Unit Three: Criminal Unit Three: Criminal LawLaw

Crime and Criminal Law Crime and Criminal Law

What is crime?What is crime?

Simplest legal definition = Simplest legal definition = “whatever Parliament defines as “whatever Parliament defines as crime”crime”

Under the Under the Constitution Act of Constitution Act of 1982, 1982, federal law makersfederal law makers the sole the sole authority to create legislation in authority to create legislation in relation to criminal law. relation to criminal law.

The Criminal CodeThe Criminal Code

Is a statute, passed and amended by Is a statute, passed and amended by the federal branch of Parliament. the federal branch of Parliament.

Outlines what actions are considered Outlines what actions are considered crimes, how offences are prosecuted, crimes, how offences are prosecuted, and what penalties are given. and what penalties are given.

The C.C. is not the only federal statute The C.C. is not the only federal statute to deal with crime (example: to deal with crime (example: Controlled Drugs and Substances ActControlled Drugs and Substances Act))

Amendments to the Code reflect Amendments to the Code reflect changes in society, emerging changes in society, emerging issues and the preoccupations of issues and the preoccupations of the federal governmentthe federal government

11stst C.C. was created in 1892, and C.C. was created in 1892, and was based upon the English was based upon the English common law of crimes common law of crimes

Changes have been made to the Changes have been made to the C.C., but no major overhaul has C.C., but no major overhaul has been conducted. been conducted.

Are you guilty of …..Are you guilty of …..

Section 71Section 71

- Prohibits dueling- Prohibits dueling s. 365s. 365

- Prohibits the fraudulent practice - Prohibits the fraudulent practice of witchcraft, sorcery, of witchcraft, sorcery, enchantment or casting spells. enchantment or casting spells.

Judge-Made Criminal Judge-Made Criminal Law Law While the C.C. lists offences, While the C.C. lists offences,

judges interpret them. judges interpret them. Remember: Judges rely on legal Remember: Judges rely on legal

precedents to assist them in precedents to assist them in interpreting the lawinterpreting the law

The issue of HIV/AIDSThe issue of HIV/AIDS

(R V. Ssenyonga) (R V. Ssenyonga)

HIV, SILENCE AND SEXHIV, SILENCE AND SEX

Case Study:Case Study:

R v. Cuerrier [1998]R v. Cuerrier [1998]

> Read and discuss > Read and discuss

* found on pages 234/235 * found on pages 234/235

Purpose of Criminal Purpose of Criminal Law Law Why do we have criminal law?Why do we have criminal law?- As a society, we need strong - As a society, we need strong

justifications for such an justifications for such an intervention to occur in our lives. intervention to occur in our lives.

Basic concept: its exists to label Basic concept: its exists to label bad behavior, to identify bad behavior, to identify violations, and to impose violations, and to impose penalties. penalties.

Two identifiable purposes: Two identifiable purposes: Retribution & Protection of societyRetribution & Protection of society

RetributionRetribution

Involves the public denouncing Involves the public denouncing and punishing wrong behaviorand punishing wrong behavior

In terms of criminal law, it focuses In terms of criminal law, it focuses on providing a fitting response to on providing a fitting response to a crime that may occur. a crime that may occur.

The idea that retribution should The idea that retribution should be fair. be fair.

Protection of SocietyProtection of Society

the concept of making society safer by the concept of making society safer by discouraging future wrongdoing. discouraging future wrongdoing.

also attempts to rehabilitate the also attempts to rehabilitate the criminals. criminals.

Main question: how far should the Main question: how far should the protective principle extends in justifying protective principle extends in justifying a state’s use of criminal law power? a state’s use of criminal law power?

Has been a struggle for politicians, Has been a struggle for politicians, Philosophers and theorists. Philosophers and theorists.

Who Commits Crimes?Who Commits Crimes?

Different explanations have focused Different explanations have focused on different elements of human natureon different elements of human nature

- example: biology, psychology, - example: biology, psychology,

economics, politics etceconomics, politics etc

Two theories have emerged from the Two theories have emerged from the early 20early 20thth century century

1)1) Underlying social and economic Underlying social and economic factorsfactors

2)2) Individual psychologyIndividual psychology

As the 20As the 20thth century progressed, century progressed, criminologist looked for more criminologist looked for more complex explanationscomplex explanations

The issue that crime continued to The issue that crime continued to grow despite the increase in the grow despite the increase in the overall standard of living overall standard of living

Who are the Victims of Who are the Victims of Crime?Crime?

We all make adjustments in our We all make adjustments in our daily routines that are designed daily routines that are designed to avoid or prevent crimeto avoid or prevent crime

Fear of victimization sometimes Fear of victimization sometimes limits our choices limits our choices

Do strategies we use to avoid Do strategies we use to avoid victimization make sense? victimization make sense?

Elements of an OffenceElements of an Offence

Actus Reus Actus Reus - definition: the wrongful act or omission definition: the wrongful act or omission

(failure to act) in a criminal offence (failure to act) in a criminal offence - Usually simple to identify the Usually simple to identify the actus reus actus reus

of a crime by reading the definition of of a crime by reading the definition of the offence set out of the C.C.the offence set out of the C.C.

- Possible Issue: example s.90(1) = what Possible Issue: example s.90(1) = what is considered a weapon?is considered a weapon?

- Actus Reus must be committed Actus Reus must be committed voluntarily voluntarily

Mens ReaMens Rea- definition: the blame worthy definition: the blame worthy

mental element in a criminal mental element in a criminal offence offence

- ““an act does not become guilty an act does not become guilty unless the mind is guilty”unless the mind is guilty”

- The technical term for a blame The technical term for a blame worthy state of mindworthy state of mind

- It must be proven, It must be proven, beyond a beyond a reasonable doubtreasonable doubt.” .”

Analyzing a Criminal Analyzing a Criminal Offence Offence Case example (R v. Cuerrier)Case example (R v. Cuerrier) Two aspects to the Two aspects to the actus reusactus reus of an of an

assault: direct v. indirection assault: direct v. indirection application of force to a person and application of force to a person and the lack of a person's consent the lack of a person's consent

Real world example: hockey games Real world example: hockey games If the If the actus reusactus reus in proven, what in proven, what mens mens

rearea is needed in order to convict an is needed in order to convict an individual with assault?individual with assault?

An interpretative presumption An interpretative presumption when dealing with the when dealing with the Criminal Criminal Code Code offences. offences.

Interpretive presumption: Interpretive presumption: inference that must accompany inference that must accompany the interpretation of a law. the interpretation of a law.

Subjective or Subjective or Objective?Objective? Over the course of history, courts Over the course of history, courts

have preferred one approach over have preferred one approach over the other. the other.

Initially, questions concerning Initially, questions concerning mens reamens rea were objective. were objective.

- People were presumed to intend - People were presumed to intend the natural consequences of their the natural consequences of their actions. actions.

Recently, courts have developed Recently, courts have developed a preference for the subjective a preference for the subjective view pointview point

Subjective theory states that the Subjective theory states that the Crown prove that the accused Crown prove that the accused had the intention at the time had the intention at the time crime was committed. crime was committed.

Absolute and Strict Absolute and Strict LiabilityLiability Regulatory offences ( traffic Regulatory offences ( traffic

offences, pollution offences etc) offences, pollution offences etc) Both the provincial and federal Both the provincial and federal

gov’t have the power to create a gov’t have the power to create a regulatory offence. regulatory offence.

The difference between r.o and The difference between r.o and crime is shown in the way in crime is shown in the way in which the Crown needs to prove which the Crown needs to prove its case. its case.

Until the mid 1970’s r.o. were treated Until the mid 1970’s r.o. were treated as absolute liability offences as absolute liability offences

Absolute liability = based on the Absolute liability = based on the commission of an commission of an actus reus actus reus without without regard to the regard to the mens rea.mens rea.

The Crown had to prove that the The Crown had to prove that the actus actus reus reus existed… existed… mens reamens rea didn’t matter didn’t matter

In 1978 the Supreme Court decided this In 1978 the Supreme Court decided this approach was unfair and a new approach was unfair and a new approach was created, strict liability approach was created, strict liability

Strict liability = based on the Strict liability = based on the commission of an commission of an actus reusactus reus and the and the inability to prove the defense of due inability to prove the defense of due diligence. diligence.

DUE DILIGENCE & DUE DILIGENCE & ENVIRONMENTAL ENVIRONMENTAL CONTAMINATIONCONTAMINATION Case study:Case study:

R v. MacMillan Bloedel R v. MacMillan Bloedel [2002][2002]

> Read and discuss> Read and discuss

* found on pages 251/252 * found on pages 251/252