midterm 1

Question 1

Hearsay rule:

Answer 1

two defining features: an out of court statement introduced to prove the truth of its contents, and secondly the absence of a contemporaneous opportunity to examine the declarant.

Bassically, if a witness is saying that someone said something, you have to be able to examine the person that said it.

Question 2

Common Law Confessions Rule:

Answer 2

Exception to the common law confession rule. The confession must be made to someone the accused did not beleive was in a opsition of authority.
A confession cannot be: Coerced/made in a quid pro qou situation, elicited by oppressive circumstance, must be made by an operating mind.

Question 3

Relevant Charter rights:

Answer 3

Life, liberty and security of person
7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Search or seizure
8 Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9 Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters
11 Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Treatment or punishment
12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13 A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Question 4

Generations of 24(2) remedies:

Answer 4

Gen 1.
Collins
1. Fairness of trial
2. How badly did the coppers do? Were they just people being dumb, or were they cops being cops (the second is far worse)
3. Would administration of justice be brought into disrepute.

Gen2.
R v. Mellenthin Explains what impacts fairness, if you can explain how it affected fairness it becomes very important. Fairness of trial became the #1 concern here.

Gen 3.
Current, from grant, see tests section.

Question 5

S. 10B right to counsel test:

Answer 5

1. Informational – accused must be informed promptly upon arrest or detention:
   a. right to counsel
   b. availability of counsel through Legal Aid and the means of access
   c. availability of immediate, temporary legal advice through Brydges duty counsel
   d. the means of access to free preliminary legal advice (ex. 1-800 number)
2. This right is reengaged whenever there is a significant change in jeopardy, or a new procedure involving the detainee (such as being asked to take an officer to where a gun is) are engaged. (Sinclair)
   • If they choose not to speak to a lawyer, the officer has to read out a Prosper warning, explaining what they’re about to give up
   • Major exception: the administration of roadside tests à you do not have a right to counsel for these (Thompson)
   o The point of these tests is to be quick, and if there was a right to counsel every time it would get very long
   o During a check stop test though, once you fail a breathalyzer test and are detained à trigger s. 10(b) rights
   • Major exception: when you’re coming from another country

Question 6

Test for detention (Grant):

Answer 6

Would a reasonable person, while in the position of the accused, conclude that the police have removed their right to choose how to act?

a) May take into consideration the complexity of the person.
b) May take into consideration a relative power imbalance.
c) If the police do not explicitly say a person is detained, but a person would conclude they are, they have been psychologically detained.

Question 7

Test for whether a search was reasonable1

Answer 7

1. must be conducted under a reasonable law, search with a warrant is presumed to be reasonable.
2. must be conducted by reasonable means, should not unreasonably violate a person, or privacy (collins)
3. the police can search abandoned propert (patrick)
4. If electronic, must have it’s own warrent (vu) or, if it occurs incidental to arrest must follow the rules in (fearon) - they must search minimally, and record the search in detail.

Question 8

Test for abandonment for privacy

Answer 8

1. What was the nature of and subject matter of the evidence? (
2. Did the appellant have a direct interest in its contents?
3. Did the appellant have the subjective expectation of privacy in the content of the garbage?
4. If so, was the expectation objectively reasonable?

Question 9

Test for exclusion 24(2)

Answer 9

1. the seriousness of the charter infringing conduct. (often takes into account whether or not officers acting in good faith [grant/cole])
2. the impact on the charter protected interest of the accused, (how seriously did the violation fuck with you)
3. whether the administration of justice would be brought to disrepute.

Question 10

CTM Burden

Answer 10

The burden of a party to ‘get past a judge’. Can apply in a vior dire. Essentially, it represents the burden to show some amount of probative proof before a case is put before a jury. The burden generally rests on the same party that bears teh legal burden on an issue (usually the crown, but an exception for charter breaches and remedies exists). It is examined at the conclusion of a parties case, so if the crown concludes and defense doesn’t thin the crown has met ctm, they can apply for acquital based on failure to discharge ctm burden. The standard is whether there is some evidence that a properly instructed jury COULD find the fact in issue was established.

Question 11

BARD

Answer 11

Beyond a reasonable doubt, it can be a bit nebulous to explain, but it’s very important the trier of law gets it right when doing so. The crown is the only party to ever bear a BARD burden.

Question 12

BARD elements of an offense:

Answer 12

The crown must prove BARD: 
Jurisdiction
Identity of the accused as the perp.
Actus reus
Mens rea

Question 13

Tactical Burden:

Answer 13

Not a feature of the law, but instead a description of the burdens assumed by legal parties when they choose their strategy for engaging with the case. For example, an accused may choose not to induce evidence (and thereby avoid BOP), or they may have to accept the burden of BOP to prove something like a charter breach. Often a burden in relation to evidence brought up by opposing party, ie, crown may wish to show accused was intoxicated or angry in an assualt case, defense may wish to show he was scared.

Question 14

Woolmington

Answer 14

The golden thread case, charged with murdering his wife, judge explained to the jury that woolmington should be presumed guilty unless they believe the shooting was an accident. HOL decided this was bad, ratio: you cannot presume a accused guilty in any way before their is proof beyond a reasonable doubt, this is the golden thread.

Question 15

Lychfuss

Answer 15

Sets the lychfuss standards for a jury charge. stockbroker case.

Charge should:
a real doubt not imaginary or fanciful, a doubt based on evidence, a reasonable possibility that the issue is not as the party bearing the burden claims.

Question 16

R v. WD

Answer 16

sex assualt case,
. A judge cannot instruct the jury to find guilt or innocence based on whether they believe the accused or the victim, instead, the charge should be phrased: 1) if you believe the evidence of theaccused you must acquit. 2) if you do not believe but are left with reasonable doubt you must aqcuit. 3. If you are not left in doubt, you must ask yourself if, on the basis of evidence you do believe if you are convinced BARD.

Question 17

r. v layton

Answer 17

complainant drinking, awoke to accused having sex with her. When jury asked for clarification on BARD the judeg repeated the instructions. You cannot do this thing.

Question 18

No basic fact:

Answer 18

things that are considered to be true without any facts needing to be introduced or proved, IE the accused is prusumptively innocent until proven otherwise, the accused is presumptively sane unless they prove on BOP they are not.

Question 19

Basic fact:

Answer 19

A thing that can be assumed to be true, if there is a proven basic fact tied to it. Usually statutory and explained in the crim code charge itself. IE a person sitting in a drivers seat can be said to be operating the vehicle.

Question 20

Permissive presumtption

Answer 20

Things that the jury MAY be allowed to assume based on a proved fact. IE if found in a convenience store at midnight after a house was robbed at 10pm, jury MAY assume breaking and entering in addition to stolen property if accused has a stolen thing.
Inferring that someone intended the natrual consequence of actions falls here.

Question 21

Mandatory:

Answer 21

Things the jury MUST assume if found to be true (generally they limit s 11.d rights, presumption of innocence, bc they remove burdeen from crown to prove somethings. Mostly statutory.

Question 22

Conclusive/rebutable

Answer 22

Presumptions will either be conclusive, and the accused cannot rebut them, or vise versa. Conclusive are rare.

Question 23

Actus Reus:

Answer 23

The guilty act. It must be voluntary, it must overlap at least temporally with the mens rea, can be an act, or an omission. Only can be an omission where the guilty party had a positive legal duty to act, Ie providing necessities fo life to a child.
There must be a causal connection between the act and the harm. (see tests later)
The act must be voluntary, not a reflex (R. v. Wolfe), sleepwalking, automatism, some forms of extreme intoxication, heart attack or seizure causing a turn into traffic all may negate the actus reus.

Question 24

Physiological involuntariness:

Answer 24

When a physical condition, such as a heart attack or autonomism remove the element of voluntariness from the actus reus.

Question 25

Moral inovluntarinesss

Answer 25

When you can physically control your acts, but some other overriding factor applies, like a gun to the head, (still actus reus but ooens defense of duress. Not yet covered)

Question 26

Thin skull rule:

Answer 26

Thin skull rule:
You take your victim as you find them. You punch someone with a thin skull and they die, that’s your fucking problem now.

Question 27

The De Minimus principle

Answer 27

: o 1) The law does not concern itself with matters of a merely “trifling” or trivial nature
o 2) The threshold of contribution required for guilt in causation cases
-“What exactly did the accused do to contribute to the end result?”

Question 28

Test for causation (smithers/Nette test)

Answer 28

1): factual causation:
“an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result”
“But for” the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope.
The unrational intervening acts of the victim will not mitigate this, it is a thin skull issue. If I deform someone and they kill themselves, I did a manslaughter. If I stab a jehova’s witness and they have a no blood plss card, and they could have been saved, I still did a murder.
The vulnerability of a victim to the harm also does not mitigate this (smithers, malfunctionin epiglottus)
2) legal causation:
whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished
If its a significant contributing cause they are liable.
In maybin the bouncer was acquitted b/c there is no evidence victim wasn’t aalready dead.

Question 29

Legal Causation with an intervening act (Maybin):

Answer 29

Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?
Was there reasonable foreseeability that the consequence of the action would occur (in this case the intervention of a bouncer or onlooker causing further harm)
“[a]n event [that is] reasonably foreseeable as part of a generic risk, even though it is improbable in its details” (G. Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 389).
Whether the intervening act is an independent act that severs the impact of the accused’s actions, making the intervening act, in law, the sole cause of the victims death.
“”… if at the time of death, the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound”(pp. 42-43)” Smith

Question 30

R. v. Dunlop:

Answer 30

: simply watching an offense occur without intervening is not an offense (watching a gang rape)

Question 31

R. V. Moore:

Answer 31

: If an officer watches you commit an offence, you have a duty to provide name and address
v

Question 32

R v. Daviault:

Answer 32

self intoxication to the point of autonmism rebuts the defense of intoxication to the voluntariness element of the actus reus, even for general intent offences. Statute amended to say self induced intoxication is nto a defence for assault.

Question 33

R v. Wolfe:

Answer 33

an assualt that is a reflex, such as responding to getting hit by hitting back, is not voluntary and therefore cannot make up the actus reus.

Question 34

SS. 224, 225, 226, and 228 à statutory causations rules related to death

Answer 34

224 o E.g. Person gets stabbed, but a young doctor fails to save life à the doctor’s actions aren’t going to absolve criminal liability • S. 225 o E.g. People are trying to save person’s life and they in good faith end up causing the death à it is still on the dangerous act of the original actor • S. 226 o Acceleration of death o If you hurt someone who is already sick and dying but you cause the acceleration of their death à you are liable • S. 228 o Influence of the mind o No person commits homicide by any influence on mind alone, or any disorder or disease resulting from mind alone; doesn’t apply to frightening child or sick person o However, if you frighten someone to death à you are guilty of their dea

Question 35

Mens Rea:

3 standards of mens rea

Answer 35

1)true knowledge: The person knew what he was doing was “without consent” or they “knew they were carrying drugs”
Gold standard of mens rae
2) Willfull blindness (one small step down from true knowledge.
Applies as a substitute for true knowledge
Applies when a person realizes, or should have realized that they ought to make an inquiry, and they choose not to to preserve themselves from knowing they’re committing a crime.
3) Recklessness:
Applies to some criminal offenses but not others. Does not apply to true knowledge offences.
Applies where an accused realizes that tehre is a risk of a prohibited consequence and they proceed anyway.

Question 36

Specific vs. General intent offenses:

Answer 36

1. Determine teh appropriate mental element, subjective or objective fault, presumption that it is subective. (factors from daviaSpecific intent? You have to do the thing with an ulterior purpose. Assault with the intent to resist arrest is a specific intent, because you have to have had the complex thought that hitting the officer ight acheive the desireult)
   a) General intent? You just goota wanna hit someone to generally intend assault. Sexual assualt? You just gotta generally intend to do whatever shitty thing you decided to do with your genitals, you have to have wanted to do the genital thing, not specifcally having wanted to only do it if its an assualt.
   b) Specific intent? You have to do the thing with an ulterior purpose. Assault with the intent to resist arrest is a specific intent, because you have to have had the complex thought that hitting the officer ight acheive the desire
2. Look at existing jurisprudence: if not there look to other jurisdictions. How important is the mental element to the crime? General intent-> intenttion to perform the legal intent, Specific -> musst acct tiwht ulterior purpose.
3. if that doesnt help, turn to policy

Question 37

Test for mens rea where actus reus is a foreseeable consequence of a nother act.

Answer 37

1. If the intent was to create the consequence.

OR 2. If they foresaw the consequence and moved forwards anyway

Question 38

R v. Bernard:

Answer 38

: (intoxicaated accused assualts victim causing bodily harm) Sexual assualt is a deneral intent offence, an intoxicated person who commits it can not use intoxication as a defence for the mens rea

Question 39

R v. Sandhu:

Answer 39

where an offense requires knowledge on the part of the accused, it is incorrect to instruct a jury that recklessnes is alegitimate standard, must use wilful blindness or true knowledge.

Question 40

R v. Vikokurov

Answer 40

(stolen watches pawnshop) where an offense is listed as wilfully or intentionally in statue recklessness applies, where it says knowingly, only willful blindness or true knowledge will apply.

Question 41

R v. Buzzange and Durocher:

Answer 41

(french cads with anti french cad posters) where the willful promotion of hatred is at issue, the standar of recklessness is slightly higher, willfully does not mean accidentally. the accused must forsee that the prohibited consequence was certain, substantially certain or morally certain to occur.

Question 42

R v. Mathe:

Answer 42

If the evidence raises a reasonable doubt about the intent to actually commit the offense (mathe said he was joking when he held up a bank and was given money, left the bank), mens rea is not made out. ACQUIT.

Question 43

R. V. Lewis (

Answer 43

s (mail nomb bc he didn’t like daughters husbando) a lack of motive doesn’t automatically mean a lack of intent. The crown shouldn’t be faulted for not proving a motive, its uhder judge discretion whether ort not to include motive in the jury charge.