Crim Outline – Berger – Spring 2009

• 
  does the law lead (create) or follow (reflect) social norms?
  
  • 
    Reflective or aspirational
    
    • 
      “reasonable person” standard = reflective
      
    • 
      HR Codes = aspirational
      
    • 
      Legislation/Constitution tends to be aspirational
      
    • 
      Common law tends to be more reflective
      
    • 
      Crim law has tended to be reflective, esp. defences
      
      • 
        Should it seek to do more? If yes, using violence of the state to show how society should be (on body of accused)
        
      • 
        BUT if you neglect aspirational duty of crim law, you neglect body of the victim
        

3 components of criminal liability:

1. 
   Actus Reus
   

• 
  “bad thoughts can’t be punishable” – Lord Mansfield in Scofield
  
• 
  criminal law does not usually punish omissions
  

2. 
   Mens Rea
   

• 
  “actus non facit reum, nisi mens sit rea” (an act does not make a person guilty unless his mind is also guilty)
  

3. 
   Absence of Defence
   

Criminal liability premised on (Ruzic):

1. 
   rationality – ability to reason right from wrong (know what you’re doing)
   
2. 
   autonomy – capacity to choose right from wrong (choose what you’re doing)
   

• 
  MR and AR must be sufficiently connected in time and in deed as part one of continuous transaction (idea in Meli, Miller) (term and law adopted by SCC in Cooper)
  

- accused lured man to cabin, beat him, thought he killed him, and threw him over cliff

- cause of death actually exposure at bottom of cliff

- Held: continuous transaction = guilty of murder

• 
  accused drives car onto foot accidentally, “fuck you, you can wait”
  
• 
  Fagan argues no coincidence of MR and AR
  
• 
  Held: assault was continuing, the act was never complete until after he drove off foot
  
  • 
    Events not separate enough to offence principle of contemporaneity
    
• 
  MR can be superimposed on an existing act
  
• 
  AR can be an act or an omission
  

- cigarette on mattress = house burns down, charged with arson

- unintentional act followed by an intentional omission to rectify = continuous transaction = guilty

- alternative theory: accused had duty to rectify situation

- accused strangled someone to death while blacked out

- if doctrine of contemporaneity were strictly upheld, accused can’t be guilty of murder

- an act may be innocent at the outset, but can become critical later when accused acquires knowledge of act but still refuses to change course of action

- SCC held: adopts Miller approach of continuous transaction = guilty of murder

- expressly adopts Fagan and Meli

1. 
   physical voluntariness
   
2. 
   act or omission
   
3. 
   sometimes involving certain circumstances
   
4. 
   sometimes involving causing certain consequences
   

1) Physical Voluntariness

- not mentioned in the Code, strictly common law

- fundamental principle of justice system that conduct cannot be criminal unless done voluntarily (Rabey, Parks, Daviault, Stone)

- Oliver Wendell Holmes in The Common Law 1881: “the act involves a choice

b/c it is unjust to make a man answerable for harm unless he exercised that choice” (Larsonneur)

- SCC: punishing someone for an involuntary act is unjust b/c it conflicts with the

assumption that people are autonomous, freely choosing agents (Ruzic)

• 
  has to be “your” act = bare mental element of Actus Reus
  
• 
  involuntary act can be
  
  • 
    conscious – twitch, spasm, fall, etc
    
  • 
    unconscious – mental disorder, sleepwalking, intoxication
    

- woman in England deported, then physically placed back in England (prohibited, but not her voluntary action)

- found guilty for being in England illegally

- case now inconsistent with principle of voluntariness

- “a defence that the act is involuntary entitles the accused to a complete and

unqualified acquittal
R. v. Ruzic 2001 SCC

- woman in Serbia forced by threat to her mother’s life to smuggle drugs into Canada, caught at border

- Accused acts are physically voluntary but morally involuntary

- but moral involuntariness is a defence under duress, does not negate AR

and MR

- also studied under Duress

- General principle: a person will not be criminally liable for an omission unless she is

under a legal duty to act

- legal duties to act arise in 2 situations (see Berger’s handout):

i) specific omission offences (designated and criminalized in Code)

ii) general omission offences (act as place holder for any duty you can

find)

• 
  Criminal Negligence (s. 180)
  
• 
  Public Nuisance (s. 219)
  
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  status offences no longer exist, if they did they’d be unconstitutional
  
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  Duties imposed by the law – either common law or statute (Popin)
  

1. 
   Federal Statutes
   

• 
  Most duties come from Code (see back of handout)
  
  • 
    Tort law also available here, but Code makes a statement about what society thinks
    
  • 
    These situations involve voluntary physical omissions in certain situations with certain consequences
    

2. 
   Provincial Statutes
   

• 
  apparently can be used in general omission offences, however provinces don’t have the power to substantively create criminal law
  
• 
  in Quebec, the positive duty to act imposed by … is left open for questioning
  

3. 
   Common Law
   

• 
  s. 9 of Code abolishes all common law offences except Contempt of Court
  
• 
  BUT, cases have imposed common law duties as part of Criminal Negligence (Popin) (though could have been interpreted to fit within Codified duties - see back of handout)
  

• 
  duty regarding Criminal Negligence causing death can come from statute or common law
  
• 
  imposes common law duty to protect your child from illegal violence
  
• 
  could have used s. 215 (1) (duty to provide necessities of life to dependents)
  

• 
  imposes common law duty to take reasonable care with dangerous items = Criminal Negligence
  
• 
  could have used s.79 (duty of care with explosives)
  
• 
  alternatively could have used s. 216 duty (those undertaking dangerous lawful acts to take care and use skill)
  

• 
  imposes common law duty to provide care and assistance to inmates in police custody
  
• 
  could have used s. 215 (1) (duty to provide necessities of life to dependents)
  
• 
  alternatively could have used s. 217.1 (duty of those directing work to reasonably prevent bodily harm of workers)
  

- donated blood to Red Cross knowing he was HIV+

- charged with Common Nuisance failure to discharge legal duty

- OCA: relied on common law duty to take care of your neighbor (Donoghue)

- SCC: doesn’t need to address common law issue b/c use duty from s. 216 of Code (duty for those undertaking to administer medical treatment to use reasonable knowledge and skill) = Thornton convicted

- does this really apply? He’s not administering the medical treatment

3) Circumstances

- must be tested to ensure MR matches them

- must be proven

- no requirement that a specific harm must be caused

- circumstances can turn a legal act into an illegal one

- ex: driving + circumstance of impairment = crime

- ex: s. 265 Assault: applying force isn’t a crime in itself – the lack of consent

makes it a crime

4) Consequences

- if consequence is an element of AR, must be proven by Crown BRD

- issue of causation: did actions cause consequences?

- nothing about causation mentioned in Code = entirely common law

- Need both:

- Factual Cause – necessary but not sufficient

- need a factual causal link, no matter how small

- rarely ever a problem (Winning, White)

- Legal Cause

- test for Smithers Causation used for almost all criminal law:

“contributing cause of death outside the de minimus (trivial) range”

• 
  above test reworded in Nette to a “significant contributing cause” (Now BOTH wordings are legally correct – in terms of charging a jury)
  
  • 
    L’H-D in dissent says this changes the meaning of Smithers and increases the threshold
    
  • 
    Majority says rewording does not change Smithers
    
  • 
    above test is constitutionally just (Cribbin)
    
• 
  Smithers implies that there may be multiple causes of death
  
• 
  Chain of Causation:
  
  • 
    An intervening cause will only break chain of causation where it is so overwhelming as to render the accused’s cause trivial
    
  • 
    Chain is rarely broken (Pagett, Blaue)
    
• 
  Thin Skull Rule applies
  
  • 
    Threshold for causation is low (lower than tort standard of “but for”) = must take victims how you find them
    

• 
  **Special Case for Causation** s. 231 (5) (6) (6.01) (6.1)
  
  • 
    specific language in Code where Smithers Causation does NOT apply
    
    • 
      “The murder is caused by the person while committing…”
      
  • 
    threshold for causation is higher (Harbottle Causation) – requires actual physical involvement in killing:
    

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  “action of accused must form an essential, substantial, and integral part of the killing of the victim”
  

• 
  Harbottle Causation applies only to the 4 Code offences in s. 231 (above) (Nette)
  

- accused applied for credit card, used proper name and address (only info used by creditors) but other info on application false

- information used by creditors was real = no causal link

- rare instance where no factual causation

• 
  son poisons mother, she dies of independent heart attack before poison kicks in = no factual causation
  

• 
  boys fight post-hockey game
  
• 
  Smithers kicks boy, but triggers malfunctioning epiglottis
  
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  Accused is guilty as long as his action is a contributing cause of death outside the de minimus range
  
• 
  Test: whether or not accued’s actions were a non-trivial or not insignificant cause of prescribed result
  

- accused stabs woman, she refuses blood transfusion at hospital and dies

- decision to refuse blood does not break chain of causation – accused put her in position to refuse blood
R. v. Pagett 1983 Ct. of Crim. Appeal (Eng.)

- accused uses pregnant woman as shield when police are shooting

- immediate (intervening) cause of death was gunshot by cope, but intervening

cause was because of accused’s unlawful actions
R. v. Harbottle 1993 SCC

- accused and other perp forcibly confine victim, other perp sexually assaults her, they discuss ways of killing her, other perp strangles her while Harbottle holds her legs to prevent her struggle

- accused beat victim and left him with non-life-threatening injuries, victim drowned in his own blood

- accused challenges constitutionality of Smithers causation

- Held: smithers causation is constitutional = accused is guilty of manslaughter

- accused robs house then hog ties woman, 48 hours later she dies of asphyxiation, Dr. says her hog tying contributed to her death

- Held: accused guilty

- reworded Smithers

- reaffirmed that Harbottle causation only applies to those 4 offences (above)

Mens Rea

• 
  “Mens rea exists to prevent conviction of the morally innocent” – McLachlin in Theroux
  
• 
  Tolson J. says MR is not about evil, not a moral concept (Berger disagrees)
  
• 
  Principle of Symmetry (Creighton)
  
  • 
    MR must attach to every element of AR (Pappajohn)
    
  • 
    NOT a PFJ, can be relaxed in following situations (predicate, result-driven offences) (Creighton – McLachlin)
    
    • 
      assault causing bodily harm
      
    • 
      Aggravated assault (Godin)
      
    • 
      Unlawfully causing bodily harm (DeSousa - Sopinka)
      
    • 
      Unlawful act manslaughter
      
• 
  Forms of MR – see chart
  
  • 
    Major difference b/w subjective and objective forms of MR (Tennant and Naccarato)
    
  • 
    Distinction b/w True crimes and regulatory offences:
    
    • 
      True Crime
      
      • 
        In Code = presume subjective MR (Prue & Baril)
        
      • 
        Not in Code = look at nature and seriousness of crime and severity of penalty (SSM)
        
    • 
      Regulatory Offence
      
      • 
        99% of time, if not in code it’s a reg. offence
        

• 
  Determining the proper MR:
  

**subject to constitutional restraints;**

1. 
   Has Parliament/legislature told us MR?
   

• 
  look at language: willful, reckless, etc.
  

2. 
   If statute is silent, have to classify
   

- can be any of the 4 subjective categories of MR (Buzzanga, SSM)

- this is only a presumption (although usually followed), wouldn’t necessarily be unconstitutional to lower the MR bar

- exception for stigma offences the MR MUST be

subjective (Martineau)

ii) If Not a True Crime, presume strict liability (Sault Ste. Marie)

• 
  3 step test (Prue & Baril) look at:
  

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

• 
  if an offence is in the Code, presumption that it’s a true crime = presumption of subjective MR unless there is a clear intention to the contrary
  
• 
  3 step test to determine whether an offence not in the Code is a true crime
  

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  highest form of MR
  
• 
  only required if the following words are explicitly stated in Code:
  
  • 
    intent
    
  • 
    willfully - **s. 429 ONLY exception**
    
    • 
      special definition for that section in Part 11 classifies “willfully” not as intent, but as recklessness
      
  • 
    for the purpose of
    
  • 
    means to
    
• 
  distinction b/w motive and intent in Steane is rejected in Canada
  
  • 
    desire is irrelevant
    
• 
  2 meanings of intent:
  

2) oblique/indirect intent: if goal is something else, but knows

another dire consequence is virtually certain/will occur, implied intent for the dire consequence

- these definitions confirmed for s. 281 in Chartrand

• 
  radio announcer physically threatened into broadcasting nazi propaganda during war
  
• 
  highlights difference b/w motive and intent
  
• 
  backed away from in UK, and NOT followed in Canada on issue of intent
  

- distinguishes b/w subjective and objective MR

• 
  accused charged with ‘willfully’ promoting hate in Quebecois community
  
• 
  distributed pamphlets to raise awareness, not to promote hate, but must have known hate would occur
  
• 
  Martin J: a person who foresees a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose…in order to achieve his ultimate purpose”
  
  • 
    ex. of indirect intent
    

• 
  accused had gun held to head, gunman made him buzz down a friend, knowing gunman would kill friend, which he did
  
• 
  accused charged with aiding and abetting murder
  
• 
  Statute of Aiding and Abetting murder uses “for the purpose of” = requires only subjective MR
  

• 
  did you subjectively know a fact?
  
• 
  Very similar to intent, difference is semantics
  
• 
  Only other FULL subjective form of MR (in addition to intent)
  

• 
  when someone is subjectively aware of the risk that his conduct could bring about a result prohibited by criminal law, nevertheless he persists despite risk (Sansregret)
  
  • 
    emphasis is on risk of consequence, not certainty (distinct from intent)
    
    • 
      = a lesser subjective form of MR
      
  • 
    emphasis on subjective awareness of risk, not objective risk (distinct from negligence)
    
• 
  definition of risk is underanalyzed, risk is usually obvious
  

• 
  person becomes subjectively aware of need for inquiry, declines to make inquiry because he does not wish to know the truth (Sansregret)
  
  • 
    accused didn’t actually have knowledge, but knowledge is imputed
    
• 
  words “knows” or “knowingly” in statute will include willful blindness
  
  • 
    essentially constructive knowledge (Duong)
    
• 
  emphasis is on deliberate ignorance, rather than action (distinct from recklessness)
  

• 
  victim had complained previously of sexual assault
  
• 
  she consented to sex under duress – feared her own safety
  
• 
  Held: accused was willfully blind to lack of consent
  

• 
  accused let murderer into apartment after hearing about a murder
  
• 
  accessory after the fact requires that accused “receives, comforts or aids a person knowing they’ve commited an offence”
  
• 
  accused argues he doesn’t know anything
  
• 
  Held: Duong was willfully blind
  

• 
  Decidedly objective MR in Creighton
  
  • 
    Personal characteristics irrelevant
    
  • 
    Creighton upholds constitutionality of objective MR standard except for stigma offences (see below)
    
• 
  ONLY applies where Code explicitly specifies
  
• 
  Defined in
  
  • 
    s. 219 explicitly states definition, defines state of mind
    
  • 
    Tutton: MR: showing through actions a “marked and substantial departure from conduct of a reasonable person that shows wanton and reckless disregard for the life or safety of others”
    

• 
  Distinct from civil negligence
  
  • 
    Civil negligence arises when there’s any deviation from standard of conduct (reasonable person)
    
  • 
    Criminal negligence requires a MUCH greater deviation
    
    • 
      “marked and substantial” – SCC says both words matter
      

- accused convicted of manslaughter for failing to provide necessities of life to 5-yr-old son

- refused to give insulin to diabetic son b/c of religious views

- SCC split on whether MR for criminal negligence is subjective or objective standard

= goes to lower court (OCA) = objective
R. v. Waite 1989 SCC

- criminal negligence = driving too fast while intoxicated, killed 4 people

- SCC divides again on objective/subjective MR
Penal Negligence

• 
  strictly objective MR (Creighton)
  
• 
  ONLY requires a marked departure, from conduct of reasonable person
  
  • 
    More than civil negligence, less than criminal negligence
    
  • 
    Arises rarely
    

• 
  **Constitutional Bar**
  
  • 
    constitutionally, penal negligence is lowest MR standard for a true crime (Hundal)
    
  • 
    PFJ: degree of moral fault required is proportionate to the gravity of the crime and seriousness of the penalty (Hundal)
    

• 
  Code uses words “dangerous” and “careless” and “negligent”
  
  • 
    Ex: dangerous driving, careless use of a firearm, arson by negligence
    

- Accused charged with dangerous driving causing death = penal negligence

- applied modified objective test (later affirmed as STRICTLY objective in Creighton

Creighton SCC 1993

• 
  Stabbed needle of drugs into girl’s arm and accidentally killed her
  
• 
  About unlawful act manslaughter (not criminal negligence)
  
• 
  for crimes with MR based on negligence (crim or penal), test is purely objective, takes into account NO personal characteristics of accused
  
• 
  objective MR is not unconstitutional as an MR standard except for stigma offences (and offences where language is clear)
  
• 
  manslaughter only requires objective MR
  
• 
  Lamer’s dissent:
  
  • 
    Maintains view that personal characteristics should be used to imagine ‘reasonable person’