Ontario Criminal Law Primer
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This primer is not checked for accuracy and should not be relied upon. At best, it might inform the questions that you ask your lawyer.
[edit] SOURCES OF THE CRIMINAL LAW:
- Common law – defences generally found here (offences now codified)
- Statute – Criminal Code is main source of offences. Codify and summarize common law, and change common law rules
Principles of statutory interpretation: interpret in entire context according to ordinary meaning (Clark); when ambiguity, look to French version (Daoust), strict construction (where multiple plausible meanings, go with the one most favourable to the accused – Re Xerox, Goulis, Mac, Pare – no strict construction because “single transaction analysis” more plausible)
Division of powers – Provinces can create regulatory offences where something falls under one of their heads of power. Firearms Reference talks about valid criminal law – 3 req’ts: valid criminal purpose backed by prohibition and penalty. Court doesn’t look at whether it’s a good law, just whether it’s intra vires.
Charter – intra vires criminal Legislation can be invalid if it violates the Charter. Charter is mainly concerned with criminal procedure more than substantive law. Most considered is s7 (life, liberty & security of the person & right not to be deprived thereof except in accordance with the principles of fundamental justice) & s1 (reasonable limits on rights).
Principles of Fundamental Justice are basic tenets of the legal system (different from natural justice); biggest PFJs are limits on vagueness, overbreadth, & arbitrariness. Heywood: Convicted of sexual assault, lifelong ban on loitering near parks/pools/etc on release. Court found ban overbroad because encompassed situations where no danger to kids (e.g., Algonquin Park) & no procedure for having ban lifted if he recovered.
[edit] PROCEDURAL OVERVIEW
Classification of offences – the more serious the offence and the greater the punishment, the more procedural rights the accused has. 3 kinds: 1) Summary conviction (ex. shoplifting – no preliminary hearing, trial at provincial court of justice. 2) Hybrid (ex. assault – can proceed on summary conviction or indictment; Crown chooses). 3) Indictable offences.
3 kinds of indictable offences:
- a) absolute Jurisdiction (s553, which means provincial court of justice trial),
- b) s469 (trial at superior court of justice with jury and optional preliminary hearing),
- c) otherwise have trial at provincial court of justice and no preliminary hearing or trial at superior court of justice with jury and optional preliminary hearing.
Classification found in Criminal Code under offence provision.
Preliminary hearing is like a mini trial that takes place in the provincial court – Crown must prove prima facie case. Arraignment is when accused pleads (guilty/not guilty/autrefois convict/autrefois acquit). Jury selection if necessary, and then trial. Hung jury means retrial. Accused has right to appeal to SCC where CA dissent on point of law in accused’s favour, or where CA overturns acquittal.
Evidence – used by Crown to prove all elements of the offence. Can be testimony or real evidence (stuff). Testimony can be direct (proves a fact that needs to be proven) or circumstantial (supporting).
Presumption of innocence – s11(d) of Charter. Woolmington (common law) – judge said it was up to accused to prove accident if jury believe he killed the victim. Overturned because burden always on the Crown. Note CA doesn’t need to overturn even if error of law at trial unless there’s substantial miscarriage of justice.
Reasonable doubt: can arise on evidence of Crown or defence. s11(d) means accused must be able to be acquitted without presenting evidence. W(D) – problem with judge’s second jury charge (said they had to decide whether they believed him, when really they had to decide if the Crown proved guilt beyond a reasonable doubt). Jury charge must accurately explain law so jury can understand it. Lifchus – judges must always explain reasonable doubt (includes definition). Starr – reasonable doubt is higher standard than balance of probabilities.
Reverse onus – accused must disprove something. Presumption that some element of offence is true unless disproved. Contested in Oakes, but upheld in Downey and in insanity plea.
[edit] Oakes test
(s1 of the Charter) – gives test for whether law can be saved under s1 of Charter. 2 (really 4) steps:
- 1) goal must be pressing and substantial.
- 2) Proportionality:
- a) rational connection;
- b) minimal impairment;
- c) proportionate effects (bad can’t outweigh the good). Law must pass all to be saved.
Evidence obtained contrary to the Charter is excluded at trial.
[edit] ROLE OF THE CRIMINAL JUSTICE SYSTEM IN CANADIAN SOCIETY
Victims’ rights – Victim doesn’t have much role in Canadian law (basically just a witness). Can feel revictimized by criminal process. Little input (want input in sentencing). Cross-examination can revictimized (esp historically in rape cases). Some steps to protect victims: rape shield laws, victim services offices, bans on identifying victims (esp in sexual assault, esp with kids), victim impact statements can now be read in sentencing.
Aboriginal peoples – Over-represented in jails. Criminal justice system doesn’t reflect their traditions. Want to self-administer justice. Aboriginal justice more restorative than punitive/retribution.
Scope – valid purposes of criminal law? Malmo-Levine – harm principle (only valid reason for exercise of criminal law is to prevent harm to self/others/society) is not PFJ. Truths of criminology – it’s questionable whether harsher sanctions have deterrent effect.
[edit] ROLES & RESPONSIBILITIES OF JUDGES & LAWYERS
The adversary system – in Canada, two opposite sides (ex Crown and accused) both arguing and impartial judge decides. Contrast to nonadversarial (in France, Germany), where judge investigates. RDS concerned with judicial impartiality (judge made comments to effect of overactive cops; Crown appealed saying comments raised reasonable apprehension of bias; majority holds no bias, has problem with the remarks). Ethical obligations – all lawyers have duty of confidentiality to clients (info learned through professional relationship). Defence must be loyal to client (work in their best interests, protect them from being convicted on insufficient evidence) & advocate for client (represent them fairly & to best of abilities; raise all issues, put forward all defences); but defence can’t let client do anything illegal & can’t deceive court (so don’t ask if client guilty b/c can’t plead not guilty if you know they are). Prosecutor must seek truth & justice (not conviction), exercise discretion fairly and impartially, & disclose all evidence to defence (comes up in Stinchcombe). Luban – defence lawyers called to do something morally questionable, but ethics are feature of advocate role that is necessary to the perceived justice of the institution. Greenspan & Jonas – defence lawyer is the one person who believes the accused and treats them as if innocent (because sometimes they are innocent).
[edit] The Act Requirement (Actus Reus)
[edit] COMMISSION OF AN UNLAWFUL ACT
External (actus reus) elements include physical actions, speech (ex. uttering threats), circumstances (ex. trespassing) & consequences (ex. victim dying from wounds). Crown must prove all elements. Thorne – prisoner on trial for failing to disperse after riot act read; CA quashed conviction because trial judge redrafted the act and changed meaning inadvertently – Crown had proved all elements and he was guilty, but still acquitted. Actus reus required because impossible to prove mental states alone and there’s a difference between intent and actually doing something.
Causing disturbance in a public place – Lohne (neighbour left crap all over his lawn & ran loud motors, accused got pissed and yelled obscenities at him. Accused got arrested for yelling. Causing disturbance means externally-manifested disruption of public’s ordinary and common use of a place. SCC acquitted him).
Vicarious liability: common in tort, but is it right to punish someone who didn’t commit an offence? Used to have it with traffic offences (ex. photo radar), but not anymore. Burt – Got home before police pulled him over, so it wasn’t clear if was driver. Vehicles Act said that the owner of the car is liable unless they can prove otherwise. Vicarious liability violated s7 & the decision was upheld. One PFJ is that someone shouldn’t be punished when they didn’t do anything wrong. BUT vicarious liability offences still exist.
Possession – Can be tricky. Different from ownership – must have some measure of control over thing. Defined in s4(3) of Code. Personal possession = having thing on your person; constructive possession = having it in someone else’s possession/custody or somewhere else; joint possession req’s knowledge and consent of everyone that one person has thing.
Marshall – Kids on road trip, M realizes after leaving that there’s pot in car. All charged with possession w/intent to traffic, M appealed b/c didn’t smoke and didn’t know when got in car. No consent, but leaves undecided whether he needed control over pot to have possession.
Terrence – Joyriding in stolen car, but didn’t know car stolen. Charged w/possession of stolen property, SCC holds some control necessary for possession.
Pham – Deals with joint & constructive possession. Accused’s apartment; she goes away for a few days, cops raid house when she comes back & find drugs. Argued that her bf put it there, but ct finds constructive possession either alone or jointly with bf. Constructive possession requires control over thing. Act element can be very minor (ex. not objecting).
[edit] Consent
Courier – Fraud vitiates consent to sex where person knows they’re HIV+ & doesn’t tell & has unprotected sex (charged with aggravated assault). SCC held fraud vitiates consent where it exposes victim unknowingly to risk of extreme harm.
Williams – 18-month relationship. Found out part way through that HIV+ & kept having unprotected sex & didn’t tell partner. But don’t know if contracted HIV before relationship started/before found out. SCC says no aggravated assault b/c have mens rea, but don’t know if endangering act (i.e., complainant could already be exposed to HIV).
Note: Act and fault elements must overlap for at least an instant. Could still be attempted aggravated assault.
[edit] OMISSIONS – LEGAL DUTIES TO ACT
Moral v. legal duties – Don’t want law to be morality b/c morality varies btn people/groups. Utilitarian view obligates to do whatever can w/o prejudicing self. What is an omission? Sometimes actus reus = failure to act. No liability unless legal duty to act (ex. good Samaritan laws, which req action – ex, duty to rescue). But if there’s an obligation, where does it end? Legal duties often set out in statutes (ex. Child Welfare Act). Quebec Charter & French Penal Code impose duty to help where someone’s life in danger, French Code says duty to prevent serious crime. Widespread duty to help in civil law. Holmes article: no duty to help, but must once involved in situation. Fagan – Cop orders accused to pull over, does, but not close enough. Moves closer to curb & runs over cop’s foot. Cop asks to move, finally does, it’s clear he stayed on foot deliberately. Drove onto cop’s foot accidentally, but staying was deliberate, so assault? No, but dissent says staying was omission. Majority understands actus reus as driving onto & staying on foot.
How do legal duties arise? Statute (ex. Child & Family Services Act or Criminal Code), common law. Where there’s an undertaking (ex. promise, starting to do it), duty to do it to best of abilities.
Miller – Squatter finds home, falls asleep there & fire starts from squatter’s cigarette. Wakes up and finds mattress on fire, moves to another room & falls asleep. Omission because didn’t act to put fire out. House of Lords says it’s arson: either duty to act b/c accused’s action started fire, or leaving the fire was continuation of falling asleep with cigarette (court uses first).
Moore – Accused wouldn’t give name when asked by police; is that obstruct police? Majority says yes b/c only way police can do job is to stop accused & find out who he is (not a good argument).
Beardsley – Drinking with woman & she takes a bunch of pills. He realizes, & takes her downstairs & asks tenant to take care of her; she dies. Taking her downstairs = undertaking? Could say he undertook to get someone else to help her. Relationship insufficient to form duty. Recall Peterson where person in accused’s charge – if woman in Beardsley’s charge, then duty to help.
Thornton raised issue of common law duty not to hurt others – is this duty to act or to omit?
[edit] VOLUNTARINESS
Defining conduct that is not voluntary – Actor has willpower to do the act; being able to choose whether to do the act. Unconscious behaviour or where actor has no control = not voluntary. Act can only be actus reus if it’s done voluntarily. Crown must prove voluntariness.
Why do we need voluntariness for the actus reus? Can be considered minimal mental element. Act only morally blameworthy if act was voluntary, & only want to punish morally guilty; can’t deter involuntary actions.
[edit] Examples not associated with mental disorder
Lucki – Driving in Saskatoon, turns corner & momentum pushes into oncoming lane & hits another car. Involuntary – condition of road & momentum caused to be on wrong side of road.
Wolfe – Complainant started fight & punched defendant, defendant reflexively punched back. Argued punch = reflexive & not voluntary. Acquitted.
Swaby – Driving w/passenger J. Cops following car, they stopped & J ran. Cops found unregistered gun where J ran. Ont CA said Crown didn’t prove voluntariness – it’s implicit that act must be voluntary & Crown must prove voluntariness. Swaby may not have known J had gun at first & may have made J get rid of gun when found out – Ct says some period of time given for him to deal with situation before guilt attaches.
Ryan – Trying to emulate book, robs service station. Accidentally shoots & kills someone. Jury says shooting accidental & convicts, issue was whether should have considered involuntariness. Ct said no b/c he went in w/gun & pointed it @ someone
w/finger on trigger, so voluntarily put himself in situation.
Kilbride v. Lake – Guy parked car, came back & found ticket for failing to display current warrant. Ct found sticker was there when he parked, but something happened & it was removed while he was away, so no voluntary act b/c he had no choice (could have been wind/someone else/etc). Distinguished btn mens rea (no mens rea for this offence) & voluntariness (always req’d).
[edit] ACTING THROUGH AN INNOCENT AGENT
Michael – Mother had nanny give baby poison, saying it was medicine. Baby died, mother still guilty even though acted through an innocent.
[edit] CAUSATION
Criminal Code – Consequence crimes: consequences req’d as part of actus reus for some offences (ex. in homicide, person must die, in arson there must be damage, etc). 2 kinds of causation: factual (proving the mechanical facts) & legal (holding the actor responsible; imputed cause – to do with whether to hold actor legally responsible). Different from in tort (in tort, clear definition & test, but not in crim). Causation can change offence (ex. dangerous driving is an offence, dangerous driving causing death is more serious).
[edit] Common law
Smithers – Leading Canadian case on causation. Rowdy hockey game, afterwards victim & teammates corner accused in parking lot, accused kicks victim & victim dies (fr aspiration of vomit). Charged with unlawful act manslaughter (unlawful act was kick). Issue was causation. Thin skull rule came into play here (kick probably wouldn’t have killed normal person). Expert & lay witnesses can be called for either side & their testimony is valid & can ground causation. Test for causation in manslaughter: req’s that illegal act be “a contributing cause... outside the de minimis range.” Case emphasizes importance of distinguishing legal & factual causation (but doesn’t do it well).
Blaue – Propositioned girl & stabbed her. She was taken to hospital & needed blood transfusion; refused transfusion & died. She wouldn’t have died if accepted blood, & chain of causation would be broken if her refusal was unreasonable – but who says what’s unreasonable? Ct says his stab wound caused injuries that killed her (extreme ex of thin skull rule).
Criminal Code now includes provision that, if you cause injuries that lead to death, you’re guilty even if medical treatment could have saved them. Also provisions that you’re guilty if you cause someone to kill themselves out of fear or if you cause injury & they die from complications in treatment. Implication in Smithers that illegal cause need not be only cause (or even major cause), just not a trivial one.
Harbottle – Accused & companion confined & sexually assaulted woman, then accused held her down & friend strangled her – issue was causation. Murder elevated to 1st degree when committed during certain other crimes incl forcible confinement. Ct says higher causation req’t in this type of case than in manslaughter: must be “substantial & integral” cause of death. Gen’ly means accused must be physically involved in death, but not always (ex. stopping rescuers fr intervening).
Nette – Old widow victim of robbery, bound & clothes put around her head. Days later, she fell fr bed & clothes wound tighter, she asphyxiated. Accused bound her. Ct distinguished legal & factual causation, but juries deal with them together. Affirms Smithers & interprets: “significant contributing cause” (still lower than Harbottle test, though).
[edit] Charter
F(DL) – Driving too fast w/o contacts w/bad breaks on narrow road (also drunk). Hit jaywalker. Accused of drunk driving & dangerous driving causing bodily harm. Trial judge acquitted b/c not every element of dangerous driving caused the harm. Appellate ct said shouldn’t break down dangerous driving into so many things – pts of dangerous driving (i.e., inattention) led to harm. Used Smithers test (b/c before Nette decision). Appeal judge raises possible s7 challenge in holding someone guilty for cause merely “outside the de minimis range.” Not clear whether this challenge still arises on Nette test.
Intervening cause – no criminal liability where chain of causation broken. No good Canadian cases on this, so on exams mention that they’re foreign & only persuasive (not binding).
Smith – Fight btn soldiers & victim stabbed twice w/bayonets. Treated by doctors, but dropped twice on way & doctors didn’t realize one stab wound punctured lung. Victim died & issue was whether bad treatment broke chain of causation. Guilty.
- Test = @ time of death, was illegal act still operating cause & substantial cause? If original wound = merely setting in which another cause operates, then intervening cause. Contrast w/Jordan (ref’d in Smith), where victim stabbed, then in hospital given antibiotic he was allergic to & too much IV fluid. Note: In Canada, Jordan might fall under s225 of Criminal Code & stabber would still be guilty.
Bingapore – got in fight & gave victim head injuries. Victim went to hospital & left against doctors’ orders. Later rushed back to hospital for surgery & died the next day. Was cause of death head injury or early check-out from hospital? Ct said head injury, but contributory negligence fr victim. Note: in Canada, would fall under s224 of Code & accused would be guilty.
Menezes (ON case) – 2 kids drag racing in souped up cars. Accused goads friend on, but then backed off & victim kept going @ full speed. Victim gained huge lead on accused, then lost control & crashed (died). Charged w/dangerous driving & criminal negligence causing death. Issue was causation. Note: criminal negligence simpliciter not a crime (only if causes bodily harm/death), but dangerous driving simpliciter is. Guilty of dangerous driving, but doubt about causation (so no criminal negligence): anyone part of a drag race is responsible for harm to other racers or bystanders (b/c part of the race), but friend would have known accused had withdrawn. Says intervening cause can be withdrawal/abandonment so long as other knows you’re done.
[edit] The Fault Requirement (Mens Rea or Negligence)
[edit] SUBJECTIVE-OBJECTIVE DISTINCTION
2 standards for fault:
- objective (ought to have known there was a risk) or
- subjective (very specific to situation – prove accused knew the risk).
Subj is harder for Crown to prove. Can also have no fault requirement (absolute liability) or negligence (obj), but gen’ly crim offences need fault element (“guilty mind”). Can relate to various aspects of offence – with assault, must intend application of force w/o consent. Fault element deals with moral blameworthiness.
Hundal – Describes subj/obj distinction & defines each. How do we prove subj fault? Testimony fr accused, or presume they intend foreseeable consequences of actions.
Theroux – Mens rea not only mental element (recall also need voluntariness). Doesn’t relate to accused’s morals (don’t care if they thought it was wrong, only if knew what they were doing & understood consequences). Mens rea can be inferred fr circumstances.
Mulligan – Issue was if Crown proved intent to kill (man repeatedly stabbed wife). Didn’t testify, but circumstances established intent to kill.
Ortt – Jury charge suggested accused bore burden to prove didn’t intent foreseeable consequences of act (not true). Changed charge from a presumption of intent to the possibility of inferring intent.
[edit] FAULT FOR PUBLIC WELFARE (REGULATORY) OFFENCES
Common law – Used to only have subj mens rea or absolute liability (not anymore).
Beaver – Accused & friend had heroin & sold some to undercover cop, but accused claimed thought it was something else. Trial judge said all that mattered was if he sold & possessed heroin (suggests absolute liability). SCC said Crown must prove that accused knew it was heroin. On face of Statute, no fault req’t (but ct says legislature must be explicit if wants absolute liability) & it’s a regulatory offence, which suggests absolute liability (but more like real crime that’s harmful in itself than like regulatory offence).
Also, mandatory jail time means mens rea req’d. Note: definition of possession now includes req’t that accused know what they have.
Sault Ste Marie – Charged w/discharging materials into creek & impairing water quality. Independent contractor hired to dispose of waste, put it in landfill next to creek. City said not responsible b/c contractor built landfill. Issue was fault req’t (what is it?). Ct said strict liability (compromise btn absolute liability & subj fault) req’d here & in most regulatory offences. Strict liability = presumption of guilt (like absolute liability) but w/defence of due diligence. Strict liability presumed w/regulatory offences unless Statute says otherwise.
Wholesale Travel – About distinction btn crim & regulatory offences. Crim emphasize deterrence, punishment, moral fault, regulatory about otherwise lawful actions; crim punish past actions, regulatory attempt to prevent. Case deals w/false advertising – crim or regulatory? Regulatory, so strict liability. 2 justifications for treating regulatory differently: licensing (choose to do regulated act, so have responsibility to public to live up to certain standard) & vulnerability (standards protect vulnerable people & Charter shouldn’t be used to make it harder to enforce regulatory offences b/c increases risk to vulnerable groups).
Chapin – Shows how to apply offence category scheme in Sault Ste Marie. Duck hunting & charged w/baiting area, ct said not reasonable to make her check whole area for bait. First determine if regulatory offence; if yes, presume strict liability unless wording says something else (ex. wilfully, intentionally, etc) or if high penalty (i.e., jail time). Charter standards
BC Motor Vehicles Ref – Driving while license suspended = absolute liability offence & penalty = mandatory prison time. Offence w/possibility of jail time cannot be absolute liability under s7 of Charter (offends PFJs). V. rare to have law violating s7 saved under s1 (not saved here, no record of law offending s7 & being saved under s1 to date).
Cancoil Thermal – Factory removed guard on machinery b/c interfered w/clearing scrap. Employee loses tips of fingers by accident – violates safety Legislation that req’s employers to provide guard fr moving parts? Original guard would have prevented. Issue was fault req’t – regulatory & strict liability b/c includes possible jail time. Good ex of vulnerability justification.
Wholesale Travel (again) – Is there min subj fault req’t under Vaillancourt b/c of stigma? No, but min = strict liability b/c of possible jail time (due diligence aka constitutional req’t of negligence). But provisions don’t allow for due diligence, so violate s7 & are struck down. Due diligence puts persuasive burden (instead of evidentiary burden) on accused (Lamer J in dissent says this violates s11(d) b/c harder to prove on balance of probabilities than to raise reasonable doubt).
Transport Robert/William Cameron Trucking – Is there min fault req’t under Charter where prison isn’t available? Dealing w/ absolute liability offence w/fine in commercial trucking & accused said violates s7 & s11(d). Ct says no reverse onus, so no s11(d) violation (legislature can eliminate element if want to, like here). Ct says no s7 violation – liberty not at stake b/c jail not possible. Allege violation of security of person by imposing stigma w/no fault req’t; ct says no right to dignity/to be free of stigma. Notes bring up Levis, which reaffirms that strict liability is still the norm w/regulatory offences; legislature must be clear in wording if want absolute liability.
Summary – see diagram on p416.
Beauchamp – Careless driving case & fault req’t is written into Statute. Ct says negligence req’t here not same as in tort. Looking @ whether accused breached duty of care to public & deserves to be punished for it.
[edit] FAULT FOR CRIMES
Murder & the Charter – Criminal Code s222 defines homicide. S222(2) says it’s culpable or non-cuplable & s222(3) says culpable homicide is murder, manslaughter, or infanticide. Culpable homicide = causing death of another by an unlawful act, deliberately, by criminal negligence etc. Manslaughter is the default for culpable homicide & is included offence in any murder charge (it’s criminal negligence causing death or unlawful act manslaughter). Murder provisions are ss229 & 231 (231 deals w/classifying as 1st or 2nd degree).
Murder under s229(a)(i) & (ii) – Gives definition of murder. In s229(a)(ii) where says “& is reckless whether....” is considered redundant b/c what matters is intent when performed the act. Note: intent is not the same as desire. S229(b) says when you try to kill someone but kill someone else instead, intent transfers and it’s still murder.
Simpson – 2 attempted homicides, issue is jury charge. In charge, judge says must have intended death or to cause harm that knew or ought to have known could cause death (imports obj standard, but murder req’s subj mens rea). This is serious error of law, so new trial. Mention curative proviso (s686(1)(b)(iii) – test in Bevan, but only new trial where error of law leads to substantial miscarriage of justice).
Edelenbos – Accused raped & strangled woman & admitted everything except intent to kill. Prob was jury charge: judge spent too much time talking about meaning of word likely in phrase “knows is likely to cause death” – not usual & could be confusing. Appeal ct says don’t define wds where jury’s ordinary understanding sufficient. But error in charge not prejudicial, so appeal dismissed.
Constructive murder – s229(c) and 230 – NO LONGER THE LAW – constructive murder = killing that’s deemed to be murder w/o usual fault req’t (aka felony murder). Vaillancourt – Armed robbery w/friend & friend shot someone. Told friend before robbery to unload gun & thought friend did. Convicted of constructive murder, said it violated ss7 & 11(d). Lamer J says 2 PFJs apply here: there’s a minimal fault req’t under s7 for offences w/possible imprisonment. For some w/stigma & penalty, subj mens rea constitutionally req’d. Fault req’t is all that separates murder & manslaughter, so can’t be guilty of murder w/o subj fault. Can have substitute element as long as it satisfies constitutional req’t. Says provision violates Charter, so struck down. McIntyre J (dissenting) says provision constitutional – says debate is semantic, not constitutional. Doesn’t establish min, just that there is one.
Martineau – Again, constructive murder. Min fault req’t = subj foresight of likelihood of death. Strikes down remaining constructive murder provisions. L’Heureux-Dube J (dissenting) says req’s obj forseeability & giving policy reasons to support constructive murder.
First degree murder – s231. Both 1st & 2nd degree carry mandatory life sentence, but differ in when eligible for parole (1st: 25 years, 2nd: 10-25). Murder is 1st degree where it is planned & deliberate, when victim falls into certain categories (ex cop acting in course of duties), & when committed during certain other offences (ex forcible confinement, sexual assault).
Smith – Accused & victim & friends drinking, got some guns & drove to old farmhouse & started shooting things. Accused & victim seen arguing, accused shoots victim repeatedly. Issue is if killing planned & deliberate. Everyday interpretation fine – planned = previously formulated scheme/design, deliberate = considered/not impulsive. Ct says no evidence of planning here – how far in advance must plan be made?
Nygaard & Schimmens – Issue is constitutionality of elevating murder where only intent to cause serious injury & recklessness as to death; can have 1st degree murder w/o intent to kill? Distinction btn intents is trivial, so it’s constitutional.
Munro & Munro – Killed on-duty cop. Issue is if Crown needs to prove accused knew or was reckless to identity. Ct says there was evidence accused was reckless to identity, so appeal dismissed. Doesn’t decide issue.
Collins – Similar to Munro. Onus on Crown to prove accused knew or was reckless to victim’s identity as police officer (req’d by s7) – But this is Ont CA – Issue not yet addressed by SCC.
Arkell – Talks about elevating murder when committed during certain other offences. Says it’s then 1st degree whether or not planned & deliberate. Appellant said list arbitrary & irrational, ct says no: they’re all crimes of illegal domination, so it’s constitutional.
Charter minimums for a few crimes – have min for murder, attempted murder, war crimes, crimes against humanity, & probably theft (mentioned in obiter in Vaillancourt?). No min for dangerous driving or manslaughter.
[edit] THREE TYPES OF CRIMES SINCE CREIGHTON
Crimes requiring subjective awareness
Common law presumption – Where subj mens rea req’d by Statute, see wds like “knowingly”, “wilfully”, & “intentionally.” Crimes presumed to have subj mens rea unless otherwise stated.
Motive – Different fr intention (intent often has to be proved, motive never has to be proved). Louis – Discusses relationship btn motive & intent. Motive relevant & admissible, but not req’d. Occasionally (ex. w/anti-terrorism Legislation) motive req’d now if offence so described. Mathe – Accused started to rob bank, then left & said just kidding. What is the legal effect of a joke? More relevant to motive & sentencing than to guilt/innocence.
Desire/purpose – Req’d for some crimes in Code, but what does purpose mean? Hibbert – About provision in Code for aiding. 2 traditional defs for purpose: desire & intent. W/respect to aiding provisions, means intention. Kerr – Prisoner walking around w/shank; told he would be attacked next day, so carried shank, killed attacker. Charged w/possessing weapon for purpose dangerous to public peace. Ct says purpose was not dangerous (self defence), so acquitted. Test = determine purpose (subj), then if it’s dangerous (not clear if obj or what).
Intention or knowledge – 3 levels of subj mens rea: intent, recklessness, & wilful blindness. Normally any one fine, but some crimes req subj intent. Buzzanga & DuRocher – Leading case on knowledge & intention; deals w/promotion of hatred, where recklessness/wilful blindness not enough. Made fake hate literature to try & stir up French community, ct said not wilful promotion of hatred. Here, Parliament to limit fault req’t to intention, so recklessness not enough.
Recklessness or wilful blindness – Theroux – Accused ran construction company & led buyers to believe deposit insured when it wasn’t; company went bankrupt & he was charged w/fraud. He said honestly believed deposits would be fine. No defence b/c similar to desire & he was still reckless b/c knew of the risk. Sansregret – Gives definition for recklessness & wilful blindness. Recklessness = knowing risk & doing it anyway. Wilful blindness tantamount to knowledge – accused aware of need for inquiry & doesn’t do it b/c doesn’t want to know truth. Blondin – Brought hash into Canada in scuba tank. Knew something illegal was in tank, but didn’t know it was hash. If he knew it was a narcotic in the tank, he’s guilty. Currie – Cashed cheque for stranger; cheque was forged – was accused wilfully blind to cheque being forged? No; maybe he should have been suspicious, but not enough suspicion to be wilful blindness. Duong – Charged as accessory for harbouring friend, who had killed 2 people. Knew friend was in trouble but didn’t ask if friend had killed people. Ct says this is enough basis for wilful blindness.
[edit] Crimes of objective fault
Criminal negligence – s219 – Most important area w/no subj fault. Guilty if do/omit to do anything showing wanton/reckless disregard for safety of others.
Rogers – Accused used to be a doctor, lost license & became naturopath. Victim was kid w/chicken pox & eczema, parents brought to accused. Accused gave parents new diet for kid to “cure him,” but diet not good for kid’s condition (it was low protein & bad for him). Kid got sicker, died. Issue was mens rea. S187 makes legal duty for people who undertake to administer medical treatment & duty includes that have reasonable knowledge. Someone w/reasonable knowledge (as accused had, ‘cause he’d been to med school) should have known it wasn’t healthy, regardless of honest belief to contrary. Continuing w/diet was reckless.
Tutton – Religious parents that repeatedly took child off insulin even though doctors said not to. Issue was fault req’t. McIntyre J says test is reasonableness (what would reasonable person do?), Wilson J says it’s wilful blindness (both are minimal subj mens rea). Neither is majority, so don’t know which to use, but negligence gen’ly obj (so McIntyre J’s).
Anderson – Drunk driver. Whether fault req’t subj or obj, req’s marked departure fr norm.
Marked departure test – Shouldn’t base criminal liability on simple negligence, should be something more – need marked departure from norm. Marked departure test used in criminal negligence.
Hundle – Driving dump truck downtown in rain & knew truck overloaded. Ran red light & got in accident. Killed other driver & charged w/dangerous driving causing death. Issue was fault req’t: modified obj test – take into account circumstances, then look @ if behaviour = marked departure fr norm on obj standard (test on p537). Tells us marked departure test not only relevant in criminal negligence cases – also in dangerous driving causing death.
Creighton – Drug user doing drugs w/victim. Injected cocaine into victim’s arm w/her consent & she stopped breathing. She died, he was charged w/unlawful act manslaughter. Issue was fault req’t: an offence based on predicate negligence/carelessness offence also req’s marked departure test. In test, we consider special training or experience the accused has (here, accused experienced drug user); only consider personal vulnerabilities if they go to incapacity.
[edit] Crimes based on predicate offences
DeSousa – Fight broke out at party, accused threw bottle @ wall & broken glass flew into victim’s arm. Issue = fault req’t. Ct says need fault req’t for predicate offence & additional element. To qualify as a predicate offence, must be codified in Statute & can’t be absolute liability (& constitutionally valid). Here wd “unlawfully” means act must be obj’ly dangerous & harm must not be trivial. No marked departure test unless req’d for predicate offence.
Creighton – Recall issue was fault req’t for unlawful act manslaughter. Mens rea same as for unlawfully causing bodily harm – must be more than absolute liability. Talks about factors that suggest constitutionally req’d min (stigma, penalty, etc) & says fault req’t is obj forseeability of risk.
Krushel – Continues idea that need symmetry btn actus reus & mens rea. Dealt w/constitutionality of stalking provisions. No req’t of absolute symmetry.
[edit] Rape and Sexual Assault
RAPE LAWS IN CONTEXT – Called rape prior to 1982, sexual assault since 1982. Both req non-consent to sexual activity as element. Sensitive gender issue. Several rape myths: 1) rapes not common (they really are); 2) rapes happen in dark alleys & rapists are strangers (most are actually acquaintance rapes, which are just as bad or worse); 3) victim did something to bring the rape on self (traditionally, victims blamed; led to asking re: prior sexual history in ct b/c promiscuous women thought to be less credible; led to revictimizing); & 4) rape = theft of sexual property.
[edit] Prior sexual history
– Complainant’s prior sexual history often became focus of trial. Thought to go to issue of consent (if you’ve had sex, you’re more likely to consent, esp if you’ve had sex w/accused) & credibility (sexually active or “promiscuous” thought to mean less credibility).
[edit] Doctrine of recent complaint
Complainant must report rape @ first reasonable opportunity & must do so spontaneously (i.e., without coaxing), or judge had to point out that didn’t & complainant less credible.
[edit] More
Corroboration – Needed evidence to corroborate complainant’s testimony, but often no witnesses & no evidence in rapes.
Young article: In 1990s, started seeking complainant’s psych records to suggest making up the rape. Could be relevant if shows complainant wasn’t raped, but clear privacy issues.
Bala article: False memory syndrome = phenomenon in 1990s where recollections of prior sexual assault (often childhood memories) turned out to be false. Everything about it is confidential.
DEFINITION OF RAPE – Offence provision found on p584. This is old definition. Excludes man forcing sex w/wife (b/c she’s thought of as his sexual property). Supports idea that, once consent given, can’t withdraw consent. Consent vitiated where obtained by threat/violence/fraud/etc (but is this really consent?). Provision limited to sexual intercourse & req’d penetration (which is difficult to prove). No mens rea req’t in provision. Biggest issue has been mistaken belief in consent (a defence to rape b/c negates part of mens rea).
Pappajohn – Complainant was real estate agent. Long lunch, drank a lot, went to his house. A few hours later, she ran out naked w/hands tied & claimed he raped her. Few injuries, house was tidy; he said sex was consensual. Ct said mistaken belief negates mens rea so it’s a defence & majority said no reason to put to jury here (evidentiary burden not met). Cites two cases where mistaken belief arose: Plummer, where accused raped & threatened complainant, then left & friend raped her; she was too afraid to protest, so he thought it was consensual; & Morgan, where guy drinking w/friends, tells them to have sex w/his wife & that she will protest but it was an act. Belief must be honest but can be unreasonable.
Sansregret – Complainant & accused lived together, then broke up; he showed up drunk & she had sex to calm him down (reported to police). He broke in again & threatened her, she had sex to calm him down, & he was charged w/rape. Issue was defence of mistaken belief. Ct says wilfully blind to her non-consent. Says honest belief must be that consent not result of threats/etc. Wilful blindness may not be enough for mistaken belief (but ct says he knew, so no issue here).
[edit] SEXUAL ASSAULT
To recognize rape as crime of violence more than of sex, replaced rape provisions w/sexual assault. See ss271 to 273 for sexual assault provisions – tiered like regular assault. New provisions gender neutral & no more spousal immunity. Consent vitiated if results fr threat/violence/etc. S265(4) defines defence of mistaken belief. Also ss276 & 277 (rape shield provisions) limit when complainant’s sexual history admissible. S275 eliminates doctrine of recent complaint & s274 eliminates need for corroboration. Chase – Leading case on definition of sexual assault. Accused was complainant’s neighbour, went to complainant’s (15 year old girl) house & fondled breasts. Issue is if non-consensual touching is sexual assault. Sexual assault falls under assault, so any form of assault can ground sexual assault if there’s a sexual component. Circumstances must be of sexual nature & sexual integrity of victim violated (judged obj’ly). Don’t need sexual gratification or intent that act be sexual.
Bulmer – Prostitute had sex w/3 men, but claimed only consented to 1. Confirms that mistaken belief doesn’t need to be reasonable; s265(4) doesn’t change defence. Notes have Osselin, which says accused must meet evidentiary burden for defence (not Crown).
Davis – Reviews law on mistaken belief & leading case on air of reality. Mistaken belief negates mens rea. Before defence can be considered, need air of reality that complainant did not consent & that accused honestly believed they did consent. Judge shouldn’t consider the merits of evidence, just if there’s enough evidence to ground defence; mere assertion not enough.
Defence amended in s273.2 after Bulmer & Davis.
Bodily harm means injury that interferes w/health or comfort & is more than transient.
Definition unclear, could include psychiatric harm.
Less debate re: consent b/c myths abandoned. Issue now is what can be raised to question credibility. Rape shield laws protect victims’ rights, but sometimes past history is only way to question credibility.
Seaboyer – Said ss276 & 277 (rape shield laws) violated s7 of Charter b/c excluded evidence potentially necessary for fair trial. Ct says don’t want to limit accused’s right to bring evidence unless necessary & says rape shield laws try to protect victims. S277 okay, s276 is blanket exclusion w/only 3 exceptions, but there could be other situations where evidence crucial, so violates s7 & not saved under s1, so s276 struck down. Gives guidelines about when evidence admissible: can’t be used to prove myths, but should be admitted where has probative value that outweighs prejudicial effect.
[edit] Rape Shield / BILL C-49
Rape shield - Bill C-49 introduced to replace s276. Suggests process similar to what ct said in Seaboyer. Has blanket exclusion of evidence to support myths & allows evidence of specific instances of sexual activity (no reputation evidence) if has specific probative value not outweighed by prejudicial effect.
Darrach – Brought same Charter challenge as in Seaboyer, & unanimous ct upheld Bill C-49.
Consent – Defined in s273.1(1) as voluntary agreement to the sexual activity. Only applies to consent in sexual assault & includes list (not exhaustive) of ways consent can be vitiated. Can withdraw consent.
Mistaken belief in consent – Defence to any form of assault b/c negates mens rea about consent. Belief doesn’t need to be reasonable (only honest), but s265(4) says judge must instruct jury to consider whether belief was reasonable. S273.2 limits defence when used in sexual assault cases; s273.2(b) implies that accused must take some (but not req’d to take all) reasonable steps to confirm consent.
Ewanchuk – Leading case on sexual assault in Canada. Accused repeatedly initiated sexual touching of complainant & each time complainant protested (he would stop briefly & start again). Trial judge accepted non-consent, but complainant was terrified & tried to hide fear, so issue was if accused could have held mistaken belief that she consented. At trial, ct said her subj consent didn’t matter – she hid fear, so consent was implied. SCC overturned b/c clearly sexual assault. Consent is subj & no defence of implied consent.
Further advances to “test the waters” = sexual assault. Lots of backlash fr appellate decision & L’Heureux-Dube J’s minority judgment.
Reasonable steps under s273.2 – Not discussed in Ewanchuk b/c no air of reality to defence. Reasonable steps test in Malcolm excerpt (p662): look @ subj circumstances, then ask what reasonable person would do in circumstances.
Cornejo – Worked w/complainant & went to her house; she was sleeping, started kissing her & undressing her. Accused claimed she lifted pelvis, which he took as consent to sex. She woke up & protested. Issue is if lifting pelvis gives air of reality to defence. Ct says no.
[edit] CHARTER ARGUMENTS
Several possible Charter challenges.
Darrach (again) – Charter challenge to reasonable steps req’t b/c of obj element in test. Ct said sexual assault not one of offences w/min fault req’t of subj mens rea under Charter.
[edit] Mistake
[edit] MISTAKE OF FACT
Easier to defend than mistake of law. This is where mistaken belief in consent falls.
General principles – Mistake of fact defence = assertion that mental element missing. B/c negates mens rea, works as a defence, but depends on fault req’t of crime: if subj mens rea req’d, any honest mistake is a defence; where obj fault, honest & reasonable mistake is a defence; where due diligence available, honest & reasonable belief a defence & onus on accused to prove reasonableness of belief; & where absolute liability, no defence b/c no fault req’t.
Charter standards - Potential Charter problem where defence removed b/c creates absolute liability, which can’t combine w/jail time (BC Motor Vehicles Ref).
Hess & Nguyen – Charged w/having sex w/girls under age of 14. Provision removed defence of mistake of fact & could lead to life in prison, so challenged under s7. Offends s7 & not saved under s1 b/c doesn’t even allow for due diligence, so reads down provision to make it constitutional. Dissent upholds provision under s1.
As to the nature of the offence – 2 approaches to when this exonerates accused: Tolson approach (if, had mistake been true, not guilty of any offence, then not guilty) & Beaver (exonerates where relates to essence of offence). Law not clear what approach to use, & can have different results. Mistake of facts definitely an offence – issue is what happens when, had mistake been true, accused still guilty of an offence (that’s where Beaver & Tolson differ).
Ladue – Charged w/trying to have sex w/dead woman; @ trial, claimed didn’t know she was dead. Ct said no defence b/c, if true, would be guilty of rape (more serious offence) b/c clearly she couldn’t consent (either dead or unconscious). Note that he would really be guilty of attempted rape b/c can’t rape a corpse.
Kundeus – Leading case on mistake of fact as to nature of substance in possession cases, but Beaver still leading case on mens rea for possession. Sold drugs to cop; thought it was mescaline, but it was LSD (more serious). Did he have mens rea for possession? Yes.
[edit] MISTAKE OF LAW
Generally ignorance is no excuse (s19 of Code). 2 major exceptions to s19: colour of right (in property offences) & officially induced error of law.
Policy considerations – Seems harsh to say ignorance is no excuse, but enforces same standard for everyone & doesn’t make it a good thing to be ignorant.
Esop – Foreign sailor committed “indecent offence” while on boat docked in England.
Act wasn’t’ a crime in his homeland – no defence.
Campbell & Mlynarchuk – Stripper charged w/performing immoral act (stripped nude).
Local judge had ruled stripping was okay & relied on this, didn’t know local decision overturned. She knew facts & was confused about the law, so no defence. Can’t rely on
trial judges to know the law.
Distinguishing mistake of law and fact
Prue & Baril – Deals w/automatic license suspension when convicted of certain offences, but no notice of suspension. Charged w/driving while disqualified. Mistake is not knowing law req’s automatic suspension. Ct says better understood as mistake of fact (thinking license valid).
Colour of right for property offences – Statutory defence that only applies to certain offences listed in provision.
Dorosh – Traded van for bunch of stuff, but stuff didn’t work so concluded deal was dead; took back trailer & sold it. Charged w/theft. Colour of right can be mistake of fact (ex belief he had a right to the trailer) or of law (ex belief that under law the deal was dead & the trailer his) – either way, mistake must give rise to belief that have a right to the thing. Crown must prove absence of colour of right.
Drainville – Accused thought aboriginals had claim to land, so protested w/them. Charged w/mischief & claimed colour of right b/c thought land was theirs. Must believe in legal right to property (moral insufficient).
Officially induced error of law – Common law defence, so more broadly applicable than colour of right.
Levis – Failed to renew & pay license in time; told he would be notified when renewal due, but notice got lost. No due diligence b/c accused was passive. Defence entitles to stay of proceedings, not acquittal. Accused must prove 6 elements: error of law/mixed law & fact, legal consequences of act considered, advice came from appropriate official, advice was reasonable, advice was wrong, & relied on advice in committing the act.
[edit] Incapacity
AGE – Children less able to appreciate issues involved, so not responsible for acts. Traditionally, child under 7 exempt & child btn 7 & 13 exempt unless Crown proved they understood consequences. In 1982, changed this so kids under 12 exempt. Kids treated differently – idea w/young offenders more focused on rehabilitating.
INSANITY/MENTAL DISORDER – Certain types of mental disorder negate criminal liability, but it’s a problem classifying mental disorders. Generally think someone would have to be crazy to perform criminal acts, but they should still be punished. Psychiatric classification – Problem w/integrating psychiatry w/law. Psychiatrists often the experts we see in trial, but fine line btn sane & mental disorder & btn different mental disorders. Law informed by psychiatrists, but independent. Psychopathy (antisocial personality disorder) esp an issue. Can be a defence if suffering fr mental disorder @ time crime committed or @ time of trial. Gives verdict of not criminally responsible by reason of mental disorder (NCR – not the same as not guilty). Under the Criminal Code – Formerly, had automatic suspension indefinitely in psychiatric facility, but this was struck down as unconstitutional in Swain. Replaced bys16 of Code (now have a hearing & one of: detainment in facility, conditional discharge, or absolute discharge, but in practice always detainment). Raises ethical dilemma if accused prefers to do prison time than be committed but if actually suffering from mental disorder.
Cooper – Suffering fr mental disorder throughout life & strangled friend. Unclear whether, b/c of mental disorder, knew that strangling could kill her. Didn’t plead insanity, but judge left it to jury – issue is if air of reality. Defines disease of the mind (impairs functioning & not transient) & appreciate (more than know, have to include consequences). Right to put defence to jury, but didn’t explain defence correctly; wrong to accept psychiatrist’s opinion that no disease.
Kjeldsen – Says psychopathy can be a disease of the mind, but won’t always lead to NCR verdict. Appreciation of nature of act doesn’t req typical emotional reaction.
Abbey – Knowingly imported cocaine, but under delusion that he would get away w/it. Not appreciating penal consequences not the same as not appreciating nature of act.
Chaulk – Interprets wd wrong (could mean illegal or immoral). Means more than illegal – morally wrong in the circumstances according to moral standards of society. Dissent says must appreciate it’s wrong in some sense.
Normally, defence brings up mental disorder, but Crown can raise it (but only after the accused is found otherwise guilty – can’t seek NCR where otherwise entitle to acquittal).
Mental disorder negativing mens rea
[edit] AUTOMATISM
Two types: mental disorder & sane. Sane automatism gives acquittal, mental disorder means committed to institution.
Rabey – Had crush on girl, attacked her. Claimed didn’t remember attack. Witnesses said sweaty & incoherent. Psychiatric evidence said no mental disorder. Distinction btn types of automatism is about disease of the mind, which is question of law for judge. 2 issues: whether condition is disease & whether accused suffered fr condition @ time of act – internal/external cause distinction or danger of reoccurrence determine whether it’s a disease of the mind. Leaves open psychological blow (sane) automatism, but everyday stresses not enough to be a psychological blow.
Parks – Sleepwalking & drove across town & attacked in-laws (killed mother, injured father); he’d been under stress & wasn’t sleeping well, & issue was sane automatism b/c asleep the whole time. No treatment, no evidence of disease of the mind. Automatism goes to actus reus (voluntariness). Reaffirms that jury decides whether suffering condition @ time of act @ judge decides whether condition is a disease of the mind (not bound to follow psychiatrists). Lamer J (minority) wanted common law peace bond considered.
Stone – Leading case on sane automatism. Arguing w/wife, she barraged him w/insults & he blacked out; woke up & she was stabbed 47 times. He fled to Mexico, then came back & turned himself in. Claimed sane automatism, trial judge said mental disorder automatism. Shifts burden of proof to show voluntariness or lack thereof to whoever raises the defence. Decide whether to put automatism to jury (is evidentiary burden met?) & then classify as sane/mental disorder, then jury decides whether suffered fr condition. Start w/presumption that disease of the mind.
Fontaine – Paranoid & on drugs, shot & killed someone. Trial judge said no basis for automatism despite expert testimony of disease of the mind, so new trial. Automatism should gen’ly be put to jury where asserted & there’s some corroborating evidence.
[edit] INTOXICATION
Same principles for alcohol & for drugs. Here, talking about voluntary intoxication (involuntary is different). Similar to mental disorder in that can render incapable of appreciating nature & quality of act, but here it’s brought on self. Some moral blameworthiness in getting drunk enough to commit a crime. Can get drunk enough to attack voluntariness.
Common law – Bernard – Lays out common law rule. Got drunk & raped friend.
Witnesses said drunk but coherent. Issue is when, if ever, intoxication can ground a defence. No majority decision. McIntyre J distinguishes specific & general intent offences – can be a defence w/specific intent offences, not w/general intent offences; w/general intent offences, infer intent to do act fr intent to get drunk (substitute mens rea). Wilson J agrees, but doesn’t like substitute mens rea & wants to leave open intoxication defence where so drunk that you’re acting involuntarily. Dickson J says intoxication considered in determining whether had mens rea (always considered) & wipes out specific/general distinction. La Forest J shares Dickson J’s concerns, but agrees in result w/McIntyre J & Wilson J.
[edit] Charter standards
Daviault – Here, the ct chooses which decision fr Bernard is the law. Another sexual assault case w/intoxication defence. Issue is if intoxication can ground defence to general intent offences & if Charter makes a difference. Specific/general distinction upheld & Wilson J approach adopted. Leary rule offends ss7 & 11(d) of Charter b/c accused can be convicted of general intent offence w/reasonable doubt of guilt. Wilson J’s rule is Charter minimum. When accused raised defence of extreme intoxication, burden is on accused to prove defence on balance of probabilities. Dissent wants to uphold Leary rule & not allow intoxication defence to general intent offences.
Bill C-72 – Lots of uproar after Daviault, so this bill introduced. Led to s33.1 of Code. Bill concerned w/protecting people against drunken violence. S33.1 excludes extreme intoxication not a defence, even if no intent, in crimes of violence if it is a marked departure fr norm. Remains to be seen if this is constitutional. Note that s33.1 doesn’t apply to specific intent offences.
Robinson – This case deals with jury charge on intoxication defence. Issue is whether to use word incapacity. Jury should only consider whether accused had intent, not whether had capacity to form intent & then whether had intent. But if experts mentioned capacity or if defence wants it, then mention capacity in jury charge.
[edit] Justifications and Excuses
These are “true defences” – even where all elements of offence made out, exonerate accused (in contrast to automatism, mistake of fact, etc... which negate an element).
WHY ALLOW COMMON LAW DEFENCES? - Can be grounded in Statute or common law. No more common law offences since Criminal Code, but still have common law defences (preserved in s8(3)) b/c can’t foresee all possible defences.
AIR OF REALITY – 2 steps to proving a defence: meet evidentiary burden (decides whether defence put to jury) & meet persuasive burden. To meet evidentiary burden, need air of reality – if don’t, risk judge expressly removing defence fr jury’s consideration. Evidentiary burden always lies w/accused, persuasive burden varies (& varies what the standard is).
Cinous – Gives test for evidentiary burden: is there evidence upon which a properly instructed jury could acquit? Judge must put all applicable defences to jury (whether or not defence raised them) & trial judge must not put defences to jury that don’t arise on the facts. Consider all evidence, but don’t weigh its merits.
Fontaine – Defines reverse onus as where the accused has both evidentiary & persuasive burden. Generally, Crown bears onus to disprove (persuasive burden). Restates air of reality test & says it applies regardless of whether reverse onus defence or regular defence.
[edit] NECESSITY
Dudley & Stephens – Shipwrecked sailors kill companion to survive, then plead necessity. Necessity cannot be a defence to murder.
Perka – Drug smugglers forced to go ashore in Canada. Issue is interpretation of defence: is it justification (justifiable in emergencies to break the law if it avoids harm greater than breaking law) or excuse (excusable to break the law if not doing so imposes too great a burden on accused). Necessity is an excuse – gets @ moral involuntariness. 3 req’ts: imminent peril, no reasonable legal alternative, & avoided harm must be proportionate to inflicted harm in breaking the law. Defence still available if doing something illegal.
Latimer – Euthanized daughter, who had cerebral palsy; claimed defence of necessity. Accepts Perka & elaborates proportionality req’t (harms must @ least be comparable). Is necessity subj or obj? 1st 2 req’ts judged as modified subj-obj & proportionality = obj. If no air of reality to any of 3 req’ts, then no air of reality to defence.
[edit] DURESS
s17 and the common law – s17 codifies common law defence. Code includes immediacy req’t (immediate threat of death/bodily harm), presence req’t (person threatening you must be there), belief req’t (the accuse must believe that the threats will be carried out) & provides for exclusion of some offences. Also says that, where commit crime in presence of spouse, no presumption you do it @ spouse’s compulsion (rebuts common law presumption).
Carker (No 2) – Prisoner who vandalized farm during riot. Raised defence of duress, but ct said future threats don’t meet immediacy req’t. S17 completely supplants common law defence.
Paquette – Innocent bystander shot during robbery, accused drove robbers there (they threatened to shoot him if he didn’t), but duress excluded fr murder by s17. Ct said exclusion limited to people who commit offences & doesn’t apply to aiders & abettors/etc. Adds req’t to s17 defence that you actually commit the offence.
Hibbert – Charged as party to attempted murder. Went to victim’s apartment & tried to entice victim down for attacker, but only did it under threat of death. B/c party, we’re dealing w/common law defence. Like necessity, based on moral involuntariness. Must be no safe avenue of escape (judged obj’ly).
Charter standard of moral involuntariness
Ruzic – Charged w/importing heroin, but only did it b/c mob threatened her mother back in Serbia if didn’t. Didn’t meet s17 req’s b/c no immediacy/presence, but misses some morally involuntary behaviour. Moral involuntariness req’d by PFJs by analogy to physical voluntariness req’t. Immediacy & presence mean that threatener in position to immediately carry out threats & can apply where threat is to 3rd party. Common law defence available where s17 violates s7 of Charter. Excluded offences may be unconstitutional, but no cases on this yet. Duress is an ordinary defence.
[edit] DEFENCE OF PERSON
ss34-37 of Code. Often referred to as self-defence, but more broad b/c applies to defence of 3rd parties too. Justifies what would otherwise be assault if done to protect self/another fr harm. S34(1) more general, but s34(2) only applies where defence causes death/grievous bodily harm; s34(1) req’s that the accused not provoke the attack, but s34(2) speaks to provocation; s34(1) req’s no intent to cause death/bodily harm, but s34(2) covers when you intend it; s34(2) req’s reasonable apprehension of death/grievous bodily harm to accused; s34(1) says no more force than necessary; s34(2) says must have believed on reasonable grounds that no other way to escape death/harm. Note that s34(1) can also apply where death/grievous bodily harm results.
Pintar – Says defence of person provisions are confusing. Ct should consider which self defence provisions apply & only instruct on those. Where a wider defence available, instruct on that one. S34(2) is wider than s34(1), so gen’ly use that one in murder cases.
Bogue – Dysfunctional relationship, got in fight & she hit him on head with iron, then stabbed him to death. Distinguishes ss34(1) & 34(2). S34(2) only applies where intend to kill/cause bodily harm (this is contrary to Pintar, but Pintar prevails). In either case, don’t need to weigh force exactly. Belief that no other to save self fr death/bodily harm can be mistaken.
Deegan – Deals w/whether there’s obligation to retreat. Similar to safe avenue of escape in duress, but no absolute duty to retreat here. It will be considered. No duty to retreat fr your home.
Lavallee – Abusive partner. One night, he threatened her & she shot him as he was leaving room. Issue is if s34(2) applies where threat not imminent & how we judge reasonableness of her actions. Battered spouses unique. Imminence req’t there to ensure force necessary, so can be relaxed when we know force needed.
Petel – Shot daughter’s boyfriend & friend. Living in her house, dealing drugs & threatened her. Had tried to kick him out, but no luck. Issue was relevance of threats/violence prior to day of. Imminence only a factor to consider – not req’t. Key issue is defensive action of accused, not whether assault was occurring @ time of act – did accused have necessary state of mind? Here, earlier threats needed for determining state of mind of accused. Could be inconsistent w/Creighton, where we wanted an objective standard to hold everyone to same standard, but here we’re taking into account personal characteristics/circumstances.
Malott – Killed abusive partner & former spouse’s girlfriend. Re-evaluates battered woman syndrome fr Lavallee. There, expert testimony was admitted to overcome stereotypes, but battered woman syndrome is not a free-standing defence. Lavallee didn’t loosen the obj standard. Be cautious about syndromizing battered spouses.
[edit] DEFENCE OF PROPERTY
Codified in ss38-42 of the Code. Much more limited than defence of person. Focus on s41, which is about defence of a home.
Baxter – Shot trespassers. Code provisions clarify & refine common law defence. Can only use what force is necessary. Here, no risk to property. Can’t shoot mere trespasser. S41(2) says trespassers can’t resist eviction fr property, but resistance must be use of force to qualify as an assault (need more than passive resistance).
Gunning – Uninvited guest @ his party, got gun to scare him off, then accidentally shot him. Argued that use of gun justified in defence of property. S41(1) has 4 elements: possession of property, peaceableness of possession, victim must be trespassing, & force must be reasonable in circumstances. Killing trespasser only justified in defence of person. Once raised, it’s up to Crown to disprove defence. Judge can never instruct jury as to whether an offence is made out.
[edit] PARTIAL DEFENCES TO MURDER
Won’t lead to full acquittal, but will reduce murder to manslaughter.
Provocation – Murder reduced to manslaughter when committed in heat of sudden passion caused by provocation. Codified in s232. Provocation must be wrongful act or insult.
Hill – Teenage boy killed “Big Brother” after Brother made sexual advances. 3 questions to determine if defence applies: would an ordinary person be deprived of self-control by insult? was the accused? did the accused act suddenly & before had a chance to calm down? (1st obj, 2nd & 3rd subj). Issue was if ordinary person meant ordinary person of age & sex of accused – does, but jury doesn’t need to be told that. Ordinary person not exciteable or intoxicated.
Thibert – Killed wife’s lover who was taunting him (waving her around). Issue was if provocation arose on facts. Ordinary person standard tricky b/c ordinary people don’t kill. Can consider relationship btn victim & accused in obj step.
Nahar – Sikh couple, married young. Moved to BC & she was unhappy, ran off & broke
Sikh tradition. He visited her, she said she wouldn’t go back to him & he killed her. Issue was whether to consider cultural setting of her acts in deciding if an insult. Yes, but don’t need to articulate it to jury. Can have one last insult in string of repeated insults that pushes accused over edge.
Parent – Anger is not a stand-alone defence or a partial defence, but can be part of provocation & could maybe go to psychological blow automatism in the extreme.
Cameron – Dealt with constitutional challenge to provocation provisions b/c of objective standard (denied)
Voluntary intoxication – already covered this. Reduces murder to manslaughter (b/c murder = specific intent & manslaughter = general intent).
Cumulative effect on intent – If a number of defences raised on the facts, consider cumulative effect of all of them together in deciding if have requisite mens rea.
Nealy – Stabbed & killed acquaintance. He was intoxicated, there was potential self-defence & a potential self-defence claim. Judge shouldn’t compartmentalize all defences together – even if none work on their own, could work altogether.
[edit] ENTRAPMENT
When police lead someone to commit a crime they wouldn’t have otherwise committed. 2 basic fairness concerns here: moral blameworthiness (it’s not that morally blameworthy if wouldn’t have committed the crime) & police misconduct (they should stop crime, not entice more crime; random virtue testing not proper exercise of police power).
Mack – Entrapment is very narrow. 2 step test: entrapment is where 1) authorities provide attempt to commit crime not as pt of bona fide inquiry, or 2) authorities induce commission of offence (regardless of whether inquiry is bona fide). Focus is on police conduct, so assess obj’ly. If accused has past criminal history, only relevant in first category above. Includes list of factors that help decide if it’s random virtue testing. Guilt must be established before entrapment considered. Leads to stay of proceedings, not acquittal. It’s a question of law for judge. Defence succeeds when accused proves it on balance of probabilities.
Barnes – Applies Mack. Accused singled out by undercover cop b/c of clothes & she asked him to sell her drugs; he reluctantly did when she persisted. investigation was ongoing in that area, so inquiry good & no entrapment.
[edit] Parties to a Crime
Dealing w/people who don’t actually commit crime, but they’re still guilty b/c help & encourage crime.
[edit] AIDING AND ABETTING
S21 of the Criminal Code. You’re a party if you commit the crime, do/omit to do anything for the purpose of aiding the crime, or abet someone in committing it.
Dunlop & Sylvester – Biker gang members went to party where woman gang-raped. She named them as rapists, but they claimed they only delivered beer & didn’t know rape going on. Charged w/aiding & abetting. If jury satisfied they’re guilty as either aiders & abettors or as principals, that’s enough. Facts didn’t support aiding & abetting or common intention, so shouldn’t have put them to jury. Presence @ scene not enough for aiding/abetting. Gives definition & examples of aiding & abetting.
Laurencelle – Owned house w/another. Other homeowner & some friends kidnapped a guy while she was away. Came back & she was afraid of one of friends, so couldn’t let victim go. Tried to make him comfortable. Charged w/aiding & abetting kidnapping. Trial judge implied duty to leave when realized kidnapping going on, but SCC sways that’s not enough for aiding & abetting. Couldn’t make them leave, couldn’t do anything.
Common intention – S21(2) deals w/common intention (where multiple people form intention in common to commit a crime & each knows/ought to know that commission of offence is probable consequence of carrying out the purpose.
Logan – Accused & friends undertook robbery & someone died. Accused didn’t shoot them, but was convicted of common intention. Issue was constitutionality of obj standard imposed in s21(2). Parliament allowed to have different fault levels for principals & parties, but if offence has constitutionally req’d minimum fault level, then can’t be convicted as party w/o meeting that minimum. 2 step process: figure out if constitutionally req’d min &, if not then s21(2) is fine & if yes, then make sure that min met too.
Portillo – Reviews s21. Both involved in strangling victim, but not clear who strangled. Liability of each accused must be determined separately. If jury satisfied they participated in killing (did something to cause death or to facilitate killing), then guilty. With s21(2), Crown must prove: that accused was pt of common design to steal from deceased, that someone else pt of common design killed the deceased, & that accused knew that death was probable consequence of common design. Note: obj standard read out.
[edit] COUNSELLING
In s22 of Criminal Code: to procure, solicit, or incite a crime. Also s454(a) discusses counselling an offence that is not committed (still guilty of an attempt).
Hamilton – Leading case on counselling. Sent out teaser email advertising machine to generate credit card numbers; charged w/counselling fraud. Actus reus = actively encouraging crime (if it’s socially harmful to do it, then it’s just as socially harmful to counsel someone else to do it). Mens rea = intending offence to be committed or knowing it will likely be committed (can be intent or recklessness, maybe wilful blindness). Trial judge acquitted b/c motivation monetary rather than malicious, but didn’t discuss mens rea so new trial. Dissent said recklessness not enough for mens rea.
[edit] ACCESSORY AFTER THE FACT
In s23 of Code. Knowing that someone has committed an offence, receiving, comforting or assisting them for the purpose of helping them get away makes you an accessory after the fact. Recall from Duong that you can be an accessory if you’re reckless or wilfully blind (not only intentionally). Shalaan says can be convicted as accessory even if principal can’t be convicted (fr s23.1 of Code).
[edit] Incomplete Crimes
ATTEMPTS – Taking steps to commit a crime, but the crime isn’t completed. 3 issues: mens rea, actus reus & how close you have to be to completion of the crime, & attempting something impossible. Covered in s24 of the Code. Require more than mere preparation – need actual steps toward committing offence. S24(2) says that question of whether something is preparation or more is a question of law. S463 has general punishment provisions – if max penalty for offence is life, max for accessory after the fact or attempt is 14 years. S239 deals w/attempted murder. Ancio – Jilted husband went to wife’s boyfriend’s place with sawed off shotgun, they struggled & gun went off (not clear if accident). Issue was mens rea for attempted murder. Distinct fr murder, so don’t need the same mens rea. The act performed doesn’t need to be criminal on its own. Mens rea of attempted murder is intent to kill (more strict than that of murder).
Sorrell & Bondett – Went to restaurant to rob it, but it was closed. Rattled door, then left. Is this enough to be the actus reus of an attempt? Did they have the mens rea? Mens rea is a question of fact, & trial judge found no mens rea here, but if it was, ct says acts enough for actus reus.
Deutsh – Tried to recruit salespeople & told them they’d have to have sex w/clients to close deals. Charged w/attempting to procure people to have illicit sex. W/o offer of employment, didn’t go beyond mere preparation. Distinction btn prep & actual steps is qualitative; consider difference btn completed offence & what’s been done & whether further acts req’d. Act doesn’t lose quality as actus reus b/c other steps req’d in commission.
S24(1) says doesn’t matter if it’s possible to commit the offence. Dynar dealt w/impossible attempts. Literature differentiates legally impossible (the act isn’t actually illegal) & factually impossible (attempts run up against some obstacle that prevents completion). Dynar (American case) said no legally relevant difference btn legally impossible & factually impossible. Where the act intended is not a crime, no guilt b/c no wrong in eyes of law.
CONSPIRACY – Agreement btn 2+ parties to commit a crime. Offence is making the agreement – no steps req’d. Punished as severely as actual commission of the offence. Found in s465 of Code (s465(1)(a) is about conspiracy to commit murder, s465(1)(b) about conspiracy to have someone falsely prosecuted, s465(1)(c) is about conspiracy to commit an indictable offence, s465(1) d) says conspiring to commit an indictable offence will have you punished as if you committed the offence). Actus reus req’s meeting of the minds about agreement, so no conspiracy where someone pretending (compare to counselling, that doesn’t req more than one person).
Celebrity Enterprises(No 2) – Charge was conspiracy to commit public mischief (under conspiracy to commit an unlawful act, since repealed), but no Code provision against public mischief – could unlawful purpose be common law offence? No b/c common law offences abolished.
Gralewicz – dealt w/same issue where “unlawful purpose” wasn’t an offence. Unlawful purpose means prohibited by federal or provincial Legislation (provision repealed after this case b/c too limited).
Innocente – Where conspiracy encompasses multiple illegal activities, how many charges are appropriate? Convicted of being part of drug trafficking conspiracy, then evidence came up about new plan to transport different drugs & involving different people – charged w/second conspiracy & pled autrefois convict. Ct said better seen as all one conspiracy.
Many problems w/inchoate (incomplete) liability (ex attempts, conspiracy, sometimes counselling, etc). How far do we extend liability? Attempts close to the actual offence, but conspiracy/counselling further away. intent alone not covered, but where do we draw the line? Can we combine two forms of inchoate liability (ex attempt to attempt, counsel to conspire)?
Dungey – Specifically about attempted conspiracy to commit indictable offence. Accused was lawyer who tried to get client to help defraud law society, but client never seems to have agreed. Attempting to conspire extends liability back to pure intention, which is too far. Affirmed in Rery. Ct said counselling might have worked, but Crown didn’t charge him w/counselling.
