CRM304: The Canadian Criminal Justice System

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CRM304 The Canadian Criminal Justice System

• Week Four
• Criminal Law

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This Week

• Overview
• Principles of (Criminal) Law
• Types of laws
• Sources of Canadian Criminal Law
• British Common Law
• Constitution
• Statute law case law
• Legal definition of a crime
• Types of offences
• Amending the Code

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The Rule of Law

• Scope of law
• Law applies to all
• No one is above the law
• Character of law
• Laws should be clear and made public
• Institution of law
• Independent judiciary
• Written laws
• Fair, public hearing

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Types of Laws

• Public law
• Against public interest
• Criminal Law
• Taxation Law
• Administrative Law
• Constitutional law

• Private law
• Private disputes
• Torts (contracts)
• Inheritances
• Divorce
• Child custody
• Etc.

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Types of Laws

• Substantive law
• Spells out the specific behaviour which is
  required or prohibited.
• Must be in force at the time of the offence.
• Codified in Criminal Code of Canada.

• Procedural law
• Describes how law enforcement agents must act in
  dealing with an offence.
• Must be in force at the time of the trial.
• Guided by Charter of Rights and Freedoms.

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Example Sexual Assault

• 1983 legislative changes
• Substantive law
• Criminal offence of rape was replaced with 3
  degrees of sexual assault
• Procedural law
• Defendant cannot inquire about victims sexual
  past in court (Rape Shield Law)

http//www.harbour.sfu.ca/freda/c46/c46chron.htm
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Sources and Types of Criminal Law in Canada
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British Common-Law

• Canadian criminal law (and CJS) inherited from
  British common law (law common to England)
• Originated under Henry II (1154-89)
• The UK government (King parliament) passed laws
  
• Circuit court judges appointed to administer law,
  hear cases share decisions (forerunner of case
  law)
• Private wrongs (rape, murder, theft) evolved into
  crimes against the state (criminal law)

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Two bases for criminal laws

• Statute Law (Legislation)
• e.g., Criminal Code of Canada
• Case Law (Court decisions Jurisprudence)
• Precedent is set by previous court cases
• Decisions made by higher courts must be followed
  by lower courts
• E.g., Ontario Superior court struck down
  marijuana law in that province
• Governments create and enforce laws
• Courts administer interpret substantive and
  procedural law

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Statute Law

• Canadian Constitution divides powers between
  federal and provincial governments
• Constitution states that only the federal
  government can create criminal law
• Primary responsibility to enforce criminal laws
  vested in the provinces
• Some provinces have tried to implement
  quasi-criminal laws

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Statute Law

• All criminal laws are created, amended, or
  eliminated by the Federal Government (Department
  of Justice)
• Criminal Code of Canada (www.laws.justice.gc.ca/en
  /C-46/)
• Main criminal legislation
• An omnibus federal statute
• Is regularly amended through legislation in
  Parliament
• All statute law is subject to Charter of Rights
  and Freedoms (Courts decide if the law is legal
  adheres to the Charter)
• Governments must often amend or remove laws
  struck down by courts (e.g., abortion)

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Case Law (Precedent)

• Precedents set in previous cases are used as
  basis for decisions in future cases
• Equal rank courts follow each others decisions
  if possible
• Court decisions can be appealed to higher courts
• Ruling of the highest court prevails must be
  followed by lower courts
• Supreme Court of Canada has the final say on case
  law

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What is a Crime?

• A crime is a deliberate, reckless or negligent
  act that injures another person or causes damage
  to property.
• For an act to be considered a crime, two basic
  features must be present
• 1) Mens rea
• Guilty mind, criminal intent
• General or specific intent
• 2) Actus reus
• Actual behaviour, not just fantasy
• Includes criminal negligence

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Seriousness of Offences
Two categories of criminal offences, based on
seriousness 1) Summary 2) Indictable
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Summary Offences

• Minor offences
• e.g. communication for purposes of prostitution
• Maximum penalty 2000/ 6 months
• Up to 18 months in a few cases
• Always heard by provincial court judge
• Must be heard within 6 months
• Sentence served in provincial facility (Although
  most convictions result in probation)

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Indictable Offences

• More serious offenses
• Maximum penalty of two or more years
• E.g., armed robbery, sexual assault, murder
• Election offences
• Accused may opt for jury
• Superior court exclusive
• Serious offences heard only in superior court
  (e.g. murder).

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Hybrid Offenses

• May be treated as either indictable or summary
• Prosecutor decides which option to take.
• Decision is based on context of the offence, the
  offender, etc.
• Sexual assault level 1

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Sexual Assault

• Level 1 (hybrid)
• Common sexual assault
• Summary- maximum 18 months
• Indictable- maximum 10 years
• Level 2
• Weapon, threats, harm
• Maximum 14 years
• Level 3
• Aggravated sexual assault
• Maximum life imprisonment

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Homicide

• First degree murder
• Planned, peace officer, during another crime
• Mandatory life imprisonment no parole for 25
  years
• Second degree murder
• Other intentional killing
• Mandatory life imprisonment
• Parole eligibility may be set between 10 and 25
  years
• Manslaughter
• Assault, criminal negligence, in the heat of
  passion
• Maximum of life in prison
• Infanticide
• Death inflicted on newborn by biological mother
• Maximum sentence is 5 years

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Amending the Criminal Code
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Anti-Gang Legislation

• Many amendments to Criminal Code in recent years
  have revolved around organized crime
• Criminal Code amended by Bill C-95 (1997) and
  Bill C-24 (2001)
• Created
• new offence participating in a criminal
  organization
• new legal definition of criminal organization
• Enhanced sentences for any criminal act that
  involves explosives

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Provincial Forays into Criminal Legislation

• Safe Streets Act (Ontario, 1999)
• Response to panhandling squeegee kids
• Limits soliciting Maximum fines from 500 to
  5,000.
• Up to six months in jail
• Remedies Against Organized Crime and Other
  Unlawful Activities Act (Ontario, 2001)
• Provides Ontario government with powers to sue
  criminals for their assets, even if not convicted
• Province argues that this law is in their
  jurisdiction because it goes through civil (not
  criminal) courts

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The Irony of Criminal Law

• Ironically, criminal laws actually create even
  more crime