Class Notes (810,368)
Canada (494,091)
Criminology (2,414)
CRM2300 (281)

Criminal Justice and Penal Norm all of Fall 2013

66 Pages
Unlock Document

University of Ottawa
Valerie Steeves

CRM2300A- Criminal Justice and Penal Norms September 10, 2013 The Common Law 1. … is discursive • Problem solving thru text and talk Ex. Dudley and Stephenson • Law in Canada isn’t really contained in the criminal code itself • Law is made up of a series of specific cases or stories about problems that have happened in the past • Developed as a way of avoiding the violence that happened • Set up a structured process so that each side of the story is able to be heard to avoid the revenge • Common law is just collection of past conflicts • Gives us a window onto our values as a society (1) • Because it is discursive and we problem solve through text and talk and our decision is able to be persuaded to go one way or the other (2) • All conflicts happen in a context. The common law is an excellent window on politics and power relationships (3) • All about good, right and what’s moral • Articulate and describe what we value as a society • There are two sides to each story Dudley and Stephenson: • John Henry Want buys a yacht and needs to get it from England to Australia • Dudley – Captain, Stephens- Mate, Brooks- Seaman, Parker- Cabin Boy • Boat was not properly fixed and it ends up sinking. The crew end up in a life boat with only a little bit of food • Parker gets sick and on day 19 D and S vote to kill and eat Parker and Brooks does not participate but all three of them eat him • Then on day 24 they are rescued • The guys didn’t hide the fact that they killed the boy and even kept some bones to bury him in England • Dudley and Stephenson are charged with murder • Issue: they admit they killed him but they explain that is was a necessity. Defense of necessity? • Legal Decision and Reasoning: necessity – clear and imminent peril (danger is about to happen) that if you don’t do it something bad will happen. And there is no legal alternative available. They murdered Parker and that is WRONG. It was a necessity but they still find them guilty. The window on power ie. Cabin boy died. If we let them go then the whole world might start partaking in cannibalism. More violence because of the decision to kill them by hanging. Commute the sentence: they did convict them but only put in jail for 6 months. • Can’t find the law in the criminal code • Rather than see the common law as a fixed body of rules and regulations it is preferable to view it as a living tradition of dispute resolution. Because law is a social practice and society is in a constant state of agitated movement, law is always an organic and hands-on practice that is never the complete or finished article; it is always situated inside and within no outside and beyond, the society in which it arises. 2. … a historical creation • The common law was influenced by England • Starter in 1066 in Norman Conquest • It was a way of asserting control over their territory and legitimizing the kings authority • All the kings send out itinerant (travelling) judges go out to all the different villages and when they arrive they ask to hear disputes and administer the “king’s justice”. • Instead of the people bringing the problems to the king the king sent judges to the people. To assert control. They are now the government. • Doctrine of precedence: process where you decide disputes by referring to decisions you made in the past where the dispute was similar and use each case to develop rules to apply to similar cases in the future • Develops a doctrine of precedence in order to make the decision making perceived as fair • In order to be fair there has to be certainty • Can’t be arbitrary because it delegitimizes the king’s justice • Doctrine of stare decisis: lower courts are bound by the decision of higher courts. (See booklet notes for table of courts) • Start in provincial court then they get appealed up to the Ontario court. And once the court above comes up with a decision then the lower courts must follow. Supreme court of Canada is the highest court. • In Canada, private law (property rights, marriage, etc.) are determined by the law that is used in the area at that time. Quebec- civil law and the rest of Canada- common law • Public matters (criminal law, constitutional issues, etc) that have to do with the relationship between the citizen and state are dealt through common law. • 1890- codifying the criminal law (writing the rules in a book) • 1892- passed the first criminal code of Canada • Collection of common law rules • Up to 1955 judges could still create new crimes and defenses • In 1955- revised the 1892 criminal code and decided judges could not create new crimes except contempt of court (if you violate the judges protocol in their court you can be charged with contempt of court). Judges can still create new defenses. • Legal reasoning that is important. Even with a criminal code the law is still flexible. • Crime to possess or distribute porn that has children under the age of 18. Even private diaries and pictures you can’t be convicted. • Flexibility in the common law because the judges are allowed to create new defenses. • Have to test everything against the charter. • Distinguish a case on its facts (say two cases are different when they really aren’t that different) • Overturn previous decisions 3. … steeped in liberal principles that define relationship between citizen and state through the principles of due process • 6 liberal principles of CJs (in course outline) • Decisions that make up the common law are shaped by a particular legal culture * • Liberalism: focuses on individuals (Bentham) the way the system thinks about criminal justice. • Society is made up of individuals. It is a collection/aggregate of individuals who are rational (1) • Liberalism decided that individuals have the right to make their own decisions. • Rational individuals weigh the costs and benefits and only act when the benefits outweigh the costs (2) • Deterrence is a very liberal principle. Therefore increase the costs. • Individuals in society agree to obey the law to protect their freedom from transgressors because it’s rational to do so (3) • Make a deal with the state and give up a little bit of freedom for protection (social contract) • Which makes for more freedom in the long run • The role of the law/criminal justice system is to maximize individual freedom (4) • Purpose of criminal justice system is to protect liberty • But when the cjs punishes the transgressor, it takes away the transgressor’s liberty or property (5) • Creates a problem because the whole purpose of the law is t maximize individual freedom • Because individual liberty is so important the cjs should only punish individuals who made a rational decision to act (blameworthiness) (6) • Criminal law is all about constraining the state. The only group within society that can break down a door is the state Cjs designed to constrain: 1. Executive (state, gov., cops, military) power especially government’s use of violence. Restrict cops ability to use force • Rule of law : everyone including the government have to obey the same rules 2. Judicial power • Violence used to punish • Rules are set up to avoid abuse of power • Focus isn’t on protecting the victim it’s to protect the defendant • Because this is the part of the state that can take away your liberty Ashworth and Zender and the due process model • Two separate value systems at play: 1) Crime control model: assumption that the criminal justice system is built to repress crime and managing crime • Get defendant to plead guilty as quickly as possible just to get him off the streets • Assume that if the cops get illegal or unconstitutional evidence and they break the rules, and find proof that someone has broken the law this perspective won’t follow the constitutional rights of the individual. Illegally obtained evidence should be admitted at trial. • Once someone is convicted you shouldn’t give them an appeal because that’s just a waste of time and money • Often the position presented by the police • Conclusion- the law , legal rights and courts get in the way of justice • Repress and manage crime • Punishing crime efficiency • Protecting victims • Rules should be bent because they deserve efficiency 2) Due process model: (based on liberal principles) • Assumes the role of the cjs is to protect vulnerable individuals from the overwhelming power of the state (police and crown attorneys/prosecutors) • Because of the imbalance of power we use procedural rules (presumption of innocence, evidence, etc.) to protect the individual from abuses of the state’s power • Criminal law is meant to punish/constrain abuse of power by state and its agents • Criminal law itself is based on the due process model. This is what the system is trying to do. • Criminal code: section 2,7-14 • Judicial review of police action to ensure they follow the procedural rules • Maximize individual freedom • Constrain state power against the defendant State models I. Preventative state • Risk of crime is intolerable • Therefore you don’t want people to act freely II. Regulatory state • Crime is inevitable, so manage rather than prevent III. Authoritarian state • State can use force without procedural protections IV. Liberal state • Purpose is to negotiate a democratic relationship between citizen and the state September 17, 2013 Role of the Defendant and Victim Role of Defendant: • Party to an offense • Section 21 CCC (Dunlop) (Curran): everyone is a party to an offence who o Commits o Aids o Abets • Section 21 (2)- Common intension (Puffer, McFall and Kizmya) o See criminal code Puffer, McFall and Kizyma (1977) Manitoba Court of Appeal • Decide to go to a park and beat gay men. “Roll some fags”. Find someone they assume is gay. All three tie victim’s arms and legs. Then all three beat the crap out of him. Then they all walk away. Kizyma goes back and ties a pillow over the victim’s face so he can’t call out. The other two have no idea Kizyma did what he did. Victim suffocates and dies. • Are puffer and M partied under 21 (2) because they share a common intention? • Parties M and P form a group with K and decide to do something together aka assault victim in the park. (yes) • Is what they decided to do together unlawful? (yes) • Ought or should M and P have known that it was likely that K would commit and offence (murder) (yes) • Then M and P are parties to K’s crime • Convicted as parties to the murder • Exception when crime =murder will only convict P as a party to murder if the person we convict actually intended to kill the victim • CJS • State vs. Defendant = individual citizen accused of a crime • Regina Queen against Dunlop • Victim is like any other citizen – potential witness • Stare Decisis: lower courts have to follow the highest courts decisions Section 21 (1): Regina vs. Dunlop (1979) Supreme Court of Canada (SCC) o Both men who watched convicted of rape (did they aid and abet the rape?) o Appealed to SCC o Aiding and Abetting is more than presence at the scene o It requires encouragement or facilitation (keeping a lookout enticing victim away from bar preventing escape) o Aiding and Abetting= encourage or facilitate Curran (1977) Alberta SC o Defoe decides he wants to rob Armand. Defoe throws him down a set of stairs. Curran watches this. Defoe gouges his eyes out so he won’t be able to see who did it. Curran decides he can still talk when he is blind so Defoe chokes him to death. o Did Curran aid and abet? = party to murder? o Supreme Court says he did something but when he said that a blind man can still talk did he mean to aid/abet (encourage)? Has to do it on purpose to encourage. • 1982 Charter: not deprived liberty except in accordance in principles of fundamentals justice • Must follow rules of Due Process which reflect liberal values • Convicted of murder= greatest loss of liberty due to life imprisonment • Rational process costs and benefits Role of the Victim: • Victim not a part of the justice equation • Liberal defense and equality defense of victimhood • Equality of defense and of victim o (ex. Goetz, the subway vigilante) o 1980’s NYC o Three men rob him of electrical equipment while he was on the subway and they threw him into a plate glass door which injured his chest and new. Then he applied for a permit to own a gun. Carries illegal gun on the subway. Dec 22 1982. 4 young men get on the subway Allan, Canty, Cabey, and Ramseur (19/18). All stand around Goetz and Canty says give me 5$. Intended to rob him. Shoots four shots at each of them terrifying them. He hits Canty in the chest, hits Allen in the back, Ramseur’s arm and then Cabey missed and then Goetz walked up to him and shot another shot. With a dumb dumb bullet which permanently paralyzes him. Hits the press cause cops are looking for Goetz. The entire city praises the subway vigilante and calls him a hero. o Goetz was found and charged with assault and being in possession of an illegal weapon. Goetz is white and four victims are black. Have to look at how liberalism defines victimhood. o Liberal definition of victimhood: a victim is an individual who loses property or liberty because of the actions of an individual transgressor o Race color – coded. (Economy status, race, etc.) o Goetz becomes victim and the 4 kids become transgressors. o Criminal justice system is blind to this because it assumes all individuals are treated equally in society. o Alternative definition of victimhood: look at historical patterns of discrimination that lead to systemic inequalities that affect people’s life chances. All of a sudden race, wealth, gender, religion, etc. become visible. o If you get rid of the notion individual responsibility that is so central to liberalism then a system. o How would carter explain what they say? Criminal Trial as Social Ritual i. Reproduction of Political Authority • Cjs that’s suppose to build a relationship between the citizen and the state • Want to make sure that state authority isn’t abused • Truly concerned about force and violence on the part of the state • Want to create some mechanism to create the democratic relationship • Gable and Harris (readings) : single most powerful collective image of political authority is that of the court room • Ashworth and Zender (readings) : criminal trial is one of the most powerful tools of governments • Not concerned with solving conflict between victim and accused Court room/ criminal trial social ritual: o Similar setup as a wedding ceremony o Particular rules o You can’t swear, talk, be disrespectful in this space o A symbolically organized public space that’s designed to reproduce through repeated visible rituals of collective obedience to authority o Citizens agree to obey the law. State agrees to protect us from transgressor and both agree that violence vs. transgressors. Constraint violence against citizens o Weber: state authority rests on the states monopoly over the use of force. As long as there is a monopoly over force then they can stay in power. Can only retain power if people buy into it. More a state uses force the quicker they will lose power and the society will use force in return. If the only tool the state has to maintain their power/control is violence and use of force, the continuous abuse of that force erodes their legitimacy and erodes their power. o All societies develop rituals where citizens enact and reenact their collective obedience to the state’s authority as legitimate authority (ritual of legitimization) o All states have these rituals not just democracies • We use authority to create a democracy • Legitimate authority (monopoly over use of force) we use due process as a ritual • The criminal trial in our liberal democracy is the most potent/strongest ritual or legitimization • It’s the place and behavior where we ensure that the state can only take away an individual’s liberty if they complete a ritual showing they followed the rules of due process • Criminal trail = a morality play • We act out the relationship between the citizen and the state (just like wedding bride and groom)  states use of force and violence is reconstructed as legitimate authority and rule of law, freedom, justice ii. In symbolically Organized Space • All organized under a central floor plan Dias: raised platform the judge sits on o Central visual focus of the room o Surrounded by the symbols of the state (flags) o Canadian sometimes a picture of the Queen o Symbolizes the power of the state o Raised so the judge looks down on everyone to symbolize the state is powerful and impartial (not taking sides) Bench: the desk that sits on the Dias o Large, impressive and solid o Playing with power of dynamics with the set up of the room o Designed to signify the impenetrability and permanence of the state o Something greater than the individual judge o Require citizens to buy into the relationship Prisoners Dock: when prisoners are kept in custody o If you are in custody and it comes time for trial you have to sit here o Out of central visual point of room o Surrounded by railings, bars, cage or Plexiglas o Specific kind of space o Signifies the isolation, unworthiness and stigma of the accused o Intended to instill shame o Presence = signifies the fairness of the process and largess of state Counsel tables: on the left side there is the crown attorney (state)/ on the right side defense counsel (defendant) o Different teams stay on the separate tables o Ritual distance or separation of the two sides o They are opponents o Triangle connecting judge, and opposing sides o Location of the desks tells us who we watch o Accused is not part of the main interaction Bar: railing that runs across and separates the triangle from the public o To keep you in your place o Keeps the members of the public from the enactment of the ritual o Same time there is a aisle that comes up to the gate o Symbolizes an invitation for the public to participate but, still keep a ritual distance Gallery: where the public sits on both sides o Rows and rows of benches o Symbolizes that public presence is anticipated o Expect people to come o Presence is important o Ability to see the ritual is signified by the way the gallery is set up o We expect them to come as well as watch o Undifferentiated rows with no desks, no separate chairs which symbolizes the publics’ role as observers and what they are observe is primary interactions of the ritual Witness Stand o Immediately beside the bench o Raised above rest of the room but below the judge’s Dias o Raised above means there is a certain vulnerability. Placed where everyone can observe you o Below judge means that you will be most scrutinized by the state o Witnesses sit with other citizens in the gallery until they are called upon to go to the witness stand and aren’t allowed to leave until the judge tells them they can o Victim has no place in the court room what so ever o Victim is only there as a member of the public or as a witness o Witness participation is a duty of citizenship iii. Through Repeated Visible Rituals • Enact this ritual through talk and movement • Requires an enacting = words that have to be used and movements they have to do • Designed to enable this enacting • Rituals require space, action, participation and performance • Everyone stands up when the judge enters and can’t sit until they sit down • Supposed to bow to the judge if you leave the court room when they have sat down • Three main players in a morality play: judge, defense counsel and crown attorney called celebrants • Celebrants wear special clothes Ritualized dress o Judge and two lawyers will be robed o Robes have to be black o Black shoes only o Have to have pantyhose on that are black if you have a skirt on o This dress code is taken seriously o Enforced even in lower courts Ritualized Speech o “Do you solemnly swear to tell the truth and nothing but the truth so help you god?” o Arraigned: “you stand accused…” o “How do you plead?” o Can only plead “guilty” or “not guilty”- saying that they have to prove otherwise because they are presumed innocent until proven guilty o Gender certain amount of awe or respect o Requires that lawyers refer to each other as friends o Have to refer to the judge as you’re honor o “My learned friend” is used when someone does something stupid o “With respect” is used when you want to signify that the judge has done something o Never disrespect the court or the judge o Best outcome is absolute discharge = forget about the conviction and that this ever happened o Suspended sentence= going to keep it on record but no jail or penalty o Criminal record is a significant harm o With greatest respect = worst thing you can say Role of Police in Criminal Justice System i. Primary function of police is to be the interface(point of contact) between citizen and state 1) Criminological vs. CJs Perspectives • Policing is always political because policing has to do with relationships and regulations of power • Police- centric research Critical/radical police research (Insider’s point of view)---------------------------------- (Repressive instrument of the state) • Police centric has to do with the citizen and the state • Democracy isn’t a friendly place not everyone is polite. It is difficult for both citizen and police • State uses force in order to protect property • Police is the site where political power is negotiated and that’s embedded in law • Police are keepers of integrity and fairness of the CJs and to balance individual rights with society’s need for security • Whole point for CJs I to maximize liberty • Violence should only be used in relation to due process • Police have to follow the rules or the whole thing falls apart • Worried about protecting the individual from the state 2) Problems a) When state co-opts police for political purposes Criminal Law Political Power • Transgressors • Eg. Syria • Citizens • Using violence to advance the governments own political agenda • defined in law (due process • protection) or a crime • • Globalization – process of it and bring everyone into the rules of the market place have lead to more social unrest. Lead to an increase use of violence on part of the state • Developed world disrupted by globalization • Pressures of globalization has lead to an increased use of violence against political protestors • 1997- APEC (Asia- pacific economy cooperation) human rights abuses ignored to get into Asian pacific trade and make a lot of money. Have a meeting to establish trade relationships. Tons of human rights abuses by leaders. • Civil society Suharto is a symbol of human rights oppression • Student protest leaders all over • Have a meeting with security detail of Suharto and say they can’t bring guns but they say they are. And they say they will use force against the protestors if they insult their president • PMO of Canada says we have a political agenda and they are going to have it there anyway • There is a tent protest village there are no violent protestors. One protest leader got charged for assault because the microphone assaulted a police officer’s ear so that he wasn’t there the next day when the meeting happens • Before the people from Indonesia came out and saw the insults toward Suharto the RCMP used pepper spray and arrested in masses to prevent them from being killed • Violence was used against citizens to advance the government’s political agenda • What is the role of the police at this point? b) Police Culture • Tough line to walk • Conflict between the expectations of CJs (what CJs expects cops to do) and police culture (how cops view their job) • Majority of a police officers’ job has very little to do with crime • Vast majority of a police officers’ job is community helping • 75% of the time its traffic control • Police training doesn’t focus on the community helping it focuses of criminal code offences, criminal procedure and physical force training • Training reinforces a sense of mission, sense of danger, and a sense of authority • Creates an us (cops) vs. them (criminals) dynamic. • Depends on how we define bad guys. Systemic discrimination. Society is racist. • Due process mouth citizens • Assignment #3: focus on the abuse of force by the state. Monopoly over the use of force, what legitimizes it and what delegitimizes it. You can argue for side you believe in. Look at story and talk about how abuse of force delegitimizes state power. This story is very clear that there is abuse of force. System is to limit the force they use. What is the impact on our understanding of the states legitimacy when the abuse force? Can talk about criminal trial in this. Main: what does it mean when you give state monopoly of force and when it’s abused how does it affect legitimacy. c) Accountability for abuse of force • Just before this one of the officers a sergeant Desjourdy, had be up on an internal investigation involving another women in custody in a cell and he tasered her while she was in the cell. She is aggressive and had spat on him. He was investigated for using this force and they said he shouldn’t have done that and he was punished by being demoted for a 90 day period. Not first time he was investigated. Was sexually inappropriate with women in custody before. • Stacy Bond, hung out with friends, had a bit to drink then was walking home through the market on September 6, 2008. Charge was for open liquor but she had no possession of alcohol. After she asked why they stopped her, they come and take her down to the station. Up to the point to when they twist her arm there are no allegations to her not being cooperative. She cooperated got in the car and went into the station. • Then it gets weird when he decides to cut off her clothes but they only took off her top and left her pants and belt on. Desjourdy cut her clothes off. • She urinated herself because she was scared. When they put her in the cell like this for three hours the video shows that he was really close to her and she reacted as if he had touched her inappropriately. • We don’t have to explain that we aren’t doing anything wrong they have to catch us for doing something bad. We have the liberty to do what we want and don’t have to show our ID if we haven’t done anything wrong. • There has been an abuse of power. She is assaulted, exposed, humiliated. A. Exclusion of Evidence • Bond is charged with drunken disorderly in a public place • Her trial is for November 18, 2010 and she is the accused person in this trial • The crown has to call the police for evidence of what happened and the defense calls witnesses of people who were standing around when this happened • This was clearly an abuse of force. Appalled at the police behavior. • All police evidence is excluded because it was acquire through an abuse of force • Throws the charges out and acquits Bond • Provides protection for someone who has actually committed a crime Two things wrong with this method: • Courts administration of justice in disrepute. The state becomes a transgressor. Not designed to discipline the cop or hold the individual cop to account. Not worried about making the cop stop just worried about keeping their legitimacy. No impact on the officers at all • Evidence says clearly that throwing out criminal charges and evidence does not prevent cops from abusing their force. Has no deterrent effect. Has an opposite impact. Proves that the system doesn’t work. B. Disciplinary Hearings • Once the charges are thrown out there is a huge public outcry. • The next day the Ottawa police initiate an investigation Two kinds of disciplinary hearings: • Internal: focuses on the individual cop. Shows they did something wrong and will be punished but they don’t focus on the culture around policing that sees abusive force very differently. Notoriously ineffective because they don’t get to the problem of the culture of policing. • Public Complain Commissions: we can’t let cops police cops. Have public boards where citizen sat and looked at the complaints. Two problems: because police can lose job that’s a loss of liberty and property. So they apply Due Process which makes it really hard to find that the cop did something wrong. Sympathetic to the crime control model and by extension to the police. • Not very effective in holding them accountable C. Criminal Prosecution • Police have committed a crime and therefore you can charge them with committing a crime th • March 15 , 2011 Desjourdy was charged with sexual assault. 4 problems: (1) complainant is open to retaliation. Can make you feel very uncomfortable. Will probably be hassled for the rest of your life. You become visible to the police. (2) Crown Attorney has to cooperate against the cop. But, the crown works with cops on a daily basis so they need the cops’ cooperation. (3) burden of proof; beyond a reasonable doubt. (4) Won’t change the culture. • Desjourdy’s trial was very public. Weak explanation for what happened. Believes it’s a sexual assault beyond a reasonable doubt and acquits him. Easier to convict with assault harder with sexual assault. High and more serious the charge the harder it is to convict. D. Civil Actions • When you sue the police officer and the police force for money damages • December 2010 Bonds sued the Ottawa police for $1.2 million for assault • Burden of truth is on the balance of probabilities. Way easier to prove • Way more likely to succeed • Pretty straight forward and easier to win • It’s time consuming, expensive, and if you do win the damages are paid by the state and not the individual cop • This does have the potential to change police practice • Ex. Doe v. Metro Toronto Board of Commissioners of Police case (1986). In downtown corridor where there are apartment buildings. During the really hot days there was no AC so everyone just left their windows wide open. Balcony rapist would climb to the second floor balcony go through the window and rape sleeping women. Jane Doe was the last women raped. The police decided not to warn the women living in that area of Toronto because they wanted him to keep committing it so they can catch them. By the 4 , Jane Doe, the police caught him after the act. • Jane Doe sues for negligence due to the failure to warn. Need to stand up to your profession. Their defense was that women would become hysterical if they told them. She wins $175 thousand dollars • This lead to a change in policy. Take into account the women’s perspective. • Whole point of police function is to get the defendant before the court ii. Therefore, respect for initiating and supporting (by giving evidence) court proceedings (See “Arrest and Pretrial Custody” handout) Three kinds of offences: • Indictable offences: serious offences with more potential loss of liberty and therefore more procedural protections. Can choose whether you want to be tried by jury or judge. • Summary conviction offences: less serious offences with max penalty of 6 months or $5,000 fine and therefore less procedural protections. • Dual of hybrid offences: crown can elect to proceed by indictment or summarily – until the Crown elects, treated as indictable. This is because it’s better to give them more protection to protect their liberty. • Preliminary inquiry: when crown has to prove that they have a prime of facey (at face value) case. • Worst things you do more protection you get a. Arrest • Arrest: taking physical control of someone to detain them, by touching unless words of arrest are used and the person submits to the arrest. Main point is to be detained you’re not allowed to go where you want. State hesitant about this because you take away liberty. • Ss. 25-27: Can only use as much force as reasonably (reasonable= does NOT mean rational) necessary to arrest and actions must be reasonable and proportional. Proportionality is all about getting the punishment to fit the crime. Person making the arrest is criminally liable for any excessive force used. • From the codes point of view you shouldn’t really arrest people unless you really have to • OR: means when you make checklist you only need to check off one of the things • AND: means when you make the checklist you need to check them all off • S. 494: anyone can arrest someone: o He finds committing an indictable offence OR o He reasonably believes  He has committed a criminal offence AND  Is freshly pursued by someone with lawful authority to arrest him OR o If he is the owner of property, or his agents (security guard), and he find him committing a criminal offence on that property • Person making the arrest must deliver the person forthwith to a police officer • It MUST be an indictable offence that is being presently being committed in order for a citizen to arrest them • S. 495: a police officer (of whom are citizens) can arrest someone: o He believes, on reasonable grounds, has or is about to commit and indictable offence OR o He finds committing a criminal offence OR o He believes, on reasonable grounds, is subject of a warrant • Only person that can issue a warrant • Warrant is a judicial document that a court issues when someone shows that there are reasonable grounds that an offence has been committed. • Generally speaking, release the person unless/ only arrest if: (Bias in the system is always for release) o Can’t establish the person’s identity (won’t be able to find him again to bring him to court) o To preserve evidence (able to say what happened) o To prevent further offences (want to stop him from doing the same thing) o Reasonable belief that the person will fail to appear at court • Purpose of arrest is to get the person to the court • Police is supposed to release the person by giving him a summons (saying go to court) right away • Criminal Justice System’s perspective is that police are just citizens with some extra special powers. Job is to collect evidence and get them into court. • Arresting Officer release with summons or appearance notice • Officer in charge of police station release with summons, promise to appear or recognizance (max $500) without sureties or conditions • If they want to be more serious they make the accused sign for a promise to appear • Ask for recognizance- where the accused promises to come back and establishes he has property worth a set amount of money. If he doesn’t come back he’ll pay the money. Almost never enforced. b. Bail • Bail Court Within 24 hours of being detained o Primary Ground – simple promise to appear in court or sign a recognizance (no limit on amount) with a surety is someone else who has property with the amount needed and that person promises to get the accused to court. Also with condtions. o Secondary Ground – reoffend or interfere with administration of justice o Tertiary Ground – confidence in administration of justice • Bail judge decides whether you can be let out or not • Pretrial release or detention • To release with promise to appear, recognizance without sureties or conditions, or recognizance with sureties and conditions or detention order • System assumes everyone is rational and shares the same values/morals • Issue a detention order: you sit in jail until your trial Role of Criminal Trial • Set dates: court appearances until a trial date is set • Any time a accused appears in court then can plead guilty • Trial or guilty plea you have to start court process • Starts with the arraignment- when you read charges in open court and asked to plead • Guilty plea- crown reads the facts of case then crown and defense counsel make submission to sentence and court sentences • Not guilty- proceed with trial. Crown makes opening statement then the defense. Crown calls witnesses and defense gets to cross examine. If at that point it hasn’t been proven the defense can ask for an acquittal because they haven’t been proven guilty. If they do establish evidence for guilty. The defense calls witnesses and the crown cross examines. Then closing statements by counsel: jury (facts) and trial judge (law). Judge alone (facts and law). Then sentencing a. Adversarial System vs. Inquisitorial System Adversarial system developed in England (Criminal Law- deal with cases as they arise) 1. Role of criminal justice system is to protect individual rights • Individuals and liberty • Try to negotiate democratic relationship between citizen and state • Figure out what to do with conflict but keep in mind that it’s a person with individual rights and they can’t violate our rights because you don’t want ruin the relationship • Dealing with common law • Assumes the individuals involved is rationally self-motivated like every other individual • Because they balance pros and cons of crime they have a rational self-interest • That means each individual is motivated to investigate and find the relevant facts • Let individuals compete in the market place of ideas 2. Best way to get at the truth is have the crown attorney and the defense counsel each do their own investigation (one for each side) • Crowns role is to investigate all the evidence that supports the state’s case • Defense counsels job is to investigate all the evidence that supports the accused case • Have them come before a judge and explain each side of stories as adversaries • The way the criminal trial is organized relates back to how we should deal with issues and prevent • Trail judge lets adversaries fight • Battle it out and present the best case you can for both sides • Judge is impartial arbiter (arbitrates between the sides) therefore not supposed to get involved in the battle • In theory best way to resolve conflict is through a criminal trial, but in practice almost all accused people plead guilty 3. Viva voice evidence • Talk it out stories • Admit relevant evidence • Protect accused liberty • Won’t listen to gossip incase it interferes with the investigation • Gossip not relevant 4. Innocent until proven guilty • Burden of proof is on the crown/state because they have to prove you are guilty before they can punish you 5. Liberty: takes position that it is better to let 9 guilty people go without punishment than it is tom convict one innocent person Inquisitorial system developed in Europe (Civil Code- apriori code rules) 1. Much more interested in order and protecting state authority • As problems arise apply the same rules over and over again • Role of criminal justice system is to find out the facts and establish the truth • State is the authority 2. Get individuals to tell them what happened in order to apply the rules • Trial judge is the investigator: tells police and prosecutor what to do • Judge is mostly looking for documentary evidence • State keeps order therefore the state needs to do the investigation and establish the problem 3. Documentary evidence and admits everything • Takes gossip as information and integrates it into the investigation • All about getting the transgressor • Don’t take into account the fact that they might lose liberty 4. Guilty until proven innocent • Burn of proof is on the individual accused. The accused will be punished unless he can disprove his guilt 5. Order: better to convict 9 innocent people than to let one guilty person go unpunished b. If adversaries, why plea bargain? • Plea Bargain: most guilty pleas are entered because the crown attorney and defense counsel have agreed on a joint submission to the judge in exchange for the accused entering a guilty plea • Variety of bargains: agree on sentence- bargain the punishment; lesser included offense- crown will drop more serious charge for a plea to guilt for the less serious charge; multiple counts- when you have multiple accounts for one type offense you plead guilty to a smaller number and the rest are withdrawn • This is not adversarial this is cooperating • During a plea bargain the opposing sides make a joint submission; agree on the facts and usually the punishment. Inform the judge of this and this is a signal that these sides agree. Most time judge just says fine and approves it. Not only do the opposing sides cooperate the judge becomes the rubber stamp and no longer makes the decision. • Plea bargain is one of the ways you make the criminal justice system efficient • If you overturn a plea bargain may disrupt the decision therefore judges are hesitant to overturn it Crown’s job in the system in the court room is to get through the list of cases as quickly as possible • Benefit in dropping counts and charges, lesser included offense because he gets convictions and gets them fast Defense counsel’s job is to reduce consequences of accused actions • Trial judge gets efficiency • All three parties benefit from plea bargains • In order for the system to work well they have to develop relationships of trust which is opposite of being adversary Criminal Liability 1. Introduction: “Blameworthiness” a. Code defines crime • Purpose of the criminal law is to find out if the person that is accused is to be blamed. • Summarized in a Latin phrase: “Actus non facti reum nisi mens sit rea” which means: the act is not guilty unless the mind is guilty also • First we have to determine if they did something wrong • Don’t punish if they did something wrong because they have to be blameworthy • Only punish if you made the rational decision to act b. Actus Reus (prohibited act) and Mens Rea (guilty mind) Checklist for criminal offence: • Actus Reus- did they do it? • Mans Rea- did they have a guilty mind when committing as well? • (if not one of these the charge is acquitted) o CC S 290 Bigamy: Accused is married to X then goes through form of marriage with Y o Sure they can do the act but we have to determine that the accused knew they were married before they proceeded to marry someone else • Still a common law process c. Flexibility: • Interpreting the wording** o There are always ways to interpret the definitions in the Criminal Code Ex. o R v Droste (1984 SCC). Droste was having an affair and decides he wants to kill his wife and be with his mistress. He takes out a insurance policy on her. Decides to make her death look like an accident. The wife and Droste fight for their lives after he drives into the bridge. They both get out of the car somehow and the kids are still in the car and they ended up dying. o Transferred intent st o A/R- 1 degree murder- kill a human being on purpose planned and deliberate o M/R- did he mean to kill this person- transfer the intent to kill X to the actual killing of someone else and convict him anyway Ex. o R v Meiler (1999 ont CA). Meiler separates from his wife and found out she is with another man and he can’t live with the fact that she is with someone else so he decides he will kill this guy named Roach and himself. Roach is with two buddies Skinjarik and Buik. Meiler walks towards them holding a shot gun that is loaded, ready and he has his finger on the trigger. Skinjarik notices this and jumps on Meiler’s back and during the struggle the gun goes off and kills Buik. o A/R – he didn’t have the intention to kill Buik and he didn’t even aim and fire at Buik it was an accident. It would depend on the definition of causing death. Even though he didn’t mean to kill that person her started a chain of events and he killed someone so he is going to be convicted o M/R – he had the intention to kill someone o You have to have both the Mens Rea and Actus Reus in order to convict • Distinguishing a case on the facts o Rules have been defined previously by higher courts o But if judge really doesn’t want to apply them they can say that the facts make it different • Overturning decision o Court can overturn a prior decision or decision of a lower court 2. Actus Reus a. Three kinds (1) action (2) states of being (3)omission (1) Action: thou shall not*EXAM • Majority of crimes fall under this category • Have to look at the criminal code for the Actus Reus of a crime • Make a checklist • Look for a definition in the code that will form a checklist and have to check everything off before you can continue CC S 265 (1)(a): Actus Reus of assault- a person commits an assault when without the consent of another person he applies force intentionally to that person directly or indirectly. Continued… threatened without consent and put in fear. o Focusing on the verbs in the code: example here is (1) direct or indirect touching. “Applies force”- (2) therefore has to be a touching of the victim under this section. (3) Touching without consent from victim. Ex. o Doctor and buddies sitting around talking. And buddy says doctor is lucky because he gets to see girls vaginas. He tells his buddy to come to work the next day and he’d show him. She finds out that it wasn’t an interne it was a friend and she calls the police. o Doctor: has his consent, he touched her directly o Buddy: no consent, but he didn’t touch her, they did this on purpose but is it a prohibited act? o Can’t convict the buddy. He didn’t touch her, or threaten, or make her scared but he didn’t have consent. o Outraged because the doctor went against privacy o Can’t convict doctor because he didn’t complete whole checklist. Doctor touched her directly but had consent • Assault doesn’t necessarily need to be violent or harmful just had to be touching without consent • Go to code with any Actus Reus • Have to be able to check off all the elements of the events in order to convict • Sometimes code will actually define Actus Reus and make it easy for you to make your checklist • Sometimes it doesn’t have the definition and therefore you have to go to the case law to find the definition • Before 1982- sexual assault was defined as rape. Rape= sexual intercourse with women who wasn’t accused’s wife without her consent • Can only rape women • Can’t rape someone you’re legally married to • Has to be penetration with a penis nothing else CC S 271- sexual assault- everyone who commits sexual assault can and will be punished o No definition given therefore you have to look at the case law that follows the section o Each province defines sexual assault differently then it goes up to SCC and they make the final decision First case to make it to SCC for sexual assault: o R v. Chase (1987 SCC)- guy touches 15 year old girl on arms and breast. Girl slaps him away when he tries to touch her genitals and it’s unsuccessful. He says he knows she wants it. Then he is charged with sexual assault o Trial court convicts him of sexual assault then appeals to the court of appeal and they overturn it and acquit him of sexual assault because he didn’t touch her genitals. Then appealed to SCC where definition needs to be found o Use definition of assault to find definition of sexual assault Check list for sexual assault: (continuous) o Direct or indirect touching o Without victim’s consent o Sexual?: circumstances of sexual nature where victim’s sexual integrity is violated (Chase) • Does not require touching of genitals • Includes: aggressive acts of domination that violates victim’s sexual integrity (KB) • Does not require accused sexual gratification • Other case laws come up and change checklist as the years go by. Different circumstances due to victim’s experience. Ex. R v. KB (1993 SCC) • KB is a father of a three year old boy. His son discovered his body and body parts when he got to this age. To teach him that you can’t grab people’s testicles as soon as you meet them. The father grabs his son’s testicles and hurt him, to show it hurts. Back to checklist: o There was a direct touching o Without the little boys consent o Was it a sexual nature? No but, o It was an aggressive domination which is now included in the sexual assault list Ex. R v. Bernier (1998 SCC) • Bernier takes care of the mentally challenged. Over time gets to know them and starts to joke around with them by grabbing their breasts or testicles. Bernier is then charged with sexual assault. Back to checklist: o Direct touching o Without the victim’s consent o Sexual nature? There was a grabbing of testicles that violates victim’s integrity o Not an act of domination o Does not require hostility from defense (Bernier) (2) States of Being: Being something (status offences) • Not due to something you have done but due to something you are • Looking at the action itself at the moment • Results oriented judicial decisions making: don’t want to acquit due to social change. Looking for reasons that will justify that. CC S 210 (2)(b): Everyone who: • Is found without lawful excuse in a common bawdy (prostitution is frequently practiced) house • Is guilty of an offence punishable on summary conviction Checklist: o Is found (state of being: using to be): just have to be there o Common bawdy house o Without lawful excuse Ex. • Client was out on probation for minor drug offence. Can’t be in hotel California in down town Toronto. Place where a lot of prostitution and drugs are. Guy goes to basement of hotel California and cops do a sweep. Checklist: o He is found o Was at a place that was a common bawdy house o (X) He was there because he purchased a ticket to see a concert (Can’t complete checklist and can’t accuse him) Ex. • West Lodge parks, city parks with huge apartment towers where people live. Parking garage is a place where prostitution commonly occurs. Kids playing hide and seek in the park and they end up in the parking garage. Checklist: o The kids were found in the parking garage o This is a common bawdy house o The ones who do live in the parking lot have a lawful(ish) excuse but the ones that don’t live there don’t haven’t that excuse and they could be accused CC S. 253 (1)(a): care and control of a motor vehicle while impaired. Everyone commits an offence who: • Operates a motor vehicle or vessel • Or operates or assists • Has care or control of a motor vehicle • While the persona ability to operate vehicle is impaired by alcohol or drug Checklist: o Care or control of a motor vehicle (don’t have to be driving it) o D’s ability to operate the mv is impaired by alcohol or drug Ex. Ford v. R (1982 SCC PEI) • Ford is at a party at a friend’s place. Been in and out of the car all evening to get stuff. Thinks he definitely shouldn’t drive home because he’s pretty drunk. Asks a buddy at the party to drive him home and the guy said he would. Then he goes to the car sits in the driver’s seat to warm the car up and waits for his buddy. The cops show up and knock on the window and sees he is too impaired to drive. Then charges him with being in care and control of the motor vehicle. Checklist: o Care and control: act or series of acts involving the use of a mv or a car that may lead to the car being accidently set in motion o Ability to be in care and control of the mv is impaired (He is convicted) Ex. R v. Toews (1985 SCC BC) • Toews is at a buddy’s place. His truck is parked on private property and he isn’t near a road. Had a little too much to drink so he thinks he has to sleep it off. Decides he will sleep in his truck and lies across the front seat. Puts keys in the ignition so he won’t lose them. But when the cops find him the car is off. Checklist: o This is not care and control (He is acquitted) Ex. R v. Pilon (1998) • Pilon blows 202 and he is really drunk. He gets in the driver’s seat and doesn’t want to drive the car or look like he is going to drive the car and he throws the keys under the passenger seat. He lays down across front seat. • Distinguish this case from Toews on the facts. Say it’s different because there is no sleeping bag Checklist: o Too drunk to drive it o But he isn’t in care and control because the keys aren’t near the ignition although, the court says it is care and control because he could get the keys in a drunken state and somehow get the car to move by accident (Convicted) (3) Omissions: can commit a crime by not doing something • General rule in common law, that there is no duty to rescue anyone. If you do not rescue someone in certain circumstances you will not be criminally responsible for the act. Let people make their own choices for criminal law purposes to limit the circumstance when state can take away liberty • There are two exceptions to this rule: o Exception 1. CC S. 217: undertake to do something then omits to do it. Unless prior legal duty to act. • Failed to do something you said you will do Checklist: o Undertake to do something o Not doing something -> danger to life Ex. R v. Brown (1997 Ont CA) • Cops are going to pull a couple over and they have crack in the car. He gets his girlfriend to swallow all the crack then he would take her to the hospital. But he doesn’t take her because he thinks that the cops will follow him there and know it was him. Then she has to walk to the hospital but she doesn’t make it, she dies on the way. Checklist: o Not taking her to the hospital caused her to die o Undertaking has to be a mere expression of words. Has to be a commitment the victim can rely on. Therefore there is no undertaking in this situation (Acquitted) o Exception 2. Specific duties created in CCC. • CC S. 129 (b): people are under a duty to assist a police officer when there is a disturbance of peace or the officer is making an arrest once that person has been given reasonable notice that person is required to assist. • CC S. 263 : safeguard hole in ice or group • CC S. 215: providing necessaries of life within certain relationships (Ex. Parents duty to provide child under 16 years of age with necessaries of life, spouse  spouse, in relationship when you are dependent and unable to care for yourself) 3. When the Actus Reus includes causation • Actus Reus defined in such a way that it includes causation. Only if code says you have to cause something. Causation is only an issue if the Actus Reus includes causation. • CC S. 222: homicide (murder, manslaughter, infanticide): commits homicide when directly or indirectly by any means he causes a death of a human being. Checklist: o (In) directly o Does anything o Cause death o Of a human being • Definition of Causation: • Causal chain of events that links accused’s action to prohibited consequences • Thin skulled victim rule: aggressors have to take their victims as they find them. Can’t argue that someone’s physical weakness of a victim breaks the chain of causation • Contributing cause: were the accused actions a contributing cause outside the de minimus range. More than a minimal impact on the events leading to the death. Made more than a negligible contribution. A. Causal chain (Jordan, Smith) • Causal chain of events that links the accused action to prohibited consequences • Unless there is an intervening cause • Intervening cause has to be so overwhelming to make original would merely part of the history Ex. • Jordan (1956) Court of Criminal Appeal. Jordan and Beaumont having a fight outside a café. Jordan has a knife and he stabs Beaumont in the abdomen and penetrates the intestine. Cops come and arrest Jordan and take Beaumont to the hospital where they give him antibiotics. Beaumont is allergic to these antibiotics and has a severe reaction. Next day has a new doctor and he puts him back on the antibiotics and Beaumont reacts to the antibiotics really badly and so the new doctor gives him more IV fluids and Beaumont’s body shuts down and he dies on the bed. Did Jordan cause this death? Chain: o J and B fight  J stabs B  B in hospital  Dr 1 gives B antibiotics  Reaction  Dr. 2 gives him more antibiotics  Dr. 2 fills B of fluids  B lungs fill up  B dies Checklist: o (In) directly o Doing anything o Cause death o Human being o Cause of B’s death was due to Dr. 2. Jordan did not cause B’s death and is acquitted • Smith (1959) court martial appeal court (UK). Smith is in a British regiment. One day two regiments decide to get into a big fight. During the fight, Smith stabs Cree in the back which has gone through and punctured his lung. They pick up Cree to bring him to the first aid station and they drop him twice on the way which makes the blood flow faster into his lung. Doctor sees the wound on Cree’s back and says that doesn’t look so bad but the Doctor doesn’t realize that the lung has been punctured. Doctor give Cree and IV transfusion of saline which then makes his lung worse and two hours later he drowns and dies. Chain: o Fight  S stabs C with bayonet  punctures C’s lung  guys carry C to medic drop C once (intervene)  drop C twice (intervene)  no doctor on site  medic  misdiagnoses (intervene)  time passes C’s lungs start to fill up and he has problems breathing  medic gives IV(intervene)  two hours later C dies Checklist: o (In) directly o Does anything o Cause death o Human being o Did John cause the death or is there a intervening cause of death. B. Thin skulled victim (Smithers) • R v. Smithers (1978) SCC. Smithers is playing midget hockey. He is on the ice and another guy Cobby skates by and trash talks him with a racial insult. They end up having a hockey fight. Both get thrown out of the game and go to dressing rooms. Cobby is worried Smithers is going to kill him so he tries to rush away. Smithers catches up with Cobby in parking lot. Smithers punches Cobby in the head and kicks him the stomach. Cobby then vomits and his epiglottis malfunctions and all the vomit goes into his lung. Aspirates, chokes and dies. Smithers convicted of manslaughter. Chain o Racial slur  fight  kicked out of game  dressed  C at car in parking lot  S catches him  punches in head  kicks stomach  C vomits  epiglottis malfunctions (intervene)  aspirates  chokes  dies. Checklist: o (In) directly (yes) o Do anything(yes) o Caused death o Human being(yes) C. Contributing cause outside de minimus range (greater than minimal impact events leading to victim’s death) (Smithers, Nette, Maybin and Maybin) • Ex. R v. Nette (2001) SCC. Nette breaks into a 95 year old ladies house to steal stuff. Says he isn’t going to hurt her, ties her up and puts her on the bed. Takes clothing and wraps it around her head and neck so she can’t call the police just before he leaves. Hours and hours and hours pass. 48 hours before anyone checks on her. She had died from asphyxiation. Chain: o B + E  95 yr old women  ties her up  robs  wraps head and neck in clothing  48 hours later  dies of asphyxiation. • With murder in general we want someone to that on purpose • Someone who makes the decision to kill someone for their own benefit • Second degree murder is they planned it and it was on purpose Two kinds of murder: • First degree murder: o You do it on purpose but is planed and deliberate (S 231 (5)) o Punishment is life imprisonment o No chances to get out at least 25 years in jail • Second degree murder o Life imprisonment o Parole in 10 years • Man Slaughter o Max life imprisonment • “More than a negligible contribution” • “Not significant”  significant contributing cause • Second degree man slaughter: other offence negative cause • First degree murder: significant contributing cause PLUS accused actions have to be essential, substantial and integral part of killing the victim • “But for” and accused’s actions include other causes that are reasonably foreseeable flowing from accused’s actions Ex. **ON EXAM** Harbottle (1993 SCC). Harbottle and his buddy kidnap and sexually assault a 16 year old girl. She has been severely injured and can’t get away and they decide they need to kill her but they want to do it nicely. Harbottle’s buddy strangles her and Harbottle holds her legs to prevent her from struggling. His buddy was convicted on first degree murder. Not only do we have to find out if what Harbottle did caused her death but was it an essential, substantial and integral part of the killng? Chain: H and D2 kidnap victim  sexually assault V  conversation and decision  D2 strangle  Victim struggles  H grabs V’s feet  D2 successfully strangles  V dies A/R Checklist • (In) direct - yes • Causes death- yes • To a human being- yes Causation Checklist: • Is there a causal chain that links the accused’s actions to the death of the victim or was there something that intervene the chain? Harbottle doesn’t do anything until he sits on her feet. • Not thin skulled victim (OMIT) • Was holding her feet and significant contributing cause to the victim’s death? Can argue both sides. He would have successfully strangled her without H sitting on her feet it would have just taken longer. Also it was foreseeable that he would have successfully strangled her if H sat on her feet. Different persp
More Less

Related notes for CRM2300

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.