Criminal Law 2010/2011 Nikos Harris

CRIMINAL LAW – 2010/2011 – NIKOS HARRIS

CHAPTER THREE: PROVING THE CRIME

The Charge and Elements of the Offence:

Charge: Who, when, where, what, contrary to what parts of CC.
Accused can only be convicted of the offence(s) charged in the indictment/information.
Actus reus:Prohibited act, omission or state of affairs. Criminal or regulatory. Crown may need to prove it was voluntary.
Mens rea: Required mental element of fault.

The Nature of Evidence

Facts are relevant if proof of that fact makes a proposition more likely than it would be if fact didn’t exist.
Difference between relevant and material (i.e. relevant with respect to matter that is an issue in the case).
Evidence can be direct or circumstantial (i.e. an inference must be drawn for it to be useful).

The Sequence of Events at Trial

No evidence motion: argue charge should be dismissed because Crown hasn’t satisfied evidential burden.
Argued by defence before they have to decide whether to present evidence
If accepted, judge should acquit the accused (must withdraw case from jury in a jury trial)
If no evidence motion is dismissed, defence must decide whether or not to call evidence.
Right to choose to not call evidence is a right given by s. 11(c) of Charter.
Judge’s charge to jury: explain the law and review the evidence. Explain the burden of proof rules.

Evidential Burdens

Jury trial: questions of law are for the judge, questions of fact are for the jury.
Test to determine whether evidential burden has been satisfied by Crown:
Is there any admissible evidence (on each element) upon which a reasonable jury, properly instructed, could convict? i.e., if the evidence were to be believed (BARD not necessary here), could it result in conviction?
Whether evidential burden is satisfied is question of law for judge  Accused can appeal on this point.
Burden of proof: beyond a reasonable doubt – highest standard because accused presumed innocent.
Accused’s Burden:
Reverse Onus Provisions: Dfhasultimate burden of proof (on balance of probabilities) initial evidential burden.
Statutory presumption: Some statutes cause accused to introduce evidence sufficient to raise a reasonable doubt.
Presumptions of fact: allow trier of fact to infer existence of fact A from proof of fact B (e.g. possession=you stole).
Defences: evidential burden is on accused to raise reasonable doubt in favour of accused. Some defences require balance of probabilities (e.g. NCRMD). Once the burden is satisfied, Crown must disprove the defence beyond a reasonable doubt.

CHAPTER ONE: SOURCES OF THE CRIMINAL LAW AND THE SUPREMACY OF THE CHARTER

Constitution Act, 1867 91(27) = Feds get criminal law. Provs get prisons 92(6), property/civil (13), prov courts (14), penalize (15).

Criminal Code, ss. 8, 9CC applies across Canada.

The Canadian Charter of Rights and FreedomsKey provisions: 1, 2, 7-15, 24, 32, 52 (reproduced in CC)

R v Sharpe – Balancing Charter Rights with the Criminal Law

Issue: Child porn – is the definition limitless? Is it immune from Charter protection because of its nature through s. 2(b)?

S. 163(1) made making, publishing distributing and possession of child porn illegal.
Criminalized visual and written materials, even if self-created, kept for yourself, or created by youth exploring IDs.
Issues: Too broad? Criminalization of innocents? Criminalizes thoughts? Degree of harm? Invasion of privacy?
No criminal law is immune from Charter scrutiny Balance them through the Oakes test.
Remedy to infringement of non-minimal impairment: read in that certain materials are acceptable in certain circumstances.

Oakes Test

1) Is the objective of sufficient importance to warrant overriding a constitutionally protected right or freedom?

Is it pressing and substantial?

2) Are the means chosen reasonably and demonstrably justified? This involves a proportionality test.

i. Are the measures adopted rationally connected to the objective?

ii. Do the means minimally impair the right?

iii. Is there proportionality between the effects of the measures and the objective? (Cost/benefit analysis)

CHAPTER THREE: PROVING THE CRIME

Charemski – Circumstantial Evidence

Facts: Manaccused of drowning wife in bathtub.No direct evidence.Evidence of opportunity, motive, and knowledge of crime.

No evidence motion (NEM) with circumstantial evidence: could one reasonable inference be that he is guilty?
Doesn’t have to be the only inference.
But at end of trial circumstantial evidence must show that the only reasonable inference is guilt of accused.
Must beno other rational explanation for thecircumstantial evidence except that accused committed the crime.

Result: Appeal denied, SCC agrees with CA that the case should have passed the no-evidence motion.

Lifchus – What is Beyond a Reasonable Doubt?

Judge’s charge to jury on standard of BARD: need to explain where the standard lies on the spectrum.
BARD is not: imaginary/frivolous doubt, intuition, vague thoughts, sympathy, prejudice, etc.
BARD is: reason and common sense, tied with onus of proof, extremely high but not unreasonably so.
“Probably” or “likely” guilty is insufficient - it does not have to be “absolute certainty” either but close to it.
Defence evidence: you don’t need to believe it but if it is reasonably possible then you must acquit.
Burden of proof is always on the prosecution.
Beyond a reasonable doubt is NOT the same as “moral certainty.”

Starr –Beyond a Reasonable Doubt – Where is it on the spectrum?

Judge must be clear that BARD is not the same as balance of probabilities but is not absolutecertainty.
However, it is closer to absolute certainty than it is probable.
Judge must define BARD in the charge – higher than probability standard.

Kyllo– Reliability and Credibility of Evidence - Witnesses

Facts: Arcade robbery, dirty boots, buying drugs with bags of quarters, gum in trash can.

Non-credible witness: criminal past, drug problems, possible ulterior motive
Must be very careful, cannot believe such a witness without corroborating evidence.
Unreliable witness: past blows to head, drug use, felt threatened by police.
Vetrovec Warning: judge has discretion to warn jury about risks of accepting testimony of unsavoury witnesses.
Ways to judge testimony: confirmation by independent evidence, specificity of statement, level of detail, if statement leads to discovery of evidence known only to perpetrator, degree of informer’s access to outside information, general character of informer, informer’s request for special benefits/promises, past history of giving reliable information, whether informer made records of accused’s statement, circumstances informer’s report was taken, manner in which report was taken by police, any other known evidence that may alter credibility of informer (e.g. relationship between informer and accused).

C.W.H. – Accused or Witness: Who to Believe?

Facts: Grandfather accused of molesting his granddaughter. Trial judge said you must believe either her or him.

Even if you completelyreject accused’s evidence, you still must be satisfied beyond a reasonable doubt as to the guilt of the accused before a conviction can be entered.
Simply believing one person more than another is not enough to convict.
If you cannot decide who to believe, you must acquit.
As long as accused’s story raises a reasonable doubt, you must acquit.

Morin – Applying BARD to Evidence

Reasonable doubt standard does NOT apply to individual pieces of evidence – only to evidence as a whole.
Look at the whole body of evidence to determine if elements are proved BARD.

Proving mens rea

Mens rea can be approached circumstantially: motive evidence, logic, circumstances.
Crown is required to prove BARD that the accused intended to cause the consequences of the conduct and that he or she knew the circumstances that made the conduct criminal.
Two sources of evidenceregarding intention:

1)Accused’s testimony, confession or statement to police.

2)Infer accused’s intention by looking at his actions and determining what must have been in his mind.

General rule: assume that people intend the natural and probable consequences of their actions.

Appleby and Proudlock –Legal and Evidentiary Presumptions

Leading cases on legal and evidentiary presumptions prior to the Charter:

Appleby: Legalpresumptions require the accused to disprove the presumed fact on a balance of probabilities.
Proudlock: when dealing with an evidentiary burden, accused must point to evidence which is capable of raising a reasonable doubt.

Application of the Presumption of Innocence to Issues other than Elements of Offences

Reverse onus of proof offences:

If Crown proves certain facts, it isassumed that another fact is true. The burden is then on defence to disprove that fact.
“In absence of evidence to the contrary” – must raise a reasonable doubt
“Unless accused establishes that he or she did not” – balance of probabilities
Reverse onus cases violate the presumption of innocence.
Use the Oakestest to determine if it is a permissive presumption.
Permissive presumption= if X you may infer Y.
Mandatory presumption = if X you must infer Y (Charter issues here).
Reverse onus of proof often based on the difficulty for society to see what is in your mind and private life.
The accused has access to that information and can testify towards it.
If an accused must prove something on BoP to be found not guilty, provision violates presumption of innocence.

Downey – Infringement of s. 11(d)

Facts: Accused charged with living off the avails of prostitution.

If found to be living with or habitually in the company of a prostitute, must prove you are not living off the avails.
Provision requires that you must raise a reasonable doubt to rebut the presumption.
Presumption of innocence violated (s. 11(d)) so s. 1 analysis must occur.
Apply Oakes testthe provision passes because all you must do is point to evidence raising a reasonable doubt.
It does not require accused to testify himself.
Protection of vulnerable prostitutes and prosecution of pimps is an important societal issue.
To determine if there has been infringement of s. 11(d), it must be decided whether the presumption under attack could lead to the result that an accused person would be found guilty even though a reasonable doubt existed as to that guilt.
Thishappens when accused has to prove something on balance ofprobabilities (i.e. “establish” it)

Laba – RationalConnection test from Oakes, Reverse Onus

Facts: Df charged w/illegally selling precious metals under CC and challenged validity of it for violating presumption of innocence.

Modifies the rational connection test, showing that reading out the unconstitutional part is a possible remedy.
No general requirement that a presumption be internally rational to pass rational connection stage of proportionality test.
Only relevant consideration isif presumption is a logical method of accomplishing legislative objective.
Minimal impairment and proportionality of Oakesnot met due to excessive invasion of presumption of innocence, lack of balance between impairment/rights violation and advancement of the provision’s purpose.
This statute required that the defendant prove on balance of probabilities that the metal wasn’t stolen.
It is justified that accused must prove to some extent that it was not stolen.
Remedy: read out “unless he establishes that”, read in “in the absence of evidence which raises a reasonable doubt”.

CHAPTER FOUR: THE ELEMENTS OF AN OFFENCE

Structure for Analysis of Actus Reus

Actus reus consists of:

1)Conduct – voluntary act or omission (required for all offences)

Must be voluntary act or omission directed by the conscious mind of the accused.

2)Relevant circumstances (all offences)

This is what makes the conduct criminal.
Can include positive and negative (e.g. absence of justification or excuse) elements.

3)Consequence or result (some offences)

Specific consequences aren’t always required but some crimes have them in their definitions.
This makes them part of the actus reus and therefore the Crown must prove them.
Causation is an issue here  Must be proved that accused caused the prohibited result with their prohibited conduct in the relevant circumstances.
Common example: Do X with the purpose of Y.

Structure for Analysis of Mens Rea

General rule: mens rea is a required element of “true crimes” but not public welfare or regulatory offences.
Subjective mens rea: The accused’s actual state of mind, personal fault.
Objective mens rea: what the accused, as a reasonable person, ought to have had in mind.
General rule for statutes silent on mens rea: proof of intent, knowledge (incl. willful blindness) or recklessness.
General mens rea requirements for the actus reus:

1)Conduct: must be voluntary, i.e. directed by the accused’s conscious mind.

2)Heknew of the circumstances, was willfully blind as to their existence or was reckless as to their existence.

3)He intended the consequence, was substantially certain it would occur, was willfully blind or reckless to its occurrence.

The following are NOT true mens rea: negligence, strict liability, absolute liability
Two types of intent: general (to do the act) and specific (subjective foresight of the consequences of the act)

Concurrence of Mens Rea and Actus Reus

Basic principle: where mens rea is required, it must concur in point of time with the actus reussingle transaction rule.
However, minor variations between accused’s plan and execution will not prevent a finding of guilt.

R. v. Clark 2005 1 S.C.R. 6– Statutory Interpretation

Facts: Guy who is having a romantic evening with his right hand, blinds open, neighbor is a peeping pervert.

Provision requires the person willfully does an indecent act either (a) in a public place in presence of other people or (b) in any place with the intention to insult or offend any person.
(b) has the extra specificmens rea requirement - intent to insult or offend by doing the conduct
therefore (b) has implicit assumption that there is knowledge people are watching
Trial court ruled Clark didn’t know people were watching so only (a) in question: was his house a public place?
Public place: he was in his house but could be seen from outside  doesn’t count as public so he is not guilty.

III. ELEMENTS OF THE OFFENCE: ILLUSTRATIVE CASES

Kirkam–“Wilfully” and Double Intent

Facts: Prosecutor gets RCMP to survey jurors, tried to cover it up by excluding surveyed jurors. He didn’t tell judge or df counsel.

“Everyone who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice”– not specific.
“Wilfully” means that the conduct must be deliberateand it was intended to defeat the course of justice.
Two types of intent: general (to do the act) and specific (subjective foresight of the consequences of the act)
This is known as double intent
Judge finds that Kirkham had general but not specific intent – mens rea here was subjective not guilty.
You can use logical inferences to determine if the person did the conduct with intention of the consequences.

Felawka – Double Intent

Facts: Guy takes rifle on Skytrain wrapped up in jacket, jokes he’s going to kill people  Charged with carrying concealed weapon.

Issue: is there a secondary mens rea that the gun is being concealed for a sinister purpose?

Elements: (1) Carrying (2) a weapon (3) and concealing it. Must it be for unlawful purpose or is just concealing enough?
Must consider the aim or object of the section – to fill its aim, requisite intent or mental element should be that the accused intended to hide from others an object he knew to be a weapon  i.e. general intent, not specific.
To prevent conflict with provincial gun laws, judge decides that guns tied in canvas or in cases aren’t concealed.
Judge decides that evil intent isn’t necessary for this offence – mental element is that he intended to conceal it.
Must charge everyone for the greatest good – can’t have people wandering around w/concealed weapons.

INCLUDED OFFENCES

General rule: accused can only be convicted of offence with which he is charged EXCEPT “included” offences.

CC can specify included offences or you look to s. 662(1) of the CC which gives these 3 ways:

1)“as described in the enactment creating it” – for offences that are necessarily committed in the commission of the offence charged (e.g. assault is part of assault causing bodily harm) – it is a necessary step

2)“as charged in the count” – depends on how Crown drafts the charge (e.g. “attempt to murder by stabbing” includes assault through the mention of stabbing)

3)“an attempt to commit” the charged offence – it is always included through s. 662(1)(b)

You must also consider the case law to determine if section has been interpreted to include other offences.

CHAPTER FIVE: THE REQUIRED ACT OR OMISSION: ACTUS REUS

Terrence - Control

Facts: Kid riding in car finds out that car is stolen when cops come but didn’t know before. Charged with possession of stolen goods.

Judge decides that there must be an element of control, which Terrence did not have – therefore not guilty.

Canadian Charter of Rights and Freedoms, s.11(g)

Gives right to not be found guilty of any act or omission unless it was an offence at the time.

Parliament can make omission a crime or statutes are set up generally so failing to act is a crime Moore, Kirkam.

Fagan v. Commissioner of Metropolitan Police–Omissions, Concurrency

Facts: Guy who drives the car onto the cop’s foot unknowingly then refuses to move the car for a bit once he knows.

Judge finds that a mere omission cannot be an assault.
Mensrea can be superimposed on an existing act.
Fagan became guilty when helater became aware and refuses to alter his actions.

Cooper – Concurrency

Facts: Guy who is super wasted and chokes his girlfriend to death, blacked out while in the act of choking her. Was there intent?

Concurrency: it is the intent of the accused that makes the wrongful act illegal, causes blameworthiness.
Simultaneous principle: mens rea must be concurrent with impugned act OR superimposed on an existing act.
Innocent acts become criminal when accused acquires knowledge of nature of act and refuses to change course.
Single transactionNot necessary for mens rea to continue through commission of act – just must coincide at a point.

Moore – Duty to ID yourself, Omissions

Facts: Cop asks guy for his name, he doesn’t give it.Charge: “unlawfully willfully obstructed Officer… in execution of his duty”.

Judge finds it was cop’s duty to get Moore’s name sorefusing to tell cop counted as obstructing.
Dissent: Omission can’t be criminal, right to remain silent, no CL duty to ID yourself, duties must be express in statute.
Fact that cop has duty to ID someone is not the same as that person having a duty to ID himself.

Dunlop and Sylvester – Mere Presence