unit 3 criminal law

crime

 any act or omission of an act that is prohibited and punishable by Federal Law

• 4 general conditions must exist for an act or omission to be considered criminal

  •  must be considered wrong by society (breaking the law)

  • Causes harm to society 

  • Harm must be serious 

  • The remedy must be handled by the criminal justice system

Omission of an act

 refers to the failure to act in certain situations.

Criminal Code of Canada

 contains all of the country’s Federal offences and sentences to be imposed if found guilty

• can be amended by the Federal Government to reflect the changing needs of society

types of criminal offences - summary convictions

• Less serious criminal offences

• Can be arrested and summoned to court without delay

• Maximum penalty is $5000 and or 2 years in jail

  • Ex. public nudity, trespassing, making indecent phone calls, loitering, causing a disturbance

types of criminal offences - indictable

• Serious crimes that carry more severe penalties

• Max, penalty for each offence, can be up to life imprisonment (eligible for parole after 25 years)

• Trial judge decides the penalty

  • Ex. murder, rape, kidnapping, arson, theft over $5000

types of criminal offences - Hybrid

• Crown has choice of indictable or summary depending on severity

• Always treated as an indictable offence until charges are laid in court. Decisions is made on circumstances

  • Ex, theft over $5000, but is a first time offense, the crown may wish to proceed summarily

2 fundamental principles of canadian justice system

• An accused is innocent until proven guilty 

• Guilt must be proven beyond a reasonable doubt

  • Proven to the extent that a reasonable person would have no choice but to conclude that the defendant did commit the offence

Judge

• Makes decisions on the admissibility of evidence

• Controls events in the courtroom

• Interprets the law = pertaining to each case

• In a trial by jury, the judge instructs jurors on point of law and will sentence the convicted person

• In a non-jury trial, it is the judge who determines guilt or innocence and then passes a sentence

the jury

• Group of 12 men or women 

• Chosen by the crown and defence by a pool of citizens

• Job is to listen to the trial, examine evidence and follow the judge's instructions

• When the trial ends, they withdraw to deliberate on a verdict

• The verdict = guilty or innocent and must be unanimous

defense

• The person charged with a crime is called the accused or defendant

• The defendant can represent themselves but is advised not to

• Defence counsel is the lawyer who represents the accused 

• If the accused pleads not guilty, the defence counsel will attempt to show a reasonable doubt of the defendant's guilt

the prosecution

• The crown attorney is the lawyer representing the government's interests in investigating and punishing criminal offences to ensure society’s safety

• Role of the crown is to:

  • Prepare the government case by researching law

  • Assembles evidence for trial

  • Reviews exhibits and submits physical evidence

  • Takes statements from witnesses

Subpoena

ordering a person to attend court, cannot get out of it

perjury

knowingly making a false statement in court, this is an indictable offence

functions of the criminal code

1. Prevent harm to people and property

2. Preventing actions that challenge government authority

3. Discouraging personal revenge

4. Preventing harm to oneself

5. Expressing and enforcing mortality

Homicide

homi- human from homosapien

cide- from latin roots to kill

physical evidence

• Any object, impression, or body element that can be used to prove or disprove facts relating to an offence

  • Impressions: refers to patterns or marks found on surfaces - used as evidence

    • shoeprints

    • tire marks

    • fingerprints

fingerprints

pattern left on a surface by a finger tip

• 2 types

  • Visible - observed by the naked eye

  • Latent - made visible when dusted with powder and lifted (made by oil or prespirations)

classifying fingerprints

• Arches (5%)

• Loops (65%)

  • Showing stronger curves than arches with ends that start on one side of the finger and loop around to the same side

• Whorls (35%)

  • Forming complete ovals, often in a spiral pattern around a central pint

dactyloscopy

 the scientific study and analysis of fingerprints for personal identification

forensic science

the use of biochemical and other scientific techniques to analyze evidence in a criminal investigation

• forensic chemistry (non-biological substances)

• forensic biology (body fluids and hair, DNA)

Criminal Defense/justification

A denial of, or a justification for criminal behaviour 

• For a defence to succeed, the accused must produce evidence that supports this 

An accused person can put forth 3 possible arguments against their charge

1. They can deny that they committed the act, by disputing the Actus Reus

2. They can argue that they lacked the necessary intent or guilty mind (Mens Reas)

3. They can argue that they have a valid excuse for what happened while committing the act (a defence) 

Alibi

• the accused is somewhere else when the offence occurred.

• Generally if this is a defence the accused is expected to testify in court and be cross examined about their whereabouts

• Evidence in support of an alibi defence is evidence that the accused was:

  • At a particular place 

  • In a particular area at a particular time

  • Was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission

Automatism

• Acts committed in a unconscious state are not voluntary

• Therefore the argument is what degree of consciousness is required to commit a voluntary, thus criminal act

• Automatism is a state of “impaired consciousness”

intoxication

• The condition of being overpowered by alcohol or drugs to the point of losing self control

• To main distinction is that intoxication (drug or alcohol induced) is at the accused’s own hands

• In canada, self induced intoxication can sometimes be used as a partial defense in court, but only under very specific conditions

defense based on self-induced intoxication is generally not allowed for violent offenses where public safety is a concern such as assault or sexual assault

justification of crimes - defence of a dwelling

• Dwelling: whole/part of building/structure occupied permanently/temporarily

• A person is allowed to defend their dwelling from unlawful entry and to remove a trespasser if he/she has entered

• Section 35 of the CCC permits reasonable force to remove trespassers from your property

• Force must be proportionate and reasonable

• Cannot used excessive violence or it could legally backfire

necessity

• A defence stating that the accused had no reasonable alternative to committing an illegal act

  • Defence for a criminal act committed to due to immediate and urgent circumstances

• Three actions must be met

  • Act was done to avoid greater harm

  • No opportunity for an alternative action that did not break the law

  • Harm inflicted must be less than harm avoided

double jeopardy

• Legal doctrine whereby an accused cannot be charged tried twice for the same offence unless new evidence is submitted

  • Appeals do not count as double jeopardy

entrapment

• Police conduct that illegally induces criminal behaviour

• Burden is on the accused to prove entrapment

• The accuses must prove that the police went beyond merely offering a chance to commit a crime to actively inducing the accused to break the law through harassment/bribery/threat or harm

R v Berriman

Berriman was fleeing a job interview where she consumed alcohol and was sexually assaulted. She jumped in her car and drove quickly because she had believed that the man who attacked her at her job interview was following her. While drunk driving she hit a police car because she claimed she was also trying to avoid a pedestrian. The courts denied her defence of necessity because they felt like there were other alternatives to get out of the situation that did not involve drunk driving

R v Perka

Accused were drug smugglers who were taking drugs, via international waters, from Columbia to Alaska, when off the shore of Canada, the rough seas caused their engine to overheat. As a result they entered a Canadian bay to make repairs. Accused were then caught and charged with importing a narcotic and possession of a narcotic for the purpose of trafficking

• The Supreme Court ruled against Perka, stating that necessity is a valid legal defence, but it only applies in very limited circumstances. In this case, the court found that the accused voluntarily entered into the illegal situation and therefore could not use necessity as a defence.

R v Brown

The case involved an individual who became intoxicated by alcohol and magic mushrooms, leading to him breaking into a neighbor's home and attacking the resident. 

• he was trippin’ so hard he had no clue. So he tried to use this law called Section 33.1, which basically said you can’t use "being too high or drunk" as an excuse if you hurt someone. But Brown said, “Nah fam, that law’s trash – it violates my rights.”

• Supreme Court pulled up and said, “Facts.” They agreed the law was unconstitutional 'cause it went against the Charter – mainly the right to a fair trial. They were like, “You can’t just blame someone who had no control over their body or mind.” So Brown beat the charge.
  

Bill C-28: intoxication

• was a federal law passed in response to a Supreme Court decision that struck down part of the Criminal Code.

If someone voluntarily becomes extremely intoxicated, and then harms another person (for example, through assault or sexual assault), they can still be held criminally responsible.

• The law ensures people can’t escape accountability just because they were intoxicated.

mens rea

guilty mind

• mental state of a defendant who is accused of committing a crime

actus rea

refers to the physical action required for a crime and must be voluntary, intentional, and unlawful

four divisions of police - RCMP

Royal Canadian Mounted Police

• enforce federal, provincial, and municipal laws, and provide protective policing services

1. Investigating violations in the areas of - customs (smuggling) and taxes on goods

2. Drug Enforcement - 1000 officers, Priority given to international drug smuggling

3. Economic Crimes - commercial fraud, organized crime, technological crimes, counterfeiting 

4. Federal policing - hazardous waste, explosives, vehicle odometer tampering, student loans violations

5. Immigration - illegal immigrants, screening of immigration applicants

6. Proceeds of crime - identifies and confiscates money or property acquired through crime

7. Criminal intelligence - collecting, evaluating, analysing and reporting information on organized crime and terrorist group activities

8. International liaison and protective services - provides security for federal officers and visiting leaders

battered spouse syndrome

• A defence in cases where a person accused of a crime- often homicide- committed the act while suffering from the effects of domestic abuse

• This is a reference to any person who, because of constant and severe domestic abuse, may become depressed and/ or be unable to take any independent action that would allow him or her to escape the abuse

compulsion or duress

• A defence in which the accused claims they were forced by threats or bodily harm to commit the crime

• Cannot be used in murder, sexual assault, robbery or assault with a deadly weapon cases

four divisions of police - OPP

1. Responsibilities are outlined on the police services act

   1. Police municipalities that are not required to have their own police force

   2. Respond to municipal request for help in emergency situations

   3. Providing traffic control for all 400 series highways

   4. Providing investigation services, on request to the coroners office 

   5. Maintain provincial firearm registry, provide security at queens park, protection for government officials and dignitaries

four divisions of police - municipal police

1. Organized into a number of different divisions and specialty units. Ex. gang crime unit, homicide, robbery, drugs, explosives disposal unit

2. Regional uniform officers have duties that include:

3. Preserving the peace and crime prevention

4. Assisting victims of a crime/accident

5. Laying charges

6. Executing warrants

7. Enforcing federal, provincial and municipal by-laws

Halton police services

1. In milton, we have a regional police force - the halton police

2. The town of milton, Canada’s fastest growing community, has a population of more than 142,279

3. The milton police station is known as 12th division of the Halton Police 12th division 

First Degree Murder

planned and deliberate killing or the killing of a police officer in the line of duty

• life sentence with a chance of parole after 25 years

second degree murder

any murder not considered first degree

• life sentence with chance of parole after 10 years

Manslaughter

when someone causes the death of another but the killing is not premeditated or intended. can be voluntary or involuntary

Quasi Criminal Law

• Provinces can pass _____ _____ ___ (less serious offences) in canada. Therefore, smaller criminal offences can vary across the country

• regulatory and administrative offenses that, while not strictly criminal, are prosecuted with similar procedures and can result in penalties like fines and imprisonment

  • ex: tax evasion

willful blindness

when someone chooses not to know something because they don’t want to be responsible for it.

• If a person is willfully blind, the court treats them as if they knew the truth. You can’t avoid guilt by pretending not to know something that was obvious or suspicious.

Criminal Negligence

person does something really careless (or doesn’t do something they should have), and that carelessness puts others in serious danger or causes harm or death.

preliminary hearing

• It’s not a trial, but a way for the judge to decide if there’s enough evidence for the case to go to trial.

• The Crown (prosecutor) presents some evidence and maybe a few witnesses.

• The defence can ask questions and test the evidence.

• The judge doesn’t decide if the person is guilty—only if there's enough reason to hold a full trial.

absolute discharge

where a person is found guilty, but is not punished and does not get a criminal record.

• There’s no probation, no fines, and no follow-up.

• After 1 year, it’s automatically removed from police records (though it’s not a conviction in the first place).

• Usually for very minor offences

• When the person has no criminal history

• When the judge believes it’s not in the public interest to give a harsher sentence

foreperson

leader or spokesperson of a jury in a criminal or civil trial.

• Announce the verdict in court on behalf of the jury

conditional discharge

person is found guilty, but not given a criminal record, as long as they follow certain conditions.

show cause hearing

judge or justice decides whether an accused person should be kept in jail or released on bail while they wait for their trial.

culpable homicide

killing for which the accused can be held legally responsible, intentionally causing harm or is reckless

• manslaughter, first degree murder, second degree murder, infanticide

infanticide

killing of a newborn infant by the child’s mother

• has to be bio mom

• infant under 1

• mother must be suffering from mental disturbance

six possible sentences in a criminal trial hearing

• absolute discharge

  • offender is guilty but does not have a criminal charge

• conditional discharge

  • found guilty but released with very specific circumstances

• suspended sentence

  • accused is guilty but delays imposing a sentence

• fine

  • monetary penalty imposed for an offense

• conditional sentence

  • The offender serves their sentence in the community, often with restrictions like house arrest and other conditions, rather than in jail

• imprisonment

  • the offender is incarcerated in a jail or prison for a specified period.