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Midterm

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Department
Legal Studies
Course
LS 202
Professor
Frances Chapman
Semester
Winter

Description
Supernatural and Biological Theories Thursday, January 10, 2013 3:05 PM First Class: R.v. Dudley &Stephens  Cannabalism: three men killed the cabin boy and ate him  Was it murder??  They were charged with murder and they were given the death sentence (hanging)  It was lowered to life in prison; and then released in 6 months Introduction  R.v. Drummond (women shot pellet gun into her vagina and baby was born and survived after pellet was removed from the brain) o Homicide child AFTER birth dies injuries BEFORE birth o Mother=no status inside the womb, did not die from injuries, s. 223 (2) does not apply o Judge= "no matter how desirable it may be, I cannot construe section 223 in a manner that removes the words at the end of 223(2): "As a result of which the child dies after becoming a human being o Sentencing: 7 1/2 months in a secure psychiatric facility- full assessment o Got 30 months probation after trial  Law is a "continuing process of attempting to solve the problems of a changing society, [rather] than as a set of rules." S.M. Waddams o Bringing all the different laws together to come to a conclusion  "Test case": cases that have never been to court before; treated more liently or more harshly depending how the court wants society to view this issue What is Law?  What are the responsibilities of lawyers (criminal specifically)  Why was this legislation put into place?; how is the court going to use this? Civil Law vs. Criminal Law  Private law- civil law; Public law- criminal law  Common law o Common law can mean the system of law based on judicial decisions o All of Canada, other than Quebec, uses a common law system in addition to countries like the United States, England, New Zealand and Australia Introduction to Criminal Law  One act civil and criminal o You go to the criminal court first and then go to the civil because if you win the criminal court you are more likely to win the civil case  Criminal law is the most intrusive form of public law and theorists have attempted to understand the criminal law for centuries o Why did that person do that?? About the "why" (criminology) o After the action, what do we do? (criminal law) Vagabond: in England, anybody unemployed. They were physically marked so everybody  knew if they have stole etc Supernatural Theories of Crime  Two solutions: exocism or punishment and death used to destroy the devil  Witches: 1400-1700 B.C. Killed hundreds of thousands of innocent people Witch Trials  U.S. -Salem 1692  Witchcraft was one of the most common crimes in Europe in the 17th century  Tituba: pretended to be a witch and "controlled" girls who would lie about who were witches  Moral Panic- that's what sociology was referred to in that time o Happening today: terrorism, epidemic, the world ending Supernatural Theories of Crime  Torture was often used to extract confessions from CANON law used in most European courts required two eyewitnesses or a confession o Canon law: church law o Trial by battle: two people fight and whoever won was innocent o Trial by ordeal (aka trial by water) o Compurgation: the accused would gather and say that you were innocent Witchcraft today  Pretending to practice witchcraft etc  Code 365: punishable on summary conviction  Proctor and Gamble o Received 19.6 million dollars because of the company that was telling everyone that they were devil worshippers etc Biological and Psychological Theories of Crime  Look in the text.  Italian physician Giambattista della Porta (1535-1615) founds the school of physiognomy o Physiognomy: can the shape of your skull determine if you were a criminal or not  Lombroso's Theory of Atavism o Italian Anthropologist/ army physician  Associations between body type/appearance/behaviours  Studied criminals and the bodies of dead soldiers  Identified by sight: huge jaw, canine teeth, abnormal nose, prominent lips eg.  Advanced science of phrenology which involves measuring the size and shape of the skull  Atavistic man  Physical features of a human at an earlier stage of development  Female Offender and Lombroso  The criminal women is a monster/ women are stupid like children  Said he could tell what women..twisted theory  Prostitutes; hairy women o Discrediting Lombroso  Failed to replicate studies  Charles Goring, doctor and medical officer collected data on over 3000 English convicts  No correlation between body and head measurements and criminality  Eugenics: selective breeding; certain people will have children so everyone will be perfect (Nazis)  Craniometry: trying to measure the skull to see who was going to be criminal Conclusion  Job of the law student not why they have committed a crime but what to do with them when the enter the legal system  Ex post facto: after the fact  Law is full of uncertainty; and full of rapid change; "hard cases make bad law" Sources of the Criminal Law Tuesday, January 15, 2013 10:11 AM 1. Criminal activity is rampant? 2. Immoral v. Crime o Abortion; adultery; etc. 3. Power to prosecute criminal matters- "division of powers" in Constitution Act o Federal o Federal Parliament of Canada- Constitution Act 1867 4. Provincial offences o Quasi-criminal- driving offences 5. No retroactive 6. Rule of Law o When we are taking over somebody's freedom, we have to make sure it is done right o Benefit of the doubt to the accused 7. Not vague o If something is vague then we will not hold the person accountable 8. Legislation o "bad laws are the worst sort of tyranny" o Crime consists of conduct that is prohibited, because it has a negative impact on the public, and the law dictates what penalty can be imposed when the law is violated o Criminal Code- substantive criminal law because it talks about specific crimes and defences 9. Common Law o Areas that are not codified  Necessity- common law defence  Section 8 (3) of the Criminal Code provides that if the common law creates a justification of an excuse  People can defend themselves in new ways; new technology.  Have every way to defend yourself against the state  New defences  Common law offence?? 10. Criminal Law and Civil Law o Tort= private wrong o Assault and Battery o Civil  Filing of a statement of claim and statement of defence  Victim in control; paid for their lawyer etc  Standard of proof= balance of probabilities Plaintiff and Defendant   Found liable and collects damages o Criminal  Federally or provincially judge  Name of the state= Crown or Regina (case is against the society)  Crown- work with the police to get the evidence  Plead- either plead guilty or not guilty  Victim little control  Standard of proof- beyond a reasonable doubt  Victim and Accused  Found guilty and will be convicted and punished Wrong judgment- fundamental basis system  "better to let nine guilty persons go free than convict one innocent person" 11. Crime o Historically- treasons, felonies, and misdemeanours  The U.S. Still goes by these terms but not in Canada o Today: summary (least serious), indictable (most serious), and hybrid (the middle) offences  Summary: 5000 dollars and 6 months in jail is the worst sentence with a summary offence  Indictable: punishable by sentences of 2, 5, 10, 14, or life in prison (25 years)  ****Hybrid: at the discretion of the Crown  Future plea negotiations  The Crown attorney has a TON of power with deciding whether the offence is summary or indictable  Can they get a conviction in the case?? That is the principle that drives them 12. Adversarial System o System where disputes between parties are resolved by an impartial decision maker after hearing the evidence of both sides (Judge- then decides on the law) o Crown Attorney o Defence Lawyer o Beyond a Reasonable Doubt o Defined- R. v. Lachance 13. Judges o Can they be impartial?? Not fully o Federal, Provincial, or Territorial o 10 years of being a lawyer before you can be a judge o Criminal- admissible o Judge and jury o Justices of the Peace  Administering oaths, reviewing summons and warrants, administering oaths for affidavits  First appearance  Municipal and provincial - HTA  Wear a green sash o Lawyer 14. Jury o Understand and retain all of the evidence properly presented to them at trial o "trier of fact"- the person who is making the decision o Inadmissible evidence?? The judge decides what evidence can be used in the trial; the jury has to leave while this is decided (voir deir) o "Obstructed justice" o May be dismissed if they have a personal interest in the trial o Selected form pools of citizens summoned randomly from electoral rolls in a province or community o Content: 12 jurors The Court System Thursday, January 17, 2013 10:37 AM Provincial Inferior Courts o Justice of the Peace (Magistrates) o Youth Court, Family Court, and Traffic Court o Preliminary hearings Superior Court of Justice o Just above the Court of Justice... Supreme is the top Trial Courts in Canada o Section 469 of the Criminal Code provides that some offences must be tried by the Provincial Superior Court of Justice  Treason, murder, and other very serious crimes o Other indictable offences can be tried in this higher level of court at the choice or "election" of the accused o Provincial Court Judge, a Superior Court Judge sitting alone, or a Superior Court Judge and Jury o Appeals from the provincial court criminal division and family law courts if they were started at the lower level Court of Appeal o Reviewing decisions of lower courts  You have to find some legal reason why you can appeal o Read arguments o Panel of three judges o Apply law to facts AS PRESENTED AT TRIAL o Trial= facts o Appeal- legal rules o Appeal as a right Supreme Court of Canada o Highest court since 1949 o 8 Justice, 1 Chief Justice  Panels 3, 5, 7, 9 judges o Seek leave after court of appeal  Particular significance  Raise an issue of public importance, and  Should be decided by the Supreme Court of Canada o Leave applications  600-80 heard The Legal Profession and Rules of Professional Conduct Thursday, January 17, 2013 10:54 AM Crown Attorney o Hired by the state o Attorney General o Burden of Proof on the Crown o Present all evidence  Not just about winning and losing  Even if you come across evidence that is against your argument but they owe it to society to show all the evidence  Discretion  Protect the public interest  Negotiate Defence Lawyer o Duties of all lawyers  Raise fearlessly every issue, advance every argument, and ask every question, however distasteful LSUC Rules of Professional Conduct  Rule 1 o Relationship to the administration of Justice  Citation and Interpretation  Duty of care on the practice of law and discharge all responsibility  Ethical ideals of the legal profession  Look at the intent of the rule/ cant be trying to find loop holes  Rule 4 o The relationship to the administration of justice, other lawyers and the court  Advocacy  Honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect  Bring the administration of justice into disrepute Lawyer's Responsibility to Clients: Rule 2- Competence  Definitions o "Competent lawyer" means a lawyer who has and applies relevant skills, attributes, and values in a manner appropriate to each matter undertaken on behalf of a client including o (a) knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practices Sharp Practice  In Ontario, rule 6.03 (3) specifically addresses mistakes and says that a "lawyer shall avoid SHARP PRACTICE and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights o You cant take advantage of another lawyer's mess ups; e.g. A lawyer accidently sends something to you Exceptions to Confidentiality: Rule 2- Permitted Disclosure  2.03 (2) When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required o Imminent risk to identifiable person or group  2.03 (3) Where a lawyer believes upon reasonable grounds that there is n imminent risk to an identfiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being , the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required o Future harm (if it has not been done yet, then it is not confidential. Anything in the past is confidential) o Different than solicitor-client privilege
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