-Golden threads of crim law are presumption of innocence and proof beyond a reasonable doubt (Woolmington)
-Requires ♕to establish AR/MR for all elements AND absence of defence BRD
-Presumption of innocence protects fundamental liberty + human dignity(Oakes)
To meet evidentiary burden, Parties may rely on presumptions that give rise to some element of proof – ex: presumption that person intends natural consequences of their actions can be used to meet MR requirement (Statute/Insanity exceptions)
Three standards of proof (Lifchus):
-BRD: < absolute certainty; > probable guilt
-BOP: more likely than not (standard with reverse onus)
-Air of Reality: some evidence (standard so evidence presented to Trier of Fact)
-If properly instructed jury acting reasonably could acquit A on basis of the defence(Cinous), then onus shifts to ♕prove its absence BRD
Actus Reus: Voluntariness/Contemporaneity
Must be 1) physical voluntary; 2) act/omission [+sometimes…] 3) in proscribed circumstances; and/or 4) causing x consequences
Contemporaneity requires AR/MR to coincide at some point (Cooper)
-Can view multiple acts/omissions as continuous transaction (Fagan)
-Flexible approach; AR can be complete before MR existed (Williams)
Principle: absence of voluntariness(A’s choice to act) is always defence(Rabey)
Actus Reus: Omissions, Status, Circumstances
Omission imposes a legal duty; criminalises failure to act (♕must establish duty)
-s.215: Duty to provide necessities of life arises from relationships of dependency
-s.216: Duty arises from undertaking acts that may endanger life (med treatment/etc.)
-s.217: Duty arises from undertaking to act if omission creates risk to life
-s.217(1): Duty to prevent bodily harm arising from undertaking or authority to direct how another does work/performs task
-Failure to act gives rise to s.219: criminal negligence causing death/bodily harm
-CL duty to disclose HIV status before sexual conduct; otherwise may be fraud
To be convicted under s.219, must have been a legal duty (s.217) arising from an undertaking (binding commitment on which reliance is reasonably placed) (Browne)
Status offences criminalise state of being (ex: prostitute, vagrant, crim org member)
Act criminalised w/in specific circumstances - ex: driving impaired, w/o consent
Actus Reus: Causation ♕must establish factual + legal
Factual causation: logical connection between A’s act/omission and outcome
Legal causation: casual connection sufficient to support A’s criminal liability
-Distinct from MR, but proper standard expresses sufficient fault to base liability
-Act must be significant contributing cause (>de minimis) (Nette, Smithers)
-For 1st deg murder: act must be substantial, integral cause of death (Harbottle)
-Thin Skull Rule: must take victim as you find them (Smithers)
-Intervening Act: subsequent independent event may break causation chain∴no LC
-Subsequent cannot 1) flow from, 2) be response to, or 3) be dependent on initial act
-If intervening act was directly connected to A’s act, then LC met (Pagett)
-Consider reasonable foreseeability and independence (Maybin)
-If IA objectively foreseeable response to A’s act, then LC met (Maybin)
-If IA overwhelmed A’s contributing act, then no LC (Maybin)
Mens Rea & Intent
Morally innocent cannot be found criminally liable; conviction requires guilty mind
-MR must be proven in relation to all elements of offence (Pappajohn)
-MR only requires intent for act, not desire behind intent (Hibbert) / If no language for true crime, presume subjective MR (Buzzanga)
-Rebuttable, if lang/purpose/context/scheme suggests Parl intended obj MR (ADH)
-Offences with word “dangerous” (Hundal) or “careless” (Findlay) = objective
-Predicate offences: subjective attaches to 1part, objective to other (De Sousa)
-Criminal negligence or duty-based offences = objective
SubjectiveMR asks what was in A’s mind at time of act
-A’s intent to be objectively determined considering all circumstances (Buzzanga)
-Intentionally/wilfully/knowingly/for purpose of: A acts w/ intent of bringing about proscribed harm
-Indirect intention: A acts with intent for alternate purpose, knowing/foreseeing that proscribed harm is certain/substantially likely to occur (Buzzanga)
-Recklessness: A acts, know/foreseeing proscribed harm may occur (Sansregret)
-More likely to arise in consequence crimes
-Subjective element in decision to take deliberate/unjustified risk (Buzzanga)
-Cannot recklessly commit sexual assault (Briscoe)
-Wilful blindness: A became aware of risk of proscribed harm, but preferred ignorance (Sansregret)– imputes knowledge
-More likely to arise in circumstance crimes
-If A failed to inquire, despite (subjective) need to inquire, wilfully blind (Briscoe)
-Not simply failure to inquire, but deliberate ignorance (Briscoe)
-If A assist X, knowing X was party to crime, may be accessory after fact (Duong)
-For manslaughter, only risk of bodily harm must be obj foreseeable (Creighton)
-For stigma offences (theft, (attempted) murder, crimes against humanity), ♕ must show A had subjective foresight of proscribed harm BRD (Vaillancourt, Martineau)
Objective MR evaluates A’s acts against a reasonable person in the circumstances
-Negligence: Liability attaches if there is a marked departure from SOC that reasonable person would observe in A’s position (Hundal, Beatty)
-Individual’s circumstances considered in defences or sentencing (Creighton)
-Strict Liability: Liability attaches if ♕proves AR BRD, unless A can advance due diligence defence (BOP)
-Reverse onus for regulatory offences is constitutional (Wholesale Travel)
-Default MR for regulatory offences (Sault Ste Marie) – ex: security, environment
No MR: Absolute liability: Liability attaches if ♕proves AR BRD; no defof no MR
-CC language must be explicit; enables efficiency – ex: parking offences
-Not permitted if punishment involves potential loss of liberty (BC MVA)
Defences
After ♕proves AR + MR for all elements of Offence, A can introduce evidence of Defence, so long as there is an air of reality (i.e. some evidence) (Lifchus)
-Could properly instructed jury acting reasonable acquit A on basis of def? (Cinous)
-Generally, if air of reality met, ♕must disprove absence of defence BRD
s.8(3) allows CL justifications/excuses/defences to apply to extent that they do not alter/are not inconsistent w/ Parliament’s articulation
Mistake/Ignorance of Law
Ignorance of law is not an excuse for committing an offence (s.19); except:
1) Mixed law/fact, where mistake goes to MR of offence 2) Impossibility
3)Officially induced error - excuse if: error of law or mixed fact/law; A considered legal consequences of act; advice from appropriate official; advice reasonable; advice wrong; and A reasonably relied on advice in committing offence (Lévis)
Mistake of fact operates as limited defence for subjective MR offences
-A argues could not have had requisite MR, since honestly mistaken (subjective) about essential element of offence (Howson, Docherty, Prue, Jorgensen)
Sexual Assault (general intent)
AR elements: 1) Touching (obj); 2) Sexual nature (obj); 3) Non-consent (C’s subj) / MR elements: 1) Intention to touch; 2) Knowing of/being reckless to/wilfully blind to C’s non-consent (Ewanchuk)
Defences: a) Incident never happened; b) Consent; c) Mistaken belief in consent
-s.273.2(b): modified objective standard for mistaken belief in consent defence
-Mistake not defence if A did not take reasonable steps considering circumstances known to A to ascertain whether C was consenting
-If not honest mistake, then no reason to consider reasonableness
-Objective standard/reasonable steps requirement AND s.276 upheld in Darrach [2000]
Intoxication
Historically, intoxication was aggravating factor but in now, intoxication may reduce legal culpability; challenges MR component if judge satisfied effect of intoxication may have impaired A’s foresight so as to raise reasonable doubt that A had requisite intent (BUT not if A gets intoxicated to commit or if drunkenness is component of AR of offence (ex: drunk driving))
Underlying tension: morally innocent should not be punished (if MR or voluntariness of AR compromised) vs policy concerns around defending self-induced intoxication
General intent crimes only requiring intent to commit immediate act
-For GI, intent to commit crime can be substituted w/ intent to drink (Leary)
-If akin to automatism, then defence of intoxication is available for GI(Daviault)
-BUT, s.33(1) preclude self-ind toxas deffor crimes interfering w/ bodily integrity
Specific intent crimes requiring intent for an outcome beyond the immediate act
-Greater moral blameworthiness (stigma) for SI, so intox defence available (Beard)
-If SI not met, may still be convicted of lesser-included general intent offence
Mental Disorder
Only punish those who are morally culpable; i.e. acted voluntarily w/ intent
If found not “fit to stand trial”, postpone trial; if never fit then remain w/in med system
-Fitness requires: limited cognitive capacity to understand nature of proceedings and its possible consequences, and to communicate w/ counsel (Whittle)
-Not necessary for A to be capable of making rational decisions in best interests, or exercise analytical reasoning to make choice to accept counsel’s advice
s.16(1) provides A not criminally responsible for act/omission committed while suffering from MD that renders A incapable of appreciating nature/quality of AR OR of knowing it was wrong
-(2) Presumption that A does not suffer from MD unless proved otherwise on BOP
-(3) Burden w/ party raising issue(4) A must disprove sanity on BOP (upheld in Chaulk)
-Focus on “cognitive capacity,” but CL reads in “volitional impairment” (Stone)
MD/Disease of Mind: any illness/disorder/abnormal condition which impairs human mind and its functioning BUT not any self-induced states or transitory mental states (ex: hysteria, concussion) (Cooper)
-Judge decides if MD available BUT Trier of Fact decides if operates as defence
Appreciating (physical) nature/consequences:
-Appreciates > knowing; no req for appropriate feelings of guilt/remorse (Cooper)
-No req to appreciate penal consequences; merely physical consequences (Abbey)
Knowing it was wrong:
-Legally and morally wrong according to societal moral standards (Chaulk)
-Wrong by standards of reasonable person in circumstances (Oomen)
-Includes incapable of knowing act was morally wrong in circumstances (Landry)
Defence can be raised: 1) During trial by A; 2) During trial by ♕ if A raised issue of mental capacity for criminal intent; 3) After finding of guilt, but before verdict formally entered, by either A or ♕(bifurcated trial) (Swain)
If NCRMD, Court holds disposition hearing to decide whether A should be released unconditionally, released upon conditions of supervision, detained in hospital; consider circumstances and need to protect public from dangerous persons (Winko)
Automatism
Common law defence of impaired consciousness, in which an individual, though capable of action, has no voluntary control over that action (Stone)
Includes transient malfunctioning of mind caused by external factor (Rabey)
1)Trial Judge must assess whether a properly instructed jury acting reasonably could find that A acted involuntarily on BOP (normal air of reality test – Fontaine)
-A must rebut presumption of voluntariness on BOP (evidentiary burden)
-A must assert involuntariness, using 1) expert + 2) other supporting evidence
-Consider appearance, history of involuntariness, motive
-If crime can be explained w/o alleged automatism, defence usually fails
-If claiming psychological blow, requires evidence of trigger equivalent to shock
-If automatism not made out, A may still pursue s.16 NCRMD
2)TJ decides whether to instruct Trier of Fact on alleged MD or non-MD automatism
-If MD, triggers s.16 ∴ NCRMD; If non-MD then acquittal
-Presumption of MD (disease of mind), but rebuttable; consider:
-Internal cause:(modified objective) would reasonable person in A’s position have reacted to alleged trigger by entering dissociative state?
-If trigger is normal stresses, then sign of personal weakness ∴ MD (Rabey)
-Continuing danger: if condition likely to pose danger to public → MD (Parks)
-Consider likelihood of recurrence, history of dissociative states
-Policy concerns – includes: fear of fabrication, public disillusionment caused by acquittal, need for subsequent monitoring (Stone)
-Non-MD for psychological blow automatism requires evidence of extremely shocking trigger(modified objective)
-Consider: Severity of trigger, Bystander’s evidence, Corroborating medical histories, Presence/absence of motive, Relationship btw A/Victim (Stone)
3)Trier of Fact decides whether A was suffering automatism
Provocation
Limited statutory defence (s.232) available only to reduce murder to manslaughter
-Concession to human frailty; person who momentarily loses self-control is less blameworthy
After ♕ establishes intentional killing, Plf may raise by establishing ‘air of reality’ that:
1)Victim’s conduct would constitute indictable CC offence punishable for 5+ years;
-Does not include anything V had legal right to do or if incited by A (objective)
2)Was sufficient to deprive an ordinary person of self-control (objective)
-Ordinary person is someone of normal temperament; age considered (Hill)
-Characteristics necessary to understand provoking conduct attributed (Thibert)
-Ordinary person is informed by contemporary standards; not racist/etc. (Tran)
3)A acted on the sudden AND before there was time for their passion to cool
-(Subjective) - Distinguish loss of self-control from premeditated/vengeful conduct
-Provoking conduct must strike on unprepared mind, taking A by surprise (Tran)
-Homicide victims disproportionately women/gay men killed by male partners
-Promotes/accommodates homicidal violence - Inherently victim blames
-Suddenness does not accommodate continued experiences of violence (BWS)
Self-Defence
Revised law removes language of justification + enables defence for any offence
Statutory defence (s.34(1)) which holds that A is not guilty of an offence if:
a)Belief on reasonable grounds that force is being used/threatened against them/another (subjective/objective) (Pétel)
b)Act committed for purpose of defending/protect themselves/others (subjective)
c)Act was reasonable in circumstances (subjective/objective)
-Proportionality! – consider relevant circumstances of person/parties/act
-s.34(2) lists factors, incl: nature of force, imminence, alt responses (Cinous), A’s role, threat/use of weapons, relative size/age/gender/ability, relationship
-“Reasonableness” must be assess in light of A’s experiences/position (Lavallee)
-When SD raised w/ BWS, Trier of Fact must be informed Lavallee principles since expert evidence can explain (Malott): Why woman may remain in abusive relationship; Nature/extent of violence (supported by A’s testimony); A’s ability to perceive danger from abuser; A’s reasonable belief of no alternatives; Learned helplessness / Duress
Duress is mixed statutory/CL defence that excuses A from criminal liability; Recognises A who concedes to human frailty in face of agonising choice is less blameworthy (Ruzic)
s.17 operates if A committed (i.e. principal offender) an excluded offence
-Parties as per s.21(1)(b)/(c) or s.21(2) may rely on CL duress (Paquette)
-Whether A is co-Principal or party is question of fact (Mena)
If A aided/abetted to offence OR A committed any non-excluded offence, CL duress available; requires A to establish an air of reality (and ♕disprove BRD):
1)A acted under express/implied threat of death/serious bodily harm to A or 3P
2)Reasonable belief that threat would be carried out (subjective/objective)
3)No safe avenue of escape/no reasonable alt (modified objective) (Hibbert)
4)Close temporal connection btw threat/act (modified objective)
5)Proportionality btw threat/criminal act (< harm avoided) (modified objective)
-CL duress historically unavailable for murder/treason since cannot value own life over innocent 3P’s, BUT now available for parties to murder (Aravena)
Necessity
CL defence that justifies/excuses A; A must establish w/ air of reality: (Perka)
-Unavoidable clear/imminent peril/danger (modified objective)(Morgantaler)
-No reasonable legal alternative (modified objective)
-Harm inflicted was proportional to harm avoided (objective)
Justifies conduct if strong utilitarian end; Excuses wrongful act compassionate grounds (Perka)
Liable as party to offence for…
-s.21(1)(b): acts/omissions done for purpose of aiding person in committing it
-AR: Acts/omissions w/ effect of aiding Principal - MR: Purpose was to aid Principal
-Requires knowledge/wilful blindness of Principal’s intent
-s.21(1)(c): abetting person in committing it
-AR: Encourage, assist, instigate, promote, or procure
-Requires more than mere presence; ex: Party had prior knowledge of Principal’s intention or present to encourage Principal(Dunlop and Sylvester)
-MR: Intention for words/acts to encourage Principal (Curran)
-s.22(1): counselling a party to an offence, even if carried out differently
-AR: Counsel, procure, solicit, incite - MR: Intent to bring about criminal result
-s.22(2) If commits another offence, liable if knew/ought to know was probable consequence of counselling (except murder/theft which requires subj MR)
s.21(2) extends liability beyond wrongful act originally intended; Party may become liable for another’s offence if knew/ought to have known was probable consequence of carrying out commonly intended unlawful purpose (Simpson and Ochs)
-A/principal must have in mind same unlawful purpose, but no mutuality motives/desires(Hibbert)
For (attempted) murder, Party requires subjective foresight of death (Logan)
-If subj intent not met, may be liable for lesser manslaughter (unlawful act abetted was known/ought to know cause harm short of death) (Kirkness)
No subj constitutional req for manslaughter, so sufficient if Party had/ought to have objective foresight of risk of bodily harm (Jackson)
Intoxication may be def for GI if liability depends on being party per s.21(b)/(c)(Fraser)
Assault (s.265), Aggravated Assault (s.268)
s.265(1): assault is (in)direct, intentional application of force on another w/o consent
-If result of carelessness (Starratt) or reflex (Wolfe), lacks intent ∴ acquit
-Cannot consent to force that may cause serious hurt/non-trivial bodily harm (Jobidon)
s.268(1): commits aggr assault if wounds, maims, disfigures, or endangers life of another
-AR: same as assault (application of force) + wound/maim/disfigure/endanger
MR: same as assault + objective foresight of risk of bodily harm (no intent to wound…)
Culpable Homicide (s.222), Murder (s.229(a)), Manslaughter (s.234)
s.222(1): homicide is (in)directly causing another’s death
-Causation: factual is jury; legal satisfied if act is significant contributing cause (Nette)
-Different MR if culpable homicide is murder (s.229) or manslaughter (s.234)
s.229(a): murder is (i) intentionally causing another’s death; OR (ii) intentionally causing bodily harm s/he knows is likely to cause death and reckless whether death ensues/not / -MR: (i): subj intention to cause death; OR (ii) subj intent for req degree of bodily harm + subj knowledge/ wilful blindness of likelihood of death
-Liability for murder cannot be based on MR < subj foresight of death (Martineau)
-If RD to requisite intent for murder → consider manslaughter(Kuzmack)
-Since SI, evidence of intoxication may be def, if TJ satisfied evidence may raise RD; if admitted, must specifically instruct jury that intox evidence can rebut presumption that person intends natural consequences of act; if, based on evidence of consumption, jury has RD that A had requisite intent, acquit → consider manslaughter (Kuzmack)
-If evidence of MD, should instruct jury that if A was not at time insane, but lacked mental capacity to form specific intent for murder may consider manslaughter (Baltzer)
-If evidence of multiple defs, jury should be instructed to consider cumulative effect to assess whether requisite intent met (Desveaux)--- avoid compartmentalising
s.234: manslaughter is culpable homicide that is not murder/infanticide
-MR: merely general intent (Mack) + risk of bodily harm obj foreseeable (Creighton)
Woolmington[1935] UKHL F: A shot ex, killing her; claimed trying to threaten to kill himself to win her back, but accidently shot her – H: Since fact of killing proved, presumption of intending natural consequences suffices for MR; A must provide evidence to displace presumption
Oakes[1986] F: Narcotics Act s.8 created statutory presumption of trafficking if A in possession of >x g – H: Reverse onus violates presumption of innocence (s.11(d))
Downey[1992] F: Statutory presumption for when person lives on avails of prostitution w/ built in “unless” to rebut; if rebutted ♕must prove BRD H: Presumption violates s.11(d) but justified by s.1
Lifchus[1997] How should jury instruction explain BRD? To convict, must find more than probable guilt, but can be less than absolute certainty
Starr [2000] How should jury charge explain BRD? – MAJ: BRD has special legal significance; closer to absolute certainty than BOP ∴ charge vitiated – DIS (LHB): Examine entire charge; ask if jury properly understood BRD / Actus Reus: Contemporaneity & VoluntarinessFagan [1969] UKCA F: A accidently drove over Officer’s foot, but remained when asked to move; assault – MAJ: Continuing transaction ∴ MR coincided with AR – DIS: Acquit; no satisfactory way to understand facts as assault
Miller[1982] UKHL F: A fell asleep smoking, woke up to fire; A left room w/o extinguishing; arson – H: Unintentional starting of fire + intentional omission = arson
Cooper[1993] F: A lost consciousness after grabbing Victim’s throat; awoke to dead V; AR present through act, but unclear if MR existed during blackout – MAJ: At point A grabbed V’s neck, death became likely; requisite intent does not need to continue for whole AR – DIS (Lamer): Intention to cause bodily harm not inexorably linked to conclusion that A knew act likely to cause death; w/o knowledge cannot convict for murder
Bottineau [2010] OntCA F: A confined grandchildren to room with no food/water; they died – H: Cannot specify when AR/MR coincided; continuing transaction - sufficient that A realised at some point confiningcould cause death
Williams[2003] F: A discovered HIV+, but continued having unprotected sex with C w/o disclosing status; charged w/ endangerment – H: attempted aggravated assault
-If C contracted HIV prior to A knowing status, then A did not endanger C’s life; criminal act of endangerment may have occurred before MR arose ∴ maybe no coincidingLarsonneur [1933] UKCA F: A’s passport conditions changed, so left UK immediately; went to Ireland but deported back to UK; convicted of being an alien – Court failed to consider voluntariness as requisite component of AR
Kilbride v Lake [1982] NZ F: Ticketed for not displaying warrant, but was there when he parked – H: Omission to display was out of his control; voluntariness ∴ no criminal liabilityActus Reus: Omissions, Status, Circumstances
Browne[1997] OntCA F: V swallowed bag of cocaine, causing sickness; A told V would take her to hospital – H: A called taxi; V died while waiting for it to come – H: not guilty
Thornton[1991] OntCA F: HIV+ A donated blood w/o disclosing; common nuisance s.180(2) – H: A had duty to refrain from conduct which could foreseeably cause serious harm (s.216)
Cuerrier[1988] – CL Duty F: HIV+ A had unprotected sex w/ C w/o disclosing; aggravated sexual assault – H: Dishonest act (failing to disclose) + Deprivation (denying C knowledge that sex could expose her to significant risk of serious bodily harm) = Fraud ∴ vitiated C’s consent
Mabior[2012] – CL Duty F: HIV+ A undergoing treatment; had sex (sometimes w/ condoms) – never transmitted HIV – H: Convicted of aggravated SA for times he did not use condoms – R: There is significant risk of serious bodily harm if there is realistic possibility of HIV transmission