LAWS 2302 Course Notes - Criminal Law

Assignment Guidance: - Work under the perspective of an indictable offence. - No citation or bibliography required; simply name the case.
- Cases from SCC, OCA, QCA, BCCA are persuasive.

Sentencing Overview
  - Sentencing Definition: The process that leads to punishment.
  - Punishment Definition: Consequence for criminal conduct.
  - A sentencing hearing may involve:
    - Calling of witnesses from both sides.
    - Victim Impact Statement (VIS): A statement from the victim on how the offence impacted their life.
      - Victims can read their VIS in court.
      - The accused has the right to cross-examine the VIS.
      - The accused may also call evidence.

A biography drafted by a probation officer that includes:
  - Interviews with the accused and their employers.
  - Collection of information like school transcripts and paystubs to gather background information about the accused.
  - Shared with Defence, Crown, and Judge for submissions during sentencing.

Bill C-41,
- References S. 718 CC: provides guideline principles for judges in sentencing.
Stare Decisis Principle: Like-cases should be judged alike.

Federal Penitentiary: Sentences of 2 years or more.
- Inmates can be sent across Canada and have access to rehabilitation programs like skill development.
Provincial Jail: Sentences of less than 2 years.
  - Probation:
    - Defined under S.743.1, some prefer federal penitentiaries for better conditions compared to provincial jails.

Types include:
  - Jail
  - Probation
  - Fine
  - Conditional discharge
  - Absolute discharge
Conditional Sentence (s. 742)
  - Example: R.v. Proulx:
    - Can be given for sentences of 2 years or less; allows serving the sentence at home under strict conditions including attendance in community programs.
    - Significant cost savings ($70,000 - $100,000+ per year for housing an inmate).
  - Conditions include limited outings (3 hours a week) and must comply with no violence clauses.

Allows sentences of 90 days or less to be served during weekends or weekdays to maintain work and family responsibilities.

Concurrent: Offender serves multiple sentences simultaneously; only the longest sentence is served.
Consecutive: Offender serves one sentence after another.
  - Example of concurrent and consecutive:
    - 268(2) – Aggravated assault: 6 months
    - 344 – Robbery: 6 months
    - 88(1) – Weapons charge: 3 months
    - 833.1 – Breach of probation: 2 months.
  - Possible outcomes include sentence served as concurrent (6 months total) or consecutive (17 months total).

Maximum probation period is 3 years.
Typical time is 12 months overseen by a probation officer with conditions (e.g., regular meetings, counseling, no alcohol).
Breach of probation leads to new charges and increased penalty (15-30 days).

Fines (s. 734):
- Judges may impose fines for property-type offences where no direct harm to individuals was done.
Restitution Orders (s. 738):
- Equivalent to a judgement in court, remains enforceable until fully paid.

Conditional Discharge (s. 730):
- Max period: 3 years, resulting in no conviction if conditions are met.
Absolute Discharge (s. 30):
- If it serves the best interest of the accused and public, the charge may not result in a criminal record.

Young persons (12-17 years) have different treatment under law.
Key sections:
  - S.38: Guidance for judges in considering youth cases.
  - S.39: Conviction circumstances.
  - S.42: Punishments available for youths.

S.718: Framework for judges considering:
  - Denunciation and Deterrence.
  - Specific Deterrence: Individual punishment to prevent re-offending.
  - General Deterrence: Message sent to the public to deter crime.
  - Separation from society, rehabilitation, and harm repair must be weighed.
  - Accountability: Offenders must repair harm where possible.
  - Proportionality: Sentence should align with the severity of the offence and personal history.

Courts must consider special treatment of Aboriginals as per R. v. Gladue, addressing their unique circumstances.

Both accused and victims may speak during the sentencing process.
Role of the Victim Impact Statement (VIS):
- Significant during trials involving serious crimes like homicide or sexual assault.

Crown must prove all elements of a criminal offence beyond a reasonable doubt.
Disclosure Requirement: Crown must provide evidence to the Defence, as established in R.v. Stinchcombe.

Strict Liability: Offences where the Crown does not need to prove intent; due diligence can act as a defense.
Absolute Liability: No defense exists, the offender is liable immediately.

Midterm Examination: 1.5 hours, 50-70 multiple-choice questions covering Chapters 5-6.
Ensure thorough understanding of the concepts, legislation, and case law.

Self-Defence: Rights allow for reasonable force to repel immediate threats.
Necessity: Defence when someone acts to prevent greater harm under immediate peril conditions.

This course requires continuous review of cases, legislations, and practical applications.
Understanding each topic in detail, especially regarding defendants' rights and judicial processes, is crucial for successful navigation of the legal system.