CRIMINAL RULES Oakes when law breaches Charter – p. 2 of Crim outline, p. 2 of short Con outlines I.
Actus Reus & Mens Rea Overview: a. Actus Reus: The act that must be performed, or omission that is proscribed, the circumstances or conditions in which the act must occur, and any consequence that must be caused by the act. b. Mens Rea: The mental elements normally describe the actual or “subjective” state of mind of the accused such as intent, or planning and premeditation, or recklessness, or knowledge, or willful blindness.
I I.
ACTUS REUS & Offenses a. Manual Possession Offense i. RULE: Personal possession = accused person exercises (1) physical control over a prohibited
object ii. With fu full knowledge of its character , and iii. Where there there is some evidence to to show the accused accused person person took custody custody of the object object willingly willingly with intent (mental element) to deal with it in some prohibited manner. b. Joint Possession/Constructive Joint Possession Offense i. RULE: Joint Possession s. 4(3)(b) must be: 1. Knowledge Knowledge of prohibited prohibited item item (proved (proved by direct/circum direct/circumstantial stantial evidence) 2. Cons onsent, nt, and and 3. Measure Measure of control control on the part of of the person deemed to be in in possession. possession. c.
Consent Consent – Principle: Principle: Absence Absence of consent consent by victim is importan importantt AR condition condition that must must be present for offense offense to occur: i. Assault Fist Fight: Absence of consent is not an element of the AR in cases where adults
intentionally apply force causing serious hurt or non-trivial bodily harm to each other. Consent is vitiated (legal validity is destroyed) in fist fight situations. ii. Sexual Assault: C omplainant to provide actual active consent throughout every phase of the sexual activity. Whether the complainant was subjectively consenting in her mind her mind . iii. Fraud nullifying Consent: All that is required is a fraud and a casual connection between that fraud and the submission or failure to resist d. Causation Causation – Conse Consequen quence ce that must must occur occur before before offense offense is complete complete:: i. Criminal Negligence Causing Death Offense: 2 part test – Factual + Legal Causation: contributing cause of the 1. Factual Causation: Was the conduct of the accused a significant contributing prohibited consequence? consequence? BUT FOR 2. Legal Causation: Determining who among those who have factually contributed to an event should be held legally responsible for that event. ii. ii. Homi Homici cide de Offe Offens nse: e: 1. Whether ∆’s actions are a significant cause of the ∏’s death. The ∆ must be the cause of death beyond de minimus st iii. 1 Degree Murder Offense: 1. Whether ∆’s actions are a substantial cause of death – which is higher degree of legal causation. ca use of a iv. Intervening Causes: An intervening, independent act by 3 rd party that is a more direct cause victim's death than the prior act of ∆ may sever the legal causal connection between that victim's death and the prior act of ∆. v. Contributory Negligence/Improper Medical Treatment: Don’t negate causation/crim responsibility. e.
Ommission Ommissionss – Offen Offense se committ committed ed by failing failing to to act. act. Test: Test: i. Offence Offence must must contemplat contemplatee guilt guilt for omission omissions, s, ii. ∆ must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and 1. If no pre-existing relationship, to find a legal duty to act, an Undertaking must be established:
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a. Clearly made b. With binding binding intent/commitment iii. Omission Omission in quest question ion must must be a failure failure to fulfill fulfill that legal legal duty. duty. I I I.
SUBJECTIVE MENS REA a. Intent i. Assa Assaul ultt Off Offen ense se::
1. Intenti Intention on to apply apply force, force, directl directly y or indirect indirectly, ly, 2. To anot anothe herr pers person on.. “Willfully ” & Obstructing Justice: ii. “Willfully” 1. “Willfully” - Act is done for the purpose of obstructing the course of justice. a. Purpose Purposely ly bringing bringing about about the the conse conseque quence nce b. w/ Knowledge Knowledge that that consequence consequence will will result result iii. Homicide Offense (incl Murder) 1. ∆ knows knows act act done done for for a unlaw unlawful ful object object;; 2. Did anyt anythi hin ng; 3. That he knew was likely to cause the death of a human being – subjective foresight of death; 4. Caused Caused the death death of of a human human being being - substa substantia ntially lly contrib contributed. uted.
IV.
SUBJECTIVE MENS REA W/ OBJECTIVE FEATURES a. Reck Reckle less ssne ness ss – Prin Princi cipl ple: e: i. ∆ acts in spite of actually & personally foreseeing the risk that if they do act, ii. Prohibite Prohibited d conseque consequence nce will will be broug brought ht about. about.
b. Willful Blindness – Principle: Subjective - ∆ personally sees the risk of a fact, but then willfully avoids confirmation so as to be able to deny knowledge. Suspicious was aroused – not should have been aroused. i. Receiv Receiving ing Stol Stolen en Prope Property rty Offe Offense nse:: 1. ∆ knew that the property was stolen 2. Use willful blindness only where it can almost be said that the ∆ actually knew blindness will suffice because it is the equivalent of actual knowledge. 3. Willful blindness c. Purp Purpos osee – Pri Princ ncip iple le:: i. Intent and Knowledge. to do prohibited prohibited act. 1. INTENT: ∆ intended to 2. KNOWLEDGE: Aider must know that the principal intends to commit the crime. Can use willful blindness to impute knowledge. d. Frau Fraud d Off Offeense: se: ii. RULE AR: 1. Proof Proof of a prohibit prohibited ed act act (deceit (deceit,, falsehoo falsehood) d) and, and, 2. Proof of deprivation caused by the prohibited act (actual loss or victim's pecuniary interests at risk) iii. RULE MR: 1. Intentio Intentionally nally committ committed ed the prohibite prohibited d acts (deceit, (deceit, falsehood falsehood,, or other dishonest dishonest act) consequenc es proscribed by the offence (deprivation) (depri vation) 2. Knowing or desiring the consequences 3. Guilty whether he actually intended the deprivation or was reckless as to whether it would occur. e. Sexu Sexual al Assa Assaul ultt Offe Offens nse: e: iv. Intention to touch, and reckl ess of or wilfully wilf ully blind to , a lack of consent, conse nt, and v. Knowing of, or being reckless vi. vi. Sexual Sexual nature nature of the contac contactt 1. Whether the assault is “sexual” is an objective one, viewed in light of all circumstances is sexual assault visible to reasonable p erson.
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in tent or o r purpose of the person may also be a factor in considering whether the conduct is 2. The intent sexual. 3. If the motive of is sexual gratification, will be factor in determining whether the conduct is sexual.
V.
OBJECTIVE MENS REA & True Crimes – standard usually “penal negligence” a. Mans Mansla laug ught hter er Offe Offens nsee i. Conduct causing the death of another person; ii. Forese Foreseeab eabili ility ty of harm, harm, and iii. iii. Fault Fault short short of of intent intention ion to to kill. kill. 1. Fault may consist either: in committing another unlawful act which causes the death, or in criminal negligence. b. Unlawful Act Manslaughter Manslaughter Offense: dangero us (likely to subject person to danger of harm/injury); i. Unlawful act must be objectively dangerous ii. Intent to commit this underlying act iii. Objective Objectiv e foreseeability foreseeabili ty of the risk of bodily harm that is non-trivial 1. ∆ must possess capacity to appreciate the risk flowing from his conduct. c. Criminal Negligence Manslaughter Offense: 1. Unlawful act that exhibits a marked departure from the standards of a reasonable person in all of the circumstances, AND 2. Objective foreseeability of the risk of non-trivial bodily harm a. Capacity Capacit y to appreciate appreci ate the risk flowing from his conduct. d. Dangerous Dangerous Operation Operation of Car Car Causin Causing g Death Death Offence Offence i. ∆ driving dangerously, in light of all the circumstances, and; ii. Whether the manner of driving, viewed on an objective basis, constitutes a marked departure f rom the norm of a reasonable person in circumstances of the ∆. e. Unlawfully Causing Bodily Harm Offense off ence that is objectively dangerous (likely to subject another another person to harm); i. Underlying unlawful offence ii. Intent to commit the underlying offence underlyi ng offence iii. Caused bodily harm to another person as a result of committing that underlying 1. Harm caused must have sufficient causal connection to the underlying offence committed iv. While having objective foresight of bodily harm
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REGULATORY OFFENSES – Presumed to be “Strict Liability” a. Stri Strict ct Liab Liabil ilit ity: y: i. Don’t need need to prove prove MR; the doing doing of the prohibi prohibited ted act prima prima facie imports imports the the offence. offence. ii. Public Welfare Offenses/Provincial Law = traffic infraction, liquor laws, sale of impure food iii. iii. Offen Offense se Langua Language ge = “Cause “Cause”” “Permit “Permit”” iv. Defense of Due Diligence MUST be available: 1. Reasonabl Reasonably y believed believed in a mistaken mistaken set of of facts, facts, OR OR 2. Took all reason reasonable able steps steps to avoid avoid the the particul particular ar event. event. b. Absolute Liability: Liability: i. Denies ∆ the opportunity to put forward a defense of due diligence. Whether the offence falls into this category: ii. The overall overall regula regulatory tory pattern pattern adopte adopted d by the Legisla Legislature ture iii. the subject subject matter matter of the the legislat legislation ion & the import importance ance of the the penalty penalty iv. and the precision of the language used 1. If jail jail time, time, offense offense s. 7 of Charter Charter,, so presume presume Strict Strict Liabili Liability ty
VII.
INCOHATE OFFENSES – No Doubling up a. Aiding & Abetting -Generally: i. Can be convicted for for aiding aiding (physically (physically supporting) supporting) or abetting (encouraging) (encouraging) the the accused to commit the offence. Can be convicted for not only the offences they intended to aid or abet, but also a nother offence, provided that it is a foreseeable outcome of the offence they did intend to aid or abet
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Parties Parties to an Offence 21. (1) Every one is a party to an offence who: ii. Section 21. CC — 1. actu actual ally ly comm commit itss it; it; 2. does or or omits to to do anything anything for for the purpose purpose of aiding aiding any person person to to commit commit it; or 3. abets abets any any pers person on in in commi committi tting ng it. it. iii. iii. Elem Elemen ents ts:: 1. Some active active steps steps must must be be taken taken by by word word or or action action 2. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors: a. Prior knowledge of the principal offender's intention to commit the offence, OR b. Attendance for the purpose purpose of encouragement 3. MR: Must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. “Purpose” = Intent and Knowledge. a. ∆ intended to assist the principal in the commission of the offence, and; b. Aider must know that the perpetrator intends to commit the crime. b. Counseling i. AR: Active inducement of the commission of a criminal offence. ii. MR: Either intended that the offence counseled be committed, OR iii. Knowingly counseled the commission of the offence iv. While aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of ∆’s conduct. c.
VIII VIII.. IX.
Attempt Attempt – Needs Needs same same MR for for underlyin underlying g offense offense attempt attempting ing to commi commit: t: i. MR: Intent to commit the offence in question, and ii. AR: Some step towards the commission of the offence attempted beyond mere acts of preparation: 1. Define Define the the nature nature of the actus actus reus of complete completed d offence. offence. 2. Consider Consider factors factors of of proximity proximity (how (how close close was the the completed completed offen offence?): ce?): Time, Time, location, location, and acts under the control of the accused. iii. The fact that an offence is legally impossible (Factual Impossibility in VA) in the factual circumstances is no defense.
d. Conspiracy: i. AR: Agreement to commit the offence. ii. MR: Intention to agree, and; ( purposee to commit offence in the future; knowledge that the offence iii. Intention to commit the offence ( purpos will occur in the future) iv. Impossibi Impossibility lity of compl completion etion = No No Defense Defense.. Corp Corpor orat atee Lia Liabi bili lity ty – p. p. 14 14 DEFENSES a. Insanity Defense s. 16(1) Incapab le of knowing act was wrong : “Did the accused lack lac k the capacity to rationally ratio nally decide whether whe ther i. Incapable the act is right or wrong and hence to make a rational choice about whether to do it or not?” Incapab le of appreciating the nature & quality of the act: If ∆’s appreciation extends past knowledge ii. Incapable of the act (e.g. (e. g. choking) to appreciation of the consequences, impact, and result (e.g. that this choking will result in unlawful murder) ∆ will be found to have appreciated the nature and quality of the act. R v. Cooper p. 15 iii. BOP on ∆ on a balance of the probabilities. b. Disease of the Mind s. 2 Definition: Definition: i. “Disease of the mind” contains a substantial medical component as well as a legal or policy component. ( R v. Parks Parks)) 1. Medical component = the medical opinion as to how the mental condition in question is viewed or characterized medically.
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2. Legal or policy component: a. Scope of the exemption from criminal responsibility to be afforded by mental disorder; and b. Protection of the public by the control/treatment of persons who have caused serious harms while in a mentally disordered state. i. Condition likely to present recurring danger should be treated as insanity. ii. Condition stemming from internal make-up of the accused = insanity. illness/disorder/abnormal condition which impairs the human mind and its functioning, 3. Any illness/disorder/abnormal EXCLUDING however, self-induced states caused by alcohol or drugs, AS WELL AS transitory mental states states such as hysteria or concussion.” concussion.” ( R. v. Cooper Cooper )
c. Automatism & Act negating Voluntariness: ∆’s physical motions were not culpable where they are not voluntary or thought-directed or conscious (Framework, p. 17) i. An otherwise criminal act cannot be said to be voluntary voluntary unless the the person is given reasonable time to avoid committing the act (eg – when find gun in car, & don’t have time to dispose) ii. Elements 1. Claims of automatism must be on the defense to prove involuntariness on the balance of probabilities. 2. Law pre presum sumes es peop people le act act vol volunta untaril rily y 3. Defense must: a. Make Make an asser assertio tion n of invol involunt untari arines ness, s, and and b. Call expert psychiatric and/or and/or psychological evidence evidence confirming that assertion. assertion. d. Int Intoxic oxicat atio ion n i. Gene Genera rall Inte Intent nt Off Offen ense sess Intoxica tion isn’t a defense for General Intent crimes, such as sexual assault. 1. Simple Intoxication 2. Extreme Extreme Intoxicati Intoxication: on: Where Where intoxicatio intoxication n is so extreme, extreme, an essential essential element element of the offence, offence, voluntariness, voluntariness, is not present. Must show: a. Expert Expert evidence evidence (that (that the accused accused was in a state state of automat automatism ism or insani insanity) ty) b. Accused must prove, with that expert evidence alongside any other evidence that, on a balance of probabilities, probabilities, he was in an extreme state of intoxication. intoxication. ii. S. 33.1 33.1 enacte enacted d due due to above above case case:: 1. Extreme intoxication is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats t hreats of violence) iii. iii. Specif Specific ic Intent Intent Offens Offenses es 1. Generally: Simple intoxication operates only if proof of intoxication helps leave the judge/jury in reasonable reasonable doubt over whether whether ∆ formed the relevant mens rea - the formation of of the specific intent. 2. Even if not guilty of a specific intent offence b/c of intoxication, ∆ can still be convicted of a lesser included general intent offence (e.g. murder => manslaughter, e.g. assault with intent => assault) 3. 2 Step Test: a. J 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 reasonable doubt. b. J then instructs jury that the issue before them is whether the Crown has satisfied, BRD ∆ had the requisite intent e. Sel Self-De -Defen fense i. S 34(1): Unprovoked 1. When ∆ unlawfully assaulted (must prove assault) w/o being provoked 2. ∆ may repel force if the force: a. Is not intended to cause death or GBH (even if it results in death/GBH) b. Is no more than necessary to defend himself
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assault against accused need need not actually occur; it is i. Note: An unlawful assault sufficient that accused reasonably believed that an assault has occurred ( R ( R v Cinous) Cinous) ii. S 34(2): Causing GBH or Death (provoked or unprovoked) 1. Applies Applies to to those those who intend intend or or do not not intend intend to cause cause Death Death/GBH. /GBH. 2. Subjec Subjectiv tivee & Obje Objecti ctive ve elem element ents. s. 3. Elements: a. When ∆ unlawfully assaulted, whether provoked or unprovoked, and ∆, to repel the assault, intends to cause death or GBH to another i. ∆ is justifie justified d in causing causing death death or GBH in response response to to the assault assault only only if: 1. ∆ 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 2. ∆ believes, on reasonable, grounds, that there are no alternatives to killing or causing GBH in order to preserve himself 4. Unla Unlawf wful ul assa assaul ult? t? a. Possible to reasonably conclude that the accused believed that he was going to be attacked, & was reasonable in the circumstances. 5. Reason Reasonabl ablee apprehe apprehens nsion ion of of death death or GBH? GBH? a. ∆’s reasonable perception that he was in mortal danger. b. Reasonable under the circumstances? circumstances? 4. Reasonable belief of no reasonable alternatives to killing? a. ∆ believed that he could not preserve himself himse lf except by shooting the victim? AND b. That he held this belief on reasonable grounds. iii. Self-Defens Self-Defensee & Battered Battered Wife Wife Syndrome, Syndrome, p. 21 21
f. Necessity: 3 elements: imminent, or harm unavoidable and near = Modified Modified i. Imminent peril or danger: Disaster must be imminent, objective standard ii. No reasonable legal alternative to the course of action = Modified objective standard iii. Proportionality between the harm inflicted and the harm avoided = Objective standard 1. Modified objective standard: Involves an objective evaluation, but one that takes into account the situation and characteristics of the particular ∆, including his ability to perceive the existence of alternative courses of action.
g. Duress: Can be invoked: S 17 CC for Principals, Under common law for Parties is compelled to commit an offence offence under threats of immediate death or i. S17- limits to a person who is bodily harm from a person who is is present when the offence is committed. committed. 1. Under inclusiveness of s. 17 infringes s. 7 of the Charter. Ruzic. 2. ii. Common Common Law frees frees duress duress from the the constrain constraints ts of “immedia “immediacy” cy” and “prese “presence”. nce”. The element elementss include: 1. A threat to the integrity of the person: a. Requirement of proportionality between the threat and the criminal act to be executed. 2. Threat deprives any safe avenue of escape in the eyes of a reasonable person, similarly situated. 3. Threats need not be made by a person who is at the scene of the crime - no presence requirement a. Modified objective standard 4. ∆ cannot rely on the common law defense of duress if had an opportunity to extricate himself safely from the situation of duress. a. Modi Modifi fied ed obje object ctiv ivee stand standar ard d Provocati on – applies only to Murder. Reduces charge charg e to Manslaughter when elements are met. h. Provocation
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i. 232. (1) Murder may be reduced to manslaughter if the person who committed it did so: 1. In the heat of passion 2. Caused by sudden provocation. ii. ii. Prov Provoc ocat atio ion n Eleme Element nts: s: 1. A wrongful act, OR 2. Insult 3. That is of such a nature as to be sufficient to deprive an ordinary person of the power of selfcontrol.
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