I. Basic Principles
- Goals of criminal law: (1) Punish inherently wrongful behaviour (2) Deter people from committing crimes or engaging in behaviour that presents a serious risk of harm (3) Rehabilitation of offender (4) Reparation to the victim and their community. Others: protection if life, notions of public safety, environmental protection etc.
- Formula for any criminal offence: A + F = G **Unless D (in which case not guilty)
- If elements (A+F)are proven beyond a reasonable doubt, than G, unless a matter of defence results from the evidence.
- A = Act (conduct – actus reus)
- F = FAULT (mens rea)
- Faultincludesintention, recklessness, knowledge, negligence, and criminal negligence(explained in more detail below)
- G = GUILTY
A. Sources of Substantive Criminal Law
- Constitution
- Parliament has exclusive jurisdiction over criminal law and procedure
- Provinces cannot create criminal offences, nor can they create anything related to procedure that could be characterized as criminal law. Provinces can create penal and regulatory offences, not criminal matters (Ex. Speeding on highway)
c.Key Charter provisions:
- S.7Charter Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
- S.11(d) CharterAny person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
- Statutory MaterialCriminal Code
- Other legislationProbably find more criminal law outside the Criminal Code than in it. Almost all Canadian legislation will contain criminal offences.
b.Ex: Competition Act has provisions related to search and seizure, some related to criminal law
c.Ex: ITA provides some criminal offences
- Judicial Decisions
b.Wedo not have common law crimes/offences in Canada (meaning it is all from statute)SO how can judges make law – they are not allowed to create offences
- Answer = judges have the power to make defences, justifications and excusesjudicially-made law is still very much alive
- (1) The Common Law (the judicial interpretation of an ambiguous language): can refer to judge-made rules, definitions of liability by judges; we have judicially-recognizes defences (defence of intoxication, defence of necessity, non-insane automatism)
- (2) InterpretConstitution, statutory language & the absence of statutory language. SO judges can’t make the rules, but they can fill the gaps with respect to the rules
- Rules of Court/Practice
B.Basics of a Criminal Trial
- Parties involved: accused, judge, jury (sometimes) prosecutor, defines lawyer, witnesses
- Steps of a trial:
- STEP 1: Crown decides what charge to bring. It must be (1) In the public interest(2) In QC, prosecutors impose 2 restrictions:(i) they must be thoroughly convinced that they can prove beyond a reasonable doubt the guilt of the accused(ii) the timeliness compared to the gravity of the offence.
- STEP 2:Crown has the burden of proof to demonstrate beyond a reasonable doubt that the suspect is guilty. This requires evidence which will determine if/what kind of charge will be brought against the accused. Strength and availability of evidence will determine the charge.
- Examples of evidence include:(1) Witnesses can give evidence on what they observed(2) Physical evidence: this is just a “thing” – it must be interpreted, there must be something that brings this object into the realm of being relevant to the particular charges
- STEP 3: The Defence Attorney is going to prevent the accused from being convicted – either by (1) attacking the evidence or (2) by providing some sort of defence to the charge
- Difference between judge and jury trials
- Judges play a more interventionist rolewhen there is no jury
- Judge needs to make sure that something is not being misrepresented to the jury, which could cause a mistrial. Hence the importance of Jury Instructions.
- In Canada, a jury verdict must be unanimous. If the jury is hung, there is a mistrial and it can be tried again.
- The judge must tell the jury how to approach the law. Judge is expected to give a summary of the essential evidence. The judge would have to set out the respective theories of the crown and the defense. The judge would have to say that it is up to the prosecution to prove guilt beyond a reasonable doubt. There are errors that can be made in the instructions that the judge gives to the jury
i) The Presumption of Innocence
- There is a presumption of innocence at every stage of the trial-Woolmington
- “Throughout the web of the English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove… if, at the end of, and on the whole of the case, there is a reasonable doubt… the prosecution has not proved its case and the prisoner is entitled to his acquittal.” -Woolmington
- So, if you find anywhere in the criminal law that proof of one thing leads to proof of another, you have a violation of the presumption of innocence. Happens A LOT!
- Trial Judge in Woolmington can be attacked on 2 grounds:
- 1. Presumption of guilt of accused
- 2. Requirement that the accused prove some matter of intention, which is a reversal of onus.
- Oakes shows the importance of the presumption of innocence – if the threshold of finding a violation of the presumption of innocence is comparatively low, then we see the comparative strength of the presumption of innocence as a principle of fundamental justice
- GENERAL RULE: the accused doesn’t have to prove anything relating to his defence, he is simply entitled to bring forward evidence that will contradict what the prosecution is asserting (proving beyond a reasonable doubt).
- S.11(d) Charter: “to be presumed innocent until proven guilty “
- Exceptions to the presumption of innocence: The reverse onus (some of which were able to violate s. 11(d) presumption but are than saved by s.1Oakes – ex: Keegstra)
- As the law stood in Canada after Woolmington was adopted, there were zero common law instances where the accused bore a burden to prove a matter of defense (since insanity was a statutory defence); there were statutory ones however. There are hundreds however, of reverse onuses of elements in statutes. Section 11(d) of the Charter knocked down a few.
- Jury Instructions for Presumption of Innocence, Burden of Proof, Reasonable Doubt (p.14CJC Final Instructions)
- The presumption of innocenceapplies at the beginning and continues throughout the trial, unless you are satisfied, after considering the whole of the evidence, that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt.The presumption of innocence applies to every element the Crown must prove for a conviction.
- Two rules flow from the presumption of innocence:(1) is that the Crown bears the burden of proving guilt. (2) that guilt must be proved beyond a reasonable doubt.
- “Beyond a reasonable doubt”: A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence. If you believe that the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to accussed and find him/her not guilty because the Crown has failed to satisfy you of his/her guilt beyond a reasonable doubt.
- If, based upon the evidence, you are sure that accused is guilty of the offence(s) with which s/he is charged, that demonstrates that you are satisfied of his∕her guilt beyond reasonable doubt, and you must find him/her guilty of that offence.
- If you have a reasonable doubt whether accused is guilty of the offence(s) with which s/he is charged, you must give him/her the benefit of that doubt and find him/her not guilrty.
- R v Oakes & R v Whites zZZ: The presumption of innocence is infringed whenever the accused may be convicted despite the existence of a reasonable doubt.
Woolmington v. D.P.P., H.O.L. (1935) / The accused claims his plan was to threaten to commit suicide with a shotgun in order to get his estranged wife back. He ended up shooting and killing the wife. Issue: Did the trial judge err when he instructed the jury that there is presumption of murder in all cases of homicide unless exculpated? Yes / Ratio: Presumption of innocence at every stage of trial. The accused only has to raise a doubt in the jury’s mind, not prove his innocence. Burden of proof cannot be reversed to defendant
R. v. Oakes, (SCC) (1986) / Oakes was caught in the possession of a narcotic. Under s. 8 of the Narcotics Control Act, a person found in possession of a narcotic was presumed to be in possession for the purpose of trafficking (unless the accused proved that trafficking was not his intention). Issue:Is the burden of proof a violation of the presumption of innocence under 11(d) Charter? Yes, not saved under s.1 / Ratio:“The presumption of innocence is a hallowed principle lying at the very heart of criminal law. […] The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct”
ii) Bail
- Bail is directly related to the presumption of innocence, because this person has not yet been found guilty.
- Article 515 CC states that an accused is entitled to bail (with or without conditions) unless the crown proves that there is(1) a flight risk (2) he could be dangerous for himself or society/witnesses (would consider prior convictions of the accused to determine if he is dangerous or (3) the release of the accused would otherwise undermine public confidence in the administration of justice (this is sort of a basket provision)
- For offenses such as drug trafficking, a first offender will probably be allowed to be released on bail, but the amount to be deposited would likely be quite large
- Sometimes there is a separate bail hearing where each side will present their facts and arguments and the judge will decide whether bail should be granted under 515 CC
C. The Principle of Legality
- Principle of legality: creates and sets out the minimum criteria (usually, conduct linked to fault) that must be proven by the crown for there to be a finding of guilt.
- Itdemands a valid definition of criminal wrongdoing in law.
- S.7Charter: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
- Applies to substantive rights/law, as a result of Re BC Motor Vehicle Act. Means that s.7 can be invoked to review substantive content of the Criminal Code. But can be saved if pass s.1 analysis.
- Principle of legalityexcludes:
- (1) Retroactivity: Criminal liability cannot be retroactive; must be fixed and predetermined, meaning we must be given notice and have knowledge of what will trigger liability and where the area of risk is. This why courts cannot create common law offences-Frey
- (2) Vagueness; fair notice is not satisfied when law is expressed in terms that are too general or vague. A vague law is one that does not sufficiently delineate any area of risk and when people cannot asses when conduct approaches the boundaries of the sphere provided by the law. –Canadian Foundation
- For this reasons judges should (1) follow principle of strict construction to statutory interpretation. (2) Ambiguity in legislation should be read in favour of accused (3) Ambiguity should be resolved in favour of liberty
- (3) Overbreadth; when the state uses means in a broader than necessary way to accomplish an objective. -Heywood
i) Common Law Offences
- Courts can’t create CML offences:If there is no statement by parliament of a criminal offence, it is not open to the courts to create new standards of liability. -Frey
- The CML law and the code interact:Section 8(3) of the Criminal Code allows the common law to continue to interact with the code, provided they are not inconsistent. This allows the SCC to use the common law to examine the present defence to assess whether it has legal effect. - Jobidon
Frey v. Fedoruk SCC, (1950) / An individual was arrested for being a “peeping tom” without a warrant and convicted by a police magistrate Issue:Can the common law develop new criminal offences? No / Ratio:It is impermissible for the courts to create new CML offences
R. v. Jobidon, SCC (1991) / Jobidon got into a consensual fight with the victim outside a bar. Judge found there was no intent to kill or cause serious bodily harm. Jobidon’s first punch rendered the victim unconscious and after a subsequent flurry of punches, the victim lay limp and later died of contusions to the head. Issues: (1) Can CML rules and principles be used to give meaning and explanation to the boundaries of the Code? Yes (2) Can someone give “consent” to be assaulted? No / Ratio: Section 8(3) of the Criminal Code allows the common law to continue to interact with the code, provided they are not inconsistent. This allows the SCC to use the common law to examine the present defence to assess whether it has legal effect.
ii) Vagueness and Over Breadth
A) Vagueness
- Vagueness is a principle of fundamental justice (Charter s.7) founded upon the rule of law, in particular aspects relating to fair notice to the citizen, and limiting enforcement discretion (A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute)-R. v. Nova Scotia Pharmaceutical Society affirmed in Lekovic
R v. Nova Scotia Pharmaceutical Society SCC (1992) / The twelve accused were charged with conspiracy to prevent competition unduly under s. 45(1)(c) of what is now the Competition Act. Nova Scotia judge quashed the charge on the basis that the word “unduly” made the law too vague.Issue: Is the impugned section of the law void for vagueness? No / Ratio: A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. Must: (1) Give fair notice to the citizen and (2) limit enforcement discretion
Vagueness can be raised under:
- S.7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague
- S.1in limine, on basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be “prescribed by law”
R v Levkovic SCC (2013) / A building superintendent discovered on the balcony a bag containing the remains of a human baby. Levkovic was charged with concealing the body of a child under s.243 of the Criminal Code. Section 243 makes it a crime in Canada to dispose of the dead body of a child with intent to conceal its delivery whether the child died before, during, or after birth. Before any evidence was called, Levkovic challenged the constitutionality of s. 243 on the ground that it was impermissibly vague in its application to a child that died before birth. She claimed that s. 243 violated s. 7 of the Charter. Issue: Is s.243 void for vagueness? No / Ratio: affirms ratio in R v Nova Scotia
Canadian Foundation for Children v. Canada (Attorney General), (2004) SCC / S. 43 CC justifies use of force “by way of correction toward a pupil or child… if the force does not exceed what is reasonable under the circumstances” The appellant sought a declaration that s. 43 violates ss. 7, 12 and 15(1) of the Charter.Issue: Is the “spanking law” void for vagueness or overbreadth? No / Ratios: (1) The guiding principle for vagueness is whether the law provides adequate notice that people may be entering an area of risk if criminal sanction. (2) Reasonableness is not an overly vague standard of conduct in the criminal law.
B) Overbreadth
- Over-breadth is the idea that the means employed by the law are too sweeping and not necessary to achieve the legislative purpose.Like vagueness, over-breadth is a principle of fundamental justice.Heywood
R. v. Heywood SCC, (1994) / A man was arrested for loitering near a playground, contrary to s.179(b) of the Code, given his past criminal record for sexual assault. He was seen photographing the crotch area of school girls The British Columbia CA quashed his conviction for the vagueness of the law in question Issue: Was the law overly broad?Yes in its (1) geographical (2) temporal scope (time) (3) in relation to the people it applied to (4) the fact that it could be enforced without any notice to the accused / Ratios: (1) Vagueness and over-breadth are related, but different concepts, both of which are requirements of fundamental justice. (2) Laws are overly broad where the means employed go beyond what is necessary to achieve their purpose.
Bedford v. Canada, (2013) SCC / Law breaches s.7 right to security of the person
II. Elements of Inculpation (Requirements for Guilt)
- Remember: Formula for any criminal offence: A + F = G **Unless D (in which case not guilty)
- If elements (A+F)are proven beyond a reasonable doubt, than G, unless a matter of defence results from the evidence.
- A = Act (conduct – actus reus)
- F = FAULT (mens rea)
- Faultincludesintention, knowledge, recklessness,wilful blindness, and negligence
- G = GUILTY
- D = DEFENSE
- This section deals with A (Act/conduct – actus reus)
- The actus reus contains two major elements: (1) Voluntariness and (2) Contemporaneity
- It also requires: (1) the existence of an act or omission, (2) offences sometimes prescribe certain circumstances, (3) offences sometimes require a particular consequence, (4) if a consequence is required, causation of the consequence by the prohibited act.
- Remember that all of these factors must be proven beyond a reasonable doubt.
- Criminal liability can only exist where there is valid definition in law of criminal wrongdoing (principle of legality). In deed, the act, or actus reus, is one of the two fundamental requirements of criminal sanction (the other being the mens rea, discussed below)