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CRIM 230 (44)

CRIM 230 NOTES Ch1-2.docx

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CRIM 230
Simon Verdun- Jones

CRIM 230 – CRIMINAL LAW CHAPTER 1 – Introduction CRIMINAL LAW What is Criminal Law  To enact criminal law and thereby create crimes; this jurisdiction is known as the federal criminal law power  Crime has two major elements: a. Conduct that is prohibited because it is “evil/injurious/undesirable effect on public” (can be act or omission) b. A penalty that may be imposed when probation is violated  Three classification of crime: o Summary conviction offences (Eg taking vehicle without consent, being nude in public)  Tried only by provincial judge  Max penalty 2000$ fine or 6 months imprisonment, or both o Indictable offences (Eg murder, manslaughter, sexual assault with a weapon, theft over $5000, break & enter)  More serious crime / more severe sentence  Most cases are electable: accuse can choose tried by provincial judge, superior judge alone or SC+jury o Not electable for more serious indictable, eg murder – only for superior judge+jury  Preliminary hearing: before provincial judge, to determine whether there is sufficient evidence to put accused person on trial o Hybrid offences (Eg assault, sexual assault, unlawful imprisonment, theft under $5000, fraud under $5000)  Crown’s discretion to choose tried either by indictment or by summary conviction  Most offences are hybrid, very few say can only be charged by summary conviction, although most crown choose to try by summary conviction True Crimes vs Regulatory Offences  “True crimes” o In Criminal Code or federal statues (Controlled Drugs and Substances Act)  Eg murder, sexual assault, fraud, robbery o Offender seriously infringed basic community values  thus is morally culpable o Consequences are far more severe  “Regulatory offences” o In “quasi-criminal law”, but may arise under both federal and provincial or territorial legislation.  Eg such as engaging in trade and commerce, advertising, and driving on highways o Directed toward the control of activities that are considered by the majority of Canadians to be inherently lawful (selling food, driving a motor vehicle or placing ad in a newspaper) o Merely impose penalties (usually financial) on those whose conduct falls below a standard of reasonable care. This standard has been established in order to protect all Canadians from the potentially harmful consequences of inherently legitimate activities that are carried out in a negligent manner. Criminal Law as a form of Public Law  Law = “the collection of rules and principles that govern the affairs of a particular society and that are enforced by a formal system of control (courts, police, etc.).”  Public law = concerned with issues that affect the interests of the entire society. o Criminal law is considered to be part of public law because the commission of a crime is treated as a wrong against society as a whole o It is the Crown (as opposed to the victim) which prosecutes criminal cases on behalf of all Canadians.  Private law = concerned with the regulation of the relationships that exist between individual members of society. o Ownership of property, contracts, torts SOURCES OF CRIMINAL LAW Federal Legislation  Fed has exclusive jurisdiction over criminal law and criminal procedure  “Criminal law” consists of a prohibition of a certain conduct and a penalty for violating that prohibition, directed towards a “public evil” or “a public purpose which can support it as being in relation to criminal law.”  Major federal statutes enacted: the Criminal Code; the Controlled Drugs and Substances Act; and the Youth Criminal Justice Act.  Criminal code  has o Substantive Criminal Law: Legislation that defines the nature of various criminal offences and specifies the various legal elements that must be present before a conviction can be entered against an accused person o Criminal Procedure: Refers to legislation that specifies the procedures to be followed in the prosecution of a criminal case and defines the nature and scope of the powers of the criminal justice officials Provincial Legislature & Quasi-Criminal Law  section 92 – “interalia” property/civil rights in the province & “generally all matters of a merely local or private nature”  section 92(15), may enforce their laws by “the imposition of punishment by fine, penalty or imprisonment.” o However they are not ‘real’ criminal law, rather is ‘quasi criminal law’ – thus do not infringe on the federal’s exclusive jurisdiction in this field. o Regulatory offences also exist in federal statues – eg Competition Act, Food and Drugs Act, Trade Marks Act Judicial Decisions  Common Law  Judicial decisions that either interpret criminal legislation or expound the “common law.”  Common law = body of judge-made law that evolved in areas not covered by legislation o Eg contempt of court  Section 9 of the Criminal Code prohibits Canadian judges from creating new common law offences.  However, section 8(3) preserves any common law “'justification,” “excuse,” or “defence” to a criminal charge, except in so far as they have been altered by, or are inconsistent with, any legislation enacted by the Parliament of Canada. Impact of Charter of Rights and Freedom on Criminal Law  Charter empowers judge to declare any piece of legislation invalid if it infringes upon an individuals’ protected rights o Eg Morgentaler – violate s7 life liberty security  Rights are not absolute  legislature can use section 1 to impose “reasonable limits” on such rights  Led to Oakes test  Specific test for the purpose of identifying the factors that should be considered when the courts attempt to decide whether the violation of a Charter right is justifiable as a “reasonable limit”  with a o (i) sufficiently important legislative objective  concerns which are pressing and substantial o (ii) the means chosen by the legislature are “reasonable and demonstrably justified” in the sense that they are “proportional” to the objective of the legislation.  Rational connection / Minimal impairment / Proportionality  A declaration of invalidity is a measure of last resort. o Reading down = court rules that a statutory provision must not infringe rights o Reading in = court adds words to a statue so that it is consistent with charter o The courts must be respectful of the role of Parliament and consider whether any of these options would be more or less intrusive than an order striking down the legislation. CHAPTER 2 - The Actus Reus Elements Introduction  An accused person may not be convicted of criminal offence unless the prosecution can prove beyond a reasonable doubt  o That particular event or state of affairs was caused by the accused’s conduct (actus reus) o That this conduct was accompanied by a certain state of mind (mens rea)  “Actus non facit reum nisi mens sit rea” = an act does not render a person guilty of a criminal offence unless his or her mind is also guilty o Mens Rea  the mental elements of an offence o Actus Reus  all the other elements of the offence that must be proved by the Crown beyond a reasonable doubt Three Elements - 3 separate elements of the actus reus of a criminal offence 1. Conduct  a voluntary act/omission constituting the central feature of the crime 2. Circumstances  the surrounding and “material” 3. Consequences of the voluntary conduct Example: Assault  Assault (265 (1a))  “ without the consent of victim, he applies force intentionally to that victim directly or indirectly  Assault causing bodily harm (267)  “uses weapon or causes bodily harm to complainant” o Bodily harm = injury that interferes with the health/comfort of victim, that is more than merely transient or trifling in nature o Does bodily harm include psychological harm? A case involving threats of sexual assault  according to SCC, psychological harm may o
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