I know it’s illegal, but is it a crime? Many things are illegal: jay-walking, speeding, or setting up a clothes line outside to dry your laundry (in West Vancouver), but they aren’t necessarily crimes. What then makes something a crime? Criminal Law Criminal law deals with offences committed against society (often these appear to be against individuals). The purpose of criminal law is to keep order in society and deter the committing of crimes. Thus, criminal law emphasizes: ? Prevention ? Penalties As we will see, criminal law does not focus on compensating victims of crime.
Sources of Criminal Law Under the Constitution, the federal government has sole discretion to decide what is a crime and the corresponding penalties. Most criminal law is found in three pieces of federal legislation (and one remaining common-law crime): 1. Canadian Criminal Code – contains most of the criminal law; 2. Controlled Drugs and Substances Act; 3. Youth Criminal Justice Act; and 4. Common-law crime of Criminal Contempt of Court. While the federal government has exclusive jurisdiction over criminal matters , the provinces can pass laws that are often considered quasi-criminal.
Laws governing the operation of motor vehicles, noise bylaws or pollution may have similar penalties as criminal law, but are not technically viewed as criminal. Suggested conditions for proposed new criminal laws: ? The action must harm other people ? The action must violate basic values of society ? Using the law to deal with the action/problem should not violate basic values of society ? Criminal law should be able to make a significant contribution to resolving the problem (consider drug addiction – is it a legal problem or a medical problem? ) Types of Criminal Offences.
Offences may be grouped into three different categories: 1. Summary conviction offences – are minor criminal offences and usually result in prompt appearance in court and maximum penalties usually of a fine of less than $2,000 and/or six months in jail. Defacing a coin or passing on a defaced coin is a summary conviction offence. 1Summary conviction offences are also the only criminal offences that have a statue of limitation – six months! 1 Section 456 of the Criminal Code For more “light” reading on various crimes visit the Canadian government’s website at: http://laws. justice. gc.ca/en/showdoc/cs/C-46/bo-ga:s_1/20090929/en#anchorboga:s_1.
2. Indictable offences – are the most serious offences that give rise to penalties of up to life imprisonment – first degree murder, for example. 3. Hybrid offences – are offences that may result in the Crown attorney proceeding by way of summary conviction or by indictment. Charging a criminal interest rate (s. 347) is punishable either as an indictable offence (up to five years in prison) or by summary conviction (fine up to $25,000 and/or a prison term of up to six months). What are the elements (parts) of a crime that must be proven in court?
As a result of the common law, and more recently section 11(d) of the Charter, the Crown prosecutor (or just the “Crown”) has the burden of proving the guilt of the accused beyond a reasonable doubt. Thus, if the judge or jury is not convinced of the guilt of the accused beyond a reasonable doubt, he/she must be acquitted (set free or found not guilty) – this is also known as the “Burden of Proof”. The relevant question becomes what exactly must the Crown prove? There are two parts that must be proven in every criminal trial: 1. Actus Reus – is the actual act (thing) that is considered a criminal act.
The Criminal Code establishes what acts are prohibited. Thus, for the crime of break and enter, the Crown must prove that the accused both broke into the house (smashed the window) an d that she entered. This is why police will often watch suspected criminals outside a home and wait until she/he enters before arresting them. 2. Mens Rea – or guilty mind – requires that the Crown show that the act was committed with one of the following: a. intent b. knowledge c. recklessness (didn’t care if something happened or not). Generally it is more difficult to prove mens rea than the actus reus.
What is intent? Intent is the true purpose or reason behind a person’s actions. Thus, to prove a case of assault the Crown must show that the accused intended to assault the person. If, for example, a bus suddenly stops and a person lurches forward stepping on another person’s foot causing a severe foot injury, they certainly have committed the actus reus for an assault, but since they didn’t intend to assault the person, they would not be found guilty of a criminal offence. Intent is usually deduced from the facts of the case and what a reasonable person would be thinking under the circumstances.
Two types of intent General Intent – some crimes require only a general intent – that is the intent to commit the act itself. Assault, for instance, only requires the intent of the person to apply force to another person without their consent. General intent also arises in some cases whereby an accused intended to commit one illegal act but because of a situation beyond their control they commit an offence other than the one intended. Specific Intent – occurs where to be convicted of a crime requires a further criminal intent other than the simple intent to commit the act.
For example, attempted murder requires not only that the accused seriously assault another person, but it must also be shown that the accused intended to kill that person. Obviously crimes that require specific intent are more difficult for the Crown to prove. 2 Situations where the law deems that an individual cannot form intent To a certain extent, the courts and our laws recognize that not everyone in all situations can actually form intent. As a result, the following groups or situations will lead to no criminal responsibility due to the legal acceptance of the inability to form intent.
? Minors under a certain age (less than 12 years of age) ? People suffering certain types of mental illness ? People who are so intoxicated by drugs or medication that they cannot understand what they are doing2 Knowledge For certain crimes, the mens rea required is the existence of certain knowledge by the accused. For example, in the crime of a using a credit card that is cancelled, it is only necessary for the Crown to show the accused knew the card was cancelled to win a conviction. Is intent the same as motive? Does the Crown have to prove motive?
No! Motive is why the person committed the crime and under Canadian law the Crown does not have to prove motive. Motive is often useful as it may be used as circumstantial evidence of the guilt of the accused. Recklessness For some crimes showing that the actions resulted from recklessness of the accused satisfi es the mens rea requirement. For example, showing that a driver was recklessly driving and then caused an accident which result in a serious injury or death may result in a criminal conviction. Non-criminal offences that do not require mens rea
Many regulatory offences do not require that the Crown show that there was a “guilty mind” on the part of the accused. These offences are not criminal in nature. They fall into two main groups: 1. Strict liability offences – all the Crown must prove is the actus reus, however, the accused will be acquitted if he/she can show the showed due diligence (did everything in their power to prevent the offence from occurring); and 2. Absolute liability offences – all the Crown has to prove is the actus reus and the accused will be convicted – there is no defence available to the accused.
According to the Supreme Court of Canada, absolute liability offences cannot result in prison terms. Other Unusual Situations 1. Attempt – an attempt is where a person intends to commit a crime but fails (possibly due to circumstances or factual situation) to complete the act. Thus, the actus reus is met when the Crown is able to prove that the first step has been taken toward committing the crime. The mens rea for attempt is the same mens rea as for the intended crime. Thus, the mens rea for attempted murder is the mens rea for murder (I intended to kill her).
2. Conspiracy – A conspiracy is an agreement between two or more people to commit a crime. Even if the people do not carry out their plan, the fact they have agreed to carry out the plan is a criminal offence in of itself. Parties to an Offence Aiding – anyone who helps someone commit a crime can be charged with the same crime. Abetting – anyone who encourages someone to commit an offence can be charged with the same crime. 2 But note that Parliament limited this right as a result of the Supreme Court of Canada’s decisi on in the case of R. v.
Daviault . 3 To be convicted of aiding or abetting under the Criminal Code, it must be shown that: 1. the accused knew the other person intended to commit the crime; and 2. the accused actually helped or encouraged the other person to commit the crime. It is not enough that the other person was present at the crime scene and did nothing to stop the crime. Accessory after the Fact An accessory after the fact is a person that helps a criminal escape detention or capture. This includes providing food, clothing or shelter to the criminal.
There is an exception for spouses – they cannot be held responsible for helping their spouse and someone escaping with their spouse. Does this rule make any sense? CASE: R. v. Daviault As a result of the Daviault decision, Parliament passed section 33 of the Criminal Code which now limits the right to use the defence of self-induced intoxication from drugs or alcohol. The law now states: It is not a defence to any crime that includes an element of assault or any other interference or threat of interference with the bodily integrity of another person where:
A. person suffered from self-induced intoxication; and b. the person’s conducted departed significantly from the standard of reasonable care generally expected by Canadian society and as a result were incapable of consciously controlling their behaviour; and c. the person threatens either voluntarily or involuntarily the bodily integrity of another person. The Criminal Court System Under the Constitution Act, 1867, the provinces were given jurisdiction over the administration of justice in their provinces. As a result, the provinces organize their provincial courts, provide courthouses and employ court staff.
The federal government does have the power to establish t wo courts: the Supreme Court of Canada and the Federal Court. While the Supreme Court of Canada will hear appeals of a criminal nature, the Federal Court never deals with criminal matters. Which courts hear criminal matters? This depends on the nature of the offence. 1. Summary Conviction and Minor Indictable Offences – there is a six-month limitation period in the laying of a summary conviction charge – there is no limitation in the laying of an indictable offence.
These cases are heard in the BC Provinci al Court – our lowest ranking provincial court by a judge alone – no jury. 2. Serious Indictable Offences – For serious indictable offences, the accused may choose the manner in which they are tried: BC Provincial Court judge, BC Supreme Court judge or BC Supreme Court judge and jury. Types of Criminal Offences Crimes of Violence – Offences Against the Person Violent crimes are offences that harm the human body in some way. Approximately 13% of all Criminal Code offences committed are violent (with 65% of those being simple assault).
4 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: (a) by an unlawful act (b) by criminal negligence (c).
By causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or (d) by wilfully frightening that human being, in the case of a child or sick person. When is someone dead? There are two possibilities: a. brain death b. 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.
That said, if the person is in a vegetative state as a result of the accused’s actions and then vital organ death results from the actions of medical staff (removal of organs for donation), then the accused may now be charged with murder. 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. Killing by Influence of the Mind No one commits culpable homicide where he causes the death of a person: (a)by any influence on the mind alone;
Or (b) by any disorder or disease resulting from influence on the mind alone This section does not apply where a person causes the death of a child or sick person by wilfully frightening him. Consider the following case of an Ottawa University student: http://www. theglobeandmail. com/news/toronto/man-charged-with-aiding-suicides-over-theinternet/article1367065/ Murder is defined in s. 229 of the Criminal Code as where a person causes the death of another and:
(a) (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. (b) 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! ).
See the following link for an example: 5 http://www.cbc. ca/news/canada/montreal/story/2005/08/09/qc-anniv20050809. html (c) 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). Murder in Commission of Offences – s. 230 Culpable homicide is also murder when a person causes the death of another human being while committing or attempting to commit any of the following crimes: a)
High treason or treason; or b) Sabotage c) Piratical acts d) Hijacking an aircraft e) Escape or rescue from prison or lawful custody f) Assaulting a police officer g) Sexual assault h) Kidnapping or forcible confinement i) Hostage taking j) Robbery k) Break and enter l) Arson If he means to cause bodily harm (serious injury) for the purposes of a) Facilitating the commission of the above offence; or b) Facilitating his flight (escape) after committing or attempting to commit the above offence; And, the death ensues from the bodily harm.
Or, he administers a stupefying or overpowering thing to facilitate the commission of the offence or his flight after committing or attempting to commit the offence, and death results. Or, he wilfully stops, by any means, the breath of a human being to facilitate the commission of the offence or his flight after committing or attempting to commit the offence, and death results. First-Degree Murder According to s. 231(2) of the Code, murder is first-degree murder when it is a) planned and deliberate;
b) 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 accuse d knew that the deceased was such a person or they were reckless as to whether the person was such a person); c) causes the death of someone while another offensive crime is being committed (hijacking, sexual assault, kidnapping); d) death resulted while committing or attempting to commit an offence related to criminal harassment; e) death resulted from using explosives to commit an offence in relation to a criminal organization (gang activity); or.
f) death results while committing or attempting to commit an indictable offence that could also be considered a terrorist activity. 6 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 reason able 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 Second Degree – life imprisonment without the opportunity for parole for 10 years 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 Unlike murder (which requires specific intent), 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: 1.
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 2. 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 a. where a firearm is used – up to life in prison and a minimum sentence of 4 years; b. in all other cases, up to life in prison but no minimum sentence. INFANTICIDE s.
233 A female person commits infanticide when by a wilful 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. 7 Suicide and Euthanasia Up until 1972, it was illegal to commit suicide (if you failed, you could be charged with a criminal offence! ). Currently, it is a crime to counsel or assist another person commit suicide.
This has become controversial because some people argue that at the very point that they wish to end their lives, they are physically unable to commit suicide and that their only hope is ask someone to assist them. In 1994 Sue Rodriguez went before the Supreme Court of Canada to argue that the law banning assisted violated the Charter. While Ms. Rodriguez lost her case, there was a strong minority opinion of the Court that felt the law did violate her Charter rights (sections 7, 12 and 15). As attitudes toward suicide continue to change we may see the Supreme Court at some point reversing its position.
Penalties for counselling or assisting in a suicide Up to 14 years in prison. Euthanasia – mercy killing This is where one person kills another person (sometimes with their consent and sometimes without it). Many people argue that criminalizing euthanasia makes victims of those who cannot kill themselves and are suffering horrible pain. Others feel that to legalize euthanasia would put many certain groups at risk (the elderly and disabled). Currently, anyone who commits euthanasia would, or could, be charged with murder.
You should note that euthanasia is legal in Holland where it is tightly regulated and limited to situations where medical doctors agree to end a person’s life in certain circumstances (including that person’s request that the doctor do so! ). Assault There are three levels of assault. Level One ? 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 opening wearing or carrying a weapon or an imitation of a weapon.
For an assault, words alone are not enough – they 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.
(The Brashear and Bertuzzi hockey incidents, for example). Penalties for Assault 8 Level One – Assault 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 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: 1. Lack of mens rea – no intent. 2. Self-defense 3. Defense of others.
4. Defense of property 5. 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. Penalties for Sexual Assault 1. Sexual Assault a. Indictment – imprisonment up to 10 years; b. Summary conviction – imprisonment up to 18 months (no jury). 2. Sexual Assault with a Weapon/Causing Bodily Harm a. Indictment – with a firearm – imprisonment up to 14 years and a minimum of 4 years imprisonment; b. Indictment – without a firearm – imprisonment up to 14 years (no minimum). 3. Aggravated Sexual Assault 9 a.
Indictment – with a firearm – up to imprisonment for life and a minimum of 4 years imprisonment; b. Indictment – not with a firearm – up to imprisonment for life (no minimum). 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: 1.
Exception: Complainant is between 12 and 14 years of age: it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused: (a) is less than two years older than the complainant; and (b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant (thus a 13 year-old babysitter could be charged if she/he engaged in sexual activity with a 12 or 13 year old).
2. Exception : Complainant is between 14 and 16 years of age: it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if (a) the accused (i) is less than five years older than the complainant; and (ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (b) the accused is married to the complainant. 3.
Exception – Accused is between ages of 12 and 14: No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant. 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 a. Indictable – punishable by up to 10 years in prison with a minimum of 45 days b. Summary Conviction – up to 18 months in prison with a minimum of 14 days 10 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: a. Indictable – punishable by up to 10 years in prison with a minimum of 45 days
b. Summary Conviction – up to 18 months in prison with a minimum of 14 days 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: a. 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 b.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.
This is a hybrid offence: a. Indictable – punishable by up to 10 years in prison with a minimum of 45 days b. Summary Conviction – up to 18 months in prison with a minimum of 14 days 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) Every one 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 halfsister. 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 11 (c) the observation or recording is done for a sexual purpose. Evidence in Sexual Assault Cases When can’t evidence of the victim’s 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).
Defence to a Charge of Sexual Assault Consent as a Defence Consent may be a defence to a charge of sexual assault. That being said, the Criminal Code states that no consent is obtained when: 1. consent is expressed by words or actions of someone other than the victim; 2. victim is incapable of giving consent; 3. consent is induced by the abuse of authority or trust; 4. the victim shows a lack of consent by action or words; or 5. the victim having initially agreed to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue the activity.
Where Belief in Consent is not a Defence 1. where accused’s belief arose from his/her own self intoxication, blindness, or recklessness; or 2. where the accused did not take reasonable steps, in the circumstance