1. Criminal Law
homework

2. R. v. Roach
What is your opinion of the appeal court’s finding that recklessness does not satisfy the requirements of s. 21 (1)(b)?
Since the highest form of mens rea is required under s. 21 (1)(b), there is reasonable doubt that Roach had the necessary mens rea for a conviction.
Check the explanation of knowledge, recklessness, and wilful blindness on pages 168 to 169. Suggest a defence that Roach could offer in the new trial to the accusation that he knowingly participated in the fraud and was wilfully blind to the consequences of his arrangement with Dube.
As a meat cutter, Roach had no experience in telemarketing and he trusted Dube’s business experience. Consequently he did not knowingly participate in the fraud. Moreover, his argument that he believed the funds would grow and that the larger prizes would eventually be available suggests there was no wilful blindness on Roach’s part.
As a juror would you accept Mr. Roach’s claim of innocence, or not? Explain.
If the defence establishes that there is reasonable doubt of Roach’s mens rea, a juror would be compelled to accept Roach’s claim of innocence

3. R. v. Canhoto What was Maria Canhoto’s actus reus?
Maria Canhoto’s actus reus was that she failed to come to her daughter’s aid during the exorcism, even though she heard her daughter screaming for her life. Maria also left the room during the exorcism and thereby demonstrated a wanton and reckless disregard for her daughter’s life and safety.
What was her mens rea?
Maria’s mens rea was that she knew or ought to have known that her child’s life was at risk.
Do you think the appeal would have been allowed if Maria had stayed in the adjacent room throughout the attempted exorcism? Explain.
The appeal would very likely still have been dismissed, even if Maria had stayed in the adjacent room throughout the exorcism. Even from the other room, Maria could tell from the tone of her daughter’s screaming that she was in grave danger. She had a duty to act to save her daughter’s life. Her failure to come to her daughter’s aid made her capable of criminal negligence under s. 219 of the Criminal Code.

4. Role of the Jury Page 172-174 or 264-266 & R. v. Petroangelo
1. What qualifications must a juror have? Do you think that any other qualifications should be required? Explain.
A juror must be
a Canadian citizen, except in the Northwest Territories
18 years of age or older
a resident of the province for at least one year

5. Role of the Jury
2. List three reasons why a person might be excused from jury duty.
A person may be exempted from jury duty for
health or religious reasons
the fear of financial hardship
having served on a jury within the past two years
3. What does it mean when a prospective juror is challenged for cause? What principle of fundamental justice is involved?
A prospective juror is challenged for cause when either the Crown or the defence thinks the person may be biased, may be physically incapable of serving as a juror, or has been convicted of a serious offence. The principle of fundamental justice involved is the right to a fair trial.
4. What is a peremptory challenge, and why is it an important right?
A peremptory challenge is the right of the Crown or defence counsel to exclude someone from a jury without providing a reason. It is important because it grants the accused some control over the adversarial process and against the powers of the state.

6. R. v. Pietroangelo
1. Why did Pietrangelo want to challenge for cause instead of making peremptory challenges?
Pietrangelo wanted to challenge for cause rather than make peremptory challenges because he thought potential jurors might be biased against him as a result of pre-trial publicity.
2. Given the pretrial publicity associated with this case, do you think it was possible to find 12 impartial jurors in the community where the alleged offence took place? Why or why not?
consider the size of the community and the extent of the pre-trial publicity.
3. How different might the outcome have been in the first trial if Pietrangelo had been represented by a lawyer? Explain.
consider that counsel may have been able to cite a rule of precedent to convince the trial judge to allow individual challenge for cause.

7. Starting a Police Investigation

8. Starting a police investigation
Page or #1 – 5
1. What three tasks must the police complete when they first arrive at a crime scene?
When police first arrive at a crime scene, they must
a) call an ambulance and assist injured people;
b) help eliminate any hazards that still pose a risk, such as fires or unexploded bombs; and
c) continue to search the crime scene for perpetrators even if witnesses say the perpetrators have left.
2. What two boundaries must the police establish at a crime scene?
the centre—the area in which the offence was actually committed
the perimeter—the areas surrounding the centre, where the offender may have been present or may have left evidence.
How do these boundaries help their investigation?
These boundaries help to establish the entry or escape routes used by the offender

9. Starting a police investigation
3. Provide an example of a piece of contaminated evidence and explain why it would hurt the Crown’s case against an accused.
An example of a piece of contaminated evidence would be the improper collection of dried blood-stains. If the officer sustained a cut or wound at the crime scene, and his or her own blood was mingled with that of the victim or perpetrator, then the evidence would be of no use to the serologists who must examine the substance. In this case the evidence would not be admissible in court, which could mean that the offender would be released.
4. Briefly explain why the police keep a log of their activities at a crime scene.
they investigate many crimes and need to keep them straight
they need to recall details without confusion when they testify in court, perhaps months later
5. Compare the roles played by a patrol officer and a criminal identification officer.
the patrol officer secures the crime scene and ensures that no evidence is lost or tampered with
the criminal identification officer searches the crime scene, examines it for physical evidence, gathers and analyzes evidence, and, if necessary, sends the evidence to the laboratory for analysis

10. Identifying & Collecting Evidence
Pg. 195 – 201 0r 193 – 200 # 1 – 6
1. Which type of evidence carries more weight in a court of law: physical evidence or a witness’s testimony? Explain why.
while it is not a rule, physical evidence often carries more weight in court
physical evidence is any object, impression, or body element that can be used to prove or disprove facts relating to an offence
a witness’s evidence may be less convincing than physical evidence because of any number of factors
if several months have passed between the time of the crime and the witness’s testimony in court, the witness may fail to remember relevant facts, such as what the accused was wearing, the time of day, and the exact sequence of events
a witness may also suffer from physical problems that affect the memory, such as an illness or advanced age
witnesses sometimes become confused when subjected to a demanding cross-examination
2. Using examples, distinguish between the class and individual characteristics of impressions.
Evidence is said to possess class characteristics when it can be associated with the general attributes of a group of possible sources such as all Nike size 11 basketball shoes. Evidence that can be traced to a single source because of its specific, unique features is said to possess individual characteristics. An example would be a particular random wear pattern at the heel and edges of a pair of Nike size 11 basketball shoes.

11. Identifying & Collecting Evidence
3. Explain how latent fingerprints can be lifted from a crime scene and entered as evidence.
Latent fingerprints can be lifted from a crime scene with the use of chemicals such as graphite iodine powder, and then photographed or lifted with transparent tape. A laser beam can also be used to illuminate the print. Once the prints are photographed, the developed photos can be entered as evidence.
4. What is the most common body substance found at a crime scene?
Blood is the most common body substance found at a crime scene
5. Briefly explain how the use of DNA profiling helps the police solve crimes.
DNA profiling helps the police solve crimes by matching the genetic make-up of the accused with the evidence he or she may have left on the victim (blood, semen, hair, and so on).
6. Why is the chain of custody for physical evidence so important to a police investigation?
The chain of custody, or the continuity of possession, must be established whenever evidence is presented in court as an exhibit. Adherence to standard procedures in recording the location of evidence, marking it for identification, and properly completing evidence submission forms for laboratory analysis are the best guarantee that the evidence has not been contaminated or tampered with between the time it was collected and the time it is presented in court.

12. R. v. McSorley - Assault
1. In the trial Judge’s eyes, what was the mens rea of assault in this case?
The mens rea of the assault was the intent to injure Brashear.
The Judge found that even though McSorley’s slashing of Brashear was the result of an instantaneous reaction, it was also intentional.
2. Do you think that Brashear was guilty of provoking McSorley to slash him? If so, would this provocation provide a legal excuse for McSorley’s action? Explain.
It does appear that Brashear was guilty of provocation because he taunted the Boston players with a “Hulk Hogan pose.”
This provocation, however, did not provide McSorley with the right to slash Brashear in the head so hard that he sustained a concussion.

13. R. v. McSorley - Assault
3. Suppose this incident had happened on the street instead of a hockey rink. One man attacks another with a stick and hits him hard enough to cause a severe concussion. With what level of assault would the attacker be charged? Would he likely be granted a discharge if found guilty? Why or why not?
The attacker would be charged with the second level of assault—assault with a weapon or causing bodily harm. This type of assault is defined as injuring a person in a way that has serious consequences for the person’s health or comfort.
A person attacking someone on the street in this fashion would not likely be granted a discharge, because of the seriousness of the offence.
4. Do you agree with the Judge’s decision? What impact do you think this decision will have on the sport of hockey? Give reasons for your answers.

14. R. v. Ewanchuk – Sexual Assault
How did the young woman in this case indicate that she did not consent to sexual touching?
The young woman said “No” when Ewanchuk’s hands approached her breasts and when he began to touch her sexually.
How did the accused show evidence of mens rea for sexual assault?
Ewanchuk showed evidence of mens rea for sexual assault by touching the young woman sexually and by continuing his advances even though she said “No.”
The trial Judge and the Court of Appeal both found the defendant not guilty, while the Supreme Court of Canada entered a conviction. With which Court do you agree? Explain why.

15. R. v. Taylor
How far over the legal limit was the defendant’s alcohol level?
Taylor showed readings of 160 and 170 milligrams of alcohol = 0.16 and 0.17 which is two times over the limit
What is the maximum penalty if an impaired driver kills someone?
Maximum penalty for drinking and driving causing death is 14 years imprisonment
What factors may have prompted the judge to double the sentence recommended by counsel? Explain why you agree or disagree with the judge’s sentence.

16. R. v. Nightingale – Impaired Driving
1. What is the maximum penalty for impaired driving causing death?
The maximum penalty for impaired driving causing death is life imprisonment.
2. Why might the Judge have given community service hours that included speaking engagements with young people?
The Judge included this aspect of the sentence so that others could learn from Nightingale’s mistake. Young people, who often think “it couldn’t happen to me,” might be inclined to relate to and listen to someone who seems to be like them. The hope is that young audiences will be discouraged from drinking and driving, and might think “it could happen to me.”
3. Do you agree with the sentence in this case? Why or why not?

17. Minds On…
Explain the responsibilities of each level of court – Provincial, Superior & Supreme
Provincial Court
They have the jurisdiction to hear summary conviction offences, less serious crimes that carry a lighter penalty, and certain indictable offences, more serious crimes that carry a heavier penalty.
Superior Court
They are the highest criminal and civil courts in the provinces and have a trial and appeal division.
Has jurisdiction in both criminal and civil matters
Supreme Court
highest appeals court in Canada, which also deals with constitutional questions referred to it by the Federal government

18. Minds On… What is duty counsel? Who is the Crown?
Duty counsel refers to a lawyer on duty in a courtroom or police station to give free legal advice to persons just arrested or brought before the court
The crown attorney or prosecutor is the lawyer representing the government. They are responsible for bringing forward credible evidence of a crime
What is the difference between direct and cross examination?
direct examination, where each witness is asked to tell what he or she observed about the crime.
The defence/prosecutor then cross-examines the witness, to test the accuracy of the evidence or to convince the jury that there are contradictions to the witnesses testimony.

19. Minds On…
Explain the two challenges that can be made from the defense or prosecutor when selecting a juror.
A challenge for cause, the right of the Crown or defence to exclude someone from a jury for a particular reason, can be used if they feel that the potential juror has already formed an opinion, cannot physically perform their duties or has been convicted of a serious offence. Each side has unlimited challenges for cause.
After a juror is accepted as suitable and impartial, the Crown or defence can still reject the juror by using a preemptory challenge, the right of the Crown or defence to exclude someone from a jury without providing a reason. 20 challenges for serious cases, 12 if the accused can be sentenced to more than five years and 4 if the sentence is less than five years.

20. Minds On… List and briefly explain the 12 step process of a trial.
The judge explains to the jury their role as the trier of facts
Crown’s opening statement
Crown examines witnesses
Motion for dismissal
Defence presents opening statement
Defence examines witnesses
Crown rebuts
Defence presents surrebuttal
Closing arguments
Charge to jury
Jury Deliberates
Verdict is read

21. Minds On… Explain the importance of the Charge to the Jury?
the judge gives a charge to the jury, the judge’s explanation to the jurors of how the law applies to the case before them. He advises the jurors on how to consider the evidence and how to return a verdict in accordance with the law. Must be very careful as the charge is often the basis for an appeal
List three grounds for objection and briefly explain each.
Under what circumstances may leading questions be asked? Give an example of one that would NOT be permitted. Why would the judge disallow?
During cross examination it is allowed only if it pertained to previous testimony. (You stated previously that you were home the night in question, is this correct?”)
Objection: “Objection your honour. ….

22. Minds On…
Why do you think expert testimony is important? Give one pro and one con.
Complete the handout – Raising Objections
Raising Objections - ANSWER
What are the different types of evidence that be can be used it court?
Direct, circumstantial, character, electronic surveillance, polygraph tests,

23. Minds On…
Explain the difference between expert and circumstantial evidence and provide an example of each.
Direct evidence – testimony by a witness to prove an alleged fact. (eyewitness)
Circumstantial evidence – indirect evidence that leads to a reasonable inference of the defendant’s guilt.
When is circumstantial evidence allowed?
admissible the defendant’s guilt must be a conclusion drawn from the evidence.

24. Minds On…
When is character evidence admissible? Why might it be used as testimony for the defence?
establishes the likelihood that the defendant is the type of person who either would or would not commit a certain offence.
The Crown is not allowed to attack the defendant’s character but the defence is allowed to show the defendant’s good character.
Crown can rebut this evidence by using the defendant’s past convictions.
Do you agree that polygraph tests should be inadmissible?
How many judges can hear appeals?
The appeal is usually heard by a panel of 3 to 5 judges

25. Sentencing

26. Page 315 #1 - 3 In your own words, list the six goals of sentencing.
Public protection: punishment intended to make people feel safe in society
Retribution: punishment intended to make an offender pay for his or her offence
Deterrence: punishment that is sufficiently severe to deter others from committing similar offences
Rehabilitation: punishment designed to treat offenders and educate/prepare them for re-entry into society
Restitution: punishment that requires offenders to pay for losses to victims and/or society
Denunciation: punishment intended to show offenders how repugnant their behaviour is to society

27. Under what circumstances might a judge prefer a punishment that involved specific deterrence over general deterrence
Specific deterrence is punishment that aims to discourage the individual offender from committing the same offence again. A judge may require a young person who was street racing and killed a pedestrian to speak about his or her crime on a specified number of occasions to high school students. This punishment is intended to discourage the offender from street racing in the future.
General deterrence is punishment designed to keep other people from committing similar offences. When people know the maximum sentence for killing someone while driving impaired is life in prison, they are discouraged from drinking and driving.

28. Indicate which sentencing goal is addressed in each of the following situations. Justify your answers and indicate whether any sentence meets more than one goal.
a) a court order requires an offender to take part in an anger management program
Rehabilitation—this program will help the offender to function better in society.
b) an offender receives a fine for polluting a creek
Deterrence—paying a fine discourages offenders from re-offending.
c) a person convicted of illegally copying a movie is required to research how royalty payments to artists work
Deterrence and rehabilitation—an offender will learn about the effects of such theft on retailers, on the movie industry, and on society as a whole.
d) a violent repeat offender is sentenced to 10 years in prison
Protection of the public and retribution—the Court seeks to keep a dangerous person from harming others and to pay a debt to society for the offences already committed.
e) an offender is required to restore a garden he vandalized
Restitution—an offender required to reimburse a store for stolen merchandise is repaying the merchant for the loss suffered.

29. Page 319 #1, 2 &4
Discuss the people a judge must consider when deciding on a sentence.
When deciding on a sentence, a judge must consider the offender, the victim, and society as a whole. The profile of the offender that appears in the pre-sentence report is important for determining the chances of rehabilitation and reintegration into society. The suffering of the victim must be taken into account, especially if the victim has suffered lasting physical or emotional damage. The needs of society as a whole must also be considered, especially in cases of repeat offenders who may pose a threat to the public.
How might a pre-sentence report help in determining a fair sentence?
A pre-sentence report may give the judge relevant background information about the offender. Knowledge of the offender’s family, friends, education, employment history, physical and mental health, social activities, and abilities will help the judge decide whether the offender is likely to re-offend or respond to rehabilitation programs.

30. Distinguish between aggravating and mitigating factors and provide three examples of each.
Aggravating factors are circumstances that may increase the severity of the sentence.
Examples of aggravating factors are • the crime was premeditated • the offender took a leadership role in committing the crime • the offence was a violent one
Mitigating factors are circumstances that may decrease the severity of the sentence.
Examples of mitigating factors are • the crime was an impulsive act • the crime was a first offence • the crime was relatively minor

31. Page 330 #1, 2, 4, 6-8 Identify and define two types of discharges.
An absolute discharge involves releasing a convicted offender and erasing the criminal record after one year.
A conditional discharge involves releasing a convicted offender under certain terms, and erasing the criminal record after three years if the terms are met.

32. a) Distinguish between a suspended and a conditional sentence.
A suspended sentence is a judgment that is not carried out, provided certain requirements are met.
A conditional sentence is a prison sentence of less than two years that the offender can serve in the community but with strict terms attached. These terms can include community service work or seeking therapy.
b) What is the difference between an absolute discharge and a suspended sentence?
With an absolute discharge, there are no conditions attached, and the charge is erased from the offender’s criminal record after one year.
With a suspended sentence the judge can attach certain requirements, such as good behaviour. At the end of the sentence term, the offender may still have a criminal record and be placed on probation.

33. Give two examples of how an offender could make restitution.
Financial compensation and community service are two examples of restitution.
What is meant by suspension of privilege? Provide an example of your own.
Suspension of privilege is a sentence that withholds a privilege for a specified period or, in some cases, for the offender’s lifetime. An example would be the suspension of a restaurant’s licence to serve alcohol in a situation where the establishment was found to be serving minors.
Why might defence counsel advise the accused to enter a plea bargain?
Defence counsel may advise the accused to enter a plea bargain in the hope of receiving a lighter sentence or even a suspended sentence.

34. 8. For each of the following scenarios, impose a sentence on the offender. Identify the guiding factor(s) in choosing the sentence. Remember that a sentence can include a combination of options.
After Hélène ended her relationship with Nick, he began harassing her. It started with annoying calls on her cellphone and escalated to threatening calls. Hélène reported Nick to police, and he was charged with criminal harassment. This was Nick’s first offence.
A sentence for Nick may include a suspended sentence and probation with the provision that he not associate with Hélène.

35. George attacked his son’s hockey coach and was charged with assault
George attacked his son’s hockey coach and was charged with assault. He had received a number of warnings about his aggressive behaviour at minor hockey games.
A sentence for George may include two years’ probation subject to terms such as keeping the peace, staying away from his son’s hockey games, demonstrating good behaviour, and participating in anger management classes. c

36. Gina is 20 years old. As she was leaving a clothing boutique, she was stopped and searched by police. Beneath her clothes, Gina had hidden merchandise from the store valued at $800. Police also found two marijuana cigarettes in her purse. Gina has a good job that pays well. This is her first offence.
A sentence for Gina may include a year’s probation subject to terms such as community service, making restitution to the storeowner, and participating in a drug assessment and treatment program. d

37. A 35-year-old woman is charged with abducting her three children in violation of a custody order. The mother has a history of drug and alcohol abuse.
A sentence for this woman may include a jail sentence and participation in a drug and alcohol treatment program. Upon release, she may be placed on probation with the provision that she not associate with her children until she can prove she is drug- and alcohol-free.