Criminal Law SUMMARYFebruary 2003
````````````````````````````CRIMINAL LAW – MIDTERM SUMMARY
Sarah Huggins
PART I: THE AIMS AND PURPOSES OF PUNISHMENT......
PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS. COMMON LAW CRIMES
CASE: R. V. Sedley......
CASE: Commonwealth v. Mochan......
CASE: Frey v. Fedoruk......
S. 177 Criminal Code – Peeping Toms......
Procedural Classification of Offences, page 161-163......
A - Statutory Interpretation; Rule of “Strict Construction” of Penal Provisions......
Using the Rule of Strict Construction......
CASE: R v. Goulis......
CASE: R. v. Paré......
Applying Rule from Paré......
CASE: R. v. Muchikekwanape......
CASE: R v. Mac......
PART III: CORNERSTONE PRECEPTS: THE PRESUMPTION OF INNOCENCE AND THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT
CASE: Woolmington v. D.P.P......
Golden Thread Quote......
CASE: R v. Osolin......
PART IV: THE ACTUS REUS (PHYSICAL) REQUIREMENT FOR CRIMINAL LIABILITY
A - The Unlawful Act – Interpretation Principles......
[1] Prostitution, etc.......
CASE: Hutt v. R......
Notes on the Crime of Prostitution (page 192-196)......
Criminal Code: ss. 197, 210-213......
Case: R v. DiGuiseppe......
[2] The Unlawful Act for the Crime of Assault and Sexual Assault......
S. 265 Criminal Code......
CASE: R v. Jobidon......
CASE: Bolduc and Bird v. R......
CASE: R v. Cuerrier......
[3] The Proper Scope of the Criminal Law
Notes on the Proper Scope of the Criminal Law (page 167-173)......
[4] The Unlawful Act in Breaking and Entering......
Case: Johnson v. R......
[5] The Unlawful Act of Causing a Public Disturbance......
CASE: R. v. Lohnes......
Interpreting a Statute......
B – Omissions......
CASE: Fagan v. Commissioner of Metropolitan Police......
CASE: R. v. Miller......
CASE: Moore v. R......
C – Causation......
PART I: THE AIMS AND PURPOSES OF PUNISHMENT
What does each author see as the function of the criminal law, the function of punishment (which is basically the criminal law “in action”)? On what basis is the criminal law (i.e. punishment of criminals usually by imprisonment) justified?
Goldstein and Goldstein: criminal law as a last resort process
H.L.A. Hart: aim of the criminal law (i.e. criminal legislation) is denunciation of conduct. This is to be distinguished from justifications for punishment when those laws are violated deterrence, retribution, vengeance, reformation. [note that Hart also believes that in favouring a modern, forward-looking, utilitarian justification for punishment over a back-ward looking, moral culpability justification for punishment, society has tended towards the “elimination of responsibility”]
Sweeny case (drunk driving): aim of punishment is NOT retribution (though court here misunderstands retribution as vengeance). Fundamental purpose of criminal sentencing is to enhance protection of society. In order to accomplish this purpose, punishment must be acceptable to society in order to achieve societal acceptance (1) fulfillment of the various utilitarian goals, i.e. deterrence, isolation, rehabilitation and denunciation, is critical for societal acceptance ; (2) punishment should be proportionate to gravity of offence (moral culpability).
Stephen: Main aim of the criminal law and punishment is the expression and gratification of society’s hatred towards the criminal and his conduct. (i.e. vengeance, revenge).
Morton: Criminal law as a contemporary morality play. The main aim of the criminal law is to demonstrate fundamental values to citizens. It’s object is to instill “abiding by the rules” values in ordinary citizens. Thus the raison d’etre of the criminal law is the ordinary citizen, not the criminal. Criminal law is only one of the institutions by which values are demonstrated.
H.R.S. Ryan: suggests that one aim of the criminal law should be to give citizens confidence in the legal order (this echoes Sweeny). This suggests that if we didn’t balance interests (e.g. allow punishments to reflect the seriousness of the harm and the anger of the community), society would not have confidence in the system and might not abide by it.
-Note that there is no general agreement as to the function of the criminal law/the aims and justifications of punishment. Society has not come to any general consensus. Philosophers disagreed. Contemporary analysts disagree. (Talk about this disagreement. Who believes what?) (May also talk about discrepancies in understanding issues – e.g. retribution). Will we ever agree? NO. Part of the reason no conclusive research as to which of the aims of the system are actually being fulfilled AND so much variation across different kinds of crimes.
-Do we want to agree? Maybe not. Maybe the interests of society and the criminal are best served if we seek to balance the various justifications and aims. Perhaps general societal acceptance of the system will be greatest if each person sees his/her values included as part of the balancing act. NO JUSTIFICATION IS APPROPRIATE ON ITS OWN. For example, Lewis points out that if deterrence were the only justification, we could justify punishing an innocent man so long as society thought he was guilty. In CAM case, court speaks to importance of BALANCE – sees retribution as a restraint on the utilitarian justifications. And it is evident that if we did not meet society’s demand to see punishment accord somewhat with the harm done, society might not accept the criminal law system at all. (e.g. parliament has decided that impaired driving causing bodily harm deserves lesser sentence than that causing death).
-Also some disagreement as to who the law speaks to? Does it speak to all citizens (as Morton suggests) or only to some?
-Significance of what view you take – what institutions are engaged? Institutional actors themselves may have incentive to promote the justification that engages their institution. Hart: when use utilitarian justifications, need reason, experience and science; Lewis: this necessarily creates role for experts and precludes ordinary citizen participation. When use more traditional justification (retribution) – engage jurists and citizens (they are capable of making the determination). Devlin (sort of suggests): when use rehab as justification – engage social workers and psychologists. When use moral retribution as a justification – engage courts and lawyers. When use isolation/deterrence as a justification – may engage prison system. When use denunciation as a justification (a la Hart) – engage legislators…
Arguments for/against various justifications of punishment:
UTILITARIAN JUSTIFICATIONS:
Hart sees these as the modern conception of punishment goal of the criminal law is to reduce crime and protect society from the criminal…thus punishment is justified on the basis that it deters/reforms a criminal, deters potential criminals, isolates criminals from society. According to this utilitarian view, the older conception of punishment, under which the justification for punishment is in the moral responsibility of the criminal, is irrational. He believes that in this way, the criminal law has tended toward the elimination of responsibility.
C.S. Lewis refers to these utilitarian justifications as the “humanitarian theory of punishment” which he believes is only disguised as being humane. In fact, b/c it has no place for the moral culpability of the wrongdoer, it is unjust and cruel: “mercy detached from justice grows unmerciful”. [see below for his specific criticisms]
Michael and Wexler:
Deterrence
Def’n (Sweeny) General Deterrence: legal sanction imposed on actual offenders will discourage potential offenders. Specific Deterrence: legal sanction imposed on an offender will discourage that individual from re-offending.
Pros: supports the notion that the goal of the criminal law is the protection of society (Sweeney)
Cons:
-Empirical Research: Little empirical research to support deterrence claims (mostly based on common sense). Success of deterrence varies widely depending on the crime (murder vs. tax evasion); this holds true for specific deterrence also (rates of recidivism vary from crime to crime) No evidence that more severe sanctions have a greater deterrent effect (esp for crimes of passion). (cite editors of S&D)
-Lewis: Exemplary punishments (using criminal as an example or a means to someone else’s end) are wicked; deterrence justification alone could support punishing an innocent man (so long as society thinks him guilty).
-There are some acts that just cannot be deterred – negligence is one of them; crimes of passion are another
-Lack of intention = difficult if not impossible to deter.
Rehabilitation
Def’n: idea that we can cure the offender and thus permanently ensure that he does not re-offend. Sweeny case: rehabilitation is not accomplished by custodial sentences.
For: Devlin social workers, medical people like this argument.
Against:
-Research: little evidence as to the effectiveness of various punishments. Grave methodological problems associated with conducting this research. Also, experts/psychiatrists have little ability to predict dangerousness…and yet such predictions/determinations are necessary if offenders are to be released once they have been fully “treated” or “cured”.
-Lewis:
-“Cures” sounds more just and merciful than “punishments” but (1) “cures” are just as compulsory and (2) a “cure” includes most of the elements for which punishment is feared (loss of liberty, normality, property, etc.).
-Problem of fixing the right sentence requires reliance on expert opinion; no longer a role for the ordinary man; thus considerations of justice and rights may not be employed.
-If crime is a disease, how can it be pardoned?
Vengeance
Def’n: Reprisal for harm that is motivated by emotion and anger
C.A.M.: has no role to play in a civilized system of sentencing.
J.F. Stephen: vengeance is a valid aim of punishment. Hatred and vengeance are deeply rooted in human nature; and criminal punishment is a necessary and desirable means by which this hatred can be expressed. Punishments should reflect the degree of hatred towards the criminal. Expression of hatred is the primary aim of criminal justice; direct prevention of crime is the secondary aim.
Sweeney case – Judge Wood confuses retribution and vengeance.
**THIS IS A VALID JUSTIFICATION – see s. 80 of the criminal law – long sentence for negligent conduct. Doesn’t serve a highly deterrent function or retributive function….so maybe it is vengeance. Maybe parl wanted society’s anger to be able to be expressed (when someone died as result of negligent use of explosives).
Denunciation
Def’n (C.A.M. Case): symbolic, collective statement that offender has encroached on societal values. A statement that these types of conduct are not acceptable in this society b/c they offend shared values.
C.A.M. case says that denunciation is a justification for punishment
Hart emphasizes that denunciation is the aim not of punishment but of the criminal law (i.e. legislation) more generally.
Morton: criminal law is a contemporary morality play. The purpose of the criminal trial is to demonstrate society’s values to its citizens (instill in them “rule-abiding” values).
NON-UTILITARIAN JUSTIFICATION:
Retribution/Just Deserts(?):
Def’n (CAM case): determination of a punishment which reflects the moral culpability of an offender. Takes account of intentional risk-taking of offender, consequential harm caused, normative character of conduct.
Example:
Pros:
-Balances utilitarian justifications; may act as a restraint on them and thus result in more just sanctions (i.e. where utilitarian justifications alone might lead to harsh/severe/unfair sanctions) (Sweeny case)
-Lewis: leads to justice.
Who supports which justifications? May depend on the extent to which it engages certain institutional actors. If you are a social worker, you would likely support a rehabilitation function.
Ultimately, in order for any theory of punishment or system of sentencing to be successful, it must be acceptable to the public (CAM case and Ryan make this point). This suggests a need to balance all the competing considerations and justifications.
ALSO…ask, are there institutions that would better serve these goals wrt this act/conduct/criminal?
Cetkovic case:
PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS. COMMON LAW CRIMES
CASE: R. V. Sedley
R. v. Sedley (1663), page 1
Sedley was indicted at common law for several misdemeanors against the King’s peace. Crime against the king’s peace or a misdemeanor.
Threw piss down off a balcony. Very similar to Mochan.
CASE: Commonwealth v. Mochan
Commonwealth v. Mochan (1955)
Facts:
-Dft, over 1 month period, on numerous occasions, telephoned a woman. His language on calls was obscene, lude and filthy.
-No statute in Penn. that punished such conduct. No case that had been decided in the state that made such conduct criminal. [Note that while Canada has a federal criminal law, crim law in USA is regulated by the individual states]
Judgement:
-Not impt that there is no precedent which decides this Q.
-Test is not whether there is precedent in the books but rather whether offence can be punished under common law. Any act which tends to injure the public, to such an extent to require state to interfere and punish wrongdoer, as in the case of acts which injure public morality or obstruct governance.
-Whatever openly outrages decency and injures public morals is a crime.
Commentary:
-Note…there is a control here must be something that society agrees would outrage decency. Can’t just punish any old conduct. (Control is on judge, police and prosecutor).
-Concern that a judge might have too much power to decide what public morals are.
-Concern uncertainty wrt what actions are allowed or not allowed. (Rights of the offender/individual) – at the time when the guy made the call, he didn’t know it would be a crime. But what’s the philosophy behind protecting this kind of guy? The idea that we want to protect rights that he had before he became a lude caller.
-This decision puts the society over the individual rights. Protects society at the expense of an individual.
-Argument for “flexible” criminal law (giving judge’s power) impossible to make an exhaustive list of all behaviours that might engage criminal liability Willis article: he wants flexibility; no constraint of code and statutes
-[an aside statutes are not retroactive; case law is retroactive (but in many cases…only when court says it was retroactive) once crime is declared, it was always a crime]
CASE: Frey v. Fedoruk
Frey v. Fedoruk, [1950] S.C.C. page 3
Facts:
-Frey was seen on Fedoruk’s property peeping into a window of the house. Fedoruk chased him with a butcher’s knife, caught him and detained him. A police officer arrived and arrested him w/o warrant.
-Frey sued for malicious prosecution and false imprisonment. The trial judge and court of Appeal dismissed the case, saying that a common law crime was justification for arrest w/o warrant.
Issue:
Is the commission of a common-law crime a justification for arrest/imprisonment without warrant? Is the act committed by Frey a crime at common law?
Held:
No.
Ratio:
-Criminal offences are found only in the Criminal Code and established Common law. No person can be convicted of a crime that is not found in one of these two places. Since being a “peeping tom” was not an offence known to the law, there was no justification in law for Fedoruk and Stone to have imprisoned Frey.
-It cannot be held as a matter of law that conduct not otherwise criminal becomes criminal because a natural and probable result thereof will be to provoke others to violent retributive action. This would result in great uncertainty.
-Judicial officers do NOT have the power to declare anything to be an offence which is injurious to the public although it may not have been previously regarded as such.
Commentary:
[J. Willis, 1950, page 5]
-Where do we now stand w/ peeping toms? not prohibited by any section in the code and is not a criminal offence at common law
-Where do we stand w/ common law offences? fear that if crimes are confined to those established in statutes, lose advantage of common law; its advantage of being capable of application to new combinations of circumstances that recur. When Criminal Code was first introduced into H of C, common law was preserved…in order to give the code “elasticity”.
-In this case, the Supreme Court rejected this notion of elasticity in favour of certainty in administration no one shall be punished for anything that is not expressly prohibited by law. S.C. chose to place the protection of the individual from oppression above the protection of the state from disorder.
-Note: 1955 Revision of the Criminal Code abolished Common-law offences (s. 9) but preserved common law defences. It also made it a crime to be a peeping tom.
-Q: Have Professor Willis’s fears been satisfied by legislative action?
[Sklar]:
-Rule from this case puts burden on legislature (to declare acts that are injurious to society criminal)
-S. 9 eliminates common law offences – goes beyond F v. F which held that crimes had to be written (in Code OR in Common [case] law)
-Response to F v. F S. 177 Criminal Code
RULE: Law must be written down before person can be convicted of a crime. (Not equivalent to S. 9 of Code which eliminates ALL common law offences). Note that this is the PRINCIPLE OF LEGALITY – citizens should know beforehand what is punishable.
S. 177 Criminal Code – Peeping Toms
Everyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling house situated on that property is guilty of an offence punishable on summary conviction.
The criminal law is the most severe infringement on individual liberty. It should be used sparingly and as a last resort. This is why the statute is read so narrowly.
Comments:
-Crown must prove: loitering, at night, on property of another, near dwelling house on that property
-Accused can: prove lawful excuse. (This is a statutory exception to burden on the crown as envisioned by Woolmington)
-See how narrowly it is drafted only dwelling houses, only at night.
-Why did Parliament draft it so narrowly? to avoid frivolous charges, to prevent the most frightening behaviour (night, near your house, etc.).
-ALWAYS ASK: What is purpose of statute? What kind of conduct is it designed to cover? Why is it as narrow or as wide as it is? (Goldstein – crim law is last resort. There are other institutions out there)
How to read a CC statute:
-what are the elements
-what are the policy implications
-what other potential crimes can fall under a statute.
Procedural Classification of Offences, page 161-163
-Criminal Code distinguishes between (1) indictable offences; (2) offences triable only by way of summary conviction proceedings; (3) offences triable on indictment OR by way of summary conviction proceedings.
-This designation affects trial and appeal procedures but also many pre-trial rights and responsibilities.