CRIMINAL LAW

1. CRIMINAL LAW

2. http://www.lawyers.ca/statutes/criminal_code_of_canada_assault.htmhttp://www.lawyers.ca/statutes/criminal_code_of_canada_assault.htm

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

4. Technical definition: • Whatever Parliament defines as a crime. • Any action, or omission of an action that is prohibited by law • Ex. Action - stealing something • Ex. Omission – not taking care of a baby.

5. 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) All the same: Crown prosecutor Crown attorney Crown Counsel

6. Prosecute: • pros·e·cute   /ˈprɒsɪˌkyut/ Show Spelled verb, -cut·ed, -cut·ing. –verb (used with object) 1. Law . a. to institute legal proceedings against (a person). b. to seek to enforce or obtain by legal process. c. to conduct criminal proceedings in court against. 2. to follow up or carry forward something undertaken or begun, usually to its completion: to prosecute a war. 3. to carry on or practice.

7. 3 main areas of Criminal law ‘coverage’ • Protection of People • Protection of Property • Protection of Morality

8. Changes to the Law (Chapter 1) Acts that were once considered criminal: • Sodomy (gay sex) • Abortion • Suicide • Prostitution?

9. Punishment • Should the punishment = the harm caused? (An eye for an eye?) • Proportionate response (like in Oakes test) • What is unacceptable punishment? • What is Capital punishment? • What is Corporal Punishment?

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

11. Testifying in Court • A person who has information that either party in the case believes to be useful may be called to give evidence in a civil or criminal trial. For example, someone might have witnessed the event, know something that is important to the case, or have a document key to the trial. People whose knowledge about a particular subject can help the court with answers to technical questions may also be called as an expert witness. Usually, though, people come forward voluntarily when they have information they believe is related to the case. If they do not, they can be summoned by “subpoena” to give evidence in court. A person subpoenaed must testify or face a penalty. • Witnesses’ testimony is taken under oath or by affirmation that they will tell the truth. Witnesses are required to answer all questions they are asked, unless the judge decides that a question is irrelevant or not necessary to the case. • Sitting on a jury or testifying in court gives citizens an opportunity to make sure Canada’s justice system is working as it should.

12. Subpoenas in Canada • A Canadian subpoena is a judicial order requiring a person to appear in court at a certain place and time in order to give evidence in a court proceeding. The person receiving the subpoena may have to take the stand and testify personally, or may be required to produce documents related to the court proceeding that are in his or her possession. • Judges, justices of the peace or in some circumstances, Canadian court clerks may issue subpoenas. Judges or justices of the peace must believe that the person receiving the subpoena can provide the court with 'material evidence'. This means that the evidence is required in order to make a determination in a court proceeding, or relates directly to the issues in dispute. • The witness usually receives the subpoena personally from a court officer. But it can also be left at the witness's home with anyone appearing to be at least sixteen years old. If the witness does not attend at court as required by the subpoena, the court may issue a warrant for his or her arrest. • If a witness shows up in court but refuses to testify, the presiding judge may order that the witness be jailed for contempt of court. • Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.

13. 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

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

15. Actus Reus & Mens Rea • Two components of most crimes. • Both must be proven beyond any reasonable doubt.

16. Actus Reus • The act. • The prohibited act must have been committed as described in the statue outlining the offence.

17. Mens Rea • The intent (or guilty mind) • Not only must the act have been committed, but it must be committed wilfully- with intent. • As opposed to by mistake or some other defence (insanity, mistake of facts)

18. A sample of the text in the Criminal Code 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

19. For class discussion: • 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.

20. A website with the Criminal code (CanLii) http://www.canlii.org/ca/sta/c-46/

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

22. The 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.”What did he mean?

23. For class discussion: What is onus? 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 of life today

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

25. But he had her consent, didn’t he? • Was it ‘vitiated by fraud’? ..was the consent weakened or debased by the fact that she was not informed that he was HIV positive? vi·ti·ate    ˈvɪʃ iˌeɪt/ Show Spelled[vish-ee-eyt] Show IPA –verb (used with object), -at·ed, -at·ing. 1. to impair the quality of; make faulty; spoil. 2. to impair or weaken the effectiveness of. 3. to debase; corrupt; pervert.

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

27. Offences and Defenses • An Offence is an act that violates 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.

28. Commit offence Gather basic evidence Charged Gather all evidence Trial Acquitted (Crown can appeal) Convicted (Accused can appeal) Sentencing (Accused or Crown can appeal) Free

29. Chapter : Criminal Offences Offences against: The Person Property Morality

30. Classification of Offences 1. Summary Conviction offence 2. Indictable Offence 3. Hybrid Offence

31. Summary Conviction Offence: less serious offences • Causing a disturbance in a public place • Loitering • Being in an illegal gaming house • Driving someone’s car without permission • (Generally) Trial cannot proceed if more than 6 months have passed between the time of the act and the start of trial proceedings. • Max penalty: 6 months and/or $2000.

32. Indictable Offences:more serious offences • Murder • Arson • Making/using counterfeit money • Forgery • No limit on time between act and laying of charges. • Once charged, trial should be within reasonable time (6 months) • Police have broader search powers when investigating indictable offence. • If facing 5+ years, may have Jury.

33. Hybrid • May be treated by the Crown as summary conviction or indictable. • Indictable until stated otherwise. • Examples: Theft under $1000 Mischief Calling false fire alarm Conspiring/attempting to commit an offence

34. Mitigating and Aggravating circumstances • Mitigating circumstances (is not a full defense) are factors that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the sentence, sometimes even the charge. 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. Example, you are caught shoplifting and it is the 7th time you have been caught in 3 years.

35. Offences against the person (people) • (Approximately 10% of all crimes reported. • Homicide • Murder (1st degree, 2nd degree) • Manslaughter • Infanticide • Counseling or aiding suicide • Assault • Sexual Assault

36. Assault • Intentionally using force against another person without consent, threatening someone, and displaying a weapon while interfering with their movements. • Shaking a fist may constitute assault! • Criminal negligence: a reckless individual.

37. Assault • (Simple) Assault (max 5 yrs) – like a hit, slap, push, or punch etc. 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. • Aggravated Assault (max 15 yrs) –Assault resulting in maiming or disfiguring permanently affecting victim.

38. 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

39. 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)

40. 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.

41. 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.

42. 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 attackSource: section 34 of the Criminal Code • you defend yourself from a clear and present danger withonly with as much force as is necessary to resist and you do not intend to cause death or grievous bodily harmSource: section 34 of the Criminal Code

43. 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.)

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

45. Sexual Assault • Sexual Assault (max 10 yrs) – non-consensual sexual touch (does not have to be violent) including rape (which is not always violent). • Sexual Assault Causing bodily harm (max 14yrs) – Sexual assault, and causing some bodily harm but not grievous. • Aggravated sexual assault (max life) – sexual assault and wounding, maiming or disfiguring. • (if a firearm is involved, there is a mandatory minimum 4 yrs)

46. Sexual Assault the Legal Perspective How does the law define a sexual assault? 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.

47. 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".

48. 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".

49. 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".

50. 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