CRIMINAL LAW

http://www.lawyers.ca/statutes/criminal_c ode_of_canada_assault.htm

What is a crime?
Dictionary.com/crime

Technical definition:

Whatever Parliament defines as a crime. Any action, or omission of an action that is prohibited by law
Ex. Action - stealing something Ex. Omission not taking care of a baby.

Common definition:

a wrongful act that must be controlled for the protection of society as a whole.
Criminal Offences Prosecuted by the Crown (on behalf of society)
All the same:

Crown prosecutor Crown attorney Crown Counsel

Prosecute:

prosecute

/prskyut/ Show Spelled

verb, -cuted, -cuting. verb (used with object)

1. Law .
a. to institute legal proceedings against (a person). b. to seek to enforce or obtain by legal process. c. to conduct criminal proceedings in court against.
2. to follow up or carry forward something undertaken or begun, usually to its completion: to prosecute a war. 3. to carry on or practice.

3 main areas of Criminal law coverage

Protection of People Protection of Property

Protection of Morality

Changes to the Law (Chapter 1)

Acts that were once considered criminal:

Sodomy (gay sex) Abortion Suicide Prostitution?

Punishment

Should the punishment = the harm caused? (An eye for an eye?) Proportionate response (like in Oakes test)

What is unacceptable punishment?

What is Capital punishment? What is Corporal Punishment?

The Criminal Code

Defines offences
Sets out minimum & maximum penalties

Is somewhat open to interpretation

Case law is critical

Testifying in Court

A person who has information that either party in the case believes to be useful may be called to give evidence in a civil or criminal trial. For example, someone might have witnessed the event, know something that is important to the case, or have a document key to the trial. People whose knowledge about a particular subject can help the court with answers to technical questions may also be called as an expert witness. Usually, though, people come forward voluntarily when they have information they believe is related to the case. If they do not, they can be summoned by subpoena to give evidence in court. A person subpoenaed must testify or face a penalty. Witnesses testimony is taken under oath or by affirmation that they will tell the truth. Witnesses are required to answer all questions they are asked, unless the judge decides that a question is irrelevant or not necessary to the case. Sitting on a jury or testifying in court gives citizens an opportunity to make sure Canadas justice system is working as it should.

Subpoenas in Canada

A Canadian subpoena is a judicial order requiring a person to appear in court at a certain place and time in order to give evidence in a court proceeding. The person receiving the subpoena may have to take the stand and testify personally, or may be required to produce documents related to the court proceeding that are in his or her possession. Judges, justices of the peace or in some circumstances, Canadian court clerks may issue subpoenas. Judges or justices of the peace must believe that the person receiving the subpoena can provide the court with 'material evidence'. This means that the evidence is required in order to make a determination in a court proceeding, or relates directly to the issues in dispute. The witness usually receives the subpoena personally from a court officer. But it can also be left at the witness's home with anyone appearing to be at least sixteen years old. If the witness does not attend at court as required by the subpoena, the court may issue a warrant for his or her arrest. If a witness shows up in court but refuses to testify, the presiding judge may order that the witness be jailed for contempt of court.

Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.

What happens when harm is committed, but not defined in the Criminal code?
Ex. Knowingly transmitting HIV
case pg. 232 Charles Ssenyonga pg.234 Henry Cuerrier

Justice reluctant to extend the

ambit of the offence

(scope of legal prohibition)
would not proceed with Aggravated sexual assault since the act did not fit the Actus Reus of the offence

Actus Reus & Mens Rea

Two components of most crimes. Both must be proven beyond any reasonable doubt.

Actus Reus

The act. The prohibited act must have been committed as described in the statue outlining the offence.

Mens Rea

The intent (or guilty mind) Not only must the act have been committed, but it must be committed wilfully- with intent. As opposed to by mistake or some other defence (insanity, mistake of facts)

A sample of the text in the Criminal Code

Criminal Code

PART VIII: OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

Aggravated sexual assault

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146

For class discussion:

2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
(a) where a firearm is used in the commission

of the offence, to imprisonment for life and to a

minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.

A website with the Criminal code

(CanLii)
http://www.canlii.org/ca/sta/c-46/

Assault is defined as the non-consensual application of force by one person to another.

The Justice said, the law of assault is too blunt an instrument to be used to excise AIDS from the body politic. If no other section of the Criminal Code catches the conduct complained of, then it is a matter for Parliament to address through legislation.

What did he mean?

For class discussion: What is onus? Upon whom does the Onus fall? The person with the disease? The person willing to engage in sexual activity at their own risk? Consider:
attitudes, values, realities of life today

It took a decision by the Supreme Court of Canada in the case R v. Cuerrier to resolve the question.
The Law pg.234

But he had her consent, didnt he?

Was it vitiated by fraud?

..was the consent weakened or debased by the fact that she was not informed that he was HIV positive?
vitiate v iet/ Show Spelled[vish-ee-eyt] Show IPA verb (used with object), -ated, -ating. 1. to impair the quality of; make faulty; spoil. 2. to impair or weaken the effectiveness of. 3. to debase; corrupt; pervert.

Cuerrier was charged with Aggravated Assault. Not Aggravated Sexual Assault since the sexual component was not an offence.

Offences and Defenses

An Offence is an act that violates the law. A criminal offence is a violation of the Criminal Code. A defense is an explanation or excuse for your commission of an offence. If your defense is accepted, you will be acquitted.

Commit offence
Gather basic evidence

Charged
Gather all evidence

Trial Acquitted Convicted

(Crown can appeal)

(Accused can appeal)

Free

Sentencing
(Accused or Crown can appeal)

Chapter : Criminal Offences

Offences against: The Person Property Morality

Classification of Offences
1. Summary Conviction offence

2. Indictable Offence 3. Hybrid Offence

Summary Conviction Offence: less serious offences

Causing a disturbance in a public place Loitering Being in an illegal gaming house Driving someones car without permission

(Generally) Trial cannot proceed if more than 6 months have passed between the time of the act and the start of trial proceedings. Max penalty: 6 months and/or $2000.

Indictable Offences: more serious offences

Murder Arson Making/using counterfeit money Forgery

No limit on time between act and laying of charges. Once charged, trial should be within reasonable time (6 months) Police have broader search powers when investigating indictable offence. If facing 5+ years, may have Jury.

Hybrid
May be treated by the Crown as summary conviction or indictable. Indictable until stated otherwise. Examples:
Theft under $1000 Mischief Calling false fire alarm Conspiring/attempting to commit an offence

Mitigating and Aggravating circumstances

Mitigating circumstances (is not a full defense) are factors that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the sentence, sometimes even the charge.

Example: You are charged with drinking and driving but you have a perfect driving record and you volunteer at a shelter.

Aggravating circumstances are factors that make the offence worse. They work against the accused.

Example, you are caught shoplifting and it is the 7th time you have been caught in 3 years.

Offences against the person (people)

(Approximately 10% of all crimes reported. Homicide

Murder (1st degree, 2nd degree) Manslaughter Infanticide

Counseling or aiding suicide Assault Sexual Assault

Assault

Intentionally using force against another person without consent, threatening someone, and displaying a weapon while interfering with their movements. Shaking a fist may constitute assault! Criminal negligence: a reckless individual.

Assault

(Simple) Assault (max 5 yrs) like a hit, slap, push, or punch etc. that does not result in lasting bodily harm. (not more than a bruise or scratch) Assault causing bodily harm (max 10 yrs) Assault resulting in harm such as broken limb. Aggravated Assault (max 15 yrs) Assault resulting in maiming or disfiguring permanently affecting victim.

Assault: the Legal Perspective

The offence: an assault is an unwelcome interference with a person. It is a form of violence. The offence of assault varies from Simple Assault to Aggravated Sexual Assault.

This definition sets out the elements of the offence.

Assault causing bodily harm occurs when:

a person intentionally uses force of any sort against another person this is done without the victim's consent or agreement the victim is injured and the injury is something more serious and long-term than a scratch or small bruise.
Source: section 267 of the Criminal Code

What does the word intentionally mean?

well, from case law, we know what it is not! This is what two courts have said about intention:
A

reflex action lacks the necessary intent to constitute an assault.

Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Appeal)

An

accused does not have to intend to cause bodily harm. What is necessary is that a reasonable person would be able to predict that his or her actions posed a risk of bodily harm.
Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Canada)

How does the court decide if a victim has given consent?

This is what two courts have said about consent. A person cannot consent to being injured in a serious way.
of Canada)

Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme Court

If

Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court) Of course the response to the provocation must be reasonable. Being slightly provoked does not give right to smashing a persons head.

the victim provokes the assault, the courts have said that the victim consented to the assault.

 All

elements of the definition of the offence need to be proven by the Crown in order to convict a person of this offence. Those elements that are in doubt become legal issues.
For example, whether or

not the victim "consented" is often a legal issue in cases of assault.

What does the law say about acting in self-defence?

Here is how the defence is defined:

Self-defence occurs when: a person attacks you when you have done nothing to provoke or cause the attack
Source: section 34 of the Criminal Code

you

defend yourself from a clear and present danger with only with as much force as is necessary to resist and you do not intend to cause death or grievous bodily harm
Source: section 34 of the Criminal Code

How can a judge know how much force was necessary in the circumstances?
This

is a difficult decision to make and it cannot be made without looking at all the facts. However the following interpretation by a court suggests the court does not demand a completely rational reaction:

person under attack is not expected to stop to weigh or measure his or her reactions perfectly or precisely.
Case source: R. v. Baxter (1975), 33 C.R.N.S. 22 R v. Martin (1985) 47 C.R. (3d) 342 (Que. C.A.)

An

accused person who is successful in arguing self-defence will be acquitted of the charge.

Sexual Assault

Sexual Assault (max 10 yrs) non-consensual sexual touch (does not have to be violent) including rape (which is not always violent).
Sexual Assault Causing bodily harm (max 14yrs) Sexual assault, and causing some bodily harm but not grievous. Aggravated sexual assault (max life) sexual assault and wounding, maiming or disfiguring.

(if a firearm is involved, there is a mandatory minimum 4 yrs)

Sexual Assault
the Legal Perspective
How does the law define a sexual assault? Sexual assault occurs when...

a person intentionally "applies force" to another person

& this is done without the victim's consent or voluntary agreement & sexual activity is involved.
Source: section 265 of the Criminal Code. See also s. 271, 272, 273.

Thus it is a criminal offence to engage in sexual activity

with another person who does not consent.

What does "apply force" mean in a sexual assault situation?

Think of "force" as "physical contact". There does
not have to be a violent demonstration of force. Touching certain body parts, for example, also fits the definition of "applying force".

What does "sexual activity" mean?

The part of the body touched, the nature of the contact, the surrounding circumstances including what was said - these are all relevant factors in determining if there was a sexual aspect to the "physical contact".

The defence: in many cases the accused

person argues that the victim consented, or agreed, to the sexual activity.
Most victims will say they didn't consent, and most accused persons will say the victim did consent. Does the law help people interpret the meaning of "consent"?
The first source to consult for a definition of what is and isn't "consent" is the Criminal Code. ...note that the Code uses the word "complainant" rather than "victim".

Consent with regards to sexual activity

Consent: the voluntary agreement of the complainant to engage in the sexual activity in question
Criminal Code
Source: section 273.1, subsection (1) of the

No consent is obtained where

The complainant is incapable of consenting to the activity;

The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the

Criminal Code

2011 May SCC Ruling: When the complainant is asleep or not conscious, regardless of giving advance consent.

This is often referred to as the no means no law. The last clause states that if consent is given but then withdrawn during the activity, then this must be taken as a NO.

One can imagine that there are situations where there is confusion about this issue and the accused person honestly thinks the other person is consenting. What then? When this happens, the issue changes. The complainant says there was no consent. The defendants reply is that even if there was no consent, he/she had an "honest but mistaken" belief that there was consent. The courts have accepted, in the past, such an explanation as a valid defence. More recently the courts have been limiting the use of "honest belief" as a defence.

When is "honest belief in consent" a legitimate defence?

This is clarified in the Criminal Code:
Where an accused alleges that he/she believed that the complainant consented to the conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. Source: section 265(4) of the Criminal Code

There must be sufficient evidence which, if believed, would constitute a defence. It is not enough for the accused to simply claim the he/she honestly believed there was consent. (It has to be proven)

Homicides (Death caused by another)

Murder: 1st degree, 2nd degree Manslaughter (2nd degree murder may be

reduced to manslaughter- if provocation can be proven.)

Infanticide (Mother kills baby within days of giving

birth altered mental state)

Murder: 1st degree, 2nd degree

First degree murder is a planned and deliberate murder.

Or: the killing of any peace officer (Police, Jail guard) Or: when someone is killed while you are committing certain serious indictable criminal offences like arson, kidnapping, high jacking, sexual assault.

Max life, parole possible after 25

Second degree murder is a an intentional (but not planned) killing.

This charge can sometimes be reduced to a manslaughter charge.

Max life, parole possible after 10

Manslaughter

Manslaughter definition: Unlawful killing of a human being without malice or deliberation.

Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BCE.[1] The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill a state of mind called malice, or malice aforethought or the knowledge that one's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.

Nelson and Jimbo get into a fight

Nelson punches Jimbo in the jaw, knocking him backwards and causing him to hit his head on the edge of the pool table. Jimbo dies later that night from internal bleeding caused by the severe concussion. Nelson wanted to hit Jimbo but didnt mean to kill him but Jimbo died as a direct result of Nelsons actions. Nelson will be arrested and charged with manslaughter.

Infanticide

A charge that can only be applied to a woman who has recently given birth and causes the death of her child a short time after giving birth. Carries a maximum of 5 years in prison.

Criminal negligence causing death-(article)

Negligent or reckless behaviour that results in the death of another. Max life

Assisted Suicide

Assisted suicide (Euthanasia, consensual homicide, physician assisted suicide) Carries a maximum sentence of 14 years in prison.

Robert Latimer Mandatory minimums

What kinds of behaviour could be considered provocation for an attack?

Provocation

or gestures. Source: section 36 of the Criminal Code

Not

includes provocation by blows, words

always clear, and is subjective. Case by Case.

Defenses
Mental disorder (results in an NCR (not criminally responsible) acquittal) Automatism (sleepwalking pg.305) Self defense Intoxication (controversial and limited) Mistake of fact (accused was mistaken about the circumstances. Ex. Didnt know they were buying stolen goods) Compulsion (s.17 of Criminal Code. There are only certain minor criminal offences that may be excused with compulsion)

What leads to criminal behaviour?

Skipping class!

Different explanations focus on different aspects of human nature.

Physiology/ biology, psychology, sociology, politics, economics.

Cesare Lombroso
(late 19th century) Tried to relate physical characteristics such as jaw size to criminal behaviour! What is the point? What would we do with this information even if we could relate crime to certain characteristics?

Sometime in the late 19th/early twentieth century, 2 streams of theory evolved:

Chicago School

Sigmund Freud

Chicago School:
Linked criminality to underlying social and economic factors. Argued that social and environmental factors were important in examining deviant behavior.

Sigmund Freud:
Links criminality to individual psychology. Believes that all humans have criminal tendencies, but that these are modified through inner controls learned during childhood. Freud believed that faulty identification with the parent was the most common factor contributing to criminal behaviour.

Most experts agree that social status and income of the parents have little or no direct effect on the likelihood that children will turn to delinquency, although they may in some cases have indirect effects by amplifying life problems that can lead to crime.

Elements of an Offence

To obtain a conviction, the crown must prove,

beyond a reasonable doubt,

that

each element of the offence

with which the accused is charged was in fact committed by the accused.

Criminal offences are made up of two elements:

1. The Actus Reus

the prohibited act

2. The Mens Rea

The criminal intent

You have to do something illegal and you had to have done it on purpose. P.246 p250 #3

In the late 19th century, questions about mens rea (intent) were very straightforward. -If a reasonable person could foresee what was going to happen, then the person was guilty. It was assumed that you intended the natural consequence of you actions.

More recently, the courts in Canada have developed a preference for the subjective standard.
Subjective theory requires the Crown to prove that the accused had the

Requisite Intention
at the time the offence was committed.

P249

Culpability Guilt

Whether culpability will be based on subjective mens rea or objective mens rea is not based on the accused but rather it is based on the offence. The law will determine if a certain offence will be measured objectively or subjectively and all trials regarding this offence will be tried the same way.

Government loves statistics!

http://www40.statcan.gc.ca/z01/cs0002eng.htm