Burden of Proof by vs32eC4

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									Note: The course text used was Criminal Law and Procedure 6th edition by Roach, et al.
Although I got a very good grade in Criminal law, I still suggest using other summaries
as well since there may be things that are missing here and are only available in my head.


Theories of Law
Utilitarianism:
    - Punishment is justified if it prevents more harm through crime than inflicted
        through punishments (a cost benefit)
    - General deterrence: The law threatens a given punishment for a given crime, in
        order to deter people from committing the crime.
            o Punishment is given to people who commit it to keep deterrence alive (so
                no one will say it’s bullshit)
    - 2 conditions for punishment:
            o 1) Harm to victims prevented exceeds the harm to offenders inflicted
            o 2) Same prevention could not be achieved through a lesser punishment or
                no punishment at all.
    - Other methods include rehabilitation and incapacitation. These are individual
        because they seek to SPECIFICALLY deter people.

Retribution:
   - Criminals deserve to be punished.
   - This makes them equal with society; because by breaking law they gained
       advantage over others.
   - The idea that if you get punished, you did it to yourself.
   - Must have free will
   - Ignorance of the law is no excuse
   - Must have subjective foresight.

       Mandel:
             among population charged with criminal offences there is a severe
               overrepresentation from lower classes of society (poor, unemployed,
               aboriginal)
             crime is an intra-class phenomenon
             distinction between the types of crime leads to unequal treatment …
               ‘white collar’ crime is usually a regulatory offence punishable by a
               fine even though it may cause serious damage to others
             everyone is considered equally free, no matter how rich or poor; when
               there are differences in social class, the victims is usually the weaker
               party

Denunciation:
- argues that punishment is justified b/c of its educative function and ability to reaffirm
our moral values
-punishment publicly communicates society=s abhorrence of acts that run contrary to our
crucial social values


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-it is morally right to hate criminals b/c their conduct represents an affront to our morality
-the criminal law is essentially a codification of our values and the violation of the law is
a violation of our values
-condemnation of crime facilitates the creation of a society in which there is mutual
respect for one another and this guards against crime
Burden of Proof
   -   Burden on Crown to prove guilt BARD is one of the most important safeguards in
       criminal justice system

Woolmington v. D.P.P. (1935) House of Lords
Story: - Convicted of Murder
Trial Judge:
    - Woolmington claims trial judge misdirected jury by telling them that he was
    presumed to be guilty of murder unless he can satisfy jury that it was accident
    - if killing is proved, then it’s up to accused to prove the circumstances (like
        accident to get manslaughter) otherwise law presumes that killing was in malice
        unless contrary is proved.
Appeal Judge:
    - dismissed cuz Appeal judge found that no substantial miscarriage of justice
        occurred
House of Lords:
    - Jury MAY (but not must) convict if crown proves killing, but accused doesn’t
        prove circumstances
    - Onus is STILL on prosecution; accused doesn’t have to prove anything
            o If Onus shifts to accused, then it’s like judge made decision which is not
                common law
    - If there is evidence, either by accused or prosecution that raises reasonable doubt:
        ACQUITTAL
    - Prosecution must prove a) murder b) malice either expressly or by implication.
            o eg: Implication of malice can be proved if intentional and unprovoked.
    - Once evidence is shown proving it, accused is entitled to show circumstances to
        raise doubt as to intent
    - If jury is satisfied by accused testimony or believes there is reasonable doubt
        ACQUITTAL
Verdict: APPEAL ALLOWED; CONVICTION QUASHED

If you do this, then you are Automatically charged with that…
R. v. Oakes (1986) Supreme Court of Canada
Story:
    - S. 8 of Narcotic Control act says that if you are found to be in possession, you are
        presumed to be and charged with trafficking, unless accused can prove contrary.
Trial Judge:
    - Convicted cuz he had possession so according to law he is guilty of trafficking


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   -   Presumptions can be rebutted in 3 ways
           o Accused raises reasonable doubt to its existence
           o Evidentiary burden to adduce sufficient evidence to bring into question
               truth of the presumed fact
           o Burden to prove on BALANCE OF PROBABILITIES the non-existence
               of presumed fact
Supreme Court:
   - Accused argues violates s.11 (d) of charter: innocent until proven guilty.
   - Accused argues violates s. 7 of charter: life, liberty…cuz social and personal
       consequences when didn’t do anything.
   - Sir Rupert Cross says: Forcing the Rebuttal of presumptions is not constitutional
       because jury may still convict even when they are not sure of guilt.
   - Rational connection between basic fact and presumed fact; ie, if you have drugs,
       you’re selling drugs; may be good evidence, but doesn’t prove BARD.
Can S. 1 JUSTIFY it?
   - Must prove in a “free and democratic society”
   - Courts recognize that rights in Charter aren’t absolute and may need to be limited
       (exceptions)
   - Onus to prove that s.1 justifies it rests on party seeking to uphold limitation, in
       this case: Prosecution
   - Oakes Test
               1. Pressing and substantial
               2. Proportionality Test
                       a. Rational connection
                                i. Measures adopted must achieve objective in question
                               ii. Not arbitrary, unfair or based on irrational consideration
                       b. Should impair rights AS LITTLE AS POSSIBLE
                       c. Proportionality between effects of limiting charter to objective.
                                i. Overall benefits outweighs its negative impact
Verdict: APPEAL ALLOWED; Rational connection failed

R. Whyte (1988) Supreme Court of Canada
Story:
    - s.258 of Crim Code says that when personos cjarged under 253, operating or
       having care or control of motor vehicle whether it is in motion or not while
       impaired, if it is proved that accused was in driver’s seat, he will be deemed to
       have care and control of vehicle unless he can prove that he didn’t occupy the seat
       for the purpose of setting the vehicle in motion.
Supreme Court:
    - In Vaillancourt, Lamar J. recognized that parliament can in some cases permit
       proof of a substituted fact to be taken as proof of an essential element of the
       offence; but there are limitations:
           o Valid ONLY IF upon proof BARD of the substituted element it would be
               unreasonable for trier of fact NOT to be satisfied BARD of the essential
               element
           o If trier still has doubt, then it would violate ss. 7 and 11.



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   -   Stress the importance that if there is reasonable doubt, then violates Charter
   -   PRESENT CASE says that intention to set vehicle in motion is not part of
       offence, therefore doesn’t infringe Charter.
           o Accused here is required only to disprove fact collateral to the substantive
               offence.
                    Oakes had to disprove an element of the offence (different)
   - Assumption nonetheless BREACHES Charter but justified under s.1 through
       Oakes test.
           o Rational Connection: every reason to believe that person in driver’s seat
               has case or control of vehicle.
           o Minimal Impairment: Accused only has to show on balance of probability
               that he was not going to drive it.
           o Proportionality: Threat to public safety outweighs limit on charter.
Verdict: APPEAL DISMISSED

R. v. Laba (1994) Supreme Court of Canada
Story:
    - Person who sells or purchases precious metals must establish ownership
Supreme Court:
    - Wide range of innocent people get caught so violates Charter and not justified.
    - BUT made it impose ONLY an evidential burden.
          o Just show a receipt.
          o Then crown would have to prove BARD that he is guilty.


R. v. Downey (1992) Supreme Court of Canada
Story:
    - S.195 says Person who lives or is always with prostitutes is living off the avails of
        them, unless proof of contrary is shown.
Trial Judge:
    - Did not violate Charter cuz only created evidential burden that could be rebutted
        easily
Supreme Court:
GREAT SUMMARY so far
    1. Presumption of innocence is infringed whenever the accused is liable to be
        convicted despite the existence of reasonable doubt
    2. If by provisions of a statutory presumption, an accused is required to establish on
        a balance of probabilities either of an offence or an excuse, then it violates
        Charter.
    3. Even if rational connection exists between established fact and presumed fact, it is
        insufficient to make a valid presumption requiring accused to disprove element of
        offense.
    4. Legislation which substitutes proof of one element for proof of an essential
        element will not infringe Charter if as a result of proof, it would be unreasonable
        for trier of fact not to be satisfied BARD of the existence of the other element.




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   5. A permissive assumption from which a trier of fact MAY but not must draw an
      inference of guilt will not infringe Charter.
   6. A provision that might have been intended to play a minor role in providing relief
      from conviction will nonetheless violate Charter if the provision (such as the truth
      of a statement) must be established by the accused.
   7. Some statutory presumption which infringe Charter can still be justified under s. 1

   -   Presumption in s.195 violates Charter since it can result in conviction despite
       reasonable doubt.
           o Eg: what if they are husband and wife
   - Oakes test
           o Rational Connection: YES
           o Minimal Impairment: YES, only evidential burden
           o Proportionality: YES, protect prostitutes who rarely would say something
Verdict: APPEAL DISMISSED

Dissent:
   - There should be a CERTAIN rational connection (like in care and control of
       vehicle) NOT possibility (like drugs and trafficking).
   - Catches too many innocent people (eg: brother and sister).

QUANTAM OF PROOF
   -   For recommendations by R. v. Lifchus see pps 280-281

R. v. Starr (2000) Supreme Court of Canada
Story:
    - Trial judge told jury that “reasonable doubt” had no special connotation and it did
        not require proof of an absolute certainty. Supreme Court said it was an error.
Supreme Court:
    - Not made clear to jury that crown was required to prove more than balance of
        probabilities.
            o Did not explain how much less than absolute certainty
            o Standard of proof is HIGHER in criminal than civil; jury must understand
    - Effective way to define reasonable doubt is to explain that it falls much closer to
        absolute certainty than to proof on a balance of probabilities
    - The fact that judge kept on saying that jury must convict BARD but NEVER
        explained properly what it means it wrong.
Verdict: APPEAL ALLOWED

Dissent:
   - Lifchus provides only guidelines
   - The fact that trial judge told jury that reasonable doubt had no special connotation
       is ok because he still explained what it meant.
           o Jury still knew that he was innocent until proven guilty
           o Jury still knew that proof was very high (below absolute certainty)
           o Jury knew they could not convict on Balance of probabilities


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   -   You shouldn’t isolate a single phrase and then judge it, must look at the entirety
       of the judge’s instructions
   -   Dissent would dismiss the appeal



Actus Reus
   -   Actus non facit reum nisi mens sit rea: There can be no culpable act unless it is
       performed with a culpable mental state.
   -   If you just think about the act, there is no crime without action

Voluntariness
   -   Can’t attribute liability unless person is responsible for his acts.
   -   Responsible people have to voluntarily perform the act
   -   We treat people as rational, autonomous and choosing agents (duress is acquittal)
   -   Criminal Liability also depends on the capacity to choose from right and wrong
       (insanity)
   -   Involuntariness can cover a wife range of conduct; incuding sleepwalking,
       reflexes, or accident.
   -   Essential characteristic of voluntariness is CONSCIOUS control.
           o Although sometimes u can be conscious and still reflex by accident
           o Conscious Choice
   -   Conscious choice implies mental element to actus reus.
           o Although it can still be distinguished from mens rea (intention, etc)

Contemporaneity
   -   Intent and act must occur to constitute crime

Fagan v. Commissioner of Metropolitan Police (1969) Court of Appeal
Story:
    - Fagan convicted of assaulting a police officer at trial division. He ran over foot of
       cop by accident, and then didn’t move it when asked to.
Court of Appeal:
    - Appellant argues that running over foot was accident, and refusing to remove it
       could not be assault nor could he have mens rea from original accident
    - Respondent argues that accident was actus reus and continued until he removed
       car off policeman. In between he developed mens rea and thus assault took place.
           o In the alternative, there can be situations an omission to act is a breach of
               duty that would amount to assault.
    - To constitute assault, some intentional act must have been performed, mere
       omission isn’t assault.
    - BUT it is not necessary that mens rea be present at the exact time of assault; it can
       be put on top of an existing act.
Verdict: APPEAL DISMISSED

Dissent:


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   -    Fagan didn’t hold the car there, it just happened to be there; he has no
        responsibility to remove it. It isn’t his fault.
   -    Dissent also dismissed the appeal

R. v. Miller (1982) Court of Appeal (but further appealed to House of Lords)
Story:
    - Guy lit cigarette and fell asleep. Cigarette started to burn mattress. He woke up
       and saw it but just went to another room. He was charged with Arson.
Court of Appeal:
    - Good sense suggests that we shouldn’t let him off just cuz of an omission.
    - An unintentional act followed by an intentional omission to rectify it or its
       consequences, or a reckless omission to do so when recklessness is a sufficient
       mens rea for the particular case, should only be regarded in toto as an
       intentional or reckless act when reality and common sense so require
           o This may well be a matter to be left to the jury.
    - There is no duty on him in criminal law to extinguish the fire but we can look at
       this as all one big act.
Verdict: APPEAL DISMISSED
House of Lords:
    - Actus Reus, while it seems to imply action, can also be inaction (omission)
           o Provided that at the moment of awareness, it lies within his power to take
               reasonable steps; either by himself or by calling for assistance, to prevent
               or minimize the damage.
    - This is called the continuous act theory (formerly duty theory)

R. v. Cooper (1993) Supreme Court of Canada
    - Accused charged with murder by manual strangulation and was convicted. He
        grabbed her throat, recalled nothing else.
    - Trial judge said once accused formed intent to cause bodily harm, which he
        knew was likely to cause her death, he need not be aware of what he was
        doing at the moment she actually died.
    - Actus Reus and Mens Rea don’t have to occur at the same time in order for it to
        be a crime
    - Eg is case of Meli v. Queen: Accused tried to kill someone, and threw her over
        cliff. Person didn’t die, but died of something else. Accused argued that he didn’t
        have mens rea at time of her death. STILL GUILTY cuz continuous act.

Omission
    -   Certain circumstances where omission is a crime when there is a duty.
           o Crim Negligence: (2) omitting to do anything that is his duty to do shows
               wanton or reckless disregard for safety or lives of others
           o Omission should only be criminalized in exceptional matters (not for junk
               like failing to report a crime)

Moore v. The Queen (1979) Supreme Court of Canada
Story:


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    -   Appellant obstructed officer’s duty contrary to criminal code. He was riding bike
        and refused to stop when police asked him and to give info.
    - Officer under duty to identify wrongdoer and not cooperating is obstruction.
    - There is no interference with freedom by police simply asking for name. On the
        other hand it is major inconvenience for police by someone who is not
        cooperating.
Verdict: APPEAL DISMISSED

Dissent:
    - Person is not guilty of obstructing merely by doing nothing, unless legal duty to
        act
    - Omission to act is criminal only when duty imposed by statute or common law.
    - There is no duty by statute to a cyclist to give name. There is no common law
        duty either.
            o There was only moral duty, but that isn’t criminal.
    - There is a difference between deliberately telling a lie and not saying anything
        (which is a legal right)
    - There was strong argument that there was implied duty cuz cops have to
        investigate crime.
            o Just cuz cop has duty, doesn’t mean citizen has duty. Each one is
                independent of another
    - Dissent would allow the appeal

R. v. Thornton (1991) Ontario Court of Appeal (later appealed to Supreme Court)
 Story:
     - Accused knew that he was at high risk of having aids. He also knew that he had
        HIV. He knew that Red Cross wouldn’t knowingly accept blood from persons
        with HIV. Nevertheless he donated. But luckily Red Cross caught it and put it
        aside. Charged with committing common nuisance
Court of Appeal:
     - Accused argues that conduct was not an offence known to law (unlawful act is
        not an omission); no proof that it endangered lives; no mens rea.
     - No legal duty to refrain from donating contaminated blood.
     - BUT Duty imposed by common law is a duty imposed by law too.
     - Common law says to refrain from action likely to cause injury to others.
            o At the very least, this requires everyone to refrain from conduct which is
                reasonably foreseeable to cause harm to others.
            o Thus, First argument by accused FAILS
     - Second argument must also FAIL cuz it is obvious that blood had potential to
        endanger lives and law doesn’t have to prove that people actually get hurt.
     - Third argument FAILS cuz accused knew full consequences of his actions.
            o Also admits that he withheld info (shows guilt)
Verdict: APPEAL DISMISSED
Supreme Court: Upheld ruling




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Side note: Criminal liability for non compliance with legal duties should be
restricted to statutory duties enacted by parliament.

Status
    -   Punishes a person for what he or she is, rather than voluntary acts of commission
        or omission.
            o Examples, being a keeper of a bawdy house, living off the avails of
               prostitution (what if you are a prostitute), being nude in a public place
               (you are born nude)
    -   Case of Larsonneur: Person loses visa. Leaves to free state. Ifs forced back to
        UK. Arrested.
            o Argued that person convicted of crime with NO actus reus.
            o Think about terrorist organizations, are they getting arrested for being
               who they are or for crimes? There is legislation which restricts
               PARTICIPATION but not for actually being a member.

R. v. Terrence (1983) Supreme Court of Canada
Story:
    - Person driving around with friend in stolen car. Didn’t know it was stolen.
        Charged with possession of stolen item.
Trial Judge:
    - Even if accused didn’t operate vehicle, he consented to being driven in it so he is
        guilty. It is constructive possession.
    - Ratio: The doctrine of recent possession: Where there is no evidence to explain
        possession, the court may infer from the accused possession of recently stolen
        goods that at the lower level that he was in possession with the knowledge of
        their stolen origin; at the higher level, where the recency of possession in the
        circumstances warrant, that he was the thief or one of the thieves.
Court of Appeal:
    - Must be evidence that there was control on part of accused
    - Knowledge and consent are necessary to form this crime. (cited from R. v. Lou
        Hay Hung)
            o Knowledge and consent can’t exist without some measure of control over
                 the subject matter (cited from Colvin)
    - Appeal Allowed
Supreme Court:
    - Evidence disbelieved by the judge is NOT evidence to the contrary
    - Parties to an offence have common intention.
            o In this case, no evidence that they both took part in theft
            o No common intention to be in possession of stolen vehicle either.
Verdict: AGREE WITH COURT OF APPEAL, appeal dismissed

Circumstances
    -   When there is a crime, must look at the circumstances to see if the crime was
        committed.



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           o Eg: if you are charged with assaulting a police officer, the person you
             assaulted must be proved to be a police officer.

Consequences and Causation
    -   Many offences are defined by a completion of an act.
          o Eg: It’s not murder if you don’t kill someone.
          o Eg2: It’s not assault causing bodily harm if no bodily harm exists.

Smithers v. The Queen (1978) Supreme Court of Canada
Story:
    - Accused killed by kicking victim. Dr. testified that death caused by aspiration of
       foreign materials present through vomiting. Dr said it was rare.
Supreme Court:
    - Kick must be proved to have caused vomiting
    - Act of assault must cause death in order for manslaughter
    - Weight of evidence is entirely up to the jury.
    - Kick was at least a CONTRIBUTING cause of death beyond the de minimus
       range.
           o Immaterial, therefore, that the victim had malfunctioning body
    - There are many unlawful acts which are not dangerous in themselves and not
       likely to cause injury BUT if they cause death, it’s considered murder (cited from
       Rex. V. Larkin)
    - Crown was under no burden of proving intention to cause death. ONLY the
       intention of delivering the kick.
    - Foreseeability also not an issue in manslaughter.
    - Accused contends that crown must prove both that kick caused vomiting leading
       to aspiration and asphyxia.
           o NO: Once there is evidence about the relationship between the kick and
               the vomiting, the rest won’t save you from manslaughter.
    - Ragina v. Garforth also supports that a contributing cause of death is sufficient to
       convict for manslaughter.
    - You must take your victim as you find them
           o R. v. Blaue, person convicted of manslaughter even though person
               refused to accept blood transfusion based on religious grounds.
                    Causal connection was not found to be broken
    - Smithers Test: Any unlawful act that was at least a contributing cause of death
       outside the de minimis range is sufficient to engage criminal responsibility for
       manslaughter

Verdict: APPEAL DISMISSED

R. v. Cribbin (1994) Ontario Court of Appeal
Story:
    - Victim beaten up and left unconscious. Injuries weren’t life threatening but he
        drowned in his own blood. More specifically, gay guy hit on accused, accused as
        a reflex punched him.. then his friend did the rest (according to accused)


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Supreme Court:
    - For murder other than manslaughter it is not the Smither’s test to be used
        (contributing) it is the Substantial Causation Test: substantially contributed.
        This forces accused to play very active role.
             o This is harder to prove than Smithers test
    - Fault element in manslaughter has now required to have objective foreseeability
        to bodily harm which is neither trivial nor transitory, in the context of a
        dangerous act, such that the most trivial assault, not dangerous in itself and not
        likely to cause injury would not give rise to a conviction for manslaughter (cited
        from Creighton)
Constitutionality of Smithers Test:
    - Accused argues that it is unfair to punish someone for manslaughter who doesn’t
        have the moral blameworthiness, reflected by both his conduct and his intention,
        if it never went past simple assault.
             o In short, de minimus is too remote. And causation is vague
    - Causation is NOT vague; there can be no better test articulated at present time
    - NOT too remote; you should take responsibility for your actions; this is a link
        between causation and fault.
    - Moral blameworthiness is removed because there needs to be objective
        foreseeability to be convicted of manslaughter.

R. v. Nette (2001) Supreme Court of Canada
Story: NONE, Semantic debate about not insignificant/significant
Dissent:
    - Smithers test is “a contributing cause that is not trivial or insignificant”
    - Test should be used for ALL murder charges
    - There IS a difference in semantics.
            o Significant impacts jury greater
Majority:
    - What is the test and how should it be explained to the jury for 2nd degree murder?
    - Applicable standard for 2nd degree murder is Smithers, NOT substantial.
            o Substantial only applies to 1st degree
    - When one has settled the but-for test of causation, the further test to be applied in
        order to qualify it for legal recognition is not a test of causation but morality. The
        question is whether the result can fairly be said to be imputable to the defendant
        (cited from Cribbin)
    - Usually statutes determine the test for causation, but when there is none then we
        look to common law.
    - Criminal Law doesn’t recognize contributory negligence.
    - The standard of causation is the same for all homicide but it doesn’t have to be
        expressed as one of substantial cause nor beyond de minimus.
    - Court must decide if act is connected with events that it sufficiently caused
        something.
    - It’s only cases involving MULTIPLE causes of death (eg: knife, gun and blows
        to head, etc) that the jury need to be given an applicable standard of causation.




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    -   Causation is based on moral responsibility (that’s why first degree requires more
        work)
    -   CONCLUSION: Standard may be expressed in different ways but Smithers
        stands.

Intervening Causes
    -   Prosecution must prove that the conduct of the accused links him to the cause of
        death.

R. v. Menezes (2002) Ontario Superior Court of Justice
Story:
    - 2 friends racing. One stopped but other continued and hit a pole and died.
Court:
    - Did accused cause death in both fact and law (applicable law is criminal
        negligence)
    - Factual causation is how the person actually died (eg: explosion)
    - Legal causation is who is responsible for it.
    - Was accused cause a material contribution?
    - Prosecution can convict of dangerous driving if not criminal negligence
    - A chain of intervening events can break causation and exonerate accused.
    - In this case, abandoning the race giving reasonable notice.
    - Legal Rule: You can back away from a crime with another person but you must
        notify them of it, not just change your own mind.
    - But, if you continue with the crime, then you both share EQUAL responsibility
        for whatever happens.
Verdict: Not Guilty of Criminal Negligence BUT guilty of dangerous driving

R. v. Reid & Stratton (2003) Nova Scotia Court of Appeal
Story:
    - Guys beat up victim. Victim became unconscious. Got bad CPR. CPR caused
        death.
Court of Appeal:
    - CPR interrupted and therefore separated acts of accused.
    - Judge didn’t give good instructions to jury about intervening acts.
    - Act must be at least a contributing cause (Smithers).
    - Situations where intervening causes would not result in guilt are expressed on
        PAGE 370
    - Steps to convicting: 1) Smithers test 2) Any intervening causes



Mens Rea
    -   Requirement differs with each crime
           o Even the words differ from crimes: eg, malice means one thing with
               murder, another with theft
    -   Protects morally innocent



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           o But don’t confuse with person’s values. Just cuz HE doesn’t think it’s
               wrong, doesn’t mean it isn’t.
           o As long as accused knew that his actions would bring about the
               consequences it’s ok.
           o Sometimes crown can infer subjective mind from the action committed.
    -   Also important to describe the relation of the particular fault element to the
        prohibited crime.

Subjective States of Fault
    -   People can usually foresee the consequences of their action, thus if they intended
        to do the action, they intended the consequence.
    -   Don’t take into account what the reasonable man would have done; it is only
        evidence in this case.

Intention and Knowledge: these are the two basic subjective fault requirements
    - Intent: The exercise of free will to use particular means to produce a particular
        result
    - Knowledge: Knowing it will happen
    - Motive: 2 meanings
            o 1) Emotion prompting an act
            o 2) A kind of intention eg: D killed P with the motive to save F
            o Criminal law deals with 2 (Ulterior intention).
            o Intention is the means, motive to the ends
            o Motive is good evidence and relevant; always admissible.
                     But it is not an essential element to the crown’s case
                     Proved absence of motive favours accused, and vice versa.
            o Motive is always question of fact and evidence; each case will turn on its
                unique set of circumstances. Issue of motive is always a matter of degree.
R. v. Steane (1947) Court of Criminal Appeal: England
Story:
    - Accused charged and convicted of doing acts likely to assist the enemy with
        intent to assist the enemy. He broadcasted stuff cuz he was threatened.
Appeal Court:
    - Intent must be proved by Crown
            o What if someone forgot to close their blinds that happened to help the
                enemy, he shouldn’t be charged cuz no intent.
            o Can’t draw a conclusion right away that cuz he did something, he
                intended the natural consequences of it
Verdict: APPEAL ALLOWED; CONVICTION QUASHED

Hibbert v. The Queen (1995) Supreme Court of Canada
Story:
    - Accused charged with attempted murder. He claims that he was under duress and
       had to stand by while the other guy tried to kill the person. Judge told jury that he
       could not use duress if he had a safe escape route; acquitted of attempted murder
       but convicted with aggravated assault.


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Supreme Court:
    - People can carry out the actus reus through duress and STILL have mens rea
            o Eg: you want enemy to succeed or your family dies
    - Duress is NOT a defense to mens rea; a person will know what they are doing
        and the likely consequences.
    - Purpose does not equal desire. You didn’t assist in robbing a bank for the $100.
    - For the purpose of aiding does not require the accused to actively view the crime
        as desirable.
    - Intention in common could mean either that the 2 people acted for the same result
        OR that they both wanted the same things in greater detail (desires: one wants to
        save family, other wants to kill).
            o The first one is law!
    - The fact that a person who commits a criminal act does so as a result of threats or
        bodily harm can in some instances be relevant to mens rea. But it depends on the
        particular structure of the event in question.
            o That is, you must look at Parliaments definition to see if it would make
                sense that parliament didn’t want duress included. (in present case, it is
                clear that duress should not occur in aggravated assault)
Verdict: APPEAL ALLOWED; NEW TRIAL ORDERED

R. Buzzanga and Dorcher (1979) Ontario Court of Appeal
Story:
    - Accused charged with willfully promoting hatred against Francophones by
        making pamphlet.
Court of Appeal:
    - Accused testified that purpose was to expose truth to a real problem; satire; no
        intention to raise hatred.
    - Willfully USUALLY means intentionally or recklessly without lawful excuse
             o In this context, it does not mean recklessly
    - Where there is no mention of mens rea in an offense, it means intentionally or
        recklessly.
    - Intention AND Knowledge are equal. Must prove either/or
    - General rule is if person foresees that a consequence is certain or substantially
        certain, he intends that consequence.
    - In this case, accused only guilty if they intended to cause hatred, or were
        substantially certain that it would cause hatred.
    - Willfully can mean accidental too: If accused were substantially certain that it
        would cause hatred and even if they took the chance and it accidentally caused it,
        still willful.
    - Trial judge erred in equating intentional uproar, with promotion of hatred.
Verdict: APPEAL ALLOWED; NEW TRIAL ORDERED

R. v. Theroux (1993) Supreme Court of Canada
Story:
    - Accused charged and convicted of Fraud for accepting deposits from investors
        after telling them that he had deposit insurance when he didn’t.



                                                                                        14
Supreme Court:
    - In the case of fraud, ‘dishonesty’ can be seen from what the reasonable person
        sees as it.
    - Accused knew that telling a lie would put people in risk.
    - Fraud doesn’t capture innocent people cuz it’s what a reasonable person would
        think is dishonest and crown must prove BARD.
            o Statement made carelessly won’t amount to an intentional falsehood, even
                if it is subjectively appreciated; cuz a reasonable person wouldn’t see that
                as dishonest.
Verdict: APPEAL DISMISSED

Recklessness and Wilful Blindness
    -   Recklessness is often seen as an extension of intention; willful blindness is seen
        as an extension of knowledge.
    -   Recklessness: One who is aware that there is danger that his conduct could bring
        about the result prohibited by criminal law, nevertheless does it anyway, despite
        the risk.
    -   Wilful Blindness: One who has become aware of the need for some inquiry
        declines to make the inquiry because he does not wish to know the truth.
            o Knowledge to make inquiry can be personal knowledge or imputed
                knowledge
            o 2 reasons for willful blindness
                     1) A thing may be troublesome to learn; uninteresting
                     2) Where the substance of the thing borne upon his mind with a
                       conviction that proof or details may be dangerous

R. v. Sansregret (1985) Supreme Court of Canada
Story:
    - Accused charged with sexually assaulted victim after breaking into her home.
        Victim became complaint.
Supreme Court:
    - Accused claims mistake of fact.
    - Recklessness can’t over ride it BUT willful blindness can
    - Wilful blindness has LIMITED scope
           o Court can find willful blindness only when they can almost say that
               defendant actually knew. He suspected the fact; he realized its
               probability; but he refrained from obtaining final confirmation because he
               wanted in the event to be able to deny knowledge.
Verdict: APPEAL DISMISSED

R. v. Duong (1998) Ontario Court of Appeal
Story:
    - Accused charged with being accessory after the fact to murder by letting friend
        stay in his house.
Appeal Court:
    - Accused claims that his friend wouldn’t have confessed anyway.


                                                                                         15
    -   Accused should have asked once his suspicion was aroused.
           o Just cuz of a hypothetical, he shouldn’t get off cuz he had the men’s rea.
Verdict: APPEAL DISMISSED

R. v. Cooper
    - Homocide: The essential element is that of intending to cause bodily harm of
        such a grave and serious nature that the accused knew that it was likely to result
        in the death of the victim.
            o A person who does this must be reckless whether death ensues or not (cuz
                he knew the probability of death coming).
    - There must be a LIKELIHOOD of death flowing from the bodily harm.
    - Intent has 2 components: 1) Subjective intent to cause bodily harm 2) subjective
        knowledge that bodily harm is likely to cause death.




Limits on Criminal Law
Homo and “Consensual Sex”
Wolfenden Report:
    - Law’s function is to preserve public order and decency, to protect the citizen
       from what is offensive or injurious, and to provide sufficient safeguards against
       exploitation and corruption of others, particularly those who are specially
       vulnerable because they are young, weak in body or mind, inexperienced, or in a
       state of special physical, official or economic dependence.
    - Don’t intervene in private lives
    - Gays have “mental defect” and law needs to protect them
           o But what is done in private is outside law’s realm (contradiction)

Devlin:
    - You should legislate morality
    - There are certain standards of behaviour or moral principles which society
        requires to be observed; and the breach of them is an offence not merely against
        the person who is injured but against society as a whole
    - Society must have a common agreement on good and evil
    - Law should have NO limits (should enter private homes)
    - Law is the viewpoint of the reasonable man (not to be confused with rational)
    - * Wrote letter to say to change gay laws (make legal)
            o Gay laws changed in 1967 so that 2 consenting adults can do it in private

Can you consent to harm during sex?
   - NO: You may get used to it and not wait for consent (both common and criminal
       law don’t allow it)

Fraser Committee:


                                                                                       16
    -   Liberal: Only worry if it harms others
           o People know what’s best for themselves
           o Fundamental value is freedom of individuals to develop their own view of
               life without direction from the state or majority
    -   Conservative:
           o Societies are not simply collections of individuals, but organic units with
               shared ideas and institutions
           o Unless law embodies and enforces traditional moral values, society will
               lose its morality and disintegrate.
    -   Femenist:
           o Pornography is offensive to women
           o Must help protect disadvantaged groups

Pornography
R. v. Butler (1992) Supreme Court of Canada
Story:
    - The accused, who operated a shop selling various forms of pornography, was
        charged with 77 counts of violating s.163 of the Criminal Code
Supreme Court:
    - Community Standard of Tolerance Test: What matters is NOT what Canadians
        think is right for themselves to see; what matters is what other Canadians would
        not abide them to see because it would be beyond a standard of tolerance to see.
            o Degrading or dehumanizing manner will fail this usually
            o No consent can save them; might even make it more degrading
            o Sex and violence will almost always constitute undue exploitation of sex
    - Violated s.2(b) but saved by s.1; only minimally impairs freedom.
    - “Illegal Moralism”: Majority deciding what values should inform individual lives
        and then coercively imposing those onto the minority.
            o Judge doesn’t think this should happen
            o But this is not the case here.

R. v. Sharpe (2001) Supreme Court of Canada
Story:
    - Accused possessed child porn. Claims s.163 is unconstitutional.
Supreme Court:
    - Infringes only on 2 exceptions: 1) Written works 2) Self made videos
    - Prevention of harm threatening vulnerable groups is a valid limit on freedom.
    - If law is drafted in such a way that catches stuff that has little to do with the
        prevention, then you can’t justify it.

Marijuana and the Harm Principle
R. v. Malmo-Levine; R. v. Caine (2003) Supreme Court of Canada
Story:
    - Can parliament criminalize simple possession of weed?
Supreme Court:



                                                                                          17
    -  B.C. Court of Appeal (2002) concluded that the harm principle was a principle of
       fundamental justice within the meaning of s.7
           o However, legislation is within the harm principles (harms others)
    - People (like pregnant women and schizos) are at particular risk and should be
       protected.
    - A conviction of simple possession carries NO mandatory minimum sentence.
           o Imprisonment is saved for big timers (traffickers)
           o Just cuz there is availability of prison, doesn’t make it contrary to s.7
    - It is open to parliament to criminalize or decriminalize marihuana with public
       policy
    - There is general risk of harm for weed due to the acute affects from it; like
       driving, and using other complex machinery.
           o But accidents are not significant yet.
    - Also a risk for vulnerable groups to become chronic users.
           o We can’t identify these people so we have to prevent before it starts
    - Health risks involved
    - Costs society in health care and welfare
    - Criminalization, thus, fits in with the Constitution Act, which includes protection
       of vulnerable groups.
    - Just cuz parliament focuses on one area of public health and safety (weed) and
       not another (alcohol) does not mean that they are being arbitrary.
Harm Principle:
    - 2 essential features
           o 1) Rejects paternalism, that is, the prohibition of conduct that harms only
               the actor
           o 2) Excludes Moral harm.
    - BUT, exception is to protect vulnerable groups
Fundamental Justice:
    - “For a rule or principle to constitute a principle of fundamental justice for the
       purposes of s.7, it must be a legal principle about which there is significant
       societal consensus that is fundamental to the way in which the legal system ought
       fairly operate, and it must be identified with sufficient precision to yield a
       manageable standard against which to measure deprivations of life, liberty and
       security of the person”
Is Harm Principle a Legal Principle?
    - In short, NO: it is an important state interest but not a principle.
    - There is no sufficient consensus that it is vital or fundamental
    - Not a manageable standard
           o People often disagree about what it means
           o Parliament only worries about harm that is not insignificant or trivial, but
               harm principle says all harm.
           o Quantifying harm for eg: to majority is low in one situation but is
               considered high in relation to vulnerable groups.

Dissent:
    - A law that can convict a person for having done nothing violates s.7



                                                                                      18
    -   As long as imprisonment is available, it violates
    -   If law is drafted in such a way that catches stuff that has little to do with the
        prevention, then you can’t justify it.

Hate Speech
R. v. Keegstra (1990) Supreme Court of Canada
Story:
    - High school teacher promotes hatred against Jews in his class in contrary to
        s.319(2)
Supreme Court:
    - Violates s.2 but saved under s.1
    - Hate propaganda is harmful to target group members and threatening to a
        harmonious society.
             o These groups get comfort knowing that hate mongers are prosecuted and
                 his ideas rejected.
    - It is NOT overbroad because hatred has to be “willful” (not by negligence or
        recklessness)
    - Does not Violate s.11(d) by having reverse onus cuz only has to prove that
        statements were true after everything else was proven by crown. But even if it
        does, then it is justified under s.1
Dissent:
    - S. 2(b) Not justified because going to court would help their cause: Free media
        coverage.
    - Only private statements are excluded but it is too broad cuz some may speal to
        others in a public place.
    - S. 11(d) not justified cuz state has more resources so THEY should prove that it
        is false; maybe the statements have some value.
    - It is true that only a small amount of hate mongers statements are true, but we
        can’t presume them guilty on this basis alone.
    - Difficult to see what benefits this section has overall.

R. v. Zundel (1992) Supreme Court of Canada
Story:
    - Accused charged under s.181 for publishing materials denying the holocaust.
Supreme Court:
    - Making false statements can not be saved under s.1
    - It is not pressing and substantial enough for analysis
    - Makes people scared to say stuff in case its wrong.


Objective States of Fault
- What the accused OUGHT to have known (concerned with criminal negligence).

R. Tutton and Tutton (1989) Supreme Court
Story:



                                                                                            19
   -  Accused charged with manslaughter through criminal negligence causing death of
      their son. They refused to administer insulin because of their faith. Convicted at
      trial. CA ordered new trial saying that although there is an objective test for
      criminal negligence, a subjective test is necessary for acts of omission.
Supreme Court:
   - NO distinction between acts of commission or omissions.
   - What is punished is the mindless action, not the state of mind.
   - MODIFIED objective test: Accused surrounding circumstances but reasonable
      person test from there.
   - Lamer says that “generous allowance” must be made for factors which are
      particular to the accused, such as youth, mental development, education.

DISSENT (TIED):
   - There must be some guilty knowledge that result would pass
         o Make sure morally innocent are not punished (protection).
   - The fact that it has the word reckless shows that there has to be subjectivity.
   - Also uses a modified objective test.

Verdict: Upheld new trial but for other reasons. Purpose of this was to show debate
between negligence in criminal law.

R v. Waite (1989) Supreme Court
Story:
    - Accused drove car fast while intoxicated and killed 4 people.
Trial Court:
    - In dangerous driving, accused mind is not important.
    - Completely objective test
    - BUT in criminal negligence there has to be a subjective element of assumption of
       risk.
Supreme Court:
    - Trial judge was wrong.
    - Trial judge places too high an onus on subjective standard
    - Mental element is MINIMAL intent of awareness of the prohibited risk or willful
       blindness to the risk.

R. v. Gingrich and Mclean (1991) Ontario Court of Appeal
- Truck driver’s brakes fail and kills someone
- Criminal negligence is purely objective

Hundal (1993)
Story: Accused charged with dangerous driving causing death. Ran red light. Leave to
appeal DENIED
Appeal Court:
    - Subjective mental element in driving offences is to deny reality.
          o Inappropriate to apply subjective test




                                                                                       20
   -   MODIFIED OBJECTIVE TEST for driving offences: Accused perception of
       circumstances and then use reasonable person.
   -   Marked departure
   -   Driving offences is a quasi regulatory offence and it differs than criminal
       negligence.


Creighton (1993) Supreme Court of Canada
Story:
    - Person gave another cocaine. He was experienced user and would have known
       that it would kill her.

Supreme Court:
   - Negligence must be “Marked Departure” from standard.
   - Negligence is Modified objective test.
   - Do not take persons experience, education, etc (personal characteristics) to
      determine what a reasonable person would have done. There is only ONE
      standard.
   - Only exception is incapacity to appreciate the nature of the risk.
   - A person’s personal characteristics already come into play when determining the
      circumstances as to how they perceived it.
   - No stigma attached to manslaughter
   - No distinction between foreseeablity of harm and death because of thin skull
      plaintiff rule: You may not have foreseen that he would die but he did cuz he is
      thin skulled.
   - Legal principles relevant in determining constitutionality of mens rea
      requirement: 1) Stigma 2) Proportionality between offence and punishment 3)
      Causing harm intentionally should be punished more than accidentally.

Dissent:
   - accused can only be held to reasonable standard if he was capable to begin with
           o stigma attached to manslaughter
           o this would give people who can’t attain reasonable standard a kind of
              absolute responsibility.
Verdict: Reasonable person would have known that the person would have died. Appeal
dismissed.

Constitutional Considerations

Durham (1992) Ontario Court of Appeal
  - Objective is enough to convict on most offences because not all crimes carry
     same stigma.

Finta (1994) Supreme Court




                                                                                     21
Story: Accused charged with committing robbery, kidnapping and manslaughter that
constituted war crime against humanity as a result of him being a senior officer in
concentration camp.

Supreme Court:
   - Higher stigma to war crimes rather than the regular offences by themselves.
      Example: regular robbery= little stigma, war crime causing robbery=HIGH
      stigma.
   - It follows that accused must be aware of the conditions which render his actions
      more blameworthy than domestic the offence, or be willfully blind to them.
   - However, accused did not have to know that his actions were considered
      inhumane.

Sexual Assault
Chase (1987) Supreme Court
Story:
    - Guy convicted of sexual assault. CA reversed it but held that he was still guilty of
       regular assault.
Surpeme Court:
    - Sexual assault is an assault
    - Test to be applied in determining whether conduct has the requisite sexual nature
       to be considered sexual assault is an Objective one “Viewed in light of all the
       circumstances, is the sexual context of the assault visible to a reasonable
       observer?
Verdict: Appeal Allowed, conviction for sexual assault restored.

Pappajohn (1980) Supreme Court
Story:
    - Businessman had 3 hour lunch with girl, then went to his house and 3 hours later
        girl ran out naked crying. Girl denied any consent and said she resisted
        throughout.
Trial: Refused to instruct jury that if he honestly believed in consent, then he should be
acquitted. Appeal dismissed
Supreme Court:
    - Must be evidentiary burden for honest belief.
    - Burden CAN’T be found in accused own testimony.
    - Court realizes that there are many things here (such as not ripped clothing, time
        elapsed) but still not enough for evidentiary burden.
    - There must be evidence BEYOND the mere assertion of belief.
    - Must be supported by sources other than accused to give air of reality.
Dissent
    - Intention/recklessness must be proved in relation to all elements of the offence,
        including absence of consent.
    - Mistake is defense where it prevents an accused from having the mens rea to
        commit the crime.



                                                                                         22
   -   Mistaken belief CAN come from information from a 3rd party (Morgan case
       about husband saying that wife would sleep with his friend).
   - Even incorrect facts could save the accused if he believed them.
   - Accused still has evidentiary burden.
   - If woman in her own mind does not consent but her actions do then it is unjust to
       convict.
   - Mistaken consent does NOT have to be based on reasonable grounds.
   - Dissent would allow appeal
Verdict: Appeal dismissed; guilty

Consent
Oslin (1993) Supreme Court
   - Disagrees with Pappajohn in that evidence doesn’t have to come from a 3rd party.
   - However mere assertion isn’t good either.
   - Must have evidence beyond mere assertion.
   - Also just because there are opposed arguments between the parties, doesn’t mean
       defence can’t still be put to jury.

Mistake
Sansregret (1985) Supreme Court
Story:
   - Accused acquitted because found honest belief. But also found that complainant
       was terrified. Accused thought that everything was back to normal with his gf,
       even though no1 else would have. CA entered conviction and Supreme Court
       Dismissed appeal. Accused was willfully blind and this should not allow him to
       put forth mistaken belief.
   - BUT this doesn’t overrule Pappajohn. Belief still doesn’t have to be reasonable.

Seaboyer (1992) Supreme Court
    - Rape Shield vilates ss.7 and 11(d) of Charter and not justified under s.1
    - The provision provided that in sex assault trials, evidence concerning the sexual
       activity of the complainant with any person other than the accused could only be
       admitted if 1) rebutted evidence of the complainants sex activity or absense
       thereof adduced by the prosecution; 2) tended to establish the identity of the
       person who had sex contact with the complainant on the occasion set out in the
       charge; 3) was evidence of sex activity that took place on the same occasion as
       the sex activity in the charge and relates to the consent that the accused alleges he
       believed was given by the complainant.
           o If the accused has to raise reasonable doubt that he had believed in
               consent, then past sex experiences may be relevant.
    - BUT s277 which prohibits the use of evidence of sex reputation to challenge the
       credibility of the complainant IS constitutional.
           o No link between her sex past and her credibility.
- But REASONABLE steps must be taken to see if there was consent.




                                                                                          23
Ewanchuk (1991) Supreme Court
STory
   - accused acquitted due to “implied” consent. This was a mistake (doesn’t exist).
      Accused NEVER raised defence. Judge just said that reasonable person would
      imply consent from her actions.
   - Trial judge said that crown hasn’t proved lack of consent beyond reasonable
      doubt.
   - Guy wanted to hire female employee. Set up interview at his house.
   - Guy made sexual advances and complainant even gave him a massage.
   - She constantly told him to go no further.
   - Accused stopped all the time but eventually started again.

Supreme Court
    - Trial judge erred in his interpretation of the term “consent” as that term is applied
        to the offence of sex assault (there is no defense of implied consent)
    - Error to employ objective test to see if complainant’s consent was induced by
        fear.
    - Trial judged erred he gave legal effect to stuff like her silence, etc
    - Defence of mistake of fact had no application to the issue of consent.
    - Trial judge erred when he failed to consider whether accused was willfully blind.
    - 2 components to crime of Sex Assault:
            o Actus Reas of assault is unwanted sex touching
            o Mens Rea: Intention to touch, knowing of, or being reckless of or willfully
                blind to, a lack of consent, either by words or acions, from the person
                being touched.
Actus Reus:
    - 3 elements: 1)Touching 2) sexual nature of contact 3) absence of consent
    - First 2 are objective. Last one relies ONLY on accused: What was in HER mind
        (her conduct doesn’t matter).
Effect of Complainants Fear
    - Consent must be freely given. Therefore even if the complainant consented, she
        acted like she did, there are factors that may still negate this.
    - Question is whether she believed herself to have only 2 choices, comply or be
        harmed.
Mens Rea:
    - Sex assault is general intent; therefore Crown only need prove that accused
        intended to touch.
    - 2 elements in mens rea: 1) intention to touch and knowing of 2) or being reckless
        of or willfully blind to, a lack of consent on the part of the person being touched.
    - Defence of mistake negates mens rea
            o Not necessary for accused to testify to raise issue
                     Can come from crown or complainant.
            o No burden of proof on Accused
            o Mens rea isn’t just when complainant says no.. it’s when she doesn’t say
                yes.
            o Accused speculation on her mind is no defence.



                                                                                         24
           o What matters is that the accused believed that the complaiant said yes
               through words and/or actions.
           o If the accused has expressed unwillingness to engage in sex at one point,
               accused should make certain that she has truly changed her mind.
BEST SUMMARY OF SEXUAL ASSAULT ON PG 679-680
Also look for arguments on rape myths from 680 on.


Second Degree Murder
Transferred Intent

Fontaine (2002) Manitoba Court of Appeal
Story:
    - Accused tried to commit suicide with other people in the car.
CA:
    - Person deemed to have intent to commit murder when he tried to kill someone
       else but killed another instead.
    - This does NOT apply to suicide.
           o Suicide is LEGAL, where murder is not
           o Refers to killing of ANOTHER (used to say of human being)

Constitutional Considerations

Vaillancourt (1987) Supreme Court
Story
    - convicted of 2nd degree murder
    - Appeal dismissed
    - Armed robbery in pool hall. His partner killed the other person.
    - He only agreed to commit the robbery. He even said only knives, didn’t know
        there was a gun. When he found out, he told him to make sure it was unloaded.
    Supreme COurt
    - Stigma attached to 2nd degree murder such that there should be subjective
        foresight.
    - Violates charter
    - Transferred intent to accomplice can take away BOTH mens rea or even actus rea
        and make jury convict despite reasonable doubt.
            o The fact the all the accused has to do is perform ANY crime is to broad.
Dissent:
Parliament chose to make crimes with weapons responsible for a reason. Deterrence from
using so. It’s so dangerous that anyone who helps out should be responsible too. Accused
is only arguing that his crime shouldn’t be called murder. He did a crime and should be
guilty.
Martineau (1990) Supreme Court
Story:
Accused partner DELIBERATELY shot someone. He thought he was only gonna B&E.
Court struck down s.213(a). Not guilty. MUST have subjective foresight.


                                                                                     25
Dissent: It was foreseeable that bodily harm was there and that should be enough cuz it
follows that it is objectively foreseeable that death could emerge. Social stigma is over-
emphasized. No real difference bwteen stigma from murder/manslaughter. Guy clearly
tried to commit 2 crimes (B and E, and Assault) this is the best time for deterrence.


Strict Liability

City of Sault Ste. Marie (1978) Supreme Court
   - Charged with pollution.
   - Public welfare offences shift focus from individual to social interest
   - Due diligence is defence to strict liability offences on balance of probabilities.
   - Burden of proof is for True crimes; not regulatory.
   - This tires to promote efficiency in businesses
   - Regulatory offences are offences of negligence; thus it makes sense to make it
       depend on reasonable care (due diligence).
   - Crown doesn’t have to prove mens rea
   - But accused can raise defence of due diligence.
   - Usually it will be the accused who knows all the facts
   - Crown must only prove actus reus.
   - Absolute liability offences will only apply where legislation clearly makes it so.
       “cause” and “permit” are words for strict liability offences.


   Constitutional Considerations

   Re. B.C. Motor Vehicle Act (1985) Supreme Court
   - guilty of offence even if you didn’t know your license had been suspended
   - if imprisonment is available for absolute liability then it violates charter (s.7)
   - Charter is not frozen in time; so even if public officials think it’s ok at one point
      in time, it may not be now.

Pontes (1995) Supreme Court
   - Modified BC Motor vehicles act to not include imprisonment.
   - It’s still absolute liability offence.
   - No due diligence.
          o Any imprisonment must at least afford due diligence.
   - But doesn’t contravene Charter cuz no imprisonment.


Irwin Toy (1989) Supreme Court
   - Charter doesn’t apply to corporations.
          o Security of PERSON, not property.

William Cameron Trucking (2003) Ontario Court of Appeal


                                                                                             26
   -   Wheel fell off truck. Due diligence was made but not a defense to absolute
   -   Parliament CAN create an absolute liability offence where there is no
       imprisonment
           o Even though monetary can hurt someone.
   -   Doesn’t violate s.7 or 11(d).
           o Accused submits does it does violate s.7 cuz although corporations are not
              people, SOMEONE gets it on their record.
   -   Accused also submits that Pontes never dealt with security of the person.
           o Driving is a privilege not a right.
           o Also although due diligence isn’t a defence, there is another; mainly that if
              the wheel became detached after a car accident.
           o Also there is no generalized right to have no stigma. Here, the stigma isn’t
              great anyway.
           o If state’s interference causes psychological stress it may violate s.7.
              (Blencoe) But there is a distinction cuz here we are only dealing with
              regulatory offence.


Wholesale Travel Group (1991) Supreme Court
  - Accused corporation charged with several counts of misleading or false
      advertising.
  - Doesn’t violate charter to create an offence for which the mental element is
      negligence.
  - Stigma from corporate crime is not the same as individual crime.
  - Keep in mind that in regulatory offences, the interests are with the community.
      Sometimes we can make sacrifices for corporations for the community’s sake.
  - Those who have CHOSEN to partake in a highly regulated act should bare the
      consequences.
         o One of the implied terms is that there will be a minimum standard of care.
         o Corporations are in a better position to control the harm, so they should be
              responsible for it.

Does reverse Onus in regulatory offence violate s.11(d)?
    - Court divided
    - Violates cuz can convict despite reasonable doubt.
          o Minimal impairment test failed.
    - Other says that it violates but can be upheld.
    - Other says did not violate at all.
          o Strict liability is appropriate compromise for regulatory offences (Sault St
               Marie)
          o Crown would never be able to prove offence if they had burden to prove
               Mens Rea
- *THUS REVERSE ONUS UPHELD 5-4 !
    - Side note: Corporation can challenge constitutionality of law BUT they can’t
       benefit from it. Only humans can




                                                                                       27
           o But they can only challenge if law involves INDIVIDUAL humans as
             well, not JUST corporations.

Ellis-Don Ltd (1992) Supreme Court
    - Upheld Wholesale Travel!


Ignorance of the Law
 Howson (1966) Ontario CA
Story: Accused charged with theft when he owned a towing company and towed a guy’s
car who he wasn’t supposed to because his brother told him.

Court: Ignorance of the law only applies when there is an offence. Here, the accused had
colour of right so there was no offence committed. He had no intention of stealing the
car.

Verdict: Appeal allowed (for accused)

Docherty (1989) Supreme Court
Facts: Accused charged with wilfully violating a probation order. He had been charged
with care and control of vehicle. Accused testified that he was unaware he was breaking
the law at the time.

Supreme Court:
   - Wilful breach is an exception to s.19 (ignorance) because a person can’t wilfully
      breach if he didn’t know.

Mistake of Fact and Mistake of Law
   - In Prue and Baril (1979) Supreme Court said that person driving with
      suspended license is mistake of fact, not law. Dissent said that he was ignorant to
      the law because he should have known that there would be an automatic
      suspension.
   - In MacDougall (1982) Supreme Court, the accused was charged with driving
      without a license. A letter had been sent to his house telling him but when he
      appealed his conviction he was sent a notice of reinstatement. His appeal was
      dismissed. Subsequently he was sent another notice of revocation but he got it
      after he got arrested. The section of the law says that when a person’s appeal is
      dismissed, his license is revoked. He went to court again where the Supreme
      Court said that him not knowing he had a license was a mistake of LAW!
          o But Pontes (1995) Supreme Court disapproved of it because it was pre-
              charter, so it doesn’t necessarily stand.

Defence of Officially Induced Error
   - In Molis (1980) Supreme Court, accused charged with trafficking a restricted
      drug. When he first began to do it, it was legal, but later became illegal AND



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       published in a journal. He was GUILTY, noting that due diligence doesn’t apply
       to law, just duties.
           o Forster (1992) Supreme Court, reinforced Molis: Honest but mistaken
               belief in the law is not a defence even if due diligence.
                    Knowledge that one’s actions are against the law is NOT a
                       component of mens rea for offence and isn’t a defence.
   -   Cancoil Thermal Corporation (1986) Supreme Court, said that Officially
       induced error IS a defence.
           o It’s available as a defence to an alleged violation of ANY statute where an
               accused has reasonably relied upon the erroneous legal opinion or advice
               of an official who is responsible for the administration or enforcement of
               the particular law. In order for the accused to raise the defence, he must
               show 1) that he relied on the erroneous legal opinion of the official, and 2)
               that his reliance was reasonable.
                    This excuses the accused because he acted reasonably and doesn’t
                       deserve punishment.

Jorgensen (1995) Supreme Court
Story: did he knowingly sell obscene material? Did he do so without lawful excuse?
-
Supreme Court:
    - Crown doesn’t need to prove that he knew it was obscene.
    - The approval of a film board doesn’t negate mens rea, but provides a defence.
    - Why ignorance of the law is NO excuse:
            o It would involve the courts in insuperable evidential problems
            o It would encourage ignorance where knowledge is socially desirable.
            o Otherwise every person would be a law unto himself, infringing the
                principle of legality and contradicting the moral principle underlying the
                law
            o Ignorance of the law is blameworthy in itself.
Difference between Due Diligence and Officially Induced Error
    - Due diligence is a full defence; officially induced error doesn’t negate culpability.
    - Diligence may be necessary to obtain the advice which grounds officially induced
        error.
    - Diligence is for regulatory only; officially induced error is for anything
Officially Induced Error
    - The assumption that a citizen will have a comprehensive understanding of the law
        is unreasonable.
            o However government still needs to enact regulations to make society
                function properly and safely. But because it’s so extensive, it’s
                understandable that errors can occur here and there.
    - This defence is valid for ANY CRIME, including TRUE CRIMES, with a full
        mens rea component!
    - It functions like entrapment.
    - It’s an EXCUSE
    - Must be proven on BALANCE OF PROBABILITIES



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   -   If there is a mistake of fact, you don’t need it because that alone is enough to get
       you off.

Steps in arguing Officially Induced Error
    1. There was mistake of law or mixed law and fact
    2. Accused need to consider legal consequences of their action; getting advice from
        an official
    3. Show that the advice was from an appropriate official.
    4. Must demonstrate that the advice was reasonable in the circumstances.
    5. Advice has to be erroneous
    6. Accused must demonstrate reliance on this advice.

Jones and Pamajewon (1991) Supreme Court
Story: Accused charged with operating unlawful bingo. They were members of Indian
reserve and thought that law didn’t apply to them even though police told them it did. Tis
was seen as mistake of LAW, not fact.

Pontes (1995) Supreme Court
   - notice can be given in many ways for driving suspensions.

Statutory Reform: Ignorance of the law owing to non-publication is ALSO a defence.



Inchoate Offences
   -   3 inchoate crimes: attempt, incitement (counseling), and conspiracy.
   -   Premise is that you are not culpable for only the completion of the offence.
   -   There is a demonstrable and sufficient harm once it has been set in motion.

Attempt
(Actus Reus)
Cline (1956) Ontario CA
   1. There must be mens rea and actus reus to constitute attempt, but the criminality
       lies mainly in the intention of the accused
   2. Evidence of similar acts done in the past, if not too remote, are admissible in
       evidence to find mens rea
   3. Such evidence may be advanced in the case for the prosecution without waiting
       for the defence to raise a specific issue.
   4. It is not essential that the actus reus be a crime or a tort or even a moral wrong or
       social mischief.
   5. Actus reus must be more than mere preparation
   6. But when the preparation to commit a crime is in fact fully complete and ended,
       the next step done by the accused for the purpose and with the intention of
       committing a specific crime constitutes the actus reus sufficient in law to establish
       a criminal attempt to commit a crime.

Deutsch (1086) Supreme Court


                                                                                          30
Story: Accused charged with attempting to procure female persons to have sex. It was a
job offer for a secretary and every applicant had to agree to have sex with potential
clients to get it. GUILTY!
Court: Distinction between preparation and attempt is a qualitative one that depends on
the nature and waulity fo the act and the nature of the complete offence. It is clear in this
case that offering money to women to have sex with clients to get the job is an important
step in the commission of the offence.

(Mens Rea)
Ancio (1984) Supreme Court
Story: Accused broke into wife’s home with a shotgun. Wife’s partner went to
investigate. There was a struggle and the gun went off missing the partner. Charged with
Attempted murder.

Court:
   - It is clear that since the actus reus doesn’t even have to be done, mens rea is very
       important in attempt.
   - Mens rea for attempted murder can’t be less than specific intent to kill.
   - Verdict for Accused

Logan (1990) Supreme Court
Story: Accused charged with number of offences relating to the robbery of a store. 2 of
the accused were convicted of attempted murder and appealed which succeeded. Supreme
Court found in favour of accused

Court:
   - No1 can be convicted of murder unless there is subjective foresight (Martineau)
   - A murder that doesn’t succeed is a “lucky” murder, but that doesn’t mean that the
       mens rea should be any less.
   - Stigma associated with attempted murder is the same as the actual conviction.

   Sorrell and Bondett (1978) Ontario CA)
   - accused charged with attempted robbery. They had hats over their heads and guns
      but they left the store. Verdict for accused. Crown needed to prove mens rea for
      robbery BARD.

Impossibility
Dynar (1997) Supreme Court
Story: Undercover officer tried to entrap accused to launder money. Accused argue that
he couldn’t have been convicted because money wasn’t stolen. GUILTY!

Court:
   - Doesn’t matter if attempt would have succeeded or not. So long as he attempted
       to do so, he is guilty of a crime
   - Only distinction is Imaginary crimes and attempts to do the factually impossible.




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   -   In theory an accused who attempts to do the factually impossible could succeed
       but for the intervention of something.
           o No difference in mens rea between person who pickpockets nothing, or
               steals his own umbrella, or steals something else.
           o Mistaken belief is a defence to crime, such as sex assault (mistake of fact),
               so it can go the other way too and make him guilty if he mistakingly
               believed that it wasn’t his and tried to steal it.
           o Intention has to do with how one sees the world, not necessarily the reality
               of the world.
                    You CAN commit attempted murder on someone who is already
                       dead if you didn’t know that
   -   A legally impossible attempt (imaginary) is one that even if completed, it’s still
       not a crime
           o So no point in punishing for deterrence or anything cuz no1 cares.
           o Plus no mens rea known to law because there is no provision that
               acknowledges the crime.

Incitement (Counseling)
   - Counseling exists in 2 forms: Crimes that have actually been committed and
       crimes which haven’t been.
   - Incitement is a crime even it hasn’t been completed on the theory that it is seen as
       an affirmative step to the crime.

Ford (2000) Ontario CA
Story: Accused convicted of counseling murder, but acquitted on attempted murder and
conspiracy. He argues that the 2 verdicts are inconsistent. TOO BAD

Court: Test for determining if inconsistent verdicts should be quashed is if the verdicts
are violently at odds and the same basic ingredients are common to both charges. Then it
will be upto accused to show that no reasonable jury could find him guilty of crime A if
he didn’t commit crime B.
    - Trial judge instructed jury to look at each count separate. And not be influenced
        by decision of another. Take facts that are relevant to each count. This was right.

Dungey (1979) Ontario Court of Appeal
  - accused charged with trying to conspire with client to scam Law Society.
     ACQUITTED
  - Can’t convict for ATTEMPTING to conspire. You need agreement.

Gonzague (1983) Ontario CA
  - Incite doesn’t necessarily mean that the incitor must originate or initiate the
     transaction. You can still be convicted even if you didn’t start it
  - The offence of procuring (incitement/counseling) is complete when the
     solicitation occurs even though it is immediately rejected by the person solicited,
     or even though the person solicited merely pretends to assent and has no intention
     to do it.



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   -   A person can not WITHDRAW once it’s done (only in America).
          o Makes sense because once it’s done, it’s done.
   -   But must look at intention; did the incitor actually intend to get the person to kill
       him
          o Or was he just drunk and stupid?


Janteas (2003) Ontario Court of Appeal
**The mens rea for incitement is the intent to want to commit the actual crime, NOT that
the accused spoke the words with the intent that the advice be accepted.
    - Hamilton- No one should be guilty of incitement if they hadn’t intended the
       offence to be committed.
           o 2 mens rea requirements:
                   Counselor intending to council
                   The intention that the offender actually carry out the offence.
                           NO recklessness to avoid accidents and avoid entrapment
                             to people who will not commit the crime (police)
    - the crime solicited doesn’t have to be committed
           o still guilty mind

Hamilton (2003) Alberta CA
  - sold stuff over the internet that explained how to make bombs, hacking, etc.
  - Same ruling as Janteas.


Conspiracy
- When 2 or more people agree to commit crime, offence is complete when agreement is
reached.
Dynar (1997) Supreme Court
    - it is not intention of 2 or more, you need AGREEMENT
    - There must be intention to agree, the completion of the agreement, and a common
       design.
    - Additional people may join or drop out. So long as there is a continuing overall
       plan there is conspiracy; even if it changes from time to time.
    - Crown must only prove meeting of the minds.
    - Must involve more than 1 person, though not all need to be identified or be
       capable of being convicted.
    - Further EACH conspirator must have a genuine intention to participate.
           o Can’t be a conspirator if you only pretend.
    - Because the crime is based in intention, it doesn’t matter if it was impossible
    - You can still get convicted as long as the other person agrees EVEN IF he is only
       pretending. In this case a police officer intervened and clearly Dynar’s partner
       wouldn’t go through with it. But yet Dynar is still responsible.

Participation


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4 ways to participate: Principal, aiding, abetting, counseling. Accessory isn’t participating
in an offence but still crime.

Principal
It’s possible to be a principal offender when committing an offence through the agency of
another.

Thatcher (1987) Supreme Court
   - The accurate perpetrator need not be identified
   - It is enough that jury believe that he acted in SOME way, whether he was aider or
      principal, doesn’t matter.
          o Jury does NOT have to be unanimous in deciding what role he played; as
              long as he played a role he is guilty.
   - Aider and abetter is same footing as principal. All same culpability.
          o He committing THAT offence
   - We don’t want him to get off scott free just because we don’t know in what
      capacity he did it, even though we know he did something.

H.(L.I.) (2004) Manitoba CA
    - Deals with the whole issue of who caused the death and was it a contributing
        cause.
    - Doesn’t matter because we know that they were all party to the offence somehow
    - As long as they acted “in concert” they are all guilty.
    - Charge to jury about all the ways to participate should still be said.
    - In order to convict accused of participation there must be some evidence that
        shows that he participated. Only then will you instruct the jury about all the ways
        of participation : Dunlop

Berryman (1990) British Columbia CA
   - Making a fake passport through someone who didn’t know
   - Person who commits an offence through an innocent agent is deemed to be the
      actual perpetrator.
   - She can’t be an aider or abetter because there was no principal offender since the
      person was an innocent agent. BUT she is the principal offender herself.

Aiding and Abetting
Kulbacki (1966) Manitoba CA
    - accused charged with dangerous driving. He wasn’t driving it himself but he was
       the owner and sitting beside the girl who he let drive it.
    - Court says that his lack of participation was encouragement.
    - But court also says that it’s not every case where the person sitting beside the
       driver is party to the offence; they must have some authority.

Dunlop and Sylvester (1979) Supreme Court




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Story: Accused convicted by judge and jury of rape for their part in mass rape by
members of motorcycle gang. They only came and delivered beer, they just saw it, didn’t
do it. ACQUITTED BY SUPREME COURT

Court:
   - Person is not guilty merely because he was at scene of crime and didn’t prevent
       it, as long as there was no encouragement
            o Makes sense because person shouldn’t be convicted for being at a crime
                scene of a crime he didn’t know was taking place.

Kirkness (1990) Supreme Court
   - Guy with his pants down (different case) got off. Court here thinks it should not
       be followed.
   - If you have DUTY to act and you don’t, then it’s participation by omission:
       Nixon (police officer failing to protect inmate when present).
           o Something MORE is needed than mere passivity (in Nixon, it was a
               duty).
   - A person can still be convicted of a crime for mere presence if the purpose of his
       inaction was to aid/abet the crime.
           o In some circumstances, the presence of the accused in itself is
               encouragement and is more than “mere presence”

Common Intention
Kirkness (1990) Supreme Court
   - First step in establishing participation is to show that accused formed common
       intention.
           o Doesn’t need to be planned in any way though, as long as it was
                sometime prior to offence.
   - Once common intention is formed, all members are responsible for crimes that:
           o The commission of the ultimate offence has to be probable
           o They knew or OUGHT to have known of this probability.
Abandonment:
   - Accused may absolve himself if he can show that he abandoned his purpose to
       assist in the offence.
           o Must be more than mere mental change
           o Where practicable and reasonable, there must be timely communication
                     What’s timely depends on circumstances
   - Defendant will be held to a different standard of abandonment based on how
       much he has already done.
           o Eg: if he did a lot, then he has to basically prevent the crime
           o We look at the QUALITY of the withdrawal.
   - Common intention is meant to put liability on OTHER acts committing during
       the initial offence.
   - The distinction between getting charged with common intention and just another
       party to the offence is to see how similar the other crime is to the original.




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           o Eg: if partner robs a store and then robs another person in store, both
             guilty as participators. But if partner robs store and then kill someone,
             common intention applies.

Logan (1990) Supreme Court
   - Can’t get convicted of murder by common intention due to Charter as well, even
       if it was probable and ought to have known.
   - But this does not preclude other offences, only when there is stigma.

Davy (1993) Supreme Court
   - Objective awareness is OK for manslaughter though.

Accessory After the Fact

Camponi (1993) British Columbia CA
   - Accessory CAN happen even if principal hasn’t been convicted.
   - Fault elements are:
         o Intention with respect to the conduct alleged
         o Knowledge by the accused of the circumstance that person was a party to
             the offence with respect to which the accessory-ship is alleged.
         o Purpose to make principal escape
   - Crown must prove all these BARD


Corporate Liability
Waterloo Mercury Sales Ltd (1974) Alberta District Ct.
   - one of company’s managers got third party to change odometers of cars.
   - Argued that he wasn’t in high enough position to act for company
   - Court found that they delegated him the means to direct the company and they
       are responsible.

Canadian Dredge and Dock Co. Ltd. (1985) Supreme Court
   - Test for determining whether directing mind makes company responsible is
         o Was within the field of operation assigned to him
         o Was not totally in fraud of the corporation
         o Was by design or result partly for the benefit of the company.
                  Doesn’t matter if he did what he was told not to do

Safety-Kleen Canada (1997) Ontario CA
    - Corporation accused of knowingly giving false information to officer.
           o Person who did it was NOT directing mind
    - To determine whether he was directing mind, must see if he has been left with
       decision making power.
           o He was sole driver. But NOT directing mind because he couldn’t devise
              policy(court said)



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Note on Vicarious Liability
It is generally against Charter to make someone vicariously liable. BUT corporations
don’t benefit from security of the person so it’s ok.

Archibald Article
   - Vicarious liability for corporations is good because it will be deterrent for
       wrongful actions.
   - Now any employee can make corporation liable.
   - SEE PG 602-613


Defences
Necessity
   - It’s an EXCUSE
   - Crimes committed in urgent situations of clear and imminent peril where the
       accused has no safe avenue of escape or legal way out.

Morgentaler (1975) Supreme Court
   - Gave woman abortion without approved certificate allowing him to do so.
   - He was afraid that she might do something stupid.
   - Court talks about how it hasn’t been used successfully, such as throwing people
       over a boat, or eating someone to survive.
   - Necessity can NOT justify killing or the stealing of food
           o Otherwise it would be used too widely. How many starving people are out
               there?
   - IF it does exist, it can go no further than to justify non-compliance in urgent
       situations of clear and imminent peril when compliance with the law is
       demonstrably impossible.
           o No-one can violate it just because he thinks the law conflicted with some
               higher social value.
   - No such defence can be accepted in any case:
   1. where the evil averted was a lesser evil than the offence committed to avert it
   2. where the evil could have been averted anything short of the commission of
       that offence
   3. where more harm was done than necessary for averting the evil.
   - A defence of necessity must rest upon evidence that the jury could find:
  1. That the accused in good faith considered the situation so emergent that failure to
      terminate the pregnancy immediately could endanger her life or health
  2. That upon any reasonable view of the facts, compliance with law was impossible.
   - Dissent recognizes that economic pressure is not good enough.

Morgentaler (1985) Ontario CA
   - conduct of accused must be truly Involuntary.
   - No necessity where you just don’t agree with the law. You still must act within
      the law


                                                                                       37
    Perka (1984) Supreme Court
    - Accused charged with trafficking. They landed their boat when weather was bad.
    - There is a difference between justification and excuse.
           o We consider justification rightful
           o An excuse recognizes the wrongfulness of the action, but due to
               overwhelming circumstances is let off in the particular case.
    - There is a balancing of good and evil sometimes (utilitarianism), but this still
       doesn’t serve as justification, still an excuse.
    - Excuse rests on realistic human weakness, some human instincts make you break
       the law
           o No one would have been able to withstand it
    - If a person is forced to make a CHOICE then no necessity because his actions
       were involuntary.
    - Urgent and peril tests whether it was unavoidable.
    - And could he have been within the law is the final step.
           o This is VERY important
    - Even if all this were met, there still must be PROPORTIONALITY.
    - Judge should try to explain necessity as best as possible to jury, especially
       REASONABLE alternative.
    - Sometimes you can break the law if you have a duty to somsoene else (eg, to
       save this person’s life you must break the law).
           o When there is a conflict of duties, it is a JUSTIFICATION, not an excuse.

GREAT SUMMARY:
  1. The defence of necessity could be conceptualized as either a justification (eg: self
      defense) or an excuse;
  2. it should be recognized in Canada as an excuse
  3. necessity as an excuse implies no vindication of the deeds of the actor
  4. the criterion is moral involuntariness of the wrongful action
  5. involuntariness is based on society’s expectation of appropriate and normal
      resistance to pressure.
  6. negligence or involvement in criminal activity does not disentitle the actor to the
      excuse of necessity
  7. actions or circumstances which indicate that the deed was NOT involuntary
      disentitle a defence
  8. existence of reasonable legal alternative disentitles.
  9. only applies in circumstances of imminent risk where the action was taken to
      avoid a direct and immediate peril
  10. where the accused places sufficient evidence to raise the defence, onus is on the
      crown to meet it BARD.


Latimer (2001) Supreme Court
    - Charged with killing his daughter who was suffering.
    - Judge didn’t allow jury to consider necessity because no air of reality
    - 3 requirements for necessity:



                                                                                       38
            o Imminent peril or danger
            o No reasonable legal alternative
            o Proportionality
    -   First 2 are modified objective. Last one is Objective
    -   No air of reality to ANY of them in this case: he thought his daughter was in
        danger not him; legal alternative like getting surgery.
    -   Killing is probably unlikely to get off; proportionality threshold too high, but
        maybe if it was a terrorist attack or something.

Duress
   - Hibbert said that duress can’t negate mens rea.


Paquette (1976) Supreme Court
   - Guy was forced to rob store at gunpoint by his “friend”.
   - He had been threatened by revenge if he did not wait in getaway car.
   - Friend killed another person
   - After robbery he didn’t let the guy get in the car twice but finally he did.
   - Statutory law ONLY applies to principal offenders.
   - Common law applies to participators.
   - Defence of duress available even in murder if participator but not principal.
   - NOT GUILTY

Mena (1987) Ontario CA
   - He committed robbery (which is excluded in code). He was principal.
   - Court said that if he was threatened to be there then he only aided and could get
      common law defence.
          o He only put money in bag and shit.
   - Jury should have decided if he was co-principal or not; but it was THEIR choice.
   - Thus, when defence of duress involved, whether perpetrator could have escaped
      is up to the jury.
          o But if it is obvious that he DID and he didn’t use it, then judge doesn’t
              have to.
   - NEW TRIAL ORDERED

Hebert (1989) Supreme Court
   - Guy falsely testified on stand, but he tried to make it look fake. So deciding
       whether he had intent to lie or not.
   - If defendant had safe escape then he shouldn’t have duress. But in this case he
       tried to make it look fake so someone would know.

Hibbert (1995) Supreme Court
   - Duress won’t negate mens rea except in EXCEPTIONAL circumstances.
   - Duress is like necessity in every way except that in duress it’s a human
       threatening you, in necessity it’s anything.
   - Safe avenue of escape just means if there was a legal way out.



                                                                                           39
            o Modified objective
    -   Difference between negligence and duress is the notion of voluntariness. Even in
        negligence you still do your acts voluntary.

Ruzic (2001) Supreme Court
   - Someone threatened her family. She came from a place that didn’t trust police.
   - But duress in it’s VOLUNTARY sense is a principle of fundamental justice to
       not punish someone.
           o A person in the absence of volition is always excused.
           o Otherwise it would conflict with the principle that we are all free and
              autonomous.
   - Similarly, moral involuntariness is protected because the person didn’t choose
       what he was doing.
   - Immediacy requirement conflicts with charter because people still act
       involuntary even though the person isn’t there.
           o Threats of future harm are sufficient
           o However, must be a close temporal link between threats of harm and
              offence.
                   MUST instruct jury of this when putting to them defence of
                      duress
   - It is against Charter to punish accused who has been psychologically tortured to
       the point where her acts were involuntary.


Self Defence

Cinous (2002) Supreme Court
    - Criminal who thought there was a conspiracy to kill him
    - Shot him at back of head
    - GUILTY
    - 3 elements to Self Defense
   1. Existence of unlawful assault
          a. It only has to be reasonably believed that it will take place
   2. reasonable apprehension of a risk of death or grievous bodily harm
   3. reasonable belief that it is not possible to preserve oneself from harm except
      by killing the adversary
          a. He must not only rule out a couple choice, must have NO alternative
    - ALL 3 of these elements must be met
    - ALL 3 are modified objective.
    - ALL must have air of reality to put to jury
    - Air reality is whether jury COULD conclude, not SHOULD.
    - Objective is the reasonable person, NOT the reasonable criminal.


Lavallee (1990) Supreme Court
   - Battered woman’s syndrome.



                                                                                      40
    -   Expert evidence on psychological effect of battering is necessary and relevant to
        see the mental state of accused
    -   The normal person (jury) wouldn’t be able to appreciate the circumstances
        without it.
    -   Definition of reasonable MUST be adapted to situations which are foreign to the
        reasonable person.
             o In case of battered woman, it is reasonable BATTERED WOMAN
    -   The reason why the courts interpret imminent like at gunpoint or whatever is
        because they have to make sure that lethal force is really necessary. But in
        battered woman’s syndrome it’s different.
    -   3 stages to Battered syndrome: 1( tension building; 2) acute battering incident; 3)
        loving contrition. Must go through this cycle TWICE
    -   You can’t understand the bettered view unless you understand the cumulative
        abuse she suffered over the years.
    -   Also she is so used to getting beaten that she can PREDICT when it will happen.
        She can predict the nature and EXTENT of it.
             o So maybe she was in imminent danger
    -   it’s like she is getting murdered by installments
             o eg if she was a hostage and he said he would kill her in 3 days.
    -   Battered women usually can’t leave their spouses. MYTHS
    -   At any rate, just because you didn’t leave your spouse, doesn’t mean a situation
        can’t arise where you can claim self defense.
    -   Plus you never have to retreat from your home in self defense claims.
    -   Rejects rule that danger must be imminent. It is only a factor to consider.

Petel (1994) Supreme Court
    - Accused charged with murder of Raymond. Raymond was friends with Edsell
        who constantly threatened and beat up daughter of accused.
    - Edsell came to her house one day and forced her to weigh cocaine and hide his
        gun. She shot him and thinking that Raymond was lunging at her killed him.
        NEW TRIAL
    - Judge should have let jury get expert evidence about ACCUSED state of mind
        resulting from previous attacks/threats.
    - Jury should be charged that it may be relevant that previous attacks make the
        accused think the way she did.

Malott (1998) Supreme Court
   - Accused was in an abusive relationship with deceased. One day deceased started
       choking her and told her that she had to start listening. He then tried to get some
       medicine but when he couldn’t accused shot him cuz she was scared he would
       hurt her from being mad. Then she shot his gf too. GUILTY!
   - Jury should be charged with the following:
           o Why an abused woman might remain in an abusive relationship:
               expert evidence to explain it.
           o Nature and extent of the violence that may exist in a battering
               relationship and how it affected accused.



                                                                                         41
           o Accused ability to perceive danger from her abuser.
           o Whether accused believed on reasonable grounds that she could not
               otherwise preserve herself from death or grievous bodily harm.
    -   you don’t need to instruct the jury on EVERYHTING said in Lavallee but as a
        whole you must look to see if it’s adequate.

Rant about Battered Women’s Syndrome
   - We admit expert evidence as a recognition that women have been treated unfairly
       in the past.
   - It shouldn’t end with self defense, we should admit it with other defenses too: eg.
       Provocation, duress, etc
   - Battered women’s sundrome is NOT a defence on its own. A battered woman can
       kill without self defense. It’s just to show the psychological aspect of the woman.
   - Women’s experiences and perspectives may be different than men’s.
            o This informs that the court that is reasonable reflects woman’s views as
                well.
   - There is a new stereotype with battered women, that women who demonstrate too
       much strength, or are black can’t be battered women.
   - Environmental factors may also be understood to explain why a woman doesn’t
       leave. (eg: can’t get a job, retaliation of man)
   - Men can benefit from Battered Women’s syndrome too but the reality of it is that
       it will almost never happen.


Automatism

Rabey (1980) Supreme Court
   - Guy was in love with a girl. Found her notebook that called him a nothing. Killed
       her.
   - Automatism is a term used to describe unconscious, involuntary behaviour, the
       state of a person, who, though capable of action, is not conscious of what he is
       doing. It means an unconscious involuntary act, where the mind does not go with
       what is being done.
   - Once automatism is determined, must see if there is a disease of the mind.
           o This is a question of law for judge to decide.
   - The rule is that judge decides WHAT constitutes disease of the mind, but trier
       looks at evidence to see if accused falls within this scope
   - Automatism is EXTERNAL (like trauma), mental disorder is INTERNAL
           o Mental disorder is only if it makes accused not realize his actions
   - Ordinary stress and common occurrences do not constitute disease of mind.
           o So in this case it was a disease of the mind because rejection has no
               external factor like a hit.
   - Because he never dated anyone before, it created an abnormal condition in his
       mind.
   - NEW TRIAL




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Dissent
    - A defence that the act is involuntary entitles accused to an acquittal.
    - If a person acts both autonomous and insane, then insanity prevails.
    - No medical evidence shows that he suffered disease of mind.
    - Basically trying to say that you CAN be autonomous without external blow.
    - He had no disease of the mind and experts testified that the chances are very slim
        that he could become this way again.
    - It’s like a thin skull
    - Parnerkar: Psychological trauma can cause automatism if the following other
        conditions are met:
            o There must be no disease of mind
            o Condition must not arise out of some pre-existing patholigcal condition or
                disease
            o Condition must not be attributable to some self advanced incapacity, such
                as the consumption of liquor.
            o Condition could not have been reasonably foreseen as a result of the
                particular act of omission or commission.
            o Disease of the mind is any mental disorder that manifests itself in
                violence and it PRONE TO OCCUR.
                     This is NOT law in Canada, it doesn’t have to re-occur; Dissent
                        disagrees saying it should be the case
    - Assumption of sanity is in Crim Code
    - Person shouldn’t be sent to hospital unless likely to reoccur
    - Policy reasons for not allowing automatism for psych blows: people will FAKE
        it.
    - No reason why emotional blow is considered automatism in some circumstances
        and mental disorder in others: eg: situation where someone threatens to kill you
        may be automatism.
            o Can’t accept the notion that an extraordinary event is automatism if
                everyone subjected ot it would have it, but not realize the think skull of
                others.
    - There still has to be requirement of SHOCK. Can’t get it from low thresholds,
        that would be stupid to allow ppl who surrender easily to get defence.
    - Disease of mind can change daily depending on advances


Sleepwalking
Parks (1992) Supreme Court
    - he has always slept deeply.
    - Years leading up to incident were very stressful.
    - He had excellent relationship with parents in law.
    - NOT GUILTY
    - 3 points emerge from testimony
          o respondent was sleepwalking at the time
          o Sleep walking is NOT psych illness




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          o No medical treatment other than good health practices, especially in
            regards to sleep.
    -   SHOULD NOT use preventative power to make accused do stuff
          o Acquittal is acquittal
          o Suppose someone is acquitted because delay in trial. Should you then
            STILL impose sanction even though gilt hasn’t been established to
            prevent future crime?

Mental Disorder
- makes someone not appreciate nature of act OR Knowing that the act is wrong

Simpson (1977) Ontario CA
   - Personality disorders are capable of forming disease of the mind.
   - Diseases of the mind CAN evolve and include more stuff as time progresses.
   - Although someone may have disease the mind, it doesn’t operate as defence
      unless it made them incapable of appreciating the nature and quality of the act or
      that it’s wrong.

Cooper (1980) Supreme Court
   - Different psychiatrists determine what constitutes disease of the mind differently.
   - Disease of the mind was used because it excludes self induced behaviour like
      intoxication. Yet at the same time is very broad and allows people to argue their
      point.
   - Disease of mind is ANY illness, disorder, or abnormal condition which impairs
      the human mind and its functioning. This excludes self induced states and
      transitory mental states like concussion.

Appreciating Nature and Quality of Act
Cooper Supreme Court
   - There is difference between KNOW and APPRECIATE
   - To “know” may mean merely to be aware of the physical act, while to
      “appreciate” may involve estimation and understanding of the consequences of
      the act.
   - In law the person must not merely know what his act can do, but appreciate the
      nature and consequences of it.
   - The Test is: was the accused person at the very time of the offence- not before or
             after- by reason of disease of the mind, unable to appreciate not only the
             nature of the act but the natural consequences that would flow from it? In
             other words, was he deprived of foreseeability?
   - Legally relevant time is time of commission.

- Simpson: lacking feelings of remorse because of disease of the mind is not good
enough.

Abbey (1982) Supreme Court




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    -   He trafficked cocaine. Thought he had a higher power. He knew it was wrong,
        but didn’t appreciate consequences of his act. GUILTY
    -   He appreciated some nature of the act but he lacked a very important one: penal
        sanction. This is enough for mental disorder according to code according to CA
    -   Court failed to determine what it is he needs to appreciate!
            o Failing to appreciate penal sanction is NOT GOOD ENOUGH
            o He still knew that what he was doing was against the law
    -   No defense of irresistible impulse, unless that is the mental disorder

Knowing That the Act is Wrong
Chaulk and Morrissette (1990) Supreme Court
    - Accused believed they had power to rule the world and killing was necessary
        means to an end
    - They knew the law but felt they were above it.
    - Wrong means knowing it was criminally wrong AND morally wrong.
           o Parliament used the word wrong, not unlawful in their definition
           o M’Naghten’s case said “good or evil, right or wrong”
                   Also said that if the accused was conscious that the act was one
                      which he OUGHT not to do and if that act was at the same time
                      contrary to the law of the land, he is punishable.
           o It wouldn’t open floodgates either because
                   What is illegal and moral usually don’t differ
                   Moral wrong is not to be judged by the personal standards of the
                      offender, but by his awareness of what society thinks.
                   PLUS all this has to still be linked to disease of the mind
Dissent:
    - They only have to know that it was EITHER legally wrong or morally wrong, not
        both.


Oommen (1994) Supreme Court
   - Accused believed that woman was part of conspiracy to kill him so he killed her
     (all by disease of the mind). He knew that his act was wrong but he felt he had no
     choice. COULD RAISE INSANITY DEFENCE
   - Knowing right from wrong is an ability to know that a particular act was wrong
     in the circumstances.
          o Here, the accused felt justified in doing what he did.
          o Doesn’t matter if he had a general understanding, he had to know at the
               time.
          o If he could not reason properly at the time, it can be said that he would
               not know that what he was doing was wrong.
   - This shouldn’t be taken to give criminals who have a lack to appreciate right
     from wrong a defence. If they have the intelligence to know but just fail to use it,
     it’s still their fault.




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