Unit Three: Criminal Law Crime and Criminal Law

What is crime? Simplest legal definition = “whatever Parliament defines as crime” Simplest legal definition = “whatever Parliament defines as crime” Under the Constitution Act of 1982, federal law makers the sole authority to create legislation in relation to criminal law. Under the Constitution Act of 1982, federal law makers the sole authority to create legislation in relation to criminal law.

The Criminal Code Is a statute, passed and amended by the federal branch of Parliament. Is a statute, passed and amended by the federal branch of Parliament. Outlines what actions are considered crimes, how offences are prosecuted, and what penalties are given. Outlines what actions are considered crimes, how offences are prosecuted, and what penalties are given. The C.C. is not the only federal statute to deal with crime (example: Controlled Drugs and Substances Act) The C.C. is not the only federal statute to deal with crime (example: Controlled Drugs and Substances Act)

Amendments to the Code reflect changes in society, emerging issues and the preoccupations of the federal government Amendments to the Code reflect changes in society, emerging issues and the preoccupations of the federal government 1 st C.C. was created in 1892, and was based upon the English common law of crimes 1 st C.C. was created in 1892, and was based upon the English common law of crimes Changes have been made to the C.C., but no major overhaul has been conducted. Changes have been made to the C.C., but no major overhaul has been conducted.

Are you guilty of ….. Section 71 Section 71 - Prohibits dueling s. 365 s Prohibits the fraudulent practice of witchcraft, sorcery, enchantment or casting spells.

Judge-Made Criminal Law While the C.C. lists offences, judges interpret them. While the C.C. lists offences, judges interpret them. Remember: Judges rely on legal precedents to assist them in interpreting the law Remember: Judges rely on legal precedents to assist them in interpreting the law The issue of HIV/AIDS The issue of HIV/AIDS (R V. Ssenyonga) (R V. Ssenyonga)

HIV, SILENCE AND SEX Case Study: Case Study: R v. Cuerrier [1998] R v. Cuerrier [1998] > Read and discuss > Read and discuss * found on pages 234/235 * found on pages 234/235

Purpose of Criminal Law Why do we have criminal law? Why do we have criminal law? - As a society, we need strong justifications for such an intervention to occur in our lives. Basic concept: its exists to label bad behavior, to identify violations, and to impose penalties. Basic concept: its exists to label bad behavior, to identify violations, and to impose penalties. Two identifiable purposes: Retribution & Protection of society Two identifiable purposes: Retribution & Protection of society

Retribution Involves the public denouncing and punishing wrong behavior Involves the public denouncing and punishing wrong behavior In terms of criminal law, it focuses on providing a fitting response to a crime that may occur. In terms of criminal law, it focuses on providing a fitting response to a crime that may occur. The idea that retribution should be fair. The idea that retribution should be fair.

Protection of Society the concept of making society safer by discouraging future wrongdoing. the concept of making society safer by discouraging future wrongdoing. also attempts to rehabilitate the criminals. also attempts to rehabilitate the criminals. Main question: how far should the protective principle extends in justifying a state’s use of criminal law power? Main question: how far should the protective principle extends in justifying a state’s use of criminal law power? Has been a struggle for politicians, Philosophers and theorists. Has been a struggle for politicians, Philosophers and theorists.

Who Commits Crimes? Different explanations have focused on different elements of human nature Different explanations have focused on different elements of human nature - example: biology, psychology, economics, politics etc - example: biology, psychology, economics, politics etc Two theories have emerged from the early 20 th century Two theories have emerged from the early 20 th century 1) Underlying social and economic factors 2) Individual psychology

As the 20 th century progressed, criminologist looked for more complex explanations As the 20 th century progressed, criminologist looked for more complex explanations The issue that crime continued to grow despite the increase in the overall standard of living The issue that crime continued to grow despite the increase in the overall standard of living

Who are the Victims of Crime? We all make adjustments in our daily routines that are designed to avoid or prevent crime We all make adjustments in our daily routines that are designed to avoid or prevent crime Fear of victimization sometimes limits our choices Fear of victimization sometimes limits our choices Do strategies we use to avoid victimization make sense? Do strategies we use to avoid victimization make sense?

Elements of an Offence Actus Reus Actus Reus - definition: the wrongful act or omission (failure to act) in a criminal offence - Usually simple to identify the actus reus of a crime by reading the definition of the offence set out of the C.C. - Possible Issue: example s.90(1) = what is considered a weapon? - Actus Reus must be committed voluntarily

Mens Rea Mens Rea - definition: the blame worthy mental element in a criminal offence - “an act does not become guilty unless the mind is guilty” - The technical term for a blame worthy state of mind - It must be proven, beyond a reasonable doubt.”

Analyzing a Criminal Offence Case example (R v. Cuerrier) Case example (R v. Cuerrier) Two aspects to the actus reus of an assault: direct v. indirection application of force to a person and the lack of a person's consent Two aspects to the actus reus of an assault: direct v. indirection application of force to a person and the lack of a person's consent Real world example: hockey games Real world example: hockey games If the actus reus in proven, what mens rea is needed in order to convict an individual with assault? If the actus reus in proven, what mens rea is needed in order to convict an individual with assault?

An interpretative presumption when dealing with the Criminal Code offences. An interpretative presumption when dealing with the Criminal Code offences. Interpretive presumption: inference that must accompany the interpretation of a law. Interpretive presumption: inference that must accompany the interpretation of a law.

Subjective or Objective? Over the course of history, courts have preferred one approach over the other. Over the course of history, courts have preferred one approach over the other. Initially, questions concerning mens rea were objective. Initially, questions concerning mens rea were objective. - People were presumed to intend the natural consequences of their actions.

Recently, courts have developed a preference for the subjective view point Recently, courts have developed a preference for the subjective view point Subjective theory states that the Crown prove that the accused had the intention at the time crime was committed. Subjective theory states that the Crown prove that the accused had the intention at the time crime was committed.

Absolute and Strict Liability Regulatory offences ( traffic offences, pollution offences etc) Regulatory offences ( traffic offences, pollution offences etc) Both the provincial and federal gov’t have the power to create a regulatory offence. Both the provincial and federal gov’t have the power to create a regulatory offence. The difference between r.o and crime is shown in the way in which the Crown needs to prove its case. The difference between r.o and crime is shown in the way in which the Crown needs to prove its case.

Until the mid 1970’s r.o. were treated as absolute liability offences Until the mid 1970’s r.o. were treated as absolute liability offences Absolute liability = based on the commission of an actus reus without regard to the mens rea. Absolute liability = based on the commission of an actus reus without regard to the mens rea. The Crown had to prove that the actus reus existed… mens rea didn’t matter The Crown had to prove that the actus reus existed… mens rea didn’t matter In 1978 the Supreme Court decided this approach was unfair and a new approach was created, strict liability In 1978 the Supreme Court decided this approach was unfair and a new approach was created, strict liability Strict liability = based on the commission of an actus reus and the inability to prove the defense of due diligence. Strict liability = based on the commission of an actus reus and the inability to prove the defense of due diligence.

DUE DILIGENCE & ENVIRONMENTAL CONTAMINATION Case study: Case study: R v. MacMillan Bloedel [2002] R v. MacMillan Bloedel [2002] > Read and discuss > Read and discuss * found on pages 251/252 * found on pages 251/252