Actus Reus & Mens rea Correspondence between the two Actus Reus Mens Rea Conduct Intention Circumstance- Knowledge Consequence- Recklessness Miscellaneous. Division of Powers – Criminal law is Federal Jurisdiction and deals with evil and injurious acts. If in Pith and substance a law is regarding criminal law then it is Federal Jurisdiction. A Provincial Law will be struck down Switzman v. Elbing (14) re: printing Bolshevik Material R.v. Mortgentaller (15) re: provinces prohibition of abortion with penal consequences Interpretation of statute Look to Common Law – look to common law interpretation Jobidon (23): one can not consent to the infliction of bodily harm, therefore can not consent to assault or manslaughter. Vagueness – a provision may be struck down as vague, or the court may impose conditions R.v. Heywood (27) law regarding loitering is overly vague CFCYL v. Canada: Law is vague. Court imposes a number of limitations to make the law work instead of declaring it vague. Interpretation R. v. Pare (41). Man sexually assaulted a boy, and killed him 10 minutes later. The meaning of „while committing‟ is examined. Out of context (i.e. dictionary) it would lead to acquittal. In context, the boy was still being dominated, so guilty of 1st degree murder. R. v. Goulis (37): Consider the meaning of „conceals‟. In context it is next to positive action words, therefore conceal is not equivalent to „fail to disclose‟. The doctrine of strict construction gives benefit of doubt to the accused. o Interpret strictly for inculpation o Interpret broadly for exculpation Limits on Criminal Law: the Harm Principle Criminal Law does not only enforce morality Ex: repeal of homosexual laws
Harm principle: R. Malmo-Levine (78). Federal gov‟t can prohibit drug use even if one demonstrates that there is no significant harm to people or one‟s self. i.e. Harm is not necessarily a component of criminal law. Court finds enough harm, however, to vulnerable groups to justify a potential prison sentence. Not unconstitutional because there is the potential of harm to others. Use harm, not morality to justify other crimes o Ex: child pornography offends equality, dignity o Sado-Masochism implies one can consent to assault, which is not possible Proof: Woolmington v. DPP (261): Burden of proof lies with the prosecution, beyond a reasonable doubt. Defense does not have to prove contrary; they only have to raise a reasonable doubt regarding the prosecution‟s case. Man killed his wife. TJ incorrectly instructed that it prosecution proves he killed her, then D would have to prove it is an accident. Makes the presumption of malice. This is another element that must be proved, and D needs only to raise a reasonable doubt as to its existence to rebut it. Only in automatism and entrapment does the burden of proof shift to D, and to a balance of probabilities, not a reasonable doubt standard. Oakes Test (266): Criteria for evaluation validity of a law that violates Charter 1. Objective of Legislation is of sufficient importance 2. Reasonably & demonstrably justified a. Rational connection to attainment of the objective b. Minimal impairment of the right/freedom c. Proportionality between benefits and harm. In Oakes, the law regarding possession as trafficking was found to be unconstitutional because it is not rationally connected to the goal of preventing trafficking. R. v. Lifchus (280): Quantum of proof. Reasonable doubt is tied to the presumption of innocence. Burden on Prosecution to address doubts. More than probably guilty, there must be no reasonable doubt as to guilt
Actus Reus – the guilty act Voluntariness R. v. Ruzic (290) moral involuntariness does not negate actus reus or mens rea, it is D Ruzic smuggled drugs, but under duress of threats to her family Criminality is ascribed to acts 1. of a conscious mind 2. an autonomous will She had both of these, was acquitted on other grounds Cotemporanaeity – actus reus and mens rea must occur at the same time Fagan v. Metro Police (292) – mens rea can occur during actus reus D accidentally drove onto policeman‟s foot. Once on his foot he realized his action, but refused to move the car. Held guilty of assaulting a police officer. Once he knew he was on his foot the actus reus and mens rea were cotemporal. He then had a duty to move the car as soon as possible. Dissent held that a failure to act could not be construed as assault. R. v. Miller (295) – once mens rea occurs during actus reus, you adopt the act. A squatter fell asleep with a cigarette. He woke up and noticed it had started a fire. He then simply changed rooms and went back to sleep. The fire burned down the house. Held once conscious that one is engaged in an act and one does nothing in his power to 1. rectify the act or 2. rectify the consequences of the act, Then one adopts it (endorse it). Unintentional act followed by an intentional omission amounts to recklessness (applies only to crimes where mens rea is recklessness). Therefore there is no need to construe an omission as a commission, as in Fagan. R. v. Cooper (297) Man strangled a woman to death. He recalls beginning to strangle her, then blacked out. Held guilty of murder, he had the mens rea (foresight of death or bodily harm likely to cause death) and began performing the act at the same time, even though he was not conscious when she actually died.
Inaction/Omission – generally not criminal unless express by statute. The problem with punishing omissions is where does it stop? how does on prove it? It puts an unfair burden on people to continuously act, akin to being crime busters, because if they don‟t act on a situation they may be held responsible. Moore v. Queen (301) A cyclist was stopped by a police officer and refused to give his name. Court held that there is a duty of a police officer to try and ascertain the name. Imposed a reciprocal duty to give the name, or else one is obstructing justice. Strong dissent. No duty to give a name under statute or common law, unlike for motor vehicles where one must give identification. Further, one has the right to remain silent. An Omission should not be a criminal offence. R. v. Thornton (307) – common law duty omitted. Thornton gave blood knowing he was HIV positive. Charged with nuisance, failing to discharge a public duty. Legal duty is equivalent to a duty imposed by law. The duty is imported from common law principles of tort, where a duty is imposed to refrain from foreseeably harmful action. Held he is guilty. Status – used to be more prominent, is used much less now. Membership in a group, or being at a place is enough for a conviction. Ex, being at a bawdy house R. v. Terrance being in a stolen car is not possession of the car Circumstance – implies knowledge of circumstances Ex assaulting a police officer implies knowledge that he is an officer Assault includes knowledge that consent does not exist Arson-disregard for human life requires knowledge that people are in the building
Causation – An act which causes a result. Smithers (327) assault causing death is manslaughter Smithers kicked a boy in the stomach. Victim died as a result from a rare aspiration condition. Prosecution had to establish assault, 1. application of force without consent (predicate offence) 2. it resulted in death (causation) This leads to a guilty verdict of manslaughter, even though death or serious harm was not foreseeable. Not a subjective aspect of the crime, only the assault is. Cribbin (332) at least a contributing cause, not operative cause of death Cribbin and a friend beat up the victim, although the friend did most of the damage. Victim died in a pool of his own blood. Argued that assault was not the operative cause of death. Held the assault caused the death. It need not be the operative cause of death, just a contributing cause of death. Manslaughter = an unlawful act with objective risk of bodily harm and is at least a contributing cause of death. R. v. Nette (343) – level of causation is the same for all crimes of murder, significant or substantial. Nette Hog-tied an old lady while robbing her, and she later died of asphyxiation. Held the causation standard is the same as Smithers (although they modified it slightly) more than de minimis more than insignificant significant or substantial However, once a conviction for homicide is found there is a second level of causation used to determine if the murder is 1st degree. Statutory provisions regarding causation S. 224: death is caused by accused notwithstanding that the death could have been prevented by resorting to proper means S. 225 death is caused by accused notwithstanding immediate cause of death is proper or improper medical treatment S. 226 death is caused by accused notwithstanding the effect of the injury was only to accelerate his death from an unrelated disease or disorder S. 228 does not cause death by acting on the mind alone, except in the case of children or sick persons by willfully frightening them.
Menezes (361) intervening act breaks causation Menezes and a friend were street racing. When coming up to a turn, Menezes slowed down. His friend continued and crashed and died. Charged with criminal negligence causing death. Held that slowing down, withdrawing from the act, broke the chain of causation, not guilty. R. v. Reid + Stratton (366) – intervening act breaks chain of causation Reid + Stratton beat a guy up. Noticing he was unconscious they tried to resuscitate him. This caused vomit to be forced down his throat, causing death from asphyxiation. Held not guilty. Administering CPR breaks the chain of causation of death occurring from assault. He died from the CPR, not the assault; the assault is not the cause of death.
Mens Rea – common law definitions, statutory attempts to codify have failed. Types of Mental Fault Malice, Fraudulent, Negligently (recklessly), Knowingly Subjective states of Fault Buzanga (418) If a person‟s acts are likely to produce a consequence, and he does it, one can infer that he intended it to happen Can use the concept of what a reasonable man would have believed However, these can be used as evidence as to intent only, not proof of intent. Intent is subjective, and the ultimate goal is the subjective state of mind. R. v. Lewis (419) – diff between motive and intent Motive is not part of the criminal act, but can be the reason or goal of the act Intent is the criminal aspect of the act Motive is always relevant evidence For the prosecution it can help persuade jury to find intent For the D, absence of motive can help persuade the jury against intent. Intent can be interpreted broadly, or narrowly in the sense of purpose R. v. Steane: Broadcasting with intent to help the enemy. He did broadcast, but his intent was to save his family, not to help the enemy. He did have knowledge of circumstance and consequence, therefore one could presume that he intended the natural consequences of his action However, although he did it in purpose he did not intend the natural consequences because of coercion, not for the purpose of helping.
Hibbert v. Queen ( 426) duress does not negate intent, intent = with knowledge of consequences Hibbert, under duress, helped another lure the victim out of his house so the other could shout him. Argued Duress negated mens rea of offence. SCC held that intent in the statute was equivalent to purpose, knowledge of consequences, not desire. Hibbert knew the consequences of his actions, so duress could not negate that he understood the purpose. However, he can still rely on the common law D of duress, it just won‟t negate the mens rea for the offence.
Buzzanga + Durocher (430). Willfully means „for the purpose of‟ Accused distributed controversial literature to promote the French Language. Charged with publication with willfully promoting hatred. Willful can mean 2 things 1. On Purpose, not by accident, which requires knowledge of publication 2. To bring about a consequence, instrumental Clearly the distribution was not accidental. The assumed minimum mens rea is recklessness as to knowledge. By substituting willful for recklessness the statute raises the level of mens rea, from recklessness as to distribution, to instrumentally trying to bring about a consequence – to willfully promote hatred. Court held that willfully meant „for the purpose of‟ promoting hatred‟. Clearly they were not trying to promote hatred, so they were acquitted. R. v. Theroux (438), mens rea for fraud is awareness or recklessness Fraud includes depriving a person or the public of money or property, knowing that their property is at risk. Theroux did not know that he put others‟ property at risk. SCC declared the mens rea for fraud is knowledge, or recklessness with respect to that knowledge. Negligence (not knowing) is not criminalized in fraud. Willful blindness and Recklessness – both an extension of knowledge R. v. Sansgret (444) – honest mistake can be willful blindness Sansgret coerced ex-girlfriend into sex. She consented out of fear because he had a knife. He claimed that he actually believed she consented. He did not inquire as to her consent, and claimed honest mistake of fact. SCC accepted the honest mistake of fact However held that he was willfully blind as to the truth. When a person becomes aware of the need to make inquiries regarding truth and declines to do so because they do not want to know the truth. Willful blindness is equivalent to knowledge itself Related to Recklessness, which is knowledge of potential adverse consequences, and continuing to pursue the goal regardless. Ex: lack of consent would be known and disregarded.
Objective State of Fault Offences Criminal negligence Dangerous driving Careless use of firearm Predicate offences o Unlawful act manslaughter o Unlawfully causing bodily harm o Failure to provide necessities of life (crim neg causing death) Tutton & Tutton (454) Parents charged with crim. Neg. causing death. They were faith healers, and believed that their diabetic child would be healed by God and not insulin. SCC split on whether to use an objective or subjective approach to „wanton or reckless disregard for the lives or safety of other persons‟ Objective Std: Criminal negligence is aimed at socially injurious behavior, authorities dictate an objective standard, with subjective perception of the accused. Subjective std: Reckless clearly indicates that knowledge is required, and this implies a subjective awareness of risk. R. v. Waite – drunk driver hits church hayride Dangerous driving is subject to a purely objective test based on a reasonable driver In criminal negligence, the mental element is “awareness of the prohibited risk or willful blindness to the risk” Hundal (460) – Penal negligence, marked departure from the std of care Driver drove a dump truck into an intersection on a red light and killed another driver. Charged with dangerous driving causing death. SCC held that for driving offences the mens rea is an objective standard, assessed in the context of all events surrounding the offence (traffic, time, visibility, etc…), that were subjectively known by the accused. Trier of fact must determine if there was a marked departure from the std of care. Accused can raise a reasonable doubt as to what risks a reasonable person would have been aware of in the circumstances. DeSouza (474) S.269unlawful act Causing bodily harm, objective foreseeability only. deSouza threw a bottle against a wall and a broken piece injured someone in the room. Held a conviction requires: 1. Proof of an objectively dangerous unlawful act, predicate offence
2. The risk of bodily harm is foreseeable. Creighton (462) unlawful act Manslaughter, objective foreseeability of bodily harm only. Creighton gave a lethal drug dose to a friend. Did not objectively foresee death. Minority argued for an objective foreseeability of death test, which would have overturned Smithers Majority held only objective foreseeability of bodily harm is required. If this accidentally causes death, then the accused is guilty of manslaughter. Usually the predicate offence in manslaughter requires a subjective mens rea, Ex: assault. However, other forms may only require objective mens rea themselves, meaning manslaughter can be a completely objective crime, where the minimum harm foreseen is only bodily harm and not death Courts endorses the Penal Standard expressed in Hundal Ex: criminal negligence causing death, dangerous driving causing death) Likely they will use this standard for all s.219 offences, the Ontario Court does, the Quebec court does not
Homicide – the direct or indirect causing of death All murder that is not 1st degree murder is 2nd degree murder. R.v Simpson (692, 229(a)) – test is subjective only! i.. means = purpose A man strangled a woman into unconsciousness, charged w/ attempted murder. TJ charged the jury that if he intended to cause bodily harm which he knew, or ought to have known was likely to cause death… Ont. C.A. returned for a new trial. The test for murder is subjective only. The accused must have had subjective awareness of death. Ought to know is an objective standard. R.v . Cooper (694, 229(a)) – Must have subjective awareness when beginning the act, but not necessarily at the time of death. ii. Purpose and knowledge. Cooper strangled a girl, but blacked out during. Therefore he claims he did not have the requisite subjective intent at the time of death. SCC held that although mens rea and actus reus must coincide (Pare) it is possible to form them, begin an act, lose consciousness while continuing the act. He still had awareness of the likeliness of death when he began committing the act. R. V. Fontaine (698, 229(b)) – Limit to transfer of intent. Accused attempted suicide by crashing his car. One of the passengers died, and he was charged with S. 229(b), causing death to another person accidentally, while trying to cause another‟s death. Held the intent was to cause his own death, therefore he did not have the intent for murder. Murder implies to kill someone else. o No mens rea for murder – no murder R. v. Tennant & Naccarato (703, 229(c)) – Objective risk of death was used to infer subjective awareness. However, for 229c subjective awareness is not required – may be unconstitutional, pre-Charter After an argument, Naccarato got a gun. However, the gun went off by mistake. Found guilty under s.229(c), because he was pursuing an unlawful object (procuring a weapon) and death ensued. Objective risk of death was used to infer subjective awareness of death. However, this is murder w/o specific intent to kill.
R. v. Vasil (705 229(c)) – Did not have subjective foresight awareness that people were in danger. Vasil caused a fire in his girlfriend‟s house, but didn‟t know the kids were in the house. They died and he was charged with s. 229c. The SCC attributed subjective factors to the objective standard. Objective foreseeablity of death depends first on knowledge that the children were in the house. Held not guilty Vaillancourt, Martineau, (709,717, s. 230) – Felony murder is unconstitutional In both cases the accused were involved in a robbery. In both cases there was neither objective nor subjective awareness of death (one thought gun was not loaded, other did not know that his accomplice had a gun at all). SCC held that these violate s.7 of the Charter. Stigma of murder requires subjective awareness of death. In obiter they suggest that s. 229c may be unconstitutional as well. 1st Degree Murder (s. 231)– once the fault element of murder is already proved the crown must establish even higher fault to convict of murder. R. v. More (723) Planned and deliberate More, depressed, planned to kill his wife and himself. He succeeded with his wife. Crown had to prove: 1. Meant to cause death (elements of murder s. 2290 2. Accused planned an deliberately caused death o Deliberate means considered, not impulsive o Planned means having considered and weighed the nature and consequences (Widdifield) R. v. Nygaard (724) – 1st degree murder with only intent to cause bodily harm, if it is planned and deliberate. Nygaard planned and deliberately beat a man with a baseball bat. However, he only intended to cause bodily harm, not death. 1. According to 229(a)(ii) he meant to cause bodily harm that he knows is likely to cause death – therefore guilty of murder. 2. According to S.231 murder is 1st degree when it is planned and deliberate Harbottle – held the victims legs while strangled Test of “substantial causation” needed to elevate murder to first-degree murder i.e. the Accused must play a “very close, active, substantial role” in the murder
“The substantial causation test requires that the accused play a very active role – usually a physical role – in the killing.”
R. v. Collins (725)– murder of a police officer Held not to be unconstitutional. o The substantive offence is murder, which must be proved s. 229. o Once proved, certain conditions warrant classification as 1st degree. One of these is killing a police officer acting in the course of his duties. o Not an absolute liability offence, requires knowledge that he is a police officer. o Not arbitrary, but serves a valid purpose R. v. Russell (731) – Murder while committing a crime of domination Russell was committing a sexual assault. While his ex-girlfriend was still bound, he went downstairs and killed her roommate. Argued that 1st murder is restricted to killing the person you are abusing. SCC held that it is not necessary for it to be the same person, as long as the domination continues and there is a close temporal and causal relationship (Pare) If parliament intended for it to be the same person they would have made it expressly so, ex s. 231(6) Some dissent regarding the close temporal and causal connection in this case
Sexual Assault Historically has dealt with non-consensual heterosexual intercourse, but not between a man and wife. The offences of rape and indecent assault were repealed in 1983, and replaced with sexual, aggravated and assault w/weapon Major overhaul between 1975 and 1991 to dispel sexist views about rape o Indecent assault used to have a more severe sentence for men than women (10 yrs for men, 5 yrs for women. o Rape was committed by a man only, with a woman, who is not his wife, w/o consent. Gender and act specific, with a marital exemption o Marriage = irrevocable consent o Requires sexual intercourse specifically, excludes other forms or sites of penetration Ex, with an object or anal Several rape provisions have been enacted o S.276 (rape shield) – character and previous history of accused are not relevant at trial o S.274 – 3rd party corroboration is no longer required (a witness to rape?) o S.275 – Abolishes doctrine of most recent complaint. R. v. Chase (638) – Assault is sexual assault when the act is sexual in nature. Accused grabbed the complainant‟s breasts Held: touching w/o consent is assault. The touching was sexual in nature, violates the sexual integrity of the complainant Inferred from the part of the body touched From any words used during the assault. Pappajohn (639) honest mistake of fact, not a reasonable mistake. Pappajohn and his real estate agent had a long lunch, then returned to his house to look at the house. They ended up having sex. She claims it was not consensual, and he claims that it was. 6 of 7 judges agreed that honest mistake of fact is a valid D to sexual assault. Further they held that it does not have to be a reasonable belief (agree w/ Chase). However, it was held that there must be an evidentiary foundation for this belief, an air of reality, more that just an assertion by the accused that he believed it. Evidence includes the events leading up to the act, her reaction, etc… Morgan (HOL) – honest, not reasonable, mistake of fact. An army Sargent told his officers to sleep with his wife, that she would fight, but she likes it.
Held: this was an honest but mistaken belief as to consent by wife, however, not a reasonably held belief. Sansregret (649) – willful blindness is not an excuse. Although the accused honestly did not know about lack of consent, he was willfully blind, and did not inquire even though it was necessary to inquire. See above on willful blindness. R. v. Ewanchuk (668) Onus is on accused to inquire after a rejection (a NO) Accused invited the complainant into his van for a job interview. Made 4 sexual advances. The complainant was afraid of violence, and tried to remain calm, so her outward appearance may have been calm. However, she did say No after each time he tried to initiate contact No penetration, however there was pelvic grinding and massages. TJ found „implied consent‟ because she did not effectively communicate non-consent by her actions. Therefore the crown could not establish lack of consent by the complainant and he was acquitted. Alb. C.A. upheld the acquittal, stating the act was „hormonal, not criminal‟ SCC – completely overruled both courts Actus Reus - For sexual assault there must be: 1. An assault – there was touching 2. It must be sexual – and it was 3. Lack of subjective consent by victim Consent (or lack of consent) by complainant is subjective, not objective Based on the credibility of the victim‟s testimony, and corroboration with her version of the facts Implied consent does not exist, ever, especially not through inaction. Mens Rea – Accused must know or be willfully blind as to consent. D of honest mistake of fact is open to the accused Given the 4 no‟s the onus shifts to the accused to get positive establishment of consent To continue w/o more information would be recklessness or willful blindness. Held, she was touched sexually, without her subjective consent. Implied consent from inaction does not exist. The accused had the requisite mens rea because the onus is on him to establish consent, especially after having been communicated a lack of consent. Simply waiting for a bit of time to pass before continuing is not enough to establish consent. L‟Honoreux-Dube (concurring, more severely) Sexual assault is a form of discrimination against women, given 99% of offenders are male, 90% of victims are female.
Blasts Ab. C.A. for supporting myths about women in rape o Lack of consent could not be any clearer, no means no o However courts interpret no to mean „try again‟ o Construe women as being in a constant, default state of sexual consent To suggest women invite these circumstances on themselves adds insult to injury A „ hormonal not criminal‟ description is ludicrous. To suggest that it could have been remedied by a traditional slap in the face is also ludicrous o Rape is the only crime where it is incumbent on the victim to „fight their way out‟, and better dealt with personally and kept out of courts o Only act which requires physical resistance to establish lack of consent. Ewanchuk is a dirty bastard and deserves jail for sexually assaulting women!
No Consent (s. 273) Consent is given by a 3rd party Person is not able to consent Consent is obtained by abusing authority Complainant expressed a lack of agreement, either before or during.
Defences Provocation – reduce sentence from murder to manslaughter Automatism – mind does not go with what is being done – no actus reus, complete acquittal. Mental illness – not morally responsible, acquittal from crime, subject to psychiatric treatment Drunkenness – alcohol is always relevant to infer requisite mens rea (intention, knowledge), extreme intoxication akin to automatism, not to be used in crimes against the person (by statute). Provocation S.232 – A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary (objective) person of the power of self-control. o Accused must act on it suddenly, before there was time for passion to cool (subjective) o A person doing something he had a legal right to do does not provoke accused Traditionally a gender specific defence offered to men – discriminatory because it protects mainly men o Domestic murder, husband comes home to an unfaithful wife o Homosexual panic cases, where men panic from homosexual advances o Killing prostitutes who make fun of sexual performance Is there a need to reform the current Criminal Code provisions on the provocation defence, or should they be left as they are, or completely abolished? o Remove "in the heat of passion"? o Replace "wrongful act or insult" to "unlawful act"? o Reform "ordinary person" test to reflect a mixed subjective-objective test R. v. Hill (750) – homosexual panic case, modified objective standard of losing self control. Hill, a 16-yr-old, stabbed a man to death after he made sexual advances and said “I‟m going to kill you”. He was convicted of 2nd degree murder, but claims provocation. Standard is objective; would a reasonable person lose self-control? If the test were purely subjective, then a very unreasonable but subjective loss of control would be permitted, Ex: a very violent man would be justified in losing self control at any insult. However, SCC advocated a modified objective standard that includes age, sex, race and experience when necessary to understand the meaning of the insult. For example, a racial slur only has offensive meaning to a member of that race, therefore of course race would be relevant in that case. In other cases it may not be relevant. (not used in Parnekar 1974, he was therefore convicted) However, the SCC also held that the TJ does not specifically have to charge the jury that age is relevant. Therefore the initial conviction is upheld, guilty of murder.
R. v. Thibert (760) – modified objective std, legal right is a right provided for by law Man‟s wife threatened to leave him. He followed her to the bank and confronted her in the parking lot, hopping to convince her to stay. Her lover came to take her away, at which point the accused pulled out a gun. The lover then taunted him to shoot, at which point the accused retreated inward and shot. The wrongful act was taunting by the deceased. Modified objective standard used, Considered an ordinary man who has been married for 20 yrs Considered the previous encounters with the lover, and unexpectedness that he would be there that day Concluded that objectively a man in his position could have lost control Considered his subjective state of mind, whether he acted impulsively before having time to cool. He did admit to thinking about killing the accused on previous occasions However, his objective at the time was to see his wife and seeing the lover was unexpected Concluded that seeing the deceased wit his wife was a sudden insult. Held he was provoked Dissent found that the breakup of a marriage was not objectively insulting, it was not a wrongful act. Construe the situation more broadly, not just the final scene at the bank. Subjectively they considered the previous relationship of the accused and deceased, and thought it was not a sudden provocation to see him, even though unexpected. R.v. Campbell (770) – provocation can only be pleaded after murder conviction, not applicable for attempted murder. D tried to use provocation to reduce attempted to attempted manslaughter (assault?) Held: by statute provocation only applies after a murder conviction is found. Further, it does not negative the required intent for murder, it is an excuse used to account for human frailty, i.e. the absence of provocation is not implicit in murder, it is not an element that the crown must show. R. v. Cameron (772) – constitutional challenge to objective aspect Challenge that objective aspect is contrary to S.7 or 11(d) Held that the Charter is not offended. The crown must first prove all the elements of the offence beyond a reasonable doubt (i.e. subjective awareness must be shown by the crown already). The D must only raise the D after a conviction. Once raised, the burden remains on the crown to disprove provocation beyond a reasonable doubt.
R. v. Parent (774) – Extreme anger is not provocation TJ misdirected the jury as to the effect of extreme anger. Anger can be relevant in provocation, however the important aspect remain both the objective and subjective aspects of the test. On Obiter, severe anger may also lead to a state of automatism, where a person loses voluntariness (actus reus). Mental Disorder R. v. Whittle (779) – procedural aspects of trial (unfit to stand trial) is not equivalent to mental disorder as a D SCC discusses the diff between unfit to stand trial and mental disorder as a D. To be unfit to stand trial one must not be able to understand the nature or consequences of the proceedings, or not be able to communicate with D council at the time of trial (S.672) This is completely different from an accused being acquitted by S.16 for being insane during the commission of the act R. v. Swain (781) P can only unilaterally raise Insanity once accused is found guilty Old rule was that P can raise insanity anytime. 1. Held it is unconstitutional for P to raise insanity before a guilty finding. This undermines D‟s right to control his own defence. 2. However, if D raises the issue of insanity, P can help to demonstrate it 3. Once accused is found guilty, P can raise insanity independent of D This balances the two competing interests 1. D has the right to autonomy and the right to direct his own D a. If he‟s found not guilty w/o insanity then there is a complete acquittal b. If he‟s found not guilty because the crown raised insanity, then he could be subject to psychiatric evaluation 2. P has the public interest to protect, and should not sent mentally ill people to jail if they would be better served with psyc evaluation According to S.16 burden of proof to prove insanity rests on the party raising the issue, to be proved on a balance of probabilities. This was a bigger issue before amendments to the CC. A mentally ill person was held at the pleasure of the LG for an indefinite period of time. Now a mentally ill person is not held indefinitely, and the process for psychiatric review is more structured, therefore there are less constitutional issues when presuming sanity.
R. v. Chaulk + Morrisette (784) – Presumption of sanity Sanity is assumed during trial. This assumption is a violation of 11(d) of the Charter because sanity is a requisite for guilt, and it is an element that P does not have to prove. However, this is justified under S.1 of the Charter as a reasonable limit because the burden of proving sanity is too onerous for the Crown. Winko v. BC (787) – Consequence of being discharged by mental illness. If found mentally ill the accused is deemed not Criminally Responsible (NCR) and receives a full acquittal for the crime However, they are subject to psychiatric evaluation by a review board. There is no presumption of dangerousness. If they are found to be dangerous, i.e. risk of safety to the public then they must undergo treatment This is not contrary to the Charter because of the emphasis on opportunity to receive appropriate treatment Further there is a cap on maximum time held Simpson (790) Disease of the mind Insanity D requires a „disease of the mind‟ which is a legal term not a medical term This can include many disorders, including mental and personality disorders Usually diagnosed by a psychiatrist The disease must render the accused incapable of appreciating either 1. The nature and quality of the act; or 2. That it was wrong R. v. Cooper (791) – disease of the mind “Any illness, disorder or abnormal condition which impairs the human mind and its functioning” Includes personality disorders Excludes self induced states (intoxication, drug use) Excludes transitory mental states Must impair the ability to form intent to kill (for murder) Accused could appreciate bodily harm Could not appreciate the nature and quality of the act itself, risk of death o More than knowledge of the act is required for murder o One must have knowledge of the consequences, risk of death Held not guilty of murder if one can not appreciate the nature and quality of the act R. v. Abbey (797) – Failing to appreciate penal consequences is not enough
The accused is bipolar and carried drugs across the border. He understood the act and that it was wrong, but believed he was protected by a mysterious force. He was acquitted at trial. SCC held the delusion must be such as to render the accused incapable of appreciating the nature and quality of the act. Inability to appreciate penal consequences is not an issue in insanity cases. Sent back for a new trial. R. v. Chaulk + Morrisette (800) – Knowing that an act is wrong The term „wrong‟ in S.16(1) means more than „legally wrong‟ An accused will be protected by s. 16(2) if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society R. v. Oomen (806) – Knowing that the act is wrong when committing it. Man suffered from paranoid delusions and killed a houseguest believing that she was a part of a conspiracy to kill her. At trial the defence of insanity was withheld by the TJ because in general, the accused did know right from wrong. SCC sent back for a new trial Emphasize that the important aspect is his knowledge when the act was committed. There was evidence that he believed the act to be right at the time committed the crime, and would be entitled to an insanity defense. Automatism Unconscious, involuntary act, dissociative state, where the mind does not go with what is being done Negates the actus reus, voluntariness, and leads to a complete acquittal 1. Non-Insane Automatism: Dissociative state caused by some „external‟ factor. Usually a blow to the head (severe psyc blows in Stone), sleepwalking (Parks) 2. Insane Automatism: Dissociative state caused by an internal factor „disease of the mind‟, or mental disorder or disease. “Any illness, disorder or abnormal condition which impairs the human mind and its functioning” (Cooper) Again the issues of insane/non-insane was more pronounced before reform to the criminal code, because if found to be insane the accused could be detained at the leisure of the Lieutenant-Governor.
Rabey v. Queen (817) – automatism caused by psyc. stress is an internal factor Rabey liked a girl, but discovered a note in her binder describing him as “a nothing” and “just a friend”. The next time he say her he hit her on the head and choked her. Defence claimed non-insane automatism The actions were unconscious and involuntary caused by a dissociative state He was not-insane because the state was caused by a psychological blow, and is not the result of some internal cause or illness At trial the judge found that he acted in an automatistic way, and was not-insane Complete acquittal Not „not criminally responsible‟ due to mental illness Ont. C.A. (Martin) found that “the ordinary stresses and disappointments of life … do not constitute an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”. A psychological blow is an internal factor, because a regular mind should be able to bear the strain of rejection If automatistic, it would be for reasons of insanity, NCR due to mental illness SCC agrees with Ont. C.A. Automatism caused by stress must be caused by a disease of the mind, thus Rabey would be subject to psyc. Evaluation. Dissent (Dickson) To attribute psyc stress as a disease of the mind is arbitrary, not supported by evidence The onus is on the crown to prove all elements of the D, including voluntariness Once D raises a reasonable doubt as to voluntariness, there is an acquittal o Automatism is open as a D when 1. There is evidence of unconsciousness throughout 2. Expert medical opinion to support it 3. No underlying mental illness or disease of the mind R. v. Parks (834) – Sleepwalking – non-insane automatism Parks killed his parents-in-law while sleepwalking. He got into his car and drove 30kms to their house. SCC found 1. He was sleepwalking 2. Sleepwalking is not a mental disorder 3. There are no treatments available for sleepwalking No evidence that sleepwalking caused a state of mind, no mental disorder. Acquitted on non-mental disorder automatism.
Although Lamer was concerned about a complete acquittal he is powerless to impose probationary conditions on the acquittal R. v. Stone (837) – Complete reform of the automatism test Stone‟s wife severely insulted him, at which point he blacked out and stabbed her 47 times. Pleaded automatism, non-insane automatism and provocation. TJ correctly applied test in Rabey, that psyc shock is an internal cause of mental illness Put insane automatism Withheld non-insane automatism. Convicted eventually of manslaughter SCC completely overhauls the automatism defence 1. New definition for automatism “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action has no voluntary control over that action” 2. A single approach to all automatism cases a. Proper evidentiary foundation must be laid before Judge puts D to jury i. Law presumes people act voluntarily ii. Evidentiary Burden rests on the party raising the issue, the accused iii. Raise the burden to a Legal Burden, where D must prove the D on a balance of probabilities. Evidence may include: 1. Includes expert medical evidence, medical history 2. The nature of the alleged trigger 3. Corroborating evidence (eye witness reports) b. Determine whether insane or non-insane automatism should be left to jury i. Non-insane automatism is very rare ii. Judge is to proceed from assumption that it is insane, disease of the mind iii. TJ must determine whether evidence takes it out of the realm of disease of the mind. Must weigh 3 characteristics 1. Internal/external factor as in Rabey 2. Continuing danger factor, psyc history and potential for recurrence 3. Policy factors, which lean towards disease of the mind 3. After determining if automatism can be put to jury (sufficient evidentiary basis) and if it is insane/non-insane, judge must chose which one to put to jury, not both Judge must emphasize seriousness of the D, potential for abuse and feignability, especially for non-mental-disorder. Applied to the facts of Stone SCC held that the judge was right to withhold non-insane automatism from the jury because there was not sufficient evidence to suggest this. No miscarriage of justice, conviction upheld. Strong Dissent Regarding
The reverse onus and increased burden of proof Crown should have to prove voluntariness as an element of the offence „Air of reality‟ should be sufficient to put D to the jury.
Intoxication Can be used as a D against specific intent offences, because drunkenness can negate a specific intent Can not (usually) be used in general intent offences, because drunkenness can not negate the general intent (ex: to apply force). Daviault – extreme intoxication can negative general intent, akin to automatism. o Statutory response withholding it from crimes against the person
Specific Intent Murder Theft Robbery Possession of weapon for purpose dangerous to public peace B & E with intent to commit indictable offence B&E & theft Aiding an offence Abetting an Offence • • • • • • • • • General Intent Manslaughter Assault Assault causing bodily harm Sexual assault Sexual assault causing bodily harm Dangerous driving (pre Hundal) Care & Control of motor vehicle while impaired B & E & assault [general intent offence] Pointing a firearm
• • • • • • • •
Beard (888) – First case on drunkenness from UK A man sexually assaulted a girl in an alley. Claimed drunkenness as a D. UK wanted to put brakes on the D which was being used so often to justify crimes. Held drunkenness can impair the ability to form intent for crimes of intent Drunkenness as a type of insanity, incapable of forming intent Falling short of incapacity drunkenness does not rebut the presumption that a man intends the natural consequences of his actions Extent of drunkenness must be severe, or not used at all Evidentiary burden on accused to prove severe drunkenness R. v. Robinson (891) – expand D, to be used where drunkenness raises a reasonable doubt as to specific intent Beard is too narrow True, drunkenness can be used when the ability, or capacity, to form intent is impaired. Can also be used when it raises a doubt as to actual intent, actual foresight of consequences – the existence of subjective intent. To withhold D would be unconstitutional, because there could be a conviction regardless of reasonable concerning actual intent Air of reality test is sufficient to put D to jury
R. v. George (897) – D for specific, not general intent offences Accused assaulted and robbed a man while drunk. Distinction between specific and general intent offences: 1. Specific intent: drunkenness is a D for specific intent offences, because alcohol can negate the ulterior motive required in specific intent offences. a. Ex: Robbery, deprive someone of property, not just taking free property 2. General intent: Drunkenness can not negate general intent, intention is less complex a. Ex: application of force necessary for assault R. v. Leary – Voluntary intoxication can be recklessness for general intent offences Accused raped a woman and claimed drunkenness Held, drunkenness is not a D for general intent offences, like assault and rape Further, voluntary drunkenness can be seen as a type of recklessness, so even if D claims to have not actually had the mens rea, he is reckless with regards to that fact. Bernard v. Queen (901) - Affirm specific/general division, open the door specific intent defence. Man raped a girl while drunk. Held rape is a general intent offence, and general drunkenness in this case not a defence Also held that drunkenness could be potentially defence to any type of offence Dissent: distinction is arbitrary and the applicability of drunkenness should be left to the jury to determine. R.v. Penno (911) – drunkenness can not be used as a D where drunkenness is an element of the crime, ex: driving while impaired. R. v. Daviault (912) – extreme intoxication negates specific intent Man raped an old woman while extremely drunk, .4-.6 bac. Pleads extreme intoxication negates the ability to form the most basic mens rea required for general intent offences. SCC held that extreme intoxication can result in a state akin to automatism where even the most basic form of intent can be negated. This is very rare Since the state is akin to automatism or insanity, the onus shifts to the D to raise the issue, and the burden of proof is raised to a legal burden, on a balance of probabilities.
In response, Parliament has enacted S.33.1, where self-induced intoxication is no defense if it negates voluntariness of general intent with respect to crimes of assault or violating personal integrity. Self-Defence S. 34(1) – Allowed to use force to repel force, as long as there is no intention to cause death S. 34(2) – Allowed to use lethal force (intend to cause death) if o Under a reasonable apprehension of death or grievous bodily harm o Force is used under the reasonable belief that it is necessary, no alternative, to prevent harm S. 35 – Self-Defence in the case of aggression (when you are the aggressor) o Did not commence assault with intent to cause death o Under reasonable apprehension of death o Reasonable belief that force is necessary to prevent harm o Did not endeavor to cause death before necessity for defence arose o Declined further conflict and retreated as far as possible before necessity of defence arose. People v. Goetz (970) (USA) Goetz fired at 4 youths on a subway who attempted to mug him. Issue raised of reasonableness: was it a reasonable apprehension of death or grievous bodily harm? R. v. Bogue (974) Self-D under S 34(2) even if one intended to cause death A jury can acquit if D intended and did cause death if: There was a reasonable apprehension of death or grievous bodily harm Reasonably believed he could not otherwise preserve himself from death or harm R. v. Pawliuk (977) S.34(2) is more favorable because one can intent to cause death 34(1) is only available if the accused did not intend to cause death 34(2) is more favorable because one can intend to cause death Accused believed that the victim was going to kill him o Reasonable apprehension of harm or death o Reasonable belief that one could not otherwise avert the harm Entitled to point a gun at and kill victim under 34(2). R. v. Lavallee (993) Battered women in self-D
Lavallee was a battered woman. After threats she shot her boyfriend in the back of the head as he was leaving the room. She claimed self-Defence. Expert testimony as to the effects on battered women. 1. Can predict when harm is going to occur 2. Feel there is no escape from the relationship, that is why they don‟t leave the relationship SCC held that the defence of self-Defence under S.34(2) does not require imminent harm, only the apprehension of harm and a belief there is no escape. A battered woman, therefore, can both predict harm and believe there is no escape. Objective test, with subjective factors taken into account, ex: woman‟s experience. Ultimately a jury must decide if the facts support that the woman was within the ambit of the self-defence provision R. v. Petel (1002) History of abuse is always relevant in self-defence Accused was the mother of a battered woman. Her boyfriend threatened to kill them, at which point she got a gun and killed him. Honest mistake of fact regarding the actual assault is permitted for the D Even though she was not a battered woman herself, prior history of violence is relevant to determining the state of mind of the accused, and her reasonable belief as to harm and escape. R. v. Mallott (1005) – Self-D fails, lack of reasonable apprehension of harm Mallott was a battered woman. She went to the clinic with her husband to get a drug that he was addicted to. They could not get the drug. Fearing aggression, she shot him to death. Jury found that it was not reasonable that she apprehended harm SCC found that the trial judge had properly acknowledged that past experience is admissible, however, he could have stressed the uniqueness of battered woman‟s syndrome. There was no miscarriage of justice, however, conviction upheld.
MENS REA
Defined: Intention, knowledge or recklessness with respect to all the elements of the offence together with any ulterior intent which the definition of the crime requires. Criminal liability only imposed on people who “knew what they were doing”, who can fairly be said to have chosen the behavior and its consequences. Based on what accused “believed they were doing or risking” – subjective fault is necessary unless specified. Purpose ~ Conduct, instrumental, to obtain a result Intention ~ Conduct or Circumstances (Buzzanga as purpose, assault as circumstance, knowledge of the effect of movement) Knowledge ~ Circumstances (Willful Blindness as to knowledge) Recklessness ~ Consequences Negligence Strict Liability Absolute Liability Circumstance (know all the facts) Certain Morally Certain Reckless Consequences Negligent
Certain: know All the facts, and are certain that a consequence will occur. Morally Certain: know most facts, and are certain a consequence will occur Recklessness: aware of some facts, are aware of the risk of a consequence but pursue it recklessly notwithstanding some knowledge Penal negligence: not aware of facts, but aware of the potential for a consequence, do not take rudimentary steps given the severity or probability of potential harm Negligence: not aware of facts, but aware of the potential for a consequence, do not take adequate steps to avoid the risk
Manslaughter: 220 – Criminal negligence causing death
222(5) – Death cause by un unlawful act, crim neg, causing by threats someone to do something which amounts to their death, willfully frightening a child or sick person. The unlawful act must be objectively dangerous! Smithers (1978) – assault causing death = manslaughter, objective. Foreseeability of bodily harm, only, not foreseeability of death. deSouza (1992) – objectively dangerous unlawful act, objective foreseeability of bodily harm is unlawfully cause bodily harm s. 269 Creighton (1993) - objectively dangerous unlawful act Objective foreseeability of bodily harm is Unlawful act Manslaughter s. 222(5) if the person dies. (result based) Cribbin (1994) – Causation – act must be a contributing cause, not operative Nette (2001) – Causation std is beyond deMinimis, significant, not insignificant
Absolute and Strict Liability Offences – Regulatory Offences Absolute liability: no fault requirement, Actus Reus is sufficient. o No mandatory imprisonment allowed, contrary to s.7 Strict Liability: Limited fault is required o Crown must prove Actus Reus only, assumption of negligence. o Burden of proof on D to establish due diligence or lack of knowledge, i.e to disprove negligence on a Bal. of Prob. Beaver v. the Queen (274, 1954) – absolute liability offence Charged with selling and possession a narcotic. He did not know what he was selling was heroine, he thought it was sugar. Court held that the selling of the drug was an absolute liability offence, the act of selling is sufficient for conviction. Possession requires the possessor to have know, requires mens rea. R. v. Pierce Fisheries (380) – absolute liability offence Undersized Lobsters were found to have been fished. They were not aware that they had fished a few undersized lobsters. Court distinguishes between regulatory and criminal offences. Goal of regulatory offences is to protect the lobster population, a social good. The goal is not a criminal one, to punish immoral behavior. Mens rea is not required in regulatory offences. It is an absolute liability offence. R. v. Sault St. Marie (384) – Court prefers strict liability. City charged with contaminating water supply. Court showed preference for strict liability. Will interpret a statute as strict liability if: An offence is regulatory and not expressly absolute liability, There are no words like „willful‟ or „intent‟ to imply mens rea Accused open to D of Due diligence or honest mistake of fact Re: BC Motor Vehicle Act (390) – no imprisonment for absolute liability offences. Guilt is established by the act of driving while license is suspended, w/o knowledge that it is suspended. This is an absolute liability offence with a prison term possible. SCC held that this is unconstitutional.
Pontes (394) – conviction for an absolute liability offence is fine, but no imprisonment. After modifications to the BC law, the SCC still found that it created an absolute liability offence because by definition, one can not know without recklessness that they do not have a valid license. However, there is no jail term possible, so it does not offend the Charter. R v. Robert Transport – affirms that absolute liability offences are fine if there is no prison sentence, when accused‟s wheel became dislodged from his truck. R. v. Wholesale Travel – affirms the stigma resulting from a strict liability offence is not akin to a criminal charge and thus not unconstitutional to shift the burden of proof to D (due diligence), where accused was guilty of misleading advertising Corporate criminality Previously identification theory – directing mind approach, where the company had to profit as well (Canadian Dredge bid rigging, not in safety-Kleen, presenting false documents to a gov. inspector by a subordinate) Not expanded by bill C-45 o Organization, not corporation, private or public body o Senior officer not directing mind o Representative can carry out the act Party to an offence of negligence if senior officer departs markedly from the std of care expected to prevent the negligence Party to an offence of intent if committed by senior officer, under his direction, or he knew about it and didn‟t take steps to prevent it.