Chapter 3 Criminal Law PDF

Chapter 3 Criminal Law by Simon N. Verdun-Jones Simon Fraser University Slides prepared by...

Chapter 3 Criminal Law by Simon N. Verdun-Jones Simon Fraser University Slides prepared by Stephen Schneider Saint Mary’s University Copyright © 2020 by Top Hat 3-1 Learning Objectives Define a crime. Identify the sources of Canadian criminal law. Distinguish between regulatory offences and “true crimes.” Analyze criminal offences in terms of the actus reus (physical) and mens rea (mental) elements. Understand the differences between subjective and objective mens rea requirements. Copyright © 2020 by Top Hat 3-2 Learning Objectives (cont.) Describe the different ways in which a person may become a party to a criminal offence. Identify the basic components of the inchoate crimes of counselling, attempt, and conspiracy. Describe the major defences that may be raised in response to a criminal charge: not criminally responsible on account of mental disorder, mistake of fact, mistake of law, intoxication, necessity, duress, provocation, and self- defence. Copyright © 2020 by Top Hat 3-3 What Is a Crime? Copyright © 2020 by Top Hat 3-4 What Is a Crime? Legal definition: a crime is conduct that is prohibited by law and subject to a penal sanction (incarceration or a fine). Prohibitions include the Criminal Code and other federal statutes. There may or may not be a consensus within society that the conduct is wrong. In Canada, prohibitions are the result of a legislative process that is intensely political. Police and judiciary are required to enforce the laws regardless of their own personal views. Copyright © 2020 by Top Hat 3-5 What Is Criminal Law? Copyright © 2020 by Top Hat 3-6 What Is Criminal Law? The definition of various crimes A body of The specification of various jurispruden penalties ce that A set of general principles includes the concerning criminal responsibility following: A series of defences to a criminal charge Copyright © 2020 by Top Hat 3-7 Sources of Criminal Law Where does criminal law come from in Canada? Judicial decisions Federal that either interpret such legislation or legislation state the “common law” Copyright © 2020 by Top Hat 3-8 Federal Legislation and Criminal Law Constitution Act, 1867 Parliament has exclusive jurisdiction over criminal law and procedures. A crime is usually defined by two elements: a prohibition against certain conduct and a penalty for breaking that prohibition. However, for federal legislation to be valid under Parliament's criminal law powers, a third element is required: the prohibition and penalty must target a “public evil” or behavior that harms the Canadian public. If any of these elements is missing, the legislation may be invalidated for encroaching on provincial or territorial jurisdiction. Copyright © 2020 by Top Hat 3-9 Federal Legislation and Criminal Law What important pieces of legislation has the Canadian Parliament enacted in the field of criminal law? (substantive criminal law) Defines criminal acts (such as murder, manslaughter, and theft) and the legal elements that must be present for a conviction (procedural law) Specifies the criminal procedures to be followed in prosecuting a case and the powers of CJS officials Outlines how various categories of offences are to be tried in court, specifying whether they are to be heard by a judge alone, a judge and jury, and whether they are tried in a Superior Court or a Provincial (or Territorial) Court. It categorizes offences into three types: indictable, summary conviction, and hybrid (which can be tried as either indictable or summary). Copyright © 2020 by Top Hat 3-10 Federal Legislation and Criminal Law Other relevant federal criminal statutes Controlled Youth Drugs and Customs and Criminal Substances Excise Act Justice Act Act Copyright © 2020 by Top Hat 3-11  Federal and Provincial or Territorial Regulatory Legislation: Quasi-Criminal Law Constitution Act, 1867: Provinces have jurisdiction to enact legislation over health, education, highways, liquor control, hunting, and fishing, etc. This legislation may be enforced through the imposition of “a fine, penalty or imprisonment.” Regulatory legislation Regulatory offences do not constitute criminal law because it does not address “public evil.” Regulatory legislation is concerned with the orderly regulation of legitimate activities. Copyright © 2020 by Top Hat 3-12  Federal and Provincial or Territorial Regulatory Legislation: Quasi-Criminal Law Criminal law is directed toward the control of behaviour that is considered to be inherently wrong (that is, public evil). Regulatory offences are less serious than criminal offences, which are “true crimes.” These quasi-criminal laws, while extensive and complex, are distinct from criminal law and include a wide range of federal and provincial regulations (the Fisheries Act, the Safe Food for Canadians Act). Ignorance of these laws does not exempt individuals from responsibility for violations. Copyright © 2020 by Top Hat 3-13 Sources of Criminal Law Where does criminal law come from in Canada? Judicial decisions Federal that either interpret such legislation or legislation state the “common law” Copyright © 2020 by Top Hat 3-14 Judge-Made Criminal Law Second major source of criminal law: Judicial decisions that interpret criminal legislation (Parliament cannot anticipate every scenario or define every term in its legislation, so there is significant room for judges to interpret the Criminal Code ) or expound the common law (Laws that evolve in areas not covered by legislation) Judges interpret criminal law. In Canada, judges cannot create new common-law crimes. However, they develop common-law defences that are not dealt with by legislation. Copyright © 2020 by Top Hat 3-15  Impact of the Canadian Charter of Rights and Freedoms on Criminal Law Copyright © 2020 by Top Hat 3-16  Impact of the Charter of Rights and Freedoms on Criminal Law The Canadian Charter of Rights and Freedoms empowers judges to declare invalid any legislation that infringes on an individual’s Charter rights. The Supreme Court of Canada has ruled that some criminal laws are invalid (for example, laws prohibiting abortion, some laws relating to sex work). sex trade workers challenged certain Criminal Code provisions related to prostitution, arguing they endangered their safety by preventing them from using protective measures. The Supreme Court agreed, ruling that these laws were invalid as they compromised the workers' physical security. The Court gave Parliament one year to create new, safer legislation. Parliament responded with Bill C-36, which criminalized the purchase of sexual services while decriminalizing their sale, effective November 6, 2014. Copyright © 2020 by Top Hat 3-17 The Basic Elements of a Crime: Actus Reus and Mens Rea Copyright © 2020 by Nelson Education Ltd 3-18. Basic Elements of a Crime Actus reus and mens rea need to be shown beyond reasonable doubt for a person to be convicted. An accused may not be convicted of a crime unless it can be proved that (i) an event or state of affairs was “caused” by the accused person’s conduct (actus reus), and (ii) this conduct was accompanied by a certain state of mind (mens rea). Copyright © 2020 by Nelson Education Ltd 3-19. The Actus Reus Elements of a Crime Conduct (a voluntary act or omission constituting the central feature of the crime) The actus reus elements of a The surrounding or crime includes “material” circumstances three components: The consequences of the voluntary conduct Copyright © 2020 by Nelson Education Ltd 3-20. The Actus Reus Elements of a Crime There are some significant exceptions to the division of the actus reus into three elements: Perjury does not require proof of any consequences. A failure to act can constitute a crime only if the accused was under a pre-existing legal duty to act. For example, there is a pre-existing duty owed by a parent to a small child to provide the latter with the “necessaries of life.” The accused’s conduct must be voluntary. If an accused person’s consciousness is seriously impaired, there may be no actus reus due to involuntary actions Copyright © 2020 by Nelson Education Ltd 3-21. The Mens Rea Element of Crime Mens rea refers to the mental elements of the crime (other than voluntariness) the Crown must prove. A person must understand and intend the consequences of his or her act. The purpose of proving mens rea is to ensure that only those who are morally blameworthy are convicted, preventing the punishment of those who do not understand or intend the consequences of their actions. Copyright © 2020 by Nelson Education Ltd 3-22. The Mens Rea Element of Crime There are two very distinct types of mens rea requirements in Canadian criminal law: (1) subjective : “Subjective mens rea, constitutes a requirement that the accused deliberately chose to do something wrong” (2) objective: “objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care.” Subjective Mens Rea (Subjective mens rea, therefore, constitutes a requirement that the accused deliberately chose to do something wrong.) The accused intended to bring about consequences prohibited by law. Subjecti The forms of subjective ve mens rea are intention and knowledge; recklessness; willful blindness. Copyright © 2020 by Nelson Education Ltd 3-24.  Objective Mens Rea (failure to meet the standard of care expected of a reasonable person, rather than from a deliberate choice to act wrongly)) A conviction should ensue because a reasonable person Objecti would have appreciated that ve his/her conduct created a risk of harm and would have taken action to avoid the actus reus elements of the crime. Copyright © 2020 by Nelson Education Ltd 3-25. Becoming a Party to a Criminal Offence Copyright © 2020 by Nelson Education Ltd 3-26. Becoming a Party to a Criminal Offence Individuals need not commit an offence to be convicted. CCC section 21(1): anyone is a party to a crime who I. actually commits it, II. aids another person to commit it, or III. abets (encourages) any person to commit it The Supreme Court has said that the person who aids and/or abets a murder is equally as guilty as a person who actually commits it. Copyright © 2020 by Nelson Education Ltd 3-27. The Use of Criminal Law as a Preventative Tool: Inchoate Offences Copyright © 2020 by Nelson Education Ltd 3-28.  Inchoate Offences Inchoate crime: when a person attempts to bring about a crime but is unsuccessful in doing so There are three types of Criminal Code inchoate offences: 1. Counselling: Counseling someone to commit a crime is itself a criminal offense, regardless of whether the crime is ultimately committed or if the person being counseled is influenced. The focus is on the accused's intent, and changing one's mind or renouncing criminal intent after the counseling is completed does not prevent conviction. procuring, soliciting, or inciting another to commit a crime (that may not be committed) 2. Criminal Attempt: an individual does (or omits to do) anything for the purpose of carrying out a previously formed intention to commit a crime. An attempt occurs when an individual takes steps toward committing the crime, beyond mere preparation, and those steps are not too remote. Even if the crime is impossible to complete, such as trying to steal a disabled vehicle, the accused can still be charged with attempted crime if there was genuine intent and a likelihood of future attempts. 3. Conspiracy: An agreement by two or more persons to commit a criminal offence. The actus reus is the agreement, while the mens rea is the intent to both agree and implement the Copyright plan. © 2020 If oneEducation by Nelson participant Ltd is an undercover officer 3-29 without intention to act,. the conspiracy cannot be established. However, if all Inchoate Offences Civil liberty concerns: Criminal law should not punish people for entertaining evil thoughts. However, society has the right to prevent people from translating evil thoughts into acts. Problem: determining when the state is justified in charging someone who has not yet committed a crime. Accused persons must take some form of action that manifests their intention to commit a crime (counselling, attempt, conspiracy). Copyright © 2020 by Nelson Education Ltd 3-30. Defences to a Criminal Charge Copyright © 2020 by Nelson Education Ltd 3-31. Defences to a Criminal Charge A patchwork of defences ensures that those who have a justification or excuse for their conduct are either acquitted or treated more leniently. There are several distinct defences of an accused in a criminal trial. They include mistake of fact, duress, intoxication, and not criminally responsible on account of mental disorder (NCRMD). Copyright © 2020 by Nelson Education Ltd 3-32. Defences to a Criminal Charge Mental Disorder as a Defence to a Criminal Charge A mental disorder means that the accused lacks the capacity to appreciate the nature of the act being committed. A NCRMD accused may be granted: 1. An absolute discharge 2. A conditional discharge 3. An order holding them in custody in a psychiatric facility Copyright © 2020 by Nelson Education Ltd 3-33. General Defences to a Criminal Charge The accused made an honest mistake that resulted in a crime. In cases of sexual assault, Mistake a person had to have taken reasonable steps to of fact ascertain the complainant was consenting. Ignorance of the law is not mistake of fact. Copyright © 2020 by Nelson Education Ltd 3-34. General Defences to a Criminal Charge Intoxication Intoxication may not be raised as a valid defence by those who claim that substances impaired their ability to control their conduct. It is a defence if it can be proved it prevented the accused from forming mens rea. That is, it can be a defence if it prevented the accused from forming the intent required for a specific offence. Copyright © 2020 by Nelson Education Ltd 3-35. General Defences to a Criminal Charge It is unfair to convict individuals of a crime if they did not have a choice at the time of the act. Necessity The accused commits a lesser evil of a crime to avoid the occurrence of a greater evil. The accused is considered to have acted involuntarily from a moral viewpoint. Duress The accused or another person such as a spouse or child must be subjected to a threat of death or serious bodily harm. Copyright © 2020 by Nelson Education Ltd 3-36. General Defences to a Criminal Charge Provocation A partial defence, raised only when the charge is murder. If successful, it results in manslaughter conviction. The accused must have killed in the heat of passion caused by sudden provocation. The provocation has to be sufficient to deprive an ordinary person of the power of self-control. The 2015 amendments to the Criminal Code restrict the provocation defense to cases where the victim's conduct involves a serious indictable offense punishable by at least five years in prison. This change aims to limit the defense's use in "crimes of passion" and focuses it on more severe offenses with aggravating circumstances. The updated law makes the provocation defense more applicable in situations involving serious offenses like assault, sexual assault, robbery, extortion, criminal harassment, and threats Copyright © 2020 by Nelson Education Ltd 3-37. General Defences to a Criminal Charge Self-defence The accused must show he or she: Was unlawfully assaulted did not provoke the attack Used force in self-defence Did not intend to inflict death or grievous bodily harm Used force that was no more than necessary to defend oneself Copyright © 2020 by Nelson Education Ltd 3-38.  General Defences to a Criminal Charge In cases of self-defence involving domestic violence: The Supreme Court of Canada ruled that the trial judge had acted appropriately in permitting an expert witness to testify about the “battered woman syndrome” as a means of assisting the members of the jury to assess the reasonableness of beliefs and actions. The Supreme Court of Canada has emphasized the need to ensure that women who are the victims of domestic violence are judged by the standards of “reasonable women” who face the same circumstances of ongoing abuse and not by the standards of “reasonable men The Court suggested that such evidence should assist the jury in understanding several key issues: (1) why an abused woman might remain in an abusive relationship, (2) the nature and severity of the violence in such relationships, (3) the woman’s 3-39 ability to perceive the danger posed by her partner, and (4) Summary A crime consists of a prohibition against certain conduct and a penal sanction The sources of criminal law are: (i) legislation, and (ii) judicial decisions. Under the Canadian Constitution, the Parliament of Canada has the exclusive authority to enact “criminal law and the procedures relating to criminal matters.” Copyright © 2020 by Nelson Education Ltd 3-40. Summary There is a significant difference between “true crimes” that arise under the Criminal Code and regulatory offences. The enactment of the Canadian Charter of Rights and Freedoms has given judges the power to invalidate criminal law that unjustifiably infringes on an accused person’s Charter rights. Copyright © 2020 by Nelson Education Ltd 3-41. Summary Each criminal offence can be analyzed in terms of its actus reus and mens rea elements. The actus reus consists of three components: conduct, circumstances, and consequences. Mens rea may be subjective or objective. An individual may become a party to a criminal offence in a number of different ways: These include committing an offence, aiding and/or abetting an offence, becoming a party to an offence by way of common intention, or counselling an offence that is committed. Copyright © 2020 by Nelson Education Ltd 3-42. Summary Three inchoate offences permit the police to intervene before a particular crime is committed. A successful defence of NCRMD is not an acquittal. The most important defences to a criminal charge include mistake of fact, intoxication, necessity, duress, provocation, and self-defence. Copyright © 2020 by Nelson Education Ltd 3-43.