefit is expected, a lesser

standard of care is required than for invitees

- a trespasser is a person who enters a property without permission or legal right, like a

burglar, a snowmobiler or a wandering child; occupiers cannot set traps for trespassers and,

in fact, owe them a duty of care

- trespassing children have special rights because of their age, and occupiers must take

precautions not to allure children with play equipment like a jungle gym or pool, which are

considered allurements

- some provinces like Ontario have passed Occupiers’ Liability Acts which provide for a

common duty of care eliminating the old common law differences between invitees and

licensees

Commercial and Social Host Invitees:

- an emerging area of tort law involves the possible liability of commercial and social hosts

who can be sued if someone is hurt or killed after being struck by a drunk driver from their

functions

- hosts must take steps to prevent drunken guests from driving


2) Motor Vehicle Negligence:

- violating any part of the Highway Traffic Act or Motor Vehicle Act can mean driver

negligence

- while the burden of proof usually rests with the plaintiff in a negligence action, it shifts to the

defendant in some motor vehicle cases once the plaintiff has proven that he or she was struck

by the other vehicle: the defendant must prove the injury did not result from his or her

negligence

- if there’s evidence that both drivers are responsible for an accident to some extent, liability

will be split between them (contributory negligence)

Liability for Passengers:

- the driver of a vehicle is liable for the safety of passengers

- drivers often use the defence of voluntary assumption of risk by an injured passenger if the

plaintiff knew of the dangers of this driver (like habitually speeding or impaired driving); in

this case, the plaintiff will receive reduced damages

Seat Belts and Negligence:

- damages are generally reduced by 15 to 40 percent for those failing to wear a seat belt, due to

contributory negligence, even if the accident is totally the other driver’s fault

- drivers have a special duty of care to make sure passengers are buckled up

Vicarious Liability:

- in tort law, holding a blameless person responsible for the misconduct of another is known as

the principle of vicarious (substitute) liability (e.g. lending one’s vehicle to an irresponsible

driver)

- employers can also be liable for torts committed by their employees during working hours

because they carry liability insurance to compensate victims for injury or loss and because

society believes that companies that make a profit should be responsible for employees’ actions

3) Professional Negligence

- tort law includes peoples’ expectations for the services provided by professionals, like doctors,

dentists, engineers, architects, accountants and lawyers, experts who must exercise a certain

standard of care

Medical Negligence:

- medical negligence is the largest body of case law: a doctor’s duty of care to the patient

- if a doctor fails to meet a reasonable standard of care, and harm is done, it is medical negligence

- if the patient lacks sufficient information to give informed consent, the doctor may be liable for negligence,

even assault and medical battery


Day 73 (pp. 358- 364; pp. 364-368)

Trespass to Persons and Land

- the main intentional torts are trespass to another person (assault and battery,

false imprisonment), trespass to land, and nuisance

Assault and Battery:

- assault as defined in tort law differs from assault as defined in the Criminal

Code: in tort law assault occurs when the victim has reason to believe or fear

that bodily harm may occur; any threat of danger or violence is an offence;

the essential element is the victim’s fear, no actual contact is necessary

- examples of assault: someone swings a fist & misses; points a gun,

threatens, unleashes a barking dog, or a group of people swarming another–

the victim may be awarded damages for fear & dread

- assault can occur without battery, which is the follow through of assault &

is the most common form of trespass to another person: unlawful and

intentional touching without consent

- battery doesn’t necessarily include injury, it could just be offensive and

emotionally harmful, like kissing and hugging a person against their will

- the damages awarded to the victim compensated for harm or loss, and

punitive damages if the assault was extremely vicious or committed without

reason

False Imprisonment:

- involves confining or restraining a person without consent in a specific

area

- the word “false” means “wrongful” or “unauthorized”; “imprisonment”

refers to a particular area, not a necessarily a prison; “wrongful

confinement” is perhaps a better term for this term

- it involves total restriction, through physical restraint, barriers or legal

authority and the plaintiff must have attempted every reasonable means of

escape before launching a lawsuit

- a common example is an innocent person being nabbed by store security

for theft


Trespass to Land:

- trespass is the act of entering and crossing another person’s land without

permission or legal authority; no specific damage needs to occur

- remaining on land when asked to leave is another form of trespass, or

throwing an object on another’s land and not removing it, cutting down a

tree and letting it fall & stay on a neighbour’s land is also a trespass, as is

tunnelling into someone’s property or stringing wires or lines over it

- however, statutes exist to allow planes to fly over

Nuisance:

- a nuisance involves one person’s unreasonable use of land which interferes

with the enjoyment and use of adjoining land by other persons or the

community, inconveniencing them; the harm must be serious & continue for

some time, not be occasional & minor; the remedy is usually an injunction

- nuisance has been used to try to prevent or to obtain damages for excessive

odours, noise, pollution from factories and malfunctioning of sewage

systems, picketers blocking entrances

Defences for Trespass

- the defendant has a number of defences that might explain the trespass, the

most common being consent, self-defence, defence of others and property;

legal authority, and necessity

- a defendant may use more than one defence in the same lawsuit

Consent:

- this defence is the most common in cases of trespass to the person,

especially battery and must be established by the defendant by showing the

plaintiff willingly consented to the action; e.g. a group of teenagers willingly

playing a neighbourhood game of football and one breaks his arm during a

tackle: the game was voluntary and the injury was not done with anger; it’s

similar to the defence for negligence of voluntary assumption of risk

- deliberate harm using excessive force is another issue

- doctors can give emergency treatment to unconscious patients without

consent


Self-Defence:

- is a valid defence as long as the force used is not excessive and it is

reasonable and necessary in the circumstances to prevent personal injury

- the defendant has the burden of proof

- provocation is not a defence for an intentional tort but may reduce the

damages the defendant must pay

Defence of Others:

- a third party can come to the aid of a person in immediate danger; same

principles apply as in self-defence

Defence of Property:

- property owners may use reasonable force to eject trespassers after first

asking the intruder to leave; if the request is ignored, then force may be used

- if, however, the intruder made a forcible entry into the property, no request

to leave is necessary before force is used by the property owner

- it is illegal to set a deadly or dangerous trap to harm trespassers

Legal Authority:

- in certain limited situations, law enforcement officers have the legal

authority to do what could otherwise result in legal actions for assault and

battery or false imprisonment, usually in the course of a valid arrest

- a search warrant can be used as a defence for trespassing

- by law, certain industries and businesses can emit a reasonable amount of

smoke, noise and effluent without being liable; however, if a reasonable

level is exceeded, a nuisance action may result

Necessity:

- a defendant may be excused from trespass onto land if the action is strictly

necessary;

e.g. boaters seeking safety from a sudden storm or someone reclaiming

goods from another’s property


Day 74 (pp. 368-371)

Defamation of Character and Its Defences

- defamation is an unjustified or untrue attack on a person’s reputation; it

may be intentional or unintentional, and it must lower a person’s reputation,

cause people to avoid him or her, or expose a person to hatred, contempt or

ridicule

- a damaged reputation may result in difficulty finding or keeping jobs, or

strained friendships

- a person whose reputation has been defamed can sue for damages if she or

he can prove the defendant’s statements have done injury

- only nominal damages are awarded

- defamation may take the form of slander or libel, whose differences have

been abolished by legislation in several provinces, but not Ontario

Slander:

- slander is defamation through spoken words, sounds, physical gestures or

facial expressions and it may be intentional or unintentionally overhead by a

third party

Libel:

- libel is defamation in a more permanent visual or audible form than slander,

such as radio, TV, publications, cartoons, photographs, tape recordings,

films or videotapes

- may be intentional, or unintentional if a third party comes across a private

journal

- newspapers publish the names and addresses of persons arrested for

criminal offences so that persons of the same name are not defamed

- damage awards may be reduced if the defendant makes an apology or

prints a correction in another issue of the newspaper


Defences for Defamation

- the most common defences for defamation of character are the truth,

absolute and qualified privilege, and fair comment

Truth:

- the law protects person from false statements only, so the best defence is to

prove the statements made are the truth

- repeating remarks you believe to be true is not a defence, thus, news

reporters have to be very careful in checking facts

Absolute Privilege:

- members of Parliament, members of provincial legislatures and all persons

participating in courts, coroners’ inquests, and judicial hearings are given

absolute privilege, without fear of being sued, as long as the statements are

made in the confines of where the proceedings are taking place

Qualified Privilege:

- people who are required to express their opinions during the course of their

work are protected by qualified privilege

- this defence will succeed only if the defendant can prove the statements

were made in good faith, without malice

- examples: employers and teachers asked to write letters of reference;

teachers, doctors and nurses who have a legal duty to report child abuse;

government officials taking part in local municipal council meetings; and

credit agencies asked to give a credit rating

Fair Comment:

- media critics who review plays, theatre performances, sports events, and

concerts are considered to have the right to make fair comment, the right to

criticize openly and honestly, but not with malice

- the defendant is liable if the comments are shown to be malicious or untrue


Day 77 (p. 372-374)

The Need for Insurance

- most people purchase liability insurance to protect against the possibility of

legal actions

Motor Vehicle Liability Insurance:

- lawyers specializing in civil lawsuits spend more time dealing with

negligence actions arising from car accidents than from any other type of

tort and these cases can take years to settle

- a third party, not directly involved in the accident, can also claim damages

on the grounds of mental anguish and loss of companionship or a loved one

- all car owners are required by law to purchase motor vehicle liability

insurance

- the insurance company pays any claims for damages arising from an

accident, up to a certain maximum; this type of insurance is called third-

party liability insurance because three parties are involved in making the

claim: the person who caused the accident, that person’s insurance company,

and the victim who claims damages

- the minimum amount of insurance coverage required by the law in all

provinces is $200,000, though most drivers purchase $1 million or more

because damage awards can be quite high

- provincial governments and/or insurance companies have special funds to

pay out claims against drivers who illegally do not have motor vehicle

insurance coverage

- some provinces, like Ontario, have no-fault insurance, to more speedily

settle claims and get the money to the victim faster

- a person who suffers loss beyond that covered by a no-fault insurance can

still bring a tort action for damages, but the no-fault insurance awarded will

be deducted from the damages


Other Liability Insurance

- any type of liability insurance has an upper dollar limit for insurance

coverage

- if a court awards greater than the maximum, then the person must pay the

difference

- this may require the sale of possessions or the garnishment of wages; often

the damages can never be fully paid because the sum is too large to repay in

a person’s lifetime

- when all forms of damages are considered, awards in civil actions can

involve millions of dollars: personal injury accidents cost Canadians at least

$3.5 billion a year in medical treatment and future care, lost wages and pain

& suffering

- the number of medical malpractice suits and size of the settlements is

increasing in Canada

- most doctors pay fees to the Canadian Medical Protective Association in

case they are sued for medical malpractice

- many lawyers also buy malpractice insurance from insurance companies to

protect themselves against civil actions from dissatisfied clients

- retail outlets, shopping centres, schools, churches, clubs, municipalities and

community organizations purchase insurance to protect themselves against

lawsuits arising due to injuries of persons on their property; as do

homeowners and renters in case of injuries to visitors

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