criminal law nca summary (2)

8/13/2019 Criminal Law NCA Summary (2)

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For tutoring on this subject by the person who created these notes, call Andrew @ (647) 878-6!!, or e-"ail hi" @ andrew#captan@utoronto#ca # $e success%ully co"pleted all o% the &'A reuire"ents in the anuary, *++ sitting&ote. /oronto and surrounding area only0

'1232&A A5

2&/1'/2&

0 91':9 F '1232&A A5

- With exception of contempt, criminal offences are created by statute, mostly by the Criminal Code [“CC”]* See Frey ; Fedoru excludes from crime reasonable physical correction of children by their parents and

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teachers% he C3C, and other foundations, see# declaration that this exemption "iolates s 9 because it fails to!i"e procedural protections to children$ "iolates s 78 because it constitutes cruel and unusual punishment and"iolates s 7B%299:6 Constitutionality of pro"ision alloin! parents and teachers to use minor correcti"e force1:A9&2&>.

s 9 analysis6 Section 9 protects indi"iduals from "iolation of their personal security% Fc+achlin found thatthere as no "iolation of section% he Cron had conceded that the la ad"ersely affected the childGs security

of person, so the issue as hether the "iolation offended a principle of fundamental 5ustice% he 3oundationproposes three claims as mentioned abo"e% Fc+achlin re5ected the first claim that it failed to !i"e proceduralprotection as children recei"e all the same protection as anyone else% does not lead to a "iolation of s 7B of the Charter, and the 3oundation erroneously e:uates e:ualtreatment ith identical treatment% So hile s A> ma#es a distinction on the basis of a!e (tri!!erin! s 7B, thedistinction isn;t discriminatory% he :uestion may be put as follos6 "ieed from the perspecti"e of thereasonable person identified abo"e, does 'arliament;s choice not to criminali=e reasonable use of correcti"eforce a!ainst children offend their human di!nity and freedom, by mar!inali=in! them or treatin! them as less

orthy ithout re!ard to their actual circumstancesH$:6 he la stands

'1232&A FF:&':9

- he elements of an offence include6

() /he =$92'A ele"ents (actus reus): the act that must be performed$ the omission thatmust be proscribed$ the circumstances or conditions in hich the act must occur$ the accused mustha"e acted "oluntarily$ causation must be established (if rele"ant$ and any conse:uence that mustbe caused by the act%

(*) /he 3:&/A ele"ent (mens rea): as a !eneral proposition, a true crime ill be interpretedas re:uirin! sub5ecti"e mens rea unless it is clear that 'arliament ished to impose ob5ecti"eliability%

0 A'/9 1:9

(a) Acts and 9tatutory 'onditions.

- he act must be the act of the accused, and must be the #ind of act described in the rele"ant pro"ision, and the actmust be committed under the circumstances or conditions specified in the offence, e%!%6 an accused cannot be con"icted

of the offence of brea# and enter ith intent to commit a criminal offence pursuant to s >A.(7(a unless he “brea#s” and“enters” somethin! that :ualifies as a “place”

(b) Acts must be “Voluntary” or “Willed”:

- See "oluntariness defences belo

(c) !e “Act” of "ossession.

- here are a couple of offences in the CC that ha"e “possession” as an element (of the actus reus, e%!%, possession offirearm related offences, possession of property obtained in a crime (s >BA(7, etc%- “'ossession” is defined in s A(>6 / person has somethin! in his “possession” here

(a Ie has it in '1S


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/ brief handlin! of stolen !oods ith full #noled!e of their character solely for the purpose of !ett in! rid of them doesnot constitute possession, for example

his is because conduct may be characteri=ed as criminal only here the Cron pro"es the existence of ablameorthy state of mind%$:. he 5ud!e con"icted the appellant on the !rounds that the appellant #ne that the !oods ere stolen, and thathe exercised physical control o"er them ithout notifyin! the police or the ri!htful oners% he blameorthiness of thisconduct fell short of that re:uired for a con"iction for a crime of dishonesty% /ppeal alloed

'33:&/6 0ote ho the “act” of possession has a mental element$ so sometimes the actus reus and mens rea are notdistinct

1 " errence (#tates t!e law of %oint possession re s '()(b) t!ere must be e$idence of knowledge& consent andcontrol o$er t!e sub%ect matter re: t!e person w!o does not manually possess t!e stolen goods)FA'/9. 1espondent, the passen!er in a stolen car, as char!ed ith its possession contrary to s% >7> of the Criminal %Code he respondent testified that he didn;t #no the car as stolen% here as no direct e"idence to contradict hisstory%299:. he important :uestion raised by this appeal relates to the true meanin! to be attached to the ord “possession”as the same occurs in the context of s% >(A( ! of the Criminal Code and more particularly hether “possession” as thereemployed imports control as an essential element [0o s A(>]1:A9&2&>6

Jnoled!e and consent under s A(> must co-exist ith some measure of control o"er the sub5ect matter$:. SCC a!rees L Court of /ppeal that control is a central element of possession$ /ppeal dismissed

1 " 'ham (#tates t!e law in relation to constructi$e and %oint possession: for constructi$e possession as setout in s '()(a)(i) and (ii) A*+ %oint possession defined in s '()(b)& t!ere must be bot! knowledge and control,

And pro$ides an example of !ow t!e law of possession is applied)FA'/96 here as no e"idence of actual possession in that the appellant as not present in the apartment hen thesearch as conducted, so that the Cron;s case rested on constructi"e or 5oint possession (ithin a premise% ?ru!exchan!es ere occurrin! at ';s apartment, and a nei!hbor sa and heard ' openin! doorLcollectin! money% 0!uyenbecame an occupant of the apartment% , 8KK> at A6AK p%m% the appellant as seen (by sur"eillance to lea"eher apartment and did not return prior to the sei=ure of the dru!s on Farch B, 8KK>% 0!uyen as the only person theredurin! the search%299:. Whether the appellant had #noled!e and control of the cocaine found in the blac# cloth purse in the bathroom,sufficient to constitute constructi"e or 5oint possession as defined in para!raphs A(>(a and (b of the Code%1:A9&2&>6

&n order to constitute constructi"e possession, there must be #noled!e, and some measure of control o"er the item

&n order to constitute 5oint possession pursuant to section A(>(b of the Code there must be #noled!e, consent, anda measure of control on the part of the person deemed to be in possession%

Whether someone is in possession of somethin! pursuant to section A(> of the Code is a :uestion of fact to bedetermined on the e"idence based on the inferences to be dran in each case

he e"idence and the trial 5ud!e;s findin!s support the conclusion that she as in constructi"e andLor 5oint possessionof the cocaine (the court lists the e"idence and findin!s that exhibit #noled!e and control, e%!%”the blac# pursecontainin! the dru!s and the ba! containin! the money ere found in full "ie in the bathroom, a common area of theapartment'33:&/6 1emember that #noled!e can be established by circumstantial e"idence (don;t need direct e"idence

(d) -onsent as an Element of t!e Actus .eus

- /bsence of consent by the "ictim is an important actus reus condition, and must be present for offences to occur- &f alle!ed "ictim alle!edly consented, must also consider hether the consent is obtained lafully6 s 8MB(>

1 " anchu# (Explains law on consent in relation to sexual assault& and gi$es an o$er$iew of t!e elements of asexual assault)

FA'/9. &nter"ie in "an, be!an touchin!, hich pro!ressi"ely became more intimate, notithstandin! complainantsayin! “no”% /ny compliance by complainant as done out of fear% rial 5ud!e ac:uitted accused on !rounds of impliedconsent%299:. Whether the 2 erred in understandin! of consent in sexual assault and hether his conclusion that the defenceof implied consent exists in Canadian la is correct1:A9&2&>.

/ con"iction for sexual assault re:uires proof, beyond a reasonable doubt (“L1L?”, of to elements6(7 the actus reus (unanted sexual touchin! and absence of consent$(8 the mens rea (the intention to touch N #noin! of, or bein! rec#less of or ilfully blind to, a lac# of

consent, either by ords or actions, from the per son bein! touchedThe "ctus Reus6

he absence of consent is subjecti;e, determined by reference to the complainant;s sub5ecti"e internal state of mindtoards the touchin!% he actual state of mind of the complainant is determinati"e (purely sub5ecti"e

While complainant;s testimony is the only source of direct e"idence as to state of mind, credibility must be assessed,

in li!ht of /++ O&?0C &o such thing as de%ence o% i"plied consentB in seCual assault cases# /here are only two options. theco"plainant consented or did not consent

o be le!ally effecti"e, consent must be freely !i"en% 2% the co"plainant consented, or there is reasonable doubtabout her-non-consent, circu"stances "ight call into uestion what %actors pro"pted her apparent consent (see s *6!(), hich says that no consent is obtained here the “complainant submits or does not resist by reason of6 (athe application of force to the complainant$ ( b threats or fear of the application of force to the complainant$ (c fraud$ or(d exercise of authority

9o, i% established DE1E that the co"plainant did not consent, the actus reus is established (assu"ing there was touching in a seCual "anner, and the touching was ;oluntary)# 2% reasonable doubt as to consent, orestablished that co"plainant acti;ity participated in seCual acti;ity, "ust still consider whether co"plainantconsented because o% %ear, %raud etc# Mens Rea6

he accused mi!ht ha"e an honest belief in consent6 see s 8MB(A, hich the accused need not assert% /ccused

simply has to brin! forard some e"idence to r aise this as a possibility, and the court ha"e to assess the e"idence (and hether this raises a reasonable doubt o"er the "ictim;s state of mind$:6 /ppeal alloed and con"iction entered

1 " 2obidon (-annot consent to t!e intentional application of force to cause !urt or non/serious bodily !arm)FA'/9. /ccused as char!ed ith manslau!hter, throu!h the offence of assault, folloin! a fist fi!ht% 3i!htin! startedinside bar, and the parties a!reed it as not o"er after they ere #ic#ed out%


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1:A9&2&>.

/lthou!h all criminal offences are defined in the Code, that doesn;t mean that the common la no lon!er illuminatesthese definitions, nor !i"es content to the "arious principles of criminal responsibility

he fact that s 8MB(> sets out factors that "itiate consent does not mean that e cannot rely on C+ to ascertain otherones

Where to people en!a!e in a fi!ht by mutual consent, the blos struc# by each constitute an assault on the other,unless there is 5ustifiable self defence (i%e% you cannot consent to the infliction of bodily in5ury, or non-tri"ial bodily harm

he policy of the common la ill not affect the "alidity or effecti"eness of freely !i"en consent to participate in r ou!hsportin! acti"ities, so lon! as the intentional applications of force to hich one consents are ithin the customary normsand rules of the !ame

1 " Cuerrier (+e$elops t!e rules relating to !ow fraud $itiates consent under s 012())FA'/96 he accused as char!ed ith to counts of a!!ra"ated assault pursuant to s% 8M. of the Criminal Code%"en thou!h he had been explicitly instructed, by a public health nurse, to inform all prospecti"e sexual partners that he as I&O-positi"e and to use condoms e"ery time he en!a!ed in sexual intercourse, the accused had unprotected sexualrelations ith the to complainants ithout informin! them he as I&O-positi"e% oth complainants had consented tounprotected sexual intercourse ith the accused, but they testified at trial that if they had #non that he as I&O-positi"ethey ould ne"er ha"e en!a!ed in unprotected intercourse ith him% /t the time of trial, neither complainant had testedpositi"e for the "irus% he trial 5ud!e entered a directed "erdict ac:uittin! the accused% he Court of /ppeal upheld theac:uittals%299:6 Whether a complainant;s consent to en!a!e in unprotected sexual intercourse is "itiated by fraud hen partner

#nos they are I&O positi"e and either fails to disclose or deliberately decei"es her about itH &f the consent isfraudulently obtained, can s 8M. (a!!ra"ated assault be applicableH1:A9&2&>.

&t is not necessary, hen considerin! hether consent is "itiated under s 8MB(> (i%e% consent "itiated by fraud, toconsider hether the fraud relates to the “nature and :uality of the act”$ all that is re:uired is a fraud and a casualconnection beteen that fraud and the submission or failure to resist

What is fraudH &t in"ol"es6 (i ?&SI,(i" dan!erous operation causin! death (s% 8A)(A,(" impaired dri"in! causin! bodily harm (s% 8BB(8, impaired dri"in! causin! death (s% 8BB(>,("i assault causin! bodily harm (s% 8M9(!,("ii a!!ra"ated assault (s% 8M.,("iii sexual assault causin! bodily harm (s% 898(7(c,

(ix a!!ra"ated sexual assault (s% 89>(7, mischief causin! dan!er to life (s% A>K(8 and(x arson causin! bodily harm (s% A>>(!%

- he la on causation, in o"er"ie form, is this6

(7 Causation in"ol"es an analysis into both factual causation (i%e% the medial cause of death and le!alcausation (i%e% hether the accused should be held r esponsible in la (Mene#es6

a% Factual causation$

(i /s there can be more than one cause of death, the causation test is not restrictedto a search for the most proximate, the primary, or the only cause of death ( Mene#es%

(ii 1e!ardless of hether the accused;s conduct is the sole cause, as# as it a materialcauseH he test is this6 “ was the conduct o% the accused a signi%icant contributingcause o% the prohibited conseuenceH”

(iii &f the act of the accused is too re"ote to ha"e caused the result alle!ed, causation is notestablished

(i" &f the tri!!erin! of a chain of e"ents is interrupted by an inter;ening cause, it can ser"eto distance and exonerate the accused (R v %ette% ut an inter"enin! act terminatin! thecausal chain of e"ents may be the ithdraal or abandonment by the accused ofin"ol"ement in the dan!erous enterprise% /he abandon"ent o% conduct re:uires apositi;e co""unication o% notice% he su%%iciency o% the notice is determined by thenature o% the o%%ense and the degree o% the accuseds participation

(" 3actual causation is typically resol"ed by the Pbut %or test

b% &egal causation6

(i his in:uiry concerns hether the accused should be held criminally responsible in lafor that death a moral reaction, a "alue-5ud!ment hether, in the circumstances, a

“blamable” cause ou!ht to be identified (R v %ette%

(ii Causation expresses an element of fault% hat, to!ether ith the re:uisite mental element,is in la sufficient to base criminal responsibility%

(iii 0ote6 there is a hi!her standard of le!al causation to secure a first de!ree murdercon"iction (%ette%

(8 &n the context of homicide, too, the accused;s conduct must be a “si!nificant contributin! cause” of theprohibited act (%ette%



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(> Contributory ne!li!ence does not ne!ate causationLcriminal responsibility (Mene#es(A &mproper medical treatment does not usually brea# the chain of causation6 s 88B Code(B 0ote6 accused must ta#e "ictim as you find them (i%e% the thin s#ull rule (Mene#es

1 " Williams (W!ere -rown cannot pro$e t!at t!e pro!ibited conse3uence occurred& t!e accused cannot becon$icted)

FA'/9. W as I&O positi"e, and en!a!ed in consensual sex ith the complainant, ho later contracted I&O% W #ept

the complainant in the dar# about his disease, despite ha"in! unprotected sex ith her%299:. Whether an accused ho fails to disclose that he has I&O to a complainant ho, at the time of the alle!edassault, could herself ha"e been infected ith I&O, can be con"icted of a!!ra"ated assault% he issue is not ith mensrea, the issue is hether the Cron has been able to pro"e all elements of the actus reus%1:A9&2&>.

/!!ra"ated assault is an offence based on proof of certain conse:uences

he Cron must establish all of the elements of an assault, plus the a!!ra"atin! circumstance (in this case,“endan!ers the life of the complainant”

Section 8M.(7 is only one of a number of Criminal Code pro"isions that “call for a more serious char!e if certainconse:uences follo%

he Cron as unable to pro"e the endan!erment of life, and therefore unable to pro"e e"ery element of the actusreus$:. W ac:uitted on char!e of a!!ra"ated assault

1 " Fene=es (-ausation is a two stage analysis& re3uiring “factual causation” and “legal causation”)FA'/96 o dudes racin!, one dies% ?efence says that the accused ithdre from the race at a material time beforethe accident, and this created a brea# in the causal lin#a!e to the "ictim;s death% ?ude pleads not !uilty to criminalne!li!ence causin! death299:. Whether a person ho sur"i"ed a street race in hich the second participatin! party lost his life can be heldcriminally liable for that death solely based on his co-participatin! in the race1:A9&2&>.Criminal negligence

Criminal ne!li!ence amounts to a anton and rec#less disre!ard for the li"es and safety of others6 Criminal Code's%87)(7%

his is a mar#ed and substantial departure in all of the circumstances from the standard of care of a reasonableperson

&n the context of a dan!erously ne!li!ent act, the mens rea for the offence char!ed is ob5ecti"e foreseeability of theris# of bodily harm hich is neither tri"ial nor transitory

/s is the case ith crimes of sub5ecti"e mens rea' the mens rea for ob5ecti"e foresi!ht of ris#in! harm is normallyinterred from the facts

Dangerous driving

he crime of dan!erous dri"in!, on t he other hand, is established here the prosecution pro"es a mar#ed departurefrom the standard of conduct of a reasonably prudent dri"er in all the circumstances6 Criminal Code' s%8A)(7(a% hebasis of liability for dan!erous dri"in! is ne!li!ence% he :uestion to be as#ed is not hat the accused ob5ecti"elyintended but rather hether, "ieed ob5ecti"ely, the accused exercised the appropriate standard of care(a#ard of Racing

/ death caused as a result of a dri"er;s in"ol"ement in a race on a public street can amount to criminal ne!li!encecausin! death

1acin! on a public roaday resultin! in the death of a passen!er in one of the participatin! motor "ehicles can alsoreasonably be found to constitute dan!erous dri"in!

Where the "ictim is the occupant of a third "ehicle, dan!erous dri"in! may a!ain be the appr opriate resultCausation

/ determination of causation re:uires a findin! that the accused caused the death of another both in %act and in law

FA'/A causation is concerned ith an in:uiry as to ho the "ictim came to his or her death, in a medical,mechanical or physical sense, and ith the contribution of the accused to that result% &n other ords, ere the actions of

the accused beyond ne!li!ibleH Where there are multiple operati"e, independent, and si!nificant contributin! causes,competin! causes need not be sorted out by the trier of fact in an effort to identify a predominant cause 1e!ardless of hether the accused;s conduct is the sole cause, as it a material causeH /:9/6 Was the conduct of the accused a si!nificant contributin! cause of the prohibited conse:uenceH “&f the act

of the accused is too re"ote to ha"e caused the result alle!ed, causation is not established%” +oo# at factsof case

:>AE23=/AD: causation in:uiry concerns hether the accused should be held criminally responsible in la forthat death a moral reaction, a "alue-5ud!ment hether, in the circumstances, a “blamable” cause ou!ht to beidentified (R v %ette% Causation expresses an element of fault% hat, to!ether ith the re:uisite mental element, is in lasufficient to base criminal responsibility%

&n examinin! the traceable ori!in of the chain of e"ents causin! death, may become an issue% &f the act of theaccused is too re"ote to ha"e caused the result alle!ed, causation is not established% &f the accused;s actions are fairly"ieed as only part of the history of the settin! in hich the prohibited result unfolded, ithout more, causation is notpro"en6 R v Cri!!in

&f the tri!!erin! of a chain of e"ents is interrupted by an inter;ening cause, it can ser"e to distance and exoneratethe accused (R v %ette% /n inter"enin! act terminatin! the causal chain of e"ents may be the ithdraal orabandonment by the accused of in"ol"ement in the dan!erous enterprise% /he abandon"ent o% conduct re:uires apositi;e co""unication o% notice% he su%%iciency o% the notice is determined by the nature o% the o%%ense and thedegree o% the accuseds participation

"pplication

Q can be directly responsible for the death of R, if Q and D ere racin!, and D #ills R as a natural result of theracin!Lcriminal ne!li!ent dri"in!% ach dri"er bears e:ual responsibility for its continued lifespan sub5ect to ithdraal orinter"enin! e"ent% /s each dri"er in effect induces the other to dri"e in an unlafully unsafe manner, each is ta#en toassume any conse:uential ris# ob5ecti"ely ithin the ambit of the dan!er created% his surely includes a ris# of bodilyharm or death to a co-principal arisin! out of miscalculation or other 5ud!ment error by that indi"idual in the course of,and related to, pursuin! the 5ointly maintained, and unlafully conducted, dan!erous acti"ity%

F as not criminally ne!li!ent, but as dan!erous dri"in! ( 5ud!e cites the testimony to sho hy, but his dan!erousoperation of the motor "ehicle did 0


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299:. ?etermination of the threshold test of causation that must be met before an accused may be held le!allyresponsible for causin! a "ictim;s death in a char!e of second de!ree murder%1:A9&2&>.

here must be %actual and legal causation% Factual causation is concerned ith an in:uiry about ho the "ictimcam to his or her death% egal causation (hich is referred to as imputable causation is concerned ith the :uestion of hether the accused should be held responsible in la (i%e% the in:uiry is directed at the :uestion of hether the accusedperson should be held criminally responsible for the conse:uences that occurred% &t is informed by le!al considerations

such as the ordin! of the section creatin! the offence and principles of interpretation% hese le!al considerations, inturn, reflect fundamental principles of criminal 5ustice such as the principle that the morally innocent should not bepunished

here is only one standard of causation for homicide offences, includin! second de!ree murder% hat standard maybe expressed usin! different terminolo!y, but it remains the standard expressed by this Court in the case of Smithers,supra (i%e% “more than a tri"ial cause”$ “ si!nificant contribution or cause”

Causation is usually not in issue in 7 st and 8nd de!ree murder cases, but !enerally is in manslau!hter cases'33:&/. /lso, this case deals ith the hi!her standard of responsibility of imputable case (i%e% moralblameorthiness that is re:uired to secure a first de!ree murder con"iction, and illustrates the thin# s#ull rule%

(%) 5missions6+uties

- Some offences don;t re:uire a positi"e act by the accused, but rather can be committed by shoin! that the accused

failed to act, or omitted to act%- o be !uilty of omission6(7 he offence must contemplate !uilt for omissions (based on statutory interpretation(8 he accused must be placed under a le!al duty to act either by the pro"ision char!in! him or y some incorporated pro"ision (see ss 87B-879(> he omission in :uestion must be a failure to fulfil that le!al duty

1 " FooreFA'/9. ?ude runs red ith bi#e, stopped by officer, refuses to !i"e name and address, and char!ed ith unlafullyand ilfully obstructin! a peace officer in the execution of his duty%1:.


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*0 9D:'/2?: 3:&9 1:A

- Sub5ecti"e mens rea is normally !leaned circumstantially, includin! by usin! the common sense inference that personsusually intend the natural conse:uences of their acts- Tse the mens rea pro"ided for in the rele"ant pro"ision, as construed accordin! to rele"ant criminal la principles

- &f an offence specifies the rele"ant state of mind, then only that state of mind ill suffice (e%!% “assault” re:uiresintentional touchin!, and not simply rec#less touchin!- &f a true crime is silent as to the mental state and the offence re:uires a conse:uence, it is implied that “intention” or“rec#lessness” in brin!in! about the conse:uence ill suffice - &n hat follos, the most common mental states areillustrated and identified

(a) ;ntention& and lterior 9ens .ea- he accused must ha"e the "ery intention re:uired by the rele"ant pro"ision

1 " Oander!raff (O intended to thro the ob5ect, but not ma#e contact ith the "ictim, and therefore the “assault” as notintended% he assault pro"ision, s 8MB, re:uires the intentional application of force to the person

1 " Furray (F intended to hold the ernardo tapes, but not for the purpose of ilfully attemptin! to obstruct 5ustice (s7>)(8, and therefore he could not be found !uilty% “Wilfully” constitutes the mens rea - is the act is done for the purposeof obstructin! the course of 5ustice% his is a “specific intent” offence and the onus is on the Cron to pro"e that Furray, hen he secreted the tapes, intended to obstruct the course of 5ustice

1 " 1 (2%S (12S intended to shoot into a cro, ith intent to #ill a human bein! (albeit not the one #illed, openin! thedoor to his possible murder con"iction durin! his upcomin! trial, dependin! on ho the e"idence comes out

(b) #ub%ecti$e 9ens .ea wit! 5b%ecti$e


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Wilful blindness arises here a person ho has become aare of the need for some in:uiry declines to ma#e t hein:uiry because he does not ish to #no the truth%

he culpability in rec.

When the term “#noin!ly” is used in a criminal statute, the reasonable person standard ill not satisfy the mens reare:uirement

Wilfull blindnesss ill fulfil the mens rea re:uirement% Wilfull blindness is imputed #noled!e, hile rec#lessness issomethin! less than that% So, here an offence re:uires J0.)ac*ground

Fanslau!hter is a crime of "enerable linea!e% &t co"ers a ide "ariety of circumstances% o re:uirements areconstant6 () conduct causing the death o% another personG and (*) %ault short o% intention to


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(i /ctus reus6 he accused as dri"in! dan!erously, in li!ht of all the circumstances, hich is hat is re:uired in s 8A)to satisfy the actus reus%(ii Fens rea6 he mental element in dan!erous operation doesn;t re:uire proof of a positi"e state of mind, such as intentor rec#lessness% /nd, indeed, there is no e"idence here of any deliberate intention to create a dan!er for other users ofthe hi!hay that could easily pro"ide an aser to this :uestion% Ience, the trial 5ud!e as correct in findin! that the:uestion of mens rea in this case turns on hether Fr% eatty;s manner of dri"in!, "ieed on an ob5ecti"e basis,constitutes a mar#ed departure from the norm% y contrast, it is my respectful "ie that the Court of /ppeal leaped too

:uic#ly to the conclusion that the re:uisite mens rea could be made out from the simple fact of the accident occurrin!,lea"in! no room for any assessment of Fr% eatty;s conduct alon! the continuum of ne!li!ence%

1 " ?eSousa (+efines t!e elements of t!e offence of unlawfully causing bodily !arm& s 01@)FA'/9. he appellant as in"ol"ed in a fi!ht in hich a bystander as in5ured hen a bottle alle!edly thron by theappellant bro#e a!ainst a all and a !lass fra!ment from the bottle struc# the bystander299:. ?oes s 8M) "iolate s 9 of the CharterH here are to underlyin! issues6 (i the mental element re:uired by s% 8M)and hether this element is constitutionally sufficient and (ii hether s% 9 of the Charter re:uires as a constitutional minimum,foresi!ht of each or any of the conse:uences that comprise the actus reus of an offence%1:A9&2&>.

o be brou!ht ithin the ambit of s 8M), the accused must ha"e committed an(i underlying unlaw%ul o%%ence that is objecti;ely dangerous (i%e% one that is li#ely to sub5ect another

person to dan!er of harm or in5ury and a non-absolute liability offence, and(ii intent to commit the underlyin! offence (part of mens rea

(ii ha"e caused (i%e% for liability to be imposed for unlafully causin! bodily harm, the harm caused mustha"e sufficient causal connection to the underlyin! offence committed) (part of actus reus

(iii bodily har" to another person as a result of committin! that underlyin! offence hich is neithertri"ial nor transitory (part of actus reus

(i" hile ha"in! objecti;e %oresight o% bodily har" (part of mens rea

0ote this bodily harm ill in most cases in"ol"e an act of "iolence done deliberately to another person%

40 :I/:&92&9 F '1232&A 2AD22/

(a) Aiding and Abetting- Can be con"icted for aidin! (physically supportin! or abettin! (encoura!in! the accused to commit the offence- Can be con"icted for not only the offences they intended to aid or abet, but also another offence, pro"ided that it is aforeseeable outcome of the offence they did intend to aid or abet- See '' s *

1 " ?unlop and Syl"ester (9ere presence& and passi$e ac3uiescence& at t!e scene of a crime is not sufficient to ground culpability by way of s 07(b) and (c) aiding and abetting8 #ome A-;VE steps must be taken85WEVE.& presence at t!e commission of an offence -A* be e$idence of aiding or abetting if accompanied byot!er factors suc! as prior knowledge of t!e principal offenderBs intention to commit t!e offence)FA'/9. Complainant raped by 7. men, hile she as bein! held by 8% She pointed to ?unlop and Syl"ester as to ofthe men ho raped her% he 5ud!e chose to instruct the 5ury upon part ies to an offence under s% 87 of the Code' and it isin this respect that the con"ictions are challen!ed%1:A9&2&>.The law

Fere presence, and passi"e ac:uiescence, at the scene of a crime is not sufficient to !round culpability% Someacti"e steps must be ta#en by ord or action%

'resence at the commission of an offence can be e"idence of aidin! and abettin! if accompanied by other factors,such as prior #noled!e of the principal offenderGs intention to commit the offence or attendance for the purpose ofencoura!ement

/ person cannot properly be con"icted of aidin! or abettin! in the commission of acts hich he does not #no may beor are intended%


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(b) 'ounselling- &f the accused counsels another person to commit an offence, and the offence is committed, then s * operates% &f theoffence isn;t committed, then s 464 operates

1 " Iamilton (+efines t!e elements for counselling an offence)FA'/9. I offered for sale throu!h the &nternet access to a credit card number !enerator% Fr% Iamilton as char!edunder s% AMA(a of the Criminal Code, 1%S%C% 7).B, c% C-AM, in four separate counts, ith counsellin! the commission of

indictable offences that ere not in fact committed% he trial 5ud!e as not satisfied that Fr% Iamilton had acted ith there:uisite mens rea, or culpable intent, and she therefore ac:uitted him on all four counts299:. Whether the 2 erred as to the issue of mens rea1:A9&2&>.

he actus reus for counsellin! is the acti"e inducement of the commission of a criminal offence%

he mens rea consists of nothin! less than an accompanyin! intent or conscious disre!ard of the substantial andun5ustified ris# inherent in the counsellin!6 that is, it must be shon that the accused either intended that the offencecounselled be committed, or #noin!ly counselled the commission of the offence hile aare of the un5ustified ris# thatthe offence counselled as in fact li#ely to be committed as a result of the accused;s conduct%

he trial 5ud!e ac:uitted the accused on the count of counsellin! fraud because his moti"ation as mercenary asopposed to male"olent% he trial 5ud!e;s conclusion that the accused did not intend to induce the recipients to use thosenumbers is incompatible ith the plain meanin! of the “teaser” e-mail and ith her other findin!s of fact, includin! herfindin! that the accused understood that the use of the !enerated numbers as ille!al% Ier assertion that “[h]ismoti"ation as monetary” immediately after her reference to these facts demonstrates an error of la as to the mens reafor counsellin! the commission of a crime, and arrants a ne trial%$:. he trial 5ud!e confounded “moti"e” and “intent”, and I should be found !uilty of the offence

(c) 'orporate and Association iability

- 9ee ss **#, **#*- Corporations are liable for the acts of their a!ents for strict and absolute liability offences% Since these #inds ofoffences turn on the actus reus alone, there is no need to use any legal de;ises to ascribe "ens rea to thecorporation and so the Criminal Code corporate liability pro"isions do 0 of the Code & am then of the "ie t hat the mens rea for an attempted murder cannot be less than the

specific intent to #ill% F1 for attempted murder is the specific intent to #ill% /n attempt to murder, aimed at the completion of the full crime ofmurder, should not ha"e an intent lesser than that of murder

Fental state fallin! short of that le"el may ell lead to con"iction for other offences, for example, one or otherof the "arious a!!ra"ated assaults, but not to a con"iction for an attempt at murder%$:. 0e trial ordered

1 " ?eustch (#ets out !ow to distinguis! between attempts and mere preparation& w!ic! does not constitute anattempt focussing on t!e actus reus of an attempt)



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FA'/9. /ccused char!ed ith attemptin! to procure female persons to ha"e illicit sexual intercourse ith anotherperson% he accused posted ads for a secretaryLsales assistant% hree omen and a policeoman testified that theaccused indicated that the 5ob re:uired sexual intercourse ith clients to conclude contracts% 4enerous salary UUU aspromised% rial 5ud!e ac:uitted on the basis that his acts did not !o far enou!h because he had not offered the 5ob to the oman%299:. Io to distin!uish beteen an attempt and mere preparation1:A9&2&>.

here is no clear line beteen attempt and preparation%

he difference beteen attempt and preparation is :ualitati"e, in"ol"in! the relationship beteen the nature and :ualityof the act in :uestion and the nature of the complete offence

# e%ine the nature o% the actus reus o% co"pleted o%%ence# *# 'onsider %actors o% proCi"ity (how close was the co"pleted o%%enceJ). /i"e, location, and acts under thecontrol o% the accused#$:. he accused is !uilty of attemptin!% & a!ree ith the Court of /ppeal that if the appellant had the necessary intent toinduce or persuade the omen to see# employment that ould re:uire them to ha"e sexual intercourse ith prospecti"eclients then the holdin! out of the lar!e financial reards in the course of the inter"ies, in hich the necessity of ha"in! sexual

intercourse ith prospecti"e clients as disclosed, could constitute the actus reus of an attempt to procure. /here would be

little else that the appellant would be reuired to do towards the co"pletion o% the o%%ence other than to "a


12/34


13/34


FA'/9. C%C%C% (>d 8.), 8A ?%+%1%(Ath B>M, [7).B] 8 S%C%1% A.M, the Supreme Court of Canada held that the combination of absolute liability andthe potential penalty o% i"prison"ent as a "iolation of s% 9 of the Charter

o a"oid a "iolation of s%9 of the Charter , [the impu!ned pro"ision] must be treated as creatin! a strict liabilityoffence% he defence of due dili!ence as a"ailable to the respondents%

+e"is (City " ereault (;llustration of due diligence defence failing)FA'/9. 1espondent con"icted of motor "ehicle related offences under the Ii!hay Safety Code (namely ha"in! put amotor "ehicle into operation Lout ha"in! paid re!istration fees% he postal ser"ice did not deli"er the notice ofre!istration reneal, hich it returned to the S// on 3ebruary 7A, 8KK8% &n /pril 8KK8, the police stopped the "ehicleand obser"ed that its re!istration had expired due to a failure to pay the fees for the year in pro!ress and had not beenreneed% / complaint as then brou!ht a!ainst the company, and it is in issue here%299:. What type of offence is thisH Should the con"iction standH1:A9&2&>.

he offences ith hich the respondents are char!ed belon! to a "ast cate!ory of offences #non as re!ulatoryoffences

Classifyin! the offence in one of the three cate!ories no reco!ni=ed in the case la thus becomes a :uestion ofstatutory interpretation

?ic#son 2% noted that re!ulatory or public elfare offences usually fall into the cate!ory of strict liability offences ratherthan that of mens rea offences% /s a !eneral rule, in accordance ith the common la rule that criminal liability ordinarilypresupposes the existence of fault, they are presumed to belon! to the intermediate cate!ory (strict liability

/bsolute liability offences still exist, but they ha"e become an exception re:uirin! clear proof of le!islati"e intent$ hisintent can be deduced from "arious factors, the most important of hich ould appear to be the ordin! of the statuteitself6 “he o"erall re!ulatory pattern adopted by the +e!islature, the sub5ect matter of the le!islation, the importance ofthe penalty, and the precision of the lan!ua!e used ill be primary considerations % % % %”

0


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0ote6 &f a re!ulatory offence is intended by 'arliamentL+e!islature to be one of absolute liability, and thatoffence has as a potential punishment imprisonment, then a court must interpret the offence to be one of strictliability to ma#e it conform to the Charter ( R v Cancoil Thermal

9/:= *. 9hould the accused be con$icted o% the o%%enceJ

() &f the offence is one of6

a% Strict lia!ilit- 6 hen the proof of the act prima facie imports the offence, but the accused may a"oid liabilityby pro"in! that he too# all reasonable care (i%e% the defence of due dili!ence% hat is, the prosecution mustpro"e the act L1L?, and the accused can attempt t o pro"e the due dili!ence defence on a o'%[/''+D I 3/CS < ?1F&0 &3 Q &S C


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order to support a defence of mental disorder, of course, the disease "ust be o% such intensity that it renders theaccused incapable o% appreciating the nature and uality o% the ;iolent act or o% : of nature and :ualify of an act does not e:ual A==1:'2A/2

e#g#. a .

What is meant by the phrase @#noin! that [the act] as ron!@ in s% 7M(7H ?oes it refer only to abstract #noled!e thatthe act of #illin! ould be "ieed as ron! by societyH


16/34


he accused in the case at bar accepted societyGs "ies on ri!ht and ron!% he su!!estion is that, acceptin! those"ies, he as unable because of his delusion to percei"e that his act of #illin! as ron! in the particular circumstances of thecase%$:. 0e trial ordered

*0 ?&/A1 A'/9 &:>A/2?2&>B /$: A'/9 1:9 A& A/3A/293

- he accused doesn;t satisfy the actus reus re:uirement unless his act is illed% / sophisticated application of the"oluntariness concept as employed in 1 " Saby%

1 " Saby (An ot!erwise criminal act cannot be said to be $oluntary unless t!e person is gi$en reasonable timeto a$oid committing t!e act)FA'/9. he appellant faced to sets of char!es% Ie as char!ed ith possession of an unre!istered restricted eapon, possession of prohibited ammunition, possession of a eapon for a purpose dan!erous to the public peace,bein! an occupant of a motor "ehicle #noin! there as present a restricted eapon for hich no occupant held a permitpermittin! possession, and possession of a firearm ith serial number defaced% he Cron;s case lar!ely rested on thee"idence of 2ohnson% Ie testified that the !un belon!ed to the appellant% 2ohnson denied any #noled!e of itsexistence until the to ere in the appellant;s car% Ie sore that as they ere dri"in!, the appellant became alarmed bythe attention of the police% he appellant told 2ohnson that he had a !un% he appellant stopped the "ehicle, handed2ohnson the !un, and instructed him to dispose of it in a bac#yard%299:. ?id the trial 5ud!e err in his anser to 5ury :uestions relatin! to the occupant of motor "ehicle char!eH

1:A9&2&> he trial 5ud!e erred in failin! to !i"e the 5ury a more complete anser to the :uestions it posed% o establish !uilt on this count, the Cron had t o pro"e the coincidence of the to essential elements of the offenceas defined by s% )7(>, namely occupancy o% the ;ehicle and the appellants .>ackground

nly those %ound to be acting with the reuired ;oluntariness should be con;icted o% a cri"e# Auto"atis",although spo


17/34


Ioe"er, because the medical e"idence in each case impacts at se"eral sta!es of the policy in:uiry and is si!nificant in itson ri!ht, sleepal#in! in a different case on different e"idence mi!ht be found to be a disease of the mind%

1 " Stone (4eading case on t!e automatism defence)FA'/9. S and ife had conflicts in relationship%


18/34


(A) &f the trial 5ud!e concludes that the condition the accused claims to ha"e suffered from is not a disease of the mind,only the defence of non-mental disorder automatism ill be left ith the trier of fact as the trial 5ud!e ill ha"e alreadyfound that there is e"idence upon hich a properly instructed 5ury could find that the accused acted in"oluntarily% he:uestion for the trier of fact ill then be hether the defence has pro"en, on a balance of probabilities that the accusedacted in"oluntarily% / positi"e anser to this :uestion by the trier of fact ill result in an absolute ac:uittal

(>) &f the trial 5ud!e concludes that the alle!ed condition is a disease of the mind, only mental disorder automatism illbe left ith the trier of fact% he case ill then proceed li#e any other s% 7M case, lea"in! for the trier of fact the :uestionof hether the defence has pro"en, on a balance of probabilities, that the accused suffered from a mental disorder hichrendered him or her incapable of appreciatin! the nature and :uality of the act in :uestion

$:. he trial 5ud!e had found that only the non-insane automatism defence applied$ hoe"er, the tri!!erin! effect forStone as not somethin! that ould reasonably be expected from a normal person% Conse:uently, his defence shouldfail (note, hoe"er, that the SCC did not doubt that a more se"ere psycholo!ical blo could induce a normal person intoan automatistic state'33:&/. (i 1emember that one need not be asleep to achie"e a state of automatism% / person ho is aa#e andsane may suffer a “psycholo!ical blo”$ (ii Fa5ority too# 5udicial notice that it ill only be in rare cases that automatism isnot caused by mental disorder%

1 " 3ontaine (Gualifies t!e #tone test in some ways)FA'/9. he accused or#ed as a !ara!e mechanic% Ie recei"ed a call from 1, a dis!runtled former employee, hosaid, “We;re comin! to !et you, pi!s%” he accused later heard from a co-or#er that the "ictim had been offered a

contract to #ill both of them% 3eelin! that he as bein! atched and folloed, the accused purchased a firearm% .

Stone case is a bit o"er=ealous in its attempt to almost ma#e non-mental disorder automatism impossible to ar!ue%

Stone can no lon!er be read that ay in "ie of the Court;s subse:uent decisions, particularly R v "rcuri , and R v

Cinous% &n the case of “re"erse onus” def ences, such as automatism, it is the accused ho bears the persuasi"e and thee"idential burdens% 1e;erse onus de%ences will there%ore go to the jury (be i n play) where there is any e;idenceupon which a properly instructed jury, acting judicially, could reasonably decide the issue (air o% reality)

5here "ental disorder auto"atis" is raised as a de%ence, an assertion o% in;oluntariness on the part o% t heaccused, supported by the logically probati;e opinion o% a uali%ied eCpert, will nor"ally pro;ideQas it did inthis caseQa su%%icient e;identiary %oundation %or putting the de%ence to the jury#

So, for step 7 of the automatism defence analysis, the “air of reality” test must be met

3urther, there is to be no ei!hin! of the factors hich ere su!!ested in Stone (this can be left for the 5ury to do(i%e% may apply those factors outlined in Stone at step 7, at step > by the trier of fact

'33:&/. Compare re"erse onus defences, li#e automatism, ith “ordinary” defences, here the accused has nopersuasi"e burden at all%


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o Consider li#elihood of tri!!ers occurrin!

(c) Fay consider other “policy %actors”

• here may be cases in hich consideration of the internal cause and

continuin! dan!er factors alone does not permit a conclusi"e anser to thedisease of the mind :uestion$ e%!%, here the internal cause factor is not

helpful because it is impossible to classify the alle!ed cause of theautomatism as internal or external, and the continuin! dan!er factor isinconclusi"e because there is no continuin! dan!er of "iolence%

• 'olicy concerns assist trial 5ud!es in anserin! the fundamental :uestion of

mixed la and fact hich is at the centre of the disease of the mind in:uiry6 hether society re:uires protection from the accused and, conse:uently, hether the accused should be sub5ect to e"aluation under the re!imecontained in 'art QQ%7 of the Code%

• 'olicy considerations include6

o 1eputation of administration of 5ustice

o ase of fei!nin! (fa#in!

o 3lood!ates potentiality

o nsurin! public safety

9/:= (). A;ailable de%ences %or trier o% %act to consider

(a) &on-insane auto"atis"J &f the trial 5ud!e concludes that the condition the accused claims to ha"e suffered from isnot a disease of the mind, only the defence of non-mental disorder automatism ill be left ith the trier of fact as the trial 5ud!e ill ha"e already found that there is e"idence upon hich a properly instructed 5ury could find that the accusedacted in"oluntarily% he :uestion for the trier of fact ill then be hether the defence has pro"en, on a balance ofprobabilities that the accused acted in"oluntarily% / positi"e anser to this :uestion by the trier of fact ill result in anabsolute ac:uittal Iere, 5ury may be instructed to consider thin!s such as6

5hether there is a "oti;e %or cri"e P ie, / moti"eless act ill !enerally lendplausibility to an accused;s claim of in"oluntariness

9e;erity o% triggering sti"ulus

'orroborating e;idence o% bystanders

'orroborating "edical history 5hether the trigger is the ;icti"

(b) 2nsane auto"atis"J &f the trial 5ud!e concludes that the alle!ed condition is a disease of the mind, only mentaldisorder automatism ill be left ith the trier of fact% he case ill then proceed li#e any other s% 7M case, lea"in! for thetrier of fact the :uestion of hether the defence has pro"en, on a balance of probabilities, that the accused suffered froma mental disorder hich rendered him or her incapable of appreciatin! the nature and :uality of the act in :uestion / successful defence of mental disorder automatism ill result in a "erdict of not criminally responsible on accountof mental disorder as dictated by s% M98%>A of the Code% Tnder s% M98%BA, an accused ho recei"es this :ualifiedac:uittal may be dischar!ed absolutely, dischar!ed conditionally or detained in a hospital$

0 2&/I2'A/2&

- 1emember that the defence applies to both dru!s and alcohol- he applicability of the intoxication defence, as shon belo, turns on hether an offence is one of >:&:1A or9=:'2F2' 2&/:&/

4eneral &ntention >

>% brea# enter and commit >% brea# enter L intent tocommit

(s >A.(7(a (s >A.(7(b

A% sexual assault (rape A% touchin! for a sexual purpose(s 897 (s 7B7

B% manslau!hter B% murder

M% theft

9% attempted assault, brea# andenter, sexual assault, etc%

(a) #imple ;ntoxication

- Simple intoxication “defence” operates only if proof of intoxication helps lea"e the 5ud!e or 5ury in reasonable doubt o"er hether the accused form the rele"ant mens rea (so it actually isn;t really a defence- hus, the “defence” only applies if intoxication pre"ents the formation of the specific intent re:uired by the rele"antsection- 0ication===



20/34


not !uilty of a specific intent offence on the account of intoxication, you can still be con"icted of an included !eneral intentoffence (e%!% murder Z manslau!hter, e%!% assault ith intent Z assault- See 1 " ?a"iault belo for a distinction beteen !eneral and specific intent offences

1 " ernard (#exual assault causing bodily !arm is a general intent offence& and t!erefore simple intoxicationdoesnBt work as a defence)

FA'/9. char!ed L sexual assault causin! bodily harm (s 8AM%8(c% committed the sexual assault upon theei!hteen-year-old complainant in his apartment% &t as conceded that intercourse had ta#en place ithout the consent of thecomplainant% ?urin! the course of the assault, the appellant punched her, caused an in5ury to her eye, and threatened to #illher%299:. he intoxication defence$ distin!uishin! beteen !eneral and specific intent crimes1:A9&2&>.

Sexual assault merely adds the re:uirement of causin! bodily harm to complainant% 1esultin! interference L physicalinte!rity of the complainant a!!ra"ates the seriousness of a sexual assault but the mental element remains the same%/here%ore its a general intent o%%ence (i%e% the mental element is the intent to commit the assault

>eneral intent. offence in hich the only intent in"ol"ed relates solely to the performance of the act in :uestion L nofurther ulterior intent or purpose%

9peci%ic intent. in"ol"es the performance of the actus reus, coupled L an intent or purpose !oin! beyond the mereperformance of the :uestioned act (e%!% assault ith the intent to maim or ound

?run#enness in a !eneral sense is not a true defence to a criminal act% Where, hoe"er, in a case hich in"ol"es a crimeof specific intent, the accused is so affected by intoxication that he lac#s the capacity to form the specific intent re:uired tocommit the crime char!ed it may apply% /he de%ence, howe;er, has no application in o%%ences o% general intent#

3or general intent offences simple intoxication does not or# because6o / person is presumed to ha"e intended the natural and probable conse:uences of his actions%

o &n cases here accused as so intoxicated as to raise doubt as to the "oluntary nature of his

conduct, Cron may meet this e"identiary obli!ation respectin! the necessary blameorthy mentalstate of the accused by pro"in! the fact of "oluntary self-induced intoxication by dru!s or alcohol%

o /he rec.



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5here intoCication is so eCtre"e an essential ele"ent o% t he o%%ence, ;oluntariness, is not present% Can;t holdsomeone morally at fault L absence of "oluntariness%

Court held & had to be accepted bLc of Charter - s% 77 (d presumes indi"iduals to be innocent, s% 9 contrary to '32 tocommit someone if they didn;t "oluntary commit somethin!%

/o use de%ence o% :2, you need.o # :Cpert e;idence (that the accused was in a state o% auto"atis" or insanity)

o *# Accused "ust pro;e, with that eCpert e;idence alongside any other e;idence that, on a

D=, he was in an eCt re"e state o% intoCication 4i"en the minimal nature of the mental element re:uired for crimes of !eneral intent, e"en those ho are si!nificantlydrun# ill usually be able to form the re:uisite mens rea and ill be found to ha"e acted "oluntarily%

0ote6 Should it be thou!ht that the mental element in"ol"ed relates to the actus reus rather than the mens rea then theresult must be the same% he actus reus re:uires that the prohibited criminal act be performed "oluntarily as a illed act% /person in a state of automatism cannot perform a "oluntary illed act since the automatism has depri"ed the person of theability to carry out such an act%

0ote6 'ourt noted that this de%ence would only be a;ailable in rare cases, essentially where the accused was anauto"aton

D/ see s8 87 of --:

• xtreme intoxication is 0A(8 is meant toapply to accused persons ho intend to #ill or cause !rie"ous bodily harm, as ell as to those ho do not ha"e suchintent, but ho do in fact cause death or !rie"ous bodily harm;ssue

/ &n order for the appellant to succeed on s% >A(8, it as necessary that the 5ury belie"e or ha"e a reasonable doubt thatat the time of the shootin!s, the appellant !enuinely belie"ed on reasonable !rounds, that he as in !ra"e dan!er fromthe "iolence ith hich 1oss and 4ill pursued their attac# upon him, and that his use of deadly force in response to thatattac# as necessary% ac#!round information about the attac#ers; propensity for "iolence is rele"ant here%

1 " Cinous (#!ows !ow t!e defence in s '(0) !as sub%ecti$e and ob%ecti$e elements)FA'/9. C heard that F and D anted to #ill him% F and D, one day, as#ed C to assist in a computer theft% When theymet up, F and D ere actin! suspicious$ F as earin! latex !lo"es, and they #ept touchin! their 5ac#ets li#e they had a!un it% While dri"in!, C pulled o"er to !as station, pulled out !un and shot F in bac# of head% C testified that this as aninstincti"e reaction to a situation of dan!er%299:. &nterpretation of self defence under s >A(81:A9&2&>.Elements of t!e defence

o succeed in a defence of self-defence, there must be6

he eCistence o% an assault (did the accused reasonably and actually belie"e that sLhe as unlafully assaultedH

1easonable apprehension o% death or grie;ous bodily har"%

1easonable belie% in the absence o% alternati;es to D$ (&t mustbe established both that the accused belie"ed that he could not preser"e himself exceptby shootin! the "ictim, and that he held this belief on reasonable !rounds

0ote6 if any of these elements lac# an air of reality, the defence should not be put to the 5ury

ach of the three elements ha"e both a sub5ecti"e and ob5ecti"e component% hese three elements must be real aspercei;ed by the accused (sub5ecti"e and be reasonable (ob5ecti"e%

o 5ith respect to each o% the three ele"ents, the approach is %irst to inuire about the

subjecti;e perceptions o% the accused, and then to as< whether those perceptions wereobjecti;ely reasonable in the circu"stances#

o he “hole defence” must ha"e an air o% reality and bac Criminals cannot claim self-defence ifthey a"oid an alternati"e fearin! that the alternati"e ould face them ith arrest%

Application

Tnlaful assaultH &t ould be possible for the 5ury reasonably to conclude that the accused belie"ed that he as!oin! to be attac#ed, and that this belief as reasonable in the circumstances% here is an air of reality to the sub5ecti"ecomponent of the defence as there is direct e"idence on the accused;s beliefs, in the form of the accused;s testimony% / 5ury actin! reasonably could dra an inference from the circumstances described by the accused, includin! particularly



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the many threatenin! indicators to hich he testified, to the reasonableness of his perception that he as !oin! to beattac#ed%

1easonable apprehension of death or 4IH Des% he accused;s testimony is unambi!uously to the effect that hefeared a deadly attac#% / 5ury actin! reasonably could dra an inference from the circumstances described by theaccused, includin! particularly the indications that D and F ere ar med, the rumours of a plan to assassinate him, thesuspicious beha"iour, and the earin! of the !lo"es, to the reasonableness of his perception that he as in mortaldan!er

1easonable belief of no reasonable alternati"es to #illin!H &t must be established both that the accused belie"ed thathe could not preser"e himself except by shootin! the "ictim, and that he held this belief on reasonable !rounds% here isan air of reality to the accused;s claim t hat, at the time he shot the "ictim, he actually belie"ed that he had no alternati"e%he accused;s extensi"e direct testimony re!ardin! his sub5ecti"e perceptions at the r ele"ant time amounts to more thana “mere assertion” of the element of the defence% Ioe"er, the belief that the accused had no other option but to #illmust ha"e been ob5ecti"ely reasonable% Iere, there is absolutely no e"idence from hich a 5ury could reasonably inferthe reasonableness of a belief in the absence of alternati"es

KK 9u""ary o% the 9el% e%ence =ro;isions KK

9 4().

/pplies here there is an unlaw%ul assault a!ainst the accused his unpro;oD$ from the

"iolence ith hich the ori!inal assault as made$ and(b Ie belie;es, on reasonable, grounds, that there are no alternati;es to


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5hat standard to e"ployJ 3or the first 8 of the > elements, a modified ob5ecti"e test is employed (i%e% &t in"ol"esan ob5ecti"e e"aluation, but one that ta#es into account the situation and characteristics of the particular accused person,includin! his ability to percei"e the existence of alternati"e courses of action% he third re:uirement for the defence ofnecessity, proportionality, must be measured on an ob5ecti"e standard, as it ould "iolate fundamental principles of thecriminal la to do otherise$:. he trial 5ud!e as correct to remo"e the defence from the 5ury since there as no air of reality to any of thethree re:uirements for necessity

60 1:99

- he defence is a"ailable under s 7 '', and at common la% Section 79 identified a limited defence, but the commonla and Charter ha"e extended its application6

1 " IibbertFA'/9. I accompanied F at the time F shot 3% I as punched in the face by F as a ay of forcin! I to help him find3% I helped !et F don from his apartment here he as subse:uently shot1:A9&2&>.

s 79 of the Code does not constitute an exhausti"e codification of the la of duress% S 79 applies only to persons ho commit offences as '1&0C&'/+S% he common la defence applies to persons liable as parties

he fact that a person ho commits a criminal act does so as a result of threats of death or bodily harm can, in someinstances, be rele"ant to the :uestion of hether he possessed the mens rea necessary to commit an offence% Whether or notthis is so ill depend, amon! other thin!s, on the structure of the particular offence in :uestion -- that is, on hether or not the

mental state specified by 'arliament in its definition of the offence is such that the presence of coercion can, as a matter oflo!ic, ha"e a bearin! on the existence of mens rea% &f the offence is one here the presence of duress is of potential rele"anceto the existence of mens rea, the accused is entitled to point to the presence of threats hen ar!uin! that the Cron has notpro"en beyond a reasonable doubt that he possessed the mental state re:uired for liability%

A person who co""its a cri"inal act under threats o% death or bodily har" "ay also be able to in;oM.of the Criminal Code% he accused admitted ha"in! committed both offences but claimed that she as then actin! underduress and should thus be relie"ed from any criminal liability% She testified that a man in el!rade, here she li"ed in anapartment ith her mother, had threatened to harm her mother unless she brou!ht the heroin to Canada% She also saidthat she did not see# police protection because she belie"ed the police in el!rade ere corrupt and ould do nothin! toassist her% he accused conceded that her claim of duress did not meet the immediacy and presence re:uirements of s%

79 of the Code, hich pro"ides a defence for a per son “ho commits an offence under compulsion by threats ofimmediate death or bodily harm from a person ho is present hen the offence is committed”% She successfullychallen!ed the constitutionality of s% 79 under s% 9 of the Canadian Charter of Rights and Freedoms, raised the commonla defence of duress and as ac:uitted% he Cron appealed the ac:uittal on the char!e of importin! heroin, but theCourt of /ppeal dismissed the appeal%299:. Scope and constititutionality of the defence of duress1:A9&2&>.

Section 79 of the Code breaches s% 9 of the Charter because it allos indi"iduals ho acted in"oluntarily to bedeclared criminally liable% he section limits the defence of duress to a person ho is compelled to commit an offenceunder threats of immediate death or bodily harm from a person ho is present hen the offence is committed% he plainmeanin! of s% 79 is :uite restricti"e in scope% he phrase “present hen the offence is committed”, coupled ith theimmediacy criterion, indicates that the person issuin! the threat must be either at the scene of the crime or at hate"erother location is necessary to ma#e !ood on the threat ithout delay should the accused resist% 'ractically spea#in!, athreat of harm ill seldom :ualify as immediate if the threatener is not physically present at the scene of the crime% heimmediacy and presence re:uirements, ta#en to!ether, clearly preclude threats of future harm% While s% 79 may capturethreats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relyin! on thedefence in hosta!e or other third party situations% he underinclusi"eness of s% 79 infrin!es s% 9 of the Charter % heCron made no attempt before this Court to 5ustify the immediacy and presence criteria accordin! to the s% 7 analysisand has therefore failed to satisfy its onus under s% 7% &n any e"ent, the criteria ould li#ely not meet the proportionalitybranch of the s% 7 analysis% &n particular, these re:uirements seemin!ly do not minimally impair the accused;s s% 9 ri!hts%

he common la defence of duress as ne"er completely superseded by s% 79 of the Code, and remains a"ailable toparties to an offence

he common la defence of duress frees itself from the constraints of “immediacy” and “presence”% he elementsinclude6

(7 / threat to the inte!rity of the person6 he la includes a re:uirement of proportionality beteen the threatand the criminal act to be executed% he accused should be expcted to demonstrate some fortitude to put upa normal resistance to the threat(8 he threat must depri"e the accused of any safe a"enue of escape in the eyes of a reasonable person,similarly situated% /lthou!h the threat need not be immediate, there must be a close temporal connectionbeteen the threat and the harm threatened (i%e% the threat had to be a real threat affectin! the accused at thetime of the offence (no immediacy re:uirement(> hreats need not be made by a person ho is at the scene of the crime (no presence re:uirement

/ modified ob5ecti"e test is employed

70 =1?'A/2&

- See s 8>8



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'1232&A =1':1:

/$: '$A1>:

0 A2&> /$: '$A1>:

- 0o person may be considered an accused in the absence of a char!e and, therefore, no court can ha"e 5urisdictiono"er the prosecution of a person in the absence of a char!e- With the exception of direct indictments, indictable offences are char!ed hen an information is sorn, recei"ed, andappro"ed by a 5udicial officer in accordance ith sections BKA and folloin! of the CC [his procedure applies e:ually tooffences prosecuted by summary proceedin!s under 'art QQO&& CC$ see s 9)B]- s !+4 (non-discretionary, "inisterial %unction). 2ustice must recei"e the information here6

(i “any person” ho has reasonable !rounds to belie"e an offence has been committed$(ii under oath, lays an information in ritin!$ /0?(iii the information alle!es a number of re:uired thin!s

- s !+66 /n information may be laid in the manner set out in 3orm 8

- s !+7 (substance o% in%or"ation considered)6 &2F2'A&': F /$: '$A1>:



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- he accused is in 5eopardy of con"iction only for the offence char!ed, and for any offences that are included” in thecriminal char!e, but nothin! more6

1 " 4%1%FA'/9. 41 ac:uitted of the char!e of incest%299:. Whether the rules !o"ernin! “included” offences under s MM8 of the Criminal Code can be applied t o 5ustify theresult in this case of the respondent bein! found !uilty of sexual assaultLsexual interference, but bein! ac:uitted of t he

char!e of incest1:A9&2&>.

2t is %unda"ental to a %air trail that an accused :

?oinder and Severance- Can ha"e a 5oinder and se"erance of char!es

Content of Charges- Fust be sufficiently detailed6 s B.7(>%- he purpose is of each count in an indictment is to put the accused on notice of the case to meet- here are to interrelated rules6 s B.7(> (insufficient detail and the surplusa!e rule (excessi"e detail

Remedies for a Defective Charge- > possibilities6

(7 So flaed that the char!e is an absolute nullity6 he 2 has no 5urisdiction to hear the matter, and thechar!e must be :uashed% ut the Cron can lay a ne char!e(8 Char!e mi!ht be flaed, but not so flaed that it is a nullity6 2 is to /F0? the char!e% 4rant anad5ournment in order to remedy the pre5udice [0ote6 a char!e ill only be :uashed if the pre5udice caused bythe amendin! cannot be remedied by an ad5ournment](> he remedies set out in s MK7

- /ccused may also see# particulars

/$: A?:19A12A =1'::2&>

0 /$: A?:19A12A =1':99

(a The presumption of innocence and the ultimate standard of proof - /n accused is presumed to be innocent6 s 77(d Charter% he Cron must pro"e !uilt 1?6

1 " +ifchus6 1? does not in"ol"e proof to an absolute certainty$ it is not proof beyond any doubt nor is it an ima!inaryor fri"olous doubt% Fore is re:uired than proof that the accused is probably !uilty% &t must not be based upon sympathyor pre5udice% 1ather, it is based on common sense$ it is lo!ically deri"ed from the e"idence or absence of e"idence% / 5ury char!e that includes these considerations ill be a "alid one% here is no ma!ic incantation

(b .ther !urdens- =ri"a %acie case6 3or directed "erdicts, and to be able to pass throu!h the preliminary in:uiry sta!e, the defenceand the Cron, respecti"ely, must sho that there is a prima facie case% he test is hether there is any e"idence upon hich a reasonable trier of fact, properly instructed, could con"ict (/rcuri% &n /rcuri, a complicated situation arose,because the e"idence as entirely circumstantial% he test (abo"e applies in this context as ell% ut the nature of the 5ud!e;s ta#es "aries accordin! to the type of e"idence that the Cron has ad"anced%

3or circumstantial e"idence, the 5ud!e is re:uired to determine hat reasonable inferences can be made (i%e% hetherelements of offence may be reasonably inferred from e"idence% his re:uires limited ei!hin!, i%e%, not entitled to as# hether accused is !uilty% he 5ud!e only as#s hether the e"idence, &3 +&O?, could reasonably support an

inference of !uilt

- :;idential burden %or putting %orward de%ences 6 1 " Cinous (;n criminal cases& t!e accused may !a$e ane$idential burden w!ere s!e seeks to rely upon positi$e defences& like self defence, “air of reality test” 6he correct approach to the air of reality test is ell established6 the test is hether there is e"idence on the record upon hich a properly instructed 5ury actin! reasonably could ac:uit (assumin! the e"idence to be true$ in other ords, adefence should be put to a 5ury if and only if there is an e"idential foundation for it% Whether there is an air of reality to adefence is a :uestion of la% /wo principles deri"e from this test6 () a 5ud!e must put to the 5ury all defences that arise on the facts hich ha"e anair of reality (*) they must #eep from the 5ury defences lac#in! an e"idential foundation%

&n applyin! the test, loo# at the totality of the e"idence, and the purpose is not aimed at establishin! the substanti"eelements of the defence

1 " 3ontaine ("utting in play “re$erse onus” defences %ust re3uires e$idential& not persuasi$e burden) 6 &n Stone,

it appeared that the accused needed to dischar!e a persuasi"e burden before the 5ury could e"en hear the defence ofnon-mental disorder automatism% &n 3ontaine, the Court altered this% &t as held that all the accused has to do is putforard S


26/34


le!al rule raisin! the presumption ill use the term “e"idence to the contrary” to describe the burden of rebuttal% /presumption ill be interpreted as a mandatory pr esumption here it fails to set out the re:uired standard of rebuttal%


27/34


- 9tatutory powers include poers alloin! police to6 arrest an accused$ compel an accused;s appearance in court "ia asummons or appearance notice$ use force$ search suspects$ etc [0ote6 the important ones are co"ered in the upcomin!sections]- 'o""on law poers6(7 Iistorical cLl poers6

a% Search incident to arrest for the purposes of ensurin! safety$ protection of e"idence from destruction, anddisco"ery of e"idence (R v Casla*e% hen, see R v @olden for strip searches incident to arrest, and theparticular re:uirements that must be met (p 7M

b% o enter into a pri"ate dellin! in a hot pursuit (alloed leadin! case is 1 " 3eeney

(8 0e cLl poers can be created the “ancillary poers” doctrine (see 1 " Waterfield (p 796 he SCC has relied onthis doctrine to support police poer in a number of areas% here are problems ith relyin! on this test, thou!h, as it asnot intended to allo the creation of ne C+ poers%(> Consent (a final area from hich police de"elop their poers(A ?efault common la poers6 'olice ha"e the poer to do anythin! that ill not result in some remedy bein! !rantedto an accused

Powers of search and sei#ure-


28/34


i%e%, you ould ha"e to establish that6 the arrest as laful$ the search as truly incidental to that arrest and that the search as conducted in areasonable manner

(iii ConsentH(b &s the la itself reasonableH(c &s the manner in hich the search is carried out reasonableH

- 0


29/34


[9upporting powers0 - Tse of force permitted in certain circumstances (s 8B(7$ use of force li#ely to cause death or 4I permitted in certaincircumstances (s 8B(A$ special rules apply hen enterin! a home to ma#e an arrest (s B8) etc- %!% officer is 5ustified in usin! as much force as necessary hen ma#in! an arrest, pro"ided that there is reasonable!rounds to use that much force

Rights arising on arrest (7 Statutory protections6

- s 4H7 calls for officer ho has arrested a per son for one of the offences listed in s 4H!(*)(a), (b) or (c) (basically lessserious, summary con"iction or hybrid con"iction offences to release that per son on an appearance notice or summons,unless !rounds similar to those in sections 4H!(*)(d) or (e) apply (i%e% belie"es that need to !et &?$ secure e"idence$ on;t sho in court etc- Where the offender is 0

- Where an indi"idual is arrested, he or she must be released or !i"en a bail hearin! here it ill be decided hether theindi"idual should be released absolutely, sub5ected to conditions of release, or held in custody pendin! the trial

@eneral scheme$ Release !- 9ustice- /ssumption that accused should be released pendin! trial and ith fe restrictions as possible- s !!() directs that the 5ustice shall order that the accused is released on an underta#in! ithout conditions T0+SSthe Cro shos cause as to hy somethin! more restricti"e is 5ustified

- s !!(*)6 Where a 5ud!e doesn;t order an outri!ht release under s B7B, he shall, T0+SS I C1


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- s !!(6). +ists a number of types of indictable offences hich lead to a re"erse onus i%e% accused must sho cause hy he is to be released% &f the accused is ordered to be released, any of the ordinary conditions apply- s !!() S s !** (re. s 46H o%%ences). (i What are s AM) offencesH (see p ..B of Code$ (ii &f it;s a AM) offence,then hayH /nd, a!ain a re"erse onus applies% &f the accused is order to be released, any of the ordinary conditionsapply%

Reviewing order - / decision made by a 5ustice concernin! release or detention may be re"ieed by a 5ud!e upon application of theaccused or the prosecution6 s !*+E!*

1 " IallFA'/9. ?a"id Scott Iall as char!ed ith the murder of a oman in a hi!h profile case% Ie applied for bail pendin!trial% he 5ud!e denied the application--not for reasons of ensurin! appearance in court or protectin! the public--but inorder @to maintain confidence in the administration of 5ustice@% 'ara!raph B7B(7K(c of the Criminal Code allos thedenial of bail for this reason% Iall appealed the decision on the basis that section B7B(7K(c "iolated the ri!ht @not to bedenied reasonable bail ithout 5ust cause@ under section 77(e of the Charter299:. he issue in this case is hether olan 2% erred in denyin! bail on the basis that this as necessary “to maintainconfidence in the administration of 5ustice”%1:A9&2&>.

“& a!ree that the openin! phrase of s% B7B(7K(c, read as conferrin! a broad discretion to deny bail for “5ust cause”, isunconstitutional% Ioe"er, the balance of s% B7B(7K(c, hich permits denial of bail here necessary to maintainconfidence in the administration of 5ustice, plays a "ital role in preser"in! the bail system and the !ood administration of

5ustice, and is neither unduly "a!ue nor o"erbroad” 3unction of para (c6 o allo an accused to be released into the community on bail in the face of a heinous crimeand o"erhelmin! e"idence may erode the publics con%idence in the ad"inistration o% justice % Without publicconfidence, the bail system and the 5ustice system !enerally stand compromised% Dail denial to "aintain con%idencein the ad"inistration o% justice is not a "ere catch-allB %or cases where the %irst two grounds ha;e %ailed# 2trepresents a separate and distinct basis %or bail denial not co;ered by the other two categories

'ara (c is not unconstitutionally "a!ue or o"erbroad6 t he !round based on maintainin! confidence in theadministration of 5ustice is more narroly defined than the “public interest” standard in Morale

/nother :uestion is hether the means it has chosen !o further than necessary to achie"e that purpose% &n my "ie,they do not% 'arliament has hed!ed this pro"ision for bail ith important safe!uards% he 5ud!e must be satisfied thatdetention is not only ad"isable but necessary% he 5ud!e must, moreo"er, be satisfied that detention is necessary not 5ust to any !oal, but to maintain confidence in the administration of 5ustice% At the end o% the day, the judge can onlydeny bail i% satis%ied that in ;iew o% these %actors and related circu"stances, a reasonable "e"ber o% theco""unity would be satis%ied that denial is necessary to "aintain con%idence in the ad"inistration o% justice

$:. 'ara (c is constitutionally "alid

>://2&> 1:A F1 /12A.isclosure and =reli" 2nuiries

0 29'91:

- / #ey ri!ht of the accused, and an important obli!ation on the Cron, is to ma#e full disclosure of the fruits of thein"esti!ation to the accused- /ll the fruits of the in"esti!ation are to be disclosed sa"e hat is clearly irrele"ant or pri"ile!ed- ?isclosure is to be made before t he accused is called upon to elect his mode of trial for s B>M indictable offences/ . $ #tinc!combe established the ri!ht of disclosure for an accused, and the case also established "arious rules thatapply to disclosure

Content of the right to disclosure

- "idence, if rele"ant, must be disclosed by Cron, hether inculpatory or exculpatory- "idence is rele"ant if it is of some use ot the defence (R v Egger - ?isclosure must be made prior to election or plea- &t is a continuin! duty to disclose- ut the ri!ht isn;t absolute e%!% need not produce pri"ile!ed or irrele"ant material- What if disclosure isn;t made properlyH R v Di>on set out a > part test for determinin! hether and, if so, hat remedy ould be a"ailable if there is un5ustified non-disclosure (see p 8K9- /nother issue is pri"ile!ed information (of hich there are > !eneral cate!ories informer pri"ile!e, solicitor-clientpri"ile!e and pri"ile!e in counsellin! records%

Conflicting protections$ disclosure and privileged information- he folloin! topics are co"ered in this part6(7 &nformation pri"ile!e$ (8 Solicitor-client pri"ile!e$ (> Counsellin! records$

1 " StinchcombeFA'/9. he accused, a layer, as char!ed ith breach of trust, t heft and fraud% / former secretary of his as aCron itness at the preliminary in:uiry, here she !a"e e"idence appar ently fa"ourable to the defence% /fter thepreliminary in:uiry but prior to trial, the itness as inter"ieed by an 1CF' officer and a tape-recorded statement asta#en% +ater, durin! the course of the trial, the itness as a!ain inter"ieed by a police officer and a ritten statementta#en% ?efence counsel as informed of the existence but not of the content of the statements% Iis re:uests fordisclosure ere refused% ?urin! the trial defence counsel learned conclusi"ely that the itness ould not be called by theCron and sou!ht an order that t he itness be called or that the Cron disclose the contents of the statements to thedefence% he trial 5ud!e dismissed the application% he trial proceeded and the accused as con"icted of breach of trustand fraud% Conditional stays ere entered ith respect to the theft counts% he Court of /ppeal affirmed the con"ictions ithout !i"in! reasons%1:A9&2&>.

Sub5ect to the CronGs d

criminal law nca summary (2)

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