Criminal Law Canadian

Question 1

Motive

Answer 1

Has been described as the reason that a person chooses to engage in Conduct; it is generally not an essential element of any offence (especially for general intent crimes).

Ordinarily the Crown does not have to prove motive; but evidence of a motive can be of benefit/relevant to the crown’s case - proof of intention/proof of state of mind, identity, etc.

Motive is sometimes referred to as “ulterior intention” (the reason why the person did what they did). Becomes important for specific intent crimes, such as murder which requires a specific intent to kill.

Question 2

General Intent

Answer 2

Means that the act was committed intentionally (as opposed to “by accident”); minimal intent/ but remains sufficient to sustain a conviction if other elements are proven beyond a reasonable doubt.

Question 3

Specific Intent

Answer 3

Means that the act was committed with the specific intention of doing something (ex. muder = specific intent to kill is required)

The common law will establish whether an offence requires specific or general intent.

Question 4

Hibbert Case

Answer 4

Co - accused individual took Hibbert to victim’s apartement at gunpoint and forced him to get the victim to let him in over intercom so the co-accused could shoot the victim. Co-accused and Hibbert both charged with attempted murder

Issue was the meaning of “Purpose” in s.21(1)(b)

Ratio - Preferred definition of purpose is equated with the intention for this section.

Question 5

Recklessness

Answer 5

Involves knowledges of danger of risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. Culpability is justified by consciousness of the risk and by proceeding in the face of it.

Question 6

Wilful blindness

Answer 6

Arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not want to know the truth. He would prefer to remain ignorant. Culpability is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry.

Question 7

Buzzanga and Durrocher

Answer 7

Appellants printed and distributed a document which opposed the building of a new French high school - the document contained some inflammatory language - Charged under s. 218.2(2) (now 319(2))

As a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which the does in order to achieve some other purpose, intends that consequence.

In s. 218.2(2), wilfully does not include recklessness.

• Subsection one allows intention or reckless inciting of hatred in the listed circumstances, but S.218.2(1) does not.

Question 8

Theroux

Answer 8

Accused charged with fraud because of a misrepresentation he made to creditors (said deposits were insured when they were not). Accused honestly believed that deposits would not be lost.

Ratio: Recklessness is included in the mental fault element for fraud.

Mens rea for fraud requires proof od:

• subjective knowledge of the prohibited act
• subjective knowledge of that the above act could have the deprivation of another as a consequence. (This includes where the accused is reckless as stated above)

Question 9

Boulanger Case

Answer 9

Accused held a public office; had subordinate prepare a report to show his daughter was not at fault for auto accident thereby avoiding having to pay the insurance deductible.

Ratio: men’s rea can be inferred from circumstances. Court will look at circumstances surrounding the incident

Looking at the circumstances - subjective.

Question 10

Sansegret

Answer 10

Leading case on definition of recklessness and willful blindness in the context of sexual assault.

Accused charged with rape where consent extorted from threats of bodily harm.

Ratio:
Willful blindness: arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not want to know the truth. He would prefer to remain ignorant. Culpability is justified by the accused’s fault in deliberately failing to inquiry when he knows there’s a reason for inquiry.

People can’t use mistake of fact if they’re willfully blind. Today, an accused has to show he took reasonable steps, where certain mistakes are alleged

Question 11

Briscoe and Lagace

Answer 11

Willful blindness and recklessness are distinct.

They do not define mens rea for a particular offence. Rather they offer to substitute for actual knowledge whenever knowledge is not a component of the offence itself.

Willful blindness = deliberate ignorance.

Question 12

Blondin

Answer 12

Accused charged with importing a narcotic and found not guilty at trial. Crom appeals.

Recklessness and wilfully blindness are included in the fault requirement for possession of drugs. It is open to the court to find that he bought the drugs, and had either been reckless about what the substance was, or WB to what it was, and then draw the inference that he suspected it may be a narcotic.

Question 13

Summary slide 27 - 30 from class 1

Question 14

Five Categories for objective fault

Answer 14

A. Dangerous conduct offences; like dangerous driving.

B. Careless conduct offences; careless storage

C. predicate offences with consequences/objective foresight requirement.

D. Offences based on criminal negligence

E. Duty-based offences.

Crown does not need to prove intent, recklessness and wilful blindness.

Objective standard test: what a reasonable and prudent person would have done.

Question 15

O’Grady v. Sparling

Answer 15

Careless driving case

Defines the diference between recklessness and negligence

Recklessness - advertence (aware of risk but proceed anyway)

Negligence - inadvertence (didn’t pay attention or didn’t act as a reasonable person would)

Criminal negligence is a form of recklessness that suggests/signifies advertence

required: objective foreseeability of the risk of bodily harm.

Question 16

Tutton & Tutton

Answer 16

Manslaughter of 5 year old son for failure to provide

Historical cases. No ratio.

Question 17

Anderson

Answer 17

Criminal Negligence causing death from running a red light and killing the passenger of the car he hit.

The split from Tutton.

Historical cases. No ratio.

Question 18

Hundal case

Answer 18

Here, they applied objective test.

Objective test means it is not necessary for there to be proof that the accused intended or was aware of the consequences of his actions.

Question 19

Creighton case

Answer 19

Accused charged with manslaughter for injecting the deceased’s body with cocaine she OD’d from.

Objective mens rea not concerned with what was actually in accused’s mind, but with what should have been there had the accused proceeded reasonably.

Here, the negligence must constitute a marked (significant) departure from the standard of a reasonable person.

Objective test:

The objective standard is whether a reasonable person in the circumstances would have foreseen the risk of harm from their actions. If this is satisfied, then the necessary mens rea has been proven.

The question is what the reasonably prudent person would have done in the circumstances.

This reasonable person standard of care is the same in all cases, but it can change based on the activity in question, and the circumstances of that particular case.

Only exception, incapacity to appreciate the nature of the risk which the activity in question entails.

Question 20

Beatty

Answer 20

Modified the objective test.

Modified objective is the standard - crown doesn’t need to prove a positive state of mind, but the actual intent is relevant.

Because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.

As a result of the ruling in this case, the test which applies to any crime requiring objective fault where there is a risk of imprisonment must apply the modified objective test as described in class.

Question 21

Creighton and Beatty Summary

Answer 21

Creighton looked at what a reasonable person would do in the circumstances, ignoring the accused’s state fo mind (objective)

Beatty added the accused’s state of mind as a factor in what a reasonable person in that state of mind would do (modified objective)

Make sure you know the difference between these two

Question 22

F. (J.)

Answer 22

Manslaughter of foster child who died of multiple blund force traumas.

Three degrees of objective fault requirements:

• Due diligence (Strict liability) - onus on the defence.
• A marked (significant) departure from the objective norm (Beatty) for crimes with objective fault requirements.
• Criminal negligence: a marked and substantial departure form the objective norm of reasonable case for offences based criminal negligence under s.229.

Question 23

Javanmardi Case

Answer 23

Charged with unlawful act manslaughter and criminal negligence causing death after giving naturopathic treatment which led to death of 84 year old victim.

Expanded the Creighton test by stating that there can be an “elevated de facto standard of care” taking into account the nature of the activity.

Ex. a doctor would have a higher standard of care than an ordinary person in something involving medical care

Question 24

H. (A.D.)

Answer 24

Case where lady gives birth in Walmart bathroom not knowing she was pregnant. Believed baby was deal, left it in toilet, baby later found alive.

Note CC s. 218 at issue - what type of mens rea required?

SCC found subjective fault required for s. 218.

Ratio: There is a presumption that Parliament intends crimes to have a subjective fault element.

In that case of true crimes there is a presumption that a person not be held liable for the wrongfulness of his act if that act is without mens rea mere negligence is excluded from the concept of the mental element required for conviction.

Question 25

Mental Fault Requirement

Answer 25

Guilty mind: the wrongful intention of the accused.

Its function is to protect the morally innocent; those who do not intend the consequences of their actions.

Tests for mens rea - Modified objective or subjective test .

Question 26

Mistake of Fact

Answer 26

Someone truthfully mistakened regarding a fact or facts of the law.

A mistake of fact arises when one honestly believe something that is false to be a fact.

One commits an act when thinking the act was lawful but committed the crime.
Ex. One carries marijuana on the street and thought it was legal to carry marijuana.

Section 19 of the criminal code, ignorance of the law is not a defence.

Question 27

Rules that apply to the mistake of fact (On Exam for sure)

Answer 27

1. where there is subjective mens rea, the mistake needs to be honestly held with reasonableness only relevant to the assessment of credibility.
2. where the fault element is objective negligence, the mistake must be both honest and reasonable
3. where there is a due diligence defence, the mistake must be both honest and reasonable; with an onus of proof on the accused in the case of regulatory offences; and
4. Where the offence is one of absolute liability, mistake of fact is not a defence

Question 28

1. where there is subjective mens rea, the mistake needs to be honestly held with reasonableness only relevant to the assessment of credibility. (ex. a true crime when subjective fault standard applies)

Answer 28

If the mistake is honestly held, this may negate the mens rea.

When the mistake is plainly unreasonable, the court will question the honesty of the person. The court may not accept that the person made the mistake.

*Just honestly

Question 29

2. where the fault element is objective negligence, the mistake must be both honest and reasonable.

Answer 29

Negligence cases.

The mistkae must be both honest and reasonable.

*both Honest and reasonable.

Question 30

4. Where the offence is one of absolute liability, mistake of fact is not a defence

Answer 30

Ex. Speeding - Absolute Liability Offence

No mens rea is required and therefore no mistake of fact can be a defence.

Question 31

R. v. Hess and R. v. Nguyen

Answer 31

An offence that precludes a mistake of fact defence may be unconstitutional.

Doctrine of mens rea - a person should not be punished unless that person knew that he was committing the prohibited act or would have known that he was committed the prohibited act.

A statutory rape case - absolute liability offence.

No mens rea is needed. No mistake of facts defence.

*Deterrence of itself is not a sufficient reason to justify the unconstitutional measure.

*This case reminds us the mens rea and because section 146 (repealed) gives

Question 32

The doctrine of Mens rea

Answer 32

a person should not be punished unless that person knew that he was committing the prohibited act or would have known that he was committed the prohibited act.

Question 33

Morrison case

Answer 33

Luring case.

S. 172.1(2), (3) and (4).

Morrison was communicating with a police officer, who pretended to be a 14 year old (not an entrapment). Morrison was charged with luring.

The chat was that the police officer stated in the chat that they were 14 year old. And that’s why the court determined that Morrison knew that he was communicating with a 14 year old.

S.172.1(3) provides that if the person with whom the accused was communicating (hereinafter referred to as “the other person”) was represented to the accused as being underage, then the accused is presumed to have believed that representation, absent evidence to the contrary. Mr. Morrison argued that this subsection violated his right to be presumed innocent unders. 11(d) of theCharter. (Repealed later)

The court deemed that S.172.1(3) was unconstitutional because this section ignored the presumption of innocence. This rule also allows the crown not to need to prove Morrison’s mens rea.

Question 34

Reasonable Steps

Answer 34

Did the accused take reasonable steps to verify the age of the victim in a statutory rape offence?

*This is an essential step to prove some one honestly mistake of fact.

Did the accused take reasonable steps to verify the facts before honestly mistaking a fact.

An example of reasonable steps could be asking age.

However, the crown still has to prove that the accused, beyond a reasonable doubt, truly mistaken the fact.

Recklessness is not a defence in mistaking age.

Question 35

Invitation of sexual touching (Section 152)

Answer 35

the mens rea for this offence: the touching must be someone who’s under age to give consent.

• Recklessness is sufficient for mistake of age.

Question 36

R. v. Landue

Answer 36

unsuccessful mistake of fact defence

• Landue claimed that he was so drunk that he honestly believed that the person was not dead but was only unconscious and had sex with her.
• Court found that the intention to commit a crime, although not the precise crime charged, will provide the necessary mens rea under statute.
• he could not rely on his mistake of fact to rebut the inference of mens rea in this case.

Question 37

R. v. Kundeus

Answer 37

Kundeus was trafficking with a restricted drug - LSD

• The accused had offered the officer mescaline; which turned out to be LSD but mescaline is not a restricted drug.
• Mistake of fact that the drug to be mesacaline but it turned out to be LSD.
• SCC looks at Blondin case that the mens rea can be interpreted widely.

As long as the accused knew that the drug was narcotic.

Question 38

Mistake of law

Answer 38

Section 19 Criminal Code.

Ex. I don’t think carrying drugs on the street is violating the law. It turns out it is. This is a mistake of law.

The mistake was a mistake of law (not fact); it was not held to be a defence.

The mistake of law defence is no defence.

However, a mistake of fact could be a valid defence. So a lot of lawyer may try to argue a mistake of law to be a mistake of fact.

Question 39

Section 19 Criminal code

Answer 39

mistake of the law cannot be an excuse.

Question 40

R. v. Prue

Answer 40

R. v. Prue

Facts: charged with driving while prohibited; claimed they did not know they were prohibited
Issue: is that a mistake of law or mistake of fact?
Crown argued for mistake of law; s. 19 would afford no defence
Court found it was a mistake of fact

The accused said “ I didn’t know I couldn’t drive”. v. I didn’t know I couldn’t drive while being drunk.

Is this a mistake of law or mistake of fact?

Question 41

R. v. MacDonald

Answer 41

Facts: Accused acquitted of s. 95 offence on basis he claimed “mistake of fact” related to where his firearms authorization would apply
Court of Appeal erred by treating the accused’s mistake of law as mistake of fact. Only mistake of fact can operate as a defence; ignorance of the law cannot

M has firearm licence in Alberta, but he was in Nova Scotia. He was charged with firearm (unauthorized possession.) He aruged his authorization to carry firearm extended to other states.

The crown only needs to prove that he possess the firearm because section 95 only requires to prove possession.

I didn’t know my authorization didn’t extend to Nova Scotia = this is a mistake of law.

Question 42

Colour of Right

Answer 42

Colour of right = an honest belief on the part of the accused that he had the right to possess the property in question. This does not include mere belief in a moral entitlement.

This can be a defence against theft.

Question 43

R. v. Drainville

Answer 43

The honest belief must be a legal right, not a moral right.

• That honest belief has to relate to a legal right.

Question 44

Officially induced errors

Answer 44

six elements to the rule:
1. The error was one of law or mixed law and fact.
2. The accused considered the legal
3. consequences of her actions.
4. The advice obtained came from an appropriate official.
5. The advice was reasonable in the circumstances.
6. The advice obtained must be erroneous.

(Don’t need to memorize)

Advice from boss and committed a crime.

Levis v. Tetrault

A stay is not a acquittal

Question 45

the age of criminal responsibility was raised from 7 to_____ (Incapacity class)

Answer 45

12

Question 46

S13 of criminal code

Answer 46

a person under 12 can’t be convicted of an offence

Question 47

S.23.1 of Criminal Code

Answer 47

A person can be convicted as a party, or accessory after the fact to an offence committed by someone under 12.

Question 48

How is age measured?

Answer 48

Age is measured in chronological age rather than in terms of intellectual capacity.

A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary of the same number of the day of that person’s birth (in other words, 12 am on the date of their birth.)

Question 49

Mental Disorder (Formerly expressed as insanity)

Answer 49

Section 16 of CC: Sets out a comprehensive legal regime to deal with accused who suffer from a mental disorder at the time the criminal act is committed.

Question 50

The accused must not be physically present, but must be _______________________.

Answer 50

Mentally present as well (Fit to stand trial)

An inquiry into the accused state of mind at the time of the alleged act, not at the time of trial is what we are going to focus on.

Question 51

NCR-MD stands for

Answer 51

Not criminal responsible because of mental disorder.

• Such a verdict had been called an acquittal on account of insanity.
• Mental disorder means disease of the mind.

Question 52

U.S. v. Freeman (1966)

Question 53

M’Naghten rule (Will for sure be on the exam)

Answer 53

Everyman is presumed to be sane, and insanity was a defense to criminal charges only if:

“at the time of the committing of the act, the accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, he did not know he was doing what was wrong.”

Question 54

The aim of M’Naghten Rule

Answer 54

The aim of the M’Naghten rule was to limit the insanity defence to cognitive insanity, a basic inability to distinguish right from wrong.

A defendant is legally insane if they cannot distinguish between right an wrong in regard to the crime with which they are charged. If the judge or the jury finds that the accused could not tell the difference, then there could not be criminal intent.

Question 55

The disease of the mind is a concept of _________

Answer 55

Legal. Although it includes a medical component, what is meant by that term is.

It is up to the judge to decide. However, a psychiatrist may be called on as an expert.

It is for the judge to decide whether the condition described is comprehended by the term disease of the mind.

Question 56

Disease of mind

Answer 56

disease of the mind embraces any illness, disordered or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.

Question 57

In order to support a defence of mental disorder, the disease must be of such intensity as to render the accused______________________________

Answer 57

1. Incapable of appreciating the nature and quality of the act; or
2. of knowing that it is wrong

Question 58

Judges do not judge people but judge the action of the people.

Answer 58

True

Question 59

A person is incapable of appreciating the nature and quality of an act when___________________-

Answer 59

when he does not have the capacity to understand the character and consequences of what he has done.

But just because a person does not have the appropriate feelings of remorse or guilt for having done something that causes harm to another person, that is not enough to conclude they are incapable of appreciating the nature and quality of the act.

Question 60

Kjeldsen v. R. 1981

Answer 60

Issue surrounded the meaning of the word “appreciate”

It does not extend to one who has the necessary understanding of the nature, character and consequences, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done even though such lack of feeling stems from disease of the mind.

Question 61

What does wrong mean in insanity?

Answer 61

Morally wrong and not legally wrong (Chulk)

Question 62

R v Campione 2015

Answer 62

The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived - by reason of a mental disorder - by reason of a mental disorder - of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people.

Even if the act was motivated by the delusion, the appellant will be convicted if she was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

Question 63

The defence of NCR-MD is not open to a person who knows

Answer 63

that their conduct is wrong in the eyes of society’s view on right and wrong and instead follows her own personal, deviant code of right and wrong. Such as person does not lack the capacity to know that her actions are wrong.

Question 64

The burden of proving the person suffered from a mental disorder is on a

Answer 64

balance of probabilities.

Question 65

Whoever raised the issues of the NCR-MD has the burden

Answer 65

yes

Question 66

The crown must always prove BRD the accused is guilty of the offence charged before NCR-MD is considered.

Answer 66

True