Robert Leckey 1999

Criminal Summary 13

Criminal Summary

Forms of penal liability

· Sault Ste. Marie 319: Dickson J.: presumption that no true crime without mens rea

· Mens rea requires (1) intention or recklessness or (2) knowledge of facts or wilful blindness

· Mens rea presumed for criminal offences unless Parliament expressly says otherwise [clearly pre-Charter]

· Public welfare offences lie in a field of conflicting values

· Generally held revulsion against punishment of the morally innocent

· Justifications for absolute liability: (1) protection of social interests; (2) administrative efficiency [not enough to justify under s. 1 of Charter per Wilson J. in Singh]

· Three categories of offences:

Requiring mens rea, positive state of mind such as intent, knowledge or recklessness
Strict liability with defence of (a) all reasonable care; or (b) mistake of fact
Absolute liability with no defence that free of fault

· Motor Vehicles Reference 347: section 7 of Charter considered:

· no imprisonment for absolute liability offences because that deprives of liberty (s. 7); s. 1 may save provisions relating to legal persons

· Wholesale Travel is a mess that permitted prison for strict liability

Principle of legality

Laws must be published in advance

· no common law offences (except contempt of court)

No vagueness

· Jobidon 13: fight taken outside a bar: charged with unlawful act (assault) manslaughter

· Gonthier J. finds ‘consent’ in s. 265 def’n of assault includes common law limits that no consent to actual bodily harm

· Sopinka J. dissenting: special exception made for no consent to death; no common law offences not in Code; instead, argues consent ceased when Haggart lost consciousness

· NS Pharmaceutical Society 45: Gonthier J. doctrine of vagueness: lessen competition “unduly”: vagueness:

· raised under s. 7 or s. 1 (prescribed by law)

· overbreadth goes to minimal impairment under s. 1

· intelligibility

· unconstitutionally vague if so imprecise as not to give sufficient guidance for legal debate

· Heywood 52: Cory J.: loitering for previous convict: strikes down provision as overbroad, violating s. 7; but Gonthier said specifically in Pharmaceutical Society that overbreadth is not an independent doctrine but only applies under s. 1 Oakes analysis

· Gonthier J. dissenting: reads in malevolent intent

Presumption of innocence

· Woolmington v. D.P.P. 81: capital murder: Viscount Sankey: trial judge erred: (1) compulsory assumption of malice based on act of killing; (2) reverse onus on Accused to prove alleviation satisfactorily on balance of probabilities

· duty of prosecution to prove guilt or presumption of innocence runs throughout web of English Criminal Law like a golden thread

· Reverse onus struck down in Oakes (Dickson C.J.) but justified under Charter s. 1 in Chaulk re presumption of sanity under Code s. 16 (Lamer C.J., Wilson J. dissenting that not justifiable, let jury decide)

Attribution of responsibility: action

· no actus reus unless result of willing mind at liberty to make a definite choice or decision - Taschereau J. in R. v. King

· Dickson J. in Rabey: absence of volition in respect of the act involved is always a defence to a crime

· Lucki: bad judgement acquits driver of traffic offence because he had no mens rea; J. should have found driver had no actus reus

· Wolfe: assault causing bodily harm: hotel-owner acquitted for reflex action hitting man with phone receiver: could have argued no actus reus or no mens rea

· Ryan 250: shoots by reflex in hold-up situation: fully conscious man put himself in situation with finger on trigger of loaded gun levelled at a man

· problem: was there really contemporaneity of act and mind?

· Kilbride v. Lake 252: absolute liability requires vehicle permit to be displayed: absolute liability requires voluntary act: none here

Voluntary acts

· Hutt: prostitution: ‘solicit’ requires persistence and ‘public place’ means more than officer’s car

Prostitution Reference 184: Dickson C.J. upholds law against communicating for purpose of prostitution in public place; Wilson & L’Heureux-Dubé JJ. find it not beyond minimal under s. 1: public place too broad; no indication that the behaviour caught is actually bothering anybody

· Constructive possession Code 3(4)(b)

· Marshall 193: charged with constructive possession: requires knowledge and consent: simply by continuing in the car or by passing the joint, Marshall didn’t consent; passing it on was reflex reaction like squib in Scott v. Shephard

· Terrence 196: Ritchie J.: constructive possession: stolen car: agrees with Ont. C.A. that constructive possession = knowledge + consent (requiring control): dismissed appeal of quashed conviction

· Re Chambers and the Queen 198: Martin J.A.: right to grant or withhold consent to storage of drug in her room gives necessary control over the drug sufficient to constitute 3(4)(b) consent

· mere presence of illegal drug not enough if no control: Colvin and Gladue mere visitors consorting with possessor of morphine not ‘control’

· Bolduc and Bird 203: Hall J.: indecent assault: defence of consent: fraud wasn’t related to consent to the act

· Spence J. dissenting: indecent assault perpetrated was not the act consented to; posits sort of indirect constructive assault

· Lemieux 207: unlawful break and enter: constructive: requires (1) act and (2) mens rea; given the homeowner gave consent and this was a police trap, no act

· Johnson 209: Dickson J.: upholds Parliament’s creation of constructive break and entry offences

· Lohnes 213: McLachlin J.: disturbance in or near a public place: act must effect overtly manifested disturbance which interferes with ordinary use by public of the place

· society law will tolerate mental annoyance; wary of extending criminal law

· Burt 218: Sask. Vehicles Act provision struck down: punishing registered owner of vehicle for excessive noise: no vicarious responsibility: must be some act provable against the person

Voluntary omissions

· law does not deal with purely moral obligations - Carpenter C.J. in Buch v. Amory Mortgage

· Bentham (aid where possible without personal prejudice) vs. Macaulay (wary of punishing any omission)

· Child and Family Services Act creates provincial offence for failing to report suspected abuse through professional duties but not offence for any person

· Quebec Charter of Human Rights and Freedoms imposes positive obligation to assist

· Fagan v. Metropolitan Police 227: mere omission cannot amount to assault: necessary contemporaneity of actus reus and mens rea satisfied by continuing act theory: mens rea superimposed on existing act

· Bridge J. dissenting: sees no further action to constitute assault

· Legal duties imposed by Code:

S. 215 legal duty to supply necessities
S. 216 legal duty to use reasonable knowledge & care in administering medical treatment

· Miller 229: Lord Diplock: fire damage with intent or recklessness as to damage: Miller falls asleep with lit cigarette:

· Trial: duty theory: duty arises upon creating obvious risk;

· Appeal: continuing act theory

· Problem: offence requires intent or recklessness; Miller never troubled to turn his mind to danger; conviction wrongly upheld

· Moore 231: wilfully and unlawfully obstruct a police officer in his duties: refusing to say name once bicycle offence committed in plain sight of policeman: conviction upheld

· Dickson J. dissenting: no statutory or common law duty to give name; fundamental right to silence and not to self-incriminate; presumption of innocence; rejects reciprocal duty theory (that since police have duty to investigate, citizens have duty to self-identify); specific statutory offences for failing to give name belie notion that general duty exists at common law

· Thornton 238: donating HIV-positive blood to Red Cross:

· Ont. C.A.: common nuisance contrary to s. 180: unlawful act or failure to discharge legal duty endangering lives, safety or health of public: Galligan J.A. draws on tort law to find common law duty not to injure neighbour (Donoghue v. Stevenson): unlawful act

· S.C.C.: Lamer C.J.: S. 216 imposed a duty of care (in administering medical treatment): 4lines long

· Beardsley 241: manslaughter: omission of aid to loose woman Blanche taking morphine: no legal duty owed to her: acquitted (moral statements made: no duty owed to mistress as to wife)

Objective Offences

Robert Leckey 1999

Criminal Summary 13

Common intent for accessories s. 21(2)

Careless use of firearms or ammunition s. 86(2)

Criminal negligence s. 219

Criminal negligence causing death s. 220

Criminal negligence causing bodily harm s. 221

Homicides s. 222

Dangerous driving s. 249(1)(a)

Dangerous driving causing bodily harm s. 249(3)

Dangerous driving thereby causing death s. 249(4)

Wilful damage to property s. 430

Arson s. 433

Robert Leckey 1999

Criminal Summary 13

Causation

· Michael 258: wilful murder: child unintentionally administers poison that mother wanted given to baby: Accused’s original intention continued: conviction upheld

· Smithers [1978] 259: manslaughter: Dickson J.: Cobby died from vomitting, epiglottis failed to function:

· Manslaughter: act of assault must cause the death

· Causality: medical evidence and common sense given how fast death followed the kick

· Causation is for jury, not limited to expert medical evidence

· Crown need only establish kick was contributing cause of death, outside de minimis range

· No intention to cause death or injury required for manslaughter: only intention to deliver kick

· Thin skull: Crown must only prove Accused caused vomitting, not also Cobby’s malfunctioning epiglottis

· Unlawful act may not be objectively dangerous at all but still guilty of manslaughter if death follows: G.A. Martin (later J.A.) quoted

· Blaue 265: taking victim as found requires whole person: JW entitled to refuse blood transfusion without interposing additional cause: manslaughter upheld because stab wound remained an operative cause of death

· D.L.F. 268: McClung J.A.: causal link between s. 249(3) dangerous driving and the bodily harm is Smithers, outside de minimis

· no need for precise act by act analysis; look to result

· suggests in obiter that Smithers is a test of sweeping accountability, requiring not even objective foreseeability of death, susceptible of Charter s. 7 challenge

· notes that common understanding of ‘cause’ suggests more than mere identifiable contribution

· Harbottle 271: first degree murder: Cory J.:

· ‘substantial and high degree of blameworthiness’ required for aggravated first degree murder, once murder established

· substantial and integral cause test [higher standard than Smithers manslaughter because of gravity]: very active role, usually physical, in the death

· SEE CONDITIONS FOR s. 231(5) First Degree Murder - p. 272

· Cribbin 273: manslaughter: punched and kicked victim of more vicious attack: Arbour J.A.: upholds manslaughter Smithers test as lower and distinct from Harbottle first degree murder

· constitutional challenge to Smithers defeated:

de minimis no more vague than substantial cause or other alternatives
Refers to Creighton, McLachlin J.:

· thin-skull eliminates distinction in manslaughter between foreseeability of death and foreseeability of bodily harm

· guilt of manslaughter = unlawful dangerous act, with objective foreseeability of risk of bodily harm more than trivial or transitory, and contributing cause of death beyond de minimis range

· constitutional under s. 7 because Crown must prove both act (causation) and fault (objective foreseeability)

· Smith [1959] 279: murder: intervention of unfortunate consequences: original wound still an operating and substantial cause

Meanings of fault

· “state of man’s mind is as much a fact as the state of his digestion” - Bowen L.J.

· Hundal 293: fault requirement for dangerous driving: Cory J.:

· subjective: what Accused thought; may draw inferences as to what Accused must have thought; cannot ask what Accused must have realized if he had thought about it - Stuart

· objective test for negligence: marked departure from standard of care of reasonable person

· Théroux 294: fault requirement for fraud: McLachlin J.:

· mens rea unrelated to Accused’s moral values: inquiry into subjective appreciation that certain consequences would follow

· subjective awareness of consequences can be inferred

· Mulligan 295: intent to murder: Martin J.A.: even in assessing subjective intention, jury may accept or reject Accused’s testimony

· D.P.P. v. Smith 296: manslaughter overturned in favour of capital murder: Viscount Kilmuir:

· presumption that man intends the natural and probable consequences of his acts

· objective foreseeability of grievous bodily harm leads to murder

· Parker v. The Queen: Australia rejects D.P.P. v. Smith as bad law

· Criminal Justice Act rejects D.P.P. v. Smith as bad law

Mental states

· Intention (desire?) or Knowledge (WB?)

· Steane 415: acts likely to assist the enemy with intent to assist the enemy: guilt as to specific intention must be proven: presumption of innocence

· would have been better argued as duress

· Glanville Williams points out that, without duress, intent alone cannot distinguish between man helping enemy to save his family and man helping enemy to earn a pack of smokes

· Buzzanga and Durocher 419: s. 319(2) wilfully promoting hatred: Martin J.A.:

· fair reading of Accused’s evidence that he did not want to promote hatred against the French (which include himself)

· here wilfully doesn’t mean recklessly or voluntarily; wilfully means with intention towards consequence, promoting hatred

· mens rea was already present without word ‘wilfully’; must mean intention

· intention may mean knowledge of certain or substantially certain result; knowledge of highly probable outcome is mere recklessness

· subjective intent upheld, linked to subjective appreciation of the certainty of result

· this narrow reading of ‘wilfully’ saved s. 319(2) in s. 1 analysis in Keegstra

· Docherty 426: care and control of vehicle while drunk became underlying offence for breach of probation order under s. 740(1): Wilson J.:

· wilful failing to comply with probation requires high degree of mens rea: no absolute liability

· when knowledge is a component of requisite mens rea, absence of knowledge is good defence

· Théroux 430: fraud: McLachlin J.: accused committed deceitful act but believed no harm would result: inference of subjective knowledge that the property of another is at risk is sufficient mens rea: recklessness