CRIMINAL LAWCRIMINAL LAW

http://www.lawyers.ca/statutes/criminal_code_of_canada_assault.htm

What is a crime?What is a crime?

Dictionary.com/crime

•Whatever Parliament defines Whatever Parliament defines as a crime.as a crime.

•Any action, or omission of an Any action, or omission of an action that is prohibited by lawaction that is prohibited by law

•Ex. Action - stealing somethingEx. Action - stealing something•Ex. Omission – not taking care of a baby.Ex. Omission – not taking care of a baby.

Technical definition:

Common definition:Common definition:

a wrongful act that must be a wrongful act that must be controlled for the protection of controlled for the protection of

society as a whole.society as a whole.

Criminal Offences Prosecuted by the Crown (on behalf of society)

All the same:Crown prosecutorCrown attorneyCrown Counsel

Prosecute:Prosecute:

pros·e·cute   /ˈprɒsɪˌkyut/ Show Spelled pros·e·cute   /ˈprɒsɪˌkyut/ Show Spelled verb, -cut·ed, -cut·ing. verb, -cut·ed, -cut·ing.

––verb (used with object) verb (used with object)

1. Law . 1. Law .

a. to institute legal proceedings against (a person). a. to institute legal proceedings against (a person).

b. to seek to enforce or obtain by legal process. b. to seek to enforce or obtain by legal process.

c. to conduct criminal proceedings in court against. c. to conduct criminal proceedings in court against. 2. to follow up or carry forward something undertaken or begun, usually to 2. to follow up or carry forward something undertaken or begun, usually to

its completion: to prosecute a war. its completion: to prosecute a war.

3. to carry on or practice.3. to carry on or practice.

3 main areas of Criminal law 3 main areas of Criminal law ‘coverage’‘coverage’

Protection of Protection of PeoplePeople

Protection of Protection of PropertyProperty

Protection of Protection of MoralityMorality

Changes to the Law Changes to the Law (Chapter 1)(Chapter 1)

Acts that were once considered criminal:Acts that were once considered criminal:

Sodomy (gay sex) Sodomy (gay sex) AbortionAbortion SuicideSuicide Prostitution?Prostitution?

PunishmentPunishment

Should the punishment = the harm caused? Should the punishment = the harm caused? (An eye for an eye?)(An eye for an eye?)

Proportionate response (like in Oakes test)Proportionate response (like in Oakes test)

What is unacceptable punishment?What is unacceptable punishment? What is Capital punishment? What is Capital punishment? What is Corporal Punishment?What is Corporal Punishment?

The Criminal CodeThe Criminal Code

Defines offences Defines offences

Sets out minimum & maximum penaltiesSets out minimum & maximum penalties

Is somewhat open to interpretationIs somewhat open to interpretation

Case law is criticalCase law is critical

Testifying in CourtTestifying in Court A person who has information that either party in the case A person who has information that either party in the case

believes to be useful may be called to give evidence in a civil or believes to be useful may be called to give evidence in a civil or criminal trial. For example, someone might have witnessed the criminal trial. For example, someone might have witnessed the event, know something that is important to the case, or have a event, know something that is important to the case, or have a document key to the trial. People whose knowledge about a document key to the trial. People whose knowledge about a particular subject can help the court with answers to technical particular subject can help the court with answers to technical questions may also be called as an expert witness. Usually, questions may also be called as an expert witness. Usually, though, people come forward voluntarily when they have though, people come forward voluntarily when they have information they believe is related to the case. If they do not, information they believe is related to the case. If they do not, they can be summoned by “subpoena” to give evidence in court. they can be summoned by “subpoena” to give evidence in court. A person subpoenaed must testify or face a penalty.A person subpoenaed must testify or face a penalty.

Witnesses’ testimony is taken under oath or by affirmation that Witnesses’ testimony is taken under oath or by affirmation that they will tell the truth. Witnesses are required to answer all they will tell the truth. Witnesses are required to answer all questions they are asked, unless the judge decides that a questions they are asked, unless the judge decides that a question is irrelevant or not necessary to the case.question is irrelevant or not necessary to the case.

Sitting on a jury or testifying in court gives citizens an Sitting on a jury or testifying in court gives citizens an opportunity to make sure Canada’s justice system is working as it opportunity to make sure Canada’s justice system is working as it should.should.

Subpoenas in CanadaSubpoenas in Canada A Canadian subpoena is a judicial order requiring a person to appear in A Canadian subpoena is a judicial order requiring a person to appear in

court at a certain place and time in order to give evidence in a court court at a certain place and time in order to give evidence in a court proceeding. The person receiving the subpoena may have to take the proceeding. The person receiving the subpoena may have to take the stand and testify personally, or may be required to produce documents stand and testify personally, or may be required to produce documents related to the court proceeding that are in his or her possession.related to the court proceeding that are in his or her possession.

Judges, justices of the peace or in some circumstances, Canadian court Judges, justices of the peace or in some circumstances, Canadian court clerks may issue subpoenas. Judges or justices of the peace must believe clerks may issue subpoenas. Judges or justices of the peace must believe that the person receiving the subpoena can provide the court with that the person receiving the subpoena can provide the court with 'material evidence'. This means that the evidence is required in order to 'material evidence'. This means that the evidence is required in order to make a determination in a court proceeding, or relates directly to the make a determination in a court proceeding, or relates directly to the issues in dispute.issues in dispute.

The witness usually receives the subpoena personally from a court The witness usually receives the subpoena personally from a court officer. But it can also be left at the witness's home with anyone officer. But it can also be left at the witness's home with anyone appearing to be at least sixteen years old. If the witness does not attend appearing to be at least sixteen years old. If the witness does not attend at court as required by the subpoena, the court may issue a warrant for at court as required by the subpoena, the court may issue a warrant for his or her arrest.his or her arrest.

If a witness shows up in court but refuses to testify, the presiding judge If a witness shows up in court but refuses to testify, the presiding judge may order that the witness be jailed for contempt of court.may order that the witness be jailed for contempt of court.

Natalie FraserNatalie Fraser practised law in Whitby, Ontario for seventeen years and practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.is now a freelance legal writer. She often writes for The Lawyers Weekly.

What happens when harm is What happens when harm is committed, but not defined in committed, but not defined in

the Criminal code?the Criminal code?

Ex. Knowingly Ex. Knowingly transmitting transmitting HIVHIV

case pg. 232 Charles Ssenyongacase pg. 232 Charles Ssenyongapg.234 Henry Cuerrierpg.234 Henry Cuerrier

Justice reluctant to extend the Justice reluctant to extend the

ambit of the offenceambit of the offence

(scope of legal prohibition)(scope of legal prohibition)would not proceed with Aggravated sexual would not proceed with Aggravated sexual

assault since the act did not fit the Actus assault since the act did not fit the Actus Reus of the offenceReus of the offence

Actus Reus & Mens ReaActus Reus & Mens Rea

Two components of most crimes.Two components of most crimes. Both must be proven beyond any Both must be proven beyond any

reasonable doubt.reasonable doubt.

Actus ReusActus Reus

The act.The act.

The prohibited act must have been The prohibited act must have been committed as described in the statue committed as described in the statue outlining the offence.outlining the offence.

Mens ReaMens Rea

The intent (or guilty mind)The intent (or guilty mind)

Not only must the act have been Not only must the act have been committed, but it must be committed committed, but it must be committed wilfully- with intent.wilfully- with intent.

As opposed to by mistake or some As opposed to by mistake or some other defence (insanity, mistake of other defence (insanity, mistake of facts)facts)

Criminal Code

PART VIII: OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

Aggravated sexual assault

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the

complainant.

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146

A sample of the text in the Criminal CodeA sample of the text in the Criminal Code

For class discussion:

• 2) Every person who commits an

aggravated sexual assault is guilty of an

indictable offence and liable

– (a) where a firearm is used in the commission

of the offence, to imprisonment for life and to a

minimum punishment of imprisonment for a

term of four years; and

– (b) in any other case, to imprisonment for life.

A website with the A website with the Criminal code Criminal code

(CanLii)(CanLii)

http://www.canlii.org/ca/sta/c-http://www.canlii.org/ca/sta/c-46/46/

AssaultAssault is defined as is defined as

the ‘the ‘non-consensualnon-consensual

application of application of forceforce by by

one person to another.’one person to another.’

The Justice said,The Justice said,

“the law of assault is too blunt an “the law of assault is too blunt an instrument to be used to excise AIDS from instrument to be used to excise AIDS from the body politic. If no other section of the the body politic. If no other section of the Criminal Code catches the conduct Criminal Code catches the conduct complained of, then it is a matter for complained of, then it is a matter for Parliament to address through legislation.”Parliament to address through legislation.”What did he mean?What did he mean?

For class discussion:

What is onus?

Upon whom does the Onus fall?

•The person with the disease?

•The person willing to engage in sexual activity at their own risk?

Consider: attitudes, values, realities of life today

It took a decision by the It took a decision by the Supreme Court of Canada Supreme Court of Canada in the case R v. Cuerrier in the case R v. Cuerrier to resolve the question.to resolve the question.

The Law The Law pg.234 pg.234

But he had her consent, didn’t he?But he had her consent, didn’t he?

Was it ‘vitiated by fraud’?Was it ‘vitiated by fraud’?

..was the consent weakened or debased by ..was the consent weakened or debased by the fact that she was not informed that he the fact that she was not informed that he was HIV positive?was HIV positive?

vi·ti·ate   ˈvɪʃ iˌeɪt/ Show Spelled[vish-ee-eyt] Show IPA –verb (used with object), -at·ed, -at·ing. 1. to impair the quality of; make faulty; spoil. 2. to impair or weaken the effectiveness of. 3. to debase; corrupt; pervert.

Cuerrier was charged with Cuerrier was charged with Aggravated Aggravated

AssaultAssault..

Not Not Aggravated Aggravated SexualSexual Assault Assault since the since the

sexual component was not an offence.sexual component was not an offence.

Offences and DefensesOffences and Defenses

AnAn Offence Offence is an act that violates the law. is an act that violates the law. A A criminal offencecriminal offence is a violation of the is a violation of the Criminal Code. Criminal Code.

A A defensedefense is an explanation or excuse for is an explanation or excuse for your commission of an offence. If your your commission of an offence. If your defense is accepted, you will be defense is accepted, you will be acquittedacquitted. .

Commit offence

Charged

Convicted (Accused can appeal)

Acquitted (Crown can appeal)

Trial

Sentencing (Accused or Crown can

appeal)

Gather basic evidence

Gather all evidence

Free

Chapter : Criminal Offences

Offences against:

The PersonPropertyMorality

Classification of Offences

1. Summary Conviction offence

2. Indictable Offence

3. Hybrid Offence

Summary Conviction Offence: less serious offences

• Causing a disturbance in a public place• Loitering• Being in an illegal gaming house• Driving someone’s car without permission

• (Generally) Trial cannot proceed if more than 6 months have passed between the time of the act and the start of trial proceedings.

• Max penalty: 6 months and/or $2000.

Indictable Offences:more serious offences

• Murder• Arson• Making/using counterfeit money• Forgery

• No limit on time between act and laying of charges.

• Once charged, trial should be within reasonable time (6 months)

• Police have broader search powers when investigating indictable offence.

• If facing 5+ years, may have Jury.

Hybrid

• May be treated by the Crown as summary conviction or indictable.

• Indictable until stated otherwise.

• Examples:Theft under $1000MischiefCalling false fire alarmConspiring/attempting to commit an offence

Mitigating circumstancesMitigating circumstances (is not a full defense) are (is not a full defense) are factors that reduce the seriousness of the offence or factors that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the serve as partial excuses. They generally reduce the sentence, sometimes even the charge.sentence, sometimes even the charge.

Example: You are charged with drinking and driving but Example: You are charged with drinking and driving but you have a perfect driving record and you volunteer you have a perfect driving record and you volunteer at a shelter. at a shelter.

Aggravating circumstancesAggravating circumstances are factors that make the are factors that make the offence worse. They work against the accused. offence worse. They work against the accused.

Example, you are caught shoplifting and it is the 7Example, you are caught shoplifting and it is the 7thth time time you have been caught in 3 years.you have been caught in 3 years.

Mitigating and Aggravating circumstances

Offences against the person Offences against the person (people)(people)

(Approximately 10% of all crimes reported.(Approximately 10% of all crimes reported.

HomicideHomicide Murder (1Murder (1stst degree, 2 degree, 2ndnd degree) degree) ManslaughterManslaughter InfanticideInfanticide

Counseling or aiding suicideCounseling or aiding suicide AssaultAssault Sexual AssaultSexual Assault

AssaultAssault

Intentionally using force against Intentionally using force against another person without consent, another person without consent, threatening someone, and displaying threatening someone, and displaying a weapon while interfering with their a weapon while interfering with their movements.movements.

Shaking a fist may constitute assault!Shaking a fist may constitute assault! Criminal negligence: a reckless Criminal negligence: a reckless

individual.individual.

AssaultAssault

(Simple) Assault ((Simple) Assault (max 5 yrsmax 5 yrs) – like a hit, ) – like a hit, slap, push, or punch etc. that does not slap, push, or punch etc. that does not result in lasting bodily harm. (not more than result in lasting bodily harm. (not more than a bruise or scratch)a bruise or scratch)

Assault causing bodily harm (Assault causing bodily harm (max 10 yrsmax 10 yrs) – ) – Assault resulting in harm such as broken Assault resulting in harm such as broken limb.limb.

Aggravated Assault (Aggravated Assault (max 15 yrsmax 15 yrs) –Assault ) –Assault resulting in maiming or disfiguring resulting in maiming or disfiguring permanently affecting victim. permanently affecting victim.

Assault: the Legal Perspective Assault: the Legal Perspective ► The offence: an assault is an unwelcome interference with a person. It The offence: an assault is an unwelcome interference with a person. It

is a form of violence. is a form of violence. ► The offence of assault varies from The offence of assault varies from Simple AssaultSimple Assault to to Aggravated Aggravated

Sexual AssaultSexual Assault..

This definition sets out the elements of the offence.This definition sets out the elements of the offence. ► Assault causing bodily harmAssault causing bodily harm occurs when: occurs when:

► a person a person intentionallyintentionally uses force of any sort against uses force of any sort against another person another person

► this is done without the victim's this is done without the victim's consentconsent or or agreement agreement

► the victim is injured and the injury is something more the victim is injured and the injury is something more serious and long-term than a scratch or small bruise.serious and long-term than a scratch or small bruise.

► Source: section 267 of the Source: section 267 of the Criminal CodeCriminal Code

What does the word What does the word intentionallyintentionally mean?mean?

…well, from case law, we know what it is …well, from case law, we know what it is notnot!!

This is what two courts have said about intention: This is what two courts have said about intention:

► A reflex action lacks the necessary intent to A reflex action lacks the necessary intent to constitute an assault. constitute an assault. Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Appeal) Appeal)

► An accused An accused does not have to intenddoes not have to intend to cause to cause bodily harm. What is necessary is that a bodily harm. What is necessary is that a reasonable personreasonable person would be able to predict would be able to predict that his or her actions posed a risk of bodily that his or her actions posed a risk of bodily harm. harm. Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Canada) Canada)

How does the court decide if a victim How does the court decide if a victim has given has given consentconsent? ?

This is what two courts have said about consent. This is what two courts have said about consent. ► A person cannot consent to being injured in a A person cannot consent to being injured in a

serious way.serious way.Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme

Court of Canada)Court of Canada)

► If the victim provokes the assault, the courts If the victim provokes the assault, the courts have said that the victim consented to the have said that the victim consented to the assault. assault. Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court) Case source: R. v. Oppal (1984), 43 C.R. (3d) 365 (B.C. Provincial Court)

► Of course the response to the provocation must be reasonable. Being Of course the response to the provocation must be reasonable. Being slightly provoked does not give right to smashing a person’s head.slightly provoked does not give right to smashing a person’s head.

►All elements of the definition of All elements of the definition of the offence need to be proven by the offence need to be proven by the Crown in order to convict a the Crown in order to convict a person of this offence. person of this offence.

►Those elements that are in doubt Those elements that are in doubt become legal issues. become legal issues.

►For example, whether or not the For example, whether or not the victim "consented" is often a victim "consented" is often a legal issue in cases of assault.legal issue in cases of assault.

What does the law say about acting What does the law say about acting in self-defence? in self-defence?

Here is how the defence is defined: Here is how the defence is defined:

►Self-defenceSelf-defence occurs when: occurs when: ► a person attacks you when you have done a person attacks you when you have done

nothing to nothing to provokeprovoke or cause the attack or cause the attackSource: section 34 of the Source: section 34 of the Criminal CodeCriminal Code

► you defend yourself from a clear and present you defend yourself from a clear and present danger withdanger with onlyonly with as much force as is with as much force as is necessary to resist and you do not intend to necessary to resist and you do not intend to cause death or grievous bodily harmcause death or grievous bodily harmSource: section 34 of the Source: section 34 of the Criminal CodeCriminal Code

How can a judge know how much How can a judge know how much force was necessary in the force was necessary in the

circumstances? circumstances?

► This is a difficult decision to make and it This is a difficult decision to make and it cannot be made without looking at all the cannot be made without looking at all the facts. However the following interpretation facts. However the following interpretation by a court suggests the court does not by a court suggests the court does not demand a completely rational reaction: demand a completely rational reaction:

► A person under attack is not expected to A person under attack is not expected to stop to weigh or measure his or her stop to weigh or measure his or her reactions perfectly or precisely. reactions perfectly or precisely. Case source: R. v. Baxter (1975), 33 C.R.N.S. 22 Case source: R. v. Baxter (1975), 33 C.R.N.S. 22 R v. Martin (1985) 47 C.R. (3d) 342 (Que. C.A.)R v. Martin (1985) 47 C.R. (3d) 342 (Que. C.A.)

►An accused person who is An accused person who is successful in arguing self-defence successful in arguing self-defence will be acquitted of the charge. will be acquitted of the charge.

Sexual Assault (Sexual Assault (max 10 yrsmax 10 yrs) – non-consensual ) – non-consensual sexual touch (does not have to be violent) sexual touch (does not have to be violent) including rape (which is not always violent).including rape (which is not always violent).

Sexual Assault Causing bodily harm (Sexual Assault Causing bodily harm (max 14yrsmax 14yrs) – ) – Sexual assault, and causing some bodily harm but Sexual assault, and causing some bodily harm but not grievous.not grievous.

Aggravated sexual assault (Aggravated sexual assault (max lifemax life) – sexual ) – sexual assault and wounding, maiming or disfiguring.assault and wounding, maiming or disfiguring. (if a firearm is involved, there is a mandatory minimum 4 (if a firearm is involved, there is a mandatory minimum 4

yrs)yrs)

Sexual Sexual AssaultAssault

Sexual Assault Sexual Assault the Legal Perspectivethe Legal Perspective

How does the law define a sexual assault?How does the law define a sexual assault? Sexual assault occurs when... Sexual assault occurs when...

a person intentionally "applies force" to another a person intentionally "applies force" to another person person

&& this is done without the victim's this is done without the victim's consentconsent or or

voluntary agreement voluntary agreement &&

sexual activitysexual activity is involved. is involved. Source: section 265 of the Source: section 265 of the Criminal Code. Criminal Code. See also s. 271, 272, 273. See also s. 271, 272, 273.

Thus it is a criminal offence to engage in sexual Thus it is a criminal offence to engage in sexual activity with another person who does not consent. activity with another person who does not consent.

What does "apply force" mean in a What does "apply force" mean in a sexual assault situation? sexual assault situation?

Think of "force" as "physical contact". Think of "force" as "physical contact". There does not have to be a violent There does not have to be a violent demonstration of force. Touching certain demonstration of force. Touching certain body parts, for example, also fits the body parts, for example, also fits the definition of "applying force". definition of "applying force".

What does "sexual activity" mean? What does "sexual activity" mean?

The part of the body touched, the The part of the body touched, the nature of the contact, the nature of the contact, the surrounding circumstances including surrounding circumstances including what was said - these are all relevant what was said - these are all relevant factors in determining if there was a factors in determining if there was a sexual aspect to the "physical sexual aspect to the "physical contact". contact".

The defence: in many cases the accused person argues that the

victim consented, or agreed, to the sexual activity.

Most victims will say they didn't consent, and Most victims will say they didn't consent, and most accused persons will say the victim did most accused persons will say the victim did

consent. Does the law help people interpret the consent. Does the law help people interpret the meaning of "consent"? meaning of "consent"?

The first source to consult for a definition of The first source to consult for a definition of what is and isn't "consent" is the Criminal what is and isn't "consent" is the Criminal Code. Code.

...note that the ...note that the CodeCode uses the word uses the word "complainant" rather than "victim". "complainant" rather than "victim".

Consent with regards to sexual Consent with regards to sexual activityactivity

Consent: Consent: the voluntary agreement the voluntary agreement of the complainant to engage in the of the complainant to engage in the sexual activity in questionsexual activity in question

Source: section 273.1, subsectionSource: section 273.1, subsection (1) (1) of the of the Criminal CodeCriminal Code

No consent is obtained whereNo consent is obtained where

The complainant is incapable of consenting to the The complainant is incapable of consenting to the activity; activity;

The complainant expresses, by words or conduct, a The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or lack of agreement to engage in the activity; or

The complainant, having consented to engage in The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. of agreement to continue to engage in the activity. Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Criminal CodeCriminal Code

2011 May SCC Ruling: When the complainant is 2011 May SCC Ruling: When the complainant is asleep or not conscious, regardless of giving advance asleep or not conscious, regardless of giving advance consent.consent.

This is often referred to as the “no This is often referred to as the “no

means no” law. The last clause means no” law. The last clause

states that if consent is given but states that if consent is given but

then withdrawn during the activity, then withdrawn during the activity,

then this must be taken as a then this must be taken as a NONO. .

One can imagine that there are situations One can imagine that there are situations where there is confusion about this issue where there is confusion about this issue and the accused person honestly thinks and the accused person honestly thinks the other person is consenting. What then? the other person is consenting. What then?

When this happens, the issue changes. The When this happens, the issue changes. The complainant says there was no consent. complainant says there was no consent. The adefendant’s reply is that even if there The adefendant’s reply is that even if there was no consent, he/she had an was no consent, he/she had an "honest but "honest but mistaken"mistaken" belief that there was consent. belief that there was consent. The courts have accepted, in the past, The courts have accepted, in the past, such an explanation as a valid defence.such an explanation as a valid defence.

More recently the courts have been limiting More recently the courts have been limiting the use of "the use of "honest beliefhonest belief" as a defence. " as a defence.

When is "honest belief in consent" When is "honest belief in consent" a legitimate defence? a legitimate defence?

This is clarified in the This is clarified in the Criminal CodeCriminal Code: : Where an accused alleges that he/she believed that the Where an accused alleges that he/she believed that the

complainant consented to the conduct...a judge, if satisfied that complainant consented to the conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.absence of reasonable grounds for that belief.Source: section 265(4) of the Source: section 265(4) of the Criminal CodeCriminal Code

There There must be sufficient evidencemust be sufficient evidence which, which, if believed, would constitute a defence. if believed, would constitute a defence. It is not enough for the accused to It is not enough for the accused to simply claim the he/she honestly simply claim the he/she honestly believed there was consent. (It has to be believed there was consent. (It has to be proven) proven)

Homicides Homicides (Death caused by another(Death caused by another))

MurderMurder: 1: 1stst degree, 2 degree, 2ndnd degree degree

ManslaughterManslaughter (2(2ndnd degree murder may be degree murder may be reduced to manslaughter- if reduced to manslaughter- if provocationprovocation can can be proven.)be proven.)

InfanticideInfanticide (Mother kills baby within days of (Mother kills baby within days of giving birth – altered mental state)giving birth – altered mental state)

MurderMurder: 1: 1stst degree, 2 degree, 2ndnd degree degree First degree murder is a planned

and deliberate murder. Or: the killing of any peace officer (Police, Jail guard) Or: when someone is killed while you are committing certain

serious indictable criminal offences like arson, kidnapping, high jacking, sexual assault.

Max life, parole possible after 25

Second degree murder is a an intentional (but not planned) killing.

This charge can sometimes be reduced to a manslaughter charge.

Max life, parole possible after 10

Manslaughter Manslaughter definition:

Unlawful killing of a human being without malice or deliberation.

Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BCE.[1]

The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill – a state of mind called malice, or malice aforethought – or the knowledge that one's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.

Infanticide

A charge that can only be applied to a woman who has recently given birth and causes the death of her child a short time after giving birth.

Carries a maximum of 5 years in prison.

Criminal negligence causing Criminal negligence causing death-death-(article)(article)

Negligent or reckless behaviour that results in the death of another.

Max life

Assisted Suicide

Assisted suicide (Euthanasia, consensual homicide, physician assisted suicide)

Carries a maximum sentence of 14 years in prison.

Robert Latimer – Mandatory Robert Latimer – Mandatory minimumsminimums

What kinds of behaviour could be What kinds of behaviour could be considered provocation for an considered provocation for an

attack? attack? ► Provocation includes provocation by blows, Provocation includes provocation by blows,

words or gestures. words or gestures.

Source: section 36 of the Source: section 36 of the Criminal CodeCriminal Code

► Not always clear, and is subjective. Case by Not always clear, and is subjective. Case by Case.Case.

DefensesDefenses Mental disorder Mental disorder (results in an NCR (not criminally responsible) (results in an NCR (not criminally responsible)

acquittal)acquittal) Automatism (sleepwalking pg.305)Automatism (sleepwalking pg.305) Self defenseSelf defense Intoxication (controversial and limited)Intoxication (controversial and limited) Mistake of fact (accused was mistaken Mistake of fact (accused was mistaken

about the circumstances. Ex. Didn’t know about the circumstances. Ex. Didn’t know they were buying stolen goods)they were buying stolen goods)

Compulsion (s.17 of Criminal Code. There Compulsion (s.17 of Criminal Code. There are only certain minor criminal offences are only certain minor criminal offences that may be excused with compulsion)that may be excused with compulsion)

What leads to criminal What leads to criminal behaviour?behaviour?

Skipping class! Skipping class!

Different explanations focus Different explanations focus on different aspects of on different aspects of

human nature.human nature.

Physiology/ biologyPhysiology/ biology, , psychologypsychology, , sociologysociology, ,

politicspolitics, , economicseconomics..

Cesare LombrosoCesare Lombroso(late 19th century)(late 19th century)

Tried to relate physical characteristics such Tried to relate physical characteristics such as jaw size to criminal behaviour!as jaw size to criminal behaviour!

What is the point? What would we do with What is the point? What would we do with this information even if we could relate crime this information even if we could relate crime

to certain characteristics?to certain characteristics?

Sometime in the late 19Sometime in the late 19thth/early /early twentieth century, 2 streams of twentieth century, 2 streams of

theory evolved:theory evolved:

•Chicago School

•Sigmund Freud

Chicago School:Chicago School:

Linked criminality to underlying Linked criminality to underlying social and economic factors.social and economic factors.

Argued that social and Argued that social and environmental factors were environmental factors were

important in examining deviant important in examining deviant behavior.behavior.

Sigmund Freud:Sigmund Freud:

Links criminality to individual psychology.Links criminality to individual psychology. Believes that all humans have criminal Believes that all humans have criminal tendencies, but that these are modified tendencies, but that these are modified through inner controls learned during through inner controls learned during

childhood. childhood. Freud believed that faulty identification with Freud believed that faulty identification with

the parent was the most common factor the parent was the most common factor contributing to criminal behaviour.contributing to criminal behaviour.

Most experts agree that Most experts agree that social status and income of social status and income of the parents have little or no the parents have little or no

direct effect on the direct effect on the likelihood that children will likelihood that children will

turn to delinquency, turn to delinquency, although they may in some although they may in some cases have indirect effects cases have indirect effects by amplifying life problems by amplifying life problems

that can lead to crime.that can lead to crime.

Elements of an Elements of an OffenceOffence

To obtain a To obtain a convictionconviction, the , the crowncrown must must prove,prove,

beyond a beyond a reasonable doubtreasonable doubt,,

that that

each element of the each element of the offenceoffence

with which the accused is charged was in fact with which the accused is charged was in fact committed by the accusedcommitted by the accused..

Criminal offences are made up of two Criminal offences are made up of two elements:elements:

1. The Actus Reus1. The Actus Reus the prohibited act the prohibited act

2. The Mens Rea2. The Mens Rea The criminal intent The criminal intent

You have to do something You have to do something illegal and you had to illegal and you had to

have done it on purpose.have done it on purpose.P.246 P.246

p250 #3p250 #3

In the late 19In the late 19thth century, questions century, questions about about mens reamens rea (intent) were very (intent) were very

straightforward. straightforward.

-If a reasonable person could -If a reasonable person could foresee what was going to happen, foresee what was going to happen,

then the person was guilty. then the person was guilty.

It was assumed that you intended It was assumed that you intended the natural consequence of you the natural consequence of you

actions.actions.

More recently, the courts in More recently, the courts in Canada have developed a Canada have developed a

preference for the preference for the subjective subjective standardstandard..

Subjective theory requiresSubjective theory requires the the Crown to proveCrown to prove that the that the

accused had the accused had the

Requisite Intention Requisite Intention at the time the offence was at the time the offence was

committed.committed. P249P249

Culpability Culpability GuiltGuilt

Whether culpability will be based on Whether culpability will be based on

subjective mens reasubjective mens rea or or objective objective

mens reamens rea is not based on the accused is not based on the accused

but rather it is based on the offence.but rather it is based on the offence.

The law will determine if a certain The law will determine if a certain

offence will be measured objectively offence will be measured objectively

or subjectively and all trials or subjectively and all trials

regarding this offence will be tried regarding this offence will be tried

the same way.the same way.

Government loves statistics!Government loves statistics!

http://www40.statcan.gc.ca/z01/http://www40.statcan.gc.ca/z01/cs0002-eng.htmcs0002-eng.htm