Criminal Law CANS 2024-2025 PDF

CRIMINAL LAW CANS DEAN & MIZEL Sofiya Zadorozhna 2024-2025 Table of Contents INTRODUCTION...................................................................................................... 3 Criminal Law: Scope and Purpose..................................................................................... 3 Overview of Substantive Criminal Law & Criminal Procedure............................................................... 3 The Adversary System...................................................................................................... 4 Ethical Obligations of Prosecution and Defence................................................................ 5 R. v. Stinchcombe.............................................................................................................................. 5 Classiﬁcation of OFences................................................................................................ 7 Sources of Criminal Law – Common Law, Constitution Charter.......................................... 8 Criminal Code................................................................................................................................... 8 Sedley............................................................................................................................................... 8 Frey v. Fedoruk.................................................................................................................................. 8 Henry.............................................................................................................................................. 10 Reference Re Firearms Act............................................................................................................... 11 Hunter v. Southam Inc..................................................................................................................... 13 Canadian Foundation...................................................................................................................... 13 Bedford........................................................................................................................................... 13 Safarzadeh-Markhali........................................................................................................................ 14 Interpretations of Criminal Statutes................................................................................ 15 Application under s. 83.28............................................................................................................... 15 Clark............................................................................................................................................... 15 Goulis............................................................................................................................................. 16 Pare................................................................................................................................................ 16 Mac................................................................................................................................................ 17 Summary of Interpretation of Criminal Statutes - focus on this for interpretation................................ 17 Presumption of Innocence and Standard of Proof............................................................ 18 Charter of Rights and Freedoms....................................................................................................... 18 Woolmington v. D.P.P....................................................................................................................... 18 Lifchus............................................................................................................................................ 18 Starr............................................................................................................................................... 19 S. (J.H.)............................................................................................................................................ 20 Mullins-Johnson.............................................................................................................................. 21 Oakes............................................................................................................................................. 21 Downey........................................................................................................................................... 22 THE ACT REQUIREMENT..........................................................................................22 Commission of Unlawful Act.......................................................................................... 22 Lohnes............................................................................................................................................ 23 Pham.............................................................................................................................................. 24 Morelli............................................................................................................................................ 25 Chalk.............................................................................................................................................. 25 Consent or No Consent.................................................................................................. 25 Jobidon........................................................................................................................................... 27 Moquin........................................................................................................................................... 27 Mabior............................................................................................................................................ 28 Kubassek........................................................................................................................................ 28 1 Omission – Legal Duty to Act........................................................................................... 29 Fagan.............................................................................................................................................. 29 Miller.............................................................................................................................................. 30 Thorton........................................................................................................................................... 30 Browne........................................................................................................................................... 31 Summary of Omissions – Any Q will be from this slide...................................................... 31 Voluntariness................................................................................................................ 32 King................................................................................................................................................ 32 Rabey Examples associated with Mental Disorder (or Condition)...................................................... 32 Parks Examples associated with Mental Disorder (or Condition)....................................................... 33 Lucki Ex. not associated with mental disorder (or condition)............................................................. 33 Wolfe Ex. not associated with mental disorder (or condition)............................................................ 33 Ryan Ex. not associated with mental disorder (or condition)............................................................. 33 Summary....................................................................................................................... 34 Causation...................................................................................................................... 34 General – Criminal Code ss. 222-229................................................................................................ 34 Smithers......................................................................................................................................... 35 Harbottle........................................................................................................................................ 35 Nette.............................................................................................................................................. 36 Maybin............................................................................................................................................ 36 Summary of Causation tests........................................................................................... 37 THE FAULT REQUIREMENT......................................................................................38 Objective/Subjective Distinction.................................................................................... 38 Zora................................................................................................................................................ 39 Hundal............................................................................................................................................ 39 Walle.............................................................................................................................................. 40 Summary: Subjective/Objective Distinction.................................................................... 40 Public Welfare or Regulatory OFences............................................................................ 41 Sault Ste. Marie............................................................................................................................... 41 Wholesale Travel – exam questions will not be chosen from this case................................................ 42 Reference Re Section 94(2).............................................................................................................. 43 Summary....................................................................................................................... 43 Fault for Crimes............................................................................................................. 44 Murder............................................................................................................................................ 44 Constructive Murder........................................................................................................................ 46 Classiﬁcation of Murder: First or Second.......................................................................................... 47 Summary........................................................................................................................................ 50 Provocation as a Partial Defence to Murder..................................................................... 50 Criminal Code s.232........................................................................................................................ 50 Hill.................................................................................................................................................. 52 Parent............................................................................................................................................. 53 Intoxication as a Partial Defence to Murder..................................................................... 53 Voluntary Intoxication...................................................................................................................... 53 Speciﬁc and General Intent.............................................................................................................. 53 Daley.............................................................................................................................................. 54 2 Nealy.............................................................................................................................................. 54 SUMMARY....................................................................................................................................... 55 INTRODUCTION Criminal Law: Scope and Purpose Overview of Substantive Criminal Law & Criminal Procedure What is a crime o A crime is a act or o Criminal code sets what are crimes and what their punishments a o Targeted at an evil against society o Crime consists of a Prohibition Corresponding penalty Directed towards a public purpose - reason why people are not allowed to do this o 4 condition Actions of behaviours of a person must be considered wrong Persons actions must cause harm to society or individual victims Harm should be serious Person will be punished by criminal justice system for their actions o Scope Lawmaking - sec 91 and 92 of the constitution are of particular importance, as they enumerate the subjects for which each jurisdiction (prov or fed) can enact law, with sec 91 listing matters of federal jurisdiction and 92 listing prov o Sec 91, federal power Give Canadian parliament the power : to make laws for the peace, order and good govt of Canada in relation to the legislature so the province" deﬁne and outlines the responsibilities and duties of the fed § S.27 The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. § 28 the establishment, maintenance , and management of penitentiaries o Q.. What, if anything , is the result in law of legislation by a province where it may be classiﬁed as essentially criminal in nature? Basic principle require the conclusion that such legislation is invalid, regardless of any perceived need for its substantive provision, and regardless of perceived defects or gaps in the federal legislative plan 3 o Sec 92 - provincial powers This section deﬁnes and outlines the speciﬁc powers given exclusively to the provincial government to make laws in relation to matter enumerated in the section and in which the federal government may not interfere. Sec 92 give he provi ability enact laws and police services, probationary services and ancillary services in the province § Sec 6 the establishment, maintenance, and management of public and reformatory prisons in and for the province § Sec 14 the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matter in those courts. (2 or more years - the penitentiary) Item 14 of s.92 has been ruled to entitle the provinces to establish police forces, prosecution services, probation services, and ancillary agencies associated with the administration of criminal justice in the province. Purpose of Criminal law o Basic purpose – is to protect all members of society from seriously harmful and dangerous conduct and to contribute to the maintenance of a just, peaceful and safe society through the establishment of prohibitions, sanctions and procedures to deal fairly and appropriately with culpable conduct that causes serious harm to individuals or society. o To prevent crime by deterring individuals from committing o]ences (through the imposition of appropriate sanctions/sentences). o The focus in criminal law is on the conduct of the accused, not on the merits of the victim (as contrasted to a civil case where the victim’s negligence is very relevant). A criminal conviction can be justiﬁed even when no injury is caused to anyone. o An accused in a criminal case is entitled to the beneﬁt of any reasonable doubt and to the protection from procedures that might be seen as unfair. It has always been thought better that nine guilty persons should go free than one innocent person should be convicted (because of the potentially devastating consequences of a criminal conviction). The Adversary System Adversary System: o Adversary versus Inquisitorial or Scientiﬁc method - The principal distinguishing characteristic is the relative passivity of the judge. o Parties – Crown and Defence (not the judge) o In the adversary system the judge’s function is to make the ultimate ﬁnding of facts but not to personally investigate - rather to judge the merits of two positions. The contestants seek to establish through relevant supporting 4 evidence, before an impartial trier of facts, those events or happenings which form the basis of their allegations. This procedure assumes that the litigants, assisted by their counsel will fully and diligently present all the material facts which have evidentiary value in support of their respective positions and that these disputed facts will receive from a trial judge a dispassionate and impartial consideration in order to arrive at the truth of the matters in controversy. o Opinions are that this method is the most capable of promoting or approximating the truth. o The diligence and vigour with which the lawyers ferret out evidence favourable to their side while at the same time attacking their opponent’s case are seen as a ﬁner guarantee of approximating the historical truth. Role of prosecutor (Crown) o The role of the Crown is not to obtain a conviction…the role of the prosecutor excludes any notion of winning or losing…the prosecutor’s role is to lay before the trier of fact what the Crown considers to be credible evidence relevant to what is being alleged to be a crime in order that justice may be done through a fair trial upon the merits. o Ministers of Justice o Lawyers for the public (not the victim) o No winning or losing just presenting the case Ethical Obligations of Prosecution and Defence R. v. Stinchcombe o Brief overview of facts o RATIO: Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. The Crown has a duty to produce all evidence that could potentially be of use to the defence, whether or not the evidence is actually used. The Crown cannot purposely refuse to disclose evidence, even if it might be harmful to the government’s case. o The fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. o In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justiﬁed as being consistent with this role. o OBITER: The prosecutor is to lay their case before the court ﬁrmly and to its legitimate strength (and no further). They exercise a public function involving much discretion and power and must act fairly and dispassionately. They should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted 5 practice, should make timely disclosure to the accused or defence counsel of all relevant facts and known witnesses, whether tending to show guilt or innocence, or that would a]ect the punishment of the accused. o Crown counsel should be of absolute integrity and above all suspicion of favouritism or unfair compromise…they should be a symbol of fairness. Crown has responsibility to be careful, things that are obviously irrelevant. Better to give more than ess Role of Defence Counsel o Is of great importance to the administration of justice and to our democratic society. Crown Counsel are often regarded by the community as its protector and champion. Defence Counsel are most often associated with their clients. Often thought of as those who take advantage of every loophole in the law to gain an acquittal. o They must defend those charged no matter how heinous/despicable the charge may be, within the limits of the law, from being convicted. o The lawyer duty to the client is to fearlessly raise every issue, advance every reasonable argument/defence, and ask every question, however distasteful, which he/she thinks will help their client’s case and to endeavour to obtain for the client the beneﬁt of any and every remedy and defence which is authorized by law. o In many circumstances it can seem like the accuser/complainant is the one on trial. o It cannot be forgotten that there are innocent people who are charged with murder, or charged with sexual assault, simple/common assault, fraud, mischief or any other o]ence set out in the criminal code. Defence counsel have a vital role in ensuring that no person is found guilty unless guilt is proven beyond a reasonable doubt. o The lawyer may properly rely upon all evidence or defences including so- called technicalities not known to be false or fraudulent. o The defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role. o Our system works best when able and well-prepared counsel on both sides make their presentations to an impartial judge or a jury. Role of the Judge o Judges play many roles. The judge's ﬁrst role is to make sure all the parties and witnesses follow proper court room procedure. Procedure is of vital importance to the legal system. It was designed to ensure that everyone who comes to court gets a fair trial. o Judges interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. They are the gatekeeper of what evidence should be allowed into the record of the proceedings. o Judges are impartial decision-makers in the pursuit of justice. In our adversarial system of justice – legal cases are contests between opposing sides. The judge, however, remains above the fray, providing an independent, 6 impartial, and objective assessment of the facts and how the law applies to those facts and renders justice within the framework of the law. Judges do not judge the parties that come before the court. Judges judge the merits of a case, and in a criminal context the judge hearing a case without a jury is given the task of determining whether the Crown has met its burden of proof which is proving the accused guilt beyond a reasonable doubt. o If it is a trial with a jury, the judge instructs the jury on the relevant law and how to consider the evidence and then the jury determines whether the Crown has met its burden. o In either situation (with or without a jury) if an accused is found guilty then it is the judge’s role to determine the just and ﬁt sentence. Classiﬁcation of OBences Classiﬁcation of O]ences - about 2 questions from this will be on the exam o Straight Summary Usually less serious – ex. Causing a disturbance, prowl at night, An agent can appear Maximum penalty - $5000 or 2 years in jail, or both (see s. 787) Limitation period – 12 months Trial in Ontario Court of Justice (OCJ); appeal to SCJ; then to CA; then to SCC Indictable o More serious – arson, manslaughter, murder; Appeal to CA o Maximum penalties range from 2 years to life; no general minimum penalties o Maximum 5 years where not otherwise speciﬁed – s. 743 o Counsel must ﬁle a designation, otherwise the defendant must appear o No limitation peroid o Exclusive jurisdiction o]ences – Superior Court of Justice – s. 469 o]ences (murder) o Absolute jurisdiction o]ences – Ontario Court of Justice (theft under) o Accused Elections - there is an election to be made – can elect to be tried in the SCJ with or without a jury, with or without a preliminary hearing; or can elect to be tried in the OCJ (for some, but not all indictable o]ences) Murder – only in SCJ – must be with a jury Hybrid o]ences: o Prosecution can choose whether to proceed by summary conviction or by indictment o Examples of hybrid o]ences include assault, indecent act, breaching a release order, possessing a prohibited weapon o Seriousness of o]ence can vary greatly o Crown decides how to proceed based on a number of factors 7 Sources of Criminal Law – Common Law, Constitution Charter Criminal Code SOURCES OF CRIMINAL LAW Common law Statues (legislation) Constitution Charter or rights and freedoms Sedley The common Law Sedley 1663 This case is an example of a "common law o]ence" - the court declaring an act criminal (jurisprudence), rather than the gov't through statue (legislation) Do we have common law o]ences today?? First criminal code - 1892 Criminal code applies across Canada (every province, including Quebec). Criminal code declares/sets out o]ences, defences, and procedure. Other federal statues and regulations also set out o]ences, such as the Controlled Drug and Substances Act (CDSA) and provincial statues and regulations such as the Highway Tra]ic Act (HTA) and the Liquor License Act (LLA). - quasi criminal - they are legislation passed by the provincial gov't Frey v. Fedoruk The issue was whether Fedoruk's detention of Frey was "lawful" The detention would be lawful if Fedoruk caught Frey committing a criminal o]ence Was being a "peeping tom" a criminal o]ence? The trial judge found that Frey was committing an o]ence at common law - akin to breach of the King's peace Appeal to SCC Ratio: No one should be convicted of a crime unless the o]ence with which they are charged is recognized as such in the provision of the Criminal Code or can be established by the authority of some previously reported case (common law) as an "o]ence known to the law" - Freys appeal was allowed o SCC stated, if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded (either by statute or common law), such declaration should be made by Parliament and not by the courts 8 o 1955 Amendments to the criminal code - parliament went further than the court in Fedoruk and abolished common law o]ences, except one o Criminal code abolished common law o]ences due to their ambiguity and signiﬁcant weight places on the judges to decide what act constituted a criminal o]ence o Section 9 - abolishes common law o]ences (there is one exception - contempt of court) When a judge tells someone (could be lawyer) tells yo to do something but you don’t do it o Section 8(3) - preserves all common law DEFENCES (some have been legislated, ex. Not criminally responsible (NCR, not mentally capable), self- defence) Criminal o]ences to be under law of Canada 9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 o (a) of an o]ence at common law o (b) of an o]ence under an Act of the Parliament of England, or of Great Britain, or of the UK of GB and Ireland o (c.) of an o]ence under an Act or ordinance in force in any province, territory or place before the province, territory or place became a province of Canada But nothing in this section a]ects the power, jurisdiction or authority that a court, judge, justice or provincial court judge has, immediately before April 1, 1955, to impose punishment for contempt of court Since those revision in 1955, legislation is now the pre-eminent source of criminal law in Canada. A change must always allege a breach of a statutory provision o Presumption of innocence o Burden of proof o Mens rea o Actus reas Common law (judge-made law) remains essential to the criminal justice system. Many mental elements of crimes and defences are deﬁned by the common law rather than being speciﬁed in the CC or other statute Common law helps guide judicial reasoning through a practice of relying on earlier decisions ("precedents"). It assists by deﬁning and shaping criminal defences and procedural rules, as well as sentencing guidelines, principles and ranges There is a long-established tradition for the courts to rely on other courts decisions - and decisions from higher courts are typically binding or persuasive - stare decisis (to stand by things decided) Every province has a hierarchy of courts - every province has 2 levels of trial courts and a court of appeal with a ﬁnal appeal to the SCC 9 In relying on previous decisions, a distinction sometimes must be drawn between the ratio decendi (the point/issue or points/issues it actually decided) and obiter dicta (other statements made by the court during the course of the decision which are not strictly essential to the resolution of the case) This distinction was considered in R. v. Henry Doctrine of Precedent Stare decisis Obiter dicts v. ratio decendi R v. Henry Henry R v. Henry 2005 (SCC) The AG urged the court to adopt a strict interpretation of what is ratio vs. obiter. They urged the court to ﬁnd that the ratio was binding but obiter could be ignored Courts conclusion: not all obiter dicta binding, but some obiter dicta intended to give guidance should be accepted as binding while some obiter dicta is intended to be persuasive , but not binding. Di]icult at times to determine the di]erence Note: precedents - not all are binding - can be distinguishes on its facts or the law involved - give judges some ﬂexibility Division of powers under the Constitution Act 1867 Section 91 - federal Section 91 (27) criminal law. - gives fed power to pass legislation that deals with criminal power Section 92 - provincial Section 92 (6) management of prisons Section 92 (13) - property and civil rights Section 92 (14) - administration of justice (courts) - province gets jurisdiction to dela with administration of justice Section 92 (15) penalties for enforcing violations of any law of the province S 91 - assigns matter that a]ect the entire country to the Federal Parliament S 91 (27) - the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matter S 92 - the matters that are exclusive powers of provincial legislation S 92 (14) - the administration of Justices in the Province, including the constitution, maintenance, and organization of Provincial courts, both of civil and of criminal jurisdiction, and including procedure in Civil matters in those courts 10 Reference Re Firearms Act Reference re Firearms Act (Canada) 2000 SCC "refence" - intra cvres (inside the powers) / ultra vires (outside the powers) Issue: whether parliament had the constitutional authority to enact the Firearms Act Was this legislation: o Criminal law - 91 (27) (fed) or o Property and civil rights - 92 (13) (prov) 2 stage analysis: o First: Consider pith and substance (essential character of the law Purpose of the Act and the legal e]ect of the law Look at the language used What did they say during the House of Commons debates o Second: Classify the essential character of the law (pith and substance) by reference to the heads of p ower under the Constitution Act (ss. 91 & 92), to determine whether the law (in this case the Firearms Act) comes within the jurisdiction of the enacting government. If it does, then it is valid The purpose of the legislation: o Often stated in the legislation itself but may also be determined by reference to extrinsic material, such as Hansard (o]icial record of proceedings/debates) and government publications. Also, by considering the problem which parliament sought to remedy. The legal e]ect of the law: o Determined by considering how the law will operate and how it will a]ect Canadians. o In some cases, the e]ects of the law may suggest a purpose other than that which is stated in the law. It may say it intends to do one thing and actually do something else. As a general rule, legislation may be classiﬁed as criminal if it possesses three prerequisites: o a valid criminal law purpose o backed by a prohibition and o a penalty o Concluded Legislation as within the powers (intra vires) of the Federal Gov’t. The Constitution Act, 1982 o Another source of substantive criminal law found within the Constitution is the Charter of Rights and Freedoms o The Constitution contains three provisions that are relied upon to provide an appropriate remedy to ﬁndings of inconsistency with the Charter: section 52(1) of the Constitution Act provides that a law that 11 is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or e]ect; o section 24(1) provides remedies against unconstitutional government action; o and section 24(2) provides for the exclusion of evidence obtained in violation of the Charter. Charter of Rights and Freeodms o Ecanted in 1982 o Considerable impct on criminal courts o Remedies under the charter - section 24 and 52 o o o As it relates to criminal law - There are two types of Charter challenges: challenges to conduct (government/police) and challenges to the law itself o To conduct: police infringed a Charter right by their actions or conduct (remedy s. 24(2) – exclusion of evidence); o To the law: the law itself is on trial (unconstitutional), remedy under s.52 of the Constitution Act (strike down or in some way rewrite the o]ending provision of the statute, unless saved by. s.1) 12 Hunter v. Southam Inc. Hunter v. Southam 1984 SCC § The judiciary is the guardian of the Constitution § purpose of the Charter is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines – it is intended to constrain governmental action inconsistent with those rights and freedoms § one of the sections which has the greatest impact on substantive criminal law is s. 7, which prevents governments from depriving persons of “life, liberty or security of the person” unless they act “in accordance with the principles of fundamental justice § in criminal law cases the important question tends to be whether the law which the accused is said to have violated is itself in accordance with the principles of fundamental justice. If it is not, it violates the Charter and will be struck down unless it can be saved by s. 1 of the Charter Charter continued § Section 7 - "principles of fundamental Justice" § Vagueness, overbreadth, arbitrariness, gross disproportionality The 4 ways a law can be struck down Canadian Foundation o Canadian Foundation for Children….2004 SCC - section 42 o Standard for vagueness: law is unconstitutionally vague if it “does not provide an adequate basis for legal debate and analysis; if it does not delineate any area of risk or is not intelligible. Certainty is not required. A law must set an intelligible standard both for the citizens it governs and the o]icials who must enforce it. A vague law prevents the citizens from realizing when he or she is entering an area of risk for criminal sanction. It also makes it di]icult for law enforcement and judges to determine whether a crime has been committed. Doctrine of vagueness directed generally at the evil of leaving basic policy matters to the discretion of police o]icers, judges and juries for resolution on an ad hoc and subjective basis. Bedford o Bedford v. A.G. 2013 SCC Applicants challenged the constitutionality of former section 210, 212, and 213 of the Code (prostitution related o]ences) 13 A law runs afoul of the Constitution when the means by which the state seeks to attain its objective is fundamentally ﬂawed, in the sense of being vague, arbitrary, overbroad, or having e]ects that are grossly disproportionate to the legislative goal. To deprive citizens of life, liberty or security of the person by laws that violate these norms is not in accordance with the principles of fundamental justice The case law on vague, arbitrariness, overbreadth and gross disproportionality is directed against two evils. First, the absence of a connection between the infringement of the rights and what the law seeks to achieve, it’s purpose. The ﬁrst evil is addressed by the norms against arbitrariness and overbreadth. Second evil lies in depriving a person of life, liberty or security of the person in a manner that is grossly disproportionate to the law’s objective. The law may be connected to its purpose, but the impact is so severe that it violates our fundamental norms (grossly disproportionate) Rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned e]ect on the individual, in the sense that the e]ect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s.7 deprivation, and the limits it imposes on life, liberty, or security of the person. (no rational connection = arbitrary) Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. There is no rational connection between the purposes of the law and some, but not all, of its impacts (rational connection to some but not all = partially arbitrary). The question for both arbitrariness and overbreadth is whether there is no connection between the e]ects of a law and its objective. Gross disproportionality asks a di]erent question. The law’s e]ects on life, liberty or security of the person are so grossly disproportionate to its purpose that they cannot rationally be supported. Only applies in extreme cases of arbitrariness, where the seriousness of the deprivation is totally out of sync with the objective of the measure. Safarzadeh-Markhali o Safarzadeh-Markhali 2016 SCC Overbreadth analysis Whether a law is overbroad within the meaning of s.7 turns on the relationship between the law’s purpose and its e]ect. Therefore, at the outset of the analysis it is critically important to identify the purpose of the challenged law. 14 A law’s purpose is distinct from the means used to achieve the purpose. Case sets out four things to consider when doing that analysis. (do not need to know) Conclusion of S. 7: o Laws can be struck down on being vague, arbitrary, overbroad, or as grossly disproportionate Interpretations of Criminal Statutes Application under s. 83.28 In Canada, the foremost/pre-eminent source of criminal law is legislation. Judges are given the task of interpreting the legislation and applying it to the facts of the case before them Re Application under s. 83.28 2004 SCC – Issue: constitutionality of an aspect of anti-terrorism legislation (s. 83.01 to 83.33 terrorism legislation) General principles of statutory interpretation “Modern principle of statutory interpretation”: Words of legislation must be read “in their entire context and in their grammatical and ordinary sense harmoniously w/ scheme of the Act, the object of Act, and the intention of Parliament”. (Rizzo & Rizzo shoes Ltd. (Re) 1998 1 SCR 27, Bell ExpressVu Limited Partnership v. Rex, 2002 2 SCR 559) Underlying this approach is a presumption that legislation is enacted to comply w/ constitutional norms, including the rights and freedoms enshrined in the Charter. Accordingly, where two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted. In other words, Charter values are to be used as an interpretive principle only in circumstances of genuine ambiguity. Clark R v. Clark 2005 SCC Convicted by trial judge and conviction upheld by BCCA, accused appeal to the SCC - the word "access" needed to be interpreted repeat of statement the court made in Re: Application under 83.28 of Code - “it is now well established the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament" (Bell ExpressVu and Rizzo & Rizzo Shoes) As a matter of semantics, the ordinary meaning of the disputed term will, of course, often vary with the context in which it is being used. 15 They stated a couple of other key principles: Parliament is deemed to act deliberately. So, if it was the intent of Parliament to include something in the legislation then they would have done so. In other words, if something is omitted or excluded one has to start with the notion that it was the intent of Parliament to omit or exclude it. It is inappropriate for a court to do what Parliament declined to do and remains free to do so if it chooses. Courts/Judges aren't supposed to make law; that is up to Parliament. Goulis R v. Goulis, 1981, OCA Note: this case is before Re: aplication under 83.28 Rizzo and Bell Express Vu Bankruptcy – Intent to defraud creditors – meaning of conceals in s. 392 (a)(ii) of CC (at the time) Doctrine of Strict Construction: If a criminal provision is reasonably capable of two interpretations that interpretation which is the more favorable to the accused must be adopted. However, this principle does not always require a word that has two accepted meanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or both meanings may apply. The court is ﬁrst required to endeavor to determine the sense in which Parliament used the word from the context in which it appears (i.e., apply the modern principle of interpretation ﬁrst). It is only in the case of an ambiguity which still exists after the full context is considered, where it is uncertain in which sense Parliament used the word, that the above rule of statutory construction (doctrine of strict construction) requires the interpretation which is the more favorable to the accused to be adopted. Pare R v. Pare, 1987 SCC The Accused (17) murdered a young boy (7) two minutes after indecently assaulting him. Phrase "while committing" needed to be interpreted Words could have one meaning when taken out of the Criminal Code and another meaning entirely when read in the context of the scheme and purpose of the legislation. It is the latter meaning that we must ascertain. Application of the doctrine of strict construction: Strict Construction of criminal statutes still exist, adopt interpretation most favorable to the accused. But, you still have to determine if interpretation is a reasonable one, given the scheme and purpose of the legislation. If parliamentary intent conﬂicts with interpreting in favor of accused, have go with parliamentary intent ﬁrst. 16 As well, an interpretation that runs contrary to common sense is not to be adopted if a reasonable alternative is available. (In this case, the act was ﬁnished but accused held hand on chest almost immediately thereafter.) considered a continuous action Mac R v. Mac, 2001 OCA The charges alleged that the appellant was in possession of various machines and materials "adapted" for and intended to be used to create forged credit cards The principle that ambiguous penal provisions must be interpreted in favour of an accused (doctrine of strict construction) does not mean that the most restrictive possible meaning of any word used in the statute must always be the preferred meaning. The principle applies only where there is true ambiguity as to the meaning of a word in a penal statute. The meaning of words cannot be determined by examining those words in isolation. Meaning is discerned by examining words in their context. True ambiguities in a statute exist only where the meaning remains unclear after a full contextual analysis of the statute (modern principle of statutory interpretation). The Criminal Code is a bilingual statute of which both the English and French versions are equally authoritative. Where the words of one version may raise an ambiguity, courts should ﬁrst look to the other oXicial language version to determine whether its meaning is plain and unequivocal. Summary of Interpretation of Criminal Statutes - focus on this for interpretation First– Modern principle of interpretation is to be applied: the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. If that doesn’t resolve the issue, then: If one version of the Code raises an ambiguity should look to the other o]icial language version to determine whether its meaning is plain and unequivocal, and if it is that meaning applies. If there is still ambiguity, Look to resolve ambiguity by considering Charter values (i.e., version that aligns best with Charter values) If still unclear/ambiguous, Apply strict construction rule: the one more favorable to accused 17 Presumption of Innocence and Standard of Proof Charter of Rights and Freedoms Woolmington v. D.P.P. Woolmington v. D.P.P. 1935, House of Lords Charge to Jury - if someone has died through the act of another, that is presumed to be murder, unless accused can prove what happened was something less While the prosecution must prove the guilt of the accused, there is no such burden laid on the accused to prove his innocence; he is not bound to satisfy the jury of his innocence. Burden on prosecution to show guilt of accused. If at the end and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the accused, the prosecution has not met its burden, and the accused is entitled to an acquittal. § Acquital from a legal point of view - the prosecution has not satisﬁed their burden of proof beyond a reasonable doubt Presumption of Innocence - A principle of fundamental to all criminal trials Section 11(d) of the Charter of Rights and Freedoms Section 11. Any person charged with an o]ence has the right….. (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal What does this mean for the accused? For the accused the presumption of innocence means: The accused starts the trial with a clean slate. The presumption stays with them throughout the case, from start to ﬁnish. It is only defeated if the Crown satisﬁes the trier of fact beyond a reasonable doubt of the guilt of the accused. The accused does not “have to” testify. The accused does not “have to” present evidence or prove anything in the case. It is Crown counsel who must prove the guilt of the accused beyond a reasonable doubt, not the accused who must prove their innocence. Lifchus R v. Lifchus 1997 SCC - seminal case on reasonable doubt Reasonable doubt The phrase “beyond a reasonable doubt”, is composed of words which are commonly used in everyday speech. Yet, these words have a speciﬁc meaning in the legal context. This special meaning of the words “reasonable doubt” may not correspond precisely to the meaning ordinarily attributed to 18 them. In criminal proceedings, where the liberty of the subject is at stake, it is fundamental importance that jurors fully understand the nature of the burden of proof that the law requires them to apply. How Should the Expression “Reasonable Doubt” be Explained to the Jury? What should be explained? the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence (meaning the two concepts cannot be separated). the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; a reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt, nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty. A jury (or judge) which concludes only that the accused is probably guilty must acquit. Proof of probable or likely guilt is not proof beyond a reasonable doubt. What should be avoided when explaining reasonable doubt? describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context; inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; equating proof “beyond a reasonable doubt” to proof “to a moral certainty”; qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious”, “substantial” or “haunting”, which may mislead the jury; and instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper deﬁnition as to the meaning of the words “beyond a reasonable doubt”. Starr R v. Starr 2000 SCC Similar to what the SCC had said in Lifchus: Beyond Reasonable Doubt is closer to absolute certainty than the balance of probability Jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials (“more likely than not”) 19 There is no universally intelligible illustration of the concept, such as the scales of justice with respect to the balance of probability standard. Unlike absolute certainty or the balance of probabilities, reasonable doubt is not an easily quantiﬁable standard. It cannot be measured or described by analogy. It must be explained but it is di]icult to explain. Must be remembered that it is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. An e]ective way to describe the reasonable doubt standard is to explain that it falls much closer to absolute certainty than proof on a balance of probabilities. A trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required for the jury to convict. Appropriate for the trial judge to situate the reasonable doubt standard appropriately between these two standards. If standards of proof were marked on a measure, proof beyond reasonable doubt would live much closer to absolute certainty than to a balance of probabilities. S. (J.H.) R v. S(J.H.) 2008 SCC The lack of a credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. Where credibility is a central issue in a criminal trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. That is where the case of R. v. W (D.) and the analysis within came into play. W. (D.) analysis: Where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. The SCC made it clear that while the WD analysis is okay, it should not be seen as something the court has to recite to the jury as though it is some magical incantation. If it is not stated it doesn’t mean the charge to the jury is faulty. 20 The main point is the jury, when dealing with assessing the credibility of witnesses, must be instructed that they do not have to decide whether something happened simply by comparing one version of events with the other, or by choosing one of them. It is not an either/or choice that you make. It is for the Crown to prove beyond a reasonable doubt that the events alleged in fact occurred. It is not for the accused to prove the events never happened. If after considering all of the evidence you have a reasonable doubt whether the events ever took place, you must ﬁnd the accused not guilty. Mullins-Johnson R v. Mullins - Johnson 2007 OCA There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no ﬁnding of factual innocence since it would not fall within the ambit or purpose of criminal law. Persuasive and evidentiary burdens Persuasive burdens Sometimes called legal or ultimate burdens. They apply at the end of a case, they never shift. Normally the burden is on the Crown to prove to a standard of BRD. Sometimes the persuasive burden of an issue is placed by Parliament or the courts on the accused to prove on BOP. This is called a reverse onus. Evidentiary burdens: Usually refers to the burden of pointing to evidence to put a legal issue into play. Sometimes referred to as giving a matter of an “air of reality”. Also sometimes used to describe a reverse onus which merely calls upon the accused to provide some evidence to doubt the fact or conclusion in question. Oakes R v. Oakes 1986 SCC Reverse onus and the charter - constitutionality of persuasive burden on the accused The right to be presumed innocent until proven guilty requires that s. 11 (d) have at a minimum, the following content: First, an individual must be proven guilty beyond a reasonable doubt. 21 Second, it is the State which must bear the burden of proof. Third, criminal prosecutions must be carried out in accordance with lawful procedures and fairness. Downey R v. Downey 1992 SCC The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt. If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on a balance of probabilities either an element of an o]ense or an excuse, then it contravenes section 11(d). Such a provision would permit a conviction in spite of a reasonable doubt. It must be remembered that statutory presumptions which infringe s. 11 (d) may still be justiﬁed pursuant to section 1 of the Charter. Statute requiring accused to prove own innocence creates “reverse onus” and is unconstitutional. Question becomes, can it be saved by section 1. THE ACT REQUIREMENT Commission of Unlawful Act Over the next few classes, we will be talking about the “Act Requirement” (Actus Reus) Generally speaking, for each criminal o]ence the Crown must prove the act (the actus reus) beyond a reasonable doubt (BARD) talked about the standard of proof last class For most crimes, the act requirement is self-evident. Stealing requires taking something belonging to someone else; assault is a positive act of applying force. However, in some instances the law’s description of the necessary external circumstance of the o]ence requires careful judicial analysis because it is vague or involves what appears to be a most minimal form of an act. Commision of an unlawful act 22 Lohnes R. v. Lohnes 1992 SCC Causing a disturbance in a public place Court considering what constitutes a public disturbance, s. 175(1)(a). that section makes it an o]ence to cause a disturbance in or near a public place by, ﬁghting, screaming, shouting, swearing, or singing or using insulting or obscene language. The court points out that shouting, swearing, singing are not criminal o]ences on their own; only become criminal when they cause a disturbance in or near a public place Issue: What constitutes a disturbance? (i.e. What is necessary to complete the actus reus of the crime, cause disturbance?) Analysis 175(1)(a) creates a 2-element o]ence: (1) Commission of one of the enumerated acts (swearing, etc.) (2) Causes a disturbance in or near a public place The Court asks itself where the line should be drawn, between a disturbance on the low-level/innocuous side of the spectrum (mere annoyance or emotional disturbance), to the other extreme, envisioning acts of violence, fear, apprehension for physical safety. Where should the line be drawn between the two extremes? Or is all conduct within the broad spectrum su]icient to found criminal liability? The main issue turns on how “disturbance” in the section is deﬁned The Court looks at 3 areas to come to its conclusion: Perspective of the authorities (common law) Principles of statutory construction Underlying policy issues 23 Ratio: The disturbance contemplated by s.175 (1)(a) is something more than emotional upset. It requires an externally manifested disturbance of the public peace in or near a public place, in the sense of interference with the ordinary and customary use of the premises by the public. The disturbance may consist of the impugned act itself or as a consequence of the impugned act. The disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place. Ruling: No evidence that there was a disturbance of the use of the premises in question by anyone. Conviction overturned. Possession O]ences Most o]ences require an accused to do something before they can be found guilty of an o]ence, or in some cases by omitting to do something. A few o]ences are based not on an accused’s action, or lack of action, but merely on the accused’s possession of certain items, such as narcotics, child pornography or stolen goods. Usually determined by the deﬁnition of s. 4(3)of CC. That section sets out three types of possession: personal, constructive and joint possession The following cases discuss the requirements of s. 4(3) in di]erent contexts Possession s. 4(3) CC Personal Constructive Joint Pham R v. Pham, 2005 OCA Issue: Did the court err in ﬁnding that the appellant had knowledge and control of the cocaine found in the bathroom 24 Constructive/joint possession case; not a personal possession case (the accused was not there when the drugs were found) Requisite elements of constructive possession: knowledge which extends beyond quiescent (passive) knowledge and discloses some measure of control over the item Requisite elements of joint possession – knowledge, consent and a measure of control. Direct v. circumstantial evidence Knowledge can be inferred from circumstantial evidence Morelli R v. Morell, 2010 SCC Merely viewing an image of child porn in a web browser does not establish the level of “control” necessary to establish the act of possession General principles relating to possession: Personal possession Knowledge, consent, control Knowledge comprises 2 elements: awareness that they have physical custody of the thing in question, and must be aware of what it is, both elements must co-exist with an act of control Constructive possession Accused does not have actual physical custody of the object at the time it is discovered/seized but has knowledge of the character of the object, knowingly puts it in a place, whether that place belongs to him (or places it with another person), and intends to have the object there for his use or beneﬁt or the beneﬁt of another person Chalk R v. Chalk Doctrine of Innocent possession Exercising control over an object with the requisite knowledge, but solely with the intent of destroying it or otherwise permanently removing it from one’s control does not constitute criminal possession Consent or No Consent Relevant Statutory Provisions: 265(3), 271, 273.1(1) How does the Crown prove the absence of consent? Crown does have to prove there was no consent Subsection 3 - inference can be drawn based on the facts. You can also ask the question, but you don’t hqve to 25 Scenarios: unprovoked punch; consensual ﬁght; consensual touching; consent that is vitiated Statutory Provisions 26 Jobidon R v. Jobidon 1991 SCC Charged with manslaughter Issue: ISSUE at SCC – does the absence of consent always have to be proven by the Crown? Or are there common law limits that restrict or negate (vitiate) consent in some circumstances? Facts: consensual ﬁght; V falls unconscious, and A continues to hit him A person commits culpable homicide when he/she causes death of a person by means of an unlawful act Trial: Jobidon was acquitted because the Court was not satisﬁed BARD that he had committed an unlawful act; it’s not against the law to have a consensual ﬁght; lack of consent is the critical ingredient to establishing an assault/unlawful act Court of Appeal: s. 265 should be construed subject to common law limits re: consent is not a defence where bodily harm is intended or caused SCC: Interpreted section 265 of the Code Discussed some policy considerations Issue: to what extent is consent limited? Ratio: the limitation demanded by s. 265 as it applied to the circumstances of this appeal is one which vitiates consent between adults who intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a ﬁst ﬁght or brawl. Moquin R v. Moquin, 2010 Man. CA Interpretation of "bodily harm" Section 2 of the Criminal Code Bodily harm? In Jobidon, the complainant died from injuries to head – meets the test What about where someone has a bruise? A bloody nose? What about a sore wrist? What about a headache that lasts for 3 days? Some are obvious – serious wounds, fractures, stitches, Some are less-obvious, but there is support in the jurisprudence that BH has been found where: o Scrapes, lacerations, bruises – can cause discomfort and inconvenience for more than a brief and transitory period o Bruising and abrasions have been found to have interfered with the V’s health or comfort Transient or triﬂing must be considered together. 27 One must look to the overall e]ect of all injuries , each of which may be triﬂing, but taken together may be more than triﬂing and transient Medical evidence is not required Mabior R v. Mabior 2012 SCC In the SCC decision of R. v. Cuerrier in 1998, the Court set out the test for establishing a fraud vitiating consent in the context of non-disclosure of HIV. The existence of fraud should not vitiate consent unless there is a signiﬁcant risk of serious harm. In this case, the Court was asked to revisit the Cuerrier test. It focused on the aspect of the Cuerrier test that requires the Crown to prove that the dishonest act exposed the complainant to a signiﬁcant risk of bodily harm – what does this mean? When is it met? The Court ﬁnds the Cuerrier test valid in principle; and attempts to build greater certainty into how it is applied. When does a signiﬁcant risk of bodily harm arise? Ratio: where there is a realistic possibility of transmission of HIV, a signiﬁcant risk of bodily harm is established. TO SUM UP: 1. FAILURE TO DISCLOSE (dishonest act) = amounts to a fraud where the complainant would not have consented had they known the accused was HIV+ and the sexual contact poses a signiﬁcant risk of bodily harm (deprivation). 2. A signiﬁcant risk of bodily harm is established by a realistic possibility of transmission of HIV. Disclosure of HIV status required if there is a realistic possibility of transmission. 3. A realistic possibility of transmission is negated by evidence of a low viral load and a condom being used. Kubassek R v. Kubassek, 2004 OCA Allegation of assault The act was a “push/shove” resulting in the complainant stumbling; he did not fall and was not injured Trial Judge found that the act was de minimus (de minimus non curat lex – the law does not govern/concern itself with triﬂes); CA disagreed The doctrine of de minimus operates at common law to reserve the application of criminal law to serious conduct; it protects the accused from the stigma of a 28 conviction for trivial conduct; it does not mean the act is justiﬁed; it remains unlawful, but on account of triviality it goes unpunished. SCC and CA in this case have avoided deciding the issue as to whether de minimus can still be applied in the context of criminal law. Did not apply in this case…actions of accused beyond de minimus range Omission – Legal Duty to Act There is an assumption that criminal liability should only attach to action on the part an accused, not mere inaction. Generally, the criminal law prohibits us from harming other people but does not require us to help them. Therefore, omissions are not normally criminal. Often, in cases where an omission is explicitly criminalized, it is done so on the basis that an accused has a duty to act. Omission - legal duty to act General principle: criminal responsibility for omissions is limited to cases where there is a legal duty to act and not a moral duty; in other words, mere omission to act cannot amount to a crime unless there is a legal duty to act. The only common law that is still in the criminal code is contempt of the court Fagan Fagan v. Commissioner of Metropolitan Police 1968 (Eng. C.A) Fagan was directed to park his car along the curb by the o]icer. While doing so he drove onto the foot of the o]icer, by accident. The o]icer tells Fagan to drive forward and park his car, but Fagan refuses (with colorful language). A mere omission to act cannot amount to an assault; some intentional act must have been performed There must be actus reus and mens rea at the same time. Actus reus is the action causing the e]ect on the victim’s body (or mind). The mens rea is the intention to cause that e]ect. The act and the intent must be present at the same time to constitute a crime. Not necessary that mens rea should be present at the beginning of the actus reus; it can be superimposed on an existing act…however the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an oXence (in this case an assault). Court held that actus reus can be a series of actions, which constitute a continuous act. How do legal duties arise? Sometimes by statute (s. 215, 216, 217, 217.1, 219). Can the court create legal duties (common law)? Remember s. 9(a), which eliminates common law crimes. 29 Miller R. v. Miller (House of Lords- 1983) WILL NOT A CASE THAT TESTED REALLY _ NO UNDERLINES OR BOLD Miller fell asleep on his mattress while smoking a cigarette. When he woke up to mattress being on ﬁre, he didn’t call for help, nor did he put out the ﬁre. He simply moved to another room, went back to sleep thereby allowing the ﬁre to spread. Woke up to police and ﬁre personnel arriving. Said he did not have anything to put the ﬁre out with, so he just left it. Charged with arson. A person who creates a dangerous situation may be under a duty to take reasonable steps to avert that danger, by himself or by sending for or calling for help… There is “no rational ground for excluding from criminal liability conduct which consists of failing to take measures that lie within one's power to counteract that danger, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the o]ence. Here the House of Lords created a common law duty. Questionable whether the same approach could be used in Canada because of s. 9(a) C.C. which eliminates common law crime. But case of Thornton (OCA) seems to suggest same approach can be used. Thorton R. v. Thornton 1991 (OCA) then 1993 SCC Thornton knew he was HIV positive (had twice tested positive and knew he was infectious), yet he donated tainted blood to the Red Cross (was detected and put aside). Charged with common nuisance under s. 180(2) ISSUE #1: Can a legal duty within the meaning of s. 180 (2) be one according to common law, or must it be a duty imposed by statute? Court of Appeal, referring to cases decided regarding criminal negligence, rules legal duty refers to duty imposed by statute or common law. Issue #2: Was there a common law duty? Court of Appeal said common law duty to refrain from conduct which defendant foresees may cause serious harm to other persons. Therefore, legal duty within meaning of that term in s. 180(2). Appealed to the Supreme Court: Supreme Court of Canada held that s. 216 applies. Said duty was breached by not disclosing blood was HIV positive. Thornton violated his duty to disclose his HIV status. SCC seems to have avoided or did not care to discuss the issue of the common law duty and therefore no answer about s. 9(a). 30 Browne R. v. Browne 1997 OCA The accused and his friend and fellow drug dealer G were stopped by police and searched for drugs. No drugs were found, and they were released. G had swallowed a plastic bag containing crack cocaine to avoid its detection during a strip search. After she and the accused were released, she tried unsuccessfully to throw up the bag. Started shaking and sweating. Accused said he would take her to hospital. Called for a taxi. Waited 10 to 15 mins for taxi. G died shortly after arriving at the hospital. The accused was charged with criminal negligence causing the death of G by failing to render assistance to her by not taking her immediately to hospital after undertaking to render such assistance The trial judge concluded that the accused's statement that he would take G to hospital constituted an "undertaking" within the meaning of s. 217 of the C.C. and that by using a taxi instead of calling 911, the accused showed a wanton and reckless disregard for G's life contrary to s. 219(1) of the Code. OCA said: A conviction for criminal negligence causing death carries a maximum penalty of life imprisonment. The word "undertaking" in s. 217 must be interpreted in this context. The threshold deﬁnition must be su]iciently high to justify such serious penal consequences. The mere expression of words indicating a willingness to do an act cannot trigger the legal duty. Must be something in the nature of a commitment upon which reliance can reasonably be said to have been placed. Nothing short of a binding commitment can give rise to the legal duty contemplated by s. 217. OCA found no undertaking within meaning of s. 217; therefore, no legal duty, therefore no breach of s. 219 Summary of Omissions – Any Q will be from this slide An omission can constitute actus reus in certain circumstances. For omission to be a crime, must have a legal duty to act. Legal duty refers to duty imposed by statute or common law (at least according to OCA in Thornton). An omission or failure to act will constitute actus reus and give rise to liability only when the law (common law or statute) imposes a legal duty to act, and the defendant is in breach of that duty. Note: There is no legal duty (common law or statute) to aid someone who is in peril, even if the aid can be done without any risk to him or herself. [If you are in Quebec there is legislation that requires you to assist unless danger to yourself or third person; or another valid reason.] 31 Voluntariness King R. v. King 1962 SCC The accused went to his dentist by appointment to have two teeth extracted. He was injected with a drug known as sodium pentothal, a quick-acting anaesthetic. Earlier, he had been required to sign a printed form containing a warning not to drive after the anaesthetic until his head had cleared. After he regained consciousness, the nurse in attendance, to whom he appeared to be normal, warned him not to drive until his head was “perfectly clear”. He replied that he intended to walk. The accused said that he heard no such warning and did not remember signing any form containing a warning regarding the drug he was injected with. He remembered getting into his car and that while driving he became unconscious. His car ran into the rear of a parked vehicle. No actus reus unless it is the result of a willing mind at liberty to make a deﬁnite choice or decision. Two main contexts in which a claim of lack of voluntariness arises: 1. Because of some abnormal mental condition (or disorder) on the part of the accused (ex. automatism). 2. Arising out of the circumstances of the case. Rabey Examples associated with Mental Disorder (or Condition) U of T student (1974) age 20, 3rd year – studied together with two males, lunch together, pub together…victim wrote letter to friend which accused found while they were studying together – put in his pocket…read later at home, became upset, angry and confused he says…next day during lab put rock in his pocket, said he intended on taking it home to study it…went to watch squash game, invited victim, no one there when they got there…when they were leaving he asked victim what she thought about Gord (she had mentioned Gord in letter)…said he was just a friend; asked what she thought of him, said just a friend…struck her in the head twice with a rock Consciousness is a sine qua non (an essential condition) to criminal liability. A person is responsible only for his conscious intentional act. No act can be criminal unless it is done voluntarily. An act that is involuntary entitles the accused to a complete and unqualiﬁed acquittal. The Crown always bears the burden of proving a voluntary act (BARD). 32 Parks Examples associated with Mental Disorder (or Condition) One-night Parks fell asleep in the living room, but a few hours later he got up, put on a jacket and running shoes, grabbed his car keys and the keys to his in-laws' home and drove 23 kilometres to their home. He then parked in a somewhat conﬁned underground parking area, took a tire iron from his car and entered the home. He got a knife from the kitchen and went to his in-laws' bedroom, where they were sleeping. He strangled his father-in-law until he was unconscious and at some stage inﬂicted cuts to his head and chest. The father- in-law was hospitalized but recovered. The accused repeatedly stabbed his mother- in-law and brutally beat her with a blunt instrument. She died. Parks said he was sleepwalking the whole time, and therefore he could not have been responsible for any acts that he committed while sleepwalking. Voluntariness is part of the actus reus component of criminal liability. Generally, where it can be shown that the conduct of the accused is not of his conscious mind, then there is no actus reus. Lucki Ex. not associated with mental disorder (or condition) Accused made a right turn while operating vehicle at 10 -15 mph (16-24 km/h), and while doing so, his car skidded over onto the left side of the road. As a result, he collided with another car, which was proceeding in an opposite direction. Charged under The Vehicles Act of the Province of Saskatchewan. Judge found that his car got onto the wrong side of the road by an involuntary act, caused by the condition of the road. It was not faulty driving that placed him in the position where he ended up. Therefore, this was an involuntary act, for which he is not to blame. Wolfe Ex. not associated with mental disorder (or condition) A man who had been prohibited by the owner (Wolfe) previously, came into bar and he wouldn’t leave upon owner’s request. Wolfe then called the police, and while doing so, the man sucker punched him. Wolfe quickly spun around and hit him with the phone (receiver) in the head causing serious cut to victim’s forehead. Wolfe was charged with assault causing bodily harm. The action was described by the trial judge as a “reﬂex action”. Convicted at trial, but the conviction was set aside at the Court of Appeal. Reﬂex action, therefore, it was an involuntary act. Ryan Ex. not associated with mental disorder (or condition) discussion on whether the act should be considered voluntary or involuntary. Or is voluntariness be more accurately regarded as part of the mens rea 33 Summary Voluntary conduct is a necessary element for criminal liability. Voluntariness is part of the actus reus requirement. No act can be criminal unless it is done voluntarily. No actus reus unless it is the result of a willing mind at liberty to make a deﬁnite choice or decision. For an act to fulﬁll actus reus, it must be done purposefully, at one’s own voluntary/free will. Generally, where it can be shown that the conduct of the accused is not of his conscious mind, then there is no actus reus. A defence that the act is involuntary entitles the accused to a complete and unqualiﬁed acquittal. The Crown always bears the burden of proving a voluntary act (BARD). However, there is a presumption in law that the accused acted voluntarily. Causation General – Criminal Code ss. 222-229 Criminal Code ss. 222 - 228 Homicide – s. 222 – DEFINITION ==> a person commits homicide when, directly or indirectly, by any means, he CAUSES the death of a human being S. 222 – culpable v. non-culpable homicide S. 222(2) – homicide is either culpable or non-culpable 222(3) – homicide that is not culpable is not an o]ence 222(4) – culpable homicide is murder or manslaughter or infanticide 222(5) – a person commits culpable homicide when he causes the death of a human being, o By means of an unlawful act o By criminal negligence o By causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or o By wilfully frightening that human being, in the case of a child or sick person Causation In the case of some but not all o]ences the actus reus requires the causing of certain consequences (e.g. homicide, arson, causing bodily harm, crim. Negligence causing death, etc.). Causation, generally, is the causal relationship between conduct and the result Causation provides a means of connecting conduct with a resulting e]ect, typically an injury (or death) Certain o]ences in the Criminal Code required not only that the o]ender commit a prohibited act, but also that the act caused a particular result 34 Criminal responsibility for causation must be established in both fact and law: Factual causation: requires an inquiry into how the victim came to his or her death, in a medical or physical sense, and with the contribution of the accused to that result. In most cases, but not all, a “but for” inquiry answers the factual causation question. If the victim would not have died but for the actions of the accused, that act is a factual cause of death. Once established, the remaining issue is legal causation. Legal causation: the inquiry is directed at the question whether the accused person should be held criminally responsible for the consequences that occurred, or whether holding the accused responsible for the death would amount to punishing a moral innocent. It is informed by legal considerations such as the wording of the section of the o]ence and principles of interpretation. Causation occurs when an act or series of acts (or, in exceptional cases, an omission or series of omissions), consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a su]iciently substantial causal e]ect which subsisted (remain in being, force or e]ect) up to the happening of the event, without being interrupted by some other act or event (from Harbottle case) Smithers Smithers SCC 1978 (manslaughter case) Issue: What constitutes a su]icient cause to create criminal liability? Was the kick a su]icient cause of death to attract criminal liability? The Smithers test for causation applied to all types of homicide – murder and manslaughter (but there is a separate test for ﬁrst degree murder – see Harbottle and Nette) The test (manslaughter case) requires the accused’s act be a contributing cause of death outside the de minimis range (something triﬂing or minor). Thus, the unlawful act remains the legal cause of death even where the act by itself would not have caused death as long as it was beyond de minimis. (Note: wording changed slightly in 2001 SCC Nette case). Issue: was the kick a contributing cause of death to attract criminal liability? Holding: Yes, Note: the accused actions do not have to be the only cause of death Harbottle Harbottle 1993 SCC Standard of causation in the case of ﬁrst-degree murder pursuant to s. 231(5) (constructive murder) 35 Test: essential, substantial and integral cause of the death (known as the substantial cause test) Issue: Was the accused’s participation such that he could be found guilty of ﬁrst- degree murder? Did the Crown prove that his conduct was a “essential, substantial and integral cause of death”? 5-part test (will not be tested on it) Nette Nette 2001 SCC Court reviews the standard of causation for manslaughter, second-degree and ﬁrst- degree murder Upholds the Smithers Test but re-words it to “a signiﬁcant contributing cause” (as opposed to a contributing cause outside of the de minimis range) Harbottle standard for ﬁrst-degree murder a]irmed/upheld: the accused actions must have been an essential, substantial and integral part of the killing of the victim. But what about second-degree murder? What causation standard should apply? To be clear, there is only 1 standard for causation for murder and manslaughter – the Smithers standard. But in the case of ﬁrst degree there are additional instructions for the jury. The court recognizes that causation issues rarely arise in murder o]ences. It more frequently arises in manslaughter cases, in which the fault element resides in a combination of causing death by an unlawful act, or by criminal negligence, and mere foreseeability of death. It tends to arise in factual situations involving multiple parties (Harbottle), thin skull victims (Smithers), intervening events or come combination of those factors. Maybin Maybin 2012 SCC Causation and Intervening events/causes Issue: Was the bouncer’s conduct an intervening event that disrupted the chain of causation? There are 2 di]erent analytical approaches to reconciling the accused’s culpability and the connection between acts and death Both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful in assessing legal causation depending on the speciﬁc factual matrix. These approaches grapple with the issue of the moral connection between the accused’s acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the accused may well not break the chain of causation, and that an independent and intentional act by a third party may in some cases

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