CRIMINAL LAW

INTRODUCTION
[1] SOURCES OF CRIMINAL LAW

* See, e.g., R v Oakes (Example of a rule of criminal procedure being struck down): The SCC was called on to deal with the constitutionality of section 8 of the Narcotic Control Act, which provided that a person found in possession of a narcotic was presumed to be in possession for the purpose of trafficking, unless he established the contrary. HELD: That section, which requires an accused to disprove on a BoP the existence of a presumed fact (reverse onus), violates the presumption of innocence -11(d). The law cannot be saved by s 1 of the Charter, as it does not survive the rational connection test b/c small amt of drugs doesnt equal trafficking, and therefore it is invalid)

- With exception of contempt, criminal offences are created by statute, mostly by the Criminal Code [CC] * See Frey v Fedoruk (Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency. It is for Parliament and not for the Courts to decide if any course of conduct is to be regarded as criminal which has not been previously regarded). Peeping Tom sues for malicious prosecution and false imprisonment. Ct Appeals- guilty at common law for offense of breach of peace. SC-Not guilty of crim offense even at common law, so no justification for warrant. * See CC s 9 No one can be convicted of an offense at common law - But common law defences are available under Canadian criminal law (e.g, Levis (City) v Tetrault below; and CC s 8) - Common law CAN determine, however, how criminal offences are interpreted (e.g. R v Jobidon) [2] THE POWER TO CREATE CRIMINAL OFFENCES AND RULES OF CRIMINAL PROCEDURE (a) Constitutional Division of Powers - Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences), but only the Federal Government can create criminal offences: s 91(27) Constitution Act (b) The Canadian Charter of Rights and Freedoms - The Charter can be used to invalidate offences that Parliament has created, and can be used to strike down rules of criminal procedure: * See, e.g, R v Heywood (Example of criminal offence being struck down): CC prohibits loitering of sex offenders by school yard. The Constitutional question was whether s 179(1)(b) of the CC infringed several sections of the Charter, and if so, whether those infringements were justifiable under s 1. HELD: Breaches s. 7, not fundamental justice. Overbroad- people, geography, time- fails minimal impairment test under s.1.) 1

- The Charter can also be used as an important interpretative tool by allowing courts
to use constitutional values to influence the way statutes are interpreted: * See, e.g, R v Labaye: Group sex club, indecent b/c degrading and dehumanizing (lower ct). The issue in this case was whether what went on in lOrage constituted acts of indecency. Indecency prohibitions are for harmbased rationale. To ground criminal responsibility for indecency, the harm (1) must be one undermining fundamental value, as reflected by constitutional (autonomy, liberty, equality and human dignity are among these values), (2) harm/risk of harm must be incompatible w/ proper functioning of society (degree)

[4]

INTERPRETING CRIMINAL PROVISIONS

Definitions - Definitions are found in CC s 2 (which apply throughout) and in the beginning of each Part Strict Construction - Traditionally, criminal statutes were interpreted strictly in favour of the liberty of the accused; although this principle continues to apply, it has been heavily modified by the purposive interpretation approach: * See R v Pare: 1st degree murder. The words "while committing" in s. 214(5) do not require the murder and the underlying offence to take place simultaneously. Where the act causing death and the acts constituting the indecent assault all form part of one continuous sequence of events forming a single transaction, the death is caused "while committing" an offence for the purposes of s. 214(5). The offences under s. 214(5) all involve the illegal domination of people by other people. Accordingly, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder and makes it a single transaction. The murder represents an exploitation of the position of power created by the underlying crime and knits the two together. The conviction of first degree murder s hould be restored

Purposive Interpretation Canadian law makes liberal use of purposive interpretation, in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. (see R v Pare above) Reference re Section 94(2) of the Motor Vehicle Act (BC) (Absolute liability and imprisonment cannot be combined)- The words principles of fundamental justice do not refer to procedure only. The proper approach to the definition of the rights and freedoms guaranteed by the Charter is a purposive one. French/English - Federal laws like the CC are passed in both English and French; each is equally authoritative and ambiguities in one language can be clarified by the other: * See, e.g., R v J (D)

reasonable under circs. s 12 analysis: Section 12 prevents "cruel and unusual punishment". Citing the standard of showing cruel and unusual punishment from R. v. Smith as "so excessive as to outrage standards of decency", McLachlin rejects the claim as the section only permits "corrective force that is reasonable" thus cannot be excessive by definition. S 43 does not lead to a violation of s 15 of the Charter, and the Foundation erroneously equates equal treatment with identical treatment. So while s 43 makes a distinction on the basis of age (triggering s 15), the distinction isnt discriminatory. The question may be put as follows: viewed from the perspective of the reasonable person identified above, does Parliaments choice not to criminalize reasonable use of corrective force against children offend their human dignity and freedom, by marginalizing them or treating them as less worthy without regard to their actual circumstances? HELD: The law stands

CRIMINAL OFFENCES The elements of an offence include: (1) The PHYSICAL elements (actus reus): the act that must be performed; the omission that must be proscribed; the circumstances or conditions in which the act must occur; the accused must have acted voluntarily; causation must be established (if relevant); and any consequence that must be caused by the act. (2) The MENTAL element (mens rea): as a general proposition, a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. [1] (a) ACTUS REUS Acts and Statutory Conditions:

The Charter - The Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid: * See, e.g., Canadian Foundation for Children, Youth & the Law v Canada: FACTS: CC s 43 excludes from crime reasonable physical correction of children by their parents and teachers. The CFC, and other foundations, seek declaration that this exemption violates s 7 because it fails to give procedural protections to children; violates s 12 because it constitutes cruel and unusual punishment and violates s 15. ISSUE: Constitutionality of provision allowing parents and teachers to use minor corrective force REASONING: s 7 analysis: Section 7 protects individuals from violation of their personal security. McLachlin found that there was no violation of section. didnt failto give procedural protection as children receive all the same protection as anyone else, and represented at trial by crown. On the second claim, she rejects that the "best interests of the child" is a principle of fundamental justice as there is no "consensus that it is vital or fundamental to our societal notion of justice." S.43 of CC not vague, real boundaries corrective force, 2

- The act must be the act of the accused, and must be the kind of act described in the relevant provision, and the act must be committed under the circumstances or conditions specified in the offence, e.g.: an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s 348(1)(a) unless he breaks and enters something that qualifies as a place (b) Acts must be Voluntary or Willed:

- See voluntariness defences below Bhatnager v. Canada (Minister Employment and Immigration) [1990] S.C.J. No. 62. no

vicarious liability, respondeat superior. Ministers failed to comply w/ct order requiring production of file- minister cant be held in contempt common law always required personal service or actual personal knowledge of court order as precondition to liability for contempt. (c) The Act of Possession:

- There are a couple of offences in the CC that have possession as an element (of the actus reus), e.g., possession of firearm related offences, possession of property obtained in a crime (s 354(1)), etc. - Possession is defined in s 4(3): A person has something in his possession where (a) He has it in PERSONAL POSSESSION (i.e. manual possession); OR KNOWINGLY has it in the actual possession or custody of ANOTHER PERSON (i.e. constructive possession); OR KNOWINGLY has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person (i.e. constructive possession) (b) Where ONE OF TWO PERSONS has anything in his custody or possession, with the KNOWLEDGE AND CONSENT of the rest, it shall be deemed to be in the custody of ALL OF THEM (i.e. joint possession) - Note that s 2 of the CDSA adopts this definition of possession - This section creates 3 types of possession: personal possession; constructive possession and joint possession R v York (States the law of manual possession: Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner) FACTS: Two trailers containing furniture shipments were stolen from a yard controlled by PCE Ltd shipments total value exceeded 28 000. The appellant received a telephone call from Mr. Shannon. Mr. Shannon told him that there was "a bunch of stuff" in the warehouse. He asked the appellant if he had put it there. The appellant replied that he had not. They then drove to the warehouse where the appellant noted that there was a trailer backed up into one of the bay doors with no tractor unit hooked to it. When they entered the warehouse, the appellant said he was surprised to see a lot of furniture and lumber and that he did not know where they came from. He telephoned Mark Rogers, the manager, and asked him if he knew anything about the goods in the warehouse. Mr. Rogers told the appellant that he knew about the goods but refused to disclose where they came from. At that time, the appellant realized that the goods were probably stolen. He said he did not think through what he was going to do regarding the goods; he simply wanted to get rid of them. The appellant then borrowed a truck, hooked up the trailer and dropped it off at a location on Carpenter Street, not far from the warehouse, and he was arrested. 3

ISSUE: Whether the Trial Judge Erred in Finding That the Evidence Established Beyond a Reasonable Doubt That the Appellant Possessed the Necessary Mens Rea for the Offence of Possession of Stolen Property REASONING: The appellant testified. He knew the goods were stolen. He also exercised physical control over the goods. However, there was no evidence that he had any intention to use in a prohibited manner (deprive the rightful owner of the stolen goods), which is an essential requirement for possession in law A brief handling of stolen goods with full knowledge of their character solely for the purpose of getting rid of them does not constitute possession, for example This is because conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind. HELD: The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. Appeal allowed COMMENT: Note how the act of possession has a mental element; so sometimes the actus reus and mens rea are not distinct R v Terrence (States the law of joint possession re s 4(3)(b) there must be evidence of knowledge, consent and control over the subject matter re: the person who does not manually possess the stolen goods) FACTS: Respondent, the passenger in a stolen car, was charged with its possession contrary to s. 313 of the Criminal . Code. The respondent testified that he didnt know the car was stolen. There was no direct evidence to contradict his story. ISSUE: The important question raised by this appeal relates to the true meaning to be attached to the word possession as the same occurs in the context of s. 3(4)(b) of the Criminal Code and more particularly whether possession as there employed imports control as an essential element [Now s 4(3)] REASONING: Knowledge and consent under s 4(3) must co-exist with some measure of control over the subject matter HELD: SCC agrees w/ Court of Appeal that control is a central element of possession; Appeal dismissed R. v. Marshall (1969) joint possession, (pot in car from Vancouver- Calgary)- no control, right to control or consent to pots presence. Also no aiding and abetting. R v Pham (States the law in relation to constructive and joint possession: for constructive possession as set out in s 4(3)(a)(i) and (ii) AND joint possession defined in s 4(3)(b), there must be both knowledge and control; And provides an example of how the law of possession is applied) FACTS: There was no evidence of actual possession in that the appellant was not present in the apartment when the search was conducted, so that the Crowns case rested on constructive or joint possession (within a premise). Drug exchanges were occurring at Ps apartment, and a neighbor saw and heard P opening door/collecting money. Nguyen became an occupant of the apartment. On March 3, 2003 at 4:40

p.m. the appellant was seen (by surveillance) to leave her apartment and did not return prior to the seizure of the drugs on March 5, 2003. Nguyen was the only person there during the search. ISSUE: Whether the appellant had knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute constructive or joint possession as defined in paragraphs 4(3)(a) and (b) of the Code. REASONING: In order to constitute constructive possession, there must be knowledge, and some measure of control over the item In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. Whether someone is in possession of something pursuant to section 4(3) of the Code is a question of fact to be determined on the evidence based on the inferences to be drawn in each case The evidence and the trial judges findings support the conclusion that she was in constructive and/or joint possession of the cocaine (the court lists the evidence and findings that exhibit knowledge and control, e.g.the black purse containing the drugs and the bag containing the money were found in full view in the bathroom, a common area of the apartment) . Possession is a Q of fact based on inferences in each case. COMMENT: Remember that knowledge can be established by circumstantial evidence (dont need direct evidence) R v Swaby (An otherwise criminal act cannot be said to be voluntary unless the person is given reasonable time to avoid committing the act)FACTS: The appellant faced two sets of charges. He was charged with possession of an unregistered restricted weapon, possession of prohibited ammunition, possession of a weapon for a purpose dangerous to the public peace, being an occupant of a motor vehicle knowing there was present a restricted weapon for which no occupant held a permit permitting possession, and possession of a firearm with serial number defaced. The Crowns case largely rested on the evidence of Johnson. He testified that the gun belonged to the appellant. Johnson denied any knowledge of its existence until the two were in the appellants car. He swore that as they were driving, the appellant became alarmed by the attention of the police. The appellant told Johnson that he had a gun. The appellant stopped the vehicle, handed Johnson the gun, and instructed him to dispose of it in a backyard. ISSUE: Did the trial judge err in his answer to jury questions relating to the occupant of motor vehicle charge? REASONING The trial judge erred in failing to give the jury a more complete answer to the questions it posed. To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s. 91(3), namely occupancy of the vehicle and the appellants knowledge of the weapon. It is implicit as well that the Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant, as voluntary conduct is a necessary element of 4

criminal liability If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled to an acquittal. HELD: Conviction must be set aside (d) Consent as an Element of the Actus Reus

- Absence of consent by the victim is an important actus reus condition, and must be present for offences to occur - If alleged victim allegedly consented, must also consider whether the consent is obtained lawfully: s 265(3) R v Ewanchuk- Van rape (Explains law on consent in relation to sexual assault, and gives an overview of the elements of a sexual assault) FACTS: Interview in van, E began touching, which progressively became more intimate, notwithstanding complainant saying no. Any compliance by complainant was done out of fear. Trial judge acquitted accused on grounds of implied consent. ISSUE: Whether the TJ erred in understanding of consent in sexual assault and whether his conclusion that the defence of implied consent exists in Canadian law is correct REASONING: A conviction for sexual assault requires proof, beyond a reasonable doubt (B/R/D), of two elements: (1) the actus reus (unwanted sexual touching and absence of consent); (2) the mens rea (the intention to touch + knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched) -TWO DISTINCT CONSENT ANALYSES- mens rea of D, actual consent of victim The Actus Reus: The absence of consent is subjective, determined by reference to the complainants subjective internal state of mind towards the touching. The actual state of mind of the complainant is determinative (purely subjective) While complainants testimony is the only source of direct evidence as to state of mind, credibility must be assessed, in light of ALL EVIDENCE No such thing as defence of implied consent in sexual assault cases. There are only two options: the complainant consented or did not consent To be legally effective, consent must be freely given. If the complainant consented, or there is reasonable doubt about her-non-consent, circumstances might call into question what factors prompted her apparent

consent (see s 265(3), which says that no consent is obtained where the complainant submits or does not resist by reason of: (a) the application of force to the complainant; (b) threats or fear of the application of force to the complainant; (c) fraud; or (d) exercise of authority) So, if established B/R/D that the complainant did not consent, the actus reus is established (assuming there was touching in a sexual manner, and the touching was voluntary). If reasonable doubt as to consent, or established that complainant activity participated in sexual activity, must still consider whether complainant consented because of fear, fraud etc. Mens Rea: The accused might have an honest belief in consent: see s 265(4), which the accused need not assert. Accused simply has to bring forward some evidence to raise this as a possibility, and the court have to assess the evidence (and whether this raises a reasonable doubt over the victims state of mind) HELD: Appeal allowed and conviction entered R v Jobidon fist fight (Cannot consent to the intentional application of force to cause hurt or non-serious bodily harm) FACTS: Accused was charged with manslaughter, through the offence of assault, following a fist fight. Fighting started inside bar, and the parties agreed it was not over after they were kicked out. Outside, when victim was facing J, J struck victim with fist, hitting him hard on head. Victim was knocked to hood of car, and rendered unconscious by initial punch. J continued forward with the beating. Death. ISSUE: Whether absence of consent is an element which must be proved by the Crown in all cases of assault, or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain cases. REASONING: Although all criminal offences are defined in the Code, that doesnt mean that the common law no longer illuminates these definitions, nor gives content to the various principles of criminal responsibility The fact that s 265(3) sets out factors that vitiate consent does not mean that we cannot rely on CL to ascertain other ones. C/l limits on consent. Where two people engage in a fight by mutual consent, the blows struck by each constitute an assault on the other, unless there is justifiable self defence (i.e. you cannot consent to the infliction of bodily injury, or non-trivial bodily harm) The policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game R v Cuerrier- HIV sex (Develops the rules relating to how fraud vitiates consent under s 265(3)) FACTS: The accused was charged with two counts of aggravated assault pursuant to s. 268 of the Criminal Code. Even though he had been explicitly instructed, by a public health nurse, to inform all prospective sexual partners that he was HIV-positive and to use condoms every time he engaged in sexual intercourse, the accused had unprotected sexual 5

relations with the two complainants without informing them he was HIV-positive. Both complainants had consented to unprotected sexual intercourse with the accused, but they testified at trial that if they had known that he was HIV-positive they would never have engaged in unprotected intercourse with him. At the time of trial, neither complainant had tested positive for the virus. The trial judge entered a directed verdict acquitting the accused. The Court of Appeal upheld the acquittals. ISSUE: Whether a complainants consent to engage in unprotected sexual intercourse is vitiated by fraud when partner knows they are HIV positive and either fails to disclose or deliberately deceives her about it? If the consent is fraudulently obtained, can s 268 (aggravated assault) be applicable? REASONING: It is not necessary, when considering whether consent is vitiated under s 265(3) (i.e. consent vitiated by fraud), to consider whether the fraud relates to the nature and quality of the act; all that is required is a fraud and a casual connection between that fraud and the submission or failure to resist What is fraud? It involves: (i) DISHONESTY (determined objectively, ask whether there is deliberate deceit or non-disclosure of the HIV disease; note that the dishonest actions must relate to the obtaining of the consent); and (ii) DEPRIVATION (namely significant risk of serious bodily harm) The greater the risk of deprivation, the higher the duty of disclosure and since the failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences, there exists a positive duty to disclose The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular case R. v. J.A. (SC, 2011) - no unconscious consent, also mentions de minius concept- law does not care for small or trifling things" (e) Causation

- Where the relevant offence prescribes a consequence that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused that consequence beyond a reasonable doubt - So where an offence requires a specific consequence, causation becomes an element of the offence - The offences which prescribe a consequence include: (i) criminal negligence causing bodily harm (s. 221), (ii) criminal negligence causing death (s. 220), (iii) dangerous operation causing bodily harm (s. 249(3)), (iv) dangerous operation causing death (s. 249(4)), (v) impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), (vi) assault causing bodily harm (s. 267(b)),

(vii) aggravated assault (s. 268), (viii) sexual assault causing bodily harm (s. 272(1)(c)), (ix) aggravated sexual assault (s. 273(1)), mischief causing danger to life (s. 430(2)) and (x) arson causing bodily harm (s. 433(b)). - The law on causation, in overview form, is this: (1) Causation involves an analysis into both factual causation (i.e. the medial cause of death) and legal causation (i.e. whether the accused should be held responsible in law) (Menezes):

for that death a moral reaction, a value-judgment whether, in the circumstances, a blamable cause ought to be identified (R v Nette). (ii) Causation expresses an element of fault. That, together with the requisite mental element, is in law sufficient to base criminal responsibility. (2) In the context of homicide, too, the accuseds conduct must be a significant contributing cause of the prohibited act (Nette). (3) Contributory negligence does not negate causation/criminal responsibility (Menezes) (4) Improper medical treatment does not usually break the chain of causation: s 225 Code (5) Note: accused must take victim as you find them (i.e. the thin skull rule) (Menezes) R v Williams (Where Crown cannot prove that the prohibited consequence occurred, the accused cannot be convicted) FACTS: W was HIV positive, and engaged in consensual sex with the complainant, who later contracted HIV. W kept the complainant in the dark about his disease, despite having unprotected sex with her. ISSUE: Whether an accused who fails to disclose that he has HIV to a complainant who, at the time of the alleged assault, could herself have been infected with HIV, can be convicted of aggravated assault. The issue is not with mens rea, the issue is whether the Crown has been able to prove all elements of the actus reus. REASONING: Aggravated assault is an offence based on proof of certain consequences The Crown must establish all of the elements of an assault, plus the aggravating circumstance (in this case, endangers the life of the complainant) Section 268(1) is only one of a number of Criminal Code provisions that call for a more serious charge if certain consequences follow. The Crown was unable to prove the endangerment of life, and therefore unable to prove every element of the actus reus HELD: W acquitted on charge of aggravated assault R v Menezes (Causation is a two stage analysis, requiring factual causation and legal causation) FACTS: Two dudes racing, one dies. Defence says that the accused withdrew from the race at a material time before the accident, and this created a break in the causal linkage to the victims death. Dude pleads not guilty to criminal negligence causing death ISSUE: Whether a person who survived a street race in which the second participating party lost his life can be held criminally liable for that death solely based on his co-participating in the race REASONING: 6

a.

Factual causation:

(i) As there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the primary, or the only cause of death (Menezes). (ii) Regardless of whether the accuseds conduct is the sole cause, ask was it a material cause? The test is this: was the conduct of the accused a significant contributing cause of the prohibited consequence? (iii) If the act of the accused is too remote to have caused the result alleged, causation is not established (iv) If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused (R v Nette). But an intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. The abandonment of conduct requires a positive communication of notice. The sufficiency of the notice is determined by the nature of the offense and the degree of the accuseds participation (v) Factual causation is typically resolved by the but for test b. Legal causation:

(i) Moral blameworthiness. Concerns if accused shd be held criminally responsible in law

Criminal negligence death (not criminally negligent manslaughter-, culpable homicide/murder under 229c) Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of others: Criminal Code, s.219(1). This is a marked and substantial departure in all of the circumstances from the standard of care of a reasonable person In the context of a dangerously negligent act, the mens rea for the offence charged is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally interred from the facts Dangerous driving The crime of dangerous driving, on the other hand, is established where the prosecution proves a marked departure from the standard of conduct of a reasonably prudent driver in all the circumstances: Criminal Code, s.249(1)(a). The basis of liability for dangerous driving is negligence. The question to be asked is not what the accused objectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care Hazard of Racing A death caused as a result of a drivers involvement in a race on a public street can amount to criminal negligence causing death Racing on a public roadway resulting in the death of a passenger in one of the participating motor vehicles can also reasonably be found to constitute dangerous driving Where the victim is the occupant of a third vehicle, dangerous driving may again be the appropriate result Causation A determination of causation requires a finding that the accused caused the death of another both in fact and in law FACTUAL causation is concerned with an inquiry as to how the victim came to his or her death, in a medical, mechanical or physical sense, and with the contribution of the accused to that result. In other words, were the actions of the accused beyond negligible? Where there are multiple operative, independent, and significant contributing causes, competing causes need not be sorted out by the trier of fact in an effort to identify a predominant cause. Regardless of whether the accuseds conduct is the sole cause, was it a material cause? TEST: Was the conduct of the accused a significant contributing cause of the prohibited consequence? If the act of the accused is too remote to have caused the result alleged, causation is not established. Look at facts of case LEGAL/IMPUTABLE causation inquiry concerns whether the accused should be held criminally responsible in law for that death a moral reaction, a value-judgment whether, in the circumstances, a blamable cause ought to be identified (R v Nette). Causation expresses an element of fault. That, together with the requisite mental 7

element, is in law sufficient to base criminal responsibility. In examining the traceable origin of the chain of events causing death, may become an issue. If the act of the accused is too remote to have caused the result alleged, causation is not established. If the accuseds actions are fairly viewed as only part of the history of the setting in which the prohibited result unfolded, without more, causation is not proven: R. v. Cribbin If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused (R v Nette). An intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. The abandonment of conduct requires a positive communication of notice. The sufficiency of the notice is determined by the nature of the offense and the degree of the accuseds participation Application X can be directly responsible for the death of Z, if X and Y were racing, and Y kills Z as a natural result of the racing/criminal negligent driving. Each driver bears equal responsibility for its continued lifespan subject to withdrawal or intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created. This surely includes a risk of bodily harm or death to a co-principal arising out of miscalculation or other judgment error by that individual in the course of, and related to, pursuing the jointly maintained, and unlawfully conducted, dangerous activity. (See R. v. JSR TO downtown shootout.) M was not criminally negligent, but was dangerous driving (judge cites the testimony to show why), but his dangerous operation of the motor vehicle did NOT cause the death of the victim, who chose to maintain excessive speed after the accused slowed down. In these circumstances, if the accused slowed his speed to the range of 60% of that of the deceased nearly half a mile from the point of control loss, there must be a reasonable doubt, although nothing more, that his withdrawal from the race amounted to a sufficiently dramatic lack of commitment to keeping pace for it to be known to Jacob Meuszynski HELD: Guilty only of dangerous driving R v Nette (Leading decision on the standard for causation in criminal offences, including all homicide cases) FACTS: 95 year old lady robbed, tied up with wire on neck, and died. Accused charged w/ 1st degree murder (murder while committing the offence of unlawful confinement under s 231(5)), and 2nd degree murder. Guilty second degree. ISSUE: Determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victims death in a charge of second degree murder. REASONING: There must be factual and legal causation. Factual causation is concerned with an inquiry about how the victim cam to his or her death. Legal causation (which is referred to as imputable causation) is concerned with the question of whether the accused should be held responsible in law (i.e. the inquiry is directed at the question of whether the accused person should be held criminally responsible for the

consequences that occurred). It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra (i.e. more than a trivial cause; significant contribution or cause). C says ok to use different words for different degrees. Causation is usually not in issue in 1st and 2nd degree murder cases, but generally is in manslaughter cases COMMENT: Also, this case deals with the higher standard of responsibility of imputable case (i.e. moral blameworthiness) that is required to secure a first degree murder conviction, and illustrates the thin skull rule (take the victim as you find himcites Smithers). (f) Omissions/Duties

- Some offences dont require a positive act by the accused, but rather can be committed by showing that the accused failed to act, or omitted to act. - To be guilty of omission: (1) The offence must contemplate guilt for omissions (based on statutory interpretation) (2) The accused must be placed under a legal duty to act either by the provision charging him or By some incorporated provision (see ss 215-217) (3) The omission in question must be a failure to fulfil that legal duty R v Moore FACTS: Dude runs red with bike, stopped by officer, refuses to give name and address, and charged with unlawfully and wilfully obstructing a peace officer in the execution of his duty. RULE: Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute. The statute prohibited running light- applied to bikes. R v Peterson FACTS: Dennis Peterson was convicted of failing to provide the necessaries of life to his father, Arnold Peterson, thereby endangering Arnolds life (s 215). D lived with father A (84 yrs old) in messed up house. A wasnt being looked after properly (food, clothes, housing); he fell sick many times etc REASONING: Elements of s 215(1)(c) and s 215(2) (i.e. the relevant sections of the charge) - s 215(1)(c): A duty to provide the necessaries of life arises when: one person is under the others charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life. 8

- The phrase necessaries of life includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm - s 215(2): Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other, without lawful excuse - For sub (2), the personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or she did. - The words without lawful excuse in s. 215(2) provide a defence and serve to prevent the punishment of the morally innocent. The obligation to provide necessaries is not absolute and may be excused, for example, where there is financial inability The Meaning of Under his charge - First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child but also by their relationship to one another in which an element of trust will usually be present - Second, the word charge is not unknown to the criminal law in other contexts involving adults. In the impaired driving context, the court characterized having care, charge or control of a vehicle as requiring a kind of domination as in the masterservant relationship and as in the parent-child or teacher-beginner relationship - Used in these contexts the word charge connotes, among other things, the duty or responsibility of taking care of a person or thing - In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to understand and appreciate their circumstances is a factor to consider. A parent who is not in full possession of his or her faculties may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the capacity to understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury - The evidence to the TJ indicated that the appellant was in charge of his father, and that the father was unable to withdraw from his sons charge HELD: Appeal dismissed; TJ findings stand R v Browne FACTS: The appellant, Dexter Browne, was charged with criminal negligence causing the death of Audrey Greiner by failing "to render assistance to [her] by failing to take her immediately to the hospital after undertaking to render such assistance. A and B (drug dealers) were friends. A swallowed a plastic bag containing crack cocaine to avoid its detection by police after being stopped. A began shaking and sweating in Bs room. B made a statement (at 2 am) which the TJ found to be an undertaking pursuant to s 217 (he said he was going to take A to the hospital). A arrived at 3:10 am dead at hospital by taxi. The TJ held that using a taxi instead of 911 constituted a

wanton and reckless disregard for As life, contrary to s 219 (criminal negligence) ISSUE: Whether the trial judge erred in concluding that the appellant had caused Audrey Greiner's death by breaching a legal duty arising from an "undertaking" within the meaning of s. 217 of the Criminal Code to take her to the hospital. Only if the appellant can be found to have given an undertaking giving rise to a legal duty under s. 217 can he be found criminally negligent for "omitting to do anything that it is his duty to do" within the meaning of s. 219 of the Code. REASONING: Given serious penal consequences of being convicted of causing death by criminal negligence, the relevant undertaking must have been made with binding intent The evidence doesnt disclose any undertaking of a binding nature; the words ill take you to a hospital hardly constitute an undertaking creating a legal duty under s 217 [2] SUBJECTIVE MENS REA

R v Levigne (SC, 2010)- luring a child online, statutory presumption of knowledge, 172.1(3). R v Murray (M intended to hold the Bernardo tapes, but not for the purpose of wilfully attempting to obstruct justice (s 139(2)), and therefore he could not be found guilty. Wilfully constitutes the mens rea - is the act is done for the purpose of obstructing the course of justice. This is a specific intent offence and the onus is on the Crown to prove that Murray, when he secreted the tapes, intended to obstruct the course of justice) (c) Subjective Mens Rea with Objective Actus Reus

- Subjective mens rea is normally gleaned circumstantially, including by using the common sense inference that persons usually intend the natural consequences of their acts (e.g. Daviault) - Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles - If an offence specifies the relevant state of mind, then only that state of mind will suffice (e.g. assault requires intentional touching, and not simply reckless touching) - If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or recklessness in bringing about the consequence will suffice - In what follows, the most common mental states are illustrated and identified (a) Intention, and Ulterior Mens Rea - The accused must have the very intention required by the relevant provision R v Vandergraff peanut butter/hockey rink. (V intended to throw the object, but not make contact with the victim, and therefore the assault was not intended. The assault provision, s 265, requires the intentional application of force to the person) (b) Knowledge - The accused must generally know that the conditions of the actus reus exist. E.g., an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer - Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, UNLESS the accused presents a mistake of fact defence R v Ewanchuk- Van rape- knowledge/recklessness of consent. 9

- Some criminal offences use standards to define criminal conduct (e.g. dishonest; sexual etc). - It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow. E.g. An accused can commit fraud even if he does not appreciate that the relevant transaction was dishonest R v Theroux (The dishonesty actus reus in fraud is determined objectively, but subjective mens rea about performance of prohibited act) FACTS: Accused, being directing mind of company, made false representations in order to secure unsecured deposits. Company later became insolvent, and investors lost deposit money. TJ convicted accused ISSUE: Whether the fact that the accused honestly believed that the project would be completed negates the mens rea of the offence of fraud. There is no doubt that the appellant deliberately practised a deceitful act, constituting the actus reus of the offence of fraud. REASONING: Fraud: The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete HELD: The appellant is guilty of fraud. The actus reus is established: the appellant committed deliberate falsehoods, which caused deprivation. The mens rea is established: the appellant told the depositors they had insurance protection when he knew that they did not (i.e. he knew this to be false; and it may be inferred from his possession of this knowledge that the appellant knew that he was placing the depositors money at risk) R v Chase (The sexual part of a sexual assault is determined objectively, not subjectively) FACTS: C enters victims home and touches breasts, and tries to touch vagina- but

doesnt. Appeals-sexual= genatalia. ISSUE: The definition of sexual assault REASONING (SC): The test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy. The test to determine whether the assault is sexual is an objective one, viewed in light of all circumstances is sexual assault visible to reasonable person. The intent purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only (i.e. the Crown need only prove that the accused intended to touch the complainant) HELD: Guilty of sexual assault (d) Willful Blindness - Willfull blindness is related to, but distinct from, recklessness R v Duong (The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry) FACTS: Ds friend commits murder, and then stays at Ds apartment, after indicating he was in trouble for murder and had no place to go. The trial judge held that the Crown had to prove that the appellant knew that Lam was a party to a murder when the appellant agreed to hide him from the authorities, and that wilful blindness of that fact would suffice to establish the necessary culpable mental state. ISSUE: Did the trial judge err in holding that the doctrine of wilful blindness was applicable and that the appellant was wilfully blind as to whether Lam had committed murder? REASONING: Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry Wilfull blindness will fulfill a mens rea requirement Liability based on wilful blindness is subjective HELD: D was wilfully blind in this case R v Vinokurov (Wilfill blindness is imputed knowledge, and will fulfil the mens rea requirement, while recklessness is something less than that; where an offence requires knowledge on the part of the accused, recklessness is not applicable) 10

FACTS: V charged w/ possession of stolen property. V, owner of store, received stolen property, which he claimed he did not know was stolen. ISSUE: Whether V knew the property was stolen REASONING: When the term knowingly is used in a criminal statute, the reasonable person standard will not satisfy the mens rea requirement Wilfull blindnesss will fulfil the mens rea requirement. Wilfull blindness is imputed knowledge, while recklessness is something less than that. So, where an offence requires KNOWLEDGE on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfied that requirement Thus, recklessness cannot satisfy the knowledge requirement on a charge of possession of stolen property (e) Recklessness - Recklessness is a subjective state of mind, whereby it is objectively unjustifiable to take a risk that the accused personally foresees will lead to a prohibited consequence - Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of mens rea - See also wilful blindness below R v Buzzanga and Durocher wilfully for hate crimes doesnt include recklessness. French-Canadians write anti-frenech literature to spread knowledge of bias no intent to promote hate. R v J.SR - JSR intended to shoot into a crowd, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out. 2nd degree murder charge allowed its not objective standard, if conduct proven, conduct would meet the high degree of moral blameworthiness needed to justify the stigma of a murder conviction for culpable homicide under 229. [3] OBJECTIVE MENS REA (Negligence) AND TRUE CRIMES

- The criminal law has been uncomfortable with objective fault, but has gradually accepted it for certain types of offences - For crimes using objective fault as mens rea, penal negligence (a more restricted form of negligence) is required. - The exception, though, is with predicate offences i.e. aggravated forms of offence s that apply when serious consequences result, and include within their elements another complete (but lesser offence). For predicate offences, it is enough if the accused commits the underlying (or predicate) offence, and that the aggravated consequences was simply objectively foreseeable R v Martineau (Conviction for murder cannot rest on anything less than subject foresight of death- felony murder) FACTS: Martineau and a friend, Tremblay, set out armed knowing that they were going

to commit a crime; Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed two people after robbing them and their house. ISSUE: Is the offence of constructive murder unconstitutional? REASONING: Elements of crime must exist in accordance w/ the principles of fundamental justice s 230 expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section stands as an anomaly as regards the other murder provisions It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. HELD: S 230 (a) and (c) are invalid Morally innocent should not be punished - (Vaillancourt principle)

bodily harm that is non-trivial (R. v. DeSousa) (part of mens rea) (2) Did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted. [NOTE: Personal factors are not relevant in this assessment, except on the question of whether the accused possessed the necessary capacity to appreciate the risk]. Principle that law will not convict morally innocent. Criminal negligence manslaughter (1) Criminal negligence manslaughter requires (i) an act that exhibits a marked departure from the standards of a reasonable person in all of the circumstances (i.e. the definition of criminal negligence in s 219 must be satisfied) (this is the actus reus) AND (ii) objective forseeability of the risk of non-trivial bodily harm (forseeability of death is not required) (this is the mens rea) (2) Did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted. Personal factors are not relevant, except on the question of whether the accused possessed the necessary capacity to appreciate the risk. HELD: The offence is not unconstitutional. R v Beatty (Defines the elements of the dangerous operation of a motor vehicle offence, s 249) FACTS: The appellant, Justin Ronald Beatty, was charged with three counts of dangerous operation of a motor vehicle causing death. The tragic accident that gave rise to these charges occurred when Mr. Beattys pick-up truck, for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. B says I just lost consciousness momentary a few seconds. REASONING: (i) Actus reus: The accused was driving dangerously, in light of all the circumstances, which is what is required in s 249 to satisfy the actus reus. (ii) Mens rea: The mental element in dangerous operation doesnt require proof of a positive state of mind, such as intent or recklessness. And, indeed, there is no evidence here of any deliberate intention to create a danger for other users of the highway that could easily provide an aswer to this question. Hence, the trial judge was correct in finding that the question of mens rea in this case turns on whether Mr. Beattys manner of driving, viewed on an objective basis, constitutes a marked departure from the norm of a reasonable person in circs of the accused. By contrast, it is my respectful view that the Court of Appeal leaped too quickly to the conclusion that the requisite mens rea could be made out from the simple fact of the accident occurring, leaving no room for any assessment of Mr. Beattys conduct along the 11

R v Creighton (Defines unlawful act and criminal negligence manslaughter; and upholds the constitutionality of the manslaughter offence) (Cf Brown for omission of duty) FACTS: Mr. Creighton was convicted of manslaughter, arising from the death of Kimberley Ann Martin, who died as a result of an injection of cocaine given by Mr. Creighton. The trial judge found that the death constituted manslaughter either on the ground that it was caused by an unlawful act, or on the ground that it was caused by criminal negligence. ISSUE: Is the manslaughter offence unconstitutional b/c it requires only objective foreseeabiltiy of the risk of bodily harm, and not forseeability of death? REASONING: Background Manslaughter is a crime of venerable lineage. It covers a wide variety of circumstances. Two requirements are constant: (1) conduct causing the death of another person; and (2) fault short of intention to kill. The mens rea requirement of foreseeability of harm (rather than death) is entirely appropriate to the stigma associated with the offence of manslaughter. By the very act of calling the killing manslaughter, the law indicates that the killing is less blameworthy than murder. Fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences. That fault may consist either in committing another unlawful act which causes the death, or in criminal negligence. The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide Unlawful act manslaughter (1) Unlawful act : The unlawful act must be (i) objectively dangerous (i.e. one that is likely to subject another person to danger of harm or injury and a non-absolute liability offence) (R v DeSousa) (this is the actus reus) (ii) there must be intent to commit this underlying act (part of mens rea (iii) as well as objective forseeability of the risk of

continuum of negligence. Difference bet civil and penal negligence- momentary lapse insufficient to support objective std- acquitted. (See Menzes) [3a] CAUSATION PT 2 - CONSEQUENCES

R v DeSousa (Defines the elements of the offence of unlawfully causing bodily harm, s 269) FACTS: The appellant was involved in a fight in which a bystander was injured when a bottle allegedly thrown by the appellant broke against a wall and a glass fragment from the bottle struck the bystander ISSUE: Does s 269 violate s 7 of the Charter? There are two underlying issues: (i) the mental element required by s. 269 and whether this element is constitutionally sufficient and (ii) whether s. 7 of the Charter requires as a constitutional minimum, foresight of each or any of the consequences that comprise the actus reus of an offence. REASONING: To be brought within the ambit of s 269, the accused must have committed an (i) underlying unlawful offence that is objectively dangerous (i.e. one that is likely to subject another person to danger of harm or injury and a non-absolute liability offence), and (ii) intent to commit the underlying offence (part of mens rea) (ii) have caused (i.e. for liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offence committed) (part of actus reus) (iii) bodily harm to another person as a result of committing that underlying offence which is neither trivial nor transitory) (part of actus reus) (iv) while having objective foresight of bodily harm (part of mens rea) Note this bodily harm will in most cases involve an act of violence done deliberately to another person. No const requirement for intent to extend to consequences of unlawful acts in punishing for unforseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful acts. R v Bernard (Sexual assault causing bodily harm is a general intent offence, and therefore simple intoxication doesnt work as a defence) FACTS: B committed the sexual assault upon the eighteen-year-old complainant in his apartment. It was conceded that intercourse had taken place without the consent of the complainant. During the course of the assault, the appellant punched her, caused an injury to her eye, and threatened to kill her. B charged w/ sexual assault causing bodily harm (s 246.2(c) ISSUE: The intoxication defence; distinguishing between general and specific intent crimes [4] EXTENSIONS OF CRIMINAL LIABILITY 12

(a) Aiding and Abetting - Can be convicted for aiding (physically supporting) or abetting (encouraging) the accused to commit the offence - Can be convicted for not only the offences they intended to aid or abet, but also another offence, provided that it is a foreseeable outcome of the offence they did intend to aid or abet - See CC s 21 R v. Briscoe kidnapping, rape and murder. Briscoe stood around, requisite knowledge of intent to commit crimes? Yes. Canadian crim law doesnt distinguish between primary offender and parties to an offense (aiding and abetting). Mens rea for purpose of aiding principal offender with crime. Aider must know of intent for murderbut doesnt have to share mens rea of killer. R v Dunlop and Sylvester (Mere presence, and passive acquiescence, at the scene of a crime is not sufficient to ground culpability by way of s 21(b) and (c) aiding and abetting. Some ACTIVE steps must be taken. HOWEVER, presence at the commission of an offence CAN be evidence of aiding or abetting if accompanied by other factors such as prior knowledge of the principal offenders intention to commit the offence) FACTS: Complainant raped by 18 men, while she was being held by 2. She pointed to Dunlop and Sylvester as two of the men who raped her. The judge chose to instruct the jury upon parties to an offence under s. 21 of the Code, and it is in this respect that the convictions are challenged. REASONING: The law Mere presence, and passive acquiescence, at the scene of a crime is not sufficient to ground culpability. Some active steps must be taken by word or action. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. Application In this case there was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape of the complainant There was no evidence of any positive act or omission to facilitate the unlawful purpose. One could infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passersby, but that was not sufficient. A person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended The evidence failed to disclose any facts as distinguished from surmise or suspicion, upon which a jury could conclude beyond reasonable doubt that the accused had

assumed a role which would qualify them as aiders and abettors under s. 21(1) of the Code HELD: The TJ erred in instructing the jury about s 21 R v Logan (Analyzes the constitutionality of s 21(2) common purpose liability in relation to the offence of attempted murder. Reads down to require subjective for murder offenses.) FACTS: L and a few others were charged with a number of offences arising from a serious of robberies, clerk shot and injured. This appeal pertains only to the charges against the two respondents for attempted murder which resulted from an incident during one of the robberies ISSUE: The only issue before this Court is the constitutionality of s. 21(2) of the Criminal Code. REASONING: The appellant is challenging the constitutionality of s. 21(2) in general and, in particular, of the objective component of the section ("ought to have known"). The Court of Appeal, quite correctly, did not declare the objective component of s. 21(2) inoperative for all offences. They dealt specifically with the operation of the provision in relation to the offence of attempted murder and the possibility that a party to an attempted murder could be convicted upon proof of objective intent, whereas a conviction of the principal would require proof of subjective intent With respect, I cannot construe Vaillancourt as saying that, as a general proposition, Parliament cannot ever enact provisions requiring different levels of guilt for principal offenders and parties That said, however, there are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused under s. 7. If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum I would declare inoperative the words "or ought to have known" when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose. (b) Counselling - An accused can be convicted of counseling offences, whether or not the offences counseled are actually committed. If the accused counsels another person to commit an offence, and the offence is committed, then s 23 operates. If the offence isnt committed, then s 464 operates. R v Hamilton (Defines the elements for counselling an offence) FACTS: H offered for sale through the Internet access to a credit card number generator. Mr. Hamilton was charged under s. 464(a) of the Criminal Code, R.S.C. 13

1985, c. C-46, in four separate counts, with counselling the commission of indictable offences that were not in fact committed. The trial judge was not satisfied that Mr. Hamilton had acted with the requisite mens rea, or culpable intent, and she therefore acquitted him on all four counts ISSUE: Whether the TJ erred as to the issue of mens rea REASONING: The actus reus for counselling is the active inducement of the commission of a criminal offence. The mens rea consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accuseds conduct. The trial judge acquitted the accused on the count of counselling fraud because his motivation was mercenary as opposed to malevolent. The trial judges conclusion that the accused did not intend to induce the recipients to use those numbers is incompatible with the plain meaning of the teaser e-mail and with her other findings of fact, including her finding that the accused understood that the use of the generated numbers was illegal. Her assertion that [h]is motivation was monetary immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial. HELD: The trial judge confounded motive and intent, and H should be found guilty of the offence (c) Corporate and Association Liability

- See ss 22.1, 22.2 - Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devises to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do NOT apply to regulatory offences. - For true crimes, the Criminal Code sets out standards for corporate and association liability Elements of Offences - Section 22.1 (applies to objective fault or negligence offences where an association is charged only look at conduct of corporation): An organization is party to an offence if: (a) One or more of the corporations representatives alone or together do, or fail to do, anything that amounts to an offence of negligence on their part, WHILE acting within the scope of their authority; AND (b) Conduct of one or more senior officers of the organization responsible for the aspect of the organizations activities that is relevant to the offence. His/her or their conduct must

amount to am marked departure from what would reasonably be expected to prevent a representative from being a party to the offence. - Section 22.2 (applies to offences other than negligence-based offences): An organization is a party to an offence if, with the INTENT at least in part to benefit the organization, one of its senior officers: (a) Is a party to the offence (i.e. the non-negligence offence), while acting within the scope of their authority; OR (b) Directs the work of other representatives of the organization so that they do or fail to do things that are the external circumstances of the offence charged OR (c) Fails to take all reasonable measures to stop a representative of the organization, whom the senior officer knows is (or is about to be) a party to the offence, from being a party [Note: for s 22.1, in addition to any mental element that must accompany the external circumstances, the acts or omissions of the senior officer, the Crown must prove that a senior officer had the ulterior intent, at least in part, to benefit the organization by the prohibited conduct] - Section 22.2 applies to subjective mens rea offences charged against an association - See DEFINITIONS of organization, representative and senior officer: s 2 [5] ATTEMPTS

reus, that is, some step towards the commission of the offence attempted beyond mere acts of preparation Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done Here, the completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill. MR for attempted murder is the specific intent to kill. An attempt to murder, aimed at the completion of the full crime of murder, should not have an intent lesser than that of murder Mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder. HELD: New trial ordered R v Deustch (Sets out how to distinguish between attempts and mere preparation, which does not constitute an attempt focussing on the actus reus of an attempt) FACTS: Accused charged with attempting to procure female persons to have illicit sexual intercourse with another person. The accused posted ads for a secretary/sales assistant. Three women and a policewoman testified that the accused indicated that the job required sexual intercourse with clients to conclude contracts. Generous salary $$$ was promised. Trial judge acquitted on the basis that his acts did not go far enough because he had not offered the job to the woman. ISSUE: How to distinguish between an attempt and mere preparation REASONING: There is no clear line between attempt and preparation. The difference between attempt and preparation is qualitative, involving the relationship between the nature and quality of the act in question and the nature of the complete offence 1. Define the nature of the actus reus of completed offence. 2. Consider factors of proximity (how close was the completed offence?): Time, location, and acts under the control of the accused. HELD: The accused is guilty of attempting. I agree with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. There would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment R v Dery (No such offence as attempting to conspire to do X) 14

- See s 24 for definition of attempts - See ss 463 and 465 Fact that an offence is legally impossible in the factual circumstances is no defence to an attempt charge, but it is not an offence to try to commit an act you believe is an offence, when it is not actually an offence. R v Ancio (For one to be guilty of an attempt, they must intend to commit the completed offence, and to have some act toward the accomplishment of that objective; e.g. for murder, there must be the intent to kill) FACTS: Accused broke into estranged wifes apt. w/ a loaded gun; dude throws chair at him and gun goes off; convicted at trial of attempted murder b/c judge found that he broke in w/ intent to use weapon to force his wife to leave; C.A. overturned conviction and ordered a new trial ISSUE: What is the intent/MR reqd for an attempt to commit murder? REASONING: As with any crime, to be convicted of an attempt, the Crown must prove mens rea, that is, the intent to commit the offence in question, and the actus

FACTS: D convicted of attempting to conspire to commit theft, and of attempting to conspire to unlawfully possess proceeds. Never before has anyone been convicted in Canada of an attempt to conspire to commit a substantive offence of any sort. There was no evidence that either accused had taken any steps to carry out the proposed theft, and the trial judge was not persuaded that they had at any point agreed to steal or possess the liquor that was the object of their covetous musings: (2002), 7 C.R. (6th) 325. In the absence of a proven agreement, the judge quite properly felt bound to acquit the accused of the conspiracies charged. On each count, however, he convicted both co-accused of attempting to conspire, which he believed to be an included offence. ISSUE: Whether there is any legal basis for concluding that attempt to conspire to commit an indictable offence is a crime in Canada. HELD: No such offence

would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability (So, here, prosecution must prove the act B/R/D, and it is open to accused to avoid liability by proving, on a BoP that he took all reasonable care). PRIMA FACIE, public welfare offences fall into this category. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault (the principle that punishment should in general not be inflicted on those without fault applies). Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. To determine if an offence is one of absolute liability, consider: the overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used. R v Sault Ste. Marie (Distinguishes b/w the three types of offences: mens rea offences, strict liability and absolute liability offences; also discusses the defence of due diligence) FACTS: The City of Sault Ste. Marie was charged that it did discharge, or cause to be discharged, or permitted to be discharged, or deposited materials into Cannon Creek and Root River, or on the shore or bank thereof, or in such place along the side that might impair the quality of the water in Cannon Creek and Root River. ISSUE: Whether the City is guilty of an offence under s 32(1) of The Ontario Water Resources Commission Act REASONING: Regulatory offences are not criminal in any real sense but are prohibited in the PUBLIC INTEREST; although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in substance civil in nature. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like. In this appeal we are concerned with pollution. Here, the Ontario Water Resources Commission Act s 32(1) There is no presumption of full mens rea, because (a) this is a public welfare offence; (b) it comes from a provincial statute What category of offence is it then? The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: cause and permit. These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. The conflict in the above authorities, however, shows that in themselves the words cause and permit, fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such as knowingly or wilfully expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability. Therefore, proof of the act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care. Actus reus: The prohibited act would, in my opinion, be committed by those who 15

REGULATORY OFFENCES
- The following are some general points about regulatory offences: - They can be full mens rea offences (like true crimes), but must be a clear indication that mens rea is required - They are presumed to be strict liability offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction) - Some operate as absolute liability offences, and will be committed whenever the relevant actus reus is proved - It is important to be able to distinguish b/w true crimes from regulatory offences- The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with willful blindness toward them. Mere negligence is excluded. (R v Sault Ste. Marie) 3 categories of offences: (R v Sault Ste. Marie) 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence (Public welfare offences will only fall into this category if such words as willfully, with intent, knowingly, or intentionally are contained in them; also, if the offence is a true crime, then there is a presumption of full mens rea) 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving on a BoP that he took all reasonable care. Defense of reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused honestly and reasonably believed in a mistaken set of facts which, if true,

undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do so. The causing aspect centres on the defendants active undertaking of something which it is in a position to control and which results in pollution. The permitting aspect of the offence centres on the defendants passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. The close interweaving of the meanings of these terms emphasizes again that s. 32(1) deals with only one generic offence. Defence of reasonable care Reference re Section 94(2) of the Motor Vehicle Act (BC) (Absolute liability and imprisonment cannot be combined) ISSUE: Is the relevant section of the Motor Vehicle Act in contravention of s 7 of Charter? REASONING The words principles of fundamental justice do not refer to procedure only. The proper approach to the definition of the rights and freedoms guaranteed by the Charter is a purposive one. The principles of fundamental justice are to be found in the basic tenets of our legal system. The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right. Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law. Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system. Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves It has long been recognized that the innocent not be punished. A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person. Obviously, imprisonment (including probation orders) deprives persons of their liberty. I am therefore of the view that the combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one's rights under s. 7. An absolute liability, which makes a person liable for an offence whether or not they took steps not to be at fault, violates the principles of fundamental justice. Therefore, 16

any possibility of a deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. It is only through reasons of public interest can such offences be saved through section 1 of the Charter. The Crown failed to show that the public interest of ridding the roads of bad drivers could be proportional to the limiting of people's rights by imprisoning them HELD: The section is unconstitutional R v Cancoil Thermal (If a regulatory offence is intended to be one of absolute liability based on an analysis of the wording of the offence, AND if that offence has as a potential punishment of imprisonment, then a court must interpret that offence to be one of strict liability to make it conform to the Charter) FACTS: Owners of a company took the guard off a piece of machinery, ostensibly in violation of an Ontario statute, and an employee cut his fingers down to the first joint. A violation of the impugned Act entailed a possible prison sentence ISSUE: Should the impugned section of the act be treated as an absolute liability offence? Note: There was a specific exclusion of a statutory due diligence defence to the relevant offence AND conviction of the relevant offence can lead to person being fined max 25 000 or imprisoned for 12 months max REASONING: The specific exclusion of a statutory defence for this offence (although provided for other offences in the Act), suggests that the Legislature had determined that the subsection creates an absolute liability offence But if that subsection were treated as creating an absolute liability offence, it would offend s 7 of the Charter --- In Reference re s. 9.4(2) of Motor Vehicle Act 1985 CanLII 81 (S.C.C.), (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, the Supreme Court of Canada held that the combination of absolute liability and the potential penalty of imprisonment was a violation of s. 7 of the Charter To avoid a violation of s.7 of the Charter, [the impugned provision] must be treated as creating a strict liability offence. The defence of due diligence was available to the respondents. R v Chapin (Example of classifying an offence into one of the three categories) FACTS: Duck hunter, charged under Migratory Birds Regulations. Unlawful to hunt for migratory birds w/ing one quarter mile of a place where bait/grain has been deposited. It was a windy day. When she walked over the boards, in hip waders and carrying a gun, her sole concern was to avoid falling into the water. ISSUE: What category of offence is the following: 14. (1) Subject to subsection (2), no person shall hunt for migratory game birds within one-quarter mile of any place where bait has been deposited? Note: Section 12(1) provides: 12. (1) Every person who violates this Act or any regulation is, for each offence, liable upon summary conviction to a fine of not more than three hundred dollars and not less than ten dollars, or to imprisonment for a term not exceeding six months, or to both fine and imprisonment REASONING: (1) What category of offence is it (re: Sault Ste Marie)?

 It is NOT a mens rea offence: One would be hard pressed to characterize the offence created by s. 14(1) of the Migratory Birds Regulations as a crime in the true sense. Violation is punishable upon summary conviction and not indictment. One must note the absence of the usual signals connoting mens rea such as wilfully or with intent. The Migratory Birds Convention Act is a regulatory statute enacted by the Parliament of Canada for the general welfare of the Canadian public. S 14(1) of the Migratory Birds Regulations creates a public welfare offence which is not criminal in the true sense and it is therefore not subject to the presumption of full mens rea. It is NOT an absolute liability offence: The language of the offence is straightforward, No person shall. Yet there is not a strict prohibition on hunting, rather a hunt controlled within certain limits as to season, methods, and types and numbers of species taken. Nor can one ignore the controls on shipment and export of game, nor the stricter controls in certain prescribed geographic areas for the control and management of such area. Also note the SERIOUIS PENALTY The best the Crown can do to shift this offence into the category of absolute liability is to suggest that the availability of a defence of reasonable care would considerably weaken the enforcement of the legislation. This may be true, but as Weatherston J.A. observed, the problems that may be encountered in the administration of a statute or regulation are a very unsure guide to its proper interpretation. Difficulty of enforcement is hardly enough to dislodge the offence from the category of strict liability, particularly when regard is had to the penalties that may ensue from conviction It IS a strict liability offence: Because its a public welfare offence, prima facie falls into this category. Further, it is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent. (2) Convicted? No Levis (City) v Tereault (Illustration of due diligence defence failing) FACTS: Respondent convicted of motor vehicle related offences under the Highway Safety Code (namely having put a motor vehicle into operation w/out having paid registration fees). The postal service did not deliver the notice of registration renewal, which it returned to the SAAQ on February 14, 2002. In April 2002, the police stopped the vehicle and observed that its registration had expired due to a failure to pay the fees for the year in progress and had not been renewed. A complaint was then brought against the company, and it is in issue here. ISSUE: What type of offence is this? Should the conviction stand? REASONING: The offences with which the respondents are charged belong to a vast category of offences known as regulatory offences Classifying the offence in one of the three categories now recognized in the case law thus becomes a question of statutory interpretation Dickson J. noted that regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences. As a general 17

rule, in accordance with the common law rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belong to the intermediate category (strict liability) Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent; This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself: The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations . . . . NOT a mens rea offence: Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence. The provision in no way places the burden of proving mens rea on the prosecution. Nor does it include any expression of the legislatures intent to create an absolute liability offence. Furthermore, such an intent cannot be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers licences without it being necessary to deprive an accused of a due diligence defence. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence. Due diligence? In Mr. Ttreaults case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizens civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case. The Municipal Court should have found the respondent guilty as charged and imposed the fine prescribed by law. HELD: Conviction stands

** Regulatory Offence Framework Answer **

STEP 1: What category of offence is this? - Classifying the offence into one of the 3 types identified in R v Sault Ste Marie is a matter of statutory interpretation: (1) Is the offence a TRUE CRIME or a REULGATORY/PUBLIC WELFARE OFFENCE? (a) If its a true crime, then theres a presumption that its a full mens rea offence, and, to rebut the presumption, you would have to establish why it should not be a mens rea offence (by analysing the language of the offence): (i) If committing the offence is punishable upon summary conviction and not indictment, this is suggestive of a regulatory offence, and not a true crime (R v Chapin) (ii) if the offence comes from a provincial statute, this leans toward it being a regulatory offence and not a true crime (R v Sault Ste Marie)] (b) If its a public welfare offence (which, on the exam, it is likely to be), then there is a presumption that the offence is a strict liability offence [Note: such offences relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like] -- On exam, it will likely be presumed to be a public welfare offence, and prima facie a strict liability offence. But you always go through each category and analyse whether the offence belongs in it: (2) Is it a MENS REA offence? Look for the words like wilfully, knowingly, with intent, intentionally etc. But words like cause or permit do not indicate a mens rea offence (R v Sault Ste Marie). If not, consider the next question (3) Is it a STRICT LIABILITY OFFENCE (R v Sault Ste Marie). Look at the wording of the statute, its purpose, and see if the public interest is the focus here; if it is, then the strict liability presumption will arise. (4) Is it a ABSOLUTE LIABILITY offence? Consider the overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the 18

penalty, and the precision of the language used. There must be CLEAR proof of legislative intent for it to be an absolute liability offence. E.g. in R v Chapin, look at whether there is a STRICT prohibition of the relevant act in that case, there were certain limits placed on hunting, but it was not an all or nothing prohibition, so that pointed towards it not being an absolute offence E.g. in R v Chapin, there was a serious penalty, which pointed towards it not being an absolute liability offence Note: If a regulatory offence is intended by Parliament/Legislature to be one of absolute liability, and that offence has as a potential punishment imprisonment, then a court must interpret the offence to be one of strict liability to make it conform to the Charter (R v Cancoil Thermal)

STEP 2: Should the accused be convicted of the offence? (1) If the offence is one of: a. Strict liability: Then the proof of the act prima facie imports the offence, but the accused may avoid liability by proving that he took all reasonable care (i.e. the defence of due diligence). That is, the prosecution must prove the act B/R/D, and the accused can attempt to prove the due diligence defence on a BoP. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] Passivity cannot amount to due diligence (Levis v Tereault) b. Mens rea: Then the prosecution must prove the prohibited act and the relevant mental state B/R/D. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] c. Absolute liability: Then proof of the act imports the offence, and there is no defence of due diligence. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] [Note: Try and apply the cases above as much as possible, and show command of the relevant law in this area]

DEFENCES
Ordinary affirmative defences (duress, provocation, intoxication, self-defence) Air of reality test- the test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit (assuming

the evidence to be true). Once the issue has been put in play through evidence the defence will succeed unless it is disproved by the Crown beyond a reasonable doubt. (Fontaine) R v Cinous (In criminal cases, the accused may have an evidential burden where she seeks to rely upon positive defences, like self defence; Air of reality test is well established: in other words, a defence should be put to a jury if and only if there is an evidential foundation for it. Whether there is an air of reality to a defence is a question of law. Two principles derive from this test: (1) a judge must put to the jury all defences that arise on the facts which have an air of reality (2) they must keep from the jury defences lacking an evidential foundation. In applying the test, look at the totality of the evidence, and the purpose is not aimed at establishing the substantive elements of the defence. Here, three conditions of self-defence were not all met on the facts of this case, the defence lacked the "air of reality" required in order to warrant leaving it with the jury Reverse onus defences, like automatism BoP on D to put forward evidential (Question of law) and persuasive burden (question of fact) on balance of probabilities. (Fontaine-automatism.) R v Fontaine (Putting in play reverse onus defences just requires evidential, not persuasive burden): In Stone, it appeared that the accused needed to discharge a persuasive burden before the jury could even hear the defence of non-mental disorder automatism. In Fontaine, the Court altered this. It was held that all the accused has to do is put forward evidence on balance of probabilities capable of supporting the defence. Statutory presumptions -- may be justified under Charter s.1. Oakes- Possession for the purpose of trafficking, no rational connection under s.1, overtuned under 11(d)). But White-- The presumption that you are in control of a vehicle if you are in the drivers seat violates the Charter but is saved by s.1. Whyte (proven fact = he was drunk in the drivers seat, presumed fact = he drove i.e. had care and control over the vehicle. See also R v. Levigne, s.172.1(3). R v Oakes)- If an accused bears the burden of disproving an element of the offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue. [1] MENTAL DISORDER

responsible for an act committed or an omission made: (i) While suffering from a MENTAL DISORDER; AND EITHER (ii) the mental disorder rendered the person INCAPABLE OF APPRECIATING THE NATURE OR QUALITY of the act or omission OR (iii) the mental disorder rendered the person INCAPABLE OF KNOWING THAT THE ACT WAS WRONG. BoP: Once the evidence is sufficient to indicate that an accused suffers from a condition which could in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed-, on a balance of probabilities

Mental disorder, defined as a disease of mind: s 2: Disease of the mind -- embraces any illness, disorder, or abnormal condition which impairs the human mind and its functioning, EXCLUDING however, self-induced states caused by alcohol or drugs, AS WELL AS transitory mental states such as hysteria or concussion. (R. v. Cooper) Disease of the mind - contains a substantial medical component as well as a legal or policy component. Because disease of mind is a legal concept, a TJ cannot rely blindly on medical opinion. (R v. Parks) o Medical component of the term, generally, is the medical opinion as to how the mental condition in question is viewed or characterized medically o Legal or policy component relates to: (a) the scope of the exemption from criminal responsibility to be affored by mental disorder; and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered state Two distinct approaches to the policy component in automatism cases: Any condition likely to present recurring danger should be treated as insanity. The purpose of the insanity defence has always been the protection of the public against recurrent danger Condition stemming from the internal make-up of the accused, rather than external factors, should lead to a finding of insanity

- Principle that accused is not legally responsible for acts resulting from mental disease or mental defect. - Everyone in criminal law is presumed to be sane (Parks), and must satisfy the requirements in s 16 to prove otherwise - Section 16 modifies common law defence of insanity: No person is criminally 19

R v Parks (Look at both medical/expert evidence and legal/policy considerations, namely continuous danger and internal cause theories, to determine whether the automatism defence can succeed) FACTS: In the early morning of May 1987, Ken Parks drove to the house of his

wife's parents. He attacked both of them with a kitchen knife, killing the mother and leaving the father seriously injured. Following the attack Parks went to the police station and turned himself in ISSUE: The issue before the Supreme Court was whether the condition of sleepwalking can be classified as non-insane automatism or should it be classified as "disease of the mind" (ie. mental disorder automatism) and warrant a verdict of "not guilty for reason of insanity" or non-insane automatism. This distinction is a matter of law and decided by the judge REASONING: Sleepwalking is not a disease of mind (DOM), but instead its non-insane automatism because it likely wont reoccur , floodgates doesnt matter. Relevant policy issue: recurring danger On the evidence there is no likelihood of recurrent violent somnambulism. Moreover, no floodgates: Parks had supported his testimony with medical evidence and expert testimony. Non-insane automatism- acquittal- but sleepwalking in a different case on different evidence might be found to be a disease of the mind. Nature/Qualify: R v Cooper (Mere KNOWLEDGE of nature and qualify of an act does not equal APPRECIATION - estimation and understanding of the nature and consequences of that act) Was the accused person AT THE TIME of the offence by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the NATURAL CONSEQUENCES that would flow from it? The legally relevant time is the time when the act was committed To know the nature and quality of an act may mean merely to be aware of the physical act, Appellant - using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. But to appreciate may involve estimation and understanding of the consequences of that act. It is entirely different to suggest, however, that in performing the physical act of choking, appellant was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death. In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death. R v Kjeldson (Psychopathy or sociopathy doesnt leave you incapable of appreciating nature and quality of act) FACTS: The accused was out on parole for a previous murder. In violation of his parole, he took a plane from BC to Saskatchewan. He took a cab into Regina. The driver was a woman. Later he called the cab company again and asked for the same driver. On this second call, he asked the driver to stop the car after which he raped her and killed her with a rock. Kjeldsen claimed to be psychotic and incapable of emotionally appreciating the significance of his act. There was 20

overwhelming evidence that the accused was a psychopath ISSUE: Can psychopathy be exempted by s 16, within the words incapable of appreciating the nature and quality of an act or omission? REASONING Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people McIntyre J.I do not think the exemption provided by [s. 16(1)] extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from disease of the mind. Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people. No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct. HELD: Psychopathy cannot be exempted Knowing Act was Wrong: R. v. Oommen (Defines phrase knowing the act was wrong) FACTS: Oommen suffered from a mental disorder describes as a psychosis of a paranoid delusion type, and shot a women whom he thought was conspiring against him. Circumstances, such as the presence of a knife, and the going off of buzzers, helped to establish an air of reality to Oommens testimony of suspecting a conspiracy. Trial judge did not grant a defence of mental disorder because the accused knew that the society would think that his act was wrong. ISSUE: Whether this delusion exempted Mr. Oommen from criminal responsibility under s. 16(1) of the Criminal Code on the ground that he lacked the capacity at the relevant time to know the difference between right and wrong REASONING: What is meant by the phrase "knowing that [the act] was wrong" in s. 16(1)? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society? Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do? The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not o Test: Did the accused lack the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not? (810) The accused in the case at bar accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to

perceive that his act of killing was wrong in the particular circumstances of the case. HELD: New trial ordered [2] AUTOMATISM

- Non-insane automatism is considered a full defence (unqualified acquittal), but it is really actus reus (and defence must rebut presumption that D intend consequences of acts) vs. insane automatism=medical disorder (Parks) - law presumes people to act voluntarily, so the accused bears both the persuasive and evidential burden in establishing this defence (R v Fontaine; R v Stone) but just air of reality requirement
R v Stone (Leading case on the automatism defence- no mental disorder, bad trigger) FACTS: S and wife had conflicts in relationship. One day in car, Ss wife was telling him off, saying hes a lousy fuck with a small dick, and S claimed that her voice began to fade away and a whooshing sensation came over him. The next thing he remembers is looking down at her body slumped over the seat and a knife in his hand. He had stabbed her 47 times. He hid her body in his truck's tool chest, left a note for his daughter, and took off to Mexico..Defence psychiatrist testified that the appellants account of the facts in this case was consistent with a dissociative episode caused by a series of psychological blows. Crown psychiatrist testified that, although it is possible, it is extremely unlikely that the appellant was in a dissociative state when he killed his wife. Dr. Murphys scepticism was based upon several factors. First, she pointed out that the appellants reported decrease in concentration, difficulty following driving directions and memory loss were common phenomenon which, though consistent with dissociation, could easily be attributed to a number of other factors. Dr. Murphy also pointed out that the frenzied, overkill nature of the attack was equally consistent with rage as with dissociation. He was found guilty of manslaughter instead of murder. He appealed that he should have been acquitted. HELD: The trial judge had found that only the non-insane automatism defence applied; however, the triggering effect for Stone was not something that would reasonably be expected from a normal person. Consequently, his defence should fail (note, however, that the SCC did not doubt that a more severe psychological blow could induce a normal person into an automatistic state). SCC held- this defence was not available because a normal person would not have shift into a state of automatism as the result of the wifes taunts. R v Fontaine (SC, Qualifies the Stone test in some ways) FACTS: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, Were coming to get you, pigs. The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after 21

smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. Several psychiatrists gave evidence. The judge refused to put this defence to the jury on the ground that the required evidential foundation had not been laid. The accused was convicted of first degree murder. Held: Unconstitutional- gets rights to put on defense. REASONING: Eviential burden question of law, for ct. Perusuasive burden question of fact, for jury. In the case of reverse onus defences, such as automatism, it is the accused who bears the persuasive and the evidential burdens. Reverse onus defences will therefore go to the jury (be in play) where there is any evidence (probative opinion of a qualified expert) upon which a properly instructed jury could reasonably decide the issue (air of reality)

** Final Non-insane/insane Automatism Defence Framework **

(as per Parks; Stone; Fontaine) STEP (1): Is there a proper foundation for a finding of automatism? The law presumes people to act voluntarily, so [the accused] must rebut presumption of voluntariness (Parks; Stone) To do so, [the accused] must show that there is an air of reality to the defence, namely that there is some evidence with which a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused (Fontaine) Note that the evidence must be supported from psychiatric expert evidence (Stone) STEP (2): If Step # 1 satisfied, the trial judge determines whether the condition alleged is mental disorder or non-mental disorder automatism (i.e. which defence should be left with the jury): Judge to start from proposition that condition is disease of mind, and asks whether evidence takes it out of category (Stone) Judge should consider the following: (a) Internal cause factors: If the condition stems from an internal cause - condition is a DOM (Note: if not internal cause, still may be DOM) Nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake - trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done Psychological blow automatism - evidence of an extremely

shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done. (b) Continuing danger factors: Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind (Parks) Consider expert evidence Consider medical history/psychiatric history Consider likelihood of triggers occurring (c) May consider other policy factors where first two inconclusive Policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code. Policy considerations include: Reputation of administration of justice Ease of feigning (faking) Floodgates potentiality Ensuring public safety STEP (3): Available defences for trier of fact to consider (a) Non-insane automatism? If not disorder, and Trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily Q is whether the defence has proven that the accused acted involuntarily. Here, jury may be instructed to consider things such as (Stone factors): o Whether there is a motive for crime ie, A motiveless act will generally lend plausibility to an accuseds claim of involuntariness o Severity of triggering stimulus o Corroborating medical history o Whether the trigger is the victim
o Corroborating evidence of a bystander - which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act Whether there is a motive for crime ie, A motiveless act will generally lend plausibility to an accuseds claim of involuntariness

or detained in a hospital. [3] INTOXICATION

- Applies to both drugs and alcohol - General intent the only intent involved relates solely to the performance of the act in question A person is presumed to have intended the natural and probable consequences of his actions. Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. (Daviault) The mens rea in most cases can be inferred from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. Secondly, where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may establish the necessary blameworthy mental state of the accused by proving voluntary self-induced intoxication. (SC, R v Bernard) In cases where accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, Crown may meet this evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the fact of voluntary self-induced intoxication by drugs or alcohol. The reckless behaviour in attaining the level of intoxication affords necessary evidence of a culpable mental condition. (Bernard) Policy grounds = cant intoxicate yourself; commit a crime, and then use your intoxication as a defence here - Specific intent involves the performance of the actus reus, coupled w/ an intent or purpose going beyond the mere performance of the questioned act (e.g. assault with the intent to maim or wound). Where, a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged it may apply. General Intention Offences Intention Offences 1. assault (s. 266) Specific

1. assault w/ intent to resist arrest (s. 270(b)) 2. arson w/ intent to defraud (s 435) 3. break enter w/ intent

2. arson causing bodily harm (s. 433) (Bernard) 3. break enter and commit 22

(b) Insane automatism? If the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case-Under s. 672.54, an accused who receives this qualified acquittal may be discharged absolutely, discharged conditionally

(s 348(1)(a)) 4. sexual assault (rape) (s 271) 5. manslaughter

to commit (s 348(1)(b)) 4. touching for a sexual purpose (s 151) 5. murder 6. theft 7. attempted assault, break and enter, sexual assault, etc

this defence would only be available in rare cases, essentially where the accused was an automaton To use defence of extreme intoxication, you need: o 1. Expert evidence (that the accused was in a state of automatism or insanity) o 2. Accused must prove, with that expert evidence alongside any other evidence that, on a Balance of probabilities, he was in an extreme state of intoxication

***Note: this categorization assumes

BUT see s. 33.1 of CC (enacted in response to Daviault): Extreme intoxication is NOT a defence to any offence which involves assault as an element or involves interfering, or threatening to interfere, with a persons bodily integrity, whether or not that person, by reason of the intoxication, lacked the general intent or voluntariness required for the offence So, the defence of EI after Daviault is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats of violence)

(a) General intent offences R v Bernard (Sexual assault causing bodily harm is a general intent offence, and therefore simple intoxication doesnt work as a defence) FACTS: B committed the sexual assault upon the eighteen-year-old complainant in his apartment. It was conceded that intercourse had taken place without the consent of the complainant. During the course of the assault, the appellant punched her, caused an injury to her eye, and threatened to kill her. B charged w/ sexual assault causing bodily harm (s 246.2(c) ISSUE: The intoxication defence; distinguishing between general and specific intent crimes REASONING: General intent offence (i.e. the mental element is the intent to commit the assault) here. Rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent, and are, indeed, criminally blameworthy. Re charter violation, Only intrudes upon security of the person in accordance with sound principles and w/in established boundaries of legal process. R v Daviault (Extreme Intoxication) FACTS: D sexually assaults crippled old lady ISSUE: 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 as defined in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, constitute a basis for defending a crime which requires not a specific but only a general intent? REASONING: Mental element of general intent offences minimal- simply an intention to commit the sexual assault or recklessness as to whether the acions would constitute an an assault. Where intoxication is so extreme an essential element of the offence, voluntariness, is not present. Cant hold someone morally at fault w/ absence of voluntariness-- a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Court noted that 23

(b) Specific intent offences- Simple intoxication defence operates only if proof of intoxication helps leave the judge or jury in reasonable doubt over whether the accused form the relevant mens rea (so it actually isnt really a defence -- only applies if intoxication prevents the formation of the specific intent. - Even if you are found not guilty of a specific intent offence on the account of intoxication, you can still be convicted of an included general intent offence (e.g. murder => manslaughter, e.g. assault with intent => assault) R v Robinson (Two step process when dealing with offences of specific intent) FACTS: The accused killed a man wit a stone but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After being instructed on provocation, self-defence and intoxication, the jury found the accused guilty of second-degree murder. Specific intent (i.e. intent to killforesight of death). Revsersed. REASONING: Trier of fact only need to find that the accused did not have the mens rea (i.e. intent in fact) for the offence and if not found, do not need to inquire about capacity to have intent. (The rule in MacAskill should be overruled). The inquiry is in the actually state of mind and not the capacity to have a state of mind. SCC Held- If a drunkenness raised a reasonable doubt as to whether the accused in fact possessed the requisite specific intent, the accused was entitled to be acquitted even if there was no doubt that the accused possessed the capacity to form a requisite intent. (1) TJ must be satisfied that the effect of the intoxication was such

that its effect might have impaired the accuseds foresight of consequences sufficiently to raise a reasonably doubt (2) TJ then instructs jury that the issue before them is whether the Crown has satisfied them BRD that the accused had the requisite intent (e.g. In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death) [4] SELF DEFENCE

to killing or causing GBH in order to preserve himself Note: if any of these elements lack an air of reality or backing by evidence, the defence should not be put to the jury(Cinous) - Note: (a) Each of the above element (3 elements) has a subjective and objective component: first, inquire about subjective beliefs of the accused; second, ask whether those perceptions are objectively reasonable (Cinous) (b) Unlike s 34(1) which speaks to the issue of intent, s 34(2) does not. The plain wording of s. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault. By necessary implication, Parliament's silence may be taken to mean that s. 34(2) is meant to apply to accused persons who intend to kill or cause grievous bodily harm, as well as to those who do not have such intent, but who do in fact cause death or grievous bodily harm (Pintar) ( c) Imminency not necessary, but factor to consider (Cinous.) S 35: (provoked) Applies either where accused provoked an assault him by another (buts become less important since 34(2) incorporates provoked assaults. Accused justified only if force used: (a) Under the reasonable apprehension of death or GBH from the person who he has assaulted/provoked (b) In the belief, on reasonably grounds, that its necessary to preserve himself from death or GBH (c) He declined further conflict and quitted or retreated from it as far as it was feasible to do before the necessity of preserving himself from death or GBH s 37: This is used only where other provisions dont apply R v Pintar (Explains the relationship between ss 34(1) and (2) and the general approach to using the various defences) FACTS: P started seeing Rs (victims) wife. R made known he wanted to kill P. R enters Ps home, takes swing at P, and P ducks punch and knocked R to floor. After more threats to Ps life, P shot and killed R. Convicted manslaughter. ISSUE: Relationship between s 34(1) and (2), and the general approach that should be taken using the various defences REASONING: - The TJ erred in failing to leave the single transaction option to the jury i.e. that the initial unprovoked assault by R still had significance at the events which occurred outside the home. The error takes on special significance in respect of s. 34(2) since that provision formed the essence of the appellant's claim to self-defence 24

- There are 4 separate but potentially overlapping statutory defence: s 34(1), 34(2), 35 and 37. - Note that the concept of provocation for the purpose of self defence is defined in s 36. ** Summary of the Self Defence Provisions ** S 34(1): Unprovoked Applies where there is an unlawful assault against the accused is unprovoked [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section] Accused may repel force by using force if the force used: (a) Is not intended to cause death or GBH; (b) Is no more than necessary to defend themself Note: (a) This section may not be used where accused intended to cause death or GBH (R v Brisson) (b) An unlawful assault against accused need not actually occur; it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (c) The accused need not have any apprehension of death or GBH S 34(2): Grave bodily harm (provoked or unprovoked) Applies where there is an unlawful assault, whether provoked or unprovoked, and accused, to repel the assault, intends to cause death or GBH to another [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section] Accused is justified in causing death or GBH (Cinous): (a) in response to the assault only if (did the accused reasonably and actually believe that s/he was being unlawfully assaulted or about to be attacked?) (b) He causes death or GBH under a reasonable apprehension of his own death or GBH from the violence with which the original assault was made; and (c) He believes, on reasonable, grounds, that there are no alternatives

- In order for the appellant to succeed on s. 34(2), it was necessary that the jury believe or have a reasonable doubt that at the time of the shootings, the appellant genuinely believed on reasonable grounds, that he was in grave danger from the violence with which Ross and Gill pursued their attack upon him, and that his use of deadly force in response to that attack was necessary. Background information about the attackers propensity for violence is relevant here. New trial ordered. R v Cinous (Shows how the defence in s 34(2) has subjective and objective elements) FACTS: C heard that M and Y wanted to kill him. M and Y, one day, asked C to assist in a computer theft. When they met up, M and Y were acting suspicious; M was wearing latex gloves, and they kept touching their jackets like they had a gun it. While driving, C pulled over to gas station, pulled out gun and shot M in back of head. C testified that this was an instinctive reaction to a situation of danger. ISSUE: Interpretation of self defence under s 34(2) REASONING: Elements of the defence Each of the three elements have both a subjective and objective component. These three elements must be real as perceived by the accused (subjective) and be reasonable (objective). Application Unlawful assault? It would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. There is an air of reality to the subjective component of the defence as there is direct evidence on the accuseds beliefs, in the form of the accuseds testimony. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked. Reasonable apprehension of death or GBH? Yes. The accuseds testimony is unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger Reasonable belief of no reasonable alternatives to killing? It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. There is an air of reality to the accuseds claim that, at the time he shot the victim, he actually believed that he had no alternative. The accuseds extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a mere assertion of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. Here, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. Conviction upheld. 25

[5]

NECESSITY

R v Latimer The defence of necessity is narrow and of limited application to criminal law. D killed 12-year old daughter who had severe cerebral palsy. The accused must establish the existence of 3 elements: (1) Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near it isnt enough that peril is foreseeable or likely, it has to be on the verge of transpiring (e.g., here, the accused did not himself face any peril, and Ts ongoing pain did not constitute an emergency in this case. Ts proposed surgery did not pose an imminent threat to her life, nor did her medical condition. It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril, particularly when better pain management was available) (2) No reasonable legal alternative to the course of action: Ask, given that the accused had to act, could he nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? (e.g., here, the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on, with what was unquestionably a difficult situation, by helping T to live and by minimizing her pain as much as possible or by permitting an institution to do so) (3) Proportionality between the harm inflicted and the harm avoided (e.g., here, leaving open the question of whether the proportionality requirement could be met in a homicide situation, the harm inflicted in this case was immeasurably more serious than the pain resulting from Ts operation which the accused sought to avoid. Killing a person in order to relieve the suffering produced by a medically manageable physical or mental condition is not a proportionate response to the harm represented by the non-life threatening suffering resulting from that condition) What standard to employ? For the first 2 of the 3 elements, a modified objective test is employed (i.e. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person, including his ability to perceive the existence of alternative courses of action). The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise HELD: The trial judge was correct to remove the defence from the jury since there was no air of reality to any of the three requirements for necessity [6] Can be DURESS invoked: to negate prima facie intent of mens rea, under S 17 CC for principals under c/l for parties

S17- limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. C/l- frees duress from the constraints of immediacy and presence. The elements include: (1) A threat to the integrity of the person: The law includes a requirement of proportionality between the threat and the criminal act to be executed. The accused should be expcted to demonstrate some fortitude to put up a normal resistance to the threat (2) The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. Although the threat need not be immediate, there must be a close temporal connection between the threat and the harm threatened (i.e. the threat had to be a real threat affecting the accused at the time of the offence) (no immediacy requirement) (3) Threats need not be made by a person who is at the scene of the crime (no presence requirement) A modified objective test is employed R v Hibbert S. 17 FACTS: H accompanied M at the time M shot F. H was punched in the face by M as a way of forcing H to help him find F. H helped get M down from his apartment where he was subsequently shot REASONING: The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence. A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse based defence (either the statutory defence set out in s. 17 of the Criminal Code or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea. The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. Rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. The question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account. Convicted of aggrated assault, but set aside ofr new trial. R v Ruzic c/l duress 26

FACTS: The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code. The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for a person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms, raised the common law defence of duress and was acquitted. The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal. ISSUE: Scope and constititutionality of the defence of duress REASONING: Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The plain meaning of s. 17 is quite restrictive in scope. The phrase present when the offence is committed, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The underinclusiveness of s. 17 infringes s. 7 of the Charter. The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1. In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements seemingly do not minimally impair the accuseds s. 7 rights. [7] PROVOCATION

Solely for murder

232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the

sudden and before there was time for his passion to cool. R. v. Tran (2010)- D killed estranged wife and boyfriend in bed in his former marital house after surrendering house to her. Ct: Once it is established that the wrongful act or [page351] insult was sufficient to deprive an ordinary person of the power of selfcontrol, the inquiry turns to a consideration of the subjective element of the defence, which is whether the accused acted in response to the provocation and on the sudden before there was time for his or her passion to cool. Personal circumstances may be relevant to determining whether the accused was in fact provoked -- the subjective element of the defence -- but they do not shift the ordinary person standard to suit the individual accused. Conduct here doesnt amt to insult within s.232, and nothing sudden about it (D suspected wifes relationship.)

- Information sworn out by anyone who has reasonable grounds to believe offense has been committed move from suspect to accused. Officer must personally know enough to reasonably believe that offence has been committed Private prosecutor can exist by swearing information before judicial authority. If the accused is ordered to stand trial after prelim inquiry, private prosecutor may no prefer an indictment against that person w/o written authroization of a judge in court of trial. Some offences require that AG personally consent to prosecution (eliminates private prosecutors)- usu involved provincial AG. Public prosecutions begin when information laid by a public officer can laid by prosecutors after they have reviewed reports form police or other authorities Charging document- With the exception of direct indictments, indictable offences are charged when an information is sworn, received, and approved by a judicial officer in accordance with sections 504 and following of the CC [This procedure applies equally to offences prosecuted by summary proceedings under Part XXVII CC; see s 795]. s 504 (non-discretionary, ministerial function): Justice must receive the information where: any person who has reasonable grounds to believe an offence has been committed; under oath, lays an information in writing; AND the information alleges a number of required things s 506: An information may be laid in the manner set out in Form 2 s 507 (substance of information considered): Once the information has been received (under s 504), the justice who received the information must consider the substance of the informations allegations. Essentially, judge, to endorse it, must conclude that there are REASONABLE GROUNDS, as disclosed in the information and any evidence adduced thereof, that the offence was committed- does not require b/r/d/ proof or that justice make any udgment concerning the sufficiency of case for prosecution. - If judge signs information, that marks the moment at which charge is formally laid and prosecution begins generally ex parte, judge may ask questions but doesnt have to follow evidentiary rules of prelim inquiry justice of peace decides whether to issue summons or warrant, then accused makes iniial appearance in court to respond to charge The charge document: whether the trial proceeds by information (for provincial courts/summary proceeding) or an indictment (for superior courts), it is the starting point for the trial and sets out the case e the accused has to meet. Can then proceed by summons or warrant. - Usual procedure for indictable offense is to begin with a prelim inquiry on information before provincial ct judge, and then if accused is committed for trial, prosecutor will file (prefer) an indictment in superior ct 27

CRIMINAL PROCEDURE
THE CHARGE
[1] SUMMARY VS. INDICTABLE OFFENSES - Two general categories: Indictable and summary offences. Offences can be hybrid (i.e. prosecutor has right to elect whether to treat as indictable or summary theft, mischief depending on severity) (this is not a 3rd category of offence, though) - Summary offenses have 6 mo. SoL to bring charge, max 6 mo. Imprisonment or fine of $2000 - The classification of offences has important implications for the penalties that are possible, and for the procedure that will be used- different procedures, different police powers, diff. search & seizure powers - Election- accused has election between superior ct jury, superior ct judge or provincial court judge but more serious offenses require jury and some offenses require prov. ct judge [1A] LAYING THE CHARGE

- Jurix- - No person may be considered an accused in the absence of a charge and, therefore, no court can have jurisdiction over the prosecution of a person in the absence of a charge Prosecution may be conducted in any province or territory in which an element of the offense occurred. R. v. Bigelow- accused was charged with detaining a child w/intent to deprive mom of custody, took kid in Ontario, flew to Alberta, Ct found jurix b/c overt act of boarding plane was part of pre-planned scheme and mom was deprived of custody rights in Ontario.

Prelim Inquiry Until 2004, chiefly was test of sufficienty of prosecutions case for trial (screening mechanism for unmeritorious prosecutions)o s 548 directs the justice or judge at the preliminary inquiry to commit the accused for trial on any indictable offence if the evidence in support of the charge is sufficient. It also requires the accused to be discharged (but this doesnt mean acquitted) if the evidence is insufficient. o But with direct indictments, less necessary and disclosure functions now more directly dealt with by Charter decisions requiring crown to disclose all relevant evidence. Now prelim only avail upon request of party (usu defence) Direct can allow prosecutor to prefer an indictment when accused doesnt have chance to request PI When request made, will only be made with regard to issues and witnesses specified in advance by both parties : s 536.3 o The preliminary inquiry is now a limited examination of the sufficiency of the prosecution case with regard to the specific issues and the evidence of specific witnesses o Prosecution must lead evidence corresponding to each of the elements o Question to be asked by a preliminary inquiry judge (or under directed verdict) is whether there is any evidence upon which a reasonable trier of fact, properly instructed, could find the charge proved BRD (Arcuri, 2001) (no weighing usually) o Where Crown offers direct evidence on every element of offense, accused must be committed to trial- truth of evidence i left to factfinder. For circumstantial evidence, the judge is required to determine what reasonable inferences can be made from evidence- whether the evidence, IF BELIEVED, could reasonably support an inference of guilt. (Arcuri) Judge must consider whole of the evidence if the Crown relies on circumstantial evidence, judge must engage in limited weighing of the whole of the evidence, including defence evidence. Acuri all circumstantial- but PI judges weighing was sufficient to commit to trial. Call some witnesses under oath (not all) o The Code expressly allows the accused to call evidence and this can include exculpatory evidence on a matter of defence: s 541. o Witnesses can be cross-examined. Usually wont b/c dont want to give Crown piece of Defence. Committal o If meet standard then indictment drawn up and case proceeds. If doesnt pass this stage AG can prefer an indictment AG can bypass this preliminary inquire used in Bernardo o Indictment can include any charge on which person was ordered to 28

stand tria or any charge foundec on facts disclosed on preliminary indictment

[2]

SIGNIFICANCE OF THE INDICTMENT

- When accused not tried by provincial ct, indictment is prepared (usu following prelim inquiry) and can include any charge on which the person was ordered to stand trial or any charges based on facts disclosed at prelim inquiry - Direct indictment permit prosecutor to prefer an indictment when accused has not been given the oppty to request a prelim inquiry, the prelim inquiry - The accused is in jeopardy of conviction only for the offence charged, and for any offences that are included in the criminal charge, but nothing more: R v G.R. FACTS: GR acquitted of the charge of incest. At Ct of appeal- crown argued that D should be convicted of sexual assault. ISSUE: Whether the rules governing included offences under s 662 of the Criminal Code can be applied to justify the result in this case of the respondent being found guilty of sexual assault/sexual interference, but being acquitted of the charge of incest REASONING: It is fundamental to a fair trail that an accused knows the charge or charges he or she must meet the proper focus is on what the Crown alleges, not on what the accused already knows The Crown seeks to have the respondent convicted of charges which require the prosecution to establish elements which were not part of the allegations against him at trial The Crown did not allege that the daughter was below the age of consent on the indictment, and there is nothing in the nature of the offence of incest as described in the CC to put the respondent on notice that he was in jeopardy of a conviction for sexual assault or sexual interference An accused is entitled to know which amongst those charges available he or she is required to answer An offence is included if its elements are embraced in the offence charged, or if it is expressly stated to be an included offence in the CC itself. But the offence of incest can be committed without committing sexual assault or sexual interference not concerned with age or consent. Ct holds that notice of transaction not enough, you need to also specify the charge. HELD: Crown cannot add these charges [3] THE VALIDITY OF THE CHARGE

Joinder and Severance

-Each count covers single transaction but this broad interpretation - Can have a joinder and severance of counts/parties 591(3) - Society interest in avoiding multiple proceedings- general rule is that accussed who committed crime together shd be tried together. Even if two accused testifying against each other, general principle is that they shd be tried together (possibility of inconsistent verdicts militates against severance). But accused can also ask for separate trial if e.g. wants to testify on some countrs but not others. Content of Charges - Must be sufficiently detailed: s 581(3). - The purpose is of each count in an indictment is to put the accused on notice of the case to meet - There are two interrelated rules: s 581(3) (insufficient detail) and the surplusage rule (excessive detail- fact need not be proven, despite being alleged, will depeend on whether defense will be prejudiced). R v. NC accused charged w/trafficiing in cocaine, but only baby powder. Crown obliged to prove cocaine b/c it was in charge, even though baby powder wd have been offense in its own right. Venzina- accused charged w/defrauding Bank of Montreal- but different victim. Ct held that information valid b/c it didnt have to specify a victim so Crown didnt need to prove victim mere surplussage. Remedies for a Defective Charge - 3 possibilities: (1) So flawed that the charge is an absolute nullity: The TJ has no jurisdiction to hear the matter, and the charge must be quashed. But the Crown can lay a new charge (2) Charge might be flawed, but not so flawed that it is a nullity: TJ is to AMEND the charge. Grant an adjournment in order to remedy the prejudice [Note: a charge will only be quashed if the prejudice caused by the amending cannot be remedied by an adjournment] (3) The remedies set out in s 601 - Accused may also seek particulars

beyond any doubt nor is it an imaginary or frivolous doubt. More is required than proof that the accused is probably guilty. It must not be based upon sympathy or prejudice. Rather, it is based on common sense; it is logically derived from the evidence or absence of evidence. A jury charge that includes these considerations will be a valid one. There is no magic incantation - Burden to rebut a presumption: There are numerous rules of evidence called presumptions that operate to assign burdens of proof on the accused. A presumption directs judges/jury to assume that a fact is true (known as the presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact), unless the accused can rebut the presumed fact according to the assigned standard of proof. Mandatory presumptions can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact follows from the basic fact. A presumption can be recognized as a mandatory presumption because the legal rule raising the presumption will use the term evidence to the contrary to describe the burden of rebuttal. A presumption will be interpreted as a mandatory presumption where it fails to set out the required standard of rebuttal. Other presumptions operate as reverse onus provisions, deeming the presumed fact to exist where the Crown proves the basic fact, unless the accused disproves the presumed fact on a balance of probabilities. (b) The neutral impartial trier R v Gunning: [Judge cant makes fact findings]. It is a basic principle of law that, on a trial by judge and jury, it is for the judge to direct the jury on the law and to assist the jury in their consideration of the facts, but it is for the jury, and the jury alone, to decide whether, on the facts, the offence has been proven. It is of fundamental importance to keep these functions separate. The trial judge also erred by failing to instruct the jury on the provisions of s. 41 of the Criminal Code, R.S.C. 1985, c. C-46, in respect of the defence of house or property Facts: D shot victim, a person unknown to the accused who had entered his home uninvited during a party, said that gun accidentally discharged, didnt remember details b/c drunk. Convicted 2nd degree murder. Held: Conviction should be set aside and a new trial ordered. Cd have been acquitted entirely if no finding of careless use of firearm. The trial judge erred in instructing the jury that the Crown had proven the "unlawful act" necessary to prove murder or manslaughter (i.e. careless use of firearm) and his recharge did not cure the error. R v Hamilton [Judges cant make findings w/o evidence]: FACTS: H and M were charged with importing cocaine. Both were black single mothers. M was not a Canadian citizen and faced risk of deportation. At the sentencing hearings conducted by Justice Hill, extensive social context evidence concerning poverty, gender bias and systemic racism was filed, and the judge provided 700 pages of materials. Based on this evidence, the judge concluded that the women should not receive imprisonment, but should receive conditional sentences. The Ontario CoA commented on the inappropriateness of the judges decision. 29

THE ADVERSARIAL PROCEEDING

[1] THE ADVERSARIAL PROCESS

(a) The presumption of innocence and the ultimate standard of proof - An accused is presumed to be innocent: s 11(d) Charter. The Crown must prove guilt BRD: R v Lifchus: BRD does not involve proof to an absolute certainty; it is not proof

REASONING: - Judge made several findings of fact which were not supported by evidence (e.g., the respondents were paid minimal amounts and used those amounts to provide the bare necessities for their children) - The respondents didnt offer an explanation/description of their involvement in the crimes apart from Hs indication that she acted out of financial need. The judge had no indication of who may have hired them, what compensation they received or what would happen to their children if they went to jail. - **Judge did not purport to base his findings of fact on any material that actually related to these respondents. Instead, he relied on his experiences in sentencing other individuals who couriered cocaine from Jamaica, and applied those generalizations to the respondents. While a judge is permitted to use common sense and wisdom gained from personal experience in judging the trustworthiness of a particular witness, the judge must avoid judging the credibility on the basis of generalizations or upon matters that were not in evidence, Cory J said in R v S (R.D.). - **R v S (R.D.) draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context, and the findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper, the former is not. Cops in Nova Scotia. (c) The role of the prosecutor The prosecutor is an advocate but also a quasi judicial officer, and so must make decisions in best interests of justice and larger public interest, including accused R v Cook: The Crown cannot adopt a purely adversarial role towards the defence, given its special function in ensuring that justice is served, but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability. Part of this discretion involves the choice of which witnesses to call. Given the strong preference this Court has shown for deferring to the Crowns discretionary authority, it would take a strong opposing rationale to warrant the creation of a duty which so clearly impedes it. The accused is not ambushed by the fact that a given witness is not called; any existing unfairness can be resolved through the disclosure process and the accuseds ability to call the witness. The trial judge did not err in failing to inquire into why the Crown chose not to call the victim (who had been announced). The onus to prove the Crowns misconduct lies upon the accused why didnt cook call witness?. Similarly, a finding of an abuse of process or oblique motive is only available where the accused can establish such conduct on a balance of probabilities Krieger v Law Society of Alberta: Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Because Crown prosecutors must be members of the Law Society, they are subject to the Law Societys code of professional conduct, and all conduct that is not protected by the doctrine of prosecutorial 30

discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General had reviewed it from the perspective of an employer. A clear distinction exists between prosecutorial discretion and professional conduct, and only the latter can be regulated by the Law Society. Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to this duty constitute a very serious breach of legal ethics. Here, it appears that K failed to disclose relevant information, a violation of his duty, but later offered an explanation which would help to determine if he had acted dishonestly or in bad faith. If so, this would be an ethical breach falling within the Law Societys jurisdiction. The Law Societys jurisdiction to review Ks failure to disclose relevant evidence to the accused is limited to examining whether it was an ethical violation. (e) The role of the defence R v Murray - Bernardo case- ethics. Otherwise, the defence counsel is obliged to act solely in the interests of the accused.

THE CRIMINAL INVESTIGATION

[1] POLICE POWERS

- Theme throughout: balancing liberty with public security - s. 8 (unreasonable search or seizure) and s. 9 (arbitrary detention). General police powers - Police have broad powers under statute (mainly Criminal Code), and common law. - Statutory powers include powers allowing police to: arrest an accused; compel an accuseds appearance in court via a summons or appearance notice; use force; search suspects; etc. Also investigative techniques like provincial statutes for random stops of vehicles and Customs Act for searches of people crossing border to Canada. - Common law powers: (1) Historical c/l powers: a. Search incident to arrest for the purposes of ensuring safety; protection of evidence from destruction, and discovery of evidence (R v Caslake). Then, see R v Golden for strip searches incident to arrest, and the particular requirements that must be met (p 16) b. To enter into a private dwelling in a hot pursuit (allowed leading case is R v Feeney) (2) New c/l powers can be created the ancillary powers doctrine (see R v Waterfield) (p 17): The SCC has relied on this doctrine to support police power in a number of areas. There are problems with relying on this test, though, as it was not intended to allow the creation of new CL powers.

(3) Consent (a final area from which police develop their powers) (4) Default common law powers: Police have the power to do anything that will not result in some remedy being granted to an accused Powers of search and seizure - Balance individual interests (i.e. liberty) with interests of the state - What is a search? A state investigative technique is or is not a search depending on whether it infringes on a persons reasonable expectation of privacy. - Analyze searches with warrant and without warrant separately (1) Searches with a warrant (a) Searching places with warrant - General search warrant provision is found in s 487 - Must be issued by a justice; justice must be satisfied on reasonable grounds that evidence will be found (which must fall into 4 categories: (i) anything on or in respect of which an offence has been committed; (ii) anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence; (iii) anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant or (iv) offence related property); the search must be related to a building, receptacle or place; there must be someone responsible for carrying out the search; - Note that there are some limits to this search warrant power (e.g specificity) (see p 69) - A related provision found in s 489 allows police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by, or were used in, or afford evidence concerning an offence (b) Searching people (DNA warrants): - Warrants for taking blood, saliva etc - Only available for designated offences listed in s 487.04 (see p 945 of Code) - See s 487.05 for the requirements to get the warrant - Basic requirements = a provincial court judge (i.e. cannot be a JP) must be satisfied by information on oath that a bodily substance connected with an offence has been found, that a person was a party to the offence, and the DNA analysis of the substance will provide evidence about whether the bodily substance was from that person; judge is required to believe that the issuing of the warrant will be in the bests interests of the administration of justice; etc (see p 72) - Different rules apply when the DNA warrant concerns young people (see p 73) (c) Reviewing a warrant: - The Code contains no provisions to review a warrant. But it is possible to challenge the issuance of a warrant by way of Certiorari (used to review the process by which the warrant is used) - The central issue in reviewing a warrant is whether the requirements for its issuance under the Code have been met - The question for the reviewing judge is whether there is evidence upon which the 31

issuing judge could have decided to issue the warrant (R v Garofoli). The actual result of the search is not relevant on review (2) Searches without a warrant - Every warrantless searche is prima facie unreasonable under s 8 of the Charter (i.e. guarantee against unreasonable search and seizure) (Hunter v Southam). - As a result, every warrantless search must be made consistent with minimum Charter standards. - The following is the approach to determine the constitutional validity of the warrantless search: (1) Threshold issue: First, to be a breach of s 8, the individual searched must be determined to have a reasonable expectation of privacy over their person, territory and information (i.e. if there is no reasonable expectation of privacy, there is no search/seizure at all, and therefore no breach of s 8). (a) Look at entitlement to privacy not whether X had, in that case, privacy i..e the standards of privacy that a person can EXPECT to enjoy in a free and democratic society (Wong) (b) Look at factors in Edwards (looking at totality of circumstances) (p 87)- presence at the time of search, possession or control of property searched, ownership of property, historical use of rpopety, ability to regulate access. Edwards had no reasonable expectation of privacy to apt rented by his girlfriend he was just privileged guest. (Belvanis passenger in vehicle has no reasonable expectation of privacy.) (c) Note the three kinds of interests that privacy protects (Tessling) -Personal privacy (e.g. strip search) highest protection -Territorial privacy more in home, less in vehicle, less in prison -Informational privacy = more difficult to prove, s.8 protects a biographical core of personal information - information which tends to reveal intimate details of the lifestyle and personal choice of the individual. Not limited to intimate details, but not everything an individual wants to keep confidential is protected by s.8. Tessling involved heat being emitted from home- taken as informational privacy, not territorial, so fly-over detecting pot plants didnt violate. (2) If reasonable expectation of privacy, prima facie violation of s 8 right. The issue then becomes whether the search itself is reasonable, or was it an intrusion, in light of that expectation of privacy - determined by the Collins factors: (a) Is the warrantless search authorized by law: (i) Statute? (e.g. warrantless searches are authorized by s

487.11 (in relation to the s 487 search warrant power) (ii) C/L? (i.e. search incident to arrest; search during investigative detention; exigent circumstances. Ssearch incident to arrest -- arrest was lawful; the search was truly incidental to that arrest (police officers motives cant be part of department policy to search, must be subjective officer determination to conduct search e.g. to ensuring safety; protection of evidence from destruction, and discovery of evidence (R v Caslake), and that the search was conducted in a reasonable manner. Doesnt need to have reasonable grounds for search, can extend to surrounding area (Cloutier) (iii) Consent? (e.g. no right to require someone in lineup, but people consent or evidence introduced re: failure to participate) (b) Is the law itself reasonable? (c) Is the manner in which the search is carried out reasonable? Here, the nature of the accuseds reasonable expectation of privacy is also a background factor in determining how reasonable the search is (the higher the level of privacy expected, the more difficult it will be to determine that the search was reasonable, e.g. a person has greater privacy when the search involves a bodily cavity as opposed to the trunk of their car; or in the situation of a search incident to arrest heavy state interests). - NOTE: There are variations on the Hunter v Southam standard. Searches under an administrative scheme and searches of press offices have different rules (see p 111) - NOTE Other investigative powers, ie., general warrants (s 487.01) (which have broader warrant power than s 487) (3) Powers of Detention at the Investigative Stage (a) Definition of detention - S 10(b) gives rights to people who are detained, e.g. right to counsel. Police questioning? -Mann: Const rts in s.9 and s.10 not triggered by delays that involve no significant physical or psychological restraintwhen reasonable person in subjects position would conclude that he or she has been deprived of libery of choice>> detention (Grant) R. v. Suberu: D delayed but not subject to detention by wait a minute, I need to talk to you. Credit card fraud near TO, 2Ds on stalled in store. Power to arrest w/o warrant. 32 (b) Common law powers of detention - Some powers of detention exist by statute. The ability to make breathalyser demands and routine traffic stops, and some aspects of customs searches are all legislatively created detentions. Common law detentions are more controversial (e.g. Dedman case upheld RIDE program under Waterfield test as a valid form of detention) (i) Investigative detention (Mann test): Reasonable grounds for officers suspicion that individual is implicated in criminal activity under investigation. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances. (ii) Police roadblocks Ability to break the law: s 25.1

TAKING CONTROL OVER THE ACCUSED: Arrest, Compelling Appearance w/out Arrest, and Bail
[1] THE ARREST Similar to powers of search and seizure, Part XVI of the Coe is aimed at balancing legitimate state interests in prosecuting crime against individual freedom Appearance notice -- Alternatively, the officer can first encounter a person on the street committing an offence and then require that person to appear by means of an appearance notice, which must be confirmed by a justice: ss 501, 505 and 508(1) (b) Promise to appear Summons. - The least intrusive way is where a police officer can show a justice that there are reasonable grounds to believe that a persons has committed an offence, and consequently obtains a summons requiring the accused to appear in court on a specific date: s 507(1)(b). Arrest taking physical control over the subject is to be used as a last resort when other measures available for ensuring good conduct and attendance before the criminal justice process are not practical or desirable. - Judicial confirmation must occur before or after the arrest. A police officer, in principle, cannot unilaterally compel the appearance of an accused in court. That decision must, at some point, be confirmed by a judicial officer, typically JPs. Confirmation can occur either before or after arrest. -- What is an arrest? An arrest consists of words of arrest accompanied either by touching of the person with a view to detention, or by the person submitting to the arrest (R v Whitfield) - The police have specified powers to arrest individuals. So do non-police officers. - Must give notice to arresting person of reasons for arrest: s 10(a) Charter; s 29 - Break down the situations into arrest with warrant and without warrant:

Arrest with a warrant - A warrant can be issued only after an information is layed: see s 507 for indictable offences and s 795 for summary offences. - Then, a justice, who signs off on the information, can either issue a summons or warrant requiring the accused to attend before a justice to answer the charge. - A summons MUST be issued instead of a warrant, unless to do so would not be in the interests of the public: s 507. - Must give notice to arresting person of reasons for arrest: s 10(a) Charter - There are some other, less important rules for effecting the warrant Arrest without warrant - See s 494 and 495 s 494 [Applies to any one (and is regarded as the citizens arrest power]: - Anyone may arrest someone they find committing an indictable offence - Anyone may arrest someone they find fleeing from authorities, if they reasonably believe an indictable offence was committed - s 494(2) applies to property owners arrest power s 495 [Applies to police officers] (1) (a) Peace officer may arrest anyone who has committed an indictable offence or who, on reasonable grounds, he believes has committed, or is about to commit, an indictable offence (b) Peace officer may arrest anyone he finds committing a criminal offence (i.e. apparently committing: R v Biron) (c) Peace may arrest a person if he reasonably believes that a warrant exists for the persons arrest (2) This section adopts a principle of restraint; essentially says that for minor offences, officers are directed not to arrest simply because an arrest power exists, rather to consider other factors as well. The officer may arrest only to: (i) establish identity of accused; (ii) secure or preserve evidence of or relating to the offence; (iii) prevent the continuation or repetition of an offence. Alternatively, officer may arrest if its evident accused wont appear in court (3) Shows that the principle of restraint adopted in (2) is only a guideline [Supporting powers] - Use of force permitted in certain circumstances (s 25(1)); use of force likely to cause death or GBH permitted in certain circumstances (s 25(4)); special rules apply when entering a home to make an arrest (s 529) etc - E.g. officer is justified in using as much force as necessary when making an arrest, provided that there is reasonable grounds to use that much force Rights arising on arrest (1) Statutory protections: - s 497 calls for officer who has arrested a person for one of the offences listed in s 495(2)(a), (b) or (c) (basically less serious, summary conviction or hybrid conviction offences) to release that person on an appearance notice or summons, unless grounds 33

similar to those in sections 495(2)(d) or (e) apply (i.e. believes that need to get ID; secure evidence; wont show in court etc) - Where the offender is NOT released, s 503 comes into play; accused is to be brought before a JP to consider the issue of release (must occur without unreasonable delay, and in any event, within 24 hours); without unreasonable delay is the key factor here. Failure to do so may result in an arbitrary detention under s 9 of the Charter (2) Charter rights: - s 10 of the Charter creates specific guarantees arising on arrest: (a) accused must be informed promptly of the reasons for arrest; (b) must be informed of right to counsel Other Code arrest powers - Several Code provisions which authorize arrest in order to provide a measure of compulsion to the judicial process (e.g. if you fail to comply with finger printing requirements) [2] COMPELLING APPEARANCE WITHOUT ARREST

- There are different ways to compel appearance, without arrest, either pre- or postcharge - Arrest is a power of last resort Compelling appearance when charges have NOT been laid (i.e. pre-charge) - If a peace officer decides that a person should be prosecuted, there are a number of ways to compel that person to attend court BEFORE an information is laid and he is actually charged; most obvious example is an arrest without warrant - But the Code also provides that a person may be required to attend court by means of an appearance notice, a promise to appear or a recognizance - Note s 495(2) (discussed above in arrest section), which suggests that, for less serious offences, an officer should not necessarily use arrest powers. The provision indicates, implicitly, that the officer issue an appearance notice instead, unless there is good reason not to. So, if officer decides NOT to arrest, then they may issue an appearance notice: s 495(2) - Even if an officer has arrested a person, the officer can decide afterword, under s 497(1), to release that person w/ the intention to compel her appearance by means of a summons or appearance notice. - The officer in charge, under s 498, is also directed to prefer releasing the accused (officer in charge has broader powers; can release with more restrictive conditions, including a recognizance) - The release provisions, however, are not mandatory, and are merely guidelines (i.e. an officer who fails to comply with the sections is still complying with their duty) - Note that before accuseds first appearance an information must be laid before a justice: s 505 Compelling appearance when charges have been laid (i.e. post-charge)

- After the laying of the information is completed, the justice will issue process in the form of either a summons or a warrant for the arrest of the accused (if the charge is endorsed) - A summons is a document issued by the court commanding the accused to attend court at a specified time and place - The choice b/w summons or arrest warrant lies in the discretion of the justice. - S 507(4), though, directs the justice to issue a summons UNLESS there are reasonable grounds to believe that a warrant is necessary in the public interest. [3] THE BAIL HEARING

Adjournment - The justice, on the application of the prosecutor, can adjourn the bail hearing by up to 3 days without the consent of the accused: s 516 Exceptions to the general bail scheme - s 515(6): Lists a number of types of indictable offences which lead to a reverse onus i.e. accused must show cause why he is to be released. If the accused is ordered to be released, any of the ordinary conditions apply - s 515(11) + s 522 (re: s 469 offences): (i) What are s 469 offences? (see p 885 of Code); (ii) If its a 469 offence, then whay? And, again a reverse onus applies. If the accused is order to be released, any of the ordinary conditions apply. Reviewing order - A decision made by a justice concerning release or detention may be reviewed by a judge upon application of the accused or the prosecution: s 520/521 R v Hall FACTS: David Scott Hall was charged with the murder of a woman in a high profile case. He applied for bail pending trial. The judge denied the application--not for reasons of ensuring appearance in court or protecting the public--but in order "to maintain confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason. Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just cause" under section 11(e) of the Charter ISSUE: The issue in this case is whether Bolan J. erred in denying bail on the basis that this was necessary to maintain confidence in the administration of justice. REASONING: I agree that the opening phrase of s. 515(10)(c), read as conferring a broad discretion to deny bail for just cause, is unconstitutional. However, the balance of s. 515(10)(c), which permits denial of bail where necessary to maintain confidence in the administration of justice, plays a vital role in preserving the bail system and the good administration of justice, and is neither unduly vague nor overbroad Function of para (c): To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the publics confidence in the administration of justice. Without public confidence, the bail system and the justice system generally stand compromised. Bail denial to maintain confidence in the administration of justice is not a mere catch-all for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories Para (c) is not unconstitutionally vague or overbroad: the ground based on maintaining confidence in the administration of justice is more narrowly defined than the public interest standard in Morale Another question is whether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament has hedged this provision for bail with important safeguards. The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is 34

- Where an individual is arrested, he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial General scheme: Release by justice - Assumption that accused should be released pending trial and with few restrictions as possible - s 515(1) directs that the justice shall order that the accused is released on an undertaking without conditions UNLESS the Crow shows cause as to why something more restrictive is justified - s 515(2): Where a judge doesnt order an outright release under s 515, he shall, UNLESS THE CROWN SHOWS CAUSE AS TO WHY DETENTION IS JUSTIFIED, the judge must release the accused in one of the ways listed in that section (a)-(e). A judge cannot make an order under (b) to (e) of s 515(2) unless prosecutor shows cause as to why an order under the immediately preceding paragraph would be inadequate: s 515(3) - s 514(4) (4.3): Set out various types of conditions that MAY or MUST be imposed when an order for release is made under s 515(2) [Objective is to ensure accused attends court or safety of community] - SUMMARY: If an order of release (without conditions) is not made by the judge (s 515(1)), there are two options, each for which the Crown must show cause: (a) Show cause why detention is necessary (see below); (b) or if that fails, try and show cause as to why a more serious condition of release should be imposed. General scheme: Crown seeking continued detention - s 515(10) specifies 3 grounds on which continued detention of an accused may be ordered: (1) detention is necessary to ensure accuseds attendance in court (2) detention is necessary to ensure for the protection or safety of the public (3) detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances [and there are a few listed] (e.g. apparent strength of prosecutions case, gravity of offence, circumstances surrounding commission of offence; et] (see R v Hall for test to apply)

necessary not just to any goal, but to maintain confidence in the administration of justice. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice HELD: Para (c) is constitutionally valid

GETTING READY FOR TRIAL: Disclosure and Juries

[1] DISCLOSURE

- A key right of the accused, and an important obligation on the Crown, is to make full disclosure of the fruits of the investigation to the accused - All the fruits of the investigation are to be disclosed save what is clearly irrelevant or privileged - Disclosure is to be made before the accused is called upon to elect his mode of trial for s 536 indictable offences - R v Stinchcombe established the right of disclosure for an accused, and the case also established various rules that apply to disclosure Content of the right to disclosure - Evidence, if relevant, must be disclosed by Crown, whether inculpatory or exculpatory - Evidence is relevant if it is of some use ot the defence (R v Egger) - Disclosure must be made prior to election or plea - It is a continuing duty to disclose - But the right isnt absolute e.g. need not produce privileged or irrelevant material - What if disclosure isnt made properly? R v Dixon set out a 3 part test for determining whether and, if so, what remedy would be available if there is unjustified non-disclosure (see p 207) - Another issue is privileged information (of which there are 3 general categories informer privilege, solicitor-client privilege and privilege in counselling records). Conflicting protections: disclosure and privileged information - The following topics are covered in this part: (1) Information privilege; (2) Solicitor-client privilege; (3) Counselling records; R v Stinchcombe FACTS: The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. After the preliminary inquiry but prior to trial, the witness was interviewed by an RCMP officer and a tape-recorded statement was taken. Later, during the course of the trial, the witness was again interviewed by a police officer and a written statement taken. Defence counsel was informed of the 35

existence but not of the content of the statements. His requests for disclosure were refused. During the trial defence counsel learned conclusively that the witness would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the contents of the statements to the defence. The trial judge dismissed the application. The trial proceeded and the accused was convicted of breach of trust and fraud. Conditional stays were entered with respect to the theft counts. The Court of Appeal affirmed the convictions without giving reasons. REASONING: Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. HELD: Crown counsel was not justified in refusing disclosure here on the ground that the witness was not worthy of credit: whether the witness is credible is for the trial judge to determine after hearing the evidence. The trial judge ought to have examined the statements. Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced. [2] JURY SELECTION S471 of Code says that every indictable ofense shd be tried by judge and jury except where otherwise expressly provided for by law, but lots of opt-ous. Only a few indictable offenses (e.g. theft less than $5000) cant have jury. No person can be disqualified based on sex. 12 jurors, but can drop to 10 (s644). Alternates but cannot be substituted once

evidence has been heard (s631). Exemptions personal interest in matter to be tried, relationship with counsel/accused/witnesses, personal hardship or other reasonable cause. Challenges for Cause Candidates presumed to be impartial counsel not allowed to sk any questions regarding challenge for cause w/o first satisfying judge that there is reason. o Four types of interest prejudice direct interest in trial (witness, accused), specific prejudice (attitudes about case), generic prejudice (stereotypical attitudes about accused, victims, witnesses), conformity prejudice (desire in community for expected outcome) o Two step challenge process: (1) counsel tells judge basis for challenge (must be realistic probability for partiality), (2) counsel permitted to ask questions to juror- sometimes only 1-2 predetermined questions o Williams evidence abt widespread bias against aboriginals, lower ct held insufficient to raise realistic potential of partiality, SC held this was setting bar to ohigh. Signaled trial courts should leave door open towards challenges abt race. Peremptory limited in number, 20 for first degree murder, 12 in cases of sentences for 5 yrs or more. Accused can strike whooever he wants, debate on Crown ability (e.g. to produce all-female jury in sex assault case struck down in Bain)- crown cant use challenges to produce jury that appears impartial, but not clear what this means.

No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences. R. v. Nasogaluak (SC 2010) R. v. Nasogaluak (SC 2010) Charter violations allow reduced sentencing Intoxicated driver, pulled over, cops beat him up to get him to comply. Pled guilty for drunk diving, at sentencing ct found that cops violates Charter s.7 and 11(d). As remedy, lower granted reduced sentence of conditional discharge, despite statutory min sentence. SC held ct could consider state actors conduct in developing sentence relating to offense- Section 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender". But Ct usu couldnt order remedy below min sentence from Parliament- would be unlawful interference in role of Parliament. Even under s.24(1) of charter, departure from min not warranted, although possible in other circs. SC upheld appeals ct Imposeing min fine. R v C.A.M (Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit) The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment The Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit It was open to the sentencing judge to reasonably conclude that the particular blend of traditional sentencing goals required a sentence of 25 years in this instance R v Priest (Sets out sentencing principles re: (1) appropriate sentences where crime committed in an area of high incidence of the relevant crime; (2) first time offenders; (3) proportionality of sentences) Break and enter, w/out violence or vandalism was the offence, committed in an area of unusually high incidence of the crime The principles to be applied where there appears to be an unusually high incidence of a particular crime in the community have been set down by this court. It is ONE 36

PRINCIPLES AND LAW RELATED TO SENTENCING

NOTE: Before beginning a sentencing question, first look at what offence for which the offender is being sentenced: Is there a minimum sentence? Is there a maximum? These points will be important for the applicability of some of the sentences. [1] GENERAL PRINCIPLES OF SENTENCING

- Mostly codified in the Criminal Code S 718: Lists objectives of sentencing, including denunciation, deterrence, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgment of the harm caused to the victim and to the community S 718.01: Where children victim of abuse and under 18, then primary weight to denunciation and deterrence objectives S 718.1: Proportionality principle enforced (a fundamental principle of sentencing) S 718.2: Other sentencing principles court MUST take into account: (a) Aggravating and mitigating factors (b) All avail sanctions should be considered other than impronment, with part. Attention to circs of aboriginal offenders

factor to take into account, and cant be determinative of the sentence The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation, or a very short term of imprisonment followed by a term of probation. Court should consider all other dispositions before imposing a custodial sentence. S 718(c) instructs that separation of offenders from society is an appropriate objective of sentencing WHERE NECESSARY. S 718.2(d) directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Proportionality is a fundamental principle of sentencing. The sentence imposed by the trial judge in this case was wholly disproportionate to what occurred. This was a break-in of non-residential premises. There were a number of mitigating factors that were completely ignored by the trial judge. The appellant had no prior record; he confessed to the offence; he returned all of the stolen goods; and he pled guilty at an early opportunity. The trial judge was required to give effect to these mitigating factors in imposing sentence on this appellant. While I hesitate to label the sentence grossly disproportionate, it approaches that standard. It was well above the threshold of the "clearly unreasonable" or "demonstrably unfit" sentence requiring intervention by this court For the foregoing reasons, we allowed the appeal and reduced the sentence to time served (approximately five weeks) and one year probation on the statutory terms and on the special terms that the appellant report forthwith to a probation officer and thereafter once per month if required and that he make reasonable efforts to seek and maintain employment or education. R v Boucher ((1) Appropriate sentence for cases involving domestic violence; (2) Aggravating factor of planned and persistent conduct) Attempted murder was the offence. 8 yrs to life is range of ct-approved setences. Principles of denunciation and deterrence are of paramount significance in cases involving domestic violence While it is true that the complainant did not suffer any physical injuries, in the context of an attempted murder, the absence of physical injuries is a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate. Also in domestic relationship, likelihood of psychological trauma to civtim arising from obsessive conduct is significant and justifies additional penalty. In addition to the aggravating feature of a domestic context, there is an additional aggravating factor present in this case that appears to have been present in some, but not all, of the authorities relied on by the Crown, namely, the planned and persistent nature of the respondents conduct Despite the foregoing conclusions, I would not interfere at this time with the sentence that was imposed by the trial judge, other than to vary the period of probation from two years to three years. In all of the circumstances, I do not consider that it would be in the interests of justice to re-incarcerate the appellant at this time. 37

[2] [a]

TYPES OF SENTENCES Incarceration

S 718(c): Imprisonment should be used where necessary (as pointed out in R v Priest) S 718.2(e): Imprisonment should be used as a sentence of last resort, particularly w/ Aboriginal offenders Use case law to add more discussion [b] Conditional Sentence of Imprisonment

S 742.1: This section authorizes service of a sentence of imprisonment in the community in certain circumstances. Some offenders are excluded (e.g. those convicted of a serious personal injury offence: s 752, or an offence punishable by a minimum term of imprisonment). To impose this sentence, the following requirements must be met: (i) the sentence of imprisonment is imposed for less than 2 years; (ii) the service of the sentence in the community wouldnt endanger the safety of the community; (iii) the sentence would be consistent with the fundamental purpose and principles of sentencing S 742.3: (1) Outlines the compulsory conditions of such an order; (2) Outlines optional conditions R v Proulx (This case establishes the following: (1) A conditional sentence, unlike probation, is aimed at both puniative AND rehabilitative aspects; probation is aimed at a rehabilitative sentence; (2) Sets out the process a judge must go through when imposing this sentence; (3) General principles re: conditional sentences) The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm (1) A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception (2)

 Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. Interpreting the requirement that judge must impose a sentence of imprisonment of less than 2 years: (1) In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate; (2) Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliaments clear message to the judiciary to reduce the use of incarceration as a sanction. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future (3) Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence [c] Probation and Community Service

(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding 2 years S 731.1: Optional and mandatory conditions to be imposed R v Ziatas [d] [e] [f] Fines: s 734

Absolute or Conditional discharge: s 730(1) Recognizance Orders

An information can be laid before a justice where a person fears that another person will cause harm to them, a partner, child etc. A justice, if satisfied on the evidence, can order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour [g] Restitution

S 738: Where an offender is convicted (or discharged), the court imposing sentence or discharging may, IN ADDITION TO ANY OTHER MEASURE imposed on the offender, order that the offender make restitution to another (and then the section lists a number of scenarios where restitution can be ordered) (e.g. payments for damaged property; and payments to victim who suffered pecuniary loss as a result of psychological or bodily harm delivered by the convicted) [h] Victim Surcharges: s 737(1)

Where D is convicted or discharged of an offence, a victim surcharge may be imposed upon him/her, in addition to any other punishment. Consideration is taken into account whether or not such a penalty would result in undue hardship to the convicted [i] Sentencing Aboriginal Offenders

S 718.2(e) requires that all available sanctions other than imprisonment be first considered with all offenders, with particular attention to the circumstances of aboriginal offenders R v Gladue Overreliance upon incarceration is a particular concern in the sentencing of aboriginal Canadians The provision may properly be seen as Parliaments direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to 38

S 731: If person convicted of an offence, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding the offence, a prohibition order may be made (a) if no minimum punishment is prescribed OR

the extent that a remedy is possible through the sentencing process. The Court identified 2 unique circumstances of Aboriginal offenders: (1) The systemic factors which often play a part in bringing the specific offender before the courts; and - As a practical matter, the Court does not require each Aboriginal offender to provide the sentencing judge with a history of the discrimination faced by Aboriginal people in Canada. Rather, the Court states that judges must take judicial notice of these factors - It is important to note that the Court states that the provisions of s. 718.2. (e) apply to all Aboriginal offenders. It does not matter if the person is a status or non-status Indian, Metis or Inuit person - the section applies equally to all (para 90). Similarly, it does not matter if the person lives in an urban area and/or has been totally estranged from his or her culture - the section still must be applied. The provisions of the section must be applied in all cases where the offender identifies him or herself as an Aboriginal person and provides some evidence as to how their Aboriginal identity has had a part to play in understanding why they are before the court. (2) The types of sentencing approaches that might be appropriate to the offender because of his or her Aboriginal heritage - Restorative justice approach is relevant when sentencing aboriginal offenders - The Court broadly terms these approaches restorative justice approaches. It describes restorative justice as: an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime - The Court makes it clear that a sentence that is intended to address restorative justice concerns should not be seen as necessarily lighter than a sentence of imprisonment. The Court also cites articles that suggest that in some circumstances, a restorative justice sentence might impose greater burdens on an offender than jail, particularly if there are probation terms incorporated into the sentence - Community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. - The Court makes it clear that the fact that an offender is an Aboriginal person will not automatically result in a non-prison sentence. The Court also indicates that the more violent the offence, the more likely that the sentence will involve imprisonment, although the Court indicates that perhaps the term of imprisonment might be less in the case of an Aboriginal offender as opposed to a non-Aboriginal offender [k] Parole

whichever less (having regard to the circumstances of the offence, characteristics of the accused etc)

APPEALS
Appeals of indictable offences (a) Appeals by the accused - s 675(1)(a) lists the grounds of appeal - s 686(1)(a) lists grounds on which court of appeal can grant appeal: (i) verdict set aside b/c unreasonable or cannot be supported by the evidence; (ii) wrong decision on a question of law; (iii) on any ground that there is a miscarriage of justice - s 686(1)(b) (follows s 686(1)(a): this section sets out grounds on which an appeal can be dismissed (other than dismissing if none of the grounds for granting are made out) [See statute for how the sections in (a) relate] - It has been suggested that the underlying theory of s 686(1)(a) is miscarriages of justice (R v Morrisey) - See p 355 for options after granting appeal under s 686(1)(a) - Note: appeal can be in relation to sentencing too -Interim decisions not appealable but can be subject of judicial review applications where jurisdictional errors occur e.g. to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or access third party records. For PI, action for certiorari will only be granted if judge fell into jurix error (not sufficient to show error of law). E.g. If not evidence on essential element of charge for PI. Standard of review - Varies depending on ground of appeal - Pure questions of law, standard of review is correctness (so appellate court can substitute opinion); questions of fact should not be overturned in the absence of a palpable and overriding error; etc Unreasonable verdicts - Ask whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered (R v Yebes). Could the TJ have reached its conclusion on the evidence before it? - Works in judge or jury trials; harder in jury ones though - What about overturning decision if TJs reasoning process was unreasonable? Yes (Beaudry) Errors of law and miscarriages of justice - These are similar indeed they are all similar, in that miscarriage of justice underpins all of them - No requirement that verdict was not supported by evidence - An error of law is any decision that was erroneous interpretation or application of the law (R v Khan) (note that the curative provision applies to this ground) (e.g of error 39

743.6: Where an offender is sentenced to a term of 2 years of imprisonment or more on conviction of an offence set out in Schedule I or II that were prosecuted by way of indictment, the court may order that the portion of the sentence that must be served before the offender may be released on full parole is of the sentence, or ten years,

of law review: where there is a air of reality to a defence and TJ instructs jury there is no air of reality) - Miscarriage of justice can either be substantive or procedural (e.g. if the error at trial is one of mixed fact and law, e.g. ineffective legal counsel The curative provision - Section 686(1)(b)(iii) allows a court of appeal to dismiss an appeal despite an error of law provided no substantial wrong or miscarriage of justice has occurred - see test on p 362 Procedural irregularities (b) Appeal by Crown Questions of the Crime

1. 2. 3. 4. 5. 6. 7. 8. 9.

What does the Code say about the actus reus? Mens rea, strict liability, or absolute liability? Subjective or objective mens rea? Is this a situation of impossibility? An attempt? Is there a mistake of fact or law? Are there causation problems here? Are there Charter issues here? What does the jurisprudence say to those issues? Are there any defences that apply here?

40