Criminal Law and Criminal Justice Final Exam Prep PDF

Criminal Law and Criminal Justice - Final Exam Prep Chapter 6 The Special Case of Regulatory Offences: Strict and Absolute Liability in Canada Chapter 6 deals with the regulatory offences that arise under both federal and provincial or territorial legislation, as compared with ‘true crimes’...

Criminal Law and Criminal Justice - Final Exam Prep Chapter 6 The Special Case of Regulatory Offences: Strict and Absolute Liability in Canada Chapter 6 deals with the regulatory offences that arise under both federal and provincial or territorial legislation, as compared with ‘true crimes’ that are embodied in the Criminal Code of Canada or the Controlled Drugs and Substances Act Regulatory offences are concerned with the enforcement of a regulatory scheme that addresses inherently legitimate activities, such as engaging in trade and commerce, advertising, and driving on the highways. The body of ‘quasi-criminal law,’ consisting of regulatory offences under both federal and provincial or territorial legislation, us immense and affects almost every aspect of Canadian’s daily lives However, regulatory offences do not represent serious breaches of basic community values, as is the case with ‘true crimes’ Indeed, regulatory offences merely impose penalties (usually financial) on those whose conduct falls below a standard of reasonable care: this standard has been established to protect all Canadians from the potentially harmful consequences of inherently legitimate activities that are carried out in a negligent manner. Those individuals who are convicted of ‘true crimes’ are considered to be ‘morally culpable’ because they are engaged in inherently unlawful activities. On the other hand, those accused persons, who are convicted of regulatory offences are generally not considered to be ‘morally culpable:’ they are being penalized merely because their conduct did not meet the prescribed standard of reasonable care that is expected of everyone who engages in activities that provide perfectly legitimate services to members of the public Historically, Canadian courts adopted the view that all regulatory offences imposed a regime of absolute liability: the Crown merely had to prove the actus reus elements of the offence to gain a conviction and no consideration whatsoever was given to the question of whether or not the accused person was in any way to blame for what had happened  Eventually, a more flexible judicial strategy began to emerge in relation to the disposition of cases involving regulatory offences. This strategy was based on the notion that it should be possible for defendants, who are charged with regulatory offences, to advance the defence that they were not negligent This approach became know as the ‘hald-way house’ because it finds a middle ground between requiring the Crown to prove all the mens rea elements of an offence beyond a reasonable doubt and automatically convicting an accused person merely because he or she has committed the actus reus of a regulatory offence. The ‘half-way house” approach provides that the Crown merely has to prove that the accused committed the actus reus elements of the regulatory offence in question. At that point, the burden of proof shifts to the accused to establish his or her innocence by proving on the balance of probabilities that he or she was not negligent In the Sault Ste Marie case (1978), the supreme Court of Canada endorsed the ‘half-way house’ approach and ruled that it should be applied to most, but not all. Since the decision in the Sault Ste Marie case, Canadian criminal law has recognized three categories of criminal offences 1. Offences in which the wording of the statute requires that the Crown prove full mean rea. 2. Strict liability offences, in relation to which the Crown need not prove any mens rea elements, but which nevertheless permit the accused to raise the defence of ‘due diligence’ 3. Absolute liability offences, in relation to which there is not necessity for the Crown to prove the existence of mens rea and which do not permit the accused to avoid liability by proving that he or she action with ‘due diligence’ In the view of the supreme court of canada the vast majority of regulatory offence should be treated as offences of strict liability The court indicated that there is a number of factors that should be examined before a regulatory offence is designed as being one of strict or absolute liability:  a. The overall regulatory pattern of the statute b. The subject matter of the regulatory offence c. The severity of the penalty d. The precise wording of the regulatory legislation In the case of Wholesale travel Group inc. (1989); the court ruled that placing the onus on the accused to prove ‘due diligence; did not render the relevant legislation invalid under the Charter Also, there is the possibility that strict liability may, in rare cases, be imposed in relation to so-called ‘quasi-regulatory offences’ under the Criminal Code The next major topic concerns the impact of the Charter on the constitutional validity of offences that impose absolute liability in relation to regulatory offences The leading supreme court of canada decision in this area is Reference Re Section 94(2) of the Motor Vehicle Act (1985) The court ruled that the imposition of absolute liability will nearly always render a regulatory offence invalid under the Charter if it is coupled with the possibility of imprisonment. The court left open the question of whether the criterion of potential imprisonment includes imprisonment by way of default in payment of a fine The Wholesale Travel Group Inc. case (1991) is discussed as a vehicle for illustrating the circumstances in which the courts will strike down certain elements of regulatory legislation on the basis that they impose absolute liability coupled with the potential of imprisonment However, the Supreme Court of Canada’s decision in Pontes (1995) is also highlighted insofar as it emphasizes that absolute liability per se does not infringe the accused person’s right to liberty that is guaranteed by section 7 of the Charter: it is only the potential for imprisonment that renders absolute liability offence constitutionally suspect There is also the Rube case (1992), which was considered by the B.C Court of Appeal and the Supreme Court of Canada Rube illustrates the tendency of Canadian courts to make every effort to avoid classifying a regulatory offence as one of absolute liability because they wish to avoid declaring the relevant legislation invalid Chapter 7 The Judicial Process in Criminal Cases When a person has been charged with a crime, their case will be tried to determine if they are guilty or innocent of the crime Even thorough they have been charged, they are presumed to be innocent until found guilty These are the steps of the judicial process in criminal cases from the police The process may take several months or even a few years depending on the case A person can file a complaint with the police if they believe they have been a victim of a crime or are a witness to a crime The police will then decide whether or not to investigate The police will investigate, without any complaint filed, if a person if caught committing a crime Police Power The investigation’s period always depends upon the complexity and the situation of the case Once the investigation has been completed, the police can arrest a person if they have reasonable groups to believe that they committed a criminal offence After the arrest, they can release or keep the accused detained If the person is under the age of 18, they have the option to apply extrajudicial measures against them These measures are aimed to make sure they answer for their actions apart from the judicial system, for example by volunteering for a community organization After they are Released If the police decide to release the accused, they may also: ○ Give them an appearance notice before the judge in court; or ○ Have them sign a promise to appear before a judge, and then give them a copy (this promise can include conditions to comply, for example not using drugs or alcohol) ○ The documents all indicate where and when they must attend court before the judge - this part is called an appearance  ○ If the police do not give them any documents when they are released, or if they are not formally arrested, they may receive an appearance notice later, stating where and when they must attend court Assessment of the Investigation Report by the Prosecuting Attorney After the arrest, the police officers submit the following to a criminal and penal prosecutor: ○ A report investigation ○ The evidence gathered during the investigation ○ A request to initiate legal proceedings (a prosecution) The prosecutor assesses these documents They must decide whether criminal charges are laid or not To do so, the prosecutor bases their decision on the policies of the director of criminal and penal prosecutions When they decide to lay charges against a person, the prosecutor considers: ○ The evidence available ○ The opportunity to prosecute in the public interest: the public interest means, for example, the ensure safety of the population The best interests of victims and the population Witness protection Respect of fundamental rights, such as the presumption of innocence The prosecutor lays charges only if they believe they can convince a jury reasonably informed in law of the person’s guilt If the prosecutor accuses a person, they submit a formal denunciation, which lists the alleged offences for each count they are alleged to have committed This is then submitted to a justice of the peace, who must sign it in order to charge the person formally If no charges are laid against the person, the prosecutor may apply: ○ A non-judicial measure to their case, in other words, give them a warning (applies only to certain criminal offences) An alternative measure (or extrajudicial sanction) if the person is over 18 (applicable only to certain offences) An extrajudicial sanction, if the person is under the age of 18 (outside the justice system): for example, to volunteer for a community organization  The prosecutor may, if the evidence is insufficient, decide to drop the charges pr request a further investigation The delay between the moment the police refer the file to a prosecutor and the moment the prosecutor decides to lay changes depends on: ○ The evidence the prosecutor has to assess (quantity, types of evidence, complexity levels ○ Further investigation that the prosecutor might request of the police First Appearance If the police keep the person in detention after the arrest, they will appear before the judge within 24 hours or as soon as practicable If the police released the person after the arrest (ROR), they will appear before the judge at the time and place indicated in the document they received The appearance always begins with a reading of the charges laid in the denunciation document Interim Release Hearing If they are held in custody until their first appearance, the judge will hold a hearing to determine if they are to remain in custody until their trial or if they can be released This hearing is called a bail hearing The judge must hold the hearing not more than 3 days after their first appearance, except if the accused consents to a longer period If the judge decides they are not to be released, they will remain in custody during the trail At any point during the judicial process, the judge may amend their decision Grounds for Continued Custody The judge may remand the accused to custody because of the following reasons: ○ They may fail to appear before the judge for the next step in the judicial process ○ Custody is necessary in order to maintain public confidence in the judicial system ○ The safety of the population may be jeopardized if they are not detained  Regarding the last reason, the judge believes that the person may: ○ Commit further offences ○ Destroy evidence ○ Importune the victim or witnesses Conditions of release The judge may order a person released under certain conditions Depending on the offence with which they are charged, the conditions may require that the accused: ○ Remain at a fixed address ○ Not contact the victim ○ Not consume or possess alcohol or drugs ○ Not possess a weapon ○ Not drive a vehicle ○ Maintain good conduct and not disturb the peace ○ Attend court when required They must comply with the conditions until the end of their trial Breaching conditions constitutes a new offence and the accused may be returned to custody, or new charges laid. They may also be required to post bail This could be an agreement with the accused or specific financial conditions Financial Conditions (Bail) The judge may require that the accused post bail to guarantee that they will comply with the conditions of release and attend court when required Depending on what the judge orders, they will be required to: ○ Deposit the amount of the bail at the court office ○ Promise to pay the amount The promise to pay may be made by another person, who becomes their ‘surety’ This may be a family member or a friend If they fail to respect their bail conditions, the amount is confiscated Otherwise, it will be returned to the person who paid it once the judicial process is over, regardless of whether they are found guilty or acquitted Disclosure of Evidence  Before the trial, the prosecutor must disclose all the relevant evidence held against the accused This is called the disclosure of the evidence This means that they will receive a copy of the following elements from the police investigation: ○ Witness statements ○ Police reports ○ Photos ○ Video or audio recording, etc The prosecutor must also disclose all the other evidence gathered that will not be used at trial, regardless of whether it tends to show guilt or innocence of the accused In general, the evidence is disclosed at the accused’s first appearance, but it may be disclosed before or after they appear Based on the disclosure of evidence, the accused can: ○ Please guilty and immediately receive their sentence ○ Plead not guilty: the judge will then set a date for a trial or a next hearing before the judge ○ Request to postpone their plea at a further date For indictable offences, they will have to choose a trial ○ Before a judge only ○ Before a judge and a jury Negotiated Settlements (plea-bargain) Once an accused has assessed the evidence against them, they may choose to negotiate a settlement, by meeting privately with the prosecutor accompanied by their lawyer The settlement must the be approved by a judge Preliminary Inquiry If a person is charged with a serious crime such as murder, a preliminary inquiry will be held before their trial if requested by the accused or their lawyer ○ This inquiry is held to establish whether the evidence is sufficient to go to trial  After the preliminary inquiry, the judge determines if the accused will stand trial for each charge Some charges may be dropped, and others may be added based on the results of the preliminary inquiry Trail A criminal trial occurs when an accused pleads not guilty to charges laid against them In criminal law, trials are held before the public, with some exception. There are two parties are involved in a trial: ○ The prosecution, represented by the criminal and penal prosecutor, on behalf of the State ○ The defence lawyer, or the accused person if they choose to represent themselves The trial is a hearing for which the prosecutor has to convince the judge beyond a reasonable doubt that the accused is guilty The prosecutor will attempt to show that the accused committed the offence charged, for example by: ○ Calling witnesses, including the victim, if necessary, along with police and expert witnesses ○ Presenting physical and documentary evidence The accused is not required to give evidence, testify, or present witnesses However, they may do so to raise a reasonable doubt regarding their guilt If they decide to testify, the prosecutor will be able to cross-examine them Both the prosecutor and the defence attorney can cross-examine the witnesses presented by the other party Once the evidence has been presented, the defence attorney and the prosecutor will make their closing submissions The stage in the trial gives them an opportunity to: ○ Highlight key points in the case ○ Present their arguments, based on legal reasoning, to show guilt or innocence ○ At any moment during the trial, the accused can plead guilty to all charged against them or some of the charges against them. The Judgement (Verdict) A Trail Before a judge Only  At the end of the trail, the judge must decide if the accused is guilty of each charge brought against them They may be found: ○ Not guilty: they are acquitted of the charges ○ GUilty: the judge will determine the appropriate sentence (prison, fine, community projects, etc) ○ They may be found guilty on some charges, and not guilty on others ○ In addition, the judge may find them guilty of a crime of lesser importance than the original charge ○ The judge may announce the judgement immediately or takes time to consider it at more length It may be given orally or in writing The Judgement (Verdict) - A trial Before A Judge and Jury If the trial is held before a jury, the jurors listen to the judge’s instructions and then withdraw to decide on a verdict of guilty or not guilty If the jury finds the accused guilty, the judge determines then the sentence The Judgement (Verdict) - Verdict of not Criminally Responsible If the matter is raised, the judge or the jury can return a verdict of not criminally responsible for mental disorders If it happens, the case will be referred to the Review Board for mental disorders of the province where the accused was charged To be found not criminally responsible, evidence proving mental disorders must be presented before the Tribunal, including expert witness testimony Sentance The judge may sentenced the accused: ○ As soon as they plead guilty ○ As soon as they are found guilty However, sentencing normally takes place at another hearing In the meantime, the judge may hold a hearing at which the prosecutor and defence attorney can submit: ○ Relevant evidence to help the judge decide the sentence ○ Observations on the sentence the judge should apply They can also call witnesses, including the victim, and expert witnesses who can provide information to help the judge determine the sentence The judge may ask:  ○ A probation officer to prepare a pre sentencing report ○ A young delegate to prepare a pre-decision report, a specialist with the sexual offenders of Child and Young protection centre if the accused are under 18 years old These documents will focus on the offenders personality and criminal record, among other things If the victim has completed and submitted a victim impact statement, the judge must also take into account their psychical and mental injuries and financial losses Objectives of the Sentence The judge must render a sentence that is fair and reasonable and proportional to the nature and gravity of they offence committed The purpose of the sentence is to: ○ Protect society ○ Denounce unlawful conduct ○ Deter other people from committing offences Sentence The judge may choose a sentence that will assist in the offender’s rehabilitation They may also be required to provide reparation for the harm done to the victim, for example by paying an amount of money as compensation When deciding the sentence, among other things, the judge will consider The judge may choose a sentence that will assist in the offender's rehabilitation ○ The circumstances of the crime ○ Its severity ○ The accused's degree of accountability ○ The consequences of the crime on the victim Appeal If the offender considers that the judge has made an error, they may appeal the judgement The prosecutor may also appeal the judgement The defense, like the prosecution, have 30 days after the date of the end of the trial to appeal the judgement  If they Court of Appeal agrees to hear the case, they may confirm, amend or strike down the judgement, or order the holding of a new trial It may take several months between the date of the end of the trial and the decision rendered by the Court of Appeal Modes of Participation in Crime and Inchoate Offences Chapter 7 deals with two major issues: 1. The various routes by means of which an individual may become a party to a criminal offence; and 2. The inchoate (or uncompleted) offences of counseling, attempt and conspiracy. Section 21(1) of the Criminal Code provides that an accused person may become a party to a criminal offence when he or she actually committed the offence (thereby becoming the ‘principle’) or when he or she aide and/or abets another person in the commission of the offence concerned The courts have ruled that, in exceptional circumstances, an accused person will be considered to have ‘actually committed’ an offence even though he or she was not physically present at the time - provided that the Crown can establish that the accused person acted through an ‘innocent agent’ The concept of aiding the commission of an offence by another person involves the notion of actively providing assistance to that individual, whereas the concept of abetting involves the notion of instigating, urging, or encouraging the commission of the offence in question The Crown must prove that the person accused of aiding and/or abetting actively rendered assistance to, and/or encouraged, the principle in the commission of the offence (actus reus) - see Dunlop and Sylvester (1979): gang rape Furthermore, it must be established that the accused person intended to render much assistance or encouragement (mens rea) Mere passive acquiescence in the commission of an offence or mere presence at the scene of the crime do not, per se, constitute aiding and/or abetting However, where an accused person is under a legal duty of act (ex. A police officer in charge of a lock up) and fails to do so, then this may ne considered to be aiding and/or abetting - provided that the failure to act is accompanied  by the necessary intent to provide assistance or encouragement to the principle It is possible that an accused person may aid and abet another person to commit a particular offence but he convicted of a different offence than the principle For example, the principle may be convicted of murder but the accused person who aided and/or abetted the principle may be convicted of manslaughter because he or she lacked the specific intent required for murder When the Crown asserts that the accused person is a party to a crime on the basis of having aided and/or abetted the principle, it is not necessary to prove that the accused knew the precise details of the principles plans The Crown merely has to establish that the accused was aware of the general type of crime that the principal intended to commit Section 22 of the Criminal Code stipulates that an individual who counsels another person to commit offence will become a party to that offence if it is ultimately committed An accused person may escape liability under section 21(2) of the Criminal Code by asserting that the part or parties who actually committed the offence(s) in question went beyond the scope of the ‘common intention’ In addition, an accused person may be absolved of criminal responsibility under section 21(2) by communicating - in a timely and unequivocal fashion - their intention to withdraw from the ‘common intent’ Section 23(1) of the Criminal Code defines the crime of being an accessory after the fact to a criminal offence committed by another person The Crown must prove three elements in order to obtain a conviction under section 23(1): 1. Knowledge that a crime has been committed; 2. The desire to help the offender to escape; and 3. A positive act or omission intended to enable the offender to evade capture The second part of the chapter focuses on the inchoate offences of: a) Counseling b) Attempts c) Conspiracy  Liability for counseling an offence that was not committed is defined by section 464 of the Criminal Code Section 22(3) states that, for the purposes of the Criminal Code, the word ‘counsel’ includes ‘procure, solicit or incite’ Traditionally, it was assumed that the only forms for mens rea that would be appropriate for the offence of counseling was an actual intention that an offence or offences be committed However, the Supreme Court of Canada in the Hamilton (2005) case has added extreme recklessness as an alternative form of mens rea that will be sufficient for conviction of counseling an offence that was not committed In fact, if recklessness is to relied on as satisfying the mens rea requirements, the Crown must prove that the accused person was subjectively aware of, and consciously disregarded, the risk intrinsic in the counseling The starting point for the analysis of attempts is section 24 of the Criminal Code In interpreting this section, Canadian courts have emphasized that the mens rea requirements for a criminal attempt may only be fulfilled by an actual intention to commit a crime This means that the mens rea requirements for attempts may be even more onerous, from the Crown’s point of view, than the mens rea requirements for the completed offence itself. Under the terms of section 24(2) of the code, the trial judge must decide, as a matter of law, whether or not the actions of the accused are sufficiently proximate to the completed offence to justify conviction of attempt. If the actions of the accused are considered to be too ‘remote’ from the completed offence, then there may be no conviction of attempt. However, there is no simple test to determine whether or not the actus reus of attempt has been committed Each case must turn on its own special facts and particular attention must be paid to the specific type of crime that the accused was trying to commit Finally, Section 24(1) of the criminal code clearly states that the accused person may be convicted of an attempt ‘whether or not it was possible under the circumstances to commit the offence’  An accused person may be convicted of an attempt to commit any offence known to criminal law, whether or not it would have been impossible to complete the offence because of factual or legal obstacles to the accused;s ultimate success however , there can be no liability for criminal attempt where the accused seeks to commit a crime that is not fact, known to the criminal law - a so called ‘imaginary crime’ The final section of the chapter concerns the inchoate offence of conspiracy. Although section 465 of the Criminal Code provides for the punishment of those persons who conspire to commit an indictable or summary conviction offence, it does not contain a definition of the term ‘conspiracy’ Even though there must be a common purpose in order to establish that there was any direct communication between co-conspiracies may well meet the requirement that there be a common purpose In certain circumstances, the vendor and purchasers of illicit drugs may be found to have participated in a conspiracy to traffic in illicit drugs: where a buying and seller exchanged significant amounts of illicit drugs and cash, then it is reasonable to assume that they have a common purpose to traffic in the drug concerned the crown must prove that there was na intention on the part of the alleged co-conspirators to put their common design into effect Where one of two alleged co-conspirators does not intend to implement their criminal purpose, then there can be no conspiracy However, provided there are at least two individuals who intend to implement the common design, the the court may find that there was indeed a conspiracy - even though there may have been some other parties who would escape liability for the crime of conspiracy because they never intended to put their agreement into effect Reference is made, in this connection, to the rule that husband and wife may not be convicted of conspiring with each other, although they may be convicted of conspiring with other individuals to commit a crime The chapter concludes with a discussion of the requirement that the Crown establish that the common purpose at the centre of the alleged conspiracy is the intention to commit a crime (either an indictable or a summary-conviction offence)  However, the common purpose must be to commit a crime known to the law: as is the case with attempt, one cannot be convicted of a conspiracy to commit an ‘imaginary crime’ Chapter 8 Mental IMpairment and Criminal Responsibility: The Defences of ‘not criminally responsible on account of mental disorder’ (NCRMD and automatism There are two defences which may be raised by an accused person, who claims that they were acting under the influence of a mental disorder or an altered state of consciousness They are ○ The defences of NCRMD ○ Automatism The defence of NCRMD is concerned with the issue of criminal responsibility and the state of mind of the accused person at the time of the alleged offence However, the issue of fitness to stand trial is concerned exclusively with the state of mind of the accused person at the time of his or her trial and whether or not the accused person has the mental capacity to understand the nature and purpose of the trial proceedings and to communicate effectively with legal counsel The defence of NCRMD is unusual insofar as it does not lead to an acquittal but rather to a special verdict that the accused is not criminally responsible on account of mental disorder The criteria for the NCRMD defence are stipulated in section 16(1) of the CCC: the accused must have suffered from a mental disorder (defined as a ‘disease of the mind’) and, as a consequence, lacked the capacity to ‘appreciate the nature and quality of the act or omission’ or to ‘know that it was wrong’ These criteria are so strict that only a relatively small number of accused persons may raise the defence successfully - particularly, because the burden of proving the defence ( on the balance of probabilities) is placed on the party who raises it (usually the accused) Several important procedural issues that arise in the context of the NCRMD defence are set out:  ○ The presumption that a defendant is not suffering from a mental disorder so as to be exempt from criminal responsibility ○ The requirement that the party who raises the defence prove it on the balance of probabilities ○ The power of the Crown to raise the NCRMD defence contrary to the wishes of the accused It is the responsibility of the review boards and the courts to ensure that the proper criteria is applied when making decision as to the disposition of NCR accused persons There are three alternative dispositions available 1. An order that the NCR accused person be held in custody in a hospital; 2. A conditional discharge (release into the community under close supervision); or 3. An absolute discharge Next, the chapter examine the defence of automatism It is noted that automatism caused by a ‘disease of the mind’ leads, under s. 16 of the Criminal Code, to a verdict that the accused is NCRMD It is, therefore, necessary to distinguish between a successful defence of mental-disorder automatism and a successful defence of a non-mental-disorder automatism The former leads to a special verdict that renders the accused liable to restraints on his or her liberty, while the latter requires that the accused be granted an absolute acquittal It is emphasized that the Supreme Court of Canada has ruled that the question of whether a particular mental state constitutes a ‘disease of the mind’ is a question of law that must be decided by the trial judge In Stone (1999), the Supreme Court of Canada ruled that there should be a presumption that any state of automatism is the result of a mental disorder and that it will only be in rare cases that it will be appropriate to designate a state of impaired consciousness as being on of non mental-disorder automatism \an accused person can only raise a defence of psychological blow automatism in a case where there is an ‘extremely shocking trigger’ -  the type of shock that might cause an ‘average normal person’ to enter into a state of impaired consciousness The final issue that is discussed in connection with the issue of automatism concerns the primary (or persuasional) and the secondary (or evidentiary) burdens of proof that apply to the defence of automatism In the Stone case (1999), the Supreme Court of Canada ruled that the defence of automatism is exceptional insofar as the persuasional burden of proof should be placed on the accused: at the end of the trial, he or she must prove all of the elements of the defence on the balance of probabilities It is also emphasized that, as is the case for any defence that is raised in a criminal trial, the accused person who raises the plea of automatism must satisfy the evidentiary burden of proof This means that the accused must be able to point to evidence that is sufficient to establish that there is an ‘air of reality’ to the defence of automatism This implies that the accused must point to at least some expert psychiatric or psychological evidence that lends support to the assertion of the defence of automatism In the Fontaine 92004) case, the Supreme Court of Canada ruled that the evidentiary burden of proof will be discharged where there is some evidence that puts the defence ‘in play’ As Justice Fish recited ‘the defence will be in play whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused. Chapter 9 How sentences are imposed If an accused person is found not guilty, they are acquitted of the charge and are free to go, with the exception of those found not guilty on account of mental disorder If an accused person pleads guilty or is found guilty at trial, the Court must then determine a sentence that is fair considering the circumstances, the seriousness of the offense and the offender’s degree of responsibility In arriving at a sentence, the Court will have to consider several factors For example, the Court may increase or decrease a sentence to account for aggravating and mitigating factors relating to the offender or the offence.  An aggravating factor is something that increases the sentence, such as the offender’s criminal record A mitigating factor is something that decreases the sentence, for example, this is the first time the offender has been found guilty of an offence The main purpose of sentencing is to contribute to respect for the law and to a just, peaceful, and safe society by imposing fit sentences that have one or more of the following objectives ○ Denounce the unlawful conduct and harm to the victim ○ Deter (discourage) the offender and others from committing such crimes Separate offenders from society when necessary Assist in rehabilitating the offender Provide reparations for harm done to the victim and the community Promote a sense of responsibility in offenders and acknowledgment of the harm done The sentence should match the offender’s degree of responsibility for the offence The Court can decide many types of sentences or combinations of penalties The following are some examples: ○ Absolute or Conditional Discharge The Court can order that an accused be discharged of an offence after a finding of guilt, and no conviction will be registered Conditional or absolute discharges may only be ordered for less serious offences The court has the option of imposing: A conditional discharge: this adds specific conditions, or rules, to address the accused;s conduct that led to the offence The accused must agree to the conditions for a specified period of time through a probation order and will be discharged when the conditions are met The conditions may include: Not drinking alcohol or using drugs; Not going to specific places or buildings; or Going to specific treatment or counselling programs An absolute discharge: this discharge has no conditions ○ Suspended sentence and probation The court may choose to put off or suspend imposing a sentence and release the offender on probation for a specified length of time The court may also include a fine or conditional discharge with the probation order A person on probation remains out of custody but is supervised by a probation officer and must follow any conditions included in the probation order ○ Fine A fine is a set amount of money that the offender pays to the Court as a penalty for committing a criminal offence A crime may be combined with another penalty, such as imprisonment or probation Failing to pay the fine may lead to a civil judgement against the accused There are several ways to enforce the payment of fines For instance, an offender may pay it by participating in a fine option program, which is available in most provinces and territories except British Columbia, Ontario and Newfoundland and Labrador If the offender is in default of a fine, the provincial or federal government may issue, renew, or may suspend, a license or a permit until the fine is paid in full. As a last resort, a term of imprisonment may be imposed for defaulting on the payment of a fine ○ Conditional Sentence Where a person is convicted of an offence and the Court imposes a sentence of less than two years’ imprisonment, the Court may order that the sentence be served in the community, with certain conditions, instead of jail The court must be confident that if the offender serves the sentence in the community, they will not endanger the safety of the public  A conditional sentence is not available where the offender is sentenced for an offence punishable by a mandatory minimum penalty, for certain offences punishable by a maximum term of imprisonment of 10 years, and for all offences punishable by a maximum term of imprisonment of 14 years or life imprisonment ○ Imprisonment Imprisonment is the most serious sentence under our legal system because it deprives a person of their freedom The court may sentence a person convicted of an offence to jail An offender who is sentenced to less than two years serves the sentence ina provincial correctional institution An offender sentenced to two years or more usually serves the sentence in federal penitentiary ○ Intermittent Sentence Where the court imposes a sentence of 90 days or less, the Court may order that the sentence be served intermittently, or in blocks of time, such as on weekends This allows the offender to be released into the community for a specific purpose such as to work or school or caring for a child or for health concerns An intermittent sentence must be accompanied by a probation order, which governs the offender’s conduct while he or she is not in jail ○ Indeterminate Sentence for Dangerous Offenders After a special application and hearing, a person who commits an offence that causes serious personal injury (ex. An indictable offence involving violence against another person) may be declared a dangerous offender and sentenced to an indeterminate period of detention Indeterminate means thar the offender’s term of imprisonment does not have an end date The Parole Board of Canada reviews the case after seven years and every two years after that ○ Life sentences  In Canada, murder is either first or second degree Persons convicted of either degree of murder must be sentenced to imprisonment for life Persons convicted of first-degree murder are not eligible for parole until they have served at least 25 years of their sentence Persons convicted of second-degree murder are not eligible for parole until they have served between 1- and 25 years, as determined by the court It is important to note that convicted persons who were under the age of 18 at the time of the offence have different periods of parole ineligibility ○ Victim Surcharge A victim surcharge must be ordered at sentencing The amount of the victim surcharge is 30% of any fine that is imposed on an offender If no fine is imposed, $100 is charged for a summary conviction offence or $200 for an indictable offence The victim surcharge is paid into provincial and territorial assistance funds to develop and provide programs, services, and assistance for victims of crime The amount may be increased if the Court is satisfied that it is appropriate in the circumstances and that the offender has the ability to pay the increased amount In cases where offenders are unable to pay the surcharge, they may be able to participate in a provincial fine option program, where such programs exist ○ Restitution Restitution is the money the court may order an offender to pay the victim for money that the victim lost as a result of the offender’s crime The court is required to decide whether to issue a restitution order for all offences These may include money to repair or replace damaged property Under Canadian Law, the Court can order restitution:  A separate, or ‘stand-alone’, order along with another sentence; As one of the conditions of a conditional sentence; or As one of the conditions of probation If the court orders restitution, the offender has to pay the amount of money stated in the order to the victim to help cover his or her financial losses The court decides how much money the offender must pay The court must base the amount on the victim’s records of his or her actual financial losses caused by the crime. Mistake of Fact, Consent, and Mistake of Law as Defences to a Criminal Charge There are three frequently-related defences that may be raised by accused persons 1. Mistake of fact 2. Consent 3. Mistake of law The first defence - that of mistake of face, essentially represents an assertion that the Crown has not proved the necessary mens rea elements of the offence If the accused operates under the influence of a mistake as to an essential element of the actus reus of the offence, then he or she lacks the requisite mens rea While an accused person must raise a reasonable doubt that he or she entertained an honest mistake, there is general=ally no additional requirement that the mistake be reasonable As with other defences, the accused must first satisfy the evidentiary burden of proof before a mistake of face maybe considered by the trier of face: in essence, there must be sufficient evidence to create an ‘air of reality’ in the relation to the defence Parliament has decided that the defence of mistake of fact should be treated differently in the context of a charge of sexual assault More specifically, the defence may not be raised where the accused has not taken reasonable steps, in the circumstances known to the accused, to ascertain that the complainant was truly consenting to sexual activity [section 273.39b0 of the Criminal Code]  The next defence is that of consent in relation to offences that involved the commission of an alleged assault Consent is a valid defence whenever the Crown is required to prove the absence of consent as an essential element of the offence charged - a requirement that is included in the definition as assault in section 265 (1)(a) of the criminal Code However, section 265(3) of the Code states that any alleged consent, which is obtained by the application of force or the threat or fear of force, fraud, or the ‘exercise of authority,’ much be deemed invalid Section 273.2 of the code has added a number of specific provisions concerning the nature and scope of a valid consent in the context of a charge of sexual assault Consent, in this context, is defined as the ‘voluntary agreement of the complainant to engage in the sexual activity in question.’ In particular, section 273.1 stipulates that the court must find that there has been no valid consent to engage in sexual activity where, for example, the complainant lacked the capacity for consent or where the accused has abused a position of trust, power or authority Consent may not be a defence to a charge of assault where the accused has intentionally applied force that causes ‘serious hurt or non-trivial bodily harm.’ However, this principle does not invalidate any consent that is given to legitimate surgical or medical treatment or to any other activity that has a socially redeeming value (such as contact sports or stunts performed in the course of shooting a film). Insofar as contact sports are concerned, players are deemed to have consented to the application of force that falls within the bounds of the customary rules and expectations of the sport in question However, the courts have held that no player may validly consent to the deliberate infliction of non-trivial bodily harm by an opponent In addition, there are some types of physical contact that are so inherently dangerous that it would be contrary to public policy to permit the accused person to rely on the defence of implied consent to such contact Lastyly, mistake of law (or ignorance of the law) is not defence to a criminal charge (section 19 of the criminal code)  However, there are at least two exceptions to this potentially harsh approach One arises where an accused has reasonably relied on the erroneous legal advice or opinion of an official who is responsible for the administration of the legislation or regulations under which the accused has been charged (the so-classed defence of ‘officially induced error’) The second may be raised when the mens rea of the offence charged specifically include the requirement that the accused acted without ‘colour of right’ (ex. Theft and damage to property(mischief)) Chapter 10 The “Dangerous Few’ While discussing abolitionism in 1992, Willem de Haan, a professor of Criminology professor at the University of Amsterdam, states that… The problem of truly evil or mad individuals remains In such, relatively few cases, and as a last resort measure, the deprivation of liberty might be unavoided, at least in the current state of affairs It is an exceptional decision which should be taken exclusively as a measure of neutralization and applied in a humane fashion, as would be any other morally debatable decision in a problematic situation. Nevertheless, even in such cases, it would be preferable to look for fairer and more humane options based on solidarity, neighborly relations and communitarian spirit, rather than continuing to resort to solutions advanced by bureaucrats, professionals, and a centralizing State. Detention Criteria This will apply in the case of a person serving a fixed federal sentence, where there are reasonable grounds to believe they are likely to commit one of the following before sentence expiration: ○ An offence causing death or serious harm to another person ○ A sexual offence involving a child, or ○ A serious drug offence Indeterminate Sentence for Dangerous Offenders After a special application and hearing, a person who commits an offence that causes serious personal injury (for example, an indictable offence involving the use of violence against another person) may be declared a dangerous offender and sentenced to an indeterminate period of detention  Indeterminate means that the offender’s term of imprisonment does not have an end date The parole board of Canada reviews the case after seven years and every two years after that Dangerous and long-term offenders Section 752: Dangerous Offenders: ○ Judge designates a person serve an indeterminate period of time in prison ○ Parole board of Canada reviews the offender’s case every two years after they serve seven years Dangerous Offenders At the end of 2017, there were 565, of which 541 were still in detention, leaving only 24 on parole (less that 5%) By comparison, of the 1,154 people convicted of first-degree murder, about 940 are in custody and 214 are at large (nearly 20%) For the past 10 years, on average, 47 have been added per year At the end of the 2017=18 fiscal year, 921 offenders had been designated as dangerous offenders (DOs) since 1977 Of this number, 67.9% currently have at least one conviction for a sexual offence At the end of the 2017-18 fiscal year, 792 DOs were under the responsibility of the Correctional Service of Canada, of which 81.3% were serving indeterminate sentences Of the 792 DOs, 712 were incarcerated (5.1% of the prison population) and 80 were under community supervision There were 8 women designated as dangerous offenders Provocation and Intoxication: Partial Defences to A Criminal Charge Provocation The defence of provocation is provided for in section 232 of the Criminal Code It is a partial defence that is only available to a person who has been charged with murder If successful, the defence operates to reduce the charge from murder to manslaughter  232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool It is a basic requirement of the defence that it must be shown that the deceased victim engaged in a wrongful act or insult that was ‘sufficient to deprive an ordinary person of the power of self-control’ According to former Chief Justice Beverley McLachin, anger may form part of the defence of provocation only when all the following requirements of the defence are met: ○ A wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control - objective standard; ○ Which is sudden and unexpected (in the heat of the moment/passion) - subjective test; ○ Which in fact caused the accused to act in anger; ○ Before having recovered his or her normal control The trial judge must take into account any characteristic of the accused that directly affects the gravity of the taunt or insult, which is relied upon as the basis for a defence of provocation However, the ‘ordinary person’ test is based on the assumption that the hypothetical ordinary person possesses a normal temperament and level of self-control; Therefore, a particularly belligerent or pugnacious accused person would not be able to claim the benefit of the defence of provocation if an ordinary person would not have lost power of self-control in the identical circumstances If the accused person satisfies the ‘ordinary person’ requirement, then it must be shown that he or she acted ‘on the sudden and before there was time for his (or her) passion to cool.’ Finally, Section 232 states that an accused person may not claim the benefit of the defence of provocation if the victim was doing anything that he or she ‘had a legal right to do’  However, this provision has been given a narrow interpretation by the courts: simply because there is no specific legal prohibition against saying or doing something does not mean that an individual has a ‘legal right’ to do so Sudden provocation specifically states that the defence of provocation may only be raised where the accused person responds to sudden provocation If the accused person initiated the fatal altercation with the victim, the defence will fail Intoxication The defence of intoxication has traditionally been governed by the so-called Beard Rules These rules dictate that, where intoxication produces a ‘disease of the mind’ and the accused satisfies the requirements of Section 16(1) of the Criminal Code, then he or she should be found NCRMD The Beard rules are judge-made rules that define the circumstances in which an accused person may successfully raise the defence of intoxication They are: 1. If intoxication induces mental disorder and renders the accused ‘not criminally responsible’ within the means of section 16 of the CCC, he or she must be acquitted as being ‘Not Criminally Responsible on account of Mental Disorder’ (NCRMB) 2. If intoxication prevents a defendant from forming the intent necessary for conviction of a crime of specific intent, he or she must be acquitted; however, intoxication can never be a defence to a charge of a crime of general (or basic) intent. 3. If intoxication falls short of preventing the accused from forming the intent necessary for conviction of a crime of specific intent, it does not constitute a valid defence However, where the intoxication does not produce a ‘disease of the mind,’ then it may only serve as a partial defence: more particularly, it nay reduce a charge from one of a specific intent offence (such as murder, robbery, theft) to one of a general (or basic) intent offence (such as manslaughter, assault, sexual assault, impaired driving, mischief) The Supreme Court of Canada has ruled that, when applying the Beard rules, the correct test is whether the accused actually formed the specific intent  required for proof of the offence charged (ex. The intent to kill in murder or the intent to steal in robbery) Even though the Beard rules specify that intoxication may never be a defence to a crime of general (or basic) intent, in the Daviault case (1994), the Supreme Court of Canada held that to convict an accused person of a serious crime, such as sexual assault, when he or she was in a state of extreme intoxication would infringe rights guaranteed under the Charter Specifically, the Court ruled that, if the accused can prove that he or she was so heavily intoxicated to the point that he or she was in a ‘stake akin to automatism or insanity’, then there must be an acquittal even though the accused was charged with a crime of general (or basic) intent However, Parliament subsequently enacted Section 33.1 of the Criminal Code which removes the so-called ‘Deviault defense’ where the accused is charged with a crime of general (or basic) intent that involves an element of assault or interference with the bodily integrity of another person Nevertheless, the Daviault defence still applies to general (or basic) intent crimes that do not contain any element of personal violence (ex. Damage to property) The point is also made that Section 33.1 may be invalid under the Charter and that trial courts in Ontario, for example, have already ruled that it infringes Section 7 of the Charter and cannot be saved by Section 1 However, to date, the constitutionality of Section 33.1 has not been considered by an appellate court Chapter 11 Necessity and Duress: Two Excuses Recognized by the Courts as Defences to a Criminal Charge Chapter 11 examines the basic elements of two significant defences that mat be raised by an accused person in a criminal trial ○ Necessity ○ Duress The common-law defence of necessity becomes relevant where the accused person claims that he or she had no choice but to break the law in order to avoid a greater evil  Necessity is an excuse - not a justification - and the underlying rationale supporting the defence is that it would be unjust and inhumane to convict a person of a crime when he or she was acting involuntarily from a moral or ‘normative’ point of view: a person who acts out of necessity has no real choice but to do what he or she did not avoid a catastrophe The defence of necessity may only be raised successfully where the accused person was faced with a ‘clear and imminent peril’ Furthermore, the defence is not available to an accused person who had a reasonable legal alternative to breaking the law Finally, there must be a degree of proportionality between the offence committed and the evil that it was intended to avoid The rationale for the defence of duress is exactly the same as the rationale for the defence of necessity - namely, normative involuntariness Where the defence of duress is raised, the accused is essentially claiming that his or her power of choice was overridden by a specific threat from another human being Section 17 of the Criminal Code defines the parameter of the statutory defence of duress and places limits on its applicability In particular, section 17 states that duress may only be raised where there is a threat of immediate death or bodily harm to the accused and imposes the requirement that the person making the threat must be physically present at the time the offence is committed However, in the Ruzic case (2001), the Supreme Court of Canada ruled that these restrictions are invalid because they infringe the rights of the accused person under section 7 of the Charter As a consequence, the courts must now apply the relevant elements of the common-law defence of duress, which does not require that the threat made against the accused be a threat of immediate death or serious bodily harm The main element of the common-law defence of duress are that the accused must have been subjected to a threat of death or serious bodily harm; a threat must be of such gravity that it might have caused a reasonable person to act in the same manner as the accused; and the accused must not have had an obvious safe avenue of escape Whether of not the accused had a safe avenue of escape must be determined on the basis of a modified objective test  In the Ruzic case (2001), the Supreme Court of Canada did not declare section 17 of the Criminal Code invalid in its entirety: indeed, the Court expressed no opinion as to the validity of that part of section 17 which states that the defence of duress may not be claimed by an accused person who is charged with committing one or more of 22 serious offences Similarly, the Supreme Court of Canada did not comment on the validity of another provision of section 17 - namely, that the defence of duress may not be claimed by an accused person who is a member of a conspiracy or association that subjects him or her to compulsion Finally, the SUpreme Court of Canada rules in the Paquette case (1976) that, in any event, section 17 of the Criminal Code only applies to those accused persons who are charged on the basis that they actually committed the offence(s) charged The statutory defence does not apply in any respect to those accused persons who become parties to an offence on some other basis (ex. By aiding and/or abetting): these individuals are covered only by the requirements of the common-law defence of duress Chapter 12 Self-Defence and Defence of Property Chapter 12 reviews the remaining two major defences that may be raised in response to criminal charges in Canada: ○ Self-defence ○ Defence of property The CCC’s treatment of the defence of self-defence is unnecessarily complex However, the most important provision in relation to self-defence is undoubtedly section 34 of the Code Section 34(1) of the Criminal Code specifies the circumstances in which an accused person may raise self-defence when he or she has resorted to physical force in response to an unlawful and unprovoked assault by another person This provision only applies where the accused person does not intend to inflict death or grievous bodily harm and where the force used is ‘no more  than is necessary’ to enable the accused person to defend him or herself ( the requirement of ‘proportionality’ In sharp contrast, section 34(2) applies where the accused seeks to raise the defence of self-defence where he or she has caused death or grievous bodily harm in response to an unlawful assault by the victim It does not matter whether the accused person actually intended to cause death or grievous bodily harm Under section 34(2), the accused does not have to show that he or she was subjected to an unprovoked assault Furthermore, it is not necessary to establish that there was proportionality between the degree of force used by the victim and the degree of force exercised by the accused in self-defence however, section 34(2) does provide that the accused person must act under a reasonable apprehension that he or she will be subjected to the threat of death or grievous bodily harm and that he or she reasonably believed that there was no other way of preserving him or herself from death or grievous bodily harm There is no requirement, under section 34(2), that the accused person actually be under attack or facing an imminent attack Evidence of so-called ‘battered wife syndrome’ may be introduced in order to assist the members of the jury to decide whether or not a women who has killed her partner reasonably believed that she had no option but to employ lethal force in self-defence Section 37 of the Criminal Code provides a specific defence to those individuals who use force in order to prevent an assault wither against themselves or anyone under their protection The circumstances in which accused persons may use force in defence of their land or dwelling houses are delineated in sections 40 and 41 of the Criminal Code Section 40 furnishes a defence to an accused person who is in peaceable possession of a swelling house and who uses force to prevent someone from forcing their way into the dwelling house: however, the force must be no more is ‘necessary’ in the circumstances Section 41(1) of the code permits an accused person who is in peaceable possession of a dwelling house or land to use ‘no more force than is necessary’ to prevent a person from trespassing or to remove a trespasser  If the trespasser actively resists the person in peaceable possession of the swelling house or land, then the trespasser will be deemed to be committing an unlawful and unprovoked assault This means that the person in peaceable possession may raise the defence of self-defence under either section 34910 or 34(2) of the Criminal Code