Categories of Crimes

1. Categories of Crimes There are 3 types of offences in Criminal Law. The type will determine: the powers of arrest, the rights of the accused, how the trial will proceed and the penalty that will be imposed.

2. 1. Summary: • This is a fairly minor offence tried summarily (or immediately), without a preliminary hearing or a jury. Penalties vary from small fines to imprisonment. All provincial offences are summary. Maximum penalties vary. (Criminal Code = $2000 and/or 6 months; Narcotic Control Act = $2000 and/or 1 year for possession of narcotic)

3. 1. Summary: • Ex. Section 175 (1) Everyone who • not being in a dwelling-house, causes a disturbance in or near a public place • by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, • by being drunk, • by impeding or molesting other persons • is guilty of an offence punishable on summary conviction

4. 2. Indictable: • This is a severe criminal offence, for which the crown proceeds by indictment; carries a more severe penalty. For example the Criminal Code sets a maximum penalty for each offence (discretion of the judge) • Ex. Section 235 (1) Everyone who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

5. 3. Hybrid: • An offence that is punishable as an indictable or summary offence at the option of the crown. Hybrid offences are treated as indictable ones until the charge is laid in court so the accused must appear even though it may proceed summarily. • Ex. Section 266 (1) Everyone who commits an assault is guilty of • an indictable offence and is liable to imprisonment for a term not exceeding five years; or • an offence punishable on summary conviction.

6. The Elements of Crime: • Each crime is made up of 2 parts. The physical part is called actusreus (Latin for “guilty act”) • and the mental part is called the mens rea (Latin for “guilty mind) • The 2 elements must exist at the same time to commit a crime. (If I intend to run you over with my car today – mens rea – and then do it accidentally tomorrow – actus reus – criminal liability does not result)

7. 1) The Physical Element: Actus Reus • The actus reus can involve: • A wrongful action. Ex. S.348 C.C. Break and Enter • A failure to act or an omission (but the act must be voluntary or done by choice) Ex. Failure to provide your child with necessities. • A state of being. Ex being in possession of stolen property or of illegal drugs OR being in possession of break-in instruments under certain circumstances.

8. 2) The Mental Element: Mens Rea • We do not punish people who are not mentally responsible for their actions. • Two kinds of mental states will make a person mentally responsible (so that mens rea exists): • Intent or Knowledge • Reckless or Wilful Blindness

9. Intention • Intent refers to the accused’s state of mind. Did he/she desire to carry out a certain action and could he/she foresee the results of the action. • Whether or not someone had intent is based on the facts, and on what a reasonable person would be thinking in the circumstances. (Obviously the accused will say he/she did not intend to commit the wrong so intention will not be determined on what he/she says after the fact!)

10. Intent • The intent required to commit an offence can be either general intent or specific intent: The wording of an offence in the criminal code tells you the level of intent required to be found guilty. Some offences require general intent and others require specific intent.

11. General Intent(fairly simple crimes) -The intent to perform a forbidden act Example: assault, manslaughter, trespassing at night - Assault: If John strikes David intentionally it is assault; if John strikes David accidentally, it is not intentional and not assault. - Manslaughter: If a frustrated hockey player strikes an opponent with his stick to “send him a message” but the player dies the accused will be found guilty of manslaughter (a general intent offence) and it would not be necessary to prove he had intent to kill. -Trespassing at night: if the crown has proven that the accused was on someone else’s property at night, the intent to be there is inferred (presumed) Specific Intent (require more complicated state of mind) - The intent, not only to perform a forbidden act, but also to bring about a specific result. Ex. Murder or Break and Enter - Murder: If John strikes David intending only to blacken his eye but kills David, he will not be guilty of murder: while John intended to strike David he did not intend to kill him. -Break and Enter: This offence requires an intentional unlawful action (breaking and entering a place), which is committed with the intent to commit a further specific action (theft, an indictable offence) Intent

12. 1) Knowledge • -Knowledge of certain circumstances can provide the necessary mens rea for an offence. Example: • 1. Perjury – giving false evidence about something you know (=crime) • 2. Every one who uses a credit card that he/she knows has been revoked or cancelled is guilty of an offence. (It is only necessary to prove that the person had used the credit card and that he/she knew it was revoked. NO proof of intent to defraud any person is required.) • -BUT – You cannot escape responsibility for criminal conduct by claiming that you thought your conduct was legal. Section 19 C.C. states: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

13. 2Criminal NegligenceRecklessness and Willful Blindness = can provide the necessary mens rea, • - Sometimes a person can be charged with a crime for acting recklessly. • - Recklessness is defined as the taking of a risk where the result of the action – committing a crime – is foreseeable. (They can see that the consequences of their conduct may be harmful but decide to take an unjustifiable risk anyway.) • Criminal Negligence –Wanton or reckless disregard for the lives and safety of the others ,sometimes causing serious injury or death( leaving loaded weapons around the house unattended)

14. Willful Blindness: • -Willful blindness results when a person has become aware of the need to make some inquiry , but he or she does not make the inquiry because he or she does not wish to know the truth.( buying an object which is obviously belongs to somebody else)

15. Strict Liability and Absolute Liability Offence • All “true” criminal offences require one of the types of mens rea. These offences also have a moral fault attached (like murder or theft). • However there are many federal and provincial offences (not found in the criminal Code) that do not require mens rea.

16. Definition: • Strict Liability and Absolute Liability Offences are offences passed for the protection of the public health, welfare and safety rather than to punish offenders. The prosecution has to prove only that the accused committed the actus reus of the offence. These offences carry lesser penalties.

17. Strict Vs. Absolute Liability (court decides) • Strict: The accused can use the defense of “due diligence” (he/she took reasonable care or believed a mistaken set of facts) • Absolute: The accused cannot use this defense. Examples: • provincial traffic laws • laws to protect workers • environmental protection laws • laws prohibiting sale of impure foods

18. Attempts • It is an offence to try to carry out a crime even if the crime is not completed. The accused must have done more than prepare for it. The accused must have the intent to commit the offence and must have done or not done something directly connected with the crime.

19. Attempts • - Preparation stage: buying housebreaking tools and recording the comings and goings of the house. • - “Attempt” mens rea: is demonstrated by his steps to break in and having the break-in equipment (shows intent to attempt to commit the break-in) • It is always the judge who decides when the preparation stage ends and the attempt stage has begun.

20. Conspiracy • An offence is committed when two or more people agree to carry out an unlawful action. Jokes or threats not intended to be taken seriously are not considered conspiracy (there must be serious intention). Whether or not the action is ever carried out does not matter.

21. Parties to an Offence • Principal Actor - The person who actually committed the AR and had the MR of the offence • Aider and Abettor -A person who encourages and helps someone to commit an offence. He/She had to have knowledge that the other intended to commit an offence. Merely being at the scene is not conclusive evidence of aiding and abetting • Accessory After the Fact- A person who helps a person who has committed an offence to escape detention or capture. (includes providing food, clothing and shelter). This is a separate offence.

22. Rights of Accused • -The right to remain silent is based on 2 principles: • 1. presumption of innocence • 2. Everyone has the right not to incriminate him/herself • - Until a person is arrested, that person does not need to answer to police questions or go to a police station. • Exemptions: -Spot checks for drunk drivers -Provincial traffic laws allow police to ask for drivers license, vehicle registration and proof of insurance

23. Rights of an Accused • -Police are entitled to ask questions to further an investigation. These questions fall into 2 categories: • 1) Those who can provide info and who may be witnesses • 2) Suspects from whom incriminating statements may be sought • -Once the police reach a point where they feel reasonable grounds exist to believe a certain person has committed an offence, that person should be cautioned that: • 1) he/she may be charged • 2) the nature of the offence • 3) he/she need not say anything • 4) that whatever is said will be taken down in writing and may be given in evidence at trial. • -re. Cooperating with police: despite the right to remain silent, a person may want to identify him/herself

24. Police Force if a Person Resists Arrest • -Police can use as much force as is necessary to prevent escape • -Force that is likely to cause death or grievous bodily harm can be used if it protects others from death or bodily harm. • - Deadly force can also be used if suspect flees in order to escape arrest and no other less violent means exist to prevent escape.

25. Getting the Accused to Court • Suspicion is not enough cause for an arrest to be made. The officer must determine that an offence has been committed and have reasonable grounds to believe that the suspect committed the offence. • The powers of the police are sometimes determined by the type of offence involved: Summary, Indictable and Hybrid.

26. The police have 3 ways to bring an accused to court:

27. The police have 3 ways to bring an accused to court

28. Arrest Without a Warrant • A police officer can arrest without a warrant if there are reasonable and probably grounds to believe that a person: • 1) –Has committed a • - Is committing An indictable offence • - Is about to commit • 2) Is committing a summary offence • - So, the only time police can arrest without a warrant for summary offences is if a person is committing it.

29. Detention: • The Charter of Rights gives everyone the right not to be “arbitrarily detained or imprisoned” (section 9 – must have just cause) and the right on arrest or detention to be informed promptly of the reasons therefore and to retain and instruct counsel without delay and to be informed of that right. (Section 10)

30. Detention: • Being detained is different from being arrested. The Supreme Court of Canada said that there are 3 ways a person can be detained: • 1) Physical Constraint – Holding a person back in some way. • 2) Psychological Means – Making a person believe that he/she has no choice but remain in a certain situation. • 3) Control over a person gained by giving a demand or direction where there will be legal consequences if the person refuses a demand.

31. Detention • - So, if a person is asked to go to the police station and consents, believing that there is no other choice but to submit, detention exists. So : the person must be informed of reasons for detention and must be advised of retaining counsel. • - A person who goes voluntarily, however, is not being detained and need not be so advised. • - If police persist in questioning, detains or attempts to search a reluctant individual, that person should immediately counsel, get badge # and witnesses.

32. Powers of Search With a Warrant • In most cases the police must have a warrant to search a place. A search warrant is usually issued by a justice of the peace • The warrant must name the thing being sought. However, the police can seize other things that they believe have been used for or obtained in committing the offence.

33. Powers of Search With a Warrant • (The search can only involve searching those areas and items outlined in the warrant unless other illegal items used in or obtained in the commission of an offence are in plain view or are found while carrying out the terms of the warrant. • The search of a residence must be done on the day indicated on the warrant between 6am and 9pm unless otherwise indicated.

34. Powers of Search With a Warrant • -Police should demand to be admitted ** • -If permission is refused or no one is home, police can break in (liable for excessive damages) • -Person can ask to see warrant and if it is not all correct can then refuse entry. • -Once inside, the police can only search a person after the arrest, unless they believe that the person possesses illegal drugs, liquor or weapons. • ** Not always necessary to give notice of arrival. When surprise entry is needed (drug raid) but need to have warrant for residence.

35. Without a Warrant • -Police can search without a warrant • -any person they have arrested (or any place under the arrested person’s control, such as the person’s car or house) • -any person and any place the police suspect has committed certain offences • -illegal narcotics • -illegally keeping alcohol (illegal alcohol for unlawful purpose) • -customs • -hunting