NUTSHELL Topic 1: Sources of Criminal Law Courts cannot crate common law offences (Frey ( Frey v. Feoruk ) but can create common law defences and enforce past common law defences (ss. 8- 9 CC) Jobidon: Jobidon: there is a limit on the common law defence of consent (ABH+)
Topic 2: Power to crate criminal offences and rules of criminal procedure Feds: to create criminal offences or true crimes R v. Malmo-Levine: Malmo-Levine: must have a valid c riminal purpose to exercise purpose: directed at some evil or injurious effect upon the public. Regulatory offences: both federal and prov can create: o std used to govern the investigation of regulatory offences more favourable to state (less liberty at stake) Criminal offence struck down (s.52 Charter ): ): Heywood , rule of criminal procedure (Oakes) Oakes) Test for s.1 justification Oakes with help from Laba. Laba. Charter rights Charter rights defined and analyzed. Charter as an interpretative tool: influences formally recognized values (objective) Labaye. Labaye . The Charter’s biggest impact has been in creating constitutional procedural o protections.
Topic 3: Classification of offences: see yellow sheet Topic 4: Interpreting Criminal provisions: 1st purposive reading (‘given scheme and purpose of legislation’) (limit: judicial rewriting) then if still ambiguity, use doctrine of strict construction (restrictive reading in favour of accused) (Pare ( Pare)) Use other official language before doctrine (Mac ( Mac)) Statute provisions can be interpreted in certain way (narrowly) to be in line with Charter (presumption Charter (presumption of validity) (Canadian ( Canadian Foundation for Children). Children ). o Court read in significant content into “reasonable corrective force”. Is this judicial interpretation or rewriting? o
Topic 5: AR AR: act, circumstance, consequence. consequence. Gunning: Gunning: culpable homicide includes when someone causes death by means of an unlawful act (s.222(5a) CC) . ‘unlawful act’ is part of AR (a condition/circumstance). condition/circumstance). o Error for TJ to instruct that Crown had proven ‘unlawful act’. Act must be voluntary: component of the AR (esp. important wrt objective MR): to be dealt with further under automatism. S.4(3): Possession: blurs line btw AR and MR: see personal possession (manual) (York ( York Terrence, knowledge AR included “full knowledge of character”), joint possession (R v. Terrence, and consent cannot exist with co-existence of control over the subject matter) and electronic data (R (R v. MorelliMorelli - object possessed must have some permanence along with knowledge of its character). S.265(3): S.265(3): When is consent vitiated? wrt to consensual assault ( Jobidon ( Jobidon), ), sexual assault ( J.A. J.A.-good case for elements of offence of sexual assault ), ), consent vitiated by
fraud (S.265(3)(c)) in aggravated sexual assault (HIV non-disclosure, viral load case, Mabior ) Causation: s.224 (take V as you find him), s.225 (medical intervention), s.226 (acceleration of death still cause). o Smithers (after hockey kick to stomach-MS): legal causation: contributing cause more than de minimus. Contributing condition does not prevent conviction (take V as find him- thin skull). o Nette (M2 test for causation): factual causation (how V came to death, medical, mechanical, etc.), legal causation (should the accused be held responsible- is result imputable to D?). Semantics irrelevant: “beyond de minimus, significant contribution or substantial cause” (Smithers test). May be relevant when comparing M1 vs. M2 (use “substantial cause” for M1). S.231: M1: the additional requirement is that of legal causation: acts an essential and integral part of killing of the V and thus an increased level of moral culpability required to warrant M1. Williams (HIV- inconclusive if he infected her before or after knowing) o Aggravated assault: prohibited consequence (AR): “endangerment of life of complainant”. Cannot prove actual harm in said cases (evidentiary difficultly), so must prove “significant risk of harm” (like Mabior ). Could not prove causation of prohibited consequence in this case: R.D. as to whether girl was free of HIV when he found out. Attempted aggravated assault instead. Maybin (bar fight,bouncer steps in, intervening events) o Ultimate test is Smithers- was the accused’s action still a significant cause of death. Factual causation: not just medical but must also consider the contribution of accused to result (“but for”). Legal Causation: for BCOC can take into account RF test (was act of ‘intervener’ RF) and independent act test (was act of ‘intervener’ so connected with accused’s act that it cannot be said to be independent) as analytical tools but the ultimate question is still whether the original actor can no longer be seen as a substantial contributing cause of the death. o Reid and Stratton (fight, CPR post fight actually caused death) Intervening causes: unique type of case. Proper charge to jury: TJ gives examples (ie. Act of God, Hallet - beach), then ask Smithers question, then ask “ Did the intervening acts BCOC such that the actions of the accused are no longer seen by you as a significant a contributing cause of his death ”. Act of accused so closely connected to the death of the V (that still contributing cause). o Talbot (punch, falls back and hits head and kick) Evidence that an act was possibly the cause of death is not enough. Causation, like other elements of the prohibited act, must be established BARD. Omissions: o Moore (man on bike pulled over; refusal to identify oneself is obstruction of police officer)
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Majority: implied duty to identify oneself. Strong dissent: no such duty in statute (there is one for motor vehicles but not for cycles) or common law. To imply one would be to rewrite the statute. Contrary to right to silence. Peterson (statutory duty: failing to provide necessities of life to person “under his charge”, s.215) Under his charge: consider relationship of parties, past course of dealing, trust between the two. Assumption of responsibility: publicly acknowledging such by conduct or words to public. Parents refusal to accept care or inability to appreciate the need for necessaries is not a defence. Browne: Criminal negligence under s.219 requires a duty wrt an o mission. Duty can come from s.217: duty of persons undertaking acts (if omission to do the act may be dangerous to life): Undertaking must be clearly made and with binding intent . “Ill take you to the hospital” was not enough to create a legal duty S.217 does not depend on relationship of parties like s.215. The relationship is relevant to whether negligence is established (wanton disregard) under s.219. Other duties: s.216, s.218, etc.
Topic 6: Subjective MR: Intention and Ulterior MR: o Accused must have the very intention required in the relevant provision (Vandergraff - intention to throw object but not to contact V). Intention must be proved BARD (Murray - Bernardo’s tapes. D claimed that the o tapes were to be used as defence tactics- raised RD as to intention to obstruct justice) o JSR: s.229(c) MR1: act or conduct done to bring out some further unlawful object (shootout kill NB shooter). MR2: Offender knows that the acts for the purpose of the unlawful object are likely to cause death (to others) even if he desires not to cause death or bodily harm to any human being. Roks (set-up fire causing death): elements of s.229(c) established. o MR requires the subjective foresight of the likelihood of death. Like intention, one can rely on the common sense inference (natural and probable consequences of conduct of accused) but one must be careful not to go too far (leads to an objective std). This case warns of the dangers of reasoning backwards from the fact that death occurred. Intent or purpose to achieve prohibited result: highest form of MR (s.229(a)). o o Knowledge that something is very certain to occur may be equated with intent. o Wilfully achieve a prohibited result is usually equated with intent. Motive is separate (Hibbert ): only relevant to a few crimes: wilfully promoting o hatred against a group, theft (colour of right), terrorism offences. Subjective MR with objective feautures: objective stds to define criminal conduct. o Theroux : the accused can commit fraud if he intends the relevant transaction (specific consequences of his act- deprivation), even if he does not appreciate that a transaction of that nature is “dishonest” (judged objectively). (He knew he was depriving them of insurance protection)
Elements of s.380 fraud, see p.24. o Chase (sexual assaults): an assault committed in circumstances of sexual nature- an objective std: “ viewed in light of all the circumstances, is the sexual context of the assault visible to the reasonable observer ” (see relevant factors and relevance of accused’s intent/motive p.25). Knowledge: accused must generally know that the conditions of AR exist (circumstances). Unrealistic for Crown to prove knowledge so it is presumed unless the accused presents a mistake of fact defence (eg. S.265(4)). A number of provisions deem knowledge where the accused has failed to take “reasonable steps” to determine actual facts (eg. S.273.2). o Ewanchuk (sexual assault- CONSENT): there is no implied consent in sexual (it is a myth that lack of protest = consent). Presumption of knowledge of her consent unless he presents mistake of fact defence. Subject to AOR initial test. Main question: whether the accused honestly believed the complainant had communicated consent (words or conductsilence, passivity or ambiguous conduct will not suffice) Also subject to s.273.1(2) and s.273.2. Levigne (luring a child): s.172(3)-(4) require the accused to take reasonable o steps to ascertain the age of the person being lured if that person has represented that they are underage. This is an inchoate offence. Beaver : in a criminal case there is no law of possession without knowledge of o the character of the forbidden substance. A lower form of subjective MR then intent or purpose ( s.229(c) and 229(a)(ii) o are good examples). Dynar : two components of knowledge: truth (AR) and belief (MR): Stabbing o manikin believing it to be human: AR of murder not established (no truth- only attempted murder), MR of murder established (belief). Wilful Blindness: o Currie (cashing forged cheque for stranger): “if a party has a suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge”. Vinokurov (denying knowledge of stolen goods by pawn shop owner): a lower o form of MR then recklessness. WB is a substitute for knowledge and R is not. o Briscoe (driver to rape/murder didn’t want to know what they were going to do): WB does not define the MR required for a particular offence. It can substitute for knowledge (a component of MR). TEST: Imputes knowledge to accused where suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make such inquiries. Failure to inquire may lead to R or N but WB is not simply a failure to inquire but deliberate ignorance. (the key difference) Recklessness: conscious taking of an unjustified risk (obj and subj components) o Theroux : knowledge of the likelihood of the prohibited consequences. It is established when it is shown that the accused, with such knowledge, commits
acts which may bring about these prohibited consequences, while being reckless as to whether or not they ensue 1. Buzzanga: R will apply where the provision creates a consequence, but does o not, as a matter of construction require some more limited kind of MR. In this case ‘wilfully’ promotes hatred = intention to do so. (includes virtual certainty rule to intention). Objective MR and true crimes: R v. Martineau: subjective foresight of death is a minimum MR for murder. o s.230 (Murder in commission of offences, felony murder) is unconstitutional. Stigma and punishment for murder must be proportionate to the moral blameworthiness of the accused (principle of F.J.) Strong dissent: more emphasis should be placed on physical consequences (as well as MR). “ought to know” in s.229(c) is unconstitutional. o Creighton: (MR for MS, good MS case) (5:4) MS: AR/MR of underlying act (predicate crime) + RF of the risk of bodily harm + unlawful act must be objectively dangerous + harm must be more than trivial or transitory. Above underlined meets constitutionality test: stigma, punishment, intentional should be punished more than unintentional (p.36). Symmetry: not a fundamental principle of justice but when MS is viewed in context of thin-skull principle, the disparity diminishes between the MR and consequences. Objective test: What would a reasonable person do in all the circumstances. De facto or applied std varies with the activity in question not the actor . Personal factors not relevant except on the question of whether the accused possessed the capacity to appreciate the risk or quality of prohibited act Not included: lack of experience, education, etc. (see minority) Illiteracy or problems of perception may be included is they affect capacity to assess risk but will be rare. o Beatty (dangerous operation of vehicle causing death, momentary lapse) AR: manner of driving is objectively dangerous (s.249(1)) MR: test is objective not subjective (due to licensing, regulatory nature of the driving). Modified objective test : does the dangerous conduct constitute a marked departure from the std of care that a reasonable person would observe in all the circumstances. Subject to capacity of accused to perceive the risk. Accused SOM can be relevant to marked departure but not essential. Rationale for marked departure: automatic and reflexive nature of driving- momentary lapses not blameworthy. o Degree of N: Penal negligence: marked departure (not mere carelessness)
Cf. std for counselling: knowledge of unjustified risk: knowledge is of a risk that is likely. R: knowledge of a risk that is possible (may ) ( probability vs. possibility ) 1
dangerous driving, failing to provide necessities of life, carless use of firearm, etc. Criminal negligence (s.219): Marked and substantial departure Why? Higher penalties plus “wanton or reckless disregard for lives or safety of other persons” in section. Thus MS fault requirement can differ for unlawful act (if un lawful act includes penal negligence) vs. criminal negligence. Regulatory Offences: public welfare offences (prohibitions for public interest) SSM : Classification of the offence: presumptively strict liability. For TEST on o classification including the DDD/mistake of fact defence test (for SL) see p.40 T8). Onus: DDD/Mistake of fact is to be established by accused on b.o.p. Mistake of fact must be both honest and reasonable. See p.225 in Roach for factors to be considered in DDD test. Re Section 94(2): An absolute liability offence will violate s.7 on ly if and to the o extent that it has the potential of depriving life, liberty of security of person. Potential imprisonment is one way. S.1 will rarely save such a violation (see p.41 T8 for conditions). (NB: provision provided for minimum periods of imprisonment). o Wholesale Travel Inc : Timely retraction requirements are an unconstitutional form of absolute liability. Reverse onus provision (proving DDD on b.o.p.) is valid: the principles of fundamental justice and Charter values have a different scope for regulatory offences (ie. presumption of innocence not as strong) plus evidentiary problems (Crown unable to prove DD of accused). o Raham: If the offence can reasonably be interpreted as a SL offence, it must be so interpreted even if it could also be reasonably interpreted as an absolute one (presumption of constitutionality). Test for finding an absolute liability offence (expands on SSM ) Offences of the Highway Traffic Act which regulate and control conduct on the roads are public welfare offences- presumed SL. Levis (City): (company: pulled over for expired registration (did not receive o notice). T pulled over for expired licence, thought date on licence was not expiry date): Absolute liability offences are the exception. Test in SSM is paramount. Availability of DDD is not a separate inquiry. Defence of officially induced error recognized: see test p.45. Does not apply here- error was not wrt to legal std. DDD: Both had duty to do more: T proved no action of attempt to obtain information. Passive ignorance is not a valid defence.
Extensions of Criminal Liability Topic 9: Aiding and Abetting: s.21 CC AR (Briscoe): doing something that assists or encourages the perp of the crime Aid: means to assist or help actor, Abet : encouraging, instigating, promoting or o procuring the crime to be committed (like counselling but at time of offence) Mere presence, and passive acquiescence at the scene of a crime is not sufficient to ground culpability. Some active steps must be taken (actual aiding or abetting) o Presence + other factors prior knowledge that an offence of the type committed was planned will ground culpability. (Dunlop and Sylvester ) T: preventing V’s escape or preventing V from receiving assistance (in line with duty/omissions idea). MR (Briscoe): ‘for the purpose’ Purpose = intent and knowledge o o Intent (NOT R): accused intended to assist the principal in the comm. of the offence. (desire irrelevant- Hibbert ) o Knowledge (or wilful blindness): the aider must know that the perp intends to commit the crime, although he or she need not know precisely how it will be committed. For murder: aider must know that the perp had the intent required for murder. Not all the details of the crime, just the type ( Yanover ). MR Constitutionality (Logan): if there is a minimum degree of MR constitutionally required for the principal then that same minimum applies to the party. Eg. Attempted murder: minimum is subjective foresight (intent) therefore the o MR for party to attempted murder is the same. Thus “ought to know” in s.21(2) is inoperative for attempted murder (c b-c basis to determine inoperativeness) Identity problems: s.21 designed to make differnce between A&A legally irrelevant and thus precludes jury unanimity as to the accused’s particular participation in the offence (NB: does require BARD that the accused did one or the other). ( Thatcher ). o This is useful for multiple actors and no conclusive proof on who threw fatal blow. Notice and impossibility: p.5-6. Topic 10: Counselling: s.22 CC (as a party, offence committed), s.464 (inchoate liabilityoffence not committed) See p. 6 (s.464 AR/MR) and p.7 (s.22 AR/MR) Topic 11: Attempts: s.24 (defn), s.463 (penalties), s.239 (penalty for attempted murder), s.465 (conspiracy), s.660 (substituting attempt for full offence charge) AR (s.24(2): an act that is more than merely preparatory Deutsch (interviews with potential secretary’s told they must have sex with o potential clients on job, no formal offer, procuring illicit sex) Act found to be more than merely preparatory. Qualitative test: a step in the commission of the offence (see p.9 T11) for test, proximity. o T: a more remote AR will be accepted if intent is clear.
T: Another factor is magnitude of planned crime- if so severe, even if planned for months in advance, still enough. MR (s.24(1)): intend to commit the completed offence (MR >> AR). o Attempted murder: intent to kill. ( Ancio) Dery (discussions between the accused had be intercepted concerning the possibility of stealing liquor, attempt to conspire) o Attempt to conspire is not a crime in CAN Too far removed: cannot be justified as punishing behaviour that demonstrates o a substantial risk of harm (basically a thought crime- a risk that a risk will materialize- too far removed). Acts that precede a conspiracy (essentially an agreement ) are not sufficiently proximate to the substantive offence to warrant sanction. S.24(1): Impossibility is not a defence. Distinction btw factual and legal impossibility is irrelevant. o
Topic 12: Corporation and Association Liability: Common law p.11 N, Statute: s.22.1-22.2 CC (also in separate doc).
Select Criminal Defences: **NB for all defences the AOR test is the evidential burden and is applied the same (Cinous and Fontaine) but NB the persuasive burden depends on whether it is a reverse onus defence (b.o.p on accused- must be justified as it infringes s.11(d)) or a ordinary defence (Crown must prove defence not established on BARD)).
Responsible for de minimus non curtax lex R v. JA (law does not concern itself with trifles). (R v. Smithers??)
Topic 13: Mental Disorder s.16 CC (REVERSE ONUS) Per M’Naghten: requires two things: disease of mind and defect of reason DISEASE OF MIND: (mental disorder defined as DOM under s.2 CC) See p. 6 N. o o Cooper (initial test) o Modified slightly in Parks (for TEST). Further modified in Stone (see stage 2) o DEFECT OF REASON: see p.7 N (two limbs). LIMB 1: Definition ‘appreciates’: Cooper . Kjeldson: Appreciation of the nature of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people. Sociopathic or psychopathic offenders are not within s.16 (without more). o LIMB 2: What is a ‘wrong’: Did the accused lack the capacity to rationally decide whether the act is right or wrong and hence make a rational choice about whether to do it or not? Right from wrong in abstract (i.e. knew that society would think its wrong) o sense plus in a rational way connected to the crime. (Oommen) FITNESS TO STAND TRIAL: Mental disorder at time of trial. See ss. 672.21, .23, .33, .851. WHO CAN RAISE DEFENCE: Defence at any time Crown: only after accused proven guilty OR if defence puts capacity in issue o raising non-mental disorder automatism. BURDEN OF PROOF: s.16(2), (3) onus (persuasive burden) on person who raises issue (b.o.p.). Constitutionally infringes presumption of innocence but justified (evidentiary difficulties) (R v. Chaulk ). Must be AOR to raise defence (evidential burden) o DISPOSITION: see p.5 N Irresistible impulse: see p.7. Effect of mental disturbance short of DOM: can raise a RD wrt to MR: no a diminished responsibility defence (DNE here) but ordinary principles of MR. Topic 14: Voluntary Act Negativing the AR and Automatism (REVERSE ONUS) What is automatism: an involuntary act, where the mind does not go with what is being done (unconsciousness is not necessary). Voluntariness: the act must be the voluntary act of the accused for the AR to exist. Swaby : charge of being an occupant in vehicle knowing there was a gun present. o Crown must prove coincidence of occupancy and knowledge. But coincidence must be attributle to something amounting to voluntary conduct- driver having a reasonable opportunity to either remove himself or see that the weapon was removed from the vehicle. ( this is a classic ‘being found’ case like Larsonneur in the UK ).
Parks (sleepwalking case): TEST for whether DOM or not. In distinguishing between sane and insane automatism the key is policy considerations. ONUS: evidential (on accused, ‘some evidence’), persuasive on Crown (BARD to o prove absence of sane automatism)- NB: this has since been changed in Stone to a persuasive burden on the accused (to make both sane and insane automatism consistent ). o Automatism (spoken as a defence) is a subset of voluntariness which is turn is part of the AR component . o Sleepwalking not DOM in this case. Internal/External not appropriate here. Stone (post insults- whooshing sensation and before he knew it his wife was stabbed to death- psychological blow) ONUS: persuasive on accused to establish defence (b.o.p.) (to rebut presumption o of voluntariness). o THE TEST: Stage 1 AOR TEST: see Stone p.10 (includes what evidence is required). o If accused fails under this, still may bring s.16 app. NB: Fontaine concludes that Stone went too far here- further then the std evidential burden for all defences (see below). o Stage 2 TJ discretion: leave mental disorder or non-mental disorder automatism to the ToF. Sane automatism rare so presumption of DOM and TJ to determine if evidence (see Stage 1) places it outside a DOM. A more holistic approach that will be informed by internal cause theory, continuing danger theory and other policy considerations (see Stone, p.11). Stage 3: possible defences. If DOM proceed under s.16. If NO DOM and jury finds o on b.o.p. that sane automatism is established = acquittal (again see Stone). When will jury have a choice? Only if the accused places her capacity in issue by claiming non-sane automatism. Otherwise, per Stone, it only considers one or the other. o Binnie J in Stone: dissent: jury should be able to consider non-insane automatism if s.16 not made out. Fontaine: mental disorder automatism o Evidential burden for reverse onus (b.o.p. on accused- automatism) and ordinary defences (issue put in play, must be disproved by Crown BARD) is the same. Discharged if there is evidence upon which a properly instructed jury reasonably could acquit on the basis of that defence o Stone reinterpreted for AOR test: Fontaine p.13. Leudecke: sleep disorder- sex with person near him. o Strong preference for NCR-MD in Stone is explained in part by the very different treatment accorded to those found NCR- MD” compared to thoe previously found non-guilty by reason of insanity See p.13 esp. why this case should have been different. For sleepwalking progression see p.14 N.
Topic 15: Simple Intoxication: (ONUS: see p. 21 in Notes) Not really a defence: operates only if proof of the intoxication helps leave the judge or jury in reasonably doubt over whether the accused formed the MR of the offence classified as a “specific intent”. Traditionally not a defence to general intent offences
(George, see case for what constitutes a specific or general intent offence: robberyspecific; common assault: general) Bernard : SI: requires mind to focus on an objective further to the immediate one at hand (B&E with intent to commit indictable offence); GI: require only a conscious doing of the prohibited act (sexual assault causing bodily harm). o NB: dissent from Dickson on criticism of artificial test. Robinson: TJ charge to jury and the issue of capacity. Old rule (George) intoxication is not a relevant factor to consider except where o the intoxicant removed the accused’s capacity to form the requisite intent. PROBLEM: The inquiry is into the actual state of mind of the accused not the o capacity to have state of mind (ie. just because he had the capacity does not mean that he had the requisite specific intent). o NEW TEST: p. 17 based on the intoxication impairing the accused’s foresight of consequences sufficiently to raise a reasonable doubt (the AOR test). R v. Daley (post Robinson)- no reference to capacity should be made so as to not o confuse jury. Leary : followed Majewski wrt general intent crimes: recklessness of becoming drunk is deemed to be sufficient to supply the fault element for the commission of the particular GI crime. Dickson’s dissent: R cannot exist in air- R in a legal sense imports foresight (no correspondence either). o NZE and US way is better: allow all evidence, regardless of classification, to be seen by ToF.
Topic 16: Extreme Intoxication (REVERSE ONUS) Daviault (1994-SCC): (sexually assaulting woman after drinking 40oz bottle- no recollection) Leary-rule should be reformulated wrt Charter since it substitutes the voluntary o act of being intoxicated with the voluntary act in the sexual assault (AR) (against the presumption of innocence) (conviction based on prior fault-MR) Possible defence: Those that can demonstrate they were in an extreme degree of intoxication that they were in a state akin to automatism or insanity that might expect to raise a RD as to their ability to form the minimal mental element required for a GI offence. Onus: on the accused (b.o.p.); this violates s.11(d) but is justified due to evidentiary difficulties. Expert evidence would be required to confirm extreme state. Cannot follow AUS/NZE (no classifcation, everything put to jury) since it would be against precedents and floodgates. o Should it be thought that the mental element relates to the AR other than the MR- the result should be the same. Dissent: Rule in Leary supported by policy- so intoxicated pose a threat to o society. Symmetry is not a principle of FJ. Bouchard-Lebrun (2011-SCC) (accused in state of toxic psychosis as a result of taking ecstasy other drugs- assaulted 2 men) o QOL: Does s.33.1 CC limit the scope of the defence of NCR-MD (s.16)? Daviault applies subject to significant restriction by s.33.1. o o S.33.1 and s.16 are mutually exclusive. Test is to detrmine first if DOM then, if not, apply s. 33.1 (if it applies)
T: courts have a much more restrictive reading of DOM in this case as compared to Stone. Self-induced intoxication seems to be a special case to which courts are reluctant to apply s.16. For TEST see p. 20. See Notes p. 21-22 on s.33.1 and whether it is constitutional. Involuntary Intoxication: requires that the accused could not reasonably know that the substance impaired (a reasonable belief). A possible way out of s.33.1
Topic 17: Self-Defence: Existing law: s.34(1), (2), 35, 37. New law (not in force yet): s. 34(1)-(2). (ORDINARY DEFENCE- persuasive on Crown) OLD PROVISIONS: an ordinary defence (not a reverse onus one) (Cinous)
S.34(1): applies to unprovoked self-defence without intent to cause death or GBH. S. 34(2): Provision is triggered when person alleging S -D causes death or GBH in repelling the assault whether or not the accused had the intent to cause death or GBH or not. (Pintar ) o Attackers propensity for violence is relevant to determing s.34(2)(a)-(b) o 3 elements to this defence: see Cinous on passing AOR TEST. Lavalle adds to Cinous in context of battered women: o Apprehension of imminent danger is a factor (not necessary). Expert testimony can assist the jury in determining whether the accused had a reasonable apprehension of death. (element 2). No other option: why didn’t she leave? Many battered woman are psychologically unable to leave their batterers because they have developed a traumatic bond with them (element 3) Who is the reasonable person? See p. 28 NEW LAW: see pp. 26-28. Topic 18: Necessity (ORDINARY DEFENCE) TEST: see Latimer . Topic 19: Duress s.17 CC identifies a limited defence, but the common law and Charter have extended its application (ORDINARY DEFENCE) S.17: only applies to principals. (TEST p. 33 in N) o Constitutionality of provision tested in Ruzic : Immediacy and presence requirements under s.17 are unconstitutional as they allow conviction of the involuntary (those who do not have any realistic choice). For parties: common law defence of duress: o Hibbert : Duress is analogous to necessity as both respond to external dangers of the V being a 3P (not the originator of the danger as in S-D) Difference: duress: force is human threat, necessity it is circumstances. Safe avenue escape rule: if safe-escape then no normative involuntariness which is the basis of duress (and necessity). Based on a modified objective test: the same one for S-D and necessity: taking into account the particular circumstances and
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human frailties of the accused (see p. 28- relevant to the accused’s ability to perceive harm and respond to it, under S-D2). For common law TEST see Ruzic .
Topic 20: Provocation: partial defence to murder. s.232 CC (ORDINARY DEFENCE) Tran for TEST. Topic 21: Entrapment: common law defence, results in stay of proceedings, TJ to decide issue for policy reasons. (REVERSE ONUS DEFENCE) Backing for defence: purity of the administration of justice. Proper police tactics (vs. not intruding too much into police work) TEST in Mack . NB predisposition of accused is only to be taken into account wrt to a reasonable suspicion which forms the basis of ‘providing an opportunity’. The test is objective on whether the police induced the commission of the offence. See other factors wrt inducing. Bona Fide inquiry: investigation directed at an areas where it is reasonably suspected that criminal activity is occurring. In such a location, any person present can be provided an opportunity to commit the particular test. Size may matter (but not in Barnes). Mack : reasonable suspicion that person is already engaged in c riminal activity BUT failed under element 2 of test- inducing commission of crime (going too far) Barnes: no reasonable suspicion that a person is already engaged in criminal activity (manner of dress, length of hair) BUT a bona fide inquiry and did not go too far. STD for reasonable suspicion and inducement- see p.40. Topic 22: Adversarial Proceeding Presumption of innocence and BARD: BARD is more than proof that the accused is probably guilty but not absolute o innocent. A RD is logically derived from the evidence or absence of evidence (common sense) and not based on a imaginary or frivolous doubt (Lifchus) o A definition of RD is required in a charge to the jury: an effective way is to say that the std falls much closer to absolute certainty than to proof on b.o.p. ( Starr ) When credibility is the central issue the lack of credibility on the part of the o accused does not equate to proof of his or her guilt BARD. ( JHS ) Evidential Burdens o Prima facie case: used for preliminary inquiries and for a directed verdict of acquittal. (must be p.f. case for every element!) Arcuri : Question to be asked is whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty Like with AOR this depends on whether there is direct evidence for the elements of the offence or circumstantial evidence. The latter requires a limiting weighing of the evidence o due to the inferential gap and includes co nsidering any exculpatory evidence. Not an assessment o f credibility or
p.374 in T: Following Lavallee, the reasonable person std in the common law defence of duress will be tailored to the past experiences and physical capabilities of the accused in order to ensure that the objective std is ad ministered fairly given the particular accused’s capabilities and abilities. (Characteristics and experiences as a particular accused- p.378- more liberal then when applying objective stds of liability) 2
reliability (this is for the jury). It is an assessment of the reasonableness of inference to determine if a jury could find a verdict of guilty. o Air of Reality: (must be AOR for every element) Cinous (p.24 tab 4- T17): TEST: whether there is evidence uoin which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capabe f supporting inferences required to acquit the accused. ( NB the same test as prima facie case, except to acquit, not to convict!! ). Fontaine: The TJ is not to decide on the substantive merits of the case. The AOR (evidential burden) applies to all defences, whether they are ordinary or reverse onus. For automatism the probative opinion of a qualified expert will normally provide sufficient evidentiary foundation for putting the defence to the jury (after TJ decides if there is a DOM) Presumptions: see Oakes (p.8 Tab 1) and extra sheet. Neutral impartial trier: discretion of TJ over how trial is run (see p.6), publication bans, contempt of court and mistrial. o Gunning: TJ overstepping his bounds, instructing the jury that he Crown had proven an “unlawful act” (for MS or M). TJ allowed to give an opinion as advice but not as a direction. Hamilton (sentencing for drug smugglers from Jamacia): TJ is permitted to use o common sense and wisdom gained from person experience in judging the trustworthiness of particular witnesses but the judge must avoid judging the credibility on the basis of generalization or upon matters that were not in evidence. To do otherwise is to interfere with the adversarial process. The role of the prosecutor: primary duty is not to seek to convict but to see that justice is done through a fair trial on the merits. They fulfil a public function which must be carried out fairly (4.01(3) CBA Code of Professional Conduct ). o Boucher : it is improper for counsel for the Crown to express his opinion as to the guilt of the accused (can say that evidence points to it, though) since it shows to the jury that in his investigation he had satisfied himself of the guilt of the accused. Krieger v. LSA (prosecutor fails to disclose DNA evidence implicating another o before accused PI): LS’s jurisdiction to review is limited to examining whether there was an ethical violation, it is not a review of the internal operation of AG’s office (or within the scope of prosecutorial discretion) and hence should not be seen as usurping the AG’s office (it is wrt professional conduct). Nixon: Repudiation of a plea agreement in careless driving. An act of o prosecutorial discretion is only reviewable for abuse of process which includes conduct affecting the fairness of the trial or that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. Onus: evidential (accused) then shifts to Crown to give reasons and then persuasive for proving abuse of process on accused. No AOP here.
Topic 23 & Topic 24: see TOC and Notes.
Topic 29: Sentencing ss. 718, 718.01, s.718.1, 718.2, 718.3, 719 FUNDAMENTAL PURPOSE OF SENTENCING: see s.718. OBJECTIVES (s.718) No one objective trumps the other (Nasogaluak ) except proportionality. TJ to draw upon all the legitimate principles of sentencing to determine the “ just and appropriate” sentence. Denunciation (ss.(a)): Communicative function of sentencing: a proportionate sentence is one that o expresses society’s legitimate share values and concerns (which includes the Charter ) (Nasogaluak ) General Detterence (ss.(b) “other persons”) : large concern in Morrisey . For crimes where there is widespread concern about their prevalence and o desire to change human behaviour (DUI, sexual assaults, etc.) o Gravity of offence, incidence of crime in community, harm caused to others are relevant factors. Specific Detterence (ss.(b) “to deter the offender): o Factors: offender’s history and other information that may help predict future dangerousness. o Rehab can come into this to determine best way to ensure no reoffence. Sometimes prison is the only way (ss.(c)). o o See ss. 753: dangerous offender provision: indeterminate sentence. Rehabilitation (ss.(d) AND s.718.2(d)-(e)) o Rehab unlikely to occur with incarceration (R v. Preston) Providing Reparations for harm done to Vs or the community and promoting sense of responsibility (ss.(e) (f)) (f): can be used to support punitive measures. Also relevant is restorative justice o (Gladue)- a approach that seeks to remedy the adverse effects of crime in manner that address the needs of all parties (V, community and offender). PROPORTIONALITY (s.718.1) Dual nature: (i) not to exceed what is just and appropriate given the moral blameworthiness of the offender and gravity of the offence ( limiting or restraining function) (ii) “just deserts” philosophy of making sure accused is helf responsible and sentence properly reflects and condemns their role in the o ffence (judicial and social censure) (Nasogaluak ) Focus on actual conduct : gravity of offence and moral blameworthiness of offender. A retributive concept (past conduct not future effects). o Judicial sentence properly reflects the moral blameworthiness of the particular offender (CAM ) Broad discretion in imposing sentences for single or multiple offences as lon g as sentences ‘just and appropriate’. No cap on fixed term sentences ( CAM ) AGGRAVATING/MITIGATING FACTORS (s.718.2) Participation in crime is relevant Planning and deliberation, prior convictions, breach of trust, use of violence and weapons and harm to V’s as aggravating factors Accused’s good character, youth, old age, ill health, remorse and early guilty plea are generally considered mitigating. Provocation can be mitigating (R v. Stone). Intoxication can be mitigating or aggravating, given the circumstances and purposes of punishment. Same to be said of social status. Time served in custody- mitigating.
The conduct of state actors can be considered as a mitigating circumstance (w/o use of s.24(1)) (Nasogaluak ) as long as the conduct relates to the individual offender and the circumstances of his or her offence. o If particularly egregious form of misconduct by state actors it could result in stay of proceedings under s.24(1) Charter . Age can be a mitigating factor ( CAM ) S.718.2(e): 2 parts (i) general principle of restraint: imprisonment as last resort o o (ii) take into acct the unique circumstances of aboriginals: See p.3-4 in notes. Morrisey : on list of aggravating and mitigating factors in that case. GENERAL REMARKS: The sentencing must proceed on an individualized basis: for this offence, committed by this offender, harming this V, in this community, what is the appropriate sanction? (Gladue) Mandatory minimum sentences: judges cannot create constitutional exemptions from them (Latimer ), (Nasogaluak ). o S.24(1) cannot be used to allow constitutional exemptions in ‘rare and unusal cases’ (Ferguson- undermines rule of law, sop) CRUEL AND UNUSAL PUNISHMENT (way for minimum sentences to be struck down, ss. 12 and 52 Charter ) Is the sentence grossly disproportionate? It must be more than merely excessive. Must be so excessive as to “outrage the stds of decency” and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable” ( Ferguson). TEST is in Morrisey (all relevant factors assessed with the accused first, and then reasonable hypothetical’s if not disproportionate with accused inquiry)
