Criminal Law Final (Lawrence)

CRIMINAL LAW FINAL (LAWRENCE)

JURIES

Rationale

State actors can be seen as overzealous, legitimizing to have public engagement
Criticisms: misapplication of the law, arbitrary decision makers, can use information outside the trial
s.11(f): does not include the right to not be tried by jury

When can you have a jury trial?

Must be in the superior court, most indictable offences unless completely in provincial jurisdiction
Can be mandated under s.473
S.495 offences: have jury trials unless crown and accused agree to have judge only

Unanimity

If the decision is not unanimous, then no verdict is rendered new trial
BUT the judge cannot instruct jurors that they must agree, they are entitled to not agree if they conscientiously not share the views of others. The judge can encourage unanimity, but it cannot cross the line to coercion
Issacc: the judge made comments about the expense and inconvenience of a new trial
The jurors must be unanimous in verdict, not in facts
Thatcher: the jury agreed that he had something to do with the murder, but disagreed as to whether he killed him or hired someone to kill him

Who are jurors?

In Canada: 12 people, trial will continue if some are lost on the way to a min. of 10
Under the Juror’s act, under administration of justice (provincial)
Must be Canadian citizens (held to not offend s.7), Residents of the province, age of majority (up to 65)
Not allowed: MP’s judges, lawyers, court staff, anyone currently charged with an offence, anyone convicted of an offence in the past five years (2000 or 1 year +), no one who is illiterate, blind, deaf or physically infirm, can’t speak the language. In BC: physically disabled can be excluded.
Are paid 20$/day for first 20 days, then 60…then 100 after 140 days
Sheriff’s office issues list, randomly selected, if there is irregularity ect whole list is excluded.
S.15 of the charter has been used to say that the accused cannot demand that the jury be the same race
Once selected, they can be excluded through questioning

Jurors may be challenged by:

a. Pre-emptory challenges

No reasons given
20 for 1st degree, 12 for others punishable for 5+, 4 for less than 5 years
used to have “stand aside provisions” but they violated s.11(d) for impartiality and it created the appearance it would be favourable to the crown (Bain)
Pizzacala: all female jury for a sex assault case, crown used 23 stand asides to exclude men. NEW trial ordered
Biddle: same situation, but defence tried to exclude females. The jury stood because the case was about identification rather than an issue of consent and the majority held that representation is not essential and woman can’t be assumed to be impartial. It left open the question of applying s.15 to gender. [was a dissent who disagreed]

b. Challenge for cause

No limits for advancements, however there are only two reasons to advance them:

Not qualified
Not impartial (but they have little information about the individuals to base this on, ex name address occupation so these are generally stereotypical assumptions)
Further questions must be approved by the trial judge

Cannot challenge on the nature of the offence (Find), as someone’s views on the type of crime should not be assumed to translate into hostility towards the accused. However, jurors who would find the nature of the crime too difficult can ask to be excused

R v Parks ONCA 1993

Facts/Issues / Accused wished to ask jurors if they could judge witnesses (black drug dealers) with out bias ect. The trial judge disallowed the questions, and the accused appealed upon conviction.
Held / The questions seek to prevent bias: the presumption that jurors will perform their duty according to their oath must be balanced with the threat of a verdict tainted by racial bias.
But: where there is a realistic possibility of discrimination these questions should have been allowed  new trial ordered

R v Williams SCC 1998

Facts/Issues / Aboriginal man accused of robbery sought to ask jurors about ability to judge impartially.
Issue: Does the evidence of widespread bias against aboriginal people in the community raise a realistic potential of partiality?
Held / 2 stage approach to s.638(1)(b)
Test / 1. is there a realistic potential or possibility for partiality? generous approach must be taken

Accused must demonstrate widespread or general prejudice to establish the right to challenge for cause.
AND that the jury pool may contain people who are prejudiced and who’s prejudice might not be capable of being set aside

2. if yes, defense may question jurors whether they harbour prejudices, and if so, if they can set them aside. (no proof required)

judicial notice will be reserved for facts that are so well known

Questioning of the juror: controlled by the trial judge, pre-approved questions

Are you partially affected by the accused’s race? (harsher to accused?)
Are you partially affected by the accused being Indian and the victim being white? (sympathetic to victim?)

Note that interraciality is not a prerequisite for challenging a juror

EVIDENCE AND PROOF

Two Principles (golden threads) -Woolmington

Presumption of Innocence
Proof beyond a reasonable doubt

s.11(d) of the Charter: everyone accused has the right to be presumed innocent until proven guilty

R v Oakes SCC 1986: confirms that the presumption of innocence is a hallowed principle, embodied by s.11(d) of the Charter

Facts/Issues / Charged with unlawful possession of a narcotic for the purpose of trafficking: presumed to be in possession for the purpose of trafficking.
 Argued that s.8 of the Narcotics Control Act violates the presumption of innocence in s.11(d), because it could be possible for a conviction to occur despite the existence of a reasonable doubt (needs a balance of probabilities to prove innocence).
Held / The act contains a reverse onus, a violation of 11(d) and it is not a reasonable limit
Notes /

It protects the fundamental liberty and human dignity of any accused. This is ESSENTIAL to fairness
This is manifested in Judges not being allowed to speak publically, and lawyers being the face of deference to honour the presumption.
It can only be rebutted by proof beyond a reasonable doubt

What must the crown prove beyond a reasonable doubt?

Elements of the offence (mensrea and actusreus)
The absence of a defence

**Note that a reverse onus is upheld as constitutional in Chalk

R v Lifchus SCC 1997

Facts/Issues / Trial judge told the jury to use the phrase “reasonable doubt” in its ordinary, everyday sense
Held / The instructions were an error- it has a special meaning and is intertwined with the presumption of innocence.
a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for a jury to convict.
Notes / There are three standards of proof:

beyond a reasonable doubt (highest)
balance of probabilities (50% +) - more likely than not – used in reverse onuses
some evidence/air of reality – filter for the jury

R v Starr SCC 2000

Facts/Issues / Trial judge instructed the jury that “reasonable doubt” had no special connotation and it did not require proof of an absolute certainty. He failed to explain the special legal significance (requires a significantly higher quantum of proof than the balance of probabilities)
Held / The trial judge erred by not complying with the Lifchusstandard. The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities.
Notes / Dissent: Lifchus provides guidelines rather than prescriptions, the charge when read as a whole makes it clear- the statement was a harmless error. Says that jurors are sophisticated persons (??)

ACTUS REUS

Prohibited conduct  cannot be too vague/broad and cannot be retroactively prohibited

Contemporaneitydoctrine that governs the relationship between mensrea and actusreus: with regard to all offences that require proof of fault, the offence cannot be proved unless the element of fault, the mensrea, and the actusreus coincide. There must be a temporal overlap between the mental fault and the prohibited conduct. The doctrine is applied flexibly.

It has not been explicitly held to be a principle of fundamental justice within the meaning of s.7

R. v. Cooper SCC 1993 pg 307 Canadian Authority

Facts/Issues / Accused charged and convicted of manual strangulation. Testified he got angry at the victim, grabbed her by the throat and shook, then recalled nothing until he awoke in his car and she was dead. He was drunk. She died 2.5 mins after he grabbed her.
Held / It can be reasonably inferred that when he grabbed her neck there was the necessary coincidence between the strangulation and the likelihood it would cause death (it is not necessary that it continue until the death). It is not necessary for the guilty act and the intent to be completely concurrent.
Dissent / distinguishes between intent to cause bodily harm and intent to cause death, and holds that the accused must have awareness when the wrongful conduct becomes likely to cause death.

Meli v The Queen PC: the entire episode (beating and throwing off a cliff, even if he died later) was one continuous transaction. The mensrea coincided with the series of acts at some point
R v Miller England: accused was smoking and fell asleep, woke up to the mattress smoldering and left the room. The last thing he did was an omission, but this is ok for arson (the failure to extinguish the fire made intentional his previously unintentional act and was regarded as ONE act)
Fagan England: drove over an officer’s foot, but then remained there when asked to move. The initial action may have been unintentional, but once he knew the car was on his foot it was intentional (not just omission or inactivity) and became criminal at this point. The court looked at the act and omission together: illustrative that the court takes a general approach to actusreus. (not a narrow approach)

R. v. Williams SCC 2003 pg. 309

Facts/Issues / In a relationship where they had unprotected sex, then tested positive and was counselled on the duty to disclose. They continued to have unprotected sex, and the victim tested positive. He was charged with aggravated sexual assault.
Issue: before testing there was endangerment but no intent, afterwards there is intent but potentially no endangerment. When did she contract the virus?
Held / Conviction sustained for attempted aggravated sexual assault. There was reasonable doubt as to whether he was endangering the life of the victim while he was aware of his HIV status.

Must be:

Physically voluntary
A Prohibited act or omission
Factually and legally cause the harm

1. Voluntarinessthe prohibited conduct is a product of the will of the accused. Consciousness alone is not enough to establish voluntariness, an element of control is required (conscious choice). There must also be moral voluntariness (Ruzic)

This is not expressly mentioned in the Code, it is a common law principle and requirement. Why? It is unfair to convict someone for an unintentional act (ex. Severe mental disorder, extreme intoxication, sleepwalking, automatism…where it is physically impossible to fulfill a legal duty)

Debate: about whether this should be lodged in mensrea or actusrea. Basically it doesn’t really matter (UNLESS strict liability), it just needs to be established in order to have a conviction. There may be overlap (Daviault)

R. v. Larsonneur1933 England CA: French woman had to leave England, she went to Ireland where she was sent back to England. She was charged for being there, despite it coming from circumstances beyond her control. This is viewed as an improperly decided case  ignored voluntarinessaspect.
Kilbride v. Lake 1962 New Zealand: Man returned to his car and had a ticket for not displaying a warrant of fitness. It was there when he left the vehicle, and had detached while he was away. Although this was a strict liability offence (no mensrea requirement):
A person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him: he must be responsible for the physical ingredient of the offence. The actusreus was NOT as a result of his conduct here.

R. v. RuzicSCC 2001pg 315, 904, 917, 926

Facts/Issues / She was a drug mule, and had been threatened by traffickers (who knew information about her) that they would harm her mother if she didn’t deliver the drugs.
Rule / If the accused has been subject to duress, they may have chosen to engage but not to morally commit the crime.
“criminal liability will only be borne by those persons who knew what they were doing and willed it”

2. Act or Omission: found in the code and case law interpretations of prohibited acts, omissions, status or circumstances. Note that if the language of the code is vague, there is the principle of strict construction

What is the Actus Reus (the prohibited conduct or omission)

Start with the statute (language, definitions provided)
Turn to the case law for interpretations of the words

OMISSIONS: when should a failure to act form the basis of criminal liability? When should the law impose a legal duty to act?

There is no general duty to be a good Samaritan. However there are recognized circumstances where there is a legal duty.
Relationships of dependency
When an undertaking is taken on
Handling dangerous objects, performing risky acts (reasonable care required)
There are duties to act that are codified in the criminal code, and the omission to perform these duties may amount to criminal negligence or common nuisance

s.215 / Duty to provide the necessaries of life to:

Children under 16 (parent is obligated)
Spouse or common law partner
A person under their charge if that person is unable to provide themselves with the necessaries of life due to age, illness, mental disorder, and is unable to withdraw themselves from the charge

The charge will be made out where the person under charge is in destitute or necessitous circumstances, or if their life is endangered. It is NOT a defence that someone else, who is not under legal duty to do so, provided the necessities of life

A religious belief is not a lawful excuse (Tutton and Tutton)
Not the mensrea requirement is objective

s.216 / Everyone who undertakes surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another, except in cases of necessity is under a legal duty to have reasonable knowledge, skill and care

Includes someone who is donating blood and knows they are infected with AIDS, they have a duty to not donate (Thornton)

s.217 / Everyone who undertakes to do an act is under a legal duty to do it if an omission to do it is or may be dangerous to life

The mere expression of words indicating a willingness to do an act does not trigger this duty (Browne)

s.217.1 / Everyone who undertakes or has the authority to direct how another does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work
s.218 / Abandoning or exposing a child under 10 so that its life is or is likely to be endangered is an offence

Note: this requires proof of subjective mensrea (R v H(AD))

s.79 / Duty to take care of explosives
s.89 / Duty to take care with firearms

Failing to act in these circumstances can give rise to:

Common nuisance
s.180(2) / Everyone who does an unlawful act or fails to discharge a legal duty and thereby

Endangers the lives, safety, property, or comfort of the public
Obstructs the public in the exercise or enjoyment of any right that is common

** the nuisance has to be directed to the public generally rather than specific people (Thornton)
Criminal negligence / Defined in s.219: everyone who is criminally negligent who in doing anything or in omitting to do anything shows wanton and reckless disregard for the lives and safety of others.
s. 219(2): duty means duty imposed by law
s.220: criminal negligence causing death
s.221: criminal negligence causing bodily harm
s.222(5)(b): where the acts of the accused were a significant contributing cause to the death(Nette)

Issue: do common law duties still exist? The SCC hasn’t ruled on this, they have tried to fit the act within the legal duties in the criminal code. IF common law duties exist, how does this interact with s.9 of the criminal code (no person shall be convicted of an offence at common law)

Popen NBCA: duty in regard to crim negligence can arise out of statute or common law. Convicted accused based on common-law duty to take reasonable care when dealing with dangerous object (rifle).
Nixon 1990 BCCA: Officer in charge of police lock-up was guilty of aggravated assault on the basis of his breach of legal duty to provide care and protection to inmates—inmate in this case was assaulted by other police officers and officer in charge knew, did nothing to stop it (he had a duty to protect). Court held this duty arose out of common-law and statute.
Coyne New Brunswick: common law duties are ok
Miller England: created a new duty with arson

R v Thornton 1991 ONCA

Facts/Issues / The accused was HIV-positive, and infectious, and he donated blood to the Red Cross anyways and withheld the information. The blood was screened and set aside. He was charged with committing a common nuisance endangering the lives or health of the public.
Issue: can a legal duty arise out of common law?
Held / Donating blood which is known to be HIV positive is a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person. (s.216). Had it not been detected by screening, it would have endangered the public (this does not require actual harm). The public was in danger from the moment he donated blood. The accused had personal knowledge of the consequences of his blood passing to others, and deliberately withheld the info so he also had mensrea.
- ONCA said that common nuisance can be created based on common law duties

R v Cuerrier: The court created and imposed a duty of disclosure: non-disclosure by the accused of HIV-status foreclosed any possibility of a valid consent. It enforces a duty of disclosure in some circumstances. BUT this is not like creating a common law duty because it still turned on consent.