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SOC 227 (14)
Chapter 3

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University of Waterloo
SOC 227
Addie Nelson

Chapter 3 – Criminal Law What is a Crime? - Crime – conduct that is prohibited by law and this subject to a penal sanction (such as imprisonment or a fine) What is Criminal Law? - Criminal law – a body of jurisprudence that includes the definition of various crimes, the specification of various penalties, a set of general principles concerning criminal responsibility, and a series of defenses to a criminal charge The Sources of Criminal Law - 2 primary sources of Canadian criminal law: legislation and judicial decisions Federal Legislation and Criminal Law - Under the terms of the Canadian Constitution, the Parliament of Canada has the exclusive authority to enact ‘criminal law and the procedures relating to criminal matters’ - A crime can be defined in terms of 3 basic elements o a prohibition against certain conduct o a penalty for violating that prohibition o the prohibition and penalty must be directed against a ‘public evil’ or some form of behavior that is having an injurious effect on the Canadian public - ‘Substantive criminal law’ o Legislation that defines the nature of various criminal offenses (such as murder, manslaughter, and theft) and specifies the various legal elements that must be present before a conviction can be entered against an accused person - Criminal procedure – a body of 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 criminal justice officials o Indictable offenses  most serious penalties upon conviction of the accused o Offences punishable on summary conviction o ‘mixed’ or ‘hybrid’ offenses that may be tried either as indictable or as summary conviction offenses Federal and Provincial or Territorial Regulatory Legislation: Quasi­Criminal Law - Provincial and territorial legislation have been granted exclusive jurisdiction to enact legislation in relation to issues such as health, education, highways, liquor control, and hunting and fishing o These are different from criminal law that is reserved exclusively for the Parliament of Canada o These are not ‘real’ crime, it lacks the necessary element of ‘public evil’ - Criminal law is directed toward the control of behavior that is considered to be inherently wrong – true crimes – when an individual engages in conduct that is not only prohibited but also constitutes a serious breach of community values; as such, it is perceived by Canadians as being inherently wrong and deserving of punishment. Only the Parliament of Canada, using its criminal law power under the Constitution Act 1867, may enact a ‘true crime’ - Regulatory offences (quasi-criminal law) – arise under legislation (either federal, provincial, or territorial) that regulates inherently legitimate activities connected with trade, commerce, and industry or with everyday living (driving, fishing, etc). These offences are not considered to be serious in nature and usually carry only a relatively minor penalty upon conviction Judge­Made Criminal Law - Common law – the body of judge-made law that has evolved in areas not covered by legislation o Parliament cannot possibly provide every possibility or comprehensive definitions of every term used in the legislation that it enacts. o There is always a great scope for judicial interpretation of the Criminal Code Impact of the Canadian Charter of Rights and Freedoms on Criminal Law - Charter o Empowers judges to declare any piece of legislation to be invalid, and of no force or effect (if infringes on an individual’s Charter rights – presumption of innocent etc) The Basic Elements of a Crime: Actus Reus and Mens Rea - An accused person may not be convicted of a criminal offence unless the prosecution can prove the following beyond a reasonable doubt o That a particular event or state of affairs was ‘caused’ by the accused person’s conduct (actus reus) o That this conduct was simultaneously accompanied by a certain state of mind (mens rea) The Actus Reus Elements of a Crime - Actus reus – all the elements contained in the definition of a criminal offence – other than the mental elements (mens rea) o Three separate elements  Conduct (a voluntary act or omission constituting the central feature of the crime)  The surrounding or ‘material’ circumstances  The consequences of the voluntary conduct • E.g., assault. The Crown must establish that the accused applied force to the body of victim (conduct); that the force was applied without the consent of the victim (circumstances); and that the application of force caused bodily harm (consequences)  Consequences • Sometimes consequences is not needed  perjury • However, consequences are important o Motor vehicle causing death or bodily harm  14/10 years o ‘simple’ offence of dangerous operation of motor vehicle (no need to prove consequences)  5 years  Omission • Whether a mere failure to act (an omission) can qualify as actus reus of an offence? o Failure to act can constitute a crime only if the accused was under a pre-existing legal duty to act (e.g., parents feeding child) o No duty to rescue strangers in danger  Voluntary • Automatism – very difficult to claim successfully • the burden of proving the defense is placed on the accused person who raises it The Mens Rea Elements of a Crime - mens rea – the mental elements (other than voluntariness) contained in the definition of a criminal offence o its nature changes from case to case o mens rea is not one mental state but a combination of mental states o it is necessary to analyze mens rea in relation to the 3 elements of actus reus: conduct, circumstances, and consequences o mens rea requirement ensures that only those defendants who are morally blameworthy are convicted of ‘true crimes’ Subjective and Objective Mens Rea - subjective mens rea – the mens rea elements of a criminal offence are considered to be subjective if they are based on a determination of ‘what actually went on in the accused person’s mind’. The forms of subjective mens rea are intention and knowledge (e.g., commits incest if knowing that the another person is blood relative); recklessness(e.g., arson  throw cigarette to hay, realizing there’s a good chance haystack will catch fire, will be c
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