Antonio Iacovelli Winter 2005 Advanced Criminal Law

Antonio Iacovelli Winter 2005

I.The Crime of Sexual Assault 3

A.The (Actus Reus) Issue 3

Criminal Code: Ss. 271-273.1 3

R. v. Chase [1987] Sexual assault does not require genital contact. 4

R. v. Barron (1984) The deceased impliedly consented to being pushed. 5

R. v. Ewanchuk [1999] Implied consent is never a defence for sexual assault. 6

R. v. Cornejo (2003) No “air of reality” to mistaken belief defence. 7

R. v. Hogg (2000) No consent when abusing position of authority. 9

R. v. Orpin (2002) Convoluted fact-driven case in which trial judge erred. 9

B.The Mens Rea Issue 10

1.Honest but Mistaken Belief in Consent 10

Pappajohn v. R. [1980] Honest though mistaken belief voids mens rea. 10

Sansregret v. R. [1985] Wilfully blind to the risk that fear vitiated consent. 11

Criminal Code: S. 273.2 12

R. v. Malcolm (2000) A clear test for s. 273.2(b). 13

R. v. Darrach (1998) Rape shield provisions in Code upheld. 13

2.“Air of Reality” Requirement 15

R. v. Bulmer [1987] Air of reality means considering whether there were reasonable grounds for mistaken belief. 15

R. v. Davis [1999] Clarifying “air of reality” test. 16

C.Admissibility of the Sexual History of the Complainant (the “Rape Shield” Statute) 16

Susan Estrich, Teaching Rape Law (1992), 102 Yale L.J. 509 16

R. v. Seaboyer [1991] McLachlin finds problems with s. 276. 17

Criminal Code: S. 276 18

R. v. Darrach [2001] S.276 is constitutional. It only excludes material that is irrelevant. 19

R. v. Nelson (2001) Victim’s previous sexual conduct correctly excluded. 20

R. v. Anstey (2002) Questioning as to the sexual nature of the activity should have been allowed because it’s meant to show improbability. 21

D.Admissibility of Medical and other Confidential Records of the Complainant 22

R. v. Mills [2001] Judges must balance rights of victims to privacy and rights of accused person to make full answer and defence when ruling on production of records. 22

R. v. Batte (2000) Likely relevance threshold: info must not already be available to defence and must have some impeachment value. 23

Guest Speaker: Dr Alana Furlong 25

II.Defences to Criminal Liability 25

A.Intoxication 26

R. v. Bernard [1988] Leary Rule: Drunkenness no defence against offences of general intent. 26

R. v. Daviault [1994] Limiting the Leary Rule: Accused can try to establish defence of extreme intoxication akin to automatism. 28

Criminal Code: S. 33.1 (Attempt to overrule Daviault) 29

R. v. Robinson [1996] Test on instructing the jury on intoxication defence. 30

B.Mental Disorder 30

1.In General 30

Criminal Code: S. 16 30

R. v. Chaulk [1990] Insanity defence is available even if accused was aware that an act is legally wrong. 31

2.The “First Branch”: Appreciating the Nature and Quality of the Act 32

Cooper v. R. [1980] “Disease of the mind” is a matter of legal definition and up to the jury to appreciate and determine the fact. 32

Kjeldsen v. R. [1981] Psychopathy is a disease of the mind but not exempted by 16(1). 33

R. v. Abbey [1982] Not appreciating the penal consequences of an act does not go to mens rea and does not evoke the first branch. 34

3.The “Second Branch”: Knowing that the Act was Wrong 34

Schwartz v. R. [1977] “Wrong” in s. 16 means “contrary to the [criminal] law.” 34

R. v. Oommen [1994] Focus on whether the accused was able to know that a particular act was wrong at the time of the act. 35

C.Involuntariness 37

R. v. Rabey [1980] Objective standard for psychological blow giving rise to a defence of automatism. Strong dissent. 37

R. v. Parks [1992] Sleepwalker killing elicits non-insane automatism defence. 39

R. v. Stone [1999] The external/internal cause theory lives on. 40

D.Necessity 40

R. v. Dudley and Stephens (1884) Law and morality must not be divorced absolutely. 41

Perka v. R. [1984] Necessity is an excuse, not a justification (3 requirements for the defence). 41

R. v. Morgentaler, Smoling, and Scott (1985) Necessity recognizes that law must be followed. 43

R. v. Latimer (2001) Can’t invoke necessity: missing requirements from Perka. 43

III.The Inchoate Crime of Attempt 44

A.The Mens Rea Element 45

Criminal Code: S. 24 45

R. v. Ancio [1984] Attempted murder mens rea = nothing less than specific intent to kill. 45

R. v. Sorrell and Bondett (1978) Equivocal act may not be enough to prove attempt. 46

B.The Actus Reus Element 46

R. v. Cline (1956) Each case of whether acts may constitute the actus reus for attempt must be determined on its own facts. Six principles. 46

R. v. James (1971) Any act going beyond mere preparation can constitute attempt. It doesn’t have to be the last act in the attempt. 47

Glanville Williams, “Wrong Turnings on the Law of Attempt” [1991] Crim. L. Rev. 417 48

R. v. Deutsch [1986] LeDain J.’s distinction between attempt and mere preparation. 48

C.The Doctrine of Impossible Attempts 48

R. v. Ladue (1965) Man charged with indecently interfering with a dead body can’t argue he didn’t know she was dead because then he’d have been raping her. 48

United States v. Dynar [1997] Can find guilt for attempting the impossible. 49

R. v. Severight (1993) Foetus killer charged with attempt murder. 50

R. v. Williams [2003] HIV-infected accused guilty of attempted aggravated assault because he had probably infected his partner before he knew he was a carrier but continued having sex with her after he found out. 51

IV.Parties to Offences: Aiding and Abetting 52

Criminal Code: S. 21(1) 52

R. v. Kulbacki (1966) Accused had authority to tell girl to drive safely. 52

Dunlop and Sylvester v. R. [1979] Evidence doesn’t point to rape participation. 53