Criminal offences

B Phaneuf 2014

Levels of Offences

There are three levels of crimes in Canada:

1. Summary Conviction Offences – crimes that are considered less serious and carry a lighter penalty. Usually proceed very quickly through the system and are tried in Provincial court before a judge alone. Fine up to $2000 and/or six months in Prison.

2. Indictable Offences – crimes that are more serious than a summary conviction offence and carry a heavier penalty.

- Maximum penalties from 2 years to life in prison.

- Sometimes minimum penalties are imposed, such as four years for armed robbery where a firearm is used or life in prison for murder.

- For offences with a maximum penalty of less than five years, the trial will be heard in Provincial Court or the Court of Queen’s Bench before a judge alone.

- For offences with a maximum penalty over five years, the accused can be tried by judge and jury or judge alone.

- The most serious indictable offences, such as murder and treason, must be tried in Court of Queen’s Bench.

3. Hybrid Offences – an offence that the Crown can try either as a summary or indictable offence.

- The criminal code makes it clear when an offence is considered hybrid.

- Treated as indictable until charges are laid in court, then the Crown must decide how to treat the offence.

- Decision depends on the circumstances of the case.

Offences Against The Person Contained in Part VIII of the criminal

code, it includes crimes in which the victim is threatened, injured or killed.

Violent crime is actually decreasing in Canada, but it is of course considered very serious and therefore carries with it the stiffest penalties.

Here are some examples of offences against the person…

Homicide

Homicide is the killing of another person, directly or indirectly.

It can be culpable homicide, which means the accused can be held legally responsible or non-culpable homicide, death caused by an unforeseeable accident.

Murder, the intentional killing of another human being, is a form of culpable homicide.

The Criminal Code classifies murder into two categories,

First-degree murder includes a killing that results from any one of the following situations:

1. It is planned and deliberate2. One person hires another to commit

murder3. The victim is a peace officer, prison

employee or other person employed for the preservation and maintenance of the public peace.

4. The murder is caused while committing or attempting to commit another serious offence.

Second-degree murder is defined as any murder that does not fit into one of the four situations listed under first-degree murder.

Both first and second-degree murder have a minimum sentence of life imprisonment. The difference is when they can apply for parole; after 25 years for first degree and usually, after 10 for second-degree.

Infanticide, the killing of a newborn infant by the child’s mother, is also culpable homicide. For the crime to be considered infanticide, the accused must be the natural mother of the victim, the victim must be less than 12 months old, and at the time of the killing the accused must have been suffering from a mental disturbance caused by not being able to recover from giving birth to the victim. Maximum penalty is five years.

Manslaughter is any culpable homicide that is not murder or infanticide.

The Actus Reus of the offence consists of killing someone through a wrongful act, even if the killing was not intentional.

The Mens Rea is that any reasonable person could have foreseen that the wrongful act would pose a risk of bodily harm that was neither insignificant or temporary.

Can also be criminal negligence causing death, but not both!

Sometimes a charge of murder can be reduced to manslaughter if the accused can show provocation… words or actions that could cause a reasonable person to behave irrationally or lose self control.

Note that there is no cooling off period!

Assault

Most common form of violent crime in Canada. Assault comprises any one of the following actions:- Intentionally applying force to another person,

either directly or indirectly, without that person’s consent.

- Attempting or threatening, by act or gesture, to apply force

- Accosting or impeding another person, or begging, while openly wearing or carrying a weapon or an imitation of a weapon.

The criminal code classifies assault according to three levels of severity:

Level 1 – hybrid offence, carries max. of 5 years. Touching without consent or threatening a person with violence.

Level 2 – assault with a weapon or causing bodily harm, injuring a person in a way that has serious consequences for the victim’s health or comfort.

Level 3 – Aggravated assault, which involves wounding, maiming, disfiguring or endangering the life of the victim.

Sexual Assault

• Touching of a sexual nature that is not invited or consensual. It also has three levels:

Level 1 – A hybrid offence, the most common and the one where the victim suffers the least physical injury. 97% of all cases of sexual assault. Max penalty of 10 years.

Level 2 – Sexual assault with a weapon, threats to a third party or causing bodily harm. Basically involves weapons, threats or physical injury. Max. sentence of 14 years.

Level 3 – Aggravated sexual assault, which involves wounding, maiming, disfiguring or endangering the life of the victim.

Motor Vehicle Offences

Dangerous operation of a motor vehicleThe crown must prove that the safety and lives of others

were endangered because the driver failed to exercise the same care a prudent driver would have exercised under the same conditions.

This is a hybrid offence.Failure to stop at the scene of an accidentAny one involved in an accident who doesn’t stop, offer

assistance and give their name and address, is presumed to show intent to escape civil or criminal liability. Commonly known as “hit and run”, it is a hybrid offence.

Impaired drivingIt is an offence to operate a motor vehicle while the amount

of alcohol in the bloodstream exceeds 80 milligrams in 100 milliliters of blood or .08

Police can demand that anyone, who they have reasonable grounds to believe is operating or has operated a motor vehicle, take a breathalyzer test. A blood sample can be given in place of a breath sample. Refusing to provide a breath sample is an offence.

This is a hybrid offence.

Offences Against Property

Theft – taking property permanently or temporarily, without the owner’s permission.

The item must be taken without color of right, that is, the honest belief that a person owns or has permission to use the article in question. You can also commit theft by conversion, such as keeping money mistakenly deposited into your account.

Robbery is theft with the use or threat of violence.

Breaking and Entering – breaking or opening something in order to enter the premises without permission with the intent to commit an indictable offence. Punishable by up to life in prison if the B and E took place in a dwelling house.

Other Offences

Mischief – willfully destroying or damaging property or data, interfering with the lawful use of property or data, or interfering with any person in the lawful use of data or property. Ie. Vandalism. Hybrid offence!

Public Mischief – providing false information that causes the police to start or continue an investigation without cause. Ie. Falsely reporting a stolen car.

Fraud – intentionally deceiving someone in order to cause a loss of property, money or service.

Prostitution – the act of engaging in sexual services for money. Actually, it is not illegal in Canada, but soliciting is, communicating for the purpose of prostitution, in a place open to public view. Keeping a “bawdy house”, a place kept, occupied or used by a person for the purpose of prostitution or the practice of indecent acts.

Gambling – not a criminal offence itself, but keeping a “disorderly house” is, a common bawdy, betting or gaming house.

Drug Offences

Listed under the “Controlled Drugs and Substances Act”

Possession – knowledge and control. A person must know what the item is and have some measure of control over it. They may be found in possession even if he or she gave the item to another person. Finally, you may be found to be in possession by consenting to its possession by someone else.

Trafficking – a criminal offence that involves selling, giving, transporting or distributing a controlled substance or an authorization for a controlled substance. The crown must prove that the accused possessed the controlled substance with the intention of trafficking.

Money Laundering – transferring cash or other property to conceal its illegal origin.

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