CRM 2300 FINAL EXAM

Juvenile Delinquent Act (1908-1984)

For kids 7-16 years; reforms them by taking them out of the city into the country with a "best interests" philosophy. Great discretion to police, judges and probation-indeterminate sentences (to 21 years). Little regard for youth rights; no lawyer, can't appeal, police can question without lawyer/parents and not reading rights.

Young Offenders Act (1984-2003)

For kids 12-18 years; recognition of accountability and protection of public as well as legal rights of youth. Less discretion given to police, judges and corrections than with JDA→ determinate sentences; no status offences but lack of clear sentencing principles.

Status offences: police apprehend kids for things adults wouldn't be charged for e.g. underage drinking, truancy not going to school

Youth Criminal Justice Act Features (2003)

1. Emphasis on diversion from court

2. Restrictions on custody to violent or repeat offenders

3. For more serious violent offenders → simplified process for adult sentences.

Youth Criminal Justice System Objectives

1. Prevent crime by addressing underlying circumstances of criminal behaviour

2. Rehabilitate young persons who commit offences and reintegrate them

3. Ensure young person is subject to meaningful consequences for offence in order to promote long-term protection of public

YCJA Sentencing

YCJA max sentence is 3 years ; except 10 years murder

-1st degree (10 years) = 6 years custody + 4 years community supervision

-2nd degree (7 years) = 4 years custody + 3 years community supervision

-Earlier parole eligibility

Presumptive Sentences

16-17 years

Offences such as murder, attempted murder, aggravated sexual assault, manslaughter

-Youth would have to convince the court that an adult sentence was not appropriate - so onus was on youth not the crime

Not Criminally Responsible due to Mental Disorder

Must be established that accused had a mental disorder that:

-Deprived him/her of the capacity to appreciate that nature and quality of act or omission

-Or knew it was morally wrong

-Accused found NCRMD is not acquitted, but held not to be criminally responsible for actions

-May potentially be held in custody in a psychiatric hospital or supervised in the community if considered a threat

Fitness to Stand Trial

Concerned with the state of the mind of the accused person at the time of trial, and with the question of whether or not:

-Accused has the mental capacity to understand the nature and purpose of trial proceedings

-Communicate with counsel

Limited Cognitive Capacity Test

Most will be found fit as it requires only a minimal degree of ability to understand the nature and object of proceedings. In such cases, accused may be kept in custody in a mental hospital or supervised in the community until fitness is restored-most likely after a brief period of time.

Mental Disorder/Disease of the Mind

"Embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning"

-Excludes self-induced states, transitory mental states

-Must also establish that accused was incapable of knowing the act was wrong

Meaning of "Appreciate"

The nature and quality of the act, as differentiated from "know".

→ Cognition is not the sole criterion-emotional, as well as intellectual awareness of the significance of the conduct is the issue.

Meaning of "Nature and Quality of the Act"

Refers to the physical nature and quality of the act. The accused must have the capacity to know what he is doing. This does not mean that it should be accompanied by appropriate feeling about the effect of the act on others.

Meaning of "Wrong"

Wrong according to the moral standards of reasonable members of society (R. v. Chaulk).

-Test: whether capable of knowing that society at large regards the conduct as morally wrong

-Accused must prove on a balance of probabilities that they lacked capacity to know conduct was blameworthy

Automatism

Defence arises when an accused acts involuntarily because of some form of temporary impairment of his/her mental faculties/State of impaired consciousness where an individual is capable of action but has no control over it.

Not mental disorder or self-induced intoxication.

Automatism Triggered by External Trauma

Blow to the head which causes impaired consciousness during which accused engages in criminal conduct. Amnesia as important element.

Automatism Involuntarily Induced by Alcohol or Drugs

When accused, thru no voluntary action of their own, become so impaired by alcohol/drugs fall into a state of automatism. Used more historically, not as easy to prove today.

Automatism Voluntarily Induced by Alcohol or Drugs

Those who voluntarily ingest alcohol/drugs and experience altered consciousness are barred from raising the defence of automatism. They are at fault and aren't entitled to an acquittal, but may raise a partial defence of automatism.

Automatism Caused by Mental Disorder

Where condition is caused by mental disorder, accused is not entitled to be acquitted on automatism. Sharp distinction between complete acquittal thru automatism and NCRMD defence which leads to a special verdict.

Mistake of Fact

An accused person will generally be entitled to an acquittal if he or she operated under a mistaken belief as to one ore more of the material circumstances surrounding the alleged crime. Where the accused person honestly believes in a state of facts that, if they were true, would not constitute an offence, they then lack the mens rea necessary for the crime with which they have been charged.

Exceptions to Mistake of Fact: Bigamy

Defence based on a belief "in good faith and on reasonable grounds" that spouse was dead, may have been missing.

Exceptions to Mistake of Fact: Sexual activity with children/youth

There is no defence that child/youth consented. Accused's knowledge of the age of child/youth is critical. Defence of mistaken belief complainant was over 18 years, Crown must prove BARD that accused did not take such reasonable steps.

Consent

Permission; Absence of consent is an essential element of the actus reus of assault and theft. No consent is obtained when the complainant submits or does not resist by any reason of:

-Application of force

-Threats or fear of the application of force

-Fraud

-The exercise of authority.

Subjective Mens Rea

Accused does not have to show mistake was reasonable-only a reasonable doubt as to honesty of mistaken belief.

Objective Mens Rea

Defence based on mistake of fact must be one that a reasonable person would raise in the same circumstances with the same knowledge.

Reasonableness

Of a mistake of fact may be relevant factor in determining credibility of accused. More unreasonable it is-less likely judge/jury will believe accused is telling the truth.

Mistake of Law

Ignorance of the law is no defence to a criminal charge. Neither a mistaken interpretation of the law nor complete ignorance as to the existence of a particular law is a valid defence. Mistaken belief that a statute is invalid or not applicable is a mistake of law irrelevant to the fault requirement. Only applicable to criminal law.

Officially Induced Error

Functions as an excuse rather than a full defence. May be raised successfully where the accused person has been charged with a violation of a regulatory statute and has reasonably relied on the erroneous legal opinion or legal advice of an official who is responsible for the administration or enforcement of the law in question.

Colour of Right

Accused persons who act under the influence of an honest, albeit mistaken, belief that they have a valid legal right are considered to be acting under this; legal principle that accused may not be convicted if they honestly believe they have legal right to the property in question.

Provocation

Must have the necessary intent for murder and acted on it. Must be established that there was a wrongful act or omission that would be sufficient to deprive an ordinary person of the power of self-control and that the accused person acted on the sudden and before there was time for their passion to cool.

Provocation: Requirement 1(A) Wrongful Act or Insult

Victim must have directed "wrongful act or insult" at the accused person-in the form of insulting behaviour. Critical-prevents accused from claiming provocation merely because spouse leaves them or intends to leave them

Provocation: Requirement 1(B)

Objective component: act/insult would be sufficient to deprive an ordinary person power of self-control

Subjective component: requirement that the accused was in fact provoked (must be established first).

Flexible approach to the ordinary person standard.

Provocation: Requirement 2 Act/Insult must be Sudden and Unexpected

Sudden and unexpected-distinguished from responses taken in vengeance than provoked ones.

Provocation: Requirement 3 Act/Insult Caused Accused to Act in Anger

Part of the subjective component of defence:

1. Must establish act/insult sufficient to cause ordinary person to lose self control

2. Must establish they were provoked.

Accused must have killed because he was provoked-not because provocation existed.

Provocation: Requirement 4 Accused Acted before having Recovered Normal Control

Acted on the sudden before there was time for passion to cool. Not acceptable if one has the legal right to be doing the thing causing provocation or deliberately inciting for purpose of providing an excuse for murder.

Declaration of Principle-section 3

Youth justice system:

1. Prevent crime by addressing person's offending behaviour

2. Rehabilitate young persons who commit offences, reintegrate them into society

3. Ensure that a young person is subject to meaningful consequences for his or her offence.

Reduce use of pre-trial detention

sec. 29(1) - prohibits courts from using PTD as a substitute for welfare of MH concerns.

Reducing use of custody

More youth in PTD than in sentences custody - 53% are in custody before they have been convicted of anything.

Conditions should be aimed at reducing the risk youth will not appear in court, not commit an offence, or maintain confidence in the CJS.

Limited imposition of custodial sentence

last third on community supervision; intensive rehabilitative custody and supervision.

New community based sentences

Attendance centres/intensive supervision; intensive rehabilitative custody.

Sentencing Youth as Adults

Youth can receive an adult length sentence, but generally not in adult prison until 18 years

Earlier parole eligibility than adults - for murder, life but if under 18 years, parole eligibility at 10 years vs. for adults life +25 years parole eligibility.

Extrajudicial Measures

Diversion; Broader concept, may also include oral warnings, written cautions, referrals to counselling.

Extrajudicial Sanctions

Non-court community based programs.

Diversion

Programs that provide an alternative to prosecution. Involves an accused person doing something outside of court in order to have a charge (or charges) stayed or withdrawn by the Crown.

Youth Legal Rights

Sets "fair and proportionate accountability" (sec. 3(1)(c)) as central sentencing principle.

Limited Accountability

Youths have this in comparison to adults. Recognises greater dependency and reduced maturity.

Absolute Discharge

Alternative under NCRMD; must decide is accused is a threat-if not, ______ _______.

Amnesia

the loss of memory caused by psychological or physical trauma. Inability to remember committing a crime doesn't necessarily mean the defendant didn't intend to and actually commit it. Has no effect on the conduct at the time of the offence.

Conditional Discharge

Releasing a convicted offender under certain terms, and erasing the criminal record after three years if the terms are met.

Evidential Burden

Determines whether an issue should be left to the trier of fact. Merely requires that the accused introduce some evidence capable of raising a reasonable doubt as to the issue in question; Not a burden of proof.

Mental Disorder

Any malfunctioning of the mind having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a 'disease of the mind' if it prevents the accused from knowing what they are doing, but transient disturbances of consciousness due to specific external factors do not fall within the concept of disease of the mind.

Disease of Mind

Embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or a concussion.

Specific Intent Offence

One which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act. e.g. murder, assault with intent to wound, breaking and entering with intent to commit an indictable offence.

M'Naughton Rules

A test applied to determine whether a person accused of a crime was sane at the time of its commission and, therefore, criminally responsible for the wrongdoing; a test for criminal insanity. Basis for the modern day NCRMD defence.

Trier of Fact

The party responsible for deciding the facts in a trial. In a jury trial; the members of the jury are the triers of fact and the judge is responsible for making decisions about the applicable law.

Trier of Law

The person tasked with making legal rulings (as opposed to factual findings) in a trial or other court proceeding; determines whether evidence proffered meets a threshold reliability so that it can be considered by the trier of fact; this is also known as the evidential burden. (judge)

Psychosis/Psychotic State

A mental disorder characterised by profound disturbances in a person's thoughts, emotions, and ability to perceive reality. e.g. schizophrenia

Psychological Blow Automatism

State of dissociation as the consequence of this; not able to control conduct. May be unable to recall any of the events following. Courts ask whether an "average normal person" would have entered into a state of dissociation in the same circumstances-recognise extraordinary external events affecting the average normal person.

Persuasional Burden of Proof

Burden of Proof on the accused-they have to prove innocence. Standard of proof that must be met is that of proof BARD. (R. v. Stone). On the balance of probabilities (civil law standard)-it must be more probable than not at time of offence state of automatism. Extremely rare defence.

Evidentiary Burden of Proof

Trial judge has discretion to permit defence to be considered at the end of trial. Defendant must point to evidence sufficient to establish "air of reality" to defence-evidence that is capable of raising reasonable doubt in trier of fact. Judge must decide if it is met.

Air of Reality

A pre-requisite test against which a proposed defence to a criminal charge is weighed; that any proposed defence must at least have an evidential foundation. Defence must have sufficient evidentiary backing to be put to the jury/judge.

Balance of Probabilities

Described as being "more probable than not", or more technically, the chance of the proposition being true is more than 50%. Civil law standard.

Reasonable Steps

The steps that a reasonable person acting prudently would take in light of the specific knowledge of the surrounding circumstances that the accused person had at the time of the alleged offence.

Partial Defence

Partial defences to a criminal charge-may reduce the severity of a criminal charge but not to acquittal. e.g. murder -> manslaughter

Intoxication: Partial Defence

May reduce the severity of the charge against the accused. May be a defence to a charge where the Crown must prove specific intent (murder or robbery). Never available where the offence is considered to be one where Crown has to provide the only general/basic intent (manslaughter or assault).

Beard Rules

Judge made rules define the circumstances in which an accused person may successfully raise the defence of intoxication.

Beard Rules: 1

If intoxication produces a mental disorder (disease of the mind) then the accused is NCRMD.

Beard Rules: 2

If intoxication prevents accused from forming intent necessary for crime of specific intent-may be acquitted but not for crime of general intent.

Beard Rules: 3

If intoxication falls short of preventing the accused of forming intent necessary for conviction of crime of specific intent-it is not a valid defence.

Crimes of Specific Intent

Ulterior motive, deliberate steps toward an illegal good, mental process of forming intent. May be available when prevents forming of intent.

Crimes of General Intent

Immediate end, intentional (not accidental or honest mistake), purely physical product of momentary passion (manslaughter, sexual assault, mischief, impaired driving). Relates solely to the performance of the act with no further ulterior intent or purpose. Never available-ONLY when not interference with bodily integrity.

Daviault Defence

Accused must establish-on the balance of probabilities that they were in a state of extreme intoxication akin to automatism/insanity. Allowed for an acquittal for extreme intoxication/automatism/insanity.

Criminal Code Section 33.1

Deals only with offence of general intent involving an element of assault or interference with bodily integrity. Does not apply to general intent offences that involve violence or threat of violence-applies to mischief; to prevent violent men from avoiding responsibility when drunk.

Duress Defence

Where the accused person has committed an offence under the threat of death or serious bodily harm by another person; person may be excused from criminal responsibility if they had no real choice but to break the law. (R. v. Ryan).

Necessity Defence

Accused can avoid some imminent disaster or calamity only by breaking the law. Asserting that the evil they sought to avoid was greater than the evil inherent in breaking the law. No reasonable legal alternative. (Proportionality)

Excuse vs. Justification

A justification negates the wrongfulness of the conduct. An excuse negates only the culpability of the actor for wrongful conduct.

Normative Involuntariness

The rationale underlying the defences of duress and necessity is that the accused person had no real choice but to break the law. This is the notion that, in a moral sense, the accused person acted involuntarily.

Safe Avenue of Escape

When an accused person raises duress defence, it must be established that he or she did not have this...if a reasonable person, with the same knowledge of the circumstances, would have taken the opportunity to escape, then the defence would fail.

Modified Objective Test

Requires the courts ask whether a reasonable person, with the knowledge that accused person had of the circumstances, would have realised the risk that their conduct created and would have refrained from taking such a risk.

General Intent

immediate end, intentional (not accidental or honest mistake), purely physical product of momentary passion (manslaughter, sexual assault, mischief, impaired driving).