Criminal Law

Question 1

Define criminal law

Answer 1

Formal, punitive response against unwanted forms of conduct

Is a symbolic message that society disapproves of an act and that a formal response by the state is necessary

Question 2

Actus reus

Answer 2

Is the physical aspect of the crime, needed alongside mens rea to establish criminal liability
Requires voluntariness and commission

Question 3

Actus reus - voluntariness

Answer 3

Criminal conduct is only attached to physical voluntary acts

Question 4

Actus reus - commission

Answer 4

To be guilty of a particular crime, you must commit the acts stipulated in the statutory provision creating the offence

Question 5

R. v. Bird

Answer 5

Case relating to commission of the actus reus
Bird charged with extortion when he tricked a married woman into having with sex with him by threatening to ruin her husband’s reputation
Defense argued that extortion only relates to wanting to procure a physical object

Question 6

Actus reus - causation

Types of causation

Answer 6

Not always required
To be guilt of certain crimes, you must not juts commit the act but also cause specified consequences (e.g. assault causing bodily harm)
Factual causation: determined using the but for test (would these consequences have occurred but for the actions of the accused?), is objective and insufficient on its own
Legal causation: was the accused’s act a significant contributing cause, process of fixing moral blame

Question 7

R. v. Smithers 1973

Answer 7

Case relating to causation
Did the accused’s kick to the victim’s stomach cause his death, or was the victim’s death caused by his medical condition that was triggered due to the kick?
Yes there is both factual (but for test) and legal causation
The accused must take his victim as he finds him

Question 8

Mens rea

Types of mens rea (5)

Answer 8

Mental aspect of the crime that must be present for criminal liability
The accused must have intended to commit the crime
Prevents the conviction of the morally innocent

Intent, knowledge, recklessness, willful blindness, and criminal negligence

Question 9

Mens rea - intent

Answer 9

Involves the exercise of free will to intentionally achieve a result, must be objectively proved
Different from motive (explanation for why a person acted)

Question 10

R. v. Duggan

Answer 10

Case relating to intent
3 boys were convicted of theft, defense argued that the intention of the act was a prank not theft because they weren’t trying to be inconspicuous

Question 11

Mens rea - knowledge

Answer 11

The element of fault can be based on what the accused knew rather than what they intended

Question 12

Mens rea - willful blindness

Answer 12

Usually read in by the courts
Is subjective, not based on what the person should have known
If a party has his suspicion aroused but then deliberately omit to make further inquiries because he wishes to remain in ignorance, he is deemed to have knowledge

Question 13

Mens rea - recklessness

Answer 13

Is found in the attitude of one who was aware that their conduct could bring about results prohibited by the law, but still took that risk, subjective

Question 14

R v. Sansregret

Answer 14

Case relating to recklessness
Victim had intercourse with the accused because she felt threatened for her life
Accused knew that the victim had reported him for sexual assault the first time an incident like this happened but still committed the act a second time

Question 15

Mens rea - criminal negligence

Answer 15

Is a marked departure from the standard of care that a reasonable person would observe in the accused’s situation
When one is doing anything or in omitting to do anything that is their lawful duty to do, showing reckless disregard for the lives/safety of others
Liability is imposed because of what the accused should have known/foreseen
Objective
The standard of care must be assessed without considering the accused’s personal characteristics unless they were incapable of appreciating the risk involved

Question 16

R. v. Hundal 1993

Answer 16

Case relating to criminal negligence
Hundal appealed his conviction for dangerous driving causing death, said that he thought he could not stop at the intersection so he sounded his horn and proceeded through the red light
Court ruled that Hundal’s conduct amounted to a marked departure from the norm

Question 17

Criminal code s.24

Answer 17

Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence
In a criminal attempt the mens rea is of primary importance and the actus reus is only the necessary element
There must be both actus reus and mens rea to constitute a criminal attempt, but the criminality of misconduct lies mainly in the mens rea

Question 18

Measures of preparation v.s. attempt

Answer 18

Proximity - how close was accused to completing the offence, how much had the accused already done, how clear is it that the accused was directing himself towards the specific offence, etc
Dangerously close to completion test - how close the accused’s conduct is to perpetrating harm
The reason for not completing the offence (e.g. was it because of change of heart or because of interruption)
Silent movie test - if a reasonable observer would conclude that the accused’s actions would unequivocally lead to the offense (however, few actions are completely unambiguous and the test ignores evidence of intention)
Next to last step theory - in order to be convicted of an attempt, the accused must have done everything except the last step to complete the crime

Question 19

R. v. Deutsch 1986

Answer 19

Case relating to preparation v.s. attempt
Accused was charged because he was trying to hire a secretary to have sexual intercourse with clients
Trial judge found that the acts of the accused (ads, interviews) were mere preparation and too removed from the complete offence to constitute actus reus

Question 20

Define accessory to an offence

Criteria for accessory to an offence

Answer 20

Is a guilty non perpetrator who aids/abets/counsels someone who committed the crime (they are committed for the offence itself)

Actually commit it
Does or omits anything for the purpose of aiding any person to commit it
Abets any person in committing it

Question 21

Aiding v.s. abetting

Answer 21

Aiding = rendering some assistance to the principal before or during the crime for the purposes of assisting them commit the crime, or if they were willfully blind to the principal's intentions, simplest method to conviction
Abetting = encourage the principal before or during the crime for the purposes of encouraging the principal commit the crime, or if they are guilty of inaction

Question 22

R. v. Dunlop and Sylvester 1979

Answer 22

Case relating to being an accessory to a crime
Judge had to decide if 2 men who were present while the victim was being raped should also be convicted of rape
In previous cases courts ruled that mere presence at a crime doesn’t equal encouragement, thus it is insufficient on its own for conviction
Other factors that could make presence a path to conviction could be prior knowledge of the main perpetrator’s intentions or attendance for the purposes of encouragement

Question 23

Accessory to an offence - common intention

Answer 23

If 2 people plan to commit a crime together, each can be convicted of any other offence that the partner commits in carrying out the plan if they knew/ought to have known that the other offence would probably result from committing the planned crime

Question 24

Unsuccessful counselling

Answer 24

The counsellor can be convicted for the separate crime of counselling even if the intended perpetrator didn’t commit the offence counselled
Required mental element is the intention that the other person commit the offence, or knowledge of the risk that the counselled person would likely commit the offence
Can be broadly applicable

Question 25

R. v. Mcleod and Georgia Straight 1970

Answer 25

Case relating to unsuccessful counselling
Vancouver newspaper Georgia Straight was convicted for counselling readers to grow marijuana
Prosecution didn’t need to prove that the offense counselled was actually committed

Question 26

Mistake of fact

Answer 26

Is the assertion by the accused that he mistakenly believed a set of facts that, if true, would have rendered his actions legal
Committed the actus reus but did not have the mens rea
Mistake generally only needs to be honest, not reasonable
R. v. Pappajohn

Question 27

Mistake of law

Answer 27

Is the ignorance of the law by a person who commits the offence
Is not a valid defense

Question 28

R. v. Campbell 1892

Answer 28

Case relating to mistake of law
Accused was convicted of immoral performance (dancing nude), argued that she only agreed to perform the act because the Alberta SC previously ruled that this did not constitute immoral performance (this ruling had been repealed)
Judge concluded that while honest and reasonable mistakes can happen, the legal system should not work on the basis of the state of understanding of the law of an accused person

Question 29

Drunkenness

Answer 29

Is not a defense to crime, is only a defense to the extend that it contributes to lack of mens rea
Usually only applies to specific intent crimes and not general intent crimes –> allows courts to keep the use of this defense within tolerable limits

Question 30

R v. George 1960

Answer 30

Relating to drunkenness as a defense
Accused was convicted of robbery but let go on basis of drunkenness, Crown appealed to SSC
SSC asked whether the accused’s drunkenness was so sever that he was incapable of applying force intentionally
SSC charged George with common assault (general intent crime)

Question 31

Rules for determining validity of drunkenness as a defense (Beard 1920) (3)

Answer 31

Insanity produced by drunkenness is a defense
Evidence of drunkenness rendering accused incapable of forming specific intent should be considered
Evidence of drunkenness that doesn’t prove incapacity is insufficient as a defense

Question 32

Criminal code: where belief in consent is not a defense (5)

Answer 32

If accused’s belief arose from self induced intoxication
If accused’s belief arose from recklessness or willful blindness
If accused’s belief arose from circumstances in which no consent is obtained
If accused did not take reasonable steps to obtain consent
f there is no evidence that complainant’s consent was actively expressed

Question 33

Necessity

Criteria for this defense to succeed (3)

Answer 33

Is the plea by the accused that they faced such perilous circumstances that they had no choice but to break the law
Recognizes that in emergencies human instincts can force disobedience
Excuses the wrongful conduct, doesn’t justify it (i.e. make it right)

Defense will only succeed where

• the accused faced an urgent situation of urgent and imminent peril
• there was no reasonable legal alternative
• there is proportionality between harm inflicted and harm avoided

Question 34

R. v. Perka 1984

Answer 34

Relating to defense of necessity
Drug smugglers were forced to offload in Canada due to a storm, were charged with drug trafficking
Accused used defense of necessity, claimed they did not plan to import into Canada
Crown argued that since appellants were already committing a crime when emergency circumstances arose, they should be denied defense of necessity

Question 35

Duress

Criteria for this defense (6)

Answer 35

Specific application of necessity, person is intentionally threatened with harm unless they commit a crime

For this defense to apply

• there must be explicit/implicit threat of present/future harm to the accused/third party
• accused must reasonably believe threat will be carried out
• there is no reasonable avenue of escape
• there is a close temporal connection between threat and harm threatened
• harm inflicted by accused is proportional to harm threatened
• accused is not party to conspiracy or association

Question 36

R. v. Ruzic 2001

Answer 36

Accused entered Canada with false passport and heroin, claimed that she had done it under duress because a third party threatened her mother
Crown appealed to SSC because accused was acquitted even though threat wasn’t immediate
SSC dismissed Crown’s appeal, holding that the immediacy requirements of duress defense infringe on s.7 of the Charter

Question 37

Provocation

Criteria for defense to succeed (3)

Answer 37

Not exactly a defense, but can be considered a mitigating factor when sentencing for murder (can reduce charge to manslaughter)
Is a concession to human weakness

For defense to succeed

• provocation must be a criminal conduct punishable by at least 5 years in prison
• an ordinary person with relevant characteristics in similar circumstances would have been deprived of self control (objective)
• the provocation actually did deprive the accused of self control and cause them to kill before their was time for their passion to cool (subjective)

Question 38

Self defense
Criteria for defense to succeed
Factors to consider (8)

Answer 38

Justification based defense, the accused is acting rightly in trying to protect themselves from unlawful force applied by others
Doesn’t apply if the force defended against was required/authorized by law, unless the accused believed on reasonable grounds that the force was unlawful

For defense to succeed

• person believe on reasonable grounds that force/threat of force is being used against them or another
• their own act of force is for the purposes of defense
• the act committed is reasonable in the circumstances

Factors to consider

• nature of force/threat
• availability of alternative responses to the threat
• person’s role in the incident
• use of weapons by either party
• size/age/gender/physical capabilities of parties
• any existing relationship between parties
• nature and proportionality of person’s response to the force/threat of force
• whether person knew that force/threat of force was lawful

Question 39

R. v. Cadwallader 1966

Answer 39

Case relating to defense of self defense
14 year old boy shot his father 5 times because he believed his father was going to kill him, had testified to over 20 incidents where he had feared for his life and also testified that up until the last point blank range shot he did not want to kill his father, trial judge convicted him for manslaughter on the basis that the extent of force used was far more than was reasonable under the circumstances
In the appeal by the accused, court needed to determine whether the accused used more force than he reasonably believed was necessary
Appeal was allowed, conviction overturned