Four instructors are better than one
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| Hi Prof. Benedet,
I'm one of the Mosoff/Diab pack and was wondering if we should be prepared to do an Oakes test analysis on tomorrow's exam? Signed, Four instructors are better than one Dear Four Instructors, Yes, you should know the components of the Oakes test, when it might apply in criminal law to the extent covered in the materials, who has to prove it (and to what standard). You will not have much in the way of facts to make an argument about whether it is satisfied, but you can draw analogies to the cases that you have. For example, in many cases you see the argument that a persuasive burden is not a minimal impairment because an evidentiary burden could have been used instead (see, e.g., Chaulk). I imagine that you are now Oakes experts after Con Law. **** Dear Professor,
Because our section was confused about whether intention encompasses recklessness, I want to clarify the law on attempts. Is this where intention to commit the AR of the predicate offence, and not recklessness, is required? I have in my notes re: Ancio that the A must have had a subjective intent to kill. And that recklessness is not enough. Thank you,
Dear Jumpy,
A party charged with any offence can invoke the common law defence, see Hibbert (citing Paquette) As for attempts, yes, Ancio finds that recklessness is not enough for attempted murder, intent to kill is required. The court reasons that the essence of an attempt is the intent, so it has to be a full intent. That reasoning logically extends to other attempted offences as well, although I’m not sure we have a definitive statement to that effect. ***** Hi Prof Benedet, I have a few last minute questions: A) What's the process for raising the automatism defence? Does it involve the following: Step 1 = the accused has to raise an Air of Reality to the claim that his or her actions occurred in a state of automatism (ie. in some dissociative state) Step 2 = the judge characterizes the automatism as either non-mental disorder or mental disorder automatism based on a consideration of the internal cause/continuing danger theories. Step 3 = the accused has to prove on a balance of probabilities either the non mental disorder automatism or mental disorder automatism based on the judges decision in step 2. THIS IS DISCUSSED IN STONE. I THINK THIS IS RIGHT. Step 1 is WHAT GETS IT BEFORE THE JURY; STEP 2 IS WHAT KIND OF AUTOMATISM THE JURY IS INSTRUCTED ON AND STEP 3 IS WHAT THE JURY IS DECIDING B) Is the main point(s) from R. v. Lavalee that the trier of fact can take into account the following:
THESE STATEMENTS ARE BOTH TRUE, BUT OVERSIMPLIFIED! C) Is it correct to say that an air of reality must be established for each of the three elements of the defence of self defence as outlined in s. 34(2)? And that in order to establish an air of reality for each of these elements, both the subjective and objective aspect of the element must be met. YES, THIS IS EXACTLY WHAT THE COURT DID IN CINOUS D) In R. v. JSR, factual causation is based on the "but for" test and legal causation is only concerned with whether or not factual causation (if found) is legally significant in light of potential intervening causes. Correct? THAT IS ONE WAY OF READING THE DECISION, I AGREE. DO YOU THINK THIS IS A HELPFUL WAY OF THINKING ABOUT CAUSATION? I WONDER IF THE DISTINCTION BETWEEN FACT AND LAW IS TOO RIGID TO BE USEFUL. E) In R. v. Creighton, is the MR for the unlawful act element of manslaughter based on a subjective (ie. intention) or objective (ie. marked departure) standard? IT DEPENDS ON THE UNLAWFUL ACT – IT WOULD HAVE WHATEVER MENS REA THAT ACT WOULD CORRECTLY HAVE. NOTE THAT IN DESOUSA MCLACHLIN J. SAYS THE UNLAWFUL ACT CANNOT BE STRICT OR ABSOLUTE LIABILITY. Thank you for your help! See you tomorrow. Signed, Robotic in Richmond Dear Robotic, See my answers interspersed in CAPS, above. ****
Hi professor Benedet, I was wondering about the defence of provocation. In the CCC it specifically says that no one will have been deemed to have given provocation by doing something he had a legal right to do. What does that mean exactly, because I would have thought the victim's in all of the cases we talked about had legal rights to do what they were doing. Thank you Studious in Steveston Dear Studious, This is discussed in Thibert. The court says “legal right” means more than just something that isn’t against the law (like taunting someone in a parking lot). It means exercising a function authorized by law. So you can’t say that a bailiff repossessing your car, or a social worker apprehending your children, is provocation. **** Dear Professor Benedet What is the ramifications of when someone technically commits a crime, but has the intention to undo it in the future (and perhaps they actually do). For instance, April 2008 exam. B was charged with 362(1)(b) obtaining credit under false pretence. Does it matter that he intended to fix the error and pay the bill? Does it speak to the MR? Or does it not matter since the false credit is criminalized and no consequence is needed. Thank you very much,
Dear Nervous, The real issue in this question is causation. There is a consequence (that credit is obtained by the false pretence). Here there is a false pretence and the obtaining of credit, but the fact that cards are always issued may be evidence that the falsehood is not the cause of credit being advanced. But it may amount to an attempt to obtain. In general, the fact that you plan to pay later is not relevant to whether you committed the offence, but it might mitigate your sentence. After all, you got the value of the credit. **** Hi Professor Benedet, I am just going over your April 2009 exam, and the accused is charged with aggravated assault contrary to s. 268(1) of the criminal code. I don't think we have any case that explicitly tells us what the AR/MR are of this offense, so am I right to say that: the AR of aggravated assault is : unwanted physical contract, directly or indirectly, with another person with a consequence of wounding, maiming, disfiguring, or endangering his life. And the MR is the subjective intent to apply force (ie-there does not have to be the intent to wound, maim, disfigure, etc...) Hope you can clear that up, Dumbfounded in Dunbar Dear Dumbfounded, We actually covered this offence in more detail in that year. The AR is correct. The MR is almost correct. The SCC has suggested that the MR of the consequence is objective – that a reasonable person would foresee bodily harm – see R. v. Godin. Personally, I think this is a bad approach and I like your formulation better. It is consistent with DeSousa, where the SCC says no mens rea for consequences is needed for assault bodily harm, and I am wary of adding MR to the consequences of assaults. But there you go. The SCC is very attached to objective foresight of bodily harm. Note that your job is to lay out the possible mens rea choices where you are not sure. ****
Dear Prof. Benedet, I just want to make sure that I am on the right track with the difference between constructive murder, and s.231(5) which was used in Nette. Is the key distinction that constructive murder moved all homicide to murder, which s.231(5) only moves killing that is already murder to 1st degree murder? I also had a second question on attempts. The language of s.24 seems very clear about "intent to commit an offence." I know Ancio says that recklessness is insufficient for murder, but is recklessness always sufficient to charge the accused under attempt to commit any offence? Also, is there such a thing as an attempt to commit a crime with objective MR (ie. criminal negligence causing death)? It seems really broad, but hypothetically possible to punish someone for a marked and significant departure from what a reasonable person would do that almost causes death. Signed,
Languishing in Langley, Dear Languishing, Constructive murder classified a group of killings as murder in the absence of an intent to kill. 231(5) classifies murders (with proof of intent to kill) committed along with other crimes of domination as first-degree for sentencing puposes. So there is no Charter problem because the subjective foresight of death is definitely proven. See above on the intent requirement for other attempts. Interestingly, in the very recent case of Briscoe, the SCC says that wilful blindness is enough for a party. But I digress. I can’t imagine attempted criminal negligence. If death is not caused, then it’s crim neg bodily harm. If you act with criminal negligence and no harm is caused, it isn’t an offence. Attempts are crimes of subjective fault. In the same way, no one is ever charged with attempted manslaughter. It’s aggravated assault. Directory: 2010 2010 -> Through the Roof 2010 -> 2004 ieee international topical meeting on microwave photonics technical digest 2010 -> The petition and case system 2010 -> Hr 116 Application for Employment with Hills and Dales 2010 -> Polimaster ltd V. Rae systems inc polimaster ltd.; Na&se trading co., Limited, Plaintiffs-Appellants 2010 -> The tandem project 2010 -> Cape Lookout National Seashore Historic Resource Study By 2010 -> Cape Lookout National Seashore Historic Resource Study By 2010 -> Ap u. S. History presidents list the Young Republic, 1788-1815 George Washington, 1789-1797 Download 24.6 Kb. Share with your friends:
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