Today’s Lecture

Criminal Law:Basic Concepts and Procedure

Purposes of Criminal Law

Establisment of

minimum standards of behaviour

Punishment

(Tort-style payment is insufficient)

Purposes of Criminal Law

deters against harmful behaviourpromotes order

protects economic interestspromotes moral views

Limits of legal moralism“Hart-Devlin debate”

Is there a private realm that is not the law’s business?

Should Criminal Law be concerned with issues where moral standards change?

“There's no place for the state in the bedrooms

of the nation” – Prime Minister Trudeau

Power and Moral Values

Who decides what is moral?

Consider criminalization ofMarijuana

Prostitution

Importance of “Fault”

Two elements of a crime:

1. Actus reus (physical element)

2. Mens rea (mental element)

Overview of criminal procedure

� “prosecution”, and “defendant” or “accused”

� Government is the prosecutor. in Canada, “Crown”

� Crown’s responsibility: to advance the public interest

� Different from private law, where expected each side will fight tooth and nail for their interests

� If present, jury is the finder of facts, and judge is finder of law

� If no jury, judge has both roles, and is responsible for sentencing

Criminal Procedure� Similar to private law (contracts, torts), but more rooted in

tradition

� Notice requirement -> charges read in open court

� Discovery in private law -> Disclosure in criminal law

� only disclosure by Crown

� R. v. Stinchcombe, 1991 SCC: Accused has right to full disclosure

� Parties are the Attorney General (the Crown) and the Accused

� Two kinds of offences: Summary conviction offences and Indictable offences

� summary: less serious offences; maximum 6mo and $2000 fine

� Indictible offences: up to minimum life sentence with no parole for 25 years and any amount of fine

Summary Procedure� Defendant brought before a judge in Inferior Court; “information” is read

� Plea – guilty or not guilty

� If pleads not-guilty then trial at provincial inferior court

� Crown bears burden of proof beyond a reasonable doubt

� Calls witnesses and to prove case: “examination in chief”

� Defence can “cross-examine” Crown witnesses

� Defence can request summary acquittal if there is no prima facie case

� Defence calls witnesses for examination in chief; Crown cross-examines

� Voir dire is a “trial within a trial”

� Closing arguments; verdict; if guilty, then submissions on sentencing; finally sentencing

� Appeal route: Provincial Superior Court, then Court of Appeal, then Supreme Court of Canada

Indictable Procedure� Defendant brought before a judge in Inferior Court; “information”

read

� Plea: guilty or not guilty

� Accused selects summary procedure in inferior court, or indictable procedure in superior court

� If proceeding with indictment, Accused can apply to have a preliminary inquiry at the inferior court

� judge decides whether there is enough evidence that could be found guilty

� Trial in Superior Court; Indictment read aloud

� Accused selects jury trial or by judge alone

� Then essentially the same procedure as in Summary procedure

� Appeal route: Court of Appeal, then Supreme Court of Canada

Variations� Hybrid offences

� Crown often has choice of whether to charge as a summary or an indictable offence

� Direct Indictment

� In serious cases, Crown can lay a direct indictment against the accused and skip the information and preliminary inquiry, going straight to trial at superior court and reading the indictment.

� AG must personally order this, so only most serious cases

Goals of Sentencing: s. 718

� denunciation

� deterrence

� separation of offender from society

� rehabilitation

� provide reparations

� restoration (promote sense of responsibility in offender)

Young People and Criminal Law

� Until 19th Century, children over 14 were treated as adults by criminal law

� also kids 7-14 if they could tell right from wrong

� 1908 Juvenile Delinquents Act treated children as needing care, not punishment

� delinquents, not criminals

� Young Offenders Act in 1982 gave youth Charter protections and was more punitive, allowing more young people to be treated as adults

� Youth Criminal Justice Act from 2003 is more punitive still, distinguishing between kids who commit minor offences and serious offences

Next class…

• Criminal Law and Police Powers

• Put the final exam in your calendar:Dec 18, 2pm−5pm, in Colonel By Hall, rm B012