Law 120 criminal



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MENS REA AND THE CHARTER


Recall that mens rea is subjective and Parliament must expressly create absolute liability offenses with clear language. At the time of Beaver there was nothing preventing Parliament from creating absolute liability criminal offenses. But post -1982, all legislation must accord with the Charter, and s. 7 of the Charter limits the ability of Parliament to create absolute liability criminal offenses.

 

Section 7 of the Charter

Everyone has the right of life, liberty and security of the person, and are not to be deprived of these rights except in accordance with the principle of fundamental justice.

 

Is principle of fundamental justice a substantive principle or only a procedural one? This mirrors a debate in US over the due process rights in the 14th amendment (Roe v Wade is an example of the SCOTUS using a substantive conception of due process).



 

How do these principles interact with more serious offenses, like murder? See R v Martineau: consideration of felony murder/constructive murder - death of a person caused by another but while accused is in the process of committing another criminal offense.

 

NOTE s. 231(5) is NOT a constructive murder provision - it is concerned with causation.



 

Constructive murder

There is mens rea for the other offense, but not for subjective or objective foresight of death.

 

PRINCIPLES OF FUNDAMENTAL JUSTICE



That the morally blameless not be punished.

That the level of moral blameworthiness has to be proportionate to the punishment and the stigma.

 

REFERENCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT [1986] SCC


 FACTS

BC asked the SCC whether s. 94(2) of the MVA, which created an absolute liability offense with a punishment of imprisonment, was constitutional w.r.t the Charter.

RULING

No, s. 94(2) is not constitutional. It's a substantive principle of fundamental justice that society not punish the morally innocent. Combining absolute liability and imprisonment creates this possibility, and therefore violates the principle of fundamental justice. Even the possibility of imprisonment would be sufficient to render this section unconstitutional. Administrative efficiency is not sufficient to justify a violation of s. 7.

RATIO

Absolute liability offenses cannot carry prison terms, as this would violate s. 7 of the Charter.

Fundamental justice has both substantive and procedural aspects.


R v VAILLANCOURT [1987] SCC


 FACTS

Armed robbery, accomplice had gun, client killed. A convicted of second degree murder. A explicitly told his friend beforehand that he did not want to have guns involved. During the robbery, his partner fired a shot and someone was killed.

RULING

Ruling for A –test for constitutionality: would it be possible for a conviction for murder to occur under s. 230 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue. SCC holds that it is a violation of s. 7 of the Charter to convict someone of murder without AT LEAST objective foresight of death ("ought to have known"). Section 230(d) is unconstitutional and "ought to have known" is read out of s. 229(c).

RATIO

Crimes with significant stigma, such as culpable homicide and constructive murder, require at least proof of objective foresight of death, and sometimes subjective foresight as well.


R v MARTINEAU [1999] SCC


 FACTS

A’s partner killed two people during a robbery. A convicted of murder by s. 230 which raises culpable homicide to murder where A intends to inflict bodily harm to facilitate a crime. Martineau testified that he intended to commit a crime but not to commit murder.

RULING

Constructive murder provisions (sections 230 and 229(c)) are unconstitutional. Martineau acquitted.

RATIO

Murder requires intention to cause death or inflicting bodily harm subjectively knowing death is likely to ensue: SUBJECTIVE FORESIGHT OF DEATH.

Homicide is not necessarily an offence - the general descriptor of causing the death of a human being. Homicide can be culpable or not culpable - the latter is not an offence.

 Culpable Homicide



 

AR

MR

Conduct

Unlawful act OR
criminal negligence

Intent to kill OR
recklessness

Consequence

Causing death of a
human being

 


R v SHAND [2011] ONT CA


 FACTS

A shot the victim while attempting to steal some marijuana. Evidence from a variety of witnesses was contradictory as to whether the shooting was intentional. The trial judge charged the jury that A could be convicted of murder under s. 229(c) even if the shooting was unintentional, if it could be shown that in pursuit of an unlawful object, he committed a dangerous act that he knew was likely to cause death. A was convicted of second degree murder, appealed on basis that a conviction for murder requires at a minimum intent to cause death, or bodily harm that is known to be likely to cause death, in order to comply with the Charter. An unintentional killing cannot be murder.

RULING

Appeal dismissed - based on the wording of s. 229(c), only the object must be unlawful, and that the act causing death need only be sufficiently dangerous that a reasonable person would know that doing it was likely to cause death.

RATIO

Martineau should be interpreted as holding that subjective foresight of death is the constitutional minimum mens rea for murder, and not intent to cause death.

 

R v DESOUSA [1992] SCC


 FACTS

A 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. Trial judge holds that s. 269 violates s. 7 of the Charter because the "unlawfully" aspect of the offence applies to any violation of the Criminal Code, and creates a possible absolute liability offence.

RULING

Appeal dismissed - so long as underlying unlawful act is not absolute liability, s. 269 is constitutional.

RATIO

  1. Underlying unlawful act can’t include absolute liability offences if that interpretation would combine imprisonment and absolute liability.

  2. Not all offences require subjective foresight - Martineau requirement of subjective foresight is confined to murder. Objective fault can be constitutional for less serious offences.

  3. Not a principle of fundamental justice that every element of the actus reus requires mens rea - only that there is sufficient mens rea for the offence overall.

Unlawfully Causing Bodily Harm



AR

MR

Conduct

Unlawful act
[not absolute liability]

MR of the
unlawful act

Consequences

Bodily harm

Objective foresight
of bodily harm

  

R v CREIGHTON [1993] SCC


 FACTS

A injected himself and his two consenting companions with cocaine. Martin immediately began to convulse and stopped breathing. They were unsuccessful in resuscitating her. Caddedu tried to call 911 but A’s threats prevented him from doing so. They cleaned any signs of fingerprints from around the house and then left. Caddedu came back several hours later and called the police. A was an experienced drug user.

Creighton was charged under s. 222(5)(a) and (b) of the Criminal Code of Canada for manslaughter. Two types of manslaughter: unlawful act manslaughter and manslaughter by criminal negligence.



RULING

Ruling for Crown – offence of unlawful act manslaughter does not violate s 7 of the Charter. The majority dismissed the proposition that there be symmetry between all the elements of the offence and the mental elements. Symmetry would require that the accused could foresee death. This would require the courts to abandon the thin skull rule, and so cannot be the case. Rather symmetry remains a rule with clear exceptions and cannot be a principle of fundamental justice.

RATIO

  1. The mens rea of unlawful act manslaughter is composed of the mens rea of the underlying offence and objective foresight of bodily harm

  2. There is no personalization short of incapacity in the test for objective foresight of bodily harm.

 

Unlawful Act Manslaughter

AR

MR

Unlawful act

Associated MR

Causing death

Objective foresight
of bodily harm

CONCURRENCE

LAMER CJ: There should be at least objective foresight of the actual consequence as defined in the actus reus which, in the crime of manslaughter, is death. Lamer CJC stressed the importance of symmetry, i.e. the idea that the fault requirement should correspond to the precise elements defined by the actus reus. Rejects thin skull argument. The objective standard should take into account the experiences of the accused and their particular "human frailties" that are out of their control.

  

Decision Politics 

McLachlin

Lamer

LaForest

4

4

1

 

LaForest concurs with McLachlin because of the clarity of her test, despite his preference for a subjective standard for fault.

 



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