CRIMINAL LAW – an Introduction

What is Criminal Law? Public law that declares acts to be crimes and prescribes punishments for those crimes

Who has jurisdiction over Criminal Law? Provincially and municipally, there are QUASI-CRIMINAL LAWS, which are laws that cover less serious offences that are often punishable by fines, such as traffic and liquor related offences; Federally, the majority of criminal laws are passed by Parliament and can be found in the Criminal Code of Canada. Other federal laws can be found in the Controlled Drugs and Substances Act, the Youth Criminal Justice Act, and the Food and Drug Act, for example. Since criminal law is controlled by the federal government, it applies to ALL of Canada (unlike the United States, where criminal law, particularly punishments for crimes, is regulated by each individual state. This makes it possible to commit the same crime in 2 different states and be punished differently depending on which state you are in).

Functions of Criminal Law Helps keep order in society; To enforce moral standards based on the norms and beliefs of Canadians; Helps deter people from committing crimes; Protects people from harm to themselves or their property; Punishes people for their wrongdoings (retribution – punish the prohibited act by “paying back society” and balancing the scales of justice); Rehabilitates or helps those who have already harmed society and reintegrate them back into society.

What is a Crime? An act or omission of an act that is prohibited and punishable by federal statute (law) Decided by Parliament; All crimes and their punishments in Canada can be found in the Criminal Code and other federal statute; The Criminal Code is a reflection of society’s values – it changes as society’s values shift and the public pressures the government to do so.

For an action to be considered a crime, the following conditions must exist: The action or behaviour must harm other people individually or society as a whole; The action must violate the basic values of society (must be considered immoral, or wrong, by most Canadians); The harm caused by the person’s actions must be serious; The person must be punished by the criminal justice system for his/her actions; Using the law to deal with the action must not violate the basic values of society; Criminal law can make a significant contribution to resolving the problem.

Actus non facitreum nisi mens sit rea – “the act will not make a person guilty unless the mind is also guilty” Actus Reus and Mens Rea
THE ELEMENTS OF A CRIME

The Criminal Code Equation For an offence to be considered a crime, two elements must exist: ACTUS REUS (the physical element, or guilty action) and MENS REA (the mental element, or guilty mind). ACTUS REUS + MENS REA = A CRIME

ACTUS REUS Latin for the guilty action or deed; Voluntary Action: i.e. if you argue with someone and then punch them in the face, you have committed the criminal act of assault (punching them in the face was an action you chose, or voluntarily, committed). Omission: failing to do something, i.e. leaving the scene of an accident, or failing to provide the necessities of life, are both considered to be crimes. State of Being: i.e. being in the possession of something illegal or being somewhere illegal, such as a betting house or a bawdy house.

MENS REA Latin for “a guilty mind”; includes: KNOWLEDGE, INTENT, RECKLESSNESS, and WILLFUL BLINDNESS - the act was intentional and the accused knew it was wrong, was negligent, reckless, or willfully blind. Can be established by showing that the accused had the intent to commit the offence or knowledge that what he/she did was wrong.

MENS REA - INTENT The true purpose of an act; a state of mind in which someone desires to carry out a wrongful action, knows what the results will be, is reckless regarding the consequences, or should have foreseen the results of the wrongful act. For example: George punches Mark in the face and ends up killing him. George would be guilty of manslaughter because he intended to cause Mark harm (it doesn’t matter that he only intended to harm him, the result of his action was that he killed him). Some people, i.e. people with mental disorders, minors, infants, and those under the influence of alcohol or drugs, by law are considered incapable of forming the intent necessary to commit an offence.

INTENT IS NOT THE SAME AS MOTIVE! MOTIVE is the reason for committing an offence, but does NOT establish the guilt of the accused and is NOT the same as intent. INTENT refers to that person's state of mind and willingness to break the law.

INTENT CONTINUED... There are 2 kinds of intent; the type of intent varies depending on how the crime is defined in the Criminal Code: 1. General Intent – The desire to commit a wrongful act, with no ulterior motive or purpose. For example, if Josh strikes Scott because he is angry with him, he has the general intent to commit the assault. To establish mensrea, the Crown just needs to prove that Josh struck Scott. 2. Specific Intent – The desire to commit one wrongful act for the sake of accomplishing another. For example, if Josh strikes Scott with the intent of stealing his wallet, he has the specific intent to commit a robbery. To prove mensrea for robbery, the Crown would have to prove that he not only assaulted him, but he did so with the specific intent of stealing from him.

Significance of the different types of intent: General intent is easier to prove, i.e. manslaughter (unintentional homicide) is easier to prove than murder (intentional, planned and deliberate homicide). Some defences are more likely to succeed against specific intent offences, i.e. intoxication. If you are extremely intoxicated and you break into a store and knock out the security guard, you could be charged with break and entering with the intent to commit robbery. You could plead not guilty due to intoxication, and the judge might rule in your favour, citing that you were too impaired to be able to form the necessary intent to actually commit the robbery.

MENS REA – KNOWLEDGE (having a criminal state of mind) The awareness of certain facts, i.e. knowing what you are doing is illegal, that can be used to establish the necessary mensreafor a conviction. ignorance is not allowed as an excuse for committing an offence. For example, if you use a stolen credit card, the Crown only has to prove that you used the credit card.

MENS REA - RECKLESSNESS and WILLFUL BLINDNESS RECKLESSNESS acting carelessly without regard for the consequences of your actions. You may not intend to harm someone, but if you understand the risks and proceed to act anyway, mensreawould exist. i.e. reckless driving. WILLFUL BLINDNESS The act of deliberately choosing to ignore certain facts or information results when a person is aware of the need for some inquiry but declines to make the inquiry because he/she does not wish to know the truth. i.e. if Kianja is offered $100 to deliver a package a couple of blocks away for Cameron, a known drug dealer, but she does not ask what is in the package, she could be charged and convicted of drug trafficking.

MENS REA – CRIMINAL NEGLIGENCE Wanton and reckless disregard for the lives and safety of other people; If a reasonable, objective analysis were made, and the act would carry the risk of harm, then the person is negligent. i.e. the Tutton case (parents did not provide medical treatment needed for son to live) – negligence was criminal because it resulted in the death of their son.

OFFENCES WITHOUT MENS REA Some offences called “regulatory offences” do not require proof of mensrea They: Are set up for the general protection of the public rather than to punish offenders; have lesser penalties; Do not carry the stigma associated with the conviction of a criminal offence. The courts must decide with what type of offence they wish to proceed. These types of offences include speeding and polluting the environment, and are classified as either STRICT or ABSOLUTE LIABILITY offences

STRICT LIABILITY OFFENCES Only require proof that the act was committed for a conviction; the accused can claim the defence of DUE DILIGENCE - that he/she took care not to commit the offence or honestly believed in a mistaken set of facts that would have rendered the act or omission innocent, if they were true.

ABSOLUTE LIABILITY OFFENCES due diligence is not accepted as an excuse - if the accused committed the actusreus, he or she is guilty no matter what. little opportunity for any defence, and are in place to protect the public. Because there is little opportunity for a successful defence, the Supreme Court of Canada ruled that a prison term was unconstitutional for any absolute liability offence.

INCOMPLETE CRIMES These are crimes where the actusreusand mensreamight not exist. Includes ATTEMPT and CONSPIRACY

ATTEMPT someone who attempts but fails to carry out an intended crime is still considered to be a danger to society. an attempt requires proof that there was intent to commit the offence The actusreusbegins at the moment preparation turns into some step towards committing the offence. The Crown just has to show the accused had the necessary intent and took some obvious steps towards committing the crime. For example, in a terrorist bombing, if the actual bombing doesn’t take place, it is considered an attempt if the bomb has been constructed.

CONSPIRACY an agreement between two or more people to carry out an unlawful action, or to perform a lawful action by unlawful means. Occurs even if the act does not actually occur and even if the parties involved changed their minds or don’t get the opportunity to actually commit the act. must be serious intention by both parties - jokes or threats don’t count penalty is generally the same as for the offence that was the object of the conspiracy.

ASSIGNMENT: Read the cases on the handout provided and for each case: State the actusreus (if it exists); State the mensrea (if it exists); State whether or not you would find the accused guilty or not guilty, and explain why (briefly). R. v. Collins and French, page 127 R. v. Williams q. 1 – 4, page 128

CRIMINAL OFFENCE CLASSIFICATION

It is important to know how to classify an offence because it determines: The power of arrest for a citizen or police; The rights of the accused; How the trial will proceed (in which court); and, What penalty will be imposed.

CLASSIFICATION OF CRIMES SUMMARY CONVICTION OFFENCES INDICTABLE OFFENCES HYBRID/DUAL PROCEDURE OFFENCES

1. SUMMARY CONVICTION OFFENCES Minor offences for which an accused can be arrested or summoned to court without delay (tried without a preliminary hearing or jury); Includes all provincial offences i.e. Traffic violations; Penalties range from small fines to imprisonment; Maximum penalty is $2000 fine and/or 6 months in prison Charges must be filed within 6 months of the offence

2. INDICTABLE OFFENCES Severe criminal offences, such as murder; The Crown proceeds by indictment (press charges); Severe penalties are imposed at the discretion of the trial judge, based on the Criminal Code; Some crimes have a minimum penalty that must be adhered to. There is no statute of limitations (time limit in which to take action) for indictable offences

3. HYBRID OFFENCES (DUAL PROCEDURE OFFENCES) Offences that are punishable as both an indictable offence and summary conviction offence; The Crown decides how to proceed – either by indictment or summarily; Hybrid offences are always treated as indictable until the Crown formally decides, or elects to proceed summarily. First time offences are usually treated as summary conviction offences, depending on the nature of the crime

HYBRID OFFENCE EXAMPLE: THEFT If the value of the stolen goods is over $5000, the offence would be an INDICTABLE offence; If the value of the stolen goods is under $5000, the offence would be a SUMMARY CONVICTION OFFENCE.

ASSIGNMENT Read pages 121 – 123. Complete Review Your Understanding questions 2 – 5 on page 123.

PARTIES TO AN OFFFENCE – WHO IS INVOLVED IN A CRIME? THE PERPETRATOR The person who actually commits the offence; If there is more than one – "co-perpetrators"; To be a perp. or co-perp., you must actually be at the scene of the offence.

Those people who are indirectly involved in committing a crime because they have somehow assisted the perpetrator in committing the offence are also considered “parties to an offence”. They include: AIDING: linked to a crime by assisting a perpetrator. You do not have to be present when the offence is committed to be found guilty of aiding. ABETTING: encourages the perpetrator of a crime without actually providing physical assistance. You must be aware that a criminal action was intended and must have committed some action that assisted the perp. Two things must be proven to be convicted for aiding and abetting: The accused knew there was intent to commit a crime The accused aided and abetted the other *Mere presence at the scene is not evidence of aiding and abetting – it must be accompanied by other factors, such as prior knowledge of the perp's intentions to commit the offence.

The Counsellor An individual who advises, recommends, or persuades another person to commit an offence. *It is possible for the counsellor to be guilty and the principle actor to not be guilty (i.e. an adult who sends a child to do something) The Conspirator One of two or more persons who work together to plan a crime The Procurer An individual who obtains plans, details, items or persons to commit or assist in the commission of a crime The Accessory Any person who renders aid or encouragement to a perpetrator. This person is not directly linked to the crime as a principle actor but continues to play a part in the crime’s execution; prior to or during the crime. The Accessory after the fact Any person who knew that someone was involved in an offence and then provided comfort, aid, or a means of escaping from the police. * If a person helps their spouse escape they are not considered an accessory after the fact *A married woman is not considered an accessory after the fact if she helps her husband and his partner escape provided that husband has authorized her to help his partner Party to Common Intention The shared responsibility among criminals for any additional offences that are committed in the course of the crime they originally intended to commit. For example, if 6 people hijack a truck and one of them shoots and kills the driver, all six can be charged with murder.

ASSIGNMENT Read pages 131 – 133 of the text and complete the following: R. v. Goodine, page 131 R. v. Lindsay, page 133 q. 1 – 4. Review Your Understanding, page 133 q. 4, 5.

CRIMINAL LAW – an Introduction