LS 102 Second half of Criminal Law.docx

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University of Waterloo
Legal Studies
LS 202
Frances Chapman

Parties and Inchoate Offences Tuesday, February 12, 2013 9:50 AM 1. Parties to an Offence o Not just individuals  Corporate organizations o "principal" who committed the offence the "aider" who enabled someone else to commit the criminal act, the "abettor" who encouraged another person to commit a crime, and a "counsellor" o PRINCIPAL: someone who actually committed the offence and has the mens rea and actus reus required for the particular crime. There may be more than one principal o AIDER: enabling (or omitting to do something) that allows someone else to commit a crime o ABETTOR: encouraging another to commit a crime o COUNSELLOR: an individual who, through acts or words, induces a person to commit the offences they desire o 21. (1) Everyone is a party to an offence who  Actually commits it;  Does or omits to do anything for the purpose of aiding any person to commit it; or  Abets any person in committing it o Assists the principal is EQUALLY culpable for the same offence 2. Aiding and Abetting o Aiding is helping WITHOUT encouragement or instigation, and abetting means promoting or instigating a crime to be committed  Communication that would encourage and some that would encourage without actually helping  Supplies a weapon, acts a lookout or derives the "getaway" car  When??  Aid or abet the assistance must have been rendered before or during the course of the offence  Helping after the offence makes one an accessory after the fact o R.v Kulbacki o R.v. Laurencelle 3. Counselling o Procure, solicit or incite o Counselled may not actually commit an offence but simply help another party o Must actually be encouraged o Liable for every offence that the person commits as long as the counsellor knew or ought to have known that other offences could result from their counselling o Less participation than aiding and abetting o R. v. Hamilton (2005)  No crime?? 4. Accessories After the Fact o Very serious offence and holds a maximum of 14 years of imprisonment o Crime must have been committed o Knowledge r wilful blindness that the party they are helping has committed a criminal offence o Historically - husband and wife could not be an accessory to a crime because they were seen as "one person in law, and are presumed to have but one will" o Repealed in 2000 o Facebook??  Maxi Sopos  "Life is very simple really!!! But some of us humans make a mess of it... Remember am just here to have fun partteeeeee" 5. Inchoate Offences o Incomplete or preventative; crimes that are incomplete  Offences serve as a preventative measure to stop a crime from occurring o "inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves" 6. Attempts o Intent to commit an offence o Mens Rea  Mens rea very important in attempts  Need proof of "an intent to commit an offence"  In many cases the attempt requires a degree of mens rea that is greater that would be required for the completed offence  Murder - can be "reckless" as to whether death ensues or not 229  Ancio in 1984 the SCC  Rationale o Actus Reus  Historically - look of the conduct was "too remote" from the crime to be convicted  Actus Reus of an attempt is difficult to prove  Criminal Code = "mere preparation to commit an offence and therefore too remote to constitute an attempt to commit the offence and it is a question of law o Attempting the Impossible  "whether or not it was possible under the circumstances to commit the offence"  If intend - not important that you COMPLETE the crime  Imaginary crimes o Punishment  Murder = life imprisonment + mandatory minimum if committed with a firearm (s. 239)  If crime normally life imprisonment for an indictable offence = maximum of 14 years for an attempt  If any other indictable offence - 1/2 the longest term might have been imposed if completed: Maximum is 10 years, then you get 5 for an attempt  Summary conviction - SAME max sentence as if completed - max $5000 and/or six months prison  If hybrid - depend on how tried - if indictable max penalty is one - half of the completed offence, summary get the same sentence for a completed offence Regulatory Offences Tuesday, February 26, 2013 9:43 AM Introduction  S. 91 of the Constitution Act says that the FEDERAL parliament has the authority to decide what are crimes  Quasi-Criminal Offence o A non- criminal offence that carries a penalty similar to that of a criminal offence but that is subject to less complex court procedures than are criminal offences. For example traffic and workplace safety offences  Provinces o Highway Traffic Act Regulatory Offences  A non-criminal offence that regulates conduct in the public interest, such as securities regulations. Regulatory offences are often dealt with at administrative tribunals and not in a court setting  Due Process o Procedural fairness; this means that the procedures are fair, lawful, impartial etc  Government delegates powers to agencies o Set standards and regulations o Powers  Fines  Send back to prison  Revoke licences  Deportation  Impartial bodies ensure that the government's authority is exercised in a fair and non- discriminatory way  Members o Specialized knowledge, training, education and/ or experience o Should have autonomy o Act according to regulations and legislation o Question of jurisdiction Use of Regulatory Offences  Minimum standards of conduct  Federal, Provincial, Territorial False or misleading advertising, the production of dangerous products, regulations regarding the handling and packaging of food products, pollution controls, safety issues in the workplace, standards for weights and measures, the control of natural resources  Public policy objectives True Crimes and Regulatory Offences  True Crimes o Inherently wrong - harmful to the population o More severe penalties, social stigma and criminal record  Regulatory Offences o Lawful o Protect the public from actions of business, industry etc o Less serious?? o Quasi-criminal, quasi-judicial powers Absolute Liability  True crimes - Crown must prove all elements b.a.r.d.  Regulatory offences - Crown just prove the actus reus  Many thought unjust o Fault irrelevant  Ping Yuen (1921) - soft drinks - no way to know other than open bottles o Alcohol in your pop Pros of Absolute Liability Cons of Absolute Liability  Too many loopholes for individuals and  No sense of justice! corporations to get out of responsibility  Administrative efficiency  No freedom of choice  Necessary to have effective trade, commerce  No evidence that there is a higher standard and industry of care when absolute liability Strict Liability  "Halfway house" method o Middle ground between requiring the Crown to prove all mens rea beyond a reasonable doubt, and not just convicting the person because they committed the actus reus  Once the Crown proved the actus reus, the burden of proof shifts to the accused to prove on the balance of probabilities that they were not negligent  Due diligence defence o "I know I acted and this is why I acted in this way" o You did everything you could to do your best o We are not going to say that you are absolutely guilty  Crown advantage, accused now has a defence o Balance of probabilities: Offences of Strict Liability  o Due diligence defence o Possession of break-in instruments o 351.1 Every one who, without lawful excuse, the proof which lies on him o Onus on the accused: they have to prove their case R. v. Sault Ste. Marie (1978)  Ontario Water Resources Act o "discharging, causing to be discharged, or permitting to be discharged or deposited materials into a body of water or on the shore or bank thereof, or in such place that might impair the quality of the water"  Private company dispose of garbage (defence) o The city of Sault Ste Marie stated that they put a private company in charge  Public welfare case  Strict liability o Mens rea; the city has to do due diligence and state why they acted in that way  Absolute liability? Strict or Absolute  Legislation, case law  Matter of public safety o Absolute liabilty  What is the sentence?  Wording of legislation? o Are they using terms like "absolute" or "mandatory"  Does it survive a Charter challenge? o Strict o Absolute: usually not Strict Liability and Due Diligence Defence  Levis (Ville) c. Tetreault (2006)  Insurance had expired; minimum fine of 300 dollars  Absolute liability  Passive ignorance: they had confused the dates and they decided to wait to get something in the mail instead of taking action to see what was wrong Restorative Justice Thursday, March 7, 2013 9:59 AM What is Restorative Justice?? o Built on a holistic approach to wrongdoing o The offender must admit their offence and be willing to hear how it affected another o It can involve the family and friends of the offender and the victim o The victim is empowered through-out the process  Not wanting to maybe move on o This leads to the reintegration of the offender o Te restorative process is a powerful way of addressing social, psychological and relational injuries  It views criminal acts more comprehensively  It involves more parties in responding to crime  Finally, it measures success differently  Adversarial system: it is a success when the accused gets punished harshly and put in a jail for a long period of time Why is Restorative Justice?? o There are opportunities to apply restorative justice processes to criminal case o Section 718.2 of the Criminal Code states that all methods of disciple should be considered for offenders  Police and other justice workers can use this system if they think it is best for the offender Basic Factors of Restorative Justice o The offence is viewed as affecting a relationship and the community o Punishment along is not effective in changing behaviour and accountability is established by repairing harm o Build offender skills (ie. Emotional intelligence) o Victims are central in the process and community members can be actively involved  There is a lot more support for victims by family, friends etc. Elements of Restorative Justice o Accountability o Community protection (feelings of safeness) o Competency development (reducing recidivism)  Changing people for the better Types of Restorative Justice o Mediation Services  Victim/offender reconciliation  Family group conferences o Survivor Programs  Target females who have been sexually abused; addressing common issues and problems o Healing/Sentencing Circles  This is an Aboriginal practice  People come together who are struggling with the problem and discuss it Restorative Justice in Practice o Build on the Process  Agree on a process and guidelines o Share Perspectives  But you dont want to put words into the mouth of the victim or offender o Develop Clarity and Understanding  Explore underlying factors  Trying to find what the REAL issue is o Develop Options  Mutually beneficial o Make Decisions  It is not a legally specific contract but it is still a contract Case Study: The Woolf Within o In this documentary, the robber started meeting with the victim that he robbed and because of it the victim got over his fear and the robber started with school. o Both parties benefited from restorative justice Analysis of Case Study o In the clip, we saw that the elements we talked about were used. Community protection was used because the victim was scared to come home and open his door because someone may be inside. But after meeting with the robber, the man got over his fear. This process also changed the robber for the better. He started going to school and got a job and now is also involved in his community with the restorative justice programs Part 1: Constitution Act, 1982  Charter of Rights and Freedoms (charter) which was created under the constitution o Parliamentary supremacy  The philosophy that the Parliament or legislature (properly acting) can enact or repeal any law that it chooses. o Division of powers  Set out in the Constitution o Empower judge  Does not have to enforce if it does not follow the Constitution o Roles of different laws and how they work together, and provides mechanisms for how they can be changed  Something is beyond the federal or provincial government's power and con override parliament o This allows check on government power  If the judge sees that the application is not being properly used, they can send it back to parliament or strike it down The Charter of Rights and Freedoms  s. 7 of the Charter provides that "everyone has the right to life, liberyt and the security of person" o Interpreted o What is life??? Fetus o Liberty o Security of person? What are the factors that go into it?  Strike down: the courts CAN but they use it in a measured way, they strike it down as little as humanly possible  Sever: o Reading down: interpreted as narrowly as possible; less inclusive o Reading in: Criminal Procedure - search warrant  Police and government investigators power to search and seize Charter- "secure against unreasonable search and seizure  o Search and seizure: a police practice where they can search property and seize evidence that may be needed in the investigation and prosecution of crime o Controlled Drugs and Substances Act; there are special rules when searching for drugs  11(7) provides that if by "reason of exigent circumstances it would be impracticable to obtain" a warrant  Have 'reasonable and probable grounds to search for evidence" Charter - Exclusion of Evidence  Way evidence is collected  "bring the administration of justice into disrepute"  R. v. Feeney (1997) o "fruit of a poisoned tree": if the police do something wrong at the start of the process, all the evidence could be thrown out because of that o Police found Mr. Feeney sleeping with blood all over his shirt near the seen of the murder  However, police did not have reasonable grounds to enter the house because  R.v. Harrison, (2008) o The seriousness of the Charter-infringing state conduct o The impact of the breach on the Charter-protected interests of the accused o Society's interest in the adjudication of the case on its merits Right to be Informed of Offence  Historically  In s.11 (a) that a "person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence" Arrest  The arrest of an individual by a peace officer or in some circumstances, a private citizen  Appear in court o Touching a person's body with the goal of detaining them or verbally directing the person that they are under arrest o Informed o A peace officer many arrest a person who has committed an indictable offence without a warrant in limited circumstances  Indictable offence  Must have witnessed the act, reasonably believes the offence has been committed, or is about to be committed  Warrant Citizen's Arrest  Criminal Code section 494 permits a citizen to arrest without a warrant any person that they  Must turn over the person who has committed the crime to a peace officer immediately  Limits placed on the amount of force that will be allowed Arrest and Charter Rights  Section 10 of the Charter provides that: o Habeas corpus: a writ available to a person who has been detained to immediately test the validity of the detention or imprisonment The Right to Remain Silent at Arrest  Innocent until proven guilty  Limited those not under arrest o Highway Traffic Act  Admissibility of statements  Cautioned  May be no immunity against the use of the evidence discovered or derived from answers if you do choose to answer. Beware! Right to Retain Counsel  s. 10 of the Charter to retain and instruct a lawyer without delay  Legal Aid  Cognitive issues  R. v. Whittle (1994) o Confessed to the murder and the lawyer tried to stop him from talking but he kept talking; however, after doctors found that Mr. Whittle had schizophrenia and the voices in his head were telling him to tell the police o Should his statements be admissible since he has a mental illness o SCC decided that the statements were involuntary and the statements were excluded. o Admissible: evidence that may be received by the court to help the fact finder resolve a controversy Right to be Tried within a Reasonable Time  S. 11  Length of the delay, any waiver of this right by the accused, the reason for the delay, and the prejudice that has resulted to the accused Part 2: Charter: Limitations of Rights  Government and individuals, not between two or more individuals o You have to have the government involved in some way to use the Charter  Government officials at government agencies  In the Charter, guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society o How do we limit people's rights?? Freedom of speech but we have defamation  Charter s. 1 - Oakes Test***** (EXAM) o Oakes test: possession of a prohibited drug - onus shifts to the defendant to show that they were not going to traffic the drug  Presumption of innocence-> the onus was shifted o Step 1: are you infringing the Charter for something important  Pressing and substantial test  Is this something in society that is so important that the rights of an individual are being impaired o Step 2: if it is justified there must be a "proportionality test"  3 elements to the proportionality test  Must accomplish only what is stated-> we need to do only what is NEEDED to be done  Should impair the rights "as little as possible" -> just taking care of one particular problem  Proportionate effect between the effects of the measures and the objectives o Oakes - SCC found that s. 8 of the Narcotics Control Act is over inclusive  Just because you have the drug in possession does not mean that you are going to be trafficking it  A reasonable limit that could be justified in a free and democratic society and s.8 was struck down  Step 1: is it important enough?? Pressing and substantial? YES  Step 2: were the means proportional? NO  Conclusion - s. 8 is struck down, not saved by s. 1  "Constructive dialogue"  Between the Supreme court and the Legislation; we need to reconsider what we are trying to do with this legislation  Charter and Oakes o Judges have this ultimate power - the charter- to strike down any of the legislation made by the government anytime they infringe the rights of the individuals o Does it infringe Charter rights - yes, s. 8 infringes the presumption of innocence o BUT - have court has another power to say that the infringement is ok in this limited circumstance (we limit hate speech - freedom of expression - but we infringe on that right everyday as a "reasonable limit" to our rights) o Oakes case - NOT ok to infringe presumption of innocence o s. 8 has to be struck down - not a reasonable limit on our rights - not saved by s. 1 o Does s. 8 NCA violate the Charter - YES o Is it an important thing trying to stop?? YES, drug trafficking o Does it try to stop drug trafficking in the best way possible?? NO, no rational connection between possession of drugs and trafficking o NOT saved by s. 1 - therefore s. 8 NCA s struck down  Confessions o "The introduction of a confession makes the other aspects of a trial in court superfluous" - Kassin  People start believing that they have actually committed the crime o Confession is not admissible unless the Crown shows that the statement was voluntary and that it was not made in fear or in hope of some sort of advantage by someone in a position of authority so that one can be sure that a statement is true and trustworthy  We want to believe that when people confess, they are doing it because they want to not because they are being pressured to say something  False Confessions o Interrogations are inherently stressful  "trembling, shivering, sweating, hyperventilation, frequent urination, and verbal incoherence o Three main tactics in police interrogation to obtain confessions  Isolation as a means to increase the suspect's anxiety and desire to escape  Confrontation whereby the interrogator accuses the suspect of the crime using real or fictitious  Minimization where the investigators conveys sympathy and provides a moral justification for the crime to lead the suspect to expect leniency upon confession o Maximization: telling the suspect that "we know you are guilty" or "we know you did it so just get it over with and tell us"  Interrogations o Other techniques include invading the suspect's personal space, keeping light switches, thermostats, and other control devices out of the suspect's reach and using a one-way mirror to allow other officers to look for signs of fatigue, weakness, anxiety, and withdrawal as well as misinterpreting the suspect's body language  Police are trained to get a confession; all they want is a confession so they can move on with another case  Plea o Section 606 of the Criminal Code provides that an accused who comes before the court must pleas either guilty or not guilty  You can NOT plead INNOCENT o Judge accept?  At the end of the day, the judge gets to decide whether they think that party understands it or not  The defence and Crown could come to a decision and the judge could make a different decision (final say) o Vital step - writing  They want to make sure that the defendant knows what they are agreeing to o Innocent: Crown has to absolutely prove their case o Overwhelming majority  Plea Bargaining o An agreement by the accused to plead guilty in return for the prosecutor's agreeing to take or refrain from taking a particular course of action
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