1. Criminal Law in Canada Fundamental Concepts

2. Sources of Criminal Law The Criminal Code of Canada Main source of criminal law in Canada Describes offense and punishments. Federal Law The Controlled Drugs and Substances Act Quasi-Criminal Law Provincial & municipal laws which results in fines Eg: Highway Traffic Act

3. Types of Criminal Offences Summary Conviction Offences Minor criminal offences Can be arrested and summoned to court without delay Max $2000 fine and/or six months in jail, except for drug offenses

4. Types of Criminal Offences Indictable Offences More serious crimes, severe penalties Maximum penalty is life imprisonment Trial judges decide penalties Maximum penalty set in law, some have minimum penalty Hybrid Offences Crown attorney makes decision

5. Elements of a Crime

6. To obtain a conviction, the Crown must prove beyond a reasonable doubt that each and every element of the offence with which the accused is charged was in fact committed by the accused.

7. ActusReus The actusreus of the offence is the act or omission (failure to act) that has been identified by Parliament has harmful. It is simply to identify the actusreus – read the offence itself All elements of the actusreus must be proven for a conviction.

8. Most criminal offences require that the accused take some action. Some provisions make it a criminal offence to fail to act in circumstances where a duty to act exists – eg: necessities of life It is understood that the actusreus must be committed voluntarily – the conscious choice of an operating mind

9. s. 222(1) “a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”

10. s. 90(1) “every person commits an offence who carries a weapon … concealed, unless the person is authorized under the Firearms Act to carry it concealed”

11. Mens Rea The mental element that accompanies the commission of the actusreus The act must be done with a ‘guilty mind’ Sometimes the law specifies mensrea Some don’t and you must use case law

12. s. 319(2) it is an offence to “willfully promote hatred by communicating statements, other than in private conversation”

13. Carelessly Knowingly Recklessly Negligently Fraudulently

14. s. 265(1)(a) “A person commits an assault when … without the consent of another person, he applies force intentionally to that other person, directly or indirectly.”

15. Subjective assessment of culpability Insist that the prosecution prove that the accused actually knew that there was no consent Objective assessment of culpability The Crown must only establish that a reasonable person would have realized that there was no consent Less concerned with the actual knowledge of the accused

16. Objective Standard In the 19th century, people were presumed to intend the natural consequences of their acts. A natural consequence was one that a reasonable person would foresee. If a reasonable person would foresee an actusreus, the actusreus was intended and mensrea was present No concern for the accused’s mind at the time

17. Subjective Standard Coming into favour in Canada. Requires that the Crown prove that the accused had the requisite intention at the time the offence was committed. Links fault to the accused’s own choices, therefore fairer. Criminal law is reserved for those those consciously choose to behave criminally

18. The choice of subjective or objective is made by the offence, not the case. Once an offence is determined to be subjective or objective, it stays that way for all cases.

19. R. vs. Lamb Larry Lamb was a young man who owned a revolver that had a five-chambered cylinder that rotated clockwise each time the trigger was pulled. As a joke and with no intention of doing harm, Lamb pointed the revolver at his best friend. There were two bullets in the chambers, but neither bullet was in the chamber opposite the barrel. Lamb did not intend to fire the gun, but when he pulled the trigger, the cylinder rotated and placed a bullet opposite the barrel so that it was struck. Lamb killed his best friend.

20. A female person who, being pregnant and about to be delivered, with intent that the child shall not live or with intent to conceal the birth of the child, fails to make provision for reasonable assistance in respect of her delivery is, if the child is permanently injured as a result thereof or dies immediately before, during or in a short time after birth, as a result thereof, guilt of an indictable offence and is liable to imprisonment not exceeding five years.

21. Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

22. Absolute and Strict Liablity Regulatory offences are offences that regulate otherwise desirable behaviour where harm could be caused if carried out improperly. Until 1978 all were absolute liability offences The Crown had only to prove the actusreus, no mensrea was necessary.

23. 1978 R. v. Sault St. Marie, the Supreme Court changed this. Strict Liability Offences introduced Crown must provieactusreaus Accused may prove that it was ‘duly diligent’ (took all reasonable care to avoid committing the offence) to avoid a conviction. This is a compromise between strict liability and full criminal liability based on mensrea

24. Assume that it is an offence under environmental protection legislation to discharge pollutants into a waterway. Assume also that the crown can prove that Company X dischaged pollutants into a river.