2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11
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Table of ContentsEvidence and Proof 1 Burden of Proof 1 Quantum of Proof 2 Introduction to Actus Reus: Contemporaneity and Voluntariness 2 2. Act, Omission, Status or Circumstances 4 3. Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 is there express language of mens rea? If yes, it stands, subject to the following constitutional issues: 12 if there is no express language of mens rea: 12 Is the offence a true crime or a regulatory offence? 12 A.D.H. SCC 2013 ADH TEST, rebuttal of full mens rea presumption 13
3. Willful Blindness 15 THREE KINDS OF OBJECTIVE FAULT 15 R v Hundal 1993 SCC MODIFIED OBJECTIVE TEST 16 Stigma Offences Require Subjective Fault 21 Mistake of Law/Ignorance of the Law 23 Sexual Assault 25 ACTUS REUS 26 The focus is on whether the complainant’s words or conduct have positively confirmed his/her willingness to participate, rather than expressly reject it. 26 Consent is concerned ONLY with the complainant’s perspective 26 Where she testifies she did not consent and the trier of fact is convinced beyond a reasonable doubt that the complainant did not consent, the absence of consent is established 26 Where the complainant ‘consents’ because she believes she will otherwise suffer violence, this is absence of consent 26 It is open to the accused to argue that her actions and words raise reasonable doubt as to the assertion. Where this doubt is raised, the crown has not proved its case 26 The accused’s perception is only relevant once consent has been ESTABLISHED, because it works as a denial of mens rea based on mistake of fact 26 Three elements of sexual assault actus reus: 27 MENS REA 27 Historical Analysis 27 Evidentiary Provisions and History 28 Bill C-49: enacted in response to Seaboyer, essentially a codification of the suggestions. 29 Bill C-46: 30
1) intoxication could be a ground for an insanity defence if it produced a disease of the mind (s.16 of CC) 31 Specific Intent Offence 31 - 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) 31 General Intent Offence 31 -require only a conscious doing of prohibited act 31 (may not want the consequences- intend the actus reus but may not intend the consequences of the actus reus) 31 Murder 31 B&E, with intent to commit CPI 31 Touching child for sexual purpose 31 Theft 31 Assault w/ intent to resist arrest 31 Robbery 31 Possession of a weapon for purpose dangerous to public peace 31 Manslaughter 31 Assault, ACBH, Agg assault 31 Unlawfully causing bodily harm 31 Sexual Assault 31 Mischief 31 Pointing firearm 31 Impaired driving. 31 Arson (Tatton 2015 SCC) 31 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. 32 3) Evidence of drunkenness falling short of proved incapacity does not rebut the presumption that a man intends the course of his acts. 34
1. Mental disorder s.2 definition: “disease of the mind” 35 2. By reason of that disorder, the accused cannot understand or communicate as set out in s.2 36 R v Whittle 1994 SCC (Test for fitness to stand trial) 36 Procedural requirements for fitness to stand trial (part XX.1) 36
Is this burden of proof constitutional? 39 Substantive Aspects of NCRMD 39 1. Disease of the Mind 39 2. Incapable of appreciating the nature and quality of the act (Cooper) OR incapable of knowing it was wrong (Chaulk) 40 Parliament responds in 1992: part XX.1 41 2.Accused may be released to community but subject to conditions of supervision 41 3.Accused may be discharged absolutely. 41 Decision maker must take the health of the accused and the protection of the public into account 41 Must issue the disposition that is least onerous and restrictive on the liberty of the accused because they are not criminally responsible or blameworthy (so there are no issues of retribution or punishment) 41 Reform: Bill C-14 – came into force in 2014 42 Temporary Psychosis Caused by Voluntary Intoxication 44 Intoxication and Mental Disorder: note on Co-Occurrence 45 Distaste for NCRMD 46 Automatism 46 What is it? 47 Two kinds of automatism: 47 What is the burden of proof? 47 R v Stone 1999 SCC changes it to a reverse onus 47 Alternate Arguments: run all three if the facts are there 48 Mental Disorder Automatism vs. Non-Mental Disorder Automatism 48 What conditions have been recognized as non-mental disorder automatism? 48 R v Stone 1999 SCC leading case in this area 50 Five Propositions presented by the court: 50 Sleeping disorders: 52 Battered Spouses: 53 Issues with Automatism to keep in mind 53 Provocation 54 Evidentiary burden 54 Rationale: 54 Limits 54 Criticisms (very controversial defence) 54 s. 232 (1) 55 A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool 55 Amendment to s.232 – made defence only available if the conduct of the victim would constitute an indictable offence punishable by 5 years or more 55 Three Elements of Provocation 56 1. Accused was provoked by a wrongful act or insult AMENDED: what the victim was doing now has to constitute an indictable offence punishable by 5 years or more (look at supplement) 56 s. 232 (3) 56 It is not a wrongful act if they had a legal right to do it or if they do an act as a result of incitement by the accused to provide an excuse to cause death or bodily harm 56 2. The wrongful act or insult must be sufficient to deprive an ordinary person of the power of self control **OBJECTIVE TEST** 56 3. The accused must himself/herself be acting in response to the wrongful act or insult on the sudden and before there is time for the passions to cool **SUBJECTIVE TEST** 60
OLD LAWS 61 NEW LAWS – CIF March 2013 64 Self-Defence & Relationship Violence 66 Duress 70 Statutory defence (s. 17) and also common law. 70 This defence operates AFTER proof of actus reus and mens rea. The intent is there, but there is good reason for it. It excuses the action, rather than negating mens rea (Hibbert) 70 R v Ruzic – requirements of immediacy and presence violate s.7 72
R v Ryan 2013 (leading case! – Court tries to harmonize CL/stat defences) 72 Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> Course Outline as/huma 2650 0A Download 437.05 Kb. Share with your friends:
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