Crm 2300

1. Introduction to the Canadian Common Law

Common Law as Discursive Problem Solving

Class 1

Main goal of the course: 

-       To help you understand both how the criminal works and why it works the way it does

-       To unpack the underlying assumptions

Four characteristics criminal law

1.     Criminal law is discursive

2 elements of this

1. The law is made up of a series of specific cases of stories that focus on a social problem between people

   1. We rely on a discursive system because we want to resolve conflicts through talking, not just violence

   2. The criminal process, as it involves social actors. The police, the victims, defendant, defence counsel, crown attorney and judge (social action), Their role is to interact with each other

2. The criminal law is a fantastic window for us as society, It concretizes our social values and allows us to analyze them. It is also a great window into politics and the power relations play in society

Since it’s discursive, it also gives us a window into the politics of the day and who has power

e.g. R. v. Dudley and Stephens (1884)

            Facts:

• John Henry Watt decides to buy a yacht (minionette), 

  • want to get it to sydney australia

  • Hires dudley (captain)

    • He hires stephen (mate) - Brocks (able bodied seaman) - Parker (cabin bay)

  • John doesn't do a full series of repairs to save money 

    • It ends up sinking because of its bad seaship conditions\

  • On day 4 they manage to kill a sea turtle

  • Day 8 they are suffering because they have no more food or water (drink urine)

  • Start talking about cannibalism

  • Day 14 parker falls ill

  • Day 19 Dudley, Stephens and Brocks start talking about cannibalism again and are thinking about killing parker to eat him 

    • They take a vote and majority rules

      • They kill him and eat him 

  • Day 24 they are picked up at sea

    • Dudley didn't hide the fact that they killed Parker

      • Kept his bones to give it to his family to bury them

To understand this case we need to consider the time period

• It is London 1884

  • Second industrial revolution

  • Period of huge labor unrest

  • Tensions between the working class and the elites

Legal issue

• whether or not the court should adopt a notion of necessity as a defense (can necessity be a valid defense?) What is the reasoning? 

Outcome

• Yes there is a valid defense of necessity but it doesn't apply to Dudley or Stephens (reasoning isn't intense enough) so they are convicted of murder

• Sentenced to hang 

• There is an outrage in the working class which forces the government to commute the sentence -  they won't be hung and are sentenced to 6 month in prison instead 

This is an e.g. of how politics and power play out because:

Copy out the quote on the board as an illustration of this section:

 Rather than see the common law as a fixed body of rules and regulations, it is preferable to view it as a living tradition of dispute resolution. Because law is a social practice and society is in a constant state of agitated movement, law is always… a messy episodic and experimental effort to respond to the contingent demands that the society brings forward… Untidy exercise in human judgement… (Hutchinson, 2011, p, 7-11)

2.     Criminal law is rooted in history 

• Rooted in England in the 17th and 18th century 

• Starts in 1066  with the Norman Conquest (Normans are french) 

-       Britain was an island at the time were divided into independent kingdoms. The Normans (William the Conqueror decide to get into ships and conquer those kingdoms. All English enemies unify under Harold. 

-       William the Conqueror defeated Harold and the other English kings, giving him the monopoly over the use of force (MOUF)

- This is a common problem of geopolitics, someone can want to conquer a land, but will have trouble controlling it. 

William the Conqueror used the common law to legitimize the violence as lawful authority, hold court and dispute justice

-       William the Conqueror used the common law to legitimize that MOUF by [doing what?]

-       Over time, to ensure the King’s justice was perceived as fair and gave people certainty, two doctrines developed

o   Doctrine of precedence

• Defined as when a conflict arises, you should look at similar conflicts in the past, and you should decide the content dispute in a way that is consistent with past similar disputes. You can create rules that can apply to future similar disputes.

• The important thing to remember is are the seminal enough to conquer? If yes, this doctrine can apple to te case 

• In some cases, people demand appeals for a case because they weren't happy with the decision. This impacts the decision to create appeal courts, which create a hierarchy of decision making 

o   Doctrine of Stare Decisis

• Lower courts are bound by the decision of higher courts

• When the English come to North America they bring the Common Law with them

• In the 1600’s, the English and the French extend 

-       1700s common law influenced by liberal thinking (see 4. below)

-       When British first came to Canada, negotiated with indigenous peoples nation to nation leading to treaty rights

-       Common law brought to Canada by English settlers

-       With colonization, used the common law as a way to assert control over indigenous territory and (conquered) French territory

-       Although the Criminal Code codified the common law rules in 1892, still the common law system as judges [do what?]

• Quebec keeps its civil lawn and all the rest of the territories of Canada are Common law for private and public matter

3.     Criminal law is political

-       Criminal law legitimizes state’s MOUF/violence as authority (this is the topic of the next 3 lectures so we’ll fill this part out as we go)

4.     Criminal law is based on the liberal principles

Review the liberal principles in the course outline and keep a copy nearby during c

Liberal Principles, Crime Control and Due Process

Class 2

• Penny reading gives us two important insights to better understand the role of the criminal law

  • To better understand the criminal law…

Role of criminal law

1. Restricts executive power (the government, the administers, the justice)

1. The criminal law is designed to restrict what the government can do especially when thinking about MOUF (monopoly over the use of force)

• Rules of law - everybody has to follow the law, with no exceptions

  1. Just because you are the MP doesn't mean you get to break the rules…

1. e.g. Trump and USSC on presidential immunity 

Restrict judicial power (due process rules) 

• Directly applied to judges. This is because judges are the ones who since…

  • Since the court use the mouf  to punish transgressors, the criminal law imposes really strict rules of procedure to make sure that the monopoly over the use of force isn't abuse

• Are designed to protect all citizens but especially citizens that are at risk of losing their liberty (defendant)

  • The person who is most at risk is the accused 

  • Due processes are designed to protect the accused against the states MOUF

• describes two value systems or models that compete for attention in criminal justice system

• Crime Control Model 

  1. the criminal justice system is to repress crime by managing it by a managerial approach 

  2. (NOT About crime prevention) 

  3. Assume crime will happen so we should manage it efficiently, no matter what someone is going to commit a crime

  4. There is a big emphasis on efficiency

  5. Police screen out innocent people early on in the process

  6. The police shouldn't worry too much about illegal or unconstitutional collection of evidence as long as the evidence supports that someone committed a crime

  8. Want to convict and punish quickly, therefore appeals are a waste of time. 

• Due Process Model

  1. It assumes that the criminal justice system is there to protect vulnerable individuals from the overwhelming power of the state

  2. Does this by enforcing procedural rules that limit what the state cab di and protects against any situation when the state can abuse its power

  3. The criminal justice system is to hold the state in the police to account their use of power

  4. Not enough to prove that the accused is guilty, you have to show that the police, the prosecutor, and the judge all followed the rules, if any of the rules were not followed, the accused must be let go…

Relationship between models and the liberal principles (LP)

• Both not about preventing crime but about punishing 

• Both models assume that the individuals is rational

  • The reason you punish is because it will deter the individual because they can rationalize that…

• Due Process Model all about LP

  • Because both of them assume that the police are dangerous

• The job of the criminal law is to set out these procedural rules because these are the ones that can punish the state or the police if the break them

• Even though they share some characteristics, how you view something will depend on which model you’re using

• e.g. Miami Dolphins wide receiver Tyreek Hill on way to game 

  • “When we tell you to do something, you do it, not what you want but what we want” -police said setting up their authority…

https://www.cnn.com/2024/09/09/sport/video/bodycam-footage-nfl-player-tyreek-hill-arrest-digvid

Why is the common law practical way to reduce the risk of unchecked power? (MIDTERM ESSAY QUESTION) 

• CCM vs DPM?

• Charter in 1982 entrenched DPM

• Legal rights = minimum constitutional requirements for police and judges

• s.7 - life, liberty, security of the person – fundamental justice

• s. 8 – unreasonable search and seizure

• s. 9 – no arbitrary detention or imprisonment

• s. 11 – legal rights

  • informed of charge

  • tried within r time

  • self-incrim

  • presumption innocence

  • trial by jury for serious offences

  • double indemnity

• s. 1 – saving provision to balance legislative power to make crim law and commitment to due process - Oakes

• s. 15 – equality rights

Rowe J’s article 

• substance versus process [differences and why process matters]

• Contrasts classic anti-democratic e.g. Mao 

with Nelson Mandela 

• Crim law a practical exercise to reduce risk of unchecked power

• Common law relies on and 

• practical not ideal

• LP/due process closely tied to democracy 

McLachlin, J – “it is to the control of the superior power of the state vis-à-vis the individual who has been detained by the state, and thus placed in its power, that s. 7 and the related provisions that follow are primarily directed.”

Wilson, J – Charter rights were “designed inter alia to circumscribe the coercive powers of the state within the boundaries of justice and fairness to the individual. They are the most formidable defences the individual can marshal against abuses of state power.”

Abuse of Power

Class 3 

“The police are, in effect, the first and main keepers of the integrity and fairness of the criminal justice system … [T]he police have a profound and taxing responsibility to balance individual rights with society’s need for security” (Saunders & McMunagle, 192)

• Due process model : balance individual rights…

• Crime control model : 

“Societies need for security”

• Abuse of power, who the state uses 

  • Its monopoly use of force in an illegal way

    • EX: border patrol officer contains people without reason because they can…

1. Police as democratic interface

• The police are the ones who affects citizens the most if they use their monopoly of use of force

• When the state police follows their legal monopoly use of force and how they interact with the citizens determines if a democratic relationship will remain

  • That relationship is weakened when authority figures and state power abuse their power and jeopardise our democratic society

How police use MOUF determines whether or not we have democratic relationship with state – that makes them the most immediate interface between state and citizen

• [problem for system]

• That’s why criminal law designed to restrict how police use MOUF and to hold them accountable for any abuse of force when they break the rules

2. 2 problems

1. The problem occurs when police role co opted by state for its own political purposes

• EX: 1997  Association for Asia Pacific Economic COoperation (APEC) meeting in BC

• APEC: is an organisation that is interested in promoting trades 

• federal government at that time was interested in trade

• invited Indonesian President Suharto (violent leader, has no respect for human rights) - in 1998 the people rose up and sent him to trial for abuse of his people…

• Personal invite for Suharto to come

• PM decides to have it at UBC - very bad for security reasons; one way in; one way out 

• PM called RCMP for security

• Meeting happens - Suharto's security (his nephew, a known killer) says if anyone embarrassed their leader they will get violent

• “Anti-globalization” movement - know killer going to UBC - thousands of students protests with tents set up everywhere

  • “Human rights road hockey” being played

• RCMP Arrest Jaggi Singh (protest leader) - uses a megaphone

  • They try to calm down the protest and tactic to shut down the protest

• When Suharto arrives, there are even more students gathered with anti-Suharto signs 

• PMO tells RCMP to try and stop the protest before Suharto arrives to prevent his security to get violent with the students

  • The RCMP decides to pepper spray everyone who was standing there to stop them from protesting more

• The state says we have our own economic + political agenda (for a trade deal with Suharto) and use their monopoly use of force

  • Violating the rules and the democratic relationship with the citizens - cooping the power for your own agenda

2. Conflict between cop culture and police’s job of protecting “integrity of the system” – due process model and importance of civil rights

• When you look at what police do on a regular basis, they're work is more like community helpers (in Canada, police jobs aren't even on the top 10 most dangerous jobs list)

  •  They are the ones to respond when the citizens need help

  • Their training doesn't focus on how to deal with community helping

    •  focuses more on use of force (surveillance, shooting, explosives, movement/cover)

1. Training reinforces that their mission is dangerous, policing is dangerous and therefore i must use force

2. Culture requires absolute loyalty and a willingness to assist you fellow officer without hesitation

3. Training creates an “us” vs “them” perspective

   1. citizens/criminals <police - screening our who is criminal who is not = bias + racial profiling + systemic discrimination

• Criminal law does not want this culture

  • Criminal law wants to keep the state and people in authority accountable and not abuse their power, keep the democratic relationship and ensuring citizens rights are kept

3. Problem collide during political protests

1. Legal forms of protests

   1. Vote

   2. Send letter to MP

   3. Organize 

2. Civil Disobedience 

   1. There is a law and you believe a law is morally wrong, so you break that law and accept the consequences

3. Illegal 

   1. Occupying public/private space

      1. Crossing the line from legal to illegal 

         1. EX: shopping malls, you are allowed to be on that property, but if you “disturb” the public… and asked to leave, if you dont you are trespassing

   2. Violence to destroy property or attack state agent (usually police)

   3. Most serious = armed rebellion - ex: january 6 in washington

Three examples to illustrate this - about criminal law legitimize the states authority

1. Legal protest

   1. Montebello 2007

      1. Group of middle aged citizens gathered outside

      2. Meeting occurring with US, Can and Mex leaders 

      3. Gathered outside to picker, then 3 men join and start to get aggressive

         1. Citizens realize they are cops

      4. Abuse of power because those police officers were trying to ignite and start something in a peaceful protest so they could arrest them

      5. Notion of us vs them

         1. Loss of legitimacy (state’s legitimacy)

2. Ex of Civil disobedience - Ottawa Day of Protest 2020

   1. Association with BLM, but more with Indigenous protests and their relationship with the government

   2. Block the corner of laurier

   3. Defund the police

      1. Police are going around having conversations with protesters 

   4. Police ask them to leave because they are blocking traffic and what they are doing is an illegal protest

      1. They stay till midnight and arrest 12 people 

      2. Aren't using force, treating people like they have rights and have the right to protest, respectful and are doing their job the way they’re supposed to 

3. Illegal protest - Kenosha, BLM 2020 USA

   1. Plays out in avery american way

      1. We see the dramatic impact that it has on the legitimacy of the state

   2. George Floyd arrest and murder 

      1. Ashville, NC

   3. Huge protest 

      1. Protesters concerned that pepper spray is being used 

      2. Want to set up a medics tent (green zones) 

      3. Mayor sets up curfew

      4. Medics set up tents and are allowed to stay there past curfew

         1. Swat team come in and destroy all the water bottles protesters were using to clean there eyes from pepper spray, take down the tents, destroy all their equipment 

      5. This leads to the Kenosha riot, illegitimate use of force against George Floyd and protesters - racist actions

      6. Kyle Rittenhouse. 17 year old, goes to the protest with a rifle

         1. Police are caught on camera, driving by a group of people including Kyle (all armed), police hand out free water bottles saying “thank you for your support we appreciate you guys, we really do” then the cops drive off. 

         2. Shortly after, the group of guys walk by another group of people and that group becomes furious that they have guns. They are chased and attacked, one person grabs someone's gun and the gun accidentally goes off and kills the guy. Someone grabs Kyle's rifle but then Kyle shoots the other guy and kills him too. Someone then walks towards Kyle and he also kills him. 

            1. Kyle is charged with two counts of homicide, one count of attempted homicide and reckless endangerment

            2. Kyle argues that he was being chased and responded in self-defence 

               1. Jury agreed and was let off - impact on the states legitimacy

               2. ⅔  of republicans through a poll agreed that Kyle was acquitted and should not be charged 

               3. ¾ of democrats through a poll said he should be convicted 

            3. Monopoly use of force through the police - use violence to support their ideologies + police are playing out 

            4. Videos where police officers are policing a protest (illegal protest) and are having a conversation telling people to stay on one side of the line because they don't want to have to get violent…

               1. Police are seen kneeling to the protesters - symbolic indications that they won't use violence, act of sympathy, and police are also protesting and disagree with who the state (police) handled the George Floyd situation

               2. Police are standing on the line between protecting the democratic process, not just ensuring no violence and safety - state and citizens …

                  1. Though CCM - you don't have loyalty towards police and protect fellow officers no matter the circumstances

• Notions of “us” vs “them” - police are the good guys and they are bad guys/criminals “them” are protesters…

Accountability

• Repairing the harm that the abuse of force did to the states legitimacy

Class 4 

Methodes

1. Procedural

   1. Trailer blood case… - police abuse their monopoly use of force, and that will bring the administration of justice into disrepute

      1. The state uses its power to exclude that evidence, Court would rather have a guilty guy acquitted than violate those liberal principles, but if not, the system falls apart and things can happen without accountability

   2. Difficult method to use due to

      1. Complaints is open to retaliation

      2. You need the crown to cooperate

         1. Placed in an awkward position

         2. They work with the police and are now told to go against this partnership

2. Criminal Prosecution

• Used to work with the police officers as a team so dealing with situations where the police is the one they are against is difficult

• The burden of proof is very high when the accused is the police

• The criminal prosecution will not change the police culture

• Criminal prosecution is what the community cries out for

  • There is a call for retribution

  • Because the public is so angry the police will get prosecuted with the worst possiblecrime but it is very hard to prove

  • Even though the criminal prosecution is very common, its is very often unsuccessful 

3. Disciplinary hearings

• Internal review 

• Be done within the police force or within public complaints commission SIU

  • Public complaints commission dont work that well to hold police accountable

• Seen as victimising the police officers, when a complaint is laid

  • The police as a whole to share the view that the cops are the good guys and the criminals are bad

• The law gives the police all sort of due process protection

  • Very hard to prove the police “guilty” and be held accountable

  • Law is always trying to maximize liberty and follow the liberal principles

• Vast majority of complaints are dismissed

4. Civil Actions

• Sue somebody for it

• Problem about the state

• Trying to legitimize the monopoly over the use of force 

  • To take away the accused liberty

  • Civil matter: problem between the state, defendant and the accused

    • The state uses their MOUF to take away the accused’s liberty - you put someone in jail you are using your MOUF, so you have to make sure you are using it correctly

• Problems between individual (one individual has a problem with another)

  • Someone has lost something (want to be in the position they were in before)

    • Make up for it by paying for “the damages” (money)

• Proof is based on balance of probabilities : are 50% 54% sure what happened 

  • Beyond reasonable doubt are you 99% sure that thats what happened?

• Civil actions against the police are more likely to succeed than criminal prosecutions and disciplanary heatings

  • they can take years, they are time consuming and expensive

• The police officer is employed by the police service

  • Anything that any employee does in their course of employment they do as an agents of the employer

    • The employer is legally responsible for the actions that his employees did

  • The police service ends up paying the money

  • It doesnt deter the police officer as he isnt paying out of his own pockets…

• Jane Doe case - Doe vs Metro Toronto board of Commissioners of Police (1986)

  • Lives downtown toronto, summer, has a balcony, no ac, shes in bed with just a t-shirt on 

  • A guy climes up her window goes into her place and rapes her

    • She realizes that he has done this multiple times to several different women in the area

  • The police decided to not advice the public about him because they wouldnt be able to catch him until he rapes more people

  • She was the 3rd or 4th victim

  • The police could have warned people to close their windows 

  • She was furious, the police dont care about the people, they just arrest criminals

  • She sued the officers involved and the commissioner civilly

  • She sues the for negligence (because they failed in theur duty to warn the public) and breach of Sec. 7 of the Charter (life, liberty and freedom)

  • She goes to court and they say the police force is liable, and they are required ti pay her 175k in damages 

    • After that all the forces in the country changed theur policies holding the state accountable for the abuse of force

    • It wasnt a class action, feminist organizations helped her go through with the finances and procedures of the court

Trial as Social Ritual - Legitimizing MOUF : Criminal Trial 

• The courtroom is “a symbolically organized space that is designed to reproduce, through repeated visual rituals, a collective obedience to authority” (Gabel + Harris, 1983)

• Similar to a wedding venue 

  • Between social rules and space (space is designed to create certain type of relationship)

    • Symbolically organized and its purpose is to reinforce authority

  • The trial is a morality play that acts out a certain relationship between the citizens and the state

  • It is typically to justify and legitimize the states authority over the use of violence against the accused and translate that violence into some notion of the rule of law 

    • So the state is seen as legitimate when they use its MOUF

  • We go through this ritual to create something called justice to create freedom, social order, and rule of law

1. Reproduction of police authority

2. In symbolically organized space

3. Through repeated visible rituals 

Class 5 

Class 6 

Role of Police 

Midterm:

• The amount of laws that actually restrict police officers - Criminal law is written with a Due Process point of view

Role of the police officer:

• Simply to initiate the trial process, not crime prevention - they see conflict and they start the process of the trial ritual

• Custody is tricky to justify

  • 4 conditions

1. They can't establish the person's identity - without knowing their identity - they need to send the right person to trial 

2. They need to preserve evidence - release them because of liberty you can't have a trial without evidence

3. To prevent further offences 

4. Reasonable to believe that the accused will fail to appear in court - because the trial needs that person to come back - there is a criminal prevision that says if you fail to appear you will be convicted of a crime… 

• If one or more of these things are true, then they are allowed to be detained

Bail section 515

• assumption that you release because liberty is very important

(1)

• Release because of liberty 

• Detained if the Crown Attorney can prove to be detained 

(10) 

• Primary ground - if they fail to appear in court

• Secondary ground - worried if they will reoffend or interfere with the administration of justice (means the trial might not happen)

• Third ground - release them unless decrease in the public’s confidence in the administration of justice

• A reverse onus if defendant is already in bail

• Options for release:

  • Go from least onerous to most onerous (least restriction of liberty to most)

    • Sign a promise to appear (the accused signing it)

    • Asked to enter in a recognizance (accused must sign to say that they have property $$) signing it is to make sure if they fail to appear they can make them pay the money

      • Only the defendant signs 

      • Or a surety (a person and not the accused signs) if THEY sign then they are saying that if the accused does not show up then THEY will pay for what needs to be paid for 

      • No conditions attached to it or it can have conditions attached

        • Asked not to go to a particular place

        • Stay out of a particular area

        • Stay away from a particular person

        • Not allowed to drink/use

        • You need to take your meds

    • There is such a thing as failing to comply with the court (meaning if they put conditions where you cannot see you wife until trial and show up to the bail trial with your wife that is a fail to comply)

    • If all of these don't work - you will have an automatic detention, but you will still have a bail review hearing

Role of the Trial Judge, Crown Attorney and Defence Council - people in the triangle at the front of the courthouse

1. Inquisitorial (civil law) vs Adversarial (common law) systems

   1. Role of TJ, Cr + Def csl

Inquisitorial (civil law)

• Much older 

• Determine what crimes are in an apriori way 

  • Write them all down in a code that lists what people are not allowed to do 

• Role of the criminal justice system is to establish the facts of what happened 

• The trial judge's job is to investigate - gather all the evidence - find out what happened (work with the police and prosecutor) - creates a file of documentary evidence 

  • They are working TOGETHER

• Emphasis is on text and experts opinion

• All evidence is admitted 

• The accused is guilty because if he wasn't why would the police have arrested him 

• Burden of proof on the accused is to prove innocent 

• More concerned about Public order - it is better to conflict 9 innocent person than let 1 guilty person go free

Adversarial (common law)

• Define crimes after they occur - post de facto

• You don't make up rules 

• Magna Carta 1215

• Rule of law - king has to follow the law just like everyone else 

• Property - police

• Jury of your peers

• Linked between criminal law and democracy

• Role of the criminal justice system is to protect the individual from sate abuse

• Rational self interest - the persons that are best suited to get at what happened are the parties themselves 

  • They are NOT working together - working in different teams as adversaries 

  • Their job is to present a one sided story to the trial judge (trial judge job is to be neutral when listening to the 2 competing stories)  

• Releases not on text but on viva voce evidence 

  • “Expert is just another witness”

• Illegally obtained or irrelevant  evidence is not admitted 

  • Illegal evidence cannot be admitted because that evidence will not be able to be used during trial, it has to be obtained legally the girl in front 

• Accused proven innocent until proven guilty

• Not about public order, it's about liberty - it is better to acquit (let free)  9 guilty than convict 1 innocent 

Class 7

2. Example - Koselem Case 

• Writing assignment notes

  • Academic paper and focus on concepts and not police officers did a bad job or good job

  • Point was to take both processes and apply it - what do i see through each lens/model

  • Not about opinion, but analysis

  • Ensure to pay attention to actual question

  • Use paragraphs - divide into pieces, organize your thinking

  • DP and screening → on paper; crime control model focus on screening; so when police see protests, they assume criminals, and when they saw those guys not protesting, they can quickly screen out that they are not; police assume protestors are in the way and disrupting social security

    • Focus on efficiency which is where screening out comes into play as it is quick and a managerial approach

  • Terms in this context means different things - ex; vulnerable individuals doesnt necessarily mean vulnerable groups (on the margins)

  • *Liberal principles will be on the midterm

Role of the Trial Judge, Crown Attorney and Defence council CONT.

• Trial judge is purposefully separate from CA and DC

• Judge is an impartial arbiter

Part 3. Plea Bargaining

• Why plea bargain if the point of this ritual is to battle and find out what happened through this ritual

• Like a marriage ceremony, the courtroom, there are people who are just working as their day job - day job of both adversaries; crown’s goal is to get throught he list of accused as expeditially as possible with as many convictions as possible, crown is the one who is responsible to ensure they have deal with all the cases they were supposed to deal with

  • Crown’s job is get through their convictions quickly

  • Crown wants as many convictions as they can get

  • Complaints; someone who is a victim of a sexual assault, now a plea bargain happens but just a regular assault, not fair for the victim, but done by the crown becuase they got a conviction and it’s a ‘win’ for them

• Defence council goal;

  • Most of their clients are statistically guilty

  • Their goal; Reduce the consequences of the accused’ actions for the accused

• By bargaining, both defence council and crown can be successful in their day job (DC wants to reduce consequences as much as possible, crown wants a conviction; plea bargain = ‘success’ for both, but for victim??)

• Adversarial system; fighting, arguing

• However, plea bargaining works if all three members of the social ritual rely on trust and is less on judge, an agreement between CA and DC

  • Relationship of trust is essential between the triangle, or it falls apart

  • Trust helps plea bargains to occur and trust that the pleas are fair

• Number of options for plea bargains

  • Sexual assault

    • Pleading to a lesser included offence

    • Sexual assault / simple assault → If the crown can drop the sexaul assault and accused pleads guilty for simple assault (which is a lesser offence)

  • Mutiple charges

    • Ex; multiple b&e, plead guilty to some, so the crown will drop the others

    • Pleading to a smaller number to reduce total convictions, but still guilty with some

  • Plead to sentence

    • Agreed submission as to sentence

    • How long the sentence should be or the type of sentence

    • Bargaining amount of time someone is spending is custody

Role of the Victim

• Minor role in this social ritual

• Victim has almost no role in the trial, unless crown as for them to go to the stand as a witness

• Even the way we identify a problem (ex; R v. D); the process is not between victim or accjused, its b/w crown and defence

• So a lot of work done in criminology to address the invisibility of victims in this social ritual

Part 1. Bernard Goetz Case

• “Subway Vigilante”, New York, 80s, electrical engineer

• 300 violent crimes in 1966 per 100,000 → 1100 violent crimes in 1981 per 100, 000

• Property crimes were 70% higher at this time too; social breakdown in NYC, lots of fear and concern and social problems in the subways - violence in subways

• In 1981, Bernard gets on subway, 3 young men try to mug him and he had lots of tech equipment, Goetz protects his stuff but in the altercation, he is thrown in glass and badly hurt

• State of NYC denies a permit for a gun, so he goes to florida in order to feel more protected 

• He goes on the subway again after obtaining gun, then 4 young men approach him (3 are 19, one is 18); one says how are you and asks for 5 bucks, still confused on what actually happened but Goetz says he had a ‘pattern of fire’ and shoots the guys who asks for 5 bucks in the chest, Goetz shoots most of them except for last guy - the last guy is now at the back of the subway car, Goetz walks up to him and supposedly says you dont look so bad and shoots him using a dummy bullet (bullet on impact explodes) and severs this guys spine - in wheelchair for rest of life

• Within days, Goetz is seen as a hero and called the “subway vigilante” and citizens help fund his lawyer fees

• Charged for aggravated assault and murder - acquited for aggravated assault and found guilty for possession of a weapon (not from NY state), given sentence of 6 months, 1 year psychiatric treatment, 200 hours of community service and 5000$ fine

• Crown appealed for sentence to be longer, so changed to 1 year;

• So how is Goetz seen as the victim in this situation and the 4 others as seen as the accused

  • And how this happened can be explained through the liberal principles

• Carter offers a different definition → less liberal, more alternative

Part 2. Liberal definition of a victim

• Individual who loses property, liberty or security because of actions of another individual 

  • Point of article by Carter - how did we go from thinking the shooter turned victim - flipping of these relationships → unpacks the race relations in New York in the 80s

  • If the state is failing to punish perps (transgressers) than it becomes rational to take back that use of force - liberal framework because we assume individuals lose their freedom when

  • If we look through this situation through a liberal definition, it misses essential notions of equality and equity - Canadian court tries to stay true to its liberal principles but trying to keep in account other issues and how liberal principles are

• Sees the conflict in the court and recongizes that the criminal trial is a process of legitimizing

• Victim has no role in the trial process

• Liberal understanding; a victim is an individual (not a family, community, group; only individual - single person) who loses either their physical liberty or security or their property because of the actions of another individual transgresser

• Liberal principles; the reason we give the state MOUF because we want the state to protect us from those trandgressers, and the state will punish these transgressers to maximize our liberty

• Two things have to happen that flip the roles of the victim and transgressers (using example from above)

1. If the state cannot punish those transgressers, than it makes sense for us to take that use of force into our own hands to protect our individual self

   1. Same time; doesnt explain how Cabey becomes the transgressor and Goetz the victim → Goetz is white, and the four young guys are black

   2. how race plays out in victimization 

   3. The youn black men ‘must’ be the transgressers

   4. So another explanation is considered…

• Role of the state

  • Monopoly use of force to punish transgressers; individuals = done something bad = their rational - accountable = punishment

  • Criminal justice trial, self defence? …

Part 3. Alternative definition of a victim

• Victimization from a different view

• Take race into account; gender based discrimination…

• If liberalism ignores some of these issues, we need a definition that acknowledges a racially charged path and a racially charged present

• Victimhood as a factor of sweep history → whos being vicitmized is a question of context (not just individuals but also how individuals are members of different groups)

  • But in who belongs in a group → how we slot people into groups where they might not agree with or want to fit in is also a point of oppression 

  • Because people are not just individuals but members of a group

• Gives us an opportunity to talk about their experiences rather than identity - because of context

• This def takes into more social historical context and complex

• Going back to example of Goetz; how these kids were shot as ‘criminals’ is rooted in this historical context + racial tension at the time

  • Criminal jsutice system being blind to this, but alternative def helps us understand it better

• Alternative def is good bc pricesily because it opens up a context, but if you get rid of the liberal def completely, then you lose the notion of individual accountability

  • Liberalism = sees individuals as being accountable for their actions, meaning they  have agency

  • People get trapped in the past if you only use this alternative def; individuals dont have accountability or marganlaized communities

• Role of the state

  • Alleviate the hardship that is placed on the victim

  • Role is to make the hardships go away and that are placed on groups, especially marganalized groups

Class Notes - Feb 6

Role of the Defendent

‘Parties’ the offence

• If i commit this act (actus reus), but i am not the only one who can be charged - can be groups

Aiding + Abetting

• You always need to look at case examples to helpd differentiate

• Ex; Dinlop r Sylvester v. R (1979) 

• dinlop + Sylvester at a bar, 2 girl walk in, they all start talking and ask the girls to a party to a dump site, girls say yes, they bring beer to the dump, when they arrive a number of the gang members are sexually assaulting them/rape/gang rape (one girl by 18 people); when police arrest people, they try to arrest as many people as possible including Dinlop and Sylvester

  • Question is did they 

• Sec. 21 (1) → who? - the 18 guys

• Sec 21 (2) → aiding + abetting - was Dinlop + Syl guilty 

  • They were acquited

• Aiding + Abetting definition

  • Starts with mere presence, just because you are in the area, doesnt mean you are aiding + abetting

  • But presence + encouragement of the people committing the offence = aiding + abetting

  • Or, presence + facilitation = aiding + abetting 

  • Enticing the victim to the location and rpeventing the victim’s escape

• Supreme court decision

  • Reasoning; they are not parties to the rape and are acquitting 

Week 6

Role of the Defendant CONT>

Part 1. Section 21 - Parties offence 

• Ritual; include parties 

• Looking at who can be charged

1. Committed it - the actual criminal, guilty 

2. Aiding + Abetting 

• Mere presence is not enough, but encouragement, prior knowledge, or facilitation, ect - you can be changed - seen in Sylvester/Diplop case

• Another case : Curron (1977) Ontario court of appeal

  • Curron is shopping in a  mall with a friend Defoe; Defoe tells Curron “im gonna rob someone”, this someone is armand - Curron follows along 

  • Defore throws Armand down the stairs in a stairwell to rob him, Curron is present - question is Curron aiding + abetting

  • Defoe is worried about him being able to identify him so he cuts his eyes out - Curron says that's not good enough, a blind man can still talk, so Defoe chokes him to death

    • Defoe is charged with first degree murder

  • Now Curron liable for aiding and abetting - Curron would have had to encourage Defoe in committing the crime - but specifically have to intention to encourage

    • Trial court’s question is when Curron said “a blind man can still talk” was an encouragement to intent to kill?

    • No actual evidence of intention to encourage, so new trial and no case report on that trial - so no news about what happened to him 

3. Common Intention (Puffer, McFall)

• D1 commit an offense carrying out a common intention

• D2 , not the person who committed it (common intention) had to have an intention in common with the person who committed it to carry out this unlawful purpose

• As they are both doing this, D1 does something else - D2 should have known what the likely consequences of D1’s actions

• Ex: puffer, McFall, Gazima (1977 - Manitoba court of appeal) case

  • Decide they're going to go to a park, known for an area where gay men go to have sex, they go there specifically to find a gay man to beat them up

  • All 3 of them attack this guy and beat him up (D1, D2, D3), then they leave

  • Gazima decides to go back, takes a pillow and ties it around his face while hes laying on the ground recovering from the fight, pillow obstructs his ability to breathe and dies

  • So Gazima (D1) is the one who actually killed him

  • All 3 though decided to do something unlawful - to assault someone

  • They all had common intention - they all commit the assault, the Gazima goes back to kill him 

  • question : did Gazima commit the murder while he was still carrying out the common intention of assault with the 2 other guys

    • Then did the 2 other guys intend to carry out the common intention with the possibility of ending in something more serious

  • Yes all 3 assault, but Gazima does something more than an assault

    • But is this something they (D2 and D3) should have known was a perfectly likely situation to result as a consequence of assault (it could have lead to a far worse consequence)

  • The court decided that D2 and D3 had common intention

    • All 3 are convicted of the murder

Part 2. Section 22 - Counselling

• Is when you recommend procure solicit or incite (urging) someone else to commit an offence deliberately (EX: hiring a hitman)

  • encourages or actively induces someone to commit an offence 

• When you counsel you are liable for the same punishment as the person who committed it 

Part 3. Section 23 - Accessory after the fact

• Case - Duong (1998)

  • Where you know someone has committed a crime and you help them to escape from justice - ex: paying for a ticket to escape/hide them

  • They are charged with ½ the punishment of the crime (if person who committed the crime is charged with life you get half of that sentence (14 years)

Criminal Liability

• Starting with the liberal principles rational individuals who weight the pros and cons of their decision

• Actus non facit reum 

  • Act is not guilty unless the mind is guilty also

  • Is not enough to do something with crime

  • Not enough to act/something you are suppose to do, you have to do it with a specific idea in your head having a guilty mind

  • Is not enough to do something with crime, unless the

• Actus reus

  • Prohibited act

• Meus rea

  • Person has done it with weighting the cost and benefit with finding the blameworthiness

  • Required guilty mind

• Ex: a woman married a person while legally being married to someone else

  • She thought her husband drowned in a shipping accident and married another man

  • She goes to trial after that husband survives and comes back to her

    • The actus reus (committing biagny) was there, but not guilty because she thought husband was dead

• Ex: Drosie (1984) SCC

• Works at a machine shop and during his break he tells his coworkers he's tired of his wife and he's gonna kill her

  • Makes up this plan to soak the car with gasoline and will crash it into a bridge so it catches on fire so it looks like an accident

  • Does the plan - first put his kids in the back of the car and wife in passenger seat, starts driving crashes into bridge, it catches on fire, wife tries to get out and he start beating her with something but she pushes him off and they both get out but the kids are still in the car and die

  • He is charged with murder 

    • Any intent to cause death to another human beaung - doing it on purpose (even if the death was not the intent death, but still thriugh actions, killed someone else in his plan to kill another)

    • Liberal principles - blameworthiness, weighting pros and cons

    • Transfer the intent of killing hus wife to the death of his kids

• EX: Miller

  • Hes married, his wife leaves him

  • After they divorce, his wife finds someone else (roach)

  • Husband decides to kill him then himself 

  • He goes to the family's house where roach is and others

  • He walks toward him with a gun but one of roach’s friends tries to take it away from him, but in thai altercation, he shoots someone else and dies

  • Court sees thay you need both mens rea and actus reus and even though the actus reus was towards the wrong person they see you walk into a crowd with a gun with the intentions of killing someone, even though he killed someone else the intention is transferred as you had the intention to kill (he has a guilty mind)

  • Was charged with murder

Criminal act (going through a checklist)

• Did the accused commit the actus reus - not guilty

• If the accused has the actus reus then you go to the next question

  • Does the accused have the required mens rea?

  • yes , guilty mind we can't convict the person yet, we must look at any defences or excuses that the person is not guilty 

  • If there is a defense then we acquit 

• Criminal liability : Can the state prove beyond doubt that the person is guilty, so the state can legitimately take away their freedom

• You have to prove the actus reus first 

  • If there's no mens rea we will not be able to get there (you cant jump around)

How to create this checklist 

1. Actions 

   1. Where the person is 

   2. Figure out what the action is 

   3. Section 322 of criminal code - theft

      1. We have to identify the verbs

         1. Takes anything - animate/inanimate 

         2. Converts anything - animate/inanimate

         3. With intent to deprive - mens rea 

EX; this guy owns a helicopter business

• Own 2 helicopters one is old one is new

  • Needed to take a loan to buy the new one

  • There's an accident and the old one crashes 

  • Takes the old ip address from the old helicopter and puts it in the new one to make it seem like the new one crashed and wont need to pay the mortgage

  • He committed the act of actus reus and can be convicted