Grade 12 Law - Unit Three Test: Criminal Law in Canada

Mens Rea

This is a latin term which is translated to “the guilty mind.” This refers to the mental element of crime. It requires proof of the knowledge of a crime, reckless behavior, willful blindness, criminal negligence, or the intention of a crime. The state of the mind of the accused must be proven by the crime by demonstrating the mental intent to commit, or assist with, a crime.

Actus Reus

This is a latin term which is translated to “the guilty act.” This refers to the physical act of committing a crime through an action, or an omission which constitutes a criminal act.

Indictable Offence

These are more serious crimes than summary conviction offences. These trials are more complicated. There are various procedures for indictable offenses which are dependent on the seriousness of the offence (it can include a judge and, or a jury). It is important to mention that there is not a limitation period for indictable offenses, as a result of this, an individual can be convicted of a crime numerous years after the offense occurred. These offenses may include murder, robbery, and theft over $5000. The penalties of these offences begin at a sentence of two years to lifetime imprisonment where an individual is eligible for parole after twenty-five years.

Summary Conviction

This is a process which allows an individual to access a court trial relatively quickly. A judge hears a summary conviction case in Provincial Court, usually this occurs without a jury. The maximum punishment is a fine which does not generally exceed $5000, and, or a jail sentence which does not exceed two years (less a day). These offences are usually less serious offences which can include creating a disturbance, joyriding, and committing an indecent act in a public space.

Hybrid Offence

The crown prosecutor will choose whether or not to sentence the offender with an indictable conviction, or a summary conviction. The majority of criminal offences in Canada are hybrid offences. A hybrid offence can be prosecuted as a summary conviction offense, or as an indictable offense. This is determined by the Crown Prosecutor which is dependent on the specific facts of each case, this can be dependent on a criminal record, age, violence severity, and community impact. This is known as a Crown Election. It is important to mention that hybrid offences are considered to be an indictable offence during the proceeding, until the Crown makes their official election.

Mistake of the Fact

It is a mistake regarding factual material, or a mistaken belief. This can include a belief of incorrect information regarding the meaning of a legal term, or the identity of an individual. Along with this, the criminal defendant may argue that they never intended to commit a crime, and as a result the criminal act which occurred was a result of a mistake of facts regarding the circumstances of the crime, or a misunderstanding of the law at that specific time. It is important that this mistake of fact must be completely honest and justifiably reasonable.

Mistake of Law

This is a defense choice which argues that the criminal defendant misunderstood the law, or was ignorant of the law as it existed at that time. However, it is often the responsibility of each individual to comprehend the laws in their state, or community. As a result of this, this appeal is only effective in small and selective circumstances. Finally, the defendant must reasonably prove their incomplete knowledge of the law in order for this appeal to be successful. This can also occur when a judge or a decision maker misapplies, misinterprets, or ignores legal principles, statues, or common law, rather than just disputing facts. This can include when a judge uses the wrong section of an act, or misinterprets legal terminology, changes the legal requirements, ignores relevant evidence, or wrongfully admits invalid evidence.

Presumption of Innocence

An accused individual is considered to be innocent until they are proven guilty in court.

Burden of Proof

This is the responsibility of the crown where they are obligated to prove that the accused is guilty with a high standard of proof along with reasonable doubt where they would rather release the guilty person, then convict ten innocent individuals. This is important because the judge (or jury) must be certain, or as close to certain as possible, that an individual is guilty in order to convict them.

Retributive Justice

The philosophy that people should pay for what they have done. This may include financial compensation, time in jail, or even their life. The punishments may include prison, various fines, house arrest, or even capital punishment (which is no longer a legal punishment in Canada).

Restorative Justice

This is a restorative approach to sentencing which focuses on restoring the relationship between offenders, victims and communities in order to prevent crime. It is believed by some individuals that it offers sentencing options which are too lenient, and therefore it does not provide a sense of justice for the community. The purpose of this is to focus on repairing harm (healing and moving forward), more than punishment.

Absolute or Conditional Discharge

The court can demand that the accused be discharged of an offence after they are found to be guilty. As a result of this, there will not be a registered conviction and no criminal record. These discharges are often for less serious offences. A conditional discharge includes specific conditions, or rules for the accused. This may include not drinking alcohol or using drugs, and not appearing in specific locations, along with attending specific treatment programs. An absolute discharge has no conditions on the accused.

Suspended Sentence and Probation

The court has the ability to reschedule, or suspend a sentence as a result of releasing the offender on probation for a specified length of time an individual is not imprisoned, however, they are supervised by a probation officer. It is possible for the court to include other sentencing orders with the probation order.

Fine

A specified amount of money that the offender must pay to the court as a form of punishment for committing a criminal offence. It is possible for a fine to be combined with another penalty.

Conditional Sentence

This sentence occurs when an individual is convicted of an offence and the court then imposes a sentence of less than two years’ of imprisonment. These convictions result in a permanent criminal record.

Imprisonment

This is the most serious sentence in the Canadian legal system because it deprives an individual from their freedom. An offender will serve their sentence in a provincial correction institution if their sentence is less than two years. An offender will serve their sentence in a federal penitentiary if their sentence is more than two years.

Jail (Provincial)

Summary Conviction (less than two years)

Prison (Federal)

Inditable Offenses (more than two years to lifetime imprisonment)

Detention Center

Temporary Imprisonment (this can be because an individual broke the conditions of their bail release)

Intermittent Sentence

This sentence will occur if the court imposes a sentence which is ninety days, or less. This means that the sentence will be served intermittently (or in blocks of time). This permits an offender to be released into the community for a specific purpose which may include going to work, or school, or caring for a child, or as a result of certain health concerns. An intermittent sentence must be served with a probation order, and it is often for a non-violent offender.

Indeterminate Sentence for Dangerous Offenders

An individual who commits an offence which causes serious personal injury may be declared to be a dangerous offender. As a result of this, they will be sentenced to an indeterminate period of detention. The significance of this is that the offender's term of imprisonment does not have an end date. This is not a life sentence, however the Parole Board of Canada reviews the case after seven years, and then every two years after that.

Life Sentences

An individual is sentenced to imprisonment for life if they are convicted of murder. This includes first, or second degree murder. It is the worst sentencing option in the Canadian Legal System. First Degree Murder: an offender is not eligible for parole until after at least twenty-five years of imprisonment. Second Degree Murder: an offender is not eligible for parole until they have served for between ten years and twenty-five years.

Victim Surcharge

This is a charge which must be ordered during the sentencing process. The amount of the victim surcharge is thirty percent of any fine which is imposed on an offender. If there is no fine which is imposed: There is a one hundred dollar fine for a summary conviction and there is a two hundred dollar fine for an indictable offence.

Restitution

This is a financial payment in which the court orders an offender to pay the victim as a result of the money that the victim lost from the offender’s crime. This may include money to repair, or replace damaged property. It ensures that the victim is not financially impacted by the crime which was committed against them.

Victim Impact Statements

This is a written statement from a victim which describes the physical or emotional harm, property damage, or financial loss which the victim of an offence has suffered. It is mandatory for the court to take this statement into consideration when the offender is being sentenced.

Community Impact Statements

This is a statement which is written by an individual on behalf of a community. It describes the harm or loss which was suffered by that community as a result of an offence.

Appeals

The responsibility of this court is to determine whether or not a lower court has correctly interpreted the law, and, or ordered a fair sentence. This court has the authority to dismiss the appeal while confirming the sentence or decision of the lower court.

Juvenile Delinquents Act

This youth justice statute was enforced from 1908 until 1984. It does not consider young offenders to be criminals, but instead as misdirected youth who require guidance and protection in order to correct their behaviour.

The Young Offenders Act

This youth justice statute was enforced from 1984 until 2003. It defines youth justice as a specialized and separate system for youth. It considers youth to be more legally responsible and accountable for their actions where they are taught discipline through an emphasis on rehabilitation and future prevention.

The Youth Criminal Justice Act (YCJA)

This youth justice statute has been enforced since 2003. It applies to youth who are between the ages of twelve and eighteen who are alleged to have committed criminal offences. The overall purpose of this act is to address youth criminality through meaningful consequences and rehabilitation opportunities in order to prevent future criminal behaviour.

Segregation

A carceral practice which is used to manage prisoners who are considered to be a high risk where they are kept in isolation for a specific number of hours each day with a legal limit on the total period of time in which an individual can be held in segregation.

Structured Intervention Units (SIU)

This is the same concept as segregation where prisoners are held in isolation within the prison when an individual is considered to be a risk to themselves, or someone else. It has a legal limit of sixty days.

Ashley Smith

A nineteen-year-old girl from New Brunswick who died from self-strangulation while in federal custody. Her death led to legal mandates changing how Canadian prisons use segregation.

Ontario Review Board (ORB)

An independent tribunal responsible for reviewing the status of all individuals considered unfit to stand trial or not criminally responsible.

Not Criminally Responsible (NCR)

A court verdict stating that a person has committed an illegal act but was suffering from a serious mental illness that caused the individual to be incapable of understanding the nature or consequences of the act.

Criminology

The study of crime and criminal behaviour.

Thomas Hobbes

An English philosopher who wrote the Leviathan in 1651. He primarily views the government as a structure which ensures collective security.

Cesare Lombroso

The father of criminology; he argued that criminals and criminal behaviour could be studied with a specific focus on biology.

The Atavism Theory

Proposed by Cesare Lombroso; argued that some individuals were born criminals who had evolutionary throwbacks with distinct physical features.

The Genetic Theory

Focuses on studying the tendency in which criminal behaviour is inherited, primarily through studies related to twins and adoptive children.

Neurocriminology

Modern theory focusing on brain damage/dysfunction in the prefrontal cortex and its impact on impulse control and neurochemical imbalances.

Structural Functionalism

Concept in Emile Durkheim’s theories believing crime is a normal part of society and necessary because it allows society to define right and wrong.

Anomie

A theoretical feeling of instability occurring when a society’s values and expectations break down or become unclear.

Social Disorganization Theory

States that high crime rates are caused by weak social structure and institutional breakdown such as family, school, and community programs.

The Strain Theory

Proposes that social structures pressure individuals into committing crime in order to achieve conventional goals like financial success.

Uttering Threats

Knowingly conveying a threat to cause death, bodily harm, damage property, or injure animals.

Criminal Harassment

Repeatedly following, communicating with, or watching a person, causing them to fear for their safety.

Common Assault

The intentional application of force, or threatening force against an individual, without consent.

Assault causing Bodily Harm

Assault causing injury or harm which interferes with the health or general comfort of the victim.

Aggravated Assault

Serious assault where an individual wounds, maims, disfigures, or endangers the life of a victim.

Assault with a Weapon

Committing an assault while carrying, using, or threatening to use a weapon or an imitation weapon.

Sexual Assault

Any act of a sexual nature that violates the sexual integrity of a victim without their consent.

Assaulting a Peace Officer

Intentionally applying or threatening force against an officer engaged in their duties.

Robbery

Theft combined with violence, threats, or the use of an offensive weapon.

Fraud

Dishonestly depriving the public or any person of property or money through deception or falsehood.

Libel

Anything published without lawful justification that is likely to injure a person's reputation.

Breaking and Entering

Unlawfully entering a place with the intent to commit an offence, or committing an offence inside.

Homicide First Degree

A homicide that is planned and deliberate, or involves specific scenarios like contract killing or murder of police.

Homicide Second Degree

All murder that is not first degree; intentional killing without prior premeditation.

Criminal Negligence

Acting or failing to act in a way that shows wanton or reckless disregard for the lives or safety of others.

Manslaughter

Culpable homicide that is not murder; unintentional death caused by an unlawful act or negligence.

Accident

An occurrence where a conveyance collides with a person or structure; includes a duty to stop and provide assistance.

MAiD

Medical Assistance in Dying; a legal framework providing exemptions in homicide and suicide laws for qualified practitioners.

In the Line of Duty

Justification for peace officers using force if they are acting on reasonable grounds authorized by law.

Self-Defence

Justifies using force to protect oneself if there is a reasonable belief of a threat.

Accessory

Someone who, knowing a person has been a party to an offence, assists them with the intention of helping them escape legal punishment.

Aiding and Abetting

Assisting or encouraging another person to commit a crime.

Conspiracy

An agreement between two or more individuals to commit an offence; complete upon the agreement itself