IS THERE A CHARTER BREACH?

Oakes test (BOP):Is violation saved under Section 1?

1. Pressing and Substantial Objective (crucial definition!)

2. Rational Connection (prove cxnbtwn means/objective)

3. Minimal Impairment (violate more than necessary?)

4. Proportionality(v prop to good? Fails if benefits outweighed)

Sharpe: child porn; self-created images/writing of imagination fails #4: 1) materials affected low on harm continuum; 2) level of intrusion too high – law violates expressive rights

Section 7 test (BOP):Violate principle of Fund Justice?

0.5 Vagueness (law can’t be too vague – not often a problem)

1. Arbitrariness (is there cxnbtwn means/objective?) - RC

2. Overbreadth (applies too far) - MinImp

3. Gross Disproportionality (violation v benefit?) – Prop

Heywood: ban from all “parks”, no time limit, for sexual offence  too broad;Bedford:s210 “bawdy-house”, s212(1)(j) “avails”, s213(1)(c) “comm in public place”overbroad+gross disprop, actual purpose = sex work out of sight, not prevent harm

ESSENTIAL ELEMENTS OF OFFENCE

Identity (BARD): Sheppard:assault; evidence but credible+reliabl witness testimony if reasonable doubt re element, acquit

Charging Sheet: Saunders:charged traf heroin; was other drugs  particulars must be proven – exceptions: 1) date, time; 2) ♔ can amend but can’t prejudice accused on basis of testimony

Interpreting Statutory Elements

  • Strict/narrow interp in favour of A; if still ambig, purposive interp. Pare: s214(5) 1degif “while committing” temp/caus link btwnaggcrime+murder suffices (severity OK bc purpose)
  • Read definition sections ofCC for ambig terms + ordinary meaning. Clark: living roommasturb.s173 “publ place” OR “intent insult”. ACQUITTED: not rly “publ” via s150
  • If ambig, presumption of subj fault standard for MR. ADH: s218 child abandonment, “abandons, exposes” + no DoCreq = subjacquit: ADH didn’t know toilet baby alive

ONUS AND BURDEN OF PROOF

Evidence: 1) Direct (eyewitness/documentary) – potential reliability and credibility issues; 2) Circumstantial (reqs inference) – reliability,credibility, and mistaken inference issues

Onus - ♔ has BOP; presump innocence: Charter s 11(d)

  • PoI prevents reverse onus for crimoffences. Oakes:possession; NCA s8 = reverse onus w/ presumption of poss for purposes of traff NCA s8 NOT OK. ratl connection problem:no logical cxnbtwn fact (sm#drug) + presumption (users=traff)reverse onus exceptions: eg B&E intent to commit crime
  • BUT PoI acceptable for defence in Keegstras 319(3)(a) hate speech defence if estab truthmin.imp s 11(d), saved by s1.

BARD Standard:Lifchus “reasonable doubt” based on reason, common sense - logically connected to evidence or absence of evidence; beyond “likely”/“probable”; not “certain”

  • JHS:stepfather sexual assault; BOP on ♔ to prove guilt, TJ’s direction “any reasonable doubt must be resolved in favour of the accused” is accurate

Directed VerdictsCharemski: inconcl evidence that A killed V even with some good evidence. If there are other reasonable inferences, not proven BARD. Guilt MUST be one reasonable inference, otherwise should acquit (can get directed verdict)

Elevated Threshold: BARD applies to witness credibility and each element of the offence, but not each piece of evidence. KylloLubkeyToupin: 1deg charge, powerful circum evidence but also Vetrovec witness (“improvement in memory”, delay in coming in) need strong corrob evidence, not BARD here

ACTUS REUS

Generally: 1. conduct voluntary? 2. Was law in force at time?

Omissions: only punishable if legal duty (ss215-17, or CL). specific omission offences “self-contained” in CC eg duties after accident. General omission offences greater scope, egcrimneg

Brown: promise to care for drug partner s217 “undertake” legal duty;Undertaking must be explicit/clear, binding intent

Concurrence: MR must be concurrent w AR.Cooper: blackout while strangling; death“continuing transaction” of MR.

  • Bottineau: child neglect to death; innocent act = crim if don’t change despite knowing possible conseqs. Sufficient to prove accused knew possconseq at some point in course of conduct

Causation:Basic threshold for offences w/ causation reqs: legal causation = more than factual causation (but not far)

Smithers: kickto stomach, victim died: choke on vomitDe minimistest: ♔ only needs to show a “significant contributing cause”(“not insignificant” to “significant”) for manslaught. Thin skill principle: must take victim as you find them

[causationrearticulated in:] Nette: standard not unconstitutionalbcobj foresightreq for manslaughter, so low threshold won’t punish morally innocent.

[intervening acts]Maybin: punched accused unconscious, bouncer death hit. T: all acq. CA: acq bouncer only Interv act test = “significant contributing cause to death”? approaches to consider:1.Was interv act reasonably foreseeable? (bouncer=yes) see: tide v tsunami. 2.Was interv act independent factor that “severed” impact of A’s actions? If no, dir link to A actions and still morally culpable (bouncer= responsive to A’s action)

MENS REA

What is the fault standard for the offence? How to infer MR?

Subjective Requirement Presumption of subj standard in crim offences [ADH]; may also be explicitly stated in legisl (“willfully”)

  • Motive helps explain but generally NOT essential element
  • Intent is exercise of free will to produce result – mens rea

General intent: performance eg possession

Specific intent:heightened mental element eg +traffic

* mostsp intent offences “double intent”, OR some “single intent” w heightened mental element eg murder (Tatton)

Actual Knowledge: Act likely to -> consequences is sufficient for intention; disting from intentional nature of conduct.

  • Buzzanga & Durocher: Fr lang school h8 speechs281.2(2)(now 319(2)) “willful promo of h8red” -If the legisl reads neutrally,assume that it reqs subj MR. “willful” = 1) conscious purpose or 2) foresaw certainty to result and did so anyway.
  • Bottineau; Tennant & Naccarato:“common sense inference”: usually know predictable conseqs (*look at evidence tho)
  • Hibbert:A forced to help principal under threat of bodily harm s21(2) aid/abet common intention intent/knowledge =/= desire. Common intentionto commit unlawful act is enough for criminal liability if there are foreseeable and probable results; defence of duress may excuse AR but MR is still there.

Wilful Blindness – deliberate choice not to make inquiries

Legal equivalent to actual knowledge. Look to motive, testimony, and reasonable expectations; Briscoe: A drove to crimsc, weapon, held V and telling to shut up. WB imputes knowledge; not considering WB is legal error, new trial

Subjective Recklessness – see risk and still take chance

Not legal equiv of act knowledge. Sansregret: tested by conduct. Can’t override defence of mistake of fact even if unreasonable honesty

  • Buzzanga: MR generally satisfied as long as the outcome was intended/achieved thru recklessness BUT "willfully" in provision implies that recklessness not enough for necessary MR, unless recklessness also mentioned as option.
  • Lamb: making available child porn. Issues: 1. ID? – evidence not strong enough 2. Recklessness enough?For possession, SCC says recklessness not available. Making available is more srs offence - Parl at least applies same standard, so need ACTUAL intention/knowledge. Even if A proven to commit AR, necessary intention not proved BARD

NON-SUBJECTIVE FAULT STANDARDS

ABSOLUTE LIABILITY (FULL AR) --> STRICT LIABILITY ---> FULL MR

Strict Liability: objective MR “reasonable person” test

Regulatory Offences – enacted under statute, not “true crimes”

More flexibility re: BARD b/c regulations dir at prevention of future harm not crimprohib; deterrence effect – lots of ppl caught quickly. Fault based on reasonable care standard since dir at consequences of conduct. (Cory J, Wholesale Travel) Liberty (s7) rarely engaged, no criminal record.

City of Sault Ste Marie: pollution charge under s32(1) Ontario Water Resources Act. “cause”/”permit” lang doesn’t denote full MR or abs liabl.Abs liability denies A any defence. Reg offences should only req strict proof of leg intent. Strict liability flips onus, requires party to give explanation.

Due Diligence defence(onus on accused to prove on BOP)Test:

1.Did A believe mistaken set of facts which if true would render act innocent? 2.Did A take all reasonable care to avoid it?

Officially Induced Error – only allowed “ignorance of the law” argument. Jorgensen via Tétrault: Accused must prove 6:

- error of law/mixed law-fact
- considered legal conseq
- advice from approp official / - advice reasonable
- advice erroneous
- acted in reliance on advice

Tétrault(car reg) didn’t do these, fails defence of off ind error

Driving Offences – accident > civil liabreg offence MVA > Crim:

Dangerous driving > DD cause death > crimnegl > murder

Objective Fault standard most often used for driving offences.

Hundal – SCC says DD doesn't req subj awareness of risk, BUT

Beatty: A over centre line, killing 3. Normal driving, no mech failure, A must have blacked out/fallen asleep. Momentary act of negligence sufficient for DD cause death in s249(4)?Reconsiders MR req for DD. Modified objective test for negl-based crimes:

1. AR – BARD that A acting in accordance to words of legisl? Manner of conduct, not consequence – yes, dangerous driving

2. MR–BARD that conduct was a marked departure from reasonable person standard in those circumstances – can consider subj state of mind. Momentary lapse doesn’t support MD standard – reasonable, not perfect driver – no, acquit

** Roy: snow/slippery/fog, turned on HW w/o RoW, killed 1. No memory, DD cause death? committing AR doesn’t on its own = marked departure. Can be resp in civil/reg but not under crim

Charter Limitations:Obj Fault Dangerous Driving

Re BC MVA: s94(2) creates abs liab offence for driving under prohib/susp of licence whether or not u know. Some level of fault is reqd prior to loss of liberty by an accused person, prison not avail for abs liab offence; can’t punish morally innocent (Chars7)

Charter Limitations: Homocide

Felony Murder (eg robbery w weapon causing death)

Vaillancourt: A committed armed robbery w knife, +1 brought gun, A took bullets out bc didn’t want gun. +1 shot, killed 1.S212 (now 229) felony murdermurder if meant to cause BH likely to cause death and is reckless. UNCONSTITUTIONAL:nothing less than subj foresight of death req for conviction of murder, bc high punishment

Martineau: B&E, +1 deliberately shot V: culpable homicide in s213 violates principle that punishment must be proportionate to moral blameworthiness eg intentional infliction of harm

murder should be reserved for intentionally causing death or inflicting harm likely to cause death

DeSousa: s269 assault causing bodily harm: subjective MR req for underlying offence, but if meet subj or strict liability fault req of unlawful act, 2nd part can have low obj fault standard

excludes abs liability offences; regulatory offences can count here.

Unlawful Act Manslaughter

Objective fault req for manslaughter doesn’t violate s7

Creighton: inject cocaine into friend who died from overdose. unlawful act mainslaughter via traff drugs.A had capacity; conv

McLachlin (maj):s 222(5)(a) 3 part test for manslaughter:

1. AR – committed underlying criminal offence BARD

2. MR – established through inference from facts: objective reasonable person standard for foresight of risk of nontrivial BH

3.Was accused capable of apprec risk flowing from conduct? – if yes, moral fault established and must convict; if no, acquit

  • Lamer CJ (min): consider subj factors egexp w drugs. If too strict abt “reasonable person”, effect = abs liab for negligence

PARTIES TO OFFENCES: 21(1)(a), (b), (c)

Principal Offender s21(1)(a)actually commit offence

♔ can offer multiple theories if uncertainty to exact role of A

Thatcher: 1deg; either principal or aid/abet. jury can convict accused if every member of jury BARD that A was either principal or aid/abet; don’t need unanimity about which applies

- principal, aider/abettor are legally equivalent, equally culpable

Pickton: must tell jury that A can’t escape liability if others liable for same offence (s21). Co-principal liability codified in s21(1)(a)

Aiders21(1)(b)did something “for purpose of aiding”

Abettors21(1)(c) encouragement(or Counsellors22(1) solicit)

3 key requirements for aiding:

1.AR: Offence was committed (you aided an offence)

2.AR: Accused did something for purpose of aiding

3.MR: Know crim intentions of principal & intent to help

Briscoe: WB enough for MR as aider/abettor if AR committed

Mere presence is not enough: Presence can be aid/abet onlyif accompanied by other factors. Dunlop & Sylvester: met rape gang and V earlier; delivered beer to site but left after 3min more needed to convict as aid/abet eg encouragement, keeping watch, presence that hinders interference with crime, prior knowledge of the offender’s intention (court doesn’t want to criminalize mere omissions unless legisl clear)

  • Nixon:sr officer in charge of lockup resp for presence at time of assault failure to act in acc to legal duty is sufficient to convict as party to offence as aider/abettor
  • Popen: A conv of infant manslaught: party to wife’s mistreat, but not present on any occasion of mistreatcrimneglpossib charge, but independent from party liability to manslaughter

Recklessness not sufficient for MR in aiding/abetting: Roach: fraud through phone scheme, A thought was legal but was conv of aid/abet  policy concerns = party liability requires highest level of subj MR (actual or WB); recklessness too low. The more peripheral the involvement, the higher the form of subj MR

H(LI): group beating leading to death – murder or manslaught?

  • 2nd way to find joint principals: prior group agreement > req MR > assault likely to cause death > death =murder
  • if intent to cause harm likely short of death OR not specific intent to murder, manslaughter is possible

Counselling: offence doesn’t have to be committed yet. Root: AR: encouraging/inducing. MR: subj desire for person to do offence or recklessness to risk that offence will happen

Group Participations21(2) agree to do A during which someone does B; responsible if knew/ought to have known (obj standard)

** see Martineau: exception is murder/deliberate death **

INCOMPLETE CRIMES

Attempts s24(1) intend commit+purp = carrying out int = guilty

General rule = adopt same MR as substantive offence

Attempted MurderAncio: recklessness not avail in subs offence, so recklessness not avail for attempt. Logan: req subj MR (foresight death), like subs murder & theft

Dynar: $ laund undercover op, factleg impossible. Even where AR imposs, if MR present, attempt can still apply

s 24(2) must get beyond mere preparation, qual. analysis. Deutsch:procurement, offered $ but no hire?“naturalconseq” of actions enough to find MR. Sorrell: where intent otherwise proved, equivocal facts may be proximate enough for offence

Cline: gen principles: 1. MR+AR, crim mostly in intention 2. Evidence of simlr acts ok to est pattern if not too remote 3. Don’t have to wait for defence to raise evidence 4. Not essential that AR crime 5. AR > mere prep 6. When prep complete, next step sufficient to = AR if done for purpose & intent of crime

Conspiracys465 conspires = same punishment as subs offence

Dynar:AR: agreement btwn 2+ ppl to do offence (can infer thru motive, assoc, linked steps). MR: genuine agreement btwn participants (w undercover cop doesn’t count); int to carry out offence = mere neg not enough, details/spec ID of others not necessary (Root). Prosec must prove BARD

CHARTER RIGHTS

Section 10(b)Right to Counselretain and instruct w/o delay, informed of that right upon arrest/detention + right to silence

Manninen: 2 duties imposed on police: 1) must provide reasopp to ret & instr counsel; 2) duty to cease Qs until reasopp

Clarkson: drunk/emotion“no point”Brydges:couldn’t afford: can waive right explicitly or implicitly, but high standard for both – must be clear, unequivocal, informed (trueapprec of conseqs)

Sinclair: exhaust 10(b)?(maj)No const right to counsel during interview,no gen right to reconsultexceptobjobsrvableexceptional change of circs.(min) plain meaning=ongoing right

Section 11(b)Right to Trial within Reasonable Time Morin: 13m earliest trial imp driving. Stay of proceedings if context factors:

1. length of delay (12-14 Prov Ct, 22-24 BCSC) BOP on A

2. waiver of time periods by A (high thresh, must be explicit)

3. reasons for delayeg inherent time reqs, resources

conduct of defenceeg waiver, adjs, motions for change

conduct of Crowneg late disclosure, adjsetc

4. prejudice to A 1) to ability to make full answer/defenceeg delay = evidence gone 2) to A, causing harm eg long pre-tri det

Section 8Search and SeizureHunter:Combinesinvest.Need prior auth by neut party eg judge – warrant on reas/prob grounds (1. Offence commit 2. Evidence there) – must protect privacy rights

Wong: hotel gambling. Recording convo subject to s8 if reasexp of privacy in circumstances. Plant: hydro recs, Calgary public. s8 protects “biographical core of personal info”, consider factors:

- nature of info
- nature of relbtwn releaser of info & asserter of confid. / - place where info obtained
- manner info obtained
- srsness crime investigated

Edwards:gf’s apt;Belnavis: passenger in other’s car;Pelucco:dealer caught via texts on someone else’s phone. Must consider “totality of circumstances”factors:Auth to reg access? Control, Ownership? Hist use? Subj exp of privacy?Obj reasonableness to exp of privacy?none hadreasexp of privacy. (Ed/Bel bcinsuffcontrol, Peluccobcobj expectation not privacy)

DEFENCES

♔ must disprove at least 1 element of defence BARD to strike down. Defences must have “air of reality”. Cinous: test = can ♔ raise reasonable doubt on any elements? If yes, can’t put to jury

consid: subj (A’s percep) AND obj (reas person) components

Nwanebu:Igbo defence of necessity – would objreas person lie? “reas person” can incl some info re: gender, age, exp, edu. NOT intoxication, aggressive personality

Mistake of Fact

Beaver: where A commits AR, but flawed percep negates MR.

Kundeus: traff thought mescaline not LSD: limit to defence exists

 Mistaken Consent– Pappajohn:can raise if A charged w SA.Mistaken belief consent if suffevid by A that A took reas steps in circs known to A at time to ascertain consent.Ewanchukvan job SA: implied/assumed consent not enough for MistFactdefence. Hancock:poke pipe fight: intro weapon to fight vitiates consent

Mistake of Law

Ignorance of law generally not defence.
Howson: “colour of right” defence if A acted on honest but mistaken belief of right to prop. But Jones and Pamajewon:no jurisd on rez?If colour of right not in stat provision, no auth for defence.Dochertydrunk in parked car on probation: if “willful” part of req MR for offence, absence of knowledge can be MistLawdefence

Self-Defence:ss 34(1-2)Modified Objective TestTo succeed, ♔ must not be able to raise reas doubt on any of 3 main reqs:

1.34(1)(a) believe on reas grounds that force/threat force being used against you/another 2. 34(1)(b) act committed for subj purp of protect self/other3. 34(1)(c) act “reas in circs”. Look to factors for #3 in34(2)(a-h): a) nature of force/threat, b) whether other available responses, c) A’s role in incident, d) whether weapon used/threatened, e) physcapabilit of parties, f) prior threats/force in rel, g) proportionality of response (Antle) and h) whether act in response to threat/force that was known to be lawful. Even if first 2 elements made out, def can fail if notreas. Lavallee: shot abusive bf from behind.Can make out self-def in battered women’s syndrome cases based on what reas person in her circs would do. Defence doesn’t req “immediate” threat/force if so. S(H): extends to abusive father situation.