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CRIM 230 (59)
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CRIM 1207.docx

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Department
Criminology
Course
CRIM 230
Professor
Nathalie Fournier
Semester
Fall

Description
CRIM 1207 Sources of criminal law  A. Statues: all offences in Canada must derive must legislation i.e. federal statutes and regulations and provincial statutes and regulations. Federal legislations include criminal code, customs acts, Controlled Drugs and substances act… etc. provincial legislations includes highway traffic, public health and occupation safety  B Judge made Law: without doubt, judges, through the power of interpretation, create various meanings to statutes. The supreme court of Canada emphasized the judicial discretion as follow: the modern approach of statutory interpretation require that the words of the legislation be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act ad the intention of the parliament. o What are the factors/ limitations that effect judge interpretation?  1. Imperfect statutory drafting  2. Doctrine of stare decisis (to abide by the decision) lower court must follow higher courts, however, the supreme court of Canada can depart from its previous decisions.  3.historical origin of Canadian law. Does Canadian judges follow the wisdom of English case law blindly?  4. The use of secondary sources of interpretations i.e. Academic writing and law reform commissions.  C. Charter of rights and freedoms: 1. Purposeful interpretation of entrenched rights: supreme court of Canada explicitly stated that courts must adopt purposeful interpretation of the charter  Section 16-insanity as a defense  Almost all crime requires the physical (actus reas) and the mental element (mens rea) September 14, 2012  What is Actus Reus  There is acceptable meaning for the act requirement Actus Reus  However, requiring actus reus is essential to negate liability for mental element alone  Commentator attempt to defined Actus Reus unsuccessfully. Cook, Austin and Holmes defines it as “a muscular movement that is willed”. Other defines it as  the requirement of an act o 1. Of commission or o 2. In certain cases only, of omission o 3.by a human being o 4. That is voluntary o 5. Achieving certain consequences (if consequences are part of the offense definition  Act of commission R. v. Burt o The act of commission requirement best understood according to the Supreme Court guidelines. o The accused was charged with allowing someone to operate his vehicle with excessive noise contrary to law.  Act of commission-cont- Ambiguously defined acts. o The Supreme Court in a number of cases attempts to clarify vague statutes. o The term sexual was not defined in the criminal code. The court rejected the proposal that woman breast is not a sexual object. The court adopted objective test of whether a sexual context would be visible to a reasonable observer. o In the wide offense of keeping bawdy-house, the court required a proof of control over care and management of premises and some proof of some participation in the illicit activity o In labaye (2005) the accused, an operator of a swingers club, was charged with of keeping bawdy-house. The court replaced the former act requirement (determining the community level of tolerance) to more objective test (causing harm to the society).  Special difficulties: status offenses o Status offenses best defined as “attaching criminal responsibility to someone merely by reason of his status, capacity or physical situation apparently dispensing with he need for either act or omission as prerequisite for conviction” Examples: wandering being found in a common bawdy house or being a drunk in a public place. Typically this type of offenses are vaguely worded. o However, if the offense include an act requirement, all act requirement must be present. In any case the requirement of voluntariness is vital.  Acts of Omissions o Criminal responsibility for omissions can arise if: o 1. The statutory offense definition includes omissions, and o 2. There is a legal duty to act recognized in a statute of common law. o Should law recognize a moral duty to act instead of legal duty to act? o Good Samaritan law.. objection if we ask an individual they may risk their own life, o There are three main categories:  Offenses extending to mere omissions and also imposing legal duty to act: ex: failing to report a treason  Offenses that do not extend to omissions even if an independent statutory legal duty can be found. This type occur only by act of commission ex. Assaulting police officer  Offenses that extend to omissions but do not create a legal duty out side the offense. These are two main categories:  Law (the code) refer to a duty without definition ex. Permitting an escape by failing to perform legal duty.  The definition section uses wide words such as causes (as in homicide cases)  Omissions to provide necessities of life (is s.215 broad enough?) o 215. (1) everyone is under legal duty  (a) as a parent, foster parent, guardian or head of a family, o provide necessaries of life for a child under the age of sixteen years;  (b) to provide necessaries of life o their spouse or common- law partner; and  (c) to provide necessaries of life to a person under his charge if that person  (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and  (ii) is unable to provide himself with necessaries of life.  By a human being o In some circumstances, criminal liability can arise from the conduct of an animal or an agent, however, a human conduct, that allow the animal to harm, must be present. Ex. A horse causing an accident after braking a fence. o Notably, mandatory supervision on human acts does preclude liability. In devgan (2007) the defendant was found guilty of drug trafficking by describing unlawfully narcotics although a pharmacies should exercise independent judgment prior to dispensing any medication.  Voluntary o One of the fundamental requirement of Actus Reus is voluntarism. There is no basis for this requirement in the criminal code, however, the supreme court of Canada recognized the requirement is a number of cases in Parks the court adopted the following approach (…principle, fundamental to our criminal law, which govern this appeal is that no act can be criminal offense unless it is done voluntarily. In parks the court left the issue of sleepwalking to the jury. Sleepwalking was considered as a form of automatism o In daviault, the court recognized extreme intoxication as akin to automatism or insanity as a defense for sexual assault. o Automatism defined as a state of impaired consciousness, rather than unconsciousness, in which individual, though capable of action, has no voluntary control over that action o Automatism refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that control action (Parks) o Almost all automatisms as he product of a mental disorder leading not to an acquittal but to an NCR-MD verdict.  Restrictions on voluntarism requirements: a. Insanity o Insanity: Canadian courts distinguished between sane and insane state of automatism. Insane automatism is subject to the law of insanity. Sane automatism is a defense in these situations:  A physical blow  Physical aliments: carbon monoxide poising, stroke  Sleepwalking  Involuntary intoxication  Psychological shock  Negligence o At common law automatism defense was precluded in all cases by proof of negligence o The situation is not clear in Canada especially under Daviault. However, hopefully the supreme court will declare in a future case that negligence preclude the defense of automatism September 28, 2012  Constructive murder/ felony murder o Constructive murder is a killing committed by the accused or by an accomplice, in an attempt to commit, or during or immediately after the commission of a serious crime listed in former S.230 of the criminal code (such as robbery, escape from prison). Constructive murder also occur under S. 229 (c) where a person did anything for unlawful object that person ought to have known was likely to cause death o Constructive murder does not involve consideration of the accused’s state of mind in committing the act causing death, such as whether the accused o The supreme court in Vaillancourt and Mrtineau declared constructive murder to be unconstitutional because it violate S.7 and 11 (d) of the charter and it is not justifiable limit under S.1 o The court in Martineau set the minimum standard for murder conviction that such conviction “cannot rest on anything less than proof beyond a reasonable doubt of subjective forsight of death. In other words, the actor must possess knowledge of the likelihood of causing death to be justifiably convicted of murder. o Factual inquiry can only be answered by jury, question of law interpretation and application, mixed law/factual inquiry  Special difficulties S.229 Culpable Homicide o S229 of the criminal code, among other sections, defined culpable homicide o 229. Culpable homicide is murder o (a) where the person who causes the death of a human being  (i) means to cause his death, or  (ii) mean to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; o (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human, notwithstanding, that he does not mean to cause death or bodily harm to that human being; or o (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 to a human being, notwithstanding that he desires to effect his object o objective liability---ought to know  Constructive first degree murder constitutional o Both first and second degree murder carry a mandatory sentence of life imprisonment. However, under first degree murder the offense Is not eligible for parole until 25 years have elapsed. A judge can order parole under second degree murder after 10 years imprisonment and not more than 25 years imprisonment o First degree murder is a form of felony/ constructive murder ie. Murder committed in the course of committing another offenses list in S.231 (5) ie hijacking and sexual assault  Other doctrines emphasized by the supreme court of Canada o 1. Subjective awareness required for few crimes to reflect stigma and proportional doctrine (does stigma exist in almost all offenses?) o 2. Intentional conduct to be punished more than negligence (how about gross negligence) o 3. No constitutional requirement of foresight of the consequences o no need for subjective awareness if there is no moral stigma such as in white collar crime. o These guidelines are sometimes used to prove unconstitutionality  Three categories of crime fault for cimes o Subjective mens rea  Require awareness of risk  All individual factors considered o Objective liability  Marked by departure from the objective norm (reasonableness)  All individual factors considered short of incapacity o Offenses based on predicate offenses  Require objective foresight of consequences, no individual factors…  E.g. unlawful act of manslaughter, unlawful causing bodily harm  Mens rea: aware state of mind, guilty mind o Intention/ knowledge: mens rea can be either expressed or implied. The supreme court in Lucas asserted the common law presumption of subjective mens rea. Thus, where the statue is silent with respect to mens rea and it cannot be interpreted as a crime of objective negligence, it should be interpreted as an offense of subject mens rea o Recklessness (including advertent negligence) and willful blindness o Special states of mind: e.g. dishonest, specific intent  Forms of intention/ knowledge o Intent or knowledge: criminal code frequently express an intent requirement with words as intentionally, willfully, means to, with intent or for purpose. o Intent seems to have been constructed in sense of actual desire, end purpose, aim, objective or design o Intent could be general or specific o Intent or motive: motive for an act is the explanation of why the actor acted. Intent and motive do nt necessary coincide. In case of stealing to provide for your children, the intention is stealing while the motive is to provide for the children. In case of intentional assault, the actor intention is t
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