criminal law test

Classical criminology

Developed in response to chaotic justice systems in 18-19th century Europe

Cesare Beccaria (1738–1794):

Humans are rational and self-interested.

People give up some freedoms (e.g., obeying laws) in exchange for security.

Laws should deter crime; punishment should outweigh criminal benefits.

Advocated for proportional punishment — penalties should match the severity of the crime.

Against the death penalty and torture, believing they were ineffective deterrents.

Jeremy Bentham (1748–1832):

Advocated utilitarianism — law should benefit the majority.

Crime prevention through clear laws and swift, certain punishment.

Introduced the concept of "hedonistic calculus", where individuals weigh pleasure vs. pain before acting.

Positivism

• Key Thinker: Cesare Lombroso

• Core Ideas:

  • Crime is caused by biological and psychological traits.

  • Criminals may have inherited physical features.

  • Later shifted focus to environmental and psychological causes (e.g., XYY chromosome, personality disorders).

• Anomie Theory (Durkheim):

• Crime rises when social norms weaken (e.g., urbanization)

• Ecological School:

• Crime concentrated in poor, unstable neighborhoods

• Social Conflict Theories (Marx, Engels):

• Crime linked to inequality; laws protect the powerful.

Consensus Theory:

Laws reflect shared societal values; crime violates collective norms.

• Rational Choice & Deterrence:

• Modern take on classical ideas; people commit crime when benefits outweigh risks.

• Strain Theory:

• Crime arises from blocked access to societal goals (e.g., wealth).

• Socialization Theory:

• Criminal behavior is learned from one's environment and peers.

• Biological Theories:

• Trait Theory: Genetics, diet, hormones may influence crime.
  
  

Neurophysiological: Brain function abnormalities linked to criminal behavior.

Key questions of criminal law

• Should law regulate offensive or nuisance behavior?

• Should the state protect individuals from themselves?

• Who determines what is morally wrong enough to criminalize?

Social contract theory

• Citizens allow the government to create and enforce laws.

In exchange, they give up certain freedoms for safety and order.

5 main functions of criminal code

1. Preventing Harm to People and Property

   • Protects individuals and property (e.g., laws against assault, theft).

2. Preventing Actions that Challenge Government Authority

   • Maintains state stability (e.g., laws against terrorism, treason).

3. Discouraging Personal Revenge

   • Encourages legal resolution over personal retaliation.

4. Preventing Harm to Oneself (Legal Paternalism)

   • Justifies laws that protect individuals from self-harm (e.g., drug laws, seat belt rules).

5. Expressing and Enforcing Morality

   • Reflects and reinforces shared societal values (e.g., child abuse, animal cruelty laws).

Summary offences

• Minor offences which summons accused to court without delay

• Max. sentence = 2 years less a day and/or $5000 fine 

  • exceptions apply (i.e./ max 6 months)

• All provincial offencesMinor offences which summons accused to court without delay

• Max. sentence = 2 years less a day and/or $5000 fine 

  • exceptions apply (i.e./ max 6 months)

• All provincial offences

Indictable offenses

• Serious / major offences

• Max. penalty = 2, 5, 10, 14 or life in prison

• Min. penalty = outlined in C.C.C. (not up to

the judge)

Hybrid offences

• a.k.a. Dual Procedure Offences

• Crown determines if charge is summary or indictable

• Treated as indictable by police until charge is laid in court

What is a crime

Actus Reus (guilty act) + Mens Rea (guilty mind)

• Both elements must occur at the same time

• The Crown must prove both beyond a reasonable doubt

Actus Rea

• A voluntary action, omission, or state of being that violates the law

• Can include:

  • A physical act (e.g., theft)

  • A failure to act when legally required (e.g., not assisting in childbirth)

  • Must be identified in the Criminal Code

Men’s rea

• Intent

• General Intent: Intent to commit the act (e.g., manslaughter)

• Specific Intent: Intent to commit the act and cause a specific result (e.g., first-degree murder)

Motive v intent

• Motive is the reason for the crime, but it is not proof of guilt

• Motive may be used as circumstantial evidence only

Subjective standard of intent

• Did the accused know the consequences of their actions?

• Harder to prove

  • Case: R. v. Martineau

Objective standard of intent

• Should the accused have known the consequences?

• Compared to what a reasonable person would have foreseen

  • Case: R. v. Vaillancourt

Men’s Rea: Knowledge

• Knowing certain facts that make the act a crime

• Example: using a revoked credit card

• Ignorance of the law is not a defence

Men’s rea criminal negligence

• Reckless disregard for the lives or safety of others

•  Example: leaving a loaded gun near a child

Men’s rea recklessness

• Consciously taking an unjustifiable risk

• Example: driving without required prescription glasses

Wilful blindness

• Choosing to ignore the likely consequences of an action

•  Example: agreeing to carry a package across the border without asking what’s inside

•  Cases: 

  • R. v. Blondin

  • R. v. Briscoe

Liability offences

regulatory, less serious, and not found in the Criminal Code. 

They focus on protection rather than punishment and carry lighter penalties. Mens rea is not required.

Types of liability offences

• Strict Liability Offences

  • Only actus reus needs to be proven.

  • Due diligence is a valid defence (i.e., reasonable care or honest mistake).

  • Common in negligence cases.

• Absolute Liability Offences

  • No defence accepted.

  • Once actus reus is proven, the court must find the person guilty.

  • Example: driving without a licence.

Criminal harassment prohibited contact

• Repeatedly following the person or someone close to them

• Repeated communication (direct or indirect)

• Watching or staking out their home, workplace, etc.

• Threatening behavior towards the person or their family

Criminal harassment punishment

• Indictable offence: up to 10 years in prison

• Summary conviction: lighter penalty

Criminal harassment

• Factual innocence

• Lawful authority

• No reasonable fear

• Lack of intent

• Mistaken identity

• Charter rights violation

incomplete crimes

• Usually, a crime requires a completed actus reus.

• But Section 24(1) of the Criminal Code says:

• If someone intends to commit a crime and acts toward that goal, they can be guilty of an attempt, even if the crime is not completed.

  • “Preparation alone is not enough for an attempt” there must be a clear step toward committing the crime.

Conspiracy

When two or more people agree to commit an unlawful act or a lawful act through unlawful means.

Aiding

Helping someone commit a crime.

Abetting

• Encouraging someone to commit a crime.

Counselling

• Advising or persuading someone to commit a crime.

Accessory after the fact

• Helping someone escape or avoid arrest after the crime.

Culpable homicide

Criminal — person is responsible for the death (e.g. murder, manslaughter, infanticide).

Non culpable homicide

• Not criminal — usually accidental or legally justified (e.g. self-defence, acts of war, executions). - government ordered, self-defence, accident

Miscarriage of justice

• when the justice system fails in the sense that someone is found guilty and punished for a crime they didn’t commit. 

• Miscarriages of justice tend to happen due to false evidence or confessions, un-recorded evidence, and many more. 

1. In today’s society, why are individuals wrongfully convicted?

• Unreliable witnesses

• False evidence

• Mistakes in the original investigation

• Biased jury

• The accused being pressured into giving false confessions

• The accused being pressured into pleading guilty

• Lack of evidence (physical, forensic, etc.)

• Discrimination

Mental Disorder and Criminal Responsibility General principles

• Criminal responsibility requires the ability to form mens rea (criminal intent).

• A person cannot be held responsible if they were incapable due to a mental disorder.

• Courts rely on medical expert testimony to assess mental disorder.

• Mental disorder is a legal term, not strictly a medical one.

Fitness to stand trial

• • Assesses mental state at the time of trial.

  • The accused must:

    • Understand the nature of the proceedings.

    • Understand the possible consequences.

    • If unfit, the trial is delayed until treatment restores fitness.

Not criminally responsible on account of mental disorder

• Focuses on mental state at the time of the offence.

• NCRMD applies if the accused:

  • Did not understand their actions, or

  • Did not know their actions were wrong.

  • Reverse onus: The defence must prove NCRMD.

    • Example: Psychopaths, while lacking remorse, often still understand right and wrong and thus are not NCRMD.

After Being Found Unfit or NCRMD:

• The individual is sent to a mental health treatment centre instead of prison.

• They are held for treatment and public safety assessment, not punishment.

• Release depends on whether they pose a danger to society.

Automatism general principles

A crime requires voluntary conduct (actus reus).

If actions are involuntary (e.g., unconscious state), no actus reus exists — thus, no crime.

Key case: R. v. Parks (sleepwalking defence).

What is automatism

legal defence where someone acts without conscious control.

If proven, the person is not criminally responsible.

Recognized by Canadian courts since 1977.

Automatism challenges

Consciousness levels vary, making it hard to judge true involuntariness.

Courts must assess how much control the person had at the time.

Examples of accepted automatism

Carbon monoxide poisoning

Pneumonia

Stroke

Hypoglycemia (low blood sugar)

Sleepwalking

Psychological blows (extreme shock)

Reflex actions

Mixing sleep aids (like Ambien) with alcohol

Examples of rejected automatism

Epileptic seizures

Hardening of the arteries

Emotional distress from a romantic breakup

Intoxication general principles

• person who is intoxicated may still physically commit a harmful act, even if they don’t realize it due to their level of intoxication.

• Voluntary intoxication does not excuse criminal behaviour in most cases because the person chose to become impaired.

• The law often views voluntary intoxication as a form of recklessness, which satisfies the mens rea (criminal intent) requirement for many offences

Intoxication key cases

• R. v. Daviault, 

• R. v. Sullivan  

• R. v. Chan

• R. v. Brown.

Intoxication vs. Automatism/Mental Disorder:

• Automatism and mental disorders are not self-induced.

• Intoxication is voluntary, so the law typically holds the person morally responsible.

Moral blameworthiness

• Even if unaware of their actions, intoxicated individuals are often still blamed because they chose to get drunk/high.

Necessity general principles

• Is a common law defence ( not listed in criminal code)

• Applies when an individual breaks the law to avoid greater harm

• The law recognizes that an extreme circumstance may justify a criminal act if it prevents incoming harm

• Key case: R. v. Latimer

Necessity limits

• It cannot be used if the person created the dangerous situation for themselves

• It is a rare and strict defence, only used in an emergency situation where a person breaks the law to prevent greater harm.

• It cannot be used if the crime was avoidable or planned

When necessity would work

• Natural disasters (e.g. trespassing in a wildfire)

• Medical emergencies (e.g. driving without a licence to save someone’s life)

• Situations that involve immediate threats to “life, liberty, or safety”

When necessity wouldn’t work

• Economic hardship (e.g. stealing food / other due to poverty)

• Situations where the individual had the time to choose another option

• Breaking a law for convenience

Self defense definition

A person may use reasonable force to defend themselves or others if they believe force is necessary to prevent harm.

Self defense legal test a. 34

1. Belief: that force or threat is being used against them.

2. Purpose: was to defend or protect.

3. Response was reasonable: under the circumstances.

R. v. Cinous  

• Accused killed someone he feared would kill him first.  

• Court said the fear must be based on reasonable grounds.

• Self-defence rejected due to lack of imminence and pre-emptive action.

R v Stanley

• Stanley shot an Indigenous man (Colten Boushie) on his property.  

• Claimed the gun went off accidentally.  

• Found not guilty, raising controversy over how self-defence and firearm mishandling are interpreted, especially in racial contexts.

Battered woman syndrome definition

• A form of self-defence specific to abused women who kill their abusers after long-term physical and psychological abuse.

• Introduced as an expert testimony to help the court understand the mental state of the accused.A form of self-defence specific to abused women who kill their abusers after long-term physical and psychological abuse.

• Introduced as an expert testimony to help the court understand the mental state of the accused.

Battered woman syndrome case

R v Lavalee.

R v lavalee case

• Lavallee shot her abusive partner in the back as he left the room.

• Court recognized BWS and accepted that fear of death can be real, even if the threat wasn’t immediate.

• Opened the door for psychological context in self-defence claims

Mistake of fact

Occurs when a person misunderstands a fact, and that misunderstanding negates criminal intent (mens rea).

Mistake of fact case

R v Savoie

R v Savoie case

• Man thought his partner was dead when he engaged in disturbing actions.

• Court examined whether he genuinely believed what he thought was true.

• Mistake of fact can be a valid defence if it's honest and reasonable.

Mistake of law

Not a defence in most cases. Claiming “I didn’t know it was illegal” does not excuse criminal behaviour.

•  Exception: When the law is misleading or the person was misinformed by an authority.

Mistake of law case

R v sutur

R v sutur case

• Accused didn’t provide a breath sample after a crash where a child died.

• His lawyer wrongly advised him not to comply with the police.

• Supreme Court reduced sentence—mistake of law not a defence, but can be considered in sentencing.

Provocation

A partial defence that can reduce murder to manslaughter.

• Must be a wrongful act or insult that would cause an ordinary person to lose self-control.

Provocation legal test

1. Was there a sudden and unexpected provocation?

2. Did the accused respond immediately and lose control?

Provocation case

R v Tran

R v Tran case

• Tran killed his estranged wife’s new partner in a jealous rage.

• Court held provocation didn’t apply— anger and jealousy don’t justify violence.

• Reinforced need for objectivity in applying the “reasonable person” standard.

When law enforcement encourages or induces someone to commit a crime they otherwise wouldn’t commit.

Entrapment

• Legal Test (R. v. Mack):

1. Was the police conduct oppressive or an abuse of power?

2.  Did the police provide an opportunity to commit the offence without reasonable suspicion?

R v Mack case

• Police recruited an individual into crime through manipulation and pressure.

• The Supreme Court ruled entrapment had occurred— abuse of police power invalidates the charge.

Duress

A person commits a crime because they are forced to be under threat of death or serious harm.

• Meant to recognize coerced action, not free will.

R v Ruzic

• Ruzic brought drugs into Canada under threat from criminals.

• The Supreme Court ruled the common law defence of duress must be available even when not in Criminal Code, for fairness under the Charter.

Duress key conditions

• Immediate threat of death or bodily harm.

• No safe way to escape.

•  The threat must be serious and ongoing.

Cultural defence

Not a formal defence, but cultural background may be considered in sentencing or to provide context for the accused's actions.

R v Ly

• Accused had difficulty adapting to Canadian norms; the court considered cultural context in sentencing, not as a full defence.

R v Shafia

• Honour killing" of family members by the Shafia family.

• The Court rejected cultural justification, emphasizing Canadian law over cultural norms.

• Cultural background cannot override Charter rights or legal standards.

Penology

study of sentencing and prison discipline

Victim impact statement

• Psychological effects

• Financial effects

During sentence hearing, they can bring up:

• Criminal record

• Pre-sentence report findings

• Nature and severity of crime

• Offender’s background

Diversion programs

alternatives to the prison system

Absolute discharge

• No restrictions

• No conviction record

Conditional discharge

• Minor restrictions

• No conviction record

Suspended sentence

• Minor restrictions

• Conviction record

Suspension of privileges

• Revoke certain privileges

• Liquor licence, driver’s licence

Restitution

• Money paid to the victim(s)

• May involve work

• Only used in bodily injury offences

• Offender and victim can meet to work out restitution

Community service orders

• Repay debt to society, feel apart of the community

• May vary depending on your skills

• Charities/community benefits

Deportation

• Offender must leave the country

• Cannot be a Canadian citizen

• Government asks in serious offences

• Can be deported to face trial in another country if Cdn citizen (extradition)

Fine

• Money paid to the court/government

• Offenders can work for credit to pay off the fine

Probation

• Up to 3 years in addition to any other punishment

• Report to probation officer

• Restrictions (no alcohol, drugs, firearms, etc…)

• Break it?  Breach of probation plus original offence

Conditional sentencing

• A term of imprisonment is imposed, but the offender serves the sentence in the community

• Restrictions 

• Cannot be given if: 

  • mandatory minimums exist

  • sentence is 2 years or more

  • offender would be a danger to community