Lecture04.pptx

Questions:  What’s the difference between arrest/charge?  Summary Conviction- you must ____ ______ to arrest.  What are the max penalties for summary conviction offences?  What is “statute of limitations?”  Are there exceptions to the maximum penalty in Summary Conviction offences?  What are...

Questions:  What’s the difference between arrest/charge?  Summary Conviction- you must ____ ______ to arrest.  What are the max penalties for summary conviction offences?  What is “statute of limitations?”  Are there exceptions to the maximum penalty in Summary Conviction offences?  What are the facts in issue for the offence of “trespass by night?” Indictable Offences: Major Criminal Offences:  NO statute of limitations.  What does this mean?  Any BG who commits an ind off is NEVER immune from prosecution AND an information can be laid (charge) at ANYTIME in the future.  Case Study- Jane reports to the police today, that in 2003 her brother John punched her in the mouth.  Off?  Assault.  Can an info be laid today?  Yes, no time limit. Recall…  Walmart case study: Walmart security sees a BG steal a Bruce Springsteen album. He chases him but loses sight of him in the parking lot. Walmart security guard sees the same BG back in the store two days later.  Offence?  Theft  Level of belief?  Reasonable Grounds  Arrest?  NO! security guard CANNOT arrest of RG’s. Now what?  CALL POLICE  You are a police and attend the Walmart. Security shows you the BG. Security guard tells you what happened. (one credible eyewitness).  You (police) now have reasonable grounds. Ind off-Police CAN arrest on reasonable grounds Maximum Penalty:  2 years  5 years  10 years The penalty will be listed in  14 years  LIFE the offence  Life in Canada is 25 years. List of Indictable Ofences:  1st Degree Murder- planned or premeditated. Also includes certain occupational murders. ie. Police murder.  2nd Degree Murder- intentional killing. The act of the offender was intended to murder the victim. ie. The offender grabbed a knife and stabbed the victim in the chest. Manslaughter:  Is an intentional, unlawful act PLUS death.  Example:  1:Bad guy intentionally drives car while impaired. MVC and someone is killed.  2:Driver intentionally speeding hits and kills a pedestrian crossing the street. Indictable Offences continued…  Attempt Murder- the offender attempts to complete 1st / 2nd degree murder but fails.  Robbery- Sec. 343- Everyone commits robbery who,  (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;  (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;  (c) assaults any person with intent to steal from him, or  (d) steals from any person while armed with an offensive weapon or imitation thereof. THEFT + VIOLENCE = ROBBERY Case Study:  John walks up to Robert and punches him in the mouth. Robert falls to the ground. John takes his wallet. John leaves and Robert calls the police.  Off?  Robbery  Class of Off?  Ind.  Belief? RG  Arrestable?  Yes  Charge  Yes Break and Enter: (dwelling)  Break, Enter Commit Indictable Offence there in: breaks into a house and commits an indictable offence of theft or mischief.  Break, Enter - with Intent to Commit Indictable Offence: breaks into house nothing stolen.  ‘Reverse onus’ offence. This means the BG must prove he did not have the intent. Once the BG commits the break/enter he has proven his intent to commit the indictable offence.  THERE ENTER. IS NO OFFENCE KNOWN AS BREAK AND The ‘OVER’ offences:  Theft OVER $5000  Fraud OVER $5000  False P. OVER $5000  P.O.S.P. OVER $5000 These are all INDICTABLE Assault:  There are four types of assault.  Assault  Assault with a weapon  Assault causing bodily harm  Aggravated Assault  ONLY one is INDICTABLE. Examples: Assault BG pushes victim to ground and runs away Assault w/ weapon BG hits victim with a baseball bat Assault BH Injury beyond transient and trifling Aggravated Assault Wound, maim or disfigure Sexual Assault:  There are four types of sexual assault.  Sexual Assault  Sexual Assault with a weapon  Sexual Assault causing bodily harm  Aggravated Sexual Assault  Three are INDICTABLE Other Indictable offences:  Obstruct  Perjury –  Arson Justice Lying under oath (court) Case Study Obstruct Police:  You have a warrant for Mark Jones. You attend his house. You are met by Mark’s father, Mr. Jones. You tell Mr. Jones about the warrant for Mark. He knows his son is home, but tells you Mark is out for the day. Later you arrest Mark and find evidence that Mr. Jones knew Mark was home.  Off.?  Obstruct Police  Class. of Off.?  Ind To this point:  To this point, we’ve learned of two classifications of offences:  1: SC Offences  2: Ind. Offences  Third set of Offences is:  DUAL PROCEDURE OFFENCES  Not a permanent classification. That means, you can NOT be convicted of a Dual Procedure Offence. Dual Procedure Offences Continued  D.P. are a list of offences that can be either Summary Conviction Indictable DUAL PROCEDURE OFFENCES ARE TEMPORARY LIST Rule:  DP Offences are considered Indictable from the time of the offence until the BG first appearance in court.  Why is this important to police?  Sec495 CC. indictable offence, police may arrest on reasonable grounds Dual Procedure Chart: Time of off. Time of arrest Theft Under DP Temp it Is IND Temp. Treat as IND until BG’s 1st crt. date What law? 34(IA) Time of releas e Temp it is IND Lay info/ charg e Temp it Is IND 1st court App. 2-3 weeks after First Court Appearance: In court, the court clerk calls the BG by name. Clerk is holding the information and reads it out loud to the accused. The Arraignment The arraignment is important because it is the cornerstone of a democratic system. The accused can never say ‘I had no idea what I was charged with.” First Court Appearance Continued  Next, if the offence is DP, the court clerk asks the crown attorney:  “HOW DO YOU WISH TO PROCEED?” (crown’s election) Translation- this offence is dual procedure. The crown will now make the decision to prosecute the accused by way of Summary conviction, or indictment. First Court Appearance Continued  The crown will decide to proceed as an Ind. offence or a SC offence (break).  After the election, can the BG appeal the crown’s decision?  NO  Can the Judge reverse the crown’s decision?  NO, Why?  S.C.C. case law decision- R vs. WEST 1915. The crown attorney is acting for the people. The Government cannot make up the crown’s mind for them. The crown attorney is in the best position to make final decision. First Court Appearance Continued  The accused is asked,  “HOW DO YOU WISH TO Guilty PLEAD?” Not Guilty No Trial (sentencing @later date) Trial Must Occur Never at 1st app. will be sch. Indecent Act 173(1)CC  Indecent act is NOT called Indecent Exposure (slang). Indecent Act is NOT Sexual Assault.  Some one who willfully engages in an indecent act in a public place in front of one or more persons (over 16yrs old) with the intent to insult or offend. Harassing Phone Calls (telecommunication)  Must prove it is of a ‘repeating’ nature. With the intent to annoy or harass.  Can one phone call be harassing?  No  Can two phone calls be harassing?  Yes  In C.C. there is no definition for number of calls.  You must prove MENS REA (Latin for guilty mind or intent).  Intent is complete when you simply call repeatedly.  No conversation has to be proven. ONLY that the phone calls were made (more than one). CONTENT IS NOT THE ISSUE. Case Study Continued…  You are a police dispatched to 43 Junkin St to meet with Mr. ROBINS. He reports that his ex-girlfriend has called his phone 45 times today. He shows you the number on the caller ID. You meet with the ex-girlfriend. She confesses saying she’s sorry she called 45 times. She was angry with him.  Off?  Harassing Phone Calls (telecommunication)  Class. of Off?  DP  Level of Belief?  RG. Why?  Confession to anyone (police)  Arrest?  Yes. Why?  RG. (DP temp IND) Obscene Phone Call (telecommunication)  The C.C. definition of the offence does not include “repeated.” Therefore, one phone call is enough to charge/convict. MUST prove conversation and content was Obscene in Nature not defined in C.C. Judge will determine on a case-by-case basis Case Study Continued…  You are a police dispatched to 41 John St. to meet with the complainant, Joanna SMITH. She tells you that one hour ago her ex husband Josh SMITH called her. He was swearing and yelling at her. He said “_________.” You go to Josh’s home.  Off.?  Obs Phone Calls (telecommunication)  Class. of Off.?  DP  Level of Belief?  RG. Why?  Credible eyewitness  Arrest?  Yes. Why?  RG. (DP temp IND)  Charge?  Yes Dual Procedure List:  Break, Enter- Theft- any place other than house.  Break, Enter- Intent“ ”  Theft UNDER $5000  Fraud UNDER $5000  False P. UNDER $5000  P.O.S.P. UNDER $5000  EXCEPTION- mischief under/over $5000 are both DUAL P.  Public Mischief  Assault- force with no injuries  Assault- Causing Bodily Harm  Assault-With a Weapon  Sexual Assault  Criminal Harassment “stalking”  Possession of a Weapon Dangerous to the Public Peace A Quick Review:  Know the list of Indictable offences.  Break, Enter (dwelling) is a rare offence. (reverse onus)  OVER vs UNDER offences. (exp mischief)  Assault- 4 types- 3 DP/1 IND  Sexual Assault- 4 types- 3 IND/1DP  DP offences are not a classification but a temporary list.  DP offences considered IND from time off. to 1 st court date. (why this is important to police)  Know/understand the 1st court app.  Know the list of Dual Procedure Offences.