CRIMINAL LAW

‘The only thing necessary for the triumph of evil is for good men to do nothing.’

Edmund Burke (1729-1797),British parliamentarian and political thinker

The Nature of Crime

Crime• An act, or omission of an act, or state of

being that is prohibited and punishable, as defined in the Criminal Code or by federal statute

The Law Reform Commission of Canada has stated that, in general, four conditions must exist for an act or omission to be considered a crime:

1. The act is considered wrong by society.2. The act causes harm to society in general

and any individual victims.3. The harm caused by the person’s actions

must be serious.4. The person committing the crime must

be punished by the criminal justice system.

Criminal Code of CanadaSection 91 (27) Constitution Act, 18671892 – Criminal Code of Canada enacted.1955 – Reduced from 1100 sections to 7531986 – Revised draft to make less complicated

Parliament failed to implement revisions

• A federal statute that contains the majority of the criminal laws passed by Parliament.

• The Criminal Code lists not only the offences, but also the sentences to be imposed and the procedures to follow when trying those accused of crimes.

• The Code is meant to reflect the social values of the majority of Canadians.

• Parliament amends the the Code to reflect the change in values or to ensure the protection of Canadian society.

Canadian Criminal Code: http://laws-lois.justice.gc.ca/eng/acts/C-46/

Summary Conviction vs. Indictable OffencesSummary Conviction Offence:A minor criminal offence with less sever punishments, which is usually tried soon after the charge is laid (summarily) without a preliminary hearing or jury

Ex. Heckling or bullying; possession of a certain amount of marijuana• There is a 6 month limitation period for laying a charge for a summary conviction offence

Indictable Offence:A serious offence with a severe penalty, proceeding by way of a formal court document called an indictment. The Criminal Code sets a maximum penalty for each offence.

Ex. robbery, murder, breaking and entering• There is no statute of limitations (time limit) for laying a charge of an indictable offence

• For serious indictable offences, the accused can choose whether to be tried by a prov. Court judge alone, by a judge of the superior court of the province or territory alone, or by a judge of the higher court with a jury.

Hybrid Offence:A criminal offence proceeding by way of a summary conviction or an indictable offence; the Crown decides which way to proceed. The Crown often bases its decision on the previous record of the accused.

Ex. impaired driving, assault, public mischief, and theft under $5000Penalties vary…..from two years imprisonment to 10 years

Elements of a Crime

Actus Reus +Mens Rea

= Crime

‘the guilty act’ – demonstrates a voluntary action, omission, or state of being is that prohibited by law

‘the guilty mind’ – demonstrates that the act was intentional, knowing, negligent, reckless, or willfully blind

Intent: • a state of mind in which someone desires to carry out a wrongful action, knows what the

results will be, and is reckless regarding the consequences.

general intent: the desire to commit a wrongful act, with no ulterior motive/ purpose

specific intent: the desire to commit one wrongful act for the sake of accomplishing another

Note that intent is not the same as motive. Intent involves the anticipated direct outcome of an act, in the specific and general sense. Motive on the other hand, is the underlying rationale (reason) for committing a crime. While a motive may be useful evidence in a trial, it is not one of the elements of the offence that the Crown must prove in order to convict the accused.

Criminal Code of Canada: Selected Sections

Identify:• Mens Rea (intent/knowledge/recklessness)• Actus Reus (action/omission/state of being)• Punishment

Identify:• Mens Rea

(intent/knowledge/recklessness)• Actus Reus (action/omission/state

of being)• Punishment

Criminal Code of Canada: Selected Sections

Criminal Code of Canada: Selected Sections

Identify:• Mens Rea (intent/knowledge/recklessness)• Actus Reus (action/omission/state of being)• Punishment

Criminal Code of Canada: Selected Sections

Identify:• Mens Rea

(intent/knowledge/recklessness)

• Actus Reus (action/omission/state of being)

• Punishment

Understanding and Comprehension What kind of law is the Criminal Code of Canada? How can the Criminal Code be changed? What are the two conditions that compose a criminal act? What makes an action criminal?

Critical Thinking and Application What factors influence what kind of actions are determined to be criminal? Is the Criminal Code infallible? Should a criminal code be reflective or aspirational of a society’s cultural, moral, political,

philosophical beliefs?

In Review…Thinking it Through

Parties to an Offenceperpetrator: the person who actually commits the crime

parties to an offence: those people who are indirectly involved in committing a crime

aiding: a criminal offence that involves helping a perpetrator commit a crime

abetting: the crime of encouraging the perpetrator to commit an offence

counselling: a crime that involves advising, recommending, or persuading another person to commit a criminal offence

accessory after the fact: someone who knowingly receives, comforts, or assists a perpetrator in escaping from the police

conspiracy: an agreement between two or more people to carry out an illegal act, even if that act does not actually occur

Case Study: Aiding or Abetting?R. v. Goodine, 1993One summer afternoon in 1992, Todd Johnston went for a ride with his girlfriend and two friends, Jason Boyd and Cory Goodine. After driving on country roads near Arthurette, New Brunswick, Johnston stopped the truck. Without warning, he shot Boyd in the head with a revolver. He then removed Boyd’s body from the truck and dragged it a short distance.

Still holding the revolver, Johnston ordered Goodine to ‘get off the truck and help me because you are in on this, too.’ Goodine obeyed Johnston’s orders to drag the body into the woods. When the victim moaned, Johnston shot Boyd again in the back of the head. Medical evidence at trial indicated that either shot would have caused Boyd’s death.

A few days later, Goodine told two of his friends about the murder and led them to Boyd’s body. The next day, the friends reported the incident to the police. They arrested Goodine and charged him with being an accessory after the fact to murder. The juryacquitted the accused following a trial. The Crown appealed to the Court of Appeal, but the appeal was dismissed.

Goodine was not charged. Why do you think that was. Explain your reasoning.

The Provincial Court SystemThe provincial court is at the bottom of the hierarchy of Canadian courts.

This court:

• arraigns the accused (reads the charge and enters the plea) in all criminal cases

• holds preliminary hearings for the most severe indictable offences, where the accused elects to have the case tried in a higher court

• hears and tries criminal summary conviction cases and the least serious indictable offences such as theft under $5000

preliminary hearings: a judicial inquiry to determine whether there is sufficient evidence to put the accused person on trial

• serves as a screening process and protects the accused person from an unnecessary trial; it also protects the Crown and the public from the expense of a trial that may not be required.

The judges in this court are appointed by the provincial court.

Superior Courts of the ProvincesThe superior court of the province is the highest level of the provincial criminal and civil court system. It consists of a trial division and appeal division.

This court:

• tries the more severe crimes such as manslaughter and sexual assault and the most severe indictable offences such as murder and armed robbery

• hears criminal appeals in summary conviction cases

• sets provincial precedent; decisions must be followed by provincial court judges in that province

• can be composed of a judge alone or a judge and jury

The judges in this court are appointed by the federal government

Provincial Court of Appeal (Superior Court)This is the highest court and the final court of appeal in the province. Many appeals stop here as the Supreme Court of Canada accepts only appeals that are deemed to be of great importance.

This court:

• hears appeals from the trial division and provincial superior courts

• sets provincial precedent; decisions must be followed by all judges in that province

• has three to five judges to hear all appeals

The judges in this court are appointed by the federal government

Federal Courts of CanadaIn 2003, the former Federal Court of Canada was separated into two distinct courts:

i. the Federal Courtii. the Federal Court of Appeal

The Federal Court has jurisdiction over cases involving federal government boards, tribunals and commissions, and issues within federal jurisdiction. These include immigration and citizenship matters, and intellectual property, as well as cases involving the federal government.

The Federal Court of Appeal hears the appeals of decisions by the Federal Court. Decisions of this court may be appealed to the Supreme Court of Canada.

Supreme Court of CanadaThe SCC is the final court of appeal in Canada. Before it agrees to hear an appeal, the court determines if the issue is of great importance or if a question of law must be decided or interpreted. However, there is an automatic right of appeal when there is a split decision from a provincial court of appeal.

The Supreme Court of Canada:

• has unlimited jurisdiction in criminal matters• hears appeals from provincial appeal courts and the Federal Court of Appeal• hears cases of national importance (for example, interprets Charter of Rights and

Freedoms or clarifies a criminal law matter)• generally grants leave (permission) before the appeal will be heard• sets a national precedent in its judgments; these decisions must be followed by all judges

in all courts of Canada

The nine judges of the Supreme Court are appointed by the federal government and can serve until the age of 75.