Criminal Law Reading 1.docx

Criminal Law Reading 1  Basic elements of criminal and regulatory offences are the prohibited act and the required fault element Crime in Canada (pg.1)  Most crimes in Canada are theft of personal or household property  Most crimes are not reported to the police based on perception that reporting would not be useful for a crime that is not serious enough  Perpetrators of most violent crime is often someone known to victim Criminal Process (pg. 3)  Process starts with decision of legislature to make certain conduct illegal  Criminal law is then enforced by police who respond to the decisions of crime victims and sometimes investigate crime itself  Police however are restricted to some investigative activities through rights of the Canadian Charter of Rights and Freedoms (i.e. right to council and right against unreasonable search and seizure)  If accused is charged, trial process begins  Crown decides what charges are warranted and can make decision to divert charges outside of courtroom  Vast majority of cases in Canada are decided by judge without jury Sources of Criminal Law (pg. 5)  3 main sources 1. The Constitution (including both division of powers and Canadian Charter of Rights and Freedoms) 2. Statutes enacted by legislature including the Criminal code and other statutes creating offences 3. Judge-made Common Law in form of defenses that have not been codified in Criminal Code and common law presumptions of fault  Not all sources are equal and The Constitution is the supreme law and prevails over both statutes and common law  Criminal offence that is enacted by parliament can be struck down by courts on the grounds that it violates the Constitution  Statutes prevail over common law but at the same time, result must accord with the constitution and statutory abolition of fault requirements may be held to be unconstitutional as it could result in convictions that violate the Charter  Any limit on constitutional right protected under Charter must be either demonstrably justified under s. 1 of the Charter or enacted notwithstanding the fundamental freedoms, legal rights, or equality rights under the Charter Criminal Offences  Criminal laws are primarily designed to denounce and to punish inherently wrongful behavior that presented serious risk of harm  Courts consider these purposes when sentencing offenders, but are also concerned with the incapacitation and rehabilitation of the particular offender and with providing reparation to victim and community for crime committed Regulatory Offences (pg. 6)  Most offences in Canada are regulatory in nature  Primary purpose of these offences is to deter risky behavior and prevent harm before it happens, rather than to punish intrinsically wrongful and harmful behavior Criminal Law and The Constitution  Only the federal parliament can enact criminal laws  Provinces can enact regulatory offences and such offences can even be punished by imprisonment  Criminal law may be unconstitutional if it infringes a right or freedom protected under Charter and cannot be justified under s. 1 and a justifiable limit on the right  Section 7 and 11(d) of the Charter are particularly important to the criminal law  Section 7 provides that people cannot be deprived of life, liberty, and security of the person except in accordance with the principals of fundamental justice  Imprisonment affects security of person thus criminal law must be in accordance with principals of fundamental justice  Principals of fundamental justice support procedural fairness of criminal law to ensure accused is treated fairly  Section 11(d) protect accused’s right to be presumed innocent and to receive a fair and public hearing by an independent and impartial court Substantive Fairness (pg.7)  Criminal law or regulatory offence can be declared invalid by the courts if it results in an unjustified violation of a Charter right such as freedom of expression  Expression has been interpreted broadly to include non-violent attempts to convey meaning (thus, offences prohibiting hate literature, communication for the purpose of prostitution, defamatory libel, or pornography must be justified by government under s.1 of Charter as a reasonable limit on that right)  Principles of fundamental justice in s.7 of Charter has been interpreted as prohibiting the use of vague, arbitrary, overbroad, or grossly disproportionate laws  S.7 also prohibits punishment of morally innocent who are not at fault, as well as those who act in morally involuntary manner in dire circumstances where there was no other realistic choice but to commit the crime  This leaves the question of what constitutes as moral innocence as very complex and dependent on context  Fault requirements should generally increase with the seriousness of the offence and intentional crimes should be punished more severely than those committed negligently  A denial or restriction on defense such as defenses od intoxication, mental disorder, or duress may also violate s.7 of the Charter if it results in deprivation of liberty in manner that is in accordance with principles of fundamental justice Procedural Fairness(p.8)  Both police and prosecutor must comply with accused Charter Rights or risk have trial process diverted from issue of guilt or innocence—to a Charter Rights Case  Sections 8 and 9 of Charter protect from unreasonable search or seizure and from arbitrary detentions during investigation  S. 7 and 11 protect accused rights to trial with jury if they face over 5 years of imprisonment  Presumption of Innocense under s. 11(d) is protected  Crown must bear burden of proof that accused is guilty beyond reasonable doubt  Reasonable doubt is derived through evidence of lack thereof  Crown must go BEYOND the fact that it is probably or likely that accused is guilty The Elements of Criminal Offences (p.9) Actus Reus—act or omission that is prohibited by legislation Mens Rea—the fault element (guilty mind)  Crown must prove beyond reasonable doubt that accused committed the prohibited act AND that they had the guilty mind  Also a general requirement that the person must have had the guilty mind at the same time the prohibited act occurred (there are exceptions from this however)  The crown must prove Subject to exceptions justified under section 1 of the Charter that the accused did not have a relevant defense  A few defenses, most notable mental disorder or automatism must be established by accused on balance of probabilities even though it violates presumption of innocence. The Prohibited Act—Actus Reus(p.10)  Prohibited act depends on how court interpret words of an offense (i.e. the surpreme court has interpreted the word anything in offense of theft not to include the taking of confidential information from a computer screen—even though taking a piece of paper with confidential info WOULD be theft  The DEFINITION of the prohibited act is probably the most important policy component in criminal law  Definition of criminal act must not be so vague or broad that it fails to give fair notice to the accused  It is generally NOT AN EXCUSE that the accused did not know that what he/she was doing was illegal Attempts and Other Unfulfilled Crimes (p.11)  Criminal law intervenes even before accused has committed the criminal act required for a complete crime (i.e. person attempts to steal—charged with attempt of theft)  S. 24 of criminal code states that anyone, having an intent to commit offense, who does or omits to do anything beyond preparation IS GUILTY of attempting to commit offense  Sometimes activity that is preparatory to completing a crime is defined by Parliament as a completed crime (i.e. terrorism offenses relating to the financing and facilitation of terrorism generally applied to conduct done in preparation to commit actual crime)  A person can also be guilty of conspiracy to commit a theft if he or she had agreed with others to commit theft  A person can be guilty of counseling a crime if he/she had solicited or incited another p