CRIMINAL LAW

1. CRIMINAL LAW

2. What is Criminal Law? Public law that declares acts to be crimes and prescribes punishments for those crimes

3. What is a Crime? • Anything that is defined as criminal in the Criminal Code or related federal statutes (i.e. Youth Criminal Justice Act, Food and Drugs Act, etc.) • Decided by Parliament – under the jurisdiction of the federal government; • The Criminal Code is a reflection of society’s values – it changes as society’s values shift and the public pressures the government to do so.

4. QUASI-CRIMINAL OFFENCES Offences that fall under provincial jurisdiction, such as failing to wear a seatbelt, speeding, or drinking under age. Enforced by the courts, and may involve a substantial penalty, but are not “crimes” – you will not get a criminal record if you are found guilty of committing one of these acts (hmmm….following too close????).

5. A CRIME EXISTS WHEN... The action harms other people; The action violates the basic values of society; Using the law to deal with the action does not violate the basic values of society; Criminal law can make a significant contribution to resolving the problem.

6. The Elements of a Crime For an offence to be considered a crime, two elements must exist: ACTUS REUS (the physical element, or guilty action) and MENS REA (the mental element, or guilty mind). ACTUS REUS + MENS REA = A CRIME

8. ACTUS REUS • Latin for the guilty action or deed; • The action must be VOLUNTARY (willful, conscious acts) to be considered criminal. • You cannot be held responsible for something you cannot control. • For example, if you are in a car accident because you have a heart attack, you cannot be charged with dangerous or careless driving. • The action can also be an OMMISSION or a STATE OF BEING • Omission: failing to do something, i.e. leaving the scene of an accident, or failing to provide the necessities of life, are both considered to be crimes. • State of Being: being in the possession of something illegal or being somewhere illegal, such as a betting house or a bawdy house.

9. R. v. Parks • In 1992, the Supreme Court of Canada upheld the acquittal of Kenneth Parks. • He drove approximately 20km, stabbed his mother-in-law to death and seriously injured his father-in-law. • Charged with the murder and attempted murder of his in-laws, his defence argued successfully that he was in a state of automatism: he was sleepwalking at the time and therefore acted involuntarily. • As a result of his successful defence, Parks was acquitted. • Cases such as these where mental illness, alcohol consumption, the use of drugs, or even sleepwalking, illustrate the difficulties that can exist in proving actusreus. dateline episode with parks case national geographic is it real curious case of Kenneth Parks

10. MENS REA • Latin for “a guilty mind”; • includes: KNOWLEDGE, INTENT, RECKLESSNESS, and WILFUL BLINDNESS - the act was intentional and the accused knew it was wrong, was negligent, reckless, or willfully blind. • Can be established by showing that the accused had the intent to commit the offence or knowledge that what he/she did was wrong.

11. MENS REA – KNOWLEDGE • The awareness of certain facts that can be used to establish the necessary mensreafor a conviction. • ignorance is not allowed as an excuse for committing an offence. For example, if you use a stolen credit card, the Crown only has to prove that you used the credit card.

12. INTENT CONTINUED... • There are 2 kinds of intent; the type of intent varies depending on how the crime is defined in the Criminal Code: • General Intent – The desire to commit a wrongful act, with no ulterior motive or purpose (the accused to meant to commit the crime). • For example: Ahmed swings a golf club and hits Lasean. If he meant to hit Lasean, then he is guilty of assault. If it was an accident, then there is no crime. All the Crown has to prove is that Ahmed MEANT to hit Lesean to prove his guilt. • Specific Intent – The desire to commit one wrongful act for the sake of accomplishing another. • For example, if Josh strikes Scott with the intent of stealing his wallet, he has the specific intent to commit a robbery. To prove mensrea for robbery, the Crown would have to prove that he not only assaulted him, but he did so with the specific intent of stealing from him.

13. Significance of the different types of intent: • General intent is easier to prove, i.e. manslaughter (unintentional homicide) is easier to prove than murder (intentional, planned and deliberate homicide). • Some defences are more likely to succeed against specific intent offences, i.e. intoxication. • If you are extremely intoxicated and you break into a store and knock out the security guard, you could be charged with break and entering with the intent to commit robbery. You could plead not guilty due to intoxication, and the judge might rule in your favour, citing that you were too impaired to be able to form the necessary intent to actually commit the robbery.

14. INTENT AND MOTIVE • INTENT IS NOT THE SAME AS MOTIVE! • MOTIVE is the reason for committing an offence, but does NOT establish the guilt of the accused and is NOT the same as intent. • INTENT refers to the state of mind with which an act is done or not done (the willingness to break the law). • For example: The Latimer case • Motive – to end his daughter’s suffering; • Intent – to commit murder.

15. The DOCTRINE OF TRANSFERRED INTENT: when an illegal, unintended act results from an intent to commit a crime is also an offence. • For example, in the recent decision of the Jane Creba case, the accused was convicted of second-degree murder though there was doubt that he actually fired the weapon that killed her. The premise behind this decision was the idea of the doctrine of transferred intent – if you intend to shoot one person, but miss and shoot and kill another, you are still guilty of committing an offence.

16. MENS REA - RECKLESSNESS OR WILFUL BLINDNESS RECKLESSNESS • acting carelessly without regard for the consequences of your actions. • You may not intend to harm someone, but if you understand the risks and proceed to act anyway, mensreawould exist. • For example, if you shoot a pellet gun into a crowd of children and injure one, while you didn’t intend to harm one, you should have foreseen the possibility that you could have and were taking a risk. WILFUL BLINDNESS • Deliberately choosing to ignore certain facts or information • results when a person is aware of the need for some inquiry but declines to make the inquiry because he/she does not wish to know the truth. • i.e. if Kianja is offered $100 to deliver a package a couple of blocks away for Cameron, a known drug dealer, but she does not ask what is in the package, she could be charged and convicted of drug trafficking.

17. SUBJECTIVE VS. OBJECTIVE INTENT There is a lot of ambiguity and confusion about mensrea, a central issue being whether the intent meets the SUBJECTIVE or OBJECTIVE standard. This is important to determine whether the conduct was deliberate. • SUBJECTIVE STANDARD • “Did the accused know the consequences of his/her actions?” • Concerns the accused’s state of mind at the time of the offence • OBJECTIVE STANDARD • “the accused ought to have known the consequences of his/her actions.” • Involves determining what a reasonable person would have understood, perceived, or foreseen in the circumstances, and little to do with the accused’s actual state of mind. • Forms the basis of civil liability for negligence (carelessness)

18. It is more difficult to prove the subjective standard because it is difficult to know what someone is thinking at any given time. • Sometimes it is not easy to determine whether the conduct was deliberate, i.e. R. v. Tutton and Tutton • Son was a diabetic who needed insulin. • Parents believed he would be healed through faith and stopped giving him medication; • Parents were warned by doctor that without medication son would die; parents agreed to put son back on medication promising to keep him on the medication; • They took him off the medication again – this time their son died. • Parents were charged with criminal negligence causing death. • Defence lawyers argued that the parents were acting in the best interests of their child – truly believed he would be healed by God – therefore they weren’t negligent; • Crown argued that any reasonable parent would have foreseen that the withdrawal of the insulin would lead to their son’s death, therefore they were guilty of negligence. • The case went all the way to the SCC, where the judges were split 3-3 in their decision. • 3 provided the objective argument (that they should have known the consequences of their actions and were therefore guilty of manslaughter); • 3 provided the subjective argument (that there is more of a need to determine what they actually did know/understand, which was their belief he would be healed by God and not responsible for his death, and should therefore be acquitted) which demonstrates the complexity behind this issue.

19. Crimes without Mens Rea For the most part, crimes must have both elements (actusreusand mensrea) present to secure a conviction. There are some crimes, however, that do not. For these crimes, the Crown only needs to prove the actusreus. These offences are called REGULATORY OFFENCES They are classified as either a) ABSOLUTE LIABILITY or b) STRICT LIABILITY offences

20. ABSOLUTE LIABILITY OFFENCES • Fault is not an issue; • Guilt follows the mere doing of the prohibited act; • No opportunity for the accused to exonerate themselves; • Since there is little opportunity for a successful defence, prison terms are considered to be unconstitutional (see Re: B.C. Motor Vehicle Act, 1985). • Example, • If you are caught driving without a driver’s licence, you are automatically guilty whether or not you are aware that you are prohibited from driving.

21. STRICT LIABILITY OFFENCES • The Crown does not have to prove mensrea because the doing of the prohibited action is enough to prove guilt, but • the accused has the opportunity to prove that they took the reasonable care to avoid committing the offence, using the defence of DUE DILIGENCE. • Example, • offences that deal with the environment, the health and safety issues, or offences dealing with the general welfare of the public.

22. CRIMINAL OFFENCE CLASSIFICATION

23. It is important to know how to classify an offence because it determines: The power of arrest for a citizen or police; The rights of the accused; How the trial will proceed (in which court); and, What penalty will be imposed.

24. CLASSIFICATION OF CRIMES SUMMARY CONVICTION OFFENCES INDICTABLE OFFENCES HYBRID/DUAL PROCEDURE OFFENCES

25. 1. SUMMARY CONVICTION OFFENCES Minor offences for which an accused can be arrested or summoned to court without delay (tried without a preliminary hearing or jury); Includes all provincial offences i.e. Traffic violations; Penalties range from small fines to imprisonment; Maximum penalty is $2000 fine and/or 6 months in prison

27. 2. INDICTABLE OFFENCES Severe criminal offences, such as murder; The Crown proceeds by indictment (press charges); Trial by judge alone, or judge and jury (with the approval of the Attorney General) Severe penalties are imposed at the discretion of the trial judge; Some crimes have a minimum penalty that must be adhered to.

29. 3. HYBRID OFFENCES (DUAL PROCEDURE OFFENCES) Offences that are punishable as both an indictable offence and summary conviction offence; The Crown decides how to proceed – either by indictment or summarily; First time offences are usually treated as summary conviction offences, depending on the nature of the crime

30. HYBRID OFFENCE EXAMPLE: THEFT If the value of the stolen goods is over $5000, the offence would be an INDICTABLE offence; If the value of the stolen goods is under $5000, the offence would be a SUMMARY CONVICTION OFFENCE.