Kikkik (1958) Inuit woman charge with murder, criminal negligence and abandonment. 4 ways to tell the story: trial transcript, The Desperate People, sculptures and films perspective. Judge (Sissons) instructs the jury of an early idea of the modified-objective standard: “revert to an earlier age and try to understand Kikkik and her life.” *Many themes from the course interact with this case. Translation issues. different texts make visible the many challenges for the legal imagination as it seeks to do justice at the encounter of settler and indigenous legal orders. [self defense and provocation considered]
AR+MR-Defences=Criminal Responsibility
Burden of Proof/P of I:
Woolmington-(1935) ♕ has the persuasive burden in a criminal trial (which is reinforced by s11(d) of the Charter.) [first time presumption of innocence articulated to the jury] [exceptions: reverse onus situations—statutory, evidentiary burdens ‘air of reality’, NCRMD]
♕must prove guilt of all aspects BRD.
Oakes (1986) a reverse onus provision that if found in possession of drugs an accused must prove no intent to traffic offended s11(d) [PofI] [Permissive presumption ok but in this case was deemed mandatory presumption due to “requirement” language.]
*Balance of Probabilities (Civil standard) vs. BRD (Criminal)àBP requires only a finding that more likely ☠ is guilty than not [adversarialàsome responsibility on the accused], whereas BRD imposes the conviction of the trier of fact, as proven by ♕.
TEST: Reasonable limit on freedoms? (1) Must have significant or pressing objective (2) Proportionality—loss of rights=gains. àFails test.
*In criminal procedures, guilt on all aspects must be proven BRD in accordance with the Charter’s PoI.
Whyte-(1988) Provision violating 11(d) saved by the OT on basis of public interest. SCC rejects ♕ argument that would have limited PoI to particular element of an offense. [presuming that being in driver’s seat= care and control = unconstitutional under s.11(d) even though only one element of the offence]
Downey (1992) Summary of takeaways from s.11(d) Pt 6: “A provision that might have been intended to play a minor role in providing relief form conviction will nonetheless contravene the Charter if the provision must be established by the ☠.”
Explaining this to the jury:
Lifchus (1997)à”Reasonable doubt”
Is a legal term and should not be made as though would in own life. Doubt≠instinct.
(1) ♕ has burden (2) Based on reason and common sense/logic NOT emotion. àless than absolute certainty but more than probability. (The term “reasonable doubt” is grounded in reason and common sense. It is more than probability, but not certainty. If you are sure the accused committed the offence, you must convict; if you think he is only “probably” guilty, you must acquit.)
Starr (2000)àconfirms “Lifchus Standard”
Dissent: guideline not iron-clad, so ok that TJ missed “special legal principle.”
AR: The AR requires a (1) physically voluntary (2) act or omission, (3) sometimes in proscribed circumstances and (4) sometimes causing certain consequences.
ACT: Read provision, ACT or OMISSION?
OMISSIONS
(AR)àfailure to act. (Look for words like “failing to”) Should we criminalize “doing nothing”? the criminal law will not punish for a mere failure to act, unless a duty to act has been imposed by statute or CL.
CL recognizes 3 categories (now codified) of exceptional circumstances where there’s a legal duty to act: [see section 215-218]àWhat was the result of this failure? Look to 180, 219,220 or 221
(1) Relationships of dependency (parent-child, dr-patient, jailor-prisoner, etc) (215)
(2) Undertaking to do something (217)
(3) Duty to use reasonable care in performing dangerous tasks (like heart surgery) (216)
Browne (1997)àCase law for 217: “undertaking to do something” and omitting to do so might be dangerous to life= can be found guilty of an offence.
- gf swallows cocaine bag and starts convulsing.. bf calls taxi “I’m going to take you to the hospital”àDOA.
- Was this “undertaking”? à No. Not a relationship identified by statute, so look to undertaking.
“Undertaking” standard: (high threshold) Must be clearly made and with binding intent. ≠ promise to take to hospital.
Thornton (2003) à Legal duty & common law.
Thornton was HIV+, knew it, and was educated about it. He donated blood to Red Cross. Charged with nuisance endangering lives of the public (180)àDoes not want to be using common law duties to ground liability so tries to fit within statute. *sentencing for omissions = go to 180 for common nuisance.
216à180.
Can also still have Common Law duties but must find statutory root for them:
Coyne duty can arise out of statute or common law (dangerous object)
Popin duty to protect children from illegal violence
Cuerrier duty to disclose HIV+ status
..issue ultimately is left unaddressed.
ACTS
(a) Factual causation: Did X cause X?
Concerned with how the victim died in a medical, mechanical and physical sense.
(b) Legal causation: Consequences/Causation(AR):
Even though many offences are defined in a way that makes it so the voluntary act/omission complete the actus reus, others require specific outcome or consequence to complete it: ie. Death/bodily harm/or modes of causation.
✩àWas the perceived consequence caused by the accused’s conduct?
Winning (1973)àNo causal connection
Eatons CC info misrep àcharged for “obtaining credit by false pretenses” – element of this offence requires reliance on representations.
Causal connection ≠ sufficiently strong to support criminal liability. Did not rely on her representations in the form, just her name and address.
Smithers (1978)àbeyond “de minimis”
(aka more than a trivial causeàgoverns analysis of legal causation for almost all crimes in Canada)
“must take victim as you find them” (Blaue)(religion!)
*Low threshold- has been Charter challenged
Game of puck, racial chirps, Smithers punched deceased in head, kicked in stomach—5 mins later stops breathing due to asphyxiation on vomit. Causal connection?
TEST: An action only has to be an operating cause outside of the de minimis range in order to be deemed the cause of a prohibited result in criminal law.
Facutal: Did A cause B? Look to evidence of witnesses and surrounding circumstances to decide. ♕ must show BRD kick caused death. In this case, proved that “but for” the kick, would not have diedàmanslaughter.
*If first degree murder, more stringent test.
Cribbin (1994)àconstitutional challenge to Smithers.
Man beaten and drowns in own blood.
*Uphold de minimis: If you could have foreseen risk of bodily harm not trivial/transitory, and you have contributed to death beyond de minimis range, criminal.
àBecause burden is on ♕ and requires proof of moral fault (foreseeable risk of bodily harm), does not offend s.7 of the Charter ànot punishing morally innocent.
Harbottle (1993)à1st D murder & Causation
Is participation enough for 1st D murder (214(5)) since he restrained during sexual assault which led to death?
(1) Must be more than de minimis: substantial/integral cause for 1D murder (2) Accused must play active/physical role in the killingàso in this case, Harbottle guilty of 1D.
*Since CC ≠ cover causation, Harbottle authority for ‘party provision’ as refers to 1D murder.
TEST: (1) The accused was guilty of the underlying crime of domination or of attempting to commit that crimeàso therefore (2) committed in the murder (3)The accused participated in the murder in such a manner that he was a substantial cause of death of the victim (4) There was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim and (5)The crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.
Netteà”Significant Contributing Cause”:”Re-wording of “beyond de minimis” standard from Smithers: Should instruct jury that standard is “more than insignificant or trivial”
*Do not extend Harbottle causation to 2D murder, decide that for 1D only and that de minimis still appropriate for manslaughter/murder.
Facts- Old lady hog-tied- falls to floor and dies. àAcquitted of 1D because did not meet substantial/integral cause (Harbottle), dropped down to “significant contributing cause”
INTERVENING ACTS
Pagett (1983)àSevering chain of causation
*Do not have to be the one who put forth the actual blow to be the one charged with homicide.
Pregnant woman human shieldàself defence? No. Police officer not in concert with the accused, therefore no severance of the chain of causation.
Self defence not available if you caused the danger yourself to begin withàHe started it.
S.R. (J.) (2008)àContributing cause OK.
But for the decision to engage in that group activity (gun fight), would not have died.
Innocent bystander shot in street gunfight.
(Example of this= drag racing)
Menzes: If they withdraw from situation and you know that, you alone are liable.
Maybin(2012)àIntervening act/Chain of causation
Objective Forseeability/Independence?
Fight at bar, bouncer punches in head.
But for actions, would not have died, as per Smithers/Nette, not limited to immediate cause or most significant.
Tools for finding intervening cause (companion to Smithers/Nette): (1) Reasonably foreseeable by original actors (2) Independent factor that severs impact of accused’s action, making intervention the sole cause?
àFind that bouncer’s intervention was foreseeable enough. ß both approaches valid as analytical aids
General nature of the intervening act and the accompanying risk of harms were reasonably foreseeable and the act was in direct response to the appellant’s unlawful actions.
*Intervening act ≠ that death could be prevented. (blood transfusion example)
VOLUNTARINESS
- fundamental principle of our criminal law that no conduct shall be found to be criminal unless the act is voluntary [AR] conscious choice + control of action *Responsibility for physical
(policy- free will/meaningful choice)
Larsonneur (1933 UK) Illegal alien but was not free to make physical choice that would have negated her being charged, therefore example of improper ignorance of the voluntariness component of the AR.
Kilbride v. Lake (1982 NZ) Man left car in pk lot, ticket for not displaying warrant of fitness= removed by someone else? à He had no opportunity to take a different course. The omission to carry the warrant was not within his conduct or control , thus no voluntariness, and no criminal liability.
King (1962) There can be no AR unless it is the result of a willing mind, at liberty to make a definite choice or decision.Man under anesthetic from dentist, told not to drive but did so anyway & crashed. Testified he did not hear the warning. Convicted of impaired driving.
àHe was not given a choice because he did not know.
Free will & meaningful choice = ♡.
Ruzic (2001) àexpanded to include moral vol àhad no moral choice but to smuggle the drugs.
*Absence of voluntariness is always a full defence to a crimeà Did they have any other choice? ✩
CIRCUMSTANCES
àCircumstance of the situation makes the activity criminal. {ie. Lack of consent makes force= assault}
Jobidon (1991) Cannot consent to intentional application of force causing serious bodily harm.
Cuerrier (1998) TEST: Fraud vitiating consent under 265(3)à ♕ must show: (1) dishonest act/failure to disclose AND (2) deprivation of safety/health (denial of knowledge that would have caused her to refuse sexual relations—if significant risk à(see Mabior)
HIV positive, does not disclose
Circumstance here: Is HIV+ = makes sex, ordinarily legal activity illegal.
Mabior (2012) àClarifies/limits “significant risk” factor Charged w/ 9 counts sexual assault, does not disclose HIV+ status. Aggravated sexual assault?
What circumstances needed for “significant risk of bodily
harm”? “significant risk of bodily harm” as requiring disclosure of HIV status if realistic possibility of transmission. àAbsence of realistic possibility precludes a finding of fraud vitiating consent under s. 265(3)(c). àProportional analysis of risk and harm here. [seriousness of risk x probability= deprivation?]
àIn this case, if used condom no cause of action.
àConsider policy here- criminalization etc.
Hutchinson (2014) Poking holes in condom when gf had refused to have unprotected sex.
(1) Did she even consent? (2) Is it vitiated by fraud pursuant to Cuerrier/Mabior? (1) Yes consented (2) TEST: Dishonesty component is met because of altered condoms, deprivation component met because deprived her of the choice to not get pregnantà*Significant risk of bodily harm= met. Convicted of agro sexual assault. (273)(Other judges said consented to different activityàwas particular type voluntarily agreed to)
CONTEMPORAENITY
AR+MR must coincide.“common sense approach” (must simply be concurrence at some point) / “continuous transaction” approachàCL theory.
Fagan (1969) àIntention can be superimposed onto AR. Example of “continuous act theory”.
Was act ‘complete’ when ran over foot? No. (But if yes, could claim that it was an accident)
Leaves car on cop’s foot. (Assault charge) Act was initially not intentional, but the intention was formed during the act which made it criminal.
(Act was initially not intentional, but the intention was formed during the act which made it criminal.)
Miller (1982) *Must look to act as a whole to determine contemporaneity. àOnly do this if reality and common sense require. squatter on mattress = fire.
àUnintentional act followed by an intentional omission= intentional act. (Must consider did accused commit the original act? Could they do anything about it at all?= own it as a guilty act if you did it and later can, and fail to do something about it – if you “stop the train”, not legally responsible.) [jury= “legal responsibility” rather than a “duty”—imputes morality]
Cooper (1993)à SCC Leading case= endorsement of “continuing” theory.
(drunk strangulation & black out= death)
Sufficient that knew causing her bodily harm and knew it was so dangerous that she might die – the intent and the act of strangulation coincided at some point (intent need not have continued through the entire time it caused to strangle her, during which time he blacked out. Intent in the moment, at some point= guilty.
Meli (1954) death by exposure. àfurther stretch of the time frame we will allow for something to be continuous and related to the original act.
Bottineau (2011) àOntario uses continuing.
Sufficient if ♕ proved that at some point the grandparents knew was a likely outcome of their failure to provide requisite care.
Williams (2003)à [strict application of continuous]
HIV transmitted does not know when.
Because concurrence (could not definitively prove coinciding endangerment and intention) could not be conclusively proven, gets attempted agro assault. [strict application of continuous theory]
àSince did not know when transmit, raised RD.