5Actus ReusCan refer to a specific action or failure to act (eg. failure to provide necessities of life to child)Must be voluntary, a criminal offence will not take place if the accused has no control over actions(eg. Heart attack causes a driver to strike and kill a pedestrian would not be held criminally liable)
6Kenneth Parks CaseKenneth Parks, a 23-year-old Toronto man with a wife and infant daughter, was suffering from severe insomnia caused by joblessness and gambling debts. Early in the morning of May 23, 1987 he arose, got in his car and drove 23 kilometers to his in-laws' home. He stabbed to death his mother-in-law, whom he loved and who had once referred to him as "a gentle giant." Parks also assaulted his father in law, who survived the attack. He then drove to the police and said "I think I have killed some people my hands," only then realizing he had severely cut his own hands. Under police arrest he was taken to the hospital where he underwent repair of several flexor tendons of both hands.
7Kenneth Parks Cont’dBecause he could not remember anything about the murder and assault, had no motive for the crime whatsoever, and did have a history of sleepwalking, his team of defense experts (psychiatrists, a psychologist, a neurologist and a sleep specialist) concluded Ken Parks was 'asleep' when he committed the crime, and therefore unaware of his actions. To quote from a medical review of the case,"the legal defense was, therefore, one of homicide during noninsane automatism as part of a presumed episode of somnambulism...the defendant did not have any preexisting "disease of the mind" within the meaning of... the Canadian Criminal Code. There was no evidence for psychosis or other mental pathology. Moreover, it was believed that the clustering of such a number of triggering factors was extremely unlikely to occur again, so that the possibility of recurrence of sleepwalking with aggression was considered extremely remote.“Parks' sleepwalking defense proved successful and on May 25, 1988, the jury rendered a verdict of not guilty. Subsequently Parks was also acquitted of the attempted murder of his father-in-law. The government appealed the decision and in 1992 the Canadian Supreme Court upheld the acquittals
8Mens ReaCrown must prove beyond a reasonable doubt that the defendant carried out guilty act with criminal intentIntent: having knowledge, being reckless, or willfully blind to the consequences of the actGeneral intent Defendant meant to commit a crimeSpecific intent also intended to commit a specific indictable offenseEg. Purse was taken and intention was to not give backMotive: Reasons for committing a crime not necessary to prove guilt
9Liability Strict Liability: Some crimes do not require mens rea due diligence must be proven insteadDue Diligence: Doing what a reasonable person would do to avoid personal injury or damagesIe. Health and safety issues (restaurants, parental negligence)Absolute Liability: defendant responsible for actions regardless of intent or neglect
10Types of Offences The nature of the offence determines: Which court has jurisdiction to hear casePowers of police to arrestAccused’s right to be released before trialType of trial receivedOffence types: summary, indictable, hybrid
11Summary Conviction Least serious Held at Lower courts of Ontario Court of JusticeNo right to jury, judge aloneMax penalty of $2,000 and/or 6 months in jailNotice to appear in court, not typically “arrested”Lawyer may represent accusedVery few appear in Criminal CodeEg. Causing public disturbance, loitering, open alcohol in publicDo not need to provide fingerprints
12Indictable OffencesLess serious offences appear in front of provincial court judgeMore serious (eg murder) must be tried in front of judge and juryAccused may have choice of superior/ provincial court judge and with/without juryAccused must show up in person to courtNo limit on how much time can elapse between act and arrest, can be charged years after an eventOnce arrested, must be tried within reasonable timeEg. Murder, Robbery, KidnappingFingerprints are required
13Hybrid Offences Also known as dual-procedure offences Can be tried as either summary or indictableCrown chooses depending on circumstances of incidentEg. Impaired driving, assault, theft under $5,000, failing to provide necessities of lifeMost offences in Criminal Code are hybrid
14Police are able to fingerprint those who are charged with indictable offences. Police often fingerprint those charged with petty hybrid offences in order to obtain as many fingerprints for police databanks as possible. These fingerprints can be used to identify persons in future crimes. Should police be able to fingerprint those who are charged with hybrid offences? Is this a violation of the accused’s rights? Justify your answer.
15ActivitiesRead up on the pre-trial Criminal Investigation process found on course websiteFingerprinting and DNA evidence are often treated as absolutes. What problems can exist when finding fingerprints or other physical evidence that can cast doubt on the evidence?Dr. Charles Smith, a renowned pathologist, testified in numerous court cases in Ontario. Research the findings in two of the doctor’s cases and discuss the impact expert witness testimony can have on a trial. What happens when the expert witness is wrong? What impact does this have on the entire judicial system?evidence/article562711/?page=allDo plea bargains serve the best interests of the public if criminals receive lesser sentences? Justify your answer.
17Evidence Can you think of an example of: Similar Fact Evidence Opinion EvidenceHearsay EvidenceCharacter EvidenceCircumstantial EvidenceDirect Evidence
18Statements and Confessions RIGHTS OF THE ACCUSEDCharter rightsConfessions rule
19What’s the difference between a statement and a confession? Statement: Any verbal communication that mightimplicate a suspect’s involvement in a crime. (Saying, “I always hated that guy!” or “I wasn’t even there that night!” when it is not public knowledge that the crime took place at night.)Confession: A full admission of all material facts thatare necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accused’s guilt.
20Right to Remain SilentEstablished under the Charter of Rights and Freedoms,*there is no specific wording saying a right to remain silent but can be inferred in the following:Legal Rights, section 11(c)s. 11. Any person charged with an offence has the right:c) not to be compelled to be a witness in proceedingsagainst that person in respect of the offences. 7. “the right to life, liberty, and security of the person.”
21The Right to Remain Silent is Not Iron Clad! In November of 2007, the Supreme Court ruled 5-4 against the appeal from Jagrup Singh of his 2002 conviction for second-degree murder. The case revolved around the question of whether police breached Singh's right to remain silent when they persisted in questioning him about a shooting, even though he repeatedly made it clear that he didn't want to talk.Justice Louise Charron wrote in her majority opinion:“It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police.”In other words, a citizen can exercise his right to remain silent, but the state can try to change that citizen’s mind!
22The Confessions RuleEstablished in English case law, the definitive statement of this rule of law came in Ibrahim v. The King,  A.C. 599 (P.C.):It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
23Twin Goals of the Confessions Rule: i. Protecting rights of accusedii. without unduly limiting society's ability to investigate and solve crimes
24Canadian Confessions Rule The Canadian confessions rule requires the Crown to prove beyond a reasonable doubt that any statement by an accused to a person in authority was made voluntarily before the statement may be used for any purpose at trial.This rule was reinforced by the Supreme Court in R. v.Oickle, 2000.
25How does the Confessions Rule differs from Charter rights? The confessions rule and the Charter rights differ in three respects:1. The confessions rule has a broader scope of application than the Charter.The confessions rule applies whenever a person in authority questions a suspect.However, s. 10 of the Charter, for example, applies only on “arrest or detention.”
26How does the Confessions Rule differs from Charter rights? 2. The burden and standard of proof is different.Under the confessions rule the burden is on theprosecution to show beyond a reasonable doubt thatthe confession was voluntary.However, under the Charter the burden is on theaccused to show, on a balance of probabilities, that aviolation of the defendant’s constitutional rights hasoccurred.
27How does the Confessions Rule differs from Charter rights? 3. The remedies are different.A violation of the confessions rule always warrants exclusion of the confession.However, a violation of a Charter right warrantsexclusion only if the admitting evidence would bringthe administration of justice into disrepute.
28R. v. OickleRichard Oickle was under investigation by police for a series of fires. He voluntarily underwent a polygraph test. The police told him he had failed and began to question him. He eventually confessed to starting the fires. Oickle was told he was under arrest and brought to the police station for further questioning. He was put in a cell near 3am, around 9 hours after his confession. The police talked to him again at 6am asking him to provide a re-enactment, which he did.
29R. v. Oickle THE DECISIONS At trial he was convicted of arson. The Court of Appeal found that the confession was inadmissible and overturned the conviction.Supreme Court found confession admissableThough Charter rights remain in force for confessions made while in custody, the common law rule still applies in all circumstances.The majority outlined factors to determine whether a confession is voluntary.
30Factors To Determine if Confession is Admissable 1) the court must consider whether the police made any threats or promises.2) the court must look for oppression. That is, where there is distasteful or inhumane conduct that would amount to an involuntary confession.3) the court must consider whether the suspect has an operating mind. The suspect is sufficiently aware of what he or she is saying and who they are saying it to.4) the court can consider the degree of police trickery. While trickery in general is allowed it cannot go so far as to "shock the community"