CLU 3MI Student Notes Created by Ms. Beattie Page 1 UNIT 1: HERITAGE Chapter 1: Law, its Purpose and History Day 1: Law, its Purpose and History (pp. 3-6) - society is fascinated by law: TV programs, trials, court TV, books, films - Canada is a democracy - citizens elect law makers (politicians) who make laws to suit the majority of Canadians - the law is constantly changing to reflect changing values e.g. same-sex marriage legalized in the House of Commons during the summer of 2005 - games and organizations have rules, societies have laws: both necessary to keep peace and order - if Canadians don’t agree with a law, they can form a ‘pressure group’ or ‘lobby group’ and lobby the gov’t to change the law, raise public awareness organize demonstrations, and initiate court challenges - to enforce laws, society introduces punishments; the harshness of these penalties will depend on the values & customs of a society - e.g. stealing in Canada might result in suspended sentence, a jail sentence, or an alternative justice like a healing circle; in another society someone convicted of stealing might have a hand amputated - one important function of law is to settle disputes or disagreements, thru negotiations or the court - some laws establish rules of conduct e.g. Highway Traffic Act (sets minimum driving age, speed limits, drivers’ licencing, traffic laws) - law enforcement: police - criminal law is a branch of law dealing with illegal actions & their penalties - lawmakers are limited by ‘constitutional law’ : The Canadian Charter of Rights and Freedoms is part of our constitution (the Canadian Constitution, 1982) - contract law protects people in situations where they are asked to sign agreements Day 3:
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CLU 3MI Student Notes Created by Ms. Beattie Page 1
UNIT 1: HERITAGE Chapter 1: Law, its Purpose and History
Day 1: Law, its Purpose and History (pp. 3-6)
- society is fascinated by law: TV programs, trials, court TV, books, films
- Canada is a democracy - citizens elect law makers (politicians) who make laws to
suit the majority of Canadians
- the law is constantly changing to reflect changing values e.g. same-sex marriage
legalized in the House of Commons during the summer of 2005
- games and organizations have rules, societies have laws: both necessary to keep
peace and order
- if Canadians don’t agree with a law, they can form a ‘pressure group’ or ‘lobby
group’ and lobby the gov’t to change the law, raise public awareness organize
demonstrations, and initiate court challenges
- to enforce laws, society introduces punishments; the harshness of these penalties
will depend on the values & customs of a society
- e.g. stealing in Canada might result in suspended sentence, a jail sentence, or an
alternative justice like a healing circle; in another society someone convicted of
stealing might have a hand amputated
- one important function of law is to settle disputes or disagreements, thru
negotiations or the court
- some laws establish rules of conduct e.g. Highway Traffic Act (sets minimum
- criminal law is a branch of law dealing with illegal actions & their penalties
- lawmakers are limited by ‘constitutional law’: The Canadian Charter of Rights
and Freedoms is part of our constitution (the Canadian Constitution, 1982)
- contract law protects people in situations where they are asked to sign agreements
Day 3:
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The Divisions of Law (pp. 14-21) - law is divided into two basic types: substantive law and procedural law - substantive law (the substance of law) consist of laws that list the rights and obligations of citizens - procedural law (the process of law) outlines the steps to take to protect rights Substantive Law - is divided into public & private law Public Law - controls relationships between the gov’t and its citizens - includes criminal, constitutional and administrative law
Criminal Law - is a set of rules passed by Parliament - defines crimes (offences against society) & penalties for law-breakers - found in the Criminal Code , Controlled Drugs and Substances Act, and the Youth Criminal Justice Act - society is represented by a Crown attorney who tries to prove the charges against a defendant beyond a reasonable doubt
Constitutional Law - the Constitution Act, 1982 divides powers amongst levels of gov’t: federal, provincial and territorial Administrative Law - involves government agencies like liquor control boards and the CRTC, in charge of TV, radio and telecommunications
Private Law (a.k.a. Civil Law)
- outlines legal relationships between private citizens, and between people and organizations - its purpose is to manage the behaviour of persons & organizations in
conflict with each other & award damages to the wronged party - there is no Crown attorney (i.e. no R v. person) - there is a plaintiff (who initiates lawsuit) who is suing the defendant - the plaintiff’s lawyer must prove the defendant is at fault & caused damage
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- the judge hears both sides and makes decision after weighing evidence (the balance of probabilities)
- the same incident can result in both criminal & civil cases - private/civil law can be further subdivided into family, contract, tort, property and labour law
Family Law - deals with relationships between family members e.g. divorce issues Contract Law - deals with legal agreements e.g. broken contracts Tort Law - deals with wrongs between people e.g. malpractice or negligence Property Law - deals with anything that has cash value e.g. property rental Labour Law a.k.a. employment law - governs relationships between employers and employees
Criminal Law (a public law) Civil Law (a.k.a private law)
Types of offences criminal code offences against society e.g. manslaughter, assault
civil offences between persons or persons and organizations e.g. negligence, trespassing
Parties involved Regina vs. defendant plaintiff vs. defendant
Example case R. v. Smith Smith v. Walmart
Burden of proof & Standard of proof
Crown attorney must prove guilt beyond a reasonable doubt to judge or all 12 jurors
plaintiff must prove defendant is at fault on the balance of probabilities
Types of courts criminal courts: inferior & superior superior court = choice of judge or jury inferior court = judge only
civil courts: e.g. family, small claims; judges only, no juries; no lawyers for minor claims & offences
Penalties imprisonment or diversion programs: absolute or conditional discharge, suspended sentence, conditional sentence, deportation, fines
1) general damages 2) special damages 3) punitive damages 4) aggravated damages 5) nominal damages Other remedies: 1) injunctions 2) costs
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Day 4: The Early History of Law (pp.10-12) - the laws of ancient civilizations have had a great influence on the dev’t of Canadian law The Code of Hummarabi - Hummarabi was a famous king of Babylonia (now Iraq) about 3800 B.P. - he recorded 300 laws, known as the Code of Hummarabi, one of the most important and earliest of written laws - the laws were ‘codified’ = numbered and organized and by headings: family, criminal, labour, property, trade, business - retribution was important = for every crime a punishment: “an eye for an eye, a tooth for a tooth” - see excerpts p. 10 Moses and Mosaic Law - centuries later, Moses gave laws to Hebrew people, as set out in the Old Testament of the Bible i.e. the Ten Commandments - severe punishments e.g. adultery = stoning death - punishment included restitution = repaying victim - see excerpts p. 11 Roman Law - ancient Rome had first lawyers - Roman Empire ruled Europe from 100 C.E. to 500 C.E. - while Byzantium (now in Turkey) was the capital of the Empire, emperor Justinian (527-564 C.E.) codified 1000 years of Roman laws = Justinian Code - these laws emphasized equity: equality under fair and just laws Napoleonic Code - in 1804 Emperor Napoleon Bonaparte revised French law, which had been based on Roman Law and the Justinian Code - called Napoleonic Code or the French Civil Code - still the basis of law in many European countries and Quebec
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Day 5: The Development of Canadian Law (pp. 12-18) - in 1066 William the Conqueror imported a system of gov’t from Europe to England called ‘feudalism’, whereby the king owned all the land and divided it amongst his lords & nobles (his vassals – servants) who would give him loyalty and military service - the lords had vassals of their own to farm the land and pay a percentage of their produce to the lords and to the church - the feudal system forms the basis of our modern property laws - lords acted as judges until the king appointed travelling judges to hold trials called assizes - by the 13th century laws and regular punishments had been established and these decisions became the basis of English common law - the common law system was introduced to North America by the colonists Precedent - common law is based on the rule of precedent - a legal decision that is taken as a guide for subsequent cases - the rule of precedent is a.k.a. stare decisis - Latin for “to stand by earlier decisions”
- by treating similar cases alike, English judges developed a consistent law - court cases could be appealed to the monarch - today, lawyers and judges still refer to earlier decisions as precedents in coming to a verdict and sentence - thus, trial lawyers present earlier cases to the court to influence decisions Case Law - common law is often called case law because many cases in court are recorded and published - each recorded case is given a title, or citation, making it easy to locate - see p. 15 for examples The Rule of Law - in 1215 England’s King John was forced to sign the Magna Carta, the “Great Charter” (a list of legal rights) which recognized the principal of the rule of law: 1) general recognition that law is necessary in an orderly society 2) that the law applies equally to everyone, including the highest officials 3) that a person’s legal rights cannot be take away - it also guaranteed the right of habeas corpus: not to be held unlawfully for a crime and to appear before a court in a timely manner - in Canada, the rule of law brings order & prevents the use of violence in solving disputes and the abuse of human rights
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Parliament and Statute Law - around 1265 the first Parliament, of reps. from all parts of the country, was formed in England following a revolt by nobles against King Henry III - in 1689, Parliament passed the Bill of Rights guaranteeing free speech, free elections and freedom of assembly (when King James II tried to force Catholicism) - since that time Parliaments are seen as the institution that represents the people and their wishes, an important step in democracy Statute Law - the function of Parliament is to pass laws, called statutes - courts must consider both the common law and the statute law in making a decision - Canada’s substantive law includes 1) common law decisions made in courts and 2) statute laws (legislation) passed by gov’t (i.e. Parliament)
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Day 6: The Development of Canada’s Constitution (pp.19-20) - July 1, 1867 our first constitution was enacted by British Parliament: the British North America Act (BNA Act) - Britain still controlled our foreign affairs until 1931 when Britain passed the Statute of Westminster - in 1949 the Supreme Court of Canada became the highest court of appeal - to be truly independent of Britain we needed our own constitution so we didn’t have to go to the British Parliament for changes to the BNA Act - in 1982, after years of negotiation, a new constitution document was transferred to Canada - to make changes to the Constitution Act, 1982, requires the consent of the federal gov’t (Parliament) and 2/3 of the provinces with 50% of the population: this recipe is called the amending formula - the BNA Act was renamed the Constitution Act, 1867 and is still a main part of the Constitution Act, 1982, which also includes the amending formula and the Canadian Charter of Rights and Freedoms - the Constitution Act, 1867, divides the powers of the federal, provincial and territorial gov’ts - it outlines which gov’t has jurisdiction: the authority to make laws in specific areas How Laws Are Made in Canada - a law that the gov’t has proposed is called a bill; once it is passed by Parliament it’s called an act, or statute law - Parliament consists of the House of Commons, the Senate and the Gov. Gen. - each M.P. is an elected representative of a riding; there are now 308 ridings, and M.P.s in Canada - a bill goes thru 2 readings in the House, then goes to a committee for in-depth study and changes, then for a third reading in the House before it goes to the Senate for 3 readings and committee study; the G.G. signs the bill or gives a nod to give the bill royal assent and pass it as a law - provincial laws go thru 3 readings in the provincial legislature then to the lieutenant-governor for his or her signature - municipal by-laws concerning local issues are voted on by a mayor or reeve and an elected council Canada and International Law - international law governs relationships between the world’s 191 sovereign states (independent countries)
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-international law is based on 3 types of law: customary law, treaty law and resolutions Customary Law - customary law is formed from customary practices & recognizes the following basic principles: 1. sovereignty is a nation’s absolute right to govern itself - under international law all sovereign states are equal, regardless of size, etc. 2. new states gain recognition as sovereign states by being recognized by other countries e.g. Taiwan as separate from China 3. states are bound by international law only by giving their consent freely, not by intimidation or force 4. states must show good faith in the way they interpret & use international laws, with common sense and reasonableness 5. freedom of the seas: states cannot claim ownership of the high seas 6. international responsibility: states which commit wrongful acts may face criminal penalties and duty to compensate wronged party 7. self-defence: the Charter of the United Nations declares the threat or use of force against other states as unlawful; but states have the right to defend themselves 8. humanitarianism: respect for the interests of humankind, including disaster or famine relief Treaty Law - treaties are binding written agreements entered freely by states - bilateral treaties are between 2 states - multilateral treaties involve 3 or more states - types of treaties include charters, conventions and protocols - e.g. in 2001 Canada signed the Kyoto Protocol, to reduce emissions of greenhouse gases - treaties deal with the following matters: 1. territory, land and seacoast 2. diplomatic law and immunity - foreign diplomats are not subject to all laws 3. protection of nationals abroad - travellers entitled to life, liberty and property 4. extradition and asylum - states sign extradition treaties with each other, promising to return escaped suspects home for trial; without a treaty, a country can grant asylum (safe haven) to a foreigner 5. international trade - e.g. NAFTA, 1994, free trade agreement between Canada, USA & Mexico 6. arms control - aimed at preventing nuclear war; banning or reducing numbers of weapons
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Day 7: Resolutions (p. 26)
- in international law, resolutions are considered ‘soft law’ because they don’t have
the force of customary law or treaties & are not binding on the countries who vote
for them
- however, they are important because they can be adopted quickly & focus
international attention on an issue or situation that demands action
- they can also lead to future treaties
The Role of International Organizations: The United Nations (pp. 26 - 29)
- the United Nations was formed in 1945 at the end of WWII to promote peace and
international cooperation
- it now has 191 member countries (only Taiwan and Vatican City are not
members)
- the U.N. General Assembly passes resolutions by 2/3 majority vote by all
members
- resolutions carry strong moral authority only
- the U.N. Security Council is responsible for international peace and security & its
decisions are mandatory to its 15 members
- 5countries are its “permanent members”, the victors of WWII: China, France,
U.K., Russia and U.S.A.; these countries have veto power over all decisions; thus
any of these 5 countries can stop the Security Council from taking an action
- during wars, the Security Council tries to arrange cease-fires or to send a peace-
keeping mission of troops
- Canada has participated in almost all UN peacekeeping mission and Lester
Pearson won the Nobel Peace Prize in 1957 (several years before he became Prime
Minister of Canada) for bringing peace to Egypt after it seized control of the Suez
Canal and was invaded
- the UN Charter also allows the Security Council to impose sanctions against
nations, often economic sanctions that forbid trade with the warring country (for
example, the UN imposed trade sanctions against Saddam Hussein’s Iraq between
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1990 and 2002; many people suffered malnutrition and health crises because of the
lack of food and medicines during these years)
- the judicial arm of the UN is the International Court of Justice (ICJ), a.k.a. the
World Court, based in The Hague, Netherlands; it hears only civil cases
- the first world criminal court was the Nuremberg Tribunal established in 1945 to
try Nazi leaders for international crimes defined as: 1) crimes against peace, 2) war
crimes, and 3) crimes against humanity
- in 1993, the UN Security Council established an International Criminal Tribunal
in The Hague to prosecute war crimes committed in the former Yugoslavia and
Rwanda
- in 2002, the UN established a permanent International Criminal Court (ICC),
with 120 member states, also in The Hague, Netherlands
Alternative Dispute Resolution (ADR) (pp. 33-34)
- bogged down courts in Canada are more and more turning to ADR
- ADR uses the following methods, outside of court:
Negotiation: two parties communicate with each other until a decision is reached
Mediation: a third party (mediator) listens to the two parties in the dispute and
helps them come to a decision acceptable to both
Arbitration: a third party (an arbitrator) listens to the two parties and makes a
decision; often an expert, the two parties agree in advance to respect his decision
- ADR is a growth industry
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Chapter 2: The Rights and Freedoms of Canadians Day 8: Development of Human Rights and Freedoms (pp. 38-42) Rights and Revolutions: - many wars and revolutions had to be fought throughout history for the concept of human rights and freedoms to spread - natural rights: life, liberty and security thought to be independent of gov’t - human rights voiced in the 1776 American Declaration of Independence - U.S. Constitution became law in 1788, 5 years after the American Revolution ended, freeing the U.S. from British rule - in 1791, 10 amendments (changes) to the Constitution were made and the U.S. Bill of Rights was born - they are still the basis of freedom and civil rights for Americans - in 1789 the French people rose up to overthrow their rulers: the French Revolution - feudalism and the privilege of rulers and Church were abolished - also in 1789 the new French National Assembly passed the Declaration of the Rights of Man and of the Citizen, which became the basis of future modern democracies Abolition of Slavery: - in 1865 the 13th amendment to the U.S. Constitution abolished slavery forever, after the Northern Union forces won the American Civil War The Universal Declaration of Human Rights: - following WWII, world leaders formed the United Nations in 1945 - in 1948 the U.N. adopted the Universal Declaration of Human Rights which was signed by nations around the world - it was pioneered by Canadian John Humphrey - all future documents of human rights have been based on this document, including Diefenbaker’s 1960 Bill of Rights and Trudeau’s 1982 Charter of Rights and Freedoms
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Day 9:
Human Rights in Canada after WWII (pp. 44-47)
- Prime Minister John Diefenbaker’s gov’t passed the Canadian Bill of Rights in
1960, turning unwritten common law into written legislation of civil rights and
freedoms
- criticisms: it did not protect equality rights and only applied to federally-
controlled matters, and could be changed at any time
- P.M. Pierre Trudeau’s gov’t gave us our Constitution Act, 1982 which included
the Charter of Rights and Freedoms, guaranteeing civil rights and freedoms at
every level of gov’t
- as constitutional law, the Charter can’t be easily changed (without agreement of
federal gov’t, 2/3 of the provinces with 50% of pop. = the amending formula)
- thus, the rights and freedoms listed are entrenched (or part of the Constitution)
- anyone whose charter rights have been infringed (violated) can take it to court
- thus, the Supreme Court has increased importance
- the charter includes the “reasonable limits clause” (section 1), which limits
some rights and freedoms for the larger good, “as can be demonstrably justified in
a free and democratic society”
- Charter cases often determine what matters are ultra vires (outside the authority
of the gov’t to legislate) and intra vires (within the scope of the gov’t to legislate)
- the Charter includes the famous “notwithstanding clause” (s. 33): this clause
lets provincial and territorial gov’ts enact legislation, good for 5 years then
renewable, in spite of the fact or “notwithstanding” that it may violate the Charter
(though certain rights cannot be overruled by invoking this clause)
- e.g. Quebec’s French-only law on public signs allowable even after being
challenged in the famous Ford v. Quebec, 1988 case
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The Canadian Charter of Rights and Freedoms (pp. 50-59)
- Section 1 of the Charter is the “reasonable limits clause” which allows your rights and freedoms to be limited if there is a justifiable reason to do so “in a free and democratic society” - Section 2: “Fundamental Freedoms”; divided into 4 areas:
- Freedom of Conscience and Religion (limits can be imposed as long as they don’t break fundamental beliefs of the religion) - Freedom of Thought, Belief, Opinion, and Expression (limited by Criminal Code e.g. hate laws and censorship laws re: obscenity) - Freedom of Peaceful Assembly and Freedom of Association (the Criminal Code prohibits unlawful assembly– 3 or more people creating a disturbance that causes fear– and riots–at least 12 people & violence under the Riot Act)
- Sections 3, 4, and 5: Democratic Rights - including the franchise (right to vote) which can be limited on some grounds
- Section 6: Mobility Rights (the right to move freely from province to province or territory) - the provinces have the right to impose restrictions on mobility for economic reasons
- Section 7-14: Legal Rights - e.g. proceedings in criminal matters - Section 15 and 18: Equality Rights
- equality rights can be restricted if the controls are fair e.g. driver’s licence at a certain age only; however equality between the sexes cannot be limited as per Section 28
- allows for affirmative action programs (to improve hiring of disadvantaged in society) - Sections 16-22: Official Languages of Canada - two official languages of French and English; gov’t services must be bilingual - Section 23: Minority Language Educational Rights
- applies only to Canada’s two official languages: the right to have children educated in same language as parents; minority language education is offered if there’s sufficient demand
- Section 25: Aboriginal Rights and Freedoms - the Charter cannot interfere with treaty rights or land claims of “Indians, Inuit and Metis”
Resolving Infringements of the Charter
- if a court decides that a case comes under the Charter & that a right has been infringed (trespassed on), it must then decide if the restriction is “reasonable” for the good of the group (under section 1 of the Charter) - a law that limits a Charter right or freedom is “reasonable” if: (1) it enforces an important gov’t objective, (2) the restriction on individual rights is minimal and (3) the law is clear and sets exact standards e.g. (guidelines on what’s ‘obscene’) Solutions, or Remedies, under the Charter
- there are 2 ways of enforcing the rights and freedoms guaranteed by the Charter: (1) section 52 of the Constitution Act, 1982, allows courts to strike down a law if it breaches the Charter, and courts can also “read down” the law, meaning the law remains generally acceptable, but not in this particular case; and (2) you can apply to the courts directly if one or more of your rights and freedoms has been violated
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Day 11:
Human Rights Legislation & War Measures Act pp. (60-63)
- federal, provincial and territorial gov’ts have passed legislation to protect human
rights
- 1977 federal Canadian Human Rights Act came into effect - for matters under
federal control
- provinces have legislation like Ontario’s Human Rights Code which prohibits
discrimination in employment & renting an apt. & sexual harassment in workplace
- based on the Universal Declaration of Human Rights (UN 1948)
- human rights laws overrule any other prov. or territorial law
- constantly updated, expanded and adapted
- if your human rights are violated, you can file a complaint with a human rights
commission within 6 months of the incident
- “complainant” vs. “respondent”
- after an investigation, if the investigating officer cannot arrive at a solution,
conciliation takes place: both parties agree on a solution
- if conciliation fails, the gov’t will appoint a board of inquiry or tribunal to hear the
facts and impose a resolution
- each party can appeal the decision to the courts as a civil case
War Measures Act, Anti-Terrorism Act and Public Safety Act: read pp. 62-63
- these acts were legislated for public safety, but they curtail our rights and freedoms
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Native Peoples & Human Rights
- the native peoples’ approach to human rights is not to work towards collective
rights, not individual rights and freedoms
- collective rights focus on land and the right to self-government and come from
having occupied Canada for thousands of years as distinct First Nations
- the Royal Proclamation of 1763 established a legal framework for treaty-making
between native peoples and Britain
- the Royal Proclamation remains an important legal document and it is recognized
in section 25 of the Charter in Canada’s Constitution
- the Indian Act, first passed in 1868, legalized “assimilation”: the effort to ‘absorb’
native people into European Canadian culture and created “reserves”
- it also banned traditional cultural practices, self-government and native systems of
justice
- in 1951 the first native lobby group was formed to press the gov’t to settle land
claims
- since 1982 the Assembly of First Nations (AFN) has represented 630 native
communities across Canada on matters like treaty rights, economic development,
health, housing, justice and social dev’t.
- landmark Supreme Court decisions have been made concerning land claims and
treaty rights of the Nisga’a, the Wet’suwet’en and Gitxsan of British Columbia
[Homework Assignment: read about these cases on pp. 77-80]
The Rights of the Poor
- poverty is a barrier to equal opportunity and achieving equality
- Canada has many social and economic programs to help reduce poverty, including old age
pension, medicare (free health care), and welfare
- some people want to eliminate poverty by giving all Canadians a guaranteed annual income
(GAI): a set amount of money all Canadian adults would receive to ensure everyone had enough
money for necessities: food, shelter and clothing
- others think the gov’t should provide low-income housing
- one lobby group, the Campaign Against Child Poverty, objects to drug testing and literacy
testing & training for welfare recipients, because they see it as an infringement of human rights
and human decency
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Day 19:
Unit 2: Criminal Law
Chapter 4: Criminal Law and Criminal Offences
Introduction
- criminal law deals with offences committed against society; civil law deals with
offences committed against individuals
- criminal law helps keep order in society
- penalties help deter (prevent)people from committing crimes
- should criminal law also rehabilitate offenders? Some people think so
The Nature of Criminal Law
- Parliament decides what is a crime and regularly passes laws to change the
Criminal Code
- the Criminal Code reflects the values of society and its reform reflects a shift in
values & public pressure (e.g. pressure to decriminalize the use of marijuana)
- law makers, lobbyists, & the public debate issues like euthanasia (mercy killing),
gun control, abortion and pornography
- any reforms to the Criminal Code must take certain conditions, suggested by the
Law Commission of Canada:
1. the action must harm other people
2. the action must violate basic values of society
3. using the law to deal with the action must not violate other values
4. criminal law must significantly contribute to resolving the problem
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Day 20/21:
The Power to Make Criminal Law
- jurisdiction over criminal law is with the federal Parliament (section 91, BNA Act)
- the provinces and municipalities can pass “quasi-criminal law”, like the Highway
Traffic Act, which if violated result in a fine
- the Criminal Code is the main source of criminal law in Canada
- it describes offences and punishments for crimes
- other statutes passed by Parliament include the Controlled Drugs and Substances
Act
- the judiciary (judges) influences criminal law with their interpretations of laws
when applying them to specific cases and in making precedent-setting decisions that
will be followed by other judges for similar cases
Types of Criminal Offences
1. Summary Conviction Offences
- minor crimes, maximum penalty $2000 and/or 6 mo. in jail
- more severe penalty for the Controlled Drugs and Substance Act crimes where
possession of a narcotic is a $2000 fine plus 1 year in jail
2. Indictable Offences
- more serious crimes
- Criminal Code sets maximum penalty like life imprisonment for homocide
- some indictable offences have a minimum penalty judges must impose, like
impaired driving ($600 fine to 5 years imprisonment)
3. Hybrid Offences
- where the Crown Attorney has the right to proceed summarily (as in a summary
offence with a lesser penalty) or proceed by indictment (as in indictable offence with
a greater penalty)
- theft is an example of a hybrid offence
The Elements of a Crime
- two conditions must exist at the same time for a crime to be a criminal offence:
actus reus (in Latin meaning “a wrongful deed” and mens rea (“a guilty mind”–the
accused must be shown to have intended to commit an offence)
- the Charter states in section 11(d) that a person is “to be presumed innocent until
proven guilty according to the law” which means the Crown Attorney must prove
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both actus reus and mens rea both existed at the time of the crime & prove it beyond
a reasonable doubt
- if there is reasonable doubt in the mind of the judge and jury, the accused must be
acquitted and set free
- actus reus example: break and enter must include both breaking into a residence &
entering
- actus reus also describes the failure to do something, like providing your child with
the necessities of life
- mens rea exists if the offence is committed with (1) intent or knowledge or (2)
recklessness
- general intent can be inferred by carrying out an action
- specific intent exists when one crime leads to another (i.e. B&E leads to robbery)
- some people are incapable of forming the necessary intent due to mental illness, age
(children)or being drunk or ‘high’
- the reason for committing a crime is called “motive” but it doesn’t establish guilt
like intent does, only circumstantial evidence
- recklessness is the careless disregard for the possible results of an action and, if
proven, shows mens rea
- offences without mens rea are less serious than those found in the Criminal Code,
like speeding or polluting (regulatory offences: federal or provincial regulations
passed to protect the public)
- there are 2 types of regulatory offences where mens rea need not be proven: strict
liability offences and absolute liability offences
- to prove a strict liability offence, it is only necessary to prove the offence was
committed; the accused can put up a defence of due diligence meaning he or she took
care not to commit the offence or honestly believed in mistaken facts)
- an absolute liability offence has no defence and an offender is guilty if only actus
reus is proven; even if precautions were taken there is no due diligence defence;
therefore prison terms are unconstitutional
- a person can be found guilty of a criminal offence for attempt
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- a conspiracy is an agreement between two or more people to commit a crime and is
a criminal offence whether or not they carry out the crime
Parties to an Offence
- under section 21 of the Criminal Code, a person who commits an offence, aids
(helps) a person to commit an offence, or abets (encourages) a person in committing
an offence is defined as a party to a crime
- therefore, aiding and abetting is a crime
- under section 21(2) of the Criminal Code, a person who plans an offence is just as
guilty as one who commits it
- an accessory after the fact is someone who helps a criminal escape detention or
capture, including providing him or her with food, clothing or shelter (with the
exception of married spouses)
- the defence of duress can be used if you are forced to aid and abet or be an
accessory, i.e. at gunpoint or otherwise threatened
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Chapter 5: The Criminal Code
Day 22:
Introduction (pp. 126-127)
- the Cdn. Criminal Code is a federal statute that reflects social values, thus it
changes: some actions are removed to it, others added e.g. distribution of child
pornography on the Internet was recently declared criminal
- other social concerns of the 2000s: increasing penalties for maltreatment of animals,
establishing a sex offender registry; preying on children on-line
- about 80% of all criminal offences committed in a year are Criminal Code offences:
it identifies hundreds of acts considered criminal
- because it’s federal law, these offences are treated identically across Canada
Violent Crimes
- defined as offences that harm the body
- 13% of all Criminal Code offences are violent: homicide, assault, sexual offences,
abduction, and robbery
Homicide:
- killing another human being directly or indirectly is homicide and is a criminal
offence if it is “culpable” (deserving of blame) and includes murder, manslaughter,
and infanticide (baby-killing)
- non-culpable homicide is not criminal: caused by accident or self-defence
Read p. 128: Excerpts from the Criminal Code
Copy Figure 5-4: Types of Homicide p. 127
CLU 3MI Student Notes Created by Ms. Beattie Page 21
Day 23 (pp. 128-133):
Murder:
- murder is the most serious crime: intentional killing
- accused may be found guilty even without the intent to kill
- two classes of murder: first-degree and second-degree (s.231 C.C.): life
imprisonment for both
- first-degree murder occurs if one of the following exist:
• the murder is planned or deliberate
• the victim is a law enforcement agent
• death occurs while another crime is being committed
• the murder was caused during criminal harassment
• the murder was while using explosives as part of a criminal organization
• the murder was part of an indictable offence considered terrorist activity
- it is necessary to prove causation in order to convict a person with first-degree
murder
- second-degree murder is murder that is intentional, but doesn’t fit the above
categories
Manslaughter:
- manslaughter is causing the death of a human, directly or indirectly, by means of an
unlawful act
- is not murder, and requires only general intent
- the mens rea is that a reasonable person would recognize that the unlawful act could
harm or kill the victim e.g. dangerous driving
- sometimes murder charges result in manslaughter convictions, e.g. successful use of
defence of provocation (in the heat of passion, from an insult, resulting in loss of
control) or intoxication (too drunk or high to form intent); the killing must take place
during the loss of control
CLU 3MI Student Notes Created by Ms. Beattie Page 22
Infanticide:
- killing of a newborn by the mother; maximum penalty 5 years; caused by post-
partum depression or mental disturbance
Suicide:
- until 1972 was illegal to commit suicide
- still illegal to counsel suicide or help anyone commit suicide
- assisted suicide is a controversial issue; rejected by Supreme Court
Euthanasia:
- a.k.a. mercy killing: one person acts to end another’s life
- voluntary euthanasia (e.g. Sue Rodriguez) and involuntary (e.g. someone in coma)
- assisting suicide, voluntary euthanasia and involuntary euthanasia are treated as
homicide in the Criminal Code
- however, cases involving elderly, disabled spouses are often dealt with
compassionately by the courts
- those sound of mind have right to refuse treatment
- personal care directives can be signed in advance of being incapacitated directing
future treatment
- in absence of written instructions, the legal guardian or physician makes decisions
within the guidelines of medical ethics and human rights legislation
CLU 3MI Student Notes Created by Ms. Beattie Page 23
Day 24 (pp. 133-139):
Assault:
- 3 levels of assault in Criminal Code, classified as to severity, increasing penalties
- intent is a key element to all 3
- if the action is a result of carelessness or reflex, rather than intent, there is no assault
Level 1: Assault
• applying intentional force without consent, directly or indirectly
• attempting or threatening, by act or gesture, to apply force
• approaching or blocking way of another person, or begging, while openly
carrying a weapon, real or imitation
- harmful words are not an assault without a gesture
Level 2: Assault causing bodily harm
• committed by anyone who while committing an assault, carries, uses or
threatens to use a weapon, real or imitation, or causes bodily harm
• bodily harm is defined as anything that interferes with the victim’s health or
comfort in more than a fleeting way
Level 3: Aggravated Assault
- if a person wounds, maims, disfigures or endangers the life of the victim
- the mens rea required is only to commit bodily harm
Sexual Assault:
- the offences of rape and indecent assault were rewritten in the 1980s to emphasize
the violent, rather than sexual, nature of these crimes
- 3 levels of sexual assault, parallel to those of assault
Level 1: same as assault, but sexual in nature
Level 2: in committing a sexual assault (a) involves weapon, real or imitation (b)
threatens bodily harm to person other than complainant (c) bodily harm to
complainant (d) is a party to the offence with another
Level 3: aggravated sexual assault, (a) wounds, maims, disfigures or endangers life (b)
guilty of indictable offence with up to life imprisonment
- actus reus is the sexual touching
- mens rea is knowledge of no consent, recklessness or willful blindness
CLU 3MI Student Notes Created by Ms. Beattie Page 24
- consent is often an issue in trials (see Criminal Code excerpt p. 137)
- consent is not a defence if victim is under 14, unless the accused is less than 3 years
older
- the victim need not physically or verbally resist attacker (may be too scared to)
- intoxication cannot be used as a defence where it’s heavy
- spouses can be charged, any level
- the victim’s sexual reputation cannot be raised at trial, but evidence about sexual
activity can, as can personal records of the victim: medical, psychiatric, diaries, etc.
Answer p. 142 #11-13 in lieu of Days on sexual crimes, abduction and robbery
CLU 3MI Student Notes Created by Ms. Beattie Page 25
Chapter 6: Drug Use, Drinking and Driving
Day 29 (pp. 161-164):
The Controlled Drugs and Substances Act:
- enacted in 1997 (combined the old Narcotic Control Act and sections of the old
Foods and Drugs Act)
- the Act criminalizes possession of, and trafficking in, illegal & controlled drugs:
Schedule I lists the most dangerous drugs like heroin and cocaine
Schedule II lists cannabis (marijuana) and derivatives
Schedule III lists other dangerous drugs like LSD
Schedule IV lists controlled therapeutic drugs like barbiturates
- plus Schedule VII - cannabis resin and cannabis in amounts up to 3 kg
- plus Schedule VIII - cannabis resins up to 1 g and cannabis up to 30 g
- a person can be charged with possession for being in a group that is sharing a
“joint”, or owning the house where it’s being smoked
- intent must be shown, i.e. mens rea
- in 2001 it became legal for patients with terminal illnesses, chronic illnesses or
chronic pain to use marijuana, but they must carry an I.D. card
- marijuana possession was legal in Ontario for one year in 2001
(see R v. Parker, p. 165)
CLU 3MI Student Notes Created by Ms. Beattie Page 26
Day 30 (pp. 166-168):
The Controlled Drugs and Substances Act cont’d:
Prescription Shopping or Double Doctoring
- some people need controlled drugs for medical use
- others are addicted to these prescription drugs (e.g. Oxycontin = hillbilly heroin)
- it is illegal to engage in “prescription shopping or double doctoring”
- penalties increase from a fine of $2000 and/or 6 mo. with repeat offences
Offences Related to Trafficking
- according to the Act, to traffic is “to sell, administer, give, transfer, send or deliver
the substance”
- penalties vary, but trafficking Schedule I or II drugs can result in life imprisonment
- the Crown must prove trafficking with evidence like scales or cash (before 1986 it
was ‘reverse onus’ = accused had to prove innocence)
- several court cases have sent the message to police that they must not entrap drug
offenders (set them up to get caught)
- nor can police undertake random virtue testing (investigate an individual without
probable grounds
CLU 3MI Student Notes Created by Ms. Beattie Page 27
Day 31 (pp. 168-169):
The Controlled Drugs and Substances Act cont’d:
Importing and Exporting
- illegal, even to make arrangements to move drugs in or out of country
- penalties range from 1 year to life
Producing a Controlled Substance
- growing marijuana or producing a controlled substance is illegal unless authorized
to do so
- maximum penalty life for Schedule I drugs
Possession of Property Obtained by Certain Offences
- illegal to knowingly possess property obtained through the commission of a crime
Enterprise Crime and Laundering
- criminals ‘launder’ drug dealing money or property to hide the crime
- laundering is basically the movement of large amounts of money or transfer of
property gained through the drug trade
- since profits from the drug trade sometimes fund terrorism, since 2000 the
government has increased surveillance of money leaving the country requiring that
banks, lawyers, real-estate agencies, accountants and other financial institutions
report any cross-border transfers over $10,000 or other suspicious transfers
- one Day the there may be a court challenge of this requirement as it pertains to