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Criminal Law NCA Summary

Criminal Law NCA Summary

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Outline for Canadian NCA exams
Outline for Canadian NCA exams

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For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca .

He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

CRIMINAL LAW
INTRODUCTION
[1] SOURCES OF CRIMINAL LAW

- With exception of contempt, criminal offences are created by statute, mostly by the Criminal Code [“CC”] * See Frey v Fedoruk (Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency. It is for Parliament and not for the Courts to decide if any course of conduct) * See CC s 9 - But common law defences are available under Canadian criminal law (e.g, Levis (City) v Tetrault – below; and CC s 8) - Common law CAN determine, however, how criminal offences are interpreted (e.g. R v Jobidon) [2] THE POWER TO CREATE CRIMINAL OFFENCES AND RULES OF CRIMINAL PROCEDURE

(a) Constitutional Division of Powers - Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences), but only the Federal Government can create “criminal offences”: s 91(27) Constitution Act (b) The Canadian Charter of Rights and Freedoms - The Charter can be used to invalidate offences that Parliament has created, and can be used to strike down rules of criminal procedure: * See, e.g, R v Heywood (Example of criminal offence being struck down): The Constitutional question was whether s 179(1)(b) of the CC infringed several sections of the Charter, and if so, whether those infringements were justifiable under s 1. HELD: The offence was too sweeping in relation to the objective (particularly in relation to its geographical ambit), and therefore limits liberty beyond what is necessary for Parliament to accomplish its goal) * See, e.g., R v Oakes (Example of a rule of criminal procedure being struck down): The SCC was called on to deal with the constitutionality of section 8 of the Narcotic Control Act, which provided that a person found in possession of a narcotic was presumed to be in possession for the purpose of trafficking, unless he established the contrary. HELD: That section, which requires an accused to disprove on a BoP the existence of a presumed fact, violates the presumption of innocence. The law cannot be saved by s 1 of the Charter, as it does not survive the rational connection test, and therefore it is invalid) - The Charter can also be used as an important interpretative tool by allowing courts to use constitutional values to influence the way statutes are interpreted: * See, e.g, R v Labaye: The issue in this case was whether what went on in l’Orage constituted “acts of indecency”. To ground criminal responsibility for indecency, the harm must be one which society formally recognizes as incompatible with its proper functioning (autonomy, liberty, equality and human dignity are among these values) [3] CLASSIFICATION OF OFFENCES

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

- Two general categories: “Indictable” and “summary” offences. Offences can be “hybrid” (i.e. prosecutor has right to elect whether to treat as indictable or summary) (this is not a 3rd category of offence, though) - The classification of offences has important implications for the penalties that are possible, and for the procedure that will be sued, including the mode of trial [4] INTERPRETING CRIMINAL PROVISIONS

Definitions - Definitions are found in CC s 2 (which apply throughout) and in the beginning of each Part Strict Construction - Traditionally, criminal statutes were interpreted strictly in favour of the liberty of the accused; although this principle continues to apply, it has been heavily modified by the purposive interpretation approach: * See R v Pare: “The words "while committing" in s. 214(5) do not require the murder and the underlying offence to take place simultaneously. Where the act causing death and the acts constituting the indecent assault all form part of one continuous sequence of events forming a single transaction, the death is caused "while committing" an offence for the purposes of s. 214(5). The offences under s. 214(5) all involve the illegal domination of people by other people. Accordingly, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder and makes it a single transaction. The murder represents an exploitation of the position of power created by the underlying crime and knits the two together. The conviction of first degree murder should be restored” Purposive Interpretation - Canadian law makes liberal use of purposive interpretation (see R v Pare above) French/English - Federal laws like the CC are passed in both English and French; each is equally authoritative and ambiguities in one language can be clarified by the other: * See, e.g., R v J (D) The Charter - The Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid: * See, e.g., Canadian Foundation for Children, Youth & the Law v Canada: FACTS: CC s 43 excludes from crime reasonable physical correction of children by their parents and teachers. The CFC, and other foundations, seek declaration that this exemption violates s 7 because it fails to give procedural protections to children; violates s 12 because it constitutes cruel and unusual punishment and violates s 15. ISSUE: Constitutionality of provision allowing parents and teachers to use minor corrective force REASONING:  s 7 analysis: Section 7 protects individuals from violation of their personal security. McLachlin found that there was no violation of section. The Crown had conceded that the law adversely affected the child's security of person, so the issue was whether the violation offended a principle of fundamental justice. The Foundation proposes three claims as mentioned above. McLachlin rejected the first claim that it failed to give procedural protection as children receive all the same protection as anyone else. On the second claim, she rejects that the "best interests of the child" is a principle of fundamental justice as there is no "consensus that it is vital or fundamental to our societal notion of justice."  s 12 analysis: Section 12 prevents "cruel and unusual punishment". Citing the standard of showing cruel and unusual punishment from R. v. Smith as "so excessive as to outrage standards of decency", McLachlin rejects the claim as the section only permits "corrective force that is reasonable" thus cannot be excessive by definition.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  S 43 does not lead to a violation of s 15 of the Charter, and the Foundation erroneously equates equal treatment with identical treatment. So while s 43 makes a distinction on the basis of age (triggering s 15), the distinction isn’t discriminatory. The question may be put as follows: viewed from the perspective of the reasonable person identified above, does Parliament’s choice not to criminalize reasonable use of corrective force against children offend their human dignity and freedom, by marginalizing them or treating them as less worthy without regard to their actual circumstances? HELD: The law stands

CRIMINAL OFFENCES The elements of an offence include: (1) The PHYSICAL elements (actus reus): the act that must be performed; the omission that must be proscribed; the circumstances or conditions in which the act must occur; the accused must have acted voluntarily; causation must be established (if relevant); and any consequence that must be caused by the act. (2) The MENTAL element (mens rea): as a general proposition, a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. [1] (a) ACTUS REUS Acts and Statutory Conditions:

- The act must be the act of the accused, and must be the kind of act described in the relevant provision, and the act must be committed under the circumstances or conditions specified in the offence, e.g.: an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s 348(1)(a) unless he “breaks” and “enters” something that qualifies as a “place” (b) Acts must be “Voluntary” or “Willed”:

- See voluntariness defences below (c) The “Act” of Possession:

- There are a couple of offences in the CC that have “possession” as an element (of the actus reus), e.g., possession of firearm related offences, possession of property obtained in a crime (s 354(1)), etc. - “Possession” is defined in s 4(3): A person has something in his “possession” where (a) He has it in PERSONAL POSSESSION (i.e. manual possession); OR KNOWINGLY has it in the actual possession or custody of ANOTHER PERSON (i.e. constructive possession); OR KNOWINGLY 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 another person (i.e. constructive possession) (b) Where ONE OF TWO PERSONS has anything in his custody or possession, with the KNOWLEDGE AND CONSENT of the rest, it shall be deemed to be in the custody of ALL OF THEM (i.e. joint possession) - Note that s 2 of the CDSA adopts this definition of possession

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - This section creates 3 types of possession: personal possession; constructive possession and joint possession R v York (States the law of manual possession: Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner) FACTS: Two trailers containing furniture shipments were stolen from a yard controlled by PCE Ltd – shipments total value exceeded 28 000. The appellant received a telephone call from Mr. Shannon. Mr. Shannon told him that there was "a bunch of stuff" in the warehouse. He asked the appellant if he had put it there. The appellant replied that he had not. They then drove to the warehouse where the appellant noted that there was a trailer backed up into one of the bay doors with no tractor unit hooked to it. When they entered the warehouse, the appellant said he was surprised to see a lot of furniture and lumber and that he did not know where they came from. He telephoned Mark Rogers, the manager, and asked him if he knew anything about the goods in the warehouse. Mr. Rogers told the appellant that he knew about the goods but refused to disclose where they came from. At that time, the appellant realized that the goods were probably stolen. He said he did not think through what he was going to do regarding the goods; he simply wanted to get rid of them. The appellant then borrowed a truck, hooked up the trailer and dropped it off at a location on Carpenter Street, not far from the warehouse, and he was arrested. ISSUE: Whether the Trial Judge Erred in Finding That the Evidence Established Beyond a Reasonable Doubt That the Appellant Possessed the Necessary Mens Rea for the Offence of Possession of Stolen Property REASONING:  The appellant testified. He knew the goods were stolen. He also exercised physical control over the goods. However, there was no evidence that he had any intention to deprive the rightful owner of the stolen goods, which is an essential requirement for possession in law  A brief handling of stolen goods with full knowledge of their character solely for the purpose of getting rid of them does not constitute possession, for example  This is because conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind. HELD: The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. Appeal allowed COMMENT: Note how the “act” of possession has a mental element; so sometimes the actus reus and mens rea are not distinct R v Terrence (States the law of joint possession re s 4(3)(b) – there must be evidence of knowledge, consent and control over the subject matter re: the person who does not manually possess the stolen goods) FACTS: Respondent, the passenger in a stolen car, was charged with its possession contrary to s. 313 of the Criminal . Code. The respondent testified that he didn’t know the car was stolen. There was no direct evidence to contradict his story. ISSUE: The important question raised by this appeal relates to the true meaning to be attached to the word “possession” as the same occurs in the context of s. 3(4)(b) of the Criminal Code and more particularly whether “possession” as there employed imports control as an essential element [Now s 4(3)] REASONING:  Knowledge and consent under s 4(3) must co-exist with some measure of control over the subject matter HELD: SCC agrees w/ Court of Appeal that control is a central element of possession; Appeal dismissed R v Pham (States the law in relation to constructive and joint possession: for constructive possession as set out in s 4(3)(a)(i) and (ii) AND joint possession defined in s 4(3)(b), there must be both knowledge and control; And provides an example of how the law of possession is applied) FACTS: There was no evidence of actual possession in that the appellant was not present in the apartment when the search was conducted, so that the Crown’s case rested on constructive or joint possession (within a premise). Drug exchanges were occurring at P’s apartment, and a neighbor saw and heard P opening door/collecting money. Nguyen became an occupant of the apartment. On March 3, 2003 at 4:40 p.m. the appellant was seen (by surveillance) to leave her apartment and did not return prior to the seizure of the drugs on March 5, 2003. Nguyen was the only person there during the search. ISSUE: Whether the appellant had knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute constructive or joint possession as defined in paragraphs 4(3)(a) and (b) of the Code. REASONING:

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  In order to constitute constructive possession, there must be knowledge, and some measure of control over the item  In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession.  Whether someone is in possession of something pursuant to section 4(3) of the Code is a question of fact to be determined on the evidence based on the inferences to be drawn in each case The evidence and the trial judge’s findings support the conclusion that she was in constructive and/or joint possession of the cocaine (the court lists the evidence and findings that exhibit knowledge and control, e.g.”the black purse containing the drugs and the bag containing the money were found in full view in the bathroom, a common area of the apartment) COMMENT: Remember that knowledge can be established by circumstantial evidence (don’t need direct evidence) (d) Consent as an Element of the Actus Reus

- Absence of consent by the victim is an important actus reus condition, and must be present for offences to occur - If alleged victim allegedly consented, must also consider whether the consent is obtained lawfully: s 265(3) R v Ewanchuk (Explains law on consent in relation to sexual assault, and gives an overview of the elements of a sexual assault) FACTS: Interview in van, E began touching, which progressively became more intimate, notwithstanding complainant saying “no”. Any compliance by complainant was done out of fear. Trial judge acquitted accused on grounds of implied consent. ISSUE: Whether the TJ erred in understanding of consent in sexual assault and whether his conclusion that the defence of implied consent exists in Canadian law is correct REASONING:  A conviction for sexual assault requires proof, beyond a reasonable doubt (“B/R/D”), of two elements: (1) the actus reus (unwanted sexual touching and absence of consent); (2) the mens rea (the intention to touch + knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched) The Actus Reus:  The absence of consent is subjective, determined by reference to the complainant’s subjective internal state of mind towards the touching. The actual state of mind of the complainant is determinative (purely subjective)  While complainant’s testimony is the only source of direct evidence as to state of mind, credibility must be assessed, in light of ALL EVIDENCE  No such thing as defence of “implied consent” in sexual assault cases. There are only two options: the complainant consented or did not consent  To be legally effective, consent must be freely given. If the complainant consented, or there is reasonable doubt about her-non-consent, circumstances might call into question what factors prompted her apparent consent (see s 265(3), which says that no consent is obtained where the “complainant submits or does not resist by reason of: (a) the application of force to the complainant; (b) threats or fear of the application of force to the complainant; (c) fraud; or (d) exercise of authority)  So, if established B/R/D that the complainant did not consent, the actus reus is established (assuming there was touching in a sexual manner, and the touching was voluntary). If reasonable doubt as to consent, or established that complainant activity participated in sexual activity, must still consider whether complainant consented because of fear, fraud etc. Mens Rea:  The accused might have an honest belief in consent: see s 265(4), which the accused need not assert. Accused simply has to bring forward some evidence to raise this as a possibility, and the court have to assess the evidence (and whether this raises a reasonable doubt over the victim’s state of mind) HELD: Appeal allowed and conviction entered R v Jobidon (Cannot consent to the intentional application of force to cause hurt or non-serious bodily harm)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). FACTS: Accused was charged with manslaughter, through the offence of assault, following a fist fight. Fighting started inside bar, and the parties agreed it was not over after they were kicked out. Outside, when victim was facing J, J struck victim with fist, hitting him hard on head. Victim was knocked to hood of car, and rendered unconscious by initial punch. J continued forward with the beating. ISSUE: Whether absence of consent is an element which must be proved by the Crown in all cases of assault, or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain cases. REASONING:  Although all criminal offences are defined in the Code, that doesn’t mean that the common law no longer illuminates these definitions, nor gives content to the various principles of criminal responsibility  The fact that s 265(3) sets out factors that vitiate consent does not mean that we cannot rely on CL to ascertain other ones  Where two people engage in a fight by mutual consent, the blows struck by each constitute an assault on the other, unless there is justifiable self defence (i.e. you cannot consent to the infliction of bodily injury, or non-trivial bodily harm)  The policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game R v Cuerrier (Develops the rules relating to how fraud vitiates consent under s 265(3)) FACTS: The accused was charged with two counts of aggravated assault pursuant to s. 268 of the Criminal Code. Even though he had been explicitly instructed, by a public health nurse, to inform all prospective sexual partners that he was HIV positive and to use condoms every time he engaged in sexual intercourse, the accused had unprotected sexual relations with the two complainants without informing them he was HIV positive. Both complainants had consented to unprotected sexual intercourse with the accused, but they testified at trial that if they had known that he was HIV positive they would never have engaged in unprotected intercourse with him. At the time of trial, neither complainant had tested positive for the virus. The trial judge entered a directed verdict acquitting the accused. The Court of Appeal upheld the acquittals. ISSUE: Whether a complainant’s consent to engage in unprotected sexual intercourse is vitiated by fraud when partner knows they are HIV positive and either fails to disclose or deliberately deceives her about it? If the consent is fraudulently obtained, can s 268 (aggravated assault) be applicable? REASONING:  It is not necessary, when considering whether consent is vitiated under s 265(3) (i.e. consent vitiated by fraud), to consider whether the fraud relates to the “nature and quality of the act”; all that is required is a fraud and a casual connection between that fraud and the submission or failure to resist  What is fraud? It involves: (i) DISHONESTY (determined objectively, ask whether there is deliberate deceit or non-disclosure of the HIV disease; note that the dishonest actions must relate to the obtaining of the consent); and (ii) DEPRIVATION (namely significant risk of serious bodily harm)  The greater the risk of deprivation, the higher the duty of disclosure – and since the failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences, there exists a positive duty to disclose  The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular case (e) Causation

- Where the relevant offence prescribes a “consequence” that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused that consequence beyond a reasonable doubt - So where an offence requires a specific consequence, causation becomes an element of the offence - The offences which prescribe a consequence include: (i) criminal negligence causing bodily harm (s. 221),

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). (ii) criminal negligence causing death (s. 220), (iii) dangerous operation causing bodily harm (s. 249(3)), (iv) dangerous operation causing death (s. 249(4)), (v) impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), (vi) assault causing bodily harm (s. 267(b)), (vii) aggravated assault (s. 268), (viii) sexual assault causing bodily harm (s. 272(1)(c)), (ix) aggravated sexual assault (s. 273(1)), mischief causing danger to life (s. 430(2)) and (x) arson causing bodily harm (s. 433(b)). - The law on causation, in overview form, is this: (1) Causation involves an analysis into both factual causation (i.e. the medial cause of death) and legal causation (i.e. whether the accused should be held responsible in law) (Menezes): a. Factual causation: (i) As there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the primary, or the only cause of death (Menezes). (ii) Regardless of whether the accused’s conduct is the sole cause, ask was it a material cause? The test is this: “was the conduct of the accused a significant contributing cause of the prohibited consequence?” (iii) If the act of the accused is too remote to have caused the result alleged, causation is not established (iv) If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused (R v Nette). But an intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. The abandonment of conduct requires a positive communication of notice. The sufficiency of the notice is determined by the nature of the offense and the degree of the accused’s participation (v) Factual causation is typically resolved by the ‘but for’ test b. Legal causation: (i) This inquiry concerns whether the accused should be held criminally responsible in law for that death – a moral reaction, a value-judgment – whether, in the circumstances, a “blamable” cause ought to be identified (R v Nette). (ii) Causation expresses an element of fault. That, together with the requisite mental element, is in law sufficient to base criminal responsibility. (iii) Note: there is a higher standard of legal causation to secure a first degree murder conviction (Nette).

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

(2) In the context of homicide, too, the accused’s conduct must be a “significant contributing cause” of the prohibited act (Nette). (3) Contributory negligence does not negate causation/criminal responsibility (Menezes) (4) Improper medical treatment does not usually break the chain of causation: s 225 Code (5) Note: accused must take victim as you find them (i.e. the thin skull rule) (Menezes) R v Williams (Where Crown cannot prove that the prohibited consequence occurred, the accused cannot be convicted) FACTS: W was HIV positive, and engaged in consensual sex with the complainant, who later contracted HIV. W kept the complainant in the dark about his disease, despite having unprotected sex with her. ISSUE: Whether an accused who fails to disclose that he has HIV to a complainant who, at the time of the alleged assault, could herself have been infected with HIV, can be convicted of aggravated assault. The issue is not with mens rea, the issue is whether the Crown has been able to prove all elements of the actus reus. REASONING:  Aggravated assault is an offence based on proof of certain consequences  The Crown must establish all of the elements of an assault, plus the aggravating circumstance (in this case, “endangers the life of the complainant”)  Section 268(1) is only one of a number of Criminal Code provisions that “call for a more serious charge if certain consequences follow.  The Crown was unable to prove the endangerment of life, and therefore unable to prove every element of the actus reus HELD: W acquitted on charge of aggravated assault R v Menezes (Causation is a two stage analysis, requiring “factual causation” and “legal causation”) FACTS: Two dudes racing, one dies. Defence says that the accused withdrew from the race at a material time before the accident, and this created a break in the causal linkage to the victim’s death. Dude pleads not guilty to criminal negligence causing death ISSUE: Whether a person who survived a street race in which the second participating party lost his life can be held criminally liable for that death solely based on his coparticipating in the race REASONING: Criminal negligence  Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of others: Criminal Code, s.219(1).  This is a marked and substantial departure in all of the circumstances from the standard of care of a reasonable person  In the context of a dangerously negligent act, the mens rea for the offence charged is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory  As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally interred from the facts Dangerous driving  The crime of dangerous driving, on the other hand, is established where the prosecution proves a marked departure from the standard of conduct of a reasonably prudent driver in all the circumstances: Criminal Code, s.249(1)(a). The basis of liability for dangerous driving is negligence. The question to be asked is not what the accused objectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care Hazard of Racing  A death caused as a result of a driver’s involvement in a race on a public street can amount to criminal negligence causing death  Racing on a public roadway resulting in the death of a passenger in one of the participating motor vehicles can also reasonably be found to constitute dangerous driving  Where the victim is the occupant of a third vehicle, dangerous driving may again be the appropriate result Causation  A determination of causation requires a finding that the accused caused the death of another both in fact and in law  FACTUAL causation is concerned with an inquiry as to how the victim came to his or her death, in a medical, mechanical or physical sense, and with the contribution of the accused to that result. In other words, were the actions of the accused beyond negligible? Where there are multiple operative, independent, and significant contributing causes,

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). competing causes need not be sorted out by the trier of fact in an effort to identify a predominant cause. Regardless of whether the accused’s conduct is the sole cause, was it a material cause? TEST: Was the conduct of the accused a significant contributing cause of the prohibited consequence? “If the act of the accused is too remote to have caused the result alleged, causation is not established.” Look at facts of case  LEGAL/IMPUTABLE causation inquiry concerns whether the accused should be held criminally responsible in law for that death – a moral reaction, a value-judgment – whether, in the circumstances, a “blamable” cause ought to be identified (R v Nette). Causation expresses an element of fault. That, together with the requisite mental element, is in law sufficient to base criminal responsibility.  In examining the traceable origin of the chain of events causing death, may become an issue. If the act of the accused is too remote to have caused the result alleged, causation is not established. If the accused’s actions are fairly viewed as only part of the history of the setting in which the prohibited result unfolded, without more, causation is not proven: R. v. Cribbin  If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused (R v Nette). An intervening act terminating the causal chain of events may be the withdrawal or abandonment by the accused of involvement in the dangerous enterprise. The abandonment of conduct requires a positive communication of notice. The sufficiency of the notice is determined by the nature of the offense and the degree of the accused’s participation Application  X can be directly responsible for the death of Z, if X and Y were racing, and Y kills Z as a natural result of the racing/criminal negligent driving. Each driver bears equal responsibility for its continued lifespan subject to withdrawal or intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created. This surely includes a risk of bodily harm or death to a co-principal arising out of miscalculation or other judgment error by that individual in the course of, and related to, pursuing the jointly maintained, and unlawfully conducted, dangerous activity.  M was not criminally negligent, but was dangerous driving (judge cites the testimony to show why), but his dangerous operation of the motor vehicle did NOT cause the death of the victim, who chose to maintain excessive speed after the accused slowed down. In these circumstances, if the accused slowed his speed to the range of 60% of that of the deceased nearly half a mile from the point of control loss, there must be a reasonable doubt, although nothing more, that his withdrawal from the race amounted to a sufficiently dramatic lack of commitment to keeping pace for it to be known to Jacob Meuszynski HELD: Guilty only of dangerous driving R v Nette (Leading decision on the standard for causation in criminal offences, including all homicide cases) FACTS: 95 year old lady robbed, tied up with wire on neck, and died. Accused charged w/ 1st degree murder (murder while committing the offence of unlawful confinement under s 231(5)) ISSUE: Determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. REASONING:  There must be factual and legal causation. Factual causation is concerned with an inquiry about how the victim cam to his or her death. Legal causation (which is referred to as imputable causation) is concerned with the question of whether the accused should be held responsible in law (i.e. the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred). It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished  There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra (i.e. “more than a trivial cause”; “significant contribution or cause”)  Causation is usually not in issue in 1st and 2nd degree murder cases, but generally is in manslaughter cases COMMENT: Also, this case deals with the higher standard of responsibility of imputable case (i.e. moral blameworthiness) that is required to secure a first degree murder conviction, and illustrates the think skull rule.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). (f) Omissions/Duties

- Some offences don’t require a positive act by the accused, but rather can be committed by showing that the accused failed to act, or omitted to act. - To be guilty of omission: (1) The offence must contemplate guilt for omissions (based on statutory interpretation) (2) The accused must be placed under a legal duty to act either by the provision charging him or By some incorporated provision (see ss 215-217) (3) The omission in question must be a failure to fulfil that legal duty R v Moore FACTS: Dude runs red with bike, stopped by officer, refuses to give name and address, and charged with unlawfully and wilfully obstructing a peace officer in the execution of his duty. RULE: Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute

R v Peterson FACTS: Dennis Peterson was convicted of failing to provide the necessaries of life to his father, Arnold Peterson, thereby endangering Arnold’s life (s 215). D lived with father A (84 yrs old) in messed up house. A wasn’t being looked after properly (food, clothes, housing); he fell sick many times etc REASONING: Elements of s 215(1)(c) and s 215(2) (i.e. the relevant sections of the charge) - s 215(1)(c): A duty to provide the necessaries of life arises when: “one person is under the other’s charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life. - The phrase “necessaries of life” includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm - s 215(2): Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other, without lawful excuse - For sub (2), the personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. The objective basis of liability includes an assessment of whether the person in charge could have acted other than as he or she did. - The words “without lawful excuse” in s. 215(2) provide a defence and serve to prevent the punishment of the morally innocent. The obligation to provide necessaries is not absolute and may be excused, for example, where there is financial inability The Meaning of “Under his charge” - First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in the charge of another. The dependency of the parent under a disability on an independent adult child is justified not only by their past course of dealing in which the parent supported the child but also by their relationship to one another in which an element of trust will usually be present - Second, the word “charge” is not unknown to the criminal law in other contexts involving adults. In the impaired driving context, the court characterized having “care, charge or control” of a vehicle as requiring “a kind of domination as in the master-servant relationship and as in the parent-child or teacher-beginner relationship” - Used in these contexts the word “charge” connotes, among other things, the duty or responsibility of taking care of a person or thing - In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to understand and appreciate their circumstances is a factor to consider. A parent who is not in full possession of his or her faculties may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the capacity to understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury - The evidence to the TJ indicated that the appellant was in charge of his father, and that the father was unable to withdraw from his son’s charge

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). HELD: Appeal dismissed; TJ findings stand R v Browne FACTS: The appellant, Dexter Browne, was charged with criminal negligence causing the death of Audrey Greiner by failing "to render assistance to [her] by failing to take her immediately to the hospital after undertaking to render such assistance. A and B (drug dealers) were friends. A swallowed a plastic bag containing crack cocaine to avoid its detection by police after being stopped. A began shaking and sweating in B’s room. B made a statement (at 2 am) which the TJ found to be an “undertaking” pursuant to s 217 (he said he was “going to take A to the hospital”). A arrived at 3:10 am dead at hospital by taxi. The TJ held that using a taxi instead of 911 constituted a “wanton and reckless disregard” for A’s life, contrary to s 219 (criminal negligence) ISSUE: Whether the trial judge erred in concluding that the appellant had caused Audrey Greiner's death by breaching a legal duty arising from an "undertaking" within the meaning of s. 217 of the Criminal Code to take her to the hospital. Only if the appellant can be found to have given an undertaking giving rise to a legal duty under s. 217 can he be found criminally negligent for "omitting to do anything that it is his duty to do" within the meaning of s. 219 of the Code. REASONING:  Given serious penal consequences of being convicted of causing death by criminal negligence, the relevant “undertaking” must have been made with binding intent  The evidence doesn’t disclose any undertaking of a binding nature; the words “i’ll take you to a hospital” hardly constitute an undertaking creating a legal duty under s 217 [2] SUBJECTIVE MENS REA

- Subjective mens rea is normally gleaned circumstantially, including by using the common sense inference that persons usually intend the natural consequences of their acts - Use the mens rea provided for in the relevant provision, as construed according to relevant criminal law principles - If an offence specifies the relevant state of mind, then only that state of mind will suffice (e.g. “assault” requires intentional touching, and not simply reckless touching) - If a true crime is silent as to the mental state and the offence requires a consequence, it is implied that “intention” or “recklessness” in bringing about the consequence will suffice - In what follows, the most common mental states are illustrated and identified (a) Intention, and Ulterior Mens Rea - The accused must have the very intention required by the relevant provision R v Vandergraff (V intended to throw the object, but not make contact with the victim, and therefore the “assault” was not intended. The assault provision, s 265, requires the intentional application of force to the person) R v Murray (M intended to hold the Bernardo tapes, but not for the purpose of wilfully attempting to obstruct justice (s 139(2)), and therefore he could not be found guilty. “Wilfully” constitutes the mens rea - is the act is done for the purpose of obstructing the course of justice. This is a “specific intent” offence and the onus is on the Crown to prove that Murray, when he secreted the tapes, intended to obstruct the course of justice) R v R (J.S) (RJS intended to shoot into a crow, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during his upcoming trial, depending on how the evidence comes out) (b) Subjective Mens Rea with Objective Features - Some criminal offences use standards to define criminal conduct (e.g. “dishonest”; “sexual” etc). - It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow. E.g. An accused can commit fraud even if he does not appreciate that the relevant transaction was “dishonest” R v Theroux (The “dishonesty” in fraud is determined objectively)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). FACTS: Accused, being directing mind of company, made false representations in order to secure unsecured deposits. Company later became insolvent, and investors lost deposit money. TJ convicted accused ISSUE: Whether the fact that the accused honestly believed that the project would be completed negates the mens rea of the offence of fraud. There is no doubt that the appellant deliberately practised a deceitful act, constituting the actus reus of the offence of fraud. REASONING:  Fraud: The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may, as we have seen, consist in merely placing another's property at risk. The mens rea would then consist in the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete HELD: The appellant is guilty of fraud. The actus reus is established: the appellant committed deliberate falsehoods, which caused deprivation. The mens rea is established: the appellant told the depositors they had insurance protection when he knew that they did not (i.e. he knew this to be false; and it may be inferred from his possession of this knowledge that the appellant knew that he was placing the depositors’ money at risk) R v Chase (The “sexual” part of a sexual assault is determined objectively, not subjectively) FACTS: C enters victims home and touches breasts, and tries to touch vagina. ISSUE: The definition of sexual assault REASONING:  The test for the recognition of sexual assault does not depend solely on contact with specific areas of the human anatomy. The test to determine whether the assault is “sexual” is an objective one, viewed in light of all circumstances  The intent 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. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual  Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only (i.e. the Crown need only prove that the accused intended to touch the complainant) HELD: Guilty of sexual assault (c) Recklessness - Recklessness is a subjective state of mind, whereby it is objectively unjustifiable to take a risk that the accused personally foresees will lead to a prohibited consequence - Recklessness will apply where the provision creates a consequence, but does not, as a matter of construction, require some more limited kind of mens rea - See also “wilful blindness” below R v Buzzanga and Durocher (d) Knowledge - The accused must generally know that the conditions of the actus reus exist. E.g., an accused cannot be convicted of assaulting a police officer, if she does not know the victim is a police officer - Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume the accused knows of the relevant conditions, UNLESS the accused presents a “mistake of fact” defence (e) Willful Blindness - Willfull blindness is related to, but distinct from, recklessness R v Duong (The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). FACTS: D’s friend commits murder, and then stays at D’s apartment, after indicating he was in trouble for murder and had no place to go. The trial judge held that the Crown had to prove that the appellant knew that Lam was a party to a murder when the appellant agreed to hide him from the authorities, and that wilful blindness of that fact would suffice to establish the necessary culpable mental state. ISSUE: Did the trial judge err in holding that the doctrine of wilful blindness was applicable and that the appellant was wilfully blind as to whether Lam had committed murder? REASONING:  Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.  The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry  Wilfull blindness will fulfill a mens rea requirement  Liability based on wilful blindness is subjective HELD: D was wilfully blind in this case R v Vinokurov (Wilfill blindness is imputed knowledge, and will fulfil the mens rea requirement, while recklessness is something less than that; where an offence requires knowledge on the part of the accused, recklessness is not applicable) FACTS: V charged w/ possession of stolen property. V, owner of store, received stolen property, which he claimed he did not know was stolen. ISSUE: Whether V knew the property was stolen REASONING:  When the term “knowingly” is used in a criminal statute, the reasonable person standard will not satisfy the mens rea requirement  Wilfull blindnesss will fulfil the mens rea requirement. Wilfull blindness is imputed knowledge, while recklessness is something less than that. So, where an offence requires KNOWLEDGE on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfied that requirement  Thus, recklessness cannot satisfy the knowledge requirement on a charge of possession of stolen property [3] OBJECTIVE MENS REA AND TRUE CRIMES

- The criminal law has been uncomfortable with objective fault, but has gradually accepted it for certain types of offences - For crimes using objective fault as mens rea, “penal negligence” (a more restricted form of negligence) is required. - The exception, though, is with “predicate offences” – i.e. aggravated forms of offence s that apply when serious consequences result, and include within their elements another complete (but lesser offence). For predicate offences, it is enough if the accused commits the underlying (or predicate) offence, and that the aggravated consequences was simply objectively foreseeable R v Martineau (Conviction for murder cannot rest on anything less than subject foresight of death) FACTS: Martineau and a friend, Tremblay, set out armed knowing that they were going to commit a crime; Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed two people after robbing them and their house. ISSUE: Is the offence of constructive murder unconstitutional? REASONING:  Elements of crime must exist in accordance w/ the principles of fundamental justice  s 230 expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section stands as an anomaly as regards the other murder provisions  It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death HELD: S 230 (a) and (c) are invalid R v Creighton (Defines unlawful act and criminal negligence manslaughter; and upholds the constitutionality of the manslaughter offence)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). FACTS: Mr. Creighton was convicted of manslaughter, arising from the death of Kimberley Ann Martin, who died as a result of an injection of cocaine given by Mr. Creighton. The trial judge found that the death constituted manslaughter either on the ground that it was caused by an unlawful act, or on the ground that it was caused by criminal negligence. ISSUE: Is the manslaughter offence unconstitutional b/c it requires only foreseeabiltiy of the risk of bodily harm, and not forseeability of death? REASONING: Background  Manslaughter is a crime of venerable lineage. It covers a wide variety of circumstances. Two requirements are constant: (1) conduct causing the death of another person; and (2) fault short of intention to kill.  That fault may consist either in committing another unlawful act which causes the death, or in criminal negligence. The structure of the offence of manslaughter depends on a predicate offence of an unlawful act or criminal negligence, coupled with a homicide Unlawful act manslaughter (1) Unlawful act : The unlawful act must be (i) objectively dangerous (i.e. one that is likely to subject another person to danger of harm or injury and a non-absolute liability offence) (R v DeSousa) (this is the actus reus) (ii) there must be intent to commit this underlying act (part of mens rea (iii) as well as objective forseeability of the risk of bodily harm that is non-trivial (R. v. DeSousa) (parto f mens rea) (2) Did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted. [NOTE: Personal factors are not relevant in this assessment, except on the question of whether the accused possessed the necessary capacity to appreciate the risk] Criminal negligence manslaughter (1) Criminal negligence manslaughter requires (i) an act that exhibits a marked departure from the standards of a reasonable person in all of the circumstances (i.e. the definition of criminal negligence in s 219 must be satisfied) (this is the actus reus) AND (ii) objective forseeability of the risk of non-trivial bodily harm (forseeability of death is not required) (this is the mens rea) (2) Did the accused possess the requisite capacity to appreciate the risk flowing from his conduct? If this further question is answered in the affirmative, the necessary moral fault is established and the accused is properly convicted. If not, the accused must be acquitted. Personal factors are not relevant, except on the question of whether the accused possessed the necessary capacity to appreciate the risk. HELD: The offence is not unconstitutional. R v Beatty (Defines the elements of the dangerous operation of a motor vehicle offence, s 249) FACTS: The appellant, Justin Ronald Beatty, was charged with three counts of dangerous operation of a motor vehicle causing death. The tragic accident that gave rise to these charges occurred when Mr. Beatty’s pick-up truck, for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. B says “I just lost consciousness”. He had been working in sun all day. REASONING: (i) Actus reus: The accused was driving dangerously, in light of all the circumstances, which is what is required in s 249 to satisfy the actus reus. (ii) Mens rea: The mental element in dangerous operation doesn’t require proof of a positive state of mind, such as intent or recklessness. And, indeed, there is no evidence here of any deliberate intention to create a danger for other users of the highway that could easily provide an aswer to this question. Hence, the trial judge was correct in finding that the question of mens rea in this case turns on whether Mr. Beatty’s manner of driving, viewed on an objective basis, constitutes a marked departure from the norm. By contrast, it is my respectful view that the Court of Appeal leaped too quickly to the conclusion that the requisite mens rea could be made out from the simple fact of the accident occurring, leaving no room for any assessment of Mr. Beatty’s conduct along the continuum of negligence.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

R v DeSousa (Defines the elements of the offence of unlawfully causing bodily harm, s 269) FACTS: The appellant was involved in a fight in which a bystander was injured when a bottle allegedly thrown by the appellant broke against a wall and a glass fragment from the bottle struck the bystander ISSUE: Does s 269 violate s 7 of the Charter? There are two underlying issues: (i) the mental element required by s. 269 and whether this element is constitutionally sufficient and (ii) whether s. 7 of the Charter requires as a constitutional minimum, foresight of each or any of the consequences that comprise the actus reus of an offence. REASONING:  To be brought within the ambit of s 269, the accused must have committed an (i) underlying unlawful offence that is objectively dangerous (i.e. one that is likely to subject another person to danger of harm or injury and a non-absolute liability offence), and (ii) intent to commit the underlying offence (part of mens rea) (ii) have caused (i.e. for liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offence committed) (part of actus reus) (iii) bodily harm to another person as a result of committing that underlying offence which is neither trivial nor transitory) (part of actus reus) (iv) while having objective foresight of bodily harm (part of mens rea)  Note this bodily harm will in most cases involve an act of violence done deliberately to another person. [4] EXTENSIONS OF CRIMINAL LIABILITY

(a) Aiding and Abetting - Can be convicted for aiding (physically supporting) or abetting (encouraging) the accused to commit the offence - Can be convicted for not only the offences they intended to aid or abet, but also another offence, provided that it is a foreseeable outcome of the offence they did intend to aid or abet - See CC s 21 R v Dunlop and Sylvester (Mere presence, and passive acquiescence, at the scene of a crime is not sufficient to ground culpability by way of s 21(b) and (c) – aiding and abetting. Some ACTIVE steps must be taken. HOWEVER, presence at the commission of an offence CAN be evidence of aiding or abetting if accompanied by other factors such as prior knowledge of the principal offender’s intention to commit the offence) FACTS: Complainant raped by 18 men, while she was being held by 2. She pointed to Dunlop and Sylvester as two of the men who raped her. The judge chose to instruct the jury upon parties to an offence under s. 21 of the Code, and it is in this respect that the convictions are challenged. REASONING: The law  Mere presence, and passive acquiescence, at the scene of a crime is not sufficient to ground culpability. Some active steps must be taken by word or action.  Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender's intention to commit the offence or attendance for the purpose of encouragement  A person cannot properly be convicted of aiding or abetting in the commis sion of acts which he does not know may be or are intended. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e. that their presence was with knowledge of the intended rape. Application  In this case there was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encour agement to the rape of the complainant

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). There was no evidence of any positive act or omission to facilitate the unlawful purpose. One could infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that was not sufficient. A person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended  The evidence failed to disclose any facts as distin guished from surmise or suspicion, upon which a jury could conclude beyond reasonable doubt that the accused had assumed a role which would qualify them as aiders and abettors under s. 21(1) of the Code HELD: The TJ erred in instructing the jury about s 21 R v Logan (Analyzes the constitutionality of s 21(2) – common purpose liability – in relation to the offence of attempted murder) FACTS: L and a few others were charged with a number of offences arising from a serious of robberies. This appeal pertains only to the charges against the two respondents for attempted murder which resulted from an incident during one of the robberies ISSUE: The only issue before this Court is the constitutionality of s. 21(2) of the Criminal Code. REASONING:  The appellant is challenging the constitutionality of s. 21(2) in general and, in particular, of the objective component of the section ("ought to have known").  The Court of Appeal, quite correctly, did not declare the objective component of s. 21(2) inoperative for all offences. They dealt specifically with the operation of the provision in relation to the offence of attempted murder and the possibility that a party to an attempted murder could be convicted upon proof of objective intent, whereas a conviction of the principal would require proof of subjective intent  With respect, I cannot construe Vaillancourt as saying that, as a general proposition, Parliament cannot ever enact provisions requiring different levels of guilt for principal offenders and parties  That said, however, there are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused under s. 7. If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum  I would declare inoperative the words "or ought to have known" when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose. (b) Counselling - If the accused counsels another person to commit an offence, and the offence is committed, then s 23 operates. If the offence isn’t committed, then s 464 operates R v Hamilton (Defines the elements for counselling an offence) FACTS: H offered for sale through the Internet access to a credit card number generator. Mr. Hamilton was charged under s. 464(a) of the Criminal Code, R.S.C. 1985, c. C-46, in four separate counts, with counselling the commission of indictable offences that were not in fact committed. The trial judge was not satisfied that Mr. Hamilton had acted with the requisite mens rea, or culpable intent, and she therefore acquitted him on all four counts ISSUE: Whether the TJ erred as to the issue of mens rea REASONING:  The actus reus for counselling is the active inducement of the commission of a criminal offence.  The mens rea consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.  The trial judge acquitted the accused on the count of counselling fraud because his motivation was mercenary as opposed to malevolent. The trial judge’s conclusion that the accused did not intend to induce the recipients to use those numbers is incompatible with the plain meaning of the “teaser” e mail and with her other findings of fact, including her finding that the accused understood that the use of the generated numbers was illegal. Her assertion that “[h]is motivation was monetary” immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). HELD: The trial judge confounded “motive” and “intent”, and H should be found guilty of the offence (c) Corporate and Association Liability

- See ss 22.1, 22.2 - Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the actus reus alone, there is no need to use any legal devises to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do NOT apply to regulatory offences. - For true crimes, the Criminal Code sets out standards for corporate and association liability Elements of Offences - Section 22.1 (applies to objective fault or negligence offences where an association is charged – only look at conduct of corporation): “An organization is party to an offence if”: (a) One or more of the corporations representatives alone or together do, or fail to do, anything that amounts to an offence of negligence on their part, WHILE acting within the scope of their authority; AND (b) Conduct of one or more senior officers of the organization responsible for the aspect of the organization’s activities that is relevant to the offence. His/her or their conduct must amount to am marked departure from what would reasonably be expected to prevent a representative from being a party to the offence. - Section 22.2 (applies to offences other than negligence-based offences): “An organization is a party to an offence if, with the INTENT at least in part to benefit the organization, one of its senior officers”: (a) Is a party to the offence (i.e. the non-negligence offence), while acting within the scope of their authority; OR (b) Directs the work of other representatives of the organization so that they do or fail to do things that are the external circumstances of the offence charged OR (c) Fails to take all reasonable measures to stop a representative of the organization, whom the senior officer knows is (or is about to be) a party to the offence, from being a party [Note: for s 22.1, in addition to any mental element that must accompany the external circumstances, the acts or omissions of the senior officer, the Crown must prove that a senior officer had the ulterior intent, at least in part, to benefit the organization by the prohibited conduct] - Section 22.2 applies to subjective mens rea offences charged against an association - See DEFINITIONS of “organization”, “representative” and “senior officer”: s 2 [5] ATTEMPTS

- See s 24 for definition of “attempts” - See ss 463 and 465 R v Ancio (For one to be guilty of an attempt, they must intend to commit the completed offence, and to have some act toward the accomplishment of that objective; e.g. for murder, there must be the intent to kill)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). FACTS: Accused broke into estranged wife’s apt. w/ a loaded gun; dude throws chair at him and gun goes off; convicted at trial of attempted murder b/c judge found that he broke in w/ intent to use weapon to force his wife to leave; C.A. overturned conviction and ordered a new trial ISSUE: What is the intent/MR req’d for an attempt to commit murder? REASONING:  As with any crime, to be convicted of an attempt, the Crown must prove mens rea, that is, the intent to commit the offence in question, and the actus reus, that is, some step towards the commission of the offence attempted beyond mere acts of preparation  Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done  Here, the completed offence of murder involves a kill ing. The intention to commit the complete offence of murder must therefore include an intention to kill  I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.  MR for attempted murder is the specific intent to kill. An attempt to murder, aimed at the completion of the full crime of murder, should not have an intent lesser than that of murder  Mental state falling short of that level may well lead to convic tion for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder. HELD: New trial ordered R v Deustch (Sets out how to distinguish between attempts and mere preparation, which does not constitute an attempt – focussing on the actus reus of an attempt) FACTS: Accused charged with attempting to procure female persons to have illicit sexual intercourse with another person. The accused posted ads for a secretary/sales assistant. Three women and a policewoman testified that the accused indicated that the job required sexual intercourse with clients to conclude contracts. Generous salary $$$ was promised. Trial judge acquitted on the basis that his acts did not go far enough because he had not offered the job to the woman. ISSUE: How to distinguish between an attempt and mere preparation REASONING:  There is no clear line between attempt and preparation.  The difference between attempt and preparation is qualitative, involving the relationship between the nature and quality of the act in question and the nature of the complete offence  1. Define the nature of the actus reus of completed offence.  2. Consider factors of proximity (how close was the completed offence?): Time, location, and acts under the control of the accused. HELD: The accused is guilty of attempting. I agree with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. There would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment R v Dery (No such offence as “attempting to conspire to do X”) FACTS: D convicted of attempting to conspire to commit theft, and of attempting to conspire to unlawfully possess proceeds. Never before has anyone been convicted in Canada of an attempt to conspire to commit a substantive offence of any sort. There was no evidence that either accused had taken any steps to carry out the proposed theft, and the trial judge was not persuaded that they had at any point agreed to steal or possess the liquor that was the object of their covetous musings: (2002), 7 C.R. (6th) 325. In the absence of a proven agreement, the judge quite properly felt bound to acquit the accused of the conspiracies charged. On each count, however, he convicted both coaccused of attempting to conspire, which he believed to be an included offence. ISSUE: Whether there is any legal basis for concluding that attempt to conspire to commit an indictable offence is a crime in Canada. HELD: No such offence

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

REGULATORY OFFENCES
- The following are some general points about regulatory offences: - They can be full mens rea offences (like true crimes), but must be a clear indication that mens rea is required - They are presumed to be strict liability offences (offences that can be committed by simple, non-penal negligence, with the accused bearing the burden of proving an absence of negligence to avoid conviction) - Some operate as absolute liability offences, and will be committed whenever the relevant actus reus is proved - It is important to be able to distinguish b/w true crimes from regulatory offences: R v Sault Ste. Marie (Distinguishes b/w the three types of offences: mens rea offences, strict liability and absolute liability offences; also discusses the defence of due diligence) FACTS: The City of Sault Ste. Marie was charged that it did discharge, or cause to be discharged, or permitted to be discharged, or deposited materials into Cannon Creek and Root River, or on the shore or bank thereof, or in such place along the side that might impair the quality of the water in Cannon Creek and Root River. ISSUE: Whether the City is guilty of an offence under s 32(1) of The Ontario Water Resources Commission Act REASONING: Background  Regulatory offences are not criminal in any real sense but are prohibited in the PUBLIC INTEREST; although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in substance civil in nature. They relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like. In this appeal we are concerned with pollution. The mens rea point  The distinction between the true criminal offence and the public welfare offence is one of prime importance. Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with willful blindness toward them. Mere negligence is excluded.  Absolute liability, on the other hand, entails conviction on proof merely that the defendant committed the prohibited act, and there is no relevant mental element  There have been a line of cases which adopt a middle ground between true crimes (requiring mens rea), and absolute liability offences, in the context of public welfare offences. The middle ground essentially opens up a defence of due diligence.  Defence of reasonable care: in this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof  There should be 3 categories of offences: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence (Public welfare offences will only fall into this category if such words as “willfully, with intent, knowingly, or intentionally” are contained in them; also, if the offence is a true crime, then there is a presumption of full mens rea) 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving on a BoP that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused honestly and reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability (So, here, prosecution must prove the act B/R/D, and it is open to accused to avoid liability by proving, on a BoP that he took all reasonable care). PRIMA FACIE, public welfare offences fall into this category.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault (the principle that punishment should in general not be inflicted on those without fault applies). Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. To determine if an offence is one of absolute liability, consider: the overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used. The Ontario Water Resources Commission Act s 32(1)  There is no presumption of full mens rea, because (a) this is a public welfare offence; (b) it comes from a provincial statute  What category of offence is it then? The present case concerns the interpretation of two troublesome words frequently found in public welfare statutes: “cause” and “permit.” These two words are troublesome because neither denotes clearly either full mens rea nor absolute liability. The conflict in the above authorities, however, shows that in themselves the words “cause” and “permit”, fit much better into an offence of strict liability than either full mens rea or absolute liability. Since s. 32(1) creates a public welfare offence, without a clear indication that liability is absolute, and without any words such as “knowingly” or “wilfully” expressly to import mens rea, application of the criteria which I have outlined above undoubtedly places the offence in the category of strict liability. Therefore, proof of the act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care. Actus reus: The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do so. The “causing” aspect centres on the defendant’s active undertaking of something which it is in a position to control and which results in pollution. The “permitting” aspect of the offence centres on the defendant’s passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. The close interweaving of the meanings of these terms emphasizes again that s. 32(1) deals with only one generic offence. Defence of reasonable care R v Chapin (Example of classifying an offence into one of the three categories) FACTS: Duck hunter, charged under Migratory Birds Regulations. Unlawful to hunt for migratory birds w/ing one quarter mile of a place where bait/grain has been deposited. It was a windy day. When she walked over the boards, in hip waders and carrying a gun, her sole concern was to avoid falling into the water. ISSUE: What category of offence is the following: “14. (1) Subject to subsection (2), no person shall hunt for migratory game birds within one-quarter mile of any place where bait has been deposited”? Note: Section 12(1) provides: 12. (1) Every person who violates this Act or any regulation is, for each offence, liable upon summary conviction to a fine of not more than three hundred dollars and not less than ten dollars, or to imprisonment for a term not exceeding six months, or to both fine and imprisonment REASONING: (1) What category of offence is it (re: Sault Ste Marie)?  It is NOT a “mens rea” offence: One would be hard pressed to characterize the offence created by s. 14(1) of the Migratory Birds Regulations as a “crime in the true sense. Violation is punishable upon summary conviction and not indictment. One must note the absence of the usual signals connoting mens rea such as “wilfully” or “with intent”.  The Migratory Birds Convention Act is a regulatory statute enacted by the Parliament of Canada for the general welfare of the Canadian public. S 14(1) of the Migratory Birds Regulations creates a public welfare offence which is not criminal in the true sense and it is therefore not subject to the presumption of full mens rea.  It is NOT an “absolute liability” offence: The language of the offence is straightforward, “No person shall…”. Yet there is not a strict prohibition on hunting, rather a hunt controlled within certain limits as to season, methods, and types and numbers of species taken. Nor can one ignore the controls on shipment and export of game, nor the stricter controls in certain prescribed geographic areas “for the control and management of such area”. Also note the SERIOUIS PENALTY The best the Crown can do to shift this offence into the category of absolute liability is to suggest that the availability of a defence of reasonable care would considerably weaken the enforcement of the legislation. This may be true, but as Weatherston J.A. observed, the problems that may be encountered in the administration of a statute or regulation are a very unsure guide to its proper interpretation. Difficulty of enforcement is hardly enough to dislodge the offence from the category of strict liability, particularly when regard is had to the penalties that may ensue from conviction  It IS a “strict liability” offence: Because it’s a public welfare offence, prima facie falls into this category. Further, it is a classic example of an offence in the second category delineated in the Sault Ste. Marie case. An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent. (2) Convicted?

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  No Reference re Section 94(2) of the Motor Vehicle Act (BC) (Absolute liability and imprisonment cannot be combined) ISSUE: Is the relevant section of the Motor Vehicle Act in contravention of s 7 of Charter? REASONING  The words “principles of fundamental justice” do not refer to procedure only. The proper approach to the definition of the rights and freedoms guaranteed by the Charter is a purposive one.  The principles of fundamental justice are to be found in the basic tenets of our legal system. The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.  Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law. Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system. Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves  It has long been recognized that the innocent not be punished.  A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person. Obviously, imprisonment (including probation orders) deprives persons of their liberty. I am therefore of the view that the combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one's rights under s. 7.  An absolute liability, which makes a person liable for an offence whether or not they took steps not to be at fault, violates the principles of fundamental justice. Therefore, any possibility of a deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. It is only through reasons of public interest can such offences be saved through section 1 of the Charter.  The Crown failed to show that the public interest of ridding the roads of bad drivers could be proportional to the limiting of people's rights by imprisoning them HELD: The section is unconstitutional R v Cancoil Thermal (If a regulatory offence is intended to be one of absolute liability based on an analysis of the wording of the offence, AND if that offence has as a potential punishment of imprisonment, then a court must interpret that offence to be one of strict liability to make it conform to the Charter) FACTS: Owners of a company took the guard off a piece of machinery, ostensibly in violation of an Ontario statute, and an employee cut his fingers down to the first joint. A violation of the impugned Act entailed a possible prison sentence ISSUE: Should the impugned section of the act be treated as an absolute liability offence? Note: There was a specific exclusion of a statutory due diligence defence to the relevant offence AND conviction of the relevant offence can lead to person being fined max 25 000 or imprisoned for 12 months max REASONING:  The specific exclusion of a statutory defence for this offence (although provided for other offences in the Act), suggests that the Legislature had determined that the subsection creates an absolute liability offence  But if that subsection were treated as creating an absolute liability offence, it would offend s 7 of the Charter --- In Reference re s. 9.4(2) of Motor Vehicle Act 1985 CanLII 81 (S.C.C.), (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, the Supreme Court of Canada held that the combination of absolute liability and the potential penalty of imprisonment was a violation of s. 7 of the Charter  To avoid a violation of s.7 of the Charter, [the impugned provision] must be treated as creating a strict liability offence. The defence of due diligence was available to the respondents. Levis (City) v Tereault (Illustration of due diligence defence failing)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). FACTS: Respondent convicted of motor vehicle related offences under the Highway Safety Code (namely having put a motor vehicle into operation w/out having paid registration fees). The postal service did not deliver the notice of registration renewal, which it returned to the SAAQ on February 14, 2002. In April 2002, the police stopped the vehicle and observed that its registration had expired due to a failure to pay the fees for the year in progress and had not been renewed. A complaint was then brought against the company, and it is in issue here. ISSUE: What type of offence is this? Should the conviction stand? REASONING:  The offences with which the respondents are charged belong to a vast category of offences known as regulatory offences  Classifying the offence in one of the three categories now recognized in the case law thus becomes a question of statutory interpretation  Dickson J. noted that regulatory or public welfare offences usually fall into the category of strict liability offences rather than that of mens rea offences. As a general rule, in accordance with the common law rule that criminal liability ordinarily presupposes the existence of fault, they are presumed to belong to the intermediate category (strict liability)  Absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent; This intent can be deduced from various factors, the most important of which would appear to be the wording of the statute itself: “The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations . . . .”  NOT a mens rea offence: Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence. The provision in no way places the burden of proving mens rea on the prosecution. Nor does it include any expression of the legislature’s intent to create an absolute liability offence. Furthermore, such an intent cannot be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers’ licences without it being necessary to deprive an accused of a due diligence defence.  A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence. Due diligence? In Mr. Tétreault’s case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case. The Municipal Court should have found the respondent guilty as charged and imposed the fine prescribed by law. HELD: Conviction stands

** Regulatory Offence Framework Answer **
STEP 1: What category of offence is this? - Classifying the offence into one of the 3 types identified in R v Sault Ste Marie is a matter of statutory interpretation: (1) Is the offence a TRUE CRIME or a REULGATORY/PUBLIC WELFARE OFFENCE? (a) If it’s a true crime, then there’s a presumption that it’s a full mens rea offence, and, to rebut the presumption, you would have to establish why it should not be a mens rea offence (by analysing the language of the offence): (i) If committing the offence is punishable upon summary conviction and not indictment, this is suggestive of a regulatory offence, and not a true crime (R v Chapin) (ii) if the offence comes from a provincial statute, this leans toward it being a regulatory offence and

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). not a true crime (R v Sault Ste Marie)] (b) If it’s a public welfare offence (which, on the exam, it is likely to be), then there is a presumption that the offence is a strict liability offence [Note: such offences relate to such everyday matters as traffic infractions, sales of impure food, violations of liquor laws, and the like] -- On exam, it will likely be presumed to be a public welfare offence, and prima facie a strict liability offence. But you always go through each category and analyse whether the offence belongs in it: (2) Is it a MENS REA offence? Look for the words like “wilfully, knowingly, with intent, intentionally” etc. But words like “cause” or “permit” do not indicate a mens rea offence (R v Sault Ste Marie). If not, consider the next question (3) Is it a STRICT LIABILITY OFFENCE (R v Sault Ste Marie). Look at the wording of the statute, its purpose, and see if the public interest is the focus here; if it is, then the strict liability presumption will arise. (4) Is it a ABSOLUTE LIABILITY offence? Consider the overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used. There must be CLEAR proof of legislative intent for it to be an absolute liability offence.  E.g. in R v Chapin, look at whether there is a STRICT prohibition of the relevant act – in that case, there were certain limits placed on hunting, but it was not an all or nothing prohibition, so that pointed towards it not being an absolute offence  E.g. in R v Chapin, there was a serious penalty, which pointed towards it not being an absolute liability offence  Note: If a regulatory offence is intended by Parliament/Legislature to be one of absolute liability, and that offence has as a potential punishment imprisonment, then a court must interpret the offence to be one of strict liability to make it conform to the Charter (R v Cancoil Thermal) STEP 2: Should the accused be convicted of the offence? (1) If the offence is one of: a. Strict liability: Then the proof of the act prima facie imports the offence, but the accused may avoid liability by proving that he took all reasonable care (i.e. the defence of due diligence). That is, the prosecution must prove the act B/R/D, and the accused can attempt to prove the due diligence defence on a BoP. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED]  Passivity cannot amount to due diligence (Levis v Tereault) b. Mens rea: Then the prosecution must prove the prohibited act and the relevant mental state B/R/D. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] c. Absolute liability: Then proof of the act imports the offence, and there is no defence of due diligence. [APPLY THE FACTS TO DETERMINE IF X IS CONVICTED] [Note: Try and apply the cases above as much as possible, and show command of the relevant law in this area]

DEFENCES

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

[1]

MENTAL DISORDER

- Everyone in criminal law is presumed to be sane, and must satisfy the requirements in s 16 to prove otherwise - Section 16 modifies common law defence of insanity: “No person is criminally responsible for an act committed or an omission made: (i) While suffering from a MENTAL DISORDER; AND EITHER (ii) the mental disorder rendered the person INCAPABLE OF APPRECIATING THE NATURE OR QUALITY of the act or omission OR (iii) the mental disorder rendered the person INCAPABLE OF KNOWING THAT THE ACT WAS WRONG.” - To establish this defence: (1) The accused must establish that he has a “mental disorder”, defined as a “disease of mind”: s 2 [To determine if the accused has a disease of mind, apply relevant case law]: R v Cooper (Provides a definition of “mental disorder”; start with this case, but then move on to Parks below, which expands the definition) “Mental disorder”:  Court begins by citing several case authorities/commission reports; e.g. In the Report of the Royal Commission on Capital Punishment (Eng.) (1949-1953), one finds a useful contribution to the discussion of what is meant by the phrases “mental disease” and “disease of the mind”. The Report reads at p. 73: …For us, therefore, mental disease is only one part of mental disorders of all kinds, and broadly corresponds to what are often called major diseases of the mind, or psychoses; although it may also arise in cases, such as those of epilepsy and cerebral tumour, which are not ordinarily regarded by doctors as psychotic. Among the psychoses are the conditions known as schizophrenia, manic-depressive psychoses, and organic disease of the brain. Other conditions, not included under this term, are the minor forms of mental disorder—the neurotic reactions, such as neurasthenia, anxiety states and hysteria— and the disorders of development of the personality—psychopathic personality. We are aware that this classification will not be unconditionally endorsed by all psychiatrists, and that some would prefer to include under the term “disease of the mind” even the minor abnormalities we have referred to. We believe, however, that the nature of the distinction we have drawn will be clear to them, and will be acceptable to them as the basis for a discussion of criminal responsibility  But that classification has been criticized as arbitrary, which shows that “disease of mind” can mean different things to different psychiatrists. To some, for example, it may include such things as neurasthenia, anxiety states, hysteria, and psychopathic personality. Others would exclude such disorders from the definition.  There is support for a “broad and liberal legal construction of the words disease of mind”  In summary, one might say that in a legal sense, “disease of the mind” embraces any illness, disorder, or abnormal condition which impairs the human mind and its functioning, EXCLUDING however, self-induced states caused by alcohol or drugs, AS WELL AS transitory mental states such as hysteria or concussion.” In order to support a defence of mental disorder, of course, the disease must be of such intensity that it renders the accused incapable of “appreciating the nature and quality of the violent act or of knowing that is it wrong.”  Underlying all of this discussion is the concept of responsibility and the notion that an accused is not legally responsible for acts resulting from mental disease or mental defect.  Although the term expresses a legal concept and a finding is made according to a legal test, psychiatric knowledge is directly linked to the legal conclusion, for medical testimony forms part of the evidence on which the trier of fact must reach its decision  Once the evidence is sufficient to indicate that an accused suffers from a condition which could in law constitute disease of the mind, the judge must leave it open to the jury to find, as a matter of fact, whether the accused had disease of the mind at the time the criminal act was committed

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). R v Parks (Modifies Cooper’s definition of “mental disorder”)  “Disease” of the mind” is a legal term and not a medical term, but contains a substantial medical component as well as a legal or policy component.  The medical component of the term, generally, is the medical opinion as to how the mental condition in question is viewed or characterized medically  The legal or policy component relates to: (a) the scope of the exemption from criminal responsibility to be affored by mental disorder; and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered state  Because disease of mind is a legal concept, a TJ cannot rely blindly on medical opinion.  Two distinct approaches to the policy component of insanity have emerged in automatism cases, the "continuing danger" and "internal cause" theories: (1) The first theory holds that any condition likely to present recurring danger should be treated as insanity (2) The second holds that a condition stemming from the internal make up of the accused, rather than external factors, should lead to a finding of insanity  The purpose of the insanity defence has always been the protection of the public against recurrent danger R v Kjeldson (Psychopathy or sociopathy is not included within the definition of mental disorder) FACTS: The accused was out on parole for a previous murder. In violation of his parole, he took a plane from BC to Saskatchewan. He took a cab into Regina. The driver was a woman. Later he called the cab company again and asked for the same driver. On this second call, he asked the driver to stop the car after which he raped her and killed her with a rock. Kjeldsen claimed to be psychotic and incapable of emotionally appreciating the significance of his act. There was overwhelming evidence that the accused was a psychopath ISSUE: Can psychopathy be exempted by s 16, within the words “incapable of appreciating the nature and quality of an act or omission”? REASONING  Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people…” ■ McIntyre J.—“…I do not think the exemption provided by [s. 16(1)] extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from ‘disease of the mind’.”  “Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people. … No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.” HELD: Psychopathy cannot be exempted (2) Then, the accused must establish that the disease of mind affected him/her in one or both of the two ways described in s 16: R v Cooper (Provides a definition of “appreciating” in the context of whether an accused can appreciate the nature and quality of their acts) “Appreciating”  Mere KNOWLEDGE of nature and qualify of an act does not equal APPRECIATION. ■ e.g.: a kid running on a wet surface “knows” that he is running, but does not understand the risk.  “To “know” the nature and quality of an act may mean merely to be aware of the physical act, while to “appreciate” may involve estimation and understanding of the consequences of that act. In the case of the appellant, as an example, in using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking, he was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death. In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death”

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  The McRuer Report Test, which Dickson adopts: “Was the accused person AT THE TIME of the offence… by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the NATURAL CONSEQUENCES that would flow from it?” The legally relevant time is the time when the act was committed  In the case of the appellant, as an example, in using his hands to choke the deceased, he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking, he was able to appreciate its nature and quality in the sense of being aware that it could lead to or result in her death. R. v. Oommen (Defines phrase “knowing the act was wrong”) FACTS: Oommen suffered from a mental disorder describes as a psychosis of a paranoid delusion type, and shot a women whom he thought was conspiring against him. Circumstances, such as the presence of a knife, and the going off of buzzers, helped to establish an air of reality to Oommen’s testimony of suspecting a conspiracy. Trial judge did not grant a defence of mental disorder because the accused knew that the society would think that his act was wrong. ISSUE: Whether this delusion exempted Mr. Oommen from criminal responsibility under s. 16(1) of the Criminal Code on the ground that he lacked the capacity at the relevant time to know the difference between right and wrong REASONING:  What is meant by the phrase "knowing that [the act] was wrong" in s. 16(1)? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society? Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do?  The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.  The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not ○ Test: “Did the accused lack the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not?” (810)  The accused in the case at bar accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case. HELD: New trial ordered [2] VOLUNTARY ACTS “NEGATIVING” THE ACTUS REUS AND AUTOMATISM

- The accused doesn’t satisfy the actus reus requirement unless his act is willed. A sophisticated application of the voluntariness concept was employed in R v Swaby. R v Swaby (An otherwise criminal act cannot be said to be voluntary unless the person is given reasonable time to avoid committing the act) FACTS: The appellant faced two sets of charges. He was charged with possession of an unregistered restricted weapon, possession of prohibited ammunition, possession of a weapon for a purpose dangerous to the public peace, being an occupant of a motor vehicle knowing there was present a restricted weapon for which no occupant held a permit permitting possession, and possession of a firearm with serial number defaced. The Crown’s case largely rested on the evidence of Johnson. He testified that the gun belonged to the appellant. Johnson denied any knowledge of its existence until the two were in the appellant’s car. He swore that as they were driving, the appellant became alarmed by the attention of the police. The appellant told Johnson that he had a gun. The appellant stopped the vehicle, handed Johnson the gun, and instructed him to dispose of it in a backyard. ISSUE: Did the trial judge err in his answer to jury questions relating to the occupant of motor vehicle charge? REASONING  The trial judge erred in failing to give the jury a more complete answer to the questions it posed.  To establish guilt on this count, the Crown had to prove the coincidence of the two essential elements of the offence as defined by s. 91(3), namely occupancy of the vehicle and the appellant’s knowledge of the weapon.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  It is implicit as well that the Crown had to prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant, as voluntary conduct is a necessary element of criminal liability  If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled to an acquittal. HELD: Conviction must be set aside - It is the voluntariness concept that explains the defence of automatism. Note the automatism defence won’t realistically operate in any case where the accused appears conscious of his conduct. It is reserved to those unusual cases where there appears to be some disconnect b/w the actions of the accused and his conscious will - Non-insane automatism is a full defence - The accused bears both the persuasive and evidential burden in establishing this defence (R v Fontaine; R v Stone) R v Parks (Look at both medical/expert evidence and legal/policy considerations, namely continuous danger and internal cause theories, to determine whether the automatism defence can succeed) FACTS: In the early morning of May 1987, Ken Parks drove to the house of his wife's parents. He attacked both of them with a kitchen knife, killing the mother and leaving the father seriously injured. Following the attack Parks went to the police station and turned himself in ISSUE: The issue before the Supreme Court was whether the condition of sleepwalking can be classified as non-insane automatism or should it be classified as "disease of the mind" (ie. mental disorder automatism) and warrant a verdict of "not guilty for reason of insanity" or non-insane automatism. This distinction is a matter of law and decided by the judge REASONING: Background  Only those found to be acting with the required voluntariness should be convicted of a crime. Automatism, although spoken as a “defence”, is conceptually a sub-set of the voluntariness requirement  An involuntary act, including one committed in an automatistic condition entitles an accused to an unqualified acquittal, unless the automatistic condition stems from a disease of the mind that has rendered the accused insane  Everyone is presumed to be sane until the contrary is proved.  The question of law at issue here, given that the accused laid the proper foundation for the defence of automatism, was whether sleepwalking should be classified as non insane automatism or a disease of the mind, thereby leaving only the defence of insanity for the accused “Disease of mind” or automatistic state?  “Disease” of the mind” is a legal term and not a medical term, but contains a substantial medical component as well as a legal or policy component.  The medical component of the term, generally, is the medical opinion as to how the mental condition in question is viewed or characterized medically  The legal or policy component relates to: (a) the scope of the exemption from criminal responsibility to be affored by mental disorder; and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered state  Because disease of mind is a legal concept, a TJ cannot rely blindly on medical opinion.  Two distinct approaches to the policy component of insanity have emerged in automatism cases, the "continuing danger" and "internal cause" theories: (1) The first theory holds that any condition likely to present recurring danger should be treated as insanity (2) The second holds that a condition stemming from the internal make up of the accused, rather than external factors, should lead to a finding of insanity  The purpose of the insanity defence has always been the protection of the public against recurrent danger  Sleepwalking is not a disease of mind (“DOM”), but instead it’s non-insane automatism because it likely won’t reoccur

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  Use these theories to help classify DOM or not & are therefore not bound by psych./med. Evidence  Must also consider policy in addition to theories above (floodgates). Relevant policy issue: recurring danger Application  On the evidence there is no likelihood of recurrent violent somnambulism. Moreover, none of the other policy considerations relevant to the distinction between insanity and automatism, for example, the floodgates argument, or that automatism can be feigned, is of concern in this case  Here, won’t be floodgates: Parks had supported his testimony with medical evidence and expert testimony  Somnambulism is a condition that is not well suited for analysis under the internal cause theory.  Our system of justice is predicated on the notion that only those who act voluntarily should be punished under the criminal law. Here, no compelling policy factors preclude a finding that the accused's condition was one of non insane automatism  However, because the medical evidence in each case impacts at several stages of the policy inquiry and is significant in its own right, sleepwalking in a different case on different evidence might be found to be a disease of the mind. R v Stone (Leading case on the automatism defence) FACTS: S and wife had conflicts in relationship. One day in car, S’s wife was telling him off, saying he’s a lousy fuck with a small dick, and S claimed that her voice began to fade away and a “whooshing” sensation came over him. The next thing he remembers is looking down at her body slumped over the seat and a knife in his hand. He had stabbed her 47 times. He hid her body in his truck's tool chest, left a note for his daughter, and took off to Mexico. REASONING: Psychiatric evidence  Defence psychiatrist testified that the appellant’s account of the facts in this case was consistent with a dissociative episode caused by a series of psychological blows  Crown psychiatrist testified that, although it is possible, it is extremely unlikely that the appellant was in a dissociative state when he killed his wife. Dr. Murphy’s scepticism was based upon several factors. First, she pointed out that the appellant’s reported decrease in concentration, difficulty following driving directions and memory loss were common phenomenon which, though consistent with dissociation, could easily be attributed to a number of other factors. Dr. Murphy also pointed out that the frenzied, overkill nature of the attack was equally consistent with rage as with dissociation. Nature of automatism  Two forms of automatism are recognized at law: insane automatism and non-insane automatism. Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism.  Involuntary action which does not stem from a disease of the mind gives rise to a claim of non-insane automatism. If successful, a claim of non-insane automatism entitles the accused to an acquittal.  On the other hand, involuntary action which is found, at law, to result from a disease of the mind gives rise to a claim of insane automatism. It has long been recognized that insane automatism is subsumed by the defence of mental disorder, formerly referred to as the defence of insanity. Accordingly, a successful claim of insane automatism will trigger s. 16 of the Code and result in a verdict of not criminally responsible on account of mental disorde The Stone Test
 Step #1: Is there a proper foundation for a finding of automatism?

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The law presumes people to act voluntarily, so accused must rebut presumption of voluntariness by showing that there is evidence upon which a properly instructed jury could find on the BOP that the accused was automatistic (Fontaine overruled this, air of reality requirement instead of BOP) Must be expert evidence to confirm its claim The trial judge will also examine all other available evidence, if any Examine factors to see whether defence has met the evidential burden (Fontaine states jury now examines these factors, because this would involve weighing of evidence): ■ Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

Step #2:

Whether the trigger is the victim If Step # 1 satisfied, the trial judge determines whether the condition alleged is mental disorder or non-mental disorder automatism (i.e. which defence should be left with the jury): The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder Judge to start from proposition that condition is DOM – does evidence take it out of category?

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Severity of triggering stimulus Corroborating evidence of bystanders Corroborating medical history Whether there is a motive for crime – ie, A motiveless act will generally lend plausibility to an accused’s claim of involuntariness

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(1) Internal cause factor:

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If “internal cause” it is DOM but may still be DOM if not internal The nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake. In effect, the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done For psychological blow automatism, evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done. ○ It will be internal if not “extraordinary event that would cause a normal person to dissociate”

(2) Continuing danger factor:

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Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind (but may still be DOM if not continuing danger) Consider expert evidence ○ Consider medical history/psychiatric history ○ Consider likelihood of triggers occurring

(3) Other “policy factors”

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There may be cases in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question; e.g., where the internal cause factor is not helpful because it is impossible to classify the alleged cause of the automatism as internal or external, and the continuing danger factor is inconclusive because there is no continuing danger of violence. Policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code. Policy considerations include:

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Reputation of administration of justice Ease of feigning (faking) Floodgates Ensuring public safety

 Step #3: Available Defences Following the Determination of the Disease of the Mind Question

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). (A) If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily. The question for the trier of fact will then be whether the defence has proven, on a balance of probabilities that the accused acted involuntarily. A positive answer to this question by the trier of fact will result in an absolute acquittal (B) If the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question HELD: The trial judge had found that only the non-insane automatism defence applied; however, the triggering effect for Stone was not something that would reasonably be expected from a normal person. Consequently, his defence should fail (note, however, that the SCC did not doubt that a more severe psychological blow could induce a normal person into an automatistic state) COMMENT: (i) Remember that one need not be asleep to achieve a state of automatism. A person who is awake and sane may suffer a “psychological blow”; (ii) Majority took judicial notice that it will only be in rare cases that automatism is not caused by mental disorder. R v Fontaine (Qualifies the Stone test in some ways) FACTS: The accused worked as a garage mechanic. He received a call from R, a disgruntled former employee, who said, “We’re coming to get you, pigs.” The accused later heard from a co-worker that the victim had been offered a contract to kill both of them. Feeling that he was being watched and followed, the accused purchased a firearm. One evening, the accused thought he saw R lurking outside his home. The co-worker came by to check, but noticed nothing unusual. During the night, after smoking marijuana, the accused thought he heard someone breaking into his home. He fired the gun at doors and windows and into walls and concluded that he had shot the intruders. Seeing the victim at the garage the next day, the accused shot and killed him. Before a judge and jury, the accused pleaded mental disorder automatism. Several psychiatrists gave evidence. The judge refused to put this defence to the jury on the ground that the required evidential foundation had not been laid. The accused was convicted of first degree murder. The Court of Appeal quashed the conviction and ordered a new trial. ISSUE: (1) Did the Court of Appeal err in law as to the nature of the evidential burden on a defence of mental disorder automatism? (2) Did the Court of Appeal err in law in concluding that the respondent had discharged that burden in this case and was therefore entitled to have his defence considered — and decided — by the jury? REASONING:  Stone case is a bit overzealous in its attempt to almost make non-mental disorder automatism impossible to argue.  Stone can no longer be read that way in view of the Court’s subsequent decisions, particularly R. v. Arcuri, and R. v. Cinous.  In the case of “reverse onus” defences, such as automatism, it is the accused who bears the persuasive and the evidential burdens. Reverse onus defences will therefore go to the jury (be in play) where there is any evidence upon which a properly instructed jury, acting judicially, could reasonably decide the issue (air of reality)  Where mental disorder automatism is raised as a defence, an assertion of involuntariness on the part of the accused, supported by the logically probative opinion of a qualified expert, will normally provide—as it did in this case—a sufficient evidentiary foundation for putting the defence to the jury.  So, for step 1 of the automatism defence analysis, the “air of reality” test must be met  Further, there is to be no weighing of the factors which were suggested in Stone (this can be left for the jury to do) (i.e. may apply those factors outlined in Stone at step 1, at step 3 by the trier of fact) COMMENT: Compare reverse onus defences, like automatism, with “ordinary” defences, where the accused has no persuasive burden at all. Once the issue has been “put in play”, the defence will succeed unless it is disproved by the Crown beyond a reasonable doubt.

** Final Non-insane/insane Automatism Defence Framework **

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). (as per Parks; Stone; Fontaine) STEP (1): Is there a proper foundation for a finding of automatism?  The law presumes people to act voluntarily, so [the accused] must rebut presumption of voluntariness (Parks; Stone)  To do so, [the accused] must show that there is an “air of reality” to the defence, namely that there is some evidence with which a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused (Fontaine)  Note that the evidence must be supported from psychiatric expert evidence (Stone) STEP (2): If Step # 1 satisfied, the trial judge determines whether the condition alleged is mental disorder or non-mental disorder automatism (i.e. which defence should be left with the jury):  The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder  Judge to start from proposition that condition is disease of mind, and asks whether evidence takes it out of category (Stone)  Judge should consider the following: (a) Internal cause factor: ● If the condition stems from an “internal cause”, this means that the condition is a DOM (Note: if not internal cause, still may be DOM) ● The nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake. In effect, the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done ● For psychological blow automatism, evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done. ○ It will be internal if not “extraordinary event that would cause a normal person to dissociate” (b) Continuing danger factor: ● Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind (but may still be DOM if not continuing danger) ● Consider expert evidence ○ Consider medical history/psychiatric history ○ Consider likelihood of triggers occurring (c) May consider other “policy factors” ● There may be cases in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question; e.g., where the internal cause factor is not helpful because it is impossible to classify the alleged cause of the automatism as internal or external, and the continuing danger factor is inconclusive because there is no continuing danger of violence. ● Policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code. ● Policy considerations include: ○ Reputation of administration of justice

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

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Ease of feigning (faking) Floodgates potentiality Ensuring public safety

STEP (3): Available defences for trier of fact to consider (a) Non-insane automatism? If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of nonmental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily. The question for the trier of fact will then be whether the defence has proven, on a balance of probabilities that the accused acted involuntarily. A positive answer to this question by the trier of fact will result in an absolute acquittal Here, jury may be instructed to consider things such as: ■ Whether there is a motive for crime – ie, A motiveless act will generally lend plausibility to an accused’s claim of involuntariness ■ Severity of triggering stimulus ■ Corroborating evidence of bystanders ■ Corroborating medical history ■ Whether the trigger is the victim (b) Insane automatism? If the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question A successful defence of mental disorder automatism will result in a verdict of not criminally responsible on account of mental disorder as dictated by s. 672.34 of the Code. Under s. 672.54, an accused who receives this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital; [3] INTOXICATION

- Remember that the defence applies to both drugs and alcohol - The applicability of the intoxication defence, as shown below, turns on whether an offence is one of GENERAL or SPECIFIC INTENT: General Intention Offences 1. assault (s. 266) 2. arson causing bodily harm (s. 433) 3. break enter and commit (s 348(1)(a)) Specific Intention Offences 1. assault w/ intent to resist arrest (s. 270(b)) 2. arson w/ intent to defraud (s 435) 3. break enter w/ intent to commit (s 348(1)(b))

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

4. sexual assault (rape) (s 271) 5. manslaughter

4. touching for a sexual purpose (s 151) 5. murder

***Note: this categorization assumes voluntary intoxication***
6. theft 7. attempted assault, break and enter, sexual assault, etc (a) Simple Intoxication - Simple intoxication “defence” operates only if proof of intoxication helps leave the judge or jury in reasonable doubt over whether the accused form the relevant mens rea (so it actually isn’t really a defence) - Thus, the “defence” only applies if intoxication prevents the formation of the specific intent required by the relevant section - NOTE: This is limited to specific intent offences. For general intent offences, the question of mens rea will be assessed on the assumption that the accused was not intoxicated (even if he was). And, note that even if you are found not guilty of a specific intent offence on the account of intoxication, you can still be convicted of an included general intent offence (e.g. murder => manslaughter, e.g. assault with intent => assault) - See R v Daviault below for a distinction between general and specific intent offences R v Bernard (Sexual assault causing bodily harm is a general intent offence, and therefore simple intoxication doesn’t work as a defence) FACTS: B charged w/ sexual assault causing bodily harm (s 246.2(c)). B committed the sexual assault upon the eighteen year old complainant in his apartment. It was conceded that intercourse had taken place without the consent of the complainant. During the course of the assault, the appellant punched her, caused an injury to her eye, and threatened to kill her. ISSUE: The intoxication defence; distinguishing between general and specific intent crimes REASONING:  Sexual assault merely adds the requirement of causing bodily harm to complainant. Resulting interference w/ physical integrity of the complainant aggravates the seriousness of a sexual assault but the mental element remains the same. Therefore it’s a general intent offence (i.e. the mental element is the intent to commit the assault)  General intent: offence in which the only intent involved relates solely to the performance of the act in question w/ no further ulterior intent or purpose.  Specific intent: involves the performance of the actus reus, coupled w/ an intent or purpose going beyond the mere performance of the questioned act (e.g. assault with the intent to maim or wound)  Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged it may apply. The defence, however, has no application in offences of general intent.  For general intent offences simple intoxication does not work because: ○ A person is presumed to have intended the natural and probable consequences of his actions. ○ In cases where accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, Crown may meet this evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the fact of voluntary self-induced intoxication by drugs or alcohol. ○ The reckless behaviour in attaining the level of intoxication affords necessary evidence of a culpable mental condition. ○ Policy grounds = can’t intoxicate yourself; commit a crime, and then use your intoxication as a defence here

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  Does it violate s. 7 and s. 11(d) of the Charter? ○ Not a violation. ○ Rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent, and are, indeed, criminally blameworthy. ○ While rule excludes consideration of voluntary intoxication in the approach to general intent offences, it nonetheless recognizes that it may be a relevant factor in those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives and purposes. ○ Only intrudes upon security of the person in accordance with sound principles and w/in established boundaries of legal process. R v Robinson (Overrules MacAskill; outlines two step process when dealing with claims of simple intoxication) FACTS: The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After being instructed on provocation, self defence and intoxication, the jury found the accused guilty of second degree murder. The Court of Appeal, however, allowed his appeal. ISSUE: (1) How juries should be instructed regarding evidence of intoxication; (2) Whether the charge to the jury, read as a whole, constituted misdirection and reversible error on the issues of intoxication, the common-sense inference that a person intends the natural and probable consequences of his or her acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt; REASONING:  The rule in MacAskill provides that intoxication is not a relevant factor for triers of fact to consider except where the intoxicant removed the accused’s “capacity” to form the requisite intent  But a trier of fact only need to find that the accused did not have the mens rea (i.e. intent in fact) for the offence and if not found, do not need to inquire about capacity to have intent. Why look at capacity when the offence says D is only guilty if has he has intent?  Of course, if he lacked the capacity to form that intent, then he did not have the intent, but the converse proposition does not follow, i.e., it does not follow that just because he had the capacity, he also had the specific intent.  It would be contrary to the Charter to require capacity because it would allow an accused to be convicted in the face of a reasonable doubt as to whether he had the required mens rea. ● The inquiry is in the actually state of mind and not the capacity to have a state of mind ● Threshold that must be met: must be evidence that the intoxication must have undermined the mens rea. Must have air of reality.  The rule in MacAskill should be overruled  What new rule should replace MacAskill? (1) TJ must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonably doubt (2) TJ then instructs jury that the issue before them is whether the Crown has satisfied them BRD that the accused had the requisite intent (e.g. In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death) (b) Extreme Intoxication

- Where extreme intoxication applies, it can operate as a defence to both general and specific intent offences, at least at common law - The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions - Extreme defence is a complete defence to criminal offending - The “extreme intoxication” CL defence was developed in Daviault:

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). R v Daviault FACTS: D sexually assaults crippled old lady ISSUE: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code, R.S.C., 1985, c. C 46, constitute a basis for defending a crime which requires not a specific but only a general intent? REASONING:  Where intoxication is so extreme an essential element of the offence, voluntariness, is not present. Can’t hold someone morally at fault w/ absence of voluntariness.  Court held EI had to be accepted b/c of Charter - s. 11 (d) presumes individuals to be innocent, s. 7 contrary to PFJ to commit someone if they didn’t voluntary commit something.  To use defence of EI, you need: ○ 1. Expert evidence (that the accused was in a state of automatism or insanity) ○ 2. Accused must prove, with that expert evidence alongside any other evidence that, on a BOP, he was in an extreme state of intoxication  Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily.  Note: Should it be thought that the mental element involved relates to the actus reus rather than the mens rea then the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act.  Note: Court noted that this defence would only be available in rare cases, essentially where the accused was an automaton BUT see s. 33.1 of CC:

● ●

Extreme intoxication is NOT a defence to any offence which involves assault as an element or involves interfering, or threatening to interfere, with a persons bodily integrity, whether or not that person, by reason of the intoxication, lacked the general intent or voluntariness required for the offence So, the defence of EI after Daviault is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats of violence) SELF DEFENCE

[4]

- There are 4 separate but potentially overlapping statutory defence: s 34(1), 34(2), 35 and 37. - Note that the concept of provocation for the purpose of self defence is defined in s 36. - The following cases interpret these provisions: R v Pintar (Explains the relationship between ss 34(1) and (2) and the general approach to using the various defences) FACTS: P started seeing R’s (victim’s) wife. R made known he wanted to kill P. R enters P’s home, takes swing at P, and P ducks punch and knocked R to floor. After more threats to P’s life, P shot and killed R. ISSUE: Relationship between s 34(1) and (2), and the general approach that should be taken using the various defences REASONING: Issue 1 - The TJ erred in failing to leave the “single transaction” option to the jury – i.e. that the initial unprovoked assault by R still had significance at the events which occurred outside the home. The error takes on special significance in respect of s. 34(2) since that provision formed the essence of the appellant's claim to self-defence Issue 2

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - Unlike s 34(1) which speaks to the issue of intent, s 34(2) does not. The plain wording of s. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault. By necessary implication, Parliament's silence may be taken to mean that s. 34(2) is meant to apply to accused persons who intend to kill or cause grievous bodily harm, as well as to those who do not have such intent, but who do in fact cause death or grievous bodily harm Issue 3 - In order for the appellant to succeed on s. 34(2), it was necessary that the jury believe or have a reasonable doubt that at the time of the shootings, the appellant genuinely believed on reasonable grounds, that he was in grave danger from the violence with which Ross and Gill pursued their attack upon him, and that his use of deadly force in response to that attack was necessary. Background information about the attackers’ propensity for violence is relevant here. R v Cinous (Shows how the defence in s 34(2) has subjective and objective elements) FACTS: C heard that M and Y wanted to kill him. M and Y, one day, asked C to assist in a computer theft. When they met up, M and Y were acting suspicious; M was wearing latex gloves, and they kept touching their jackets like they had a gun it. While driving, C pulled over to gas station, pulled out gun and shot M in back of head. C testified that this was an instinctive reaction to a situation of danger. ISSUE: Interpretation of self defence under s 34(2) REASONING: Elements of the defence  To succeed in a defence of self-defence, there must be: ■ The existence of an assault (did the accused reasonably and actually believe that s/he was unlawfully assaulted?) ■ Reasonable apprehension of death or grievous bodily harm. ■ Reasonable belief in the absence of alternatives to killing or causing GBH (It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds)  Note: if any of these elements lack an air of reality, the defence should not be put to the jury  Each of the three elements have both a subjective and objective component. These three elements must be real as perceived by the accused (subjective) and be reasonable (objective). ○ With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances. ○ The “whole defence” must have an air of reality and backed by evidence. (987) ○ The accused’s testimony can provide a basis for inferring that both the subjective AND objective components of each elements have been met ○ Binnie, concurring, does not grant self-defence to criminals who set their own “rule of the criminal subculture, which is the antithesis of public order.” (993) Criminals cannot claim self-defence if they avoid an alternative fearing that the alternative would face them with arrest. Application  Unlawful assault? It would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances. There is an air of reality to the subjective component of the defence as there is direct evidence on the accused’s beliefs, in the form of the accused’s testimony. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked.  Reasonable apprehension of death or GBH? Yes. The accused’s testimony is unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger  Reasonable belief of no reasonable alternatives to killing? It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds. There is an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative. The accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a “mere assertion” of the element of the defence. However, the belief that the accused had no other option but to kill must have been objectively reasonable. Here, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).

** Summary of the Self Defence Provisions ** S 34(1):  Applies where there is an unlawful assault against the accused his unprovoked [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section]  Accused may repel force by using force if the force used: (a) Is not intended to cause death or GBH; (b) Is no more than necessary to defend themself  Note: (a) This section may not be used where accused intended to cause death or GBH (R v Brisson) (b) An unlawful assault against accused need not actually occur; it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (c) The accused need not have any apprehension of death or GBH S 34(2):  Applies where there is an unlawful assault, whether provoked or unprovoked, and accused, to repel the assault, causes death or GBH to another [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section]  Accused is justified in causing death or GBH in response to the assault only if: (a) He causes death or GBH under a reasonable apprehension of his own death or GBH from the violence with which the original assault was made; and (b) He believes, on reasonable, grounds, that there are no alternatives to killing or causing GBH in order to preserve himself - Note: (a) An unlawful assault against accused need not actually occur; it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (b) Each of the above elements must have an air of reality to them (Cinous) (c) Each of the above element (3 elements) has a subjective and objective component: first, inquire about the subjective beliefs of the accused; second, ask whether those perceptions are objectively reasonable (Cinous) S 35:  Applies either where: (i) the accused, without justification, assaults another but didn’t commence the assault with intent to cause death or GBH; OR; (ii) where the accused provoked an assault him by another  Accused justified to the use of subsequent force against him (in the case of (i)), or assault against him (in the case of (ii), only if force used: (a) Under the reasonable apprehension of death or GBH from the person who he has assaulted/provoked (b) In the belief, on reasonably grounds, that it’s necessary to preserve himself from death or GBH (c) He declined further conflict and quitted or retreated from it as far as it was feasible to do before the necessity of preserving himself from death or GBH s 37:

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  This is used only where other provisions don’t apply [5] NECESSITY

- The defence of necessity permits the conduct of the accused to be excused where its elements are met; the defence, though, is heavily circumscribed - The logic behind this defence “rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience” R v Latimer  The defence of necessity is narrow and of limited application to criminal law  The accused must establish the existence of 3 elements: (1) Imminent peril or danger: Disaster must be imminent, or harm unavoidable and near – it isn’t enough that peril is foreseeable or likely, it has to be on the verge of transpiring (e.g., here, the accused did not himself face any peril, and T’s ongoing pain did not constitute an emergency in this case. T’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril, particularly when better pain management was available) (2) No reasonable legal alternative to the course of action: Ask, given that the accused had to act, could he nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? (e.g., here, the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on, with what was unquestionably a difficult situation, by helping T to live and by minimizing her pain as much as possible or by permitting an institution to do so) (3) Proportionality between the harm inflicted and the harm avoided (e.g., here, leaving open the question of whether the proportionality requirement could be met in a homicide situation, the harm inflicted in this case was immeasurably more serious than the pain resulting from T’s operation which the accused sought to avoid. Killing a person — in order to relieve the suffering produced by a medically manageable physical or mental condition — is not a proportionate response to the harm represented by the non life threatening suffering resulting from that condition)  What standard to employ? For the first 2 of the 3 elements, a modified objective test is employed (i.e. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person, including his ability to perceive the existence of alternative courses of action). The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise HELD: The trial judge was correct to remove the defence from the jury since there was no air of reality to any of the three requirements for necessity [6] DURESS

- The defence is available under s 17 CC, and at common law. Section 17 identified a limited defence, but the common law and Charter have extended its application: R v Hibbert FACTS: H accompanied M at the time M shot F. H was punched in the face by M as a way of forcing H to help him find F. H helped get M down from his apartment where he was subsequently shot REASONING:  s 17 of the Code does not constitute an exhaustive codification of the law of duress. S 17 applies only to persons who commit offences as PRINCIPALS. The common law defence applies to persons liable as parties  The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in question that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse based defence (either the statutory defence set out in s. 17 of the Criminal Code or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea.  The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress  An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. Rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. The question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account. R v Ruzic FACTS: The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code. The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for a person “who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed”. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms, raised the common law defence of duress and was acquitted. The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal. ISSUE: Scope and constititutionality of the defence of duress REASONING:  Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. The plain meaning of s. 17 is quite restrictive in scope. The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The underinclusiveness of s. 17 infringes s. 7 of the Charter. The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1. In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements seemingly do not minimally impair the accused’s s. 7 rights.  The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence  The common law defence of duress frees itself from the constraints of “immediacy” and “presence”. The elements include: (1) A threat to the integrity of the person: The law includes a requirement of proportionality between the threat and the criminal act to be executed. The accused should be expcted to demonstrate some fortitude to put up a normal resistance to the threat (2) The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. Although the threat need not be immediate, there must be a close temporal connection between the threat and the harm threatened (i.e. the threat had to be a real threat affecting the accused at the time of the offence) (no immediacy requirement) (3) Threats need not be made by a person who is at the scene of the crime (no presence requirement)  A modified objective test is employed [7] PROVOCATION

- See s 232

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CRIMINAL PROCEDURE
THE CHARGE

[1]

LAYING THE CHARGE

- No person may be considered an accused in the absence of a charge and, therefore, no court can have jurisdiction over the prosecution of a person in the absence of a charge - With the exception of direct indictments, indictable offences are charged when an information is sworn, received, and approved by a judicial officer in accordance with sections 504 and following of the CC [This procedure applies equally to offences prosecuted by summary proceedings under Part XXVII CC; see s 795] - s 504 (non-discretionary, ministerial function): Justice must receive the information where: (i) “any person” who has reasonable grounds to believe an offence has been committed; (ii) under oath, lays an information in writing; AND (iii) the information alleges a number of required things - s 506: An information may be laid in the manner set out in Form 2 - s 507 (substance of information considered): Once the information has been received (under s 504), the justice who received the information must consider the substance of the information’s allegations. Essentially, judge, to endorse it, must conclude that there are REASONABLE GROUNDS, as disclosed in the information and any evidence adduced thereof, that the offence was committed [If the judge signs the information, that marks the moment at which a charge is formally laid and a prosecution begins] - The charge document: whether the trial proceeds by information (for provincial courts) or an indictment (for superior courts), it is the starting point for the trial and sets out the case e the accused has to meet. [2] SIGNIFICANCE OF THE CHARGE

- The accused is in jeopardy of conviction only for the offence charged, and for any offences that are “included” in the criminal charge, but nothing more: R v G.R. FACTS: GR acquitted of the charge of incest. ISSUE: Whether the rules governing “included” offences under s 662 of the Criminal Code can be applied to justify the result in this case of the respondent being found guilty of sexual assault/sexual interference, but being acquitted of the charge of incest REASONING:  It is fundamental to a fair trail that an accused knows the charge or charges he or she must meet – the proper focus is on what the Crown alleges, not on what the accused already knows  The Crown seeks to have the respondent convicted of charges which require the prosecution to establish elements which were not part of the allegations against him at trial

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  The Crown did not allege that the daughter was below the age of consent on the indictment, and there is nothing in the nature of the offence of incest as described in the CC to put the respondent on notice that he was in jeopardy of a conviction for sexual assault or sexual interference  An accused is entitled to know which amongst those charges available he or she is required to answer  An offence is included if its elements are embraced in the offence charged, or if it is expressly stated to be an included offence in the CC itself. But the offence of incest can be committed without committing sexual assault or sexual interference HELD: Crown cannot add these charges [3] THE VALIDITY OF THE CHARGE

Joinder and Severance - Can have a joinder and severance of charges Content of Charges - Must be sufficiently detailed: s 581(3). - The purpose is of each count in an indictment is to put the accused on notice of the case to meet - There are two interrelated rules: s 581(3) (insufficient detail) and the surplusage rule (excessive detail) Remedies for a Defective Charge - 3 possibilities: (1) So flawed that the charge is an absolute nullity: The TJ has no jurisdiction to hear the matter, and the charge must be quashed. But the Crown can lay a new charge (2) Charge might be flawed, but not so flawed that it is a nullity: TJ is to AMEND the charge. Grant an adjournment in order to remedy the prejudice [Note: a charge will only be quashed if the prejudice caused by the amending cannot be remedied by an adjournment] (3) The remedies set out in s 601 - Accused may also seek particulars

THE ADVERSARIAL PROCEEDING
[1] THE ADVERSARIAL PROCESS

(a) The presumption of innocence and the ultimate standard of proof - An accused is presumed to be innocent: s 11(d) Charter. The Crown must prove guilt BRD: R v Lifchus: BRD does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt. More is required than proof that the accused is probably guilty. It must not be based upon sympathy or prejudice. Rather, it is based on common sense; it is logically derived from the evidence or absence of evidence. A jury charge that includes these considerations will be a valid one. There is no magic incantation (b) Other burdens - Prima facie case: For directed verdicts, and to be able to pass through the preliminary inquiry stage, the defence and the Crown, respectively, must show that there is a prima facie case. The test is whether there is any evidence upon which a reasonable trier of fact, properly instructed, could convict (Arcuri). In Arcuri, a complicated situation arose, because the evidence was entirely circumstantial. The test (above) applies in this context as well. But the nature of the judge’s takes varies according to the type of evidence that the Crown has advanced.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). For circumstantial evidence, the judge is required to determine what reasonable inferences can be made (i.e. whether elements of offence may be reasonably inferred from evidence). This requires limited weighing, i.e., not entitled to ask whether accused is guilty. The judge only asks whether the evidence, IF BELIEVED, could reasonably support an inference of guilt - Evidential burden for putting forward defences: R v Cinous (In criminal cases, the accused may have an evidential burden where she seeks to rely upon positive defences, like self defence; “air of reality test”): The correct approach to the air of reality test is well established: the test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit (assuming the evidence to be true); in other words, a defence should be put to a jury if and only if there is an evidential foundation for it. Whether there is an air of reality to a defence is a question of law. Two principles derive from this test: (1) a judge must put to the jury all defences that arise on the facts which have an air of reality (2) they must keep from the jury defences lacking an evidential foundation. In applying the test, look at the totality of the evidence, and the purpose is not aimed at establishing the substantive elements of the defence R v Fontaine (Putting in play “reverse onus” defences just requires evidential, not persuasive burden): In Stone, it appeared that the accused needed to discharge a persuasive burden before the jury could even hear the defence of non-mental disorder automatism. In Fontaine, the Court altered this. It was held that all the accused has to do is put forward SOME evidence capable of supporting the defence. - Burden to rebut a presumption: There are numerous rules of evidence called “presumptions” that operate to assign burdens of proof on the accused. A presumption directs judges/jury to assume that a fact is true (known as the presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact), unless the accused can rebut the presumed fact according to the assigned standard of proof. “Mandatory presumptions” can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact follows from the basic fact. A presumption can be recognized as a “mandatory presumption” because the legal rule raising the presumption will use the term “evidence to the contrary” to describe the burden of rebuttal. A presumption will be interpreted as a mandatory presumption where it fails to set out the required standard of rebuttal. Other presumptions operate as “reverse onus provisions”, deeming the presumed fact to exist where the Crown proves the basic fact, unless the accused disproves the presumed fact on a balance of probabilities. In criminal cases, legal presumptions are often in tension with the presumption of innocence. A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact violates the presumption of innocence. If an accused bears the burden of disproving an element of the offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue (R v Oakes) (c) The neutral impartial trier R v Gunning:  It is a basic principle of law that, on a trial by judge and jury, it is for the judge to direct the jury on the law and to assist the jury in their consideration of the facts, but it is for the jury, and the jury alone, to decide whether, on the facts, the offence has been proven. It is of fundamental importance to keep these functions separate.  The trial judge also erred by failing to instruct the jury on the provisions of s. 41 of the Criminal Code, R.S.C. 1985, c. C 46, in respect of the defence of house or property R v Hamilton: FACTS: H and M were charged with importing cocaine. Both were black single mothers. M was not a Canadian citizen and faced risk of deportation. At the sentencing hearings conducted by Justice Hill, extensive social context evidence concerning poverty, gender bias and systemic racism was filed, and the judge provided 700 pages of materials. Based on this evidence, the judge concluded that the women should not receive imprisonment, but should receive conditional sentences. The Ontario CoA commented on the inappropriateness of the judges decision. REASONING:

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - Judge made several findings of “fact” which were not supported by evidence (e.g., the respondents were paid minimal amounts and used those amounts to provide the bare necessities for their children) - The respondents didn’t offer an explanation/description of their involvement in the crimes apart from H’s indication that she acted out of financial need. The judge had no indication of who may have hired them, what compensation they received or what would happen to their children if they went to jail. - **Judge did not purport to base his findings of fact on any material that actually related to these respondents. Instead, he relied on his experiences in sentencing other individuals who couriered cocaine from Jamaica, and applied those generalizations to the respondents. While a judge is permitted to use common sense and wisdom gained from personal experience in judging the trustworthiness of a particular witness, the judge must avoid judging the credibility on the basis of generalizations or upon matters that were not in evidence, Cory J said in R v S (R.D.). - **R v S (R.D.) draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context, and the findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper, the former is not. (d) The role of the prosecutor The prosecutor is an advocate but also a quasi judicial officer, and so must make decisions in best interests of justice and larger public interest, including accused R v Cook: The Crown cannot adopt a purely adversarial role towards the defence, given its special function in ensuring that justice is served, but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability. Part of this discretion involves the choice of which witnesses to call. Given the strong preference this Court has shown for deferring to the Crown’s discretionary authority, it would take a strong opposing rationale to warrant the creation of a duty which so clearly impedes it. The accused is not “ambushed” by the fact that a given witness is not called; any existing unfairness can be resolved through the disclosure process and the accused’s ability to call the witness. The trial judge did not err in failing to inquire into why the Crown chose not to call the victim. The onus to prove the Crown’s misconduct lies upon the accused. Similarly, a finding of an abuse of process or “oblique motive” is only available where the accused can establish such conduct on a balance of probabilities Krieger v Law Society of Alberta: Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Because Crown prosecutors must be members of the Law Society, they are subject to the Law Society’s code of professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General had reviewed it from the perspective of an employer. A clear distinction exists between prosecutorial discretion and professional conduct, and only the latter can be regulated by the Law Society. Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to this duty constitute a very serious breach of legal ethics. Here, it appears that K failed to disclose relevant information, a violation of his duty, but later offered an explanation which would help to determine if he had acted dishonestly or in bad faith. If so, this would be an ethical breach falling within the Law Society’s jurisdiction. The Law Society’s jurisdiction to review K’s failure to disclose relevant evidence to the accused is limited to examining whether it was an ethical violation. (e) The role of the defence

THE CRIMINAL INVESTIGATION
[1] POLICE POWERS

- Theme throughout: balancing liberty with public security

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). General police powers - Police have broad powers under statute (mainly Criminal Code), and powers at common law. - Statutory powers include powers allowing police to: arrest an accused; compel an accused’s appearance in court via a summons or appearance notice; use force; search suspects; etc [Note: the important ones are covered in the upcoming sections] - Common law powers: (1) Historical c/l powers: a. Search incident to arrest for the purposes of ensuring safety; protection of evidence from destruction, and discovery of evidence (R v Caslake). Then, see R v Golden for strip searches incident to arrest, and the particular requirements that must be met (p 16) b. To enter into a private dwelling in a hot pursuit (allowed – leading case is R v Feeney) (2) New c/l powers can be created – the “ancillary powers” doctrine (see R v Waterfield) (p 17): The SCC has relied on this doctrine to support police power in a number of areas. There are problems with relying on this test, though, as it was not intended to allow the creation of new CL powers. (3) Consent (a final area from which police develop their powers) (4) Default common law powers: Police have the power to do anything that will not result in some remedy being granted to an accused Powers of search and seizure - Other than in powers of arrest, the ability of police offers to interfere with the liberty of individuals is most evident in powers of search and seizure - Note the law in this area attempts to balance individual interests (i.e. liberty) with interests of the state - What is a search? A state investigative technique is or is not a search depending on whether it infringes on a persons reasonable expectation of privacy. - Analyze searches with warrant and without warrant separately (1) Searches with a warrant (a) Searching places with warrant - General search warrant provision is found in s 487 - Must be issued by a justice; justice must be satisfied on reasonable grounds that evidence will be found (which must fall into 4 categories: (i) anything on or in respect of which an offence has been committed; (ii) anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence; (iii) anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant or (iv) offence related property); the search must be related to a “building, receptacle or place”; there must be someone responsible for carrying out the search; - Note that there are some limits to this search warrant power (e.g specificity) (see p 69) - A related provision found in s 489 allows police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by, or were used in, or afford evidence concerning an offence (b) Searching people (DNA warrants): - Warrants for taking blood, saliva etc - Only available for “designated offences” listed in s 487.04 (see p 945 of Code) - See s 487.05 for the requirements to get the warrant - Basic requirements = a provincial court judge (i.e. cannot be a JP) must be satisfied by information on oath that a bodily substance connected with an offence has been found, that a person was a party to the offence, and the DNA analysis of the substance will provide evidence about whether the bodily substance was from that person; judge is required to believe that the issuing of the warrant will be in the bests interests of the administration of justice; etc (see p 72) - Different rules apply when the DNA warrant concerns young people (see p 73)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). (c) Reviewing a warrant: - The Code contains no provisions to review a warrant. But it is possible to challenge the issuance of a warrant by way of Certiorari (used to review the process by which the warrant is used) - The central issue in reviewing a warrant is whether the requirements for its issuance under the Code have been met - The question for the reviewing judge is whether there is evidence upon which the issuing judge could have decided to issue the warrant (R v Garofoli). The actual result of the search is not relevant on review (2) Searches without a warrant - Every warrantless searche is prima facie unreasonable under s 8 of the Charter (i.e. guarantee against unreasonable search and seizure) (Hunter v Southam). - As a result, every warrantless search must be made consistent with minimum Charter standards. - The following is the approach to determine the constitutional validity of the warrantless search: (1) Threshold issue: First, to be a breach of s 8, the individual searched must be determined to have a reasonable expectation of privacy over their person, territory and information (i.e. if there is no reasonable expectation of privacy, there is no search/seizure at all, and therefore no breach of s 8). (a) Look at “entitlement” to privacy – not whether X had, in that case, privacy – i..e the standards of privacy that a person can EXPECT to enjoy in a free and democratic society (Wong) (b) Look at factors in Edwards (looking at “totality of circumstances”) (p 87) (c) Note the three kinds of interests that privacy protects (e.g. personal privacy, territorial privacy, and informational privacy) (Tessling). Note: informational privacy = more difficult to prove. (d) How significant of a right to privacy is this on a sliding scale? (2) Once it has been determined that an individual has a reasonable expectation of privacy, then it follows that the search was a prima facie violation of the accused’s s 8 right. The issue then becomes whether the search itself is reasonable, or was it an intrusion, in light of that expectation of privacy). Here, the nature of the accused’s reasonable expectation of privacy is also a background factor in determining how reasonable the search is (the higher the level of privacy expected, the more difficult it will be to determine that the search was reasonable, e.g. a person has greater privacy when the search involves a bodily cavity as opposed to the trunk of their car; or in the situation of a search incident to arrest – heavy state interests). Reasonableness of the search is generally determined by the Collins factors – have they been met? (a) Is the warrantless search authorized by law: (i) Statute? (e.g. warrantless searches are authorized by s 487.11 (in relation to the s 487 search warrant power) (ii) C/L? (i.e. search incident to arrest; search during investigative detention; exigent Circumstances. Here, if you are saying that there is a search incident to arrest, you would have to go through the elements identified in the book, i.e., you would have to establish that: the arrest was lawful; the search was truly incidental to that arrest and that the search was conducted in a reasonable manner) (iii) Consent? (b) Is the law itself reasonable? (c) Is the manner in which the search is carried out reasonable? - NOTE: There are variations on the Hunter v Southam standard. Searches under an administrative scheme and searches of press offices have different rules (see p 111)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - NOTE Other investigative powers, ie., general warrants (s 487.01) (which have broader warrant power than s 487) Powers of Detention at the Investigative Stage (a) Definition of detention - S 10(b) gives rights to people who are “detained”, e.g. right to counsel. The issue is whether someone has been detained. One troubling context is police questioning – when does this qualify as a detention and therefore give the detainee s 10(b) rights? (b) Common law powers of detention - Some powers of detention exist by statute. The ability to make breathalyser demands and routine traffic stops, and some aspects of customs searches are all legislatively created detentions. Common law detentions are more controversial (e.g. Dedman case upheld RIDE program under Waterfield test as a valid form of detention) (i) Investigative detention (Mann test): Reasonable grounds for officer’s suspicion that individual is implicated in criminal activity under investigation. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances. (ii) Police roadblocks Ability to break the law: s 25.1

TAKING CONTROL OVER THE ACCUSED: Arrest, Compelling Appearance w/out Arrest, and Bail
[1] THE ARREST

- The police have specified powers to arrest individuals. So do non-police officers. - The common theme of the relevant legal provisions is that arrest – taking physical control over the subject – is to be used as a last resort when other measures available for ensuring good conduct and attendance before the criminal justice process are not practical or desirable - The least intrusive modes of securing attendance include the appearance notice, the promise to appear and the summons. These will be discussed below, and it will be identified who can issue these, and under what authority Introduction - Arrest is only one method to compel appearance of an accused before a court - There are 2 other ones, summons and appearance notice (less intrusive). Similar to powers of search and seizure, Part XVI of the Coe is aimed at balancing legitimate state interests in prosecuting crime against individual freedom - Judicial confirmation must occur before or after the arrest. A police officer, in principle, cannot unilaterally compel the appearance of an accused in court. That decision must, at some point, be confirmed by a judicial officer, typically JPs. Confirmation can occur either before or after arrest. - Must give notice to arresting person of reasons for arrest: s 10(a) Charter; s 29 - The least intrusive way is where a police officer can show a justice that there are reasonable grounds to believe that a persons has committed an offence, and consequently obtains a summons requiring the accused to appear in court on a specific date: s 507(1)(b). - Alternatively, the officer can first encounter a person on the street committing an offence and then require that person to appear by means of an appearance notice, which must be confirmed by a justice: ss 501, 505 and 508(1)(b) - The most intrusive method is by taking physical control of the person (by way of arrest), either after judicial authorization or before (this is the focus here) - What is an arrest? An arrest consists of words of arrest accompanied either by touching of the person with a view to detention, or by the person submitting to the arrest (R v Whitfield)

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - Break down the situations into arrest with warrant and without warrant: Arrest with a warrant - A warrant can be issued only after an information is layed: see s 507 for indictable offences and s 795 for summary offences. - Then, a justice, who signs off on the information, can either issue a summons or warrant requiring the accused to attend before a justice to answer the charge. - A summons MUST be issued instead of a warrant, unless to do so would not be in the interests of the public: s 507. - Must give notice to arresting person of reasons for arrest: s 10(a) Charter - There are some other, less important rules for effecting the warrant Arrest without warrant - See s 494 and 495  s 494 [Applies to any one (and is regarded as the citizens arrest power]: - Anyone may arrest someone they find committing an indictable offence - Anyone may arrest someone they find fleeing from authorities, if they reasonably believe an indictable offence was committed - s 494(2) applies to property owners’ arrest power  s 495 [Applies to police officers] (1) (a) Peace officer may arrest anyone who has committed an indictable offence or who, on reasonable grounds, he believes has committed, or is about to commit, an indictable offence (b) Peace officer may arrest anyone he finds committing a criminal offence (i.e. “apparently committing”: R v Biron) (c) Peace may arrest a person if he reasonably believes that a warrant exists for the person’s arrest (2) This section adopts a principle of restraint; essentially says that for minor offences, officers are directed not to arrest simply because an arrest power exists, rather to consider other factors as well. The officer may arrest only to: (i) establish identity of accused; (ii) secure or preserve evidence of or relating to the offence; (iii) prevent the continuation or repetition of an offence. Alternatively, officer may arrest if it’s evident accused won’t appear in court (3) Shows that the principle of restraint adopted in (2) is only a guideline  [Supporting powers] - Use of force permitted in certain circumstances (s 25(1)); use of force likely to cause death or GBH permitted in certain circumstances (s 25(4)); special rules apply when entering a home to make an arrest (s 529) etc - E.g. officer is justified in using as much force as necessary when making an arrest, provided that there is reasonable grounds to use that much force Rights arising on arrest (1) Statutory protections: - s 497 calls for officer who has arrested a person for one of the offences listed in s 495(2)(a), (b) or (c) (basically less serious, summary conviction or hybrid conviction offences) to release that person on an appearance notice or summons, unless grounds similar to those in sections 495(2)(d) or (e) apply (i.e. believes that need to get ID; secure evidence; won’t show in court etc) - Where the offender is NOT released, s 503 comes into play; accused is to be brought before a JP to consider the issue of release (must occur without unreasonable delay, and in any event, within 24 hours); “without unreasonable delay” is the key factor here. Failure to do so may result in an arbitrary detention under s 9 of the Charter (2) Charter rights:

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - s 10 of the Charter creates specific guarantees arising on arrest: (a) accused must be informed promptly of the reasons for arrest; (b) must be informed of right to counsel Other Code arrest powers - Several Code provisions which authorize arrest in order to provide a measure of compulsion to the judicial process (e.g. if you fail to comply with finger printing requirements) [2] COMPELLING APPEARANCE WITHOUT ARREST

- There are different ways to compel appearance, without arrest, either pre- or post-charge - Arrest is a power of last resort Compelling appearance when charges have NOT been laid (i.e. pre-charge) - If a peace officer decides that a person should be prosecuted, there are a number of ways to compel that person to attend court BEFORE an information is laid and he is actually charged; most obvious example is an arrest without warrant - But the Code also provides that a person may be required to attend court by means of an appearance notice, a promise to appear or a recognizance - Note s 495(2) (discussed above in arrest section), which suggests that, for less serious offences, an officer should not necessarily use arrest powers. The provision indicates, implicitly, that the officer issue an appearance notice instead, unless there is good reason not to. So, if officer decides NOT to arrest, then they may issue an appearance notice: s 495(2) - Even if an officer has arrested a person, the officer can decide afterword, under s 497(1), to release that person w/ the intention to compel her appearance by means of a summons or appearance notice. - The “officer in charge”, under s 498, is also directed to prefer releasing the accused (officer in charge has broader powers; can release with more restrictive conditions, including a recognizance) - The release provisions, however, are not mandatory, and are merely guidelines (i.e. an officer who fails to comply with the sections is still complying with their duty) - Note that before accused’s first appearance an information must be laid before a justice: s 505 Compelling appearance when charges have been laid (i.e. post-charge) - After the laying of the information is completed, the justice will issue process in the form of either a summons or a warrant for the arrest of the accused (if the charge is endorsed) - A summons is a document issued by the court commanding the accused to attend court at a specified time and place - The choice b/w summons or arrest warrant lies in the discretion of the justice. - S 507(4), though, directs the justice to issue a summons UNLESS there are reasonable grounds to believe that a warrant is necessary in the “public interest”. [3] THE BAIL HEARING

- Where an individual is arrested, he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial General scheme: Release by justice - Assumption that accused should be released pending trial and with few restrictions as possible - s 515(1) directs that the justice shall order that the accused is released on an undertaking without conditions UNLESS the Crow shows cause as to why something more restrictive is justified

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - s 515(2): Where a judge doesn’t order an outright release under s 515, he shall, UNLESS THE CROWN SHOWS CAUSE AS TO WHY DETENTION IS JUSTIFIED, the judge must release the accused in one of the ways listed in that section (a)-(e). A judge cannot make an order under (b) to (e) of s 515(2) unless prosecutor shows cause as to why an order under the immediately preceding paragraph would be inadequate: s 515(3) - s 514(4) – (4.3): Set out various types of conditions that MAY or MUST be imposed when an order for release is made under s 515(2) [Objective is to ensure accused attends court or safety of community] - SUMMARY: If an “order of release (without conditions)” is not made by the judge (s 515(1)), there are two options, each for which the Crown must show cause: (a) Show cause why detention is necessary (see below); (b) or if that fails, try and show cause as to why a more serious condition of release should be imposed. General scheme: Crown seeking continued detention - s 515(10) specifies 3 grounds on which continued detention of an accused may be ordered: (1) detention is necessary to ensure accused’s attendance in court (2) detention is necessary to ensure for the protection or safety of the public (3) detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances [and there are a few listed] (e.g. apparent strength of prosecutions case, gravity of offence, circumstances surrounding commission of offence; et] (see R v Hall for test to apply) Adjournment - The justice, on the application of the prosecutor, can adjourn the bail hearing by up to 3 days without the consent of the accused: s 516 Exceptions to the general bail scheme - s 515(6): Lists a number of types of indictable offences which lead to a reverse onus – i.e. accused must show cause why he is to be released. If the accused is ordered to be released, any of the ordinary conditions apply - s 515(11) + s 522 (re: s 469 offences): (i) What are s 469 offences? (see p 885 of Code); (ii) If it’s a 469 offence, then whay? And, again a reverse onus applies. If the accused is order to be released, any of the ordinary conditions apply. Reviewing order - A decision made by a justice concerning release or detention may be reviewed by a judge upon application of the accused or the prosecution: s 520/521 R v Hall FACTS: David Scott Hall was charged with the murder of a woman in a high profile case. He applied for bail pending trial. The judge denied the application--not for reasons of ensuring appearance in court or protecting the public--but in order "to maintain confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason. Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just cause" under section 11(e) of the Charter ISSUE: The issue in this case is whether Bolan J. erred in denying bail on the basis that this was necessary “to maintain confidence in the administration of justice”. REASONING:  “I agree that the opening phrase of s. 515(10)(c), read as conferring a broad discretion to deny bail for “just cause”, is unconstitutional. However, the balance of s. 515(10)(c), which permits denial of bail where necessary to maintain confidence in the administration of justice, plays a vital role in preserving the bail system and the good administration of justice, and is neither unduly vague nor overbroad”  Function of para (c): To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public’s confidence in the administration of justice. Without public confidence, the bail system and the justice system generally stand compromised. Bail denial to maintain confidence in the administration of justice is not a mere “catch-all” for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).  Para (c) is not unconstitutionally vague or overbroad: the ground based on maintaining confidence in the administration of justice is more narrowly defined than the “public interest” standard in Morale  Another question is whether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament has hedged this provision for bail with important safeguards. The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice HELD: Para (c) is constitutionally valid

GETTING READY FOR TRIAL: Disclosure and Prelim Inquiries
[1] DISCLOSURE

- A key right of the accused, and an important obligation on the Crown, is to make full disclosure of the fruits of the investigation to the accused - All the fruits of the investigation are to be disclosed save what is clearly irrelevant or privileged - Disclosure is to be made before the accused is called upon to elect his mode of trial for s 536 indictable offences - R v Stinchcombe established the right of disclosure for an accused, and the case also established various rules that apply to disclosure Content of the right to disclosure - Evidence, if relevant, must be disclosed by Crown, whether inculpatory or exculpatory - Evidence is relevant if it is of some use ot the defence (R v Egger) - Disclosure must be made prior to election or plea - It is a continuing duty to disclose - But the right isn’t absolute – e.g. need not produce privileged or irrelevant material - What if disclosure isn’t made properly? R v Dixon set out a 3 part test for determining whether and, if so, what remedy would be available if there is unjustified non-disclosure (see p 207) - Another issue is privileged information (of which there are 3 general categories – informer privilege, solicitor-client privilege and privilege in counselling records). Conflicting protections: disclosure and privileged information - The following topics are covered in this part: (1) Information privilege; (2) Solicitor-client privilege; (3) Counselling records; R v Stinchcombe FACTS: The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. After the preliminary inquiry but prior to trial, the witness was interviewed by an RCMP officer and a tape-recorded statement was taken. Later, during the course of the trial, the witness was again interviewed by a police officer and a written statement taken. Defence counsel was informed of the existence but not of the content of the statements. His requests for disclosure were refused. During the trial defence counsel learned conclusively that the witness would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the contents of the statements to the defence. The trial judge dismissed the application. The trial proceeded and the accused was convicted of breach of trust and fraud. Conditional stays were entered with respect to the theft counts. The Court of Appeal affirmed the convictions without giving reasons.

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). REASONING:  Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied.  Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case.  Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial.  Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. HELD: Crown counsel was not justified in refusing disclosure here on the ground that the witness was not worthy of credit: whether the witness is credible is for the trial judge to determine after hearing the evidence. The trial judge ought to have examined the statements. Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced. [2] PRELIMINARY INQUIRIES

Background - Until 2004, the preliminary inquiry was understood chiefly as a test of the sufficiency of the prosecution’s case for trial - Since 2004, amendments to the Code have altered the nature of the preliminary inquiry and it can no longer be said that its primary function is to test the sufficiency of the prosecution case as a whole - The inquiry will only be conduct with regard to the issues and witnesses that are specified in advance: s 536.3 - The preliminary inquiry is now a limited examination of the sufficiency of the prosecution case with regard to the specific issues and the evidence of specific witnesses Jurisdiction - The authority of a justice to conduct a preliminary inquiry is strictly statutory under Part XVIII of the Code Scope - The scope of the inquiry is defined by s 535, which directs the judge to inquire into the charge of any indictable offence or any other indictable offence in respect o the same transaction disclosed by the evidence - The Code expressly allows the accused to call evidence and this can include exculpatory evidence on a matter of defence: s 541. Committal - s 548 directs the justice or judge at the preliminary inquiry to commit the accused for trial on any indictable offence if the evidence in support of the charge is sufficient. It also requires the accused to be discharged (but this doesn’t mean acquitted) if the evidence is insufficient. Everything turns on the word “sufficient”. - In Shephard, the SCC stated that the test of sufficiency at the prelim inquiry is whether a reasonable jury, properly instructed, could find the charge proved BRD. - One uncertainty is the issue of whether the judge should asses the probative value of the evidence - Criterion of completeness: Prosecution must lead evidence corresponding to each of the elements (this is uncontroversial) - Criterion of weight: Several cases suggest it is not the role of the judge to weigh evidence; e.g. judge cannot assess credibility of witnesses (Arcuri). But where the prosecution’s case is circumstantial evidence, a limited weighing of evidence is permitted, and requires the judge to consider whether, if the evidence is believed, it could support inferences in favour of the prosecution

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - In short, ask whether the essential elements of the offence can be proved BRD in the eyes of a reasonable trier of fact

PRINCIPLES AND LAW RELATED TO SENTENCING
NOTE: Before beginning a sentencing question, first look at what offence for which the offender is being sentenced: Is there a minimum sentence? Is there a maximum? These points will be important for the applicability of some of the sentences. [1] GENERAL PRINCIPLES OF SENTENCING

- Mostly codified in the Criminal Code S S S S 718: 718.01: 718.1: 718.2: Lists objectives of sentencing, including denunciation, deterrence, rehabilitation, reparation etc Where children victim of abuse and under 18, then primary weight to denunciation and deterrence objectives Proportionality principle enforced (a fundamental principle of sentencing) Other sentencing principles court MUST take into account: (a) Aggravating and mitigating factors (b) If Aboriginal offender, then imprisonment last resort

R v C.A.M (Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit)  The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment  The Court of Appeal erred in applying as a principle of sentencing that fixed term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances  Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence  The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit  It was open to the sentencing judge to reasonably conclude that the particular blend of traditional sentencing goals required a sentence of 25 years in this instance R v Priest (Sets out sentencing principles re: (1) appropriate sentences where crime committed in an area of high incidence of the relevant crime; (2) first time offenders; (3) proportionality of sentences)  Break and enter, w/out violence or vandalism was the offence, committed in an area of unusually high incidence of the crime  The principles to be applied where there appears to be an unusually high incidence of a particular crime in the community have been set down by this court. It is ONE factor to take into account, and can’t be determinative of the sentence  The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation, or a very short term of imprisonment followed by a term of probation. Court

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). should consider all other dispositions before imposing a custodial sentence. S 718(c) instructs that separation of offenders from society is an appropriate objective of sentencing “WHERE NECESSARY”. S 718.2(d) directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.  Proportionality is a fundamental principle of sentencing. The sentence imposed by the trial judge in this case was wholly disproportionate to what occurred. This was a break-in of non-residential premises. There were a number of mitigating factors that were completely ignored by the trial judge. The appellant had no prior record; he confessed to the offence; he returned all of the stolen goods; and he pled guilty at an early opportunity. The trial judge was required to give effect to these mitigating factors in imposing sentence on this appellant. While I hesitate to label the sentence grossly disproportionate, it approaches that standard. It was well above the threshold of the "clearly unreasonable" or "demonstrably unfit" sentence requiring intervention by this court  For the foregoing reasons, we allowed the appeal and reduced the sentence to time served (approximately five weeks) and one year probation on the statutory terms and on the special terms that the appellant report forthwith to a probation officer and thereafter once per month if required and that he make reasonable efforts to seek and maintain employment or education. R v Boucher ((1) Appropriate sentence for cases involving domestic violence; (2) Aggravating factor of “planned and persistent” conduct)  Attempted murder was the offence  Principles of denunciation and deterrence are of paramount significance in cases involving domestic violence  While it is true that the complainant did not suffer any physical injuries, in the context of an attempted murder, the absence of physical injuries is a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate  In addition to the aggravating feature of a domestic context, there is an additional aggravating factor present in this case that appears to have been present in some, but not all, of the authorities relied on by the Crown, namely, the planned and persistent nature of the respondent’s conduct  Despite the foregoing conclusions, I would not interfere at this time with the sentence that was imposed by the trial judge, other than to vary the period of probation from two years to three years. In all of the circumstances, I do not consider that it would be in the interests of justice to re-incarcerate the appellant at this time. [2] [a] TYPES OF SENTENCES Incarceration

S 718(c): Imprisonment should be used “where necessary” (as pointed out in R v Priest) S 718.2(e): Imprisonment should be used as a sentence of last resort, particularly w/ Aboriginal offenders Use case law to add more discussion [b] Conditional Sentence of Imprisonment

S 742.1: This section authorizes service of a sentence of imprisonment in the community in certain circumstances. Some offenders are excluded (e.g. those convicted of a serious personal injury offence: s 752, or an offence punishable by a minimum term of imprisonment). To impose this sentence, the following requirements must be met: (i) the sentence of imprisonment is imposed for less than 2 years; (ii) the service of the sentence in the community wouldn’t endanger the safety of the community; (iii) the sentence would be consistent with the fundamental purpose and principles of sentencing S 742.3: (1) Outlines the compulsory conditions of such an order; (2) Outlines optional conditions

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). R v Proulx (This case establishes the following: (1) A conditional sentence, unlike probation, is aimed at both puniative AND rehabilitative aspects; probation is aimed at a rehabilitative sentence; (2) Sets out the process a judge must go through when imposing this sentence; (3) General principles re: conditional sentences)  The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm (1)  A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception (2)  Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.  Interpreting the requirement that judge must impose a sentence of imprisonment of less than 2 years: (1) In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate; (2) Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.  The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence  Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future (3)  Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community  A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances  No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence [c] Probation and Community Service

S 731: If person convicted of an offence, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding the offence, a prohibition order may be made (a) if no minimum punishment is prescribed OR (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding 2 years S 731.1: Optional and mandatory conditions to be imposed R v Ziatas

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). [d] [e] [f] Fines: s 734

Absolute or Conditional discharge: s 730(1) Recognizance Orders

An information can be laid before a justice where a person fears that another person will cause harm to them, a partner, child etc. A justice, if satisfied on the evidence, can order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour

[g]

Restitution

S 738: Where an offender is convicted (or discharged), the court imposing sentence or discharging may, IN ADDITION TO ANY OTHER MEASURE imposed on the offender, order that the offender make restitution to another (and then the section lists a number of scenarios where restitution can be ordered) (e.g. payments for damaged property; and payments to victim who suffered pecuniary loss as a result of psychological or bodily harm delivered by the convicted) [h] Victim Surcharges: s 737(1)

Where D is convicted or discharged of an offence, a victim surcharge may be imposed upon him/her, in addition to any other punishment. Consideration is taken into account whether or not such a penalty would result in undue hardship to the convicted [i] Sentencing Aboriginal Offenders

S 718.2(e) requires that all available sanctions other than imprisonment be first considered with all offenders, with “particular attention to the circumstances of aboriginal offenders” R v Gladue  Overreliance upon incarceration is a particular concern in the sentencing of aboriginal Canadians  The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.  The Court identified 2 unique circumstances of Aboriginal offenders: (1) The systemic factors which often play a part in bringing the specific offender before the courts; and - As a practical matter, the Court does not require each Aboriginal offender to provide the sentencing judge with a history of the discrimination faced by Aboriginal people in Canada. Rather, the Court states that judges must take judicial notice of these factors - It is important to note that the Court states that the provisions of s. 718.2. (e) apply to all Aboriginal offenders. It does not matter if the person is a status or non-status Indian, Metis or Inuit person - the section applies equally to all (para 90). Similarly, it does not matter if the person lives in an urban area and/or has been totally estranged from his or her culture - the section still must be applied. The provisions of the section must be applied in all cases where the offender identifies him or herself as an Aboriginal person and provides some evidence as to how their Aboriginal identity has had a part to play in understanding why they are before the court. (2) The types of sentencing approaches that might be appropriate to the offender because of his or her Aboriginal heritage

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - Restorative justice approach is relevant when sentencing aboriginal offenders - The Court broadly terms these approaches “restorative justice” approaches. It describes restorative justice as: “an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime” - The Court makes it clear that a sentence that is intended to address restorative justice concerns should not be seen as necessarily ‘lighter’ than a sentence of imprisonment. The Court also cites articles that suggest that in some circumstances, a restorative justice sentence might impose greater burdens on an offender than jail, particularly if there are probation terms incorporated into the sentence - Community based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. - The Court makes it clear that the fact that an offender is an Aboriginal person will not automatically result in a non-prison sentence. The Court also indicates that the more violent the offence, the more likely that the sentence will involve imprisonment, although the Court indicates that perhaps the term of imprisonment might be less in the case of an Aboriginal offender as opposed to a non-Aboriginal offender [k] Parole

743.6: Where an offender is sentenced to a term of 2 years of imprisonment or more on conviction of an offence set out in Schedule I or II that were prosecuted by way of indictment, the court may order that the portion of the sentence that must be served before the offender may be released on full parole is ½ of the sentence, or ten years, whichever less (having regard to the circumstances of the offence, characteristics of the accused etc)

APPEALS
Appeals of indictable offences (a) Appeals by the accused - s 675(1)(a) lists the grounds of appeal - s 686(1)(a) lists grounds on which court of appeal can grant appeal: (i) verdict set aside b/c unreasonable or cannot be supported by the evidence; (ii) wrong decision on a question of law; (iii) on any ground that there is a miscarriage of justice - s 686(1)(b) (follows s 686(1)(a): this section sets out grounds on which an appeal can be dismissed (other than dismissing if none of the grounds for “granting” are made out) [See statute for how the sections in (a) relate] - It has been suggested that the underlying theory of s 686(1)(a) is miscarriages of justice (R v Morrisey) - See p 355 for options after granting appeal under s 686(1)(a) - Note: appeal can be in relation to sentencing too Standard of review - Varies depending on ground of appeal - Pure questions of law, standard of review is correctness (so appellate court can substitute opinion); questions of fact should not be overturned in the absence of a “palpable and overriding error”’; etc Unreasonable verdicts - Ask whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered (R v Yebes). Could the TJ have reached its conclusion on the evidence before it? - Works in judge or jury trials; harder in jury ones though

For tutoring on this subject by the person who created these notes, e-mail andrew.captan@utoronto.ca . He successfully completed all of the NCA requirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors). - What about overturning decision if TJ’s reasoning process was unreasonable? Yes (Beaudry) Errors of law and miscarriages of justice - These are similar – indeed they are all similar, in that miscarriage of justice underpins all of them - No requirement that verdict was not supported by evidence - An “error of law” is any decision that was erroneous interpretation or application of the law (R v Khan) (note that the curative provision applies to this ground) (e.g of error of law review: where there is a air of reality to a defence and TJ instructs jury there is no air of reality) - Miscarriage of justice can either be substantive or procedural (e.g. if the error at trial is one of mixed fact and law, e.g. ineffective legal counsel The curative provision - Section 686(1)(b)(iii) allows a court of appeal to dismiss an appeal despite an error of law provided no “substantial wrong or miscarriage of justice has occurred” - see test on p 362 Procedural irregularities (b) Appeal by Crown

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