Mr review 6 ignorance of law 6
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- The Development of Strict Liability 38
- Absolute Liability and Burdens of Proof 41
- Review 44 Criminal Negligence: Objective Standards 44
- Mental Disorder and Automatism 53
- Self-Defence and Defence of Others 81
Criminal Law Term 2 Notes
Table of ContentsMR Review 6 IGNORANCE OF LAW 6 Mistake of Fact 6 R v Phillips 1978 (Supplementary) [Mistake of Fact: Philips may not have known the qualities of the weapon that made it prohibited] 6 Mistake of Law 7 Difference btw Mistake of Fact and Mistake of Law 7 Should reasonable interpretations of the law be treated differently? 8 Is s 19 too harsh on ordinary Canadians? 8 Jones and Pamajewon v The Queen 1991 SCC p 504 [Mistake of Law] 8 R v Custance 2005 (Supplemental) [Mistake of law: under belief that his actions constituted lawful compliance; sentencing is the method to “fix” mistake of law; people may have trouble complying] 8 R v Lambrecht 2008 Supplementary [Mistake of Law: Aware of qualities of weapon, unaware it was prohibited] 9 R v Klundert 2004 (Supp.) [Mistake of law: When one knowingly violates law and mistakenly believes the law is invalid] 9
R v Howson 1966 p 502 [s 19 does not affect offence if accused acted under colour of right] 11 R v Docherty 1989 p 503 [An offence requiring “willful” is exception to general rule expressed by s 19] 11 R v Prue and Baril 1979 p 505 [Accused lack of knowledge of licence suspension is mistake of fact] 11 R v MacDougall 1982 SCC p 505 [Makes arbitrary distinction btw Prue and Baril – example where court had different feelings as to what was correct/what was equitable] 12 MacFee [Mistake as to legality of consent is a mistake of law] 12 Mistake of Law: Conflicting Principles 12 R v Tavares 1996 (Supp) [CA was wrong saying it was Mistake of Fact, Actually Mistake of Law] 12 The Defence of Officially Induced Error 13 R v Cancoil Thermal Corporation and Parkinson 1986 p 507 [Accused must show reliance on erroneous legal opinion and that his reliance was reasonable] 13 R v Jorgensen 1995 SCC p 508 [6 step test for OIE] 14 Levis (Ville) v Tetrault (2006) [Passive ignorance does not satisfy DD] 15 Defence of Due Diligence 15 Molis v The Queen 1980 p 506 [Defence of Due Diligence does not work for researching to see if the act is illegal] 15 Forster v The Queen 1992 p 507 [Reaffirm Molis] 16
R v Pontes 1995 SSC p 516 [Due Diligence is Constitutionally required for Strict Liability Offences] 16 Statutory Reform Proposal 1987 p 521 17
General Basics 17 R v Chase SCC 1987 p 632 [Sexual assault test objective, based on circumstances] 17 R v V (KB) p 633 [SSC argue whether lack of intention for sexual gratification was a decisive factor weighing against finding a sexual assault] 18 Statutory Alterations 18 The Meaning of Consent 18 The Importance of Consent 18 R v Ewanchuk SCC 1999 p 659[no defence of implied consent for sexual assault, For AR: subjective consent is determinative – if they are credible;] 19 Where is consent legally impossible? 20 R v JA 2011 SCC (Supp) [Consent cannot be given in advance for unconscious sexual activities] 20 R v Welch 1995 ONCA (Supp) [Consent to sexual contact vitiated if bodily harm occurs (sadomasochism)] 22 Zhao 2013 ONCA 293 [Court unsettled over application of Jobidon, but still held Welch] 22 When Fraud Vitiates Consent 22 R v Maboir 2012 SCC (supp)[One guilty of aggravated sexual assault if he fails to disclose HIV status b4 intercourse and there is a realistic possibility of transmission] 22 R v DC 2012 SCC (Supp) [Even if low viral load, must still use condom to avoid conviction] 25
R v Hutchinson 2010 SCC (Supp) 25 R v Hutchison 2013 NSCA 26 SCC Decision on Hutchinson 28 Annotation, Janine Benedet, UBC 29
Pappajohn v The Queen 1980 SCC p 633 [A subjective mistake as to the facts of consent warrants an acquittal; Accused perception of consent is relevant, mistake of fact open defence to rape; mistake of fact does not have to be reasonable, reasonableness is only evidence for/against view that belief was actually held/intent was lacking; No room in facts for Ambiguity which would allow for Mistake of Fact] 30 Why can’t Pappajohn raise mistake of fact? 31 The Evidentiary Burden 31 Osolin v The Queen 1993 SCC p 640 [s 265(4) does not infringe presumption of innocence or right to trial by jury; SCC split on whether diametrically opposed facts preclude HMB. Cory = precludes. McLachlin says Not logically impossible, must meet “air of reality”] 31 Sansregret v The Queen 1985 SCC p 642 [Willful blindness regarding consent is culpable; if in the circumstances (ie. Happened before) accused should have known] 32 R v Seaboyer 1991 SCC p 645 32 Honest Mistaken Belief 33 Ewanchuk Key Points 33 New Statute 33 Christine Boyle “The Constitutionality of Bill C-49: Analyzing Sexual Assault as if Equality really mattered” 1999 p 652 34 R v Malcom 2000 [Recklessness vs. Willful blindness; quasi- objective test for “Reasonable steps”] 34 R v Cornejo 2003 ONCA p 655 [Reasonable steps may require positive action, depends on circumstances known to A at time] 35 Ewanchuk: Asserting "No Means No" at the Expense of Fault and Proportionality Principles. 1998 (Supp) [Current Sexual Assault Law is Repressive] by Don Stuart 35 Dippel 2011 ABCA [What is reasonable is gathered from the circumstances known from the accused and the context] 36 R v Esau [1997] SCC (Supp) [Plausible evidence without contradiction (due to lack of C’s memory) warrants air of reality and TJ presenting jury with defence of honest but mistaken belief.] 37 Variation of Plummer (raised in Esau) [What is reasonable will depend on: The circumstances known to the accused AND the surrounding context] 38 The Development of Strict Liability 38 Public Welfare or True Criminal Offences 38 Beaver v The Queen SCC 1957 [Possession (because it has a minimum sentence) requires MR/ knowledge that substance is a drug] 38 R v Peirce Fisheries 1971 SCC p 384 [No MR because low stigma offence] 39 R v Wholesale Travel Group Inc 1991 SCC [Strict Liability: Court upheld that BoP does infringe s 11(d) of Charter but justified under s 1 because make sense to impose BoP on accused in public welfare offences] 39 The Emergence of Strict Liability 40 **R v City of Sault Ste. Marie (SSM)[Creates strict liability offences, Accused has onus of proving defence of due diligence] 40 R v Ellis-Don Ltd 1992 SCC p 415 [Regulatory offences/defences must be proven BYD to be consistent with s 11 D] 41 Absolute Liability and Burdens of Proof 41 Constitutional Considerations 41 Reference re Section 94(2) of the BC Motor Vehicle Act [Absolute Liability and Imprisonment is an s 7 violation] 41 R v Pontes 1995 [Offence that precludes defences of mistake of fact/due diligence, mistake of law = Absolute Liability] 42 R v Ontario Inc; R v Transport Robert ONCA 2003 p 401 [AL offence that imposes minimal fine with low stigma does not trigger “state imposed psychological stress” contrary to s 7 security of the person] 42 R v Wholesale Travel Group Inc SCC 1991 p 406 43 Review 44 Criminal Negligence: Objective Standards 44 R v Tutton and Tutton 1989 p 450 [Must impose objective test where criminal negligence is considered, bc it is conduct of accused under question, not intention or mental state***Majority is not current Law] 44 R v Waite 1989 [Highspeed drunk driver killed 4 ppl, subject to objective test of criminal negligence. Mental element in criminal negligence is the minimal intent of awareness of the prohibited risk or willful blindness to the risk] 46 R v Gingrich and McLean 1991 [Most Courts Followed!: Pro Objective! Mclean: company president; Gingrich: driver; Truck brakes failed after experiencing problems over several days, result is fatal MVA, use Objective form of fault to decide criminal negligence] 46 R v Hundal 1993 [Pro Objective! Unanimous decision! Dangerous driving charge: accused drove overloaded truck through red light, MR for offence assessed objectively – BUT in context of all events surrounding incident] 46
Exception 47 R v Creighton SCC p 457 [For Manslaughter, Mental element in relation to foreseeability of the consequence (Death) must be established] 47
R v Beatty SCC 2008 [Momentary Lapse of attention, without more, cannot establish AR of Dangerous Driving] 51 R v Roy 2012 SCC [Cannot infer MR of marked departure, on AR of objectively viewed dangerous driving alone] 52
Procedural Elements of the Mental Disorder Defence 53 Choices involving Crimes and Mental Disorder 53 Unfitness to Stand Trial 53 R v Whittle 1994 SCC p 778 [Sopinka notes on Unfit to Stand Trial: Limited cognitive capacity to understand process and to communicate w/ council] 54 Who can Raise the Mental Disorder Issue? 54 R v Swain SCC 1991 p 780 [CANNOT BE FORCED INTO NCRMD VERDICT. Crown can raise defence of insanity after trier of fact has found accused guilty and b4 offence is charged. Can also raise defence if accused, through testimony, puts his capacity for criminal intent at issue] 54 Burden of Proof 55 R v Chaulk and Morrissette SCC 1990 [presumption of sanity violates presumption of innocence, but its justified] 55 Consequences of Mental Disorder as a Defence 56 Winko v BC (Forensic Psychiatric Institute) 1999 SCC p 785 [Part XX.1 of Code achieves goals of fair treatment of mentally ill and public safety, not unconstitutional] 56 Mental Disorder as a Defence 56 R v Simpson 1977 ONCA p 788 [Disease of the Mind includes personality disorders; DoM is a question of law] 57 Cooper v The Queen 1980 SCC p 789 [To support defence of insanity, disease must be of such intensity to render accused incapable of appreciating the nature and quality of the violent act or of knowing that it was wrong.] 57
Cooper v The Queen 1980 SCC p 792 [was the accused at the very time of the offence by reasons of DoM, unable to appreciate not only the nature of the act, but the natural consequences that would flow from it] 58 Simpson 1977 p 794 [Appreciation does not import requirement that act be accompanied by appropriate feeling about effect of act on other people] 58 R v Abbey SCC 1982 p 794 [A person who by reason of disease of mind does not “appreciate” the penal consequences of his actions is NOT insane within the meaning of s 16(2), must go to MR of offence] 58 Knowing that the Act is Wrong 59 R v Chaulk and Morrissette SCC 1990 [Accused incapable of knowing that act is Legally AND Morally wrong] 59 Supplementary reading on Andrew Goldstein [Compulsive Acts that you know are wrong and know what you are doing are criminally liable!] 60 R v Oommen SCC 1994 [If mental disorder creates a delusion that makes action not wrong at time of offence, even though you generally understand Canadian law, you can claim NCR] 60 TEST FOR NCRMD: Are they responsible? 60 R v Landry 1988 p 810 [Example of Oomen] 60 Automatism 61 Rabey v The Queen 1980 p 812 [NO Longer the Law!: Internal trigger = s 16, external trigger = automatism; Anything external that would not cause an average person to go into a dissociative state must be dealt with under s 16.] 61 R v Parks 1992 SCC [Sleep walking is valid for defence of automatism] 62 R v Stone 1999 SCC p 818 [Disease of Mind Inquiry Holistic Approach; how to determine non-mental automatism = focus on causes of automatism, continuing danger, other policy concerns; Judge choses what defences left with jury] 62 R v Luedeck 2008 ONCA p 835 [Decision of Stone maybe influenced by Winko, Looking at Automatism post Stone – 2 big changes] 64
Alcohol and Drugs 64 Drinking and MR 64 Voluntary intoxication 65 Intoxication and the General Principles of Liability: The Beard Test 65 The Legacy of Beard 66 Specific vs. General Intent 66 Common Law Defence of Intoxication 67 DPP v Beard HoL 1920 p 839 [if specific intent essential element of crime, voluntary drunkenness rendering A incapable, should be considered to determine if he had necessary intent of crime] 67 Intoxication and Specific Intent 67 Bernard v The Queen SCC 1988 p 853 [Has imported objective Reasonable Person Test when you use defence of intoxication] 67
Extreme Intoxication/Intoxication or Mental Disorder? 69 R v Daviault 1994 SCC p 862 69 R v Penno 1990 SCC p 868 [Intoxication could not be defence to offence in which it is an element] 71 Parliament responds to Daviault 71 Bill C72 (1994-1995) 71 Current Law on defence of intoxication 71 Self Induced Intoxication 72 R v Chaulk 2007 p 871 [Test for whether intoxicated state was self-induced] 72 R v Bouchard-Lebrun 2011 SCC [Malfunction of mind resulting exclusively from self-induced intoxication NEVER considered “disease of the mind”; but if underlying mental condition – then depends on source] 74
Introduction to Defences: 75 Where do Defences Come From? 76 Necessity: Introduction 76 Necessity: Controversial Judge-Made Defence 76
Conceptualization of Necessity as an Excuse or Justification 76 Perka v The Queen SCC 1984 [Defence of Necessity as Justification vs. Excuse; Excuse = morally involuntary, had no legal reasonable alternative] 76 Necessity and the Latimer Case 79 Latimer v The Queen SCC 2001 p 890 79 Duress 79 Duress: Elements 80
R v Ryan 2013 SCC (Supp) 80 Defences: Clarification of Subjective and Objective 81 Modified Objective Test 81 Comparison of Modified Objective Test to Objective Test of MR 81 Self-Defence and Defence of Others 81 Evidentiary Burden and Self-Defence 81 The New Self-Defence: Three components 82 Factors in Self- Defence (S 34 (2)) 83 R v Docherty [Castle Doctrine: If you are in your own home, you are not obliged to retreat and it will not be considered a factor under s 34, because your home is your last line of defence] 83 R v Bogue [A person defending himself against a reasonably apprehended attack CANNOT be expected to weigh to a nicety the exact measure of necessary defensive action] 83 Self Defence and Domestic Violence 84 R v Lavallee SCC 1990 p 955 [Expert evidence on battered women mental state should be heard by Jury for Self-Defence] 84 Isabel Grant, “The Syndromization of Women’s Experience” 1991 p 967 85
Elements of Provocation 85 Problems with the Control Element (#3) 86 S 232 of the Code 86 Criticisms of Provocation Defence 87 R v Parent SCC 2001 p 763 [intense anger alone cannot reduce murder to manslaughter] 88 Party Liability 89 Concerns with Party Liability 89 CDN Position on Party Liability 89 Modes of Party Liability (Section 21) Examinable 89 Section 21(1)(b): Aiding 90 R v Greyeyes 1997 p 531 [If your assistance is directed to purchaser, person charged is aiding possession, not aiding trafficking] 91 Dunlop and Sylvester v The Queen SCC 1979 p 537 [Mere presence is not enough to ground liability, must HELP and have knowledge about what is going to happen] 91 R v Jackson SCC 2007 p 542 [Mere presence is enough to ground acquittal, but if evidence can show more than mere presence, court can conclude guilty.] 91 R v Salajko 1970 p 539 [Mere presence not enough to convict] 91 Party Liability - Intent 92 R v Nixon 1990 p 543 [MR requirements are different btw principal and assister] 92 R v Helsdon ONTCa p 545 [21(1)(b) imposes HIGH MR, A must know or be willfully blind 92 R v Popen 1981 p 549 [Must know what is going to happen, must know that you are helping] 93 R v Palombi 2007 p 550 [Must know what you are doing is going to help, and also intend to help. By omitting to help does not automatically= encourage/intending to help] 93 Common Intention (21)(2): ONLY way to convict PARTY for UNFORESEEN EVENTS 94 R v Kirkness SCC 1990 p 553 [Minority: Show that he knew death was probable consequence after sexual assault] 94 R v Logan SCC 1990 p 561 [Someone can be charged under s21(2) for murder, but strike out words “ought to have known”, must have subjective intention] 95 Counselling as a Form of Participation (S 22) 95 R v O’Brien 2007 p 564 [If you push someone to do this, you can be guilty. Requires heavy level of encouragement] 95
Introduction 95 The Offence 95 Fundamental Points 95 Actus Reus 96 R v Cline ONTCA 1956 p 572 [Preparation vs. Attempt] 96 AR Examples: 96 Six Principles of Attempts from Cline 96 Deutsch v The Queen SCC 1986 p 573 [Preparation vs. attempt left to common sense judgement; Look at the relationship btw the nature and quality of the act & nature of complete offence] 97 Mens Rea 97 R v Ancio SCC 1984 p 574 [MR for attempted murder is not less than specific intent to kill] 97
R v Logan SCC 1990 p 576 [Change Ancio: MR for Attempted murder is Subjective foresight of death] 98 R v Sorrell and Bondett 1978 [If only AR evidence available, MR must be proved w/ extrinsic evidence. Without this, even though AR looks like crime, it may be insufficient to show acts done with intent] 98 MR Examples 98 Impossibility 99 US v Dynar SCC 1997 p 579 [Factually impossible attempts, as opposed to imaginary impossibility, should be convicted of attempt] 99 Abandonment 100
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