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Study Guide

CRI225H1- Final Exam Guide - Comprehensive Notes for the exam ( 28 pages long!)
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28 Pages
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Fall 2017

Department
Centre for Criminology and Sociolegal Studies
Course Code
CRI225H1
Professor
Breese Davies
Study Guide
Final

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UTSG
CRI225H1
Final EXAM
STUDY GUIDE
Week 5
Monday, November 13, 2017
10:53 AM
Q: How are legislative sequels dealt with in the SC?
1. Convention of deference to parliament: history of sequels gives an indication of how it will deal with the
sequels
a. Once law comes back, courts defer to parliamentary supremacy
b. SC not in the business of dictating what good policy is
c. Parliament represents constituency
d. Reluctance of telling parliament what to do
2. Contextual Chief Justice Beverly McLaughlin doesn’t believe in deference
Next Lecture: Degrees of Objective Mens Rea read s. D in regulatory offences and corporate crime
CONTINUATION OF LAST WEEK
Aiding and Abetting
Separate offences
Aiding: assisting
Abetting: encouraging
When it comes to establishing intention, need to prove that the accused intended in aiding and/or abetting
Question of why you are aiding and abetting has nothing to do in establishing mens rea
All that’s required is proving intention
Does this mean that motive is irrelevant?
Not in terms of establishing actus res and mens rea
No, not irrelevant, motive and the subjective reasons as to why a person was participating in a
crime are relevant for establishing defenses and that motive and subjective factors specific to the
accused will factor into sentencing
Courts are very reluctant to make constitutional requirements when it comes to fault specific to subjective
levels of intention
Do not want to place people at an advantage
The ambitions of due process are saved with the ability of a judge to tailor a sentence to the specifics
of an individual
Common law dictates that proving aiding or abetting requires the establishment of a high level of mens rea,
sometimes higher than those committing the crime itself
Why?
They are subject to the same sentencing options as those who committed the crime
Sentence is relatively the same
MENS REA
Tension between re justice and justice that takes into consideration the perspective of the accused
Theme 1: Case Law vs. Judicial discretion
Theme 2: If subjectivity is problematic, from the perspective of fairness and objectivity, when can we
take the personal perspective of the defendant into consideration
Theme 3: Why has the SC consistently shown reluctance when it comes to standards of fault part of
our constitution?
One situation requiring subjective fault: murder, attempted murder, and war crimes
Outside of murder, the element of fault (mens rea) is usually a matter of judicial inference
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Why?
Is the Criminal Law objectively or subjectively based?
Punishment is the ultimate outcome of the finding out guilt
Crimes constructed with two elements with a standard of assessing the accused’s behaviour (which is
vital)
Core principal: presumption of innocence
Must look at how cases of fact
Triers of fact will always colour their decisions by subjective standards (who is this person?)
In the most serious of cases (murder), triers of fact will always think what the reasonable person in this
situation ought to have done
Formal requirements of law vs. reality of cases
Subjective and objectives standards can blur when proving the fault element
We have a whole history of common law that will suggest the courts inevitable take into consideration
subjective standards of fault even when there is only an objective requirement
Unless the fault element is explicitly included in the offense (wilfully, intended etc.), courts are often left to
their discretion
Not clear: SC to date has attempted to reign in this type of discretion in the lower courts
In their rulings on the requirements of fault, the courts have dictated that an objective requirement of
fault should be a standardized approach to criminal offenses
What would a reasonable person do?
What hangs in the balance?
Consider: variation undermines reliability (people should know what they are up against)
We have: Reasonable person standard
Why does this matter, what is the problem of this?
Too much objectivity in law means that it is easier to prosecute you
Makes it easier for the crown to show what the objective standard and compare you to it
But people “have various frailties” that to some degree negate reasonableness
But the only time that subjectivity is a requirement applies to murder, attempted
murder, and war crimes
Stigma, severity of punishment factors into establishing subjective fault for murder, attempted murder,
and war crimes, everything else should be compared to an objective standard of reasonableness unless
the law specifies otherwise or if there is a logical requisite
Subjectivity in itself is rare as a factor that satisfies a guilty verdict
SC argued that traditional crimes (murder) which attract great social stigma and are fixed to severe
punishments require subjective requirement
From 1990 on, the Courts have reduced the requirement of subjective culpability for most crime
No constitutional requirement that intention (specific) extend to the consequences of all unlawful acts
Practical reason: if the SC decides, at a constitutional level, that subjectivity must flow logically from
any crime that carries with it a severe penalty, they would be explicitly limit the government in setting
its objectives (Something the SC is unwilling to do)
Once a constitutional requirement has been decided upon, the government has no recourse when it
comes to creating a legislation requirement of a lower standard of fault
But can’t they use s.1?
If the government would limit the right by establishing a lower degree of fault using s. 1.
No, when it comes to establishing what is required for mens rea, you are talking about s.7
(principals of fundamental justice)
Limitations to life, liberty, and security must be in accordance with the principles
of fundamental justice
If courts establish that all crimes that carry with them a severe punishment, then
this becomes part of the constitution, government has no recourse because it
cannot contradict s. 7
If you fail at s.7, there is no s. 1
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Description
[CRI225H1] Comprehensive Fall guide including any lecture notes, textbook notes and exam guides.find more resources at oneclass.com Week 5 Monday, November 13, 2017 10:53 AM Q: How are legislative sequels dealt with in the SC? 1. Convention of deference to parliament: history of sequels gives an indication of how it will deal with the sequels a. Once law comes back, courts defer to parliamentary supremacy SC not in the business of dictating what good policy is b. c. Parliament represents constituency d. Reluctance of telling parliament what to do 2. Contextual – Chief Justice Beverly McLaughlin doesn’t believe in deference • Next Lecture: Degrees of Objective Mens Rea – read s. D in regulatory offences and corporate crime CONTINUATION OF LAST WEEK • Aiding and Abetting • Separate offences Aiding: assisting • • Abetting: encouraging • When it comes to establishing intention, need to prove that the accused intended in aiding and/or abetting • Question of why you are aiding and abetting has nothing to do in establishing mens rea • All that’s required is proving intention • Does this mean that motive is irrelevant? • Not in terms of establishing actus res and mens rea • No, not irrelevant, motive and the subjective reasons as to why a person was participating in a crime are relevant for establishing defenses and that motive and subjective factors specific to the accused will factor into sentencing • Courts are very reluctant to make constitutional requirements when it comes to fault specific to subjective levels of intention • Do not want to place people at an advantage • The ambitions of due process are saved with the ability of a judge to tailor a sentence to the specifics of an individual • Common law dictates that proving aiding or abetting requires the establishment of a high level of mens rea, sometimes higher than those committing the crime itself • Why? • They are subject to the same sentencing options as those who committed the crime • Sentence is relatively the same MENS REA Tension between re justice and justice that takes into consideration the perspective of the accused • • Theme 1: Case Law vs. Judicial discretion • Theme 2: If subjectivity is problematic, from the perspective of fairness and objectivity, when can we take the personal perspective of the defendant into consideration • Theme 3: Why has the SC consistently shown reluctance when it comes to standards of fault part of our constitution? • One situation requiring subjective fault: murder, attempted murder, and war crimes • Outside of murder, the element of fault (mens rea) is usually a matter of judicial inference find more resources at oneclass.com
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