Crim Outline – Berger – Spring 2009

• 
  pre-Charter, only presumptions of subjective MR for murder, etc
  
• 
  s.7 of Charter = most important section for development of criminal law:
  

ii) subjective MR for stigma offences (see Vallaincourt, Martineau,)

• 
  **Constitutional Bar** - Stigma Offences
  
  • 
    constitutionally, a stigma offence requires subjective MR (Vallaincourt in obiter, Martineau)
    
  • 
    Only 4 recognized stigma offences (no specified criteria)
    

1. 
   murder
   
2. 
   attempted murder
   
3. 
   crimes against humanity (Finta)
   
4. 
   theft
   

• 
  court has not been keen to expand this list
  

• 
  felony/constructive murder (s. 230) does not require MR = unconstitutional
  
• 
  Held: gets rid of felony murder (= accidental killings cannot result in murder conviction, only manslaughter?)
  
  • 
    Uses PFJ: “must be some special element with respect to the death before a culpable homicide can be treated as murder”
    
• 
  Notion of a ‘stigma’ offence mentioned in obiter
  

- deceased deliberately shot by accused’s accomplice during a robbery

- adopts obiter from Vallaincourt re: stigma offences

- s. 230 Felony murder offends PFJ of proportionality

• 
  - “to label and punish a person as a murderer who did not intend and foresee death unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a murderer”
  
• 
  L’H-D dissents
  
  • 
    Says the act was so bad that it shouldn’t require subjective MR
    
  • 
    Majority lets MR carry too much weight
    
  • 
    Misplaces compassion
    

• 
  Crimes against humanity (senior officer at concentration camp)
  
• 
  Held: accused was subjectively aware that it would shock the conscience of the community
  
  • 
    = adopts Martineau
    
  • 
    crimes against humanity are a stigma offence
    

- Unlawfully causing bodily harm (s. 269)

- ONLY need objective MR

- result-driven/predicate offences…

• 
  3 step test from Prue & Baril look at:
  

1. 
   nature of offence
   
2. 
   seriousness of offence
   
3. 
   seriousness of penalty
   

• 
  General penalty for regulatory offences (unless otherwise stated) is from s. 4 of BC Offence Act:
  
  • 
    $2000 fine or 6 months in jail or both
    
• 
  over 2 years in jail = much more serious
  
• 
  Determining nature of prohibited conduct – 3 tools: First 2 from Wholesale Travel, 3^rd from Berger:
  

1. 
   mala in prohibita vs. mala inse
   

• 
  mala in prohibita = bad b/c its prohibited = regulatory offence
  
• 
  mala inse = bad in and of itself = true crime
  

2. 
   purpose of legislation
   

• 
  to establish standard of conduct/prevent future harm (forward looking) = regulatory offence
  
• 
  condemnation/punishment (backward looking) = true crime
  

3. 
   moral disapprobation
   

• 
  failure to act up to standard of conduct = regulatory offence
  
• 
  conduct has high moral stigma = true crime
  

• 
  Absolute Liability: Upon proof by the crown BRD that AR is made out, accused is found guilty = NO requirement of MR
  
• 
  Strict Liability: Upon proof by the crown BRD that AR is made out, burden shifts to accused to prove due diligence on BOP (developed in SSM)
  
  • 
    Reversal of burden of proof is constitutional (Wholesale Travel)
    
    • 
      2: doesn’t breach s. 11(d)
      
    • 
      3: breaches s. 11(d) but is justified under s. 1
      

• 
  Late 50s, for true crimes, absolute liability is unfair (Beaver)
  
• 
  But for regulatory crimes, absolute liability is imposed (Pierce Fisheries)
  
• 
  By late 70s, for regulatory crimes, unless otherwise stated, presume strict liability: (SSM) b/c:
  
  • 
    If purpose of statute is to establish higher standards of care, absolute liability goes too far
    
  • 
    Should be general proportionality b/w punishment and moral blameworthiness (not yet a PFJ b/c pre-Charter)
    
• 
  1982 Charter - s. 7 makes it no longer permissible to expose someone to loss of liberty without some element of MR (PFJ) (BCMV)
  

***Constitutional Bar***

• 
  imprisonment from Absolute Liability = unconstitutional (BCMV)
  
  • 
    = affirmed and made constitutional the presumption from SSM of strict liability for regulatory offences
    
  • 
    Absolute liability is still okay as long as there’s no imprisonment (Pontes)
    

• 
  Legislative response to constitutional bar in BCMV is:
  
  • 
    s. 6 of BC Offence Act: Despite s. 4 (general rule) or provision of any other act, no person is liable to imprisonment with respect to an Absolute Liability Offence
    
    • 
      essentially a catch-all fix that takes imprisonment off the table and keeps existing legislation within constitutional boundaries
      
    • 
      Absolute liability still okay as long as no imprisonment Pontes
      

• 
  Shouldn’t fines be considered a loss of liberty?
  

• 
  charged with possession of heroin, didn’t think he had it but Crown argues he did
  
• 
  Crown pushes for Absolute liability = requires NO MR
  
• 
  Held: For true crimes, if there’s silence, MUST be subjective MR
  

• 
  charged with fishing undersized lobsters = regulatory offence
  
• 
  Held: Absolute Liability imposed
  

• 
  accused polluted stream
  
• 
  Held: absolute liability is too harsh
  
• 
  Introduces halfway house of strict liability
  
• 
  For regulatory offences, unless otherwise stated, presume strict liability
  

• 
  Absolute liability is still okay as long as it doesn’t involve a loss of liberty
  

• 
  SCC unanimous:
  
  • 
    It is NOT an infringemenf of Charter (s.7) to create an offence for which the mental element is negligence (in strict liability cases)
    
  • 
    Reverse onus to prove due diligence is upheld as constitutional
    

• 
  Criminal Law deals with social breakdown, but at the point crime has been committed, so much has already gone wrong
  
• 
  women are disproportionately at a higher risk of violence because of their gender
  
  • 
    isn’t this a bigger gender equity issue than pay equity, etc?
    
• 
  fundamental disconnect: reality of historic gender roles vs. assumption of neutrality in criminal law
  
  • 
    rather criminal law is expressive of a particular history
    
• 
  can’t take expressiveness out of criminal law, but we must change what we are expressing
  
• 
  Berger’s 3 ideal goals for reform:
  
  • 
    1) target at systemic structures that allow gendered violence
    
  • 
    2) protect dignity/privacy/security of complainant
    
  • 
    3) not make it any more likely that the innocent will be convicted
    
• 
  2 objectives of sexual assault laws:
  
  • 
    1) eradicate hidden myths/assumptions stereotypes that conflict with gender equality
    
  • 
    2) presumption of innocence
    
    • 
      because sexual assault happens in private = very difficult to prosecute
      

Development of Sexual Assault Laws

• 
  Rape Shield Laws: Prior legislation
  
  • 
    Waiting before making complaint = presumption of fabrication
    
  • 
    Could not convict on uncorroborated evidence
    
  • 
    Twin Myths – a woman with a past sexual history is:
    
    • 
      More likely to consent – once a woman is sexually active she’s sexually available
      
    • 
      Less believable – links chastity to honesty
      
• 
  Legislative amendments 1983
  
  • 
    s. 276 – past sexual history is inadmissible as evidence (twin myths not acceptable
    
  • 
    Rape no longer about personal property, now about personal integrity
    
  • 
    Canada no longer has “rape”, now only “sexual assault” and degree of assault is addressed in sentencing
    
    • 
      Rape rooted in notion of theft – should we bring back that terminology?
      
• 
  Response to legislative amendments
  
  • 
    McLachlin for the court says s.276 is overbroad
    
    • 
      While twin myths don’t have a place in our laws, past sexual history may be relevant in certain cases (Seaboyer)
      
  • 
    Legsilature amends s. 276 with Bill C-49 (1992) to eliminate twin myths, but sexual history may be admissible evidence if it’s highly relevant
    
  • 
    SCC supports new legislation in Darrach
    
    • 
      Fair trials are about truth seeking and fair process
      

Elements of Sexual Assault:

• 
  Actus Reus:
  
  • 
    i) unconsented to
    
  • 
    ii) touching
    
  • 
    iii) of a sexual nature
    
• 
  Mens Rea:
  
  • 
    i) intent to touch
    
  • 
    knowledge (or willful blindness) as to lack of consent
    

defence of Mistake of Fact*

- test to be applied in determining whether conduct has requisite sexual nature is OBJECTIVE (reasonable observer)

- Not necessary that sexual touching was done for sexual gratification
R. v. Seaboyer 1992 SCC

- SCC majority (McLachlin):

- rape shield provisions unconstitutional
R. v. Darrach 2000 SCC

- supports Bill C-49

• 
  Negative Defences (negates MR and/or AR)
  
  • 
    Ex: Mistake of Fact, Intoxication
    
• 
  Positive/Affirmative Defences (does NOT negate MR or AR)
  
  • 
    Excuses: Concessions to human frailty
    
    • 
      Ex: duress, provocation
      
    • 
      Civil liability
      
    • 
      CAN be party to an excused action
      
  • 
    Justifications: Acting rightly, though illegally
    
    • 
      Ex: self-defence
      
    • 
      NO civil liability
      
    • 
      Can NOT be party to justified action
      

• 
  Procedural Stops: (penalties assigned to government)
  
  • 
    Doesn’t change culpability of accused, but case mishandled by government
    
  • 
    Ex: entrapment, abuse of process, unfit to stand trail (ish)
    
• 
  Exemptions: (not subject to criminal liability)
  
  • 
    Ex: mental disorder, children under 12, foreign dignitaries
    

How to raise a defence:

• 
  Accused must establish to a judge that there is an air of reality to the defence (Osolin)
  
  • 
    Accused must show some evidence (evidentiary burden) = very low threshold
    
  • 
    “Is there some evidence on the basis of which a properly instructed jury acting reasonably could acquit?” (Cinous)
    
• 
  Once air of reality is established, burden is on Crown to disprove defence BRD
  
  • 
    Exceptions where the burden is reversed (Osolin):
    
    • 
      Insanity
      
    • 
      MD
      
    • 
      Automatism
      
    • 
      Daviault intoxication
      

• 
  The Defence:
  
  • 
    Made an honest mistake
    
  • 
    Negates MR = negative defence
    
  • 
    Applies to any crime where an awareness of a fact is involved
    
  • 
    Ex: Beaver – honestly thought heroin was milk powder
    
• 
  Requirement for standard of belief (subjective or objective) mirrors requisite MR:
  
  • 
    If required MR is subjective, only need an honest belief
    
  • 
    If required MR is objective, need both honest and reasonable belief
    

• 
  even though MR for sexual assault is subjective, belief in consent must be both honest and reasonable (s. 273.2)
  
• 
  Development of Defence of Mistaken belief in consent re: sexual assault
  
  • 
    In 1980 SCC confirmed that general rule applies for sexual assault: since MR for sexual assault is subjective = only need an honest belief (Pappajohn)
    
    • 
      Decision heavily criticized:
      
      • 
        Boyle: gives full reign for people to rely on their myths and stereotypes
        
      • 
        Pickard: it is not onerous to ask people to act reasonably in sexual relations – it makes good sense and protects women
        
  • 
    In 1985 SCC limits (but does not change) the rule in Pappajohn – although there is NO requirement of a reasonable belief, the honestly held belief must NOT be from willful blindness (Sansregret)
    
  • 
    Legislative response in 1992 had two effects:
    
    • 
      1) defined consent in 3 sections (273.1(1)(2) and (3))
      
      • 
        requires an affirmative consent
        
      • 
        lists examples of where consent is NOT obtained
        
      • 
        can withdraw consent at any time
        
      • 
        no consent where application of force/power or abuse of authority
        
    • 
      2) creates special rule re: standard of belief for mistake of fact as applied to sexual assault (s. 273.2)
      
      • 
        belief in consent is NOT a defence where:
        
        • 
          belief arose out of self-induced intoxication, recklessness or willful blindness (codification of rule in Sansregret)
          
        • 
          accused did NOT take reasonable steps to ascertain consent
          

- In 1999 SCC holds that as long as victim is believable, if she says there

• 
  confirms general rule that standard of belief mirrors requisite MR
  
  • 
    since sexual assault requires subjective MR, only need an honest belief in a mistaken fact
    
• 
  Held: no air of reality to defence = guilty
  

• 
  trial judge applied Pappajohn and acquitted
  
• 
  SCC puts limit on subjective belief of consent:
  
  • 
    Did NOT change rule in Pappajohn (still don’t need a reasonable belief) but put a limit on it:
    
    • 
      Honest belief can NOT be from willful blindness
      

• 
  leading case on consent
  
• 
  accused lures victim into van, makes several advances even though she protests
  
• 
  Held:
  
  • 
    No such thing as implied consent
    
  • 
    If victim says there’s no consent (and is believed by judge), that is proof enough, Crown discharges burden of proving lack of consent
    

• 
  upholds C-49
  
• 
  subjective ONLY for belief in consent
  

• 
  codification of common law rule
  
• 
  can be harsh and unjust:
  
  • 
    Bailey 1800: at sea when law changed
    
  • 
    Esop 1836: foreign sailor engaged in act legal in his own country but not in England
    
  • 
    Dalley 1957 Ont CA: relied on lawyer’s advice that something was legal, it wasn’t = prosecuted under Securities Act (provincial offence)
    
  • 
    Brinkley 1907 Ont CA: relied on lawyer’s advice that first marriage was dissolved, re-married, charged with bigamy = guilty
    
    • 
      Note: today this case would be resolved under Prue & Baril
      
  • 
    Campbell 1972 Alta DC: relied on Alt SC decision that nude dancing was allowed (it wasn’t, decision was overturned)
    
    • 
      But did act BEFORE decision overturned
      
    • 
      Held: doesn’t matter, trial judge was wrong, law never changed = shouldn’t trust a trial judge?!?
      
  • 
    Molis 1980 SCC: makes drug that’s legal, druge later restricted by Regulation, published in Gazette = due diligence in knowing law at outset not enough – need to know when it changes too
    
  • 
    Jones & Pamajewon 1991 SCC: bingo on Indian reserve without a provincial license – their belief that CC didn’t apply was a mistake of law and no defence
    
  • 
    Gunn 1997 Alt. CA: lawyer interfered with client’s arrest b/c he thought it was illegal (it wasn’t) = charged with obstruction of justice
    
    • 
      Distinguished Docherty: here lawyer’s mistake of law did not negate the MR of “willfully” obstructing a peace officer
      
    • 
      Widely criticized
      
• 
  Rationales for harsh rule:
  
  • 
    1) Defence would involve impossible evidentiary burden for Crown
    
  • 
    2) Encourage ignorance
    
  • 
    3) Anarchy
    
  • 
    4) Ignorance of the law is blameworthy in itself
    
• 
  Fine line b/w mistake of law and fact
  
  • 
    In criminal law, provincial laws are treated as facts IF they form part of Criminal offence = mistake of provincial law = use Mistake of Fact defence (Prue & Baril)
    
  • 
    BUT in MacDougall he was in realm of provincial laws, with provincial effects, but found guilty: law is law
    
    • 
      Obiter in Pontes seemed to side with MacDougall and criticize Prue&Baril’s distinction b/w provincial law as fact and Criminal law as law as incorrect
      
      • 
        BUT P&B NOT overruled = still out there
        
• 
  4 Exceptions:
  

1. 
   If government didn’t publish law in the gazette (Ross)
   
2. 
   MR requires knowledge of the law (Docherty)
   
3. 
   If Theft, Colour of Right (Howson)
   

• 
  s. 322(1) – everyone commits offence who takes item without colour of right
  
  • 
    basically, you don’t have the right but it looks/seems like you do
    
  • 
    if you have honest but mistaken belief that you have a right to that property, then you have colour of right = can’t be charged
    
• 
  to claim, must be in provision in Code
  

4. 
   Officially Induced Error (Jorgensen, adopted in Levis) (allowed in Cancoil)
   

• 
  1) an error of law or mixed fact/law was made
  
• 
  2) considered legal position
  
• 
  3) consulted appropriate legal official (someone in charge of administering law)
  
• 
  4) reasonable reliance on advice
  
  • 
    Clarified that reliance must be “objectively reasonable” and factors considered (Levis):
    
    • 
      Clarity of obscurity of law
      
    • 
      Position and role of official who gave info
      
    • 
      Clarity, definitivenesss/reasonableness of opinion
      
    • 
      Efforts made by accused to obtain info
      
• 
  5) Reliance has to be on an erroneous legal opinion of an official
  
• 
  6) Must demonstrate ACTUAL reliance
  
  • 
    advice given before actions
    
  • 
    were questions poses specifically tailored to circumstances
    
• 
  successful defence in 4) limited to stay of proceedings/procedural stop
  
  • 
    similar to entrapment – state has disentitled itself from a conviction
    

• 
  charged with Code offence driving with a suspended license
  
• 
  had been charged with provincial offence = his license had been suspended but he didn’t know that
  
• 
  mistake of law or fact?
  
  • 
    Fact: didn’t know license was suspended
    
  • 
    Law: didn’t know it’s illegal to drive with a suspended license
    
• 
  Held: mistake of FACT = not guilty
  
• 
  Effects of provincial law will be considered facts IF they are part of Code offence
  
  • 
    If they are part of provincial offence, then NOT mistake of fact, but a mistake of law
    

• 
  charged with provincial offence of driving with suspended licence
  
• 
  prior: had been charged with prov. Offence, had received notice of license suspension, appealed = license reinstated
  
• 
  lost appeal = license revoked, sent new notification
  
• 
  thought license was valid until he received notice, but it was suspended the moment he lost appeal
  
• 
  Held: mistake of law = no defence = guilty
  
• 
  Law is law
  

• 
  Held: ignorance of automatic suspension of licence under provincial Motor Vehicle Act is a mistake of LAW (different than P&B though doesn’t overrule it since in that case accused was charged under Code)
  
• 
  BUT P&B is still alive and well
  
• 
  Cast doubt on decision in P&B
  
  • 
    P&B and MacDougall are irreconcileable
    
• 
  Obiter:
  
  • 
    Suggested P&B is wrong – law is law
    

• 
  While on probation, found drunk in car but car turned off
  
• 
  accused charged with willfully not following order of probation officer
  
• 
  accused said didn’t know it was illegal to just be drunk in his car
  
• 
  Held:
  
  • 
    Defence allowed
    
  • 
    Offence required “willful” breach of law – since he didn’t know it was illegal, couldn’t fulfill the MR requirement
    

• 
  tow truck driver charged with theft of car when he refused to give back towed car without payment
  
• 
  Held: had colour of right = has a defence in mistake of law = acquittal
  

• 
  Affirms OIE in Cancoil
  
• 
  did accused sell obscene material without excuse?
  
• 
  Held: Film Board approval is sufficient authority for reasonable reliance/officially induced error
  

• 
  Adopted scheme in Jorgensen
  
• 
  Clarified that reliance must be “objectively reasonable” and factors considered:
  
  • 
    Clarity of obscurity of law
    
  • 
    Position and role of official who gave info
    
  • 
    Clarity, definitivenesss/reasonableness of opinion
    
  • 
    Efforts made by accused to obtain info
    
• 
  took reasons from Jorgensen
  
• 
  similar to entrapment
  
• 
  procedural stop – accused is still morally blameworthy but a stay should be entered for the following reasons:
  
  • 
    1) an error of law or mixed fact/law was made
    
  • 
    2) considered legal position
    
  • 
    3) consulted appropriate legal official (someone in charge of administering law)
    
  • 
    4) reasonable reliance on advice
    
  • 
    5) Reliance has to be on an erroneous legal opinion of an official
    
  • 
    6) Must demonstrate ACTUAL reliance
    

• 
  When using intoxication as a defence, it doesn’t matter what substances you used and whether or not they’re legal is irrelevant
  
• 
  Can’t use intoxication as a defence when intoxication is an element of the offence (ex: impaired driving) (Penno SCC 1990) duh!
  

Important distinctions:

1. 
   
   Directory: ~lssweb -> wp-content -> outline uploads
   outline uploads -> Law 309 Evidence Introduction 5
   
   
   
   Download 232.51 Kb.
   
   Share with your friends: