CHAPTER 3 Flashcards
What is the legal definition of a crime?
What do prohibitions include?
Conduct that is prohibited by law and subject to a penal sanction
Prohibitions include the criminal code and other federal statutes - in Canada, they are the result of a legislative process that is intensely political (alcohol prohibition? ban on alcohol)
What does criminal law include?
- the definition of various crimes
- the specification of various penalties
- a set of general principles concerning criminal responsibility
- a series of defences to a criminal charge
What are the two sources of criminal law in Canada?
Federal legislation
Judicial decisions that either interpret such legislation or state the “common law”
When was the criminal code of canada first passed and what did it include
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
- makes a distinction between indictable, summary, and mixed or hybrid offences
What did the Supreme court of Canada rule as the requirement for something to be considered a criminal law
It must be directed against a public evil or some form of behaviour that has an injurious effect on the canadian public
What are some other relevant federal criminal statutes?
Youth Criminal justice act
controlled drugs and substances act
customs and excise act
What is Regulatory Legislation? How is it enforced and what is the other name for it?
Under the constitution (1867), provinces and territories were granted permission to enact legislation in relation to issues like health, education, highways, liquor control, and hunting and fishing
Concerned with the orderly regulation of legitimate activities
Do not constitute criminal law because it does not address “public evil”
May be enforced through a fine, penalty, or imprisonment
AKA quasi-criminal law
What are true crimes?
Criminal offences (federal law)
- directed toward the control of behaviour that is considered to be inherently wrong (public evil)
What is common law?
- laws that evolve in areas not covered by legislation > judicial decisions (judges interpret criminal law) that interpret criminal legislation or expound the common law
- In canada, judges cannot create new common-law crimes, but they develop common-law defences that are not dealth with by legislation
What is the impact of the Charter of rights and freedoms on criminal law?
- The CCRF 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 (ex. abortion, sex work laws)
What are the three components included in the actus reus elements of a crime?
- conduct (a voluntary act or omission constituting the central feature of the crime) ex. force applied to the body of victim
- the surrounding or “material” circumstances (ex. force applied without consent of victim)
- the consequences of the voluntary conduct (ex. force on victim caused bodily harm)
What are the exceptions to actus reus?
Perjury > doesn’t require proof of any consequences
Failure to act > this can constitute a crime when the accused was under a pre-existing legal duty to act (ex. parent failing to provide child with the necessaries of life)
The accused’s conduct must be voluntary (ex. maybe the accused person’s consciousness was seriously impaired)
What is the mens rea element of crime?
A person must understand and intend the consequences of their act
Describe subjective mens rea (3 diff forms)
Subjective:
- the accused intended to bring about consequences prohibited by law (intention and knowledge)
- subjectively realized that their conduct might bring about such prohibited consequences (recklessness)
- (willful blindness) in that they deliberately closed their minds to the obvious criminality of their actions
Describe objective mens rea
A conviction should ensue 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 elements of the crime
> up to the judge or jury to decide what is reasonable in all the circumstances of the case
Describe what it means to be a party to a criminal offence
Anyone is a party to a crime who…
- actually commits it
- aids another person to commit
- abets (encourages) any person to commit it
What is an Inchoate crime and what are the 3 types of inchoate offences?
> when a person attempts to bring about a crime but is unsuccessful in doing so
- Counselling: procuring, soliciting, or inciting another to commit a crime (that may or may not be committed)
- Criminal Attempt: an individual does (or omits to do) anything for the purpose of carrying out a previously formed intention to commit a crime
> this step has to go beyond “mere preparation” and is not considered to be “too remote” from the complete offence - Conspiracy: an agreement by two or more persons to commit a criminal offence
> the crown must prove that each individual charged actually intended to put the common design into effect
What does civil liberty concern and what is the problem that occurs with this?
Things like freedom of association, speech, religion, etc.
> criminal law should not punish people for entertaining evil thoughts
BUT, 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)
What are the most important defences an accused can make in a criminal trial?
Mistake of fact, intoxication, necessity, duress, NCRMD, provocation, and self-defence
What is NCRMD and what are the three options the accused could be granted
Not criminally responsive on account of mental disorder > means they lack the capacity to appreciate the nature of the act being committed
They may be granted:
> an absolute discharge
> conditional discharge
> an order holding them in custody in a psychiatric facility
Describe the defence ‘mistake of fact’
- the accused made an honest mistake that resulted in a crime > they did not know the real facts of a situation
- ignorance of the law is not mistake of fact
- in cases of sexual assault, a person had to have taken reasonable steps to ascertain the complainant was consenting
Describe the defence of intoxication (when it can and cannot be raised)
> may not be raised 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 - if it prevented them from forming the intent required for a specific offence
> primarily a “common law” defence
> traditionally the defence only applied to those offences that required proof of a complex form of mens rea known as “specific intent” but not valid for a charge of “basic intent” like assault, sexual assault, etc.
reason for this? having the intent to murder someone requires a more complex pattern of thought that intoxication could definitely prevent
What is the defence of 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
What is the defence of duress? (where does it apply and not apply)
> the accused or another person such as a spouse or child must be subjected to a threat of death or serious bodily harm
must be immediate - and no chance of escape
doesn’t apply to murder or other very serious crimes
doesn’t apply if you put yourself in a situation where threats are likely
What is the defence of provocation?
(for what crime is it raised and what would the result be if successful?)
> 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
excludes any kind of premeditation
> not available for ‘crime of passion’ which is when they discover their partner cheating on them
What does the accused have to show in order to prove self-defence?
> that they were unlawfully assaulted and 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
take into account the extent of force, extent that the force was imminent, other means available to respond to the force, was there a weapon, size and capabilities of the individuals
Describe self-defence defence involving domestic violence
> battered woman’s syndrome may be raised
the supreme court supports the use of what a “reasonable woman” would have done
a woman in acute fear for her life does not have to wait to be attacked
What is strict liability? What is a defence for this?
Strict liability offences only require the prosecution to prove that a defendant committed an unlawful act, not that the defendant intended to commit the unlawful act (ex. careless driving)
> common defence against strict liability is to show that the accused exercised due diligence - and the onus is on the accused to prove this
What is absolute liability?
Absolute liability offences are sometimes called ‘strict liability minus exceptions’
> the accused cannot rely on the defence of establishing due diligence, necessity, or mistake of fact
> also have less severe punishment than a strict liability offence
(ex. failing to stop at a stop sign)
What was the Jordan decision?
R v. Jordan > man charged with 14 drug offences and waited over four years for his trial > his charges were dismissed
New timelines were introduced for determining what is an unreasonable delay
*criminal trials should be complete or have an expected date of completion … 18 months for provincial court or 30 months in superior courts
this is because in the CCRF, there is a right for a person to be tried within a reasonable time
What is the M’Naghten rule
1843
While every man is presumed to be sane, a defence can be established on the grounds of insanity if it can be clearly proven that they were under such a defect of reason from disease of the mind that they
1. did not know the nature and quality of the act
2. did not know the act was wrong
*these are somewhat flawed because they weren’t developed by psychiatrists
What are 2 difficulties of the insanity defence?
- hard to prove the state of mind at the time of offence
- is a legal term, not a medical one
how often is the NCRMD defence used?
they are about 250-300 cases a year in canada > less than 1% of court cases
- so few because you might be sent to an institution - and if it’s just a minor offence you’d rather just plead guilty than do that
When was mercy killing determined to be a legal medical process?
2015 > now called MAID
> topic of consent - before you could not consent to be killed
What determines what is reasonable in terms of using self defence?
- proportionality
- were there alternatives
- did any of the parties use or threaten to use a weapon
What is general intent and specific intent?
general intent > a criminal act was committed knowingly (but there is no specific purpose or outcome intended)
- there was little or no thought or foresight into the consequences of the actions beyond the illegal action
specific intent > the crime is committed intentionally AND the intent was to cause a particular result or consequence by committing the act
- includes an ulterior purpose of knowledge of consequences that flow from the action (complex thought and reasoning were necessary to commit the crime)
What is the sentence for first degree murder in Canada?
Life, but eligible for parole after 25 years
What are the requirements of MAID
> must be 18, competent to make decisions about health care, have a grievous and irremediable medical condition, and the person must be informed of the alternatives to deal with their suffering before they give consent to MAID
In MAID, what determines the definition of a grievous and irremediable medical condition?
> serious and incurable illness, disease or disability
in an advanced state of irreversible decline in capability
the illness causes them to endure physical or psychological suffering that is intolerable
their natural death has become reasonably foreseeable
What is the defence of automatism? What are the two types?
When an argument is made that the accused cannot be held responsible for their crime because they were either not conscious when the act was carried out (ex. sleepwalking), or the crime was the result of an involuntary action such as loss of control over muscles, a reflect action or a convulsion
2 TYPES:
- insane (internal) and not insane
Define bodily harm
Any hurt or injurty to a person that interferes with the health or comfort of the person and is more than merely transient or trifling in nature
Describe the ‘high risk accused’ designation relating to the NCRMD defence
- the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person , OR
- the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person
*this person must be kept in custody in a hospital and not allowed temporary absences unless they are escorted and there is no undue risk to the public
What is the Mabior case?
Related to the charge of fraud for an individual who has unprotected sex with someone without disclosing their HIV
> in Mabior, he had been taking ART (effective treatment) - and so he wasn’t charged for the cases where he wore a condom
