chapter 2: criminal law and criminal justice in canada...
TRANSCRIPT
Chapter 2: Criminal Law and Criminal Justice in Canada
Honour killings• Honour killings defined as "culturally motivated killings carried out by relatives
in order to 'cleanse' the family name and restore the family socalled honour."
• How common are honour killings? Prior to the case involving Mohammad Shafia, Tooba Yahya, and Hamed Shafia in January 2012, it was estimated that at least seven men in Canada were serving life sentences for what is referred to as honour killings.
• Some support a separate provision in the Criminal Code for honour killings. This is based on the fact that the International Convention on the Elimination of Discrimination Against Women (an initiative of the United Nations) recognizes honour killings as a distinct form of violence against women.
• Critics of creating a separate Criminal Code provision argue that it “would create a separate category for women from certain cultures, apart from the rest of Canadian society.” The Canadian government has no intention of creating a separate provision.
Substantive Criminal Law - It is a body of legislation that declares which actions will be punished by the state.- It legally defines crime. - Basic values which people agree upon in society - It provides the framework for defining criminal acts. - It is not a static entity, as it is subject to interpretation by various actors.- It is important because it legally defines crime in our society.
Procedural Criminal Law - Describes how law enforcement agents must act in dealing with an offence. - It tells us how the rights and duties of individuals can be enforced. - It focuses upon the criminal process. - Procedural safeguards are designed to protect the accused, and thy can be found in
the Charter of Rights and Freedoms. - Many people use the term ‘due process’ to refer to procedural criminal law. - Where is most procedural law located in the Charters of Rights and Freedoms?
• Most procedural criminal law is found in Sections 8 to 14 of the Charter of Rights and Freedoms.
- It is important as it signals “the primacy of demonstrating legal guilt rather than factual guilt and raises a number of obstacles to conviction in order to protect the rights of criminal suspects.”
Sexual Assault
What were the charges made to the substantive law regarding sexual assault in 1983? Bill C 27 Recognition rape could be male or female and a spouse can be charged with rape In Rape was replaced with 3 degrees of sexual assault:
• Sexual Assault Level 1 o Refers to incidents in which the victim suffers the least physical injury. Max 10 years imprisonment o Hybrid Offense Crown prosecutor has the power to discretion to proceed by way of incident or summary offense
• Sexual Assault Level 2o Involves the use of a weapon, threats to use a weapon, or bodily harm. Max 14 years punishment
• Sexual Assault Level 3 o Involves wounding, maiming, disfiguring, or endangering the life of the victim.
Some of the procedural issues are: • The victim’s past sexual conduct.• The intoxication of accused (R. v. Daviault).
o Supreme Court of Canada’s decision was based largely on the assumption that the defendant was so drunk that the situation wouldn’t happen again
o Over the next few months, a number of men used this defense successfully. As a result this defense was eliminated
o General intent but not specific intent • The victim’s counseling records (R. v. Carosella).
o Supreme Court threw out a case in which the victims counseling records had been destroyed
o Bill C46 in an attempt to clarify when records concerning the victim should have restricted access
o Introduced 2 stage application process • The accused’s honest belief (R. v. Darrach).
o Defendant argued that he had been denied a fair trial because he had been unable to raise specific aspects of his prior sexual relationships with the complainant
o Honest but mistaken belief, that the incident was consensual. Some unfair trials for men
The Sources of the Criminal Law in Canada There are 2 sources of the criminal law in Canada
1. Common Law o Important competent of the substantive law in Canada o Created during the 12th century o Strong central government o Judges made law, in different territories and apply “Kings Law”o Eventually Judges would get together to compare decisions and get on
common ground2. Precedent
o Stare Decisis – based on situations of similar facts (decisions influenced by previous cases
o This law is common to allo Lower courts follow decisions of higher courtso Equal rank courts follow each other's decisions if possible
Written Sources of the Criminal Law in CanadaThere are 4 written sources of criminal law in Canada
1. The Constitution The fundamental principles that guide the application and enactment of laws.
2. Statue Law Statutes are laws that prohibit or mandate certain acts. They are systematically codified and placed in a single volume, such as the Criminal Code.
o In order to change laws, government must either modify existing laws or introduce new ones by enacting statues
o Through se of statues laws are created, changed or eliminated3. Case Law the application and interpretation of laws in a particular case.
o Every time a judge in Canada makes a decision in a court case he or she has the discretion to interpret the relevant statues
4. Administrative Law Laws written by regulatory agencies.o Written by regulatory agencies that have been given power by
governments to develop and enforce rules in specific areas, such as environment
The Rule of Law The rule of law is a “sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority”
Basic Elements of Rule of Law 1. Scope of the Law
No privileged exemptions to the law. All people come under the rule of law Equality before the law.
2. Character of the Law The law should be clear enough for people to understand and made public.
3. Institution of the Law Certain rules must exist for the law to be fair and just. e.g. independent judiciary, written laws, and the right to a fair hearing
Access to Justice • Access to justice involves the idea of legal equality, found in Section 15 (equality
section) The various movements involving access to justice are: – Legal aid
• The focus is on the availability of the formal legal means of access to justice by increasing accessibility to legal aid
– Public interest law – Emphasizes group participation in law– Involve people who are underrepresented in law
– Informal justice– Attempts to create alternatives to the traditional criminal justice
system e.g., restorative justice
Charter of Rights and Freedoms - April 17, 1982, mainly to the protection of the legal rights of criminal suspects
and convicted people. Establishes and enforces fundamental rights, fair trial, due processes, free from cruel punishment
Principals of Fundamental Justice Section (7) of the Charter of Rights and Freedoms – the Supreme Court of Canada has determined that the principles of fundamental justice are broader than the rights provided by the Charter.
- This section of the Charter of Rights and Freedoms has been applied by the Supreme Court of Canada in the following 4 areas: 1. Right to silence.
- Use of undercover agents, jailhouse informants.2. Right of disclosure.
- Crown must make evidence available to defence.3. Right to full answer and defence
- Right to question the complainant.4. Not guilty by reason of insanity.
- Detention must be reviewed every 12 months.
Corpus Delecti Corpus delecti refers to, literally, the 'body of crime.'
- In order to convict someone, the state must usually prove each of the following seven elements:
(1) Legality An international act or omission in violation of criminal law,
committed without defense or justification and sanctioned by the state
(2) Mens Rea Referred to as the mental element of crime, guilty mind Idea that a person has the capacity to control his or her behavior
and has the ability to choose among different courses of action Intent commonly confused with motive. Intent refers to
individual’s mental resolve to commit a crime. Motive refers to the reason for committing act.
Motive provides (1) evidence of intent be establishing a good reason to why (2) assists the judge in sentencing the accused
Intent (1) General Intent: interred from the action or inaction of the accused. Must prove that the accused committed the prohibited act intentionally and with the necessary knowledge of the material circumstances. (2) Specific Intent: requires prosecution to prove beyond a reasonable doubt.
3 distinct levels or degrees a) Intent – Intentionally causing harm (willingness, intentional) b) Knowledge used to indicate that the accused possessed an
awareness of a particular circumstance c) Recklessness refers to a situation in which an individual
violates a law simply by lacking the appropriate care about and attention to something he or she is doing.
(3) Actus reus
This is the physical or action element of a crime, and it is generally referred to as the guilty act; physical crime
(4) Concurrence of intent and action Official element of crime, concurrence requires that intent and both
precede and be related to the specific prohibited action or inaction or inaction that was or was not taken
(5) Harm must be done Criminal only if it’s harmful; matter of injury to the public Problem with victimless crimes, violates morality
(6) An act must cause the outcome Conduct produced crime
(7) Punishment must be specifically stated
Disclosure - There is a duty upon the prosecution to provide all evidence it will be using at
trial to the defence, as well as any other evidence the defence might find useful. - Disclosure is one of the most important features of our criminal justice system. - The disclosure of relevant information among all parties involved in a court case
is an important factor in the fairness and efficient of our criminal justice system (Law Reform Commission of Canada 1974)
- There have been four major cases involving the issue of disclosure: (Pg. 52)R. v. Marshall (1971) R. v. Stinchcombe (1991) R. v. O'Connor (1995) R. v. Murray (2000) R. v. McNeil (2009)
Legal Defences Excuse Defences
• Conduct is wrong but• Because certain circumstances exist, the actor is excused from criminal liability• Defendant admits crime but denies criminal responsibility
o Age The law considers people (children) under the age of 12 to lack
criminal responsibility. Adulthood begins at 18o Mental Disorder
Lacks mens rea to commit offence Burden of proof rests on party that raises the issue Self induced crime (drugs, alcohol) If it is determined that the accused was incapable of knowing that
act was wrong, the defense may succeed o Automatism
Refers to unconscious or involuntary behavior. People who are in a dissociative state are not in conscious control of their bodily
movements and thus they act abnormally. Cannot be a mental disorder or drugs or alcohol
o Mistake of Fact Someone who commits an illegal act while believing that certain
circumstances exist may use the defence of mistake of fact Mistake was honest and no offence would have taken place if
know otherwiseo Mistake of Law
Ignorance of law is no excuse, everyone is presumed to know the law. It concerns an error regarding the legal status of circumstance or fact
Justification Defences• Conduct is not wrong in context in which it occurs.• Defendant admits committing crime but argues that act was justified under the
circumstances.o Duress
o Exists when the wrongful threat of one person makes another person commit a crime he or she would not otherwise have committed when there was an imminent threat of death or bodily harm
o Committed offense because they believed they were in danger o Not apart of planning o Compulsion and common law defence
o Necessityo Cases of duress, the danger is caused by intentional threats of
bodily harm, where in case involving necessity the danger is cause by forces of nature or human conduct other than the intentional threats of bodily harm
o Had no reasonable legal alternatives proportion between harm inflicted and harm avoided
o Self Defenseo Defending oneself as well as others and property, justifies the use
of force against another persono There must be an unlawful assaulto Accused must have been under a reasonable fear of death o The accused must have believed on reasonable grounds that there
was no other way to survive o Provocation
o Involves wrongful at or insult that deprives an ordinary person of the power of self control
o Provoked by offender, time of passiono Entrapment
o Police officer or government agent deceives a defendant into committing a wrongful act. In order for police to gain information
The difference between Excuse and Justification is that these "is that where conduct is justified, it is not wrong in the context in which it occurs," whereas conduct that is excused is wrong "but because certain circumstances exist, the actor is excused from criminal liability"
Classification of Offences Summary Offences
• Minor offences• Trial by provincial court judge• Incarceration not exceeding 6 months• Imprisonment in a provincial facility• Maximum fine of $2,000• Charge must be laid within 6 months of offence
Indictable Offences• More serious offences• Absolute jurisdiction offences• Supreme Court exclusive indictable offence • Election indictable offences
Hybrid Offences• Prosecutors have discretion on how to proceed • Based on prior record, aggravating and mitigating factors• Influence of police officers
Anti Gang Legislation Original piece of anti gang legislation: Bill C95 (1997)
- This law applied to any or all of the members of a gang, which engage in or have, within the preceding 5 years, engaged in the commission of a series of such offense
- Participating in a criminal organization could receive up to 14 years in prison Amended by Bill C24 (2001) Organized Crime and Protection of Justice System Participants Act (2009) Tackling Auto theft and Property Crime Act (2010) Penalties of Organized Drug Crime Act (2012)
Self Defence and Defence of Property - Person who previously shoplifted caught, feet tied and placed in store delivery
van by owner and two employees.- Police charge the owner and two employees with assault, forcible confinement,
kidnapping, and carrying concealed weapons (box cutters). - Kidnapping and weapons charges later dropped.- All three defendants acquitted.- Shoplifter convicted and sentenced to 30 days.- Parliament proposes revision to the selfdefence and defence of property sections
of the Criminal Code.- Initial revisions contained in Bill C60, reintroduced as Bill C26.