A crime is a wrong against society The main purpose of criminal law is to protect society and maintain the peace The Criminal Law System Purposes of Mainstream Canadian Criminal Law maintain order ID: 692990
Download Presentation The PPT/PDF document "Criminal Law Review Criminal law is a sy..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Criminal LawSlide2
Review
Criminal law is a system that tries to balance the rights of society to be protected against the civil rights of the individual by the law
A crime is a wrong against society
The main purpose of criminal law is to protect society and maintain the peaceSlide3
The Criminal Law SystemSlide4
Purposes of Mainstream Canadian Criminal Law
maintain order
protect society
punish the guilty
prevent further crimeSlide5
Review: Alternative Justice
Systems
Traditional Aboriginal views of criminal law are significantly different from the mainstream Canadian legal system
Theirs is a
restorative,
rather than a punitive
process
Within this system it is the action of the person that is bad, and not the person
Those who offend are viewed as requiring
healing
Purposes include:
healing the person who has committed the offence
healing the relationship between the "victim" and the person who has committed the offence, and the whole communitySlide6
Grounds for
Action
Being accused of a crime can damage a person's reputation in the community and cause personal suffering
For this reason, the police cannot arrest a person unless there is good reason to believe that the person has committed a crime
This doesn't however, require absolute proof
Whether or not a crime has been committed will be decided in the trialSlide7
Action
The law recognizes that some crimes (such as murder) are a greater risk to society than others (such as shoplifting)
For this reason, there are three different procedures for making certain people appear at their trial
A person being charged with a less serious offence will usually be given a summons or an appearance notice that describes the charge and tells the accused person when and where to appear in court
A person accused of a more serious offence will be arrested
The Criminal Code describes every aspect of police action, from how evidence may be obtained to the actual forms that should be used
These procedures limit police power to that which is necessary to keep the public safeSlide8
Burden of
Proof
In a criminal trial, the accused is presumed to be innocent; it is up to the Crown to prove that the accused committed a crimeSlide9
Degree of
Proof
The degree of proof in a criminal case must be beyond a reasonable
doubt
Example: You come into the kitchen to find the once-full milk jug broken on the floor, but no spilt milk. Your cat is sleeping peacefully on the windowsill. Unless you have convincing evidence, such as milk on her whiskers, a witness to the crime, or paw prints on the milk jug, a judge and jury might say there is a possibility that your cat is innocent and some stray feline did the deed. Your cat's defense lawyer does not have to prove that the cat is innocent, only that the cat might be
innocent
It can be quite difficult to be certain that there is no doubt that the accused person committed a crimeSlide10
Did
Mrs.
Whiskers Do It?
If the cat in the story was on trial, and you were the defense lawyer, what would you have to do to defend your client?
Identify
and briefly discuss at least four reasons why your cat may be innocentSlide11
Findings
The findings are what a judge concludes after considering:
the details of the crime
statutes and case law
the
rights of the accused
the best interests of society
current social attitudes to this type of crime
the verdict of the jury (if there is one)Slide12
Findings
As a minimum, findings will include:
A verdict of guilty and a sentence
A verdict of not guilty, an acquittal, and no criminal record
When it comes to sentencing, a judge aims to select a punishment that fits the crime
The law provides guidelines for penalties, but there is still room for interpretation
If a sentence is seen as too severe, the defense counsel may appeal the decision to a higher court
If the sentence is seen as too lenient, the Crown may appealSlide13
Elements of a
Crime
For a crime to occur, two elements must be present:
The physical element
(actus
reus
)
The mental element
(
mens
rea)
Additionally, there are six things that must be covered when defining a crime:
the description of the wrongful act
(actus
reus
)
the state of mind accompanying the act
(
mens
rea)
a definition of key terms
the
defences
to the offence
the type of the offence
the maximum punishment for anyone found guilty of committing the offenceSlide14
Elements of a Crime
In our society we tend to feel that it is not right to punish someone for doing something, unless that person meant to do it or intended to do it
This is reflected in the criminal law, as before anyone can be convicted of a crime, the Crown must show not only
1
) that the prohibited act was done, but
2
) that the "guilty mind" was there as wellSlide15
Actus
Reus
This is a Latin term that roughly means, "prohibited act."
All of the "prohibited acts" are set out in the Criminal Code (or other federal act)
The Crown must prove that the particular action listed in the legislation occurred and that the accused is the one who did it
Example:
There is a section of the
Criminal Code
that makes it an indictable offence to discharge a firearm with the intent to wound any person. Mr. Weaver was hunting and was chased by a farmer's dog
...
then shot the dog in self
defence
. He was charged under the offense above.
Was he guilty? Explain.Slide16
Answer
The provincial court judge dismissed the complaint as not stating an offence; there was no
actus
reus
known in law (R. v. Weaver, Ontario, 1981)." The
actus
reus
was discharging a firearm with intent to wound a person, not a dog. Mr. Weaver did not commit that
actus
reus
.Slide17
Mens
Rea
A rough translation of this Latin phrase would be "guilty mind", and generally,
mens
rea
means intention
The Crown must prove this element before anyone can be convicted of a crime
If you desired certain consequences to follow your act, you have
mens
rea
Example:
You are walking along the street and the hooked handle of your umbrella accidentally catches on someone's purse and pulls it away from them
Have you committed actus
reus
? Explain.
Have
you committed
mens
rea? Explain
.Slide18
Mens
Rea
You have likely committed the
actus
reus
of theft (by depriving someone of their right in property) but you did not have the
mens
rea,
or the intention to do so. It was an accident.Slide19
Negligence
Mens
rea
can also be satisfied by recklessness or criminal negligence
If you act in a way that may cause harm, and you are reckless about whether it does or not, and you deliberately choose to keep acting that way, you may be found to have the necessary
mens
rea
for conviction
Generally, the
actus
reus
and the
mens
rea
must occur at the same time
Example:
"If a person killed another person by accident, but later admitted to being glad that the victim was dead, the killing remains an accident, not murder."Slide20
Review
Define
actus
reus
Define
mens
rea.
Which
area of law is responsible for criminal law?
A
young person wants to purchase some drugs and spends his money on a substance he believes to be cocaine. It turns out to be icing sugar. Is this an offence?Slide21
KEY
Actus
reus
is a Latin phrase meaning "a wrongful action."
Mens
rea
is a Latin phrase meaning "a guilty mind."
The federal government is responsible for criminal law.
There is no
act us
reus
present. Purchasing icing sugar is not against the law.Slide22
Criminal and Quasi-Criminal
Offences
While the federal government has jurisdiction (the power to pass and enforce laws) over criminal offences, the provincial government has jurisdiction over some areas, such as:
Some motor vehicle laws
Laws regarding alcohol
These laws appear in provincial statutes, not in federal statutes
There is a difference between criminal offences and quasi-criminal offencesSlide23
Examples
Federal government—deals with issues such as gun control and murder
Provincial government—deals with speed limits, impaired driving limits, and issues involving schools
Municipal government—deals with things such as smoking in public places and zoning laws
First Nations—Under the recommendations of the Aboriginal Justice Implementation Commission, First Nations and Metis communities would have legal systems parallel to those of all three levels. At this time, these recommendations have not been implemented.
Laws passed by the provinces or municipalities are not considered part of criminal law but rather are referred to as quasi-criminal law.Slide24
Defenses to Criminal ChargesSlide25
Defenses to Criminal Charges
The
Criminal Code
sets out which defences apply to particular crimes
An accused person has a defence to a criminal charge when there is a reason why he or she should not be held responsible for the crime
When a person pleads "not guilty" to a criminal charge, he or she is saying that there is a defence against the Crown's allegations
There are a total of 10 specific defences that can be usedSlide26
Presumption of Innocence
This is the simplest and most common defence is built into every criminal trial
A person cannot be held responsible for a crime unless the Crown proves, beyond a reasonable doubt, that the accused did everything he or she is accused of
The accused does not specifically have to deny anything; when they say "not guilty" they are presumed to have denied everything in the charge
The accused could sit through the whole trial without bringing any witnesses and without cross-examining anyone and still be acquitted
Sometimes, however, reasonable doubt requires the defense to raise a doubt
Usually this means cross-examining the Crown's witnesses, calling witnesses for the defence, and occasionally, the accused will give evidence
Almost always, the defence will present a story that is consistent with the accused's innocence
If the judge or jury has a reasonable doubt that, given both the prosecution's and defence's evidence, the accused might be innocent, the accused must be acquittedSlide27
Defense and Actus Reus
The Crown must prove each essential element of the crime
Sometimes, instead of denying the charge generally, the accused might try to prove certain facts that will raise a doubt about one particular element
Most of these defences concern the mental element of the crime, although one, the
defence of alibi
,
means that the accused denies that he or she was even at the scene of the crime and therefore could not have done the
actus
reusSlide28
Defense and Mens
Rea
Specific defences that involve denying that the accused had the
mens
rea
include:
was too drunk to know what he was doing
The accused was in a sleepwalking-like condition at the time
The accused mistakenly thought he was doing something which would have been perfectly legal if he had been doing itSlide29
General Defenses
All the defences that involve denying that the accused committed the elements of the offence are called general defences
Slide30
Special Defenses (Group 1)
Some defences, on the other hand, are like excuses
The accused admits to doing the act and intending to do it, but claims that there are special facts that should prevent her from being held responsible
The first group of these asserts that, although the accused did what was done, she was justified in doing so—that under the circumstances she was within her rights
Self-defence
defence of property
compulsion by threats or force of circumstances are examples of this kind of defenceSlide31
Special Defenses (Group 2)
This
group of special defences
exists because of public policy Slide32
Example:
if a person is persuaded by a police officer to commit a crime he would not otherwise commit, even if that person commits the crime with the necessary intention, he might be acquitted. The police are hired to prevent crime, not to encourage it. Therefore, they are discouraged from inciting people to commit crimes by courts refusing to convict people who are trapped by this sneaky method. Normally it is no defence to claim that someone talked you into committing the crime; this only means that the other person was a party to the offence by counselling. If the counsellor is a police officer, however, this defence, called the defence of
entrapment,
might apply. The defence of entrapment is well established in American courts, but it is not so certain in Canada.Slide33
Defenses to Criminal ChargesSlide34
Insanity
An accused found to be insane must be acquitted as the accused lacked the necessary mental capacity to commit a crime
This
defence
goes to negate the accused's
mens
rea
and is defined in the
Criminal Code,
section 16Slide35
S
ection 16
(1) No
person shall be convicted of an offence in respect of an act or omission on his part while that person was insane.
(2) For
the purposes of this section, a person is insane when the person is in a state of natural imbecility or has disease of the mind to an extent that renders the person incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
(3) A
person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused that person to believe in the existence of a state of things that, if it existed, would have justified or excused the act or omission of that person.
(4) Every
one shall, until the contrary is proved, be presumed to be and to have been sane. R.S., c. C-34, s. 16.Slide36
Insanity
If insanity is to operate as a
defence
to a criminal charge, it must be such as to render the accused incapable of understanding the nature and quality of his or her act, or from knowing that the act is wrong
If the accused raises the
defence
of insanity, it need not be proved beyond a reasonable doubt, but only on a balance of probabilities
If it is established, the accused is not set free, but is committed to a psychiatric hospital for an indeterminate period of time and is released only when sanity is recovered and the Lieutenant-Governor of the province signs a release order
The Supreme Court of Canada has held that it is up to the judge or jury to ultimately decide whether or not that condition amounts to legal insanitySlide37
Automatism
"Automatism is a term used to describe unconscious, involuntary
behaviour
, the state of a person who, though capable of action, is not conscious of what he is doing. It means an unconscious, involuntary act where the mind does not go with what is being done" (Supreme Court of Canada, 1980)Slide38
Automatism
If
for some reason a person's physical movements are not subject to the control of the mind, there is no voluntary action by that person and therefore no
actus
reus
of any offence
If, however, the causes of the automatic acts, or the automatism, result from something internal, such as a disease of the mind caused by
tumours
or venereal disease, the person is suffering from insane automatism, and if found not guilty for that reason would be confined to a psychiatric institution
A successful
defence
of non-insane automatism, however, would result in the accused being acquitted and set free, as there would be no reason to suspect that the person had not recovered from the trauma that caused the automatism
Conditions that have been accepted as causing a state of automatism include:
Sleepwalking
carbon monoxide poisoning
a physical blow
a strokeSlide39
Drunkenness
This is only a partial
defense
,
and may not be used to excuse an accused who voluntarily got into the intoxicated state and committed an offence for which no specific intent is required
Some crimes require specific intent, others require general intent
This defense
will
not
work in the case of general intent
Public policy is very much against people being excused because of drunkenness, and the
Criminal Code
states very specifically the degree of intent requiredSlide40
Example
If
the Crown is trying to establish assault with intent to steal (section 343 [c]), this
defence
has been used to say that perhaps the accused was too drunk to have been able to form the necessary intent to commit the crime
However, the crime of simple assault requires only a general intent—to apply force—and drunkenness cannot negate general intent
In an example such as this, the charge could be reduced to assault if drunkenness was successfully established
Often the
defence
of drunkenness is used to reduce murder to manslaughter
Murder requires proof that the accused meant to cause death or bodily harm
If the accused was too impaired by alcohol or a drug to have formed this intent, a conviction for manslaughter may result, as it does not require the specific intention to cause harmSlide41
Duress
The
defence
of duress or compulsion is set out in the Code at section 17.
17.
A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). R.S., c. C-34, s. 17; 1974-75-76, c. 105, s. 4.Slide42
What The Heck Does That Mean
?
If this
defence
is successful, you may still be found to have committed all of the necessary elements of an offence, but you are "excused" from responsibility for it
The threats must be of violence against a person; a threat against property is not sufficient to raise this excuse
The threats must be immediate; it is not good enough to say that bodily harm may have occurred at some later date
This
defence
is not available for a list of very violent crimes
This defense may provide an excuse for the actual commission of a crime, but it does not speak of excusing those who are parties to an offenceSlide43
Necessity
Compulsion by force of circumstances is a form of the Common Law
defence
of necessity
It is a rarely used, and a difficult one to establish.
The Supreme Court of Canada has said that it only applies in circumstances of imminent risk where the criminal action was taken to avoid a direct and immediate perilSlide44
Example
A family is stranded by the side of a highway during a winter blizzard. It is dark and their car will not start. They leave their vehicle and walk to a nearby farmhouse. Finding nobody home, they break into the house in order to save their lives. If there was no other alternative available to you, you may raise the
defence
of necessity to a charge of breaking and entering the house.Slide45
Entrapment
Entrapment basically involves the police persuading, harassing, or bribing a person to commit a crime, and then arresting the person for that offence
This is a new defense to Canada coming out of Charter challenges
The circumstances must be very clear and show that the accused was entrapped by a police scheme that was so outrageous and shocking as to bring the administration of justice into disrepute
In such a circumstance courts will dismiss the proceedings against the accused as an abuse of process, rather than acquitting the accused of the chargeSlide46
Mistake
This is a common law
defence
which recognizes that, if the mistake was an honest and reasonable belief in a certain set of facts, which, if they were true, would have made the accused's act an innocent oneSlide47
Example
You honestly but mistakenly believe that your spouse is dead and remarry someone else. Your spouse then turns up alive a month later and you are charged with the crime of bigamy (being married to more than one person at a time). You can be acquitted of this charge because of your mistake or ignorance of the facts.
It is only mistake or ignorance of the facts which is a
defence
, not mistake or ignorance of the lawSlide48
Alibi
Alibi is a specific
defence
that may be raised in a general denial of the offence
It means
elsewhere,
and when you raise it you are saying you were somewhere else at the time the offence was committed
You need not prove your alibi beyond a reasonable doubt; you merely have to raise a doubt in the Crown's case
In most cases credibility (believability) will be important in this type of
defence
It should be raised as soon as possible, not for the first time at the trial, as the judge or jury may regard that as suspiciousSlide49
Self-
Defence
The
Criminal Code
does allow you to use force to protect yourself, your property, or anyone under your protection, but the amount of force used must be "reasonable under the circumstances"
You may not provoke an attack and then attack the attacker, and
self-defence
may not be available to you if you could have avoided a fight
If you are in possession of property you may use force to prevent someone from removing it, but remember again,
it must not be more than is necessarySlide50
Double
Jeopardy
This is another of the
defences
based upon public policy
the Crown cannot "try again" for a conviction if it was unsuccessful the first time round and an accused was acquitted
For the same reason, once an accused has been convicted of a crime and has been punished for it, the accused may not be punished for it a second time
This
defence
is different from all of the others because instead of pleading "not guilty" the accused must plead
autre
fois
acquit
(formerly acquitted) or
autre
fois
convict
(formerly convicted), then the burden of proof then shifts to the accused to prove his or her plea
A dismissal of the charge because of a technical defect in the proceedings, a stay of proceedings, or a hung jury, do not qualify under this
defence
and will not get an acquittal
The charge may be laid again in those circumstancesSlide51
Conclusion
Some
defences
are based on public policy
Example: insanity—we do not want to punish someone for their actions if they are not capable of knowing right from wrong or cannot form the guilty intent required).
Some
defences
are based strictly upon the facts of the case and the individual accused.
Example: Alibi Slide52
Review
What does an examination of the
defences
available to criminal charges tell you about our system of criminal law? Do you feel that the system adequately protects the rights of an accused person?Slide53
Review
The
defence
of insanity eliminates what important element of a crime?
Why
might hospitalization in a mental institution be a harsher penalty than a jail sentence?
What
is
the major weakness of the
defence
of drunkenness?
Do you think the
defence
of drunkenness should be available at all?
What
does the law say regarding a threat against property with respect to the
defence
of duress
?
What does alibi mean?Slide54
KEY
Insanity eliminates the element of
mens
rea,
or guilty mind.
Psychiatric hospitalization is for an indeterminate time and the individual may spend more time there than if he or she had served a jail sentence.
Drunkenness is only a partial
defence
, to be used only in crimes that require a specific intent.
Some people feel that if you voluntarily get yourself into such an intoxicated state that you commit a crime, you should not be able to excuse yourself by pleading drunkenness. Others feel that because the criminal law requires the definite intention to commit the wrongful act, it would be wrong to convict someone who could not form that intention, no matter what the reason.
A threat against property is not a sufficient reason to use the
defence
of duress.
Alibi means that the accused can show that they were somewhere else when the offence was committed.Slide55
More Review
7. Heather
was involved in a traffic accident while driving to work, to which she had pleaded guilty in court. As a result, the Motor Vehicle Branch sent her a notice that her Driver
Licence
was suspended for six months. The notice did not arrive and she went on driving her car as usual. She was surprised and shocked when the police charged her with driving while under suspension. Does she have a
defence
?
Explain your answer in one or two
paragraphs
8.
Karen shot and wounded Jennifer, a cashier, during a robbery. Karen pleaded guilty to robbery and to the commission of an offence while armed. She was sentenced to six years in a penitentiary. After Karen had served one month, Jennifer died from her wound. Karen was then charged with murder. Is this double jeopardy? Why or why not?
Explain your answer in one or two paragraphs Slide56
Types of Offences and Parties to
CrimeSlide57
Introduction
There
are 24,000
offences under federal jurisdiction and 18,000 quasi-criminal offences under provincial jurisdiction.
You will need to memorize them all for your next test….
Well, maybe not
Instead, we'll take a general look at how the more serious crimes, at ways in which persons can be classified as parties to crimeSlide58
HomicideSlide59
What Does This Mean
?
To commit homicide is to cause the death of someone, but to do it accidentally, or in a way that is not culpable, is not a crime
Only culpable homicide is a crime and, according to section 222 (4), only murder, manslaughter, or infanticide can be culpable homicideSlide60
Murder
Generally, murder is committed when the victim dies as a result of the murderer's actions, and
the murderer intended to cause the victim's death; or
the murderer intended to hurt the victim, and knew that death might result, but didn't care; or
the murderer intended to kill or fatally wound someone else, but killed or fatally wounded the victim instead; or
the murderer, while preparing to commit a crime, knew or should have known that his or her actions might kill someone, but went ahead anyway.
This is all outlined in section 229 of the code: Culpable homicide is murderSlide61
First Degree vs. Second Degree
Murder
Subsection 231.(1): "Murder is first-degree murder or second
degree
murder."
Subsection 231.(7): "All murder that is not first-degree murder is second-degree murder."
Both types of murder carry a minimum, mandatory sentence of life imprisonment, but the difference lies in the amount of time that must be served before the murderer is eligible to apply for parole
On a conviction for first-degree murder, there is no eligibility for parole for twenty-five years, although after fifteen years, the inmate may apply to the court for a reduction of that time limit
For second-degree murder, there is parole eligibility after ten years in prisonSlide62
What is First-Degree Murder
?
A murder is first-degree murder when it is planned and deliberate; or
When the victim is a peace officer or prison worker acting in the course of his or her duties; or
When the death is caused during the hijacking of an aircraft, a sexual assault, a kidnapping and forcible confinement, or a hostage-taking
All other murders are second-degree murderSlide63
Manslaughter
Once it is established that the homicide was culpable, the circumstances showing the accused's state of mind and intent must be examined
If it cannot be shown that there was an intention to kill, or one of the other required intentions for murder (section 229), then the accused would be guilty of manslaughterSlide64
Manslaughter
Generally, manslaughter is committed when the victim dies as a result of the killer's actions and the killer was provoked by the victim's wrongful act or insult, and acted in the heat of passion while deprived of the power of self-control; or
The killer's actions were unlawful from which some harm would be a reasonably foreseeable result (e.g., pointing a firearm, and death results accidentally); or
the killer did something which showed reckless disregard for the lives of others, or did not fulfill a legal duty which showed reckless disregard for the lives of others (otherwise known as causing death by criminal negligence); or
the killer caused the victim, by threats or fear of violence, or by deception, to do something which caused his or her own death; or
where the victim was a child or sick person, and the killer scared him to deathSlide65
Manslaughter
"An act that is legal but done so carelessly that no regard for others is present can result in a conviction. An act that is illegal but is done with no intention to cause harm to any person can result in manslaughter if a person is killed by that act."
The maximum penalty for manslaughter is life imprisonmentSlide66
Infanticide
Section 233 creates the offence of infanticide, the third form of culpable homicide
It is a little-used section, and makes it an indictable offence when a mother causes the death of her newly born child when she has not recovered from the effects of giving birth and, as a result, her mind is disturbed
The maximum penalty is five years imprisonmentSlide67
Assaults
A person commits an assault when
without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
2. This
section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.Slide68
Assaults
3. For
the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
the application of force to the complainant or to a person other than the complainant;
threats or fear of the application of force to the complainant or to a person other than the complainant;
fraud; or the exercise of authority
4. Where
an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, 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. R.S., c. C-34, s. 244; 1974-7576, c.93, s.21; 1980-81-82-83, c. 125, s. 19.Slide69
Hybrid
Offense
Section 266 makes assault a hybrid offence and sets out the punishment
266. Every one who commits an assault is guilty of
an indictable offence and liable to imprisonment for a term not exceeding five years; or
an offence punishable on summary convictionSlide70
Specific Forms of
Assault
Anyone who uses a weapon or causes bodily harm to someone in committing an assault is guilty of an indictable offence and liable to ten years imprisonment;
Everyone who wounds, maims, disfigures, or endangers the life of the complainant commits aggravated assault and is liable to imprisonment for fourteen years
Everyone who commits a sexual assault commits a hybrid offence
Anyone who assaults a peace officer is guilty of a further hybrid offence
All of these specific offences have elements added to them which lift them out of the ordinary or "common" assault situation described in section 265, but all require the basic elements of assault to be proved as well as the special circumstancesSlide71
Proving
Assault
The Crown must show that the accused committed the act in question
(actus
reus
)
by applying or threatening force against another person, without that person's consent.
Example:
a prearranged fistfight behind a bar may not give rise to a charge of assault being laid against the fighters, as each would have the
defence
of consent. If, however, they knew that kicking or knives were not to be part of the fight, and one fighter uses them, he or she may be charged with assault, as that kind of fighting was not consented to. Further, section 265 (3) says that the consent cannot be gained by force, threats, fraud, or the exercise of authority.
HOWEVER, if the fight resulted in the death of one of the fighters…. See homicide and manslaughter above
The mental element must be proved as well before anyone can be convicted of this, as in all crimes. Slide72
Assault?
Someone
runs into you so that you lose your balance and you fall against someone else causing them to fall and break their arm,
Did you assault them?Slide73
Answer
Answer
: although the act of has been committed, you surely did not have the required mental state, or
mens
rea,
to be guilty of this offenceSlide74
Offences against Rights of
PropertySlide75
Theft
As well as protection from violence, another objective of criminal law is the protection of our property rights Slide76
Section 322 of the
Code
1. Every
one commits theft who fraudulently and without
colour
of right converts to his use or to the use of another person, anything whether animate or inanimate, with intent,
to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
to pledge it or deposit it as security;
to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
2. A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
3. A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.Slide77
Note
The
actus
reus
and the necessary intent
(
mens
rea)
are contained in the definition of this crime Slide78
Theft and Actus
Reus
The
act can be either "taking" or "converting"
"Taking" is clear, however, "converting" may not be
You convert something to your own use when you are in lawful possession of it, but you do not do what you are supposed to do with it…
Example:
if you are asked to return a book to the library, but you keep it for yourself. You have lawful possession of the book, but the theft occurs when you convert the book to your own use.Slide79
Theft and
Mens
Rea
The mental element of this offence contains two parts
First, the taking or converting must be fraudulent- You must know that you have no right to the goods in question
Second, the taking or converting must be done with the further intent to do one of the four things outlined in section 322 (1) (a)—(d). Slide80
Punishment
If
the value of the goods stolen is over $1000.00, the maximum penalty is 10 years imprisonment
If
the value of the goods is under $1000.00, the Crown can elect to proceed either by indictment (maximum two years), or by summary conviction (maximum six months and $1000.00 fine)Slide81
Robbery
Theft is the basic offence in the Code
Many other offences have theft as a part of them as well, including robbery
Generally speaking, robbery is an aggravated form of theft involving violence or the possibility of violence to the victim. Sections 343 and 344 follow.Slide82
343. Every one commits robbery who
:
steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
assaults any person with intent to steal from him; or
steals from any person while armed with an offensive weapon or imitation thereof. R.S., c. C-34, s. 302.
344
. Every one who commits robbery is guilty of an indictable offence and is liable to imprisonment for life.Slide83
Theft vs
Robbery
What might have started out as theft could turn out to be a robbery, if any violence or threat of violence is used
Example
: If a purse-snatcher easily grabs a purse away from the victim, there is no robbery, but only theft. However, if the victim refuses to release the purse, and the thief applies force to the victim to get the purse, this constitutes robbery. Further, if a mugger hits someone over the head in order to steal from him or her, and then discovers the stolen wallet has no money in it, it would still be considered to be a robbery, and not merely an assault
.Slide84
Breaking and
Entering
One of the most common offences the courts face is that of breaking and entering into a place and committing an indictable offence therein, or having the intent to commit an indictable offence therein.
Notice that there is no offence of merely breaking and entering into a place (although there may be criminal trespass, or other offences); section 348 requires a further intent or a commission of an offence, once you are inside the premises.Slide85
348. Every one who
:
breaks and enters a place with intent to commit an indictable offence therein,
breaks and enters a place and commits an indictable offence therein, or
breaks out of a place after committing an indictable offence therein, or
entering the place with intent to commit an indictable offence therein, is guilty of an indictable offence and liable
to imprisonment for life, if the offence is committed in relation to a dwelling-house, or
to imprisonment for a term not exceeding fourteen years, if the offence is committed in relation to a place other than a dwelling-house.Slide86
For the purposes of proceedings under this section, evidence that an accused
:
broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or
broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
committing an indictable offence therein, or
entering with intent to commit an indictable offence therein.Slide87
For the purposes of this section and section 351, "place"
means
a dwelling-house;
a building or structure or any part thereof, other than a dwelling-house;
a railway vehicle, a vessel, an aircraft, or a trailer; or
a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes. R.S., c. C-34, s. 306; 1972, c. 13, s. 24; R.S.C. 1985, c. 27.Slide88
What Does This Mean
?
The most common indictable offence that is intended after a break-in is usually theft, but other
indictable offences
such as assault may be intended, as well
Proving the accused's intent may be difficult for the Crown at a trial, so this is an example of a
"reverse onus"
situation.
The accused must show evidence that the necessary intent dis not exist.
Such evidence may be testimony that you broke in to retrieve your own belongings, or to seek shelter from the cold, for example, not that you intended to steal anythingSlide89
What is “Breaking
”?
For the purposes of this section, "breaking" has more than its ordinary meaning.
Section 321 says that "break" means:
(
a) to break any part, internal or external
(
b) to open anything that is used or intended to be used to close
or
to cover an internal or external opening"
Simply opening an unlocked door then would be "breaking" Slide90
What is “Entering
”?
Similarly, "entering" is accomplished when a person or "any part of his body or any part of an instrument that he uses is within anything that is being entered." Slide91
Punishment
For the purposes of sentencing, the place that is broken into (or out of) is important
If it is a
dwellinghouse
, the maximum penalty is life imprisonment
if a place other than a dwelling-house, it is 14 years
Why do you think Parliament felt that a harsher penalty was necessary for breaking into a person's home than into a business, for example
?Slide92
Possession of Property Obtained by
Crime
If there were no market for the sale of stolen property, would there be fewer thefts or "break and enters"? The law believes so
Receivers of stolen goods are therefore treated seriously by the courts Slide93
354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from:
the commission in Canada of an offence punishable by indictment; or
an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.Slide94
Punishment
355. Every one who commits an offence under section 354
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject matter of the offence is a testamentary instrument or the value of the subject matter of the offence
exceeds one thousand dollars;
or is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, or of an offence punishable on summary conviction, where the value of the subject matter of the offence
does not exceed one thousand dollars.
R.S., c. C-34, s. 313; 1972, c. 13, s. 28; 1974-75-76, s. 30.Slide95
Some Key Words for the
Crown
"in his possession"
"any property or thing"
"knowing"
“all or part ..."
"was obtained by . . ."
"commission ... of an offence punishable by indictment"Slide96
Proving Possession of Property Obtained by
Crime
The
Crown must prove
(
1) possession,
(
2) knowledge,
(
3) that the item was obtained by the
commission
of an
I
ndictable
offence. Slide97
Example 1:
If you bought the brand-new DVD player in a back alley for $10.00 and noticed that serial numbers were scratched off, it would do you no good to say that you didn't know it was stolen, and you didn't ask where the seller got it from. The court would say that you were reckless in not finding out; your intent to be in possession of a stolen DVD player would be presumed from your willful blindness about the origins of the DVD player.Slide98
Example
2
:
Another method for the Crown to prove knowledge is what is called the doctrine of recent possession (section 359). If the Crown can establish that the particular goods have been recently stolen, it is then up to the accused to come up with an explanation that could reasonably be true as to how he or she got them. If no such explanation is offered, the Crown can rely on the doctrine as having proved its case. Slide99
Review
Why were property crimes considered so serious in earlier ages?
At
present, what value of goods involved in a theft would result in it being tried as an
indictable offence?
What is the major difference between theft and robbery?
What
is "reverse onus?"
Why
is the mere possession of stolen property seen as such a serious crime?Slide100
KEY
People's rights in property were very important to them. As a result, many property crimes were punishable by death.
The value of goods involved in a theft, which would result in trial as an indictable offence, is $1000.00
Robbery is an aggravated form of theft involving violence or threats of violence.
"Reverse onus" is an application of the law that casts a burden upon the accused to prove something. Normally the Crown has the burden of proof.
The courts feel that if no one were willing to possess stolen property, there would be fewer thefts and robberies.Slide101
Drug OffencesSlide102
Drug
Offences
Parliament has created special legislation dealing with drugs due to the presumption that the abuse of drugs has a widespread and negative effect on society
The
Food and Drug Act
and the
Narcotic Control Act
create criminal offences regarding the misuse of drugsSlide103
Narcotics
The
Narcotic Control Act
includes a list identifying a number of substances as narcotics
It includes a large number of substances, but the most common ones are:
the opium poppy (including opium, codeine, morphine, and heroin)
coca (including coca leaves and cocaine)
cannabis (including hashish and marijuana)- stay tuned on this group, as legislation will likely change relatively soon
methadols
(synthetic opioids)
benzazocines
(tranquilizers)
It is an offence to possess or traffic in narcotics without lawful authority (usually a medical prescription).Slide104
Possession
Section
3
Except as authorized by this Act or the Regulations, no person shall have a narcotic in his possession.
Every person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both and, for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year or to both; or on conviction on
indictment to imprisonment for a term not exceeding seven years. R.S., c. N-1, s. 3; 1984, c. 40, s. 79.Slide105
Possession
According
to this section then, all the Crown must prove to establish a conviction
is
that the accused had the narcotic in his or her possession; and
that the substance was, in fact, a
narcotic
What
, however, constitutes possession?
A person has anything in possession when he has it in his personal possession or knowingly has it in the actual possession or custody of another person; or
has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of themSlide106
What Does This Mean
?
Handling constitutes possession
However, you do not have to be in actual personal possession of a thing to have legal (or illegal) possession of it
Example:
where two or more persons are sharing a marijuana cigarette, all of them are deemed to have possession of it
"no person shall knowingly or willfully have a narcotic in his possession."
Notice that
mens
rea, or intent, is requiredSlide107
Trafficking
Section 4.
No person shall traffic in a narcotic or any substance represented or held out by the person to be a narcotic.
No person shall have in his possession any narcotic for the purpose of trafficking.
Every
who
contravenes subsection (1) or (2) is guilty of an
indictable
offence and liable to imprisonment for life.Slide108
Trafficking
"traffic" means
to manufacture, sell, give, administer, transport, send, deliver, or distribute, or
to offer to do anything referred to in paragraph (a) otherwise than under the authority of this Act or the Regulations.Slide109
Does Trafficking Mean Selling
?
Trafficking includes selling, however, simply giving or delivering a narcotic to someone is trafficking
Purchasing a narcotic is not trafficking, however, that would qualify as possession
The maximum penalty for trafficking in narcotics is life imprisonmentSlide110
Other Narcotics
Offences
Section 5 of the Act makes it an offence to "import" or "export" a narcotic into or out of Canada
This refers to taking it across the Canadian border
The maximum penalty for this is life imprisonment Slide111
Controlled and Restricted
Drugs
The
Food and Drug Act
contains provisions dealing with drugs, as well
Parts I
and II
deal with regulating the manufacture, advertising, sale, et cetera, of "legal" drugs, food, and cosmetics
Part III
deals with Controlled Drugs
Part IV deals with Restricted DrugsSlide112
Controlled
Drugs
The
list of controlled drugs includes the drugs in the Amphetamine and Barbiturate categories of mood-altering drugs
It is not an offence to be in possession of these drugs, it is, however, an offence to traffic in these drugs, or to be in possession of them for the purpose of trafficking
"Possession" has the same meaning as with narcotics
,
but "trafficking" does not
Section 38 of the
Food and Drug Act
says:
'Traffic' means to manufacture, sell, export from or import into Canada, transport or deliver, otherwise than under the authority of this Part or the regulations
This definition does not prohibit giving, and it includes importing and exporting
If the Crown elects to proceed by way of summary conviction, the maximum penalty is 18 months imprisonment
If the Crown chooses to proceed by indictment, the maximum penalty is 10 yearsSlide113
Restricted Drugs
This is the second class of drugs that are recognized in the
Food and Drug
They include all hallucinogenic drugs (except alcohol), such as LSD, MDA, DET, DMT, and MMDA.
These drugs are usually manufactured, and so their numbers are always changing, and the schedules listing them do get updated
They cannot legally be in a person's possession without a prescription, so possession is an offense
Trafficking and possession for the purpose of trafficking are also offences with the description of trafficking be the same as with controlled drugs
If the Crown elects to proceed by way of summary conviction, the maximum penalty is 18 months imprisonment
If the Crown chooses to proceed by indictment, the maximum penalty is 10 yearsSlide114
What’s with the Different Maximum Penalties
?
Parliament created these maximum penalties, so, you can see that it thinks narcotics are much more dangerous drugs than those listed as Controlled or Restricted in the Food and Drug Act
Again, stay tuned to how cannabis fits into this mix as our new federal government takes powerSlide115
Review
What two special acts deal with the
What
constitutes "possession" and "trafficking?" How does "possession for the purpose of criminal law" differ from "possession" as we understand it in everyday speech
?
How did reverse onus operate with respect to drug trafficking prior to 1986?
How
was the reverse onus provision affected in 1986
?
What is the difference between controlled and restricted drugs?
What
does decriminalization with respect to some drugs mean?
How
has the crime of marijuana possession changed over the years?Slide116
KEY
1. The
Food and Drug Act
and the
Narcotic Control Act
create criminal offences regarding the misuse of drugs.
Answers
are found in the appropriate sections of the
Criminal Code
quoted in this lesson.
The everyday use of the word "possession" is mentioned in the Code, but if you read on you will see that it goes on to describe something more than merely having physical possession.
3. Prior
to 1986, when an accused was found guilty of possession, he or she had to offer evidence
that
the possession was not for the purpose of trafficking.
4. In
1986, the Supreme Court of Canada declared the reverse onus provision contrary to the Charter and therefore unconstitutional. It offended against the presumption of innocence.
5. Controlled
drugs can legally be in a person's possession but it is illegal to traffic in them. Restricted drugs cannot legally be in a person's possession without a prescription. Restricted drugs are manufactured drugs.
6. Decriminalization
is to take out from the jurisdiction of the
Criminal Code.
7. The
judiciary has acted to treat marijuana possession as a much less serious crime in recent years and rarely is a person imprisoned for its use in a first-time conviction.Slide117
Criminal Procedure before and after
ArrestSlide118
Criminal Procedure before and after
Arrest
In Manitoba, criminal investigation is the responsibility of the RCMP or, in larger communities, the municipal police.
Criminal procedure is important because if procedures are not carried out correctly, an accused may be found not guilty based on the fact that the procedure was illegal or a new trial may be ordered by a higher courtSlide119
Evidence
There are three types of evidence that may be used in a criminal case:
direct evidence
circumstantial evidence
material objects and documentsSlide120
Evidence
During an investigation the police will collect as much evidence as they can:
To be certain that they arrest the right person
have enough evidence to convict the person of the charge in court
During their evidence collection, police must keep in mind what constitutes:
admissible evidence in court
the proper procedures for collecting evidence, as evidence obtained through an illegal search may not be allowed in courtSlide121
Direct Evidence:
Witnesses
The most powerful evidence in a courtroom is the direct testimony of a witness who has factual knowledge relating to the offence
Often this is a person who was present during the offence but not a party to itSlide122
Direct Evidence: Expert
Witnesses
Sometimes the police will obtain the help of an expert witness to answer technical questions relating to a case
Example
: an accountant may be called in to examine the books of a company which claims an employee has been stealing, or a ballistics expert may be called in to compare bullets found at the scene of the crime with a weapon found at a suspect's home
Experts can state opinions, whereas
a
regular witness can only testify as to what they actually witnessed
The Defense can call experts as well to refute the Crown’s evidenceSlide123
Circumstantial
Evidence
Circumstantial evidence is the tantalizing clue that suggests what went on but doesn't actually prove anything
Circumstantial evidence is allowed in a trial, but it is not given as heavy a weight as direct evidenceSlide124
Material Objects and Documents as Evidence.
Material objects and documents can be very useful to support the testimony of a regular witness: “Exhibit A”
Example: a police officer will often be asked to testify that a particular object was found at the scene of a crime. Expert witnesses may also be asked to confirm the relevance of an object to a particular crime
Material evidence must be collected very carefully
Today's forensic lab has sophisticated tools to analyze everything from paint chips to DNASlide125
Making an
Arrest
The police may make an arrest only if they have reasonable grounds to believe that the suspect has committed an offence
This process can be very quick, or can take yearsSlide126
Getting the Accused to
Court
The
Criminal Code
contains detailed procedural laws concerning ways of compelling the accused to appear in court, and the
Charter of Rights and Freedoms
gives more general laws concerning the rights of an arrested person
The permitted procedures vary depending on whether the offence is classed as:
summary conviction
indictable
hybrid
Why? This is designed to give the police the power to act quickly in a serious situation, but limits their powers in less serious situationsSlide127
The Responsibilities of an Arrested
Person
Whether you have committed an offence or not, the best advice to anyone arrested by the police is to cooperateSlide128
Section 129 of the
Criminal Code
clearly states that every citizen has the responsibility to assist police officers in their duties. Everyone who:
resists or willfully obstructs a public officer or peace officer in the execution of his or her duty or any person lawfully acting in aid of such an officer;
omits, without reasonable excuse, to assist a public officer or police officer in the execution of his or her duty in arresting a person in preserving the peace, after having reasonable notice that he or she is required to do so;
resists or willfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure
;
is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years, or (b) an offence punishable on summary convictionSlide129
The Responsibilities of an Arrested Person
If you have committed an offence, you will only make matters worse for yourself if you resist arrest or cause difficulties with the investigation.
You may receive additional charges or a longer sentence, or
both
When the case comes to trial, the judge and jury are certainly going to be more inclined to return a guilty verdict if you resisted arrestSlide130
The Right to Remain
Silent
Cooperation, however, doesn't mean you have to incriminate yourself
The law protects people from acting unwisely without legal counsel through the right to remain silentSlide131
Pre-Trial
Release
The courts are very busy, and it may be several months between when a person is arrested and when that person comes to trial
Our laws say that the accused should not be held in jail unless she or he poses a threat to society, or has been found guilty and sentenced to a jail term as punishment
This means that one of the first things that happens after an arrest is an assessment of whether or not the person should be released until the trial dateSlide132
The
Victim
A criminal case is between the Crown and the accused
A criminal trial, unlike a civil trial, does not usually result in a victim's being awarded compensation for any injuries suffered
However, the victim may be called as a witness—for some people this is further trauma after already suffering through a bad experienceSlide133
Review
Who
is responsible for criminal investigation in Manitoba?
What
are the three types of evidence used in a criminal case?
What
is the most powerful evidence in a courtroom?
What
do the police need to make an arrest?
Under
what circumstances may a person be held in jail?Slide134
Key
In Manitoba, criminal investigation is the responsibility of the RCMP or, in larger communities, the municipal police.
Three types of evidence used in a criminal case are direct evidence, circumstantial evidence, and material objects and documents.
The most powerful evidence in a courtroom is direct evidence: a witness.
To make an arrest, the police need reasonable grounds to believe that the suspect has committed an offence.
Our laws say that the accused should not be held in jail unless she or he poses a threat to society, or has been found guilty and sentenced to a jail term as punishment.Slide135
Trial ProcedureSlide136
Trial Procedure
Courtroom participants must follow procedures during a trial
Once the trail begins the work of the police is mostly complete, and the accused enters the world of lawyers and judges Slide137Slide138Slide139
The
Stages of a
Trial
A trial is a controlled argument between the Crown and the counsel for
the
defense
The stages of a trial are designed to:
protect the rights of a person accused of a crime
ensure that each side of the case has a fair chance to present information
The stages of a criminal trial are similar for indictable and summary conviction offences, no matter what court tries the case
Depending on the seriousness and complexity of a case, a trial may take several hours or several weeksSlide140
Appeals from a Summary Conviction
Either the Crown or the accused can appeal the decision of a Provincial Judge on a summary conviction offence
There are two ways of appealing:
The Crown and the accused can go into Queen's Bench and have the Queen's Bench judge review the evidence
The Provincial Judge may write out a summary of the facts of the case and a question to be answered. This summary goes to the Court of Appeal, which decides whether the accused can be convicted on the facts the Provincial Judge set outSlide141
Appeals from a Summary Conviction
If the accused or the Crown believes that the Queen's Bench judge has misunderstood or misapplied the law, there is a further appeal from Queen's Bench to the Court of AppealSlide142
Appeals from an Indictable Offence
A person convicted of an indictable offence appeals directly to the Court of Appeal
If s/he believes that the trial judge applied the law wrongly, s/he has the right to appeal
If s/he is appealing the sentence or claiming that the trial judge misjudged the facts, s/he must have permission from the court, i.e., "leave to appeal."
The Crown can appeal a sentence or a question of the application of the law if the accused was acquittedSlide143
Court of Appeal
In a hearing of an appeal, the Court of Appeal usually consists of three judges
The person who is challenging the earlier decision, called the appellant, reviews the evidence and explains why s/he thinks the earlier decision is wrong
The judges may question this
Then the other person, called the respondent, argues and speaks
The Court does not usually give a decision right away, it may take months
New evidence may not usually be brought in at the appeal stageSlide144
Decisions of the Court of Appeal
It may decide that the original judge was right
It may think that s/he was wrong, in which case the accused may either be released or sent back for another trial
It may change the sentence, and make it harsher or lighterSlide145
Appeals to the Supreme Court of Canada
Decisions of the Court of Appeal can only be appealed to the Supreme Court of Canada
If the judges in the Court of Appeal disagreed on their decision about the application of the law in an indictable offence, then the accused or the Crown may appeal to the Supreme Court without asking for permission
Neither is leave to appeal required if there was an acquittal at the trial but the Court of Appeal changed it to a conviction
In all other cases, the Court must give permission, and the appeal must be based on a question of law
The Supreme Court can consist of nine, seven, or five judges sitting at once
In most respects it is similar to the Court of AppealSlide146
Rights of the Accused
The 2 most influential civil rights for the accused are:
the presumption of innocence
the requirement that the Crown prove guilt beyond a reasonable doubtSlide147
The Role of Counsel
A lawyer has 2 responsibilities:
to act as an officer of the court and follow all correct legal procedures
to act on the client's behalf
In a criminal Crown counsel has additional responsibilities…Slide148
Tactics
The presentation of evidence during a criminal trial requires a lot of planning
Each lawyer has to decide:
what evidence to present
what order of presentation will build the best case
There are two strategies for winning an argument that are well known to debaters:
It is easier to tear down an argument than build one up
The burden of proof in a criminal trial is with the Crown. The Crown must build up the argument against the accused; the
defence
need only raise doubt. Advantage: accused
The person who speaks last is most likely to be rememberedSlide149
Questions
There are rules about what types of questions may be asked during the different stages of a trial.
During the first part of the trial when the Crown presents its case (the examination-in-chief) the Crown counsel may not ask a leading question (a questions that suggests and answer) unless it is a matter not in dispute
Example1
: "What did you observe that night as you entered the pub?" is an allowable question
Example 2
:"Did the accused start the fight before or after you entered the pub?" is a leading question—it assumes the accused started the fightSlide150
Cross Examination
During a cross-examination, however, the
defence
may ask leading questions
This is allowed because the court assumes the witness is biased in
favour
of the Crown
When the
defence
presents its case, the same rules apply
The
defence
may not ask leading questions of
witnesses
, but the Crown may
The rules about questioning techniques during a trial are described in the
Canada Evidence Act.
This Act also describes admissible evidence.Slide151
Crown Counsel
The Crown counsel must present the Crown's case, and also ensure that she or he acts in the best interests of society
This can be tricky
What if the Crown counsel hears about a piece of evidence that is in the accused's
favour
?
In the cause of fairness the Crown must make sure the information is included as one of the facts of the case
This doesn't mean, however, that the Crown has to emphasize this information during the trial (for example, by calling a witness to describe it)Slide152
Crown Counsel
Here are some of the other things the Crown must do to protect the interests of society:
determine the charge
decide whom to charge and when
decide what level of penalty to ask for
consider the possible benefits of plea bargaining
decide whether or not to bring in expert witnessesSlide153
The Counsel for the Defence
It's the
defence
counsel's job to cast doubt on the argument built by the Crown
How far should that go?
What if the
defence
counsel believes her or his client is guilty?
A lawyer is free not to take a case, but once she or he does, the lawyer must remember that the judge and jury alone will decide guilt—not the lawyer
No matter what the client has done, the
defence
counsel must make certain every point of law in the client's
favour
is brought forward at the trial
As with the Crown counsel, the counsel for the
defence
has to plan a strategy for the caseSlide154
Strategic Considerations for the Defense
whether a judge alone or judge and jury would be best (where there is a choice)
whether or not to ask the accused to testify (the accused has the right not to testify)
if expert witnesses would help
if plea bargaining would get the accused the lowest possible penalty
whether or not to ask for a motion of dismissal after hearing the Crown's caseSlide155
Limits
Example
: if the accused has freely admitted guilt, the lawyer cannot suggest another person is guilty or construct a false alibi
All the defence counsel can do under these circumstances is point out that another explanation (other than the guilt of the accused) could be possibleSlide156
Time and Money
The judicial system is not perfect
The two most common complaints are:
It is slow
It is expensiveSlide157
The Plea-Bargaining Process
Plea bargaining is a sort of short cut through the judicial system
Before the arraignment (where the charges are formally read in court, and the defense enters a plea), the
defence
and Crown counsels may meet and reach an agreement
The accused can plead guilty in exchange for the Crown reducing the penalty or charges
If a guilty plea is entered, the trial goes straight to sentencingSlide158
Why Plea Bargaining?
In a serious criminal case this can save thousands of dollars of government expenses (paid for by citizens through their taxes)
It also saves the accused thousands of dollars in legal fees
Plea bargaining also saves many days of court time, freeing the courts to deal with more complex cases that require the full investigation of a judge and jury
This frees up the whole judicial systemSlide159
Common Plea Bargains
a guilty plea to some charges would result in other charges being dropped
a guilty plea to a lesser charge in return for a more serious charge being dropped
a guilty plea in exchange for the Crown recommending a lighter penalty
The
judge does
not participate in the bargaining process and is not
obliged
to follow the sentencing suggestions made by the Crown
The system works, however, because judges know about the plea-bargaining process and generally follow alongSlide160
Potential Problems
The
defence
lawyer may guess incorrectly about the verdict a jury would reach and the accused could end up with a criminal record needlessly
If the Crown counsel agrees to press a lesser charge, a person guilty of a serious offence may not be punished in the way society would prefer
Habitual criminals may learn to use this process to their advantage
The judge may not follow the Crown's suggestions—then the accused would have lost out in the deal
The Office of the Attorney General could appeal a decision—again, the accused loses in the deal
Probably the greatest complaint brought against plea-bargaining, however, is that the process has never been formally described in law and is therefore open to individual interpretationSlide161
Review
At the preliminary hearing the judge decides:
whether or not the court has the jurisdiction to try the case
whether
or not the Crown has a solid enough case
2. A
jury is never used for:
summary conviction offences
indictable offences
3
. Appeals are requested by:
the Crown, if it disagrees with the acquittal or the sentence
the defence, if it disagrees with the sentence or conviction
either of the aboveSlide162
Review
4. Why
is a preliminary hearing useful for the
defence
even if the case goes ahead
?
5.
Do you think that plea-bargaining is fair? Do the advantages outweigh the disadvantages? Use examples to back up your point.Slide163
Key
1. (b
)
2. (a)
3. (c
)
4. A
preliminary hearing is useful to the
defence
so that they can see what the crown will most likely use to present as evidence so that they can prepare themselves with a better
defence
.