CRIMINAL CRIMINAL LAWLAW

Criminal lawmaking is the Criminal lawmaking is the

jurisdiction of the Federal jurisdiction of the Federal

government.government.

The general definition of a The general definition of a

crime is:crime is:

a wrongful act that must be a wrongful act that must be

controlled for the protection of controlled for the protection of

society as a whole.society as a whole.

The Criminal CodeThe Criminal Code Lists offences, defenses and Lists offences, defenses and penalties.penalties.

Judges must consider the Judges must consider the circumstances of the case.circumstances of the case.

3 main areas of Criminal law 3 main areas of Criminal law ‘coverage’‘coverage’

Protection of PeopleProtection of People

Protection of propertyProtection of property

Protection of MoralityProtection of Morality

Ex. AbortionEx. Abortion Abortion had been illegal in Canada for much of Abortion had been illegal in Canada for much of

the nineteenth and twentieth centuries, thus the nineteenth and twentieth centuries, thus forcing women to find dangerous alternative forcing women to find dangerous alternative methods. With growing pressure on the methods. With growing pressure on the government by women's groups, an amendment government by women's groups, an amendment to the Criminal Code in 1969 allowed abortions to the Criminal Code in 1969 allowed abortions in hospitals under restrictive circumstances. in hospitals under restrictive circumstances. Over time, however, this law has been subject Over time, however, this law has been subject to interpretation through court challenges.to interpretation through court challenges.

In 1988, the section of the Criminal Code In 1988, the section of the Criminal Code prohibiting abortion was declared prohibiting abortion was declared unconstitutional. Abortion is unregulated until unconstitutional. Abortion is unregulated until today (Oct 2009).today (Oct 2009).

Some crimes are not Some crimes are not specifically addressed in the specifically addressed in the Criminal Code.Criminal Code.

Ex. Knowingly Ex. Knowingly

transmitting transmitting HIVHIV

Criminal Code

PART VIII: OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

Aggravated sexual assault

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the

complainant.

(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 273; 1995, c. 39, s. 146

A website with the A website with the Criminal code (CanLii)Criminal code (CanLii)

http://www.canlii.org/ca/sta/c-http://www.canlii.org/ca/sta/c-46/46/

Elements of an Elements of an OffenceOffence

Criminal offences are made Criminal offences are made up of two elements:up of two elements:

1) A prohibited act1) A prohibited act

known as the known as the actus reusactus reus

2) A criminal intent2) A criminal intent

known as theknown as the mens reamens rea

To obtain a To obtain a convictionconviction, the , the crowncrown must prove, must prove,

beyond a reasonable beyond a reasonable doubtdoubt

that the accused is guilty that the accused is guilty of of bothboth elements. elements.

You have to do something You have to do something illegal and you had to illegal and you had to

have done it on purpose!have done it on purpose!

TerminologyTerminology ChargedCharged: ‘accused’-police have : ‘accused’-police have

enough evidence to send you to trial.enough evidence to send you to trial.

ConvictedConvicted: After a trial, you have been : After a trial, you have been found guilty of the offence you were found guilty of the offence you were charged with and now face sentencing.charged with and now face sentencing.

AcquittedAcquitted: You have been found not : You have been found not guilty and will face no consequences.guilty and will face no consequences.

TerminologyTerminology ObjectiveObjective: based on facts and : based on facts and

evidenceevidence

SubjectiveSubjective: based on opinion and less : based on opinion and less concrete (but still valid) evidence.concrete (but still valid) evidence.

Subjective analysis/Objective Subjective analysis/Objective analysis.analysis.

Beyond a reasonable doubtBeyond a reasonable doubt

The The accusedaccused is innocent until proven is innocent until proven guilty.guilty.

The Crown has to prove his/her guilt The Crown has to prove his/her guilt leaving no doubt or other possible leaving no doubt or other possible explanation.explanation.

The Crown has to The Crown has to disclosedisclose any any evidence they have against the evidence they have against the accused.accused.

ConsequencesConsequences

At the end of a criminal trial, if there At the end of a criminal trial, if there is a guilty verdict (a conviction), the is a guilty verdict (a conviction), the convicted will likely get a convicted will likely get a criminal criminal recordrecord and also may face: and also may face:

Jail timeJail time A fineA fine Community ServiceCommunity Service ProbationProbation

What about the victim of the crime?What about the victim of the crime?

They may launch a civil suit.They may launch a civil suit.

A civil case, under ‘tort’ law seeking A civil case, under ‘tort’ law seeking damages (usually money).damages (usually money).

Offences and DefensesOffences and Defenses OffencesOffences are acts that violate the law. A criminal offence is a are acts that violate the law. A criminal offence is a

violation of the Criminal Code. violation of the Criminal Code.

A A defensedefense is an explanation or excuse for your commission of is an explanation or excuse for your commission of an offence. If your defense is accepted, you will be acquitted. an offence. If your defense is accepted, you will be acquitted.

Mitigating circumstancesMitigating circumstances (weaker than defenses) are factorss (weaker than defenses) are factorss that reduce the seriousness of the offence or serve as partial that reduce the seriousness of the offence or serve as partial excuses. They generally reduce the charge or the sentence. excuses. They generally reduce the charge or the sentence.

For example you are charged with drinking and driving but you For example you are charged with drinking and driving but you have a perfect driving record and you volunteer at a shelter. have a perfect driving record and you volunteer at a shelter.

Aggravating circumstancesAggravating circumstances are factors that make the offence are factors that make the offence worse. They work against the accused. For example, you are worse. They work against the accused. For example, you are caught shoplifting and it is the 7caught shoplifting and it is the 7thth time you have been caught time you have been caught in 3 years.in 3 years.

AssaultAssault

Simple assault (max 5 yrs) – like a hit, slap Simple assault (max 5 yrs) – like a hit, slap or push that does not result in lasting bodily or push that does not result in lasting bodily harm. (not more than a bruise or scratch)harm. (not more than a bruise or scratch)

Assault causing bodily harm (max 10 yrs) – Assault causing bodily harm (max 10 yrs) – Assault resulting in harm such as broken Assault resulting in harm such as broken limb.limb.

Aggravated Assault (max 15 yrs) –Assault Aggravated Assault (max 15 yrs) –Assault resulting in maiming or disfiguring. resulting in maiming or disfiguring. (Permanently injuring the victim.) (Permanently injuring the victim.)

Sexual Assault (max 10 yrs.) – non-Sexual Assault (max 10 yrs.) – non-consensual sexual touch. (Does not have to consensual sexual touch. (Does not have to be violent)be violent)

Sexual Assault Causing bodily harm (max Sexual Assault Causing bodily harm (max 14yrs) – Sexual assault and causing bodily 14yrs) – Sexual assault and causing bodily harm.harm.

Aggravated sexual assault (max life) – Aggravated sexual assault (max life) – sexual assault and wounding, maiming or sexual assault and wounding, maiming or disfiguring. disfiguring. (if a firearm is involved, min 4 yrs)(if a firearm is involved, min 4 yrs)

Sexual Sexual AssaultAssault

Murder (see handout)Murder (see handout)

11stst degree degree

22ndnd degree degree

Manslaughter Manslaughter 22ndnd degree may be reduced to manslaughter degree may be reduced to manslaughter

if if provocationprovocation can be proven. can be proven.