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Crim Summary

Crim Summary

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CL & THE CHARTER 
Common law principles
the general ideas which have developed in the commonlaw world; reflected in legislation and case-law
dimension of weight: some are stronger and more firmlyembedded than others
can be overridden by legislation.
 
Constitutional principles- guarantee of principles of fundamental justice ins 7- principles of “universal application” so they do not readily permitexceptions;
 
Creighton
at SDC 573- can override legislative provisions to the contrary.- Not all CL principles qualify as constitutional – only the mostimportant ones-“the Constitution does not always guarantee the ‘ideal’”;
Creighton
CHARTER s 7 - the review of the legal means to achieving the particular social objective
s 7: Everyone has the right to life, liberty and security of the personand the right not to be deprived thereof except in accordance withthe principles of fundamental justice.
Applies to procedural matters
eg obligation of prosecution to make full disclosure of all relevantmaterial, whether or not it intends to use the material at trial:
 
Stinchcombe
[1991] 3 SCR 326.
PROCEDURAL APPLICATION OF s7:
-Entrapment (formally abuse of process issue, but now a s7issue)-Officially-induced error of law-Improper or oppressive prosecutions-Double jeopardy
o
where special pleas of 
autrefois acquit 
or 
autrefois convict 
under s 607(1) are notavailable-Non-disclosure-Lack of legal representation at trial
Applies to design of offences (ie conduct elements): must not be
 
arbitrary or vague
eg abortions cannot be subject to requirements for performance inhospitals and for approval of committees applying vague standardsre “health”:
 
Morgentaler 
[1988] 1 SCR 30.-- must be rationally connected to the social end, and reasonablyclear & not vague. Otherwise it is unjust.
Applies to fault elements of offences
(ie is the fault element
 
sufficient to the penal liability that is being held by the provision)eg felony-murder unconstitutional:
 
Vaillancourt 
[1987] 2 SCR 636;
Martineau
[1990] 2 SCR 633
Remedies for Charter Breaches
-
s 24(1)
Anyone whose rights or freedoms, as guaranteed bythis Charter, have been infringed or denied may apply to acourt of competent jurisdiction to obtain such remedy as thecourt considers appropriate and just in the circumstances.
o
eg Where legislation is held unconstitutional,
declaration of invalidity can be made: eg
Morgentaler 
[1988] 1 SCR 30
declaration that particular provisions areinoperative may be made: eg
 Logan
– 
‘ought to know’ isunconstitutional to offencesrequiring a special mens rearequirement;
 Logan
o
eg officials may be ordered to take action to observeconstitutional standards: eg
Stinchcombe
order for disclosure – i.e. have material disclosed to theDefence by the Prosecution and if ordered and notcomplied with, proceedings are stayed.
Per SCC: prosecution has obligation tomake full disclosure of all relevantmaterial, whether or not it intends to usethe material at trial
Subject only to exceptions ree.g. matters covered by privilege; concerns re safety of witnesses
Exclusion of Evidence
Grant 
, 2009 [SCC]
“[71]…When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting theevidence on society’s confidence in the justice system havingregard to:
(1) the seriousness of the
Charter 
-infringing state conduct(admission may send the message the justice system condonesserious state misconduct),
(2) the impact of the breach on the
Charter 
-protected interestsof the accused (admission may send the message thatindividual rights count for little), and
(3) society’s interest in the adjudication of the case on itsmerits.The court’s role on as. 24(2)application is to balance each of theselines of inquiry to determine whether, considering all thecircumstances, admission of the evidence would bring theadministration of justice into disrepute.”
GRANT 
& TYPES OF EVIDENCEStatements by accused:
[98]
“…
the centrality of the protected interests affected will inmost cases favour exclusion of statements taken in breach of the
Charter 
, while the third factor, obtaining a decision on the merits,may be attenuated by lack of reliability. This…explains why suchstatements tend to be excluded under s. 24(2).” 
Bodily evidence:
[110] “…evidence obtained from the accused’s body is generallyreliable, and the risk of error inherent in depriving the trier of factof the evidence may well tip the balance in favour of admission.[111]
“…
it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on theaccused’s privacy, bodily integrity and dignity is high, bodilyevidence will be excluded… On the other hand, where the violationis less egregious and the intrusion is less severe…reliable evidenceobtained from the accused’s body may be admitted.”
Non-bodily physical evidence:
[113] “Privacy is the principal interest involved in such cases. The jurisprudence offers guidance in evaluating the extent to which theaccused’s reasonable expectation of privacy was infringed.”
ACTS & OMISSIONS
LIABILITY FOR OMISSIONS:General principle of no criminal liability for omissions- principle implicit but not stated in the Code- no 'good Samaritan' principle in Code or common lawExceptions
Legal duty to act recognised by criminal law
Per 
Coyne
(SDC at 280): “The ‘duty imposed by law’may be a duty arising by virtue of either the common lawor by statute.
Breach of duty:
a. Specific offences of omission in breach of dutyeg:
failure to stop at scene of accident with intent to escape liability,s252(1); failure to provide necessaries of life in breach of a legal duty,s215(2) 
b. Offences where omission in breach of duty is expresslyidentified as alternative mode
 
-
causing death (s 220) and causing bodily harm (s 221) by criminal negligence
-
with criminal negligence defined to include showing ‘wantonor reckless disregard for the lives or safety of other persons’ indoing or ‘in omitting to anything that it is his duty to do’ (s219) – 
SEE CRIM NEGLIGENCE BELOWc. Offences where common law recognises liability for omissionin breach of dutyGENERAL DUTIES TO ACT
 REQ 1: Is there a duty? REQ 2: Is there a breach of that duty
 
 Browne
: ‘Im going to take you to the hospital” HELD: convicted.
Moore
: Cyclist went through red light, refused to identify himself to police. Charged with Obstruction.
HELD
: refusal of ID causesmajor inconvenience and obstruction to police, :. Considerations of  public interest justify conviction. (dist.
 Rice v Connoly
– no legalduty to assist – b/c that was mere suspicion of an offence)
Thornton
: (donation of blood by person knowing HIV+. Convictedof common nuisance – 
s180
– ‘does an unlawful act, or fails todischarge legal duty + endangers life)
HELD
: breach
s216
– whoundertakes to do any other lawful act that may endanger the life, isunder a duty to take r/care in doing so.
 Beardsley
: (how decided under current Cdn law)
 
Statutory duties1) Duty to provide necessaries of life
,s 215
(a) to children under 16
(b) to spouses or common law partners
(c) to persons ‘under his charge’ who are unable towithdraw from the charge and unable to providenecessaries for themselves
2) Duty of persons undertaking acts dangerous to life,s2163) Duty to perform undertakings to do acts if omission may bedangerous to life,s 2174) Duty of persons directing work of others to take reasonablesteps to prevent bodily harm,s 217.1
 
Common law dutiesDuty of persons causally responsible for dangerous situationsto counteract danger,
 Miller 
SDC 269-271
BURDEN OF PROOF
Oakes
[1986] 1 SCR 103
Drugs legislation provided that, where possession was proved on acharge of possession for the purpose of trafficking, onus lay onaccused to establish that trafficking was not the purpose of the possession
Held by SCC:
-provision violated s 11(d): constitutional guarantee applies toall elements of offence-could not be saved by s 1 because no rational connection between the proved fact (possession) and the presumed fact(purpose of trafficking
OAKES TEST fors 1 (1)
the
objective
must be of sufficient importance to warrantoverriding the constitutional right or freedom;
(2)
the
means
of achieving this objective must be “reasonable anddemonstrably justified”, which requires that:
(a)
there must be a rational connection to the attainment of theobjective,
(b)
there must be the minimally necessary impairment of theconstitutional right or freedom and
(c)
the adverse social consequences of this impairment must notoutweigh the benefits
EXTENSIONS OF OAKES DOCTRINE
Later cases apply s 11(d) to defences as well as elements of offencesEg Presumption of sanity:
Chaulk 
[1990] 3 SCR 1303
LIMITATIONS OF OAKES DOCTRINE (1)
1)
 
Chaulk 
[1990]
 
3 SCR 1303
Reversal of onus for mental disorder defence upheld under s1
Objective is to relieve prosecution of difficulties re disproving insanity and ensure guilty personsare convicted
Reversal of evidentiary burden would nothave achieved objective as effectively
Per Lamer CJ: “…Parliament may nothave chosen the absolutely
least 
intrusive means of meetingits objective, but it has chosen from a range of means whichimpair s.11(d) as little as is reasonably possible.”
2)
Wholesale Travel Group Inc
[1991] 3 SCR 
Reversal of onus acceptable for ‘regulatory offences’ (re strictliability)
-Reversal of onus for defence of due diligence for CompetitionAct offence of misleading advertising upheld under s1-Per Cory J: This is a regulatory offence and reversal is justified for such offences
-
Quite simply, the enforcement of regulatory offences would be rendered virtually impossible if the Crown were required to prove negligence beyond a reasonable doubt…Only theaccused will be in a position to bring forward evidencerelevant to the question of due diligence.”
PRINCIPLES OF CRIMINAL CULPABILITY
FAULT PRINCIPLE
The most fundamental of all principles of criminal culpability is the principle that
there should be no penal liability without fault
:
G
– i.e. accused must be blameworthy for what occurredAt a minimum, the FP means that the standard of conduct prescribed by the law must have been reasonably within reach,-
i.e. there must have been capacity to conform to thelaw and also a fair opportunity to exercise that capacity
- Both a common law and a constitutional principle (PFJ whichs7requires to be observed when the right to liberty has been takenaway)
Principle of fundamental justice that criminal liability requiresfault:
Sault Ste Marie
, Dickson J at SDC 377: “absolute liability…violates fundamental principles of penal liability”
FAULT: SUBORDINATE PRINCIPLES
VOLUNTARINESS PRINCIPLE
-
requires that the conduct have been under the mental controlof the actor, so that the person
could 
have acted differentlyand can be blamed for not having done so.
o
a common law principle
o
and a constitutional principle (
 Daviault 
)
COGNITIVE CAPACITY PRINCIPLE
-
requires there to have been the
capacity
to appreciate whatwas being done and why it was wrong, so that the person notonly
could 
have acted differently but also
 should 
have doneso.
o
a common law principle
o
and a constitutional principle (
Creighton
)
 
-
underlies the recognition that objective tests must generally beadaptable for cases where the person was incapable of meeting the regular standard (
Creighton
)--NB*
Creighton
– for objective mens rea, there is a uniform test.Don’t adapt it to the frailties of the accused. This is subject to thecognitive capacity principle. The objective test has to adapted tothe cognitive capacity of the accused. Thus this is an exception tothe view that objective test is uniform in regards to offencesinvolving negligence, for example. Not too many ppl will get the benefit of the exception – only ppl with really low IQ’s/ ppl whodon’t know the standard that they have to live up to.
 MORAL VOLUNTARINESS PRINCIPLE
-demands special excusing defences (like duress) for situationswhere punishment would be unjust because any normal person would have felt driven to act as the accused did.
o
a common law principle (
 Perka
)
o
and a constitutional principle (
 Ruzic
) – used tostrike down legislative defence to duress.Ruzic: Getting rid of the rigid time framesassociated with the defences.--Conduct is morally involuntary if no other options are availableto the accused. Necessity is recognised as a defence (CL)
Proportionality Principle
 
Insists that the fault required for an offence should be proportionateto its gravity, as measured by the penal liability (+stigma) that willfollow conviction:
the more severe the sanctions that a personwill face, the worse should be the culpability required forconviction
CL Principle & constitutional principle but of uncertain weight &application-
Creighton
per McLachlin J: “the moral fault of the accused must be commensurate with the gravity of the offence and its penalty
i.e. the more severe the sanctions that a person willface, the worse should be the culpability required forconviction
SEE
 MARTINEAU 
re CHARTER 
PROPORTIONALITY: SUBORDINATE PRINCIPLESSYMMETRY PRINCIPLE
-
requires that a corresponding element of fault beestablished for each conduct element of an offence.
o
a common law principle (
 Pappajohn
) butrelatively weak 
o
no general application as a constitutional principle because it clashes with
the “predicateoffence” principle ( 
 
 DeSousa, Creighton), e.g.assault occasioning bodily harm
e.g.
each AR requires a MR, i.e. AR1 – MR1, AR2 – MR2, AR3 –MR3.
SUBJECTIVITY PRINCIPLE
-
requires that liability be imposed only on a person whohas freely chosen to engage in the relevant conduct,having appreciated the consequences or risks of thatchoice.
o
accused must have had the
intention
to committhe offence or displayed
recklessness
(in thesense of awareness of the risk) of itscommission
o
a common law principle (
Sault Ste. Marie
,
 Pappajohn
)
o
 but a constitutional principle only re group of especially serious offences (
Vaillancourt 
,
Martineau
)
-
Generally, objective mens rea is constitutionallyacceptable (
 Hundal 
,
Creighton
) + strict liability for regulatory offences (
 
Sault Ste. Mari
e, Wholesale Travel)
CRIMINAL NEGLIGENCE PRINCIPLE
-
requires that, where serious offences are based onobjective negligence, there should be a “markeddeparture” from the standards of the reasonable person.
-
a common law principle and a constitutional principle(
 Hundal 
,
Creighton
,
 JF 
)
-
applied only to offences which are based wholly onnegligence
-
not applied to offences in which elements of subjectivefault and negligence are mixed.
ELEMENTS OF OFFENCES
THE MENTAL ELEMENT IN THE
 ACTUS REUS 
VOLUNTARINESS:
 Daviault 
 
, Cory J: “the
actus reus
requires that the prohibited act be performed voluntarily as a willed act.” –  judged subjectively  -required by CL & Consti
-
often described as the mental element in the
actus reus
 MENS REA
1) PRESUMPTION OF
 MENS REA
(applies only to true crimes,not regulatory offences)
 Prue
SCC 1979, Laskin CJ at SDC 720-721: [T]he inclusion of anoffence in the
Criminal Code
 by that very fact must be taken toimport
mens rea
, ie presumption of 
mens rea
 
 
Sault Ste Marie
convicted for polluting water; provincial offence of regulatory kind :. No presumption of MR + no express wordsimporting MR. HWR it is a strict liability offence, so reverse onusto prove lack of fault.
2) MR 
requires
INTENTION
or 
RECKLESSNESS.- wilfully = intentionally:
 Buzzanga
endorsed in
Chatrand 
Doctrine of WB
: “
the rule is that if a party has his suspicionaroused but then deliberately omits to make further inquiries b/che wishes to remain in ignorance, he is deemed to haveknowledge
”:
Currie (leading case re forged cheques);
-
APPLICABLE TO
: (a) s.354 receiving (have to know property is stolen) OR (b) s.268 uttering a forged document(have to know that it’s forged)
NB*HWR see
 Sansregret 
WB3)
 Sansregret 
as per McIntyre J: re
WB vs Recklessness
WB=
arises where a person who has become
aware of the needfor some inquiry
declines to make the inquiry b/c he does notwant to know the truth
Reck 
=
involves knowledge of a danger or risk 
and persistence ina course of conduct which creates a risk that the prohibited resultwill occur 
THUS
:
if intention/knowledge required – WB will do (
 
orthodox);if recklessness required but not present, WB will do (
Sansregret 
)
ELEMENTS OF WB (
 Sansregret 
)
1)
No awareness of risk 
of committing actus reus (ie norecklessness) –> if he was aware of the risk, it would berecklessness
2)
but awareness of need for inquiry
 b/c of the facts present atthe time
3)deliberate failure to inquire
 
a.NOT WB in traditional sense
FORMS OF
 MENS REA
 Subjective
 Mens Rea

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