CRIMINAL LAW MIDTERM SUMMARY

Criminal Law SUMMARY

February 2003

````````````````````````````CRIMINAL LAW MIDTERM SUMMARY

Sarah Huggins

2PART I: THE AIMS AND PURPOSES OF PUNISHMENT

PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS. COMMON LAW CRIMES5CASE: R. V. Sedley5CASE: Commonwealth v. Mochan5CASE: Frey v. Fedoruk5S. 177 Criminal Code Peeping Toms6Procedural Classification of Offences, page 161-1636A - Statutory Interpretation; Rule of Strict Construction of Penal Provisions7Using the Rule of Strict Construction7CASE: R v. Goulis8CASE: R. v. Par8Applying Rule from Par9CASE: R. v. Muchikekwanape10CASE: R v. Mac10PART III: CORNERSTONE PRECEPTS: THE PRESUMPTION OF INNOCENCE AND THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT11CASE: Woolmington v. D.P.P.11Golden Thread Quote12CASE: R v. Osolin13PART IV: THE ACTUS REUS (PHYSICAL) REQUIREMENT FOR CRIMINAL LIABILITY15A - The Unlawful Act Interpretation Principles15[1] Prostitution, etc.16CASE: Hutt v. R.16Notes on the Crime of Prostitution (page 192-196)17Criminal Code: ss. 197, 210-21317Case: R v. DiGuiseppe18[2] The Unlawful Act for the Crime of Assault and Sexual Assault19S. 265 Criminal Code20CASE: R v. Jobidon20CASE: Bolduc and Bird v. R.22CASE: R v. Cuerrier23[3] The Proper Scope of the Criminal Law24Notes on the Proper Scope of the Criminal Law (page 167-173)24[4] The Unlawful Act in Breaking and Entering27Case: Johnson v. R27[5] The Unlawful Act of Causing a Public Disturbance28CASE: R. v. Lohnes28Interpreting a Statute29B Omissions29CASE: Fagan v. Commissioner of Metropolitan Police29CASE: R. v. Miller30CASE: Moore v. R.31C Causation31

PART I: THE AIMS AND PURPOSES OF PUNISHMENT

What does each author see as the function of the criminal law, the function of punishment (which is basically the criminal law in action)? On what basis is the criminal law (i.e. punishment of criminals usually by imprisonment) justified?

Goldstein and Goldstein: criminal law as a last resort process

H.L.A. Hart: aim of the criminal law (i.e. criminal legislation) is denunciation of conduct. This is to be distinguished from justifications for punishment when those laws are violated ( deterrence, retribution, vengeance, reformation. [note that Hart also believes that in favouring a modern, forward-looking, utilitarian justification for punishment over a back-ward looking, moral culpability justification for punishment, society has tended towards the elimination of responsibility]

Sweeny case (drunk driving): aim of punishment is NOT retribution (though court here misunderstands retribution as vengeance). Fundamental purpose of criminal sentencing is to enhance protection of society. In order to accomplish this purpose, punishment must be acceptable to society ( in order to achieve societal acceptance ( (1) fulfillment of the various utilitarian goals, i.e. deterrence, isolation, rehabilitation and denunciation, is critical for societal acceptance ; (2) punishment should be proportionate to gravity of offence (moral culpability).

Stephen: Main aim of the criminal law and punishment is the expression and gratification of societys hatred towards the criminal and his conduct. (i.e. vengeance, revenge).

Morton: Criminal law as a contemporary morality play. The main aim of the criminal law is to demonstrate fundamental values to citizens. Its object is to instill abiding by the rules values in ordinary citizens. Thus the raison detre of the criminal law is the ordinary citizen, not the criminal. Criminal law is only one of the institutions by which values are demonstrated.

H.R.S. Ryan: suggests that one aim of the criminal law should be to give citizens confidence in the legal order (this echoes Sweeny). This suggests that if we didnt balance interests (e.g. allow punishments to reflect the seriousness of the harm and the anger of the community), society would not have confidence in the system and might not abide by it.

Note that there is no general agreement as to the function of the criminal law/the aims and justifications of punishment. Society has not come to any general consensus. Philosophers disagreed. Contemporary analysts disagree. (Talk about this disagreement. Who believes what?) (May also talk about discrepancies in understanding issues e.g. retribution). Will we ever agree? NO. Part of the reason ( no conclusive research as to which of the aims of the system are actually being fulfilled AND so much variation across different kinds of crimes.

Do we want to agree? Maybe not. Maybe the interests of society and the criminal are best served if we seek to balance the various justifications and aims. Perhaps general societal acceptance of the system will be greatest if each person sees his/her values included as part of the balancing act. NO JUSTIFICATION IS APPROPRIATE ON ITS OWN. For example, Lewis points out that if deterrence were the only justification, we could justify punishing an innocent man so long as society thought he was guilty. In CAM case, court speaks to importance of BALANCE sees retribution as a restraint on the utilitarian justifications. And it is evident that if we did not meet societys demand to see punishment accord somewhat with the harm done, society might not accept the criminal law system at all. (e.g. parliament has decided that impaired driving causing bodily harm deserves lesser sentence than that causing death).

Also some disagreement as to who the law speaks to? Does it speak to all citizens (as Morton suggests) or only to some?

Significance of what view you take what institutions are engaged? Institutional actors themselves may have incentive to promote the justification that engages their institution. Hart: when use utilitarian justifications, need reason, experience and science; Lewis: this necessarily creates role for experts and precludes ordinary citizen participation. When use more traditional justification (retribution) engage jurists and citizens (they are capable of making the determination). Devlin (sort of suggests): when use rehab as justification engage social workers and psychologists. When use moral retribution as a justification engage courts and lawyers. When use isolation/deterrence as a justification may engage prison system. When use denunciation as a justification (a la Hart) engage legislators

Arguments for/against various justifications of punishment:

UTILITARIAN JUSTIFICATIONS:Hart sees these as the modern conception of punishment ( goal of the criminal law is to reduce crime and protect society from the criminalthus punishment is justified on the basis that it deters/reforms a criminal, deters potential criminals, isolates criminals from society. According to this utilitarian view, the older conception of punishment, under which the justification for punishment is in the moral responsibility of the criminal, is irrational. He believes that in this way, the criminal law has tended toward the elimination of responsibility.

C.S. Lewis refers to these utilitarian justifications as the humanitarian theory of punishment which he believes is only disguised as being humane. In fact, b/c it has no place for the moral culpability of the wrongdoer, it is unjust and cruel: mercy detached from justice grows unmerciful. [see below for his specific criticisms]

Michael and Wexler:

Deterrence

Defn (Sweeny) ( General Deterrence: legal sanction imposed on actual offenders will discourage potential offenders. Specific Deterrence: legal sanction imposed on an offender will discourage that individual from re-offending.

Pros: supports the notion that the goal of the criminal law is the protection of society (Sweeney)

Cons:

Empirical Research: Little empirical research to support deterrence claims (mostly based on common sense). Success of deterrence varies widely depending on the crime (murder vs. tax evasion); this holds true for specific deterrence also (rates of recidivism vary from crime to crime) No evidence that more severe sanctions have a greater deterrent effect (esp for crimes of passion). (cite editors of S&D)

Lewis: Exemplary punishments (using criminal as an example or a means to someone elses end) are wicked; deterrence justification alone could support punishing an innocent man (so long as society thinks him guilty).

There are some acts that just cannot be deterred negligence is one of them; crimes of passion are another

Lack of intention = difficult if not impossible to deter.

Rehabilitation

Defn: idea that we can cure the offender and thus permanently ensure that he does not re-offend. Sweeny case: rehabilitation is not accomplished by custodial sentences.

For: Devlin ( social workers, medical people like this argument.

Against:

Research: little evidence as to the effectiveness of various punishments. Grave methodological problems associated with conducting this research. Also, experts/psychiatrists have little ability to predict dangerousnessand yet such predictions/determinations are necessary if offenders are to be released once they have been fully treated or cured.

Lewis:

Cures sounds more just and merciful than punishments but (1) cures are just as compulsory and (2) a cure includes most of the elements for which punishment is feared (loss of liberty, normality, property, etc.).

Problem of fixing the right sentence requires reliance on expert opinion; no longer a role for the ordinary man; thus considerations of justice and rights may not be employed.

If crime is a disease, how can it be pardoned?

Vengeance

Defn: Reprisal for harm that is motivated by emotion and anger

C.A.M.: has no role to play in a civilized system of sentencing.

J.F. Stephen: vengeance is a valid aim of punishment. Hatred and vengeance are deeply rooted in human nature; and criminal punishment is a necessary and desirable means by which this hatred can be expressed. Punishments should reflect the degree of hatred towards the criminal. Expression of hatred is the primary aim of criminal justice; direct prevention of crime is the secondary aim.

Sweeney case Judge Wood confuses retribution and vengeance.

**THIS IS A VALID JUSTIFICATION see s. 80 of the criminal law long sentence for negligent conduct. Doesnt serve a highly deterrent function or retributive function.so maybe it is vengeance. Maybe parl wanted societys anger to be able to be expressed (when someone died as result of negligent use of explosives).

Denunciation

Defn (C.A.M. Case): symbolic, collective statement that offender has encroached on societal values. A statement that these types of conduct are not acceptable in this society b/c they offend shared values.

C.A.M. case says that denunciation is a justification for punishment

Hart emphasizes that denunciation is the aim not of punishment but of the criminal law (i.e. legislation) more generally.

Morton: criminal law is a contemporary morality play. The purpose of the criminal trial is to demonstrate societys values to its citizens (instill in them rule-abiding values).

NON-UTILITARIAN JUSTIFICATION:

Retribution/Just Deserts(?):

Defn (CAM case): determination of a punishment which reflects the moral culpability of an offender. Takes account of intentional risk-taking of offender, consequential harm caused, normative character of conduct.

Example:

Pros:

Balances utilitarian justifications; may act as a restraint on them and thus result in more just sanctions (i.e. where utilitarian justifications alone might lead to harsh/severe/unfair sanctions) (Sweeny case)

Lewis: leads to justice.

Who supports which justifications? May depend on the extent to which it engages certain institutional actors. If you are a social worker, you would likely support a rehabilitation function.

Ultimately, in order for any theory of punishment or system of sentencing to be successful, it must be acceptable to the public (CAM case and Ryan make this point). This suggests a need to balance all the competing considerations and justifications.

ALSOask, are there institutions that would better serve these goals wrt this act/conduct/criminal?

Cetkovic case:

PART II: SOURCES OF THE CRIMINAL LAW: CODIFICATION VS. COMMON LAW CRIMES

CASE: R. V. Sedley

R. v. Sedley (1663), page 1

Sedley was indicted at common law for several misdemeanors against the Kings peace. Crime against the kings peace or a misdemeanor.

Threw piss down off a balcony. Very similar to Mochan.

CASE: Commonwealth v. Mochan

Commonwealth v. Mochan (1955)

Facts:

Dft, over 1 month period, on numerous occasions, telephoned a woman. His language on calls was obscene, lude and filthy.

No statute in Penn. that punished such conduct. No case that had been decided in the state that made such conduct criminal. [Note that while Canada has a federal criminal law, crim law in USA is regulated by the individual states]

Judgement:

Not impt that there is no precedent which decides this Q.

Test is not whether there is precedent in the books but rather whether offence can be punished under common law. Any act which tends to injure the public, to such an extent to require state to interfere and punish wrongdoer, as in the case of acts which injure public morality or obstruct governance.

Whatever openly outrages decency and injures public morals is a crime.

Commentary:

Notethere is a control here ( must be something that society agrees would outrage decency. Cant just punish any old conduct. (Control is on judge, police and prosecutor).

Concern that a judge might have too much power to decide what public morals are.

Concern ( uncertainty wrt what actions are allowed or not allowed. (Rights of the offender/individual) at the time when the guy made the call, he didnt know it would be a crime. But whats the philosophy behind protecting this kind of guy? The idea that we want to protect rights that he had before he became a lude caller.

This decision puts the society over the individual rights. Protects society at the expense of an individual.

Argument for flexible criminal law (giving judges power) ( impossible to make an exhaustive list of all behaviours that might engage criminal liability ( Willis article: he wants flexibility; no constraint of code and statutes

[an aside ( statutes are not retroactive; case law is retroactive (but in many casesonly when court says it was retroactive) ( once crime is declared, it was always a crime]

CASE: Frey v. Fedoruk

Frey v. Fedoruk, [1950] S.C.C. page 3

Facts:

Frey was seen on Fedoruks property peeping into a window of the house. Fedoruk chased him with a butchers knife, caught him and detained him. A police officer arrived and arrested him w/o warrant.

Frey sued for malicious prosecution and false imprisonment. The trial judge and court of Appeal dismissed the case, saying that a common law crime was justification for arrest w/o warrant.

Issue:

Is the commission of a common-law crime a justification for arrest/imprisonment without warrant? Is the act committed by Frey a crime at common law?

Held:

No.

Ratio:

Criminal offences are found only in the Criminal Code and established Common law. No person can be convicted of a crime that is not found in one of these two places. Since being a peeping tom was not an offence known to the law, there was no justification in law for Fedoruk and Stone to have imprisoned Frey.

It cannot be held as a matter of law that conduct not otherwise criminal becomes criminal because a natural and probable result thereof will be to provoke others to violent retributive action. This would result in great uncertainty.

Judicial officers do NOT have the power to declare anything to be an offence which is injurious to the public although it may not have been previously regarded as such.

Commentary:

[J. Willis, 1950, page 5]

Where do we now stand w/ peeping toms? ( not prohibited by any section in the code and is not a criminal offence at common law

Where do we stand w/ common law offences? ( fear that if crimes are confined to those established in statutes, lose advantage of common law; its advantage of being capable of application to new combinations of circumstances that recur. When Criminal Code was first introduced into H of C, common law was preservedin order to give the code elasticity.

In this case, the Supreme Court rejected this notion of elasticity in favour of certainty in administration ( no one shall be punished for anything that is not expressly prohibited by law. S.C. chose to place the protection of the individual from oppression above the protection of the state from disorder.

Note: 1955 Revision of the Criminal Code abolished Common-law offences (s. 9) but preserved common law defences. It also made it a crime to be a peeping tom.

Q: Have Professor Williss fears been satisfied by legislative action?

[Sklar]:

Rule from this case puts burden on legislature (to declare acts that are injurious to society criminal)

S. 9 eliminates common law offences goes beyond F v. F which held that crimes had to be written (in Code OR in Common [case] law)

Response to F v. F ( S. 177 Criminal Code

RULE: Law must be written down before person can be convicted of a crime. (Not equivalent to S. 9 of Code which eliminates ALL common law offences). Note that this is the PRINCIPLE OF LEGALITY citizens should know beforehand what is punishable.

S. 177 Criminal Code Peeping Toms

Everyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling house situated on that property is guilty of an offence punishable on summary conviction.

The criminal law is the most severe infringement on individual liberty. It should be used sparingly and as a last resort. This is why the statute is read so narrowly.

Comments:

Crown must prove: loitering, at night, on property of another, near dwelling house on that property

Accused can: prove lawful excuse. (This is a statutory exception to burden on the crown as envisioned by Woolmington)

See how narrowly it is drafted ( only dwelling houses, only at night.

Why did Parliament draft it so narrowly? ( to avoid frivolous charges, to prevent the most frightening behaviour (night, near your house, etc.).

ALWAYS ASK: What is purpose of statute? What kind of conduct is it designed to cover? Why is it as narrow or as wide as it is? (Goldstein crim law is last resort. There are other institutions out there)

How to read a CC statute:

-what are the elements

-what are the policy implications

-what other potential crimes can fall under a statute.

Procedural Classification of Offences, page 161-163

Criminal Code distinguishes between (1) indictable offences; (2) offences triable only by way of summary conviction proceedings; (3) offences triable on indictment OR by way of summary conviction proceedings.

This designation affects trial and appeal procedures but also many pre-trial rights and responsibilities.

The section which creates the offence and specifies its punishment also states the manner in which it is to be tried.

Offences triable only on indictment

Indictable offences divided into three categories

[1] Most serious offences given into exclusive jurisdiction of the superior Court of criminal jurisdiction. [Exclusive jurisdiction = no other court can try these offences]

[2] Least serious offences absolutely w/in the jurisdiction of a Magistrate [Absolute = entitled to try these offences; not dependent on accuseds electing to be so tried].

[3] Remaining Offences accused is allowed to choose his mode of trial elect provincial Court judge with no jury, a Judge w/o a jury, or a Court composed of a judge and jury. If he doesnt choose, gets judge and jury. Recently enacted provisions allow the accused to change his mind and re-elect his mode of trial.

Summary Conviction Offences

Trial before a provincial judge w/o a jury and w/o a preliminary inquiry

Maximum penalty for a summary conviction offence (unless otherwise provided) = $2000 fine or six months imprisonment or both.

Hybrid Offences

Instances in which legislation makes the offence punishable on indictment or on summary conviction at the option of the Crown.

Comments by Sklar:

Get some feeling as to different types of offences 3 types

Indictable offences analogous to the common law felony (used in USA), summary conviction offences analogous to misdemeanor - general maximum imprisonment is 6 months but for some crimes maximum is 2 years (are these hybrids?) Procedures are different for indictable and summary conviction offences

Hybrid: indictable offence with max 4 years imprisonment OR punishable on summary conviction - this gives power to the prosecutor b/c he/she can choose can use this in a plea bargaining situation. Prosecutor will choose depending on the facts of the case (i.e. severity of the crime committed).

Law Reform Commission of Canada, The Jury in Criminal Trials, page 162

Questions of law decided by judge. Questions of fact decided by jury. So who applies law to facts?

Judge instructs jury on the law ( jury then applies the law.

THUS, jury instructions must satisfy two requirements: (1) must be accurate; (2) must be easy to understand.

These two requirements may conflict ( to make instructions accurate, may need to make them long repetitious and disjointed; this may sacrifice comprehensibility.

Often alleged that one of the most serious deficiencies of trial by jury is the jurys inability to follow and comprehend the instructions given by the judge. Confusion about the law = jurors cannot perform their function.

Sklar:

Judge vs. Jury (function) in Woolmington, judge screwed up when instructing the jury (misstated the law); Qs of law for judge, Qs of fact for jury. Judge must instruct jury wrt what the law is. Jury must apply the law to the facts.

Example of instruction that a judge gives: Woolmington v. D.P.P (man kills estranged wife and says it was an accident): 3 verdicts possible ( guilty of murder, guilty of manslaughter, aquittal

A - Statutory Interpretation; Rule of Strict Construction of Penal Provisions

ALWAYS ASK: What is the purpose of the statute? What kind of conduct is it designed to cover.

Sklar: There are policies behind all criminal statutes. Language must be interpreted in light of these policies/reasons for enactment ( S. 177, Pare, Woolmington all show examples of this.

Using the Rule of Strict Construction

Provision with possibility of multiple interpretations based on literal reading of the text. ( may use dictionary to illuminate defn.

(Need to determine if there is one right one ( Look to context/parliaments intent.

(Determining Parliaments intent/purpose: (1) Context - look at surrounding provisions and section heading (is there a uniting feature that can be said to be underlying policy consideration?); (2) Common sense and rationality (Parliaments intent would not be reflected by an interpretation that is contrary to common sense Par); (3) French text look at French version of text R v. Mac. IS THERE ONE INTERPRETATION THAT COINCIDES WITH PARLIAMENTS INTENT?

(If more than one possible interpretation ( GENUINE ambiguity ( use rule of strict construction ( choose interpretation that favours accused.

SH: When doing statutory interpretation, also look to authorities (i.e. precedent) AND to policy considerations.

CASE: R v. Goulis

R. v. Goulis, [1981] Ont. C.A., page 52

Doctrine of Strict Construction

Well known rule of statutory construction ( if a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted.

This does NOT mean that a word which has two accepted meanings must always be given the more restrictive meaning.

To determine the correct meaning, Court must first endeavour to determine the sense in which Parliament used the word from the context in which it appears.

Only in the case of an ambiguity which still exists after the full context is considered should the above rule of construction be used. This is another way of stating the principle that the conduct alleged against the accused must be clearly brought within the proscription.

Sklars Comments (January 16, 2003):

We see the principle laid out here applied in Pare

Look to see if provision is genuinely ambiguous (2 equal meanings) ( interpret in favour of accused (doctrine of strict construction).

Deciding if there is genuine ambiguity usually must look to intention of parliament. If still ambiguous use strict construction. Par shows that the rule of strict construction doesnt always apply.

Rule

If a penal provision is reasonably capable of two interpretations, must adopt the interp which is more favourable to the accused. This rule should only be used when provision is still ambiguous after the full context is considered (parliaments intent, etc.).

CASE: R. v. Par

R. v. Par, [1987] S.C.C., page 53

Facts:

Accused indecently assaulted a 7-year old boy. The accused said that if the kid told his mom, he would kill him. He held the boy down for 2 minutes and when the kid threatened to tell his mother, the accused killed him through strangulation and hitting him with an oil filter.

The accused was charged with and convicted of first-degree murder on the basis of what is now 231(5) of the Code. He is appealing the verdict on the basis that the death was not caused while committing an in indecent assault.

Issue:

Should the accused have been convicted of 1st degree murder given that it requires that the death is caused while committing the assault?

Held:

Yes. Appeal allowed, conviction restored.

Ratio:

Respondent argues that while committing must be narrowly construed so as to elevate murder to first degree only when the death and underlying offence occur simultaneously. (simultaneous approachcoincides w/ literal reading). [There are thus two possible interpretations of this provision ( simultaneous and continuous]

The seriousness of imposing criminal penalties of any sort demands that the doctrine of strict construction be used and thus that reasonable doubts be resolved in favour of the accused.

In order to interpret the statute in this way, court must look at the text AND at the scheme and purpose of the legislation (legislators intent?).

Common sense and rationality: Here, the narrow construction forwarded by the respondent cannot be reasonably attributed to parliament because (1) it would be difficult to define the beginning and end of an indecent assault and (2) the simultaneous approach leads to distinctions that are arbitrary and irrational. (3) Isnt the crime just as serious if committed simultaneous with assault as if committed after it? [Sklar: maybe more serious]. An interpretation that runs contrary to common sense should not be adopted if a reasonable alternative is available.

Parliaments underlying policy: The policy considerations underlying the provision (i.e. imposition of exceptional penalties [Murder 1] on offences involving the unlawful domination of people) suggest that the single transaction analysis approach be used. In the case at bar, the murder was temporally and causally connected to the underlying offence. It formed part of one continuous sequence of events; part of the same transaction.

Commentary (Sklar):

Rationale for using doctrine of strict construction ( seriousness of imposing criminal penalties; liberty is at stake. History: draconian penal provisions.

Law Reform Commission said that there was no organizing principle uniting all these crimes elevate murder to Murder 1. Court says there IS an organizing principle ( unlawful domination of one person by another. This unlawful domination singles out these cases for the more harsh punishment associated with Murder 1 (25 years w/o a possibility of parole).

Par is a lesson wrt how courts approach interpretation of language in the criminal code (see it in Hutt, Mac also). We dont have the same rules of interpretation in the civil and criminal lawWHY? b/c liberty is at stake in the criminal law.

Rule:

Single Transaction Rule: While committing means that the murder and assault was part of one continuous sequence of events, part of the same transaction.

Strict Construction: Only interpret in favour of the accused if there is genuine ambiguity. (See rule from R. v. Goulis being applied herewhere there is no GENUINE ambiguity).

Applying Rule from Par

Two considerations to be made ( (1) Is it a single, continuous transaction?; (2) Is there a situation of unlawful domination of one person by another?

At what point does the transaction and the domination end? At the point at which they end ( murder is no longer done while committing the assault and the accused would only be guilty of first degree murder.

Example: Par case but after sexual assault, kid goes to pee. Yells for his Mommy and guy kills him. Sklar: No longer a single transaction. There is a break in the sequence of events. BUTconsider policy underling the single transaction approach ( unlawful domination. While victim is still in sight of accused, he is under his domination. Thus, this IS a single transaction and the murder occurred while the accused was committing the assault.

Example: After sexual assault, they go to MacDonalds. Kid threatens to tell Mommy so accused takes him into parking lot and kills him. No longer a single transaction b/c break in the sequence of events (definite breakdrive to MacDonaldstime for accused to think). Domination ( no longer under his unlawful domination (why?boy has chance to run, not being held down, not in constant sight of the accused, accused is buying him food). This might not be murder 1 under 231(5) but it may be murder 1 under 231(2) b/c here the murder might be planned and deliberate.

Wrt point at which domination ends ( does age, sex, mental state of victim matter? Problem with this ( where do you draw the line (6, 7, 10 years old??).

R. v Russell 2001, 157 SCC.An elaboration of Pare rule.

Facts: Russell sexually assault X. After sexually assaulting her and tying her up and gagging her, he retied her. Russell then went downstairs and killed Whitaker.Issue: Interpretation problem: Does ss. 231/5 require that the crimes be committed to the same victim for the single transaction rule to be applied.

NB* In this case, the victim of the forcible confinement is not the same as the victim of the person that is killed.

While committing problem: Not an issue, X is still tied up.Ratio:Parliaments intent SH analytical MAP:context

P 15 of judgement: When parliament wanted to add 231.6. Criminal harassment.

Look at other provisions: in the context of other provisions:

The using of explosives ss. 81If Parliament had intended to restrict the scope of s. 231(5), it could have done so explicitly, as it did in s. 231(6). That Parliament did not incorporate such a restriction suggests that it intended "while committing or attempting to commit" to apply even where the victim of the murder and the victim of the enumerated offence are not the same.

Common Sense:

Thus an organizing principle for s. 214(5) can be found. This principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime.

What policy considerations also exist?What sort of message does this send to the population. IE purpose of the criminal law. Here parliament wants to punish exeptionaly serious/blameworthy crimes.Distinction: OBITER: In a number of precedents, citing Pare ect.HOWEVER, in those case this issue was not in front of the court. The ratio was specific to the facts of those particular cases.

RULE: The expression "while committing or attempting to commit" requires the killing to be closely connected, temporally and causally, with an enumerated offence. As long as that connection exists, it is immaterial that the victim of the killing and the victim of the enumerated offence are not the same.Holding: Doesnt have to be the same victim.The preliminary inquiry judge did not err in finding that s. 231(5) may apply even where the victim of the murder and the victim of the enumerated offence are not the same. If the ordinary meaning of the words is consistent with the context in which the words are used and with the object of the Act, then that is the interpretation that should govern. The language of s. 231(5) is clear. The provision does not state that the victim of the murder and the victim of the enumerated offence must be one and the same. It requires only that the accused have killed while committing or attempting to commit one of the enumerated offences. If Parliament had intended to restrict the scope of s. 231(5), it could have done so explicitly. Judgments from this Court dealing with s. 231(5) never intended to foreclose its application to multiple-victim scenarios. None of those previous cases involved multiple-victim scenarios, and the issue was simply not addressed by the Court. Section 231(5) reflects Parliament's determination that murders committed in connection with crimes of domination are particularly blameworthy and deserving of more severe punishment. The expression "while committing or attempting to commit" requires the killing to be closely connected, temporally and causally, with an enumerated offence. As long as that connection exists, it is immaterial that the victim of the killing and the victim of the enumerated offence are not the same.

In this case, there was sufficient evidence to warrant committing the accused to trial for first degree murder. The existence of a temporal link was conceded, and the preliminary inquiry judge found that the Crown had adduced sufficient evidence to allow a jury to find the requisite causal connection. A preliminary inquiry judge's determination of sufficiency is entitled to the greatest deference; only if there is no evidence on an element of the offence, or on an essential condition of s. 231(5), can a reviewing court vacate the committal. While the jury would be entitled to find that the accused's intention in confronting the tenant was entirely independent of the forcible confinement of S, it would also be entitled to conclude that the accused murdered the tenant to facilitate his forcible confinement of S, or that he forcibly confined S to facilitate his murder of the tenant.

We need to link the killing of Whitaker to the domination of X, s.231 applies. If the reason is independent, because he is racist then 231.5 does not apply.

CASE: R. v. Muchikekwanape

R. v Muchikekwanape (2002) 166 C.C.C. (Manitoba C.A.)Facts:

Woman is killed; man is seen walking w/ her twds a bridge; she is heard screaming. Police find her body in the river.

Evidence of sexual intercourse. Laceration in the genital area. Expert evidence shows that laceration occurred at or after the point of death.

Cannot be proved beyond RD that sexual assault took place before she died.

Accused denied that he killed the woman. Alternative argument: if jury finds that beyond RD, the accused killed her, there is reasonable doubt as to when the assault was committed (before or after death)thus should not be murder 1.

Trial Judge instructed jury: If you are satisfied beyond RD that accused murdered deceased, he would be guilty of 1st dgr murder if the murder occurred while committing the assault. While committing would be satisfied if the sexual assault and killing were part of the same transaction, even if the heartbeat of the deceased had in fact ceased by the time the sexual assault took place.

Issue:

Was the trial judge in error? Must jury find that deceased was alive when assault took place OR is it sufficient that assault and murder are INTERTWINED in order for 1st degree murder to be made out?

Holding/Ratio:

Court finds instructions to be correct. What constitutes single transaction must be tailored carefully in each case. Leg intended that where accused exploits power and commits murder in process, murder in 1st dgr is established.

So when assault and murder are so inextricably linked as to constitute a transaction, 231(5) is satisfied. To say otherwise would be deciding the issue on the matter of minutes and seconds.

[Dissent]:

Points to a different part of 231(5) ( while committing or attempting to commit. If she is already dead, this is no longer a commission of a sexual assaultcannot commit a sexual assault on a dead body.

[Note: act says attempting to commit a sexual assault ( what if he didnt know that she was dead? If he didnt know that, he would be attempting to commit sexual assault. If he did know that she was dead, this is a violation of 182 (b) indecent violation of a dead body. This crime is not enough to elevate murder 2 to murder 1].

Sklar:

If he knew she was dead ( the dissent would be correct (he was committing necrophilia). If he thought she was alive ( he would be guilty of attempting a sexual assault (recall what attempt is ( if you stab a dead bodycan be guilty of attempted murder). To have the mens rea for necrophilia ( you must believe that the person is dead. If you think the person is alive ( could never be guilty of necrophilia. If you have the mens rea for a particular crime, even if it was not possible to commit it, you will be guilty of attempting to commit that crimeb/c you are morally blameworthy for that crime. The actus reus would be the attempt to commit it.

RULE:

Murder and a sexual assault (or attempted sexual assault) form a single transaction so long as they are inextricably linked. It doesnt matter if the victim is dead or alive when the murder is committed (unless the accused knows that she is dead). This supports Parliaments intention to impose exceptional punishment when murder occurs in the process of exploitation of power/domination.

CASE: R v. Mac

R. v. Mac

Facts:

Accused was charged with possession of tool for purpose of forgery pursuant to s. 369(b) of the Criminal Code.

The language of this section says that the tools must be adapted for the purpose of forgery.

Trial judge convicted accused. C.A. overturned conviction by using strict construction rule. That is, adapted can have two meanings suitable for that purpose OR modified or altered for that purpose. C.A. said word was ambiguous and thus interpreted it as modified or altered for that purpose in favour of the accused.

Issue:

What is the meaning of adapted in s. 369(b) of the Criminal Law?

Held:

Adapted means suitable for. Appeal allowed. Conviction restored.

Ratio:

French and English versions of the Code are equally authoritative. When words of one version raise ambiguity, courts should first look to the other official language version.

S. 369(b) and 342(1) [forging and falsifying credit cards] are related provisions and should be read together. 342(1) uses adapted in the English version and modifi in the French version. 369(b) uses adapted in the English and adapt in the French. Given that modifi was used in 342(1) and adapt in 369(b), the correct interpretation of adapted in 369(b) is suitable for.

The meaning of 369(b) is thus not ambiguous and the rule of strict construction should not be applied.

Rule:

If language is ambiguous, look at the translation to help clarify ambiguity. Sklar adds: The reasoning used in this case requires that Parliament intended to use different words in the French and English versions.

Sklar:

This rule makes sensebut perhaps not in this case. Problem in this case is that it may not have been Parliaments intention to use different words in the French and English versions. This case is being decided on the basis of actions taken by the translation office.

PART III: CORNERSTONE PRECEPTS: THE PRESUMPTION OF INNOCENCE AND THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT

Woolmington: Presumption of Innocence. Crown has burden of proof and must prove guilt beyond reasonable doubt. Doubt can be raised by accused or by Crown.

Osolin:

Lichfus and Star: give meaning to proof beyond reasonable doubt (while Woolmington establishes it as the standard of proof).

CASE: Woolmington v. D.P.P.

Woolmington v. D.P.P., [1935] H.L., page 76-82This case articulates the cornerstone precepts of presumption of innocence and that the Crown must normally prove to a standard of proof beyond a reasonable doubt. Note that these precepts were asserted by the H of L relatively recently.

Facts:

Woolmington shot and killed his estranged wife. He was convicted of willful murder and sentenced to death.

He is appealing the conviction on the basis that he shot her accidentally. He claims that he bought the gun and took it to where she was living so that he could scare her into thinking he was going to commit suicide. He claims that while drawing the gun, it went off accidentally and killed her. After the shooting, he ran off on a bicycle. The aunt saw him run off. The aunt heard him say: Are you going to come back home? [notethis is evidence that shows intent] At trial, the judge instructed the jury that once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the actcan satisfy a jury that what happened was something less [accidental, manslaughter, justifiable, etc.]. That is, once the killing is established, the burden of proof is on the prisoner to prove any circumstances of accident, necessity or infirmity.

Issue:

Did the judge mis-instruct the jury wrt the presumption of innocence and burden of proof? (i.e by instructing the jury that it is incumbent on the accused to prove his innocence?). Did the man intend to kill his wife or was it accidental?

Held:

Yes jury was misinstructed.

Ratio:

In some exceptional cases only, the onus is placed upon the accused to establish a defence (insanity, statutory exceptions).

The accused is entitled to the benefit of any doubt brought out in evidence.

The prosecution must prove the guilt of the prisoner and there is no burden laid on the prisoner to prove his innocence. It is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.

In order for accused to be convicted, the prosecution must prove the case beyond reasonable doubt.

Where intent is an ingredient of a crime, there is no onus on the dft to prove that the act alleged was accidental. If, at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased w/ a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Prosecution must show malice accused can rebut but doesnt have to prove no malice in order to be acquitted.

[So2 ways to be acquitted ( jury accepts accuseds explanation as to why death was unintentional/accidental OR jury is left with reasonable doubt whether (even if his explanation is not accepted), the act was intentional or provoked]

Commentary: (Sklar)

How do you prove intent to kill? ( By a persons conduct. You prove what one intends by what he does. Look at the circumstances of the event. [In this casesawed-off shot gun supports accident BUT riding off and staring down aunt supports intent] By a confession (as in Par) By showing motive (e.g. if no evidence of animosity, evidence of accident is stronger) [In this case, use of word jealousy in a statement shows motive] Where does the judge get this crazy principle? (i.e. that prisoner has burden of proving accident) ( one of the most renowned criminal law writers (Foster) stated itand then other writers and judges followed it.

Most Criminal Code provisions that shift burden to accused are the subject of a charter challenge (violation of presumption of innocence guaranteed by s. 11d)

RULE:

All the elements of proof must be established by the Crown. No shift of burden of proof (except for defence of insanity and statutory exceptions). It is not for the accused to establish his innocence but for the prosecution to establish his guilt. In order for accused to be convicted, Crown must prove the case beyond reasonable doubt. The prosecution OR the accused may be the source of reasonable doubt. Presumed Innocence (

(Accused raises doubt as to guilt and jury accepts it.

Accused raises doubt as to guilt but not accepted

OR

AND

Crown unable to prove BRD that he is guilty

Crown proves guilt BRD.

(

(ACQUITTAL

CONVICTIONGolden Thread Quote

Famous quote from Woolmington: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to the defence of insanity and subject also to any statutory exceptions. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

CASE: R v. Osolin

Prosecution has onus of negativing all possible defences BUT a defence is not in the case unless there is evidence capable of supporting it. Whether or not such evidence exists is to be decided by the JUDGE

R. v. Osolin, [1993] S.C.C. page 82

Facts:

Accused charged with sexual assault. At trial, he testified that the complainant was an eager participant in all the acts leading up to and including sexual intercourse.

The judge did not charge the jury wrt the defence of honest but mistaken belief in consent b/c he ruled that there was no air of reality to the defence.

Accused was found guilty.

Issue:

Did judge mischarge the jury wrt the defence of honest but mistaken belief in consent? [What is the meaning of the words sufficient evidence in s. 265(4)?]

Held:

NO.

Ratio:

A basic rule applicable to all defences [s. 265(4)]: A trial judge must instruct the jury only upon those defences for which there is a real factual basis. A defence should not be put to the jury if a reasonable jury properly instructed would have been unable to acquit on the basis of the evidence tendered in support of that defence. It is for the trial judge to decide whether the evidence is sufficient to warrant putting a defence to a jury as this is a question of law alone.

If judge decides that evidence is sufficient, he will put the defence to the jury; the jury will then weigh it and decide whether it raises a reasonable doubt.

This is an example of the division of tasks between judge and jury: it is the judge who determines if there is sufficient evidence adduced to give rise to the defence.

Commentary:

This case does NOT contradict general principle that burden of proof is on the prosecution. Osolin does NOT put putting a burden of proof on the accused. It is putting an EVIDENTIARY BURDEN on the accused to raise the issues.

It is up to the accused to make a defence a live issue in the case. Accused provides some evidence ( judge decides if there is air of reality to it (if there is possibility that reasonable jury could acquit based on evidence) ( If yes, charges jury of this defence ( prosecution then has job of negativing it ( jury will weigh it and determine if it raises reasonable doubt.

Distinction btwn Qs of law and Qs of fact is artificial. Wrt sufficiency of evidence, appears to be a Q of fact but is NOTis a Q of law.

Rule:

A trial judge must instruct the jury only upon those defences for which there is a real factual basis. Trial judge must decide if there is sufficient evidence that a reasonable jury could acquit on basis of it. Sufficiency of evidence to support a defence is a question of law, for the judge to answer.

Supreme Court may decide that a defence is such that burden should be shifted:

Example ( Davio case ( new defence created: person is SO drunk that he doesnt know what he is doing.

In the Davio case, trial judge used this defence ( Trial judge didnt believe Davios claim that he didnt know what he was doing but acquitted him b/c there was reasonable doubt that he knew what he was doing.

S.C.C. said that for future cases ( burden of proof for this defence should be shifted to the accused ( accused must prove beyond a balance of probabilities that he didnt know what he was doing.

Had burden been shifted to Davio in this case, would have been convicted.

**Accused never has to prove anything beyond reasonable doubt. Only has to prove beyond the balance of probabilities. (SH: in all cases where the burden lies on the accuseds. 177?)

C.K. Allen, Legal Duties and Other Essays in Jurisprudence (1931) It is better that ten guilty persons should be acquitted than that one innocent person should be convicted. Allen challenges this statement: It all depends on what the guilty persons have been doing and the general social conditions in which they have been doing it.

BUT if ratio is extended indefinitely system of justice breaks down and society is in chaos. We can permit a humane level of doubt to prevail over security while remembering that the acquittal of ten guilty persons is ten times as great a failure of justice as the conviction of one innocent person.

Allen compares the burden of proof in the civil and criminal trial: Balance of probabilities (civil) vs. proof beyond reasonable doubt (criminal). He argues that although reasonable doubt is not uttered in civil cases, the required degree of certainty is the same.

Principle of reasonable doubt ( little more than a counsel of prudence; the degree of certainty that one would act upon in ones own grave and important concerns. Such a degree of certainty should exist wrt all legal matters.

Allens point: Why should liberty be protected more than property?

He suggests that: its not as if the jury has to be more careful in a criminal case (than a civil case), it just has to be more persuaded. Liberty does require that there be a stronger overall case on the part of the prosecution before we send a person to jail.

Law Reform Commission of Canada, Burdens of Proof and Presumptions (1973) Discusses two central concepts: high standard of proof, presumption of innocence (judge must direct jury as to both). Guilt beyond a reasonable doubt is inextricably linked to presumption of innocence.

Justification for high standard of proof in criminal cases: purposes for which criminal sanction is used, seriousness of deprivation of liberty, stigmatization of accused that results from conviction; other social, econ consequences that a criminal conviction entails.

This high standard of proof is expressed by proof beyond a reasonable doubt

Civil cases preponderance of evidence (focus on amt of evidence that prosecution must produce); Criminal cases focus on degree of belief of evidence brought by prosecution

Crown satisfies its burden of proof if it convinces the jury beyond a reasonable doubt of the existence of all the facts the Crown must prove

Proof beyond reasonable doubt is a good formulation b/c can be understood by laymen; its meaning is perfectly intelligible (note this is countered in the Lichfus case)

Judge must also instruct jury that accused is innocent until proven guilty Presume vs. Assume: preferable to use the latter suggests that as a matter of social policy, a persons innocence is assumed from the outset of the case. Presume a fact that is inferred from certain basic facts proved at trial.

Justification for presumption of innocence: so that jury will ignore all suspicions arising from the arrest, indictment and arraignment and reach a conclusion solely from the legal evidence adduced.

Case: R. v. Lifchus

R v. Lifchus, [1997] S.C.C., page 87-90

Facts:

Accused charged and convicted of fraud.

Accused appealed judgement on basis that trial judge had mis-insturcted the jury on the meaning of the expression proof beyond reasonable doubt. Judge had instructed jury that the words in the expression were to be understood in their ordinary, natural, everyday sense.

Issue:

Did the judge mis-instruct the jury wrt the meaning of proof beyond reasonable doubt?

Held:

C.A.: Yes, Appeal allowed. New trial ordered.

S.C.C.: Yes, denied Crowns appeal.

Ratio:

The expression proof beyond reasonable doubt is composed of words used in everyday speech, but that have a specific and special meaning when used in criminal proceedings.

B/c a persons liberty is at stake, it is crucial that jury be correctly instructed as to its meaning.

A good definition should explain that: (1) standard of proof beyond a reasonable doubt is inextricably linked to presumption of innocence principle; (2) burden of proof always rests on the prosecution, never shifts to accused; (3) reasonable doubt is not doubt based on sympathy or prejudice but reason and common sense; (4) it is logically connected to the evidence or absence of evidence; (5) it does not involve proof to an absolute certainty; (6) more is required than proof that the accused is probably guilty.

A good defn should not include: describing the term as having an ordinary meaning (i.e. it has a special meaning in the criminal context) contrast to article above; telling jury to apply same standard as they would apply in their own impt matters (contrast to Allen article), etc. (page 88)

If the charge set out by the trial judge gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.

Commentary:

Elaboration on model charge elements:

Doubt based on reason: must have reason for the doubt (e.g. you think that prosecutions evidence was not convincing)

Proof beyond reasonable doubt does not have to be proof to an absolute certainty: Certainty runs from 0% - 100%. Beyond reasonable doubt = about 95% (sure that he is guiltyso that