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Final Crim Review.docx

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CRIM 135
Graeme Bowbrick

Section 24: - Section 24 is remedy clause - 24 (1) allows for court injunctions - Injunction is court order - 24 (2) allows the government to violate rights if it would not disrepute the government - Money is rarely given as a form of compensation under 24 (1) - Violation of rights may result in exclusion of evidence - Honest mistakes are allowed, however bad faith (violating charter rights intentionally) is an exclusion - Never violate the right to counsel Section 32: - Application of charter - Anyone that has the authority is part of the legislature, they are all considered to be government, so charter applies - Universities are not part of government -> low degree of control - Colleges are part of government -> more degree of control than university Section 33: - Referred to as the notwithstanding clause - Allows government to override certain charter rights - Only applies to section 2, 7 – 15 - Rarely used, since people will be very unlikely to vote for the government again after violation of rights - Extremely politically harmful - Cannot override democratic rights Amending Formula: - Section 38 contains the general amending formula - Federal government + two thirds of provinces that represent at least 50% of the population is required to amend the constitution - At least 7 provinces need to agree Unanimous Consent Amendments: - Section 41 requires federal government and all the provinces to agree - Applies to only few institutions Aboriginal Rights: - Set out in part 2 in the constitution act - Section 35 - Royal proclamation of 1763 decreed that colonists could not take over aboriginal lands until approval is gained by the king -> meant signing a treaty with the aboriginals - Gave aboriginals treaty rights - Charter elevates the treaty rights to the constitutional status - No treaties signed for 97% of BC - If aboriginal don’t have treaty rights, they have aboriginal rights - Treaties limit their aboriginal rights - If they didn’t sign treaties, their rights are recognized and affirmed - In areas that are sparsely populated, the deal is that they receive more land than cash - In urban areas, the deal is more cash Section 52: - Referred to as supremacy clause - Constitution is supreme law - Any law that violates constitution is of no force - As remedy, can ask judge to declare law to have no force or effect (strike down) - Judges can strike down laws made by legislature as long as those laws violate the constitution Structure of Canada’s Court System: - Provincial court of BC is provincial inferior court (lowest level) - Every province has their own provincial court system - Provincial court is trial court - Lowest level of court with three broad divisions, criminal court, small claims court, family and youth court - Provincially responsible under section 92 (14) - Criminal jurisdiction is set out in criminal code - Specifies in criminal code where the crime will be tried - All summary conviction offences are tried in the provincial court - Limited number of indictable offences take place in provincial court - Summary hearings also take place in provincial court - Summary hearings also take place in provincial court - Before any indictable offence, there is a preliminary hearing -> judge sees if there is enough evidence to go to trial (happens in provincial court, if judge is satisfied, the case goes to supreme court) - Deals with approximately 95% of crimes in BC - Vast majority of crimes committed are summary offences Provincial Court: - Vast majority of criminal trials happen in this court - Small claims divisions is civil jurisdiction (people sue each other) - If claim is less than $25000, claim in provincial court - If claim is more than $25000, claim in supreme court - Family division deals with relationship breakdowns (child custody, child support, spousal support) - Does not deal with divorce orders, no property issues (supreme court) - Can deal with child protection - Young offender (age 12 to 17) hearing happens in provincial court Supreme Court: - Provincial superior court - Trial court - Hears appeals from provincial court - Has very broad jurisdiction - Inherent jurisdiction: its jurisdiction is inherent -> exists as a court, thus has control over a large amount of matters (any issue in BC can be heard by supreme court unless it is specifically assigned to another court) - Certain cases which only go to supreme court - No jury trial in provincial court, jury trial in supreme - Supreme court has authority for divorce, slandering, etc Appeal Court of BC: - Appellant court - Responsible government is same as supreme court, established by provincial court, judges appointed by judges - Hears appeals from BC supreme court - Hears reference cases (very rare) Federal Court of Canada: - Federal superior court - Trial court - Responsible government: entirely federal, section 101 - Jurisdiction is limited to certain specified areas of federal jurisdiction (immigration cases, intellectual property law) - Pales in comparison to BC supreme court and other supreme courts Federal Court of Appeal: - Federal superior court - Appeal court - Hears appeals from federal court of Canada, and other federal courts (tax courts) Supreme Court of Canada: - Entirely federal, all under section 101 - Jurisdiction: hears appeals from courts of appeals under it (11 courts of appeal) - Also hears reference cases - If supreme courts hears 80 to 100 appeals a year, and hears 1 reference case once every 5 years - Reference case is not an appeal, not regular court case nd - Appeal is legal conflict, and gets appealed, when gets to supreme court, is I on its 2 appeal or 3 appeal - References do not involve conflict with parties, government takes legal issue and refers them in writing and asks court to give opinion - Decision of supreme court is an advisory opinion on reference cases - Court issues opinion, not a decision, not a precedent (no stare decisis), only supreme court can do reference cases for federal government, BC court of appeal does reference for BC government - Advisory opinion has persuasive authority - References look like real cases, have parties that argue, but end decision is an opinion - References are rarely done - References have the potential to be abused by governments - Final court of appeal of Canada since 1949 - Before 1949, supreme court of Canada was 2 last stop, the judicial privy council was last appeal court in London - 9 justices in supreme court - 3 from Quebec (legal requirement), 3 from Ontario (tradition), 1 from maritime (tradition), 1 from prairie (tradition), 1 from BC (tradition) - Quebec doesn’t use common law, it uses private law -> Quebec civil code - Justices trained in the civil code system - Justices are forced to retire at 75 - US doesn’t have mandatory retirement - BC justice is chief justice in supreme court at the moment - Appeal courts always have more than 1 judge sitting and deciding a case (panel of judges) - Typical panel of judges at supreme court is 9 - Not a given that you can appeal to supreme court, need a leave of the court (permission) - Indictable offences (where decision of court below was split) go to supreme court of Canada by right, no leave is required - In appeal court of BC, split is 2 - 1 - Any other case would require leave to get to supreme court - 1/3 of all cases they hear are automatic - Apply public important test to decide which cases to grant leave Trial Courts: - Decision maker is either judge alone or judge and jury - Provincial court of BC is always one judge - Deal with two basic types of questions; questions of fact and questions of law - Question of fact is about what happened, while question of law is about how the law is being interpreted and applied - Real evidence (tangible, physical) or testimonial evidence or documentary evidence (evidence in documentary form; video, writing on paper, photo) - Parties in trial are different in civil and criminal - In criminal, it is crown versus accused - Crown always start off making the argument, the accused/defendant responds - In civil, it is plaintiff versus defendant - Plaintiff initiates the case (makes the claim), defendant defends themselves against the claim Appeal Courts: - Do not involve only one judge - Always be a number of judges, (in supreme court panel of 9, in appeal court panel of 3) - Always an odd number, so no tie - Deals with only questions of law, do not deal with questions of fact - Reviews decisions of lower courts for legal errors - Only argument available is that the lower court judge or judges made a legal error - Parties to appeal is appellant versus respondent - Appellant is the person making the appeal, respondent is responding to the appeal - Accused is the appellant, crown is respondent if accused feels judge made error and vice versa - Can have a split decision as majority descent - When judges do appeals, they can concur with other judges - Can have 1 judge write and 8 others concurring, if it is a 9-0 unanimous decision - One right of appeal, can appeal to BC appeal court as of right - Beyond that one right of appeal, you have to get leave with the exception being indictable offences that have a split decision Court System: - Adversarial system - When there is legal disagreement, it is a fight or confrontation with judge being neutral and decide which side is right - Ideas if allow the confrontation to occur, truth will emerge - Judges role is neutral, cannot appear to be taking sides or help out a side - Contrast this with non-adversarial systems (inquisitorial systems, used in many other democratic countries -> judges do not play neutral role, they can act like prosecutors; involved in investigations, law enforcement) - Weakness of adversarial system is that people are not equal when they get into the legal fight - The good lawyer versus bad lawyer is not equal at all - Burden of proof is given to the person who starts the case - In criminal case, the burden of proof is on the crown, while in civil case, it is on the plaintiff - Standard of proof is how much they have to do to satisfy to the burden - In criminal case, it is beyond a reasonable doubt - In civil case, it is balance of probabilities (more probable than not that it occurred) Open Court Principle: - Court proceedings are open to public - Ensure justice is done by having the entire thing being done in full public view - Open courts help to ensure that there is no wrongdoing in the justice system, also enhances the credibility of the justice system - There are exceptions, such as in camera hearing (judges closes courtroom to everyone except lawyers and parties -> judges do this if they feel it is in the public interest; judges have authority to shut out public, for example in cases of child sexual abuse -> protection of someone is necessary), or a publication ban (issues an order then certain information is not allowed to leave the courtroom, for example, anyone in the courtroom is not allowed to tell the name of the victim) Tort: - Tort is private wrong - Parallel to criminal law, and has a different orientation - Objective of tort law is not punishment but compensation - Intentional tort is deliberate wrongdoing (assault, battery, false imprisonment, etc) Unintentional Tort: - Didn’t mean to cause harm, you did and you are responsible for it - Harm is caused unintentionally (carelessness) - Concern about people who are harmed through carelessness of others led to unintentional tort - General concept of negligence is that we all have responsibility to be careful so we do not cause harm to others through our own carelessness (a duty of care) - Legal duty to be careful to people who may be affected by your actions - Duty of care is central to tort of negligence - 3 things must be proven for negligence: must prove they owe you a duty of care; they breached the duty of care; harm was caused as a result of breach of duty of care - Negligence was created from House of Lords (Donoghue versus Stevenson, 1932) - First solid case of negligence in English common law - Standard of care is based on a reasonable person - There are circumstances in which standard of care is higher - Question of foreseeability -> foreseeability of harm - The harm that results must be foreseeable Legal Education in Canada: - Before 1950’s, had to apprentice with practicing lawyers, then write exam until you could get in - Before 1950’s training replaced the need for law school - Three year law degree, followed by 12 months of articling (apprenticeship) - Proceeded by undergraduate degree (bachelors) - Law degrees are usually a second degree - Three year law degree was bachelor of law degree LLB, gradually changed to JD Law School: - 19 law schools in Canada - 3 in BC: UBC, UVIC, Thompson Rivers - Admission is highly competitive - Admission ratios of 10:1 or worse - Look at GPA and LSAT - UBC does 50/50 weighting on GPA and LSAT - UVIC uses 70 on GPA and 30 on LSAT - Typical requirement is A- or higher - GPA must be 3.6, 3.7, or higher - LSAT is around 4 or 5 hours, standardized test - Aptitude test, study isn’t possible - Tests for analysis - Multiple choice exam - LSAT is offered three or four times a year - Percentile is out of 100 - Percentile means where you ranked rela
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