Course:Law 525.1 - Criminal Law and Procedure/Syllabus
Law 525.001: Criminal Law and Procedure
Instructor: Ingrid Friesen Instructor email: ifries01@mail.ubc.ca Class times: T 6 - 8:30 pm Th – 2 – 4:30 Office Hours – TBA
Introduction:
The principal objective of this course is to provide students with both the theoretical knowledge and the practical skills required to practice Canadian criminal law. Upon successful completion of the course, students will have the core knowledge and the ability to identify key legal issues and refer to the appropriate sources of applicable law, (statute and caselaw) in order to make cogent and persuasive arguments from the perspective of both the prosecution and the defence.
Learning objectives/expected learning outcomes:
Students will become familiar with Canadian criminal law, both substantively and procedurally. Students will become familiar with the process by which criminal offences are investigated, prosecuted and defended.
Materials: Steve Coughlan, Criminal Procedure 2nd ed. (Toronto: Irwin Law, 2012) Kent Roach, Criminal Law 5th ed (Toronto: Irwin Law 2012)
Criminal Code: I have marked Martins and Tremeears Criminal Codes as “Optional” because the entire Criminal Code is available online on many sites. However, it is recommended that you purchase a hard copy of the Criminal Code in the event that the UBC law school does not have reliable internet access. Further, Tremeears has an Annotated version that is extremely helpful for anyone intending to practice criminal law.
Academic Integrity and Plagiarism
All UBC law students are subject to the University's rules on Academic Misconduct (http://vpacademic.ubc.ca/integrity/ubc-regulation-on-plagiarism/), and are expected to act with academic integrity at all times. Students should be especially aware of the University's rules in relation to plagiarism. If you plagiarize, you may be subject to penalties set out in the UBC calendar: (http://www.calendar.ubc.ca/vancouver/index.cfm?tree=3,54,111,959)
If you would like to learn more about academic misconduct, visit the UBC Library's website on academic integrity (http://learningcommons.ubc.ca/guide-to-academic-integrity/). Examples of academic misconduct can also be found in the UBC Annual Report on Student Discipline (http://universitycounsel.ubc.ca/discipline/).
Marking Written project – 40% Participation in classroom discussions and demos - 20% Final Exam – 40%
Written Project: Students will each produce a written project that mimics an actual criminal file (the mock file). This project will provide the basis for an integrated learning experience about the actual practice of criminal law. At the beginning of the semester, each student will create a fact pattern (based on real or imagined facts) and will share that fact pattern with the rest of the class. Throughout the semester, students will learn about procedural and substantive law and apply these concepts to their own fact patterns in written memos and reports as part of their file. Students will also be expected to explore the application of various legal concepts to their own projects, and those of their fellow students through class discussion. The initial fact pattern and the Information is due early in the semester. The remainder of the file will not be due until the last day of class as it is expected that students will add to and amend their work-in-progress to incorporate many of the concepts and issues that form part of each area of study. It will be helpful for students to keep up with their written assignments as the in-class discussions and demos will reflect the work done in the written assignments.
Each file will contain the following: 1) Fact Pattern – a brief one page outline of a fact pattern that describes an incident involving a criminal act or series of acts and the party or parties involved (your client). Students will provide this fact pattern at the beginning of the semester to the Instructor and fellow students – and this will provide the basis for the development of each student’s file as well as class discussions. Due on September 4, 2014. 2) Information – students will provide their version of a charging document referring to the specific offence or offences alleged to have been committed – due on September 23, 2014 3) Report to Crown Counsel – students will provide a summary of the incident and evidence against the client, written from the perspective of the investigator/police. Due at end of semester. 4) Bail submissions: memo - students will chose the perspective of the crown or defence in making submissions either for the detention or the release of the client. Due at end of the semester. 5) Sentencing: memo - students will choose the perspective of the crown or defence in making submissions on sentence. Due at end of the semester. 6) File Memo – provide a summary of the strengths and weaknesses of your client’s case. Include charter arguments and defences and comments on potential witnesses.
Classroom Discussions:
Students are encouraged to do creative research to familiarize themselves with Canadian criminal law fact patterns and legal concepts. It is recommended that students become acquainted with various websites such as the Canlii website and BC Courts websites to facilitate their research. Students will also be encouraged to discuss with the class how various Canadian legal procedures and concepts differ from the practice and procedures in the countries where they obtained their law degrees.
Classroom Demonstrations From time to time, students will be given the opportunity to participate in classroom demonstrations as indicated in this syllabus. Please volunteer in advance if you would like to participate.
Course Schedule:
Class 1 – September 2, 2014
Course Orientation
1) Student Introductions 2) Overview of course 3) Introduction to websites esp: CANLII: https://www.canlii.org/en/ and http://www.lawsociety.bc.ca/page.cfm?cid=11&t=Legal-Resources#research 4) Introduction to Written Assignment – Mock Criminal File
Readings:
Rule of Law: https://www.lawsociety.bc.ca/docs/publications/reports/turriff-speech.pdf
Class 2 and 3– Sept 4 and 9, 2014
1) Constitutional Issues and Sources of Criminal Law in Canada
a) Federal/Provincial Division of Powers Constitution Act, 1867, 30 & 31 Vict, c 3 (sections 91 and 92) Canadian Charter of Rights and Freedoms – The Constitution Act, 1982 (sections 7 to 14, section 52)
b) Statute: Criminal Code, R.S.C. 1985, c. C-46 Controlled Drugs and Substances Act (S.C. 1996, c. 19) Canada Evidence Act (R.S.C., 1985, c. C-5) Regulatory Statutes – see Class 22
c) Common Law https://www.canlii.org/en/ and http://www.lawsociety.bc.ca/page.cfm?cid=11&t=Legal-Resources#research
Readings:
Coughlan, Chapters 1 and 2 Roach: Chapter 1 and 2
CCC section 8, section 9
R. v. Malmo-Levine, 2003 SCC 74 at paras 73 – 79 R. v. Heywood, [1994] 3 S.C.R. 103 R. v. Labaye, 2005 SCC 80, [2005] 3 SCR 728
Written Project: Fact Pattern for Mock Criminal File due Sept 4, 2014 (please email to ifries01@mail.ubc.ca)
Class discussions: How does the Canadian legal system differ from the system where you studied?
Class 4 & 5 – September 11 & 16, 2014
Investigation of Criminal Offences
1) Police powers
2) Evidence – types of evidence obtained by police
3) Charter issues arising during investigation eg- statements
- seizure
- arrest
R v Hebert, 1990 Canlii 118 R v Suberu, 2009 S.C.C. 33 R v Sordini, 2013 BCPC 14 R v. Cole, 2012 S.C.C. 53
Readings:
Coughlan pp. 8 – 24 (reread), - Chapters 4, 5 and 7
Discussions: o What kind of evidence would police accumulate against the accused in your fact scenario? o Can you make suggestions as to what evidence they may accumulate against the accused in your fellow students’ fact patterns? o What Charter issues may arise?
Written project – write Report to Crown Counsel summarizing the evidence against the accused in your fact pattern.
Class 6 – Sept 18, 2014 – Initial Stages of a Criminal Case
Court visit – Vancouver Provincial Court – 222 Main Street Vancouver - courtrooms 101, 102 and 307 – bail, plea and arraignment courts - START AT 1:30 AT 222 MAIN STREET COURTHOUSE ENTRY HALL
Class 7 – September 23, 2014
Initial Stages of a Criminal Case
a) Charge Approval – Information/Indictment - charge approval standard o special cases - laying charges – summary/indictable/hybrid b) Bail - Detention or Release - S. 515 – Primary/Secondary/Tertiary grounds - Reverse onus - Conditions of release
Readings:
Coughlan: Chapter 3, 6 and Chapter 11 pp: 328 to 347
Written project 1) Information – Due September 23, 2014 please send by email to instructor 2) Bail Submissions memo – seek the detention or the release of your client - point form is fine
Classroom Demo
Three partners will prepare a bail hearing presenting Crown/Defence bail submissions.
Class 8 & 9– September 25 and 30, 2014
Early Pretrial Matters
a) Disclosure - R v. Stinchcomb, [1991] 3 S.C.R. 326 - R v. O’Connor, [1995] 4 S.C.R. 411 - CCC sections 278.1- 278.91 b) Alternative Measures c) Negotiations – Arraignment Court – Relationships between Crown and Defence d) Preliminary Inquiries/Election for trial
Readings:
Coughlan – Chapter 8, Chapter 10
Discussions:
- What requests for disclosure would you make on your file?
- Suggest possible plea negotiations.
Classroom Demos: Using two different fact patterns, two sets of partners will prepare Crown/Defence negotiations seeking an agreement on an early disposition for a guilty plea.
Class 10 – Trials and Preliminary Inquiries – Oct 2, 2014
1) Adversarial Process 2) Presumption of Innocence and Burden of Proof 3) Neutral Impartial Trier of Fact 4) Role of Prosecutor 5) Role of Defence
Readings:
Coughlan – Chapters 9 and 11
Discussions: - What witnesses would you call : o If prosecuting your client? o If defending your client? - Would you call your client to the stand to testify?
Class 11 – Substantive Law - Intro - October 7 2014
1 )Interpretation of Criminal Code Provisions
- definitions
- strict construction
- purposive interpretation
- French/English
- Charter as an interpretive tool
2) Identifying elements of the offence
a) Introduction to Actus Reus
b) Introduction to Mens Rea
Readings: Review/reread : Coughlin Chapters 3 and 11 Roach: Chapter 3 pp 81 – 93
Classroom Discussions:
Talk about your fact pattern and the various elements that must be proven.
Think about what defences you think may be possible and lead a discussion about them.
Class 12 & 13 – The Criminal Act – October 9 and 14, 2014
Actus Reus
a) Acts and Statutory Conditions b) Voluntary and Willed c) Act of Possession d) Consent as an element of Actus Reus e) Causation f) Omissions
Readings: Roach – Chapter 3
Classroom Discussions: What is the actus reus in your charge(s)? How could it be proven in court?
Class 14 & 15 – Oct 16 & 21 , 2014
Mens Rea
a) Intention and Ulterior Mens Rea b) Subjective mens rea c) Knowledge d) Willful blindness e) Recklessness
Readings:
Roach – Chapter 5
Classroom discussions: What mens rea issues arise in your fact pattern?
Class 16 – October 23, 2014
Extensions of Criminal LIability
a) Attempts b) Conspiracy c) Counseling a crime d) Aiding and Abetting e) Parties to an act f) Accessory after the fact
Readings:
Roach: Chapter 4
Classroom Demo – 1 – 2 participants Pick anyone’s fact pattern and create a scenario(s) using as many of the concepts in this class as is possible.
Class 17 & 18 – October 28 and 30, 2014
Selected Defences:
1) Mental Disorder 2) Voluntary Acts Negativing Actus Reus and Automatism 3) Intoxication 4) Self Defence/Defence of Property 5) Necessity/Duress pp 353 - 380 6) Entrapment 42 – 44
Readings:
Roach Chapters 7, 8 & 9
Classroom Demo – 1 – 2 participants Pick anyone’s fact pattern and create a scenario(s) using as many of the concepts from this class (defences) as is possible.
Class 19 – Nov 4, 2014 – Guest Instructors
Charter Issues – A View from the Bench:
The Honourable Judge Harvey Field The Honourable Judge Melissa Gillespie
Readings: Roach Chapter 2 pp. 31 – 80 and Chapter 12
Class 20 – Nov 6, 2014 – Guest Instructor
Defences – Entrapment
Defence Counsel: Marilyn Sandford
Readings: Roach pp 42 - 44
Class 21 - Nov 13 2014
TBA – Guest Lecturer or Court visit
Class 22 – Nov 18 2014
Regulatory Offences
Absolute and Strict Liability Offences
Corporate Offences
Readings: Roach – Chapter 6 B.C. Offence Act [RSBC 1996] CHAPTER 338 Motor Vehicle Act [RSBC 1996] Chapter 318
Class 23 – Nov 20, 2014 – Sentencing
General Principles of Sentencing
- Jail/CSO - Fines/ Probation - Discharges – Absolute and Conditional - Recognizance Orders – s. 810 - Victim Surcharges, Stand- alone Orders, DNA, Weapons Prohibitions - Sentencing Aboriginal Offenders
R v. Gladue, [1999] I S.C.R. 60
Readings: Roach Chapter 11 R. v. Fallowfield (1973), 13 C.C.C. 92d0 450 (B.C.C.A.) CCC – sections 716 to 743
Discussions/Class Demo: What is the range of sentence for your client? What are the sentencing considerations for both the crown and defence? Give sentencing submissions for your client (1 – 2 volunteers)
Written Project: Sentencing Memo: make submissions for sentencing position for either the crown or defence. (point form is acceptable)
Class 24 – Nov 25, 2014 – Appeals
Appeals Appeals – Summary Conviction and Indictable Appeals
Readings: Coughlan Chapter 12 CCC sections 743.6 – 748.1
Class 25 – Nov 27 2014
Course Review