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Introduction to Criminal Law

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Criminal Law deals with the punishment of the offender. The burden of proof is on the prosecution (the crown or R) to prove the guilt of the defendant. The proof must be beyond a reasonable doubt.

In Civil law the idea is to compensate the claimant there is no punishment. It is an attempt to put parties where they were before the situation took place. Here the burden of proof is on a balance of probabilities.

The whole theory of Criminal law is very stringent and serious and it meant to deter someone from commiting crime.

In R. v. Sweeney (1992), the BC high court laid out the legitimate reasons we punish offenders (including retribution) and the illegitimate (including vengeance). The case revolved around the sentence of a criminal who had killed a man while driving drunk and fleeing from police. Wood JA made it clear that the criminal justice system was intended to serve the interests of society, not heal the wounds of the victims. As well, sentences must be proportionate to the crime and must be the “least onerous sanction possible” in fitting the crime. The 4 goals of sentencing are:

1. general deterrence =sceptical of it, but does not denounce it.

2. specific deterrence = if society is not deterred, how can the criminal be?

3. isolation = valid, but care must be taken to ensure that we cannot protect society in other ways.

4. rehabilitation = a myth; doesn’t happen in prison.

What about the punitive aspects of the criminal justice system?

5. denunciation = limited to proportionality

6. just deserts (vengeance) = it has “no place” in the justice system

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Key Facts

The Law outlines what a crime is and what a crime is not

Criminal offences are set out in the Criminal Code or in other federal laws. There are two types:

Summary conviction offences, which are the most minor cases, for example causing a disturbance;
Indictable offences, which are more serious and include theft, break and enter, and murder.

Innocent before proven guilty

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The Prosecution has to prove guilt and the defendant does not have to prove their innocence (in the case in the textbook R v. Oakes( 1986): where it was agreed that the burden of proof is on the Crown to prove Oakes guilty of drug trafficking rather than he having to prove that he wasn’t.

The first thing is to define Crime. Crime is an issue of liability. By that I mean: That someone has to be to blame and liable for the offence concerned. Two places that we can find the definitions of crime and there are two. First: In statue (main places) ie. Laws the criminal code Second: common law.

A good example of the birth of a Common Law crime can be found in the case of R. v. Sedley (1663). In that case, Sir Charles Sedley was charged and convicted of Common Law crimes against the King’s Peace. He did some pretty wacky things like flashing people from his balcony, swearing, pissing in bottles and throwing them down at people. Before this case there was no law banning such lewd behaviour. This created the Common Law crime of obscenity.

What is also important is that Crime is a public law issue. This is noted in the case: Board of Trade v. Owen (1957) Where the judge says that a crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment. There are two elements as to why crime is public law. So even if the crime may be against an individual because the state has defined what a crime will be then essentially anyone who commits a crime, commits it against the public. The reason for this is that the state has to have a way to punish those who break the law, so we make crime a public law (so that makes criminal law different than other crimes like tort for instance - which is civil). You owe the debt to the public (NOT TO THE VICTIM)

So here is the formula: Criminal Liability consists of Actus Reus + Mens Rea (strict liability) + Absence of Defence = Criminal Liability

In order to find someone liable for a crime Actus Reus + Mens Rea + the Absence of Defence must be present

We will look into each of these areas more in depth. In terms of Defence. We will look at several defence claims (ie. insanity)- we will not look into strict liability as there just is not the time and this is just an overview course. However - and example of strict liability is the ownership of a dangerous animal - if I own a python and that python should strangle my neighbour- ownership of said python is enough to hold me strictly liable. (strict liability falls under three categories: animals, abnormally dangerous acts, and product liability).

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Actus Reus = Guilty Act

Is the doing part of a crime - It is Latin for the guilty act
It can be either an act or an omission.
Consists of all the circumstances of a crime.
All of the conduct of a crime
All of the consequences of a crime.

I have used a knife in this image because the actual stabbing is the act (the guilty act of the crime), the Actus Reus.

So in order to have a crime - a stabbing- then there has to be someone who is wounded.

An omission: Not all crimes involve committing an act. Some are omissions of a duty.

In Fagan v. Commissioner of Police (1968), the accused was stopped by a police officer and asked to pull aside to the curb. The policeman told the man to drive closer and accidentally stopped on the officer’s foot. He turned off the car. The officer told him to get off; Fagan’s response was “Fuck you.” He is then charged with assault. The problem here is that when he performed the actus reus of driving on the officer’s foot, it was an accident - he did not have the mens rea. He omitted to move the car: is that the actus reus? Can an omission lead to charges? The Common Law is hostile to punishing omissions.

- there were 2 possibilities:

- 1. the “omission” theory – under this theory, there are 2 parts to the crime: the accident (actus1) and refusing to drive off (omission).

- 2. the “continuing act” theory – at first there’s no mens rea, but it is acquired when the foot is accidentally drives on the officer’s foot. The act of driving is turned from an accident to intentional. The HOL buys this theory.

In Canada, the Code can create omission crimes. For example, a hit and run is a crime under Sec. 251. Even if you hit the person by accident, you have a duty to stay there and wait for police.

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Mens Rea = the Guilty Mind

Probably one of the most famous terms in law and means in Latin, guilty mind.
Intention
Reckless
Malice of forethought

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Identifying ‘Actus Reus’ and ‘Mens Rea’

Theft

322(1). Everyone commits theft who fraudulently…. converts to his use……..anything whether animate or inanimate the property, with intent….To deprive...the owner of …...it….

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