LAW1101 21F – Fundamentals of Law
Assignment 1: Legislative interpretation
Due date: Wednesday, November 10, 2021 at 3:00pm
Instructions:
- The due date for the assignment is end of day, Wednesday, November 10, 2021 at 3:00pm.
- Students may do this assignment in groups of up to four students, or you may complete this assignment individually. All members of a group will receive the same mark.
- You must submit your assignment through Brightspace. If you are completing the assignment in a group, choose one member to submit the assignment on behalf of the group.
- Please ensure the names of all group members are on your assignment itself.
- Please include the questions in your assignment submission.
- Please do not include the legislation in your assignment submission.
You are to read two excerpts from legislation and then answer questions about each of them. The questions are weighted differently and the marks for each question are included.
There are 2 Parts in this assignment:
- Part 1, dealing with the Ontario Residential Tenancies Act, 2006, is worth 30 marks;
- Part 2, dealing with the federal Criminal Code, is worth 50 marks.
You do not need to refer to any outside sources other than the included legislation.
Please make sure to refer to the relevant provisions of the legislation in your answer. You need to cite the section number, the subsection number, the paragraph number and the subparagraph number. For the purposes of this assignment, a reference would look like:
Residential Tenancies Act, 2006, s. 31, ss. (1), para. (b), subpara. (i)
or
Residential Tenancies Act, 2006, subpara. 31(1)(b)(i)
Remember that you are being asked specific questions and are expected to find specific answers. It will not be enough to simply paste large chunks of the legislation in your answers. You must reference the correct provision in the legislation that answers the question, and you must explain the answer in your own words in order to get full credit.
PART 1 – Residential Tenancies Act, 2006
Excerpt from the Residential Tenancies Act, 2006 (S.O 2006, ch. 17)
Landlord’s responsibility to repair
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
2006, c. 17, s. 20 (1).
Same
(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.
2006, c. 17, s. 20 (2).
Landlord’s responsibility re services
21 (1) A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.
2006, c. 17, s. 21 (1).
Non-payment
(2) For the purposes of subsection (1), a landlord shall be deemed to have withheld the reasonable supply of a vital service, care service or food if the landlord is obligated to pay another person for the vital service, care service or food, the landlord fails to pay the required amount and, as a result of the non-payment, the other person withholds the reasonable supply of the vital service, care service or food.
2006, c. 17, s. 21 (2).
Landlord not to interfere with reasonable enjoyment
22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.
2006, c. 17, s. 22.
Landlord not to harass, etc.
23 A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.
2006, c. 17, s. 23.
Changing locks
24 A landlord shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.
2006, c. 17, s. 24.
Privacy
25 A landlord may enter a rental unit only in accordance with section 26 or 27.
2006, c. 17, s. 25.
Entry without notice, emergency, consent
26 (1) A landlord may enter a rental unit at any time without written notice,
(a) in cases of emergency; or
(b) if the tenant consents to the entry at the time of entry.
2006, c. 17, s. 26 (1).
Same, housekeeping
(2) A landlord may enter a rental unit without written notice to clean it if the tenancy agreement requires the landlord to clean the rental unit at regular intervals and,
(a) the landlord enters the unit at the times specified in the tenancy agreement; or
(b) if no times are specified, the landlord enters the unit between the hours of 8 a.m. and 8 p.m.
2006, c. 17, s. 26 (2).
Entry to show rental unit to prospective tenants
(3) A landlord may enter the rental unit without written notice to show the unit to prospective tenants if,
(a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other;
(b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and
(c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so.
2006, c. 17, s. 26 (3).
Entry with notice
27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
1. To carry out a repair or replacement or do work in the rental unit.
2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
4. To carry out an inspection of the rental unit, if,
i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
ii. it is reasonable to carry out the inspection.
5. For any other reasonable reason for entry specified in the tenancy agreement. 2006, c. 17, s. 27 (1).
Same
(2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit.
2006, c. 17, s. 27 (2).
Contents of notice
(3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m.
2006, c. 17, s. 27 (3).
Entry by canvassers
28 No landlord shall restrict reasonable access to a residential complex by candidates for election to any office at the federal, provincial or municipal level, or their authorized representatives, if they are seeking access for the purpose of canvassing or distributing election material.
2006, c. 17, s. 28.
Tenant applications
29 (1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:
1. An order determining that the landlord has breached an obligation under subsection 20 (1) or section 161.
2. An order determining that the landlord, superintendent or agent of the landlord has withheld the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfered with the reasonable supply of any vital service, care service or food.
3. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.
4. An order determining that the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the rental unit.
5. An order determining that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.
6. An order determining that the landlord, superintendent or agent of the landlord has illegally entered the rental unit.
2006, c. 17, s. 29 (1).
Time limitation
(2) No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.
2006, c. 17, s. 29 (2).
Order, repair, comply with standards
30 (1) If the Board determines in an application under paragraph 1 of subsection 29 (1) that a landlord has breached an obligation under subsection 20 (1) or section 161, the Board may do one or more of the following:
1. Terminate the tenancy.
2. Order an abatement of rent.
3. Authorize a repair or replacement that has been or is to be made, or work that has been or is to be done, and order its cost to be paid by the landlord to the tenant.
4. Order the landlord to do specified repairs or replacements or other work within a specified time.
5. Order the landlord to pay a specified sum to the tenant for,
i. the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord’s breach, and
ii. other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord’s breach.
6. Prohibit the landlord from charging a new tenant under a new tenancy agreement an amount of rent in excess of the last lawful rent charged to the former tenant of the rental unit, until the landlord has,
i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and
ii. completed the specified repairs or replacementsor other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.
7. Prohibit the landlord from giving a notice of a rent increase for the rental unit until the landlord has,
i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and
ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.
8. Prohibit the landlord from taking any rent increase for which notice has been given if the increase has not been taken before the date an order under this section is issued until the landlord has,
i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and
ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.
9. Make any other order that it considers appropriate.
2006, c. 17, s. 30 (1).
Advance notice of breaches
(2) In determining the remedy under this section, the Board shall consider whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the Board. 2006, c. 17, s. 30 (2).
Other orders re s. 29
31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,
(a) order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;
(b) order that the landlord, superintendent or agent pay a specified sum to the tenant for,
(i) the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and
(ii) other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;
(c) order an abatement of rent;
(d) order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;
(e) order that the tenancy be terminated;
(f) make any other order that it considers appropriate.
2006, c. 17, s. 31 (1).
Same
(2) If in an application under any of paragraphs 2 to 6 of subsection 29 (1) it is determined that the tenant was induced by the conduct of the landlord, the superintendent or an agent of the landlord to vacate the rental unit, the Board may, in addition to the remedies set out in subsection (1), order that the landlord pay a specified sum to the tenant for,
(a) all or any portion of any increased rent which the tenant has incurred or will incur for a one-year period after the tenant has left the rental unit; and
(b) reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur. 2006, c. 17, s. 31 (2).
Order, s. 29 (1), par. 5
(3) If the Board determines, in an application under paragraph 5 of subsection 29 (1), that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex, or caused the locking system to be altered, during the tenant’s occupancy of the rental unit without giving the tenant replacement keys, and if the Board is satisfied that the rental unit is vacant, the Board may, in addition to the remedies set out in subsections (1) and (2), order that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else.
2006, c. 17, s. 31 (3).
Effect of order allowing tenant possession
(4) An order under subsection (3) shall have the same effect, and shall be enforced in the same manner, as a writ of possession.
2006, c. 17, s. 31 (4).
Expiry of order allowing tenant possession
(5) An order under subsection (3) expires,
(a) at the end of the 15th day after the day it is issued if it is not filed within those 15 days with the sheriff who has territorial jurisdiction where the rental unit is located; or
(b) at the end of the 45th day after the day it is issued if it is filed in the manner described in clause (a).
2006, c. 17, s. 31 (5).
Eviction with termination order
32 If the Board makes an order terminating a tenancy under paragraph 1 of subsection 30 (1) or clause 31 (1) (e), the Board may order that the tenant be evicted, effective not earlier than the termination date specified in the order.
2006, c. 17, s. 32.
PART 1 – Questions on the Residential Tenancy Act, 2006
1. Benno rents an apartment in a house. Some of the ductwork has been removed, and Benno must purchase electric space heaters to heat his space. Benno asks the landlord to repair it, but the landlord says that since Benno knew about the missing ductwork before Benno signed the lease, the landlord isn’t responsible for the repairs. Benno comes to you seeking advice about what he can do. What do you tell Benno about the landlord’s obligations? Does it matter that Benno knew about the missing ductwork before signing the lease? What are Benno’s options? (4 marks)
2. Arturo is a landlord who rents a house near Algonquin College. Arturo is unhappy with his tenants, whom he claims have damaged the house. He would like. your advice about whether he can change the locks on the house. What advice do you give the landlord? Can he do this? What might be some of the consequences if he does? (4 marks)
3. Under what conditions can Arturo (who you met in question 2) enter the house he rents without giving notice to his tenants? (4 marks)
4. Under what conditions can Arturo enter the house after providing notice? (4 marks)
5. How much advance notice must Arturo provide if he is entering the house? (2 marks)
6. During what time of day must Arturo enter the house if he is entering after providing notice? (2 marks)
7. If Benno (who you met in question 1) believes that his landlord is harassing or threatening Benno, what can Benno do? (4 marks)
8. What orders can be made in response to what Benno does in question 7? (4 marks)
9. Under what conditions can a landlord be fined by the Board? How much is the maximum fine? (2 marks)
PART 2 – Criminal Code of Canada
Excerpt from the Criminal Code of Canada (R.S.C., 1985, c. C-46 )
Homicide
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
Kinds of homicide
(2) Homicide is culpable or not culpable.
Non culpable homicide
(3) Homicide that is not culpable is not an offence.
Culpable homicide
(4) Culpable homicide is murder or manslaughter or infanticide.
Idem
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
Exception
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.
When child becomes human being
223 (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not
(a) it has breathed;
(b) it has an independent circulation; or
(c) the navel string is severed.
Killing child
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.
Death that might have been prevented
224 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by re- sorting to proper means.
.
Death from treatment of injury
225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
Acceleration of death
226 Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.
Exemption for medical assistance in dying
227 (1) No medical practitioner or nurse practitioner commits culpable homicide if they provide a person with medical assistance in dying in accordance with section 241.2.
Exemption for person aiding practitioner
(2) No person is a party to culpable homicide if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2.
Reasonable but mistaken belief
(3) For greater certainty, the exemption set out in sub- section (1) or (2) applies even if the person invoking it has a reasonable but mistaken belief about any fact that is an element of the exemption.
Non-application of section 14
(4) Section 14 does not apply with respect to a person who consents to have death inflicted on them by means of medical assistance in dying provided in accordance with section 241.2.
Definitions
(5) In this section, medical assistance in dying, medical practitioner and nurse practitioner have the same meanings as in section 241.1.
Killing by influence on the mind
228 No person commits culpable homicide where he causes the death of a human being
(a) by any influence on the mind alone, or
(b) by any disorder or disease resulting from influence on the mind alone,
but this section does not apply where a person causes the death of a child or sick person by wilfully frightening him.
Murder
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Murder in commission of offences
230 Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146 to 148 (escape or rescue from prison or lawful custody), section 270 (assaulting a peace officer), section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage taking), 343 (robbery), 348 (breaking and entering) or 433 or 434 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or at- tempting to commit the offence,
and the death ensues from the bodily harm;
(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom.
(d) [Repealed, 1991, c. 4, s. 1]
Classification of murder
231 (1) Murder is first degree murder or second degree murder.
Planned and deliberate murder
(2) Murder is first degree murder when it is planned and deliberate.
Contracted murder
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or any- thing of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.
Murder of peace officer, etc.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties;
(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
Hijacking, sexual assault or kidnapping
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
Criminal harassment
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
Murder — terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.
Murder — criminal organization
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when
(a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
(b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.
Intimidation
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1.
Second degree murder
(7) All murder that is not first degree murder is second degree murder.
Murder reduced to manslaughter
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
What is provocation
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a na- ture as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
Questions of fact
(3) For the purposes of this section, the questions
(a) whether the conduct of the victim amounted to provocation under subsection (2), and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
Death during illegal arrest
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
Infanticide
233 A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.
Manslaughter
234 Culpable homicide that is not murder or infanticide is manslaughter.
Punishment for murder
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Minimum punishment
(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment..
Manslaughter
236 Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Punishment for infanticide
237 Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Killing unborn child in act of birth
238 (1) Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life.
Saving
(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of that child.
Attempt to commit murder
239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 272 or 273, sub- section 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
Accessory after fact to murder
240 Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life.
PART 2 – Questions on the Criminal Code of Canada
1. What is the definition of murder? (2 marks)
2. What are the four different ways that a person may commit culpable homicide?
(2 marks)
3. What is culpable homicide called if it is not murder or infanticide? (2 marks)
4. Marlys is a nurse practitioner who has been asked to assist in an assisted death pursuant to section 241.2 of the Criminal Code. She comes to you for advice about whether this might potentially make her liable for homicide. What do you tell her? (2 marks)
5. Under what circumstances would a person who has committed culpable homicide be liable for murder even if the person neither meant to cause the death of another person nor acted knowing that death would be likely? (4 marks)
6. Under what circumstances would a person who has committed murder be liable for first degree murder even if the person did not engage in planning and deliberation? (4 marks)
7. Panos knows his roommate Constantine suffers from depression. Panos also knows that the depression is seriously worsened whenever Constantine listens to Leonard Cohen music. Panos plays Leonard Cohen music non-stop for several days and ultimately Constantine kills himself. Is Panos liable for murder or manslaughter? Explain. (4 marks)
8. Under what circumstances would a person who is liable for murder be liable only for manslaughter instead? (4 marks)
9. Can a person who terminates the life of a fetus prior to birth be liable for murder, manslaughter or infanticide? Would it make a difference if the fetus survived for a week after being born? Explain. (4 marks)
10. What is the minimum punishment for murder? Does it matter whether it is first- degree murder or second-degree murder? (2 marks)
11. Norbert, the father of a newborn boy, has been charged with killing his infant son. Are there any circumstances in which Norbert may be charged with infanticide rather than with murder or manslaughter? (2 marks)
12. What is the minimum punishment for manslaughter if a firearm is used in the commission of an offence? (2 marks)
13. If a person has been convicted previously of attempted murder, and they are convicted a second time, what is the minimum punishment for their second conviction for attempted murder? (2 marks)
14. Lori Grimes is giving birth to a baby (Judith). Unfortunately, there are complications, and Maggie Greene, who is assisting with the birth, must choose between allowing Lori or Judith to live. Maggie ultimately chooses saving Judith. If Maggie had chosen to save Lori instead, would she have been liable for culpable homicide of any sort? (2 marks)
15. Criminal mastermind Scorpio wishes to collect the insurance money on the cruise ship he owns. He plants a bomb on board, which goes off while the ship is at sea. 3000 people are killed. Scorpio is arrested and charged with murder. Scorpio’s lawyer argues that Scorpio did not have the intent to kill, just to sink the boat for insurance. Is Scorpio liable for murder? Explain. (4 marks)
16. Gregory is a senior partner at a law firm. He is sitting in his corner office on the 25th floor of an office tower. He hears a commotion and realizes that Glenn, a lawyer who works on the 35th floor has fallen through a window. There is no chance that Glenn will survive the fall. Gregory pulls out his shotgun from under his desk. As Glenn falls past Gregor’s window, Gregory shoots Glenn in the head, killing him before he hits the ground. Is Gregory liable for murder? Explain. Would it have made a difference if Gregory knew that Glenn was suffering from brain cancer and has no more than two weeks to live? (4 marks)
17. Phillippa has killed her spouse, Martina by stabbing her in the abdomen with a kitchen knife (which is not a restricted weapon). There is no dispute that Phillippa voluntarily caused the death of Martina – in other words, Phillippa has committed the actus reus of culpable homicide. None of the circumstances described in section 230 of the Criminal Code apply. None of the circumstances described in subsection 231(3) to subsection 231(6.2) apply to Martina’s killing. In your own words, describe what factors a prosecutor will consider in deciding whether to charge Phillippa with first-degree murder, second-degree murder or manslaughter. In other words, what distinguishes first-degree murder from second-degree murder from manslaughter? (4 marks)
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