Criminal Law - Terms

The arrest process

• Have to identify themselves 

• Advise the suspect that they’re under arrest and the charge against you 

• Caution the suspect with your rights (eg. right to counsel and remain silent)

Inadmissible evidence

Evidence that is prejudicial (negatively influences or prejudices the case), irrelevant or improperly obtained evidence is inadmissible in trials, as is any hearsay evidence.)

General and specific intent

General

• Accused person knowingly committed an illegal act but did not intend to and there was no specific purpose or outcome intended

• Offender put little to no thought into the consequences of their actions (e.g. driving under the influence)

Specific

• An accused person knowingly committed an illegal act and also has the intent to cause a particular result by committing the illegal act

• The accused person intended on committing both the illegal act and the consequences of the act

Alibi Defence

• puts the accused somewhere else when the crime was committed

Intoxication

• did not have specific intent due to intoxication

Insane/Non-insane automatism

Insane:

• automatic functioning without conscious control

• there was a mental disorder present at the time that the crime was committed

• they are NCR

• the mental disorder made them incapable of understanding the act was wrong or appreciating the nature of the act

Non-insane

• automatic functioning without conscious effort or control

• no mental disorder present

• Sometimes referred to as “temporary insanity”

• guilty act must be voluntary (mens rea)

Battered spouse syndrome

• this defence used in domestic violence cases

• in a situation where a spouse has experienced domestic violence and fears in their life

• in this situation, the person being abused may resort to violence in self defence

Duress

• argues that criminal act was committed under pressure (threat of harm or death by another person)

• Defence has to demonstrate that there was no other choice given the threat

Mistake of fact

• ignorance of the law can never be used as a defence

• the accused has to demonstrate that the mistake was genuine and the accused didn’t have the mens rea to commit a crime

Entrapment

• Can be used as a defence if the accused can demonstrate the police encouraged or harassed them to commit the crime as part of a “trap”

Double Jeopardy

• Section 11 of the Charter states that anyone charged and acquitted of a crime cannot be tried for it again

• Anyone who has been convicted of a crime cannot be tried for the crime with the same evidence

Provocation

• defence argues that the accused person was “provoked” into committing the crime

• person will argue they lost control or that it was a crime of passion

• this might result in a lesser offence

R v. Maracle

In the R v. Maracle case, he was accused of sexual assault. His defence in this case was that he believed the woman had agreed to have sex with him. His defence in this case is called honest but mistaken belief. This case was based on if his belief was reasonable. This meant that he had to prove that they had taken steps that made sure that both of them had completely agreed. He was not able to prove this and the court said they can't just assume someone said yes.

ALIBI

R v. Luedecke

In July 2003, a woman was attending a party in Toronto with a few of her friends. She arrived at 7 PM, and fell asleep on a couch at around 2 AM. Over the course of the night she had had a few drinks, and after falling asleep, she was abruptly awakened to find a man having sexual relations with her. She pushed him on the floor and got treatment. This man was Jue Luedecke, who claimed that he spent the evening drinking alcohol and consuming magic mushrooms at a friend’s cottage. The next day he arrived at the party at around 7:30. During the evening he drank 8 to 12 beers and several other alcoholic drinks. After being awake for 22 hours, he fell asleep at the opposite side of the couch as the complainant. He testified being pushed by a women off the couch onto the floor, and testified that he was completely dazed and in shock.

NON-INSANE AUTOMATISM

Winko v. BC

Henry Winko was charged with aggravated assault in 1983. He was found Not Criminally Responsible on Account of Mental Disorder (NCRMD) due to his schizophrenia. Under the Criminal Code at the time, individuals found NCRMD could be held indefinitely in psychiatric institutions. Winko challenged the constitutionality of the automatic detention provisions in section 672.54 of the Criminal Code

INSANE AUTOMATISM

R v. Daviault

Accused: Henri Daviault, a 65-year-old man with a history of chronic alcoholism.

Victim: A 65-year-old partially paralyzed woman who used a wheelchair. She was a friend of Daviault’s wife.

Incident: Daviault delivered alcohol (a bottle of brandy) to the victim at her request. After she drank some, Daviault consumed nearly the entire bottle himself.

Allegation: The victim alleged that she passed out and awoke to find Daviault sexually assaulting her.

Defence: Daviault claimed he had no memory of the events and was so intoxicated that he lacked the capacity to form the intent necessary for a sexual assault.
Legal Issue: Whether extreme intoxication can be used as a defence to a general intent crime like sexual assault.

R v. Gibson

• The accused (Robin Gibson & Martin MacDonald) failed to convince the Supreme Court that their charges (being under the influence) should be dropped (7-2 judgement). 

• They argued that they did not have enough to drink to be ‘under the influence’, although they did fail the Breathalyzer Test.

• After concluding that professionals estimating blood-alcohol concentration may be unreliable, they allowed the fact that alcohol affects people differently

• The testimony is dependent on how much the accused claimed to have consumed. Other than that, only the Breathalyzer test could be accountable and reliable evidence. 

GENERAL INTENT

R v. Graveline

August 1999

• 10:50pm

• Rita Graveline shot her husband, Micheal Graveline, with a rifle while he was fast asleep

• At the time of the shooting the couple were both 51 years old

• Married 32 years with 2 children

• Micheal Graveline abused his wife; humiliating insults, degrading behaviour, at time it became physical

• Rita was charged with second degree murder

BATTERED SPOUSE

R v. Paice

• Paice and his friends went to a bar in Saskatchewan to celebrate his birthday

• They were playing pool, but an argument broke down, in which Paice got up and intervened to break up the argument 

• Paice said that a guy named Clinton asked him to fight outside, and Paice agreed to this.

• Paice struck many times, and Clinton hit his head on the pavement and eventually died due to his injuries

SELF-DEFENCE/NECESSITY

R v. Ungar

• Ungar was a member of Hatzoloh Toronto, which is a non-profit volunteer organization 

• The organization was launched to respond to 24/7 emergencies within the Toronto Jewish community

• Ungar got a call where a woman was hit by a motor vehicle and Ungar didn’t pick it up because the call wasn’t around his area

NECESSITY:

His reckless driving was because it was a life or death situation where every second matters.

R v. Keller

• The accused was charged with trafficking in lysergic acid diethylamide (LSD)

• He claimed to be compelled to commit the crime due to threats of serious bodily harm and death by a man named Shawn

• He described him to be a tall man who is known to be a drug dealer

• Shawn had threatened him with “nasty consequences” which he interpreted as harm

• The trial judge decided that is defence of duress did not apply to this case

DURESS:

Shane Keller claimed his life was threatened by Shawn who was a known Drug Dealer and believed that if he did not follow through with what Shawn asked of him he would be either seriously injured or killed.

R v. Humaid

Tim Bosma

Absolute Discharge

Release without conditions, with no criminal records 

Conditional discharge

Release with terms, which, if successfully completed, results in no criminal record 

Suspended Sentence

A punishment not carried out as long as the offender complies with conditions

Probation

A punishment that allows the offender to live in the community under conditions and supervision

Conditional Sentence

Prison term of less than two years that is served in the community under conditions

• Offender is allowed to serve time in the community

• Judge must be satisfied that the offender will not endanger the safety of the community

• Offender must be of good behaviour and then appear before the court when asked to do so

• Most offenders are eligible

Suspension of privilege

A sentence that removes a privilege (e.g. drivers licence)

Peace bond

A court order requiring the person to keep the peace of good behaviour for up to 12 months

New Principles in the Youth Criminal Justice Act

• Accountability

• Rehabilitation

• Consequences

• Reintegration

• Crime prevention

• Public protection

Extrajudicial Measures

• warnings

• police cautions

• referrals

• extrajudicial sanctions

Conditions for adult sentencing as a youth

• 14+ years of age

• presumptive offence

  • culpable homicide

  • aggravated sexual assault

  • attempted murder

  • serious violent offences

Reena Virk Case Study

• Six girls between the ages of 14 and 16, were convicted of assault causing bodily harm

• All six were charged as young offenders - only Warren Glowatski and Kelly Ellard were charged as adults

• Warren Glowatski was convicted of second degree murder

• Kelly Ellard stood trial three times before she was finally convicted of second degree murder in 2000, but the BC Court of Appeal overturned that conviction because the Judge in the case did not give the jury proper instructions and ordered a fourth trial

• Finally, the Supreme Court upheld the original conviction and Ellard was sentenced to life in prison, with parole eligibility after 7 years

Voir Dire

type of mini-trial held within an actual trial to decide if certain evidence is admissible

Subpoena

A court document ordering a person to appear in court

Examination in chief

The questions a lawyer asks his or her own witness in court

cross-examination

Questions a lawyer asks a witness called by the opposing side

Directed verdict

when a judge withdraws the case from the jury and finds the accused not guilty because the Crown has not proven its case

Perjury

Act of knowingly giving false evidence in a judicial proceeding

Arraignment

• charge read by court clerk to the accused

• must include charge

• accused enters a plea of guilty/not-guilty

• if they don’t plead, not-guilty is automatically entered

Preliminary Hearing

Privileged communications

Certain confidential interaction that is legally protected from disclosure in court or other legal proceedings

• intended to encourage open and frank communication between individuals

Photographs

• virtual/physical images that depict visual evidence of a scene, person, item, and/or anything worth investigating/keeping accountable

Opinion Evidence

• When a witness gives their own personal belief about something

• in most cases, only experts can give opinion evidence

Hearsay Evidence

• statements made by someone who isn’t present to be questioned

• the court can’t test the statement’s truth through cross-examination

Character Evidence

Information about a person’s character or reputation used to suggest they acted in a certain way

Illegally obtained evidence

Evidence obtained in a way that violate the accused’s rights in accordance to the Charter

• includes breaches of rights such as unlawful search and seizure

Similar fact evidence

Act of using a defendant’s past misconduct or misdemeanor as a precedent for why the person is liable for the current crime. Exists to show that the person has a pattern when it comes to committing crimes

Confessions

An accused person’s acknowledgement that the charge, or an essential part of it, is true

Appearance Notice

• legal document sent to the accused when they are not yet charged

• indicates their offence and their court date

• For summary and less serious offences

• issued by courts

Summons

• Indicates the criminal charge and the court date

• Legal document sent to accused person charged with a crime

• Issued by the courts

• Usually delivered by the police

Warrant

• legal document issued by judges

• Gives the police the power to arrest a suspect

• Search warrants give the police the power to search a suspect’s person or property