CRIMINAL CRIMINAL LAWLAW

What is a crime?What is a crime?

Dictionary.com/crime

•Whatever Parliament Whatever Parliament defines as a crime.defines as a crime.

•Any action, or omission of Any action, or omission of an action that is prohibited an action that is prohibited

by lawby law

•Ex. Action - stealing somethingEx. Action - stealing something•Ex. Omission – not taking care of a baby.Ex. Omission – not taking care of a baby.

Common definition:Common definition:

a wrongful act that must be controlled for a wrongful act that must be controlled for the protection of society as a whole.the protection of society as a whole.

Criminal Offences Prosecuted by the Crown (on behalf of society)

Crown prosecutorCrown attorneyCrown Counsel

3 main areas of Criminal law 3 main areas of Criminal law ‘coverage’‘coverage’

Protection of Protection of PeoplePeople

Protection of Protection of PropertyProperty

Protection of Protection of MoralityMorality

Changes to the Law Changes to the Law (Chapter 1)(Chapter 1)

Once considered criminal:Once considered criminal:

Sodomy Sodomy AbortionAbortion SuicideSuicide

PunishmentPunishment

Should the punishment = the harm Should the punishment = the harm caused? (An eye for an eye?)caused? (An eye for an eye?)

What is unacceptable punishment?What is unacceptable punishment? Capital punishmentCapital punishment Corporal PunishmentCorporal Punishment

The Criminal CodeThe Criminal Code

Defines offences Defines offences

Sets out minimum & maximum Sets out minimum & maximum

penaltiespenalties

Is open to interpretationIs open to interpretation

Case law is criticalCase law is critical

What happens when harm is What happens when harm is committed, but not defined committed, but not defined

in the Criminal code?in the Criminal code?

Ex. Knowingly Ex. Knowingly

transmitting transmitting HIVHIV

case pg. 232 Charles Ssenyongacase pg. 232 Charles Ssenyonga

pg.234 Henry Cuerrierpg.234 Henry Cuerrier

Justice reluctant to extend the Justice reluctant to extend the

ambit of offenseambit of offense

(scope of legal prohibition)(scope of legal prohibition)would not proceed with Aggravated sexual assault would not proceed with Aggravated sexual assault

since the act did not fit the Actus Reus of the offencesince the act did not fit the Actus Reus of the offence

Criminal Code

PART VIII: OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

Aggravated sexual assault

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the

complainant.

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146

A sample of the text in the Criminal CodeA sample of the text in the Criminal Code

A website with the A website with the Criminal code (CanLii)Criminal code (CanLii)

http://www.canlii.org/ca/sta/c-http://www.canlii.org/ca/sta/c-46/46/

Assault is defined as theAssault is defined as the ‘‘non-consensualnon-consensual

application of application of forceforce by one person to by one person to

another.’another.’

Justice said,Justice said,“the law of assault is too blunt an “the law of assault is too blunt an

instrument to be used to excise AIDS instrument to be used to excise AIDS from the body politic. If no other from the body politic. If no other

section of the Criminal Code catches section of the Criminal Code catches the conduct complained of, then it is the conduct complained of, then it is a matter for Parliament to address a matter for Parliament to address

through legislation.”through legislation.”

Upon whom does the Onus fall?

•The person with the disease?

•The person willing to engage in sexual activity at their own risk?

Consider: attitudes, values, realities

It took a decision by the It took a decision by the Supreme Court of Canada in Supreme Court of Canada in

the case R v. Cuerrier to the case R v. Cuerrier to resolve the question.resolve the question.

The Law The Law pg.234 pg.234

But he had her consent…But he had her consent…

Was is ‘vitiated by fraud’?Was is ‘vitiated by fraud’?

..was the consent weakened or debased by ..was the consent weakened or debased by the fact that she did not know he was HIV the fact that she did not know he was HIV positive?positive?

Cuerrier was charged with Cuerrier was charged with Aggravated Aggravated AssaultAssault..

Not Not Aggravated Aggravated SexualSexual Assault Assault since the since the sexual component was not an offence.sexual component was not an offence.

Offences and DefensesOffences and Defenses OffencesOffences are acts that violate the law. A criminal offence is a are acts that violate the law. A criminal offence is a

violation of the Criminal Code. violation of the Criminal Code.

A A defensedefense is an explanation or excuse for your commission of is an explanation or excuse for your commission of an offence. If your defense is accepted, you will be acquitted. an offence. If your defense is accepted, you will be acquitted.

Mitigating circumstancesMitigating circumstances (weaker than defenses) are factorss (weaker than defenses) are factorss that reduce the seriousness of the offence or serve as partial that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the charge or the sentence. excuses. They generally reduce the charge or the sentence.

For example you are charged with drinking and driving but you For example you are charged with drinking and driving but you have a perfect driving record and you volunteer at a shelter. have a perfect driving record and you volunteer at a shelter.

Aggravating circumstancesAggravating circumstances are factors that make the offence are factors that make the offence worse. They work against the accused. For example, you are worse. They work against the accused. For example, you are caught shoplifting and it is the 7caught shoplifting and it is the 7thth time you have been caught time you have been caught in 3 years.in 3 years.

AssaultAssault

Simple assault (max 5 yrs) – like a hit, slap Simple assault (max 5 yrs) – like a hit, slap or push that does not result in lasting bodily or push that does not result in lasting bodily harm. (not more than a bruise or scratch)harm. (not more than a bruise or scratch)

Assault causing bodily harm (max 10 yrs) – Assault causing bodily harm (max 10 yrs) – Assault resulting in harm such as broken Assault resulting in harm such as broken limb.limb.

Aggravated Assault (max 15 yrs) –Assault Aggravated Assault (max 15 yrs) –Assault resulting in maiming or disfiguring resulting in maiming or disfiguring permanently affecting victim. permanently affecting victim.

Sexual Assault (max 10 yrs.) – non-consensual Sexual Assault (max 10 yrs.) – non-consensual sexual touch. (Does not have to be violent)sexual touch. (Does not have to be violent)

Sexual Assault Causing bodily harm (max Sexual Assault Causing bodily harm (max 14yrs) – Sexual assault and causing bodily 14yrs) – Sexual assault and causing bodily harm (more serious than a scratch or bruise.harm (more serious than a scratch or bruise.

Aggravated sexual assault (max life) – sexual Aggravated sexual assault (max life) – sexual assault and wounding, maiming or disfiguring. assault and wounding, maiming or disfiguring. (if a firearm is involved, min 4 yrs)(if a firearm is involved, min 4 yrs)

Sexual Sexual AssaultAssault

Murder (see handout)Murder (see handout)

11stst degree degree 22ndnd degree degree Manslaughter Manslaughter 22ndnd degree may be reduced to degree may be reduced to

manslaughter if manslaughter if provocationprovocation can be can be proven.proven.

Assault: the Legal Assault: the Legal Perspective Perspective

► The offence: an assault is an unwelcome interference with a person. It The offence: an assault is an unwelcome interference with a person. It is a form of violence. is a form of violence.

► The offence of assault varies from The offence of assault varies from Simple AssaultSimple Assault to to Aggravated Aggravated Sexual AssaultSexual Assault..

This definition sets out the elements of the offence.This definition sets out the elements of the offence. ► Assault causing bodily harmAssault causing bodily harm occurs when: occurs when:

► a person a person intentionallyintentionally uses force of any sort against uses force of any sort against another person another person

► this is done without the victim's this is done without the victim's consentconsent or or agreement agreement

► the victim is injured and the injury is something more the victim is injured and the injury is something more serious and long-term than a scratch or small bruise.serious and long-term than a scratch or small bruise.

► Source: section 267 of the Source: section 267 of the Criminal CodeCriminal Code

What does the word What does the word intentionallyintentionally mean? mean?

…well, from case law, we know what it is …well, from case law, we know what it is notnot!!

This is what two courts have said about intention: This is what two courts have said about intention:

► A reflex action lacks the necessary intent to A reflex action lacks the necessary intent to constitute an assault. constitute an assault. Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Appeal) Appeal)

► An accused An accused does not have to intenddoes not have to intend to cause to cause bodily harm. What is necessary is that a bodily harm. What is necessary is that a reasonable personreasonable person would be able to predict would be able to predict that his or her actions posed a risk of bodily that his or her actions posed a risk of bodily harm. harm. Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Canada) Canada)

How does the court decide if a How does the court decide if a victim has given victim has given consentconsent? ?

This is what two courts have said about consent. This is what two courts have said about consent. ► A person cannot consent to being injured in a A person cannot consent to being injured in a

serious way.serious way.Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme

Court of Canada)Court of Canada)

► If the victim provokes the assault, the courts If the victim provokes the assault, the courts have said that the victim consented to the have said that the victim consented to the assault. assault. Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court) Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court)

► Of course the response to the provocation must be reasonable. Being Of course the response to the provocation must be reasonable. Being slightly provoked does not give right to smashing a person’s head.slightly provoked does not give right to smashing a person’s head.

►All elements of the definition of All elements of the definition of the offence need to be proven by the offence need to be proven by the Crown in order to convict a the Crown in order to convict a person of this offence. person of this offence.

►Those elements that are in doubt Those elements that are in doubt become legal issues. become legal issues.

►For example, whether or not the For example, whether or not the victim "consented" is often a victim "consented" is often a legal issue in cases of assault.legal issue in cases of assault.

What does the law say about What does the law say about acting in self-defence? acting in self-defence?

Here is how the defence is defined: Here is how the defence is defined:

►Self-defenceSelf-defence occurs when: occurs when: ► a person attacks you when you have done a person attacks you when you have done

nothing to nothing to provokeprovoke or cause the attack or cause the attackSource: section 34 of the Source: section 34 of the Criminal CodeCriminal Code

► you defend yourself from a clear and present you defend yourself from a clear and present danger withdanger with onlyonly with as much force as is with as much force as is necessary to resist and you do not intend to necessary to resist and you do not intend to cause death or grievous bodily harmcause death or grievous bodily harmSource: section 34 of the Source: section 34 of the Criminal CodeCriminal Code

What kinds of behaviour could What kinds of behaviour could be considered provocation for be considered provocation for

an attack? an attack? ► Provocation includes provocation by blows, Provocation includes provocation by blows,

words or gestures. words or gestures.

Source: section 36 of the Source: section 36 of the Criminal CodeCriminal Code

How can a judge know how How can a judge know how much force was necessary in the much force was necessary in the

circumstances? circumstances? ► This is a difficult decision to make and it This is a difficult decision to make and it

cannot be made without looking at all the cannot be made without looking at all the facts. However the following interpretation facts. However the following interpretation by a court suggests the court does not by a court suggests the court does not demand a completely rational reaction: demand a completely rational reaction:

► A person under attack is not expected to A person under attack is not expected to stop to weigh or measure his or her stop to weigh or measure his or her reactions perfectly or precisely. reactions perfectly or precisely. Case source: R. v. Baxter (1975), 33 C.R.N.S. 22 Case source: R. v. Baxter (1975), 33 C.R.N.S. 22 R v. Martin (1985) 47 C.R. (3d) 342 (Que. C.A.)R v. Martin (1985) 47 C.R. (3d) 342 (Que. C.A.)

► An accused person who is successful An accused person who is successful in arguing self-defence will be in arguing self-defence will be acquitted of the charge. acquitted of the charge.

Sexual Assault Sexual Assault the Legal Perspectivethe Legal Perspective

How does the law define a sexual assault?How does the law define a sexual assault? Sexual assault occurs when... Sexual assault occurs when...

a person intentionally "applies force" to another a person intentionally "applies force" to another person person

&&this is done without the victim's this is done without the victim's consentconsent or or

voluntary agreement voluntary agreement &&

sexual activitysexual activity is involved. is involved. Source: section 265 of the Source: section 265 of the Criminal Code. Criminal Code. See also s. 271, 272, 273. See also s. 271, 272, 273.

Thus it is a criminal offence to engage in sexual Thus it is a criminal offence to engage in sexual activity with another person who does not consent. activity with another person who does not consent.

What does "apply force" mean in a sexual What does "apply force" mean in a sexual assault situation? assault situation?

Think of "force" as "physical contact". Think of "force" as "physical contact". There does not have to be a violent There does not have to be a violent demonstration of force. Touching certain demonstration of force. Touching certain body parts, for example, also fits the body parts, for example, also fits the definition of "applying force". definition of "applying force".

What does "sexual activity" mean? What does "sexual activity" mean?

The part of the body touched, the The part of the body touched, the nature of the contact, the nature of the contact, the surrounding circumstances including surrounding circumstances including what was said - these are all relevant what was said - these are all relevant factors in determining if there was a factors in determining if there was a sexual aspect to the "physical sexual aspect to the "physical contact". contact".

The defence: in many cases the accused person argues that the

victim consented, or agreed, to the sexual activity.

Most victims will say they didn't consent, and most accused Most victims will say they didn't consent, and most accused persons will say the victim did consent. Does the law help persons will say the victim did consent. Does the law help

people interpret the meaning of "consent"? people interpret the meaning of "consent"?

The first source to consult for a definition The first source to consult for a definition of what is and isn't "consent" is the of what is and isn't "consent" is the Criminal Code. Criminal Code.

Note that the Note that the CodeCode uses the word uses the word "complainant" rather than "victim". "complainant" rather than "victim".

Consent with regards to sexual Consent with regards to sexual activityactivity

Consent: Consent: the voluntary agreement the voluntary agreement of the complainant to engage in the of the complainant to engage in the sexual activity in questionsexual activity in question

Source: section 273.1, subsectionSource: section 273.1, subsection (1) of the (1) of the Criminal Criminal CodeCode

No consent is obtained whereNo consent is obtained where

The complainant is incapable of consenting to the The complainant is incapable of consenting to the activity; activity;

The complainant expresses, by words or conduct, a lack The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or of agreement to engage in the activity; or

The complainant, having consented to engage in sexual The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. agreement to continue to engage in the activity. Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Criminal CodeCriminal Code

This is also referred to as the This is also referred to as the NO NO

MEANS NO!MEANS NO! law. The last clause states law. The last clause states

that if consent is given but then that if consent is given but then

withdrawn during the activity, then this withdrawn during the activity, then this

must be taken as a must be taken as a NONO..

One can imagine that there are situations One can imagine that there are situations where there is confusion about this issue where there is confusion about this issue and the accused person honestly thinks and the accused person honestly thinks the other person is consenting. What then? the other person is consenting. What then?

When this happens, the issue changes. The When this happens, the issue changes. The complainant says there was no consent. complainant says there was no consent. The accused's reply is that even if there The accused's reply is that even if there was no consent, he/she had an was no consent, he/she had an "honest but "honest but mistaken"mistaken" belief that there was consent. belief that there was consent. The courts have accepted, in the past, The courts have accepted, in the past, such an explanation as a valid defence.such an explanation as a valid defence.

More recently the courts have been limiting More recently the courts have been limiting the use of "the use of "honest beliefhonest belief" as a defence. " as a defence.

When is "honest belief in consent" When is "honest belief in consent" a legitimate defence? a legitimate defence?

This is clarified in the This is clarified in the Criminal CodeCriminal Code: : Where an accused alleges that he/she believed that the Where an accused alleges that he/she believed that the

complainant consented to the conduct...a judge, if satisfied that complainant consented to the conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.or absence of reasonable grounds for that belief.Source: section 265(4) of the Source: section 265(4) of the Criminal CodeCriminal Code

There There must be sufficient evidencemust be sufficient evidence which, if believed, would constitute a which, if believed, would constitute a defence. It is not enough for the defence. It is not enough for the accused to simply claim the he/she accused to simply claim the he/she honestly believed there was consent. (It honestly believed there was consent. (It has to be proven) has to be proven)

Defenses (p298-p311)

Mental disorder (results in an NCR (not criminally responsible) acquittal) Automatism (sleepwalking pg.305) Self defense Intoxication (controversial and limited) Mistake of fact (accused was mistaken about the

circumstances. Ex. Didn’t know they were buying stolen goods)

Compulsion (s.17 of Criminal Code. There are only certain minor criminal offences that may be excused with compulsion)

What leads to criminal What leads to criminal behaviour?behaviour?

Skipping class! Skipping class!

Different explanations focus Different explanations focus on different aspects of on different aspects of

human nature.human nature.

Physiology/ biologyPhysiology/ biology, , psychologypsychology, , sociologysociology, ,

politicspolitics, , economicseconomics..

Cesare LombrosoCesare Lombroso(late 19th century)(late 19th century)

Tried to relate physical characteristics such Tried to relate physical characteristics such as jaw size to criminal behaviour!as jaw size to criminal behaviour!

What is the point? What would we do with What is the point? What would we do with this information even if we could relate crime this information even if we could relate crime

to certain characteristics?to certain characteristics?

Sometime in the late 19Sometime in the late 19thth/early /early twentieth century, 2 streams of twentieth century, 2 streams of

theory evolved:theory evolved:

•Chicago School

•Sigmund Freud

Chicago School:Chicago School:

Linked criminality to underlying Linked criminality to underlying social and economic factors.social and economic factors.

Argued that social and Argued that social and environmental factors were environmental factors were

important in examining deviant important in examining deviant behavior.behavior.

Sigmund Freud:Sigmund Freud:

Links criminality to individual psychology.Links criminality to individual psychology. Believes that all humans have criminal Believes that all humans have criminal tendencies, but that these are modified tendencies, but that these are modified through inner controls learned during through inner controls learned during

childhood. childhood. Freud believed that faulty identification with Freud believed that faulty identification with

the parent was the most common factor the parent was the most common factor contributing to criminal behaviour.contributing to criminal behaviour.

Most experts agree that Most experts agree that social status and income of social status and income of the parents have little or no the parents have little or no

direct effect on the direct effect on the likelihood that children will likelihood that children will

turn to delinquency, turn to delinquency, although they may in some although they may in some cases have indirect effects cases have indirect effects by amplifying life problems by amplifying life problems

that can lead to crime.that can lead to crime.

Elements of an Elements of an OffenceOffence

To obtain a To obtain a convictionconviction, the , the crowncrown must must prove,prove,

beyond a beyond a reasonable doubtreasonable doubt,,

that that

each element of the each element of the offenceoffence

with which the accused is charged was in fact with which the accused is charged was in fact committed by the accusedcommitted by the accused..

Criminal offences are made up of two Criminal offences are made up of two elements:elements:

1. The Actus Reus1. The Actus Reus the prohibited act the prohibited act

2. The Mens Rea2. The Mens Rea The criminal intent The criminal intent

You have to do something You have to do something illegal and you had to illegal and you had to

have done it on purpose.have done it on purpose.P.246 P.246

p250 #3p250 #3

In the late 19In the late 19thth century, questions century, questions about about mens reamens rea (intent) were very (intent) were very

straightforward. straightforward.

-If a reasonable person could -If a reasonable person could foresee what was going to happen, foresee what was going to happen,

then the person was guilty. then the person was guilty.

It was assumed that you intended It was assumed that you intended the natural consequence of you the natural consequence of you

actions.actions.

More recently, the courts in More recently, the courts in Canada have developed a Canada have developed a

preference for the preference for the subjective subjective standardstandard..

Subjective theory requiresSubjective theory requires the the Crown to proveCrown to prove that the that the

accused had the accused had the

Requisite Intention Requisite Intention at the time the offence was at the time the offence was

committed.committed. P249P249

Culpability Culpability GuiltGuilt

Whether culpability will be based on Whether culpability will be based on

subjective mens reasubjective mens rea or or objective objective

mens reamens rea is not based on the accused is not based on the accused

but rather it is based on the offence.but rather it is based on the offence.

The law will determine if a certain The law will determine if a certain

offence will be measured objectively offence will be measured objectively

or subjectively and all trials or subjectively and all trials

regarding this offence will be tried regarding this offence will be tried

the same way.the same way.

Government loves statistics!Government loves statistics!

http://www40.statcan.gc.ca/z01/http://www40.statcan.gc.ca/z01/cs0002-eng.htmcs0002-eng.htm