scholarly journals The Impact of Vaillancourt v. the Queen on Canadian Criminal Law

1969 ◽  
pp. 443
Author(s):  
Isabel Grant
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Supreme Court Decision ◽  
Criminal Code ◽  
Court Decision ◽  
Mens Rea ◽  
Objective Standard ◽  
The Impact

The 1987 Supreme Court decision of Vaillancourt Struck down s. 213(d) of the Criminal Code, finding that the constructive murder provision violated ss. 7and 11(d) of the Charter. This paper looks at how the courts have since applied Vaillancourt to other sections of the Criminal Code, particularly the remaining murder provisions. The analysis is based largely on a consequence-circumstance distinction, where legally consequences involve the harm caused by the accused and the circumstances refer to conditions that must be shown to exist before there can be a conviction. However, because murder is a unique crime with a "special stigma" attached to it, courts will not allow an objective standard of mens rea to form the basis of a murder conviction.

scholarly journals Les aléas de la fraude en droit criminel

2005 ◽  
Vol 27 (4) ◽  
pp. 813-851
Author(s):  
Pierre Rainville
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Criminal Code ◽  
Court Decision ◽  
Mens Rea ◽  
Criminal Offence ◽  
Territorial Jurisdiction ◽  
The Supreme Court ◽  
Definition Of ◽  
The Impact

Even though section 338 Cr.C. appears in Part VIII of the Criminal Code entitled « Fraudulent transactions relating to Contracts and Trade », the criminal offence of fraud is of a much broader scope. The liberal interpretation received from the courts has transformed this crime into one of the widest and sometimes most unpredictable offences. The author first discusses Canada's territorial jurisdiction over international fraud in the light of the recent Libman case. He then proceeds to examine the impact of the Supreme Court decision in Vezina v. R. on the « deprivation » requirement in the definition of fraud. This text also concentrates on the objective-subjective mens rea dilemna and on a comparison of the constitutive elements of fraud, theft and false pretences. The author finally concludes that sections 320 and 338 Cr.C call out for immediate reform.

Negligent Rape in Croatian Criminal Law: Was Legal Reform Necessary?

2020 ◽  
Vol 45 (1) ◽  
pp. 126-160
Author(s):  
Marin Mrčela ◽  
Igor Vuletić ◽  
Goran Livazović
Keyword(s):  
Criminal Law ◽  
Practical Importance ◽  
Legal Reform ◽  
Criminal Code ◽  
Mens Rea ◽  
Sexual Offences ◽  
Serbia And Montenegro ◽  
The Third ◽  
Rape Law ◽  
The Impact

This paper discusses the issue of negligent rape and liability for unreasonable belief in the victim`s consent in the context of Croatian criminal law. Modern rape law presents many challenges to both lawmakers and judges, with criminalizing negligence being only one of those challenges. This became more interesting in Croatia after amendments to the Criminal Code in 2011 (in effect since 2013), that criminalized unreasonable mistake of facts in the crime of rape. Croatian rape law has undergone significant changes related to these amendments. However, this paper focuses only on the aspect of unreasonable mistake of consent, this being both the most controversial and of great practical importance. The first section describes the elements of rape according to the Croatian Criminal Code along with an interpretation of those elements in the jurisprudence of the Croatian Supreme Court. Special attention is placed on the problem of mens rea and (un)reasonable belief in consent. The discussion also identifies the reasons for reform and the impact of the Sexual Offences Act of England and Wales (2003), which served as a model for Croatian legislators. The second section analyzes the results of research conducted by Croatian judges on the relevant status of the mistake of facts defense, as well as the importance of the victim`s resistance in terms of achieving a conviction, with special regard to the rate of rape convictions in Croatian law. The third section reviews comparative regional laws (Slovenia, Serbia, and Montenegro) with the goal of positioning the new Croatian rape law in a regional context. The last section discusses the necessity of criminalization of the negligent form of rape from the perspective of trends and standards created in Croatian theory and jurisprudence in the years prior to this amendment of the law.

scholarly journals Unrewarded donors: The search for victims in the wake of Kapa

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Criminal Law ◽  
Critical Analysis ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Criminal Offending ◽  
Definition Of

<p>This paper provides a critical analysis of the sentence of reparation in New Zealand, as set out by s 32 of the Sentencing Act 2002. The scope of the sentence is examined with particular regard to the recent Supreme Court decision, which limited reparation so that only victims of offences can benefit from the sentence. The definition of “victim”, as determined by the Sentencing Act, is confined to direct victims of criminal offending. Thus, any indirect victim suffering harm or loss from criminal offending cannot benefit from reparation. This paper questions whether that limitation gives reparation an appropriate scope, or whether some extension should be made so that the sentence is not restricted in its application to only benefit direct victims. In so doing, this paper argues that the criminal law is the suitable domain to address such issues of compensation and therefore, an extension of the reparation sentence is required. Alternative ways of limiting reparation to address this compensation issue are outlined. Ultimately it is proposed that an additional provision should be included within the definition of “victim”, for the purpose of s 32, so that indirect victims can also benefit from a sentence of reparation.</p>

scholarly journals PERTANGGUNGJAWABAN PIDANA DAN PEMIDANAAN TERHADAP PELAKU PEDOFILIA DALAM HUKUM PIDANA INDONESIA

2017 ◽  
Vol 6 (1) ◽  
pp. 23
Author(s):  
Anak Agung Ayu Sinta Paramita Sari
Keyword(s):  
Research Methods ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Physical Contact ◽  
Court Decision ◽  
Mens Rea ◽  
German State ◽  
The Government ◽  
The Mind

In criminal law there are a criminal act, criminal liability, and criminalization. Criminal liability consept in criminal law is a central concept be known mens rea. Mens rea concept based an act doesn’t not result in a person guilty unless the mind is bad. In Indonesian Criminal Code there regulates the negative form of criminal liability, contained in article 44. In article 44 Indonesian criminal code mentions that the mental disorder can be held accountable for criminal liability. Pedophilia is a sexual disorder that possessed by adults who get sexual gratification through physical contact with children.In criminal law pedophilia known as the crime of sexual abuse of minors. There is a vagueness of norms that occurs between article 44 Indonesian criminal code with a court decision regarding pedophilia. Court decision handed down on the accused in this case usually is imprisonment, whereas in the German state people who suffer from pedophilia in rehabilitation by the government. German Criminal Code has arranged the said provisions, this is because the government is aware of the psychological condition of a pedophile. A pedophile will not recover if the punishment given only in the form of imprisonment, without a destination for healing and repair perpetrators later, because criminal punishment should pay attention to the properties or the circumstances of the offender, so that it becomes appropriate punishment and provide benefits to the perpetrator.The research methods used in this paper is a normative legal research methods. Didalam hukum pidana terdapat perbuatan pidana, pertanggungjawaban pidana, serta pemidanaan. Konsep pertanggungjawaban dalam hukum pidana merupakan konsep sentral yang dikenal dengan ajaran kesalahan (mens rea). Doktrin mens rea dilandaskan pada suatu perbuatan tidak mengakibatkan seseorang merasa bersalah kecuali jika pikiran orang itu jahat. KUHP Indonesia mengatur mengenai bentuk negatif dari pertanggungjawaban pidana, yang terdapat pada pasal 44 KUHP. Pasal 44 KUHP menyebutkan bahwa orang yang sakit jiwanya serta orang yang mengalami cacat dalam pertumbuhannya tidak dapat dimintai pertanggungjawaban pidana. Pedofilia merupakan suatu penyakit gangguan preferensi seksual yang dimiliki oleh orang dewasa yang mendapatkan kepuasan seksual melalui kontak fisik dengan anak-anak. Di dalam hukum pidana Indonesia pedofilia dikenal sebagai tindak pidana pencabulan anak dibawah umur. Terdapat kekaburan norma yang terjadi antara Pasal 44 KUHP dengan putusan pengadilan mengenai kasus ini. Putusan yang dijatuhkan padaterdakwa dalam kasus ini biasanya adalah hukuman penjara, sedangkan di Negara Jerman orang yang mengidap pedofilia direhabilitasi oleh Pemerintah. Kitab Undang-Undang Hukum Pidana Jerman telah mengatur mengenai ketentuan tersebut, hal ini dikarenakan Pemerintah sadar akan kondisi kejiwaan dari seorang pedofilia. Seorang pedofilia tidak akan sembuh jika hukuman yang diberikan hanya berupa kurungan penjara, tanpa ada tujuan untuk penyembuhan dan perbaikan pelaku dikemudian hari, karena seharusnya penjatuhan pidana memperhatikan sifat-sifat atau keadaan-keadaan pelaku sehingga pemidanaan itu menjadi tepat dan memberikan manfaat bagi pelaku. Metode penelitian yang digunakan dalam tulisan ini adalah metode penelitian hukum normatif.

The Religious Freedom Restoration Act and Prisons and Jails: An Assessment and a Proposal

1995 ◽  
Vol 7 (3-4) ◽  
pp. 309-327
Author(s):  
Jack E. Call ◽  
Charles Samarkos
Keyword(s):  
Supreme Court ◽  
Religious Beliefs ◽  
Religious Freedom ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Legislative History ◽  
Free Exercise ◽  
The Law ◽  
Religious Freedom Restoration Act ◽  
The Impact

In November of 1993, the Religious Freedom Restoration Act (RFRA) was signed into law by the President. Its purpose was to overrule a 1990 Supreme Court decision and require government to satisfy a compelling interest test when its laws or actions place a substantial burden on an individual's exercise of personal religious beliefs. This article explores the impact of RFRA on prisons and jails. Since there was a failed effort in Congress to exempt prisons and jails from the strictures of RFRA, there is no question that RFRA applies to these institutions. The article begins by explaining the law on the free exercise of religion prior to RFRA. Then the provisions of RFRA and its legislative history are explored briefly. An assessment is made of the likely effect of RFRA on prisons and jails and its constitutionality. The article concludes with a recommendation for amending RFRA designed to insure that the free exercise rights of inmates are adequately protected, while not unduly hampering the ability of corrections administrators to run their prisons and jails safely and efficiently.

scholarly journals LARANGAN PRAKTIK MONOPOLI DAN PERSAINGAN USAHA TIDAK SEHAT DALAM INDUSTRI SEPEDA MOTOR (KAJIAN PUTUSAN MAHKAMAH AGUNG NOMOR 217 K/PDT.SUS-KPPU/2019)

2021 ◽  
Vol 12 (2) ◽  
pp. 50-68
Author(s):  
Hartanto Hartanto ◽  
Gilang Yudha Wirawan
Keyword(s):  
Supreme Court ◽  
Indirect Evidence ◽  
Supreme Court Decision ◽  
Circumstantial Evidence ◽  
Court Decision ◽  
The Supreme Court ◽  
Motorcycle Industry ◽  
The Impact ◽  
Trial Evidence ◽  
Legal Consequences

Business competition is an economic activity that runs in line with technological and industrial advances. With the existence of business competition, the Business Competition Supervisory Commission in Indonesia was formed which aims to supervise and protect business competition. This research will discuss the impact and legal consequences of the KPPU decision to the Supreme Court decision which still considers and uses circumstantial evidence and testimony based on hearing from other people.  Based on the description above, the writer chooses the research title "Judicial Review of the Prohibition of Monopolistic Practices and Unfair Business Competition in the Motorcycle Industry (Review of Supreme Court Decision No. 217 K / Pdt.Sus-KPPU / 2019) with the formulation of the problem of legal impact from the Assembly's decision. The Cassation Judge proven not to consider and examine the objections / demands of the Cassation Appellant as well as whether the legal consequences of the verdict of the Cassation Panel of Judges use testimony from other people (testimonium de auditu) and indirect evidence (circumstantial evidence / indirect evidence) as a means trial evidence. So the authors want to examine this and use normative research methods that use interviews as supporting data. Keywords: Monopoly, Business Competition, Indirect Evidence

scholarly journals Unrewarded donors: The search for victims in the wake of Kapa

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Criminal Law ◽  
Critical Analysis ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Criminal Offending ◽  
Definition Of

<p>This paper provides a critical analysis of the sentence of reparation in New Zealand, as set out by s 32 of the Sentencing Act 2002. The scope of the sentence is examined with particular regard to the recent Supreme Court decision, which limited reparation so that only victims of offences can benefit from the sentence. The definition of “victim”, as determined by the Sentencing Act, is confined to direct victims of criminal offending. Thus, any indirect victim suffering harm or loss from criminal offending cannot benefit from reparation. This paper questions whether that limitation gives reparation an appropriate scope, or whether some extension should be made so that the sentence is not restricted in its application to only benefit direct victims. In so doing, this paper argues that the criminal law is the suitable domain to address such issues of compensation and therefore, an extension of the reparation sentence is required. Alternative ways of limiting reparation to address this compensation issue are outlined. Ultimately it is proposed that an additional provision should be included within the definition of “victim”, for the purpose of s 32, so that indirect victims can also benefit from a sentence of reparation.</p>

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