Final Criminal Code Exam Study PDF

The criminal code does not outline all criminal offences in Canada. A person can be convicted in criminal court and sued in civil court about the same matter. Res judicata: cannot be convicted for same matter twice. Stay of Proceedings: a ruling by a court to stop or suspend a proceeding or trial...

The criminal code does not outline all criminal offences in Canada. A person can be convicted in criminal court and sued in civil court about the same matter. Res judicata: cannot be convicted for same matter twice. Stay of Proceedings: a ruling by a court to stop or suspend a proceeding or trial temporarily or indefinitely. Absent evidence to the contrary – take as fact unless proven otherwise. To be an aider, they have to do more than just omit to do something. Strict liability (legal responsibility) [careless driving] vs absolute liability (intent is assumed) [failure to stop at stop sign] General intent: Desire to commit criminal act. Specific intent; desire to commit criminal act for sake of accomplishing another. Stellato: any degree of impairment is enough, need not be a marked departure form the norm. Polutak: Proof of bad driving not necessary. Entrapment: balance of probabilities is the standard of proof. Justification: conduct was wrong but not in the context. Abuse of process remedy = stay of proceedings. Due diligence is defence to strict liability: honest mistaken belief of facts that if true would render act innocent. Rendered all care to avoid committing offence. Strict liability is the same as absolute liability except (intent does not matter, mjst compensate victims) they have right to prove due diligence to the charge. Ex: (convicted whether or not they knew of conditions such as age or speed) - Statutory rape - Selling alcohol to a minor - Traffic violations Excuse: conduct was wrong but certain circumstances negate criminal liability. Air of reality: Pre requisite test against which a proposed defence to a criminal charge is weighed; that any proposed defence must at least have evidential foundation. Type of offence (summary, indictable, or hybrid) determines the court process (jury or not), punishment severity, and preliminary inquiry. Due diligence (strict liability offences defence) In one section, it can outline numerous offences, in which some can be deneral and some can be specific intent. Automatism example: sleepwalking. - Involuntary - More than lack of memory For alibi, do not need to prove reasonable doubt, only air of reality. R. Terlecki – TJ to enter a conviction on one charge and a conditional stay on the other until appeal period over, then acquittal on the other. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. A person cannot raise a defence that they did not understand the law. A general intent offence is an offence where you only ever have to prove the actus reus. In the annotated criminal code, the purpose of the related provisions section is to give you some of the other sections that may be necessary to refer to in order to understand the section you are reviewing. Related provisions is related sections on CC that help you better understand the section in question. What is a subjective test in criminal law? - Evaluates a person’s state of mind, intention, belief, or knowledge at the time of a particular event. Focus on what they knew or believed, rather than what is reasonably assumed form an objective standpoint. - What is state of mind while performing action. Balance of probability is also known as more likely than not. Actus reus and mens rea conditions. Breaking down elements: Actus reus: The person, the manner of execution, execution of element of offence, to another person, harm inflicted, additional elements to offence. Mens rea: Did so knowingly. Presumption of innocence: Where an enactment creates an offence and authorized a punishment to be imposed in respect of that offence… Innocent until proven guilty. The use of the word ‘means’ in the definition section of the CC does not allow for things not referenced here to fall within the definition. With some exceptions, where an offence is mostly committed in another country, it would not be subject to the jurisdiction of the Canada courts. If offence mostly committed in country A, it falls under country A’s jurisdiction. Traemeear’s annotated criminal code also contains other pieces of legislation such as Canada Evidence Act. Duress cannot be used as a defence where the threat is to harm a 3rd party and the party is not in the control of the person making the threat. Mistake of fact would not be a good defence where a person knowingly takes someone else’s backpack. Common law defences are still accepted in court of law regardless of whether they are modified in the criminal code. If the accused raised the defence of an alibi and it is disproved, the court can draw an adverse inference about their other evidence. For the defence of entrapment to be successful, the officer needs to have done more than create an opportunity for a crime to have been committed. They must have also encouraged or prompted it. What does the accused need to prove for defences? What are the three elements of necessity? 1. Imminent peril or danger 2. No legal alternative 3. Proportional harm inflicted than harm done. There is time when it is lawful for an officer to do acts that otherwise may be considered crimes. Count = charge Strict liability offence: mens rea presumed to exist. A defence to a criminal charge is: anything that creates a reasonable doubt in the mind of the decision maker about an element of the offence and anything that demonstrates hat the accused lacked the mens rea or actus reus of the offence. Defence needs to raise a reasonable doubt. A defence is anything that raises a reasonable doubt that any element of the crime may be missing. What are the criminal defences? The case law in the annotated criminal code (not found in actual criminal code) is meant to help explain ambiguous language within the law. When cases contradict each other, you may give more weight to cases of higher courts. Case law explain ambiguous language. SCC takes precedence. Stare decisis. Two categories of elements of the offence are mens rea and actus reus. Mens rea is the guilty act (external circumstances) and actus reus is the mental element proving intent. An aider is someone who assists in some way for a crime to be committed, whereas an abettor is somebody who encourages or promotes somebody to commit a crime. For both cases, the charged can be convicted the same as the person that committed the crime. Counselling is same punishment as if they committed the offence. (is a party) Accessory after the fact (section 23) is when you: 1. Know the person committed a crime. 2. Comforted them. 3. Assisted them in escaping. Not a party to offence. Case law: rules of law set out in court decisions. Types of offences: Summary offence (less serious) o Not explicitly described at indictable. o Trial by judge. o Maximum up to 2 years. o Provincial courts. Indictable offence (more serious, entitled to trial by judge and jury) Hybrid (punishable by either, not both, crown decides) o Treated as indictable until summary election is made. A person is not criminally responsible when they have a disease of mind that made them incapable of appreciating the nature of the act or realizing the act was wrong. Colour of right: Defence of honest belief. Parties to a defence is in section 21. Duress defence: Forced to commit crime. 3 Degrees of intoxication: Mild, advanced, extreme. Extreme: the point of automatism (negate voluntariness of actions) o Defence for non-violent crimes. Subjective test: Whether an act was reasonable given the circumstances. Parties: anyone who commits, aids, or abets commission of offence. - Commits it: Perpetrator/principal. Aiding and abetting general rule: Specific intent – Act must have been intended for aiding the commission of criminal act. Onus: on the crown. Standard of Proof: Beyond a reasonable doubt. Role of: - Police: investigate crime and enforce law. - Crown counsel (prosecution): agents represent public interest. Prove elements of offence (mens rea and actus reus beyond a reasonable doubt). - Defence counsel: Raise a reasonable doubt. - Judge: deciders and application of law - Judge & Jury: Jury hears evidence and decides outcome, judge aids them in applying law and sentences. Sections of the CC: - Create offences. - Set out punishments. - Create defences. - Outline processes. 4 sections of criminal code: Offences, punishments, defences, processes. Key Terms: bodily harm: means to hurt or injure another person. Complainant – victim of alleged offence. “count” – charge in an information or indictment. “day” - between 6 am and 9 pm. “dwelling house” – whole or part of building kept occupied as residence. “highway” – road for public “mental disorder” – disease of the mind. “night” – 9pm to 6am “offender” – person determined by court to be guilty of an offence (by find or plea) “peace officer” – mayor, warden, police, correction services, jail guard, prison employee, bailiff, immigration officer, fishery guard, pilot, etc.  “unfit to stand trial” – unstable of the account of mental disorder to conduct a defence at any stage of the proceedings. “weapon” – anything that used, designed to be used, or intended to be used in a manner causing death or injury to any person, or for the purpose if threatening any person. Legal presumption: “shall be deemed”. - Shall be deemed indicates a legal presumption. Jurisdiction: “Notwithstanding anything in this Act or any other Act, everyone who, outside of Canada…” Saying that outlines jurisdiction is notwithstanding anything is this act or any other act, everyone outside of Canada… ‘Contempt’ is only common law offence – when public defiance of the court order to bring administration of justice into disrepute or behaviour intended to disrupt, hinder or delay court process. Ignorance of law is not a defence. - Except for officially induced error - Mistake of law no exception - Mistake of fact/colour of right may be a defence. Defences: Abandonment: o Used as a defence when charged with aiding and abetting. o Shows that they tried to abandon the criminal act before it took place. o Must show the intent to withdraw form unlawful activity, communicated intent in a timely way, communication was clear, and took steps to cancel out their participation. Abuse of Process o Where existence of ulterior purpose/motive underlying the use of legal procedures, or the use of the legal process is not proper in regular prosecution. (e.g., police misconduct) o Test: Would the continuation of the matter in the circumstances bring the admin of justice into resrepute? Accident o Unintended act (actus reus) and consequence (mens rea) o Because criminal responsibility requires ‘voluntary’ conduct which an accident is not (Primeau c. R. p. 43) o Defence establishes air of reality; onus then shifts to P to disprove. § whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.  § Air of reality test for accidents. Alibi o They were elsewhere. o Goes to element of proving identity. o Notice must be given to prosecution. o D’s alleges in some other place at the time of the crime so no “window of opportunity’ to commit offence (R. v. Allen) Duress o Forced to commit crime (disprove intent – mens rea) s. 17 Compulsion by Threats o Threat of immediate harm from someone present at time of offence. Intoxication (per s.8) & s. 33.1 o Mild drunkenness § Not relevant at law (not defence) o Advanced intoxication § Not defence to general intent offences § Only defence for specific intent offences § Impairs foresight of consequences to actions. o Extreme intoxication akin to automatism § Negates voluntariness and may be a compete defence. § Extremely rare and limited to non-violent offences. o S. 33.1 § Law changed in 2022 for violating charter. § Self-induced extreme intoxication: Full defence where a reasonable person could not have foreseen the risk that they could violently lose control when they consumed intoxicant and did not take steps to prevent the risk. s. 16 NCR (mental disorder) o At the time of act, person was suffering from mental disorder, severe enough that it rendered them incapable of appreciating nature of act and that it was wrong. o Legal presumption – not everyone is mentally disordered. Entrapment o Police officer provides a person with an opportunity to commit crime without reasonable suspicion that person already engaging with criminal behaviour. o PO does more than create opportunity – indices it. o Mere solicitation is not enough. o Balance of probabilities. o Remedy = stay of proceedings. Mistake of Fact o Honest belief o Requires existence of facts/circumstances that if true would make act innocent. Necessity o Had no other choice. o Compliance with law be impossible.  Non-insane automatism o State cannot be self-induced. o Lack of memory not enough. o Must be existence of state that cause involuntary behaviour. Automatism: Inability to control oneself. s. 25 Acting under Authority o If authorized by law as a person or officer in aid of above because of office and acts on reasonable grounds. o Justified to do what is required and using as much force necessary to do it. o If causes death, must be necessary. s. 34 Defence of Person (self-defence) o Protect one’s body from force of threat. s. 35 Defence of Property o When somebody is about to take or damage property, act is to prevent it. s. 43 Correction of Child by Force o Force is justified if it is to correct child and does not exceed what is reasonable. Cases: Quizlet: https://quizlet.com/ca/344213386/case-law-flash-cards/ R. v. Brooks (1988), 64 C.R. (3d) 322, 41 C.C.C. (3d) 157 (B.C.C.A.) C was driving in a motor home with family when they encountered D driving a jeep on the same road. As both approached railway, C passed D. D began to drive extremely recklessly. Looks at if D could have reasonably foreseen death or injury could have occurred. R. v. Briscoe – Willful blindness: an active process of suppressing a suspicion (substitute for actual knowledge) Actus reus for being a party was proven but not mens rea. D drove a group to abandoned golf course, D handed wrench to L, L then beat girl to death with wrench. D told girl to shut up. D originally acquitted, new trials order on account of D being willfully blind R. v. Deutsch (Deutsch v. The Queen, 1986 CanLII 21 (SCC), 2 SCR 2) Preparation vs attempt What constitutes "mere preparation"? the holding out of large financial rewards for the applicants could satisfy the actus reus of an attempt to procure the women to have illicit sexual intercourse contrary to section 212. general, the actus reus for attempt must be some step towards the actual commission of the crime that goes beyond mere acts of preparation.  The actus reus for attempt must be some step towards the actual commission of the crime that goes beyond mere acts of preparation. (his offering of financial rewards counted as a step) R. v. Curran Curran was not participating but was there? Encouraged his friend to commit murder. Actus reus of being at the scene is not enough for aiding and abetting – must have committed an act that actually aids or encouraged. R. v. Gauthier G charged as party to murder children with spouse. What communication to withdrawal from criminal act timely? Abandonment defence – available to an accused who is potentially liable as a party of an offence under s. 21(1) or 21(2) with one or more other participants but has abandoned the common intention to commit the offence before its completion. This interpretation found that “the accused must show that he or she took reasonable steps to neutralize the effects of his or her participation. Failed to meet air of reality test. Defence should only be put to jury if there is evidence defendant took reasonable steps to neutralize effects of their participation in commission of offence. SCC dismissed the appeal. R. v. Ruzik Man threatened to kill R’s mother if she did not smuggle and deliver heroin to a restaurant in Canada. Charged with possession of a false passport and importing narcotics. Raised the common law defence of duress and was acquitted. Does the common law defence of duress require immediacy and/or presence? moral voluntariness is a principle of fundamental justice protected under section 7, it is required for criminal liability. She was not found guilty. r. v. Ahmad Entrapment / Abuse of Process authorities must not provide an opportunity to commit an offence without acting with reasonable suspicion or as part of a bona fide inquiry. Information came from a “tip” (can’t confirm if this is trustworthy, so did the police have reasonable suspicion before calling the phone numbers? But the majority said Mr. Ahmad wasn’t entrapped because police developed a good reason to suspect he was selling drugs while talking to him on the phone.  The police had not posed questions to Mr. Ahmad about the specific sale of narcotics until they had confirmed the information provided by the CI. Once this was completed, the officers only then discussed the type and amount of substances Mr. Ahmad was selling. This slight difference resulted in the SCC upholding the conviction rendered by the Court of Appeal. R. v. Tatton p.34 - General Principles Intoxication Self-induced intoxication (short of automatism) is no defence to a crime of “general intent,” although it may be admissible as a defence to a crime of “specific intent.” whether arson constituted a specific intent offence, so as to permit the accused to rely on his state of intoxication as a defence to his charge While cooking bacon in a self-induced state of heavy intoxication, Ryan Tatton left his girlfriend’s house to get a coffee from Tim Horton’s. With the stove left on “high,” the house caught ablaze, and Tatton was ultimately charged with arson. specific intent crimes are those where the mental element involves some sophistication of thought, to the point that intoxication may negate the existence of a guilty state of mind. SCC overruled lower courts and found arson to be general intent. R. v. Polturak - Who should be able to testify as to whether someone is impaired or not? P charged with operating a motor vehicle while impaired by alcohol or a drug - based on observations made by police officers regarding the Appellant's driving pattern and demeanor following his arrest Questions whether the Trial Judge erred in accepting and relying on the opinion evidence of non-experts (police officers) regarding the Appellant's impairment by a drug and whether proof of bad driving is necessary to sustain a conviction for driving while impaired. The charge focuses on the impairment of the driver's ability, not the quality of driving. He was convicted. R. v. Stellato - How ‘impaired’ must a person be? Was there was enough proof to show he was actually impaired when he was behind the wheel? The court found that any degree of impairment, whether slight or great, was sufficient for a conviction. Concluded marked departure from normal conduct was not necessary to prove impairment. Appeal dismissed at Ontario court of appeal (he was convicted) R. v Kowlyk - Doctrine of recent possession: Judge may infer guilt.  Possession of stolen property is a charge that results from having property knowingly obtained through crime in your control - not relevant whether you were the one who stole the property, but simply whether it is in your possession, and you knew it was stolen. Doctrine of recent possession – if the accused was found in possession of a recently stolen item, the court may be permitted to infer the accused knew the item was stolen and infer that the accused was involved in the underlying theft of the item. Conviction upheld. Not enough evidence or explanation of other way he came into possession of item. Doctrine of recent possession: "If the prosecution establishes the fact of theft and the fact of recent possession by the accused of the stolen goods, then, in the absence of any evidence to explain how the accused obtained possession of them, the jury may convict the accused." Crown must establish: 1. that the accused was found in possession of the item. 2. that the item was recently stolen. R. v. Newell - Difference between s.343(a) & (b)? N entered a supermarket, placed a quantity of meat in a hand basket, and left without paying (committing theft), but then, an officer confronted him outside the store, to which N dropped the basket, tussled with the officer, and swung a knife at him before fleeing. Question: Whether the appellant's actions constituted robbery or merely theft. Outcome: The conviction for robbery was set aside and substituted with a conviction for theft Theft vs. Robbery: The violence used by the appellant occurred after the theft was complete and was not for the purpose of extorting the stolen goods or overcoming resistance to the stealing, as required by section 343(a) of CCC. Theft was already complete when he left the store. Neither a or b because violence was after the theft and violence was not against person item was stolen from. 343 (a) vs (b) Everyone commits robbery who… (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property. Violence must be for the purpose of stealing, not to escape. (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person. Violence must be against person item is stolen from. R. v. Ausland – Break and entering. https://www.canlii.org/en/ab/abca/doc/2010/2010abca17/2010abca17.html?resultId=37889ab2b8 fc47f48c558781ff383e0b&searchId=2024-10- 12T16:43:56:554/d5337cef60e8402badbe8bf084752337#summary The appellant, Kevin Ausland, was convicted for break, enter, and theft at Rona Distribution Ltd.'s overflow yard, an unfenced former parking lot used for storing trailers. On September 7, 2007, two men, including Ausland, were observed attempting to steal a trailer from the yard. They cut through a chain securing the yard but were apprehended by police before they could remove the trailer. Ausland was charged and convicted of breaking and entering a place and committing theft therein, as well as theft over $5,000, though the latter conviction was stayed under the principle set out in R. v. Kienapple. Ausland was acquitted of another theft charge related to the tractor unit (paras 1-3). Whether an unenclosed parking lot constitutes a “structure” within the meaning of section 348(3) of the Criminal Code, defining a “place” for the purposes of break and enter charges. Whether the evidence established theft or an attempted theft of the trailer by the appellant. Not convicted of break and entering. the trial judge erred in convicting the appellant under section 348(1) of the Code by finding that the unenclosed storage yard was a “place”. This was considered an error of law as it involved an interpretation of what is meant by the word “structure” in the statutory definition of a “place”. The Court concluded that to extend the meaning of “structure” to include unenclosed spaces like the yard in question would go too far and rob the word “structure” of any effective meaning. R. v. Vinokurov (2001), Alta. C.A. 113 The appellant, the manager of a pawnshop, was charged with seven counts of possession of stolen property after receiving items from a customer, which were the proceeds of break and entries. The appellant denied knowing the items were stolen, asserting he completed necessary paperwork and consulted with his mother, the store owner, on the purchases. The police identified stolen merchandise at the pawnshop, which the appellant had listed on pawnshop sheets and forwarded to the police. The trial focused on whether the appellant knew the merchandise was stolen (paras 2-5). All prohibited acts in c9rminal law must be done intentionally or recklessly with full knowledge of the facts constituting an offence or it wilful blindness to them. Recklessness: Sees the risk and still takes the chance. (something less than wilful blindness) (not negligence) - Awareness of risk or danger - Choice to persist in conduct that causes that risk. - Reckless cannot satisfy an offence that requires knowledge as an essential element to the offence. Wilful blindness: - Aware of need or inquiry - Deliberate decline to do so. R. v. Hewitt – rights against property. - Wilfully blind on stolen nature of cars. Libman. V. R. Significant portion of actives constituting the offence must take place in Canada. Briscoe Drove people to golf course in Guilty of wilful blindness (wilfully which they beat little girl blind driver) Brooks Reckless driving then fought on (road rage road will other was hit. assault) Deutsch Holding out of financial reward to Guilty of attempt. (attempt illicit sexual intercourse. illicit sex) Curran Present when friend murdered Not guilty of aiding and abetting. (aiding person. friend murder) Gauthier Murder children with spouse. Guilty – abandonment defence not upheld (mom due to failure to meet air of reality test. abandon murder) Ruzik Mother threaten if drugs not Appeal not allowed due to duress (Drugs smuggled. defence. The requirements meant the smuggle defence was unavailable in situations duress) where the threat is to a third party or involves harm in the future. Ahmad Police tipped about his selling Found guilty, entrapment defence not drugs. upheld.  (drugs police entrapment) Tatton Arson from leaving house while Arson general intent, automatism defence (drunk drunk cooking. not upheld. cooking arson) Polturak Impaired driver not displaying Marked departure from norm not (impaired improper driving ability. necessary for conviction. Proof of bad good driving not needed. driving) Stellato Impaired driver not displaying Can be convicted under any degree of (impaired improper driving ability. intoxication. good driving) Kowlyk Possession of stolen property. Guilty due to doctrine of recent (possession possession. stolen goods) Newell Robbery or theft in supermarket. Guilty of theft, not robbery sections under (supermarket Assaulted officer when escaping. conditions. robbery escape) Ausland Vinokurov Hewitt Annotated Criminal Code: Parts – The Code is divided into parts by theme Sections – This is the actual law u o Subsections § Clauses Ex: Crime S. 1 (5) crime (a) Section 1, subsection 5, clause a. Number of offences created in section are counted down to the amount of clauses. Types of sections: General (ex: definitions), offences, punishment, defences, process. Commentary – Not the law but the discussion of the law by the authors of the annotated version Case Law – Outlines important cases (judicial decisions) relevant to that section, often grouped by theme  Related Provisions – Outlines the other sections of the CC that are related to this section Specific vs General Intent General intent: requires only intent as it "relates solely to the performance of the act in question". o Only intent for commission of act. o Distinguished from accidental acts or honest mistake acts. o Ex: Purely physical acts. o Self-induced intoxication defence for available. o Mens rea absent in definition of section, presumption of intent, thus is general. Specific intent: involves "the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act. o Ulterior intent. o State of mind contemplating consequences beyond those defined in actus reus. o Focus on objective further to the immediate one at hand. o Words such as willfully, with intent to, for fraudulent purposes, corruptly, knowingly. The Weary Driver (not accurate) Charged with dangerous driving causing bodily harm. His dangerous driving was a result of been tired, not by being intoxicated. R. v. Shanks (the cat attack)… Manslaughter: He did not intend to kill the man. Strict Liability: Mens rea is assumed. Defence of due diligence. Children under 12? For the purposes of this act: lays out elements of crime. Notwithstanding anything in this act: the exceptions What level of government has been granted jurisdiction over criminal law? - Federal Government. what is quasi criminal law? - Laws that resemble criminal law but typically involve regulator offences under provincial or municipal statutes (e.g., traffic violations and environmental infractions). Punishment is typically fines or penalties rather than imprisonment. What does the term onus mean? - A legal term meaning burden of proof, resting on the prosecution to prove case beyond a reasonable doubt. What is the difference between general and specific intent? - General intent refers to committing an act knowingly, without needing a specific purpose or motive (e.g., assault). - Specific intent requires the accused to have a further purpose or intent beyond the basic act (e.g., theft requires an intent to permanently deprive someone of their property) Is it possible to have no intent and still be found guilty of committing a crime? - Yes, under strict liability and absolute liability. What is the difference between strict and absolute liability? - Strict liability allows the accused to provide a defence of due diligence (proving they took reasonable care) - Absolute liability offers no defence, mere proof of the offence results in guilt. What does one have to do to be considered an accessory after the fact? - A person must knowingly assist something who has committed a crime. What must the crown prove in order to find the accused guilty of an attempt? - Crown must prove the accused had the specific intent to commit the crime and took a significant step beyond mere preparation towards its commission. What is an arraignment? - A formal court proceeding where the accused is read the charges and asked to plead guilty or not guilty. What must a defence have to be put to jury? - The defence must provide evidence that raises a reasonable doubt about one or more elements of the offence or introduces a valid legal defence. What is the punishment for 1st degree murder? - Life, no parole for 25 years. Under what condition is a murder considered 2nd degree murder? - If it is not planned and deliberate. Under what condition is a person not guilty or murder according to s.227? - Medical assistance when dying. What is the mental element required for criminal negligence under s.219? - Objective foresight of risk. o The accused actions demonstrated a marked/substantial departure form the standard of care expected of a reasonable person in the circumstances. o A reasonable person would have foreseen the risk of harm caused by the accused’s conduct. § Does not require subjective intent or awareness of risk, only requires objective foresight and whether the conduct showed reckless disregard for the lives or safety of others. In case of R. v. Leclerc, what is stated about consent? - Consent is not a defence when force is intended to cause bodily harm. - Victim consented to participation of BDSM activities, she did not explicitly consent to the degree of harm inflicted, plus coercion. What is punishment for 2nd degree murder? - Life, no parole for 10 years. Under what condition is murder assumed to be 1st degree? - It is contracted. What mental element required for criminal harassment? - S. 264. - Subjective intent or recklessness. o Knowledge or recklessness about causing fear. § Knew their behavior would cause the victim to fear for their safety, or. § Reckless as to whether their behaviour would cause such fear. o Intent to engage in the prohibited conduct. § Intentionally engaged in behaviour such as stalking, repeatedly communicating, or threatening conduct. What must be proved for an assault charge under s.265? - Actus reus and mens rea: o Application of force, attempt or threat, non-consensual act. § Force does not need to cause injury. o Intent or recklessness (general). - Defences: o Consent: Victim consent (e.g., sports) may negate the offence unless the consent is vitiated by fraud, force or other factors. What needs to be proved for a fraud charge under s. 380? - Actus reus: o Deceit, falsehood, or other fraudulent means: The accused used dishonest actions, misrepresentations or schemas. This can include deliberate lies, omissions, or any conduct intended to deceive. o Deprivation: the fraudulent act causes actual loss, risk of loss, or deprivation of something of value (e.g., money, property, services). - Mens Rea o Intent to deceive: Deliberately engaged in dishonest conduct with purpose of misleading someone. o Knowledge of potential deprivation: Accused either knew or was reckless as to whether their actions would result in loss or harm to another party. - Exceptions: o No dishonest intent: Negates mens rea. § Honest belief the accused believed their statements/actions were truthful and did not intend to deceive or cause deprivation. § Mistake of fact (misunderstanding terms of agreement) with no intent to deceive. o Consent/authorization.  § Victim was aware of risks/consequences (unless consent was obtained through deception). § If accused acted within their legal rights or under proper authorization. o Puffery/exaggeration. § Obviously exaggerated statements (e.g., “best in the world”) typically don’t amount to fraud unless they cross into deliberate falsehoods about material facts. o No deprivation or risk of deprivation. o Defences: Duress or Entrapment Fraud is hybrid offence, depends of the amount deprived from victim. - Indictable: o Value exceeds $5000 (up to 14 years) o Under $5000 (up to 2 years) - Summary: o Under $5000 (6 months or $5000 fine) What is the difference between culpable and non-culpable homicide? Culpable: Death caused by an act or omission where person is legally blameworthy. § Murder (specific intent) § Manslaughter (general intent) § Infanticide Non-culpable: Death cause without legal blame, accused not held criminally responsible. o Justifiable: authorized or ordered by law (e.g., solider) o Excusable: self-defence, defence of others/property, accidental when doing lawful act. What is difference between homicide [s.222(1)] and culpable homicide [s.22(5)]? - Homicide is general term encompassing all death caused by human actions, whether lawful or unlawful, whereas culpable homicide refers to unlawful or criminally blameworthy acts that leads to death. In R v. Maybin, did D’s dangerous and unlawful acts significantly contribute to cause V’s death? Two step test: o Significant contributing cause test: Crown prove accused dangerous/unlawful acts significant contributed to death of victim. § Accused’s actions need not be sole or direct cause of death, but they must be more than trivial or insignificant.  o Intervening cause analysis: If 3rd parties actions contributed to the death, court must determine whether: Does their involvement sever link or is original act still contributing factor? § Intervening act was reasonably foreseeable as a result of the accused’s original actions. § The chain of causation between the accused’s conduct and the death was broken by the third-party action. Outcome: Found the brothers guilty because their actions were a significant contributing cause to the victims death and their assault set the events in motion to which the third party’s actions were reasonably foreseeable. Can an act be murder if you did not mean to kill the person? - Yes: o Recklessness: Knowledge of probable death (e.g., shooting into crowd) o During commission of another offence: Intent to kill replaced by intent to commit underlying offence combined with harm. o Transferred intent: Accidently killing one person when meaning to kill or seriously injure another, intent transfers. [s.229(b)]. § Can intent transfer if you had authority for killing the intended person (ex: a terrorist) but accidentally kill a bystander (ex: a hostage caught in crossfire)? Does not apply if intended kill was authorized, the focus shifts to whether the accused acted recklessly or negligently. o Unintentional killing elevated to murder: Intend to cause serious bodily harm and death results. For first degree murder, what are the assumptions that an act can be established as ‘planned & deliberate’ under s 231? - (3) Contractual agreement (hired to kill or paid someone to kill) - (4) Murder or police/peace officer or public official. - (5) Committed during certain offences (e.g., assault, kidnapping, hostage-taking, etc.) - (6) Committed during aircraft attack (e.g., bombing or hijacking plane) - (7) Involving criminal organizations. Is manslaughter explicitly defined in criminal code? - No What is provocation in relation to section 232? - Partial defence that reduced murder to manslaughter. - Acknowledge a person may lose self-control in face of significant provocation. - Elements: o Sufficient provocative act from relevant person to victim or victim themself. § Not all insults/act qualify.  o Loss of self-control without time to regain it (heat of passion). o Connection between provocation and act (e.g., response to it) - Standard: o Objective test: Determine whether the act/insult would cause an ordinary person to lose self-control. o Subjective test: Assess whether the accused personally lost control in response to the provocation. R. v. Thibert: - Wife having affair – confronted the mistress (victim) – victim taunted accused to feel humiliated – shot and killed. - 2nd degree reduced to manslaughter. What is the minimum punishment for murder? - Life. What is the minimum punishment for manslaughter with firearm? - 4 years. Is criminal negligence summary or indictable offence? - Both Indictable (see below) What are the two offences for criminal negligence and their maximum punishments? - Criminal negligence causing death (life) and criminal negligence causing bodily harm (10 years). What is the mens rea for criminal negligence? - Wanton/Reckless disregard - Objective: measured against standard of a reasonable person. Is criminal negligence specific or general intent? - Neither. It is based on objective standard of conduct rather than actual state of mind. Simple negligence: - Exception. - Presumes that accidently/inadvertent actions are not criminal unless marked departure is substantial. - R. v. Leblanc: Found that accused actions did not amount to wanton or reckless disregard and this fell short of criminal negligence. Legal duty must be imposed by law (statutory obligation, common law, etc) R. v. Coyne – duty to safely store firearms (Firearms Act) and care for children (s. 215 CC) – breached these legal duties (e.g., leaving firearms accessible to children) – found criminally liable. Is criminal harassment summary, indictable or hybrid?  - Hybrid o Summary (2 years max and/or fine) o Indictable (max 10 years) Is intent to cause fear required for a conviction of criminal harassment? - No, recklessness suffices. Is criminal harassment general or specific intent? - General. Intent to commit prohibited acts in ss.2. R. v. Sanchez found guilty of criminal harassment. When is consent not consent? - When accused intends and causes serious bodily harm. - Victim does not resist. - Victim dies. - It is obtained through fear/coercion or fraud/deceit. - Victim is incapable of consenting (e.g., intoxication, unconsciousness, mental incapacity, etc.) - Exceeds the scope of what was agreed. - Given by force, threats, fraud, exercise of authority. Is assault with a weapon or causing bodily harm general or specific intent? - General. Intended to apply force but not necessarily resulting in harm. - Hybrid. Aggravated assault: summary, indictable, or hybrid? General or specific? - Strictly indictable: (Max 14 years) - General. No need to prove intent of specific injuries that occurred. What must harm meet for aggravated assault? - Wounds: Injury causing bleeding or break in the skin. - Mains: Loss of or permanent impairment of body part or function. - Disfigures: Visible and lasting altercations. - Endangers life: Life-threatening injuries (e.g., internal bleeding, head trauma, etc.) Can consent be a defence of aggravated assault? - No. Assaulting a PO? - Hybrid. o Summary: Up to 2 years. o Indictable: Up to 5 years. - General. Actus reus of assaulting a PO? - PO must have been acting in the lawful execution of their duties. o R. v. Corrier: PO was acting unlawfully (illegal arrest) therefore accused was not guilty of assault. § Note: Response must be reasonable/proportional to the situation. § Burden on the crown to prove PO acted lawfully. S. 271: Sexual Assault - Persons under 16 - Persons 16 and above o Both Hybrid. Consent in matter of sexual assault: - Belief of consent not a defence. o Honest but mistaken belief in few circumstances. - Not a lack of saying no. What makes an assault in a sexual nature? - Anything that violates the sexual integrity of the victim. - Circumstances to be considered: o Body touched. o Nature of contact. o Situation in which it happened. § Victim’s lack of clothing may suffice. o Word/gestures accompanying the act. o Threats and other accompanying circumstances. o Intent/purpose of person committing act. § Sexual gratification not required. Is intoxication a defence for sexual assault? - No, because it is general intent. R. v. Dirksen? - Actions and interactions between accused and complainant before and after the assault can shed light on whether the interaction was consensual or coercive. R. v. Gallie? - If the accused shows pornography to the complainant before or during the incident, this may indicate sexual purpose or invitation for sexual activity. Evidence of sexual motivation. R. v. Farouk? - Evidence of earlier attempts at sexual interactions with other women shortly before alleged assault relevant in proving sexual purpose. R. v. A.R.D.? - Irrelevance of post-incident behaviour: Victim’s lack of avoidant behaviour or change in demeanor after the assault irrelevant and cannot be used to undermine credibility. Evidence of sexual history typically inadmissible due to risk of perpetuating myths/stereotypes. - Unless o It is highly relevant. o Has significant probative value. o Is not used to support inferences about consent/credibility. Aggravated Sexual Assault: - Indictable. - General intent. What is consent? - Voluntary agreement to engage in a specific activity at time activity takes place. - 2 Aspects: o Subjective Consent – actual consent. § Voluntary. § Mental capacity. § Affirmative. o Consent is effective as a matter of law – accused’s perception. § Reasonable belief based on words of conduct. Can consent be withdrawn during a sexual activity? - Yes. What is not consent? - Consent induced by position of trust, power, or authority. - Given by somebody else. - Victim is unconscious/incapable. - Etc. Consent not a defence when victim is under 16. - Exception: Mistake of age. What is sexual interference? - Sexual acidity with individuals under the age of consent (16). - Hybrid offence. - Mens rea: Specific Intent o Knowledge or recklessness regarding age: Under 16. o Sexual purpose: Intent to derive sexual gratification. - Exceptions: o None o Or Close in Age Exception: (all must apply) o Complainant is 14 or 15 years old.  o Accused is less than 5 years older. o No relationship of authority, trust, or dependency. Sexual Exploitation - Sexual acidity between adult and young person when there is a relationship of trust, authority, dependency or exploitation, even when young person ‘consents.’ o Young person: 16 or 17 years old. - Hybrid offence. - Actus Reus: Sexual activity and relationship outlined above. - Mens rea: Intent to engage in sexual activity and awareness (or recklessness) of relationship context. o Specific intent. - Consent not a defence if there is exploitation. s. 486 Exclusion of the Public: Premise that trials be held in open court. - Charter s.11(d) p. 1942; ‘fair & public’ hearing - Exceptions: (temporary) o If in interest of public morals, maintenance of order or proper admin of justice. § If jury vetted for bias. § If case is sexual – in order to preserve victim dignity. o If necessary to prevent injury to international relations; national defence/security. - Factors to consider ss.2 (a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings; (c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made; (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (e) the protection of justice system participants who are involved in the proceedings; (f) whether effective alternatives to the making of the proposed order are available in the circumstances; (g) the salutary and deleterious effects of the proposed order; and (h) any other factor that the judge or justice considers relevant. Publication Ban - Judge may make order that info that can identify victim or witness shall not be published in any doc or broadcast in any way. - Any victim or witness under 18 must be informed by judge of their right to seek ban. o If requested, judge must obey order. Searches with a warrant is presumed to be reasonable. Searches without a warrant are presumed to be unreasonable unless they fall under specific exceptions. Warrant requires: - Reasonable/probable grounds to believe offence has been committed. - Specificity regarding the place to be searched and items to be seized. - Sworn in an affidavit before a judge or justice of the peace. Pain View Doctrine: if clearly illegal items unrelated to the warrant are discovered in plain sight during a lawful search of a location, they may be seized as evidence. - R. v. Jones – it did not hold up. o Infringed S. 8 of Charter. A warrant must be executed by a peace officer or authorized individuals specified in the warrant. Section 8 of Charter: Any search or seizure must be reasonable which depends on: 1. Did person have reasonable expectation of privacy? 2. Was search an unreasonable intrusion of that privacy? - Scope and manner of the search. - Whether it was proportionate to the offence under investigation. - The level of intrusion on privacy rights. Consent waives right to privacy. Even if charter right is infringed, evidence can still be admitted. 3 part balancing test to determine admissibility of evidence obtained through charter breach. R. v. Grant – Evidence of firearm and drugs was admitted. What form to apply for a search warrant? - Form 1. What form to issue a search warrant? - Form 5. s. 487.05 – Information for warrant to take bodily substances for forensic DNA analysis. - Reasonable grounds offence committed. - Bodily substance found or obtained. - Any number of samples. - Reasonably required. - Ss (3) telewarrant. 489(1) – Seizure of things not specified. - May seize. - Anything in addition to things specified. - That believe on reasonable grounds… What section of the criminal code deals with sentencing? - Section 716 to 751. What is the purpose of sentencing? (DDSRRR) - Denounce - Deter - Separate - Rehabilitate - Repair - Responsibility R. v. Clarke: - Early guilty plea in sentencing considerations. o Courts must weigh factors like guilty pleases against seriousness of the crime and societal interests. o Sentencing is not formulaic; judges retain discretion to tailor sentences within established parameters. o The principle of parity does not demand identical sentences but ensures fairness by considering the unique circumstances of each case. - Changes to sentencing laws or guidelines do not affect cases where the offence was committed before the legislative change, unless new legislation explicitly states otherwise. o Protects individuals from being subjected to harsher penalties introduced after their crime. Concurrent Sentencing: Sentences for two or more offences are served at the same time. Offender serves the longest single sentence with the time for other offences overlapping. - Sentences are presumed to be concurrent unless the law specifies otherwise, or the court orders it. - Likely for same event. Consecutive sentence: Sentences for two or more offences are served one after the other (serves full duration) - Sentences must be consecutive if: o Multiple offences involving multiple separate victims. o Breaches of parole or conditional release. - Likely for separate and/or more severe events. - Ensures sentence reflects the total harm caused. - Should not be unduly long. Sentencing - Uniformity of Sentences < Uniformity of Approach. - Focus on what offenders have done and not what they might do. - Not revenge.  - Personal Beliefs not to influence. - Balance of objectives. - Hearsay evidence is admissible. Minors can be liable to adult sentences in certain circumstances. The difference between the legal concept of wilful blindness & recklessness is that: wilful blindness refers to suspecting something but ignoring it while recklessness refers to being reckless as to results. In the Annotated Criminal Code the purpose of the Commentary is which of the following: to outline the elements of the offence in a way that make the section more easily understood;