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Chapter 3

Criminal Law-Chapter 3.docx

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Department
Criminology
Course
CRM 200
Professor
Graham Hudson
Semester
Summer

Description
Criminal Law- Chapter 3 The Prohibited Act, Or Actus Reus Codification of the Criminal Act(p.82)  No person shall be convicted of an offense at common law except contempt of court  To be convicted of criminal or regulatory offence in Canada, a person must do something that is prohibited by a valid statute or regulation  Even before s.9 of criminal code, and the Charter, Canadian courts were reluctant to create common law or judge made crimes on basis that they would introduce great uncertainty into administration of criminal law Strict and Purposive Construction of Criminal Law (p.84-88)  Another way of ensuring that criminal law is fixed and predetermined is to apply a doctrine that is should be interpreted or construed STRICTLY to the benefit of the accused  Reasonably doubt will be resolved in favor of the accused  Strict contraction in favor of liberty of the accused suggests that offences, BUT NOT defenses should be given a restrictive reading Strict Construction • Strict construction states that any ambiguities in legislation should be interpreted to the benefit of the accused. • Often, this requires attention to the plain or “dictionary” definition of terms. • The principle behind this is that rule is that citizens must be given fair notice and opportunity to comply with fixed and pre-determined law; any deprivation of liberty has to be justified in accordance with clear and unchanging rules. • If the scope of law changes through judicial interpretation, the law is rendered unclear and impractical as a guiding framework. R V. Mcintosh (p85)  Court invoked strict construction as a rationale for giving statutory defense of self-defense a reading that favored the liberty of the accused  Defenses can also be expanded to favour the accused by giving them broad and purposive reading  Strict construction of offences in criminal law is in some tension with modern purposive approaches to statutory interpretation  Purposive approaches acknowledge the limits of grammatical or dictionary- based purposes of a particular statute  A criminal law should be first given a purposive reading and the doctrine of strict construction is only applied if there are still reasonable ambiguities after such a broad interpretation Purposive Construction • Purposive interpretation, by contrast, takes the realization of the objective of a provision as the primary factor. • Courts are free to interpret a provision in any way that furthers the objectives of the law. • Example R. v. Pare and R. v. Russell. • Currently, courts begin with purposive construction and, if any ambiguities remain afterwards (e.g. multiple interpretations are possible), they will then go to strict construction R v. Rusell (p.87)  First-degree murder can be committed even if the underlying offence was committed against a third party and not the person murdered  Strict contruction was not relavent and all thay was necessary undere statute was that the killing was “closely connected, temporally and casually,” with an enumerated offence  It is immaterial that the victim of the killing an the victim of the enumerated offense are not the same  Courts will not resort to the strict doctrine on a light basis  Resort is only made to the doctrine is there are reasonable ambiguities in a law after it has been interpreted in a purposive manner consistent with its intent Requirements For Marked Departure and the De Minimis Defense (p.89-90) R.V.Gunning  Supreme Court suggested that the offense of careless use of a firearm required that “the conduct in question” constitute a “marked departure” from standard of care expected of a reasonable person  There is danger that applying marked departure into every criminal act will alter clear intent of legislature in defining criminal act  De minimis non curat lex is an old common law concept that looks not to punish a “mere trifle” and would allow for an acquittal of a person even if he or she were technically guilty of the actus reus and mens reas  De minimis is designed to ensure that the criminal law does not lightly brand someone with the stigma of a criminal offence (i.e. someone had minute amount of drugs, stole something of limited value ect)  De minimis doctrine has not been adopted by a majority of Surpreme Court however  Court strongly rejected De minimum defense in context of sexual assault because even mild non-consensual touching of a sexual nature can have profound implications for the complainant Unconstitutionally Vague and Overbroad Laws (p.91)  A law that is excessively vague, or overbroad because it does not give fair notice to citizens of what is prohibited, or place limits on laaaw enforcement discretion, violates s. 7 of Charter (i.e. Void of Vagueness doctrine)  Laws must of necessity cover a variety of situations  Most challenges to criminal laws as excessively vague have failed on basis that legislature should be able to use broadly worded offenses to protect environment  Criminal law often uses concept of reasonableness to accommodate evolving mores and avoid successive “fine-tuning” amendments R.v. Heywood (p.93)  Court’s unwillingness to strike down criminal laws as excessively vaugue or overbroad is its 5:4 decision  Court struck down a vagrancy provision that made it illegal for a person convicted of a sexual offense to be “found loitering in or near a school ground, playground, public park or bathing area”  Provision was held as too broad in defining prohibited conduct and did not give accused fair notice of what was prohibited  In case of vagueness, means are not clearly defined  In case of over breadth the means are too sweeping in relation to the objective  New law allowed those convicted of sexual offenses involving children to be prohibited from attending public parks or public swimming areas where children under 14 could reasonably be expected to attend Ignorance of the Law (p.94)  Criminal law has historically not allowed ignorance of the law to be an excuse to a criminal offense R.V. Molis  Supreme Court held that the principle that ignorance of the law is no excuse precluded an accused from arguing that he had a defense of reasonable mistake in believing that drugs he manufactured were not prohibited under the Food and Drug Act  The drugs in question were only recently added to the prohibited list and accused did try to determine if they were illegal or not  Given his efforts, accused would have most likely had valid defense of due diligence if he had made a factual mistake about nature of the drugs as opposed to legal mistake as to whether the drugs were prohibited under laws  Courts also rejected as excuse that the accused relied on a lower court’s judgement which wrongly held activity in questions was illegal  People rely on their own knowledge of law or even lawyers advice at their own peril (a) Distinguishing Mistakes of Law and Fact  Refusal to recognize mistake of law as a defense means that an accused could be convicted of selling obscene material even though the accused relied reasonably on a newspaper report, a case, a lawyer  If accused made mistake about the facts, as opposed to the law, then he or she would have a defense  (i.e. if vendor who believed magazine contained pictures of consenting adults, not children engaged in sexual activity, even if magazine or videos were approved by provincial film board that would not be defense because it would be mistake of law) R.v. Jones (p.96)  Supreme Court held that the accused did not have defense because they believed that they were not legally required to have provincial licence to operate a bingo on an Aboriginal reserve b) Preclusion of Mistake of Law As the Only Offense Making an Offense one of Absolute Liability (p.97)  Ignorance of law is no excuse principle, but it does somewhat mitigate its harshness by, in this one limited context, taking imprisonment away as a sentencing option  (i.e. driving with a suspended license but not knowing is was suspended because it was done without notice) c) Non-Publication (p.97)  some exceptions to principle that ignorance of law is not an excuse  a person may not be convicted of violating a law or regulation that has not been officially promulgated or published  it would be impossible for person to ascertain and comply with law not available to the public d) Mens Rea, Colour of Right and Mistake of Law (p.98)  sometimes mens rea or fault element of specific offense will be defined in a manner that can male the accused’s mistake of law a matter that will negate poof of mens rea  a person may not be convicted if the fault element required for a particular offense includes some knowledge of relevant law  a colour of right based on a mistaken belief by the accused about his or her legal entitlement to property can prevent the crown from establishing the particular fault element of theft beyond reasonable doubt  these excuses generally relate to mistaken beliefs by accused that they have a personal right or entitlement to property as opposed to more global beliefs that criminal law is invalid or beyond constitutional limits e) Officially Induced Error (p.99)  this has recently been recognized as a defense for criminal and regulatory offenses  recognized inflexible approach to rule of ignorance of law in the case where the error in law of accused arises out of an error of an authorized representative of state while at the same time the state prosecutes the accused  accused must establish defense of officially induced error on balance of probabilities and it results in stay of proceedings  both the legal advice and the reliance placed on the advice must be reasonable for accused to succeed  it has been accepted in case in which custom officially appeared to accept documentation offered at the border by protesting farmers as they left Canada to sell their wheat in USA on basis that they relied on advice of customs officials  The advice has to come from an appropriate government official responsible for administering the law  Defense has been recognized BUT restrictively circumscribed 5) Application of the Criminal Code: Territorial and Age-Based Restrictions(p.100)  Basic rule in section 6(2) of Criminal Code us that no person can be convicted for offenses committed outside Canada  Subject to various exceptions, including: war crimes, crimes committed on aircrafts, crimes in relation to dangerous nuclear materials, sexual offenses committed against children by Canadians while abroad, and crimes of terrorism  Conspiracy provision sin section 465 are also worded broadly to apply to those who conspire outside of Canada to commit a crime within Canada, and those who conspire within Canada, to commit a crime outside of Canada  Treason and torture can also apply to conduct outside Canada  S.13 of Criminal Code states no person shall be convicted of an offense committed while that person was under 12 years of age 6) Policy Elements in Definition of Actus Reus: The Case of Consent (p.101)  To emphasize the violence in sexual offenses, Parliament broadened the prohibited Act to include all intentional applications of force without consent in circumstances that were objectively sexual  ** see page 102 for when consent is NOT obtained  consent definition in code establishes as an objective statement of law that consent is a voluntary agreement to engage in the particular sexual activity and that ther
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