LAWS 3306 Lecture Notes - Lecture 5: Consensual Crime, Mens Rea, Indictable Offence

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9 Feb 2016
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LAWS3306V Week Five Lecture February 9, 2016
Charter of Rights and Freedoms
Continuation from last week...
Substantive Criminal Law- Charter and Murder Provisions
- Viancourt 1987 SCC decision
- a cautious and unlucky robber
- robbery completed with his friend.. told only to bring knives but his friend brings a gun
- he takes the bullets but later his friend goes back in with the gun and kills someone
- Viancourt has the bullets on his possession
- guilty of murder whether death was intended
- goes to SCC and strikes down his murder conviction because it is a life sentence for murder
- murder requires subjective proof of mens rea
- Desousa Case
- court said that once you pass a threshold of fault, the harm caused should determine societies
response
- upheld manslaughter|: requires objective foresight
- can still be subjected to life in prison for manslaughter
Regulatory and Corporate Crime
Absolute vs. Strict Liability
- BC Motor Vehicle reference at SCC
- dealt with using the Charter to ensure only those who are blameworthy, receive the punishment
set out in the offense
- a person driving with a suspended licence was absolutely guilty
- mandatory minimum and would get jail time no matter what
- argued that it violated section 7 right
- struck down as this being absolute liability and gave it a strict liability argument\
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Absolute liability: legal liability found in criminal law. To be convicted of an ordinary crime a
person must not only have committed a crime but also have the intention or guilty mind (mens
rea).
Strict liability: without a finding of guilt, negligence or intent the claimant need only to prove
the act occured and the defendant was responsible.
This week....
What is a victimless crimes?
- Packer tried to argue that these are consensual crime, mutual transaction
- prostitution, hate propaganda, gambling, etc.
- most proactive police behaviour deals with these issues
- due process would disrupt the assembly line with these matters
- since Packer wrote his theories, the definition of harm was limited to physical harm, this
definition has expanded to... a risk of future violence, psychological damage: anxiety or fear,
anything contributing to unequal societal relations
entrapment: a practice where law enforcement induces a person to commit an offence that
would have otherwise been unlikely that they would commit.
Change in "Political Case"
criminal sanctions: penalties used to provide incentives for obedience of the law (rules or laws).
- Canada has become more receptive in criminalization certain offenses, compared to USA
- political case on these crimes has also changed... moving from accused ( due process) vs states
rights (crime control), to accused (due process) and victims or potential victims
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- these new political cases were more likely to produce judicial results that upheld criminal
sanction to protect victims and people from becoming victims
- pluralistic politics of victims rights: there are debates on using the criminal enforcement
- Assisted suicide: Sue Rodriguez
- groups of people fighting for what disabled people want before and against assisted suicide
Prostitution
- changes before and after the Charter
- Packer criticized prostitution laws
- if a person wants to sell or buy sex, it is their own moral decision to do so
- when dealing with this act, to catch people, the state (police) would act as the seller or buyer
- prior to the charter, the most successful due process agreement was a case called Hutt (1978)
- SCC quashed conviction of a women who explained to an undercover that she was a prostitute
- judge held that only pressing and consistence act qualify as a nuisance
- created three offences to deal with prostitution:
- communication for the purpose of engaging in prostitution
- criminal to keep a common body house
- live off the avails of prostitution
- when the Federal government enacted these laws, they defended the law in a crime control
perspective ... a way of bringing back order into the streets
- issue: fact that these laws were very punitive in nature-- sex trade workers were usually the
ones being affected not the johns or ones buying the sex. They are often the victims.
- critique: it was based on criminalization of politics. The legislation failed to recognize it as a
social or economical problem. Only dealing with this issue with the criminal law system, not
helping victims, vulnerable, etc. It creates a vicious cycle of violence.
- because of the fact that they would eventually be caught and punished again, sex trade workers
would take more risks... resulting in higher rates of violence
- Robert Pickton: able to pick on his victims because they were sex trade workers trying to hide
their work
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