chapter 6

criminal law

Crime

an act or omission of an act that is prohibited and punishable by federal statute, it can change with time (along with society’s values) and place

Criminal law

the body of law that prohibit and punish acts that injure people property and society as a whole

what crime creates

chaos and fear

why is crime the governments responsibility?

Because crime affects society as a whole

Main purposes of criminal law: 

• protect people and property

•  maintain order, deterrence

•  preserve standards of public decency

The Criminal Code:

• federal statute

•  lists offences, sentences, procedures (and other bodies of law)

How many parts are there in the criminal code

21

How many sections are in the criminals

849

has their been a complete revision of the criminal code

nope

Administering the criminal law system

shared between federal and provincial govs.

Federal government:

• has exclusive jurisdiction for developing and revising Criminal Law for all of Canada.

Provincial government (quasi-criminal)

• appoints judge and finances/ administers its own provincial court system (handling the majority of criminal cases)

Provincial Jurisdiction

• can pass laws within own jurisdiction, ie. regulations.

• not considered true crime,

Quasi-criminal law:

 laws covering less serious crime offences at the provincial or municipal level most often punishable by fines 

Burden of Proof

• rests with the prosecution to prove the defendant's guilt

• "beyond a reasonable doubt"

• innocent until proven guilty

• Right to Remain Silent (not self-incriminate)

prove two elements to convict

1. the act

2.  the mindset (the intention behind the act)

Actus Reus:

“the guilty act” the voluntary action, omission, or state of being that is forbidden by the criminal code 

3 types of actus reus

1.  A Guilty Act (or Physical Action)

2. An Act of Omission

3. The “State-of-Being”

Guilty Action

(part of actus reus) Refers to the physical act involved in committing a

criminal offence 

Act of Omission:

Sometimes failing to act can be deemed a crime. 

• examples: 

- child neglect

- not abiding by the “rules of the road”

- turning a blind eye to a crime being committed

State of Being:

Sometimes a person can commit a crime, but neither acts or omits to act.

examples: 

• Possession.

• loitering

• Trespassing:

Mens Rea:

a deliberate intention to commit a wrongful act, with reckless disregard for the consequences

three types of mental states (or mindsets) in mens rea

1. Intention:

2. recklessness

3. knowledge

How may consent be related to the mens rea

applies to both the actus reus and mens rea of the offence. The actus reus concerns whether "the complainant was subjectively consenting in her mind" and the mens rea concerns whether "accused believed that the complainant communicated consent."

Intent

a state of mind in which someone desires to carry out a wrong action knows what the results will be and is reckless regarding the consequences

example of intent

Murder is intentional and carries a life sentence. If intent can not be established the accused could be charged with the lesser offence (and sentence) of Manslaughter (unintentional homicide)

General intent

the desire to commit a wrongful act with no ulterior motive or purpose 

example of general intent

Assault- 265. a. “…without the consent of another person, [s/he] applies force intentionally to that person, (directly or indirectly);…”.

Specific intent

 the desire to commit on wrongful act for the sake of accomplishing another 

example of specific intent

Perjury- (knowingly) providing false statements in court with intent to mislead/ affect outcome of the trial.

Robbery- 343. c. “assaults a person with intent to steal from [him]; or d. steals…while armed…

Distinctions between specific/general intent:

• general intent is easier to prove 

• Oftentimes the actus reus shows the mens rea

• certain defences are more likely to succeed against specific intent offences.

Motive

the reason a person commits a crime (the reason behind the intent)

motive example

• If I hit Tom (again ;)), my intent was to hit him, my motive was that he insulted my wife. Motive explains the intent but it does not need to be established to prove the MR. It may however influence the judge’s sentence.

Recklessness

consciously taking an unjustifiable risk that a reasonable person would not take. when someone can (or should be able to) see (and know) that the consequences of their conduct may be harmful but decide to take an unjustifiable risk anyway.

Criminal negligence (Example of recklessness)

wanton or reckless disregard for the lives and safety of others sometimes causing serious injury or death 

Knowledge

an awareness of certain facts that can be used to establish mens rea 

example of knowledge

perjury- knowingly giving false evidence during a trial (with intent to mislead)

Willful blindness

a deliberate closing of one’s mind to the possible consequences of one’s actions 

willful blindess example

Someone buys a valuable item from a stranger for a suspiciously low price, but instead of asking about the origin, they deliberately ignore the red flags to avoid confirming their suspicion that it might be stolen. 

Regulatory laws

federal or provincial statues meant to protect the public welfare 

Liability

 legal responsibility for a wrongful action

Strict liability offences

offences that do not require mens rea but to which the accused can offer the 

defence of due diligence. Usually fines but can lead to jail time.

strict liability examples

• provincial traffic laws

• laws under the Food and Drugs Act

• laws protecting workers

• environmental protection laws

• hunting (animals; not humans!! )

• fishing regulations

Due diligence

 the defence that the accused took every reasonable precaution to avoid committing a particular offence 

Absolute Liability Offences

a type of legal violation where the prosecution only needs to prove that an unlawful act or omission occurred, regardless of the defendant's intent or knowledge

• do not require mens rea 

• the accused can offer no defence

• cannot carry prison sentences

Absolute Liability Offences examples

• driving without a licence

• exceeding the speed limit

The perpetrator (or principle actor(s))

 the person who actually commits the crime 

• Must be present at the scene of the offence 

The parties to an offence

those people who are indirectly involved in committing a crime

• They do not need to be present at the scene of the offence

Co-perpetrators

more than one person is directly involved in the crime.

Aiding

a criminal offence that involves helping a perpetrator commit a crime

• does not need to be present at crime scene 

Abetting

the crime of encouraging the perpetrator to commit an offence

• does not need to be present at crime scene 

Counsellor

a crime that involves advising recommending or persuading another person to commit a criminal offence 

• one need not be present when offence committed to be found guilty

Accessory after the fact

someone who knowingly receives comforts or assists a perpetrator in escaping from the police

From LEAST to MOST INVOLVED:

1.  Abettor

2. Aider (technically also an abettor)

3. counsellor (above and beyond A & A!) 

NOT INVOLVED but still assisting after the crime was committed :

4. Accessory (After the Fact)

Party to common intention

the shared responsibility among criminals for any additional offences that are committed in the course of the crime they originally intended to commit 

Incomplete crimes

The actus reus is technically missing. Parties can still be found guilty of an attempted crime.

• two major types: criminal attempt and conspiracy

Attempt

the intention to commit a crime even when the crime is not completed 

Conspiracy

an agreement between two or more people to carry out an illegal act, even if that act does not actually occur