Law 120 criminal



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LAW 120

CRIMINAL




Condensed Annotated Notes



TABLE OF CONTENTS


1.INTRODUCTION TO CRIMINAL LAW  3

R v MOYER (1994) SCC 4

2.PROVING THE CRIME  4

R v LIFCHUS [1997] SCC 5

 R v JHS [2008] SCC 6

R v STARR [1997] SCC 6

R v OAKES (1986) SCC 6

R v DOWNEY [1992] SCC 7

R v WHYTE [1988] SCC 9

3.ELEMENTS OF THE OFFENCE 9

4.THE ACTUS REUS 10

A. The Principle of Legality 10

FREY v. FEDORUK [1950] SCC 10

B. Statutory Interpretation and the Actus Reus 11

R v. MOQUIN [2010] MBCA 11

C. OMISSIONS 11

R v. FAGAN [1968] UK CA 11

R v. MOORE [1978] SCC 11

R v. THORNTON [1991] Ontario CA 12

D. VOLUNTARINESS 12

R v JIANG [2007] BCCA 13

R v LUCKI [1955] BCCA 13

5.CAUSATION 13

R v SMITH [1959] UK CA 13

R v. SMITHERS [1978] SCC 13

R v. HARBOTTLE [1993] SCC 14

R v. BLAUE [1975] UK CA 14

 R v. NETTE [2001] SCC 14

R v. JSR [2008] SCC 15

R v. MAYBIN [2012] SCC 15

6.MENS REA 16

R v BEAVER [1957] SCC 16

R v BUZZANGA & DUROCHER [1980] Ont. CA 17

R v THEROUX [1993] SCC 17

R v BLONDIN [1971] SCC 18

R v. BRISCOE [2010] SCC 18

R v. LEWIS [1979] SCC 18

R v. GORDON [2009] SCC 19

7.MENS REA AND THE CHARTER 19

REFERENCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT [1986] SCC 20

R v VAILLANCOURT [1987] SCC 20

R v MARTINEAU [1999] SCC 20

R v SHAND [2011] ONT CA 21

R v DESOUSA [1992] SCC 21

R v CREIGHTON [1993] SCC 22

8.DEPARTURES FROM SUBJECTIVE MENS REA 22

R v SAULT STE. MARIE [1978] SCC 23

R v CHAPIN [1979] SCC 23

R v RAHAM [2010] ONT CA 23

R v TUTTON (1989) SCC 24

R v JF (2008) SCC 24

R v HUNDAL [1993] SCC 25

R v BEATTY [2008] SCC 25

R v ROY [2012] SCC 26

9.MISTAKE 27

A.MISTAKE OF FACT 27

R v KUNDEUS [2012] SCC 27

R v PAPPAJOHN [1980] SCC 28

R v EWANCHUK [1999] SCC 28

B.MISTAKE OF LAW 29

R v CAMPBELL & MLYNARCHUK [1973] AB DC 30

LÉVIS (CITY) v TÉTREAULT; LÉVIS (CITY) v 2629-4470 QUÉBEC INC [2001] SCC 30

10.INTOXICATION & PROVOCATION 31

A.INTOXICATION 31

R v BERNARD [1988] SCC 31

R v DAVIAULT [1994] SCC 32

R v DRADER[2009] BC PROV CT 33

R v PENNE [1990] SCC 33

B.PROVOCATION 33

R v HILL [1985] SCC 33

R v THIBERT [1996] SCC 34

R v TRAN [2010] SCC 34

R v GILL [2009] ON CA 35

R v NEALY [1986] ON CA 36

11.MENTAL DISORDER 36

A.THE DEFENCE OF MENTAL DISORDER 36

R v COOPER [1980] SCC 37

R v CHAULK [1990] SCC 37

B.AUTOMATISM 38

R v RABEY [1977] SCC 38

R v PARKS [1990] SCC 38

R v STONE [1999] SCC 39

C.RELATIONSHIP WITH INTOXICATION 39

R v BOUCHARD-LEBRUN [2011] SCC 39

D.FITNESS TO STAND TO TRIAL 40

12.SELF-DEFENCE 41

6 ELEMENTS OF SELF-DEFENCE 41

R v LAVALLEE [1990] SCC 42

R v PÉTEL [1994] SCC 43

R v MALOTT [1998] SCC 43

INCONSISTENT SELF-DEFENCE PROVISIONS 44

R v McINTOSH [1995] SCC 44

R v CINOUS [2002] SCC 44

13.DEFENCE OF NECESSITY & DURESS 45

A.NECESSITY 45

R v PERKA, NELSON, HINES & JOHNSON [1984] SCC 46

R v LATIMER [2001] SCC 46

R v UNGAR [2002] ONT CJ 47

RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION) [2001] UK CA 47

R v WALDNER [2001] MB Prov Ct 47

MCMILLAN BLOEDEL v SIMPSON ET AL [1994] BCJ 47

HIBBERT v THE QUEEN [1995] SCC 48

R v RUZIC [2001] SCC 48

R v RYAN [2012] SCC 49

14.PARTICIPATORY LIMITS: ATTEMPTS & PARTIES 50

A.ATTEMPTS 50

R v ANCIO [1984] SCC 50

USA v DYNAR [1997] SCC 51

B.PARTIES 52

R v. BRISCOE [2010] SCC 52

R v FRASER [1984] BCCA 52

R v DUNLOP & SYLVESTER [1979] SCC 53

R v. JSR [2008] ON CA 53

R v THATCHER [1987] SCC 54

R v LOGAN [1990] SCC 54

15.SENTENCING PRINCIPLES AND PARAMETERS 55

A.PRINCIPLES OF SENTENCING 55

R v SWEENEY [1992] BCCA 56

B.MANDATORY MINIMUM SENTENCES 57

R v FERGUSON [2008] SCC 57

C.MAXIMUM SENTENCES 57

R v M(L) [2008] SCC 57

16.SECONDARY SENTENCING PRINCIPLES 57

A.ABORIGINAL PEOPLES AND SENTENCING PRINCIPLES 57

R v GLADUE [1999] SCC 58

R v IPELLEE; R v LADUE [2012] SCC 58

B.PARITY AND TOTALITY 59

R v AKEPEW [2012] SKCA 59

C.MITIGATING CIRCUMSTANCES 59

 R v NASOGALUAK [2010] SCC 59

  59

R v DRAPER [2010] MBCA 59





  1. INTRODUCTION TO CRIMINAL LAW 


Sources of Criminal Law:

  • Federal statutes

  • Constitution (1867 & 1982)

Unlike America, there is one criminal law for the entire country, and not for separate provinces/states. What happens if a province passes a law against assault? If you're charged under that statute, you could challenge its constitutionality and argue that the provincial law is ultra vires - outside the legislative competence of the provincial government.

 

s 91 (28) of BNA

The federal government has jurisdiction over penitentiaries.

s 92 (6) of BNA

The provincial government has jurisdiction over prisons and jails.

 

How does this work? Depending on the length of your sentence, you will go to a different institution. For sentences of less than 2 years, go to provincial jail. For sentences of more than 2 years, go to federal penitentiary. Judges will often give sentences of 2 years less a day for this reason.



 

s 92 (13) BNA

Provinces has jurisdiction over laws of property and civil rights in the province.

There is overlap with the powers of the federal government - there may be areas of dual competences. Laws governing driving and motor vehicles have both provincial and federal origin. Federal law prohibits driving with BAC above 0.08 and driving while impaired. BC and AB have recently passed laws prohibiting driving with BAC above 0.05. BC also gave the police and crown the option to go the criminal code route or by an administrative regime which didn't have criminal record ramifications but had no option of appeal (this aspect was later overturned). The administrative regime was preferred while it was in operation.

The Province can't create true criminal offenses (if you're convicted you get a provincial record, but not a criminal one). What happens if there's a conflict between provincial and federal law? Federal law supersedes provincial law = federal paramountcy. Canadian criminal law is codified in a centralized statute - the Criminal Code. There are a few serious indictable offenses in other statutes such as the Controlled Drugs Act and the Income Tax Act. The first Criminal Code came into effect on January 1, 1893 - abolished common law offenses.



s 9

Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 (a) if an offence at common law, (b) of an offence under an Act of the Parliament of England, or of Great Britain or of the United Kingdom of Great Britain and Ireland, or of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada.

This prevents the arbitrary application of the law by judges and allows Canadians to know what criminal offenses are simply by looking up the Criminal Code - no need to check common law. One exception to s. 9 - contempt of court. Contempt of court is widely understood, and is defined in common law rather than the Criminal Code.

 

s 8 (1)(3)

Common law defenses are still allowed. This allows the courts and judges to create common law defenses to charges. This allows for more flexibility and fairness - this ability can only help the accused, and not hinder them. Sometimes, legislatures will step in after the creation of a new common law defense and codify it in one statute or another.

Charter gives accused a number of basic rights which they can exercise before the court for remedies. One of the most common: if police obtained evidence in a manner that infringed on the accused's charter rights, that evidence may be excluded from the trial. The Charter also gives accused some positive rights - the right to a trial in English or French, or an interpreter in the event that the accused speaks neither language.



 

R v MOYER (1994) SCC


FACTS

A took photos in a Jewish cemetery pretending to pee on identifiable gravestones, and supplied the props. Charged with offering indignities to human remains contrary to s. 182(b) of the Criminal Code. The Court of Appeal overturned his conviction. Does `offering indignities' requires physical contact with human remains? Can indignities be offered to monuments? Criminal Code, R.S.C., 1985, c. C-46, s. 182(b).

RULING

Ruling for Crown (C) – physical interference with a dead body or human remains is not necessary under s. 182(b) and the indignities must be offered to the dead body or human remains (as opposed to monuments per se). However, where monuments mark the presence of human remains, offering indignities to the monuments constitutes offering indignities to the human remains that are marked by the monuments.

RATIO

Physical interference with a dead body or human remains is not necessary under s. 182(b), and offering indignities to the markers of human remains constitutes indignities to the human remains themselves.




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