Chapter 4 – Introduction to
Criminal Law
Criminal law deals with wrongs committed
against society (the disturbance of safety in
society).
Thus, even though an individual is a crime victim, society (in the form of the criminal
justice system) prosecutes and punishes the offender.
Let’s think about it…
How do we distinguish between criminal and civil law if crimes
are committed between individuals? Let’s say Ethan attacks
Jake. He throws the first punch and hits Jake repeatedly.
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Would it make a difference if Ethan had been in severe distress? i.e. failed an
important test, fired from job, broken up with girlfriend, provoked by Jake by
name calling?
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When does a conflict between two person become a criminal offence?
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Prosecute - to
initiate and carry out
a legal action
Criminal code –
main source of
criminal law in
Canada. Describes
what acts are
considered criminal
offences and
punishments for the
crimes.
Criminal offence –
an action, omission,
or state of being that
is considered a crime,
as defined in the
Criminal Code or
other criminal
statute.
Because an offence, even between individuals, is a threat to the safety of society, the police
and Crown Attorney can still go ahead and prosecute despite the victim not wanting to
testify and wanting to drop the charges.
PART A: What is a crime?
Four components:
1. The actions of behavior of the person must be considered immoral (wrong) by most
Canadians.
2. The person’s actions must cause harm to society and any individual victims.
3. The harm caused by the person’s actions must be serious.
4. The person must be punished by the criminal justice system for his or her
Criminalize – to
actions.
make a behavior a
criminal offence
in the Criminal
Code or other
Criminal Code supposed to represent what Canadians want.
criminal statute
June 15, 2006, street racing turned made criminal law. Two
new sections specific to street racing added to Criminal Code:
section 249.2, criminal negligence causing death, and
section 249.3, criminal negligence causing bodily harm. Maximum
penalty of 14 years in prison if someone is injured. For killing someone,
up to life imprisonment.
CASE IN POINT
Decriminalize –
to make a
behaviour that
was illegal
punishable only
by fines
Legalize – to
make an act
completely legal
by removing it
from the Criminal
Code or other
criminal statute
PART B: Immoral Behaviour
The Criminal Code reflects what actions the government, and often the majority of
Canadians, consider to be immoral behaviour. Some actions are immoral but not
criminal.
Legal, Illegal, ad Criminal Behaviour
Legal
Illegal
Criminal
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Behaviour that some people consider immoral, such as smoking, is not necessarily
illegal (although it is illegal to purchase tobacco if you are 18 years of age or less).
PART C: Justice
Greek philosopher Place (427 BCE to 347 BCE) wrote that justice is
fairness. The Law Reform Commission of Canada defines fairness in the
criminal justice system as procedural justice.
Why is Lady Justice blindfolded?
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procedural justice –
fairness in the processes
that resolve disputes.
impartiality – a
principle that judicial
decisions should be
based on objective
criteria and be free
from bias or conflicts or
interest
To achieve justice, the criminal justice system must reflect:
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Fairness:
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Efficiency:
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Clarity:
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Restraint:
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Accountability:
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Participation:
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Protection:
PART D: The Power to Make Criminal Law
Criminal law is enacted by a democratically elected federal
Parliament and therefore criminal offences are treated the
same across Canada.
Although written and amended by the federal Parliament,
Supreme Court still has a major influence on criminal law .
Power of Canada to made laws outlined in s.91 of the
Constitution Act, 1982.
What is outlined in s. 92 of the Constitution Act?
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enact – to pass a proposed
law into legislation
amend – to change existing
legislation (laws)
PART E: Canadian Charter of Rights and Freedoms
The second half of the Canadian Constitution is the Charter of Rights and Freedoms.
The Criminal Code restrictions must not infringe upon a citizen’s legal rights as
defined in the Charter.
Can you think of an example of this, where dealing with criminal activity would
be in violation of the Charter of Rights and Freedoms? Be specific, with
reference to section(s) of the Charter.
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Limits, Duties, and Rights of Individuals
The Criminal Code
restricts what an
individual can do (steal,
assault someone,
smoke marijuana, and
so on).
The Criminal Code identifies specific
duties that an individual must do. If an
individual fails to carry out these
specific duties (for example, by failing to
care for a newborn baby), he or she is
criminally responsible.
RIGHT
The Charter states what an
individual is free to do (the right to
liberty, the right not to be arbitrarily
detained, and so on).
Sometimes, the limits and duties set out by the Criminal Code can conflict with
an individual’s Charter rights. If too much, the courts may rule that the law is
unconstitutional.
Did You Know?
Canada’s first Criminal Code was
enacted in 1892. Read the
following excerpts from the first
Criminal Code, and reflect on
how attitudes have changed:
“Whenever whipping may be
awarded for any offence … the
number of strokes shall be
specified in the sentence and the
instrument to be used for
whipping shall be a cat-o’-ninetails.”
“In all cases where an
offender is sentenced to death,
the sentence shall be that he be
hanged by the neck until he is
dead.”
PART F: Summary Conviction and Indictable Offences
Maximum penalty
summary conviction
offence – a minor criminal
offence with less severe
punishments, which is
usually tried soon after the
charge is laid (summarily)
without a preliminary
hearing or jury
indictable offence – a
serious criminal offence
with a severe penalty,
proceeding by way of a
formal court document
called an indictment
hybrid offence – a criminal
offence proceeding by way
of a summary conviction or
an indictable offence; the
Crown decides which way to
proceed
Did You Know?
The terms “felonies” and
“misdemeanours” from American
TV shows are not used in
Canada but might be used to
describe “indictable offences” or
“summary convictions”,
respectively.
PART G: Elements of a Criminal Offence
Actus non facit reum nisi mens sit rea
“the act will not make a person guilty unless the mind is also guilty”
You cannot commit a crime unknowingly or by accident. The Crown must prove that a
criminal act occurred – actus reus (external, voluntary act meaning “wrongful deed”) and
that the accused had a criminal intention – the mens rea (internal act meaning “guilty
mind”).
If the Crown cannot prove both of these elements beyond a reasonable doubt, the
accused will be acquitted and set free.
*** Identity of the accused is part of actus reus. If the Crown cannot prove, beyond a
reasonable doubt, that the accused was the one who actually committed the crime, then
the Crown cannot prove the actus reus.
CASE IN POINT
…. A look at R. v. Parks, 1992 CanLII 78 (S.C.C.)
…. Jade is arrested at the airport with several balloons filled with
cocaine that she swallowed. She tells the judge that she thought
it was baking soda and this is the way she likes to transport it.
CASE IN POINT
How would the court be able to prove intent or knowledge based on this information?
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Intention the state of the mind of a person who commits an action deliberately
and on purpose.
Intentional
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Unintentional
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Criminal State of Mind the accused person knew he/she was doing something
illegal.
Did You Know?
Criminal state of mind
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Willful Blindness the act of deliberately choosing to ignore
If a husband sets a fire as part of
an insurance fraud scheme, and
does not know that his wife was
in the building, he would still be
guilty of first-degree murder
because he was committing an
indictable offence at the time.
certain facts or information.
“Turning a blind eye” ____________________________________________________
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Recklessness a state of acting carelessly without regard for the consequences of one’s
actions.
Disregard for results of action _________________________________________________
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Criminal Negligence wanton and reckless disregard for the lives and safety of other
people
Science experiment in restaurant kitchen __________________________________________
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Drinking and driving or speeding __________________________________________
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CASE IN POINT
… A look at R. v. Williams, 2003 SCC 41 (CanLII)
Knowledge knowledge of certain facts
Using a revoked or cancelled credit card __________________________________________
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Motive the reason for committing a certain act. Proving motive does not = guilt.
Motive tied to crime __________________________________________________________
Motive but not tied to crime
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Attempt an act done with the intent to commit a criminal offence but without success
Jade and the drugs
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Any others?
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Conspiracy an agreement between two or more people to
commit an unlawful act, whether the individuals carry out of the
crime or not. All people in the conspiracy must be serious. Jokes
or threats are not considered conspiracy.
Plans to break and enter
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Murder
Did You Know?
The law considers some people
to be incapable of forming the
intent necessary to commit a
crime. Examples include people
suffering from some forms of
mental illness and children
under the age of 12.
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Anti-terrorism Act:
Someone who knowingly takes in a terrorist, takes part in terrorism, or is an
accomplice to terrorism, commits an indictable offence and could receive up to 10
years of imprisonment. Facilitating a terrorist act could get someone up to 14
years. Convicted leaders of terrorist acts can receive up to life imprisonment.
PART H: Parties to an Offence
Urging someone to steal makes you just as guilty as the person
who steals.
Onlookers who merely witness a criminal act are not guilty of
aiding or abetting. However, if onlookers do anything that
could be seen as urging or inciting a criminal act, they could be
guilty of abetting.
aiding – assisting someone
to commit a criminal offence
abetting – encouraging or
urging another person to
commit a crime
Justin and Cole – taking a wallet from gym changeroom
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R. v. Goodine, 1993 CanLII 5379 (NB C.A.)
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CASE IN POINT
even providing food, clothing or shelter to the offender) is an
offence.
accessory after the fact –
someone who knows that a
crime has been committed
and who helps the person
who committed the crime to
hide or escape from the
police.
CASE IN POINT
R. v. Lindsay, 2005 CanLII 24240 (ON S.C.)
Organized crime – a group
(3 or more than share a
common identity) that
identifies itself by opposing
authority and engaging in
ongoing criminal activity,
the group becomes a
criminal organization that
defies mainstream values..
Did You Know?
Criminal Intelligence Service
Canada (CISC) said the Hells
Angels motorcycle gang remains
the largest and most powerful
outlaw gang in Canada.
Documentary: “Gang Wars: Bloodbath in Vancouver”