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Criminal Law- Fall Lectures.docx

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CRIM 230
Tony Wilson

Criminal Law 091510Various sources of Criminal Law Primary Sources Common Law Statutes the Charter o Common LawAlso includes judicial interpretation of statute and precedentJudicial precedenceUntil 1955 Canadian judges had the power to create offences at common lawCould determine comes conduct was reprehensible attack on the state and should result as a criminal offence and sentence themJudges had the power to do what only parliament can doUntil 1955 the English Common Law which we had adopted in Canada a lot of the convictions in Canada were based on adopted English statutesR v Sedley CaseExample of judgemade lawAnd old English CaseGuys running around naked peeing in beer bottle throwing it offFined and jailed for a weekSedley was NOT charged on the basis of violation of a criminal code or statuteThe Judge determined not parliament or anything else that this conduct was criminal and then determined that he was guilty of a crime and imposed sentenceAn example of a common law offencejudge decides what is and what is not criminalPage 5Our Criminal CodeS 9 a Canadians can no longer be convicted of common law offences judges cannot create offencesIn order to be convicted of a crime there must be legislation would be federal o Has to be named by parliamentWill only be a crime if the legislative body has identified a specific actSexual assault is a crime but it is the judges who determine what does and does not constitute a sexual assaultThere remains a judicial interpretive performance but they do not create itS 8 3 pg 4Provides that if you are charged with an offence and you wish to avail yourself of a defence to that charge you can use statuary enacted defences and defences at common lawThese are statutory enacted defences available to the accusedo S 34 of Criminal CodeSelf defence o S 16 of criminal codeInsanityDefences at common law o You can use common law defences o As our knowledge understanding evolve and situations arise it allows us to build defences for the accused and create new defences which did not exist previously o ie Defence of Entrapment newly made through common lawSomebody steals a bike o The accused is 20years old has a mental illness and somewhat different perceptions of what is occurring o Someone sees him take the bike its reported to the police o Police come he claims it is his bike o He says he misplaced his and they look the same evidence proves that o The accused did take the bike in order for him to be charged there must be a statutory position that the Crown argues is applicableS 334 4 of criminal codeOffence for theft under 5000 o Subjective fault form of intentionThe crown will have to show that this person intentionally took the property from someone elseDefence would argue mistake of factThis is available bc it is available at common law o Could also argue a statutory defence on a theft chargeS 16 insanity chargeFor more serious chargesCharge of Sexual Assault o Can only be charged bc we have an offence in our criminal code called sexual assault parliament has decided it o Standard defence in a circumstance like this when the accused is charged with sexual assault is thatThe complainant gave consentIf not I honestly believed the complainant did give consentWhat is a sexual assaultJudges have to define the parametersBefore 1955Canadian Judges could create offences o Page 2 Frey v Fedoura 1950 decisionTalks about whether or not there is an offence to being a peeping tomThis is not a criminal decision this is a civil caseOne citizen is suing anotherThere was no power to detain bc there was no offenceThe central issue was whether or not a crime was committedBc you have no power to detain me Im suing you for false arrestCourt noted that at that time there was no offence to being a peeping Tom not a successful chargeCreated the possibility of a TortOn page 5in 2005 being a peeping Tom is an offenceS 177 of Criminal Code o Creates an offence for trespassing at nightWithout lawful excuse o Possibility of a charge exists bc there is legislature o There are court decisions that argue that loiter and prowl are not the same o Loiter is to wander aimlessly o Prowl implies an evil intentionS 2 of the Criminal Code defines night o Only night from 9pm until 6amGot a situation where you can only charge the guy bc of legislative prohibition how you charge is based on judge common law but you have to go back to criminal code legislation to determine nightPage 6 of the casebook o Henry CasePage 10 Statute o Statutory interpretation o R v Clark CaseWhat is a public place and how do we interpret S 171 a prohibits indecent acts in a public placeS 171 b prohibits indecent acts anywhere with intent to offendS 173 1a difference between public place and private place that may have a public viewEvent arguably didnt occur in a public placeS 213 in the Criminal CodeDeals with soliciting for purposes of prostitution in a public placeS 213 2 defines public place any place in which the public has access in right or invitation and any motor vehicle in a public place with public viewLegislation can change your car is not always a public place
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