Summary Conviction Offences

Trial Procedure

• Section 34(1) of the Interpretation Act defines different types of offenses:

  • Indictable: specified as indictable, leading to an indictable charge
  • Summary conviction: offenses where nothing is specified in the Criminal Code provision
  • Hybrid: offenses that are specified as hybrid.

• Incarceration terms dictate where sentences are served

  • Sentences less than two years are served in provincial jail
  • Sentences over two years are served in federal penitentiaries

Summary Conviction

• CC s. 786(2) Time Barred:

  • Summary conviction offenses are time-barred after twelve months from the offense completion
  • R v Dudley allows accused individuals to waive their prosecution rights within twelve months of conviction

• CC s. 787 Max Fine & Conviction:

  • Allows a maximum conviction of two years less a day imprisonment or a maximum fine of $5000

• CC s. 785 Court of Criminal Jurisdiction:

  • Establishes that a provincial court and judge alone constitute the only mode of trial

Indictable Offences

• Indictable offenses carry a higher maximum penalty than summary conviction offenses
• No statute of limitations exists
• Superior Courts have exclusive jurisdiction for serious offenses under CC s. 469
• For cases under CC s. 469, a judge and jury are required per 471, unless waived (473(1)) with consent from the accused and Crown

Hybrid Offences

• Prosecutors choose summary or indictable procedure affecting court procedures and police power.

• Provincial courts handle summary convictions and some indictable offenses, while Superior Courts try indictable offenses exclusively.

• Superior courts of the province handle solely indictable offenses

• CC s. 785 dictates cases are always a judge alone

• CC s. 553 deals with indictable offenses are "less serious" and are tried in the Provincial Court

  • The provincial court has absolute jurisdiction.

• CC s. 468 Every superior court of criminal has jurisdiction to try any indictable offence

• CC s. 469 Superior court has exclusive jurisdiction to try the "most serious" of the indictable offenses

  • These cases MUST have a judge and jury

• CC s. 471 Under 469, a judge and jury are a must UNLESS both Crown and the accused agree to void the jury (473(1)).

• CC s. 536 Accused elects whether to have their trial conducted by a superior court judge and jury, superior court judge or provincial court judge.

Criminal Procedure Impact

• CC s. 495 outlines arrest conditions without a warrant:
  • Reasonable grounds to suspect an indictable offense (1)(a)
  • Actively committing any criminal offense (summary OR indictable) (1)(b)
• CC s. 495(2) specifies arrest without warrant exceptions for less serious offenses, including:
  • 553 offenses
  • Hybrid offenses
  • Offenses punishable by summary conviction
• Officers need public interest grounds (495(d)) and bear the risk (495(e))
• CC s. 497 permits "appear on notice" instead of immediate arrest for specified crimes under 495(2).

Juries

• Canadian Charter s. 11 guarantees those charged with an offence has the right
• To the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment
• Criteria for Charter Section 11 jury trial rights:
  • Charged with an offense
  • Offense must be indictable
  • Punishment exceeds 5 years
• Canadian Charter s. 11
  • Guarantees presumption of innocence until proven guilty beyond a reasonable doubt in accused
• Biased juries deny accused impartial trial guaranteed under 11(d)
• Representativeness focuses on jury selection process, not jury constitution
• In R v Kokopenace, reasonable effort to obtain random jury selection is required

R v Kokopenace

• An Aboriginal man was accused of second-degree murder and found guilty of manslaughter, and said their s. 11(f) right to a representative jury was violated
• Majority analysis states that representativeness concerns jury selection process, not jury constitution, and reasonable effort required to obtain a randomly selected jury
• Minority analysis states that State action should be considered, and lack of representation is weighed based on State's capacity to address engagement of Indigenous people, such as in disengagement with the CJS

Juries Selection

• Before 2019, jurrors could be removed two ways -Challenge for Cause s. 638 -Peremptory Challenge s. 634
• Peremptory Challenge s. 634, now abolished, previously allowed challenges, and it was repealed to the courts can only have the challenge for cause outlined in (s. 638) -*R v Chauhan, established you do NOT need peremptory challenges to ensure a fair trial, this can be done so through the challenge for cause alone (s. 638)
• CC s. 649 makes discussing jury deliberation an offense but is allowed if its the exceptions are specified (649(2)

Actus Reus

• Actus Reus: this refers to the actions or conduct of an accused person that constitutes the crime itself

Contemporaneity

• Refers to offender's mental state at the time of crime

• Actus Reus relates to the physical act of committing a crime

• Both components must be Crown proven beyond a reasonable doubt in accordance with presumption of innocence in Charter 11(d)

• Mens rea not need to continue throughout the commission of the wrongful act

  • Mens rea needs to coincide with the impugned, questioned act (R v Cooper).

R v Cooper

• Cooper and Deborah went drinking in a car, and allegedly engaged in consensual sex Cooper hit Deborah and grabbed her by the neck - he recalled nothing further and woke up to Deborah dead beside him
• Expert suggested strangulation as likely death cause and it occured with 2 minutes of pressure
• Her hyoid bone was not broken so the pressure was slow and maintained

Legal Framework

• The subjective mens rea concerning the prohibited act avoids punishing the "morally innocent"
• In simultaneouis principle mens rea must happen at the same time as impugned act
• The mens rea not need to present at the start, may superimpose an existing act as shown in E.g., Fagan v Metropolitan Police
• It applies multiple acts in question may be one continuous transaction where the mens rea need coincide with one of wrong acts shown in the precedent Meli v The Queen

Application

• The mens rea not need to continue throughout the commission, coincides the impugned act only

• Jury could reasonably infer, Cooper meant to cause bodily harm ending in death when he grabbed Deborah's the neck

• It does not matter if not recall killing her, impugned act and intention coincide at one point is enough

  • Applying hands around a person's neck determined mental intent

• RATIO: Reaffirms Fagan in Canada, as mens rea need not continue throughout entire act so, coincide at the impugned act

Action and Omission

• For most Criminal Code to elements for the offense, a positive act must needed
• A specific omission within the statute must happen so the element of offense is satisfied

Undertakings and Criminal Negligence.

• Criminal Code s. 216 has the duty for those acts undertaking dangerous to life
  • Everyone administering surgical or medical treatment or lawful act endagering life must have and use reasonable skill, knowlege, take care or doing so excluding necessity cases

Criminal Code s. 217 - Duty of persons undertaking acts,

• If do act, must it with a legal under a legal undertaking where where am omission may dangerous to life Criminal Code s 219 has negligible criminal acts Everyone criminally negligent, (a) doing anything or, (b) omitting doing a legal duty, shows an erratic desregard for lives/safety

Legal duty is is NOT a mere expression, needs commitment, and high threshhold

There is a imposed standard, a duty with dangerous situation via miller.

R v Browne

• Browne had criminal negligibility with greiner death
• While being stopped Greiner had caved in. Browne had left her and did not do hospital treatment

RATIO- Pre exiting relationship not give rising is a required under section undertkaing, has is a rely upon

Causation

• When causal word mentioned in crimina needs to specific to act as that's leads two a resilt both causal to must be verified

• Causal - The truth fact action/s did occurs Causual not lead respon, just did accused an any actions lead to consequences

Proof has has to be given beyond doubr with mediaca

-Common only though commo law except section - 222 and 228 - Requirements

• influence mind alone is not

• Morally does lead harm

• The reuds is action that's death

-Contributing case beyond factors Harbodlle standard substantial contribute

• Can not contribute long is to, validity actions to

• That the that no

• Is is that they a s 224 s 228

consent

• The -all hlett

Consent

• CC 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;
• Assault is a foundation offence on which other offences can be construed; if consent acts as a defence to assault, it can act as a defence to manslaughter.
• Consent is only vitiated (can no longer function as a defence) where adults intentionally apply force causing serious or non-trivial bodily harm to each other in the course of a fist fight or brawl (R v Jobidan).
• BOTH the intention and actual cause serious harm must be present (R v Paice)

R v Jobidan

• FACTS:

  • Jobidan got into a consensual fist fight with Haggart in a parking lot
  • The trial judge found that Haggart was rendered unconscious after the initial punch; Jobidan then continued to punch the victim 4-6 more times Medical expert confirmed that the cause of death was one of the blows -Jobidan was charged with assault and manslaughter

• PROCEDURE:

  • Trial judge found that Jobidan did not depart intentionally from the kind of fight that he and Haggart had consented to; Haggart's consent negated the assault
  • The CA judge overturned the acquittal and substituted a guilty verdict

• ISSUE:

1. Is the absence of consent a material element that must be proven by the Crown beyond a reasonable doubt in all cases of assault? (i.e., is consent a part of the actus reus of assault)
2. Is criminal negligence better suited to address consensual fist fight cases than the law of assault?

POSITIONS:

• APELLANT: CC 265(1) states that assault only occurs where there is intentional force without the consent of another person → Jobidan argues that the trial judge's finding of consent meant that not all elements of the offence were satisfied
• Should parliament have intended that the absence of consent not be an essential element of the offence, they would have specified so as they have done in other instances
• Common law supports the notion that the law prohibits consent to street brawls or fist fights
• you cannot validly consent to bodily harm for policy reasons. has MAJORTY

1. :

• Implied can come for the in court fight

Common Law & Criminal Code - AssaultTraditional common law definition of assault

• assumed absence of consent*

2. was a required element of the offence Codification of common the law definition was simply

• language
• It was language was later modified to these include forms of were consent that were invalid in element in part in this with to being vitiated that for there is a this bar that for from under had all there that the means for been consent SCC there what to this it with bars the codified

3. and bar in there that the this had these specific to The The the

Voluntariness

• Element - is act must actus a mental Rues

• Requirement has for must act, has as must The to autonomous (Ruzic) of as principle reus been