Criminal Law Offences Summary
Possession Actus Reus Manual Handling (physical possession)
Mens Rea Knowledge (of your physical possession) (intent to exercise) Control over the item
Possession s. 4(3)(a) (when actus reus loo!s li!e mens rea) ") Manual handling of a thing# $) must %e co&existent with !nowledge of what the thing is# and 3) %oth these elements must %e co& existent with some act of control.
R. v. Beaver 'acts eaver has cocaine# %ut claims he thought it was icing sugar Ratio: Court defines possession “To constitute possession within the meaning of the criminal law there is manual handling of a thing! it must "e co#e$istent with the %nowledge of what the thing is! and "oth these elements must "e co#e$istent with some act of control &outside pu"lic duty'( )hen these three elements e$ist together! * thin% it must "e conceded that under s(+&,'&d' it does not then matter if the thing is retained for an innocent purpose R. v. Marshall 'acts eenager gets a ride with others who possess mari*uana. hey throw weed out of car when police signal them# %ut after leaving the police station# retrieve it. Marshall Marshall had passed a pipe containing mari*uana. He did not smo!e it. +ssue ,as Marshall in possession of the mari*uanaHeld He was not in possession. & rosecutor rosecutor claim claimss that he had possessio possession n of the the pipe pipe when he he passed passed it from one person person to to another & /udge says says it it was an automati automaticc reflex reflex to pass pass it it across. across. +t +t was so instant instantaneous aneous or or spontaneou spontaneouss that not intended Ratio: .lements identified: & “ACT/AL- or “manual- possession o Manual handling &physical possession' o 0nowledge &of your physical possession' *ntent to e$ercise Control o1er the item o 2o1erned "y section +3&a' o 0ecision held Marshall had !nowledge# %ut no control# and no consent to the presence of the mari*uana# and no power to control the persons in possession. 1lso not guilty of aiding 2a%etting
Constructi1e Possession Actus Reus Manual handling %y one
Mens Rea Knowledge of that manual handling %y defendant (and the possessor)
Possession Actus Reus Manual Handling (physical possession)
Mens Rea Knowledge (of your physical possession) (intent to exercise) Control over the item
Possession s. 4(3)(a) (when actus reus loo!s li!e mens rea) ") Manual handling of a thing# $) must %e co&existent with !nowledge of what the thing is# and 3) %oth these elements must %e co& existent with some act of control.
R. v. Beaver 'acts eaver has cocaine# %ut claims he thought it was icing sugar Ratio: Court defines possession “To constitute possession within the meaning of the criminal law there is manual handling of a thing! it must "e co#e$istent with the %nowledge of what the thing is! and "oth these elements must "e co#e$istent with some act of control &outside pu"lic duty'( )hen these three elements e$ist together! * thin% it must "e conceded that under s(+&,'&d' it does not then matter if the thing is retained for an innocent purpose R. v. Marshall 'acts eenager gets a ride with others who possess mari*uana. hey throw weed out of car when police signal them# %ut after leaving the police station# retrieve it. Marshall Marshall had passed a pipe containing mari*uana. He did not smo!e it. +ssue ,as Marshall in possession of the mari*uanaHeld He was not in possession. & rosecutor rosecutor claim claimss that he had possessio possession n of the the pipe pipe when he he passed passed it from one person person to to another & /udge says says it it was an automati automaticc reflex reflex to pass pass it it across. across. +t +t was so instant instantaneous aneous or or spontaneou spontaneouss that not intended Ratio: .lements identified: & “ACT/AL- or “manual- possession o Manual handling &physical possession' o 0nowledge &of your physical possession' *ntent to e$ercise Control o1er the item o 2o1erned "y section +3&a' o 0ecision held Marshall had !nowledge# %ut no control# and no consent to the presence of the mari*uana# and no power to control the persons in possession. 1lso not guilty of aiding 2a%etting
Constructi1e Possession Actus Reus Manual handling %y one
Mens Rea Knowledge of that manual handling %y defendant (and the possessor)
Control %y defendant (Chambers)
Consent of defendant (Terrence)
Constructi1e possession s. 4(3)(%) where one of two or more persons# with the knowledge and of the rest# has anything in his custody or possession# it shall be deemed to %e in the consent of custody or possession of all of them
i) Manual handling %y one ii) Knowledge of that Manual Handling %y defendant (and the possessor) iii) Consent of defendant& Terrence iv) Control %y defendant& Chambers R. v. Terrence 5"6738 9CC 5ossession re:uires measure of control on part of person deemed in possession8 'acts 1ccused was pic!ed up in Kingston %y a friend and rode as passenger in stolen car. Charged with theft. +ssue ,hat is the meaning of possession in s.3(4)(%) s.3(4)(%) of the CC- 0oes possession import control as an essential element/udgment here was no evidence that the accused participated in anyway in the actual theft# and nothing to support finding of common common intention. Cites R. v. Colvin and Gladue and Gladue which held that ;!nowledge and consent< cannot exist ex ist without the co&existence of some measure of control over ove r the su%*ect&matter. +f there is the power to consent there is the power to refuse=hey each signify the existence of some power or authority which is here called control# without which the need for their exercise could not arise arise or %e invo!ed. (text# $"$&3) 0ecision 1ccused ac:uitted. RAT*O: A constituent and essential element of possession under s(3&+'&"' of the CC is a measure of control on the part of the person deemed to "e in possession "y that pro1ision in the CC( &te$t! 4,3' R v. Pham 5$>>?8 (@nt. C.1.) 'acts 1ppellant was charged with *oint possession of cocaine for the purpose of traffic!ing contrary to s.?($) of the Controlled Drugs and Substances ct after after her apartment was searched. (she was not present at the time&gone for 3A hours). olice had had the house under surveillance for some time. 'ound cash in a ma!eup %ag and drugs in a purse in the %athroom. 'ound paraphernalia in her room.. +ssue ,hether the appellant had !nowledge and control of the cocaine found in the %athroom and therefore had it in her possession. Held Bvidence suggests that even if Mr. guyen or someone else %rought the drugs into the apartment during Ms. ham
Ratio: .1en if not in immediate possession of an item you may "e found to "e in 5oint possession of it( *f it is found that you had %nowledge! consent and some sort of control o1er the situation( 6ou can ma%e a case for possession on circumstantial e1idence(
Re! Chambers and the "ueen 'acts ,oman owns apartment. f lives there occasionally. Cops find scales and cocaine under %ed found. Eocation of drugs ena%led cops to conclude that she had a sufficient connection to ma!e her have *oint possession. +ssue ,hether she had possession of the drugs. Held Bven if the drugs didn
Constructi1e Agency Possession Constructi1e Agency Possession s. 4(3)(a)(i) has it in the actual possession of custody of another person Actus Reus Manual Handling (%y the other) Control
i) ii) iii) iii) iv)
Mens Rea Knowledge of that manual handling Consent to that other having possession
Manual Handling (% (%y the ot other) Knowledg edge of that manua anuall ha handling Cons Consen entt to that that othe otherr havi having ng poss posses essi sion on Control
Constructi1e location Possession
s.4(3)(a)(ii) if it
Possession of a )eapon 7angerous to the Pu"lic Peace Actus Reus ossession of a weapon
Mens Rea Knowledge of dangerous to the pu%lic peace (9u%*ective or @%*ective--)
R v. #err ($>>4) 9CC
'acts risoner possessing a weapon dangerous to the pu%lic peace %Dc of threat. +ssue ,hat is the mens rea for s. 7?# possessing a weapon dangerous to the pu%lic peace-
astarache /. & +n R v. Cassid$ two elements which the F must prove are proof of possession and proof that the purpose of that possession was one dangerous to the pu%lic peace. his is a specific intent crime since Gthe prohi%ited condu ct must %e committed with an intent to achieve a particular result. +n the determination of p urpose the correct approach is a hy%rid su%*ective&o%*ective test. he trier of fact must first determine what was the accused persons purposeI this is su%*ective. he trier of fact must must then determine whether that purpose was in the circumstances dangerous to the pu%lic peaceI this is o%*ective. GpurposeG is capa%le of two meanings purpose p urpose as intention or purpose as desire. +n %ibbert the the ct concluded that the former shld %e adopted Ga prn who consciously performs an act !nowing the conse:uences that will (with some degree of certainty) flow from it intends these conse:uences or causes them on purpose# regardless of whether he or she desired them.G wo stage purpose analysis ". ,hat o%*ect o%*ect did the the accused accused prn !now wld wld pro%a%ly pro%a%ly flow from from his posses possession# sion# whether he desired it or not- (self&defence doesnt count %Dcit is not smtg that s.o. intends) ". ,as that that purpose# purpose# from from an o%*ecti o%*ective ve standard# standard# dangerous dangerous to the pu%lic pu%lic peacepeaceractical implications of a purely su%*ective test it does not capture those who regularly carry a weapon to prepare themselves for potential attac!. Festore the ac:uittal %Dc he has a defence of self&defence. Eeel /. & Mens rea must %e su%*ective. + wld define Ga purpose dangerous to the pu%lic peaceG as the intent to do harm to persons or property# or %eing rec!eless in that regard. @f course# harm need not actually ensue from necessity and not self&defence. Concerned that the su%*ective&o%*ective approach might slip into a wholly o%*ective approach. He has a valid defence of necessity. 0ecision 1c:uitted %y four separate *udgments. Ratio: 8* thin% the test is still su"5ecti1e! "ut the de"ate in this case is important "9c it shows that su"5ecti1e intent can "e tric%y "9c in accepting the accused at their word! they could "e acuitted and the law would ha1e not enforcea"ility(;
Se$ual Assault s(4<,&,' Actus Reus Act ouching (o%*ective) (Chase) •
Mens Rea Act +ntention to touch (o%*ective standard) (Chase) •
Conditions 9exual ature of the Contact (o%*ective) • (Chase) 1%sence of Consent (su%*ective in the mind of • the victim# doesn
Conditions • o corresponding mens rea
Mista%en =elief in Consent &defence# 1itiates mens rea >Ma5or ?@ '
•
Knowledge of# rec!lessness to or wilfully %lind to the lac! of consent.
9u%*ective %elief in consent# %ut o%*ective element ,ere reasona%le steps ta!en to confirm this consent- ( &wanchuk &wanchuk and Davis) ' 1lso need of an air of reality ( Pa((aohn)
R. v. Chase 5"678 9CC 'acts 0 L Chase. complainant L "? yr old girl. 0 entered girl
'ear & he trier of fact has to find that the complainant did not want to %e touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. he complainants fear need not %e reasona%le# nor must it %e communicated to the accused in order for consent to %e vitiated. ,hile the plausi%ility of the alleged fear# and any over expressions of it# are o%viously relevant to assessing the credi%ility of the complainants claim that she consented out of fear# the approach is su%*ective • Meaning of GConsentG in the Context of an Honest %ut Mista!en elief & 1s with the actus reus of the offence# consent is an integral component of the mens rea# only this time it is considered form the perspective of the accused. he mens rea of sexual assault is not only satisfied when it is shown that the accused !new that the complainant was essentially saying GnoG %ut it is also satisfied when it is shown that the accused !new that the complainant was essentially not saying yes. • he defence of mista!e is simply a denial of mens rea. +t does not impose any %urden of proof upon the accused R v. Robertson# and it is not nec for the accused to testify in order to raise the issue. • Eimits on Honest %ut Mista!en elief in Consent & silence# passivity or am%iguous conduct provides not defence R v. M. EH&0 ma!es reference to s. $3.$(%)# whether the accused too! reasona%le steps is a of fact to %e determined %y the trier of fact only after the air of reality test has %een met. Concurring EH&0 & • C1 also found that Gthe sum of the evidence indicates that Bwanchuc!s advances to the complainant were far less criminal than hormonal.G 1cc to this analysis# a man wld %e free from criminal resp for having non&consensual sexual activity wheneve r he cannot control his hormonal urges. • Complainants shld %e a%le to rely on a system free from myths and stereotypes and on a *udiciary whose impartiality is not compromised %y %iased assumptions. • Nnless and until the accused first ta!es reasona%le steps to assure that there is consent the defence of honest# %ut mista!en %elief does not arise R v. Daigle. Moreover# where a complainant expresses non&consent# the accused has a corresponding escalating o%lig to ta!e additional steps to ascertain consent. 0ecision 1ccused places reliance on his having stopped each time she said GnoG in order to show that he had no intention to force himself upon her. his demonstrates that he understood the complainants GnoG to mean precisely that. he accused did not raise nor does the evidence disclose an air of reality to the defence of honest %ut mista!en %elief in consent. Ouilty. Ratio: The actus reus of se$ual assault is esta"lished "y the proof of three elements: i( Touching # o"5ecti1e i( Se$ual nature of the contact # o"5ecti1e! the R need not pro1e that the accused had any mens rea wrt the se$ual nature of the "eha1iour: R v. Litchfield i( A"sence of consent # su"5ecti1e! determined "y the complainantDs state of mind towards the touching: R v. Jensen( )hile the complainantDs testimony is the only source of direct e1idence as to her state of mind! credi"ility must still "e assessed "y the finder of fact( • Mens Rea # general intent! tE the R need only pro1e that the accused intended to touch the complainant in order to satisfy the "asic mens rea reuirement: R v. Daviault
Fwr! since se$ual assault only "ecomes a crime in the a"sence of the complainantDs consent! the CML recogniGes a defence of mista%e of fact which remo1es culpa"ility for those who honestly "ut mista%enly "elie1ed that they had consent to touch the complainant( The mens rea of se$ual assault contains two elements: i( *ntention to touch ii( 0nowing of or "eing rec%less of! or wilfully "lind to! a lac% of consent on the part of the prn touched( •
R. v. *itch+ield & Crown need not prove mens rea with respect to the sexual nature of his or her %ehaviour. R. v. DGS 5$>>4 @nt. C.1.8 P ctus reus! Mista!en %elief in consent 'acts Bx&%f threatened to send nude pics of gf unless she had sex with him. +ssue 0id the complainant consent to sexual acts in :uestion- +f so# did the threats to send out nude photos vitiate her consentHeld 1ccused guilty of sexual assault. Consent to sex within the meaning of s.$3."(") was never given. he girlfriend did not give consent to sex. o finding of voluntary agreement per s.$3."(") was made at trial# therefore it was a sexual assault. +t is uncessary to consider arguments over vitiating factors %ecause there was never consent to %egin with. o other options appeared availa%le to complainant# so it can
'or example# suppose the complainant and the accused rely on diametrically opposed stories . +n such circumstances# the trial %ecomes a pure :uestion of credi%ility. +f the complainant is %elieved# the actus reus is made out and the mens rea follow straightforwardly. +f the accused is %elieved# or if there is a reasona%le dou%t as to the complainants version of events# there is no actus reus. There is no 3 rd possi"ility of an honest "ut mista%en "elief in consent( Ratio: the defence of honest "ut mista%en "elief in consent is simply a denial of the mens rea of se$ual assault • Citing McLachlin in R v. Esau : “there must "e e1idence not only of non#consent and "elief in consent! "ut in addition e1idence capa"le of e$plaining how the accused could honestly ha1e mista%en the complainants lac% of consent as consent(Profs Comments: his is a tough defence %ecause there are so many %arriers to it. • if victim said no its perilous for accused to proceed further wDo getting firm yes. o o reasona%le steps re:uirement if you don
Pa((aohn v. R 5"67>8 (9CC) (0efence of Mista!en elief in Consent) 'acts Complainant was a realtor# hired %y appellant. 9he claims she was raped and he said it was consensual. 9he ran na!ed from the house wither hands tied to a neigh%ours house upset and police were called. Charges of sexual assault resulted. / refused to accede to defence counsel
consent( The e1idence must appear from or "e supported "y sources other than the appellant in order to gi1e it any air of reality(
Sansregret v. R 'acts he accused# who had %een stal!ing and a%using his ex girlfriend# went to her place with a gun. +t was evident to her that he would !ill her. 9he persuaded him to thin! that she was accepting him %ac! so wouldn
Assault s( 4&,' Actus Reus Act 1pplication of force (direct or • indirect)I or hreat to apply forceI or +ntimidation with weapon (-) Condition ,ithout consent of the victim •
Mens Rea Act intention to apply force# threaten or • intimidate (su%*ective) Condition !nowledge that is without the • consent of the victim.
R. v. Mc*eod 'acts 0uring McEeod
Aggra1ated Assault s( 4J&,' Actus Reus Act 1pplication of force (direct or • indirect)I or hreat to apply forceI or +ntimidation with weapon (-) Conditions
Mens Rea Act intention to apply force# threaten or • intimidate (su%*ective) Conditions
•
,ithout consent of the victim
Conseuences • )ound! maims! disfigures or endangers the life of the complainant
!nowledge that is without the consent of the victim. Conseuences +ntention or rec!lessness towards • these conse:uences •
R. v. -illiams 'acts ,illiams learns that he is H+R positive ? months after dating and h aving unprotected sex with his partner. He didn
Omissions To "e guilty of an Omission: ,( must "e a L.2AL 7/T6 TO ACT • pro1ision creating the offence may spell out the legal duty A separate Code pro1ision may spell out the duty while another • offence creates the offence A common law duty may e$ist • • 7uty to pre1ent ris%s created "y actor 7uty to identify self to police officer who witnesses you • committing an offence A pro1incial statute may create an offence • 4( the omission represents a EA*L/R. TO E/LE*L TFAT 7/T6
3( the offence charged! as a matter of interpretation! e$tends to omissions(
R. v. Browne 5"66 @nt. C.1.8 902C pp. $7>&$7$. ctus reus# @missions
'acts 0 and deceased were drug dealers# deceased swallowed %ag of drugs to avoid detection %ut dies from overdose. 0 said he would ta!e her to the hospital so called a ca% which too! too long. rial /udge held that this constituted an underta!ing within s. $" of CC (0uty of persons underta!ing acts). +ssue 0id the statement to help out constitute an ;underta!ing< within s. $"Held o# accused not guilty. rial *udge erred P in:uiry should have %egun with whether here was an underta!ing# not %ased on the relationship. @nly if there was an underta!ing first could a duty exist. Eegal duty does not (and can not) flow from relationshi( that existed (s. $"?)# only the act or omission itself in s. $". Here there was @ an underta!ing %Dc the mere words indicating a willingness to do an act cannot trigger the legal duty. &o underta!ing under s. $"# so no finding of legal duty# so no %reach contrary to s. $"6. Ratio: There must "e a commitment made and reliance placed upon that commitment( Hothing short of a "inding commitment will gi1e rise to the duty in s( 4,< Thornton v. R. 5"663 9CC8 902C pp.$7>. ctus reus# @missions
'acts 1ccused donated %lood# !new he was H+R positive. Fed Cross detected %lood and put it aside so no%ody infected. 0 charged under s."7> (common nuisance %y unlawful act which includes an omission). / found there was a duty under s.$"A CC %Dc donations involved a medical (rocedure. 1ccused appeals# claims his conduct was not an offence !nown to the law. +ssue 0id the 0
)ider pro1ision ma%es it easier to find lia"ility for an omission( o Fard to imagine a situation where a duty of care will HOT "e found( SCC read S 4, as not only applying to medical professionals and! therefore! applied to ALL people o
agan v. Comm. o+ Metro(olitan Police &1ccused guilty of assault %ecause he had !nowledge car was on the officer
Eailure to Pro1ide the Hecessities of Life &Omissions' S( 4, s. $"? (") 0uty of persons to provide necessaries& Bvery on is under a legal duty (a) as a parent# foster parent# guardian or head of a family# to provide necessaries of life for a child under the age of "A years. (%) to provide necessaries of life to their spouse or common&law partnerI and (c) to provide necessaries of life to a person under his charge if that person (i) is una%le# %y reason of detention# age# illness# mental disorder or other cause to withdraw himself from that charge# and (ii) is una%le to provide himself with necessaries of life. ($) @ffence& every one commits an offence who# %eing under a legal duty within the meaning of su%section (")# fails without lawful excuse# the proof of which lies on him# to perform that duty# if (a) with respect to a duty imposed %y paragraph (")(a) or (%)# (i) the person to whom the duty is owed is in destitute or necessitous circumstances# or (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed# or causes or is li!ely to cause the health of that person to %e endangered permanentlyI or (%) with respect to a duty imposed %y paragraph "(c)# the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is li!ely to cause the health of that person to %e in*ured permanently. Actus Reus 1ct 1re under a legal duty • 'ails to perform that duty • erson who is owed the duty is in •
Mens Rea 1ct +ntentional or rec!less (eterson) •
destitute or necessitous circumstances •
Condition erson who is owed the duty is in • destitute or necessitous circumstances Conse:uences 'ailure to perform endangers lifeI • or Causes or is li!ely to cause the • health of that person to %e endangered
R. v. Peterson 'acts 1nd elderly man is una%le to care for himself# and ended up in %asement of the home with no access to washrooms etc. His son 0enis ran the home# and was charged with failing to provide the necessities of life under (c) that he was under 0enis< charge. 0enis claims that the father was not under his charge. & his has an o%*ective standard of fault don
&
ote he ina%ility of the victim to appreciate his or her need for necessities and the victim
R v. /aglik P 1%orig woman cld not care for her child. Qou shld ta!e into account her lac! of education and age.he o%ligation to provide necessaries is not a%solute and may %e excused# for example# where there is financial ina%ility. 9. $"?($)(%) indicates that the failure to provide necessaries includes not only a failure to do a discrete act %ut also includes a failure to act in an ongoing relationship over a period of time.
=rea% and .nter Actus Reus rea! • 1nd Bnter • 1 lace • 1nd either • i) commit an indicta%le offence therein (347(")(a) ) or ii) have the intention of committing an indicta%le offence therein (347(")(%) )
Mens Rea presumed at common law& • intention andDor rec!lessness
R v. 0ohnson & 1 home under construction. +t had no doors# *ust plywood nailed onto the frames. @ne of the pieces of wood had %een removed %y s.o. (fact found %y *udge). ,hile inside the accused commits a theft and he is su%se:uently charged with s.347 2B. he CME def of %rea! re: that for a %rea!&in to occur there must %e some displacement of any part of a %ldg or its fastenings# incl turning a !ey. s. 3$" of the CC defines G%rea!G a) to %rea! any internal (e.g. windows) or external part or %) to open or close anything that is used to closed and internal or external opening. he accused could not %e convicted %Dc he was faced with an open door. he CME also had constructive %rea!&ins# e.g. chimney. +f you come into an opening that is permanently open then we will treat it as a %rea! in. 1t CME if you left your front door or window open you are inviting others to come into your home and t' there is no %rea! re:. 9. 3$" G%rea!G def a) was written to ma!e up for this. /ohnson relied on R v. Jewel clim%ed into a home through an open window and t' did not %rea! in. he ct applied strict construction and /ewel was not convicted. he 9CC held in /ohnson that %rea!ing into an internal or external opening includes entering wDo %rea!ing. Pple of symmetry & there must %e a mental element corresponding to the physical elements of every offence. he typical mental element is rec!lessness or intention# otherwise it is !nowledge. here is a presumption that every offence re:s as such R v u##anga & 1lthough no mental element is expressly mentioned=mens rea is non the less re: since the inclusion of an offence in the CC a mental element must %e assumed unless it is clearly dispensed with. Hwr# this has %een ignored %y some more recent cases
Traffic%ing s( Controlled Su"stances Act
Actus Reus Act raffic!ing in a su%stance that is • prohi%itedI or 9aying it is prohi%ited even if it is • not.
Mens Rea •
+ntention to traffic in this !ind of su%stance.
R v. CR&1G%T2/ 5"6638 9CC (page ?4") 'acts @n a charge of manslaughter# defence counsel conceded at trial that the in*ection into the deceased
principle advocating a uniform std of care for all# in the result seems to contemplate a std of care which varies with the %ac!ground 2 predisposition of each accused. hus an experienced# uneducated# young person# li!e the accused in F v. ugli!# could %e ac:uitted# event though she doesn
*mporting Harcotics Actus Reus Contrary to $arcotics Control Act
Mens Rea
Act importing Condition 1 narcotic
9u%*ective intention or rec!lessness Knowledge or wilful %lindness as to whether it was a narcotic ( Blondin)
R v. Blondin &,I<,' =C CA 'acts 2 rocedural History +mported drugs in a scu%a tan!. He !new something illegal was inside %ut did not !now that it was canna%is resin specifically. he trial *udge found him not guilty. +ssue +s it sufficient to !now that there was an illegal su%stance inside or is specific !nowledge re:uired/udgment Fo%ertson /1 & trial *udge erred when he instructed the *ury that in order to find londin guilty they must find that he !new that the su%stance was canna%is resin. +t wld %e sufficient to find mens rea in the widest sense. +t is essential to find that he !new he was importing a narcotic. Mes rea :ua this offence is proven %y an intention to commit an offence. he *ury cld have found mens rea if they had found that londin had %een paid to smuggle a su%stance illegally into Cda and either was rec!less a%out what it was or wilfully %lind to what it was# inferring therefrom that he suspected it might %e a narcotic. 0avey C/C & /ury shld convict if they found 1F0 that londin %rought the su%stance into Cda !nowing that it was a narcotic# or %eing rec!less or wilfully %lind. Mc'arlane /1 & +t was wrg of the trial *udge to instruct the *ury that the F must prove 1F0 that he !new it was canna%is resin and it wld %e wrg to instruct the *ury that it is sufficient to for him to !now that it was unlawful to import the su%stance. he *ury shld have %een instructed that the onus on the F was to prove 1F0 that the accused !new the su%stance was a narcotic# although not necessarily canna%is resin. Beaver v. The "ueen ' there is in law no possession wDo !nowledge of the character of the for%idden su%stance. +t wld %e correct to instruct a *ury that the existence of !nowledge may %e inferred as a fact# with due regard to all the circs# if the *ury finds that the accused has rec!lessly or wilfully shut his eyes or refrained from in:uiry as to the nature of the su%stance he imports. 0ecision Rerdict of ac:uittal set asideI trial de novo ordered. Ratio: 0nowledge that the su"stance "eing imported is a narcotic! although not necessarily canna"is resin! is an essential ingredient of the offence( Comments: The ct mi$ed up rec%lessness and wilful "lindness in this case( )ilful "lindness is w9in rec%lessness &Supp ' R. v. Sandhu3 R. v. ,inokurov P oth cases saying that 6ou can HOT su"stitute rec%lessness with wilful "lindness )ilful "lindness relates to 0nowledge not rec%lessness
Criminal Hegligence (s. $"6(")) 9NMM1FQ @' BOE+OBCB @''BCB9
& @rdinary negligence 1 departure from the reasona%le person (careless driving) vs. & enal negligence 1 M1FKB0 departure from the reasona%le person (dangerous driving causing deathDin*ury) vs. & Criminal negligence 1 M1FKB0 and 9N91+1E departure from the reasona%le person (criminal negligence causing deathDin*ury) Actus Reus 1C &1n act or omission &showing wanton or rec!less disregard for the lives and safety of others C@0++@9DC+FCNM91CB9 & failure to fulfill a duty (from another section) C@9BNBCB9 &--- (depends on offence charged)
Mens Rea &O"5ecti1e Standard' 1C & mar!ed and su%stantial departure from the norm (MeneJes)
C@0++@9
C@9BNBCB9 & ---
Penalties include: ". causing death (CreightonI MeneJes) $. causing %odily harm (0esousa) 3. manslaughter (9mithers)
Criminal Hegligence Causing 7eath (s. $$>) Actus Reus 1C 1n act or omission • showing wanton or rec!less • disregard for the lives and safety of others C@0++@9DC+FCNM91CB9 failure to fulfill a duty (from • another section) C@9BNBCB9 causing 0eath •
Mens Rea 1C mar!ed and su%stantial departure • from the norm (MeneJes)
C@0++@9 !nowledge of that duty or wilful • %lindness to it. (QQQ' C@9BNBCB9 • *n5ury must have %een o%*ectively foreseea%le (not death)
R. v. Bartlett 'acts 'riends were driving in two cars down the highway. artlett sprayed %eer on the other car# causing the car to drive onto the gravel# after which the driver lost control of the car and caused a fatal accident. artlett was convicted under section $"($) of the Code of %eing a party to dangerous driving.
+ssue ,as the explanation to the *ury of the difference %etween civil negligence and dangerous driving appropriate/udgment o. Conviction was :uashed %ecause the trial *udge misdirected the *ury in not contrasting dangerous driving with civil negligence and criminal negligence. ew trial ordered for charge of dangerous driving Ratio: 7angerous dri1ing in1ol1es a mar%ed departure from the standard of care of a prudent dri1er! and must "e a danger to the pu"lic ote rof says Eamer is trying to descri%e the reasona%le person having the characteristics of the accused# so he is really as!ing a su%*ective :uestion. Nnder what circumstances are we to put the reasona%le person when ma!ing the evaluation,hat characteristics do we give reasona%le person- rof said we must ta!e into account the situation# %ut not the personal characteristics# except for having the capacity of %eing a%le to appreciate the reasona%le person R v. Mene4es 'acts drag racing & accused %ac!ed off and the other racer continued to drive dangerously# hit a pole and died. He was charged with criminal negligence causing death. +ssue 0id the accused cause the death of his opponent and if so was he criminally negligent/udgment Causation & • +f in prosecution of a criminal driving charge alleging death as a conse:uence# a real connection %Dw the driving misconduct and the death is not esta%lished# as re:uired %y law# the F may %e left simply with discharge of proof for a lesser offence# i.e. dange rous driving. • Causation re:uires a finding that the accused caused the death of another# %oth in fact and in law. 'actual causation is concerned with an in:uiry as to how the victim came to his or her death in a medical# mechanical or physical sense# and with the contri%ution of the accused to that result /ette. • Femoteness may %ecome an issue. +f the accuseds actions are fairly viewed as only part of the history of the setting in which the prohi%ited result unfolded# wDo more# causation is not proven R v. Cribbin. • ,ithdrawal or a%andonment of involvement may %e an intervening act. @rdinarily a%andonment re:uires communication or timely notice of intention to a%andon the common pursuit. +n the a%sence of exceptional circs# smtg more than a mere mental change of intention is re:uired & a Sve act. Criminal egligence & • 'irst & did the accused drive in a manner that constituted negligence or dangerous drivinghen & was it %y reason of criminal negligence or dangerous driving that the death ensued• Criminal negligence amounts to a wanton and rec!less disregard for the lives and safety of other# s. $"6("). his is a higher degree of moral %lameworthiness than dangerous driving nderson v. the "ueen. his is a mar!ed an su%stantial departure in all of the circs from the standard of care of a reasona%le prn -hite v. the "ueen. he word GwantonG means heedlessly# ungoverned# undisciplined R v. -aite5 R v. Shar(. he term Grec!lessG means Gheedless of conse:uences# headlong# irresponsi%leG R v. Shar(.
0ecision MeneJes driving constituted a mar!ed departure from the standard conduct expected of a reasona%ly prudent driver in all of the circs# %ut %Dc he %ac!ed off he was no longer engaged in the race and t' not resp for the death of his opponent. Ratio: Causation # )ithdrawal or a"andonment of in1ol1ement may "e an inter1ening act which "rea%s the chain of causation( *t usually reuires a communication and9or a positi1e act( The mens rea for criminal negligence is higher than that for dangerous dri1ing(
Criminal Hegligence Causing =odily Farm (s. $$") Actus Reus 1C &1n act or omission &showing wanton or rec!less disregard for the lives and safety of others C@0++@9DC+FCNM91CB9 & failure to fulfill a duty (from another section) C@9BNBCB9 & causing odily Harm
Mens Rea 1C &enal negligence
C@0++@9 & mar!ed and su%stantial departure from the norm C@9BNBCB9 & *n5ury must have %een o%*ectively foreseea%le (not death)
7angerous 7ri1ing &s( 4+I&,'' causing =odily Farm &s(4+I&3'' or 7eath &s(4+I&+'' 1CN9 FBN9
MB9 FB1
1C &@perating a motor vehicle
1C &+ntentional# rec!lessness# or penal negligence C@0++@ &Mar!ed departure from the norm C@9BNBCB &@%*ective 'oreseea%ility of ris! or in*uryT
C@0++@ &0angerous to the pu%lic C@9BNBCB (causes) &odily harm
&0eath &@ %*ective 'oreseea%ility of ris! T Femem%er the predicate offence of an unlawful act causing %odily harm (Creighton) R. v. Cham(agne /udgment Charron& 0istinguished %etween dangerous driving and criminal neg ligence %y suggesting that the actus reus element is difference. 9. $"6 re:uires that the act shows wanton or rec!less disregard. +n order for an act to show this the departure has to %e so significant that it is manifest or clear that the conduct was not *ust a departure from the standards of a reasona%le person# or even a mar!ed departure# had to %e a fairly extreme departure from the standards.
Ratio: Mar%ed and su"stantial: the difference "etween dangerous dri1ing and criminal negligence is in 7angerous 7ri1ing you say thats a mar%ed departure from the norm! for Criminal Hegligence you say thats a mar%ed and S/=STAHT*AL departure from the norm( *s a uestion of degree(
R. v. %undal & 0angerous driving 5Eor dangerous dri1ing conduct must "e “mar%ed departure- from standards of the norm 8 'acts 1ccused driving overloaded dump truc! on wet roadI couldn
Careless 7ri1ing &Regulatory offence' Actus Reus 1C &0riving in a careless manner
Mens Rea 1C & @%*ective standard (mere negligence)
C@0++@ & failure to use reasona%le care & conduct deserves punishment
C@0++@ & simple negligence
R. v. Beaucham( 'acts us driver has to par! his %us# mirror on side loose so can
attention to gi1e to other persons using the highway the consideration that a dri1er of ordinary care would ha1e used or gi1en in the circumstancesQ
Manslaughter Sections 434&,'! 43+ Can %e any one of the following (per p 44A 9upp) ". Nnlawful act causing death s( 43+ Culpa"le homicide that is not murder or infanticide is manslaughter so you ha1e to ha1e culpa"le homicide that is not planned and deli"erate and that is not done in the commission of another listed offence(
1ctus Feus 1ct Nnlawful act causing death (where one or more elements of murder is missing)# i.e. did not intend to cause death# intoxication prevented the formation of intention @F Criminal negligence causing death @F rovocation in !illing (s. $3$(")) Condition Human %eing Conse:uence 0eath
Mens Fea resume su%*ective intention
Oross negligence resume su%*ective intention resume !nowledge or rec!lessness resume intention
Smithers v. R 5"678 (@) 'acts Facial remar!s in hoc!ey P !ic!ed P epiglottis malfunction P C@0 aspiration. / Ouilty of manslaughter C1 appealed on the ground that the / did not instruct that the assault must cause death. +ssue ,hether the appellant had committed homicide %y directly or indirectly# %y any means# causing the death of Co%%y and whether such homicide was culpa%le for the reason that it was caused %y an unlawful act. /udgment 'irst ground of appeal doesn
R. v. Smith /ote! +ocus is on 1ntervening Cause 'acts 9oldier !illed another soldier in a fight %y sta%%ing him in the arm and in the %ac!# piercing a lung. @n the way to treatment the deceased was dropped twice# and then he was administered a negligent treatment. He died# although doctors testified that if he had received proper treatment he pro%a%ly would have recovered. +ssue ,as the chain of causation %ro!en %y the negligent treatment/udgment 0eath resulted from the original wound. & +f it is found that at the time of death the would was an operating and a su%stantial cause# then death is the result of the wound# even if another cause of death# such as the negligent care# is also operating. @nly if the second cause is so overwhelming as to ma!e the original would merely part of the history can it %e said that the death does not flow from the wound. Ratio: “To "rea% the chain of causation it must "e shown that there must "e a new cause which distur"s the seuence of e1ents! something which can "e descri"ed as either unreasona"le or e$traneous or e$trinsic R. v. Blaue 'acts /ehovah witness was sta%%ed. 9he wouldn
Murder Sections 44I#43, and 43 1ctus Feus s. $$6(a) Murder sim(liciter 1ct causes death
Condition @f a human %eing Conse:uence 0eath ensues s. $$6 (%) ransferred intent 1ct y accident or mista!e causes death of another (i.e. not the person intended) Condition o a human %eing Conse:uences
Mens Fea
i) means to cause death (CC) ii) means to cause him %odily harm that he !nows is li!ely to cause death (Smithers test) and is rec!less whether death ensues (CC) resume !nowledge or wilful %lindness resume intent
meaning to cause death or %odily harm that he !nows is li!ely to cause death resume !nowledge or wilful %lindness
0eath ensues s. $$6 (c) 1ct 0oes something is li!ely to cause death
Condition 'or an unlawful purpose Conse:uence death c) where the person# for an unlawful o%*ect does anything that he !nows is li!ely to cause death and there%y causes death notwithstanding that he desires to effect his o%*ect wDo causing death or %odily harm (CC)
rec!less of whether death ensues (CC)
he !nows or ought to !now it will li!ely cause death notwithstanding that he does not mean to cause death or %odily harm
resume !nowledge or wilful %lindness resume intention
Once you ha1e a culpa"le homicide then you decide whether or not it is first or second degree: s( 43, &4' first degree when planned and deli"erate see also host of offences in su"sections &4' &(4' that if com"ined with a culpa"le homicide ma%e it murder( s( 43,&<' # all murder that is not first degree is second degree
R. v. /ette 5$>>"8 9CC 'acts 1ccused charged with first degree murder after tying up a 6? year old woman and leaving her to asphyxiate on the %ed. 9he died $4&47 minutes after he left. +n an FCM undercover sting operation# accused told police officer was involved in the ro%%ery and death. 1t trial# he claimed that he had fa%ricated the admission. estified that he had gone alone to the victim
amply supported on the evidence and the *ury was correctly charged on the applica%le legal re:uirements of causation. Concurring on result (E
(9upp @verhead# pg. 47) 6B) Rules that PR&,&/T a break in the chain o+ causation ". hin s!ull rule P hysical L 9mithersI sychological L laue
$. Bvents which are not supervening or intervening such as a. Contri%utory negligence %y victim (1ncio# Creighton) %. 0esperate acts %y victim trying to escape unless %eyond expectation or it is unreasona%le (Fo%erts) c. Fefusal %y victim to %e treated (ingapore) d. oor medical treatment administered in good faith# where accused causes dangerous %odily in*ury for which death results (9mithI s.$$? CC) e. 1cts of innocent agents (Michael) R. v. %arbottle 5"663 9CC8 ctus reus 0etermining causation 'acts 1ccused# together with a companion# forci%ly confined woman. Companion sexually assaulted her while accused watched. 1ccused held down victim
Constructi1e Murder &no longer e$ists' ,11*/C27RT v. R 'acts Raill was going to do a ro%%ery at a pool hall wD his friend. 'riend had a firearm# Raill said +
+ssue +s s.$"3(d) of the CC inconsistent with the provisions of either s. or s.""(d) of CharterHeld Qes. 9ection $"3(d) is of no force or effect. Feasons Eamer / • S.8968) gets ,aill +or all o++ences he commits : all those that would be reasonabl$ +oreseen. So he;d get convicted even though he had no intent : he didn;t shoot. ,hatever the mininum mens rea for the act or the result may %e# there are certain • crimes where# %ecause of the special nature of the stigma attached to a conviction thereof or the availa%le penalties# the @'/ re:uire a mens rea reflecting the particular nature of that crime. 9uch is theft and murder. he punishment for murder is the most severe in our society# and the stigma that attaches to a conviction for murder is
similarly extreme. +n addition# murder is distinguished from manslaughter only %y the mental element wD respect to the death. +t is thus clear that there must %e some special mental element with respect to the death %efore a culpa%le homicide can %e treated as a murder. hat special mental element gives rise to the moral %lameworthiness which *ustifies the stigma and sentence attached to murder conviction. +
Regulatory Offences Strict Lia"ility 7emonstrate that ha1e e$ercised due diligence R. v. Trans(ort Robert # R v. -illiam Cameron Trucking ($>>3) (9.C.C.) 'acts Constitutional challenge# s. and s.""(d) of the a%solute lia%ility offence of 9. 74."(") of the %ighwa$ Tra++ic ct which provides that the owner and operator of a commercial motor vehicle are guilty of an offence where a wheel %ecomes detached from the vehicle while it is on a highway. +ssue ,hether it is open to the Eegislature to create an a%solute lia%ility offence where there is no possi%ility of imprisonment or pro%ation if the defendant is convicted. /udgment o violation of s.""(d) %Dc legislature has defined an offence so as to eliminate an element# or as here# a possi%le common law defence which is not prohi%ited in common law. ot convinced that prosecution for s.74." offence engages the !ind of exceptional state&induced psychological stress that triggers security of the person under s.. 1t most conviction of the offence implies negligence# and the stigma attached does not fall under s.. Ratio: Legislature has a right to create a"solute lia"ility offence where there is no possi"ility of imprisonment or pro"ation if the defendant is con1icted "ecause they ha1e the right to eliminate an element or common law defence and "ecause the stigma attached to such an offence only indicates negligence(
R. v. Burt 'acts urt charged with motor vehicle offence. olice saw motor vehicle causing excessive noise in violation of the highway traffic act. Oave chase and found vehicle. urt found near %ut not in the vehicle. /udgment erson cannot %e convicted for an act that he or she didn
hat the advice was reasona%le hat the advice was erroneous hat the prn relied on tat advice in committing the act 0ecision he offences in must %e considered strict lia%ility offences# %ut the accused have not shown that they exercised due diligence. Moreover# the company did not ma!e out the defence of officially induced error. Ratio: Most regulatory offences are presumed to "e strict lia"ility! re"utta"le "y the language outlined in &ault &te. 'arie or other Parliamentary intention( The defence of due diligence reuires something more than passi1ity on the part of the accused( R v. Tammage 'acts drowning in Mississauga river after the opening of a dam. @nt Hydro was resp for the operation of the damn. hey escaped lia%ility %y directed verdict %Dc the *udge found that the decisions were not authoriJed decisions. his case happened %efore the CC was updated and the *udge found that if they were charged under the new law they wld li!ely %e found lia%le # p. ">?&A. s. $$." ma!es the corp lia%le if the senior officers acted in a mar!ed departure from the standards of the norm. 9. $$.$ if a senior officer# acting in the scope of their duty# had the mental state re:uired or was aware that a non&senior employee has a criminal intent. G9enior employeeG & a rep that plays an important role in the est of organiJation policy or is resp for managing an important aspect of the orgs activities (much more agg than directing mind and will) GorganiJationG & includes any organiJed activity carried on in common with other individuals. (measure of how aggressive they wanted this leg to %e) R. v. Sault Saint Marie 8True crimes reuire %ens rea! strict lia"ility not! a"solute lia"ility no %ens rea or defence; 'acts City %uilt disposal site near stream when filled resulted in waste seeping into the streamI city charged with discharging# or permitting to %e discharged# refuse into the pu%lic waterways causing pollution pursuant to 2ntario -ater Resources ct +ssues 9trict lia%ility or a%solute lia%ilityHeld Charge re:uired proof of mens rea# which on the facts would ac:uit defendant Feasoning 0ic!son C./. P wording of provision implies re:uirement of intention# i.e. causing or permittingI distinction %etween true crime and pu%lic welfare offenceI three categories of offences o distinguish %etween these types the court examines 5t8he overall regulatory pattern adopted %y the legislature# the su%*ect matter of the legislation# the importance of the penalty and the precision of the language used will %e primary considerations in determining whether the offence falls into the third category. R. v. Can Coil Thermal Riolation of s."4 of 2ccu(ational %ealth and Sa+et$ ct 8Eor legislation to sur1i1e court assumes strict lia"ility allowing defence of due diligence; 'acts Bmployee cut off fingers after manager of corporation removed guard from a machine %ecause it created a haJard. +ssue y not providing the defence of due diligence for s."4(")(a)# does the ct create an offence of a%solute lia%ility-
Held @ffence must %e considered as strict lia%ility as a%solute lia%ility# coupled with possi%ility of imprisonment# would violate the Charter I corporation must have right to demonstrate they acted with due diligence. Feasoning Bxcluding specifically s."4(")(a) from due diligence defence# s.3($)# the ct appears to create an a%solute lia%ility offence thus violating s. of the Charter as it may attract term of imprisonmentI to avoid the Charter (and save the provision of the ct ) the section must %e read as creating a strict lia%ility offence leaving the defence of due diligence availa%le to corporation.
0nowingly selling o"scene material without lawful 5ustification or e$cuse 0orgensen v. R. 'acts /orgensen operated adult video store# in which undercover officers found tapes with o%scene material. Charged with !nowingly selling o%scene material without lawful *ustification or excuse# s. "A3($)(a) of CC. / found the material o%scene within s. "A3(7) of CC & +ssue +s presence of !nowingly and its definition re:uire actual !nowledge & Held 9CC reversed the conviction & Ratio: *n order to con1ict for “%nowingly- selling o"scene materials! the Crown “must show more than the accused had a general %nowledge of the nature of the film as a se$ film-( +n other cases# the o%scene material is plainly in view and its contents and !nowledge of the specific nature of its contents can %e assumed to %e !nown. he same cannot %e said concerning films# videos# and other media involving a collection of images and where it ta!es some time and active steps to o%serve and !now< the contents & ote that Crown doesn
Aiding and A"etting &Party to an Offence' s(4,&,' and &4' Actus Reus & 1ctually commits offenceI does or omits to do anything for the purpose of aiding any person to commit itI or a%ets any person in committing it
Mens Rea & +ntention for offence to %e committed & Knowledge that principal intended to commit offence ( %oggan)
&s.$"($) Common intention P ,here 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 who !new or ought to have !nown that the commission of the offence would %e a pro%a%le conse:uence of carrying out the common purpose is a party to the offence R. v. %ibbert 'acts prosecuted for aiding in murder. Hi%%ert as!ed someone to come down from his apartment. hen the person came down and the people with whom Hi%%ert was waiting in front
of the apartment shot him. Hi%%ert claims that he had no choice# as they would have shot Hi%%ert otherwise. Claims the intent was to lure the guy down# %ut that he didn> to lend his car for a ro%%ery# and lending the car. he accused could argue that the purpose is to get the V">> and not to assist in the ro%%ery# to which he is indifferent. & Ratio: Purpose can in1ol1e as%ing what an accused desired in some sections! "ut not in s( 4,&,'&"'( & ote Court stated that in some provisions# it is possi%le that a purpose could %e as!ing what an accused desired R v. Schachter ( police as!ed him if he !new where to get drugs. He too! him to s.o. who sold him drugs. He argued that he was directing the officer to s.o. who cld sell the drugs# not aiding the traffic!er in the sale. Comments Hi%%ert calls 9chachter into %Dc in %ringing the %uyer and seller together you are aiding the traffic!er# %ut that wld mean that any %uyer is also aiding and a%etting in traffic!ing. Dunlo( and S$lvester v. R 5"66 9CC8 'acts
/ttering a Eorged 7ocument
R. v. Currie 'acts he accused is as!ed to cash che:ue for some money. He cashes the che:ue that turns out to %e fraudulently endorsed. & +ssue ,as the accused wilfully %lind& Held / wrong in conviction for wilful %lindness & Ratio: 7octrine of wilful "lindness: “The rule is that if a party has his suspicion aroused "ut then deli"erately omits to ma%e further enuiries! "ecause he wishes to remain in ignorance! he is deemed to ha1e %nowledge( *n other words! there is a suspicion which the defendant deli"erately omits to turn into certain %nowledge& ote court states that constructive !nowledge# or the concept that the accused ought to have !nown something# does not have an application in criminal law and does not constitute !nowledge for the purpose of criminal lia%ility. +t does not %y itself form the %asis for the application of the doctrine of wilful %lindness. & Conviction :uashed
Attempts s(4+&,' Actus Reus & 0oes# or omits to do anything ") Must go be$ond mere (re(aration and %ecome an act of perpetration $) 1ct of perpetration must not be too remote
Mens Rea & +ntend to commit offence charged with (su%*ective)
&s.4A3 outlines penalties for attempts &s.$6 attempted murder max. "4 yearsI and if using a firearm minimum 4 years &+f a summary offence does not have a specific penalty → go to s.7 → A months# or V$>>> R. v. ncio 5"6748 (9CC) 8Attempts are independent offencesK %ens rea is intent to commit offence in uestion; 'acts 1ccused entered home of Kurley with loaded shotgunI Kurley threw a chair at accused as gun dischargedI shot missed %y three feetI the men struggled (wea!ly) until police arrived. +ssue ,hat is the mental element re:uired for proof of offence of attempted murderHeld Mens rea for attempted murder re:uires intention to !illI appeal dismissed. Feasoning Crime of attempt developed separately from offence o f murder. M ens rea for attempts is the intent to commit the offence in uestion! while actus reus is some step towards the commission of offence attempted going "eyond mere preparation . *ntention to commit attempted murder must include intention to %ill P one cannot intend to unintentionally !ill anotherI offence of attempts are defined only in s.$4# while s.4$" outlines penalties# and s.$$$ outlines separate penalty for attempted murder. R. v. Deutsch 5"67A 9CC8'-here to draw the line between attem(ts and (re(aration<
'acts 1ccused operating %usiness recruits women to %e secretaries and they were told they were expected to have sex with potential clients. Charged with attempting to procure women to %ecome prostitutes# %ased on assumption 0 would get some money from women
Held he act to induce women to employment with large financial rewards constituted the actus reus %ecause it was a clear and important step towards the commission of the offence. he inducement or persuasion was the decisive act in the procuring. Ratio: The distinction "etween attempt and preparation comes down to a ualitati1e distinction *t in1ol1es the relationship "etween the nature and uality of the act ! and the nature and uality of the co%plete offence( Must also consider: relati1e pro$imity of the act in uestion what would ha1e "een the completed offence! in terms of time! location! and acts under control of accused remaining to "e accomplished )hen preparation to commit a crime is complete or nearly complete! the Nne$t step done constitutes an actus reus sufficient to esta"lish an attempt R. v. Mathe (/o!e) 'acts 0run! man went up to %an! teller# told her he had a gun and demanded money. ,al!ed out %efore money was handed over telling her it was a *o!e. ,as apprehended later and charged with attempted theft. +ssue ,hether the accused had the re:uisite mens rea for the offence. Ratio: *f transaction amounted to a 5o%e! there was no crime( *f! on the other hand he was serious initially! "ut decided to a"andon the transaction! then there could "e a crime(
O"struction of ?ustice s(,3I&4' Actus Reus & endency test ,ould accused
Mens Rea & 9pecific intent offence must have intended specific conse:uence of o%structing *ustice
R. v. Murra$ 5$>>> @nt.8 'acts aul ernardo
O"struction of Peace Officer Actus Reus & Fesist or o%struct peace officer# or anyone aiding the officer# in execution of their duty
Mens Rea & Must wilfully intend to o%struct
he accused must resist or o%struct a pu%lic officer or a peace officer in the execution of duty or any person lawfully acting in aid of such an officer Moore v. R 'acts Cop went after %icyclist who went through red lightI tried to stop %ut could not get name +ssue ,hether the appellant had an o%ligation to stop at the re:uest of the police officer. Held icycle not vehicle in the CC or the Motor ,ehicle ct so no violation when the appellant refused to give his name to the officer. However officer having seen him commit infraction was under duty to attempt to identify wrongdoer and failure to identify himself did constitute an o%struction of the police officer in the performance of his duties. Ratio: *t is in the pu"lic interest to reuire people to comply with police in1estigations "y pro1iding their names when as%ed( 0issent Fe:uiring someone to give their name in all circumstances goes against the fundamental common&law principles of the presumption of innocence and the privilege against self& incrimination. o duty at common law to identify oneself to police. R. v. %a$es 'acts 1ppellant on motorcycle stopped at police road chec!. @fficers repeatedly as!ed him to remove his helmet so they could inspect it and he refused repeatedly. Bventually arrested him for o%structing *ustice so they could loo! for the safety stic!er on inside of helmet. 1ppellant testified he refused to remove helmet %ecause he %elieved he was under no o%ligation to do so. Held 1ppeal allowed conviction overturned. olice have authority under s.$"A to perform specific activities in the course of detention. ut do not re:uire specific statutory authority for all of their conduct during a s.$"A detention. olice have the right to examine helmets# %ut this power should not %e found under the ancillary powers doctrineI instead they
)ilful Promotion of Fatred 1ctus Feus Act of Accused Communicating statements
&
Conditions ot in private conversation
Mens Fea Act of Accused & 1ct of spea!ing or writing is willed or wilful & +ntent to communicate Conditions +ntent for communication not to %e in private conversation
&
Conseuences 9tatements are such as to promote hatred against an identifia%le group
&
Conseuences wilful
Hote: meaning of wiful a) intentional# not accidental act (applies solely to act of accused) %) the desired result (accused wants to produce result& intention "a and "%) c) the desired or inevita%le result (intention W$) d) the act is intentional or rec!less
R v. Bu44anga 'acts 0
*f they only thought it was possi"le that they would insight hatred "ut they were willing to ta%e that ris% to "ring their community together &rec%lessness! so not guilty'(
R v. %arding P ,ilful promotion of hatred 87o not confuse concepts: wilful "lindness replaces %nowledge! rec%lessness replaces intention; &'acts 1ccused had we% site# phone message and pamphlets promoting hatred towards Muslims. & Paccioco states court confused terms of wilful %lindness and rec!lessnessI the case was dec ided incorrectly %ecause court applied wilful %lindness to intent rather than !nowledge. &Correct application → wilful %lindness replaces !nowledge# rec!lessness replaces intention as to the conse:uences of offence. & 'ens rea reuirement for wilful "lindness! accused must ha1e &,' su"5ecti1e realiGation! &4' of the li%ely result of his actions and &3' deli"erately a1oid actual %nowledge while engaging in or pursuing the acti1ity(
Predicate offences 1ctus Feus 1ct & wtv the underlying act is# i.e. 1ssault or Nnlawful 1ct
Mens Fea 1ct he mens rea for H+9 offence must exist 9u%*ective.
Conditions & not a%solute lia%ility & constitutionally valid & act inherently dangerous
Conditions ----
Conse:uences ----
Conse:uences Must %e @/BC+RB foreseea%ility of %odily harm & simple negligence is enough & for criminal negligence must %e B1E negligence or mar!ed departure
HB 11EQ9+9 ". +s there a predicate offense (ex. assault causing %odily harm)$. +f yes# the (a) mens rea for the underlying offense must exist (for assault)I 10 (%) the %odily harm must %e o%*ectively foreseea%le (the conse:uence).
redicate offences he underlying offence must have a mens rea. Mens rea has 3 prongs intention# rec!lessness# penal neg (ie mar!ed departure)
'or ex# criminal negligence +alls under (enal negligence. +t has an o%*ective mens rea. 'or ex# assault +alls under intention. 9o predicate offences can %e measured o%*ectively from that penal neg standard.
9N p?>7 /H7.RL6*H2 OEE.HC.
COHS./.HC.
s(4<
Assault
causing
=odily harm
s(4I De&ousa
/nlawful Act
causing
=odily harm
o o o
act does not carry a%solute lia%ility act was inherently dangerous constitutionally valid
COHST*T/T*OHALL6 R.7 .L.M.HTS
Mens rea for H+9 offence must exist
s(444&'&a' Creighton
/nlawful Act
must %e @/BC+RB '@FB9BB1+E+Q of %odily harm
causing
7eath
must %e @/BC+RB '@FB9BB1+E+Q of %odily harm 6Mc*achlin 05 Maorit$ = Constitution doesn;t re>uire s$mmetr$)
&
9+MEB negligence (mere departure) for producing conse:uences is enough
Criminal Hegligence 2bective +ault
causing causing
7eath 0eath
&
Must %e B1E negligence or a mar!ed departure Must %e foreseea%le that it can cause in*ury
R v. De Sou4a Eacts: 1ppellant was charged with unlawfully causing %odily harm contrary to s.$A6 5unlawful act causing %odily harm8. He was involved in a fight and threw a glass %ottle which hit a wall. 1 piece of glass from the %ottle in*ured a %ystander. Feld: 9CC L The underlying unlawful act must "e at least o"5ecti1ely dangerous so that "odily harm must "e o"5ecti1ely foreseea"le . 1lthough there must %e an element of personal fault respecting a culpa%le aspect of the actus reus# it was not necessary to esta%lish fault with respect to each conse:uence of an action. 9.$A6 complied with s. of the Charter. R v. CR&1G%T2/ Eacts: 1ppeal accused from conviction of manslaughter. ,ith the deceaseds consent# the accused in*ected cocaine into her forearm. 9he experienced cardiac arrest 2 died. 1ppellant argued that the common law definition of unlawful act manslaughter contravened s. of Charter. Feld: 1ppeal dismissed. he test for the mens rea of unlawful act manslaughter did not violate s. of the Charter. The mens rea reuired is only o"5ecti1e foreseea"ility of the ris% of "odily harm( he standard was that of the reasona%le person in the circumstances of the accused and this standard did not vary with the %ac!ground and pre&disposition of each accused# unless the accused did not have the capacity to appreciate the nature of the ris! which the activity in :uestion entailed.
Ealse Ad1ertising R. v. -holesale Travel Grou( 1nc. 5"66" 9CF8 'acts ravel agency charged with misleading advertising. enalty is only one year# %ut is not determinative# can %e an important factor (if penalty is ? years# can say true crime). +ssue rue crime vs. Fegulatory @ffenceHeld Fegulatory offence. 1vaila%ility of imprisonment as sanction of %reach of a statute is not of a criminal offence. Ratio: Regulatory Offences 1( True Crime : o"5ecti1e of regulatory leg is to protect the pu"lic or "road segments of the pu"lic from potentially ad1erse effects of otherwise lawful acti1itys( o *t in1ol1es a shift of emphasis from the protection of the indi1idual interests and deterrence and punishment of acts in1ol1ing moral fault TO the protection of pu"lic and societal interests( o )hile criminal offences are usually designed to punish and condemn past! inherently wrong acti1ity! regulatory measures are generally direct to the pre1ention of future harm through the enforcement of minimum standards of conduct and care( Regulatory offence protect pu"lic and implement policy o"5ecti1es( Concept of fault is "ased on reasona"le standard and does not imply moral "lameworthiness in same
manner as criminal fault( /se of penalty is not enough to distinguish "etween true crimes and regulatory offences( 'ault element and 9trict Eia%ility negligence. 7oes not need to "e a mar%ed and su"stantial departure( Feasona%leness of accused
Se$ual *nterference R. v. D;ngelo 'acts 0efendant convicted of sexual interference# part o f sentence was "> year pro%ation under s."A". (ot allowed in a pu%lic par! or swimming area where children under "4 could %e present# not allowed employment wor!ing with !ids under "4) ,ent swimming in a pool owned %y a clu%. He was a mem%er through his apartment complex. +ssue ,hether the trial *udge erred in her interpretation and application of the words pu%lic swimming area in s. "A" of the Criminal Code. Held 'acts that should %e considered in determining if there is a pu%lic right to access# either express or implied# include the num%er of people with access# the particular community# ownership# limitations or restrictions on access# the conduct of owners and the manner in which the place is used. Many of the users in all of these categories are children. Ratio: Loo% at language and consider intent of Parliament! i(e( here to protect children( Eor purpose of s(,, the definition of “pu"lic- pool needs to "e e$panded to include pools and pu"lic areas not controlled "y the go1ernment( Purposi1e approach is really what is important in defining “pu"lic- in this case(
Accessory to Murder After the Eact R. v. Duong 'acts Charged with %eing an accessory to murder after fact. 1c:uaintance lin!ed to mo% hit shows up at door and as!s to hide there. 0uong admits to police that friend told him he was in trou%le# %ut that accused said he didn
Possession of Stolen 2oods R. v. ,inokuriv (1 C1) 'acts 1ccused manager of a pawn shop. ought stolen goods# claimed he didn
Eirearms Offences 1ctus Feus 1ct of 1ccused Stores5 dis(la$s5 handles or trans(orts an$ +irearm Conditions 1n a manner contrar$ to regulation5 paragraph ""A(")(g) he governor in council can ma!e regulations respecting the storage# display# handling and transportation of firearms (use 9torage and ransportation Fegulations) Can store a firearm if unloaded rendered inopera%le %y secure loc!ing device and stored in a container or stored in a vault or safe is not stored with cartridges unless they are stored in a container as a%ove
Mens Fea 1ct of 1ccused o mens rea defence of due diligence Conditions Mens rea +or strict liabilit$ o++ence ote failure to advert to a ris! does not form part of the mens rea for this offence (9millie) ote ot a full mens rea %ecause of regulatory aspect# that is that the person is voluntarily operating in a regulated area and is deemed to have notice of the standard of care re:uired
-ithout law+ul e?cuse R v. SM1**1& 5"6678 C C1 'acts Charged with series of firearms offences. 3D? counts alleged violations of s.7A(3). +ssue 0oes s.7A(3) violate s. of the CharterHeld s.7A(3) does @ violate s. of the Charter. Feasons offence in s.7A.3 Qou must store firearms in manner prescri%ed %y reg. +f you don
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•
•
Crown says it
Ratio:
C C1 says this is @ a true crime *ts a uasi regulatory offence • The offence does not reuire negligence as part of the actus reus . • *t does allow a defence of due diligence . he accused may avoid lia%ility if he raises a reasona%le dou%t that he too! reasona%le steps to prevent the event that forms the %asis of the charge from happening. he offence is thus one of strict lia%ility %earing the classic features of a regulatory offence# or penal offence as descri%ed %y 9CC in ,holesale ravel • Court interprets this as strict lia"ility pro1ision and puts onus on accused to show due diligence • Pro+ sa$s! -hat kind o+ mistakes will e?cul(ate strict liabilit$ o++ences it has to be a R&S2/B*& mistake. rof
Counselling Offences s( ++ ACT/S R./S Act 1n act of counselling • •
the deliberate encouragement or active inducement o+ the commission o+ a criminal o++ence
Condition Communicated to another person •
M.HS R.A
either intention or rec!lessness will
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suffice
•
Knowledge or wilful %lindness
+n respect of the commission of an offence Conseuence o crime is committed
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R. v. %amilton Counselling offences 8)hen counselling must ultimately intend for the offence counselled to "e committed; 'acts Hamilton had we%site selling files descri%ing how credit card num%ers in use %y others could %e ac:uiredI charged with counselling offence contrary to s.4A4 %y deceit# falsehood# or other fraudulent means defrauding credit card companies under s.37>(")(%) +ssue 0id accused have the re:uisite mens rea for counselling fraud related to credit cardsHeld 9CC split# / made error in law new trial ordered. Feasoning Ma*ority to satisfy actus reus the materials or statements must acti1ely induce or ad1ocate! and do not merely descri"e! commission of an offence( 1s offence includes rec!lessness# mens rea re:uires an accompanying intent or conscious disregard of the su%stantial and un*ustified ris! inherent in the counselling# i.e. accused intended for offence to %e committed or !nowingly counselled while aware of the ris! that offence was li!ely to %e committed. 7efinition of rec%lessness from &ansregret : “one who! aware that there is danger that his conduct could "ring a"out the result prohi"ited "y the criminal law! ne1ertheless persists! despite the ris%in other words! the conduct of one who sees the ris% and who ta%es the chance- I / erred in ac:uitting accused %y confusing his motive of ma!ing money with his intention. 0issent 1grees correct test for counselling is (") an act of counselling# ($) communicated to another# (3) in respect of the commission of an offence. 1lthough# actus reus not made out as accused did not actively induce commission of offence# and mens rea not satisfied as accused did not necessarily intend to persuade and mere rec!lessness is not enough. Cites R. v. 0aneteas (man threatens to !ill doctor to extort him) despite accused desiring words to %e ta!en seriously# it does not esta%lish that they intend the commission of a crime.
/nlawful Act Causing =odily Farm &predicate offence' R. v. DeSousa 5"66$ 9CC8 7nlaw+ul act causing harm ' The underl$ing o++ence must be constitutionall$ sound 'acts 0 attending a new years party when a fight %rea!s out and a %ottle is thrown %y 0. +t hits the wall# %rea!ing into pieces. 1 fragment hits the victim in the eyeI 0 charged with s. $A6 (unlawful act causing harm). efore trial# 0 %rings Charter motion declaring s. $A6 violates s. . +ssue +s s. $A6 unconstitutional under s. %Dc it does not re:uire su%*ective foresight of all conse:uences which comprise the actus reus of the offence- (o symmetry-) Held / P s. $A6 created criminal responsi%ility for causing %odily h arm %y way of an unlawful act# which may violate a federal or provincial statute (including one of a%solute lia%ility). his contravened charter %Dc of possi%ility of imprisonment. 1ppeal Court P @verturned trial *udge. 9CC o o %e guilty of this crime# accused must have committed underlying unlawful offence. he harm caused must have sufficient causal connection to the underlying
o
o
o
offence committed. Nnderlying offence must contain a mental element# must @ %e an a%solute lia%ility offence. ;unlawful< in s.$A6 imports another aspect to the mens rea element P N in the context of s.$A6 unlawful act must %e at least @/BC+RBEQ dangerous. herefore# s. $A6 has two separate mental element aspects st " Nnderlying offence must have constitutionally sufficient mental elementI mens rea would have to meet constitutional standards. nd $ odily harm caused %y the underlying unlawful offence must %e reasona%ly foreseea%le (o%*ectively foreseea%le).
Ratio:
The %ens rea for the underlying offence &predicate offence' must "e sub)ective The conseuence must "e an ob)ective foreseea"ility of harm S( 4I has neither the stigma or criminal sanctions to reuire a more demanding mental element( So for crimes with lower stigmas and penalties! su"5ecti1e %ens rea is reuired in symmetry for the actus reus( So long as the predicate offence in1ol1es: a dangerous actK is not an offence of a"solute lia"ilityK and is not unconstitutional #TF.H an offence can depend on the predicate offence to find guilt(
Charter Challenges BC Motor ,ehicle = Charter Challenge of 1%solute lia%ility offence 8A"solute lia"ility coupled with imprisonment is unconstitutional 1iolating s(<; 'acts rovince wanted constitutional opinion of new driver licensing law permitting the penaliJation of drivers for having expired licenses whether they had !nowledge of their status or notI province was trying to stop people from driving and denying !nowledge of expired licenses. +ssue 0oes the proposed law create an a%solute lia%ility offence violating s. of the Charter Held Eaw unconstitutional# violating s.# as it coupled a%solute lia%ility (i.e. no defence) with possi%ilityDris! of imprisonment for offenders. Feasoning 'ollowing the principle that the morally innocent should not %e punished# s. prohi%its the imposition of imprisonment in the a%sence of proof of mental faultDmens reaDguilty mind (s. violations may only %e saved under s." in times of war or national emergencies). A"solute lia"ility offences cannot carry with them the ris% of imprisonment! "ecause they ha1e no defence and thus may catch the morally innocent(
7.E.HC.S Boluntariness Kilbride v. Lake 5"6A$ X9C8 Roluntariness# +nvoluntary acts negativing 1ctus Feus
'acts 0 left vehicle with current ;fitness< stic!er on the windshield and when he returned# it was not there# %ut a tic!et was.
+ssue +s the 0 guilty of operating a vehicle without a current warrant of fitnessHeld 0 ac:uitted %Dc event was not produced %y the appellant. Case argued from the a%sence of mens rea# when really it was all a%out the actus reus not ever %eing completed. he tic!et was %ased on strict lia%ility# so !nowledge or intention are irrelevant regardless of what occurred. 0 voluntarily did nothing P the condition occurred without any act %y him# so it was involuntary. @mission %ro!e the chain of causation. Ratio: A person cannot "e held lia"le for an act or omission in the a"sence of a 1oluntary act "y the accused (unless it was done or omitted in circumstances where there was some other course open to him). R v. &wab!
'acts he accused was driving when the police followed him the passenger *umped out and ran into a field. here he was found wD a restricted gun. He plead guilty to possession. he accused was convicted at trial of %eing an occupant of a vehicle !nowing there was present an unlicensed# restricted weapon. 1cc to the passengers testimony the gun was the accuseds and he gave it to him to dispose of. 1cc to the accused the gun %elonged to the passenger and he had no !nowledge of it prior to his arrest. +ssue 1t what point are you acting voluntarily/udgment he F had to prove the coincidence of occupancy of the vehicle and the 1s !nowledge of the weapon. 1lthough the section under which the 1 was charged contained no explicit defence it must %e interpreted so as to exclude the possi%ility of conviction for what would amount to an involuntary act. R v. Th@rou? & the act must %e the voluntary act of the accused for the actus reus to exist. *f one acuires %nowledge of an illegal weapon while in a mo1ing 1ehicle! it cannot "e the law that criminal responsi"ility instantly attaches( There must "e some period of time afforded to the person who has acuired that %nowledge to deal w9 the situation( +t is the conduct of the driver following the coincidence of occupancy and !nowledge that counts# and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle# there is no voluntary act for the criminal law to punish. 0ecision Conviction set aside# new trial ordered. Ratio: *n order for the act to "e 1oluntary the accused must ha1e a choice to either acuiesce to the criminal "eha1iour or remo1e himself from participation .
R. v. -ol+e ("6?) 'acts @wner of hotel hit man with phone after %eing suc!er punched %y him /udgement Court found the accused not guilty as his act was an involuntary reflex olicy overlay this case demonstrates how concept of in1oluntary9refle$i1e act can empower 5udges to permit certain actions deemed trifling andDor not re:uiring of criminal sanction R. v. R$an 'acts shot cler! when spoo!ed Court found accused made immediate unconsidered reaction rather than unconscious reflexive one R v. *7C#1 ("6??)
'acts 1ccused operated car at a speed of ">&"? mph. Made right turn and his car s!idded over onto the left or north side of the road# colliding with another car +ssue 0o these facts render 0 guilty of an offence under s."$?(6) of the Rehicles 1ct- here are many sections under that 1ct that re:uire no mens rea & is this one of themHeld o. 0 1c:uitted. Feasons +t
7efence of Mental 7isorder R v. Demers 5$>>48 9CC ( 0efence of Mental 0isorder) 'acts 1ccused had 0owns 9yndrome and was declared unfit to stand trial on charges of sexual assault. 1s a result he sta$s in the s$stem until either becomes +it to stand trial or Crown +ails to establish a (rima +acie case against him. 1ccused challenged the constitutional validity of the provisions %Dc he is re:uired to have an annual fitness hearing and there are conditions on his li%erty even though his condition will never improve. +ssue ,hether the law was over%road and violated the accused
with this defence# it should have %een %rought in as a defence as determining disease of the mind is a legal and not medical :uestion. ,ould allow appeal and order new trial. Ratio: *n a legal sense! “disease of the mind-: +( Any illness! disorder or a"normal condition ( impairs the human mind and its functioning! e$cluding! howe1er! self# induced states caused "y alcohol or drugs! as well as transitory mental states such as hysteria or concussion( ( disease must "e of such intensity as to render the accused incapa"le of appreciating the nature and uality of the 1iolent act or of %nowing that it is wrong( Appreciating is not 5ust cogniti1e! "ut also in1ol1es emotional awareness( To “%now- the nature and uality may mean merely to "e aware of the physical act( To “appreciate- may in1ol1e estimation and understanding of its conseuences( R. v. 2ommen 5"6648 (9CC) 'acts 9uffering under paranoid delusion that a local union had assigned the victim a commission to !ill her# the accused shot and !illed a young female friend (no motive). 1t trial %rought up defence of insanity. ,as re*ected %Dc at time of !illing accused was li!ely capa%le of !nowing that he was doing wrong according to society
R. v. -hittle 5"6648 'acts 0elusional man told police he had !illed manI police followed directions and found %odyI when in custody accused contacted lawyer who advised him not to tal!I accused refused and continued to tal! anyway feeling he was incapa%le of holding information %ac! /udgement This mental state was not sufficient to constitute in1oluntariness and9or satisfy the test for unfit to stand trial #eldsen v. R. 5"67"8 P Mc+ntyre# /. &Psychopathic personality disorder! while a disease of the mind! alone is not sufficient to allow the defence of mental disorder &Bxemption from lia%ility %y reason of disease of the mind does not extend to one who has the necessary understanding of the nature# character and conse:uences of the act# %ut merely lac!s appropriate feelings for the victim or feelings of remorse or guilt for what he has done even though such lac! of feeling stems from disease of the mind &1%sence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct R v. 2% Eacts: @h went to a neigh%or
Automatism
aulkner 'acts hus%and threatened that he was going to rape wife and said he en*oyed raping their daughters. Felied on profound psych %low that caused her to %ehave in the extreme fashion (!illed him)
Held Court ac:uitted on %asis of full automatism# not M0 automatism. 'elt that % low could cause a lapse or %rea! with reality %Dc it was so profound Rabe! v. R &,IJ' SCC
'acts Feclusive geology ma*or %efriend girl and thin!s they are in a relationship. ,hen she sets him straight he hits her with a roc! that he too! from the la% and then tries to strangle her. Oym& goer and prof intervene. oth victim and accused are ta!en to the nurse. 1ll three o%serve the accused to %e clammy# pale# glassy&eyed# daJed and confused. 9he survived %ut he didnt understand that. +ssue ,as he automatistic or mentally diseased/udgment Fitchie /. & • G1utomatismG of the non&insane variety is defined in R v. # as a term used to descri%e unconscious# involuntary %ehaviour# the state of a person who# though capa%le of action# is not conscious of what he is doing. +t means an unconscious# involuntary act# where the mind does not go with what is %eing done. • Bratt$ v. G o+ /orthern 1reland & he general rule is that it is for the *udge as a of law to decide what constitutes a Gdisease of the mindG %ut that the of whether or not the facts in a given case disclose the existence of such a disease is a to %e determined %y the trier of fact. • 1ny malfunctioning of the mind or mental disorder having its source primarily in some su%*ective condition or wea!ness internal to the accused may %e a Gdisease of the mindG if it prevents the accused from !nowing what he was doing# %ut transient distur%ances of consciousness due to certain specific external factors do not fall wDin the concept of disease of mind. articular transient mental distur%ances may not# hwr# %e capa%le of %eing properly categoriJed in relation to whether they constitute Gdisease of the mindG on the %asis of a generaliJed statement and must %e decided on a case&%y&case %asis. he ordinary stresses and disappointments of life do not constitute an external cause constituting an explanation for a malfunctioning of the mind which ta!es it out of the category of a Gdisease of the mind.G he emotional stress suffered %y the respondent as a result of his disappointment with respect to Miss Y cannot %e said to %e an external factor producing the automatism wDin the authorities# and the dissociative state must %e considered as having its source primarily in the respondents psychological or emotional ma!e&up. he dissociative state in which the respondent was said to %e constituted a Gdisease of the mind.G • Bxtraordinary external events might reasona%ly %e presumed to afect the average normal person wDo reference to the ma!eup of the person exposed to such experience. he Gpsychological %lowG which caused the dissociative state was an external cause and the trial *udge shld have held that if the respondent was in a dissociative state at the time he struc! Miss Y he suffered from a Gdisease of the mind.G
0issent 0ic!son /. & 1utomatism is %Dw criminal resp and legal insanity. he Gpsychological %lowG type of automatism is sometimes called non&insane automatism to distinguish it from Gdisease of the mind.G • +t may %e that the automatism relied on some Gdisease of the mindG %ut it is not necessarily so. Maghten Fules can have no application unless there is some form of Gdisease of the mindG which is not necessarily present in all cases of automatism. • +n the present case the F is asserting insanity in answer to the defence of automatism raised %y the appellant. he presumption of sanity runs in the appellants favour. • o %urden of proof is imposed on an accused raising such defence %eyond pointing to facts which indicate the existence of such a condition R v. Berger. • olicy automatism is a defence easily feigned. +t is said the credi%ility of our criminal *ustice system will %e severely strained if a person who has committed a violent act is allowed an a%solute ac:uittal on a plea of automatism arising from a psychological %low. ,here a condition is transient# unli!ely to recur# not in need of treatment and not the result of self&induced intoxication# the policy o%*ectives in finding such a person insane are not served. 9uch a person is not a danger to himself or to society in generally. • Here there is no evidence of insanity and since s. "A(4) presumes sanity. 0ecision 1ppeal dismissed. Held to have a disease of the mind. Ratio: Psychologically induced automatism "rings mental state into uestion and the R can then raise the mental disease defence( *f the psychotic "rea% is caused "y smtg internal mental diseaseK if e$ternal automatism( *f the thing that caused the "rea% is such that a reasona"le person could cope w9o the psychotic "rea% then it is smtg internal to the accused that caused this reaction and it is tE a mental disease( *f it is such a profound e1ent that a reasona"le person wld ha1e a similar reaction then it is automatism . R v. PR#S 5"66$8 9CC 0ic!sons
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? physicians all agreed that he was sleepwal!ing. Had no motive for attac!# had clinical indicia of sleepwal!er . 9leepwal!ing is o @ regarded as an illness# it
Ratio: •
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0ey thing court said we will ma%e decision on the facts of this case( )e wonKt say all sleepwal%ing goes into this "o$ or that one( *ts S*T/AT*OHAL( ,e will %e informed %y what happened in Rabe$ case. o E*RST thing to loo% at is whether its e$ternal or internal %ut in this case its not that importantI sleepwal!ing is a condition that is not well suited to analysis under the internal cause theory o S.COH7L6 well loo% at “continuing danger info( +n this case the evidence was that he didn
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,hat presumption operates in par!s advantage- ,hat does s.A$ of CC say- ,ho has %urden of proof in mental disorder case- Eaforest says that + have to start with presumption that person isn
Comments: he rof
R. v. Stone 5"6668 9CC 'acts Hus%and insulted %y wife# experiences whooshing sensation (%y his account resulting in loss of consciousness) fatally sta%%ing her 4 timesI he then went to Mexico Held +nsults not sufficient to %e extraordinary external events that could lead to a psychological %low causing a normal person to suffer dissociation (loss of voluntariness) Fatio Boluntariness rather than consciousness is the %ey legal element of automatistic "eha1iour . Re1ersed "arks regarding legal "urden → in cases of auto%atis% burden %ust be on the defence to prove involuntariness on a "alance of pro"a"ilities "ecause it is easily feigned and all %nowledge of its occurrence rests with the accused ote Controversial %ecause with this presumption the court may convict even if there is some evidence of automatism (%ut simply not enough on %alance of pro%a%ilities) %ecause of the possi%ility that people may %e fa!ing it. 1lso held that *udge should evaluate defence %efore putting it to *ury raising standard of air of reality test# N this was overturned in ontaine R. v. ontaine Eacts he accused was a paranoid man and thought a hit was out for him. He was a chronic weed user# twitchy# etc. @ne night# he shoots the wall# doors and windows of the house when heard someone outside it# thin!ing it is the hit man# or nocturnal intruders. he next morning# sees victim approaching# and shoots him fatally# as he thought that the victim was out to !ill him due to an alleged contract on his head. 1t trial# his defence was mental disorder automatism. He testified that he had acted involuntarily at the time of the offence. *ssue /ury direction in air of reality test# and validity of 9tone test.
Feld 9CC went %ac! on 9tone. rial *udge was wrong in the *ury direction regarding the air of reality. he *udge should not try the air of reality test himself. Ratio: Stone! and the Eontaine Retreat Step ,: the air of reality test 9tone) Fe:uire *udge to decide evaluate the strength of the decision (re*ected in 'ontaine para 73) +0 of factors *udge must consider (re*ected 'ontaine para 7A&7) Fe:uire expert evidence& court doesn
*nto$ication Director o+ Public Prosecutions v. B&RD 5"6$>8 H.E O1erruled( +ssue manner in which a *ury should %e instructed on the relationship %tw intoxication and intent Fatio e1idence of into$ication is to "e considered "y a 5ury only in those cases where its effect was to render the accused *HCAPA=L. of forming the reuisite intent Comments the eard rules were incorporates into our law through Mac1s!ill v. the King 5"63"8 9CC • (also overruled now) eard was o1erruled in R v. Robinson where the 9CC held that the in:uiry should %e • into the 1CN1E state of mind of the accused# not hisDher capacity. R. v. Robinson 5"66A8 9CC 'acts +ntoxicated man struc! victim with a roc! then fatally sta%%ed him +ssue +s capacity to commit offence in cases of intoxication sufficient# or is specific intent re:uired-
Fatio Capacity alone is insufficient and unconstitutional! must ha1e intent → Beard rules do not apply. Proper charge is that 5ury consider whether e1idence of into$ication! along with all other e1idence in the case! impacted on whether the accused possessed the reuisite specific intent . However# examining evidence of capacity can assist in esta%lishing intent# capacity *ust cannot %e sufficient on its own to impose moral culpa%ility. Fegardless# there must %e evidence that intoxication undermined mens rea# i.e. must %e some ;air of reality< to defence ote Most common use of intoxication is to reduce murder charges to manslaughter R. v. Bernard 5"6778 (9CC) 'acts charge of sexual assault causing %odily harm. Complainant had %een forced onto sexual assault and punched several times. Complainant testified accused had %een drin!ing %ut was a%le to wal!# see# tal! clearly and put music on. 'riend of accused also said had %een drin!ing %ut was coherent. olice testified when arrived appeared to %e feeling effects of alcohol. 1ccused stated drun!enness caused the attac!. / directed *ury that was no evidence of drun!enness except accused
+ssue ,hether sexual assault causing %odily harm (s.$4?.$(c)) is an offence o f specific or general intent# and whether evidence of self&induced drun!enness is relevant to issue of guilt or innocence of offence of general intent. Held (Mc+ntyre /) he general intent offence is one in which the only intent involved relates solely to the performance of the act in :uestion with no further ulterior intent or purpose. 1 specific intent offence is one which involves the performance of the actus reus coupled with an intent or purpose going %eyond the mere performance of the :uestioned act. +f the policy %ehind the present law is that society condemns those who# %y the voluntary consumption of alcohol# render themselves incapa%le of self&control so that they will commit acts of violence causing in*ury to their neigh%ours# then in my view no apology for the policy is needed. he proposition that the defence of drun!enness should %e extended to include all criminal charges is unsustaina%le. Mental element of s.$4A.$(c) is simply to commit the assault# and causing %odily harm is *ust a conse:uence. herefore is a general intention offence. 9hould not loo! at drun!enness as a defence for general intent %Dc *ust prevents people from relying on self&imposed ine%riation as a factor showing an a%sence of any necessary intent. +f a person got so drun! they did not !now what they were doing the rec!less %ehaviour in attaining that level of intoxication affords the necessary evidence of the culpa%le mental condition. or is this determination a violation of s. of the Charter as it only intrudes on security of the person in terms of those who are not morally innocent (having gotten drun!) so is sound policy. ,ould dismiss appeal. (,ilson /) 1grees with Mc+ntyre. Clearly general intent even with drun!enness# was a%le to hide a %loody towel and pillowcase from police. o evidence of extreme intoxication verging on insanity or automatism which would %e capa%le of negating minimal intent here. Nnli!e Mc+ntyre doesn
raising a reasona%le dou%t. +t is :uite wrong to characteriJe the issue as whether the defence of drun!enness should apply to this or that offence. ,hile this expression is commonly used# it suggests that those who would otherwise %e lia%le for criminal conduct will escape %.c they were drun!. +ssue is really whether the Crown should %e relieved of the usual %urden of proving the re:uisite mental element for the offence# %Dc the accused was intoxicated. 9hould the *ury %e entitled to assess all of the evidence relevant to intent and %e entitled to decide on the %asis of all of the evidence whether the Crown has satisfied that %urden- *ear$ should %e overruled and drun!enness should %e availa%le for all intent cases (left to the discretion of the *ury). 9ince there was no reference made to the re:uirement that the Crown prove that the accused acted with the re:uisite intent# it is fatal to the conviction. 1ppeal should %e allowed and conviction overturned. (Ea 'orest /) ,hen a common law rule is found to infringe upon a right or freedom guaranteed %y the Charter# it must %e *ustified in the same way as legislative rules. o ade:uate *ustification here. o su%stantial wrong occurred here however so agrees with Mc+ntyre /. Ratio: *nto$ication should only "e a defence for specific intent offences( Hote: in Daviault Ma5ority adopted )ilson compromise saying that e$treme into$ication a%in to automatism or insanity had to "e a defence to general intent crimes under the Charter "ut li%ened the defence to insanity and re1ersed the onus of proof( R v. Daviault &,II+' SCC
'acts A? yDo woman sexually assaulted %y the accused# age A6. He as a chronic alcoholic and that night %rought a 4> of %randy to her home upon her invitation & enough alcohol in his system to put s.o. in a coma. hey dran!# she fell asleep in her wheelchair. Eater# the accused threw her into %ed an assaulted her. 9he fought %ac!. He got his shirt and left & claims no recollection of what happened. he defence claims that rocedural history / ac:uitted %Dc there was a reasona%le dou%t %Dc of his extreme intoxication# applied Bernard . C1 convicted and held that self&induced intoxication resulting in automatism was not a defence that was laid out in Bernard. +ssue Can a state of drun!enness resem%le automatism and therefore constitute a defence to general intent crimes/udgment Cory /.& *ear$ rule violates ss. and ""(d) of the Charter & the su%stitution of mens rea for self&induced intoxication is not one that Gleads inexora%ly to the conclusion that the essential elements 5of the main crime8 exists# with no other possi%ilities.G (,aillancourt) @nly if that is the case is the su%stitution constitutionally accepta%le. Riolates s. %Dc there may not % e any mens rea or voluntarinessI violates s.""(d) %Dc the F does not have the %urden of esta%lishing mens rea of the crime# *ust of the self&induced intoxication. 9elf&induced intoxication cannot supply the necessary lin! %Dw the mens rea and actus reas De Sousa5 Therou?. he ,ilson approach he accused shld esta%lish on the @ that he was so drun! as to %e automatistic. he ct recogniJed in R v. Chaulk that although it constituted a violation of the accuseds rights under s. ""(d) of the Charter# such a %urden can %e *ustified under s. " %Dc the accused is the only one who
!nows how much he dran! and its effects on him. Bxpert evidence is re:uired to confirm that the accused was pro%a%ly in a state a!in to automatism as a result of drin!ing. +t wld e:ually infringe on the Charter if the accused were convicted wDo the re:uisite voluntariness. 0issent 9opin!a & he fact that the *ear$ rule violates symmetry does not violate a poff*. Roluntariness is a gen eral rule not a constitutional re:uirement (Ma*ority totally disagreesU) Bernard was in obiter . here is no principled distinction %Dw specific and general intent crimes (he also discusses ulterior intent crimes# i.e. those where intent in addition to the %asic intent is re:uired.) He approves of *ear$ and its underlying policy & the ct shld reaffirn the rule that voluntary intoxication is no defence to general intent crimes. 9uggests arliament come up with a list of specific intent crimes or ma!e extreme intoxication an offence. 0ecision Conviction set asideI rial de novo Ratio: ,ilsons o%iter in Benard is interpreted into the reverse onus defence of extreme intoxication. +t re:uires expert evidence that the accu seds 1C pro%a%ly caused automatism. Comments Cory says that the 2AConnor rule Gcannot %e followedG %Dc it goes against specificDgeneral intent crimes# %ut then he goes on to *ustify it. here are facts omitted from the 9CC *udgment that are in the factum he did not seem drun! during the assault nor when went home to his wife. He was spo!e coherently to the victim during the assault# %ut called her a name different from her own or his wifes. Le%k! ' held no air of reality to his air of defence. 9aid he was going to commit suicide and the
gun accidentally went off. He fought with his CME partner and his fall %ac! position was that he was very drun!# even though he got drun! at a wedding and ppl did not thin! he was drun! and he did not have that much alcohol in him. 9o moral of the story you need an air of reality.
Hecessity R v. P&R# ## 0efence of ecessity Eacts: delivering drugs to 1las!a. 9torm hitU 9o had to come into Cdn watersU Oot arrested. *ssue: ". 0id the / err in raising the issue of necessity to the *ury- /o $. +f not# did the / err in charging the *ury on necessity- es Feld: @rdered a new trial. Reasons: criminal theory recogniJes a disction %tw *ustifications and excuses • 1 *ustification challenges the wrongfulness of an action which technica lly constitutes a • crime. o +e the innocent o%*ect of an assault who uses force to defend himself against his assailant# or the Oood 9amaritan who commandeers a car and %rea!s speed limit to rush accident victim to hospital these are all actors whose actions we consider rightful# not wrongful 1n excuse concedes the wrongfulness of the action %ut asserts that the circumstances • under which it
