Aggravating Facts

Aggravating factors are those factors which the offender is responsible for by acts of commission (doing) or omission (not doing or inaction) or alternatively facts in the case which are beyond the essential constituents of the crime and make the consequences, guilt or such worst. An example could be that minor children witnessed the assault of a parent by the Offender.

Balance of Probabilities

‘Balance of probabilities’ is the civil standard of proof. "What does "proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt — that standard of proof applies only in criminal trials. In civil trials, such as this one, the party who has the burden of proof on an issue must convince you that what he or she asserts is more probable than not — that the balance is tipped in his or her favour. You must examine the evidence and determine whether the party who has the burden of proof on an issue is relying on evidence that is more convincing than the evidence relied on by the other side. In short, you must decide whether the existence of the contested fact is more probable than not.” (quoted with approval from R. D. Wilson, N. J. Garson and C. E. Hinkson’s Civil Jury Instructions (2nd ed. (loose-leaf)), at § 4.7.4 by the SCC at paragraph 28 of R. v. Layton, 2009 SCC 36 (CanLII), 2009 2 SCR 540 )

Beyond a Reasonable Doubt

More complex than expected, phrase is made up of words commonly used, but together have a specific ‘legal meaning’ in law. A reasonable doubt is not imaginary or frivolous, nor based upon sympathy or prejudice, rather it is based on reason and common sense which must logically be derived from the evidence or absence of evidence. A reasonable doubt does not involve proof to an absolute certainty. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a "moral certainty”, as well, the word "doubt” should not be qualified other than by way of the adjective "reasonable”. Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: R. v. Lifchus, 1997 CanLII 319 (SCC), 1997, 3 SCR 320, <http://canlii.ca/t/1fqzt> retrieved on 2013-08-31

Burden of Proof

Burden of proof is the obligation on a party to produce evidence that will shift the deciding party to their position. If you don’t have the onus of proof, it may be that you have the ‘benefit of assumption’ and may not require any evidence to support your position.

Family Functioning

Family functioning is defined as the way in which the family members interact, react to, and treat other family members; It includes variables within the family such as communication styles, traditions, clear roles and boundaries, and the degree of fusion, flexibility, adaptation, and resilience (Winek, 20101).

Findings of Fact

In court ‘facts’ found based on inferences from question(s) answered by reference to established facts and evidence already in the case before the court. A question of fact is different than a question of law which considers legal principals pertinent to the facts of the case. So decide first what are the facts of the case as found by the court, and then apply the law to those facts.

Question of Fact: Did Billy Wind hit Mary Bishop on the side of the head?

Question of Law: Does hitting another person on the side of the head, without consent, ground a conviction for assault?

Judicial Notice

Judicial Notice is a legal doctrine (rule) wherein the court can recognize and accept as ‘fact’ the existence of certain facts without the parties having to call evidence to establish that proposed facts. This means that the Supreme Court of Canada has stated Aboriginal People in this country have been disadvantaged in Canadian Society since the time of contact. Ordinarily evidence must be called to prove alleged facts by way of testimony or tangible evidence. The reason for this rule is to avoid burdening the legal system by having to call evidence to establish facts that the Court (here the Supreme Court which binds all the other courts in Canada), states constitutes common knowledge and therefore proof by the parties is not required. For the Aboriginal Court Worker, you start from the point that the court already accepting that the disadvantage of Aboriginal Peoples in Canada is a given fact.

Mitigating Facts

Mitigating factors are those proven facts of the case presented at the sentencing hearing to the court, not for the purpose of exonerating the Offender, but for the purposes of ‘mitigating’ the guilt of the offender with the suggestion that any penalty ought be reduced. This not only includes the facts of the crime that person has been convicted of, but here also the ‘Gladue Principles’ as set out by the Supreme Court and personal information regarding the Offender, his family and community.

Psychosocial Instruments

There are over 15,000 different tools, questionnaires and such, that measure various psychological and social aspects of an individual. Many are ‘self-reporting’ and provide some measurement of an individual’s self-reporting of trauma and such. For example, The Conflict Tactics Scales (Straus et al., 1996) has a subset of questions that measure various aspects of Emotional and Physical Abuse, including psychological aggression, physical assault, and injury.  This subset also measures psychological and physical attacks on a partner in a marital, cohabiting, or dating relationship, and also use of negotiation.

Social Functioning

has been indicated as meaning the ability of the individual to interact in the normal or usual way in society2. CAUTION, most definitions of social functioning are based on the perspective of the dominant – non-aboriginal – culture. Aboriginal Justice Workers will need to present information to the court regarding the aboriginal worldview as to functioning within aboriginal culture. Remember ‘normal’ and ‘usual’ are moving targets at the best of times.

Victim Impact Statement

Noted in Criminal Code of Canada: Victim impact statement 722. (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.