Ch03 PPT Linden Crim 9e

Chapter 3
Criminal Law
by
Simon N. Verdun-Jones
Simon Fraser University
Slides prepared by
Stephen Schneider
Saint Mary’s University
Copyright © 2020 by Nelson Education Ltd. 3-1

Learning Objectives
• Define a crime.
• Identify the sources of Canadian criminal law.
• Distinguish between regulatory offences and “true
crimes.”
• Analyze criminal offences in terms of the actus reus
(physical) and mens rea (mental) elements.
• Understand the differences between subjective and
objective mens rea requirements.

Learning Objectives (cont.)
• Describe the different ways in which a person may

become a party to a criminal offence.
• Identify the basic components of the inchoate crimes of
counselling, attempt, and conspiracy.
• Describe the major defences that may be raised in
response to a criminal charge: not criminally responsible
on account of mental disorder, mistake of fact, mistake of
law, intoxication, necessity, duress, provocation, and self-
defence.

What Is a Crime?

What Is a Crime?
• Legal definition: a crime is conduct that is

prohibited by law and subject to a penal sanction.
– Prohibitions include the Criminal Code and other
federal statutes.
– There may or may not be a consensus within
society that the conduct is wrong.
– In Canada, prohibitions are the result of a
legislative process that is intensely political.
– Police and judiciary are required to enforce the
laws regardless of their own personal views.
What Is a Crime?
Discussion Question
In Canada, criminal law is the result of a legislative process

that is intensely political. To what extent does this statement
apply to Bill C-10 (the Safe Streets and Communities Act)
introduced by the last federal Conservative government? Do
you believe the punitive measures contained in Bill C-10 were
a sincere attempt by the government to help control crime in
this country? Or were they enacted because they align with
the Conservatives’ ideology?

What Is Criminal Law?

What Is Criminal Law?
• The definition of various crimes

• The specification of various
A body of penalties
jurisprudence • A set of general principles
that includes concerning criminal responsibility
the following: • A series of defences to a criminal
charge

Sources of Criminal Law
Where does criminal

law come from in
Canada?
Judicial decisions that

either interpret such
Federal legislation legislation or state the
“common law”
Federal Legislation and Criminal Law
• Constitution Act, 1867

– Parliament has exclusive jurisdiction over criminal
law and procedures.
• The Supreme Court of Canada has ruled that a
criminal law must be directed against a “public
evil” or some form of behaviour that has an
injurious effect on the Canadian public.

The Criminal Code of Canada

• First passed in 1892
• Defines criminal acts and the legal elements that
must be present for a conviction (substantive
criminal law)
• Specifies the criminal procedures to be followed in
prosecuting a case and the powers of CJS officials
(procedural law)
– Makes a distinction between (i) indictable, (ii)
summary, (iii) mixed or hybrid offences
Other relevant
federal criminal
statutes
Controlled Drugs
Youth Criminal Customs and
and Substances
Justice Act Excise Act
Act

Federal and Provincial or Territorial
Regulatory Legislation: Quasi-Criminal Law
• Constitution Act, 1867:
– Provinces have jurisdiction to enact legislation
over health, education, highways, liquor control,
hunting, and fishing, etc.
• Regulatory legislation
– Regulatory offences do not constitute criminal law
because it does not address “public evil.”
– Regulatory legislation is concerned with the
orderly regulation of legitimate activities.

Federal and Provincial or Territorial
Regulatory Legislation: Quasi-Criminal Law
• Criminal law is directed toward the control of

behaviour that is considered to be inherently
wrong (that is, public evil).
• Regulatory offences are less serious than
criminal offences, which are “true crimes.”

What Is a Crime?
Discussion Question
Some provinces in Canada have enacted legislation that critics

say infringes on the federal Parliament’s exclusive jurisdiction
to enact criminal law. Conduct research to identify these
provinces and specific laws. Do you believe that the laws
infringe on federal jurisdiction? In other words, in these cases
are the provincial legislatures trying to enact criminal laws?
Explain your answer based on your legal understanding of
what constitutes a crime.

Judge-Made Criminal Law
• Second major source of criminal law:

– Judicial decisions that interpret criminal legislation or
expound the common law
• Common law
– Laws that evolve in areas not covered by legislation
• Judges interpret criminal law.
• In Canada, judges cannot create new common-law
crimes.
– However, they develop common-law defences that are
not dealt with by legislation.
Impact of the Canadian
Charter of Rights and
Freedoms on Criminal Law

Impact of the Charter of Rights and
Freedoms on Criminal Law
• The Canadian Charter of Rights and Freedoms
empowers judges to declare invalid any
legislation that infringes on an individual’s
Charter rights.
• The Supreme Court of Canada has ruled that

some criminal laws are invalid (for example, laws
prohibiting abortion, some laws relating to sex
work).
Discussion Question
What Criminal Code provisions were nullified by the Supreme

Court decision in Canada (AG) v Bedford? What are the
implications for this court decision as far as sex work is
concerned in Canada? Critically analyze this court decision
(what is your opinion of this decision)? State whether you
support the Supreme Court’s decision (and why) as well as the
pros and cons of this decision.

The Basic Elements of a
Crime: Actus Reus and Mens
Rea

Basic Elements of a Crime
• Actus reus and mens rea need to be shown

beyond reasonable doubt for a person to be
convicted.
• An accused may not be convicted of a crime
unless it can be proved that
– (i) an event or state of affairs was “caused” by the
accused person’s conduct (actus reus), and
– (ii) this conduct was accompanied by a certain
state of mind (mens rea).
The Actus Reus Elements of a Crime
Conduct (a voluntary
act or omission
constituting the central
feature of the crime)
The actus reus

elements of a crime The surrounding or
“material”
includes three circumstances
components:
The consequences of
the voluntary conduct

The Actus Reus Elements of a Crime
Exceptions to actus reus:

• Perjury does not require proof of any consequences.
• A failure to act can constitute a crime only if the accused
was under a pre-existing legal duty to act.
– For example, there is a pre-existing duty owed by a parent
to a small child to provide the latter with the “necessaries
of life.”
• The accused’s conduct must be voluntary.
– If an accused person’s consciousness is seriously impaired,
there may be no actus reus due to involuntary actions

The Mens Rea Element of Crime
• Mens rea refers to the mental elements of the

crime (other than voluntariness) the Crown
must prove.
• A person must understand and intend the
consequences of his or her act.

Subjective and Objective Mens Rea
• The accused intended to bring

about consequences prohibited by
law.
Subjective • The forms of subjective mens rea
are intention and knowledge;
recklessness; and willful blindness.

Subjective and Objective Mens Rea
• A conviction should ensue because a

reasonable person would have
Objective appreciated that his/her conduct created
a risk of harm and would have taken
action to avoid the actus reus elements
of the crime.

Discussion Question
Her Majesty The Queen v. John Robin Sharpe

Do you agree with the ruling of the Supreme Court in R. vs.
Sharpe? Discuss your answer within the context of the basic
elements of a crime (actus reus & mens rea).

Becoming a Party to a
Criminal Offence

Becoming a Party to a Criminal Offence
• Individuals need not commit an offence to be

convicted.
– CCC section 21(1): anyone is a party to a crime
who
I. actually commits it,
II. aids another person to commit it, or
III. abets (encourages) any person to commit it
– The Supreme Court has said that the person who
aids and/or abets a murder is equally as guilty as a
person who actually commits it.
The Use of Criminal Law as a
Preventative Tool: Inchoate
Offences

Inchoate Offences
• Inchoate crime: when a person attempts to bring

about a crime but is unsuccessful in doing so
• There are three types of Criminal Code inchoate
offences:
1. Counselling: procuring, soliciting, or inciting another to
commit a crime (that may not be committed)
2. Criminal Attempt: an individual does (or omits to do)
anything for the purpose of carrying out a previously
formed intention to commit a crime
3. Conspiracy: An agreement by two or more persons to
commit a criminal offence
Inchoate Offences
• Civil liberty concerns:

– Criminal law should not punish people for entertaining
evil thoughts.
– However, society has the right to prevent people from
translating evil thoughts into acts.
• Problem: determining when the state is justified in
charging someone who has not yet committed a
crime.
– Accused persons must take some form of action that
manifests their intention to commit a crime (counselling,
attempt, conspiracy).
Defences to a Criminal Charge

• A patchwork of defences ensures that those who

have a justification or excuse for their conduct are
either acquitted or treated more leniently.
• There are several distinct defences of an accused in a

criminal trial. They include mistake of fact, duress,
intoxication, and not criminally responsible on
account of mental disorder (NCRMD).

Mental Disorder as a Defence to a Criminal Charge
• A mental disorder means that the accused lacks the
capacity to appreciate the nature of the act being
committed.
• A NCRMD accused may be granted:
1. An absolute discharge
2. A conditional discharge
3. An order holding them in custody in a psychiatric facility

Discussion Question
The sentence for infanticide (Criminal Code Section 233) is
much more lenient compared to sentences for homicide
offences. Why does the Criminal Code have a separate section
(including reduced penalties) for infanticide? Should this
offence warrant a separate section or should mothers who kill
their babies be treated like any other murderer?

General Defences to a Criminal Charge
• The accused made an honest

mistake that resulted in a crime.
• In cases of sexual assault, a
person had to have taken
Mistake reasonable steps to ascertain
of fact the complainant was
consenting.
• Ignorance of the law is not
mistake of fact.

Intoxication
• Intoxication may not be raised as a valid defence by
those who claim that substances impaired their
ability to control their conduct.
• It is a defence if it can be proved it prevented the
accused from forming mens rea.
– That is, it can be a defence if it prevented the accused
from forming the intent required for a specific offence.

It is unfair to convict individuals of a crime if they did not
have a choice at the time of the act.
Necessity
• The accused commits a lesser evil of a crime to avoid the
occurrence of a greater evil.
• The accused is considered to have acted involuntarily from
a moral viewpoint.
Duress
• The accused or another person such as a spouse or child
must be subjected to a threat of death or serious bodily
harm.
Provocation
• A partial defence, raised only when the charge is
murder.
– If successful, it results in manslaughter conviction.
• The accused must have killed in the heat of
passion caused by sudden provocation.
– The provocation has to be sufficient to deprive an
ordinary person of the power of self-control.

Self-defence
• The accused must show he or she:
– Was unlawfully assaulted and did not provoke the
attack
– Used force in self-defence
– Did not intend to inflict death or grievous bodily harm
– Used force that was no more than necessary to
defend oneself

In cases of self-defence involving domestic

violence:
– Battered woman’s syndrome may be raised,
– The Supreme Court supports the use of what a
“reasonable woman” would have done, and
– A woman in acute fear for her life does not have
to wait to be attacked.

Summary
• A crime consists of a prohibition against certain

conduct and a penal sanction
• The sources of criminal law are: (i) legislation, and (ii)
judicial decisions.
• Under the Canadian Constitution, the Parliament of
Canada has the exclusive authority to enact “criminal
law and the procedures relating to criminal matters.”

Summary
• There is a significant difference between “true

crimes” that arise under the Criminal Code and
regulatory offences.
• The enactment of the Canadian Charter of Rights
and Freedoms has given judges the power to
invalidate criminal law that unjustifiably infringes on
an accused person’s Charter rights.

Summary
• Each criminal offence can be analyzed in terms of its

actus reus and mens rea elements.
– The actus reus consists of three components: conduct,
circumstances, and consequences.
– Mens rea may be subjective or objective.
• An individual may become a party to a criminal offence
in a number of different ways:
– These include committing an offence, aiding and/or
abetting an offence, becoming a party to an offence by
way of common intention, or counselling an offence
that is committed.
Summary
• Three inchoate offences permit the police to

intervene before a particular crime is committed.
• A successful defence of NCRMD is not an acquittal.
• The most important defences to a criminal charge
include mistake of fact, intoxication, necessity,
duress, provocation, and self-defence.

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Chapter 3

Copyright © 2020 by Nelson Education Ltd. 3-1

Copyright © 2020 by Nelson Education Ltd. 3-2

• Describe the different ways in which a person may

Copyright © 2020 by Nelson Education Ltd. 3-3

Copyright © 2020 by Nelson Education Ltd. 3-4

• Legal definition: a crime is conduct that is

In Canada, criminal law is the result of a legislative process

Copyright © 2020 by Nelson Education Ltd. 3-6

Copyright © 2020 by Nelson Education Ltd. 3-7

• The definition of various crimes

Copyright © 2020 by Nelson Education Ltd. 3-8

Where does criminal

Judicial decisions that

• Constitution Act, 1867

Copyright © 2020 by Nelson Education Ltd. 3-10

The Criminal Code of Canada

Copyright © 2020 by Nelson Education Ltd. 3-12

Copyright © 2020 by Nelson Education Ltd. 3-13

• Criminal law is directed toward the control of

Copyright © 2020 by Nelson Education Ltd. 3-14

Some provinces in Canada have enacted legislation that critics

Copyright © 2020 by Nelson Education Ltd. 3-15

• Second major source of criminal law:

Copyright © 2020 by Nelson Education Ltd. 3-17

• The Supreme Court of Canada has ruled that

What Criminal Code provisions were nullified by the Supreme

Copyright © 2020 by Nelson Education Ltd. 3-19

Copyright © 2020 by Nelson Education Ltd. 3-20

• Actus reus and mens rea need to be shown

The actus reus

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Exceptions to actus reus:

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• Mens rea refers to the mental elements of the

Copyright © 2020 by Nelson Education Ltd. 3-24

• The accused intended to bring

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• A conviction should ensue because a

Copyright © 2020 by Nelson Education Ltd. 3-26

Her Majesty The Queen v. John Robin Sharpe

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Copyright © 2020 by Nelson Education Ltd. 3-28

• Individuals need not commit an offence to be

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• Inchoate crime: when a person attempts to bring

• Civil liberty concerns:

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• A patchwork of defences ensures that those who

• There are several distinct defences of an accused in a

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Copyright © 2020 by Nelson Education Ltd. 3-35

Copyright © 2020 by Nelson Education Ltd. 3-36

• The accused made an honest

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In cases of self-defence involving domestic

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