1
Criminal Law – Winter 2004
Professor: Patrick Healy
Notes: Laurence Bich-Carrière
Table of Contents.
A. Introduction
I. Aspects of Criminal Liability
II. Limitations of Criminal Law.
1. Offences in the Criminal Code [casebook p. 323].
2. The Actus Reus (AR)
III. Sources of the Criminal Law.
1. A bit of history…
1. 1. One Criminal Law for All of Canada
1. 2. But What is Criminal Law?
2. Today's sources.
2.1. The Canadian Charter of Rights and Freedoms.
2. 2. Statutory Law: the Criminal Code and more!
2. 3. Common law.
B. Basic principles.
I. The Principle of Legality.
1. Principles as such.
2. Legitimate Limits.
II. Presumption of innocence.
1. General Statements
2. Leading Case: Woolmington
Woolmington v. D.P.P. [1935] A.C. 462 (UK) [C. 261]
3. What is Reasonable Doubt?
3. A Trial: Procedure and Evidence
C. Elements of guilt.
I. Conduct: the Actus Reus.
1. Introduction.
2. Acts, omissions and states of being: voluntariness.
2. 1. Voluntariness: introduction
2. 2. Assessing Contemporaneity
2. 2. 1. Dealing with acts, continuing acts and omissions
Fagan v. Commissioner of Metropolitan Police [1969] 1 Q.B. 439 (UK) [C. 292]
R v. Miller [1982] 2 All E.R. 386 (UK) [C. 295]
2. 2. 2. Omission + Duty of Care = Offence = Sanction
Moore v. the Queen [1979] 1 SCR 195 [C. 301]
R. v. Thornton [1991] 3 CR (4th) 381 (Ontario CA) [C. 307]
2. 4. States of being
2. 4. 1. Status Offences
2. 4. 2. Possession
R. v. Terrence [1983] 1 SCR 357 [C. 317]
2. 5. Circumstances [C. 322]
3. Causation.
3. 1. A (rare) question of fact
3. 2. What is the standard of causation?
Smithers v. the Queen [1978] 1 SCR 506 [C. 327]
R. v. Cribbin [1994] 89 CCC (3d) 67 (Ont. C.A.)
R. v. Nette [2001] 158 CCC (3d) 486 (S.C.C.)
D. Fault
I. Fault and Criminal Law: No Fault
1. Introduction.
2. The Constitutional Sources of Penal Liability (not just criminal)
3. The Emergence of Strict Liability in Criminal Law
3.1. The Law Before Sault Ste.Marie
3. 2. Sault Ste.Marie: The Recognition of Strict Liability
R. v. City of Sault Ste. Marie (1978), 40 CCC (2d) 353 (SCC) [C. 384]
4. And then Charter kicks in.
4. 1. Can a prison term be associated with absolute liability?
Reference re Section 94(2) of the BC Motor Vehicle Act (1985) 23 CCC (3d) 289 [C. 390]
4. 2. Can a prison term be associated with strict liability?
R. v. Wholesale Travel Group (1991) 67 CCC (3d) 193 (SCC) [C. 403]
II. Faults of the mens reas
1. Introduction.
2. Intention and knowledge [C. 419 to 444]
2. 1. Intention and motive
R. v. Steane [1947] 1 KB 997 (UK) [C. 422]
2. 2. Desire and Wilful Blindness
R. v. Buzzanga and Durocher (1979) 49 CCC (2d) 369 (Ont. C.A.) [C. 418, 430]
2. 3. Subjective knowledge and recklessness
R. v. Théroux (1993) 79 CCC (3d) 449 (SCC) [C. 438]
3. Recklessness and wilful blindness.
R. v. Sansregret (1985) 18 CCC (3d) 223 (SCC) [C. 444]
R. v. Duong (1998) 124 CCC (3d) 392 (SCC) [C. 447] not really discussed in class
R. v. Cooper (1993) 124 CCC (3d) 392 (Ont. C.A.) [C. 450] not really discussed in class
III. Criminal Negligence [C. 454 to 474]
1. Opening questions
2. History
R. v. Tutton and Tutton (1989) 48 CCC (3d) 129 (SCC) [C. 454]
R. v. Creighton (1993) 83 CCC (3d) 346 (SCC) [C. 463]
IV. Constructive Liability and Constitutional Aspects of Fault
1. Illustrations of the principle.
2. Cases
Vaillancourt v. The Queen (1987) 39 CCC (3d) 118 (SCC) [C. 709]
R. v. Martineau (1990) 58 CCC (3d) 353 (SCC) [C. 717]
3. Extension of the principle?
V. Sexual assault [C. 637-690]
1. Introduction
2. The structure of the provisions dealing with sexual assault: History
2. 1. Evidentiary changes: Can you get the records of the complainant?
2. 2. With regard to the substance of sexual assault
R. v. Chase [1987] 2 SCR 293 [C. 638]
3. The MensRea for Sexual Assault
3. 1. Consent
3. 2. Mistaken belief and the "air of reality"
Pappajohn v.The Queen (1980) 52 CCC (2d) 481 (SCC) [C. 639]
E. Aspects of Innocence.
I. General Introduction: What Is A Defence?
1. What is a defence?
2. The requirements of proof
3. An area of the law that cries for legislation.
II. Automatism and Mental Disorders
1. Mental Disorder (s. 16 Cc)
2. Automatism
2. 1. Insane Automatism
2. 2. Non-insane Automatism
2. 2. 1. Non-insane automatism before Stone:
Rabey v.The Queen [1980] 2 SCR 513 [C. 817] discussed but not read
R. v. Parks (1992) 75 CCC 287 [C. 834] discussed but not read
R. v. Stone [1999] 2 SCR 290 [C. 837]
III. Intoxication [C. 887 to 919]
1. Introduction
2. 20th-Century Evolution of the Intoxication
2. 1. Beard and the general/specific intent dichotomy
R. v. George (1960), 128 CCC 289 (SCC) [C. 897] not covered in class
2. 2. Absence of intent/Incapacity to form intent
R. v. Robinson [1996] 1 SCR 683 [C. 891] not covered in class
2. 3. Is this specific/general intent division nonsense?
Bernard v. The Queen (1988), 45 CCC (3d) 1 (SCC) [C. 901]
3. As Announced: The Tremendous Change of Daviault
3. 1. The Reasoning
R. v. Daviault (1994), 93 CCC (3d) 21 (SCC) [C. 912]
3. 2. Problems with Daviault.
3. 3. Parliament, Daviault, principles and policy.
IV. Self-Defence and Domestic Violence [C. 969 to 1014]
1. How Lavallée changed the law.
1. 1. Introduction
R. v. Lavallée (1990), 55 CCC (3d) 97 (SCC) [C. 993]
1. 2. As Crown/Defence what would you do?
2. Of Affirmatives Defences in General.
R. v. Cinnous (2002), 162 CCC (3d) 129 (SCC) [C. 986]
V. Duress and Necessity
1. Duress [C. 945-968]
Hibbert v. the Queen (1995) 99 CCC (3d) 193 (SCC) [C. 426] not to read, not really seen in class
2. Necessity [C. 921 to 944]
Perka v. The Queen (1984) 14 CCC (3d) 385 SCC [C. 927]
3. Self-Defence, Duress and necessity
3.1. Duress and necessity
R. v. Ruzic [2001] 1 SCR 687 [C. 958]
3. 2. Adding self-defence and the table's complete.
4. Concluding remarks somewhat related to the subject.
–1–
1
Quote / A. IntroductionI. Aspects of Criminal Liability
Bunch of *concepts* to be discussed during the term:
Substantive crim law. Liability. Offences & Defences. Validity of crimlaw, means by which offences are assessed. Aspects of trial. Corporate criminal law.
Cc doesn't contain all offences and lacks quite a few defences. Should be updated[i].
"[It] lies in the field of conflicting values," said Dickson CJ. about strict liability, but it could apply very well to all of criminal law.
Why is crimlaw only federal[ii], whereas provinces can still create offences? Example of gambling that's evil unless there's a provincial license... Abortion… Prostitution and solicitation. Examples. Paradoxes.
Purposes. Elements of morality. Economic considerations. Utility.
What is the difference between recklessness and intention, an idea of negligence and fault, carelessness?
Question of the subjective mental state, reflected in the choice the person made of acting in the way s/he did. Ex. Todd Bertuzzi.
What is the valid use of crim law? Legitimate use of the crim sanction. What is the appropriate angle? What do we expect? Ingredients of liability? Legislator and its powers? Place of fault? Defences to allegations of crim liability.
As a lawyer
Disc.
PoL
p. 37
PoL
Recap / II. Limitations of Criminal Law.
1. Offences in the Criminal Code [casebook p. 323].
It is there to see how the offences should be controlled by the legislature. In addition to policy argument as to what criminal law should contain, there are problems as to definitions. Upon getting a case, one should check the wording of the offence (the syntax can give you the limits or the conditions of guilt).What exactly does a given offence refer to in order to capture the objective legitimately set by Parliament?Example.
Arson[iii] [325]. The many suboffences might mean even if there's an overall spirit with common features incrusted in every article, there are also slight differences. For example, arson: fire on property intentional[iv] (or reckless), and there has to be damage to property or bodily harm.
Note that the structure itself marks the limits of the behaviour.
Element of causation is needed.
433 (a) says there can be an intention (recklessness) and no harm, but (b) says there can be no intention [no requirement] but if there's harm as a result, there is an offence. (b) is liability for causing the result (it involves the principle of constructive liability[v]), whereas (a)
434.1 You can't blow up your property if it seriously threatens others (seriousness, of course, always being a borderline concept).
436. If by tort you blown something up, you're liable. Marked departure from the standard of the RP. The definition of negligence (s. 2(19) of the Cc) in criminal law involves a marked departure (and not a mere departure, as in the tort of negligence). It's you own property or a property you control (wheter a tenant, a contractor).
The element of fault is present in both cases but it differs. In 433, there is an intention (or recklessness), but not in 436. However, the conduct is "wrong" (thus, an element of fault). So actus reus involves a conduct and some sort of fault, whether a mental state or a marked departure from the RP.
Intention and recklessness both include an element of choice. Negligence refers more to an objective element of conduct.
Also, syntax-wise, the articles determine the conditions of guilt.
Point being: every criminal offence is a statement in matters of determining the principles and the limits, the ingredients of particular offence are.
2. The Actus Reus(AR)
Overall, in all these offences, we find a certain vagueness (or rather a general realm that can capture many things). There is also always a sort of "bad" result (bodily harm, destruction of property, serious threat), a cause can be linked to someone and his conduct (actus reus[vi]).The actusreus can be:
- The basic act, whether positive or negative; the conduct: can it be the status now (anyone who is illegally in Canada sees his status become a conduct; if there is something in someone else's car you are drive, you can both be "possessing" the firearm).
- The element of causation
- The result.
Self-defence (or pregnant woman going into labour in your car): intention is there, but it's in a given context which justifies the otherwise wrong conduct. But there must be beacons, defending your life with self-defence is not the same as killing to preserve your property (for instance).
Coercion (duress, pressure) is also a matter (if I hadn't brought these drugs in Canada, I would have been killed).
Point being: in every definition of criminal liability, there is a number of variables: a conduct, a fault.
The question of public policy are also always to be borne in mind. In common law, intoxication is not a defence for assault because it is a general offence and not a specific offence (e.g. intent to kill). The SCC said that you cannot convict a morally innocent person. Consequently the hocus-pocus of common law doesn't mean anything anymore. So the SCC n 1990 said that intoxication could work for general offences: put bluntly, drugs can get you protected because of the Charter[vii].
Recap. The element of conduct, that is the voluntary behaviour on part of the accused coupled with a certain result (thus causation where it is prohibited), is a very complex issue. very complex element.
- Fault. It is an element that can be constituted by a culpable mental state or, in certain cases, an element of negligence.
- So conduct + fault = guilt, unless there is an element of defence or excuse (which, of course, has to be adequate).
When is it appropriate or legitimate for there to be negligence (and how is it to be defined) to be the standard? Can some criminal offences include no element of fault?How is the construction of a criminal offence justified?
History
Quote
p. 18.
CCRF
ss. 7 to 14
s. 7
p. 18
p. 31
Hist.
Recap / III. Sources of the Criminal Law.
1. A bit of history…
1. 1. One Criminal Law for All of Canada
Historically, the Quebec Act (1774) decided that the common law of England would apply in what was to become Canada. The Confederation brought up the question of the organisation of criminal law. John A. MacDonald decided it would be a federal matter[viii], so it would be uniform nation-wide. However, the provinces have the ability to set up the machinery of Justic (and prisons for up to two years minus one day), but Parliament decides of the offences (and administrates the penitentiary, two years and above).1. 2. But What is Criminal Law?
The Constitution allocates Parliament the jurisdiction over criminal law (s. 91.27 CL67). But what is criminal law anyhow? How can criminal law be distinguished from the rest (penal law, mostly)? In penal law, there is a prohibited conduct and this conduct can bring a penalty. This applies to murder as well as to breaches of the Highway Traffic Act, of provincial jurisdiction. So penal law is wide, but the Constitution (s. 91 and 92) obliges us to make the difference between criminal law and non-criminal law. Is criminal law only a mask to take away provincial jurisdiction? In the mid-20th century, Lord Atkin said: "criminal law means prohibition with a sanction" attached. We have seen this is not enough. In the Margarine Reference in the 50s, it was said criminal law was concerned with public safety and so on. Subsequently, the SCC did discuss it, but did not reach a decision as to, for constitutional purposes, criminal law is. .Eg. In the mid-80s, Parliament enacted anti-tobacco legislation. The SCC found it valid in part because it felt under criminal law: was this really criminal law?
So, there is a notion of penal liability, which has a real meaning in the constitution set-up, provinces can create penal offences on property, f. ex. (92.15 CL67). p. 18.
2. Today's sources.
2.1. The Canadian Charter of Rights and Freedoms.
Another side (the dark side, shall we say) is the Charter: ss. 8 to 12 are the truly relevant provisions: they are concerned with "adjectival" law, i.e. matters of procedure and evidence. Legal rights are as follows:- s.7: Life, liberty and security of person (in accordance with principles of fundamental justice)
- s. 8:All searches or seizures must be reasonble
- s. 9:no arbitrary detention or imprisonment
- s. 10: when arrested or put in detention you have the right to (a) be informed (b) silence (c) habeas corpus.
- s. 11:proceedings in criminal and penal matters
- s. 12: no cruel or unusual treatment or punishment
- s. 13: no self-incrimination (except perjury)
- s. 14: right to an interpreter
It is this power that was self-given to the Courts that made them say you couldn't commit murder without the intent to do so (it'd be against fundamental justice). As an illustration of this, came the cases of Vaillancourt and Martineau (p. 31), about constructive murder: applying the conclusion of the BC Motor Vehicle Reference, someone argued constructive murder made no sense for there was no intent to kill. The SCC said: that's right.
But then people started looking at all that could be struck down, but except felony murders, there have been very few instances. So s. 7 is not the runaway engine some thought it'd be.
This doesn't mean s.7 was rendered useless: it was used in other circumstances. Take duress and intoxication, it is always there.
2. 2. Statutory Law: the Criminal Code and more!
While the Constitution is the first source, first as in supreme, there is afterwards statutory law. What does it include? First, the Criminal Code, though it doesn't contain everything (it is a corruption of the civilian idea of a code containing virtually everything). There are also scattered statutes all over federalia (think Income Tax, Customs, Bankruptcy Act). The Criminal Code is the consolidation of the traditional core of criminal law: offences against the Crown, the person, property, etc.2. 3. Common law.
The criminal law that came from the UK came mostly with common law. It is still the case for most part of the English criminal law (there is a common law murder, for instance). In Canada, there was somewhat of a necessity to clean up common law on crimes, that came with the Confederation (because the common law wasn't the same anywhere and MacDonald thought there had to be a consensus on criminal law). Between 1867 and 1892 a few attempts were made to make the criminal law thorough, but nothing as ambitious as the Act of 1892.In the 50s, however, there was a vent nouveau which led to today's Code (even if there have been thousands of amendments, the structure and the outline remain the same).
This doesn't mean the common law was completely displaced: while in Canada, there are no more common law crime, the history remains relevant. While it prohibits new common law offences, the Code preserve the ability for the Courts to find common law defences (necessity, for instance, Dudley v. Stevens sailors on the open see who ate the sailor boy to stay alive: the SCC only answer this in 1994 in Perka where is was said necessity exists, but no it the Perka case). There is also the defence of entrapment: not an acquittal but a stay of proceedings. Entrapment on part of public authority, Courts decided, is sufficient to bar culpability.
Finally, even if you have some sort of statutory definition of defence, common law can be invoked to modify the scope of the statute. It is problematic mostly as to duress and self-defence.
Recap.
- Whereas ss. 8 to 14 are more procedural, s. 7 of the Charter encompasses the very broad principles of fundamental justice, thus enabling the Court to review virtually anything Parliament has enacted.
- Statute-wise, the main source for the description of offences is the Criminal Code, but it's just a big statute because other offences are scattered throughout other statutes.
- Finally, common law offences have been repealed (and when relevant included in the Criminal Code) but defences remain (which could be problematic where the common law and the statutory defence don't coincide).
Pple
Illus.
Limits
Recap / B. Basic principles.
I. The Principle of Legality.
1. Principles as such.
The basics proceedings attached to all criminal offences are found in the principle of legality. It applies to all criminal offences, though it too has evolved over the years. It states that nothing can be considered a crime unless it was a crime at the time it was committed (no retroaction on the definition of crimes[ix]).Also, whatever the definition of criminal liability is it must be sufficiently clearso one can now what his offence is.It doesn't mean all the citizens are supposed to know the extent of the law (though ignorance of the law is no defence), it means the definition has to be made in terms that are clear, definite, not vague or too broad.
In Nova Scotia Pharmaceuticals, the Court was asked to see if it the offence of lessening competition unduly was incompatible with the principle of legality. The SCC stated that the principle dealt with vagueness (not clear as to what is wrong) and overbreadth (reaching too far). One can lead to the other, but in the Marijuana Case, there was overbreadth, not vagueness.
In Heywood [C. 27] previously convicted for a sexual offence was, by law, prohibited from being in a park. He was found there, obviously taking inappropriate pictures. The Court stated that the overbreadth must be judges in relation with the object of the legislation. Does the legislation overshoot the legitimacy of its purposes? But does park mean only municipal parks or also natural parks, say, in Banff? In this case, the reach is extreme.
Of course, the overreach is not always geographical; it could also mean reaching too many people or a period of time that's too long. In Nova Scotia, Gonthier J. described a principle. However, in Heywood (and others), he dissents from the majority on the application of the principle he himself set. Does this mean the principle of legality is vague (how ironical)? But it doesn’t take away from the importance of the principle itself and its three components.
There is yet another principle, not always used, but sometimes, yes. It is the principle of strict construction, that is, if a question of interpretation arises, the more favourable one shall be preferred (because the power of the State could go against the liberty and freedom of an individual). This is part of a larger, yet rather undiscussed, principle: the State must define the terms of the liability that can be imposed upon an individual as precisely as possible. Decided in the 14th-century Parlington???case (a taxation matter).
2. Legitimate Limits.
Architecture of the criminal law: what are the legitimate limits of criminal law? How should the fundamental values of a given society be included to the law? Think prostitution, pornography, simple possession of marijuana, hate speech. So, what is the legitimate use of criminal law? Can the Constitution help?The Malmo-Levinecase raised the question of there being a legitimate use of criminal law only if Parliament could identify direct harm made to others flowing from the breach of the prohibition (aka the Harm principle).
In Zundeland the other (Keergstra), some fundamental questions about the freedom of expression where asked. Was the kind of speech they used protected by the Charter? Yes, for virtually all forms of speech are protected[x]. This is where s. 1 kicks in. Think CHOI-FM.
Recap. The principles of legality can be summarised as follows:
- Criminal law is not retroactive: what is considered a crime has to be considered a crime at the moment it was committed.
- A criminal offence must be understandable in its scope, that is, it cannot be vague or overreaching (Nova Scotia Pharmaceuticals).
- Of two equally plausible interpretations, Courts should favour the one that is less restrictive of the people (because the power of the State is to infringe on the liberty of individuals).
- The Harm Principle:criminal law can be used only is Parliament can identify a direct harm made to others flowing from the breach of the prohibition (Malmo-Levine; Caine).
CASE
Quote
Charter
ItoJ
Recap
P&E / II. Presumption of innocence.
1. General Statements