WDW225.Class3.2012.docx

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Department
Woodsworth College Courses
Course
WDW101Y1
Professor
Breese Davies
Semester
Fall

Description
Essential Elements of the Criminal Act For declaring legislation unconstitutional there is a 2 steps process. 1. The 2 steps are different then any other section of the code. The first step is there any violation or infringement at all does a legislation that we are talking about as a crime does it some how infringe or violate one of the rights that you have under the charter. For section 7 of the charter for answering the same question it has a 2 steps does it infringe you right to life liberty and security of the person and we should all know by now that every criminal law violates or infringes section 7 of the charter of right to liberty because of the potential of jail term. That is not the end of the equation for section 7 that is not the base of analysis for section in order to be in section 7 violation the infringement of you liberty has to happen in a way that is inconsistent with the principles of the fundamental justice. R. v. Butler, council challenges the constitutionality of the pornography provision under the charter provision. Butler was charged under s163 of the CC which makes it an offense to make and distribute absence material, the word pornography are not in the criminal code what is illegal to have make some thing that is pornography, absence, is it constitutional. Challenges under s.163. 1. is it vague, 2. does it violate s.2b of the charter of rights, right to freedom of expression. s.163. Obviously restricts your expressive ability you can not make, art videos magazines that are obscene that restricts your freedom of your expression, but the question was is is also vague the court said let me take a step back before we ask whether some thing is overly broad or whether some thing is problematic, we have to define the provision its perks we have to define the meaning of provision before deciding whether a provision is unconstitutional or not. So if you look at s.163 (8) of the CC it says that for some thing to be obscene it has to be a publication (it is very broadly defined can be print or any thing) that is published in a broader sense) the dominant characteristic of which is the undue exploitation of sex or sex and any one or more of the following subject mainly crime horror, cruelty and violence. It is not any thing to do with sex but is broadly define that is undue exploitation or in the content of expression is sex coupled with crime, horror, cruelty and violence. There are 2 judgments in Heywood there is a majority judgment and there is the dissenting judgment so there are two judgment the dissenting judgment which is they can disagree and when they disagree and when they disagree it is the majority that counts so nine judges of the SCC if you get on your side you win, if it happen 4 you lose many time the challenge is. The conclusion of the consenting minority judges that is not the law. There is sitting 7 judges at them moment at Supreme Court of Canada because there is vacancy 2 but they can also sit 5. Odd number count the majority they win the majority. For any other section you go to section except 2 you go to the Oakes test any section that violates the charter you go back. s. 163 makes it an offence to posses, make, print, distribute. Obscene material. So the issue that then comes is what is obscene what does obscene mean for the purpose of criminal law so this is the finding of s.163 (8) and it says among other things that some thing will be obscene if a dominant a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence so for some thing to be obscene it must involve the undue exploitation of sex or it must involve sex coupled with formal blatant now the interesting thing or one of the most important thing that comes out of the Butler case is the supreme court of Canada says okay the first thing you have to decide is how do we define undue exploitation the court when faced with the constitutional challenge has to interpret the legislation first so they the one to put as much meaning into the legislation as they think is required before they turn to is this a violating that can be justified as you got it law put the frame around it the judges has to do their job to interpreting the legislation first before you can analyze whether is constitutional or unconstitutional so what does undue exploitation mean now this is where we get the idea of community standard of tolerance. So we are going to decide what constitute undo exploitation on the basis of what is called the community standard of tolerance. These sorts of concept so the community standard, the objective test, of what a reasonable person would think they are going to come back over and over again in criminal law. Throughout this course we going to constantly with these ideas where major crime criminal law criminality and measures of criminal responsibilities on the basis of what a reasonable person would think about and that obviously is valuating it a huge numbers of problems that who the individual person is what experiences do they have where did they grow what culture are they from and we will talk about these issues as we go along but for the purpose of pornography: community standard of tolerance now this is not about taste it is not about whether or not the community thinks some thing with good taste or bad taste that is not what the community standard of tolerance is about and is not even about your own personal tolerance so it is not whether I personally as a member of the community could tolerate watching or looking at or reading this piece of pornography obscene material whatever it is it is not about personal tolerance or personal taste it is about what would we as a community allowed other people to see so what is it that we are prepared to let other people see if they want knowing that we can choose not to look at if we want so that is the test. And the other thing is the important thing is why do we have this section that is the other thing to think about what constitute undue exploitation from just exploitation or some thing that we make us in bad taste and what make some thing undue or unacceptable is another term is the idea that looking at it viewing it reading it will cause harm so harm the threshold for what we call it is that not caused harm by having people expose it. There is a debate about pornography's harm but what the supreme court of Canada said is the harm that we are going to be worried about is whether or not the exposure to this sort of material will predispose someone to certain sorts of conduct we want to avoid. That is what we mean by harm in this context. So having decided what undue exploitation mean so undue exploitation some thing that offend the community standard of tolerance that would cause harm to those people who view it. Then they went on to say okay lets thing about all pornography that exist in the world and really you can divide them in 3 broad categories. 1. Explicit sex coupled with violence (now if you go back through slides that is it always altered by the definition of obscene– sex that have almost always obscene. 2 Explicit sex without violence, (so no violence is involved) but which degrading/dehumanizing (so no violence we are not in category that is define in the section as a theme we are saying we are now that define as obscene we are now saying is this constitution undue exploitation does this offend the community standard of tolerance what the court say is it will be obscene it will offend the community standard of tolerance if the harm form exposure is substantial so it has to be significantly degrading significantly dehumanizing and it has to be an inclusion that is just attribute on that it has to be from looking at watching view it – obscene if risk of harm from exposure is substantial so there has to be substantial harm if there is no violence involved in the imagery. So middle category will be obscene in none of those cases where exposure to it presents a significant risk. 3. Explicit sex without violence, not degrading/dehumanizing – tolerated unless children are involved. Children are a whole separate category at unless children are involved this will not constitute obscenity. It is not illegal to posses distribute or manufacture this sort of pornography unless children are involved so we have got the 3 categories a)is always obscene and always illegal, b) is obscene if the risk of its exposure is significant and c) is never obscene unless it involves children. So having defined what obscenity is the SCC says now that we have the meaning of law now we can turn to the analysis of the charter does that section with those limits that we just put on it does that offend the charter and the court says absolutely it violates section 2.b. So pornography producing, distributing violates section 2 b of the charter. 2b of the charter is freedom of expression you have the right to express your self free. What the SCC said is that these provisions were strict your right to freedom of expression it is telling you you are not allowed to make read watch expressive material. 2b of the charter mean though is broadly defined the content of the expression is not relevant in terms of whether or not your rights are engaged. So we have a very broad definition of what is expressive material it includes every thing short of an act of violent and so if it is not a physical act of violence if it depictions act of violent are captured by section 2b of the charter and depiction of act to even if there were no children or expressive material that are protected by section 2b of the charter but does not mean end of the analysis. This is after the analysis does legislation infringe the charter of right and the court says yes but not surprisingly the SCC went now on just like all of you were shocked of that idea that this is some how protected even child pornography is protected they went on and said that is protected and saved under section 1 of the charter. Because section 1 of the charter says that rights of the charter are only protected in so far as they are in a legitimate and democratic society government can enact legislation that violate the charter of rights if they are demonstrably justifiable in free and democratic society they are not absolute right the government is allowed to enact legislation that infringe your right and they are allowed to enact crimes that preclude you from processioning and distributing of obscene material because is there oppressing in substantial objective. Obviously this is not a difficult argument to make that protecting against the harm that already is identified there already has to be some harm again for before you did not even get in to the definition of the obscenity so protecting against the harm is oppressing substantial objective the court also said regulation of morality is also oppressing in substantial objective they raised two of them there can be always more than one objective to a piece of legislation so crimes against pornography or obscene material both protect against the harm may cause and they provide for a boundary for what we think as acceptable or unacceptable and so on in terms of what ppl have been told. Rational connection there is a rational connection between avoiding the harm caused by pornography and stopping people from making it stopping people from distributing it and stopping people from possessing it. That is a clear connection minimum impairment that is step 3 of the Oakes test the court was very clear to say that we do not want to restrict sexual expression that is what this is about and if there was a ban on any of lots of material that involve sex that would not be minimally impairment because sexual expression is important to who we are as human beings in our own identity. So that is not what it is focused on healthy human expression sexuality is not captured by this thought it only captures that sort of expression which causes harm so because it is narrowly focused what is obscene and the definition of obscenity it is narrow then it is minimal impairment. So it passes the minimal impairment test. So it has got the pressing of substantial objective, the means chosen for addressing the harm is rationally connected, it is minimally impairing and again remember the proportionality is sort of okay how much of infringes of the right and how much benefit does this legislation do or again because the prohibition is so narrow it is a narrow area of material that you are not allowed to make or distribute or posses the infringement of your freedom of your expression is quite limited. So it is not sort of some thing that is entitled to your personal identity is not some thing important to what the whole process it is really marginal part of your freedom of expression according to the court. And it is a minimal intrusion to that and the benefit of preventing the harm that we think is caused by pornography is greater then the harm to your individual right therefore it need the proportionality test so it is save that why pornography is illegal in Canada. R. v. C.M. (1995, Ont. C.A.) Challenged s. 159 of the Criminal Code which made it an offence for people under the age of 18 to consent to anal intercourse Age of consent for vaginal intercourse at the time was 14 years old ISSUE: does this violate s. 15 equality rights? Regulating morality can go with other things remember the 5 things that criminal law that are legitimate 1. Morality so it could be health safety this one is protected against harm so morality alone they do not say as a sufficient pressing of substantial objective but if it is coupled with some thing else would it be other than legitimate criminal law purposes then it is pressing of substantial objective. So it is not that is has to always be crime it has to be some thing else as well as morality. Section 15 is the equality rights Challenged s. 159 of the Criminal Code which made it an offence for people under the age of 18 to consent to anal intercourse. So if you are 18 you can consent to having anal intercourse if you are less then 18 and married you could not. So even in theory if you consented it was still a crime. The other important thing in this decision is that the age of consent at that time for sexual intercourse was 14 so any body that was 14 could consent to that part of intercourse you could not consent until you were 18 or until you got married. The argument was that does it violate s15 of the charter and section 15 of the the charter is equality section and the court says yes it does violate s15 of the charter because it discriminates on the bases of sexual orientation now sexual orientation is not one the enumerated sexual behavior is not in the list when you read the charter. but even if it is not enumerated or set out in the list it can be an analogies ground of discrimination so OCA found that sexual orientation was an analogies ground so even though it was not in the list it still put a ground on which government can not discriminate against you. And so they found that this law which allows for sexual contact consent to some sexual contact at 14 but not consenting the anal intercourse until you are 18 discriminate against young gay man and what they said was that is arbitrary to prevent gay teens from having sex before they are 18 while heterosexual teens it have this act when they are 14 and so what the court said that violate s15 of the charter and they struck down the provision of the code they went on s1 the government try to arught that it could be saved under s1. the court said is there pressing in substatial objective so the court outlined a number of potential pressing of the the substantial objective one of which was trying to influence sexual orientation which the crown wiped it because it was not valid but one that they did promote protecting young people that increase their risk of physical or psychological harm not psychological harm but I am okay to go with physical harm that it is more likely to lead to certain transmitting disease or whatever. They were allowed to enact legislation trying to protect young people against physical harm the court said sure that is the pressing of substantial objective for the purpose of s.1 Oakes test but they said there is no rational connection. Again rational connection is is there connection between what they want to do protecting young people from harm and the way that they choose to do it so is there a connection to protecting young people and putting them in different roles for having anal sex. That is basically the question and the court said no there is no rational connection between the 2 and in fact interestingly that they said that there is no cases that criminalizing some thing is going to stop teenagers form doing some thing you do not want them to do it. But they also said if you criminalize this behavior people run the risk of being imprisoned for this you actually increase the chances that they would not get the education that they need to understand the risks. So if you criminal someone for doing some thing as a young person and what you really want to getiing them for the purpose of education you are defeating them from what you want them to do. So what they said that there is no rational connection, no reason to incriminate ppl for this behaviour what you really need to do educate them. So it did not pass the Oakes test remember in order to pass the Oak test you have to pass each section has to be in pressing of subtantial object and it has to be rational connected and no impairment and no minimal impairment so if it fails in any stage of these test the legislation is struck down. Lets talk about safe injections so we now know pornography is legal and lets talk about insight is the same insight projection is BC. It is where drug users can go to safely inject themselves and the purpose of it this is a provincial initiative under the health care intervene in BC and is staffed by nurses and doctors and the purpose was to reduce overdoses and to prevent of disease because where it is located in lower insight of Vancouver they were having a huge problem with drug over doses and the transmission of diseases. So they decided to set up the sit and for numbers of years the federal government was giving them an exemption of the NCDSa because it is illegal to posses drug and traffic the drugs that people were shooting in site so they got an exemption so what the federal government said you are client and your staff will be exempted form prosecution under the substance and drug act and if they shoot up in your facility. Not surprisingly change of government change of attitude towards the sorts of prevent the government today a numbers of year ago said we are no longer going to give you an exemption. We are no longer going to promise you that your staff and your clients will not be prosecuted and we will not guarantee you that we will grain your facility so obviously insight thought well we have two choices either we can challenge the refusal to give us the exemption or we shut it down we are not going to it is not a save injection site if out staff and our clients are going to get busted so the ultimate question was “ does the refusal of the minister to give an exemption violate s.7 of the charter. So there was an issue in the division of power and the argument was that the CDSA [federal criminal legislation] does not apply and can not apply to provincial health facilities because health is within [exclusive jurisdiction of the province under s. 92(7)] where the boundary is between the s.91 power and s.92 power. In this case the SCC rejected the power argument the SCC said no the CDSA as a federal piece of legislation and the federal prohibitions that are included in the CDSA are legitimate and do apply to provincial health care facilities. So CDSA is valid and it cannot be denied. So the division of power argument did not work. Now on to the s.7 of the charter does refusal to grant the exemption violate s.7 of the charter does the law violate s.7 of the charter does it infringe a right to life liberty or security of the person so interestingly a the court say that without any assumption obviously stuff and client are subject to prosecution for possessing or trafficking. The clients are obviously going to subject to possession prosecution because they are the one that are shooting up the means of their gravity that means that they come with someone else and they ship particular drugs the stuff may come in contact with it they may be in possession they technically can trafficked and that will be unusual and right a way set up so without any exemption there is a risk of prosecution that increases the risk of imprisonment that is an infringement of you right to liberty the court went up on further though and said to deny that help services that are being provided in the inside clinic is a violation of the clients right to security of the person. Remember we talked about security of person as they impose psychological harm. Denying a drug addict which they though an illness the treatment that they need and charted at Insite is violation or deprivation of the right of the security of the person so section 7 it triggered but because there is an exemption available in the legislation the legislation itself is constitutional. So thy did not strike down the CDSA It has the CDSA that has this exemption mechanism built into it so ppl can meet exemption of prosecution and risqué the health benefits that they need for. So the issue turned on then whether or not the minister had to give them an exemption What the court says any minister of the government in making a decision whether grant an exemption or not or any decision they make under a piece of legislation have to comply with the Charter of rights and have to respect Charter of rights so what they said was the Minister’s decision or an application for an exemption that is Insite goes to the minister to process to have an exemption the minister then has a decision to make should I grant an exemption or not that decision has to respect charter of rights and it has to be made in a manner that is consistent the principles of fundamental justice because to deny it it triggers s.7. One of fundamentals of criminal justice is that a decision can not be arbitrary. So the minister cannot make an arbitrary decision to deny any exemption. So the question well then remain is well was the decision to withhold the exemption arbitrary in this case and the SCC says yes it was an arbitrary decision. Because it was inconsistent with purpose of this clinic so the purpose of clinic is to reduce drug use and to control drug use and by denying the exemption they were in fact arguably based on the scientific social science dealt before them there was widely being increasing drug use and certainly increasing in the harm associated with drug use. Second one was that there was No negative impact to granting them an exemption what the court said was there was a lot of research on them what the effects of the insite were so reducing drug overdoses reducing the spread of disease it did not increase crime in the area it generally reduce the amount of drug abuse by the client over time so there was no negative impact from granting the exemption which you might concern about and there is a positive impact from granting the exemption that was consistent of the act so it was arbitrary to do any thing but give an exemption. So at the end of the day the court ordered the minister to give them an exemption and said basically he can not change his mind unless evident changes. So he has to continue his they did not say permanent exemption they were quite clear about that they say for the rest of time you must give these people an exemption but what they did say is unless the evident before you changes about the risks of Insite for or the benefits from it or any of the factor that make this arbitrary decision you have to keep giving them an exemption. That is a very unusual decision of the SCC it is quite uncommon that SCC order any minister of government to do any thing in particular normally they do not strike a decision down they will leave it to make a decision. But they did not strike it down as arbitrary. And there is really only two option there is do not give an exemption or give an exemption and why is arbitrary they order them to give them exemption. A lot of it has to do with politics. We now talked about how it is things become crime in Canada what the limits are to the ability of the government to enact crime and we are the down views of wine what is legitimate criminal law and what is not legitimate criminal law. You should be able to analyze any piece of legislation for example if I give you on the exam to propose a new law I you should be able to analyze whether or not legitimate criminal law and whether or not it infringes the charter. So criminal law every crime in Canada has two elements to it. Every single crime has two elements to it. There is the Physical element or actus reus Every crime has a physical element to it. It is conduct of the physical act or the failure to do some thing that you are required to do that constitute the act of the crime it could be one or more physical acts certain crimes requires more than one physical act Acts Reus. 2. Mental element or mens rea is state of mind. The mental element of the offend will be mens rea is the same mind that must have accompanied the act it is not just that you physically commit the act of a crime you have to also have the request state of mind in order to be guilty because you can do things by accident without intending to do it and it is not a crime. If I walk out here if someone has exactly the same bag as me and I pick up the wrong one and I leave I have not stolen his or her bag. I have not committed a crime because I did not intend to deprive them from their belonging. It was a mistake but if I know there is two bags and I know that the other bag has a fancy new iPod and iPhone in it and I want those thing in the bag and I take it intentionally because to those valuable things that I wanted that exactly the same act turns it to a crime. So often what changes an accident into a crime is the state of mind of the person at the time that they commit the offence there are different levels of Mens Rea different ways that we define the mental elements of an offence depending on different crimes so that means maybe you have to show someone did something intentionally or with a certain degree of intent it may be that you have to prove that you did not have certain level of knowledge about certain facts it may be that you have to demonstrate a bit foresight of a consequence or you may have to do something knowing that it is likely to call some thing else. I may have to be shown as reckless those are all different states of mind which we are going to talk about in couples of weeks when we get to mens rea. So for every crime there has to be Crime = Act (actus reus)+ Fault (mens rea). You cannot be found guilty unless the crown proves beyond the reasonable doubt bot the actus reas and mens rea all elements of the actus reas and all elements of the mens rea have to be proven beyond the reasonable doubt. Actus Reus can be divided down further to more then just the physical acts. So this is the way to think of it the actus reus is an act of commission I commit a particular act or in some limited circumstances I omit to do some thing that I have a duty to do so I would commit an act or I omit to do that I do it voluntary which means that the very low trifle which is not like I am saying I am willing to do that voluntarily it is not like saying I voluntary to do that I may I can have choice to do it that is not voluntary means in this context it means that the product of an operating mind It means I am not in a comma I am not psychotic I am not acting involuntarily so it is very low pressure which we will talk about next week. So I have an act or omission that is voluntarily fed in that causes any defined consequence. Some crimes
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