• R. v. Titchner (1961

Reference to http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_criminalnegligence_en.asp#_Toc347838421

Criminal Law Outline – FINAL- Trotter

Presumption of Innocence

1. Burden of Proof

-             Who has to prove something? Who is the onus on? (Crown or Defense) ~ almost always on the Crown

2. Standard of Proof

-             Quantity? How much? To what standard do you have to prove something?

v     Air of Reality ~ something in evidence with give some credence to a particular credence (defense)

v     Beyond a Reasonable Doubt (BRD) ~ essential standard in criminal justice system

v     Balance of Probabilities (in btwn AR  & BRD) ~ more probable than not ~ much lower standard than BRD

v     Reasonable Doubt ~ all the accused person needs to prove

Woolmington v. D.P.P. (1935) ~ Woolmington principle of presumption of innocence

W. shoots his wife, confesses to the police, his defence is that it was an accident.  Judge

instructing jury places the onus on the defendant to prove all aspects of the accident, necessity or infirmity, by saying that once Crown proves voluntary act that killed wife then can presume murder – burden then shifts to accused to prove on the balance of probabilities that it was an accident with no malice which would lower the charge to manslaughter.

Issue:  Is it correct law to have an onus of proof on the B of P on the defendant?  (No.)

Ratio:  The presumption of innocence means that the onus of proof BRD is on the Crown, for all required elements of the crime. The Crown must prove the CAUSATION OF DEATH + INTENT TO KILL, the accused must only raise a reasonable doubt to be acquitted.

            Obiter – didn’t invoke s. 4 proviso that says that if you think the result would have been the same despite the legal error ~ don’t order a new trial ~ in this case they ordered a new trial

            **strengthened presumption of innocence principle (Woolmington Principle); Golden Thread of Criminal Law

R v. W.(D). (1991) ~ BRD standard

Accused convicted of sexual assault; judge charged jury with instructions that characterized the core issue as whether they believed the complainant or the defendant; made it an issue of credibility

Issue:   Was this charge incorrect? (YES)

Ratio:   Although credibility matters, when it comes to decision time there must be more to it than that – reasonable doubt must be the standard

1)     if you believe the evidence of the accused you must acquit

2)     if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit

3)     even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused

R. v. Osolin (1993) ~ defense has to have an air of reality (AR)

Accused charged with sexual assault; in defense said that victim was eager although not active participant; judge said that defense had no air of reality

Ratio:   Defense must have an air of reality before it can be put forward> an evidentiary burden which is constantly shifting.

-        Two step test for decided if evidence presented is sufficient to go to the jury:

1.      judge will review the evidence and decide if it is sufficient to warrant putting the defence to the jury

2.      if the evidence meets the threshold, evidence goes to the jury and they must decide if the evidence raises a reasonable doubt

R v. Lifchus (1997) ~ jury charge for BRD

Accused charged with fraud; judge charged jury with definition of BRD as meaning their ordinary, every day meaning; this is wrong

Ratio:   words have specific meaning in the legal context

intertwined with the presumption of innocence, burden on the prosecution, based on reason and common sense being logically connected to the evidence, more proof is required than probably guilty.  

Don’t describe as: feelings of sympathy, same standard as important decisions in life, moral certainty, qualifying doubt w/ any other word than reasonable.

R v. Oakes (1986) ~ BRD and legislative provision in Narcotics Control Act

Presumption of innocence, proof beyond a reasonable doubt in a case of legislative provision; s.8 – if R could prove possession, onus then shifts onto accused to prove on balance of probabilities (reverse onus) that he/she was not in possession for the purposes of trafficking; court says violates s. 11(d) of Charter (presumption of innocence subject to proof BRD); possible situation where convicted despite reasonable doubt

Ratio:   Oakes Test for determining if Charter violation saved by s. 1 (“demonstrably justified”) ~ civil std of proof = balance of probabilities

1.      Pressing and Substantial Objective ~ yes, attempt to end war on drugs

2.      Proportionality Test ~ means must be reasonable and demonstrably justified in a free and democratic society

a.      Rationally connected: measures adopted must be rationally connected to objective ~ NO; possession of negligible quantity of drugs does not support inference of trafficking; this inference irrational

b.      Minimal Impairment ~ infringe right as little as possible

c.      Proportionality btwn effects of measures taken and pressing and substantial objective ~ deleterious/harmful effects

Scope of the Criminal Law ~ possible policy question

v     Why do we make things criminal?

v     What is the criteria that we use for determining that something is serious enough to be worthy of the Criminal Code?

-        Hart/Dublin debate

-        Looking at homosexual and prostitution offences ~ Woolmington commi

-        focused on acts that enforce some peoples private morality or on those that are harmful to others?

-        Dublin - Enforcement of Morals ~ common morality that is necessary for the cohesion of society

-        Hart ~ law should be focused on preventing acts that cause harm; problem with notion of harm ~ doesn’t itself get away from value decision, what is harm enough? (ie. Prostitution, pornography)

-        Harm principle easy, but socially constructed and subject to lots of debate

-        N.D. Walker “Borderline Offences” ~ heavy hitter in criminology

-        Eg. Adultery, incest (often one party is not consenting, if decriminalize then may make it harder on the victim b/c argument might be made that they did consent)

-        Bigamy, attempted suicide

-        Assisted suicide is still an offense (ie. Euthanasia) ~ SCC said it was a valid criminal offence; can’t encourage that active participation of one person in the death of another

-        Applications for law to be struck down with argument that in violation of s. 7 ~ no fair to penalize when no good reason to do so

-        Decriminalizing simple possession of marijuana; is this harmless?

-        Notion of invasion of privacy; guy with shoe camera to take pictures of women and children’s underwear

-        Draft legislation for criminal invasion of privacy: surreptitious viewing of people in certain sexual contexts that we’re going to criminalize

R v. Butler (1993 – SCC) ~ Butler test for obscenity

B owns a shop that sells hardcore porn and sexual paraphernalia.  He is charged with over 200 counts of selling and possessing obscene materials. Trial judge concluded that all of it was obscene but most of it was saved by the freedom of expression guarantee.

Issue:   Can certain things be considered criminally obscene and, although in violation of freedom of expression, be saved under sec 1? (Yes) ~ b/c

Ratio:   Three tests are applied in conjunction with each other to determine if the exploitation of sex is “undue” which means it will be illegal.

1.      Community Standard of Tolerance Test- standards of community as a whole must be

considered and they should remain contemporary.

2.      Degradation or Dehumanizing Test- this type of material is most likely to fail the CSTT

      because it is percieved by the public to be harmful to society esp. women.

3.      Internal Necessities Test or Artistic Defence- does the exploitation have a justifiable role in

      advancing the plot or theme or is it merely dirt for dirt’s sake.

**this focuses more on the harm principle for criminalizing material as opposed to the common morals principle; pornography harmful in it’s degradation and dehumanizing

Sources of the Criminal Law

3 sources of law:

            1. Statute (Criminal Code, regulatory offences)

            2. Common law (judge made) – through interpretation of statute and precedents

3. Constitution/Charter ~ jurisdiction for crim law divided btwn fed and prov gvnts

            s. 91(fed): substantive criminal law and criminal procedure

s. 92(prov): setting up court structure and administering criminal procedure

Charter à no law can exist if in violation of the Charter

R v. Sedley (1663) ~ example of common law offence

Breach of King’s peace by being naked & rowdy in public; *morality vs. law; example of common law offences; Court of King’s Bench decides whether common law offence or not; seen as guardian of morals; morality and law intertwined at this time; problem b/c if what is criminal is up to discretion of C of KB people don’t know what is criminal in advance, can’t avoid doing it; law needs to be certain to have a deterrent effect

Frey v. Fedoruk (1950) ~ not up to courts to make criminal law, up to Parliament

Peeping tom case; not a criminal offence in Criminal code but judge finds that criminal offence at a common law; principal of legality à law must be knowable and prescribed in advance; can’t be retroactive; don’t want what criminal offences are up to discretion of judges, would be too uncertain

-        notion of common law offences as criminal abolished under s. 9 of Code (except contempt of court)

-        common law defences still available under s. 8 of Code

R v. Jacob ~ community standard of tolerance test for what is “indecent”

Woman walking topless at charged with committing an indecent act; judge’s interpretation of what is indecent; community standard of tolerance test

Ratio:   Decides that the act must include an element sexual in nature for sexual gratification and tested by community standards in order to be obscene under section 173(1). A reasonable bystander observing Jacob would not conclude this;

**words like indecent and obscene ambiguous and need interpretation à how judges fill out the criminal law by giving it meaning

R v. Heffer ~ Vagrancy

H hitchiked from Vancouver to Winnepeg, upon arrival went to the unemployment office and got a card from them, then stayed in a hostel for the night. The next day he stopped on the steps of a building to have a cigarette spoke with some others doing the same on the way to the employment office. A police officer told all of them to get in his car and took them downtown and charged them with vagrancy. H tried to show his employment card and other things but the officer ignored him and he was convicted, sentence suspended. H inquires into the validity of the conviction.

Ratio:   three elements of vagrancy

1.      Not having the any apparent means of support

2.      found wandering abroad or trespassing

3.      Does not, when required, justify his presence in the place where he is found

The first two elements are not (and should not be) crimes in and of themselves. Therefore the accused must be given an opportunity to justify his presence before he is charged, arrested or otherwise detained by law enforcement. Conviction quashed.

Formal Requirements of Criminal Statutes ~ Vagueness and Overbreadth

Principle of Legality ~ restraint on Parliament

a.      must be knowable and accessible ahead of time

b.      must be expressed with a reasonable degree of certainty so that the person knows whether his/her conduct is covered by the law

c.      also requires that criminal laws not be retroactive

Criminal law should be repealed if too vague or found to be overbroad. Challenge usually brought under s. 7 on basis that this requirement is a principal of fundamental justice.

R v. Pharmaceutical Society (Nova Scotia) (1992) ~ vagueness

12 people charged with conspiracy to prevent or lessen competition unduly, against s.45(1)(c) of the Competition Act; court quashed charge on basis that “unduly” to vague

Ratio:   Test for vagueness:

1.      Proper notice to citizens ~ so they know what is illegal and what is not

2.      Limit of Law Enforcement Discretion ~ need to prevent arbitrary interpretation of meaning to secure conviction; can’t allow it to be molded to fit agenda of prosecutors

R v. Heywood (1994) ~ Overbreadth

Loitering near kids’ parks & charged w/ vagrancy (convicted sexual offender) contrary to s.179(1)(b);

Ratio:   s.179 (1)(b) of the CCC is unconstitutional for overbreadth.

It runs contrary to ss 7 and 11(d) of the Charter and is not saved by s. 1.

It violates the principals of fundamental justice by its ambiguity, and by restricting liberty far more than necessary to accomplish its goals. A purposive approach to the legislation is taken to decipher this result> modify the law.  Objective of the legislation is good, but the means chosen to achieve it are too broad – overly broad for 3 reasons: (1) geographically over-broad; (2) overly broad temporal aspect (lifetime w/ no review); (3) overly broad in terms of the people to whom it applies

NOTE:  s.7 Charter breaches are rarely saved under s. 1 except in extreme circumstances

Strict Construction of Criminal Statutes

There is no constitutional right to strict interpretation of statutes; must adopt purposive interpretive approach that will obtain its objectives (in the spirit of the section); but if two equally reasonable interpretations, or if a true case of ambiguity, then the more favourable interpretation for the accused. However, that interpretation must be reasonable.

R v Pare (1987) ~ s. 231 ~ elevation to 1^st degree murder if done while committing another of listed crimes

Sexually assaults little boy, then kills him when he threatens to tell; charged with 1^st degree under s. 231(5); D argues that section should be interpreted strictly, that he didn’t kill the boy while raping him; that he is entitled to this interpretation b/c it is most favourable to him

Ratio:   most favourable interpretation to D ONLY when case of true ambiguity or two reasonable interpretations available; says not reasonable; views act as a “single transaction” à continuing domination of the victim; this the best interpretation to capture the objective of section (purposive interpretation)

Actus Reus (The Act Requirement)

Required Element of Actus Reus- a guilty act or omission that is precondition to criminal liability

1.      commission of an act OR

2.      omission – failure to do something on the part of the accused

3.      act must be done by a human being

4.      must be done voluntarily

5.      show that they caused consequences attached to the crime - causation

4 Issues Of Actus Reus

1.      Positive Act à Commission of Unlawful Act

2.      Omissions à where legal duty to act

3.      Voluntariness

4.      Causation

Voluntariness

Requirement that an act is voluntary; minimal requirement of agency/authorship; fundamental defect if no authorship to the act. H.L.A. Hart ~ “some vital component of normal action is absent”; movement of accused can be causal in harm but doesn’t mean that author of the act

Two categories of cases:

1.      the unconsciousness cases ~ don’t act in a voluntary way

a.      while having a concussion, act unconsciousness

b.      psychological blow ~ go into a disassociative state

c.      sleepwalking

d.      extreme drunkenness ~ not valid excuse because you got yourself into the state in the first place even if you weren’t consciously the author of your acts

2.      behaviour is beyond control (conscious but incontrollable)

a.      someone physically makes you act

b.      epileptic seizure/ unconscious fit

Involuntariness defense = Automatism (R v. Parks)

R v. Lucki (1955) ~ involuntary act beyond control

Skidded car b/c of ice onto wrong side of road; defense = no voluntary act

Ratio:   Involuntary act beyond his control = no liability even though no mens reus requirement (strict liability) for the offence; acquittal b/c absence of actus reus

R v Wolfe (1975) ~ reflex action?

Hotel owner whacks unwelcome patron with phone after being surprised with a sucker punch

Ratio:   D was agent of his act; no a reflex action b/c he actually turned around at hit the guy, wasn’t a knee jerk reaction (but if it was then could be used to prove that no voluntary actus reus)

** value judgment in this case to find that no reflex action; had to make decision as to whether wanted to extend criminal liability to this kind of action

R v. Ryan ( 1967 – Aust. High Commission) ~ accidental gun discharge (criminal position)

Robbed service station while attempting emulate novel story; while tying up attendant, he flinched and gun accidentally discharges and kills him; argues that a reflex action and therefore not a voluntary act

Ratio:   when put yourself in criminal position, liable for involuntary reflex b/c increased danger and criminal potential by having the gun and attempting to commit robbery; gun discharging was probable and foreseeable consequence in response to victim’s sudden actions à involuntariness defense not allowed à realistically look at circumstances as one transaction (robbery and shooting)

Kilbride v. Lake (1962 – New Zealand SC) ~ intervening act & strict liability

Parks car, walks away, and someone takes of certificate of fitness; absolute prohibition/liability for having a car on the road without it ~ strict regulatory offense, no fault required

Ratio:   if you have no way of controlling an intervening act that affects your ability to comply with the law, then you were not the actor of that act; no authorship = no voluntary act

Commission of an Unlawful Act

Minimal requirements in terms of action = ; external circumstances of an offense can attribute an act (ie. constructive possession); definition of act is sometimes difficult and controversial

Prostitution

Hutt v. R (1978) ~ public disturbance & prostitution

Solicited an undercover police office in his car

Ratio:   Instead of a literal interpretation, a puposive interpretation of the statute is given revealing the history of the statute to prevent public disturbance. Therefore, a car is not a public place and solicitation includes the concept of persistent communication. Spence finds she was no more soliciting than the cop and therefore she was not actually soliciting, ie: she did not commit an unlawful act under that provision. This is now different, s.213(2) makes a car a public place – communication is now a material element of the offence.

Prostitution Reference (ss. 193 & 195.1(1)(c))

Supreme Court rejected a Charter challenge to ‘communicating for the purposes of prostitution’ under freedom of expression (s. 2(a)) because it was saved by sec 1. Decided unanimously that the provision was not too vague, but was divided on whether it was overly broad and therefore did not meet the minimum impairment provision in the Oakes

** look at this case with regards to what is enough to trigger criminal law – the external circumstances (not just the act in terms of language, etc) – the act that causes the situation, the nuisance – that is the actus reus of this offense

Possession

R v. Marshall (1969) ~ necessary elements for possession

D in car on long drive, others smoking pot but he didn’t have any; he did pass a pipe though;

Ratio:   3 elements required for act of possession: control, knowledge and consent

Marshall didn’t meet requirements b/c had no power to control the persons possessing the drugs, no right to control, and he did not consent to its presence, nor was he the owner of the car. The decision he faced was leaving the car and it was not reasonable for him to do so. Knowledge and consent means some element of control. Passing the pipe seen as a reflex action and therefore didn’t constitute the necessary control for the act.

R v. Terrence ( 1983) ~ constructive possession

Charged with possession of a stolen vehicle, car stolen by friend and Terrence not aware it is stolen until already driving; Crown did not prove he had the requisite degree of control

Ratio:   a measure of control on the part of the person being accused of possession is a necessary and essential element of the meaning of possession in s. 4(3)(b) of the Criminal Code; “knowledge and consent cannot exist without the co-existence of some measure of control over the subject matter”

Re Chambers and the Queen (1985) ~ constructive possession

C’s boyfriend was storing cocaine in her bedroom. Police searched the apt and charged C with possession.

Issue:   Is there enough evidence for a trial that C was in possession of the cocaine? (Yes)

Ratio:   Her consent and ability to revoke consent to having the drugs in her room (control over the premises) constitutes an element of control over the substance, therefore there is enough evidence for a trial (maybe not a conviction).

Assault

R v. Jobidon (1991) ~s. 265(1) ~ consent as a defense to battery ~ will negate actus reus

J and H consent to fight each other. J punches H and knocks him out but keeps punching several times. H dies as a result of the head injuries. J found not guilty of manslaughter b/c H consented to the fight, therefore it not assault, therefore the death not caused by an unlawful act.

Ratio:   there are limitations to the consent defense; can vitiate consent if bodily harm is intended and caused

Gonthier à Policy reasons for preventing intentionally causing bodily harm à no social benefit

Sopinka à consent did not extend beyond consciousness, once unconscious, consent ended

Bolduc and Bird v. R (1967) ~ fraud vitiating consent/assault

Dr. and friend; peeping tom in pelvic examination; passed friend off as doctor; patient consented to having Bird there; both charged with indecent assault; argued that fraud vitiated the consent that the victim gave s. 141(2) (“fraudulent representations as to the nature and quality of the act”) ** section now repealed

Issue:   whether the fraud committed vitiated the victim’s consent (NO)

Ratio:   if the fraud practised in a situation is for something other than the nature and quality of the act that was consented to, no criminal offense has been committed under s. 141(2) ~ has to be directly related to the act consented to

R v. Cuerrier (1998) ~ s. 268 ~ Fraud/aggravated assault ~ endangers life ~ HIV

HIV positive has unprotected sex with partners and does not tell them; accused on two counts of aggravated assault on the basis that consent was obtained fraudulently and that the fraud vitiates the consent given

Issue:   Does fraud vitiate consent in this case? (YES)

Ratio:   Courts trying to fill out minimum requirement for fraud

Majority: Existence of fraud should not vitiate consent unless there is a significant risk of serious harm; no longer necessary to examine whether the fraud went to the nature and quality of the act; However, do need some limits on the concept of fraud in terms of vitiating consent

Dissent: L’H-D argues that fraud is simply about whether the dishonest act led to obtaining consent, it should not hinge on a risk of bodily harm

Dissent: McLachlin argues that fraud has always relied on the mistake going to the nature and quality of the act and the legislature did not mean to strike out that part of the law, so we should keep it. Must relate to the physical act itself – fur coat promises not good enough. ~ concern of court not to set the bar too low, thereby criminalizing acts that they shouldn’t

Public Disturbance 

R v. Lohnes (1992) ~ s. 175(1) ~ public disturbance

Incident occurred btwn two neighbours in which one neighbour (Porter) aggravated the other (Lohnes) with his incessant noise from running motors that made too much noise to the extent that he (Lohnes) screamed obscenities and almost threats; Lohnes convicted on grounds that his conduct constituted a public disturbance

Issue:   use a narrow or broad definition of what is necessary for an unlawful public disturbance to occur ~ what is enough to attract liability?

Ratio:   meaning of disturbance under s. 175(1)(a) is something more than emotional upset; there must be an externally manifested disturbance that interferes with the ordinary happenings in the public place; disturbance can be in the act itself or may flow as a consequence of the act

            A just balance btwn freedom of expression and collective right to peace and tranquility

R v. Burt (1985) ~s. 253 ~  excessive noise/s. 7 violation for vicarious liability

Car making excessive noise in streets; could not figure out who driver was so owner is charged; vicariously liable for the act of another

Ratio:   s.253 is in violation of s.7; The statute imposes vicarious liability of the owner unless he can prove he was not the driver. This creates a reverse onus. The charge can contain jail time and therefore the owner could be convicted in the absence of proof  of both mens rea and actus reus. Fundamental justice principles encompass the concept that the person should not be punished in the absence of a wrongful act; à absence of actus reus imposes unfair labelling & unfair attribution of stigma

            ** Charter required an act before criminality is imposed and strikes the provision

Omissions

-        struggle in these cases is that the courts would like to treat an omission as an act ~ try to impute actus reus

-        criminal law supposed to tell you what you can’t do instead of what you must do ~ doesn’t impose duties

-        generally only impose criminal liability if only where there is a formal legal duty to act (Beardsley)

-        legal duty to act can be found in common law or statute (Thornton)

-        s. 216/217 triggered if you fail to act (Thornton) ~ duty of persons undertaking acts

** a possible policy question à see Ashworth talk notes

O.W. Holmes, The Common Law

“Although a man has a perfect right to stand by and see his neighbour’s property destroyed, or, for the matter of that, to watch his neighbour perish for wand of his help, yet if he once intermeddles he has no longer the same freedom.”

à must trigger the legal duty not to omit to do something

Fagan v. Commissioner of Metropolitan Police (1968) ~ omission & continuous act

Failure to remove car from officer’s foot – charged with assaulting a police officer;

Ratio:   Court imposes the necessary mens rea and see it as one continuous act

Look for a continuous act rather than an omission. For an assault there must be Mens Rea and Actus Reus. The initial act could be unintentional, knowledge or mens rea can be superimposed on the already occurring actus reus during a chain of events. This is not entirely an omission.

R v. Miller (1983) ~ Omission & Arson

Squatter fell asleep while smoking a cigarette and set fire to room; woke up, saw fire, moved room and went back to sleep; charged with arson

Issue:   is the absence of an act enough to impute liability for arson; was he criminally liable for omitting to put the fire out? (YES)

Ratio:   “If one does not try to prevent or reduce the risk of damage when he is aware the events have happened as a result of his own acts, he is guilty of arson”. If you cause a problem, you have a duty to fix it.; duty theory (omission) vs. continuous act theory (act)

R v. Thornton (1991) ~s. 180(2) common nuisance ~  legal duty/HIV contaminated blood donated

Guy knowingly donated HIV contaminated blood to Red Cross; charged with committing common nuisance under s. 180

Issue:   whether a legal duty in s. 180(2) is imposed by common law or statute; if it can be imposed by common law, is there such a legal duty not to donate contaminated blood

Ratio:   common law fundamental duty to refrain from conduct that could be reasonably foreseen to endanger the lives of others applies to the duty to not knowingly (mens rea) donate contaminated blood

SCC à s. 216 “duty of persons undertaking acts dangerous to life” imposes legal duty in this case

o       s. 216 ~ regarding medical treatment or who does a lawful act who may endanger the life of another ~ doesn’t create and offense but a duty that may fit into another offense

o       s. 217 ~ who undertakes to do an act has a duty to do it, and if he omits to do it, is criminally liable for not doing it

**Trotter says not clear what SCC was trying to do here; may be imposing an overarching legal duty here

**I would think that SCC focus on s. 216 for the words “or to do any other lawful act that may endanger the life of another person”

R v. Browne (1997) ~ s. 217 ~ undertaking and legal duty

Drug dealers; one swallows bag of crack so not to get caught and couldn’t throw it up; D found her in bad shape and promised to take her to the hospital; called taxi but it didn’t arrive for 20 minutes; she was dead when got to hospital

Issue:   Did his undertaking create a binding duty? (NO) Did D have a legal duty to get her to the hospital sooner (omission to do so)? (NO)

Ratio:   Must look at undertaking and determine if binding in nature before imputing legal duty; for undertaking to be binding it must reasonably be said that reliance has been placed on that commitment to the person’s detriment

People v. Beardsley (1907 – Michigan SC) ~ legal duty based on moral obligation?

B went on a drinking binge with a woman he was having an affair with. During the visit the woman took morphine pills and B tried to stop her. She passed out and he arranged with another man for her to sleep it off in his room and then let her out the back in the morning. She died.

Issue:   Did B owe a duty of care to this woman that he failed to discharge? (No)

Ratio:   No such legal duty is created based upon a mere moral obligation.

Causation

Ø      you will be held responsible if your act is sufficiently connected to the result to have caused the harm

Ø      for some offences, the actus reus requires the causing of certain circumstances eg; homicide s. 222; arson s. 433 and causing bodily harm s. 221 or causing death by criminal negligence s. 220

Ø      Manslaughter – de minimus test is OK

Ø      1^st degree murder – substantial test – Harbottle

Ø      question = is the persons the author of the event (and its consequences)?

Smithers the foundational test à contributing cause of death outside the de minimis range

Blaue à operative cause of death à thin-skulled rule (take victim as you find them)

Harbottle à 1^st degree murder à play a physical role (higher threshold b/c of specific wording of section + stigma and sentencing)

Cribbin à Smithers test survives Charter challenge à test not too broad

Nette à Smithers test ok for 2^nd degree à wording of section doesn’t signal higher threshold and stigma not as severe

R v. Micheal (1840) ~

M was the mother of George, a ten month old baby. In an attempt to cause his death she gave to his nurse a bottle of poison which she called medicine and asked the nurse to give it to him.Nurse ignored her, but the nurse’s young son gave it to him without knowing what it was and he died.

Issue:   Is M still guilty of murder? (Yes)

Ratio:   Whether through the nurse or through the child, M is still administering the poison as if from her own hand, therefore the chain of causation is not broken.

A person “X” can not absolve them selves from an offense by involving an unknowing third party to commit the offense as an unconscious agent. The unconscious agent is not criminally responsible and person “X” is.

Smithers v. R. (1978) ~ Smithers Test for Causation for manslaughter ~ must take victim as you find them

Fight after hockey game, after being kicked victim choked on vomit, aspirated and died

Issue:   Did Smither’s cause Cobby’s death?

Ratio:   Smither’s test = act must be at least a contributing cause of death outside the de minimis range (de minimis range = minor, trivial, negligent) for criminal liability (non-trivial cause of death)

Thin-skulled man rule – you must take your victim as you find them, doesn’t matter if they have pre-existing physical conditions or are otherwise weak in any way

R v Blaue (1975) ~ Jehovah Witness refusing treatment ~ must take whole person as you find them

Blaue went to the victim’s house and asked her for sex, she refused, he attacked her a stabbed her four times with a knife; Victim went to the hospital and refused blood transfusion b/c Jehovah’s Witness; she died; if she had had the transfusion, she would have survived; Blaue convicted for manslaughter on the ground of diminished responsibility

Issue:   Was their a break in the chain of causation that absolved liability? (No)

Ratio:   Those who use violence against others must take the victim as they find them. This means the whole person, not just the physical person. It is not for the jury to decide whether the woman’s faith was unreasonable. Stab wound was operative cause of death. The victim’s refusal of treatment did not break the causal connection between the act and her death. Extension of thin-skulled rule (but maybe too much of a stretch b/c religious beliefs not a medical condition)

            ** s. 224 supports this (death which might have been prevented)

R v. F.(D.L.) ~ jaywalker hit ~ outside de minimis range

Driving drunk without glasses and hits jaywalker

Issue:   Drunk driving (unlawful act) a contributing factor outside the de minimis range? (YES)

Ratio:   De miminis test the governing one. But judge expresses concern that this test two low a threshold; sweeping test of accountability; may lead to results that are in conflict with s. 7’s principles of fundamental justice

R v. Harbottle (1993) ~ new test for 1^st degree murder = substantial and integral cause of death à more than de minimis test

Accused was an accomplice in the sexual assault and death of a young women; after the sexual assault, the accused held the victim’s legs down while his companion strangled her; accused charged and convicted of first degree murder pursuant to s. 231(5) (elevated to 1^st degree while committing another crime)

Issue:   Is Smithers test appropriate for 1^st degree murder under s. 231(5)? (No)

Ratio:   Wording of section suggests higher level of causation required (highest degree of stigma in criminal law)

First degree murder requires a new causation test for s. 231(5). Crown must prove beyond a reasonable doubt that:

§        the accused was guilty of the underlying crime of domination or attempting to commit that crime

§        the accused was guilty of the murder of the victim

§        the accused participated in the murder in such a manner that he was a substantial and integral cause of the death of the victim

§        there was no intervening act of another that resulted in a break in the chain

§        the crimes of domination and murder were part of the same transaction

R v. Cribbin (1994) ~ Charter challenge to Smithers test àstill ok

Accused punched and kicked the victim before his companion attacked the victim; either injuries were not life-threatening but the victim later dies from drowning in his own blood; convicted of manslaughter; appeal b/c of charge for causation

Issue:   Smithers test unconstitutional b/c too vague/remote? (No)

Ratio:   The substantial cause requirement is only made in first degree murder, for manslaughter the Smithers test of outside the de minimus range is sufficient.

            Reasons for Upholding the Smithers Test:

·        The Smithers test is not too vague because any other test would not add any more precision.

·        It is not too remote because the actus reus requirement of murder and manslaughter is the same, it is the different degree of fault that distinguishes them: subjective vs. objective foresight.

·        Causation is embodied in the principle of fundamental justice that states that the morally innocent should not be punished. The de minimus test, when combined with the fault requirements to be met from Creighton removes any danger that the morally innocent might be punished.

Regina v. Nette (2001) ~ Smithers test ok for 2^nd degree murder

Ratio:   not same language in s. 229 and in s. 231(5); not a clear signal that higher degree of causation required

Cribbin à must look at attribution of responsibility from Smithers test for causation in conjunction with high fault element required à still high threshold and therefore not in violation of s. 7 of Charter

Intervening Cause

4 Rules Where Intervening Cause Doesn’t Break Chain of Causation

            1. s. 222(5) ~ threats of fear or violence

            2. s. 224 ~ death which might have been prevented (Bingapore)

            3. s. 225 ~ death from treatment of injury (Smith)

            4. accelerating death ~ “thin-skulled rule”

R v. Smith (1959) ~ intervening cause of death?

Appellant in barracks with other soldier’s an was involved in a fight where three men were stabbed with a bayonet; one who had two stab wounds in arm and back died; appellant convicted of his murder; a bunch of extenuating circumstances happened after that made the situation worse and probably inhibited his chances of surviving; argued that chain of causation broken

Issue:   Chain of causation broken? (No)

Ratio:   For chain of causation to be broken, need an independent intervening cause is so overwhelming that it makes the original wound only part of the history of the incident; bayonet wound still found to be operative cause of death. Doesn’t matter that medical treatment administered negligently (s. 225)

The Queen v. Bingapore (1974-5 – S.Australia SC) ~ negligence/stupidity acting against medical advice ~ take victim as you find them

Victim hit over head; hospital says don’t leave; he does (grossly negligent) and dies

Issue:   Was chain of causation broken? (No)

Ratio:   The act of B causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some third party is negligent. Still operative cause of death

Commonwealth v. Root (1961)  ~ reckless driving + victim responsibility

Two drag racers; victim tries to pull ahead of other driver and drives into oncoming traffic; hits a truck; other driver charged with manslaughter for victim’s death; reckless driving caused death

Issue:   Too remote? (Yes).

Ratio:   Not sufficiently direct cause of death to make criminally liable. Tort liability standards do not apply to criminal cases.

The Fault Requirement: MENS REA

Absolute liability Offences – permit an immediate conviction on proof of a specific legal prohibition (unlawful act)

Strict Liability Offences – liability attaches when Crown proves the act occurred, the defence must prove s/he acted with due diligence (was not negligent) to prevent conviction.

Full Mens Rea Offences – Crown must prove prohibited act along with the requisite mental element.

Objective Standard – the accused should have held to reasonable standards of conduct and did not. Ask normative questions, such as the reasonable person questions. “A marked (and substantial) departure from the standard of care of a reasonable person” Cory, R. v. Hundal

Subjective Standard – must find out what the accused actually had in their mind, things like intention, purpose or wilfulness. Can examine what a reasonable person might have done, decide from evidence, conduct, statements made by accused, testimony, then assess the actual person’s conduct and state of mind.

“Subjective awareness of the consequences may be inferred from the act itself… the fact that such an inference is made does not detract from the subjectivity of the test.” McLachlin, R. v. Theroux.

(1)   highest level of fault à intention, purpose, or wilfulness (cluster of expressions that get around one concept)

(2)   knowledge à knowing that your act will bring about certain consequences w/o meaning or intending to bring them about; what the person knew, not what s/he ought to have known

(3)   recklessness à looking more into the future – your conduct will bring about certain circumstances & you are prepared to take the risk/ you don’t care & persist; present circumstances

(4)   wilful blindness à variation on recklessness – failing to inquire when the person knows there is a reason to inquire; would rather not know

R. v. Theroux (1993 SCC p351) ~ Fault Req for Fraud

Discussed the fault req’t for the crime of fraud - typical test for mens rea is subjective -crt looks to the accused’s intention and the facts as the accused believed them to be - 2 collateral points:

1.     person is not saved from conviction because he/she believes there is nothing wrong with what he/she is doing - the question is whether the accused subjectively appreciated that certain consequences would follow from his/her acts, not whether accused believed acts or consequences are moral

2.     the Crown need not, in every case, show precisely what thought was in the accused’s mind a the time of the criminal act - in certain cases, subj awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference - the fact that such an inference is made does not detract form the subjectivity test.

R. v. Mulligan (1976) Ont CA  ~ Accused’s Statements and Subjective Fault

M stabs his wife a bunch of times, then testifies he was not trying to kill her.

Issue:   Must this evidence be taken into account in a case of a full mens rea offence? (No)

Ratio:   Jury is entitled to disregard those statements made by the accused if they think he is lying. The Objective test can be used as evidence to determine whether they believe the accused’s subjective statements.

            First use objective test for inference, then use subjective test.

D.P.P. v. Smith (1960) England

S steals some scaffolding stuff, gets in his car and a cop tells him to stop and get out. S drives off and the cop hangs on to the side of his car, S swerves and drives fast to shake him off, he does and he dies. S testifies he didn’t mean to kill the cop he was scared and it happened really fast. Judge charges jury on mens rea and stops at objective standard.

Issue:   Is this a proper charge in law? (No)

Ratio:   The judge needed to include the inference into the actions of the accused to determine a subjective standard required for a capital murder conviction. Left it at objective standard which is too low a mens rea requirement for capital murder. S gets hanged, case is no longer good law.

Public Welfare and Regulatory Offences – FAULT

Note: there is a common law presumption of mens rea unless specifically stated in legislation or regulation that mens rea not required

Note: when a public offence, standard is almost always strict liability

Beaver v. R.  (1957 SCC) ~ Possession and Knowledge

Accused thought he was selling sugar, but in fact sold cocaine.

Issue:   Does this constitute criminal possession? (No)

Ratio:   The crime is the possession of the criminal substance, so in a criminal case, there is no possession without the knowledge of the character of the forbidden substance. Unless the statute explicitly says no mens rea component required, strict construction of the statute goes to the favour of the accused.

            True crime v. regulatory offence à true crime presumption of mens rea

R. v. Pierce Fisheries Ltd. (1969 NSCA) ~ Statute indicates no mens rea à absolute liability

Accused found in possession of lobster smaller than regulated size.

Issue:   Is knowledge of possession of those lobsters required for a conviction? (No)

Ratio:   CA says strict liability necessary to enforce standards and it is too hard to prove fault, plus, if there is no fault, we can’t encourage better care to be undertaken. No strict liability because it is possible that fishermen will have small lobsters onboard before they can sort through them, and that would lead to faultless people being charged

            Distinguished from Beaver because of the penalty attached to drug possession and the negative stigma, it is not a true crim offence it is the regulation of an industry, there is no stigma attached therefore no mens rea req’d.

R. v. Hickey (1976 Ont. HC) ~ Mistake of Fact and Absolute Liability

H, a truck driver, is charged with speeding - his speedometer broken and he had no reason to suspect a malfunction.

Issue:   Can he use mistake of fact that would render his mind not guilty as a defence? (No)

Ratio:   Court says absolute liability offence, and reasonable mistake of fact no defence – sets stage for creation of strict liability fault characterization in St Marie

R. v. Sault Ste. Marie (1978 SCC) ~ Creation of Strict Liability

The city deposited material into a river in violation of the Ontario Resource Water Act, they had contracted the removal of the waste out to a company who did it badly and was fined.

Issue:   Should the city be fined?

Ratio:   1-True crimes/ Full Mens Rea (mens rea= intention,purpose,willfulness, knowledge, recklessness, willful blindness, must be proven by the prosecution either as an inference from the nature of the act committed or by additional evidence).

 2- Strict Liability (not necessary for the prosecution to prove the existence of mens rea. Crown must prove the doing of the act. The defendant may prove due diligence/ reasonable care to escape liability under a reverse onus)

3- Absolute liability- (crown must prove the act, no requirement for actus reus or mens rea. Accused cannot exculpate himself by showing that he was free of fault. Absolute liability must be proscribed by the legislature or the offence will be considered one of strict liability.)

R. v. Wholesale Travel Group Inc.(1991 SCC) ~ Reverse Onus for Strict Liability Constitutional

W accused in violation of the Competition Act for misleading advertising, which is not a true criminal offence.

Issue:   Can there be a reverse onus for strict liability offences? (Yes, it is constitutional)

Ratio:   Regulatory offences shift the emphasis from the protection of society, deterrence and punishment of moral fault to the protection of public and societal interest eg. unfair competition and misleading advertisements.

The reverse onus is justified under s1 because the company is in a better position to prove what was happening at the company during the time of the offence.

Licensing justification: By choosing to enter into the regulated field of business, you are consciously assuming the risks involved. You must make it your business to know the regulations and abide by them.

Reference re Motor Vehicle Act (1986 SCC)

Cannot have an absolute liability offence that could lead to imprisonment.

Held: That absolute liability offences cannot have as a penalty anything that could lead to imprisonment. This violates sec 7 of the Charter. à must be a SL offence à minimal constitutional requirement where possibility of imprisonment

The possibility of depravation of liberty from an offence without any mental requirement triggers sec 7, against the principles of fundamental justice.

Note*: This case is also significant b/c it is where the SCC decides that it can look at the substantive nature of legislation in light of Charter analysis.

Note*: s. 7 violation is only saved under s. 1 in times of war or natural disaster.

R v. Cancoil Thermal Corp. (1986, Ont CA) ~

Protective guard removed, in accident victim loses six fingertips

Ratio:   Courts can re-interpret a statute to make it constitutional. If AL in the statute by context, yet, penalty fine or jail mandates it’s offense to be SL so that it will not violate s.7 of the Charter. –;

            SL offence b/c if offence is AL then due diligence defence not available to respondent company; b/c of potential imprisonment, legislation is read down to avoid violation of s.7 of the Charter, & treated as SL offence (makes due diligence available) à  corporation gets benefit of s.7 constitutional argument

FAULT REQUIREMENT FOR TRUE CRIMES – subjective fault

Fault for Crimes

* Three types of crimes since Creighton

Subjective Mens Rea · aware of risk, knowledge,  all individual factors allowed eg. Murder, assault, BE, theft, possession offences

Criminal Negligence · Marked and substantial departure from the objective norm, no individual. factors allowed short of incapacity · Objective test [Hudall] eg. Dangerous driving, careless firearms, failure to provide necessities

Offences based on predicate offences · underlying offence mens rea component must be proven. Objective foresight of harm/death, no individual factors, no marked limit except for predicate offences of negligence eg. Unlawful act manslaughter, unlawfully causing bodily harm, aggravated assault, assault causing bodily harm

Murder Under Ss. 229(a)(i) or (ii)

Simpson v. R.  (1981 Ont. CA) ~ Attempted Murder and Fault (subjective)

Accused was charged with attempted murder for stabbing someone. Judge charges the jury: “...he intended to cause bodily harm that he knew or ought to have known was likely to cause death”

Held:    This standard left with the jury was objective, not subjective and therefore not sufficient for an attempted murder trial. A charge that finds the accused knows his conduct might cause death is not sufficient, infliction of bodily harm that the offender knows is likely to cause death is the standard the jury must decide. Both are higher than given at trial, therefore a new trial was ordered.

Constructive Murder: s. 230

Vaillancourt v. R.  (1987 SCC ) ~ Parties to a Crime – strike down s. 230

V was armed with a knife and his companion with a gun when they robbed a pool hall and was convicted of second degree murder. His partner in crime actually killed the victim with his gun, which V had secretly unloaded (although clearly not completely) before the robbery, but fled and was not arrested.

Issue:   Is sec 213(d) (now 230d) unconstitutional? (Yes, violates s. 7)

Ratio:   Culpability for murder with no fault it is unconstitutional: must have subjective fault for murder, this provision didn’t even have objective fault. Murder needs subjective intent, proved BRD, to satisfy P of FJ (why its’ distinct from manslaughter).  Must be correspondence between punishment and MORAL CULPABILITY.  Lack of intention = not morally blameworthy (re. Sault Ste Marie, etc).

R. v. Martineau (1990 SCC p453) ~ strike down more of s. 230

During the course of a break and enter, the companion to the D shot and killed the people whose trailer they had been robbing; accused of 2^nd degree murder under s. 230(a) and (d) and on s. 21(1) and (2) of the Code.

Issue:   Does s. 230(a) contravene ss. 7 and 11 of the Charter? (Yes).

Ratio:   It is a principle of fundamental justice that a conviction for murder cannot rest on anything les than proof beyond a reasonable doubt of subjective foresight of death. Murder = stigma, high punishment.  This section eliminates the requirement of proof of subjective foresight, and in doing so offends the Charter. S. 230(a) is not saved by s. 1 è no rational connection.

Subjectivity for murder is crystallized in this decision.

First Degree Murder – s. 230

3 types:

1. murder that is planned and deliberate (premeditated)

2. class of person killed (police officer, someone working in jail)

3. murder committed while committing other offences (Pare type offences)

R. v. Smith (1979 Sask. CA p463) ~ Planned (arranged beforehand) and Deliberate (considered, not impulsive)

Trip out to the boonies after picking up the guns, accused shot one of his buddies in the arm and as he was running away, shot him dead.  Although the person went back several times and shot the deceased, there was no evidence that he had planned the murder before going to the parked area. Therefore, he was convicted of 2^nd degree murder, not first degree murder.

Issue:   What evidence is required to show a murder was planned and deliberate (1^st degree)?

Ratio:   Planning is not intention. The planning will occur after the intent to kill is formed. There must be evidence that the killing was the result of a scheme previously formulated by the accused, and that the killing was the implementation of that scheme.

Here, the court finds no evidence of planning à sudden impulse. Don’t want to convict of 1^st degree murder lightly b/c height of moral blameworthiness.

R. v. Nygaard and Schimmens (1989 SCC) ~ mens rea linked to height of moral blameworthiness not linked to consequences  of the offence

Two men who received a bounced cheque for a stolen stereo told the two who gave it to them to ‘expect trouble’ if they didn’t get the money. They later went over to the victim’s motel room and laced him three times with a baseball bat. Victim later died in hospital.

Issues: Can the mens rea be transferred from the assault to the murder? (Yes)

Held:    Accused intended to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim -  judge finds that the subjective intent in the vicious assault is sufficient to transfer to the murder charge. It is to this intent that the requirement of planning and deliberation can be properly applied - on a culpability scale, the accused’s conduct remains at the level of first degree murder.

Murder of a Police Officer: S. 231 (4)

R. v. Munro and Munro, [1983] SCC. ~ s. 231(4) requires knowledge, or recklessness about whether a police officer or not

DD were aware that police were surrounding a store they were robbing, and were attempting to gain access: D fired a shot through the door, without realizing there was a cop on the other side of the door. Found out it was, and wouldn’t let him get medical attention. The cop dies, DD charged with 1^st degree murder of a police officer.

Issue:   can the D be charged with 1^st degree murder of a cop if he did not have subjective knowledge that he had killed a cop? (Yes).

Ratio:   the D must have realized risk that he was firing at a PO, as knew police were at front door. The recklessness the D showed with respect to whether he was shooting a police officer supplied the necessary mens rea for murder under s. 231(4)(a).

R. v. Collins, [1989] Ont. C.A. ~

Accused in a mall – approached a police officer on a break & shot him for no reason

Issue:   does the Crown have to prove accused knew he was shooting at a cop?(yes; need knowledge (value added))

Ratio:   Affirms Charter compliance of Munro; need extra degree of blameworthiness to justify the higher penalty à principle of fundamental justice – need either knowledge of PO ID or reckless as to identity; both that they’re a PO AND acting in course of duties; punishment must be proportionate to the moral blameworthiness so if there is more severe punishment for 1^st degree murder, there must be a higher fault element..  Have to interpret provision in line with Charter!

Possible Policy Question: s. 231(4) – should this list be expanded to include:

people who kill children ~ most argued as a factor to extend this to 1^st degree? Elderly persons? Level of brutality? Hate crimes? Disabled?

~ these factors can be considered to be aggravating factors that would increase the sentencing factor in 2^nd degree murder

-        underlying rationale – that an assault on the social order

-        additional mental element b/c want to provide protection for those who put their lives in danger for the sake of public order

-        if in 2^nd degree murder – don’t have this additional mental element

Constructive Murder: s. 231(5)

à imputed murder. 

à Have to pass 229 requirements first à Intention to cause death, etc.  Then try and layer things on top to make 1^st degree.  (this is why it was different from s. 230 that got struck down)

àArguably, these murders are just “as bad” as planned and deliberate (e.g. personal domination, etc).  Therefore, should be treated more harshly, and thus doesn’t offend s.7. 

àParliament fully entitled to treat some murders more seriously. 

R. v. Arkell, [1990] SCC.

victim died while the D was sexually assaulting her. D was convicted under s. 231(5) of the Code.

Issue: does this section violate s. 7 of the Charter? (No).

Ratio:   Relied on R. v. Pare:

Offences listed under this section are all offences involving unlawful domination of people by others, thus the organizing principle that where murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime

1. Crimes Requiring Subjective Mens Rea

Subjective Awareness Required for Few Crimes

·        Look for words such as “wilfully, intentionally, knowingly”

·        The SCC at present only requires subjective mens rea for a few crimes such as murder (Martineau), attempted murder (Logan), accessory liability to an offence constitutionally requiring a subjective test and war crimes against humanity

·        This analysis still looks at stigma as a factor - but the SCC has decided that subjective mens rea is not required for unlawful act causing bodily harm, dangerous driving, manslaughter, failing to provide the necessaries of life, and careless use of a firearm

·        Provincial Courts of Appeal have been unreceptive to subjective tests and often remain with the objective test

Motive à doesn’t matter in the CCC

Proved Motive è Absence of Proved Motive è Proved Absence of Motive

§        Motive and intent are separate concepts: motive is only a piece of evidence.

§        Proved motive is a powerful piece of evidence, but never REQUIRED.

§        Proved absence of motive is also a powerful persuasive piece of evidence.

§        Motive helps to establish intent, and can be used to figure out the ‘how’, or identify of Perp. 

§        May have impact at sentencing stage!

§        Animated (prompting action) and ulterior (something else to achieve beyond act)!

§        Often can help to prove identity – but again, not required. 

Lewis v. R., [1979] SCC. ~ difference btwn motive and intent

D mailed a package to his friend’s relative, but denied having any knowledge that there was a bomb in the package. D had intended to mail the package, but had not intended to kill somebody – he had not motive. Judge should have charged the jury with this information.

Issue: is there a difference between motive and intent? (Yes).

Ratio: intent is the mental element, the mens rea, while motive precedes and induces the exercise of will. It is up to the judge. Dickson sets out the role of motive:

1)     Evidence of motive is always admissible – but not required

2)     Motive is not part of the crime and is legally irrelevant.

3)     Proved absence of motive is important and worthy of a charge to the jury.

4)     Proved presence of motive may also be important – can strengthen prosecution’s case

5)     Motive is always a question of fact and evidence, and the decision to charge the jury accordingly falls to the judge.

R. v. Mathe (1973) [B.C.C.A.] 417 ~ Atttempts or Joke

Accused goes into a bank and tells teller that it is a hold-up, but then says he is joking

Held:    If the transaction amounted to a joke, there was no crime. If he was serious initially, then backed off, there could be a crime. If the evidence is not decisive on this matter, he cannot be convicted because he is not guilty beyond a reasonable doubt.

INTENTION AND KNOWLEDGE

• Intent/Knowledge à very specific, exacting à subjective states of fault (core aspects)
• Recklessness/Willful Blindness à extension of purely subjective states/expands liability à easier for Crown to establish precondition for liability à harder for accused to avoid
• no objective factor in recklessness

• Recklessness - when you know of the risk of something but proceed anyways à proxy for pure intention
• Knowledge à awareness of circumstances that are more static in time
• Willful Blindness à imputed knowledge, deliberate ignorance, proxy for pure knowledge

• “cheating the administration of justice”
• Objective fault (ie. criminal negligence) à expanding even more à what ought you have know à looks at standards that we are prepared to hold someone to

-        not just simple breach of a duty

-        a marked and substantial departure from what’s expected from the reasonable person

-        in criminal law à negligence à talking about really bad negligence

-        much more exacting phenomenon than in torts

R. v. Steane (1947) [Eng.] ~ not good law today

The accused was charged with committing an act that was likely to assist the enemy by transmitting enemy propaganda in Britain under threat of death by the German government. He claimed he did not intentionally assist the enemy because he was under duress.

1.      Did he do the broadcast? Yes.

2.      Did he do it to assist the enemy (nature of the crime)? No.

Conviction quashed.

(Likely not good law today, duress is a defence, a mitigating factor, not something which vitiates knowledge of and comission of the act).

R. v. Hibbert (1995) SCC  ~  “Purpose” in 21(1)(b) (Parties)à = intention

Set up his best friend to be shot at (wanted to murder him, didn’t succeed) in order to save his own life. Question: was his purpose to save his own life, or was his purpose to set up a situation for an attempted murder?

Issue:   What is the correct definition of purpose in this section?

Ratio:   H argued purpose is the desire to bring about certain consequences and he did not desire his friend to be shot. Lamer says no, purpose is equated with intention, H intended to bring DogHeart to the apt to shoot his friend, the duress under which he did that comes later at sentencing.

R. v. Buzzanga and Durocher (1979) [Ont. C.A.] ~ Defining “Wilfully” as Intention

The accused wrote hate literature against French people as a spoof of what was occurring in his local community to bring about political change. The accused is French but they were charged with wilfully promoting hatred against an identifiable group.

Issue:   Does ‘wilfully’ promote hatred include ‘recklessness’ in this section? (No)

Ratio:   Here, there was no intention to promote hatred and the Crown is required to prove that the accused intended to bring about the particular consequence. Wilfully includes an element of intentional here – doesn’t include recklessness

Intention is a conscious purpose to bring about consequences certain or substantially certain to result from the action. à DEFINITION OF INTENTION

R. v. Theroux (1993) SCC ~ intention not motive

T told apt buyers when he took their deposits that he had deposit insurance. He did not, the company went belly up and he lost their money. Is charged with fraud, but states he honestly believed the company would succeed.

Issue:   Does his honest belief that he didn’t need insurance negate the mens rea? (No)

Ratio:   The personal feeling of the accused about wrong doing is not an element of the crime. He completed the requirements of fraud, he undertook to deceive the people about the insurance which could cause deprivation or put their property at risk. The mens rea is therefore à subjective knowledge of the prohibited act + subjective knowledge that the act could have as a consequence the deprivation of another.

Recklessness and Wilful Blindness

Sansregret v. R., [1985] SCC. ~ willful blindness rule

D was charged with sexual assault. He asserted that he had the honest belief that he had consent from the complainant. Distinction between willful blindness and recklessness in this case

Ratio:

Ø      Recklessness: found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by criminal law, persists despite this risk. This is a subjective test.

Ø      Willful blindness: arises when a person has become aware of the need for inquiry declines to do so because that person doesn’t want to know the truth.  Also subjective

Willful Blindness Rule: can only be used where it can be said that the D actually knew. Person is aware of need to make inquiry deliberately but does not make it. Willful blindness will fulfill the mens rea requirement (knowledge) – imputed knowledge

R. v. Currie, [1975] Ont. C.A. ~ subjective requirement for willful blindness

D cashed a forged cheque as a favor for a stranger. He did not suspect the cheque was forged. Charged with uttering false documents. The trial judge said he ‘should’ have known.

Ratio:   the judge said he should have known the cheque was forged: this is objective, and WB is subjective. The accused must be subjectively aware of the need to make further inquiries.

R. v. Blondin, [1971] B.C.C.A. ~ WB doesn’t have to specifically relate

D was charged with trafficking narcotics when a scuba tank he was paid to bring back from Japan was found to contain hash. Found not guilty at trial. Trial judge charged jury that they must find that Blondin must have known there was HASH in the tank before finding him guilty. If not; not guilty. Specific knowledge is very important to the possession cases.

Ratio:   the judge ought to have told the jury that they might convict if they found he had brought the narcotics into Canada and had been either reckless or willfully blind as to what the contents of the tank were. If you can prove he had an actual suspicion that he was carrying an actual narcotic (not nec. Hash), we can use willful blindness to impute knowledge. 

àPolicy: what if thought were illegally importing cigarettes?  That suffice? 

R. v. Duong (1988) Ont CA ~

Charged with being an accessory after the fact to a murder because he let his buddy stay with him after he murdered someone. D claims he knew L did something bad, but he didn’t know it was murder therefore the mens rea requirement is not met.

Ratio:   Must have knowledge of the actual offence to be an accessory after the fact, but the judge can use wilful blindness depending on circumstances ie bloody clothes, murder on news, buddy’s conduct.

CRIMINAL NEGLIGENCE

1)     s. 219 requires  a wanton and reckless disregard for the lives and safety of other persons

2)     Determine a wanton and reckless disregard requires an objective marked (gross) departure from the standard of care of a reasonable person in the same circumstances. 

3)     When determining the “reasonable person”, the only personal characteristics of the accused that are relevant would be those that establish incapacity to appreciate the nature and quality of the prohibited conduct and consequences.

4)     What is punished is not state of mind but the consequences of mindless action.

5)     Creighton Checklist:

a.      Would the reasonable person in the same circumstances as the accused have been aware of the risk of the prohibited act?

b.     Accused will be found guilty because

i.  they did not turn their mind to the consequences of the conduct (creating that risk) UNLESS

ii.     because they lacked the capacity to turn their mind to the consequences of the conduct (creating the risk) – incapacity factor

c.      In the context of the particular offense, would the reasonable person with the capacities of the accused have made themselves aware of the likely consequences of the conduct (creating the risk)?  à if yes a marked departure from the std of care of a reasonable person

· R. v. Titchner (1961, Ont. CA):  speeding in a car, attempts to pass and loses control

 – Sets out a test for criminal negligence, to be convicted the jury must be convinced beyond a reasonable doubt that the accused acted either (based on the notion of liability in tort):

(1)   with the deliberate intention of doing or omitting to do something which it was his duty to do, the consequences of which he should have known would endanger the safety of others

(2)   had such disregard for the lives and safety of others as would indicate that he was heedless of what the consequences of his conduct might be.

· R. v. Sharp (1984, Ont CA):  charged with four counts of criminal negligence causing death

–       criminal negligence = a marked & substantial departure from the standard of the reasonable person – court ignores both O’Grady and Titchner

· R. v. Rogers (1968, BCCA):  child has serious form of dermatitis, doctor prescribes diet of “rocks and grass”, child dies

–       under s. 216 there is a legal duty imposed upon everyone who undertakes to administer medical treatment that it must be done with reasonable skill and knowledge (an objective standard); where conduct is wanton or reckless a guilty mind will be imputed

· R. v. Tutton and Tutton (1989, SCC) charged with manslaughter when parents remove child from insulin on a true spiritual belief that God will cure the child

–       objective standard if conduct = marked departure from the norm – decision here turns on reasonableness of defendant’s conduct [reasonableness may include some subjective factors]

–       mistaken belief must be reasonable to succeed in an action for criminal negligence

· R. v. Waite (1989, SCC): killed people on a hayride, drunk and playing a game of chicken, charged with criminal negligence causing death

–       on objective standard – need to prove willful blindness or a deliberate assumption of the risk

· R. v. Anderson (1990, SCC) runs a red light and kills a passenger in another car, drunk, but not impaired, charged with criminal negligence causing death

–       negligence as a marked departure from the norm will be prima facie evidence of criminal negligence BUT conduct that isn’t a marked departure doesn’t become so just become someone died (do not be distracted by the consequences, the fact that the act resulted in death does not change the characterization of the act)

· R. v. Creighton (1993, SCC):  injects drugs into the body of a friend and they die of an overdose, charged with unlawful act manslaughter

– *TEST* for criminal negligence = objective marked departure from the standard of the reasonable person

*Marked Departure Test à doesn’t account for individual factors other than incapacity (does not include intoxication); can have test of objective liability wihtout offending the Charter

Test for Criminal Negligence:

1.                Must be an objective standard

2.                Must avoid a standard of simple negligence

3.                Accused conduct must be a marked and substantial departure from the conduct expected from a reasonable, prudent person

4.                The standard is not modified by any personal facts relating to the individual, except incapacity

Debate over Objective Subjective Standard: (McLachlin pg 564)

·        Subjective mens rea – accused has intended the consequences of her actions, or that knowing of the probable consequences of those acts, has proceeded recklessly in the face of the risk. Required intent or knowledge may be inferred directly from words or indirectly from conduct.

·        Objective mens rea – the mental fault lies in the failure to direct the mind to a risk which the reasonable person would have appreciated. Not concerned with what was actually in the accused’s mind, but with what should have been there had the accused proceeded reasonably à conduct based-reasoning

·        A person may be held criminally responsible for negligent conduct on the objective test, does not violate principles of fundamental justice, however in Martineau, test that those who cause harm intentionally should be punished more severely than those who cause harm inadvertently. Also, ordinary negligence may not suffice to justify imprisonment.

Awareness of circumstances must be taken into account as part of the factual context. The answer to the question of whether the accused took reasonable care must be founded on the circumstances of the particular case. Eg, welder who inquires about explosives vs. welder who does not. Different answers of reasonable care question to same outcome.

McLachlin – only factor we should consider is incapacity.

Crimes Based on Predicate Offences

3 in Canada

1. unlawful act manslaughter (Creighton)

2. unlawfully causing bodily harm (Desousa)

3. aggravated assault

Mens Rea for these particular offences is:

a) proper fault requirement for the underlying offence +

b) objective foresight of non-trivial, non-transitory harm (inherently dangerous conduct)

two qualifiers

o       when the consequence is death, (unlawful act manslaughter) the question that gets debated is whether the Crown has to prove that you had reasonable foresight that this would result in death à NO, only reasonable foreseeability of non-trivial harm (Creighton)

o       when offense itself is based on an offense that requires negligence as the fault requirement, the Crown still has to prove a marked and substantial departure

R. v. Desousa, [1992] SCC. ~ unlawful act causing bodily harm -

D smashes a bottle against a wall during a fight outside of a New Year’s Eve party. Shards of glass injured a bystander. Charged with unlawfully causing bodily harm contrary to s. 269. Indictment quashed at trial. C.A. overturned. SCC:

Ratio:   fault requirement in terms of consequences needs to only be objective foresight of harm that is neither transitory nor trivial (or, inherently dangerously conduct). Underlying offence can’t be one of absolute liability. Unlawful = objectively dangerous. à “One is not morally innocent simply b/c a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action”

R. v. Creighton, [1993] SCC. ~ unlawful act manslaughter

Issue:   does there need to be symmetry between the mens rea and the consequences of the crime; ie. do you have to foresee death? (No).

Ratio:   You have to objectively foresee harm, not death in an unlawful manslaughter case. So, the final test for unlawful act manslaughter: in addition to the mens rea of the underlying offence, objective foreseeability of the risk of bodily harm which is neither trivial nor transitory.  Manslaughter = less than murder, not as much stigma, etc. Need to respect thin skulls

SEXUAL ASSAULT

Relevant Statutes

• s. 265 – general assault provision: the basis of sexual assault.
• s. 265(3)(4) – deals with the consent surrounding the assault – (3) tells you when consent was not given. TELLS US WHAT IS NOT CONSENT. (4) how you instruct a jury on the issue of mistake.
• s. 271 – specialized provisions – basic provision for sexual assault, although it doesn’t define what it is.
• s. 272 – sexual assault with a weapon, or causing bodily harm
• s. 273 – aggravated sexual assault – comes with a life sentence as an option.
• s. 273(1) – talks again about what is not consent – a third person saying it is okay, (Morgan) general or situational incapacity, abuse of trust power or authority. Link with 265(3) another consent provision.
• s 273(2) – it is not a defence that accused believe consent existed where accused’s belief arose due to intoxication, recklessness or willful blindness.  Accused must also take reasonable steps to ascertain existence of consent;  deals with mistake of fact in consent, and limitations on that. Link up with 273(2) another mistake provision.

Actus Reus of Sexual Assault:

• An unwanted sexual touching – a crime of general intent
• (1) Involves an intention to touch the person; (2) the touching has to be sexual in nature; (3) and it has to be in the absence of consent.
• The third aspect is subjective: subjective to the victim and her state of mind.

Mens Rea of Sexual Assault:

• (1) An intention to assault, (2) and then knowledge, recklessness or willful blindness on the issue of consent and whether the person was consenting or not.

Rape

Pappajohn v. R., [1980] SCC. – mistake of fact. 

D has sex with the V; (she says rape, he says consent). She comes running out of his house naked and bound and runs to neighbors for help. Her clothes are found neatly folded and hung, and her jewelry removed and neatly placed aside. Charged with rape. The argument on appeal was that the trial judge should have put the defense of mistake of consent to jury.

Issue:   is this defense available; does it have an air of reality here? (yes; no).

Ratio:   This case established that an honest mistake, even if unreasonable will be sufficient to negative the mens rea for rape - an honest but mistaken belief is a good defence to the charge of rape. The reasonableness of the D’s belief is only a factor in considering the honesty of the beliefIn order to put the defence to the jury, there must be outside (reasonable) evidence other than the accused’s testimony.

às.265*4* codifies Dickson’s dissent! à honest mistake of fact is subjective test but that presence of absence of reasonable grounds for that belief will be considered s.265(4)

R. v. Sansregret, [1985] SCC. ~ WB negates mistake of fact defence

D went to his ex’s house and terrorized her over her recent break-up with him. She agreed to sleep with him to keep him calm. Happens again a couple of months later, this time it is more violent. She sleeps with him out of fear for her life. Trial judge allowed mistake of fact D.

Issue:   can the D rely on mistake of fact where willful blindness is found? (No).

Ratio:   willful blindness negates any mistake of fact defense. (was aware of first complaint!) (Recklessness does not – more related to knowledge of risk of events occurring later – we’re concerned here about one moment in time) where the accused becomes deliberately blind to the existing facts, he is fixed by law with actual knowledge and his belief in another state of facts is irrelevant.

Crimes of Sexual Assault

·        In 1983, the crime of rape was replaced by the law of sexual assault - it became a tiered structure, like assault, and reflected the violent nature of the crime

·        With it came positive changes:  it was gender neutral, abolished spousal immunity, put restrictions on the cross-examination of the primary witness as to her previous sexual history, abrogated the doctrine of recent complaint, and repealed the corroboration requirements

R. v. Chase, [1987] SCC. ~ definition of sexual assault

D put his arms around a 15-year old girl ad grabbed her breasts. He made a grab for her genitalia, but the girl successfully resisted. The C.A. overturned a conviction and replaced it with a conviction for common assault, b/c the D never touched her genitalia (primary anatomy). 

Issue: what is the definition of sexual assault? Does it require contact with a particular part of the human anatomy? (No).

Ratio:   an assault with the intention of having sexual intercourse without consent, or an assault made for sexual gratification. TEST: sexual assault that is committed in circumstances of sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining the whether the conduct is sexual in nature is an objective one: is the sexual context visible to a reasonable observer? Sexual gratification is one factor to be considered. Doesn’t require any intent beyond the usual intent to imply force – no intent to the sexual aspect of things – a crime of general intent.

R. v. Bulmer, [1987] SCC. – Air of Reality to Defence of Mistake in Fact as to Consent

L hires a hooker and then springs B & I on her for a 4-some. She was told she would have to provide her services without payment. Scared, she did. No threats; money was exchanged. D argues she consented, and if not, he had the mistaken belief in consent. Judge told the jury that his belief in the defense had to be honest and reasonable.

Ratio:   To determine whether an air of reality to the defence – 1) judge must judge all of the evidence to weight whether an air of reality No air of reality if just assertion she was consenting (Pappajohn), unless evidence/circumstances. (2) If it goes to the jury, they must be properly instructed to consider the presence or absence of reasonable grounds for the honest mistake claimed by the D - does not REQUIRE reasonableness though (but helps!). when determining honesty, reasonableness is a factor to consider.   

àOsolin—265.4 is constitutionally valid: as long as don’t require information to come from someone else other than the accused.  Can tell jury to look to reasonableness of belief in order to see if it was genuinely held. 

R. v. Davis (1999) SCC ~ air of reality = possible not  plausible

“Before the defence can be considered there must be sufficient evidence for a reasonable trier of fact to conclude that (1) the complainant did not consent to the sexual touching, and (2) the accused nevertheless honestly but mistakenly believed that the complainant consented.”

Given the evidence, it must be possible (not plausible) to conclude that the actus reus is made out but the mens rea is not. That is an air of reality. There will be no air of reality where the evidence shows the accused was reckless or wilfully blind as to whether the complainant consented.

Rape Shield Provisions

R. v. Seaboyer (1991, SCC ~ outline for rape shield provisions

S charged with the sexual assault of a woman he met and drank with in a bar. Wants to bring evidence that she had left with men she had been drinking with lots before, never had a problem.

Held:    Striking down of the rape shield provisions, McLachlin replaced them with her own, legislature adopts them later on, upheld in Darrach. Eg. of the father who is accused of rape by his daughter. The daughter is mad at him because he discovers she is having a sexual relationship with her brother. The father cannot bring this evidence because it is prior sexual history, however without it he may be convicted. M’s new trial judge responsibilities:

1.      TJ must assess with a high degree of sensitivity whether the evidence tendered by defence meets the test of demonstrating a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence.

2.      TJ must ensure evidence is tendered for a legitimate purpose, no fishing expeditions.

3.      TJ must take special care to ensure jury is properly instructed as to the appropriate use of the evidence.

Bill C-49 – new legislation prompted by Seaboyer

·        Creates special limits on the mistake of fact defence which apply to all sexual assault cases

·        Accused still has to pass the air of reality test for a mistaken defence

·        Not have defence open where his mistaken belief arose from self-induced intoxication, recklessness or wilful blindness, or where he did not take reasonable steps to ascertain that the complainant was consenting

·        Although the requirement of reasonable steps does not reverse the onus of proof it imposes on the accused the duty to take reasonable steps to inquire as to consent

·        In the case of sexual assault, there can be no defence of mistaken belief unless there was a belief at the time and reasonable steps were taken

s. 276 à  admissibility of evidence

(2)(c) - has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice

(3)  -     places equality concerns for complainants on an equal footing with the accused’ s right to make full answer and defence. The provision prohibits the use of evidence when it is offered to support the twin myths, that the complainant is more likely to have consented, or less worthy of belief. Not relevent at trial.

R. v. Darrach, [2000] SCC. ~ constitutionality of new rape shield provisions

D was charged with sexual assault, and challenged the revised Seaboyer provisions under s. 276 of the Code. He attempted and was prevented from bringing in evidence regarding the complainant’s sexual history. The various provisions dealt with the admissibility of sexual conduct evidence, that the P did not have to testify at a hearing regarding the evidence.

Issue:   did the provisions affect the D’s right to a fair trial and his right not to be compelled to take the stand against himself under ss. 7 & 11 of the Charter? (No)

Ratio:   the provision prevents evidence of a complainant’s sexual history only when it is used to support one of the twin myths. The test for the exclusionary rule is in accord with the guidelines set out in Seaboyer: requires evidence to be both relevant and more probative than prejudicial. The accused’s right to a fair trial is not automatically breached when they are deprived of some relevant information.

R. v. Ewanchuk, [1999] SCC. _ LEADING CASE

D began to tough the V sexually, and she said “no”, whereby he stopped. This happened a few times, and the touching became more sexual. Each time she said “no”, and the D stopped. Starting again in few minutes. Trail judge ruled that she did not consent, but went on to find implied consent. (note- Acc didn’t testify!)

Issue:   Was there consent here? Can D rely on the fact that he believed there was? (No)

Ratio:   There are only two answers to the issue: consent or no consent; there is no doctrine of implied consent available. The sexual assault began after the 1^st time she said no. You can’t rely on a lapse of time; you need an unequivocal yes– before you can begin again. The D’s speculation as to what was occurring in the mind of the victim is irrelevant. Someone who continues to touch after a “no” is at a minimum reckless to the consent.  If accept she didn’t consent, CAN’T find implied consent! Silence or unequivocal conduct can’t equal consent.  Absence of consent – subjective – WRT complainant’s state of mind re. touching at the time that it occurred.  

DEFENCES

Mistake of Fact

-        leading case on mistake of fact as a defence is Pappajohn v. R.

-        defence constitutes a denial that the Crown has proved the fault element (mens rea)

1.      Where subjective mens rea à needs to be honest mistake (even if unreasonable)  - reasonableness only relevant to credibility (ie. reasonableness will be taken into consideration when in determining whether the evidence put forth about the mistake is believable) – but not a formal requirement

2.      Where objective negligence fault requirement à needs to be honest (subjectively held) and reasonable (formal precondition) mistake (Tutton)

3.      Where due diligence defence à needs to be an honest reasonable mistake + onus of proof is on the accused in the case of regulatory offences

4.      Mistake of fact not a defence for absolute liability offences

R v. Hess; R v. Nyugen (1990, SCC) ~

Men were charged with having sexual intercourse with a person under the age of 14. s. 146 of the CC offers no opportunity to raise the defense of mistake of fact. The statute was challenged as an infringement of the D’s s. 7 and 15 rights under the Charter. 

Issue:   did the provision infringe the Charter, and if so is it saved by s. 1?

Ruling: offends the s. 7 of the Charter, is not saved by s. 1; s. 15 offends, is saved by s. 1.

Ratio:   whole court agrees that it removes the mental element and thus infringes the Charter. Section 1 analysis says the provision can’t be fundamentally unjust, but not justified by s.1. S. 15 argument rejected by majority. This particular offence is special and is historically determined by biological things: passes s. 1.   NEED DUE DILLIGENCE DEFENSE (All reasonable steps to obtain knowledge of age!) – read in mens rea. 

- does not satisfy the proport test - the potential benefits flowing from the retention of absolute liability are far too speculative to be able to justify a provision that envisages the possibility of life imprisonment for one who is mentally innocent

R. v. Ladue (1965, YTCA) ~ transferring mens rea

Had sex with a dead woman. Claimed he thought she was alive.

Held:    Even that drunk, he could not fail to tell she was at least unconscious and therefore could not consent to sex. Therefore he was raping her. He was not acting innocently, this is a general intent offence and he had a general guilty mind. Cannot avail himself of mistake of fact.

R. v. Kundeus (1976)

Undercover cop bought drugs from K, he thought is was mescaline (lesser drug) turned out to be LSD. Charged with trafficking LSD, argument only had mens rea to traffick mescaline.

Held:    Your mistake must translate into exoneration, not dilute into a lesser crime, the state of mind must be not guilty of anything. Not his claim, he was trafficking drugs of some kind, just because it was a different drug does not mean he gets exonerated.

Mistake of Law – s. 19; ignorance is no defence!!!

R. v. Campbell and Mlynarchuck (1972)

Chez Pierre stripper.

Held:    Not a defence to be mistaken about the law. Trial judge ruled could proceed with naked performances, CA overturned. Mistake of law to assume that a judge speaks the correct law unless it comes from the Supreme Court, could always be overturned. Could mitigate sentence if relying on a lower court decision.

Two Exceptions to s. 19

1. Colour of Right - honest belief in existence of a state of facts which, if actually existed, would make acts lawful – objective test, have to ask reasonable.  Moral can’t count as legal. 

R. v. Drainville (1991)

Protested construction by blocking a road contrary to the law.

Civil Disobedience: legitimizing previously unlawful acts through civil disobedience is not an acceptable alternative to the rule of law.

Colour of Right: denotes an honest belief in a state of facts which if it actually existed would at law justify or excuse the act done. A particular application of the doctrine of mistake of fact, not applicable in this case.

2. Officially Induced Error - If aware of potential illegality, but advice of official suggests legality.  Reasonable reliance, dependant on complexity of law, situation, position of official, clarity and reasonableness of advice given

R. v. Cancoil Thermal (1986)

Inspector said it was ok to remove a piece of metal protecting workers from machinery. Actually was against safety regulations.  Defence of “Officially Induced Error”: available for a violation of a regulatory statute where accused reasonably relied on the erroneous legal opinion or advice from an official who is responsible for the administration or enforcement of the particular law.

R. v. MacLean, [1974] N.S. County Ct.

D had his license suspended. He worked at an airport where he was required to drive on the public premises during the course of his duties. He called the Ministry of Vehicles and asked a person there is he was allowed to drive at work. She said it was not necessary to have license to drive on gov’t property, but he needed the permission of his boss, which he got. Turns out there was a provision that made it mandatory for persons driving on airport property to have a license. Charged.

Issue:   can he rely on an officially induced error of law defense? (Yes).

Ratio:   the s. 19 provision can’t be applied to everything that happens to be the law. The D made the kind of inquiries expected of him, and he can’t be blamed for his inability to discover the proper regulatory provisions when even the judge had a difficult time finding them. Drew a distinction between statutes and regulation, explaining that it is harder for the average person to be aware of regulations as opposed to statutes.  Mistake of law OK if take 1) bona fide diligent efforts 2) to ascertain & abide by law, 3) resorting to appropriate sources, 4) in good faith!

INSANITY AND MENTAL DISORDER

§        There are 3 junctures where mental disorders apply in the criminal law:

1)     At sentencing: can be used in consideration of the sentence given;

2)     At the time of the offence: insanity goes to the mens rea – fault requirement – and is absent when a disease of the mind is present.

3)     At the time of trial: under the rubric of “fit to stand trial”.

§        Section 16: there are two arms to the defense.

1)     Failure to appreciate the nature and quality of the act or perceive the consequences;

2)     Failure to know that the act was wrong (legal or moral)

Burden of Proof:

Sections 16(2) and 16(3) of the Criminal Code provide that every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility and that the party who raises this issue must prove it on the balance of probabilities.

 

This was challenged for constitutionality as a violation of accused’s s.7 rights, but upheld in s.1, to “avoid placing an impossible burden of the Crown”. - Chaulk. 

MENTAL DISORDER + FAILURE TO APPRECIATE THE NATURE & QUALITY or FAILURE TO KNOW THE ACT WAS WRONG = S. 16 defense.

Section 16 Claim:

 

Presumption of Sanity

 

Balance of Probabilities

(On whoever wants to displace the burden)

Disease of the Mind

(Either of these)

           Nature & Quality            (ie.conseq)        Appreciate the Wrong (legal/moral)

Cooper v. R., [1980] SCC. ~ def. of DOM, meaning of appreciate N & Q

The accused – a psychiatric outpatient – kills a girl he was trying to score with. At trial, the accused doesn’t raise the defense of insanity; he simply pleads lack of intent. The judge considers the evidence and tells the jury that s. 16 may be available to him. Convicted of murder. Appeals on grounds that judge didn’t explain the defense well enough for the jury.

Issue: Judge err in leaving it to the jury to decide whether there was a disease of the mind? (Yes).

Ratio:

§        disease of the mind is a legal concept (has political aspects as well – ie. social control, proper role of treatment in psychiatry).

§        Judge must FIRST decide as a matter of law whether the accused’s condition qualified as a disease of the mind. – question of law

§        SECOND, then give it to the jury to decide whether the disease of the mind was present in the accused and operational in these circumstances at time of offense.

§        Disease of the Mind – embraces any illness, disorder, 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. The disease must be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act, or knowing it was wrong

§        Failure to Appreciate N & Q – requires more than mere knowledge of the physical quality of the act; need an ability to perceive the consequences, impact and result of the physical act. Eg. choking someone without appreciating death as a possible consequence.

Kjeldson v. R., [1981] SCC. ~ no s. 16  for person who just lacks remorse

§        Section 16 is not available to an accused who has the necessary understanding of the nature, character and consequences of their act, but lacks the appropriate feelings for the victim or lacks feelings of remorse or guilt for what they have done as a result of their diseased mind. (e.g. psychopathy, APD, etc)

R. v. Abbey, [1982] SCC. ~ failure to appreciate penal consequences not enough

Guy importing coke was stopped at customs, the coke was found and he fessed up. Evidence suggested that he had a DOM and was unable to appreciate the penal consequences of his actions. Knew they were legally wrong, but believed would not be punished (re MD). Trial acquitted

Issue:   does a failure to appreciate the penal consequences serve as a defense under s. 16? (No).

Ratio:   failure to appreciate the penal consequences does not go to the mens rea of the offence, and does not render a person incapable of appreciating the nature and quality of their act. If you know your act is legally wrong, you’re guilty. Nature and quality focuses on physical aspects only.

Schwartz v. R. [1977] SCC. ~ appreciate wrong not morally wrong à this is overturned

§        Wrong means contrary to law, not morally wrong. You must be able to prove that you did not know your actions were legally wrong before you can get protection under s. 16.

§        Whether you perceived the act to be morally wrong is irrelevant.

R. v. Chaulk, [1990] SCC.

§        The SCC overrules Schwartz to include morally wrong, ruling that “wrong” used in s. 16 must mean more than legally wrong.

§        ABILITY is the key – indicates fundamental problem relevant to responsibility – tests person’s reality testing function – just b/c knows legally wrong but delusionally thinks that morally right à this can still be a function of a disease of the mind

§        ARGUABLY –this is lower bar, thus widening defense. 

§        Confirmed in R. v. Oommen, [1994] SCC.  Inquiry is NOT to focus on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances.  THE QUESTIONS is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.

§        Reverse onus did violate s.7 of the Charter but was saved under s.1

R v. Swain

·        The Crown is able to introduce evidence accused was insane at time ONLY if accused calls evidence to attest to their mental state first (broadly) – could be intent, etc.  If they do not put their mental state at issue, the Crown can raise evidence of MD at end of trial (sentencing)

AUTOMATISM

Automatism Claim   Presumption of Voluntariness (Treated like s. 16: presumption of sanity; D proves otherwise) Balance of Probabilities (Once you have proven beyond a BOP, you have essentially proven you’re s. 16)   Automatism (How will it get classified? Duty for the judge only, based on holistic approach) No                                           Yes (No need to classify)        Classify                                   (Presumption is insanity: have to prove you were not  insane, i.e.: hit on head)                                                                        Insane                          Non-insane                                          (If you can’t prove it: you go here)  (If you can prove it: you go here)                                                            Disease of the mind (jury)          Acquittal (jury)

R. v. Rabey, [1980] SCC. ~ external stress and sane- automatism defence

D was given the cold shoulder by a girl whom he liked (she told him she just like him as a friend), and he responded by bashing her over the head with a rock under a stairwell and then trying to strangle her to death. Medical evidence suggested he went into a disassociative state and was unable to appreciate anything. Luckily enough, he has no DOM, and it will not likely occur again: just triggered by powerful emotional shock = NOT INSANE?

Issue: is the defense of sane automatism resulting from an external factor available? (No).

Ratio:

§        internal/external dichotomy introduced:

§        internal is something organically wrong with the accused’s mind (subjective condition/weakness, perhaps DOM);

§        external effect produced by an extreme external factor (ie. seeing loved one murdered). 

o       BUT—The normal everyday disappointments and stresses of life don’t count as external factors that explain the malfunctioning of the mind and take it out of the “disease of the mind” category. 

§        In order for psychological blow to be accepted here, would have had to have had DOM to make him susceptible to such minor things.  Not advisable!

§        Strong dissent: the defense of automatism should be available to persons who suffer external emotional stress. If there is medical opinion that suggests a dissociative state even though these is no disease that requires treatment or detention.

§        Dissent looks to recurrence of crime and danger.  Otherwise, people who are not dangerous will be incarcerated w/o prospects for treatment. 

R. v. Parks, [1992] SCC. ~ sleepwalking; non-insane automatism – automatism goes to voluntariness (actus reus)

D was having some personal problems, fell asleep on the couch, and sleepwalked his way over to his in-laws house where he bludgeoned his father-in-law and beat his mother-in-law to death. Argued non-insane automatism. Judge left only this defense with the jury. Crown asked for insanity.

Issue: is sleepwalking a disease of the mind, or is a non-insane form of automatism? If it is the latter, can the D rely on it? (Yes).

Ratio: 

§        Automatism goes to voluntariness (actus reus) not mens rea

§        Sleepwalking not a DOM here– not an “illness”, not appropriate for internal/external cause theory; not likely to recur; policy: unlikely “floodgates” will open;

§        POSSIBLE for sleepwalking to be DOM, but not here! (ARGUABLE!)  No clean test, but a combo of other tests. 

When a defense of non-insane automatism is raised, the judge must consider:

1.      JUDGE decides if there is some evidence (air of reality) that it is non-insane automatism, then it can be left to the jury

2.      JUDGE: If the foundation for the defense can be laid, they must consider whether the defense is, in law, non-insane automatism.  (consider int/ext; recurrence; policy)

3.      JURY will consider either as SANE or INSANE. 

Ø      SANE = decide if they believe BRD offense requirements are met (thus, Crown proving absence of non-insane automatism BRD). If evidence suggests reasonable doubt they were acting voluntarily à acquit

Ø      INSANE = decide whether they believe MD exists, as per s.16. 

Ø      Policy considerations: neither one gets a great result in this case; hard to categorize SW

§        Internal cause theory: suggests a condition stemming from the internal or emotional makeup up the accused, rather than some external factor such as a concussion, leading to insanity.  Sleepwalking = internal weakness; ext influence

§        Continuing danger theory: any condition that is likely to present a recurring danger to the public should be treated as insanity.  Sleepwalk killing not likely. 

§        Both are based on recurrence: recurrence suggests insanity; but the lack of it does not preclude it either.

§        Other policy considerations (ease of faking, opening the floodgates)

§        In the end, the court found that there were no compelling policy factors that preclude a finding that the accused’s condition was one of non-insane automatism.  Floodgates will not open, due to necessity of evidence, etc. 

§        DISSENT:  suggests preventative justice – even though recurrence should be nil, should be taking steps to ensure doenst recur (sleep hygiene, etc). 

§        This suggests that there is still a lingering concern that there’s something wrong with person!

R. v. Stone, [1999] SCC.

On the way to visit his sons with his new wife, the wife tells the D he has a small pecker, and that he is a most unsatisfactory screw, at which point she pays dearly for these hurtful remarks as the D unleashes 47 stabs upon her chest with a big honking knife. Judge finds no foundation for non-insanity, so charges the jury with insane automatism. Guilty of manslaughter.

Issue: was the judge correct in not putting the defense to the jury? Who has the burden of proving automatism?

Ruling: no, but the decision was left to stand anyhow: there was no miscarriage of justice. The accused. “Whoosh” is the sound of bullshit. 

Ratio: Three changes:

1) presumption that automatism = DOM;

2) reversed burden (accused has to prove on B of P – considered constitutional like in Chaulk)

3) requirement of medical evidence.  Must take a holistic approach to determining whether and what type of automatism should be left to the jury:

1.      Begin with presumption that automatism is always a DOM – going to be very rare cases where non-insane automatism so this is ok

2.      The D must make the automatism assertion and the involuntariness assertion and call evidence to prove it  - PRESUME automatism is DOM, unless factors suggest otherwise

3.      Relevant factors are not a closed category: can consider severity of triggering stimulus, corroborating family evidence, motive for the crime, medical history, etc. Also, if the crime could be explained without reference to automatism, this suggests that the automatism defence should not be put to the jury

4.      The burden is only met for non-insane automatism when the trial judge is satisfied there is air of reality à enough evidence for jury to decide acc acted involuntarily on the balance of probabilities. Examining the expert medical/psychological evidence and other evidence, if any does this.  If NOT met, will be treated as s.16 (and then see if it meets those requirements)

5.      JURY then decides on BOP’s whether person was acting involuntarily in circumstances.

INTOXICATION

Pre-Charter

R. v. Bernard, [1988] SCC. ~

D was boozing, went back to this broad’s house where he proceeded to assault and then sexually assault her. He functioning; ie. not too much evidence that super drunk. When he realized what he was doing he “got off”.

Issue: whether sexual assault should be classified as an offence of general intent or specific intent; and if general intent, can intoxication be used as a defense?

Ruling: no. 2 different opinions: Wilson J wins out. Dickson dissenting.

Ratio:

• sexual assault is a crime of basic/general intent (spec intent = desire certain consequences, or reckless):
• all that has to be proven was the intent to commit assault; the sexual nature of the crime plays no part in the intent.
• The defense of  self induced intoxication does not apply to general intent offense such as sexual assault: these crimes have a level of intention that is so basic that we will be able to find the miniscule amount of intention needed from the act itself: may infer mens rea from the act itself.
• Wilson: can’t exclude intoxication from basic intent offences entirely: if they drink themselves into a state akin to insanity or automatism then they should be covered (hints of Daviault)

Post-Charter

R. v. Daviault, [1994] SCC. ~ where akin to automatism; available for general intent crimes

D, 69, removed his handicapped friend from her wheelchair and sexually assaulted her after consuming 7-8 beers and the lion’s share of a 40-ounce bottle of brandy. He was a chronic alcoholic. Evidence suggested that his lowered susceptibility to alcohol saved him from dying of alcohol poisoning, and that he was likely in a state akin to automatism with BAC between 400 and 600 per 100 milligrams. Trial judge ordered new trial; C.A. reversed and substituted.

Issue: can extreme drunkenness akin to a s. 16 defense of automatism serve as a defense for a crime of general intent? (Yes).

Ratio: found that Leary is in violation of ss. 7 & 11(d) of the Charter, and so got on board with the “Wilson approach” in Bernard:

a)     Since the state of drunkenness is shown to be akin to automatism, the burden is on the D to prove on the BOP (w/medical evidence too); intended to be only in very narrow/rare/extreme cases!(so no floodgates)

b)     The accused will have to give evidence as to how much alcohol was consumed, and will ordinarily be required to adduce expert medical evidence to confirm that he/she was probably in a state akin to automatism.

This approach is in accord with the principles of the Charter. Leary was rejected because substituting the required mental element from the intent to get drunk is not constitutionally valid: drinking does not inevitably lead to assault. Similarly, substituting the minimal amount of voluntariness needed from the act of simply having committed the offence is unconstitutional. The presumption of innocence requires that the crown bear the burden of establishing both the Actus Reus and the Mens Rea.

àNote: some medical controversy over whether alcohol can ever reach automatist levels!

Bill C-72 CC 33.1 §     Removes the Daviault defense from most offenses of general intent – does not apply to general offences that involve bodily harm. §   Does not affect the Daviault defense for crimes of specific intent, such as murder and robbery or for general intent offences that don’t involve bodily harm §   Basically back to Bernard §   Has not been challenged under the Charter yet. §   Could argue: 33.1 flatly contradicts SCC’s view in Daviault that it is a violation of 7 and 11d to convict a person who lacks even a minimal degree of mens rea, MR being an essential element, however small in certain cases.   BUT, clearly represents views of Canadians.   Probably a s.1.   Focus on proportionality, whether convicting an accused lacking in even minimal MR is reasonable method of dealing with alcohol related violence.  Always open to P to make committing crime while drunk an offense. §   ** Definite policy question here à if so, follow Wilson’s argument about voluntariness

R. v. Robinson, [1996] SCC. ~

D was charged with 2^nd degree murder after beating a buddy about the head with a rock and then stabbing him to death. C.A. allowed an appeal on the grounds the jury was misdirected as to the defense of intoxication.

Issue: how should juries be instructed on the use they can make of the defense of intoxication?

Ruling: Beard approach must be abandoned for a new approach, set out below.

Ratio: the charge to the jury should proceed with the Canute-type charge, as follows:

1)     The judge must be satisfied that the effect of the intoxication was such that it may have impaired the D foresight of consequences sufficient to raise reasonable doubt – there has to be an air of reality to the defense;

2)     Once this has been satisfied, the judge must make it clear to the jury that the issue is whether the Crown has satisfied them beyond a reasonable doubt that THIS D had the mens rea (specific intent) upon consideration of ALL evidence, including intoxication. 

In these types of prosecutions (ie. specific intent), the evidence of intoxication usually consists of witnesses testifying as to the quantity of booze quaffed, and as to the mental state of the D.

NOTE: in some EXTREME cases, it may be appropriate to take two-step test: 1) capacity to form intent 2) whether intent was actually formed.  Need significant expert witness evidence. 

àWhere only question is whether accused intended to kill victim (229a1), while accused is entitled to rely on any evidence of intoxication to argue they lacked intent and is entitled to receive an instruction from the judge (assuming air of reality), intoxication short of incapacity will in most cases rarely raise a reasonable doubt in minds of jurors.

JUSTIFICATION AND EXCUSES

§        Different from incapacity, automatism, intoxication etc because there is no claim of negation of mens rea, or involuntariness à come in after the preconditions to liability have been met by the Crown (actus reus and mens rea)

§        S. 8(3) of the Crim Code preserves common law justifications and excuses.

§        Offences need to be knowable in advance and have a high degree of certainty because deprivation of liberty is at stake.

§        Excuses and justifications can be left to the common law because the only result of their use will be to allow a morally innocent person to go free.

§        Duress is the only one that has been partially legislated.

Necessity

R. v. Dudley and Stephens (1884)

Murder on the high seas.

Held: It is no defence to murder to save your own life. It is a higher calling to sacrifice your own life before taking someone else’s. Problem is who gets to judge these moral questions. Which criteria can you use to decide who will die? Age, family, weakest etc. To say one had no choice is not true; the choice is to die yourself (normative involuntariness)

R. v. Perka (1984)

P smuggling drugs, trying to get to Alaska, caught in a storm and forced to land on the beach on No Name Bay in BC. Charged with importing drugs into Canada, a whole bunch.

Held: Dickson decides the issue of necessity as justification or excuse:

·        Necessity is an excuse. Justification speaks to the rightfulness of the actions, excuse agrees the accused did a terrible thing, but circumstances make it unfair to attribute fault to him.

·        Policy: we need a system of positive law that dies not recognize higher callings. Otherwise, necessity would become a defence of moral obligation to break the law.

§        Have to establish that the acts were truly involuntary in the normative sense:

1)     Urgent situation must be so emergent and the peril must be so pressing that normal human instincts cry for action making compliance with the law demonstrably impossible;

2)     Was there a legal way out/legal alternative (to avoid breaking law)?

3)     Proportionality: the gap between the harm done and the benefit accrued becomes too great, the act is likely to appear voluntary and therefore excusable: utilitarian calculus, or justification aspect.

4)     If the situation was clearly foreseeable to the reasonable observer, or if the actor ought to have contemplated that his actions would likely give rise to an emergency requiring breaking the law, then it was doubtfully an emergency.

5)     Negligent or otherwise illegal action doesn’t disentitle the actor.

6)     The onus is on the crown to prove the act was voluntary when the D raises air of reality for defense

Wilson (dissent): agrees with Dickson, but will consider necessity a justification in cases where there is a conflicting legal duty. In this case the accused must bring evidence that he operated under a conflicting legal duty which made his seemingly wrongful act right (ie. as in conjoined twins case).

R. v. Morgentaler, Smoling and Scott (1985)

Charged with inducing a miscarriage and conspiracy to commit that offence. Argued necessity to preserve the woman’s life.

Held: Not necessity because it was a conscious decision to break a law which they disagreed with. One cannot conspire or plan to break the law in advance and then claim necessity. Lacks the requirement of immediacy and had a alternative legal solution. Conduct must be truly involuntary (constructive/normative).

R.v. Latimer (2001)

Put daughter with cerebral palsy in truck and killed her with fumes. Claimed necessity.

Held: No necessity. Argued that it was an emergency situation with impending surgery and continuing pain.

Shorter Test for Necessity:

1.      Must be an urgent situation of clear and imminent peril. It is not enough that the peril is foreseeable or likely, it must be on the verge of transpiring and virtually certain to occur. Where the situation of peril should have been foreseen and avoided, no necessity.

2.      Must be no reasonable legal alternative to disobeying the law.

3.      There must be proportionality between the harm inflicted and the harm avoided. Where proportionality can be quickly dismissed, the trial judge may dismiss the defence without considering the previous steps.

Steps 1 and 2 are to be a modified objective test. Objective evaluation but one that takes into account the situation and characteristics of the particular accused. Step 3 is a purely objective standard. Cannot leave it up to the individual to decide what is and is not proportionate.

§        Homicide: hard to imagine it could ever be excused on base of necessity.

§        Difficult to imagine proportionality could enable defense of necessity in case of homicide.  But, what of use of term “homicide”  à Not whether you can justify intentional killing, but any killing. 

§        SO, what about if racing to get injured friend to hospital and cause death of one bystander and seriously injure another.  Could you rely on necessity for either crim neg causing death and crim neg causing bodily harm

§        Assume fulfill first two criteria: imminent peril, no legal alternative

§        Can you defend using proportionality? 

§        Injury:  seems proportionate

§        Death: seems disproportionateàbut can we really pull these apart? 

§        Appears that the SCC was speaking of INTENTIONAL homicide, not just any homicide.  BUT, the door is open until a majority renders a decision

§        recall seriousness in legal and CL re. intentional killing à severely grave conduct

§        Note: it’s the harm they “sought” to avoid – doesn’t necessarily mean they did so successfully.

Conjoined Twins case – A (Children), Re (Siamese Twins Decision)

Jody and Mary born conjoined at the abdomen – each had their own brain but one of the girls was weaker (had she been born separately, she would not have survived. Doctor though that both girls would die within six months. Stronger girls heart could not keep up supporting the other. Doctors were also of the view that a separation was completely achievable. If doctor’s waited until an emergency situation (ie heart failure was imminent) – chances of survival would be slim

Issue: If operation was carried out, would they be breaking the criminal law?

Ratio:

§        on necessity basis – necessity not emergency – notion of emergency is under inclusive à justice Wilson analysis works better in this circumstances – classic case of conflicting duties

§        other judges – not a situation where the weaker girl is completely innocent in this case – she’s parasitic on her sister – she’s killing her sister by her weakened state – doctor’s have a right to remove the drain on her life – semi self defence

§        implications for Canadian law? à note: court really narrowed circumstances –If death was just a matter of time for both, if no action was taken.  Thus, necessity can operate in these sorts of idiosyncratic cases. 

§        two distinguishing factors from Dudley v Stevens

o       In Dudley – Court was concerned about criteria – who gets chosen to die. Here: Condition designates one twin for death.

o       Also – conjoined twin cases are subject to prior judicial authorization.  We’re not letting people make their own choices, Courts will evaluate.

• **possible policy question here

DURESS

s. 17 Criminal Code – Compulsion by threats: must have an immediate threat by a person who is present (at the commission of the offence) to be excused from the offence. This section does not apply to crimes listed, which involved bodily harm to another person eg. murder, attempted murder, sexual assault, hostage taking, robbery etc.

Duress is a mens rea defence – it operates to vitiate the intention to commit the offence.

Am I a party or principle (whether excluded from s.17) – Paquette – s.17 only applies to those that are principals.  This is the FIRST question to ask, in line with the present law.

1. Yes
1. Common law duress (no s.17)
2. No.  s.17 excluded offense?
1. Yes – no defense
2. No – either s.17 OR Common Law – Ruzic

R. v. Carker (No. 2), [1967] SCC.

R damaged his plumbing in his cell inside the joint. It happened during a riot, and the guys around him in their cells threatened to stab him if he didn’t get involved and break his plumbing as well. He claimed defense of necessity.

Issue:   Can the D on the defense of duress? (No)

Ratio:   they were not threats of immediate death or immediate grievous bodily harm as none of the persons delivering the threats were in the cell with the D when the threats were made. They were all locked inside their own cells. There was also no presence. Thus, had legal alternative to seek protection from authorities. The guys in Carker were locked up.

à immediacy requirements of Carker were overturned by Ruzic (s. 17 struck down except for the exceptions – left with CL defence)

R. v. Paquette, [1977] SCC.

D participated in a robbery in which the co-accused shot and killed a by-stander. He made a statement to the cops that the co-accused threatened him at gunpoint to drive him to the store to be robbed. He was also threatened with revenge if he didn’t wait for them. eHe HHe drove around the block, and then wouldn’t let them back in.

Issue:   can the D rely on the defense of duress under s. 17 of the CC? (yes)

Ratio:   section 17, which excludes offences such as murder and rape from the application of the necessity defense, only applies to persons who have committed the offence. The D did not commit either the robbery or the murder, so he could rely on CL defense of necessity. “If the defense of duress can be available to a person who aided and abetted in the commission of a murder, then clearly it should be available to a person who is forced to be made a party to the offence under s. 21(2) [party to a crime provision. Duress vitiates common intention.

R. v. Hibbert, [1995] SCC.

Hibbert charged with attempted murder. Owed money to a guy named Dogheart. Found him on the street one day and forced Hibbert to take Dogheart to another guys house that Dogheart was hunting down. Hibbert gets his friend to come down to the lobby of the building, and Dogheart shoots him in the ass. Acted under the threat of being shot himself.

Issue:   Is duress an excuse or does it negate mens rea? (Excuse)

Ratio:   the common law defense of duress is not based on the idea that coercion negates mens rea. Rather, it is one of a number of defenses that operate as an EXCUSE for what would otherwise be criminal conduct. Only negate mens rea in EXCEPTIONAL circumstances.   THUS, changes Paquette à can’t vitiate common intent! (Only part of Paquette left is WHO gets to claim CL defense à parties as opposed to principles).

Need base of normative involuntariness for CL defense (though does not need imminent threat, presence).  The safe avenue of escape essentially operated like the 2^nd requirement of the Latimer test for necessity: no legal way out. If there was a safe avenue of escape, the decision to commit the offence was a voluntary one and fails.

The test is a modified objective one: “The question of whether a ‘safe avenue of escape’ was open to the accused who pleads duress should be assessed on an objective basis, [taking] into account the particular circumstances and human frailties of the accused.” Their perceptions of the surrounding facts are highly relevant in determining if their conduct was reasonable.

R. v. Ruzic, [2001] SCC.

D was forced by a stranger to carry heroin from Belgrade to T.O. under the threat that her mother would be harmed if she didn’t. She was charged and sought protection under. S. 17, and although she conceded that she didn’t meet the temporal aspects of the defense (immediacy and presence), she challenged the constitutionality of the defense under s. 7. Won. Crown appealed.

Issue:   does s. 17 offend s. 7 of the Charter? Should moral involuntariness be a principle of fundamental justice? (Yes, yes).

Ratio:   duress is an excuse, it does not negate the actus reus, however, it is still relevant to the context of s. 7 even after the act has been shown to be voluntary. She retained conscious control over her bodily movements, but her conduct was not, in a realistic way, voluntary.  Underwritten by normative involuntariness, as per necessity.

-        Depriving a person of liberty and branding her with the stigma of criminal liability infringes s. 7 of the Charter when she didn’t have a realistic choice (normative involuntariness).

-        Section 17 includes threats to third parties. 

-        Section 17 violates s. 7 .because it allows persons who committed an act involuntarily to be declared criminally liable.

-        “s.17’s reliance on proximity as opposed to reasonable options as the measure of moral choice is problematic. It would be contrary to the principles of fundamental justice to punish an accused who is psychologically tortures to the point of seeing no reasonable alternative and cannot rely on the authorities for help.

Summary

Necessity

1.      Imminent threat or peril – modified objective standard

2.      No legal alternative – modified objective standard

3.      Proportionality – purely objective standard

Duress

1.      Threat of death or harm - modified objective standard

2.      No safe avenue of escape - modified objective standard

3.      Proportionality- modified objective standard

-        before either of the defenses can get left with the jury – has to be an air of reality to each prong

-        defense gets left with the jury – Crown has burden of proof to disprove

Self-Defence

s. 34(1) & (2) – if quoting a case for how to choose which one – Pawliuk – Trotter says that this is the clearest statement on what is important

·        s. 34(1) - for all other offences than murder “no more than necessary to defend yourself” - honest and reasonable (objective test)

·        s. 34(2) - available to all accused charged with murder whether or not they intended to cause bodily harm - “reasonably apprehend life in real danger”

·        Determining which section you get is not dependant on whether person dies, or what intention was, but KEY is nature of the threat apprehended

·        Judge in Pintar suggested that the problem concerning jury confusion with self-defence is that there are too many provisions that the judge has to give them – suggests instead that the judge should determine which provision should be left with the jury

·        Trotter argues that this is the wrong approach à b/c it is largely a question of fact to be determined whether there was a reasonable apprehension of harm and this is what determines which section you get (ie. s 34(1) or (2))

R. v. Pintar, [1996] Ont. C.A.

D was threatened by the deceased – he had broken up his marriage. The dead guy broke into his house one fine day, and the deceased said he was going to finish him, taking a swing. The D got his rifle and went outside to confront. The dead guy and a buddy approached him, and were told to back off. A struggle ensued – both guys were shot dead. Appealed that the judge charged the jury in an overly complex manner.

Issue:   which provision should have been put to the jury, 34(1) or 34(2)? (34.2)

Ratio:   the narrower provision must not be put to the jury where there is an air of reality in the evidence for a wider provision. S. 34(2) and not 34(1) should be put in all murder cases whether or not the accused intended to kill or cause grievous bodily harm.

            à don’t have to intend to kill to get benefit of 34(2). 

àconsider evidence, carefully determine essence of claim.  If no air of reality acting under reasonable apprehension, don’t put forward.

R. v. Cadwallader, [1966] Sask. Q.B.

14-year old boy was the subject of emotional abuse and chronic threats of murder by his strange-ass father. The father was mad one day, and said he was going to kill him, where he proceeded to load his gun and mount the stairs. The boy panicked and shot him as he lowered his gun at him – he shot him 4 more times – once at close range. Found guilty because he used too much force.

Issue:   was there too much force used? (No).

Ratio:   “if one believes he is in danger of life or limb he is entitled to use such force as would effectually take his assailant out of action.”

“The test as to the extent of justification is whether the D used more force than he on reasonable grounds believed necessary.” So, because the test was subjective, the court ruled that he used sufficient force as he reasonably thought necessary under the circumstances – he was only 14 years old!

            à not objective test! made on accused’s mind of the time.  modified objective. 

            àEvidence that a) facts amount to self defense b) mode of defense used was justifiable. 

R. v. Bogue, [1976] Ont. C.A.

Accused in a rented apartment with the victim; they were fighting; he severely beat her; she hit him back with an iron; he came at her with a knife threatening to kill her but had blood in his eyes; so she stabbed him to death. Convicted of manslaughter. Appealed on the grounds the charge was faulty.

Issue:   did the trial judge properly charge the jury with respect to s. 34(2)? (No.)

Ratio:   in the charge the judge wrongfully imported an additional requirement to the defense: that the force must be proportionate to the original assault by the deceased – essentially stringing 34(1) and 34(2)(b) together. (34(2)(b) is supposed to be more accommodating for the accused) This is not the law. The focus is on the reasonableness of the accused’s belief, not the reasonableness of force: “The state of mind of the accused at the time when the force is applied has to be considered, and not merely the type of weapon and the severity of the blow.”

R. v. Deegan, [1979] Alta. C.A.

§        The Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defense is to be made out.

§        You don’t have to retreat before you are justified in using force to defend yourself: you may stand your ground.

R. v. Lavellee, [1990] SCC.

D was a battered woman in a crappy relationship. She shot her common-law hubby in the back of the head as he left her room because he threatened to kill her after their guests left! She recalled all of her previous beating and was scared. Medical evidence said she was scared of death and had to react with violence: acquitted at trial; successful appeal at C.A.

Issue:   is the defense available if the threat is not immediate? Was it really self-defense: he was walking away from her! (Yes. Acquittal restored.)

Ratio:   the shrink’s evidence was permitted. The D is allowed the defense if they repel an assault “under the reasonable apprehension of death of grievous bodily harm.” The evidence of battered-woman syndrome can be used by the jury to help determine whether the belief was reasonable. The issue is not whether an outsider would have reasonably perceived but what the accused reasonably perceived, given their situation and their experience. Imminence is not relevant here any longer. Battered woman syndrome not a defense itself, but speaks to reasonable apprehension of death. 

R. v. Petel, [1994] SCC.

D killed her daughter’s boyfriend and his companion, who had been running a drug operation out of her house, and generally being a bad common-law partner; beatings etc. Many threats were made on the life of the D and her daughter. He gave her a revolver to hide. She then snorted some coke, and started shooting the guys. The jury came back and asked a question as to the determination of self-defense, and the judge said the threats have to have occurred on the night in question, but the earlier allegations were relevant.

Issue:   was the question answered adequately as to give the jury the 411 on self-defense? (No).

Ratio:   where a person dies there are 3 elements to self-defense:

1)     An unlawful assault;

2)     A reasonable apprehension of a risk of death or grievous bodily harm; and

3)     A reasonable belief that it is not possible to prevent oneself from harm except by killing the adversary.

§        The jury must determine how the accused perceived the relevant facts and circumstances.

§        An honest but reasonable mistake is acceptable.

§        The jury must ask itself, “did the accused reasonably believe, in the circumstances that she was being unlawfully assaulted,” not whether they were actually assaulted.

§        imminence only one of the factors to be considered when determining a reasonable apprehension of harm à must consider earlier threats/assaults as well in determining whether reasonable apprehension of danger existed. 

R. v. Malott, [1998] SCC.

battered woman D for 20 years. Kills her husband with a gun, then gets in a taxi and goes to his girlfriend’s house and shoots her and stabs her.

Issue:   was this a proper case for the application of Lavellee? (No).

Ratio:   when applying Lavellee, we aren’t diagnosing women with Battered Woman Syndrome (have to be careful not to medicalize this situation – not a medical condition but the recognition of a reality); this is not a legal defense in itself. If you can’t get some evidence to say that you had this thing, you don’t automatically get taken out of 34(2), you can still get it. You don’t automatically get into section 34(2) if you have the syndrome…have to look to experience overall.  killing the girlfriend was definitely fatal here.

**possible policy question about analogousness of prisoner that makes a preemptive strike in prison and a battered woman

Provocation – partial defence to murder

§        This is not a full defense: reduces murder to manslaughter.

§        DO NOT USE THIS DEFENSE FOR ANYTHING BUT MURDER (2)

Can be used both to reduce murder AND to reduce sentencing (Stone)

Controversial:  by definition, intent to murder is there, but we extend concession due to appreciation of human frailties.  Still, have certain requirements to temper.

Does this privilege anger? Why not privilege compassion (euthanasia/mercy killing; Tutton) 

                      

R. v. Cameron, [1992] Ont. C.A.

Cameron and his g/f in abusive relationship; she used to “nag him” (apparently); went to dinner party, she nagged him, he hit her; argued on way home; argued, made up; she made a reference to his behavior that night, he strangled her; convicted of 2^nd degree murder. He appealed arguing that the defense of provocation in 232 contravenes ss. 7 and 11(d) of the Charter because the test is premised in part on an objective standard.

Issue:   does the defense infringe the Charter? (No).

Ratio:   the defense of provocation operates outside of the mens rea component. The murder has already been established by this point, and provocation only comes into play after the Crown has proved intent. 

R. v. Hill, [1985] SCC.

A 16-year old boy, was forcefully advanced upon by his ‘Big Brother’ as he slept on his couch. The deceased followed him the bathroom, where the D grabbed a hatchet and struck him in the head, knocking him out. He left, then returned to find an angry man who said he would “kill him”. He grabbed 2 knives and stabbed him to death. Claimed provocation.

Issue:   should the objective portion of the test “ordinary person” consider the age, sex, and race of the D? (Yes).

Ratio:   Dickson breaks the defense down into 3 elements:

1)     Would an ordinary person be deprived of self-control by the act or insult? OBJECTIVE standard of fault: include age, sex, race of the D as well as the history of the accused under the circumstances. (from Thibert) – immutable characteristics

2)     Did the D in fact act in response to those provocative acts? Question of fact. An ordinary person would have been really pissed off; but were you? SUBJECTIVE standard of fault.

3)     Was the D’s response sudden and before there was time for their passion to cool? Was it reflexive and sudden response? SUBJECTIVE standard

Rules that we should take stuff like age, sex and race (stuff that isn’t particularly idiosyncratic) into account in the 1^st step, but we should leave other factors (e.g. sexual orientation) to the good sense of the jury to figure out. Trotter thinks this isn’t enough – if it’s objective with these special factors, don’t you think we should let the jury in on these special factors

àR v. Camplin – from Hill:  ordinary person of same age, sex as accused. 

R. v. Thibert, [1996] SCC.

D killed his wife’s lover. He had attempted to talk to her when the guy came out and interrupted, bringing her back into his office. The D got pissed, grabbed his rifle, and pointed it at the guy. The dead guy taunted him and basically called his bluff. Judge got the burden of proof mixed up: once there is an air of reality established, the Crown has to disprove the presence of provocation beyond a reasonable doubt. Jury was left with the impression that Thibert had to make out the defense beyond a reasonable doubt.

Issue: was there enough evidence for the jury to find provocation? (Yes).

Ratio: wants us to take the ordinary person plus historical aspects of person etc., thus reducing the test right down to a subjective test: “The ordinary person must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.”

            àwaters down objective standard : a reasonable Thibert!?

àGreat expansion of immutable characteristics – takes lived experience into account.  Happened in context of spousal relationship.  Is it fair that legal conduct of person in dissolution of relationship could qualify?

àSeems planned here!!!

àHill was good to make it humane, but arguably goes too far here. Only 5 judge case, and left law in unfavorable state. – Trotter thinks this was wrong

R. v. Nealy, [1986] Ont. C.A.

D had done some serious dope, then went out to bar with his girlfriend. There he ran into a guy who said he was going to sleep with his girlfriend and that she had nice tits. D said he was also afraid of the guy, and stabbed him to death during a fistfight outside of the bar. The judge compartmentalized the issues of provocation, intoxication, self-defense.

Issue:   was the charge to the jury sufficient? (No).

Ratio:   take into account failed defenses that didn’t quite cut mustard as a defense alone, like, yeah, he was kind of drunk, but that wasn’t enough to give him the intoxication defense. His provocation defense doesn’t get off the ground in the first step. Obligation on the judge to tell the jury to consider all of the defenses cumulatively. Not a formal defense, just another piece of the mix when figuring out is 232 fits in to the case. ROLLED UP CHARGE

            à everything is relevant under 232 A!

            à even if all defenses are rejected, may be relevant to subjective element of intent

à to make sure intent for murder is still there, can look to cumulative effect of failed defenses.

PARTIES TO AN OFFENCE

-        21(1)

o       you are a party to the offence if you commit

o       if you do anything for the purpose of aiding the offence

o       of if you abet or encourage someone in committing the offence

o       What do you have to do and what is the intent requirement?

-        21(2) - different

o       talks about joint enterprise – decide to act in concert to carry out an unlawful purpose – two people decide to commit a crime together and one of them commits another offence

o       by virtue of the plan to commit

Dunlop and Sylvester v. R. (1979, SCC)

Facts: gang rape of a girl by a motorcycle gang; victim said that these two raped her; trial judge left open the possibility of being parties as well as the possibility of being convicted

gets left to the jury on three basis

o       21(2) – just wrong

o       21(1) – can you unwittingly assist someone in committing an offence and be convicted à no – the section requires some cognizable act and an element of intent

-        mere presence is not enough

-        need encouragement, and act that facilitates the act à some time of active involvement

-        can mere presence be seen as encouragement? – a group of people in a circle may well by there presence be encouraging the committing of the offence

-        intent

o       must be proved that an intention to encourage and an encouragement in fact

-        presence can be evidence of aiding and abetting if accompanied by other factors

-        while we talk about acts and omission in a pure actus reus sense à omission isn’t going to work in 21(1) – don’t have a positive obligation to prevent – don’t recognize omission liability

R v. Logan (1990, SCC) à 21(2)

Accused were convicted of attempted murder; during a robbery a person got shot; neither accused did the shooting; Johnson was one of the robbers and Logan planned the robbery; trial judge instructed the jury that they could convict under s. 21(2) if the Crown proved beyond a reasonable doubt that they knew or ought to have known that someone would probably shoot with the intention of killing

Issue: appellant is challenging the constitutionality of s. 21(2) in general and in particular the objective component (ie. “ought to have known”)

-        *make note in section à who “new or ought to have  known” that the offence was likely to have happened, guilty of the offence

-        *R v. Simpson – s. 21(2) only talks about liability for the other offence – what else are you liable for? à liability for the initial offence still there under 21(1)

-        In Paquette – jury said yes

-        Logan – in the context of murder is there a problem in this section?

-        Problem – “ought to have known” – suggests objective liability

-        This case – puts the offence of attempted murder on the same footing murder à b/c on the same level of moral blameworthiness

-        Same sort of moral blameworthiness that kills but you just weren’t able to succeed

-        You will do more time if  you’re convicted of attempted murder (8-12 years) than you would for manslaughter

-        Can’t be a party when talking about murder or attempted murder – in this context the words “ought to have known” does not apply when murder or attempted murder