ALL COURSE NOTES for LS 102.docx

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University of Waterloo
Legal Studies
LS 202
Frances Chapman

Supernatural and Biological Theories Thursday, January 10, 2013 3:05 PM First Class: R.v. Dudley &Stephens  Cannabalism: three men killed the cabin boy and ate him  Was it murder??  They were charged with murder and they were given the death sentence (hanging)  It was lowered to life in prison; and then released in 6 months Introduction  R.v. Drummond (women shot pellet gun into her vagina and baby was born and survived after pellet was removed from the brain) o Homicide child AFTER birth dies injuries BEFORE birth o Mother=no status inside the womb, did not die from injuries, s. 223 (2) does not apply o Judge= "no matter how desirable it may be, I cannot construe section 223 in a manner that removes the words at the end of 223(2): "As a result of which the child dies after becoming a human being o Sentencing: 7 1/2 months in a secure psychiatric facility- full assessment o Got 30 months probation after trial  Law is a "continuing process of attempting to solve the problems of a changing society, [rather] than as a set of rules." S.M. Waddams o Bringing all the different laws together to come to a conclusion  "Test case": cases that have never been to court before; treated more liently or more harshly depending how the court wants society to view this issue What is Law?  What are the responsibilities of lawyers (criminal specifically)  Why was this legislation put into place?; how is the court going to use this? Civil Law vs. Criminal Law  Private law- civil law; Public law- criminal law  Common law o Common law can mean the system of law based on judicial decisions o All of Canada, other than Quebec, uses a common law system in addition to countries like the United States, England, New Zealand and Australia Introduction to Criminal Law  One act civil and criminal o You go to the criminal court first and then go to the civil because if you win the criminal court you are more likely to win the civil case  Criminal law is the most intrusive form of public law and theorists have attempted to understand the criminal law for centuries o Why did that person do that?? About the "why" (criminology) o After the action, what do we do? (criminal law) Vagabond: in England, anybody unemployed. They were physically marked so everybody  knew if they have stole etc Supernatural Theories of Crime  Two solutions: exocism or punishment and death used to destroy the devil  Witches: 1400-1700 B.C. Killed hundreds of thousands of innocent people Witch Trials  U.S. -Salem 1692  Witchcraft was one of the most common crimes in Europe in the 17th century  Tituba: pretended to be a witch and "controlled" girls who would lie about who were witches  Moral Panic- that's what sociology was referred to in that time o Happening today: terrorism, epidemic, the world ending Supernatural Theories of Crime  Torture was often used to extract confessions from CANON law used in most European courts required two eyewitnesses or a confession o Canon law: church law o Trial by battle: two people fight and whoever won was innocent o Trial by ordeal (aka trial by water) o Compurgation: the accused would gather and say that you were innocent Witchcraft today  Pretending to practice witchcraft etc  Code 365: punishable on summary conviction  Proctor and Gamble o Received 19.6 million dollars because of the company that was telling everyone that they were devil worshippers etc Biological and Psychological Theories of Crime  Look in the text.  Italian physician Giambattista della Porta (1535-1615) founds the school of physiognomy o Physiognomy: can the shape of your skull determine if you were a criminal or not  Lombroso's Theory of Atavism o Italian Anthropologist/ army physician  Associations between body type/appearance/behaviours  Studied criminals and the bodies of dead soldiers  Identified by sight: huge jaw, canine teeth, abnormal nose, prominent lips eg.  Advanced science of phrenology which involves measuring the size and shape of the skull  Atavistic man  Physical features of a human at an earlier stage of development  Female Offender and Lombroso  The criminal women is a monster/ women are stupid like children  Said he could tell what women..twisted theory  Prostitutes; hairy women o Discrediting Lombroso  Failed to replicate studies  Charles Goring, doctor and medical officer collected data on over 3000 English convicts  No correlation between body and head measurements and criminality  Eugenics: selective breeding; certain people will have children so everyone will be perfect (Nazis)  Craniometry: trying to measure the skull to see who was going to be criminal Conclusion  Job of the law student not why they have committed a crime but what to do with them when the enter the legal system  Ex post facto: after the fact  Law is full of uncertainty; and full of rapid change; "hard cases make bad law" Sources of the Criminal Law Tuesday, January 15, 2013 10:11 AM 1. Criminal activity is rampant? 2. Immoral v. Crime o Abortion; adultery; etc. 3. Power to prosecute criminal matters- "division of powers" in Constitution Act o Federal o Federal Parliament of Canada- Constitution Act 1867 4. Provincial offences o Quasi-criminal- driving offences 5. No retroactive 6. Rule of Law o When we are taking over somebody's freedom, we have to make sure it is done right o Benefit of the doubt to the accused 7. Not vague o If something is vague then we will not hold the person accountable 8. Legislation o "bad laws are the worst sort of tyranny" o Crime consists of conduct that is prohibited, because it has a negative impact on the public, and the law dictates what penalty can be imposed when the law is violated o Criminal Code- substantive criminal law because it talks about specific crimes and defences 9. Common Law o Areas that are not codified  Necessity- common law defence  Section 8 (3) of the Criminal Code provides that if the common law creates a justification of an excuse  People can defend themselves in new ways; new technology.  Have every way to defend yourself against the state  New defences  Common law offence?? 10. Criminal Law and Civil Law o Tort= private wrong o Assault and Battery o Civil  Filing of a statement of claim and statement of defence  Victim in control; paid for their lawyer etc  Standard of proof= balance of probabilities Plaintiff and Defendant   Found liable and collects damages o Criminal  Federally or provincially judge  Name of the state= Crown or Regina (case is against the society)  Crown- work with the police to get the evidence  Plead- either plead guilty or not guilty  Victim little control  Standard of proof- beyond a reasonable doubt  Victim and Accused  Found guilty and will be convicted and punished Wrong judgment- fundamental basis system  "better to let nine guilty persons go free than convict one innocent person" 11. Crime o Historically- treasons, felonies, and misdemeanours  The U.S. Still goes by these terms but not in Canada o Today: summary (least serious), indictable (most serious), and hybrid (the middle) offences  Summary: 5000 dollars and 6 months in jail is the worst sentence with a summary offence  Indictable: punishable by sentences of 2, 5, 10, 14, or life in prison (25 years)  ****Hybrid: at the discretion of the Crown  Future plea negotiations  The Crown attorney has a TON of power with deciding whether the offence is summary or indictable  Can they get a conviction in the case?? That is the principle that drives them 12. Adversarial System o System where disputes between parties are resolved by an impartial decision maker after hearing the evidence of both sides (Judge- then decides on the law) o Crown Attorney o Defence Lawyer o Beyond a Reasonable Doubt o Defined- R. v. Lachance 13. Judges o Can they be impartial?? Not fully o Federal, Provincial, or Territorial o 10 years of being a lawyer before you can be a judge o Criminal- admissible o Judge and jury o Justices of the Peace  Administering oaths, reviewing summons and warrants, administering oaths for affidavits  First appearance  Municipal and provincial - HTA  Wear a green sash o Lawyer 14. Jury o Understand and retain all of the evidence properly presented to them at trial o "trier of fact"- the person who is making the decision o Inadmissible evidence?? The judge decides what evidence can be used in the trial; the jury has to leave while this is decided (voir deir) o "Obstructed justice" o May be dismissed if they have a personal interest in the trial o Selected form pools of citizens summoned randomly from electoral rolls in a province or community o Content: 12 jurors The Court System Thursday, January 17, 2013 10:37 AM Provincial Inferior Courts o Justice of the Peace (Magistrates) o Youth Court, Family Court, and Traffic Court o Preliminary hearings Superior Court of Justice o Just above the Court of Justice... Supreme is the top Trial Courts in Canada o Section 469 of the Criminal Code provides that some offences must be tried by the Provincial Superior Court of Justice  Treason, murder, and other very serious crimes o Other indictable offences can be tried in this higher level of court at the choice or "election" of the accused o Provincial Court Judge, a Superior Court Judge sitting alone, or a Superior Court Judge and Jury o Appeals from the provincial court criminal division and family law courts if they were started at the lower level Court of Appeal o Reviewing decisions of lower courts  You have to find some legal reason why you can appeal o Read arguments o Panel of three judges o Apply law to facts AS PRESENTED AT TRIAL o Trial= facts o Appeal- legal rules o Appeal as a right Supreme Court of Canada o Highest court since 1949 o 8 Justice, 1 Chief Justice  Panels 3, 5, 7, 9 judges o Seek leave after court of appeal  Particular significance  Raise an issue of public importance, and  Should be decided by the Supreme Court of Canada o Leave applications  600-80 heard The Legal Profession and Rules of Professional Conduct Thursday, January 17, 2013 10:54 AM Crown Attorney o Hired by the state o Attorney General o Burden of Proof on the Crown o Present all evidence  Not just about winning and losing  Even if you come across evidence that is against your argument but they owe it to society to show all the evidence  Discretion  Protect the public interest  Negotiate Defence Lawyer o Duties of all lawyers  Raise fearlessly every issue, advance every argument, and ask every question, however distasteful LSUC Rules of Professional Conduct  Rule 1 o Relationship to the administration of Justice  Citation and Interpretation  Duty of care on the practice of law and discharge all responsibility  Ethical ideals of the legal profession  Look at the intent of the rule/ cant be trying to find loop holes  Rule 4 o The relationship to the administration of justice, other lawyers and the court  Advocacy  Honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect  Bring the administration of justice into disrepute Lawyer's Responsibility to Clients: Rule 2- Competence  Definitions o "Competent lawyer" means a lawyer who has and applies relevant skills, attributes, and values in a manner appropriate to each matter undertaken on behalf of a client including o (a) knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practices Sharp Practice  In Ontario, rule 6.03 (3) specifically addresses mistakes and says that a "lawyer shall avoid SHARP PRACTICE and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's rights o You cant take advantage of another lawyer's mess ups; e.g. A lawyer accidently sends something to you Exceptions to Confidentiality: Rule 2- Permitted Disclosure  2.03 (2) When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required o Imminent risk to identifiable person or group  2.03 (3) Where a lawyer believes upon reasonable grounds that there is n imminent risk to an identfiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being , the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required o Future harm (if it has not been done yet, then it is not confidential. Anything in the past is confidential) o Different than solicitor-client privilege Does a lawyer have to represent every client?? Conflict of Interest 2.04 (1) states that A "conflict of interest" or a "conflicting interest" means an interest (a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or prospective client, r (b) that a lawyer might be prompted to prefer to the interests of a client or prospective client Potential to be a witness Client already has a Lawyer Illegality Ethics in the Criminal Law  Defence lawyer's duty to protect the client from conviction, except where a properly formed court, with jurisdiction, by legal and properly collected evidence is convicted by a judge and/or jury o Technicalities How can you defend that guilty person?? A lawyer has no business with the justice or injustice of the cause which he undertakes, unless his  client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge o Samuel Johnson (1709-1784), Tour to the Hebrides, 15 August 1773 Limitations  Personal opinion of the lawyer??  Tuckiar v. R. (1934), 52 C.L.R. 335 (H. C. Australia)  May be true!  R.v. Delisle (1999) Limitations if a client confesses  A lawyer who knows that the accused has confessed cannot cal a false alibi to the stand to lie to the court o Object to the jurisdiction of the court o Object to the form of the charges o Object to the sufficiency or admissibility of the evidence o Test the evidence of each witness to make sure that the evidence is proof that the accused is guilty of the charge; BUT o Must not suggest that another person committed the offence o Must not call evidence that the lawyer believes to be false  R.v. Li (1993) o May have raised a reasonable doubt about the identification of the accused o Did not breach any ethical rule as he did not put the accused on the stand to lie, and he did not advance any defence inconsistent with the facts as he knew them o A lawyer may point out witness vulnerabilities even if they know that their evidence is accurate Client Perjury  A false statement under oath with the intention of misleading the court  "knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable" or "knowingly attempt to deceive or participate in the deception of a tribunal or influence the course of justice by offering false evidence"  Withdraw from the case, refuse to call the client to the stand, disclose the perjury to the court or another third party, refuse to use this testimony in a summary case, or question the accused in a very passive way not to elicit this incorrect statement  Perjury has happened suddenly on the stand  Recess  Will not be dissuaded from continuing to commit perjury, then the lawyer can withdraw, disclose the matter to the court or Crown, or continue with the questioning as if nothing is wrong and not refer to that testimony in the CLOSING argument The Client who Maintains Innocence  Plead guilty? o A lawyer cant tell their client to make them take the plea deal  Many reasons to do: o Protect another party, the publicity, stress, or the cost of a trial might be more than the client is willing to take on o A plea may be a quick resolution to a very embarrassing situation, or they may lack the confidence to fight a criminal charge  Judge accept?? Incriminating Physical Evidence  Difficult issue o Confidentiality o Administration of justice o How to dispose??  R.v. Murray (2000) o Murray was the defence lawyer for Paul Bernardo o Bernardo told his lawyer to go to into his house when the police weren't there, and found the tapes o This showed that she was actually involved in the murders o Murray did not show the tapes and was charged for obstructing justice because he didnt show them to the Crown o However, he didnt destroy the tapes o Lawyer must not knowingly conceal evidence o Special committee  Termination of the Client: Lawyer Relationship o Dishonourable way, or there is a serious loss of confidence between the parties o Must give back all documentation and property to the client or their new lawyer, disclose all relevant information, account for all outstanding fees, and cooperate with the subsequent legal counsel  Discipline o Ontario under s. 33 of the Law Society Act, a "licensee shall not engage in professional miscondut or conduct unbecoming a licensee." o Look at textbook for ways can be disciplined  Disbarment o A termination of a membership in the law society. A lawyer's name is taken from the list of barristers and solicitors in the province  Justice Chisvin o Newmarket, Ontario, July 2011 o Called for a 20 minute recess 17 minutes later came back and clerk paged all parties to come back to the court 23 minutes later clerk again paged the Crown and told to tell the Crown if there not a prosecutor here within one minute, the list will go for want of prosecution o McCallion came late and the judge dismissed every single case and walked out o Went to a 4 person panel of the Ontario Judicial Council Was judicial misconduct that had a "detrimental effect on public confidence in the administration of justice" BUT "was an aberration by a hard-working judge" Actus Reus Tuesday, January 22, 2013 10:06 AM  Elements of a Criminal Offence o Act or omission (Actus reus) o Act or omission in violation of a law o Criminal intent (mens rea) o Union actus and mens rea o Punishment provided in law o **The Crown must prove an offence through proving both the actus reus, the voluntary act or omission that is the basis of the criminal offence, and the mens rea  Elements of a Crime o Physical action that constitutes a crime with evidence of that unlawful conduct o Crown must show that the actus reus occurred B.A.R.D o Trigger: you have to act on it; not just be thinking it o Mala in se = "evil in itself" (e.g. Murder) o Mala prohibita = "prohibited evil" (e.g. Parking in the wrong place)  Voluntariness o Willing mind; mental elements o Onus of proving voluntary  Mental element of actus reus (Crown has to prove) o Act or omission must be one which a person is physically capable of doing and a product of conscious control o Presumption o Involuntary (in an unconscious state) o R.v. Ryan (1967): accidentally squeezed the trigger  Causation o Crown has to show that the event was "caused" by the accused's conduct o S. 222 of the Criminal Code - Homicide  A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being  What does this section tell us? ...BY ANY MEANS!! (very broad)  But-for test: but for your actions, it would not have happened  Substantial and integral cause of the death  Example of Analysis of Actus Reus o S.88 of Criminal Code- Possession of Weapon for Dangerous Purposes o Every person commits an offence who carries or possesses a weapon, an imitation fo a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence  Actus Reus with No Act?? o Omission or failure to act o Law imposes a duty to act, and therefore failure to act can be an offence o Housebreaking instruments o "Care or control" of motor vehicle First act voluntary   Impaired  Care or control  Ford (1982)  There was a possibility he could have been driving; just sitting behind the wheel  Buckingham (2007)  Burbella (2002)  Duties to Provide the Necessaries of Life o Section 215 of the Criminal Code, a parent, foster parent, guardian or head of a family has a duty to provide necessaries of life to a child under the age of 16, to a spouse, or to someone in their charge who is detained, aged, ill or mentally disordered, who is unable to provide themselves with the necessaries o Objective?? o Criminal negligence, causing bodily harm by criminal negligence or manslaughter o E.g.  Naalik (1993)  Barry (2004) o Toews (1985) o Pike (2004) Mens Rea Tuesday, January 29, 2013 10:09 AM  Elements of a Crime o Mens Rea o Requirements that a GUILTY MIND accompany the act that constitutes a crime o Intent to do the act knowing the consequences or proceeded with reckless disregard (impaired) o "Morally blameworthy"; the innocent must not be punished o "innocent not be punished" -Justice Lamer  Fundamental principle of justice section 7: life, liberty o Murder - s. 229 of the Criminal Code o Culpable homicide is murder where the person who causes the death of a human being  Means to cause his death  Means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not o Murder MOST serious - have to show that the person has to foresee that there may be death o Motive  Much of the time - motive not matter  Latimer - horribly disabled daughter so he put her in a car and left it on; died of carbon monoxide  May be an element of there is absolutely NO MOTIVE to commit the crime, or it can be an issue of there was a motive to commit that crime  Charemski (1998) - had a huge financial gain if his wife was dead, she was cheating on him  "proved absence of motive" NOT "absence of prove motive" o Two distinct tests for mens rea in Canada  Subjective  That deliberately intended to bring about the consequences or  Subjectively realized their conduct might produce those consequences whether or not they actually knew the risks  "what was actually going on in the mind of this particular accused at the time in question"  Objective  "reasonable persons, in the same circumstances as the accused, would have appreciated that their conduct was creating a risk of producing prohibited consequences and would have taken action to avoid doing so"  Onus on the Crown  What a society asks of everyone  Not what was in their mind but that "what should have been there, had the accused proceeded reasonably"  R.v. Creighton (1993)- Objective  They had to look to see if there was a mark departure of what a reasonable person would have done; not looking at the person themselves  Actus Reus/ Mens Rea o Must happen at the same time  R.v. Fagan  He didn't back over the officers foot on purpose, however, he left the car resting on his foot for awhile o Mens Rea? Mistake of fact  R.v. Ladue  Ladue thought a girl was sleeping so he had sex with her and then realized that she was dead; convicted  Subjective Mens Rea - Forms of Intent o Intent/Knowledge  s.155: "knowing"  s. 265: assault- intentional force  Murder -s. 231 of the Criminal Code  "planned and deliberated"  First degree- ineligible for parole for 25 years; planned except if a police officer, prison guard etc are killed  Second degree- ineligible for parole for 10 years; not planned or deliberate  Indirect intention  A person who foresees that a consequence... Achieve some other purposes, intends that consequence  Transferred Intent  Ancient common law principle  Takes the mens rea of an offence to an intended victim and transfers it to the actus reus of the same offence to another victim  Because both actus reus and mens rea have to happen at the same time  Droste (1984): failed to kill his wife; successfully killed his kids though  Said he only wanted to kill his wife; got first degree murder even though his kids werent the intended victim o Recklessness  R.v. Sansregret (1985): reckless as to consent of sexual assault victim  Recklessness and/or knowledge on the lack of consent are both states of mind that will justify a conviction  s.433: the person knows that or is reckless with respect to whether the property is inhabited or occupied  Form of Intent for Recklessness  Doing anything or in omitting to do anything that it is his duty to do  Shows wanton or reckless disregard for the lives or safety of other persons o Wilful Blindness  Exits where the person is virtually certain something is the truth but they "shut their eyes" to the possibility  Different than recklessness: Don't care... Lalalala ; you know something is fishy but you pretend you don't see it  Objective Mens Rea o The standard the Crown has to prove that the accused person's conduct fell below the standard of a "reasonable person"  Same circumstances o Test= marked departure from the standard of care o Penalty less? o Morally blameworthy o No personal characteristics  Personal circumstances, particular activity, and particular knowledge o Dangerous driving, careless driving o "accused driving conduct fell below the standard of the reasonable driver acting prudently in all of the circumstances" o Dangerous and careless o "Modified objective test"- objective with a little bit of subjective 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
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