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Lecture 2

Part A- Lecture 2 soc 227

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University of Waterloo
SOC 227
Addie Nelson

SOCIOLOGY 227: LECTURE TW0 Topic: The Elements of Criminal Behaviour I. Crime as Harm : behaviour that causes pain, distress, or loss to other individuals, groups or oneself- we grasp this intuitively. The image of a criminal with a knife dripping blood is the most recognized image of crime. Crime can cause harm even if the harm to victim is not apparent is seen in hate proaganda e.g., *“Hate propaganda offences: First enacted in 1977 S, 319(1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group -“Communicating” - includes use of telephone, or any other audible or visible means -“Identifiable group” - any section of the public distinguished by colour, race, religion or ethnic origin - 2004: Bill C-250 - sexual orientation -“Promoting hatred”: “any writing, sign or visible representation that advocates or promotes genocide....Expression intended or likely to create extreme feelings of opprobrium, and enmity against a racial or religious group” - gender does not fall under this law *Criminal offence to advocate or promote the killing of members of identifiable groups based on colour, race, religion, ethnic origin, or sexual orientation with the intent to destroy that community -- this law is symbolically powerful, in seeking to forestall harm the criminal code is interested in forgoing harm without visible injury. However, not difficult to take advantage of loopholes in S.319(3). Eg KKK magazine. * Also an offence to publicly communicate statements which incite hatred to wilfully promote hatred toward members of these groups S. 319(3) No person shall be convicted of an offence under subsection (2) a. if he establishes that the statements communicated were true; b. if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject i.e., those expressing honestly held religious beliefs explicitly protected from prosecution (e.g., does not limit the freedom of those who are morally opposed to homosexuality to express that opposition) c. if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true d. if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada *Threshold set so high that rarely used – to prove that someone has set out to promote genocide is almost impossible because it is set so high. 1 e.g., R. v. Keegstra (1990) - charged with an offence under S. 319(2) -high school teacher who taught that the Holocaust (the killing of 6 million Jews during WWII never happened and that the “story” had been started by an international Jewish conspiracy. e.g., R. v. Andrews and Smith (1990) - charged under S. 319(2) -member of a Toronto-based political party that supported white supremacy; published a neo- Nazi that claimed that “non-Aryan” groups “inferior”/responsible for violent crime Both cases: Accused argued: (1) offences for which they were charged violated their freedom of expression as protected under the Charter (2) 319(3)(a) creates an unjustifiable reverse onus clause: shifts part of the burden of proof to the accused in a criminal trial (similar to a “mandatory presumption” - to avoid conviction, the accused must disprove, on the balance of probabilities, the existence of a presumed fact) N.B. *Reverse onus provisions and mandatory presumption subject to attack under the Charter for offending the presumption of innocence Keegstra - Alberta Court of Appeal - held that the section was unconstitutional and acquitted Keegstra Andrews and Smith - Ontario Court of Appeal - held that the offence does not violate the Charter Supreme Court of Canada: ultimately concurrent judgements in the two cases that law curtails freedom of speech. But our freedom of speech is not absolute. It des not give us the freedom to yell fire in theatre for example. Agreed with the Alberta court: that the offence violates the right to freedom of expression and that s. 319(3)(a) creates a reverse onus clause- don’t have to prove that you are innocent- the crowd has to decide that you are guilty. If you have to prove that you said what you said due to one of the clauses in S319 then there is a problem. However in a 4:3 split - majority upheld the validity of the offence Found both justifiable limitations R. v. Oakes (1986) “test” for deciding whether a clause is a “reasonable limitation”: can the law be justified 1. Whether the objective of the law is of sufficient importance to warrant overriding a right Minimum: objective must relate to concerns that are pressing and substantial in a free and democratic society- is the law sufficiently important in what it wants to achieve that we are justified to implement it? Oak test asked 3 following questions. 2. Law must be reasonable and demonstrably justified - “proportionality test” (i) is the law carefully designed to achieve its objective? -rationally connective to the objective -not unfair/arbitrary 2 (ii) does the law impair the right as little as possible? (iii) is the effect of the law on the right in proportion to the importance of the objective? (More serious the impairment of the right, more important the objective must be) Judgement: this limitation of speech and proving we are not committing genocide was seen as justified because of the importance of suppressing he spread of genocide in our society. “The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence detracts somewhat from free expression values, but the degree of this limitation is not substantial....expression can work to undermine our commitment to democracy where employed to propagate ideas anathematic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which...individuals are denied respect and dignity because of racial or religious characteristics. This brand of expressive activity is wholly inimical to the democratic aspirations of the free expression guarantee.” e.g., “victimless crime” – gambling (crime if it is not government run or charity run- hypocrisy); communicating for purposes of prostitution; euthanasia; suicide-assistance- these are seen as corrosive of morals fibre of society. - those who are least successful and down and out are criminalized however if girl puts add of “assisted shower” in paper then it is legal. -body of law that prohibit victimless crimes. Used as umbrella term to lump consensual crimes- can not legally consent but have so anyhow. We find criminalization of the most public overt of these activities. e.g., public nudity: has to be more than nudity to be charged S. 174 (1): “every one who, without lawful excuse, is nude in a public place or (b) is nude and exposed to public view while on private property, whether or not the property is his own, is guilty of an offence punishable on summary conviction c) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order However: has to be associated with some motive of sexual immorality; deviation; exploitation “lawful excuse” - dancer whose performance is legitimate entertainment Origin: attempt to control the Sons of Freedom Doukhobors religious sect of Western Canada for their defiance of Canadian law/traditional values -more radical sect members - resisted integration into traditional religious, economic and educational institutions - rejected church liturgy (believed that God dwells in each man and not in a church) -rejected secular governments -preached pacifism -refused to swear an oath of allegiance, send their children to school -confronted by police - burned property -frequently paraded nude through towns, particularly in southern B.C. -1932: 725 naked parading Doukhobors arrested, 150 children made wards of the government, remainder of group sentenced to confinement in a special camp on Piers Island in the Strait of Georgia 3 II. Nullum crimen sine lege: “No crime without law” -distinction between simple harmfulness (ethics) versus harm specifically forbidden under law (i.e., not just anti-social/sinful) *politicality of law” - in 1500 in Holland if anyone showed sympathy to Martin Luther then women would be drowned and men beheaded. Shows that no behaviour that we don’t think of as a crime has been made illegal in all countries. - killing: we say killing is unquestionable however we excuse killing in war, self defence, in reaction to provocation, post partum psychosis- politically of law is evident. What we see as crime is variable. For example chile e.g., freedom of information laws versus *Chile: “contempt of authority” - reporting of “dangerous information”- those who make available information that can harm those in power can be charged with contempt of authority because of demoralizing society. *Democratic Republic of the Congo: reporting that might “demoralize” the public- news reporters that report word that makes society critical of government or “demoralize: the public than you have committed a crime. Evidence of social construction of law: N.B.: In Canada: numerous “crimes” have been challenged pursuant to the Charter, with the result that the behaviour may be decriminalized unless and until the cases are either successfully appealed or the legislature re-drafts the legislation so it conforms with the court’s interpretation of the Charter e.g., anal intercourse and age of consent- we still don’t evaluate all forms of sexual activity as equal- heterosexual bias. S. 159: “(1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction. (2) Subsection (1) does not apply to any act engaged in, in private, between (a) a husband and wife, or (b) any two persons, each of whom is eighteen years of age or more, both of whom consent to the act...” Ontario Court of Appeal, R.v. M.C. (1995)- violates the equality provisions under s. 15 of the Charter (discriminating on the basis of age)- whenever tested as unconstitutional the courts have always agreed (whether n basis of sex or age), there hasn’t been an attempt to strike down the age to make it equal. - Crown: argued that protecting young persons from engaging in a type of sexual activity that leads to an increased risk of transmitting HIV is a substantial social objective that justifies limiting equality rights under s. 15 *Since then various provincial courts have ruled that this law is unconstitutional 4 e.g., polygamy - illegal in Canada since 1878 S. 293: “Every one who (a) practices or enters into or in any manner agrees or consents to practice or enter into (i)...any form of polygamy or (ii)...any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage; or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in paragraph (a) guilty of an indictable offence and liable to imprisonment of a term not exceeding five years.” 1998: Ali v. Canada (Minister of Citizenship and Immigration) 2000: United Effort Order and Attorney General of B.C. 2007: B.C. prosecutor Richard Peck appointed by Attorney-General Wally Oppal to submit a legal opinion on polygamy 2008: Peck reported 5 III. Actus Reus : the guilty or wrongful act: -a certain type of conduct -a consequence of that conduct -the circumstances surrounding the conduct - if can prove it was voluntary and intended for harm can be charged. 1. Conduct: may be an act, an omission or state of being Most crimes - requires some act (i.e., a “voluntary movement”) to be committed e.g., throw a punch - voluntarily move arm e.g., shoot a gun - pull the trigger voluntarily *“Omission” - failure to act when there is a legal duty to act -brought dog to new apartment and knew that landlord could not discriminated against because of dog. After month of moving in you learn that the landlords would be yelling and screaming and man would brutalize woman. Approach man about counselling but the man dismisses and so you think at least I’ve tried. One day you come back home and find he murdered his wife. Have you committed a crime by omitting to do something (criminal wrong)? Or can be sued by couples adult children for lack of action (civil wrong)? --- have done nothing criminally wring because of relationship to the persons and victims- not childcare worker, parent, doctor etc. ---In Ontario we have a good Samaritan act which is limited and specifically addresses medical care providers and go to assistance of injured people outside of medical setting. Immunizes health responders who respond outside of ideal setting by being sued by person they helped if what they did turned out to be ineffective or worsened injury. ---Quebec imposes that people act as good Samaritans, not in Ontario. e.g., S. 215: “Every one is under a legal duty (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of 16 years...”- have certain responsibility to person who is under your supervision S. 129: “Every one who, ...(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do guilty offence”- more likely to be convicted if it is uniformed officer than a plain clothes one because not easily identifiable as a police officer. Creates duty to act to assist a police officer when requested to do so Imposition of duty: e.g., S. 79-80: “Every one who has an explosive substance in his possession or under his care or control is under a legal duty to use reasonable care to prevent bodily harm or death or damage to property by that explosive substance...Every one who, being under a legal duty...fails without lawful excuse to perform that duty, is guilty of an indictable offence... e.g., S. 242: “A female person who, being pregnant and about to be delivered, with intent that the child shall not live or with intent to conceal the birth of the child, fails to make provision for reasonable assistance in respect of her delivery is, if the child is permanently injured as a result thereof or dies immediately before, during or in a short time after birth...guilty of an indictable offence...” 6 “State of being” or “status” - Reason for this law is rooted in History: 1576 poor law, 1624 statute of 21 James 1, 1643 U.S. Bastard Law—women who got pregnant out of wedlock (maids, cooks) and no pressure for men to provide. Responsibility fell upon churches which became burdened and strained their monetary funds. The Law tried to help by passing the Poor Law- which made it a crime for a women not to name the father of her child and for the father not to provide some form of support. Law was further strengthened by Statute of 21 James but it was never effective because young girls realized if they stepped up and accused lord or master of getting them pregnant that it would ensure they would never get job in a rich household again. Increase of babes born “still born”- they killed their babies to avoid public. It became presumptive evidence that the mother had killed her child if it was not welcomed upon birth or if it was illegitimate. If child died it was presumed that you killed the child unless they saw that you prepared for the baby. The Bastard Law- notion that women should be called to account if child turned out dead. The law we have today is a relic but still endures today even though it is intended for specific time and type of women. S. 174(1) being in “state” of nudity- -- don’t really have to do anything to show state of being. If bought stolen computer unknowing then you are in state of being. S. 354 (1) Every one commits an offence who has in his possession any property or thing...knowing that...[it] was obtained by...(a) the commission in Canada of an offence punishable by indictment...” -state of being: “having in his possession” anything that was obtained by crime S. 201(2) : “Every one who (a) is found, without lawful excuse, in a common gaming house or common betting guilty of an offence” -no act/omission necessary; simply being “found in” sufficient e.g. S. 91: unauthorized possession of a firearm e.g., S. 458: making, having or dealing in instruments for counterfeiting e.g., S. 351(1) possession of housebreaking instruments without a lawful excuse Elements of Actus Reus (A) Conduct: (1) “Voluntariness”: general principle of criminal law that a person’s act/omission must be “voluntary” if s/he is to be held responsible for it (2) “Innocent Agent”: person will not escape criminal responsibility by using the innocent actions of someone else to achieve an unlawful purpose 7 e.g., Joe send 10 year-old brother Tom to deliver drugs and collect payment Tom - no idea that he was delivering drugs - innocent of any wrongdoing Joe - guilty of trafficking even though not involved in actual sale Tom’s actions - considered to be acts of Joe B. Consequences N.B.: Some crimes do not require demonstration of consequences: - don’t describe consequences of actions just refers to act itself. e.g., S. 131: perjury- jury does not have to prove that due to perjury that injustice resulted. e.g., S. 49: “Acts intended to Alarm Her Majesty or break public peace”: “Every one who, wilfully, in the presence of Her Majesty, (a) does an act with intent to alarm Her Majesty or to break the public peace, or (b) does an act that is intended or is likely to cause bodily harm to her Majesty, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.” e.g., S. 365: practising witchcraft: “Every one who fraudulently (a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration; (b) undertakes, for a consideration, to tell fortunes, or c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found.”- This is concerned with fraud not religion of Wicca etc. even if no demonstration of actual harm **Nevertheless - consequence generally crucial element of most criminal offence. Examples following: S. 222 (1) “A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”- no specificity of acts that resulted in offence. S. 430 (1) “Every one commits mischief who wilfully (a) destroys or damages property....”- doesn’t mention how, emphasises consequences. In both: Code does not mention any particular conduct (e.g., shooting, stabbing, planting a bomb; throwing rocks through the window; breaking down a door) Instead: crimes mention a consequence without mentioning any particular act or omission C. Circumstances: Usually, conduct is not criminal unless it is committed in certain circumstances that form part of the actus reus of a crime -the surrounding or “material” circumstances - law takes certain behaviour and states it as acceptable in some situations and not allowed in others. Seen in cases of sexual assault. e.g., “Rape” v. “sexual assault” - before 1983 rape would be focused on in terms of sexual offence. Rape- acts that offended public morality. Part V of Code (offences involving public morals and disorderly conduct) 8 S. 143: Rape: “A male person commits rape when he has sexual intercourse with a female person who is not his wife (a) without her consent; (b) with her consent if the consent (I) is extorted by threats or fear of bodily harm; (ii) is obtained by personating her husband, or (iii) is obtained by false and fraudulent representations as to the nature and quality of the act.” - by definition only men can commit rape. Then says act must include penetration (specific type mentioned)- if no vaginal penetration happened it was not considered rape. Victim must be a female who is not wife even if legally separated. Without her consent -doesn’t say unwilling. Consent can be invalidated if man was impersonating husband. “Rape”: “sexual intercourse is complete upon penetration to even the slightest degree notwithstanding that seed is not emitted.” King v. Harms (Saskatchewan Court of Appeal) - “doctor”- farm girl and her father. Sexual Assault (Positioned with “Offences Against the Person”- we now do not have rape but assualt Actus reus: sexual touching without consent - moved from moral law to section with offences against of person. This is to show that this is not an act of sexuality but in offence in an act of conduct. S. 244(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to another person, directly or indirectly; (b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has the present ability to effect his purpose; or c) while opening wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault Note: Code - does not define the term “sexual”; task left to the courts e.g, R. v. Chase (1987) - neighbour grabbed 15 year-old girl by shoulders and grabbed her breasts neighbour - convicted of sexual assault Court of Appeal: overturned conviction and substituted conviction for assault on grounds that “sexual” requires involvement of the genitalia Supreme Court: overturned court of appeal’s decision: Reasoning: “sexual assault does not depend solely on contact with any specific part of the human anatomy; rather, it is an assault of a sexual nature that violates the sexual integrity of the victim.” Test: “Viewed in the light of all the circumstances, is the sexual nature or carnal context of the assault visible to a reasonable observer?” Relevant factors: part of body touched nature of the conduct the situation in which it occurred any words/gestures accompanying the act 9 accused’s intent or purpose, including the presence/absence of sexual gratification However: “Sexual assault does not...require sexuality or sexual gratification. A misguided and primitive disciplinary exercise that is an aggression act of domination, which violates the sexual integrity of the complainant and constitutes an assault, may be a sexual assault.” “All other surrounding circumstances, including threats, which may or may not be accompanied by the use of force.” Sexual assault and rape are used synonymously but they are not! Rape is gender specific towards women that is not his wife. Only way a husband can be convicted of rape of wife is if he aided another man to do so. Sexual assault is not gender specific and both men and women can rape and be victims. No marital exemption. Lacks what sexual assault is in its inception so we have judgements being made in lower courts as they attempt to grapple with what sexual assault might be and how we distinguish between sexual assault and plain assault. Eg of girl who had her breasts grabbed and judge deemed beard and breasts both secondary sex characteristics. e.g., R. v. Kindellan (1988) accused male stripper; pulled female patron to stage, handcuffed her and pulled her hands back and forth between his legs. Had performed this part of his act on more than 50 other occasions without complaint. However, woman complained and man charged with sexual assault. Was the above a “sexual assault”?- the consent to be a viewer does not mean her consent to be a participant. IV. Mens Rea: The Guilty Mind *The courts recognize several types of mens rea: intention, knowledge, recklessness, wilful blindness, penal negligence, mens rea and the Charter, and absolute liability offences N.B.: Intention is not the same as “motivation”; motivation - the final product aspired to e.g., police deviance- end product sought to accomplish might in own mind be altruistic (spare family of suffering). What did they seek to accomplish by engaging in particular act. Police officers deliberately set fire to hells angels club house. And when asked why they justified it by suggesting that their presence in a community should be recognized as toxic. Jean-Paul Brodeur (montreal professor), the “finis reus”- to capture these types of deeds “ends justifying the means” excused by noble motives. Motive can sometimes be relevant- this is seen when blue coat crime is being convicted. e.g., prosecution can offer a motive as evidence of the intentions of the accused- e.g., sentencing - an accused who has been found guilty of a crime may receive a lighter sentence from a judge if s/he acted for a good motive (e.g., “mercy killing”) rather than a bad motive (e,g, killing for insurance money a. Intention: subjective monitoring and control of behaviour; the immediate control we possess over our conduct and the use of such control to fulfill our objectives and desires 10 e.g., pull trigger because I intend to shoot -Many Code sections clearly require intention by using words such as ‘intentionally, “wilfully” or “means to” S. 129: “Every one who (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an guilty of...(e) an offence... * person guilty only if s/he intends or means to wrongfully obstruct/interfere with officer * R. v. Chartrand (1994) Supreme Court of Canada: where intent required, enough to prove that accused foresaw the consequence as a “substantial certainty” (1) Some offences - require a special or ulterior intent - “specific intent offences”: an offence that requires an additional intent beyond the intent to achieve the immediate result; an intent to further an illegal goal -person commits one wrongful act for the sake of accomplishing another In general - indicated by the words “with intent”, “for the purpose of” or similar words S. 348(1) Every one who (a) breaks and enters a place with intent to commit an indictable offence guilty of an indictable offence...” Must be shown: accused intended to break and enter + did so with the specific intent to commit an indictable offence (e.g., theft) e.g., broke in to find shelter from storm - offence not committed e.g., Yet - not necessary to show that the person actually committed an indictable offence; enough to show the person broke and entered with the intent to commit an indictable offence e.g., S. 343c): Every one commits robbery who assaults any person with intent to steal from him assault here = “lesser-included offence”: an offence contained within the major offence that has some - but not all - of the elements of the major offence (2) General intent offences: an offence that does not require a specific intent Simply - an intent to achieve the immediate result - for the most part, easier to prove - offence committed for its own sake, with no ulterior motive or purpose -Supreme Court: “acts done intentionally (i.e., not done by accident or through honest mistakes). However, rather than involving the mental process of forming a specific intent [as in the case of specific intent offences], may be purely physical products of momentary passion” e.g., assault One of the significant differences between specific intent/general intent offences - the availability of the defence of intoxication 11 Classic case: R. v. George (1960) (classic case of intoxication as a defence to a specific intent crime): -violently manhandled an 84-year-old man until victim gave George his money; charged with robbery and included offence of assault; raised defence of intoxication. Found - not guilty of robbery (specific intent crime: assault with intent to steal) but guilty of assault (general intent crime) Reasoning: accused too drunk to form the specific intent to steal but could form the intent to apply force to another person Suggested: intoxication by drugs/alcohol not a defence to a criminal charge but, could be a partial defence to a charge of committing a specific intent offence Accused could still be found guilty of any included offence if it only required general intent R. v. Daviault (1994) - accused charged with sexual assault (a general intent offence) of an 85 year-
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