test 3 law

CRIME AND CRIMINAL LAW

Criminal behaviour - why do people commit crimes

Theories on criminal behaviour

attempt to explain the roots of criminal behaviour

2 main categories

Historical theories

Contemporary theories

Historical beliefs on criminology

classical criminology

positivism

sociological theories

theory of anomic

marxism

Classical criminology

2 main theories: Cesare Beccaria (1738 - 1794) and Jeremy Bentham (1748 - 1832)

both believes that ultimately people commit crimes after weighing the benefits and possible consequences of their actions

the government was responsible for ensuring that criminal behaviour was clearly defined and that the consequences for such behaviour was strong enough to act as a deterrent from committing crimes

Positivism

started in the late 19th century

believed that the legal system was not a factor in criminal behaviour

instead, they though that criminal behaviour could be explained through biology and psychiatry

Cesare Lombroso (1835 - 1909) studied the cadaver of executed criminals to see if they were physically different than non-criminals

believed that the leal system was not a factor in criminal behaviour

later, positivists focused on studying DNA or the brain instead of physical features, but still trying to prove that people are born criminals

after the 1960’s, the notions that people are born criminals lost popularity

instead, theorists behan to look to the idea that criminals are made by their circumstances

however, brain studies have come back to looking at physical reasons we might be/become criminals

Early Sociological Theories - criminals are not born but made by circumstances

theory of anomic - Emile Durkheim (1858 - 1917)

believed that urban living caused traditional values and bonds to weaken

said that people living in urban areas were living in isolation - what he called anomie

the anonymity of living in a city led to people feeling as if they were no longer restrained by the norms of society and it was easier to turn to crime

Marxism - Karl Marx and Frederick Engels

believed that crime came from the competition for wealth and resources created by the capitalist system

the government more likely to define crime in ways that punished the poor more than the corporate elite

saw the justice system as one more tool used to protect those with power and property

Contemporary theories

Sociological theories

strain theory

socialization theory

Biological theories

biological trait theory

neurophysiological theories

Strain theory

believe that people commit crimes when they cannot get what they need through legitimate means

this is almost a cross between Marx and Durkheim

the belief is that one society puts access on acquiring wealth and power, but does not allow the education/resources to all people to achieve these goals

therefore, people who are disadvantaged turn to crime, esp. in urban settings

Socialization theory

social psychologists believe that crime is taught in a person’s upbringing

argue that criminal behaviour is influenced by parents, the circumstances of the criminal’s upbringing, peer groups/role models

Biological trait theory

positivist theory is being revisited and scientists are now studying traits such as intelligence, personality, chemical make-up, and genes

looking for physical predispositions to criminal behaviour

there is some evidence that poor nutrition and exposure to drugs in the womb could cause a person to become a criminal

Neurophysiological theories

some scientists are studying the brain to see if some neurological dysfunctions are connected to criminal activity

they believe that certain diseases or conditions, such as schizophrenia can lead to criminal behaviour

CRIME

Legal def’n: “whatever Parliament defines as crime”

Socio-legal def’n: wrongful acts that the State recognizes as deserving of control and punishment in the interests of society as a whole.

Under s. 91(27) of the Constitution Act, 1982

federal lawmakers have the sole authority to legislate in relation to criminal law

criminal offences differ from regulatory offences i.e. traffic + pollution offences (created by provincial and federal lawmakers)

CRIMINAL CODE

A statute, passed and amended by the federal Parliament outlining which actions are considered crime, how offences are prosecuted, and what penalties are imposed

Not the only federal statute to deal with crime i.e. Controlled Drugs and Substances Act

Most comprehensive statement of the law of crime and punishment in Canada

Applies in every Canadian province and territory

Regular amendments reflect societal concerns, emerging issues, preoccupations of the federal government

Patchwork changes made almost annually, not a fundamental overhaul... some offences that remain i.e. s. 365 prohibits the fraudulent practice of witchcraft

Judge-made criminal law

Code sets out offences, judges interpret them

Judges rely legal precedents to help them interpret provisions that are often ambiguous i.e. judges expand definitions of crime to cover behaviour not specifically addressed by the drafters of the Criminal Code, expand the concept of self-defence to incl. experiences of women who have been battered

Courts have struggled with the transmission of AIDS by a person who knows that he/she is infected should be criminalized - example of harm-causing activity not covered by the Code: knowingly transmitting HIV during an otherwise consensual sexual contact. Provisions of the Code applied: s. 365(1) (a), (2), (3), 268(1)

Purpose of criminal law

Labelling, identifying, sanctioning wrongful behaviour achieves 2 purposes:

- retribution, protection of society

Label wrongful behaviour, identify violations, impose sanctions (penalties)

Retribution

public denouncing and punishing wrongful behaviour

meant to affirm social values and deliver ‘justice’

focus: provide a fitting response by society to wrongdoing (meaning that the criminal law should punish and denounce in a way that respects the rights and liberties of an accused person, should be fair)

Protection of society

concern: making society safer for the future by deterring future wrongdoing and by rehabilitating wrongdoers

focus: public security + preventing crime

question is how far the protective principle extends in justifying a state’s use of the criminal-law power... principles of justification:

private harm principle: the prevention of harm to individuals

public harm principle: the prevention of harm to public institutions and practices

offence principle: the prevention of offence to others

legal paternalism: the prevention of harm to the self

legal moralism: the prevention of immortality

criminal law should prevent and punish the infliction of physical harm

subjective: harmfulness of certain behaviours, enforce morality (whose morality should it enforce), what is harm either private or public

Trudeau’s meaning when he drew a distinction between crime and sin:

Crime - for the police, in the business of the lawmaker/police

Sin - a problem for each person’s conscience or his priest or his God but not for the police. Not in the business of the lawmaker/police to check i.e. homosexuality, prostitution

Areas of morality that I believe that the State should control through its criminal laws:

no, the State should not control morals. The State does not have a place in the bedrooms of the nation. Brothels are for satisfying the needs of human beings. Homosexuals should be allowed to be themselves and choose what they would like to pursue what they want in privacy. The government should not restrict people from making their own decisions. People should be able to conduct their business in private without the government interfering. Punishment as a deterrent is not effective to change people’s morals

Judges should not extend the criminal law to respond to new social problems. Even though parliamentary responses may take some time (longer than a judge-made decision might), there needs to be agreement on decisions that are influential. Emerging issues should be debated before an individual, an judge, determines how the issue will be resolved.

Elements of an offence

The Crown must prove beyond a reasonable doubt that every element of the offence with which the accused is charged was committed by the accused to get a conviction. Criminal offences made up of 2 basic elements: A prohibited act, M criminal intent

ACTUS REUS

the wrongful act or omission (failure to act) in a criminal offence

identified by Parliament as sufficiently harmful to warrant state intervention

easy to identify the actus reus of a crime by reading the definition of the offence set out in the Code

most criminal offences require that the accused take some action i.e. applying force, stealing, possessing

some provisions make it a criminal offence to fail to act in circumstances where a duty to act exists i.e. parents failing to provide “necessities of life” for their dependent children may lead to criminal liability

must be voluntary - the conscious choice of an operating mind. People not criminally responsible for actions that they cannot control.

MENS REA

the blameworthy mental element in a criminal offence (act must be done with a “guilty mind”)

idea that mere commission of the prohibited act is insufficient for criminal liability

sometimes, specific mens rea have to be established to convict an accused

some provisions use no mens rea words; thus, judges’ interpretation of the language of the Criminal Code in their decisions determined much of the law on mens rea

Rules of Criminal Procedure

Crime Scene Investigation

police’s role in the initial phase of criminal investigation important; responsible for investigating crime scenes, collecting and securing evidence

strength and integrity of ensuing criminal procedures depend on the competence of police officers during the investigative stage

lapses can contaminate the proceedings that follow and result in miscarriages of justice

The Crime Scene

residence of a suspect or a location in which a crime occurred: often source of physical evidence

scene must be secured so evidence is not lost or tampered with: heavy responsibility on the officers who arrive first at the scene

first officers: must determine the boundaries of the crime scene, take steps to protect the area from accidental/intentional contamination

police officers: have the authority to cordon off and refuse entry to a crime scene under s. 129 of the Criminal Code also provides for the arrest + punishment of any person obstructing a police officer in the lawful execution of his/her duties

officer in charge of the investigation: determines the point at which a crime scene may safely be removed from police control UNLESS the incident involves death

in this case, the coroner has authority over the security of the scene

The Coroners Act: police officers and others acting under their control allowed to seize anything relevant to the investigation at the crime scene and to maintain the security of the scene until it is ordered released by the coroner after the post mortem examination

Processing the Crime Scene

after police secure crime scene, collect physical evidence [some identifiable, other evidence requires experts to interpret

identification officers trained to analyze physical evidence investigate the crime scene [collect evidence, photograph the scene, prepare diagrams/sketches]

police departments have procedures for the seizure, handling, and storage of evidence designed to safeguard the continuity of evidence [continuous chain of possession designed to ensure the safekeeping of evidence]

Processing physical evidence

forensic scientists examine, test, and analyze physical evidence gathered at crime scene to put it together correctly

Fingerprints

along with DNA, best way to identify a suspect

never change, unique to each person

3 types of fingerprint patterns: arches, loops, whorls

latent fingerprint: invisible, requires the application of chemicals or laser light to see it; oil and perspiration left on a surface

visible impressions: results from finger’s contact with a surface where there is already blood, dust, or grease

moulded fingerprint: a visible impression left in a soft substance i.e. wax, clay

fingerprints sent to a central repository administered by the RCMP in Ottawa

determine the individual’s identity: experts examine characteristics of each print, try to match a sufficient number of characteristics [10-12 points of comparison] to form an opinion on if the print submitted by the police is the individual whose prints are on file [from a previous arrest/conviction]

Trace elements

minutest quantities: dirt, dust, residue

origin of these element may link a suspect to a crime ex. fluid used to start fires found in the garage of a suspect; both samples mixed in same proportions + not sold by any manufacturer

transfer of trace element between perpetrator and victim i.e. hair, fibres

hair: may reveal racial background [root, shaft, tip], person’s blood type [root]

fibres: point of origin/manufacturer

Blood

paramount in value as evidence in impaired-driving cases [offence based on percentage of alcohol in suspect’s blood]

relevant in cases where a suspect’s mens rea is an issue because ingested intoxicating substances

as a fluid, conforms to the laws governing the motion and properties of fluids; shape - indicate movement, spatters on wall - force + direction of travel

Gunshot residue

GSR: trace substances left on surfaces after the discharge of firearm i.e. gases, primer components [lead, barium, nitrates]

trace elements are deposited on hands, and are sometimes, detectable and identifiable

now use SEM test for testing GSR; providing results that are more accurate + consistent than the handwash test

DNA

all human beings have an unique genetic code within their 46 chromosomes that are made up of DNA from which genetic information can be taken

lab analysis of semen, saliva, skin can lead to the identification of an individual through his/her distinctive genetic code [certainty exceeding one in several billion]

DNA testing used to rule out suspects, reliable

Impact of the Charter on Police Powers

challenge for the rules of criminal procedure: balance efficient enforcement of the law with the protection of individuals

some think entrenching the Charter shifted balance in favour of individual rights but constitutional rights are not new

common law: police powers limited

writ of habeas corpus: ancient common-law remedy to test the legality of detention/imprisonment

under the Charter, courts have the power to enforce compliance with constitutionally guaranteed rights and freedoms

Charter proclaims, guarantees rights and provides a remedy when these rights are violated

s. 24(2) gives courts a new power; the discretion to exclude evidence from the trial of an accused person [courts must decide if illegally obtained evidence is excluded, evidence not exclude automatically, depending on if the administration of justice would be brought “into disrepute” by its admission]

The arrest power

arrest: involves the physical taking of a suspect into custody

legal definition: includes touching with a view to detention and/or using words to which a suspect submits

may take place with or without the authority of a judicial warrant

may be made by police officers or private citizens [limited circumstances]

purpose: compel an accused person’s appearance at trial

Indictable conviction: a serious offence under the Criminal Code, prosecuted in a manner more complex and carrying penalties more severe than a summary conviction offence i.e. murder

Summary conviction: less serious i.e. causing a disturbance

Hybrid offence: prosecuted as either an indictable or a summary conviction offence at the discretion of the Crown [Crown chooses a proceeding of “by indictment” or “by summary conviction”] “dual procedure” offences that cover a range of activities from relatively trivial to extremely serious i.e. assault

Criminal Code contains provisions for the arrest of suspects under judicial warrants. Warrants issued after a police officer lays an information before a justice of the peace that sets out reasonable and probable grounds to believe that an offence has been committed; to obtain a warrant

Arrest and the Charter

section 9+10 of the Charter added a constitutional dimension to the arrest process

both provisions apply to individuals who have been arrested or detained

rights guaranteed by ss. 9 and 10 are triggered in a wide range of investigative circumstances i.e. roadside screening, border search

arrest and detention are infringements of individual liberties, both the Charter + the Criminal Code recognize that any infringement of liberty by the police must be justified... Code uses “reasonable grounds” and the Charter guarantees the right to be free from arrests/detentions that are “arbitrary [all subjective]

challenging investigative issue: racial profiling; OHRC launched an inquiry into this practice relying on racial stereotypes rather than reasonable suspicion to single out persons for greater scrutiny in law enforcement

The Search Power

police powers of search and seizure authorize the police to do what individuals in ordinary circumstances are forbidden from doing

power to search: an essential tool for police in the investigation

successful prosecutions require evidence and evidence are obtained from a search

searches: explicitly authorized by statute or common law; police do not have the right to search an ind. or a place hoping to find evidence

statutory power to search s. 487 of Criminal Code: needs prior authorization for specified searches where reasonable grounds exist

key elements: requirements of just cause for the search, judicial authorization of the search, and specificity of objects to be searched for

these requirements focus of the courts’ interpretation of s. 8 of the Charter which guarantees the right to be free from “unreasonable search or seizure”

exception to the requirement of prior judicial authorization: power of search incidental to arrest [search following an arrest that must be conducted to achieve a valid purpose connected to the arrest to be lawful - not unlimited power]

main purpose of search incident to arrest: 1. Ensure safety of police and public 2. Protect evidence from destruction 3. Discover evidence

Ensuring the Accused’s Appearance in Court

reluctant to incarcerate individuals before trial b/c of the system’s fundamental commitment to the presumption of innocence; being charged with a criminal offence not sufficient to take away of a person’s liberty

process used to ensure the accused’s attendance at court varies with the nature of the offence charged, whether a warrant for arrest exists, whether an arrest without warrant has been made, whether there are reasons to detain the accused in custody

procedural options:

appearance notice: issued by a police officer where no arrest is made [*]

summons: issued by a justice/judge after an arrest is made [ensure attendance]

promise to appear//recognizance: issued by the officer in charge of a police station after an arrest... agreement by the accused to appear in court at a stated time and place // promise that the accused will pay a certain amount of money if he/she fails to appear

More serious indictable offences: detained in custody to await a judicial interim release or bail hearing [up to Crown to prove the detention in custody is necessary]

Method of Trial

2 courts that hear criminal trials in Ontario

Ontario Court of Justice

a court of inferior jurisdiction - provincially appointed judges

Ontario Superior Court of Justice

a court of superior jurisdiction - judges appointed by the federal government

Terms, inferior and superior, reflect the nature of the jurisdiction exercised by the courts - the types of offences and the nature of the trial process they have jurisdiction to try / supervise

Method of trial depends on the type of offence

summary conviction offence and hybrid offence the Crown elects to proceed summarily: tried by Ontario Court of Justice

indictable offences’ seriousness matters: most serious ones are within the exclusive jurisdiction of the Ont. Superior Court... least serious ones “” of the Ont. Court...

Only a Superior Court judge can preside over a jury trial, all trials in the Ont. Court of Justice conducted before a judge alone

accused persons charged with indictable offences are entitled to a preliminary inquiry in the Ontario Court of Justice [held to ensure there is sufficient evidence to commit the accused for trial before the Ont. Superior Court of Justice

pre-trial conference: attended by a judge, a Crown attorney, the accused or the accused’s lawyer to promote a fair expeditious hearing before the start of proceedings, mandatory in all jury trials

Crown Disclosure

objective of the pre-trial phase to ensure fairness and efficiency

Crown prosecutors obligated to promote fairness in dealings with accused people because in most cases, resources available to the Crown exceed those available to accused people

for fairness, Crown required to disclose all relevant information to the accused before trial including all incriminating and exonerating evidence

full disclosure by the Crown protects the accused’s constitutional right to make full answer and defence in a “fair and public hearing” under s. 11(d) of the Charter

The Criminal Trial

Criminal Trial Principles and Processes

how a society tries an individual accused of a crime is a measure of its core values and its criminal justice system

criminal trial reflects societal notions of fairness and due process

puts a public face to the legal system

identifies the circumstances under which it is acceptable to take away the most important civil right *the right to liberty

principles underlying all criminal trials in Canada

principles intended to guarantee fairness and to strike a balance between the power of the state and the civil liberties of the accused

Rule of law

individuals can be punished only for breaches of the law

requires that the law be easily found by citizens who can then choose to act or not according to its dictates

all citizens are equal before the law [law - only legitimate authority for the exercise of power]

Specific allegation

accused persons are entitled to know the Criminal Code offence they are charged with, and what specific circumstances are alleged to make up the offence

this information allows them to prepare for trial

Case to meet

a case for the Crown that is sufficiently strong to support a conviction

accused people need not respond to an allegation of wrongdoing, cannot be made to answer for their conduct until the state presents a plausible case against them

the requirement for presenting a case to meet has procedural implications:

the state/Crown always presents its evidence first in a criminal trial

the state bears the burden of proof; the Crown must convince the court that the accused should be convicted

the state cannot compel the accused to testify as a witness against him- or herself. The accused has the absolute right to remain silent, can choose to testify in own defence

Presumption of innocence

the Crown must prove its case beyond a reasonable doubt [before punishment], the accused is entitled to an acquittal if there is not

Open and public trial

criminal trials must be open to the public and to the media

a reasonable person observing a trial should perceive it as fair and unbiased

justice must be seen to be done

Independent and impartial adjudication

judges and jurors must be impartial, have no personal interest in the outcome of a trial. Jury as well, if present. The jury selection process to ensure this.

Criminal Trial Process

most criminal trials held before a judge, without a jury. Judge then decides on the facts and the law, makes findings of fact, applies existing law to findings. When law is unsettled/unclear, judge will make legal findings. Otherwise, use facts

the Crown present its evidence first [due to the presumption of innocence]

then, the defence can ask for a directed verdict of acquittal [request based on if the Crown’s evidence is sufficient]. Trial judge must determine if a reasonable person could find the accused guilty. If not, the case is dismissed. Mostly unsuccessful.

if the Crown presents a case to meet, the defence may produce evidence that raises a reasonable doubt about whether the accused committed the offence [judge listens to both sides and decides which facts have been proven]

burden of proof rests with the Crown, judge’s primary task: to assess sufficiency of the Crown’s case i.e. are the witnesses credible? Is the forensic evidence convincing?

the accused is entitled to an acquittal if a reasonable doubt exists as to any of the elements of the crime at the end of the trial

The Jury

people charged w/ certain serious indictable offence have the option of trial before a judge and a jury

in a jury trial, jury the fact finders

jury: 12 members chosen by the Crown and the defence

early stage of the jury selection process, the generation of the jury array, is governed by provincial legislation

next, empanelling a jury [groups of potential jurors are convened for selection]

jury array may be challenged only on grounds of partiality, fraud, or willing misconduct by the sheriff

jury, after being instructed by the judge about the law, applies the law to the facts

trial by jury: an essential part of the criminal justice system, a constitutional guarantee protecting individual rights

Jury Challenges

both sides have a statutory right to challenge potential jurors

purpose of challenges: create an impartial jury, to give both sides equal opportunity to participate in its selection

potential jurors can be challenged in 2 ways:

peremptory challenge [reject a potential juror without giving a reason; equal number given, made on basis of minimal information i.e. name, job, address]

challenge for cause [gives reason - grounds justifying a challenge for cause i.e. prior knowledge of/association with a party involved in the trial, exposure to media coverage of the case, person’s personal characteristics ... gender, race]

Evidence

way for both sides to reconstruct the legally relevant parts of a criminal act

intended to tell the court a story so that the facts of the case can be determined by the trier of fact [judge/jury] and a judgment can be delivered

rules of evidence ensure that the fact-finding process is fair and reliable

only relevant evidence is admissible

First, a witness tells his/her story to the court in examination in chief [oral examination of a witness by the lawyer who summonsed the witness to testify]

Then, subjected to cross-examination by the opposing lawyer to challenge a witness’ credibility and the reliability of the evidence

Eventually, the trier of fact determines which facts are ‘true’

Rules of evidence

designed to prevent the trier of fact from being misled i.e. hearsay: witness cannot testify about indirect knowledge

law of evidence concerned with the exclusion of evidence, there are 2 kinds of exclusionary rules

first rule: to ensure only reliable evidence is admitted i.e. hearsay

second rule: to promote fair trials and the proper administration of justice i.e. evidence obtained in violation of Charter right is inadmissible if it will bring the administration of justice into disrepute

Voir Dire

held when a question about admissibility of evidence arises in court

if the main proceedings incl. a jury, the jury is removed for voir dire [judge remains]

if the evidence is deemed admissible, the jury can consider it. If not, the jury will not be told of the evidence.

Defences

The accused is entitled to raise a defence; 2 types of defences

Negativing defence

a defence that raises a reasonable doubt about whether the accused committed the offence charged (the actus reus of an offence/had the necessary mens rea to support a conviction)

a defence that negates an essential element in the Crown’s case

Affirmative defence

admits that the Crown has established the elements of the offence but claims that the accused’s criminal act was justified in the circumstances/that the accused should be accused from punishment because criminal conduct was the only reasonable option (defence that justifies the accused’s criminal conduct)

NEGATIVING DEFENCE

Mistake of Fact

accused persons mistaken about the factual context in which an alleged offence was committed may not possess the mens rea required for an conviction

appears most often in sexual assault cases; accused people claiming they believed the sexual contact to be consensual has a potential mistake-of-fact defence

courts ruled that a mistaken belief must be honestly held to negate mens rea

don’t have to be reasonable, but the more reasonable the mistake, the more likely the trier of fact will believe that the accused actually made a mistake

a defence that negatived mens rea; mens rea subjectively measured - question was what was in the mind of this particular accused, not what should have been in the mind of a reasonable person in the same circumstances

Mental disorder

individuals with certain mental disorders have their ability to understand the nature/consequences of their criminal behaviour affected but society needs to protect itself

defence of mental disorder: identify individuals who might pose a continuing danger to society

accused people found to be not criminally responsible (NCR) is not simply acquitted, a verdict of “NCR on account of mental disorder” is imposed

Once the NCR verdict is imposed, the court/a special review board decides on how it can best deal with the NCR acquittee [a person found NCR at trial]. Focus on whether treatment is needed and whether the acquittee’s freedom must be restricted for public safety

for many years, mentally ill people have been stereotyped as inherently dangerous. Canada’s criminal law subjected mentally ill offenders to indefinite detention based on perceived risk, new provisions of the Criminal Code ensure the NCR acquittees are treated fairly and not incarcerated unless there is a reason to suspect they present an ongoing risk to the community

Automatism

fundamental principle of criminal liability: voluntariness

for accused to be found guilty, the actus reus of an offence must be committed voluntarily [conscious choice of an operating mind]

criminal law doesn’t hold people responsible for action they cannot control

examples of voluntariness principle [defence of automatism+mental disorder]

automatism: a state of impaired consciousness rather than unconsciousness in which an individual though capable of action has no voluntary control over that action - could led to a finding of not guilty

recognized in cases involving stroke, psychological trauma, a severe blow to the head [sleepwalking in R v. Parks]

Intoxication

results from personal choices, unlike conditions of mental disorder/automatism

public/society not entirely prepared to excuse individuals for committing offences while intoxicated, but accepts that alcohol/drugs may adversely affect behaviour

courts’ rule to deal with intoxication: divide offences into 2 categories - general intent and specific intent

intoxication can only be used as a defence for specific intent offences, use evidence of intoxication to establish that the accused didn’t have the specific intent to commit the offence [too intoxicated to be able to form the specific intent]

if this evidence raises a reasonable doubt about the required mens rea, the accused is acquitted of the specific intent offence

legal distinction between specific and general intent created by judges and has served the law well: an individual can be too intoxicated to anticipate cause and effect and the future, but still be able to understand what he/she is doing and perceiving in the moment

evidence of extreme intoxication equivalent to automatism is admissible in general intent offences

AFFIRMATIVE DEFENCES

Self-defence

provides a justification for the reasonable use of force in certain situations

include defending oneself against an assault and defending one’s property against trespass

claiming self-defence is asking to be completely excused for otherwise criminal activity; society is willing to do so, but only if their behaviour is objectively reasonable

issue: whether the fear that motivated the defensive action is reasonable [immediacy of the threat a way of answering that question]

s. 34(2) of the Criminal Code, 2 requirements of self-defence: threat is imminent, no alternative to the defensive action is possible

Compulsion

excuses individuals whose criminal conduct is compelled by threats and who have no realistic choice but to commit a criminal offence

if successful, lead to acquittal like self-defence

s. 17 in CC, its use is restricted

2 requirements: immediacy, presence - must be subjected to serious threat by a person who has the present capacity to act on the threat [suggested these requirements are unfairly restrictive and breach s. 7 of the Charter - “the right to life, liberty and security of the person”]

there is a list of offences the defence of compulsion is unavailable

common-law defence of duress also available to excuse criminal acts compelled by threats [excludes no offences]

Sentencing

for most offenders, it is “the only significant decision the criminal justice system is called on to make”

important in the public’s perception of justice: reflects social value, exposes conflicts in the purposes and principles of the criminal justice system + communities

Plea bargaining

the accused pleads guilty in exchange for a lesser charge and a recommendation for a lighter sentence from the Crown

potential sentence used as a bargaining tool

accused exchanges the presumption of innocence for some certainty over conviction and sentencing

avoid public exposure, delays, stress, high legal costs of a trial

saves times, money, frees up courts for most serious offences

more than 80% of all criminal charges disposed through plea bargaining

efficient, necessary, routine

defence lawyer allowed to bargain once: client voluntarily admits the necessary elements of the offence and instructs lawyers into an agreement... however, “the public interest in the proper administration of justice should not be sacrificed in the interest of expediency”

can be controversial when concerning acts of violence and murder

belief: defence lawyers know the pressure on prosecutors to resolve cases quickly and keep the justice assembly line moving. Prosecutors encouraged to avoid clogging the courts with the less serious cases even when they have to accept sentences they feel is too light

justice “up for negotiation”: government’s goal to prevent backlogs, prosecutors aim to resolve 90% of charges without going to trial

Sentencing

the judicial determination of a legal sanction to be imposed on a person found guilty of an offence

sentencing hearing always held to help the judge determine a just sentence for the particular offender + the particular offence

sentencing has 4 aims:

denunciation (label, condemn unacceptable behaviour)

deterrence (prevented offender from committing other offences/deterring others committing crimes)

separation (protect the public)

rehabilitation (train, treat offenders)

conflict between the interests of the state and the individual being judged

denunciation, deterrence, separation: serve state interests by protecting society from dangerous offences

rehabilitation: serve needs of the offender

sentencing an exercise of judicial discretion: judges free to determine a sentence

Criminal Code provides minimal guidance by setting a maximum term of imprisonment for offences

judges decides the types of sentence (custodial/in the community) and its quantum (length of prison term + probation order, fine amount)

exception to the principle of judicial discretion: offences carrying a statutorily prescribed minimum penalty [period of incarceration/fine]

judges must impose at least the minimum

the number of offences with mandatory minimums have increased dramatically; legislators use the mandatory minimum to send a message to the public they have a strong position on a serious issue

The sentencing hearing

after individual is found guilty, court determines a fit sentence

the time period after a finding of guilt varies; can be immediately or longer for lawyers to gather evidence and develop arguments about an appropriate sentence

less formal than trials, rules of evidence relaxed

main source of information: the pre-sentence report - report prepared by a probation officer describing the offender, the offence, and could recommend a sentence [include observations of the offender’s background, family situation, education, attitude, info about offence, assess type of sentence appropriate]

victim impact statement can by filed - a verbal/written statement given by a victim/victim’s family to describe the personal consequences of the crime [emotional + physical impact of the crime for the court to consider in sentencing]

Sentencing options

judges decide the sentence for those found guilty [within their discretion except offences with mandatory minimum penalties]

sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender

judges choose from these alternatives: absolute and conditional discharges, probation, fines, intermittent sentences, conditional sentences, imprisonment

Absolute and conditional discharges

Absolute discharge: a sentence that frees the offender with no conditions and no criminal record

Conditional discharge: frees with no criminal record, but with court-ordered conditions i.e. reporting to a probation officer, abstaining from alcohol, attending a program, etc

offender can request discharge only if offence does not carry a mandatory minimum or a maximum penalty of 14 years or life

discharge must not go against the public interest

often requested for immigration or employment reasons because people with criminal convictions may be denied professional certification

offender who receives a discharge can answer no to question about a criminal record or a previous conviction because deemed no to have been convicted

if asked whether he/she has been found guilty, person should answer yes

Probation

can be combined with fines, imprisonment, and part of suspended sentences

probation orders allow correctional services to maintain jurisdiction over offenders who are at liberty in the community

orders often carry conditions intended to integrate and rehabilitate offenders

orders have mandatory conditions that require the offender to:

keep the peace, be of good behaviour

appear before the court when required

notify the court/probation officer before changing name, address, job

optional conditions [comply with other reasonable conditions to secure the offender’s good conduct and prevent the commission of another offence]

perform community service

support dependants

participate in a treatment program/abstain from alcohol or drugs

Fines

monetary penalties judges impose for less serious offences [summary conviction]

1996 Criminal Code amendment to fine provisions

judges must consider the offender’s financial situation [fine’s impact determined by financial status, not blameworthiness - prisons full of people who are poor not dangerous]

more payment options: extended schedules, garnisheeing wages [taking money directly from a defendant’s wages under court order], fine option programs - offenders work off a fine at a statutorily prescribed rate instead of paying cash

Intermittent sentences

impose these sentences for offences with short mandatory minimum sentences

imprisonment sentences of 90 days or less to be served intermittently

can order offenders to serve custodial sentences in parts so judge can ensure that the offender keeps a job, continues with education, can support dependants i.e. serve 2 days on weekends for 20 weeks - 60 days

when not in custody, offenders are subject to probation orders

Conditional sentences

part of 1996 reform, allows judges to order a prison term of less than 2 years to be served in the community [condition - safety of the community would not be endangered]

supports the objective of reducing the use of incarceration

incarceration: last resort for the worst crimes, mot dangerous offenders when no other reasonable alternatives exist

subject to the conditional sentence order similar to probation i.e.house arrest which can include electronic monitoring [a device/system that ensures an offender follows a court order; usually used to regulate home confinement/house arrest]

conditional sentence allows judges to denounce criminal conduct by imposing a prison sentence, realize incarceration is unnecessary with non-dangerous offenders

Imprisonment

harshest punishment + incarceration rate high - second/third in the Western world

reforms, demographic changes and other factors have caused it to fall

sentence of less than 2 years: provincial institutions

longer sentences: federal penitentiaries

many view imprisonment as the appropriate response to criminal behaviour

some do think it is an effective response; observe prison makes people more dangerous, and prison cannot rehabilitate or promote moral reform