Crim Law Fall Flashcards
What is Crime?
An act that the law forbids with penal sanctions.
Scope of Criminal Law - 4 Major Tenets of Criminal Law
Presumption of Innocence
Proof Beyond a Reasonable Doubt
Actus Reus
Mens Rea
Form of Crime
Prohibition + Sanctions + Social Purpose
S. 91 and S.92 give powers to ________________
Parliament and Provinces to make laws.
S. 91(27)
Criminal Law power
S. 91 (28)
Penitentiaries (Jail)
Penitentiaries
If 2+ years = federal penitentiary
If less than 2 years = provincial penitentiary.
S.92(6)
Prisons in Province;
Establishment, maintenance, and management of Public and Reformatory Prisons in and for the Province.
S.92(14)
Provincial Courts for Police, Probation, Prosecution, Civil and Criminal Matters, Civil Procedure.
“Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters of those Courts”
Substantive Law
Federal statutes like YCJA, common law, and how government governs how society behaves.
Procedural law
i.e. How trials work, how to enforce the law
Basic Purpose of Criminal Law
- Protect all members of society from seriously harmful and dangerous conduct
- Maintaining a just, peaceful and safe society through prohibiting harmful conduct backed with sanctions
- Deterrence through the imposition of sanctions
- Criminal law focuses on the conduct of the accused person, the person charged with the criminal offence. The focus is not on the merits of the victim or the complainant.
- Victim’s (complainant) rights are growing in awareness
- Not guilty does not infer innocence; simply means the BRD standard failed
- Accused is always entitled to the benefit of any reasonable doubt; is assumed unless otherwise
A criminal conviction can be justified even when there is no injury caused to anyone, not to say not some harm caused in general, but certain criminal offences can exist in the absence of injury. T or F
True
What is Adversary System
There are two parties: crown and defence present their case to judge (impartial decision maker)
What does the Adversarial system seek?
The truth. However, we may often find a mere approximation of the truth.
Adversary System is not always adversarial, why?
Both parties often cooperate in plea bargaining, resolution discussion and guilty plea.
What is the Role of the Crown?
- Administers of Justice
- Objective is not to “win” but to present facts and evidence as it relates to the case.
- Can advocate - asking a judge to convict based on evidence being BRD (Beyond a reasonable doubt).
- Conversely, where evidence has not met the BRD standard, the conviction should not be requested.
- Ensures fairness in trials
What is required for the crown to pursue a case?
a) reasonable prospect of conviction and
b) it is in the public’s interest to do so.
What is the role of the Defence?
- Ensuring the accused’s rights are being protected
- Ensuring that the accused has a fair trial, and that the prosecution proves BRD.
- Has to protect the client as far as possible from being convicted until the crown has proven BRD
- Must be courageous - defending the client regardless of how despicable the allegations may be
- Cannot knowingly assist or encourage dishonesty, fraud, crime or illegal conduct.
- Cannot advice a client on how to violate the law or avoid punishment
- Cannot bring forth evidence that would mislead the court
- Cannot bring forth evidence that would directly contradict what accused told counsel.
- If accused pleads guilty, counsel can only challenge sufficiency of evidence, form indictment, jurisdiction of court; cannot accused anyone else of doing it.
What is the Role of the judge?
- The judge is not a party
o They provide, independent, impartial and objective assement of the facts and they determine how the law is gonna apply to the facts,
o they apply the relevant facts and laws and circumstances before the case and the circumstances of the case and render justice in the framework of the law - Make sure everyone follows procedure
o Procedure is important to make sure everyone has a fair trial - Judges are responsible for interpreting the law
o Judges do not create laws - Judges asses how evidence is presented, they control how hearings and trials unfold
- Gate keepers of the evidence that s deemed admissible
- Impartial decision makers in the pursuit of justice
- Appears dispassionate – “controls” the courtroom but does not take over it
- Interpret law and assess it in an unbiased manner
- Not to judge the accused, but to judge the merits of the evidence and whether the law is applicable
- If an accused is found guilty, judges job is to sentence that person in a just and fair manor
R. v. Stinchcombe
Crown has obligation to disclose the “fruits of a police investigation” that they possess.
Everything that the police gathered.
Fruits of a police investigation are not the crown’s property for the purposes of getting a conviction; it is the public’s property to ensure that justice is done.
Defense has the obligation to protect the rates of the person.
True
Crown’s obligation to disclose is not absolute. Why?
- Crown can withhold information that is clearly irrelevant
- Crown can withhold information that is privileged
- Crown can delay disclosure – it is at the Crown’s discretion
- It is not up to the Crown to determine what should be disclosed to the defense
Classification of offences - Summary
S. 787 (1) - general default maximum penalty for summary offences - liable not more than 5k fine or no more than 2 years in jail.
- Generally targeted at less serious conduct
- Always tried before the provincial court (OCJ)
o If appeal after trial, would go to Superior Court of Justice, as a summary conviction appeal - Agents can appear
o A paralegal, lawyer, an agent can appear for the accused
Classification of Offences - Indictable
- Max penalty ranges from two years to life imprisonment
- The maximum penalty of life imprisonment is unique to indictable offences
o Murder has a minimum sentence of life imprisonment - Generally reserved for more serious conduct
- Accused is given a choice, have their matter seen before a provincial court judge or they can elect to have their case heard before a judge and jury in the superior court of justice, with or without a preliminary hearing
Preliminary hearings for indictable offences are only done at the Ontario Court of Justice, then goes to the Superior Court of Justice. True or False.
True
What is an indictable offence?
An indictable offence is more serious. There are different procedures for indictable offences. The procedure that applies depends on how serious the offence is and choices made by the prosecutor and the accused person. A person charged with an indictable offence will be arrested where the police have reasonable grounds to believe that the person has committed an indictable offence or is about to commit an indictable offence. A person charged with an indictable offence must show up in court. He or she may represent him or herself or be represented by a lawyer.
Classification of Offences - Hybrid
- Can either proceed by summarily or by indictment - determined through Crown election
o Considerations
Seriousness
How many times you want the witness to testify - o Assault 266 offence section, showcases hybrid choice
If it says “an offence punishable on summary conviction” - It means the default maximum penalty of 2 years minus a day applies
- Presumed indictable unless Crown elects to proceed summarily
For Hybrid Offences, the accused has the right to choose whether they want to be tried in the provincial court or the superior court with or without juries.
True.
R. v. Sedley
- “Misdemeanours against the King’s peace” is a common law offence
- Sedley’s offence did not fall under any specific statutory offence
Court cannot determine defendant committed an illegal act without a crime.
- Court deemed conduct offended morality, felt compelled to punish behaviour
- It was the Court that determined whether conduct was criminal
Frey v. Fedoruk
- Common law offences eliminated from the Canadian criminal justice system except for contempt of the court.
- “What is to be declared criminal should be left to Parliament, not the court”
- Parliament is often reactionary to judicial opinions
- “Breaching the King’s Peace” is too ambiguous
- Uncertainty should not exist in the administering of criminal law
- Letting a judge determine what’s criminal = uncertainty
- Allowing common law offences might capture conduct that’s not actually criminal in essence
- Yu An: No one should be convicted of a crime unless the crime is recognized as such in the criminal code. Section 9 of the criminal code.
- Section 8.3: common law defences are under 8.3.
Criminal Code s. 8(3) & S. 9
Criminal offences/defences.
S.9(a) of Criminal Code
o No one shall be convicted of an offence at common law
o Exception: contempt of court
Enables a judge to control the courtroom
S.8(3) of Criminal Code
o Preserves all common law defences (both statutorily entrenched and through common law)
R. v. Henry
- Ratio is always binding on lower courts (stare decisis)
- While obiter is not binding like ratio, some obiter carries more weight than others i.e. from SCC (case by case determination by court)
The Division of Powers under s. 91 (Federal) and s. 92 (Provincial)
The criminal code is a product of the division of powers.
- S.91 (27) - parliament’s power over criminal law.
S.92 (14) Administration of Justice, including the constitution, Maintenance, and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts.
Reference re Firearms Act
- 3 prerequisites to classifying a law as criminal: [Valid criminal purpose backed by] (1) Prohibition + (2) Penal Sanction + (3) Criminal Law Purpose
- Due to the presumption of constitutionality, burden is on the challenging party to show that the legislation is ultra vires the enacting level of government
- Here, court weighed public safety over property rights.
Charter
S.52 (1) - constitution of Canada as the supreme law of Canada
S.52 (1) - is a challenge to parliamentary supremacy, since it grants courts the power to measure legislation against the “codified yardstick” that is the charter.
2 types of Charter challenges
Law and conduct
Law: a particular law violates s. x of the charter
Conduct: a challenge to the act of a state agent. (i.e. unreasonable search and seizure).
Why is S.7 of the Charter a challenge to criminal law?
Everyone has the right to…not be deprived thereof except in accordance with the principles of fundamental justice.
Example: Is the law that the accused is charged with in and of itself consistent with the principles of fundamental justice?
R. v. Malmo-Levine (Requirements for a Principle of Fundamental Justice)
- Test for principle of fundamental justice:
1. Must be a legal principle
2. Must be significant societal consensus that it is fundamental to how the legal system ought to function/operate
3. Must be identified with sufficient legal precision to yield a manageable standard that can measure deprivations of life, liberty and security - Discusses four principles of fundamental justice:
1. Vagueness
2. Overbreadth
3. Arbitrariness
4. Gross Disproportionality
Arbitrariness
o Test: Is there a direct connection between the objective (purpose) of the law and its negative impact on the person?
o If NO: law is arbitrary; there must be a rational connection
Overbreadth
o A Law is too broad in scope that it includes some conducts that.
o Restrictions may include what is beyond what’s needed to meet the law’s objective
Gross Disproportionality (s.7)
o Effects of the law on a person are too extreme that they cannot be justified by its object.
o Yu An: the law effect on your S.7 rights are so gross disproportionate to its purposes that it cannot rationally be supported.
Vagueness
o Test: Is there sufficient room for legal debate? Ex. Speed limit – you cant say you cant go unreasonably fast…etc. way too vague
o SCC: any penal law should be deemed unconstitutional if it is vague
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), [2004] 1 S.C.R 76
- Law does not require certainty for it to be constitutional; just an “intelligible standard for its application”
- Yu An: Certainty of the law is not required
A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and “analysis”; “does not sufficiently delineate any area of risk”; or “is not intelligible”. The law must offer a “grasp to the judiciary” Certainty is not required.
Interpretation of Criminal Statutes
- Modern statutory: the words of the legislation must be read in their entire context and grammatical and harmoniously with the skin of the act, the object of the act and the intention of the parliament.
- Look at other language version of the code and apply the same modern s
- You wanna look at the ambiguity of the charter value – where you have two meanings of the charter, the interpretation of the core with the charter value meaning should be adopted.
- Strict and construction rule: clark case. Strict and construction of criminal statute. You wanna adopt an interpretation favour to the accused. But it must align with charter value.
- Court may resort to strict and construction of the penal statute where ordinay of interpretation do not resorte any ambiguity.
Re Application under S.83.28
- Charter values are to be used as an interpretive principle ONLY in circumstances of genuine ambiguity
- In all other cases – courts are to use the modern principle of interpretation
1. Consider:
Entire context of legislation in both grammatical and ordinary sense (language, scheme of act, parliamentary intent, object of act) - Modern approach presumes constitutionality
R. v. Clark
- If something is “missing” from legislation, it was Parliament’s intention to omit/exclude
- Inappropriate for courts to include what Parliament did not intend to include
- Parliament would include what they want in the code
- In cases of ambiguity:
1. Apply modern principle of interpretation
2. Look at other language (EN/FR)
3. Consider Charter – which interpretation aligns best w/ Charter?
4. Apply strict construction principle (Goulis, apply interpretation more favourable to accused)
R. v. Goulis (Doctrine of Strict Interpretation)
- Doctrine of Strict Construction – where a criminal provision is reasonably capable of two interpretations, the interpretation more favourable to the accused must be adopted ( it must also align with the charter value) (Charter value comes first because it is what the parliament’s intent)
- Must first use modern principle of interpretation first
- Where ambiguity remains, use doctrine of strict interpretation
R v. Pare (Doctrine of Strict Interpretation - Applied)
- Interpretation must still be reasonable given the legislation’s scheme and purpose despite the strict construction rule
- If the interpretation favouring the accused conflicts with parliamentary intent, must prioritize parliamentary intent
- Interpretation that runs contrary to common sense must also not be adopted given a reasonable alternative exists
R. v. Mac (Doctrine of Strict Interpretation - Applied)
- Doctrine of strict interpretation only applies where there is true ambiguity and where other steps have been taken (Clark)
- Meaning of words are to be determined by a full contextual analysis
- Most restrictive meaning of a word doesn’t always apply – again, must go through whole process
Summary of Interpretation of Criminal Statutes
- First: Modern principle of statutory interpretation is applied
a) Full contextual analysis – context, grammar, parliamentary intent) - If ambiguity remains -> look to EN and FR codes
a) If one of the versions is plain and unequivocal, it will be applied - If ambiguity still remains -> consider Charter values
a) Apply the interpretation that aligns best with Charter values - If ambiguity still remains -> apply doctrine of strict construction
a) Apply interpretation most favourable to the accused (most narrow and restrictive interpretation)
Presumption of Innocence
o “Any person charged with an offence (d) has the right to be presumed innocent until proven guilty”
Woolmington v. D.P.P (Presumption of Innocence - Origins)
- No burden shall be laid on the accused to prove his innocence – they are presumed innocent
- Burden is on the prosecution to show the guilt of the accused
- Where there is reasonable doubt, the prosecution has not met its burden and accused will be entitled to acquittal
What does Presumption of Innocence mean for the accused?
- The accused begins the case with a clean slate
- POI stays with the accused for the entire case, from start to finish
- POI is only defeated when Crown proves BRD the guilt of the accused
- Accused does not have to testify – their innocence is presumed
- Accused also does not have to present evidence or prove anything; technically won’t even have to call witnesses
- All burden to prove is on the prosecution
R. v. Lifchus (Proof of Beyond a Reasonable Doubt)
- While proof BRD are just everyday words, its specific legal meaning must be made clear to juries
How should BRD be explained to a jury?
o Burden of proof always rests with the prosecution
o Reasonable doubt is not doubt based on sympathy or prejudice
o Reasonable doubt is based on reason and common sense
o Reasonable doubt is logically connected to evidence or lack thereof
o BRD DNE proof beyond absolute certainty
o To be BRD, more is needed than “accused is probably guilty”
[I.e., in civil matters – balance of probabilities]
How should BRD NOT BE explained to a jury?
o Describing “proof BRD” as an ordinary term with no legal meaning
o Inviting jurors to apply the same standard of proof that they apply to the most important tasks in their own lives
o Equating proof BRD to proof to a moral certainty (should not leave courtroom feeling guilty about lack of certainty)
o Substituting the word “reasonable” with other words
o Telling jurors they may convict if they are “sure” of the accused’s guilt without introducing “proof BRD” standard
R v. Starr (BRD)
- Proof BRD is closer to absolute certainty than to balance of probabilities
- Trial judge required to explain that something more than probable guilt and less than absolute certainty is required
- Think of it like a scale – judge should situate the BRD standard between the two standards (probable guilt <–> absolute certainty)
R. v. S (J.H.) (Credibility)
- Lack of credibility on the part of the accused does not equate to proof of his guilt BRD
- If credibility becomes an issue, judge must explain the relationship b/w assessment of credibility and Crown’s ultimate burden to prove guilt
o Use W.D. analysis
R. v. W.D. (Test for Credibility and BRD)
- Instructions to jury re: credibility of the accused:
1. If you believe the evidence of the accused, you must acquit
2. If you do not believe the evidence of the accused but you are left in reasonable doubt (i.e., by evidence you do accept raised reasonable doubt or you are left not knowing who to believe), you must acquit
3. Even if you are not left in doubt by the accused’s evidence, you must ask whether you are convinced BRD of the accused’s guilt based on other evidence that you do accept - Summary of WD
1. If there is reasonable doubt of guilt = ACQUIT
2. If based on the evidence you accepted you are satisfied BRD of accused’s guilt = CONVICT
