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UNIVERSITY OF CALGARY LAW

Crime CANs
1st Year, Fall 2012
Lindsay Amantea Fall, 2012

Crime CANs

Fall, 2012

Contents
Framework .............................................................................................................................................. 4 Offence Frameworks ............................................................................................................................... 8 Assault ................................................................................................................................................. 8 Breaking and Entering ......................................................................................................................... 9 Causing a Disturbance....................................................................................................................... 10 Indecent Acts .................................................................................................................................... 12 Keeping a Bawdy House ................................................................................................................ 12 Duties Tending to Preservation of Life.............................................................................................. 13 Offences Relating to Proclamation ................................................................................................... 15 Murder .............................................................................................................................................. 15 Possession ......................................................................................................................................... 18 Voyeurism ......................................................................................................................................... 19 Topics .................................................................................................................................................... 21 Aim and Scope of the Criminal Law .................................................................................................. 21 Sources of Canadian Criminal Law .................................................................................................... 21 Offence Definition ......................................................................................................................... 21 Doctrine of Precedent ................................................................................................................... 22 Structure of the Criminal Justice System .......................................................................................... 23 The Adversary System: Roles and Responsibilities ....................................................................... 23 Court System and Classification of Offences ................................................................................ 24 Difference between Indictable and Summary Conviction .................................... 28 Burden of Proof: Reasonable Doubt ............................................................................................. 31 Statutory Interpretation in Criminal Law .......................................................................................... 32 General Principles ......................................................................................................................... 32 Strict Construction ........................................................................................................................ 32 The Criminal Act (Actus Reus) ........................................................................................................... 33 General Principles ......................................................................................................................... 33 Specific Examples/Illustrations ..................................................................................................... 33 Special Issues: Actus Reus ................................................................................................................. 36 Consent in the Context of Assault/Sexual Assault ........................................................................ 36 Omissions ...................................................................................................................................... 37 Acting Through an Innocent Agent ............................................................................................... 39 Causation ...................................................................................................................................... 40 1

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Voluntariness ................................................................................................................................ 42 Tests ...................................................................................................................................................... 44 Charts .................................................................................................................................................... 45 Case Index ......................................................................................................................................... 45 Case Briefs ............................................................................................................................................. 50 R v Heffer (1970 (Man CA) ................................................................................................................ 54 R v Malmo-Levine (2003 SCC) ........................................................................................................... 54 R v Labaye; Kouri (2005 SCC) ............................................................................................................ 54 R v Sedley (1663)............................................................................................................................... 55 Frey v Fedoruk (1950 SCC) ................................................................................................................ 55 R v Henry (2005 SCC)......................................................................................................................... 56 R v RDS (1997 SCC) ............................................................................................................................ 56 R v Hamilton (2004 Ont CA) .............................................................................................................. 57 R v Effert (2011 Alta CA) ................................................................................................................... 57 R v Kubassek (2004) (Ont CA) ........................................................................................................... 57 Woolmington v DPP (1935 HL).......................................................................................................... 57 R v Lifchus (1997 SCC) ....................................................................................................................... 58 R v Starr (2000 SCC) .......................................................................................................................... 58 R v S(JH) (2008 SCC) .......................................................................................................................... 59 R v Mullins-Johnson (2007 Ont CA)................................................................................................... 59 Re S.83.28 of the CC (2004 SCC) ....................................................................................................... 59 R v Clark (2005 SCC) .......................................................................................................................... 59 R v Goulis (1981 Ont CA) ................................................................................................................... 60 R v Paré (1987 SCC) ........................................................................................................................... 60 R v Mac (2001 Ont CA) ...................................................................................................................... 61 R v Thorne (2004 NB CA) ................................................................................................................... 61 R v Lohnes (1992 SCC) ....................................................................................................................... 62 R v Burt (1985 Sask QB)..................................................................................................................... 62 Marshall v R (1969 Alta CA) .............................................................................................................. 62 R v Terrence (1983 SCC) .................................................................................................................... 63 Re Chambers and the Queen (1985 Ont CA) .................................................................................... 63 R v Morelli (2010 SCC)....................................................................................................................... 64 R v Pham (2005 Ont CA) .................................................................................................................... 64 R v Chalk (2007 Ont CA) .................................................................................................................... 64 2

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R v Chase (1987 SCC)......................................................................................................................... 64 R v Cuerrier (1998 SCC) ..................................................................................................................... 65 *R v Mabior (2010 Man CA) .............................................................................................................. 65 R v Jobidon (1991 SCC) [Edited] ........................................................................................................ 65 R v Moquin (2010 Man CA) ............................................................................................................... 66 R v A(J) (2011 SCC) ............................................................................................................................ 66 Moore v R (1979 SCC) ....................................................................................................................... 66 Fagan v Metropolitan Police (1968 UK CA) ....................................................................................... 67 R v Miller (1983 HL) ........................................................................................................................... 67 R v Thornton (1991 Ont CA) and (1993 SCC) .................................................................................... 67 R v Browne (1997 Ont CA), lv to appeal refused .............................................................................. 68 R v Peterson (2005 Ont CA), lv to appeal refused............................................................................. 68 R v Michael (1840 CCCR) ................................................................................................................... 69 Smithers v R (1978 SCC) .................................................................................................................... 69 R v Nette (2001 SCC) ......................................................................................................................... 70 R v Talbot (2007 Ont CA) and Charter Note ...................................................................................... 70 R v Smith (1959 UK Ct-Mar App Ct) .................................................................................................. 71 R v Blaue (1975 UK CA) ..................................................................................................................... 71 The Queen v Bingapore (1974-5 S Aus SC) ....................................................................................... 71 R v Maybin (2010 BC CA)................................................................................................................... 72 R v Lucki (1955 Sask Pol Ct) ............................................................................................................... 72 R v Wolfe (1975 Ont CA) ................................................................................................................... 72 R v Swaby (2001 Ont CA) .................................................................................................................. 72 R v Ryan (1967 Aus HC) ..................................................................................................................... 73 Kilbride v. Lake (1962 NZ SC) ............................................................................................................ 74

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Framework
1. Whose side are you on you? a. Crown: have to prove, beyond a reasonable doubt) that the accused did all the things which make up the prohibited act b. Defence: are there any defences in the Code itself, or by analogy to other cases, that would prevent the Crown from proving beyond a reasonable doubt that the accused did what was alleged, including all the things which make up the various elements of that offence? What is the offence in the CC? If there are multiple offences, deal with each offence separately. Order them from most severe to least OR chronologically. If you are not told which offence to use in a section (example: S. 222(5) (a), (b), (c) or (d)), specify which offence(s) you are choosing and why. a. Offence provision : “Everyone who commits x is guilty of an indictable offence and is liable to a term of imprisonment not exceeding x years” b. Elements provision: "Everyone commits x who does a, b, and c." ***STOP HERE AND LIST THE ELEMENTS OF THE OFFENCE IN POINT FORM*** What needs to be proved to show that the offence has actually occurred? Interpretation of the wording of the criminal statute, and what has actually occurred. What is the aim of the provision? a. Strict Construction of Penal Statutes: Look at intention of Parliament and the context in which Parliament used the word; if there is still an ambiguity the interpretation that is most favorable to the accused is used (R v Goulis) b. Take into account the policy considerations underlying the provision and the intention of the legislature (R v Paré) c. Must there be harm to be a criminal prohibition? No, the Charter considers safeguarding values and legitimate state interests important (Malmo-Levine, Harm Principle) d. What would the larger public impact be of finding a broader or narrower construction (open the floodgates argument)? (R v Lohnes) e. Where there is true ambiguity that can be resolved by resorting to the French version, do so (R v Mac) f. R v Clark discussion of def’n of “indecent place” – intent of the provision was to protect the public in places where public has access. Had to interpret “in a public place” in its grammatical and ordinary meaning that is consistent with the legislative context and Parliament’s intention – was not designed to allow conviction in cases where people surreptitiously watched activities one could not reasonably foresee would be public Start with determining the elements of the offence. Keep in mind: a. All elements of the offence must be present (R v Heffer) b. For a jury to convict an accused of an offence, they must be presented with evidence of all essential elements (R v Thorne) c. 1955 revision of the CC - s.9: no person should be convicted of a crime in the common law, but common law defences are preserved Ambiguity in the meaning of the elements? If so, look for definition(s) in the follow order: a. Offence statute b. Parent Statute c. Definitions at beginning of new Part (ex. s.150) d. Definitions in s. 2 of CC e. Case law precedent re: use of specific words f. Dictionary (only after having exhausted all prior means) Is there a deeming provision involved? Can ease the Crown’s burden of proving an element 4

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a. Watch for ss. 350, 139(3), 198(2), 366(3) and (4) and s. 461 Is there an issue of vicarious liability? (R v Burt) a. Flies in the face of criminal doctrine and tradition which require both a guilty act and a guilty mind b. Courts reluctant to impose criminal liability vicariously unless expressly required by statute 9. Omission? – Criminal responsibility is limited to cases where there is a legal duty to act and not merely a moral duty to act a. Omission to act in a particular way will give ride to criminal liability only where a duty to act arises at common law or is imposed by statute (R v Moore) b. Any duty to identify oneself must be found in either common law or statute, quite apart from the duties of the police c. Can there be an implied duty to give information because there is a duty on police to investigate crime and enforce laws? If there was a common law duty then no need for specific provisions requiring persons to give names/addresses, and a fundamental principle of English law that an accused person cannot be interrogated or forced to answer under threat of legal penalty d. No mere omission can amount to an assault; the elements of mens rea and actus reus must be present at the same time but one may be superimposed upon the other (Fagan v Metropolitan Police) e. When a person has unknowingly done an act which set in train events that, when he becomes aware of them, present an obvious risk that property belonging to another will be damaged, there is a “responsibility” to take action to prevent that damage (R v Miller) f. Has there been an undertaking? Cannot establish a legal duty to act without it – s.217 (R v Browne) g. Offence can be established by proving conduct that is a marked departure from the conduct of a reasonable person having the charge of another in circumstances where it is reasonably foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment to the health of the person under the charge of the other – s. 215 (R v Peterson) i. s.218/219 - Duties can be owed to a class of person - if omissions question engages one of these, say “was there a duty owed to a class of person” 10. Acting through innocent agent? Use “but for” test a. Committing a crime through an innocent agent is like committing the crime yourself b. Intent must remain when act occurs, but if you change your mind, you have to demonstrate it with some external act (R v Michael) 11. Possession offence? 3 types: personal, constructive, and joint (Pham) a. Personal possession - S.4(3)(a) – 3 components i. Manual handling ii. Knowledge iii. Control (Terrence) b. Constructive possession – person - S.4(3)(a)(i)(1) i. A person has anything in his possession when he has it in any place where a person KNOWINGLY has something in a place with his consent or knowledge c. Constructive possession – place - S.4(3)(a)(ii) i. Has in a place, whether or not place is owned or occupied, for the use of benefit of himself or another person A. Watch for bringing in s. 21 CC re: parties to an offence – still requires common intention d. Joint possession - S.4(3)(b)(b) 8. 5

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Two or more persons with knowledge and consent of the rest have anything in their possession it shall be deemed to be in possession of all of them e. There must be some measure of control in order to find the “knowledge and consent” (R v Marshall, R v Terrence) f. Knowledge need not be established by direct evidence, but can be shown by circumstantial evidence as well (R v Pham) g. Innocent possessor defence? Has to be an absence of intention to exercise control over the prohibited item beyond what is required beyond the carrying out of the innocent purpose – eg. turning it over to the police (R v Chalk) 12. Consent in the context of assault/sexual assault a. Consent can be vitiated by fraud – including a false or fraudulent representation of the nature or quality of the act for which consent is obtained (Bolduc v Bird) b. Non-disclosure can constitute fraud when it would be viewed by the reasonable person as dishonest – BUT the existence of fraud should not vitiate consent unless there is a significant risk of serious harm (R v Cuerrier) i. Essential elements of fraud are dishonesty (which can include the nondisclosure of facts) and deprivation or risk of deprivation; the higher the risk of deprivation, the higher the duty to disclose material facts (R v Cuerrier) c. Is an absence of consent a material element which must be proved by the Crown in all cases of assault? Consent to assault is no answer to a charge of assault when “actual bodily harm is intended and/or caused” (R v Jobidon) d. Can’t consent if you are unconscious or passed because you have engaged in autoerotic asphyxiation games (R v J.A.) e. An honest belief in the consent of the victim is a defense, but that only extends to the point the victim gives up or retreated: consent does not extend beyond consciousness (R v Jobidon) 13. Is there a question of causation? Arises in cases where the intent of accused is not clear (at some point, the actus reus and the mens rea must coincide) a. The issue of causation is for the jury and not the experts (Smithers v R) b. Factual v Legal Causation – Factual = would the result would not have occurred but for the acts of the accused? Legal = a normative enquiry as to whether a person who has factually caused harm should be held criminally responsible for it c. A break in the chain of causation can absolve the accused of responsibility, even if they would have been responsible for the harm had that break not occurred (R v Menezes) d. Can a victim’s unreasonable actions break the chain of causation? Thin skull: those who use violence on others must take their victims as they find them. The issue is not reasonableness but what caused the harm what caused her death. The answer is the stab wound (R v Blaue) e. If at the time of death, the original wound is still an operating and substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating (R v Smith) f. Sufficient causation exists where the unlawful actions of the accused are “a significant contributing cause of harm” (R v Nette), ie, “more than trivial” (Smithers v R) g. Murder requires accused to have subjective foresight of death or serious bodily harm likely to cause death, manslaughter has lower threshold of objective foreseeability of serious bodily harm. (R v Nette) h. The act of the accused causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some third party is negligent (Queen v Bingapore) Conclusion 6

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The accused was charged with x which is an indictable offence contrary to s. 123 of the CC. The elements of the offence are found in s. 456 of the CC and include the following: a, b and c. Based on the facts given, I think that the Crown will be able to prove that x did a, and b, but not c because c requires (whatever) and x cannot be said to have done this. Therefore, I do not think that the Crown will be able to establish all the required elements of the offence as charged. However, x is also charged with y which is also an indictable offence contrary to s. 345 of the CC. The elements of this offence are found in s. 346 and include d and e, which the Crown will be able to prove.

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Offence Frameworks
Assault
Assault 265. (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Consent (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. Accused’s belief as to consent (4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. Aggravated assault 268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Punishment (2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. *”without consent” used to be textually before (b) as well, likely still intended despite its absence *”directly or indirectly” music student could have indirectly changed doctors touching (Bolduc v. Bird) *”person other than the complainant” frequently means children *Fraud – no longer as to the “nature and quality” of the act (Bolduc and Bird), now general fraud *Consent  Cuerrier (aggravated assault) o Cory - Largest Minority in Cuerrier  Lying about HIV vitiates consent  NOT JUST would the person not have consented (ie. fur coat sex – would trivialize sexual assault)  Fraud as to the:  Nature or quality of the act  Person  Safety of the act (Ie. SERIOUS physical implications – HIV) 8

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McLachlin  Bright line test – disease o Dube  ANY fraud, disputed problem of trivializing since serious elements (causation, intent) and possibility of de minimus (weakest)  R. v. Jobidon o Common law defense of consent removed here through perversion of s.8(3) o TEST: If actual bodily harm is intended and/or caused in a non- socially useful activity (sport/surgery), Then consent is always vitiated  R. v. Williams o Could only find attempted aggravated assault due to issues of causation with HIV window *Many “treatment” causation issues deal with assault *De Minimus – lack of harm due to fortuitousness not necessarily de minimus (Kubassek – crazy religious women) *Intent can differentiate “identical” acts (hand on thigh from falling vs. hand on thigh from creep) * R. v. Chase (1987) S.C.C.  OBJECTIVE TEST FOR SEXUAL NATURE IN ASSAULT  Sexual Assault: An assault committed in circumstances of a sexual nature where the sexual integrity of the victim is violated.  What is the test for detecting sexual assault? o Holistic test based on whether or not a reasonable person would identify a sexual element. o Objective Sexual Nature Test: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer” o Factors:  Part of body touched, nature of contact, situation in which it occurred, concurrent words and gestures, all other circumstances accompanying the act and surrounding the conduct (ie. threats)  About GENERAL intent, not specific intent (ie. to include drunkenness)  If you can’t satisfy burden on the sexual nature, go for the included offence of assault.

Breaking and Entering
Breaking and entering with intent, committing offence or breaking out 348. (1) Every one who (a) breaks and enters a place with intent to commit an indictable offence therein, (b) breaks and enters a place and commits an indictable offence therein, or (c) breaks out of a place after (i) committing an indictable offence therein, or (ii) entering the place with intent to commit an indictable offence therein, is guilty (d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and (e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction. Presumptions (2) For the purposes of proceedings under this section, evidence that an accused (a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or (b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after 9

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(i) committing an indictable offence therein, or (ii) entering with intent to commit an indictable offence therein. Definition of “place” (3) For the purposes of this section and section 351, “place” means (a) a dwelling-house; (b) a building or structure or any part thereof, other than a dwelling-house; (c) a railway vehicle, a vessel, an aircraft or a trailer; or (d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes. R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20. Aggravating circumstance — home invasion 348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling-house was occupied; and (b) used violence or threats of violence to a person or property. Being unlawfully in dwelling-house 349. (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction. Presumption (2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein. Entrance 350. For the purposes of sections 348 and 349, (a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (b) a person shall be deemed to have broken and entered if (i) he obtained entrance by a threat or an artifice or by collusion with a person within, or (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening. s.349  Dwelling house - NOT business, NOT house under construction Deeming provision gets rid of break element of the offence, big change Intended to cover partly opened thing being opened further - wanted this to be B & E - expanding meaning of break S.C. opposed - arbitrary distinctions:  Fat burglar charged due to moving window, where thin burglar is not  S.C. has supported deeming provision even though removes element of offense

Causing a Disturbance
Causing disturbance, indecent exhibition, loitering, etc. 175. (1) Every one who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, (ii) by being drunk, or (iii) by impeding or molesting other persons, (b) openly exposes or exhibits an indecent exhibition in a public place, 10

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(c) loiters in a public place and in any way obstructs persons who are in that place, or (d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied, is guilty of an offence punishable on summary conviction. Evidence of peace officer (2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) or an obstruction described in paragraph (1)(c) was caused or occurred. *s.175(1)(a) – Two element offence 1. Conduct: Commission of one of the enumerated acts 2. Consequence: Causing a disturbance in or near a public place *Definition of disturbance – central issue in R. v. Lohnes  Broad range of meanings – from annoyance to violence  Must have some overtly manifested disturbance – requisite actus reus of the offence  TEST: Conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question o May be proved directly or inferred (under s.175(2)) o Act itself may in some cases amount to a disturbance AND cause (ie. don’t always need a separate secondary disturbance) o Skoke-Graham – MUST BE FORESEEABLE that conduct would cause such a disturbance  Convictions: o Ex: Swinimer – had to return to bedroom to calm children o Ex: R. v. Allick – barroom brawl o Ex: R. v. Chikoski – men working in field in distance looked up and stopped work  Acquittals: o Ex: R. v. D. (C.) – rammed car, reduced wife of the owner to tears, “emotional upset” insufficient for disturbance o Ex: R. v. Eyre – merely shouting abusive language insufficient o Ex: R. v. Wolgram – shouting obscenities at police in a barroom also insufficient because “no one disturbed by what occurred as to cause some disorder or agitation to ensue, no interference with the ordinary use by the public of a public place  Statutory Construction o Causing a disturbance is different from someone being disturbed by someone’s conduct o Context – NOT mere emotional disturbance, public place and examples of objectionable conduct narrow away from annoyance, o Heading suggest disorder rather than which interferes with ordinary use of a place, not mere annoyance of individuals o French “tapage” refers to external disturbance involving violent noise and confusion disrupting tranquility of those using the area in question o “persons” reference in s.175(2) consistent with relevance of people other than the accused’s conduct in response to disruption  Policy

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Narrow “public disturbance” interpretation more predictable, burden of worrying about upsetting other emotional tranquility far too low o Narrow is a better balance of individual liberty and public interest in tranquility o Criminal law improperly applied when nipping disturbances in the bud before any actual harm to public peace and order (though it could be argued as effective) Conclusion o Arguable that some external manifestation of disorder in the sense of interference with the normal use of the affected place is required

Indecent Acts
173. (1) Every one who wilfully does an indecent act (a) in a public place in the presence of one or more persons, or (b) in any place, with intent thereby to insult or offend any person, is guilty of an offence punishable on summary conviction. s.150 Definitions “public place” includes any place to which the public have access as of right or by invitation, express of implied; Nudity 174. (1) Every one who, without lawful excuse, (a) is nude in a public place, or (b) is nude and exposed to public view while on private property, whether or not the property is his own, is guilty of an offence punishable on summary conviction. *Includes, def’n of public place is non-exhaustive *s.174 purposefully distinguishes “public place” and “private property” suggesting that “access” in the public place definition means physical rather than visual access *explicated “exposed to public view” in nudity charge shows that visual access is included when desired *”intent to insult” in s.173(b) implies that (b) addresses visual access since need visual to offend, other interpretation renders (b) much less useful and redundant

Keeping a Bawdy House
Keeping common bawdy-house 210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Landlord, inmate, etc. (2) Every one who (a) is an inmate of a common bawdy-house, (b) is found, without lawful excuse, in a common bawdy-house, or (c) as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction. Notice of conviction to be served on owner (3) Where a person is convicted of an offence under subsection (1), the court shall cause a notice of the conviction to be served on the owner, landlord or lessor of the place in respect of which the person is convicted or his agent, and the notice shall contain a statement to the effect that it is being served pursuant to this section. Duty of landlord on notice 12

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(4) Where a person on whom a notice is served under subsection (3) fails forthwith to exercise any right he may have to determine the tenancy or right of occupation of the person so convicted, and thereafter any person is convicted of an offence under subsection (1) in respect of the same premises, the person on whom the notice was served shall be deemed to have committed an offence under subsection (1) unless he proves that he has taken all reasonable steps to prevent the recurrence of the offence. 197(1) Definitions: “common body house” means a place that is (a) kept or occupied, or (b) resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency. “public place” includes any place to which the public have access as of right or by invitation, express or implied. Test for indecent act: 1) Nature of the harm a. Risk of harm to individuals or society, undermines a value formally endorsed by Constitution or similar fundamental laws by: i. Conduct with interferes with others autonomy ii. Predisposing others to anti-social behaviour iii. Physically or psychologically harming ppl involved in the conduct 2) Degree of harm a. Degree that is incompatible with the proper functioning of society Could borrow “public place” analysis from Clark *Includes, def’n of public place is non-exhaustive *s.174 purposefully distinguishes “public place” and “private property” suggesting that “access” in the public place definition means physical rather than visual access *explicated “exposed to public view” in nudity charge shows that visual access is included when desired *”intent to insult” in s.173(b) implies that (b) addresses visual access since need visual to offend, other interpretation renders (b) much less useful and redundant

Duties Tending to Preservation of Life
Duty of persons to provide necessaries 215. (1) Every one is under a legal duty (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years; (b) to provide necessaries of life to their spouse or common-law partner; and (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. Offence (2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if (a) with respect to a duty imposed by paragraph (1)(a) or (b), (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or

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(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. Punishment (3) Every one who commits an offence under subsection (2) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. Presumptions (4) For the purpose of proceedings under this section, (a) [Repealed, 2000, c. 12, s. 93] (b) evidence that a person has in any way recognized a child as being his child is, in the absence of any evidence to the contrary, proof that the child is his child; (c) evidence that a person has failed for a period of one month to make provision for the maintenance of any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof that the person has failed without lawful excuse to provide necessaries of life for the child; and (d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life from another person who is not under a legal duty to provide them is not a defence. Duty of persons undertaking acts dangerous to life 216. Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing. Duty of persons undertaking acts 217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. R.S., c. C-34, s. 199. Duty of persons directing work 217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task. Duties:  215-217 can create duties when appropriate  216 - makes legal action illegal if done without care (not really an omission  215 - can be charged under s. 215 or under a different provision o About relationship! (should have been used by trial court in Browne) o "Necessaries of life" - food, shelter, clothing, medical attention o Question - whether it is your duty to protect your children from other ppls lawful behaviour o Then creates an offence: Failing duty o Second half only implies outside of family circumstance o Duty could also be charged for charge under 180 (common nuisance), 221 (criminal negligence), anything where a person can be guilty for failing to discharge a duty can be addressed here o 215(1)(c)(i) - ejusdem generis  217 o Creates a duty, NOT an offence 14

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Breach of this duty may be an element in another offence Must be a LEGAL and binding undertaking (Ie. NOT Browne), also don’t have to perfectly satisfy (Browne)

217.1 o Construction is the big one o This has created a duty in criminal law that can be used in common nuisance, criminal negligence… This DOES cover an omission.

Offences Relating to Proclamation
Reading proclamation

67. A person who is (a) a justice, mayor or sheriff, or the lawful deputy of a mayor or sheriff, (b) a warden or deputy warden of a prison, or (c) the institutional head of a penitentiary, as those expressions are defined in subsection 2(1) of the Corrections and Conditional Release Act, or that person’s deputy, who receives notice that, at any place within the jurisdiction of the person, twelve or more persons are unlawfully and riotously assembled together shall go to that place and, after approaching as near as is safe, if the person is satisfied that a riot is in progress, shall command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect: Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN. Offences related to proclamation 68. Every one is guilty of an indictable offence and liable to imprisonment for life who (a) opposes, hinders or assaults, wilfully and with force, a person who begins to make or is about to begin to make or is making the proclamation referred to in section 67 so that it is not made; (b) does not peaceably disperse and depart from a place where the proclamation referred to in section 67 is made within thirty minutes after it is made; or (c) does not depart from a place within thirty minutes when he has reasonable grounds to believe that the proclamation referred to in section 67 would have been made in that place if some person had not opposed, hindered or assaulted, wilfully and with force, a person who would have made it. *Note – absence of “for life” from proclamation leaves the alleged proclamation lacking a key element of its conveyance and removes an essential element from the act (circumstance) from a.68(b)

Murder
Homicide 222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Kinds of homicide (2) Homicide is culpable or not culpable. Non culpable homicide (3) Homicide that is not culpable is not an offence. Culpable homicide (4) Culpable homicide is murder or manslaughter or infanticide. Idem (5) A person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act; (MUST be an OFFENCE, criminal or otherwise) (b) by criminal negligence; 15

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(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully frightening that human being, in the case of a child or sick person. Exception (6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law. Murder 229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. Murder in commission of offences 230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146 to 148 (escape or rescue from prison or lawful custody), section 270 (assaulting a peace officer), section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage taking), 343 (robbery), 348 (breaking and entering) or 433 or 434 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if (a) he means to cause bodily harm for the purpose of (i) facilitating the commission of the offence, or (ii) facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm; (b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; or (c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom. (d) [Repealed, 1991, c. 4, s. 1] Classification of murder 231. (1) Murder is first degree murder or second degree murder. Planned and deliberate murder (2) Murder is first degree murder when it is planned and deliberate. Contracted murder (3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death. 16

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Murder of peace officer, etc. (4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is (a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties; (b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or (c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein. Hijacking, sexual assault or kidnapping (5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: (a) section 76 (hijacking an aircraft); (b) section 271 (sexual assault); (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (d) section 273 (aggravated sexual assault); (e) section 279 (kidnapping and forcible confinement); or (f) section 279.1 (hostage taking). *NOTE: R. v. Paré – s.231(5) – single transaction theory (continuing domination – purpose to discourage these combinations), absurd for hesitation (deliberation) to reduce sentence Criminal harassment (6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered. Murder — terrorist activity (6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity. Murder — criminal organization (6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when (a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or (b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization. Intimidation (6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1. Second degree murder (7) All murder that is not first degree murder is second degree murder.

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*Nette – must be an essential part of the killing for first degree murder (2nd degree from tying up victim who dies during escape) *Pare – murder while committing another offence can made it first degree (while – continuing transaction)* Harbottle – De minimus  substantial cause; holding someone while strangled counts Causations: *Smither and Nette – “significant contributing cause” likely the test in the SQ *Blaue – sexually assaulted and wounded Jehovah’s Witness who died by declining transfusion acquitted of murder and charged with manslaughter

Possession
Possession 4(3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. *NOT a common law analysis of possession *Case law on this statute may or may not be relevant to other statutory references to possession *s.3(a)(i) Personal possession  some type of physical control  Ie. have it on your being *s.3(a)(ii) Constructive possession  YOU HAVE DONE something WITH it  Making others your agent  Pham – if personally involved = constructive o Doubt about whether evidence sufficient to prove involvement  Chalk – again, personal involvement o if HE downloaded – constructive *s.3(b) Joint possession  knowledge AND consent  YOU haven’t done anything with it, but SOMEONE ELSE has and you know about it  Pham – NOT personally involved = joint  Chalk – someone else downloaded = joint  Knowledge: o Need act, not just acquiescence for knowledge  Consent: o Circumstances must show WILLINGNESS TO CONSENT, mere presence insufficient o Consent founded in Control = ability to choose  Terrence – Consent requires control (finding out that car was stolen after entering is NOT consent  Marshall – Need positive choice, acquiescing for comfort insufficient, weak alternatives = no choices  Ie. stayed due to dislike of alternatives, NOT drugs  Chambers – Knowledge of BF’s drugs in YOUR room which you control constitutes consent (due to CONTROL)  Chalk – Ability to instruct another to destroy porn reflects control  Social Pressure (ie. Party Host) - Societal acceptance  Harmful enough? 18

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 Awkward to walk away or kick people out  OUTCOME: Acquiescing to its use not consent, just “reasonable” o Socially joining a group knowing it is smoking drugs does NOT constitute consent  Court wants to protect people where drugs are an aside *Innocent possession (Aims of criminal law)– If the only reason you take possession is to get rid of it (ie. deliver to police) then excluded from guilt  Not satisfied when merely motivated by escaping liability (Chalk) Charter implication  Need act (Maybe R. v. Burt) o Can’t be punished for acts of others without control

Voyeurism
Voyeurism 162. (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (c) the observation or recording is done for a sexual purpose. Definition of “visual recording” (2) In this section, “visual recording” includes a photographic, film or video recording made by any means. Exemption (3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs. Printing, publication, etc., of voyeuristic recordings (4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available. Punishment (5) Every one who commits an offence under subsection (1) or (4) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. Defence (6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good. Question of law, motives (7) For the purposes of subsection (6), (a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and (b) the motives of an accused are irrelevant.

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*R. v. Clark – Would charge under (b) since actually nude. Strong defense under (6), “public good” of protecting children, entitled to do so, genuinely thought behaviour was inappropriate (policy implication leads to broad interpretation here – encourage reporting), proof B.R.D. that it was sexual?

Causation Tests
Death that might have been prevented 224. Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means. Death from treatment of injury 225. Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith. Acceleration of death 226. Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause. Killing by influence on the mind 228. No person commits culpable homicide where he causes the death of a human being (a) by any influence on the mind alone, or (b) by any disorder or disease resulting from influence on the mind alone, but this section does not apply where a person causes the death of a child or sick person by wilfully frightening him. *s.224/225 - causation tests, NOT offences, use this test with OTHER offences *s.224 - Smith best treatment is blood transfusion, he didn't get one, ORIGINAL WOUND is the cause. Failure to get the treatment doesn't prevent that from being the cause  Here, just need anything - surely right *s.225 (more significant than 224) - Not that the original wound is still operating, but the treatment itself causes the death. Only IN THAT situation because of the original dangerous injury.  Here, NEED DANGEROUS INJURY  Chain of causation, dangerous injury causes treatment causes death. Only doing that because of dangerous injury in the first place, sufficiently culpable with dangerous injury *s.226 - euthanasia  Inevitable death doesn't exculpate *s.228 – influence on the mind different from social pressure (ie. car racing Menezes)

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Topics
Aim and Scope of the Criminal Law
Represents an action of state against individuals (society against a person) rather than person against a person According to Ouimet Report (1969)  criminal law power applies as last step - 3 conditions to determine if it should apply: 1. Is it damaging to society? 2. Can behaviour be curtailed by non-criminal legal process 3. Would criminal offence punishment outweigh harm caused by act? (this should not happen) According to Law Reform Commission (1974, 1976)  criminal law as last resort - Act is considered a crime if it fulfills the following conditions: 1. Has it caused harm to others? 2. Is the harm serious in nature & degree? 3. Is this harm best dealt with through criminal law?

Sources of Canadian Criminal Law
Combination of statute and common law Historical area which has been into existence for a long time In Canadian terms, there are things that can only be done by statute

Offence Definition Canada’s Criminal Code - Enacted by parliament in 1892 - Modelled on the English Draft Code of 1879 (Jaime Stephen – English Jurist) - Federal and applies across Canada - Declares offences, defences and procedures - 1955 revision of the Criminal Code, Parliament went further than SCC and largely abolished common law offences, possibility of common law defences was preserved Class Notes: - not a good valid of reporting style from old cases. This case is one of the earliest that is being described - this case is example of one of the first: common law offence being created - Court of Star Chamber  a court that developed (sat in chamber with stars on ceiling) was to deal with minor problems (didn’t sit with jury). Not public court, happened in private. However no clear process with dealing with minor charges. Forgery, Consent, Conspiracy, were all developed by this court. In last 10 years started imposing new punishments (cutting ears etc). This was abolished. The Court of King’s Bench took over hearing these kinds of cases.  This is why the Sedley case is here - Nothing in statute or common law that made what Sedley did a crime - Sedley was indicted at Common Law with this offence and then was given probation (modern type of sentences) - What was Sedley convicted of: moral indecency. They actually don’t tell you what the offence is in this case. - Common law by its very nature is retroactive, and this is accepted. So what happened after this? - Canada was developed in 1867 which divided powers b/t provincial and federal gov’t 21

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In US Criminal Law is a state matter which is much different from Canada Canada, criminal legislation can only be enacted by the federal gov’t As long as you trying to enact in relation to provincial powers you can use a criminal type of system but based on something other than the criminal law. (provincial court hears about 80% of all criminal offences). Provincial can use criminal type procedures and offences. French/British brought their criminal laws with them. 1st major use of criminal law that was enacted by the CA 1867 was the Criminal Code (the nature of a code is usually all encompassing  answers all the questions therefore if something is not addressed in it then it doesn’t exist). The original Criminal Code is not all encompassing, therefore not intended to be everything but rather the intention was that of a normal statute (works alongside with common law). If common law is inconsistent with the statute then apply the statute and if the common law is consistent with the statute, then apply to the common law.

Doctrine of Precedent - No common law offences in Canada, legislation is the preeminent source of criminal law in Canada (charge must always allege a breach of statutory provision) - Common law helps guide judicial reasoning through relying on earlier decision (precedents) - In R. v. Henry, the SCC confirmed that its practice is not to depart from its own precedents unless there are compelling reasons to do so. - A distinction is sometimes drawn b/t the ratio decidendi and the obiter dicta and this is seen in R v. Henry Precedent - No common law offences still existing in Canada; legislation is the pre-eminent source of - criminal law in Canada - Common law rules, however, still play a major role in setting precedent for criminal offences - Tension Between Legal Theory & Legal Practice - Legal Theory = understanding how human communities might go about resolving a particular problem - Legal Practice = A practitioner needs to know how a court in his or her jurisdiction solved a problem yesterday and how it is likely to solve that problem tomorrow - Analyzing Cases =“w/o an appreciation of the principle that governs the decision one cannot even begin to pick out from the mass of facts that constitute each case those that are relevant. The good lawyer ... must appreciate the strengths & weaknesses of the arguments that support each legal rule. If the arguments are opened to challenge, they will be challenged ...” - These types of legal issues are enduring; always subject to interpretation Binding Precedent (Stare Decisis) - Prinec ipl ÷ all courts bind lower courts (in the same jurisdiction) - In Alberta (lowest to highest)  Provincial Court ÷ Court of QB ÷ AB Court of Appeal ÷Supreme Court of Canada  If there are two different decisions from same level of court ÷ choose one of them  Dissent at ABCA ÷ creates grounds for appeal to SCC - Why is there the doctrine of binding precedent?  To strike a balance between certainty & predictability on the one hand, and flexibility and justice on the other  To strike a ‘broadly acceptable’ balance between following previous cases and deviating from them, when the court considers that appropriate (i.e. changing social times) - How to distinguish previous cases? 22

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 If a judge decides that the facts of a previous case were materially different than the facts before him her, it is proper to distinguish the previous case  Material Facts Test ÷ If this fact had either not been present or had been present but different, would the decision still have been the same?

Structure of the Criminal Justice System
The Adversary System: Roles and Responsibilities Adversarial  method of ascertaining facts at common law - Method of inquiry in courts is much different from the scientific method - Distinguishing factor: relative passivity of the judge in the adversarial method. (the judges function is to make the ultimate finding of facts but not to personally investigate  to judge the merit of two positions) This method is justified by many lawyers as capable of promoting the finest approximation to the truth: - The diligence of the parties exposing evidence and the way they attack their opponents case is much better than giving resolution to a gov’t official - Bias of decision-maker is minimized since they play a passive role - However, this method is sometimes questioned:  Goal of lawyer is to present the best picture of their client and not the most complete.  If equality b/t the 2 parties is lacking, then the “truth” is view of the more powerful party.  Is this technique valuable in ensuring that all the available evidence has been presented by the parties for examination? Class Notes: Adversary Process: - Two sides with an impartial arbiter - There is a winner or loser - Use of evidence by 2 sides - Arbiter has to decide which argument is more convincing and not necessarily which argument is truthful. Problems with the Adversary System: - Access to justice (expensive system therefore some people have access more than others) - There are assumptions (example cultural)  adversary system has been open to other forms of dealing only if this can be sorted out before the court date. Crown Prosecutor: - Purpose is not to obtain conviction but to law before the jury what they consider to be credible evidence relevant to what is alleged to be a crime. - They must see that all facts are presented - Excludes any notion of winning/losing - Aka “ministers of justice” and not adversaries. If the Crown Counsel is not considered an adversary, then how do we have an adversary system? - Some prosecutors do not regard their role as non-adversarial - Suggestions that this system functions differently in civil and criminal matters. - Study found that defence counsel negotiated the release of 6 clients for every 1 released through adversarial means. Role of criminal lawyers involves more non-adversarial than adversarial functions. 23

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Carrie Menkel-Meadow  Women’s Lawyering Process: - Much of what has been written about human psychological development has been centred on male subjects therefore feminists have observed the law to be based on male values and behaviours - Highlights the duality of girls’ and boys’ moral development - Some women won’t play by adversarial rules (women might have more difficulty with fullcommitment to 1 side model of the adversary system)  There is evidence that women’s approach is seen in the legal system with alternatives to the adversary model  alternative dispute resolution  These new approaches are an attempt to modify the harshness of the adversarial process and expand the solutions available  Growing strength of women’s voice in legal profession may change the adversarial system into a more cooperative, less war-like system of communication. Madam Justice Bertha Wilson  Women Judges Make a difference? - In some areas of law, a distinctly male perspective is clearly discernible  legal principles that are not fundamentally sound and therefore should be revisited. - Does nature of judicial process present a hurdle so that legislatures rather than courts must be looked at for significant change - The mere presence of women on the bench will make a difference which will help to shatter stereotypes about the role of women in society that are held by male judges and lawyers - It is important to have this diversification since the public must perceive its judges as fair, impartial and representative of the diversity of those who are being judged. - Men see moral problems arising from competing rights (adversarial process) whereas women see more problems arising from competing obligations From the Aboriginal perspective, the criminal justice system is an alien one.  System is deeply insensitive to their traditions and values  In reality, incomprehensible for those who speak only Aboriginal languages Aboriginal Aspirations:  Have a vision of the justice system that is sensitive to their customs, traditions and beliefs  The system would pursue the larger objective of reintegrating the offender into the community as a whole  It challenges both common and civil law concepts since statute law becomes less important  Pluralistic system

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Court System and Classification of Offences Procedural Classification of Offences: - Common Law  distinction drawn b/t indictable offences (treason, felonies and misdemeanours) triable only by judge and jury and offences triable only summarily by justices of the peace sitting without a jury. - Criminal Code, distinguishes b/t indictable offences those triable only by way of summary conviction proceedings and those triable on indictment or by way of summary conviction proceedings The Procedural System - Division b/t summary conviction and indictable offences? 24

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Section 201(1) of the Criminal Code  every offence that is an indictable offence will tell you that in the Criminal Code. If it doesn’t say anything then it is summary conviction.  “not exceeding two years”  two years is the maximum, they will make it clear if it is a minimum sentence. Idea behind maximum offence is for the worst offender committing the worst crime. Naturally most of the sentence handed out will be less than the maximum  Section 201(2)  this tell you that it is a summary conviction offence but it doesn’t tell you what the punishment is which is pretty common for summary convictions. However there is a default clause in the criminal code section 787(1)  the maximum is 6 months and a fine of no more than $2000  Example: S.264(3) (a)  indictable for 10 years OR (b)summary conviction of 6 months and $2000.00. This example shows us the crown has the choice to decide whether indictment or summary conviction. Giving the crown this option is called Crown Option or Hybrid (if hybrid offence it will be originally treated as indictable). The reason we have this is because crimes can be committed in so many different ways that we need to give the Crown this kind of decision  Section 264.1(a) indictable offence for 5 years; (b) summary conviction of 18 months The Court System: - Bottom level is provincial court where the judges are appointed provincially and there is never a jury  It is designed to have reasonably quick trials  Will see summary convictions and indictments - Queens Bench (next level) can sit with or without a jury for indictable matters  Indictable can be heard in both this court and provincial court but this court level will not hear summary convictions - Court of Appeal (only Court of Appeal) - Highest is the supreme court of Canada - Two different trial courts in Alberta  Provincial Court and Court of Queens Bench and either of these will receive trials. Offences Triable only on indictment - Indictable offences divided into three categories: 1. Most serious offences  exclusive (no other court can try these offences) jurisdiction to the Superior Court of criminal jurisdiction 2. Least serious offences  absolutely (absolutely entitled to try these offences in the sense that he is not dependent on the accused`s electing to be so tried) within the jurisdiction of the Magistrate 3. Bulk of offences remaining  accused is entitled to choose the mode of trial  Accused will be put to an election and will be asked to choose whether to be tried s.536(2): o By a provincial court judge without a jury o A judge without a jury o Court composed of judge and jury  If accused does not elect a mode of trial, will be deemed to have elected trial by judge and jury Indictable Conviction: Three kinds of indictable offences and depending on the kind will determine process that is followed 1. section 553 of the code  Absolute jurisdiction offences which means jurisdiction of the provincial court 25

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Theft under  translates to theft under $5000.00 The judge has a right to send it up to the Courts of Queens Bench if there is right to do so....therefore not exclusive jurisdiction but absolute jurisdiction since the court can only make this decision o Once in court this will play out in the same way as a summary conviction o Less serious indictable offences, will automatically go to Provincial court which the accused has no choice. 2. section 469 (which is at other spectrum from section 553)  Queens Bench has right to try all indictable offence and trial has right to try indictable offences except for those listed in this section o Murder automatically goes to the court of Queens Bench which is called exclusive jurisdiction (the provincial court does not have the power to try a murder offence  they have no jurisdiction over it) o A murder offence will go to Court of Queens Bench and will normally be heard with a jury (this is the default). But if the crown and defence agree, it can be heard without a jury  this developed with respect to the North West Territories since this area was so sparsely populated that is was hard to put a jury together. When confederation came along, this rule came along with Alberta (Alberta until about the 80s the only province on which an accused could be tried for murder without a jury). Realized that this made no sense that it only applied to Alberta and now applied across the country o Process:  There will be an information,  there can be a pre-trial hearing (aka preliminary hearing) to determine if there is enough information for the accused to be put on trial (this is actually heard by the provincial court).  Once the accused has had the preliminary hearing, the provincial court will determine if there is enough evidence. If there is enough evidence, an indictment will be laid by the Court of Queens Bench at which point a trial date will be set. o Plea bargains can occur in this system as well  but you can’t get a finding of guilty/not guilty in the provincial court. 3. When you get an offence, this is the process: a. go to section 553, if it is not in this section then b. go to section 469, if it is not in this section then, c. go to section 536(2) (all the rest of the offences the accused has an election which means the accused can elect what court will hear the case)  the accused is appearing now in front of the provincial court, the charge is read to the accused  before the accused makes a plea, the accused has to elect which court will hear the case.  If they will plead guilty, they will most likely choose the provincial court (without inquiry) as they will want to look like they are cooperating with the court in order for them to get a deal  If they have a complicated legal questions that they want the court to deal with they will most likely choose the Court of Queen’s Bench with no jury (this Court has the time do research the issues unlike the provincial courts)  If you have a case where the law is against you and the facts are against you, might choose the Court of Queen’s Bench with a jury.  The accused can have a preliminary inquiry in the Court of Queen’s Bench

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 If the accused doesn’t elect then by default the accused will go to the Court of Queen’s Bench with a jury. This election process is confusing for some so the accused will be given time to talk to a lawyer to help in that decision. Even when you have an indictable matter the vast majority of those cases will be tried by a provincial court because there are all the offences in s553 that will automatically go the provincial and it is most likely that through an election the accused will choose provincial courts.

o o

Summary conviction Offences: - Part XXVII of CC sets out procedure for the trial of summary conviction of offences - Max penalty for any summary conviction offence unless otherwise provided is $2000 for 6 months imprisonment or both (s. 787(1)) Summary Conviction Matter: - Two ways that this can come before the court:  Almost always come before court by having the police offer swear out an information (document in front of provincial court judge stating that the officer has reasonable and probable grounds to believe that a person has committed a crime)  The other way is where the police officer arrests the accused. Arrest  taking person into custody. Need two things for it to be considered arrest:  Control of the accused (touching the accused)  Telling he accused he is under arrest for whatever offence. [Frequently with less serious matters people won’t be put into jail but released. Just because they are released doesn’t mean they are free. Once released they will be provided with a piece of paper to appear in court to deal with charge, if they don’t appear then they will be provided with a “bench warrant.”]  Bail is very rarely used in Canadian criminal procedure, only used where the accused doesn’t live within a certain distance of the area in order to ensure that they will appear  One of the big problems  if the person has no fixed address. It is possible that they will be kept in custody and brought into court to deal with charge. o When arrest occurs – they have not sworn anything. This happens after arrest where they charge the accused with the offence they have seen. If the judge says that there is no such offence or they won’t accept this offence (this happens rarely), then that appearance notice won’t be confirmed and accused won’t be required to appear. - Process @ Provincial Court: o Accused will go to Provincial court with Information. o Information will be read out and then judge will ask accused how they want to plea (this is the only way a matter may be started  Arraignment) o At this point the accused doesn’t have to answer the question; they may consult a lawyer (or may be asked to talk to duty counsel) before they say how they want to plead. If this occurs, the case is adjourned for about a week. o Plea bargaining can occur at this time in between accused and lawyer/duty counsel. Bargaining needs to be done before the plea since counsel can give great advice to get a lesser sentence than they might otherwise get. The reason this works is pressure on the system not to have a trial and therefore there is pressure on plea bargains.

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When they return to court they will be expected to have consulted a lawyer (or duty counsel). If the accused pleads NOT GUILTY then it will be set for trial (where the crown will have to prove the case.  It is set for trial in the provincial court, where each party will present their cases  Provincial Court is judge alone, very frequently there is an oral decision in provincial court.  Following the judgement, if the accused is found not guilty then matter is done  If they are found guilty then there is matter of sentencing which can be done right away or can be given adjournment (in order for accused to prepare presentation). Adjournment by sentencing is given by judge.

Difference between Indictable and Summary Conviction a) Arrest – in summary conviction matters, police must have seen the crime in order to arrest – otherwise, they have to ask permission of judge to arrest. With indictable and hybrid, there is a broader power of arrest b) Identification – fingerprinting if indictable or hybrid but not if summary c) Jurisdiction – Indictable can be tried in Provincial Court or QB. Summary is tried in Provincial Court (no options and no jury) d) Sentencing – charges are more serious for indictable offences even if the offence is exactly the same (ie: in hybrid cases). Indictable carries a max penalty of 5 years (unless the code states otherwise) [s.787] and summary conviction max is 6 months (unless code states otherwise) [s.743] e) Limitation Periods (limitation on time that Crown has to lay charge) – Summary Conviction have 6 month limitation to charge. With indictable there is no limit of time to charge f) Appeals – All appeals on summary conviction matters go to QB [s. 812 and s.813]; all appeals on indictable matters go to Court of Appeal [s.675 and s.673] g) Pardons – Conditional in part on whether offence was summary or indictable Judge & Jury:  Questions of law are decided by the judge; questions of fact are decided by the jury.  Can the judge put info on evidence out of their mind if the evidence is rendered inadmissible? Judges have experience narrowing their views to consider only the evidence that is relevant. Judge won’t jump to a conclusion as the average person might.  The Judge instructs the jury on the law which governs the case. The need to state the law accurately is obvious. If case is appealed, counsel with scrutinize the charge for all possible errors. Therefore, many judges include long judgments in their jury instructions. This results in some uncertainty of whether or not jury members understand the Judge’s instructions. (Understandability is a requirement of a jury’s instructions!)

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Comes before the court in 2 ways: 1. PO swear out an Information 2. PO arrests accused.

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Judge will ask accused how they want to plea (Arraignment)

Accused can have matter adjourned to speak to lawyer/duty counsel

Accused must plea guilty or not guilty

Plea bargaining can occur but must be done prior to plea.

Accused pleads guilty

Accused please NOT guilty

Speak to and Sentence

Matter is set for trial where the Crown will have to prove its case.

Found NOT guilty (matter is done)

Found Guilty and therefore sentence is given

Crown Election offences: - Legislation can sometimes make the offences punishable on indictment or on summary conviction at the option of the crown Hybrid Offences - Can go either summary conviction or indictable - Get in front of the court, the court reads out the charge and will immediately ask the crown “how do you wish this to be tried”, the crown will then choose. If the crown chooses summary conviction then proceeds through provincial court. If the court chooses to proceed through indictable offence (not in section 469, will first look at section 553, if it is not in section 553, then the accused will have the election and choose which court to be tried in) When looking at cases from now on, refer to criminal code and ask yourself how this case would be tried.

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Summary Conviction Indictable Limitation Period 6 months (must be brought to no limitation period (only (not pre-trial issue) court within 6 months of exception is treason which has 3 event having happened) year limitation period) This is why Crown would elect to go through indictment since it has no limitation period Arrest without warrant Finger-Printing Appeal police must have seen the offence Police must have reasonable and probably grounds (far broader than summery convictions) must submit fingerprints

Pardons.

not required to submit fingerprints go to Court of Queens Bench goes to Court of Appeal in Alberta (1st Court of appeal for summary convictions) person entitled to apply for a person entitled to apply for a pardon after 3 years pardon after 5 years.

Jury in Criminal trials: - Questions of law decided by the judge, questions of fact are decided by the jury - Questions: Who applies to the law to the facts? Since jury gives verdict of guilty/not-guilty, it therefore receives this responsibility - The judge instructs the jury on the law which governs the case - Jury Instructions must satisfy: 1. Need to state accurately the relevant law 2. Need to state the law so that the jury understands it  this is based on the judge being able to understand and apply the law. Two things about information: 1. Charged accused has to answer to 2. Gets accused in front of the court Doesn’t have to be a police officer swearing in the information, it could be a citizen...must it is most probably a police officer. What was the accused charged with? - S. 342(1)steals credit card - S. 368(1)uttering forged document  description on Information document uses exact same language as section of the criminal code - S. 362(1)false pretense - S. 342(3)credit card data - S. 403, personation - S. 366(1), forgery - S. 380  fraud, which is a general offence but this would fall under this case - S. 397 (1) ON MIDTERM EXAM, MAY GET QUESTION WHICH YOU WOULD HAVE TO FIND THE OFFENCE AND EXPLAIN IT. 30

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S. 368(1) of the Criminal Code: - what was the nature of the offence: hybrid offence (crown will decide at initial hearing whether it will be tried as summary conviction or indictable offence) - if it was decided to be tried by summary conviction  immediately go to plea - if crown decides to go through indictment , then will look at Criminal code section 469 and 553 (this offence falls under neither of these two sections), therefore it goes to election. Provincial court and then ask accused to plea. Burden of Proof: Reasonable Doubt Burden spectrum (Starr) No guilt (0%) ---------------------------------BOP (50%)------------------------BRD---Complete guilt-(100%) Air of Reality Presumption of innocence: Burden of proof on crown to proof every element of the offence including pertinent facts B.R.D (Woolmington) Charter: (deal with this quickly, don’t go into Oakes) -s.11(d) - Presumption of innocence: Violate s.11(d) if can be convicted WITH a reasonable doubt present (applies only to people, need possible imprisonment) -s.1 - Justification: If s.11(d) violated, can save under s.1 Change to persuasive burden - Reverse onus: If wording is, “without lawful excuse the proof of which lies on the person” then placing persuasive burden on accused  Ex: Presume intent to traffic from possession and compel def. to disprove on B.O.P (Oakes)  Always violates s.11(d) and is harder to save under s.1  Strict liability is constitutional if no undue stigma from charge (Wholesale – misleading ads vs. theft) Change to evidentiary burden - Rebuttable presumption: If wording is, “absence of (any) evidence to the contrary” then placing evidentiary burden on accused and attaching it to an essential element of an offence which reduces the persuasive burden of the crown (Downey)  Ex: Presume living in brothel is living off the avails of prostitution unless def. raises an air of reality in defence to return persuasive burden to the crown  Always violates s.11(d) and is easy to save under s.1 Defence: If dealing with a defence, then placing an evidentiary burden on accused and attaching it to a defence which does not reduce the persuasive burden of the crown (Ex: defences, crown still needs to prove persuasive burden whether or not a defence is raised)  Doesn’t violate s.11(d)  Ex: Defence of necessity, duress Accused has the right to be presumed innocent Crown must normally bear the burden of proof Burden of proof is totally separate from adversary system. You have burden of proof even in an inquisitive system.

Persuasive Burden of Proof v Evidential Burden of Proof - Persuasive Burden of proof – at the end of the trial once all the arguments have been made, has the crown (or plaintiff in civil trial) satisfied the overall burden of proof? - In Criminal Law – burden is on the Crown and is to the level of beyond a reasonable doubt 31

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In Civil Law – burden is on the Plaintiff and is to the level of a balance of probabilities Occasionally in Criminal Law the onus of proof may be reversed and put on the accused instead of the Crown. However, if this is done then the level is on a balance of probabilities Evidential Burden of Proof – must put into evidence some kind of evidence to provide a foundation for the proof. Need evidence to persuade the court.

BURDEN OF PROOF - There are different kinds of burdens of proof - Becomes an issue in Woolmington because one of things court says is that Courts in the past were referring to one kind but were interpreted as referring to a different kind 1) Persuasive Burden – what we normally talk of. At the end of day when all evidence is in, who has burden of proving that the offence has been committed, the defence has been disproved. - This is what’s referred to in constitutional issues - Normally on the Crown at level beyond a reasonable doubt 2) Evidentiary Burden – who has the obligation to ensure that there is evidence about this issue available at trial. - Given rise to air of reality test - Issue here is really when can the court consider other options that may be available - For certain things we have said that they can only start speculating about them or taking them into consideration when there is enough evidence - Ex: mistake of fact. It’s up to the defence to make sure that there’s evidence that would support a mistake of fact argument. Court can’t deal with it without evidence. - Normally evidentiary burdens are pat of the persuasive burden - In all defences, the evidentiary burden is on the accused - Issue is whether there’s evidence, not who presents it. Evidence may come from Crown 3) Tactical Burden – not strictly a legal burden but a factual burden of proof - “If it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder [Woolmington] - This is what says to the defence that if you don’t do something now, the accused will be convicted. There’s enough evidence on the table to convict unless you do something about it. Crown has met the persuasive burden but trial isn’t over so you have tactical burden. - Burden is realistically on the accused - This dictates a lot of trial strategy - Not a legal burden of proof – it’s just a reality

Statutory Interpretation in Criminal Law
General Principles The pre-eminent source of criminal law is legislation  judges are given the task of interpreting the legislation and applying it to the activities in their particular case Even when you are looking at cases a lot of what you are looking at is statutory interpretation with respect to the case at hand Strict Construction General Rule – If a penal provision is reasonably capable of 2 interpretations, the interpretation that is more favorable to the accused must be adopted. The general rule is that penal statutes are to be construed strictly. Class Notes: - Something that applies to mainly two areas of law: Criminal law and Tax Law 32

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The result of this is a general rule of strict interpretation  on page 23 (judgement from a very highly respectful judge), do the process of interpretation first; if this leads to a clear result then that is the result. It is only if you have gone through it all that it doesn’t lead to a clear interpretation then the general rule is that the interpretation should be strictly interpreted in favour of the accused. Just because there is more than one way to interpret doesn’t mean you automatically apply the strict interpretation, you would have to look if one is more relevant than the other. Interpretation Acts Canadian Interpretation Act, s.12 Every enactment shall be deemed remedial, and shall be given such fair, large, and liberal construction and interpretation as best ensures the attainment of its objects. Ontario Interpretation Act, s.10 Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of anything that the Legislature deems to be for the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

The Criminal Act (Actus Reus)
General Principles Actus reus  guilty act Mens reus  guilty mind The intent the Act must both concur to constitute the crime Opinion acted on in this book is that the expressions actus reus and mens rea are too obscure to be of practical utility in an exposition of the modern law in any context. These words come from the maxim actus non facit reum nisi mens sit rea  no guilty act without a guilty mind The Crown bears the burden of proving all the elements of an offence. Unless all elements of the offence are proven by the Crown beyond a reasonable doubt, whether conduct, circumstance or consequence, the accused cannot by found guilty. Class Notes: Book states that these are terms of art and they should be abandoned as they create confusion. Part of the problem is that we don’t have any great general language that could replace the above two concepts. Be careful, do you use current language to express these general ideas. Sometimes you will see fault referred to as intent. General Principles 3 General elements that we are going to look at in the context of this course: 1. Act 2. Fault (can be something like intentions, negligence) fault is standard that you are applying to a person state of mind 3. Defences

The basic framework of the criminal law can be divided into 3 sections: i. ACT ii. FAULT iii. DEFENCES 33

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The Criminal Act (actus reus): o What are the elements that need to be proven in order to convict?  Those elements of the offence that actually happened  Found by looking at the requirement of the code, regulation or statute o Without the act, nothing else exists! o Actus reus – need to know what it means, don’t need to use it There are 3 types of act elements: 1. Conduct – what must they have done? Cannot be pure thought 2. Circumstances – i.e. consent in assault 3. Consequences – i.e. common assault vs. bodily harm You do not need all 3 elements of the act Can help in determining the fault element – i.e. s. 456  Conduct – defacing or uttering  Circumstance – current coin Actus Reus = the criminal act – must be defined in Canadian legislation. Therefore, it means whatever the language in the statute says. “A voluntary act of commission or of omission, in certain cases only, by a human being which caused consequences if consequences are part of the definition of the offence. Actus Reus is Required Because: - Impossibility of proving a purely mental state [Brian C.J.] - Difficulty of distinguishing between day-dream & fixed intention [Glanville Williams] - Undesirability to criminalize a mental state where accused is too irresolute to act [Glanville Williams] - All mankind would be criminals if no actus reus required [J.F. Stephen] Elements of Actus Reus Normally it will involve at least one of 3 elements (these are not absolute or always required. It’s more of a tool to help you identify the important elements of an offence) (a) Conduct - Overt Act - Words - Words (spoken or written) are also part of conduct. - Omission or failure to take action - Conduct can sometimes involve doing nothing when something is required to have been done - Attempted or unfulfilled action - Do not always require the action to be a completed action. An attempt is also punishable. Ex: unfulfilled, attempted, conspiracy, counselling, and accessory after the fact. - Participation in crime – Ex: aid and abet - Thoughts - Must be evidenced in the real world (not existing as thought alone). Just thinking something is not sufficient to make someone guilty of criminal conduct. We do not criminalize thought because it is difficult to distinguish idle thoughts from real intentions and if you punish people for what they thought you would spread criminal law very wide. - Remember that this is Parliamentary jurisdiction – they can make thoughts a crime if they want to (although it would probably be challenged under the charter) (b) Circumstances 34

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(c) This is something that the Crown must prove and is included in the Code. These are limitations on the conduct that make it a criminal offence. Ex: “without the consent”.

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Consequences (Results) Most consequences are death, bodily harm… This element is not as frequent as the other two; only some offences require consequences. Causation is establishing the connection between the conduct and consequences.

Specific Examples/Illustrations Class Exercise, Pg 188 of Textbook Determine what elements the Crown would be required to prove to establish that an accused is guilty of the following Criminal Code offences: Defacing current coin s. 456(b) 1) Look at definition of uttering (s448), which mean putting into circulation 2) They need to prove that it is a “current coin”. Look at definition of “current coin”, this definition states “means” which means that definition in exclusive. This definition isn’t necessarily just for Canadian coins 3) They need to prove that it is defaced. There is no definition in the criminal code therefore can use the ordinary meaning of the word. Just because there isn’t fault language doesn’t mean there isn’t fault. Escape from lawful custody s. 145(1)(a) 1) Proof of in lawful custody 2) Proof of escape Endangering safety of ship s.78.1(2)(a) 1) Proof of violent act, no definition provided of violent act 2) Proof that it was against person and this person has to be on board 3) Proof that it likely to endanger safety of ship or platform  this definition relates to safe navigation of the ship and because of the words “likely to” could lead to no endangering 4) Look at definition of ship s78.1(5) Carrying a weapon while attending public meeting s.89 1) Proof of attending or on the way to a public meeting 2) Proof of carrying a weapon etc., defined in s. 84 3) Proof without lawful excuse Public Mischief s. 140(1)(c) 1) Proof of intent to mislead 2) Proof of connection b/t intent and acts 3) Define peace officer 4) Proof of offence (unless a provision makes it an offence, it is not an offence under CC). What is required here is that the report has to be something that is defined. Breach of trust by public officer s.122 1) Accused is an official as defined by s. 118 and s.2 2) Establish that there was fraud or breach of trust and look into their definitions 3) Establish connection to office 35

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4) Whether or not

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Assault s. 265 Assault can be committed in three different ways: First Way 1) No consent  it is not a defence, the crown must prove no consent, therefore the onus of proof is on the crown. 2) Force direct or indirect  there is a force and it doesn’t matter whether it is applied directly or indirectly. 3) Intentional  fault requirement is that there is intention Second Way: this is more assault in tort terms. Difference b/t this way and the above way is that this one does not include “consent” 1) Attempt or threat (not a verbal threat) 2) Action or gesture 3) Belief in ability Third Way: 1) Openly wearing weapon 2) Accosts a person s. 267  The crown has to prove the elements of assault and in addition to this they carrying weapon or causing bodily harm. Language used: Act has three different kinds of elements 1) Conduct (will normally look for application of force)/Status offence (you are being something, you are being drunk) 2) Circumstances (circumstance in an assault, for instance, is without consent; another circumstance could be assaulting a police officer) 3) Consequences, not all offences have consequences (an example would be assault causing bodily harm  Crown has to prove that assault cause bodily harm to the victim. Causation is a difficult issue) What does this all mean  Crown must prove all necessary elements of offence beyond reasonable doubt What you want to get out of these cases: Should be learning how to interpret the particular offence (precedents for exam) Should be learning how the courts go about interpreting a piece of legislation and therefore how we should be presenting the arguments.

Special Issues: Actus Reus
Consent in the Context of Assault/Sexual Assault - Absence of consent is an essential ingredient of the actus reus. It is not an issue of mens rea. - Consent is not really a defence but forms part of the offence (specifically, absence of consent is part of the offence) - But there is an argument that consent forms part of a defence even in the offence itself says nothing about consent Consent - Only become a criminal offence when victim doesn’t consent to them. - Easy way to think about this is in the context of sexual assault. - The whole concept of consent and what it applies to has had difficulties right from day one. 36

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General Limits to Defence of Consent: 1. Cannot consent to death [Jobidon] and [s.14] 2. Children cannot consent to sexual offences [s. 150.1 and s.159] 3. Children cannot consent to abduction [s.286] 4. For assault, no consent if: by force, threat of force, fraud, or exercise of authority [s.265(3)] [Jobidon] - remember: bodily harm is very broad – doesn’t take much to get there 5. No consent if weapons are used [R. v. Gur, 1986 NS CA] 6. Consent achieved by fraud (need significant risk of serious harm) [Cuerrier] Defence of Consent will work if: 1. Sporting activity or medical treatment [mentioned in Jobidon] 2. Minors are involved [Barron] 3. Consented to core act if nature & quality unchanged [Bolduc&Bird] 4. “Breaking-in” with consent of owner – if true consent there’s no actus reus *Lemieux] 5. Don’t have to explicitly mention consent for it to be a possible defence *Lemieux] Omissions  Deals with the failure to act  One necessary element is the knowledge of the act that is occurring (i.e. Professor Stalker has a heart attack in her office and no one is there – then that does not amount to a problematic situation and we students have no responsibility, however is the Anne Stalker had a heart attack in class then we have a responsibility and if we did not act it would constitute to as an omission)  Policy issues arise when dealing with omissions  If you have an offense that has a specific omission then it is very cut and dry – problems arise when you have an offense that does not clearly cover omissions and commissions. Then the court must try to interpret the CC wording and this is where the problems arise.  Should we be criminally responsible for not helping someone? Generally the answer is NO  Unless there is a clear message that omissions should be covered, criminal law will not cover them  JUST BECAUSE YOU OMMIT TO ACT DOES NOT MEAN IT IS AN OFFENSE – the omission must be outlined in the offense, you may have to ask whether failing to act results in enough to be charged under an offense.  Under the law you have no obligation to act (you can stand there and watch a baby drowned in a puddle)  S.219 CCC Criminal Negligence is most often used – doing an act or commission of an act or an omission to something you need to do (duty must be created), wanton and reckless disregard for others.  IF UNDER THE CODE IT REFERS TO A DUTY YOU SHOULD ASSOCIATE THAT WITH AN OMISSION OFFENSE i.e. s 216 by legislating parliament has made it clear that the individual is expected to act  By its nature an omission is a vacuum – hence why a court refrains from trying to make an omission a penalty. HOWEVER the legislature may create an offense out of an omission.  Omissions apply when someone has let something happen by doing nothing. Recognize that if the legislature makes it an offence not to act in certain circumstances is not a problem. The problem really is in what situations will we take an offence within the code and convict a person of that offence when their involvement was to let it happen, rather than to create the situation themselves. Why are we concerned about this?  Any such attempt would have to take problems of mental and physical challenges into account. It must be well defined when a person has an obligation to help. 37

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 If we included all omissions into the code it is unclear when the obligations would cease.  There is a distinction that we recognize and has to do with everyone’s liberties. This would make

us responsible for other people whether they want you to be or not. 1. Go through the section, set out all the elements of the offence 2. Be aware whether the “thing” the accused has done that meets the elements is an act or an omission 3. If there is a failure to act, is that part of the larger act? i.e. practicing medicine without a license 4. Is there a duty? (code, legislative, possibly common law)
 Deals with the failure to act  One necessary element is the knowledge of the act that is occurring (i.e. Professor Stalker has a

heart attack in her office and no one is there – then that does not amount to a problematic situation and we students have no responsibility, however if Anne Stalker had a heart attack in class then we have a responsibility and if we did not act it would constitute to as an omission)  Policy issues arise when dealing with omissions  If you have an offense that has a specific omission then it is very cut and dry – problems arise when you have an offense that does not clearly cover omissions and commissions. Then the court must try to interpret the CC wording and this is where the problems arise.  Should we be criminally responsible for not helping someone? Generally the answer is NO  Unless there is a clear message that omissions should be covered, criminal law will not cover them  JUST BECAUSE YOU OMMIT TO ACT DOES NOT MEAN IT IS AN OFFENSE – the omission must be outlined in the offense, you may have to ask whether failing to act results in enough to be charged under an offense.  Under the law you have no obligation to act (you can stand there and watch a baby drowned in a puddle)  S.219 CCC Criminal Negligence is most often used – doing an act or commission of an act or an omission to something you need to do (duty must be created), wanton and reckless disregard for others.  IF UNDER THE CODE IT REFERS TO A DUTY YOU SHOULD ASSOCIATE THAT WITH AN OMISSION OFFENSE i.e. s 216 by legislating parliament has made it clear that the individual is expected to act  By its nature an omission is a vacuum – hence why a court refrains from trying to make an omission a penalty. HOWEVER the legislature may create an offense out of an omission.  Omissions apply when someone has let something happen by doing nothing. Recognize that if the legislature makes it an offence not to act in certain circumstances is not a problem. The problem really is in what situations will we take an offence within the code and convict a person of that offence when their involvement was to let it happen, rather than to create the situation themselves. Why are we concerned about this?  Any such attempt would have to take problems of mental and physical challenges into account. It must be well defined when a person has an obligation to help.  If we included all omissions into the code it is unclear when the obligations would cease.  There is a distinction that we recognize and has to do with everyone’s liberties. This would make us responsible for other people whether they want you to be or not. What is the charge? What are the requirements for guilt? Omissions are about asking people to do something, rather than simply refraining from doing something. You must focus on what they failed to do, rather than what they did (ie. Turning and walking away is irrelevant really, you must focus on not disclosing info.)

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Omission = the failure to do something which it is one’s duty to do, or which a reasonable man would do. General common law principle is that criminal responsibility for omissions is limited to cases where there is a legal and not merely moral duty to act. - Failure to fulfill moral duty => insufficient to attract the criminal sanction - Vital question => whether there is legal duty to act (difficult to answer with precision) An omission can be applied in any section of the code. However, the Crown will always argue that the section was not intended to cover omissions, only commissions. It is relatively rare to charge someone with an omission Ways to impose Liability for omissions: 1) Continous Act 2) Duty created under common law a) Duty to remedy one’s own fault 3) Duty created by statute Six ways to impose liability for omissions: 1. Express legislation with unambiguous language that makes it an offence not to do something 2. Interpretation i.e. dog in trap, doing nothing is the act 3. Breach of Duty--liable for an omission that is a breach of a positive duty 4. Duty to remedy one's own fault – Duty theory (Miller) 5. Continuous Act theory (Fagan) 6. Reciprocal duty (Moore) 7. Common Law?? (Thornton) 8. Undertaking (Browne) Acting Through an Innocent Agent Notes: See R v Michael Set up a time line to see if there was a break in the chain of events. Does the consequence stem from the actions of the accused in the chain of events?  Did she meet the requirements for culpable homicide? o Did she do an unlawful act? Look for an offence having to do with poisoning people  look up “poison”  no provision on poison  poisoning is a type of assault against a person, so look around the assault sections  you find s. 245: 245. Every one who administers or causes to be administered to any person or causes any person to take poison or any other destructive or noxious thing is guilty of an indictable offence and liable (a) to imprisonment for a term not exceeding fourteen years, if he intends thereby to endanger the life of or to cause bodily harm to that person; or (b) to imprisonment for a term not exceeding two years, if he intends thereby to aggrieve or annoy that person.  Here there was clearly an attempt to administer the noxious substance, even though the administration actually did not take place as A intended; still, she did something with the intention of the administration being carried out  So there is clearly an unlawful act o This unlawful act contributed to the death of the baby, so A caused the death  The nanny could be held somewhat responsible, but she did not know the substance was a drug, as small dose of which could cause death 39

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 

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It doesn’t matter if other people were somewhat responsible; the mother here was primarily responsible for the death Ask yourself  how can I prove an unlawful act? Then apply that to the case at hand

class :  Notice the interplay of morality here. Therefore create a law such as “acting through innocent agent”. Interesting question  what would have happened if the operator of the daycare has administered the poison?  We ask this from 2 perspectives. o if the operator isn’t a totally innocent agent, would that let Miss Michael off the hook? o Is the daycare operator’s degree of lack of innocence a way out for them? Crown might make an argument based on s.215 against the daycare operator here as the child being under the charge of the daycare operator. But the question is what necessities of life has the daycare operator failed to provide? For Charter argument: N.B. Charter binds government vis a vis other people. Not one person and another. You can have more people accused in a situation like this, where you have circumstances in which the daycare operator has acted like this, but the mother would nonetheless be charged. For Canadian authority: R v. MacFadden (1971) (N.B.C.A.) and others (p.314) Note: This acting through innocent agent idea can also be used if you use an animal such as a dog to perpetrate a crime for you. Also note that there is wide criminal responsibility in Canadian law beyond the actual perpetrator to those who merely assist or facilitate. Causation  Causation is the connection b/w the unlawful act in the section you are applying and the consequence a. Consequence must match the prescribed event in the section of the code:  For example if it is assault causing bodily harm the consequence must be bodily harm.  Causation has some of the elements of tort causation – IN criminal law in Canada we do not use reasonable person  When is causation is an issue: a. In order have an offence under criminal negligence you need to have a consequence i.e. death or bodily harm b. So when you have a consequence you can develop causation  We use the Smithers test in looking at causation. However there are different tests a. Smithers Test: If it is a contributing cause outside the de minimus range pg 313 second last graf.  Below de minimus = just a trivial connection b/w the consequence and the act in question  The mere fact that there may have been another cause means nothing  Once you have established a contributing cause, there are some cases where causation is not there – these situations are few and far between. (Blaue, Bingapore etc) b. Causation in fact test – developed by SCC

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There is a connection in the real world b/w the unlawful act and the particular consequence. It does not have to be the ONLY cause it has to be ‘A’ cause  The factual cause must pass the de minimis test – the connecti0on b/w the unlawful act and the consequence cannot be trivial.  Definition of intervening act: yes your conduct was part of the act, but some other party’s action was so severe that it outweighs the other conduct.  If you have cause in fact then you look for cause in law which is stuff like remoteness, intervening act, and all the other crap they mention in Smithers c. “But for test” or Sine Qua Non test  Without x unlawful act the consequence would not have happened.  Applies to some, but not all offences the actus reus requires the causing of certain consequences, these offences include homicides (s.222), willful damage to property (s.430), arson (s.433), causing bodily harm (s.221) or death (s.220) by criminal negligence, aggravated assault,  There are offences with particular consequences attached to it (such as death, bodily harm, maiming, damage to property). As a result they carry a heavier penalty – why? Responsive to a societal need to recognize the harm caused. There is an intuitive response that these crimes are worse than others therefore have more serious penalties.  Bright line test: causation implies/means a more serious crime…?!  Cause includes real cause, proximate cause, direct cause, decisive cause, condition, inducing cause, contributory cause, remote cause, occasional cause…  There are certain antecedents, never a single antecedent, but always a set which brings the effect sure to follow.  What one of the various circumstances necessary to the death we shall single out as the cause.  Proximate cause: the nearest known cause considered in relation to the effect and in contrast to some more distant cause.  De minimus: trivial, the minimum, is what amounts to bodily harm  Causation does not arise all of the time in criminal law. We still rely on the 1978 Smithers case. There are only very specific forms of consequences that are taken into consideration. There is a specific fault element, which has been downgraded in some offences. When there are difficult cases, frequently there is plea bargaining to a lesser charge.  P. 184: Homicide (s. 222): is not an offence on its own, this is simply a definition. You can cause the death of someone and it is not an offence. It must meet one of the requirements set out in the CCC. Non-culpable homicide is not an offence, culpable homicide is an offence. S.222(5)… by threats, by deception, willfully frightening… etc.  S. 233: Infanticide, s.237 punishment for infanticide  S. 234: manslaughter (s.222(5) definition of manslaughter)  causes death by means of an unlawful act (an offence) Tests used to determine causation to link behaviour described in the code and the consequence described in the code:
 Factual Causation: “But for” test: to establish factual causation. “But for” the criminal activity of

the accused the consequence would not have occurred. It must have been necessary for the result to happen. If it would have happened anyway, factual causation cannot be established in Canadian criminal law. If two people shoot the victim at the same time, one person cannot say that the person would have died anyway. If the victim was shot in the head and in the stomach and the stomach wound would have killed him later, the guy who shot the victim in…  Legal Causation: Even with factual causation, it could be argued that the link is not close enough, we are not willing to impute the result to the actions of the accused. Most cases deal with that question. There is a concern that the link is too weak, too remote, that someone else is more responsible for the consequence than the accused.

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 S. 222(5)(c) & (d): creates an offence/sets the parameters for the homicide offences (culpable

homicide). It expands the notion of the criminal act. Murder (specific intention), Infanticide (mother killing newborn child), all else is manslaughter. (4 types of causation)  S. 224-227: number of other situations where they will not listen to a causation argument. They do not create offences. They create rules that you apply to other offences to deal with specific causation issues.  Chain of causation: still can use the “but for” test.  Remember that more than one person can be held responsible for a death… o Causation is the factor that requires consequence (homicide requires death, arson requires fire etc…) o The issue with causation is to establish a link between the wrongful act and the consequence o The consequence is important because it is easier to be sure about the harm  Evidence of how harmful the behaviour is  Societies way of handing out justice o If the consequences are identified, it distinguishes between some consequence vs. no consequence e.g. manslaughter vs. homicide o The problem is that consequences are variable – there is no consistency between a particular action and a particular consequence o This doesn’t matter – once you take the risk of some harm, you are responsible for all possible harms Test for Causation:  Whether the conduct caused the result  Causal connection in fact to the result  “but for” test o In the Criminal Code, there is no definition of causation o There are some specific homicide provisions  s. 222: Non-culpable homicide  If there is no criminal act, but you still have causation, there is no offence  The difference between manslaughter and murder is intent, not causation  s. 224: If the person dies only because something simple wasn’t done to avoid the death, the person that caused the death is still culpable  s. 225: Even if the treatment was incorrect, as long as it was applied in good faith, the accused is liable  s. 226 – Euthanasia – accelerating death that is already imminent Voluntariness  Do not convict accused unless the actus reas is voluntary (this is essentially a moral question). Why do we need voluntariness to achieve a moral balance?  Two Principles 1) "No fault" (once called strict liability) 2) "Absolute liability"  Do not care why. Question is going to your guilt or innocence.  Actus reus centred principle-did the prohibited situation occur?  Sometimes unfair e.g. Speeding and you do not know speed limit/the speedometer isn’t working.  Historically the only way to deal with this is to say act was involuntary. SCC-Sault Ste Marie: these offences should have a fault standard.  Acquittal if can prove on a balance of probabilities that took reasonable care.  Doubts go against accused (no benefit of doubt) (burden on the accused).  In the past the Crown had to prove voluntariness (accused got benefit of the doubt)  Kilbride uses this. 42

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Principle—No act can be a criminal offence unless it is done voluntarily. Consciousness is a Sine Qua Non (indispensable condition or necessity) to criminal liability (Absence of volition is always a defence to a crime) Rabey v. R 1980, SCC Refers to the act and not the mental element. Applies no matter what the fault element is. “There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision.” *King+. This approach builds a minimal mental element into the actus reus and suggests that an Accu who acts involuntarily may not have committed the actus reus of the offence. - The term mens rea does not encompass all mental elements of a crime; actus reus has its own mental component (voluntary act) [Theroux]

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Tests
Procedural Classification of Offences 1. Identify the crime per a. the Criminal Code section, and b. the charge as drafted in the information provided by the Crown (the disclosure). 2. Identify the procedural type of offence. Is the offence a. summary, b. hybrid (allowing for Crown election), or c. indictable. 3. Determine the jurisdiction of the offence. That is, is it a. Absolute, per s. 553 of the Criminal Code, or b. Exclusive, per ss. 468 and 469? 4. Determine the mode of trial. If the offence is a. subject to absolute jurisdiction it will proceed in Provincial court only; b. subject to exclusive jurisdiction it will proceed in Queen’s Bench court only; c. subject to the election of the accused it may proceed to trial by i. Provincial Court judge, ii. Queen’s Bench judge without a jury, or iii. Queen’s Bench judge with a jury. 5. Determine the forum for appeal. If you are appealing from a. a summary conviction, appeal will proceed by Queen’s Bench; b. an indictable conviction, appeal will proceed from the Court of Appeal.

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Charts
Case Index
Case Name Summary Harms Test and Introduction R. v. Heffer, Arrested for vagrancy while sitting (1970) Man. and smoking. C.A. R. v. Malmo- Accused challenges constitutionality Levine, of marijuana laws. (2003) SCC R v. Labaye; Labaye kept a common bawdy house Kouri, for people to have consensual group (2005) SCC sex, and Kouri kept a bar restricted for couples to have sex on a dance floor. Ratio / Import Each element of an offence must be present in order to convict. The harm principle is not a constitutional standard for what actions may or may not be subject to criminal law. Opposite of Malmo-Levine, a crime is an action “*t+hat by its nature . . . causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or predisposing others to anti-social behavior; or physically or psychologically harming persons involved in the conduct,” and where “the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.” There was no harm found, therefore no crime. This was the first time such profane actions were punished and the first criminal offence determined by a common law court. Effectively, the court made the law and created the offence. The court here clearly stated that new offences cannot be created by the common law; the only source is now legislation. This overrules Sedley. “No one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the CC, or can be established by the authority of some reported case as an offence known to the law.” The court states that the idea of a strict distinction between the Ratio (binding portion) and Obiter (which can be ignored) is an oversimplification of how the common law develops. There are, instead, degrees of 45

Common Law Offences R v. Sedley, Lord Sedley, while naked, threw (1663) C.K.B. bottles of urine at the public in Hyde Park.

Frey v. Fedoruk, (1950) SCC

A peeping tom was detained by the plaintiff for peering into the plaintiff’s house and watching his mother get ready for bed.

Doctrine of Precedent R v. Henry, Identifies and defines the difference (2005) SCC between the Ratio Decidendi and the Obiter Dicta of a case.

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‘bindingness’ where “different obiter can have differing weight – weight decreases as you move from binding ratio to those statements intended to be helpful or persuasive but not binding.” The binding precedent is intended to provide certainty, not to stifle the creativity of the court (Henry at Para 57).

Structure of the Criminal Justice System R. v. R.D.S., The trial judge acquitted the accused (1997) SCC saying that the arresting officer probably over-reacted because the accused was black. The decision was appealed on a reasonable apprehension of bias. R. v. Spence, (2005) SCC In this case it is argued that jurors who are East Indian may be presumed to feel a natural sympathy for a victim of the same race, thereby undermining the fair trial for the accused. Two black women were charged with trafficking drugs and the trial judge found that race, gender and poverty were linked to the commission of the offence, describing the accused as vulnerable targets. Judge presented 700 pages of evidence.

The test for a reasonable apprehension of bias is, “would a reasonable person looking at all of the facts of this case believe that the court was using over-generalizations in drawing its conclusion?” A judge should be an impartial observer. Introduced the concept of a “positive” bias, in the case of juries, of racial sympathy. Is it appropriate for a trial judge to distinguish which factors will ensure a fair trial? 4 problems. (1), the trial judge put the appearance of impartiality at risk; (2), none of the empirical evidence produced by the judge was subjected to analysis or inspection by expert witnesses; (3), it was an error that he did not announce his bias and remove himself; (4), the judge brought in most of the evidence. An extreme example of the abuse of the neutral role of the judge. Confirmed the use of Driedger’s Modern Approach: statutes should be read in their “entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” 2 points to focus upon: (1) the meaning of text depends upon its context, and (2) a valid statute is comprised of a coherent and internally consistent set of rules. Court admits that the strict construction doctrine has been overly influential and that courts have not given sufficient consideration to various Interpretation Act provisions which require statutes to be read remedially. The result “has been an affront to our Legislatures and has probably frustrated many a legislative intent.” 46

R. v. Hamilton, (2004) Ont. C.A.

Statutory Interpretation R. v Clark, Clark was masturbating in the (2005) SCC illuminated living room of his home in front of an uncovered window. The neighbors caught site, hid their children and then dashed to their bedroom to get a better view and some video footage.

Re Xerox of Canada Ltd. and Regional Assessment Commissioner Region No. 10, (1980) Ont. C.A.

Crime CANs
R. v. Goulis, (1981) Ont. C.A.

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The court finds that it is only if an ambiguity exists after the full context of statute has been considered, where it is uncertain in which sense Parliament used the word, that the strict construction rule should apply. This principle does not always require a word that has two accepted meanings to be given the more restrictive meaning: where a word used in a statute has two accepted meanings, then either or both meanings may apply. The accused sexually assaulted a 7- At the time, the offence that the accused year old boy and then strangled him was charged with (first degree murder) to death. required that the murder occur “while committing” the indecent assault. The court found that a strict interpretation must be reasonable given the scheme and purpose of the legislation and do not feel that the use of the strict construction doctrine is appropriate in this case. This is so because of the difficulty in determining the beginning and end of an indecent assault, which would give rise to arbitrary and irrational distinctions. The court, for instance, finds that an accused who commits murder two minutes after an indecent assault should not be awarded a lighter punishment. As a result, the court makes a ‘broad interpretation’ to meet the purpose of the Act. Otherwise, it is found, the policy of punishing heinous crimes would be undermined. The accused was charged with In cases where the CC defines an offence in forging credit cards under s. 369 of ambiguous terms, or makes it unclear the CC. whether Parliament has chosen to prohibit certain conduct by making it criminal, this undermines the requirement of notice (that is, the public should know in advance what will be criminalized). The Canadian judicial system’s commitment to individual liberty means that any doubt should be resolved to maintain individual liberty and therefore read in favor of the accused. This doesn’t mean that the most restrictive possible meaning is always preferred as this rule only applies where there’s remains true ambiguity after a full contextual analysis of the statute. A drunk driver crashes his truck into a The court enunciates Driedger’s modern tree in Lethbridge and then fails to principle, and his 5 steps of statutory help his buddies or give them his interpretation. These steps are: contact information because he has (1) The Act as a whole is to be read in it’s four broken ribs, some lacerations, entire context so as to ascertain the concussion, shock and crash induced intention of Parliament . . . , the object of amnesia – obviously he’s charged the Act . . . , and the scheme of the Act. with a breach of s. 252(1) of the CC. (2) The words of the . . . are then to be read 47

R. v. Paré, (1987) SCC

R. v. Mac, (2001) SCC

R. v. McColl, (2008) AB. C.A.

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in their grammatical and ordinary sense in light of the intention of Parliament embodied in the Act . . . . (3) If the words are . . . ambiguous, then a meaning that best accords with the intention of Parliament . . . , but one that the words are reasonably capable of bearing, is to be given them. (4) If . . . there is disharmony within the statute, statutes in pari materia1, or the general law, then an unordinary meaning that will produce harmony is to be given the words, if they are reasonably capable of bearing that meaning. (5) If obscurity, ambiguity or disharmony cannot be resolved objectively . . . then a meaning that appears to be the most reasonable may be selected.

The Criminal Act (Actus Reus) R. v. Thorne, An inmate involved in a prison riot (2004) NB did not cease to riot or depart when C.A. read the proclamation to disperse and so was charged under s. 68 of the CC. R. v. Lohnes, Lohnes appealed from a conviction (1992) SCC for causing disturbance for shouting and swearing at his neighbor, who was the only witness.

It is absolutely essential for the Crown to prove all the elements of the offence in order for the accused to be found guilty.

R. v. Burt, (1985) Sask. Q.B.

The owner of a noisy truck

Marshall v. R., (1969) Alta. C.A.

16-year old kid on way back from Vancouver with three others charged with joint possession of pot.

For conduct to rise to the level of a “disturbance” as contemplated by the Criminal Code it must be an externally manifested disruption of the public peace that interferes with the ordinary and customary use of a premises by the public such that a person of reasonable fortitude would act or be forced to alter their action in response. As Burt, the owner of the offending vehicle, played no part in the violation of the Act, the punishment sought by the Crown and sanctioned by the Saskatchewan legislation was found by the court to be contrary to the principles of fundamental justice. If the charge were carried an owner could be convicted in the absence of both mens rea and actus reus. This absence of actus reus, the court determined, renders the legislation invalid and of no force or effect. Vicarious liability is invalid in criminal law. Marshall’s “passive acquiescence *did+ not qualify as possession.” The court found, too, that there had to be an “element of control” in order for there to be “possession.” There

1

“Materially similar.” This is a standard presumption of law, that like statutes may be compared in order to glean the common intention.

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must be the presence of knowledge, consent and control in order for a person to have possession under s. 4(3)(b). As Marshall neither consented to the presence of the marijuana in the vehicle, nor had any control over the situation there was found to be insufficient proof to carry the charge. Ritchie J. summed up the ratio of this case by quoting O’Halloran J.A. in R. v. Colvin and Gladue, (1942) B.C. C.A., who said that “knowledge and consent cannot exist without the co-existence of some measure of control over the subject-matter” and went on himself to say that “a constituent and essential element of possession under s. 3(4)(b) is a measure of control on the part of the person deemed to be in possession.” The law is now clearly settled that “consent” requires a measure of control over the situation, per Marshall, or subject matter, per Terrence. This case forces an examination of some of the implications of this reading in of control to the statute, particularly in that the courts now seem willing to extend the test beyond "direct" control (as in the pipe, or car earlier) to "indirect" control (as in a presumed control of one’s living space, despite the absence of evidence of control of any individual thing in that space). In this case, the accused was not present in the apartment when the search took place. As a result there was no evidence of actual possession. Strong circumstantial evidence, however, gave the court the ability to infer knowledge, consent and control and, therefore, the commission of an offence of possession. The majority differentiated between 2 separate acts: (1) the misrepresentation of Bird’s identity in order that Mrs. Osborne would allow him to observe the procedure (the “peeping tom” act), and (2) the procedure as performed by Dr. Bolduc, to which consent had already been obtained via the previous procedures and Mrs. Osborne’s keeping of her appointment with Dr. Bolduc (the “examination” act). Court found that Bird’s fraud did not go “to the nature and quality of the act” & his 49

R. v. Terrence, (1983) SCC

Accused went for a ride in his friend’s “brother-in law’s new car.”

Re Chambers and the Queen, (1985) Ont. C.A.

Bolivian marching powder found in accused’s closet; is there enough evidence of control to send her to trial?

R. v. Pham, (2005) Ont. C.A.

Accused and another jointly charged with possession of crack-cocaine.

Consent Bolduc and Bird v. R., (1967) SCC

A doctor allows his jazz musician buddy to watch a private medical procedure.

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conviction was overturned. Dr. Bolduc did exactly what Mrs. Osborne understood he would do & intended that he should do; there was no fraud on his part as to what he was supposed to do & what he actually did. Per Cory J., the accused’s conduct must be dishonestly deceptive and (1) go to the nature and quality of the act, (2) expose the complainant to significant risk of bodily harm, or (3) go to the identity of the accused. 2 Strong dissents: (a) only consent obtained without negating the voluntarily agency of the person being touched is legally valid, and (b) the common law doctrine must be reinvigorated so that only fraud that goes to the nature and quality of the act will vitiate consent. Sexual assault is an assault within any one of the definitions of that concept in s. 265(1) of the CC and is committed in circumstances of a “sexual nature,” such that the sexual integrity of the victim is violated. The impugned conduct is deemed to have the requisite “sexual nature” when “viewed in the light of all the circumstances . . . the sexual or carnal context of the assault [is] visible to a reasonable observer.” The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. There are 3 methods by which consent may be vitiated: (1) If the accused exceeded the scope of the consent granted by the complainant (also referred to as “vitiated by factual determination”); (2) If there are significant public policy reasons why the consent should be vitiated; (3) If consent is vitiated by statute. No one can consent to death or bodily harm. The Supreme Court uses several policy considerations to find in this case.

R. v. Cuerrier, (1998) SCC

Accused was aware he was HIV positive and yet had unprotected sex with 2 women.

R. v. Chase, (1987) SCC

This case provides a useful definition for sexual assault (s. 271) not present in the CC.

R. v. Jobidon, (1991) SCC

Jobidon’s first punch knocked Haggard out. Jobidon then struck Haggard 4 to 6 more times on the head, which resulted in Haggard’s death. Jobidon was charged with manslaughter.

Procedure
Attributes Nature offence sentences Indictable of More serious. Includes and “exclusive” and “electable” jurisdiction offences. Hybrid These offences allow for “Crown Election” where the Crown decides whether to Summary Conviction Less serious. Includes “absolute” jurisdiction offences.

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proceed by trying the offence as an indictable or summary charge. Once the election is made, it cannot go back. CC Provision ss. 553 & 536 ss. 536 s. 469 Arrest Can arrest if there’s probable cause Can arrest only if officer actually sees (this gives police broader discretion). the offence being committed. Can fingerprint and photograph. Cannot fingerprint or photograph. Limitation No limitation period unless specified Must be tried no later than 6 months Period in the code. after the charge is laid. Court Procedure Can go to Queens Bench or Provincial Always proceeds through Provincial Court as the more serious process has Court. more options. Designed to go through process quickly. In the majority of cases, an accused can elect which court to proceed in. Most people go to Provincial Court to plead guilty; they’ll go to Queen’s Bench if they want a preliminary inquiry or if there’s a good reason (important cases are better dealt with in Queen’s Bench). Examples Murder, Assault, Assault causing Common property offences (theft, fraud, bodily harm, Robbery. etc.) under $5000. Sentencing Defaults to, where no other Defaults to, per s.786(2), $200 and 6 punishment is provided in the code, a months imprisonment as a maximum 5-year maximum sentence. sentence.

Evidence
Direct Evidence Eyewitness testimony or forensic evidence that, by itself, proves the offence was committed by the accused. Indirect Evidence Circumstantial evidence that is relevant but doesn’t prove anything one way or another (that is, it requires an inference).

Criminal Code Common Provision Index
CODE # CODE CASE CB PAGE

4(3)(b) 4(3)(b) 4(3)(b) 8(3) 9

9 14 21 164(1)(a) 173(1)(a)

Definition of Possession Definition of Possession Definition of Possession Common law defences continue No conviction of common law offences (didn’t apply this section directly as case preceded 1955 CC amendment) No conviction of common law offences Cannot consent to death Parties to an offence (aiding & abetting) Vagrancy (since repealed) Indecent act – exposed her breasts

Marshall v. R. R. v. Terrence Chambers v. R. R. v. Jobidon Frey v Fedoruk

205 209 212 219 3

R. v. Jobidon R. v. Jobidon Bolduc and Bird v R R. v. Heffer R. v. Jacob

219 219 236 17 7 51

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175 177 180 197 213 (form 195.1) 213 217 217 219, 220 222(5) 222(5) 231(5) 231(5) 249 264 265(1)(a) 265(1) 265(3) 265(3) 268 321 322 348 348 350(b) 21 265(1) 265(3) 4(3)(b) 249 9 Public disturbance Trespassing at Night {not actually used in case of ‘peeping tom’} Common nuisance Definition of ‘public place’ – cop car not included Offence in relation to prostitution Offence in relation to prostitution Duty of persons undertaking acts Duty of persons undertaking acts Criminal negligence causing death Homicide Homicide Murder while sexually assaulting Murder while sexually assaulting Dangerous operation of vehicle Criminal Harassment {not actually used in case of ‘peeping tom’} Definition of assault Definition of assault Consent to assault Consent to assault Aggravated Assault Definition of “break” Counselling theft Break and Enter Break and Enter Break and enter Parties to an offence (aiding & abetting) Definition of assault Consent to assault Definition of Possession Dangerous operation of vehicle No conviction of common law offences (didn’t apply this section directly as case preceded 1955 CC amendment) Trespassing at Night {not actually used in case of ‘peeping tom’} Criminal Harassment {not actually used in case of ‘peeping tom’} Murder while sexually assaulting Definition of ‘public place’ – cop car not included Offence in relation to prostitution Definition of “break” Break and enter R. v. Lohnes Frey v. Fedoruk R. v. Thornton Hutt v. R. Hutt v. R. Prostitution Ref R. v. Browne People v. Beardsley R. v. Browne Smithers R. v. Michael R. v. Pare Harbottle F.D.L. Frey v. Fedoruk R. v. Jobidon Bolduc and Bird v R Bolduc and Bird v R R. v. Cuerrier R. v. Cuerrier Johnson v R R. v. Stewart Lemieux v R. R. v. Chandler Johnson v R Bolduc and Bird v R Bolduc and Bird v R Bolduc and Bird v R Chambers v. R. F.D.L. Frey v Fedoruk

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253 3 282 187 187 196 286 288 286 310 308 53 324 320 3 219 236 236 241 241 248 246 247 248 236 236 236 212 320 3

177 264 231(5) 197 213 (form 195.1) 321 350(b)

Frey v. Fedoruk Frey v. Fedoruk Harbottle Hutt v. R. Hutt v. R. Johnson v R Johnson v R

3 3 324 187 187 248 248 52

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348 4(3)(b) 217 213 217 219, 220 348 265(3) 268 164(1)(a) 173(1)(a) 8(3) 9 14 265(1)(a) 175 222(5) 231(5) 322 4(3)(b) 180 222(5) Break and Enter Definition of Possession Duty of persons undertaking acts Offence in relation to prostitution Duty of persons undertaking acts Criminal negligence causing death Break and Enter Consent to assault Aggravated Assault Vagrancy (since repealed) Indecent act – exposed her breasts Common law defences continue No conviction of common law offences Cannot consent to death Definition of assault Public disturbance Homicide Murder while sexually assaulting Counselling theft Definition of Possession Common nuisance Homicide Lemieux v R. Marshall v. R. People v. Beardsley Prostitution Ref R. v. Browne R. v. Browne R. v. Chandler R. v. Cuerrier R. v. Cuerrier R. v. Heffer R. v. Jacob R. v. Jobidon R. v. Jobidon R. v. Jobidon R. v. Jobidon R. v. Lohnes R. v. Michael R. v. Pare R. v. Stewart R. v. Terrence R. v. Thornton Smithers

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246 205 288 196 286 286 247 241 241 17 7 219 219 219 219 253 308 53 209 282 310

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Case Briefs
R v Heffer (1970 (Man CA)
Facts: Heffer, a 24 year old longshoreman, just moved from Vancouver to Winnepeg with little money. Went to the unemployment insurance office and then received free lodging from a church. He was arrested in the street – no questions posed – and taken into custody and charged with vagrancy. Heffer pleaded not guilty to the charge of vagrancy. Convicted at trial. Heffer is questioning the validity of conviction. Issue: Was Heffer guilty of vagrancy? Need 3 elements to prove vagrancy: i) not having any apparent means of support ii) found wandering abroad or trespassing iii) does not, when required, justify his presence in the place where he is found At what point must the accused be afforded the opportunity to justify his presence (and thereby address all three elements)? Holding: Appeal was allowed and conviction was quashed. Reasoning: Heffer can’t be the intent of s. 164(1)(a) to stigmatize as criminals every young person who travels across the country without employment and with little money in his pocket. It’s not a crime to wander about (it only becomes unlawful when combined with condition (I) and with (iii) failure to justify his presence. Ratio: When one of the necessary elements that constitutes an offence is “failure to justify and/or account for one or more of the other necessary elements” the opportunity to justify must be given at the time of arrest. Note: Dickson, J: judicial activism is okay. The historical context is different. He views the social policy that underlines this policy, history is not applied if the context is different; the history is rejected. Used historical argument to persuade that times are different, the law shouldn’t apply to this new situation (for policy reasons)

R v Malmo-Levine (2003 SCC)
CHARGED: Trafficking marijuana. FACTS: Tried to have trafficking charge overturned by Charter challenge. S. 7: Everyone has 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. ISSUE: Whether the harm principle is a principle of fundamental justice. HOLDING: No, the harm principle is a public policy and not a legal principle. REASONING: The harm principle is an important concept, helpful to interpret legislation, but you cannot use it to rule out a piece of legislation as unconstitutional. Harm Principle: It must do substantial damage to society. Harm to self is not covered in narrow concept of harm; open to too much discretion. RATIO: The harm principle is not the only justification for criminal prohibitions. The harm principle is the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm from others. Mill’s Theory: The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, physical or moral, is not a sufficient warrant. • Argue by analogy • Use precedent •

R v Labaye; Kouri (2005 SCC)
CHARGE: S. 210 (1): Keeping a common bawdy-house for the practice of acts of indecency.

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FACTS: Labaye operated a club for people to meet for group sex. Members only and were interviewed. There was a doorman, locked doors, “private” sign. Kouri: operated a licensed bar. At door, couples were asked if they were a “liberated couple” If yes, then allowed in. Every ½ hour a curtain closed around dance floor and people would engage in group sex. ISSUE: Whether their conduct was indecent. HOLDING: No, they are not guilty. REASONING: Their conduct does not meet the test. RATIO: Purpose of the criminal law is not to criminalize behaviour we don’t like, but to criminalize behaviour that may harm our society. DISSENT: When determining what is harmful to our society, we consider what Canadians cannot tolerate for other Canadians, not what Canadians think is right for themselves. No harm committed that interfered with society’s liberty, no anti-social behaviour, and no physical harm  No harm committed that interfered with society’s liberty, no anti-social behaviour, and no physical harm Two - Part Test for Indecency – Butler  Conduct causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally enforced through the Constitution or similarly fundamental laws by, for example  confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or predisposing others to anti-social behaviour; or physically or psychologically harming persons involved in the conduct, and  That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.

R v Sedley (1663)
Facts: Sir Charles Sedley was indicted at common law for several misdemeanors against the King’s peace. He showed his naked body in public, to many people, spoke indecent words and threw bottles (“pissed in”) among the crowd. Charge not specified beyond “disturbing the King’s peace” Holding: He was indicted, fined only 2000 marks and imprisoned a week without bail and to be of good behaviour for 3 yrs (b/c he was gentleman of an ancient family in Kent). (Fine, prison and probation) Ratio: First time such profane actions were punished - judge could make the law – a common law court. Note: Since 1955 no person should be convicted of a crime in the common law (judges can’t make up new crimes) Court of Star Chamber – misdemeanors only b/c no jury. Developed creative punishments. Accused didn’t know the charge until he appeared before the court – had to answer to the charge with no warning. Today, the accused must have knowledge of the charge before he can answer to the charge. Abolished in 1641, CQB took over – a common law court.

Frey v Fedoruk (1950 SCC)
*Actually a tort case, he claimed there was no crime he could be charged with, therefore false. Did they have the authority to make this an offence? Facts: Frey was on Fedoruck’s property looking into a window where Fedoruck’s mother was preparing for bed. Fedoruck caught him and a policeman arrested him without a warrant. Frey sued for damages for malicious prosecution and false imprisonment. Suit was dismissed by trial judge and affirmed by majority in the B.C. CA on the ground that Frey had been guilty of a criminal offence at common law and therefore there was legal justification for arrest without a warrant. Issue: Was there false imprisonment? YES

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Reasoning: “Peeping Tom” was not an offence known to the law and hence there was no justification in law for Fedoruck and the policeman to have imprisoned Frey; as there was no such offence in the Criminal Code or well-established in Common Law. Ratio: Criminal offences are to be found in the Criminal Code (or well-established common law); “peeping tom” is not such an offence. The conduct of a peeping tom is not prohibited by any section in the Code and is not a criminal offence at common law. Stated that courts no longer have the common law power (jurisdiction) to create an offence Note: “Peeping Tom” provisions in CC ss.177 and 264

R v Henry (2005 SCC)
Do all obiter have the same weight? Binnie says no. Some obiter is just for commentary, while some is designed to guide future judgments. Courts, the SCC in particular, may speak in obiter in order to guide future litigation regarding a particular issue Talks about using precedence in criminal law cases Obiter- is not binding but does have weight and should be considered Ratio- ratio of cases is binding especially with the SCC. -cases should not be treated like the code. Reasoning should be followed but sometimes it is missing ideas or circumstances have changed. SCC has become more of a court that handles matters of public importance than a court which deals with simply last resort appeals. BINNIE, J.  doctrine of precedent Discussion of the obiter dicta and ratio decidendi of the Supreme Court. The Sellars principle suggests that all obiter of the S.C.C. is binding on the lower courts. Binnie suggests this is not the case. That, for example in R. v. Oakes the Oakes test, although not part of the ratio decidendi is still a central and binding aspect of that case.

R v RDS (1997 SCC)
FACTS: Black 15 year old charged with a series of offences arising out of an incident wherein a white police officer had arrested the accused for interfering with the arrest of another youth. Their accounts differed widely. Trial judge acquitted the accused, basing the decision on the police overreacting. Judge Sparks, the trial judge, was the first black judge appointed in Nova Scotia. Decision upheld at the Court of Appeal. ISSUE: Whether Judge Sparks imply brining her “different perspective on life” or acting improperly. HOLDING: She was acting properly. REASONING:  Cory & Iacobucci: Concern re: apparent bias; approve of rebuttal that police evidence should be automatically accepted; Crown didn’t satisfy onus to provide cogent evidence.  Major, Sopinka & Lamer: Was there “evidence before the court upon which to base a finding that this particular police officer’s actions were motivated by racism.” Life experience is important but “it is of no value, however, in reaching conclusions for which there is no evidence.” Agree with Cory.  L’Heureaux-Dube & McLachlin: “While judges can never be neutral in the sense of purely objective, they can and must strive for impartiality.” Stripping judges of their life experiences removes one of the best things going for the judiciary: experiences garnered during their legal careers and their lives.  Gonthier & LaForest: Agree with the general treatment of the case by others but agree with reasons of LHD & McLachlin in terms of their treatment of the Judge’s bias and impartiality considering the context. RATIO: 56

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 The Trial Judge must be and seen to be impartial  Introduction to reasonable apprehension of bias TEST: Is the person acting reasonably? Is the apprehension of bias reasonable?

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R v Hamilton (2004 Ont CA)
FACTS: Accused Hamilton and Mason (Jamaican Women) were charged with smuggling cocaine; trail judge sentenced both Δ to conditional sentences; Crown appealed the sentences; Appeal court dismissed the sentence appeal, but gave very strong reasons regarding their view that the trial judge had acted inappropriately. ISSUE: Did the trial judge err by considering the social context. HOLDING: Yes. REASONING: Trial Judge brought in additional evidence, threatening the semblance of impartiality that a judge must maintain. Appeal court identified 4 problems created by the way the proceedings were conducted. 1. The judge, by taking on the role of advocate, witness and judge, undermined the appearance of impartiality. 2. The judge’s approach created a disconnect between the actual Δ and the a case of the paradigmatic cocaine courier. 3. The judge’s conduct created a risk of inaccurate fact-finding by introducing a series of statistics that were likely taken as reliable because the judge was the one who brought them up. 4. The judge appeared to make judgements that were inappropriate based on judicial notice with little support from the facts. RATIO:  Judge should not descend into the fray  Judges can ask questions and clarify things; they are not totally passive  They can cross the line, as the judge did in this case  A judge may not make sentencing decisions based entirely on personal judicial experiences or perceptions. Judgments must be based on evidence, though this evidence may be viewed “through the lens of personal judicial experience and social context.”

R v Effert (2011 Alta CA) R v Kubassek (2004) (Ont CA)
FACTS: Δ disturbed Mass at a church that allowed same-sex marriages. She made proclamations against same-sex marriage. Rev asked Δ to leave and Δ pushed Rev, who tripped but did not fall and was not injured. ISSUE: Is the principle of de minimis available in this case? HOLDING: No, de minimis argument not allowed in this case. REASONING: Found that Δ’s actions were not trifling. If the actions were continued to be practiced, they would be a big deal for the public interest, so they can not fall under the principle of de minimis. It was an assault and should be charged, regardless of actual injury by Rev. RATIO:  De minimis non curat lex – the law doesn’t concern itself with trifles  Role in judges of criminal trials when one party raises the de minimus  Introduction to de minimus  not clear whether or not it is a Canadian Principle

Woolmington v DPP (1935 HL)
FACTS: Δ said took out gun to scare wife (they were separated). The gun went off accidentally, bullet hit wife and wife died. ISSUE: Whether the trial judge erred in assuming that person accused of murder is guilty until proven innocent through evidence. HOLDING: Yes, trial judge was wrong! REASONING: It does not make sense that the onus should be on the prisoner: if the judge deems that the Crown proves it case, and then the onus shifts to the prisoner to prove otherwise, it is 57

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essentially the judge who decides the case by implying that the Crown has supplied sufficient evidence. Further, the court says that the accused “is entitled to the benefit of the doubt.” RATIO:  1935 House of Lords Golden Thread: Crown has the burden of proof beyond a reasonable doubt to prove each essential element. (Presumption of innocent until proven guilty)  Blackstone: Better that ten guilty persons escape than that one innocent suffer.  What does burden of proof mean?

R v Lifchus (1997 SCC)
FACTS: Judge charged the jury on burden of proof explaining that the words “beyond a reasonable doubt” in their ordinary natural every day sense” were how the jury should consider the above expression. ISSUE: Whether that was an appropriate way to charge a jury on the term beyond a reasonable doubt. HOLDING: No, term has a different legal and common meaning. REASONING: Outlined a model charge that could be used as a basis for future charges on this issue. Court also provides summary of what a charge should and should not contain. 1. The jury understands that the legal meaning and common meaning are different. 2. The jury should apply the same standard of proof they would apply to important decisions. 3. They understand that proof “beyond a reasonable doubt” = proof to a moral certainty. 4. They understand that they may convict if they are sure that the accused is guilty. RATIO:  Defines what beyond a reasonable doubt (outlined above)  More than 50%, less than certainty. Somewhere in between but closer to certainty than 50%. What the explanation should include obiter, guidance to lower courts…:  standard of proof beyond a reasonable doubt is intertwined with the presumption of innocence  the burden of proof rests on the prosecution throughout the trial & never shifts to the Δ  a reasonable doubt is not a doubt based upon sympathy or prejudice  a reasonable doubt is based upon reason and common sense  it is logically connected to the absence of evidence or to the evidence  it doesn’t involve proof to an absolute certainty: it is not proof beyond any doubt nor is it a frivolous doubt  more is required than proof that the Δ is probably guilty - a jury which concludes only that the Δ is probably guilty must acquit What the explanation should not include  Describing “reasonable doubt” as an ordinary expression  Asking jurors to apply the same standard of proof that they apply to important decisions in their lives  Equating proof “beyond a reasonable doubt” to proof “to a moral certainty”  Qualifying the word “doubt” with other adjectives other than “reasonable” such as “serious”, “substantial”, or “haunting”  Instructing jurors to convict if they are “sure” that the Δ is guilty

R v Starr (2000 SCC)
FACTS: The Δ was convicted of two counts of first degree murder; the appeal arrived at the SCC based on the instructions of the trail judge; the SCC allowed the appeal. DISCUSSION: The court discusses that the problems in Starr are similar to those in Lifchus; the trial judge’s charge didn’t explain how reasonable doubt is to be defined; the court said “a jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials.” (81); the court explained “an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty 58

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than to proof on a balance of probabilities.” (82); further “it will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards.” (82) RATIO:  Jury has to be told that beyond a reasonable doubt has special legal significance, but judge does not have to quote Lifchus.  Beyond a reasonable doubt is higher than on a balance of probabilities

R v S(JH) (2008 SCC)
FACTS: Father accused of sexually assaulting his daughter. Jury did not believe witness. Judge explained principles of reasonable doubt. ISSUE: Did the trial judge err in charging the jury with instructions regarding how to determine if they had a reasonable doubt by not using the instructions from WD? HOLDING: No, judge instructed the jury correctly. REASONING: The WD approach to explaining the approach is not a magic incantation and that the jurors in this trial “could not have been under any misapprehension as to the correct burden and standard of proof to apply.” RATIO:  Explains relationship between beyond a reasonable doubt and creditability  Just because witness/accused is not believed does not mean that person is guilty; just throws analysis back on the Crown’s case  A judge can believe someone totally, a little bit or not at all  Three things you need to remember when making case decisions: 1. The burden of proof never leaves the Crown. 2. The judge or jury is not to choose between two stories. 3. The judge or jury may believe all, some or none of the witnesses, including the accused.

R v Mullins-Johnson (2007 Ont CA)
FACTS: Uncle accused of murdering niece. Conviction overturned based on flawed scientific opinion – legal innocence. DISCUSSION: The court discusses why there are only “guilty” and “not-guilty” declarations, and no third declaration of “factual innocence”. The court explains that it has no ability to make a formal declaration of factual innocence. To recognize a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt. RATIO:  Wrongful conviction case  Points to difference between factual innocent and Crown not being able to prove case  Policy reasons to not say factual innocent  would create two tiers of “not guilty” verdicts

Re S.83.28 of the CC (2004 SCC)
-The constitutionality of an aspect of anti-terror provisions of the criminal code -The modern principle of statutory interpretation requires that the words of the legislation be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of parliament” -the modern approach recognises the multi faceted nature of interpretation -there is a presumption that legislation is enacted to comply with constitutional norms -where two readings are plausible, the interpretation that accords with he charter should be taken.

R v Clark (2005 SCC)
CHARGE: S. 173(1): offence to wilfully perform an indecent act “in a public place in the presences of one or more person 59

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FACTS: Δ was seen by neighbours masturbating in his living room in his home across the street. The police were called and observed Δ. Could not actually see the activity the Δ was performing. Neighbours used both binoculars and a telescope to get a better view but still weren’t able to see what the Δ was doing. ISSUE: What is the meaning of “public place”? HOLDING: Place where public has physical access. REASONING: Looked at definition of “public place” at the beginning of the section. Defined as: includes any place to which the public have access as of right of by invitation, express or implied. But then does access mean physical or visual (or both). Court looked at S. 174; does not include private places exposed to public view or parliament would have had to write two subsections in S. 174 because it would have been redundant. RATIO: Use Driedger’s modern principle to interpret the meaning of words in a code (LAP). McLean: used dictionary meaning to find the definition of “prowl”. Looked at section definitions, S. 2, the common law and then resorted to the dictionary.

R v Goulis (1981 Ont CA)
-well known rule of statutory construction that if a peal provision is reasonably capable of teo interpretations that interpretation which is more favourable for the accused must be adopted -where a word in a statute has two accepted meanings, then either or both meanings may apply -the court is required to determine which meaning was intended by parliament  Moderate interpretation  Court often applies rule of statutory construction that if penal provision is reasonably capable of two interpretations, that interpretation that is more favorable to the accused must be adopted  Doesn’t mean that word that has two accepted meanings should always be given more restrictive meaning; either or both meanings may apply  Only in cases of ambiguity, when uncertain which sense Parliament used word, when rule requiring interpretation to be more favorable to the defendant is to be adopted  -Tells us that interpretation should favor the accused when there is uncertainty as to interpretation of a penal provision.  -If there are two reasonable interpretations of a penal statute then the one which favors the accused should be used.
 - in Goulis (Martin J.A. giving reasons), the court says that the method generally accepted is that when there are two possible interpretations available to the court, the court should take the interpretation that is more favourable to the Def; the court says this is wrong: the court is required to try to figure out what context Parliament wanted the section (or whatever) to be interpreted in, and if it was still ambiguous after this attempt, then the court would adopt the interpretation that was more favourable to the Def.

R v Paré (1987 SCC)
Facts: Accused 17, indecently assaulted a 7 year old boy under a bridge. Body threatened he would tell mother. Pare threatened to kill him if he did. When he was certain that the boy would nevertheless tell, he held the boy down on his back for two minutes and then killed him through strangulation and hitting him with an oil filter. Charged with 1st degree murder under 231(5) of CCC: "murder is first degree...when the death is caused...while committing an indecent assault" (now sexual assault) Issue: Does the doctrine of strict construction require the court to adopt the interpretation most favourable to the accused? Not always, s. 214(5) uses a single transaction analysis…guilty of 1st degree murder. Reasoning: Wilson J.: Respondent argued strict construction of "while committing" (death and offence occur simultaneously). Is it reasonable given the scheme and purpose of legislation? No 60

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Problems with Strict Construction: 1. Difficulty of determining beginning and end of an indecent assault. 2. Leads to distinctions that are arbitrary and irrational Single transaction analysis: policy considerations are satisfied  Continuing illegal domination of the victim gives continuity to the sequence of events culminating in murder  Underlying principle is: where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime.

R v Mac (2001 Ont CA)
CHARGE: S. 369: Everyone who, without lawful authority or excuse … makes, offers or disposes of or knowingly has in his possession any plate, die, machinery, instrument or other writing or material that is adapted and intended to be used to commit forgery. FACTS: Δ on trial on charges related to the large scale manufacture and sale of forged credit cards. ISSUE: Did the trial judge err in instructing the jury to consider the word “adapted” to mean “suitable for” rather than “altered so as to be suitable for”? HOLDING: Yes, if Parliament’s intentions are unclear, use strict construction rule. REASONING: 1. Fair Notice – where a crime is defined in ambiguous terms, fair notice is only given with respect to the conduct which is captured by each of the meanings which are reasonably available upon a reading of a statute. 2. Where it is unclear whether Parliament has chosen to prohibit conduct by making it criminal, the commitment to individual liberty commands that the doubt be resolved in favour of the Δ. 3. The principle of strict construction applies only where there is true ambiguity as to the meaning of a word in a penal statute after an examination of the context. RATIO: When applying strict construction, the court should consider the meaning of the words being interpreted in their context, and should only apply a strict interpretation where Parliament’s intentions are unclear.

R v Thorne (2004 NB CA)
CHARGED: S. 67: Reading of the riot act. S. 68(b): not dispersing after riot act was read. FACTS: There was a riot at a prison. Δ accused of taking part in a riot at the Renous prison; the warden of the prison read the S. 67 proclamation to disperse the riot; after 30 minutes, the Δ had not dispersed; the Δ was charged under S. 68(b). At trial, the judge instructed the removal of part of the section that dealt with the sentence. ISSUE: Was the Crown able to prove each essential elements of the case? HOLDING: No, the proclamation was not read (according to trial evidence, lacking the imprisonment for life)  not in violation of S. 68(b). S. 67 needs to happen first and that was not proved. REASONING: By removing these words from the witness statements, the statement before the jury was incomplete statement. Since “imprisonment for life” is an essential element of the proclamation, failure to include it means that the S. 67 proclamation wasn’t read (according to the evidence in front of the jury) and therefore it could not have triggered the behaviour sought under s. 68(b). RATIO: Where an offence of the CC is triggered by some other required action outlines under the CC, if all of the fundamental elements of the triggering action are not fulfilled, then the triggering action has not occurred and, therefore, the subsequent action will not occur either. TEAL V. NOBLE S 810.2(1): Peace Bonds. Does this section create an offence?  But what is the actus reus?  No penal consequence  A “true crime” must have penal consequences  fine or imprisonment by which magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large

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Burden of proof would be on a balance of probabilities. Not a crime so not beyond a reasonable doubt.

R v Lohnes (1992 SCC)
CHARGE: S. 175(1): not in dwelling house; causes a disturbance; in or near public place; by fighting, screaming, shouting, swearing, singing or using insulting or obscene language. FACTS: This was embellished by a string of epithets revealing an impressive command of the obscene vernacular. Mr. Porter was disturbed emotionally. ISSUE: When does “shouting, singing etc.” become a criminal offence? What does disturbance include emotional disturbance? HOLDING: More than emotional upset. Conduct must cause an overtly manifested disturbance which interferes with the ordinary and customary use by the public of the place in question. REASONING: Court looked at the history of the legislation and the different between the noun “disturbance” and the verb “disturb”, and the context that if all under the “Disorderly Conduct” section. The French version of the CC was also looked at but did not provide any insight. Policy was considered: fair notice not presence if considering mental condition of potential victims. RATIO: The courts will use a variety of tools to interpret the actus reus in a provision when it is not overtly obvious. One of these tools is context.

R v Burt (1985 Sask QB)
CHARGE: S. 253 of the Vehicles Act: The owner of a motor vehicle is liable for violation of any Provision of this Act in connection with the operation of a motor vehicle, unless he proves to the satisfaction of the provincial magistrate or justice of the peace trying the case that at the time of the offence of the vehicle tractor or trailer was not being operated by him, nor by any other person with his consent, express or implied. FACTS: Burt was the registered owner of the car and he let his friend borrow the car. The friend made excessive noise in its operation. The police were not able to identify the friend, so charged Burt. ISSUE: Whether the absence of actus reus renter the legislation invalid. HOLDING: Section contravened Charter REASONING: As the court points out, “a person could be asleep at home when events transpire which ultimately result in that person’s imprisonment (205).” The court says that not only is there no mens rea, there’s no actus reus either. While there have been exceptional categories of cases where vicarious liability may be found, the provision in question doesn’t comfortably fit into this category. The test applied is the Effects Test; if the statute is found to be valid (which it is), the effects of the legislation may still be found to interfere with the rights and freedoms. If the effects do this, then the provision may be challenged on applicability or validity. This type of charge goes beyond both s.1 and s.7 of the Charter RATIO: When considering an offence that results in punishment even if no mens rea or actus reus need to be proven, the court shall not allow a conviction if it interferes with S. 7 or S. 1 of the Charter.

Marshall v R (1969 Alta CA)
CHARGED: Narcotics & S. 4(3)(b): Joint Possession – consent and knowledge FACTS: Road trip back to Calgary from Vancouver. Marshall was a passenger that just wanted to get back so he could go to class. Some of the other passengers in the car had marijuana in the vehicle and were smoking it. Marshall did not know about the marijuana when the boys left Vancouver, said he didn’t and didn’t exit the vehicle when they were stopped by the police in Golden. ISSUE: Whether the Δ consented to the marijuana being in the custody or possession of the other in the vehicle. HOLDING: No, there was an absence of control 62

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REASONING: Knowledge was not contested. Judge found that he had no control or right to control, nor did he consent to its presence. The fact that the Δ did not leave the vehicle could be chalked up to his age and inexperience. At one point he passed a joint, but that was deemed an involuntary action, almost reflex. RATIO: If a person is found not to have custody/possession of a thing because they had no control or not right to control the thing, they shall not be found guilty of possession.  Consent is an essential element of joint possession  Beaver: manual handling of a thing must co-exist with the knowledge of what the thing is, and those two elements must coexist with the element of control.  Hess: manual handling and knowledge of what it is and act of control outside of public duty

R v Terrence (1983 SCC)
CHARGED: Theft & S. 4(3)(b): Joint Possession – consent and knowledge and FACTS: The Δ was riding with a friend in a stolen car, but Δ did not know it was stolen. ISSUE: Is control an essential element of possession? HODLING: Yes. Consent requires control over the circumstances. Possession requires knowledge and consent, therefore control over the circumstances REASONING: Once he got into the car, it was hard to leave. Jump out of a moving vehicle? The Crown could not prove that he made a conscious decision to get into the car knowing it was stolen. RATIO: No consent  no control  Colvin and Gladue: knowledge and consent can’t exist without the co-existence of some measure of control over the subject matter. If there is the power to consent, there is also the power to refuse and vice-versa. Control is a key element to possession, and Terrence did not have control over the car.

Re Chambers and the Queen (1985 Ont CA)
CHARGED: Cocaine & S. 3(4)(b) – Joint Possession FACTS: Δ’s boyfriend’s cocaine found in her bedroom. Δ was aware of the presence of cocaine. Court quashed committal for trial on grounds that there was no evidence she was in possession or aided and abetted the boyfriend. ISSUE: Because the cocaine was found in her apartment did she have the necessary control to satisfy the possession charge? HOLDING: Yes, she had control to give or withhold consent. REASONING: The accused, in whose room the cocaine was found, was able to give or withhold her consent to the drug's presence in her room. Hence, there was some evidence for committal to trial => either on the basis that she had the necessary measure of control over the cocaine or on the basis that a properly instructed jury could find that she became a party under S.21 of CC by allowing the co-accused to store his cocaine in her room. Court held that possession as defined in S.3(4) (b) of CC which states "where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession of each and all of them." Requires an element of consent. RATIO: Δ had right to grant or withhold consent to the drug being stored in her room, which gave her necessary measure of control required to constituted consent.  Consent is an essential element of constructive possession  Can’t infer possession due to room occupation and if you occupy and control a room it is possession that you consent.  How to establish consent  By circumstantial evidence (evidence in which an inference is required to connect it to a conclusion of fact: Wikipedia)

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R v Morelli (2010 SCC) R v Pham (2005 Ont CA)
CHARGED: S. 5(2) of Controlled Drug and Substances Act for possession (constructive) Cocaine. FACTS: Δ lived with co-accused. Δ rented apartment and lived there for two months before the coaccused moved in. Before the co-accused moved in, the Δ was observed performing drug trafficking activities. On the day before the police raised her apartment, the Δ left and did not return. The coaccused was in the apartment when the police raid occurred. Police found 9.8 grams of crack cocaine in a black purse and $165 in make-up bag in the bathroom ISSUE: Whether the Δ have knowledge and consent of the cocaine found in the bathroom and therefore had it in her possession. HOLDING: Yes, guilty of having cocaine in her possession. REASONING: There was a witness that saw the Δ exchange money for a bag of white power substance. There is a lot of traffic in and out of the apartment. The substance was in plain sight in among her other possession. She lives there. RATIO: If there are several pieces of evidence that, alone, may not establish the actus reus of an accused, but taken together and alongside logical inference may establish the action, then the accused may be convicted of those actions.  Refers to Sparling  Crown can prove essential element by direct evidence or may be inferred from circumstantial evidence. Chambers draws appropriate inferences form evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug.

R v Chalk (2007 Ont CA)
CHARGED: Possession of child pornography. FACTS: The Δ was arrested for possession of child pornography, which was on the hard drive of his computer. The Δ admitted to police that he was aware for several months that there was child pornography on his computer but he denied that he had intentionally downloaded it. He admitted that he had watched it, sometimes alone and sometimes with his girlfriend. After his arrest, he told his girlfriend to erase the pornography. ISSUE: Whether the Δ had the knowledge and control of the substance and if he had it in his possession for innocent purposes. HOLDING: He had the knowledge and control and it wasn’t for an innocent purpose. REASONING: Asking his girlfriend to destroy the pornography was sufficient to show that he had control over it. Innocent possession includes those individuals who are absent with the intention to exercise control beyond that needed to destroy the contraband or otherwise put it permanently beyond one’s control. That application has no application to these facts. RATIO: Where an accused has demonstrated control over a thing but has exercised that control in order to do more than simply destroying the thing or putting it beyond their control, then they cannot be said to have mere ‘innocent possession.’  Christie: manual handling to bring it to police is not possession as s. 4(3) was contemplated.  Authority that supports the proposition that exercising control over contraband with the requisite knowledge, but solely with the intent of destroying the contraband or otherwise permanently removing it from one’s control does not constitutes criminal possession. INNOCENT POSSESSION: a public duty defence where an individuals has the requisite knowledge and control but only for the purpose of destroying or putting outside of their control.

R v Chase (1987 SCC)
 TEST for sexual assault: Taylor 64

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Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer.  Look at the  Part of the body touched  Nature of the contact  Situation in which it occurred  Words and gestures accompanying the act  All other circumstances surrounding the conduct, including threats which may or may not be accompanied by force  Other factors  Intent or purpose of the person committing the act  Motive of the accused is sexual gratification t  THESE FACTORS ARE NOT EXHAUSTIVE Ewanchuk: no implied consent for sexual assault  FACTS: Δ took girl to trailer. He made a series of advances. She said no. He tried again later and she didn’t stop him. She testified that she was too scared to say no. C.A said that she didn’t go in there with “a bonnet and crinolines”. SCC not happy with that comment!!  There is either consent or no consent, no third type – implied consent  The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contests but sexual assault is not one of them  There is no defence of implied consent to sexual assault in Canadian law

R v Cuerrier (1998 SCC)
CHARGED: S. 265(3)(c) – Assault and consent vitiated due to fraud FACTS: The Δ, an HIV+ man, discovered that he was HIV+ after being tested. The public health nurse instructed him to use condoms and inform all prospective partners of his condition. The Δ rejected the advice and had unprotected sex with two women. ISSUES: Whether the failing to disclose the fact that you are HIV+ to a prospective sexual partner constitute fraud as conceived under S. 265(3)(c). HOLDING: Yes, that is fraud and will vitiate consent. REASONING: Cory: Existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Dishonesty creates exposure to a significant risk of serious bodily harm. TEST: 1. Was the accused conduct fraudulent? 2. Dishonesty must result in depravation (risk of harm). L’Heureux-Dube: Any dishonest action that induced another to consent is fraud. Courts should not reach too far into the private lives of individuals. Complainants are being deprived of their right to withhold consent through fraud. (Comment: des not catch de minimis touching). McLachlin: Where the person represents that he or she is disease free, and consent is given on that basis, deception on that matter goes to the vary act of assault. Withholding information (an STD) changes the nature of the sexual act. RATIO:  Fraud vitiates consent; non-disclosure of HIV status was fraudulent  Fraud is not just any misstatement (hey baby, I’m a lawyer). The greater the risk of deprivation (serious harm), the higher the duty of disclosure (cold v. flu v. HIV)

*R v Mabior (2010 Man CA) R v Jobidon (1991 SCC) [Edited]
CHARGED: S. 265 assault (and manslaughter…) FACTS: Parties were at a bar and got into a fight. Owner stopped the fight but eh parties agreed that the fight was not over. They went outside and resumed the fight. The Δ punched the complainant and he flew onto the hood of a nearby vehicle. The TJ found that this punch rendered the 65

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complainant unconscious. The Δ approached the complainant and punched him further 4-6 times on the head. The complainant later died of contusions to the head. Δ did not intent to kill the complainant and did not intend to go beyond the scope of the consent of the fight. ISSUE: Is the absence of consent a material element which must be proven by the Crown in all cases of assault or are there common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. HOLDING: There are common law limitation – contrary to public interest REASONING: Gonthier: Common law rules apply only if they are not inconsistent with the Code or if other Act of Parliament has not altered them. Fist fights are not in the public’s best interest. Most fights would be unlawful regardless of consent. (Problem – legal and actual consent are different; this reasoning does not give fair notice). Minority: Sopinka: Can’t use common law to eliminate an essential element. That is forbidden under S. 8. Should not have to look through books to discover the common law in order to determine if the offence charged is indeed an offence at law. In this case, complainant was unconscious and consent was  withdrawn. RATIO:  The law’s willingness to vitiate consent on policy grounds is significantly limited  Two adults can not consent to intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.  Only minor struggles, or rough but properly conducted sporting events, which may have some positive social value, were combative activities where consent would be an effective bar to a charge of assault. Of course, lawful chastisement and reasonable surgical interference were also activities in which the public interest does not require nullification of consent. JA: Erotic asphyxiation. Is there such a thing as prior consent? Can you give prior consent to a sexual act and then be unconscious while it is being performed? What about prior consent to surgery? This case is currently in front of the SCC.

R v Moquin (2010 Man CA) R v A(J) (2011 SCC) Moore v R (1979 SCC)
CHARGE: S. 58 Motor Vehicle Act: Every person driving or operating a motor vehicle (definition does not include bicycles) who fails to stop when requested by police or fails to state correctly name and address is guilty of an offence. (Very paraphrased) FACTS: The Δ was riding his bicycle in downtown Victoria. He rode his bicycle through an intersection on a red light. A police officer on a motorcycle followed the Δ and ordered him to stop so that he could be issued a ticket. The Δ refused and continued on his bicycle. ISSUE: 1. Whether the Δ is guilty of an offence. 2. Whether the Δ is guilty of obstruction a constable in the performance of his duties. HOLDING: 1. No, Δ was not guilty of S. 58. 2. Δ guilty of S 495 – arrest without warrant by PO. Court found a reciprocal duty to give information since that’s the cop’s duty. REASONING: 1. A bicycle is not a motor vehicle of any kind. There is nothing in the Act that places a duty on a cyclist to identify himself in the circumstances outlines in this case. An omission of the sort that the Δ is accused of will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute. No common law duty was found. 2. The court differentiated between a circumstance where a person is seen acting suspiciously by an officer (omission is acceptable in this circumstance) as opposed to a circumstance where the officer actually sees the person. (Note: dangerous – how can the Δ know if Δ was seen? How would they know if they would be allowed to refuse the inquires of the officer?) 66

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DISSENT: No common law or statutory duty for a cyclist to give name and identification to PO. A person cannot obstruct by refusing to answer a question unless he is under a legal duty to answer. The fact that the PO has a duty to identify a person suspected of, or seen committing a crime, an offence says nothing about whether the person has the duty to identify himself on being asked. Not willing to create new duties. RATIO: Where a PO is under a duty (statutory or common law) to attempt to identify a wrongdoer because they have witnessed the wrongdoer committing a wrong, a wrongdoer’s failure to identify themselves to the PO constitutes an obstruction of the PO in the performance of the PO’s duties.  Dissent: clear distinction between common law duty and statutory duty

Fagan v Metropolitan Police (1968 UK CA)
CHARGE: Assault FACTS: Δ was parking his vehicle. PO didn’t like his park job so he instructed him to adjust. The Δ adjusted and ended up driving his vehicle on to the PO’s foot. “Get off my foot” said the officer. “F*** you. You can wait” said the Δ. ISSUE: Whether omitting to remove the car from the PO’s foot was assault. HOLDING: Yes – continuous act REASONING: Was continuing the act of the car on the foot. Assault starts when officer brings to Δ’s attention that car is on foot. Once the act is complete it cannot thereafter be said to be a threat to inflict unlawful force upon the victim. If the act, as distinct from the results thereof, is a continuing act, there is a continuing threat to inflict unlawful force. RATIO:  Concept of continuing act  Start out doing a non-criminal act, but becomes criminal because of continuing the act  Once aware of the tire on officer’s foot, Fagan did nothing and convicted of assault

R v Miller (1983 HL)
CHARGE: Criminal Damage Act: without lawful excuse Δ damage by fire a house … intending to do damage to such property or recklessly as to whether such property would be damaged. FACTS: Δ: “I woke up to find the mattress on fire. I just got up and went into the next room and went back to sleep…I didn’t have anything to put the fire out so I just left it” ISSUE: Is the actus reus of arson present when Δ accidentally starts a fire either through intention or recklessness and then fails to take steps to extinguish the fire? HOLDING: Yes. Once aware of fire, should have do something. REASONING: It is sufficient to constitute the statutory offence of arson if at any stage in that course of conduct the state of mind of the accused, when he fails to try to prevent or minimize the damage which will result from his initial act, although it lies within his power to do so, is that of being reckless whether property belonging to another would be damaged. RATIO:  An omission may be considered as part of actus reus  Accidentally set fire but when he knew, he did not do anything

R v Thornton (1991 Ont CA) and (1993 SCC)
CHARGE:  S. 180(1): Everyone who commits a common nuisance an thereby endangers the lives, safety or health of the public is guilty of an indictable offence.  S. 180(2): Every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby endangers the lives, safety, health of property or comfort of the public.  S. 216 Duty of persons undertaking acts dangerous to life: Everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that

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may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in doing so. FACTS: The Δ had twice tested HIV+. He donated blood the Red Cross but did not disclose his HIV+ status. The infected blood was discovered during the screening process. ISSUE: Whether a legal duty can arise out of common law. HOLDING: Yes. REASONING: R. v. Coyne (1958) and R. v. Popen (1981) as two examples of cases where a legal duty was found at common law. RATIO: if an omission is found to breach a duty at common law, then the accused will be found guilty of the criminal offence that was breached.  Act being interpreted as omission (don’t stress about this case)  Almost a common law duty? Maybe according to Mitchell due to lack of fair notice  Court relied heavily on Tort law but S. 8 – cannot create common law offences.

R v Browne (1997 Ont CA), lv to appeal refused
CHARGE: S. 217 Duty of persons undertaking acts: Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life. S. 219 Criminal Negligence: Every one is criminally negligent who does/omits to do anything that it is his duty to shows wanton or reckless disregard for the lives or safety of other person. FACTS: The Δ and deceased were partners in drug dealing. The deceased swallowed a bag of cocaine to avoid detection during a strip-search by police. She tired later to vomit the bag up and was unsuccessful. Later the night, Δ found deceased shaking and sweating and said he would take her to the hospital. He called a cab and went with her (25 min). She arrived with no pulse or heartbeat and was pronounced dead shortly after arrival. ISSUE: Whether the Δ undertook to look after the deceased in the event of an overdose as a result of her swallowing a bag of cocaine? HOLDING: No, there was no undertaking within the meaning of S. 217; no finding of legal duty. REASONING: Criminal undertaking is higher than civil standard. For it to be a criminal breach, the undertaking must be shown to have been made clearly and with binding intent. Court found that there was clearly no undertaking that the Δ would care for the deceased from the time she swallowed the drugs. First question to ask: Was there an undertaking? No, there must be something in the nature of a commitment, generally, though not necessarily, upon which reliance can reasonably be said to have been placed. Does not matter that lower courts found that calling a taxi was reckless disregard. Further, no evidence that a 9-1-1 call would have resulted in quicker arrival and her life would have been saved. RATIO:  Duty laid out in statute  An undertaking in the criminal context is a higher standard than in civil tort law.

R v Peterson (2005 Ont CA), lv to appeal refused
CHARGED: S 215 Duty to provide necessities: (!) creates the duty to care for person if that person by reason of mental disorder AND is unable to provide himself with necessaries of life. (2) Creates the punishment for failing to fulfill the duty. FACTS: Father lived in basement suit of son’s house. Living quarters were in disrepair and father could hardly take care of himself. Two incidences: collapse on street, hospital, released and police called to home and found dad had not eaten in a few days and was filthy. Doctor found that he was in early stages of Alzheimer’s and that his living conditions were unfit for him. Son refused to put dad in nursing home. ISSUE: Whether the father was under the charge/care of the son. HOLDING: Yes.

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REASONING: When interpreting “charge”, consider specific situation and relationship of the parties, the relative positions and their ability to appreciate their circumstances – entails a level of trust, element of control and level of dependency on the part of another – whether that person has explicitly assumed responsibility for the other. Son had POA, father was living his son’s home and close family relationship. Father was often locked out of home and neighbours had to take him in. Police gave suggestions regarding assistance for the father. RATIO:  Necessity of life section. Duty is owed to class of persons outline in the section.

R v Michael (1840 CCCR)
CHARGE: S. 21(1) Parties to an offence: Every on is party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.  does not apply to innocent agents FACTS: Boy was few months old and was living somewhere else while mom worked for another family. Mom gave child’s caregiver “medicine” (poison) to give to child. Caregiver’s 5 year old son gave the baby the poison and it killed him. ISSUE: If the Δ had the intention of committing an act but engaged a 3rd party to do the act through some sort of fraud (the 3rd party was unaware of their involvement), can the accused be charged? HOLDING: Yes REASONING: The Δ delivered the laudanum to caregiver with the intention that she should administer it to the child, and thereby produce its death. While the original intention continued, the laudanum was administered by an unconscious agent, the death of the child, under the circumstances, would sustain the charge of murder against the prisoner. The Δ intended for her child to be killed by someone else using the poison; the variation in the chain of causation is irrelevant to the court. RATIO: If the Δ has intention to act, but that act is carried out by an “innocent” agent, the accused will be held liable for the act as if they had committed the act themselves.  If the accused has done that last act he intended to do, and the result occurs notwithstanding timing, then the accused will still be found guilty.

Smithers v R (1978 SCC)
CHARGE:  S. 234 Manslaughter: Culpable homicide that is not murder or infanticide is manslaughter.  Murder – needs foreseeability of consequences  Culpable homicide – causes the death of a human being by an unlawful act (assault?) FACTS: Parking lot fight after hockey game. Δ kicks the deceased in the stomach and victim dies. The factual cause of death was unlikely according to medical evidence. The victim aspirated on his own vomit. ISSUE: Whether the Δ caused, either directly or indirectly, the death of the victim. HOLDING: Yes, guilty of manslaughter REASONING: The death being caused in part due to the malfunctioning epiglottis is irrelevant. There was no question of remoteness or incorrect treatment. The intention of the Δ was to harm the deceased and he did. The death resulted, in part, due to the kick to the stomach. Crown just had to prove that the kick caused the vomiting, not the aspiration. Once evidence had been led concerning the relationship between the kick and the vomiting, leading to aspiration of stomach contests and asphyxia, the contributing condition of a malfunctioning epiglottis would not prevent conviction of manslaughter. In causation, you must take your victim as you find them. RATIO: If the actions of an accused are found to have contributed to the death of a person and the actions are found to be unlawful, then the accused ma be found guilty of culpable homicide. Full causation is not necessary.  The Smithers Test 69

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  

Sufficient causation exists where the actions of the accused are a contributing cause of death beyond/outside the de minimis range. A weak connection will be sufficient. “But for” Test (2-part test)  But for the criminal action of the accused, this criminal action would not have occurred.  The “but for” test is for factual cause  But for the kicking him in the stomach, would victim had died? No  factual causation was the kick  Legal Cause: the accused action must be sufficiently connected with the consequences to impute responsibility to the accused.  This is when you get into intervening causes. The Thin Skull Test:  Take your victim as you find them. Substantial Causation Test (in murder)  Actions of the accused must form an essential, substantial & integral part of the killing Foreseeability is not used to prove intention to cause death of manslaughter. Fact that it is unforeseen does not relieve the defendant. It needs to be an unlawful act.

R v Nette (2001 SCC)
CHARGE: S. 231(5): murder while committing the offence of unlawful confinement. FACTS: Woman was 95 years old and was tied up during a robbery and left on the bed for 24-48 hours. Died of asphyxiation; dentures had come loose in her mouth and clothing wrapped around her head had become tightly wound around her neck. Many factors could have contributed to her death; medical evidence would not determine factual cause of death. ISSUE: Whether the Δ’s action caused the death of the victim. HOLDING: Yes, guilty of second degree murder. REASONING: Must determine whether the person cause the result in both fact and law. Applied Smithers: did the Δ’s action cause the death of the victim beyond de minimus? Yes, but for the action, she would have not been in that position. Then discussion about how to explain de minimis to a jury. RATIO:  Multiple factors caused the victim’s death  Court split 5-4 in interpreting “beyond de minimis as” substantial contributing cause (higher threshold) and not insignificant (lower threshold) when explaining it to a jury.  Harbottle: substantial cause is the test for 1st Degree Murder. Need personal participation + causation.

R v Talbot (2007 Ont CA) and Charter Note
CHARGE: Death FACTS: Fight. Δ punches the victim, arguably in self defence. Victim falls back and fractures his skull. The Δ then kicked him in the head while he was on the ground. He dies. Doctor testified that it was the fractured skull from the fall that killed him. ISSUE: Whether the Δ caused the death of the victim. HOLDING: Not guilty – punch was self defence. Kick could not be proven to be a contributing cause of death. REASONING: Juries should be asked to deal with the legal and factual causation inquiries together. The jury is asked to decide whether the accused actions significantly contributed to the victim’s death. A contributing cause is one that exacerbates an existing fatal condition – that was not found here. Crown could only suggest that the blow from the Δ let to some unquantifiable possibility that was less than a likelihood that the kick exacerbated the internal head injuries. RATIO: Expressed preference for the language of “significant contributing cause” but left open the use of de minimis. 70

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NOTE: Intervening causes – S. 7 Charter includes causation, whereby who innocently causes death should be protected (moral innocence).

R v Smith (1959 UK Ct-Mar App Ct)
CHARGE: Murder FACTS: Fight at military base.  was stabbed twice; one in arm and one in back, which pierced the lung. On way to hospital,  was dropped a few times. The hospital failed to discover the punctured lung. Treatment was incorrect for the injury. If treatment was correct, he would have had a 75% chance of living. Evidence that bleeding in lunch might have heeled itself. ISSUE: Whether the Δ caused death. HOLDING: Guilty of murder in General Court-Martial in Germany. REASONING: Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. Jordan: death was caused by intolerance to medicine and not the stab wound (which were healing). Court ruled there was a break in the causation. The stab wound was no longer the operating cause. Distinguished here because death resulted from the original wound. It does not matter that there was no time for proper examination and in light of subsequent knowledge the treatment was inappropriate. RATIO: From injury to death, causation will flow unless some unusual circumstance intervenes to contribute to the death. Only an alternative cause of injury or death (as opposed to contribution) will break the chain of causation.

R v Blaue (1975 UK CA)
CHARGE: Manslaughter FACTS: Δ attacked  with knife; one wound pierced her lung. At hospital, Dr. found that she needed a transfusion of blood.  explained that she was a Jehovah’s Witness and refused the transfusion (against religion). Dr. said she would likely die and  understood and consented in writing. She died soon after. ISSUE: Whether the Δ is responsible for the death of a victim who refused treatment that would mitigate their injuries on religious grounds. HOLDING: Not an intervening act to break the chain. Guilty of manslaughter. REASONING: Δ must take their victims as they find him. Δ submitted that  refusal to blood transfusion was unreasonable. The court asked unreasonable according to who’s standards? Taking your victim as you find them applies not just to the physical person, but to the mental person was well. He who inflicted in jury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself. Mitigating injury expectation is not appropriate for criminal law. Proximate cause of death was refusing blood transfusion, but was not an intervening cause. The stab wound was still a substantial operating cause. RATIO: Where a victim refuses treatment that would have prevented their injury manifesting into more extensive injury or death, that act will not be considered an intervening act in the causal chain of events. Classic example of moral blameworthy.

The Queen v Bingapore (1974-5 S Aus SC)
CHARGE: Murder FACTS: The  had a head wound. Went to hospital where he was assessed by a Dr. an was kept at the hospital overnight. The Dr. advised that the  likely had a closed head injury and should stay at the hospital. The  and his wife heard this advice but left anyways. A few hours later,  back at hospital in urgent need of care. He was operated on but died the next day from subdural haemorrhage. ISSUE: Whether the victim’s unreasonable conduct contributed to his death or if was the chain of causation broken. HOLDING: No, not a break in causation. Guilty of murder. 71

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REASONING: R. v. Bristow: If at the time of death the original wound is still an operating and substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. The court says that the victim’s actions don’t’ relate to a break in the chain of causation, but relate instead to the loss of possible opportunity of avoiding death from a still operating cause. The assault was still the operating cause. The act of the accused causing the injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because of some third party is negligent. RATIO: If a victim acts in a way that may be have contributed to their own death, that action will not be found to break the chain of causation, as the original injury will still be operating.

R v Maybin (2010 BC CA) R v Lucki (1955 Sask Pol Ct)
Facts: Charged under s.125(9) of the Vehicles Act of Sask for driving on the wrong side of the road. He skidded on the ice, got into accident with oncoming car. Issue: Was the act voluntary? NO, not guilty. Reasoning:  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.  Mens rea is required under this section; hence, he can't be held responsible for an involuntary act. Ratio:  If mens rea is not required can't hold one responsible for involuntary acts.  A person who without blame and involuntariness goes onto the wrong side of the road is cannot be convicted. Class: Crown could not have proved voluntariness here. Note: R. v King  Impaired driving. Drugs from dentist.  No mens rea, no voluntariness: both achieve same result.

R v Wolfe (1975 Ont CA)
Facts: Owner of a hotel (the appellant) prohibited complainant from coming on the premises. Despite that prohibition, he entered the hotel. The appellant ordered him to leave but he refused. The appellant then went to the telephone and while he was calling the police for the purpose of having him removed, the complainant punched the appellant who turned quickly and hit the complainant on the head with the telephone receiver resulting in a serious cut to the forehead. Issue: Was the act voluntary? No Reasoning: To be convicted of assault causing bodily harm you need intent. In this case the action was a reflex action so no intent to harm was present; the act was not voluntary.  It was also a trifling matter/not serious Ratio: Reflexive action does not amount to intent as there is no voluntariness. Note:  Alcohol: Could be acquitted of murder but will be charged with manslaughter.  Mental disorder: Insanity means not being criminally liable by reason of mental disorder. No conviction but will be committed (degree of social control).

R v Swaby (2001 Ont CA)
Facts: A was the driver of a car and J was a passenger. They were followed by the police and at one point the car stopped and J ran out into a backyard. Both parties were arrested and the police found a loaded, unregistered, restricted handgun in the backyard. A was charged with being an occupant in a vehicle knowing there was present an unlicensed, restricted weapon contrary to s.91(3) of the

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Criminal Code. J argued that the gun was A’s and that he gave it to J to dispose of. A argued that the gun was J’s and he only learned of it after the arrest. A was convicted and appealed. Issue: Was the voluntary conduct necessary for criminal liability present? NO, Appeal Allowed. Reasoning: The court recognized that two essential elements were required for the s.91(3) offence: occupancy of the vehicle and knowledge of the weapon. The crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of A. Voluntary conduct was a necessary element of criminal liability, required even if the provision did not expressly state it. The act had to be voluntary for A’s actus reus to exist. The court established that upon the recognition of an illegal weapon while traveling in a moving vehicle, there had to be some period of time afforded to the person who had acquired knowledge to deal with the situation. It could not be said that the coincidence of occupancy and knowledge by the driver amounted to voluntary conduct. IT was the conduct of the driver following the coincidence of occupancy and knowledge that counted, and if the driver acted with appropriate dispatch to get either the gun or himself out of the vehicle, there was no voluntary act for the criminal law to punish. In this case, A had to be given the opportunity to remove himself or the weapon from the vehicle upon gaining knowledge of its presence. If A only required knowledge at the point when J was leaving the vehicle, he would be entitled to acquittal. Appeal was allowed. Notes:  2 components: knowledge and occupancy  If A found out that there was a gun in the car while driving, he had to have some time to deal with the situation, and if he dealt with it in a timely manner, his act would not be deemed to be voluntary  Similar to the Terrence case – the possession and consent case (if there is nothing else left, you can use voluntariness) Class: Your being in the vehicle with the gun, is really an involuntary action if you realize that there is a gun, because you can’t merely jump out of the car and run cause this would risk your own life. Levy says think twice about bringing in psychiatric information because this could be reasoned as insanity in a involuntariness plea. - Don’t confuse argument with immutable verity. - Levy refers to voluntariness as an mutable idea.

R v Ryan (1967 Aus HC)
Facts: Accused 20, finds a novel where the hero robs a store to get money for lottery to help his parents and tries to emulate this hero. He ties up the victims as planned. There is a sudden movement and the gun is accidentally discharged, killing the attendant. Claimed firing of gun was a reflex. Convicted of murder at trial. Issue: Was the pulling of the trigger under these circumstances a reflexive response? No, while the act was spontaneous it was not an involuntary act. Reasoning:  Conduct that caused death was a complex of acts all done by the accused. Discusses meaning of "involuntary"  He has put himself in a situation which he has his finger on the trigger of a loaded rifle pointed at another man.  The consequences are PROBABLE AND FORSEEABLE and in that sense a voluntary act.  An act is not to be called involuntary merely because the mind was impulsive. Ratio: Applicant was conscious of the situation that he had put himself, pressed the trigger as result so not involuntary. Note:  Opposite of Ryan: Judge doesn't want to let this guy off as this is not the sort of behaviour that should be encouraged. 73

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 The Crown likes this case (defense would go with Wolfe).

Fall, 2012

Kilbride v. Lake (1962 NZ SC)
Facts:  The accused parked his car on which was displayed a current warrant of fitness, for a short period on a public street. When the accused returned, the warrant was missing and a traffic offence notice was affixed to the windscreen.  At trial the accused was convicted of the traffic regulations offence of operating a motor vehicle on which there was not displayed a current warrant of fitness. Appeal to S.C. allowed. Issue:  Was the act on the part of the accused a voluntary (intentional) one? No  Was there actus reus? No Reasoning: This statutory offence didn't require mens rea. Prohibition followed by exception. Ratio:  The Court held that to be convicted of an offence an accused must be shown to be responsible for the actus reus of the offence. Here, the actus reus was not in any sense the result of the accused's conduct, whether intentional or accidental. The omission to carry the warrant was not within the accused's conduct, knowledge or control. On these facts the dictum of causation was broken.  A person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him. If this condition is absent, any act or omission must be involuntary, or unconscious, or unrelated to the forbidden event in any causal sense regarded by the law as involving responsibility. Note:  Result oriented =>they could have used concept of "reasonable care." =>but policy considerations had main role

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