Chapter 6 The Nature of Crime

O U T L I N E Crime, Criminal Law, & the C.C.C. Elements of a Criminal Offence Parties to an Offence Types of Offences

Nature of Criminal Law Parliament decides what is a crime and passes laws to change the Criminal Code Criminal Law is under Federal Jurisdiction Criminal Code reflects the values of society

The Criminal Code Criminal Code is the main source of criminal law in Canada Other Criminal offences are listed in statutes passed by Parliament (Controlled Drugs and Substances Act) Describes offences that are considered crimes, as well as punishments for crime, and the procedures for remedy.

The Power to make Criminal law 1867 – Provinces gave jurisdiction over criminal law to the federal parliament to decide which actions were crimes and set punishments for crimes Quasi-Criminal Law – those laws passed by the provinces / territories / municipalities that are not considered part of criminal law Don’t deal with actual crimes Example: Highway Traffic Act, city bylaws Acts usually result in a fine

The Nature of Crime Law 531 - Chapter 6

Defining Crime & Criminal Offences Pgs. 139 - 142

Defining Crime A Crime is an act, omission of an act or state of being that is prohibited and punishable by federal statute.

Defining Crime Law Reform Commission of Canada states that 4 conditions must exist for an act/omission to be considered a crime: The act is considered wrong by society The acts must be prohibited by the criminal code of Canada 2. The act causes harm to society in general 3. The harm must be serious 4. The remedy must be handled by the criminal justice system.

Criminal Law Definition: the body of laws that prohibit and punish acts that injure people, property, and society as a whole. Protect people and property Maintain Order Preserve standards of Public Decency

Divisions of Law Criminal law deals with crimes considered against the community as a whole, while civil law deals with complaints between individuals.

Answer questions 1-7 on the top of page 143

Elements to a crime Pages 143 - 152

Intention to Commit the Act Criminal Equation To convict a person of a criminal offence in Canada, the Crown must usually prove that two elements existed at the time the offence was committed: The Act Itself Intention to Commit the Act Crime

Criminal Equation To convict a person of a criminal offence in Canada, the Crown must usually prove that two elements existed at the time the offence was committed: The Act Itself

ACTUS REUS – “The Guilty act” The Act Itself Definition: The voluntary action, omission, or state of being, that is forbidden by the criminal code.

ACTUS REUS – “The Guilty act” Definition: The voluntary action… that is forbidden by the criminal code. Examples of Voluntary Actions

ACTION!

Action!

ACTUS REUS – “The Guilty act” Definition: The voluntary omission… that is forbidden by the criminal code. Failing to Act Examples of Voluntary Omission

Omission!

ACTUS REUS – “The Guilty act” Definition: The voluntary state of being… that is forbidden by the criminal code. Planning to Act Examples of Voluntary State of Being

State of being

State of being

State of being

ACTUS REUS – “The Guilty act” Can you think of a situation in which the element of actus reus is uncertain or not there despite the act being committed? See Drug Case

Case: r. V. Macgillivray [1995] Pg. 144 Read the case description Answer question 1 related to the case

Case: r. V. Macgillivray [1995] ACTUS REUS Dangerous driving as defined by the Supreme Court Bow of the Boat was up too high He couldn’t see in front of him Driving too fast It did say he could look from the side, but he still didn’t even do so.

Father jailed in death of son left unsupervised Pg. 146 Read the case description Answer Questions 1-4

Father jailed in death of son left unsupervised Q1 – Omission? Failing to provide a child with the necessities of life. In this case, the child needed supervision needed for his safety. Q2 – Actus Reus? Shaw & Gibson have ben previously warned by child welfare workers that their children needed to be supervised.

Father jailed in death of son left unsupervised Q3 – Should the Driver be Responsible? Welfare worker had told parents to watch children outside Driver had no intentions to run over child He was not committing a guilty act at the time Q4 – Should Shaw get Jail time?

Intention to Commit the Act Criminal Equation To convict a person of a criminal offence in Canada, the Crown must usually prove that two elements existed at the time the offence was committed: Intention to Commit the Act

Mens rea – “the guilty mind” Definition: A deliberate intention to commit a wrongful act, with reckless disregard for the consequences. Child under 12 acted alone in beating death of boy, 6, RCMP say

Recap Four conditions which must exist for an act or omission to be considered a crime The act is considered wrong by society The act causes harm to society in general or to those who need protection The harm must be serious The remedy must be handled by the criminal court system   The main purpose of criminal laws are to Protect people and property Maintain order Preserve standards of public decency To convict a person of a criminal offence in Canada, the crown must usually prove two elements Actus reus – the guilty act Mens rea – the guilty mind

Intent Intent – the state of mind in which someone desires to carry out a wrongful action, knows what the results will be, and is reckless regarding the consequences. The CCC often uses the words wilfully or intentionally to signify intent. There are 2 kinds of intent in Canada: General and Specific Intent

General Intent – the desire to commit a wrongful act, with no ulterior motive or purpose. Eg. Mcneill punches Lilly because he’s angry and wants vent his anger physically. The crown must only show that McNeill did strike Lilly

Specific Intent – the desire to commit one wrongful act for the sake of accomplishing another Eg. If Lilly knocks out Hockin with intent to steal his wallet, he committed assault for the sake of accomplishing a theft. The crown must show that Lilly assaulted Hockin with the intent to steal his wallet

It is much more difficult to prove Specific Intent than general intent. Certain defences such as intoxication are more likely to succeed against specific intent offences. Motive – the reason a person commits a crime Intent is not the same as motive. Motive may be useful evidence in a trial, it is not one of the elements of the offence that the crown must prove for a conviction.

Knowledge In some cases the crown can establish mens rea by showing the accused had knowledge of certain facts. Knowledge – an awareness of certain facts that can be used to established mens rea. Eg. Eric had a fake idea and used it to identify himself to pass a check.   Knowledge can be used as a substitute for intent in a criminal hearing to prove mens rea.

Criminal Negligence Criminal Negligence – wanton or reckless disregard for the live and safety of others, sometimes causing serious injury or death.   The crown can establish that mens rea existed by proving that the accused showed criminal negligence. In other words the accused failed to take precautions that a reasonable person would take to avoid causing harm to another person. Eg. Leaving a loaded gun on the kitchen table with children playing nearby.

Recklessness Recklessness – Consciously taking an unjustifiable risk that a reasonable person would not take. The crown can establish that mens rea existed by proving that the accused demonstrated recklessness.eg. Driving 180km/hour in a school zone with a speed limit of 40 km/hour

Wilful Blindness Wilful Blindness – a deliberate closing of one’s mind to the possible consequences of ones actions. You are wilfully blind when you are aware of the need to make an inquiry but fail to do so because you do not want to know the truth. Eg. Someone pays you $500 to deliver a package without asking any questions.

Strict and Absolute Liability For some offences the Crown doesn’t need to prove mens rea for a conviction. These are often offences against regulatory laws, which are both provincial and federal statutes meant to protect the public welfare. Eg. Workplace safety, environmental laws, traffic offences etc. These offences do not require mens rea.

These can be grouped into two liability categories: Strict and Absolute Liability Strict Liability – offences that do not require mens rea but to which the accused can offer a defence of due diligence. Eg. Cavendish farms is charged with polluting a river from their waste disposal tanks leaking. If they prove they took reasonable precautions in making sure their tanks were safe, they can used the defence of due diligence. Due Diligence – the defence that the accused took every reasonable precaution to avoid committing a particular offence.

Absolute Liability offences offer no possible offence Absolute Liability offences offer no possible offence. The fact that the offence took place is the only evidence required to convict someone of an absolute liability offence. Eg. Driving without a license.  Absolute liability - offences that do not require mens rea and to which the accused can offer not defence. Because the accused cannot offer a defence to absolute liability crimes, the Supreme Court ruled they cannot be imprisoned for such an offence.

Mens Rea Intent General Specific Knowledge Criminal Negligence Recklessness Willful Blindness

Mens Rea Intent General Specific Knowledge Criminal Negligence Recklessness Willful Blindness

Mens rea - intent Defined as a state of mind in which… Someone desires to carry out a wrongful action Knows what the results will be And is reckless regarding the consequences.

Mens rea - intent General Intent: The desire to commit a wrongful act, with no ulterior motive or purpose. Examples

Mens rea - intent Specific Intent: The desire to commit a wrongful act for the sake of accomplishing another. Examples

Mens rea - intent Question What do you think are some differences between general and specific intent? Which do you think would be easier to prove?

CASE: r. v. Hebert [1989] Pg. 148 Read case description Answer questions 1-3

CASE: r. v. hebert [1989] Q1 – Perjury? Q2 – General or Specific? Supreme court identifies mens rea for perjury as a statement with the “intent to mislead” Q2 – General or Specific? A wrongful act was being committed for the sake of accomplishing another. False statements for the intention of misleading the court Q3 – If you were the judge? Need to hear evidence of the death threat If he could prove this, the he could be acquitted

Mens Rea Intent General Specific Knowledge Criminal Negligence Recklessness Willful Blindness

Mens rea - knowledge Definition: As an awareness of certain facts 3 Types: Criminal Negligence Recklessness Willful Blindness

Mens rea - knowledge Criminal Negligence Definition: accused failed, under certain circumstances, to take precautions that any reasonable person would take to avoid causing harm to another person. A reckless disregard for the lives for the lives and safety of others, sometimes causing serious injury or death Examples

Mens rea - knowledge Recklessness Definition: consciously taking an unjustifiable risk that a reasonable person would not take. Examples

Mens rea - knowledge Willful Blindness Definition: A deliberate closing of one’s mind to possible consequences of one’s actions. You are considered willfully blind when you are aware of the need to make inquiry but fail to do so because you do not wish to know the truth. Examples

Case: r. v. adey [2001] Pg. 149 Read case description Answer Question 2

Recap

Strict & Absolute Liability

Regulatory Laws For some less serious offences, the Crown does not have to establish mens rea to win a conviction. Regulatory Laws: federal or provincial statutes meant to protect the public welfare Environment protection Workplace safety Hunting and fishing regulations Traffic offences

Offences without a Mens Rea Continued Strict liability offences: The liability is said to be strict because the defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts criminal – no need to prove mens rea Therefore it is only necessary to prove the offence was committed Due diligence: defense used by the defendant (took care not to commit the offence or honestly believed in a mistaken set of facts) Absolute liability offences: Crown need only prove actus reus no possible defence (no act was taken to prevent) if the person committed actus reus, he or she is guilty, no matter what precautions were taken to avoid committing the offence (can’t use due diligence) law does not specify which regulatory offences are strict liability or absolute prison term for an absolute liability is unconstitutional

Offences without a Mens Rea Usually violations of federal or provincial regulations passed to protect the public (speeding) Regulatory offences Carry less penalties Don’t carry stigma associated with criminal convictions 2 Types Strict Liability Offences Absolute Liability offences Case: R.v. Wilson…. Page 111, read and answer questions1-4 Case: R.v. Memarzaheh… Page 111. read and answer questions 1-3

Regulatory Laws In writing these laws, legislators must include words such as wilfully or with intent if they wish to show that the crown must establish a mens rea. If those words are not present, mens rea does not have to be proven.

Strict Liability Definition: Offences that do not require mens rea, but to which the accused can offer the defence of due diligence. Due Diligence is the defence that the accused took every reasonable precaution to avoid committing a particular offence.

Strict Liability Acme Waste Disposal Company Example – Environmental Pollution Acme Waste Disposal Company Charged with polluting a river that runs close to its facility Lawyers defence was that they proved to have spent over 1 million dollars in last 5 years trying to stop it. Judge found that due diligence was proven

Driving without a license Absolute liability Definition: Offences that do not require mens rea and to which the accused can offer no defence. Crown establishes that offence took place and the accused was responsible for it. Examples Driving without a license speeding

Case Study: R. v. Kerster [2001] Pg 151 Read the entire case! Answer Questions 1-4

Case Study: R. v. Kerster [2001] Q1 Steps to prove Actus Reus Meeting in person with Heatherington to make final arrangements Bringing money for payment Going to place to meet child

Case Study: R. v. Kerster [2001] Q2 Steps to prove Mens Rea Intent Using a false name when e-mailing the detective Stating that he would be willing to pay for the services of a person under 18 years of age Described what he wanted to talk about

Case Study: R. v. Kerster [2001] Q3 Mens Rea or Actus Reus? Actus Reus Establish that there were more steps involved beyond preparation. Able to prove criminal attempt even though nothing happened.

Case Study: R. v. Kerster [2001] Q4 Is it right to do a “sting”? Morals vs. Legality Legally: the police have right to organize sting as long as it doesn't’t involve entrapment. As long as accused makes inquiry first Police are only following up… Morally: Social standards Serious, protect people and public order, causes harm to societies (particularly those who need help)

Involvement in a crime Pgs. 152 - 156

Introduction How does law divide blame among the various offenders in a single criminal case? This section will look at the different ways people can be part of a crime.

Perpetrator Definition: the person who actually commits the crime. When more than one person is directly involved in committing a crime, they are called “co-perpetrators”. Example of a situation involving a perpetrator or co-perpetrators:

For Example

Those people who are indirectly involved in committing a crime. s. 21 Parties to an offence Those people who are indirectly involved in committing a crime. s. 21

Aiding Definition: A criminal offence that involves helping a perpetrator commit a crime. Without physical assistance To aid the perpetrator, one does not have to be present when the offence is committed. Examples of Aiding:

For Example

abetting Definition: The crime of encouraging the perpetrator to commit an offence without actually providing physical assistance. Examples of Abetting:

For Example

Aiding & abetting Note that a person is not guilty of aiding or abetting just because he or she has knowledge of a crime or is present at the scene. Two things must be proven: The party must be aware that a criminal action was intended and must have committed some action that assisted the perpetrator.

Counseling Definition: A crime that involves advising, recommending, or persuading another person to commit a criminal offence. As with aiding, a person who counsels does not have to be at the the scene of the crime to be guilty. Examples of Counseling:

Accessory after the fact Definitions: someone who knowingly receives, comforts, or assists a perpetrator in escaping from the police. Examples of being an accessory after the fact:

For Example

Case: r. v. ford [2000] Pg. 154 Read Case Description Answer Questions 1-3

Case: r. v. ford [2000] Q1 Actus Reus of Counseling Murder Bringing up the idea of killing Bidwell and saying he wanted Doe to do it. Offering cash for him do to it Showing him where Bidwell lived and places he went. Showed photos of Bidwell’s apartment and escape routes Constantly provoked Doe to do it.

Case: r. v. ford [2000] Q2 Could Ford have been charged as a Co-Perp? He was not present when the crime was carried out. Therefore no.

Case: r. v. ford [2000] Q3 Should Ford receive a longer sentence? Aided Doe by providing information, a weapon, and other equipment Abetted Doe by encouraging him to commit the offence with cash and constantly provoking him to do it.

Party to common intention The shared responsibility among criminals for any additional offences that are committed in the course of a crime they originally intended to commit. Examples of Party to Common Intention:

For Example

Case: Judge fired for lying Pg. 155 Read Case Description Answer Questions 1-3

Case: Judge fired for lying Q1 – 3 Things Therrien Did… 1) Allowing them to hide in his Montreal apartment during the October Crisis 2) Obtaining materials to build a hideout for them, 3) Mailing three letters to newspapers containing articles supporting the outlawed FLQ

Case: Judge fired for lying Q2 – What party to an offence was Therrien? Accessory after the fact

Case: Judge fired for lying Q3 – Was it right to fire him? Probably the right decision He did lie when asked if he had ever been in trouble with the law. Standard of conduct society demands from a judge is something far above the average person.

Incomplete crimes Laws governing incomplete crimes. In some cases, there are exceptions to the presence of actus reus and mens rea Two major types of incomplete crimes: Attempt Conspiracy

attempt Definition: The Intention to commit a crime, even when the crime is not completed. Actus Reus  Guilty act begins the moment preparation turns into action. Mens Rea  established at the beginning of an illegal act. All the Crown has to do is prove that accused had the necessary intent and took some obvious steps towards committing a crime.

conspiracy Definition: An agreement between two or more people to carry out an illegal act, even if that act does not actually occur.