Incomplete Crimes: Attempts

Incomplete Crimes: Attempts

·  s 24(1): “does or omits anything for the purpose of carrying out intention” à no recklessness for attempts

·  s 24(2): when attempt = legal attempt; not “mere prep”

—Actus reus = beyond “mere prep” [Cline]

·  When prep fully complete, next step + intent to commit crime sufficient to establish s 24 attempt

·  AR doesn’t have to be a crime, tort, or moral wrong

—Beyond mere prep = act vs completed offence [Deutsch]

·  Relationship b/w nature and quality of the act and nature of the complete offence

·  Relative proximity: time, location, remaining acts

·  Advertise job to women for sex—interview—offer $—only step left is hiring

—Attempted murder requires specific intent to kill [Ancio]

·  B/c statutory interpretation (above)

·  And may be guilty without any unlawful act; therefore fault element may be solely intent

—s 7 requires subjective foresight of death [Logan]

·  Slightly lower constitutional bar than Ancio ruling

·  Considering social stigma, must be same as 229(a)(i)

—Factual + Legal impossibility same thing and no defence; only imaginary crimes don’t count [Dynar]

·  Never would have laundered the proceeds of crime

·  Unknowingly push dead body into h20 (intent but no AR)

Incomplete Crimes: Conspiracy & Counselling

—Actus Reus + Mens Rea [Root]:

·  (1) Intention to agree; (2) Completion of the agreement; (3) Common unlawful design/offence (s 465)

·  Mens rea = genuine agreement; if need knowledge of certain circumstances for offence, MR = belief

·  MR usually inferred from fact of agreeing

—Agreement can be conditional; don’t need ID [Root]:

·  Maybe if conditions are outside accused’s control, would be mere negotiation

·  Don’t need to know ID of 2nd party

—Counselling = solicitation or incitement [Root]

·  AR requires active induce; not mere description

·  MR subj. including recklessness (conscious disregard)

·  Incitee may initiate conversation, and reject advice

—Impossibility no defence conspiracy [Dynar]

Defences: General

·  Crown must disprove any EE BARD

·  If Crown proves guilt BARD: means that BARD accused did not act in SD (for example); if jury has RD on EE of defence, means that Crown has not disproven BARD

·  (1) Crown didn’t meet case; (2) prevents proof of EE; (3) true defence/excuse/justification

—Must have an air of reality [Cinous]

·  One reasonable inference? Assume credible & reliable

—MO standard infuses characteristics to more accurately represent RP according to those facts [Nwanebu]

·  Youth, gender, age, education, race, experience

·  E.g. legit distrust of police affects ability to perceive reasonable alternative

—May consider “rolled up defence” for SI [Robinson]

·  Reject individual defences (probs based on objective considerations) but don’t throw out evidence;

·  Evidence as whole may leave RD on MR SI

Defences: Mistake of Law

—Genuine misconception of law ≠ moral culpble [Howson]

·  Refused to give car back after towed; IF “colour of right”

—Could apply to probation/negate MR [Dougherty]

·  Can’t “wilfully” violate parole; didn’t know being drunk passenger was offence

Defences: Mistake of Fact & Consent

—Consent likely vitiated if weapon involved [Hancock]

·  Where intention to cause serious bodily harm, vitiate consent à weapons also outside scope of consent

·  If established that one party intends and causes serious bodily harm, Crown doesn’t have to prove “w/o consent”

·  Pipe—intended to “poke”—claims consent

—M of F in sex assault req’s victim to lie [Ewanchuk]

·  AR = (1) touching (2) sex nature (3) w/o consent (subj.)

·  MR = (1) intention to touch; (2) knowing/WB/reckless to lack of consent; (3) by words or actions from victim

·  Mistaken belief of consent requires (1) belief that victim communicated consent; (2) reasonable steps to ascertain

Defences: Self-Defence

JUSTIFICATION: challenge wrongfulness of act

·  (1) Believe reasonably force or threat; (2) subjectively for purpose; (3) reasonable in circumstances (s 34)

·  (1) accused or 3rd party, allows for M of F; (2) prevents retaliatory hit

·  (3): nature of threat, imminence, other means available, role in incident, weapons, size/age/gender, history of relation, proportionality

—Don’t need immediate imminence; MO to make RP in that person’s circumstances [Lavallee]

·  E.g. cycles of violence means women may reasonable perceive no other option; can anticipate episodes

·  Shot BF in back—“I will kill you tonight”—SCC RE expert testimony (CA said no)

—E.g. not subj. for purpose of defense (2) [Antle]

·  Didn’t reasonably believe she constituted threat

·  Calls ex whore—she taps head—punches face/grab wrist

—Reasonable in circumstances includes murder; MO standard; don’t weight the niceties [S(H)]

·  15 yo—abusive dad—killing mom—gets gun—rural Alta

Defences: Necessity

·  E.g. break into house b/c freezing; CL defence

—EXCUSE: concede wrong, but excuse; moral involuntry

—(1) Clear/imminent peril [MO]; No reason alternative [MO]; Proportionality [Obj.] [Perka]

·  #3: harm inflicted based on what RP would foresee (e.g. drive into building, RP foresee ppl in it or no?)

—Can’t raise if you create emergency; all elements ON REASONABLE GROUNDS [Latimer]

·  (1): “verge of transpiring and virtually certain”

·  (1) no imminent peril; (2) reasonable alternative; (3) harm inflicted = death

—May be open for homicide [Latimer]

Defences: Duress

·  E.g. robbery b/c of death threats; emerg. circum. caused by threats from som1 forcing you to do offence

—Principles use s 17; parties get CL [Paquette]

·  Robbery—bystander killed—driver claims duress

—s 7 moral involuntariness req’s striking immediacy + presence elements [Ruzic]

·  S 17 breaches s 7 b/c allows ppl who acted involuntarily to be declared criminally liable;

·  Underinclusive b/c immedsiacy & presence req’s excludes threats of future harm

·  Belgrade—trafficker—threat kill mom—Athens-TO

—Harmonize s 17 + CL, except list for principals [Ryan]

·  s 17: (1) threat death/bodily harm (2) believe carried out (3) not part of conspiracy/crim org

·  CL: (1) no safe avenue (2) close temporal (3) proportion

·  Now: (1) explicit/implicit threat present or future, accused or 3rd party [MO]; (2) reasonably believe carried out [MO]; (3) no safe avenue [MO]; (4) close temporal b/w threat and perception of completion (5) proportion b/w threat + harm inflicted equal or less than [MO] (6) not part of crim org or conspiracy where accused knew [incl reckless] that threats/coercion to commit offence possible. Remember excluded offences

—Available for murder? [Aravena]

·  “A per se rule which excludes duress in all murder cases doesn’t give the highest priority to sanctity of life, but rather, arbitrarily, gives highest priority to one of the lives placed in jeopardy”

Defences: Intoxication

·  Blocks MR; generally only for specific intent

·  Mild: no defence; fail air of reality

·  Advanced: very high intoxication; can’t form specific intent; go to general intent landing (or acquit if only SI) [murder à manslaughter]; Crown disprove BARD

·  Extreme: possibly knock out GI (voluntariness), but s 33.1 says no acquit for violent offence; accused est. BoP

—Affects ‘common sense presumption’ that intend natural consequences; high bar; infer capacity from action [Daley]

·  Drove home—walk around house—try to get in while drunk—wake up w/ blood all over—convicted 2nd DM

Defences: Provocation

·  s 232 (1) offence indictable 5+ years (could be directed at 3rd party); (2) RP [MO] would lose self-control; (3) suddenly provoked; (4) provocation caused act; (5) reacted before time to cool [Subj]

—If expecting provocation, can’t succeed [Tran]

·  Ex keeps keys—expects wife new bf—opens bedroom—stabs bf—Charron J precludes honour killings

Defences: Mental Disorder

·  Barrier to MR; result in NCRMD discharge; MD must CAUSE person to not understand N/Q or know wrong

—Low bar to be fit, high bar to be unfit for trial [Whittle]

·  Req’s inability to: [understand nature/object] [possible consequences] [communicate with counsel]

·  No analytical reasoning ≠ unfit; may hold irrational beliefs but still understand consequences & communicate

—Crown must wait ‘til after trial to raise MD [Swain]

·  Affects accused’s right to control defence; Crown to wait until all EE proven (unless defence opens door)

·  BUT, ensures MI ppl not in prison; public safety

—Accused must disprove sanity on BoP [Chaulk]

·  16(2) violates presumption of innocence, but s 1 saves

·  McLachlin J: doesn’t violate; Wilson J: not saved

—Excludes self-induced states [Lesann]

·  No ‘transitory’ states; no concussions; Q of LAW

—Can’t understand N/Q vs knowing wrong [Lessann]

·  NQ: whether capable of foreseeing and measuring consequences of their act; know what they’re doing (knew she would die?)

·  Wrong: whether capacity to understand act wrong by societal standards; NOT disagree w/ society; think society would approv

·  Behaviour before/after, motiveless crime may help establish

—Requires absolute discharge if not sig. risk [Winko]

Defences: Automatism

·  If psych blow: acquittal; but if external/reoccur, MD-linked automatism and borrow s 16 designation

—Onus on accused, BoP; Internal + Cont. Danger [Stone]

·  If claim automatism, must assess whether credible that caused by external “psych. blow”, or due to internal causes and whether continuing danger

·  If internal & continued risk à classify as MD, NCMRD

·  Goes to involuntariness, not unconsciousness (BoP)

—Look to hereditary nature for internal cause; reoccurrence of trigger [Luedecke]

·  “Sexsomnia”: accused’s family had history of sleep walking; trigger likely to reoccur (drunk/overtired/sleeping beside girls)

·  Route through s 16 NCRMD for policy reasons (trigger)

·  (1) involuntary act (2) caused by ext. event (3) unlikely to reoccur (4) could have cased RP to do same

·  Overtired—dazed—past history—expert evidence

Sentencing

·  s 718: denunciation, deterrence (specific + general), separation, rehabilitation, reparations to victim + community, promote responsibility

·  s 718.1: proportionate to gravity + responsibility

·  s 718.2(b): parity principle

·  s 718.2: aggravating/mitigating (see Code)

Can’t force plead guilty—accept they did all EE

·  Abs discharge: no minimum punishment, no conviction, “in best interest of accused and not contrary to public”

·  Conditional dischrg: turns absolute when fulfill conditions

·  Probation: s.731 when conditionally discharged, fined, imprison < 2yrs, conditions to probation

·  Restitution: s. 738 a or C discharge, make up for damage and losses, Fines: 734(2) only if satisfied able to pay

·  Suspended sentence: Jail term but suspend jail part if meet all conditions

·  Conditional sentences: 742.1 except offences (1) w/ min imprisonment and the court (2) imposes imprison < 2yrs and (3) satisfied serving in community would be consistent with fundamental purpose of sentencing, MAY order serve sentence in community

·  LOOK AT CC for man min.!

·  Ruhl, employee $$ friends, A: huge abuse of friend trust, planning, multiple M: 1st time, guilty plea—6mon jail, 3yr probation

·  McConnell, hotel knife assault, bipolar now taking meds, MI affects moral blameworthiness 3 yr probation

·  Langthorne, serious robbery and kidnap, A: likely to reoffend, specific deterrence, 4.5 + 4 +3 yrs for each charge, first 2 from same incident so serve concurrently total 7.5, other consecutive separate incidents. Totality principle

Aboriginal Sentencing

·  s. 718.2(e): Alternative measures considered w/ particular attention to circumstances of AB offenders in sentencing

·  Gladue, manslaughter but consider abuse, alcohol/drug—Courts must look at all factors when sentencing Ab offenders, if not error of law—restorative justice aim, over incarceration (35% W, 25% M)

·  Ipeelee, long term A offender breached supervision order

-  Don’t need causal link between historical factors and offense; but make connection

-  DUTY to apply Gladue to ALL offenses

Hamilton, Court may consider factors for other groups like systemic/historic bias

Constitutionality (mandatory minimums)

+: Specific and general deterrence, faster sentencing, consistency, denunciation

-: Eliminates discretion, weak link deterrence, put judicial discretion in hands of prosecutor

·  s. 12—claims of cruel and unusual punishment

-  Test: gross disproportionality b/w sentence and act, higher than would’ve gotten with s. 718

-  Strike down minimum as a whole

·  2 ways to argue (1) actual facts of your case (2) hypothetical offender that is reasonable

·  Smith: look to gravity of off, personal characs of offender, particular circs of case, actual impact of sentence imposed THEN see Lamer J’s “spring break” hypothetical

·  Ferguson: must strike down unconstit MM, not make exemption

·  Murder -- Latimer: MM not grossly disprop for murder, serious degree of criminal responsibility; not out of step w valid sentencing

·  Possession of prohibited firearms – Nur: MMs too broad for just possession, think expired licenses (but Ferguson: MM is ok for manslaughter w firearm

Charter: Section 10(b) - Right to Counsel

·  (1) Recognized as police officer; (2) detained (RP?)

·  Duties on police to 1) reasonable opportunity to reach counsel w/o delay, and 2) cease questioning [Manninen]

·  Cops must facilitate access to legal aid (he asked) [Brydges]

·  If impossible to reach lawyer, still cease questions [Prosper]

·  No right to presence of counsel during interrogation, or reconsult counsel unless “objectively observable” change (change in jeopardy, non-routine procedures, other change affecting informed decision to cooperate) [Sinclair]

·  Can waive, but must have “true appreciation” [Clarkson]

Section 11(b) - Tried within a Reasonable Time [Morin]

·  Start period = time of charge; PC = 12/14 mnth; SC = 24

·  Complexity; waiver (if D asks delay, Crown ask explicit)

·  Defence conduct: ask imdte disclosure? Neutral=don’t care

·  Crown conduct: late disclosure? (D can’t have rsnbly antcpt)

·  Prejudice to the accused: (1) Full answer/defence (rare) e.g. witness croaks; (2) Personal prejudice—liberty [custody/bail conditions] & consequences from delay per se (anxiety, can’t get job) [Morin clarifying Askov]; remedy = stay

Section 8 - Search and Seizure; Charter s. 24(2) Remedy

·  Warrant needs R&P grounds under oath, that offence committed & evidence found at place; judicial official [HvS]

·  Difference b/w risking strangers overhearing and the state overhearing; reasonable expectation in hotel room [Wong]

·  Informational privacy: nature/place/manner/seriousness of crime—electricity consumption (here: info √, manner x) [Plant]

·  Spatial privacy: present at search? possession/control; ownership; historical use; ability to regulate access; subjective expectation; objective reasonableness [Edwards]

·  Passengers in a car no RE [Belnavis]

·  Subj expectation and obj reasonableness most important; normative analysis; social norms (text message) [Pelucco]

·  Privacy as secrecy/anonymity—IP address—link to ID of person—no abs. right to anonymity [Spencer]