Crim Law Fall Flashcards
1
Q
What is Crime?
A
An act that the law forbids with penal sanctions.
2
Q
Scope of Criminal Law - 4 Major Tenets of Criminal Law
A
Presumption of Innocence
Proof Beyond a Reasonable Doubt
Actus Reus
Mens Rea
3
Q
Form of Crime
A
Prohibition + Sanctions + Social Purpose
4
Q
S. 91 and S.92 give powers to ________________
A
Parliament and Provinces to make laws.
5
Q
S. 91(27)
A
Criminal Law power
6
Q
S. 91 (28)
A
Penitentiaries (Jail)
7
Q
Penitentiaries
A
If 2+ years = federal penitentiary
If less than 2 years = provincial penitentiary.
8
Q
S.92(6)
A
Prisons in Province;
Establishment, maintenance, and management of Public and Reformatory Prisons in and for the Province.
9
Q
S.92(14)
A
Provincial Courts for Police, Probation, Prosecution, Civil and Criminal Matters, Civil Procedure.
“Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters of those Courts”
10
Q
Substantive Law
A
Federal statutes like YCJA, common law, and how government governs how society behaves.
11
Q
Procedural law
A
i.e. How trials work, how to enforce the law
12
Q
Basic Purpose of Criminal Law
A
- Protect all members of society from seriously harmful and dangerous conduct
- Maintaining a just, peaceful and safe society through prohibiting harmful conduct backed with sanctions
- Deterrence through the imposition of sanctions
- Criminal law focuses on the conduct of the accused person, the person charged with the criminal offence. The focus is not on the merits of the victim or the complainant.
- Victim’s (complainant) rights are growing in awareness
- Not guilty does not infer innocence; simply means the BRD standard failed
- Accused is always entitled to the benefit of any reasonable doubt; is assumed unless otherwise
13
Q
A criminal conviction can be justified even when there is no injury caused to anyone, not to say not some harm caused in general, but certain criminal offences can exist in the absence of injury. T or F
A
True
14
Q
What is Adversary System
A
There are two parties: crown and defence present their case to judge (impartial decision maker)
15
Q
What does the Adversarial system seek?
A
The truth. However, we may often find a mere approximation of the truth.
16
Q
Adversary System is not always adversarial, why?
A
Both parties often cooperate in plea bargaining, resolution discussion and guilty plea.
17
Q
What is the Role of the Crown?
A
- Administers of Justice
- Objective is not to “win” but to present facts and evidence as it relates to the case.
- Can advocate - asking a judge to convict based on evidence being BRD (Beyond a reasonable doubt).
- Conversely, where evidence has not met the BRD standard, the conviction should not be requested.
- Ensures fairness in trials
18
Q
What is required for the crown to pursue a case?
A
a) reasonable prospect of conviction and
b) it is in the public’s interest to do so.
19
Q
What is the role of the Defence?
A
- Ensuring the accused’s rights are being protected
- Ensuring that the accused has a fair trial, and that the prosecution proves BRD.
- Has to protect the client as far as possible from being convicted until the crown has proven BRD
- Must be courageous - defending the client regardless of how despicable the allegations may be
- Cannot knowingly assist or encourage dishonesty, fraud, crime or illegal conduct.
- Cannot advice a client on how to violate the law or avoid punishment
- Cannot bring forth evidence that would mislead the court
- Cannot bring forth evidence that would directly contradict what accused told counsel.
- If accused pleads guilty, counsel can only challenge sufficiency of evidence, form indictment, jurisdiction of court; cannot accused anyone else of doing it.
20
Q
What is the Role of the judge?
A
- The judge is not a party
o They provide, independent, impartial and objective assement of the facts and they determine how the law is gonna apply to the facts,
o they apply the relevant facts and laws and circumstances before the case and the circumstances of the case and render justice in the framework of the law - Make sure everyone follows procedure
o Procedure is important to make sure everyone has a fair trial - Judges are responsible for interpreting the law
o Judges do not create laws - Judges asses how evidence is presented, they control how hearings and trials unfold
- Gate keepers of the evidence that s deemed admissible
- Impartial decision makers in the pursuit of justice
- Appears dispassionate – “controls” the courtroom but does not take over it
- Interpret law and assess it in an unbiased manner
- Not to judge the accused, but to judge the merits of the evidence and whether the law is applicable
- If an accused is found guilty, judges job is to sentence that person in a just and fair manor
21
Q
R. v. Stinchcombe
A
Crown has obligation to disclose the “fruits of a police investigation” that they possess.
Everything that the police gathered.
Fruits of a police investigation are not the crown’s property for the purposes of getting a conviction; it is the public’s property to ensure that justice is done.
22
Q
Defense has the obligation to protect the rates of the person.
A
True
23
Q
Crown’s obligation to disclose is not absolute. Why?
A
- Crown can withhold information that is clearly irrelevant
- Crown can withhold information that is privileged
- Crown can delay disclosure – it is at the Crown’s discretion
- It is not up to the Crown to determine what should be disclosed to the defense
24
Q
Classification of offences - Summary
A
S. 787 (1) - general default maximum penalty for summary offences - liable not more than 5k fine or no more than 2 years in jail.
- Generally targeted at less serious conduct
- Always tried before the provincial court (OCJ)
o If appeal after trial, would go to Superior Court of Justice, as a summary conviction appeal - Agents can appear
o A paralegal, lawyer, an agent can appear for the accused
25
Classification of Offences - Indictable
* Max penalty ranges from two years to life imprisonment
* The maximum penalty of life imprisonment is unique to indictable offences
o Murder has a minimum sentence of life imprisonment
* Generally reserved for more serious conduct
* Accused is given a choice, have their matter seen before a provincial court judge or they can elect to have their case heard before a judge and jury in the superior court of justice, with or without a preliminary hearing
26
Preliminary hearings for indictable offences are only done at the Ontario Court of Justice, then goes to the Superior Court of Justice. True or False.
True
27
What is an indictable offence?
An indictable offence is more serious. There are different procedures for indictable offences. The procedure that applies depends on how serious the offence is and choices made by the prosecutor and the accused person. A person charged with an indictable offence will be arrested where the police have reasonable grounds to believe that the person has committed an indictable offence or is about to commit an indictable offence. A person charged with an indictable offence must show up in court. He or she may represent him or herself or be represented by a lawyer.
28
Classification of Offences - Hybrid
* Can either proceed by summarily or by indictment - determined through Crown election
o Considerations
Seriousness
How many times you want the witness to testify
*
o Assault 266 offence section, showcases hybrid choice
If it says “an offence punishable on summary conviction”
* It means the default maximum penalty of 2 years minus a day applies
* Presumed indictable unless Crown elects to proceed summarily
29
For Hybrid Offences, the accused has the right to choose whether they want to be tried in the provincial court or the superior court with or without juries.
True.
30
R. v. Sedley
* “Misdemeanours against the King’s peace” is a common law offence
* Sedley’s offence did not fall under any specific statutory offence
Court cannot determine defendant committed an illegal act without a crime.
* Court deemed conduct offended morality, felt compelled to punish behaviour
* It was the Court that determined whether conduct was criminal
31
Frey v. Fedoruk
* Common law offences eliminated from the Canadian criminal justice system except for contempt of the court.
* “What is to be declared criminal should be left to Parliament, not the court”
* Parliament is often reactionary to judicial opinions
* “Breaching the King’s Peace” is too ambiguous
* Uncertainty should not exist in the administering of criminal law
* Letting a judge determine what’s criminal = uncertainty
* Allowing common law offences might capture conduct that’s not actually criminal in essence
* Yu An: No one should be convicted of a crime unless the crime is recognized as such in the criminal code. Section 9 of the criminal code.
* Section 8.3: common law defences are under 8.3.
32
Criminal Code s. 8(3) & S. 9
Criminal offences/defences.
33
S.9(a) of Criminal Code
o No one shall be convicted of an offence at common law
o Exception: contempt of court
Enables a judge to control the courtroom
34
S.8(3) of Criminal Code
o Preserves all common law defences (both statutorily entrenched and through common law)
35
R. v. Henry
* Ratio is always binding on lower courts (stare decisis)
* While obiter is not binding like ratio, some obiter carries more weight than others i.e. from SCC (case by case determination by court)
36
The Division of Powers under s. 91 (Federal) and s. 92 (Provincial)
The criminal code is a product of the division of powers.
- S.91 (27) - parliament's power over criminal law.
S.92 (14) Administration of Justice, including the constitution, Maintenance, and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts.
37
Reference re Firearms Act
* 3 prerequisites to classifying a law as criminal: [Valid criminal purpose backed by] (1) Prohibition + (2) Penal Sanction + (3) Criminal Law Purpose
* Due to the presumption of constitutionality, burden is on the challenging party to show that the legislation is ultra vires the enacting level of government
* Here, court weighed public safety over property rights.
38
Charter
S.52 (1) - constitution of Canada as the supreme law of Canada
S.52 (1) - is a challenge to parliamentary supremacy, since it grants courts the power to measure legislation against the "codified yardstick" that is the charter.
39
2 types of Charter challenges
Law and conduct
Law: a particular law violates s. x of the charter
Conduct: a challenge to the act of a state agent. (i.e. unreasonable search and seizure).
40
Why is S.7 of the Charter a challenge to criminal law?
Everyone has the right to...not be deprived thereof except in accordance with the principles of fundamental justice.
Example: Is the law that the accused is charged with in and of itself consistent with the principles of fundamental justice?
41
R. v. Malmo-Levine (Requirements for a Principle of Fundamental Justice)
* Test for principle of fundamental justice:
1. Must be a legal principle
2. Must be significant societal consensus that it is fundamental to how the legal system ought to function/operate
3. Must be identified with sufficient legal precision to yield a manageable standard that can measure deprivations of life, liberty and security
* Discusses four principles of fundamental justice:
1. Vagueness
2. Overbreadth
3. Arbitrariness
4. Gross Disproportionality
42
Arbitrariness
o Test: Is there a direct connection between the objective (purpose) of the law and its negative impact on the person?
o If NO: law is arbitrary; there must be a rational connection
43
Overbreadth
o A Law is too broad in scope that it includes some conducts that.
o Restrictions may include what is beyond what’s needed to meet the law’s objective
44
Gross Disproportionality (s.7)
o Effects of the law on a person are too extreme that they cannot be justified by its object.
o Yu An: the law effect on your S.7 rights are so gross disproportionate to its purposes that it cannot rationally be supported.
45
Vagueness
o Test: Is there sufficient room for legal debate? Ex. Speed limit – you cant say you cant go unreasonably fast…etc. way too vague
o SCC: any penal law should be deemed unconstitutional if it is vague
46
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), [2004] 1 S.C.R 76
* Law does not require certainty for it to be constitutional; just an “intelligible standard for its application”
* Yu An: Certainty of the law is not required
A law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and “analysis”; “does not sufficiently delineate any area of risk”; or “is not intelligible”. The law must offer a “grasp to the judiciary” Certainty is not required.
47
Interpretation of Criminal Statutes
1. Modern statutory: the words of the legislation must be read in their entire context and grammatical and harmoniously with the skin of the act, the object of the act and the intention of the parliament.
2. Look at other language version of the code and apply the same modern s
3. You wanna look at the ambiguity of the charter value – where you have two meanings of the charter, the interpretation of the core with the charter value meaning should be adopted.
4. Strict and construction rule: clark case. Strict and construction of criminal statute. You wanna adopt an interpretation favour to the accused. But it must align with charter value.
5. Court may resort to strict and construction of the penal statute where ordinay of interpretation do not resorte any ambiguity.
48
Re Application under S.83.28
* Charter values are to be used as an interpretive principle ONLY in circumstances of genuine ambiguity
* In all other cases – courts are to use the modern principle of interpretation
1. Consider:
Entire context of legislation in both grammatical and ordinary sense (language, scheme of act, parliamentary intent, object of act)
* Modern approach presumes constitutionality
49
R. v. Clark
* If something is “missing” from legislation, it was Parliament’s intention to omit/exclude
* Inappropriate for courts to include what Parliament did not intend to include
* Parliament would include what they want in the code
* In cases of ambiguity:
1. Apply modern principle of interpretation
2. Look at other language (EN/FR)
3. Consider Charter – which interpretation aligns best w/ Charter?
4. Apply strict construction principle (Goulis, apply interpretation more favourable to accused)
50
R. v. Goulis (Doctrine of Strict Interpretation)
* Doctrine of Strict Construction – where a criminal provision is reasonably capable of two interpretations, the interpretation more favourable to the accused must be adopted ( it must also align with the charter value) (Charter value comes first because it is what the parliament’s intent)
* Must first use modern principle of interpretation first
* Where ambiguity remains, use doctrine of strict interpretation
51
R v. Pare (Doctrine of Strict Interpretation - Applied)
* Interpretation must still be reasonable given the legislation’s scheme and purpose despite the strict construction rule
* If the interpretation favouring the accused conflicts with parliamentary intent, must prioritize parliamentary intent
* Interpretation that runs contrary to common sense must also not be adopted given a reasonable alternative exists
52
R. v. Mac (Doctrine of Strict Interpretation - Applied)
* Doctrine of strict interpretation only applies where there is true ambiguity and where other steps have been taken (Clark)
* Meaning of words are to be determined by a full contextual analysis
* Most restrictive meaning of a word doesn’t always apply – again, must go through whole process
53
Summary of Interpretation of Criminal Statutes
1. First: Modern principle of statutory interpretation is applied
a) Full contextual analysis – context, grammar, parliamentary intent)
2. If ambiguity remains -> look to EN and FR codes
a) If one of the versions is plain and unequivocal, it will be applied
3. If ambiguity still remains -> consider Charter values
a) Apply the interpretation that aligns best with Charter values
4. If ambiguity still remains -> apply doctrine of strict construction
a) Apply interpretation most favourable to the accused (most narrow and restrictive interpretation)
54
Presumption of Innocence
o “Any person charged with an offence (d) has the right to be presumed innocent until proven guilty”
55
Woolmington v. D.P.P (Presumption of Innocence - Origins)
* No burden shall be laid on the accused to prove his innocence – they are presumed innocent
* Burden is on the prosecution to show the guilt of the accused
* Where there is reasonable doubt, the prosecution has not met its burden and accused will be entitled to acquittal
56
What does Presumption of Innocence mean for the accused?
* The accused begins the case with a clean slate
* POI stays with the accused for the entire case, from start to finish
* POI is only defeated when Crown proves BRD the guilt of the accused
* Accused does not have to testify – their innocence is presumed
* Accused also does not have to present evidence or prove anything; technically won’t even have to call witnesses
* All burden to prove is on the prosecution
57
R. v. Lifchus (Proof of Beyond a Reasonable Doubt)
* While proof BRD are just everyday words, its specific legal meaning must be made clear to juries
58
How should BRD be explained to a jury?
o Burden of proof always rests with the prosecution
o Reasonable doubt is not doubt based on sympathy or prejudice
o Reasonable doubt is based on reason and common sense
o Reasonable doubt is logically connected to evidence or lack thereof
o BRD DNE proof beyond absolute certainty
o To be BRD, more is needed than “accused is probably guilty”
[I.e., in civil matters – balance of probabilities]
59
How should BRD NOT BE explained to a jury?
o Describing “proof BRD” as an ordinary term with no legal meaning
o Inviting jurors to apply the same standard of proof that they apply to the most important tasks in their own lives
o Equating proof BRD to proof to a moral certainty (should not leave courtroom feeling guilty about lack of certainty)
o Substituting the word “reasonable” with other words
o Telling jurors they may convict if they are “sure” of the accused’s guilt without introducing “proof BRD” standard
60
R v. Starr (BRD)
* Proof BRD is closer to absolute certainty than to balance of probabilities
* Trial judge required to explain that something more than probable guilt and less than absolute certainty is required
* Think of it like a scale – judge should situate the BRD standard between the two standards (probable guilt <–> absolute certainty)
61
R. v. S (J.H.) (Credibility)
* Lack of credibility on the part of the accused does not equate to proof of his guilt BRD
* If credibility becomes an issue, judge must explain the relationship b/w assessment of credibility and Crown’s ultimate burden to prove guilt
o Use W.D. analysis
62
R. v. W.D. (Test for Credibility and BRD)
* Instructions to jury re: credibility of the accused:
1. If you believe the evidence of the accused, you must acquit
2. If you do not believe the evidence of the accused but you are left in reasonable doubt (i.e., by evidence you do accept raised reasonable doubt or you are left not knowing who to believe), you must acquit
3. Even if you are not left in doubt by the accused’s evidence, you must ask whether you are convinced BRD of the accused’s guilt based on other evidence that you do accept
* Summary of WD
1. If there is reasonable doubt of guilt = ACQUIT
2. If based on the evidence you accepted you are satisfied BRD of accused’s guilt = CONVICT
63
R. v. Mullins-Johnson (Finding of Factual Innocence)
* There are only two verdicts in Canada: guilty and not guilty
* There are not two types of acquittal: factual innocence and where BRD standard is not met
* Findings of factual innocence do not fall under the ambit of criminal law
* Acquittal = proof not BRD
64
R. v. Oakes (1986) (Infringement of POI)
* “Person found in possession of a narcotic is presumed to be in possession for the purpose of trafficking unless they can prove otherwise”
o Deemed UNCONSTITUTIONAL
* Individual cannot be presumed guilty unless they can prove otherwise
* It is the state that must bear the burden of proof
* Individual must be proven guilty beyond a reasonable doubt
65
R. v. Downey (Infringement of POI)
* Statutory provisions where an accused is required to establish their innocence it is a contravention of POI
* So reverse onus is unconstitutional
o Unless it can be saved by s.1 of the Charter
66
The Act Requirement
* The commission of an unlawful act
* The Crown must always prove the necessary elements for all offences BRD
67
R. v. Lohnes (Commission of Unlawful Act)
* Public disturbance is a two-element act
* To satisfy actus reus, there must be:
1. Commission of an externally manifested disturbance under s.175
2. Cause a disturbance in or near a public place; either in the act itself or in a secondary reaction of those nearby (so public doesn’t always have to “react”)
* Test: court should weigh the degree and intensity of the impugned conduct against the degree and nature of peace expected in the relevant locale
* More than emotional disturbance is needed
* This determination is highly contextual
68
R. v. Burt (Vicarious Liability)
* Vicarious liability does not exist in Canadian criminal law
1. Where one person is solely responsible for the act of another simply based on the relationship between the parties
69
3 elements of possession (proved through direct or circumstantial evidence; no test, highly contextual)
1. Knowledge
2. Consent - Not mere acquiescence
3. Control
70
Three types of possession set out by S.4(3) of criminal code
Actual Possession, Constructive Possession, and Joint Possession.
71
Marshall v. R. (Joint Possession - Consent)
* Acquiescence alone is insufficient in establishing consent
* Where there is no consent, there is no possession
Appeal court ruled he did not consent. It was an error in judgment to stay in the car but his consent to riding in the car did not extend to consent for the marijuana being there, as the trial judge himself believed the testimony that he didn’t want it there.
• Ratio: consent as an essential element and precursor to addition of control
o mere acquiescence does not equate to threshold of consent
o both knowledge AND consent necessary
72
R. v. Terrence (Joint Possession - Control)
* Knowledge and consent cannot exist without the co-existence of some measure of control
* Crown must prove control, along with knowledge and consent, for there to be an act of possession
- Guy takes a uber ride. The car was a stolen car. Although Terrence might have the knowledge and consent but he didn't have the control of the car, so it is not possession.
73
R. v. Morelli (Constructive Possession - Control in the 21st Century)
• Ratio: merely viewing an image in a web browser is not sufficient CONTROL to constitute possession.
o Personal Possession:
Knowledge, consent, control
Knowledge comprises 2 elements: awareness of the object/what it is and that they have it.
o Usually there’s only one IP address; if found to have child porn on the computer, everyone in that household get charged.
o In the context of digital control, control requires download and storing; positive steps of control to constructive possession;
Not possession if in browser cache or temporary files
Visual depiction on webpage not possession
o Constructive possession: accused has knowledge of the character of the object, knowingly puts it in a place and intends to have the object there for his use or benefit or the benefit of others.
o Parliament responded by creating new charge for “accessing child pornography” and penalty is the same
• Elements of constructive possession:
o Knowledge of character of object
o Puts it in particular place
o Intent for use or benefit later
74
R. v. Pham (Constructive/Joint Possession - Knowledge and Control)
* Knowledge and control can be inferred from circumstantial evidence (i.e., neighbor testimony; placement of cocaine)
ex. Pham was not there at the time of the bust. Charged with trafficking.
Pham had left 2 days earlier and had not returned. Cocaine and money in bathroom in plain view.
* Ratio: “knowledge” element of possession can be inferred by circumstantial evidence
75
R. v. Chalk (Constructive Possession - Sufficient Control)
* Child pornography case
* Doctrine of innocent possession: where you possess a prohibited item but there is no moral culpability or moral blameworthiness associated to the possession
* Knowledge: has to have knowledge of criminal character of impugned item
* Control: not necessary for the accused to have viewed the file; it is about having power or authority over an item, whether exercised or not
Not necessary for individual to view material. Must be aware of what it is and take steps to control it.
* Doctrine of innocent possession: when one does not exert control beyond an intent to do the right thing.
76
R. v. Kubassek (De Minimus)
* “The law does not concern itself with trifles”
* Reserving the application of criminal law to serious conduct – protecting the accused from the stigma of conviction for trivial conduct
* Recall: Crown only proceeds where there is reasonable prospect of conviction and it is in the public interest to do so
* De Minimus is rare
77
Types of evidence
* Direct: observable
* Circumstantial: inferred
Rare in possession to have direct evidence. Often circumstantial inferences are applied to the situation to establish the elements of possession (knowledge, consent, control)
78
Consent making acts lawful; vitiate consent
true
79
In terms of the absence of consent, burden on crown to prove the complainant did not consent to sexual activity:
o Either didn’t consent to
- act itself
- Sexual nature of the act
- Identity of partner
80
If crown does not prove absence of consent, must prove vitiation of consent, and that proves absence of consent.
True
81
In the context of assault, no consent is obtained where the complainant does not resist because of
A) application of force
B) threat/fear of application of force
C) fraud
D) exercise of authority
82
Consensual combat is legal in Canada up unto the point of bodily harm; however, can one be proven to not consent even if they showed up based on threat of force, exercise of authority, etc.
True
83
Consensual combat is legal in Canada up to the point of bodily harm; however, can one be proven to not consent even if they showed up based on threat of force, exercise of authority, etc.
True
84
Jobidon
Facts: bar fight broken up and jobidon and victim went outside. They consented to fist fight. Jobidon knocked victim out and onto a car. He did not realize he was unconscious. Jobidon punched 4 more times and victim ultimately died.
Vitiate consent = absence of consent
o Ratio: the limitation demanded by s.265 is one that vitiates consent between adults that intentionally apply force causing serious hurt or non-trivial bodily harm to each other.
Court says type of harm: bodily harm = any hurt or injury that interferes with health and comfort of complainant and more than merely transient or trifling in nature
85
Moquin
* Case example of what is bodily harm
o An injury doesn’t need to interfere in a grave or substantial way.
o Simply must be more than transient and more than trifling
Ex. Fracture, broken bone, wound (obvious)
Ex. Scrape, laceration, bruise that causes discomfort
* Must look at overall effect and totality of injuries.
86
What are the elements that constitute fraud?
1) a dishonest act and
2) deprivation or risk of deprivation for the victim.
* Withholding of information/non-disclosure can constitute such a fraud
87
Cuerrier
Issue: whether or not failure to disclose HIV status is a fraud that vitiates consent.
* Facts: cuerrier was HIV positive. Was told to use condoms and disclose. He did not and had unprotected sex with 2 partners.
o They said they would not have consented if they knew he was HIV positive. They did consent to sex.
fail to disclose that they are HIV positive CAN constitute fraud that MAY vitiate consent.
Crown must prove non-disclosure had the effect of exposing the person consenting to a significant risk of bodily harm (Cuerrier test)
88
Hutchison
* Facts: victim consented to sexual activity but insisted on the use of a condom. Hutchinson intentionally poked holes in condom and she got pregnant
Dishonest act + risk of deprivation for the victim (get pregnant). Thus, it constituted fraud and vitiated consent.
89
S. 265.3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
* (a) the application of force to the complainant or to a person other than the complainant;
* (b) threats or fear of the application of force to the complainant or to a person other than the complainant;
* (c) fraud; or
* (d) the exercise of authority.
90
What count as deprivation?
o Deprivation: Court found depriving a woman of choice to be pregnant constitutes significant bodily harm
Must be a serious deprivation. Financial deprivation or emotional distress do not constitute deprivation.
91
2-step process to establish the absence of consent:
1) Does the evidence establish that there was no voluntary agreement to engage in the sexual activity in question?
2) consider where under S.265 or S.271, are there circumstances that have vitiated the consent?
92
* S.265 ss.4: honest but mistaken belief in consent
o Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
93
* De Minimis doctrine
the law does not concern itself with trifles.
94
What is an omission of duty to act?
Some sections in the criminal code require action, where an omission can be held criminally responsible.
PRINCIPLE: Unless there is a legal duty to act, you cannot be held criminally responsible.
- A mere omission to act cannot amount to an assault; some intentional act must have been performed
95
What is an actus reus?
Actus reus is the action causing the effect on the victim’s body (or mind).
96
What is a mens rea?
The mens rea is the intention to cause that effect.
- Not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act...however the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault.
- Court held that actus reus can be a series of actions, which constitute a continuous act.
97
The intent and the act must both concur to constitute the crime.
true
98
Fagan
* English case; parked his car on police officer foot. Was told to move but he refused.
* Issue: what is an assault? And when does the act begin and end?
* Ratio: for someone to be criminally responsible, both actus reas and mens rea must be present at the same time at some point in the act.
o Actus can be a series or sequence of actions.
* Holding: by not moving off the officer’s foot, he implemented mens rea of intent which constituted an assault.
99
Miller
* Drunk cigarette in hand causes fire. Goes to sleep in other room and ignores fire. Charged with arson
* Issue: Is he criminally liable for not acting?
* Ratio: where one creates a dangerous situation, one is under a duty to take reasonable steps to avert that danger. There is no rational ground for failing to take measures within one’s own power to counteract a danger.
100
Moore
* Ratio: when an officer witnesses an offence, there is a duty to disclose information to the officer. But not when an officer is INVESTIGATING an offence.
101
Thornton (OCA)
* Donates blood while knowing HIV positive. Charged with common nuisance under s.185ss.2. “does an unlawful act of failure to discharge a legal duty (omission)”
* Hold: S. 219 (criminal negligence); created legal duty by omitting to do their duty shows reckless disregard for others safety. Duty imposed by law (statue or common law)
* S.216; medical treatment duty. Giving of blood is medical treatment. Under legal duty to use “reasonable knowledge and care”.
* Ratio: Omission must arise from a legal duty. Can arise from statute or common law
102
Browne
* Swallowed bag of coke case. Overdosed. What duty was imposed to the other dealer to address it? Criminal negligence: failure to render assistance to take her to the hospital after he said he would. Trial judge found legal duty; s.217 everyone who undertakes an act is under legal duty if failure to act is danger or risk to life.
* Hold: APPELATE decision; undertaking definition threshold must be high to meet seriousness. A simple promise should not meet this. No grounds for a duty for him to act, therefore no criminal responsibility.
* Ratio: Simple expression of words does not trigger legal duty. Binding commitment to an undertaking necessary
Undertaking: An “undertaking” must involve a commitment upon which reliance can reasonably said to have been placed.
103
Peterson
* Elderly father resistant to be cared for. Son convicted on failing without lawful excuse to provide necessaries of life to someone under his charge.
* Ratio: resistance is not sufficient to dissolute a legal duty of care
104
Voluntariness
Voluntary meaning the result of a willing mind at liberty to make a definite choice or decision.
105
No act can be a criminal offence unless it is done voluntarily.
True
106
Consciousness is an essential condition for voluntariness.
True
107
King
* Dentist patient gets pumped with drugs. He signed form saying he wouldn’t drive. He is charged and convicted for impaired driving. He appeals.
* OVERTURNED AND UPHELD BY SCC; quash conviction on basis that he became unconscious while driving; his mental and physical condition was consistent with the drugs affect. Because he didn’t know the drugs affect or what he was doing
* Ratio: there must be conscious willpower to do an act whether the accused knew or not that it was prohibited by law
Basically he wasn't driving consciously.
108
Rabey
* Facts: student assaults girl with rock after she informs him that he is “just a friend”. Defense argued that the psychological blow counted as non-mental disorder automatism.
* Ratio: ordinary stresses of life do not constitute an external cause constituting an explanation for malfunctioning of the mind outside the category of mental disease.
o Automatism not a reasonable defense when no medical evidence; cannot be based in ordinary emotional reaction.
ordinary stresses is not the same as mental disease and it can not be used as a defence.
109
Parks
Killed a bunch of people while sleepwalking. Defend by using automatism.
* Ratio: automatism: an act done by a person who is not conscious of what s/he is doing; implemented legislatively in reaction to this. Insane v. non insane automatism.
o Automatism is a subsect of voluntariness for the crown to prove.
Voluntariness part of actus reas.
110
Lucki
* Slipped into other lane while driving when roads are slick.
* Ratio: not liable when action is involuntary
111
Wolfe
* Guy goes into bar, trespass notice so wasn’t supposed to be there. Bar owner gets sucker punched. Owner smashes phone on side of the head of puncher. Owner gets charged with assault causing bodily harm
* Trial judge says action by bar owner was reflex action. But convicts
* Court of appeal says reflex action is not voluntary and therefore owner can’t be liable
o No intent; involuntary. If no intent, there is no crime.
* Ratio: an involuntary act lacks the intent for criminal liability
112
Swaby
* The guilty act must be voluntary for actus reas to exist.
113
NO ACTUS REAS UNLESS FROM A WILLING MIND ABLE TO MAKE DEFINITE CHOICE OR DECISION
true
114
VOLUNTARINESS AS PART OF ACTUS REAS SO BURDEN ON THE CROWN.
true
115
What is Homicide?
- Homicide: commits homicide when directly or indirectly causes death of a human being.
- Not all homicide is culpable; non-culpable is not an offence (s.222(3))
116
What is the Smithers test? Smithers case
o Smithers test
- Criminal test of causation
- “Significant contributing cause” test
- All culpable homicide other than first degree
Causation test for everything except first-degree murder:
Facts: Manslaughter case. The accused was taunted during a hockey game. After he started a fight with his taunter. He kicked him in the stomach during the ensuing fight. The victim ended up choking on his vomit and dying by aspiration. Vomit ends up in the lungs because of a biological malfunction.
Hold: Smithers test. In order for accused to be found guilty of manslaughter, the kick had to have been a significant contributing cause to the death. Immaterial that the malfunction contributed, as it was probable that the kick contributed as well to the outcome.
Ratio: regardless of a person’s condition, if conduct significantly contributed to death (NOT JUST SOLE CAUSE), manslaughter is met if proven beyond a reasonable doubt
o Thin Skull Rule: you take your victim as they are.
117
What is the Harbottle test?
o Harbottle test
- “Substantial cause” test
- 1st degree murder test
* Facts: defendant sexually assaulted a girl with a partner. Partner does killing (strangling) while the defendant holds her down by the legs to stop her from struggling.
* Hold: test should be higher than Smithers test. Moral culpability must reach the stigma in the sentence.
o Crown must prove beyond reasonable doubt an act (or series of acts) of such a serious nature that they must be deemed essential, substantial and integral to causing death
Usually a physical role
No intervening act of another person resulting in accused no longer being substantially connected to the resulting death
o HARBOTTLE culpable. Significant enough in contribution by holding down the victim.
* Ratio: first degree murder test; “Substantial Causation”; Accused was an essential, substantial and integral contributing cause in first degree murder
118
Nette
Ratio: Smithers applies to all homicide other than 1st and all other criminal offences of causation
119
Talbot
Ratio: crown must prove beyond reasonable doubt with factual causation evidence
o Factual causation: physical/medical cause of death; act which without doing, death would not have occurred
o Legal causation: among those actors factually causing, who should be accountable under law (significant or substantial causation)
punch as self-defence killed the guy so cannot prove whether the kick would have killed the guy (BRD failed)
120
F.(D.L.)
* Ratio: test for all other than first degree murder is significant contributing cause test (Smithers);
o “thereby caused” = Smithers test
121
Maybin
* Ratio: an intervening act will not sever legal causation if the act is reasonably foreseeable
o An intervening act by a 3rd party must be of such a nature to independently overwhelm the actions of the first party in order to sever the chain of legal causation
A punched B to death. The bouncer came along and punched the unconscious B. Bouncer's action was foreseeable therefore, it didn't sever the causation chain. We examine the act itself to see if it significantly contributes to B's death.
122
* Factual and legal causation must be established to form that moral blameworthiness.
True
123
* Factual evidence of causation is not limited to direct or immediate cause, nor the most significant cause.
True
124
* An indirect or significantly contributing factor/action can lead to factual causation.
True
125
What is Mens rea
an intention to do the immediate act or bring about the consequences of the act, or recklessness as to such act or consequences.
126
Absolute and strict liability crimes do not require Mens rea
true
127
murder requires specific intent to kill.
Other crimes don’t require any state of mind but require criminal negligence, a kind of legal fault.
true
128
Subjective standard of mens rea
o crimes are assumed to have subjective fault requirement under common law ie individual’s state of mind, not a “reasonable person’s”.
o All personal factors are taken into account ie race, gender, age, poverty, etc
Intention
Willful blindness
Recklessness
129
Objective standard of mens rea
* Objective:
o Stated in legislation
o No personal factors taken into account
o Reasonable person standard; “Marked departure from objective norm”
o Negligence uses objective standard
130
Hundal (Clarifies objective and subjective)
subjective test seeks to determine what was actually in the mind of the accused at the time the offence was alleged to have been committed. The focus is whether that accused in his personality, situation and circumstances actually intended, knew and/or foresaw the consequences as the case may be.
131
Theroux
What is the fault requirement for fraud?
* Ratio: the term mens rea properly understood does not encompass all the mental elements of a crime. Distinction between mens rea and mental elements. True mens rea is the criminal intent or frame of mind.
o Mens rea refers to wrongful intention of the accused. Function is to prevent conviction of the morally innocent. Did accused intend the consequences or was reckless or willfully blind to the consequences.
* Leaving aside negligence and absolute liability offences, the test is subjective in criminal violations.
132
Mulligan
* Ratio: a person’s actions are usually a good indicator of intent, but it is not alone the only evidence to consider for mens rea.
133
Ortt
* Ratio: it is an error in law to say to a jury it is a presumption a person intends the natural consequences of their actions. A person generally intends to cause the consequences of their actions, but it is not a legal presumption.
o A judge can talk about reasonable or common-sense inferences based on the actions of the accused or other evidence.
134
Walle
* Confirms that juries and judges can make common sense inferences that a sane and sober person intends the natural and probable consequences of their actions.
* A jury can be instructed “a person usually knows the reasonable consequences of their actions and means to bring them about”
135
What are regulatory offences?
Regulatory: Offences that are concerned with protecting public and social interests ie tobacco, pollution, traffic offences. Mechanisms employed by government to further public policy objectives
136
Sault ste. Marie (Regulatory offences)
* City sued over pollution resulting from a landfill. Caused runoff into the river
The birth of strict liability
there was either full subjective mens rea or absolute liability. SCC decided there was a middle ground of STRICT LIABILITY.
* In regulatory offences, it would be hard for crown to prove mens rea. So strict liability allows for prosecution to proceed without proving mens rea.
137
True Crime
Criminal in true sense
Mens rea is positive state of mind like intent, knowledge, recklessness that must be proven by prosecution either as inference from act committed or additional evidence
“Willfully, with intent, knowingly, intentionally” wording in statutes
138
Strict Liability
No necessity for prosecution to prove mens rea, only the actus reas/prohibited act (beyond reasonable doubt)
Left open for accused to avoid liability by proving they took reasonable care ie prove consideration of what a reasonable person would have done in the circumstances (balance of probabilities)
139
Absolute Liability
Crown must prove beyond reasonable doubt the actus reas, but no mens rea
No defense of reasonable care for defendant
o Absolute liability would be if legislation has made it clear that guilt would follow simple proof of the prescribed act committed.
140
Regulatory Offences are usually strict liability crimes unless
the statutory provisions use the words such as willfully, with intent, knowingly, and intentionally. (Full mens rea)
141
If the regulatory offence has a chance of imprisonment, it cannot be absolute liability but can be strict liability.
true
142
Strict liability crime, at the minimum, must provide an opportunity for due diligence defence.
true
143
Absolute liability crime has no chance of imprisonment
true as that would violate section 7 of the charter.
144
True crimes have assumptive subjective mens rea, unless specifically objective in the legislation.
True
145
Simpson
Ought to know (Objective test)
* Ratio: SUBJECTIVE INTENT IN MURDER CASES; error to read in “ought to know”
146
Edelenbos
* Ratio: crime of murder requires proof of a particular state of mind. 1 of 2 things must be proven for unlawful killing to be murder.
o Accused meant to kill victim
o OR meant to cause bodily harm that knew was likely to result in death.
* Ratio: Likely = subjectively so appreciable that to engage in the conduct that it would be seen as a virtual equivalent of an intentional killing; MUST HAVE SUBJECTIVE KNOWLEDGE THAT DEATH IS LIKELY, PROVEN BEYOND REASONABLE DOUBT.
147
Constructive murder
that which exists not in fact, but as a result of operation of the law. Iet someone else kills 3rd person in the shared commission of an unlawful act. (S.230 is now repealed)
148
Vaillancourt
* Issue: does objective test in s.230 D undermine charter rights in that it doesn’t require any mens rea? (ie intent to do the robbery, someone died but he had no mens rea for that; SUBSTITUTED INTENT FROM ROBBERY FOR INTENT IN KILLING)
* Hold: must be SOME special mental element in order for culpable murder ie specific intent to kill or cause bodily harm known likely to cause death. S.230(d) violates charter and is of no effect.
* Ratio: stigma of murder carries with it onus for proof of specific mental state. Level of blameworthiness must rise to level of punishment
149
Martineau
Section 230(a) of the Criminal Code is contrary to the Charter.
Section 230(a) of the Criminal Code states that a culpable homicide is murder “whether or not the person means to cause death… and whether or not he knows that death is likely to be caused” by intentionally causing bodily harm while committing or attempting to commit a crime or trying to flee afterward.
A person cannot be convicted of murder without proof of subjective foresight of death.
150
SPECIFIC FAULT REQUIREMENT FOR MURDER OR ATTEMPTED MURDER IS SUBJECTIVE FORESIGHT OF DEATH (MEANT TO KILL OR CAUSE BODILY HARM KNOWING IT IS LIKELY TO CAUSE DEATH)
true
151
S.229 Murder. What is Murder?
culpable homicide is murder when a person causes a death of a human being, means to cause his death, or intends to cause bodily harm and is reckless to whether death ensues or not
152
What is 1st degree murder ?
Murder is 1st degree when it is planned and deliberate
* FIRST DEGREE = LIFE IMPRISONMENT (25 YEARS)
o NOT ELIGIBLE FOR PAROLE TIL 25 YEARS, ON PAROLE FOR LIFE AFTER
* 1st degree = higher degree of moral culpability
153
What is 2nd-degree murder?
Any murder that is not 1st degree murder
* SECOND DEGREE = LIFE IMPRISONMENT (25 YEARS)
o COURT CAN SET PAROLE ANYTIME 10 YRS OR AFTER
154
Smith
Smith acted in the moment and couldn’t have planned beforehand. To be “planned and deliberate”, must have the time to contemplate the consequences of the actions before doing them.
AN ACT THAT IS DELIBERATE IS A CONSIDERED ACT, NOT IMPULSIVE. HAS WEIGHED ADVANTAGES AND DISADVANTAGES. DELIBERATION MUST TAKE PLACE BEFORE THE MURDER.
o Planning should not be confused with intention. A plan would occur after the intent to murder. SOME EVIDENCE THAT THE KILLING WAS THE RESULT OF A SCHEME OR DESIGN PREVIOUSLY FORMULATED OR DESIGNED BY THE ACCUSED AND THE KILLING WAS THE IMPLEMENTATION OF THAT SCHEME OR DESIGN. A MURDER COMMITTED ON A SUDEEN IMPULSE WITHOUT PRIOR CONSIDERATION IS NOT A MURDER.
155
Nygaard & Schimmens
o Planning and deliberating” an action to cause bodily harm that is likely to result in death meets” the requirement for first degree murder
