Introduction

Question 1

What is Criminal Law?

Answer 1

• Only the federal government has jurisdiction over ‘criminal law’ and the procedures relating to it
  ^^under the Constitution Act 1867

Question 2

Definition of a crime

Answer 2

1. prohibited conduct
2. penalty for 1 and
3. both 1 and 2 must be directed towards a public evil or some behaviour that is having an injurious effect upon the Canadian public
   - includes: public peace, order, health, security and morality

Question 3

True Crimes

Answer 3

• action is “so abhorrent to the basic values of society that it ought to be prohibited completely
• accused is considered morally culpable
• e.g. murder, sexual assault, fraud. theft, robbery

Question 4

Regulatory Offences

Answer 4

• action is not itself wrong, but unregulated activity would create dangerous conditions for certain members of society
• accused may not be morally culpable
• e.g. regulation of packaging of food products, control of misleading advertising

Question 5

Public Law

Answer 5

• Concerned with interests that affect all Canadians
• e.g. constitutional law regulates relationships between levels of government and government and the individual
• criminal law: commission of a crime is a wrong against society
• the crown prosecutes on behalf of all Canadians R. v the Accused

Question 6

Private Law

Answer 6

concerned with the relationship between individuals
- e.g. property law, contract law, tort law

Question 7

Sources of Criminal Law (1) Legislation

Answer 7

criminal code - enacted 1892
- substantive criminal law
- criminal procedure
other federal statutes
- controlled drugs and substances act
- crimes against humanity and war crimes act
- youth criminal justice act
indirect impact on criminal law
- canada evidence act
- charter of rights and freedoms

Question 8

Substantive Criminal Law

Answer 8

nature of various offences and defences

Question 9

Criminal Procedure

Answer 9

procedures that must be followed in the prosecution of a criminal case

Question 10

Early Criminal Code Provisions

Answer 10

If a sentence of death is passed upon any woman, she may move in arrest
of execution on the ground that she is pregnant. If upon the report of
(medical practitioners), it appears to the court that she is so with child,
execution shall be arrested until she is delivered of a child, or until it is no
longer possible in the course of nature that she be so delivered.
* “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’-nine-tails unless some instrument is
specified in the sentence. Whipping shall not be inflicted on any female.
* “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.”

Question 11

Criminal Code

Answer 11

• summary conviction offences
• indictable offences
• hybrid offences (most common)

Question 12

Summary Conviction Offences

Answer 12

May be tried before a provincial or territorial court judge or justice of the peace
sitting alone.
* Max penalty fine of $5000, 6 mos sentence, or both.
* E.g. carrying a weapon while attending a public meeting; obtaining food, beverage or
accommodation by fraud

Question 13

Indictable Offences

Answer 13

• May be tried by more than one court procedure depending on the seriousness of the
  offence.
• E.g. murder, manslaughter, aggravated sexual assau

Question 14

Hybrid Offences

Answer 14

E.g. Assault, assaulting a peace officer, sexual assault, unlawful imprisonment.

Question 15

Sources of Criminal Law (2) Judicial Decisions

Answer 15

Judicial decisions may interpret the law
* S.265(1) Assault (a) [the accused] applies force intentionally to the other
person…
* What does “applies force” mean?
* Judicial decisions may expound the common law
* Common law = law that evolved in the courtroom (not covered by legislation)
* Contempt of Court and the defense of Necessity are both common law.
* As of 1954, except for Contempt of Court, you cannot be convicted of a
common law crime, but you may use a common law defense.

Question 16

Impact of the Charter on Criminal Law

Answer 16

The Charter empowers judges to declare any piece of legislation
invalid if it infringes on an individual’s protected rights.
* S.7 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.1 The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.

Question 17

Remedies

Answer 17

Presumption of Constitutionality
- a presumption that the legislature intended to enact legislation that conforms with Charter requirements
Severance
- Cutting out offending words and leaving the remainder of the legislation in compliance with the Charter
Reading In
- adding words to the legislation that renders it in compliance with the Charter
Reading Down
- Interpreting legislation in a strict; narrow manner so that it does not violate the Charter
Applying S.1
- an infringement of a chart right may be justified as a reasonable limit in a free and democratic society
Striking Down
- declare legislation as invalid

Question 18

Carter vs Cananda

Answer 18

People who were suffering from a terminal illness wanted to have the option to
end their own lives at a time of their choosing.
* S.14 No person is entitled to consent to have death inflicted on them, and such consent
does not affect the criminal responsibility of any person who inflicts death on the person
who gave consent.
* S. 241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term
not more than 14 years who, whether suicide ensures of not,
* (a) counsels a person to die by suicide or abets a person in dying by suicide; or
* (b) aids a person to die by suicide.
* But.. Does this violate the Charter?
* S.7 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.

Question 19

Decision

Answer 19

SCC: The Criminal Code violates the Charter.
* “The appropriate remedy is therefore a declaration that s.241(b) and s.14 of the Criminal Code
are void insofar as they prohibit the physician-assisted death for a competent adult person who
(1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical
condition (including an illness, disease or disability) that causes enduring suffering that is
intolerable to the individual in the circumstances of his or her condition.” (Carter at para 127)
* 241 (1) Counselling or aiding suicide: Everyone is guilty of an indictable offence and
liable to imprisonment for a term of not more than 14 years who, whether suicide
ensues or not, (a) counsels a person to die by suicide or abets a person in dying by
suicide; or (b) aids a person to die by suicide.
* (2) Exemption for medical assistance in dying: No medical practitioner or nurse
practitioner commits an offence under paragraph (1)(b) if they provide a person with
medical assistance in dying in accordance with s.241.2

Question 20

Burden of Proof

Answer 20

Which side (Crown or Defense) must prove their case?
* In Criminal Law the burden of proof is on the Crow

Question 21

Quantum of Proof

Answer 21

• What type of proof is required?
• In Criminal Law the quantum of proof is beyond a reasonable doub