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LAW 602- Midterm Exam Guide - Comprehensive Notes for the exam ( 24 pages long!)


Department
Law and Business
Course Code
LAW 602
Professor
Eric Libman
Study Guide
Midterm

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Ryerson
LAW 602
MIDTERM EXAM
STUDY GUIDE

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LAW602 – Lecture 6
Proof & Prosecution: Burden of Proof
Criminal Case (e.g. Fraud):
oPresumption of innocence
oCrown bears burden of proof beyond reasonable doubt; there’s no burden on the
accused to prove innocence, and is entitled to acquittal/finding of not guilty where he
raises a reasonable doubt
oBurden of proof beyond a reasonable doubt applies to all elements of offence -> mens
rea element (i.e. mental element/guilty mind/fault) and actus reus (i.e. physical
elements/prohibited act or consequence)
Elements of Fraud offence is to be proven beyond a reasonable doubt by the Crown:
oActus Reus (physical act)
1. The prohibited act, be it an act of deceit, falsehood, or some other fraudulent
means, and
2. Deprivation caused by the prohibited act, which may consist in actual loss or the
placing of the victim’s pecuniary interests at risk
oMens Rea (mental requirement)
1. Subjective knowledge of the prohibited act, and
2. Subjective knowledge that the prohibited act could have as a consequence the
deprivation of another (which deprivation may consist in knowledge that the
victim’s pecuniary interests are put at risk)
Burden of Proof: Regulatory Offences
Regulatory Offences (e.g. misleading advertising; failure to comply with demand):
oPresumption of innocence
oCrown bears the burden of proof of guilt
oElements of the offence are to be proven depending on the category of regulatory
offence in question (mens rea, strict liability, absolute liability)
Regulatory Offences categories:
oMens Rea -> the Crown must prove beyond a reasonable doubt both the prohibited act
(actus reus), and mens rea (guilty mind), as if it is a prosecution of a criminal offence,
but these remain regulatory offences in nature
oStrict Liability -> the Crown much prove the prohibited act beyond a reasonable doubt,
but there is no fault element involved; onus then shifts to the defendant to prove lack of
fault by due diligence or reasonable mistaken belief of fact, on a civil standard of proof
(i.e. on a balance of probabilities/preponderance of doubt) in which case the defendant
is entitled to acquittal
Because there’s no fault element involved, the defendant is not able to put forth the
defence of no intention; he is however able to put forth certain common law
defences, such as necessity
oAbsolute Liability -> the Crown must prove the prohibited act beyond a reasonable
doubt, no defence of lack of fault may be raised, although there may be other defences
(e.g. necessity, officially induced error of law, de minimus)
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Regulatory offences are presumed to be strict liability
Burden of proof for strict liability:
oDoing the prohibited act prima facie imports the offence, leaving it open to the accused
to avoid liability by proving that he took all reasonable care
oWhile prosecution must prove beyond a reasonable doubt that the defendant
committed the prohibited act, the defendant must only establish on a balance of
probabilities that he has the defence of reasonable care
oIt is not enough just to raise a reasonable doubt when asserting the due diligence
defence -> the burden of raising a reasonable doubt is not as great as that of
establishing the due diligence defence
oWhere the defendant relies on the defence of due diligence, onus of proof shifts to the
defendant to establish reasonable care on a balance of probabilities, the issue is not
correctly decided by giving the accused the benefit of the doubt
Burden of Proof: Misleading Advertising & Failure to Comply with Demand
Misleading Advertising:
oThe Crown must prove beyond a reasonable doubt the prohibited act (e.g. making an
advertisement that is misleading)
oThe defence has onus to establish on a balance of probabilities due diligence or
reasonable care, or reasonable mistaken belief of fact
oCALLUS|Proof of Prohibited Act established by:
Copies of the emails with evidence of misleading their customers
Call someone a number of individuals (victims) who received the email to
determine whether or not the ad is legitimate
Failure to Comply with Demand under Income Tax Act:
oThe Crown must prove beyond a reasonable doubt the prohibited act (e.g. the demand
made for Income Tax Act information, and the refusal by defendant to furnish the
requested information)
oDefence has onus to establish on a balance of probabilities due diligence or reasonable
care, or reasonable mistaken belief of fact
oCALLUS|Proof of Prohibited Act established by:
Crown would prove that letters were sent out to CALLUS telling them to comply with
the Act, and showing that those letters haven’t been replied to
Shows that the defendant was not compliant with the act, that they were
notified of their offence, and that they still continued to ignore the request
Operation of Defence
Defence of due diligence frequently consists of showing honest and reasonable belief in a
certain state of facts, but in principle, the defence is that all reasonable care was taken
Defence of reasonable care is a pre-eminent defence to public welfare offences
Due diligence means taking reasonable care in the circumstances – lack of due diligence is
akin to negligence, conduct which falls short of reasonable standard of care
find more resources at oneclass.com
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