Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents



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Criminal code stuff


  • S8 (3): allows use of defences previously used in common law...if u can’t find a defence in the code, you might still have one available at common law

  • S9: criminal law will only be based on criminal code and nothing that came before it

    • We always, always begin with the criminal code or another federal act...

Classification of offence


  • Summary=less serious—prov court

  • Indictable=more serious, more procedural safeguards, longer sentences

    • most serious s469 Criminal Code Go to Supreme Court

    • Less serious s553 Criminal Codeabsolute jurisdiction of provincial

      • Trials always by judge alone

    • If not listed Elective offences accused decides how to be tried

      • Can choose provincial court no jury no prelim hearing

        • Benefits: tried quicker, case over sooner, you get oral reasons from judge that you can scrutinize

      • Go supreme court, prelim, judge alone

        • Benefit: Judge gives reasons, prelim hearing, maybe wont go ahead

        • Takes longer -bad

      • Go to supreme court, have prelim hearing, have jury

        • Benefit: Tried by your ‘peers’

        • Jury doesn’t give reasons-bad, but you can appeal based on judicial instruction to jury

  • Hybrid=can be indictable or summary @ crown’s choice which is charged

Appeals


Error in Law: can be appealed by crown or defence. MOST COMMON BASIS. Only judge makes this error by omitting or excluding evidence or misunderstanding the law. Was there mistake of law? Did this compromise fair trial? (Hamilton...mistake of law) Court could substitute new verdict or order a retrial

Error in Fact: Unreasonable verdict unsupported by evidence. Only D can make it. Only if accused can say evidence is unsupported. (Usually TJ fact decisions are respected) RARE

Miscarriage of Justice/Unreasonable :only defence can bring it up. Was there a failure in judicial process including investigation which gave rise to wrongful verdict? (Dr Charles Smith...autopsies completely wrong)

Proving the Crime

Crown’s Burdens


Evidentiary Burden: initial burden on Crown to introduce evidence on each element of the offence

Legal Burden: Crown must prove each element of the offence beyond a reasonable doubt

Statute can shift the burden of proof: will always raise s. 11(d) issue/ always raise a constitutional problem as they could lead to a conviction despite the existence of a reasonable doubt (Oakes)

 2 types of Reverse Onus Provisions these will both be in the Code

Reverse Onus Burdens (ALWAYS RAISE A CHARTER ISSUE UNDER S 11 D. APPLY OAKES)


1) Evidentiary Burden

       E.g. the proof of one fact leads to the presumption of another, in ABSENCE OF EVIDENCE TO THE CONTRARY = evidentiary burden (raising a reasonable doubt) on AOR Cinous



2) Legal Burden to prove on a Balance of Probabilities

       E.g. Everyone who without lawful justification or excuse, the PROOF which lies on him (PROOF= ON A BALANCE OF PROBABILITIES)

 2 types of Presumptions:

1) Mandatory Statutory Presumptions: trier of fact must draw a presumption

2) Permissive presumptions: allow, but don’t require, the trier of fact to infer the existence of one fact from the existence of another

BRD


R. v. Lifchus [1997] SCC

If the explanation as a whole could reasonably be misunderstood by the jury then the explanation cannot be acceptable. There is no magical incantation; a few slips doesn’t negate the instruction, one has to look at the instruction in its entirety.

Judges should explain reasonable doubt as follows to jurors:

Judges should NOT say that RD:



  1. has ordinary connotations/not important decisions

  2. implies absolute certainty

  3. is based on moral certainty [ppl use it differently than was used earlier]

Judges SHOULD say RD:

  1. is based on reason and common sense [nothing else]

  2. Can’t be based on sympathy

  3. Can’t be imaginary or frivoulous

  4. is logically connected to evidence or absence of evidence

Requires more than probable guilt but not absolute certainty

CREDIBILITY


R. v. JHS. [2008] SCC

  • A convicted of sexual assault. Rules related to credibility.

  • WD Rules instructing Jury on Reasonable Doubt:

    • 1) If you believe the evidence of A, you must acquit.

    • 2) If you do not believe the evidence of A but are left with a reasonable doubt by it, you must acquit.

    • 3) Even if you are not left in doubt by the evidence of A, you must asked whether on the basis of the evidence which you accept, you are convinced BRD by the evidence of the guilt of the A.

    • 4) If the jury does not know who to believe, they must acquit (JHS adds).

  • The Threshold for appellant reversal: could jury have been under misapprehension for the correct burden and standard of proof to apply. If jury under misapprehensionmust be reversal

  • Different standard than Lifchus for credibility – if the jury could have been under any misapprehension, a new trial is ordered. There is no magical incantation; the jury charge is read as a whole.


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