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Criminal Winter Lectures.docx

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CRIM 230
Tony Wilson

Criminal Lectures010311 Concept of Fault in Criminal Law o used to be just mens reaevil intention o until recently if you wanted to convict someone of a crime there were two things written in stone1 Crown had to prove guilty2 Could only be convicted of a crime if you had subjective faultnormally dont get a written confessionnormally have competing circumstantial evidence and theoriesin order to convict someone of a criminal offence where liberty of subject was at state the crown would have to prove BARD all the actus reus components AND subjective faultthe accused intended this consequenceCrown had to prove subjective fault BARDTwo distinct regimes of law o Criminal and Civil o If you fail to act as a reasonable personcivil liabilitytort actionwouldnt be convicted of a criminal offence though o there are instances where you could still be found guilty of one and not the other o for Criminal must be proved BARD that guilty o in terms of fault for crime it was subjectiveyou had intended to cause the death o in CIVIL you just had to prove the person wasnt acting as a reasonable person o issue of how much you had to prove and whether subjective or objective reasoningin criminal law now there is subjective and objective faultmove from subjective fault traditional to more objective evaluation has occurred simultaneously with the Chartermost of the discussion of Charter with criminal law talks about the handicaps on the police being able to do their jobindividuals had been given Charter weapons to ensure the police are obligated to ensure fundamental rights to the accusedCharter has imposed at least in theory considerable obligations on police when performing arrest of detention functionsthe Courts have expanded the powers of the police and made it easier for them to get a conviction when in CourtArrest powers of police o in CC can only arrest if they have reasonable grounds that the person has committed an offence o Courts have come up with common law arrest power where they can arrest if they simply have a suspicion that something was done wrong o now going through parliament to pass legislation to allow police to arrest whenever whoever they want for no reasonCourts have said that the Charter does not specifically say the police can only arrest you on reasonable and probable groundsUntil early 1980s Crown needed to prove subjective fault BARD o the SCC said that not every criminal offence must have subjective fault BARD o now the starting point has changed o used to be if someone charged Crown needed tor prove subjective fault BARD o now either the Crown or the accused will have to establish the existence of or absence of objective faultand only on a balance of probabilities o since the early 1980s the two fundamental principles of criminal law1 Crown prove2 Fault must be established on subjective basisThese are gone nownow most cases the accused has to prove innocence and fault is not based on subjective faultsince 1980s there has been a fundamental shift in crim procedures and laws o massive increase in powers of the police and adjustments of substantive law o easier to secure a conviction o shocking bc ppl thought more limitations on police would resultThere are number of subjective and objective fault elements old stuff3 SUBJECTIVE FAULT FORMS o 1 Traditional best known subjective fault form is intentionbest example is murderneed to show intention to commit murder and kill the personintention proof BARD that accused saw consequences of their action and substantially certain it would occurawareness advertencesthe person foresaw this occurring and wanted it to occur o 2 RecklessnessCriminal Negligencehistorically you could only convict someone of criminal negligence causing death if you could show they were recklessOLD LAWRecklessness someone subjectively foresaw the consequences didnt want them to occur or was substantially certain they would occur but would take an unreasonable riskcombination of subjective foresight of consequence combined with unreasonable assumption of a risk objectiveMay not have intended but you could foresee the consequence and assume an unreasonable riskhistoricallyRecklessness was required for manslaughterManslaughtertook a foreseeable risk involves subjective faultsubjective foresight of circumstances and desire for them to occurwe say recklessness is subjective bc subjective foresight of consequences combined with objective assumption of risk o 3 Wilful Blindnesssubjective faultIt is the situation where for example you guys speakers for 100 that are worth 1000 and they turn out to be stolenthe court will say you were wilfully blindthe accused could not possibly NOT have knowneven though there was an issue as to whether or not they were stolen or what youd have to do to exonerate yourselfit is subjectiveso it is based on YOU the accusedyou had your suspicions aroused and did not look further to find the truth o There are some other ones that seem to be a variation of intentionKnowledge or Knowinglydid the accused knowdid the accused subjectively have knowledgeKey is for that provincial offence of careless driving the fault element is objectivedid you act as a reasonable personWhen youve injured someone is when they say dangerous drivingdeliberately suggests that the person is measuring the consequencedifference between intentional and voluntary act o intentional you weigh consequencesWillfullyPurposivelyIf you see any of these words Crown has to provethey are all subjective fault formsObjective Fault Forms o objective fault just need to prove accused did not act as a reasonable person o simple negligence is the fault form available for most provincial offences
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