Criminal LawFinal – 13’James Wegener
Table of Contents
Quantum and Burden of Proof 5
i. Presumption of Innocence 5
ii. Burden of Proof 6
Woolmington v. DPP (1935) UK HL 6
Exceptions 6
R. v. Oakes (1986) SCC 7
Three Standards of Proof 7
R. v. Lifchus [1997] SCC 8
R. v. Starr [2000] SCC 8
Actus Reus 9
i. Principle of Concurrence or Contemporaneity 9
Fagan v. Commissioner of Metropolitan Police (1969) UK CA 9
R. v. Miller (1982) UK CA 10
R. v. Cooper (1993) SCC 10
Summary of concurrence: 10
ii. Voluntariness 11
Kilbride v. Lake (1962) New Zealand SC 11
R. v. Ruzic (2001) SCC 11
Summary of Voluntariness 12
iii. Acts and Omissions 12
Three Categories of Legal Duty 12
Specific Omission Offences 13
General Omission Offences 13
R. v. Browne (1997) Ont. CA 14
R. v. Thornton (1993) SCC 15
iv. Consequences and Causation 15
Smithers v. the Queen (1978) SCC 16
R. v. Cribben (1998) Ont. C.A., 17
R. v. Harbottle (1993) SCC 18
R. v. Nette (2001) SCC 19
Mens Rea 20
i. Deciding on the Requisite Level of Mens Rea 21
ii. Subjective Mens Rea 21
R. v. Steane (1947) UK CA 21
R. v. Hibbert (1995) SCC 22
R. v. Buzzanga and Durocher (1979) Ont. CA 22
R. v. Sanregret (1985) SCC 23
R. v. Duong (1998) Ont. CA 24
R. v. Briscoe (2010) SCC 24
iii. Objective Forms of Mens Rea – Criminal and Penal Negligence 25
R. v. Tutton and Tutton (1989) SCC 25
R v Waite (1989) SCC 25
Hundal (1993) SCC 26
R. v. Creighton (1993) SCC 27
R. v. Beatty (2008) SCC 28
iv. Charter Considerations 29
R. v. Vaillancourt (1989 29
R. v. Martineau (1990) SCC 29
R. v. Finta (1994) SCC 30
vi. Absolute and Strict Liability 31
Beaver v. The Queen (1957) SCC 31
R. v. Pierce Fisheries Ltd. (1971) SCC 31
R. v. City of Sault Ste. Marie (1978) SCC 32
Re: B.C. Motor Vehicle Act Reference (1985) SCC 33
R. v. Wholesale Travel Group Inc. (1991) SCC 34
Participation in Crime 35
i. The law of parties 35
R. v. Thatcher (1987) SCC 35
R. v. Greyeyes (1997) SCC 36
Dunlop and Sylvester v. The Queen (1979) SCC 36
R. v. Jackson (2007) SCC 37
ii. Counseling 38
iii. Accessory After the Fact 39
Law of Homicide 39
i. Parameters of Homicide – s. 222 39
Infanticide 40
Faint Hope 40
ii. What is Manslaughter? 41
R. v. Creighton (1993) SCC 41
iii. Murder 42
R. v. Martineau (1990) SCC 44
R. v. Cooper (1993) SCC 44
iv. First and Second Degree Murder 45
R. v. Widdifield (. 1961 ) Ont. SC 45
R. v. Nygaard, (1989) 45
R. v. Collins (1989) Ont. CA 45
R. v. Russel (2001) SCC 46
Self Defence 47
R. v. Lavallée (1990) SCC 48
R. v. Pétel (1994) SCC 49
R. v. Malott (1998) SCC 50
R. v. Cinous (2002) SCC 51
Mental Disorder Defence 52
R. v. Whittle (1994) SCC 53
R. v. Cooper (1980) SCC 54
The Defence of Automatism 55
R. v. Rabey (1980) 55
R. v. Parks (1992) 56
R. v. Stone (1999) 57
The Defence of Intoxication 60
3 distinct kinds of intoxication defences: 60
D.P.P. v. Beard (1920) UK HL 61
R. v. George (1960 61
Leary v. The Queen (1978) SCC 62
Bernard v. The Queen (1988) SCC 63
R. v. Daviault (1994) SCC 63
R. v. Penno (1990) SCC 63
Section 33.1 64
R. v. King (1962) SCC 64
The Defence of Duress 65
Section 17 of the Code: ‘Compulsion by Threats’ 65
The defence of duress at common law: 66
Paquette v. The Queen (1977) SCC 66
R. v. Mena (1987) Ont. CA 67
R. v. Hibbert (1995) SCC 67
R. v. Ruzic (2001) SCC 68
Quantum and Burden of Proof
Two fundamental principles serve as the foundation for proof of guilt in our system of criminal justice:
i. Presumption of innocence; and
ii. Requirement for proof beyond a reasonable doubt
i. Presumption of Innocence
Sources
· deeply rooted in the common law.
· also found in section 6 of the Criminal Code.
· now embodied in s. 11(d) of the Charter:
6. (1) Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,
(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 of the offence; and
11 Any person charged with an offence has the righy
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Purpose – Oakes SCC
· We value individual liberty, freedom, dignity
· The consequences of being proven guilty are so grave that a not guilty person should not be subject to them
· The presumption of innocence is not normally rebutted unless or until the Crown proves the accused’s guilt “beyond a reasonable doubt”.
ii. Burden of Proof
An accused is presumed innocent unless “Proof of guilt” is established, which normally means proof of:
a) the elements of the offense charged (that is to say, the actus reus [the physical act] and the mens rea [mental elements]);
b) the absence of any lawful defense or justification that appears on the evidence (provocation, self-defense, necessity)
Woolmington v. DPP (1935) UK HL The Ordinary Rule
Facts:
X shot 17 y/o spouse, claiming it was accidental not intentional. Using a wire contraption in coat, he meant to discharge gun to scare her by shooting himself.
Issue:
· Once the Crown proves the elements, does the accused have to prove BARD that there is a lawful defense or justification?
· If the Crown proves X killed her, does X have to prove BARD that it wasn’t intentional?
Holding:
· No the burden nevers shifts to the accused. The crown has to prove BARD that it was not an accident, so there was no applicable defense.
o However, there is an evidentiary burden on accused for the basis of a defense
· “where intent is an ingredient of a crime there is no onus on the defendant proved the act alleged was accidental”
Exceptions
· Mental Disorder defence (s. 16)
o “burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.”
· Statutory exceptions: there are some reverse onus clauses in the Criminal Code
· Both instances violate s. 11(d) of the Charter, but they can be justified by s. 1 if it is deemed to be a reasonable limitation on the presumption of innocence
R. v. Oakes (1986) SCC
· The SCC concluded that s. 8 of the NCA “contains a reverse onus provision imposing a legal duty on the accused to prove on a balance of probabilities that he or she was not in possession of a narcotic for the purposes of trafficking. The accused attacked the validity of this reverse onus as a violation of s. 11(d) of the Charter.
· The Supreme Court held that the reverse onus was a violation of the presumption of innocence in s. 11(d) of the Charter and further held that this violation of the presumption of innocence was not saved by s. 1 of the Charter.
Three Standards of Proof
1. Proof beyond a reasonable doubt;
2. Proof on a balance of probabilities; and,
3. The requirement to point to “some evidence” (which is not really proving something)
Proof Beyond a Reasonable Doubt (BARD)
· Proof beyond a reasonable doubt is described in R. v. Lifchus and R. v. Starr [RBHS: 292-297].
· It does not require absolute certainty but it is much closer to absolute certainty than it is to a balance of probabilities: Starr (SCC, 2000) [RBHS: 295, para. 242]. (see next page)
Balance of Probabilities (B of P)
· Proof on a balance of probabilities means showing that it is more likely than not that a fact is true; sometimes described as a likelihood of 50% + 1.
The “Some Evidence” Standard
· The requirement to point to “some evidence” [“an air of reality”] is called an evidentiary burden.
o arises if the accused seeks to rely on a defence, once the Crown has met its burden
o put otherwise, Crown has no need to disprove a specific defence unless there is an air of reality to it.
R. v. Lifchus [1997] SCC
Holding:
· the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
· a reasonable doubt is not a doubt based upon sympathy or prejudice;
· rather, it is based upon reason and common sense;
· it is logically connected to the evidence or absence of evidence;
· it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
· more is required than proof that the accused is probably guilty a jury which concludes only that the accused is probably guilty must acquit.
R. v. Starr [2000] SCC
Holding:
The majority of the Court overturned the trial judge. [RBHS at p. 295] (Iacobucci J.)
“It is an exacting standard of proof rarely encountered in everyday life, and there is no universally intelligible illustration of the concept, such as the scales of justice with respect to the balance of probability.”
…
In my view, an effective way to define the reasonable doubt standard for juries to explain the default much closer to absolute certainty than to proof on a balance of probabilities. … It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards.
Actus Reus
Definition: “A physically voluntary act or omission.”
· each offence will set out the prohibited conduct.
· the description of the prohibited conduct in each offence must not be impermissibly vague or overly broad.
i. Principle of Concurrence or Contemporaneity
For an offence to be committed, the actus reus and the mens rea must coincide.
Fagan, Miller, Cooper.
Fagan v. Commissioner of Metropolitan Police (1969) UK CA
Facts:
· Police tells man to pull over, man drives on PO’s foot unintentionally.
· PO says, “Get off, you are on my foot!”
· A says: “F. You, you can wait.” The engine then stops.
· PO kept asking him to get off, A then says, “OK” and moves.
Issue:
· When did he intend to harm the police officer?
· Whether him not moving the car is sufficient AR for an assault.
What did the defence argue?
· The AR ends when he stopped the car
· Failing to get off is not the AR for assault; it is not action in itself
What did Crown argue?
· The AR ends when he drives off the officer’s foot
· At some point he had the intent (MR)
What did the Court hold?
· The MR occurred when the man told the officer he could wait (intent)
· The AR continued from the initial event through the following event
· The AR and MR are met as long as they coincide at some point
R. v. Miller (1982) UK CA
Man falls asleep with lit cigarette, wakes to see mattress smoldering, does nothing; moves to another room and sleeps. House burns down; he is charged with arson.
Issue:
- Did the AR and MR for arson coincide?
- Did the failure to act constitute AR?
Court:
- They do coincide because you have to look at the whole act together
- The failure to act is an adoption of the early unintended act
R. v. Cooper (1993) SCC
Man says that all he can remember is that he began to strangle wife then passed out with intoxication; she died 30 seconds to 2 minutes into strangling. Charged with murder.
Issue: did the MR and AR coincide here?
SCC: Cory J.
- When he grabbed the victim he intended to do harm and there was a likelihood it would cause death
- AR and MR do not have to be completely concurrent
- They only have to coincide “at some point”
- A series of acts may form part of the same transaction
Summary of concurrence:
(1) There must be concurrence between the actus reus and mens rea.
(2) mens rea need not coincide with actus reus the entire time; only at some point. (Cooper)
(3) Courts will treat separate acts and omissions as “one continous act or transaction”
Cooper, Meli, Fagan, and Miller.
ii. Voluntariness
Definition: “conscious control of action’ or action that is the ‘product of conscious choice”
Physical Involuntariness: Conscious and Unconscious
Lack of physical control may arise when a person is conscious or unconscious.
Examples of “involuntary” conduct where the accused is not conscious (or fully conscious) include:
(1) some severe forms of mental disorder such as psychomotor epilepsy
(Mental disorder defence)
(2) unconsciousness caused by voluntary or involuntary intoxication (intoxication defence)
(3) situations other than mental disorder or intoxication such as:
(a) sleepwalking [Parks]