LAW 420 CRIMINAL LAW PRINGLE Table of Contents LESSON 1: INTRODUCTION AND CRIMINAL PROCEDURE ................................... 2 LESSON 2: EVIDENC...
Author: Rudolf Bishop
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Table of Contents LESSON 1: INTRODUCTION AND CRIMINAL PROCEDURE ................................... 2 LESSON 2: EVIDENCE AND THE CHARTER .............................................................. 3 LESSON 3: ONUS OF PROOF IN CRIMINAL CASES .................................................. 4 LESSON 4: ACTUS REUS ................................................................................................ 5 LESSON 5: MENS REA .................................................................................................... 6 LESSON 6: PENAL NEGLIGENCE ................................................................................. 8 LESSON 7: REGULATORY OFFENCES ........................................................................ 9 LESSON 8: MURDER ..................................................................................................... 10 LESSON 9: ASSAULT .................................................................................................... 11 LESSON 10: SEXUAL ASSAULT.................................................................................. 13 LESSON 11: INSANITY AND AUTOMATISM ............................................................ 15 LESSON 12: INTOXICATION ....................................................................................... 17 LESSON 13: NECESSITY ............................................................................................... 17 LESSON 14: DURESS ..................................................................................................... 18 LESSON 15: PROVOCATION ........................................................................................ 19 LESSON 16: MISTAKE OF LAW .................................................................................. 20 LESSON 17: SELF-DEFENCE ........................................................................................ 21 LESSON 18: PARTIES .................................................................................................... 22

LESSON 1: INTRODUCTION AND CRIMINAL PROCEDURE Criminal Procedure Laying of an information (the charge) – a statement sworn usu. by police, or (only if direct indictment) an indictment (not sworn).  Dual procedure or hybrid offences - election of the Crown b/w s.c. and indictable procedure.  Summary conviction offences go to prov‟l court.  Special indictables: Absolute jurisdiction (prov‟l court) and exclusive jurisdiction (QB).  Indictables (all other) – Accused chooses b/w prov‟l judge, QB judge, QB judge and jury. Prelim. (QB only) – Crown establishes case to pass Shepherd test. Defense can request directed verdict. [complaint/investigation, apprehension and arrest, release from custody pending trial, first appearance, preliminary inquiry, indictment, juries, trial.] There must be full disclosure from the Crown to the defense. voir dire, change of venue, severance of counts, Charter rights, Judge and Jury  Judge is trier of law, jury trier of fact.

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Air of Reality Test for defenses applied by judge – voir dire. Choice of jury – random from voters list (usu.). Peremptory challenges and can apply for „challenge for cause‟ – questions asked with last two jurors chosen deciding impartiality of answers. Can‟t add jurors after trial starts, must have at least ten to finish trial. Jury does not have to justify decision – key concern in electing whether to go jury. Jury‟s questions in deliberation „fertile ground for appeals.‟

LESSON 2: EVIDENCE AND THE CHARTER The Canadian justice system will sometimes sacrifice truth and punishment for other goals: protecting everyone‟s rights. The Morissette Test With evidence found via Charter breach: (a) does it affect fairness of the trial? (i) if conscriptive and would not have been found by other, non-conscriptive means, evidence disallowed (ii) if conscriptive, but Crown proves discoverability – that it would have been found by other non-conscriptive means, then proceed to (b) (iii) if non-conscriptive, go to (b) (b) seriousness of infringement – was it a willful and flagrant infringement of Charter right? Could it be justified by emergency or pressing concern? (c) Would it bring the administration of justice into disrepute? Will involve balancing (b) against seriousness of offence, i.e. probability of allowance of evidence proportional to seriousness of offence. Note re s. 7 of Charter: right to silence applies only if statements elicited and made to agents/officers of the State. Collins v. The Queen  When is s. 24(2) used to remedy breach of a Charter right?  Once an accused has proved a breach of a Charter right and a nexus between the breach and evidence gathered, he may apply to the court for a remedy under s. 24(2).  Woman was „scrogged‟ and found to have heroin. Crown forgot to establish at trial what police justification was for scrogging. Section 8: If a search is warrantless, it is presumed to be unreasonable. R. v. Burlingham  What evidence will be disallowed under s. 24(2) once a breach and nexus are proved?  Conscriptive and derivative evidence will be disallowed under s. 24(2).

Killed woman and threw body, gun in river. No proper right to counsel, confessed. He told them where to find the murder weapon. Section 10(b): no continued questioning after an assertion of right to counsel, no offers of plea bargains without the defense lawyer present. R. v. Feeney Another worked example of 24(2). Police entered trailer at night, without warrant, questioned man – ss. 8, 10(b) violated.

LESSON 3: ONUS OF PROOF IN CRIMINAL CASES The golden thread running through English criminal law is that the Crown must prove both the actus reus and mens rea beyond a reasonable doubt. There are some reverse onuses in the Criminal Code, though some have been struck down by the Charter. R. v. Woolmington  What is the onus of proof in a criminal case?  The Crown must prove both the actus reus and the mens rea of a crime beyond a reasonable doubt.  Man planned suicide, went to estranged wife‟s house, the gun accidentally went off. Jury charge seemed to shift the burden of proof re: mens rea to accused once the actus reus was proven. R. v. Lifchus  What is the meaning of „reasonable doubt‟?  The judge should not charge that „reasonable doubt‟ is to be understood in its ordinary, everyday sense. Used to be „proof to a moral certainty‟. The Oakes Test 1: pressing and substantial concern. 2.a.: means rationally connected to the problem. 2.b.: minimal impairment of right in question. 2.c. requires proportionality between the impairment, objective. R. v. Laba  Does a reverse onus of proof violate the Charter?  Any time the Crown can prove an offence with proving each element beyond a reasonable doubt, there is a violation of s. 11(d) of the Charter, then go to s. 1.  Possession of mined precious minerals – reverse onus to prove not at fault on a balance of probabilities. Read down to raising a reasonable doubt.

LESSON 4: ACTUS REUS The actus reus must always be proved beyond a reasonable doubt. The small mental component to the actus reus is that the act be conscious and voluntary. Inchoate crimes, such as attempted robbery, are mostly mens rea crimes but do require proof of acts going „beyond mere preparation.‟ Omissions are not generally criminal. R. v. Dunlop  Does an omission to act constitute a criminal offence?  The actus reus (in Canada) must be an act, not an omission to act.  Accused was aware of a rape taking place in his presence, did nothing to stop it. R. v. Wolfe  Is hitting someone by reflex an assault?  A reflex action, not directed by the conscious mind, is not a voluntary act for the purposes of actus reus.  Man ordered to stay out of hotel, came in anyway. Punched owner who was phoning police. Owner hits the man with the phone – this referred to by trial judge as a „reflex action.‟ R. v. Winning  How does causation affect proof of the actus reus?  When the Criminal Code specifies a result, proof of the actus reus requires proof of causation both by (i) the but for test, (ii) legal causation/outside the de minimis range.  Woman lied on credit application. Stored granted her credit without using the false information on her application. No causation, appeal allowed. Smithers v. The Queen  What is legal causation?  Proof of the actus reus requires that the act be a contributing cause to the result beyond the de minimis range.  Boys fight after a hockey game. One dies of aspiration after a kick to the stomach. Manslaughter: actus reus: culpable homicide by means of unlawful act or criminal negligence. R. v. Blaue  Does refusal of treatment break the chain of causation?  A victim is taken as found, and this does not affect causation.  Man stabs girl who is a JW. She refuses blood and dies. The physical cause of death was the stab wound. There was no broken chain of causation although the girl could have averted the death. R. v. Smith  Does poor treatment of an injury break the chain of causation?

English decision: the chain of causation is broken if at the time of death the wound is no longer an operating cause of death.  Barracks brawl, stab in the back piercing a lung. Very bad treatment due to transport and the facility. He would likely have lived with proper treatment. CC ss. 224-6 provide that the chain of causation is not broken (i) though the death might have been prevented by proper means, (ii) if the immediate cause of death is improper treatment in good faith, (iii) where the injury only accelerates the death by some other cause. R. v. Nette  What is the appropriate standard of causation for murder?  An act must be a „more than trivial‟ or „not insignificant‟ cause to be a sufficient cause of death for second degree murder. First degree murder requires a substantial cause.  Old widow bound and gagged during robbery, died of asphyxiation. Accused claimed b+e, found her like that. Convicted of second degree murder. R. v. Kubassek  Does the principle de minimis non curat lex apply to Canadian criminal law?  Still uncertain whether de minimis applies to Canadian criminal law. SCC has discussed, not decided whether de minimis can apply criminally.  Woman goes to Metro Church to protest gay marriage, shoves the pastor who almost falls.

LESSON 5: MENS REA Simultaneity required for actus reus and mens rea: English case where man drove car on to policeman‟s car by accident, but purposely left it there. The mens rea „ladder‟ describes various degrees of culpability. Motive is not strictly a part of mens rea, but it may be included by Parliament as a component of a crime - a crime of specific intent requires the actus reus be coupled to an intent or purpose going beyond mere performance of the act. Mens rea ladder: (Subjective)  Planning and deliberation  Intent, desire or knowing with substantial certainty  Willful blindness: A failure to inquire when the accused knew there was reason to do so.  Recklessness: Actual knowledge of danger or risk and persistence in course of action. (Objective)  Criminal negligence: the marked departure from the ordinary standard of conduct

Simple negligence? No ruling yet on whether criminal offences may constitutionally have a mens rea of negligence.

R. v. Lewis  What is the significance of motive in Canadian criminal law?  Motive is significant evidence, but is not an essential part of mens rea. A proved absence of motive is usually worthy of note in a jury charge.  Kettle bomb - appeal from conviction for murder. Motive not proved or raised at trial, not mentioned in jury charge. R. v. Mathe  What is the significance of intent in Canadian criminal law?  Intent is an essential element of the mens rea of an offence.  Bank robbery where drunk man explains part-way through he was „only joking.‟ To convict for the attempt requires the intent to procure the criminal consequence. „Only joking‟ defense worked. Hebert v. The Queen  What is the significance of intent for a specific intent offence?  Intent is an essential element of the mens rea of an offence. Specific intent refers to an intent to produce a specific consequence, rather than just intentional conduct.  Accused lied badly „to attract the judge‟s attention,‟ get protection from threats. Intent was not considered at trial, re-trial ordered. R. v. Buzzanga  What is the meaning of „willful‟ in the Criminal Code?  Willful includes intending, „knowing with substantial certainty‟ or desire, and so willful blindness. It may also include recklessness – the code varies.  Anti-franco pamphlets distributed by pro-franco writers, trying to „start a ruckus.‟ Specific Intent: PR – policy decides whether an offence is specific or general intent, despite academics. Inclusion of recklessness in mens rea usually means general intent. R. v. Blondin (BCCA)  What is the mens rea for importing a narcotic?  The mens rea for importing a narcotic is satisfied by intent, willful blindness or recklessness.  Cannabis resin imported from Japan in scuba tanks. Man claimed he did not know what was in the tanks. Crown appealing an acquittal. R. v. Sandhu (ONCA)  Does recklessness satisfy the mens rea requirement for importation of a narcotic?  Importation requires knowledge, either actual or imputed (i.e. willful blindness). Recklessness is not sufficient.  Man found at Pearson with heroin in his wallet and suitcase. Defence appealing he may have been convicted on recklessness.

So there is dispute as to the required mens rea for importation of a narcotic. R. v. Vinokurov  What is the meaning of „knowingly‟ in the Criminal Code?  „Knowingly‟ in the CCC requires intent or willful blindness and rules out recklessness and objective standards.  Pawn shop owner buys bag o‟ watches from man on parole, assiduously completes paperwork, charged with possession of stolen property. R. v. Lagace  What is willful blindness?  To have suspicions and refrain from inquiry is to be willfully blind. Making any inquiry is insufficient to satisfy willful blindness if the accused remains suspicious and refrains from further inquiry.  Cars stolen in QC, re-vinned using numbers from US wrecks, sold in Welland by accused. QC police had warned accused that cars were stolen, he checked this out by asking the man selling him the cars.

LESSON 6: PENAL NEGLIGENCE The fault requirement must be commensurate with the gravity and sentence of the crime. R. v. Hundal  What is the mens rea for dangerous driving?  Dangerous driving, like criminal negligence has an objective mens rea standard requiring a „marked departure‟ from the ordinary standard of conduct.  Overloaded dump truck runs a red light, according to many witnesses, and kills a man. Modified objective test: majority decision. McLachlin said it is purely objective. R. v. Creighton  What is the appropriate test for an objective standard of fault in Canadian criminal law?  Personal characteristics are not relevant to objective mens rea, except in establishing „incapacity to appreciate the risk.‟ It is a purely objective test. Most subjective information would go to volition.  Accused appealing manslaughter conviction to SCC. No connection to facts in our excerpt.

LESSON 7: REGULATORY OFFENCES N.B. First, spot that it is not a criminal offence, then assume strict liability but read the provisions of the Act for information indicating otherwise, i.e. a move up to mens rea or down to absolute liability. Strict liability: the Crown must prove the actus reus beyond a reasonable doubt. The onus is then on the accused to prove on a balance of probabilities that they acted reasonably or showed due diligence. Strict liability for regulatory offences is constitutional because these offences have a lesser degree of culpability than „true crimes.‟ Absolute liability requires only proof of the actus reus, after which there is no defence. The defence of mistake of fact requires for: penal negligence – raise a reasonable doubt that the actions/mistake were reasonable, strict liability – prove on a balance of probabilities that the actions were reasonable. Reference re s. 94(2) of the Motor Vehicle Act, B.C.  Does absolute liability combined with potential imprisonment violate s.7 of the Charter?  Section 7‟s guarantee to liberty means that absolute liability offences shall not be punished by imprisonment.  BC Act created an absolute liability offence for driving without a license, with potential penalty of imprisonment. Not saved by s. 1. Levis (City) v. Tetreault  How does one determine the fault requirement of a regulatory offence?  Regulatory offences and any offence in provincial legislation are presumed to be strict liability offences. The language of the provision or of neighbouring provisions may also disclose the fault requirement for a regulatory offence. Absolute liability only with clear legislative intent.  Regie forgets man‟s apartment number, he doesn‟t receive registration renewal notice. Driving without registration, and license expired. R. v. London Excavators  What is strict liability?  Once the actus reus is proven, an accused must prove on a balance of probabilities their actions were reasonable to defend against a strict liability offence.  Sub-contractor took out concrete with a backhoe, set off explosion. Had trusted contractor‟s assistant supervisor that it was safe. Sub-contractor convicted of Occ. H+S offence, pleaded reasonable mistake of fact. Court held he should have doubted the contractor once the concrete was found as the contractor said it wouldn‟t be there.

LESSON 8: MURDER Second degree murder is the actus reus of culpable homicide coupled with a specific intent to kill, or 229(a)(ii). First degree murder is murder with statutorily defined (CC s. 231) aggravating circumstances. R. v. Vaillancourt  Is s. 213(d) of the CC, operating in conjunction with s. 21, inconsistent with ss. 7 or 11(d) of the Charter?  Section 213(d) allows for conviction for murder when there is no objective foreseeability of death. This does not meet the constitutional minimum mens rea for the stigmatic offence of murder.  Man brought a knife to a robbery, his accomplice brought a gun. He thought he‟d taken the accomplice‟s bullets. During the robbery, the accomplice shot a man dead. Accused convicted of second degree murder. R. v. Martineau  Does s. 213 (a) of the CC satisfy the constitutional minimum mens rea for the stigmatic crime of murder?  Murder is a stigmatic crime and so the Constitution requires for it a mens rea of at least subjective foresight of death.  Two teenagers break and enter couple‟s mobile home/trailer. Accomplice of accused shoots them dead because they saw his face. Accused had only a pellet gun, was masked. Accused convicted of second degree murder on 213(a). R. v. Ancio  What is the mens rea for attempted murder?  The mens rea for attempted murder is the specific intent to kill, i.e. s. 212(a)(i). Since the „completed offence‟ of murder requires a death, an attempt must include the intent to kill. One cannot intend to commit one of the unintentional forms of murder.  Estranged husband went to house of wife‟s boyfriend, brought loaded sawed off shotgun. He broke in, and when confronted by boyfriend, shot at him. His stated intent was to force his wife to leave with him. In the jury charge, the trial judge mentioned s. 213 (d) of the CC to the jury. R. v. Logan  Does s. 21(2) of the CC infringe s. 7 of the Charter?  Section 21(2) will be unconstitutional where it allows for conviction of a party on lower than constitutionally minimal mens rea. The objective component of s. 21(2) of the CC is inoperative with respect to offences constitutionally required to have subjective mens rea, such as attempted murder.  Group of men committed armed robbery, one of them shot the store clerk in the neck. At trial, all the men were convicted of attempted murder through CC s. 21(2).

R. v. Nygaard and Schimmens  Is the element of planning and deliberation required by s. 214(2) incompatible with the requisite mens rea for s. 212(a)(ii)?  Planning and deliberation as required for first degree murder may apply to s. 212(a)(i) or (ii). That is, an accused may plan and deliberate to cause bodily harm knowing death is likely or being reckless as to whether death ensues or not.  Meeks bought stereo with cheque signed by Tikk and Hammond. The cheque bounced. Coming to collect cash, the accused beat Hammond to death with baseball bat blows to the head. Accused convicted at trial of first degree murder. Planning and deliberation: must be proved by the Crown beyond a reasonable doubt. The plan may be quite simple but must be made before the act. Deliberation requires that the act not be impulsive. R. v. Wallen  What effect does intoxication have on the mens rea for murder?  Intoxication is a defense to specific intent offences, such as murder. Sufficient intoxication could render an accused incapable of forming the intent to kill, as required for second degree murder. A lesser degree of intoxication could negate planning and deliberation, as required for first degree murder, without negating intent generally. It is desirable but not necessary that a jury charge include this differentiation. A „hostile animus‟ is not necessarily planning and deliberation.  Man‟s marriage broke up, he began drinking heavily. Othello syndrome. Took atavan, booze, marijuana, more booze, went for shotgun. Stormed into lawyer‟s office.

LESSON 9: ASSAULT The definition of assault is key to all types of assault in the Criminal Code. There are three definitions of assault at s. 265(1): (a) applies force intentionally and without consent (b) attempts or threatens to apply force, or causes the other person to reasonably believe he has the ability to effect his purpose (c) (not so important) while openly wearing a weapon or imitation accosts, impedes or begs. So lack of consent is an element of the offence to be proved by the Crown beyond a reasonable doubt. At s. 265(3) there are four enumerated conditions that vitiate consent: (a) an application of force to the complainant or another person (b) threats or fear of the application of force to the complainant or another person (c) fraud (d) the exercise of authority

Level 2 assault – with a weapon or causing bodily harm, is at s. 267. Level 3 – aggravated assault (maiming or endangering life) is at s. 268. R. v. Jobidon  Are parties to a consensual fist fight guilty of assault?  No one can legally consent to a fight envisaging bodily harm. Issue in dissent whether the court, by adding to the list at s. 265(3), is legislating an offence. Majority considered the social utility of the event, for example sports, can add to the list if public policy so dictates.  Two men in a bar agree to go outside and settle it. Accused punched the other guy six times in quick succession, found guilty of manslaughter. If it was not an assault, it couldn‟t have been manslaughter. R. v. Cuerrier  What is the meaning of „fraud‟ at s. 265(3)(c) of the Criminal Code?  Used to read fraud “as to the nature and quality of the act.” Cory/Majority: fraud requires dishonesty (which may be satisfied by non-disclosure) and deprivation, which could be physical injury or to put at risk of illness or serious bodily harm. So, “significant risk of serious bodily harm.” L‟H-D would give fraud as any lie leading to sex.  Accused had unprotected sex with two women without disclosing his HIV status. R. v. Williams  How does HIV status affect assault?  There must be concurrence of the actus reus and mens rea. Therefore the accused must know he is HIV positive before engaging in the sexual acts that transmit the disease to be guilty of aggravated assault.  Man had unprotected sex with woman, found out he was HIV positive and continued having unprotected sex with her. She gets HIV but may have contracted it before he knew he was positive. He is guilty of attempted aggravated assault: he had mens rea only after his diagnosis. The actus reus of the assault – actual transmission of the disease – may have occurred before he had any mens rea. However, the actus reus of the attempt only requires acts going beyond mere preparation – it doesn‟t matter if the bank vault is empty. R. v. Dewey  What is the mens rea required for assault causing bodily harm?  Manslaughter requires the mens rea for the underlying unlawful act (e.g. assault) and an objective foreseeability of bodily harm. By analogy, the mens rea for assault causing bodily harm is also the intent or recklessness required for assault and the objective foreseeability of bodily harm.  Accused shoved man who hit his head on the jukebox or the corner of the wall. Charged with assault causing bodily harm. R. v. McSorley  Does the criminal law extend to professional sports?

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Athletes give implied consent to conduct within the rules and norms of their sport. Conduct outside those rules or norms may be prosecuted by the criminal law. Accused gave a two-handed swing of his hockey stick to another‟s head. Judge found he intended to do so.

LESSON 10: SEXUAL ASSAULT Sexual assault is at s. 271, level 2 sexual assault (weapon or bodily harm) is at s. 272 and level 3, aggravated sexual assault, is at s. 273. An additional list of factors vitiating consent in sexual assault cases is at s. 273.1(2): (b) no one may consent on another‟s behalf (c) the complainant is incapable of consenting to the activity (d) abuse of trust, power or authority (e) if complainant by words or actions expresses a lack of agreement (f) if complainant, having consented to engage in sexual activity, expresses by words or conduct a lack of agreement to continue to engage in sexual activity. The age of consent is 14. Offences against children are at s. 151-3. There are some exceptions to territoriality for sex crimes overseas. There is still prosecution under old offences, but proceeding under the new rules. R. v. K.B.V.  What is the actus reus for sexual assault?  Sexual assault requires the unlawful application of force without consent (assault), that a reasonable observer would conclude is sexual in nature.  Man disciplined son by grabbing his scrotum, found guilty of sexual assault. R. v. Audet  What is the difference in meaning of Criminal Code s. 273.1(2)(c): consent vitiated where “abuse of a position of trust, power or authority.” and s. 153(1)?  The mere existence of a position of trust or authority is sufficient for the actus reus of s. 153(1): sexual exploitation.  Phys. ed. teacher, aged 22, had oral sex with 14-year-old former student. R. v. Litchfield  What information is relevant in determining whether there was consent?  All circumstances surrounding the incident (e.g. doctor-patient relationship, power imbalance) should be considered in determining whether the complainant consented to the complained of behaviour or whether it was assault.  Gynaecologist – seven complainants or touching outside the scope of a medical exam.

R. v. S. (D. G.)  When should the court consider vitiation of consent? What is the meaning of consent?  Factors vitiating consent should not be considered until the Crown is found to have failed to prove a lack of consent. Consent as defined at s. 273.1(1) is “voluntary agreement” where voluntary means no submission, non-resistance, non-objection, fear, etc.  Ex-boyfriend threatened to disseminate nude pictures of girl if she didn‟t have sex with him. Crown went with s. 273.1(2) – abuse of position of power at trial, ONCA said no need, there was no consent in the first place. Conceptual problem here with the meaning of the word voluntary. R. v. Faulkner  What effect does intoxication have on consent?  Intoxication may render someone incapable of consenting, as per s. 273.1(2). Vitiation should not be considered until a reasonable doubt is raised that consent existed.  Fifteen-year-old complainant had marijuana, LSD. Twenty-three-year-old accused „drove her home‟, stopped at isolated spot, they had sex. She “may have given him the impression the sex was consensual.” Consent was not put to the error, just the issue of vitiation and intoxication. R. v. Ewanchuk  How is consent determined in a case of sexual assault?  Consent is determined subjectively, from the complainant‟s point of view. Thus there is no defence of „implied consent‟ in Canadian criminal law.  Job interview in the van, with massages, non-consensual sexual touching, she said no three times. R. v. Malcolm  When may an accused plead an honest but mistaken belief, or mistake of fact, defense?  To plead a „mistake of fact‟ defence the accused must have taken reasonable steps to ascertain the complainant was consenting (273.2(b)) in the circumstances known to the accused at the time.  New Year‟s Party, complainant and accused kissed at midnight. Very different stories from there. She said she woke up with him in her bed, sexual contact. R. v. Darrach  Is the objective component to sexual assault introduced by s. 273.2(b) – that reasonable steps must be taken to ascertain consent – constitutionally invalid?  Sexual assault is not a stigmatic crime because it is too general, and so the objective component is constitutional. Alternatively, if it is stigmatic, the reasonable steps are based on subjective knowledge. If the steps are taken, mistake of fact can still work though the mistake itself was unreasonable. The objective component is constitutionally valid.

No facts given in the excerpt.

LESSON 11: INSANITY AND AUTOMATISM Insanity at time of trial: Fitness hearing – not adversarial – the defense has an obligation to the court to say if he thinks his client is unfit. Fitness requires a basic understanding of the court process: the role of the judge and prosecution, and the taking of the oath. Insanity at time of the offence: Insanity is to be proved by the party raising the issue on a balance of probabilities. Insanity requires (i) the existence of a disease of the mind (or mental disorder) that either renders the person (ii) incapable of appreciating the nature and quality of the act, or (iii) incapable of knowing it was wrong. Cooper v. The Queen  What is a disease of the mind?  What constitutes a disease of the mind is a question of law, therefore the trier of law decides if that term comprehends a condition described in court. The term “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.”  Accused had a long history of psychiatric illness. Strangled women, phoned police, lied to them and made inconsistent statements. Kjeldsen v. The Queen  What is the meaning of “appreciating the nature and quality of the act?”  To “appreciate” in this context requires only an understanding of the physical consequences of an act, and not any greater emotional understanding. [Policy: shrinks wanted psychos in prison, not in hospitals.]  Got a day pass from the Alberta hospital, brutal rape and murder of a Calgary cab driver. R. v. Chaulk  What is the meaning of “knowing the act was wrong?”  To know the act was wrong means wrong according to the moral standards of society, and not to know that it was a crime.  No facts related. R. v. Oommen  How do you apply the third arm of the insanity test?  If the accused knew in the abstract the act was wrong, but had delusions that led him to believe the act was necessary and justified, then he was “incapable of knowing the act was wrong.”

Accused shot woman sleeping in his apartment – believed she was part of a conspiracy to kill him.

Automatism goes to volition and capacity in the actus reus. Non-insane or „pure‟ automatism is a complete defense. Insane automatism is a form of insanity. „Psychological blow‟ automatism: an extraordinary trigger that would cause even a normal person to go into a state of automatism. The distinction from Rabey (U of T – squash courts – strangling) is between an external and internal cause, where external causes (concussion) go to automatism and internal causes to insanity. Parks described the „holistic approach‟ to deciding whether a condition was a disease of the mind: it is more complex than simply internal vs. external cause, also consider recurring danger – whether the accused is likely to face the same trigger again, and policy reasons – whether this defense could be fabricated. R. v. Stone  When may the defense of automatism apply?  Automatism is to be proved by the defense on a balance of probabilities. It requires “impaired consciousness” and “no voluntary control of actions.” Which type of automatism goes to the trier of fact depends on whether the trier of law finds the condition of the accused to have been a disease of the mind. There is a presumption in favour of mental disorder automatism, with the issue to be decided using the Parks holistic approach.  The evidentiary burden on the defense is therefore “some evidence on which a reasonable jury could find on a balance of probabilities the accused was acting involuntarily.” To meet this evidentiary burden the accused must assert involuntariness and get expert testimony. Other factors to be considered by the judge are: the severity of the triggering stimulus, bystander evidence, medical history, motive and whether the trigger is also the victim.  Man yelled at by wife, blanks out, comes to after stabbing her more than 40 times. R. v. Fontaine  What is required to meet the evidential burden for the defense of automatism?  The „other factors‟ discussed in Stone should go to the trier of fact as considerations for the legal or persuasive burden. They should not affect the judge‟s determination of whether the evidential burden has been met.  QC – “under the table garage mechanic” shoots man to stop him from carrying out the contract on his head.

LESSON 12: INTOXICATION Intoxication is a defence because and to the extent that it goes to intent. Can be advanced though intoxication results from illegal behaviour (drugs). Beard in the House of Lords made the distinction between general and specific intent offences and held that intoxication was a defence to the latter. The distinction is usually made on policy grounds, though academics argue otherwise. Leary affirmed in Canada that intoxication is not a defence to general intent offences. Bernard was the first case in which the SCC considered the intoxication defense in light of the Charter. Lamer alone suggested trusting juries and letting the defence apply to all offences. L‟Heureux-Dube and Wilson said it could go to general intent offences if extreme enough to have induced a state akin to insanity or automatism. McIntyre said don‟t rock the boat. R. v. Daviault  To what offences may the intoxication offence apply?  The defence of intoxication can be used to negate the requisite intent for specific intent offences – this requires the defense to raise a reasonable doubt. For general intent offences an accused must assert with expert testimony that the intoxication induced a state akin to insanity or automatism, to be proved on a balance of probabilities.  Sixty-five year old complainant, confined to a wheelchair. Husband‟s friend came over, got extremely drunk, later wakes up nude in her bed. She says he threw her on the bed and assaulted her. Intoxication defence extended here because the majority found a s. 7 problem with the rule in Leary – insufficient moral blameworthiness if accused committed a general intent offence while in an intoxication induced state akin to insanity or automatism. Parliament reacted swiftly to Daviault and the ensuing public outcry with Criminal Code s. 33.1. This section labels acts committed while extremely intoxicated as “a marked departure from the standard of reasonable care.” Intoxication leading to a lack of general intent or voluntariness is not a defence to offences involving assault or interference or threats of interference with the bodily integrity of another. The constitutionality of this provision in light of the majority decision in Daviault has not been considered.

LESSON 13: NECESSITY The Canadian courts have the power to create defences. Necessity is a common law defence. The Crown must prove beyond a reasonable doubt that necessity does not exist. Defences are either justifications, which challenge the wrongfulness of the act, or excuses, which concede the wrongfulness of the act but pleads circumstances.

R. v. Perka  What is the defence of necessity?  As an excuse, necessity is based on the concept of moral involuntariness. Three step test: (i) the situation must be urgent and the peril imminent (ii) compliance with the law must be demonstrably impossible (iii) proportionality: the harm inflicted must be less than the harm sought to be avoided  Large amounts of marijuana landed on Vancouver Island, pleaded danger of the open seas forced them to shore. Problem for the defence of necessity: foreseeability of danger. R. v. Latimer  What test, subjective or objective, is to be applied to the Perka test for necessity?  The first two steps of the Perka test are modified objective tests. The objective test is modified by “personal characteristics that legitimately affect what may be expected of that person.” The third step is a purely objective test, informed by community standards and constitutional considerations.  Daughter had severe cerebral palsy, father killed her with carbon monoxide from his truck. R. v. C. W. V.  What degree of foreseeability will stop an accused from pleading necessity?  If an accused foresaw or ought to have foreseen the emergency situation he will not be able to plead necessity.  Youth went to party to retrieve a „hotly contested‟ keg of beer.

LESSON 14: DURESS Both statutory and common law defences of duress exist in Canadian criminal law. The Crown must prove beyond a reasonable doubt that duress does not exist. Both defences are excuses. The statutory defence of duress, as at s. 17 of the Criminal Code, was described in Carker, where an inmate was held to be guilty of damaging his cell, because the threats he received could not have immediately been executed. R. v. Ruzic  What is the defence of duress?  The common law defence of duress requires: (i) a threat of death or bodily harm to the accused or to another (ii) a subjective belief the threats will be carried out (iii) that a reasonable person in the position of the accused would feel they had no choice but to act as the accused did (iv) that there have been no safe avenue of escape

Section 17 of the Criminal Code was struck down to the extent it required the physical presence of the threatener – the “immediacy and presence requirements.” Those requirements were contrary to the principle of fundamental justice that people should not be punished for morally involuntary acts. The list of offences excluded from the statutory defence of duress was not addressed by the Court. Drug mule – her mother in Yugoslavia would be killed if she didn‟t obey.

R. v. Li, Chen and Liu  What degree of foreseeability will stop an accused from pleading duress?  By analogy to necessity, if the accused foresaw the situation where he would be subject to duress, he will not be able to plead duress. Or ought to have foreseen? Perka for necessity is confusing on this, Pringle said the defense should not be negated because of the accused‟s negligence.  Men smuggled into Canada by a gang, were forced to participate in kidnapping of several people.

LESSON 15: PROVOCATION Provocation is a partial defence, legislated at s. 232 of the Criminal Code, can only reduce murder to manslaughter. If unsuccessful, evidence led can still go to intent. The Crown must prove beyond a reasonable doubt provocation does not exist – proof on either arm of the test is sufficient. Thibert v. The Queen  What is the defence of provocation?  The first arm of the test for provocation is objective: a wrongful act or insult sufficient to deprive an ordinary person of self-control. This is a modified objective test as the ordinary person will have the same age and sex as the accused, as well as any other factors giving the wrongful act or insult special significance. If the objective arm is passed, the subjective arm of the test is considered: did the accused act on the provocation, on the sudden, before his passion had time to cool. The evidentiary burden must be passed on both arms for the defence to go to the jury.  Man killed his estranged wife‟s new man, alleged provocative comments. From Daniels, look at all events/circumstances under both arms of the test. The last event, though minor, may have been the straw that broke the camel‟s back. R. v. Nealy  How shall the court deal with evidence of provocation?  After charging the jury with respect to specific defences and the evidence related to them, the judge must direct the jury as to the potential cumulative effect of the evidence on intent. The judge must not compartmentalize the evidence.

Tavern, two men arguing over a woman. Went out to parking lot to fight, accused brought knife. At one point told the deceased to back off, stabbed him.

R. v. Parent  Does anger constitute provocation?  Anger or rage is not a stand-alone defence, and if insufficient to establish provocation cannot reduce murder to manslaughter.  Man met with estranged wife. She threatened to wipe him out financially, he shot her six times with the gun he‟d brought to the meeting.

LESSON 16: MISTAKE OF LAW Legislated at s. 19 of the Criminal Code, ignorance of the law is no excuse. Can try arguing mistake of civil law, or mistake of fact. In Molis, the accused produced designer drugs and checked occasionally to see that what he was producing had not been banned. He missed something that had been gazetted and was found guilty. Exceptions to the rule are: 1) the accused can argue it was a mistake of fact 2) if the defence requires knowledge of the law as part of its mens rea, e.g. abduction of a child in contravention of a custody order (s. 282) allows a defence if the accused misinterpreted the custody order 3) colour of right operates for many property offences, e.g. if a tow truck driver illegally tows a vehicle they may have done so under colour of right. 4) officially induced error R. v. Campbell and Mlynarchuk  Is ignorance of the law ever an excuse?  Ignorance of the law, even if shared by a judge of a provincial superior court, is no excuse for committing a criminal offence.  Woman charged for dancing nude after a judge ruled that it was not criminal to do so. His decision was reversed on appeal. No question here of officially induced error. Jorgensen – sold obscene videos, found obscene according to the leading, recent case of Butler. But were approved by the ON film board. Mistake of a new, vague law is no excuse, but Crown would have to prove that the accused knew the films contained more than just graphic sex.

R. v. Klundert  If knowledge of the law is required by the mens rea of an offence, such as tax evasion, is such knowledge negated by a subjective belief that the law is unconstitutional?  A subjective belief in the constitutional invalidity of a law is irrelevant to whether or not an accused had actual knowledge of the law.  Optometrist forms the belief that the federal government cannot constitutionally tax him, stops paying taxes, charged with tax evasion. Levis (City) v. Tetreault  What is the defence of officially induced error?  The accused must prove six elements on a balance of probabilities to establish the defence of officially induced error, which allows for a stay of proceedings, not an acquittal: (i) an error of law, or of mixed law and fact (ii) the accused considered the legal consequences of his action (iii) the advice came from an appropriate government official (iv) the advice was or appeared to be reasonable (v) the advice was erroneous (vi) the person relied on the advice  Man and his company charged for driving an unregistered vehicle – did not receive renewal notice because the government forgot his apartment number.

LESSON 17: SELF-DEFENCE Legislated at ss. 34-5 of the Criminal Code. Section 34(1) applies when: (i) the accused is assaulted (ii) the accused did not provoke the assault (iii) the accused did not intend death or grievous bodily harm (iv) the force employed was no more than necessary to self-defence 34(2) applies when the accused did intend death or grievous bodily harm. Section 35 applies when the accused began by assaulting another or provoking an assault. R. v. Bogue  Can you plead a reasonable mistake as to proportionality as part of self-defence?  For s. 34(2), the accused will not be prevented from pleading self-defence if he made a reasonable mistake, i.e. if he reasonably apprehended death or grievous bodily harm. Courts seem to be moving towards allowing reasonable mistake under 34(1) as well.  Extreme domestic violence and alcohol. Neighbours respond to woman‟s call for help, leave to call cops, she stabs him to death. R. v. Lavallee

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Is imminency of the threat to the accused necessary for self-defence to apply? Absolute imminency is not necessary so long as there is a reasonable apprehension of death or grievous bodily harm. Imminency is considered but not binding. Applies to s. 34, both (1) and (2).  Battered woman killed her husband, claimed she aimed above his head. Expert evidence re: abuse – “traumatic bonding” etc. necessary to establish to the jury what the reasonable abused person would do. Expert evidence is only as strong as the evidence that supports it, e.g. the testimony of the accused. R. v. Cinous  What is the test for self-defence under s. 34(2) of the Code?  Section 34(2) requires: (i) the existence of an assault: is being or will be assaulted (ii) apprehension of death or grievous bodily harm (iii) belief in the absence of alternatives to killing Each arm of the test must be passed both subjectively – the accused must be believed to have actually thought so – and objectively – it must be found that a reasonable person in the position of the accused would also have thought so, „based on reasonable grounds‟.  QC criminal – fell out of favour with his fellow thieves. Believed they planned to kill him so he struck pre-emptively out of fear for his life.

LESSON 18: PARTIES A bystander is not a party to an offence – to be a party one must aid or abet. For an employer to be responsible under agency for the crimes of an employee, the employee‟s acts must have been approved by management, even if at the lowest level. R. v. Dunlop  What is the crime of being a party to an offence?  The actus reus of being a party is aiding or abetting an offence, the mens rea is to intend to aid or abet.  Woman testifies men were principals to a gang rape (that they actually raped her). They testified they did nothing. Judge gave jury parties though there was no evidence to support that. R. v. Grey Eyes  Is an agent for the purchaser a party to drug trafficking?  An agent for the purchaser is not guilty of drug trafficking.  Grey Eyes helped an undercover agent buy drugs, but also facilitated in other ways and took a cut for himself – so was an agent for the vendor as well, and so guilty of drug trafficking.