LATIN ANYONE?
The act or omission that comprise the physical elements of a crime as required by statute.
Actus Reus – A guilty deed or act
Affirmed R. v. Gladue, when sentencing an Indigenous person, judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Indigenous individual before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person before the court because of their particular Indigenous heritage or connection.
R. v. Ipeelee, [2012] 1 S.C.R. 433 LeBel J.
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.1 Criminal Code, R.S.C., 1985, c. C-46
“The law is reason unaffected by desire.”
Aristotle Politics
Lowest‑level adult sentence that an offender can get. 730(1) Criminal Code, R.S.C., 1985, c. C-46
Absolute Discharge
This decision of the Supreme Court of Canada decided the sentencing principles that are outlined under s. 718.2(e) of the Criminal Code as it relates to Aboriginal offenders.
R. v. Gladue, [1999] 1 S.C.R. 688 Cory and Iacobucci JJ.
Remedy awarded in exceptional cases for “malicious, oppressive and high-handed” misconduct. A remedy to deter the defendant and many others from engaging in similar kinds of unlawful conduct in the future. Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 Binnie J.
Punitive Damages
A sincere intention to be fair, open, and honest, regardless of the outcome of the interaction.
Bona Fide – Sincere, in good faith
Court confirmed that in determining questions of custody / access and parenting arrangements, the main consideration is to look at what is in the best interests of the child or children.
Young v. Young, [1993] 4 S.C.R. 3 L'Heureux‑Dubé
A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine […]
672.11 Criminal Code, R.S.C., 1985, c. C-46
“Laws made by common consent must not be trampled on by individuals.”
Thomas Jefferson letter to Colonel Van Meter, Apr. 27, 1781
Amount of money that an offender must pay to the court. It is different from restitution or a charitable donation. 734(1) Criminal Code, R.S.C., 1985, c. C-46
Fine
These First Nation communities of New Brunswick numbering 16,000+.
Mi’kmaq and Maliseet (Wolastoqiyik)
Remedy that may be given in all cases of breach of contract as a manner of “affirming that there is an infraction of a legal right”. This remedy is always available for causes of action, like breach of contract, and do not require proof of loss. The remedy is typically small and available even if it is not pleaded. Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd., [2006] O.J. No. 1964 (C.A.) LaForme J.A.
Nominal Damages
The mental state of a defendant who is accused of committing a crime.
Mens Rea – Guilty mind
The Court allows defense to use the crown’s theory of possession to establish standing to support a section 8 Charter challenge without resorting to self-incrimination.
R. v. Jones, [2017] 2 S.C.R. 696 Rowe J.
A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence […]
33.1(1) Criminal Code, R.S.C., 1985, c. C-46
“Wherever Law ends, Tyranny begins.”
John Locke Second Treatise of Government, (1689) London
Type of sentence and an alternative to jail. It is a court order to do (or not do) certain things for a period of time. 731(1) Criminal Code, R.S.C., 1985, c. C-46
Probation
This section states: A court that imposes a sentence shall also take into consideration the following principles: all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
718.2(e) Criminal Code, R.S.C., 1985, c. C-46
Remedy to relocate the trial to another area in the same jurisdiction to promote a fair and efficient trial. 599(1) Criminal Code, R.S.C., 1985, c. C-46
Change of Venue
At first sight or based on first impression.
Prima Facie – On the face of it
Established the rule to determine whether corroborative evidence is of assistance in the substantive reliability inquiry in principled approach to admit hearsay evidence.
R. v. Bradshaw, [2017] 1 S.C.R. 865 Karakatsanis J.
No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.
13 Criminal Code, R.S.C., 1985, c. C-46
“No organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.”
Abraham Lincoln First Inaugural Address, Mar. 4, 1861
This sentence is a jail sentence that the offender serves in ”chunks” of time, instead of all at once. 732(1) Criminal Code, R.S.C., 1985, c. C-46
Intermittent Sentence
This section states: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
35(1) THE CONSTITUTION ACTS, 1867 to 1982
Remedy by court order to compel or prevent a party from doing certain acts pending the final determination of the case. RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Rule 40 Rules of Court, N.B. Reg. 82-73
Interlocutory Injunction
To mean an exchange of goods or services, in which one transfer is contingent upon the other; “a favor for a favor”.
Quid Pro Quo – Something for something
Leading case on the use of separation agreements. The Court established a two-stage test to determine whether a separation agreement can be relied upon. If it is shown that one party had unfairly negotiated the agreement, it can be invalidated.
Miglin v. Miglin, [2003] 1 S.C.R. 303 Bastarache and Arbour JJ.
No proceedings shall be instituted more than 12 months after the time when the subject matter of the proceedings arose, unless the prosecutor and the defendant so agree.
786(2) Criminal Code, R.S.C., 1985, c. C-46
“Laws or ordinances unobserved, or partially attended to, had better never have been made.”
George Washington letter to James Madison, Mar. 31, 1787
This is jail sentence, except that the offender serves the sentence outside of jail, under strict, jail‑like conditions. 742.1 Criminal Code, R.S.C., 1985, c. C-46
Conditional Sentence
79.1 (1) In making decisions under this Act affecting an Indigenous offender, the Service shall take the following into consideration:
(a) systemic and background factors affecting Indigenous peoples of Canada;
(b) systemic and background factors that have contributed to the overrepresentation of Indigenous persons in the criminal justice system and that may have contributed to the offender’s involvement in the criminal justice system; and
(c) the Indigenous culture and identity of the offender, including his or her family and adoption history.
Corrections and Conditional Release Act, S.C. 1992, c. 20
Remedy that refers to the court compelling the defendant to perform certain actions. Semelhago v. Paramadevan, [1996] 2 S.C.R. 415 Sopinka J.
Specific Performance
To something being the case from the start or from the instant of the act.
Ab Initio – From the beginning
Court accepted that racialized people may experience interactions with the police differently than white people might, given the historic and continuing over-policing of racialized communities. Racialized people are subjected to more frequent and unpleasant interactions with the police, leading to heightened suspicion and a reasonable apprehension that one is being detained.
R. v. Le, [2019] 2 S.C.R. 692 Brown and Martin JJ.
Any one may arrest without warrant
(a) a person whom he finds committing an indictable offence; or
(b) a person who, on reasonable grounds, he believes
(i) has committed a criminal offence, and
(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
494(1) Criminal Code, R.S.C., 1985, c. C-46
“Laws too gentle are seldom obeyed; too severe, seldom executed.”
Benjamin Franklin Poor Richard's Almanack, (1756) New York
Highest‑level adult sentence that an offender can get. 745 Criminal Code, R.S.C., 1985, c. C-46
Life Sentence
493.2 In making a decision under this Part of the Criminal Code, a peace officer, justice or judge shall give particular attention to the circumstances of (a) Aboriginal accused;
PART XVI Compelling Appearance of Accused Before a Justice and Interim Release 493-529.5 Criminal Code, R.S.C., 1985, c. C-46
Remedy awarded in situations where a party is unjustly enriched from an innocent party, and therefore the court decides to award the enrichment to the innocent party. This remedy is available for breach of confidence as well as for breach of fiduciary duty. Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 LaForest J.
Constructive Trust
Is the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.
Corpus Delicti – The body, i.e. the gist of crime
Court cleared up any confusion about whether there should be a presumption in favour of the moving parent. The court set out the law as follows: the party seeking to vary the custody agreement would first have to show that the move would cause a material change in the circumstances of the child. Once this had been established, the judge would embark on a fresh inquiry regarding the best interests of the child.
Gordon v. Goertz, [1996] 2 S.C.R. 27 L’Heureux‑Dubé J.
The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, […]
743.21(1) Criminal Code, R.S.C., 1985, c. C-46
“It cannot be assumed that equity was following common law whenever they agreed, any more than the converse.”
Frederick Pollock letter to Holmes, London, Oct. 16, 1908
Convicted persons designated and subject to a longer, or indefinite, term of imprisonment in order to protect the public. 753(1) Criminal Code, R.S.C., 1985, c. C-46
Dangerous Offender
Bill C-92 was enacted this year. Newer federal legislation creating national standards on how Indigenous children are to be treated, where authorities are to prioritize extended family and home communities. The law also allows Indigenous communities to create their own child welfare laws.
An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24
Remedy awarded when an applicant presents a legal question to the court seeking only a decision with respect to the parties’ rights. There is no consequence sought beyond the court’s opinion on the matter. This relief should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question. Ewert v. Canada, [2018] 2 R.C.S. 165 Wagner J.
Declaratory Relief