Criminal Law Flashcards
R v. Currier
Facts
Henry Currier HIV positive and public nurse tells him to use condoms every time he has sex and inform his partners
Three weeks later meets KM and lies to her telling her he tested negative for HIV eight months earlier
They had unprotected sex on a regular basis\
KM contracted Hepatitis and she and Curvier tested for HIV she test negative he tested positive but she still had sex with him the relationship lasted 18 months
After it ended Currier began relationship with another woman BH that did not know he had HIV
When BH found out about his status she ended the relationship
BH and KH testified that if they had known about the HIV they would not have had unprotected sex with him
Curreier was charged with two accounts of agravated sexual assault
At the time of the trial, neither compliant had tested positive for the virus
Legal issues
Is this sexual assault?
Decision
SCC agreed that he should be convicted of sexual assault which required a re-intpretation of of the law. Currier failed to obtain true consent of his partners to unprotected sexual intercourse, failure to disclose HIV positive status vitiated (made invalid) the consent of the other partner.
What is An Indictable Offense
Most serious offences
Police have broader powers of arrest and search
Accused may choose to be tried by a judge or jury
More serious penalties including life imprisonment
Eg. MURDER, sexual assault, robbery, arson
What are Hybrid offences
May be tried as either summary or indictable offence
Crown decides depending on the circumstances of the case. This will involve the background of the accused and the nature of the offence committed
Theft under $5000, assault, calling false fire alarm
What are Summary Offenses
Less serious
Simplified legal proceedings
Limited sentencing power
No right to trial by jury
Prosecuted within strict time limits
Less stringent bail conditions
What are Quasi-Criminal Offenses
offenses that are not classified as true criminal offenses but are treated as such due to their public and regulatory nature.
Strict Liability Offenses
Prosecution does not need to prove mens rea, sufficient evidence with actus reus
The defendant’s knowledge is important
Includes certain traffic violations and environmental offenses
Actus Reus
the wrongful act or omission in a criminal offence
Mens rea
Rea the blameworthy mental element in a criminal offence
R v. Vu
Facts
On April 4, 2006, Graham McMynn, the son of a wealthy Vancouver businessman, was kidnapped at gun- point in Vancouver, BC and held captive for 8 days.
rescued by police on April 12. Six persons, including Sam Tuan
Vu, were arrested and charged with kidnapping and unlawful confinement under ss. 279(1) and (2) of the Criminal Code.
In 2008, the trial judge found no evidence that Vu was involved in the initial taking of McMynn or had prior knowledge that it would occur. But fingerprint, footprint, and DNA evidence connected Vu three houses where McMynn was confined. Further evidence established that Vu was involved in the pur- chase of duct tape and a tarp during the time that McMynn was confined. He and a co-accused were also found to have discussed the issue of ransom and threatened to kill McMynn if it was not paid.
Legal Issues
Should Vu be convicted in kidnapping even though he did not commit the initial taling of McMynn? Should he be convicted of the lesser charge of unlawful confinement
Decision
the SCC upheld Vu’s conviction for kidnapping.
kidnapping is a continuing offence that includes the victim’s confinement. As long as the victim is confined, the crime of kidnapping continues.
R v. Hamilton
Facts
accused sent out emails to people advertising the sale of “Top Secret Files” which he himself had purchased off of a website. This email advertised that inside the files was software that would allow the buyer to generate valid credit card numbers. The accused sold at least 20 copies of the “Top Secret Files”, which in addition to the credit card software also included instructions on how to make bombs and how to break into houses.
The accused did not advertise anywhere in his email the fact that these other “how to” instructions were part of the file package.
There was no evidence that either he or his customers had used the fraudulently generated credit card numbers, or that any of his clients had used the instructions to make bombs or break into houses in order to commit crimes.
charged with four counts of counseling the commission of an indictable offence, including fraud, under s.464 of the Criminal Code.
Legal issue
Was there mens rea there to accuse him?
Descion
The Supreme Court of Canada allowed the appeal on the count for counseling fraud,
The fact that the accused had never read the files about bomb making or breaking into houses, meant he lacked the mental intent to counsel people to commit these other crimes.
in order to establish the presence of mens rea the Crown must show that the accused either intended that others commit a crime, or that the accused knowingly counseled others to commit an offence, and was aware that there was an unjustified risk that they would actually commit a crime as a result of his encouragement.
The Supreme Court, also found that the trial judge had mixed together the idea of
“motive” and “intent”. Although the accused’s motive was to make money out of this venture this did not change the fact that he was intending to induce people to commit fraud through use of the bought files.
negating defences
Defences that raise a reasonable doubt about whether the accused committed the offence charged;
Negates an essential element in the Crown’s case – either the actus reus or the mens rea.
Affirmative Defences
Provide a justification for an accused’s conduct, or that the accused should be excused from punishment because criminal conduct was the only reasonable option.
Automatism
A condition in which a person acts without being aware of what he or she is doing. For example, someone who sleepwalks gets up and goes to the washroom, but does not remember getting up and going.
Negates the actus reus of a crime because someone in such a state does not voluntarily – they have no conscious control over their actions.
There are 2 types of automatism: insane and non-insane automatism. (negating defense)
Intoxication
Intoxication is the condition of being overpowered by drugs or alcohol to the point of losing self-control.
It is not generally a defence to a crime but the exception is a crime of specific intent. For example, a person may be too intoxicated for the subjective intent of murder, but would still be guilty of manslaughter, an objective intent offence.
Another exception might be someone so intoxicated that it amounts to a mental disorder. However, this defence is rarely used and cannot be used in cases of assault or sexual assault.
The SCC ruling in R. v. Brown (2022) is very significant to the application of the Intoxication defence. (negating defense)
examples of affirmative defenses
Self-Defence
Necessity
Duress/Compulsion
Provocation
Defence of a Dwelling
Battered Women’s Syndrome
Consent
