Criminal Law

What is a Crime? Crime: Violation of a law that prohibits a specific activity, and for which a punishment has been set out by the state Offense or Crime? Cannot receive a criminal record for “offences”

Elements of a Crime Actus Reus – Guilty Act Mens Rea – Guilty Mind A defendant must not only commit a guilty act, he must also have the intention to commit a guilty act and thus have a guilty mind

Actus Reus Can refer to a specific action or failure to act (eg. failure to provide necessities of life to child) Must be voluntary, a criminal offence will not take place if the accused has no control over actions (eg. Heart attack causes a driver to strike and kill a pedestrian  would not be held criminally liable)

Kenneth Parks Case Kenneth Parks, a 23-year-old Toronto man with a wife and infant daughter, was suffering from severe insomnia caused by joblessness and gambling debts. Early in the morning of May 23, 1987 he arose, got in his car and drove 23 kilometers to his in-laws' home. He stabbed to death his mother-in-law, whom he loved and who had once referred to him as "a gentle giant." Parks also assaulted his father in law, who survived the attack. He then drove to the police and said "I think I have killed some people . . . my hands," only then realizing he had severely cut his own hands. Under police arrest he was taken to the hospital where he underwent repair of several flexor tendons of both hands.

Kenneth Parks Cont’d Because he could not remember anything about the murder and assault, had no motive for the crime whatsoever, and did have a history of sleepwalking, his team of defense experts (psychiatrists, a psychologist, a neurologist and a sleep specialist) concluded Ken Parks was 'asleep' when he committed the crime, and therefore unaware of his actions. To quote from a medical review of the case, "the legal defense was, therefore, one of homicide during noninsane automatism as part of a presumed episode of somnambulism...the defendant did not have any preexisting "disease of the mind" within the meaning of... the Canadian Criminal Code. There was no evidence for psychosis or other mental pathology. Moreover, it was believed that the clustering of such a number of triggering factors was extremely unlikely to occur again, so that the possibility of recurrence of sleepwalking with aggression was considered extremely remote.“ Parks' sleepwalking defense proved successful and on May 25, 1988, the jury rendered a verdict of not guilty. Subsequently Parks was also acquitted of the attempted murder of his father-in-law. The government appealed the decision and in 1992 the Canadian Supreme Court upheld the acquittals

Mens Rea Crown must prove beyond a reasonable doubt that the defendant carried out guilty act with criminal intent Intent: having knowledge, being reckless, or willfully blind to the consequences of the act General intent  Defendant meant to commit a crime Specific intent  also intended to commit a specific indictable offense Eg. Purse was taken and intention was to not give back Motive: Reasons for committing a crime  not necessary to prove guilt

Liability Strict Liability: Some crimes do not require mens rea  due diligence must be proven instead Due Diligence: Doing what a reasonable person would do to avoid personal injury or damages Ie. Health and safety issues (restaurants, parental negligence) Absolute Liability: defendant responsible for actions regardless of intent or neglect

Types of Offences The nature of the offence determines: Which court has jurisdiction to hear case Powers of police to arrest Accused’s right to be released before trial Type of trial received Offence types: summary, indictable, hybrid

Summary Conviction Least serious Held at Lower courts of Ontario Court of Justice No right to jury, judge alone Max penalty of $2,000 and/or 6 months in jail Notice to appear in court, not typically “arrested” Lawyer may represent accused Very few appear in Criminal Code Eg. Causing public disturbance, loitering, open alcohol in public Do not need to provide fingerprints

Indictable Offences Less serious offences appear in front of provincial court judge More serious (eg murder) must be tried in front of judge and jury Accused may have choice of superior/ provincial court judge and with/without jury Accused must show up in person to court No limit on how much time can elapse between act and arrest, can be charged years after an event Once arrested, must be tried within reasonable time Eg. Murder, Robbery, Kidnapping Fingerprints are required

Hybrid Offences Also known as dual-procedure offences Can be tried as either summary or indictable Crown chooses depending on circumstances of incident Eg. Impaired driving, assault, theft under $5,000, failing to provide necessities of life Most offences in Criminal Code are hybrid

Police are able to fingerprint those who are charged with indictable offences. Police often fingerprint those charged with petty hybrid offences in order to obtain as many fingerprints for police databanks as possible. These fingerprints can be used to identify persons in future crimes. Should police be able to fingerprint those who are charged with hybrid offences? Is this a violation of the accused’s rights? Justify your answer.

Activities Read up on the pre-trial Criminal Investigation process found on course website Fingerprinting and DNA evidence are often treated as absolutes. What problems can exist when finding fingerprints or other physical evidence that can cast doubt on the evidence? Dr. Charles Smith, a renowned pathologist, testified in numerous court cases in Ontario. Research the findings in two of the doctor’s cases and discuss the impact expert witness testimony can have on a trial. What happens when the expert witness is wrong? What impact does this have on the entire judicial system? http://www.theglobeandmail.com/news/national/14-cases-tainted-by-charles-smiths- evidence/article562711/?page=all Do plea bargains serve the best interests of the public if criminals receive lesser sentences? Justify your answer.

Statements and Confessions

Evidence Can you think of an example of: Similar Fact Evidence Opinion Evidence Hearsay Evidence Character Evidence Circumstantial Evidence Direct Evidence

Statements and Confessions RIGHTS OF THE ACCUSED Charter rights Confessions rule

What’s the difference between a statement and a confession? Statement: Any verbal communication that might implicate a suspect’s involvement in a crime. (Saying, “I always hated that guy!” or “I wasn’t even there that night!” when it is not public knowledge that the crime took place at night.) Confession: A full admission of all material facts that are necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accused’s guilt.

Right to Remain Silent Established under the Charter of Rights and Freedoms, *there is no specific wording saying a right to remain silent but can be inferred in the following: Legal Rights, section 11(c) s. 11. Any person charged with an offence has the right: c) not to be compelled to be a witness in proceedings against that person in respect of the offence s. 7. “the right to life, liberty, and security of the person.”

The Right to Remain Silent is Not Iron Clad! In November of 2007, the Supreme Court ruled 5-4 against the appeal from Jagrup Singh of his 2002 conviction for second-degree murder. The case revolved around the question of whether police breached Singh's right to remain silent when they persisted in questioning him about a shooting, even though he repeatedly made it clear that he didn't want to talk. Justice Louise Charron wrote in her majority opinion: “It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police.” In other words, a citizen can exercise his right to remain silent, but the state can try to change that citizen’s mind!

The Confessions Rule Established in English case law, the definitive statement of this rule of law came in Ibrahim v. The King, [1914] A.C. 599 (P.C.): It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

Twin Goals of the Confessions Rule: i. Protecting rights of accused ii. without unduly limiting society's ability to investigate and solve crimes

Canadian Confessions Rule The Canadian confessions rule requires the Crown to prove beyond a reasonable doubt that any statement by an accused to a person in authority was made voluntarily before the statement may be used for any purpose at trial. This rule was reinforced by the Supreme Court in R. v.Oickle, 2000.

How does the Confessions Rule differs from Charter rights? The confessions rule and the Charter rights differ in three respects: 1. The confessions rule has a broader scope of application than the Charter. The confessions rule applies whenever a person in authority questions a suspect. However, s. 10 of the Charter, for example, applies only on “arrest or detention.”

How does the Confessions Rule differs from Charter rights? 2. The burden and standard of proof is different. Under the confessions rule the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. However, under the Charter the burden is on the accused to show, on a balance of probabilities, that a violation of the defendant’s constitutional rights has occurred.

How does the Confessions Rule differs from Charter rights? 3. The remedies are different. A violation of the confessions rule always warrants exclusion of the confession. However, a violation of a Charter right warrants exclusion only if the admitting evidence would bring the administration of justice into disrepute.

R. v. Oickle Richard Oickle was under investigation by police for a series of fires. He voluntarily underwent a polygraph test. The police told him he had failed and began to question him. He eventually confessed to starting the fires. Oickle was told he was under arrest and brought to the police station for further questioning. He was put in a cell near 3am, around 9 hours after his confession. The police talked to him again at 6am asking him to provide a re-enactment, which he did.

R. v. Oickle THE DECISIONS At trial he was convicted of arson. The Court of Appeal found that the confession was inadmissible and overturned the conviction. Supreme Court found confession admissable Though Charter rights remain in force for confessions made while in custody, the common law rule still applies in all circumstances. The majority outlined factors to determine whether a confession is voluntary.

Factors To Determine if Confession is Admissable 1) the court must consider whether the police made any threats or promises. 2) the court must look for oppression. That is, where there is distasteful or inhumane conduct that would amount to an involuntary confession. 3) the court must consider whether the suspect has an operating mind. The suspect is sufficiently aware of what he or she is saying and who they are saying it to. 4) the court can consider the degree of police trickery. While trickery in general is allowed it cannot go so far as to "shock the community"

Wrongful Confessions http://www.cbc.ca/thenational/indepthanalysis/truthliesandconfessions/