Criminal Law Outline NCA

Criminal Law Outline April 2011 All cases: , (1884) 14 QBD 273, pg 876 R v Dudl Du dl ey and Stephens Stephens Hungry sailors eat their friend, necessity no defense, guilty of murder Facts Shipwreck leaves D, S, Brooks & Parker stranded. Run out of food, D‟s plan to kill and eat P, B dissents but eats P anyway. They are picked up 4d later, prob wouldn‟t have survived w/out eating P. Charged w/ murder. Issues Murder Does a moral duty to preserve one‟s life make cannibalism ok? Held D‟s guilty of willful murder, sente nced to death, later commuted to 6 mos imprisonment Ratio The ct argued there was a separation from a moral duty to preserve one‟s own life and the legal duty not to murder. There can be no defense for an arb decision to kill another person. Temptation, necessity no defence for murder. RULE Necessity is no defense for murder

Sources of Criminal Law

(a) Common Law R v Sedley, (1663) KB

Note

Nobleman gets rip roaring drunk and starts yelling yelling and throwing bottles bottles of his own piss naked from the balcony. balcony. The ct found him guilty of “breaching the King‟s peace”, using their CL discretion discretion to punish “offences against Morality and Christianity”. The predecessor to the CC, statute based b ased crim law.

[1950] SCR 517, SCC [1950] F rey v Fedoru Fedoru k Peeping tom gets caught, chased w/ knife, no offence known to law Facts Frey was a peeping Tom looking at Fedoruk‟s mother. Was chased down by Fedoruk and arrested w/out a warrant by the police. There was no estab CL or crim code offence for what he did. Issues Sources of Criminal Law Can someone be convicted of an offence not in the CC? Held No, there was “no offence known known to the law” Ratio The SCC acquitted b/c there was no offence in the CC for his behaviour. Parl should decide if they want to make it one. Frey even succeeded in suing the cop for false arrest. (Note: now there is an offence for this – this – voyeurism) voyeurism) RULE If its not in the code, its not an actionable crim offence.

Note: In the 1955 revision revision of the CC, Parl went further than the SCC and in in s.9 largely abolished abolished CL offences. The possibility of CL defences was preserved in s.8(3). ii) Doctrine of Precedent (pg 6)

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Distinction b/w ratio decidendi of a case (the pt of pts it actually decides) and obiter dicta (other statements made in the course of the decision which aren‟t strictly essential to a r esolution of that particular dispute) particular dispute) ( R v Henry considered this distinction) , 2005 SCC 76, pg 6 R v Henry 

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Sellars principle: whatever was said in a majority judgment of the SCC was binding no matter how incidental to the main pt or how far removed Binnie in Henry: not all obiter are binding; don‟t all have the same weight

b) Statute (pg 10) , 2005 SCC 2, pg 11 R v Clark Window masturbator, not a public place, statutory interpretation Facts A seen masturbating in front of his open window. Charged w/ indecent exposure in public, indecent exposure exposure meant to offence, s.173(1)(a) and (b). (b). Issues Statutory Interpretation – Interpretation – what what is the defn of public place for purposes of (a)? Can actions done in a private home be considered “in public”? Held A‟s action didn‟t apply to the charged offences, acquitted. Ratio A wasn‟t aware anyone was watching him, tf his actions can‟t be said to have intended to offend – offend – (b) (b) charge is thrown out (from trial stage). The CC contains several other sections that draw a distinction b/w “public place” and “visual access” to private places. Tf the offence in (a) must have been intended for public places only. Acquitted. Acquitted. Rule Words of statute must be read in their entire context, in their grammatical and ordinary sense, harmoniously w/ the scheme of the Act, the object of the Act, and the intention of Parliament.

Presumption that legislation is enacted to comply w/ constitutional norms, incl the rights and freedoms enshrined in the Charter. Where two readings of a provision are equally plausible, the inter pretation which accords w/ Charter values should be adopted. Bilingual Interpretation: 

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Principle of biling stat interp holds that where one version is ambig and the other is clear and unequivocal, the common meaning of the two versions would be preferred Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or lim meaning

Principle of strict construction: When there is an ambiguity in interpreting words in statute, the ct has a duty to endeavor to find Parl‟s intended meaning, but when ambig persists, interpretation falls to the one that most favours the accused. Re Xerox of Can ada Ltd & Region Region al A ssessment Commission Commission er Region Region No 10 (1980) (Ont

CA), pg 17

Note

S.10-11 of the Interpretation Interpretation Acts, which instruct judges to interpret statutes broadly and liberally have been largely disreg in favour of the CL principle of strict construction.

, (1981) (Ont CA), pg 18 R v Gouli Gouli s

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Distinction b/w ratio decidendi of a case (the pt of pts it actually decides) and obiter dicta (other statements made in the course of the decision which aren‟t strictly essential to a r esolution of that particular dispute) particular dispute) ( R v Henry considered this distinction) , 2005 SCC 76, pg 6 R v Henry 

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Sellars principle: whatever was said in a majority judgment of the SCC was binding no matter how incidental to the main pt or how far removed Binnie in Henry: not all obiter are binding; don‟t all have the same weight

b) Statute (pg 10) , 2005 SCC 2, pg 11 R v Clark Window masturbator, not a public place, statutory interpretation Facts A seen masturbating in front of his open window. Charged w/ indecent exposure in public, indecent exposure exposure meant to offence, s.173(1)(a) and (b). (b). Issues Statutory Interpretation – Interpretation – what what is the defn of public place for purposes of (a)? Can actions done in a private home be considered “in public”? Held A‟s action didn‟t apply to the charged offences, acquitted. Ratio A wasn‟t aware anyone was watching him, tf his actions can‟t be said to have intended to offend – offend – (b) (b) charge is thrown out (from trial stage). The CC contains several other sections that draw a distinction b/w “public place” and “visual access” to private places. Tf the offence in (a) must have been intended for public places only. Acquitted. Acquitted. Rule Words of statute must be read in their entire context, in their grammatical and ordinary sense, harmoniously w/ the scheme of the Act, the object of the Act, and the intention of Parliament.

Presumption that legislation is enacted to comply w/ constitutional norms, incl the rights and freedoms enshrined in the Charter. Where two readings of a provision are equally plausible, the inter pretation which accords w/ Charter values should be adopted. Bilingual Interpretation: 

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Principle of biling stat interp holds that where one version is ambig and the other is clear and unequivocal, the common meaning of the two versions would be preferred Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or lim meaning

Principle of strict construction: When there is an ambiguity in interpreting words in statute, the ct has a duty to endeavor to find Parl‟s intended meaning, but when ambig persists, interpretation falls to the one that most favours the accused. Re Xerox of Can ada Ltd & Region Region al A ssessment Commission Commission er Region Region No 10 (1980) (Ont

CA), pg 17

Note

S.10-11 of the Interpretation Interpretation Acts, which instruct judges to interpret statutes broadly and liberally have been largely disreg in favour of the CL principle of strict construction.

, (1981) (Ont CA), pg 18 R v Gouli Gouli s

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Clarifying strict construction: construction: in a case of ambiguity, ambiguity, cts still have to strive strive to find the intended meaning ascribed to a word by parl. If still uncertain, then go w/ the meaning that favours the A. To convict, A‟s conduct must be w/in the proscription.

R v Par e [1987] 2 SCR 618, pg 19 *Leading case on strict interpretation*

Sexual assault then strangled victim, single transaction approach Facts 17 yr old lures 7 yr old under bridge, sexually assaults him, then strangles him when threatened to tell mother. Charged w/ 1 st deg murder b/c CC makes it 1 st deg to kill “while committing” certain other offences, incl indecent assault. Issues Statutory interpretation Can it be interpreted that “while committing” c ommitting” includes A‟s actions? st Held Guilty of 1 deg murder Ratio The “ord meaning” allows 2 interpretations: simultaneous and a broader approach that incls A‟s actions. Simultaneous doesn‟t fit w/ the intentions of parl, it forces the ct to draw arb and irrat boundaries around the A‟s actions. The “single transaction” approach approac h was used. If the actions are pt of a fluid seq of events immed rel to the indecent assault, it satisfies “while committing” Rule “While committing” can incl actions pt of a “fluid seq of events” and doesn’t req simultaneousness Ct can infer parls intent fairly broadly Note Pare is authoritative determination determination that we do have a doctrine doctrine of strict interp (but (but judges didn‟t apply it here b/c of the diffic in finding finding the start and end of the the incident, runs contrary to common sense)

(2001) (Ont CA), pg 22 (2001) R v Mac Fake credit cards, meaning of “adapted”, strict construction needs real ambiguity Facts A was making fake credit cards. Charged w/ s.369(b) of CC. Meaning of “adapted” at issue. “Suitable for” vs “altered so as to be suitable for” – the the machines were suitable but not adapted. JA found error in trial judges interp and used strict construction to go w/ “altered” Issues Strict Construction/Statutory Construction/Statutory interpretation How much ambiguity must there be to revert to the most liberal interpretation favouring the A? Held SCC reversed CA ruling, convicted. Ratio Bastarache J ruled that strict construction only comes in when there is real ambig in the interpretation. In the French version, there was no ambiguity. Rule Check the French version There must be real ambig for strict construction to prevail.

2000 2000 SCC 31, pg 24 Ref Ref erence r e F ir earm s Act (Can ada) Division of powers, criminal is Federal Facts Parl wants to introduce Firearms Act. AB opposes, claiming that this falls under prov juris (reg fns). Feds argue gun ctrl ctrl falls under s.91 and POGG Issues Does the Act fall under Fed juris and power over crim law and POGG or prov juris of property and civil rights. Held Feds have juris Ratio Substance directed towards public safety and moral evil and tf under juris of crim law – law – there there are reg aspects (provincial), but these are secondary. 3

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Division of powers analysis: 1) Find P&S of the law (i) purpose of the enacting body, & ii) probs the law is intended to address (mischief approach) – public safety) 2) Classify essential character by reference to the essential heads of power to det juris. (Legislation may be classif as crim if meets three reqmts of: i) it is a valid crim law purpose, ii) backed by a prohib, and iii) penalty)

: entrenched Legal Rights in Constitution, procedural law, protection against Charter of Ri ghts and F reedoms unreasonable search and seizure, arbitrary detention, right to be informed of reasons for detention, retain counsel without delay, not to be compelled to be a witness, against self incrimination, presumption of innocence. (pg 34) (1984) SCC, pg 35 H unter v Southam Inc

Ct announced a purposive interpretation of any provision of the Charter. Charter is a purposive doc. Its purpose is to guarantee and protect the enjoymt of the rights and freedoms it enshrines. It is intended to constrain govtal action inconsis w/ those ri ghts and freedoms, it isn‟t in itself an authorization for govtal action. Judiciary is the guardian of the constitution. 2 types of Charter challenges: 1) challenge to conduct; remedy: exclusion of tainted evidence 2) challenge to law; remedy: law of no force and effect (unconst), can be saved by s.1 Crim laws can be challenged under s.7 of Charter for vagueness, overbreadth and arb Overbreadth: 

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If using means that are broader than is ness to accomplish that objective, POFJ will be viol (arbitrary or disproportionate) Result of a lack of suffic precision in the means used to accomplish an objective: means that are too sweeping in reln to the objective TEST: If the state uses means that are broader than is ness to accomplish that objective, the POFJ will be viol b/c the indivs rights will have been lim for no reason (Balancing state interest against that of indiv) leading case: H eywood

[1994] SCC, pg 37 *leading case: overbreadth* R v H eywood Pedophile taking photos in a park, loitering too broad, unconstitutional Facts Charged w/ 2 offences of committing vagrancy by being a person who had been convicted of a sexual offence and “found loitering at or near a school ground, playground, public park or bathing area” (s.179(1)(b) of CC) Issues Charter, overbreadth Does this offence viol s.7 and 11(d) of the Charter? (is the restriction on lib consis w/ the POFJ or is it too broad?) Held s.179(1)(b) found to be unconst b/c too broad Ratio Majority (Cory J): Parl must enact laws that achieve intended objectives w/out infringing on Charter rights and can‟t be too vague or broad in the means of achieving those objectives. Law was too broad geographically, applied to too many places and ppl for an indefinite time period w/ no review. It restricts the rights more than ness to accomplish the goal. Public parks and bathing areas cover places that would pose no risk. Law is too broad. DISSENT (Gonthier): Wants to read in malevolent or ulterior purposes rel to the offence to save the legislation. Rule TEST: Are the means used in the legislation broader than is ness to achieve the 4

stated objectives?

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Raised under s.7 (life, lib and sec of the person; except in accordance w/ POFJ) Vague laws put too much discretion in hands of lawmakers and prevent citizens from knowing that they are entering an area of risk A law is unconst vague if it doesn‟t provide an adeq basis for legal debate A law must set an intelligible std both for citizens it governs and those who enforce it This provides clear direction for citizens and removes discretionary interp by officials, prevents discrim, ad hoc ruling, subjective ruling ( NS Pharma Society) Ppl should be gov by rule of law, not rule of persons Judicial decisions add precision to a statute, judges clarify if any uncert exists CC must be viewed in context, in an ord sense, and w/ a view to the legislative purpose and intention of parl Result of a lack of suffic precision in the means used to accomplish an objective = not clearly defined

[2004] (SCC), pg 47 Cdn Fdn f or Chi ldren, Youth & the Law v Canada (AG) Spanking Law, not vague, reading in limitations Facts Fdn challenges s.43 of CC: “every school teacher, parent, etc, is justified in using force by way of correction toward a child who is under his care, if the force doesn‟t exceed what is reasonable under the circumstances” Issues Vagueness/overbreadth Is it too vague to allow spanking “by way of correction” and lim to “what is reasonable under the circumstances”? Too overbroad? (Do these phrases provide suffic precision to delin the zone of risk and avoid discretionary law enforcement?) Held Legislation is upheld, ct reads in several limitations on the law. (1) 6-3 s.43 constitutional; 2) 6-2, not too vague; 3) 6, not overly broad; 4) 6-2 no viol of s.15) Ratio s.43 sets real boundaries and delins a risk zone from crim sanction. It doesn‟t viol the POFJ that laws must not be vague or arb. Majority: “Reasonable” is common term in the law, interp practically by judges all the time. The ct can use it to “rd in” lims such as not spanking children <2, kids w/ disab, or teenages (they wouldn‟t learn from it, so can‟t be by way of correction), and no using objects. Teachers should be retricted to restraining force, not striking. Somehow this is all implied in the text of the offence, so its not vague. DISSENT (Arbour J): Creates too many acquittals where there should be convictions. Too must discretion. “Reasonable” ult deps on sense of what is approp, cultural opins, too much variability. TEST for vagueness: The law must: Rule 1) Be precise enough to give rise to legal debate and analysis.  Cts must have flex and an interpretive role; lang need not be precise, but must have std of intelligibility 2) Give fair notice to citizens so they know what conduct will fall under legal restrictions 3) Put a limitation on law enforcement discretion so as not to allow for a standard less sweep – where a conviction automatically flows from a charge 4) Delin an area of risk *Any penal law should be declared unconst if its too vague, POFJ that laws may be not be too vague. *Ct can “read in” limitations to clear up vagueness issues, instead of striking law down. Note Must not be too vague > citizens must know when they are entering a sphere of crim 5

sanction > law enforcers must know when a crime has been committed Arbitrariness (Charter Challenge):  

Must be arb and disproportionate, irrational (v hard to meet this) Probib against pot wasn‟t arb

R v Malm o-Levin e

Marijuana laws, the harm principle not pt of the Charter Facts Pot activist charged w/ possn for purpose of trafficking. Charter challenge to “marijuana” laws, alleging its against s.7 b/c it is arbitrarily criminalized (opposed to tobacco which is legal). Issues Charter, arbitrariness Are offences that viol the harm principle arb and unconst? Held There doesn‟t have to be harm present for an act to be criminalized, and thus a charge of possn doesn‟t viol s.7. Harm principle doesn‟t alone constitute wha t should be made criminal. Ratio There is no legal right to smoke pot. You can‟t strike down a law simply on the basis that there is no reasonable risk of harm. MJ prohib isn‟t arb or irrat, effects to the A aren‟t disproportionate. MJ laws don‟t offend s.7 under the provisions that its too broad (only leave out the issue of med exemption). For something to constitute a POFJ there must be large consensus, it must be a manageable std and reflect societies consensus. Harm principle: states that the state should only interfere when harm to others is evident. Malmo tries to say crimes need harm, and tf this charge was unconstitutional Here the law was not found to be arb, and there is no const right to smoke pot for rec use. DISSENT (Arbour J): need harm to criminalize if imprisonment is a sanction – must be able to show potl conduct of harm to others – majority addresses this w/ suicide – this is crim but there is no harm to others per se, but the goal is to protect society as a whole from harming itself. Rule TEST: Law bears no reln to or is inconsis w/ the objective the lies behind the legislation. Something doesn’t need to harm another in order to be criminal.

Procedural Overview: Procedural classification of offences: 3 types of offences Offences triable only on indictment:     

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Most serious, exclusive juris of Superior Ct of Crim J, no other cts can try these Accused can choose mode of trial Magistrate can decide that matter should be put before judge and jury (S.555) AG may override A‟s decision and compel jury trial if offence punishable by 5+ yrs (s.568) Under s.536(2): A will be asked whether to be tried by a provincial ct judge w/out a jury, a judge w/out a jury or ct w/ judge and jury If A doesn‟t choose, will default to judge and jury (s.565(1)(c))

Summary Conviction Offences:

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Trial before provincial judge w/out a jury and w/out prelim inq Max penalty $2000 or 6 mos imprisonment or both

Crown Election Offences:  

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Known as hybrid offences In some cases the legislation makes the offence punishable on indictment or on summary conviction at the option of the crown (ie sexual assault, touching vs rape, age of victim will det type of offence (?????)) Prosecutor can “judge shop” and go where ct might be more favourable to the ir case (although noone admits to this) 18 mos max for summary conviction only when prosecutor elects to proceed by indictment does the A have the choice under s.464 prosecutor should indic the nature of the proceeding prior to trial

Jury Trials: 

judges role is to instruct the jury, not advise on the case

Evidence: 

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cardinal rule of evidence: if its relev to a legal issue (material), and not subject to a discretion to exclude, it is admissible in ct crown has obligations of proving allegations BARD via evidence call your own witnesses crown usually calls police officers first as witnesses – can‟t suggest answer (via leading questions), must ask open questions at end of this, defence counsel can cross examine – in this you can lead witnesses direct evidence: witness used own senses in what they experienced: must be directly relev to the case circumstantial evidence: opposite of direct

Presumption of Innocence: [1935] HL, pg 65 Woolmi ngton v DPP Shoots wife, reverse burden inapprop, presumption of innocence Facts Guy shoots wife by accident, only meant to scare her, no eyewitness, only inference/guessing. Issues Presumption of Innocence Is it proper to shift the burden of proof to the A? Held Conviction quashed Ratio The original conviction was flawed. Shifting the burden was improper. The principle they tried to follow should only shift the burden when the only facts of the case show a conscious act causing death and nothing else. The presumption of innocence is a central precept to crim law, should be v hard to circumvent. Rule The presumption of innocence is v impt, should he hard to get around if at all. Note This is old british case, so not the Charter, but the presumption of innocence is entrenched in the Charter, s.11(d) The crown must normally prove their case to std of BARD If there is doubt, then it goes in favour of the accused Crown has burden of RD, here didn‟t satisfy doubt, tf accused acquitted Case (CL) lead to presumption of innocence and RD (crown has burden of RD)

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1991, SCC, pg 72, 81 (in notes) R v W(D) Jury charge error, only acquit if A is believable, Reasonable doubt Facts Sexual assault charge. Judge instructed the jury that it turned on whether they believed the A or the victim. Appealed based on the jury being misled to believe they had to believe the A to acquit him. Issues Reasonable doubt Was it enough of an error to charge the jury this way to overturn the conviction? Held Jury charge erred, but jury not misled enough to overturn. Ratio Majority (Cory J): judges should instruct juries of a third option: not believing the A but remaining unconvinced BA “RD” of his guilt. Offers a boilerplate jury charge. Still found the jury charge didn‟t suffic mislead the jury to overturn the conviction. DISSENT (Sopinka, McLachlin): The burden of proof is so fundamental, tampering like this should trigger a new trial. Rule The burden of proof is on the Crown to prove BARD that the A is guilty. TEST for Reasonable Doubt: 1) If you believe evidence of the A, you must acquit (problem: if you believe evidence, you can still acquit – R v Lati mer ) 2) If you don’t believe testimony of A, but are left in RD, you must acquit (problem: even if no evid is believed, there may be an RD of guilt and acquittal may not happen) 3) Even if you aren’t in doubt by the evid of the A, you must ask yourself whether, on the basis of evidence you do accept, you are convinced BARD by the evidence, of the guilt of the A (problem: fails to consider both inculpatory and exculpatory evidence) Note Criticisms of W(D): seems overly gen to the A  often results in new trials when judge is using W(D) formula to instruct jury  b/c judge is criticized for how jury is instructed juries must be instructed that the burden never shifts from the crown to prove  the D‟s guilt BARD

2008 SCC 30 R v S (J.H .)

Facts

Issues Held Ratio

15 yr old told police stepfather sexually abused her since age of 4. She told mother twice, didn‟t believe her. Daughter and Dad only witnesses, his word against hers. Dad said she made it up after he threatened to send her to a Catholic school for her uncontrollable behaviour. Guilty Trial judge suffic explained that RD should be resolved in favour of A, and that even if they didn‟t accept all testimony, they could accept some of it. Juries must be instructed that the burden never shifts from the crown to prove the D‟s guilt BARD. Judges instructions left jury w/ impression that they had to choose b/w the two versions of events. Lack of credibility of the A doesn‟t equate to proof of guilt BARD. Oland JA: “The charge failed to direct that if the jury didn‟t believe the testimony of the A but were left in a reasonable doubt by that evid, they must acquit”

Rule

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(2007) (Ont CA), pg 77 R v M ull ins-Johnson Wrongful conviction case Facts Medical ppl jumped to concl, started to conduct autopsy, then wondered if it was a child abuse case, so called child abuse expert. Autopsy began at 12:55, inspection of body didn‟t begin until 4:50. Turns out the signs up child abuse are also normal signs of death. Issues Held Appeal allowed – murder conviction quashed, A acquitted. Ratio Only 2 verdicts in crim law – guilty and not guilty. No “factually innocent” Policy reasons for this: concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict. To r ecog a 3 rd verdict in the crim trial would create 2 classes of ppl: those found to be factually innocent and those who benefited from the presumption of innocence and the high std of proof BARD. Rule Only 2 verdicts in crim law – guilty and not guilty. No factually innocent.

[1997] SCC, pg 78 R v Lifchus Reasonable doubt in the legal sense is different from ordinary sense Facts Fraud charge. A was convicted and appealed arguing that the judge instructed the jury to interpret “reasonable doubt” in the everyday, ord sense of the words” offering only “you understand” as instructions. Issues Reasonable doubt Does the jury need special instructions beyond what was given? Held Yes – ordered a new trial Ratio Cory J: The crim law meaning of “RD” may not be the “ord sense” of the word to everyone. Juries should be applying the law based on the judge‟s instructions, not making moral judgments. Cory offers a boilerplate charge to use. Rule Juries must be given specific instructions on the crim law meaning of “RD”. Don’t give the words “BARD” an everyday meaning.

R v Starr [2000] (SCC), pg 81

Facts Issues Held Ratio

Rule

A convicted on 2 cts 1 st deg murder. Majority felt RD instruction fell prey to the same issues in Lifchus & likely misled jury re content of crim std of proof Was jury properly instructed on RD? Jury not properly instructed – appeal allowed Jury not told how RD is defd (std of proof inc in crim cases than in everyday life, etc). Less than abs certainty but more than probable guilt is reqd for jury to convict (and its closer to abs cert than the BoP. RD hard to show via eg. Judge must define for jury that RD falls b/w absolute certainty and BoP, but closer to abs cert. Iacobucci reiterates that juries need special instructions. Reasonable doubt is somewhere less than abs cert, more than probable guilt. Closer to certainty.

Reverse Onus, Presumption of Innocence, and the Charter R v Oak es 1986 SCC, pg 83

I got my hash pipe, which doesn’t imply trafficking, no rev onus Facts Charged under s.8 of NCA, created a rev onus provision (if possn was found, intent 9

Issues Held Ratio

Rule

to traffic was presumed). Oakes was charged w/ posssn, challenged the const of s.8. Charter, presumption of innocence Does s.8 viol s.11(d)? (Is a rev onus provision contrary to s.11(d) of Charter?) The law was unconst, struck down. Couldn‟t be saved by s.1. Just b/c two offences can be “rationally connected” doesn‟t make it ok to viol the presumption of innocence in the Charter. It can‟t be proven BARD that he intended to traffic based on this simple possn. Rev onuses gen viol the presumption of innocence. TEST: Oakes Test 1) There must be a pressing and substantial objective The objective justifies limiting the relev Charter right The objective can’t be fully achieved w/out any govtal action 2) Is the measure rationally connected to the objective? The measure isn’t arb The measure is likely to further the objective 3) Does the measure lim the rights as little as possible? Is the measure likely to further the objective beyond what may be achieved by using less restrictive measures? 4) Is there a proportionality b/w the infringement and the objective? Sharpe addn: Does the addnl progress towards the objective (comp’d to the progress achieved by less restrictive means) justify the harsher limitation of the rights (comp’d to the limitation imposed by the less restrictive measures) This test was heavily founded in factual analysis so strict adherence isn‟t always practiced. A deg of overlap is to be expected as there are some factors such as vagueness, which are to be consid in multiple sections. If the legisln fails any of the branches, its unconst. Otherwise the law passes & is valid.  

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R v D owney [1992] SCC, pg 88

Facts Issues Held Ratio Rule

Note

A charged w/ living off the avails of a prostitute per s.195 of CC (now 195(2)) Burden of rebutting presumption of guilt put on A in the absence of evid to the contrary. Anything that puts burden of proof on A viols s.11(d). Any rev onus creates an infraction of 11(d). A didn‟t have to prove anything but he had to produce evid to the contrary of the accusation. s.11 is infringed when 1) A is liable for conviction despite RD; 2) A is reqd to prove a BoP; 3) Rational connection is insuffic; 4) Legislation subbing one proof for another is only ok if one thing leads inexorably to another BARD. (saved by s.1, though) Coupled w/ presumption of innocence, we don‟t req A to speak (right to remain silent) (*this isn‟t in our Charter, but if they don‟t have a right to remain silent, police could torture ppl they arrest, to force them to speak)

Coughlan: “Doubt Mountain” analogy. Crown must push proof beyond the Reasonable Doubt line. (see also pg 10 of crim stuart 1 2008) Role of the Crim Justice Sys in Cdn Society:

a) Victims Rights:

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Crim trial is abt det guilt and just punishment of A If victims impacted sentencing, wouldn‟t we be opening up idea of getting revenge or delivering compassion to victims? Also, sentencing would vary for same crime dep on victims and what they ask for (eg go lightly on him, etc) In past, victim put “on trial”, esp w/ sexual assault (if had promiscuous history then consented to present assault) Victim impact statements now mandatory when requested by judge – only come into play after A is found guilty (most are read by judge, but its discretionary) In R v O’Connor , victims rights recog for the first time (SCC, 1996) Ct adopted balancing procedure respecting discovery of medical records of possn of 3 rd parties Victims no longer have to expose medical records (they are victims) L‟Heuruex-Dube saw need to balance accuseds‟ right to fair trial w/ victims right to privacy (Lamer saw need to protect victims‟ rights under s.7 and 8) and eq w/out judgment. In s.15, eq rights for complainants in sexual assault cases were later asserted by SCC in R v Shearing (2002) S.15 = only const protection for victim‟s privacy and eq interests – apply to sexual assault cases only There are not many rights for victims

R v Labaye; R v Kouri (2005) SCC, pg 120

Swinger’s case – legal test for indecency Facts Owners of swingers clubs were charged w/ keeping a common bawdy house for the practice of acts of indecency under s.210 of CC Labaye: meet for grp sex on 3 rd floor, marked PRIVE, locked w/ key pad, members only Kouri: curtain around dance floor Issues Is operating a sex club criminally indecent? Held Appeal by A allowed, conviction set aside. Indecency not found as per test below in both cases. Ratio **note: add in malmo: malmo was used in Labaye to read down the indecency reqmts** Switched from a community std to a harm test. Community Std of Tolerance Test: Whether the community would tolerate others acting this way  Majority abandons community std of tol test for indecency in favour of objectively det harms approach Labaye: 1(a) of test not satisfied, as patrons fully informed before conduct happened, what was involved. Owners checked to ensure they were aligned w/ philosophy and knew what they were getting into. As well, door to apt locked, etc, tf no societal harm. 1(b) of test not satisfied, noone was paid or forced to have sex or treated as an object or degraded. Participation was voluntary and consentual. 1(c) of test not satisfied, no risk of harm to patrons (STIs not rel to indecency) DISSENT (Lebel): social norms are against indecency, so the test fails. Can‟t set community stds of what others would tol (not you or I). Main concern: nothing wrong w/ community stds of tol test and we shouldn‟t abandon it. Whether there is consensus or not, communities wouldn‟t tol it, so we should use community stds as a measure of tol. Rule Indecency TEST: (purpose is to create a neutral, objective test rather than leaving it up to local communities to decide, which it too subjective and inconsis) Indecent crim conduct will be satisfied where Crown proves BARD, both 1) By its nature, conduct causes harm or presents signif risk of harm to others in a way that undermines or threatens to undermine a value reflected in (and tf endorsed by) the Constitution or similar fund laws, eg 11

A) confronting members of public w/ conduct that signif interferes w/ their autonomy and lib, or B) Predisposing others to anti-social behaviour  C) Phys or psych harming persons inv in the conduct  2) That the harm or risk of harm is of a deg that is incompatible w/ the proper fning of society *The hope is that the test will help ppl det on their own (based on case rulings or applications of the test) what is crim and what isn’t re sexual conduct *both 1 and 2 must be present for act to be consid indecent under CC Legitimizes sex clubs  Sends msg almost everything is fine behind closed doors  Legitimizes “swingers” industry in Montreal  This isn‟t a charter case, not arguing on principles of constitution; rather this  argues on indecency test, old std was whether community would tol other ppl doing this action (was a lenient test) Problems w/ above test: too subjective – if principle of harm not workable std, then this std of tol test is inconsis w/ ruling that can‟t have abs stds 

Note

Truths of Criminology – pg 129

Traditional Goals of Sentencing: ??? Roles and Responsibilities of Judges and Lawyers – pg 137

a) The Adversary System – see pg 14-16, Stuart 1_2008

R v RDS [1997] SCC, pg 157

Facts

Issues Held Ratio

Black 15 yr old male charged w/ offences surrounding interfering w/ arrest of another youth – thought police were roughing up buddies. Cop and A were only witnesses and accnts of events differed. Trial judge was black female. At end she said “cops overreact w/ non-white grps” – this didn‟t accuse this cop, but she said she was suspicious. A acquitted Police have misled cts and overreacted in the past, and although this was not ness the case here, she believed A and tf acquitted. Crown appealed citing reasonable apprehension of bias (judge was black) – new trial ordered and A acquitted in SCC (rare). Judges should avoid generalizing. There was no evidence to link officers conduct w/ racial tension b/w black and white – there is gen evid that this may have been the case, but nothing specific. Although inapprop comments did not give rise to reasonable app of bias – judge mentioned racism as this is present in her community and she was merely contextualizing the events. DISSENT (Major): her comment abt sometimes officers lie and overreact w/ non whites was saying that she believed this one was too, tf biased based on stereotypes. For judge to base dsn on gen view and not evid (that there was racism) was an error of law and new trial should be ordered. Judges can‟t be neutral but should strive for impartiality and having an open mind.

Rule

12

Ethical Obligations of Crown and Defence Counsel – pg 17-18, Stuart 1_2008 The Act Requirement (Actus Reus)

Actus Reus is the principle that there must be a criminal “act” by the accused for there to be a crime.

An act: 1) of commission, or 2) in certain cases only, of omission (where there is a duty to act) 3) by a human being, 4) that is voluntary, and, 5) if consequences are pt of the definition, have caused those conseq (eg causing bodily harm or death) **if any of these are missing, the A must be acquitted** Where do you go when you have a crime you‟ve never heard of? Look at the section Look at def of crime to see what you have to do to commit the crime ( act, mentally) In most crimes, the conseq of the offence, what happens to the victim, is irrel Sometimes the offence penalizes certain conseq (eg murder v assault causing bodily harm)    

R v Thorn e (2004) NB CA, pg 190

Reading the riot act Facts A convicted of an offence under s.68(b) of the CC – he “did not peaceably disperse and depart from a place where the riot proclamation referred to in s.67 was made w/in 30 mins after it was made” (Riot Act). At trial, the judge ordered the witnesses to ref rain from mentioning the words “for life” and that those same words would be del from the text of the proclamation to be filed as an exhibit for the jury‟s consideration. The proclamation read must be in the words ref to in s.67, or words which have the same meaning and convey the same msg. Issues A had to be read the Riot Act for charge to stick, as per wording of statute. Held Acquitted – no proof he was read those words. Ratio Crown must prove BARD that he failed to peaceably disperse and depart w/in the provided time frame from a place where the proclamation was made. There can be no offence under s.68(b) for failing to disperse unless the proclamation was made. If proclamation wasn‟t made w/ correct words/meaning (ie for life) it can‟t stick. No evid that proclam was made. Rule

Teale v Noble (2005) QC SC, pg 195

No evid to satisfy reqmt that she would reoffend if her movement was not restricted – deals w/ possib of commiting future acts, tf effort to ctrl movements thwarted.

COMMISSION OF AN UNLAWFUL ACT (actus reus)

a) Causing Disturbance in a Public Place Causing disturbance, indecent exhibition, loitering, etc. 175. (1) Every one who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, 13

(ii) by being drunk, or (iii) by impeding or molesting other persons, (b) openly exposes or exhibits an indecent exhibition in a public place, (c) loiters in a public place and in any way obstructs persons who are in that place, or (d ) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwellinghouse comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied, is guilty of an offence punishable on summary conviction. Evidence of peace officer (2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)( a) or (d ) or an obstruction described in paragraph (1)( c) was caused or occurred.

R v L ohnes [1992] SCC

Yelling obsenities, Rules for Actus Reus, causing public disturbance Facts A yells obscenities at neighbour, N complains to cops, A charged s.175(1)(a) Issues Actus reus What is the actus reus for causing a public disturbance? Held Offence reqs externally manifested disturbance in or near public place Ratio Look at three things to determine actus reus: 1) Perspective of authorities 2) Statutory Construction 3) Underlying policy issues Shouting obsenities hasn‟t led to convictions in most cases. In R v. D.(C.) A ramming his car repeatedly into another car and shouting was not a disturbance. Enumerated conduct must cause an overtly manifested disturbance constituting interference with ordinary and customary use by the public of the public place. Must “disturb” r egular public use of the place, not just an emotional disturbance Rule For actus reus look at: authorities, statute, policy issues Actus reus for public disturbance reqs an overtly manifested public disturbance interfering w/ regular public use of the public place. TEST: Whether the affect of the conduct was such as to interfere w/ the ordinary and customary use of the premises at the time & place in ?. TEST of Disturbance: 1) Did the accused commit the act? 2) Was there a disturbance to the public?

b) Deeming provisions (pg 203, Oct 12 notes): 

  

The task of the crown in proving that a partic element is met is sometimes made easier by presence of “deeming” provision in CC Relates more to evidence matters Eg crime called break and enter – but don‟t actually have to “break” to commit Are deeming intent to have been proved – evidentiary assist 14

c) Vicarious Liability (pg 204, Oct 12 notes): 

 

One person automatically responsible for the wrongdoing of another, solely on the basis of a relnshp b/w the parties, irrespective of whether that person was at fault or even acted In tort, employer is responsible for employees conduct (master/servant) Vicar liab rarely used in crim law since purpose is punishment not compensation

R v Bur t (1985) Sask QB, pg 204

Vicarious liability Facts Owner of truck liab for actions of other ppl who drive his truck Issues Held Vicar liab under Sask Vehicles Act struck down as it‟s a viol of actus reus, tf unconst. In addn, there was no thought (mens rea), so unconsti in this regard as well. Ratio Violates POFJ – person not punished absent a wrongful act – tf viols s.7. Not saved by s.1 b/c purpose is to coerce owner to say who was driving, but effect is to hold owner responsible – out of proportion. Rule

Possession Offences: (possession class exercise, Oct 14 notes) S4: Possession (3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

M arshall v R [1969] (Alta CA), pg 209

Road trip w/ pot in car Facts Kid in car charged w/ unlawful possn of a narcotic (mj) for the purposes of trafficking, contrary to provisions in s.4 ss.2 of NCA. Issues Actus reus What constitutes possn? Ctrl, knowledge, or consent? (Did M consent to the presence of the pot in the car?) Held Acquitted b/c although he had knowledge, had no ctrl or consent. Ratio A main element of possn under s.3(4)(b) is consent. Marshall had knowledge of the presence of the mj but no ctrl, right to ctrl, nor did he consent to the presence. He passed pipe, tf touched it, ie ctrl. Was seen as reflex and not ctrl. Not informing the police is ok b/c he had no legal oblig to do so. Rule Possession reqs consent and ctrl of the prohib thing. Knowledge isn’t enough. Passing along a pipe/joint is borderline, but ok. Must have ACTIVE consent.

R v Terr ence [1983] SCC, pg 212 Possn reqs knowledge, consent & ctrl (joint possn)

Stolen car joyride, A didn’t know it was stolen; knowledge and consent. Facts A went for a ride w/ a friend in a stolen car. 15

Issues Held Ratio

Rule

Actus Reus If A says he didn‟t know the car was stolen, can there be “possession”? Not guilty. Didn‟t have knowledge of consent to riding in a “stolen” car. Must have knowledge of the nature of the substance. A must have some measure of ctrl. A must have consented (this is presumed by ctrl), rev onus on A to prove that substance was there w/out his consent. (note: Marshall , consented to ride but not to possn of pot, had no ctrl over it being there and had no practical alternative). Knowledge and consent are the key elements of estab joint possn. Neither of these was proven. Joint possn reqs proof of knowledge and consent. A must have some measure of ctrl.

R v Pham [2005] (Ont CA), pg 216 CONSTRUCTIVE POSSESSION

Cocaine in shared apt, A not around, but mixed in w/ her toiletries. Facts A and Lieng Van Nguyen jointly charged w/ possn of cocaine for purposes of trafficking contrary to s.5(2) of the Ctrled Drugs and Substances Act Issues Actus reus If large amts of cocaine found in an apt you jointly reside in, is that enough to prove ctrl, consent for joint possn? (do you need direct evidence for possn?) Held A convicted based on circumstantial evidence. Ratio Can use circumstantial evid to infer possn (infer knowledge, consent, ctrl). It isn‟t essential that there be evidence of the A‟s knowledge of the presence of narcotics, it may be estab by circumstantial evidence (R v Sparling). Majority (Ritchie): Even w/ a RD that the drugs found could have been moved into apt after A left, there is enough other evid to suggest that she consented and ctrled a drug trafficking scheme from the apt, dating to before Nguyen lived there. The drugs were in a common area of the apt, mixed in w/ her toiletries in the bathroom. Ample evid to draw inference of requisite knowledge & ctrl to constitute constructive possn either personally or jointly. Agreed that if possn was e stab, if was possn for the purpose of trafficking. DISSENT (McMurtry): There is enough RD that A even knew abt the specific drugs in question to rule that she didn‟t legally possess them. Rule Ctrl and consent can be inferred from other evidence, doesn’t necessarily even have to relate to the specific drugs found.

R v Chalk (2007) (Ont CA), pg 223

Facts

Issues Held Ratio

Rule

Accused of possessing child porn, contrary to s.163.1(4) of CC. Videos found on home PC. A admitted to looking at alone and w/ gf, but didn‟t intend to DL. Told gf to delete after arrest b/c he knew comp would be investigated. What constitutes possn? Conviction upheld. This case isn‟t innocent possn. A knew abt porn on comp for mos and could have deleted it at any time (had ctrl over comp and used it over the mos). Deleted files in the end for fear of getting caught. Knowledge (of crim character of action) + ctrl over action = estabs possn.

e) Consent making Act Lawful (pg 226, Oct 19 notes) R v Jobidan [1991] SCC, pg 226 16

Bar fight – can’t consent to assault causing serious hurt or non-trivial bodily harm Facts Guy dies in bar fight. Rendered unconc and later blows kill him. A charged w/ manslaughter. Issues Actus reus, consent Can one consent to assault to oneself? Held Guilty, convicted of manslaughter. Ratio No one can consent to an assault that intentionally causes “serious hurt or non triv bodily harm, in the course of a fist fight or brawl”. Noone can consent to being beaten badly or killed. (A minor can‟t consent to an adults intentional application of force in a fight. Doesn‟t apply to sports so long as intentional applications of force consented to are w/in the customary norms and rules of the game). Consent it pt of the actus reus for assault in the sence that the act reqs a lack of consent. Tf consent can be used to negate the actus reus and defend against a conviction. However there are policy based lims. Rule Can’t consent to assault causing serious hurt or non-trivial bodily harm. When someone actually consents to something, can be vitiated for policy reasons.

Bol duc and Bi r d v R [1967] SCC, pg 238

Dr convinces patient that friend is a med student, is actually a pervert Facts Patient consents to Bird watching a procedure as Dr told her he was a student. Charge: Indecent assault contrary to the provisions of s.141 s.244: a person commits an assault when, w/out the consent of another person, or w/ consent, where it is obtained by fraud a) he applies force intentionally to the person of the other, directly or indir (force may be mere touching) s.141(2): An A who is charged w/ an offence under ss1 may be convicted if the evidence estabs that A did anything to the female person w/ her consent that, but for her consent, would have been an indecent assault, if her consent was obtained by false and fraudulent reps as to the nature & quality of the act. Issues Actus reus, consent Does getting fraudul consent for another party to watch make it indec asslt? Held No indecent assault. Ratio A‟s actions may have been unethical, but it wasn‟t unlawful. Consent was reqd only so far is it rel to the application of force. Bird just watched. (Note: CC was revised in 1983 to incl “exercise of authority”, likely would have made this a conviction) Rule The fraud must be connected to the nature and quality of the act to elim consent. Consent for assault only rels to the application of force (or now, the exercise of authority).

R v Cuer r i er [ 1998] SCC, pg 243

Didn’t disclose HIV, unprotected sex, signif risk of serious bodily harm Facts A had HIV and had unprotected sex w/ 2 partners w/out disclosing. Charged w/ assault. Issues Actus reus Was the consent negated/vitiated b/c it was obtained fraudulently? Held Convicted Ratio In order for fraud to vitiate consent, it must go to the nature and quality of the act (Bolduc). For fraud to vitiate consent in case of assault, must estab beyond a RD both that: a) a complainant only consented to the physical contact by reason of the deception, and b) that the deception was employed w/ the knowledge and intention of 17

Rule

inducing the submission of the complainant. Tf, no longer needs to only relate to the “nature and quality of the act”. If the fraud leads to signif risk of serious harm, then yes it negates the consent (Cory). Any deceit which deprives autonomous choice (L‟H-D). STD w/ high risk of infecting complainant (McLachlin) If fraud leads to signif risk of serious harm, then it negates any consent and could lead to assault conviction.

2003 SCC, pg 249 R v Wil li ams Refining Cuerrier, HIV diagnosed after unprotected sex, no assault. Facts A didn‟t disclose HIV to his girlfriend of 18 months after finding out in the middle of the relationship. He found out 5 months in, they already were having unprotected sex. She got infected but it could have happened before he knew. Aggravated assault? Issues Actus reus, consent Does this negate the consent if the knowledge of HIV comes after the act? Held Act can‟t exist w/out presence of mens rea and actus reus at same time. (No) Ratio Refines Cuerrier rule: Actus reus must be simultaneous w/ mens rea. In this case there was an endangering act w/ no knowledge, then knowledge w/ no endangering act b/c she could already have been infected. Rule Knowledge must come simultaneously w/ the act for consent to be vitiated by fraud.

De Minimis Non Curat Lex – pg 253 a common law principle whereby the judges will not sit in judgement of extremely minor transgressions  of the law view of Arbour in Cdn Fdn case: de minimis doesn‟t mean that the act is justified; it remains unlawful  but on account of triviality goes unpunished in Cdn Fdn, Mclachlan didn‟t deny existence of de minimis doctrine, said it was “equally or more vague  and difficult in application than the reasonableness defence offered in s.43 R v K ubassek (2004) (Ont CA), pg 254

Facts

Issues Held Ratio

Rule

Kubassek charged with assault, was a strong opposer of same sex marriage, went to a church, starting quoting scripture, etc, was escorted out by security screaming and throwing pamphlets, pushed Reverend. Trial judge dismissed charge on the de minimis principle: the law doesn‟t concern itself w/ trifles Does the de minimis principle provide a defence to a crim charge? Can it be used in this case? Appeal allowed, Kubassek convicted of assault CA assumed de minimus to be a defence (SCC hasn‟t decided on this issue) , but the facts of this case don‟t fall w/in the ambit of the defence. Kubassek‟s conduct wasn‟t trivial, she pushed him in a location that could have caused him harm, she chose to come to the church and do everything she did. Tf can‟t be characterized as an “irregularity of v slight conseq … a mere trifle, which, if contd in practice, would weigh little or nothing on the public interest”. To fall w/in de minimis, conduct should be an “irregularity of v slight conseq … a mere trifle, which, if contd in practice, would weigh little or nothing on the public interest”

R v Carson (2004) (On t CA) 18

De minimis has no application to cases inv force or domestic violence. Omissions

Omission is a legal duty to act. For an omission to be an Actus Reus, it makes it criminal to not do something. Generally omissions are not criminal acts, but sometimes statute makes it one. Omission only an offence where: Criminal Code explicitly creates a duty Wording broad enough to include omission Common law duty   

Moral and Legal Duties How do legal duties arise? There is only crim responsibility in the face of a legal duty to act  Such duties can arise in legislation:  Duty of persons to provide necessaries 215. (1) Every one is under a legal duty (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; (b) to provide necessaries of life to their spouse or common-law partner; and (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other c ause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life.

Duty of persons undertaking acts dangerous to life 216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing. Duty of persons undertaking acts 217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. What is an omission? – 2 reqmts for guilt: 1) The offence must allow for an omission (eg murder by not feeding a baby) 2) There must have been a legal duty to act ( Moore v R: CL, prov statute, fed statute) F agan v Commissioner of M etr opoli tan Poli ce [1968] (CA) (Identifying an omission)

Facts Issues

Held Ratio

Rule

Charged w/ assaulting police officer, drove on foot, takes his time getting off. Actus reus Is this a continuing act? Or an omission? (Can failing to drive off foot be actus reus for assault?) Convicted of assault It isn‟t ness that mens rea be present at the start of the actus reus (though at some pt they must be concurrent). The actus reus was constituted by driving onto the foot and leaving it there, the mens rea came afterwards when he intentionally let it rest there before moving it. Not a mere omission but an overt act w/ intention to cause harm. DISSENT (Bridge): allowing the wheel to remain on the foot was just an omission, no act, no offence An omission can be construed to be an intentional act as pt of a seq of events linked together. Usually omissions not actus reus. 19

Note

An omission to act can’t be a crime unless there is a legal duty to act. Gen CL tradition, v reluctant to have crim responsibility for doing nothing. Under English CL can‟t convict someone on an omission, but can convict for assault. Basis for this: act and mens rea occurred at the same time, can superimpose them, when knew was on officers foot, kept it there, at that pt has actus reus and mens rea at the same time. Pare: indecent assault, whether it was in the course of committing the indecent assault that the murder took place, in Cdn context, can‟t artificially segment it, have to look at the course of the conduct

How do legal duties arise?       

Mens rea and actus reus don‟t have to be at precisely the same time (Fagan) Where you cause crim events and become aware, you have a duty to act (Miller) Cop under legal duty to enforce laws, tf must cooperate, or obstruction (Moore) Can only charge w/ obstruction when A viols cops statutory authority (Hayes) CL duty to refrain from conduct that‟s reasonably foreseeably harmful (Thornton) Wide reading of s.216 (Thornton) Undertaking must be clear, verbal commitment not enough (Brown)

R v M ill er [1983] (HL)


Rule

Man drunkenly & mistakenly starts fire, woke up, saw it, went to other room Actus reus Is it arson to not put out a flaming mattress that you unintentionally lit? Guilty Where you are the cause of criminal events, and you become aware, you have a legal duty to act. A is guilty if, when he does become aware that the events have happened as a result of his own act, he doesn‟t try to prevent it or reduce the risk of damage by his own efforts or if ness, by sending for help. Trial: conviction b/c he had a “duty” to stop fire once aware. This is contrary to principle that omissions aren‟t actus reus. CA: held that whole seq was a “continuous act” (similar to Fagan) HL: preferred “duty” approach, but would reword it to a “responsibility” When you cause criminal events, and become aware, you have a duty to act. (Sometimes the ct can turn an omission into actus reus by inferring a “responsibility” to do something like put out your flaming mattress).

M oore v R [1979] SCC, pg 271 (Leading case)


Moore, on bike, goes through red, stopped by cop, won‟t give address (omits). Charged w/ unlawfully and willfully obstructing a Peace Officer under CC. Actus reus, omissions Can this stat omission provision by applied to bike riders? Not convicted of Motor Vehicle Act offence, but guilty under CC. Majority: The A was seen committing the offence by the officer, that gives him authority to demand A‟s name, and he has a duty to answer. Although bike doesn‟t meet descrip of motor vehicle, cop under legal duty to enforce laws, tf Moore under duty to give name, otherwise obstruction. Implicit duty. DISSENT: Moore was under no oblig to give name. There is no CL to id to police 20

Rule

( Rice v Connolly) or stat duty, tf no duty. Duties can‟t be implied, must be derived from CL or stat. The duty of a cop to ID someone they see committing a crime doesn‟t infer a duty on A to self -ID. Duties are derived from CL, provincial and federal statutes. If an cop sees you committing an offence, have you give them your n ame.

R v Thornton (1991) (Ont CA), pg 279, Oct 26, Authority for CL duties

Facts

Issues

Held Ratio

Rule

Knowingly donates blood that is HIV+. Charged w/ committing a common nuisance contrary to s.180 of CC. Two agmts: failed to discharge duty to take reasonable care inv w/ a med procedure (CL duty), OR, he committed an unlawful act by donating blood he knew was HIV+. Common nuisance 180. (1) Every one who commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (THE DEFN RECOGNIZES THE OMISSION) (a) endangers the lives, safety or health of the public, or (b) causes physical injury to any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (note: is this an act of commission or omission? Stuart thinks its commission) Actus reus, omissions Can a legal duty arise at CL or must it be found in a statute? Is there a legal duty arising at CL, the breach of which would const an offence under s.180? Guilty (stat duty is always preferable) Followed R v Coyne (NB) that said a “duty imposed by law” could be CL. Imposing a tort-style “DOC”, they rule that A had a duty not to foreseeably cause risk of injury to neighbours, which he breached. CL duty to refrain from conduct which one foresees could cause serious harm to another person.

R v Thornton (1993) (SCC), pg 280, Oct 26 notes

Ratio

Rule Note

S.216 imposed upon the [A] a DOC in giving his blood to the Red Cross. This DOC was breached by not disclosing that his blood contained HIV AB. This common nuisance obv endangered the life, safety and health of the public. “Legal duty” in crim law should always be a stat duty, not CL Are opposed to finding a CL duty, they use statute. Never actually said CA was wrong – we can use both.

R v H ayes (2003) (Ont CA), pg 283


Biker stopped at roadblock, asked to remove helmet so police could check for safety sticker. A refused and was charged w/ obstructing a peace officer. Acquitted Fine is the punishment for failing to submit to search under HTA - this is the measure the legislature puts into place, not arrests (if A had interfered w/ officer writing ticket, this would satisfy obstruction charge). S.216 of HTA requires him to 21

Rule

stop upon request, which he did. Police can only charge w/ obstruction when the A viols the cops stat auth

R v Br owne (1997) (Ont CA, leave to appeal, SCC, refused), pg 290

Facts

Issues Held Ratio

Rule

Dealers, deceased swallowed bag of coke to conceal from cops. A found her shaking, she was dead when they arrived at the hospital. He was charged w/ crim neg. He failed to render assis by failing to take her immed to hosp after undertaking to render such assis and tf caused her death. Actus reus, omissions, crim neg Did A commence an “undertaking” creating a legal duty to rescue? No undertaking, no duty, no offence, acquittal Trial judge deemed “I‟ll take you to the hospital” as undert aking, tf duty to care for her. Ont CA held this wasn‟t an undertaking under s.217. “Undertaking” must be interp in context that max pen is life imprisonment. Threshold should be equally serious. Their relnshp didn‟t create any understanding that he would always take her to hosp if something happened. Evid doesn‟t disclose “undertaking” of a binding nature. Crim neg reqs a serious breach of a DOC, an undertaking clearly made w/ binding intent.

R v Peter son [2005] (Ont CA, leave to appeal, SCC, refused), pg 293


Man let father live in squalor, didn‟t feed him or get him med attn. A was charged w/ failing to provide the ness of life to father, tf endangering his life. Conviction upheld, 6 mos in jail When a parent is under the charge of a child thereby req‟ing the child to provide necessaries of life to that parent under s.215 of CC. When det charge, consider: the relnship of the parties to each other the rel posns of the parties and their abil to understand and appreciate their circumstances whether one person has explicitly assumed responsibility for another  



Rule

Voluntariness a) Defining conduct that is not “voluntary” 

 

There can be no actus reus unless it is the result of a willing mind at lib to make a definite choice or decision ( R v King , [1962] SCC) Automatism: a state of impaired consciousness, no voluntary ctrl over action ( R v Rabey, [1980] SCC) Voluntariness is the key legal element of automatistic behaviour since a defence of automatism amts to a denial of the voluntariness component of the actus reus ( R v Stone, [1999] SCC)

c) Examples not assoc w/ mental disorder

22

R v Lu cki (1955) (Sask. Pol. Ct.), pg 312

Facts

Issues Held Ratio

Operating a motor vehicle, Lucki skidded on ice, and failed to keep to the right side of the highway, inconvenieved other ppl on the highway, contrary to s.125(9) of Sask Vehicles Act. Not guilty A person who by an invol act for which he is not to blame gets onto the wrong side of the road is not guilty under the s. in question. If mens rea wasn‟t an essential ingred of the offence, he would be guilty b/c he drove on wrong side.

Rule

R v Wolf e (1975) (Ont CA), pg 313


Guy getting punched turned around w/ phone as reflex and whacked the guy. Charged w/ assault causing bodily harm. Acquitted Trial judge regarded the action of the A as being a reflex action. Some intent is ness in an assault causing bodily harm.

Rule

R v Swaby (2001) (Ont CA), pg 314

Facts

Issues Held Ratio

Rule

Police followed car, car pulled over, J ran into backyard where the cops later found a loaded unreg, restricted handgun. J claimed the gun was the A‟s and the A gave it to him to dispose of; the A said the gun was J‟s and he didn‟t know abt it till arrested. Acquitted To estab guilt on this accnt, the crown had to prove the coincidence of the 2 essential elements of the offence as defd by s.91(3): 1) occupancy of the vehicle 2) appellants knowledge of the weapon Act must be voluntary for there to be “actus reus” – if A only learned of gun while driving, actus reus doesn‟t instantly kick in. If A reacts after he learns of gun, then there is no voluntary act of mens rea. A claims no knowledge of gun until J left car. The act must be the voluntary act of the A for the actus reus to exist. If the driver acts w/ approp dispatch to either get the gun or himself out of the car, there is no voluntary act for the crim law to punish. You can‟t be forced into voluntary sitns – must allow for reaction time. Not guilty at instantaneous moment of knowledge, need time to leave sitn

R v Ryan (1967) (Aus HC), pg 316


Man robbed a gas station. When he tried to tie the attendant‟s hands, the attendant made a sudden movement, gun accidentally discharged, killed him. Guilty – was voluntary (failed involuntary reflex defence) This fully conscious man has put himself into the sitn where he has a loaded an 23

cocked gun pted at someone w/ his finger on the trigger. That he would be startled and pull the trigger is a foreseeable conseq of his acts and is tf voluntary. Reflex actions not defence when A consciously put himself in sitn where act resulted in death. Look to the probable and foreseeable conseq of prior acts.

Rule

Ki lbri de v Lake [1962] (NZLR SC), pg 318

Facts

Man parked his car dt. When he got back, had ticket for failing to display a current warrant of fitness. The valid warrant was there when he left, and was lost or stolen. Offence was of strict liab, tf he was guilty, no mens rea needed.

Issues Held Ratio

Conviction quashed Omission to put sticker on was involuntary since he didn‟t know it was gone. A person can‟t be convicted of a crime unless he has committed an overt act prohib by the law, or has made default in doing something at which there was a legal oblig for him to do. The act or omission must be voluntary. No liab for 3 rd party interventions beyond your ctrl . Couldn‟t have acted any differently. If unable to act differently, no voluntary act If there is an absolute prohib, and the prohib act is done then the abs of mens rea affords no defence. Justification: general public interest, any consequential injustice which might seem to follow in indivi cases has necessarily been accepted.

Rule

Acting through Innocent Agent R v M ichael (1840) UK Case, pg 323

Facts

A asked nanny to administer known poison to her child. Nanny refused but child of nanny did accidentally. Baby died.

Issues Held Ratio

A guilty of murder. Even though she gave poison to nanny, it is she who is guilty of murder, and just used nanny as an agent to commit the act. Innocent agent: someone who, had it not been for person (A), would not have committed the crime. Where a person (A) attempts or achieves a result through an innocent agent (B), it is as if that person (A) committed the act causing the result itself.

Rule

Causation   

Actus reus for some offences reqs proof that the prohib act/omission actually caused certain conseq Eg. For homicide you must actually cause the death of a person Div into factual causation (whether A caused B, from evidence) and legal causation (policy based, how far should causation go), both must be proven

Smi thers v R [ 1978] (SCC), pg 326

Hockey player kicks other kid in gut, malfning epiglottis, thin skull Facts Fight after game (racially motivated). A kicked deceased in the gut. Autopsy: death due to aspiration of foreign materials present from vomiting (rare). Issues Actus reus, causation 24

Held Ratio

Rule

How certain must causation be? What if the A has precond u/k to A making them more vulnerable? Conviction upheld (Guilty) 1) Where two or more causes combine to produce the result, we don‟t have to decide which caused it. There is contributing cause outside the de min range. 2) Thin skull rule: take your victim as you find them – phys vulnerability of malfning epiglottis doesn‟t break chain of causation. 3) Causation is det by the jury, they don‟t have to listen to experts – Law of causation in favour of Crown. Smithers TEST for causation for manslaughter: contributing cause outside the de minimis range. Thin skull: take your victim as they come. Preconditions irrelevant.

R v Bl aue [1975] (CA) English case (Thin skull rule)

Facts

Issues

Held Ratio

Rule

A entered home of deceased asking for sex, when she refused he stabbed her 4x. At hosp she refused operation and blood transfusion. Was against religion as Jehovah‟s witness. Died. Actus reus, causation Was the refusal of blood transfusion a break in the chain of causation? (What caused death? Stab wound, or refusal of blood transfusion? Guilty, conviction of manslaughter upheld. Principle that those who use violence on other ppl must take their victim as they find them – not just the physical aspect. The q for decision is what caused her death. The stab wound was still the operative cause of death. Law doesn’t req a fatally wounded person to mitigate their injuries. Can‟t be argued that refusal was unreasonable. No break in the causal chain b/w stabbing and death. Must be a signif break in the causal chain to negate the operative cause. Religious observance can be a thin skull. st

[1993] SCC, pg 336 (1 Degree murder – Substantial Cause) R v Harbottle

Facts Issues

Held Ratio

Rule

A and friend confined a woman, A watched while friend raped her. A held her feet while he strangled her. Charged w/ 1 st deg murder. Actus reus, causation. Whether the A‟s participation was such that he could be found guilty of 1 st deg murder pursuant to s.214(5). Convicted of 1 st deg murder. A was a party to the murder while participating in her forcible confinement and assault. Substantial causation ( Harbottle) Test: A must have played an active, usually phys role in the killing, a substantial integ pt. A higher reqmt than Smithers test (only manslaughter). A should be found guilty if participating in a substantial way, or if death was pt of a transaction inv domination as a series of events A was pt of. st Substantial Cause TEST for 1 Deg Murder: A must play an active, substantial, st integral role in the killing to have been a party to the offence of murder (1 deg) Crown must prove that A has committed an act of such a nature that it must be regarded as substantial and integ cause of the death. Conseqs of conviction for 1 st deg murder and the wording of the s. are such that the test of causation for s.214(5) must be a strict one. st A may be found guilty of 1 Deg murder if the crown has estab BARD: 25

1) The A was guilty of the underlying crime of domination or of attempting to commit that crime; 2) The A was guilty of the murder of the victim; 3) The A participated in the murder in such a manner that he was a substantial cause of the death of the victim; 4) There was no intervening act of another which resulted in the A no longer being substantially connected to the death of the victim; and 5) The crimes of dom and murder were pt of the same transaction; that is to say, the death was caused while committing the offence of dom as pt of the same series of events. nd

R v Nette [2001] (SCC), pg 338 (2 Deg Murder: Significant Contributing Cause)

**Controlling authority on causation** (LEADING CASE) Facts 95 yr old victim was robbed, bound, clothes tied around head and left on bed. Died of asphyxiation due to upper airway obstruction. Issues Actus reus, causation Was there legal causation? Held Guilty of 2 nd deg murder Ratio Factual causation: concerned w/ an inq abt how the victim came to his death in a medical, mechanical or phys sense, and w/ the contribution of the A. Legal causation: concerned w/ the q of whether the A should be held responsible in law for the death. The starting pt in the chain of causation is an unlawful act. Seeks to attibute the prohib conseq to an act of the A. Majority (Arbour): Harbottle didn‟t change the std, only made sure 3 rd parties were instrumental. Std is still de minimis for homicide. Should be expressed to jury in pos terms (signif contributing cause) vs neg (not insignificant). DISSENT (L‟H-D): This changes the std. Not insignif isn‟t the same as signif. Thinks its being too soft. nd Rule Arbour changes Smithers test (manslaughter) to apply to 2 deg murder: significant contributing cause (from contributing cause outside de mini)

R v Talbot (2007) (Ont CA), pg 346 (LEADING CASE IN ONTARIO)


Fight outside restaurant, at least one party died as a result of the fight. Whether the initial blow or subsequent kick caused the death. A acquitted. There was no evidentiary foundation for the kick being the significant cause of death. Factual causation: physical or medical cause of death (if victim wouldn‟t have died but-for the actions of the A, causation is estab ( Nette) Legal causation: normative inquiry; who among those that caused factual death should be held legally responsible for death Juries asked to consider legal and factual causation together ( Nette) **this reconciles the use of both Nette and Smithers ** Did A‟s actions signif icantly contribute to the death? (this way we can combine factual and legal causation per Nette) Contributing cause can be that which exacerbates existing condition and thereby accels death. If crown sought to rely on the kick as contributing cause of death, it had to prove BARD that kick was contributing cause w/in the meaning of Nette (significantly 26

Rule Note

contributed). TEST for legal causation of a “significant contributing cause” V clarifying judgment, looks at Nette and recogs that causation has factual and legal component (but-for answers factual)

Note: Smithers and Nette tests can sometimes apply to non-homicide sitns R v F. (D.L.) (1989) (Alta CA), pg 348

Facts

Issues Held Ratio

Rule

A charged w/ dangerous driving causing bodily harm. Found to have bld alc above legal lim, no glasses, and hit jaywalker. Trial judge acquitted b/c found that it wasn‟t the elements of dangerous driving, but his failure to see the jaywalker due to a moments inattn that caused him to hit the guy. Actus reus, causation What is the approp std? Is it “beyond de minimis”? Yes it is, reversed trial decision and convicted. McClung doesn‟t like Smithers rule b/c it has potl to ensnare substantially blameless ppl, but he must apply it. The dangerous driving was proven w/in CC defn, and it was beyond de minimis, so he must be convicted. For McClung the cause should be “real and truly contributing”

R v Smi th [1959] (Cts.-Man. App. Ct.), pg 351

Soldier stabbed in lung, dropped twice, bad treatment, stab still cause Facts A was ct marshaled for murdering another private. Stabbed him in neck and back during a fight. Others tried to carry him to medics, dropped him 2x along way, he received poor treatmt that could have impeded his chance of healing. Had 75% chance of recovery if not dropped or treated poorly. Issues Actus reus, intervening cause If intervening events dec chance of recovery, is the original assailant still the cause of death? Held Yes, convicted Ratio Similar to Blaue. To break the chain of causation it must be shown that there is something ultroneous, something unwarrantable, a new cause that disturbs the seq of events, something which can be desc as either unreasonable, or extraneous or extrinsic. Rule Breaking the chain of causation reqs something drastic, rendering the original act not a cause. If act is still an operating and substantial cause at time of death, still liable.

Th e Queen v Bi ngapore (1974-5) (S. Aus. S.C.), pg 354

Head injury, leaves hospital against advice, dies, causation chain not broken Facts Man severely wounded to the head by A, bleeding. Taken to hosp, operated on and warned of severe risk of leaving hosp, still left. W/in 6 hrs, was back, hemorrhaging and died. Issues Actus reus, intervening cause If someone knowingly puts themselves at risk and an existing injury deteriorates, causes death, does that break the chain of causation? Held No, convicted Ratio The original act causing injury doesn‟t cease to be the causative act b/c the victim 27

Rule

acts to his own detriment or some 3 rd party is negligent. Negligence, acting to ones own detriment, doesn’t brk chain of causation.

R v M enezes (2002) (Ont SCJ), pg 355

Speed racers, liable for other participants injuries only during the race. Facts A charged w/ crim neg causing death. A was in street race w/ D, admits to hacking and playing w/ him. At one pt, A dropped back, ended the race, but D sped ahead at same high speed and struck pole. Issues Actus reus To what extent does the other driver in race neg cause death to other driver? Held Acquitted, only while the race is still going on. Ratio Cts have held street racers in car B liab for car A hitting a non participant (R v Rotundo), the drivers of car A and B liab for the death/injury of passengers in car B as well. Only makes sense that if driver B killed in race, driver A is liab. Distinguished: the evid shows that time elapsed after A slowed down, dropped back for D to know race over. Continuing speed was an indep action, causation is thus w/in RD. Rule Street racers liab for death/injury of other co-participants, but only during the race.

Mens Rea: The Fault Requirement

Mens rea is another essential element to any crim offence. Where actus reus is the phys prohib act, mens rea is the mental element. Subjective/Objective Distinction 

 

 

SCC accepts that there should be a clear distinction b/w the subjective std of whether the A was actually aware of a risk, and the objective std of whether the A failed to measure up to the external std of the reasonable person. Subjective std: all of the A‟s indiv factors are taken into accnt Objective (tougher since Creighton ): no personal factors such as age, race, pov gender or experience can be taken into accnt except where they rel to incapacity A low level objective std is pervasive for public welfare offences The subjective approach is still reqd for most crimes, but for a signif amt, there are now less demanding stds of fault

R v Hu ndal [1993] (SCC)

Facts Issues Held Note

Dangerous driving charge. Fault reqmt for crime of dangerous driving, how to det mens rea? Objective std for dangerous driving of a marked departure from the norm Subjective TEST – diff from “reasonable person” test in negligence. Reqs drawing inferences from the actions, words at the time of the act, or in the witness box to det state of mind. The Std test for mens rea. Must consider all the evid relev to the fact (A‟s belief) at issue Can draw inferences from A‟s actions/words at time of event & A‟s testimony Consider other relev facts Subjective test doesn‟t mean you take the A‟s word over other evid Subjective TEST: what was actually in the A’s mind at the moment of the  

 

Rule

28

offence, which can be drawn from inferences through the A’s actions or words. Proving that the A “must have thought” still meets this test, but not “must have realized IF he had thought” Negligence TEST: Test for negligence is an objective one, requiring a marked departure from the standard of care of a reasonable person.

R v Theroux [ 1993] (SCC) 



 





Rule

Presumption that you intend the natural and probable conseq of the act is wrong. Its an error to tell the jury that a man intends the nat conseq of his act. Crown need not show precisely what thought was in the A‟s mind at the time of the crim act. In certain cases, subjective awareness of the conseq can be inferred from the act itself. The fact that such an inference is made, doesn‟t detract from subjectivity of the test. Even for subjective awareness, the approach to proof is OBJECTIVE Fraud charge. Mens rea? Use subjective test (also subjective for theft). Diff from “voluntariness” reqmt of actus reus, meant to req a “wrongful intent” to prevent convicting morally innocent. In this case, A defrauded investors but honestly thought they wouldn‟t lose their money. Fraudulent conduct can include recklessness in the sense of “knowledge of the likelihood of the prohibited consequences” Knowledge of wrongness not reqd: The A‟s belief that the conduct wasn‟t wrong would be no defence, and there was no reqmt of subjective awareness of dishonesty Did the A subjectively appreciate the consequences as a possibility? NOT did they foresee the conseq as probable

(1974) (Ont CA), pg 366 R v Mull igan


Rule

A repeatedly stabbed wife, told police he didn‟t intend to kill her. Convicted of murder. The subjective test doesn‟t mean that his word is more credible than the evid The probability that harm will result from a man‟s act may be so great and so apparent that it compels an inference that he actually intended to do that harm. But it is misleading to say that a man is presumed always to intend the natural and probable conseq of his acts. Despite A testifying he didn’t intend to kill, it can be inferred from his actions that he did. (circumstances estab intent to kill)

R v Or tt (1968) (Ont CA), pg 367

Facts

Held

Murder charge. Trial told jury to presume A had intent to kill unless he could prove he was incapable of that. If someone stabs someone in the heart, are they presumed to intend to kill? – Presumption NO, but intent can be inferred from the actions. Juries should be told that gen it‟s a reasonable inference that a man intends the nat conseq of his act. The word “presumption” should be avoided in the context of subjective test. Juries should simply be told that gen it‟s a reasonable inference that a man intends the nat conseq of his act. Jury can infer intention, but the test is subjective knowledge. Presumed is confusing b/c it implies that there is some onus on A. Replace “a person is presumed to have intended the nat conseq of his acts” w/ “it is a reasonable inference that a man 29

intends the nat conseqs of his acts” No PRESUMPTION that a man intends that nat conseq of his act, but it’s a REASONABLE INFERENCE that he does.

Rule

Fault for Public Welfare (Regulatory) Offences

Fault reqmt:    

 

To punish someone for something they couldn‟t have avoided seems immoral a nd unfair Crim responsibility w/out fault removes choice of lawful behaviour (not good) w/outr reqmt of moral culpability, society would have lim protected a gainst the power of the state deterrence alone isn‟t good enough to stop crime – need to show fault which can hold one responsible for the choice to commit a crime some offences don‟t req fault – absolute, strict liab for offences requiring fault – post Sault Ste Marie Mens rea: subjective test - reqs aware state of mind, guilty mind, intention, recklessness, o knowledge Negligence: objective test – considers carelessness, inadvertence, reasonable std o

a) Common Law Beaver v R [1957] (SCC), pg 368 (Subjective std for true crimes)

Authoritative contrib. to the law as to mental elem & mistaken belief in true crimes. Facts A and friend had heroin and sold some to undercover cop, A claimed it was something else. Trial judge said all that mattered was if he sold and possessed heroin, convicted (suggests abs liab). Issues Held Quash conviction on charge of having possn of a drug. Affirm conviction on charge of selling. Ratio Crown must prove that A knew if was heroin. On face of statute, no fault reqmt (but ct says legislature must be explicit if wants abs liab), & it‟s a reg offence, which suggests abs liab (not more like real crime that harmful in itself than like reg offence). Also mandatory jail time means mens rea reqd Note: defn of possn now incl reqmt that A knows what they have DISSENT (Fauteux): Look at nature of the act – to be tough on morphine and other dr ugs. They sold morphine tf it doesn‟t matter what they thought. Note: prior to Sault Ste Marie, was dichotomy – full mens rea or nothing Rule To be convicted of possn of drugs, a mental fault element is reqd (defn of true crime). When dealing w/ an offence that is truly criminal, then mens rea is reqd unless parl explicitly says otherwise. Since Beaver, its been accepted that all drug offences req subjective mens rea (s.4(3) expressly reqs knowledge)

R v City of Sault Ste Mar ie [1978] (SCC), pg 374 Creat’n of strict liab for reg offence

Strict liab categ of reqmt estab for reg offence – alternative to mens rea and abs liab Facts City of SSM discharged materials that might impair the quality of the water in Cannon Creek and Root River. Indep contractor hired to dispose of waste, put in landfill next to creek. City said not responsible b/c contractor built landfill. New trial ordered b/c abs liab unconst (viols s.7 w/ imprisonmt). Charged under s.32(1) of Ont Water Resources Act. Issues What is fault reqmt? Held Strict liab (compromise b/w abs liab and subj fault) reqd here & in most reg offences. 30

Ratio

Rule

Strict liab = presumption of guilt (like abs liab) but w/ defence of due diligence. Strict liab presumed w/ reg offences unless statute says otherwise or uses language to imply a reqmt of mens rea such as “willfully”, “w/ intent”, “knowingly” or “intentionally”. Three categ of offences: 1. True Crimes: Offences that require some positive state of mind (mens rea) as an element of the crime. These offences are usually implied by the use of language within the charge such as "knowingly", "willfully", or "intentionally". 2. Strict Liability: Offences that do not require the proof of mens rea. The act alone is punishable. The duty is on the accused to have acted as a reasonably person and has a defence of reasonable mistake of fact (a due diligence defence). The Court stated that the due diligence defence "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability." The reason for this is that the Court described a need for a class of offence that had a lower standard to convict than True Crimes but was not as harsh as Absolute Liability offences. 3. Absolute Liability: Similar to Strict Liability, these offences do not require proof of mens rea either. However, the accused has no defences available. This case recog need for categ of burden of proof b/w mens rea and abs liab. Note: the crown doesn‟t have to prove neg in a strict liab case. The role of strict liab was to lim harshness of abs liab offences that viol fund principles of penal liab. The onus to prove the defence of due diligence lies w/ the A Creates 2 types of liab for reg offences: strict and absolute.

[1991] (SCC), pg 383 R v Wholesale Travel Group I nc


Rule

Charge: misleading advertising contrary to s.60(2) of Competition Act (note: Stuart thinks they should have been charged w/ fraud under CC – not a good decision)

Reverses the onus of proof, A needs to show on BoP that they met a reasonable std of care. Will be convicted if they don‟t meet std of care e ven if there is a RD. The stigma attached to a reg offence isn‟t so great as to make subjective mens rea constitutionally reqd. Act proved BARD, then A must show he lived up to std of care on BoP (either reasonableness std or std in legislature)

R v Chapin [ 1979] (SCC), pg 390

Shows how to apply offence categ scheme in SSM. 1) Det if reg offence, if yes 2) Presume strict liab unless wording says otherwise (w/: willfilly, intentionally, w/ intent, or knowingly) or if high penalty (jail time) Facts Wife is hunting in her husbands club. She was w/in 1/4 mile of a baited area (w/out knowing). Charged under s.383 Migratory Birds Act (not CC) (is a reg statute for the public welfare of ducks and other migratory birds). Issues Held Ratio The A may absolve himself of liab on proof that he took all the care which a 31

Rule

Note

reasonable man might have been expected to take in all the circumstances, or, he was in no way neg Note: Charter arrives after this case in 1982 – Charter Stds alive then If CC has words: intentionally, willfully, knowingly, etc, implicitly making ref to a mens rea offence This is a “classic” eg of an offence of strict liab

b) Charter Standards Ref erence r e Section 94(2) of the M otor V ehicl e Act (B C) [1985] (SCC), pg 396


Rule

Act imprisoned drivers w/out defence, if found driving on susp license

Absolute liab and imprisonment can‟t be combined – imprisonment w/out any possible defence infringes on right to lib in Charter. The fund POFJ are an ever changing qualifier for det what may viol a persons guarantee to life, lib and sec of the person. There can be cases of abs liab under this s., but there can‟t be a restriction on lib (ie can‟t have imprisonmt as punishment). The ct did something uniq ue by creating strict liab as an alt to abs liab in SSM. Note: doesn‟t apply to corporations b/c s.7 deals w/ ppl. Can still create abs liab for corporations b/c there is no risk to their lib (of going to jail, etc) Can’t have prison + abs liab, this is unconst

R v Pont es (1995) (SCC), pg 404

Facts Held

SCC reconsid constitutionality of offence of driving while prohib under s.94 of BC Motor Vehicle Act Offence is constitutional – no charter viol b/c no risk of imprisonment

R v Cancoil Th emal Cor p. (1986) (Ont CA ), pg 404

Makes provision const by taking away imprisonment Facts A machine having an exposed moving part that endangered safety of a worker wasn‟t equipped w/ and guarded by a guard or other device to prevent access to the moving pt (charged under s.14(1)(c) of Occup Health and Safety Act). Also, charged under s.14(1)(a) b/c failed to ensure that the equipmt, materials, and protective devices prescribed by s.28 of the revised reglns of Ont were provided in an industrial establishment (R v Wholesale Travel Grp Inc).

Issues Held Ratio

Rule

Ct takes away imprisonmt, creating a strict liab offence and making provision const The exclusion of s.14(1)(a) from the defence would suggest that its an offence of abs liab. But if it were treated as creating an abs liab offence, it would viol s.7 of Charter (can be punished w/ imprisonment). Tf to avoid a viol of s.7, 14(1)(a) must be treated as a strict liab offence. Legislative intent is being overridden b/c of new charter std (as decided by SCC in Motor Vehicle Ref ) Made provision const by taking away imprisonment tf creating strict liab offence

R v Transport Robert , R v Wil li am Camer on Tr ucking (2003) (Ont CA, leave to appeal, SCC, 32

refused), pg 417

Facts

Issues Held Ratio

Rule

s.84.1(1) of Highway Traffic Act:  makes it a guilty offence if a wheel comes off a commercial truck when on highway  no defence if exercised due diligence  Penalty: fine b/w 2k and 50k, D not liab to imprisonment or probation as a result of conviction or for default in paymt of the fine Whether its open to the legislature to create an abs liab offence where there is no possib of imprisonmt or probation if the D is convicted The diminished stigma isn‟t suffic to trigger the sec interest in s.7, even when coupled w/ the fine. Kinds of stress that have been recog to trigger s.7: attempt to take child away from parents, crim prohib on assisted suicide for desperately ill patient, regulating abortion. This is the only reg offence in Ont that you can‟t go to jail for if you don‟t pay fine. Sec of the person not viol if charged w/ abs liab offence b/c find that this doesn‟t meet the defn of personal stress. Tf can‟t trigger agmt abt sec of the person in this case and agmt fails. Abs liab offences are permitted when there is no viol of sec of the person (ie prison). There is no viol even when penalty is big fine.

R v Beauchamp (1953) (Ont CA), pg 425

TEST for due diligence = reasonable man Facts A charged w/ careless driving. Bus driver, in the process of parking, crushed an already parked car. He checked his inside mirror, but the outside mirror was loose, and b/c of vibration of bus, was useless. At trial: convicted. Issues Held Appeal allowed Ratio Rule TEST: Whether it is proved BARD that the A, in light of the circumstances, failed to use the care and attn that the ord driver would. (It must also be considered, even if it was proved the care was below the std, that the conduct must be of such a nature that it can be consid a breach of the duty to the public and deserving of punishment) – this has been used to get ppl off careless driving since then

Fault for Crimes

a) Murder and the Charter i) Murder under ss.229(a)(i) and (ii) 

These are still constitutional and can be split into 1 st and 2nd deg

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 33

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.

Simpson v R (1981) (Ont CA), pg 428

Judge said to jury they have to det if “death might result” but he should have said that “death is LIKELY to result”. Facts Attempted murder case Ratio Mens rea for attempted murder and murder is the same. Must have some intent, can‟t just be that you do something dangerous and someone dies. Rule Liability under s.212(a)(ii) (now 229(a)(ii)) is a subjective std

R v Edelenbos (2004) (Ont CA) , pg 430

Facts

Issues Held Ratio

Rule

A went to victims home and sexually assaulted and strangled her. Claims he didn‟t intend to kill her, he just wanted to stop her screaming. Trial convicted. Appeals conviction on basis that trial judge erred in defining the word “likely” in his jury charge regarding the intent reqmt for murder. Defn of likely was unness and potly confusing to the jury.

The jury would have given the word “likely” its common sense plain meaning as other juries have across Canada. Where the jury doesn‟t need an analysis of a commonplace everyday word, the trial judge should avoid entering into the possible shades of meaning. Subjective test, not objective. Once intent to cause bodily harm proved crown must prove that A knew such harm was likely to cause death (subjective std)

Vail lancour t v R [ 1987] (SCC), pg 434

s.230(d) of CC unconstitutional (Constructive murder) Facts A convicted of 2nd deg murder in a jury trial in Montreal. Committed armed robbery in pool hall, A had knife, had agreed to commit an armed robbery but just w/ knives – his friend had a gun, A thought the gun was unloaded. Friend shot and killed someone. Issues Held s.230(d) of CC is now unconst as some crimes have such stigma attached to conviction or penalty that the POFJ req a mens rea reflecting the nature of that crime. s.230(d) viol s.7 of the charter as there wasn‟t even a reqmt of subjective foresight of death. The viol couldn‟t be saved under s.1. Ratio Rule Lamer estabs that the min reqmt for homicide is at least objective foreseeability.

34

[1990] (SCC), pg 443 R v M artineau Subjective mens rea for murder Facts Break and enter a trailer, one w/ a rifle, the other w/ a pellet gun. The A said he thought it would just be a break and enter. Tied up two occupants, robbed them, accomplice shot the two occupants. Charge: 2 nd deg murder, s.230(a). Issues Held s.230 unconsitutional, s.229(c) unconstitutional (the objective pt declared unconst – “ought to”), new trial ordered Ratio Lamer inc reqmt for homicide to subjective mens rea. Comes up w/ v clear charter stds. 1) B/c of special nature of stigma attached to murder, mens rea must reflect partic nature of the crime (similar to Vaillancourt ) 2) Punishment must be proportionate to moral blameworthiness of the D 3) Causing harm intentionally must be punished more severely than causing harm unintentionally. 4) There must be foresight of the particular result. Rule

iii) First Degree Murder, s.231 

  

  

Both 1st and 2nd deg murder carry a sentence of life imprisonment, but 1 st deg reqs parole ineligibility for 25 yrs, whereas 2 nd deg sets parole ineligib b/w 15-25 yrs Planned and deliberate Killing a cop (or anyone in duty of preservation of peace) Where the A was committing or attempting to commit one of the following: Hijacking an aircraft o o Sexual assault o Kidnapping, forcible confinement Hostage taking o Where the A intended to cause the victim fear for their safety or that of their loved ones Where the offence also constitutes terrorist activity; or, Where the offence is commited for the benefit of or in assn w/ a crim org

All murder that isn’t first degree is second degree R v Smith (1979) (Sask CA ), pg 456

1st deg murder must be planned Facts 3 friend went for drive and ended up in abandoned barn. Massier came back to see Skwarchuk shot in the elbow. Smith reloaded gun, called Skw‟s name, Skw started running. Smith shot 2x, pellets hit Skw in back, shot again, stayed down, Smith then shot him in the back of the head. Charge: s.231, 1 st deg murder, convicted at trial. Issues Was this planned and deliberate? Held Might have been deliberated, but wasn‟t planned (this is a gen inter p according to Stuart) – verdict of 1 st deg set aside, conviction of 2 nd deg subst. Ratio Planned = arranged beforehand Deliberate = considered not impulsive His actions were the result of a sudden impulse. It may well be that the killing was delib, but there can only be a conviction of 1 st deg if it was planned. Planning doesn‟t have to be complicated, can be quick. st Rule 1 deg murder must be planned 35

R v Nygaar d and Schi mmens (1989) (SCC), pg 460

Case on “planned and deliberate” Facts A repeatedly bashed deceased on head w/ baseball bat, after cheque bounced, charged w/ 1st deg murder Issues What is the specific mens rea reqd by s.229(a)(ii) to which the element of planning and deliberation must be related? Held Ratio s.229(a)(i) demands a highly subjective mental element to be present, that of the intent to cause the gravest bodily injuries that are known to the A to be likely to cause death to the victim. It is to this intent that the s.231(2) reqmt of planning and deliberation can be properly applied. Note: don‟t have to plan the killing of a police officer, its an automatic categ Rule Min std for murder means there has to be knowledge of the likelihood of death, w/ “likelihood” having reqmt that death will probably occur.

R v Coll in s (1989) (Ont CA), pg 463

Refers to killing of occupational grps – must know it’s a cop on duty The A must have knowledge of 1) the identity of the victim as one of the persons desig in the ss, and 2) that such person was acting in the course of his duties or was reckless as to such identity and acts of the victim. Tf off duty police officer might not be protected. Onus on crown to prove that A knew it was a police officer.

R v Ar kell [1990] (SCC), pg 464

Facts

Issues Held Ratio

Rule

s.231(5) makes murder while committing certain offences automatically 1 st degree murder: SA, agg SA, kidnapping and forcible confinement, hostage taking, hijacking an aircraft Whether s.231(5) contravenes s.7 of Charter (constructive murder) Doesn‟t infringe s.7, is neither arb nor irrational Found no POFJ that prevents parl from classifying murders done while committing certain underlying offences as more serious, and tf attaching more serious penalties to them. Distinction b/w 1 st and 2nd deg and diffs in parole eligib – are neither arb, not irrat. The relnshp b/w the moral blameworthiness and the classification exists. In light of Martineau, it must be proved that the murderer had subjective foresight of death. Principle that moral blameworthiness of the offender and other conditions such as deterrence and societal condemnation of the acts of the offender are met. st Automatic 1 deg murder categ for murder in the course of committing certain offences (eg SA, hijacking aircraft, etc) NOT unconst

R v Str ong (1990) (Alta CA), pg 466

Held

Note (from treatise):

1st deg murder under s.231(5) didn‟t incl murder in the course of robbery. Tf not all offences inv illegal dom of one person by another had been incl in the list of offences. How can it be said that the list of murders under s.231 incls all murders inv unlawful domination over the person? Doesn‟t any murder inv such domination? What of the fact that murders commited in the course of break and entry or in the course of armed robbery are NOT included? The classification was and is irrational and should have 36

been declared unconst.

R v Shand (2011) (Ont CA )

Facts

Issues

Held Ratio

Rule

Note

A went to home of drug dealer planning to steal mj, dealers GF had bag of mj, followed her to basement, A pulled gun, it discharged, killing F. Trial: charged w/ 2 nd deg murder, convicted. Whether the gun was discharged accidentally or delib? On a ppeal also challenged const of s.229(c) on basis that s.7 of charter demanded min mens rea of intent to cause serious bodily harm to the victim to found conviction for murder, and, in alt, that the s viol s.7 on basis of vagueness and overbreadth. Appeal dismissed Two elements to s.229(c) – an unlawful object and a dangerous act (reqmts met in this case). Det s. was consti and didn‟t viol s.7 on overbreadth or vagueness. Subjective foresight of the likelihood of death and the unlawful object met the const min, specific intent to kill or cause bod harm not reqd. The act was drawing and using his gun in an attmpt to subdue the occupants of the room. It was his choice to use the gun to subdue, tf doesn‟t matter whether the gun was accidentally or intentionally discharged. KEY ASPECT of the A‟s mens rea: the knowledge that his actions were likely to result in death has to be assessed at the moment the dangerous act was committed, not earlier in the robbery. s.229(C) will be satified when the following 6 elements present: 1) The A must pursue an unlawful object other than to cause the death of the victim or bodily harm to the victim knowing that death is likely 2) The unlawful object must itself be an indictable offence req mens rea 3) In furtherance of the unlawful object, the A must intentionally commit a dangerous act 4) The dangerous act must be distinct from the unlawful object, but… only in the sense that the unlawful object must be something other than the likelihood of death, which is the harm that is foreseen as a conseq of the dangerous act. 5) The dangerous act must be a specific act, or a series of closely rel acts, that in fact results in death, though the dangerous act need not itself const an offence. 6) When the dangerous act is committed, the A must have subjective knowledge that death is likely to result. Only deal w/ this if the charge is 2 nd deg murder, instead of only talking abt 229(a)(i) and (ii), have to also talk about (c)

b) Subjective Awareness Guaranteed by Charter for Few Crimes i) Common law presumption: 







If CC says “intentionally”, “willfully” or “knowingly”, we know parl intend ed it to be a subjective mens rea offence If there are no mens rea words, and crime doesn‟t have objective neg wording, it should be interpreted as a subjective mens rea crime There are only a few crimes that req subjective mens rea, but there is an assumption that most crimes req this via CL Some offences carry both subjective and objective elements, in Lohnes, A needed objective foresight to realize what causing a disturbance in public was, and a subjective element to the decision to swear and fight during that disturbance.

37

ii) Motive J. Hall, General Principles of Criminal Law 

  

 

(1) Mens rea distinguished from motive mens rea, a fusion of cognition and volition, is the mental state expressed in the voluntary o commission of a proscribed harm (2) motive not essential in mens rea motive impt in det guilt of the D questions of motivation and mitigating circumstances are allocated to administration which can explore such issues thoroughly (3) mens rea must be given an objective ethical meaning D‟s conscience, not personal code of ethics of the judge or jury can be substituted for the ethics of the penal law

L ewi s v R [ 1979] (SCC), pg 469


Rule

A and Tatley jointly charged w/ murder of T‟s daughter and son -in-law. A mailed package on behalf of T but denied knowledge that package had bomb. Do we have to prove motive in this case? Appeal dismissed, Lewis convicted. “Motive” and “intent” freq used interchangeably, but in the crim law they are distinct. As evidence, motive is always relev, but its no pt of the crime. If there is no motive, its always an impt factor in favour of the A. Motive not used b/c:  Just b/c have motive, doesn‟t mean have intent to kill.  Motive is something only A would know Mental element of crime reqs no motive. Role of motive legally irrel to crim respon, tf not ness. Don’t have to prove motive.

R v M athe (1973) (B CCA) , pg 473

Fake bank robbery – motive can be used to prove lack of intent Facts A entered Canada Permanent Trust Company office at around 10:15am, told teller he had a gun and demanded she hand over the cash, emphasized it be done quickly, she started getting out the cash, then he said “that‟s not what I want” and said he was joking. In taking out the cash, the teller set off a soundless buzzer, accused was found by police later at 11:10am. Charge is attempted robbery Issues Were the A‟s actions a joke or did the words “that‟s not what I want” indicate a change of plan? Held Appeal allowed, conviction quashed and verdict of acquital entered Ratio Appellant did this and it amounted to a joke. Cites R v Wilkins, and R v. Kerr, where A was playing a joke and was let off Rule Motive can be used to prove lack of intent

iii) Desire/Purpose R v H ibber t [1995] (SCC), pg 476

Don’t have to prove desire in most cases. Held Driver of a getaway car can‟t get off b/c they were participating in the crime so they could make $100 rather than participating in the crime for purpose of aiding in the crime. 38

Ratio Rule

A person who consciously performs an act knowing the conseq that will flow from it intends these conseq or causes them on purpose regardless of what was desired. Don’t have to prove desire in most cases.

Subjective mens rea, pg 489  

 

   

Must be aware of risk, if not aware of risk, there is no subjective mens rea Have to get into mind of the accused and ask whether THIS person (not a reasonable person) was aware of the risk Concept of willful blindness Most times when ppl talk about subjective mens rea, intent, knowledge, … willful blindness is the package, however in some cases its limited to intent In terms of intent, (in murder sometimes talk about means to kill) Often when dealing w/ possession offences, have the word “knowledge” As long as its all subjective, its not a problem w/ the judges There are certain crimes that are limited to intent and you aren‟t supposed to extend to recklessness or willful blindness

iv) Intention or knowledge R v Buzzanga and Dur ocher (1979) (Ont CA ), pg 489

Facts

Issues Held Ratio

Rule

2 french cdns in essex county, there was a debate about building a French language high school, printed offensive flyer. Said that they intended it as satire. Ppl responded to the flyer and there was a promotion of hatred. Charge: s.319.2, willful promotion of hatred Mens Rea, recklessness What std of mens rea does “willfully” imply in this case? Usually, and in this case, it means intentionally. Appeal allowed, convictions set aside, new trials ordered “Willfully” can mean intentionally or recklessly. Recklessness being awareness that your actions will cause a prohib result and doing it anyways. The wording of this offence implies parl intended to lim it to intentional promotion of hatred. The trial judges finding that A‟s intent was to cause “controversy, furor and uproar” was intent to promote hatred wasn‟t correct. Defn of mens rea: The act was “willful” (intentional) only if: a) their conscious purpose in distributing the document was to promote hatred against that group, or, b) they foresaw that the promotion of hatred against that group was certain or morally certain to result [from the distribution of the pamphlet], but distributed it as means of achieving their purpose [of obtaining the French-language high school] “Willfully” usually means intent is reqd to prove mens rea, sometimes recklessness is also acceptable.

v) Recklessness or willful blindness R v Therou x [ 1993] ( SCC), pg 498

Leading case on fraud. Facts A charged w/ fraud and convicted under s.380(1)(a) of CC. The company entered into contracts and received deposits on the basis of a false representation by the 39

Issues

Held

Ratio

company that the deposits were insured. The A knew at the time that the insurance was not in place but nevertheless made misrepresentations to induce potential home purchasers to sign a contract and give a deposit. Whether the fact that the accused honestly believed that the projects would be completed negates the guilty mind or mens rea of the offence (Ct examined the question of what constitutes the mens rea for fraud) Convicted of fraud. Ct held D was liab owing to his recklessness in dealing w/ the buyers. Specifically b/c he had subjective knowledge of the risks assoc w/ the prohib act, and yet persisted w/ the act, tf can be found reckless and criminally liab. “in cases like the present one, where the accused tells a lie knowing others will act on it and thereby puts their property at risk, the inference of subjective knowledge that the property of another would be put at risk is clear” Proper focus in det the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts knowing or desiring the consequences proscribed by the offence Actus reus of the offence of fraud will be established by proof of: 1) the prohib act, be it an act of deceit, a falsehood or some other o fraudulent means 2) deprivation caused by the prohibited act, which may c onsist in o actual loss of the placing of the victims pecuniary interests at risk the mens rea of fraud is established by proof of: 1) subjective knowledge of the prohibited act, and o 2) subjective knowledge that the prohibited act could have as a o consequence the deprivation of another (which deprivation may consist in knowledge that the victims pecuniary interests are put at risk) where the conduct and knowledge reqd by these defs are established, the accused is guilty whether he actually intended the prohibited consequence of was reckless as to whether it would occur Recklessness refers to having the subjective knowledge of the risks assoc w/ some specific prohib act and then persisting w/ the prohib act. 







Rule

Sansr egr et v R [1985] (SCC), pg 500

Leading case on rape, mens rea, diff b/w recklessness and willful blindness Facts Not impt Issues Mens rea What are recklessness and willful blindness? Held WB=suspicion + didn‟t ask + didn‟t want to know = knowledge Ratio Recklessness is diff from tort negligence. Not “reasonable man”, more subjective. Person must be found to have KNOWN of danger/prohib act resulting from their actions and still persist in it. Willful Blindness allows for certain knowledge to be presumed of A where they become aware of the need to inquire, declines to make that inq, preferring to remain ignorant. That‟s as bad as actually knowing. No reward for trying to cheat the justice sys. Willful blindness is an aspect of recklessness. In this case, A honestly believed his victim‟s consent wasn‟t caused by fear or threats. Finding of recklessness in this case couldn‟t override the mistake of fact, but willful blindness will (??) Rule Willful blindness is when A knows he should ask something, doesn’t b/c remaining ignorant would negate mens rea, is treated the same as actual 40

knowledge (the law presumes knowledge on the pt of the A).

R v Blondin (1971) (BCCA), pg 503


Rule

A brought into Canada from Japan, narcotics concealed in scuba suit. Claims he didn‟t know what was in the suit, and that he was paid to take it over. Mens rea How much does A really need to know? Appeal allowed, set the verdict of acquittal aside and order a new trial. Had to know it was a narcotic, can be inferred from willful blindness/recklessness. Sufficient to find Mens Rea in the broadest sense: Knowledge that it was narcotics. Knowing it was illegal only would not be enough. Judge should have instructed jury that they can find Mens Rea if they find A was reckless or willfully blinded himself to what it was, infer that it was Narcotics. Mens Rea interpreted broadly. Only needs to be proven A knew it was a narcotic (illegal substance not enough), but that can be inferred from Willful Blindness or Recklessness.

R v Curri e (1975) (Ont CA), pg 507

No longer a leading case Facts A was charged with “uttering a forged document” for trying to cash a cheque for over $400 at a CIBC in Welland payable to Edward Gerada with a fake signature endorsing over to him. A had been approached by a guy in a bar he didn‟t know who said he‟d give him $5 to cash it, he actually had stolen it out of Mr. Gerada‟s mailbox. Trial Judge convicted on Willful Blindness. Issues Does he have the sufficient mens rea? Can willful blindness be based on finding that A ought to have inquired further? Held No, acquitted. Ratio Finding that A should have inquired further about the validity of the cheque i s not Willful Blindness. It must be found that A had his suspicions aroused and then deliberately chose not to inquire further. This guy was just dumb. Rule WB requires suspicion aroused and a deliberate choice not to inquire.

R v Duong (1998) (Ont CA), pg 510

Facts

Issues Held Ratio

Rule

A charged with being an accessory after the fact to murder by his friend Lam. Lam was in the media for murder, asked A if he could hide out at his place because he was in trouble for murder. Police found him after two weeks and asked what Lam told A about the crime, A said he told Lam not to tell him anything because he knew he‟d be in trouble. Mens rea Can willful blindness make you an accessory after the fact to murder? Yes, convicted. A‟s lawyer argued that even if he had made further inquiry Lam might not have told the truth. But, WB does not turn on hypothetical answers to the required inquiry, or what A would have hypothetically learned. That‟s all irrelevant. He clearly made the choice not to inquire to avoid guilt. WB does not turn on what A would have hypothetically learned if they had inquired further. 41

R v Briscoe [2010??]   

  

Briscoe got into his car, drove him to a secluded spot, then is saying that he wasn‟t actually at the scene Did give them equipment out of his car, but he wasn‟t at the scene Argues that he wasn‟t guilty of aiding during, didn‟t actually know they were going to murder these two women Can extend willful blindness to this context This is the leading case on willful blindness Willful blindness is distinct from recklessness rec klessness

R v. Jorgenson [1996]    

Stores can‟t be responsible for selling obsene films In this case, wanted to raid a bookstore on yonge street Get a conviction from three of them Goes to SCC, sopinka substitutes acquittal Says that there is a mens rea reqmt, have to show that accused had more then a gen knowledge o of the film as a sex film and were they aware of the particular scenes in the movie

b) Crimes of Objective Fault i) Criminal Negligence, s.219 Criminal negligence 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

R v Tutton and Tutton [1989] (SCC)

Only talk about tutton when have charge of criminal negligence causing death or crim neg causing bodily harm, or manslaughter causing death Facts Charge is manslaughter, charging tutton w/ death of 5yr old son for omitting to providing the necessities necessities of life Issues Held Crim neg defd in CC: invs conduct that has to be a marked departure from the std to be observed by the reasonable reasonable person. Ratio In determining whether the conduct of the accused has shown, within the meaning of the specific section of the Criminal Code in question, wanton disregard for the lives or safety of other persons, the court will used an objective test (or a modified objective test that allows the accused to raise the defence that there is reasonable doubt that a reasonable person would have been aware of the risks of the impugned conduct, as per R. v. Hundal Hundal McIntyre and L‟HL‟H-D: Not a ruthlessly objective test, can‟t be made in made in a vacuum, apply a reasonable person test to the circumstances in which they were Wilson, Dickson, LaForest: Want a softer approach, subjective. Rule Objective mens rea for crim neg – neg – marked marked departure from the objective norm Waite v R?? pg 526

42

Note: The greater the risk created, the easier it is to conclude that a reasonably prudent person would have foreseen the consequences, until the conduct is so foreseeable that it can be deemed intentional, as per R. v. Anderson, [1990] (SCC), pg 527.

ii) Marked Departure Test 

Most objective fault crimes use a marked departure test to see if the accused‟s conduct was a marked departure from the standard of care that a reasonable person would observe in the accused‟s situation ( R. v. Hundal )

R v Hundal [1993] (SCC), pg 531

Leading case (along w/ Beatty) Facts D drove his dump truck through through a red light and killed killed the deceased. D is charged with s. 233 [dangerous driving] of the Criminal Code. Issues Whether there should be an element of subjective fault element for dangerous driving element for offences. Held Appeal dismissed, convicted. Dangerous driving offence should use a modified objective test for fault element element . Ratio This modified objective test allows D to raise defence that there was a reasonable doubt that the reasonable person would have been aware of the risks in the accused‟s conduct. Was gross negligence for driver to overload truck and go through intersection. Rule Modified objective test for fault element. Must be a marked departure from the norm 2 step test: 1) Was there a marked departure from a reasonable std? 2) If so, would a reasonable person in similar circumstances act the same way?

R v Creighton [1993] (SCC), pg 539

Facts

Issues Held Ratio Rule

A injected cocaine into in to deceased‟s body. Convicted of manslaughter at trial. CA upheld conviction. The CL had decided that where the A had committed an unlawful act, objective foreseeability of the risk of bodily harm which is neither trivial not transitory was suffic and foreseeability fore seeability of the risk of death wasn‟t reqd. Does CL defn of unlawful act manslaughter contravene s.7 of Charter? Doesn‟t contravene s.7. (split on whether unlawful act manslaughter is consti) Should foresee symmetry b/w element of fault and the consequences of the offence. Constitutional. If dealing w/ objective fault reqmt, must be marked departure from the norm, can’t take into accnt invid factors except incapacity.

R v B eatty [2008] (SCC), pg 546

Leading case Facts Beatty driving home, suddenly crosses median and kills 3 ppl, not driving erratically beforehand. Don‟t know what what happened, maybe lost consciousness, consciousness, maybe fell asleep. Charged w/ dangerous driving causing death under s.249(4) of CC. Trial ct said not guilty. Overturned on appeal. Issues Held SCC reversed, not guilty. Ratio The law doesn‟t lightly brand someone a criminal. 43

Rule

Here, wasn‟t morally blameworthy, b/c don‟t have a marked departure. Shouldn‟t worry about the consequence, just have to look at the act. Can‟t take into accnt indiv factors except for f or incap w/ objective test. Momentary lapse of attention – attention – got got off

c) Crimes based on Predicate Offences [1992] (SCC), pg 558 [1992] R v Des D esou ousa sa This case abt defining the word unlawful Facts A threw bottle against wall, injured bystander. Charged under s.269 of CC, unlawfully causing bodily harm contrary Issues What is the reqd fault element for predicate offences? Held “Unlawful” in the context of “unlawfully causing bodily harm” reqs at least objectively dangerous. Ratio The ct will use an objective test to det both that the act was lawful, and one that is likely to subject another person to danger of harm or injury that was objectively foreseeable. The unlawful act has to be objectively dangerous (corrects Smithers – kicking kicking someone and causing death) In this case, all you need to foresee is non-trivial bodily harm. Rule Elements of unlawful act causing bodily harm: Actus reus: must have committed an underlying unlawful offence (predicate) AND that offence must have caused the bodily harm Fault: fault for predicate offence & something more from s.269 Predicate offence reqmts: offence under fed/prov statute; can’t be abs be abs liab; must be constitutionally valid Use of the word “unlawful” means tha tit must be at least objectively dangerous: TEST is of objective foresight of bodily harm beyond the trivial and transitory

Criminal Harassment (s. 264) Given that s. 264 contains a sufficiently blameworthy element in the actus reus to which the culpable mental state attaches, foresight of the prohibited consequence of causing actual fear is not required in order to hold the accused responsible for the results of his or her unlawful activity, as per R. v. Krushel (2000), 31 C.R. (5th) 295. Krushel (2000),

Actus reus reus involves: (1) doing the prohibited act; (2) the victim must be harassed by the impugned conduct; and, (3) the resulting fear of the victim must be reasonable, as per R. v. Krushel (2000), 31 C.R. (5th) 295. Krushel (2000),

Fault element involves: (1) intentional harassing conduct; and (2) the accused must know, or be reckless or willfully blind that the victim was being harassed by his conduct, as per R. v. Krushel (2000), 31 C.R. (5th) 295. Krushel (2000), R v Kr ushel ushel (2000) (2000) (Ont CA), pg 574

Facts Issues Held

Charge: s.264(2)(c), criminal harassment. Whether s.264 is unconst, per s.7 of Charter, for failing to req that the A have the intention to cause the victim to fear for f or their safety (the “constructive liab” issue) Because s. 264 contains a suffic blameworthy element in the actus reus to which the culpable mental state attaches, foresight of the prohibited consequence of causing actual fear is not required in order to hold the accused responsible for the results of his or her unlawful activity. Tf, doesn‟t viol s. 7.

Ratio 44

Rule

Normative Theories 

 

Normative test: applies dir to the underlying policy; v descriptive test: specifies identifiable elements that are consis from case to case. Prob w/ norm test: is discretionary, can change from day to day Prob w/ descriptive test: is rigid, may not accur reflect underlying principle or policy in every sitn

Rape and Sexual Assault   





 

Before 1982, had two offences: rape and sexual assault The majority don‟t report sexual assault b/c of distrust in system Sexual victimization of females worse than males, most victims know each other, and till recently, men drafted the laws, were discrim against victims Discriminatory b/c: A has right to remain silent, C takes the stand, under the old laws, 1) C would be xexaminated vigourously, would ask abt prior sexual history (A‟s wasn‟t relev), rape shield laws didn‟t exist; 2) would ask when it was reported, if not reported right away would say that if she had really been raped she would have reported it right away; 3) rule that there had to be corroborations, if only C had testified, could never convict A b/c had to prove there was corrob, couldn‟t rely on sole word of C. S.143 of CC, old crime of rape, had abs immune for man who raped his wife, reqd proof of sexual intercourse. S.143 had no express mens rea reqmt Laws got changed b/c were conc too much on the sex and not on viol, should see it as power imbalance Presently: s.265, 267, 268 of CC, assault; s.271-s.273 of CC, sexual assault Sexual assault provisions trump assault provisions o

Pappaj ohn v R [1980] (SCC), pg 596 (BEFORE new sexual assault laws)

Defence of mistaken belief in consent. Facts A was trying to sell his home, she was a sales woman, went to his house, she says there was rape from the moment they got there, he tied her up, she was u pset and crying, he give diff story, says there was consent, she panicked when he tied her up, convicted of rape at trial, affirmed at CA Issues 1) Reqmt of no express mens rea in the offence; 2) Possibility of a defence of mistaken belief Held Appeal dismissed. Mistaken belief must be honest, but not ness r easonable. No AOR for mistaken belief defence here. Ratio When the accused and the complainant raise diametrically opposed stories about whether there was consent, there must be some evidence beyond the mere assertion by counsel for the accused of belief in consent. The evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality. Majority (McIntyre): To advance the defence of mistake of fact, must be an air of reality to it, not just a differing of stories (5-2), must be supported by other evid beyond mere assertion by counsel (Creates corrob reqmt for A). DISSENT (on the facts, but this is majority judgement) (Dickson): Defence of mistaken belief should avail when there is an honest belief in consent or an abs of knowledge that consent has been w/held. Irrel whether the mistake is rooted in an A‟s mistaken perception or is based upon objective but incorr facts confided to him by another (6-1). (Note: becomes difficult to win on this defence) Rule Defence of mistaken belief should avail when there is an honest belief in consent 45

or an abs of knowledge that consent has been w/held. Mistaken belief must be honest, but not ness reasonable. Must be evid to show A took reasonable steps to ensure he had consent. *No rebuttable presumption of mens rea (REVERSES Kundeus ), pg299T

Sansr egr et v R [1985] (SCC), pg 609 (AFTER new laws, but began when old in force )

Facts

Issues Held

Ratio

Rule

A sexually assaulted a woman twice, although the woman only consented out of fear. She complained to the police the first time, and A became aware of it through his parole officer. During the second assault, A claimed he thought the consent was valid, despite the fact it was clearly induced by fear of further harm. Application of defence of mistake of fact in rape case (mistaken belief) Appeal denied, conviction upheld. The A could not have formed an honest belief in consent, based on the fact that he knew the victim had complained to the police about his earlier sexual assault. Where the A asserts an honest belief in consent, the honest belief must encompass more than the fact of consent. It must incl a belief that it has been freely given and not procured by threats. Applies Pappajohn (must have mens r ea, honest belief will get you off, intentional recklessness meets mens rea reqmt), BUT extends it to willful blindness: defence can‟t op where the A is delib ignor as a result of blinding himself to reality the law presumes knowledge (in this case knowledge of the nature of the consent). Note: didn‟t go w/ finding of fact, A honestly believed she was consenting, if applying subjective approach, should get off. Honest belief will get you off, intentional recklessness meets mens rea reqmt, BUT no defence where A is delib ignor as a result of blinding himself to reality the law presumes knowledge.

Crimes of Sexual Assault (new laws) (1983)

old structure:    

assault 1) s.266, assault, max crime 5 yrs, or 6 mos (summary conviction) 2) assault causing bodily harm (cbh) or w/ weapon, max 10 yrs, or 18 mos (sc), s 267 3) aggravated assault, s.268, max life

new:    

s. 271 is sexual assault, max is 10 yrs or 18 mos summary conviction s. 272, sexual assault cbh or w/ weapon, max 14 yrs, 4 yrs min firearm s.273, agg sexual assault, max life corresponding to tier 1, 2, 3 advantage to 3 tiers is its not gender specific, its neutral – spousal immun gone, have restrictions on o x-examination (rape shield laws), don‟t have a doctrine of recent complaint anymore, can‟t ask the C when she reported, no corrob reqmt

Note: for policy issues arising out of sexual assault, shouldn‟t just think abt old crime of rape, think abt all sexual actions. R v Chase [ 1987] ( SCC), pg 661

46

Facts

Issues Held Ratio

Rule

A entered C‟s home w/out invitn, seized complainant around shoulders and arms, grabbed breasts. Charge: sexual assault, found guilty. CA: dismissed, guilty of common assault. What is defn of offence of sexual assault? (Is it gen or specific intent offence). Guilty of SEXUAL assault. TEST for recog of SA doesn‟t dep solely on contact w/ specific areas of the human anatomy. Objective test – “viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?” Pts of the body touched, nature of the contact, sitn, words and gestures used and all other circumstances (v open) are relev in the objective test. This is a GENERAL intent crime. SA can be an attack by a member upon the same sex. TEST for recog of SA doesn’t dep solely on contact w/ specific areas of the human anatomy. TEST for recog of SA should be objective.

R v Bul mer [ 1987] (SCC), pg 624

Facts

Issues Held

Ratio Rule

Prostitute agreed to provide services to A, went to hotel room, discovered the other two A‟s, told them to leave, left then came back, frightened, she performed sexual acts w/ all three, she denied consent and receiving payment. A said complainant had consented. Trial: L and I guilty of rape. B acquitted of rape, conv of indecent assault (used honest but mistaken belief defence). CA dismissed appeals. There was evidence of the mistake defence but ordered a new trial on basis that the trial judge had wrongly instructed that the belief had to be both honest and reasonable. The belief, if honestly held, need not be based on reasonable grounds. Used air of reality test from Pappajohn: A‟s belief must be honest but need not be reasonable. (Is a SUBJECTIVE test for honest belief). Belief can be unreasonable as long as its an honest subjective belief – the presence or abs of reasonable grounds for the belief relev to det issue of honesty

R v Davi s [1999] (SCC), pg 629

LEADING CASE on air of reality defence. Facts Issues Held Ratio Defence of honest but mistaken belief in consent is simply a denial of the mens rea of SA (Ewanchuk, Pappajohn). The actus reus of SA reqs touching of a sexual nature (OBJECTIVE test), w/out the concent of the C. Mens rea reqs the A to intend the touching and to know of, or to be reckless or willfully blind as to the C‟s lack of consent (SUBJECTIVE test) (Ewanchuk). If the A honestly believes the C consented to the sexual touching (mistaken belief), the actus reus is estab but mens rea isn‟t. Before the defence of honest but mistaken belief can be considered , there must be suffic evid for a reasonable trier of fact to conclude: 1) the complainant didn‟t consent to the sexual touching, and 2) the accused nevertheless honestly but mistakenly believed that the complainant consented (Osolin) (must be possible to conclude that the actus reus was made out but the mens rea isn‟t) in these circumstances the defence is said to have an “aire of reality”, and the  





47

trier of fact must consider it BUT if no “air of reality” then the defence shouldn‟t be considered as no reasonable trier of fact could acquit on that basis (Park) Determining whether there is an air of reality: Consider totality of the evidence Judge should “make no attempt to weight the evidence”, sole concern w/ “facial probability of the defence”, judge should “avoid the risk of turning the air of reality test into a substantive evaluation of the merits of the defence” (Ewanchuk) Above is evidence of a belief in consent, it isn‟t sufficient evidence of an “ honest but mistaken” belief in consent. SA gen not commited by accident. The A‟s mere assertion that the complainant consented isn‟t enough to raise the defence, but the requisite evidence can come from the A, it may also come from the complainant, other sources or a combination No air of reality where the evidence shows that the A was recklessly or willfully blind as to whether the complainant consented (here the A has subjectively adverted to the absence of consent, and tf can‟t have an honest but mistaken belief that the complainant consented) No air of reality when the A is reckless or willfully blind as to consent. Must be evid of a sitn of ambig in which A could honestly have misapprehended that the C was consenting to the SA in question. 

 

Rule

Rape Shield Laws: R v Seaboyer ; R v Gayme [1991] (SCC), pg 635

Facts

Issues Held

Ratio

Rape shield provisions inserted into CC in 83, s.276 and 277 challenged as unconst. Provisions restrict the right of the defence on the trial for a sexual assault to xexamine and lead evidence of a C‟s sexual conduct on other occasions. Do the rape shield provisions offend an A‟ s guarantees under the Charter? S.276 dealing w/ evidence of the complainants sexual activity as referable to the issue of consent was declared unconstitutional. S.277 dealing w/ evidence of the complainants sexual activity as referable to the credibility of the complainant was declared constitutional. Majority (McLachlin): s.277: C‟s credibility has no link to whether she is a truthful witness, tf by limiting the exclusion to a purpose which is clearly illegitimate, doesn‟t touch evidence which may be tendered for valid purposes and thus doesn‟t restrict the right to a fair trial. S.276 on the other hand excludes evidence that may be relevant. S.276 overbroad. Unfair to the A. Must balance the probative value of the evidence and its potential prejudice w/ regards to s.276. Once struck down, afraid to leave it up to judges, so came up w/ guidelines (pg 643). DISSENT (L‟H-D): No charter viol, & any viol could have been saved by s.1.

Rule

New Legislation, Bill C-49 (1992) a) Rape Shield 

in response to Seaboyer, minister of justice, the honourable Kim Campbell, initiated new legislation, along w/ about 60 womens groups, they reached consensus and passed new s.276 that conformed almost exactly to the limits set by J mclachlin for the majority in Seaboyer 48

Evidence of complainant‟s sexual activity 276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief. Idem (2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Factors that judge must consider (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society‟s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d ) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; ( f ) the potential prejudice to the complainant‟s personal dignity and right of privacy; ( g ) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.

R v Darr ach [2000] (SCC), pg 653.

Facts


A charged w/ SA, at trial, tried to introduce evidence of the C‟s sexual history. Unsuccessfully challenged the constitutionality of s.276.1(2)(a) of the C C (which reqs that the affidavit contain detailed particulars of the e vid), s.276.1 and 276.2(c) (which govern the admissibility of sexual conduct evid generally) and s.276.2(2) (which provide that the C is not a compellable witness at the hearing determining the admissibility of evidence of prior sexual activity). After the voir dire, the trial judge refused to allow A to adduce the evidence of the C‟s sexual history. Trial: A convicted. CA: dismissed appeal, impugned provisions didn‟t viol the A‟s right to make full answer and defence, his right not to be compelled to testify against himself or his right to a fair trial as protected by s.7, 11(c) and 11(d). Appeal dismissed, provisions are constitutional. TEST for admissibility of evidence in s.276(2) requires not only that the evidence be relevant but also that it be more probative than prejudicial. 49

b) Consent  

s.273.1 attempts to define consent in the case of SA, but isn‟t exhaustive The provisions attempt to give cts guidance as to sitns in which consent can be held to have been not genuine and tf not consent in law

Meaning of “consent” 273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Where no consent obtained (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d ) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 2(a) someone else can‟t consent for another person 2(c) eg I‟ll give you a job if you sleep w/ me – is an abuse of authority “by words or conduct” – 2(d) doesn‟t have to be words, conduct counts 2(e) can consent then w/draw it *these are special rules applying only to assault, if it were ph ysical assault, they wouldn‟t apply     

c) Mistaken Belief in Consent 

under s.273.2, belief in consent isn‟t a defence where the belief arose from the accuseds self induced intoxication or willful blindness or recklessness

Where belief in consent not a defence 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused‟s belief arose from the accused‟s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

R v Ewanchuk [1999] (SCC), pg 660 LEADING CASE ON SEXUAL ASSAULT

No “implied consent” defence. Facts A initiated a number of touching incidents, each progressively more intimate although the complainant clearly said “no” on each occxasion. The A argued that there was “implied consent”, based on the victim‟s failure to leave the situation. Trial: acquitted b/c although C‟s evid was credible and he believed she didn‟t consent, her failure to communicate her fear projected a relaxed and unafraid visage, 50

Issues Held Ratio

Rule

tf crown hadn‟t proven abs of consent BARD. CA: dismissed appeal. Is there a defence of “implied consent”? Appeal allowed, A convicted. No defence of implied consent, and also det that the actus reus for SA is det by a hybrid objective-subjective test. C‟s fear: to be legally effective, consent must be freely given. To deem abs of consent, trier of fact has to find that the C didn‟t want to be sexually touched and made her decision to permit or participate in sexual activity as a result of honestly held fear (s.265(3)). Fear need not be reasonable and doesn‟t have to be communicated. DISSENT (L‟H-D): Rejects notion of implied consent. Until an A takes reasonable steps to ensure there is consent, the defence of honest but mistaken belief doesn‟t arise. 5 Ewanchuk Limits on honest but mistaken belief: 1) In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – “consent” means that the C had affirmatively communicated by words of conduct her agreement to engage in sexual activity w/ the A. (most impt lim) 2) Not all beliefs upon which an A might rely will exculpate him. Consent in reln to mens rea of the A is lim by CL and s.273.1(2) and s.273.2 of CC. 3) A belief that silence, passivity or ambig conduct constitutes consent is a mistake of law, and provides no defence 4) An A can’t rely on his purported belief that the C’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. Can’t say thought “no meant yes”. 5) Continuing sexual contact after someone has said “no” is at a min, reckless conduct which isn’t excusable.

R v Cor nejo ( 2003) ( Ont CA, l eave to appeal, SCC, r ef used), pg 675

Facts

Issues Held Ratio

Rule

A charged w/ SA(party earlier in the evening, accused called C 3x, came over after “mmm-hmmm” response, C was sleeping, refused, undressed her, when she realized he was there (woke up), she refused more strongly. Trial: acquitted. Crown appealed saying trial judge erred in leaving defence of honest but mistaken belief in consent to jury when there was no AOR to def. Appeal allowed, set aside acquittals, new trial ordered. A ought to have taken steps before he engaged in any sexual activity to ascertain whether she was consenting. Test is whether there is evid on the record upon which a properly instructed jury acting reasonably could acquit (Cinous). Defence of honest but mistaken belief in consent reqs 2 elements: 1) that the A honestly believed the C consented; and 2) that the A have been mistaken in this belief” (R v Livermore) Duty to take reasonable steps before engaging in any sexual activity to ascertain whether she was consenting.

Charter Arguments

There are at least four possible Charter challenges to Bill C-49's substantive regime. 1. Section 273.2's exclusion on any intoxication defence imposes abs liab which threatens lib interest. (agmt still ongoing – but if law were otherwise, womens interests would be threatened) 51

2. Sexual assault is one of those few offences requiring a minimum degree of mens rea in the form of subjective foresight. 3. The duty to take reasonable steps in s. 273.2 is an objective standard which is unconstitutional because the legislation does not require a marked departure from the objective nom. 4. Section 273.2 is unconstitutional because it violates the constitutional principle that those causing harm intentionally must be punished more severely than those causing harm unintentionally.

R v Darr ach (1998) (Ont CA, aff’d [2000] SCC) – Ont CA judgement in this chart

Facts Held

Constitutional challenge to s.273.2(b). Rape shield legislation upheld as constit valid. Ont CA not satisfied that SA is one of those “v few” offences that carries such a stigma that its means rea componment must be subjective. Despite this, decided that of the offence of SA carries suffic stigma to req a subjective fault reqmt on the pt of the A. Although the offence can be regarded as introducing an objective component into the mental element of the offence, it is a modified one. It is personalized according to the subjective awareness of the A at the time. The A is to “take all reasonable steps, i n th e cir cumstances , to ascertain that the C was consenting”. known to th e A at the time The A isn’t under an oblig to det all the relev circumstances – the issue is what he actually knew, not what he ought to have known. Evidence of sexual activity can be permitted for its non-sexual features, such as to show a pattern of conduct or a prior inconsis statement.

Mistake of Fact, pg 691

(a) General Principles -

Pappajohn leading decision on whether mistake of fact is a defence Mistake of fact defence constitutes a denial that the crown has proved the fault element o In the absence of statutory wording to the contrary: o 1) when subjective mens rea reqmt, the mistake need merely be honestly held w/  reasonableness only relev to assessment of credibility (Pappajohn, Beaver (drugs)) 2) where fault element reqs objective negligence, the mistake must be both honest and  reasonable 3) where there is a due diligence defence, mistake must be both honest and  reasonable, w/ an onus of proof on the accused in the case of regulatory offences 4) where the offence is one of absolute liab, mistake of fact isn‟t a defence  This could lead to const challenge (Hess) 

**see crim robinson_stuart1_2010 pg 26 for exam approach** R v H ess; R v N guyen [1990] (SCC), pg 692

LEADING CASE Facts H and N both charged w/ sexual intercourse w/ a female under 14 under s.146(1) of the CC (Since repealed). H : trial, quashed conviction on ground that s. viol s.15 of the charter, CA reversed the decision and ordered new trial : trial, convicted, CA, conviction upheld, found no viol of s.15 and even though s. N of CC viol s.7 of charter, it was justified under s.1 Issues Are charged w/ stat rape if you have sex w/ someone under 14, regardless of whether the A had an honest belief the child was over 14. Tf this is an abs liab offence w/ no mistake of fact defence allowed. Held 5-2, infringes. S.7 and isn‟t saved under s.1 (fails propor stage), tf unconst (Deterrance agmt failed, to deter a lot of ppl would have to know abt the provision, 52

Ratio

Rule

Note

would only protect a small subset of girls under 14 that look older. Punishing the mentally innocent to advance certain objectives is fund unfair). Doesn‟t infringe s.15 Majority (Wilson): Although there was a pressing and substantial concern to address harm that may result to female children from premature sexual intercourse and preg, BUT that abs liab didn‟t meet the propor test esp since parl had already enacted a new scheme that allowed the DD defence. DISSENT (McLachlin): Abs liab didn‟t extend beyond wha t was reasonably ness. The alts of the offences of DD or reasonable belief wouldn‟t provide as effective a deterrent. Denial of mistaken belief defence unconst for offences w/ const guaranteed fault reqmts. Although DD defence is less intrusive, this question still open (see Darrach )

c) As to nature of offence -

What if A thinks he is commiting one offence but is actually committing another? : if the A he is commiting one offence, can that mens rea be transf to another offence? – UK Case Tolson ( ) defence only allowed here if on the A‟s view he was innocent Beaver : says that you can‟t be guilty w/out knowledge of the character or substance Later on this is carried thorugh w/ Blondin – if you think you are doing something illegal, then o can‟t be guilty of the drug offence, b/c have to know its illegal (asks if the mistake rels to the essence (essential elements) of the offence) o Beaver : mistake only has to be honest and the existence or non-existence of reasonable grounds for such belief is merely releve evid to be weighed by the tribunal of fact o Beaver : often generalized and cts have held that a merely honest mistake will excuse in all mens rea offences (OVERRULED by Pappajohn : subjective MR – belief only needs to be honestly held; objective MR (or DD def), mistake must be both honest and reasonable)

R v L adue [1965] (Yukon CA), pg 703

Facts Issues

Held Ratio

Rule

Ladue either copulated or attempted to copulate w/ a dead woman, convicted at trial under s.167(b) (now s.182(b) of CC) Whether the trial judge was right in holding that it wasn‟t open to the appellant to contend that he wasn‟t guilty b/c he didn‟t know the woman was dead (Ladue was so intox that he didn‟t know she was dead). Appeal dismissed An intention to commit a crime, although not the precise crime charged, will provide the ness mens rea. This is applic of Tolson, Ladue had intent for rape, but she was already dead (offence to have sex w/ dead person)  suffic to consti intent for this crime. Fund principle of crim law that unless excluded by statute, mens rea, is ness to constitute a crime, a person doing an act isn‟t guilty if his mind is innocent. The woman was unconc and tf couldn‟t have consented regardless, tf trial judge wsa right in saying that he wouldn‟t entertain agmt that the A was innoc b/c he didn‟t know the woman was dead (defence was he didn‟t know she was already dead, but if so, then would have been raping her, tf not getting off) An intention to commit a crime, although not the precise crime charged, will provide the ness mens rea.

53

R v Ku ndeus [ 1976] (SCC), pg 703

Facts

Issues Held Ratio

Rule

Note

A charged w/ unlawfully trafficking LSD (acid) contrary to provisions of Food and Drugs Act, cop asked for hash or acid, A said he was out but offered mescaline, cop accepted, substance sold as mescaline was analysed to be LSD, A didn‟t know it was LSD. Convicted at trial, set aside at CA. Was CA right in holding that the ness mens rea hadn‟t been proved? Appeal allowed, restore trial judgment. Majority (De Grandpre): Not possible to find that the A had an honest belief amting to a non-existence of mens rea and the CA was in error in its concl. Recall: R v Blondin – it was suffic to find, in reln to a narcotic, mens rea in its widest sense. DISSENT (Laskin): Doesn‟t agree that when mens rea is an element of an offence, as it is here, it can be satisfied by proof of its existence in reln to another offence unless the sitn involves an included offence of which the accused may be found guilty on his trial of the offence charged. To prove guilt for drug offences, it need not be shown that the A intended to traffic the actual drug, but only that they intended to traffic a narcotic; need only mens rea in its widest sense (if you are selling one drug and it turns out to be another, no defence). (Mens rea can be transferred) NOTE: Pappajohn reverses this (1980), where mistaken belief need only be honest but not reasonable. No more rebutable presumption of MR) Rule based on policy agmt that there are many white powder drugs, and if we reqd mens rea to the partic kind of drug, it would make it too easy for the A to say he erred as to what type of drug it was due to their similar appearance. This agmt may not hold up when comparing mj to cocaine, etc eg. Fault for drug offences: all req subjective mens rea ( Beaver , but now in pts of CC), can be extended to willful blindness or recklessness. Mistake as to which drug it was won‟t work ( Kundeus ).

Mistake of Law, pg 711

Inflexible rule, s.19 of CC: Ignorance of the law 19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. Policy Considerations:  





Don‟t want society to be lawless Impossible for everyone to know the law, but its impractical for everyone to get off b/c they don‟t know the law If it was an excuse, then it would have abt proving someones knowledge of the law, attn would divert to did the A know the law? Notion is that everyone knows the big crimes, roughly speaking

Note: doesn‟t matter if you were told by someone in posn of authority what the law was and they were wrong – unless its officially induced error & meets Levis reqmts. (1836), 173 ER 203 R v Esop 54

chambers for the prisoner wasn‟t an offence in his own country a person who comes into England and does an act that he believes is innocent can‟t be found guilty a party must know what he does is a crime found not guilty Rule That is was not an offence in his native country was held to be no defence.  

 

R v Campbell and Ml ynarchuk (1972) (Alta Dist Ct)

Facts

Issues Held Ratio

A unlawfully took part as a performer in an immoral performance at Chez Pierres in Edmonton. Charged w/ s.163(2) (now 167(2)) of the CC. Earlier A had refused to do the performance, but after she was given evidence from Pierre couchard that a supreme ct judge said that they “ruled we could go ahead w/ bottomless dancing”, so went ahead w/ it. Is mistake of law a defence? What abt when relying on solicitors opinion? Mistake of law is no defence. Gave absolute discharge. mistake of fact is a defence to a crim charge where it c an be said that the facts believed by the accused, if true, would have afforded him a defence; mistake of mixed fact and law is also a defence here though, her mistake was concluding that a statement of law from Pierre couchard was the law, this isn‟t a mistake of fact, it‟s a mistake of law. In some sitns, mistake of law can be a defence, Mistake of law can negative a malicious intent reqd for the crime, only when the law requires that a person knowingly, or maliciously or willfully does something Here there is no such reqmt, the only mens rea reqd here is that the appellant intended to do what she did S.19 of CC holds that mistake of law is no defence Removing mistake of law is a policy matter o There will always be sitns where honest and reasonable mistakes as to the state of the law will be the explanation of the conduct of the accused, but normally this can‟t be a defence b/c the 1 st reqmt of a legal sys is that it work efficiently and effectively, if the state of understanding of the law of an accused is relev, the trial would be absurd o Tf defence can‟t be allowed as a matter of public policy Mistake of law affords no defence. Although mistake of law still is no defence, on the facts, this case may have falled under officially induced error exception ( Levis ) Also, the decision that was relied on in Campbell (Johnson case, trial decision), that was overturned on appeal (reason why Campbell was charged), was again reversed at SCC, tf the info Campbell relied on wasn‟t wrong. 







 

Rule Note

b) Distinguishing Mistake of Law and Fact R v Pru e; R v Bari l [1979] (SCC), pg 719

Facts

The two A‟s suffered automatic suspensions of their drivers licenses, afterwards they drove motor vehicles and were charged under s.238(3) of CC. Neither accused knew licence was suspended. Trial: convicted. Convictions set aside, found that proof of mens rea was essential to a conviction of an offence under s.238(3). CA: affirmed acquittal, said it was a mistake of fact. 55

Issues Held Ratio

Rule

Note

Was it a mistake of law or fact? Appeal dismissed; S.238(3) reqs mens rea. A not convicted. Mistake of fact. Majority (Laskin): Distinction b/w true criminal offence and public welfare offence is in crim, the crown must establish a mental element, namely that the accused who commited the act did so intentionally or recklessly, w/ knowledge of the facts constituting the offence, or w/ willful blindness towards them. Whether there had been an effective suspension was a question of fact. DISSENT (Ritchie): Mistakes by the accused is a mistake as to the legal consequences of a conviction under s.236 of CC, mistake founded in ignorance of the law, tf, have s.19 of CC which says that ignorance of the law is not an excuse. Distinction b/w mistake of fact and mistake of law turns on whether the A is mistaken as to a fact underlying the invocation of a crim provision vs ignorance of the legal provision itself (l aw ). Prue could be basis of const attack on the inflexible rule in s19 denying fund principles of justice under s.7.

c) Colour of Right for Property Offences Requirements of the COR Defence:   

There must be a mistake rather than simple ignorance, inadvertence rather than not thinking at all The belief must be as to a legal rather than moral right ( Drainville ). The mistake must be honest and not ness reasonable ( Dorosh ).

R v Dorosh (2004) (Sask CA), pg 723

Colour of right defence succeeded. Facts A charged w/ stealing a trailer contrary to s.334(b) of CC. Convicted by provincial ct. Appealed conviction to Ct of Queens Bench pursuant to s.813 of CC, appeal dismissed. Issues Whether the trial judge erred in interp phrase “w/out colour of right”, s.322 cc Held Appeal allowed, direct new trial. Ratio Actus reus of offence invs A taking the trailer. Mens rea more difficult. Term “colour of right” refs to sitn where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft, one who is honestly asserting what he believes to be an honest claim can‟t be said to be acting w/out colour of right, even though it may be unfounded in law or in fact. Colour of right also used to denote an honest belief in a state of facts, which if it actually existed would at law justify or excuse the act done. Colour of right can have its basis in either a mistake of civil law, or in a mistake in a right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which it is actually existed would at law justify or excuse the act done. Rule Honest belief in a legal right is enough, it doesn’t have to be reasonable. Note 2 exceptions to rule that ignorance of the law is no excuse: 1) Colour of right defence (only in property cases, doesn‟t apply to protestors) 2) Officially induced error of law

R v Dr ainvill e (1991) (Ont Prov Div), pg 727

Colour of right defence failed. Facts A charged under s.430(1)(c) of CC. Had blocked parcel of land to protect constuction 56

Issues Held Ratio

Rule

Note

of a road, believed the abor rights should prevail despite province having title. Can belief in a moral claim of right constitute a defence of colour of right? Guilty Civil disobediance can‟t be condoned, but those who wish to resort to it are free to do so but must also suffer the conseqs. Tf can‟t use it as a defence. Colour of right: an honest belief in the existence of a state of facts which if it actually existed, would at law justify or excuse the act done. Whether its an honest belief is a subjective test (couldn‟t have had an honest belief of whether abors had title using an objective test). Distinction b/w honest belief in a moral as opposed to legal or lawful right: in Ont, an honest belief in a moral can‟t constitute a COR defence, but legal right can. Moral convictions, though deeply and honestly held, can‟t transform illeg actions into legal ones, only the rule of law must prevail. Belief in a moral claim of right can’t constitute a defence of colour of right. Defence must fail. This issue has arisen in Kingston w/ the shutting down of the prison farms.

d) Officially induced error of law L evis (City) v Teteaul t; L evis (City) v 2629-4470 QC I nc [2006] (SCC), pg 733

LEADING CASE on reading into a provincial offence (the due diligence defence) Facts T charged w/ driving w/out a valid licence contrary to s.93.1 Raised defence of due diligence, thought date was payment date not expiration date Numbered company charged w/ operating a motor vehicle for which the registration fees hadn‟t been paid contrary to s.31.1 Raised defence of due diligence and officially induced error Municipal ct of city found that both offences were strict liab, defences of due diligence accepted and A‟s acquitted Issues Held Offences were strict liab, but held that defence of DD hadn‟t been estab. A‟s had remained passive rather than attempting to discover nature of their legal oblig to pay. Appeal allowed, convictions entered, imposed min fines. Ratio For defence of officially induced error, must prove 6 elements: 1) That an error of law or of mixed law and fact was made; 2) That the person who committed the act consid the legal conseq of his or her actions; 3) That the advice obtained came from an approp official; 4) That the advice was reasonable; 5) That the advice was erroneous (containing or characterized by error); and 6) That the person relied on the advice in committing the act. Have to be active if want to claim DD, onus on you to prove you took DD, can‟t be passive. This applies to both crimes and reg offences. Rule Defence of officially induced error of law is available for any offence where fault is reqd. 

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Incapacity

1) Age  

in 1982 the age of criminal responsibility was raised from 7 to 12 yrs, s.13 of cc young offenders act governs trials of all children over the age of 12 but under 18 57

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young offenders act was replaced by the youth criminal justice act assume the substantive law principles we are exploring apply equally in youth ct R v B (D), SCC recog new principle of fundamental justice that young ppl who engage in crim conduct should be presumed to have less moral blameworthiness and culpability than adults Majority constitutionalized a presumption of lower sentences for young offenders o

Child under twelve 13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. 2. Insanity (mental disorder) a) Psychiatric Classification: Limited Truths  

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diagram, pg 742 DSM-IV, divides mental disorder into inter alia, “mental retardation”, psychoses, “anxiety disorders” and “personality disorders” There is no assumption that each categ is discrete w/ absolute boundaries dividing it from other o mental disorders or from no mental disorder Psychopath: guiltlessness and lovelessness conspicuously distinguish them from other men Personality disorder charac by disregard for social oblig, lack of feeling for others, and impetuous violence or callous unconcern, gross disparity b/w behaviour and the prevailing social norms Conduct disorders def: involving repetivitive and persistant patterns of violations of social norms falling into 4 categ: aggression to ppl and animals, destruction of property, deceitfulness or theft and serious violation of rules “phychopathic syndrome” label, appears to be a ragbad description of a persistent recidivist who carries on commiting crimes for no apparent reason, label tells us nothing abt causation, prognosis, or treatment, changing the label won‟t fix these critisisms o lawyers should request that psychiatrists be as precise as possible in their descriptions of the actual behaviour of the indiv before the ct rather than hide behind imperfect abstractions descriptions are too imprecise for use as legal criteria of responsibility o the issue of legal insanity must be decided by the jury and judge, its most impt that they look at all the evidence carefully, vigourous examination and cross examination are ness see notes, Feb 9, 2011

b) Mental Disorder under CC Defence of mental disorder 16. (1) No person is criminally responsible for an act committed or a n omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. Burden of proof (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. S.16 was a Cdn version of the M‟Naghten rules 

Cooper v R [1980] (SCC)

LEADING CASE on how to interpret “disease of the mind” & LEADING CASE on what it means to be incapable of apprec the nature and quality of the act. 58

Facts Issues

Held Ratio

Rule

A charged w/ murder of a patient at a psych hospital. Trial: defence of insanity not raised by A but trial judge put it to the jury. CA: appeal dismissed Whether there was evidence that the A had a disease of the mind that would render him incapable of appreciating the nature and quality of the act, or of knowing that it was legally wrong. Appeal allowed. There was evid suffic to req the judge to fully instruct the jury on the issue of insanity, judge was of opinion that issue should go to jury. The term “knowing” in s.16 means that the accused has an “appreciation” of the emotional and intellectual characteristics of his act and the mental capacity to measure and foresee the consequences of it. The test of appreciation embraces “emotional as well as intellectual, awareness of the significance of the conduct” The Crown may only raise the issue of mental disorder once the A has been found guilty of the offence. The question of “disease of the mind” is to be decided by the judge based on evidence at trial. If psychiatric evidence indicates that an accused has a legally recognized disease of the mind (judge must decide), A may raise the defence, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the crim act was committed, & whether the A was incapable at the time. “Disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its fning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. TEST: Was the A person at the very time of the offence – not before or after – by reason of disease of the mind, unable to appreciate not only the nature of the act, but the natural conseq that would flow from it?

Kj el dson v R [1981] (SCC), pg 762

Ratio

Here doesn‟t believe the psychiatric evidence to be such that the accused was by reason of emotional turmoil produced by disease of the mind incapable of understanding or realizing what he was doing, but rather that he lacked normal emotions and was therefore incapable of experiencing normal feelings concerning the acts assuming he commited them Exemption provided by 16(2) doesn‟t extend to one who has the nessessary understanding of the nature, character and conseq of the act but merely lacks approp feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feelings stems from “disease of the mind” Appreciation of the nature and quality of the act doesn‟t import a reqmt that the act be accompanied by approp feelings abt the effect of the act on other ppl; absense of feelings is a common characteristic of many who engage in serious criminal conduct Psychopathy was a disease of the mind w/in meaning of s.16 of CC. Failure to “appreciate” the nature and quality of the act doesn’t apply to one who has the ness understanding of the nature, character and conseq of the act, but merely lacks approp feelings for the victim or lacts feelings of remorse or guilt for what he has done **B/c of this case, v diff for an A to successfully raise defence of insanity if his only disease of the mind is psychopathy** 

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

Rule

R v Abbey [1982] (SCC), pg 763

Facts

A charged w/ importing cocaine and unlawfully possessing it for the purpose of 59

trafficking. Raised insanity in defence. Psych evid suggests he suffers a disease of the mind, doesn‟t render him incap of apprec the nature and quality of the act, but invs a delusional belief that he was committed to a course of action, no harm would come to him and he wouldn‟t be punished. Trial: acquitted by reason of insanity w/in 16(2) b/c failed to apprec PENAL conseq of the act (ERROR). Issues Held Ratio

Rule

Order new trial Cooper: the reqmt that the accused be able to perceive the conseq of a physical act is a restatement, specific to the defence of insanity, of the principle of mens rea or intention, and is a requisite element in the commission of a crime Punishment may be a result of the commission of a crime, it isn‟t an element of the crime itself Delusion which makes an accused incapable of appreciating the nature and quality of his act, goes to the mens rea of the offence and brings into operation the “first arm” of 16(2): he isn‟t guilty by reason of insanity; delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of the crime ar e applicable to him doesn‟t go to mens rea, tf cant‟ use defence of insanity It was his intention to import cocaine for the purposes of trafficking, he appreciated the actus reus Second arm of 16(2) Schwartz case: “wrong” means wrong according to the law (**note: o this was overruled in Chaulk**) Abbey knew his act was wrong, tf his inability to appreciate the o penal conseq is irrel to the question of legal insanity Delusion which makes an accused incapable of appreciating the nature and quality of his act, goes to the mens rea of the offence and brings into operation the “first arm” of 16(2): he isn’t guilty by reason of insanity. A delusion which renders an accused incapable of appreciating that the penal sancti ons attaching to the commission of the crime are applicable to him doesn’t go to mens rea since punishment was not an element of the offence itself , tf cant’ use defence of insanity.

R v Chaulk [1990] (SCC), pg 765

OVERRULES SCWARTZ!! (Didn’t actually cover Scwartz??) Ratio Inquiry can‟t terminate w/ the discovery that the accused knew the act was contrary to the formal law, person may know an act is contrary to law, but as the same time be incapable of knowing that the act is morally wrong according to moral stds of society – in this case, accused should be entitled to by acquitted by reason of insanity Essential that the accused know that they ought not to do the act in question, this condition is met if the accused knows that the act is legally wrong Prob w/ making capacity to appreciate moral wrong the test for crim responsibility where the incapacity is caused by mental illness is that of det what societys moral judgment will be in every sitn Rule Wrong means more than legally wrong – wrong means morally wrong. TEST (M’Naghten one): whether the A for whatever reason, was incap of apprec that his or her act was wrong. Note New chaulk test used in Oommen [1995], SCC confirmed that under s.16(2), a person who lacks capacity to know that the act he is commiting is wrong is exempt from crim responsibility, the inquiry is to focus not on general capacity to know right from wrong, but rather on the ability to know that a particular act 

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60

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was wrong in the circumstances Question is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice abt whether or not to do it facts: accused shot and killed, w/out apparent motive, female friend, o he suffered from mental disorder and at the time, thought that members of a local union had conspired to “destroy” him and they have had given a commission to the victim to kill him

c) mental disorder negativing mens rea [1991] SCR, evidence of mental impairment short of insanity negativing the requisite mental element R v Swain includes for eg, planning and deliberation in the case of first degree murder, or the specific intent reqd for murder (obiter in Swain , but accepted in Jacquard (1997) SCC) 2. Automatism R v Rabey (1977) (Ont CA), pg 769 (Went to SCC but CA judgment was adopted)

(Geo student hits girl w/ rock) Facts Rabey and miss x were friends, rabey was emotionally attached to X but feelings weren‟t reciprocated, X wrote letter to friend telling abt a person she liked (not rabey), rabey found letter, went w/ x to squash cts, in stairwell, after asking her what she thought of him (response was: as a friend), respondent struck her on the head 2x, and choked her, respondent doesn‟t remember pts of the incident. Charge: causing bodily harm w/ intent to wound and possessing a weapon for the purpose of committing an offence (gets off the second charge at every level – there is never mens rea for having a weapon for attempting to attack). Issues Held Ratio Dissociative state is an occurrence, isn‟t a mental illness and isn‟t a “disease of the mind”. Entry into dissoc state triggered by powerful emotional shock. Not likely to reoccur. Recog that there might be more extreme shocks. Rule

R v Rabey [1980] (SCC), pg 774

Issues Held Ratio

Whether automatism resulting from a “psychological blow” is available to an A in answer to a charge of causing bodily harm w/ intent to wound? Ordered new trial to see if he had the defence of insanity. (Appeal dismissed) Majority (Ritchie): Automatism def from r v K (1971) 3 CCC (3d) 84: term used to describe unconscious, invol behaviour, the state of a person who, though capable of action, isn‟t conscious of what he is doing, it means an uncon, invol act, where the mind doesn‟t go w/ what is being done. Here its said that the respondent was in a state where capable of action, wasn‟t conscious of what he was doing, and that he wasn‟t suffering from a disease of the mind. Central question in cases inv defence of automatism: whether the accused was suffering from a disease of the mind. Whether or not such a state amounts to a disease of the mind is a question of law for the judge to decide (judge decides what constitutes a disease of the mind, triers of fact det whether or not the facts in a given case disclose the existence of such a disease) DISSENT (Dickson): defence of automatism is somewhat akin to that of insanity, in 61

Rule

both cases, the issue is whether an accused had sufficient ctrl over or knowledge of his crim act to be held culpable, but the 2 defences are sep and distinct, diff being that in insanity, the defect of the understanding must originate in a disease of the mind, whereas in defence of automatism simpliciter the crim law is not concerned w/ any question of disease of the mind (this isn‟t just DISSENT position). Dickson can‟t accept notion that an extraord external event (intense emotional shock), can cause state of dissoc or automatism if and only if all other normal persons subjected to that sort of shock would react in that way – in all other aspects of the crim law, the inq is dir to the A‟s actual state of mind, it is his subjective mental condition w/ whic h the law is conc – the fact that other ppl wouldn‟t have reacted as he did shouldn‟t obscure the reality that the external psych blow did cause a loss of consciousness. Distinction to be drawn is b/w a malfning of the mind arising from some cause that is primarily internal to the A, having its source in his psych or emotional makeup, or in some organic pathology (which would be disease of the mind), as opposed to a malfning of the mind, which is the transient effect produced by some specific external factor such as, concussion.

COMPLETE TEST FOR INSANITY: 1) Whether the A‟s conduct could constitute a disease of the mind.   

Legal question, A must prove on BoP Disease of the mind defd in Cooper Internal factor reqmt, Rabey

2) The condition must be severe enough to render the person incapable of appreciating the nature a nd quality of the act, OR incapable of knowing it was wrong (Factual question, onus on A to prove on BoP) 

TEST from Cooper

R v Park s [1992] (SCC), pg 783

Sleepwalking defence Facts A was experiencing personal probs, fell asleep in living room, got up, drove 23km to inlaws, strangled and beat father in law, killed mother in law. Issues Held Acquitted Ratio Sleepwalking is in a sep categ. Unconc behaviour in a state of somnambulism is noninsane automatism. (note on the Rabey approach, this is an internal factor, tf would be insanity, tf are saying it‟s a special rule) Note: this isn‟t to say that sleepwalking will never be a disease of the mind. Automatism has unique place in crim law sys. Although spoken of as a “defence”, it is a subset of the voluntariness reqmt, which is pt of the actus reus component of crim liab (distinction b/w sane and non-insane settled in Rabey). Three factors to take into accnt w/ this defence: 1) Internal/external 2) Is the A a continuing danger? 3) Policy reasons (floodgates agmt not persuasive, v diff to feign) Rule Sleepwalking can qualify as sane automatism.

R v Stone [1999] (SCC) pg 801

LEADING CASE on automatism 62

Facts

Issues Held

Ratio

Accused stabbed wife 47x, killing her, after visiting his sons w/ her, prior to stabbing, she raised the issue of divorce and said she had falsely reported to police he was abusing her, said they were going to arrest him, called him other names, felt “whoosh” sensation go over him, then when refocused saw wife slumped over on the seat. Should issue of sane automatism have been left to the jury? How an A‟s claim of automatism should be assessed. The court found that the trial judge was correct in not putting the automatism defence to the jury, as the insults that led to the „black out‟ were not “extraordinary external events”. Automatism: used to desc unconc, invol, behaviour, the state of a person, who though capable of action, isn‟t conscious of what he/she is doing Key issue: b/c an A who acts in an automatic state will generally satisfy the defence of insanity, the crucial issue in automatism cases is whether the cause of automatism is a mental disorder or another factor. 3 step substantive approach: 1) A must show on BoP that his actions were invol 2) Once the actions are accepted as invol, they are presumed insane D must prove on BoP that he isn’t suffering from a disease of the mind. Start from the proposition that the condition the A claims to have suffered from is a disease of the mind. They must then det whether the evid in the partic case takes the condition out of the disease of the mind categ. There are 2 distinct approaches to the disease of the mind inq: internal cause theory, and the continuing danger theory. Internal cause theory recog in Parks as the dom approach in Cdn juris. Bastarache says that the internal cause theory can‟t be recog as a univ classificatory scheme for “disease of the mind”. There will be cases where the dichotomy b/w internal and external causes becomes blurred. Tf must use a holistic approach to the disease of the mind inq. 3) Other policy factors Can eval any such valid policy concern Policy concerns assist trial judges in answering the fund question of mixed law and fact which is at the ctr of the disease of the mind inq: whether society reqs protection from the A and, conseq, whether the A should be subject to eval under the regime contained in pt XX.1 of cc. DISSENT (Binnie): Doesn‟t like the reverse onus. The validity of an accused’s claim of automatism should be evaluated by a holistic assessment of internal cause theory, continuing danger through, and relevant policy concerns. 3 step approach to defence, see above 

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Rule

R v Fontain e [2004] (SCC), pg 809

Get uncertainty from this judgment Facts A charged w/ first degree murder of D; R (former coworker) called and said was going to get him, heard from co-worker that D had been offered a contract to kill accused and R, D came to garage to pay a debt, accused shot him 2x, then further 5x outside. D raised the defence of insane automatism, but the trial judge did not put the defence to the jury on the belief that there was no evidence that would allow a properly instructed jury to conclude on a balance of probabilities that he was acting involuntarily. D appealed on the grounds that the defence should have been put to the jury. 63

Issues Held Ratio

Note

Should mental disorder automat have been left w/the jury? Defence of mental disorder automatism should have been put to the jury. New trial ordered. Jury doesn‟t have to weigh evid, if there is evid upon which a prop instructed jury could find the act was committed when the A was in a state of automatism, then evid suffic Since have Stone case, shouldn‟t have put non-insance automatism to the jury. Mental disorder automatism means the defence of insanity.

R v L uedecke (2008) (Ont CA), pg 813

Facts

Issues Held

Ratio

A and C were guests at a house party, C fell asleep at 2am, woke up at 5am to a man having sex w/ her, he looked dazed, accused had been drinking and consuming magic mushrooms the day before, drank 8-12 beers, couple rum and cokes and couple vodkas, A fell asleep on couch, next thing he remembers is getting pushed off couch by C. Defence: non-insane automat. Sleep disorder expert diag A w/ parasomnia, relied on A‟s history of sleep probs and past incidents of “sexomnia”. Parasomnia not disease of the mind. Ordered new trial limited to the det of whether the automatism constituted automatism resulting in an acquittal or mental disorder resulting in an NCR -MD verdict. Constitutional reqmt that the act be voluntary. After Stone, many argue that successful claims of non-mental disord automat will be lim to those v rare “one off” cases in which an A suffers a single incident of automat and where the A can pt to some specific external event that precipitated that event, can demonstrate that the event is unlikely to reoccur, and finally, can show that the event could have produced a dissoc state in an otherwise “normal” person. (TEST) In this case, triggers were alcohol, stress and fatigue, tf likely to reoccur.

Rule

Premenstrual Syndrome 

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Woman ended love affair by delib running down lover w/ car and killing him Trial: pled guilty to manslaughter b/c of diminished responsibility, was discharged from custody o Barmaid placed on probation for carrying a knife and threatening to kill a policeman though she was already on probation for having stabbed a fellow barmaid to death In both cases, English cts found that D‟s were suffering from PMS Should PMS be a defence in cdn cts? In 1994, more debil form of PMS, premenstrual dysphoric disorder (PMDD) added to DSM-IV

4. Intoxication Society refuses to accept the plea of lack of responsibility for one who commits a crime in an intoxicated state. The act of becoming acutely intoxicated is itself judged as irresponsible and the consequences must be paid for. The result is a compromise between the requirement of the criminal law for a responsible or voluntary act, and the judgement of society that a wrongdoer not be exonerated simply because he was drunk. a) Common Law [1988] (SCC), pg 828 R v Bern ard 64

Facts

Issues

Held

Ratio

A got drunk and sexually assaulted a victim causing bodily harm. Charge: s.246.2(c) [sexual assault causing bodily harm]. A raised the defence of intoxication, on the argument that sexual assault causing bodily harm should be seen as a specific intent offence (to which intoxication defence would apply, on the grounds that the intoxication would prevent A from forming the required fault element of a specific intent offence). 1) Whether SA causing bodily harm, s.246.2(c) of CC is an offence requiring proof of specific or of general intent; 2) whether evid of self-induced drunkenness is relev to issue of guilt or innocence in an offence of gen intent. The ct held that s. 246.2(c) [sexual assault causing bodily harm] is a general intent offence. Therefore, the defence of intoxication does not apply. The ct also held that s. 246.2(c) is constitutionally valid. Appeal denied. McIntyre: Intoxication is a defence in specific intent offences, as the accused would not have the capacity to form the specific offence GI offence: one in which the only intent involved relates to the performance of the act in question, with no further ulterior intent or purpose SI offence: is one which invs the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act (e.g. striking a blow or administering poison with the intent to kill, or a ssault with the intent to resist arrest) Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged, it may apply. The defence, however, has no application in offences of general intent. It would therefore be my view that the mental element of the offence in s. 246.2(c) is only the intention to commit the assault. The surrounding circumstances must be considered for evidence of its sexual nature and of the resulting bodily harm. The Crown need not show any further mental element. The requisite state of mind may be proved in two ways: 1) there is the general proposition that triers of fact may infer mens rea from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. 2) in cases where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may meet its evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the fact of voluntary self-induced intoxication by drugs or alcohol (admittedly it is hard to imagine a case actually occurring where the accused was so drunk they can't even form the intent to act). Only in cases of the most extreme self-intoxication does the trier of fact need to use the second proposition, that is, that evidence of self-induced intoxication is evidence of the guilty mind, the blameworthy mental state. Wilson: (THIS BECAME POSN OF CT, however was reversed quickly) The real concern over the substituted form of mens rea arises under s. 11(d) of the Charter. While this court has recognized that in some cases proof of an essential element of a criminal offence can be replaced by proof of a different element, it has placed stringent limitations on when this can happen. It is unlikely that in those cases in which it is necessary to resort to self-induced intoxication as the substituted element for the minimal intent, proof of the substituted element will "inexorably" lead to the conclusion that the essential element of the minimal intent existed at the time the criminal act was committed. But I prefer to leave this question open, as it is unnecessary to decide it in order to dispose of this 65

Rule

appeal. (discussion as per s. 11(d)) Voluntary drunkenness isn’t a defence for gen intent crimes. Crimes of SA are GI crimes to which voluntary intox is no defence. Specific Intent Offences: Murder Assault with Intent to resist arrest Break and Enter with Intent to Commit an indictable offence Robbery Theft Attempts Aiding and Abetting

General Intent Offences: Manslaughter Assault Break and Enter and committing an indictable offence Sexual Assault Assault Causing Bodily Harm

b) Charter Standards R v Daviaul t [1994] (SCC), pg 850

Facts

Issues

Held Ratio

A charged w/ SA. Was a chronic alcoholic, went to C‟s house, SA‟d her in middle of night (was in wheelchair). A claims he can‟t remember SA. Estim that A‟s blood alcohol level would have caused death or coma in reg person. Trial: acquitted b/c had RD that A had min intent ness to commit SA. CA: allowed appeal, convicted. Can a state of drunkenness which is so extreme that an A is in a condn closely resembling automatism or a disease of the mind as def in s.16 of CC constitute a basis for defending a crime which reqs not a specific but only a gen intent? Appeal allowed, ordered new trial. The court held that the Charter required the acceptance of the defence of extreme intoxication to the point of automatism. Charter can be complied w/ in crimes req a gen intent if: A were permitted to estab that at time of act, he was in state of extreme intox akin to automatism or insanity A bears burden of estab on balance of probab that he was in that extreme state of intox (done w/ expert testimony) Allowing this would mean that a defence would be open that due to extreme deg of intox, the min mental element reqd by a gen intent offence hasn‟t been estab Onus on A to show he was probably in a state akin to automatism of insanity as a result of his drinking on BoP. When a state of drunkenness is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Code and commits a specific intent offence, a defence of extreme intoxication may be entertained in order to satisfy s. 7 Charter requirements. Must prove on BoP and need to have expert evid. 

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Rule

R v Dal ey [2007] (SCC), pg 865

3 categories of distinction Ratio The legally relev degrees of intox, 3 degrees: 1) mild intox – where there is alcohol induced relaxation of both inhibitions and socially acceptable behaviour – has never been accepted as a factor or excuse in det whether the accused possessed the requisite mens rea 2) advanced intox – where there is intox to the pt where the A lacks specific intent, 66

Rule

to the extent of an impairment of the A‟s foresight of the conseq of his act suffic to raise a reasonable doubt abt the requisite mens rea – defence for this level only applies to specific intent offences 3) exteme intox akin to automatism, which negates voluntariness and thus is a complete defence to crim responsibility, v rare defence Where drunkenness raised as a defence to a specific intent crime, the issue is one of intent in fact rather than incapacity. Must be in an advanced state of intoxication in a murder case, can get it down to manslaughter.

Justifications and Excuses

1. Why allow common law defences? 

Not possible to anticipate every future defence

Note: can‟t charge someone w/ a CL offence, have to be a stat offence. 2. Air of Reality for Defences R v Cinou s [2002] (SCC), pg 869

Air of reality test Facts Issues Is there an AOR to the defence of self defence (SD) in this case? Held No AOR to the defence. Ratio Features of air of reality test: Inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test (pappajohn) 1) trial judge must put to jury all defences that arise on the facts, whether or not they have been specifically raised by an accused – where there is an air of reality to a defence, it should go to the jury 2) trial judge has pos duty to keep from the jury defences lacking an evidential foundation - defence lacking air of reality should be kept from the jury (pappajohn) In consid aor test, judge considers the totality of the evidence and assumes the evid relied upon by the accused to be true (park) – aor test doesn‟t consid whether the defence is likely or not to succeed Single AOR test applies to all defences (Park) Rule Approach to air of reality test: whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit

R v Fontain e [2004] (SCC), pg 873 

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To avoid unfairness and confusion, no issues will be put to the jury in the abs of suffic evidential foundation (Det by consid the issue and the nature of the burden of proof on the issue concerned) Crown bears both burdens on the issue of guilt (persuasive and evidentiary), persuasive burden can only be discharged by proof BARD, case against accused can‟t go to jury unless there is evidence upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt Rev onus offences: A bears persuasive and evidential burdens, persuasive burden discharged by evidence on the BoP – tf rev onus defs go to jury where there is evid upon which a jury could conclude that the defence has been est on the BoP 67

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w/ ordinary defs, A has no persuasive burden – once the issue “put in play”, the defence will succeed unless it is disprov by the crown BARD for ord and rev onus defs, in det whether the evidential burden has been discharged on any def, judge asks: “is there in the record any evid upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds?” discharged if there is some evid upon which a properly instructed jury acting o reasonably could acquit on the basis of that defence accused is entitled to be acquitted on the basis of exculpatory evidence that the dury doesn‟t reject but either accepts or about which it is undecided evid burden discharged where there is some evidence that puts the defence “in play” (Cinous ), def in play when a properly instructed jury could reasonably, on account of that evid, conclude in favour of the accused

3. Necessity R v Du dl ey and Stephens (1884) (English case), pg 876

Facts Issues Held Note

Rule

Stranded at sea, sacrificed man, ate him Whether killing in the circumstances like this is murder? The prisoners act in this case was willful murder, the facts are no legal justification of the homicide, prisoners guilty of murder Dangers to admitting the principle that one can kill out of ness, where to draw line, how are lives measured? In 1970 in Canada, no defence of ness, kept relying on Dudley First time Dudley cited w/ some success was Morgentaler – but SCC said that even if there was such a defence of nesses, it didn‟t apply in that case Can’t kill in necessity

Per ka v R [1984] (SCC), pg 879

TEST for necessity Facts A was smuggling drugs into alaska by boat, enroute the boats engine failed and they become caught in a storm, eventually the crew abandoned the ship and took the drugs w/ them to shore in BC where they were arrested and charged w/ possession for the purpose of trafficking. Trial: acquitted; CA: new trial ordered. Issues Held Appeal dismissed Ratio Dickson for majority held that the crew couldn‟t successfully rely on a defence of ness, the defence was a rare exception that would only be allowed where there was clear “involuntariness” where the A was “strictly ctrlled and scrupulously lim” 3 elements that must be present for the defence of necessity to succeed: 1) imminent peril or danger (modified objective) 2) no reasonable legal alternative to the course of action he undertook (modified objective); and, 3) proportionality b/w the harm inflicted and the harm avoided (objective ) If the circumstances that led to the impugned crim conduct were reasonably foreseeable, it is doubtful that the defence of necessity will succeed Onus is on the crown to prove that the impugned crim conduct wasn‟t excusable by the defence of necessity. Rule Defence of ness would only be allowed where there was clear “involuntariness” 68

where the A was “strictly ctrlled and scrupulously lim”

R v Lati mer [ 2001] ( SCC), pg 889

Facts

A mercy killed his severly disabled daughter who was in constant pain, etc, he was charged w/ first deg murder, but the jury convicted him of 2 nd deg murder, A argued that the killing was necessary Trial: convicted of 2 nd deg murder. CA: inc sentence to 10yrs.

Issues Held

Appeal dismissed, 10 yr sentence upheld. No AOR that the defence of nesses should be put to the jury, none of the 3 criteria would have been met. The ct held that on the fact, the A hadn‟t estab the 3 reqd elements for the defence of nesses (Perka v R). This case affirmed the 3 reqd elements for defence of nesses. Emphasized issue of clear and immin peril. There must be no reasonable legal alt (v impt in Perka, this is why defences of nesses often don‟t succed). Third reqmt from Perka softened in this case (proportionality b/w the harm inflicted and the harm avoided) – the 2 harms must be of comparable gravity, the harm avoided must be comparable to or clearly greater than the harm avoided. Note: also issue here of if they let Latimer off, then disabled ppl would have been at risk. Softened proportionality step (3) of Perka test for nesses – the harm avoided must be comparable to or clearly greater than the harm avoided.

Ratio

Rule

: It isn‟t the law which can create an emergency giving rise to a defence of nesses, but it is the facts Morgentaler of a given sitn which may do so. For necessity to have succeeded here, Dickson, in obiter held that there would have to be evidence that the A considered that the sitn was one of emergency such that failure to term the preg immed could endanger the life of health of the woman, and that upon any reasonable view of the facts, compliance w/ the law was impossible. (Dickson found no evid fit to be left w/ the jury here) 4. Duress VERY LIKELY THAT EXAM WILL HAVE SOMETHING FROM DURESS

Duress cases all over the map, have to put them together to come up w/ 4 reqmts: 1) the nature of the threats  

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start by looking at cc, which says that “compulsion by threats of immed death or bodily harm” word grievous has been deleted from the above sentence in cc, this makes it more generous than was originally intended threat to property can NEVER ground a duress defence first case relev to this is carker, below, threat has to be immed and person has to be in presence other relev case, ruzic, argued that pts of s.17 were unconstitutional, now didn‟t ha ve to have immed threats or the person didn‟t have to be present threats of death or bodily harm, don‟t have to be immed or present, can be to a third party, (not a threat to property) (if have threat to property and person saying they will bomb it unless, not duress, perhaps necessity)

2) excluded offences: 

s.17 still exists, some of it knocked out, but nobody from scc has said anything abt excluded offense 69

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eg charged w/ robbery, can you have the defence of duress? – look at s.17, says can‟t have defence paquette, says parties can have defence of duress as well

3) belief of the accused:  

surprisingly generous s.17: if the person believes that the threats will be carried out – is completely subjective, tf someone can completely overreact, according to that s., as long as the person believes it, its ok

4) comes from hibbert, reqmt of no reasonable safe avenue of escape (pg 910) Compulsion by threats 17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). Compulsion of spouse 18. No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.

R v Carker ( No 2) [ 1967] ( SCC), pg 901

Facts

Issues Held Ratio

Rule

Trial: Admitting damaging plumbing fixtures in prison cell, but claims did so under the compulsion of threats and was tf entitled to be excused and was also entitled to avail himself of the CL defence of “duress” (convicted). CA: ordered that respondents conviction for unlawfully and willfully damaging public property and thereby committing mischief should be set aside and a new trial ordered

Allowed appeal, set aside judgement of CA and restore conviction. Threats were immediate (continuos until time offence was committed) but weren‟t threats of immediate death or immed grevious bodily harm and none of the persons threatening him were in the cell w/ him. Also, virtually inconceivable that “immed death” or “grevious bodily harm” could occur. For s.17, the person who utters the threats must be present when the offence is committed in order to afford an excuse for committing it (people uttering the threats weren‟t in the cell at the time . s.17 has exhaustively codified the CL defence of duress (thi s vi ew has been modifi ed in li ght of later cases – see below)

R v Paquette [1977] (SCC), pg 903

Facts

Paquette drove 2 persons to pop shoppe where the 2 persons committed a robbery and homocide. Paquette only did so because he was threatened w/ death if he didn‟t, was threatened in that they pulled a gun on him and he was told that if he didn‟t do it, 70

they would shoot him. Charge: s.21(2) of CC. Trial: convicted; CA: appeal allowed. Issues Held Ratio

Rule

s.17 inapplicable here. Ct says that there is a law abt parties, s.21(1) – anyone is a party to an offence who actually commits it – but Paquette did something for the purpose of aiding or abetting, in that sense is a party to the offence, so ct says cant have the defence of duress b/c the defence only applies to perpetrators, not parties, but says can have CL defence of duress s.17 lim to cases in which a person seeking to rely upon it has himself committed an offence. Defence doesn’t apply to parties.

R v H ibbert [ 1995] (SCC), pg 907

Facts


Accused charged w/ attempted murder based on allegation that he was a party to the shooting of C by B. Accused went w/ B to C‟s apt and arranged for C to come to lobby where C was shot 4x by B, accused testified that C had threatened to shoot him if he didn‟t cooperate. Trial: acquitted A of attempted murder but convicted of agg assault. CA: dismissed appeal. Appeal allowed, new trial ordered. Here there was a safe avenue of escape. Can‟t rely on CL defence of duress if had a safe avenue to leave, det on an objective std, but the personal circumstances of the accused are relev and should be taken into account Duress doesn’t negate mens rea, ths issue is NOT one of inte nt – an act of duress is an act of conscious choice, “done most unwillingly, but yet intentionally” No defence if no safe avenue of escape. (This is just a specific eg of the more gen reqmt to the defence of nesses that compliance w/ the law must be “demonstrably impossible” – this was reqd by the reqmts that the sitn be one of “normative involuntariness”) – judged on modif objective std taking into accnt the partic circumstances & human frailties.

b) Charter Std and Moral Involuntariness R v Ruzic [2001] (SCC), pg 914

Facts

Issues Held Ratio

Accused charged w/ importing 2kg of heroin into Canada, admitted having the narcotics but claimed that she was acting under duress – conceded her claim didn‟t meet the immediacy and presence reqmts under s.17 of cc, but challenged the constitutionality of s.17 under s.7 of the charter and raised cl defence of duress. Trial: acquitted; CA: appeal dismissed. Appeal dismissed, s.17 was in pt unconstitutional S.17 breaches the charter b/c it allows ppl who didn‟t have a moral choice to be crim liab, s limits defence to those under threat of immed death or immed bodily harm – v narrow, “presence when the offence committed” along w/ immed reqmt, also precludes threats of future harm, underinclusiveness infringes s.7 of charter Cl defence of duress not completely superceded by s.17 of cc and remains available, no longer have reqmt of presence and immediacy The CL defence recognizes that an accused in a situation of duress not only enjoys rights, but also has obligations towards others and society. As a fellow human being, the accused remains subject to a basic duty to adjust his or her conduct to the 71

Rule

Note

importance and nature of the threat. The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated. The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to the personal integrity of the person. In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. Concludes that there are 2 sitns that would compel him to be sympathetic to ruzic : 1) the battered woman in sitn of abuse, and her husband coerces her to break the law in some way or another, eg husband says your kid from first marriage is messing this up, whip him, and does, duress could be used here; 2) sitn like this one where going to the police isn‟t an option, in Belgrade police are literally lawless, or could have sitn where its happening in rural area, nearest rcmp detachement is v far away, no cell phone service Don’t have to worry abt immediacy and presence reqmt anymore – they were contrary to the principle of moral involuntariness. The principle of moral involuntariness recognizes that there are some sitns of agonizing involuntary choice, and we shouldn’t criminalize the conduct of ppl in these sitns. In Ruzic they agreed that immediacy wasn‟t a constitutional reqmt, but in Latimer w/ nesses, 1st reqmt had to be immed peril. Note: the constitutionality of the exclusion by s17 of specific offences (SA, murder, attempted murder, etc), left open in Ruzic: Is this justifiable in light of Charter? May viol s.7 by requiring the conviction of a person who acted in a morally invol manner and had no realistic choice but to commit the crime Blunt and overbread means of ensuring social protection IF s.17 found unconst in its entirety  CL defence could apply to all 

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**summary of duress in March 25 notes, homicide problem** 5. Defence of Person DEFENCE OF PERSON Self-defence against unprovoked assault 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. Extent of justification (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. Self-defence in case of aggression 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (a) he uses the force (i) under reasonable apprehension of death or grievous bodily harm from the violence of the 72

person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. Provocation 36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures. Preventing assault 37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. Extent of justification (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

Notes on SD: S.34(1) reqs 4 elements: (from treatise) – see March 25 notes as well 1) there must be an assault (Def of assault incl the application of force which may be mere touching, does words count?) 2) the assault need not be provoked (s.36 declares that “provocation” here includes that by “bl ows, words or gestures” 3) lack of intent to kill or cause grevious bodily harm (but this doesn‟t preclude the operation of this ss where death or grev bodily harm has occurred w/out that intent) ref to intent confusing, b/c we are dealing w/ a justification where mens rea is assumed 4) the force use be “no more than is ness” for sd don‟t have to measure to a nicety the exact measure of ness defensive action (Baxter) 

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**see march 25 notes for summary on 34(2) as well** Note: of Self defence, nesses, duress, SD is most likely to succeed. R v Pintar (1996) (Ont CA), pg 926

Facts

Issues Held

A charged w/ 2 cts of 2 nd deg murder. A awoken by R, A asked him to leave, R said was there to “finish this off”, took swing at A, knocked R onto front porch, R said he had killed the As dog and A was next, R yelled more threats, G got out of truck outside, A got rifle, R grabbed gun, struggle ensued and the two deceased were shot by A. Trial: guilty. If no killing, use s.34(1), R v Pintar If charge is murder/killing, use s.34(2), R v Pintar Wider test, question is whether the accused believed on reasonable  grounds that he could not otherwise preserve himself from death or grievous bodily harm; don’t have to ask whether D could have avoided the killing via a different course of action 73

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Ratio Rule

Note

34(2) also avail to an initial aggressor – had read out s.35

Functional approach: when more than one provision is available, put the wider one to the jury (this means that s.34(2) and not s.34(1) should be put in all murder cases whether or not the A intended to cause D/GBH). Note: presumably the same would be true where the charge is manslaughter which charge would, however, appear unlikely given evid of i ntent). s.34(2) is wider than s.34(1) – it applies on present interpretations even if the A provoked the assault, even if the A intended to kill or cause GBH, and the question isn‟t whether more force was used than was ness but whether the A believed on reasonable grounds that he couldn‟t otherwise preserve himself from death or GBH. **Treatise says its debatable that 34(2) is wider as the propor test for 34(1) has always been interp not as a strict mechanical test, but one under which a person defending against an attack need not weigh to a nicety the exact measure of necessary defence.

R v Deegan (1979) (Alta CA), pg 929

Self defence: no duty to retreat Facts Trial: A convicted of murder. Victim attacked A in A‟s apt after altercation b/w them, during fight in A‟s apt, A stabbed victim w/ knife, killing. Issues Held Appeal allowed, conviction set aside. Ratio Mans home is his castle – dangerous idea, could go too far. This approach (that have no duty to retreat) is a flexible approach. Rule No automatic rule that A can’t succeed in the defence if he could have retreated (note: duty to retreat would go against “mans home is castle”).

R v L avall ee [1990] (SCC), pg 930

Facts

Issues Held Ratio

Appellant killed husband by shooting him, shooting occurred after an agmt where the appellent had been physically abused and threatened that she either kill him or he would get her, he had freq phys abused her. Trial: acquitted; CA: overturned. Appeal allowed. Expert evidence is admissible, it helps that jury get a better picture of the sitn, expert testimony rel to the abil of an A to perceive danger from her partner may go to the issue of whether she “reasonably apprehended” death of grievous bodily harm on a partic occasion. Expert evid doesn‟t and can‟t usurp the jury‟s fn of deciding whether in fact the A‟s perceptions and actions were reasonable. The expert testimony was properly admitted in order to assist the jury in determining whether the appellant had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative but to shoot. Each of the specific facts underlying the expert's opinion need not be proven in evidence before any weight could be given to it; as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony; the judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. Killing involved – tf s.34(2) relev Have an individualized approach to defences – the issue isn‟t what an outsider would 74

Note Rule

have reasonably perceived but what the A reasonably perceived, given her sitn and her experience. (don‟t take into accnt drunkenness) TF: can use the BWS to say that the person has a reasonable apprehension of harm (putting the reasonable person who happens to have been battered) (notion of an individualized objective approach) Battered Woman Syndrome, 3 stage process: 1) Tension building, 2) the acute battering incident, 3) loving contrition Reasonable belief pt of test: When SD is relied upon by a woman who has been abused, both her gender and her experience of abuse are central to the consideration of whether there was a reasonable belief (modified objective std) Where evid exists that the A is in a battering relnshp, expert evid can assist jury in det whether the A had a reasonable apprehension of death.

R v Petel [ 1994] (SCC), pg 939

Facts

Issues Held Ratio

Rule

Accused charged w/ 2nd deg murder of R, R and E were inv in drug trafficking, E‟s gf was accused daughter, after daughter moved into E‟s house, A said he (E) was always angry, threatened her freq and beat her daughter, A tried to put an end to E‟s presense in her house but couldn‟t. E went to accused home w/ revolver, cocaine and scales, forced her to weigh some cocaine, and suggested he would kill her along w/ her daughter and granddaughter, shortly after, daughter arrived w/ R, accused consumed small amt of drugs, got the weapon, and fired at E, R was lunging at A, so A fired at him too, E survived but R died. A said she fired at both E and R and that she wished both of them dead. Trial: convicted of 2 nd deg murder. CA: appeal allowed, new trial ordered. Does she have a defence of SD? Appeal dismissed. 1st ness element for self defence – an unlawful assault is satisfied by the reasonable perception of an unlawful assault No formal reqmt that danger be imminent, the immanency reqmt is a CL presumption that may be rebutted (partic by expert evidence), imminence is only one of the factors which the jury should weigh in det whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing her attacker Magnitude of force: no specific reqmt that the repelling force used by the accused shall be proportionate to the unlawful act Judge charges on 34(2) b/c of killing. No formal reqmt that danger be imminent, had to take into accnt that this woman had been threatened before.

R v Mal ott [ 1998] ( SCC), pg 943

Facts

Issues Held Ratio

A charged w/ murder, A and deceased had lived as CL spouses for over 20 yrs, he freq abused her, A shot deceased, then went and shot and stabbed deceased‟s gf. Trial: guilty of 2 nd deg murder of deceased and of attempted murder of gf. Dismissed appeal on basis that trial judges charge on SD and the evid of abuse, while not perfect, was adeq. Battered woman syndrome isn‟t a defence in itself (BWS used w/ caution) Expert evidence on abusive relnships only relev to understand the 

75

reasonableness of her actions in the context of her personal experiences and her experiences as a woman, not to her status as a battered woman or her entitlement to the claim that she is suffering from BWS Possible that women don‟t fit into the stereotype of a passive, helpless battered woman but will still be able to use the “Syndrome” defence No AOR of defence of SD in this case, BUT reconsidered Lavalle and decided they were too narrow in Lavallee. Rely on Isabel Grant material: says you don‟t have to fit a syndrome in order to be able to use BWS defence. Sitn of learned helplessness is too narrow a concept – possible that ppl won‟t have their claims fairly demonstrated, eg those that have fought back, etc. Don’t have to “fit” BWS to be able to use it. Cts should avoid too rigid & restrictive approach to the admissibility & legal value of evid of a BW’s experiences. In cases inv BWS, comment is needed on: 1) Why an abused woman might remain in an abusive relnshp 2) The nature and extent of the violence that may exist in a battering relnshp 3) The A‟s ability to perceive danger from her abuser 4) Whether the A believed on reasonable grnds that she couldn‟t othe rwise preserve herself from death or GBH. 

Rule

Note

[2006] (SCC), pg 948 R v Kong LEADING CASE on s.34(1) Facts Kong charged w/ 2nd deg murder following stabbing death during fight, mui was stabbed to death, mui‟s bro hit member of the accused grp over the head w/ a bottle, A and other drew knives, mui went to help bro, was stabbed. Trial: defence of SD had no AOR, wasn‟t left to jury, guilty of manslaughter. CA: dismissed appeal. Issues s.34(1) or 34(2)? Held Appeal allowed, conviction set aside, new trial ordered. Ratio Dissent by Wittman JA was accepted by SCC – considering all the circumstances of this case the defence of sd under s.34(1), although not that under 34(2), had an air of reality and should have been put to the jury for its consideration, it shouldn‟t have been left to the jury to det whether the force used by the A in using the knife was done in sd and whether it was proportional or no more than was ness in the circumstances to protect himself Wittman held that evidence had passed air of reality test for each of the elements under 34(1) 1st element, unlawful assault satisfied by the reasonable perception of an unlawful assault Conseq of the accuseds act aren‟t to be determinative of his intention or as to the 4 th element of whether the force used by the accused was no more than he reasonably believed was ness to defend himself in the circumstances Det whether the force used was no more than was ness to enable the accused to defend himself req both an subjective and objective test: 1st whether the A believed the force used was ness is a subjective inq  2nd whether the A‟s belief was a reasonable belief is an objective inq  alternatively, a modif objective test applies to the threat assessment by the A,  while an objective test applies to the responsive force used – but none of the tests reqd a precisely calc response under s.34(1) a person isn‟t reqd to weigh to a nicety the exact measure of a  76

defensive action or to stop and reflect upon the risk of deadly conseq fom such action, the accused may be mistaken abt the nature and extent of force ness for sd provided the mistake was reasonable in the circumstances in deciding whether the accuseds use of force was reasonable, the jury is to look to the circumstances to consider what a reasonable person in the A‟s sitn might do given the threatening attack and what force would be ness to defend himself against that apprehended attack under wittmans approach, the proportionality test for s.34(1) is to be judged on a subjective/objective test, the test must be tolerant, and inv flexibility and no strict proportionality test Kong is in contrast w/ cinous where the majority held there was no air of reality to leave sd w/ the jury where the A testified that he shot a fellow gang member b/c he thought that person was preparing to assassinate him. Cdn judicial attitude to sd is one of flexibility, strict proportionality not reqd, and there are no automatic rules that the defender can‟t strike the first blow (lavallee), or can‟t succeed in the def of sd if he could have retreated (deegan) There is a role for 34(1) even though death occurred where there was no intent to cause D or GBH. 

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Rule

6. Defence of Property

DEFENCE OF PROPERTY Defence of personal property 38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified (a) in preventing a trespasser from taking it, or (b) in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser. Assault by trespasser (2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation. Defence of dwelling 40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority. Defence of house or real property 41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary. Assault by trespasser (2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.

R v Baxter (1975) (Ont CA), pg 956 77


This was a sitn of using force to remove a trespasser. If not scared of him, and there is no unlawful attack, he did nothing but trespass, so what s. applies? In this case, said there was CL, discuss how it overlaps (see pg 957) the s. of the cc auth the use of force in defence of a person or property to prevent crime, and to apprehend offenders, express the principle of the CL that the force used is ness (that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used, is not disproportioned to the injury or harm it is intended to prevent in this case there was no evidence of a reasonable apprehension on the pt of the appellant of serious injury to the property of anyone, and his right to use force to prevent reasonably apprehended serious injury to himself was dealt w/ under sd firing at a mere trespasser isn‟t justifiable – killing or causing grev bod harm to a trespasser could only be justified in sd note: this is a policy imposed limit on the defence of property o under s.41(2), a trespasser who resists an attempt by a person in peaceable possession of a dwelling house or real property to prevent his entry or to remove him is deemed to commit an assault w/out justification or provocation the amt of force that may be used to prevent or defend against any assault actually committed by the wrongdoer deps upon the ordinary principles of sd in s.34 Test of proportionality in 34(1) isn’t purely objective – doctrine of mistake of fact is available, A’s belief that he was in imminent danger may be reasonable, although he may be mistaken in his belief. In deciding whether t he force used by the A was more than was ness in SD, A can’t be expected to weigh to a nicety the exact measure of defensive action. 1) Do indep inq into the belief in the nature of the attck 2) Then inq into whether the defence was, in all the circumstances ness Both 1) and 2) are objective: TEST is on what the A’s honest and reasonable belief was, & if, on this belief, the defence was reasonably ness Note: Passive resis by a trespasser upon being told to leave will not equal assault. The amt of force that may be used deps upon the ord principles of SD as set out in s.34 of CC. Martin in Baxter holds that: s.34(1) and 34(2) aren‟t mutually exclusive, the words in s.34(2) “who causes D or GBH” had to mean “even though he intentionally causes D or GBH” – if not, this would leave unprotected one who, used no more force than was ness to defend himself against an unprovoked assault, accidentally killed or caused GBH to his attacker but didn‟t meet the reqmts of s34(2) (note: this interp is consis w/ Kong ) 

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Rule

Note

R v Gunning [2005] (SCC), pg 958

Facts

A hosted party, uninvited guest, mr Charlie showed up, A asked him to leave, C refused, responding in insulting and intimidating fashion, A, drunk, loaded shotgun, returned to tell C to leave, gun went off, killing C. A charged w/ murder, based on having killed C while commiting the unlawful act of careless use of a firearm, A pleaded not guilty b/c gun went off by accident, also claimed he wasn‟t guilty of 78

careless use of a firearm b/c his use of it was justified on the basis of defence of property Issues Held Ratio

Appeal allowed, set aside conviction, order new trial. 4 elements to the defence of house or property: 1) he must have been in possn of the dwelling-house 2) his possn must have been peaceable 3) mr Charlie must have been a trespasser 4) the force used to eject the trespasser must have been reasonable in all the circumstances only 4th element contentious in this case Intentional killing of a trespasser could only be justif where the person in possn of the prop is able to make out a case of SD (Baxter). The respective fns of the judge and jury its never the fn of the judge in a jury trial to assess the evidence and make a det that the crown has proven one or more of the essential elements of the offence and to direct the jury accordingly, doesn‟t matter how obvious the judge may believe the answer to be Application to this case: reasonableness of the force used: trial judge took too narrow a view all of the events preceding the shooting had to be taken into account in det whether A had used reasonable force in his attempt to eject Charlie in det whether there was any air of reality to this 4 th element of the def of property, it is clear that the trial judge overstepped his role and decided the merits of the defence – this was for the jury to resolve Most of the defences turn on “no more force than is ness”, except that they rely on this CL limit, that if you are only acting to defend property, you can‟t kill someone threshold: value life more than property Where there is an intentional killing of a trespasser, such a defence could only avail where reqmts for SD were met. 

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Rule

Bill C-60: On Feb 17, 2011, Parl tabled Bill C-60 in the house of Commons to expand the power of citizen arrest in response to the charging of a merchant in Toronto who had arrested and held down a fleeing thief. The Bill would replace s.34-42 in CC (only 34-35 shown here) Current CC

Bill C-60

Defence of Person Self-defence against unprovoked assault 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Defence-use of threat of force 34. (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; Extent of justification (b) the act that constitutes the (2) Every one who is unlawfully assaulted and who offence is committed for the causes death or grievous bodily harm in repelling the purpose of defending or assault is justified if protecting themselves or the (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with other person from that use or 79

which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

threat of force; and (c) the act committed is reasonable in the circumstances

Factors (2) In determining whether the Self-defence in case of aggression 35. Every one who has without justification assaulted act committed is reasonable in the circumstances, the ct may another but did not commence the assault with intent to consider, among other factors, cause death or grievous bodily harm, or has without (a) the nature of the force or justification provoked an assault on himself by another, threat; may justify the use of force subsequent to the assault if (b) the extent to which the use (a) he uses the force of force was imminent and (i) under reasonable apprehension of death or whether there were other means grievous bodily harm from the violence of the available to respond to the potl person whom he has assaulted or provoked, and use of force; (ii) in the belief, on reasonable grounds, that it is (c) the person’s role in the necessary in order to preserve himself from death incident; or grievous bodily harm; (d) whether any party to the (b) he did not, at any time before the necessity of incident used or threatened to preserving himself from death or grievous bodily use a weapon; harm arose, endeavour to cause death or grievous (e) the size, age and gender of bodily harm; and the parties to the incident; (c) he declined further conflict and quitted or (f) the nature, duration and retreated from it as far as it was feasible to do so before the necessity of preserving himself from death history of any relnshp b/w the parties to the incident, incl any or grievous bodily harm arose. prior use or threat of force and the nature of that force or threat; Provocation 36. Provocation includes, for the purposes of sections (g) the nature and proportionality of the person’s 34 and 35, provocation by blows, words or gestures. response to the use or threat of force; and Preventing assault (h) whether the act committed 37. (1) Every one is justified in using force to defend was in response to a use or himself or any one under his protection from assault, if threat of force that the person he uses no more force than is necessary to prevent the knew was lawful. assault or the repetition of it. Extent of justification (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

No defence (3) Ss (1) doesn’t apply if the force is used or threatened by another person for the purpose of doing something that they are reqd or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting lawfully

Defence of Property Defence of personal property

Defence - property 80

38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified (a) in preventing a trespasser from taking it, or (b) in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser.

35. (1) A person is not guilty of an offence if (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is Assault by trespasser (2) Where a person who is in peaceable possession of in peaceable possn of property; (b) they believe on reasonable personal property lays hands on it, a trespasser who grounds that another person persists in attempting to keep it or take it from him or (i) is abt to enter, is entering or from any one lawfully assisting him shall be deemed to had entered the property w/out commit an assault without justification or provocation. being entitled by law to do so, (ii) is abt to take the property, is Defence with claim of right doing so or has just done so, or 39. (1) Every one who is in peaceable possession of (iii) is abt to damage or destroy personal property under a claim of right, and every one the property, or make it acting under his authority, is protected from criminal inoperative, or is doing so; responsibility for defending that possession, even (c) the act that constitutes the against a person entitled by law to possession of it, if he offence is committed for the uses no more force than is necessary. purpose of (i) prevening the other person Defence without claim of right from entering the property, or (2) Every one who is in peaceable possession of removing that person from the personal property, but does not claim it as of right or does not act under the authority of a person who claims property, or (ii) preventing the other person it as of right, is not justified or protected from criminal from taking, damaging or responsibility for defending his possession against a destroying the property or from person who is entitled by law to possession of it. making it inoperative, or retaking the property from that Defence of dwelling person; and 40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or (d) the act committed is reasonable in the circumstances acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly No defence breaking into or forcibly entering the dwelling-house (2) ss (1) doesn’t apply if the without lawful authority. person who commits the act that constitutes the offence doesn’t Defence of house or real property 41. (1) Every one who is in peaceable possession of a have a claim or right to the dwelling-house or real property, and every one lawfully property and the other person is assisting him or acting under his authority, is justified in entitled to its possn by law using force to prevent any person from trespassing on No defence the dwelling-house or real property, or to remove a (3) ss (1) doesn’t apply if the trespasser therefrom, if he uses no more force than is other person is doing something necessary. that they are reqd or auth by law to do in the administration or Assault by trespasser enforcement of the law, unless (2) A trespasser who resists an attempt by a person the person who commits the act who is in peaceable possession of a dwelling-house or that constitutes the offence real property, or a person lawfully assisting him or believes on reasonable grounds acting under his authority to prevent his entry or to 81

remove him, shall be deemed to commit an assault without justification or provocation.

that the other person is acting lawfully

Assertion of right to house or real property 42. (1) Every one is justified in peaceably entering a dwelling-house or real property by day to take possession of it if he, or a person under whose authority he acts, is lawfully entitled to possession of it. Assault in case of lawful entry (2) Where a person (a) not having peaceable possession of a dwellinghouse or real property under a claim of right, or (b) not acting under the authority of a person who has peaceable possession of a dwelling-house or real property under a claim of right, assaults a person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him from entering, the assault shall be deemed to be without justification or provocation. Trespasser provoking assault (3) Where a person (a) having peaceable possession of a dwelling-house or real property under a claim of right, or (b) acting under the authority of a person who has peaceable possession of a dwelling-house or real property under a claim of right, assaults any person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him from entering, the assault shall be deemed to be provoked by the person who is entering.

Class notes: 34(1): doesn‟t say person under your protection (??) (Good), also is more broad. The current law of SD turns a lot on what is no more force than is ness – in bill c-60 34(2): “imminent” used in c-60 – thought that Lavallee got rid of “imminent”. In c-60, What does reasonable mean? (c) – role in the incident – vain; (e) – which way will this cut if it‟s a man on man?; (g) – proportionality, thought that the person didn‟t have to “measure force w/ a nicety”. Appears c -60 is addressing the issue of an individualized approach to what is reasonable 35(1): c-60 doesn‟t say which property in (a) – should be more specific; d) “Reasonable in the circumstances” – this doesn‟t solve the problem created in the cc, now both this and the last defence are going to be det on whether the trier of fact believes it was reasonable in the circumstances, this also gives a bit of a proportionality reqmt, but still won‟t have defence if you kill someone.

7. Partial Defences to Murder 82

(a) Provocation      

partial defence to murder in that it reduces it to a conviction of manslaughter has always been a statutory partial defence of provocation rationale for this defence: recog that ppl lose temper at times is an excuse: recog that the act was wrong, it‟s a concession to human infirmity if abol the mandatory min for murder, then can prob do w/out this (unlikely) provocation isn‟t a substantive defence anywhere else – no defence of provocation in any other context (Eg not in assault)

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) A wrongful act or an insult that is of such a nature 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 his passion to cool. Questions of fact (3) For the purposes of this section, the questions (a) whether a particular wrongful act or insult amounted to provocation, 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.

R v Tran [2010] (SCC)

LEADING CASE on provocation Facts A broke into apt of his wifes bf, found them together, stabbed both and killed them, appeal conc w/ charge of 2 nd deg murder of the bf. Trial: pleaded provoc, was acquitted of murder, convicted of manslaughter. CA: defence of provo has no AOR, convicted of 2 nd deg murder Issues Held Appeal dismiseed, no AOR to defence of provoc b/c: 1) wasn‟t a wrongful act or insult, b/c the discovery of his estranged wife‟s involvement w/ another man doesn‟t amt to an insult 2) mind wasn‟t unprepared b/c he was suspicious, he was missing the element of provocation 3) suddenness aspect: says that there is no suddenness where there is a preexising suspicion Ratio “Ord person” std informed by contemp norms of behaviour incl fund values such as commitment to equality (Humaid, ord person cannot be fixed w/ beliefs that are irreconcilable w/ fund cdn values) Central conc w/ objective std is the extent to which the A‟s own personal characteristics and circumstances should be consid 83

restrictive approach ignores relev contextual circumstances individualized approach would lead to anomalous resul ts if all the A‟s characteristics were taken into accnt, and it would ignore the cardinal principle that the crim law is conc w/ setting stds of human behaviour proper approach takes into acct some but not all, of the individual characteristics of the A. personal circumstances may be relev to det whether the A was in fact provoked (Subjective element), but they do not shift the ord person std to suit the individual A Subjective element focuses on the A‟s subjective perceptions of the circumstances, incl what the A believed, intended or knew. The A must have killed because he was provoked and not merely b/c the provocation existed. Reqmt of suddenness distinguishes a response taken in vengeance from one that was provoked. Suddenness applies to both the act of provocation and the A‟s response to it. Provocation has both objective and subjective component: Objective: whether there was a wrongful act or insult suffic to deprive an ord person of the power of self ctrl – div into 2 pts: 1) was there an wrongful act or insult? 2) was it suffic to deprive an ord person of the power of selt ctrl? Subjective: whether the A acted in response to the provocation and on the sudden before there was time for his or her passion to cool – div into 2 pts: 1) Did the A act in response to the provoc and on the sudden? 2) Did the A act on the sudden b4 there was time for passion to cool? **suddenness applies to both act of provocation and A‟s rxn to it**  

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Rule

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R v Hi ll [1986] (SCC), pg 962 (Provocation case)

LEADING CASE on how many indiv factors can be taken into accnt on obj apprch Facts Trial: charged w/ 2 nd deg murder. A:16 yrs old. 2 diff versions of the events: Pegg version: H and P were homosex lovers, hill a tried to murder pegg after falling out, struck P in head, not successful, got knives and stabbed P to death Hill version: P came on to H, unwanted by H, P followed H to bathroom, grabbed him, H swung at P w/ hatchet to scare him, in doing so, hit P in the head, P threatened to kill H, H got knives and stabbed him to death Issues For provocation, is “ord person” of the same age and sex of the A? Held Appeal allowed, restore conviction. Ratio First “ord person” test is det on objective stds. Second test as to the loss of self ctrl by the A is det like any other question of fact, as revealed by the evidence, from the surrounding facts. Third test as to whether the response was sudden and before passions cooled is question of fact. What are the characteristics of the “ordinary person”? (Trying to justify why have objective test) english law: R v Lesbini: reasonable person wasn‟t one w/ mental disab  Mancini pub: reasonable person was one of normal temperament and avg  mental capacity The peculiar phys charac of the accused were not to be ascribed to the ord  person (bedder ) (ordinary person isn‟t impotent) Camplin: have change in this case - ord person was person of the same age  and sex of the accused, tf sometimes do take into account characteristics of the A (This is what the judge adopts in this case) Homocide act, “the jury shall take into account everything”, allows consid of  84

relev characteristics in connection w/ the objective test Cdn case law: Taylor v r : criterion is the effect on the ord person, … jury not entitle to take into account any drunkenness – this is still true, everytime we have the objective approach, can never take into account drunkenness, the reasonable person is always sober Salamon v r : no account should be taken of the idiosyncrasies of the person, and no account taken for personal background of A, std if ord person R v parnekar – can‟t take into account race, avg cdn is white, so racial slur is discounted – Dickson is pting out how our approach is extremely tough and decontextualized Widespread agreement that the ord person has a normal temperament (this is a special policy induced limit) and level of self ctrl, and it not exceptionally excitable, pugnacious or in a state of drunkenness, features such as sex, age, or race do not detract for a person‟s characterization as ord. Don‟t have to do whole Camplin approach – the jury will see that the person is male and 16yrs old – rely on the ord sense of the jury. Don’t have to specify that the ord person is of the same age and sex – rely on the ord sense of the jury. 

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Rule

R v Humaid (2006) (Ont CA, leave to appeal, SCC, refused), pg 979

Facts

Issues Held Ratio

Rule

A stabbed wife to death when he learned of her infidelity. It was argued that provocation should be taken into account that as a muslin, the A would perceive his wife‟s infid as a partic serious blow to the honour of the family. Trial: left defence of provocation to jury, but held that A‟s racial and cultural background was irrel to the ord person test. A convicted of 1 st deg murder. Appeal dismissed Not enough to lead evid that a grp has certain beliefs that could affect the gravity of the provocative conduct in issue and that the A is a pt of that grp (even if the comment was understood as an admission of infidel, that couldn‟t amt to an insult capable of causing an ord person to lose self ctrl). Provocation doesn‟t shield an A who hasn‟t lost self ctrl, but instead acted out of a sense of revenge or culturally driven sense of the approp response to someone elses misconduct (distinction b/w homocide committed by one who has lost ctrl and homicide committed by one whose cultural and religious beliefs lead him to believe that homicide is an approp response – only former engages def of provoc, latter provides motive for murder). The “ordinary person” and religious and cultural characteristics: “it is arguable that as a matter of crim law policy, the “ord person” cannot be fixed w/ beliefs that are irreconcilable w/ fund cdn values. Crim law may simply not accept that a belief sys which is contrary to those fund values should someone provide the basis for a partial def to murder” “Ord person” can’t have beliefs that are irreconcil w/ fund cdn values.

R v Parent [2001] (SCC), pg 985

Facts

A and wife inv in div settlements, had a sale for shares, A present, had loaded gun, wife told him that she was going to wipe him out completely, A felt hot flush, and 85

shot, claims he didn‟t know what he was doing any more and didn‟t intend to kill her. Trial: charged w/ 1 st deg murder, argued should be red to manslaughter b/c provoc, found guilty of manslaughter. CA: upheld verdict. Issues Held Ratio

Rule

Allowed appeal, ordered new trial on second deg murder. Anger can play a role in reducing murder to manslaughter in connection w/ the defence of provocation, but anger isn‟t a stand alone defence, it may form pt of the defence of provocation when all the reqmts of that defence are met. Intense anger alone is insuffic to reduce murder to manslaughter.

R v Camer on (1992) (Ont CA), pg 989

Charter challenge to statutory defence of provocation – not unconstitutional Facts A convicted of 2nd deg murder, he appealed, arguing that the stat def of provoc contravened s.7 and 11d of the Charter in that is it premised in pt on an objective std, Ont CA dismissed constitutional challenge. Argues that def of provoc negatives an essential element of the mens rea reqmt for murder, since provoc premised in pt on an objective std, it can‟t stand in light of the authorities which hold that liab for murder can‟t be det by ref to an objective fault std (Martineau). Issues Held Consti challenge dismissed. Found to be constitutional. Ratio The defence doesn‟t detract from or negative the fault reqmt for murder, but it is only available once proven BARD that A committed murder. S.232 doesn‟t modif the stat defn of murder so as to elim an element of the offence re qd by s.7. S.11d: s.232 doesn‟t put any burden of proof on an A to disprove anything essential to the establishing of his culpability, onus is on the crown to negate provoc beyond a reasonable dbt Rule Statutory defence of provocation not unconstitutional.

b) Voluntary intoxication 

Partial defence to murder, may reduce murder to manslaughter b/c murder is specific intent crime ( Daley – need an advanced degree of intoxication)

c) Cumulative Effect on Intent 

“rolled” up charge – asks the jury to consider the cumul effect of all the factors on whether the Crown has proved the intent reqd for murder is arguing that there wasn‟t the mens rea reqd for murder o

**see March 25 notes for homicide review problem** R v Nealy (1986) (Ont CA), pg 991 (Cumulative effect on intent)

Facts

Issues

Nealy stabbed and killed Casimiri outside a bar, had been drinking with him and his gf earlier in the evening, after Casimiri repeatedly made comments about Nealys gf, Nealy told him to be quiet, pushing and punching started inside, moved outside, Nealy got knife from gfs purse, outside fighting continued, Nealy stabbed casimiri 3x, killed him. Should trial judge have instructed juryon cumul effect that the consumption of alcohol and the fear and anger that were experienced by Nealy as a result of his dispute w/ the deceased might have had on N‟s ability to form the requisite intent for 86

Held Ratio

Rule

murder? Appeal allowed, direct a new trial. Not necessary to compartmentalize the offences. Just have to make sure A has the intent – w/ cumul effect, want to give jury the opportunity to take it down if they feel that there is some reason to (worried abt fixed penalty). Issue of whether excessive force in SD could reduce a charge of murder to manslaughter: accepted that it could in R v Clow (Clow, Ont CA held the trial judge erred in not instructing jury on the cumul effect as it might rel to the requisite specific intent to cause death of bod harm likely to cause death); rejected in R v Brisson (SCC) (more binding??). HOWEVER: all above authorities emph imptce of issue of intent and indic that all the circumstances surrounding the act of killing must be taken into accnt in det whether or not the A had the intent reqd for the commission of murder. ALONE, the evid may not give rise to RD as to whether there was provocation, or whether A lacked abil to form that intent, but VIEWED CUMUL, the evid might be impt in det issue of intent. Not every case reqs direction on cumul effect – case by case basis.

**see notes on partial defences to murder in March 25 notes** Parties to a Crime

Parties to offence 21. (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Common intention (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. 1. Aiding and Abetting Du nl op and Syl vester v R [ 1979] (SCC), pg 1017

Facts

Issues Held Ratio

Rule

Appellants were tried and convicted on charge of rape (by jury), C had been raped by a grp of ~18 people, C id‟d Dunlop and Sylvester as two of the people who had raped her.

Mere presence at the scene of a crime isn‟t suffic to ground culpability (passive acquiescence isn‟t enough) – tf this turns on the actus reus reqmt. R v Coney (LEADING CASE) decided that non-accidental presence at the scene of the crime wasn‟t conclusive of aiding and abetting (“where presence may be entirel y accidental, it isn‟t even evidence of aiding and abetting”). To constitute an aider and abettor, some active steps must be taken by word, or action, w/ the intent to instigate the principal(s). Mere presence at the scene of a crime isn’t suffic to ground culpability (passive acquiescence isn’t enough) TEST: Distinctn b/w prior knowledge and accidental presence: 2 reqmts must be 87

proven before A can be convicted of of being a party by aiding & abetting: abetting: 1) that he had knowledge that the principal intended to commit the offence; 2) and that the A aided and abetted him. (where there is no knowledge that an offence is to be commited, the presence of an A at the scene of the crime can‟t be a circumstance which would be evidence of aiding and abetting) If the spectators furnished encouragement and their mere presence ensured against the escape of the victume – victume – this this is more than “mere presence” (there must be an intention to encourage and encouragement in fact).

R v Lau r encell e (1999) (BCCA ), pg 1026 1026

Facts

Issues Held Ratio

Rule

A is appealing conviction on a charge of unlawful confinement. McCarron was kidnapped by 4 men, they used knives to force him to go w/ them to a nearby house where he was kept from f rom Sat evening until the following Tuesday. The A first had knowledge of him around 11:30pm on Sat evening. Appellant had c ontact w/ the C. Can Laurencelle be convicted of aiding and abetting? Appeal allowed, set aside conviction, enter acquittal. In this case: no basis for asserting that the appellant had sole ctrl and no basis as a matter of common sense for suggesting that she had any effective way of requiring McCandless and Biron to leave (also had no knowledge that the kidnapping was going to occur). Thus this case is distinguished distinguished from cases where it was found that ctrl can lead to a person being found a party by allowing premises of automobiles to be used in an unlawful manner. manner. Acts of kindness don‟t amt to aiding and abetting. abetting. Can’t be convicted for mere passive acquiescence and she had no duty to leave her home.

[2010] (SCC) (pdf doc) R v Br iscoe iscoe LEADING CASE on mens rea Facts A went w/ grp to golf course, watched and helped (held onto deceased for a short time), as she was raped and murdered. Trial: A acquitted, a cquitted, found that the actus reus for being a party was proven, but not mens rea b/c B didn‟t have the requisite knowledge that L intended to commit the crimes. CA: overturned acquittals & ordered new trial – trial – trial trial judge failed to consider willful blindness. Issues Does the mens rea component include willful blindness? blindness? Held Appeal dismissed Ratio The mens rea for aiding and abetting means you must have the intention of aiding someone to commit the crime and you must know abt the type of crime, or you can be willfully blind (this counts as knowledge). knowledge). This doesn‟t extend extend to recklessness. The crown must prove that the A intended to assist the principle in the commission of the offence. It isn‟t reqd that the A desired that the offence be successfully commited. For knowledge, in order to have the intention to assist in the commission of the offence, the aider mustknow that the principal intends to commit the crime, although he or she need not know precisely how it will be committed. The doctrine of willful blindness is disctinct from recklessness and invs no departure from the SUBJECTIVE inq into the A ‟s state of mind which must be undertaken to estab an aider or abettor‟s knowledge. Wilful blindness doesn‟t define the mens rea reqd for partic offences. Rather it can substitute for actual knowledge whenever knowledge is a component of the mens rea. Willful blindness occurs when the A sees the need for further inquiries but chooses not to make them. 88

Rule

The accused must INTEND to aid the perpetrator and you must know abt the type of crime, or you can be willfully blind.

R v Si Si mpson (1988) SCC, pg 1029 (note)

s.21(2) case Ratio This case limits the application of s.21(2). Unlawful purpose must be diff from the crime you are trying to commit. Tf is the common purpose is robbery, and the offence actually commited is murder, can use this s. If the common purpose is robbery, and the robbery is commited, can‟t use this s. This s. extends crim responsibility when the offence committed is outside what was intended and only applies when the offence was actually commited. Rule The unlawful purpose in s.21(2) must be diff from the offence charged.

[1990] (SCC), pg 1030 R v Logan [1990] s.21(2) case Facts The accused were convicted of attempted murder. During a robbery a person was shot and severly injured. Neither A did the shooting. Logan boasted of being involved in planning the robberies. A is challenging const of s.21(2) in gen, and in partic, of the objective component component of the s (ought to have have known) Issues Is there a min deg of mens rea reqd as a POFJ before one can be convicted of offence under s.21(2)? Held Unconst – Unconst – declare declare inoperative inoperat ive the words “or ought to have known” when considering under s.21(1) whether a party to an offence where it is a const reqmt for a conviction that foresight of the conseq be subjective. Ratio For a few offences (murder incl), the POFJ req that a conviction can‟t stand unless there is proof BARD of a min deg of mens rea and that legislation provding provding for any lesser deg viols the Charter and is inoperative ( Vaillancourt ) Martineau: it‟s a const reqmt that noone can be convicted of murder unless crown proves BARD that the person person had subjective foresight of the fact that the death of the victim was likely to ensure (b/c of stigma and severe penalty). Elements of attempted murder are same as murder. Stigma and pen same. Tf the mens rea for attempted murder murder can‟t, w/out restricting s.7 of the Charter req of the A less of a mental element than that reqd of a murderer under s.212(a)(i) – s.212(a)(i) – subjective foresight of the conseq. S.1 analysis fails b/c doesn‟t satisfy proportionality test b/c it unduly impairs A‟s rights. Note For most crimes still have objective s. to 21(2). The only instance where it doesn‟t apply is if you are trying to link the offence to an offence that has const reqd subjective mens rea (murder, attempted murder, war crimes). Tf in every other sitn, even robbery, which is subjective mens rea, but not CONST reqd, then “ought to have known” is ok. Also: Stuart thinks its arb to have the perpetrator judged on a subjective test, but accessory judged on objective test. Rule

R v Portil Portil lo (2003) (Ont CA)

Ratio

Even if the jury were satisfied that both appellants were inv in the killing, they may be unable to det whether one, one, the other, or both participated participated in the strangling of the the deceased Here, potl liab under s.21(1) might be explained along the following lines: The liab of each A under s.21(1) must be det separately 

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To convict an A of murder or manslaughter, the jury must be satif that the A participated in the killing killing Participation means doing something that caused the death of the dece ased or doing something for the purpose of helping another person to do something that caused the death of the deceased If the jury is satif that an A participated in the killing as desc above, it is unness for the jury to det the exact nature of that participation If the jury is satisfied that an A participated in the killing of the deceased, he is guilty of either murder or manslaughter. He is guilty of murder if he did so w/ the ness blameworthy state of mind and manslaughter if the Crown hasn‟t proved the blameworthy state state of mind. The blameworthy state of mind consists of intending that the deceased should be killed; or intending that he should suffer bodily harm of a kind likely to result in death and yet proceeding despite knowledge of that risk ( R v Kirkness, 1990 SCC). Liab for murder under s.21(2) reqs the Crown prove BARD: The A was a party to a common design to steal from the deceased; Another person who was a party to that same common design commited murder as defd in s.229(A) in the course of carrying out the theft; and The A knew that murder was a probable conseq of carrying out the common design to steal form the deceased 

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Rule

2. Counselling – Counselling – this this is a completely separate section Person counselling offence 22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards afterwards a party to that that offence, offence, the person person who counselled counselled is a party to that offence, offence, notwithstanding that the offence was committed in a way different from that which was counselled. Idem (2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling. Definition of “counsel” (3) For the purposes of this Act, “counsel” includes procure, solicit or incite. Although “counsel” could have the ord meaning simply of advising, for c rim law purposes it must be lim to cases of actively inducing ( R v Sharpe) The external and fault elements of the offence are: Actus reus for counseling is the delib encouragement or active inducement of the commission of o a crim offence Mens rea consists in nothing less than an accompanying intent or conscious disregard of the o substantial and unjustified risk inherent in the counseling: that is, it must be shown that the A either intended that the offence counseled be committed, or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the A‟s conduct ( R v Hamilton Hamilton) W/ this section, the offence has to actually be committed 

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Note: s.22 doesn‟t really really apply to cdn law b/c we are a re into guilt by assn, grp responsibility 3. Accessory After Fact

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R v Duong : knowledge could be extended to willful blindness R v Shalaan: it isn‟t ness to convict a principal in order to convict an accessory (this was affirmed by the SCC)

Group Responsibility, Corporations, Gangs and Terrorists (no direct questions on this) 1. Corporations

a) Common Law Canadian Dredge and Dock Co v R [1985] 1 SCR 662 

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Leading case on identification doctrine under which cdn cts for many yrs imputed fault, incl mens rea to corporations This case conc appeals of several A‟s against CC convictions for conspiracy to defraud SCC rejected the agmts that the companies weren‟t guilty as the bids had been conducted by managers acting in fraud of the companies or contrary to corporate instructions SCC confirmed the convictions and asserted and justified the identification doctrine for holding corporations responsible for mens rea offences A) abs liab offences: Corporations and indiv persons std on the same footing here, it is a case of automatic primary o responsibility B) offences of strict liab: For these offences guilt shall not be predicated upon the automatic breach of the statute, but o rather upon the establishment of the actus reus, subject to the defence of due diligence It matters not whether the A is corporate or unincorporate o C) offences requiring mens rea At CL a corporate entity couldn‟t generally be convicted of a crim offence o o As a corporation could only act through agents, there are only three approaches whereby crim intent could be said to reside or not reside in the corporate entity 1) total vicar liab for the conduct of any of its agents whatever their level of employmt  or responsibility so long as they are acting w/in the scope of their employmt 2) no crim liab unless the crim acts in question have been commited on the direction or  at the request, express or implied of the corporation as expressed through BOD 3) median rule, whereby the crim conduct, incl the state of mind, of employees and  agents of the corporation is attrib to the corp so as to render the corp crim liab so long as the employee or agent in question is of such a posn in the organization and activity of the corp that he or she reps its de facto directing mind test: the identity of the directing mind and the company coincide so long as the actions of the former are performed by the manager w/in the sector of corporation operation assnd to him by the corporation gen the directing mind is also guilty of the crim offence in question the ct in this case, decided that there could be crim responsibility on the identification doctrine whether or not there had been formal delegation, awareness of the activity in the BOD or offices of the company, or express authorization or prohibition. However, the ct also noted that the identification doctrine couldn‟t be used where the crim act of the directing mind had been totally in fraud of the corp or where the act was intended to or did result in, benefit exclusively to the directing mind 

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b) New CC provisions for organizations (2003):  

2 avenues to crim responsibility, s.22.1 and 22.2 the responsibility of the organization is no longer dep on estab fault in the “directing mind” but extends to a much lower level

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2. Criminal Organizations:

a) biker violence: 

bill c-95, new offence, “participation in a criminal organization” (didn‟t criminalize mere membership in a crim org)

b) participation in criminal organizations (gangsterism) (1997) 

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s.467.1(1) of participation in a crim org, extended crim responsibility beyond the already wide net for accessories or conspirators s.467.1(2) there must be a mand conseq sentence an dbl criminality for a participant in a crim org who is a party to an offence committed in assn w/ the org it could be applied to low level members of a highly org gang, to those only loosely assoc in crime and to those who have never been violent. Only one of the grp has to have committed a series of offences w/in 5 yrs. There is no reqmt of gang continuity participation in org crime was committed by proof of: 1) an assn w/ an informal grp of 5 or more o 2) knowledge that at least one of the grp had been committing serious crimes w/in the last 5 yrs, o and 3) being a party to an indictable offence in assn w/ the grp o the reqmt of being a party to an offence does req proof of some indiv act and personal fault. However this could merely be that reqd for liab as an accessory rather than perpetrator

c) fiasco of Manitoba warriors trial: 

in this trial, the fact that the new anti-gang measures weren‟t narrow became clear

d) widening gangsterism laws (2001): 

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bill c-24 widened the crim org defn and the anti-gang offences in 3 ways: o 1) reducing the # of ppl reqd to constitute a crim org from 5  3 2) removing the reqmt that at least one of the members be inv in committing crimes for the org o w/in the past 5 yrs, and 3) extending the scope of offences which define crim orgs, prev lim to indictable offences o punishable by 5 yrs or more, to all serious crimes the bill creates 3 new offences: s.467.11(1), (2), (3), 467.12(1), (2), and 467.13(1), (2) from these, can see that knowledge is expressly not reqd to be proved of the crime to be o facilitated or committed or of the id of the members of the crim organization charter challenges to the new scheme based on vagueness, overbreadth and lack of fault were o rejected in R v Lindsay (2004) (Ont SC). The ct however read into the knowledge reqmt a reqmt of proof of knowledge of the composition of the crim org although not of the identity of those in the grp in R v Accused No 1 (2005) (BCCA), new defn of crim organization wasn‟t found to be too o vague or broad

3. Terrorist Grps

a) 9/11 attacks b) defn of terrorism 

the gov-in-council is now empowered to name by regulation a list of terrorist entities, based on a determination by the govt, in priv and w/out public debate and based merely on reasonable grnds rather

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than proof in a ct of law. There is strong agmt that this power viols the presumption of innocence in s.11(d) which reqs proof beyond reasonable doubt of essential elements before a fair and indep tribunal c) Broad new offences:  

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being branded as a terrorist in one of these ways is not an offence defn in s.83.18(1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. o have a fault reqmt of actual knowledge plus a purpose of enhancing the terrorist grp‟s ability to facilitate or carry out a terrorist activity s.83.18(2) (2) An offence may be committed under subsection (1) whether or not (a) a terrorist group actually facilitates or carries out a terrorist activity; o (b) the participation or contribution of the accused actually enhances the ability of a terrorist o group to facilitate or carry out a terrorist activity; or (c) the accused knows the specific nature of any terrorist activity that may be facilitated or o carried out by a terrorist group. S.83.18(3) Participating in or contributing to an activity of a terrorist group includes (a) providing, receiving or recruiting a person to receive training; o (b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or o in association with a terrorist group; o (c) recruiting a person in order to facilitate or commit (i) a terrorism offence, or  (ii) an act or omission outside Canada that, if committed in Canada, would be a  terrorism offence; o (d ) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and note: clause (d) estabs guilt by assn wherever you are in the world and whatever you are doing w/ the wide ways you can be branded as a terrorist, there are good agmts that such provisions viol s.7 charter provisions reqing meaningful act and fault remts

d) three year review 

major prob w/ a broad defn of terrorism and broad offences is that this can be used for racial profiling

Sentencing

R v Priest (1996) (Ont CA)  

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A was youthful first offender, convicted for breaking and entering Martin JA: even where break and enter is prevalent in a community, it is a circumstance to be taken into consideration, but not the exclusive consid Youthful first offender: o Primary objectives: indivi deterrence and rehab Best achieved by a suspended sentence or probation or a v short term of imprisonment followed o by a term of probation The sentence should constitute the min ness intervention that is adeq in the partic circumstances o S.718 and 718.2 of CC, (c) says that separation of offenders from soc is an approp objective of o sentencing “Where ness”, (d) directs that an offender shouldn‟t be depriv of lib “if less restrictive sanctions amy be approp in the circumstances, (e) all available sanctions other than imprisonmt that are reasonable in the circumstances should be consid for all offenders, w/ partic attn to the circumstances of abor offenders Proportionality: 93

Fundamental principle: s.718.1: a sentence must be propor to the gravity of the offence and the deg of responsibility of the offender Has a constitutional dimension, is a sentence is so dispropor that is it excessive as to  outrage stds of decency, it will viol the consti prohib against cruel and unusual punishment of s.12 of Charter Sentences should be imposed in a manner that positively instills the basic set of communal values shared by all cdns as expressed in the CC o

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R v Gladue [1999] (SCC) (discusses the correct approach to applying s.718.2) 

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Specific reference to the circumstances of abor offenders was meant to respond to the overrep of abor ppls in prisons Gen the more serious and violent the crime, the more likely it will be as a practical matter tha the terms of imprisonmt will be the same for similar offences and offenders, whether the offender is abor or not

3. Tools of Sentencing Discharges: 

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R v Derkson (1972) (BC PC): it couldn‟t be in the best interests of an A and not contrary to the public interst to approach all unremarkable cases of this sort w/ a uniform policy of a discharge; to do so would be seen as condoning the offence and inviting a further breach. The discharge should be applied frugally. R v Fallofield (1973) (BCCA): concl respecting s.730: 1) s. can be used for any offence except those w/ min punishmt o 2) s is for the commission of an offence, nothing in the language lims it to a technical or trivial o violation 3) two conditions precedent to the exercise of the juris: i) it must be in the best interests of the A o that he should be discharged either entirely or conditionally 4) ii) the grant of discharge must not be contrary to the public interest o o 5) i) presupposes that the A is a person of good character w/out previous conviction, that it isn‟t ness to enter a conviction to deter him from future offences or to rehab him, and that the entry of a conviction may have signif adverse repercussions 6) ii) public interest condition has weight in determining, but it doesn‟t preclude the use of o discharge provisions 7) s.730 shouldn‟t be used as an alt to probation or suspended sentence o o 8) s.730 shouldn‟t be applied routinely to any partic offence, will result in lack of uniformity granting of a discharge doesn‟t mean that the A has no crim record, they are merely deemed not to have been convicted of the offence a pardon vacates a record legal effect of a discharge: Q: have you been convicted?; A: No o Q: do you have a crim record?; A: yes (unless time period for non-disclosure has arrived) o Legal effect of a pardon: Can answer no to both Q‟s o

Fines 

S.734 of CC

Probation  

S.731 of CC R v Sangster (1973) (Que CA): shouldn‟t indicate to an A the precise sentence which might be imposed on him should he fail to observe the conditions set out by the ct 94

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S.732.1: the ct may prescribe, besides the stat conditi ons listed, “such other reasonable conditions as the ct considers desirable for securing the good conduct of the A and for preventing a repetition by him of the same offence of the commission of other offences” R v Ziatas (1973) (Ont CA): probation order can‟t be imposed as an addnl punishment R v Gladstone (1973) (BC Co Ct): a condition of probation should be reasonable and should be designed to secure the good conduct of the A and to prevent a repetition by the A of the same offence or the commission of other offences. Primary purpose of a condition of probation should be rehab not the imposition of punishment. R v Palowski (1971) (Man CA): s.737(2)(h) didn‟t authorize the imposition of punishment by means of a fine nor a reqmt to pay costs R v DeKleric [1969] (BCCA): If the circumstances require a fine, it should have been imposed as a fine. If the circumstances reqd a condition of suspended sentence, restitution or reparation to the injured parties w/in the meaning of the provisions of the CC which allow such a condition to be imposed as a term of the suspended sentence, then it should have been done that way

Restitution  

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S.738-741.2 authorize order of restitution R v Dashner (1974) (BCCA): restitution or reparation shouldn‟t be made a condition of a pro bation order unless the ct is satisfied that the convicted person is able to pay and that the ordered amt reps “actual loss or damage sustained” R v Groves (1977) (Ont HC): if parl intended to confer upon the crim cts a remedial power to order an offender to compensate a victim for pain and suffering, it would have done so Ss.725-727 of CC provide for compensation

Community Service S.732.1(3)(f) provides for condns of commun service not exceeding 240 hrs over 18 mos Intermittent Sentence S.732, available for sentences not exceeding 90 days. If an intermittent sentence is imposed, then the ct must order probation Imprisonment Where the A is convicted of more than one offence and receives more than one prison sentence the judge has a discretion to declare that the sentences be served concurrently or consecutively (s.718.3(4)) Conditional Sentences S.742-742.7 If a ct has imposed a sentence of imprisonmt of <2yrs, these sections permit a ct to order that the offender serve the sentence in the community where the ct is satisfied that such an order wouldn‟t endanger the safety of the community 

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R v Proulx 2000 SCC 5 

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1) bill c-41 (cond sentence pt) enacted to reduce reliance on incarceration and inc use of principles of restorative justice in sentencing 2) conditional sentence diff from probationary measures. Probation is prim a rehabilitative sentencing tool o Conditional sentences incl both punitive and rehabilitative aspects. Gen incl punitive conditions o that are restrictive of the offenders lib 3) only those offences w/ min term of imprisonmt are excluded from cond sentencing regime 4) purposive interpretation of s.742.1(a) should be adopted 5) Sole reqmt is that the duration and conditions of a conditional sentence make for a just and approp sentence

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Criminal Law Outline NCA

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