CHAPTER 2: ACTUS REUS
s.9:All crimes must be in the CCC, and the only CL crime left is contempt of court
s.11(g) CCRF: Cannot be found guilty for any act or omission that at the time it happened was not a crime under CCC or international law
AR requires: 1. Act or omission; 2. Common law voluntariness; 3. Causation; 4. Surrounding criteria
Omission: can be a crime if you have a positive legal duty (specified in code, legislation, or tort)
s.215: Duty to provide necessaries (parent/guardian/spouse/CL partner/charge of incapacitated person), but rebuttable with “lawful excuse” (NB: reverse onus shift of mandatory presumption that is rebuttable with discharge of evidentiary burden)
Instan: Niece had legal duty to care for aunt because she was receiving a gain by living with her
Beardsley: No legal duty to lover who dies from morphine overdose because she was an experienced, voluntary participant and the level of relationship was not sufficient to impose duty (not spouse)
Urbanovitch: Baby dies from father’s abuse; mother says she didn’t know; represented together
Monin: Ought to have had knowledge, regardless of whether she actually did (objective, not subjective), so criminally negligent because of her omission
Matthias:Showed willful and reckless disregard for child by withholding information from doctors, so inconceivable that she did not know (stronger language than objective knowledge)
Hubband (dissent): Describes parents as children themselves, and says mother was not criminally negligent because no evidence she knew and no omission because took baby to regular checkups
Thorton:Donated blood (not illegal act) when he knew he had HIV (omission about himself). Problem because he did not have a legal duty not to donate blood, so court said legal duty = CCC duty or CL duty, the breach of which creates a CCC offence: CL duty + CCC crim = legal duty
Ssenyonga: Man not convicted for passing on HIV to 3 women who he did not tell about HIV because women were specific and could not fall under “public” nature of common nuisance. No SAconsent
-What must people disclose when having sex? HIV, herpes, marriage, age?
Volunatriness: Must be voluntary and chosen at very basic level (ex. automatism=no voluntariness)
CHAPTER 3: MENS REA
Every criminal offence needs AR + MR
Judge gets to decide if given MR requires objective or subjective test (can enforce “reasonable man”)
Subjective MR: “knowingly” “intention” “pretending” “belief” “willful”
Objective MR: “negligently” “recklessly” “carelessly”
Fact Pattern: Parties
s.21 deals with the liability of parties and principals in the commission of an offence.
s.21(1)(a) says the principal will be liable for the offence if he actually commits the offence
s.21(1)(b) says a person may be liable as a party to an offense for acts or omissions which are done for the purpose of aiding the principal to actually commit the offence. This requires AR (the acts or omissions had the effect of aiding the principal) and a MR (the purpose was to aid the principal).
s.21(1)(c) says a person may be liable as a party to an offense if the accused abetted the principal. Abetting means encouraging the principal to commit the offense, and requires more than mere presence (unless the accused is present because he is supporting the principal).
s.21(2) extends liability for the principal and parties beyond the wrongful act originally intended. Parties will be liable for all other offences that occur while carrying out the original intention, if parties knew or ought to have known that the extra offences were a probable consequence of carrying out the original offence. This has come under constitutional attack because of the “or ought to have known” part. Some offences require a minimum MR, so parties will not be convicted of offences like murder and attempted murder that require subjective foresight if the Crown has not proved MR for the accused. However, parties can still be liable for the included offence of manslaughter if the Crown cannot prove subjective MR for the accused, but can prove a reasonable person in all the circumstances would have foreseen at least a risk of harm to another as a result of carrying out the common intention (Jackson). Hibbert tells us that the “common intention” only requires that the party and principal have in mind the same unlawful purpose, but does not require them to have the same motives and desires.
s.22(1): If you counsel a party to an offence (procure, incite, solicit) you are also a party to the offence, even if it was carried out in a different way than how you counseled it should be
s.22(2): If the party commits another offence (other than the one you counseled for) you are liable if you knew or ought to have known the additional offence was a probable consequence of counseling
Absolute Liability: proof of AR is enough for conviction, and only defences are AR defences
Ping Yuen: store owner guilty under AL for having “near beer” that had higher % than bottle said
Sault Ste. Marie (Pre-Charter): City charged with civil offence of pollution under penal statute in CCC when a company they contracted garbage disposal to was very guilty of water pollution. “Public welfare offence”are not intended to punish people for their intentions, but rather to prevent bad social consequences of events. Dickson: AL has shown no heightened level of prevention, so changes tests:
Absolute Liability: Crown must prove AR beyond reasonable doubt, and only defence is AR defence
Strict Liability: Crown must prove AR beyond reasonable doubt, and conviction will follow unless accused proves due diligence on balance of probabilities (objective standard)
Full Mens Rea: Crown must prove AR and MR beyond a reasonable doubt
-MR can translate identical outcome and act into different offences (“I am Sparta” kick off cliff)
-Presumption that public welfare offences now fall under strict liability, unless statute requires MR (“willfully, knowingly, etc”) or statute clearly establishes AR as only requirement (AL)
Re: BC Motor Vehicle Act (Post-Charter):Statute clearly creates absolute liability for driving while license is suspended, regardless of fault, because province is fed up with people saying “I didn’t know it was expired” and it is hard to prove otherwise and expensive to ensure everyone knows.
LaMere: PFJ that innocent until proven guilty: AL + potential incarceration = s.7 violated
Wilson: PFJ that punishment must be proportional to crime: AL + disproportional punishment to crime = s.7 violated
Pontes:Cannot have AL for offences which result in incarceration b/c violates s.11(d)
Strict Liability
Wholesale Travel:Legislation creates SL offence by prohibiting false advertising but allowing defence of due diligence built into legislation (establish there was an error, prevent error, bring attention of error to people, and timely retraction)
Lamer (dissent): “He establishes that” reverses onus to accused to prove due diligence on civil standard, but still leaves possibility of conviction with reasonable doubt. PFJ should be available under regulatory offences if there is a chance of incarceration. Justifiable infringement under s.1?Objective: Crown says to promote competition, Court says to ensure false advertisers are punished without losing convictions due to difficulties of proving guilt (valid objective). Rational Connection: obviously convicting everyone who falsely advertises w/o proving MR will ensure objective is met (valid). Minimal Impairment: Could use a mandatory presumption of negligence and evidentiary burden on accused (invalid). Proportional: Even if it didn’t fail already, not proportional to imprison someone for up to 5 years for false advertising (invalid).
Cory (dissent in part): Can remove MR from regulatory offences and replace with due diligence or strict liability because purpose of reg offence is prevention of harm to vulnerable groups and purpose of crim offence is punishment for individual wrong. Licencing (accepted terms of strict liability) and vulnerability (need to protect public) justifications. Impossible for Crown to discharge all reasonable doubt when such an information asymmetry exists, and the need to protect public great, so SL is good middle ground: reverse onus and imprisonment do not infringe s.7 or s.11(d).
1. There can be offences where negligence is MR component and does not infringe s.7: Unanimous
2. The timely retraction provisions (s.37.3(2)(c) and (d)) infringe s.7, are not justified under s.1, and are accordingly unconstitutional: Unanimous
3. The reverse onus provision ("he establishes that" in s.37.3(2)) infringes s.11(d): Unanimous, except for Cory/LHD who says it does not infringe, and if it did it would be justified under s.1
4. Infringement is justified: Iacobucci, Stevenson, Gonthier
5. Infringement is not justified: Lamer, Sopinka, La Forest, McLachlin
6. Overall, reverse onus provision is upheld 5-4
Fact Pattern: Homicide / Causation
s.222 deals with the offence of homicide. The AR for homicide is causing the death of another person, either directly or indirectly. The causation element is a question of fact that is decided by the jury. Causation has both a factual and legal component. Factual causation asks if the action of the accused contributed to the harm in a technical and physical sense. Legal causation is concerned with whether the accused should be attributed moral responsibility for the harm. If factual causation has been established, legal causation will usually follow. The requisite standard of factual causation for manslaughter is a contributing cause outside the de minimis range (Smithers). The requisite standard of factual causation for murder during the commission of another offence is an action that is a substantial and integral part of the killing (Harbottle). Nette tells us that the test should be put to the jury in a positive light (“significant cause” rather than “not trivial cause”). Johnon: taxi—no sig cont
s.222 also tells us that homicide is either culpable or non-culpable. Culpable homicide is murder, manslaughter, or infanticide. Culpable homicide is committed when a person causes the death of a human being by any means of an unlawful act, by criminal negligence, by threats or fears of violence causing that person to do anything that causes his death, or by willfully frightening sick person or child.
Fact Pattern: Murder
s.229 deals with the offence of murder. There are three circumstances in which murder can occur. s.229(a) says murder occurs when a person intentionally causes the death of another person. Murder can also occur when a person means to cause bodily harm to another that he knows is likely to cause death, and is reckless whether death ensues or not. The MR elements of this offence are the intention to cause the requisite degree of bodily harm, couples with the necessary recklessness as to its effect.
s.229(b) says murder can also occur when the MR established in the above section exists, but the AR results in death to an unintended victim. If the MR and AR are proved, it is irrelevant that the death was caused by accident or mistake, and that the accused did not mean to cause death or bodily harm to that particular person.
s.229(c) says if a person does anything for an unlawful object that he knows or ought to know is likely to cause death and death results, he is guilty of culpable homicide, even though he might have intended to carry out the unlawful objective without causing death.
Martineau concluded that murder is a specific intent offence, and the requisite MR for murder cannot be anything less than subjective foresight of death. ‘Ought to know’ section of s.229(c) struck down.
s.230 deals with murder in the commission of an offence, but has been struck down by Vaillancourtbecause murder requires MR of subjective foresight of death (which this section does not require).
Criminal Negligence: Do not punish morally innocent V punish the act of killing someone (body?)
Creighton: Experienced drug user injected girl with cocaine and she died; MR violates s.7?
*MR of “unlawful act” only requires objective foreseeability of risk of bodily harm which is neither trivial nor transitory (McLachlin)
McLachlin: Lack of MR in manslaughter is already accounted for (not murder) / no minimum sentence / MR for “unlawful act” combined with thin skull rule = symmetry between fault and consequence / acknowledge the “body” / keep objective test and personal characteristics (experience, education, etc) are only a defence when equate to incapacity to appreciate risk
Lamer:s.7 requires that manslaughter MR needs foreseeability of death because of stigma / use subjective-objective test to account for personal characteristics
Browne: Two drug dealers, one swallows drugs so police don’t catch them, gets sick, friend says he’ll call 911 but calls cab instead: acquitted because no legal duty to care, no proof 911 would save her
Naglik, Hundal: Consider circumstances of accused, but personal characteristics don’t matter unless they prevent you from appreciating risk
Wilful Ignorance: Accused suspects that certain facts exist or certain consequences may ensue, but deliberately refuses to consider or acknowledge risk—theoretically tested subjectively
Blondin: Drugs in his scuba tank coming from Japan—didn’t know what was in there, but court said with narcotics you can draw inference that he was being willfully blind
Recklessness: Accused recognizes existing circumstance or is aware that conduct creates risk but proceeds with this knowledge (ex. s.229(a)(ii) murder when he knows conduct likely to cause death) / Complies with charter because tested subjectively
Intention or knowledge: Many offences in CCC require specific intent/knowledge
Vaillancourt: Accused commits robbery with knife, and friend has gun he thought was unloaded, kills someone. Lamer says cannot substitute intent to rob + intent to use gun for foreseeability of death. Not saved by s.1 and unconstitutional, would need at least objective foreseeability of death. NB: s.230 is now struck down by Martineau because MR for murder cannot be anything less than “subjective foresight of death”
CHAPTER 6: TRIAL PROCESS
s.603: Accused may inspect and have copies of their statement, evidence, indictment (disclosure)
Stinchcombe:Crown has general duty to disclose whether inculpatory or exculpatory because purpose is to ensure justice is done, not to win / Crown can refuse to disclose for privilege / Crown can exercise discretion when to disclose to protect informers / Crown should err on side of disclosure when not sure about relevance / Initial disclosure should occur before accused must elect mode of trial / Crown’s discretion and privilege always reviewable by TJ
s.606:Plead guilty, not guilty, or special plea / Court must be satisfied plea is voluntary, accused understands plea, court is not bound by agreements between prosecution and accused / Court doesn’t need to fully comply with this procedure / Not guilty automatic plea if accused refuses to plead / Judge can adjourn trial to give accused more time
O’Connor: Bishop accused of SA in res schools, what must Crown disclose?
Majority: Records in Crown/police possession must be disclosed unless “clearly irrelevant”, without regard for privacy or confidentiality / Records in 3rd party hands (rape crisis center), accused can ignore s.7 and apply for subpoena to TJ can decide if “likely relevant” and balance interests of full defence v. privacy
Dissent: Use higher standards of “likely relevant” to release to judge and “significant probative value” to release to defence / Better protect privacy of victims / Don’t raise issues of credibility of victim
LLA: Court can override disclosure of privileged documents, and woman can contest up to SCC
Jaffe (USSC): Psychiatrists and social workers have absolute right to refuse disclosure to any court
Oslin: Victim raped, naked, pubic hair shaved, dumped on highway, and thearapist reports had self-blaming statements (“was it my fault?”)—court deemed relevant for defence of mistaken consent
Carosella: Rape crisis center shreds files if police get involved so don’t have to disclose / Court grants stay on proceeding because they would have granted disclosure / Accused didn’t need to prove that shredding actually prejudiced his case / Stay still available because irrepearble damage to integrity of justice system to charge him, and rape center is government funded so Charter applies. Minority: Duty of disclosure is owed by the state, not private third parties that just get funding / Refusal to disclose would need to result in an unfair, not just an imperfect trial
s.278.1: Records = reasonable expectation of privacy (not police records made for investigation)
Discussion: LHD dissent from O’Connor written into legislation s.278 / Much more privacy for SA victims / Only exception is record created by police for investigation / Privacy procedure applies to other Crown records / Apply for production / Hearing in camera / Judge order production for review / Review by judge / Judge order for production to accused / Judge record reasons
s.717: Diversion out of criminal procedure to alternative measures (circle sentencing) / If accused fully complies, other charges must be dropped / If doesn’t fully comply, at discretion of court / Accused must plead guilty / Must be voluntary / Balance interests of victim, society, accused / Sufficient evidence to prosecute / Statements in alternative measures cannot later be used in court
Hebbert: s.7 CCRF guarantees right to silence; Crown or judge cannot comment or draw inference
Morgentaler: Bad for lawyer to tell jury they can ignore the law / Juries do not explain themselves
Latimer: After conviction it was found that Crown helped RCMP put together jury against euthanasia, so retrial ordered because of “flagrant disregard for justice”
s.629: Crown or accused can challenge entire jury (array) on grounds that sheriff was partial, fraudulent, or showed willful misconduct when putting the jury together
s.638: Crown or accused can challenge specific juror for cause based on personal traits (unlimited)
s.634: Crown and accused have equal numbers of pre-emptor challenges that vary with charge
Biddle: Crown used all pre-empts and challenges to get all female jury for SA charge / Gonthier said jury could be perceived to be biased / McL and LHD said often have all male juries
Parks: Court allowed for first time to challenge jurors by asking about racial impartiality
Koh: Court took judicial notice of racism in Ontario communities, so can challenge without proving evidentiary basis of racism in community