Lec 2 Flashcards
What is a crime
Crime is any conduct that has a prescribed punishment
Where are crimes defined
Criminal code/law of Canada
Indictable offences
Murder, kidnapping, terrorism, drug trafficking, robbery, aggravated sexual assault
Min 2 years
Max life in prison
Summary offences
Soliciting a prostitute, drunk driving, causing a public disturbance– less harmful offences
Max penalty is 5k
Mixed or hybrid offences
Assault, sexual assault, assault with a weapon, theft under 5k, fraud under 5k
Can be tried as either kind of offence
Actus reus
Refers to the guilty action or all non-mental elements of a crime
Actus reus consists of three elements
Conduct (voluntary)
Circumstances
Consequences
Does Canada have “duty to rescue” laws
No but Quebec is an exception (people have the obligation to protect others from harm if they have no harm caused to themselves)
Under what circumstances in the Canada Criminal Code is failure to act a crime
-There was a pre-existing duty to act (eg. parents)
-An individual creates a hazardous situation
Mens rea
Refers to the mental elements contained in the definition of a criminal offence
-Guilty mind
Subjective mens rea- relating to the individual context
The accused should be convicted if
They deliberately intended the consequences
They subjectively realized the consequences might occur
They were willfully blind to the consequences
Objective mens rea- relating to the general context
Someone should be convicted if a reasonable person would have avoided the act
The judge or jury decide whether the accuse acted reasonably
When is objective mens rea not used
Serious crimes such as murder that require proof of subjective mens rea
Strict liability offences
Applies to most regulatory offences (eg driving offences)
The accused has to she he was not negligent
Accused assumed to know the regulations
Penalties are lenient
No intentions needed
Criminal law
Defines meaning of crimes and identifies penalties
What does criminal law adress
True crimes
3 components of criminal law
Prohibition
Sanction
Directed against a “public evil”
Legislation sources of criminal law in Canada
Constitution (Act of 1867)
Statutes-Criminal code of Canada
Regulatory Law
Other sources of Criminal law in Canada
Common Law (except Quebec which retains French system)
International law from the UN
The Criminal code of Canada
First passed in 1892
Defines criminal acts and the legal elements that must be present for a conviction
Specifies the criminal procedure to be followed in prosecuting a case and the powers of CJS officials
Minimum Age of Criminal Responsibility in Canada
12 years of age (UN recommend)
What form of defense is given to a child below the age of 12
Defense of infancy
Parties to criminal offences (section 21)
A person can be convicted of a crime if
They commit the offence
Assists in the offence
Formed common intention with others to commit an offence
Counsels the commission of an offence
Accessory after the fact (Unintentionally helps someone after the crime)
Inchoate crimes
The accuser seeks to bring about commission of a particular crime, but he/she isn’t successful in doing so
Examples of inchoate crimes
Attempt, conspiracy, counselling
Defense of not criminally responsible on account of mental disorder (NCRMD)
Absence of a “guilty mind”-mens rea
It does not mean freedom to the accused
Do most individuals in the NCMRD commit violent crimes
No, less than 3 percent of all violent crimes come from people with mental illness
Where do most NCMRD cases come from
BC Ontario Quebec
Allan Schoeborn
Killed his three children but wasn’t sane at the time of the killings, is now in a psychiatric hospital in BC
Defense of mistake of fact
The accused made an honest mistake that resulted in a crime
Defense of intoxication
May be a defense if it prevents the accused from forming intent required for a specific offence.
Expert evidence is needed for successful defense
Can defenses get rid of a sentence
No, only lessen them
Defense of necessity
The person commits a less evil of a crime to avoid a greater evil
The shipwrecked sailors case
Dudley and Stephens were convicted of murder which was later turned into a 6 month prison term
Defense of duress
The accused was forced to commit a crime as a consequence of threats of death or serious bodily harm made by another person
Defense of duress factors
Threatened action must be illegal
Causal link between defendants action and the threat
Immediacy is crucial
Defendant must have had no reasonable opportunity to act otherwise
Defense of provocation
The accused responded to such a wrongful act that an ordinary person would have done the same
Can reduce murder to manslaughter
Defense of self-defense factors
The nature of the threat and response
The imminency of the threat
Other means available to respond
The person’s role in the incident
Relationship between parties
Section 34 of the Canada criminal code states
A person may use a reasonable amount of force in self defense if they were to become a victim of assult
