Law 221 – Criminal Law – CAN
Jenny Musyj
Professor Emma Cunliffe
Table of Contents
Law 221 – Criminal Law – CAN 1
Exam 2
Proving the Crime 6
Crown’s Burden 6
Jury Instructions & Roles 6
Prosecutorial Discretion 6
BRD 7
CREDIBILITY 7
DISTINGUISH BETWEEN BRD AND BOP 7
Actus Reus 7
ACTS 7
OMISSIONS 7
CONTEMPORANEITY 8
Causation 8
Motive 8
Exam
Step 1: Look up Criminal Code Offence
The actus reus will be in offence creating section of the Criminal Code
Step 2: Look up DEFINITIONS of important terms
1) look at section ; 2) look at sections above or below act ; 3) look at beginning of part ; 4) look at section 2 of criminal codeStarts on Page 2; 5) look at index; 6) give ordinary an plain meaning of the word , context of the provision, with parliament’s intent in mind...PAY ATTENTION TO “AND” & “OR”...OR means prove only one, AND means prove both
Step 3: State whether the act is voluntary & Crown’s Burden
Issue: Crown must prove voluntariness beyond a reasonable doubt
Rule: comes from Ruizic : criminal responsibility [is] ascribed only to acts that resulted from the choice of a conscious mind and an autonomous will.
Application: apply to fact pattern
Conclusion voluntariness is clearly proven
The crown must prove beyond a reasonable doubt that the A had an act or omission.
-The initial burden is on the Crown to introduce evidence on each element of the offence. Burden never shifts to the A. (Wollimington)
Step 4 :Divide Actus Reus into 3 parts (not every offence has all three)
STATE THAT CROWN MUST PROVE EACH ELEMENT OF THE OFFENCE BEYOND REASONABLE DOUBT(WOLLMINGTON)
· Conduct-Always
o what act or omission must crown prove? VERB
o Must be VOLUNTARY
· Circumstances-Sometimes Present
o may include presence or absence of facts
o Look for Words “while” “when” “without” “with”
o Qualifies conduct as criminal
· Consequences-Sometimes Present
o the offence may require crown to prove that a result came about because of conduct.
o Look For: “obtaining” “resulting” “Causing” “by”
Step 5: Whether A in {law and/or fact} caused the consequence (BRD)
· Rules: BRD: much more than balance of probabilities, but less than absolute certainty (Lifchus)
· Crown bears the burden throughout and it never shifts to the A person (Lifchus)
· Need to be satisfied beyond a reasonable doubt about causation.
Step 6: Causation
o Where a consequence is necessary CROWN MUST PROVE CAUSATION BRD
Steps for Determining Causation:
(1) Crown must establish that the A’s conduct was a “but for” cause of the harm or prohibited outcome [FACTUAL CAUSATION] medical
Factual causation is “an inquiry into how the [prohibited consequence was caused] in a medical, mechanical or physical sense, and … the contribution of the accused to that result” Nette
establishes a logical btwn conduct and prohibited consequences
IF THE CROWN CAN DO THIS:
(2) Crown must establish that the A’s conduct a legal cause of the harm or prohibited outcome [LEGAL CAUSATION]
if the link is strong enough for moral blameworthy (Dickson in Smithers)
Important: test for legal causation will depend on whether we are dealing with a non-homicide or homicide case
1. Causation in non-homicide cases:
· R v. Winning: ON CA held that the Crown must establish that the A’s conduct was a contributing cause outside the de minmus range
2. Causation in homicide cases:
· Smithers: Crown must establish that the A’s conduct was at least a contributing cause of death, outside the de minimus range
o Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed some way to the death
o Even if death is unexpected and the physical reactions of the deceased unexpected, if the A intended to do grievous bodily harm to the deceased, that could be enough to show causation
· Nette: confirms that the Smithers standard applies to all forms of homicide
o IS THERE A JURY? (Nette)
§ Arbour J: instruct jury whether A’s actions were a significant contributing factor to V’s death
§ Dissenting: L’Heureux-Dube J. The formulation offered by Arbour unreasonably increases the standard of causation above that delineated in Smithers. The better formulation is: Was the accused person’s action a contributed cause that is not trivial or insignificant?
§ IF TRIAL JUDGE THIS DOES NOT NEED TO BE RESOLVED, STILL MENTION ANYWAS
· Maybin: reconfirmed that the key test is whether the A’s action were a significant contributing factor
Step 7: Look for an intervening act
1. was the intervening act foreseeable?
2. was the intervening act independent of the A’s actions? (independent act overwhelming intervening act?)
Maybin: Factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause
-reasonable possibility of another cause= acquittal
Smith (blood transfusion by accident) and Blau (refusing a blood transfusion after stabbing): if it wasn’t for the intervening act, the death would not have occurred
Step 8: Look at statute for mens rea language ;IS IT SUBJECTIVE OR OBJECTIVE?
Start your analysis with wording of the statute
· Look to words that signal objectivity: NEGLIGENCE, DUTY, UNLAWFUL, REASONABLE, DANGEROUS,
· When a statute is silent start with the presumption that mens rea is subjective
o R v ADH: if Parliament wants to do something other than subjective MR then they need to tell us ; protects moral innocence
o Guant: if the code doesn’t use MR language, is it necessary implication that the Parliament intended for subjective
Subjective mens rea
* Subjective MR is often satisfied by lower forms of MR such as recklessness, without needing to go to higher forms (ie if you meet recklessness, you don’t need to go to intent) unless statute requires it
It is ordinarily reasonable to assume that the accused foresaw the probable natural consequence of his or her act – if s/he chose to proceed, it is reasonable to assume intention- in the absence of evidence or testimony to the contrary (Buzzanga)
Conduct: Intentional or reckless act or omission;Circumstances: Knowledge of the circumstance, or be reckless or wilfully blind to its existence;
Consequences: Intend or be reckless as to the consequence.
· Subjective mens rea can be inferred from the act Theroux
o INTENT-consciously choosing to carry out an act/ Act with purpose of accomplishing OR knowing that a consequence is substantially certain and persisting nonetheless (Buzzanga)
§ The subjective presumption of MR can change when parliament includes mention of it “intends to” “with the purpose of” “with intent of”, ‘wilfuly” (Buzzanga)
· Wilfully is context dependent, can be intent or recklessness
· Wilfully might be used to modify a consequence or conduct
· May be used to by legislature to elevate mens rea so that its greater than just recklessness
§ Subjective mens rea has nothing to do with whether a person thinks what they’re doings is right or wrong… good innocent motive doesn’t negate intent Theroux
§ purpose being synonymous with intent the decision to act to bring about a particular result (Hibbert)
· IF TALKING ABOUT INTENTION, MAKE A DISTINCTION BETWEEN MOTIVE AND
§ CITE LEWIS :Crown does not need to prove motive, Parliament has required proof of a religious or political objective or motive in addition to other intent requirements in its definition of terrorist activities in s 83.01(1)(b)(i)(A) of the Code
Word / Associated AR / DefinedIntention / Conduct / Synonymous w/ voluntariness in AR – ie a conscious decision to act or refrain from acting (Ruzic)
Intention / Consequence / “The exercise of a free will to produce a particular result” (Lewis)
Intention can be shown whether the underlying conduct is an act or an omission (Bottineau)
o KNOWLEDGE- knowing that a circumstance exists or doesn’t, includes willfully choosing not to confirm suspicion (wilful blindness)
§ (Briscoe): defines WILFUL BLINDNESS as imputes knowledge to an A whose suspicion is aroused to the point where he or she sees the need for further inquires, but deliberately chooses not to make those inquires [necessary to enable you to know what would happen but choosing not to put the pieces together]
§ Briscoe- says WILFULLY BLIND= actual knowledge whenever knowledge is a component of the MR
§ Briscoe Where the A suspicion is aroused to where they see the need for further inquires but chooses not to ask, they will be fixed with the same MR if they were going to do it
Wilful blindness / Associated AR: Circumstance or conseq. / where A’s “suspicion is aroused to the point where h/she sees the need for further inquiries, but deliberately chooses not to make those inquiries.”(Briscoe)“[A] person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.” (Sansregret)
o RECKLESSNESS- foreseeing that risk of consequence occurring but choosing to proceed regardless Sansreget
o You can be reckless to the circumstances as well. Recklessness is the min so it’s the easiest to prove
o (Theroux): subjective foresight of the consequences and a decision to proceed regardless. In most cases RECKLESSNESS is enough to satisfy subjective MR
o In cases where parliament implements the term “wilful” there may be an intention to elevate the MR requirement. Though wilful can mean reckless or intent, it is context dependent Buzzanga [remember that wilful also modifies either a consequence or conduct] you decide
Reckless / Associated AR: Circumstance or consequence / Shown where A knew of the “likely consequences” and chose to proceed anyway (Theroux)“One who, aware that there is danger that his conduct could bring about [the prohibited consequence] … nevertheless persists, despite the risk.” (Sansregret
Conduct / Intentional or reckless act or omission [don’t analyze if there is consequences].
Circumstances / Knowledge of the circumstance or being reckless (Theroux) or willfully blind to its existence (Briscoe).
Consequences / Must intend or be reckless or willfully as to the consequence
Motive / Consequence / Rarely required, always relevant
“That which precedes and induces the exercise of the will” (Lewis)
4. How to interpret statutory language re subjective mens rea?
Examples
Section / Case / Phrase / Interpretations. 21(1)(b) / Hibbert / “does or omits to do anything for the purpose of aiding any person to commit an offence” / Purpose does not import an element of desire to bring about the commission of the offence. It is synonymous with intention (the exercise of will to bring about a particular result).
s. 21(2) / Hibbert (obiter) / “intention in common” / “two persons must have in mind the same unlawful purpose”
s. 319(2) / Buzzanga & Durocher / “wilfully promoting hatred” / Insertion of ‘wilfully’ means suggests Parliamentary intention to elevate mens rea above presumptive minimum. Only intention to promote hatred will suffice (A “foresaw the promotion of hatred against an identifiable group was certain or morally certain to result,” and decided to proceed).
s. 380(1) / Theroux / “by deceit, falsehood or other fraudulent means … defrauds” / Recklessness is enough re the prohibited consequence of defrauding. Subjective knowledge that this act could have as a consequence the deprivation of another, including placing another person’s pecuniary interests at risk.
OFFENCES WHERE SUBJECTIVE MR IS NOT REQUIRED:
1. s. 86(1) and (2) R v Durham
o Even though a criminal conviction carries more stigma than a regulatory offence, this is not enough to require a subjective mental element.
2. s. 433(a) R v Peters
o subjective MR is not constitutionally required with respect to consequences resulting from a wilful act other than murder or theft caused by a lack of care on the part of the A
3. s. 269 DeSousa
o Requires objective foresight of the consequences of the accused’s unlawful act. The underlying offence committed by the accused must not be an absolute liability offence.
o objective foreseeability of bodily harm is required objectively because of "unlawfully" and that satisfies the constitution minimum
5. s. 222(5)(a) Creighton
o the mens rea is objective foreseeability of a risk of bodily harm that is neither trivial nor transitory. Unanimous – manslaughter does not carry such a stigma that subjective mens rea regarding consequences is required.
OBJECTIVE MENS REA
· Negligence; duty; reasonableness [Tutton]; dangerousness [Beatty]; unlawfully [DeSousa}.
· R v Hundal: -the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the A's situation
· a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the A
· Unlawfully – the MR requirement is objective foreseeability of harm (Creighton)
o symmetry between the prohibited consequence and MR is not necessarily required either; objective foreseeability of a risk of bodily harm is enough : Creighton
o the mental fault lies in the failure to direct the mind to a risk which the reasonable person would have appreciated; Creighton
o The standard against which the conduct must be measured is always the same- it is the conduct expected of the reasonably prudent person in the circumstances; the reasonable person must be put in the circumstances the A found himself in when the events occurred in order to assess the reasonableness of the conduct Creighton
The test is:
1. Has the AR been established? [A marked departure from the standards of the reasonable person in all the circumstances of the case – either carrying out the activity in a dangerous manner or embarking on the activity in circumstances where it is dangerous to do so.]
2. Has the MR been established? [According to the reasonable person in the circumstances – an inference may be raised that A failed to direct his or her mind to the risk and to take care; if there is evidence raising a question about A’s capacity to appreciate the risk, one must consider whether A had capacity to appreciate the risk flowing from the conduct.) (Creighton).
Minimum MR for War Crimes: Finta: