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Criminal Law Master Notes.doc

37 Pages

Course Code
Philosophy 2080
James Hildebrand

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Introduction to Criminal LawCivil and Criminal Law Two parallel but separate systems Concurrent liabilitysame set of facts and same circumstances can generate a criminal case and tort caseEx Charged criminally for stealingtheftTort Law stealingconversionThe Criminal Code is entirely a creature of StatuteThe difference between a tort and a crime The state prosecutes the case in criminal lawarea of public lawthey are the pursuer kind of plaintiffwhere Tort is civil In Canada crown attorneys lawyers employed by state in criminal lawIn Criminal Law every offence is codified ie spelled out by the Federal government in the Criminal Code of Canada This means that Criminal Law is entirely statute Before the turn of the century and the codification of all Criminal Law it was common law Although some defences are codified there is no exhaustive list of defence that is codifiedSome examples of positive and negative defences that are available areEg SelfDefense positiveThis is allowed with reasonable grounds but there are restrictions The reason that this defence is codified is because although it is severe to hurtkill another person in any case the law doesnt want to take away the right to defend oneself against harm Excuses must be in a situation of imminent dangerDefensive duress certain crimes the law wont recognize the offence of duress eg murderIf someone holds a gun to your head and says shoot that person and you do you cannot be acquitted even if you know you are going to die if you dont shoot the other personMorally speaking you are in no better person than the innocent person you killedLaw will hold you accountable for thatHas to occur immediately after the occuranceEgMistake of fact negativeie honest belief crown failed to prove mens reaeg If I thought that it was my book and I picked it up and left with it thinking it belonged to me I would not be convictedif the offence can be specific intent can use selfintoxication as a defenceHave to have an honestly held belief based on reasonable grounds eg under threat of imminent harmNegative defences crown has failed to prove all elements something is missing from the Crowns casesays they did they were said to have done but they were justified for doing itCriminal Law has a strong moral component ie it is how we collectively show our disapproval because of actions that either cause harm or are simply morally wrong Criminal Law is public law ie the State is like thewhich is all powerful This means that the public ie state is pressing charges In a case of abuse for example even if the victim decided that heshe doesnt 1want to press charges it is really not up to himher because it is not the victim pressing charges but rather the state Some acts can be both Criminal and Tort law and can have different results for each because of the different standards In Criminal Law the Crown must find guilt based on the standard of proof which is beyond a reasonable doubt whereas in Tort Law the onus is on a balance of probabilitiesEg In the OJ Simpson case he was accused on killing two people Criminally OJ was not found guilty ie because the Crown failed to meet their onus beyond a reasonable doubt However civilly thejust had to prove on a balance of probabilities that OJ likely caused the two deaths therefore thesucceeded In criminal law the onus of proof is on the crown to prove guilt so the accused is innocent until proven guilty High standard of proof in Criminal case is because of the penalty In tort we sue for money In criminal penalties are much different people could go to jailThe Objectives of criminal law are different too1Deterrencestop people from doing things that we dont think are rightSpecificthat particular person we charged wont do it againGeneraleveryone knows that guy got charged people will see that and not do itAlso expresses our extreme disapproval a way of rating and telling people what we think of that conduct Another objective appears to be an element of vengeance not specifically stated in criminal code however But it must be an element of itDifferences in procedure in private and public lawDiscovery both sides of a civil tort case have to show all their evidence long before they get to trial Called disclosure in criminal lawmeans crown has to disclose all its evidence before you get to trial so you can set up a defense you get to know the case you have to meet It has will says the witness will say photographschance to know the caseprocedural casenew evidence you can have adjournmentyou need to have an opportunity to preparevery important right Defense does not need to disclose their defense to the crown They can surprise the Crown accept if there is an alibi defense if youre saying that you were somewhere else and have to give the crown written notice because if it checks out then the crown can withdraw remember trials are expenseThe defendant does not have to lead evidence nor do they have to take the stand Usually they shouldnt take the standCrowns job is to meet its onus every defense available to law has to be met Lawyers are not allowed to elicit false testimonycollusionassisting to lie as well The defendant in a criminal case is not a compellable witnessYoure under no obligation to assist the crown in convicting you you dont have to talk to the authorities if youre not charged unless you witness a crime then you are a compellable witness can be subpoenaed About your own actives youre not compellableThe state not only prosecutes they make the decision whether or not to prosecute The private citizen usually 2does not press charges its the crown in criminal cases The victim is just another witness the process is usually always about the person charged Crowns job is not to get a conviction but to ensure a fair trial Cases are mostly about the accused and not the victims Today we have the victim impact statement that gives the victim some recognition that they were hurt Doctrine of Strict Construction ie strict interpretation The Criminal Code is interpreted very narrowly and if there is any ambiguity it is read in favour of the accused rule of interpretation ie one cannot be convicted unless actions are exactly what are spelled out Mistakes are never taken out on the innocent Also the Criminal code is entirely within the jurisdiction of the federal government In order for something to be considered a criminal offense it must be found in a statute there is a definite exhaustive list of criminal offenses which have to be codified in order to applyElements of a Criminal Casemust prove all 3 beyond a reasonable doubt1Actus Reusthe act must be voluntary the thing done wrong ie must prove that the prohibited act occurred The most obvious Actus Reus is particular conduct ie an act or an omission Note omissions are rarer Sometimes consequences are spelled out and required and are thus part of Actus Reus Sometimes Actus Reus can be a set of circumstances such as being where you are not supposed to be eg loitering body house gaming house Actions must be voluntary thus if lack capacity to act voluntarily then Actus Reus might not even be met Refers to conduct voluntary act can be an act or an omission or failure to act although crimes of omission are rare and you need to have a lawful duty to actEg parent care of child is responsibility fail to give it life stuff and you fail then that is a crime2Mens Reathe mental aspect ie must prove that there was intention to do the criminal act even if didnt do it knowing that it was illegal If you dont have mental element then you can be acquitted Note This is usually the hardest element to prove Subjective intention ie as opposed to objective intention is usually what is at issue ie what the accused actually thought or knew Some regulatory offences dont require Mens Rea eg parking in a handicap parking spot There are four degrees of intention 1Intent2Knowledgeie as if you intended eg possession requires knowledge 3RecklessnessIf one knows that something is likely to happen as a result of an action ie a reasonable person would know but the action was done anyway4Wilful Blindness Didnt know on purpose 3Causationmust prove that the accused was the one to actually cause the result Objective or SubjectiveIn criminal we get to rely on our own stupidity unlike tort law if jury actually believes you then you can be 3
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