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Criminal Law NCA Summary

Criminal Law NCA Summary

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Published by Jed_Friedman_8744
Outline for Canadian NCA exams
Outline for Canadian NCA exams

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Published by: Jed_Friedman_8744 on Sep 09, 2011
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For tutoring on this subject by the person who created these notes, e-mailandrew .captan @ utoronto .ca. He successfully completed all of the NCArequirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).
- With exception of contempt, criminal offences are created by statute, mostly by the Criminal Code [“CC”]* SeeFrey v Fedoruk(Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because anatural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merelybecause they have this tendency. It is for Parliament and not for the Courts to decide if any course of conduct)* See CC s 9- But common law defences are available under Canadian criminal law (e.g,Levis (City) v Tetrault– below; and CC s 8)- Common law CAN determine, however, how criminal offences are interpreted (e.g.R v Jobidon)
Constitutional Division of Powers
- Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences), but only the Federal Government can create“criminal offences”: s 91(27) Constitution Act(b)
The Canadian Charter of Rights and Freedoms
- The Charter can be used to invalidate offences that Parliament has created, and can be used to strike down rules of criminal procedure:* See, e.g,R v Heywood 
(Example of criminal offence being struck down):
 The Constitutional question was whether s 179(1)(b) of the CC infringed several sectionsof the Charter, and if so, whether those infringements were justifiable under s 1.
The offence was too sweeping in relation to the objective (particularly inrelation to its geographical ambit), and therefore limits liberty beyond what is necessary for Parliament to accomplish its goal)* See, e.g.,R v Oakes 
(Example of a rule of criminal procedure being struck down):
The SCC was called on to deal with the constitutionality of section 8 of theNarcotic Control Act, which provided that a person found in possession of a narcotic was presumed to be in possession for the purpose of trafficking, unless heestablished the contrary.
That section, which requires an accused to disprove on a BoP the existence of a presumed fact, violates the presumption of innocence. The law cannot be saved by s 1 of the Charter, as it does not survive the rational connection test, and therefore it is invalid)- The Charter can also be used as an important interpretative tool by allowing courts to use constitutional values to influence the way statutes are interpreted:* See, e.g,R v Labaye: The issue in this case was whether what went on in l’Orage constituted “acts of indecency”. To ground criminal responsibility for indecency, theharm must be one which society formally recognizes as incompatible with its proper functioning (autonomy, liberty, equality and human dignity are among these values)
For tutoring on this subject by the person who created these notes, e-mailandrew .captan @ utoronto .ca. He successfully completed all of the NCArequirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).
- Two general categories: “Indictable” and “summary” offences. Offences can be “hybrid” (i.e. prosecutor has right to elect whether to treat as indictable or summary) (this isnot a 3
category of offence, though)- The classification of offences has important implications for the penalties that are possible, and for the procedure that will be sued, including the mode of trial
- Definitions are found in CC s 2 (which apply throughout) and in the beginning of each Part
Strict Construction
- Traditionally, criminal statutes were interpreted strictly in favour of the liberty of the accused; although this principle continues to apply, it has been heavily modified by thepurposive interpretation approach:* SeeR v Pare:  The words "while committing" in s. 214(5) do not require the murder and the underlying offence to take place simultaneously. Where the act causingdeath and the acts constituting the indecent assault all form part of one continuous sequence of events forming a single transaction, the death is caused "whilecommitting" an offence for the purposes of s. 214(5). The offences under s. 214(5) all involve the illegal domination of people by other people. Accordingly, it is thecontinuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder and makes it a single transaction. The murderrepresents an exploitation of the position of power created by the underlying crime and knits the two together. The conviction of first degree murder should be restored”
Purposive Interpretation
- Canadian law makes liberal use of purposive interpretation (see R v Pare above)
- Federal laws like the CC are passed in both English and French; each is equally authoritative and ambiguities in one language can be clarified by the other:* See, e.g.,R v J (D)
The Charter 
- The Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionallyvalid:* See, e.g.,Canadian Foundation for Children, Youth & the Law v Canada:
CC s 43 excludes from crime reasonable physical correction of children by their parents andteachers. The CFC, and other foundations, seek declaration that this exemption violates s 7 because it fails to give procedural protections to children; violates s 12because it constitutes cruel and unusual punishment and violates s 15.
: Constitutionality of provision allowing parents and teachers to use minor corrective force
s 7 analysis: Section 7 protects individuals from violation of their personal security. McLachlin found that there was no violation of section. The Crown had concededthat the law adversely affected the child's security of person, so the issue was whether the violation offended a principle of fundamental justice. The Foundation proposesthree claims as mentioned above. McLachlin rejected the first claim that it failed to give procedural protection as children receive all the same protection as anyone else.On the second claim, she rejects that the "best interests of the child" is a principle of fundamental justice as there is no "consensus that it is vital or fundamental to oursocietal notion of justice."
s 12 analysis: Section 12 prevents "cruel and unusual punishment". Citing the standard of showing cruel and unusual punishment from R. v. Smith as "so excessive asto outrage standards of decency", McLachlin rejects the claim as the section only permits "corrective force that is reasonable" thus cannot be excessive by definition.
For tutoring on this subject by the person who created these notes, e-mailandrew .captan @ utoronto .ca. He successfully completed all of the NCArequirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).
S 43 does not lead to a violation of s 15 of the Charter, and the Foundation erroneously equates equal treatment with identical treatment. So while s 43 makes adistinction on the basis of age (triggering s 15), the distinction isn’t discriminatory. The question may be put as follows: viewed from the perspective of the reasonableperson identified above, does Parliament’s choice not to criminalize reasonable use of corrective force against children offend their human dignity and freedom, bymarginalizing them or treating them as less worthy without regard to their actual circumstances?
: The law stands
 The elements of an offence include:
(1) The PHYSICAL elements
(actus reus):
the act that must be performed; the omission that must be proscribed; the circumstances or conditions in whichthe act must occur; the accused must have acted voluntarily; causation must be established (if relevant); and any consequence that must be caused by the act.
(2) The MENTAL element
(mens rea):
as a general proposition, a true crime will be interpreted as requiring subjective mens rea unless it is clear thatParliament wished to impose objective liability.
Acts and Statutory Conditions:
- The act must be the act of the accused, and must be the kind of act described in the relevant provision, and the act must be committed under the circumstances or conditionsspecified in the offence, e.g.: an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s 348(1)(a) unless he“breaks” and “enters” something that qualifies as a “place”
 Acts must be “Voluntary” or “Willed”:
- See voluntariness defences below
The “Act” of Possession
- There are a couple of offences in the CC that have “possession” as an element (of the actus reus), e.g., possession of firearm related offences, possession of property obtainedin a crime (s 354(1)), etc.- “Possession” is defined ins 4(3):A person has something in his “possession” where(a)He has it in PERSONAL POSSESSION (i.e. manual possession);
KNOWINGLY has it in the actual possession or custody of ANOTHER PERSON (i.e.constructive possession);
KNOWINGLY has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself oranother person (i.e. constructive possession)(b)Where ONE OF TWO PERSONS has anything in his custody or possession, with the KNOWLEDGE AND CONSENT of the rest, it shall be deemed to be in thecustody of ALL OF THEM (i.e. joint possession)- Note thats 2of the CDSA adopts this definition of possession

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