Chapter 3- Proving the Crime

CRIMINAL LAW CAN (FALL 2011)

CHAPTER 3- PROVING THE CRIME

Note on Criminal Procedure

The Commencement of Criminal Proceedings

1) complaint- typically from a citizen to the police, or police officer will personal witness
Officer will then investigate the suspected offence- if there is believed to be evidence to justify a prosecution- will make a report to Crown Counsel
Vancouver- needs a “charge approval” by a senior Crown counsel before proceeding
2) swearing out the information- no criminal charge can be commenced without the approval of a Justice of the Peace (ex. provincial court judge)
Complainant (usually police officer) will prepare a formal charge document called “Information”, and then appear before the justice of the peace and swear under oath that they have witnessed the offence(s), or has reasonable grounds to believe that they have taken place
Officer will then relate a summary of the evidence and the justice of the peace must decide whether or not to proceed- if yes, then “issue process”
Formal beginning of a criminal proceeding
3) issuing process- only a justice of the peace can compel an accused person to attend in court to answer a charge
4 different ways that this can be done:
Confirming an appearance notice- a pre-charge summons usually given by a police officer, but since they have no power to summon a person to attend court, it must be confirmed by a justice of the peace to be effective
Ex. a shoplifting case, where there is no problem of identification of the suspect
Confirming a promise to appear- if the officer has arrested and taken the person to jail, the jailer needs to decide if continued detention of the suspect is justified
If not- then the criminal code requires that the person be released and they are given a promise to appear (also confirmed by a justice of the peace)
Ex. case of impaired driving
Issuing a summons- if no appearance notice or promise to appear has been used, then the justice of the peace may authorize the issuance of a summons, governed by S. 509(2) of the criminal code
“a summons shall be served by a peace officer who shall deliver it personally to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least 16 years of age”
Issuing a warrant to arrest- an order directed to peace officers to arrest the accused and being them before the court to answer the charges
Can be local, province-wide, or Canada-wide
When brought before the court- they may make a bail application to be released pending trial

Included Offences- general rule that an accused can only be convicted of the particular offence with which he or she is charged (in the information or indictment)

Exception- an accused can always be convicted of any offence that is “included” in the one that is charged
Ex. S. 662(2) specifically provides that second degree murder is an included offence of first degree murder
Through the operation of S. 662(1)- a count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, the accused may be convicted
(a) of an offence so included that is proved, notwithstanding that the whole- “as described in the enactment creating it”
Ex. if cannot prove assault causing bodily harm- can still just go for assault
Ask- “is the lesser offence a necessary step to proving the more serious offence?”
If yes- then the lesser offence is included in the serious offence
(b) offence that is charged is not provided; or- “as charged in the count”
Captures those offences that are included because of the way the charge is drafted by the Crown
Ex. if accused is charged with the “attempted murder of X by stabbing him with a knife”- then assault with a weapon is an included offence because that offence is “charged in the count” because of the language of the Crown used to describe the attempted murder
(c) of an attempt to commit an offence so included- “an attempt to commit”
Ex. charged with “did commit the theft of a motor vehicle”, but on the evidence the accursed was arrested while in the vehicle trying to turn it on- the accused can still be convicted of the offence even though “attempted theft” does not appear on the indictment

Outline of a Criminal Trial

Arraignment- charge is formally read to the accused
Plea entered
Guilty- accused in sentenced
Not guilty- moves on in the steps below
Crown case- calls its witnesses to give evidence which the defence then has the option of cross-examining
Direct evidence- ready-made for a jury to use in order to convict, don’t need to draw any further inference in order to use
Circumstantial evidence- not ready-made to be used, evidence from which you need to make a further inference from to make it useful
Need to be careful not to make an incorrect inference
Crown case is closed
3 options are open to the defence
No evidence motion
Defence submission
Crown submission
Judge’s ruling
Motion granted- accused not found guilty and the trial is over
Motion refused- defence then has the option of either of the 2 below
Defence calls evidence
Defence case is closed
Closing arguments- if defence has called evidence, they will make their closing argument first, if didn’t call evidence, then will go last
Judge’s charge
Judge’s/jury’s ruling

Note: The Charge and the Elements of the Offence

The Charge: The Information of Indictment

Determine what offence is charged in the indictment or information
Read and interpret the statutory provision describing or defining the offence

Charging Sheet

Shows what the Crown has to prove
Most offences have 3 core elements that need to be proved beyond a reasonable doubt:
Identity- prove that the person in court is the person who is the offender
Actus reus- person has engaged in the prohibited act
Mens rea- the mental awareness/intention of the person
Jurisdiction- where the issue happened approximately
Date of alleged offence- Crown is given some flexibility in this so that the accused cannot get off on simple technicalities
Allows the accused to provide a full answer and defence

Elements of the Offence

Actus reus- the prohibited act, omission or state of affairs
Mens rea- the required mental element of fault
Must also prove the facts alleged in the charge
Ex. the accused named in the charge, stole the property specified in the charge at the time and place alleged, subject to permissible amendments and very flexible rules on proof of time and place
Crown is required to prove EACH beyond a reasonable doubt

Note: Introductions

Note: The Adversary System- what we have in Canada

Judge’s role is relatively passive- not involved before trial in investigating facts

Note: The Nature of Evidence

Most common method of proof under our system is by the oral testimony of witnesses

Note: The Sequence of Events at Trial

If the accused pleads “not guilty”- the prosecution (Crown) has the burden of proving the guilt of the accused
At the close of the Crown’s case- the defence may make a “no evidence” motion, arguing that the charge should be dismissed because the Crown has not satisfied the evidential burden

Note: Evidential Burden Distinguished from the Burden of Proof- general rule is that if party X has the burden of proving fact A, X also bears the evidential burden regarding fact A

The Crown’s Evidential Burden- Crown must introduce at least some evidence on every element that they are required to prove
Test- is there any admissible evidence (on each element of the offence) upon which a reasonable jury, properly instructed, could convict?
Will be satisfied if the Crown has adduced admissible evidence on each element which could, if believed, result in a conviction
Do an assessment of the circumstantial evidence to ensure that at least one reasonable inference could convict the accused
The question of “reasonable doubt” does not arise here
Reliability and credibility are not considered at this point
After- the accused is entitled to make a “no evidence” or “non-suit” motion, arguing that the evidence adduced by the Crown does not satisfy this evidential burden
Then entitled to a ruling on this motion at that stage
If successful- the accused is entitled to an acquittal, without being required to decide whether to adduce evidence
Always a question of law for the judge to decide- never the jury
Jury’s task- to determine whether the evidence, later, viewed as a whole, has proved the guilt of the accused “beyond a reasonable doubt”
The Crown may successfully appeal if the judge acquits on the ground that the evidential burden has not been satisfied
If satisfied- the accused is entitled to decide whether or not to call evidence

The Accused Evidential Burden
In cases of reverse onus- the accused bears not only the ultimate burden of proof (on the balance of probabilities), but also the initial evidential burden
If not satisfied- the trier of fact must find the accused on the issue covered by the reverse onus provision
Other statutes may impose on the accused, not a burden of proof on the balance of probabilities, but merely an evidential burden to introduce some evidence sufficient to raise a reasonable doubt
For some defences- ex. drunkenness, self-defence, provocation, duress, etc.
Common law that the accused typically does not have to induce evidence
BUT if the Crown has a super strong case- then, as a practical matter, it would be a good idea to induce some evidence in order to raise a reasonable doubt

CHAPTER 2- CRIMINAL CASE OVERVIEW

R. v. Sheppard- assault case where two guys are fighting and another guy steps in to break it up and he gets hit and then the guy who hit him runs away

Charged with assault contrary to S. 265(1)(a) of the Criminal Code- “without the consent of another person, applies force intentionally to that other person, directly or indirectly”
Issue- do they actually have the correct identity of the accused?
Circumstantial evidence- guy who punched him went into a taxi
What stops the case- female witness who knows the accused really well and that he didn’t hit Thorne
Judge also finds some problems with the Crown’s evidence- ID’ing the person in court
Concerned that the police officer did not take the statement
Found- not proved beyond a reasonable doubt

R. v. Saunders- accused is charged with various drug charges, Crown specifies that it was heroin, evidence came out however, that it was cocaine and not heroin, but the Crown says that they were basically charging him with drug conspiracies so it shouldn’t matter that they specified heroin in the first place, should just convict on the fact that he was trafficking drugs

SCC said NO- he was on trial for the specified heroin
It is a fundamental principle of law that the offence as particularized in the charge must be proved- to permit the Crown to prove some other particular would undermine the purpose of providing them
The whole reason of supplying these particulars is to give the information to the accused

CHAPTER 1- SOURCES OF THE CRIMINAL LAW AND THE SUPREMACY OF THE CHARTER

Constitution Act, 1967

Powers of the parliament
S. 91(27)- criminal law
S. 91(28)- the establishment, maintenance, and management of penitentiaries
Exclusive powers of provincial legislatures
S. 92(6)- the establishment, maintenance, and management of public and reformatory prisons in and for the province
S.92(13)- property and civil rights in the province
S. 92(14)- administration of justice in the province
S. 91(15)- the imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province

The Canadian Charter of Rights and Freedoms (1982)-key provisions to consider

Guarantee of rights and freedoms
S. 1- rights and freedoms in Canada
Fundamental freedoms
S. 2- fundamental freedoms (conscience and religion, expression, etc.)
Legal rights
S. 7- life, liberty and security of the person
S. 8- search or seizure
S. 9- detention or imprisonment
S. 10- arrest of detention rights
S. 11- proceedings in criminal and penal matters
S. 12- treatment or punishment
S. 13- self-criminalization
S. 14- interpreter
Equality rights
S. 15(1)- equality before and under law and equal protection and benefit under law
Enforcement
S. 24(1)- enforcement of guarantees of rights and freedoms
(2)- exclusion of evidence bringing administration of justice into disrepute

R. v. Sharpe- makes it criminal to have your own depictions or pictures of children in sexual acts, even when none were harmed, or you can write your own stories (creativity), even if made and kept in complete private

Unique Canadian approach that says you can have reasonable violations of the Charter in ordinary laws in the criminal code- this is an example
Attempt to challenge child pornography laws based on freedom of thought, belief, opinion and express and life, liberty and security
The law may incidentally catch forms of expression that more seriously implicate self-fulfillment and that do not poses a risk of harm
Very broad for a legitimate reason- goal of the legislation is to protect against direct and indirect harm that flows from these materials
Direct- use of the children in the production
Indirect- research says that it still poses a danger to children, the fact that these materials are available
Problematic that this also applies to private possession- does not make the exception that they have produced it themselves, without using a child
Makes it a crime to write down your own story about children and sexual stuff and keep it locked away
No age limit- can criminalize young adults, children who draw themselves, etc.
Clearly this law is violating freedom of expression- need to therefore go under S. 1 to see if there is a reasonable limitation of these expressive rights
So the accused must show on the balance of probabilities that the law in question violates a Charter protected right- then you proceed to S. 1 analysis
Oakes test- needs to pass each part of the test to be saved under S. 1
1) determine whether government had a pressing and substantial objective in passing the legislature
Usually isn’t hard to pass the test here
Child porn poses a reasoned risk of harm to children (direct and indirect) and the legislation targets this
2) rational connection test- ask if there is a basic reasonable rational relationship between the objective and the means
Doesn’t usually fail here either- unless there are extreme circumstance
There is a “reasoned apprehension of harm”
3) minimal impairment- ask if they went farther than they reasonably needed to in order to achieve their objective
Could they have achieved their objective through narrower means, with less of an infringement on someone’s rights?
LOTS of laws fail here
The courts have clearly said- it is no micromanaging, we give some deference to parliament when we make these decisions
So it only needs to be reasonably tailed to its objective- not perfectly
Proper statutory interpretation with the consideration that the intent is to catch harm related to children will not catch the 2 exceptions presented- almost like thought control in the 2 examples, possible invasion of privacy
4) proportionality- balances the benefits of the law vs. the deleterious effects of it, and on society
If it gets to this stage, it has passed minimal impairment- no way to make the law more narrow to achieve our objective
So if it makes it past minimal impairment- usually good to go
Benefits outweigh the effects except in the 2 examples which are peripheral to the legislation’s objective
If it isn’t saved by S. 1- the court is given 3 options:
Can strike down the whole law- no longer exists
Parliament can them come and write a new law
Fairly drastic thing to do
Reading down- just strike down a limited provision, take out the offending section
Doesn’t tie parliament- they can come back and define the specific section
Reading in- add something that they think is missing and therefore makes it inconsistent
A little more controversial- the court is adding this, not parliament
Unreasonable to strike down law that is substantially constitutional
Based on the twin guiding principle for parliament’s role and respect for the purposes of the Charter, reading in expectations to the to the criminal code is appropriate and parliament will likely do the same
Ex. okay if you did not use an actual child, created as the accused, and kept them in private possession, or if you are both underage yourself

Illustrative Cases on “reasonable doubt”

Charemski v. The Queen- murder case where she was found in the bathtub

Talking about the “no evidence standard”
Flexible for the Crown- assume that all the witnesses will be believed and that all the evidence is flexible
Direct evidence- virtually always gets over the no evidence threshold
Circumstantial evidence- even if you find it to be reliable and credible evidence, it may not be enough to support a “reasonable inference of guilt”
Murder case- but there’s no clear evidence that there was actually a murder
Circumstantial- he was in the building “fairly close to where the death occurred”
He offered evidence of stuff before it even became available- said that she often fell asleep in the bathtub
This was knowledge of the manner of death prior to it being disclosed by the police
Holdback evidence- police will be very careful not to give all the evidence, to see if the suspect will accidently say something
One reasonable inference of guilt- possible inference from this that he killed the victim
If the Crown fails to adduce any evidence to discharge the evidential burden on any of the issues- the trial judge should direct a verdict of acquittal
Trial judge should have directed the jury according to the requirement that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime

R. v. Lifchus