(1) There are certain forms of conduct that can attract state punishment but do not form part of the criminal law can be jailed for civil contempt
(2) Difficult to predict types of wrongs that are subject to state punishment
A crime is any public wrong that causes harm to the public (in addition to the victim) and is subject to criminal proceedings, criminal rules of evidence, and criminal punishments.
Focus on the harm arising from the wrong (community harmed by it)
Focus on the interest engaged by the wrong (community values affected by it)
Why do we need a clear definition of what constitutes a crime?
Helps us decide whether application of criminal law is appropriate to a given set of facts or problem
Provides a basis for discussions about the proper scope of the criminal law and questions of criminal law reform
Crimes vs. Torts: While criminal law sets out apportion blame and punish certain types of wrongs, torts looks to compensate victims for harm arising out of certain types of conduct.
True crimes constitute conduct that is abhorrent to the basic values of human society (ie. murder) while Regulatory crimes are imposed because unregulated activity would result in dangerous conditions being imposed upon members of society (culpability less important).
Instrumental (consequentialist) Functions: Aimed at bringing about some (positive consequence).
Promoting order by setting out clear rules for individual behaviour (and prohibiting conduct that it likely to harm others);
Protecting the individuals and the public at large (by deterring potential offenders and incapacitating convicted offenders); and
Limiting and resolving conflicts between individuals
Moral Functions: Aimed at promoting or defending a particular moral position
Acting in accordance with certain moral principles (such as punishing those who have committed moral wrongs);
Promoting a particular set of morals or community values by punishing those who do not act in accordance with those morals or values; and
Reasserting the moral claims (and moral rights) of victims by punishing offenders who fail to respect those claims or rights
SOURCES AND LIMITS OF CRIMINAL LAW The primary basis for Criminal Law in Canada is S. 91(27)of the Constitution Act 1867, which states that power to make criminal law is federal power. The main source of criminal law is the Criminal Code.
Federal Parliament also has the authority (under s 91 (28)) to establish, maintain, and manage penitentiaries. Other sources of criminal law include YCJA (2003)& Controlled Drug & Substances Act (1996), and case law.
3 essential characteristics of a crime:
(1) Crimes prohibit certain types of conduct;
(2) Crimes are accompanied by a penalty for violating the prohibition set out in (1); and
(3) The prohibition and penalty must be directed to a “public evil” or some other behaviour that can cause harm to the public at large (Margarine Reference Case (1949))
Criminal law is limited by S.1 of the Charter, which “guarantees the R&F set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Courts can strike down inconsistent legislation (s. 52) or order remedies for Charter violations (S.24(1)).
The actus reusis the prohibited act (e.g. the actus reus of theft is the taking of property belonging to someone else without their consent).
The mens rea of the offence is the required mental element(s) of fault (e.g. mens rea of theft is the intention to take the property and the knowledge that you are not entitled to take it).
BURDEN OF PROOF The burden of proof is on the Crown to establish that a crime has occurred beyond a reasonable doubt by establishing:
(1) That the elements of the offence charged have been made out (proven actus reus & mens rea)
(2) The particular / relevant facts alleged in the charge – such as the identity of the accused and the time and place of the offence.
Permissive presumption: courts may draw an inference of the presumed fact (ie. If A (basic fact) is established, then the court is permitted (but not required) to assume that B (presumed fact) is true
If a presumption is rebuttable, there are 3 potential ways the presumed fact can be rebutted. Accused may be required to raise a reasonable doubt as to its existence
Accused has evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact.
Accused has legal/persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact.
Mandatory presumption: courts must draw an inference of the presumed fact (ie. If A (basic fact) is established, then the court is required to conclude that B (presumed fact) is true