Criminal Law

Patrick Healy – Winter 2004

Introduction

Basic Principles

Principle of Legality

Frey v. Fedoruk [1950]Crimes must be known to law.

R. v. Pharmaceutical Society (Nova Scotia) [1992]Vague = no guidance legal debate

R. v. Heywood [1994]Doctrine of overbreadth created

Presumption of Innocence

Woolmington. v. D.P.P. [1935]The accused is presumed innocent.

Elements of Guilt

Conduct

Acts, omissions and states of being: voluntariness

R. v. King [1962]Actus reus requires willpower.

Rabey v. R. [1980]Automatism is unconscious involuntary act – always a defence

R. v. Parks [1992]Automatism not actually a “defence” – part of actus reus

R. v. Stone [1999]Automatism = impaired consciousness– accused must prove

R. v. Lucki [1955]No legitimate purpose to sentence someone who can’t control action

R. v. Wolfe [1975]Intent lacking therefore can’t uphold charge

R. v. Ryan [1967]Protagonist wannabe can’t argue involuntariness.

Kilbride v. Lake [1962]No other option available – can’t be criminally responsible

Acts

Marshall v. R. [1969]No control over persons possessing so not guilty

R. v. Terrence [1983]Measure of control is essential element of possession

Re Chambers and the Queen [1985]Possession evidence enough to go to jury

R. v. Jobidon [1991]Victim’s consent no longer valid once knocked unconscious

Bolduc and Bird v. R. [1967]Patient consented to peeping tom in doc’s office

R. v. Cuerrier [1998]HIV-infected liar not guilty of assault – consent valid

R. v. Lohnes [1992]Shouting obscenities doesn’t count as disturbance

R. v. Burt [1985]Convicting car owner by default violates the Charter

Omissions and states of being

Fagan v. Commissioner of Metropolitan Police [1968]This omission = assault

R. v. Miller [1983]Omitting to put out his own fire = arson

Moore v. R. [1979]Omitting to identify himself to cop got Moore in trouble

R. v. Thornton [1991]HIV+ blood donor guilty

Thornton v. R. [1993]HIV+ blood donor guilty, accept analogy to medical procedure

R. v. Browne [1997]Can only recklessly breach a duty clearly made/binding intent

People v. Beardsley [1907]Neglected duty must be legal duty, not just moral ob.

Causation

Smithers v. R. [1978]Kick outside de minimis range, remember thin skull rule

R. v. F. (D.L.) [1989]Connection between dangerous driving and not seeing victim

R. v. Harbottle [1993]Holding legs down = enough for 1st degree murder

R. v. Cribbin [1994]Cribbin guilty for leaving victim to drown in his own blood.

Fault

Notions of fault

R. v. City of Sault Ste. Marie [1978]Strict liability between absolute and mens rea

R. v. Wholesale Travel Group Inc. [1991]Focus not on moral turpitude, regulatory

R. v. Chapin [1979]Strict liability offence – accused can show due diligence

Intention and knowledge

R. v. Steane [1947]Steane collaborated with Nazis under threats.

R. v. Hibbert [1995]Purpose = intention, not desire

R. v. Buzzanga and Durocher [1979]Intention to create furor not promote hatred

R. v. Chapin [1979]Ignore this, repeated by mistake.

R. v. Docherty [1989]Where knowledge = mens rea, no knowledge = defence

R. v. Théroux [1993]Mens rea of fraud outlined here

Recklessness and wilful blindness

Sansregret v. R. [1985]The difference between recklessness and wilful blindness

R. v. Currie (1975)Wilful blindness only where accused should’ve pursued inquiry

R. v. Blondin (1971)Jury should’ve deliberated on recklessness or wilful blindness

R. v. Sandhu (1989)Recklessness has both subjective and objective elements.

R. v. Duong (1998)Wilfully blind to risk of harbouring a murderer

R. v. Parker [1977]English test for recklessness seems exclusively objective.

R. v. Caldwell [1981]And, English seem to conflate recklessness with wilful blindness

Negligence

R. v. Tutton and Tutton [1989]S.C.C. split over what test for criminal negligence

Waite v. R. [1989]Subjective element of crim. negl. not deliberate assumption of risk

R. v. Anderson (1990)Reasonable doubt that conduct was criminal negligence

Marked Departure Test

R. v. Creighton [1993]Negligence in criminal matters requires marked departure

Constructive liability

R. v. Desousa [1992] Underlying offences can’t be of absolute liability to qualify

R. v. Creighton [1994] (revisited)Only need foreseeability of harm for manslaughter

R. v. Krushel (2000)Criminal harassment: actus reus sufficiently blameworthy

R. v. Barron (1984)Reversed by C.A.: how would Creighton have changed result?

Motor Vehicle Reference (1986)Substantive review ok, no prison for absolute liabil.

R. v. Cancoil …. (1986)Treat provision as strict liability, due diligence available

R. v. Wholesale Travel Group [1991]Need heavier burden on accused in strict liabil.

Simpson v. R. (1981)Subjective knowledge is minimum standard for murder

Vaillancourt v. R. [1987]Constructive murder violates the Charter.

R. v. Martineau [1990]Murder = subjective foresight of death beyond reasonable dbt.

Sexual assault

Pappajohn v. R. [1980]Honest though mistaken belief voids mens rea

Sansregret v. R. [1985]Wilful blindness to the risk that fear vitiated consent

R. v. Chase [1987]Sexual assault: is sexual context visible to reasonable observer?

R. v. Darrach [2000]Rape shield probisions in Code upheld

R. v. Ewanchuk [1999]Implied consent not recognized for sexual assault

Extensions of guilt

Participation

R. v. Kulbacki [1966]Accused had authority to tell girl to drive safely

Dunlop and Sylvester v. R. [1979]Evidence doesn’t point to rape participation

R. v. F.W. Woolworth Co. (1974)Inadvertent aid ok so long as purpose is not crim.

Gamble and Nichols v. R. (1978)Evidence available to go to jury on aiding and abet.

R. v. Logan [1990]Must have subjective intent for attempted murder

Canadian Dredge and Dock [1985]Corporate crim liability – identification doctrine

Inchoate offences

R. v. Ancio [1984]Attempted murder = nothing less than specific intent to kill

R. v. Sorrell and Bondett (1978)Equivocal act may not be enough to prove attempt

R. v. Deutsch [1986]LeDain’s distinction between attempt and mere preparation

United States v. Dynar [1997]Can find guilt for attempting the impossible

R. v. Celebrity Enterprises Ltd. (No. 2) [1977] Not unlawful if can’t be convicted for it

R. v. Gralewicz [1980]Case on interference with lawful union activities

R. v. Dungey (1979)Attempt to conspire to commit another offence is not an offence

Aspects of Innocence

Automatism

R. v. Stone [1999]Trying to set the record straight on automatism

Intoxication

R. v. Bernard [1988]Recklessly getting drunk = mens rea for general intent

R. v. Daviault [1994]Charter allows accused to show extreme intoxication defence

R. v. Robinson [1996]How to instruct juries on intoxication defence

Mistake of fact [Not covered on 2004 final exam]

R. v. Hess; R. v. Nguyen [1990]

R. v. Ladue [1965]

R. v. Kundeus [1976]

Duress

R. v. Ruzic (April 20, 2001)Immediacy requirements for duress too severe

Self-defence

R. v. Lavallée [1990]Must physical assault be in progress to apprehend death? No.

R. v. Petel [1994]Past threats are relevant in assessing apprehension.

R. v. Malott [1998]We must overcome stereotypes about battered women.

Necessity

Perka v. R. [1984]Necessity defence is an excuse, not a justification.

R. v. Morgentaler, Smoling, and Scott (1985)Necessity defence unavailable here.

R. v. Latimer (2001)No air of reality to defence of necessity (3 requirements)

Provocation [Not covered on 2004 final exam]

R. v. Hill [1986]

R. v. Thibert [1996]

Entrapment [Not covered on 2004 final exam]

R. v. Mack [1988]

Introduction

The "general part of the criminal law" (as opposed to "special part"): phrase that became current in the 1950s.

  • In broad terms, to say that this course is about the general part of the criminal law is to say that it's about principles that cut across most of the criminal law.
  • Supreme source of criminal law is the Constitution: until 17 April 1982, this meant that the power to create criminal law was reserved to the exclusive jurisdiction of the Parliament of Canada, 91(27).
  • What does it mean to say that a matter is properly criminal, that it lies within the jurisdiction of Parliament?
  • Supreme Court and Privy Council tried to determine what was appropriately deemed a matter of criminal law.
  • We've reached a point where virtually any prohibition is deemed to be a valid criminal law provision.
  • Important: there is a difference between criminal law in its strict sense and "penal law". "Penal law" can describe any form of statutory prohibition that entails a sanction.
  • Under our theory of constitutional law it permissible for provinces to enact penal offence for the purpose of enforcing legislation that is otherwise within provincial jurisdiction.
  • Criminal law refers exclusively to provisions enacted by the Parliament of Canada by virtue of its power under 91(27).
  • The division of powers is only one part, but since 1982, the Charter is also an important constitutional source of criminal law.
  • In this course, we're only likely to touch upon s. 7 of the Charter at length.
  • S. 7 talks about the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
  • When s. 7 was first considered by the courts, the Government of Canada argued that this was concerned with procedural due process.
  • In 1985, SCC in Motor Vehicle Reference decided a number of things that profoundly affected our view of the criminal law:
  • Most important is that s. 7 is not restricted to matters of procedural due process.
  • Thus courts can use s. 7 to review the substantive criminal law.
  • Conclusion in this reference: for offences of absolute liability (no requirement for proof of fault), it is impossible for federal and provincial legislator to impose a prison term as a sanction.
  • This had momentous consequences: there was a succession of challenges to laws arguing that there was something discordant between the law and the offence.

So, when talking about Constitution, the two important points are:

  1. Valid criminal law can only be derived from federal legislation enacted using s. 91(27) power.
  2. Section 7 provides a basis for substantive review of Canadian Criminal Law.
  • Criminal Code is not the only STATUTORY source of criminal law.
  • Judicial decisions are also a source.
  • However, it is now (since Frey v. Fedoruk in 1950) a matter of constitutional law that courts cannot create new criminal offences. There no longer are common law offences except contempt of court.
  • To say that all the offences that we have must be created by Parliament in reliance on s. 91(27) is not the whole story.
  • The courts can create new defences.
  • It should be open to the courts to find new grounds on which people should not be held liable.
  • This has had good and bad effects...
  • Healy's good examples:

-1984: creation of the defence of necessity.

-1988: SCC said there is such a thing as a defence of entrapment. Entrapment is a claim whereby accused can show there was abuse of process and ask for stay.

  • Healy's bad example:

-1994: Daviault case, defence of extreme intoxication.

-Up to the time that this case was decided, intoxication was only a defence to an offence of specific, not general, intent.

-Assault was always viewed as an offence of general intent.

-From this, it followed that intoxication was not a valid defence.

-Trial judge said the degree of intoxication was so extreme as to eliminate responsibility in committing the act. He thereby expanded the intoxication defence based on the extremity of the defendant'sintoxication.

-In SCC, there was not one word about general intent, and they decided, essentially, that s. 7 gives us a right to acquittal for self-induced states of extreme intoxication.

-If you're intoxicated, you are impaired and you can't be responsible for your actions.

Argument underlying this position actually makes sense: it is a principle of fundamental justice that persons should not be convicted of criminal offences if they are in some way blameless for what they have done. It should be open for courts to reinterpret the meaning of innocence in matters of law.

  • There is also the defence of duress: person acting under the immediate threat of harm.

History of Criminal Law

  • Common law was an important source of criminal law at the time of Confederation.
  • Criminal law in various parts of BNA was not the same.
  • Sir John A. Macdonald wanted criminal law to lie within the jurisdiction of Parliament given the countries magnitude.
  • He thought that the criminal law could be seen as a unifying institutional structure.
  • 1869, statute passed to consolidate disparate parts of pre-Confederation criminal law.
  • 1892: Parliament enacted Criminal Code.
  • Over the years it has grown and been revised. Every session of Parliament brings its changes.
  • The one we have today is untidy and messy. Much of it is anachronistic and dubious on policy grounds. Large parts are unnecessarily complex.
  • A revamp of the Criminal Code is unlikely to happen in the near future.

The Structure of Defences [Extremely Important]

  • Every offence has a structure and for purely schematic purposes, Healy wants to describe it as:
  • Where a PROHIBITED ACT (ACTUS REUS)is committed with a prescribed element of FAULT, those are the constituent elements of GUILT. If these are proved, a conviction will follow.

AR + F = G (unless non-G)

  • What does it mean to prove it? What does it mean to require the element of voluntary conduct (physical or material element)? What about criminal conduct in the form of omission?
  • The notion of fault also raises questions.

Basic Principles

Principle of Legality

  • Foundational idea: the principle of legality is a criterion that must be fulfilled in respect of every offence.
  • Legality: In order for there to be a valid declaration of criminal liability...

-The criminal law cannot have retroactive application

-11(b) of Charter

-Criminal principles must be sufficiently precise

Frey v. Fedoruk [1950] S.C.R. 517
FACTS / Frey was a peeping tom on Fedoruk’s land. Fedoruk chased him off with a butcher’s knife and called the police, who arrested Frey without a warrant. Frey sued for damages for false imprisonment.
ISSUE / Can someone be imprisoned for something (being a “peeping tom”) that does not fall within a category of offences known under the criminal law?
HELD / No. Frey’s appeal allowed.
RATIO / People can only be prosecuted for offences known to the criminal law (either in the Criminal Code or by the authority of a reported case).
NOTES / Conduct that does not fall within any category of criminal offences does not become criminal simply because it provokes violent retributive action in others.

Void for Vagueness and Overbreadth

  • Before Charter, void for uncertainty was a well-recognized challenge to by-law offences.
  • Courts here had recoiled from its availability in the case of other types of criminal sanction.
  • Since Charter, the SCC has determined that any penal law be declared unconstitutional if it is too vague. Challenges can be brought under s. 7. The court will then use s. 1 to determine whether the vagueness is prescribed by law.

R. v. Pharmaceutical Society (Nova Scotia) [1992] 2 S.C.R. 606
FACTS / The twelve accused were charged with conspiracy to prevent competition unduly under s. 45(1)(c) of what is now the Competition Act. Nova Scotia judge quashed the charge on the basis that the word “unduly” made the law too vague. N.S. Appeal Division overturned the ruling.
ISSUE / Is the impugned section of the law void for vagueness?
HELD / No. Appeal dismissed.
RATIO / A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.
NOTES /
  • The “doctrine of vagueness” is a principle of fundamental justice (fair notice to citizens, and limitation of law enforcement discretion).
  • The threshold for finding a law vague is relatively high.

R. v. Heywood [1994] 3 S.C.R. 761
FACTS / The accused was convicted in 1987 of two counts of sexual assault. In ’89, he was charged with vagrancy for being a person convicted of a sexual offence and found “loitering at or near a school ground, playground, public park or bathing area” contrary to s. 179(1)(b) of the Criminal Code.
ISSUE / Is this restriction on liberty in accordance with principles of fundamental justice? Is the impugned section of the law constitutional?
HELD / No. Crown’s appeal dismissed.
RATIO / The law violates the principles of fundamental justice because it applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review. It restricts liberty far more than is necessary to accomplish its goal.
NOTES /
  • The SCC creates a “doctrine of overbreadth” in this case.
  • Application to schools and playgrounds is reasonable, but all public parks and bathing areas is overly broad.

Presumption of Innocence

  • This is also an extremely important criterion applying to everything in criminal law.
  • If prosecution fails to prove guilt beyond reasonable doubt, accused is innocent.
  • The House of Lords asserted this principle only relatively recently (1935)

Woolmington. v. D.P.P. [1935]A.C. 462
This case stands for: / It is not for the prisoner to establish his innocence but for the prosecution to establish his guilt. The accused is entitled to the benefit of the doubt. While the prosecution must prove the guilt of the prisoner there is no such burden on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt. He is not bound to satisfy the jury of his innocence.
  • Remember AR (actus reus) + F (fault) = G (guilt)
  • In a murder case, AR consists of proving of action with the intention of causing death.
  • Prosecution case cannot be built on the testimony of the accused. Otherwise, this would run counter to the principle against self-incrimination and presumption of innocence.
  • Old rule: judge would instruct jury, "A man intends the natural and probable consequences of his actions." Healy: this rule is fundamentally and categorically wrong.

Elements of Guilt

Conduct

Acts, omissions and states of being: voluntariness

Voluntariness

R. v. King [1962] S.C.R. 746
This case stands for: / There can only be an actus reus where there is willpower to do an act whether the accused knew or not that the act was prohibited by law.
Rabey v. R. [1980] 2 S.C.R. 513(concerned a disassociated state)
This case stands for: / Automatism means an unconscious involuntary act and it is a basic principle that absence of volition in respect of the act involved is alwaysa defence to a crime.
R. v. Parks [1992] 2 S.C.R. 871 (concerned sleepwalking)
This case stands for: / Rather than being a “defence”, automatism is actually part of the actus reus component of criminal liability because it is a subset of the voluntariness requirement.
R. v. Stone [1999] 2 S.C.R. 290
This case stands for: / Bastarache preferred to define automatism as a state of impaired consciousness, rather than unconsciousness, in which an individual is capable of action but has no voluntary control over that action. He also held that the accused had to prove any defence of automatism on a balance of probabilities.
  • A lack of voluntariness is not the same as a lack of mens rea. There can be a voluntary act without there being mens rea.
  • Involuntariness is a more fundamental defect than lack of mensrea. There is not even an actus reus. You cannot be said to “have shot” someone if doing the act was beyond your control (such as when a stronger person forces your hand).
  • The law holds people to account for acts that they think they can control. This is the basic definition of “voluntary” that circumvents any controversies between proponents of determinism vs. free will.

R. v. Lucki [1955] 17 W.W.R. 446 (Sask. Pol. Ct.)
FACTS / In icy conditions, a motorist ended up on the wrong side of the road and collided with an oncoming car.
ISSUE / Is the motorist liable for the accident?
HELD / No. Not guilty.
RATIO / A person who by an involuntary act for which he is not to blame gets onto the wrong side of the road is not guilty under the section in question.
NOTES /
  • What conceivable purpose can legitimately be served by imposing a sentence on someone who can't control his actions?

R. v. Wolfe [1975] 20 C.C.C. (2d) 382 (Ont. C.A.)
FACTS / Wolfe had good reason to not want the complainant in his bar. The complainant came to the bar and refused to leave. As Wolfe was calling the cops, the complainant punched him and Wolfe turned in a reflex action and struck the complainant in the head with the telephone receiver. Wolfe was charged with assault causing bodily harm.
ISSUE / Is Wolfe liable for the injuries that the complainant suffered?
HELD / No. Appeal allowed; trial decision overturned.
RATIO / As a finding of fact, the trial judge characterized the receiver incident as a reflex action on Wolfe’s part so the necessary ingredient of intent is lacking in order to uphold this charge.
R. v. Ryan [1967]40 A.L.J.R.488 (Aus.H.C.)
FACTS / Ryan wanted to emulate the protagonist of a novel and rob a service station in order to play the lottery, win, and repay the attendant handsomely. As Ryan tied up the attendant, the latter made a sudden movement and Ryan’s loaded and cocked gun went off killing the attendant.
ISSUE / Is Ryan entitled to a new trial since the jury was not instructed on the issue of involuntariness?
HELD / No. Appeal dismissed.
RATIO / If the applicant, being conscious of the situation in which he had put himself, pressed the trigger as a result, however spontaneous, of the man whom he was threatening making some sudden movement, it could not be said that that his action was involuntary so as to make the homicide guiltless.
Kilbride v. Lake [1962]N.Z.L.R. 590 (S.C.)
FACTS / Appellant drove his care in the City of Auckland and parked it. When he parked and left it, the car had the necessary “warrant of fitness” stuck to its windshield. A cop came by and saw the car without this required warrant and issued a ticket to the appellant for violating the law, the actus reus of which entailed permitting a vehicle to be on the road and not carrying the necessary warrant of fitness.
ISSUE / Is Appellant liable for the offence of not carrying a warrant of fitness, which disappeared in the appellant’s absence?
HELD / No. Appeal allowed; conviction quashed.
RATIO / If there is no other course of action open to a person, he or she cannot be criminally responsible for an act or omission. This is distinct from any issue of mens rea.

Acts