Criminal Law

A series of split decisions of the SCC has led to the entrenchment of the air of reality test

R. v. Davis (1999) SCC
Photographer represented to numerous young girls that he was with a modelling agency, took sexually explicit photos of them and told them that he would show the pictures to their parents of they refused to have sex with him.  It is necessary to consider the totality of the evidence.  Judges should avoid using the air of reality test to weigh evidence because this only serves to usurp the role of the trier of fact.  Even where the stories are polar opposites, there can be an air of reality if portions of the conflicting stories can reasonably be spliced together.

Constitutionality of CC273.1:
This section prevents a complainant’s sexual history from being used for improper purposes.  Darrach claimed that the unavailability of this information precluded him of his s.7 right to make full answer or defense and s.11d to have a fair trial.  The scope of this section only focuses on precluding attacks on the credibility of a witness because of her past sexual experience.  To allow this would be to make some women unrapeable.  This case also found that the stigma attached to sexual assault makes it necessary for the subjective test for mens rea to apply.

MISTAKE

Mistake of Fact and Mistake of Law differ under CC19.  Mistake relates to the mens rea.

Mistake of Fact: occurs when the accused is mistaken in his belief that facts exist when they don’t or that they don’t exist when they do.  Fact: something perceptible by the senses.  The test for mistake of fact is subjective meaning that one can have an honest but not necessarily reasonable mistake.

MISTAKE OF FACT

Mistake of fact negates intention rather than affirms a positive defense.  It is available to an accused that acts innocently with a flawed view of the facts but nonetheless commits actus reus.  It is a defense in that it is an issue raised by the accused.  The Crown rarely has knowledge of subjective factors that may have caused the accused to entertain a belief in a false set of facts.
1.    Where there is subjective mens rea – the mistake need merely be honestly held with reasonableness only relevant to assessment of credibility.
2.    Where the fault element requires objective negligence – the mistake must be honest and reasonable.
3.    Where fault is based on absolute liability – mistake is no defence.

R. v. Hess; R. v. Nguyen (1990) SCC
This case assessed whether the defense of mistake of fact could be used regarding discovery of the age of the victim in a statutory rape case under CC146.1, which carried a possible life sentence.  They claimed this part of the CC, through its express exclusion of the mistake of fact defense, violated s.7.  There was a valid legislative objective (prevent young girls from getting pregnant), there was a rational nexus but no proportionality.  Therefore, it could not be saved by s.1 – possible for a morally innocent person to be imprisoned for life.  Under CC151.4, it is necessary to take all reasonable steps to ascertain age.  That this defense was expressly precluded in CC146.1 made statutory rape an absolute liability offence, which offended s.7.  In dissent, McLauchlin stated that absolute liability was okay in this case because the alternatives of a due diligence or reasonable belief defense would not provide an effective deterrent.

NATURE OF THE MISTAKE

R. v. Ladue (1965) Yukon CA
The accused was convicted of indecently interfering with a dead human body.  The appeal argued that the accused did not know the person was dead therefore had no knowledge that the act committed was on a dead body.  The appeal was dismissed because even though the accused did not know that the woman was dead his act could not be done innocently.  Had the woman been alive, the accused would have been committing rape (no consent).  Knowledge that a body was dead was not a specific ingredient of an offence against CC167.b.  All that was required was mens rea in the widest sense.  Strangely, L was convicted of an offence different from the one he was charged with, which contravenes the Beaver approach that one must have a consideration of the true essence of the offence.

R. v. Kundeus (1976) SCC
Accused was asked for LSD by an undercover officer and said he didn’t have any but had Mescaline.  In fact, the two capsules sold were LSD, even though both parties believed the subject of the transaction was Mescaline.  This case didn’t follow Beaver, which involved confusion between sugar and drugs rather than two types of drugs.  Mistake was regarding two types of illegal drugs.  Laskin J dissented because Mescaline carried a lesser charge than LSD – K only had mens rea for the less penal drug.

R v. Creighton (1993) SCC
There should be a distinction between the subjective standard of whether the accused was actually aware of the risk and the objective standard of whether the accused failed to measure up to the external standard of the reasonable person, irrespective of awareness.  On the subjective standard, all of the accused’s individual factors are taken into account.  The objective standard is much tougher since Creighton because no personal factors can be taken into account unless they relate to incapacity.

R. v. Hundal (1993) SCC
The accused was charged with dangerous driving causing death under CC249.  He killed a motorist by driving his truck through a red light at an intersection.  He claimed that the death resulted from his inability to stop the truck in time after it turned yellow. The SCC held that objective test should apply.  Cory J. says that even where the substantive test is subjective awareness, the approach to proof is objective.

R. v. Anderson (1990) SCC
Looks at the practical distinctions between the standards; however, there are many borderline cases where the distinction is crucial.  For example, in a drug possession case, the trier of fact may distinguish between one who was aware of the drug and one who wasn’t aware even though a reasonable person would be.  These distinctions should be reflected in punishment.

R. v. Theroux (1993) SCC
Theroux was charged with fraud under CC380.  He was involved in building houses and sold several residences before their completion, representing to the buyers that their deposits were insured, although no such insurance existed.  Theroux went bankrupt and many purchasers lost their deposits.  He claimed that he believed the buildings would be completed and the purchasers would not be harmed.  Fault must be viewed within the full context of the facts.  The mens rea for fraud was established by proof of the subjective knowledge of the prohibited act and the subjective knowledge that prohibited act could have as a consequence the deprivation of another.  Theroux’s belief that no one would be hurt is no defense.  He committed deliberate falsehoods that caused deprivation.  He knew he was placing the deposits of his purchasers at risk, even though he believed the risk would not materialize.

R. v. Mulligan (1976) Ont. CA
M raised the defense that his emotional stress and the alcohol he consumed caused a disease of the mind rendering him incapable of appreciating his act of non-capital murder.  One intends the natural and probable consequences of his act.

Hosegood v. Hosegood (1950) HL
Denning stated that the presumption of intention is not a proposition of the law but one of ordinary good sense.  A man is normally able to foresee the consequences of his actions.  This inference may be drawn but does not have to be.

Class Example:
Jill discharged at point blank range a gun pointed at Jack.  Inference of intent is drawn but may be rebutted by evidence to the effect that the gun was discharged accidentally.  The accused diverts the finger of suspicion.  In the past 60 years, scholars that the mens rea required for criminal responsibility (whether intent, recklessness, willful blindness) must be subjectively determined.  Objective test is wrong except for manslaughter.

D.P.P. v. Smith (1960) HL
Smith stole scaffolding.  A policeman attempted to stop Smith by holding onto the side of his car.  Smith accelerated and the policeman died when crushed under the wheel of a car.  The HL accepted Holmes’ view that the approach for determining intent for murder should be objective.  Why?  A reasonable man would have foreseen that his act would produce the victim’s death, which means the mental element is proven.  This approach has been universally criticized.  English Parliament passed the Criminal Justice Act (1976) which abolished the objective standard for murder.

FAULT FOR REGULATORY OFFENCES

Regulatory offences are enacted by the federal, provincial and municipal governments and they far outnumber offences under the CC.  They are enacted to prevent harm before it happens and often apply to corporations.
Absolute liability offences (must prove actus reus but not mens rea) violate the Charter if they carry the possibility of imprisonment (BC Motor Vehicle Reference).  With absolute liability, the offence only requires proof of the prohibited act beyond a reasonable doubt to establish fault (no requirement of subjective fault).  There is a common law presumption against absolute liability.  In R. v. Pontes, the SCC determined upheld an absolute liability offence on the basis that the accused could not be imprisoned for violating it.  No violation of the Charter occurs in this instance because a sentence other than imprisonment does not affect the accused’s right to life, liberty or security of the person. Under this, one could be completely innocent but branded as a malefactor.  It is okay for absolute liability offences to relate to businesses because they do not enjoy rights under s.7 of the Charter.  When a corporation is charged with an offence, fault must be attributed to someone who holds the status of directing mind of the corporation.  Directing minds must supervise and implement corporate policy, not simply carry it out.
Strict liability is described as a halfway house between absolute liability and full mens rea offences.  This head of fault came about following Sault Ste. Marie.  Before this decision, the only choices for the court were full mens rea or absolute liability.  There is a presumption that all regulatory offences are strict liability offences.  Negligence will be a constitutionally sufficient fault element for all regulatory offences.  Negligence is rebuttable if evidence is tendered to the effect that reasonable care was taken in the circumstances.
Vicarious liability occurs when the acts and fault of another person are attributed to the accused for the purposes of determining liability.  The principles of fundamental justice, many argue, do not recognize the ascribing to one person of another’s state of mind.

Mandatory Presumption
R. v. Whyte (1988) SCC
The accused was charged with having care and control of a motor vehicle while his ability was impaired.  CC234.1 provides that “everyone who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, while his ability to drive is impaired by alcohol or a drug, is guilty of an indictable offence.  CC237.1.a. states that one shall be “deemed to have had the control and care of the vehicle unless he establishes that he did not enter or mount the vehicle for the purposes of setting it in motion.”  In this case, there was a violation of s.11d because it required the accused to be convicted even if he was able to raise a reasonable doubt about the intent to put the vehicle in motion, but was unable to prove on a balance of probabilities that there was no such intent.  This, in turn, triggered a mandatory presumption that the accused was in care and control of the vehicle.  This violation passed the Oakes Test and was thus justified due to the problems brought on by drunk driving.  The same occurred in R. v. Chaulk (1900) SCC, where the constitutionality of the reverse onus provision regarding the defense of insanity was held violate s.11.d but was nonetheless saved by s.1.  Any type of burden of proof on the accused is a prima facie violation of s.11d.   Prof. Morrison likes the Edward Books approach the best, under which the test for minimum intrusion asks whether the right is restricted as little as possible.

R. v. Downey (1992)
The accused was said to be living off the avails of prostitution; however, Cory J. clarified that living with a prostitute doesn’t mean they are living off the avails and that such a mandatory presumption was contrary to the presumption of innocence found in s.11d.  “Pointing the finger of suspicion.”  The court did hold that a mandatory burden that could be displaced by satisfying an evidential burden was justified under s.1 because it is necessary to counter the evils of pimping.

Judicial Bias
R. v. R.D.S. (1997) SCC
A black fifteen year-old was arrested for interfering in the arrest of another youth.  The controversy emerged out of the fact that the black judge commented “certainly police officers over react, particularly when dealing with non-white groups.”  Cory J. says that it seems that the black judge predetermined the issue of credibility; however, within the entire context, she was just exploring possible reasons.  He continued by saying that a high standard must be met before finding of a reasonable apprehension of bias can be made.  Major J. “life experience is not a substitute for evidence.”  It was open to the appellant to introduce evidence that this police officer was racist and that racism motivated his actions or that he lied.  This was not done.  L’Heureux-Dube J. says judges should be able to draw on their varied perspectives in decision making.  At no time did the black judge rule that the police officer was motivated by racism; however, she goes on to say that if the judge had attributed the officer’s behavior to the racial dynamics of the situation, she would not necessarily have erred.

IV.  THE ACT REQUIREMENT (ACTUS REUS)

Actus Reus
The actus reus is shorthand for a variety of behavior and must be present in an offence for criminal liability to be imposed (the mens rea, of course, must also be present and coincidental in time with the guilty act).  The actus reus is “an act of commission or omission by a human being that is voluntary and the consequences are part of the definition that has caused those consequences.” Normally, the actus reus applies to a positive act (Acts of Commission).  Problems often arise when legislation fails to define the act for a particular crime.  Even when it is defined, it can still require careful judicial attention.  The age for criminal liability in Canada is 12 years old.  The broad range of prohibited acts in the CC requires the judge to distinguish at sentencing among the relative culpability of various levels of participation in crimes.  There also numerous policy elements at play, for example, those that vitiate the consent of the complainant.

R. v. Hutt (1978) SCC
This case involved whether the CA erred in interpreting the word “solicit” in CC195.1.  Under the legislation, solicitation for the purposes of prostitution must occur in a public place.  This transaction did not begin until the prostitute was in the undercover officer’s car.  Solicitation involves pestering, pressing or persisting, which did not happen in this case.

Prostitution Reference (1990) SCC
It was claimed that CC195.1 (now 213.1.c), which prohibits communicating for the purposes of prostitution, was a violation of s.2b of the Charter; however, this limit was justified under s.1 as a reasonable and justifiable limit to freedom of expression.  Communication for this purpose hardly lies at the core of the s.2b guarantee.  The claim that the provision was overbroad also failed due to the need for Parliament to be flexible.  Wilson J dissented on the basis that this provision was an attempt to control prostitution, a perfectly legal activity.

Marshall v. R. (1969) Alta. CA
Marshall was charged jointly with three others under s.4.2 of the Narcotic Control Act for being “unlawfully in possession of a narcotic for the purpose of trafficking.”  Marshall was a youth and claimed to have been “just getting a ride back” to Calgary.  The trial judge found that though Marshall never exercised control over the substance, having ridden in the car for as long he did without any protestations or act that separated him from the others, amounted to acquiescence.  The CA found that being in the car with the drugs, though foolish, did not constitute having possession or control over the marijuana.

Strict Construction
This is similar to the notion of contra preferentum in Contract Law, which follows that the Court should adopt an interpretation most favourable to the accused.  The seriousness of imposing criminal penalties demands that reasonable doubts be resolved in favour of the accused.  Roach says that strict construction only applies if, after consulting the purposes of a statute, reasonable ambiguities remain in its meaning.

R. v. Pare (1987) SCC
This case involved a sexual assault on a young boy by a teenager, which culminated in murder.  Two minutes elapsed between the assault and subsequent strangulation; however the child was held down during this period.  The teenager was charged with first degree murder under CC214.5.  Pare followed a strict construction argument and stated that the words “while committing” must be construed narrowly so as to elevate murder to first degree only if the assault and death occur simultaneously.  The court interpreted the assault and murder as a “single transaction” or “continuous sequence of events” and found Pare guilty of first degree murder.  Therefore, this was not a case for strict construction.  Dickson J stated the importance of strict construction in Marcotte v. Canada in saying that when individual liberty is at stake, the accused should get the benefit of interpretation.  R. v. Russell recently followed Pare.

III.  EVIDENCE & PROOF

PRESUMPTIONS OF INNOCENCE:
The presumption of innocence is linked to the concept of reasonable doubt.  The pre-Charter concept was defined in Woolmington (1935) Eng. CA, which followed that the presumption of innocence was breached whenever the accused was going to be convicted despite the existence of a reasonable doubt, which is a burden that must be proven by the Crown.  “Throughout the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.”  The presumption of innocence is now engrained in our Constitution as s.11d of the Charter, which also promises a fair and public hearing before an independent and impartial tribunal.  It also applies to any defenses raised.  This concept is also found in international human rights doctrines.

REASONABLE DOUBT
Reasonable doubt must go beyond the civil standard and be derived from the evidence or absence thereof.  Being beyond a reasonable doubt does not require absolute certainty.  The following case surveys the concept of reasonable doubt:

R. v. Lifchus (1997) SCC
This case involved a judge who was said to have erred in instructing the jury on the meaning of the expression “beyond a reasonable doubt.”  Cory J. found this phrase is a term of art.  It is crucial that jurors fully understand the nature of the burden of proof that the law requires them to apply.
1.    Reasonable doubt is connected to the presumption of innocence;
2.    It is a burden that rests in the prosecution;
3.    It is not a doubt based on sympathy or prejudice;
4.    It is connected to the evidence or absence thereof;
5.    It does not involve proof to an absolute certainty but requires more than that the accused is probably guilty;

BURDENS, PRESUMPTIONS & REVERSE ONUSES
Persuasive Burden of Proof
In the criminal context, this refers to the burden of the Crown to persuade the trier of fact of the guilt of the accused beyond a reasonable doubt.  This also applies to some defenses that involve a reverse onus provision, such as automatism, which make it necessary for the accused to prove on a balance of probabilities that he was in such a state at the time the crime was committed.

Evidential Burden of Proof
The trier of fact is required to draw conclusions from the proof of a basic fact in the absence of evidence to the contrary.  These can develop during trial and are much less strict than persuasive burdens.  This burden may shift by pointing to evidence to establish an air of reality about something.

Mandatory Presumptions
Must be distinguished from the evidential burden.  This is not a burden of proof.

Reverse Onus
Oakes v. R. (1996) SCC
This case dealt with a reverse onus provision under s.8 of the Narcotic Control Act, which stated that when an accused is in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking.  The Ont. CA said this was a violation of s.11.d of the Charter.  Oakes argued that the presumption of innocence is an integral part of life, liberty and security of the person as found in s.7.  S.11d of the Charter must have, at least, the following content:
1.    An individual must be proven guilty beyond a reasonable doubt;
2.    It is the state that bares the burden of proof;
3.    Criminal prosecutions must be carried out in accordance with lawful procedures and fairness.
After setting out the Oakes Test, the Dickson CJ. determined that the impugned part of the Act failed the rational nexus component of the test and thus failed to be saved by s.1.  Possession of a small amount of narcotics does not support the inference of trafficking.  The SCC held that the reverse onus provision was a persuasive burden of proof that was contrary to s.11.d.

II.  VAGUENESS, OVERBREADTH & STRICT CONSTRUCTION

VAGUENESS & OVERBREADTH:

A.    American Doctrine of Void for Vagueness
The American Doctrine of Void for Vagueness very simply follows that it is unconstitutional if something is void for vagueness (Collander v. Lawrence (1983)).  People must be able to understand what they are being charged with.

B.    Canadian Doctrine of Void for Vagueness
The Canadian Doctrine of Void for Vagueness was articulated in the Prostitution Reference (1990).  The ratio of this case followed that if something is too vague, it runs contrary to principles of fundamental justice found in s.7 of the Charter.  Nullem crimen sine lege, nulla poene sine lege – there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive.  The Void for Vagueness Doctrine is founded on the rule of law, i.e. fair notice.  There is a difference between fair notice and formal notice.  Under CC19, ignorance of the law by a person who commits an offence is no defense.  Gonthier J. summarizes vagueness as follows: A law is vague if it so lacks in precision as not to give guidance to legal debate.  A law that is too vague cannot be prescribed by law.

R. v. Nova Scotia Pharmaceutical Society (1992) SCC:
12 accused were charged with conspiracy to prevent or lessen competition unduly, contrary to s.45 of the Competition Act.  NSSC quashed the charge on the basis that the term “unduly” made the law too vague.  Gonthier J. summarized that there is a “relatively high threshold” for a law being declared vague and stated the following principles for determining vagueness:
1.    It is a principle of fundamental justice that a law not be too vague.
2.    The Doctrine of Vagueness is founded on the rule of law foundational principle, particularly as it relates to fair notice and limitation of enforcement discretion.
3.    Factors in evaluating vagueness include:
a.    the need for flexibility and the interpretive role of the Courts.
b.    the impossibility of achieving absolute certainty.
c.    many different judicial interpretations of a given disposition may exist.

C.    Canadian Doctrine of Overbreadth
Overbreadth involves a law that’s means are far more sweeping than its objective.  R. v. Nova Scotia Pharmaceutical Society also treated the subject of overbreadth and came to the determination that overbreadth always relates to a limitation under the Charter.  In evaluating overbreadth, one is to consider the means chosen by the state in relation to its purposes.  Overbreadth occurs when a state has employed means that are far broader than necessary to accomplish an objective.

R. v. Heywood (1994) SCC
Heywood was a convicted pedophile who was later found “loitering at or near a school ground, playground, public park or bathing area” contrary to CC179.1.b.  He was observed carrying a camera with a telephoto lens and pictures in his possession were later found which showed the crotch areas of young girls.  The trial judge found the accused guilty and noted that this CC section, though contrary to s.7 and 11.d of the Charter, was justified under s.1.  Cory J. found that the pith and substance of the CC section was to protect young children from becoming victims of sexual assault and that parks are a prime place for this activity to take place.  Is this limitation in accordance with the principles of fundamental justice?  Cory J. went on to say that it “applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review.”  This was the basis of his finding that this section of the CC was overbroad and this failed the minimal impairment arm of the Oakes Test.  Gonthier J., writing for the minority, proposed an interpretation that would eliminate the possibility of overbreadth.  He said “The affected persons’ history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re-offending justify what is in effect a minor intrusion which does not breach the principles of fundamental justice.”  “Prohibiting lingering or hanging around about the enumerated areas for a malevolent or ulterior purpose related to one of the predicate offences thus survives Charter scrutiny.”

Note: Parliament replaced this section with a much narrower definition under the new CC161, which narrows it to children under 14 and looks at ulterior purpose.  This amendment to the CC shows the dialogue between the courts and legislatures.

D. Appeals
Summary convictions can be appealed by the prosecutor, accused, or, in rare cases, by a s.96 Judge regarding questions of law.  Appeals for indictable offences go directly to the Court of Appeal, are decided by panels of 3 or 5 and decide questions of law or fact.  An appeal can be founded on 3 grounds:
1.    Conviction is unreasonable or cannot be supported by the evidence;
2.    Conviction entails a miscarriage of justice;
3.    Trial Judge made an error of law under CC686.1b.3, an appeal can be denied if now wrong or miscarriage of justice occurred.
If one of these three conditions is satisfied, either a new trial or an acquittal will be registered.  Either the accused or prosecutor can appeal to the SCC.

CHARTER:
The Charter consists of a variety of substantive (s.2 and s.15) and procedural rights (s.7-14).  Any criminal law that is challenged on Charter grounds must satisfy the Oakes Test in order to remain in place.  Remedies for Charter violations, including the exclusion of unconstitutionally collected evidence, termination of proceedings and the release of the accused are found in s.24.

s.7
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.  This includes the Crown disclosing all evidence to the accused’s counsel.

s.8
Everyone has the right to be secure against unreasonable search or seizure.  Privacy.

s.9
Everyone has the right not to be arbitrarily detained or imprisoned  This applies to random vehicle stops.

s.10
Everyone has the right on arrest or detention
1.    To be promptly informed of the reasons therefore
2.    To retain and instruct counsel without delay and be informed of that right; and
3.    To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

s.11
Any person charged with an offence has the right
1.    To be informed without unreasonable delay of the specific offence
2.    To be tried within a reasonable time
3.    Not to be compelled to be a witness in proceedings against that person in respect to the offence
4.    To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
5.    Not to be denied reasonable bail without just cause
6.    To trial by jury (except in military) where the maximum punishment for the offence is imprisonment for five years or more
7.    Not to be found guilty on account of any act or omission (some qualifications)
8.    If finally acquitted of the offence, not to be tried for it again
9.    If the punishment for an offence changes between the time of commission and the time of sentencing – get the benefit of the lesser punishment.

s.12
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment

s.13
A witness cannot have their testimony used against them in other proceedings, unless the prosecution is for perjury.

s.14
The right to an interpreter

s.24(2): Admissibility:
Under this section, any evidence that is gathered in a manner which infringes the Charter is not admissible if it would “bring the administration of justice into disrepute.”  Therefore, if a Charter right is violated, s.24(2) immediately comes into play.  Three considerations for whether evidence is admissible include:
1.    Fairness of the trial – would the admission of evidence obtained in violation of the Charter render the trial unfair.
2.    How serious was the Charter violation?
3.    Administration of justice – would it be called into disrepute if the evidence in question were allowed.
Courts look at both sides: 1. Would it be unjust to admit the evidence? or 2. Would it be unjust not to admit the evidence?

Frey v. Fedoruk (1950) SCC:
Frey was a peeping tom and was caught looking at Mrs. Fedoruk changing.  He was arrested without warrant.  BCCA said that Frey was guilty of a criminal offence at common law, which was legal justification for the arrest without warrant.  Cartwright J. states that “it is safer to hold that no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the CC, or can be established by the authority of some reported case as offence known to the law.  Such declaration should be made by Parliament and not by the Courts.

R. v. Jacob (1996) Ont. CA:
Was the appellant’s display of her breasts an indecent act under CC173.1.a?  If Community Standards of Tolerance Test is to be applied, it must first be determined that the context of the conduct was sexual.  Weiler J. asked whether a reasonable bystander would have viewed the act as being one of sexual gratification, either for the accused or someone else, and came to the conclusion that it was not and therefore lacked the sexual context needed to invoke CC173.1.a.  Osborne J. disagreed by saying that CC173.1.a does not require a sexual context in order to establish indecency and concluded that the trial judge and summary conviction appeal court judge both erred in law in applying the test to determine whether the conduct was indecent because they failed to look at the national community.

I.  SOURCES OF CRIMINAL LAW

INTRODUCTION:
Criminal law begins when a provincial legislature (regulatory offences only) or federal parliament (regulatory offences and criminal offences) deems certain conduct illegal.  Criminal laws are designed to denounce, punish and, to a lesser extent, deter inherently wrong behavior.  Regulatory offences (most offences are regulatory) seek to deter risky behavior and prevent harm before it happens.  These laws are not absolute and may fail Charter scrutiny (substantive fairness).  In addition, the specific Charter rights of the accused must be honored (procedural fairness), i.e. presumption of innocence (s.11d) and freedom from unreasonable search or seizure (s.8).  The basic elements of a criminal offence are the act or omission that is prohibited by the legislation, or actus reus, and the fault element, or mens rea.  If the Crown, beyond a reasonable doubt, proves these elements and there are no applicable defenses (self-defense, the defense of duress, defense of necessity, provocation), then the accused will be convicted.  The mens rea test can be applied in two ways – the objective standard (reasonable person in same circumstances) and the subjective standard (applies directly to the accused) for more serious crimes, such as murder.  Attempts and other unfulfilled crimes, along with participation in a crime, can also bring about conviction.

DIVISION OF POWERS:
s.91(27):
The federal government has jurisdiction over Criminal Law, except for the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.  This includes both a substantive and procedural element.
s.92(13):
Property and Civil Rights in the Province
s.92(14):
The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
s.92(15):
The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section.  Allows penal sanctions for provincial (regulatory) offences.

A. Creation of Offences
Most offences are found in the CC; however, they also appear in other federal statutes, including the Young Offenders Act and the Food and Drug Act.  The CC also outline rules for criminal procedure.  Summary Offences are lesser offences that carry no right to a jury trial (because s.11f of the Charter only provides this option for charges that carry a minimum sentence of five years).  In these proceedings, the accused is called the defendant.  Under CC787, provincial summary offences carry a six-month sentence and a fine of $2,000.  Indictable Offences are very serious and carry the option of being tried by judge and jury (CC574-672) or judge alone (CC552-572).  Some indictable offences, including murder, can only be pursued in a s.96 court.  Hybrid/Dual Procedure Offences allows the prosecutor to elect whether it will be tried as a summary or indictable offence.  Of course, if summary route is chosen, no jury is allowed and the maximum punishment will be less.

B. Prosecutors, Police and Prisons
The AG of the Province prosecutes offences under the CC.  The AG of Canada prosecutes drug offences (R. v. Hauser).  Policing is a provincial right found in s.92(14).  As such, provincial please are given full authority to enforce the CC.  Prisons are divided because federal prisons exist under s.91(28) and provincial prisons under s.92(6).  The provinces have jurisdiction over those sentenced to less than two years and subsequently deals with the majority of criminal cases, while the federal government administers penitentiaries for those sentenced to longer periods.

C. Trials and Trial Courts
Provincial Court Judges can hear most serious offences as long as the accused chooses no preliminary inquiry and elects to be tried in provincial court (CC554 trial in provincial court by consent).  CC469 says that every court of criminal jurisdiction can try any indictable offence other than murder (C235), treason (CC47), alarming her majesty (CC49), intimidating Parliament (CC51) or inciting mutiny, piracy or sedition (CC53).  Both summary conviction and provincial offences can generally only be punished by six-months and $2,000.  Only s.96 Judges can sit with a jury.