Offences and Defences

Question 1

R. v. Sundman, 2022 SCC 31

Answer 1

Unlawful Confinement and First-Degree Murder

• Section 231(5) will apply where the following elements are established:
1. an underlying crime of domination;
2. murder;
3. substantial cause;
4. no intervening act; and
5. the same transaction e.g., the two criminal acts (underlying crime and the murder) must form part of the same transaction. [paras. 29-30]

• The victim remained unlawfully confined when he was murdered – unlawful confinement can be physical or psychological (fear, violence, or intimidation).

• The two approaches to the “same transaction” element in the jurisprudence – the “single transaction test” and the “temporal-causal connection approach” – are interchangeable means of answering the same question: whether the accused killed the victim “while committing” an enumerated offence. [paras. 35-39]

Question 2

R. v. J.J. 2022 SCC 28

Answer 2

278.92 does not breach ss. 7, 11(c), 11(d),

Stage 1:

276
-not 276? - terminate
-not capable of being admissible (twin myth) - terminate

278
-not 278.1 record? - terminate
-not capable of admissibility? - terminate

Stage 2

276

The governing conditions are set out in s. 276(2), as directed by s. 278.92(2)(a) and in accordance with the factors listed in s. 276(3).

278

For private record applications, the test for admissibility is
-whether the evidence is relevant to an issue at trial and
+has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

This determination is made in accordance with the factors listed in s. 278.92(3). Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if they so choose.

Question 3

R. v. G.F., 2021 SCC

Answer 3

If no capacity -> no consent

• If incapable of consenting -> no finding of voluntary consent.
• Can both be incapable of consenting and not consenting simultaneously.
• Aspects of consent
o Subjective consent (in fact) – requires capacity.
o Effective consent (in law)

Question 4

R. v. Hutchinson, 2014 SCC 19

Answer 4

Fraud =/= no consent

1. Did the complainant consented to engage in the “sexual activity in question” under s. 273.1(1), which is defined by reference to the specific physical sex act involved?
2. If the complainant consented, or her conduct raises a reasonable doubt about her consent, the second step is to consider whether there are any circumstances under s. 265(3) or s. 273.1(2)(c), including fraud, that vitiate her apparent consent?

Question 5

R. v. Kirkpatrick, 2022 SCC 33

Answer 5

– Consent to sex w/condom =/= consent to sex w/o condom

Question 6

R. v. Brown & Sullivan & 33.1

Answer 6

s. 33.1 violates ss. 7 & 11(d)

AUTOMITISM DRINKING

NEW s. 33.1: Accused persons who rely on the defence of extreme intoxication can still be convicted of VIOLENT offences if their consumption of intoxicants was a marked departure from the standard of care expected of a reasonably prudent person.

Intoxication SHORT OF AUTOMITISM is never a defence to violent, general intent crimes.

Automatism intoxication is POSSIBLE defence to specific intent crimes (e.g. fraud)