Chapter 9.1/9.2

Summary Conviction Offences Minor offences light penalty Accused can be arrested or summoned without delay Generally can’t be tried if more than six months have passed since the offense was committed Maximum penalty is $2000 fine or 6 months imprisonment All provincial offences are summary conviction offence With permission, accused does not need to appear in court but can have a lawyer represent them.

Indictable Offences Serious crimes Maximum penalty ranging from two year to life imprisonment Police have broader powers of search and arrest for these crimes No time limit between act and arrest Criminal Code sets maximum penalties for these offences Penalties are imposed by a trial judge

Hybrid Offences Offences for which the Crown chooses how it will proceed either summary conviction or indictable offence. Identified as hybrid in the Criminal Code Treated as an indictable offence until trial, crown must decide how to treat the offence, depending on the circumstances of the case. Eg. Bob steals an item worth $100 and doesn’t have a criminal record, crown might proceed as a summary conviction offence. Can depend upon the severity of the offence Might leave too much discretion in hands of the Crown

Crimes are categorized in the Criminal Code This is a federal statute Contains three categories of offences:

Offences Against People Offences Against Property Offences Against Morality Murder, manslaughter, assault, sexual assault More violent crime in cities or northern parts of Canada Often associated with drugs and alcohol Theft, robbery, break & enter, mischief, fraud Property takes many forms – can be ideas, words or images for instance Gambling, prostitution, obscenity Crimes in this category often change over time as society’s views of right and wrong change

9.2 Offences Against The Person The Criminal Code is the main body of criminal law and identified hundreds of acts that are considered criminal. The offences listed in the Code are worded very precisely so that citizens are not wrongfully arrested on a criminal charge. The elements required by the Crown must be worded precisely so that they can obtain a proper conviction.

Violent Crimes Violent crimes are offences that harm the human body in some way. Approximately 13 percent of all Criminal Code offences are of a violent nature.

Homicide Killing another human being, directly or indirectly is homicide. Homicide is a criminal offence if it is culpable. A Culpable Homicide is killing for which the accused can be held legally responsible. That is intestinally causing death or shows such a recklessness that these actions are likely to cause death. Examples of culpable homicide are Murder, manslaughter and infanticide. Non-culpable homicide is not criminal and occurs when death is caused by a complete accident or in self-defense. This includes a soldier acting under orders or an individual defending ones self.

Murder The most serious violent crime is murder. An accused may be found guilty even if he/she did not have intent to kill. ex. If Ann tries to shoot Bill but her shot kills Fred instead, Ann is still guilty of murder even though she didn’t intent to kill Fred. If Bob wants revenge on Jim by committing arson, and the fire kills May who was in the building, Bob is still charged with murder even though he didn’t have intent to hurt May.

In Canada there are two classes of murder: first-degree murder and second-degree murder. First-degree murder occurs if any one of the following situations exists: Murder is planned and deliberate. ex. murder for hire Planned and deliberate are not the same. Planned refers to a “scheme or design” that has been thought out carefully. The person must have carefully considered and weighed the consequences of his/her actions. Deliberate means considered and not impulsive. Victim is a law enforcement agent, such a police officer or someone working in a prison.

Death occurs while another offensive crime is being committed. i. e Death occurs while another offensive crime is being committed. i.e. hijacking, sexual assault, threats or causing bodily harm to a third party, kidnapping Murder caused while committing or attempting to commit and offence related to criminal harassment. murder committed while using explosives to commit an offence in association with a criminal organization Murder committed while committing, or attempting to commit, an indictable offence that could also be considered a terrorist activity.

Murder that does not fit into any of the above categories, but is still caused intentionally, is classified as second-degree. The minimum sentence for both first-degree and second-degree murder is life imprisonment. The cause of death is known as causation and is usually an issue in murder trials. For example, Tina is struck by Glen and falls into the river and drowns, the trial will consider whether Glen’s striking or the drowning caused her death. In many cases, evidence given by an expert can help pinpoint causation. It is necessary to prove causation in order to convict a person of first degree murder. The Crown must prove that the accused “participated in the murder in such a manner that he was a substantial cause of the death of the victim.”

Infanticide Infanticide occurs when a mother kills her newborn child. All three of the following circumstances must be present for a crime to be considered infanticide: The accused must be the natural mother of the victim The victim must be younger than 12 months old At the time of the killing, the accused have been suffering from a mental disturbance caused by not being able to recover from giving birth to the victim. The maximum punishment for infanticide is 5 years imprisonment.

Manslaughter Manslaughter is any culpable homicide that is not murder or infanticide. The actus reus of manslaughter is needed even though the mens rea is not present. A charge of murder can be reduced to manslaughter is the accused can show provocation; however, the killing caused by provocation has to be in the heat of passion.

Assault There are 3 levels of assault listed in the Criminal Code and are classified according to their severity, with increasing penalties. Intent is the key element in all three. If the action is the result of carelessness or reflex, rather than intent, there is no assault. A threat can be an assault if there is an ability to carry it out at the time it is made.

The first level of assault consists of any of the following actions: applying intentional force to another person, either directly or indirectly, without that person’s consent attempting or threatening, by an act or a gesture, to apply force approaching or blocking the way of another person, or begging, while openly wearing carrying a weapon or an imitation of a weapon Harmful words do not equal an assault – the words must be accompanied by gestures. Ex. Jack tells Morgan, “I’m going to smack you,” it is not an assault unless Jack waves his fist.

However, an assault can occur even if the victim is unaware of it However, an assault can occur even if the victim is unaware of it. If someone shoots a gun at someone and misses, there may be an assault. In addition, consent is not necessarily given just because the victim participates in an activity that poses some risk. Ex. Olympic boxers consent to be struck with gloved fists on the head and body above the belt but not to having part of their ear bit off.

The second level of assault is assault causing bodily harm The second level of assault is assault causing bodily harm. It is committed by anyone who, while committing assault, carries, uses, or threatens to use a weapon or imitation of a weapon, or causes bodily harm. “Bodily harm” is defined as anything that interferes with the victim’s health or comfort in more than a fleeting, trifling way.

The third level of assault is aggravated assault The third level of assault is aggravated assault. This is the most severe form of assault. It is committed if a person wounds, maims, disfigures, or endangers the life of the victim. The mens rea required is only to committed bodily harm, and not necessarily to wound, maim, disfigure, or endanger the life. The defence of consent may not be accepted in some circumstances for this level of assault.

Sexual Assault Before 1983 only two types of sexual assault were in the Criminal Code: rape and indecent assault. In 1983, new legislation was introduced that reclassified sexual assault into 3 levels or categories similar to those used in regular assault cases. These changes were made for several reasons. First, the Justice Department wanted to emphasize that ‘sexual assault involves physical violence against another person.” Second, it wanted to recognize that spouses could be charged with sexual assault and that the victims could be either male or female.

The three levels of sexual assault are: Level 1 – Sexual Assault Level 2 – Sexual Assault with a weapon, threats to a third party or causing bodily harm Level 3 – Aggravated Sexual Assault

The first level of sexual assault is the most common offence and the one where the victim suffers the least physical injury. Although not specifically defined in the Criminal Code, generally speaking, it may be defined as a violation of the victim’s sexual integrity which usually involves touching of a sexual nature that is not invited or consensual. 97% of all sexual assault cases fall into this category which is a hybrid offence and carries a maximum sentence of 10 years in prison.

The second level of sexual assault is sexual assault with a weapon, threats to a third party, or causing bodily harm and involves a sexual assault in combination with threats or the use of weapons, or that results in bodily harm. This is an indictable offence and carries a maximum sentence of 14 years.

The third level of sexual assault is aggravated assault which is defined as the maiming, wounding, disfiguring or endangering the life of the victim of sexual assault. Because this is the most violent level of sexual assault an offender can receive up to life imprisonment.

Consent is a valid defence to the charge of sexual assault if the accused person had an honest and reasonable, even if mistaken belief that the victim was consenting to sexual contact. However consent cannot be used as a defence in three instances: when a victim says no, either by words or conduct, such as directly repulsing physical advances or struggling to escape an embrace when the accused is intoxicated and not able to determine if consent has been given when the accused person was reckless and deliberately blind to the victim’s responses or failed to take reasonable steps to find out if the victim was consenting

SUICIDE OR EUTHANASIA It is against the law to counsel someone to commit suicide or help them accomplish the deed. Euthanasia is classified into two categories; voluntary, where the patient wants to be allowed to die, and involuntary, where the patient cannot give consent. Eg. They are in a coma and there is no hope of recovery. The C.C.C states everyone who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide whether suicide happens or not, is guilty of an indictable offence and is liable to be imprisoned for no more than 14 years