s.274
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No corroboration is required for conviction, and the judge shall not instruct the jury that is unsafe to find the accused guilty in the absence of corroboration.
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Abolished the idea that women could fabricate with no evidence
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s.275
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Abrogates the common law rules relating to the doctrine of recent complaint
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Historically: if it was not reported immediately it was held the woman was more likely to be lying. The common law allowed the jury to draw a negative inference from this. In reality, there is no correlation between timing and truth.
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The old s.276: “rape shield” provisions – shielded complainants in trial from being asked irrelevant and inappropriate questions about sexual activities with persons other than the accused. It was a BLANKET exclusion, subject to three situations where it could be admitted.
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If it rebutted evidence of the complainant’s sexual activity or absence thereof
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If it tended to establish the identity of the person who had sexual contact with the complainant
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If it was evidence of sexual activity that took place at the same occasion and relates to the consent the accused believed he was given.
historically, myth that women who had relations outside of marriage were more likely to have consented and that sexual reputation could attach to the credibility of the victim.
R v Seaboyer 1992 SCC
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Held: the effect of s.276 is unconstitutional as it is too narrow (the blanket exclusion except for rebuttal evidence, evidence going to identity and evidence related to consent). It would preclude the accused leading evidence of the defence of honest belief, therefore it is a violation of ss.7 and 11(d): it renders inadmissible evidence that may be essential to the presentation of legitimate defences.
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Set out guidelines for new provisions
Bill C-49: enacted in response to Seaboyer, essentially a codification of the suggestions.
s.276
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(1) doesn’t attempt to delineate all the circumstances where sexual conduct would be permissible, rather it sets out the purpose for which the evidence is not permissible (to support an inference that the complainant likely consented or is less worthy of belief (twin myths)
(2) codifies Seyboyer, probative defence evidence can only be excluded if it prejudicial effect outweighs the probative value.
(3) factors to determine the prejudicial effect
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s.277
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Was upheld as constitutional in Seaboyer: no evidence of sexual reputation is admissible for the purpose of challenging or supporting the credibility of the complainant
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R v Darrach 1998 ONCA
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Argues the stigma characterization of sexual assault, so as to require subjective fault.
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Held: the new provisions are constitutional, as they are not blanket exclusions. The principles of fundamental justice can be respected without the accused being entitled to the most favourable procedures imaginable. He is not entitled to procedures that would distort the truth-seeking function of the trial.
Issue of record disclosure: personal records could be disclosed during a trial.
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Stinchcombe: the prosecutor must disclose all relevant evidence, and this has been held to include any personal records of the complainant which the prosecutor has copies of (O’Connor)
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O’Connor: the accused can apply to have personal records in the hands of third parties subpoenaed (such as counseling centers, hospitals or schools) subject to a two-step judicial inquiry (logically probative and balanced between right to full answer and defence and privacy rights)
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Parliament reached in response to the majority.
Bill C-46:
s.278.1-
s78.9
| Designed to create greater privacy for complainants through two steps: -
Defence must apply in writing under s.278.3 with grounds to establish the record is “likely relevant” (rather than “reasonable possibility”). There may be a voir dire
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Judge reviews the material and decides whether or not to produce it to the accused (code contains factors to consider)
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R v Mills 1999: challenged new provisions but were upheld as constitutional.
R v Hutchinson 2010
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Fraud vitiates consent in sexual assault.
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Agreement to engage in sexual activity in s.273.1(1) is more than consent to the application of force unders.265.
THERE MUST BE A POSITIVE AFFIRMATION OF CONSENT
Defence of Intoxication
To have criminal responsibility, there must be:
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AR + MR + without excuse or justification
Intoxication: essentially saying there was not the mens rea required for conviction for reason of intoxication by drugs or alcohol.
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The accused bears the evidentiary burden – must advance some evidence for the defence to be put to the jury (air of reality)
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Evidence of intoxication to the level that would negate mens rea
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The defence doesn’t capture circumstances where the accused deliberately becomes drunk to get the courage to commit the crime
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Also not available where intoxication is part of the AR of the offence – eg impaired driving
In the past, we treated intoxication as an aggravating factor, without much thought of it having an effect on the mens rea.
DPP v Beard 1920 AC HL BEARD RULES
1) intoxication could be a ground for an insanity defence if it produced a disease of the mind (s.16 of CC) -
courts have afforded the accused to run the defence of insanity by drugs or alcohol use – eg. Delirium tremens accused withdrawing from alcohol use can experience this condition, and part of it can be psychosis. In that psychotic state, the individual may commit a crime. The court could apply the defence of NCRMD.
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The scope of this rule is narrowing.
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Q: did drugs/alcohol produce a “disease of the mind”?
if yes, consider application for NCRMD declaration under s.16
if no, proceed to 2nd and 3rd rules
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**Specific intent offence or general intent offence?
Specific Intent Offence
- purpose is beyond the actual action itself – “require the mind to focus on objective further to the immediate one at hand” (consequence is intended) (Daley 2007)
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General Intent Offence
-require only a conscious doing of prohibited act
(may not want the consequences- intend the actus reus but may not intend the consequences of the actus reus)
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Murder
B&E, with intent to commit CPI
Touching child for sexual purpose
Theft
Assault w/ intent to resist arrest
Robbery
Possession of a weapon for purpose dangerous to public peace
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Manslaughter
Assault, ACBH, Agg assault
Unlawfully causing bodily harm
Sexual Assault
Mischief
Pointing firearm
Impaired driving.
Arson (Tatton 2015 SCC)
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R v Tatton 2015 SCC SPECIFIC VS GENERAL OFFENCE TEST
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Moldaver: when an accused is advancing the defence of intoxication, and you need to determine whether an offence is specific or general, use this test:
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1) determine the mental element of the provision
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2) determine whether specific or general intent
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existing jurisprudence
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“relative importance” of the mental element
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policy considerations
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is alcohol consumption habitually associated with the crime in question?
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If it is, then allowing an accused to rely on an intoxication defence would be counterintuitive.
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Is there a lesser-included offence?
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If there is, will be more comfortable clotting it into specific offence
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Is there judicial discretion on sentencing?
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If there is a heavy minimum sentence, do not want to foreclose the defence – widen the scope
also look at complexity of thought and reasoning process
General offence: mental element is straightforward, the offence involves
little mental acuity, minimal intent or a minimal degree of consciousness
Specific offence: complex thought and reasoning process, the accused must not only intend to do the act, but also act with an ulterior purpose in mind
something more than the general act
a heightened mental element may take the form of an ulterior purpose, or knowledge of outcome and consequences, or may involve intent to bring about certain consequences.
2) if the accused is charged with a specific intent, that individual might have a defence if he or she lacked the capacity to form that specific intent by reason of intoxication. -
Defence of intoxication is only available for specific intent offences
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The word “capacity” is problematic – Robinson case court thought it was too broad
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Prescription as to how jury should be instructed modification on the Beard rules
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The question is: did the accused have the specific intent at the time of the offence, proven beyond a reasonable doubt? Don’t want to exclude those who had the capacity but didn’t have the specific intent.
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Q: is the accused charged with a specific intent offence?
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If yes, can Crown prove BRD that the accused had actual specific intent?
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If no, not guilty of specific intent offence but likely conviction for lesser included general intent offence
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If yes, guilty of specific intent offence
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If no, guilty of general intent offence (subject to R v Daviault)
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Intoxication is not a defence to general intent offence
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Daviault carves out an exception
R v Daviault 1994 SCC -
A marked and sharp departure from previous case law involving specific and general offences
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Daviault charged with sexual assault of 64 year old woman in wheelchair
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They were friends, he consumed 8 beers beforehand, asserts no recollection
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Pharmacologist took the stand – if he had indeed consumed all that alcohol at the time he said he did, his blood level would have been 4.0-6.0. Normal person would have died but he was an alcoholic.
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That level of consumption might well produce this blackout, and trigger dissociation or automatism may have no awareness of what he is doing, let alone memory – VOLUNTARINESS IS IMPORTANT, can’t convict absent that their action is voluntary
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Accused said defence of intoxication should be available to him in response to a general intent offence and if not, his charter rights were being violated
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Held: The substituted mens rea of an intention to become drunk cannot become the mens rea required for the offence
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It is not a crime to get drunk, cannot substitute the mens rea of an intent to become drunk to prove assault, this is contrary to charter
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Opening the door for defence of intoxication for general intent offences WHERE INTOXICATION IS SO EXTREME AS TO BE AKIN TO AUTOMATISM OR INSANITY
there was concern that Daviault was leaving victims vulnerable to violence by the extremely drunk
Parliament enacted s.33.1 of the CC Bill C-72 -
An act to amend the CC (self induced intoxication) 1995
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Parliament said women, children are at risk, they have rights too
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Said they didn’t agree with Corey in Daviault
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Legislated the dissent view in Daviault
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Removed the defence of intoxication from the reach of accused persons whose intoxication was (i) self induced and (ii) whose crime involved personal violence
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Ignored Corey’s assertion that guilt by proxy violates s.7 of the Charter substitutes mens rea to drink with mens rea for assault – imports a negligence-type standard (penal negligence)
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*take into account the vulnerability of this law to constitutional challenge some declare s.33.1 unconstitutional (Ontario) and some uphold it (BC courts)
Q: per s.33.1 CC does offence involve personal violence and was intoxication self-induced? -
if yes, guilty of general intent offence, subject to Charter challenge
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if no, not guilty of general intent offence
3) Evidence of drunkenness falling short of proved incapacity does not rebut the presumption that a man intends the course of his acts.
Bouchard-Lebrun 2011 SCC
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took ecstasy then brutally attacked two people while in a psychotic state. Charged with aggravated assault (no defence b/c of s.33.1). Argues he should get NCRMD s.16 designation.
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Held: a drug induced psychosis or a toxic psychotic state is not a Mental Disorder
R v George 1960 SCC
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When a case with a charge for an indictable offence contains facts that lead to a commission of another crime (whether punishable by indictment or summary conviction) the charge may be divided (s.590(3)).
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Intoxication often makes it impossible for a person to form the specific intention in crimes, however only intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.
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Ferguson, “The Intoxication Defence”
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