Ch 3 Flashcards
crime
conduct that is prohibited by law and that is subject to a penal sanction (such as imprisonment or a fine)
criminal law
a body of jurisprudence that includes the definition of various crimes, the specification of various penalties, a set of general principles concerning criminal responsibility, and a series of defences to a criminal charge.
criminal procedure
legislation that specifies the procedures to be followed in the prosecution of a criminal case and defines the nature and scope of the powers of criminal justice officials
substantive criminal law
legislation that defines the nature of various crimes and specifies the various legal elements that must be present before a conviction can be entered against an accused person
“true crime”
occurs when an individual engages in conduct that is not only prohibited but also constitues a serious breach of community values (perceived as inherently wrong and deserving of punishment)
regulatory offence
arise under legislation that regulates inherently legitimate activities connected with trade, commerce, and industry or with everyday living (driving, fishing etc)
common law
the body of judge-made law that has evolved in areas not covered by legislation
what are the basic elements of a criminal offence
actus reus and mens rea
an accused may not be convicted of a crime unless it can be proved that an event of state of affairs was caused by the accused’s conduct and this conduct was accompanied by a certain state of mind
actus rea
all elements contained in the definition of a criminal offence other that the mental elements
- conduct (voluntary act or omission constituting the central feature of the crime)
- the surrounding or material circumstances
- the consequences of voluntary conduct
mens rea
the metal elements (other than voluntariness) contained in the definition of a criminal offence
- a person must understand and intend the consequences of their act
- refers to the guilty mind and wrongful intention of the accused and prevents the conviction of the morally innocent
exceptions to the actus rea of a crime
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
the accused’s conduct must be voluntary
subjective mens rea
the accused intended to bring about consequences prohibited by the law
-forms are intention and knowledge, recklessness, and willful blindness
objective mens rea
a conviction should occur because a reasonable person would have appreciated that their conduct created a risk of harm and would have taken action to avoid the actus reus element of a crime
offences based on objective mens rea
manslaughter, dangerous operation of a motor vehicle, assault causing bodily harm, and criminal negligence causing death or bodily harm
offences based in subjective mens rea
arson (it doesn’t matter if you didn’t mean for the lit cigarette you tossed on the haystack to start a fire), possession of stolen goods (did you ask if this suspiciously cheap thing was stolen?)
federal legislation
one of two criminal law branches in canada
- parliament has exclusive jurisdiction over criminal law and procedures
- in canada, a criminal law must be directed against a “public evil”
criminal code of canada
passed in 1892
defines criminal acts and the legal elements that must be present for a conviction (substantive criminal law)
specifies the criminal procedures to be followed in prosecuting a case and the powers of CJS officials (procedural law)
judge-made criminal law
in canada, judges cannot make new common-law crimes but they can make new common-law defenses
the Charter and criminal law
the Charter allows judges to declare invalid any legislation that infringes upon an individual’s charter rights, within reason
party to a crime
one is party to and liable to conviction of a criminal offence if one actually commits it, aids in/abets it, becomes party to it by virtue of having formed a common intention with others to commit a crime, or counsels the commission of an offence that is actually committed by another person
-anyone who aids/abets is equally as guilty
inchoate crime
when a person attempts to bring about a crime but is unsuccessful in doing so. the three inchoate offences are attempt, conspiracy and counselling
“a crime in embryo”
counselling
procuring, soliciting, or inciting another to commit a crime
criminal attempt
an individual does (or omits to do) anything for the purpose of carrying out a previously formed intention to commit a crime
conspiracy
an agreement by two or more persons to commit a criminal offence
Not Criminally Responsible on account of mental disorder
-the accused lacks the capacity to appreciate the nature of the act being committed
-the accused must have been suffering from a mental disorder at the time of the alleged offence
may result in the accused being granted:
1. an absolute discharge
2. a conditional discharge
3. an order holding them in custody in a psychiatric facility
mistake of fact (defence)
the accused person acts under the influence of an honest mistake in relation to any of the elements of the actus reus of the offence charged
ex. a woman who sincerely believed her husband to be dead could not be convicted of bigamy for marrying another man
- in the case of sexual assault, the accused must take reasonable steps to ascertain consent
- ignorance of the law is not mistake of fact
intoxication (defence)
- 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 (the intent required for a specific offense)
necessity (defense)
may be a defense to a criminal charge when the accused person commits the lesser evil of a crime in order to avoid the occurrence of a greater evil
-the accused is considered to have acted involuntarily from a moral viewpoint
duress (defence)
-the accused was forced to commit a crime as a consequence of threats of death or serious bodily harm made by another person (these threats may be towards the accused or towards another individual such as a spouse or child)
provocation
- partial defence that may only be raised when the charge is murder (if successful, the offence is reduced to manslaughter)
- the accused must have killed in the heat of passion caused by sudden provocation sufficient to deprive an ordinary person of the power of self-control
self-defence
the accused must show that they:
- were unlawfully assaulted and did not provoke the attack
- used force in self-defence
- did not intend to inflict grievous bodily harm and used no more force than was necessary for self-defense
- were under reasonable belief that they had no alternative but to employ lethal force if death or grievous bodily harm were in fact inflicted
