Foresight of certainty when dealing with consequences

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  Test: Is there “evidence upon which a properly instructed jury acting reasonably could acquit if it accepted the evidence as true”
  
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  The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.
  
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  In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true.
  
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  The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury.
  
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    The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences
    
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  If there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury.
  
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  The judge’s task is somewhat more complicated where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component.
  
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  In each of these cases, the question becomes whether the remaining elements of the defence… may reasonably be inferred from the circumstantial evidence
  
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    “The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the [accused would ask] the jury to draw. This weighing, however, is limited.” Arcuri, per McLachlin CJC
    

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  Test: 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.
  
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  “Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused’s perception of the situation is the “subjective” part of the test.
  
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  However, the accused’s belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second and third conditions.
  
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  Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault.
  
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  The air of reality analysis must be applied to each component of the defence, both subjective and objective.
  

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  Court relies on Fletcher’s excuse/justification distinction: A justification is said to challenge the wrongfulness of an action which technically constitutes a crime, whereas an excuse concedes the wrongfulness of an action but asserts that the circumstances are such that it ought not to be attributed to the actor
  
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  Rationale: “Realistically, however, his act is not a ‘voluntary’ one. His ‘choice’ to break the law is no true choice at all; it is remorselessly compelled by normal human instincts. This sort of involuntariness is often described as ‘moral or normative involuntariness’.”
  

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  Test (three elements):
  

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   A was in a situation of pressing emergency of great peril;
   
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     Modified objective standard
     
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   Compliance with the law was “demonstrably impossible” – there was no reasonable legal alternative
   
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     Modified objective standard
     
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   There was proportionality between the harm threatened by the situation and the one inflicted by A’s response.
   
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     Purely objective standard
     

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  Illegality or Contributory Fault: It is not directly relevant that A’s preceding conduct was illegal;
  
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    Exception: A cannot cause a situation where the clear consequences are what actually ensued, and then seek recourse to necessity
    
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    “If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency. His response was in that sense not ‘involuntary’.”
    
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  Defence must raise an air of reality about elements, then Crown must disprove BRD.
  

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  Per curiam: Necessity is narrow and of limited application.
  
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  “It held that such a defence must meet three clear and strict conditions in order to be left to a jury….
  
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    clear and imminent danger (para. 29),
    
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    absence of any reasonable legal alternative to breaking the law (para. 30) and
    
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    proportionality between harm inflicted and harm avoided, in the sense that the harm avoided must be either comparable to or clearly greater than the harm inflicted (para. 31)” Ruzic
    
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  First two elements set in Perka are assessed on a modified objective standard plus A must have an honest belief in both factors.
  
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  Proportionality is assessed on a purely objective standard
  
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    The harm inflicted need not always be less than the harm sought to be avoided; father must be either comparable to, or clearly greater than, the harm inflicted
    
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    Is this a-contextual approach justifiable? Compare duress: Ruzic
    
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  Court expressed doubt about whether homicide could ever be a proportionate response, but left this question for another day.
  
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  There was no air of reality to the defence in this case.
  

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  “17. A person who commits an offence under compulsion by threats of immediate death or bodily harm [to himself] from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and [conjunctive] if the person is not a party to a conspiracy or association whereby the person is subject to compulsion…”
  
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  Elements
  
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    Section 17 requires that the person making the threat be present when the criminal act is committed.
    
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    It also requires that the threat be of immediate, rather than future, death or bodily harm.
    
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    The section has also been interpreted as requiring that the threats be to the accused and not to some third person, like the spouse or child of the accused.
    

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  None of the above limitations was present in the defence of duress at common law.
  
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  R. v. Paquette, 1977, the SCC held that s. 17 applied only to principals and not to parties, from which it followed that Paquette (charged under s. 21 as a party to an offence) could rely on the common law defence of duress, to which the restrictions set out in s. 17 did not apply
  
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    Recall that s. 8 of the CCC preserves common law defences only to the extent that they are not inconsistent with any statutory provision.
    
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  Stands for the proposition that the codification of the defence in s. 17 applied only to actual perpetrators and not to other parties to the offence
  

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  Safe avenue of escape element: An accused cannot rely on the common law defence if he had an opportunity to safely extricate him or herself.
  
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    The opportunity to retreat is assessed on a modified objective standard.
    

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  The notion of moral voluntariness that was first introduced in Perka was elevated to a principle of fundamental justice under section 7 of the Charter
  
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    “It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability.”
    

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  At issue were the immediacy and physical presence criteria
  
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    “Section 17 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”
    
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  As this reading violates s. 7 of the Charter, s. 17 is partially struck down so that the immediacy and physical presence criteria are of no force or effect
  
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  The Court, by statutory interpenetration, did not read s. 17 as precluding reliance on threats to third parties
  
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  Section 17 can not be interpreted as: A person who commits an offence under compulsion by threats of death or bodily harm to himself or others from a person is excused for committing the offence
  

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  “The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated.
  
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  “The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.
  
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  The threat must be to the personal integrity of the person.
  
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  In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. [i.e., modified objective test] ”
  

Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

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  Identify the predicate offence (what was A allegedly trying to do?). If the predicate offence is imaginary, A cannot be convicted (Dynar).
  
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  Consider whether A had the requisite intention (Ancio, Sorrell & Bondett)
  
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  Consider whether A’s acts were more than merely preparatory (s. 24(2), Sorrell & Bondett)
  
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  In Canada, there is no defence of legal or factual impossibility (Dynar).
  

Section 24(1) refers to “an offence” and “the offence”. In Dynar 1997 SCC, the Court held unanimously that A cannot be convicted if s/he believes s/he is committing an offence, but that offence is not known to Canadian law (for example, importing sugar into Canada). Therefore, the first analytical task is to identify that A was trying to commit an offence that is known to Canadian law.

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  The crime of attempt under s. 24(1) of the Criminal Code consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt.
  
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  The conventional distinction between factual and legal impossibility is not tenable.
  
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  The only relevant distinction for purposes of s. 24(1) is between imaginary crimes and attempts to do the factually impossible. Only attempts to commit imaginary crimes fall outside the scope of the provision.
  
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    “The only relevant distinction for purposes of s. 24(1) is between imaginary crimes and attempts to do the factually impossible. Only attempts to commit imaginary crimes fall outside the scope of the provision. Because what D attempted to do falls squarely into the category of the factually impossible – he attempted to commit crimes known to law and was thwarted only by chance – it was a criminal attempt within the meaning of s. 24(1).”
    

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  Case seems to turn on whether Dynar had the requisite mens rea of the predicate offence.
  
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  Dissent: “There must be an underlying offence capable of being committed before the elements of the attempt offence can be considered. The substantive offence of money laundering as it stands cannot be committed without the actual proceeds of crime being present. The accused cannot ‘know’ that what he is laundering is the proceeds of crime unless the proceeds are in fact the proceeds of crime. Since D did not have knowledge, the mens rea of the offence, he cannot be said to have attempted it.”
  
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    Point being that without the mens rea of the offence, there is no underlying offence capable of being committed
    
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  Majority: “Even though D did not ‘know’ that the money he attempted to convert was the proceeds of crime, he nevertheless had the requisite mens rea for a crime. Knowledge is not the mens rea of the money-laundering offences. Knowledge has two components – truth and belief – and of these, only belief is mental or subjective. Belief is the mens rea of the money-laundering offences. That the belief be true is one of the attendant circumstances that is required if the actus reus is to be completed.”
  
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  “The law of attempt is engaged only when, as in this case, the mens rea of the completed offence is present entirely and the actus reus of it is present in an incomplete but more than merely preparatory way.”
  
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    I don’t agree with the tortured reasoning that “Belief is the mens rea of the money-laundering offences”.
    
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    Therefore, I don’t agree that “there is an underlying offence capable of being committed”
    

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  Identify the offence creating section. Set out the sentence and any maximums and minimums. Mention the possibility of a discharge under 730 of the Code
  

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  The fundamental principle of sentencing is found in s. 718.1 of the Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
  
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  In R. v. Martineau, this principle was elevated to a principle of fundamental justice under section 7 of the Charter. The case involved one of the constructive murder provisions of 230(a) of the Code. In striking down the provision, Lamer CJC identified several factors relevant to that impact the constitutionality of a mens rea requirement.
  
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  One was the punishment must be proportionate to the moral blameworthiness of the offender. Another posits that those causing harm intentionally must be punished more severely than those causing harm unintentionally. Thus, a punishment would be unconstitutional if it were disproportionate to the fault of the offender or which, in comparison, allowed a criminally negligent person to be punished more severely than an accused who deliberately committed a similar offence, or both. These factors were affirmed by the court in Creighton (confirming the constitutionality of the objective foreseeability of bodily harm for unlawful object manslaughter).
  

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  In addition to s.718.1, s 718 and s. 718.2 enumerates a number of normative principles that a trial judge must consider when passing sentence. The Supreme Court in R. v. M(L) stated that “sentencing is primarily a matter for the trial judge's competence and expertise” and he or she is given wide discretion because of the individualise nature of the process (and ought to be afforded deference by appellate courts)
  
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  According to the court in R. v. M(L), in passing sentence, the trial judge must consider the goals of sentencing enumerated in s. 718 and the following principles articulated in s. 718.2
  
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    “that a sentence should be increased or reduced to account for aggravating or mitigating circumstances [718.2(a)]
    
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    that a sentence should be similar to other sentences imposed in similar circumstances, [718.2(b]
    
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    that the least restrictive sanctions should be identified [718.2(d)] and that available sanctions other than imprisonment should be considered” [718.2(e)]
    

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  Although not mentioned by the court in R. v. M(L), s. 718.2(e) emphasises that when considering the reasonableness, anticipated efficacy and wisdom of non-custodial sentences, particular attention should be paid to the circumstances of aboriginal offenders.
  
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  The provision and its application are driven by sound policy factors, described in detail R. v. Gladue, a case in which an aboriginal woman living off reserve stabbed her common law partner to death and pled guilty to manslaughter.
  
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  The unanimous Gladue court held that that s. 718.2(e) was a remedial measure and not simply a codification of existing jurisprudence. Its policy based objectives were to alleviate the chronic overrepresentation of aboriginal people in the penitentiary system, and to encourage trial judges to take a restorative approach to sentencing
  
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  From the case head-note:
  
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    “In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection”
    
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  The needs of the parties most closely affected by the crime (victims, offender, community at large) will play a large role in the determination of the appropriateness of a particular sentence
  
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  “Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.”
  

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  Section 718 of the Code explains that a just sanction achieve one or more objectives. These goals were thoroughly analysed by Woods J.A. of the BC Court of Appeal in his concurring judgement in R. v. Sweeney (1982) (where the accused successfully appealed from his 4.5 year sentence for criminal negligence causing death – reduced to 18 months LAD). Woods J.A. considered the objectives of general deterrence (718(b)), specific deterrence (718(b)), isolation (718(c)), rehabilitation (718(d)), and denunciation (718(a))
  
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    NB. since the court’s ruling in Sweeney, s. 718 has been altered such that the first goal of sentencing (718(a)) is denunciation, presumably reflecting a legislative policy that this objective be considered first by sentencing judges
    
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  It is perhaps worth considering the most relevant principles of section 718 in light of the analysis of Woods J.A. from the perspectives of the Crown and defence, before turning to a conclusion as to what, on balance, a proportionate sentence would look like
  
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  Denunciation (718(a)): If arguing consequences, need to engage with Wood JA’s observation that consequences are irrelevant to gravity. Woods J. felt that incarceration should be a last resort even to denounce unlawful behaviour – no other sanction is sufficient. When determining whether to impose a custodial sentence, the LRCC suggests considering the nature, seriousness and circumstances of the offence and the social reprobation associated with the offence
  
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  General deterrence (718(b)): Discourage potential offenders. Custodial will not necessarily achieve this objective: Empirical research suggests that general deterrence does not increase as sentences grow longer or more harsh. But consider the general deterrent effect of punishing a well known person.
  
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  Specific deterrence (718(b)): Important goal but should not be conflated with isolation, which can be seen as a form of specific deterrence. In the absence of evidence to the contrary, a custodial sentence will have no greater effect on specific deterrence than general deterrence; thus, in the absence of factors that absolutely militate for isolation, if a custodial sentence is not required for general deterrence it ought not to be imposed to achieve specific deterrence. There may be exceptions, however, that a sentence will have a greater specific than general deterrent effect, e.g., shame, embarrassment, loss of standing b/c of nature of the crime
  
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  Isolation (718(c)): Serves to protect society from the offender absolutely or during his or her rehabilitation. But because of the inimical relationship between jail (in particular) and rehabilitation, isolation should be considered as an option of last resort so as not to prejudice any chance of rehabilitation – or render the convict an even greater threat than he was before incarceration. The offender must eventually be released
  
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  Rehabilitation (718(d)): Woods J.A. advanced belief that rehabilitation was the “only certain way of permanently protecting society from a specific defender”. If rehabilitation is possible, even in cases of serious crimes, the possibility of achieving this goal may outweigh any perceived independent general deterrent effect of incarceration. Non-custodial conditions can be made very harsh indeed, but should be crafted to balance the needs of supervising rehabilitation, restorative measures, deterrence (specific and general) and retributive justice.
  

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  Under the circumstances, a sentence of X would be appropriate
  

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  The fundamental principle of sentencing is that a ‘sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’ (s. 718.1).
  
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  Maximum sentence is not just theoretical: “cannot be reserved for the abstract case of the worst crime committed in the worst circumstances.”
  
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  A maximum sentence should not be “reserved for the worst cases involving the worst circumstances and the worst criminals.”
  
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  The judge will be guided by the “fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence” Gladue
  
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    Aggravating factors or circumstances
    
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    Mitigating factors or circumstances
    
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    Complexity of the crime
    
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  Minimum sentences: the test is gross disproportionateness (R. v. Ferguson)