Purposes of Criminal Law- Exists to label wrongful behaviour, to identify violations and impose sanctions. Labelling , identifying, and sanctioning wrongful behaviours achieves two things: retribution and the protection of society. Actus Reus: The guilty act. To prove actus reus, the Crown would have to demonstrate that a) there was no consent, b) force was applied. Mens Rea: The guilty mind. Done with criminal intent or knowledge that what he/she did was against the law. Objective-If a reasonable person would foresee an actus reus that the actus reus was intended.
No thought was given as to what was in the mind of the accused person. Blame based on the fact that the accused failed to live up to the standard of the reasonable person. External to the accused. Subjective- Must prove that the accused himself had the requisite intention (mens rea) at the time of the offence. Links fault to accused’s own choices. Criminal liability should be reserved for those who consciously choose to behave criminally. General Intent means to commit a wrongful act for its own sake, with no other purpose or motive. Specific intent involves intent in addition to the general intend to commit the crime.
Due diligence-reasonable steps taken by a person in order to satisfy a legal requirement. Absolute liability- culpability based on the commission of an actus reus without regard to the mens rea. Strict liability- culpability based on the commission of an actus reus and inability to prove the defence of due diligence. Crime Scene Investigation- Crime scene evidence alone does not establish guilt on its own in most cases. Source or physical evidence, police secure the scene, follow proper protocol, properly catalogue and safeguard all collected evidence.
Analysis may be call on experts and techniques from the fields of biology, chemistry, physics, anthropology, geology, computer science, etc. Physical evidence is made up of fingerprints, trace elements(dirt, dust, residue), blood, gunshot residue, and DNA. DNA- All humans have a distinct genetic code. Laboratory analysis of blood stains, semen, saliva, vaginal secretions, skin, and hair follicles can lead to the identification of an individual through their distinct genetic code. Minute samples are sufficient even when mixed with other substances.
Has been available since the early 1980’s and has been used to prove the innocence of wrongfully convicted individuals. Warrant-A grant of judicial authority to arrest of search. Arrests may take placeeither with or without the authority of a warrant. Indictable Offence- term used to describe a serious offence under the Criminal Code, prosecuted in a manner more complex and carrying penalties more severe than a summary conviction offence. Summary conviction offence- term used to describe an offence under the Criminal Code, prosecuted in a manner less complex and carrying penalties less severe than an indictable offence.
Hybrid offence- term used to describe an offence under the Criminal Code, prosecuted as either an indictable or a summary conviction offence at the discretion of the Crown. Search powers- Searches must be explicitly authorized, either by statute or at a common law. The police have no general right to search an individual or a place because they hope to discover evidence. The warrant is a grant of authority to conduct a search. Prior authorization is given in circumstances where reasonable grounds exist.
The three main purposes incident to arrest are 1) to ensure the safety of the police and the public, 2) to protect evidence from destruction at the hands of the arrested individual or others, 3) to discover evidence. Recognizance- a document designed to ensure an accused’s attendance in court; issued by the officer in charge of a police station after an arrest in which the accused promises to pay a sum of money if he or she fails to appear. Bail hearing- Hearing must be held within 24 hours of an accused’s detention unless they were detained on a Friday. This is to determine if the accused shall receive bail, and what it will be.
Preliminary inquiry/hearing- a hearing held to determine whether sufficient evidence exists to commit an accused for trial in a court of superior jurisdiction. Crown disclosure-The crown must disclose all relevant information to the accused before the trial, including all incriminating and exonerating evidence. Full disclosure by the Crown protects the accused’s constitutional right to make full answer and defence in a “fair and public hearing. Burden of proof-the Crown must convince the court that the accused should be convicted. The accused does not have to convince the court that he/she should be acquitted.
Presumption of innocence- the Crown must prove its case beyond a reasonable doubt. If there is a reasonable doubt as to whether the accused committed the offence, the accused is entitled to an acquittal. Jury array-pool of potential jurors assembled under provincial legislation; also called jury panel or jury roll. Peremptory challenge- the procedure by which the defence of Crown can reject a potential juror without giving reasons. Challenge for cause- potential jurors are challenged if either the Crown or the defence believes they will not fulfill the responsibilities of jury duty.
Direct examination/examination in chief- oral examination of a witness by the lawyer who summonsed the witness to testify. Cross examination- oral examination of a witness by a lawyer who did not summons the witness to testify, designed to challenge the witness’s evidence. Hearsay- evidence consisting of matters that a witness was told. Voir dire-trial within a trial to determine whether evidence is admissible. Perjury- the offence of willfully telling an untruth in a court after having taken an oath or affirmation.
Charge to the jury-The judge’s instructions to the jury concerning the law that applies to the facts of the case on trial. Jury deliberations- The deliberations made by the jury to establish the guilt or innocence of an accused. All members must be in agreement and deliberations can take days. Sequestered- The isolation of jury members from the general public or media to avoid tainting of the information given to them. Conviction- When an accused is found guilty of an offence. Acquittal- When an accused is found not guilty of the offence that they were being charged for.
Mistrial-a trial rendered invalid through an error in the proceedings. Hung jury- When a jury is unable to decide on a verdict. This can result in a mistrial. Defences-Negativing defense – no actus reus, or no mens rea. This could be mistake of fact, mental disorder, automatism, intoxication. Affirmative defense- Admit actus reus and mens rea are present but a criminal act was the only option. (I. e. Self-defence, compulsion. ) Plea bargaining- a process in which the accused negotiates with the Crown, usually agreeing to plead guilty in exchange for a lesser charge and a recommendation for a lighter sentence.
Denunciation-unacceptable behaviour that is labelled and condemned Separation from society- offenders are separated from society to protect the public. Rehabilitation- a sentencing goal that seeks to restore a person to moral, physical, social and mental health through training and treatment. Incarceration- imprisonment. Sentences less than 2 years served in provincial institutions. Sentences exceeding 2 years are served in federal institutions. Pre-sentence report- a report that describes the offender and the offence and that may also recommend a sentence; usually prepared by a probation officer.
Victim impact statement- verbal or written statement given by a victim or victim’s family to describe the personal consequences of the crime. Sentencing options- Absolute discharge- the offender is free with no conditions and no criminal record. Conditional discharge- the offender is free with no criminal charge but conditions must be met (curfew, bans). Probation- Maximum of three years, must be prepared to appear in court, required to keep in contact with probation officer, various conditions; bans, curfews, restitution, community service. Fine- financial penalty, summary conviction max = $2000.
Criminal offences = no max, but the ability of the offender to pay is taken into account. Fines go to provincial victims services. Intermittent sentences- for jail terms of 90 days or less, intermittent means non-sequential (serve a few days, such as weekend, be out a few days, then report a few days again, aka: weekend sentences). Conditional sentences- for prison terms of less than 2 years, served in the community (i. e. house arrest), conditions, requirement to be in certain places by certain times, curfew, bans, probation officer, sometimes monitored electronically.
Imprisonment- Harshest punishment under criminal law. See Incarceration above. Wrongful convictions- When an innocent person is convicted. Examples include, Donald Marshall, Guy Paul Morin, David Milgaard. The Kaufman Commission- a test in which a jailhouse informant must pass in order to be a witness and to include his/her testimony as evidence. If a jailhouse informants statement leads to physical evidence, then he is seen as credible according to the commission. Donald Campbell Jailhouse informants- Someone residing in jail/prison who is told by an offender information about the crime.
First-Degree murder-murder is considered first degree if murder is planned and deliberate, victim is a law enforcement agent such as a police officer or someone working in a prison, death occurs during another crime being committed, murder caused while committing or attempting to commit an offence related to criminal harassment, murder committed while using explosives to commit an offence in association with a criminal organization, murder committed while committing or attempting to commit an indictable offence that could also be considered a terrorist activity.
Homicide-directly or indirectly, by any means causes the death of a human being. Culpable-blamable(murder, manslaughter, infanticide) , non-culpable- not responsible. Second-Degree murder- Murder that does not fit into any of the above categories but is still caused intentionally is classified as second degree. Manslaughter- any culpable homicide that is not murder or infanticide. The actus reus of someone through a wrongful act, even if the killing of the individual was not intentional. Appeal-apply to a higher court for a reversal of the decision of a lower court.