Criminal Law & Procedure PDF

CRIMINAL LAW & PROCEDURE LEO RUSSOMANNO Criminal Law Power – Constitution Act, 1867 Section 91(27) Section 92(14) 91. […]it is hereby declared that… the 92. In each Province the Legislature exclusive Legislative Authority of the may exclusively make Laws in re...

CRIMINAL LAW & PROCEDURE LEO RUSSOMANNO Criminal Law Power – Constitution Act, 1867 Section 91(27) Section 92(14) 91. […]it is hereby declared that… the 92. In each Province the Legislature exclusive Legislative Authority of the may exclusively make Laws in relation Parliament of Canada extends to all to Matters coming within the Classes of Matters coming within the Classes of Subjects next hereinafter enumerated; Subjects next hereinafter enumerated; that is to say, that is to say, 14. The Administration of Justice in the 27. The Criminal Law, except the Province, including the Constitution, Constitution of Courts of Criminal Maintenance, and Organization of Jurisdiction, but including the Procedure Provincial Courts, both of Civil and of in Criminal Matters. Criminal Jurisdiction…. Criminal Law Power – Constitution Act, 1867 Federal power Provincial power - 91(28) - Federal government control 92(6) – establishment of reformatory over penitentiaries – for those prisons – sentences under 2 years serving a sentence of 2 years or 92(15) – to impose punishment by way more of fine, penalty or imprisonment to 96 – appointment of federal judges enforce valid provincial laws (SCJ), appeal court judges, 92(14) – over the administration of Supreme Court justices justice – who prosecutes? Appointment of provincial judges Criminal Law Power – the court system  Constitutional Law Statute Law The Common Law Sources of Indigenous Legal Traditions Criminal Law  Decision of society, through legislature, to define certain behaviour as not only prohibited, but prohibited on pain of criminal What is punishment criminal law? -what behaviour? How punished?  AB challenges Parliament’s power to pass gun control law What is the “pith and substance” of the gun control law? SCC: the law is directed to “enhancing public Reference re safety by controlling access to firearms through Firearms Act prohibitions and penalties” (Can) SCC: encroachment into property and civil rights is not excessive SCC: even if gun control doesn’t involve morality (which it does) it still falls within federal power SCC: efficacy of the law or disproportionate impact on rural law abiding owners does not affect constitutional analysis  Applies to activities of Canadian legislatures and government officials The Canadian such as the police Charter of Applies to different aspects of the Rights and criminal process – police Freedoms investigation, bail, trial, sentencing Where does it stand in the hierarchy? S. 52 Escape Hatches s. 24(2) – evidence excluded where “it brings the administration of justice into disrepute” S. 1 - reasonable limits clause S. 33 – notwithstanding clause The Criminal Code Codification refers to bringing the criminal law into a “single, coherent, and exhaustive document” Codification promotes certainty and predictability – When we talk about codification, we are talking about the criminal law being found in a STATUTE as opposed to being a matter of the common law. Canada adopted a CC in 1892 Common law offences abolished in 1953 What about defences? Jobidon This case demonstrates the continued salience of the CL in interpreting CC provisions. Accused and victim engaged in consensual fist fight in parking lot of a bar – victim blacked out, went into a coma, and eventually died. CC defines assault as intentional application of force to another “without the consent of the other person.” Accused acquitted on basis that fight was consensual; CA overturned acquittal, concluding that an accused can’t consent to bodily harm. Text of CC pretty clearly contemplates possibility of consenting to grievous bodily harm. Jobidon BUT there is a CL prohibition on such consent. Does the CL prohibition inform interpretation of the CC provision? SCC says YES. SCC says all CC offences [except contempt of court] are now codified, but that doesn’t mean that CL no longer informs the interpretation of codified offences. Section 8 specifically provides that CL rules continue to apply to the extent that they’re not inconsistent with the Code. S 8(3) speaks specifically to defences. So scope of consent as a defence to assault at CL continues to be relevant in interpreting the CC. Jobidon Policy considerations prevent adults from consenting to grievous bodily harm. There is an exception for individuals from consenting to notional assault that flows from rough sporting activities as long as application of force falls within the “customary norms and rules of the game.” Jobidon – dissent Sopinka J dissents (Stevenson J concurring): This is judicial law-making. Text of statute is clear that you can, in fact, consent to GBH. Can’t use the CL to interpret away an element of the offence. Interpretation of the Criminal Code “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” – Bell ExpressVu -What about interpreting legislation in two official languages? – Schreiber v Canada R v Clark – whether a living room is a public place within the meaning of 173(1)(a) of the Criminal Code Interpretation of the Criminal Code: R v Pare Interpretation of s. 214(5)(b) – (now s. 231(5)) – murder is first degree murder when the death is caused by a person while the person is committing indecent assault Respondent’s argument was that the murder occurred after the indecent assault was complete An issue of strict construction vs. contextual interpretation – SCC favours the latter in this case 1. difficulties with definition; 2. Arbitrary and irrational distinctions – what if strangling occurred 2 mins earlier? 3. ‘single transaction’ analysis more properly reflects the intention of parliament to punish more severely where a murder is committed by someone already abusing his power by illegally dominating another  Reading a case slides taken primarily from Synthesis: Legal Reasoning and Reading/Briefing Cases Writing in Canada, 2nd ed. To use a case as precedent, you need to know how to read it. Facts A case = the court’s reasons for Procedural History judgment or reasons for Legal Issues Legal Rules decision. Application Ratio Explain why a court has ruled as it has. Remedy Facts All cases start with facts. Facts Procedural History Not all facts in a case all Legal Issues Legal Rules relevant. Application Ratio Your job is to isolate the legally relevant facts. Remedy Procedural History What has happened to date Facts procedurally in the case. Procedural History Legal Issues Legal Rules Application Ratio Remedy Legal Issues Questions the court answered in Facts deciding the case. Procedural History Legal Issues Sometimes there’s a specific Legal Rules section which sets out the Application Ratio relevant legal issues. e.g. “Does s. 58 of the Usually presented in question Quebec Charter of the Remedy form. French Language infringe the right to freedom of expression?” Legal Rules Sets out the relevant legal rules. Facts Procedural History Where are these rules found? Legal Issues Legal Rules Application Ratio Remedy Application Rules of law are applied to the Facts legally relevant facts. Procedural History Legal Issues End product of applying the law Legal Rules to the facts is the court’s Application Ratio holding– in other words, its conclusion. Remedy Ratio vs. Obiter Dictum Important to distinguish btw Facts court’s ratio – the legal principle Procedural History for which the case stands– and Legal Issues Legal Rules obiter dictum. Application Ratio Obiter dictum = incidental comments that were not strictly necessary to dispose of the Remedy appeal. Ratio vs. Obiter Dictum Only the court’s ratio is binding Facts as mandatory precedent. Procedural History Legal Issues That said, even obiter from the Legal Rules SCC has great precedential Application Ratio weight. Remedy Remedy The consequences that flow Facts from its holding. Procedural History Legal Issues Legal Rules Application Ratio Remedy Disposition/Order of the Court Procedural directive that gives Facts effect to the court’s decision. Procedural History Legal Issues On appeal, disposition is either Legal Rules that TJ’s judgment is affirmed or Application Ratio reversed. Remedy