Criminal Law

Homicide – is the killing of another human, directly or indirectly. Homicide can be divided into two categories: culpable and non-culpable. Non-culpable homicide is usually where the death is accidental or a death that results from self-defence.

Culpable Homicide (deserving blame) can be further divided into three groups: murder, manslaughter and infanticide. A person commits culpable homicide when he/she causes the death of a human being:

by an unlawful act
by criminal negligence
by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or
by wilfully frightening that human being, in the case of a child or sick person.

When is someone dead?

There are two possibilities:

brain death
vital organ death

The law does not recognize brain death or cessation of brain function as the legal standard of determining when death occurs. Thus, the test for when death occurs is whether any of the victim’s vital organs continues to operate – if they do, the person is not dead.

Death Within a Year and a Day

To be convicted of culpable homicide, the person must die within a year and one day from the date when the last event by which the accused caused or contributed to the cause of death.

Murder is defined in s. 229 of the Criminal Code as where a person causes the death of another and:

(i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.
Or where a person, meaning to cause the death or cause him bodily harm that he is likely to cause death and being reckless as to whether death ensues or not, by accident or mistake causes the death of another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being (oops, got the wrong guy!)
Where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death, notwithstanding that the accused desires to achieve his unlawful object without causing bodily harm to any human being (such as arson).

First-Degree Murder

According to s. 231(2) of the Code, murder is first-degree murder when it is

planned and deliberate;
causes the death of a law enforcement agent (police or prison guard) who is acting in the course of his/her duties (prosecutor must show that the accused knew that the deceased was such a person or they were reckless as to whether the person was such a person);
causes the death of someone while another offensive crime is being committed (hijacking, sexual assault, kidnapping, robbery);
death resulted while committing or attempting to commit an offence related to criminal harassment;
death resulted from using explosives to commit an offence in relation to a criminal organization (gang activity); or
death results while committing or attempting to commit an indictable offence that could also be considered a terrorist activity.

Second-Degree Murder

All murder that is not first-degree murder is second-degree murder.

Murder and Causation

To be found guilty of murder (first or second) the Crown must prove beyond a reasonable doubt that the accused caused the death of the deceased. The court has held that “caused” means that the accused participated in the murder in such a manner that he/she was a substantial cause of the death of the victim.

Penalties for Murder

First Degree – life imprisonment without the opportunity for parole for 25 years (minimum)

Second Degree – life imprisonment without the opportunity for parole for 10 years (minimum)

MANSLAUGHTER

Murder reduced to Manslaughter – s. 232

Culpable homicide that would otherwise be murder may be reduced to manslaughter if the accused who committed the act did so in the heat of passion caused by sudden provocation. A spouse walks in on her husband who is in bed with her sister and kills both of them in a rage.

Manslaughter (another way to be found guilty of manslaughter)

Manslaughter is the causing of death of a human, directly or indirectly, by means of an unlawful act.

Mens Rea for Manslaughter

The mens rea for manslaughter is general intent. That is, the accused only has to have intended to commit the unlawful act and that the act was one that a reasonable person would recognize that the unlawful act could harm or kill a person.

Often manslaughter results when the accused successfully uses one of two defences to murder:

provocation – a wrongful act or insult by the deceased that would make an ordinary person lose control and the killing must take place during the loss of control (i.e. you can’t go and plan out the killing after the insult); or
intoxication – must be shown that the intoxication was such to impair the accused’s ability to understand or predict the consequences of their actions.

Penalties for Manslaughter s. 236

where a firearm is used – up to life in prison and a minimum sentence of 4 years;
in all other cases, up to life in prison but no minimum sentence.

INFANTICIDE

s. 233 A female person commits infanticide when by a willful act or omission (not doing something – like feeding your baby!) causes the death of her newly-born child at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the bird of the child her mind is then disturbed.

Abortion

There is currently no law restricting abortion in Canada. None. Zippo. Zilch.

Assault

There are three levels of assault.

Level One – What is it?

Applying intentional force to another person – either directly or indirectly without that person’s consent
Attempting or threatening, by act or gesture, to apply force
Approaching or blocking the way of another person, or begging, while openly wearing or carrying a weapon or an imitation of a weapon.

For an assault, words alone are not enough – the words must be accompanied by actions.

Level Two – Assault Causing Bodily Harm/Assault with a Weapon

Occurs when anyone who, while committing an assault, carries, uses or threatens to use a weapon or an imitation of a weapon, or causes bodily harm. Question: What is a weapon? Answer, any object that is used as a weapon.

Level Three – Aggravated Assault

Occurs if anyone wounds, maims, disfigures, or endangers the life of a person. The mens rea is only to commit bodily harm. The defence of consent may not be accepted in some circumstances for aggravated assault.

Penalties for Assault

Level One – Assault (this is a hybrid crime where the Crown decides how to proceed)

Indictment – imprisonment up to five years;

Summary Conviction – fine up to $2,000 and/or imprisonment up to six months (no jury trial)

Level Two – Assault causing bodily harm/with a weapon (this is a hybrid crime where the Crown decides how to proceed).

Indictment – imprisonment up to ten years;

Summary Conviction – imprisonment up to 18 months (no jury trial)

Level Three – Aggravated Assault

Indictment only – imprisonment up to 14 years.

Defences to assault:

Lack of mens rea – no intent.
Self-defense
Defense of others
Defense of property
Legal Authority

Consent cannot be a defence where the force is such to cause serious hurt or non-trivial bodily harm to each other. Thus, contact sports are allowed as long as the conduct of the players follows the customary norms and rules of the game. Consent is also void if it was obtained by the threat of violence or by fraud or by power of authority over the victim (teacher and student, for example).

Sexual Assault

Sexual assault covers any assault (not just rape) where the conduct of the accused was sexual in nature. This is usually determined based on the nature of the contact and the situation in which the contact occurred. Just like assault, sexual assault is divided into three different levels.

Level One - Sexual Assault – s. 271

The definition of sexual assault under s. 271 is the same as assault except it occurs in relation to sexual conduct.

Level Two - Sexual Assault with a Weapon/ Causing Bodily Harm – s. 272

Where a person uses a weapon (or imitation) or threatens to use a weapon or causes bodily (or threatens bodily harm) to any person or is a party to the offence with any other person.

Level Three - Aggravated Sexual Assault – s. 273

Where a person wounds, maims, disfigures or endangers the life of the victim.

Sexual Assault with a Weapon/Causing Bodily Harm
1. Indictment – with a firearm – imprisonment up to 14 years and a minimum of 4 years imprisonment;

Aggravated Sexual Assault
1. Indictment – with a firearm – up to imprisonment for life and a minimum of 4 years imprisonment;
2. Indictment – not with a firearm – up to imprisonment for life (no minimum).

Consent as a Defence to a Charge of Sexual Assault

Given the nature of when/where sexual assaults are likely to occur, many if not most cases come down to the issue of did the person consent to the sexual contact. Consent may be a defence to a charge of sexual assault. That being said, the Criminal Code states that no consent is obtained when:

consent is expressed by words or actions of someone other than the victim;
victim is incapable of giving consent (drunk, asleep or otherwise incapacitated);
consent is induced by the abuse of authority or trust;
the victim shows a lack of consent by action or words; or
the victim having initially agreed to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue the activity.

Evidence in Sexual Assault Cases

When can’t evidence of the victim’s past sexual history be used?

When it is used to suggest that the victim more likely consented to having sex with the accused; or
When it is used to damage the character of the witness and suggest that the victim is less worthy of being believed.

When can such evidence be used?

To prove other aspects of the case such as how certain injuries may have occurred; or
To prove inconsistencies in the victim’s statements/testimony.

In deciding whether to allow testimony in regard to the victim’s sexual history, the judge will make the determination in a voir dire (a trial within a trial) without the jury present (the public may even be barred from the court room).

Sexual Offences Where Consent is not a Defence

Before we start we should have a clear understanding as to the current law in regard to the Age of Consent (minimum age at which one can legally consent to having sexual relations with another person).

Age of Consent: Until very recently the age of consent in Canada was 14 years of age. It is currently 16 years of age. That being said, there are a number of exceptions:

Sexual Interference s. 151 – any person who touches, directly or indirectly, with a part of the body or with an object, a person under the age of 16 for a sexual purpose is guilty of a criminal offence. This is a hybrid offence

Invitation to Sexual Touching s. 152 (children under 16 years of age) – it is an offence to invite, counsel or incite any person under the age of 16 years to touch for a sexual purpose, directly or indirectly, with a part of the body or an object, the body of any person. This is a hybrid offence:

Sexual Exploitation s. 153 (children between 16 and 18 years of age) – it is an offence for any person in a position of trust or authority (priests, teachers or coaches for example) toward a young person or is a person with whom the young person is in a relationship of dependency and who:

for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or
for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or an object, the body of any person.

Note: Mistake of age by the accused is not a defence unless that person took all reasonable steps to ascertain the age of the complainant.

Other Sexual Crimes

s. 155: Incest: Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.

(2) Everyone who commits incest is guilty of an indictable offence and liable to imprisonment up to 14 years.

(3) No accused shall be determined by a court to be guilty of an offence under this section if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.

(4) In this section, “brother” and “sister,” respectively, include half-brother and half-sister.

s. 161 Voyeurism: Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

Driving and the Criminal Code

While most people (not all) are aware that driving while under the influence of alcohol is a criminal offence, there are also a number of other criminal offences found in the Criminal Code that relate to motor vehicles.

What is a motor vehicle?

It is important to realize that the Criminal Code offences relate to motor vehicles and not cars.

Why is this important? Motor vehicles include any vehicle that is drawn, propelled or driven by

any means other than by muscular power, but does not include railway equipment. As such, the section applies to boats, aircraft, cars, trucks, motorcycles and snowmobiles.

Dangerous Operation of a Motor Vehicle s. 249 It is a criminal offence to operate a motor vehicle in a manner dangerous to the public on any street or public place (including parking lots and other private roads regularly used by the public such as the roads on a reserve or a condominium development). To be convicted, it must be proved by the Crown that the accused’s actions amounted to a marked departure from the standard of care that a reasonable person would observe in the same situation.

Failure to Stop at an Accident s. 252

If you are involved in an accident, you are required to stop and give you name and address to the other party. If others are injured, you are required to give assistance. Leaving the scene (except in rare circumstances to get help) is a criminal offence and the penalties are steep as a result of the number of impaired drivers who used to (and still do) leave the scene of an accident to avoid a conviction for impaired driving.

Penalties:

i) No bodily harm - hybrid offence - up to 5 years if by way of indictment;

ii) With bodily harm - indictable - up to 10 years; and

iii) Death — indictable - up to life.

Impaired Driving s. 253

Impaired driving is a serious issue in Canada as is the leading cause of criminal deaths in Canada.

It is important to realize that there are four separate criminal offences set out in s. 253:

1. driving while ability is impaired by alcohol or drugs;

2. having care or control of a motor vehicle when impaired by alcohol or drugs;

3. driving while the blood-alcohol level is over 80mg in 100 mL of blood; and

4. having care or control of a motor vehicle when the blood-alcohol level is over 80mg in 100 mL of blood.

Note: It is possible to be convicted of impaired driving when your blood alcohol level is below .08! — It is simply a question of whether your ability to operate was impaired. Also, it is possible to be convicted of impaired driving when you are not driving — “care or control” which includes when you are sitting in the driver’s seat or, in one case, where the driver was standing beside his car after having called a tow truck.

Blood Samples — in addition to a breath sample, police may demand a blood sample (two, actually) where it is impossible to obtain a breath sample (the driver is unconscious). If the accused is unable to give permission (unconscious) the police must obtain a search warrant and the sample must be taken within four hours of the alleged offence.

Refusal to Give a Breath Sample

The same penalties result from a refusal to give a breath sample as would result in the case that a result of over 0.08 had been obtained.

Penalties for Impaired Driving

Penalties have increased twice since 1985 as outrage grew over the light sentences given to many drunk drivers in light of the carnage they spread on the roads.

2. Impaired driving causing death — indictable — up to life.

Provincial Offences

In additional to the criminal aspects of impaired driving, the provinces have also introduced laws to control impaired drivers (in BC the limit for the province is 0.05 – so be aware!). Most revolve around the ability of the driver to keep his or her license. For instance, the province may suspend the license of a driver for a period longer than set out in the Criminal Code or may impose a short suspension for even lower levels of intoxication (so-called 24-hour roadside suspensions in BC).

Street Racing

Causing death by criminal negligence (street racing)

249.2 Everyone who by criminal negligence causes death to another person while street racing is guilty of an indictable offence and liable to imprisonment for life.

Causing bodily harm by criminal negligence (street racing)

249.3 Everyone who by criminal negligence causes bodily harm to another person while street racing is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Punishment

(2) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.