Law Unit 3 Test Flashcards
Criminal Law
What does Mens Rea mean?
Mens Rea is “the guilty mind” deliberate intention to commit a wrongful act, with reckless disregard for the consequences, which means the intent of the crime, the mental capacity to do it, and the thought behind it.
What does Actus Reus mean?
Actus Reus is “the guilty act” - the voluntary action, omission, or state of being that is forbidden by the Criminal Code, which means the act itself.
Why do you need both elements (Actus Reus and Mens Reus) to charge someone with 1st-degree murder?
You need both elements (men’s rea & actus reus) to charge someone with 1st-degree murder in order to see how much planning was actually involved to constitute 1st-degree, as it shows a well-planned men’s rea and you succeed with the action.
What is the most basic reason for having criminal law?
For the Protection of the Public.
The criminal code is overseen by which level of government?
The Federal government.
What is the difference between Strict and Absolute liability offences? Give an example.
Absolute liability involves lower forms of crimes where you are simply charged and not given jail time (speeding ticket - the cop does not care why you are speeding, no men’s rea) and there’s no defence to it because you simply committed the act
while strict liability involves bigger crimes (murder) where you can face jail time and there’s the defence of due diligence. For example, when a company polluted the duck’s habitat so they had to make the ducks stop going there but no matter what they did to make the ducks go away, they kept coming back.
Give an example of 3 “Parties” to a crime.
Principle Actor: A person who actually commits a crime – that is commits the actus reus and has the men’s rea. Leader of the operation, if it was a murder ro a robbery this person would be carrying the gun.
Aider and Abettor: A person who helps and encourages the principal actor to carry out a crime. They are not in charge but if it was a robbery they would help the person getaway as the getaway driver.
Counsellor: A person who counsels or recommends that a person commit an office. Ie. The Cheerleader’s mom case.
Accessory After the Fact - A person who helps the principle actor and the aider and abettors after the crime has been committed, but were not present during the actual crime. Ie. If this was a robbery they would let them use their house to hide from the cops.
What is conspiracy?
Conspiracy is an agreement between two or more people to carry out an illegal act, even if that act, does not actually occur. Basically, when you decide that you’re going to plan with someone else to commit a crime and this crime gets laid on with other charges.
What is the highest court in Canada? Do they hear anything but appeals?
The Supreme Court does not hear anything other than appeals - you can appeal all the way up to the Supreme Court.
The burden of proof in any criminal legal case is always on which side?
The Crown - the prosecution, because of Habeus Corpus. It is not the defense’s job to prove that the accused is innocent, that is already assumed, so the burden of proof is the idea that it is the Crown’s responsibility to prove beyond a reasonable doubt that the accused is guilty.
Why does the court allow for cross-examination?
In order to test the validity and show the accuracy of the evidence testified by the witness on the other side. The lawyer from their side cannot do this as it would not be accurate, you go easy on you’re witness and then drill the other sides witness to point out holes in their story and put doubt in the judge’s mind.
What is Hearsay?
When you repeat something in court that you heard from someone else that you didn’t actually witness. It cannot be used as actual evidence. An attorney may ask a witness only about what the witness saw or experienced firsthand, not about something he or she heard from a third party. If a witness said “Ann told me that she saw Tom stab Al with a knife” the opposing lawyer could object to hearsay evidence which is not admissible in court.
What is the difference between Forensic and Physical evidence?
Physical evidence is any object, impression or body element that can be used to prove or disprove facts relating to an offence.
Forensic evidence is the use of biochemical and other scientific techniques to analyze evidence in a criminal investigation.
Thus, physical evidence is tangible such as a knife at the scene but forensic evidence is the analysis such as autopsies that show a murder victim’s time of death.
When can the police arrest you without a warrant?
The police can arrest you without a warrant if:
if you have committed, are about to commit or are in the process of committing an indictable offence
if s/he needs to preserve the evidence
if s/he needs to prevent you from committing another offence
What is a citizen’s arrest?
A citizen’s arrest is an arrest without a warrant by any person other than a peace officer. Private citizens have the power of arrest if:
- if you have committed, or are in the process of committing an indictable offence
- if you are escaping from the police
- you are taking their taking property
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If a private citizen arrests you, they must turn you over to the police ASAP and use reasonable force or risk being charged with assault.
What are the 3 levels of offences and how do they differ from one another?
Summary:
- A crime that is considered less serious and carries a lighter penalty Ie. speeding ticket
- Fined up to $2000 and/or imprisonment for up to 6 months
- Tried in provincial court
- No jury
Indictable
- A crime that is more serious than a summary conviction offence and carries a heavier penalty Ie. Murder, arson, assault, etc
- 2 years to life imprisonment
depending on the offence could be tried in Provincial or Superior Court
- Jury/No jury
Hybrid
- an offence that the Crown can try either as a summary or indictable offence
- always treated as indictable until charges are laid in court, then the court must decide how to treat the offence
- Provincial or Superior Court
- Jury/No Jury
- Starts as an Indictable but may get kicked down to a summary depending on mitigating factors (if they have a criminal record, etc) and the avalibility of the courts
What does non-culpable homicide mean? Give 2 examples where it may apply.
Non-culpable homicide is a killing for which a person cannot be held legally responsible. Basically, you’ve killed someone but you’re not found guilty of it.
It applies when:
- You’re a soldier in times of war
- You’re self-defending
What is the difference between 1st and 2nd-degree murder?
The amount of planning and Mens Rea involved.
Why is trafficking drugs a worse offence than possession?
Trafficking drugs is a worse offence than possession because you are harming the public by distributing the drugs to others.
What is the rule you need to remember if you are going to use self-defence as a defence?
You may only use the reasonable force necessary to defend against the attack otherwise you will be charged will assault because we do not have Castle laws in Canada.
What are the goals of sentencing? Deterrence, retribution etc..
Punishment - To show that there are consequences, Society condemns your actions
Deterrence - To stop others from committing crimes and to prevent offenders from reoffending (recidivism)
Retribution - To award those who were wronged
Protection of the Public - Main concern, Protection of people, property, individual rights and public morals
What are some of the sentences that can be issued by a judge? Closed custody etc..
Closed custody = penitentiary or jail
Open Custody = bush camp, farm camp, community residence
Intermittent Sentences = fewer than 90 days, can be served on week-ends
What does Recidivism mean?
The rate of an offender re-offending and returning to a life of crime after serving jail time.
What is the difference between Aggravating and Mitigating factors in a crime?
Mitigating factors in a crime can lessen the charges such as if the accused doesn’t have a criminal record.
Aggravating factors can increase the charges and the severity of the crime, such as if a person murdered someone and then mutilated the body.
What is Plea Bargaining?
Plea Bargaining is when you plea out and form an agreement with the court to plead guilty, get a lesser charge, and then not have to attend an expensive trial.
What is the difference between a concurrent and consecutive sentence?
Consecutive sentences are sentences back to back while concurrent sentences are ones served together and often, for life. In Canada we do not really use concurrent sentences, the USA does.
What is Restorative Justice? How does it differ from the traditional Canadian Court System?
Restorative justice (also know as alternative justice): differs from traditional approaches because it focuses on using joint problem-solving to deal with the harmful effects of crime.
Differences
Courts 1. Crime is defined as a violation of rules as harm to the state
RJP 1. Crime is seen as harm done to victims and communities
Courts 2. Victim has limited opportunity to speak about his/her injury, loss and needs during the trial
RJP 2. Victim is central to the process of defining the harm and how it might be prepared
Courts 3. Offender, victim, and community remain passive and have little responsibility for a resolution.
RJP 3. Offender, victim, and community actively participate in the resolution that results from restorative forum
Courts 4. Community’s role is limited
RJP 4. Community is actively involved in holding offenders accountable, supporting victims, and providing opportunities for offenders to make amends
Courts 5. Restitutions are rare
RJP 5. Restitution is normal
Courts 6. Process is controlled and operated by the state and by professionals who may seem remote
RJP 6. Process is overseen by the state but is usually driven by communities
Courts 7. Offender is blamed, stigmatized, and punished
RJP 7. Offender is reintegrated into the community and his/her dignity is preserved.
Courts 8. Repentance and forgiveness are rarely considered
RJP 8. Repentance and forgiveness are encouraged.
Courts 9. Process assumes win-loss outcomes
RJP 9. Process makes win-win outcomes possible.
Florida v William Kennedy Smith
Summary
- The Palm Beach rape case against William Kennedy Smith has shifted from media scrutiny to legal proceedings.
- Lead prosecutor Moira Lasch seeks to introduce evidence of Smith’s past similar assaults, invoking the controversial Williams Rule in Florida.
- Judge Mary Lupo must balance Smith’s fair trial rights with the prosecution’s use of the Williams Rule, allowing evidence of prior similar acts.
- Smith faces accusations of sexual battery on a Florida woman at the -Kennedy family estate, with Lasch’s office seeking testimony from three other women alleging past assaults.
- The Williams Rule, dating back to 1959, permits evidence of prior acts as circumstantial proof, akin to a federal rule of evidence.
- Defence attorneys are barred by the judge from disclosing the victimss past drug use and sexual history, while prosecutors emphasize her credibility and emotional distress.
- “That she is an unwed mother who has had three abortions, that she has used cocaine, and that she once belonged to a Palm Beach social set known for wild parties and heavy drug use.”
Florida v William Kennedy Smith
Significance to Class Concepts
- Evidence: The bad character and prior bad acts of the accused are not allowed UNLESS they show a pattern of behaviour (Raping three other women before)
- Rape Shield Laws:
- Sections 276 and 277 of the Criminal Code prevent defence attorneys from placing a rape victim’s previous sexual history in evidence during a rape trial
- Section 276 – barring all sexual history except with the accused was struck down as unconstitutional and now there is an in-camera hearing to determine the relevancy of the victim’s previous sexual history
- Section 273.2 disallowed belief of consent as a defence in rape cases – “no means no” provision – the defendant must make all reasonable attempts to have ensured consent
R. v Hornick
Summary
- P Hornick and Rachel Aitcheson faced liquor charges related to their organization of a women’s bathhouse event in September 2000 although the women did put their name son a special event permit for the night.
- 5 Male police officers, responding to a criminal complaint, infiltrated the event, even though 2 undercover female agents were already present and investigating.
- The men went inside to see naked women - they counted how many topless women there were
- Judge Peter Hryn dismissed all charges, citing officers’ breach of constitutional rights and likening their behaviour to “visual rape.”
- Hryn emphasized the women’s right to a safe space for sexual exploration, free from male intrusion.
- The defence argued that male officers’ presence infringed upon the privacy of hosts and guests.
- The case revealed that male officers had planned to enter the bathhouse, indicating a desire to see naked women.
- Outcome: The verdict sparked discussions on police conduct and privacy rights, leading to complaints against the police and calls for an apology. The police commissioner briefly apologized just because they had to The LGBTQ+ community did not accept it because it wasn’t meaningful as it was not supported by any change in the way the police treat gay communities.
- In 2005, a class-action lawsuit and complaint to the Ontario Human Rights Commission resulted in a $350,000 settlement, part of which covered legal fees and part of which was donated to charities of the complainants’ choice.
R. v Hornick
Significance to Class Concepts
Police Search Powers under the Charter:
Police conduct and thus search powers are governed by the charter and being that the officers raided the bathhouse with the intention of seeing naked women as there were already 2 female officers present and undercover in a female safe space, they mostly violated their section 2 and section 8 rights by invading the bathhouse.
- Section 2b) - Freedom of Expression - The lesbian women exploring their sexuality could not express themselves because men were there in a female safe space.
- Section 8: Search and Seizure - no search warrant, no reason for five male cops to be there.
Other Charter Sections:
Section 1: Limits - The police officer’s gross misconduct went beyond reasonable limits as set out by the charter in a free and democratic society.
Section 2: Freedom of Expression - The lesbian women exploring their sexuality could not express themselves because men were there in a female safe space.
Section 7: Safety and Security - By intruding on a female safe space, these men endangered the safety and security of the women.
Section 8: Search and Seizure - no search warrant, no reason for five male cops to be there
Section 12: No cruel or unusual punishment - being looked at by men could be arguably cruel and unusual punishment.
Section 15: Equality Rights - Not being treated equally due to their sexual orientation
Overall Breach of Privacy: “Though the male officers did not see Aitcheson and Hornick unclothed, their lawyer Frank Addario said that, as hosts of the event, their privacy rights were violated because male officers did see their naked and partly naked guests” + “I find in this case there was a reasonable expectation of privacy vis a vis men in general and male police officers,” said Hryn “I find the search, in this case, was analogous to a strip search…. If patrons were taken to a police station, they would have been searched by other female officers.”
Detainment: When the detective was stopping the host of the event at her door and preventing her from running the bathhouse event he was detaining and entraping her as she was not arrested at that point.
R. v Moore
Summary
- Douglas Donald Moore, a serial pedophile, was given parole in June 1997 after completing a 16-month sex offender treatment program.
- The parole board deemed Moore rehabilitated, citing his understanding of his crimes, sobriety, acknowledgment of his sexuality, and claimed disinterest in sex with children.
- Moore subsequently hanged himself in April 2004 at Maplehurst Correctional Complex after then being charged with sexually assaulting three boys in a foster home and becoming a suspect in the slaying of three young men.
- Despite Moore’s release, the parole board had previously deemed him highly likely to re-offend due to his extensive criminal history, including sexual assaults on multiple boys in Ontario and British Columbia.
- Moore underwent treatment at the Regional Treatment Centre in Kingston Penitentiary, focusing on therapy and relapse prevention.
- He was initially denied release during treatment but later impressed the parole board with his progress.
- The case prompted calls for legislative changes regarding public notification of sex offenders’ presence in communities and retroactive inclusion in the sex offender registry.
- Debate surrounds the effectiveness of sex offender treatment, with some experts skeptical of its efficacy, citing the manipulative nature of psychopathic offenders like Moore.
R. v Brown
Summary
- Decovan Brown, a young black man, was driving an expensive car on an urban highway on November 1, 1999.
- He was stopped by police for driving slightly above the speed limit in an area known for common speeding practices.
- Brown was subjected to a roadside screening test and arrested under s. 253 of the Criminal Code for driving with excessive blood-alcohol levels.
- At trial, Brown’s lawyer argued that his rights under s. 9 of the Charter, freedom from arbitrary detention, were violated due to racial profiling.
- Brown claimed he was stopped not because of his driving but due to racial stereotypes about young black men driving expensive cars.
- The defence presented evidence challenging the credibility of the arresting officer, supported by reliable independent evidence and Brown’s testimony.
- Throughout the trial, the judge frequently intervened, displaying a favourable bias towards the arresting officer and skepticism towards Brown’s claims.
- The trial judge’s remarks during cross-examination and sentencing suggested bias and an inclination to dismiss Brown’s allegations of racial profiling.
- Despite the defence’s arguments, Brown was convicted.
- Brown appealed his conviction to the Ontario Superior Court of Justice, where Justice Trafford overturned the conviction due to a reasonable apprehension of bias on the part of the trial judge.
- Justice Trafford emphasized the difficulty in proving racism directly, highlighting the importance of impartiality and sensitivity to allegations of racial profiling.
- The Ontario Court of Appeal upheld Justice Trafford’s decision, acknowledging evidence supporting racial profiling and dismissing the Crown’s appeal..
R. v Moore
Significance to Class Concepts:
The Effectiveness of Alternative Sentencing:
- I do not think that Douglas Donald Moore should have received parole because Moore was already repeating his actions - in 1986 he sexually assaulted 4 boys (sentencing him to probation), then in 1989 he was sentenced to 4 years for attacking a 12-year-old, then he was released in 1991, violated his probation and raped a 14-year Toronto-area boy, this earned him 4 more years, and then in 1995 he was sent to a treatment centre until 1997 when he was released and then sexually attacked three more boys.
- While I’m sure that Moore was able to lie his way into appearing to have improved at the treatment centre, this is not someone who should have even been at a treatment centre, he should have been incarcerated for a long time.
- Clearly, if prior to the treatment centre he had already committed three separate acts of sexual assault, sexual attack, and rape, he was not going to improve.
- I do not understand why Moore consistently received such light punishments - he was only put on probation, he was only sentenced for 4 years which became 8, and then he was sent to a treatment centre which eventually granted him parole.
- In my opinion, he shouldn’t have just been denied parole but he should have been incarcerated at a penitentiary and the public should have been better protected.
- However, in different cases, I do believe alternative sentences are viable and useful, I just think that in a case where we saw repeated behaviour even prior to the treatment centre, Moore should have been treated as the threat that he was and is to society because ultimately the courts failed to protect the public in this case.
- Alternative sentences should only be placed when a certain behaviour has not occurred more than once, otherwise, they do not recognize the clear character of an individual who is going to struggle to change.
R v. Brown
Significance to Class Concepts
Racial Profiling: R. v. Brown illustrates racial profiling, where individuals are targeted based on race rather than behaviour. Brown’s arrest while driving an expensive car reflects a systemic racial bias in law enforcement.
Judicial Bias: The trial judge’s actions, including skepticism towards Brown’s claims and urging Brown to apologize to the officer, demonstrate judicial bias. This bias influenced the trial’s fairness and contributed to Brown’s conviction being overturned on appeal, highlighting the importance of impartiality in judicial proceedings.
R v Bernardo
Summary
- “Scarborough rapist” - disappeared at one point, then teen girls started disappearing down in St. Catharines, Toronto in the late 1990s
- Later they find out through good police work, DNA, etc that a couple is doing this - a duo of Serial killers, take his DNA, connect him back to the Scarborough raping, but he moved - they sexually assaulted and killed a younger sister and two young girls
- The wife was asked to testify against the husband, and she did, said she was a victim of domestic abuse - and told the cops that she had nothing to do with this, but she wanted a plea bargain, got a 10-year sentence and she took it immediately
- It comes to light that everything was videotaped after she had gone through the court system, showing that she was participating in what was going on - Bernado said he did the raping but she did the killing
- But now it’s a situation of double jeopardy, she cannot be tried again even though she was super involved
- This got huge press - good-looking white people in a couple male and female that are serial killers are rare - leading to a publication ban because it might sully the jury pool
R v Bernardo
Significance to Class Concepts
The Idea of an Impartial Jury & Publication Bans:
- Judges will often impose a publication ban to prevent the jury from having access to information not presented in front of the jury
- The Criminal Code provides a ban on any publication in any newspaper or broadcast with respect to any portion of the trial at which the jury is not present.
In the Bernardo case, this was particularly difficult for two reasons:
- The American media refused to follow the ban – and most -Canadians have ready access to American news
- Most jurors had already had access to a great deal of information before the trial
Classical Theory
Characteristics or Beliefs of Theory
Solutions to Crime
Characteristics or Beliefs of Theory
- Crime is caused by the individuals free will
- Human beings are rational and make decisions freely and with the understanding of consequences
- Crime is an immoral form of human behaviour
- Such behaviour weakens society
Solutions to Crime
- Punishment is a necessary evil sometimes intended to deter criminals and serve as an example to those who would violate the law
- Crime prevention is possible through swift and certain punishment that counters possible gains from criminal behaviour
- More prisons and stiffer criminal laws with greater penalties for offenders are the best solutions to crime
Biological Theory
Characteristics or Beliefs of Theory
Solutions to Crime
Characteristics or Beliefs of Theory
- The basic determinants of human behaviour are to a considerable degree, determined by genetics
- These basic determinants of human behaviour may be passed from one generation to the next
- Human DNA, environmental contaminants, nutrition, hormones, trauma to the brain, exposure to drugs and alcohol during pregnancy and body chemistry can all contribute to criminal behaviour.
Solutions to Crime
- Historically, individuals with genetic defects have been sterilized (meaning there will be no offspring)
- Research to find genes that encourage criminal behaviour
- Research into medicines (tranquillizers, antipsychotic drugs and other mood-altering drugs to control behaviour)
Sociological Theory
Characteristics or Beliefs of Theory
Solutions to Crime
Characteristics of Beliefs of Theory
- Social Environment as the cause of criminal behaviour
- Weak, broken bonds with family, school, and religion as catalysts to human behaviour
- People engage in criminal behaviour because they do not see the benefits of adhering to conventional social values and believe that crime is a way to improve their social, and financial conditions
Solutions to Crime
- Positive alternatives divert people’s actions away from criminal activity and create a sense of belonging, competence, and empowerment
- Social programs that change the cultural and social conditions that lead people to crime
Interactionist Theory
Characteristics or Beliefs of Theory
Solutions to Crime
Characteristics or Beliefs of Theory
- Association with other criminals is the factor most contributing to criminal behaviour among individuals.
- Failure of self-direction and inadequate social roles are the root causes of behaviour
- Individuals are looking for acceptance, social standing and power within that group
Solutions to Crime
- Offenders have the responsibility and ability to change their own behaviours
- Opportunities for positive interaction with society will enable the criminal to choose productive and lawful behaviours to meet needs
The purpose of criminal law is…
the protection of personal safety, property, social order, and certain standards of public decency as can be seen in the 11 classifications of criminal offences in the Criminal Code.
Actus Reus – the guilty act
- May be an action (beating a child) or lack of action “omission” (failure to provide the necessities)
- Usually defined in the statutory provisions about that crime
- Must be a voluntary act (willful, conscious)
Mens Rea – the guilty mind
Elements of intention and knowledge
Criminal Law in Canada (3 points)
- Criminal law: Punishes behaviour causing injury to people or property.
- Mostly made by the federal government; some by provincial/municipal governments (quasi-criminal).
- Most criminal laws are found in the Criminal Code of Canada: Which describes crimes and procedures; and applies nationwide.
Principles of Criminal Law
- Presumption of innocence:
- The burden of proof
- Beyond a reasonable doubt
Presumption of innocence:
Accused presumed innocent until proven guilty.
The burden of proof:
means that it is the Crown counsel’s responsibility to prove that the accused is guilty, the defence lawyer does not have to prove that the accused is innocent.
Beyond a reasonable doubt:
the expression used when determining the likelihood that the accused committed a crime.
The Crown must prove that the accused is guilty and there cannot be any reasonable doubt about it in the minds of the judge or jury - If there is a reasonable doubt then the accused must be found not guilty.
Types of Crime
In the Criminal Code of Canada, three broad categories of criminal offences are used.
- Summary conviction offences
- Indictable offences
- Dual or hybrid offences
Summary conviction offences:
Less serious; up to 6 months in prison or fine.
Ie. Like a speeding ticket
Indictable offences:
More serious; life sentences and larger fines.
Ie. Your murders, rapes, etc.
Dual or hybrid offences:
These can be summary or indictable based on the Crown’s election.
For some hybrid offences, summary proceedings can result in penalties higher than those allowable for straight summary offences (for example, assault causing bodily harm, upon summary conviction, is punishable by a maximum of 18 months in jail.)
The Criminal Code of Canada has distinguished between different types of offences for three reasons.
First, some offences cause greater harm to individuals or society.
Second, some offences are considered more morally repugnant than others.
Third, because some offences are conducted against property while others are against people.
The Elements of a Crime
A crime occurs when an individual breaks one of our criminal laws.
Every crime has 2 parts: Actus reus (physical action) and 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
Actus Reus: Physical Action and More
Definition & Examples
Definition: Actus reus is more than just an action; it can be an omission (failure to act when required to do so) or a state of being.
Examples:
- Possession of illegal narcotics is a state of being, not just an action.
- Failure to provide basic necessities for a child’s survival is an omission and a crime.
Proof Requirements for Actus Reus - Proof of the physical element requires more than simply determining an act, omission or state of being exists. It is necessary to consider the four C’s:
The four C’s: Conduct, Consequences, Circumstances, Causation.
Conduct (an act, omission to act or a state of being) must be voluntary for criminal responsibility.
Consequences refer to outcomes of specific acts, like death in a homicide.
Circumstances are relevant conditions making an act criminal, e.g., trespassing at night without consent
Causation: The accused’s conduct must cause the criminal act ie. If Sally is charged with murdering Bill then it must be proven that Sally’s conduct caused the death of Bill.
Mens Rea: The Guilty Mind
Definition
Definition: Refers to the the intention, knowledge, or recklessness of the accused. The law states we must mean to cause a wrongful consequence. Words like ‘willfully,’ ‘means to’ or ‘intentionally’ are used to describe a state of mind.
Mens Rea: The Guilty Mind
Types: there are two basic types of intention…
Specific intent: frequently use the phrase ‘with intent’ or ‘for the purpose of’ to demonstrate a specific purpose behind the crime
General intent: those that do not require a further purpose or intention and are often crimes committed in moments of uncontrolled passion or aggression.
Mens Rea: The Guilty Mind
Knowledge:
Knowledge: The accused must have knowledge of the specific circumstances of the crime.
Phrases like ‘knowingly’ or ‘knowing’ indicate this.
For example, to knowingly lie to a judge or jury is called perjury and is a criminal offence but to give false evidence unknowingly is not a criminal offence.
Mens Rea: The Guilty Mind
Recklessness:
Recklessness: Unduly careless actions without good judgment or foresight.
Ie. If one drives 100km/h through a school zone in the daytime, with no intention of killing or harming a child, and hits a child crossing the street and that child dies, the law would use recklessness to establish the guilty mind.
Mens Rea: The Guilty Mind
Motive:
Motive: Not necessary to establish why an accused committed an offence; can affect sentencing (mitigate or aggravate)
Other Elements of Crime (4 points)
- Attempted Crimes
- Party to an Offence
- Conspiracy
- Counselling
Attempted Crimes:
A crime is considered attempted if it can be established that there was the intention, that some act toward committing the offence occurred and that the offence did not reach full completion.
Party to an Offence:
Anyone aiding, assisting, or agreeing to commit a crime is a party to it and can be charged under the Criminal Code as though they had actually committed the offence.
Aiding or assisting someone that you know to have committed a crime is also a separate offence in Canada
Where people form an intention and common purpose to carry out an unlawful act and any one of them commits a crime in carrying out the common purpose, each person who knew that the criminal act was a likely consequence of the common purpose is also a party to that crime.
Conspiracy:
Agreeing to commit an offence is a crime, regardless of completion.
Counselling:
Advising others to commit an offence is unlawful.
Possession of stolen property:
Having something in your possession or control that you knew was stolen.
Fraud:
Lying to or deceiving someone to gain a personal benefit.
Second-degree murder:
Causing and intending to cause another person’s death.
First-degree murder:
Intending to and killing someone according to a plan.
Armed robbery:
Using physical force and a weapon to take property away from someone.
Contempt of court:
Disregarding and disobeying an order made by a judge.
Trafficking of a narcotic:
Selling illegal or prohibited substances such as cocaine or heroin.
Manslaughter:
Causing another person’s death without intent.
Impaired driving:
Operating a vehicle while physically and mentally unable to do so.
Failure to appear:
Failing to come to court when you have been required to do so.
Possession of a weapon:
Carrying a weapon that might be dangerous to the safety of others.
Arson:
Willfully and deliberately setting a fire to damage property.
What is criminal behaviour?
- Conduct that may harm personal safety and health, property and general social order.
- Although the victim may be a single person, criminal conduct is always viewed as a crime against the state.
- *The Crown - the queen or king represents the state, where we historically got our laws, you are not committing the crime against one person, but against us all
Ie. a Fistfight, even when resolved, is not okay because a fistfighter is now someone who is a problem for the state, a danger to all of us
- When you do something in Canada you are doing it against all of us, not just one person
Why do people commit crimes?
A variety of theories have been proposed to explain why some people commit crime:
- Classical Theory
- Positivism
- Psychological Theories
- Sociological Theories
- Interactionist Theory
Classical Theory
– crime is rational, calculated behaviour
There are always lots of mes rea involved, not always true, sometimes people just snap - “We never thought he was like that”
Positivism Theory
– biological factors important to why we commit crime
Our DNA, our makeup, the way we are, hormonal issues, and mental illnesses, schizophrenia lead to breaks and crimes
Psychological Theories
– past guilt, personality disorders etc, cause crime
Serial killers - things that evolved from their childhood (physical beatings, sexual assault), animal abuse, arson
Sociological Theories
– social environment causes crime
Not the nature but the nurture
aspect, how you were brought up and lived
Interactionist Theory
– interaction with other criminals causes crime
People who go into penitentiaries, become worse criminals in jail and learn from others
Some People More Likely to Commit Crime
Age: 15 – 18
Developmental stage, impulse control happens, and you have more freedom
Gender: Male
Poverty: Stresses associated with lack of money can lead to criminal behaviour
Certain cultures ie. Indigenous people are over-represented in penitentiaries because of clearly an underlying issue like poverty
What should be a crime?
Should criminal law solely concern itself with personal and public safety OR also prohibit behaviour that violates prevailing moral norms?
Ie. Decriminalizing prostitution would be very logical (wages, age restriction, medical protection, security, etc) but morality comes into play when we look at WHAT is being sold
Ie. Marijuana is legalized now, you are not necessarily a bad person for using it, Canada was the second nation in the world to legalize it
No other form of positive law (personal law) clashes more with personal liberty than…
criminal law.
Criminal law restricts your behaviour and can remove all your liberty if you do not obey it.
The reasons for this deprivation of liberty (that criminal law causes) are:
- Private Harm Principle
- Public Harm Principle
- Offence Principle
- Legal Paternalism
- Legal Moralism
Private Harm Principle:
To prevent injury to others
Assault, murder, arson, robbery, theft, etc, not injuring anyone else
Public Harm Principle:
To prevent damage to public institutions and practices
Vandalism to the state, because we need the state to work properly or we fall apart, etc
The idea is that without these laws, there is complete chaos
Offence Principle:
To prevent offence to others
Legal Paternalism:
To prevent harm to oneself
The worry is that we are going to hurt ourselves
Laws the states put in place to protect us, nanny laws ie. jaywalking
Legal Moralism:
To prevent and punish sin, or the enforcement of morality
Issues with it because what is sin? It varies from one person to another
That’s why laws change over time, these laws are malleable
Strict Liability
- Do not require proof of Mens Rea
- Usually found in statutes other than the Criminal Code
- Not criminal in the true sense but exists for the general protection of the public and results in fine/imprisonment
- Merely to commit the offence renders the doer guilty, the intent has no relevance
- There is a defence to strict liability cases (Reasonable Care Defence) i.e. Environmental Abuses
Absolute Liability
- Reasonable care is not accepted as a defence
- Mens Rea not necessary to be proven
- Since absolute offences admit no defence if the Crown proves Actus Reus exists, the Supreme Court of Canada decided such offences cannot provide imprisonment i.e. Speeding Tickets
The purposes of Criminal Law could be stated as protection of:
- One’s own safety
- The safety of others
- Property
- Standards of decency
- Public order
- People from exploitation
The Crime Scene…
Is a rich source of physical evidence and must be secured to avoid tampering or lost evidence.
When arriving at a crime scene the officer must:
- arrest the suspect
- assist the injured
- eliminate potential risks
- determine and secure the boundaries of the crime scene
- Section 129 of the Criminal Code allows police to cordon off and refuse entry to the crime scene.
- Police also have the right to seize any evidence in the crime scene and keep the areas secure until released by the coroner.
