Philosophy 2080 Criminal Law-2 PDF

Intro to Criminal Law -​ Criminal law considered to be public law -​ State prosecutes case, so “parties” to criminal law suit are rest of us v the accused ​ Criminal law most severe way society expresses disapproval of conduct, any crime is crime against the state → Not only puni...

Intro to Criminal Law -​ Criminal law considered to be public law -​ State prosecutes case, so “parties” to criminal law suit are rest of us v the accused ​ Criminal law most severe way society expresses disapproval of conduct, any crime is crime against the state → Not only punishes convicted defender, but to deter accused person and members of society at large ​ Called general deterrence, directed towards public ​ Victim or complainant is state’s principal witness, they are no more litigant then the state → Not in hands of victim to drop charges - up to crown attorney (state’s lawyer) and police to decide if charges are pursued ​ Two points here: 1.​ Crown may not persecute because principle witness reluctant to give evidence, reluctant witness can be subject to penalty for not cooperating 2.​ Possible to swear “private information” if person tells police they’re a crime victim and police do not pursue charge, police have to swear to “information” document, crown office still has some say -​ If state pursues, victim is a witness Presumed Innocent until proven guilty -​ Accused person not a compellable witness in his own criminal proceeding, all people innocent until proven guilty ​ No common law criminal offences in Canada → Codification best strategy because when accused of crime, that person suffers from negative stigma, temptation high to believe worst of someone -​ Law responds to level playing field and institutionalize presumption of innocence ​ To ensure accused have best chance at law to guard wrongful conviction, all common defences remain -​ An accused person might be able to argue being forced to do a criminal act against their will: called a “duress” -​ There are both statutory and common law defences Doctrine of Strict Construction -​ Another means by which accused protected from wrongful conviction, contains two propositions 1.​ Criminal code to be interpreted narrowly, or strictly to catch less activity rather than more 2.​ If there is any ambiguity in the code, ambiguity to be resolved in favour of accused person ​ Codification assists the accused, who also has right to remain silent ​ Many procedural rights granted to accused person understood as “Due process” ensure state acts correctly at all times Why so many protections for the accused and apparently nothing for the victim? -​ Unlimited resources for the state to prosecute its case ​ Crown has to prove its case, crown has onus of proof, to prove case beyond reasonable doubt → Punishment one of the primary objectives of criminal law, punishment is retribution or revenge An Eye for an Eye? -​ Does not justify certain punishments, nor applicable in an ordinary sense Elements of a crime -​ A criminal offence has certain elements that must be proven. They are: ​ Actus Reus: Act that constitutes a crime, positive act or omission, failure to act when having responsibility to do something. Must be voluntary act ​ Mens Rea: The guilty mind, an accused person must intend to do the act that constitutes a crime, varying degrees of intention required to commit different offenses -​ Without blameworthy or guilty mind, no commission of a crime ​ Causation: Some offences require a result. An assault does not require injury for conviction, but assault causing bodily harm requires some injury, homicide requires death Week 2 Cases: Capacity Case: Regina v Parks Lamer CJC Dissenting: -​ Attacks parents in law, killing mother in law with knife, seriously injuring father in law, occurred while they were sleeping, respondent went by car told the police: “I just killed someone with my bare hands. I’ve killed someone, I've killed two people with my hands, I stabbed and beat them to death it's all my fault” -​ Trial judge put defence of automatism to the jury, which acquitted first degree murder and second degree murder, and attempted murder Respondent: -​ Presented defence of automatism: (He was sleepwalking at the time) ​ Respondent slept very deeply, had trouble waking up, year prior was stressful, worked 10 hrs a day and had financial problems, to obtain money stole 30k → Parents in law always supported him, excellent relations with them always got along, whole family has history of sleep issues → Charged with first degree murder and attempted murder ​ COA unanimously upheld the appeal: COA relied on definition of “disease of the mind” -​ Gilligan JA concluded for disease of the mind, must be caused by illness, a disorder or abnormal condition: For insanity plea, sleepwalking had to be the cause of respondents state of mind. Not what the court held → COA dismisses appeal Issues:  -​ Did Ontario COA hold that the condition of sleep-walking should be classified as non-insane automatism resulting in acquittal instead of classified as “disease of the mind?” → Does this give rise to a special verdict of not guilty by reason of insanity? ​ “Disease of the mind” is a legal term, not medical term -​ Contains substantial medical component as well as legal or policy component Legal policy component relates to A.​ Scope of exemption from criminal responsibility B.​ Protection of the public by control and treatment of persons who caused serious harms while mentally disordered or disturbed state -​ Martin JA: “Sleep-walking in separate category, unconscious behavior state of somnambulism, non-insane automatism” Other Facts: -​ Respondent was sleep-walking at the time of incident -​ Sleep-walking not a neurological, psychiatric or other illness, very common in children and adults -​ No treatment as apart from good health practices ​ Actus Reus and Mens Rea missing: (No voluntary act, or guilty mind) La Forest J -​ Automatism a subset of voluntariness requirement, part of actus reus component of criminal liability Result: -​ Acquitted of both, sleepwalking in this case not a mental disorder requiring confinement -​ Non-insane automatism: Parks bares no criminal responsibility Policy for Disease of the Mind 1.​ Continuing Danger: any possibility of recurrence = disease of the mind -​ Low recurrence can’t be disease of mind 2.​ Internal Cause: Defect internal to person rather than cause by outside situation -​ Based on protection of public ​ Neither a good fit → Crown said causes internal, want locked up The Guilty Act Fagan v Commissioner of Metropolitan Police (Fuck you bitch) -​ Drove over plaintiffs foot ​ Justices were satisfied beyond reasonable doubt, running over the foot was “knowingly, provocatively, and unnecessarily”. On these facts, assault approved → Mr. Abbas of Appellant found that findings of justices initial mounting could not be an assault, and the act of wheel mounting came to an end without any mens rea, and no act on appellant to constitute an actus reus but only failure to remove wheel when asked → Mr. Rant for respondent argued mounting of the foot was actus reus which act continued until the moment of time at which wheel was removed, during continuing act, appellant formed necessary intention to constitute mens rea → Assault is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence -​ For assault to be committed actus reus and mens rea must be present ​ James J would allow dismiss the appeal, became criminal as soon as intention was formed ​ Bridge J both AR and MR must be present at the same time, but the one may be superimposed on the other, but no way this qualifies as assault -​ Would allow appeal and quash the appellant's conviction Result: -​ He was convicted of assaulting a police officer -​ Act of leaving car constituted a continuing act → Signifies how actus reus and mens rea can align over time Majority: Legal Realist -​ Legal realist view, must be intentional act, omission not enough → Initially unintentional, became intentional when he said “fuck you” -​ AR and MR can align over time Dissent: Legal Formalist -​ Nothing more he could have done once the car was on his foot -​ He didn’t move it, he didn’t maintain it there DPP v Miller -​ Went out for drinks, then went back home to sleep, lay on the mattress, lit a cigarette, woke up and it was on fire, went to the next room and went back to sleep. Couldn’t put fire out so just left it → Tried in Crown Court at Leicester before a reorder and a jury. Did not give evidence and facts set out in his statement not disputed -​ Found guilty sentenced to 6 months imprisonment -​ Appealed to COA on ground that undisputed facts did not disclose offence under criminal damage act → Following question of law of general importance was involved: -​ Is use of Actus Reus liable to mislead that some positive act on the accused is needed to make him guilty and failure or omission to act is insufficient to give rise to criminal liability unless some express provision in the statute creates the offence so provides Issue: -​ Did Miller's failure to act after he realized he caused the fire amount to the actus reus necessary for arson? -​ HOL upheld Millers conviction for arson Reasoning: -​ When a person creates a dangerous situation, they have a duty to take reasonable steps to prevent or minimize harm -​ Millers failure to address the fire was a breach of this duty -​ While omissions (failures to act) are generally not sufficient to establish actus reus, exception exists when duty to act arises from defendants prior conduct → Initial act and subsequent failure viewed as continuing act ​ Time frame is important: doing something to start fire, failing to do something to stop it R v City of Sault Ste Marie Dickson J: Court concerned with offences referred to as “statutory”, “public welfare”, “regulatory”, “absolute liability” or “strict responsibility” -​ City of SSM, deposited materials into Cannon Creek and Root River that could impair quality of the water -​ Needed to establish mens rea and ordered a new trial -​ “Du Novo” = New trial The mens rea point -​ Distinction between two criminal offence and public welfare of prime importance, whether offence is criminal, crown must establish mental element, namely that the accused did the act intentionally or recklessly with knowledge constituting the offence or willful blindness toward them -​ Negligence excluded from concept of mental element required for conviction -​ “Absolute liability” entails conviction on proof merely defendant committed the prohibited act constituting actus reus of the offence ​ Three categories of offences rather than traditional law 1.​ Offences in which mens rea consist of positive state of mind such as intent, knowledge or recklessness must be proved by prosecution = True Crimes 2.​ Offences in which there is no necessity to prove mens rea, the doing of the prohibited act prima facie imports the offence leaving it open to the accused to avoid liability by proving he took reasonable care = Strict Liability 3.​ Offences which are criminal in the true sense fall in the first category = Absolute Liability Development of Strict Liability ​ Strict Liability category of offense where → Mens rea not required to prove offense Only actus reus needed to established → Defendant can avoid liability by demonstrating they exercised due diligence (Reasonable Precautions) Strict Liability in R v City of SSM -​ No mens rea, city did not act intentionally to cause pollution -​ Proving intent unnecessary in strict liability → Actus reus proven, as pollution occurred under city’s jurisdiction → City went to another trial to try and prove due diligence Result: -​ City acquitted, but new framework called strict liability -​ Under strict liability, defendants can prove they took reasonable precaution to prevent harm → Absolute Liability: Conviction merely for doing the act, only actus reus -​ No mental element needed, don’t need to prove intent. -​ As long as act occurred, convict the blameless While Def proves balance of probabilities he took reasonable care -​ 3 categories 1.​ Full mens rea (true criminal offence 2.​ Strict liability: No mens rea proved, accused can show they took reasonable care while crown proves AR beyond reasonable doubt 3.​ No mens rea, no defence, language of statue must be clear excluding mens rea -​ For small penalties absolute liability ok, harsher penalties should be allowed to show lack of guilty intent January 14th 1st Lecture - Criminal Law R v Parks - Sleepwalking case -​ Stabs in laws, makes phone call admitting to the crime -​ Drives himself to police station, hands himself in → Charged with murder and attempted murder → How can he actually be asleep? ​ Defence argued: Client was an automaton, body doing things not in control of -​ Automaton, but not insane → What is the definition of “disease of the mind?” -​ Not a diagnosis -​ Will have to go to medical institution for insanity, at pleasure for minister do not want to clear DOM How did they do this? ​ Justice Lemur -​ Laid out all the facts -​ Defended on basis of non-insane automatism -​ No motive, history of sleep issues, financial issues → Next night supposed to have dinner and deal with issues → Jury = Trier of facts, can’t determine law but facts → Criminal code presumes sanity, responsibility, accountability ​ Crown wants to prove DOM to give some consequence Lemur -​ Is this a DOM of the mind case? Or case of non-insane automatism → Is this a law term or medical term for DOM? Sleepwalking doesn’t fit a category, in its own category -​ No treatment for sleep walking but developing good habits ​ If acquitted law has no authority over you How do we categorize sleep walking? -​ Medical evidence matters, informative, doesn’t decide answer though ​ Two theories in law to give DOM 1.​ Continuing danger 2.​ Internal cause → All that's used to determine DOM, neither theory good fit for the case -​ Crown argue factors internal: guy can fall asleep, drive, kill people. Result: → Got acquitted → Some people reject acquittance, “Floodgate” argument: I hate my neighbor, I hate etc, say I was sleepwalking -​ Extremely hard to prove → Accountability determines outcome, not about result, has to have responsibility and accountability on accused R v Fagan (Ran over foot) ​ Acteus reus can be omission or co-mission, intentional application of force on someone else without their consent, harm not component of assault ​ Guy ran over someone’s foot, said “fuck you! You can wait” → Do we have an assault? → Continuous act allows for MR and AR to happen simultaneously, what was unintentional become intentional Dissent -​ We are talking about assault, no omission can become assault -​ Co-mission = intended application of sort Result: -​ Majority don’t like appellant, maintained car on a foot ​ Legal realist: More biased, committed bad act, should be punished ​ Formalist: Don’t fit the rule get to go free R v Miller (Cigarette before bed did nothing) → Lit cigarette before bed, woke up fire started, ignored it went back to bed ​ Criminal Damages Act: You cause damage based off actions -​ Result Crime -​ A person intentionally or recklessly commits damage → Was Actus Reus present when the fire started? → Does he have an obligation when he sees fire burning? Omission or Co-mission?  -​ Reckless: Awareness and advertence to risk, behave in way that ignores risk you’re aware of ​ Once you create risk, become aware of it, under positive duty to prevent damage if you can Differences with Fagan -​ Fagan accidental, this wording allows for omission to be offence, not voluntary act, voluntary non-act, have obligation to do it Mens rea note: → Mens rea under criminal law: Fully subjective as opposed to object of standard -​ Actually knew, and actually intended -​ How do we know what somebody actually knew? ​ If we are trier of fact we must decide, what they thought beyond reasonable doubt hard because fully subjective → Most criminal cases must require mens rea, more serious offences, higher intentionality of mens rea 1.​ Intent: 2.​ Knowledge: 3.​ Recklessness: Advertence or knowledge of risk 4.​ Willful blindness: Can’t rely on intentional ignorance, sufficient to justify conviction R v SSM (Third party dumps waste) → About mens rea and when it's required, not every offence contains mens rea knowledge -​ Regulatory offence -​ SSM highers third party to dispose of garbage in landfill sight, covered it up and buried it, covered up springs that flowed into Root River and Canon Creek ​ Town prosecuted, and company -​ Third party independent contractor, city did not know City’s Defence -​ Had no idea not our fault -​ Had to go to new trial Result: -​ City and company convicted at hearing de novo -​ Judge said: Strict liability → Strict Liability: No mens rea required for a conviction → In Absolute Liability: Crown does not have to prove mens rea, accused has no defence -​ Prior to this case two choices 1.​ Absolute Liability: Purely regulatory, crown need only prove actus reus, no mens rea required 2.​ Mens rea: → Law has to be more flexible, third category invented 3.​ Strict Liability: proves actus reus, accused has opportunity to show no mens rea, show they took reasonable care Spectrum: Purely Regulatory offences True Crime -​ More serious it gets, more mens rea needed → Strict liability halfway between PRO and TC R v Ladue (Dead body has sex) -​ Attempting to copulate with a dead body -​ Man and the woman very intoxicated, during intercourse she died → Very extensive alcohol abuse, severe alcoholics ​ Convicted of indignity to human body -​ Decision not appealed Defense: -​ I didn’t know she was dead ​ Then what were you doing? Issue: -​ TJ: Accused can argue not aware, no mens rea -​ Court admits to Actus rea, admits to having sex, was raping her ​ Trial Judge did not accept as defense → Intention to commit crime, even though not precise crime charged will provide mens rea → Can not be charged with one thing and use mens rea for something else Result -​ Charged with indecent interference → Even though did not intent to interfere with the corpse, actions met legal definition of the crime -​ Satisfied Actus reus, -​ Harder to prove mens rea, ignorance of death could not absolve him of liability ​ Example of strict liability R Bronaugh Essay ​ The State Pursues -​ State itself, through police & crown, take personal interest in apprehension and prosecution of perpetrators -​ Private law with victims rights and resources pursue wrongdoer and are furnished by the state with little more than legal and physical facilities -​ Scots law “plaintiff” called “pursuer” → Victims testify on crowns behalf ​ Getting in Harm's Way -​ Should every crime cause some harm? What kind? And cause it exclusively to others? ​ Harm is not Enough -​ Why are some harmful acts non-criminal? -​ If act in self-defence, but harm another, justified as moral right → Harm not sufficient for criminalization of conduct ​ No Harm, No Crime? -​ What about absence of harm? Absence of harm sufficient to a non tort, so harm is necessary to a tort -​ Isn’t absence of harm sufficient for a non-crime too? ​ Harmless Immoralities -​ Porn offenses debated in following terms: should there be criminal law against harmless immoralities? -​ This law explained by “Moral disgust” ​ Generalizations 1.​ The state, not victim, prosecutes the person charged with the crime 2.​ A prosecution maybe for some act of a kind which brings harm upon others, though sometimes people also charged for putting themselves and others merely at risk of harm 3.​ Not every harmful act attracts criminal law, there are non-criminal torts 4.​ Some crimes have no harm, and have been made crimes for moral offensiveness. Basis for law always controversial 5.​ Crime nearly always requires definite act by the perpetrator, though negligent inaction can lead to criminal charge 6.​ In convicted of a crime, person made to suffer some sort of punishment by state authority ​ Accountability -​ Basic theory to criminality, is people convicted should be accountable for what they do, even more basic is we are dealing with a human being → Humans must have “Capacity”: must be someone to whom the system of criminal liability applies → “Guilty but insane” new verdict ​ Being a Rational Moral Agent -​ For someone to be accountable, he or she must have been a rational, moral agent at the time of the crime -​ To be insane only one way to be nonaccountable -​ Must understand.what they did was wrong, or be able to appreciate moral judgment of others ​ The First Large Point -​ People who suffer punishment at hands of the state must personally deserve it -​ Morally wrong to punish the troublesome merely to realize a social ambition → Regina v Parks example (sleep walking) ​ Coming Out as You Want -​ Realist depends on where you want to come out, no pure factual or rule-governed reason for Fagan case (Ran over foot) -​ Answer left to hang in personal values and policy objectives of judges → Realist: Judges make things come out the way they want them too ​ Conceptualism -​ When judges come out where they rather not, realist philosopher believes judges are victims of conceptualism -​ Judges follow own desires ​ The Concepts of a Legal System -​ One can not assault by omission or by merely allowing something underway to come to pass  -​ Assault requires positive act, can not be by accident ​ Making it a Rule -​ If one is in control of something, and it becomes involved in an accident, then one attracts the kind of special relationship needed t law for a positive duty to rescue those who might be injured ​ Going for the Goal -​ Formalist: If judges get to decide, rule of law is lost, formal is by the book then make decisions ​ Absolute Liability -​ Rape not done by accident, directly intentional or reckless action -​ Cases that require only actus reus ​ Social Control and Missing Stigma -​ Companies may be either strictly or absolutely liable for the environmental damage they cause, whatever their intentions were -​ Speeding in car absolute liability offense ​ About a True Crime -​ Absolute liability held even in case where girls lie about their age, even if consenting and swearing convincingly ​ What is a thing called Mens Rea? -​ Main instance of mens rea is Direct Intention, directly intended action has results we aim to bring about -​ Describing One’s Deeds: What one does is function of the truthful description one would give of the aim of one’s own conduct -​ What If I Know?: “Oblique Intention”, mere knowledge of what might result is not quite what counts ​ Oblique Intention -​ Requires a dose of irrationality, when I know the facts and what is contrary to reason but I do it ​ But Plainness? -​ What and proper “reasons-against” any course of action: it is these that one must defy so that one’s behavior takes on oblique intention ​ Punishing Attempts Less -​ Less punishment for failure than success Jan 22nd Case Readings - Mens Rea Continued Regina v Logan et al -​ Appeal by the crown from a judgment of the OCA, dismissing the appeal by the accused from their conviction for attempted murder, but setting aside conviction for attempted murder and substituting convictions for robbery -​ Clerk shot in the neck, four men charged with attempted murder, 2 appealed their convictions. (No prior knowledge of shooting, nor prior knowledge to attempt to shoot) Criminal code section 21 1.​ Everyone is a party to an offence who a.​ Actually commits it b.​ Does or omits to do anything for the purpose of aiding any person to commit it or c.​ Abets any person in committing it  2. Where two or more persons from an intention in common to carry out an unlawful purpose and to assist each other therein and any of them, in carrying out the common purpose commits an offence, each of them who knew or ought to have known the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence ​ COA allowed appeals for attempted murder substituting for armed robbery instead R v Vaillancourt -​ A party to any offence cannot be found guilty of the offence based on a lower standard of requisite mens rea than that required for convicting the principal -​ Conviction can not stand unless there is proof beyond a reasonable doubt of a minimum degree of mens rea → They can be convicted under objective foreseeability “Ought to have known” ​ Question whether a party to an offence has the requisite mens rea to found a conviction pursuant answered in two steps 1.​ Minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence -​ Can operate without restricting the constitutional rights of a party to the offence 2.​ If the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offences as well → Measure of objective foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according to an objective standard as well -​ If someone who attempts to kill can not be convicted unless the crown proves he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows the attempted murder was objectively foreseeable Results: -​ Supreme Court of Canada held that for such serious offenses conviction requires proof of subjective foresight of the consequences -​ Convicting based on “ought to have known” not constitutional for serious crimes → Have to prove subjective intent for serious offences, make sure individuals not convicted based on objective standard of foreseeability DPP v Smith (Officer hanging on car, could driver predict harm?) -​ Car containing stolen scaffolding clips just stolen -​ Car told to come to nearside after traffic subsided → Respondent accelerated instead, Officer held onto car for 130 yards until he was shook off and thrown into traffic and under another car suffering a crushed skull and dying Defence: I. He did not realise the officer was hanging on to the car until the officer fell off and that he could not keep a straight course regarding the weight of metal in the back II. Alternatively, case of manslaughter, and not murder, no intent to kill or do grievous bodily harm → Jury was biased, rejected possibility of accident, defence of accident never suggested  -​ If accused said he did not in fact think of the consequences, and the jury considered that to be true, he would be entitled to be acquitted of murder -​ Jury may on proper direction find that prisoner is guilty of doing the act with intent alleged if on the totality of evidence there is room for more than one view as to the intent of the prisoner, if left in doubt of the intent, prisoner may be acquitted ​ Contains all the necessary ingredients of malice afterthought, appeal allowed and conviction of capital murder restored Results: -​ Did he have enough mental state to convict mens rea? -​ Should intent be based on objective v subjective test for intent? ​ Subjective: Defendants actual state of mind ​ Objective: What a reasonable person would foresee in the circumstance → Applied objective test: Reasonable person would have foreseen actions would result in death → Convicted of murder -​ Issue of Credulity: Can you believe the officer wouldn't be hurt? Criminal Justice Act -​ Court or jury determining whether a person has committed an offence a.​ Shall not be bound in law to infer that he intended or foresaw a result of his action by reason only of its being a natural and probable consequence of those actions; but -​ Where HOL went wrong b.​ Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances Kilmeur -​ Once he is acting voluntarily he intends what happens as a result of his actions ​ Is harm a probable result of action? Yes Director of Public Prosecutions v Morgan (Gang rape wife) -​ This house discussed the mental element in murder → This appeal concerned with the mental element in rape ​ Two questions to answer -​ Four appelants convicted of various offences connected with alleged rapes on person -​ First appellant was husband, second, third and fourth, were convicted each of a principal offence against Mrs. Morgan, each aiding and abetting the principal offences alleged to have been committed by each of the other two → Mr. Morgan not charged with rape, husband can not be guilty of raping his own wife, therefore charged with and convicted of aiding and abeting the rapes alleged to have been committed by the other three -​ Defendant believed that the woman consented, therefore can not be convicted on reasonable grounds -​ Nolens Volens: Recklessly and not caring whether the victim be a consenting party or not, equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim Results: -​ Mens rea for rape required proof defendant knew the complaintant did not consent or was reckless to whether she consented → Rape cases rely on subjective state of mind rather than objective standard → Unreasonable but honest belief in consent COULD be a defense, changed in 2003, honest and reasonable for defence now Lecture 3 - January 22nd ​ Oblique Intention: R v Logan (Murder dropped too armed robbery) -​ Four people charged of murder, robbed a convenience store -​ Shot worker in the neck, becomes paraplegic ​ Being party to the offense -​ Everybody a party that actually commits it -​ Does or omits anything in aid to the person who commits it → When two or more person found an intention of lawful purpose and assist one another, and anyone commits an offence, each knows “or ought to have known” probable cause for all of them -​ Objective Standard: “Ought to have known” -​ No mens rea so far in this case, if party to offense → Convictions of appellant set aside for attempted murder ​ Intent to Kill -​ Full intention to kill someone in “Intent to Kill” -​ Have to have full subjective mens rea to charge for attempted murder ​ Section 7 -​ Right to life, liberty and security of a person and not to be deprived of these things, unless in accordance of principles of fundamental justice 1.​ Intend 2.​ Certain : Will also happen 3.​ Reason Against : Normatively Important 4.​ Do thing #1, #2 also happens DPP v Smith -​ English case -​ Defendant driving around in little car full with construction equipment -​ Police officer dies while driving off and holding onto car → Have to decide person's mind decision based off subjective bias -​ Did he think of consequences? If no, he should be acquitted -​ Once he’s acting voluntarily, can be presumed he knows what happens as result of actions ​ Impute: Can presume if we knew he intended -​ This should not be in HOL → Jury can infer intention to cause injury → Law not retroactively applied R v Morgan -​ Honest mistaken belief: Lack mens rea for criminal offence -​ In consent specific to this case ​ Guys go out drinking looking for girls, come home empty-handed -​ Offers up his wife, says she is kinky, this is how we get on. -​ Drag wife out of room, sexually assault her, she's yelling, cover her mouth, first three have sex with her, and husband has his way with her too Defence: -​ Honest mistaken belief, what he told us made us think it was okay -​ If this is true, they ought to be acquitted -​ All 3 charged with rape, husband charged with aiding and abetting Trial Judge: 1.​ Honest mistaken belief in consent 2.​ If belief is based on reasonable grounds -​ If we see word reasonable using objective standard -​ These people “stupid” we can believe they were actually in belief of what Morgan said they must be acquitted -​ No miscarriage of justice in this trial → Crown has to prove rape happened with intention ​ Intent to have intercourse without persons consent -​ If you’re reckless to consent, sufficient mens rea R v Papajohn (Rape after afternoon lunch) -​ Complainant was a real estate agent, middle of afternoon they drank a lot -​ Afterwards drove complainants car home to their house → Had sex at the house -​ After, ran out of the house naked to the neighbors house, called police -​ Voir Dire: Trial within a trial, about evidentiary concern, when you give jury instruction say the following: -​ Convicted of rape without putting defence at the jury Difference between Morgan and Papajohn -​ No evidence anyone told him otherwise, Morgan case people were told story for foundation of honestly mistaken belief -​ Evidentiary concern ​ Appeals he should’ve been able to put this offence to the jury -​ His evidence does not support position that he thought she consented → Moves to question of actual consent Dissenting: -​ What is mens rea for rape? Intention for intercourse without plaintiff's consent  -​ Have to have knowledge for no consent → Recklessness must be proved -​ Was belief raised? If accused raises, it should go before the jury -​ Majority says no evidentiary foundation, no need to go before the jury.. Dissenting opinion even if tiny minimal evidence, should go before the jury Result -​ Morgan cause operated under honest mistaken belief -​ Morgan had evidence supporting their belief in consent, non here → Convicted at trial ​ His evidence did not support position R v Tutton (Diabetes negligence) -​ Decided by a split court: Issues are very difficult, case of criminal negligence -​ Has to be some sort of objective foreseeability if using word negligence → Does negligence ending in death result in some sort of mens rea? -​ Children born with type 2 diabetes, mother and father explain very serious diseases but it is controllable. Have to maintain medical regime -​ Parents of fundamentalist religion, God can cure their son, no known cure -​ Year after diagnosis stopped medicine, cured by divine intervention ​ Another year injections discontinued, mom had a dream God cured son ​ Father supported his wife → Faith strong enough to cure child, child ends up dying -​ Charged with manslaughter -​ Criminally negligent: Omit to do anything you had a duty to do, shows negligent duty to lives or safety of persons -​ COA set aside conviction, trial judge did not instruct jury to all elements of the case → Honest mistaken belief in the son's cure? ​ Trial Judge: Criminal negligence does not require subjective mens rea, does not require knowledge. Whether you believe doesn’t matter -​ Objective standard foreseeability can’t be applied, crime of Omission vs Co-mission ​ Wanted, reckless disregard, must apply advertence or knowledge of risk. Language of criminal code suggests must be looking at advertence of risk -​ Crown proves conduct in reckless disregard of actus reus, accused has opportunity to lead evidence they had lack of knowledge Dissenting Opinion: Macintyre -​ Held mistaken belief in something to make them not guilty -​ No reckless disregard, case is about interpretation -​ Justice wilson sees justification for subjective mens rea standard → Criminal code says negligence, not thought directed intentional action -​ Must be objective standard for negligence, only thing distinguishing criminal negligence from other crimes  -​ Reasonableness: Take into account facts, but we do not need to worry, reasonableness of their religious conviction → Not thought-directed action -​ Can you convict if you don’t know what they were thinking or what they knew? -​ Appeal granted, split court, When to use objective v subjective test? -​ More serious, the more likely we need subjective for mens rea Normatively Important -​ What does purely normative mean? -​ Is law always a moral thing? Sometime it isn’t -​ Sometimes rules are just rules, feel compelled to follow just because we have a rule system ​ We can lump regulatory offences into purely normative Criminal Negligence January 29th Cases Regina V Pare (Raped child, killed child, is this “while committing”?) -​ Dismissed an appeal of conviction of first degree murder and substituted conviction for second degree murder → First degree murder when death caused by person while person is committing indecent assault -​ Pare indecently assaulted and murdered seven year old boy ​ Did he commit murder while committing the indecent assault? Facts: -​ Pare was a pedophile, true intentions to get 7yr old to have sexual relations -​ Plaintiff said he was going to tell his mom, Pare says if you do, I will kill you. Then strangles pare ​ Accused admitted to all the facts, found guilty of first degree murder The Courts ​ The Superior Court -​ Jury Bienvenue J discussed meaning of the words “while committing” -​ When you say while committing, it means “committed at the same time” → Jury found accused guilty of first degree murder ​ The Court of Appeal for Quebec -​ While committing must be contrasted with after having finished committing, murder committed after the accused had committed the indecent assault was not a first degree murder -​ Some under the impression beyond reasonable doubt the accused murdered while committing indecent assault Issue  -​ COA made two errors 1.​ It concluded that criminal code created a substantive offence of murder 2.​ Made error in interpretation of “while committing” → Relevant provisions of the criminal code are as follows ​ 212 Culpable Homicide is murder A.​ Where the person who causes the death 1.​ Means to cause the death 2.​ Means to cause him bodily harm that he knows is likely to cause his death B. Where a person meaning to cause death of a human being or meaning to cause him bodily harm that he knows is likely to cause his death C. Where a person for an unlawful object does anything that he knows or ought to know is likely to cause death -​ The words “while commiting” do not require an exact coincidence of the murder with the underlying offence, they require a close temporal and causative link between the two Result: ​ Strict construction: Requires court adopt the interpretation most favourable to the accused -​ Murder temporally and causally connected to the underlying offence, it formed part of one continuous sequence of events, same transaction “while committing”. Appeal allowed, restore conviction to first degree murder Leary v The Queen (Raped at knife point) -​ At a jury trial the appellant was convicted of rape and his appeal to the COA was dismissed unanimously → Learned trial judge erred in law that in directing the jury that drunkenness was not a defence to a charge of rape -​ Real issue was whether the sexual intercourse that took place was with or without the consent of the complainant, and whether or not consent was extorted by threats of fear or bodily harm -​ Drunkenness no defence to a charge of this sort 1.​ Distinction between crimes of specific intent and offences of general or basic intent 2.​ Rape as an offence of general intent 3.​ Whether there was evidence that the accused was so intoxicated he could not form a criminal intent 4.​ Whether there was a miscarriage of justice -​ “Specific Intent by the accused to have intercourse without the womans consent” is one of the essential elements demanding proof in charge of rape. -​ Rape is a crime involving only a general intention as distinguished from a specific intention and is therefore a crime in which the defence of drunkenness can have no application Result: -​ “Leary Rule” self induced intoxication does not negate mens rea -​ Upheld this rule → Irrelevant in SA because classified as a general intent crime R v Daviault (1994) (sexually assaulted sleeping woman insanely drunk) -​ Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind constitute a basis for defending a crime which requires not a specific but only a general intent? → Leary charged with rape: Jury said drunkenness is no defence to a charge of this sort, rape a crime of general intent, mens rea not affected by drunkenness -​ Self-induced intoxication should not be used as a means of avoiding criminal liability for offences requiring only a general intent -​ To permit such a defence like this would be to “open the floodgates” for the presentation of frivolous and unmeritorious defences Result -​ Trial judge acquitted him, due to extreme intoxication could not have formed necessary intent -​ Appeal court reversed, applying Leary Rule → Daviault granted new trial with possibility of extreme intoxication defense The O’Connor Case - Contrary to Leary (Stabbed police officer) -​ O’Connor stabs police officer after pursuit, claims he has no knowledge due to the tablets and the alcohol -​ What options are available with regard to the admissibility and significance of evidence of drunkenness as it may pertain to the mental element? ​ Two categories of offence: Those requiring a specific intent, and others which call for nothing more than general intent -​ Level of intoxication reached by the accused sufficient to raise a reasonable doubt as to his capacity to form the minimal mental element required for a general intent offence for which he is being tried he can be acquitted ​ Actus Reus absent when somebody is an automaton -​ Sexual assault is a crime of general intent, drunkeness not a defence to general intent → Criticisms of Leary Rule 1.​ Violates 7 and 11(d) of the charter since it permits accused to be convicted despite existence of a reasonable doubt as to whether he has the mens rea of the offence charged 2.​ Distinction between offences of specific and general intent is illogical 3.​ The Leary Rule is inconsistent with the defence of honest but mistaken belief in consent 2. Distinction between offences of Specific and General Intent is Irrational and illogical -​ Drunkenness defence to theft and wounding because specific intent, unlawful wounding general Result: -​ Challenged the Leary Rule, created an exception where accused in state of extreme intoxication akin to automatism -​ Only extreme cases where person essentially unconscious with no voluntary control → Only in rare cases, can be a defense for general intent crimes R v Perka - Necessity Defence (Drug smugglers Canadian border) Facts:  -​ The appellants are drug smugglers, carrying over 7m worth of marijuana -​ Vessel (Boat) began to have serious issues → Fearful of capsizing, ordered men to offload the cargo -​ Jury believed appellants ad acquitted them, did not plan on bringing the cannabis to Canada, just do repairs then leave History & Background -​ In some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law -​ Nicomachean Ethics: Aristotle says, any sensible man does what he can to secure safety for him and the crew The Conceptual Foundation of the Defence -​ Characterized necessity as an “ill-defined and elusive concept” -​ Despite apparently growing consensus as to the existence of a defence of necessity, statement equally true today → Defence of necessity capable of embracing two different and distinct notions, generally speaking defence of necessity covers all cases where non-compliance is excused by emergency or justified by the pursuit of some greater good 1.​ Involves avoidance of greater harm or pursuit of some greater good 2.​ Difficulty of compliance with law in emergencies -​ Two related principles emerge ​ Utilitarian principle to the effect within certain limits it is justifiable in an emergency to break the letter of the law, id breaking the law will avoid a greater harm than obeying it ​ Second is a humanitarian principle, again within limits, it is excusable in an emergency to break the law if compliance would impose an intolerable burden on the accused → Criminal theory recognizes distinction between “justification” and “excuses” -​ Justification challenges wrongfulness of an action which technically constitutes a crime -​ Excuse concedes the wrongfulness of the action but asserts that circumstances under which it was done are such that it ought not to be attributed to the actor 3.​ Limitations on the Defence -​ Defense of necessity is to form a valid and consistent part of our criminal law it must as has been universally recognized, be strictly controlled and scrupulously limited to situations that correspond to underlying rationale 4.​ Onus of Proof -​ Crown always bears the burden of proving a voluntary act, prosecution must prove every element of the crime charged, one such element is the voluntariness of the act 5.​ Preliminary Conclusions as to the Defence of Necessity -​ Defence of necessity could be conceptualized as either a justification or an excuse -​ Should be recognized in Canada as an excuse operating by virtue 6.​ The Judge's Charge -​ There was an adequate body of evidence to raise the issue of necessity and proceeded to direct the jury with respect to the defence Can Succeed with these conditions met: 1.​ Imminent Peril Danger 2.​ No reasonable legal alternative 3.​ Harm caused proportional to harm avoided → Left for a new trial, jury did not make decision R v Lavallee (Shot Kevin back of head) The Facts: -​ 22 years old, living with Kevin Rust for 3-4 years, residence was a scene for a boisterous party on August 30th 1986 → Appellant and Rust had argument upstairs, Rust killed by bullet to back of the head fired by appellant when leaving the room -​ Appellant did not testify, but her statement is as follows ​ She was scared in her statement, Kevin is going to hit her again, abuse goes on Kevin grabs her arm pushes her, hits her twice in the head (emphasis she was scared) → Kevin gives her gun, she fires a bullet and another bullet and shoot herself, says something like “either you kill me, or I’ll get you” Fires gun hits Kevin -​ Relationship was volatile and frequent arguments and violence, fight for days at a time several times a week, victim physically abused by Rust, doctor testifies this → Dr. Fred Shane psychiatrist with extensive experience says “Appellant shooting was a desperate act by a woman who thought she’d be killed that night” ​ Appellant acquitted by jury, verdict overturned by majority COA and case sent back for retrial Relevant Legislation Criminal Code 34 -​ Everyone unlawfully assaulted and who causes death or harm in repelling assault justified with 1.​ Causes it under reasonable apprehension of death or grievous bodily harm 2.​ Believes on reasonable and probable grounds, he can not otherwise preserve himself from death or grievous bodily harm Issues on Appeal: 1.​ Did the majority of COA error in concluding that the jury should have considered a plea of self-defence absent the expert evidencexf of Dr. Shane? 2.​ Did the majority of COA error in holding that the trial judge’s charge to the jury with respect to Dr. Shane’s expert evidence did not meet the requirements set out by this court warranting a new trial? -​ Was shooting the deceased warranted on “reasonable grounds”? → This court considered interaction of objective and subjective components ​ Definition of what is reasonable must be adapted to circumstances which are by and large foreign to the world inhabited by the hypothetical “reasonable man” ​ Implication of Court’s reasoning is that it is inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is in progress Result -​ Allow the appeal, and restore acquittal -​ Lavallee acquitted on “battered-woman syndrome” → Battered woman syndrome can be considered in assessing self-defence claim R v Paquette Facts giving rise to Appeal: -​ Innocent bystander killed by a bullet from a rifle fired by one Simard -​ Robbery committed by Simard and one Clermont both of whom jointly charged with non-capital murder → Simard and Clemont pleaded guilty ​ Criminal Code Section 21 -​ Everyone is a party to an offence who 1.​ Actually commits it 2.​ Does or omits to do anything for the purpose of aiding any person to commit 3.​ Abets any person in committing it -​ Three men entered and robbed branch of Canadian bank of commerce, teller ended up fatally shot ​ Section 17. “A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is excused for committing the offence if he believes that the threats will be carried out and if he is not a party to to a conspiracy or association whereby he is subjected to compulsion but this section does not apply where the offence that is committed is arson, murder, piracy, attempted murder, assisting in rape, forcible abduction, robbery, causing bodily harm or arson” -​ Limited in which the person relying on this defense has committed an offence → Paquette (driver) said he was forced to assist under duress Issue: -​ Does defense of duress apply to an accomplice charged under section 21(2) of criminal code -​ Yes defense of duress is available Result: Lord Wilberforce -​ If defence of duress can be available to person who has aided and abetted in the commission of murder, then clearly it should be available to a person who is sought to be made a party to the offence by virtue -​ Would allow the appeal, and restore verdict of acquittal → Defense of duress is available to individuals charged as accomplices under 21(2) of criminal code ​ Different from Dunbar, based off facts, accused living with then, drove to and from shared in proceeds with criminal record ​ Lynch forced into being a driver. If you follow Lynch, duress allowed for robbery and aiding and abetting Regina v Campbell and Mlynarchuk -​ Trial de novo ​ Unlawfully took part as a performer in an immoral performance ​ Appellant danced on stage before an audience, started of with clothes ended with none → Was the performance immoral? -​ To be nude in public place an offence -​ Breach of a moral standard in Canada Defence -​ Appellant lacked mens rea → Mistake of fact is a defence in criminal charge, facts believed by the accused afford a defence -​ Her mistake, was concluding statement expressed by Riley J → Section 19: ignorance of law not a defence, deemed mistake of law not mistake of fact Result ​ Found guilty, but no criminal record or punishment = Absolute Discharge The Queen v Tolson -​ Prisoner Martha Ann Tolson convicted of bigamy (Marrying someone while already married) -​ Old husband died in a capsized vessel → Supporting herself to be a widow, married another man, circumstances known to the second guy → 1st husband not dead comes to America ​ Jury said good faith and reasonable grounds would not be a defense to bigamy ​ Convicted prisoner, but said believed her to good faith and reasonable grounds -​ Prima Facie: prosecutor has produced enough initial evidence, that if left unchallenged would prove the case Issues: -​ Does honest and reasonable mistake of fact provide a strict liability defence? -​ Should criminal liability include mens rea? → COA quashed conviction Judgments → Willis J: Mens rea essential -​ Person should not be guilty for bigamy if they had honest and strict belief -​ Conviction quashed → Stephen J: Concurring opinion -​ Criminal law assumes a person must know what they’re doing is wrong -​ Mistake of fact recognized defence → Manisty J: Dissenting Opinion -​ Intent irrelevant, statute did not include words -​ Court should override plain meaning of statute Result: -​ Should be acquitted if mistake of fact on reasonable grounds -​ Mens rea essential unless statute removes it -​ Charged under “Offences Against the Person Act 1861” R v Luedecke -​ Respondent charged with SA, incident occurred at a party where complainant fell asleep on the couch -​ Luedecke under influence of alcohol and sleep-derived also fell asleep on same couch ​ Complainant woke up finding Luedecke on top of her engaging in non-consensual intercourse ​ He recalled prior incidents of sexual activity while asleep with consenting partners → At trial relied on non-mental disorder automatism as a defense, no control due to parasomnia Issues: -​ Were the actions involuntary? -​ If actions were involuntary, were they a product of mental disorder making him NCR-MD? Decision -​ Trial judge acquitted, ruling actions involuntary, and not caused by mental disorder -​ COA overturned acquittal ruling should’ve been mental disorder and received NCR-MD → Trial judge underestimated sexsomnia episodes, as he had done them before ​ “Continuing Danger test” Established in stone, if an automatistic state poses danger of recurring, should be disease of the mind ​ Condition was hereditary and could recur, alcohol and sleep deprivation common triggers → Ruling overturned, not guilty due to mental disorder Omission -​ Failure to act when there is legal duty to do so -​ Cigarette case Commission -​ Actively engage in behaviour that constitutes a crime -​ Assaulting someone, stealing an item Wednesday February 7th Lecture R v Campbell and Mlynarchuk -​ Everyone who commits an offence as an entertainer is guilty -​ Can’t claim innocence on basis you don’t know law, can only argue MistakeOfFact(MOF) → Ignorance no excuse for defence, can’t be legit due to complex understanding of legal principles -​ Creates an “anomaly” Queen v Tolson -​ Husband went away in 1881, she thought he died. Had been six years, relatives said he died -​ Meets another guy and marries him, six years later → Bigamy, but statutory defence: If she waited seven years, would be off the hook  ​ Married someone else in good faith and reasonable grounds… didn’t do anything wrong -​ No conviction → Municipally and regulatory offences that do not need mens rea Dissent: Justice Manesty ​ No ambiguity, no mens rea, should have to wait seven years. ​ Clear intention to convict on actus reus, jobs of court to apply as written -​ Apply as written, exactly as written -​ No mens rea words, no mens rea → Positivist: Feel bad because morally blameless -​ Have to enact and obey law as written ​ Parliamentary Supremacy: Parliament can make law, has ability to enact, court interprets as written R v Luedecke -​ Got to party late, had beers fell asleep on couch -​ 5am woke up was getting SAed, he woke up and then fell back to sleep → Accused had vague recollections, called police turned him in ​ Charged with SA Defence: Non insane automatism ​ NCR = Not criminally responsible due to mental disorder -​ Actions ver involuntarily, sleep normal condition, was asleep at the time -​ Called “sexsomnia”, sexual activity when asleep, parasomniac event, genetic predisposition to do this -​ No cure, only thing is proper sleep habits → Sexsomnia not a DOM, mental disorder legal term not medical term: Normative description, not diagnostic one -​ This had happened before, sexsomnia, he had a history -​ Genetic predisposition to this activity, would triggers recur? R v Stone ​ Justice Basterash -​ Justice completely changes the law, stabbed wife 47 times. Claimed dissociative state as a result of psychological blows -​ Or verdict of not criminally responsible due to mental disorder → Have to prove involuntariness on balance of probability -​ Likelihood of dissociative state recurring, makes you more of danger to the public -​ Assessment if claiming NCR to establish not being danger Section 7: Life, liberty, security of person -​ Guilty mind to secure criminal conviction ​ Oblique Intention: Virtually certain harm + awareness of certainty -​ DPP v Smith