Criminology Chapter 3

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Criminal law

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a body of jurisprudence that includes the definition of various crimes, the specification of various penalties, a set of general principles concerning criminal responsibility, and a series of defences to a criminal charge

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2 primary sources of Canadian criminal law:

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1. Legislation 2. Judicial decisions that either interpret such legislation or state the “common law”

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Criminal procedure

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a body of legislation that specifies the procedures to be followed in the prosecution of a criminal case and defines the nature and scope of the powers of criminal justice officials

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The procedural provisions of the Criminal Code classify offences into 3 categories:

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1. Indictable offences 2. Offences punishable on summary conviction 3. Mixed or hybrid offences

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true crime

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Occurs when an individual engages in conduct that is not only prohibited but also constitutes a serious breach of community values; as such, it is perceived by Canadians as being inherently wrong and deserving of punishment. Only the Parliament of Canada, using its criminal power under the Constitution Act, 1867, may enact a “true crime” (theft, assault, sexual assault, etc)

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Regulatory offences

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arise under legislation (either federal, provincial, or territorial) that regulates inherently legitimate activities connected with trade, commerce, and industry or with everyday living (driving, fishing, etc). These offences are not considered to be serious in nature and usually carry only a relatively minor penalty upon conviction

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Common law

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the body of judge-made law that has evolved in areas not covered by legislation

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Charter

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the Canadian Charter of Rights and Freedoms, enacted by the Canada Act 1982

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Every criminal offence can be analyzed in terms of 2 major elements:

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1. Actus reus 2. Mens rea

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Actus reus

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all the elements contained in the definition of a criminal offence; other than the mental elements (mens rea)

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It is possible to divide the actus reus into 3 separate components:

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1. Conduct (a voluntary act or omission constituting the central feature of the crime) 2. The surrounding or “material” circumstances 3. The consequences of the voluntary conduct

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Mens rea

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the mental elements (other than voluntariness) contained in the definition of a criminal offence

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Subjective mens rea

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if they are based on a determination of “what actually went on in the accused person’s mind”. The forms of subjective mens rea are intention and knowledge; recklessness; and wilful blindness

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Objective mens rea

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are based on a determination of whether a reasonable person, in the same circumstances and with the same knowledge as the accused, would have appreciated the risk involved in the accused’s conduct and would have taken steps to avoid the commission of the actus reus elements of the crime in question

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3 forms of subjective mens rea that the Crown may be required to prove in a criminal prosecution:

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1. Intention and knowledge 2. Recklessness 3. Wilful blindness

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Party to a crime

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The Criminal Code specifies that one is a party to, and liable to conviction of, a criminal offence if one actually commits it; aids and/or abets it; becomes a party to it by virtue of having formed a common intention with others to commit a crime; or counsels the commission of an offence that is actually committed by another person

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Inchoate crime

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a criminal offence that is committed when the accused person seeks to bring about the commission of a particular crime but is not successful in doing so. The three inchoate offences in the Criminal Code are attempt, conspiracy, and counselling. (a crime in embryo)

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Counselling

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procuring, soliciting, or inciting another person to commit a crime

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Criminal attempt

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occurs when an individual does, or omits to do, anything for the purpose of carrying out a previously formed intention to commit a crime. The conduct in question must constitute a substantial step toward the completion of the crime that is intended

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Conspiracy

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an agreement by two or more persons to commit a criminal offence

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Not criminally responsible on account of mental disorder (NCRMD)

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in order to be found NCRMD, it must be proved on the balance of probabilities that, because of mental disorder, the accused lack the capacity to appreciate the nature and quality of the act or omission in question or of knowing that it would be considered morally wrong by the average Canadian

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Mistake of fact

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may be a defence where the accused person acts under the influence of an honest mistake in relation to any of the elements of the actus reus of the offence charged e.x. if a woman participates in a marriage ceremony with a man believing that her husband is dead, she would not be guilty of the crime of bigamy

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Intoxication

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caused by alcohol and/or other drugs may be a defence if it prevents the accused from forming the intent required for a specific intent offence, such as murder or robbery

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Necessity

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may be a defence to a criminal charge when the accused person commits the lesser evil of a crime in order to avoid the occurrence of a greater evil e.x. surgeon performing a twin separation operation where one dies

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Duress

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may be a defence to a criminal charge when the accused was forced to commit a crime as a consequence of threats of death or serious bodily harm made by another person

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Provocation

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may be a partial defence to a charge of murder (if successful, it reduces the offence from murder to manslaughter). The required elements of provocation are 1. That the accused responded to a wrongful act or insult that was of such a nature that an ordinary person would have been likely to lose the power of self-control and 2. That the accused acted “on the sudden and before there was time for his (or her) passion to cool”

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Self-defence

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the Criminal Code permits the use of force in self-defence in certain circumstances where the individual concerned becomes the object of an unlawful assault. Where the individual acted in self-defence without intending to inflict death or grievous bodily harm on the assailant, it must be shown that no more force was used than was necessary in the circumstances. Where the individual concerned inflicted death or grievous bodily harm, then it must be shown that he or she acted under a reasonable apprehension of death or grievous bodily harm and under a reasonable belief that he or she had no alternative but to employ lethal force