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Criminal Law

What is a crime?
An act or omission (failure to) of act that is prohibited and punishable by federal statute.
Example of omission: not stopping at the scene of an accident you were involved in.
Conditions required (Law Reform Commission of Canada):
Act is considered wrong by society
The act causes harm to society in general or to those (such as minors) who need protection.
The harm must be serious
The remedy must be handled by the criminal justice system.

Introduction
Criminal law are laws that prohibit and punish acts that injure individual people, property, and
communities.
Ignorance of the law is not an excuse for committing a crime (s.19 of the Criminal Code)
Laws designed to:
protect people and property
maintain order
preserve standards of public decency

Criminal Code
Most criminal laws are in the Criminal Code. It is a federal statute which lists offences,
punishments, and procedures to follow when trying the accused.
Supposed to reflect social values of majority of Canadians (i.e. majority of Canadians think
murder and trafficking meth is bad why Harper introduced increased sentences for meth
traffickers)
Harper increased punishments for crimes causing serious persnoal injury, terrorism, and
organized crime.
Does not always reflect social values of majority.

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Revokation of citizenship for convicted terrorists is not a punishment anymore, even though
majority don't want terrorists to be Canadians.

Before Confederation, each Province had it's own criminal laws. All except Quebec, were based
on British law. Canadian courts relied on British statutes and precedents.

In the Constitution Act , 1867, PM J. A. Macdonald gave power to the federal government
for all criminal laws to remove confusion.

Criminal Code introduced in July 1892.

Quasi-Criminal Laws
Provinces cannot pass criminal laws, but they havve power to pass laws on issues within their
own jurisdictions. Some punishments are given, such as fines, or some jailtime.

Ex: selling under age liquor is not allowed, drinking and driving is not allowed

Elements of a Crime
Crown must prove Actus Reus (act) and Mens Rea (intent) to convict someone of a crime.

Actus Reus
The guilty act - demonstrates a voluntary action, commission, or state of being prohibited by law.
You committed an act which is made illegal in the Criminal Code. Acts detailed in criminal
code.

Ex: If you punch someone that is considered assault under the criminal code, but if only think
about punching someone then there is no actus reus.

Failing to do something can be considered a wrongful act (ommission)

Ex: not giving your child food is illegal (failing to provide a child with the necessities of
life)

States of being:

If you are in possession of stolen goods, or possession of break-in tools, or found in a


gaming house, those are states of being that are illegal.

Must be voluntary if you are forced to do something there is no actus reus.

If you are sleep walking, and you do something illegal there is no actus reus.

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If you hit someone due to seizures, there is no actus reus.

Mens Rea
The guilty mind - the accused person deliberately did something that they knew was wrong, and
recklessly disregarded the consequences.
Proven by showing: intent to commit an offense, and knowledge that they knew they were doing
something wrong.
Can also be established in some cases by knowledge, negligence, recklessness, or wilful blindness.

Intent
Someone meant to do something wrong, and was reckless regarding the consequences, and they
should have foreseen the results of the wrongful act. Refers to state of mind and willingness.

Divided into general and specific intent.

Motive does not need to be proven (the reason to commit a crime) killing someone to receive
an inheritance. Inheritance is motive. Not an element of a crime.

General Intent A person commits a wrongful act for it's own sake without an ulterior motive or
purpose.
Ex: punching someone in the face randomly because you're mad at life

To prove mens rea with general intent all you need to do is prove that the crime actually
happened.

General easier to prove.

Manslaughter (unplanned or unintended homicide) is a general intent offence

Specific Intent When you commit one wrongful act in order to accomplish another.
Committing an assault to commit a theft is robbery.

To prove robbery, crown has to show that the assault did happen and that the assault was for
the purpose of stealing something.

Harder to prove.

Murder (planned and deliberate homicide) is a specific intent offence.

Knowledge
Mens rea can be sometimes established by showing that the accused had knowledge of facts.

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Ex: using a forged document. What needs to be proven is that the accused knew that the
document was forged.

Criminal Negligence
Mens rea can sometimes be established by proving that the accused showed negligence. That
the accused failed to take precautions that any reasonable person would take to avoid causing
harm to another person.

Someone is negligent if:

in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or
reckless disregard for the lives or safety of other persons

Ex: Parent leaving loaded firearm in a place where their child can get it, and child shoots friend.
Parent is negligent.

Recklessness
Mens rea can also be established by proving that he accused was reckless Taking an
unjustifiable risk that a reasonable person would not take.

Someone who needs glasses driving without them and causing an accident.

Wilful blindness
Mens rea can be the result of wilful blindness deliberate closing of one's mind to possible
consequences of one's actions.

You buy something that's too much of a good deal that it isn't stolen and you see evidence
that it's stolen (school's logo). You ignore that and buy it. You could be charged with
possession of stolen property.

Exceptions for Mens Rea:


Less serious offences do not require the Crown to establish mens rea. These offences are usually
regulatory laws, which are meant to protect the public welfare (environmental protection,
workplace safety, hunting/fishing, traffic)

If the offence does not include the wording wilful or with intent then mens rea does not
have to be shown.

Strict Liability:
The accused may acknowledge that the offence took place but use the defence of due diligence.
- taking every reasonable precaution to avoid committing the offence in question.

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Environmental protection laws for example. If Acme Waste Disposal Company polluted a river,
but invested millions to prevent it with training and monitoring to avoid pollution, that can be a
defence. They can also prove that the offence was the result of torrential rains and that the
company couldn't do anything about it. The company had shown due diligence.

Absolute Liability: There is no defence possible after the crown proves that the offence took place and
the accused is responsible for it.
Ex: speeding or driving without a license.

Imprisonment is not allowed for absolute liability offences since the accused cannot offer a
defence (Supreme Court ruling). Usually given a fine.

Involvement in a Crime
Many crimes are usually committed by several people (ex: bank robberies require lots of
planning and a getaway driver, also gang violenece)

The Perpetrator
The person who directly commit the crime. Has to be identified at the scene of the crime.

When two or more are involved directly, they are co-perpetrators

Aiding
When people are not directly involved in a crime, but is partly responsible for it. Considered
parties to an offence.

Lisa gives a pharmacy store key to her boyfriend, Bob. Bob breaks in to steal Oxy. Lisa aided
Bob in breaking the law even though she wasn't present at the break-in.

Tobacco Companies:

In 2008, Imperial Tobacco and Rothmans (two largest tobacco manufacturers) had to pay
more than $1.1B in fines and penalties when they pleaded guilty to aiding persons to sell
and be in possession of tobacco manufactured in Canada that was not packed and was not
stamped in conformity with the Excise Act

They aided cigarette smugglers to sell cigarettes to save on taxes.

Abetting
Encouraging the perpetrator to commit a crime without actually providing physical assistance.

Someone tells someone to punch someone and they do. They will be charged with abetting

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an assault
Party must be aware that a criminal action was intended and must have committed some action
that assisted the perpetrator.

Being at the scene can be used as evidence if they had prior knowledge of the perpetrators
intention to commit the crime.

Counselling Advising, reccomending, or persuading another person to commit an offense.


Mary helps William Pickernell to steal from the store where Mary works and Mary advises
William on ways to steal.

Accessory After the Fact Knowing a person was involved in an offense and received, comforted, or
assisted that person in escaping from the police.
Ex: Someone lets someone stay in their house and hide from the police, and helps them out after
finding out they committed an offense.

Party to Common Intention Shared responsibility among criminals for any additional offences that
are committed in the course of the crime they originally intended.
Ex: six people hijak a van, and one of them kills the driver. All can be charged with murder.

Incomplete Crimes
Attempt When a person is unsuccessful in committing a crime they can be charged with criminal
attempt.
They had the intent to commit the crime but failed to carry it through for any reason.

Actus reas and mens rea can be established when you start committing the crime.

Crown has to show that the accused had the intent and took obvious steps towards committing
the crime.

Ex: Terrorists build a bomb to blow up Toronto.

Conspiracy An agreement between two or more people to carry out an illegal act, even if that act
does not actually occur.
Two people plan to murder someone and they hire a hit man who is an undercover police
officer. Both are arrested for conspiracy to commit murder but cannot be charged with murder
because they didn't kill anyone.

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Investigation
Levels of Policing
Federal Police RCMP
Founded in 1873 as the North West Mounted Police.

They provide investigative and protective services to the federal government and serve as the
provincial police in all provinces and territories except Ontario, Quebec, and
Newfoundland/Lab rador. They also serve as municipal police in some areas.

They are the only police force in the territories unless Aboriginal forces are established.

Mandate includes:

Border Integrity

Drugs and Organized Crime

International Policing

Financial Crime

Provincial Police
Have jurisdiction in rural areas and in unincorporated regions around cities.

Ontario Provincial Police, Surete du Quebec and Royal Newfoundland Constabulary. RCMP
operates elsewhere as provincal police.

OPP Mandate:

policing municipalities that are not required by law to maintain their own police force.

Responding to municipal police requests for special assistance in emergencies.

Providing traffic control on all 400-series and major highways, including those sections that
are witihn the jurisdiction of municipal police forces.

Performing other assigned duties on request, to the coroner's office and to other provincal
ministries,

prerforming other assigned duties, such as maintaining the provincal firearms registry,
providing security at Queen's Park, and protecting Ontario government officials and

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dignitaries.

Municipal Police
Have jurisdiction over policing in towns and cities throughout Canada. Municipalities fund their
own police forces. Smaller communities use the services of the provincial police or RCMP.

Divided into devices for local communities. Divisions further divided into squads or units
(homicide, gang crime, robbery, explosive disposal)

Municipal police officer's duties include:

preserving the peace

preventing crimes from occuring

assisting victims of crime

apprehending criminals

laying charges and participating in prosecutions

executing warrants

enforcing municipal bylaws

Aboriginal Police
Each First Nation can enter into agreement with the federal or provincial governments to establish
standalone forces or within existing ones.

Arriving at the Crime Scene


They must call an abulance and assist injured people in the area.

They must call in reinforcements to help eliminate any hazards that sill post a risk (fires or
unexploded bombs)

Must assume suspects are present and armed until the scene is searched thoroughly.

Preserving the Crime Scene


The prosecution's success demands on the condition of the physical evidence taken from the
scene. They need to setup two boundaries:

The centre where the offence was actually committed.

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The perimeter surrounding areas where the alleged offender may have been present or left
evidence.

This is done to:

allow for a thorough search of the scene

to seize and collect physical evidence

to ensure that physical evidence seized is admissible in court.

If evidence is not properly managed it can become contaminated loss, destroyed, or altered.

May not be admissible in court as it may lead police to draw inaccurate conclusions.

Police Investigators should keep a police log written record of what each officer has
witnessed at a crime scene or has learned from questioning witnesses or suspects.

They document daily activities to help them recall events when testifying at trial.

Roles of Officers
Patrol Officer has an area that they check regularly. Their job is to secure the crime scene and
prevent evidence from being lost/tampered with.
Scenes of Crime Officer Trained in evidence collection and preservation techniques. They take
photos, lift fingerprints and foot/tire impressions. Also collect blood and hair evidence. Tend to work
on less serious crimes.
Criminal Identification Officer Responsible for searching the crime scene, examining the scene for
physical evidence, gathering and analyzing evidence and sending certain types of evidence to a lab for
analysis (skin samples).
Criminal Investigations Bureau Officer plainclothes detective who are trained in a particular area
of crime. They supervise the investigation, interview victims and witnesses, interrogate suspects, draw
conclusions, and arrest suspects.

Identifying Evidence
Crown uses evidence present at crime scene to prove beyond a reasonable doubt.

Physical Evidence any object, impression, or body element that can be used to prove or
disprove facts relating to an offense

Forensic Science the use of biochemical and other scientific techniques to analyze evidence
in a criminal investigation

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Types of evidence:

Tools used in the commission of the crime (hammer, knives, screwdrivers, and crowbars).

Impressions patterns or marks found on surfaces caused by objects such as fingers,


gloves, shoes, tires, or tools.

Impression is recorded by photographing or scanning it, or by taking a mold.

Then police try to match impression with the object that made it.

Class characteristics general attributes of an object (tire size, company name, etc.)

Individual characteristics specific and unique attributes of an object

Types:

Fingerprints -a mark left behind after a fingertip touches an object. Fingerprints


never change and no two fingerprints are identical therefore they can be used for
identification.

Visible fingerprint can be observed by naked eye

Latent fingerprint made by the oils that naturally occur on skins surface.
Cannot be seen by naked eye. Print has to be developed/lifted before it is
photographed.

Gloves can also be used the same way as fingerprints

Shoe Prints and tire tracks can be matched to the suspects shoes or tires to place
suspect at scene of the crime. Give general idea of suspect's height and weight,
injuries, whether they were walking/running, and carrying, pushing, or dragging
anything.

Body Elements /DNA

Crimes often result in the transfer of bodily fluids or other bodily elements from the
suspect to the victim.

DNA testing used to identify suspects

Labelling Evidence
Chain of custody the witnessed, written record of the people who maintained unbreoken control over
an item of evidence. Must show:
who had contact with the evidence

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the dates and times the evidence was handled

the circumstances under which the evidence was handled

what changes, if any were made to the evidence.

All evidence placed in evidence package containing:


description of item

police case number

date of collection

location of collection

brand name

serial number/ clothing information

name/budge # of the officer who collected the evidence

destination of the item for analysis or storage.

Arrest
Procedure for dealing with suspects detailed in the Criminal Code, developed through case law,
and enshrined in the Charter.

If the police do not conduct their investigation properly the evidence may be inadmissible to
court if obtained unproperly.

Questioning the Accused


Police required to ask suspects questions as they investigate a crime.

They cannot force a suspect to answer questions.

Charter Section 7 the right to remain silent.

R. v. Liew [1999] SCR the police must give the suspect a chance to make a free and
meaningful choice about whether to speak or remain silent.

The police are required to upon arrest:

inform the person of the reason and right to counsel.

After they are informed of their rights, anything they say can be used against them in court.

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Interrogation
Goal of police is to obtain the truth.

Begin by developing trust, using open-ended, non-threatening questions. Later ask close-ended
questions to obtain specific details.

Ask about;

the entire incident

the period before the offence took place

the details of the actual offence

the period following the offence

Arrest and Detention Procedure


Arrest legally depriving someone of liberty by seizing or touching the person to indicate that he or
she is in custody. They must
identify themselves as a police officer

advise the accused the they are under arrest

inform them of the charge and show the arrest warrant if available

touch the accused to indicate that they are in legal custody. Then inform them of their rights to
counsel.

Detention stopping and asking someone to answer questions, legally depriving them of liberty with
or without physical restraint. Suspect must be informed of right to counsel and reasons for the
detention.
Ex: they are at a crime scene and given a suspect description. They can detain someone who fits
the description to answer a few questions. If the suspect refuses to accompany the police or is
uncooperative they may be put under arrest and taken to the police station against their will.

Reasonable grounds required for arrest information that would lead a reasonable person to
conclude that the suspect had committed a criminal offence
Appearance Notices A legal document, for less serious offences, compelling a person to appear in
court. If they accused doesn't show up, police may ask judge for bench warrant (arrest warrant for
failure to appear

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Arrest with a warrant
when a person is suspected of committing a serious indictable offence the police may ask a judge to
issue a summons (legal document for indictable offence, ordering a person to appear in court
voluntarily, delivered by sheriff/deputy). Failing may lead to issuance of a bench warrant.

If police think someone will not voluntarily appear in court they can obtain an arrest warrant involves
providing information under oath to judge (an information). Once the police lay an information the
judge decides whether to issue an arrest warrant (written court order directing police to arrest a
suspect). Includes:
name of the accused

the offence the person is charged with

reason for the warrant

Arrest without a warrant


Section 495 allows police to arrest suspects without a warrant when:
they have reasonable grounds to suspect a person has either committed an indictable offence or
is about to commit one

They find a person in the act of committing a criminal offence

They find a person whom they believe is named on an arrest warrant.

All peace officers (a person responsible for preserving public peace, includes police, mayors, pilots,
customs officers) may issue an arrest without warrant under s.495.

Citizen's Arrest
Arrests done without a warrant by any person other than a peace officer. The suspect must immediately
be turned over to a peace officer. Citizen's arrests are rare.
Can be made when:
a person who he finds committing an indictable offense, or

a person who, on reasonable grounds, he believes,

has committed a criminal offence, and

is escaping from and freshly pursued by persons who have lawful authority to arrest that
person

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If an individual is committing a criminal offence on or in relation to property, the person may be
arrested without warrant by:

the owner or a person in lawful possesion of the property

or a person authorized by the owner or by a person in lawful possession of the property

Searches
Police may only conduct searches under limited circumstances to protect against reasonable search and
seizure (protected with s8 of the charter).

Searching a Person
No warrant is required if (according to R. v. Stillman [1997] SRC):
the arrest must be lawful

the search must be connected to the lawful arrested

the manner in which the search is carried out must be reasonable.

See R. v. Mann [2004] in cases


Except for a someone suspected of impaired driving an arrested person does not have to supply the
police with a breath, blood, or urine sample unless required under warrant.
With a warrant, arrested person can talk with a lawyer before providing the sample. Person maya be
forced to provide DNA evidence in designated offences like murder and aggravated sexual assault.

Searching a Place
The police must obtain a warrant before searching places such as a residence, an office, or
storage area.

R. v. Buhay, [2003] (pg 207) said search of a bus locker without a warrant was a violation of s8
of the charter.

Search warrant Court document giving police the right to search a specific location. The warrant
must be properly filled out or the evidence may be inadmissible.
They deliver sworn information to a judge, which specifies:

the crime,

the items police are looking for,

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reasonable grounds for believing those items will be found in a specific location.

The warrant specifies the dates/times police must conduct searches. For residences, usually
between 6am and 9pm.

Police must identify themselves and show the warrant to the person living or working in the
place to be searched. During the course of the search the police may confiscate unrelated items
as long as they are in plain view. Objects taken for evidence kept in police custody until other
the trial. Other items must be returned within 3 months.

Telewarrant - a search warrant obtained over the phone or by fax if the police believe the must act
quickly to preserve evidence. Officer gives all the information over the phone which judge records and
files it with the court. The judge then faxes over a warrant for the officer to show.
To search a private home, search warrants are always required except in emergencies of:
police have reasonable grounds to believe that entering the dwelling is necessary to
prevent

imminent injury/death to any person

the destruction of evidence related to an indictable offence.

Police have authority to search for drugs anywhere except a private home without obtaining a
warrant (Controlled Drugs and Substances Act). Anyone found within the premises can also be
searched without a warrant if the police believe they are carrying illegal drugs.
Provincial Liquor Laws allow police to search motor vehicles for illegal alcohol without a
warrant. Search warrant still required to search a private home.

After Arrest
After a person is arrested procedures may include:

fingerprinting

taking photos only for someone arrested of an indictable offence

lineup - asking victim/witness to identify the suspect after viewing a number of people with
similar characteristics

People in a photo lineup are of similar age, race, hair length, and other physical
characteristics. People cannot be forced to stand in a lineup but it may work in a
suspect's favour sometimes.

If person is not charged, or if acquitted in court, the police still keep an arrest record for 10

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years (which includes fingerprints/photos)

Pretrial Relase
After the person has been arrested, photographed, and fingerprinted the police may release the
accused until the trial. Release considered for: summary or indictable offences that carry finds
less than $5000.

If the police believe that the accused will appear voluntarily, they will sign a promise to
appear. If they don't appear a bench warrant will be issued for their arrest.

Recognizance A guarantee to appear in court when required a fine up to $500 may be levied
if they fail to appear (deposit not usually required unless the accused lives 200km+ away or in
another province) Surety is sometimes required a person who will pay a sum of money if the
accused fails to appear at trial.

Bail
Police keep suspect accused of a serious indictable offence in custody after arrest. They can
apply for bail though the temporary release of a prisoner who posts a sum of money or other
security to guarantee his or her appearance in court.

Bail hearing must be held within 24 hours of arrest if posssible.

No one is to be denied bail without cause.

Slow-cause hearing - done by the crown to convince the judge that the prisoner should stay in
jail since they might escape, a risk to public safety, or other just causes. If successful, detention
order will be issued.

Reverse-onus required on certain offences, where the defence must show that bail should be
granted (they'll attend court, not commit more crimes, and not interfere with the administration
of justice), otherwise bail will be denied, if:

the charge is murder,

the accused is charged with committing an indictable offence while already out on bail,

the offence is indictable and the accused is not a Canadian resident

the charge involves failure to appear or breach of a bail condition

the accused is charged with importing, trafficking, or possession for the purpose of
trafficking narcotics (or conspiracy to commit any of these)

Gun crimes such as (as of May 1, 2008 under PM Harpers' Tackling Violent Crime Act):

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using a firearm to commit serious offences (attempted murder, discharging a firearm
with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping,
hostage-taking, robbery, or extortion)

an indictable firearms-realted offence where the accused is under a firearms prohibition


order

firearms trafficking, possession for the purpose of weapons trafficking, or firearms


smuggling

whether the firearm was used in the commission of the offence,

whether the accused faces a mandatory minimum punishment of imprisonment of three


years or more for a firearms offence.

Habeas Corpus
If an accused person who has been denied bail beleives that he or she is illegally detained that
person can file a write of habeas corpus to appeal the bail refusal to a higher court.

Requires the crown to produce the detainde person in court and give reasons to justify keeping
them in custody until trial. Also requires crown to show that the prisoner is not being
mistreated. If the crown cannot justify the continued detention to the higher court's satisfaction
the court may order the prisoner released.

It is no enshrined in the charter.

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Criminal Offences
Types

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Hybrid Offences
Some offences can be tried as either a summary conviction offence or an indictable offence.

The criminal code states clearly if it's a hybrid offence.

Hybrid offences are treated as indictable until the Crown formally chooses based on
circumstances of the case (no prior record versus career criminal)

Ex: public mischief, theft under $5000, sexual assault

Offences Against The Person


Homicide
Killing someone directly or indirectly by any means.

Culpable homicide - the killing for which the accused can be held legally responsible.

Someone's intentionally causes the death of another person or shows recklessness that was
likely to cause deather.

Murder the intentional killing of another human being. Split into 1 st and second degree

First-degree:

is planned and deliberate

or one person hires another to commit murder

or the victim is a police officer, a prison employee, or another person employed for
the preservation and maintenance of the public peace.

Or the murder is caused while committing or attempting to commit another serious


offence (hijacking, sexual assault, hostage taking, kidnapping, etc.)

Prisoner cannot apply for parole for 25 years

Second degree:

murder that does not fit into one of the four above catagories for first-degree murder.

Prisoner can apply for parole earlier (10-15 years)

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Infanticide - When a mother kills her newborn child.

The accused must be the natural mother of the victim

the victim must be less than 12 months old, and

at the time of the killing, the accused must have been suffering from a mental
disturbance caused by not being able to recover from giving birth to the victim.

Max punishment is 5 years in prison (otherwise 2nd degree murder is life)

Juries were relectutant to convict mothers of murder, added in 1948.

Mother can plead for infanticide if she had post-partum depression (depression after
childbirth)

Manslaughter any culpable murder that is not murder of infanticide.

Actus reus of manslaughter is killing someone through an unlawful act even if the
killing was not intentional.

Ex: killing someone in a brawl perp intended to hurt the victim but not kill, but the
victim dies anyways as a direct result.

Mens rea: any reasonable person could have foreseen that the act would pose a risk of
bodily farm that was not temporary or temporary.

Criminal negligence causing death can be tried as manslaughter.

Parents dont give their child insulin and use faith healing and the child dies.

Murder charge can be reduced to manslaughter if the victim can show provocation

the victim did something insulting or outrageous that causes the accused to loose
self-control. Someone spitting on someone's face in a kitchen and then that person
gets stabbed with a knife. Homicide must happen immediately after provocation
otherwise it will be murder as it was planned and deliberate

Assault
Most common violent crime (82% of reports)
Level of serverity:
Level 1: Hybrid offence with max 5 years imprisonment.

Intentionally applying force to another person, either directly or indirectly, without that
person's consent

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Attempting or threatening, by act or gesture to apply force.

Accosting or impending another person, or begging, while openly wearing or carrying a


weapon or an imitation of a weapon

Level 2, assault with a weapon or causing bodily harm

The injury has serious consequences for the victim's health or comfort. May involve
carrying, using, or threatening to use a weapon. Hybrid offence with a max 10 years
imprisonment.

Level 3, aggravated assault

wounding, maiming, disfiguring, or endangering the life of the victim. Indictable offence
with a max 14 years in prisoner

Sexual Assault
Before 1983, it was divided into rape and indecent assault. In 1983, 3 categories were
introduced. Sexual assault involves physical violence against another person. Spouses can be
charged and victims can be male or female

Level 1, sexual assault victim suffers the least physical injury. An assault that violated the
victim's sexual integrity. 97% of reported assaults. It is a hybrid offence with a max 10 years

Level 2, sexual assault with a weapon, threats to a third party, or causing bodily harm

involves sexual assault in combination with threats or the use of weapons, or that results
in bodily harm. Max sentence of 14 years imprisonment.

Level 3, aggravted sexual assault wounding, maiming, disfiguring, or endangering the


life of the victim.

Max sentence of life imprisonment

Consent is a valid defence if the accused had an honest and reasonable, even if
mistaken, belief that the victim was consenting to sexual contact. Cannot be used
when:

victim says no (words or conduct)

when the accused is intoxicated and cannot determine whether consent was given

when the accused person was reckless or deliberately blind to the victim's responses.

No such thing as implied consent (if they say no at all it's not consent even if they
imply consent with conduct) R. v. Ewanchuk [1999]

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Suicide not a crime since 1972

Motor Vehicle Offences


Dangerous Operation of a Motor Vehicle
Crown must prove safety and lives endangered because the driver failed to exercise care that a
reasonable driver would have had in the same conditions.

Failure to Stop at the Scene of an Accident.


hit and run - If you are involved in a motor vehicle accident and you don't stop to offer
assistance and give name/address you are presumed to show intent to escape civil or criminal
liability.

Hybrid offence, max 5 years. If caused bodily harm, max sentence is 10 years. If caused death,
max sentence is life.

Impaired Driving
Driver was under the influence of drugs or alcohol and that impaired their driving ability.

Police have reasonable and probable grounds to believe that an impaired person is or has been
operating a motor vehicle within the last 3 hours they can demand a breathalyzer test. If they
can't take that test they can give a blood sample instead by a qualified medical practitioner.

Hybrid offences. Increase with subsequent offences. Causing bodily harm, max sentence is 10
years. If driver kills someone, max penalty is life.

Offences Against Property


Theft
Taking property, permanently or temporarily, without the owner's permission.

Ex: borrowing a car for 2 hours but not returning it for 3 days.

Colour of right honest belief that a person owns or has permission to use the article in
question.

Ex: keep the car as long as you like

Sentencing depends on:

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Theft under $5000 hybrid offence with max 2 years.

Theft over $5000, indictable offence with max 10 years.

Robbery
Theft involving violence or threat of violence.

Breaking and Entering


Breaking into a house or opening something in order to enter the premises without permission
from the owner to commit an indictable offence (ex: robbery)

If you just break into someone's house (like to escape a storm) but don't intend to commit
crimes it is not breaking and enter.

Max punishment, 10 years in prison for commercial buildings, life for residences.

Other Crimes
Mischief -
Wilfully destroying or damaging property or data, interfering with the lawful use of property or
data, or interfering with any person in the lawful use of property or data.

Ex: Vandalism

Hybrid offences. If you endanger someones life the max is life in prison.

Public mischief providing false information that causes the police to start or continue an
investigation without cause.

Fraud
Lying in order to cause a loss of property, money, or service. Lying for gain.

Penalties determined by value of fraud:

under $5000, summary offence, fine or max two years.

Over $5000, indictable offence with max 10 years.

Prostitution
Being a prostitute is legal, but buying is not and being a pimp is not. (recent)

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Gambling
Gambling is illegal if for the purpose of making profit, unless you have government approval.

Drug Offences
Controlled Drugs and Substances Act passed on May 14, 1997 replacing the Narcotic Control Act and
parts of the Food and Drug Act. Lists to narcotics and other drugs as controlled substances, which are
listed in 5 schedules (I,II,III,IV,V). Schedule 1 drugs have the most penalty (opiates and cocaine),
schedule 2 drugs are cannabis, schedule 3 include amphetamines (including meth and ecstasy), lsd.

Possession
The state of having knowledge of and control over something.
The person in possession must know what the item is and have some measure of control over it.

Ex: you give heroin to your enemy telling them it's foot powder

A person may be found in possession even if he or she gave the item in question to another
person.

Joe put coke in Wayne's bag. Joe would be charged with possession

A person cannot be charged with possession even if the person does not own the controlled
substance or have it in his or her possession, as long as the person knows about it and consents
to it's possession by someone else.

Two people go to a party, and one buy ectsasy. The other person did not object so tehey'd be
charged with possession on the basis of consent (express consent implied consent, did
nothing to remove themselves from situation

Hybrid Offence based on drug and history of related offences.

Trafficking
Selling, giving, transporting, or distributing a controlled substances or an authorization
(prescription) for a controlled substance.
Possession for the purpose of trafficking must prove beyond a reasonbale doubt that the
accused possessed the controlled substance with the intention of trafficking.
Quantity of drugs was much greater than what is required for personal use.
Other evidence such as scales, bags, list of names, or cash.

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To convict someone of trafficking, only the intent to make an offer has to be proven (R. v.
Campbell, (1999) OntCa)
Schedule 1 or 2 are indictable offences with max life.
Schedule 3 and 4 are hybrid offences.

Money Laundering
Practice of transferring cash or other property to conceal illegal origin.
Criminals launder money to make it look legitimate, they layer and integrate through false
loans and blend the money with legitimate money (like a car wash)
Crown must prove:
actus reus any use, transfer, or possession of, sending or delivering, transporting,
transmitting, altering, disposing of, or otherwise dealing with any proceeds of crime
mens rea the intention to conceal or convert the illegally obtained money or property and
the knowledge that all or part of the money or property was illegally obtained
subject matter of the offence - the existence of the money or property obtained by
committing a criminal offence, participating in a conspiracy, or an attempt to commit an
offence, counselling or being an accessory after the fact or committing any act or omission
realted to the offence.
Hybrid offence. Max penalty is 10 years if indictable. If summary, $2000 fine and six months in
prison.
It is legal for police to money launder under s9.(3) of the Controlled substances Act and police
can seize anything obtained by committing a criminal offence if they believe on reasonable
grounds (s11.8).

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Criminal Court System

An accused person is innocent until proven guilty, and guilt must be proven beyond a
reasonable doubt.
Judges and jurors cannot convict an accused person unless the Crown has proven that the
accused did commit the crime. If there is any question of guilty, the accused must be
acquitted.

Provincial Courts
The bottom of the hierarchy of Canadian courts.
Divided into:

Criminal Court

Youth Justice Court

Family Court

Small Claims Court.


Provincial court judges can hear summary conviction offences and less serious indictable
offences.

Conducts all preliminary hearings a judicial enquiry to determine whether there is sufficient
evidence to put the accused person on trial.

Serves as a screening process to protect the accused from an unnecessary trial

Appeals from the provincial court regarding a summary conviction offence are heard by a single

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judge of the superior court. Appeals regarding an indictable offence are heard by a panel of 3 or
5 judges from the superior court.

Superior Court
The highest level of provincial criminal and civil court system.

Consists of trial division and appeal division. Has jurisdiction over both civil and criminal
matters.

Has authority to hear all types of offences, including those under s469 of the criminal code
(murder, treason) which must be tried by a judge and a jury, unless the accused person and the
provincial Attorney General agree to a judge-only trial.

For indictable offences under s554 of the Code, the accused can choose to have a jury or judge-
only trial.

Federal Court System


Consists of the Federal Court of Canada and the Supreme Court of Canada (the highest court of appeal)

Federal Court of Canada


Has a trial and appeal division.
Trail hears civil claims involving the federal government, also hears appeals from federally
appointed boards, commissions, and tribunals.

Supreme Court
Highest court of appeal.
Consists of 9 Justices:
a Chief and 8 Judges
3 come from Quebec by law. 3 come from Ontario, two from Western Canada, and 1 from
Atlantic Canada by tradition.
Hears appeals from different provincial court of appeals and by the Federal Court of Appeal.
Usually only grants leave when it's a matter of national significance or when decisions conflict
in the provincial appeals courts (permission to appeal ti higher court)
Federal Government can ask Supreme Court questions like if Quebec could succeed from
Canada.

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Participants
The Judge
Makes decisions on the admissibility of evidence, controls events in a courtroom, interprets the
law pertaining to the case.
In a jury trial, the Judge is the trier of law and the jury is the trier of fact. The judge
instructs the jury on points of law, the jury decides the verdict based on the Judge's instructions
and on the evidence or facts presented. The judge performs sentencing.
A Justice of the Peace - is a court official who has less authority than a judge. Can perform
judicial functions, especially in preliminary stages. Can issue arrest/search warrants and hear
bail applications and can hear cases regarding bylaws and certain provincial statutes

The Defence
The person charged with the crime is called the accused or defendant.
Defendants can represent themselves but usually hire trained legal assistance.
Duty counsel a layer on duty in a courtroom or police station to give free legal advice to
persons just arrested or brought before the court.
Advices clients on right to plead guilty/not guilty and help them apply for bail or
adjournment (postponing)
Can represent clients when pleading guilty or appear at sentencing hearing
Defence Counsel - the lawyer who represents the interests of the accused.
If plead not guilty- - will try to show that there exists a reasonable doubt as to the
defendant's guilt.
If plead guilty will recommend an appropriate sentence to the judge. Crown will also
make recommendation. Sometimes they both agree and present a joint submission.

The Prosecution
Crown counsel is the lawyer representing the interests of the government in investigating and
punishing criminal offences to ensure society's safety. They must prepare the government's case
by researching the law, assembling evidence, reviewing exhibits, and taking statements fro
witnesses.

Role isn't to obtain a conviction but to bring forward credible evidence of a crime.

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Evidence -information that tends to prove or disprove the elements of an offence.

Testimony of the arresting officer and other witnesses. Physical evidence (fingerprints,
weapon, clothing)

Court Clerk
Assists the Judge by keeping a record of the trial exhibits, administering oaths, and announcing the
beginning and end of the court session.

Court Reporter
Records everything verbatim of everything said during the trial. Produces a transcript of the trial if one
is requested.

Court Security Officers


Maintain courtroom security.
Sheriff - summons, pays, secludes and guards jurors as requested.
Bailiff assists the sheriff.

Witnesses
Give evidence concerning knowledge of circumstances regarding a crime.

Defence or prosecution may issue a subpoena (a court order requiring the witness to appear in
court on a certain date).

If they don't show up they are in contempt of court, and fined/jailed for up to 90 days.

Witnesses called to testify must take oath. If they knowingly make false accusations in court the
commit perjury, an indictable offence with up to 14 years in prison.

The Jury
12 men and women chosen by the crown and defence counsel from a pool of ordinary citizens.

The jurors listen to arguments, examine evidence, and follow Judge's instructions. They decide
at the end of the trial whether the accused is guilty beyond a reasonable doubt or not guilty.
Decision must be unanimous.

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Qualifications
Each province has its own qualifications. Usually,
must be Canadian citizen, 18+ and resident of province for at least one year
Politicians, people working in the justice system (lawyers, prison guards) may not serve as
jurors.
Exemptions for health or religious reasons, those who'd suffer serious financial hardship,
and those who have served within the past two years.

Jury Selection
Potential jurors randomly selected from electoral polling lists.
Represent wide cross-section of citizens in the community.
Group of potential jurors is called the jury panel. The accused is brought in front of the Judge
and jury panel for arraignment to enter a plea of guilty or not guilty.
If guilty, jury is not required.
If not guilty, the crown and defence counsel will select jurors from the jury panel under the
Judge's supervision.
1. The names of the people on the jury panel are written on cards that are put into a box
and selected at random. Selected names are read aloud to the court.
2. The person whose name has been chosen goes to the front of the court and faces the
accused.
3. Either the Crown or the defence may object to a potential juror by challenging the
individual
4. May make a challenge for cause if they believe that the prospective juror has a.)
already formed an opinion on the case. b) is physically unable to perform the duties of a
juror; or c) has been convicted of a serious offence. Each side may make an unlimited
numbers of challenges for cause.
5. After a potential juror is accepted as suitable and impartial, the Crown and defence still
have the chance to reject this person through the use of peremptory challenge one
that requires no reason for eliminating a potential juror from jury duty. Created to grant
accused control against the powers of the state. In serious cases, such as first-degree
murder or treason, each side may use 20 of these challenges. In less serious cases in
which the accused may be sentenced to more than 5 years in prison, 12 peremptory
challenges are permitted. Where sentence is less than 5 years, 4 challenge are permitted.

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6. When the selection process is complete, the 12 jurors take the jurors oath.

Criminal Trial Process


Burden of proof: the Crown's ability to prove the guilt of the accused beyond a reasonable doubt.

Crown's Opening Statements.


Burden of proof on crown, so they go first.
Identifies offence committed.
Summarizes the evidence against the accused.
Outlines how the crown will present it's case.

Examination of Witnesses
Direct examination the crown will ask each witness to tell what he or she observed about the
crime.
Cross-examination the defence counsel cross-examines the witness to test the accuracy of
the evidence or demonstrate that there are contradictions in the witness's testimony that weaken
the crown's case.

Defence Responds
After the Crown has called its witnesses, the defence, may bring a motion of dismissal if
counsel believes that the Crown has failed to prove guilt beyond a reasonable doubt. If Judge
agrees with defence, the case will be withdrawn and a directed verdict (decision of the judge) of
not guilty will be entered.

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Cases
Should the legal system restrict the rights of parents to
teach their children what they think is right?
Best interests of the child should be protected
7 year old came to school with white supremacist slogans on her body. Teacher washed them off
but she came back with them redrawn the next day.
Police called, and Child Welfare workers took the girl and her brother into custody.
Both parents were members of white supremacist organizations.
Child and Family services applied for permanent guardianship based on concerns that the
parents' conduct might endanger the emotional well-being of the children... and that the children
may be at risk of harm due to the parents' behaviour and associations.
Manitoba Family services guidelines said they could investigate concerns of safety of the child
for religious or political practices, if those practices could be harmful to the child
UN Convention on rights of the child: children should be protected from discrimination.
Monitoring status of children is included in the Divorce Act and Youth Criminal Justice Act.

R. v. Roach (2004), Ont C.A.


Ronald Roach met Marke Dube who was engaged in a fraudulent telemarketing scheme.
Victims had entered a contest and Dube phoned the winners saying they won a prize but they
needed taxes and shipping/handling fees to send it. They requested US$600-$9000. All they got
was cheap watches and stereos.
Dube encouraged Roach to distribute merchandise as prizes offered by his telemarketing
company. He was a meat cutter and did not have experience in telemarketing fraud. Dube
helped him and he registered a business and created an agreement with Dube Enterprizes.
Responsibility of placement of orders for merchandise rested with the telemarketing company.
Roach was to provide and distribute merchandise according to instructions. Roach collected
mail and was paid to deposit it into a prize fund and split the profits.
Complaints were given to the police, and Dube was convicted of fraud.

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Roach charged with fraud over $5000 and conspiracy to commit fraud. He claimed that he
though the scheme was legal and that it would eventually be enough to cover the expensive
prizes.
Roach acted knowing, being reckless or wilfully blind to assisting Dube in fraud, but appeal
court said that recklessness did not satisfy mens rea as a party to an offense faces the same
penalties as the principal. Only could be held liable if he intended to commit further crime.

R. v. Canhoto (1999), Ont CA


Kira Canhoto was a two year old. Her grandmother believes she was possessed by evil spirits
from her mother (Maria) 's boyfriend. The grandmother performed an exorcism at a friend
house.
Involved forced ingestion of water until vomiting where the child expelled the spirits. The
held Kira's legs down until she fell asleep and died due to aspiration of water.
Maria Canhoto was present during part of the attempted exorcism. She as charged with
manslaughter on the basis of criminal neglicence.
She demonstrated disregard for her child's life.
She should have known that the child's life was at risk and was able to distinguish between
cries of discomfort and cries of a child fighting for her life.
She appealed saying that the court should distinguish between crimes of crimninal
neglicence arising out of acts and crimes of criminal neglicence based on a failure to act
where there is a duty to do so.
Criminal code denies distinction between acts and omissions. Appeal dismissed since
statute law override common law.

R. v. Decorte, [2005] SCR


Cecil Decorte was stopped by two First Nations Constables outside a reserve. Under the Ontario
Highway Traffic Act, police officers are allowed to randomly stop drivers to determine if they
have been drinking and driving (R.I.D.E. operations). Decorte did not comply and was detained
and convicted for failure to comply with the Breathalyzer demand. He appealed saying his he
was arbitrarily detained.
Supreme Court says peace officers (Charter 2c) are able to detain people which the constable
were and that Decorte was not arbitrarily detained.

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R. v. Mann, [2004] SCR
Two police officers investigating a break and enter noticed Philip Mann who matched the
description of the suspect. He complied with a pat-down search to look for weapons. No
weapons found but soft object felt in pocket (marijuana) and small plastic bags
He was arrested for possession of marijuana for the purpose of trafficking.
Trial judge found that the search of his pockets violated s.8 of the charter for unreasonable
search. The evidence was excluded under section s24(2) of the charter to prevent against an
unfair trial.
Appeal court ruled that the search was legal. Appealed to Supreme Court:
police were justified in detaining Mann for investigative purposes and conducting a pat-
down search to ensure safety.
Police had no reasonable basis to search pockets, violation of reasonable expectation of
privacy in respect to contents of pockets. Purpose shifted from safety to collection of
evidence without reasonable grounds and the evidence should have been excluded under
s24(2) of the charter.

R. v. Buhay, [2003] SCR


Mr. Buhay had a locker in a bus station. A security guard smelled an odour and opened the
locker. He found a duffel bag with marijuana and put the bag back in the locker and called the
police. The police alleged they smelled marijuana and seized the bag without warrant.
When the accused came to bring retrieve his bag he was arrested for possession of marijuana for
the purpose of trafficking.
Trial judge said rights against unreasonable search were violated. Appeal convicted. Supreme
Court said it was an unreasonable search and that he had a reasonable expectation of privacy
when renting the locker. The bus station's policy was to enter a locker if it believed that there
was something dangerous, but marijuana was not a danger.

R. v. Panday (2007) O.R.


3 men charged with extortion related offences. They spent 32 months (first two) and 34 months
in strict bail (house arrest). The traial judge gave them the minimum sentence agreed upon by
the crown and the accused since they had no criminal record. Also gave them credit for their
strict bail.
Crown said no time should be given for strict bail since it's not a punishment or imprisonment.

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Ontario Court of Appeal said that Bail is not jail and it cannot be used to lessen a mandatory
minimum sentence.
Mandatory minimums remove discretion from judges.

R. v. Asante-Mensah (2001), Ont. CA


Citizens arrests can use force.

R. v. Patrick (2008), A.R.


Police suspected Russel Patrick of having an ecstasy lab in his home. They seizes his garbage
which were readily accessible since there were no lids and his backyard didn't have any fences
but they still reached over the property line.
They found items that indicated a drug lab in the home and got a search warrant. The officer
placed Patrick under arrest without showing him the arrest warrant. He was convicted but
appealed due to this.
Alberta Court of Appeal said that his s8 Charter rights were not violated because when he threw
his garbage away to get picked up he abandoned any personal interest in them.

R. v. Golden, (2001) S.C.C


Police officers setup an observation post across from a sandwhich shop. They say that Golden
accepted money in exchange for white powder (thought to be coke) and they arrested golden.
No narcotics were found when frisking Golden and he was strip searched and found a package
in his buttocks. The officer forced him to bend over a table, lowering his pants to remove the
package. He had 10 grams of crack worth $1000. He was convicted for possession for the
purpose of trafficking.
He was stripped searched in front of two other suspects, a shop employee, and five officers. He
appealed to the Supreme Court because the search was not conducted in a reasonable fashion.
He was acquitted. Strip searches should only be conducted in polices stations (except in
emergencies), and strip searches can only be conducted when:
the police have reason to believe the accused is concealing a weapon, drugs, or other
evidence,
the search is authorized by a senior officer,
The search is done by an officer of the same sex, and
searches of body cavities are done only by medical personnel.

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