Law 12

1. Law 12 Unit 3 –The Criminal Code (A).

2. Content: Introduction (5.1) Violent Crimes (5.2) The Criminal Code

3. Introduction – The Criminal Code • Criminal code • Reflects the social values of Canadians • Federal statute • Main body of criminal law • Offences listed and described precisely • To ensure people are not arrested on a criminal charge if they are involved in non-criminal matter • To ensure someone is not set free on a technicality

4. Criminal Code Incidents (2000) 24 million Criminal Code incidents 301,875 Violent incidents Introduction – The Criminal Code cont. Other 3% Sexual Assault 8% Robbery 9% Assault Level 2,3 15% Violent Incidents Other 34 % Violent Incidents 13% Assault level 1 65% Property 53%

5. Violent Crime In Canada (2007) Homicide Rates (2000)

6. Homicide in Canada

7. Violent Crimes 5.2 • Harm to the human body. • Historically a part of criminal law (Code of Hammurabi) • About 13% of all criminal code offences are of a violent nature. Including: • Homicide • Assault • Sexual offences • Abduction • Robbery

8. Killing another human being, directly or indirectly, is homicide It’s a criminal offence if it’s culpable (deserving of blame) Murder, manslaughter, and infanticide Homicide homicide Culpable homicide non-culpable homicide Accident Self- defence murder manslaughter infanticide First degree Second degree • Non-culpable homicide is not criminal and occurs when death is caused by complete accident or in self- defense

9. Intentional killing of another person- although can be charged without intent Murder • First degree • This is planned &deliberate (considered consequences) • Victim is in law enforcement • Offense occurs offensive crime is being committed • Max Penalty … Life with no parole for 25 years • Second degree (intentional murder yet does not fit into any of the above categories • The deliberate murder of a human . Not Planned • Max Penalty … 25 years with no parole for 10 years • Causation: Cause of death. Necessary to prove causation in order to convict a person of first-degree murder • Crown must prove that the accused actions resulted in a substantial cause of death in the victim

10. Manslaughter • Causing death of a human, directly or indirectly, by means of an unlawful act • Not murder rather it requires only general intent Example: Speeding down a road, crash into a little old lady and kill her. • The mens rea - a reasonable person would recognize that the unlawful act could physically harm or kill the victim. • 0-25 years

11. Manslaughter continued • When someone charged with murder is convicted of manslaughter • Provocation: In the heart of passion (caused by provocation) • Provoked by a wrongful act / insult, • Must be something that would cause an ordinary person to lose self-control (excepting drug / alcohol) • Intoxication: (affects the person’s ability to predict the consequences of their actions • Crown must prove both the killing and the necessary intent if the accused uses the intoxication defence

12. Manslaughter continued The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind • Voluntary Manslaughter • occurs when the defendant kills with malice (intention to kill or cause serious harm), but there are mitigating circumstances which reduce culpability • or when the defendant kills only with an intent to cause serious bodily harm

13. Manslaughter continued • Involuntary Manslaughter • is the unlawful killing of a human being without malice (intent). It is distinguished from voluntary manslaughter by the absence of intention. • constructive manslaughter • It occurs when someone kills, without intent, in the course of committing an unlawful act • criminally negligent manslaughter • an omission to act when there is a duty to do so which leads to a death

14. Killing of a newborn by his or her mother Accused not yet recovered from the effects of child-birth and is suffering from depression or mental disturbance (possibly hormones) Max sentence: imprisonment 5 years Charges seldom seen before the courts Infanticide

15. Suicide and Euthanasia • Offence to counsel anyone to commit suicide or to help them accomplish the deed • Until 1972 – offense to commit suicide • Assisted Suicide – a controversial issue

16. Euthanasia • Mercy killing: A person acts to end another person’s life • Assisting a suicide • Voluntary euthanasia – When you help a terminally ill person (whom has expressed a wish to die) end their life • Involuntary euthanasia -When you help a terminally ill person (whom has expressed a wish to die) end their life

17. Agenda • Pass In: Flashpoint Assignment • R. v. Kerster Page 151 • Samples of Infanticide and Murder 2 • Is it Manslaughter or Murder? • R. v. Turner p.229 • R. v. Ewanchuck p.232

18. Murder or Infanticide? • Vancouver (2014) • Sarah Leung gave birth twice (over the course of 2 years) in the bathroom of her parent’s home. • She killed the babies both times • Upon giving birth she wrapped the newborns in a bag and disposed of them. • The first body was discovered by her father, the second was never actually found.

19. Contd. • Her boyfriend, a visiting student from China named Anson Lin, was excited to become a father, the court heard, though Leung hid her relationship and the pregnancy from her parents. • Leung told police she was panicked by the fear of disappointing her traditional Chinese family. She apologized in court and said she felt "unbearable sadness" for what she had done. • She later told investigators she was afraid of being disowned for contradicting her family's values, in particular for having sex outside of marriage. …….. • She delivered the baby into the toilet, the trial heard. She cleaned up and put the baby in a plastic bag, though it remains unclear whether the newborn was alive or dead.

20. Police soon used DNA testing to determine the baby was Leung's. As she was investigated for the baby's death, Leung became pregnant again. • During that pregnancy, her parents knew about her relationship. But they did not know about the second pregnancy, nor did they know Leung and Lin had married in secret. • In March 2010, she again experienced pain early one morning, and for the second time delivered the baby into a toilet. She wrapped the baby in plastic and disposed of the bag in a garbage bin. The body was never found. • Leung was arrested later that month.

21. What should she be charged with?1st degree murder2nd Degree murderInfanticide

22. She was initially charged with two counts of second-degree murder, but a jury convicted her of the lesser charge of infanticide. • The judge noted the conviction means the jury believed that while Leung intended to kill the infants, her mind was disturbed when she did so. The Criminal Code says the infanticide defence is open to a woman who "is not fully recovered from the effects of giving birth to the child. End Result…

23. Sentencing… • The maximum sentence for infanticide is five years, compared with life for murder. Because the sentences for two counts were imposed consecutively, the maximum sentence Leung could have faced was 10 years. • The Crown argued for an eight-year sentence, while the defence asked for three years. • Humphries sentenced Leung to 18 months for the first baby's death and 42 months for the second. After credit for time in pre-trial custody, the total sentence is just under five years.

24. Murder or manslaughter?

25. Toronto Police Lethal Force (2015) • Constable James Forcillo discharged his weapon on an 18 year old high school student (Sammy Yatim) on a streetcar in Toronto. • Mr. Yatim boarded a westbound streetcar on Dundas Street shortly before midnight. For about 10 minutes, he sat quietly and then suddenly unzipped his pants, exposed his penis and pulled out a 10-centimetre switchblade. Mr. Yatim swung the knife in “an arc motion” in front of a female passenger. “The knife did not touch the woman and she was not cut and not scratched Is this a crime?

26. Contd. • The streetcar driver immediately stopped the vehicle and opened the door for people to get off. He then engaged in a conversation with Mr. Yatim, who wanted a phone to call his father, the Crown said.  • The first officers on the scene after passengers called 911 were Constable Forcillo and his partner. Within seconds, four others arrived.  • Constable Forcillo, outside the door of the vehicle, drew his weapon and demanded the young man drop his knife. Mr. Yatim refused, and mocked police.

27. Contd. • “This standoff between the defendant Forcillo and Sammy Yatim lasted less than 50 seconds,” the Crown said. • The officer discharged his weapon three times after Mr. Yatim took a step forward in the streetcar. One of the first three shots, which struck Mr. Yatim in the heart, was the cause of death. Another shot from the initial volley severed his spine and left him paralyzed on the floor of the vehicle. About five seconds later, the officer fired six more shots, five of which hit Mr. Yatim in the area of the groin. • Constable Forcillo will testify at the trial in his defence. And he will explain that he believed that in the instant before he fired his weapon, Mr. Yatim had a “tough guy, bring-it-on approach, with an angry look on his face

28. Murder or manslaughter? Why?

29. Result… • Constable Forcillo is on trial on charges of second-degree murder and attempted murder in the death of Mr. Yatim. • Crown attorney Milan Rupic said the “fundamental issue” for the jury is to decide whether the officer had “reasonable grounds” to use lethal force. • “The Crown intends to prove beyond a reasonable doubt that the shooting of Sammy Yatim was not necessary and it was not reasonable,” Mr. Rupic said.

30. Challenge: 15 mins • Can you find a case in the news (either present of past) that could be murder or manslaughter? • The judgment may have been made, but when you present the facts to the class what would they make of it? Process: • Search major newspapers for manslaughter cases. • Reference your notes for the reasons behind the charge. • Present the case to the class without giving away the charge or the judgment.

31. R. v. Turner p.229R. v. Ewanchuck p.232

32. Violent Crimes continued

33. Assault • C. Criminal Code has recently amended it’s laws on assault due to societies growing concern. • Defined as”applying” intentional force to another person directly or indirectly without consent. • Key to assault → Intent. If the action is the result of carelessness or reflex, rather than intent → no assault • A threat can be an assault if there is an ability to carry it out at the time it is made

34. Serious assault (levels 2 and 3), police-reported rate, 1983 to 2009

35. Assault continued • 3 Levels of Assault Level 3 - Aggravated Assault Level 2 – Assault Causing Bodily Harm Level 1 - Assault

36. Assault 1 • Applying intentional force to another person, either directly or indirectly, without that person’s consent • Attempting or threatening, by an act or gesture, to apply force • Approaching or blocking the way of another person, while openly carrying a weapon or an imitation of a weapon • Harmful words – not an assault if not accompanied with a gesture • Consent not necessarily given because someone participates in an activity • Olympic Boxer – consents to being hit with gloved fists, not to being bitten, kicked or eye-gouged. • Hockey player

37. Assault 2 – Causing bodily harm • When someone, while committing assault, carries, uses, or threatens to use a weapon or imitation of a weapon • Causes ‘bodily harm’ • Anything that interferes with the victim’s health or comfort in more than a momentary, insignificant way

38. Assault 3 – Aggravated Assault • Most severe assault • When a person maims, disfigures, or endangers the life of the victim • Mens rea – only to commit bodily harm • Defense of consent may not be accepted in some circumstances of this level of assault

39. Sexual assault • Sexual Assault laws rewritten in the 1980s • Three levels - similar to the 3 levels of assault. • Important considerations when distinguishing sexual assault • Conduct must have occurred in a sexual context • Body part touched • Nature of the contact • Situation in with the assault took place • Actus reus of sexual assault is the sexual touching to which the victim does not consent • The mens rea of sexual assault can rest in knowledge that the victim gave no consent; recklessness; or willful blindness (perpetrator avoids asking the victim if consent is being given).

40. Sexual Assault • Level 1 • Same as assault 1, except that it occurred in relation to sexual conduct • Level 2 • 272(1) “Every person… who, in committing a sexual assault: • Carries, uses or threatens to use a weapon or an imitation of a weapon • Threatens to cause bodily harm to a person other than the complainant • Caused bodily harm to the complainant • Is a party to the offence with any other person, is guilty of an indictable offense and liable… to imprisonment for a term not exceeding 14 years – general intent offence

41. Sexual Assault • Level 1: • 265.(1) A person commits an assault when • (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; • (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or • (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. • (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

42. Sexual Assault continued • Level 3 Aggravated sexual assault • Most severe form of sexual assault • Section 273: • Every one who commits an aggravated sexual assault who, in the committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant • Every person who commits an aggravated sexual assault is guilty of an indictable offense and liable… to imprisonment for life.”

43. Indirect Sexual Assault • Indirect sexual harassment incidents usually involve a secondary victim who has been offended by visual or auditory conduct. A victim of indirect sexual harassment can be someone that overhears a lewd joke at work, even though they are not the subject of it, may read a letter or email that is sexual in nature and become offended by it, or can also come across an inappropriate image or photograph, such as on a screen saver or in an email. • In addition, indirect sexual harassment can involve someone who is a witness to the harassment of another individual. They may take offense or become fearful for their own safety.

44. Other Sexual Offenses • Law protects young people from being pressured into sexual relationships with older people • Forbidden to touch for sexual purposes, a part of the body of a person under 14 • Consent irrelevant – unless the accused is less than 3 years older than the victim • Forbidden to touch for sexual purposes…. If you are in a position of authority, the body of a person under 18, or the person is in a relationship of trust or dependency with the accused • Not knowing the age of the victim is NOT a valid defense.

45. Other Sexual Offenses continued General offenses • Commit bestiality • Commit indecent acts in public places • Commit incest • In the home of a person under 18, participate in sexual immorality thereby endangering the morals of the child or rendering the home as an unfit place for a child to be in • Exploit sexually a person with a mental or physical disability

46. Have you heard of any abduction cases in the news?

47. Abduction • Few child abduction cases involve strangers • Abduction: The forcible removal of an unmarried person under the age of 16 from the care of a parent/guardian etc….(including foster parents) • Divorce is increasing abduction rates! – different charge • Enticing: • When a custodial parent refuses to give access to a child according to the terms of an agreement • When a non-custodial parent detains or runs away with a child during a time of access • Defense: a) the other parent gave consent or b) to protect the child

48. Robbery • Theft involving violence • Threat of violence • Assault • Use of offensive weapons • Imitation of weapon is accepted by the courts as threat of violence • Masking or colouring one’s face with the intent to commit an indictable offense • Crown bases its case on the threat of violence • Must prove that the victiprobablem felt threatened • Reasonable and grounds for the fear • Max = life

49. Robbery, police-reported rate, Canada, 1979 to 2009

50. Review (text pages 220-245) Questions: • What constitutes a violent crime? • Distinguish between culpable and non-culpable homicides • Identify the mens rea and actus reus of murder • Distinguish between first- and second-degree murder and describe the penalties for each • Identify the mens rea and actus reus of manslaughter • Under what circumstances could a charge of murder be reduced to manslaughter? • Identify the factors that must be present for a culpable homicide to be considered infanticide. • Distinguish among the three levels of assault • Distinguish among the three levels of sexual assault • In what situation is consent not a defence to sexual assault?