CRIMINAL LAW

What is a crime? What is a crime? Dictionary.com/crime

Whatever Parliament defines as a crime.Whatever Parliament defines as a crime. Any action, or omission of an action that is prohibited by lawAny action, or omission of an action 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.

Common definition: a wrongful act that must be controlled for the protection of society as a whole. Common definition: a wrongful act that must be controlled for the protection of society as a whole. Criminal Offences  Prosecuted by the Crown (on behalf of society) Crown prosecutor Crown attorney Crown Counsel

3 main areas of Criminal law ‘coverage’ Protection of People Protection of People Protection of Property Protection of Property Protection of Morality Protection of Morality

Changes to the Law (Chapter 1) Changes to the Law (Chapter 1) Once considered criminal: Sodomy Sodomy Abortion Abortion Suicide Suicide

Punishment Should the punishment = the harm caused? (An eye for an eye?) Should the punishment = the harm caused? (An eye for an eye?) What is unacceptable punishment? What is unacceptable punishment? Capital punishment Capital punishment Corporal Punishment Corporal Punishment

The Criminal Code Defines offences Defines offences Sets out minimum & maximum penalties Sets out minimum & maximum penalties Is open to interpretation Is open to interpretation Case law is critical Case law is critical

What happens when harm is committed, but not defined in the Criminal code? Ex. Knowingly transmitting HIV case pg. 232 Charles Ssenyonga pg.234 Henry Cuerrier

Justice reluctant to extend the ambit of offense (scope of legal prohibition) would not proceed with Aggravated sexual assault since the act did not fit the Actus Reus of the offence

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 Code

A website with the Criminal code (CanLii)

Assault is defined as the ‘non-consensual application of force by one person to another.’

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

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

It took a decision by the Supreme Court of Canada in the case R v. Cuerrier to resolve the question. The Law pg.234

But he had her consent… Was is ‘vitiated by fraud’? Was is ‘vitiated by fraud’?..was the consent weakened or debased by the fact that she did not know he was HIV positive?

Cuerrier was charged with Aggravated Assault. Not Aggravated Sexual Assault since the sexual component was not an offence.

Offences and Defenses Offences are acts that violate the law. A criminal offence is a violation of the Criminal Code. Offences are acts that violate the law. A criminal offence is a violation of the Criminal Code. A defense is an explanation or excuse for your commission of an offence. If your defense is accepted, you will be acquitted. A defense is an explanation or excuse for your commission of an offence. If your defense is accepted, you will be acquitted. Mitigating circumstances (weaker than defenses) are factorss that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the charge or the sentence. Mitigating circumstances (weaker than defenses) are factorss that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the charge or the sentence. For example you are charged with drinking and driving but you have a perfect driving record and you volunteer at a shelter. Aggravating circumstances are factors that make the offence worse. They work against the accused. For example, you are caught shoplifting and it is the 7 th time you have been caught in 3 years. Aggravating circumstances are factors that make the offence worse. They work against the accused. For example, you are caught shoplifting and it is the 7 th time you have been caught in 3 years.

Assault Simple assault (max 5 yrs) – like a hit, slap or push that does not result in lasting bodily harm. (not more than a bruise or scratch) Simple assault (max 5 yrs) – like a hit, slap or push that does not result in lasting bodily harm. (not more than a bruise or scratch) Assault causing bodily harm (max 10 yrs) – Assault resulting in harm such as broken limb. Assault causing bodily harm (max 10 yrs) – Assault resulting in harm such as broken limb. Aggravated Assault (max 15 yrs) –Assault resulting in maiming or disfiguring permanently affecting victim. Aggravated Assault (max 15 yrs) –Assault resulting in maiming or disfiguring permanently affecting victim.

Sexual Assault (max 10 yrs.) – non-consensual sexual touch. (Does not have to be violent) Sexual Assault (max 10 yrs.) – non-consensual sexual touch. (Does not have to be violent) Sexual Assault Causing bodily harm (max 14yrs) – Sexual assault and causing bodily harm (more serious than a scratch or bruise. Sexual Assault Causing bodily harm (max 14yrs) – Sexual assault and causing bodily harm (more serious than a scratch or bruise. Aggravated sexual assault (max life) – sexual assault and wounding, maiming or disfiguring. (if a firearm is involved, min 4 yrs) Aggravated sexual assault (max life) – sexual assault and wounding, maiming or disfiguring. (if a firearm is involved, min 4 yrs) Sexual Assault

Murder (see handout) 1 st degree 1 st degree 2 nd degree 2 nd degree Manslaughter Manslaughter 2 nd degree may be reduced to manslaughter if provocation can be proven. 2 nd degree may be reduced to manslaughter if provocation can be proven.

Assault: the Legal Perspective ► The offence: an assault is an unwelcome interference with a person. It is a form of violence. ► The offence of assault varies from Simple Assault to Aggravated Sexual Assault. This definition sets out the elements of the offence. ► Assault causing bodily harm occurs when: ► a person intentionally uses force of any sort against another person ► this is done without the victim's consent or agreement ► the victim is injured and the injury is something more serious and long-term than a scratch or small bruise. ► Source: section 267 of the Criminal Code

What does the word intentionally mean? …well, from case law, we know what it is not! This is what two courts have said about intention: ► A reflex action lacks the necessary intent to constitute an assault. Case source: R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ontario Court of Appeal) ► An accused does not have to intend to cause bodily harm. What is necessary is that a reasonable person would be able to predict that his or her actions posed a risk of bodily harm. Case source: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (Supreme Court of Canada)

How does the court decide if a victim has given consent? This is what two courts have said about consent. ► A person cannot consent to being injured in a serious way. Case source: Jobidon v. The Queen (1991), 6 C.C.C. (3d) 454 (Supreme Court of Canada) ► If the victim provokes the assault, the courts have said that the victim consented to the assault. 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 slightly provoked does not give right to smashing a person’s head.

► All elements of the definition of the offence need to be proven by the Crown in order to convict a person of this offence. ► Those elements that are in doubt become legal issues. ► For example, whether or not the victim "consented" is often a legal issue in cases of assault.

What does the law say about acting in self-defence? Here is how the defence is defined: ► Self-defence occurs when: ► a person attacks you when you have done nothing to provoke or cause the attack Source: section 34 of the Criminal Code ► you defend yourself from a clear and present danger with only with as much force as is necessary to resist and you do not intend to cause death or grievous bodily harm Source: section 34 of the Criminal Code

What kinds of behaviour could be considered provocation for an attack? ► Provocation includes provocation by blows, words or gestures. Source: section 36 of the Criminal Code

How can a judge know how much force was necessary in the circumstances? ► This is a difficult decision to make and it cannot be made without looking at all the facts. However the following interpretation by a court suggests the court does not demand a completely rational reaction: ► A person under attack is not expected to stop to weigh or measure his or her reactions perfectly or precisely. Case source: R. v. Baxter (1975), 33 C.R.N.S. 22 R v. Martin (1985) 47 C.R. (3d) 342 (Que. C.A.)

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

Sexual Assault the Legal Perspective How does the law define a sexual assault? Sexual assault occurs when... Sexual assault occurs when... a person intentionally "applies force" to another person & this is done without the victim's consent or voluntary agreement & sexual activity is involved. Source: section 265 of the Criminal Code. See also s. 271, 272, 273. Thus it is a criminal offence to engage in sexual activity with another person who does not consent.

What does "apply force" mean in a sexual assault situation? Think of "force" as "physical contact". There does not have to be a violent demonstration of force. Touching certain body parts, for example, also fits the definition of "applying force".

What does "sexual activity" mean? The part of the body touched, the nature of the contact, the surrounding circumstances including what was said - these are all relevant factors in determining if there was a sexual aspect to the "physical 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 accused persons will say the victim did consent. Does the law help people interpret the meaning of "consent"? The first source to consult for a definition of what is and isn't "consent" is the Criminal Code. Note that the Code uses the word "complainant" rather than "victim".

Consent with regards to sexual activity Consent: the voluntary agreement of the complainant to engage in the sexual activity in question Source: section 273.1, subsection (1) of the Criminal Code

No consent is obtained where The complainant is incapable of consenting to the activity; The complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Source: section 273.1, subsection (2), clauses (b), (d) and (e) of the Criminal Code

This is also referred to as the NO MEANS NO! law. The last clause states that if consent is given but then withdrawn during the activity, then this must be taken as a NO.

One can imagine that there are situations where there is confusion about this issue and the accused person honestly thinks the other person is consenting. What then? When this happens, the issue changes. The complainant says there was no consent. The accused's reply is that even if there was no consent, he/she had an "honest but mistaken" belief that there was consent. The courts have accepted, in the past, such an explanation as a valid defence. More recently the courts have been limiting the use of "honest belief" as a defence. More recently the courts have been limiting the use of "honest belief" as a defence.

When is "honest belief in consent" a legitimate defence? This is clarified in the Criminal Code: Where an accused alleges that he/she believed that the complainant consented to the conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. Source: section 265(4) of the Criminal Code Where an accused alleges that he/she believed that the complainant consented to the conduct...a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. Source: section 265(4) of the Criminal Code There must be sufficient evidence which, if believed, would constitute a defence. It is not enough for the accused to simply claim the he/she honestly believed there was consent. (It has to be proven)

Defenses (p298-p311)  Mental disorder (results in an NCR (not criminally responsible) acquittal)  Automatism (sleepwalking pg.305)  Self defense  Intoxication (controversial and limited)  Mistake of fact (accused was mistaken about the circumstances. Ex. Didn’t know they were buying stolen goods)  Compulsion (s.17 of Criminal Code. There are only certain minor criminal offences that may be excused with compulsion)

What leads to criminal behaviour?

Skipping class!

Different explanations focus on different aspects of human nature. Physiology/ biology, psychology, sociology, politics, economics.

Cesare Lombroso (late 19th century) Tried to relate physical characteristics such as jaw size to criminal behaviour! What is the point? What would we do with this information even if we could relate crime to certain characteristics?

Sometime in the late 19 th /early twentieth century, 2 streams of theory evolved: Chicago School Sigmund Freud

Chicago School: Linked criminality to underlying social and economic factors. Argued that social and environmental factors were important in examining deviant behavior.

Sigmund Freud: Links criminality to individual psychology. Believes that all humans have criminal tendencies, but that these are modified through inner controls learned during childhood. Freud believed that faulty identification with the parent was the most common factor contributing to criminal behaviour.

Most experts agree that social status and income of the parents have little or no direct effect on the likelihood that children will turn to delinquency, although they may in some cases have indirect effects by amplifying life problems that can lead to crime.

Elements of an Offence

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

Criminal offences are made up of two elements: 1. The Actus Reus  the prohibited act 2. The Mens Rea  The criminal intent

You have to do something illegal and you had to have done it on purpose. P.246 p250 #3

In the late 19 th century, questions about mens rea (intent) were very straightforward. -If a reasonable person could foresee what was going to happen, then the person was guilty. It was assumed that you intended the natural consequence of you actions.

More recently, the courts in Canada have developed a preference for the subjective standard. Subjective theory requires the Crown to prove that the accused had the Requisite Intention at the time the offence was committed. P249

Culpability  Guilt

Whether culpability will be based on subjective mens rea or objective mens rea is not based on the accused but rather it is based on the offence. Whether culpability will be based on subjective mens rea or objective mens rea is not based on the accused but rather it is based on the offence. The law will determine if a certain offence will be measured objectively or subjectively and all trials regarding this offence will be tried the same way. The law will determine if a certain offence will be measured objectively or subjectively and all trials regarding this offence will be tried the same way.

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