FINAL EXAM- CASE BRIEFS

Question 1

R. v. Mailhot

Answer 1

MISTAKE OF FACT
F: Asked the UCO twice if he “wanted to see him”. Believed the UCO was participating in the act, in which case, not done in the “presence of persons other than those engaged in the act”.
I: Should the defence of mistake of fact be allowed?
H: Defence allowed (No MR, no intention to engage in criminal act)
R: Defence should be allowed if the accused is honestly mistaken, as to the material element of the AR (even if the belief is unreasonable).

Question 2

R. v. Sansregret

Answer 2

MISTAKE OF FACT AND CONSENT
F: Ex-boyfriend breaks in, sexually assaults his ex. She reports the incident to the police but charges are not laid. He repeats. She makes a second complaint. Ex-boyfriend argues he was under the mistaken belief of consent.
I: Should the mistake of fact defence be allowed?
H: Defence not allowed
R: Mistaken belief to consent should not be allowed where accused deliberately blinds himself to facts, or is reckless to the consequences of actions.

Question 3

McSorley & Bertuzzi

Answer 3

CONSENT
Facts of both cases:
McSorley deliberately hit another player with a hockey stick.
Bertuzzi punched another player from behind, unprovoked.
I: Do these actions fall within the implied consent for physical contact of sports?
H: Actions fell outside the spectrum of implied consent
R: The principle of implied consent does not apply where the person goes beyond the boundaries of the normal and reasonable expectations of fair play.

Question 4

Forster v. R.

Answer 4

MISTAKE OF LAW
F: Failure to report to duty under the National Defence Act. Accused thought she had resigned from her post, but she had not followed the correct procedure.
I: Should the mistake of law defence be allowed?
H: Defence not applicable
R: An honest but mistaken belief in respect of the legal consequences of one’s deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused.

Question 5

R. v. Molis

Answer 5

MISTAKE OF LAW
F: M was working in a laboratory which manufactured MDMA. It was later declared that MDMA became a restricted drug and it was published in the Canada Gazette; however, M was unaware of this. Was charged with the trafficking and of MDMA.
I: Should mistake of law be allowed as a defence?
H: Appeals dismissed, defence not allowed
R: No difference between ignorance of the existence of law and that as to its meaning, scope or application (in relation to section 19)

Question 6

R. v. Jorgensen

Answer 6

MISTAKE OF LAW
F: Charged with selling obscene videos (s.163(2)) after an UCO bought some of the videos. All videos had been approved by the Ontario Film Review Board.
I: Should the mistake of law defence be allowed?
H: Stay of proceedings
R: Officially induced error functions as an excuse rather than a full dance (leads to stay of proceedings rather than an acquittal)– must show reliance on error. There was no proof of knowingly selling obscenity, therefore it was an officially induced error.

Question 7

R. v. Bedard

Answer 7

LEGAL TEST FOR MISTAKE OF LAW

1. an error of law or of mixed law and fact was made
2. the person who committed the act considered the legal consequences of their actions
3. the advice obtained came from an appropriate official
4. the advice was reasonable
5. the advice was erroneous
6. the person relied on the advice in committing the act

Question 8

R. v. Watson

Answer 8

MISTAKE OF LAW
F: Charged with two counts of mischief causing actual danger to life and one count of mischief. Tried to prevent a Cuban trawler from fishing what he believed were cods. Honestly believed he was acting in the light of the provision World Charter for Nature.
I: Would the defence of mistake of law apply?
H: ‘Colour of right’ defence was available for the accused.
R: There can be ‘colour of right’ where an accused honestly, but incorrectly believes that he had a legal right to do something (intervene in fishing) that would otherwise be a crime because he was specifically legally authorized in the particular circumstances facing him.

Question 9

R. v. Parent

Answer 9

PROVOCATION
F: Nasty divorce proceedings result in estranged wife’s murder after she had made a remark that caused him to feel ‘a hot flush rising’. Accused shot wife six times with a loaded gun he was carrying in his pocket. He claimed that he didn’t intend to kill his wife but “because of his anger he didn’t know what he was doing anymore”.
I: Is the defence of provocation available to the accused?
H: Rejected the accused proposition, defence not available
R: Anger may “play a role in reducing murder to manslaughter in connection with the defence of provocation”, but it cannot be advanced as a “stand-alone defence”.

Question 10

R. v. Thibert

Answer 10

PROVOCATION
F: Wife leaves husband twice, for the same other man. Accused confronts new couple, alleges that the boyfriend “taunted” him, which led him to lose control.
I: Is the defence of provocation available to the accused?
H: Not enough for the defence to be raised
R: The objective component of the defence must be raised first, if the objective comment cannot be raised then the defence is not permitted. Can be raised to indicate what kind of background information can be raised in explaining whether a reasonable person would react in a certain way.
-NO LONGER APPLICABLE DUE TO THE REMOVE ON “INSULT”

Question 11

R. v. Tran

Answer 11

PROVOCATION
F: T had been separated from his estranged wife. However, he illegally entered her locked apartment and found her in bed with her boyfriend. Attacked former spouse and partner, killing the partner.
I: Should the defence of provocation be available to the accused? Does the “ordinary person” include someone who may hold extreme cultural beliefs about women’s conduct and roles in society?
H: Defence not allowed
R: No air of reality in the defence. Cultural beliefs about violence as appropriate responses to women’s immoral conduct are irrelevant, do not function to tolerate violent responses.
- On the sudden cannot be initiated by the accused

Question 12

R. v. Mayuran

Answer 12

PROVOCATION
F: Accused charged with the murder of sister-in-law. Felt the victim had ridiculed her about her learning disability and level of education.
I: Should the defence of provocation be allowed?
H: No air of reality to the defence, therefore should not be considered by the jury/trier of fact.
R: Accused must have sufficient evidence to raise a reasonable doubt on both subjective and objective elements of the defence.

Question 13

R. v. Pappas

Answer 13

PROVOCATION
F: Accused alleges that he shot and killed the victim because the victim has been extorting money from him for 18 months. Victim had threatened to provide information to Canada Revenue Agency concerning off-shore accounts and threatened to harm accused’s mother. Accused went to victim’s home because he had “had enough” and wanted to try to get victim to agree to stop the blackmail. He brought the loaded handgun for intimidation but did not immediately take the gun out. Victim refused to stop, indicating that with his “insurance” of the accused’s mother, he would never stop. Accused alleges he snapped, pulled his gun and shot the victim in the back of the head.
I: Should the provocation defence be put to the jury?
H: Defence not allowed
R: There was no air of reality to the defence of provocation. The accused was not caught unsurprised and unprepared by victim’s threats as the accused had bought a weapon indicating that he had contemplated the possibility that the victim would not agree to stop extorting.

Question 14

R. v. Daviault

Answer 14

INTOXICATION
F: D was charged with sexual assault of a 65 y/o woman who was partially paralyzed and confined to a wheelchair. He asserted he had no recollection whatsoever of the events that constituted the alleged assaults.
I: Should the defence of intoxication be available to the accused?
H: Acquitted of charges
R: Intoxication may be a complete defence where it induces a state “akin to automatism”.
- Resulted in the enactment of s.33.1

Question 15

R. v. Daley

Answer 15

INTOXICATION
R: Specific intent offences required the mind to focus on an objective further to the immediate one at hand, while general intent offences require only a conscious doing of a prohibited act.
- Created 3 levels of intoxication
1. Mild: no defence
2. Advanced: Partial defence (except in cases covered by s.33.1)
3. Extreme: akin to automatism, full defence resulting in acquittal if it is a general intent offence (except in cases covered by s.33.1)

Question 16

R. v. Bouchard-LeBrun

Answer 16

INTOXICATION

s. 33.1 bars the partial defence of intoxication where:
1. Accused was intoxicated
2. Intoxication was self-induced
3. Offence is a general intent offence related to the interference of the bodily integrity of another

Question 17

R. v. Morgentaler

Answer 17

NECESSITY
F: Accused claimed he was performing an abortion, against the existing abortion provisions at the time, out of necessity. M feared that the pregnant woman would “do something foolish”.
I: Availability of the Defence of Necessity?
H: On the first case he was charged, on the second case the defence was allowed (first time it was raised successfully in Canada).
R: Clear and imminent peril must be established to successfully raise the defence. The first time there was not sufficient evidence to prove this.

Question 18

R. v. Perka

Answer 18

NECESSITY
F: Drug running to Alaska, mechanical trouble at sea, enter Canadian waters and unload drugs to prevent ship from capsizing. Claimed no intention to traffic drugs into Canada.
I: Availability of the defence of necessity
H: Defence not allowed
R: Defence of necessity is meant to address normative involuntariness. If voluntarily engaging in criminal conduct, not applicable.

Question 19

R. v. Carson

Answer 19

NECESSITY
F: Both police officers. Took victim to bedroom after an altercation and smothered her to keep her from continuing to bang her head against the wall (tried to prevent her from continuing to hurt herself). Charged with assault.
I: Availability of the defence of necessity
H: Defence not allowed
R: There were legal alternatives available, decided that the legal test will be considered as a modified objective test.
- How would a reasonable person, with the knowledge of and in the circumstances of the accused, view the situation?

Question 20

R. v. Latimer

Answer 20

NECESSITY
F: Murdered daughter who was suffering from cerebral palsy and was quadriplegic, so severe she was bedridden and experienced a considerable degree of pain everyday.
I: Availability of the defence of necessity
H: Defence not allowed
R: Not available when the accused decided to take on a voluntarily course of conduct. Involuntary conduct is the heart of the defence. It does not matter whether the accused subjectively felt that there were no options.
- Modified objective test

Question 21

R. v. Kerr

Answer 21

NECESSITY
F: K, prison inmate, was threatened by fellow gang member. Fight broke out resulting in stabbing from both parties, wounds inflicted on the victim resulted in his death. Accused argued that he was carrying the concealed and illegal weapon for a defensive purpose, not a purpose dangerous to public peace.
I: Availability of the defence of necessity
H: Defence allowed
R: Accused was carrying a weapon and used it as a way of defending himself from the attack. No other legal alternative, attack was inescapable.
- Acknowledgement that the prison system is not really safe

Question 22

R. v. Ruzic

Answer 22

DURESS
F: R was charged with trafficking heroin into Canada. Had faced violent attacks and threats to her mother’s safety. At that time, her home country lacked stability and there was a lot of corruption and organized crime to which the accused argued that the authorities there could not help.
I: Availability of the defence of duress
H: Defence allowed (acquitted of charges)
R: Trial judge found that she was not entitled to s. 17 defence due to the immediacy and presence requirements no being met; however, declared that provision violated s.7 of the Charter, she could rely on the common law defence.

Question 23

R. v. Ryan

Answer 23

DURESS
F: R had been victim of a violent and abusive husband. R believed he would cause her and their daughter serious bodily harm, or death as he had threatened. R was in continuous danger from her husband, tried to contact a hit man so that the husband would be killed. The hit man was an UCO, R was arrested and charged with counselling the commission of an offence not committed. Expert witness testified R was a victim of “battered woman syndrome”, saw no way out of the situation.
I: Availability of the defence of duress
H: Defence was not available due to the facts of the case; however, a stay of proceedings was entered
R: Duress is only applicable in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm. Defence cannot be extended to apply when the accused meets force with force, or the threat of force with force in situation where self-defence is unavailable.

Question 24

R. v. Li

Answer 24

DURESS
F: L participated in gang activity due to threats in family in China as the gang had smuggled him into Canada and he owed money to them. Hostage holding over the course of 22 days, where they were free to come and go as they pleased
I: Availability of the defence of duress
H: Defence not allowed
R: No availability of the defence as there was a safe avenue of escape (could have contacted authorities in Canada but did not) and the accused had voluntarily assumed the risk of associating with the Snakeheads through the smuggling operation.

Question 25

R. v. Scarrow

Answer 25

DURESS
F: Accused arrested with drugs and cash in car. Alleges she was forced to work as a ‘drug mule’ by a well-known HA member. Refused to go to the police encase she was an escort and knew the violent history of the gang member.
I: Availability of the defence of duress
H: New trial ordered
R: A safe avenue of escape must consider the same personal characteristics and experiences the accused as these may alter whether one would go to the police with a threat.

Question 26

R. v. Lavallee

Answer 26

SELF-DEFENCE
F: Woman shot husband in the back as he left the room. Accused indicated that the “victim” was her abuser and he told her that either she should kill him, or he would kill her. Accused then argued that the reasonableness requirement did not allow for the situation of people who have been subject to abuse.
I: Availability of self-defence
H: Defence allowed (acquitted of charges)
R: In context of domestic violence, evidence of how victims of abuse may perceive their “alternative courses of action” can be used to show the reasonableness of their decisions.

Question 27

Vaillancourt v. R.

Answer 27

SELF-DEFENCE
F: Accused (victim of 30 years of physical, psychological and sexual violence at the hands of her husband) shoots her husband while he was sleeping.
I: Availability of self-defence
H: Defence allowed
R: Accused did not have all of the symptoms of someone suffering from “battered women syndrome”. However, Court affirmed there is no battered women syndrome defence; evidence of abuse can be used to explain reasonableness, but it is not necessary to bring evidence that the accused suffered from a particular syndrome (if so, would be more likely to be successful under NCRMD).

Question 28

Berrigan v. R.

Answer 28

SELF-DEFENCE
F: Accused stabs victim under the belief that victim was reaching for a gun (in reality he was getting his cellphone).
I: Availability of self-defence (issue of proportionality in terms of weapons)
H: New trial ordered
R: Regardless of the absence of a weapon, or an actual assault, look to the accused’s belief of necessity in acting in self-defence.
- Recognition that an action that might have seemed reasonable at the time may appear differently in hindsight or with new facts.

Question 29

Docherty

Answer 29

SELF-DEFENCE
F: Accused killed a loan shark who had made serious threats of violence against him.
I: Availability of self-defence
H: New trial ordered on charge of manslaughter.
R: Where the assault takes place in your home, you are not required to flee your home to get away from your attacker. You can use the degree of force necessary to expel somebody from your house (reasonableness and other factors– proportionality, imminence, etc.) still relevant.

Question 30

R. v. Gunning

Answer 30

DEFENCE OF PROPERTY
F: Accused hosted a party to which the victim attended uninvited. G asked victim to leave, victim refused and assaulted G. G picks up gun, in order to intimidate victim, gun accidentally discharges and the victim is killed.
I: Availability of defence of property
H: New trial ordered
R: Must look to the subjective intention of the accused. If accused acts for a defensive purpose in a manner deemed reasonable in the circumstances, defence is available and should be considered by the trier of fact.

Question 31

R. v. G(R)

Answer 31

MISTAKE OF LAW
F: Divorced couple, ex-husband charged with sexual assault after drunken incident where ex-wife consents only to prevent violence to self and children.
I: Is the defence of mistake of law defence allowed?
H: Defence not allowed
R: The fact that the victim didn’t say no is irrelevant, must ensure that unequivocal consent is obtained.

Question 32

R. v. Malcolm

Answer 32

MISTAKE OF FACT
- Determined that the application of s.273.2(b) required a modified objective test
1. Ascertain circumstances
2. Would a reasonable person, in the circumstances, take further steps to determine consent before engaging in sexual activity?
YES: defence in not open to the accused
NO: accused was acting reasonably in ascertaining consent, the defence may be open