Criminal Law Unit Flashcards
Elements of a Crime?
A crime occurs when an individual breaks one of our criminal laws.
Every crime has two essential parts: the physical action or actus reus and the intent or mens rea (guilty mind).
For example, the crime of arson has two parts: actually setting fire to a building and doing it wilfully and deliberately.
For most criminal cases both the actus reus and the mens rea must be proven.
Acteas Reus- The physical act of committing an offence
Men’s Reus- The physical act represents one element in the commission of a criminal act while the guilty mind represents the second key element. The guilty mind refers to the intention, knowledge or recklessness of the accused. Essentially, the law states that we must mean to cause a wrongful consequence.
Parties to an offence
ATTEMPT- A person is still considered a danger to society if she/he intends to commit a criminal act, but is caught before committing it. HOWEVER, if that same person is caught earlier with a journal indicating their intent to commit murder with plans detailed, but had not even bought a gun yet, person CANNOT be charged with attempted murder
CONSPIRACY- an agreement between two or more persons to carry out an unlawful action
Even if they do not commit the crime in the end, the charge will be conspiracy (e.g.- conspiracy to commit murder)
Jokes and threats are not considered conspiracy
AIDING AND ABETTING-
Aid means to assist the principal offender in the commission of a crime
Abetting means to encourage.
A person can be charged as well if they assist in planning the offence; although intent to assist in an offence to be committed needs to be proven
Counselling someone to commit an offence is also a crime, especially if a person is urging and inciting one to do so
ACCESSORY AFTER THE FACT- Means to help someone escape arrest after committing a crime
Exception to this crime – a spouse is not considered guilty of this offence; however, courts will charge both as co-conspirators usually
ORGANIZED CRIME- The definition of a group is usually 3 or more members.
When a specific group defies the law and authority and engages in criminal activity, it is known as a criminal organization.
The Hells Angels is the largest organized gang in Canada.
Court Systems in BC and Canada
COURT OF APPEAL FOR BC- Review the decision of the lower courts when requested to do so- not a trial court
SUPREME COURT OF BC-Civil cases involving money over $35,000
Divorce and custody matters
Serious criminal cases
if people are not satisfied with the decisions, they may appeal to the Supreme Court of Canada in Ottawa. Highest appeal court in Canada - Judges in the Supreme court can decide to hear the appeal or not
PROVINCIAL COURT OF BC-family division
family matters
youth court
traffic division
traffic violations
small claims division
civil cases involving money under $35,000
criminal division
90% of all criminal cases +
CRIMINAL COURT- This court hears most criminal cases in BC
If the crime is not too serious, such as theft under $5,000, the trial will be in Provincial Court
A more serious crime, such as theft over $5,000, may start in Provincial Court and then may move to the Supreme Court of BC
FAMILY COURT-Sometimes common-law couples separate. Both married couples and common-law couples who have children need to decide on the following questions:
Who will take the children?
Will the other parent visit the children? How often?
Who will pay support money?
SMALL CLAIMS COURT- place where people can go to settle their differences in cases up to $35,000.
FEDERAL COURT SYSTEM-The federal court system consists of the Federal Court of Canada and the Supreme Court of Canada — the country’s highest court of appeal
FEDERAL COURT OF CANADA- he Federal Court of Canada has a trial division and an appeal division. In its trial division, it hears civil claims involving the federal government. it also hears appeals from federally appointed boards, commissions, and tribunals like the Immigration Appeal Board and the National Parole Board.
Indictable V Summary Offence
Indicatable offence- a serious crime that carries more severe penalties; tried in a provincial supreme court
Summary Offence- a minor criminal offence that is tried in a provincial court
Hybrid Offence- an offence that the Crown can prosecute as either an indictable or summary offence
Law Inforcement in Canada
FEDERAL- RCMP
CSIS (Can. Security +Intelligence Service)
CBSA (Can. Border Security)
PROVINCIAL-RCMP
O.P.P. (Ontario Prov. Police)
Q.S (Surete du Quebec)
MUNICIPAL- RCMP
City Police ex. VPD, Delta, Etc.
OTHER- Sheriffs
By-law Officers
Military Police
Railway Police
Transit Police
Aboriginal Police
Arrest and Search Laws
OBTAINING A SEARCH WARRANT- The Charter of Rights and Freedoms guarantees the right for citizens against “unreasonable search and seizure.”
Therefore, officers need to give “reasonable grounds” to a judge through an information to gain a warrant to arrest.
USING SEARCH WARRANTS- Used only on date indicated on warrant (designated by judge) between 6am-9pm.
Involves only areas and items listed in the warrant – it’s very specific.
If items used in commission of same crime not listed on warrant are found, officer can obtain these as evidence.
SEARCH LAWS: RULES- Officers may enter the premises, by force if refused entry or if no one is home.
Accused has right to see warrant and inspect it before allowing officers entry.
If suspect is not under arrest, officers can only search the premises and the suspect only for weapons, drugs, alcohol.
SEARCH LAWS EXCEPTIONS:weapons:
Officers can search any building/area without a warrant, except a residence.
If weapon is registered, police cannot seize.
Police will seize if weapon is held by person under 16.
Prohibited weapons can always be seized
drugs (Narcotic Control Act):
Officers may search any building and persons inside for illegal narcotics without warrant (except a residence).
However, officers can only do so if a warrant cannot be secured in time.
Officers do not need to announce entry prior to search.
Vehicles can be searched without warrant for liquor, drugs or weapons if officer has reasonable grounds for suspecting.
Think of roadside police-checks!
Land can be searched for these items as well, although officer requires a warrant to search the dwelling.
ARRESTS: In situations of a lower-level crime, such a summary offence, hybrid and even some low- level indictable offences, an Appearance Notice can be given at the scene of the crime.
For higher level crimes, especially indictable offences, the accused will be arrested.
Public safety (especially if a dangerous offender).
Preserve evidence.
Gather Information in order to lay charges.
WARRANT FOR ARREST:An arrest warrant is issued when it is determined by a judge from an INFORMATION that a suspect will not appear in court voluntarily.
The warrant indicates the accused (by name and description) and the offence, and orders that the accused be arrested as soon as possible and brought before a judge.
Warrants are issued only when a judge determines from an INFORMATION that there are reasonable grounds for an arrest
CITIZENS ARREST:Section 494 of Criminal Code of Canada allows a citizen to arrest a suspect when:
Accused is observed in act of committing an indictable offence.
Release Procedures
Once a person is arrested, he/she is taken to a police station to record the charges.
After this, the police may release the person if they are accused of committing:
Summary offence
Hybrid offence
Indictable offence w/penalty under 5 years
For indictable offences:
Accused must be brought before a judge within 24hrs (or as soon as possible) for a bail hearing.
If bail is granted and the accused fails to appear in court for trial dates, the accused will lose bail money.
An Undertaking specifies conditions of bail, such as:
Curfew
Promise not to associate with particular people or go to particular places
Report to a police station once a week
Awaiting trial
OVERVIEW- period of time when the accused is charged with an offence and the time of disposition - is a very busy time for both the Crown and the defence
LEGAL AID- in order to prepare the defense, the accused has the right to acquire the services. If the accused cannot afford one, he or she can apply for legal aid, paid for by the crown and the defense.
COLLECTING EVIDENCE- both crown and defense collect evidence for the case
evidence can involve:
questioning witnesses
collecting statements
physical objects
forensic science
DISCLOSURE- Essentially, the accused knows the exact nature of the evidence the Crown possesses to support the charges.
full disclosure provides a fair trial for the accused
it is the process that requires each side to reveal the evidence that will be presented in court
PLEA BARGANING -at any time between the laying of criminal charges and at the end of a trial, the Crown and the defence may enter into negotiations to arrange an agreement whereby the accused either enters a guilty plea to the charge in return for a lighter sentence, or enters a guilty plea to a lesser charge where the sentencing range is less severe.
Forensics
FORENSIC BIOLOGY- Performs serological and DNA analyses of physiological fluids for the purpose of identification and individualization. The type of material typically examined include, but is not limited to, blood and semen.
FORENSIC PATHOLOGY-Determining cause of death (including murder, accident, or unexpected death)
Examination of some wounds and injuries due to crime or negligence
Examination of tissue specimens that may be relevant to rape, or other crimes
FORENSIC ENTOMOLOGY- Forensic Entomology is the use of insects, and their arthropod relatives that inhabit decomposing remains to aid legal investigations. The field is split into three general areas: medico-legal, urban and stored product pests
FORENSIC CHEMISTRY/TOXICOLOGY- Deals with non-biological substances, such as paint, potential fire accelerants, glass, fibres and textiles, plastics, building products, safe insulation and commercial products.
Forensic toxicologists deal mainly with body fluids to determine, for example, the level of alcohol or drugs a person has consumed and how these toxins would affect the person.
FORENSIC COUNTERFEITS AND DOCUMENTS- Counterfeiting money, credit cards, debit cards, passports, birth certificates, social insurance number cards, traveler’s cheques, marriage and driver’s licences, bus and airline tickets, and money orders.
Juries
FACTORS TO CONSIDER FOR JURY SELECTION-
AGE- Young people have different experiences and may be more flexible in their beliefs than older people.
WEALTH- Research shows that wealthy people are more sympathetic toward the Crown, the poor toward the defence
OCCUPATION- Choice of occupation may give clues about the person’s lifestyle and level of education.
NOTE*** These factors are not meant to be taken as value judgements in any sense. They are merely used by lawyers to gain whatever advantage they can in selecting a jury.
Criminal Court Procedures
CRIMINAL COURT PROCESS- Several ways in which an accused can be brought to court:
on arrest with warrant
on arrest without warrant
a promise to appear
an appearance notice or a summons to appear
PROMISE TO APPEAR- if an arrested person is not released by the police, there will be a bail hearing within 24 hours
a recognizance is one form of interim release and is completed by either promising to pay money or depositing money or other valuable security with the court.
if defendant doesn’t appear, the money or security deposited are subject to forfeiture, and an warrant for arrest will be issued.
FORM OF TRIAL- in most cases, the accused has a choice between being tried by a Provincial Court Judge or by a Supreme Court judge, or a Supreme Court judge with a jury. (This is called an election)
some cases that will require a Supreme Court judge and a jury, unless both the Crown and the accused consent to a trial by a Supreme Court judge alone
THE TRIAL- judge is the sole arbitrator of the law as it applies to each case and its facts but also provides a judgement in non-jury trials.
the court clerk is in charge of all exhibits, physical evidence, court files and the recording of the proceedings during any type of court hearing.
sheriff manages courtroom security and escorts the accused to and from court if he or she is being held in jail during the trial.
prosecutors represent the Crown - the state charges the accused and is referred to as the Crown Counsel/Prosecutor.
Defence Counsel is the lawyer for the accused
Crown has to prove beyond a reasonable doubt - burden is on them to provide enough evidence
if there is a hung jury, a new trial will be held
Types of Evidence
Privileged Communication: “Rob told his wife to tell the police that that he was at home on the night of the murder. The Crown wants to call her as a witness.” (Direct Evidence)
Hearsay Evidence: “Susan testifies that she heard Emma say that Ron had thrown th murder weapon in lake.” (Circumstantial)
Character Evidence: “In a voir dire, the Crown asks for the defendant’s lengthy criminal record to be ruled admissible.” (Circumstantial)
Interception Devices/Video Surveillance: “The RCMP used an acoustical dish in their police car to listen in on and record private conversations of the accused in his home.” (Direct)
Illegally Obtained Evidence: “Although the police had no lawful reason to stop the vehicle and perform a search, the Crown wants the result of the search ruled admissible.” (would be direct, but is inadmissible).
Similar Fact Evidence: “Two years ago, Iggy had been convicted of robbing a bank using a AK-47, the same modus operandi (method) as used in the crime for which he is currently being tried for.” (Circumstantial)
Opinion Evidence: “The DNA technician testified that the DNA found at the crime scene matched the sample taken from the accused.” (Direct)
Photographs: “The defence claims that a picture that the Crown wishes to use as evidence claims has been “doctored.”” (Direct)
Polygraphs: “The accused fails a lie-detector test. The crown wants to use the test results in court.” (Circumstantial)
Confessions: “Alan mae an inculpatory statement when he admitted that he punches the victim with no provocation.” (Direct)
Criminal Offences
FIRST DEGREE- Planned and deliberate. Committed during the commission of sexual assault, hostage taking or kidnapping. Have to wait 25 years for parole eligibility
SECOND DEGREE MURDER- any other intentional murder not defined as first degree. sentence is life imprisonment with no chance of parole for 10 years
MANSLAUGHTER- understood to be the unlawful killing of a person. Voluntary or by sudden impulse. sentence can change from probation to life imprisonment
INFANTICIDE- The killing of a newborn (under 12 months old) by his or her mother
Charge means accused is suffering under effects of depression or mental disturbance from childbirth
Maximum sentence is 5 years
SUICIDE AND EUTHINASIA-It is NO LONGER illegal to counsel, advise or assist someone in the commission of suicide/euthanasia
Euthanasia, also known as ‘mercy killing’, subcategorized as either voluntary (person with terminal cancer has expressed wish to die) or involuntary (cancer patient in coma)
ASSAULT- applying intentional force to another person, directly or indirectly without consent
ASSAULT CAUSING BODILY HARM- committing asault when a weapon is carried, used or threatens to use a weapon or an imitation of a weapon
AGGRAVATED ASSAULT- Committed when accused maims, wounds or disfigures or endangers someones life
Criminal Defenses
The true defences include duress, automatism, intoxication, or necessity. There is also a partial defence of provocation, which has the effect of reducing what would otherwise be murder to manslaughter.
Sentencing
ABSOLUTE DISCHARGE- usually reserved for first time offenders who have been punished by the publicity around the case.
CONDITIONAL DISCHARGE- In the case of a conditional discharge, the conviction is erased from the offender’s record as soon as the condtions of the probation orders are met
CONDITIONAL SENTENCE- used on any sentence under two years where there is no minimum sentence. Usually involves the offender serving the sentence in the community under electronic surveillance at home except for the time spent at work, medical appt, etc.
