Table of Contents
Crime Control/ Due Process
Roach: Due Process and Victims' Rights Article, 1999
Development of Due Process
Common Law Governing Confessions
Boudreau v The King, 1949 SCC p 116 [Admissibility of Confession depends on if its Voluntary]
Confessions and the Right to Counsel
Clarkson v The Queen, 1986 p 118 SCC [D must be aware of what she is saying and appreciate the consequences of saying it]
R v Manninen, 1987 p 123 SCC [The right to counsel must be accompanied by an opportunity to obtain counsel]
Wrongful Conviction
R v Marshall, 1972 [Racism]
R v Marshall, 1983 [Racism]
USA v Burns and Rafay, 2001 [Can’t extradite ppl to face the death penalty bc unconstitutional]
Duty of Counsel
R v Kaufman, 2001 [Prosecutors should be impersonal]
R v S (F), 2000 [Prosecutors should be impartial]
R v Delisle, 1999 [Defence counsel should not presume guilt in their client]
Burden of Proof
R v Oakes, [presumption of innocence protects fundamental liberty and human dignity, essential to society committed to fairness]
R v Lifchus, 1997 SCC [“Reasonable doubt” cannot be used colloquially]
Sources of Criminal Law and Basic Criminal Law Limitations
Switzman v Elbing Supreme Court, 1957 (Quebec)[After enactment of charter, unconstitutional for provinces to enact “criminal purpose” legislation]
R v Morgentaler, 1993 [Abortion regulation is a criminal law, which is federal jurisdiction under crim law power(91.27)]
Reference re Validity of s. 5(a) of Dairy Industry Act (Canada) 1949: [3 P’s test set out by Rand J] (does not restrain fed power)
RJR Macdonald Inc v Canada AG 1995 [Fed can prohibit advertisement of tobacco + require health warnings]
R v Hydro Quebec, 1997 [Can fed use crim law power to protect environment yes]
Reference re Firearms Act (Can), 2000 [Firearms regulation is of federal jurisdiction]
Common Law Defences/Offences
DEFENCES:
Amato v The Queen, 1982 [Common law defences can arise with the change in society’s values]
OFFENCES:
Frey v Fedoruk, 1950 [Criminal law should be legislated by Parliament]
R v Jobidon, 1991 [The necessary conditions or boundaries of criminal liability may be determined by common law]
United Nurses of Alberta v AG Alberta, 1992 SCC [Contempt of court only possible common law offence]
R v Samir, 1994 [Common law offences do not exist and can’t be applied retroactively]
R v Paice 2005 p 944, [Interpret code w/ common law to hold: one cannot claim self-defence in consensual fist fight that ends in death]
Vagueness, Overbreadth and Certainty
R v Nova Scotia Pharmaceutical Society, 1992 SCC [laws are not too vague if can be interpreted]
Canadian Foundation for Children, Youth and the Law v Canada (AG), 2004 [Reasonable corrective force against children is legal; Vagueness = when people don’t know when they’re approaching the boundaries of criminal sanction]
Criminal Law: Intrinsic Limits
Why do Limits Matter?
John Stuart Mill: (Harm Tangible + Clear; Must concern others)
Devlin: (Should have crimes based on morals, to enforce societal values)
Hart (Crimes should only be based on harm principle)
Malmo-Levine, 2003 SCC [The harm principle is not a fundamental principle of justice; courts can strike down laws where the punishment is grossly disproportionate to the crime]
Labaye, 2005 SCC [The harm principle plays a large role in interpreting criminal law, not absolute standard]
R v C(M), 1995 ONCA [Harm principle does not justify overriding charter rights; Preventing a specific sexual act (anal sex) based on age is unconstitutional]
Sentencing/ Overview of Crimes
Mewett and Nakatsuru “Conviction and Punishment”
Principles of sentencing
R v M (CA) 1996, SCC p 981 [Trial judge chooses “just and appropriate” sentence. CA should not interfere unless marked departure from standard]
Actus Reus: Omissions (Inaction)
R v Browne, 1997 ONCA p 319 [Must be undertaking of binding legal duty to be held liable for an omission]
R v Thornton, 1991 ONCA p323 [Common law duties to refrain from acting do not exist (probably)]
Other: Status Offences
Actus Reus: Consequences and Causation
R v Winning 1973 p 338 [Your actions must have factually caused the consequence]
Smithers v The Queen, 1979 SCC p 339 [Standard for causation in manslaughter and 2nd degree murder is de minimis]
R v SRJ, 2008 [Mutual participation in unlawful activity holds both liable for consequences]
R v Reid & Stratton 2003 p 352 [Intervening acts may break causation]
R v Nette, 2001 SCC p 363 [rephrase Smithers Test: beyond de minimis = significant contributing cause of death = little higher]
R v Mayben, 2012 SCC [Is it foreseeable that intervening act COULD occur? If so, original actors liable]
Actus Reus: Voluntariness
R v King [If you do not voluntarily ingest a drug, you are not culpable for the acts that follow]
R v Larsonneur 1933 p 311 [Case that ignores voluntariness component of AR = incorrect]
Kilbride v Lake 1962 p 312 [If you do not do something voluntarily, you cannot commit a criminal act]
R v Ruzic 2001 p 315 [Defence of involuntariness = complete acquittal]
Mens Rea: Intent, Knowledge and Consequences
Gaunt and Watts v The Queen [An offence will be presumed to have MR by Common Law unless statute clearly dictates otherwise]
R v Buzzanga and Durocher 1979 ONCA p436 [Wilfully = Intentionally; Intention is conscious desire of consequences or moral certainty of consequences]
R v Steane: [Confused intent w/ motive]
R v Hibbert, 1995 SCC p435 [Duress does not negate the MR element of a crime]
R v Théroux, 1993 SCC p442 [Knowledge = Intent; Recklessness satisfies mens rea]
R v Sansregret, 1985 SCC p447 [Recklessness is knowing the risks of the activity (consequences) but proceeding in spite of it; Wilful blindness is the undertaking of an act without inquiry to remain ignorant when there’s reason to inquire]
R v Briscoe, 2010 SCC p448 [Wilful blindness can substitute for actual knowledge when knowledge is a component of themens rea]
Constitutional Considerations
R v Desousa SCC [Law does not require subjective intention in relation to consequences of an otherwise blameworthy act]
R v Hundal [Dangerous driving under s 249 does not require a subjective awareness of risk]
R v Finta 1994 SCC [accused must be aware of conditions which render his actions more blameworthy than domestic offence]
Beaver v The Queen, 1957 SCC p491 [Knowledge = intent][Mistake of Fact]
R v Goudin, 1994 BCCA [Must have subjective MR for the unlawful act and objective foresight for consequences]
Crime Control/ Due Process
Roach: Due Process and Victims' Rights Article, 1999
Parker: Two models of criminal process
- Crime control(Assembly Line operated by police/prosecutors to produce guilty plea)
- Focused on efficiently getting truth, accuracy and guilty criminals over individual protection
- Dominant before the Charter in 1980s
- Any due process concerns before this time were mainly done by Parliament, not the Supreme court
- Miranda rights did not exist; self incrimination was still legal even if you were not told you could remain silent
- Right not to self incriminate was limited to not testifying against yourself in trial
- Courts against reading of Miranda rights
- Unfairly obtained evidence was still admissible in court (did not have to be voluntary)
- We were not protected against unreasonable search and seizure by police
- Halting crime was put ahead of protecting individual rights
- Canadian courts focused on discovering truth about factually guilty over fair treatment of accused
- RCMP police had open-ended powers to conduct drug or custom searches
- Favour social interest to repress crimes despite unlawful invasion of individual interests
- Due process(Obstacle course where defence lawyers argue for violation of accused’s rights)
- Focused on ensuring the accused have a fair trial, that evidence is reliable, fairness + quality control
- Came about after the 1980s
- After the 1980s, due process concerns were mainly handled by the Courts
- Due process conviction lessons come from wrongs of past (ie. Punishing innocent)
Development of Due Process
- First draft of charter diluted fed gov’s legal rights, but criminals still did not have right to know rights
- In October 1980, there was a draft of the Constitution but it still hinted at the crime control model of criminal process
- e.g. The right not to be subject to search or seizure, while sounding like it protects individuals, was still left to judgement of the police who are backed by writs
- Affirmed due process in the abstract while enabling substantial crime-control limitations on these rights
- Canadian Bar Association suggest that judicial supremacy is fundamental to due process because the lawyers wanted judges to have the last word, not parliament.
- Legislative supremacy and crime-control values of common law is fundamental to crime control, specifically the law of evidence, because it allows legislature to determine admissibility of evidence = altered by arbitrary action of legislature or public official.
Common Law Governing Confessions
Prior to 1982, judges use common law to exclude from evidence confessions not proven to be voluntary
- Originally this was for risk of incorrect confession, but eventually came to encompass protection of individual rights
Ultimately, the Crown must prove that the statement was completely voluntary.
After Boudreau, Focus shift from having voluntariness due to reliability, to requiring it due to treating suspects fairly.
Boudreau v The King, 1949SCC p 116 [Admissibility of Confession depends on if its Voluntary]
- Est. essential question to admissibility is whether confession is voluntary
- The warning that the accused can be silent but anything they do say will be held against them = not necessary (ie. its okay to lack due process, but must be voluntary confession
- Evidence is admissible if voluntary, not obtained by fear of prejudice or hope of advantage held of by authority
- If not voluntary = casts doubt on truthfulness
Confessions and the Right to Counsel
- Development of common law governing admissibility of confessions and s 10(b) of the charter: everyone has the right on arrest or detention to retain and instruct counsel w/o delay and to be informed of that right
- 10(b) shifts the playing field of common law regarding confessions because removes emphasis from reliability of confession and emphasizes rights of accused
- If it is an EMERGENCY situation and the police are compelled to act immediately, right to obtain counsel may be mitigated
Clarkson v The Queen, 1986 p 118 SCC [D must be aware of what she is saying and appreciate the consequences of saying it]
Facts: While highly intoxicated (medically proven), Clarkson denied legal council + gave an incriminating confession to the murder of her husband.
Decision: The judge ruled her confession inadmissible due to the intoxication and lack of counsel.
Reason: Wilson J
- In this case though, the police breached s.10(b) of the Charter in not giving her reasonable time to consult counsel. She was not in a state of mind to reasonably deny legal counsel. Did not appreceiate what was at stake.
- Wilson J displaces operative mind test (is accused coherent enough to understand his own words?) to favour “test of awareness of consequences”
- Awareness of consequences uphold concern over fair treatment of accused incompatible with intoxicated admissibility
McIntyre J Concurring: Not necessary to consider charter. Non-operative mind would not only be unaware of utterances but also consequences. The two tests overlap.
Test to determine if statement is admissible by intoxicated person:
- Was the accused aware of what she was saying? and
- Was she aware of the consequences of making the statement on the particular occasion in question?
Note: Wilson J states primary rationale of rejection of admissibility of statement of intoxicated person = somewhat involuntary and unreliable. This seems not quite due process, still values finding TRUTH over FAIRNESS. But law of confessions is struggling to incorporate “awareness of consequences of making statement”.
R v Manninen, 1987p 123 SCC [The right to counsel must be accompanied by an opportunity to obtain counsel]
Facts: Manninen arrested + read his rights to silence and counsel. Asks for lawyer but police continue questioning, whereupon Manninen self incriminates.
Decision: 10(b) imposes 2 duties on police, aside from informing of rights 1) give accused reasonable opportunity to exercise right to retain and instruct counsel without delay 2) cease questioning until detainee has had reasonable opportunity to retain counsel
Manninen's right to counsel under s.10(b) of the Charter was infringed because counsel was never produced for him even though he was told he had the right to counsel
Reason: He was detained and could only obtain counsel when given the opportunity by the police. They must stop questioning until he has this opportunity
Wrongful Conviction
- We care because: person is wrongfully imprisoned (loss of liberty, suffering), the person who is guilty is still free, harm to repute of administration of justice, undermines confidence in criminal justice system
- Death Penalty controversy:
Pros:
Role of Retribution
Deterrence / Cons:
Inconsistent w/ sanctity of human life
Death penalty deprive legal system of redressing wrongfully convicted
R v Marshall, 1972 [Racism]
Facts: Pratico and Chant see Seale get stabbed by Marshall. Chant approached by Marshall who says “look what they did to me”. Marshall says him and Seale were stabbed by the men.
Issue: Did he commit the murder that he was charged for?
Decision: Yes
Reason: The judge did not mislead the definition of reasonable doubt. The verdict of manslaughter should be excluded from jury.
R v Marshall, 1983 [Racism]
Decision: New witness came forward and old witnesses recanted statements. Judge blamed Marshall for miscarriage of justice because Marshall did not “admit” he was committing robbery.
Review: Commission reviewed case, harshly criticized police, prosecution, defence, trial judge and appeal judge. The police had “tunnel vision”, racist views against Aboriginals; the prosecutor held onto key evidence; the defence was incompetent/racist; the trial judge is probs the least responsible; the appeal court = too conservative in errors + blamed Marshall
USA v Burns and Rafay, 2001 [Can’t extradite ppl to face the death penalty bc unconstitutional]
Facts: 2 Canadians were extradited to the US for trial. They were convicted of murder.
Decision: Canada gave them to US if they agreed not to make them face death penalty
Held: The extradition (giving of an alleged criminal to another authority) of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Charter.
Duty of Counsel
- Crown must be neutral and objective, can advocate strongly but must be fair (can’t argue with witness)
- The jury naturally favours the crown – they should not exploit that
- To be fair, the nature of the job pits you against defence lawyer, creates institutional pressure to convict, colours perspective
- Ramifications of the adversarial system:
- The judge does nothing to “advance” the case
- Victims are bystanders
- Every piece of evidence must be tested to find what is true
- Why Defence counsel must be strong and competent
- Equality and fairness
- Rule of law demands propriety and accuracy
- Justice system is not only about the truth (fair, due process)
- Rule of decency: everyone deserves someone who is looking out for them
- Role of Defence: Principles
- Flexibility: not honour-bound to do everything the correct way
- Client loyalty
- Client confidentiality: Allows counsel to do job, privilege against self-incrimination
- Loyalty to the court: cannot do whatever he can to get client off, cannot mislead the court
R v Kaufman, 2001 [Prosecutors should be impersonal]
Facts: Appellant found guilty of attempted murder.
Issue: Did Crown counsel input personal opinion, inflammatory remarks and extreme language?
Decision: Appeal allowed, new trial ordered
Reason: Shares personal conviction w/ jury, hurt credibility of witnesses and guilt of accused, unfairly prejudicial, improper expressions of opinion, led to speculative inferences on unproven facts
Ratio: The use of personal opinion (is legally inadmissible) and conviction leads to speculative inferences on unproven facts which impairs the appellants right to a fair trial
R v S (F), 2000 [Prosecutors should be impartial]
Facts: Crown did not act properly in court
Issue: Did A receive fair trial? Decision: New trial
Reason: improper and prejudicial conduct of crown counsel. Opened with “I am going to convince you the accused is guilty”. Made references btw himself and the jury , “we have to live with this sad result”. Inappropriately sarcastic, flippant and disrespectful.
Ratio: The prosecution must be dispassionate and impartial – seeking justice – not convictions
R v Delisle, 1999 [Defence counsel should not presume guilt in their client]
Facts: Appellant guilty of grievous bodily harm, second lawyer did not believe his client
Issues: Was appellant’s right to fair trial violated by his lawyer?
Decision: New trial
Reason: lawyer did not believe client, did not attempt to meet witness
Role of defence lawyer = ensure rules are made and applied correctly; undermines theory that everyone is entitled to fair treatment and benefit of doubt
Ratio: Lawyers do not play judge, the rights are determined by the court, will result in new trial
RATIONALES FOR DELISLE
1)The improbable may be true! The accused may be innocent.
2) The adversarial system requires a strong defence to get at the truth.
3) Undermines due process concepts, and theory that everyone is entitled to fair treatment and benefit of doubt
4) Ensures the legitimacy of verdicts
Burden of Proof
- The standard of proof beyond a reasonable doubt intertwined with the presumption of innocence
- Burden of Proof requires:
- Obligations for reasonable doubt/conviction is on the crown (not on defence)
- Crown must prove/disprove every material element in the case to BYD
- Substantiated by s 11(d) charter: “the person has the right to be presumed innocent” + respect for human liberty
- Not “any doubt”/certainty because
- Higher standard = fewer wrongful convictions but demands unreachable standards of perfection
- Too many would be let free (when combined with need for jury unanimity)
- Burden of Proof can be reversed to rest on accused but = violation of charter. Upheld as long as its in “reasonable limits” (s 1)
- Why is burden of proof useful:
- Est. ground rules for proving dispute and give triers of fact a framework to assess evidence and resolve uncertainty
- Have evidentiary and procedural ramifications. The person bearing the burden of proof must put for sufficient evidence to tip it in his favour, before opponent is bound to do anything at all
R v Oakes, [presumption of innocence protects fundamental liberty and human dignity, essential to society committed to fairness]
R v Lifchus, 1997 SCC [“Reasonable doubt” cannot be used colloquially]
Facts: Trial judge told jury to use “Reasonable doubt” in ordinary, natural everyday sense = SCC held this was an error