The Crown Must Prove Each Element of the Criminal Code Provision Aswell As the Identity

Written, contain a prohibition and a penalty, and be directed towards a valid public purpose (Margarine Ref.)

The crown must prove each element of the criminal code provision aswell as the identity of the accused (Sheppard) and the particulars of the charging sheet beyond a reasonable doubt (Saunders – cocaine/heroin). The reasonable doubt standard is closer to absolute certainty than a balance of probabilities (Lifchus; Starr).A reasonable doubt is not imaginary or frivolous (Lifchus).

STATUTORY INTERPRETATION

Interpret plain language, context of statute, purpose of law (Clark: “public place” masturbation)
If meaning unclear, use def most favourable to D (Paré: murder “while committing” offence)

EVIDENCE ISSUES

Not a credibility contest. You can disbelieve accused but doubt Crown. (JHS; W(D))
To convict on circumstantial evidence alone, there can't be any other reasonable explanation for evidence on each element (Charemski: bathtub murder)
BARD applies to evidence as a whole (Morin)
Vetrovec witness testimony must be corroborated by other strong evidence (Kyllo: Granville strip)

DIRECTED VERDICT

Must only be some evidence of guilt on each element. Evidence taken to be credible and reliable (Charemski)

ACTUS REUS

Must be voluntary (Ruzic)

Is there a causation element?

1. Factual: “but for” medical (Smithers: punch/vomit)

2. Legal: beyond de minimus (Smithers)/significant contributing cause (Maybin)

Thin skull rule: take them as they come (Smithers)
Intervening act break chain of causation if2nd actwas independent was not a reasonably foreseeable outcome of original act (Maybin: bar fight, bouncer intervenes)

 CHECK IF THERE IS AN ATTEMPT

Omissions create criminal liability only where:

D “undertakes” legal duty to act (commitment made clearly & w/binding intent) (Brown: drug OD)
Statutory obligation (Nixon:police ‘aids’ beating)

Did AR and MR coincide?

AR & MR must be part of 1 transaction (Cooper: blackout while strangling –1 transaction).
Crown needn't identify the exact moment in which MR was formed (Bottineau: starving grandkid)
AR can’t occur before MR (Williams: AIDS – when did assault actually happen?)

MENS REA

Specific v general intent (Tatton)

General: Mental element = to performan act. Does not deal with intent to bring about particular consequences
Specific:Does X to bring about Y or w/knowledge of Y

Proving MR

Motive: More likely to do things intentionally that you have motive to do. You can attach past conduct to motive. Also aids in proving identity.
Inferences from Behavior: people usually intend the natural consequences of their acts. More likely the consequences = stronger presumption(Buzzanga: anti-franco pamphlet)
Admissions from Accused: Statements about intention

SUBJECTIVE STANDARD:presumptive standard (ADH: baby)

Actual intent to do X

Don’t need to want to do it (Hibbert)

Wilful blindness

D shut eyes b/c he suspected that looking would give knowledge of a crime always avail. (Briscoe: “I don’t want to see nothing”)

Recklessness:

D sees danger that conduct could bring about result prohibited by criminal law & persists (Sansregret)

Presumptively available (Buzzanga)
Likely NOT available for:

Specific intent(Lamb: Limewire child porn)
“Wilfully” (Buzzanga)
“For the purpose”(Roach: lottery scam)

OBJECTIVE STANDARD

Strict Liability [Regulatory Offences]: commission of proscribed act = conviction (Sault Ste. Marie: toxic discharge)

Regulatory offence presumptively SL (rebuttable) (SSM)

Defences:

Due diligence: took all reasonable steps to avoid committing offence (SSM)
Reasonable mistake of fact: 1) w/o mistake, would have acted differently; 2) reasonable person would make same mistake (eg: toxicity label error)
Officially induced error: 1) D made error of law/fact; 2) considered the legal consequences of actions; 3) received reasonable advice from an appropriate official; 4) relied on advice in committing act; and 5) reliance was reasonable (clarity of law, position of official, etc.) (Levis: relied on letter as insurance renewal reminder)

Absolute Liability: Conviction follows upon proof of act (BARD). No defence available.

Absolute liability + imprisonment = violation of s 7 (BC MVA)

Criminal Negligence(“carelessly” or “negligently”)

Marked departure from the standard of care a reasonably prudent person would have exercised in the same circumstances (Beatty: driver over centre line not MD)
Reasonable person is not modified objective, but is placed in the same context (Beatty)
Momentary lapse unlikely to = MD (Beatty/Roy)
Civil negligence OK for using a firearm in a careless manner, because stigma is not so high that it requires a subjective mental element. (Durham)

Subjective MRRequired by s7

High stigma crimes like theftmurder (Vaillancourt)
Attempted murder (Logan)

Objective MRConstitutionally Okay

Subjective intent not required for consequences of underlying unlawful act:UA causing bodily harm(DeSousa);UA manslaughter(Creighton: injects friend w/drugs, ODs, prevents call to ambulance)
Dangerous Driving (Hundal); sexual assault causing bodily harm (Bernard)
Agg. assault, robbery, firearms offences (Mills)
Wilfully setting a fire (Peters)
Using a firearm carelessly (Durham)

PARTY LIABILITY

Crown needn’t specify mode – legally equivalent (Thatcher)
Jury needn’t be unanimous on mode (Thatcher)
If D opens door to different mode than Crown pursued, jury may receive instructions on party liability (Pickton)

Principal/Co-Principal- 21(1)(a)

When committing offence as a group, “blows of one are blows of all” (H(LI))
Only co-principal to murder if you intended to kill; otherwise manslaughter (H(LI))

Aiding - 21(1)(b); Abetting - 21(1)(c)

Recklessness not available (Roach)

AR: aids (does or omits to do anything), ORabets (encouragement)
MR: does AR for the purpose of aiding/abetting AND knowledge ofprincipal’s intent (or wilful blindness to it) (Briscoe: golf course murder)
More than mere presence required (Dunlop: biker rape)
ID of others involved not necessary (Pickton)

Common Intent -21(2)

AR: Common intent to commit crime A & crime B is an objectively foreseeable outcome
MR:Ifprincipal has constitutional minimum mind state, party under s. 21(2) must possess same minimum MR. Otherwise, objective applies, even if principal MR is subjective (Mills)  excludes murder/attempt, theft(Vaillancourt, Logan).
Agg. assault, robbery, firearms offencesokay (Mills)

Counselling: complete = 22; incomplete = 464(a)(Root)

AR: procuring, soliciting, and inciting commission of crime
MR: subjective: intent for offence counseled to be committed, ORawareness of risk that offence would be committed + recklessness as to consequences

INCOMPLETE OFFENCES

Attempts- s 24 (included offence)

AR: more than mere preparation (Cline)
Factors:proximity in time & location; acts under the control of the accused remaining to be accomplished (Deutsche: interview 4 job incl. sex. DN hire anyone)
MR: intent to commit offence + acts done for the purpose of committing the offence (Ancio)
Recklessness not available(“for the purpose”). Specific intent.
Ability to complete offence not relevant (Dynar: )

Conspiracy – s465 – charge separately

Not an included offence. Can be convicted of both conspiracy and full offence, if completed.
AR & MR =Genuine agreement between 2+ people to put a common design into effect (Dynar)
Must be more than negotiation to do crime (Root)
A conditional agreement is sufficient (Root)
Ability to complete offence not relevant (Dynar)

DEFENCES

Crown must disprove 1 elementof D BARD.

Air of Reality

Is there evidence (direct or circumstantial) that is reasonably capable of supporting each element of the defence? Evidence presumed reliable (Cinous)

Modified Objective Standard

Infuses personal characteristics (age, gender, education) and life experiencesinto the reasonable person (Nwanebu: refugee lies to authorities). Use in all Ds.

Consent/Mistake of Fact [1]

Inquires into subjective knowledge of essential elements. May prevent mens rea.
265(3): consent is vitiated if obtained thru force, threats, fraud, exercise of authority

NO CONSENT AS AN ESSENTIAL ELEMENT: Assault

Can only be used where D did not intend did not cause serious bodily harm. (Hancock: pipe fight)
Acts at issue must be those consented to (e.g. consent to fist fight doesn’t cover stabbing) (Hancock)
Never a D where weapons are used (Hancock)

MISTAKEN BELIEF IN CONSENT: Sexual Assault(Ewanchuk)

AR: did complainant subjectively withhold consent? Eval. cred: does other evidence raise a doubt?

MR: did Dsubjectively believe he had consent?

273.1(2): If the complainant says no, D must seek positive consent before re-engaging (Ewanchuk)

273.2(b): D must take reasonable steps to seek consent.Passivity or silence is not consent. (Ewanchuk)

Mistake of Law [1]

19: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence”

Exceptions:

Wilful breach of probation (Docherty)
Crime w/colour of right (e.g. theft: Howson)

Self-Defence [3: justification](s 34)

Reasonable belief force is being used/threatened (SMO)
Act to defend/protect himself or others (S)
Act is reasonable in circumstances (MO)Reasonableness determined by code factors

Person does not have to retreat from home (Lavallee)
Retaliation/anger is not protected (Antle)
Reasonableness determined by: a) nature of force/threat, b) whether there were other available responses, c) accused’s role in incident, d) whether a weapon was used or threatened, e) physical capabilities of the parties, f) prior threats/force in relationship, g) proportionality of response, and h) whether act was in response to threat or force that was known to be lawful

Necessity [3: excuse](common law)(Latimer/Perka)

Principle: moral involuntariness

Reasonable belief: direct and immediate risk? (MO)
Reasonable belief: no legal alternative (MO)
Harm avoided is proportional to the harm inflicted – at minimum comparable gravity (O)
If you created the emergency and ought to be aware that your acts would do so, does not apply (Perka)
Criminal involvement does not disentitle D to defence (Perka: shipping pot to Alaska, ship troubles)

Duress [3: excuse](common law/s 17)

***If principal, check excluded offences*** If offence is excluded, argue it was morally involuntary (Aravena: s 17 exclusions shouldn’t apply if D had no realistic choice but to act as he did.Paquette: can apply to parties to murder, but proportionality (& therefore moral involuntariness) difficult)

Blended CL/CodeElements (Ryan):

Threat of death or bodily harm (can be to 3rd party –Ruzic: Yugoslavia threats, export drugs)(likelyMO)
Reasonable belief threat will be carried out (MO)
Reasonable belief in no safe avenue of escape (MO)
Close temporal connection between threat and the harm threatened. Doesn’t rule out future harm.
Proportionality between the harm threatened and the harm inflicted. 2 requirements (MO):

Harm avoided greater than or = to harm avoided
D showed “normal resistance to pressure” that society expects

D not party to a conspiracy/criminal association joined knowing that duress was possible (S).

Intoxication [2](common law)(Daley)

Advanced: Unable foresee consequences. Negates specific intent.Excludes general intent. Will drop down to lesser incl. crime.

Extreme: Akin to automatism. Excludes violent crimes (s 33.1). Requires expert testimony. Prove on BOP

Provocation [3: excuse](s 232**UPDATED PROVISION**)

Can only reduce murder to manslaughter

Crown has proven culpable homicide
Provocation would be sufficient to deprive an ordinary person of their power of self-control(MO – consistent w/Charter [equality] values (Tran))
Provocation was an indictable offence punishable by 5+ years (NB: doesn’t need to be directed at you)
Provocation was sudden and unexpected
Provocation was not something that victim had a legal right to do
D did not incite the provocation in order to create an excuse to kill him
Provocation actually caused the accused to act
Reacted suddenly and before there was time for their passion to cool

Mental Disorder [2](s 16)

Onus: on party alleging disorder. Prove on BOP (16(3)). High threshold.
Is there a mental disorder?If something is a “disease of the mind” is a Q of law, but J may rely on expert opinion (Lesann)
Unable to appreciate nature + quality of act: E.g. stabbing but think you are giving medicine
Unable to know act was wrong: Intentionally did X because you thought it was right & society would think it was right (not personal morality) (Lesann: killed b/c devil)
Excl. drug/alcohol induced transitory states (Lesann)
Crown can only raise NCRMD after D found guilty, but before conviction entered, OR if D “opens the door” (Whittle)

Automatism [2](common law) – on BOP

Wipes out AR + MR (Stone: stabs wife after insults)
Person is in a state of disassociation (Stone)
Requires expert testimony
Presumptively NCR-MD (Stone)

NCR-MD Automatism s 16(Luedecke: sleep sex)

Mental disorder creates automatism. MD is legal, not medical, determination: can’t rely on experts.
D will be assessed by Review Board to determine whether he poses a “significant risk.” If no, then they must be granted an absolute discharge.
Factors that suggest NCR-MD (Stone):
Automatism stems from internal cause
Factors leading to automatism (sleep deprivation, alcohol, stress) are likely to reoccur.
D has a history of automatism

Psychological Blow Automatism(Lesann)

Excl. drug/alcohol induced & transitory states
Entitles D to an acquittal.

Rolled Up Defence

Wheretrier of factrejects each individual defence, the cumulative effect of the failed defences may be to raise a doubt on specific intent (Robinson) (usually self-D, provocation & intoxication)

SENTENCING

Absolute discharge: no criminal record

Conditional discharge: turns into absolute discharge when you fulfill certain conditions.

Suspended: jail term, butyou will not serve time if you complete all the conditions on your sentence.

Conditional: sentenced to jail, but served in the community.

Actual jail term

Indeterminate sentence: kept in jail until you die, unless you show us you are better.

Considerations

Purposes: denunciation; deterrence (gen/spec); separation; rehab; reparations; responsibility (718)
Proportional to gravity of offence/responsibility of D (718.1).
Similar to sentences for same crime (718.2(b))
Aggravating circumstances – trust, impact on V (718.2(a))
Incarceration = measure of last resort (718.2(d)&(e))
Mental illness = mitigating b/c it lowers moral blameworthiness of offender. Deterrence less effective. Treatment best way to protect society. Must be causal connection betweenillness and crime. (McConnell)
Ruhl: aggravating relate to crime: # of transactions, amount of $ position of trust, impact on V;mitigating relate to offender: remorse; guilty plea; restitution; addiction; rehab plan gen. deterdenunciation require jail term, even though D is unlikely to reoffend.

Concurrent or Consecutive Sentences

Concurrent appropriate when multiple offences arise out a single/closely-linked incident (less moral culpability b/c fewer decisions to do crime) (Langthorne)
If two offences are very similar, J has discretion to knock one out
Totality principle: If the combined sentence is unduly long & not proportionate to the gravity of the offence & degree of responsibility of the offender, it should be globally reduced (Langthorne)in statute: 718.2(c)

Conditional Sentences

742.1Introduced to deal w/problem of overincarceration and facilitate rehabilitation (Gladue), but conditions must reflect punitive function (Proulx)

Restrictions:

Sentence must be less than 2 years
Offence must not have mandatory minimum
Cannot be on “shopping list” of excluded offences

Sentencing Aboriginal Offenders

Women’s prisons: 35% FN. Men’s: 20-25% FN. General population: 4% FN.

Judges must consider (& can take judicial notice of): (Gladue)

Unique systemic or background factors which may have played a part in bringing the particular FN offender before the courts
Appropriate sentence for offender because of particular FN heritagerestorative justice is primary

Causal link btwn FN background and crime not necessary, but must show that being FN helped push D twd crime (Ipelee)

Mandatory Minimums

Minimum violates s 12 if sentence is grossly disproportionate to what D would have received w/o it & is not saved by s 1 (Smith).

2 routes (Nur)

Sentence actual D would have received;
Sentence “reasonable hypothetical” D would receive (Smith: pot across border)

 Exemptions not possible (Latimer; Ferguson)

 Minimum okay for murder (Latimer)

VALIDITY OF LAW

Oakes Test: s 1

Crown proves on BOP. Fail one fail all

Pressing and substantial objective: Nothing struck down here, but how you define objective = crucial.
Rational connection btwn law & objective.  Consensus on benefit not necessary.
Minimal impairment of right necessary for law. (Related to overbreadth)
Proportionality: benefits vs. costs Must be gross disproportionality to fail

Fundamental Justice: s 7(Heywood, Beford: prostitutes)

Define objective

Vagueness: Rarely used. Law is so vague that you don’t know the ‘zone of risk.’
Arbitrariness: No connection between objective & law.
Overbreadth:Part of law doesn’t serve objective.
Gross disproportionality:Small benefit, big deprivation.

Reverse Onus: 11(d)

Reverse onus (“must establish” on BOP) = 11(d) violation (Oakes: any drugs = trafficking)
Permissive presumption okay for 11(d) (Downey)

CHARTER RIGHTS OF AN ACCUSED

Right to Counsel: 10(b)

Engaged when detained + recognize officer as police.
Inform of right to and facilitate access [Manninen: not provided phone, self-incriminates]
Without delay [Taylor: hospital, no phone]
Provide info re: free duty counsel [Brydges: waives b/c can’t afford lawyer]
Provide access to 1-800 [Bartle]
Waiver must be “clear, unequivocal, and informed” & appreciate consequences [Clarkson: drunk waiver]
Exhausted after initial contact [Sinclair]
No right to have counsel present in questioning [Sinclair]

Tried within a Reasonable Time: 11(b) (Morin)

Guidelines (charge to end of trial): 12-16(prov ct); 22-24 (supreme court)
Factors may call for extension: (1) clear waiver of rights; (2) reasons for delay (time req. of case; actions of accused/crown; unusually high case volumes before ct); (3) prejudice to accused’s liberty/security/ability to mount D because of delay.

Unreasonable Search & Seizure: 8

Req. prior judicial auth. Standard: reasonable grounds that (1) offence was committed, (2) evidence is in search location (Hunter)
Applies where reasonable expectation of privacy (Wong)
Can’t rely on breach of someone else’s privacy (Pelucco)
To assess reasonableness: (Edwards/Pelucco)

- Presence at the time of the search;

- Possession/control of property or place searched;

- Ownership of the property or place;

- Historical use of the property or item;

- Ability to regulate access, including the right to

admit or exclude others from the place;

- Existence of a subjective expectation of privacy;

- Reasonableness of the expectation (objective).

Protected: internet browsing data (Spencer); text messages (Pelucco); “biographical core” of infothat reveals intimate details of individual’s lifestyle and personal choices (Plant); hotel room from surveillance cameras, even if public invited (Wong)
Not protected: passengers stuff in car (Belnavis), violation of someone else’s rights.

Role of Crown & Judge

Crown[Anderson]