criminal law exam (1+2)

Who Creates the law?

Supreme Court of Canada

Federal government

Parliament of canada. the federal government creates laws that apply across the entire country

Provincial and Territorial Governments

each province and territory in Canada has its own legislature responsible for creating laws within its jurisdiction

Municipal Governments

municipalities, such as cities and towns, create local laws known as bylaws. Municipal councils, consisting of elected representatives (mayors and councilors), draft, debate, and vote on these bylaws

Case Law

Legal rules made by judges through court decisions. Courts interpret laws and set examples (precedents) that other courts often follow, especially in common law systems.

What is Criminal Law?

A branch of public law that pertains to crimes and their punishment.

Why is criminal law a branch of public law?

Because crimes are seen as offenses against society, not just individuals. The state takes sides to protect public interests and maintain order

Why does the state have to step in for criminal law?

criminal offences are considered behaviours that are harmful to the society as a whole, not only the victim

Who creates criminal law in Canada?

the federal government, specifically the Parliament of Canada is responsible for enacting criminal laws that apply across the entire country

What makes criminal law different from other branches of law?

nature of offences: criminal law deals with actions that are considered offences against the state or society as a whole

State prosecution

in criminal law, the state prosecutes the accused on behalf of society, as opposed to civil law, where disputes are typically between individuals or entities. the government acts as a plantiff in criminal cases

Punishment

criminal law involves the imposition of penalties such as imprisonment, fines, community service, or probation, which are designed to punish and deter criminal behaviour

Burden of Proof

in criminal cases, the burden of proof is “beyond a reasonable doubt” which is a higher standard than in civil cases

What are the sources of criminal law in canada?

federal legislation and judicial decisions

federal legislation

such as the criminal code of Canada and other statutes, defines criminal offences and penalties

Judicial decisions

interpret these laws and develop common law principles

Stare decisis

courts are bound by precedents set by higher courts

Civil law Legal Tradition

civil law is used in Quebec for matters of private law, including family law, contract law, and property law. Civil law is codified, meaning that it is primarily based on comprehensive legal codes that outline the rules and principles in specific areas of law

Common law

the common law tradition in canada is based on the principle of stare decisis, meaning that courts follow precedents established by previous judicial decisions. Used in all provinces and territories except quebec. it emphasizes case principles evolve through the decisons made in individual cases, which are then used as references for future cases

What is a crime?

act or omission that violates the criminal code and is punishable by the state

How are crimes classified in Canada?

summary, indictable, and hybrid offences

Summary Offences

less serious crimes, such as causing a disturbance, minor theft (under a certain value), and public intoxication. These offences carry lighter penalties (up to $5000), probation or shorter prison sentences (max 6 months)

Indictable Offences

Most serious types of crimes, including offences like murder, aggravated assault, robbery and serious fraud. Carry harsher penalties, such as lengthy prison sentences or life imprisonment

Hybrid Offences

Most common type of offence in Canada. Can be prosecuted as indictable or summary conviction offences, depending on the crime and circumstances of the case. The Crown prosecutor has discretion to decide how to proceed (ex., assault, impaired driving)

True Crimes vs. Regulatory Offences

true crimes- Acts that are inherently wrong or morally blameworthy (e.g., theft, assault, murder). The goal is to punish, deter, and protect society.

regulatory offences - Not inherently wrong, but violate rules meant to protect public safety (e.g., traffic violations, workplace safety). Focus is on compliance, not moral blame.

Magna Carta Key Criminal Law Principles

rule of law, due process, Habeas Corpus

Rule of Law

the Magna Carta established the principle that everyone, including the king, is subject to the law. It challenged the idea of the divine right of kings by asserting that the monarch’s power was not absolute

Due Process

The legal right to fair treatment through the justice system. It ensures laws are applied fairly, and people get notice, a chance to be heard, and a fair trial before being punished

Habeas Corpus

A legal right that protects against unlawful detention. It allows a person to challenge their imprisonment in court and ensures the government must justify why someone is being held.

Separation of Powers

usually government is divided into 3 branches; legislative, executive, and judicial. this principle promotes checks and balances, ensuring that each branch can limit the others if they overreach

Democracy

A system where government power comes from the consent of the people. Citizens participate through free and fair elections, ensuring accountability, representation, and protection of constitutional principles.

Protection of fundamental rights

Constitutions protect individual rights like freedom of speech, religion, and equality. These rights limit government power and are often found in Bills of Rights or Charters.

R v. Oakes (1986)

Oakes was found with hash oil and cash. He was charged with drug trafficking, but said it was for personal use. He argued the law's presumption of guilt violated his Charter rights

Why is the Oakes case significant?

Created the Oakes Test to decide if a law that limits Charter rights can be justified under Section 1, which allows “reasonable limits” on rights in a free and democratic society.

The Oakes test

a 2 part test to decide if a law limiting charter rights is a “reasonable limit”

1. Pressing and substantial objective - the law must aim to fix a serious and important issue in a free and democratic society

2. Proportionality- the law’s effects must be reasonable and fair. this includes 3 parts:

   • the law must be rationally connected to its goal

   • it should limit rights as little as possible

   • the benefits must outweigh the harm to rights

elements of a criminal offence

mens rea and actus reus. Both elements must be proved beyond a reasonable doubt by the prosecution to secure a conviction

What is actus reus?

the guilty act- the physical part of a crime. the crown must show the accused did something (like hitting someone) or failed to act when legally required (like not providing care)

Voluntariness: physical dimension

refers to the control an individual has over their body and actions. For an act to be considered voluntary in a legal sense, the accused must have conscious control over their physical actions (actus reus)

Voluntariness: Moral dimension

refers to the accused’s moral choice or free will when committing an offence (mens rea). includes whether the individual had the capacity to make a moral decision and whether external factors (e.g., necessity, duress) impaired their moral freedom

What is Mens Rea?

guilty mind, the mental state or intent required to commit the crime. the prosecution must prove that the act or omission was accompanied by a certain state of mind

elements of actus reus

conduct, circumstances and consequences

Conduct

the physical action or omission that constitutes the offence

Circumstances

the specific conditions or context in which the conduct occurs

Consequences

the result or outcome of the conduct, which the law deems criminal

Bodily Harm

any hurt or injury to a person that interferes with the health or comfort of the person that is more than merely transient or trifling

 

More than transient or trifling

this phrase means the harm must be more than minor or short lived

Theft

Happens when someone steals something from someone else, without their consent and knowing they don’t have the right to take or use it

Homicide

a person commits homicide, when directly or indireclty, by any means, they cause death of a human being

culpable homicide

murder, manslaugter, and infanticide

non-culpable homicide

self-defence, accidents under lawful circumstances, justified use of force

Causation

the link between the accused’s actions and the resulting harm or consequences

Types of causation

factual and legal

Factual Causation

if it wasn’t for the action or omission would the consequences had happened? Determined using the “but-for-test”. in this context, the accused actions must be a necessary cause of the outcome

Legal Causation

whether the accused’s actions were a significant contributing cause to the harm

First-degree murder

planned and deliberate, made your mind up before killing the person (cold-blooded murder)

Second-degree murder

deliberate murder without the planning aspect (made your mind up on the spot). not always intentional

Manslaughter

did not intend to kill someone, but they were harmed in some way and ended up dying from the bodily harm

Infanticide

applies when a mother kills her newborn child under the influence of mental disturbance caused by childbirth or lactation, considered a lesser offence than murder due to the mother’s psychological state

Smither’s Test Principles

contributing cause, no need for sole or direct cause, thin skull principle

Contributing Cause

to prove causation in criminal law, the accused’s actions must be a significant factor in the harm or death, not just a small or unimportant part. Their actions must have helped bring about the outcome

No need for sole or direct cause

It is not necessary for the accused’s actions to be the sole or even primary cause of the death, as long as the actions are a significant contributing factor, causation is established

Thin Skull Principle

also known as “take your victim as you find them rule”. the accused is fully responsible for all resulting harm, even if a pre-existing condition or the victims frailty contributed to the severity of the outcome

Nette Test Key Principles

1. significant contributing cause - the accused’s actions must significantly contribute to the harm, without needing to be more than trivial

2. foreseeability- the accused must have been able to foresee that their actions could cause serious harm, especially if the victim is vulnerable (e.g., elderly)

3. No “beyond de minimis” requirement - the test doesn’t require proving the harm was more than trivial; it focuses on whether the actions were significantly harmful