Lecture 1B

Overview
Crime in Canada Appeals Trials Guilty Plea Charges Laid Crime Reported Crime Victimization
Cases that make it to the appeal stage set new common law precedents 25% of Canadians are victims of crime per year, of which only 31% report it to police. o Victim often knows perpetrator o Site of most violence is the home. Most crimes reported to police do not result in charges, most of those which are, are resolved without trial and found guilty o Of that less than 10% of cases go to trial o Acquittal only in 3% of criminal cases o Rarely appeals Cases that make it to the appeal stage set new common law precedents 1 in 10 offenders are a woman o 37% of women in custody are aboriginal

Criminal Process
Enact law: legislature makes conduct illegal Enforce law: only if there has been a breach o Exceptions: prostitution, drugs Decision: level of charge, what stream to go through Defense council: plea bargain: plead/bail o Preliminary Inquiry: more serious o Jury: most serious murder

Lecture 1B Trial Sentencing: prison $10 billion/year: o Police: 60% o Corrections: 25% o Court Processes: 9% o Legal Aid: 6%

Sources of Criminal Law

Constitution: including the charter o Most supreme law, over rules statutes Legislature: including criminal code; o Statute; parliamentary process that becomes law o Cannot violate charter Common: Laws made on appeal stage; judge made law Law based on precedent International: Universal declaration of human rights terrorism, war Law crimes, torture

Criminal Offences Enacted by federal parliament Offences under the criminal code: o Assault; protecting body o Theft: protecting property o Fire Arms / Drunk Driving: safety o Anti-Obscenity / Drug Possession: Good behaviours Why are some offences inherently wrong? o Drug trafficking: manipulation of others, no benefit to country, harms body Moral dimension: what are reasonable expectations? Prostitution Aims of criminal Code o Denouncement: you are bad o Punishment: making you pay for it - Fine; Imprisonment o Deterrence: have knowledge of what will happen o Risk Prevention: Collateral Damage - Prevent similar / side effects o Harm Prevention: Prevent Harm o Incapacitation: removing criminal from society o Rehabilitation: help people come back into society o Reparation: Victim gets something in return; movement towards money

Lecture 1B

Regulatory Offences
Offences regulated by federal, provincial, or municipalities. Usually under provincial jurisdiction Majority of Offences: parking tickets, speeding tickets, citation for drunk and disorderliness, health and safety regulations, environmental offences Purpose: deter/prevent risky behaviour, rather than punish No criminal record - to a certain extent Usually results in a fine Mostly applies to corporations cannot be incarcerated pay fine instead

Criminal Law and the Constitution

Only federal parliament can enact criminal laws o Provincial can regulate / punish Criminal law may be unconstitutional if it infringes on a right or freedom protected under the charter and cannot be justified under section 1

The Elements of Criminal Offences

Actus Reus: Act / omission that is prohibited by the legislation Mens Reus: The Fault element Both Actus Reus & Mens Reus must be present Crown must prove that the person was aware of the possibility that the outcome would occur and the accused did not have a relevant defense If crown provides the prohibited act and fault element beyond a reasonable doubt, and there is no defense, then the accused will be convicted

Fairness
Reflects principles of fundamental justice Sections 7-14 of the charter Substantive Fairness and Procedural Fairness Substantive Fairness: Section 7 in the Charter of Rights & Freedoms Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice o Criminal law / regulatory offences can be declared invalid by the courts if it infringes on a charter right. o Fault requirements should generally increase with the seriousness of the offence 3

Lecture 1B Procedural Fairness Section 8 in the Charter of Rights & Freedoms Everyone has a right to be secure against unreasonable search and seizure Section 9 in the Charter of Rights & Freedoms Everyone has the right to be arbitrarily detained or imprisoned Section 10 in the Charter of Rights & Freedoms Everyone has the right ton arrest or detention a) To be informed promptly of the reasons thereof; b) To retain and instruct council without delay and to be informed of that right; c) To have the validity of detention determined by way of habeas corpus and to be released if the detention is now lawful Section 11 in the Charter of Rights & Freedoms Any person charged with an offence has the right a) To be informed without unreasonable delay of the specific offence; b) To be tried within a reasonable time c) Not to be compelled to be a witness in proceedings against that person in respect of the offence d) To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal Crown has burden of proof Partial offences: intent to commit e) Not to be denied reasonable bail without just cause o Police and procedure must comply with accused charter rights or risk the accused seeking a charter remedy for violation of rights o Crown has burden of proof must prove accused guilty beyond a reasonable doubt: not absolute certainty o Presumption of innocence until proven guilty ensures benefit of reasonable doubt

Lecture 1B

Sentencing
Most people plead guilty Those who plead guilty go to sentencing without trial Trials usually end in convictions Judicial / Sentencing Discretion: judge plays the gate keeper, guided by general principles in criminal code and high maximum penalties o Mandatory minimal sentences: bare minimum requirements for jail term must be upheld by judge no recourse to the Charter Principles of Sentencing o Proportionality o Judges can go beyond Conditional Sentences o Serve in community o Unless sentence includes mandatory imprisonment Sentencing must be proportionate to the gravity of the offence / degree of responsibility