Chapter No.

Criminal law: collection of rules that have been constructed to address issues of human behaviour

Constructed by Canada by parliament and applies equally to all citizens where they live in our nation.

Criminal code of Canada also sets forth penalties for transgressions or offences committed by persons. The word
code is employed since the acts that constitute a crime are specifically defined as are the penaliteis which may be
imposed as sanctions for violation of law.

There are two forms of law

Civil and case law which govern relations among persons institution and business.

Consensus perspective: which asserts that our ability to maintain law and order is results of a social contract that all
of our citizens are party to then criminal law viewed as instruement to redress damage to the state as well as
individuals.

Violation of crime cause decline in respect for human.

Specific deterrent to the individual and general deterrent to all citizens

Injured party (Canada) In 2002 Ramcharan written the premise is a simple one since crime is harmful to society it is
government responsibility to seek redress and to obtain justice.

When system falls or break down lawlessness may quickly ensue. In 2005 massive flooding New Orleans and
surrounded areas caused a breakdown in law and order over the period of few days resulting murders armed attacks
against police and sexual assault. Not sufficient to have criminal laws without enforcement they would be little use.

Criminal Law Consensus or Conflict

Macro theories: explain operation of society. The consensus perspective arose in conservative political thought and
criminological writing of 1950 in US

in world war II views that members of society shared similar ideas and beliefs

1960 number of social movements (different from mainstream)

- Hippie revolution of late 60s challenged ideas concerning organization of society

- Feminist movement
- Education
- Right for young people
- Right to express oneself
- Premarital sex
- Homogenous society

1950 conservative

Conflict perspective: 1960

- Criminological writer began question to view overall consensus in society

- How society should operate
 - Viewed as pluralities
- Different values ethics and idea

Austin Turk(1976) view society as composed of variety of competing interest groups

- Group vary in power

- Propelling society toward greater recognition of specific rights and injustice
- Organized by class lines, political interest, religious beliefs, ethnicity, sexual orientation, gender, socio
economic status, anti social values
- Argued that goups constantly competed for power economic clout and the right to make and enforce the
laws to promote repeal laws which affect the interest of their specific group

There was a limited consensus on manners in which disputes were to be resolved in society but their view was not
reflection of widespread common values and interests

State doesn’t have a neutral agent to resolve dispute

View the state and its agents as protecting interest of certain groups.

Osgoode Hall legal scholar Michael Mandel argued for example that judges are merely lawys for upper classes
Mandel 1985 in essence Mandel has questioned judges impartially in dispute resolution.

Crimes of powerful Reiman (2003) criminal justice system is predominatly structured to penalize lower socio
economic classes.

William Chambliss(1975) examining the nation vagrancy in eighteenth century England discovered laws were
created that gave distinct protection to business and landowners while penalizing homless and poor

2005 toronto banned sleeping in public

Provincial regulations have little impact on realm of environmental controls safety requirement for workers or
business transaction general.

Big money and deal of time invested in private and public transgressors

Forms of Laws: conduct of investigation laying charges and behaviour judges and courts

Statutory laws: created through legislation passed by parliament and in provinces regulatory and other maters
matters collectively laws from criminal code of Canada

Law of precedents or Case law: created through decisions of judges and courts forms a guide for future decision
making regarding for example type of evidence are permitted to be introduced into record and which are not

- Decision determine how other cases involve same charges will be handled by courts for decades

Ramcharan De Lint & fleming 2001 will consult case precedents when attempting to render a decision.

Purpose of precedents is to ensure fair and equal treatment of those accuse over time and all Canadian jurisdictions

Supreme court of Canada passes decision which are used as a guideline for types of arguments both defence and
prosecution lawyers will employ
Both sides will submit advance argument and submission case law set out the rules which courts defence and
prosecution must perate in order for a case to be properly decided

Civil law: distinct from criminal law since it represent a body of rules that are intended to govern interaction among
persons in society business institutions and various levels of government.

Refer to law which is intended to maintain civility in society.

Manner of resolving disputes which is formal ordered and consistent.

Warranties, business claims, disagreement between contractually bound individual and business would have very
little chance of resolved .

Ramcharan(2002) observes violation of civil laws are not crimes they are contract violations

- It requires an individual body or coporation bring a lawsuit to courts no police involvement

- O.J simpson and Robert Blake civil juries made a finding of guilt and assessed millions of dollars in
damages

LRCC(law reform commissions of based crimes) creation of federal parliament given task to reviewing our criminal
laws on an ongoing basis

In 2006 federal election for example there as a great deal of debate over penalties for crimes involving firearms
several political leads called for establishment of mandatory minimum.

Clear offences and penalties for behaviours in Canada sentences are fair(not excessive or overly punitive)

Summary conviction offences : minor crimes included in this category include causing a disturbance or possession
of less then 30 grams of marijuana for personal use.

- Penalities are less harsh

- First offence will result fine
- Second result into probation or short prison sentence.

Overcrowding in our prison system judges use community service order for summary offences.

- Because of young offenders

- These sentences are intended to be more productive learning tools for changing behaviours
- Than fine payments or other options

Indictable offences : serious offences and carry very harsh punishment

- First degree murder life imprisonment

- Robbery drug tracking, sexual assault, violence break and enter of a dweling house with intent to commit
an indicatable offence arson all are indictable crimes.
- Defendents comes before court and previous convictions and is convicted a lengthy prison sentence will
generally be in order.
- Fine and incarceration in prison
- Hybrid offences: referred as crown election offences or dual offences : may be pursued by crown as either
summary offences or by an indictment for possession of a narcotic or proceeds of a drug offence or
laundering the proceeds of a drug offence.
One specific crime contained within criminal code deserves special consideration. Treason : defined as under 46
section of code is the offence of engaging in activites whther employing force, violence, conspiracy, or
communication of military or scientific information intended to overthrow the government of Canada or province.

Includes act of ontaining information that is of importance to Canada defence for purposes of sharing it with another
party or government whose intent is to damage the government or people of Canada

Corpus Delicti: body of the crime.

Specific facts and features must exist in order for a crime to have been committed.

Crown prosecutor is required to prove the elements of the crime in order to secure a conviction against the accused

Actus reus: act that has been committed

Change over time

No legal probation against LSD, or marijuana

Until 1983 men could not be charged with sexual assault of their wives

Without an act no crime can be charged

Elements of Actus Rea

- First: Behaviour of perpetrating individual must be either voluntary act or omission

- Second: facts and circumstances surrounding the act. In sexual assault both physical and psychological
inflicted upon victim. Canadian courts ruled psychological harm to be recognized whether a crime has
committed and in arriving at appropriate sentencing.
- Third: is determing harms flowed from act final factor must be proved claim bodily harm no evidence such
as medical report, pictures, police notes or witness to injuries lawying at heart of conviction is need for
evidence to prove case

Kidnapping under section 279(1) of criminal code every person commits an offence who kidnaps person with
intention

- To cause person to be confined or imprisoned against person’s will

- To cause person to be unlawfully sent or transported out of Canada against person will
- Hold person for ransom or to service against person will

A teenager could run away from home to escape abusive parents (Fleming 1997)

Police circumstantial evidence to ascertain fould play has occurred

O.J simpson trial no witnesses to murder existed committed murder of Nicole brown and Ronald Goldman.

Elizabeth bain accused found gilty of crime second degree murder and sentenced for 25 years in 2000 freed on bail
pending a new trial new killer Paul bernardo as murderer of young women

Evidence may in some case be very compelling too great a reliance upon it in as in Bain case can lead to a wrongful
conviction
Mens era(latin word) guilty mind : guilty mind mental element of a crime. Intention of committing a crime to be
convicted of a crime.

Mens rea and actus rea must be seen as occurring together

Person are heard to threaten lives in heat of anger

One alibi for time of offence occurred needs to be corroborated by reliable witness otherwise a reasonable doubt
could arise for such detail

Two types of intention exist

- General or objection intention

- Specific intention

Presumption of innocence: every one in Canada is presumed innocent of crime that they are charged until proven
guilty

Right to remain silent:

Criminal defence: charged with criminal defence accused will offer form of defence to charge have been lodged
against him or her.

We social audience to crime make assumption how innocent should react to criminal charge.

Shout his innocence to rooftop he is overwhelmed by enormity of injustice being perpetrated against and remain
silent.

None are consistent with guilt or innocence as general publice believe

Difficult to appreciate how a person will react until one wrongly charged with offence

Provocation: common defence in homicide in which accused seeking acquittal or conviction on lesser charge of
manslaughter

Common defence where both participants have alcohol it is related to physical powers, appearance, origin of birth,
race, intelligence, or sexual orientation.

Reduce guilt of accused

Not completely relieve criminal responsibility.

Can be proved through witness of event or evidence given by accused

Effect of lessening to be served if find of guilt

Defence of provocation Raised by accused in murder case so it is limited defence

Intoxication: defence raised in hope that it will reduce the criminal responsibility of the accused.

section 33.1: defence to available to someone who self induces intoxification

33.2: specific on issue of criminal fault when a person departs markedly from standard of reasonable care generally
recognized in Canadian society and is therby criminaly at fault where person while in a state of self induced
intoxication renders person unaware of or incarable of consciously controlling their behaviour voluntarily and in
voluntarily interferes to threatens to interefere with bodily integrity of another person that person is accountable for
his or hier actions under the law

1994 brought issues of defence intoxication to forefront of debate fallibility of law resulted in writing section 33 of
the code

Notable case 1994 R.V Daviault 400mg and 600mg per 100ml of blood

Smith and Hogan (1992) classic law text that moral difficulties inherent defence of intoxication

Mistake: defence of mistake in Canada is limited strictly to termed mistake of fact

No defence of ignorance permitted under Canadian law.

Reasonable person: incumbent on defence lawyer to prove that the mistake is an honest one and that
mistake would have been made by reasonable person.

Proof of mistake of fact is borne by defendent, reflecting perhaps attempts of accused parties to raise it in
cases of sexual assault where they have argued that victim gave consent.

Ramcharan(2002) noted court have recognized in recent years that proliferation of regulatory legislative
acts has made it virtually impossible for the citizen to be aware of existence of all laws.

Supreme court has a fairly recent decision, pointing complexity of laws and overlapping regulation created
by federal and provicinal government brought society at unreasonable expectation that citizen will have a
comprehensive knowledge of existence of given law or its application to their actions

Self defence: police and prison officers may invoke this defence if charged with an offence

Dures: closely related to self defence, if you are compelled to commit a crime against your will you cannot be held
criminally responsible.

- Not allowed for many serious criminal code offences including murder, sexual assault or kidnapping
Ramcharan(2002) notes that gang members is inciting the compulsion while defence may be successfull
where immediate death or grievous bodily harm would result from threats made against the accused

Mental disorder(mental disorder) refered as insanity most misunderstood by public.

It is often argued that guilty parties feign mental illness in order to escape responsibility for their actions

- Daniel Mcnaughtan (1843)

McNaughtan rules: became standard by which insanity is judged in our laws

- States that in order for a person to be found not guilty by reason of insanity they must not know the nature
and quality of the act they have committed (Fleming 1993)
 At the time of the crime

O.J simpson trial will be cognizant that each sides invled often refers to their own effert as search for truth

Unfit to stand trail : under Canadian law and referred for psychiatric treatment.

- Whether a mental illness exists in an accused

- Nature of illness

Fleming 1998 it is more consistent to think of them as individual who understand that something is wrong but
choose to do it anyway for a variety of questionable reasons.

Necessity implies that you have committed crime in order to achieve a greater good

Automatism: most fascinating of all defences that of automatism simply stated person who commit crimes when
they are acting as an automation are not guilty of an offence punishable law.

Ken Parks may 23rd 1987 chronicled by June Callwood in her book Sleepwalker 1990

Serve stress in life of individual sleeplessness, martial turmoil, loss of employment and shame were all present in
parks life

Consent: final defence available to accused person under Canadian law.

- An issue that is predominantly associated with sexual assault cases

- Issues is whether complaint consented willingly to behaviour in question
- Difficult on one hand because there are typically only two witness to such an event
- Juries generally predisposed to believe that a complaint is in the position to indicate whether he or she gave
consent to the act or not

Person cannot give voluntary consent to an act if they are

- Unconscious
- Under influence of alcohol to such an extent that it impairs their cognitive ability.

Cannot give voluntary consent

- Held by gun
- Individual refuses sexual intimacy saying No

Ron Hinch found police in a study conducted in Nova Scotia routinely listed as unfounded those sexual assault cases
in which victim was prostitute, had a mental history of mental illness, drug abuse or alcoholism or had a criminal
record related sexual offences

Police assuming a great deal of discretionary power in screening victims whom they felt would not provide credible
testimony at court.
Canadian charter of rights and freedom

1982: allow judiciary the right to define unconstitutional legislation that contravenes the protected rights of citizens

Prior charter of right Canada was governed by doctrine of parliamentary supremacy

Overarching document with courts entitled to test all laws against the values it enshrines

Many pieces of legislation and some sections of criminal code contravene charter rights of individual or groups and
thus have invalidated these particular legislative acts

- Guaranteeing fundamental freedoms

- Legal rights
- Equality rights
- Enforcement
- Voting right
- Mobility rights
- Language rights
- Aboriginal rights
- http://laws.justice.gc.ca
- infringed upon obtain remedies and redress from the courts