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Lesson 1:

Criminal law is based on the idea that we may be criminally liable (responsible/accountable) for the consequences of our actions when we have acted and when we do so knowingly. This is the mens rea and actus reus (more on this in lesson 2!)

 

This course is broken down into three sections. In the first section, we will focus on actus reus or the guilty act. Next, we will turn to the second element of criminal offences, mens rea or the guilty mind. In the final section of the course, we will look at the use of defences.

 

Consider the following example from p. 48 of your text:

 

Rigaud is climbing a mountain with his friend Lightwood. They enter into a ferocious fight and Rigaud knocks Lightwood unconscious by hitting him on the head with an ice pick. Rigaud comes to believe that Lightwood is dead and, four hours later, he throws Lightwood over a cliff. 

 

The body is later recovered by the police. Forensic experts are prepared to testify that Lightwood was still alive when he was thrown over the cliff and that he would most probably have survived had he not been so gravely wounded by the fall from the top of the cliff. 

 

Rigaud’s lawyer claims that her client cannot be convicted of homicide because when he threw his friend off the cliff, he honestly believed Lightwood was dead. 

 

The above is called a fact pattern. As we move through the course, you will learn how to assess this and other fact patterns. However, before we learn the techniques start with your own intuition. Criminal law is designed to hold people responsible for certain kinds of actions. Do you think Rigaud is guilty? What do you think he is guilty of? Did Rigaud perform an action that he should not have performed? Does he have some kind of excuse? Spend a few minutes thinking about the case of Riguad and write down what you think about his case. Is he guilty? Should he be punished?

 

Criminal law, like any kind of law, is integral to a well-functioning society as it lays out the rules that we all need to abide by. However, unlike other areas of law, Criminal law is specifically concerned with actions we, as a society, think are wrong. Criminal law reflects the moral norms of a society. This is not to say that everything that we think is immoral or unethical is or should be illegal. But it should be the case that anything that is illegal is also immoral or unethical.

 

For example, murder is prohibited under Criminal Law. The reason we have a law against murder is that, in general, Canadians believe that murder is immoral or unethical. It is wrong to murder someone. Is this always the case? Many of us may feel that it is immoral or unethical to see a little old lady struggling with her groceries and not lend a hand. Do we have a law that makes it illegal not to help the old lady? No. So, in this case, the action (or inaction) may be unethical but still legal.

 

This example shows the relationship between our ethical standards or norms and criminal law. Criminal law is designed to prohibit what has been determined (by us) to be unethical actions. When our ethical norms change, the law should, and often does, change as well. For example, aiding someone to take their own life was considered to be immoral in Canada, and therefore there was a law that prohibited it. This law was challenged in a number of court cases, including Rodriguez v British Columbia (AG) in 1993 and Carter v Canada in 2015. The Supreme Court of Canada took into consideration that there could be cases in which helping a person to end their own life, if they were suffering from a terminal condition, might not be unethical. Now the law includes an exception that allows for medical assistance in dying—more on this below.

 

Under the Constitution Act, 1867 the Federal Government has jurisdiction over “criminal law and the procedures relating to criminal matters.” In Canada, a crimeconsists of two elements:

  1. Conduct that is prohibited because it is considered to have an “evil or injurious or undesirable effect upon the public”; and
  2. A penalty may be imposed when the prohibition is violated. (2)

 

In (1) we can see the link between what is morally or ethically wrong and what is criminal. Crimes are actions (or omissions) that are morally bad (evil), injurious (harmful to others), or have an undesirable (harmful) effect upon the public.

 

True Crimes vs Regulatory Offences

True Crimes Regulatory Offences
Action is “so abhorrent to the basic values of society that it ought to be prohibited completely.”

 

Accused* is considered morally culpable.

Action is not itself wrong, but unregulated activity would create dangerous conditions for certain members of society.

 

Accused may not be morally culpable.

Examples: murder, sexual assault, fraud, theft, robbery. Examples: regulation of packaging of food products, control of misleading advertising.

In this course, our focus will be on True Crimes. Notice that under True Crimes, the accused is considered to be morally culpable. This means we see them as failing to be ethical or moral in the circumstance. Why is this important? Usually, to be convicted of a True Crime, our expectation is that the accused acted in a way that was “on purpose” and that they “knew what they were doing.” Consider the following two scenarios:

 

Scenario A: As students leave the classroom at the end of the lecture the professor gathers her materials and pushes aside the students in her way. One of the students falls and hits his head on the desk.

 

Scenario B: As students leave the classroom at the end of the lecture the professor gathers her materials and heads for the door. As she gets near to a group of students the professor trips on her untied shoelace and crashes into a student who then falls and hits his head on the desk.

 

In Scenario A, it feels like the professor is morally culpable for her actions. She did something that she should not have done. Perhaps she should have been more patient or careful in exiting the classroom. When she chose to shove the student out of the way, she demonstrated her willingness to harm others. It is easy to say that in this scenario, the professor is guilty of a wrongful act.

 

In Scenario B, the student is hurt, but it appears to be an accident. The professor did not intend to hurt the student and did not seem to foresee the possibility that she might trip. Perhaps she was careless, but it feels like she is not guilty in the same way as the professor in the previous example.

 

We need laws that talk about both kinds of situations, but True Crimes are concerned with Scenario A. In these cases, the accused is considered morally culpable.

 

*” Accused” refers to the person who has been charged with a criminal offence. After the court case, they will be either acquitted (not guilty) or convicted (guilty) of the offence.

 

Public Law vs Private Law

There are two kinds of law, public and private. Public law has to do with the relationship between individual citizens and the Government. These areas of law are concerned with the interests that affect all Canadians. For example, Constitutional law regulates the relationship between levels of Government and the Government and the individual. The Canadian Charter of Rights and Freedoms shows what rights you have against the Government. This is different from private law, which are the laws that govern the relationship between individuals (or individuals and businesses.) These are the laws that are relevant when you sue your neighbour for loud noises or destroying your prize roses.

 

In this course, we are only looking at Criminal law, which is a type of public law. It is important to consider what this means. In criminal law, we look at laws that govern the relationship of individuals with the Government. If a person breaks the law, they are breaching the agreement they have with the Government.The agreement to follow the law. Read that sentence again. The criminal law is between the accused and the Government, not the accused and the victim. In fact, the victim (if alive) is only a witness to the actions of the accused. Does this make sense? The idea here is that the Government set up rules for our benefit. The accused has allegedly broken the rules. Therefore, the victim of the crime is, in a sense, the Government. The person harmed, on the other hand, was told they would be protected by the Government. They were not protected. Therefore the person harmed has been wronged, not by the accused, but by the Government that failed to protect them.

 

The above may sound a little strange at first. For now, just keep it in mind as you read through the materials.

 

There are two main sources of Criminal Law in Canada:  (1) Legislation and (2) Judicial decisions.

 

Legislation

Legislation referes to the laws that we have. The main statute (law) that we will be working with in this course is the Canadian Criminal Code. A link to the online version of the code is located under the Course Materials tab. I have also linked specific sections of the code in the Weekly Schedule when it is relevant.

 

The Canadian Criminal Code (or CC) contains a list of prohibited conduct (acts or omissions) that constitute criminal offences. It also includes the kind and degree of punishment if the accused is convicted.

 

In addition to the CC a few other federal statues provide criminal law. For example, the Youth Criminal Justice ActControlled Drugs and Substances Act, and Crimes Against Humanity and War Crimes Act. These statutes have a direct impact on criminal law. The Charter of Rights and Freedoms and The Canada Evidence Act have an indirect impact as they create the framework for the application of criminal law.

 

Criminal code offences fall into three categories in terms of punishment.

Summary Conviction Offences: May be tried before a provincial or territorial court judge or justice of the peace sitting alone.

 

Max penalty fine of $5000, 6 mos sentence, or both.

E.g. carrying a weapon while attending a public meeting; obtaining food, beverage or accommodation by fraud.
Indictable Offences:

 

May be tried by more than one court procedure depending on the seriousness of the offence.

 

E.g. murder, manslaughter, aggravated sexual assault
Hybrid Offences (most common):

 

May be tried using eitherSummary Conviction or Indictable procedure. E.g. Assault, assaulting a peace officer, sexual assault, unlawful imprisonment.

 

Hybrid Offences are the most common. This is because often the harm caused by a crime can differ dramatically between cases. As we will learn in future lessons assault can include kicking your friend in the leg or attacking someone to the point where they face serious injuries and possible death. Under hybrid offences the Crown can decide whether the assault is more or less serious and then follow the appropriate procedures.

The second source of Criminal law is Judicial Decisions. The laws in the CC are inexact. For example  the law says that it is first-degree murder to kill someone in a way that is planned and deliberate. What does this mean? How do we know when something is planned and deliberate? The words give us a general sense – the accused must have planned – put some kind of thought into their action. The act must be deliberate – this clearly rules out accidents. This hardly seems like enough information to know whether the accused is guilty.

 

When we have a case that is decided by a Judge (not a jury), then the Judge will interpret what “planned and deliberate” means. They will look at past cases and prior decisions. They will look at the intention of
Parliament when it drafted the law. They will see how the law was applied in previous cases. And then, they will make a call regarding how to apply it in this case. In this way, Judges are creating criminal law.

 

CAUTION: Canada is a democracy with legislative supremacy. What this means is that our elected officials (the Government) create our laws. A judge cannot create a new law. What the Judge has to do is figure out how to apply the law in the situation before them. This may mean applying the law in a way it has never been applied before. So, in a sense, they are creating law, but not in the same way that Parliament creates laws.

 

The Charter of Rights and Freedoms (or Charter) guarantees your rights or freedoms in a number of areas. For example, the Charter outlines your Freedom of Speech or Freedom of Religion. These are rights and freedoms you have against the Government. Or, in other words, the Government cannot take away your Freedom of Speech.

 

Since the Government created the CC it is the case that the laws in the CC cannot take away your rights and freedoms that are protected in the Charter. Now – here I said they cannot do it. This is actually not an absolute right. The Government can, under very limited circumstances, take away your rights. But, in general, any time the CC violates your Charter rights, the CC law will be declared invalid. The Charter provides a limit on the kinds of Criminal Laws we can have.

 

For example, Section 7 says, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (You can access the full Charter here: https://laws-lois.justice.gc.ca/eng/const/page-15.html) When a person is convicted of a crime and imprisoned the Government is violating their Section 7: Right to Liberty. This Right to Liberty is why the Canadian Government cannot show up on your doorstep and arrest you without cause. The Government cannot lock up its political rivals in order to win an election. However, when it comes to a criminal conviction this is a case where violation of this right can be justified by looking to the “principles of fundamental justice.” Basically, imprisoning people is important to our justice system and can be justified as long as they are proven to be guilty in a court of law.

 

This is a simplified version of a Charter analysis. For our purposes it is important to understand the basics, but we will not be performing more complex applications of the Charter in this course. There is a great course on the Charter that you should take if this is of interest to you!

 

I mentioned Carter v Canada (AG) SCC 2015 above. This is the case that changed our Criminal Laws regarding assisted death. The CC has two laws:

 

S.14 No person is entitled to consent to have death inflicted on them, and such consent does not affect the criminal responsibility of any person who inflicts death on the person who gave consent.

 

  1. 241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term not more than 14 years who, whether suicide ensures or not,

(a) counsels a person to die by suicide or abets a person in dying by suicide; or

(b) aids a person to die by suicide.

 

The problem was that some people who are suffering from terminal illnesses wanted to have the option to end their own lives at a time of their choosing. In some cases, this would require the help of another person. However, according to s.14 you cannot consent to your own death. Therefore, whoever ends the person’s life will be criminally liable regardless if they were asked to do so. In addition, s.241 says you are guilty of an offence if you counsel, aid or abet another person in taking their own life. If a person with a terminal illness wanted advice on how to end their own life, the person providing the advice would be guilty of this offence. If they needed help accessing certain drugs, whoever helped would be liable. There are good reasons why we have these laws in

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