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Criminal Law Patrick Healy – Winter 2004 INTRODUCTION ............................................................................................................................... 4 BASIC PRINCIPLES .......................................................................................................................... 6 Principle of Legality ...................................................................................................................... 6 Frey v. Fedoruk [1950] Crimes must be known to law. ...................................................... 6 R. v. Pharmaceutical Society (Nova Scotia) [1992] Vague = no guidance legal debate ... 7 R. v. Heywood [1994] Doctrine of overbreadth created .................................................... 7 Presumption of Innocence ............................................................................................................ 7 Woolmington. v. D.P.P. [1935] The accused is presumed innocent. ................................. 8 ELEMENTS OF GUILT...................................................................................................................... 8 Conduct........................................................................................................................................... 8 Acts, omissions and states of being: voluntariness ..................................................................... 8 R. v. King [1962] Actus reus requires willpower. .............................................................. 8 Rabey v. R. [1980] Automatism is unconscious involuntary act – always a defence ......... 8 R. v. Parks [1992] Automatism not actually a “defence” – part of actus reus ................... 8 R. v. Stone [1999] Automatism = impaired consciousness – accused must prove............. 8 R. v. Lucki [1955] No legitimate purpose to sentence someone who can’t control action 9 R. v. Wolfe [1975] Intent lacking therefore can’t uphold charge ...................................... 9 R. v. Ryan [1967] Protagonist wannabe can’t argue involuntariness. .............................. 9 Kilbride v. Lake [1962] No other option available – can’t be criminally responsible .... 10 Acts ............................................................................................................................................... 10 Marshall v. R. [1969] No control over persons possessing so not guilty ......................... 10 R. v. Terrence [1983] Measure of control is essential element of possession .................. 10 Re Chambers and the Queen [1985] Possession evidence enough to go to jury .............. 11 R. v. Jobidon [1991] Victim’s consent no longer valid once knocked unconscious ......... 11 Bolduc and Bird v. R. [1967] Patient consented to peeping tom in doc’s office .............. 11 R. v. Cuerrier [1998] HIV-infected liar not guilty of assault – consent valid................... 12 R. v. Lohnes [1992] Shouting obscenities doesn’t count as disturbance ......................... 12 R. v. Burt [1985] Convicting car owner by default violates the Charter .......................... 13 Omissions and states of being .................................................................................................... 13 Fagan v. Commissioner of Metropolitan Police [1968] This omission = assault ............ 13 R. v. Miller [1983] Omitting to put out his own fire = arson ........................................... 13 Moore v. R. [1979] Omitting to identify himself to cop got Moore in trouble ................. 14 R. v. Thornton [1991] HIV+ blood donor guilty .............................................................. 14 Thornton v. R. [1993] HIV+ blood donor guilty, accept analogy to medical procedure . 15 R. v. Browne [1997] Can only recklessly breach a duty clearly made/binding intent ..... 15 People v. Beardsley [1907] Neglected duty must be legal duty, not just moral ob. ......... 15 Causation ..................................................................................................................................... 16 Smithers v. R. [1978] Kick outside de minimis range, remember thin skull rule ............ 16 R. v. F. (D.L.) [1989] Connection between dangerous driving and not seeing victim ..... 16 R. v. Harbottle [1993] Holding legs down = enough for 1st degree murder .................... 17 R. v. Cribbin [1994] Cribbin guilty for leaving victim to drown in his own blood. ......... 17 1 Fault ............................................................................................................................................. 18 Notions of fault ............................................................................................................................ 18 R. v. City of Sault Ste. Marie [1978] Strict liability between absolute and mens rea ...... 18 R. v. Wholesale Travel Group Inc. [1991] Focus not on moral turpitude, regulatory..... 18 R. v. Chapin [1979] Strict liability offence – accused can show due diligence ................ 19 Intention and knowledge ............................................................................................................ 19 R. v. Steane [1947] Steane collaborated with Nazis under threats. ................................. 19 R. v. Hibbert [1995] Purpose = intention, not desire ....................................................... 19 R. v. Buzzanga and Durocher [1979] Intention to create furor not promote hatred ........ 20 R. v. Chapin [1979] Ignore this, repeated by mistake. ..................................................... 20 R. v. Docherty [1989] Where knowledge = mens rea, no knowledge = defence ............. 20 R. v. Théroux [1993] Mens rea of fraud outlined here ..................................................... 20 Recklessness and wilful blindness.............................................................................................. 21 Sansregret v. R. [1985] The difference between recklessness and wilful blindness ......... 21 R. v. Currie (1975) Wilful blindness only where accused should’ve pursued inquiry .... 21 R. v. Blondin (1971) Jury should’ve deliberated on recklessness or wilful blindness ..... 22 R. v. Sandhu (1989) Recklessness has both subjective and objective elements. .............. 22 R. v. Duong (1998) Wilfully blind to risk of harbouring a murderer ............................... 23 R. v. Parker [1977] English test for recklessness seems exclusively objective. ................ 23 R. v. Caldwell [1981] And, English seem to conflate recklessness with wilful blindness 23 Negligence .................................................................................................................................... 24 R. v. Tutton and Tutton [1989] S.C.C. split over what test for criminal negligence ........ 24 Waite v. R. [1989] Subjective element of crim. negl. not deliberate assumption of risk .. 24 R. v. Anderson (1990) Reasonable doubt that conduct was criminal negligence ............ 25 Marked Departure Test ..................................................................................................... 25 R. v. Creighton [1993] Negligence in criminal matters requires marked departure ....... 25 Constructive liability .................................................................................................................. 26 R. v. Desousa [1992] Underlying offences can’t be of absolute liability to qualify ......... 26 R. v. Creighton [1994] (revisited) Only need foreseeability of harm for manslaughter .. 26 R. v. Krushel (2000) Criminal harassment: actus reus sufficiently blameworthy ............ 27 R. v. Barron (1984) Reversed by C.A.: how would Creighton have changed result?....... 27 Motor Vehicle Reference (1986) Substantive review ok, no prison for absolute liabil. . 28 R. v. Cancoil …. (1986) Treat provision as strict liability, due diligence available ....... 28 R. v. Wholesale Travel Group [1991] Need heavier burden on accused in strict liabil. . 28 Simpson v. R. (1981) Subjective knowledge is minimum standard for murder ............... 29 Vaillancourt v. R. [1987] Constructive murder violates the Charter. ............................... 29 R. v. Martineau [1990] Murder = subjective foresight of death beyond reasonable dbt. 30 Sexual assault .............................................................................................................................. 30 Pappajohn v. R. [1980] Honest though mistaken belief voids mens rea ........................... 30 Sansregret v. R. [1985] Wilful blindness to the risk that fear vitiated consent................. 31 R. v. Chase [1987] Sexual assault: is sexual context visible to reasonable observer? .... 31 R. v. Darrach [2000] Rape shield probisions in Code upheld .......................................... 32 R. v. Ewanchuk [1999] Implied consent not recognized for sexual assault ..................... 32 Extensions of guilt ....................................................................................................................... 33 Participation ................................................................................................................................ 33 R. v. Kulbacki [1966] Accused had authority to tell girl to drive safely .......................... 33 2 Dunlop and Sylvester v. R. [1979] Evidence doesn’t point to rape participation............ 34 R. v. F.W. Woolworth Co. (1974) Inadvertent aid ok so long as purpose is not crim. .... 34 Gamble and Nichols v. R. (1978) Evidence available to go to jury on aiding and abet. . 34 R. v. Logan [1990] Must have subjective intent for attempted murder ............................ 35 Canadian Dredge and Dock [1985] Corporate crim liability – identification doctrine ... 35 Inchoate offences ......................................................................................................................... 36 R. v. Ancio [1984] Attempted murder = nothing less than specific intent to kill ............. 36 R. v. Sorrell and Bondett (1978) Equivocal act may not be enough to prove attempt ..... 36 R. v. Deutsch [1986] LeDain’s distinction between attempt and mere preparation ........ 36 United States v. Dynar [1997] Can find guilt for attempting the impossible ................... 37 R. v. Celebrity Enterprises Ltd. (No. 2) [1977] Not unlawful if can’t be convicted for it 37 R. v. Gralewicz [1980] Case on interference with lawful union activities ....................... 38 R. v. Dungey (1979) Attempt to conspire to commit another offence is not an offence ... 38 ASPECTS OF INNOCENCE .............................................................................................................. 39 Automatism ................................................................................................................................. 39 R. v. Stone [1999] Trying to set the record straight on automatism ................................ 39 Intoxication .................................................................................................................................. 40 R. v. Bernard [1988] Recklessly getting drunk = mens rea for general intent ................. 40 R. v. Daviault [1994] Charter allows accused to show extreme intoxication defence ...... 41 R. v. Robinson [1996] How to instruct juries on intoxication defence............................. 42 Mistake of fact [Not covered on 2004 final exam] .................................................................... 42 R. v. Hess; R. v. Nguyen [1990] ....................................................................................... 42 R. v. Ladue [1965] ............................................................................................................ 43 R. v. Kundeus [1976] ........................................................................................................ 43 Duress ........................................................................................................................................... 44 R. v. Ruzic (April 20, 2001) Immediacy requirements for duress too severe .................. 44 Self-defence .................................................................................................................................. 44 R. v. Lavallée [1990] Must physical assault be in progress to apprehend death? No. .... 44 R. v. Petel [1994] Past threats are relevant in assessing apprehension........................... 45 R. v. Malott [1998] We must overcome stereotypes about battered women..................... 45 Necessity ....................................................................................................................................... 46 Perka v. R. [1984] Necessity defence is an excuse, not a justification. ............................ 46 R. v. Morgentaler, Smoling, and Scott (1985) Necessity defence unavailable here......... 46 R. v. Latimer (2001) No air of reality to defence of necessity (3 requirements) .............. 47 Provocation [Not covered on 2004 final exam]......................................................................... 47 R. v. Hill [1986] ................................................................................................................ 48 R. v. Thibert [1996] .......................................................................................................... 48 Entrapment [Not covered on 2004 final exam] ........................................................................ 49 R. v. Mack [1988] ............................................................................................................. 49 3 INTRODUCTION The "general part of the criminal law" (as opposed to "special part"): phrase that became current in the 1950s. In broad terms, to say that this course is about the general part of the criminal law is to say that it's about principles that cut across most of the criminal law. Supreme source of criminal law is the Constitution: until 17 April 1982, this meant that the power to create criminal law was reserved to the exclusive jurisdiction of the Parliament of Canada, 91(27). What does it mean to say that a matter is properly criminal, that it lies within the jurisdiction of Parliament? Supreme Court and Privy Council tried to determine what was appropriately deemed a matter of criminal law. We've reached a point where virtually any prohibition is deemed to be a valid criminal law provision. Important: there is a difference between criminal law in its strict sense and "penal law". "Penal law" can describe any form of statutory prohibition that entails a sanction. Under our theory of constitutional law it permissible for provinces to enact penal offence for the purpose of enforcing legislation that is otherwise within provincial jurisdiction. Criminal law refers exclusively to provisions enacted by the Parliament of Canada by virtue of its power under 91(27). The division of powers is only one part, but since 1982, the Charter is also an important constitutional source of criminal law. In this course, we're only likely to touch upon s. 7 of the Charter at length. S. 7 talks about the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. When s. 7 was first considered by the courts, the Government of Canada argued that this was concerned with procedural due process. In 1985, SCC in Motor Vehicle Reference decided a number of things that profoundly affected our view of the criminal law: o Most important is that s. 7 is not restricted to matters of procedural due process. o Thus courts can use s. 7 to review the substantive criminal law. o Conclusion in this reference: for offences of absolute liability (no requirement for proof of fault), it is impossible for federal and provincial legislator to impose a prison term as a sanction. o This had momentous consequences: there was a succession of challenges to laws arguing that there was something discordant between the law and the offence. So, when talking about Constitution, the two important points are: 1. Valid criminal law can only be derived from federal legislation enacted using s. 91(27) power. 2. Section 7 provides a basis for substantive review of Canadian Criminal Law. Criminal Code is not the only STATUTORY source of criminal law. Judicial decisions are also a source. 4 However, it is now (since Frey v. Fedoruk in 1950) a matter of constitutional law that courts cannot create new criminal offences. There no longer are common law offences except contempt of court. To say that all the offences that we have must be created by Parliament in reliance on s. 91(27) is not the whole story. The courts can create new defences. It should be open to the courts to find new grounds on which people should not be held liable. This has had good and bad effects... Healy's good examples: - 1984: creation of the defence of necessity. - 1988: SCC said there is such a thing as a defence of entrapment. Entrapment is a claim whereby accused can show there was abuse of process and ask for stay. Healy's bad example: - 1994: Daviault case, defence of extreme intoxication. - Up to the time that this case was decided, intoxication was only a defence to an offence of specific, not general, intent. - Assault was always viewed as an offence of general intent. - From this, it followed that intoxication was not a valid defence. - Trial judge said the degree of intoxication was so extreme as to eliminate responsibility in committing the act. He thereby expanded the intoxication defence based on the extremity of the defendant's intoxication. - In SCC, there was not one word about general intent, and they decided, essentially, that s. 7 gives us a right to acquittal for self-induced states of extreme intoxication. - If you're intoxicated, you are impaired and you can't be responsible for your actions. Argument underlying this position actually makes sense: it is a principle of fundamental justice that persons should not be convicted of criminal offences if they are in some way blameless for what they have done. It should be open for courts to reinterpret the meaning of innocence in matters of law. There is also the defence of duress: person acting under the immediate threat of harm. History of Criminal Law Common law was an important source of criminal law at the time of Confederation. Criminal law in various parts of BNA was not the same. Sir John A. Macdonald wanted criminal law to lie within the jurisdiction of Parliament given the countries magnitude. He thought that the criminal law could be seen as a unifying institutional structure. 1869, statute passed to consolidate disparate parts of pre-Confederation criminal law. 1892: Parliament enacted Criminal Code. Over the years it has grown and been revised. Every session of Parliament brings its changes. The one we have today is untidy and messy. Much of it is anachronistic and dubious on policy grounds. Large parts are unnecessarily complex. A revamp of the Criminal Code is unlikely to happen in the near future. 5 The Structure of Defences [Extremely Important] Every offence has a structure and for purely schematic purposes, Healy wants to describe it as: Where a PROHIBITED ACT (ACTUS REUS) is committed with a prescribed element of FAULT, those are the constituent elements of GUILT. If these are proved, a conviction will follow. AR + F = G (unless non-G) What does it mean to prove it? What does it mean to require the element of voluntary conduct (physical or material element)? What about criminal conduct in the form of omission? The notion of fault also raises questions. BASIC PRINCIPLES Principle of Legality Foundational idea: the principle of legality is a criterion that must be fulfilled in respect of every offence. Legality: In order for there to be a valid declaration of criminal liability... - The criminal law cannot have retroactive application - 11(b) of Charter - Criminal principles must be sufficiently precise Frey v. Fedoruk [1950] S.C.R. 517 Frey was a peeping tom on Fedoruk’s land. Fedoruk chased him off with a butcher’s knife and called the police, who arrested Frey without a warrant. Frey sued for damages for false imprisonment. Can someone be imprisoned for something (being a “peeping tom”) that does not fall within a category of offences known under the criminal law? No. Frey’s appeal allowed. People can only be prosecuted for offences known to the criminal law (either in the Criminal Code or by the authority of a reported case). Conduct that does not fall within any category of criminal offences does not become criminal simply because it provokes violent retributive action in others. FACTS ISSUE HELD RATIO NOTES Void for Vagueness and Overbreadth Before Charter, void for uncertainty was a well-recognized challenge to by-law offences. Courts here had recoiled from its availability in the case of other types of criminal sanction. 6 Since Charter, the SCC has determined that any penal law be declared unconstitutional if it is too vague. Challenges can be brought under s. 7. The court will then use s. 1 to determine whether the vagueness is prescribed by law. R. v. Pharmaceutical Society (Nova Scotia) [1992] 2 S.C.R. 606 The twelve accused were charged with conspiracy to prevent competition unduly under s. 45(1)(c) of what is now the Competition Act. Nova FACTS Scotia judge quashed the charge on the basis that the word “unduly” made the law too vague. N.S. Appeal Division overturned the ruling. ISSUE HELD RATIO Is the impugned section of the law void for vagueness? No. Appeal dismissed. A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. The “doctrine of vagueness” is a principle of fundamental justice (fair notice to citizens, and limitation of law enforcement discretion). The threshold for finding a law vague is relatively high. R. v. Heywood [1994] 3 S.C.R. 761 The accused was convicted in 1987 of two counts of sexual assault. In ’89, he was charged with vagrancy for being a person convicted of a sexual offence and found “loitering at or near a school ground, playground, public park or bathing area” contrary to s. 179(1)(b) of the Criminal Code. Is this restriction on liberty in accordance with principles of fundamental justice? Is the impugned section of the law constitutional? No. Crown’s appeal dismissed. The law violates the principles of fundamental justice because it applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review. It restricts liberty far more than is necessary to accomplish its goal. The SCC creates a “doctrine of overbreadth” in this case. Application to schools and playgrounds is reasonable, but all public parks and bathing areas is overly broad. NOTES FACTS ISSUE HELD RATIO NOTES Presumption of Innocence This is also an extremely important criterion applying to everything in criminal law. If prosecution fails to prove guilt beyond reasonable doubt, accused is innocent. The House of Lords asserted this principle only relatively recently (1935) 7 This case stands for: Woolmington. v. D.P.P. [1935] A.C. 462 It is not for the prisoner to establish his innocence but for the prosecution to establish his guilt. The accused is entitled to the benefit of the doubt. While the prosecution must prove the guilt of the prisoner there is no such burden on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt. He is not bound to satisfy the jury of his innocence. Remember AR (actus reus) + F (fault) = G (guilt) In a murder case, AR consists of proving of action with the intention of causing death. Prosecution case cannot be built on the testimony of the accused. Otherwise, this would run counter to the principle against self-incrimination and presumption of innocence. Old rule: judge would instruct jury, "A man intends the natural and probable consequences of his actions." Healy: this rule is fundamentally and categorically wrong. ELEMENTS OF GUILT Conduct Acts, omissions and states of being: voluntariness Voluntariness This case stands for: R. v. King [1962] S.C.R. 746 There can only be an actus reus where there is willpower to do an act whether the accused knew or not that the act was prohibited by law. Rabey v. R. [1980] 2 S.C.R. 513 (concerned a disassociated state) Automatism means an unconscious involuntary act and it is a basic This case principle that absence of volition in respect of the act involved is always stands for: a defence to a crime. R. v. Parks [1992] 2 S.C.R. 871 (concerned sleepwalking) Rather than being a “defence”, automatism is actually part of the actus reus component of criminal liability because it is a subset of the voluntariness requirement. R. v. Stone [1999] 2 S.C.R. 290 Bastarache preferred to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual is capable of action but has no voluntary control over that action. He also held that the accused had to prove any defence of automatism on a This case stands for: This case stands for: 8 balance of probabilities. A lack of voluntariness is not the same as a lack of mens rea. There can be a voluntary act without there being mens rea. Involuntariness is a more fundamental defect than lack of mens rea. There is not even an actus reus. You cannot be said to “have shot” someone if doing the act was beyond your control (such as when a stronger person forces your hand). The law holds people to account for acts that they think they can control. This is the basic definition of “voluntary” that circumvents any controversies between proponents of determinism vs. free will. R. v. Lucki [1955] 17 W.W.R. 446 (Sask. Pol. Ct.) In icy conditions, a motorist ended up on the wrong side of the road and collided with an oncoming car. Is the motorist liable for the accident? No. Not guilty. A person who by an involuntary act for which he is not to blame gets onto the wrong side of the road is not guilty under the section in question. What conceivable purpose can legitimately be served by imposing a sentence on someone who can't control his actions? R. v. Wolfe [1975] 20 C.C.C. (2d) 382 (Ont. C.A.) Wolfe had good reason to not want the complainant in his bar. The complainant came to the bar and refused to leave. As Wolfe was calling the cops, the complainant punched him and Wolfe turned in a reflex action and struck the complainant in the head with the telephone receiver. Wolfe was charged with assault causing bodily harm. Is Wolfe liable for the injuries that the complainant suffered? No. Appeal allowed; trial decision overturned. As a finding of fact, the trial judge characterized the receiver incident as a reflex action on Wolfe‘s part so the necessary ingredient of intent is lacking in order to uphold this charge. R. v. Ryan [1967] 40 A.L.J.R. 488 (Aus. H.C.) Ryan wanted to emulate the protagonist of a novel and rob a service station in order to play the lottery, win, and repay the attendant handsomely. As Ryan tied up the attendant, the latter made a sudden movement and Ryan’s loaded and cocked gun went off killing the attendant. FACTS ISSUE HELD RATIO NOTES FACTS ISSUE HELD RATIO FACTS 9 ISSUE HELD Is Ryan entitled to a new trial since the jury was not instructed on the issue of involuntariness? No. Appeal dismissed. If the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that that his action was involuntary so as to make the homicide guiltless. Kilbride v. Lake [1962] N.Z.L.R. 590 (S.C.) Appellant drove his care in the City of Auckland and parked it. When he parked and left it, the car had the necessary “warrant of fitness” stuck to its windshield. A cop came by and saw the car without this required warrant and issued a ticket to the appellant for violating the law, the actus reus of which entailed permitting a vehicle to be on the road and not carrying the necessary warrant of fitness. Is Appellant liable for the offence of not carrying a warrant of fitness, which disappeared in the appellant’s absence? No. Appeal allowed; conviction quashed. If there is no other course of action open to a person, he or she cannot be criminally responsible for an act or omission. This is distinct from any issue of mens rea. RATIO FACTS ISSUE HELD RATIO Acts Marshall v. R. [1969] 3 C.C.C. 149 (Alta. C.A.) Marshall appealed against a conviction and sentence of marijuana possession. He was riding in a car with people who had stashed marijuana under a seat and partially covered it with a sweater. Marshall only became aware of the marijuana late into the road trip. He chose not to leave when he found out because he had no money to get back home. Is Appellant liable for the offence of constructive (as opposed to active) possession of marijuana by aiding and abetting the others? No. Appeal allowed; conviction quashed. Marshall had no power to control the persons possessing the marijuana. He was not the owner of the car. Passing the pipe was almost a reflex action. R. v. Terrence [1983] 1 S.C.R. 357 FACTS ISSUE HELD RATIO 10 FACTS ISSUE HELD RATIO The accused was deemed in “possession” of a stolen vehicle when he accepted a ride from the person who had stolen it. What is the true meaning of possession? Is control an essential element of possession in s. 3(4)(b) of the Criminal Code? Yes. Crown’s appeal dismissed. A constituent and essential element of possession under s. 3(4)(b) is a measure of control by the person deemed to be in possession by that provision. Re Chambers and the Queen [1985] 3 C.C.C. 149 (Alta. C.A.) Chambers’s boyfriend Cardenas was staying with her and had cocaine in his possession, which he kept in the house. Police had a search warrant and busted both parties. Gray J. quashed Chambers’s committal for trial FACTS on the ground that there was no evidence that Chambers possessed the cocaine. The Crown appealed this decision pursuant to s. 719 of the Criminal Code. ISSUE HELD Could the evidence commit Chambers for trial? Yes. Crown’s appeal allowed. Although the evidence may or may not be enough to convict Chambers, it is enough to have her stand trial and allow a properly instructed jury to determine whether Chambers possessed the cocaine under s. 3(4)(b). R. v. Jobidon [1991] 2 S.C.R. 714 Jobidon got into a consensual fight with the victim outside a bar. This was a fight in which, the judge found, although there was intent to cause physical injury, there was no intent to kill or cause serious bodily harm. Jobidon’s first punch rendered the victim unconscious and after a subsequent flurry of punches, the victim lay limp and later died of contusions to the head. The trial judge acquitted; the appeal court overruled this and convicted Jobidon of manslaughter. The accused appealed. Can a person consent to a fight in private or public if actual bodily harm is intended and/or caused? Yes, however appeal dismissed and conviction upheld. Sopinka J. – The extent of the consent given by the victim did not extend to being struck once he had been knocked unconscious and the accused knew this. Bolduc and Bird v. R. [1967] S.C.R. 677 RATIO FACTS ISSUE HELD RATIO 11 FACTS Dr. Bolduc let his friend into an examination room to get off by watching an intimate examination of his female patient. He introduced the friend as “Dr. Bird” and pretended that Bird was a medical intern. Under these pretences, the patient agreed to Bird’s presence. Bird never touched the patient. Both were charged with indecent assault under now s. 244 (a)(2). Did the men commit indecent assault by fraudulent means? No. Appeal allowed; conviction quashed. There was no fraud on the doctor‘s part as to what the doctor was supposed to do and in what he actually did. The patient consented to Bird‘s being there. R. v. Cuerrier [1998] 127 C.C.C. (3d) 1 HIV-positive accused rejected a nurse’s advice to wear a condom and inform prospective sexual partners of his HIV status. He had consensual unprotected sex with two people and was charged with aggravated assault. His partners said they would not have consented had they known the accused was HIV-positive. Is the accused guilty of aggravated assault? No. Appeal dismissed; acquittal upheld. There are common law limitations on fraud for assault. Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting a serious venereal disease, does not vitiate consent. Parliament is better suited to change this in order to prevent convictions on assault charges where the fraud consisted of a promise to marry or to buy someone a fur coat. R. v. Lohnes [1992] 1 S.C.R. 167 Lohnes shouted obscenities from his veranda at his neighbour because the latter left lawnmowers and other loud things running for long periods of time. He was found guilty at trial and appeal division refused to hear the appeal. Is the accused guilty of causing a disturbance? No. Appeal allowed; conviction quashed. A disturbance contemplated by s. 175(1)(a) must be an externally manifested disturbance (as opposed to the broader ―emotional disturbance‖) of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public (this can be something as small as being distracted from one‘s work). ISSUE HELD RATIO FACTS ISSUE HELD RATIO FACTS ISSUE HELD RATIO 12 FACTS R. v. Burt [1985] 21 C.C.C. (3d) 138 (Sask. Q.B.) Someone drove a car in Kindersley, Sask at 2:45am in a manner which created excessive or unusual noise, leaving 25ft of tire marks while crossing Main Street. The RCMP followed the car, which had a two block lead, until the car pulled to the right and stopped. When the police caught up to the car, the registered owner was standing beside it. He ignored the cops and went indoors. The owner was charged under what was then s. 253 of the Vehicles Act (Saskatchewan). Does the impugned section violate s. 7 of the Charter? Yes. Appeal dismissed; trial decision confirmed. The effect of the legislation is to convict the registered owner of a borrowed vehicle of the substantive offence or actual violation committed by another. It effectively punishes the owner for the act of another and thereby violates s. 7 of the Charter. The Saskatchewan Court of Appeal confirmed this decision on the basis that there was no requirement of fault. ISSUE HELD RATIO NOTES Omissions and states of being Fagan v. Commissioner of Metropolitan Police [1968] 3 All E.R. 4425 (C.A.) A cop told Fagan to park his car at a precise spot. Fagan did so and the car ended up right on the cop’s foot and the engine stopped. The cop FACTS yelled at Fagan to get off his foot and Fagan answered, “Fuck you, you can wait.” After a minor delay, Fagan proceeded to move the car. Do the facts show that, by his omission, Fagan assaulted the police ISSUE officer? HELD RATIO Yes. Appeal dismissed; conviction confirmed. The originally non-criminal act became criminal from the moment the intention was formed to produce the apprehension which flowed from the continuing act. The actus reus and mens rea need not occur simultaneously; the mens rea can be superimposed on an existing act. Dissenting judge said that this was a simple omission on Fagan’s part and that there is no analogy between sticks or hands and cars. R. v. Miller [1983] 1 All E.R. 978 (H.L.) Miller went out for a few drinks and came back to a place where he was staying to sleep. He lay on the mattress and fell asleep with a lit cigarette. He awoke to find the mattress on fire and moved to the next 13 NOTES FACTS room and went back to sleep. The F.D. arrived. Miller said he just left the fire because he had nothing to put it out. He was charged with arson. ISSUE HELD Does not trying to put out the fire make Miller guilty of arson? Yes. Appeal dismissed; trial decision confirmed. Lord Diplock – I would adopt the duty theory as being the easier to explain to a jury. When a person becomes aware of events that occur because of his own act, he must try to prevent or reduce the risk of damage himself or by sending for help from the fire brigade. Moore v. R. [1979] 1 S.C.R. 195 Moore had run a red light on his ten-speed bike and then obscenely rebuffed a police officer when the latter told him to stop in order to write him a ticket. Moore was charged with unlawfully and wilfully obstructing a Peace Officer in the execution of his duty by failing to give his name as required by the Motor-vehicle Act. Does Moore have a duty to identify himself and did he obstruct the constable in the exercise of his duties by refusing to identify himself? Yes. Appeal dismissed. The constable witnessed Moore committing an infraction and could only have arrested him for it after identifying him so that Moore might be the subject of summary conviction proceedings. There is a strong dissent in this case by Dickson J. (Estey J. concurring) who held that there is neither a common-law nor statute-based duty for a person to identify oneself. Furthermore, Dickson J. argues, the power of arrest is such that the constable could have arrested Moore in order to establish his identity and therefore it cannot be said that Moore is guilty of the serious offence of obstructing the constable. R. v. Thornton [1991] 3 C.R. (4th) 381 (Ont. C.A.) Thornton donated blood twice knowing that he was HIV-positive. He was charged with committing a common nuisance according to Criminal Code. The Crown argued that by failing to discharge a “legal duty”, he endangered the lives, safety, or health of the public. The trial judge found a legal duty by characterizing donating blood as involvement in a medical procedure (s. 216). Did Thornton have a legal duty arising out of the common-law to inform the Red Cross of his HIV status? Yes. Appeal dismissed. Thornton‘s action clearly constitutes a breach of the common law duty to refrain from conduct which one foresees could cause serious RATIO FACTS ISSUE HELD RATIO NOTES FACTS ISSUE HELD RATIO 14 harm to another person. Judge draws, by analogy, upon principles in tort cases such as the NOTES principle in Donoghue v. Stevenson whereby in law you must not injure your neighbour. Thornton v. R. [1993] 2 S.C.R. 445 (Appeal dismissed again) Section 216 imposed upon Thornton a duty of care (Supreme Court thereby accepts the trial judge‘s analogy to a medical procedure) RATIO which he breached by not disclosing that his blood was HIV-infected. He created a common nuisance. R. v. Browne [1997] 116 C.C.C. (3d) 183 (Ont. C.A.) Browne and his deceased girlfriend dealt drugs together. To avoid detection during a strip search, the girlfriend swallowed a plastic bag of crack cocaine. She failed to vomit it up and later that night Browne found her shaking and sweating so he said he would take her to the hospital and called a cab to do so. The cab took too long to arrive and take her to the hospital, and she later died. Had Browne undertaken a legal duty to bring the victim to the hospital making him criminally negligent when he called a cab instead of 911, and thereby causing the death of his girlfriend? No. Appeal allowed; Browne acquitted. Before someone is convicted of recklessly breaching a legal duty generated by his or her undertaking, that undertaking must have been clearly made, and with binding intent. Nothing short of this can give rise to a legal duty as per s. 217 of the Code. Trial judge erred when she started by determining whether there was a duty of care. She should have started her analysis by determining whether there was an undertaking. People v. Beardsley [1907] 113 N.W. 1128 (Michigan S.C.) Beardsley rented out rooms in his house. One day he drank heavily with a woman. This woman chose to ingest morphine as well. She fell into a state of stupor but Beardsley was too drunk to care for her so he asked the man renting out his basement to look after her. After a while, the man in the basement became alarmed at the woman’s condition so he called a city marshal and a doctor. The woman was dead. Beardsley was convicted of manslaughter. Was Beardsley legally responsible for the death of the woman by failing to exercise a duty to care for her and take steps for her protection? No. Conviction set aside. The neglected duty must be a legal duty (imposed by law or by contract) and not merely a moral obligation, and the omission to FACTS ISSUE HELD RATIO NOTES FACTS ISSUE HELD RATIO 15 perform it must be the immediate and direct cause of death. NOTES Legal relations of protector include husband to wife, parent to child, master to seaman, etc. Beardsley had assumed no care or control over the woman. Causation Smithers v. R. [1978] 1 S.C.R. 506 Smithers is a black hockey player who, during an intense game, was subjected to racial insults by the deceased hockey player and the rest of the opposing team. Both Smithers and the deceased were ejected from the game after an abusive exchange of profanities. Smithers kept threatening that he was going to “get” the deceased. In the parking lot, Smithers caught up to the deceased and gave him a couple punches to the head and, as the deceased doubled up, a sucker kick to the stomach area. The deceased was DOA at the hospital. An autopsy revealed that the victim died from inhaling foreign materials in his vomit, which is a rare and unusual cause of death in the case of a healthy adolescent. Did Smithers commit homicide (by any direct or indirect means) by causing the death of the teen? Was this death culpable because it was caused by an unlawful act? Yes. Appeal dismissed; manslaughter conviction confirmed. The evidence showed that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. ―Thin skull‖ rule may also apply in criminal matters as it does in civil matters. R. v. F. (D.L.) [1989] 73 C.R. (3d) 391 (Alta. C.A.) D.L.F. was a youth who drove dangerously while intoxicated and hit a pedestrian, who suffered bodily harm. The pedestrian was jaywalking and D.L.F. didn’t see him. The trial judge acquitted D.L.F. on account that his hitting the pedestrian was due to inattention and not dangerous driving. Did D.L.F.’s dangerous driving cause bodily harm to the pedestrian? Yes. Appeal allowed; conviction entered. The trial judge had concluded that there was indeed dangerous driving and that while the pedestrian was jaywalking, D.L.F. should have seen him but did not. FACTS ISSUE HELD RATIO FACTS ISSUE HELD RATIO 16 NOTES The “outside de minimis” rule isn’t even an issue here. The trial judge simply erred in not making the connection between the dangerous driving (a fact he had established) and the bodily harm caused to the pedestrian. FACTS ISSUE HELD RATIO R. v. Harbottle [1993] 3 S.C.R. 306 Harbottle and a friend forcibly confined a young woman and Harbottle watched as his friend brutally sexually assaulted her. The two men then discussed ways of killing her. Harbottle held the victim’s legs down as his friend strangled her in order to prevent her from struggling. Harbottle was convicted of first degree murder pursuant to s. 231(5) of the Code. Was Harbottle’s participation such that he could be found guilty of first degree murder? Yes. Appeal dismissed. The actions of the accused formed an essential, substantial and integral part of the killing of the victim. Is this case really about causation? First degree murder requires a substantial and high degree of blameworthiness. This is a higher standard than in Smithers where the charge was manslaughter. This case is really about the degree of participation necessary to bring Harbottle within the scope of liability. R. v. Cribbin [1994] 28 C.R. (4th) 137 (Ont. C.A.) Cribbin punched and kicked his victim first before his companion attacked the victim more viciously. They abandoned the victim, whose injuries were not life threatening, but he drowned in his own blood. Cribbin was convicted of manslaughter. Did the Crown have to show that Cribbin substantially contributed to the victim’s death? Are the tests in Smithers unconstitutional? No. Accused’s appeal dismissed. Creighton adds the fault element to the de minimis test in unlawful act manslaughter and this removes the risk of punishing the morally innocent. ―…if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim‘s death, outside the de minimis range, then the person is guilty of manslaughter.‖ p. 333 – Arbour J.A. NOTES FACTS ISSUE HELD RATIO 17 Fault Notions of fault R. v. City of Sault Ste. Marie [1978] 2 S.C.R. 1299 This is about strict liability offences that are applied using the tools of criminal liability. The City was charged with polluting nearby rivers. Is the City also guilty for the pollution caused by the company it hired to dispose of its waste? New trial ordered. Appeal dismissed. The test is a factual one, based on an assessment of the defendant‘s position with respect to the activity which causes pollution. If it can and should control the activity at the point where the pollution occurs, then it is responsible for the pollution. Sault Ste. Marie is one of the most important cases ever decided in Canadian criminal law. Ontario penal statute refers to offences enacted by the provinces. Interpretation of the statute gave SCC the opportunity to review criminal and penal statutes. Analysis of fault is important. Deals with environmental protection legislation. The distinction between what are matters for regulatory law and what are matters for criminal law is unclear. This is about the choice involved in interpreting the offences. Absolute liability interpretation. Sault Ste. Marie created a new form of liability: strict liability in which the essence of guilt would be proof of the actus reus, but for one thing, the accused would have a defence based on the concept of fault: due diligence or absence of negligence. So between absolute liability and what is called true crimes there exists strict liability. R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154 Travel agency accused of misleading advertising in violation of what is now s. 60(2) of the Competition Act. The offence carries a fine and possible prison sentence. Is the offence outlined in the Act a criminal or regulatory offence? The offence is regulatory. The provision focuses on the harmful consequences of otherwise lawful conduct and not on moral turpitude (such as dishonesty). FACTS ISSUE HELD RATIO NOTES FACTS ISSUE HELD RATIO 18 FACTS R. v. Chapin [1979] 2 S.C.R. 121 Mrs. Chapin was duck hunting on private property. A conservation officer who heard the shots came by and arrested Mrs. Chapin when he saw that there was grain serving as bait near where Mrs Chapin was shooting. The Migratory Bird Regulations say that persons may not hunt for migratory birds within ¼ mile of a place where bait has been deposited. Mrs Chapin had not deposited the bait and didn’t even know what it was when the conservation officer showed it to her. What is the appropriate standard of liability for this regulatory offence? This is a strict liability offence. Appeal dismissed. On the evidence, it is unreasonable to convict Mrs. Chapin of this strict liability offence. The evidence showed that Mrs. Chapin took the reasonable care which a reasonable person might have expected to take in all the circumstances or, in other words, that she was in no way negligent. The preceding is required to absolve people of guilt in strict liability offences. ISSUE HELD RATIO NOTES Intention and knowledge R. v. Steane [1947] 1 All E.R. 813 (C.C.A.) Steane was a British subject living in Germany when WWII broke out. He was interned and beaten before he was asked by the Nazis to broadcast propaganda for them, swearing that he was in continual fear for his wife and children. He said he never had the slightest intention of assisting the enemy. Regardless, he was convicted of collaboration. Should the charge against Steane of collaborating with the Nazis hold? No. Appeal allowed; conviction quashed. The jury was not reminded of the various threats to which the prisoner swore he had been exposed. The jury may have ignored this evidence when told that a man must be taken to intend the natural consequences of his acts (which is not the case of a man under duress). It's wrong in law to say that the law assumes that the accused acted with the requisite degree of intent. R. v. Hibbert [1995] 2 S.C.R. 973 FACTS ISSUE HELD RATIO NOTES 19 ISSUE HELD This case was a major ruling on duress and Lamer C.J. determined the meaning of “purpose” in s. 21(1)(b): Every one is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it The interpretation that equates purpose with intention (as opposed to desire) best reflects the legislative intent underlying the subsection. R. v. Buzzanga and Durocher [1979] 49 C.C.C. (2d) 369 (Ont. C.A.) The defendants put out a satirical document that appeared to be promoting hatred of French Canadians. They actually intended the document to sway public opinion in favour of building a French-language high school in the area. They were charged and convicted with wilfully FACTS promoting hatred. The trial judge treated the defendants’ testimony that they wished to create a “controversy, furor, and uproar” as a virtual admission that they had the state of mind requisite for guilt. ISSUE HELD RATIO Did the trial judge err in his decision? Yes. Appeal allowed; new trial ordered. An intention to create ―controversy, furor and uproar‖ is not the same thing as an intention to promote hatred and it was an error to equate them. R. v. Chapin [1979] 2 S.C.R. 121 (Please ignore this) R. v. Docherty [1989] 72 C.R. (3d) 1 (S.C.C.) Docherty was caught sitting in a car drunk and he pleaded guilty to a charge of having care and control of a motor vehicle with excessive alcohol in his blood. This constituted Docherty’s failure to comply with the terms of a previous probation order to keep the peace and be of good behaviour. He did not think he was doing anything wrong and he thought the car would not start. The trial judge believed him on these points. Can an accused be convicted of a summary offence of breaching a probation order without mens rea? Appeal dismissed. An accused cannot have wilfully breached his probation order through the commission of a criminal offence unless he knew that what he did constituted a criminal offence. Where knowledge is itself a component of the requisite mens rea, the absence of knowledge provides a good defence. FACTS ISSUE HELD RATIO R. v. Théroux [1993] 2 S.C.R. 5 20 FACTS ISSUE HELD RATIO Théroux was the directing mind of a residential construction company that took deposits from co-contractants on the basis that the deposits were insured. They weren’t. The company went bust and the deposit money was lost. Théroux was charged with fraud. What constitutes the mens rea for the offence of fraud? Did Théroux’s belief that the houses would be built negate the mens rea for fraud? No. Appeal dismissed. Théroux had subjective knowledge that others would act on his lie and he thereby put their property at risk. The mens rea of fraud is established by proof of: 1. Subjective knowledge of the prohibited act (deceit, falsehood); and 2. Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk). NOTES Recklessness and wilful blindness Sansregret v. R. [1985] 2 S.C.R. 5 This is a leading decision on the crime of rape. It will be considered later in section on Sexual Assault. It’s included here to highlight MacIntyre’s FACTS unanimous judgement in which he defines and distinguishes recklessness and wilful blindness. Recklessness: We must not confuse recklessness with negligence, the civil concept requiring an objective standard of the reasonable man. Recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is the KEY conduct of one who sees the risk and takes the chance. DOCTRINE Wilful blindness: results from a different mental attitude leading to different legal results. It arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. His fault is in deliberately failing to inquire when he knows there is reason to. R. v. Currie (1975) 24 C.C.C. (2d) 292 (Ont. C.A.) Currie charged with unlawfully and knowingly uttering a forged document (trying to cash a stolen cheque at a CIBC branch). He claims he didn’t know it was a stolen cheque with a forged signature on the back and was only trying to help out the guy who gave it to him to cash, who seemed like an honest guy. The trial judge convicted on the ground that Currie was wilfully blind. FACTS 21 ISSUE HELD RATIO Should the doctrine of wilful blindness apply here? No. Appeal allowed; Currie acquitted. The doctrine of constructive knowledge has no application in criminal law. Wilful blindness is only applicable when a suspicion arises and a person omits to make further inquiries. That is not the case here. Currie was never suspicious. Perhaps Currie “ought to have known” but this does not constitute knowledge for the purpose of criminal liability. R. v. Blondin (1971) 2 C.C.C. (2d) 118 (B.C. C.A.) Blondin was charged with importing cannabis resin into Canada in the tank of a scuba-diving outfit. The cops asked Blondin if he knew what was in the tank. Blondin said he didn’t know what it was but he knew it was illegal. The trial judge instructed the jury that in order to find Blondin guilty, they had to find that he knew the substance in the tank was hashish. Did the trial judge err in his instruction to the jury? Yes. Crown’s appeal allowed; new trial ordered. The trial judge should have informed the jury that they might convict if they found that Blondin had been reckless or wilfully blind to what the substance was and then drew the inference that Blondin suspected that it might be a narcotic. R. v. Sandhu (1989) 50 C.C.C. (3d) 492 (Ont. C.A.) Sandhu was convicted of importing heroin and possessing it for the purpose of trafficking. He possessed about a pound in all in his luggage (sewn into the lining of clothes) and in his wallet. He claimed a woman with whom he was infatuated in India had access to his wallet and packed his bags, etc. Did the trial judge err in his instruction to the jury? Yes. Appeal allowed; new trial ordered. The judge should have also instructed the jury to consider whether or not Sandhu honestly believed (subjective element of recklessness) in what the person who packed his bags did, despite the belief being unreasonable (objective element). The judge, in informing the jury about the doctrine of recklessness, only informed them about its objective element and not the subjective element. NOTES FACTS ISSUES HELD RATIO FACTS ISSUE HELD RATIO NOTES 22 FACTS ISSUE HELD RATIO R. v. Duong (1998) 124 C.C.C. (3d) 392 (Ont. C.A.) The accused let a friend, whom he knew was wanted on two counts of murder, hide out in his apartment. The cops raided the apartment and found the wanted man. They asked Duong what the wanted man had told him and Duong answered that he knew his friend was in “trouble” but didn’t want to know more because he knew he’d be in trouble for helping his friend hide. Duong was charged and convicted of being an accessory to a murder after the fact. Does the accused need to have the means to make an inquiry in order for the doctrine of wilful blindness to apply? No. Appeal dismissed. The trial judge was reasonable in inferring from the appellant‘s statements a state of mind encompassing the suspicion that his friend was in trouble for being a party to murder. The fact that Duong may have contemplated other possible connections between his friend and the murders afforded no bar to finding that he was wilfully blind to his friend’s being a party to a murder. NOTES The approach of English Courts is different. R. v. Parker [1977] 2 All E.R. 37 (C.A.C.D.) Parker went through a series of mishaps by sleeping on a train and missing his stop. In a great temper trying to call a cab, he started FACTS smashing the dialling part of a payphone with the receiver. He was convicted of criminal damage. ISSUE HELD RATIO NOTES Did the trial judge err in his defining “reckless” for the jury? No. Appeal dismissed. Parker was ―reckless‖ in ―closing his mind‖ to the obvious fact that his act can cause damage but nevertheless continuing to perform it. Unlike in Canadian Courts, the English seem to use an exclusively objective test for recklessness and conflating the latter with wilful blindness. R. v. Caldwell [1981] 1 All E.R. 961 (H.L.) Caldwell did work on a hotel but had grievances against the owner. So he got really drunk one night and set fire to the hotel, in which some 10 guests were living at the time. Caldwell pled that he was so drunk that the possibility of there being people in the hotel never crossed his mind. In convicting him of arson, the trial judge said to the jury that in deciding whether Caldwell was reckless as to the lives of the residents, his failing to give any thought to the risk because he was so drunk was irrelevant. The House of Lords agreed with this. FACTS 23 ISSUE What is the meaning of the term reckless? A person is reckless under the Criminal Damage Act 1971 when: 1. he does an act the creates an obvious risk that property will be destroyed and damaged; 2. when committing the act, he has given no thought to there being such as risk or has recognised the risk and committed the act anyway. Once again, English Courts use an exclusively objective test for recklessness and there was a dissent by Lord Edmund-Davies that a jury cannot convict when something has never crossed the mind of the accused. He goes on to say that when a defendant “closes his mind” to a risk, this may prove fatal, again indicating that English Courts conflate the doctrines of recklessness and wilful blindness. ANSWER NOTES Negligence R. v. Tutton and Tutton [1989] 1 S.C.R. 1392 Religious couple thinking God could cure the ailments of their 5-year-old son failed to administer the insulin they were told he needed. They were charged with manslaughter for causing the death of their son by criminal negligence. The S.C.C. unanimously confirmed the Ont. C.A. order of a new trial but split 3-3 (inconclusively) on the test for criminal negligence. What is the test for criminal negligence? McIntyre, L‘Heureux-Dubé and Lamer: We must employ the objective test where criminal negligence is considered because it is the conduct of the accused, not his intention or mental state, which we examine in this inquiry. If we don‘t, the distinction between a traditional mens rea offence and one of criminal negligence will become blurred. (E.g. difference between murder and manslaughter) ANSWER Wilson, Dickson and LaForest: The test should consist of seeing if there was a breach of an objective standard and whether the Crown proved that the accused had any degree of guilty knowledge. Section 202 of the Criminal Code is notoriously ambiguous and the S.C.C. should be most reluctant to interpret a serious criminal offence as an absolute liability offence without clear statutory language. Waite v. R. [1989] 1 S.C.R. 1436 The accused had been drinking and killed four people and injured a fifth taking part in a hayride (riding on bales of hay in a tractor-towed wagon on a public road). The accused passed the hayride, turned and sped FACTS ISSUE FACTS 24 towards it on the wrong side of the road with headlights turned off. The jury acquitted after having been informed to look at the subjective element of the accused. The Crown appealed. The Ont. C.A. allowed the appeal and ordered a new trial. The accused then appealed from the C.A. This was heard together with Tutton but this appeal of the accused was dismissed. The McIntyre wing repeated its justification for an objective test in dismissing the appeal. ISSUE HELD Why did the subjective wing of the S.C.C. also dismiss the appeal? Appeal dismissed. Wilson J. — The mental (subjective) element in criminal negligence is the minimal intent of awareness of the prohibited risk or wilful blindness to the risk. The trial judge erred in telling the jury that the subjective element was a ―deliberate assumption of the risk.‖ R. v. Anderson (1990) 75 C.R. (3d) 50 (S.C.C.) The accused, distracted, ran a red light and the passenger of the car he hit died as a result of injuries. He was charged with criminal negligence causing death and was acquitted at trial. The trial judge said that neither mens rea nor the consequences of the manner of driving were material to his deciding as to guilt or innocence. The C.A. allowed the Crown’s appeal so the accused appealed again. Did the trial judge’s comments relating to the relevance of consequences and intention affect the outcome? No. Appeal allowed; acquittal restored. On the facts, the trial judge was entitled to come to the conclusion that there was a reasonable doubt the conduct of the accused constituted criminal negligence. In context, the trial judge’s comment about mens rea being immaterial is a reference to the fact that the Crown did not have to prove intention in this case. The consequences comment referred to the fact that the Crown had not shown (either objectively or subjectively) that based on the circumstances, there was a wanton disregard for the lives and safety of other persons. RATIO FACTS ISSUE HELD RATIO NOTES Marked Departure Test R. v. Creighton [1993] 3 S.C.R. 3 This is an important case. The accused injected cocaine into the body of the deceased. The Crown argued that the accused was guilty of manslaughter as the death was the direct result of that unlawful act. The accused was convicted at trial and the C.A. upheld this. The common law’s definition of unlawful act manslaughter required the objective foreseeability of the risk of bodily harm which is neither trivial nor 25 FACTS transitory. The foreseeability of death is not required. The S.C.C. confirmed that the common-law rule does not violate s. 7 of the Charter. ISSUE What is the meaning of negligence in the criminal law? For negligence to qualify in criminal matters, it must constitute a ―marked departure‖ from the standard of the reasonable person. Personalizing the objective test to the point where it devolves to a PRINCIPLE subjective test would erode the minimum standard of care which Parliament has laid down by enactment of offences of manslaughter and penal negligence. Incapacity to appreciate the risk which an activity entails is the only exception. The Court was divided 5:4 over whether personal factors should be factored into the objective test. I’m glad those who wished to limit NOTES personal factors won because the minority’s proposals are existentially impossible to fulfil. Constructive liability R. v. Desousa [1992] 2 S.C.R. 944 The accused was involved in a fight and he allegedly threw the bottle which broke against a wall and injured a bystander on the arm. He was charged with unlawfully causing bodily harm. The judge quashed the indictment because the section included offences of absolute liability and allowed the possibility of imprisonment, and therefore contravened s. 7 of the Charter. C.A. overturned acquittal and accused appealed. Does the impugned section violate s. 7 of the Charter? No. Appeal dismissed. The S.C.C. proposes that we read down the impugned section so that it excludes all offences based on absolute liability and which have constitutionally insufficient mental elements of their own. They also read into the term ―unlawfully‖ the requirement that an act be at least objectively dangerous. Interpreted this way, the impugned section complies with the Charter. FACTS ISSUE HELD RATIO R. v. Creighton [1994] (revisited) 3 S.C.R. 3 Does the objective test for unlawful act manslaughter require reasonable ISSUE foresight of death or only reasonable foresight of bodily harm? Death is a serious consequence and therefore the mens rea that the common law has adopted—foreseeability of harm—is entirely PRINCIPLE appropriate to the stigma associated with the offence of manslaughter. 26 The thin-skull rule is a useful principle in helping us recognize that the risk of bodily harm is not appreciably different from the risk of death because the wrong-doer must take his victim as he finds him. There is no authority for the proposition that the mens rea of an offence must always attach to the precise consequence which is prohibited as a matter of constitutional necessity. FACTS R. v. Krushel (2000) 31 C.R. (5th) 295 (Ont. C.A.) Appellants were convicted of criminal harassment under s. 264(2)(c). Council for Krushel argued that s. 264 violated s. 7 of the Charter because 1it is impermissibly vague in that it fails to give sufficient notice of what conduct is prohibited; and 2it fails to require that the accused have the intention to cause the victim to fear for their safety (the “constructive liability argument”). Does s. 264 of the CC violate s. 7 of the Charter? No. Appeal dismissed. Following the principle in Desousa, given that s. 264 contains a sufficiently blameworthy element in the actus reus to which the culpable mental state attaches, foresight of causing actual fear is not required to hold the accused responsible. Section 264 is not too vague because it permits the framing of a meaningful legal debate with respect to its objectives. R. v. Barron (1984) 39 C.R. (3d) 379 (Ont. H.C.) Barron, a teenager, threw a party at his grandmother’s house while the latter was away. Other teens came and they brought beer and consumed it. Barron and the deceased, a teen, were upstairs and decided to go downstairs and “streak” the girls at the party. The deceased changed his mind at the top of the stairs and Barron gave him a push to egg him on. The push caused the deceased to lose his balance and tumble to his death. Did the push constitute an unlawful act (i.e. an assault) which caused the boy’s death? If not, was there another unlawful act? If not, was the accused criminally negligent? Accused convicted of manslaughter. The accused was criminally negligent when he failed to give thought to the obvious and serious risk of severe bodily harm to his friend. The Ont. C.A. reversed this. How would this have been decided under Creighton? ISSUE HELD RATIO FACTS ISSUES HELD RATIO NOTES Constitutional aspects of fault 27 Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (1986) 48 C.R. (3d) 289 (S.C.C.) The impugned section of the Act created an absolute liability offence (driving without a licence, etc.), the breach of which would entail a FACTS mandatory prison sentence. Is the impugned section (and all absolute liability offences involving ISSUE imprisonment) consistent with the Charter? HELD No. Absolute liability can’t be justified. Strict liability would do. The Government of B.C. has not demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of B.C. of bad drivers, a reasonable limit in a free and democratic society. Making it a strict liability offence with a defence of due diligence would allow those few who did nothing wrong to remain free. Courts must interpret s. 7 of the Charter as giving them the right to review legislation substantively, not only procedurally. We needn’t worry about the American debate about inexorable judicial revisions of public policy because our Constitution has checks and balances in ss. 1, 33 and 52. Courts must secure persons’ protection under s. 7 while avoiding adjudication on the merits of public policy. A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person. (Absolute liability per se does not offend s. 7 of the Charter. RATIO NOTES R. v. Cancoil Thermal Group Corp. (1986) 52 C.R. (3d) 188 (Ont. C.A.) Owners of a company took the guard off a piece of machinery, ostensibly in violation of an Ontario statute, and an employee cut his fingers down FACTS to the first joint. A violation of the impugned Act entailed a possible prison sentence. Should the impugned section of the act be treated as an absolute liability ISSUE offence? HELD RATIO No. New trial ordered. To avoid a violation of s.7 of the Charter, [the impugned provision] must be treated as creating a strict liability offence. The defence of due diligence was available to the respondents. R. v. Wholesale Travel Group [1991] 3 S.C.R. 154 False advertising case. Only one of many issues concerns us for the purposes of this course… In strict liability offences, should we presume negligence and shift FACTS ISSUE 28 merely an evidentiary burden on the accused? No. To impose such a limited onus is inappropriate and insufficient in the regulatory context. Thus, the question is not whether the accused has exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed. Summary: Regulatory Offences Express fault requirements Crown must prove fault. Absolute Liability Crown must prove act. ANSWER Strict Liability Crown proves act. Accused must prove due diligence. Fault for Crimes: Due diligence defence is the minimum standard of fault for a regulatory offence threatening the liberty interest. What is sufficient for Criminal Code offences? Simpson v. R. (1981) 20 C.R. (3d) 36 (Ont. C.A.) FACTS ISSUES HELD Accused charged with attempted murder. Can we say that an accused “ought to have known” that harm is likely to cause death? What is the minimum standard of fault for murder or attempted murder? No. Minimum standard is subjective knowledge. New trial ordered. To substitute for that state of mind (subjective knowledge) an intention to cause bodily harm that the accused knows or ought to know is likely to cause death is to impose liability on an objective basis. To do this is to err in law. RATIO Constructive Murder: ss. 229(c) and 230 Vaillancourt v. R. [1987] 2 S.C.R. 636 The appellant robbed a pool hall with an accomplice. The accomplice used a gun despite the appellant’s objections and after having tricked the reluctant appellant into thinking that the gun was unloaded. During the robbery, the accomplice struggled with a client and shot and killed him. He then ran off and was never found. The cops arrested the appellant at FACTS the scene. The appellant challenged the constitutionality of s. 230(d) of the Criminal Code (now repealed), which imposed liability whether or not the person means to cause death and whether or not he knows that death is likely to be caused to any human being (i.e. felony/constructive murder). ISSUE Does felony murder under 230(d) violate the Charter? 29 HELD TEST Yes and s. 1 does not save it. Ask yourself: Would it be possible for a conviction for murder to occur under 230(d) despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? The answer is ―Yes‖ and this violates the Charter. The Court refused to answer whether an “objective foresight” standard is per se constitutional or whether it is a principle of fundamental justice that any culpable homicide should have subjective mens rea as a minimum standard of fault. R. v. Martineau [1990] 2 S.C.R. 633 The accused and a companion robbed a trailer. After the robbery, the companion killed the occupants of the trailer contrary to what the accused had intended. Do felony murder and the objective foresight standard violate the Charter? Yes. Crown’s appeal dismissed; new trial ordered. Lamer C.J.C. – Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained. Dissenting voices: L’Heureux-Dubé J.: objective foreseeability is an ok standard and we should be mindful of policy considerations. Sopinka J. (concurred in the result): Mr. Chief Justice Lamer went too far in his sweeping statements about broad principles and should have restricted his comments to the facts of the instant case. NOTES FACTS ISSUE HELD TEST NOTES Sexual assault Pappajohn v. R. [1980] 2 S.C.R. 120 The case involved a man and a real estate agent who had lunch and alcohol and then went to his house, where he said they had consensual relations, and she says that she was raped. Is mistaken belief (mistake of fact) a valid defence? Yes. Appeal dismissed. If the appellant entertained an honest though mistaken belief that the complainant was consenting to the acts of intercourse as they occurred, the necessary mens rea would not be present and the appellant would be entitled to an acquittal. An accused person who seeks to rely upon a defence of mistake of fact must, in order to FACTS ISSUE HELD RATIO 30 succeed, establish that his mistake was reasonable as well as honest. NOTES Dickson J. dissented on evidentiary issues related to this case specifically. Nonetheless, McIntyre J., for the majority, endorsed Dickson’s outline of when mistake of fact is available as a defence (p. 627). FACTS Sansregret v. R. [1985] 1 S.C.R. 570 Sansregret went to his ex-girlfriend’s house in the middle of the night brandishing a knife. In order to diffuse the tense situation, his frightened girlfriend would consent to have sex with him. The trial judge found that the appellant honestly believed that the complainant was giving a free and genuine consent to intercourse. She found that the complainant, who knew the appellant, also believed in the honesty of his belief. Was the mistake of fact defence available to the accused? No. Appeal dismissed. Sansregret‘s belief in his ex-girlfriend‘s consent was not reasonably held because was wilfully blind to the risk that his ex-girlfriend‘s consent might not be valid because she was afraid. The mens rea for rape under s.1343(a) of the Code must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not, and, for s.143(b)(i), knowledge that the consent was given because of threats or fear of bodily harm, or recklessness as to its nature. Wilful blindness and recklessness are distinct in that while recklessness involves knowledge of a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he doesn’t want to know the truth. An accused can still hold an unreasonable belief and have the defence of mistake of fact available to him… however, he must not be wilfully blind in holding that belief. R. v. Chase [1987] 2 S.C.R. 293 Man came into neighbour’s house, fondled her breasts etc… and tried to get her to sleep with him. When she fought back, he said that he was going to tell everybody that she raped him. He was convicted for sexual assault and the C.A. changed the conviction to common assault. What does sexual assault entail? Crown’s appeal allowed. Original sexual assault conviction restored. ISSUE HELD RATIO NOTES FACTS ISSUE HELD 31 RATIO The test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: ―Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?‖ R. v. Darrach [2000] 2 S.C.R. 443 The accused wanted to bring evidence of the victim’s past sexual behaviour. There are provisions in the Code (“rape shield” provisions at s. 276) stating that that is not allowed. Accused challenged the constitutionality of that provision, saying it prevented him from mounting a full defence. Do the impugned provisions violate principles of fundamental justice? No. Appeal dismissed. The procedure does not violate the accused‘s right to make full answer and defence. It does not violate the accused‘s s.7 Charter right to a fair trial nor his s.11(c) right not to testify against himself or his s.11(d) right to a fair hearing. From Mills: the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. Section 276 is not a blanket exclusion, it only prohibits use of evidence of past sexual activity when offered to support either that a complainant is more likely to have consented or that she is less worthy of belief by reason of the sexual nature of the activity she once engaged in. o This is in order to protect against sexist beliefs about women that could potentially distort the trial process Because s.276 only excludes material that is not relevant, it cannot infringe the accused’s right to make full answer and defence. S.276(2) – judge must weigh the probative value of the evidence against its prejudicial effect to determine its admissibility – use of word “significant” outweighed by use of word “substantial” so OK. R. v. Ewanchuk [1999] 1 S.C.R. 330 The accused made sexual advances on a girl, and she was saying no the whole time. When she said no, the guy would stop, and would start again later. Afraid, her subsequent refusals were not as vehement. The trial judge held that the complainant’s failure to communicate her fear rendered her subjective feelings irrelevant, and acquitted the accused. He FACTS ISSUE HELD RATIO NOTES FACTS 32 characterized the accused’s defence as one of “implied consent.” ISSUE HELD RATIO Is implied consent an available defence in Canadian sexual assault cases? No. Crown’s appeal allowed; conviction substituted. The doctrine of implied consent has been recognized in our common law in a variety of contexts, but sexual assault is not one of them. The complainant either consented or not. There is no third option. Meaning of consent in the context of an honest but mistaken belief in consent The question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said yes through her words and/or actions. Different from consent in actus reus. Limits on honest but mistaken belief in consent Once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies L’Heureux-Dubé J.: Unless and until an accused first takes reasonable steps to assure that there is consent, the defence of honest but mistaken belief does not arise. NOTES Extensions of guilt Participation R. v. Kulbacki [1966] 1 C.C.C. 167 (Man. C.A.) Appellant was convicted of dangerous driving. He allowed a 16-year-old girl to drive his vehicle dangerously without doing anything to stop her. He was in the passenger seat at the time and was charged with the substantive offence. The Crown argued that the accused had aided and abetted the girl. The defence was one of law, stating that he had no duty to do anything and under no liability as long as he did not encourage the commission of the offence. Is the appellant liable? Yes. Appeal dismissed; conviction affirmed. The failure to even protest is equivalent to encouragement and is fatal to the appellant‘s defence. Not every passenger in an unlawfully driven motor vehicle is necessarily subject to conviction as an aider and abetter. Some FACTS ISSUE HELD RATIO NOTES 33 passengers may not have the same authority over the car or any right to control the driver. In this situation, the passenger did have the authority. Dunlop and Sylvester v. R. [1979] 2 S.C.R. 881 Gang rape of a 16-year-old girl at the hands of 18 members of a motorcycle gang. The accused were members of the gang but the evidence shows they had gone to get beer and were sitting nearby when the rape was going on, which they thought was consensual sex with one member as the others stood around. Was there enough evidence to permit the jury to draw an inference that the accused were more than merely present at a crime and had done nothing to prevent it? Will a man’s presence at the scene of a crime without trying to prevent it suffice to render him liable as an aider and abetter? No and no. Appeals allowed; acquittals entered. A person cannot properly be convicted pf aiding or abetting in the commission of acts which he does not know may be or are intended. If there is no evidence of encouragement by him, a man‘s presence at the scene of a crime will not suffice to render him liable as an aider and abetter. The evidence in this case only went to presence and not complicity. FACTS ISSUE HELD RATIO NOTES R. v. F.W. Woolworth Co. (1974) 18 C.C.C. (2d) 23 (Ont. C.A.) A man named Healy entered into an agreement with Woolworth for some floor space and use of the cash registers in one its stores in order to sell FACTS some ballpoint pens. Healy made misleading representations regarding the price of these pens and Woolworth was held to account. ISSUE HELD Can Woolworth be convicted for aiding and abetting? No. Appeal allowed; conviction quashed. There is no evidence that Woolworth had knowledge of the facts which constituted the offence. Even if someone incidentally and innocently aids another in the commission of an offence, that‘s not enough to involve the alleged party whose purpose was not that of perpetrating the offence. RATIO Gamble and Nichols v. R. (1978) 40 C.C.C. (2d) 415 (Alta. C.A.) The appellants convicted of first degree murder for killing a policeman. The appellants and others committed a bank robbery and a series of FACTS carjacking and hostage taking incidents. ISSUE Was there evidence to show Gamble’s common intent with Nichols? 34 HELD RATIO Yes. Appeals dismissed. There was powerful evidence (her presence, driving the getaway car, etc.) which a jury might well have found to have been done by Mrs. Gamble for the purpose of aiding Nichols to commit the robbery. Have a look at p. 1064 to see how the appeal court justice would have instructed the jury though he didn’t feel there was a miscarriage of justice just because the trial judge didn’t do it the same way. R. v. Logan [1990] 2 S.C.R. 731 The accused were involved in a robbery where someone was shot and severely injured. Neither accused had done the shooting and claimed they knew nothing about the plans to use guns but Logan had boasted about planning the robberies. The trial judge said the jury could convict if the Crown proved beyond a reasonable doubt that the accused knew or ought to have known that someone would should with the intention of killing. They were convicted of attempted murder. The C.A. overturned this. The Crown appealed. Is it a principle of fundamental justice that a party to any offence cannot be found guilty of the offence based on a lower standard of requisite mens rea than that required for convicting the principal? (In short, is "ought to have known" in s. 21(2) too low a standard of mens rea?)? Yes. Crown's appeal dismissed. Section 21(2) doesn't violate the Charter for most offences. However, attempted murder is one of the few offences for which the Constitution requires subjective intent and therefore the objective component "ought to have known" contravenes ss. 7 and 11(d) of the Charter without being saved by s. 1. NOTES FACTS ISSUE HELD RATIO Canadian Dredge and Dock [1985] 1 S.C.R. 662 Corporation convicted of conspiracy to defraud. This is the leading decision on the "identification doctrine" under which Canadian Courts impute fault, including mens rea, to corporations. The S.C.C. confirmed FACTS the convictions and took the opportunity to assert and justify the identification doctrine. Criminal conduct, including the state of mind, of employees and agents of the corporation is attributed to the corporation so as to I.D. render the latter criminally liable so long as the employee or agent in DOCTRINE question is of such a position in the corporation that he/she represents its de facto directing mind so that the corporation is identified with the act of that individual. There need not be formal delegation for the identification doctrine to apply but the corporation is not liable where the directing mind acted in NOTES fraud of the corporation or where the act was intended to, or did result in, benefit exclusively to the directing mind. 35 Inchoate offences R. v. Ancio [1984] 1 S.C.R. 225 Ancio's wife had left him and was living with one Kurely. Ancio called his wife on false pretences wanting to meet with her but she refused. Ancio then broke into a friend's house and stole three shotguns, sawing off the barrel of one, loading it, and taking it along with some extra ammo to Kurely's apartment building. Ancio broke the glass of the front door to enter the building. Kurely, upstairs, saw Ancio coming and threw a chair at him. The gun went off missing Kurely then they wrestled around until the cops arrived. What is the mental element required for proof of the crime of attempted murder? Crown's appeal dismissed; C.A.'s order for a new trial confirmed. Mens rea for attempted murder cannot be anything less than the specific intent to kill. Section 24 defines an attempt as "having an intent to commit an offence." This is a general provision so we must "read in" the offence in question. FACTS ISSUE HELD RATIO NOTES R. v. Sorrell and Bondett (1978) 41 C.C.C. (2d) 9 (Ont. C.A.) Two bozos set out to rob a fried chicken restaurant, going so far as to procure guns and ski masks. The restaurant closed 15 minutes early that night so when the would-be crooks showed up, the door was locked. FACTS They knocked on the door but the manager didn't let them in so they took off. Police picked them up a short while later. Did going to the restaurant and knocking on the door constitute an act of ISSUE attempted robbery by going beyond mere preparation? HELD No. Crown's appeal dismissed. Equivocal acts of the accused, where there is no extrinsic evidence of the intent with which the said acts were done, may be insufficient to show that there was the intent to commit a crime, and hence insufficient to establish the offence of attempt. R. v. Deutsch [1986] 2 S.C.R. 2 The appellant put out an ad looking for a secretary/sales assistant. The position entailed possibly having sex with clients to close deals. One interview was with a cop posing as an applicant. When the cop said she was interested, the appellant told her to think it over and let him know. He was charged with attempting to procure a person to have illicit sexual RATIO FACTS 36 intercourse with another person. ISSUE HELD RATIO How do we distinguish between attempt and mere preparation? Appeal dismissed. C.A.'s order for a new trial confirmed. The trial judge did not make a finding as to whether or not there was the necessary intent to procure. Le Dain J. - "...the distinction between preparation and intent...involv[es] the relationship between the nature and quality of the act in question and the nature of the complete offence, although... [we must consider] the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished." United States v. Dynar [1997] 2 S.C.R. 462 The U.S. government wanted D., a Cdn citizen, extradited. D. had placed a phone call from Canada to a former associate in Neveda who had become an FBI informant. Should courts acquit in some cases of attempting the impossible? No. Dynar to be extradited. Section 24 is clear; it is indifferent about whether or not the attempt might possibly have succeeded. The conventional distinction between factual and legal impossibility is untenable. There is no legally relevant difference between the pickpocket who reaches into an empty pocket and the man who takes his own umbrella from a stand believing it to be some other person's umbrella. Both have the mens rea of a thief. NOTES FACTS ISSUE HELD RATIO NOTES R. v. Celebrity Enterprises Ltd. (No. 2) [1977] 42 C.C.C. (2d) 478 (B.C. C.A.) The accused were acquitted on a count of conspiracy to produce a public mischief. This was on account that conspiracy to produce public mischief with intent to corrupt public morals is not an offence under the FACTS Criminal Code, although it is an indictable offence by the common law of England. ISSUE HELD RATIO NOTES Can the accused be convicted? No. Appeal dismissed. If something that someone does is not something of which he can be convicted, that something cannot be ―unlawful‖ in the sense which the word is used in s. 423(2)(a). Section 8 of the Criminal Code reads in part: Notwithstanding anything in this Act or any other Act no person shall be convicted (a) of an offence 37 at common law… R. v. Gralewicz [1980] 2 S.C.R. 493 The appellants charged with conspiracy to effect an unlawful purpose, to wit: to prevent members of the Seafarers’ International Union of Canada from participating in the lawful activities of their Union, in accordance with s. 110(1) of the Canada Labour Code. Appellants’ counsel argued that s. 110(1) is only declaratory and contains no requirement or prohibition. What is the meaning of unlawful purpose? Appeal allowed. The purpose of getting people to not participate in union activities is fine but only if people use persuasion as a means, not intimidation. However, we‘re not concerned with the means here and the section under which the appellants were charged does not lay out an offence known to the law of Canada. R. v. Dungey (1979) 51 C.C.C. (2d) 86 (Ont. C.A.) Lawyer asked client to seek legal aid and have the request back-dated to the time the client had already paid the lawyer a retainer fee so that the lawyer would get both the legal aid and the retainer fee without telling the Law Society of Upper Canada about it. Trial judge doubted that the client ever intended to do as the lawyer requested so and he therefore ruled that the Crown had failed to prove the necessary agreement to found the charge. The Crown’s appeal factum urged the Court to consider that there was an attempt to conspire to defraud the Law Society. Counsel for the lawyer argued that no such offence exists. Can we convict the lawyer of attempt to conspire to defraud the Law Society of Upper Canada? No. Appeal dismissed; trial decision upheld. There is no such offence as attempt to conspire to commit a further substantive offence. “In the instant case the solicitor’s act was complete and uninterrupted. In the absence of an agreement, there was no offence, and a conviction for an attempt to conspire to defraud would be punishment for a guilty intention alone.” “Incitement” is an offence that could have been invoked to meet the circumstances of this case but the appeal judge thought it inappropriate to consider here. FACTS ISSUE HELD RATIO FACTS ISSUE HELD RATIO NOTES 38 ASPECTS OF INNOCENCE Automatism R. v. Stone [1999] 2 S.C.R. 290 On his way to visiting his sons from a previous marriage, the accused rode with his current way who was expressing her objections to the visit. She also said that she was going to divorce him, that she had falsely reported to the police that he was abusing her, and, among other things, that he had a small penis and was a lousy fuck. The guy snapped. He came to seeing her dead, slumped over the car seat, having been stabbed 47 times. He put her body in a box, took care of some errands, and flew to Mexico. He dreamt about the incident and flew back to Canada to turn himself in. The 5-4 S.C.C. decision dismissed the Crown Appeal against the sentence (which was light) but the division in the Court came on whether sane automatism should have been left to jury, with the majority holding that the judge had been correct in not putting the defence to the jury. The majority also decided to reverse the onus of proof. How do we distinguish between sane automatism and insanity (covered by s. 16)? How can an accused demonstrate that mere words caused him to enter an automatistic state such that his actions were involuntary and thus do not attract criminal law sanction? In Parks, LaForest classified automatism as a sub-set of voluntariness, part of the actus reus component of criminal liability. We can add that voluntariness, and not consciousness, is the key element of automatistic behaviour since the defence of automatism amounts to a denial of the voluntariness component of the actus reus. The law presumes that people act voluntarily. The legal burden then in cases involving claims of automatism must be on the defence to prove involuntariness on the balance of probabilities to the trier of fact. This burden is justified under s. 1 of the Charter. The defence must call expert psychiatric or psychological evidence confirming the assertion but they‘re not done yet. The trial judge can examine all other evidence from the severity of the triggering stimulus to whether there is a motive for the crime. The legal test for what legally constitutes a disease of the mind involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a question of mixed law and fact. Trial judges should start from the proposition that the FACTS ISSUE ANSWER 39 condition the accused claims to have suffered is a disease of the mind. Then they must determine whether the evidence takes the condition out of that category (Rabey approach). Intoxication S.M. Beck and G.E. Parker, The Intoxicated Offender—A Problem of Responsibility (1966), 44 Can. Bar Rec. 563 at 570-573. We don’t know precisely what happens when someone becomes intoxicated. Medical science has a broad idea of what happens and this might well justify a change in degree of responsibility attributed to the intoxicated offender. Intoxication impairs perception, judgment and muscular coordination while increasing self-confidence, lessening inhibitions, and releasing aggressive impulses. Intoxicated people might be quite incapable of foreseeing the consequences of their acts. Voluntariness is the issue: acutely intoxicated person may have no more appreciation of acts and their consequences than psychotic person. But society deems the act of becoming intoxicated as irresponsible in itself, so there is a compromise between the criminal law requirement of a voluntary act and the social judgment that a wrongdoer not be exonerated simply because he was drunk. R. v. Bernard [1988] 2 S.C.R. 833 Bernard charged with sexual assault causing bodily harm. Despite having been drinking, Bernard was able to walk and see and speak clearly as well as put albums on the record player. Bernard stated that his drunkenness caused the attack. Bernard was convicted at trial. His appeal was dismissed since Ont. C.A. held that sexual assault causing bodily harm is an offence of general intent, to which drunkenness cannot apply as a defence. Is sexual assault causing bodily harm an offence of general or specific intent? Is self-induced drunkenness relevant to the issue of guilt or innocence in an offence of general intent? Bernard’s appeal dismissed. Reckless behaviour in attaining an acute level of intoxication affords the necessary evidence of the culpable mental condition in an offence of general intent. General/Specific intent distinction: General intent: only intent involved relates solely to the performance of the act with no ulterior intent or purpose. Specific intent: involves performance of the actus reus coupled with intent or purpose going beyond mere performance of the questioned act. E.g. assault with intent to maim. Sexual assault is a crime of violence with no requirement of an FACTS ISSUES HELD RATIO NOTES 40 intent or purpose beyond the intentional application of force (Leary v. The Queen [1978]). Wilson J.: (She agreed to dismiss the appeal but…) “I am less confident about the proposition accepted by my colleague that self-induced intoxication may substitute for the mental element required [when the offence occurred].” Wilson J. held that in this case the accused wasn‘t drunk enough but in other cases, extreme intoxication can be put forth as a defence for offences of general intent. Dickson J.: dissenting because he feels the issue is not a “defence of drunkenness” but rather “whether the Crown should be relieved of [proving mens rea for the offence] because the accused was intoxicated.” FACTS ISSUES HELD R. v. Daviault [1994] 3 S.C.R. 63 Daviault, aged 69 and a chronic alcoholic, was charged with sexually assaulting a wheelchair-bound woman, aged 65, in her home after drinking 7 bottles of beer and the better part of a bottle of brandy. That amount of alcohol would kill or render comatose the average person. The trial judge acquitted on account of his reasonable doubt that Daviault had the necessary minimal intent by virtue of his extreme intoxication to the point of automatism as per Wilson J. in Bernard. Qc C.A. convicted. Can extreme intoxication closely resembling a disease of the mind/automatism constitute a defence to the offence of general intent? Yes. Daviault’s appeal allowed; new trial ordered. Complying with the Charter means that an accused can try to establish as a defence that, at the time of the offence of general intent, he was in a state of extreme intoxication akin to automatism or insanity. Leary Rule violates s. 7 of the Charter: An accused under this rule still can’t be acquitted even if there is a reasonable doubt as to his capacity to form the minimal mental element required for a general intent offence. Now, the burden of proof is on the accused to establish that he was in a state of extreme intoxication akin to insanity. Being intoxicated to such a degree is rare. RATIO NOTES Bill C-72 was enacted in 1995 by then Justice Minister Allan Rock to counter the decision in Daviault. It removes the defence of self-induced intoxication to most general intent offences, most of which involve at least threats to bodily integrity. It does not, however, affect the common law defence of drunkenness regarding specific intent crimes like murder and robbery. 41 FACTS ISSUE TEST R. v. Robinson [1996] 1 S.C.R. 683 Accused charged with second degree murder. He struck the victim with a rock after the victim said something to him. He then fatally stabbed him. Robinson was convicted at trial. B.C. C.A. overturned this on the basis of misdirection as to the defence of intoxication. Supreme Court of Canada dismissed the Crown’s appeal from the B.C. C.A. How should a jury be instructed on the relationship between intoxication and defence? Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused‘s foresight of consequences sufficiently to raise a reasonable doubt. Once satisfied of this, the judge must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of murder, the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death. Mistake of fact Following Pappajohn v. R., where there is no statutory wording to the contrary: 1. When an offence requires subjective mens rea, the mistake need merely be honest and reasonable relevant to an assessment of the credibility of the accused. 2. Where the fault element requires objective negligence, the mistake must be both honest and reasonable. 3. Where the defence of due diligence is available, the mistake must be both honest and reasonable, with the burden of proof on the accused on regulatory offences. 4. Where the offence is one of absolute liability, mistake of fact is no defence. The fourth situation may raise a constitutional challenge. R. v. Hess; R. v. Nguyen [1990] 2 S.C.R. 906 Hess and Nguyen were charged with having sex with a female person under 14 under then s. 146(1) of the Criminal Code (since repealed). In case of H, the judge quashed the indictment on the ground that s. 146(1) violated s. 15 of the Charter. Ont. C.A. reversed this and ordered a new trial. In case of N, Manitoba trial judge convicted and this was upheld by Man. C.A., finding that although impugned provision violated s. 7 (not 15), it was saved by s. 1. Does s. 146(1) violate s. 7 of the Charter? Can s. 1 save it? FACTS ISSUES 42 HELD RATIO Yes, it violates s. 7 and no, s. 1 can’t save it (It does not violate s. 15). Appeal allowed. By disallowing the defence of mistake of fact, the impugned provision is one of absolute liability and would entail convicting a mentally innocent man. This cannot be justified under s.1 (rational connection, degree of impairment, proportionality between effect of limit and objective). McLachlin J. and Gonthier J. dissented. NOTES FACTS ISSUE HELD R. v. Ladue [1965] 45 C.R. 287 (Y.T.C.A.) Ladue had sex with a corpse contrary to what’s now s.182(b) of the Crimianl Code. He appealed the conviction to find out whether the trial judge was right in denying him the defence that he did not know the woman was dead. There was evidence that Ladue was so intoxicated he did not realize the woman was dead. Can the appellant defend himself as innocent because he was mistaken as to whether the woman was alive or dead? No. Appeal dismissed. An intention to commit a crime (in this case, rape), although not the precise crime charged, will provide the necessary mens rea under a statute in the form of s. 167(b) because the accused cannot contend that he was acting lawfully or innocently. The appellant could not have failed, even in his drunken state, to perceive that the woman was unconscious and incapable of giving her consent to copulation. He didn’t suggest that he had her consent to the act. If the woman was alive, he was raping her. R. v. Kundeus [1976] 2 S.C.R. 272 Kundeus was charged with trafficking in LSD when he sold mescaline to an undercover cop, not knowing that the capsules actually contained LSD and not mescaline. The trial judge convicted of trafficking in LSD on account that the mens rea was there regarding trafficking mescaline. The B.C. C.A. set aside the conviction. Crown appealed to Supreme Court. Had the necessary mens rea been proved despite the fact that Kundeus thought he was selling mescaline and not LSD? Yes. Crown’s appeal allowed; trial judgment and sentence restored. An intention to commit a crime (trafficking mescaline), although not the precise crime charged, will provide the necessary mens rea because the accused cannot contend that he was acting lawfully or innocently. Laskin C.J.C. (Spence J. concurring) offered a lengthy dissent in that if there is any doubt that the accused was offering and intending to sell mescaline, that can’t be translated to a finding RATIO NOTES FACTS ISSUE HELD RATIO NOTES 43 that the accused offered and intended to sell LSD. At worst, it would require a new trial. Duress R. v. Ruzic (April 20, 2001) 2001 SCC 24 Ruzic charged with importing 2kg of heroin. A shady person in Belgrade threatened to harm her mother if she didn’t carry the heroin into Canada on a flight. Ruzic invoked the common-law defence of duress and held that s. 17 of the Criminal Code, which denies her the defence of duress because she did not meet the immediacy and presence requirements, contravenes the Charter. Ruzic was acquitted at trial and the Crown’s appeal was dismissed. Does s. 17 violate the Charter in part? Yes. Crown’s appeal dismissed. Section 17 is too strict because the immediacy and presence requirements preclude the threats of future harm and therefore violate the s. 7 of the Charter because it allows persons who acted involuntarily to be declared criminally liable. The trial judge was right in having the common-law defence of duress go to the jury. FACTS ISSUE HELD RATIO NOTES Self-defence R. v. Lavallée [1990] 1 S.C.R. 852 Accused was a battered woman who killed her common-law partner one night as he left her room. She used a psychiatric assessment to support her defence of self-defence. Lavallée was acquitted at trial but the Man. C.A. ordered a new trial. Is it inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is actually in progress? No. Appeal allowed; acquittal restored. Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a ―reasonable‖ apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner‘s acts. FACTS ISSUE HELD RATIO 44 NOTES In her judgment, Wilson J. analogizes the battered wife syndrome to the “traumatic bond” that occurs between hostages and captors, concentration camp prisoners and guards, etc. (theory of “learned helplessness”) Academics have seriously criticized the view that the Court adopts because it medicalizes the problem and discounts the voice of the particular woman. The detractors have said that Court’s view creates a false dichotomy between a woman who is either reasonable “like a man” or reasonable “like a battered woman.” FACTS R. v. Petel [1994] 1 S.C.R. 3 Petel shot the daughter’s abusive and drug dealing boyfriend and his friend one evening. During the previous months, the boyfriend kept selling drugs out Petel’s home and beating her daughter. On the night in question, the boyfriend came over to the house and forced Petel to hide a gun and weigh some drugs under threats. The daughter then came home with the deceased. Petel took the gun and shot both the boyfriend and the friend. She was convicted of second degree murder. The trial judge instructed the jury that the threat or act giving rise to self defence had to occur that evening. Did the judge err in his answering the jury’s question? Yes. Crown’s appeal dismissed; Affirm Qc C.A. order for a new trial. The previous threats are very relevant in determining what Petel believed concerning her apprehension of the risk of death and her belief in the need to use deadly force. This case was decided 5:4. ISSUE HELD RATIO NOTES FACTS R. v. Malott [1998] 1 S.C.R. 123 Malott shot her very abusive common-law spouse of 20 years and shot and stabbed his girlfriend. She shot her spouse on the way to a clinic to get prescription drugs that he used in the illicit drug trade. She then took a cab to the girlfriend’s house and shot and stabbed her. The spouse died, the girlfriend lived. The trial judge instructed the jury to assess the background abuse on the murder charge to determine if Malott’s actions were reasonable self-defence. Malott was found guilty of second degree murder and attempted murder. Malott appealed complaining that the judge’s charge to the jury was inadequate. Was the judge’s charge to the jury adequate? Yes. Appeal dismissed; convictions affirmed. A judge and jury should be told that a battered woman‘s experiences are generally outside the common understanding of the average ISSUE HELD OBITER 45 NOTES judge and juror, and that they should seek to understand the evidence being presented to them in order to overcome the myths and stereotypes which we all share. L’Heureux-Dubé doesn’t deny that men can be in abusive relationships but that to assume that men deal with it the same way without relying on expert opinion evidence “would be imprudent.” Necessity Perka v. R. [1984] 2 S.C.R. 233 The appellants are drug smugglers. They loaded a ship with 33 tons of marijuana and set sail from Columbia to Alaska. The ship started falling apart and they weather turned ugly near the B.C. coast. They decided to dock on the West Coast of Vancouver Island. Fearing the vessel was going to capsize, the captain ordered the men to offload the cargo. The police entered the bay the next day, arrested and charged the men with importing cannabis into Canada and possession for the purpose of trafficking. The Crown alleged that the evidence of the ship’s distress was a fabrication. The jury believed the accused and acquitted them. How should the courts deal with the defence of necessity? Crown’s Appeal dismissed; retrial order sustained (judge did not properly put the question of a “legal way out” before the jury). The defence of necessity is an excuse, not a justification, i.e., the wrongfulness is not in question. 1The situation must be so emergent and the peril so pressing that normal human instincts cry out for action. 2There must also be no legal way out. 3There must be proportionality between the harm inflicted and the harm avoided. Although we speak of defence of necessity, the Crown always bears the burden of proving a voluntary act. Criminal theory distinguishes between “justifications” and “excuses” Justification: challenges the wrongfulness of an action which technically constitutes a crime. Excuse: concedes wrongfulness of the act but asserts circumstances are such that the act ought not to be attributed to the actor. R. v. Morgentaler, Smoling, and Scott (1985) (Ont. C.A.) Morgentaler et al. were charged with conspired with intent to “procure the miscarriage of female persons.” The jury acquitted. The Crown brought an appeal challenging the appropriateness of necessity as a defence in this case. FACTS ISSUE HELD TEST NOTES FACTS 46 ISSUE HELD Did the judge err in leaving the defence of necessity to the jury? Yes. The defence was not available to the accused. Appeal allowed. The defendants consciously agreed to violate the law out of their dissatisfaction with it. The defence of necessity recognizes that the law must be followed, but there are certain factual situations which arise which may excuse a person for failure to comply with the law. The justification/excuse distinction from Perka is salient here. The defence of necessity was misconceived [by the trial judge]. There was nothing involuntary about the agreement that the accused entered into. Not only did the defendants fail to make every reasonable effort to comply with the law, but they consciously agreed to violate it. This offers no basis for a defence of necessity. R. v. Latimer (2001) 150 C.C.C. (3d) 129 (S.C.C.) Heartwrenching case of man who killed his 12 year old daughter. The daughter was stricken with a debilitating, though not terminal, case of cerebral palsy. The trial judge removed the defence of necessity. The jury convicted Latimer of second degree murder. Sask. C.A. dismissed the appeal. Latimer appealed to the S.C.C. Was the trial judge correct to remove the defence of necessity from the jury? Yes. Appeal dismissed. There was no air of reality to Latimer‘s defence of necessity (with its three requirements outlined in Perka) and therefore the jury should not have been left to consider this defence. The test is a mixed objective/modified objective test falling somewhere between a fully objective and a fully subjective evaluation. The three requirements are: 1. imminent peril (modified objective test) 2. no reasonable legal alternative (modified objective test) 3. proportionality: harm inflicted vs. harm escaped (objective test) RATIO NOTES FACTS ISSUE HELD RATIO NOTES Provocation 232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. (2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. 47 FACTS R. v. Hill [1986] 1 S.C.R. 313 Hill, aged 16, struck Pegg on the head and stabbed him with two knives in Pegg’s apartment. The Crown and defence differ on the circumstances surrounding the event. The Crown claims the two were homosexual lovers and the defence claims that Pegg made aggressive and unwanted sexual advances on Hill. Hill was convicted of 2nd degree murder at trial. He appealed on the ground that the judge should have charged the jury to consider whether Pegg’s alleged act was sufficient to deprive an ordinary person “of the age and sex of the appellant” of his power of self-control. Was it incumbent upon the judge to add “age” and “sex” to the section? No. Crown’s appeal allowed; Conviction restored. The trial judge‘s charge was correct in law. “[I]n applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the ‗ordinary person‘.” Particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test of provocation. The central criterion is the relevance of the particular feature to the provocation in question. R. v. Thibert [1996] 1 S.C.R. 37 Thibert, with a rifle, blew away his wife’s lover. Thibert was trying to persuade his wife to go somewhere and talk but the victim came out of the building and began to lead her back indoors. Thibert got his rifle out of the car but the victim started coming at him saying “come on big fellow, shoot me…” He kept coming towards the accused despite the latter’s warning him to stand back and…POW! The trial judge left the defence of provocation with the jury. Was the trial judge correct in leaving the defence of provocation with the jury? Yes. Appeal allowed; New trial on the charge of second degree murder. Objective element: each case must be considered in the context of its particular facts to see if there is evidence to establish provocation (in this case there was). Subjective element: even if the objective test is met, not everyone is equally provoked. We must determine whether the accused was actually provoked (in this case, the accused was). Major J. (Iacobucci J. concurring) dissenting: nothing the victim did could be seen as provocation. The accused was not entitled to be alone with his estranged wife when the latter wanted nothing to do with him. The judge erred in leaving the defence but this did not prejudice the accused. 48 ISSUE HELD RATIO NOTES FACTS ISSUE HELD TEST NOTES Entrapment R. v. Mack [1988] 2 S.C.R. 903 Mack was convicted of unlawful possession of a narcotic for the purpose of trafficking. He claims that he got into the transaction because of undercover police tactics that involved persistent inducement of fear. Mack was convicted at trial and the B.C. C.A. dismissed his appeal. How should the courts deal with the doctrine of entrapment? Appeal allowed; Conviction set aside, proceedings stayed. Entrapment is not dependant on culpability, so an objective assessment of the conduct of police and their agents is required. The judge, not the jury, is to decide whether objective entrapment involved police misconduct. The accused must demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment. The defence of entrapment must only be recognized in the ―clearest of cases‖ (Dickson C.J. in Jewitt). There is entrapment when: The authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. Police cannot just go out there and test the virtue of people on a random basis. We should ask ourselves in entrapment cases, would the administration of justice be brought into disrepute? FACTS ISSUE HELD TEST NOTES 49
